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ENCYCLOPEDIA 


OP 


SCOTS    LAW 


VOLUME  XI 


PRINTED  FOR 

WILLIAM    GREEN    &    SONS, 

BY  MORRISON  AND  GIBB  LIMITED, 
April  1899. 

Agents  in  London  .       .       .  Sweet  &  Maxwell  Ld. 

,,  „  ...  Stevens  &  Haynes. 

,,  Glasgow  .       .       .  John  Smith  &  Son. 

,,  America  .       .       .  Boston  Book  Co. 


GREEN'S    ENCYCLOPEDIA 


nf 


OF   THE 


LAW    OF    SCOTLAND 


EDITED   BY 


JOHN    CHISHOLM,   MA.,   LL.B. 

ADVOCATE,   AND  OF  THE   MIDDLE  TEMPLE   BARRISTEK-AT-LAW 


VOLUME    XI 


SABBATH  TO  STAMPS 


EDINBURGH 

WILLIAM     GREEN     &     SONS 

LAW    PUBLISHERS 

1899 


y 


T 


The  Articles  in  this  Volume  have  been 
Revised  by  their  respective  Authors  as  at 
March  1st,  1899. 


THE  AUTHOKS  OF  THE  PEINCIPAL  AETICLES  IN  THIS  VOLUME 

AEE  AS  FOLLOWS  :— 


Sale.  —  Professor     Eichard     Brown,    St. 
Mungo's  College,  Glasgow. 

Sale  of  Food  and  Drugs   Acts.  —  Dudley 
Stuart,  Advocate. 

Salvage. — Alexander  Moffatt,  AdA'ocate. 

Sanctuary,   Privilege   of.  —  W.    J.    Cullen, 
Advocate. 

Sasine   iiropriis    manibus.  —  John    Burns, 
W.S. 

Savings  Banls. — J.  "Wright  Forbes,  Advo- 
cate. 

School  Board  Elections,  Procedure  at. — P.  J. 
Blair,  Advocate. 

Sea  ;  Seashore. — J.  H.  Tait,  Advocate. 

Seamen. — F.  A.  Umpherston,  Advocate. 

Searches;  Search  for   Incumbrances. — H.    P. 
MacMillan,  Advocate. 

Search- Warrant. — A.  M.  Anderson,  Advo- 
cate. 

Seats  in  Churches.— Jon's  Cowan,  Advocate. 

Seaworthiness. — F.  A.  Umpherston,  Advo- 
cate. ' 


Secretary  for  Scotland. 
Advocate. 


L.  C.   Hallard, 


Securities. — W.  M.  Gloag,  Advocate. 

Seduction. — A.  T.  Glegg,  Advocate. 

Semipletia    probatio.  —  J.    B.    Ballingall, 
Advocate. 

Sentence.— A.  ;M.  Anderson,  Advocate. 

Sequels.— Hay  Shennan,  Advocate,  Sheriff- 
Substitute  of  Zetland. 

Sequestration. — AV.  .1.  Cullen,  Advocate. 

Servitudes.— J .  Bartholomew,  Advocate. 

Session,  Court  of. — Patrick  Smith,  Advo- 
cate, Slicrifl"  -  Substitute  .  of  Selkirk- 
shire. 


Sessions  of  the  Peace.  —  J.  Dean  Leslie, 
Advocate. 

Settlement  (Poor  Law).  —  A.  Orr  Deas, 
Advocate. 

Shee2x — A.  T,  Glegg,  Advocate. 

Sheriff;  Sheriff  Court.~J.  C.  Dove  Wilson, 
Advocate. 

Sheriff]  Executive  and  Administrative  Duties 
of.  —  M-s.  J.  G.  Mackat,  Advocate, 
Sheriff  of  Fife  and  Kinross. 


Ship ;    Shipping. 
Glasgow. 


J.    A.    Spens,   Writer, 


Ship's-Husbajid ;  and 

Shipmaster.— F.  A.  Umpherston,  Advocate. 

Short  Titles. — J.  A.  Fleming,  Advocate. 

Singular  Successors. — J.  H.  Tait,  Advocate. 

Sisting  Process.— John  Inglis,  Advocate. 

Slains,    Letters    of.  —  H.    P.    MacMillan, 
Advocate. 

Slander  of  Title.— A.  T.  Glegg,  Advocate. 

Slaughter  -  Houses,  etc.  —  Dudley  Stuart, 
Advocate. 

Small  Debt  Court  (Sheriff) ;  and 

Small  Debt  Court  (Jitstice  of  Peace).— J.  C. 
Dove  Wilson,  Advocate. 

Smoke  Nuisance,  etc.,  Acts. — J.  C.  C.  Broun, 
Advocate. 

Smuggling.— A.  M.  Anderson,  Advocate. 

Solatium.— J OHS  Inglis,  Advocate. 

Solicitor;  and 

Solicitors  in  the  Supreme  Courts. — J.  Hender- 
son Begg,  Advocate,  Sheriff-Substitute 
at  Greenock. 

Sovereign. — R.  Scott-Brown,  Advocate. 

Sowming  and  Rovming. — William  Hunter, 
Advocate. 


t  \J*^.'  1  -.J  O 


y 


T 

16% 
y.l] 


The  Articles  in  this  Volume  have  been 
Revised  by  their  respective  Authors  as  at 
March  1st,  1899. 


THE  AUTHOKS  OF  THE  PEINCIPAL  AKTICLES  IN  THIS  VOLUME 

AKE  AS  FOLLOWS  :— 


Sale.  —  Professor    Richard    Brown,    St. 
Mungo's  College,  Glasgow. 

Sale  of  Food  and  Drugs   Acts.  —  Dudley 
Stuart,  Advocate. 

Salvage. — Alexander  Moffatt,  Ad-s  ocate. 

Sanctuary,   Privilege   of.  —  W.   J.    Cullen, 
Advocate. 

Sasine   propriis    manibus.  —  John    Burns, 
W.S. 

Savings  Banks. — J.  "Wright  Forbes,  Advo- 
cate. 

School  Board  Elections,  Procedure  at. — P.  J. 
Blair,  Advocate. 

Sea;  Seashore. — J.  H.  Tait,  Advocate. 

Seamen. — F.  A.  Umpherston,  Advocate. 

Searches;  Search  for  Incumbrances. — H.    P. 
MacMillan,  Advocate. 

Search- Warrant. — A.  M.  Anderson,  Advo- 
cate. 

Seats  in  Churches.— J ony  Cowan,  Advocate. 

Seaworthiness. — F.  A.  Umi'HERSTON,  Advo- 
cate. 

Secretary  for  Scotland.  —  L.  C.   Hallard, 
Advocate. 

Securities. — W.  :M.  Gloag,  Advocate. 

Seduction. — A.  T.  Glegg,  Advocate. 

Semiplena    probed io.  —  .J.    B.    Ballingall, 
Advocate. 

Sentence. — A.  M.  Andkilson,  Advocate. 

Sequels. — Hay  Shexnax,  Advocate,  Slieriff- 
Substitute  of  Zetland. 

Sequestration. — W.  J.  Cullen,  Advocate. 

Servitudes. — J.  Bartholomew,  Advocate. 

Session,  Court  of. — Patuick  Smith,  Advo- 
cate, Sheriff  -  SuWtitute  of  Selkirk- 
shire. 


Sessions  of  the  Peace.  —  J.  Dean  Leslie, 
Advocate. 

Settlement  {Poor  Law).  —  A.  Orr  Deas, 
Advocate. 

Sheep. — A.  T,  Glegg,  Advocate. 

Sheriff;  Sheriff  Court. — J.  C.  Dove  Wilson, 
Advocate. 

Sheriff,  Executive  and  Administrative  Duties 
of.  —  My.  J.  G.  Mackay,  Advocate, 
Sheriff  of  Fife  and  Kinross. 

Ship ;  Shipping.  —  J.  A.  Spens,  Writer, 
Glasgow. 

Ship's-Husband ;  and 

Shipmaster. — F.  A.  Umpherston,  Advocate. 

Short  Titles. — J.  A.  Fleming,  Advocate. 

Singular  Successors. — J.  H.  Tait,  Advocate. 

Sisting  Process. — John  Inglis,  Advocate. 

Slains,  Letters  of.  —  H.  P.  MacMillan, 
Advocate. 

Slander  of  Title. — A.  T.  Glegg,  Advocate. 

Slaughter  -  Houses,  etc.  —  Dudley  Stuart, 
Advocate. 

S)na,ll  Debt  Court  (Sheriff);  and 

Small  Debt  Court  (Justice  of  Peace). — J.  C. 
Dove  Wilson,  Advocate. 

Smoke  Nuisance,  etc.,  Acts. — J.  C.  C.  Broun, 
Advocate. 

Smuggling. — A.  M.  Anderson,  Advocate. 

Solatium. — John  Inglis,  Advocate. 

Solicitor;  and 

Solicitors  in  the  Supreme  Courts. — J.  Hender- 
son Begg,  Advocate,  Sheriff-Substitute 
at  Greenock. 

Sovereign. — R.  Scott-Brown,  Advocate. 

Sowming  and  Roicming. — Williaji  Hunter, 
Advocate. 


VIU 


LIST  OF  AUTHORS 


Special    Cas^^.— Patrick    Smith,   Advocate, 
Sheriff-Substitute  of  Selkirksliire. 

Specific  Performance.- J.  C.  S.  Sandeman, 

Advocate. 
Specificatio.  —  J.    M.     Irvine,    Advocate, 

Lecturer    on     Roman    Law,    Glasgow 

University. 
Specification.— A.  J.  Alison,  Advocate. 


Specification  and  Diligence  for  Recovery  of 
Writings.— A.  A.  Grainger  Stewart, 
Advocate. 
Spei  emptio.—JoB.:^  Inglis,  Advocate. 
Spuihie.—C.  D.  Murray,  Advocate. 
Stamps.— The  Solicitor  of  Inland  Revenue 
(P.     J.    Hamilton  -  Grierson,     Advo- 
cate). 


GREEN'S    ENCYCLOPEDIA 


OF 


THE    LAW    OF    SCOTLAND 


Sabbath.— See  Sunday. 


Sabbath- Breaking". — The  due  observance  of  the  Sabbath  has 
been  enjoined  by  numerous  •  Scottish  statutes  from  1503  down  to  1701,  e.g. 
1503,  c.  83;  1591,  c.  122;  1593,  c.  63;  1594,  c.  198;  1663,  c.  19;  1672, 
c.  22 ;  1690,  c.  5  ;  1690,  c.  25  ;  1693,  c.  40  ;  1696,  c.  31 ;  1701,  c.  11. 

These  Acts  contain  various  prohibitions  against  holding  fairs  or 
markets ;  buying  and  selHng,  working,  gaming,  or  playing ;  resorting  to  ale 
houses  or  taverns;  salmon-fishing;  going  of  saltpans,  mills,  or  kilns; 
hiring  of  reapers,  and,  in  general,  all  use  of  ordinary  labour,  employment,  or 
sport,  on  that  day,  the  penalties  appointed  being  chiefly  pecuniary  fines. 

Thus  the  penalties  by  the  Act  of  1661,  c.  18,  are  £20  Scots  (£1,  13s.  4d.) 
for  the  going  of  each  saltpan,  mill,  or  kiln,  payable  by  the  heritors  or 
possessors ;  £10  Scots  (16s.  8d.)  for  each  shearer  and  fisher  of  salmon,  the 
half  payable  by  the  hirer,  and  the  other  by  the  person  hired ;  and  the  last- 
named  penalty  for  any  other  profanation  of  the  day.  Corporal  punishment 
is  authorised  in  the  case  of  non-payment  of  the  penalties,  "  but  this  the 
judge  could  not  probably  make  use  of  to  any  greater  extent,  for  a  first 
offence,  than  that  of  inflicting  a  short  imprisonment,  or  setting  the  oirender 
in  the  stocks  or  jugs"  (Hume,  i.  573). 

By  the  Act  1594,  c.  201,  for  a  third  offence  the  offender  was  declared 
to  have  forfeited  his  moveables,  and  placed  his  fierson  in  the  King's  will ; 
and  by  the  Act  1579,  c.  70,  the  goods  exposed  to  sale  in  a  fair  or  market  on 
a  Sunday,  or  in  a  kirk  or  kirkyard  on  any  day,  were  declared  escheated  to 
the  poor  of  the  parish. 

It  is  still  an  open  rpicstion  as  to  how  far  tlicsc  Acts  are  a]"»]ilicablc  at 
the  present  day.  In  the  case  of  Bate,  1870,  1  Coup.  495,  a  conviction, 
obtained  under  tliese  Acts,  of  the  offence  of  keeping  open  shop  and  selling 
confectionery  on  Sunday  was  quashed,  on  the  ground  that  the  offence  had 
been  tried  under  the  Summary  rrocediu'c  Act,  wliicli  was  in;ip])licable. 
But  the  plea  of  desuetude  was  repelled,  and  the  Sal)bath  Profanation  Acts 
field  to  Ije  still  in  force,  in  so  far  as  they  declare  the  keeping  open  shop  on 
Sunday  to  be  an  offence  by  the  law  of  Scotland. 

Again,  in  the  later  case  of  Nichol  v.  M'Neil  (1887,  14  R.  (J.  C.)  47), 

S.  E. — VOL.  XI.  1 


2  SAILOR 

observations  were  made  by  the  judges  on  the  question  whether  the  Act  of 
16Gl,c.  18,  is  in  desuetude.     {Vide  also  Johson,  1828,  7  S.  83;  Jennings, 

1852',  1  Irv.  115.)  , ,.  ,  .  ^    .     .        ,  • 

Provisions  a<-ainst  the  disturbance  of  pubhc  worship  are  to  be  found  m 
the  Acts  of  155!,  c.  17,  and  1587,  c.  27.  The  penalties  in  the  former  Act 
are  pecuniary,  and  in  the  latter  the  culprit  is  punished  by  escheat  of  his 
moveables.  Further,  in  a  later  Act  (10  Anne,  c.  7,  s.  9),  persons  disturbing 
concrrecrations  lawfully  assembled  for  public  worship  are  liable  to  a  penalty 
of  llOO  sterling  {Dougall,  1861,  34  Jur.  29).  ,      ,•       • 

The  execution  of  these  various  statutes  against  Sabbath  profanation  is 
committed  to  the  justices  (1661,  c.  38). 

Sailor.— See  Seamen;  Ship;  Shipmaster. 


Salaries.— See  Arrestment  (vol  i.  313);  Sequestration;  etc. 


Sale. 


TABLE  OF  CONTENTS. 


PAGE 


I.  General   Characteristics   of 

Sale — 
Distinguished  from  other  Con- 
tracts       4 

Combined  with  other  Contracts  4 
Sale  and  Lease  ....  5 
Hire-Purchase  .  .  .  5,  30 
Sale  on  Approval  .  .  5,  36 
Sale  or  Return  .         .         .  5,  36 

Price  as  an  Element  ...  6 
Absolute  Transfer  as  an  Element       7 

II.  Sale  of  Heritage — 

1.  Constitution  of  the  Contract — 
Parties — 
Agent,  Trustee,  Factor,  etc.     .       7 
Subject-Matter — 
Destruction  —  Complete    and 
Partial  .... 

Heritable  distinguished  from 

Moveable 
Adjuncts  of  Heritage 
As  affecting  Legality  of  Con- 
tract    . 
Price — 
How  fixed 
Consideration       other       than 

Money . 
Excambion 

Transfer  of  Ownership — 
Distinguishing  Feature  of  Sale 
Sale  or  Security 
Ex  facie  Absolute  Disposition  . 
Requisites  of  Transfer     . 
Consent  and  its  Expression- 
Consent  wanting     .         .         . 
Causes  voiding  apparent  Con- 
sent       

Requisites  of  Proof . 


9 

10 
10 

10 

11 

11 
11 

12 
12 
12 
13 

14 

14 

14 


PAGE 

Writing 14 

Offer  and  Acceptance       .  .14 

Locus  foenitenticB      .         .  .15 

Bei  interventus          .         .  .15 

Improbative  Writings      .  .     15 
Special  Kinds  of  Sale — 

Judicial  Sales .         ,         .  .15 

Sales  by  Auction     .         .  .16 

2.  Incidents  of  the  Contract — 

Effect  of  Conditions  .         .  .16 

Implied  Conditions          .  .17 

Express  Conditions .         .  .17 

3.  Performance  of  the  Contract — 
Seller's  Obligations — 

To  give  Deliver}^      .         .  .17 

To  give  a  Good  Title        .  .18 

To  grant  Warrandice       .  .     20 
Buyer's  Obligations — 

To  accept  Delivery  .         .  .22 

To  pay  the  Price  '   .         .  .22 

4.  Remedies — 

Specific  Implement          .  .     23 

Damages 23 

Suspension  and  Interdict  .     24 

III.  Sale  of  Goods— 

1 .  Formation  of  the  Contract .  .     24 
Sale  and  Agreement  to  Sell  .     25 
Capacity  to  Buy  and  Sell  .  .     25 
When  is  Writing  necessary  ?  .     25 
Sale  of  a  Ship    .         .         .  .26 
Subject-Matter  of  Contract  .     26 
Existing  Goods        .        .  .26 
Future  Goods  .         .         .  .26 
Goods  which  have  perished  .     26 
The  Price- 
Ascertainment          .         .  .27 
Usage  of  Trade         ...     28 
Trade  Discount        ...     28 


SALE 


3 


Legal  Tender  . 
Payment  under  Condition 
Proof  of  Payment    . 
Valuation  by  Third  Party 
Conditions  and  Warranties 
Suspensive  Conditions     . 
Resolutive  Conditions 
Warranty 
Stipulations  as  to  Time 


PAGE 

.  28 
.  28 
.  28 
.  28 
.  29 
.  30 
.  30 
29,  31 
29,  31 


Time  of  Payment  of  Price       29,  31 
Buyer's  Alternative  Remedies 

in  Scotland  .  .  .  29,  31 
Actio  quanti  minoris  .  .  31 
Rejection  of  Goods  .  .  29,  32 
Effect  of  Delay  ...  32 
Special    Subjects  —  Seeds  — 

Machinery  .  .  .  .32 
Damages    in    Diminution    or 

Extinction  of  Price  .  33,  51 
Implied    Undertaking    as    to 

Title,  etc 33 

Sale  by  Description  .        29,  34 

Caveat    Emptor    and     Excep- 
tions    ....       29,  34 
Implied  Warranty  of  Quality  30, 35 
Sale  by  Sample  .         .         .35 

2.  Effects  of  the  Contract  .        .     36 
Transfer  of  Property          .       36,  38 

SpecificandNon-SpecificGoods     38 
Future  Goods  .         .         .         .38 
Intention  of  Parties         .        36,  38 
Rules  for  ascertaining  Inten- 
tion       36 

Reputed  Ownership  .  .  38 
Security  in  the  Form  of  Sale  .  39 
Unfinished  Ships  .  .  .39 
Reservation  of  Eight  of  Dis- 
posal .  .  .  37,  40 
Transfer  of  Title — 
Implied  Consent  of  Owner  to 

Sale  by  others  .  .  .40 
Seller     in     Possession     after 

Ownership  passed         .       37,  40 
Buyer   in    Possession   without 
Ownership    .         .         .       37,  40 
Transfer  of  Risk — 
Prima  facie  passes  witli   Pro- 
perty   ....        37,  40 
Ri.sk      of      Deterioration      in 
Carriage       .         .         .        42,  45 

3.  Performance  of  Contract     .         .     41 
Duties  and  Rights  of  Seller- 
Duty  to  give  Delivery     .         .     42 
Duty  to  make  Contract  with 

Carrier  ...        42,  44 

Effect  of  Delivery  to  Carrier    41 ,  44 


PAOE 

Title  to  sue  Carrier  .         .     44 

Actual       and       Constructive 

Delivery  .  .  .  .42 
Goods    in     Hands    of     Third 

Persons         .         .         .       41,  43 
Sub-Sales         ....     43 
Documents  of  Title .         .         .44 
Duties  and  Rights  of  Buyer — 
Duty  to  accejit  Goods  and  pav 

Price  .  .  .  .  41,  44 
Right  of  Rejection  .  .  .44 
Right  to  Examine  .  .  .45 
No  Duty  to  return   Rejected 

Goods 45 

4.  Rights  of  Unjicnd  Seller  against 

the  Goods       .        .         .         .45 
Unpaid  Seller  defined        .        45,  47 
Unpaid  Seller's  Rights — 
Lieu         .         .         .         .        46,  47 
Retention  .         .         .46,  48 

Stoppage  in  transitu  .  46,  49 
Resale  .  .  .  .  47,  50 
Arrestment  or  Poinding  .       46,  50 

5.  Actionsfor  Breach  of  the  Contract     51 
Remedies  of  the  Seller — 

Action  for  Price  .  .  51,  52 
Interest  on  Price  .  .  51,  52 
Damages  for  Non-Acceptance  51 ,  52 

Remedies  of  the  Buyer — 
Damages  for  Non- Delivery     51,  52 
Specific  Performance        .       23,  61 

Right  to  Interest,  etc.,  reserved      52 

6.  Supplewentarg — - 

Right  of  Action  .         .       52,  54 

Implied  Terms  ...       52,  54 
Course  of  Dealing  and  L^sage     .     55 
Ready-Money  Sales  .         .     55 

Judicial  Recognition  of  Usage  55 
Sales  by  Auction  .  .  52,  55 
Payment  into  Court  in  Scot- 
land ....  53,  55 
Common  Law  reserved  .  53,  56 
Securities  excluded  .  .  39,  53 
Landlord's  Hvpothee  in  Scot- 
land     .     '   .         .         .       53,  56 

IV.  Sale  of   Incoiu-okeal   Move- 
ables       56 

Formation  of  ( 'ontract       .         .  56 

How  far  Writing  retpiired       .  56 

Incorporeal  Moveables  classi  fled  56 
Contract    distinguished    from 

Vesting         ....  56 

Shares  in  J(nnt-StockC()m])any  57 

Miscellaneous  Illustrations      .  57 

Performance  of  Contract  .         .  58 


I.    GENERAL  CHAKACTEIIISTTCS  OF  SALE. 


Sale  is  delined  l^y  Bell  a.s  "a  contract  for  transferring  property  in 
consideration  of  a  price  in  money "  {Com.  i.  458) ;  but  since  the  Sale  of 
Goods  Act,  1893,  this  definition  must  be  extended  to  meet  the  case  of  goods 
not  only  agreed  to  be  transferred,  but  actually  transferred  by  the  contract. 


4  SALE 

The  English  definition  prior  to  the  Act  was  "  a  transfer  of  the  absolute  or 
general^'property  in  a  thing  for  a  price  in  money  "  (Benjamin,  Sale,  1).  In 
other  words,  in  England  the  sale  transferred  the  property,  while  in  Scotland 
it  only  formed  an  agreement  to  transfer ;  the  actual  transfer  being  effected 
by  something  else,  such  as  infeftment  or  delivery.  In  Scotland,  as  well  as 
in  England,  a  contract  for  the  sale  of  goods  may  now,  by  its  inherent  force, 
transfer  the  property  withovi  deliver ij.  Where,  however,  the  subject  of 
sale  is  heritage  or  incorporeal  moveables,  neither  of  which  falls  mider  the 
Sale  of  Goods  Act,  the  sale  still  continues  to  give  only  a  titulus  transferendi 
dominii,  and  does  not  transfer  the  property  without  delivery,  or  an  equi- 
valent for  delivery  in  the  form  of  registration  or  intimation. 

A  general  definition  of  sale  as  applicable  to  Scotland  may  be  adapted 
from  the  definition  of  the  Sale  of  Goods  Act  (s.  1)  as  follows:  "  Sale  is  a 
contract  whereby  the  seller  transfers  or  agrees  to  transfer  the  ownership  of 
property  to  the  buyer  for  a  money  consideration  called  the  price."  In  this 
definition  the  term  "  ownership  "  has  been  used  as  less  ambiguous  than  the 
English  term  "  general  property."  The  latter  phrase,  though  now  imported 
into  Scotland  by  the  Act  of  1893  (s.  62  (1)),  itself  requires  definition,  which 
in  its  turn  can  only  be  supplied  by  a  reference  to  English  common  law. 
In  England  the  "  general "  or  "  absolute  "  property  in  goods  means  owner- 
ship, as  distinguished  from  the  "  special "  or  "  qualified  "  property  implied  in 
bailments,  such  as  loan,  factory,  carriage,  etc. 

As  a  rule,  it  is  not  difficult  to  distinguish  between  sale  and  other  con- 
tracts. It  being  ownership  that  is  transferred,  the  term  is  not  applicable  to 
any  contract  where  the  transferee  enjoys  a  less  complete  right  than  the 
person  transferring.  Thus  feus  and  leases  are  grants  of  the  use  of  property 
for  a  money  consideration,  but  these,  even  if  in  perpetuity,  cannot  properly 
1)0  called  sales.  No  doubt  the  feuar  is  in  a  sense  the  absolute  proprietor  of 
the  land  feued,  and  a  proper  sale  of  land  for  a  price  is  sometimes  by  arrange- 
ment converted  into  a  feu,  in  which  the  price  arranged  is  the  capitalised 
value  of  the  feu-duty.  So  also  the  tenant  under  a  long  lease,  say  for  99 
years  or  999  years,  or  in  perpetuity,  has  in  many  respects  the  full  rights 
of  a  proprietor,  and  is  commonly  treated  as  such  (see  Lease  ;  also  Eankine, 
Leases,  pp.  1,  123  seq.,  172  seq. ;  but  co7itra,  see  Wehvood,  1874,  1  K.  507). 
When  once  constituted,  the  right,  whether  of  feu  or  lease,  may  be  trans- 
mitted by  way  of  sale,  the  purchaser's  right  in  each  case  being  completed 
by  registration  in  lieu  of  symbolical  delivery  of  possession.  Again,  the 
presence  in  sale  of  a  price  serves  to  distinguish  it  from  donation  and  from 
exchange  or  barter.  Donation,  although  it  forms  a  transfer  of  ownership, 
implies  that  no  price  or  consideration  is  received  in  return.  Hence  as  a 
transaction  it  is  governed  by  legal  rules  entirely  distinct  from  those  of  sale. 
In  like  manner,  barter  is  an  exchange  of  goods  for  goods ;  excambion  an 
exchange  of  lands  for  lands ;  in  neither  case  is  there  any  price. 

No  doubt  other  contracts  are  ocasionally  grafted  upon  sale,  or  sale  upon 
other  contracts,  as  in  the  case  of  a  lease  where  the  lessee  has  an  option  to 
purchase  {e.g.  Robertson,  1874,  12  S.  L.  E.  11).  So  also,  where  a  grassum 
is  paid  or  promised  to  be  paid  to  a  lessor  in  addition  to  the  periodical  rent, 
it  is  held  to  be  an  alienation  of  the  rent  to  that  extent,  and  thus  practically 
a  sale  {Buccleuch,  1819,  1  Bligh,  339).  Again,  sale  is  often  combined  with 
locatio  operarum.  Indeed,  every  executry  contract  of  sale  may  be  said  to 
be  a  sale  of  the  material  together  with  a  hiring  of  the  work  done  upon  the 
article  furnished  (see  Bell,  Com.  i.  193  seq. ;  M.  P.  Brown,  Sale,  574  seq.). 
There  are  also  sales  so  near  the  border  line  of  other  contracts  as  to  obscure 
their  identity.     Thus  where  growing  turnips  were  sold  to  be  consumed  by 


SALE  5 

sheep  on  the  ground,  the  Court  seem  to  have  been  misled  by  the  analogy 
of  natural  grass,  and  to  have  doubted  whether  the  contract  amounted  to  a 
sale  of  the  turnips  or  to  a  lease  of  the  ground  {Ferguson,  1868,  6  S.  L.  E. 
68).  More  doubtful  contracts  have,  however,  been  classed  as  sales,  as  in 
the  case  of  an  agreement  for  the  supply  of  steam-power  {Clark,  1872,  10 
S.  L.  E.  152),  or  a  contract  between  author  and  publisher  resembling 
joint  adventure  {Cunningham,  1891,  18  E.  460). 

The  confusion  between  sale  and  lease  takes  an  acute  form  and  is  of  much 
practical  importance  in  connection  with  hire-purchase.  At  common  law 
the  ordinary  form  of  an  agreement  of  hire-purchase  forms  a  sale,  to  which 
is  appended  the  condition  that  although  the  possession  and  use  of  the 
article  is  transferred  to  the  buyer,  the  ownership  is  retained  by  the  seller 
until  the  last  of  certain  stipulated  periodical  payments  has  been  made 
{Murdoch  &  Co.  Ltd.,  1889,  16  E.  396).  It  is  not  a  conditional  sale,  for 
that  implies  the  fulfilment  of  a  condition  without  which  the  sale,  as  such, 
never  comes  into  existence,  e.g.  "  sale  or  return,"  "  sale  on  approval."  The 
condition  in  hire-purchase  does  not  attach  to  the  constitution  of  the 
contract,  as  in  the  case  of  the  other  contracts  mentioned,  but  is  merely 
a  term  or  incident  of  a  contract  already  established  (see  infra,  p.  30). 
But  it  is  a  very  important  incident,  seeing  that  the  apparent  owner- 
ship is  by  express  contract  separated  from  the  real  ownership,  and 
innocent  buyers  from  the  person  in  possession  are  often  deceived  (see, 
e.g.,  Murdoch,  v.s.).  A  remedy  was  attempted  by  the  Factors  Acts  (see 
now  Factors  Act,  1889,  s.  9,  and  Sale  of  Goods  Act,  1893,  s.  25  (2))  on 
the  principle  that,  as  between  two  innocent  sufferers  by  the  fraud  of 
a  tliird  person,  the  loss  should  be  borne  by  the  one  who,  by  intrust- 
ing the  possession  and  control  to  another,  had  enabled  the  fraud  to 
be  committed.  The  provisions  referred  to  have  been  held  to  apply  to  the 
ordinary  contract  of  hire-purchase  because  it  is  a  sale  {Lee,  [1893]  2  Q.  B. 
318,  approved  H.  L.  in  Relhj,  [1895]  App.  Ca.  471).  But  by  a  slight 
alteration  in  the  form  of  the  contract  it  ceases  to  be  a  sale,  and  becomes  a 
lease  or  contract  of  hire,  to  which  the  remedial  statutory  provisions  do  not 
apply.  The  contract  in  each  case  is  the  same  in  substance,  because  the 
so-called  "  hire  "  is  intended  to  form  in  the  long-run  an  instalment  of  the 
price.  The  legal  effects  are,  however,  entirely  changed  by  the  insertion  in 
the  contract  of  an  option  to  return  the  article  without  further  penalty  than 
payment  of  tlie  proportion  to  date  of  the  current  instalment  and  for- 
feiture of  the  instalments  already  paid  {Helhy,  v.s.).  The  option  to  return 
should,  however,  1  )e  stated  in  express  terms.  A  contract  to  make  payments 
at  stated  intervals  until  a  certain  amount  is  reached  will  be  construed  as 
a  present  obligation  for  the  future  payment  of  the  whole  sum,  and  as  such 
it  will  be  held  to  be  a  price,  and  therefore  subject  to  the  provisions  of  the 
Factors  Act  and  the  Sale  of  Goods  Act  {Jrull  Iloj^c  Works  Ltd.,  1895,  65 
L.  J.  Q.  B.  114;  sec  also  ratine,  [1895]  1  (,).  B.  653;  Strohmengcr,  1894,  11 
Times  L.  E.  7;  Horton,  1897,  13  Times  L.  E.  408;  APLarcn,  1896,  12  Sh. 
Ct.  Eep.  308). 

The  inchoate  contracts  of  "  sale  on  approval "  and  "  sale  or  return  "  arc 
not  sales,  but  are  capable  of  becoming  such  on  tlie  fulfilment  of  a  condition. 
From  their  nature  they  can  only  apply  to  corporeal  moveables  {i.e.  goods), 
and  they  are  in  the  strict  sense  of  the  term  "conditional"  sales,  seeing 
that  the  condition  attaches  to  the  constitution  of  the  contract  itself.  Prior 
to  1894  some  divergence  of  opinion  existed  as  to  whether  the  condition  was 
really  "suspensive"  of  tlie  sale,  or  wlictlier  it  was  not  rather  "  resolutive," 
to  the  effect  of  putting  an  end  to  a  sale  already  completed  (cf.  Broivn,  1880, 


6  SALE 

7  R.   427,    with  Macdonald,    1888,   15    K  988;   and  see   M.    V.    lirown, 
Sale,  431,  and  Brown,  ^aZe  of  Goods  Ad,  94,  95).     The  question  had  some 
importance  as  aftecting  property  and  risk,  but  any  doifbt  is  now  set  at 
rest  by  the  S.  of  G.  Act,  1893  (s.  18,  r.  4),  which  clearly  imphes  a  condition 
suspensive  of  the  sale.     Sale  on  approval  means  that  while  the  seller  is 
bound  to  sell  at  the  agreed-on  price,  the  prospective  buyer  is  not  bound 
until,  after    examination,  he   has    signified  his   approval  and    consequent 
acceptance.      In   hke   manner,  in  sale  or  return  the  owner  intrusts   the 
possession  to  another  on  the  footing  that  if  that  other  sells  or  disposes  of 
the   article  the   transaction  as  between  the  original  parties  immediately 
becomes  a  sale,  but  if  the  person  to  whom  possession  is  thus  given  fails 
to  effect  a  sale,  he  may  return  the  article  to  the  owner  without  further 
obhgation.     Under  the  provisions  of  the  S.  of  G.  Act,  1893  (s.  18,  r.  4), 
any  act   on   the   part   of   the  "buyer"  which   signifies   that   he   intends 
to  become  the  absolute  purchaser  will  form  an  adoption  of  the  transaction. 
Thus,  pawning  the  goods,  being  inconsistent  with  the  free  power  of  return, 
transforms  a  mere  transaction  as  to  possession  into  a  contract  of  sale,  and 
gives  a   good  title  to   the   pawnee,  since   by   the   very   act  ^of    pawning 
the  pawner  acquires  a  title  as  owner  (Brown,  1880,  7  R.  427  ;  Kirlcham, 
[1897]  1  Q.  B.  201).     The  mere  fact  that  the  goods  when  handed  over  to 
the  "  buyer  "  were  accompanied  by  an  invoice  bearing  the  words  "  bought 
of,"  will  not  exclude  proof  that  the  contract  was  one  of  sale  or  return 
{iVoodrow,   1845,  7  D.  385).     It  has  been  suggested  that  a  person  lond 
fide  buying  or  receiving  in  pledge  goods  held  under  sale  on  approval  or 
sale  or  return,  is  protected  by  sec.  25  (2)  of  the  S.  of  G.  Act,  or  sec.  2  of 
the  Factors  Act,  but  the  former  only  applies  to  proper  sales,  and  the  latter 
is  only  applicable  where  the  title  is  derived  from  a  "  mercantile  agent "  as 
defined  by  the  Factors  Act  {Inglis,  1898,  25  E.  H.  L.  70  ;  Hastings  Ltd.,  [1893] 
1  Q.  B.  62).     The  same  effect  may,  however,  follow  at  common  law  from 
personal  exception  or  estoppel,  as  in  the  case  of  Brechin  Auction  Co.  Ltd., 
1895,  22  R.  711.      See   further,  as   to  sale  or  return,  Macdoncdd,  1888, 

15  r!  988. 

The  question  what  forms  a  price  so  as  to  bring  a  transaction  within 
the  nomen  Juris  "  sale"  is  sometimes  attended  with  difficulty.  Thus  where 
a  private  firm  consisting  of  eight  partners  resolved  to  form  themselvesinto 
a  limited  company,  a  conveyance  of  the  whole  assets  Ijy  the  partnership  to 
the  company  was  held  to  be  a  "  conveyance  on  sale  "  in  terms  of  the  Stamp 
Acts,  and  therefore  liable  to  ad  valorem  stamp  duty  on  the  total  nominal 
capital  of  the  company  {John  Wilson  &  Son  Ltd.,  1895,  23  R.  18;  see  also 
Foster  &  Sons,  [1894]  1  Q.  B.  51G).  It  was  argued  that,  the  individual 
owners  being  in  each  case  the  same,  and  the  substance  of  the  transaction 
being  a  mere  conversion  of  title,  an  ordinary  deed  stamp  was  sufficient ;  but 
the  Court  were  of  opinion  that,  although  in  this  particular  case  there  was 
substantial  identity  between  the  partnership  and  the  company,  there  was 
no  legal  identity,  the  new  company  being  by  statute  a  corporation  having 
an  identity  distinct  from  that  of  its  constituent  members.  "  There  is  no 
exhaustive  definition  of  sale  in  the  Stamp  Duties  Act,  but  there  is  a  series 
of  clauses  in  which  a  number  of  cases  which  look  a  little  different  from 
sale  are  placed  under  that  category.  .  .  .  Where  land,  or  a  universitas  or 
capital  stock  being  the  subject  of  sale,  is  given  in  exchange  for  securities 
or  shares,  the  securities  or  shares  are  considered  to  be  the  equivalent  of  a 
price,  and  the  value  of  the  securities  or  shares  is  charged  with  duty 
as  consideration  money  "  (per  Ld.  M'Laren,  23  R.  at  pp.  23,  24).  In  like 
manner,  a  decree  of  Court  conveying  the  subject  of  a  heritable  security 


SALE  7 

to  a  creditor  in  virtue  of  the  Heritable  Securities  (Scotland)  Act,  1894, 
must  carry  an  ad  valorem  stamp  applicable  to  the  sum  at  which  the  lands 
were  last  exposed,  or  at  which  they  were  bought  in  {Inland  Revenue  v. 
Tod,  1898,  25  E.  H.  L.  29).  It  is  significant  that  in  the  form  of  decree 
appended  to  the  Act,  the  sum  referred  to  is  called  the  "  price  "  (57  &  58 
Vict.  c.  44,  Sched.  D ;  see  also  Huntingdon,  [1896]  1  Q.  B.  422). 

The  existence  of  a  completed  and  absolute  transfer  is  of  importance  in 
distinguishing  sale  and  donation  from  donation  mortis  causa  and  security. 
See  generally  on  this  head,  Lord  Advocate  v.  M'Court,  1893,  20  E.  488. 
The  distinction  between  sale  and  security  will  be  afterwards  noticed  under 
the  general  headings  applicable  respectively  to  heritable  and  moveable 
sales.  Other  characteristics  of  sale  will  also  be  incidentally  mentioned 
under  these  headings. 

II.   SALE  OF  HEEITAGE. 

The  law  of  Scotland  in  regard  to  immoveable  property  is  founded  on  the 
feudal  system,  and  thus  differs  from  that  of  England,  where  the  original 
relation  between  the  Crown  and  the  chief  lords  or  tenants  in  ccqnte,  and 
between  the  lords  and  their  dependants,  has  long  ceased  to  exist.  (See  as 
to  sales  of  real  estate  in  England,  Vendoe  and  Pukchasek,  in  Unci/,  of 
Enrjlish  Laws.)  This  branch  of  the  law  of  sale  must  therefore  be  treated 
exclusively  from  a  Scottisli  point  of  view. 

I.  Constitution  of  the  Contract. 

Every  contract  requires  two  or  more  parties  legally  capable  of  giving 
consent,  and  the  consent  must  be  expressed  in  such  form  as  the  law 
prescribes.  In  sale,  there  must  in  addition  be  a  subject-matter,  a  transfer 
or  agreement  to  transfer  the  ownership,  and  a  price.  There  may  also  be 
specialties  connected  with  the  kind  of  sale  or  the  conditions  attached  to 
the  contract.  The  constitution  of  the  contract  of  the  sale  of  heritage  will 
therefore  be  considered  under  the  following  heads:  (1)  Parties,  (2)  Subject- 
matter,  (3)  Price,  (4)  Transfer  of  ownership,  (5)  Consent  and  its  expression, 
(6)  Special  kinds  of  sale. 

1.  Parties. — The  seller  must  either  be  ow^ner  or  act  under  a  valid  power 
from  the  owner  or  from  the  Court.  Where  an  agent  is  employed  to  sell  or 
buy  heritage,  it  is  not  necessary  that  the  mandate  be  in  writing.  Contrary 
to  the  usual  rule  of  the  law  of  Scotland,  onerous  obligations  relating  to 
heritage  may  be  incurred  through  an  agent  without  the  obligant  being 
]tcrsonally  a  party  to  any  written  document  {Boswell,  1811,  Hume,  350; 
and  see  JJickson,  Evidence,  s.  570).  The  same  exception  exists  in  England. 
"An  agent  either  for  purchase  or  sale  of  an  estate  may  be  appointed 
by  word  of  mouth  even  where  the  contract  is  required  to  be  in  writing 
by  the  Statute  of  Frauds"  (Dart,  Vendors,  etc.,  6th  ed.,  210).  Where 
an  agent  contracts  in  his  own  name,  it  is  in  the  power  of  the  other 
contracting  })arty,  on  discovering  the  principal,  to  hold  both  agent  and 
]irincipal  bound,  and  it  does  not  derogate  from  or  qualify  the  written 
contract  tliat  a  new  party  {i.e.  the  principal)  has  been  added  to  it 
{Truemnn,U\{),  11  A.  &  E.  589;  Iliggins,  1841,  8  M.  &  W.  834).  In 
Scotland,  where  an  agent  employed  to  purchase  heritage  has  taken  the 
title  in  his  own  name,  the  remedy  of  the  principal  may  be  confined 
lu  the  agent's  writ  or  oath  (Act  1006,  c.  25;  Dunn,  1898,  25  E.  461). 
lUit  wliere  a  law  agent  or  a  joint  adventurer,  instructed  to  buy  heritage, 
buys  fur  himself  in  breach  of  his  mandate,  tlic  Act  of  1696  does  nut  apply 


8  SALE 

{Home,  1877,  4  E.  977  ;  Dunn,  v.s.)  In  such  cases  mandate,  not  trust, 
is  involved ;  but  in  any  case  a  relevant  averment  that  the  constitution  of  the 
alleged  trust  is  due  to  fraud  will  exclude  the  Act  (Wink,  1867,  6  M.  77). 
Trustees  delegating  a  power  of  sale  to  a  factor  may  be  personally  liable  for 
the  factor's  actings  under  such  authority  {Thomas,  1832, 11  S.  162).  On  the 
other  hand,  where  a  buyer  has  notice  of  a  defect  in  the  selling  agent's  power, 
the  seller  may  reduce  the  sale  {Hamilton,  1818,  2  Mur.  38).  A  law  agent, 
though  professing  to  act  for  both  seller  and  buyer,  cannot  at  his  own  hand 
validate  improbative  missives  of  sale  {Mitchell,  1874,  2  E.  162).  A  trustee 
or  agent  professing  to  sell  heritage  not  belonging  to  his  constituent  may 
be  personally  liable  in  repetition  of  the  price  though  he  acted  hand  fide  and 
had  parted  with  the  proceeds  {Bald,  1847, 10  D.  289).  Testamentary  trustees 
have  in  the  ordinary  case  no  implied  authority  to  sell  heritage  {Allan,  1835, 
2  S.  &  iM'L.  333  ;  and  see  Brovmlic,  1879,  6  E.  1233,  per  Ld.  Shand,  at 
p.  1241) ;  but  the  trust  purposes  may  be  such  as  to  give  a  power  of  sale  by 
implication,  on  the  principle  that  "  where  a  man  declares  his  will  with 
respect  to  a  certain  event,  he  undoubtedly  wills  every  necessary  means " 
(Kames,  Equity,  5th  ed.,  p.  155  ;  Campbcirs  Trs.,  1838,  11  D.  153;  Graham, 
1850,  13  D.  420,  per  Ld.  Moncreiff,  at  p.  429). 

A  husband's  right  of  administration  does  not  empower  him  to  sell  his 
wife's  heritage  {Kennedy,  1848,  11  D.  171).  A  tutor  cannot  alienate  his 
ward's  heritage,  and  the  Court  will  only  authorise  such  alienation  upon 
"great  necessity"  or  "high  expediency"  being  shown  (C'o/^,  3  July  1801, 
E.  C. ;  Finlaysons,  22  Dec.  1810,  F.  C. ;  Fraser,  1810,  Hume,  889 ;  Wilson, 
1834, 13  S.  176  ;  Gilligan,  1898,  25  E.  876).  In  this  matter  the  Court  have 
even  set  aside  a  feu-right  previously  authorised  by  themselves  {Vere,  29 
Feb.  1804,  F.  C).  Such  derogation  from  the  nolilc  officium  places  the  Court 
in  "a  very  awkward  predicament "  (Fin/rt?/so?is,  22  Dec.  1810,  F.  C),  and 
throws  unnecessary  doubt  upon  the  title  of  a  purchaser.  The  words  of  Ld. 
Eldon  in  another  case  may  be  applied  here :  "  It  is  impossible  to  hold, 
without  establishing  a  doctrine  so  full  of  danger  and  so  frightful  that 
nobody  can  look  at  it,  that  if  a  purchaser  purchases  under  the  authority  of 
the  Court  of  Session  and  it  appears  that  there  is  a  mistake  in  their  judgment, 
that  the  purchaser  is  to  be  made  answerable  for  that  mistake  "  ( Wemyss, 
1824,  2  Sh.  App.  1,  at  p.  8).  A  tutor  will,  however,  be  bound  to  implement 
an  agreement  to  feu,  entered  into  by  the  pupil's  father  before  his  death 
{Aberdeen,  1823,  2  S.  527).  Where  in  any  case  the  authority  of  the  Coiirt 
is  necessary,  it  must  be  obtained  before  the  sale  {Clyne,  1894,  21  E.  849). 
Where  a  power  of  sale  exists,  it  may,  unless  otherwise  directed,  be  exercised 
either  by  public  roup  or  private  bargain  (Trusts  (Scotland)  Act,  1867,  s.  4). 
A  power  of  sale  attached  to  a  curatory  ends  with  the  death  of  the  ward 
{Duff,  1849,  11  D.  1054). 

Apart  from  stipulated  or  recognised  remuneration,  no  fiduciary  can 
make  personal  profit  by  transacting  with  the  property  under  his  charge. 
This  extends  to  prevent  an  agent  or  trustee  or  factor  from  buying 
debts  due  by  his  principal  or  constituent.  If  he  does  so  for  a  sum  less 
than  the  full  amount,  and  receives  from  the  delator  or  his  estate  more 
than  he  paid,  he  cannot  appropriate  the  surplus  to  himself,  but  must  com- 
municate the  "  ease"  to  his  principal  or  to  the  estate  {Murray,  1710,  Mor. 
9214;  Corsan,  1736,  Mor.  9504;  A.  S.,  25th  Dec.  1708).  For  a  like  reason 
a  tutor  cannot  buy  the  property  of  his  ward,  and  the  suggestion  of  Erskine 
that  he  may  do  so  where  the  sale  is  by  public  auction  does  not  seem  well 
founded  (Ersk.  i.  7.  19  ;  M.  P.  Brown,  Sale,  192 ;  but  see  as  to  interdictor, 
Kyle,  1826,  5  S.  128).     The  same  principle  prevents  any  trustee  or  fiduciary 


SALE  9 

from  buying,  either  directly  or  indirectly,  where  he  is  himself  the  seller 
{York  Buildings  Co.,  1795,  o  Pat.  378).      Thus  a  heritable  creditor  cannot 
purchase  the  subjects  sold  under  his  bond  (Taylor,  1846,  8  D.  400),  unless 
subject  to  the  special  provisions  of  the  Heritable  Securities  (Scotland)  Act, 
1894  (but  see  MaxvxU,  1823,  2  S.  130;  Browniwj,  1837,  15  S.  999).     Nor 
can  a  heritable  creditor  buy  through  the  medium  of  a  third  person  {Jeffrey, 
1826,  4  S.  722).     An  heir  of  entail  cannot  be  both  seller  and  purchaser  in 
a  sale  authorised  by  statute  (Lawrie,  1814,  2  Dow,  556).     A  trustee  or  com- 
missioner in    bankruptcy  cannot  purchase  any  part  of    the    sequestrated 
estate,  but  the  same  restriction  docs  not  apply  to  a  creditor  (Bankruptcy 
(Scotland)  Act,  1856,  s.  120).     Where  a  trustee  in  bankruptcy  attempted  to 
buy  through  the  medium  of  his  son,  it  was  held  to  warrant  a  petition  for  his 
removal  from  oilice  (Broion,  1848,  11  D.  338).     In  addition  to  the  sale  being 
ineffectual,  the  offending  trustee  is  liable  in  the  difference  between  the  price 
offered  by  him  and  a  lower  price  subsequently  realised  {Ahcrcrombie,  1851, 
13  D.  679).     It  was,  however,  held  in  one  case  that  the  sale  was  not  void 
but   only  voidable,  and  that  challenge  might  be  barred  by  acquiescence 
(Frascr,  1847,  9  D.  415).     A  law  agent  employed  by  the  trustee  is  not,  as 
such,  disqualified  from  purchasing  the  bankrupt's  estate,  but  the  relation- 
ship of  trust  may  render  the  sale  reducible  at  common  law  (NoUe,  1876,  4  E. 
77 ;  Euthcrfurd,  1891,  18  E.  1061).     In  England  the  general  principle  is 
strictly  applied  in  the  case  of  the  solicitor  for  an  assignee  in  bankruptcy. 
"  If  the  principle  is  right  as  to  the  assignee  under  the  commission,  (Y  fortiori 
it  is  necessary  to  adhere  to  it  in  the  case  of  the  sohcitor"  (per  Eldon,  L.  C, 
in  James,  1803,  8  Ves.  at  348).     A  law  agent  employed  by  the  seller  is  not 
entitled   to  purchase  for  himself  while  ostensibly  purchasing  for  another 
{M'Fhersons  Trs.,  1877,  5  E.  H.  L.  9) ;  but  an  advocate  who  had  acted  in  an 
application  to  the  Court  for  authority  to  sell,  was  held  not  precluded  from 
purchasing  {Wemj/ss,  1824,  2  Sh.  App.  1).     A  residuary  legatee  for  whose 
benefit  trustees  exposed  heritage  to  sale  by  auction  was  held  not  entitled 
to  purchase  (Faulds,  1859,  21  D.  587).     But  one  of   several  beneficiaries 
may  buy  trust  property  at  an  auction  sale  (Shiell,  1874,  1  E.  1083 ;  see  also 
Darling,  1838,  1  1).  213). 

2.  Subject-matter.— At  present  we  are  dealing  only  with  heritage,  but 
the  rule  is  common  to  all  sales,  that  there  must  be  something  to  which  the 
contract  may  attach.  If  one  sells  a  house  in  ignorance  of  the  destruction 
of  the  house  by  fire,  there  is  no  sale.  There  must  be  "  an  existing  some- 
thing to  be  sold  and  bought"  (per  Cranworth,  L.  C,  in  Couturier,  1856, 
7  H.^'l.  Cas.  673).  The  cliief  difficulty  arises  where  the  destruction  is  only 
partial.  The  rule  of  the  Eoman  law  was  that  if  the  greater  part  of  the 
house  had  escaped  the  fiames,  the  contract  was  not  void,  but  the  l)uycr  was 
allowed  a  deduction  from  the  price.  Further,  if  he  could  show  that  he 
would  not  have  entered  into  the  contract  at  all  if  he  had  known  of  the 
destruction  of  that  particular  part,  it  was  in  his  option  to  avoid  the  sale 
(Lifj.  1.  18.  57,  58).  This  rule  was  subject  to  exceptions,  according  to  the 
knowledge  of  seller  and  buyer  respectively  of  the  occurrence  of  the  loss, 
but  there  does  not  seem  to  be  room  in  our  law  for  similar  distinctions. 
The  question  with  us  is  whether  the  subject  of  sale  conthnies  to  answer 
the  description  of  the  thing  sold.  Possibility  or  impossibility  of  per- 
formance is  probably  the  true  test  of  the  validity  of  the  contract.  Im- 
possibility is  not  removed  by  a  part  remaining  possible,  nor  can  fulfilment 
of  part  of  a  contract  be  said  to  be  fulfilment  of  the  contract  itself  (see 
lirown,  Sale  of  Goods  Act,  32,  33).  But  to  render  the  contract  null,  the 
impossibility  of  performance  nmst  be  absolute  and  not  merely  relative  to 


10  SALE 

particular  persons.  One  may  competently  bind  himself  to  do  an  act  not  in 
itself  impossible,  yet  not  practicable  to  the  person  who  has  bound  himself 
to  do  it.  Thus  he  may  contract  to  sell  a  property  belonging  to  another  in 
the  expectation  of  being  able  to  acquire  it.  If  he  is  disappointed  he  is 
nevertheless  liable  to  the  other  in  damages  for  breach  of  contract  (Stair, 
i.  10.  13;  Pothier,  OUig.  133,  136;   Vente,  7). 

Assuming  a  subject  to  exist,  our  first  concern  in  this  connection  is 
whether  it  is  heritable  or  moveable.  The  word  "  heritage  "  is  conventionally 
applied  to  things  immoveable  in  their  nature,  and  rights  directly  relating 
thereto,  as  distinguished  from  things  and  rights  which  are  moveable.  But, 
in  its  literal  sense,  it  implies  a  distinction  applicable  only  to  succession, 
viz.  between  things  which,  as  a  rule,  go  undivided  to  a  single  heir  and 
things  which  are  divided  between  a  -deceased's  next  of  kin.  The  two 
distinctions  have  no  necessary  connection  and  have  been  very  incon- 
veniently mixed  together.  The  distinct  characteristics  of  immoveable  and 
moveable  property  would  continue  although  the  existing  distinctions  in 
the  law  of  succession  were  aljolished.  See  Heritable  and  Moveable. 
Heritage  embraces  "  whatever  is  either  part  of  the  ground  or  united  to  it 
fundo  annexum"  (Ersk.  ii.  2.  4).  It  therefore  includes  lands,  buildings, 
minerals,  growing  trees,  and  natural  growing  crops,  also_  rights  of 
superiority,  teinds,  casualties,  feu-duties,  ground-annuals,  servitudes,  real 
burdens,  and  leases.  The  phrase  "industrial  growing  crops"  is  used  in 
opposition  to  natural  growing  crops,  and  is  employed  in  the  Sale  of  Goods 
Act  to  indicate  moveable  property  subject  to  that  Act  (s.  62  (1)).  Eights 
having  a  tract  of  future  time,  such  as  annuities  and  public  offices,  are  qiiasi 
fcuda,  and  therefore,  for  certain  historical  and  other  reasons,  heritable. 
Many  tilings  in  themselves  moveable  {e.g.  wire-fencing,  Graham,  1875,  2  E. 
438)  become  heritable  by  being  attached  to  land  for  its  beneficial  use, 
or  by  being  so  closely  associated  with  land  as  to  form  a  pertinent  or 
accessory.  There  are  also  certain  rights,  such  as  servitudes,  which  cannot 
be  held  separately  from  the  heritage  with  which  tliey  are  connected. 

Difficulties  may  arise  as  to  whether  things  not  in  themselves  heritable, 
pass  to  a  purchaser  as  adjuncts  of  heritage.  In  the  absence  of  contract, 
express  or  implied,  conversion  or  its  opposite  is  determined  by  much  the 
same  rides  as  in  similar  questions  between  heir  and  executor  {Nisbct,  1880, 
7  E.  575;  Cochrane,  1891,  18  E.  1208).  See  Flxtures;  Heritable  and 
Moveable. 

Questions  relating  to  the  quantity,  quality,  or  description  of  the  subject 
sold  imply  a  valid  contract  already  in  existence,  and  therefore  fall  to  be 
considered  in  connection  with  warranty  of  title  and  warrandice  {r.i.).  The 
only  remahiing  inquiry  connected  with  the  subject-matter  of  sale  as 
affecting  the  constitution  of  the  contract  is  whether  the  subject  can  be 
lawfully  sold.  Certain  things  are  from  their  nature  excluded  from  sale. 
Thus  res  ■puhlica:,  such  as  seas,  navigable  rivers,  harbours,  and  highways,  are 
vested  in  the  State  or  in  public  bodies  for  the  use  of  the  community  (Ersk. 
ii.  1.  5  seq.).  The  sale  of  certain  other  things  is  prohibited  for  reasons  of 
public  i)olicy.  Thus  sales  of  offices  of  public  trust  are  rendered  void  by 
statute  (5  &  G  Edw.  vi.  c.  16,  amended  and  extended  to  Scotland  by 
49  Geo.  III.  c.  126).  As  in  the  case  just  mentioned,  rules  of  law  dictated 
by  public  policy  usually  strike  at  the  constitution  of  an  immoral  or 
improper  contract  and  render  it  null.  An  exception,  however,  exists  in 
the  case  of  the  Statute  1594,  c.  220,  by  which  judges  and  members  of  any 
Court  of  justice  are  prohibited  from  purchasing  claims  of  heritable  rights 
concerning  wliich  an  action  is  depending.     The  penalty  is  loss  of  office 


SALE  11 

and  any  privileges  connected  therewith,  but  the  sale  itself  is  good  {Furves, 
1683,  Mor.  9500). 

3.  Price. — The  rule  of  the  Eoman  law  that  there  could  be  no  sale 
without  a  definite  price  fixed  by  the  contract,  or  in  some  mode  provided  by 
the  contract,  has,  with  some  modifications,  been  adopted  in  Scotland. 
Hence  all  our  institutional  writers  describe  a  price  certain  as  an  essential 
of  sale  (Stair,  i.  14.  1  ;  Mackenzie,  Inst.  iii.  3.  1 :  Bankt.  i.  19.  3  ;  Ersk. 
iii.  3.  4;  Bell,  Com.  i.  461 ;  Bell,  Prin.  s.  92  ;  Bell,\SVf/c,  18).  The  English 
rule,  slightly  different  from  the  above,  is  now,  by  the  Sale  of  Goods  Act, 
extended  to  Scotland  (see  infra,  p.  28),  but  sales  of  heritage  continue  to  be 
regulated  by  the  common  law.  It  is  true  that  "  No  price,  no  sale  "  (Bell, 
Prin.  s.  92),  but  it  is  not  true  that  "  No  price,  no  obligation  or  contract." 
Where  price  is  absent,  the  contract  is  not  sale.  If  there  is  no  considera- 
tion, or  if  the  consideration  is  merely  nominal  or  illusory,  the  transaction 
is  donation,  and  may  imply  a  different  degree  of  warrandice  (Ersk.  iii.  3.  4), 
or  be  open  to  revocation  as  between  husband  and  wife  (see  DoNATIO^'S 
INTER  viRUM  ET  uxorem),  but  it  is  not,  for  that  reason  alone,  invalid. 
If  there  is  a  consideration  not  in  money,  the  contract  may  be  excambion, 
i.e.  the  exchange  of  lands  for  lands ;  or  it  may  be  barter,  as  where  heritage 
is  exchanged  for  goods.  Occasionally  the  consideration  is  of  a  mixed 
character,  e.g.  money  combined  with  heritage  or  goods,  or  perhaps  both,  to 
which  there  may  even  be  added  an  ad  factum  prcestandum  obligation.  In 
one  case  the  proprietor  of  a  house  sold  it  for  a  sum  in  money  together 
with  an  obligation  to  discharge  a  debt  and  a  further  obligation  to  procure 
for  the  seller  a  commission  in  the  army  (Cargill,  1  Sh.  App.  134).  The 
ensigncy  could  at  the  time  be  purchased  for  a  definite  sum  of  money,  and 
consignation  was  in  the  end  held  equivalent  to  implement,  but  it  suggests 
a  possible  difficulty  as  to  the  nature  of  the  contract  where  heritage  liears 
to  be  sold  for  a  consideration  resolving  itself  into  a  pure  ad  factum 
IJrccstandum  obligation. 

Excambion  of  lands  differs  from  sale  in  three  respects :  (1)  As  regards 
form. — A  verbal  agreement  to  excamb  may  be  more  easily  validated  by 
possession  than  a  similar  agreement  in  the  case  of  sale.  "  The  pleas  of 
acquiescence  and  homologation  are  entitled  to  very  different  effect  when 
pleaded  in  reference  to  a  prior  contract  of  excambion  from  that  which 
would  be  due  to  tliem  when  pleaded  to  the  effect  of  transferring  property 
for  a  price"  (per  Ld.  GiUies  in  Melville,  1830,  8  S.  841,  at  843  ;  see  also 
Kennedy,  1836,  15  S.  102).  (2)  As  regards  title. — Where  a  deed  bears  to 
be  an  excambion,  and  possession  follows,  there  is  implied  real  warrandice, 
available  not  only  against  the  party  and  his  heirs,  luit  against  singular 
successors,  so  that  if  one  of  the  contracting  ])arties  or  liis  heir  or  singidar 
successor  should  sulfer  eviction,  he  may  have  recourse  upon  his  own 
original  lands  to  the  effect  of  taking  them  back  from  the  other  party  or  his 
heir  «tr  singular  successor.  In  sale,  on  tlio  other  hand,  the  warrandice 
tliough  absolute  is  only  ])ersonal,  not  real,  unless  in  the  very  exce])ti(tnal 
case  of  a  seller  disponing  other  lands  in  security  of  the  })rincipal  lands 
(Ersk.  ii.  3.  28).  (3)  As  regards  risJc. — It  seems  to  follow  from  tlie  existence 
of  real  warrandice  that  in  excambion  there  is  no  transfer  of  risk  by  the 
mere  contract,  as  in  the  case  of  sale  ;  so  tliat  if  one  excambs  a  mansion- 
house  for  other  heritage,  and  the  house  is  destroyed  by  fire  before  sasine  or 
its  equivalent  is  recoided,  the  risk  remains  with  the  original  owner.  In 
such  case  it  would  seem  that  the  otlicr  party  is  under  no  obligation,  and 
that  if  lie  has  imj)lementcd  his  part  of  the  contract  he  is  entitled  to  be 
reinstated.     Tlic  faft  tliat  lands  have  Ijecn  cxcambed  does  not  free  them 


12  SALE 

from  real  burdens ;  and  wliere  the  party  has  bound  himself  to  take  the  title 
as  it  stands,  he  cannot  claim  damages  for  non-disclosure  of  such  bvirdens 
( JFood,  1886,  13  E.  1006).  Where  heritage  is  disponed  in  payment  of  the 
price  of  goods,  the  price  must  form  a  lawful  consideration  for  the  heritage, 
otherwise  there  is  no  contract  {Itussell,  1844,  6  D.  1138).  If  the  parties 
are  not  agreed  about  the  price,  there  is  no  contract ;  and  if  under  these 
circumstances  the  property  has  been  conveyed,  a  reconveyance  may  be 
ordered  {Stirliwj,  1824,  2  S.  765). 

4.  Transfer  of  Ownership. — "  Every  proprietor  of  a  heritable  subject  who 
has  the  free  administration  of  his  estate,  and  is  not  debarred  by  statute  or 
by  the  nature  of  his  grant,  may  dispose  of  it  in  fee  to  another ;  for  the 
right  or  j)roperty  where  it  is  absolute,  necessarily  includes  a  power  in  the 
owner  not  only  to  use  the  subject  by  himself,  but  to  make  it  over  to  whom 
he  will "  (Ersk.  ii.  3.  13).  The  completed  contract  is  an  exercise  of  this 
power,  and  involves  such  a  transfer  of  ownership  as  to  distinguish  sale  from 
feu  and  lease  {v.s.  p.  4).  The  same  feature  serves  to  distinguish  sale  from 
security.  In  security  it  is  not  intended  that  there  should  be  an  absolute 
transfer  of  property,  yet  the  transaction  is  often  carried  through  by  means 
of  an  cjc/acic  absolute  disposition  together  with  a  collateral  agreement  or 
back-letter,  or  possibly,  even  a  verbal  understanding.  If  the  qualifying 
writing  is  recorded  along  with  the  absolute  disposition,  it  reduces  the  latter 
to  a  proper  security,  which  may  be  pleaded  against  onerous  disponees  of  the 
creditor.  If,  on  the  other  hand,  the  qualification  rests  on  an  unrecorded 
document  or  a  verbal  arrangement,  it  is  merely  personal,  and  at  most  can 
only  affect  the  immediate  parties  and  their  respective  heirs.  In  this  respect 
an  ex  facie  absolute  disposition  resemljles  the  old  wadset,  which  though 
at  first  a  proper  pledge  of  the  lands,  afterwards  became  an  out-and-out 
alienation,  with  a  right  of  reversion  in  a  separate  writing  (Ersk.  ii.  8.  4). 
Like  the  back-letter  of  modern  times,  the  bond  of  reversion  was  in  itself 
personal,  Ijut  was  capable  of  being  made  real  by  registration. 

An  ex  facie  absolute  disposition  passes  the  property,  and  is  therefore 
more  than  a  mere  pledge  (see  Absolute  Disposition).  It  need  not  express 
any  consideration,  and  if  consideration  is  stated,  it  may  take  any  form 
e.xcept  security.  "The  right  conveyed  by  an  absolute  disposition  is  an 
absolute  right  of  property.  ...  It  may  in  the  end  be  no  better  than  a 
security,  but  it  is  a  perversion  of  terms  to  call  it  so  "  (per  Ld.  Pres.  M'Neill 
in  Lcckie,  1854,  17  D.  77,  at  80;  see  also  Baillic,  1884,  12  R  199,  per 
Ld.  J.-Cl.  Moncreiff).  The  disposition  as  a  transfer  of  property  is  not 
affected  by  a  general  statement  of  the  cause  of  granting,  such  as  "  good 
and  onerous  causes  and  considerations,"  or  by  a  statement  of  a  price 
paid,  or  of  a  donation  made,  but  its  absolute  character  is  lost  if  the  deed 
bears  in  gremio  any  qualification  pointing  to  a  security,  and  showing  that 
mere  possession  and  not  property  is  intended  to  be  transferred  (Cainj^hcll, 
1865,  4  M.  25 ;  but  see  Bell,  Com.  i.  725).  A  similar  effect  follows  if  the 
back-letter  is  made  real  by  recording,  for  then  the  transaction  becomes 
a  proper  security,  and  the  creditor  is  prevented  from  selling,  or  at 
least  limited  by  the  actual  terms  of  the  contract  (Bell,  Com.  ii.  272  ;  but 
see  Dwncan,  1893,  21  R  37).  Hence  many  absolute  disponees,  though 
truly  creditors,  refuse  to  grant  a  back-letter,  and  the  debtor  is  obliged  to 
trust  to  the  creditor's  good  faith  or  to  private  evidence,  such  as  entries  in 
the  creditor's  books.  Further,  although,  as  between  the  parties  themselves, 
tlie  alisolute  disposition  may  by  competent  evidence  be  reduced  to  a 
security,  the  former  owner  is  by  the  Trust  Act,  1696,  c.  25,  limited  in  his 
proof  to  the  writ  or  oath  of  the  absolute  disponee  {Douglass,  1770,  2  I'at. 


SALE  13 

187).  In  tlicso  circumstances  it  is  often  diflicult  for  a  delator  or  his  o-eneral 
creditors  to  vindicate  the  property  conveyed.  The  difificulty  is  increased 
where  the  absolute  disposition  bears  to  be  for  a  price  paid,  for  then  the 
contract  is  ex  facie  one  of  sale.  Even  where  a  power  of  redemption  is 
expressed,  it  can  scarcely  be  distinguished  from  the  ixidum  de  retrovendendo, 
which  is  a  sale  under  a  resolutive  condition  that  the  purchaser  shall  be 
bound  to  reconvey  to  the  original  proprietor  within  a  limited  time  upon 
repayment  of  the  price  or  implement  of  any  other  specified  stipulations. 
Again,  reverting  to  the  analogy  of  the  wadset,  we  find  that  when  it  took 
the  form  of  the  pactum  de  retrovendendo  the  test  as  between  sale  and 
security  depended  largely  on  whether  the  sum  paid  was  adequate  value  for 
the  subjects  conveyed.  If  it  was  much  less  than  the  value,  the  presumption 
was  security,  and  the  reverser  was  allowed  to  redeem  even  after  the  lapse 
of  the  prescribed  term,  provided  the  sum  was  offered  before  declarator  of  the 
irritancy.  If,  on  the  other  hand,  the  amount  paid  formed  a  just  price,  the 
irritancy  was  strictly  construed,  and  the  right  of  redemption  was  not 
available  after  a  stated  period  (Stair,  i.  13.  14;  ii.  10.  6;  Ersk.  ii.  8.  14; 
iii.  3.  12).  The  same  principles  have  been  applied  to  the  ex  facie  absolute 
disposition  where  it  bears  to  proceed  upon  a  sale  of  the  subjects.  "  There  is 
everything  here  to  indicate  that  there  was  a  bond  fide  transaction 
of  sale,  with  a  right  reserved  to  the  seller  to  recover  within  a  certain 
time.  But  if  it  be  a  sale,  the  law  is  well  fixed.  The  right  of  reversion 
requires  no  declarator  to  bar  it ;  the  mere  expiry  of  the  time  fixed  is 
sufficient"  (per  Moncreiff,  Ld.  J.-CL,  in  Martin,  1875,  13  S.  L.  E.  86,  at  88). 
"  The  different  principle  applicable  to  clauses  of  redemjJtion  in  the  case 
of  loans  from  that  applied  to  cases  of  sale,  arises  from  the  fact  that  in 
a  loan  the  subject  is  often  more  valuable  than  the  sum  advanced,  which 
has  introduced  the  equitable  rule  that  in  the  case  of  a  loan  the  borrower 
is  not  barred  by  the  mere  expiry  of  the  time  from  exercising  his  right 
of  reversion "  (per  Ld.  Gifford,  in  Martin,  v.s.).  It  is  true  that  "  mere 
inadequacy  of  price  is  far  from  conclusive  against  a  transaction  being  a 
sale,  but  it  does  forcibly  suggest  that  the  transaction  is  something  else 
and  something  short  of  sale"  (per  Ld.  Trayner,  m  Bohertson,  1896,  24  E. 
120,  at  132;  see  bIbo  Simson,  1770,  2  Pat. '227;  Boyd,  1775,  2  Pat.  368; 
Iraser,  13  December  1810,  R  C. ;  Hadden,  1814,  Hume,  159  ;  Younej,  1826, 
4  S.  617  ;  Wayne,  1829,  7  S.  795;  M'Kirdy,  1839,  1  D.  855;  Stiveji,  1878, 
15  S.  L.  E.  422 ;  Smith,  1879,  6  E.  794). 

In  transactions  regarding  heritage  a  recorded  conveyance  is  equivalent 
to  delivery,  and  there  is  thus  no  room  for  the  perplexing  questions  often 
submitted  for  judgment  regarding  the  validity  of  securities  over  moveables 
where  delivery  lias  not  been  given  in  tlic  ordinary  way.  Before  the  Sale 
of  Goods  Act,  delivery  in  the  case  of  goods  was  equally  necessary  to  a 
transfer  of  property  whether  the  contract  was  sale  or  security.  Where, 
however,  goods  were  closely  connected  with  heritage,  the  cases  seem  to 
show  that  the  heritable  title  duly  completed  had  some  effect  in  determining 
whether  the  ownership  of  the  moveable  property  was  effectually  conveyed. 
This  may  be  said  where  a  combined  transfer  of  heritage  and  moveables 
was  followed  Ijy  a  lease  to  the  possessor  and  reputed  owner,  e.g.  moveable 
macliint.'ry  in  a  mill  {Union  Beink,  1865,  3  M.  765;  Bohertsons,  1882,  9  E. 
772),  or  furniture  in  a  hotel  {Dancanson,  1881,  8  E.  563).  So  also,  where 
the  movealjle  plant  of  a  newspaper  was  transferred  to  the  proprietor  of  the 
building,  and  by  liim  leased  to  the  former  owner  {Orrs  Trustee,  1870, 
8  M.  936 ;  see  also  Bell,  Com.  i.  786).  Not  that  any  such  princi])le  was 
ever  formally  recognised.     On  the  contrary,  when    the  question  arose  in 


14  SALE 

iis  pure  fonn,  dolivcvy  of  the  moveable  subject  was  emphatically 
uo«r;aiYea  {Sdi-'cn,  187S,  15  S.  L.  R  422).  It  made  no  difference  that  the 
convevance  (embracing  subjects  both  heritable  and  moveable)  was  recorded 
in  the  Kegislcr  of  Sasines,  or  that  a  formal  ceremony  of  taking  possession 
of  the  moveables  was  gone  thro\igh  and  embodied  in  a  notarial  instrument 
or  instrument  of  possession.  The  important  facts  were  that  the  moveables 
(maoluuery  in  a  mill)  never  really  changed  hands,  and  that  no  considera- 
tion was  given  either  in  the  shape  of  rent  or  price  {Stivcn,  v.s.). 

;"•.  Coiucnt  and  its  Expression. — Sale  is  a  contract,  and  the  basis  of  all 
contract  is  the  consent  of  parties  (Stair,  i.  10.  2 ;  Ersk.  iii.  1.  16  ;  Bell,  Com. 
i.  1)13).  There  are,  however,  circumstances  in  which  the  law  will  not 
recognise  consent  or  apparent  consent.  This  may  arise  from  the  status  or 
condition  of  tlie  parties,  or  one  or  more  of  them  (see  Pupil;  Minok  ; 
M.MMUKn  Woman;  Insanity;  Intoxication);  or  from  influences  brought 
to  bear  upon  one  or  more  of  the  parties  (see  Feaud  ;  Circumvention  ; 
Extoution);  or  from  essential  error  induced  by  representations  of  the 
party  seeking  to  enforce  the  contract  (see  Ekror)  ;  or  from  something  in 
the  nature  of  the  contract  itself  which  renders  it  illegal  (see  Illegal  and 
Im.\[oral  Contracts).  In  regard  to  proof  of  consent,  sale  is  usually 
classed  as  a  "  consensual "  contract,  i.e.  a  contract  capable  of  being  proved 
either  by  writing  or  hy  witnesses  (Bell,  Com.  i.  335).  This,  however, 
applies  only  to  goods.  A  sale  of  heritage  requires  writing  both  for  the 
constitution  of  the  contract  and  for  its  proof  (Ersk.  iii.  2.  2 ;  Allan,  1875, 
2  R  587),  while  a  sale  of  incorporeal  moveables  stands  in  a  doubtful 
position  in  this  respect,  of  which  more  hereafter.  The  distinction  between 
the  constitution  and  the  proof  of  contract  must  be  clearly  kept  in  view. 
What  is  technically  known  as  proof  by  writ  or  oath  does  not  constitute  a 
contract.  It  only  serves  in  certain  circumstances  to  2^'>'0ve  a  contract 
capable  of  being  constituted  and  actually  constituted  in  some  other 
manner,  but  in  regard  to  which  the  law  has  restricted  the  mode  of  proof. 
Contracts  regarding  heritage  must  be  constituted  by  probative  writings 
(see  Probative  Writings),  while  writings  produced  in  proof  of  a  truly 
consensual  contract,  such  as  loan  or  guarantee,  do  not  require  the  usual 
solemnities,  but  are  effectual  if  sliown  to  be  genuine  (Bryan,  1892,  19  E. 
490  ;  Paterson,  1897,  25  R.  144). 

Wiiile  sale  is  a  contract  involving  at  least  two  parties,  each  under 
oljhgation  to  the  other,  "  it  is  possible  that  a  bargain  concerning  heritage 
may_  be  completed  by  a  unilateral  obligation "  in  writing,  wliich  would 
be  Ijinding  on  the  promissor  and  yet  not  binding  on  the  person  to  whom 
the  writmg  is  delivered  (Stair,  i.  10.  3,  4 ;  Ersk.  iii.  3.  88  ;  Ferguson,  1748, 
Mor.  8440).  There  is,  however,  a  strong  presumption  against  this  form  of 
obligation,  the  effect  of  whicli  would  be  to  prevent  the  grantor  from 
resihng,  and  yet  leave  the  receiver  free  to  accept  or  reject  at  his  pleasure 
iijdton,  1/61,  Mor.  8446;  Barron,  1794,  Mor.  8463;  Malcolm,  1891,  19  R 
2  /  8 ;  see  Promise). 

Wliere  the  contract  takes  the  form  of  offer  and  acceptance,  both 
documents  mu.st  be  probative  {Bark,  1764,  Mor.  8449).  An  offer  admittedly 
written  und  signed  by  a  party  in  his  brother's  name,  and  with  his 
\Zia^  ?;'^L'2!:\^y',  ^'  ^°^  holograph  of  the  brother  {Scottish  Lands  Co., 
■  \  ,i,n  }  .nl?  ^^^  holograph  letter  of  an  agent  may  bind  his 
principal  (11  lujte,  1879  6  R.  099).  An  offer  in  the  handwriting  of  one 
partner  and  signed  with  the  company  signature  by  another,  is  holograph 
ot  the  firm  (^/'Zaren,  1871,  44  Sc.  Jur.  17;  see  Holograph  WritTngs). 
An  undertaking  by  letter  to  accept  an  offer  if  made,  is  equivalent  to  an 


SALE  15 

offer,  aud  will  be  sufficiently  met  by  a  letter  accepting  {Bate,  18G9, 
6  S.  L.  li.  401);  but  a  letter  enclosing  particulars  of  an  estate,  followino- 
upon  a  verbal  expression  of  a  desire  to  sell,  is  not  an  offer,  and  another 
letter  bearing  to  be  an  acceptance  will  not  make  a  contract  {Milne,  1837, 
2  S.  &  M'L.  494).  The  posting  of  an  acceptance  concludes  the  contract, 
and  a  retractation  of  the  offer  posted  on  the  same  day  will  not  free 
the  offerer  {Thomson,  1855,  18  D.  1).  The  offer  and  acceptance  must 
meet  each  other  in  exact  or  at  least  substantial  agreement.  Thus  where 
the  acceptance  is  qualified  {Nelson,  1889,  16  E.  898),  or  where  conditions 
are  inserted  {Johnston,  1855,  18  D.  70),  there  is  no  contract  till  the  offerer 
expresses  his  acquiescence.  In  like  manner,  where  the  terms  of  intended 
servitudes  are  left  unsettled  {Heiton,  1877,  4  K.  830),  or  where  certain 
matters  are  left  to  be  arranged  by  the  respective  agents  {Bakers  of 
Edinburgh,  1868,  6  S.  L.  E.  144),  either  party  may  resile  (see  Offek  and 
Acceptance  ;  Locus  pcenitentl^).  To  these  rules  exceptions  have  been 
admitted.  Thus  a  condition  made  by  the  buyer  that  the  seller  give  a 
good  title  and  grant  warrandice,  will  not  entitle  the  seller  to  take 
advantage  of  a  better  offer  {Bruce,  1785,  3  Pat.  5).  So  also  in  the  sale  of 
an  entailed  estate,  a  condition  by  the  seller  that  the  sale  be  ratified  by  the 
Court,  will  not  free  him  from  taking  the  statutory  steps  necessary  for  this 
purpose  {Stewart,  1890,  17  li.  (H.  L.)  1).  Conditions  inserted  by  one  party 
may  be  virtually  accepted  by  actings  of  the  other  party,  such  as  entering 
into  possession  {ColquJionn,  1860,  22  D.  1035). 

A  verbal  agreement  relating  to  heritage  may  be  validated  by  rei  inter- 
ventus,  but  only  to  the  effect  of  permitting  proof  by  the  writ  or  oath  of  the 
party  seeking  to  be  free  {Gowan's  Trs.,  1862,  24 1).  1382,  per  Ld.  Deas,  at  1388  ; 
see  also  Laivrie,  1697,  Mor.  8425).  Where  writing  exists  but  is  improbative, 
it  may  be  rendered  binding  by  rei  interventus  without  reference  to  oath  or 
any  other  writ.  Thus  where  the  seller  delivered  the  keys  of  a  house  and 
took  down  a  sale-ticket,  and  the  buyer  made  alterations  on  the  grounds, 
the  buyer  was  held  bound  ( ]Vestren,  1879,  7  E.  173).  So  also  where  the 
seller  gave  an  existing  tenant  notice  to  quit,  and  the  buyer  let  the  premises 
to  another  tenant  {Stewart,  1877,  4  E.  427).  But  mere  possession,  which 
may  be  referred  to  another  contract,  will  not  suffice  {Bait,  1833,  12  S.  l.'ll ; 
Bohertson,  1874,  12  S.  L.  E.  11);  nor  will  an  allegation  by  the  buyer  that 
he  had  incurred  expense  and  trouble  in  investigating  the  value  of  the 
suljject  and  forming  a  syndicate  {Moivat,  1895,  23  E.  270).  Improbative 
missives  cannot  be  validated  by  a  law  agent  professing  to  act  for  both 
])arties  {Mitehell,  1874,  2  E.  162),  nor  can  an  improbative  acceptance  by  a 
charitable  corporation  be  amended  after  the  granting  of  interim  interdict 
against  the  managers  carrying  through  the  sale  {Law,  1871,  44  Sc.  Jur. 
17).  Where  a  contract  relating  to  heritage  has  been  formally  completed, 
all  previous  communings  and  contracts,  however  formal,  are  superseded 
{Hughes,  1819, 1  lUigh,  287).  Thus  a  conveyance  becomes  the  sole  measure  of 
the  contracting  parties'  riglits  {Orr,  1893,  20  E.  H.  L.  27,  per  Ld.  Watson,  at 
29  ;  Lee,  1883, 10  E.  H.  L.  91).  The  document  forming  the  contract  cannot 
be  modified  or  interpreted  by  previous  writings  or  advertisements  {Stevenson, 
1845,  7  I).  418),  or  controlled  by  an  alleged  verbal  understanding  {Virtue, 
1843,  5  D.  1251),  unless  it  is  admitted  that  the  document  does  not  give  a 
true  account  of  the  transaction  {G'rant's  Trs.,  1875,  2  E.  377),  or  unless  it 
is  in  itself  ambiguous  {Davidson,  1843,  7  I).  3,42 ;  Macdonald,  1898, 
36  S.  L.  E.  77). 

6.  Special  Kinds  of  Sah\ — Under  tliis  liead  are  included  judicial  sales, 
sales  regulated  by  statute,  and  sales  by  auction.     Judicial  and  statutory 


IG  SALE 

sales  are  almost  invaria1.lv  sales  by  auction  (see  Bell,  Com.  ii.  251,  345; 
Titles  Consol.  Act,  1808,'  s.  119);  and  in  the  few  cases  where  sale  by 
private  bari^ain  is  permitted,  it  is  subject  to  special  statutory  restriction 
{e.g.  Bankruptcy  Act,  1850,  s.  115).  The  term  judicial  sale  is  applied  in 
a  general  sense  to  any  sale  under  judicial  authority,  e.g.  under  an  action 
for  tiie  sale  of  heritable  subjects  held  by  several  proprietors  pro  indiviso 
in  order  that  the  proceeds  may  be  divided  among  them  (see  Common 
ruorKUTY),  or  under  judicial  process  for  the  realisation  of  a  debtor's 
heritable  estate  (see  Banking  and  Sale;  Ajudication  for  Debt).  Judicial 
sale  is  recognised  under  the  Bankruptcy  Act,  1856  (ss.  96,  114),  though 
it  is  practically  superseded  by  voluntary  public  sale  under  that  Act  (see 
Sequestration).  Among  sales  authorised,  or  wholly  or  partially  regulated, 
by  statute,  are  those  under  Entail  Acts  (see  Entail),  under  Railway  Acts 
(see  Kailway),  and  under  Heritable  Securities  and  Conveyancing  Acts  (see 
Bond  and  Disposition  in  Security).  The  general  principles  applicable 
to  sales  by  auction  are  summarised  under  Auction;  Auctioneer;  and 
Articles  of  Eoup  {q.v.).  The  conditions  usually  inserted  in  articles  of 
roup  oblige  the  buyer  to  take  the  title  as  it  is  offered,  and  to  raise  no 
objection  on  the  ground  of  misdescription,  insufficiency  of  title,  or  otherwise. 
Where  the  title,  though  incomplete,  is  not  invalid  {Carruthers,  1825,  4  S. 
34),  or  where  the  result  is  merely  to  cause  expense  to  the  buyer 
(Anderson,  4  December  1818,  F.  C),  or  to  impose  upon  the  buyer  burdens 
and  restrictions  of  which  he  was  ignorant  (Davidson,  1881,  8  R.  990; 
IFood,  1880,  13  li.  1000),  or  to  induce  the  buyer  inadvertently  to  purchase 
a  small  portion  of  his  own  property  (Morton,  1877,  5  E.  83),  full  effect  is 
given  to  the  obligation.  In  like  manner,  a  condition  that  the  buyer  is  to 
take  the  risk  of  error  in  the  particulars  furnished  to  him  will  receive  effect 
(Brovmlie,  1880,  7  R.  H.  L.  00),  and  a  declaration  that  the  seller  is  not  to 
purge  incumbrances  will  throw  the  risk  of  such  incumbrances  upon  the 
buyer  (Young,  1849,  11  D.  1482).  So  also  a  condition  that  the  buyer 
shall  perform  the  obligations  contained  in  the  titles  will  throw  on  him  the 
burden  of  inquiry  as  to  their  existence  and  extent  (Murray,  20  January 
1815,  F,  C).  But  while  "  the  regulations  in  the  articles  of  roup  will 
receive  fair  effect,  a  clear  case  of  injustice  and  inequity  will  not  be  covered 
by  them"  (Morton,  1877,  5  R.  83,  per  Moncreiff,  Ld.  J.-Cl.).  Thus  an 
objection  to  the  validity  of  the  title  was  held  not  excluded  (Waddell, 
1828,  0  S.  999);  and  where  buildings  purporting  to  be  sold,  were  found  to 
be  jjlaced  to  a  considerable  extent  on  ground  not  belonging  to  the  seller, 
the  buyer  was  restored  (Hamilton,  1861,  23  D.  1033).  So  also  an  agreement 
to  take  the  title  as  it  stands  and  subject  to  all  exceptions  will  not  compel 
the  Iniyer  to  take  an  unmarketable  title  which  cannot  be  made  marketable 
by  any  expenditure  (Carter,  1890,  18  R.  353). 

II.  Incidents  of  the  Contract. 

Under  this  head  are  included  conditions  (implied  or  express),  warranty 
of  title,  and  warrandice.  Erskine's  dictum  as  to  a  feu  may  be  applied  to 
any  kind  of  alienation  of  heritage :  "  Some  things  are  essential,  some 
natural,  and  others  only  accidental"  (Ersk.  ii.  3.  11).  Thus  writing  is 
essential  to  the  contract,  and  infeftment  is  necessary  to  the  completion  of 
the  disponee's  right.  Conditions  arising  from  the  nature  of  the  contract, 
and  deemed  ]jart  of  it  though  not  expressed,  are  natural;  while  express 
conditions  are  accidental.  A  natural  condition  differs  from  an  essential  of 
the  contract  in  respect  that  it  may  be  altered  Ijy  the  will  of  the  parties  •  in 


SALE  17 

other   words,  an   express   condition   may  take    the   place  of   an   implied 
condition. 

1.  Implied  Conditions. — Acceptance  of  a  disposition  may  imply  an 
obligation  on  the  disponee  to  fulfil  its  terms  {Magistrates  of  Inverness,  1827, 
6  S.  160) ;  but  where  a  seller  by  public  auction  undertook  that  an  assigna- 
tion would  be  granted  by  a  third  party,  an  offer  by  that  party  at  the  sale 
was  held  not  to  imply  an  obligation  to  grant  it  {Crawford,  1827,  5  S.  259). 
A  sale  of  heritable  subjects  always  implies  a  right  of  access  {louttit's  Trs., 
1892,  19  R.  791,^6?'  cur.).  In  a  sale  of  growing  wood  there  is  an  implied 
condition  that  the  seller  will  not  part  with  the  estate  without  making  pro- 
vision to  enable  the  buyer  to  cut  and  remove  it  {Welsh,  1818,  1  Mur.  397)  ; 
but  the  wood  must  be  cut  within  a  reasonable  time  {Duff,  1817,  0  Pat.  332). 
The  conditions,  whether  implied  or  express,  of  warranty  of  title  and 
warrandice,  will  be  considered  under  "  Performance  "  {v.i.). 

2.  Express  Conditions. — These  are  as  varied  as  the  language  employed, 
and  where  lawful  are  usually  given  effect  to  according  to  their  terms. 
Opinions  have  been  expressed  that  the  Court  is  entitled  to  look  beyond  the 
technicalities  of  conveyancing  language  if  the  intention  of  parties  would 
thereby  be  fulfilled  {leith  Heritages  Co.,  1876,  3  E.  789).  A  buyer  may  be 
held  by  his  silence  to  have  acquiesced  in  a  condition  made  after  the 
bargain  has  been  completed  {M'Neill,  1830,  8  S.  362).  A  condition  that 
"  the  feu-duty  is  understood  to  be  not  more  than  £4"  was  held  satisfied  by 
the  seller's  allocation  of  that  amount  to  the  part  sold,  though  tliere  was  a 
cumulo  feu-duty  of  £35,  and  tlie  superior's  consent  had  not  been  obtained 
{Eohcrtson,  1886,  13  E.  1133  ;  see  also  Mshct,  1876,  3  R.  781).  It  has  been 
questioned  whether  a  buyer  who  is  subject  to  a  condition  in  a  minute  of 
sale  imposing  a  restriction  unlimited  in  time,  is  entitled  to  object  to  a 
clause  in  the  disposition  tendered  by  the  seller,  making  the  condition  a  real 
burden  binding  on  the  buyer's  singular  successors.  A  restriction  of  this 
nature,  limited  to  ten  years,  was  held  only  personal  to  the  buyer  and  his 
heirs,  and  the  seller's  demand  was  disallowed  {Corbett,  1872,  10  j\I.  329 ; 
see  also  Bissct,  1898,  36  S.  L.  E.  84).  A  condition  of  perpetual  personal 
liability  for  a  ground-annual  was  held  (by  Ld.  Gilford)  not  to  be  a  real 
condition  attaching  to  a  singular  successor  {Leslie,  1870,  43  Sc.  -Fur.  95). 
As  to  the  interpretation  of  conditions  regarding  relief  from  taxes  and 
other  local  burdens,  see  Conditions  in  Feudal  Grants.  An  express 
condition  covering  the  same  ground  as  an  implied  condition  may  be  held 
pro  nan  scripto,  and  though  not  expressly  accepted  will  not  void  the  sale 
(JJrure,  1785,  3  Pat.  5). 

III.     I'OFOKMANCK   OF   THE   CONTRACT. 

Sellers  OUigations. 

1.  I'o  gire  Delivery. — The  ])riiici])al  obHgation  of  the  seller  is  to  give 
delivery  of  the  subject  sold.  This  is  done  by  means  of  a  Disi'OSiTiON  {q.r.) 
on  wliich  infeftmcnt  may  follow,  'i'he  iiifcftmcnt  foims  the  deliveiy,  and 
is  tlie  title  by  which  the  buyer  possesses.  Infeftmcnt  is  properly  speaking 
symbolical  possession,  whicli  in  former  times  was  given  by  means  of  a  cere- 
mony on  the  lands,  a  reford  of  wliich  was  embodied  in  an  instrument  of 
sasine  (see  Sasink).  After  tlie  Act  169:'>,  c.  13,  the  ellicacy  of  infeftmcnt 
came  to  depend  not  so  nnich  on  the  ceremony,  as  on  the  registration  of  the 
sasine  in  thepulilic  records.  A  statute  of  1845  (8  &  9  Vict.  c.  35)  rendered 
symljoliciil  delivery  unnecessary,  and  infeftmcnt  was  thereafter  ol)taincd  by 
producing  the  warrants  of  sasine  to  a  notary  public,  and  by  expeding  and 

S.  K.— VOL.  XI.  2 


18  .  *  SALE 

recording  an  instrument  of  Scasine.  By  a  further  development  in  1858, 
the  instniment  of  sasine  was  rendered  wholly  unnecessary,  the  conveyance 
itself  with  a  warrant  thereon,  recorded  in  the  appropriate  register,  having 
the  full  elTect  of  a  recorded  sasine  (21  &  22  Vict.  c.  76,  s.  1.  See  now 
;U  &  32  Vict.  c.  101,  ss.  15,  142).  The  "  faith  of  the  records  "  is  of  the 
utmost  importance  in  Scottish  conveyancing,  and  is  illustrated  by  the 
following  cases  :  Napier,  1765,  2  Pat.  108  ;  Ccddcr,  1806,  Hume,  440  ; 
CamphcH,  1811,  Hume,  444  ;  Wilson,  1828,  3  W.  S.  60  ;  Farl  of  Mar,  1838, 
1  I).  116;  Frascr,  1847,  9  D.  415;  Ross,  1888,  15  R.  282;  Dowie  &  Co., 
1891,  18  E.  986  ;  Moncricff,  1896,  23  R.  577. 

If  the  seller  is  unable  to  give  entire  possession  at  the  appointed  time, 
the  buyer  is  free  {Hunter,  1822,  1  S.  248).  The  phrase  "  immediate  entry  " 
means  only  such  early  possession  as  is  possible  and  practicable  in  the 
circumstances.  Thus  entry  on  the  fourth  day  after  the  completion  of  the 
contract  did  not  involve  a  breach  {Hcys,  1890, 17  E.  381);  but  where  time 
is  a  material  element,  as  in  the  case  of  land  bought  for  resale,  tlie  seller's 
inability  to  give  entry  at  the  stipulated  period  will  enable  the  buyer  to 
resist  a  claim  for  implement  or  damages  {Kdman,  1878,  5  E.  816).  A 
delay  of  fourteen  months  in  the  completion  of  a  house  sold  during  con- 
struction entitled  the  buyer  to  resile  {Hutchinson,  1830,  8  S.  377). 

If  the  natural  possession  at  the  term  of  entry  is  in  the  hands  of  third 
parties  without  title,  the  buyer  is  entitled  to  remove  these  parties  and 
vindicate  his  own  possession.  If,  however,  the  natural  possessors  occupy 
under  leases  granted  by  the  seller  or  his  authors,  the  effect  of  the  Statute 
1449,  c.  17,  is  to  make  such  possession  equivalent  to  sasine  in  favour  of  the 
lessees  for  the  terms  of  their  leases  (see  Lease).  The  buyer's  possession  of 
the  lands  so  leased  and  occupied  is  civil,  not  natural.  He  is  entitled  to  the 
rents,  but  has  no  power  to  remove  tenants.  It  is  usual  for  the  seller 
expressly  to  except  current  leases  from  the  warrandice  clause  of  the 
disposition ;  but  even  where  this  is  not  done,  it  would  seem  that  such  leases 
are  by  implication  excepted  (Duff,  Feud.  Conv.  89  ;  but  see  Bell,  Zcct.,  3rd 
ed.,  644).  A  seller  was  found  not  liable  in  damages  in  respect  of  a  lease 
said  to  have  been  concealed  from  the  buyer  at  the  time  of  the  sale  {Eeddie, 
1832,  6  W.  S.  188) ;  but  relief  to  the  extent  of  a  proportionate  part  of  the 
price  was  given  to  a  buyer  who  founded  on  a  latent  and  confused  trans- 
action between  the  seller  and  a  tenant  by  which  the  apparent  rental  was 
dhuiuished,  and  which  was  not  discoverable  from  the  leases  exhibited 
{Ferrier,  1823,  1  Sh.  App.  455).  A  lease  of  game,  though  with  possession, 
is  not  effectual  against  a  singular  successor  {Polloch,  1828,  6  S.  913) ;  but  a 
special  privilege  of  diverting  a  stream,  granted  to  a  tenant,  was  found  to 
attacli  to  the  favoured  lands  in  perpetuity,  and  to  be  available  to  a  singular 
successor  {M'Inhjre,  1868,  41  Sc.  Jur.  112).  Tenant-rights  arising  from 
local  custom  have  sometimes  been  given  effect  to  as  against  the  buyer 
without  relief  from  the  seller  {Bell,  14  June  1814,  F.  C. ;  M'TetvisIi,  1790, 
Hume,  546).  An  oljligation  by  the  seller  in  favour  of  tenants  binding 
himself  to  make  repairs  is  personal,  and  if  after  the  sale  the  seller  arranges 
with  the  tenants  to  dispense  with  the  repairs,  the  buyer  cannot  enforce  the 
obligation  (Barr,  1878,  5  E.  877).  As  to  the  division  of  rents  between 
seller  and  buyer,  see  Shcj^pard,  1817,  5  Dow,  278  ;  Deesiele  By.  Co.  1869 
7  M.  1068;  Maxivell's  Trs.,  1873,1  E.  122  ;  Ld.  Glasgoios  Trs.,  1889,  16  E.' 
545). 

2.  _  To  give  a  Good  ^7/^.— Warranty  of  title  differs  from  "  warrandice,"  as 
to  which  see  below.  It  is  a  condition  of  the  contract  itself,  as  distinguished 
from  the  disposition,  the  latter  being  merely  the  means  by  which  the  seller 


SALE  19 

implements   his  primary  obligation  to  give  delivery  of-  the  subject  sold. 
Warranty  of  title  proceeds  on  the  assumption  that  the  seller  must  not  only 
convey  the  property  to  the  buyer,  but  must  establish  itin  liis  person  (Ersk. 
iii.   3.  9  ;  M.  P.  Brown,  Sale,  200  scq.).     The  law  of  IJome  only  implied 
warranty  against  eviction  ;  but  it  was  early  settled  in  Scotland  that,  at  least 
in  the  case  of  heritage,  the  seller  is  bound  to  give  a  good  tiile  to  the  subject 
sold  {Nairn,  1676,  Mor.  14169  ;  Dich,  1826,  2  AV.  S.  522  ;"  but  see  Stair,  i. 
14.  1).     Doubts  had  been  expressed  as  to  whether,  in  Scotland,  the  same 
rule  applied  to  moveable  subjects  (see  M.  P.  Brown,  >S'a/c,  231  seq.);  but 
these  have  been  set  at  rest  by  the  Sale  of  Goods  Act  (s.  12).     A  good  title 
involves  a  title  unencumbered  by  securities  or  other  rights  .in  favour  of 
third   parties,  not  declared   or  known  to  the  buyer  at  the  time  of  the 
contract  {Home,  1824,  3  S.  81).     This  was  held  where  mines  and  minerals 
were   found  to  be  reserved  to   the  superior  {llohertson,  1841,  4  D,  121 ; 
Whyte,  1879,  6  Pt.  699 ;  but  see  Macdonald,  1898,  36  S.  L.  E.  77) ;  also, 
where  there  was  a  latent  servitude  against  breweries,  etc.  {Urqnhart,  1835, 
13  S.  844) ;  so  also,  where  the  feu-duty  was  found  to  be  double  that  shown 
by  accounts  rendered  by  the  seller  at  the  time  of  the  contract  {Clason, 
1844,  6  D.  1201).     But  the  existence  of  a  notorious  and  light  servitude 
will  not   free   the   buyer   {Gordonston,  1682,  Mor.   16606);    nor  will  dis- 
crepancies or  burdens  of  a  slight  and  insubstantial  character  entitle  the 
buyer  to  relief,  especially  if  he  is  not  prepared  to  aliandon  the  purch?«e 
{Aikman,  1773,  Mor.  14179;  affd.  H.  L.  2  Pat.  326;  Gray,  23  January 
1801,  F.  C. ;  Brown,  1813,  Hume,  700  ;  Baird's  Trs.  1830,  8  S.  622  ;  Woods, 
1893,  20  P.  477).     Knowledge  on  the  part  of  the  buyer  of  the  existence 
of  a  burden  may  prevent  him  pcrsonali  exceplione  from  repudiating  {Zany, 
29  June  1813,  F.  C. ;  Magistrates  of  Airdrie,  1850.  12  D.  1222;  Stodart, 
1876,  4  P.   236  ;  Macdonald,  1898,  36  S.  L.  P.  77).     If  the  seller  offers  an 
impoi-fect  title  and   refuses  to  give  any  other,   the  buyer  is  justified   in 
repudiating,  even  though  a  perfect  title  be  afterwards  tendered  {GUfillan, 
1893,  21  P.  269).     The  effect  of  delay  in  furnishing  a  good  title  is  a  ques- 
tion of  circumstances.      If  the  property  is  bought  for  resale,  any  delay 
may  entitle  the  buyer  to  resile  {Kclman,  1878,  5  P.  816).     On  the  other 
liand,a  delay  of  six  months  was  held  not  to  liave  this  efl'ect  {Baclvrn,  1832, 
10   S.  761).     Delay  even   to   the   extent  of  years  may  be  condoned  by 
acquie-scence  or  justified  bv  the  conduct  of  the  buyer  or  his  agent  {Smith, 
1827,  5  S.  340;  Ross,  1829,  7  S.  738;  Brown,  1833,  11  S.  497;  Carter, 
1890,  18  P.  353  ;  Init  see  Flcminy,  1823,  2  S.  :{73,  374). 

A  seller  has  been  hold  bound  to  furnish  a  title  so  free  from  fault  as  to 
secure  the  buyer  against  risk  of  tr()ul)le  and  expense  {Bunlo]),  1850,  12  D. 
518).  If  there  is  a  rational  doubt,  it  is  unnecessary  to  determine  wlictlier 
the  objection  is  fatal  or  not  (Brown,  1833,  12  S.  176).  The  seller  is  liable 
in  the  expense  of  any  judicial  ])roceedings  necessary  to  put  the  title  Itcyond 
'[uestion  and  remove  any  objection  not  frivolous  {SmitJi,  1827,  5  S.  340; 
/hinlnp,  ]Sr,0,  12  D.  518:  I f opr,  ]8i>l,  V.)  I).  1268:  Kerr,  1854,  1  Macq. 
736;  Ifovard  <!•  Wyndhnm,  1890,  17  P.  990;  7ra//.vr,  1895,  2:'.  P.  347 ; 
but  see  Dundee  (Jedemhrinfj  Co.,  1869,  8  M.  2.S9).  The  record  must  be 
cleared  of  an  inJiil)ition  against  the  real  proprietor  thougli  lie  has  lieen  ex 
farie  divested  by  absolute  disposition  (/h-yhnr;/h,  18!)6,  24  P.  1;  [)ut  sec 
Sjtrol's  Trs.,  1830,  9  S.  120).  Even  where  burdens  do  not  a]. pear  on  llie 
rocord,  if  they  can  be  shown  to  exist,  the  buyei'  is  entitled  to  withhold 
payment  of  the  ])rice  till  they  arc  cleared  (Bal.ston,  1830,  8  S.  927).  A 
claim  to  rescind  on  the  ground  of  restrictions  is  strengthened  by  the  fact 
that  tlie  Ituyci'  had  not  the  services  of  a  separate  agent  (/S'w?7//,  1895,  2.".  P.  60). 


20  SALE 

It  is  a  coiuinon  condition  of  the  contract  that  the  buyer  shall  accept  a 
specified  title,  or  take  the  title  as  it  stands,  or,  in  case  of  a  sale  by  auction, 
that  he  shall  satisfy  himself  as  to  certain  particulars  before  offering.  A 
condition  that  the  seller  shall  not  be  bound  to  famish  searches  does  not 
free  him  from  his  obligation  to  clear  the  record.  "  It  only  frees  him  from 
the  expense  of  supplying  the  search.  If  the  purchaser  orders  the  search 
himself,  and  finds  that  the  land  is  burdened,  the  seller  must  discharge  the 
burden  "  (Christie,  1898,  25  E.  824,  per  Ld.  Trayner,  at  827). 

Warranty  of  title  is  sometimes  expressed,  but  more  often  implied,  in  the 
missive  of  sale  embodying  the  contract.  In  Christie,  1898,  25  E.  824,  the 
implied  obligation  was  enforced  against  the  seller,  though  the  buyer  had 
not  only  accepted  a  disposition,  but  had  entered  into  natural  possession  and 
resold  the  subjects.  It  was  contended  that  the  buyer,  having  had  an  oppor- 
tunity of  examining  the  titles  and  the  record,  and  of  stating  objections  prior 
to  settlement,  had  no  remedy  except  that  contained  in  the  warrandice 
clause  of  the  disposition.  Even  this  he  was  not  now  in  a  position  to 
vindicate,  he  having  assigned  all  his  rights,  including  the  warrandice,  to 
another  under  the  second  contract  of  sale.  He  was,  nevertheless,  held  entitled 
to  raise  direct  action  against  tlie  seller,  and  the  latter  was  held  bound  to 
disencumber.  The  remedy  under  implied  warranty  of  title  was  thus 
extended  beyond  precedent.  A  decree,  such  as  was  given  in  this  case, 
ordaining  the  seller  to  disencumber,  is  a  different  thing  from  a  decree  sus- 
taining  a  claim  for  damages  in  respect  of  eviction  founded  on  warrandice. 
In  the  event  of  default  the  former  implies  rescission  of  the  contract  in  lieu 
of,  or  in  addition  to,  damages;  yet  it  may  be  questioned  if  the  right  of  rescis- 
sion can  be  maintained  after  delivery,  for  delivery  is  implement  of  the 
contract,  and  things  are  no  longer  entire  (see  Wood,  1886,  13  E.  1006). 
The  true  principle  seems  contained  in  the  following  remarks  of  Ld, 
M'Laren  :  "  It  will  be  found  that  there  is  no  essential  difference  in  the 
remedies  which  the  law  affords  to  purchasers  for  non-fulfilment  of  contract 
in  the  two  cases  of  sales  of  personal  and  heritable  property.  So  far  as  I 
know,  there  are  only  two  remedies  open  to  a  purchaser  which  are  known  to 
jurisprudence.  He  lias  in  the  first  place  a  right  to  rescind  the  contract, 
conditional  on  his  rejecting  the  goods  or  heritable  property,  and  to  claim 
damages  proportioned  to  the  inconvenience  to  which  he  has  been  put  by 
the  non-fulfilment  of  the  contract.  His  other  remedy  is  the  actio  quanti 
minoris,  the  proper  application  of  wliich  is  to  the  case  of  a  latent  infirmity, 
either  in  the  title  or  the  quality  of  the  subjects  sold,  discovered  when 
matters  are  no  longer  entire"  (Louttit's  Trs.,  1892,  19  E.  791,  at  799).  The 
foregoing  remarks  do  not  apply  to  an  express  condition  that  a  valid  and 
prescriptive  progress  will  be  given.  The  mere  acceptance  of  a  disposition 
without  a  prescriptive  progress  having  l)een  exhibited,  does  not  in  such 
case  necessarily  imply  a  waiver  of  the  condition  {Bald,  1841,  3  D.  564). 

3.  To  grant  Warrandice.— ThQ  term  "  warrandice  "  is  used  to  denote  a 
disponer's  obligation  that  the  subject  conveyed  shall  not  be  evicted  from  the 
disponee  by  anyone  as  liaving  a  better  right  to  it  (Ersk.  ii.  3.  25;  Bell,  Prin. 
s.  121).  "  Tlie  obligation  of  warrandice  differs  from  all  other  obligations  in 
this  respect,  that  it  is  not  intended  that  it  should  be  performed  immediately, 
or  within  a  definite  time,  or  even  within  what  the  law  describes  as  a  reason- 
able time.  It  remains  latent  until  the  conditions  come  into  existence  that 
give  it  force  and  effect"  {Welsh,  1894,  21  E.  769,  per  Ld.  M'Laren). 
Warrandice  may  be  express  or  implied.  Express  warrandice  is  of  three 
knids :  (1)  Simple,  wliere  the  grantor  of  a  conveyance  warrants  that  he 
will  not  by  any  future  voluntary  act  render  the  deed  ineffectual;  (2)  Fact 


SALE  21 

and  Deed,  where  the  grantor  warrants  the  conveyance  from  his  past  as  well 
as  his  future  deeds ;  (3)  Absolute,  where  the  grantor  warrants  the  sultject 
"  not  only  against  his  own  acts,  whether  past  or  future,  but  against  all 
defects  in  his  right  to  it  antecedently  to  the  grant "  (Ersk.  ii.  3.  25).  The 
warrandice  to  Ije  implied,  where  not  expressed,  depends  on  the  nature  of 
the  deed.  In  a  sale  for  an  adequate  price,  absolute  warrandice  is  implied. 
By  statute,  the  phrase  "  I  grant  warrandice,"  when  contained  in  a  disposi- 
tion, "  shall,  unless  specially  qualified,  Ije  held  to  imply  absolute  warrandice 
as  regards  the  lands  and  writs  and  evidents,  and  warrandice  from  fact  and 
deed  as  regards  the  rents"  (Titles  Consol.  Act,  1868,  s.  8  and  Sched.  B). 
Warrandice  differs  from  warranty  of  title  in  respect  that  no  action  lies  upon 
it  till  the  grantee  is  evicted,  or  is  at  least  distressed  with  a  view  to  eviction 
(Ersk.  ii.  3.  30;  Bell,  Prin.  s.  122).  "It  has  also  this  peculiarity  in  common 
with  other  obligations  of  indemnity,  that  its  extent  is  measured  by  the  extent 
of  the  injury  which  the  creditor  in  the  obligation  may  sustain,  because 
such  obligations  are  designed  to  indemnify  the  purchaser  not  only  against  the 
consequences  of  complete  eviction,  but  against  the  loss  of  the  most  incon- 
siderable fraction  of  the  estate,  or  its  diminution  in  value,  by  reason  of  the 
establishment  of  a  burden  of  any  kind"  (Welsh,  1894,  21  E.  769,  per  Ld. 
M'Laren).  The  l)uyer's  remedy  is  a  claim  for  indemnity  for  loss  sustained 
through  eviction,  and  in  an  irredeemable  conveyance,  the  warrandice  as  a 
general  rule  subjects  the  seller  in  payment  of  the  value  of  the  lands  at  the 
date  of  eviction  {Livingston,  1777,  5  Br.  Sup.  636 ;  Inr/lis,  1771,  Mor. 
16633  ;  liell,  Prin.  s.  126 ;  but  see  remarks  of  Ld.  IM'Laren  in  LouttWs 
Trs.,  1892,  19  E.  791,  at  800). 

The  warrandice  clause  of  a  disposition,  however  strongly  expressed, 
does  not  extend  to  a  damnum  fataU  {Dunipacc,  1636,  Mor.  16581).  In 
a  case  of  partial  eviction,  the  buyer  is  not  entitled  to  obtain  from  the 
seller  the  value  of  the  subjects  on  tendering  a  reconveyance  ( Welsh, 
1894,  21  E.  769).  Where  part  of  a  coal-field  was  evicted,  the  buyer  was 
lield  entitled  to  repayment  of  a  proportionate  part  of  the  price,  though 
res  lion  inteejrcc  (JUild,  1847,  10  1).  289).  In  special  circumstances,  a 
purchaser  who  had  been  evicted,  was  lield  entitled  to  repayment  of  the  price 
on  his  accounting  for  the  rents,  although  the  value  of  the  subjects  was  less 
tlian  at  the  date  "of  the  sale  (Cairns,  1870,  9  M.  284).  Eeduction  and  resti- 
tution was  also  granted  where  the  seller  was  under  essential  error  induced 
by  the  buyer,  or  at  least  known  to  liim,  regarding  the  amount  of  tlie  feu- 
duty,  but  a  condition  was  attaclied  that  the  seller  should  reimburse  the 
buyer  for  outlays  on  jtermanent  additions  to,  or  improvements  on,  the 
ja-operty  (Steuart's  Trs.,  1875,  3  E.  192).  On  the  other  hand,  reduction  on 
the  ground  of  alleged  misrepresentation  1)y  tlic  seller's  agent  regarding  the 
nature  of  the  tenure  was  refused,  notliiiig  conveyed  by  the  dispositive 
clause  of  the  disposition  liaving  been  evicted  (Brow7ilie,  1880,  7  E.  H.  L. 
()ij).  Where  thei-e  was  attaclied  to  the  dispositive  clause  a  qualification 
tliat  the  buyer  was  to  stand  in  the  sellci-'s  ]ilacc,  tlic  warrandice  clause, 
though  in  terms  aljsolute,  was  held  similarly  ([ualificd  (Lcith  Ilcrilages  Co., 
1876,  3  E.  789).  An  obligation  to  free  lands  from  debt,  arising  out  of  the 
warrandice  clause,  falls  to  V)e  satisfied  by  the  executor  of  the  grantor  of  tlie 
dis])osition  in  a  riuestion  between  liim  and  tlie  lieir  ( .^ fontrose,  1S^7,  h^ 
Ii.  H.  L.  19).  See  as  to  the  nature  of  the  warrandice  falling  to  be  granted 
by  trustees,  and  the  effect  of  ex])ressed  warrandice  on  tlieir  personal  liability, 
Forbes  Trs.,  1822,  1  S.  497;  Pead,  1831,  9  S.  925;  L'lair,  1827,  6  S.  51  ; 
irorshnrrjKs  Trs.,  1886,  14  E.  67. 

The  warrandice  hitherto  referred  to  is  personal  to  the  grantor  and  his 


00  SALE 

heirs  but  real  warranaice,  tlioiigli  now  comparatively  rare,  is  still  occasionally 
resorted  to.  Warrandice  is  real  where  lands,  other  than  those  directly  dis- 
poned are  c.Miveyed  in  smu'itv  acjahist  eviction  from  the  original  lands  (Ersk. 
ii  3  '^'S)  It  is  only  valid  where  eviction  might  take  place  from  infirmity 
of  title  "or  the  existence  of  an  incumbrance.  A  disposition,  therefore, 
bearincr  to  be  in  real  warrandice  of  payment  of  surface  damage  from  the 
workim'  of  minerals  was  held  inefiectual  because  eviction  was  impossible 
iSmltjJsiiffo,  1885,  12  II.  907).  Where  the  title  to  the  original  lands  is 
reasonably  secure  {e.g.  where  prescription  has  intervened),  the  real 
warrandice  does  form  such  a  burden  on  the  warrandice  lands  as  to  justify  a 
inirchaser  in  requiring  it  to  be  discharged  {Durham's  Trs.,  1800,  Mor.  16641). 
Warrandice  is  also  real  in  excambions,  so  that  a  party  evicted  from  exchanged 
lands  has  recourse  against  his  original  lands  though  in  the  hands  of  a 
singular  successor  (Ersk.  ii.  3.  28). 

Buyer's  OUigations. 

1.  To  acce2)t  Deliverij.— This  is  the  counterpart  of  the  seller's  obligation 
to  give  delivery,  and  the  occasions  on  which  performance  will  be  excused 
have  been  considered  above. 

2.  2'o  2^(<I/  t^ie  Price. — Where  no  term  for  payment  of  the  price  is  fixed 
by  the  contract,  the  seller  may  demand  payment  immediately  on  his 
oilering  a  valid  disposition  of  the  subject  sold  (see  Pothier,  Vente,  No.  279). 
Where  a  term  is  specified  for  payment  or  consignation,  the  price  must  be 
paid  or  consigned  accordingly,  otherwise  the  sale  may  be  declared  null  at 
the  instance  of  the  seller  {Black,  1814,  Hume,  699).  Other  conditions,  e.g. 
finding  security  for  the  price,  must  be  fulfilled  in  their  terms,  otherwise  the 
seller  will  be  entitled  to  sell  to  another  {Anderson,  1759,  2  Pat.  22).  Not- 
withstanding a  condition  that  if  two  instalments  of  the  price  should  run 
into  a  third  unpaid,  the  seller  might  resume  possession  and  sell,  the  buyer 
was  allowed  by  the  Court  to  pay  up  arrears  ( Wilson,  1824,  3  S.  1).  The 
seller  is  not  entitled  to  immediate  decree  for  the  price  unless  he  at  the 
same  time  tenders  an  unobjectionable  title  {Howard  &  Wyndham,  1890, 
17  P.  990).  This  was  held  where  an  action  had  been  necessary  to  clear 
the  title,  and  was  still  subject  to  an  appeal  to  the  House  of  Lords  {Traill, 
1877,  5  P.  25).  The  price  was  allowed  to  be  withheld  till  discharges  of 
real  burdens  had  not  only  been  produced  but  placed  on  the  record  {Cargill, 
1822,  1  8h.  App.  134).  So  also,  part  of  the  price  was  allowed  to  be  retained 
against  the  widow's  terce  as  a  preferable  burden  {Boyd,  1805,  Mor.  15874), 
and  against  debts  allocated  on  the  property  though  these  were  alleged  to 
be  prescribed  {Fcdconcr,  1821,  1  S.  214). 

In  heritable  subjects  yielding  rents,  the  buyer  is  entitled  to  these 
from  the  date  of  the  entry  specified  or  implied  in  the  contract  notwith- 
standing delay  in  the  settlement,  but  on  the  other  hand  the  seller  is 
entitled  to  interest  on  the  price  {Speirs,  1827,  5  S.  764).  "  From  whatever 
cause  non-payment  may  proceed,  good  conscience  will  not  suffer  the  pur- 
chaser, at  the  same  time  that  he  enjoys  the  fruits  of  the  lands,  to  enjoy  also 
the  profits  or  interest  of  the  price.  But  if  the  purchaser,  unwilling  to  retain 
the  price,  shall,  on  the  seller's  refusal  to  accept  of  it,  consign  it  in  a  proper 
and  legal  w^ay,  it  stops  the  currency  of  interest,  since  tlie  price  is  no  longer 
in  his  hands  "  (Ersk.  iii.  3.  79).  The  price  was  ordered  to  Ido  consigned  to 
await  the  issue  of  a  question  as  to  the  effect  of  the  want  of  a  deed  forming 
part  of  the  title  {Ferrier,  1823,  2  S.  285);  and  where  part  of  the  price  had 
been  consigned  to  await  the  removal  of  objections  to  the  title,  only  bank 
interest  was  found  due  on  that  part  {Dickson,  1855,  17  D.  524).     Deposit  of 


SALE  23 

the  price  iu  bank  in  name  of  the  buyer  and  a  third  person  is  not  erpiivalent 
to  consignation  {Grandison  s  Trs.,  1895,  22  E.  925).  Where  settlement  was 
delayed  from  causes  for  which  neither  party  was  responsible,  and  where 
the  buyer  had  neither  received  possession  nor  paid  the  price,  the  Court 
fixed  a  new  term  for  performance  {Strang,  1758,  jNIor.  14188).  Interest  on 
the  price  in  arrear  is  usually  charged  at  the  rate  of  five  per  cent. 
{Grandisons  Trs.,  1895,  22  E.  925 ;  Dickson,  1855,  17  D.  524),  but  it  is  not 
an  inflexible  rule  (Traill,  1877,  5  E.  25 ;  see  also  Campbell's  ^xr.,  1898, 
25  R  687 ;  Grant,  1898,  25  E.  948).  The  price  bears  interest  from  Wliit- 
sunday  or  Martinmas  although  the  tenants  do  not  remove  till  a  later  date 
(Stewart,  21  Dec.  1811,  F.  C). 

The  disposition  is  the  usual  evidence  of  payment  of  the  price.  Where 
it  bore  an  unqualified  receipt,  its  terms  were  held  not  to  be  qualified  by  a 
letter  from  one  of  the  parties  to  the  agent  of  the  other  (Clark,  1836,  14  S. 
966  ;  see  also  Sican,  1836,  15  S.  251). 

IV.  Eemedies. 

1.  Specific  Implement. — The  law  of  Scotland,  differing  from  that  of 
England,  allows  this  remedy  both  to  seller  and  buyer.  The  seller,  if  he  is 
in  a  position  to  perform  his  counterpart  of  the  obligation,  can  sue  for  the 
full  price,  and  is  not  confined  to  an  action  of  damages  in  respect  of  the 
buyer's  breach.  So  also  the  buyer  can,  as  a  rule,  claim  specific  implement 
against  the  seller.  "  In  England,  the  only  legal  right  arising  from  a  breach 
of  contract  is  a  claim  of  damages ;  specific  performance  is  not  a  matter  of 
legal  right,  but  a  purely  equitable  remedy,  which  the  Court  can  withhold 
wlien  there  are  sufiicient  reasons  of  conscience  or  expediency  against  it. 
But  in  Scotland,  the  breach  of  a  contract  for  the  sale  of  a  specific  subject, 
such  as  a  landed  estate,  gives  the  party  aggrieved  a  legal  right  to  sue  for 
implement ;  and  although  he  may  elect  to  do  so,  he  cannot  be  compelled  to 
resort  to  the  alternative  of  an  action  of  damages  unless  implement  is  shown 
to  be  impossible,  in  which  case  loco  fact i  suhit  damnum  ct  intercsse  (Stewart, 
1890,  17  E.  II.  L.  1,  per  Ld.  Watson,  at  9). 

2.  Damages. — This  remedy  is  intended  to  form  pecuniary  compensation 
for  a  breach  of  contract,  and  is  open  to  both  seller  and  buyer.  The  party 
aggrieved  may  in  the  same  action  sue  alternatively  for  specific  implement 
or  damages,  or  he  may  sue  for  damages  alune.  Where  specific  implement 
is  impossible,  the  claim  is  necessarily  one  of  damages  only  (Cocker,  1893, 
20  E.  954) ;  and  even  where  it  is  possible  but  difficult,  or  involving  great 
expense  to  the  party  in  default,  it  would  seem  to  be  in  the  power  of  the 
Court  to  decree  damages  instead  of  performance  (il/oo?-(',  1881,  9  E.  337 ; 
Winans,  1883,  10  E.  941 ;  Christie,  1898,  25  E.  824,  per  Ld.  Young,  at  827). 
It  is  said  that  a  buyer  of  heritage  is  not  entitled  to  keep  the  subjects  and 
yet  claim  damages  (Wood,  18S6,  13  E.  1006,  per  Ld.  Kinnear,  at  1008;  see 
also  Iiiglis,  L.  r.,  at  1011);  but  this  can  only  apply  to  an  action  prior  to 
delivery,  and  founded  on  the  seller's  obligation  to  warrant  the  title.  It 
cannot  ajtply  to  warrandice,  or  to  the  exceptional  cases  in  which  the  actio 
quanti  minoris  is  allowed  (see  above,  and  also  the  dicta  of  Ld.  M'Laren  in 
Lonttit's  Trs.,  1892,  19  E.  at  799).  Oi)ini()iis  have  l)ecn  expressed  that 
where  a  sale  has  been  induced  by  the  seller's  fraud,  the  buyer  has  the  option 
either  of  restitutio  in  integrum  or  of  damages  (Dohhic,  1872,  10  ]\I.  810,  per 
Ld.  Kinloch ;  Amaan,  1865,  3  M.  526,  x>'">'  I^'l-  Kinloch ;  but  see  Glegg, 
JRrparation,  212). 

Damages  may  include  incidental  loss,  e.g.  where  the  seller,  trusting  to 


24  SALE 

receipt  of  the  price,  had  incurred  loss  througli  having  intimated  repayment 
of  a  bonil  {Jfansfidd,  1836,  14  S.  585),  or  where  the  buyer  had  resold  and 
incurred  liability  to  the  second  buyer  {Littles  Trs.,  1830,  8  S.  418).  The 
remedy  was  refused  in  Grahavic,  1833,  US.  308,  and  in  Richmond,  1850, 
12  D.  1163.  See  further  as  to  tlie  extent  of  the  claim  under  this  remedy, 
Pa.macjes,  Measure  of. 

3.  ySuspcnsion  and  Interdict. — It  may  be  necessary  in  certain  circum- 
stances to  adopt  one  oi'both  of  these,  remedies,  e.g.  when  a  charge  is  given 
for  the  price,  or  where  the  party  in  possession  proposes  to  deal  with  the 
subject  of  sale  in  a  manner  inconsistent  with  the  rights  of  the  other  party 
(see  Interdict;  Suspension).  Where  seller  and  buyer  differed  as  to 
whether  certain  lands  were  included  in  an  estate  sold  under  a  general 
name,  the  seller  was  held  entitled  to  interdict  in  the  Sheriff  Court  against 
the  buyer  entering  into  possession  of  the  parts  alleged  not  to  have  been 
sold.  It  was  observed,  however,  that  the  substance  of  the  dispute  could 
only  be  cleared  up  by  declarator  {Matheson,  1872,10  M.  704;  see  also 
Lockhart,  1742,  Mor.  14176  ;  Boyd,  1836, 14  S.  653  ;  and  Mackay,  Manual  of 
Practice,  420  seq.,  445  scq.). 

III.  SALE  OF  GOODS. 

The  law  of  the  United  Kingdom  in  regard  to  the  sale  of  goods  is  now 
codified  by  the  Sale  of  Goods  Act,  1893  (56  &  57  Vict.  c.  71).  This  Act 
introduced  important  changes  into  the  law  of  Scotland,  particularly  in  the 
following  respects :  (1)  the  contract  may  now  pass  the  property  irrespective 
of  delivery  (ss.  17,  18);  and  (2)  the  actio  quanti  minoris  is  recognised  to  an 
extent  previously  unknown  in  Scotland  (s.  11  (2)).  The  Act  being 
intended  to  codify  the  leading  features  of  the  common  law",  its  precise  terms 
are  incorporated  below,  with  such  explanations  and  references  to  the 
common  law  not  codified  (see  sec.  61  (2))  as  can  be  conveniently  brought 
within  the  compass  of  this  article. 

The  Act  is  divided  into  six  parts,  viz. :  (1)  Formation  of  the  Contract ; 
(2)  Eflfects  of  the  Contract;  (3)  Performance  of  tlie  Contract;  (4)  Eights  of 
Unpaid  Seller ;  (5)  Actions  for  Breach  of  the  Ccmtract ;  and  (6)  Supple- 
mentary. 

1.   FOEMATION   OF   THE   CONTRACT. 

Contract  of  Sale. 

1,  [Sale  and  Agreement  to  Sell.]  (1)  A  contract  of  sale  of  goods  is  a  contract  whereby 
the  .seller  transfers  or  agrees  to  transfer  the  property  in  goods  to  the  l>uyer  for  a  money 
consideration,  called  the  price.  There  may  Ije  a  contract  of  sale  between  one  part 
owner  and  another. 

(2)  A  contract  of  sale  may  be  absolnte  or  conditional. 

(3)  Where  under  a  contract  of  sale  the  property  in  the  goods  is  transferred  from  the 
seller  to  the  Iniyer  the  contract  is  called  a  sale  ;  but  whore  the  transfer  of  the  property 
m  the  Kood.s  is  to  take  place  at  a  future  time  or  subject  to  .some  condition  thereafter  to 
hn  fulfilled  the  contract  is  called  an  agreement  to  sell. 

lin^  "^'^  ^'gf^ei'i^^nt  to  sell  becomes  a  sale  when  the  time  elapses  or  the  conditions  are 
fiilhlled  subject  to  which  the  property  in  the  goods  is  to  be  transferred. 

2.  [Capanty  to  Buy  and  Sell.]  Capacity  to  buy  and  sell  is  regulated  by  the  general 
law  concerning  capacity  to  contract,  and  to  transfer  and  acquire  property. 

Provided  that  where  necessaries  are  sold  and  delivered  to  an  infant,' or  minor  or  to 
a  person  who  by  reason  of  mental  incapacity  or  drunkenness  is  incompetent  to  contract 
he  must  pay  a  reasonable  price  tlierefor.  ' 

Necessaries  in  this  section  mean  goods  suitable  to  the  condition  in  life  of  such 
intant  or  minor  or  other  person,  and  to  liis  actual  requirements  at  the  time  of  the  sale 
and  delivery. 


SALE  25 

The  question  of  a  general  definition  of  sale  has  been  already  considered 
(c.s.  p.  4).  The  definition  in  sec.  1  refers  only  to  the  sale  of  goods.  It 
attaches  special  significance  to  the  phrase  "  contract  of  sale,"  which,  it  will 
be  observed,  includes  two  things:  (1)  an  "agreement  to  sell,"  i.e.  sale  as 
understood  in  Scotland  before  the  passing  of  the  Act,  and  (2)  "  sale,"  which 
means  an  actual  transfer  of  the  property  in  the  goods  to  tlie  buyer,  irre- 
spective of  delivery.  In  Scotland,  before  tlie  Act,  sale  was  equivalent  to 
the  English  "  agreement  to  sell " ;  now,  in  so  far  as  regards  the  sale  of 
goods,  it  means  sale  together  with  passed  property  in  the  thing  sold. 
Formerly  the  property  could  only  pass  by  means  of  delivery,  which  was  the 
implement  of  the  contract  technically  known  as  sale ;  now  the  property 
may  pass  without  delivery,  in  which  case  the  contract  is  called  a  sale,  as 
distinguished  from  an  agreement  to  sell. 

Capacity  to  contract  continues  to  be  regulated  by  the  domicile  of  the 
person  contracting.  The  introduction  of  the  Scottish  legal  term"mmor" 
into  sec.  2  was  unnecessary,  and  has  a  tendency  to  mislead.  The  proviso  in 
which  it  first  occurs  in  the  section  makes  no  change  in  the  common  law, 
but  the  explanation  of  the  word  "  necessaries "  in  the  last  clause  of  the 
section  is  not  applicable  to  Scotland.  The  words  "  suitable  to  the  infant  or 
minor's  actual  requirements  at  the  time  of  the  sale  and  delivery "  imply 
that  the  seller  must,  as  in  England,  take  the  risk  of  these  requirements 
having  been  otherwise  supplied  (Barnes,  18S4:,  13  Q.  B.  D.  410);  but  in 
Scotland,  if  the  goods  sold  are  in  their  own  nature  suitable  for  the  clotliing, 
education,  or  maintenance  of  a  minor  according  to  his  station  in  life,  the 
seller  is  not  put  upon  inquiry  as  to  whether  the  minor  is  already  furnished 
(Ersk.  i.  7.  33 ;  Johnston,  1782,  Mor.  9036 ;  Scofier,  1783,  Mor.  8930 ; 
Willcie,  1834,  12  S.  506). 

Formalities  of  the  Contract. 

3.  [Contract  of  Sale,  koto  made.]  Subject  to  the  provisions  of  this  Act  and  of  any 
statute  in  tliat  behalf,  a  contract  of  sale  may  be  made  in  writing  (either  with  or  with- 
out seal),  or  by  word  of  mouth,  or  partly  in  writing  and  jiartly  by  word  of  iiioutli,  or 
may  be  implied  from  the  conduct  of  the  parties. 

Provided  that  nothing  in  this  section  shall  affect  the  law  relating  to  corporations. 

4.  [Contract  of  Hale  for  Ten  Pounds  and  i(2ncards.]  (1)  A  contract  for  the  sale  of  any 
goods  of  the  value  of  ten  pounds  or  upwards  shall  not  be  enforceable  by  action  unless 
the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,  or  give 
sometliing  in  earnest  to  bind  the  contract,  or  in  part  payment,  or  unless  some  note  or 
memorandum  in  writing  of  the  contract  be  made  and  signed  by  the  party  to  be  charged 
or  his  agent  in  that  behalf.  .  v        i 

(2)  The  provisions  of  this  section  apply  to  every  such  contract,  notwithstanding  that 
the  goods  may  be  intended  to  be  delivered  at  some  future  time,  or  may  not  at  the  time 
of  such  contract  be  actually  made,  procured,  or  i)iovided,  or  iit  or  ready  for  delivery, 
or  some  act  may  be  requi.site  for  tlie  making  or  completing  thereof,  or  rendering  the 
same  fit  for  delivery. 

(3)  Tlif-re  is  an  "acceptance  of  goods  within  the  meaning  of  this  section  when  the 
buyer  does  any  act  in  relation  to  the  goods  which  recognises  a  i)re-existing  contract  of 
sale  whether  there  be  an  acceptance  in  performance  of  the  contract  or  not. 

(4)  Tlie  provisions  of  this  section  do  not  apply  to  Scotland. 

These  sections  arc  jinicticjilly  dc(d;iriit<iry  nf  tbc;  law  of  Scotland  and 
England.  Sec.  4  is  substantially  a  reproduction  of  sec.  17  of  the  English 
Statute  of  Frauds  ;  but  as  the  section  does  not  apply  to  Scotland,  it  docs  not 
require  furtlicr  notice.  Under  sec.  3,  it  will  be  observed  tliat  the  sale  of 
goods  differs  from  the  sale  of  heritage  in  Scotland  in  Ijcing  consensual,  i.e. 
the  contract  may  be  proved  either  by  writing  or  by  parole  testimony  (see 
Contuact).  If,  however,  the  parties  stipulate  for  writing,  the  contract  is 
not  complete  without  it  (Ersk.  iii.  2.  4  ;    JFallacc,  1700,  Mor.  8475).     There 


26  SALE 

may  he  ililTiculties  as  to  form  where  heritage  and  moveables  are  sold  under 
the  same  contract  (see  Allan,  1875,  2  E.  587).  An  informal  writing  (i.e.,  in 
Scctland,  a  writing  neither  holograph  nor  tested)  may  be  accepted  as 
evidence  of  a  sale  of  goods,  but  if  challenged  it  will  not  be  conclusive.  By 
the  Interi)retation  Act,  1889,  "  expressions  in  any  Act  referring  to  writing 
shall,  unless  the  contrary  intention  appears,  be  construed  as  including 
references  to  printing,  lithography,  photography,  and  other  modes  of 
representing  and  reproducing  words  in  a  visible  form  "  (52  &  .53  Vict.  c.  63, 
s.  20).  It  is  often  stated  that  writing  is  necessary  to  the  sale  of  a  ship  (see 
Contu.\ct;  Bell,  Frin.  s.  1457);  but  if  by  this  is  meant  that  writing  is 
necessary  to  the  constitution  of  the  contract,  and  that  its  absence  will  give 
locus  pcenitenticc  to  a  verbal  contractor,  the  proposition  may  be  called  in 
(|uestion.  Formerly  writing  was  necessary  under  the  Merchant  Shipping 
Acts,  but  the  personal  contract  may  now  be  constituted  verbally,  though 
writing  is  still  necessary  in  connection  with  the  registration  of  the  transfer 
by  which  the  buyer  becomes  the  holder  of  a  jus  in  re  (cf.  34  Geo.  iii.  c.  68, 
s.'  14,  and  3  &  4  Will.  iv.  c.  55,  s.  32,  with  57  &  58  Vict.  c.  60 ;  also  v.i. 
p.  39).  Writing  was  not  necessary  to  the  sale  of  a  ship  in  Scotland  prior 
to  the  statutory  law  on  the  subject  {Catlicart,  1681,  Mor.  8471).  The 
nature  of  shipping  property  is,  however,  so  exceptional,  that  a  verbal 
contract  for  the  sale  of  a  ship  of  such  tonnage  as  to  require  registration 
would  require  proof  more  than  usually  clear  in  order  to  overcome  the 
presumption  arising  from  contrary  usage. 

Suhject- Matter  of  Contract. 

5.  [Existiiuj  or  Future  Goods.']  (1)  The  goods  which  form  the  subject  of  a  contract  of 
sale  may  be  either  existing  goods,  owned  or  possessed  by  the  seller,  or  goods  to  be  manu- 
factured or  acquired  by  the  seller  after  the  making  of  the  contract  of  sale,  in  this 
Act  called  "  future  goods." 

(2)  There  may  be  a  contract  for  the  sale  of  goods,  the  acquisition  of  which  by  the 
seller  depends  upon  a  contingency  which  may  or  may  not  happen. 

(3)  Where  by  a  contract  of  sale  the  seller  purports  to  effect  a  present  sale  of  future 
goods,  the  contract  operates  as  an  agreement  to  sell  the  goods. 

6.  [Goods  irliich  have  ijerishcd.l  Where  there  is  a  contract  for  the  sale  of  specific  goods, 
and  the  goods  without  the  knowledge  of  the  seller  have  perished  at  the  time  when  the 
contract  is  made,  the  contract  is  void. 

7.  [Goods  Perishing  before  Sale  hut  after  Agreement  to  Sell.']  Where  there  is  an 
agreement  to  sell  specific  goods,  and  subsequently  the  goods,  without  any  fault  on 
the  part  of  the  seller  or  buyer,  perish  before  the  risk  passes  to  the  buyer,  the 
agreement  is  thereby  avoided. 

The  subject-matter  of  sale  is  here  divided  into  (1)  "  existing  goods  " 
and  (2)  "  future  goods."  Among  future  goods  are  those  contracted  to  be 
manufactured.  The  English  rule  prior  to  the  Act  was  that  where  the 
seller  was  a  manufacturer,  there  was  an  implied  condition  that  the  goods 
furni.shed  were  of  his  own  manufacture  {Johnson,  1881,  7  Q.  B.  D.  438), 
but  the  Scottish  rule  had  no  such  condition  {West  StocUon  Iron  Co.,  1880, 
7  It.  1055  ;  Johnson,  1881,  8  E.  437).  Future  goods  may  form  the  subject 
of  an  ''agreement  to  sell"  but  they  cannot  be  made  the  subject  of  a 
"  sale "  so  as  to  pass  the  property.  In  this  respect  sec.  5  is  merely 
declaratory  of  the  common  law  of  England  {T.iinn,  1845,  3  C.  B.  379  ; 
Lawjton,  1859,  28  L.  J.  Ex.  252  ;  Moakes,  1865,  19  C.  B.  N.  S.  290),  but  as 
explained  above,  the  agreement  to  sell  was,  prior  to  the  Act,  called  a  sale 
in  Scotland,  though  it  did  not  pass  the  property. 

Sec.  6,  referring  to  goods  which  have  perished,  is  founded  on  the 
English  case  Couturier,  1856,  7  H.  L.  Cas.  673,  where  a  sale  of  corn  at 
sea  was  contracted  in  London,  but  it  was  afterwards   found  that  the  carcro, 


SALE  27 

having  got  heated,  had  been  sold  at  a  foreign  port  before  the  date  of  the 
contract.  Ld.  Chan.  Cranworth,  in  giving  judgment  in  the  House  of  Lords, 
held  that  "  \vhat  the  parties  contemplated  was  an  existing  something  to  be 
sold  and  bought."  The  case  further  shows  that  it  is  not  essential  to  the 
application  of  the  rule  that  the  goods  perish  physically,  if  they  cease  to 
answer  the  description  in  the  contract.  The  corn  continued  to  be  called  by 
that  name,  but  it  was  no  longer  the  specific  cargo  intended  by  the  parties. 
Where  the  goods  sold  have  partially  perished,  tlie  only  question  seems  to  be 
wliether  the  subject  of  sale  continues  to  answer  the  contract  description. 
If  not,  it  ceases  to  be  the  specific  article  sold.  This  may  be  deduced  from 
the  converse  proposition  that  if  the  thing  sold  continues  to  answer  the 
description,  the  sale  is  good  {Barr,  1838,  3  M.  &  W.  390).  A  difficulty 
may  be  suggested  where  specific  goods,  subject  to  two  or  more  contracts  of 
sale,  are  found  to  have  been  partially  destroyed.  Analogy  pomts  to  both 
contracts  being  void  though  each  separately  is  capable  of  fulfilment.  The 
further  question,  however,  arises  whether,  in  the  case  supposed,  the  goods 
are  really  specific  so  as  to  come  within  sec.  G. 

Sees.  6  and  7  refer  only  to  specific  goods,  i.e.  to  goods  "identified 
and  agreed  upon  at  the  time  a  contract  of  sale  is  made"  (s.  62  (1)).  In 
sec.  6  the  goods  are  supposed  to  be  the  subject  of  a  "sale,"  under  which, 
had  they  not  previously  perished,  both  property  and  risk  would  have 
passed  to  the  buyer :  in  sec.  7  the  goods,  though  specific,  are  subject 
only  to  an  "  cujreement  to  sell,"  which  passes  neither  property  nor  risk. 
Sec.  7  is  founded  on  Hoivell,  1874,  1  Q.  B.  D.  258.  It  applies  to  the 
cases  specified  in  sec.  18,  rules  2  and  8,  and  also  to  any  case  in  which 
the  parties  have  agreed  to  alter  the  jj?'2?/2a  facie  rule  (s.  20)  by  postponing 
the  passing  of  the  risk. 

The  Price. 

8.  [Ascertainment  of  Price.]  (1)  The  price  in  a  contract  of  sale  may  be  fixed  by  the 
contract,  or  may  lie  left  to  be  fixed  in  manner  thereby  agreed,  or  may  be  determined  by 
the  course  of  dealing  between  the  jjarties. 

(2)  AVhere  the  price  is  not  determined  in  accordance  with  the  foregoing  provisions 
the  buyer  must  pay  a  reasonable  price.  What  is  a  reasonable  price  is  a  question  of  fact 
dependent  on  the  circumsUmces  of  each  particular  case. 

9.  [Afjrcement  to  Sell  at  J^aluatiun.]  (1)  Where  there  is  an  agreenu-nt  to  sell  goods  on 
the  terms  that  the  price  is  to  be  fixed  by  the  valuation  of  a  third  party,  and  such  third 
party  cannot  or  does  not  make  such  valuation,  the  agreement  is  avoided  ;  provided  that 
if  the  goods  or  any  part  thereof  have  been  delivered  to  and  a]»propriated  by  the  buyer  he 
must  pay  a  reasonable  jirice  therefor. 

(2)  Where  such  third  i)arty  is  prevented  from  making  the  valuation  by  the  fault  of 
the  seller  or  buyer,  the  party  not  in  fault  may  maintain  an  action  for  damages  against 
tlie  party  in  fault. 

The  price  may  1)C  ascertained  in  three  dillcrent  wa}s :  (1)  (i-xcd  by  the 
contract,  (2)  fixed  in  manner  specified  in  the  contract,  or  (3)  determined 
by  the  course  of  dealing  between  the  parties.  Failing  all  of  these,  the 
buyer  must  ])ay  a  reasonable  price.  Sec.  18  is  declaratory  of  the  law  of 
England  (Arebal,  1834,  10  liing.  370 ;  Hoadley,  1834,  10  Ling.  482) ;  but  in 
80  far  as  it  admits  of  tlic  fixing  of  a  reasonable  price,  it  seems  to  alter  the 
common  law  of  Scotland.  Previous  to  the  Act  a  fixed  price  was  an 
essential  of  sale  {v.s.  p.  11).  It  is  true  that  if  tlic  sale  liad  lieen 
"  executed,"  i.r.  if  delivery  had  taken  ])lace,  the  buyer  was  obliged  to  pay 
the  market  ja-ice  of  the  goods  actually  received  by  him  {Leslie,  1714, 
Mor.  14197  ;  i^liiart,  1885,  13  K.  221) ;  but  this  was  due  not  to  agreement, 
but  to  the  fact  that  something  liad  followed  on  the  supposed  contract  which 
could  not  be  undone.     The  party  rcfciving  the  benefit  was  in  cfjuity  bound 


JS  SALE 

to  recompense  the  other  at  the  market  rate,  but  he  had  no  obligation  in 
voi^ard  to  any  part  of  the  goods  not  delivered.  The  same  principle  held 
^vhere  there  was  mutual  error  regarding  the  price.  The  buyer  was  bound 
to  pay  the  market  value  of  the  goods,  but  only  in  so  far  as  res  non  integrm 
{Sword,  1771,  Mor.  14241;  Stuart,  v.s.).  Now,  however,  the  law  of 
Scotland  has  been  assimilated  to  that  of  England.  The  "  course  of  deaHng 
between  llie  parties"  (s.  8  (1))  has  no  necessary  connection  with  usage  of 
trade  Trade  usage  may,  however,  be  implied  so  as  to  fix  the  price  or  the 
mode  of  payment  {Stcioart,  1831,  9  S.  466 ;  Athya,  1856,  18  D.  1299).  In 
some  trades  a  large  proportion  of  the  price,  e.g.  20  or  30  per  cent.,  is 
discounted  in  respect  of  settlement  of  the  price  when  due.  It  depends, 
howe\-er,  on  the  circumstances  whether  the  allowance  made  is  a  "  trade 
di.-^i'ount"  or  "a  discount  for  prompt  payment."  In  the  former  case  the 
original  agreement  or  course  of  dealing  is  not  altered  by  a  statement  in  the 
invoices  sent  out  with  the  goods  that  accounts  not  paid  within  a  certain 
period  are  not  subject  to  discount.  The  discount  must  therefore  be  allowed 
although  the  period  has  expired  {Buchanan,  1895,  23  E.  264).  In  the 
latter  case  the  seller  is  under  no  ol)ligation  to  allow  the  discount  if  he 
requires  to  raise  action  or  to  claim  in  the  buyer's  sequestration  {Duncan, 
1879,  6  l\.  582).  In  English  bankruptcy  a  discount  for  prompt  payment 
must  not  exceed  5  per  cent.  (Bankruptcy  Act,  1883,  Sch.  3,  r.  8 ;  Chavihers, 
1897,  76  L.  T.  K  S.,  780),  but  there  is  no  corresponding  rule  in  Scotland. 

Mere  inadequacy  of  price  without  fraud  will  not  avoid  the  sale 
(Er.sk.  iii.  3.  4;  Fairie,  1669,  Mor.  14231  ;  Dawson,  1851,  13  D.843 ;  Latta, 
1865,  3  M.  508),  The  price  must  Ije  in  the  form  of  money  ;  and  if  required 
by  the  seller,  payment  must  be  made  by  a  legal  tender.  In  Scotland  a 
legal  tender  is  confined  to  coinage,  viz.  gold  for  a  payment  of  any  amount, 
silver  for  a  payment  not  exceeding  forty  shillings,  bronze  for  a  payment 
not  exceeding  one  shilling  (33  Vict.  c.  10,  s.  4).  Notes  of  Scotch  banks  are 
not  a  legal  tender ;  and  Bank  of  England  notes,  though  a  legal  tender  in 
England,  are  not  so  in  Scotland  (8  &  9  Vict.  c.  38,  s.  15).  But  an  objection 
to  tender  of  payment  in  any  commonly  recognised  currency  has  been 
looked  upon  by  tlie  English  Courts  with  disfavour  {Polglass,  1831,  2  Cr.  & 
J.  15  ;  Benjamin,  Sale,  423),  and  similar  views  would  no  doubt  be  held 
in  regard  to  an  offer  of  payment  in  Scotland  by  means  of  Scotch  bank 
notes. 

When  payment  is  made  under  a  condition  either  expressly  or  tacitly 
acquiesced  in  by  the  seller,  the  condition  must  receive  effect.  Thus  where  a 
cheque  was  enclosed  in  a  letter  requesting  in  return  a  guarantee  in  regard 
to  delivery  of  the  goods,  the  receiver,  having  cashed  the  cheque,  but  refused 
the  guarantee,  was  held  liable  in  repayment  {Scnifle,  1889,  16  E.  790). 

Proof  of  payment  of  the  price  differs  in  England  and  Scotland.  In 
England  parole  evidence  is  allowed,  but  in  Scotland  written  evidence  only 
is  permitted,  except  in  ready-money  transactions,  or  where  the  amount  is 
under  £8,  6s.  8d.  The  Mercantile  Law  Commission  of  1855  recommended 
that  the  law  of  Scotland  in  this  respect  should  be  assimilated  to  that  of 
England  (2nd  Eep.  p.  7),  but  the  recommendation  did  not  receive  statutory 
effect. 

Sec.  9  deals  with  an  agreement  that  the  price  should  be  fixed  by  the 
valuation  of  a  third  party.  Failure  on  the  part  of  the  third  party  to  make 
the  valuation  avoids  the  sale ;  but  if  this  result  arises  from  the  fault  of 
eitlier  seller  or  buyer,  the  injured  party  retains  a  right  of  damages.  The 
common  law  of  Scotland  goes  further  than  sec.  9,  for  it  permits  a 
reference  of  the  amount  of  the  price  not  merely  to  a  third  party,  but  to  one 


SALE  29 

of  the  contracting  parties  themselves  {Steven,  1760,  Mor.  3158  (seller) ; 
Montrose,  1639,  Mor.  14155  (buyer) ;  Lavaggi,  1872,  10  M.  312  (buyer)).' 
Scottish  legal  writers  generally  state  or  assume  that  the  price  so  fixed  is 
not  absolute,  but  subject  to  correction  by  a  judge  (Ersk.  iii.  3.  4 ;  Bell 
Prin.  s.  92;  M.  P.  Brown,  Sale,  150);  and  Stair  extends  the  same  rule  to 
any  reference  of  the  price  to  a  third  party  (Stair,  i.  14.  1).  In  either  case 
it  is  difficult  to  see  how  a  judge  could  interfere  unless  upon  a  formal 
reduction  of  the  award.  If  an  arbiter  accept  office,  he  cannot  refuse  to  pro- 
ceed to  a  final  determination  {Ed.  &  Glas.  By.  Co.,  1853,  15  D.  603);  and  in 
England  a  valuer  who  so  refuses  will  be  held  liable  in  damages  {Jenkins 
1854,  15  C.  B.  189  ;  Cooper,  1856,  25  L.  J.  Ex.  114).  Although  the  agree- 
ment is  made  void  under  sec.  9,  the  buyer,  if  he  has  received  and 
retained  or  used  the  goods,  will  be  liable  upon  a  quantum  meruit  {Clarke, 
1856,  18  C.  B.  705). 

Conditions  and   Warranties. 

10.  [Stipulations  as  to  Time.]  (1)  Unless  a  different  intention  aj^pears  from  the  terms 
of  the  contract,  stiiiulatious  as  to  time  of  payment  are  not  deemed  to  be  of  the  essence 
of  a  contract  of  sale.  Whether  any  other  stipulation  as  to  time  is  of  the  essence  of  the 
contract  or  not  depends  on  the  terms  of  the  contract. 

(2)  In  a  contract  of  .sale  "month"  menns  prima  facie  calendar  month. 

11.  [Jr/ien  Condition  to  he  treated  as  JFarrantij.]  (1)  In  England  or  Ireland — 

{a)  Where  a  contract  of  sale  is  subject  to  any  condition  to  be  fulfilled  by  the  seller, 
the  buyer  may  waive  the  condition,  or  may  elect  to  treat  the  breach  of  such 
condition  as  a  breach  of  warranty,  and  not  as  a  ground  for  treating  the 
contract  as  repudiated. 

(6)  Whether  a  stipulation  in  a  contract  of  sale  is  a  condition,  the  breach  of  whicli 
may  give  rise  to  a  right  to  treat  the  contract  as  repudiated,  or  a  Avarranty,  the 
breach  of  which  may  give  rise  to  a  claim  for  damages  but  not  to  a  right  to  re- 
ject the  goods  and  treat  the  contract  as  repiidiated,  depends  in  each  case  on  the 
construction  of  the  contract.  A  stipulation  may  be  a  condition,  though  called 
a  warranty  in  the  contract : 

(c)  "Where  a  contract  of  sale  is  not  severable,  and  the  buyer  has  accepted  the 
goods,  or  part  tliereof,  or  where  the  contract  is  for  specilic  goods  the  jiroporty 
in  which  has  i)assed  to  the  buyer,  the  breach  of  any  condition  to  be  fulfilled  by 
the  seller  can  only  be  treated  as  a  breach  of  warranty,  and  not  as  a  ground  for 
rejecting  the  goods  and  treating  the  contract  as  repudiated,  unless  there  be  a 
term  of  the  contract,  express  or  implied,  to  that  efl'ect. 

(2)  In  Scotland,  failure  by  the  seller  to  jierform  any  material  part  of  a  contract  of 
sale  is  a  breach  of  contract,  which  entitles  the  buyer  either  within  a  reasonable  time 
after  delivery  to  reject  the  goods  and  treat  the  contract  as  repudiated,  or  to  retain  the 
goods  and  treat  the  failure  to  perform  such  material  part  as  a  breach  which  may  give 
rise  to  a  claim  for  compensation  or  damages. 

(3)  Nothing  in  this  section  shall  affect  the  case  of  any  condition  or  warranty, 
fulfilment  of  which  is  excused  by  law  by  reason  of  imjiossibility  or  otherwise. 

12.  [Implied,  Undertakimj  as  to  Title,  etc.]  In  a  contract  of  sale,  unless  the  circum- 
.stances  of  the  contract  are  such  as  to  show  a  different  intention,  there  is — 

(1)  An  im])lied  condition  on  the  part  of  the  seller  that  in  the  case  of  a  sale  he  has 

a  rigiit  to  sell  the  goods,  and  that  in  the  case  of  an  agreement  to  sell  he  will 
have  a  right  to  sell  the  goods  at  the  time  when  the  i)roi)erty  is  to  pass  : 

(2)  An  implied  warranty  that  the  buyer  shall  liave  and  enjoy  (|uiet  possc-^sion  of 

the  goods  : 

(3)  An  implied  warranty  that  the  goods  shall  be   free  from  any  charge  or  encum- 

brance  in   favour  of  any   third  Jiarty,   not  declared  or  known  to  the  buyer 
before  or  at  the  time  when  the  contract  is  made. 

13.  [Side  Inj  Description.']  Where  there  is  a  contract  for  the  sale  of  goods  by  (Icscri])- 
tion,  there  is  an  imjilied  condition  that  the  goods  shall  corres]»otid  with  the  description  ; 
and  if  the  sale  be  by  saini)le,  as  well  as  by  description,  it  is  not  sullirient  that  the  bulk 
of  the  goods  corresponds  with  the  sample  if  the  goo'ls  do  not  also  correspoml  with  ihe 
de.scrij)tion. 

14.  [Implied  Covdilions  as  In  Qualitti  or  Fitness.]  Subjecl  to  the  provisions  of  (hi.s 
Act  and  of  any  statute  in  that  behalf,  there   i.s  no  implied  warranty  or  comlition  as  to 


30  SALE 

the  quality  or  iituess  for  any  particular  purpose  of  goods  supplied  under  a  coatract  of 
s;ilc,  except  as  follows  : — 

(1)  ^Yhere  the  buyer,  expressly  or  by  implication,  makes  known  to  the  seller  the 

particular  purpose  for  which  the  s^'oods  are  required,  so  as  to  show  that  the 
buyer  relies  on  the  seller's  skill  or  judgment,  and  the  goods  are  of  a  description 
wliich  it  is  in  tlie  course  of  the  seller's  business  to  supply  (whether  he  be  the 
manufacturer  or  not),  there  is  an  implied  condition  that  the  goods  shall  be 
reasonably  tit  for  such  purpose,  provided  that  in  the  case  of  a  contract  for  the 
sale  of  a  specified  article  under  its  patent  or  other  trade  name,  there  is  no 
implied  condition  as  to  its  fitness  for  any  particular  purpose  : 

(2)  Where  goods  are  bought  by  description  from  a  seller  who  deals  in  goods  of  that 

description  (whether  he  be  the  manufacturer  or  not),  there  is  an  implied  con- 
dition that  the  goods  shall  be  of  merchantable  quality  ;  provided  that  if  the 
buyer  has  examined  the  goods,  there  shall  be  no  implied  condition  as  regards 
defects  which  such  examination  ought  to  have  revealed  : 

(3)  An  implied  warranty  or  condition  as  to  quality  or  fitness   for  a  particular 

purpose  may  be  annexed  by  the  usage  of  trade. 

(4)  An  express  warranty  or  condition  does  not  negative  a  warranty  or  condition 

implied  by  this  Act  unless  inconsistent  therewith. 

Conditions  in  Scotland  are  divided  into  "  suspensive  "  and  "  resolutive," 
corresponding  to  what  are  termed  in  England  conditions  "precedent"  and 
"  subsequent."  A  suspensive  condition  holds  the  sale  in  suspense  until  the 
condition  is  fulfilled.  A  resolutive  condition  implies  that  a  sale  has  taken 
place,  but  that  in  a  certain  event  the  contract  will  be  resolved  or  "  dissolved," 
and  the  subject  of  sale  become  unsold,  res  fit  incmpta  (Stair,  i.  14.  3-5  ; 
Bell,  Com.  i.  256  seq. ;  M.  P.  Brown,  Sale,  32  scq.,  427  scq.).  In  the  event 
of  the  sale  being  resolved,  the  rights  of  parties  will  be  extricated  according 
to  agreement,  or  failing  agreement,  by  restoring  each  party  as  nearly  as 
possible  to  his  former  position.  The  rights  of  third  parties  are  affected 
differently  by  the  two  kinds  of  conditions.  A  suspensive  condition  enables 
the  seller  to  maintain  the  property  as  against  third  parties  whose  only 
right  is  derived  from  the  buyer,  and  it  is  of  no  consequence  that  the  buyer 
when  he  granted  the  supposed  right  had  obtained  delivery  and  was  in 
possession  of  the  goods.  A  resolutive  condition,  on  the  other  hand,  does 
not  prevent  the  buyer  from  giving  a  title  to  others  which  will  prevent  the 
seller  from  reclaiming  the  property  (Stair,  i.  14.  4,  5;  Ersk.  iii.  3.  11,  12; 
and  Ivory's  note,  p.  648 ;  Pothier,  OUig.  No.  224). 

A  suspensive  condition  or  condition  precedent  takes  two  forms : 
(1)  it  may  avoid  the  contract,  leaving  both  parties  free;  or  (2)  it  may 
render  the  contract  voidable  in  the  option  of  one  of  the  parties.  In  the 
former  case  the  contract  itself  is  conditional ,  in  the  latter  case  the  con- 
dition does  not  attach  to  the  constitution  of  the  contract,  but  to  its  perfor- 
mance, so  that  non-fulfilment  by  one  of  the  parties  constitutes  a  breach  of 
contract  and  entitles  the  other  party  to  sue  for  implement  or  damao-es. 
In  sec.  1,  "  conditional,"  as  opposed  to  "  absolute,"  embraces  both  forms^  of 
condition,  while  sees.  6  and  7  are  examples  of  conditions  attaching  to  the 
constitution  of  the  contract.  In  the  sections  immediately  aljove  quoted 
the  reference  is  to  conditions  not  voiding  the  contract,  but  renderino- 
fulfilment  imperative  on  one  or  other  or  both  of  the  parties.  The  effect 
of  such  a  condition  is  that  in  the  event  of  non-fulfilment,  the  party  not  in 
fault  lias  appropriate  remedies  against  the  other.  There  is,  however,  a 
third  use  of  the  words  "  suspensive  condition,"  illustrated  by  the  contract 
of  hire-purchase,  to  which  reference  has  already  been  made  (us.  p.  5), 
The  condition  in  tlic  ease  iiow  referred  to  is  suspensive  not  of  the  sale,  but 
of  the  passing  of  the  property.  Strictly  speaking,  such  a  stipulation  is  not 
a  condition,  but  a  term  of  the  contract.  Questions  arising  from  it  do  not 
involve  a  breach  of  any  contractual  obligation,  but  result  from  an  assump- 


SALE  31 

tion  bytlie  buyer  of  a  right  of  property  which  he  does  not  possess.  Such 
questions  rarely  arise  between  the  seller  and  the  buyer,  or  between  the 
seller  and  anyone  deriving  Icyal  right  from  the  buyer  (but  see,  e.g.,  Glasgow 
Furniture  Co.,  1898,  14  Sh.  Ct.  Eep.  356).  For  the  most  part  they  are 
consequent  upon  the  buyer's  fraud  (e.g.  Murdoch,  1889,  16  R.  396),  and 
resolve  themselves  into  a  vindication  of  the  property  by  the  true  owner 
(the  original  seller)  as  against  a  supposed  right  of  property  held  l)y  the 
deceived  person  (the  second  buyer). 

The  term  "  warranty  "  is  used  in  the  Act  in  a  peculiarly  English  sense. 
It  is  defined,  as  regards  England  and  Ireland,  as  "an  agreement  with 
reference  to  goods  which  are  the  subject  of  a  contract  of  sale,  but  collateral 
to  the  main  purpose  of  such  contract,  the  breach  of  which  gives  rise  to  a 
claim  for  damages,  but  not  to  a  right  to  reject  the  goods  and  treat  the 
contract  as  repudiated"  (s.  62  (1)).  In  Scotland,  however,  the  word 
"warranty"  is  generally  used  in  its  natural  sense  of  guarantee  (l<'.  con- 
dition), and  it  is  practically  so  defined  as  to  Scotland  (s.  62  (1)).  In 
England  both  condition  and  warranty  are  parts  of  the  contract,  but  the 
former  is  fundamental  and  essential,  while  the  latter  is  only  collateral. 

Sec.  10  deals  with  stipulations  as  to  time,  and,  so  far  as  regards  time  of 
payment,  is  founded  on  the  English  case,  Martindalc,  1841,  1  Q.  B.  389. 
The  law  of  Scotland  is  not  changed  {Linn,  1863,  2  M.  88).  The  mere  fact 
that  payment  by  draft  forms  a  term  of  the  contract,  and  that  the  buyer  has 
not  accepted  the  seller's  draft,  will  not  prevent  the  property  passing  unless 
n,jus  disponcndi  (see  sec.  19)  has  either  been  reserved  in  the  contraclb  or  is  to 
be  inferred  from  the  circumstances  (cf.  Clarke,  1885,  12  E.  1035,  with 
Brandt,  1876,  3  E.  375).  Time  of  payment  was,  however,  held  to  be  of  the 
essence  of  the  contract  in  Younq,  1785,  Mor.  14191  ;  Hill,  1785  Moy 
14200  ;  aird.  II.  L.,  1786,  3  Pat.  47  ;  Brodie,  20  May  1814,  F.  C. ;  and  (in  a 
continuing  contract)  in  Turnhull,  1874,  1  E.  730.  Stipulations  as  to  time, 
other  than  time  of  payment,  are  entirely  matter  of  construction.  The 
condition  founded  on  was  held  not  essential  in  Itaclurn,  1832,  10  S  761  • 
Forbes,  1885,  12  E.  1065;  Paton,  1897,  II.  L.,  35  S.  L.  E.  112;  but  it  was 
held  otherwise  in  Hannay,  1788,  Mor.  14194;  Fiohh,  1840,  2  D  988" 
Calvin,  1857,  19  D.  890 ;  M'Bride,  1875,  2  E.  775. 

Sec.  11  (2)  introduced  into  Scotland  an  entirely  new  remedy  in  favour 
of  the  Ijuyer.  It  gives  the  buyer  in  Scotland  a  right  to  keep  the  goods  and 
claim  damages,  without  restricting  the  right  which  he  previously  possessed 
of  rejecting  tlie  goods  and  rescinding  the  contract.  The  buyer  in  Scotland 
has  thus  an  alternative  remedy,  and  is  not  only  in  a  more  advantageous 
position  tlian  formei-ly,  l)ut  enjoys  a  privilege  not  known  in  England.  The 
English  law  on  the  subject  is  expressed  in  sec.  11  (1),  which,  it  will  be 
observed,  does  not  give  the  buyer  an  option  of  two  remedies,  but  states  the 
circumstances  in  which  he  may  avail  himself  of  tlie  remedies  under  a 
condition  or  under  a  warranty  in  tlie  Englisli  sense  of  the  latter  term. 

The  remedy  of  keeping  the  goods  and  yet  claiming  damages  from  tlie 
seller  in  respect  of  defective  quantity  or  quality  coi-responds  to  tlic  actio 
quanti  minoris  of  the  lioman  law.  I1ie  law  of  Scotland  before  the  Act  did 
not  absolutely  reject  the  actio  quanti  minoris,  but  confined  its  application 
to  defects  of  title  or  quality  discovered  when  niatteis  were  no  lou'i-er 
entire  {LoultiCs  Trs.,  1892,  19  E.  791,  per  Fd.  iM'Faen).  I'rioi-  to  tlie  Act 
it  was  a  i)rerc(iuisitc  to  the  buyer's  claim  for  relief  that,  inimedialely  on 
the  discovery  of  the  defect,  the  goods  should  be  restored  to  the  seller.  Tlie 
buyer  might  then  claim  damages  in  n-sjiect  of  the  seller's  breach  of 
contract;  but  if  he  refused  or  delayed  lu  return  the  goods,  he  was  lield  as 


32  SALE 

electing  to  w;iivc  the  breach,  and  was  obliged  to  pay  the  full  contract  price. 

If,  ho\vever,  restoration  of  the  article  sold  was  impossible  in  consequence  of 

the  defect  not  being  discoverable  until  after  consumption  or  use  by  the 

buyer,  the  seller  was  not  obliged  to  return  the  price  if  it  had  been  paid, 

and,  on  the  other  hand,  the  "buyer  was  free  to  prove  his  damage.     The 

remedy  of  rescission,  thus  qualified,  is  not  impaired  by  the  Act ;  but  if  a 

buyer  rescinds,  instead  of  taking  advantage  of  the  actio  quanti  minoris  in 

the  form  now  enacted  for  Scotland,  he  must  conform  to  the  old  condition  * 

of  rejection  and  timeous  intimation  to  the  seller.     The  section  expressly 

provides  that  the  remedy  of  rejection  of  the  goods  and  rescission  of  the 

contract  must  be  exercised  within  "  a  reasonable  time."     If  the  breach  of 

contract  is  patent,  the  buyer  must  intimate  the  rejection  immediately  on 

delivery,  and  if  latent,  immediately  on  the  defect  being  discovered.     But 

such  words  as  "  immediately,"  "  instantly,"  "  without  delay,"  etc.,  express  no 

more  than  the  "  reasonable  time  "  allowed  by  the  section.     Each  case  will 

largely  depenjd  on  its  own  circumstances.     Thus  intimation  of  rejection 

three  days  after  receipt  of  the  goods  was  held   timeous  in  MBey,  1858, 

20  D.  1151;  five  days  in  MCarter,  1877,  4  E.  890;   and  seven  days  in 

Wallace,  1885,  22  S.  L.  E.  830.     On  the  other  hand,  three  weeks'  delay  in 

intimating  rejection  was  held  fatal  in  Stevenson,  1808,  Mor.  App.  "  Sale,"  5  ; 

so  also  one  month's  delay  in  Pini,  1895,  22  E.  699.     The  subject-matter  of 

the  contract  has  an  important  bearing  on  timeous  or  non-timeous  rejection. 

Thus,  in  the  case  of  seeds,  the  defect  is  generally  latent,  and  cannot  be 

ascertained  till  the  product  appears  above  ground,  or  till  it  reaches  maturity, 

or  even  till  its  consumption.     In  these  cases  rejection  is  timeous  when  the 

fault  is   discovered,   provided   the    buyer   has  not    neglected    reasonable 

opportunities  for  earlier  discovery  {Aclamson,  1799,  Mor.  14244;  Dickson, 

15  Dec.  1808,  F.  C. ;  Hill,  1827,  6  S.  229  ;   Wilson  1894,  21  E.  732).     Again, 

ordinary  principles  as   to  rejection  do  not   apply  to   machinery:    "You 

cannot  tell  whether  it  is  sufficient  till  it  has  been  tried,  and  that  can  be 

done  only  on  the  premises  where  it  is  intended  to  work ;  and,  accordingly, 

it  often  happens  that  after  machinery  has  been  erected  it  goes  well  for  a 

time,  but  afterwards  shows  defects,  which  the  party  who  furnished  it  is 

bound  to  rectify"  (per  Ld.  Pres.  Inglis  in  Fearee,  1869,  7  M.  571).     "The 

time   which   elapsed  between   delivery  and   rejection   was   about   eleven 

months.  _    That   was   a   long  period ;   but   the   mere  lapse    of   that   time, 

considering  that  this  was  a  case  about  the  rejection  of  machinery,  does 

not  in  my  opinion  of  itself  bar  rejection  "  (per  Ld.  Kincairney  in  Morrison 

cC-  Mason  Ltd.,  1898,  25  E.  427,  at  434).     See  further  as  to  machinery, 

Fleminrj,  1882,  9  E.  473;  Dick,  1888,  16  E.  242;  Smith,  1875,  2  E.  601; 

Beesley,  1884,  12  E.  384;  Bradley,  1886,  13  E.  893;  Rolerts,  1896,  23  E. 

855  ;  Electric  Construction  Co.,  1897,  24  E.  312 ;  Baton,  1897,  H.  L,  35  S.  L.  E. 

112;  Morrison  &  Mason  Ltd.  (v.s.).     Several  of  the  above  cases  are  of  date 

subsequent  to  the  passing  of  the  Act.     In  the  Electric  Constrnction  Co.'s  case 

(v.s.)  the  Court  of  Session  admitted  the  buyer's  right  to  reject  a  machine, 

but  held  that,  l)y  continued  use  after  formal  intimation  of  rejection,  the 

right  had  been  lost.     The  buyers  then  fell  back  upon  the  new  alternative 

remedy  of  damages,  but  it  was  held  that  this  also  had  been  lost  by  the 

buyers  having  claimed  a  right  to  reject.     In  the  words  of  Ld.  Kinnear's 

dissentient  opinion,  it  was  held  that  "  the  buyers  cannot  reject  the  goods, 

because  they  have  in  effect  elected  to  retain  them ;  and  at  the  same  time 

they  cannot  claim  damages,  on  the  assumption  of  their  retaining  the  croods, 

because  they  have  elected  to  reject  them "  (24  E.  at  324).     The  decision 

seems  overruled  Ijy  the  subsequent  judgment  of  the  House  of  Lords  in  Baton 


SALE  .  33 

V- 

(v.s.),  where,  although  rejection,  not  having  been  timeously  claimed,  was 
denied,  damages  were  admitted.  The  only  difference  was  that  in  the 
Electric  case  a  valid  claim  to  reject  had  been  made,  but  had  been  lost  by 
retention  of  the  article  ;  while  in  Paton  the  right  was  not  timeously  claimed, 
and  there  was  therefore  nothhig  to  lose.  It  seems  opposed  to  principle 
that  a  buyer  who  by  default  has  lost  one  of  two  alternative  rights  should 
be  placed  in  a  more  favourable  position  than  a  buyer  who  has  in  turn 
established  both  rights,  but  by  his  conduct  has  waived  one  of  them.  It  is 
also  opposed  to  the^law  of  England  {Parl'cr,  1821,  4  15.  &  Aid.  387). 

Under  the  buyer's  new  alternative  right,  it  is  open  to  him  to  retain  the 
goods  and  treat  the  breach  as  giving  rise  to  a  claim  for  damages  "in 
diminution  or  extinction  of  the  price  "  (s.  53).  There  is  no  express  time 
limitation  of  this  right.  It  is  not  provided  that  notice  of  the  intention  to 
claim  damages  must  be  given  within  a  specified  time,  or  within  a  "  reason- 
able time,"  or,  indeed,  that  any  notice  whatever  is  required.  In  England 
no  notice  is  necessary  where  the  breach  is  that  of  a  warranty ,~^ut  the  want 
of  notice  raises  a  strong  presumption  that  the  complaint  is  not  well  founded 
{Fielder,  1788,  1  H.  Bl.  17,  per  Ld.  Loughborough,  at  19).  A  similar 
presumption  will  probably  be  applied  in  Scotland. 

The  price,  or  the  price  with  interest,  may  form  the  measure  of  the 
buyer's  damage.  If  payment  has  been  made,  the  buyer  may  claim 
repayment ;  if  the  price  has  not  been  paid,  the  buyer's  obligation  to  pay  is 
in  this  case  extinguished  {Brotun,  1791,  Mor.  14244;  Aclanison,  1799,  Mor. 
14244;  Wright,  18Z3,  US.  722).  The  damage,  however,  in  the  general 
case  will  be  less  than  the  price,  and  thus  form  a  diminution,  not  an 
extinction  (s.  53).  On  the  other  hand,  it  may  be  greater  than  the  price, 
as  wliere  a  field  is  rendered  useless  for  other  crops  by  the  so\ying  of  bad 
seed,  and  time  and  labour  are  employed  in  unproductive  cultivation  (see 
sec.  53  (4),  and  Wilson,  1894,  21  11.  732  ;  Smith,  1899,  15  T.  L.  11.  179 ; 
JJirnic,  1800,  4  Pat.  144).  Although  the  buyer  who  rejects  goods  is  not 
entitled  to  retain  them  in  respect  of  damages  or  expenses,  he  may  do  so 
(after  due  notice)  in  security  of  repayment  of  the  price  {Fachjctt,  1852, 
15  I).  7G;  Melville,  1856,  18  U.  643;  Laing,  1858,  20  D.  519).  On  tlio 
other  hand,  as  a  check  upon  frivolous  complaints  and  claims  by  the  buyer, 
the  Court  in  Scotland  {i.e.  the  Court  before  which  the  action  depends)  may 
order  him  to  consign  the  price,  or  give  reasonable  security  for  its  due 
payment  (s.  59). 

In  regard  to  conditions  and  warranties,  the  use  of  a  particular  word 
will  not  affect  the  substance  of  the  thing  intended.  "  A  stipulation  may  be 
a  condition  though  called  a  warranty  in  the  contract"  (s.  11  (1));  and  even 
a  re])rcsentation,  although  usually  without  effect  on  the  contract,  may  in 
certain  circumstances  amount  to  a  warranty,  or  even,  in  Scotland,  lo  a 
condition  (see  L'entsen,  [1893]  2  Q.  B.,  per  Bowen,  L.  J.,  at  281).  In  sec.  12 
(2)  we  have  an  exceptional  use  of  the  word  "warranty"  as  applied  to 
Scotland.  As  before  stated,  it  usually  means  "condition,"  and  noii- 
fulfilment  cither  means  no  contract,  or  rescission  of  the  contract.  Here, 
however,  the  word  "warranty  is  used  in  the  English  sense,  and  is  applied 
to  Scotland  as  well  as  to  England.  A  contract  exists,  and  there  is  no 
rescission  or  option  to  rescind.  The  seller  "warrants"  that  "the  buyer 
KJiall  have  and  enjoy  fpiiet  ])OSsession,"  but  a  breach  of  warranty  means  no 
more  than  a  breach  of  the  warrandice  contained  in  a  conveyance  of 
licritable  estate  in  Scotland  (see  siqora,  \).  20).  Tlie  buyer  is  entitled  to 
damages  in  the  event  of  eviction,  and  corresponding  to  its  extent,  but  the 
contract  is  not  rescinded.     The  words  "  quiet  possession  "  arc  taken  from 

S.  E. — VOL.  XI.  ^ 


34  SALE 

the  Encrlish  law  of  real  estate,  which  seems  in  this  respect  to  correspond 
to  the'Scottish  law  of  heritable  estate.  The  use  of  "warranty  m  the 
«?ensc  now  mentioned  is  confined  to  the  second  subsection  ot  sec.  IZ.  in 
the  third  subsection  it  has,  so  far  as  regards  Scotland,  the  usual  meaning 
of  a  condition,  and  involves  rescission  of  the  contract,  unless  where  the 
charge  or  incumbrance  is  not  discovered  till  after  possession  and  use  by 

the  buyer.  .     .  .  ^.      „ 

Sec.  13  deals  with  sale  of  goods  by  description.     The  word    description 
has  two  different  meanings  in  the  Act.     It  is  used  in  a  generic  sense  to 
denote  the  intrinsic  nature  or  quality  of  the  article  sold,  as  where  the  goods 
are  said  to  be  "  of  a  description  "  (i.e.  kind)  "  which  it  is  in  the  course  of  the 
seller's  business  to  supply"  (s.  14  (1)),  or  where  they  are  said  to  be  "mixed 
with  goods  of  a  different  description  "  (s.  30  (3)).     It  is  also  used,  as  m  the 
section  now  referred  to  (s.  13),  to  signify  a  term  of  the  contract  expressing 
in  written  or  spoken  language  the  particular  nature  or  quality  which  it  is 
intended  that  the  article  should  possess.     In  sec.  14  (2)  we  have  the  word 
used  in  each  of  these  different  applications.     In  the  former  case  the  word  is 
appHed  to  attributes  generally ;  in  the  latter  the  meaning  is  restricted  to 
the  form  of  words  by  which  certain  particular  attributes  are  expressed  in 
the  contract.     Confining  ourselves  for  the  present  to  the  second  of  these 
two  meanings,  viz.  that  intended  by  sec.  13,  it  is  to  be  notedthat  although 
there  is  no  implied  warranty  of  quality  or  fitness  except  as  in  sec.  14,  the 
seller  is  bound  to  furnish  goods  of  the  description  specified  in  the  contract. 
An  adjective  may  express  a  description  in  this  sense,  e.g.  Ichaboe  guano 
(Paterson,  1850,   12  D.   502),  or  flax   yarn  (Jaf(^,  1860,  23  D.  242),  or 
oxalic  acid  (Josling,  1863,  13  C.  B.  K  S.  447),  or  cbtster  oats  (Carter,  1885, 
12  K.  1075).     It  is  not  even  necessary  that  there  should  be  a  quahfying 
adjective.     A  single  word  may  stand  as  the  descriptive  name  of  an  article 
consisting  of  many  separate  but  necessary  parts,  e.g.  "  ship,"  which  includes 
all  necessary  saiHng  gear  (Armstrong,  1875,  2  R.  339).     In  all  these  cases, 
delivery  of  an  adulterated  or  imperfect  article  will  not  free  the  seller  from 
his  obligation.     The  thing  delivered  must  meet  the  description,  and  if  the 
name  of  the  article  indicates  its  purpose,  it  must  be  fit  for  that  purpose 
(Van  Oppen,  1855,  18  D.  113).     "  If  the  description  of  the  article  tendered 
is  different  in  any  respect,  it  is  not  the  article  bargained  for,  and  the  other 
party  is  not  bound  to  take  it"  (Bowes,  1877,  2  App.   Ca.  455,  per  Ld. 
Blackburn,  at  480).     Failure  to  furnish  according  to  description  involves 
more  than  a  breach  of  warranty  in  the  English  sense.     It  goes  to  the  root 
of  the  contract  itself,  and  is  not  merely  a  breach  of  a  collateral  agreement. 
Hence,  even  in  England,  it  is  a  "  condition  "  which,  if  not  fulfilled,  may,  in 
the  option  of  the  buyer,  annul  the  contract ;  it  is  not  a  mere  "  warranty  " 
under  which   the   buyer  is   bound   to   rest   content  with   damages.     The 
distinction  may  be  illustrated  by  any  of  the  above-cited  instances.     For 
example,  the  article  furnished  may  be  "flax  yarn,"  thus  answering  the 
description,  but  it  may  be  of  inferior  quality,  in  which  case,  in  England 
(though  not  in  Scotland),  the  buyer's  only  remedy  is  damages  (s.  11  (1)). 
If,  however,  the  article  is  not  altogether  flax,  but  has  an  admixture  of  jute, 
it  ceases  to  answer  the  description,  so  that,  looth  in  England  and  Scotland, 
it  may  be  rejected  and  the  contract  rescinded  (see  Jaffe,  v.s.,  and  Coiiston, 
1872,  10  M.  H.  L.  74,  particularly  the  remarks  of  Ld.  Chan.  Hatherley  in 
the  latter  case,  at  p.  80). 

Sec,  14  embodies  what  remains  of  the  rule  caveat  emptor,  but  the  rule 
itself  is  now  subordinated  to  the  exceptions  expressed  in  the  subsections. 
Comparing  the  section  with  the  law  of  Scotland  immediately  before  the 


SALE 


oo 


passing  of  the  Act,  the  following  alterations  may  be  noted :  (1)  An  implied 
warranty  may  now  be  gathered  from  any  circumstances  tending  to  show 
knowledge  by  the  seller  of  the  purpose  for  which  the  goods  are  required. 
Thus  the  known  occupation  or  trade  of  the  buyer  may  be  important,  as 
where  cork  is  sold  to  a  cork-cutter,  or  flour  to  a  baker,  or  smallwares  to  a 
retail  dealer.  Formerly,  in  Scotland,  in  the  case  of  specific  goods,  there 
was  no  implied  warranty  unless  the  purpose  was  eiyrcssly  stated  (19  &  20 
Vict.  c.  60,  s.  5).  (2)  Goods  bought  by  description  from  a  dealer  must  be 
of  merchantable  quality  under  that  description.  Formerly,  in  the  case  of 
specific  goods,  inferiority  of  quality  gave  no  remedy  by  implication,  unless 
there  was  at  least  a  small  percentage  of  adulteration  to  support  a  plea  that 
the  goods  were  not  of  the  description  stated  in  the  contract  {Hardie,  1870, 
8  M.  798 ;  Hardie,  1870,  42  Sc.  Jur.  454).  (3)  An  implied  warranty  may 
now  be  annexed  by  usage  of  trade.  No  exception  of  this  nature  was 
contained  in  the  Mer.  Law  Amend.  Act  of  1856  (19  &  20  Vict.  c.  60,  s.  5).  Li 
regard  to  non-specific  goods,  i.e.  goods  not  identified  and  agreed  upon  at  the 
time  of  the  contract  (s.  62  (1)),  the  law  of  Scotland  previous  to  the  Act 
did  not  differ  from  that  of  England.  "  If  an  order  was  given  in  a  contract 
of  sale  in  either  country  for  an  article  which  was  l^espoken  with  a  view  to 
be  applied  to  a  particular  pm"pose  and  the  order  was  accepted,  action  would 
lie  on  that  contract  at  the  instance  of  the  purchaser  for  implement  or 
damages,  just  as  in  Scotland  "  (per  Ld.  J.-Cl.  Patton  in  Hutchison,  1867, 6  M. 
57,  at  59). 

Sale  hy  Sample. 

15.  [Bale  by  Sam2')le.]  (1)  A  contract  of  sale  is  a  contract  for  sale  by  sample  where 
there  is  a  term  in  the  contract,  express  or  implied,  to  that  effect. 
(2)  In  the  case  of  a  contract  for  sale  by  sample — 
(«)  There  is  an  implied  condition  that  the  bulk  shall  correspond  with  the  sample 

in  quality  : 
(h)  There  is  an  implied  condition  that  the  buyer  shall  have  a  reasonable  opportunity 

of  comparing  the  bulk  with  the  sample  : 
(c)  There  is  an  implied  condition  that  the  goods  shall  be  free  from  any  defect, 

rendering  them  unmerchantable,  which  would  not  be  apparent  on  reasonable 

examination  of  the  sample. 

A  sample  is  a  description  wanting  words.  It  is  an  appeal  to  the 
imderstanding  in  which  objective  illustration  takes  the  place  of,  or  supple- 
ments, written  or  spoken  language.  "  The  office  of  a  sample  is  to  present 
to  the  eye  the  real  meaning  and  intention  of  the  parties  with  regard  to  the 
subject-matter  of  the  contract,  which,  owing  to  the  imperfection  of 
language,  it  may  be  difficult  or  impossible  to  express  in  words "  (per  Ld. 
Macnaghtcn  in  Drummond,  1887,  12  App.  Ca.  284,  at  287).  In  one 
respect,  however,  tliere  is  a  marked  difference  between  description  and 
sample.  Description,  in  the  mercantile  sense,  usually  refers  to  the  name 
of  a  rfenus  to  which  well-known  attributes  are  attached.  If  the  thing 
furnislied  includes  these  attriljutes,  it  corresponds  with  the  description, 
although  within  the  description  itself  there  may  be  great  diversity  of 
quality.  Sam]ile,  on  the  other  hand,  includes  quality  as  well  as  the  more 
general  attributes.  The  section  takes  for  granted  that  the  goods  correspond 
witli  the  sample  in  hind,  but  it  provides  that  they  must  also  correspond 
with  tlie  sample  in  quality.  When  goods  are  sold  both  by  sample  and  l)y 
description,  sec.  14  (r.s.)  provides  that  they  must  correspond  with  the 
description  as  well  as  with  the  sample.  This  illustrates  a  converse  view  of 
the  relation  of  sample  to  description.  The  goods  may  agree  witli  the 
samjile  in  every  respect,  but  may  not  correspond  with  some  of  those 
attributes  included  in  the  name  or  phrase  by  which  the  yenus  is  described 


36 


SALE 


(sec  ^[ody,  1868,  4  Ex.  49).  In  the  case  of  specific  goods  (see  sec.  62  (1)), 
this  section  appears  to  alter  the  previous  law  both  of  England  and  Scotland. 
A  sample  of  specific  goods  is  often  given,  and,  before  the  Act,  it  reasonably 
inferred  an  luidertaking  that  the  bulk  corresponded  with  the  sample,  but 
the  seller  did  not  undertake,  nor  did  the  law  imply,  any  obligation  as  to 
merchantable  quality  {Parkinson,  1802,  2  East,  314).  The  section  provides 
that  to  constitute  a  sale  by  sample,  there  must  be  a  term  m  the  contract 
to  that  effect.  The  exhibition  of  a  sample  does  not  necessarily  make  it  a 
term  of  the  contract,  but,  on  the  other  hand,  such  a  term  may  be  implied 
from  the  circumstances  without  being  expressed.  Where  a  sample  is  made 
use  of,  it  is  often  difficult  to  determine  whether  or  not  it  enters  into  the 
constitution  of  the  contract  {e.g.  White,  1891,  18  E.  972).  As  a  term  of 
the  contract,  care  should  be  taken  for  the  preservation  and  identification 
of  the  sample  {Cheap,  1713,  Mor.  14238).  It  is  easy  to  suggest  that  a 
sample  has  been  tampered  with  {e.g.  Watt,  1829,  7  S.  372 ;  Lamb,  1891, 
9  Sh.  Ct.  Rep.  28). 

II.  Effects  of  the  Contract. 
Transfer  of  Property,  EisJc,  and  Title. 

16.  [Goods  must  be  ascertained.]  Where  there  is  a  contract  for  the  sale  of 
unascertained  goods  no  proiDerty  in  the  goods  is  transferred  to  the  buyer  unless  and 
until  the  goods  are  ascertained. 

17.  [Property  passes  when  intended  to  'pass!\  (1)  Where  there  is  a  contract  for  the 
sale  of  specific  or  ascertained  goods  the  property  in  them  is  transferred  to  the  buyer 
at  such  time  as  the  parties  to  the  contract  intend  it  to  be  transferred. 

(2)  For  the  purpose  of  ascertaining  the  intention  of  the  parties  regard  shall  be  had 
to  the  terms  of  the  contract,  the  conduct  of  the  parties,  and  the  circumstances  of 
the  case. 

18.  [Rules  for  ascertaining  Intention.']  Unless  a  diiferent  intention  appears,  the 
following  are  rules  for  ascertaining  the  intention  of  the  parties  as  to  the  time  at  which 
the  property  in  the  goods  is  to  pass  to  the  buyer. 

Rule  1.  Where  there  is  an  unconditional  contract  for  the  sale  of  specific  goods,  in 
a  deliverable  state,  the  property  in  the  goods  passes  to  the  buyer  when  the  contract 
is  made,  and  it  is  immaterial  whether  the  time  of  payment  or  the  time  of  delivery, 
or  both,  be  jjostponed. 
Rule  2.  Where  there  is  a  contract  for  the  sale  of  specific  goods  and  the  seller  is 
bound   to  do   something  to  the  goods,  for  the  purpose  of  putting  them  into  a 
deliverable  state,  the  property  does  not  pass  until  such  thing  be  done,  and  the 
buyer  has  notice  thereof. 
Rule  3.  Where  there  is  a  contract  for  the  sale  of  specific  goods  in  a  deliverable  state, 
but  the  seller  is  bound  to  weigh,  measure,  test,  or  do  some  other  act  or  thing  with 
reference  to  the  goods  for  the  purpose  of  ascertaining  the  price,  the  i^roperty  does 
not  pass  until  such  act  or  thing  be  done,  and  the  buyer  has  notice  thereof. 
Rule  4.  When  goods  are  delivered  to  the  buyer  on  approval  or  "  on  sale  or  return  " 
or  other  similar  terms  the  property  therein  passes  to  the  buyer  : — 

(«)  When  he  signifies  his  approval  or  acceptance  to  the  seller  or  does  any  other 

act  adopting  the  transaction  : 
Qj)  If  he  does  not  signify  his  approval  or  acceptance  to  the  seller  but  retains  the 
goods  without  giving  notice  of  rejection,  then,  if  a  time  has  been  fixed  for 
the  return  of  the  goods,  on  the  expiration  of  such  time,  and,  if  no  time  has 
been  fixed,  on  the  expiration  of  a  reasonable  time.     What  is  a  reasonable 
time  is  a  question  of  fact. 
Rule  5.  (1)  Where  there  is  a  contract  for  the  sale  of  unascertained  or  future  goods 
by  description,  and  goods  of  that  description  and  in  a  deliverable  state  are  uncon- 
ditionally appropriated  to  the  contract,  either  by  the  seller  with  the  assent  of  the 
buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the  property  in  the  goods 
thereupon  passes  to  the  buyer.     Such  assent  may  be  express  or  implied,  and  may 
be  given  either  before  or  after  the  appropriation  is  made. 
(2)  Where,  in  pursuance    of    the  contract,   the   seller  delivers  the  goods  to  the 
buyer  or  to  a  carrier  or  other  bailee  or  custodier  (whether  named  by  the  buyer 
or  not)  for  the  purpose  of  transmission  to  the  buyer,  and  does  not  reserve  the 


SALE  37 

riglit  of  disposal,  lie  is  deemed  to  have  unconditionally  appropriated  tlie  goods 
to  the  contract. 

19.  [Reservation  of  Eight  of  Disposal.]  (1)  Where  there  is  a  contract  for  the  sale  of 
specific  goods  or  where  goods  are  subsequently  appropriated  to  the  contract,  the  seller 
may,  by  the  terms  of  the  contract  or  appropriation,  reserve  the  riglit  of  disposal  of  the 
goods  until  certain  conditions  are  fulfilled.  In  such  case,  notwitlistandiug  the  delivery 
of  the  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee  or  custodier  for  the  purpose  of 
transmission  to  the  buyer,  the  property  in  the  goods  does  not  pass  to  the  buyer  until  the 
conditions  imposed  by  the  seller  are  fulfilled. 

(2)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are  deliverable  to 
the  order  of  the  seller  or  his  agent,  the  seller  is  ■prima  facie  deemed  to  reserve  the  riglit 
of  disposal. 

(3)  Where  the  seller  of  goods  draws  on  the  buyer  for  the  price,  and  transmits  the  bill 
of  exchange  and  bill  of  lading  to  the  buyer  together  to  secure  accejitance  or  payment  of 
the  bill  of  exchange,  the  buyer  is  bound  to  return  the  bill  of  lading  if  he  does  not 
honour  the  bill  of  exchange,  and  if  he  wrongfully  retains  the  bill  of  lading  the  property 
in  the  goods  does  not  pass  to  him. 

20.  [Risk  prima  facie  passes  u-ith  Property.']  Unless  otherwise  agreed,  the  goods 
remain  at  the  seller's  risk  until  the  property  therein  is  transferred  to  the  buyer,  but 
when  the  property  therein  is  transferred  to  the  buyer,  the  goods  are  at  the  buyer's  risk 
whether  delivery  has  been  made  or  not. 

Provided  that  where  delivery  has  been  delayed  through  the  fault  of  either  buyer  or 
seller  the  goods  are  at  the  risk  of  the  party  in  fault  as  regards  any  loss  which  might  not 
have  occurred  but  for  such  fault. 

Provided  also  that  nothing  in  this  section  shall  affect  the  duties  or  liabilities  of 
either  seller  or  buyer  as  a  bailee  or  custodier  of  the  goods  of  the  other  party. 

21.  [Sale  by  Person  not  the  Owner.]  (1)  Subject  to  the  provisions  of  this  Act,  where 
goods  are  sold  by  a  person  who  is  not  the  owner  thereof,  and  who  does  not  sell  them 
under  the  authority  or  with  the  consent  of  the  owner,  the  buyer  acquires  no  better  title 
to  the  goods  than  the  seller  had,  unless  the  owner  of  the  goods  is  by  his  conduct  precluded 
from  denying  the  seller's  authority  to  sell. 

(2)  Provided  also  that  nothing  in  this  Act  shall  affect — 

(a)  The  provisions  of  the  Factors  Acts,  or  any  enactment  enabling  the  ajiparent  owner 

of  goods  to  dispose  of  them  as  if  he  were  the  true  owner  thereof  ; 
(Jj)  The  validity  of  any  contract  of  sale  under  any  special  common  law  or  statutory 

l)ower  of  sale  or  under  the  order  of  a  Court  of  competent  jurisdiction. 

22.  [Market  Overt.]  (1)  Where  goods  are  sold  in  market  overt,  according  to  the 
usage  of  the  market,  the  buyer  acquires  a  good  title  to  the  goods,  provided  he  buys  them 
in  good  faith  and  without  notice  of  any  defect  or  want  of  title  on  the  part  of  the  seller. 

(2)  Nothing  in  this  section  shall  affect  the  law  relating  to  the  sale  of  horses. 

(3)  The  provisions  of  tliis  section  do  not  apply  to  Scotland. 

23.  [Sale  under  Voidable  Title.]  When  the  seller  of  goods  has  a  voidable  title 
thereto,  but  his  title  has  not  been  avoided  at  the  time  of  the  sale,  the  buyer  acquires  a 
good  title  to  the  goods,  provided  he  luiys  them  in  good  faith  and  without  notice  of  the 
seller'.s  defect  of  title. 

24.  [Revesting  of  Property  in  Stolen  Goods  on  Conviction  of  Ojjender.]  (1)  Where  goods 
have  been  stolen  and  the  offender  is  prosecuted  to  conviction,  the  property  in  the  goods 
80  stolen  revests  in  the  jierson  who  was  the  owner  of  the  goods,  or  his  personal  repre- 
sentative, notwithslaniliiig  any  intermediate  dealing  with  tlicni,  whether  by  sale  in 
market  overt  or  otherwise. 

(2)  Notwithstanding  any  enactment  to  the  contrary,  where  goods  have  been  obtained 
by  fraud  or  other  wrongful  means  not  amounting  to  larceny,  the  ])ro]ierty  in  such  goods 
shall  not  revest  in  the  person  who  was  the  owner  of  the  gocjds,  or  his  personal  representa- 
tive, by  reason  only  of  tlie  conviction  of  the  offender. 

(3)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

25.  [Seller  or  Bayer  in  Possession  after  Sale.]  (f )  Where  a  person  having  sold  goods 
continues  or  is  in  possession  of  the  goods,  or  of  the  documents  of  title  to  the  goods,  the 
delivery  or  transfer  by  that  person,  or  by  a  mercantile  agent  acting  for  him,  of  the  goods 
or  documents  of  title  under  any  sale,  pledge,  or  other  disposition  thereof,  to  any  jjcrson 
receiving  the  same  in  good  faith  and  without  notice  of  the  previous  sale,  shall  have  the 
same  effect  as  if  the  jierson  making  the  delivery  or  transfer  were  expressly  authorised  by 
the  owner  of  the  goods  to  make  the  .same. 

(2)  Where  a  person  having  bought  or  agreed  to  buy  goods  obtains,  with  the  consent 
of  tlie  seller,  possession  of  the  goods  or  the  documents  of  title  to  the  goods,  the  delivery 
or  transfer  by  that  person,  or  by  a  mercantile  agi-iit  arting  for  him,  oi  the  goods  or  (locu- 
ments  of  title,  under  any  sale,  pledg*-,  or  other  disposition  thereof,  to  any  person  receiTing 


38  SALE 

the  same  iii  good  faith  and  without  notice  of  any  lien  or  other  right  of  the  original  seller 

respect  of  the  goods,  shall  have  the  same  effect  as  if  the  person  making  he  delivery  or 

transfer  were  a  niercantile  agent  in  possession  of  the  goods  or  documents  of  title  with  the 

consent  of  the  owner.  „  ,         ,  •  •     ^i, 

(3)  In  this  section  the  term  "mercantile  agent"  has  the  same  meaning  as  m  the 

'  26  IE  fed  of  TFrits  of  Execution.]  (1)  A  writ  oi  fieri  facias  or  other  writ  of  execution 
a^iin^t  <^o6ds  shall  hind  the  property  in  the  goods  of  the  execution  debtor  as  from  the 
lime  wht'u  the  writ  is  delivered  to  the  sheriff  to  he  executed  ;  and,  for  the  better  mani- 
festation of  such  time,  it  shall  be  the  duty  of  the  sheriff,  without  fee,  upon  the  receipt 
of  any  such  writ  to  endorse  upon  the  back  thereof  the  hour,  day,  month,  and  year  when 

he  received  the  same.  ,       .  ,  ,  n  •     j  i 

Provided  that  no  such  writ  shall  prejudice  the  title  to  such  goods  acquired  by  any 
person  in  good  faith  and  for  valuable  consideration,  unless  such  person  had  at  the  time 
when  he  acquired. his  title  notice  that  such  writ  or  any  other  writ  by  virtue  ot  which 
the  goods  of  the  execution  debtor  might  be  seized  or  attached  had  been  delivered  to  and 
remained  unexecuted  in  the  hands  of  the  sheriff.  ,      .  ,     ,  , 

(2)  In  this  section  the  term  "  sheriff  "  includes  any  officer  charged  with  the  enforce- 
ment of  a  writ  of  execution. 

(3)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

The  general  effect  of  the  Act  upon  the  law  of  Scotland  in  regard  to 
the  transfer  of   the   property  of  goods  has   been   already  noticed  (sujjra, 
pp.  4,   25).     In   the   above   sections   the   rules   are   detailed.     Before   a 
valid  'transfer   can   be   made   from   seller   to   buyer,  the   goods   must   be 
"ascertained,"  i.e.  made  specific  according  to  the  definition  of  "specific" 
in  sec.  62  (1).     Non-specific  goods  are  of   two   kinds:   (1)  they  may   be 
"  future  goods,"  i.e.  "  goods  to  be  manufactured  or  acquired  by  the  seller 
after  the  making  of  the  contract  of  sale"  (ss.  5  (1)  and  62  (1));  or  (2) 
they  may  be  goods  m  esse,   and    belonging   to   the   seller,  but  requuing 
to  be  selected   from  a  larger   number,  or   taken  from  bulk.     The   words 
"ascertained"   and   "unascertained"  in  sees.   16   and   17  refer  chiefly,  if 
not  solely,  to  the  latter  kind  of  non-specific  goods,  while  the  term  "  appro- 
priated" in  sec.  18,  rule  5,  is  applied  to  both.     Eules  2  and  3  of  sec  18  are 
examples  of  non-specific  goods  requiring  to  be  "ascertained"   before  the 
property  passes  to  tlie  buyer.     Possibly,  in   sec.  52,  "ascertained"  takes 
a  wider  meaning,  being  used  as  synonymous  with  specific,  and  therefore 
opposed  to  non-specific  in  both  the  senses  above  mentioned.     "Executory 
agreement "  is  another  form  of  words  which  may  be  applied  to  either  kind 
of  non-specific  goods,  but  it  is  usually  and  properly  associated  with  "  future 
goods  "  rather  than  with  "  unascertained  goods  "  in  the  narrower  sense. 

The  essence  of  the  change  introduced  by  the  Act  into  the  law  of 
Scotland,  so  far  as  regards  transfer  of  property,  is  that  while  formerly 
the  property  in  specific  goods  did  not  pass  to  tlie  buyer  until  delivery,  it 
now  passes  according  to  the  intention  of  parties  irrespective  of  delivery 
(ss.  17,  18).  The  former  law  of  Scotland  was  based  on  the  maxim  that 
"  the  property  of  moveables  is  presumed  from  possession "  (Bell,  Com.  i. 
178).  In  the  form,  however,  of  reputed  ownership,  the  law  went  a  step 
further  than  a  mere  presumption,  which  may  be  overcome  by  contrary 
proof  (Bell,  Frin.  s.  1314),  and  which  can  only  be  of  importance  as 
between  competing  parties,  neither  of  whom  has  a  valid  independent 
title.  EcputeJ  ownership,  where  it  was  recognised,  created  a  right  in 
favour  of  the  creditors  of  the  possessor  which  was  not  affected  by  proof 
of  a  latent  contrary  right.  But  the  strict  theory  of  reputed  ownership 
was  subject  to  various  modifications,  and  recent  relaxations  have  induced 
the  statement  that  the  doctrine  "  is  no  longer  of  much  importance "  (p.er 
Ld.  J.-Cl.  Moncreiff  in  RoUrtsons,  1882,  9  R  772,  at  778).  This  result 
requires  careful   consideration  in  view   of   tlie   extensive  change  in   the 


SALE  39 

Scottish  law  of  possession  introduced  by  the  present  Act.  Thus  it  may 
be  doubted  if,  in  consequence  of  the  new  doctrine  of  the  passing  of  the 
property  by  the  contract  without  change  of  possession,  the  just  rights  of 
the  general  creditors  of  an  insolvent  are  sufficiently  protected  by  the 
ordinary  common  law  rules,  or  by  the  provisions  of  sec.  25  (2).  The  last- 
mentioned  provisions  form  a  partial  return  to  the  doctrine,  but  they  only 
relate  to  the  case  of  a  particular  purchaser  or  pledgee.  It  is  for  considera- 
tion whether  it  may  not  be  expedient  to  extend  to  Scotland  the  statutory 
reputed  ownership  which  for  centuries  has  formed  part  of  the  English 
bankruptcy  code  (see  46  &  47  Vict.  c.  52,  s.  44 ;  but  on  the  other  hand  see 
objections  to  the  English  rule  by  Sir  George  Jessel  in  the  debate  in  the 
House  of  Commons  on  the  English  Bankruptcy  Bill  of  1869,  Hansard, 
3rd  ser.  vol.  194,  p.  793,  and  vol.  195,  p.  148).  It  has  been  suggested 
(see  Possession)  that  general  creditors  are  protected  by  the  fact  that 
reputed  ownership  may  be  attached  to  a  jus  ad  rem  as  well  as  to  a  jus 
in  re  {M'Bain,  1881,  8  E.  H.  L.  106,  per  Ld.  Blackburn),  but  a  seller 
retaining  possession  of  goods  the  property  in  which  has  passed  to  the 
buyer,  has  neither  jus  ad  rem  nor  jus  in  re.  He  has  no  right  whatever  iu 
or  connected  with  the  goods  beyond  a  bare  lien  for  the  price  if  it  happens 
to  be  mipaid. 

A  transfer  of  ])roperty  without  transfer  of  possession  does  not  apply  to 
"  any  transaction  iu  the  form  of  a  contract  of  sale  which  is  intended  to 
operate  by  way  of  mortgage,  pledge,  charge,  or  other  security"  (s.  61  (4)). 
The  law  of  Scotland  as  affecting  a  security  in  the  form  of  a  sale  has  been 
much  disturbed  of  recent  years  and  is  not  yet  well  settled.  (See  Brown, 
Sale  of  Goods  Act,  276  scq.)  But  the  above  provision  seems  to  remove  the 
doubt  suggested  by  the  judgments  in  M'Bain,  1881,  8  E.  H.  L.  106,  and 
Liddell,  1893,  20  E.  089.  The  result  is  that  any  transaction  whicli  is  in 
substance  a  security  though  iu  form  a  sale,  is  invalid  without  actual 
delivery  of  the  subject  of  the  security  {Rohertson,  1896,  24  E.  120  ;  Kufeke, 
1898,  14  Sh.  Ct.  Eep.  277).  In  England,  the  property  does  not  pass,  in  the 
case  of  a  security,  by  the  mere  force  of  the  contract  without  delivery,  but 
the  transaction  may  be  made  eflectual  under  very  stringent  conditions  by 
means  of  registration  uuder  the  Bills  of  Sale  Acts.  These  Acts,  however, 
do  not  apply  to  Scotland,  and  there  are  no  similar  provisions  iu  Scottish 
law.  In  this  connection  the  case  of  unfinished  ships  is  peculiar.  Iu 
England,  the  y^roperty  may  pass  to  a  pledgee  without  the  ship  being  taken 
from  the  stocks  of  the  builder,  and  without  any  other  form  of  delivery  or 
registration  {Hudjkin,  1875,  20  Eq.  746).  The  same  was  held  to  be  the  law 
of  Scotland,  upon  the  authority  of  the  old  case  of  Simpson,  1786,  Mor.  14204, 
which  was  the  basis  of  the  Court  of  Session  judgnu'ut  in  Jll'llain  {us.).  But 
the  House  of  Lords,  in  affirming  31' Bain,  founded  their  judgment  upon  the 
terms  of  the  first  section  of  the  Scottish  Mercantile  Law  Amendment  Act, 
1S5G,  which  is  repealed  by  the  present  Act  (s.  60).  Doubts  were  cast  on 
the  alleged  common  law  of  Scotland  and  upon  the  case  of  Simj^son  (sec 
M'Bain,  per  Ld.  Chan.  Selborne,  8  E.  H.  L.,  at  109,  and  Ld.  Watson,  at  116  ; 
also  Scath,  1886,  13  E.  H.  L.  57,  per  Ld.  Watson,  at  64).  If  these  doubts 
are  justified,  the  result  is  that  in  Scotland  sliips  are  like  other  goods,  so 
that  since  the  repeal  of  the  Act  of  1856  no  clfi^ctual  security  can  be  given 
over  a  ship  on  the  stocks  witiiout  actual  change  of  possession.  On  this 
supposition  a  diversity  is  created  by  the  present  Act  between  the  law  of 
Scotland  and  that  of  England,  and  Scottish  shi]»build('rs  are  ]ilarcd  in  a 
different  and  perhaps  less  favourable  position  than  their  English  brethren. 
There  are,  however,  weighty  reasons,  which  cannot  be  entered  upon  here. 


40  SALE    .' 

teiKlinc-  to  support  the  view  of  the  Scottish  Court  in  M'Bain  {v.s.)..  It  is  sub- 
mittecfthat  the  true  principle  of  the  common  law  both  of  Scotland  andEngland 
in  re<nird  to  ships  and  machinery  in  course  of  construction  and  practically 
immo'^veable,  is  that  the  property  passes  by  means  of  constructive  delivery, 
which  takes  effect  upon  payment  of  an  instalment  of  the  price  in  the  case 
of  a  sale,  and  upon  payment  of  an  advance  in  the  case  of  a  security. 

The  law  as  to  the  passing  of  the  risk  is  not  altered  by  the  Act  (s.  20 ; 
Brown,  Sale  of  Goods  Act,  107  scq.).  The  circumstances  which  m  Scotland, 
prior  to  the  Act,  sutficed  to  transfer  the  risk  are  identical  with  those  which 
in  England  passed,  and  still  continue  to  pass,  the  property  {Seath,  1886,  13 
l\  H^'l  57).  In  this  view  the  Scottish  cases  of  Hansen,  1859,  21  D. 
^i-2;' Anderson,  1870,  9  M.  122;  and  Walker,  1873,  11  M.  906,  which 
related  to  the  passing  of  the  risk,  may  now  be  taken  to  illustrate  also  the 
passing  of  the  property.  Hansen  (v.s.)  formed  a  negative  instance  of  rules 
2  and  3  of  sec.  18,  it  being  found  that  nothing  was  wanting  either  to  put 
the  goods  into  a  deliverable  state  or  to  ascertain  the  price.  Anderson  (v.s.) 
illustrates  rule  2,  the  question  being  whether  the  goods  were  made  sp^ecific 
and  put  into  a  deliverable  state  by  separation  from  the  bulk ;  while  Walker 
(v.s.)  illustrates  rule  3,  it  being  held  that  the  price  could  not  be  ascertained 
until  the  subject  was  weighed  on  delivery. 

The  general  effect  of  sec.  19,  as  to  the  reservation  by  the  seller  of  a 
right  of  disposal,  is  to  give  statutory  sanction  to  conditions  suspensive  of 
the  passing  of  the  property.  In  Scotland,  before  the  Act,  such  conditions 
were  necessarily  attaclied  to  delivery,  as  it  was  only  by  delivery  that  the 
property  passed ;  now,  however,  the  conditions  must,  in  many  cases,  be 
attached  to  the  contract  itself,  otherwise,  although  the  goods  may  not  have 
left  the  seller's  custody,  the  property  in  them  may  have  passed  to  the  buyer 
beyond  recall.  The  second  subsection  restricts  the  ordinary  effect  of  a  bill 
of  lading  in  passing  the  property,  while  the  third  lays  down  the  rule  in 
cases  where  a  bill  of  lading  and  a  bill  of  exchange  for  acceptance  have  been 
transmitted  to  the  buyer  at  the  same  time.  The  rule  referred  to  was 
established  in  Scotland  before  the  Act  (Brandt,  1876,  3  E.  375 ;  but  see 
Clarke,  1885,  12  R.  1035).  The  rule  in  England  prior  to  the  Act  was  not 
well  established,  and  is  not  directly  supported  by  Shepherd,  1871,  5  H.  L. 
116,  where  the  circumstances  were  special.  In  Shepherd,  the  obligation  to 
return  the  bill  of  exchange  accepted  by  the  buyer  was  rested  rather  upon 
direct  contract  than  upon  a  condition  precedent  to  the  property  vesting. 
In  terms  of  the  Act,  the  law  of  Scotland  and  that  of  England  are  now  the 
same. 

Sees.  21,  23,  and  25  deal  with  transfer  of  title.  No  title  can  pass 
from  the  true  owner  of  the  goods  without  his  consent,  express  or  implied, 
but  the  law  in  certain  circumstances  implies  the  consent  of  the  true  owner 
to  a  sale  by  an  apparent  owner.  Sec.  25  in  its  two  subsections  reproduces 
in  almost  identical  terms  sees.  8  and  9  of  the  Factors  Act,  1889,  made 
applicable  to  Scotland  by  the  Factors  (Scotland)  Act,  1890.  The  section 
embodies  a  species  of  reputed  ownership,  but,  as  already  suggested,  it  only 
protects  special  pledgees  and  sub-buyers,  and  affords  no  relief  to  the  general 
creditors  of  the  true  owner  of  the  goods.  The  second  subsection  is 
illustrated  by  cases  of  hire-purchase,  to  which  reference  has  been  already 
made  (supra,  pp.  5,  30).  It  does  not  confer  a  title  on  an  indorsee  of  a  bill  of 
lading  where  the  indorsation  is  in  breach  of  sec.  19  (3)  (Cahn,  1898,  79 
L.  T.  N.  S.  55).  An  opinion  has  l)een  expressed  in  the  Sheriff  Court  that  the 
section  does  not  apply  where  the  subject  is  carried  off  by  the  diligence  of 
the  buyer's  creditors  (Maxivell,  1896,  12  Sh.  Ct.  Eep.  351),  but  the  question 


SALE  41 

requires  further  consideration.  It  may  be  argued  that  one  who  by  his 
conduct  exposes  property  to  the  diligence  of  creditors,  makes  a  "  disposition 
thereof "  in  terms  of  the  section ;  and  that  where  the  creditors  sell  to  a 
person  who  buys  in  good  faith  and  without  notice,  they  exercise  their 
debtor's  rights,  and,  as  his  agents,  give  the  buyer  as  good  a  title  as  the 
debtor  himself  could  have  conferred. 

The  effect  of  the  transfer  of  property  and  title  upon  sub-sales  is  noticed 
in  connection  with  delivery  (v.i.). 

III.  Performance  of  the  Contract. 

27.  [Duties  of  Seller  and  Buyer.]  It  is  the  duty  of  the  seller  to  deliver  the  goods,  and 
of  the  buyer  to  accept  and  pay  for  them,  in  accordance  with  the  terms  of  the  contract  of 

28.  [Paymmt  and  Delivery  are  Concurrent  Conditions.']  Unless  otherwise  agreed, 
delivery  of  the  goods  and  payment  of  the  price  are  concurrent  conditions,  that  is  to  say, 
the  seller  must  be  ready  aiid  willing  to  give  possession  of  the  goods  to  the  buyer  m 
exchange  for  the  price,  and  the  buyer  must  be  ready  and  willing  to  pay  the  price  in 
exchange  for  possession  of  the  goods. 

29.  [Rules  as  to  Delivery.]  (1)  Whether  it  is  for  the  buyer  to  take  possession  of  the 
goods  or  for  the  seller  to  send  them  to  the  buyer  is  a  question  depending  in  each  case  on 
the  contract,  express  or  implied,  between  the  parties.  Apart  from  any  such  contract, 
express  or  implied,  the  place  of  delivery  is  the  seller's  place  of  business,  if  he  have  one, 
and  if  not,  his  residence  :  Provided  that,  if  the  contract  be  for  the  sale  of  specific  goods, 
which  to  the  knowledge  of  the  parties  when  the  contract  is  made  are  in  some  other  place, 
then  that  place  is  the  place  of  delivery. 

(2)  Where  under  the  contract  of  sale  the  seller  is  bound  to  send  the  goods  to  the 
buyer,  but  no  time  for  sending  them  is  fixed,  the  seller  is  bound  to  send  them  M-ithin  a 
reasonable  time. 

(3)  Where  the  goods  at  the  time  of  sale  are  in  the  possession  of  a  third  person,  there 
is  no  delivery  by  seller  to  buyer  unless  and  until  such  third  person  acknowledges  to  the 
buver  that  he  holds  the  goods  on  his  behalf  ;  provided  that  nothing  in  this  section  shall 
affect  the  operation  of  the  issue  or  transfer  of  any  document  of  title  to  goods. 

(4)  Demand  or  tender  of  delivery  may  be  treated  as  inelfectual  unless  made  at  a 
rea.sonable  hour.     What  is  a  reasonable  hour  is  a  question  of  fact. 

(5)  Unless  otherwise  agreed,  the  expenses  of  and  incidental  to  putting  the  goods 
into  a  deliverable  state  must  be  borne  by  the  seller. 

30.  [Delivery  of  Wromj  Quantity.]  (1)  Where  the  seller  delivers  to  the  buyer  a 
quantity  of  goods  less  than  he  contracted  to  sell,  the  buyer  may  reject  them,  but  if  the 
buver  accepts  the  goods  so  delivered  he  must  pay  for  them  at  the  contract  rate. 

■(•J)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  larger  than  lie  con- 
tracted to  sell,  the  buyer  luav  accept  the  goods  included  in  the  contract  and  reject  the 
rest,  or  he  may  reject  the  "whole.  If  the  buyer  accepts  the  whole  of  the  goods  so 
delivered  he  mu.st  pav  for  tliem  at  the  contract  rate. 

(:5)  Where  the  seller  delivers  to  the  buyer  the  goods  he  contracted  to  sell  mixed 
with  goods  of  a  dilferent  descri[.tion  not  included  in  the  contract,  tlie  buyer  may  accept 
the  goods  which  are  in  accordance  with  the  contract  and  reject  the  rest,  or  he  may  reject 

the  whole.  ■,  ■  ^ 

(4)  The  provisions  of  this  section  are  subject  to  any  usage  of  trade,  special  agreement, 
or  course  of  dealing  between  the  parties. 

31.  [Instalment  Deliveries.]  (1)  Unless  otherwise  agreed,  the  buyer  of  goods  is  not 
bound  to  accept  delivery  thereof  by  instalments. 

(2)  Where  there  is  a  contract  for  the  sale  of  goods  to  be  delivered  Ijy  stated 
instalments,  which  are  to  be  separately  paid  for,  and  the  seller  makes  defective 
deliveries  in  respect  of  one  or  more  instalnieuts,  or  the  buyer  neglects  or  refuses  to  take 
delivery  of  or  pay  for  one  or  more  instalments,  it  is  a  question  in  each  case  depending 
on  the  terms  of  the  contract  and  the  circumstances  of  the  case,  whether  the  breach  of 
contract  is  a  repudiation  f.f  tlie  wliole  contract  or  whether  it  is  a  severable  breach 
giving  rise  to  a  claim  for  compensation  but  not  to  a  right  to  treat  the  wliole  contract 
as  reputliated.  n      • 

32.  [Delivery  to  Carrier.]  (1)  Where,  in  pursuance  of  a  contract  of  sale,  the  seller  13 
authorised  or  required  to  send  the  goods  to  the  buyer,  delivery  of  the  goods  to  a 
carrier,  wliether  named  by  the  buyer  or  not,  for  the  pur])ose  of  transmission  to  the 
buyer  is  primu  facie  deemed  to  be  a  delivery  of  the  goods  to  the  buyer. 


42  SALE 

(■->)  Unless  otherwise  ail  tliorisedl.y  the  buyer,  the  seller  must  make  such  contract 
uith  the  carrier  on  behalf  of  the  buyer  as  may  be  reasonable  having  regard  to  the 
nature  of  the  -oods  and  the  other  circumstances  of  the  case.     If  the  seller  omit  so  to  do 
and  the  i^oods  are  lost  or  damaged  in  course  of  transit,  the  buyer  may  decline  to  treat 
tlie  deli\  cry  to  the  carrier  as  a  delivery  to  himself,  or  may  hold  the  seller  responsible 

m  ^  '^'"'gJ-^J^^g  otherwise  agreed,  where  goods  are  sent  by  the  seller  to  the  buyer  by  a 
route  involving  sea  transit,  under  circumstances  in  which  it  is  usual  to  insure,  the 
'.clh'r  must  give  such  notice  to  the  buyer  as  may  enable  him  to  insure  them  during 
their  sea  transit,  and,  if  the  seller  fails  to  do  so,  the  goods  shall  be  deemed  to  be  at  his 
risk  during  such  sea  transit.  .i         ti        c         i 

33  (Risk  u-here  Goods  are  delivered  at  Distant  Place.]  \\  here  the  seller  of  goods 
a^ree^  to  deliver  them  at  his  own  risk  at  a  place  other  than  that  where  they  are  when 
sold,  the  liuver  must,  nevertheless,  unless  otherwise  agreed,  take  any  risk  of  deteriora- 
tion in  tlie  goods  necessarily  incident  to  the  course  of  transit.  ■,,.!, 

34.  [Baijer's  Right  of  examining  the  Goods.]  (1)  Where  goods  are  delivered  to  the 
buyer,  which  he  has  not  previously  examined,  he  is  not  deemed  to  have  accepted  them 
unless  and  until  he  has  had  a  reasonable  opportunity  of  examining  them  for  the 
purpose  of  ascertaining  whether  they  are  in  conformity  with  the  contract. 

(2)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery  of  goods  to  the  buyer, 
he  is  bound,  on  request,  to  afford  the  buyer  a  reasonable  opportunity  of  examining  the 
goods  for  the  purpose  of    ascertaining  whether    they  are  in  conformity  with  the 

35.  '[Acceptance.]  The  Ijuyer  is  deemed  to  have  accepted  the  goods  when  he 
intimates  to  the  seller  that  he  has  accepted  them,  or  when  the  goods  have  been 
delivered  to  him,  and  he  does  any  act  in  relation  to  them  which  is  inconsistent  with 
the  ownership  of  the  seller,  or  when  after  the  lapse  of  a  reasonable  time,  he  retains  the 
goods  without  intimating  to  the  seller  that  he  has  rejected  them. 

36.  [Buyer  not  hound  to  return  Rejected  Goods.]  Unless  otherwise  agreed,  where  goods 
are  delivered  to  the  buyer,  and  he  refuses  to  accept  them,  having  the  right  so  to  do,  he 
is  not  bound  to  return  them  to  the  seller,  but  it  is  sufhcient  if  he  intimates  to  the 
seller  that  he  refuses  to  accept  them. 

37.  [Liability  of  Buyer  for  neglecting  or  refusing  Delivery  of  Goods.]  When  the-selleris 
ready  and  willing  to  deliver  the  goods,  and  requests  the  buyer  to  take  delivery,  and 
the  buyer  does  not  within  a  reasonable  time  after  such  request  take  delivery  of  the 
goods,  he  is  liable  to  the  seller  for  any  loss  occasioned  by  his  neglect  or  refusal  to  take 
delivery,  and  also  for  a  reasonable  charge  for  the  care  and  custody  of  the  goods. 
Provided  that  nothing  in  this  section  shall  affect  the  rights  of  the  seller  where  the 
neglect  or  refusal  of  the  buyer  to  take  delivery  amounts  to  a  repudiation  of  the 
contract. 

The  above   sections  relate   to   the   seller's  duty  of  delivery  and   the 

buyer's  duty  of  acceptance  and  payment.     "  Delivery  "  means  the  voluntary 

transfer    of   possession   from   one   person    to    another   (s.    62    (1)).      See 

Delivery  of  ^Moveables.     The  rules  for  effecting  delivery  are  laid  down 

in  sec.  29.     As  to  sj)ecific  implement,  see  Skivart,  1890,  17  R.  H.  L.  1,  and 

supra,  p.    23.     In    certain    circumstances   the   seller   will    be   allowed   a 

reasonable  time  to  perform  his  obligation  (Forbes,  1885,  12  E.  1065).     If 

actual  delivery  is  not  contemplated  and  the  contract  is  one  for  differences 

only,  it  may  be  treated  as  a  wager  not  enforceable  at  law  (Hei7nan,  1885,  12 

E.  40G  ;  see  also  ClarJc,  1819,  6  Pat.  422,  per  Ld.  Chan.  Eldon,  at  429).     The 

rights  of  parties  are  often  alfected  by  the  question  whether  credit,  however 

short,  was  intended.     If  in  a  sale  for  ready  money  the  buyer,  by  error  or 

fraud,  receives  the  goods  without  making  payment  of  the  price,  no  property 

passes  to  him  {BisJio}),  1819,2  B.  &  Aid.  329  note;  Bell,  Com.  i.   258; 

Watt,  1846,  8  D.  529);  but  if  credit  is  once  allowed,  though  obtained  by 

misrepresentation  or  concealment,  the  goods  are  the  property  of  the  buyer 

and  may  be  validly  transferred  by  him  to  a  third  party,  or  taken  possession 

of  by  his  general  creditors  {Pdchmoncl,  1854,  16  D.  403).     The  delivery 

may,  according  to   circumstances,   be   actual   or   constructive.      "  Where 

goods  are  ponderous  and  incapable   of   being   handed  over   from   one    to 

another,  there  need  not  be  an  actual  delivery,  but  it  may  be  done  by  that 


SALE  43 

which  is  tantamount,  such  as  the  deUvery  of  the  key  of  the  warehouse  in 
which  the  goods  are  lodged,  or  by  the  dehvery  of  other  indicia  of  property" 
(per  Ld.  Kenyon  in  Chcrplin,  1800,  1  East,  192).  But  such  dehvery  must 
be  real,  in  the  sense  of  giving  the  buyer  "  access  to  the  actual  possession  of 
the  subject  and  power  over  it,  while  the  seller  is  excluded  "  (Bell,  Com.  i. 
186).  The  law  of  Scotland  has  never  favoured  mere  symbolical  delivery  of 
goods,  and  the  Courts  have  denied  effect  to  any  writmg  or  ceremony 
intended  to  transfer  th6  property  without  change  of  custody.  "  A  written 
instrument  of  possession  will  not  pass  the  property  of  moveables  "  (per  Ld. 
Neaves  in  Anderson,  1866,  4  M.  765,  at  771,  quoted  and  approved  by  Ld. 
Watson  in  Seath,  1886,  13  E.  H.  L.  57,  at  67.  See  also  Corhet,  1666,  Mor. 
10602:  Kcr,  1695,  Mor.  9122;  Carsc,  1714,  Mor.  9125;  Henrij,  1822,  1  S. 
399  ;  Frascr,  1830,  8  S.  982 ;  Stiwn,  1878, 15  S.  L.  E.  422). 

Sec.  29  (3)  deals  with  goods  which  at  the  time  of  the  sale  are  in  the 
possession  of  a  third  person,  e.g.  a  warehouse-keeper.  In  addition  to  the 
intimation  to  the  custodier,  which  by  Scots  law  was  always  necessary  to 
transfer  the  property  where  the  custody  itself  was  not  changed,  the  section 
provides  that  there  is  no  delivery  unless  and  until  the  third  person 
achioivledges  to  the  buyer  that  he  holds  the  goods  on  his  behalf.  The  law 
of  Scotland  before  the  Act  seems  to  have  been  satisfied  with  intimation  to 
the  custodier,  irrespective  of  any  consent  on  his  part.  "Where  delivery  was 
duly  given  in  this  way,  the  seller  was  completely  divested,  and  had  not  even 
a  lien  for  the  price  in  a  question  with  a  sub-buyer  {Tod,  1  Feb.  1809, 
F.  C).     See  generally  on  the  subject  of  dehvery,  Deliveey  of  Moveables. 

Goods  iu  the  hands  of  a  third  person  may  Ije  the  subject  of  a  succession 
of  sales  without  any  actual  change  of  custody.  If  actual  or  constructive 
delivery  has  been  given  to  the  buyer,  a  new  sale  by  him  to  a  second  buyer 
is  independent  of  the  former  sale ;  but  if  the  first  buyer  has  not  obtained 
delivery,  the  transaction  between  him  and  the  second  buyer  is  a  "  sub-sale," 
and  has  dillerent  legal  effects.  The  term  "  sub-sale  "  denotes  any  sale  by  a 
buyer  to  a  tliird  person  of  a  subject  (whether  heritable  or  moveable)  of 
which  delivery  has  not  yet  been  received  from  the  original  seller.  "Whether 
in  a  sub-sale  of  goods  the  property  passes  b}'  the  contract  to  the  sub-buyer 
now  depends  upon  (1)  whether  it  was  vested  in  the  first  buyer  at  the  date 
of  the  sub-sale,  and  (2)  assuming  it  to  have  been  so  vested,  whether  the 
parties  to  the  sub-sale  intended  it  to  pass  by  the  contract  to  tbc  second 
buyer.  If  the  property  has  passed  by  the  sub-sale,  a  direct  relation  is 
established  Ijctween  the  original  seller  and  the  second  buyer,  the  former 
being  obHged  to  deliver  to  the  latter  upon  payment  of  the  price,  and 
without  power  to  retain  for  any  indebtedness  either  of  the  first  or  second 
buyer  on  general  account  (see  sec.  47  as  to  unpaid  seller's  rights  in  com- 
petition with  sub-sale  or  pledge  by  buyer).  Under  the  former  law  of 
Scotland  the  question  was  one  of  delivery  only ;  and  where  goods  were  in  a 
warehftusc,  notliing  but  actual  or  constructive  dehvery  to  tlie  first  buyer, 
and  similar  actual  or  constructive  delivery  by  the  first  to  the  second  buyer, 
could  pass  the  property.  The  point,  therefore,  in  the  case  of  goods  in  a 
warehouse,  was  as  to  the  requisites  of  constructive  delivery.  Prior  to  1849, 
where  such  delivery  was  denied,  it  was  erroneously  designated  by  the 
Court  of  Session  "Kto])pagc  in  transitu"  (r//.  Malhir^  Tr.,  1804,  Mor. 
14226  ;  Maxjcell,  1830,  8  S.  618);  but  in  M'j'ytcaa  (6  Bell's  App.  340)  the 
House  of  Lords  pointed  out  that  stoppage  in  transitu  was  a  special  remedy 
involving  previous  delivery  and  passing  of  the  proi)erty,  whereas  in  the 
cases  referred  to  there  had  been  no  delivery,  and  the  property  liad  not 
passed.     In  most  cases,  tlic  question  whether  or  not  constructive  delivery 


44  SALE 

of  goods  in  a  warehouse  has  been  given  depends  upon  the  legal  effect  of  a 

dociiment  of  title.     Sec.  29  (3)  expressly  reserves  the  eftect  of  documents 

of  title,   and   these   documents   are  also   specially   favoured   in   sees.    25 

and  47.     The  ellect  of  documents  of  title  upon  stoppage  in  transitu,  and 

upon  the  lien  of  an  unpaid  seller  for  the  price,  is  expressed  in  the  proviso 

attached  to  sec.  47 ;  and  their  effect  upon  a  sub-sale  of  goods  in  a  warehouse, 

although  in  some  degree  left  to  inference,  seems  wider  than  the  law  of 

Scotland  prior  to  the  Act   (see  Document  of  Title;  Delivery-Oeder). 

The   statutory  definition  or  explanation  of   "  document  of  title "  does  not 

extend  beyond  the  purposes  of  the  two  Acts  in  which  it  is  expressed.     In 

the  Factors  Act  it  is  confined  to  the  dealings  of  mercantile  agents  {Inglis, 

1898,  25  K.  H.  L.  70),  and  in  the  Sale  of  Goods  Act  it  does  not  apply  to 

securities  (s.   Gl  (4)).     The  effect  of  the  definition   upon  the  delivery  of 

warehoused  goods  will  therefore  depend  upon  the  purpose  of  the  transfer. 

If  the  transfer  is  intended  as  a  security,  the  rule  expressed  in  Anderson, 

18G6,  4  M.  765,  will  probably  be  continued ;  but  if  it  is  an  actual  sale,  the 

cases  of  Maihieson,  1854,  17  D.  274,  and  Distillers  Co.,  1889,  16  K.  479, 

cannot  now  be  relied  on  as  authorities.     It  is  to  be  observed  that  although 

"bill  of  lading"  is  included  in  the  statutory  definition  of  "document  of 

title,"   such  a  document   stands   in   a   higher  position    than    the    others 

mentioned  in  the  definition  (Bills  of  Lading  Act,  1855,  s.  1 ;  see  also  Inglis, 

1898,  25  E.  H.  L.  70,  per  Ld.  Watson,  at  74). 

The  buyer's  duties  are  acceptance  and  payment,  but  neither  of  these  is 
obligatory  if  the  seller  fails  to  deliver  in  terms  of  the  contract.  Delivery 
of  a  wrong  quantity  gives  the  buyer  a  right  of  rejection,  as  expressed  in  sec. 
30.  So,  also,  delivery  of  an  inferior  quality  permits  the  buyer  to  reject  in 
terms  of  sec.  11  (2).  In  either  case  the  buyer  may  waive  his  right,  but  the 
consequences  are  different.  In  regard  to  quantity  the  contract  is  upheld  in 
its  integrity,  and  the  buyer,  if  he  retain  the  goods,  must  pay  the  contract 
price  (s.  30).  In  respect  of  quality,  however,  the  buyer,  if  he  retain  the 
goods,  may  yet  claim  damages  for  a  breach  (s.  11  (2)),  in  diminution  or 
extinction  of  the  price  (s.  53).  As  regards  quality  in  Scotland,  if  the 
buyer's  option  of  rejection  is  properly  exercised,  the  seller  is  in  no  better 
position  than  if  he  had  failed  by  non-delivery.  He  has  failed  to  deliver  the 
contract  article,  and  therefore  the  buyer's  remedy  in  damages  falls  under  sec. 
51,  not  sec.  53.  Instalment  deliveries  (s.  31),  in  terms  of  what  are  called 
continuing  contracts,  are  common  in  connection  with  supplies  of  iron  and 
coal.     See  their  effect  discussed.  Brown,  Sale  of  Goods  Act,  148  seq. 

Sec.  32  embodies  the  old  rule  of  the  law  of  Scotland  as  well  as  of 
England,  viz.  that  delivery  to  a  carrier  for  the  purpose  of  transmission  to 
the  buyer  is  frimd  facie  delivery  to  the  buyer  himself  {Prince,  1680,  Mor. 
4932).  But  the  passing  of  the  property  is  sometimes  determined  by 
subsequent  events.  Tlius  if  the  carrier  is  to  be  proceeded  against  for 
breach  of  his  contract  of  carriage,  the  buyer's  refusal  to  accept  may  render 
it  necessary  that  the  action  proceed  in  name  of  the  seller.  On  the  other 
hand,  if  the  buyer  accepts  and  trusts  to  the  seller's  responsibility  for 
damages,  the  action  should  be  at  the  instance  of  the  buyer,  as  owner  of  the 
goods  from  the  time  when  the  transit  commenced  (see  Dawes,  1799,  8  T. 
K.  330;  Dunlop,  1839,  7  CI.  &  Fin.  600;  Benjamin,  Sale,  164).  The 
rule  in  sec.  32  (2)  as  to  the  seller's  duty  to  make  a  contract  with  the 
carrier,  though  set  forth  by  text-writers  as  the  law  of  Scotland  prior  to  the 
Act,  is  supported  entirely  by  English  authorities  (Bell,  Sale,  84,  Com.  i. 
274,  Prin.  s.  118 ;  M.  P.  Brown,  Sale,  370).  On  the  other  hand,  the  rule 
in  sec.  32  (3)  as  to  insurance,  is  chiefly  founded  on  Scottish  authorities 


SALE  45 

(see  ^00^7,  1754,  Mor.  10096;  Cooper,  1791,  Mor.  10100;  Hesseltines,  1802 
Mor.  10111 ;  Elton,  13  Dec.  1808,  F.  C. ;  Arnot,  25  Nov.  1813  F  C  •  affd' 
1817,  5  Dow's  App.  274;  Fleet,  1854, 16  D.  1122;  Hastie,  1857,  19  D.' 557). 

Sec.  33  deals  with  an  incidental  point  in  the  law  of  risk.  The  f^eneral 
rule  as  to  risk  in  transit  depends  on  the  passing  of  the  property,  which 
may  or  may  not  be  coincident  with  delivery.  If  the  rule  of  this  section  is 
a  legal  effect  of  the  want  of  delivery,  it  is  clearly  exceptional  in  cases  where 
the  property  has  passed,  but  it  may  perhaps  be  taken  as  a  qualification  of 
warranty  rather  than  a  case  of  risk  (see  Beer,  1877,  46  L.  J.  C.  P.  677). 

The  provision  of  sec.  34  as  to  the  buyer's  right  to  have  the  goods 
examined  before  acceptance,  implies  a  duty  to  examine ;  but  sec.  14  (2), 
giving  the  buyer  the  benefit  of  an  implied  condition,  only  excepts  the  case 
of  actual  examination,  leaving  it  to  be  inferred  that  if  the  buyer  accepts 
the  goods  without  examination,  it  is  still  within  his  power  at  any  time  to 
found  upon  a  breach  of  warranty.  Acceptance  implies  such  conduct  on  the 
part  of  the  buyer  as  will  preclude  him  from  afterwards  rejecting  the  goods 
as  disconform  to  contract.  Where  it  follows  upon  an  "  agreement  to  sell," 
it  is  practically  the  buyer's  consent  to  the  seller's  appropriation  of  the 
goods  to  the  contract  (s.  18,  rule  5).  It  is  to  be  distinguished  from  "  receipt " 
(see  Wilson,  1896,  23  E.  714;  Morrison,  1898,  25  E.  427),  and  also  from 
"  acceptance  "  in  the  sense  of  sec.  4,  which  does  not  apply  to  Scotland.  The 
rule  as  to  acceptance  is  contained  in  sec.  35.  A  buyer  is  not  bound  to 
accept  goods  tendered  to  him  in  closed  casks  which  he  is  not  allowed  to 
open  {hhericood,  1843,  11  M.  &  W.  347),  nor  to  attend  at  a  particular  place 
after  sunset  {Startiqy,  1843,  6  M.  &  G.  593),  nor  to  select  the  contract  goods 
out  of  a  larger  quantity,  or  a  mixed  lot  sent  him  by  the  seller  (s.  30).  The 
buyer's  right  to  reject,  which  is  the  negative  of  his  duty  to  accept,  may  be 
affected  by  his  Beeakixg  I5ulk  (q.v.). 

Sec.  36  makes  it  clear  that  there  is  no  duty  on  tlie  part  of  the  buyer  to 
return  rejected  goods  to  the  seller.  It  is  sufficient  if  his  refusal  to  accept 
is  intimated  to  the  seller  by  notice,  or  by  any  luiequivocal  act  signifying 
rejection,  and  made  known  to  the  seller  {Grimoldhij,  1875,  10  C.  P.  391,  per 
Brett,  J.,  at  395).  The  former  law  of  Scotland  on  this  subject  was  not  well 
defined,  but  its  tendency  was  to  impose  a  duty  on  the  buyer  of  returning 
rejected  goods  to  the  seller,  or  at  least  offering  to  return  them  (see  e.g. 
Webster,  1830,  8  S.  528).  The  institutional  writers  state  that  the  goods 
must  be  "offered  lack"  (;Stair,  i.  10.  15;  Ersk.  iii.  3.  10;  Bank.  i.  19.  2), 
but  they  do  not  suggest  any  further  active  steps  on  the  part  of  the  buyer 
(see  also  Bell,  Com.  i.  464,  Fri^i.  s.  99 ;  M.  P.  Brown,  Sale,  309).  A  rule, 
however,  has  been  laid  down,  especially  in  sales  of  horses,  that  the  buyer's 
duty  does  not  end  with  mere  notice,  and  that  the  seller,  thougli  in  default, 
is  entitled  to  inq^ose  upon  the  buyer  the  duties  of  an  agent,  and  not  merely 
those  of  an  involuntary  bailee  {M'Bcy,  1858,  20  D.  1151;  Caled.  By.  Co., 
1882,  10  Pt.  63;  Mcdcolm,  1898,  25  "p.  1089).  On  the  other  hand,  see 
Couston,  1872,  10  i\I.  11.  L.  74,  where,  according  to  Ld.  Chelmsford,  tlie 
buyer's  duty  is  satisfied  if  he  make  a  clear  and  distinct  olfer  to  return,  or  in 
fact  return  the  goods,  "  hy  stating  to  the  vendor  that  the  goods  arc  at  his  risk." 
Horses  are  "  goods "  in  the  sense  of  the  Act,  and  it  is  submitted  that  the 
rule  referred  to  is  not  supported  by  sec.  36. 

IV.  Bights  of  Unpaid  Seller  against  the  Goods. 

38.  [JTnpaid  Seller  drfined.']  (1)  The  seller  of  goods  is  cleejned  to  Ijc  ;ui  "unpaid 
seller"  within  the  ineaiiiiif,'  nf  tiii.s  Act — 

ifi)  Wlu-n  the  whole  of  tlie  price  h.'i.s  not  Ijcen  paid  or  tendered  ; 


46  SALE 

(6)  Wlien  a  bill  of  exchange  or  other  negotiable  instrument  has  been  received  as 

conditional  payment,  and  the  condition  on  which  it  was  received  has  not  been 

fulfilled  by  reason  of  the  dishonour  of  the  instrument  or  otherwise. 

(2)  In  this  part  of  this  Act  the  term  "seller"  includes  any  person  who  is  in  the 

position  of  a  seller,  as,  for  instance,  an  agent  of  the  seller  to  whom  the  bill  of  lading  has 

been  indorsed,  or  a  consignor  or  agent  who  has  himself  paid,  or  is  directly  responsible 

for,  tlie  price. 

39.  [Unpaid  Seller's  Bight.]  (1)  Subject  to  the  provisions  of  this  Act,  and  of  any 
statute  in  that  behalf,  notwithstanding  that  the  property  in  the  goods  may  have  passed 
to  the  buyer,  the  unpaid  seller  of  goods,  as  such,  has  by  implication  of  law — 

(a)  Alien  on  the  goods  or  right  to  retain  them  for  the  price  while  he  is  in  possession 

of  them  ; 

(b)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping  the  goods  in  transitu 

after  he  has  parted  with  the  possession  of  them  ; 

(f)  A  right  of  re-sale  as  limited  by  this  Act. 

(2)  Where  the  property  in  goods  has  not  passed  to  the  buyer,  the  unpaid  seller  has, 
in  addition  to  his  other  remedies,  a  right  of  withholding  delivery  similar  to  and  co- 
extensive with  his  rights  of  lien  and  stoppage  in  transitu  where  the  property  has  passed 
to  the  buyer. 

40.  [Attachmejit  by  Seller  in  Scotland.]  In  Scotland  a  seller  of  goods  may  attach  the 
same  while  in  his  own  hands  or  possession  by  arrestment  or  poinding  ;  and  such  arrest- 
ment or  poinding  shall  have  the  same  operation  and  effect  in  a  competition  or  otherwise 
as  an  arrestment  or  poinding  by  a  third  party. 

Unpaid  Seller's  Lien. 

41.  [Seller's  Lien.]  (1)  Subject  to  the  provisions  of  this  Act,  the  unpaid  seller  of 
goods  who  is  in  possession  of  them  is  entitled  to  retain  possession  of  them  until  payment 
or  tender  of  the  price  in  the  following  cases,  namely  : — 

(a)  Where  the  goods  have  been  sold  without  any  stipulation  as  to  credit ; 

{b)  Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit  has  expired  ; 

(c)  Where  the  buyer  becomes  insolvent. 

(2)  The  seller  may  exercise  his  right  of  lien  notwithstanding  that  he  is  in  possession 
of  the  goods  as  agent  or  bailee  or  custodier  for  the  buyer. 

42.  [Part  Delivery.]  Where  an  unpaid  seller  has  made  part  delivery  of  the  goods,  he 
may  exercise  his  right  of  lien  or  retention  on  the  remainder,  unless  such  part  delivery 
has  been  made  under  such  circumstances  as  to  show  an  agreement  to  waive  the  lien  or 
right  of  retention. 

43.  [Termination  of  Lien.]  (!)  The  unpaid  seller  of  goods  loses  his  lien  or  right  of 
retention  thereon — 

(a)  When  he  delivers  the  goods  to  a  carrier  or  other  bailee  or  custodier  for  the 

purpose  of  transmission  to  the  buyer  without  reserving  the  right  of  disposal 
of  the  goods  ; 

(b)  When  the  buyer  or  his  agent  lawfully  obtains  possession  of  the  goods  ; 

(c)  By  waiver  thereof. 

(2)  The  unpaid  seller  of  goods,  having  a  lien  or  right  of  retention  thereon,  does  not 
lose  his  lien  or  right  of  retention  by  reason  only  that  he  has  obtained  judgment  or 
decree  for  the  price  of  the  goods. 

Sto2Jpage  in  transitu. 

44.  [Right  of  Stoiipage  in  transitu:]  Subject  to  the  provisions  of  this  Act,  when  the 
buyer  of  goods  becomes  insolvent,  the  unpaid  seller  who  has  parted  with  the  possession 
of  the  goods  has  the  right  of  stopping  them  in  transitu,  that  is  to  say,  he  may  resume 
possession  of  the  goods  as  long  as  they  are  in  course  of  transit,  and  may  retain  them 
until  payment  or  tender  of  the  price. 

45.  [Duration  of  Transit:]  (1)  Goods  are  deemed  to  be  in  course  of  transit  from  the 
time  when  they  are  delivered  to  a  carrier  by  land  or  water,  or  other  bailee  or  custodier 
for  the  purpose  of  transmission  to  the  buyer,  until  the  buyer,  or  his  agent  in  that 
behalf,  takes  delivery  of  them  from  such  carrier  or  other  bailee  or  custodier. 

(2)  If  the  buyer  or  his  agent  in  that  behalf  obtains  delivery  of  the  goods  before 
their  arrival  at  the  appointed  destination,  the  transit  is  at  an  end. 

(3)  If,  after  the  arrival  of  the  goods  at  the  appointed  destination,  the  carrier  or 
other  bailee  or  custodier  acknowledges  to  the  buyer,  or  his  agent,  that  he  holds  the 
goods  on  his  behalf  and  continues  in  possession  of  them  as  bailee  or  custodier  for  the 
buyer,  or  his  agent,  the  transit  is  at  an  end,  and  it  is  immaterial  that  a  further  destina- 
tion for  the  goods  may  have  been  indicated  by  the  buyer. 


SALE  47 

(4)  If   tlie  goods  are   rejected  hj  the   Iniyer,  and   the   carrier  or  other  bailee  or 
custodier  contiuuos  in  possession  of  them,  the  transit  is  not  deemed  to  be  at  an  end 
even  if  the  seller  has  refused  to  receive  them  back. 

(5)  When  goods  are  delivered  to  a  ship  chartered  by  the  buyer  it  is  a  question 
depending  on  the  circumstances  of  the  particular  case,  whether  they  are  iu  the 
possession  of  the  master  as  a  carrier,  or  as  agent  to  tlie  buj'er. 

(6)  Where  the  carrier  or  other  bailee  or  custodier  wrongfully  refuses  to  deliver  the 
goods  to  the  buyer,  or  his  agent  in  that  behalf,  the  transit  is  deemed  to  be  at  an  end. 

(7)  Where  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or  his  agent  iu 
that  behalf,  the  remainder  of  the  goods  may  be  stopped  in  transitu,  unless  such  part 
delivery  has  been  made  imder  such  circumstances  as  to  show  an  agreement  to  give  up 
possession  of  the  whole  of  the  goods. 

46.  [How  Stoppage  in  transitu  is  effected!]  (1)  The  unpaid  seller  may  exercise  his 
right  of  stoppage  in  transitu  either  by  taking  actual  possession  of  the' goods,  or  by 
giving  notice  of  his  claim  to  the  carrier  or  other  bailee  or  custodier  in  whose  possession 
the  goods  are.  Such  notice  may  be  given  either  to  the  person  in  actual  possession  of 
the  goods  or  to  his  principal.  In  the  latter  case  the  notice,  to  be  ellectual,  must  be 
given  at  such  time  and  under  such  circumstances  that  the  principal,  by  the  exercise  of 
reasonable  diligence,  may  communicate  it  to  his  servant  or  agent  in  time  to  prevent  a 
delivery  to  the  buj-er. 

(2)  When  notice  of  stoppage  in  transitu  is  given  by  the  seller  to  the  carrier,  or 
other  liailee  or  custodier  in  possession  of  the  goods,  he  must  re-deliver  the  goods  to,  or 
according  to  the  directions  of,  the  seller.  The  expenses  of  such  re-delivery  must  be 
borne  by  the  seller. 

(3)  Where  the  goods  are  of  a  perishable  nature,  or  where  the  unpaid  seller  gives 
notice  to  the  buyer  of  his  intention  to  re-sell,  and  the  buyer  does  not  within  a  reason- 
able time  pay  or  tender  the  price,  the  unpaid  seller  may  re-sell  the  goods  and  recover 
from  the  original  Ijuyer  damages  for  any  loss  occasioned  hj  his  breach  of  contract. 

(4)  Where  the  seller  expressly  reserves  a  right  of  re-sale  in  case  the  buyer  should 
make  default,  and  on  the  Iniyer  making  default,  re-sells  the  goods,  the  original  contract 
of  sale  is  thereby  rescinded,  but  without  prejudice  to  any  claim  the  seller  may  have 
for  damages. 


•*o^ 


Resale  hy  Buyer  or  Seller. 

47.  [Effect  of  Suh-Sale  or  PUdije  hy  Buyer.']  Sul)ject  to  the  provisions  of  this  Act,  the 
unpaid  seller's  right  of  lien  or  retention  or  stoppage  in  transitu  is  not  aft'ected  by  any 
sale,  or  other  disposition  of  the  goods  which  the  buyer  may  have  made,  unless  the 
seller  has  assented  thereto. 

Provided  that  where  a  document  of  title  to  goods  has  been  lawfully  transferred  to 
any  person  as  buyer  or  owner  of  the  goods,  and  tliat  person  transfers  the  docximcnt  to 
a  person  who  takes  the  document  in  good  faith  and  for  valuable  consideration,  then,  if 
such  last-mentioned  transfer  was  by  way  of  sale  the  unpaid  seller's  right  of  lion  or 
retention  or  stoppage  in  transitu  is  defeated,  and  if  such  last-mentioned  transfer  was  by 
way  of  j)ledge  or  other  disposition  for  value,  the  unpaid  seller's  right  of  lieu  or  retention 
or  stoppage  in  transitu  can  only  be  exercised  subject  to  the  rights  of  the  transferee. 

48.  [.S'rt/e  not  generally  rescinded  hy  Lien  or  Stoppage  in  transitu.]  (1)  Subject  to  the 
provisions  of  this  section,  a  contract  of  sale  is  not  rescinded  by  the  mere  exercise  by  an 
unpaid  seller  of  his  right  of  lien  or  retention  or  stoppage  in  transitu. 

(2)  Where  an  unjiaid  seller  wlio  has  exercised  his  right  of  lien  or  retention  or 
stoppage  in  transitu  re-sells  the  goods,  the  buyer  acquires  a  good  title  thereto  as  against 
the  original  buyer. 

These  sections  relate  to  the  unpaid  seller's  rights  of  lien,  stoppage  in 
transitu,  and  resale.  A  definition  is  given  (s.  38)  of  "  unpaid  seller,"  and 
the  ordinary  delinition  of  "  seller  "  (s.  62  (1))  is  extended,  as  regards  this  part 
of  the  Act,  so  as  to  include  persons  in  the  position  of  a  seller.  The  cnbct 
of  sec.  38  (1)  is  that  neither  a  partial  payment  nor  a  conditional  payment 
operates  to  take  the  seller  out  of  the  category  of  an  unpaid  seller.  Sec.  38 
(2)  expresses  the  rule  established  in  regard  to  stoppage  in  transitu  l)y  Feise, 
1802,  3  East,  93.  The  right  to  stop  in  transitu  is  not  an  adjunct  of  lion  in 
the  ordinary  sense,  Init  is  a  right  ])eculiar  to  the  seller  of  goods.  Ilcncc, 
though  many  other  persons  have  liens  over  goods  in  their  possession  (see 
Lien),  none  but  a  seller  can  follow  the  goods  of  another  after  the  actual 
custody  has  been  lost.    But  among  sellers  are  classed  consignors  and  agents 


48  SALE 

in  the  position  of  sellers.  Thus  in  Feise  (v.s.)  the  right  was  held  to  exist 
in  favour  of  an  agent  wlio  had  bought  goods  on  his  own  credit,  but  on  the 
order  of  a  principal  to  whom  he  consigned  them,  and  who  became  bankrupt 
during  the  transit. 

Sec.  o9  (2)  deals  with  the  unpaid  seller's  rights  where  the  property  has 
not  passed.  It  declares  that,  in  addition  to  his  other  remedies,  he  has  a 
right  of  withholding  delivery  similar  to,  and  co-extensive  with,  his  rights 
of'^lien  and  stoppage  in  transitu  where  the  property  has  passed.  But  the 
whole  ground  would  have  been  better  covered  by  a  simple  statement  that 
where  the  property  or  ownership  has  not  passed,  the  seller  remains  owner 
and  has  all  the  rights  of  an  owner.  Among  these  rights  is  "  retention," 
which  in  Scotland, '^bef ore  the  Act,  could  be  exercised  by  the  seller  up  till 
the  passino-  of  the  property  by  delivery,  but  subject  to  the  restrictions 
introduced^  the  M.  L.  A.  Act,  1856  (19  &  20  Vict.  c.  60).  The  owner  of 
an  article  is  not  bound  to  part  with  it ;  and  if  he  has  entered  into  a  contract 
creating  a  j'lis  ad  rem,  neither  the  creditor  in  that  right,  nor  anyone 
deriving  title  through  him,  can  enforce  it  so  long  as  he  is  debtor  to  the 
seller  in  any  other  obligation.  Hence,  where  the  property  has  not  passed, 
the  seller  can  retain  the  thing  sold  not  only  for  the  price,  but  for  any  debt 
or  general  balance  owing  to  him  by  the  buyer.  The  M.  L.  A.  Act,  1856, 
restricted  this  riglit  to  what  was  practically  the  English  lien  for  the  price, 
although  technically,  from  the  absence  of  delivery,  the  property  had  not 
passed.  The  i^ro visions  of  the  M.  L.  A.  Act  referred  to  are  repealed  by 
this  Act,  but  in  their  place  we  have  the  English  rule  by  which  the  property 
in  specific  goods  may  pass  irrespective  of  delivery.  Where  the  property 
passes  before  delivery,  the  seller  is  no  longer  owner,  and  he  therefore  loses 
his  right  of  retention,  but,  on  the  other  hand,  he  acquires  the  inferior  right 
of  a  lien  for  the  price,  as  that  right  previously  existed,  and  still  exists,  in 
England.  The  provision  in  the  section  now  under  consideration  was 
unnecessary.  It  in  effect  enacts  that  a  right  to  the  whole  includes  a  right 
to  some  of  the  parts.  The  same  imperfect  view  of  the  legal  effect  of 
passing  the  property  led  to  the  introduction  into  the  Act  of  the  words  "  or 
right  to  retain  "  in  sec.  39  (1)  (a)  and  the  word  "  retention  "  in  sees.  42,  43, 
47,  and  48.  These  additions  were  supposed  to  be  necessary  in  order  to  adapt 
the  English  Bill  to  Scotland,  but  for  the  reasons  above  explained  they  are 
incorrectly  applied,  and  therefore  misleading.  The  same  remark  applies  to 
the  definition  or  explanation  "  lien  in  Scotland  includes  right  of  retention  " 
(s.  62  (1)).  The  converse  would  have  been  more  accurate ;  for  retention 
being  the  unrestricted  right  of  an  owner,  includes  lien  and  much  more.  To 
treat  the  word  "  retention  "  as  equivalent  to  a  lien  for  the  price  is  to  give 
it  an  entirely  new  meaning  in  the  law  of  Scotland  (see  Harper's  Crs.,  1791, 
BeU's  Oct.  Ca.  440;  Brotv7i,  1844,  6  D.  1267;  More,  Lectures,  i.  402);  yet 
such  is  apparently  done  in  sec.  39  (1)  (a),  where  the  words  are  "  right  to 
retain  them  for  the  2>rice." 

Sec.  41  explains  the  nature  of  the  seller's  lien.  In  common  with  all 
other  liens,  it  is  a  right  over  the  property  of  a  person  other  than  the  person 
•seeking  to  enforce  it.  But  it  is  more  extensive  than  an  ordinary  lien,  which, 
while  it  would  entitle  the  seller  to  retain  for  the  price,  would  not  enable 
liim  to  confer  any  title  on  a  third  party  either  by  way  of  re-sale  or  pledge. 
■"  It  interferes  not  only  with  the  purchaser's  right  of  possession  but  also 
with  his  right  of  property  "  (Blackburn,  Sale,  445).  On  the  other  hand,  it 
does  not  amount  to  a  resumption  of  the  property  by  the  seller  so  as  to 
■entitle  him  to  treat  the  contract  as  rescinded  or  non-existent.  For  this 
■purpose  there  must  be  a  repassing  of  the  property  from  the  buyer  to  the 


SALE  49 

seller,  as  where  the  buyer  obtains  a  decree  for  damages  for  failure  to 
deliver,  and  the  seller  pays  the  amount.  The  buyer  cannot  keep  both 
damages  and  property,  and  the  latter,  therefore,  by  operation  of  law,  passes 
back  to  the  seller.  Sec.  43  (2)  negatives  a  proposition  which  might  have 
been  put  forward  in  England,  but  would  have  been  unintelligible  under 
the  former  law  of  Scotland.  In  Scotland,  the  ownership  of  goods  could  not 
have  been  changed  by  any  mere  personal  decree  against  eitlier  seller  or 
buyer,  but  now,  as  above  explained,  a  decree,  even  in  Scotland,  may 
occasionally  have  this  effect.  The  object  of  the  provision  is  to  secure  that 
the  mere  obtaining  of  the  decree  or  judgment  will  not  affect  the  unpaid 
seller's  remedies  so  long  as  the  decree  or  judgment  is  not  satisfied  by 
payment. 

Sec.  44  defines  stoppage  in  transitu  as  a  right  to  "  resume  possession  of 
the  goods  so  long  as  they  are  in  course  of  transit,"  and  to  "  retain  them 
until  payment  or  tender  of  the  price."  The  governing  principles  of  seller's 
lien  and*^  stoppage  in  transitu,  though  differing  from  the  ordinary  rules  of 
contract,  very  nearly  resemble  each  other.  Both  are  seller's  remedies 
against  the  goods,  and  have  for  their  object  the  securing  of  the  unpaid 
price.  Both  necessarily  suppose  the  property  to  be  in  the  buyer,  but 
although  the  property  must  have  passed,  the  possession  remains  with  the 
seller  or  with  a  carrier.  In  both,  the  right  ceases  after  the  goods  have 
been  delivered  into  the  actual  or  constructive  custody  of  the  buyer,  or  his 
agent  other  than  a  carrier  conveying  the  goods  towards  the  buyer  or  in 
terms  of  the  contract.  Lien  exists  so  long  as  the  unpaid  seller  retains 
actual  or  constructive  possession,  and  ceases  the  moment  possession  is 
lost ;  stoppage  begins  where  lien  ends,  and  continues  so  long  as  the  goods, 
though  in  a  sense  delivered  to  the  buyer  through  his  agent  the  carrier 
(s.  32),  are  still  in  course  of  transit.  In  one  important  respect,  however, 
the  rights  differ.  Lien  can  be  exercised  whether  the  buyer  is  insolvent 
or  not ;  stoppage  is  only  availal)le  when  the  buyer  is  insolvent  according 
to  the  definition  of  insolvency  given  in  sec.  62  (3)  of  this  Act.  If  the 
seller  stop  in  transitu  bef(jrc  actual  insolvency,  he  does  so  at  his  peril.  If, 
when  the  goods  arrive  at  their  destination,  the  buyer  continues  solvent, 
the  goods  must  be  delivered,  and  the  seller  will  be  liable  in  any  expenses 
incurred  {The  Constantia,  1807,  6  Eob.  A.  321).  In  sec.  45  there  is  frequent 
reference  to  the  agent  of  the  l)uyer  as  being  entitled  to  put  an  end  to 
stoppage  in  transitu,  but  nowhere  in  the  Act  is  it  expressly  stated  that  the 
acllcr's  agent  may  enforce  the  sto[)i)age  wliere  he  has  not  a  direct  title  as 
indorsee  or  is  not  personally  interested  as  having  paid  or  become  responsible 
for  the  price.  Such  a  right,  however,  on  the  part  of  an  agent  exercising 
either  special  or  general  authority  is  clearly  implied.  Sec.  01  (2)  reserves 
the  rules  relating  to  the  law  of  principal  and  agent,  and  in  practice,  the 
power  of  an  agent  in  tliis  respect  is  fully  recognised  {e.g.  Baxter,  1807, 
Hume,  088;  Whitehead,  1842,  2  M.  &  W.  518).  A  different  question 
arises  if  one  who  has  no  authority  whatever  assumes  to  act  on  behalf  of 
the  seller.  The  rule  in  England  appears  to  be  that  if  the  act  of  the  party 
in  stop]»ing  the  goods  is  ratified  before  the  transit  is  ended,  by  tlie  party 
entitled  to  exercise  the  privilege,  it  will  Ijc  effectual,  but  that  ratification 
or  ad(i])tion  after  the  transit  will  be  too  late.  A  cautioner  for  the  price  is 
not  entitled  to  stop  in  transitu  {Louson,  1842,  4  D.  1452;  Siffkin,  1805,  G 
East,  371) ;  but  if  a  cautioner  has  paid  the  price  to  tlie  seller,  he  is  entitled, 
according  to  the  ordinary  rule  of  the  law  of  Scotland,  to  an  assignment  of 
the  securities  held  by  the  creditor,  including  the  right  to  stop  the  goods.  An 
arrestment  in  the  hands  of  the  carrier  by  a  creditor  of  the  buyer  will  not  defeat 

8.  E. — VOL.  XI.  * 


50  SALE 

the  seller's  riglit  to  stop  the  goods  (N'cisli,  1807,  Hume,  G93 ;  Ditnlop,  22 
Feb.  1814,  F.  C),  nor  will  a  mere  cash  receipt  granted  by  the  buyer  to  a  sub- 
buyer,  not  being  a  document  of  title  {Kcmjh  1882,  7  App.  Ca.  573,  per  Ld. 
Blackburn,  at  584).  When  there  are  cross  accounts  bet\Yeeu  seller  and 
buyer,  the  riglit  is  not  excluded  by  the  fact  that  the  seller  has  goods  of  the 
buyer  in  his  hands  unaccounted  for,  and  the  balance  is  uncertain  (  Wood, 
1825,  7  D.  &  E.  726  ;  but  see  the  doubtful  case,  Vcrtue,  1814,  4  Camp.  31, 
and  Benjamin,  Sale,  849).  The  seller's  right  of  stoppage  in  transitu  will 
prevail  against  any  lien  claimed  by  the  carrier  on  account  of  a  general 
balance  (Oppenheim,  1802,  3  B.  &  P.  42),  but  not  for  the  carrier's  special 
charges  on  the  goods  themselves.  Details  as  to  the  duration  of  the  transit 
and  the  mode  of  effecting  stoppage  are  contained  in  sees.  45  and  46.  See 
also  Stoppage  in  transitu. 

It  has  been  shown  that  the  unpaid  seller's  rights  of  lien  and  stoppage 
in  transitu  are  only  appropriate  where,  as  an  effect  of  the  contract,  the 
property  has  passed  to  the  buyer.  Where  the  property  lias  not  passed, 
the  seller  has  no  need  of  special  remedies  directed  as  against  the  property 
of  other  persons,  since  he  himself  continues  owner.  As  proprietor,  he  has 
the  hio-her  right  of  retention  if  he  is  in  possession,  and  an  ordinary  action 
for  recovery,  if  the  goods  are  wrongfully  in  the  hands  of  others.  If  the 
exercise  of  the  rights  of  lien  or  stoppage  in  transitu  had  the  effect  of 
rescinding  the  contract  in  virtue  of  which  the  property  passed,  the  property 
would  again  l^ecome  that  of  the  seller,  but  the  Act  (s.  48  (1))  provides 
that  this  effect  shall  not  follow.  The  seller  has,  nevertheless,  certain 
special  rights  conferred  upon  him  which  place  him  in  almost  as  favourable 
a  position  as  if  he  had  never  been  divested  of  the  property.  Among  these 
is  a  right  of  re-sale,  subject  to  certain  notices  as  specified  in  sec.  48.  In 
certain  circumstances  (also  specified  in  the  section)  the  original  contract  of 
sale  is  actually  rescinded,  but  without  prejudice  to  any  claim  the- seller 
may  have  for  damages.  While  the  seller's  rights  are  thus  enlarged,  the 
buyer's  rights  as  owner  of  property  which  has  passed  to  him  are  diminished. 
Thus,  under  sec.  47,  the  buyer  cannot  give  a  title  to  a  third  person  which 
will  interfere  with  the  unpaid  seller's  remedies  against  the  goods  unless  in 
the  case  of  a  transferee  under  a  document  of  title  who  has  taken  the 
docu.ment  in  good  faith  and  for  valuable  consideration.  As  to  document 
of  title,  see  above,  p.  44. 

Sec.  40  as  to  the  seller's  power  of  arrestment  or  poinding,  is  taken  from 
sec.  3  of  the  Mercantile  Law  Amendment  Act,  Scotland,  1856,  with  the 
omission  of  certain  particulars  referring  to  the  special  procedure  created 
by  that  Act.  In  consequence  of  the  passing  of  the  property  to  the  buyer 
under  the  present  Act,  that  which  in  the  M.  L.  A.  Act  was  a  confusing 
anomaly  (see,  e.g.,  Wyper,  1861,  23  D.  606)  has  now  become  an  appropriate 
diligence.  The  section  is  declaratory  of  the  common  law  and  might  have 
been  omitted  as  mere  matter  of  procedure  but  for  a  possible  negative 
inference  from  the  repeal  of  identical  words  in  the  old  statute.  Where 
the  seller's  right  of  lien  or  so-called  retention  is  defeated,  as  by  the  transfer 
of  a  document  of  title  under  sec.  47,  the  right  to  arrest  or  poind  is 
necessarily  gone.  The  goods  no  longer  belong  to  the  seller's  debtor. 
Where  the  goods  are  in  the  actual  custody  of  the  seller,  it  would  seem  that 
poinding  and  not  arrestment  is  the  proper  diligence  (ZochJicad,  1883,  11 
E.  201,  per  Ld.  Kinnear,  at  204;  but  see  Tillicoutry,  1678,  Fount,  i. 'lO. 
See  also  Harper's  Crs.,  1791,  Bell's  Oct.  Ca.  440,  per  Ld.  Dreohorn  at 
465 ;  WyjMr,  1861,  23  D.  606,  per  Ld.  Bres.  M'Neill,  at  618  ;  Brow7ic,  1893, 
21  E.  173 ;  Boss,  L.  C.  M.  L.  ii.  740 ;  More,  Lectures,  i.  402  sea).     Where 


SALE  51 

the  goods  are  in  tlie  hands  of  a  warehouseman  or  other  neutral  person, 
arrestment  is  of  course  the  proper  form  of  dihgence. 

V.  Actions  foe  Beeach  of  the  Contract. 
Remedies  of  the  Seller. 

49.  [Action  for  Price.]  (1)  Where,  imder  a  contract  of  sale,  the  property  in  the 
goods  lias  passed  to  the  buyer,  and  the  buyer  wrongfully  neglects  or  refuses  to  pay  for 
the  goods  according  to  the  terms  of  the  contract,  the  seller  may  maintain  an  action* 
against  him  for  the  price  of  the  goods. 

(2)  Where,  under  a  contract  of  sale,  the  price  is  payable  on  a  day  certain  irrespective 
of  delivery,  and  the  buyer  AvrongfuUy  neglects  or  refuses  to  pay  such  price,  the  seller 
may  maintain  an  action' for  the  price,  although  the  property  in  the  goods  has  not  passed, 
and  the  goods  have  not  been  appropriated  to  the  contract. 

(3)  Nothing  in  this  section  shall  prejudice  the  right  of  the  seller  in  Scotland  to 
recover  interest  on  the  price  from  the  date  of  tender  ol  the  goods,  or  from  the  date  on 
which  the  price  was  paval)le,  as  the  case  may  be. 

50.  [Damages  for  ^AVa-Acceptance.]  (1)  Where  the  buyer  wrongfully  neglects  or 
refuses  to  accept  and  pay  for  the  goods,  the  seller  may  maintain  an  action  against  him 
for  damages  for  non-acceptance. 

(2)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally  resulting, 
in  the  ordinarv  course  of  events,  from  the  buyer's  breach  of  contract. 

(3)  Where'there  is  an  available  market  for  the  goods  in  question  the  measureof 
damages  is  prima  facie  to  be  ascertained  by  the  difference  between  the  contract  price 
and  the  market  or  current  price  at  the  time  or  times  when  the  goods  ought  to  have  been 
accepted,  or,  if  no  time  was  fixed  for  acceptance,  then  at  the  time  of  the  refusal  to 
accept. 

Remedies  of  the  Buyer. 

51.  [DamcKjes  for  Non-Delivery:]  (1)  Where  the  seller  wrongfully  neglects  or  refuses 
to  deliver  the  goods  to  the  buyer,  the  buyer  may  maintain  an  action  against  the  seller 
for  damages  for  non-deliverv. 

(2)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally  resulting, 
in  the  ordinary  course  of  events,  from  the  seller's  breach  of  contract. 

(3)  Where*'there  is  an  available  market  for  the  goods  in  question  the  measure  of 
damages  is  prima  facie  to  be  ascertained  by  the  difference  between  the  contract  price 
and  the  market  or  current  price  of  the  goods  at  the  time  or  times  when  they  ought  to 
have  Ijcen  delivered,  or,  if  no  time  was  fixed,  then  at  the  time  of  the  refusal  to  deliver. 

52.  [Specific  Performance.]  In  any  action  for  breach  of  contract  to  deliver  specific 
or  ascertained  goods  the  court  niav,  if  it  thinks  fit,  on  the  application  of  the  plaintifl, 
by  its  judgment  or  decree  direct  that  the  contract  shall  be  performed  specilically, 
Avithout  giving  the  defendant  the  option  of  retaining  the  goods  on  payment  of  damages. 
Tlie  judgment  or  decree  maybe  unconditional,  or  upon  such  terms  and  conditions  as 
to  damages,  payment  of  the  price,  and  otlierwise,  as  to  the  court  may  seem  just,  and 
the  api)lication  l)y  the  plaintitf  mav  be  made  at  any  time  before  judgment  or  decree. 

Tlie  provisions  of  this  section  'shall  be  deemed  to  be  supplementary  to,  and  not  m 
derogation  of,  the  right  of  specific  imiilement  in  Scotland. 

53.  [Remcfhjfor  Breach  of  JFarranty].  (1)  "W'lu  re  there  is  a  breach  of  warranty  by  the 
.seller,  or  where  the  buyer  elects,  or  is  com])elled,  to  treat  any  breach  of  a  condition  on 
tlic  part  f.f  the  seller  as  a  breach  of  warranty,  the  buyer  is  not  by  reason  only  of  such 
breach  of  warrantv  entitled  to  reject  the  goods  ;  but  lie  may 

(«)  set  up  against  the  seller  the  breach  of  warranty  in  diminution  or  extinction  ot 

the  price  ;  or 
(h)  maintain  an  action  against  the  seller  for  damages  for  the  breach  of  warranty. 

(2)  The  measure  of  damages  for  breach  of  warranty  is  the  estimated  loss  directly  and 
naturally  resulting,  in  the  ordinary  course  of  events,  from  the  broach  of  warranty. 

(3)  In  the  case  of  breach  of  warrantv  of  (piality  such  loss  is  prima  facie  the  dificrence 
K'twecen  the  value  of  the  goods  at  the 'time  of  delivery  to  the  buyer  and  the  value  they 
would  have  had  if  thcv  ha'l  answered  to  the  warranty. 

(4)  Tlic  fact  tliat  the  buyer  has  set  ui)  the  lirearli  of  warranty  in  diminution  or 
extinction  of  the  price  docs  not  prevent  him  from  maintaining  an  action  for  the  same 
breach  of  warrantv  if  he  has  suffered  further  damage.  ,      e      ■      ■       • 

(.'))  Notliingiii  this  section  shall  prejudice  or  alfect  the  buyer'.s  right  of  rejection  in 
.Scotland  as  declared  bv  this  Act.  •  i  i.    <■  .i 

54.  [Interest  and  Special  Damcujcs.]  Nothing  in  this  Act  shall  alTect  the  right  ot  tlie 


Ko  SALE 


buyer  or  the  seller  to  recover  interest  or  special  damages  in  any  case  where  by  law 
interest  or  special  damages  may  be  recoverable,  or  to  recover  money  paid  where  the 
consideration  for  the  payment  of  it  has  failed. 

Under  sections  49  and  50  the  seller's  remedies  in  Scotland  are  somewhat 
altered.  Formerly,  in  the  event  of  a  breach  by  the  buyer,  the  seller  had  in 
every  case  alternative  remedies :  (1)  he  might  sue  for  the  price,  provided 
he  continued  in  a  position  to  ofler  the  goods  (Bell,  Co7n.  i.  472),  or  (2)  he 
mic'ht  retain  the  goods  and  claim  damages,  subject  to_  an  obUgation  to 
lessen  the  damage  by  a  re-sale  where  a  market  was  available.  But  under 
the  Act,  where  the  property  has  not  passed  and  where  the  price  is  not 
payable  upon  a  day  certain  irrespective  of  delivery,  the  seller  is  restricted 
to  a  claim  of  damages  under  sec.  50.  Where  the  property  has  passed,  the 
seller  has  the  option  of  an  action  for  the  price  under  sec.  49  or  an  action 
for  damages  under  sec.  50.  The  general  rules  of  law  in  regard  to  damages 
will  be  found  under  Damages,  Measure  of. 

Sec.  49  (3)  reserves  the  seller's  right  in  Scotland  to  recover  interest  on 
the  price.  In  England,  interest  is  not  recoverable  on  the  price  of  goods 
sold  (Mayne,  Damages,  5th  ed.,  162) ;  but  if  the  contract  is  in  writing,  and  if 
the  price  is  a  "  debt  or  sum  certain  payable  at  a  certain  time,"  interest  may 
be  allowed  under  3  &  4  Will.  iv.  c.  42,  s.  28  (see  Duncomhe,  1875,  10 
Q.  B.  371).  In  Scotland,  the  seller  can,  as  a  rule,  sue  for  the  price  and 
interest  from  the  date  when  the  money  should  have  been  paid.  This 
proceeds  on  implied  agreement  by  the  person  in  default  to  pay  for  the  use 
of  the  money  held  by  him  in  breach  of  his  contract  (M.  P.  Brown,  Sale, 
348 ;  Bell,  Prin.  s.  32 ;  Bell,  Com.  i.  692,  694 ;  Second  Hep.  Mcr.  Laiv  Com., 
1855,  p.  47).  "  It  has  often  been  said,  and  I  think  it  is  a  rule  of  law,  that 
interest  is  only  due  where  there  is  either  a  contract  to  pay  interest,  or  a 
duty  to  invest,  or  in  respect  of  morata  solutio  "  (Boss,  1896,  23  E.  802,  per 
Ld.  M'Laren,  at  805).  The  only  damages  for  delay  in  the  imyment  of  money 
is  the  interest  {Eoissard,  1897,  24  E.  861).  See  generally  on  the  subject  of 
interest.  Interest  (of  Money). 

Sec.  51  represents  the  buyer's  remedy  in  damages  for  non-delivery,  just 
as  sec.  50  represents  the  seller's  remedy  in  damages  for  non-acceptance. 
Where  the  damage  arises  not  from  non-delivery  but  from  a  breach  by  the 
seller  of  some  condition  of  warranty  not  entitling  the  buyer  to  reject,  the 
remedy  is  specified  in  sec.  53  ;  but  as  the  buyer  ia  Scotland  has  a  right  of 
rejection  not  known  in  England,  his  remedy,  where  such  right  is  exercised, 
falls  under  sec.  51.  It  is  a  case  of  non-delivery  by  the  seller,  of  goods 
answering  to  the  contract.  As  to  the  Scottish  law  of  specific  implement 
reserved  l)y  sec.  52,  see  supra,  p.  23. 

VI.  Supplementary. 

55.  [Exchision  of  ImiAicd  Terms  and  Conditions.']  Where  any  right,  duty,  or  liability 
would  arise  under  a  contract  of  sale  by  implication  of  law,  it  may  be  negatived  or  varied 
by  express  agreement  or  by  the  course  of  dealing  between  the  parties,  or  by  usage,  if  the 
usage  be  such  as  to  bind  both  parties  to  the  contract. 

56.  [Reasonable  Time  a  Question  of  Fact]  Where,  by  this  Act,  any  reference  is  made  to 
a  reasonable  time  the  question  what  is  a  reasonable  time  is  a  question  of  fact. 

57.  [Rights,  etc.,  enforceahle  h/  Actio7i.]  Where  any  right,  duty,  or  liability  is  declared 
by  this  Act,  it  may,  unless  otherwise  by  this  Act  provided,  be  enforced  by  action. 

58.  [Auction  Sales.]  In  the  case  of  a  sale  by  auction — 

(1)  Where  goods  are  put  up  for  sale  by  auction  in  lots,  each  lot  is  prima  facie  deemed 

to  Ije  the  subject  of  a  separate  contract  of  sale  : 

(2)  A  sale  by  auction  is  complete  when  the  auctioneer  announces  its  completion  by 

the  fall  of  the  hammer,  or  in  other  customary  manner.     Until  such  announce- 
ment is  made  any  bidder  may  retract  his  bid  : 

(3)  Where  a  sale  by  auction  is  not  notified  to  be  subject  to  a  right  to  bid  on  behalf 


SALE  53 

of  tlie  seller,  it  sliall  not  be  lawful  for  the  seller  to  bid  himself  or  to  employ 
any  person  to  bid  at  such  sale,  or  for  the  auctioneer  knowingly  to  take  any  bid 
from  the  seller  or  any  such  person  :  Any  sale  contravening  this  rule  may  be 
treated  as  fraudulent  by  the  buyer  : 

(4)  A  sale  by  auction  may  be  notified  to  be  subject  to  a  reserved  or  upset  price,  and 
a  right  to  bid  may  also  be  reserved  expressly  bj'-  or  on  behalf  of  the  seller. 

Where  a  right  to  bid  is  expressly  reserved,  but  not  otherwise,  the  seller,  or  any  one 
person  on  his  behalf,  may  bid  at  the  auction. 

59.  [Payment  into  Court  in  Scotland  ivhen  Breach  of  Warranty  alleged.']  In  Scotland 
where  a  buyer  has  elected  to  accept  goods  which  he  miglit  have  rejected,  and  to  treat  a 
breach  of  contract  as  only  giving  rise  to  a  claim  for  damages,  he  may,  in  an  action  by 
the  seller  for  the  price,  be  required,  in  the  discretion  of  the  Court  before  which  the 
action  depends,  to  consign  or  pay  into  Court  the  price  of  the  goods,  or  part  thereof,  or  to 
give  other  reasonable  security  for  the  due  payment  thereof. 

60.  [Repeal].  The  enactments  mentioned  in  the  schedule  to  this  Act  are  hereby 
repealed  as  from  the  commencement  of  this  Act  to  the  extent  in  that  schedule 
mentioned. 

Provided  that  such  repeal  shall  not  affect  anything  done  or  suffered,  or  any  right, 
title,  or  interest  acquired  or  accrued  before  the  commencement  of  this  Act,  or  any  legal 
proceeding  or  remedy  in  respect  of  any  such  thing,  right,  title,  or  interest. 

61.  [.S(a-i)i^s.]  (1)  The  rules  in  bankruptcy  relating  to  contracts  of  sale  shall 
continue  to  apply  thereto,  notwithstanding  anything  in  this  Act  contained. 

(2)  The  rules  of  the  common  law,  including  the  law  merchant,  save  in  so  far  as  they 
are  inconsistent  with  the  express  jirovisions  of  this  Act,  and  in  particular  the  rules 
relating  to  the  law  of  principal  and  agent  and  the  effect  of  fraud,  misrejsresentation, 
duress  or  coercion,  mistake,  or  other  invalidating  cause,  shall  continue  to  apply  to 
contracts  for  the  sale  of  goods. 

(3)  Nothing  in  this  Act  or  in  any  repeal  effected  thei'eby  shall  affect  the  enactments 
relating  to  bills  of  sale,  or  any  enactment  relating  to  the  sale  of  goods  which  is  not 
expressly  repealed  by  this  Act. 

(4)  The  i)rovisions  of  this  Act  relating  to  contracts  of  sale  do  not  apply  to  any 
transaction  in  the  form  of  a  contract  of  sale  which  is  intended  to  operate  by  Avay  of 
mortgage,  ])ledge,  charge,  or  otlier  security. 

(.0)  Nothing  in  this  Act  shall  prejudice  or  affect  the  landlord's  right  of  hyiwthec  or 
sequestration  for  rent  in  Scotland. 

62.  [Interpretation  of  Terms.]  (1)  In  this  Act,  unless  the  context  or  subject  matter 
otherwise  requires, — 

"Action"  includes  counterclaim  and  set  off',  and  in  Scotland  condescendence  and 
claim  and  compensation  : 

"Bailee"  in  Scotland  includes  custodier  : 

"Jjuyer"  means  a  person  who  buys  or  agrees  to  buy  goods  : 

"Contract  of  s;de  "  includes  an  agreement  to  sell  as  well  as  a  sale  : 

"  Defendant"  includes  in  Scotland  defender,  respondent,  and  claimant  in  a  multiple- 
poinding : 

"  Delivery  "  means  voluntary  transfer  of  possession  from  one  person  to  another  : 

"Document  of  title  to  goods"  has  the  same  meaning  as  it  has  in  the  Factors 
Acts : 

"Factors  Acts"  mean  the  Factors  Act,  1889,  the  Factors  (Scotland)  Act,  1890,  and 
any  enactment  amending  or  substituted  for  the  same  : 

"Fault  "  means  wrongful  act  or  default : 

"  P'uture  goods"  mean  goods  to  be  manufactured  or  acquired  by  the  seller  after  the 
making  of  the  contract  of  sale  : 

"Goods"  include  all  chattels  jjersonal  other  than  things  in  action  and  money,  and 
in  Scotland  all  cori)oreal  nioveabk-s  excejjt  money.  The  term  includes  emble- 
ments, industrial  growing  crop.s,  and  things  attached  to  or  forming  part  of  the 
land  wliicli  are  agreed  to  be  severed  before  .sale  or  under  the  contract  of  sale  : 

"Lien"  in  Scotland  includes  ri'dit  of  n^tcntion  : 


'D' 


"  IMaintilt'"   includes   pursuer,    comiilainer,   claimant    in    a    mull  iplcpninding   and 

defendant  or  defender  counterclaiming  : 
"Property"   means   the   general    ])rnpeity    in    goods,   and    not    merely    a    special 

property  : 
Quality  of  goods"  includes  their  state  or  condition  : 
"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and  delivery  : 
"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods  : 
"Specific  goods"  mean  goods  identified  and  agreed  upr)n  at  the  time  a  contract  of 

fiale  is  made  : 


<( 


SALE 


"Warranty"  as  resards  England  and  Ireland  means  an  agreement  witli  reference  to 
goods  -fvlncli  a?e  the  subject  of  a  contract  of  sale,  but  collateral  to  tlie  mam 
purpose  of  such  contract,  the  breacli  of  which  gives  rise  to  a  claim  for  damages, 
but  not  to  a  right  to  reject  the  goods  and  treat  the  contract  as  repudiated. 

As  regards  Scotland  a  breach  of  warranty  shall  be  deemed  to  be  a  failure  to  perform 
a  material  part  of  the  contract.  ,   ..,„      . -,  •     ,,  •         f^^;.^.^ 

(2)  A  thing  is  deemed  to  be  done  "in  good  faith"  within  the  meaning  of  this  Act 
whenit  is  in  fact  done  honestlv,  whether  it  be  done  negligently  or  not._ 

(3)  A  i>erson  is  deemed  to  be  insolvent  within  the  meaning  of  this  Act  who  either 
has  ceased  to  pay  his  debts  in  the  ordinary  course  of  business,  or  cannot  pay  his  debts 
as  they  become  due,  whether  he  has  committed  an  act  of  bankruptcy  or  not,  and 
whether  he  has  become  a  notour  bankrupt  or  not.  p    ,  •     ,   .     i       ^i 

(4)  Goods  are  in  a  "deliverable  state"  within  the  meaning  of  this  Act  when  they 
are  in  such  a  state  that  the  buyer  would  under  the  contract  be  bound  to  take  delivery 

[Comme7icement.']  This  Act  shall  come  into  operation  on  the  first  day  of  January 


of  them 
63 


one  thousand  eii;ht  hundred  and  ninety-four.  ,  ^      -,     ,        ,  ono 

64.  [Short  Title.]  This  Act  may  be  cited  as  the  Sale  of  Goods  Act,  189u. 

SCHEDULE. 

This  schedule  is  to  be  read  as  referring  to  the  revised  edition  of  the  statutes  prepared 
under  the  direction  of  the  Statute  Law  Committee. 

Enactments  Repealed. 


Session  and  Chapter. 


Title  of  Act  and  Extent  of  Repeal. 


1  Jac.  I.  c.  21 

29  Cha.  11.  c.  3      . 

9  Geo.  IV.  c.  14     . 

19  &  20  Vict.  c.  60 

19  &  20  Vict.  c.  97 


An  Act  against  brokers. 

The  whole  Act. 
An  Act  for  the  prevention  of  frauds  and  perjuries.  _ 

In  part ;  that  is  to  say,  sections  fifteen  and  sixteen.'^ 
An  Act  for  rendering  a  written  memorandum  necessary  to 
the  validity  of  certain  promises  and  engagements. 

In  part ;  that  is  to  say,  section  seven. 
The  Mercantile  Law  Amendment  (Scotland)  Act,  1856. 

In  part ;  that  is  to  say,  sections  one,  two,  three,  four, 
and  five. 
The  Mercantile  Law  Amendment  Act,  1856. 

In  part ;  that  is  to  say,  sections  one  and  two. 


1  Commonly  cited  as  sections  sixteen  and  seventeen. 

ThesG  sections  deal  with  a  variety  of  subjects,  pcarticnlaiiy  with  implied 
terms  and  usage  (s.  55),  right  of  action  (s.  57),  and  sales  by  auction  (s.  58). 
Sec.  61  reserves  the  rules  in  bankruptcy  and  also  the  rules  of  the  common 
law  where  not  inconsistent  with  the  Act.  Among  the  common  law  rules 
thus  saved,  express  mention  is  made  of  the  lav/  of  principal  and  agent,  and 
the  effect  of  fraud,  misrepresentation,  coercion,  and  mistake.  Securities  are 
excepted  from  the  operation  of  the  Act  (s.  61  (4)),  and  the  landlord's 
hypotliec  or  sequestration  for  rent  in  Scotland  is  reserved  (s.  61  (5)). 

The  rule  of  sec.  55  as  to  implied  terms,  follows  the  maxim  Expressum 
facit  ccssare  taciturn.  In  a  consensual  contract  such  as  sale  of  goods,  all 
unplications  of  law  must  give  way  to  tlie  agreement  of  parties  where  such 
agreement  is  not  illegal.  On  the  other  hand,  it  is  equally  true  that  express 
agreement  does  not  exclude  implications  of  law  in  so  far  as  these  are  not 
reached  or  affected  by  the  agreement  (Smith,  1842,  4  Beav.  503,  per  Ld. 
Langdale,  M.  R.,  at  505  ;  Douglas,  1895,  23  E.  163).  Among  the  implications 
oi  law  set  forth  in  the  Act  are  implied  conditions  and  warranties  (ss.  12  to 


SALE  55 

15),  the  effect  of  tlio  rules  for  ascertaining  intention  as  to  passing  the 
property  (s.  18),  and  the  rights  of  the  unpaid  seller  (s.  39).  To  render  a 
seller  liable  in  express  warranty  it  is  not  necessary  to  use  the  ^yords  "I 
warrant."  "It  is  quite  enough,  for  example,  that  the  purchaser  says  he 
wishes  a  horse  for  a  particular  purpose,  and  that  the  seller  says  the  horse 
will  suit  for  that  purpose"  {Scott,  1857,  20  D.  253,  per  Ld.  Cowan,  at  257  ; 
but  see  Eose,  1878,  5  E.  600,  per  Ld.  J.-Cl.  Moncreiff,  at  603.  In  general 
illustration,  see  Paslcy,  1789,  3  T.  K.  51 ;  Steicart,  1863,  1  M.  525  ;  Gardiner, 
1880,  7  E.  ^12;  Strange,  1894,  11  Sh.  Ct.  Eep.  49). 

In  regard  to  course  of  dealing  and  usage  (s.  55),  the  former,  if  between 
the  parties,  forms  a  case  of  particular  as  opposed  to  general  usage,  but  it 
must  be  between  the  parties  themselves  (see  Ford,  1841,  2  M.  &  G.  549  ; 
Bourne,  1844,  11  CI.  &  Fin.  45;  Cumming,  1860,  5  H.  &  K  95).     A  mere 
practice  of  one  of  the  parties  to  deal  generally  in  the  market  in  a  certain 
manner  will  not  negative  or  vary  an  implication  of  law  {Mackenzie,  1856,  16 
J).  129  ;  affd.  H.  L.,  3  Macq.  22).    "  General  usage  can  only  be  proved  by  the 
multiplication  of  particular  usages  "  {Mackenzie,  v.s.,  per  Ld.  Chan.  Cranworth, 
3  Macq.  at  27;  see  also  Caldcr,  1831,  9  S.  777;  affd.  5  W.  S.  410;  Gibson, 
1876,  Guth.  Sel.  Ca.  Shf.  Ct.  ii.  517).    A  proof  of  what  generally  happens  is 
not,  by  itself,  a  proof  of  usage  {Brown,  1876,  3  E.  788,  per  Ld.  Gifford). 
Where  evidence  of  usage  is  competent,  it  must  be  usage  such  as  is  generally 
understood  and  acted  on.     "  The  proof  must  be  satisfactory  and  the  usage 
proved  must  Ije  sufficient,  for  proof  of  a  divided  usage  will  not  sustain  a 
judgment"  {Armstrong,  1875,  2  E.  339,  per  Ld.  Ardmillan,  at  343).     In 
terms  of  sec.  55,  the  usage  must  be  "  such  as  to  bind  both  parties  to  the 
contract,"  i.e.  it  must  either  be  actually  within  the  knowledge  of   both 
parties,  or  such  that  tlie  law  will  presume  knowledge  on  the  yiart  of  both 
{Rolinson,  1875,  7  II.  L.  802;  Kirchner,  1859,  12  Moo.  P.  C.  361 ;  Holman, 
1878,  5  E.  657,  per  Ld.  Tres.  Inglis,  at  671).    Proof  of  usage  may  be  of  import- 
ance in  questions  regarding  ready-money  sales.     Tluis  where  a  buyer  was 
sued  for  the  price  of  sheep  and  cattle  bought  at  a  public  market  and  taken 
away  by  him,  he  was  allowed  proof  of  usage  in  order  to  establish  a  pre- 
sumption in  support  of  his  averment  of  payment  on  delivery  {Stewart,  1831, 
9  S.  466  ;  see  also  Arnot,  1825,  4  S.  4).     Put  the  plea  was  not  allowed 
where   tlie   buyer   first   denied   delivery,  and   after   delivery  was   proved, 
pleaded  the  usage  of  public  market  {Kidd,  1828,  6  S.  825).     A  distinction  is 
to  be  taken  between  usage  which  requires  to  be  proved  as  a  matter  of  fact, 
and  usage  which  has  been  judicially  recognised,  and  may  be  acted  upon  by 
the  Courts  without  proof.     "  Where  a  trade  has  been  long  establislied,  its 
customs  become  known  to  the  law  and  are  judicially  taken  notice  of  as  a 
matter  of  law  "  (Plackljurn,  Sale,  80).     See  further  as  to  the  general  eii'ect 
of  u.sage,  Lombc,  1779,  Mor.  5627;  MEachern,  1824,  2  S.  724;  JBurhidgc, 
1832,  10  S.  520;   JVcar,  1873,  Guth.  Sel.  Ca.  Shf.  Ct.  i.  513;  Marston,  1879, 
6  E.  898. 

Sec.  58  deals  with  sales  by  auction.  For  the  general  law  of  this  subject, 
see  Auction  ;  Auctioneer  ;  Articles  of  Eoup. 

The  provision  as  to  payment  into  Court  in  Scotland  (s.  59)  is  intended  to 
guard  against  tlio  abuse  of  the  alter  native  remedy  given  to  tlie  buyer  in 
Scotland  by  soc.  11  (2).  Probaljly  the  section  is  declaratory  of  the 
previously  existing  law  of  Scotland,  which  seems  to  have  differed  frnm  that 
of  England  in  allowing  the  Court  a  discretion  in  every  case  to  order  con- 
signation. But  tlic  law  was  not  clear,  and  it  was  sometimes  practically 
negatived,  e.g.  in  Finding,  1846,  5  I'dl's  A]]x  105,  where  the  Court  of 
Session  ordered  consignation  but  the  Hou.'ic  of  Lords  reversed. 


56  SALE 

The  various  branches  of  law  saved  or  reserved  by  sec.  61  (1)  (2)  (3)  are 
dealt  with  in  separate  articles.  See  Bankruptcy  ;  Agency  ;  Principal  and 
Agent;  Fraud;  Oiiioumvention;  Extortion;  Error;  Bill  of  Sale. 

The  effect  of  the  exclusion  of  securities  (s.  61  (4))  has  been  incidentally 
dealt  with  throughout  this  article. 

Sec.  61  (5),  as  to  landlord's  hypothec  in  Scotland,  re-enacts  sec.  4  (now 
repealed)  of  the  Mer.  Law  Amend.  Act,  1856.  The  original  provision  formed  a 
qualitication  of  tlie  buyer's  right  under  sec.  1  of  that  Act  (also  now  re- 
pealed) to  demand  delivery  as  against  the  seller's  creditors.  An  ordinary 
creditor  of  the  seller  could  not  prevent  delivery  to  the  buyer  upon  payment 
of  the  price,  but  the  right  of  the  landlord  in  virtue  of  his  hypothec  was 
superior  to  that  of  the  buyer.  Similarly,  under  this  Act,  though  the 
property  in  goods  sold  has  passed  to  the  buyer,  his  right  must  yield  to  that 
of  the  seller's  landlord  where  hypothec  exists. 

IV.  Sale  of  Incorporeal  Moveables. 

The  Sale  of  Goods  Act  does  not  apply  to  incorporeal  moveables  or  money 
(see  sec.  62  (1)),  and  therefore  sales  of  incorporeal  moveables,  like  sales  of 
heritage,  continue  to  be  regulated  without  regard  to  the  changes  introduced 
by  that  Act.  Incorporeal  moveables  are  such  non-tangible  rights  as  do  not 
relate  directly  to  what  is  corporeally  heritable  (see  Heritable  and  Move- 
able). They  comprehend  "  all  jura  ad  res,  the  jus  exigendi  in  all  obligations, 
and  though  incapable  in  one  sense  of  possession,  they  are  vested  by  the 
completion  of  the /us  exigendi"  (Bell,  Prm.  s.  1338).  They  include  debts 
(Ersk.  ii.  2.  9)  and  other  rights  of  action  (except  real  action) ;  shares  in  a 
private  partnership ;  shares  or  stock  of  a  public  company  (Ersk.  ii.  2.  8) ; 
and  rights  connected  with  patents,  copyrights,  and  trade  marks. 

Formation  of  the  Contract. — In  regard  to  the  constitution  of  the  contract 
of  sale,  the  writer  has  not  observed  any  clear  enunciation  of  a  distinction 
between  the  principles  applicable  to  different  kinds  of  incorporeal  moveables, 
yet  such  a  distinction  seems  to  exist.    It  is  said  that  "  writing  is  essential  to 
the  transmission  of  incorporeal  rights  although  relating  only  to  moveables  " 
(Dickson,  Evidence,  s.  560) ;  but  this  may  mean  either  that  a  verbal  contract 
for  the  transmission  of  an  incorporeal  moveable  right  l)y  way  of  sale  is 
altogether  ineffectual  even  as  between  the  parties  themselves,  or  that  an 
active  or  executive  title  vesting  the  buyer  in  the  right  cannot  be  effected 
without  writing.     In  the  former  case,  writing  is  necessary  to  the  constitu- 
tion of  the  contract,  as  in  the  sale  of   heritage.      Without  writing,  the 
contract  is  void  ;  there  is  locus  i^cenitcntiai  to  both  parties,  and  either  may 
resile  without  penalty.     In  the  latter  case,  a  personal  contract  may  exist 
without  writing,  but  the  subject  of  sale  is  not  transferred  without  delivery, 
which   can   only  be  effected   by  writing,  with  or  without  registration  or 
intimation.     A  mere  jus  exigendi,  such  as  a  pecuniary  debt  or  the  presta- 
tions of  an  innominate  contract,  seems  to  belong  to  the  former  class,  while 
incorporeal  personal  property,  such  as  shares  in  a  partnership  or  company, 
or  riglits  in  patents,  copyrights,  and  trade  marks,  belongs  to  the  latter  class. 
An  illustration  may  be  taken  from  the  history  of  sliipping  law,  in  which 
there   has   been   a   distinct   advance   from   the    one    class    to    the    other. 
Formerly,  the  statutory  regulations  were  so  strict  that  without  writing 
there  was  no  contract  (>S))e?ice,  20  Jan.  1809,  F.  C. ;  Leitch,  20  May  1819, 
F.  C. ;  Galder,  1824,  3  S.  253;  M Arthur,  1844,  6  I).  1174;  Ord,  1846,  8  D. 
1011).     More  recently,  however,  equitable  interests  have  been  recognised, 
and  although  no  title  can  be  completed  without  writing  and  registration, 


SALE  57 

there  may  be  a  valid  personal  contract,  which,  in  terms  of  sec.  3  of  the  Sale 
of  Goods  Act,  may  be  made  in  writing  or  by  "  word  of  mouth "  (see 
Merchant  Shipping  Act,  1894,  ss.  5  (ii.)  and  57  ;  Duthic,  1893,  20  E.  241). 
A  further  illustration,  more  to  the  point  (the  subject  being  an  incorporeal 
moveable),  is  to  be  found  in  the  statutory  law  of  patents.  Here,  also,  there 
has  been  a  relaxation  and  an  admission  of  equitable  or  beneficial  interests 
(cf.  15  &  16  Vict.  c.  83,  s.  35,  with  46  &  47  Vict.  c.  57,  s.  87 ;  see  Patent). 
On  the  other  hand,  an  innominate  contract  or  mere  nomen  debiti  is  not  only 
incapable  of  being  transferred  without  a  written  assignation,  but  a  verbal 
contract  for  its  sale  creates  no  legal  obligation.  There  is  a  clear  distinction 
between  a  sale  of  the  jus  crcclUi  under  an  obligation  of  this  nature,  and  a 
sub-sale  of  the  subject  of  the  obligation.  The  subject  of  sale,  if  tangible 
{e.g.  grain),  can  be  sold  by  a  verbal  contract  of  sale  or  sub-sale ;  Init  where 
the  subject  is  a  right  to  obtain  delivery  of  grain,  it  cannot  be  effectually 
sold  without  writing.  An  attempted  verbal  sale  of  such  a  right,  even  if 
entered  into  in  a  formal  manner  by  "joining  hands  across  a  table  in 
presence  of  a  company,"  does  not  exclude  locus  ^mnitentice  {Clark,  1819,  6 
Pat.  422).  It  is,  however,  a  matter  of  daily  experience  that  valid  personal 
contracts  for  the  sale  of  shares  in  a  joint-stock  company  may  ])e  entered 
into  verbally,  though  the  buyer  obtains  no  vested  right  until  a  formal 
transfer  has  been  executed  and  registered  in  the  books  of  the  company 
{Drummond,  1834,  12  S.  949;  Padt,  1859,  21  1).  965;  Watson,  1841,  3  D. 
424;  Wilsoji,  1856,  18  D.  673).  Tbe  case  of  Lau-son,  1699,  Mor.  8402,  is 
sometimes  cited  as  a  contrary  instance  (Dickson,  Evidence,  s.  560) ;  but 
though  there  are  loose  expressions  in  the  report,  and  the  Court  does  not 
seem  to  have  been  guided  by  any  distinct  principle,  the  judgment  itself 
amounts  to  no  more  than  a  denial  of  si)ecific  implement,  which  belongs  to 
another  branch  of  the  law  of  sale.  To  decree  repayment  of  earnest,  as  was 
done  in  the  case  referred  to,  is  not  inconsistent  with  a  void  contract,  for  it 
may  have  proceeded  on  the  principle  of  condictio  indebiti  (P)ell,  Prin.  ss. 
531,534);  but  the  judgment  went  furtlier,  and  awarded  damages  against 
the  party  failing  to  implement  the  bargain.  Such  an  award  implies  a 
breacii  of  contract,  and  therefore  an  existing  contract  capable  of  being 
broken.  The  phrase  locus  2'>oenitentia^,  freely  used  in  connection  with  the 
case,  is  a  misapplication  of  a  well-known  legal  doctrine. 

in  other  matters  connected  with  tlie  formation  of  the  contract,  the 
ordinary  rules  of  law  will  hold.  Thus  where  there  was  a  written  contract 
for  the  sale  of  a  share  of  a  testamentary  succession,  alleged  verbal  condi- 
tions were  lield  inrai)al>le  of  proof,  and  tlie  ])rice  was  decerned  for 
{Pattinson,  1846,  5  liell's  Ajtp.  259).  No  intimation  is  necessary  (as  in  the 
case  of  a  debt)  to  com])lete  tbe  transference  to  a  buyer  of  a  share  in  a 
partnership  ( liussr II,  lS:n,  5  W.  S.  256).  Copyriglit  is  eilectually  trans- 
ferred by  an  ordinary  conveyance,  provided  the  suljsequent  statutory 
re![uisites  are  observed  {Orr's  Tr.,  1870,  8  M.  9:50).  Where  the  constitution 
of  a  joint-stock  concern  ])rescribes  certain  formalities  as  necessary  to  vest 
a  buyer  in  the  property  of  shares,  these  must  be  observed,  but  their  al)sencc 
does  not  V(jiil  the  contract  as  between  the  parties  tliemHelvcs  (  Wmtlierly, 
1824,  3  S.  92;  East  Lothian  Bank,  1824,  3  S.  95;  Mar  Andrew,  1828,  6  S. 
950).  Furtlier,  the  coiiij)any  may  waive  the  conililion  so  as  to  render  the 
buyer  liable  in  the  obligations  of  a  sharehold<T  (/>V//,  bS.'la,  ].")  S.  920). 
In  the  case  of  a  purchase  of  shares  made  through  a  broker,  the  usual  rules 
of  agency  apply  {Dickson,  1849,  12  1).  .",06;  Plarl;  1851,  V.\  I).  1114,  15  \). 
046;  Newton,  1884,  11  \i.  554).  Where  an  inrorporeal  moveable  is  sold 
by  auction,  it   is  jus  tcrtii  for  an   unsuccessful   bidder   to   found  upon  a 


58  SALE  OF  FOOD  AND  DEUGS  ACTS 

dispute  between  seller  and  buyer  as  to  the  terms  of  the  contract  {Paton, 
1889,  17  K.  52).  A  right  of  x^re-emption  by  a  company  of  its  shares  is  not 
discharged  by  implication  from  a  correspondence  ;  there  must  be  a  definite 
olfer  {Gihson-Craig,  1848,  10  D.  576).  The  ordinary  rules  of  law  as  to  the 
effect  of  fraudulent  concealment,  error,  etc.,  apply  to  sales  of  incorporeal 
movealdes  {Keith,  1832,  10  S.  514,  824;  Broion,  1834,  12  S.  536;  Graham, 
1852,  15  D.  165;  GihU,  1875,  4  E.  630;  Phosphate  Sewage  Co.,  1876,  3  E. 
H.  L.  77).  The  sale  of  outstanding  debts  in  a  sequestration  is  regulated  by 
the  Bankruptcy  Act,  1856,  s.  136.  See  as  to  the  sale  of  outstanding  debts 
of  a  partnership,  Young,  1830,  9  S.  59,  and  as  to  what  are  included  under 
the  term  "  book-debts,"  Alexander,  1896,  23  E.  724. 

Performance  of  the  Contract. — Under  this  head  it  is  only  necessary  to 
remind  the  reader  that  incorporeal  moveables  do  not  fall  under  the  Sale  of 
Goods  Act,  and  that  sales  are  therefore  not  subject  to  the  drastic  changes 
in  the  law  of  Scotland  introduced  by  that  Act.  Incidental  reference  has 
been  made  to  the  mode  in  which  incorporeal  moveables  are  transferred  and 
the  right  of  the  buyer  completed,  but  for  fuller  explanation,  see  Assignation  : 
see  also  Edinlurgh  Breweries  Ltd.,  1894,  21  E.  H.  L.  10,  as  to  the  title  of  a 
second  buyer  to  sue  a  reduction  of  the  original  contract,  and  Hoivie,  1848, 
10  D.  355,  as  to  the  measure  of  damages  for  breach  of  a  contract  for  the 
sale  of  shares. 


SaSc   of    Food    and    Drugs   Acts.— Prior  to  i860,  the 

efforts  of  the  Legislature  to  protect  the  public  against  the  offence  of  adulter- 
ating food  were  restricted  to  a  few  specific  articles  of  food,  e.g.  bread,  tea, 
and  coffee.  In  that  year  an  Act  was  passed  which  sought  to  deal  compre- 
hensively with  the  adulteration  of  all  articles  of  food  and  drink ;  and  in 
1868  its  provisions  were  extended  to  medicines.  These  statutes  were 
repealed,  and  re-enacted  in  an  improved  form  by  the  Sale  of  Food  and 
Drugs  Act,  1875,  which,  together  with  the  Sale  of  Food  and  Drugs  Act 
Amendment  Act,  1879,  is  of  universal  application. 


I.  Geneeal  Provisions  against  Adulteration. 

The  Sale  of  Food  and  Drugs  Act,  1875  (38  &  39  Vict.  c.  63),  as  amended 
by  the  Sale  of  Food  and  Drugs  Act  Amendment  Act,  1879  (42  &  43  Vict. 
c.  30),  applies  to  every  article  used  for  food  or  drink,  except  drugs  or  water, 
and  to  every  drug,  which  includes  medicine  for  internal  or  external  use  (s.  2). 

It  does  not  apply  to  articles  not  themselves  food,  but  which  are  used  in 
the  preparation  of  food,  e.g.  baking-powder  {James,  [1894]  1  Q.  B.  304). 

Apijointment  of  Ancdysts. — The  duty  of  appointing  analysts  for  their 
respective  districts  is  imposed,  in  counties,  upon  the  County  Council,  and 
in  burghs,  i.e.  royal  or  parliamentary  burghs,  upon  the  Commissioners  or 
Boards  of  Police,  or  in  their  absence,  upon  the  Town  Council.  Such 
appointment  is  imperative  when  required  by  the  Secretary  for  Scotland, 
whose  approval  is  necessary  both  in  appointment  and  removal.  The 
analyst,  whose  salary  is  matter  of  mutual  agreement,  may  not  be  engaged- 
in  the  sale  of  food  or  drugs  within  his  district  (ss.  10,  33  (6);  L.  G.  Act, 
1889,  s.  11  (1);  Secy,  for  Scotland  Act,  1885,  s.  5).  A  Town  Council 
may  appoint  the  analyst  of  a  neighbouring  burgh,  or  of  tlie  county  in 
which  their  burgh  is  situate,  during  such  time  as  they  may  think  fit 
(s.  11). 

The  purchaser  of  any  article  of  food  or  drug  is  entitled  to  have  the 


SALE  OF  FOOD  AXD  DEUGS  ACTS  59 

same  analysed  by  the  analyst  of  tlie  district  at  a  fee  not  exceeding  10s.  6d., 
or  where  there  is  no  analyst,  by  the  analyst  of  another  district,  for  an 
ao-reed-on  fee,  and  to  receive  a  certificate  of  the  result  of  such  analysis 
(s°  12). 

Ojfences. — (1)  It  is  an  offence  to  mix,  colour,  stain,  or  powder  any  article 
of  food  with  any  material,  so  as  to  render  it  injurious  to  health,  with  intent 
that  it  may  be  sold  in  that  state  ;  to  order  or  permit  such  mixing,  etc. ;  or 
to  sell  any  article  so  mixed.  The  penalty  for  a  first  offence  is  £50 ;  on 
subsequent  conviction,  six  months'  hard  labour  (s.  3). 

Tlie  mixing,  colouring,  etc.,  of  drugs,  so  as  to  affect  injuriously  their 
quahty  or  potency  (except  for  the  purpose  of  compounding,^  as  after 
mentioned),  is  forbidden  in  similar  terms,  and  with  like  penalties  (s.  4). 
But  in  both  cases  it  is  a  good  defence,  that  the  respondent  was  ignorant, 
and  could  not  with  reasonable  diligence  have  known  of  the  adulteration 
(s.  5). 

(2)  It  is  an  offence,  punishable  with  a  penalty  of  £20,  to  sell  to  the 
prejudice  of  the  purchaser  any  food  or  drug  which  is  not  of  the  nature, 
substance,  and  quality  demanded ;  but  the  following  are  defences  open  to 
the  respondent:  (1)  That  a  non-injurious  ingredient  has  been  added 
which  is  necessary  to  prepare  the  article  for  carriage  or  consumption,  and 
not  fraudulently  to  increase  its  bulk,  weight,  or  measure,  or  to  conceal  its 
inferior  quality ;  (2)  that  the  article  is  a  proprietary  or  patent  medicine, 
and  is  supjilied  according  to  the  specification  of  the  patent ;  (3)  that  it  is 
compounded  as  mentioned  in  the  Act]  or  (4)  that  it  is  unavoidably  mixed 
with  extraneous  matter  in  the  process  of  collection  or  preparation  (s.  6). 
It  is  now  settled  by  statute  that  it  is  no  defence  to  a  complaint  under  this 
section,  that  the  purchaser,  having  bought  only  for  analysis,  was  not 
prejudiced ;  nor  that  the  article,  tliougli  defective  in  nature  or  substance 
or  quahty,  was  not  defective  in  all  three  respects  (F.  &  D.  Act,  1879,  s.  2). 

In  prosecutions  under  sec.  6,  the  issue  is  usually  whether  the  article 
complained  of  is  "of  the  nature,  substance,  and  quality"  demanded.  That 
is  a  question  of  fact  for  the  jvidge,  and  not  for  the  analyst,  and  his  report 
must  therefore  contain  not  only  his  opinion  that  the  article  has  been 
adulterated,  but  must  state  the  grounds  of  his  opinion.  If,  upon  considera- 
tion of  the  report  and  other  evidence  (if  any),  the  judge  is  of  opinion  that 
the  article  is  not  "of  the  nature,  substance,  and  quality"  demanded,  he 
ought  to  convict  {Mctclcod,  1882,  4  Coup.  029). 

As  prosecutions  for  adulteration  of  food  are  now  most  commonly 
brought  under  this  section,  it  has  frequently  l»cen  the  sul)ject  of  judicial 
interpretation.  The  following  points  may  be  noted  :  The  offence  of  selling 
an  adulterated  article  to  the  prejudice  of  the  purchaser  is  connnitted  where 
tlie  article  is  unadulterated  but  wholly  different  from  that  demanded 
{Knifjht,  1885,  14  Q.  B.  D.  845);  or  where  the  seller  is  unaware  that  th.e 
article  is  not  of  the  nature,  substance,  and  quality  demanded  {Lrtts,  1888, 
20  Q.  B.  1).  771).  A  servant  may  be  convicted  (lIotcMn,  [1891]  2  (^  B. 
181).  Where  there  is  no  recognised  standard  of  quality,  it  is  not  an 
offence  to  sell  at  a  low  price  an  inferior  quality  of  the  article  demanded^ 
undiluted  with  any  foreign  substance  {Morton,  1881,  4  Coup.  457).  (See 
also  Warnock,  1881,  4  Coup.  509,  and  Bavfjic,  1884,  11  II.  (J.  C.)  37,  in 
illustration  of  this  section.) 

The  F.  &  I).  Act,  1879,  s.  2,  legalises  the  dilution  of  spirits  to  the 
extent  of  25  degrees  under  proof  in  the  case  of  l»ran(ly,  whisky,  and 
rum,  and  35  degrees  in  the  case  of  gin.  Where  gin  was  sold  with  a  linger 
admixture  of  water  tlian  here  authorised,  and  the  purchaser  had  notice  of 


60  SALE  OF  FOOD  xVND  DEUGS  ACTS 

the  dilution,  the  defence  that  the  sale  was  not  "  to  the  prejudice  of  the 
piu'chaser"  was  sustained  {Gage,  1883,  10  Q.  B.  D.  518). 

(3)  It  is  an  oftence,  punishable  with  a  penalty  of  £20,  to  sell  any 
compound  article  of  food,  or  coni])ounded  drug,  which  is  not  composed 
according  to  the  purchaser's  demand  (s.  7). 

The  sale  of  an  article  mixed  with  non-injurious  matter,  without  intent 
fraudulently  to  increase  its  bulk,  etc.,  or  conceal  its  inferior  quality,  is  not 
an  offence,  provided  the  seller  inform  the  purchaser,  by  a  label  printed  on 
or  with  the  article,  that  the  same  is  mixed  (s.  8).  Other  means  of  inform- 
ing the  purchaser  may  be  held  sufficient,  e.g.  a  notice-board  {Sandys,  1878, 
3  Q.  B.  D.  449). 

Where  the  fact  of  an  article  having  been  sold  in  a  mixed  state  is 
proved,  the  burden  of  proving  any  exception  allowed  by  the  Act  rests  upon 
the  respondent  (s.  24). 

(4)  It  is  an  offence  to  abstract  from  an  article  of  food  any  yjart  of  it  so  as 
to  affect  injuriously  its  quality,  substance,  or  nature,  with  intent  that  it  may 
be  sold  without  disclosure ;  or  to  sell  any  article  so  altered  without  dis- 
closure (s.  9).  The  offence  of  selling  an  article  so  altered  may  be  com- 
mitted without  the  seller's  guilty  knowledge  or  intent  {Pain,  1890,  24 
Q.  B.  D.  353 ;  Dyke,  [1892]  1  Q.  B.  220 ;  Spiers,  [189G]  2  Q.  B.  65).  Where 
in  pursuance  of  a  contract  to  supply  a  quantity  of  milk  it  was  forwarded  in 
separate  vessels,  a  separate  complaint  and  conviction  under  this  section 
were  held  competent  in  respect  of  a  sample  taken  from  each  vessel  {Fccitt, 
[1891]  2  Q.  B.  304). 

In  any  prosecution  under  the  Act,  the  respondent  may  prove  as  a 
defence  that  he  purchased  the  article  as  the  same  in  nature,  substance, 
and  quality  as  tiiat  demanded,  and  with  a  written  warranty  to  that  effect ; 
that  he  had  no  reason  to  believe  at  the  time  of  sale  that  the  article  was 
otherwise,  and  that  he  sold  it  unaltered :  but  he  will  be  liable  m  costs 
unless  he  give  notice  of  such  defence  (s.  25).  An  invoice  in  ordinary  form 
is  not  a  warranty  {Roolc,  1878,  3  Ex.  D.  209).  Kor  is  a  contract  for  a  daily 
supply  of  "  good  and  pure  milk "  a  warranty  of  the  quality  of  the  milk 
delivered  on  a  particular  day  {Harris,  1883,  12  Q.  B.  D.  97).  The  defence 
allowed  by  this  section  is  not  pleadable  by  a  servant,  who  is  not  himself 
the  purchaser  {Hotchin,  supra). 

(5)  The  crime  of  forging  or  uttering  any  certificate  or  warranty,  knowing 
it  to  be  forged  for  the  purposes  of  the  Act,  is  punishable  with  two  years' 
imprisonment  with  hard  labour ;  and  the  following  are  offences  punishable 
with  a  penalty  of  £20 :  to  wilfully  apply  to  any  article  a  certificate  or 
warranty  applying  to  any  other  article ;  to  give,  whether  as  principal  or 
agent,  a  false  warranty  in  writing  in  respect  of  any  article  sold;  or  to 
wilfully  give  a  label  falsely  describing  an  article  sold  (s.  27).  Ignorance 
that  the  warranty  is  false  is  a  good  defence  {Derbyshire,  [1897]  1  Q.  B. 
772). 

Proceedings  to  Obtain  Analysis. — Any  medical  officer,  or  other  officer 
under  directions  of  the  local  authority  appointing  him,  or  charged  with 
execution  of  the  Act,  may  procure  any  sample  of  food  or  drugs,  and  if  he 
suspect  tlie  same  to  have  been  sold  to  him  contrary  to  the  Act,  must 
submit  it  to  the  district  analyst,  or  if  there  bo  none,  to  the  analyst  of 
another  district.  The  analyst,  on  receiving  payment  as  in  sec.  12,  must 
analyse  the  article,  and  give  a  certificate  of  tlie  result  thereof  to  the  officer 
(s.  13).  The  purchase  may  be  made  by  the  officer's  assistant  (Macaidav, 
1893,  3  White,  464).  ^ 

The   V.   &   1).   Act,   1879    (s.    3),  authorises   such   officer   to   procure 


SALE  OF  FOOD  AKD  DEUGS  ACTS  61 

for  analysis  at  the  place  of  deliveiy  any  sample  of  milk  in  course 
of  delivery  to  the  purchaser  under  any  contract,  under  the  provisions  of 
sec.  13  of  the  principal  Act,  and  to  recover  the  penalties  thereunder. 
Eefusal  to  sell  to  the  officer  the  required  quantity  of  milk,  or  of  any  article 
exposed  for  sale  in  shop  or  open  street,  is  punishable  with  a  penalty  of 
£10  (s.  17 ;  F.  &  D.  Act,  1879,  ss.  4,  5). 

The  purchaser  must,  after  purchase,  notify  to  the  seller  or  his  ao-ent 
his  intention  to  have  the  article  analysed  by  the  public  analyst,  and  must 
offer  to  divide  it  into  three  parts,  to  be  then  and  there  separated  and 
sealed  up.  If  required,  he  must  deliver  one  of  the  parts  to  the  seller, 
retaining  one  part,  and  may  submit  the  third  for  analysis. 

These  provisions  apply  whether  the  purchaser  is  a  private  person  or 
a  public  officer  (Parsons,  1882,  9  Q.  B.  D.  172) ;  they  must  be  observed, 
even  if  the'seller  admits  the  offence  at  the  time  (Smart,  [1895]  1  Q.  B.  219) ; 
and  intimation  that  the  purchaser  intends  to  submit  the  sample  "  to  the 
public  analyst "  is  essential  (Barnes,  1878,  3  Ex.  D.  176).  But  they  do 
not  apply  to  a  public  officer  obtaining  a  sample  of  milk  under  sec.  3  of 
the  F.  &  D.  Act,  1879,  and  he  is  not  bound  to  notify  his  intention  of 
submitting  it  for  analysis  (Morton,  1896,  2  A.  174).  Nor  is  it  necessary  to 
submit  the  whole  of  the  sample  (Bolfe,  [1892]  2  Q.  B.  196). 

If  the  seller  do  not  accept  the  purchaser's  offer  to  divide  the  article, 
the  analyst  must  divide  it  into  two  parts,  sealing  up  and  giving  one  to  the 
purchaser  to  be  retained  in  case  of  further  proceedings  (s.  15).  Where  the 
analyst  lives  more  than  two  miles  from  the  purchaser's  residence,  the 
sample  may  be  sent  by  post  (s.  16). 

The  analyst's  certificate  must  be  in  the  form  set  forth  in  tlie  schedule, 
or  to  the  like  effect  (s.  18).  It  should  state  such  facts  as  will  enable  the 
judge  to  determine  whether  the  article  has  been  adulterated,  not  merely  his 
opinion  to  that  effect  (Ncivhy,  [1894]  1  Q.  B.  478 ;  Fortune,  [1896]  1  Q.  B. 
202 ;  Bridrje,  [1897]  1  Q.  B.  80). 

The  certificate  is  declared  to  be  sufficient  evidence  of  tlic  facts  stated 
therein,  uidess  the  respondent  require  the  analyst  to  l)e  called  as  a  witness 
(s.  21).  But  it  is  not  necessarily  conclusive,  even  where  the  respondent 
leads  no  rebutting  evidence  (i''?//c,  [1894]  1  A.  484);  still  less,  where  he 
gives  evidence  on  his  own  behalf  (Hewitt,  [1896]  1  Q.  B.  287). 

Every  analyst  must  make  a  quarterly  report  to  the  local  authority,  for 
transmission  to  the  Secretary  for  Scotland  (s.  19). 

Proceedings  against  Offenders. — Summary  proceedings  for  recovery  of 
penalties  may  be  taken  Ity  the  procurator-fiscal,  or  the  person  procuring 
the  analysis,  before  the  Sheriff  of  tlie  county,  or,  in  a  place  where  the 
Sherifl'  sits  as  a  police  magistrate,  in  the  police  court.  They  are  payable  to 
the  treasurer  of  the  county  general  assessment  or  Ijurgh  police  assessment 
(ss.  20,  3;»).  Imjtrisonment,  in  terms  of  the  Summary  Procedure  Acts, 
may  follow  failure  to  |>ay ;  but  the  pul)lic  ])rnsccutor  cannot  recover 
expenses  (Mackirdg,  [1897]  2  A.  4-35). 

Tlie  complaint  must  be  served  within  a  reasonaljle  time,  and  in  the 
case  of  a  perishable  article,  within  twenty-eight  days  from  the  time  of 
purchase.  It  must  set  forth  ])articulars  of  the  offence  and  tlie  name  of  the 
prosecutor,  and  in-oceeds  on  not  less  than  seven  days'  inducicu  (F.  &  1).  Act, 
1879,  s.  10).  The  respondent,  if  brought  sooner  into  Court,  is  not  bound 
to  accept  an  offer  of  adjournment  (Dunlop,  [1895]  1  A.  554).  Where 
.service  was  made  on  the  twenty-eighth  day  from  the  day  of  purchase,  it 
was  held  timcous  (Freic,  [1897]  2  A.  267). 

A  summons  in  the  form  provided  by  the  Burgh  Police  Act,  1892,  but 


62  SALE  OF  FOOD  AND  DKUGS  ACTS 

Nvliicli  did  not  Lear  to  proceed  under  that  Act,  was  lield  irrelevant,  in 
respect  the  prosecutor's  name  was  not  set  forth  {Burns,  [1897]  2  A. 
308).  Omission  of  particulars  is  not  necessarily  fatal  to  the  complaint, 
but  entitles  the  respondent  to  an  adjournment  {Ncal,  [1894]  1  Q.  B.  544). 

Tlie  parts  of  the  articles  retained  by  the  purchaser  must  be  produced 
at  the  trial  (s.  21). 

The  Sherilf  hearing  any  complaint,  or  the  Court,  on  appeal,  may,  on 
request  of  either  party,  cause  any  article  to  be  sent  for  analysis  to  the 
Commissioners  of  Inland  Eevenue  (s.  22 ;  see  Daryie,  supra). 

Appeal. — Any  conviction  may  be  appealed  to  the  High  Court  of 
Justiciary  under  20  Geo.  ii.  c.  43  (s.  33  (11)).  But  the  mode  now 
commonly  adopted  is  by  appeal  on  stated  case,  under  the  Summary 
Prosecutions  Appeals  Act,  1875. 

Proceedings  by  indictment  or  otherwise,  and  contracts  are  not  affected 
by  the  Act.  In  any  action  for  breach  of  contract,  the  pursuer  may 
recover  the  amount  of  penalty  and  costs  incurred  by  him,  if  he  prove  that 
the  article  was  sold  to  him  as  of  the  same  nature,  substance,  and  quality 
as  that  which  was  demanded  of  him,  that  he  purchased  it  not  knowing  it 
to  be  otherwise,  and  sold  it  unaltered ;  but  the  defender  may  prove  that 
the  conviction  was  wrongful,  or  the  amount  of  costs  unreasonable 
(s.  28). 

Examination  of  Tea. — All  tea  imported  into  the  kingdom  is  liable  to 
examination  by  the  Customs  officers,  and  samples  may  be  taken  for 
analysis.  If  found  to  be  mixed  with  other  substances,  or  exhausted  tea 
{i.e.  tea  deprived  of  its  proper  strength),  the  sanction  of  the  Commissioners 
of  Customs  is  required  for  its  delivery ;  if  unfit  for  human  food,  it  may 
be  forfeited  (ss.  30,  31). 

The  expenses  of  executing  the  Act  fall,  in  counties,  upon  the  county 
general  assessment,  and  in  burghs,  upon  the  police  assessment  (s.  33  (7)). 

II.  Special  Acts  kegarding  Food. 

Margarine. — The  Margarine  Act,  1887  (50  &  51  Vict.  c.  29),  which  defines 
margarine  (s.  3)  as  any  substance,  compound  or  otherwise,  prepared  in 
imitation  of  butter,  whether  mixed  with  butter  or  not,  requires  every 
package  to  be  branded  "  Margarine  "  on  the  top,  bottom,  and  sides  in  printed 
capitals  three-quarters  of  an  inch  square.  Every  parcel  exposed  for  retail 
sale  must  bear  a  label  so  marked  in  printed  capitals  one  and  a  half  inch 
square ;  and  every  retail  quantity  not  sold  in  such  package  must  be 
delivered  with  a  paper  wrapper  labelled  "  Margarine  "  in  letters  a  quarter 
of  an  inch  square  (s.  6).  The  article  may  be  "  exposed  for  sale  "  although 
wrapped  in  paper  {Wheat,  [1892]  1  Q.  B.  418).  Other  matter  may  be 
printed  on  the  wrapper,  provided  that  is  not  done  so  as  to  evade  the 
statute  {Fyfe,  [1893]  1  A.  74). 

It  is  an  offence  to  sell,  or  expose,  or  have  for  purpose  of  sale, 
margarine  contrary  to  the  Act;  unless  the  respondent  prove  that  he 
pm'chased  the  article  as  butter  with  a  written  warranty  or  invoice,  that  he 
had  no  reason  to  believe  at  the  time  of  sale  that  it  w^as  other  than  butter, 
and  that  he  sold  it  unaltered ;  but  he  will  be  liable  in  costs  unless  he  gave 
notice  of  this  defence  (s.  7). 

All  margarine  imported,  or  forwarded  in  any  public  conveyance,  must 
be  consigned  as  such ;  and  any  Customs  or  Eevenue  officer,  or  officer 
authorised  under  sec.  13  of  the  F.  &  D,  Act,  1875,  may  procure  samples 
for   analysis  from  any  package  (s.  8).     Any  such  officer,  without   going 


SALE  OF  FOOD  AND  DEUGS  ACTS  63 

through  the  form  of  purchase,  hut  otherwise  following  the  Act,  may  take 
samples  of  any  butter,  or  substance  purporting  to  be  butter,  exposed  for 
sale,  and  not  marked  margarine ;  any  such  substance  not  so  marked  beino- 
presumed  to  be  exposed  as  butter  (s.  10). 

Every  margarine  manufactory  must  be  registered  with  the  local 
authority  under  the  F.  &  D.  Act,  1875,  as  the  Secretary  for  Scotland 
may  direct,  otherwise  the  owner  or  occupier  is  guilty  of  an  oiience  (s.  9). 

The  penalty  for  a  first  offence  under  the  Act  is  £20,  a  second  offence 
£50,  and  a  subsequent  offence  £100  (s.  4). 

An  employer  charged  with  an  offence  may,  upon  information  duly  laid, 
have  any  other  person  whom  he  charges  as  the  actual  offender  brought 
before  the  Court ;  and  if  after  proof  of  the  offence  the  employer  prove  that 
he  used  due  diligence  to  enforce  the  Act,  and  that  the  other  person  com- 
mitted the  offence  without  his  knowledge,  the  latter  shall  be  convicted,  and 
the  employer  exempt  (s.  5). 

The  Court  may  dii'ect  part  of  any  penalty  to  be  paid  to  the  person 
proceeding  for  the  same  (s.  11). 

The  procedure  prescribed  by  sees.  12  to  28  of  the  F.  &  D.  Act,  1875, 
save  as  varied  by  this  Act,  must  be  observed  ;  and  all  officers  under  that 
Act  are  empowered  and  required  to  carry  out  the  provisions  of  the 
Margarine  Act  (s.  12). 

Beer. — By  48  &  49  Yict.  c.  51,  s.  8  (1),  the  adulteration  of  beer,  or  the 
addition  of  anything  thereto,  except  finings  for  clarification,  is  punishable 
with  a  penaltv  of  £50,  and  forfeiture. 

Bread— i\\Q  Bread  Act,  1836  (6  &  7  Will.  iv.  c.  37),  forbids  bread  to  be 
made  of  any  but  the  following  ingredients,  namely,  wheat,  barley,  rye, 
oats,  buckwheat,  Indian  corn,  peas,  beans,  rice,  or  potatoes,  with  salt,  water, 
eggs,  milk,  barm,  leaven,  potato  or  other  yeast,  under  a  penalty  of  £10 
(ss.  2,  8) ;  and  all  non-wheaten  bread  must  be  marked  "  M,"  under  a 
penalty  of  10s.  for  each  1  lb.  weight  so  made  or  sold  (s.  10). 

The  following  are  offences :  To  adulterate  fiour,  or  sell  flour  of  one 
sort  of  grain  as  that  of  another,  the  penalty  being  £20  (s.  9)  ;  to  keep  in  a 
baker's  or  miller's  premises  any  ingredient  for  adulteration,  the  penalty 
for  a  first,  second,  and  subsequent  offence  being  £10,  £5,  and  £10 
respectively  (s.  12);  or  to  obstruct  a  search  authorised  by  magistrate's 
warrant,  or  anyone  employed  in  execution  of  the  Act,  under  a  penalty  of 
£10  (ss.  11,  16).  The  penalties  are  payable  to  the  poor  of  the  place 
(s.  27). 

It  is  undei'stood  that  prosecutions  under  tliis  statute  are  now  of  very 
rare  occurrence,  the  provisions  of  the  F.  &  D.  Acts  affording  a  simpler 
remedy. 

Coffee  and  Tea. — By  the  Adulteration  of  Coffee  Act,  1718  (5  Geo.  i. 
c.  11),  the  use  of  water,  grease,  butter,  or  otlier  material  to  increase  tlie 
weight,  or  prejudice  the  quality  of  coffee,  is  punishable  with  a  fine  of  £20  ; 
and  any  trader  knowingly  Ijuying  or  selling  sucli  coffee  is  Hal  tic  in  a  similar 
fine — one  half  to  go  to  the  Crown,  the  other  half  to  the  informer  (s.  23). 

By  the  Adulteration  of  Tea  and  C(jffec  Act,  1724  (11  Geo.  i.  c.  30),  the 
fine  is  increased  to  £100  (s.  9),  and  is  further  im])osed  upon  anyone 
adulterating  tea  with  any  other  sul»stance  (s.  5). 

Further  penalties  were  enacted  by  4  Geo.  ir.  c.  14,  and  17  Geo.  ni.  c.  29, 
against  the  fabrication  of  tea  witli  the  leaves  of  other  plants,  the  staining 
of  such  leaves  so  as  to  resemble  tea,  or  tlic  possession  of  such  dyed  leaves, 
except  iov  some  lawful  purpose. 

To  these  may  be  added,  that  imitations  of  coffee  and  coffee  mixtures 


64      SALE  OF  HORSEFLESH,  ETC,  EEGULATION  ACT,  1889 

may  not  be  sold  except  in  |  lb.  packets,  labelled  with  a  duty  stamp,  and  a 
statement  of  the  substances  composing  the  mixture  (45  &  46  Vict.  c.  41, 

ss.  6,  7). 

III.  Special  Pkovisions  eegarding  Drugs. 

Poisons.— By  the  Pharmacy  Act,  1868  (31  &  32  Vict.  c.  121),  it  is 
unlawful  to  sell  any  poison  unless  the  name  thereof,  the  word  "  poison," 
and  the  name  and  address  of  the  seller  are  uj^on  the  wrapper  ;  or  to  sell 
any  of  the  scheduled  poisons  to  any  person  unknown  to  the  seller,  unless 
introduced  by  some  person  known  to»him. 

The  seller  must  enter  in  a  book  the  date,  the  name  and  quantity  of  the 
poison,  the  name  and  address  of  the  purchaser,  and  the  purpose  alleged  by 
him  for  requiring  it,  to  which  entry  the  purchaser  and  his  introducer,  if 
any,  must  affix  their  signatures.  The  penalty  for  neglecting  these  regula- 
tions (the  principal  being  liable  for  his  assistant)  is  £5  for  the  first,  and 
£10  for  a  subsequent  ofl'ence.  But  they  do  not  apply  to  wholesale  dealers, 
nor  to  legally-qualified  apothecaries  supplying  medicine  to  their  patients, 
nor  to  the  ingredients  of  any  medicine  dispensed  by  a  registered  chemist, 
provided  such  medicine  be  labelled,  as  above,  with  the  name  and  address  of 
the  seller,  and  the  ingredients  be  entered,  with  the  purchaser's  name,  in  a 
book  kept  by  the  seller  (s.  17). 

Arsenic. — By  the  Arsenic  Act,  1851  (14  Vict.  c.  13),  similar  precautions 
are  enacted  regarding  the  sale  of  arsenic,  which  includes  all  colourless 
poisonous  preparations  of  arsenic  (s.  6).  In  addition,  arsenic  before  sale 
must  be  mixed  with  soot  or  indigo  in  the  proportion  of  1  oz.  of  soot  or 
h  oz.  of  indigo  to  1  lb.  of  arsenic.  Where  the  purchaser  states  that  such 
admixture  would  render  it  unfit  for  his  purpose,  it  may  be  sold  unmixed, 
but  in  a  quantity  of  not  less  than  10  lbs.  (s.  3). 

The  penalty  for  selling  arsenic  contrary  to  the  Act,  or  giving  false 
information  to  the  seller,  or  falsely  signing  as  a  person  known  to  the 
purchaser,  is  £20  (s.  4).  The  Act  does  not  apply  to  arsenic  forming  part  of 
a  medicine  prescribed  by  a  qualified  practitioner,  or  to  wholesale  dealing 
upon  written  order  (s.  5).     See  also  Poison. 


Sale  of  Horseflesh,  etc.,  Regulation  Act,   1889 

(52  &  53  Vict.  c.  11). — The  sale  of  horseflesh  for  human  food  is  placed 
by  this  statute  under  strict  regulations,  which  are  here  summarised. 

"  Horseflesh  "  means  the  flesh  of  horses,  asses,  and  mules,  whether  cooked 
or  uncooked,  or  accompanied  by  or  mixed  with  any  other  substance  (s.  7). 

Offences. — It  is  an  offence  to  sell,  offer,  or  expose  for  sale  horseflesh  for 
human  food,  except  in  a  shop  which  exhibits  a  sign  in  letters  four  inches 
long  intimating  that  horseflesh  is  sold  (s.  1) ;  and  the  onus  of  proving 
that  any  horseflesh  exposed  for  sale  otherwise  than  in  such  shop  was  not 
intended  for  human  food,  rests  upon  the  respondent  (s.  6). 

It  is  likewise  an  offence  to  supply  horseflesh  to  anyone  who  asks  for 
other  meat,  or  for  any  compound  not  ordinarily  made  of  horseflesh  (s.  2). 

Penalties. — The  penalty  for  an  offence  under  the  Act  is  £20,  recoverable 
summarily  before  a  justice  or  Sheriff,  according  to  the  procedure  provided 
by  sec.  33  of  the  Sale  of  Food  and  Drugs  Act,  1875  (ss.  6,  9). 

Ins]iection. — The  medical  officer,  or  other  officer  under  direction  of  the 
local  authority  {i.e.  the  local  authority  under  the  Sale  of  Food  and  Drugs 
Act,  1875),  may  inspect  any  meat  suspected  to  be  horseflesh  which  Is 
exposed  for  sale  as  human  food  in  any  place  other  than  such  shop ;  and  if 


SALVAGE  65 

it  appear  to  be  horseflesh,  he  may  seize  it,  in  order  to  have  it  dealt  with 
by  a  justice  or  Sheriff  (s.  3). 

Warrant  to  enter  any  building  other  than  such  shop  and  seize  any 
meat  suspected  to  be  horseflesh  illegally  concealed,  may  be  granted  by  a 
justice  on  sworn  complaint  by  the  medical  officer  or  other  officer  of  the 
L.  A.  (s.  4).  And  obstruction  of  such  officer  is  an  offence  (ib.).  Such 
horseflesh  may  be  disposed  of  as  the  justice  may  direct ;  and  the  offender 
is  to  be  deemed  guilty  of  an  offence,  unless  he  prove  that  it  was  not 
intended  for  human  food  (s.  5). 

See  Sale  of  Food  and  Deugs  ActsT 


Sale  or  Return.— See  Sale. 

Sale,  Power  of  .—See  Powee  of  Sale  (vol.  ix.  374). 

Salmon  Fishing".— See  Fishings  (vol.  vi.  3). 


Salvage.— The  word  salvage  is  used  in  law  in  two  senses.     It  means 
either  (1)  service  performed  by  persons  under  no  legal  obligation,  in  saving 

(a)  a  ship  or  goods  from  destruction  at  sea,  or  from  capture  by  an  enemy,  or 

(b)  tlie  lives  of  persons  on  board  a  ship,  or  (2)  the  reward  given  for  such  service. 

Salvage  reward  forms  one  of  the  most  natural  burdens  on  property  so 
saved  or  recovered :  salvage  service  gives  at  once  a  remedy  in  Admiralty  in 
rem  and  at  common  law  by  lien  ;  and  a  personal  action  or  claim  against 
the  owner  to  wliom  the  property  is  restored  (Bell,  Com.  i.  592).  ^  This 
compensation  is  now  made  by  payment  in  money.  In  the  infancy  of  com- 
merce it  was  more  frequently  made  by  the  delivery  of  some  portion  of  the 
specific  articles  saved  or  recovered  (Abljott,  Merchant  Ship2nng,  397).  A 
claim  for  salvage  reward  arises  independently  of  contract.  It  may  be  the 
subject  of  contract,  but  it  is  not  necessarily  so  {The  Liffcy,  1887,  6  Asp 
M.  C.  255;  The  Hestia,  L.  R  [1895]  P.  193;  but  see  The  Sohvay  Prince, 
L.  P.  [1896]  P.  120). 

In  its  origin  salvage  is  akin  to  service  for  which  recompense  is  due 
under  the  legal  title  of  Ncfjotiorum  Gestio  (see  The  Liffey,  supra).  In 
England  recompense  for  salvage  services  does  not  seem  to  be  due  at  con)raon 
law  {Palmer,  1858,  3  H.  &  N.  505,  opinion  of  Martin,  B.,  at  p.  509;  opinion 
of  Bowen,  L.  J.,  in  Falcke,  188G,  L.  E.  34  Ch.  D.  248 ;  The  Gas  Float  Whilton 
No.  2,  L.  R.  [1805]  P.  301  ;  [1890]  P.  42  ;  [1897]  A.  C.  337  ;  The  Solicay  Prince, 
L  K.  [189G]  P.  120).  It  is  thought  that  in  Scotland  the  salvor  has  an 
undoubted  right  to  recompense  by  the  common  law  (Stair,  i.  8.  3;  Bankt. 
i.  8.  3  and  4;  liell,  Prin.  hs.  538-541 ;  see  also  Kent,  Com.  (P^ditn.  Barnes,  1884), 
ii.  617;  l\A\\\cv,  Die  Quasi-Contrat  Negotiorum  Gcstorum,8.  219).  Salva<'e 
reward,  however,  goes  beyond  mere  recompense  pro  opere  ct  Ictbore.  It  is 
granted  on  a  liberal  scale,  as  public  policy  requires  that  every  inducement 
should  be  given  to  ])ersoiis  to  volunteer  their  services  for  the  savinf^  of  life 
and  property  in  danger  on  the  sea  (see  oj.inion  Kyre,  C.  J.,  in  Nicholson,  1793, 
2  Bl.  H.  254;  Sir  John  Nicholl  in  The  Clifton  1834,3  Hag.  Adm.  117, 
120 ;  Dr.  Lushington  in  The  Fusilier,  1865,  Brown.  &  Lush.  341,  347). 

Although  the  princii»le3  of  the  law  of  Scotland  on  the  sul)ject  of  salvage 
are  definite  (Bell,  Com.  i.  592),  there  are  singularly  few  illustrations  of  their 

•S.  E. — VOL.  XI.  5 


66  SALVAGE 

application  to  be  found  in  the  reports.  Accordingly,  the  bulk  of  authority 
for  statements  of  the  law  of  salvage  is  to  be  found  in  the  practice  of 
the  Admiralty  Court  of  England.  "Maritime  law,"  says  Professor  Bell, 
"  partakes  more  of  the  character  of  international  law  than  any  other  branch 
of  jurisprudence ;  and  in  all  the  discussions  on  this  subject  in  our  Courts, 
the  Continental  collections  and  treatises  on  this  subject,  and  the  English 
books  of  reports,  have  been  received  as  authority  by  our  judges,  where  not 
unfitted  for  our  adoption  by  any  peculiarity  which  our  practice  does  not 
recoo-nise"  {Com.  i.  497).  Moreover,  the  maritime  law  administered  in  the 
Engfish  Court  of  Admiralty  has  been  recently  stated  on  high  authority  to 
be  "the  same  as  the  maritime  law  administered  by  the  Courts  in  Scotland 
(Currie,  189G,  24  E.  (H.  L.)  1).  Professor  Bell's  caution,  however,  ought  to 
be  kept  in  mind,  and  in  applying  the  decisions  of  the  English  Admiralty 
Court  to  Scottish  practice  it  is  necessary  to  remember  the  peculiarities  of 
jurisdiction  and  procedure  in  that  Court.  The  English  Admiralty  Court 
applied  maritime  law  by  methods  of  its  own,  while  the  Scottish  Courts, 
administering  the  same  law,  have  used  and  use  the  machinery  provided  for 
the  vindication  of  rights  by  the  common  law  of  Scotland.  The  English 
Court  almost  invariably  looks  at  maritime  law  from  the  point  of  view  of  a 
process  in  rem.  Scottish  law  is  not  thus  hampered,  and  wherever  English 
practice  suffers  limitation  on  this  account  it  ought  to  be  disregarded. 

The  law  of  salvage  has  two  branches. 
I.  Penals  laws  against  depredation,  and 
II.  Eegulations  for  settling  a  fair  and  reasonable  rate  of  salvage. 
Another  natural  division  of  the  subject  nearly  coincides  with  this,  namely, 
the  law  relating  to  salvage  of  ships  and  goods  wrecked  or  washed  ashore, 
and  the  law  relating  to  ships   and   goods   saved  at  sea.     The  law  of  the 
former  branch  of  the  subject  differs  from  the  law  of  the  latter,  and  will  be 
dealt  with   separately  S7ib    voce  Wreck.     So   that   this   article   deals  only 
with  the  salvage  of  property  and  life  at  sea. 

The  subject  of  salvage  has  been  divided  by  text  writers  into  Civil  and 
Military  Salvage — the  latter  dealing  with  the  recapture  of  ships  previously 
taken  by  an  enemy  during  war.  The  distinction  is  not  of  much  importance, 
as  the  principles  applied  are  the  same  in  both  cases,  except  in  so  far 
as  in  the  latter  branch  the  rules  of  Prize  of  War  modify  the  general 
law  of  salvage  of  property  (M'Lachlan,  Merchant  Shipping,  673).  By  the 
common  law  the  property  in  a  British  ship  recaptured  from  the  enemy  does 
not  revert  to  the  owner,  but  vests  in  the  Crown  (Z'Acfif,  1810,  Edw.  185). 
It  is  provided,  however,  by  statute,  that  such  a  ship  is  to  be  restored  by 
decree  of  a  Prize  Court  to  the  owner  on  his  paying  as  prize  salvage  one- 
eighth  of  the  value  or,  if  the  recapture  is  made  under  circumstances  of 
special  difficulty  or  danger,  such  sum  as  the  Prize  Court  awards,  not  exceed- 
ing one-fourth  of  the  value  (Naval  Prize  Act,  1865,  27  &  28  Vict.  c.  25, 
s.  40).  If  a  British  ship  is  used  by  the  enemy  as  a  ship  of  war,  this  provision 
does  not  apply  (ih. ;  and  see  Z'Actif,  sup)ra). 

The  law  of  salvage  will  be  most  conveniently  considered  under  the 
following  heads : — 

1.  The  Proper  Subjects  of  Salvage. 

2.  Who  are  Entitled  to  Salvage. 

3.  For  what  Acts  and  in  what  Circumstances  Salvage  is  Due. 

4.  Who  are  Liable  for  Salvage. 

5.  The  Amount  of  Picward,  and  its 

6.  Apportionment. 

7.  Enforcement  of  Pdghts. 


SALVAGE  67 


1.  The  Proper  Subjects  of  Salvage. 
(a)  Proinrty.  (h)  Life. 

(a)  Property. — As  already  indicated,  the  common  law  of  Scotland  allows 
recompense  in  certain  circumstances  to  a  person  doing  a  benefit  to 
another's  property.  This  would  appear  to  cover  cases  of  salvage  of  any 
kind  of  property  afloat  or  ashore.  The  reward,  however,  beyond  recompense 
2yro  opere  et  labore  which  is  granted  to  salvors  of  property  at  sea,  and  the 
peculiar  remedies  for  the  enforcement  of  the  salvor's  rights,  would  appear 
not  to  extend  to  the  saving  of  everything  that  is  in  danger  at  sea,  or  that 
is  washed  ashore  from  the  sea.  The  rule  of  the  Admiralty  Court  of  England 
is  that  the  only  proper  subjects  of  salvage  are  a  ship,  her  apparel,  and  her 
cargo,  including  flotsam,  jetsam,  or  lagan,  each  of  them  part  of  the  cargo  of  a 
ship  (per  Ld.  Esher,  M.  R.,  in  The  Gas  Float  Whitton  No.  2,  L.  E.  [1896] 
P.  42,  at  p.  49  ;  aflcl.  H.  L.  [1897]  A.  C.  337).  In  this  case  a  gas  Hoat  shaped 
like  a  boat,  but  neither  intended  nor  fitted  to  be  navigated,  was  moored  in 
tidal  waters  for  purposes  of  navigation.  This  structure  having  broken 
adrift,  was  lield  not  to  be  a  proper  subject  of  salvage.  A  ship,  in  the 
description  of  the  proper  subjects  of  salvage  given  above,  includes  any  kind 
of  vessel,  and  is  not  confined  to  sea-going  ships  {The  Mac,  1882,  L.  Pi.  7 
P.  D.  38, 126).  In  this  case  a  hop2:)er  large  was  found  to  be  a  proper  subject 
of  salvage.  Things,  although  adrift  at  sea  or  in  tidal  waters,  which  are  not 
or  have  not  been  part  of  the  cargo  of  a  ship,  are  not  subjects  of  salvage 
{Xicolson,  1793,  2  Bl.  W.  254;  A  Raft  of  Timber,  1844,  2  Wm.  Rob.  251 ; 
Palmer,  1858,  3  H.  &  N.  505 ;  opinion  Ld.  Esher  in  The  Gas  Float  Whitton 
No.  2,  L.  R.  [1896]  P.  42,  53).  Whether  under  the  denomination  of  cargo 
would  be  included  goods  that  a  vessel  was  engaged  in  transporting  (e.g.  a 
raft  being  towed),  although  never  on  board  of  the  vessel,  lias  not  been 
decided.  In  The  Gas  Float  Whitton  No.  2  (supra),  in  the  House  of  Lords, 
Ld.  Herschell  specially  reserved  his  opinion  upon  that  point. 

Flotsam,  jetsam,  and  lagan  are  proper  subjects  of  salvage.  (For  the 
meaning  of  these  terms,  see  a^ite,  vol.  vi.  p.  32.) 

(h)  Life  Salvage. — The  general  maritime  law  did  not  grant  any  recom- 
pense for  the  salvage  of  life.  The  Admiralty  Court  of  England,  however, 
was  in  the  habit  of  granting  a  larger  reward  where  both  life  and  property 
were  saved  than  when  there  was  salvage  of  property  alone  (The  Fusilier, 
1865,  Prown.  &  Lush.  341,  3  Moo.  P.  C.  N.  S.  51).  This  anomalous  state  of 
matters  was  remedied  by  statute,  and  the  awarding  of  salvage  for  saving 
life  was  authorised  by  the  Merchant  Sliipping  Acts.  The  statutory  rules 
are  contained  in  the  Mercliant  Shipping  Act,  1894,  s.  544.  That  section 
is  as  folh)\vs  : — 

(1)  Wiiere  services  are  rendered  wholly  or  in  part  within  British  vvaters 
in  .saving  life  from  any  British  or  foreign  vessel,  or  elsewhere  in  saving  life 
from  any  P^ritish  vessel,  there  shall  l)e  payable  to  the  salvor  by  the  owner 
of  the  vessel,  cargo,  or  apparel  s;ived  a  reasonable  amount  of  salvage,  to  be 
determined  in  ca.se  of  dispute  in  manner  hereinafter  mentioned. 

(2)  Salvage  in  respect  of  the  preservation  of  life,  when  payable  by  the 
owners  of  the  vessel,  shall  bo  payable  in  priority  to  all  other  claims  for 
salvage. 

(3)  Where  the  vessel,  cargo,  and  apparel  are  destroyed,  or  the  value 
thereof  is  insufficient,  after  i.ayinent  of  the  actual  expenses  incurred,  to 
piy  the  amount  of  salvage  payable  in  respect  of  the  preservation  of  life, 
the  Board  of  Trade  may,  in  their  discretion,  award  to  the  salvor,  out  of 


G8  SALVAGE 

the  Mercantile  Marine  Fund,  such  sum  as  they  thinlc  tit  in  whole  or  part 
satisfaction  of  any  amount  of  salvage  so  left  unpaid. 

Life  salvage  has  thus  priority  over  all  other  claims  for  salvage,  and 
the  "  reasonable  sum  "  due  for  it  is  to  be  paid  whether  or  no  there  is  any- 
thinc^  left   to   pay  for   the   salvage   of   property  {The   Coromandel,   1857, 

Swab.  205).  ^  ^.^    ^ 

It  is  to  be  noticed  that  the  section  apphes  to  the  savnig  of  life  from  a 
British  ship  anywhere,  but  in  the  case  of  foreign  vessels  only  when  they 
are  in  British  waters  (The  Willem  III,  1871,  L.  E.  3  A.  &  E.  487). 

If  ^ar^  of  the  service  is  performed  in  British  waters,  as,  e.g.,  landing  the 
passengers  and  crew  at  a  British  port,  life  salvage  is  due  {The  Pacific,  L.  K. 
[1898fp.  170).  ^         .^    , 

By  sec.  545  the  Queen  is  empowered  to  direct,  by  Order  m  Council,  that 
the  provisions  of  the  Act  with  reference  to  life  salvage  be  extended  to  the 
ships  of  any  particular  country  when  beyond  British  jurisdiction.  This  as 
yet  has  only  been  applied  to  ships  belonging  to  Prussia  (Order  in  Council, 
7th  April  1864). 

The  v/ording  of  the  section  makes  it  plain  that  nothing  is  due  lor  lite 
salvage  beyond  the  value  of  what  is  saved  of  the  ship  and  cargo  (see  opinion 
of  Baggallay,  L.  J.,  in  Cargo  ex  Schiller,  1877,  2  P.  D.  145,  at  p.  157,  on 
corresponding  section  of  the  M.  S.  A.,  1854).  It  is  due  by  the  person  who 
was  owner  of  the  ship  or  cargo  at  the  time  the  services  were  rendered, 
althouo-h  the  property  has  subsequently  changed  hands  {The  Governor 
Maclemi,  1865,  13  W.  R  728 ;  Five  Steel  Barges,  1890,  L.  K.  15  P.  D.  142). 

When  freight  or  passage  money  has  been  earned,  the  owner  of  the  ship 
is  due  salvage  out  of  these  {The  Eastern  Monarch,  1860,  Lush.  81;  The 
Medina,  1876,  L.  K.  1  P.  D.  272,  2  P.  D.  5). 

When  nothing  is  saved,  no  life  salvage  is  due  {The  Eenpor,  1883,  8  P.  D. 
115 ;  The  Annie,  1886,  12  P.  D.  50),  and  the  only  reward  a  salvor  can 
then  get  is  out  of  the  Mercantile  Marine  Fund,  at  the  discretion  of  the 
Board  of  Trade. 

When  any  portion  of  the  ship  or  cargo  is  saved,  life  salvage  is  due  by 

the   owner   of  such   portion.     He  whose   property   is   lost   pays   nothing 

{Cargo  ex  Schiller,  1876,  L.  E.  1  P.  D.  473,  2  P.  D.  145 ;  Cargo  ex  Sarpedon, 

1877,  3  P.  D.  28).     Even  if  the  saving  of  the  property  is  by  different 

persons  at  a  different  time,  and  under  totally  different  circumstances  from 

the  saving  of  life,  the  owner  of  the  property  has  to  pay  {Cargo  ex  Schiller, 

swpra).     The  Schiller  was  wrecked  on  the  Scilly  Islands,  and  a  few  lives 

saved  by  some  boatmen  at  considerable  risk.     No  part  of  the  ship  or  cargo 

was  saved  at  the  time.     Afterwards  the  owners  of  some  specie  which  was 

part  of  the  cargo  succeeded,  by  diving  operations  and  other  means,  at  their 

own  expense,  in  securing  their  property  to  the  value  of  £40,000.     The 

Court  held  the  owners  of   the  specie  liable  for  the  life  salvage   of  the 

passengers,  and  assessed  it  at  £500.     For  life  salvage  to  be  due,  the  lives 

of  the  crew  and  passengers  must  be  in  danger  {The  Mariposa,  L.  E.  [1896] 

P.  273  ;  The  Cairo,  1874,  L.  E.  4  A.  &  E.  184 ;  Cargo  ex   Woosung,  1875, 

3  Asp.  M.  C.  50,  also  reported,  but  not  on  this  point,  L.  E.  1  P.  D,  260 ; 

with  Cargo  ex    Woosung  contrast   The  Medina,  1876,  L.  E.  1.  P.  D.  272, 

2  P.  D.  5). 

2.  Who  are  Entitled  to  Salvage. 

Only  those  who  are  under  no  obligation  to  render  salvage  services  are 
entitled  to  reward.  "  What  is  a  salvor  ? "  asks  Ld.  Stowell,  and  thus 
answers — "A  person  who,  without  any  particular  relation  to  a  ship  in 


SALVAGE  69 

distress,  proffers  useful  service,  and  gives  it  as  a  volunteer  adventurer, 
without  any  pre-existing  covenant  that  connected  him  with  the  duty  of 
employing  himself  for  the  preservation  of  that  ship"  {The  Keptunc,  1824, 
1  Hag.  Adm.  227,  236).  The  first  persons  naturally  excluded  from  the 
category  of  salvors  are  the  Master  and  Crew  of  the  vessel  saved.  They 
have  no  claim  for  salvage,  however  extraordinary  their  exertions  of  courage 
or  of  labour ;  for  already,  by  their  contract  with  the  owners,  their  interest 
and  exertions  are  engaged  in  the  service  of  the  ship  and  cargo  (Bell,  Com.  i. 
593).  (The  contract  may  extend  to  compel  the  performance  of  work  on 
board  another  vessel  belonging  to  the  same  owner,  and  salvage  claims  thus 
be  barred  {The  Maria  Jane,  1850, 14  Jur.  857).)  But  whenever  the  contract 
between  the  shipowner  and  the  crew  is  at  an  end,  by  abandonment  of  the 
ship  or  otherwise,  members  of  the  crew  may  become  salvors  {The  Florence, 
1852,  16  Jur.  572 ;  The  Warrior,  1862,  Lush.  476 :  Le  Jonct,  1872,  L.  R.  3 
A.  &  E.  556 ;  and  an  American  case.  Mason  v.  Sliip  Blaireau,  1804,  1 
Curtis,  479). 

Abandonment  of  the  ship  will  not  be  lightly  presumed.  It  must  be 
at  sea,  and  not  upon  a  coast.  It  must  be  sine  spe  revertendi  aut  recuperandi 
(per  Dr.  Lushington  in  The  Florence,  supra),  and  by  the  authority  of  the 
master  or  person  in  command.  If  the  crew  are  discharged  by  the  master, 
even  when  the  ship  is  wrecked  upon  the  shore,  the  agreement  is  at  an  end 
and  the  crew  are  entitled  to  become  salvors  {The  Warrior,  supra). 

The  agreement  is  also  at  an  end  when  the  ship  is  captured  by  an  enemy 
(Bell,  Com.  i.  593:  The  Two  Friends,  1  Eob.  A.  271;  The  Beaver,  1810,  3 
Eob.  A.  292;  The  Governor  Raffles,  1815,  2  Dod.  14).  "The  moment  the 
capture  is  effected,  the  crew  are  discharged  from  their  duty  to  their 
employers.  The  contract  between  the  parties  is  at  an  end.  The  seamen 
no  longer  constitute  thp.  crew  of  the  vessel,  but  become  prisoners  of  war  " 
(per  Ld.  Stowell  in  The  Governor  Baffles,  ut  supra,  at  p.  17).  Some  doubt 
lias  been  thrown  on  this  doctrine  by  some  expressions  of  Ld.  Alvanley, 
C.  J.,  C.  P.,  in  Bcale  (1803,  3  B.  &  P.  405),  and  of  Dr.  Lushington  in  The 
Flonnce  (1852,  16  Jur.  572).  Ld.  Alvanley  seems  to  hold  that  capture 
followed  by  recapture  does  not  put  an  end  to  the  contract,  but  only  leaves 
it  in  abeyance.  Dr.  Lusliington,  mentioning  this  judgment  of  Ld. 
Alvanley 's,  reserves  his  opinion.  It  is  submitted,  liowever,  that  Ld. 
Stowell's  doctrine  is  correct:  it  is  in  itself  consistent  with  sound  principle; 
it  is  affirmed  by  Ld.  Stowell  three  times  and  approved  by  Prof.  Bell 
{Com.  i.  593) ;  Ld.  Alvanley 's  opinion  relates  to  a  question  of  wages  and 
not  salvage,  and  the  opinion  of  Dr.  Lushington  in  The  Florence,  if  examined 
carefully,  will  be  found  more  in  favour  of  the  doctrine  than  against  it. 

Capture  by  pirates  would  liavc  the  same  effect  as  capture  by  an  enemy, 
but  the  rescue  of  a  ship  from  mutineers  by  the  crew  is  not  tlie  same.  Such 
Hervico  does  not  entitle  to  salvage  (Bell,  Com.  i.  593;  IVie  Governor  Raffles, 
1815,  2  Dod.  14).  "It  is  the  bounden  duty  of  the  crew  to  give  every 
assistance  in  their  power  to  pievent  or  quell  a  mutiny,  and  to  use  their 
utmost  exertions  to  preserve  or  recover  the  ]X-)Ssession  of  the  vessel  and 
goods  of  their  employers"  (per  Ld.  Stowell  in  The  Governor  Raffles,  a.t  p.  17). 

In  ordinary  cases  a  Pilot  is  not  entitled  to  salvage  {The  Joseph 
Harvey,  1799,  1  Pob.  A.  306 ;  The  uEolus,  1873,  L.  R.  4  A.  &  E.  29).  "  It 
would  be  extremely  dangerous  to  allow  the  general  rule  that  pilots  cannot 
claim  as  .salvors  to  be  too  easily  violated  :  the  exceptions  to  this  rule  should 
be  few  and  clearly  defined.  It  ought  to  be  well  understood  that  the  services 
of  a  7)ilot  are  not  slightly  to  be  converted  into  salvage  services  "  (per  Sir 
Robert  Phillinini-o  in    The  /JMus,  supra).     In  special  circumstances  a  ])ilot 


70  SALVAGE 

is  entitled  to  salvage  reward.  If  a  vessel  is  in  distress,  a  pilot  is  not  bound 
to  go  on  board  to  render  ordinary  salvage  services ;  he  is  entitled,  if  he 
takes  charge  of  a  vessel  in  distress,  to  salvage  remuneration  {The  Frederick, 
1838,  1  Wm.  Eob.  16  ;  The  Elizabeth,  1844,  8  Jur.  365 ;  The  Hebe,  1844,  2 
Wm.  Rob.  246 ;  The  Hedwig,  1853,  1  Spinks  E.  &  A.  19 ;  The  Bomarsund, 
1860,  Lush.  77  ;  The  Anders  Knape,  1879,  L.  E.  4  P.  D.  213  ;  Akerbloom,  1881, 
L.  E.  7  Q.  B.  D.  129).  In  order  to  entitle  a  pilot  to  salvage  reward  he  must 
show  "  not  only  that  the  ship  was  in  some  sense  in  distress,  but  that  she  was 
in  such  distress  as  to  be  in  danger  of  being  lost,  and  such  as  to  pall  upon 
him  to  run  such  unusual  danger,  or  incur  such  unusual  responsibility,  or 
exercise  such  unusual  skill,  or  perform  such  an  unusual  kind  of  service,  as  to 
make  it  unfair  and  unjust  that  he  should  be  paid  otherwise  than  upon  the 
terms  of  salvage  reward"  (per  Ld.  Esher,  M.  E.,  in  Akerbloom,  siqjra,  at  p.  135). 
What  was  in  its  inception  a  pilotage  service  may  become  salvage  by 
circumstances  of  extraordinary  difficulty  and  danger  emerging.  "  On  certain 
emergencies  occurring  which  require  extraordinary  service,  a  pilot  is  bound 
to  stay  by  the  ship,  but  becomes  entitled  to  salvage  remuneration,  and  not 
a  mere  pilotage  fee"  (per  Dr.  Lushington  in  The  Saratoga,  1861,  Lush.  318, 
321.  See  also  The  Galatea,  1858,  Swab.  349 ;  The  Mollis,  1873,  L.  E.  4  A. 
&  E.  29,  32).  "  The  rates  of  pilotage  have  been  settled  upon  the  calculation 
of  what  will  be  an  adequate  reward  for  ordinary  pilot  services,  but  not  for 
other  services"  (per  Dr.  Lushington  in  The  Elizabeth,  1844,  8  Jur.  365). 
Slight  acts  of  assistance  by  pilots  or  pilot  boats  will  not  be  easily  inter- 
preted as  salvage  services  {The  Jonge  Andries,  1857,  Swab.  226,  303). 

Passengers,  so  long  as  they  remain  on  board  the  ship,  are  in  ordinary 
circumstances  excluded  from  the  category  of  those  who  are  entitled  to 
salvage  reward.     While  on  board  the  ship  they  are  bound  to  labour  for  the 
common  safety  (Bell,  Com.  i.  593 ;  The  Branston,  1826,  2  Hag.  Adni.  3),  and  are 
not  entitled  to  salvage  unless  their  services  have  been  of  an  extraordinarily 
meritorious  description.      In  The  Two  Friends   (1799,  1  Eob.  A.  271,  at 
p.  285)  a  passenger  was  found  entitled  to  salvage  reward  in  a  case  of  recap- 
ture from  an  enemy.     A  shipwrecked  crew,  taken  on  board  another  vessel, 
rendering  salvage  service  were  found  entitled  to  reward  in  The  Salacia 
(1829,  2  Hag.  Adm.  262,  269).     In  Newman  v.  Walters  (1804,  3  Bos.  &  Pul. 
612)  the  Court  of  Common  Pleas  found  a  shipmaster,  who  was  a  passenger 
on  board  a  vessel,  entitled  to  salvage  in  the  following  circumstances.     The 
ship  was  ashore,  the  master  and  three  of  the  crew  made  off  in  a  boat,  the 
pilot  was  drank,  and  the  mate  and  the  crew  requested  this  person  to  take 
command  of  the  ship.     He  did  so,  his  first  act  being  to  prevent  an  improper 
order  given  by  the  pilot  being  executed,  and  brought  the  ship  to  a  place 
of  safety.     A  little  doubt  is  thrown  upon  the  authority  of  this  case  by  an 
expression  of   Dr.  Lushington   in    The   Vrede  (1861,  Lush.   322,   325),  but 
in  principle  it  seems  thoroughly  well  founded.     The  services  could  not  be 
described  as  ordinary,  and  the  responsibility  assumed  was  great.     In  a  very 
interesting  American  case,  Toivle  v.  The  Great  Eastern,  reported  2  ]\Iaritime 
Law   Eeports   (Aspinall),  148,  Newman  v.    Walters  was   approved,  and   a 
passenger  found  entitled  to  salvage  for  services  rendered  to  the  steamer 
Great  Eastern.     This  ship,  having  disabled  her  paddle  wheels  and  broken 
her  rudder  shaft  in  a  gale,  lay  in  the  trough  of  the  sea  for  about  thirty-six 
hours,  during  which  time  the  officers  of  the  ship  had  endeavoured  in  vain 
to   repair  the   damage.     A   passenger,  who  was  a   civil   and   mechanical 
engineer  regularly  educated  for  his  profession,  then,  with  consent  of  the 
captain,  undertook  to  put  in  execution  a  plan  which  he  had  devised  for 
steering  the  ship,  snperintended  the  work,  and  succeeded  in  his  endeavour. 


SALVAGE  71 

so  that  the  vessel  was  able  to  be  steered.  The  U.S.  District  Court  of 
Admiralty  for  the  Southern  District  of  New  York  awarded  this  person 
$15,000,  the  ship  being  valued  at  8500,000. 

Passengers  are  not  bound  to  remain  on  board  the  ship  when  there  is  a 
chance  of  escape  (Abbott,  Merchant  Shipjnng,  401;  Bell,  Com.  i.  594;  The 
Branston,  1826,  2  Hag.  Adm.  3).  If  they  do,  for  the  purpose  of  helping  to 
save  the  ship  and  cargo,  it  is  submitted  that  they  are  clearly  entitled  to 
salvage  (Bell,  Com.  ut  supra).  This  doctrine  was  rejected  by  Dr.  Lushington 
in  The  Vrecle  (1861,  Lush.  322),  and  passengers  who  voluntarily  remained 
on  board  a  vessel  injured  by  collision,  and  who  assisted  to  keep  her  atioat  by 
working  at  the  pumps,  were  not  allowed  any  salvage  reward.  It  is  difficult 
to  reconcile  this  case  with  principle,  or  with  the  cases  where  the  crew  of  a 
ship  have  been  found  entitled  to  salvage  by  reason  of  the  contract  of 
service  being  held  to  be  at  an  end.  As  to  passengers  on  hoard  the  salving 
vessel,  see  infra,  p.  84. 

The  position  of  the  Officees  and  Men  of  the  Eoyal  Navy  requires 
attention.  By  statute  they  cannot  successfully  prosecute  a  claim  for 
salvage  without  the  consent  of  the  Admiralty  (AI.  S.  A.,  1894,  s.  557). 
They  are  not,  as  a  general  rule,  entitled  to  reward  for  services  wdiich  may 
be  described  as  coming  within  the  scope  of  their  official  duty  as  the  police 
of  the  seas.  Unless  for  services  of  an  exceptionally  meritorious  nature, 
they  are  not  entitled  to  reward  for  quelling  mutiny  on  board  a  merchant 
ship,  for  rescuing  a  ship  from  an  enemy,  or  for  protecting  a  ship  and  cargo 
from  being  looted  {The  Belle,  1809,  Edw.  66 ;  The  Francis  and  Eliza,  1816, 
2  Dod.  115).  For  rescue  from  pirates  by  Her  Majesty's  ships,  see  13  &  14 
Vict.  c.  26.  Even  in  the  case  of  ordinary  perils  of  the  sea  it  is  the  duty  of 
Her  Majesty's  ships  to  render  assistance  to  all  British  ships  in  distress,  and 
for  ordinary  salvage  services  they  are  not  entitled  to  reward  {The  licqnd, 
1838,  3  Hag.  Adm.  419).  But  if  there  has  been  extra  labour,  or  risk,  or 
danger  to  the  officers  and  men,  they  are  entitled  to  reward  {The  Louisa,  1813, 
1  Dod.  317;  The  Charlotte  Wylic,  1846,  2  Wm.  Eol).  495).  An  instructive 
apjdication  of  these  principles,  into  which  it  is  unnecessary  to  enter  more 
fully,  will  be  found  in  the  case  of  The  Cargo  ex  Ulysses  (1888,  L.  E.  13  P.  D. 
205).  Differing  from  the  rule  in  Naval  Prize  Law,  no  person  is  entitled 
to  share  in  a  salvage  award  on  account  solely  of  his  rank  or  command  {The 
Vine,  1825,  2  Hag.  Adm.  1 ;  The  Cah/pso,  1828,  2  Hng.  Adm.  209 ;  The 
Thetis,  1833,  3  Hag.  Adm.  14,  58).  But  if  any  action  of  an  individual  has 
contributed  to  the  service,  he  is  entitled  to  share  {The  Thetis,  ut  sujwa ;  alTd. 
P.  C,  1834,  2  Kn.  390 ;  The  Nile,  1875,  L.  E.  4  A.  &  E.  449).  It  may  here 
l)C  observed  that  no  claim  is  allowed  for  any  loss,  damage,  or  risk  caused  to 
any  of  Her  Majesty's  ships,  or  her  stores,  tackle,  or  furniture,  or  for  the  use 
of  any  stores  or  other  articles  belonging  to  Her  Majesty,  supplied  in  order 
to  effect  these  services,  or  for  any  other  expense  or  loss  sustained  by  Her 
Majesty  by  reason  of  tliat  service  (M.  S.  A.,  1894,  s.  557).  As  to  what  is 
a  Queen's  ship  within  the  meaning  of  this  section  and  in  relation  to  salvage 
generally,  .see  The  Lord  Ilohart,  1815,  2  Dod.  100;  The  Nile,  1875,  L.  E.  4 
A.  &  K  449;  Carrjo  ex  Woosvng,  1870,  L.  i:.  1  V.  I).  260,  3  Asp.  M.  C.  50; 
The  TMlhoHsic,  1870,  L.  E.  1  P.  D.  271 ;  The  Cyhele,  1878,  L.  E.  3  1'.  D.  8 ; 
The  Bertie,  1886,  6  Asp.  M.  C.  26. 

All  Official  Personages  acting  within  the  scope  of  their  duty  are  of 
course  excluded  from  claiming  salvage  by  the  rule  that  it  is  only  persons 
under  no  legal  ol)ligation  who  are  entitled  to  salvage  reward.  This  applies 
to  Magi.stiiates  in  cases  of  shipwreck  {Thr  Aqnila,  1798,  1  Eob.  A.  37);  to 
Eevexue  Officers  {The  Clifton,  1834,  3  Hag.  Adm.  117;  The  Queen  Mob, 


72  SALVAGE 

1835,  3  Hag.  Adm.  242).  The  rule,  however,  is  not  strictly  construed  in 
regard  to  the  latter,  and  a  small  reward  has  been  given  on  several  occasions 
by  the  English  Achiiiralty  Court  to  revenue  officers  who  have  given  assist- 
ance to  vessels  in  distress  {The  Queen  Mob,  The  Clifton,  supra ;  The  Carlotta, 
1831,  2  Hag.  Adm.  361 ;  The  Silver  Bullion,  2  Spinks  E.  &  A.  70  ;  Pritchard's 
Admiralty  Digest,  1814).  If  such  officers  form  })art  of  the  crew  of  a  Queen's 
ship,  they  require  the  consent  of  the  Admiralty  before  they  can  obtain 
salvage  (M.  S.  A.,  1894,  s.  557).  It  is  a  question  how  far  services  rendered 
in  the  case  of  a  collision  by  the  innocent  vessel  to  the  wrong-doer  are 
entitled  to  salvage  reward.  There  is  a  statutory  duty  upon  a  vessel  which 
has  been  in  collision  to  save  the  other  vessel  from  any  danger  caused  by  the 
collision  (M.  S.  A.,  1894,  s.  422).  Is  such  a  service  voluntary  ?  (see  The 
Eannilal,  1867,  L.  E.  2  A.  &  E.  53 ;  The  Beta,  1884,  5  Asp.  276,  opinion  of 
Butt,  J.,  at.  p.  277). 

Besides  the  rule  requiring  that  services,  to  be  rewarded  as  salvage,  must 
be  voluntary,  there  is  another  necessary  ingredient  in  salvage  services,  viz. 
they  must  be  personally  performed  {The  Vine,  1825,  2  Hag.  Adm.  1;  The 
Charlotte,  1848,  3  Wm.  Eob.  68).  It  is  the  people  by  whose  actual  exertions 
the  property  is  saved  who  are  entitled  to  reward.  But  in  the  case  of 
salvage  service  performed  by  part  of  the  crew  of  a  salving  ship,  this  rule 
does  not  exclude  from  participation  in  the  award  those  wdio  remain  on  board 
the  salving  ship  {The  Sarah  Jane,  1843,  2  Wm.  Rob.  110  ;  The  Charles,  1872, 
L.  E.  3  A.  &  E.  586  ;  The  Coriolanus,  1890,  L.  E.  15  P.  D.  103 ;  but  see  The 
Emma,  1850,  3  Wm.  Eob.  151),  provided  they  had  not  refused  to  volunteer 
as  salvors  {The  Baltimore,  1817,  2  Dod.  132).  They  may  not  all  receive  an 
equal  amount  of  salvage  reward  (see  infra,  Ai^portionment  of  Reward,  p.  84). 

The  requirement  of  personal  performance  of  salvage  services  has  an 
apparent  exception  in  the  rule  entitling  the  owners  of  a  salving  ship  to  rank 
as  salvors.  This  exception  is  only  apparent,  because  the  ship  herself  is 
always  personified  in  Maritime  Law  and  Practice,  and  the  reward  is  given 
for  her  services.  If  the  services  of  a  ship  are  not  such  as  to  entitle  her  to 
rank  as  a  salvor,  the  owner  gets  cqidtable  compensation  or  recompense  for  the 
use  of  his  property  {The  Charlotte,  1848,  3  Wm.  Eob.  68).  In  the  case  of 
a  vessel  on  charter,  if  nothing  is  said  about  salvage,  and  the  cliarter  is  an 
ordinary  one,  salvage  reward  goes  to  the  owner  of  the  ship  {The  Waterloo, 
1820,  2  Dod.  433  ;  The  Alfen,  1857,  Swab.  189).  The  charterer  might  have 
a  claim  ac^ainst  the  owner  for  delay  and  loss  incurred  {The  Alfen,  supra). 
If  the  charter  amounts  to  a  lease  of  the  ship  to  the  charterer,  if  the  crew 
are  his  servants,  and  he  manages  and  controls  the  ship,  then  it  would  seem 
that  salvage  reward  would  go  to  the  charterer  {The  Maria  Jane,  1850,  14 
Jur.  857  ;  The  Scout,  1872,  L.  E.  3  A.  &  E.  512  ;  for  an  example  of  a  charter 
(in  a  different  question)  not  amounting  to  a  lease  of  the  ship,  see  Park,  1898, 
25  E.  528).  When  the  owner  of  the  salving  ship  is  the  same  person  as  the 
owner  of  the  salved  ship,  he  has  a  claim  for  salvage  against  the  owners  of 
the  cargo  on  board  the  salved  ship  {Cargo  ex  Laertes,  i887,  L.  E.  12  P.  D. 
187),  except  in  cases  where  he  would  have  been  responsible  to  the  cargo- 
owner  if  the  cargo  had  been  lost  {The  Glenfruin,  1885,  L.  E.  10  P.  D.  103  ; 
and  compare  Cargo  ex  Capclla,  1867,  L.  E.  1  A.  &  E.  356,  and  Duncan,  1878, 
5  E.  742).  This  does  not  affect  the  crew  {The  Glenfruin,  supra;  The 
Sappho,  1871,  L.  E.  3  P.  C.  690). 

A  real  exception  to  the  rule  that  service  must  be  personal  has  been 
made  by  the  Court  of  Admiralty  in  England  in  the  case  of  a  person  who 
IS  employed  for  the  purpose  of  securing  the  services  of  salvors,  acting  in 
this  capacity  as  agent  for  the  ship.     Salvage  reward  has  been  repeatedly 


SALVAGE  73 

given  to  a  person  who  has  organised  the  salvage  operations,  although  he 
has  not  run  any  personal  risk  or  danger.  This,  although  an  exception  to 
the  general  rule  laid  down,  seems  sound  in  principle,  especially  where  the 
person  claiming  salvage  has  made  no  bargain,  and  runs  the  risk  of  getting 
no  remuneration  at  all  in  the  event  of  non-success.  But  the  line  between 
what  is  mere  agency  and  what  is  salvage  is  difficult  to  draw,  and  the  cases 
are  not  easily  reconcilable.  Cases  in  which  an  agent's  claim  has  been 
refused  are  :  The  Watt,  1843,  2  Wm.  Eob.  70  ;  The  Lively,  1848,  3  \Ym.  Eob. 
64.  An  agent's  claim  for  salvage  has  been  admitted  in  The  Hai^inj  Return, 
1828,  2  Hag.  Adm.  198;  The  Favorite,  1844,  2  Wm.  Eob.  255;  The 
Purissima  Concepcion,  1849,  3  Wm.  Eob.  181 ;  The  Cargo  ex  Honor,  1866, 
L.  E.  1  A.  &  E.  87 ;  The  Kate  B.  Jones,  [1892]  P.  366. 

3.  EoR  WHAT  Acts  and  ix  what  Circumstances  Salvage  is  Due. 

No  purpose  is  served  by  an  enumeration  of  the  different  ways  in  which 
salvage  service  may  be  rendered  to  a  ship,  or  by  making  a  catalogue  of  the 
cases  in  which  salvage  has  been  awarded.  The  general  rule  governing  all 
questions  of  salvage  is  thus  stated  by  Dr.  Lushington:  "All  services 
rendered  at  sea  to  a  vessel  in  danger  or  distress  are  salvage  services.  _  It 
is  not  necessary,  I  conceive,  that  the  distress  should  be  actual  or  imniediate, 
or  that  the  danger  should  be  imminent  or  absolute ;  it  will  be  sufficient  if, 
at  the  time  the  assistance  is  rendered,  the  ship  has  encountered  any  damage 
or  misfortune  which  might  possibly  expose  her  to  destruction  if  the  services 
were  not  rendered"  {The  Charlotte,  1848,  3  Wm.  Eob.  71 ;  approved  P.  C.  in 
The  Strathnarer,  1875,  L.  E.  1  App.  Ca.  58).  Danger  or  risk  to  the 
salvors  is  not  an  essential  element  in  salvage,  but  it  is  of  importance  in 
determining  the  amount  of  salvage  reward  (T/ic  Pericles,  1863,  15.  &  L.  80). 
2VII  services  to  a  ship  are  salvage  services,  but  the  different  kinds  and 
qualities  of  salvage  services  are  infinitely  various,  and  salvage  reward 
varies  accordingly. 

There  is  no  distinction  between  river  salvage  and  sea  salvage  {The 
Carrier  Dove,  1863,  2  Moo.  P.  C.  N.  S.  243). 

A  necessity  of  salvage  service  is  success.  The  fundamental  rule  is  that 
if  nothing  is  saved,  no  salvage  is  due,  however  meritorious  may  have  been 
the  eflbrts  of  the  salvors  {The  Zephyrus,  1842, 1  AVm.  Eob.  329  ;  The  Penpov, 
1883,  L.  E.  8  P.  D.  115).  (This  does  not  apply  when  an  agreement  is  made 
for  service  whether  successful  or  not :  The  AlfrcJ,  1884,  5  Asp.  M.  C.  214.) 
15ut  a  claimant  is  not  debarred  from  salvage  reward  because  his  own  efforts 
have  not  succeeded  in  bringing  the  ship  or  cargo  to  a  place  of  safety.  It 
is  sufficient  if  his  efforts  have  contributed  to  the  successful  issue  {The 
Jonge  Bastiaan,  1804,  5  Eob.  A.  322;  Pohinson,  1851,  13  D.  592;  The 
E.  U.,  1853,  1  Spinks.  E.  &  A.  63  ;  The  Atlas,  1862,  Lush.  518  ;  The  Aztecs, 
1870,  3  M.  L  Eep.  326;  The  Melpomene,  1873,  L.  E.  4  A.  &  E.  129;  The 
Camellia,  1883,  L.  E.  9  P.  D.  27).  But  if  the  services  result  in  leaving  the 
vessel  in  no  better  position  than  she  was  in  previous  to  their  connnencemeut, 
no  salvage  is  due  {The  India,  1842, 1  AVm.  Eob.  406  ;  The  Edward  Hawkins, 
1862,  Lush.  515;  The  Cheerfid,  1885,  L.  E.  11  P.  D.  3;  The  Benlarig,  1888, 
L.  E.  14  P.  D.  3).  Although  salvage  proper  is  not  due,  recompense  for 
services  actually  rendcicd  inav  in  some  circumstances  be  given  (I'Ac  Benlarig 
{supra);  The  Lepanto,  [1892]  P.  122;  The  Hestia,  [1895]  P.  193).  No 
salvage  is  due  if  the  salvors  desert  the  vessel  in  distress  {The  Killccna,  1881, 
L  If.  6  P.  D.  193).  In  one  case  a  steamer,  after  towing  a  ship  in  distress 
for  twelve  hours,  and  standing  by  her  for  six  more,  left  the  ship  under  the 


74  SALVAGE 

impression  that  her  services  were  no  longer  required.  The  ship  arrived 
safely  at  a  home  port  by  her  own  exertions.  Sir  Eobert  Phillimore  found  the 
steamer  entitled  to  salvage  reward  {The  Nellie,  1873,  2  Asp.  M.  C.  142). 

Towage  or  Salvage. — It  is  sometimes  a  question  of  difficulty  to  determine 
whether  services  rendered  by  one  vessel  to  another  are  salvage  services  or 
merely  towage.     Dr.  Lushington  thus  distinguishes  towage  from  salvage : 
"  Without  attempting  any  definition  which  may  be  universally  applied,  a 
towage  service  may  be  described  as   the   employment   of   one   vessel   to 
expedite  the  voyage  of  another,  when  nothing  more  is  required  than  the 
accelerating  her  progress"  {The  Princess  Alice,  1849,  3  Wm.  Kob.  138,  139). 
In  another  case  :  "  Mere  towage  service  is  confined  to  vessels  that  have  re- 
ceived no  injury  or  damage,  and  mere  towage  reward  is  payable  in  those 
cases  only  where  the  vessel  receiving  the  service  is  in  the  same  condition  she 
would  ordinarily  be  in  without  having  encountered  any  damage  or  accident " 
{The  Reward,  1841,  1  W.  Rob.  174, 177).     So  if  a  vessel  is  not  in  a  situation 
of  actual  or  imminent  probable  danger,  service  rendered  by  a  steamer  to  her 
may  only  be  towage  {The  Strathnaver,  1875,  L.  E.  1  App.  Ca.  58).     But  if 
the  vessel    towed  is  in    the  least    danger,  the   service   is   salvage,   even 
although  the  service  is  not  attended  with  any  danger  to  the  salvors  {The 
Ellora,  1862,  Lush.  550 ;  The  Julilec,  1879,  4  Asp.  M.  C.  275 ;  The  Berlin, 
1882,9  R.  1057;    The  Thomas  Allen,  1886,  L.  R.  12  App.  Ca.  118;    The 
Werra,  1886,  L.  R.  12  P.  D.  52 ;  Bennet,  1887,  24  S.  L.  R.  625).     When  the 
service  is  rendered  by  a  tug  steamer  whose  business  is  towage,  salvage  is 
not  so  easily  presumed.     For  cases  in  which  salvage  has  been  allowed,  see 
The  Rcivard,  1841,  1  Wm.  Rob.  174;  The  Mcdora,  1853,  1  Spinks  E.  &  A. 
17 ;  Rohinson,  1851,  13  D.  592.     Cases  in  which  the  services  of  the  tug 
have  been  regarded  as  simply  towage  are :  The  Princess  Alice,  1849,  3  Wm. 
Rob.  138  ;  Tlie  HarUnger,  1852,  16  Jur.  729.     In  the  only  Scottish  case  on 
this  subject  the  Court  did  not  determine  whether  the   services  rendered 
were  salvage  or  towage.     In  approaching  a  port  which  had  a  very  narrow 
entrance  a  steamer  ran  upon  a  bank  composed  of  loose  stones  and  mud. 
In  answer  to  signals  of  distress  a  tug  passing  outside  with  a  sailing  vessel 
in  tow,  cast  the  vessel  off,  and  at  some  risk  and  some  damage  to  herself 
hauled  the  steamer  off  the  bank.     The  Court  held  that  "  the  services  of  the 
tug  were  of  a  very  different  kind   from    ordinary  towage   services,"   and 
granted  a  reward  much  in  excess  of  ordinary  towing  rates  {Laivson,  1888, 
15  R.  753).     It  is  submitted  that  the  services  here  were   really  salvage 
services,  although  rendered  by  a  tug.     A  vessel  ashore  is  in  distress,  and  a 
tug  is  not  bound  to  render  her  service  at  towage  rates.     The  granting  of 
extra  remuneration  shows  that  the  service  is  really  salvage,  whatever  it 
may  be  called.     A  very  instructive  case  on  the  border  between  towage  and 
salvage,  where  the  towed  vessel  was  disabled,  l)ut  the  services  were  really 
towage   although   nominally   salvage,  the   vessel  being  towed  not  to  the 
nearest  port,  but  at  her  request  to  one  a  long  distance  off,  is  The  Batavier 
(1853,  1  Spinks  E.  &  A.  169).     In  this  case  remuneration  for  something 
more  than  towage  services,  but  much  less  than  for  proper  salvage,  was  given 
by  Dr.  Lushington.     The  services  of  a  tug  under  a  contract  of  tow  may  be 
turned    into    salvage    by   circumstances   of    danger   and   extra   difficulty 
supervening. 

"If  by  sudden  violence  of  wind  or  waves,  or  other  accidents,  the  ship  in 
tow  is  placed  in  danger,  and  the  towing  vessel  incurs  risks  and  performs 
duties  which  were  not  within  the  scope  of  her  original  engagement,  she  is 
entitled  to  additional  remuneration  for  additional  services  if  the  ship  be 
saved,  and  may  claim  as  a  salvor,  instead  of  beinr?  restricted  to  the  sum 


"O 


SALVAGE  75 

stipulated  to  be  paid  for  mere  towage  "  (per  Ld.  Kingsdown  in  The  Minne- 
haha, 1861,  Lush.  335,  347).  "When,  from  the  state  of  the  wind  and 
weather,  the  performance  of  the  service  originally  contracted  for  is  pre- 
vented, a  steam-tug  is  not  at  liberty  to  abandon  the  ship  she  has  eugaged 
to  tow,  but  it  is  her  duty  to  render  all  the  assistance  in  her  power  in 
bringing  the  ship  to  a  place  of  safety,  and  for  so  doing  she  is  entitled  to 
a  salvage  remuneration"  (per  Dr.  Lushington  in  The  Galatea,  1858,  Swab. 
349  ;  see  also  The  White  Star,  1866,  L.  E.  1  A.  &  E.  68  ;  The  Madras,  L.  E. 
[1898]  P.  90).  It  is  not  necessary,  in  order  to  turn  towage  services  into 
salvage,  that  the  supervening  danger  should  be  of  such  a  character  as  to 
actually  put  an  end  to  the  towage  contract.  It  is  sufficient  if  the  services 
rendered  are  beyond  what  can  be  reasonably  supposed  to  have  been 
contemplated  by  the  parties  entering  into  the  contract,  and  that  is  a 
question  of  circumstances  in  each  case  {Five  Steel  Barges,  1890,  L.  E.  15 
P.  D.  142,  opinion  of  Sir  James  Hannen,  at  p.  144).  To  convert  towage 
into  salvage,  the  tow  must  be  in  danger,  but  the  tug  need  not  be  {The 
Pericles,  1863,  Br.  &  Lush.  80).  But  whatever  the  danger  to  the  tow,  if 
the  service  rendered  by  the  tug  comes  under  her  proper  contract  of  towage, 
the  tug  is  not  entitled  to  salvage  {The  Annapolis,  The  Golden  Light  and  the 
H.M.  Hayes,  1861,  Lush.  355).  For  cases,  other  than  those  already  quoted, 
where  the  tug  was  found  entitled  to  salvage,  see  The  Albion,  1861,  Lush. 
282;  The  Saratoga,  1861,  Lush.  318;  The  I.  C.  Potter,  1870,  L.  E.  3 
A.  &  E.  292.  Cases,  besides  those  already  referred  to,  where  the  tug  has 
been  refused  salvage  reward  are :  The  Lady  Egidia,  1862,  Lush.  513 ;  The 
Liverjwol,  L.  E.  [1893]  P.  154.  If  the  danger  to  the  tow  has  been  occa- 
sioned through  the  fault  or  neglioence  of  the  tug,  the  latter  is  not  entitled 
to  salvage  {The  Bohert  Dixon,  1879,  L.  E.  5  V.  D.  54;  The  Altair,  L.  E. 
[1897]  P.  105). 

Services  rendered  under  a  contract  of  towage  may  be  found  to  be 
salvage  services  owing  to  concealment  by  the  master  and  crew  of  the 
disabled  state  of  the  vessel  towed  {The  Kingaloclc,  1854,  1  Spinks  E.  &  A. 
263 ;  The  Canova,  1866,  L.  E.  1  A.  &  E.  54). 

The  GiviNc;  of  Advice  which,  being  followed,  is  the  means  of  saving  a 
ship,  has  been  held  to  be  salvage  service,  entitling  to  reward  {The  Eliza, 
1862,  Lush.  536);  conveying  information  so  as  to  enable  another  vessel  to 
perform  salvage  service  entitles  to  reward  {The  Sarah,  1878,  L.  E. 
3  P.  D.  39). 

Where  there  is  an  obligation  by  custom  or  by  contract  to  give  mutual 
support  and  assistance,  salvage  is  not  due.  This  applies  to  the  crew  of  the 
.salving  vessel  iis  well  as  to  the  owners  {The  Zc2)hyr,  1827,  2  Hag.  Adni.  43  ; 
The  HarHot,  1842,  1  Wm.  Eob.  439 ;  The  Maria  Jane,  1850,  14  Jur.  857). 

Wliere  a  person  renders  services  in  the  nature  of  salvage  to  a  vessel 
which  he  at  the  time  hand  fide  believes  to  be  his  own  by  purchase  or 
otherwise,  lie  is  not  precluded  from  recovering  salvage  reward  in  respect 
of  sucli  services  l)ecauKe  it  turns  out,  in  fact,  that  the  vessel  was  not  his 
property  {The  Lifiry,  1887,  6  Asp.  M.  C.  255). 

Where  vessels  and  their  cargoes,  having  been  tahcn  hy  pirates,  are  recap- 
tured by  any  of  Her  Majesty's  ships,  one-eighth  of  the  value  is  to  be  paid 
in  lieu  of  salvage  (13  &  i4  Vict.  c.  26,  s.  5). 

Salvage  of  Fishing  Boats  and  their  gear  in  the  North  Sea  and  the  seas 
between  France  and  the  United  Kingdom  is  specially  dealt  with  in  the 
Fisheries  Acts.  See  especially  6  &  7  Vict.  c.  79,  s.  15;  31  &  32  Vict, 
c.  45,  ss.  6,  21,  Sched.  1,  art.  xxii. ;  46  &  47  Vict.  c.  22,  .s.  2,  Schcd.  1,  art. 
XXV.     For  a  proper  understanding  of  the  ])rovi>iions  of  these  Acts  reference 


76  SALVAGE 

must  be  made  to  the  Acts  and  to  the  various  Orders  in  Council  bringing 
them  into  force.  The  substance  of  these  enactments,  however,  is  that  all 
fishing  boats  and  their  gear  picked  up  at  sea  are  to  be  handed  over  to  the 
collector  of  customs  or  receiver  of  wrecks,  who  may  fix  the  amount  of 
salvage. 

Salvage  reward  is  not  due  where  the  necessity  for  the  salvage  service 
arises  from  the  fault  of  the  salving  vessel  {Cargo  ex  Capella,  1867,  L.  K.  1 
A.  &  E.  356). 

The  right  to  salvage  may  be  lost  by  the  misconduct  of  the  salvors. 
Any  misconduct  will  effect  a  reduction  of  the  salvage  award  (see  infra, 
p.  82) :  to  deprive  the  salvor  altogether  of  his  right  the  misconduct  must 
be  wilful  {The  Atlas,  1862,  Lush.  518,  528),  or  at  anyrate  so  great  that  the 
vessel  is  placed  in  a  position  of  as  great  or  greater  danger  than  she  was  in 
when  the  salvage  service  commenced  {TIic  Dulic  of  Manchester,  1846,  2 
Wm.  Eob.  470,  1847,  6  Moo.  P.  C.  90 ;  The  Neptune,  1842,  1  Wm.  Eob. 
297 ;  The  Loekwoods,  1845,  9  Jur.  1017  ;  The  Yan-Yean,  1883,  L.  E.  8  P.  D. 
147).  Salvage  reward  has  been  forfeited : — where  the  property  salved 
was  improperly  retained  by  the  salvors  under  circumstances  of  suspicion  of 
collusion  with  the  owner's  agent  {The  Lady  Worsley,  Pritchard's  Adm.  Dig. 
1860,  2  Spinks  E.  &  A.  253),  where  the  authority  of  the  owners  was 
forcibly  resisted  by  the  salvors  {The  Barefoot,  1850,  14  Jur.  841),  where  the 
master  of  the  salving  vessel  abstracted  goods  from  a  derelict  with  the 
evident  intention  of  not  restoring  them  {The  Scindia,  1865,  2  Mar.  Law 
Eep.  232,  decided  by  the  Vice-Admiralty  Court  of  Cape  Town ;  see  also 
Tlic  Florence,  1852,  16  Jur.  572),  where  boatmen  having  boarded  a  vessel 
in  distress,  resisted  the  subsequent  employment  of  a  steamer  {The  Martha, 
1859,  Swab.  489).  For  a  case  of  gross  misconduct  by  lifeboat-men,  see  The 
Capclla,  L.  E.  [1892]  P.  70.  Persons  improperly  intruding  themselves  in 
a  salvage  service  and  dispossessing  the  first  salvors  are  not  entitled  to  any 
reward  {The  Blenden  Hall,  1814,  1  Dod.  414;  The  Fleece,  1850,  3  Wm.  Eob. 
278).  Persons  assuming  the  character  of  salvors  when  more  competent 
persons  are  at  hand  are  entitled  to  no  indulgence,  and  if  they  run  the 
vessel  into  danger  will  be  deprived  of  reward  {The  Dygden,  1841,  1  Notes 
of  Cases,  115).  An  agreement  to  salve  the  ship  and  not  the  cargo  would 
be  regarded  as  misconduct  on  the  part  of  the  salvor,  disentitling  him  to 
salvage  (per  Dr.  Lushington  in  The  Westminster,  1841, 1  Wm.  Eob.  229).  A 
vessel  attempting  to  salve  another,  l)ut  through  negligent  navigation  sink- 
ing her  instead,  is  liable  in  damages  {The  Thetis,  1869,  L.  E.  2  A.  &  E.  365). 

4.  Who  are  Liable  fou  Salvage. 

The  general  rule  is :  The  reward  must  be  given  by  those  who  receive 
benefit,  and  who  would  have  suffered  the  loss  from  which  the  exertions  of 
the  salvors  have  saved  them  (Bell,  Com.  i.  597).  Accordingly,  salvage  is 
payable  by  ship,  cargo,  and  freight  at  risk.  Where  no  benefit  accrues,  no 
salvage  is  due ;  so  in  a  case  where,  by  recapture,  both  ship  and  cargo  were 
saved,  but  in  so  far  as  the  cargo-owner  was  concerned  to  no  better  effect 
than  to  make  him  liable  for  freight  in  consequence  of  the  ship's  arrival, 
while  the  goods  were  not  worth  the  freight,  the  cargo-owner  was  freed 
from  contribution  and  the  shipowner  alone  held  liable  in  respect  of  the 
ship  and  freight  {Cox,  1815,  4  Maule  &  Selwyn,  151).  Persons  having  an 
interest^,  though  not  the  owners,  would  seem  liable  {Fixe  Steel  Barges,  1890, 
L.  E.  15  P.  D.  142).  The  personal  effects  of  the  master  and  crew  (Kennedy, 
Civil  Salvage,  52)  and  the  wearing  apparel  of  passengers  {The  Willcm  III., 


SALVAGE  77 

1871,  L.  R.  3  A.  &  E.  487)  do  not  contribute.  The  private  property  of  an 
allied  sovereign  on  board  a  British  ship  recaptured  from  an  enemy  was 
freed  by  Ld.  Stowell  from  contribution  {Alexander,  1815,  2  Dod.  37).  The 
lender  upon  bottomry  Oi  respondentia  does  not  contribute  (Kennedy,  Civil 
Salvage,  179,  quoting  Park,  Marine  Insurance,  897-899,  and  cases  there ; 
Pritchard's  Admiralty  Digest,  1786).  The  shipowner  must  bear  the  whole 
burden  of  the  payment  of  salvage  where  the  need  of  the  salvage  service 
has  arisen  from  his  fault  or  the  fault  of  those  for  whom  he  is  responsible, 
and  when  he  is  not  protected  from  liability  by  the  terms  of  the  contract 
of  affreightment  (Duncan,  1878,  5  K.  742;  The  Btfrick,  1881,  L.  P.  6  P.  D. 
127 ;  Park,  1898,  25  P.  528 ;  cf.  on  general  average  loss  generally,  ScJdoss, 
1863, 14  C.  B.  (K  S.)  59,  and  Strccng,  Steel,  &  Co.,  188^9,  L.  E.  14  App.  Ca.  601). 

The  ship,  cargo,  and  freight  contribute  each  according  to  its  value.  Each 
is  liable  for  its  own  share  only  (Duncan,  1878,  5  P.  742  ;  The  Raishy,  1885, 
L.  P.  10  P.  D.  114).  "  In  practice  the  shipowner  frequently  pays  the  whole 
of  the  salvage.  He  can  do  so  safely,  if  either  the  cargo  remains  in  his 
possession,  and  he  can  therefore  enforce  his  lien  for  the  proportion  of  the 
salvage  payable  by  the  owner  of  the  cargo,  or  he  gets  from  the  owner  of  the 
cargo  proper  security  for  the  payment  of  that  proportion  "  (Kennedy,  Civil 
Salvage,  186).  Where  the  master  of  the  salved  ship  has  entered  into  an 
agreement  with  the  salvors  for  a  specified  svmi,  and  the  agreement  is  a  reason- 
able one,  the  owners  of  the  salved  ship  are  liable  in  the  first  instance  for  pay- 
ment of  the  whole  amount  (The  Cumhrian,  1887,  6  Asp.  M.  C.  151;  The 
PrinzHeinrich,  1888,  L.  P.  13  P.  D.  31). 

The  proper  rule  for  valuing  the  cargo  for  salvage  contribution  is  to 
calculate  it  at  the  place  where  the  salvage  services  terminate  (The  George 
Dean,  1857,  Swab.  290;  The  Norma,  1860,  Lush.  124),  "but  in  practice  the 
cargo  contributes  to  the  salvage  as  part  of  the  general  average  at  the  end 
of  the  voyage,  upon  its  value  then.  This  seems  to  be  contrary  to  sound 
principles,  but  it  is  convenient "  (Carver,  Carriage  hy  Sea,  352  ;  cf.  remarks 
by  Dr.  Lushington  in  The  Norma,  ut  supra,  at  p.  127). 

Freight  of  course  only  contributes  if  it  is  at  risk,  i.e.  if  it  has  not 
been  paid  in  advance  and  is  not  due  whether  the  cargo  is  delivered  or 
not.  The  value  of  the  freight  should  be  calculated  in  a  similar  manner 
to  the  value  of  the  cargo  as  at  the  place  where  the  salvage  services 
terminate  j^ro  rata  itineris  peracti  "  and  the  other  equities  of  the  case " 
(The  Norma,  1860,  Lush.  124);  "in  practice  it  is  matle  to  contribute  to 
salvage,  as  to  general  average,  upon  the  state  of  facts  at  the  end  of  the 
voyage"  (Carver,  Carriage  hy  Sea,  351). 

Although  frequently  treated  in  the  same  manner  as  General  Av^erage 
expenditure,  salvage  is  not  necessarily  General  Average  (see  Average, 
ante,  i.  365).  Whether  it  is  or  is  not,  when  it  approaches  General  Average 
or  when  it  is  to  be  treated  as  such  or  not,  are  questions  too  complicated 
to  be  dealt  witli  here.  For  a  full  discussion  of  them  see  Carver,  Carriage 
hy  Sea,  ss.  393-401 ;  Lowndes,  General  Average,  p.  149  and  pp.  157-181 ; 
and  the  ca.ses  of  Kemp,  1866,  6  B.  &  S.  723;  Joh,  1856,  6  E.  &  B.  779; 
Moran,  1857,  7  E.  &  B.  523;  Walthew,  1870,  L.  P.  5  Exch.  116  ;  Schuster, 
1878,  L.  R.  3  Q.  B.  D.  418;  A7idtrson,  1884,  L.  P.  10  App.  Ca.  107. 

The  cost  of  litigation  respecting  salvage  is  contributed  by  the  ship, 
cargo,  and  freight  according  to  their  values  (Hick,  1895,  1  Com.  Cas.  244). 

Insurers  are  lialjle  to  recoup  owners  of  ship  and  cargo  for  salvage 
claims  paid  by  them  for  rescuing  the  subjects  insured  from  perils  insured 
ogains/.  It  has  Iteen  held  that  a  claim  for  life  salvage  is  not  insured 
against  under  tlie  ordinary  (Lloyd's)  form  of  insurance   policy  (Nourse, 


78  SALVAGE 

L.  E.  [1<S96]  2  Q.  B.  16).  When  the  circumstances  rendering  salvage 
necessary  are  caused  by  the  original  unseaworthiness  of  the  ship,  a  claim 
is  not  good  against  insurers  {Ballantyne,  L.  R.  [1896]  2  Q.  B.  455 ;  cf. 
Park,  1898,  25  E.  528).  If  the  salvage  charges,  when  added  to  the  other 
losses,  would  make  the  total  sum  payable  by  the  insurers  greater  than 
the  sum  insured,  the  excess  must  be  borne  by  the  insured,  i.e.  charges 
for  salvage  do  not  come  under  the  Sue  and  Lahour  Clause  of  a  policy  of 
insurance  (Aitchison,  1879,  L.  E.  4  App.  Ca.  755).  This  decision  has 
been  much  canvassed  (see  ante,  vol.  viii.  p.  231,  and  M'Lachlan,  Merchant 
Shivping,  679). 

5.  Amount  of  Eeward. 

(a)  In  the  Case  of  an  Agreement. — An  agreement  between  those  in 
charge  of  a  ship  in  distress  and  salvors,  as  to  the  amount  of  salvage 
reward,  will  in  general  be  upheld  by  the  Court  (Bankt.  i.  9.  40 ;  Mulgrave, 
1827,  2  Hag.  Adm.  77 ;  The  Henry,  1851,  15  Jur.  183 ;  The  Arthur,  1862, 
6  L.  T.  N.  S.  556).  It  may,  however,  be  disregarded  if  in  the  opinion  of 
the  Court  it  would  lie  inequitable  to  enforce  it.  It  can,  of  course,  be  set 
aside  on  the  ordinary  grounds  of  fraud  {The  Theodore,  1858,  Swab.  351; 
The  Grus.  V.,  1862,  Lush.  583  ;  The  Generous,  1868,  L.  E.  2  A.  &  E.  57; 
Highlcy  v.  Smart,  1874,  in  the  Supreme  Consular  Court  of  Constantinople, 
Pritchard's  Adm.  Dig.  1876),  or  concealment  of  material  facts  {The  Kinga- 
locJc,  1854,  Spinks  E.  &  A.  263 ;  but  see  The  Jonge  Andries,  1857,  Swab. 
226,  303).  The  Courts  also  disregard  an  agreement  where  it  would  be 
inequitable  to  enforce  it.  They  will  not  enforce  an  agreement  if  it  be 
manifestly  unfair  and  unjust  {AkerUoom,  1881,  L.  E.  7  Q.  B.  D.  129, 
opinion  of  Brett,  L.  J.,  at  p.  133 ;  The  Strathgarry,  L.  E.  [1895]  P.  264, 
270).  "It  is  the  province  of  the  Court  of  Admiralty  in  Scotland  to 
regulate  the  rate  of  salvage,  on  a  due  consideration  of  the  danger  and 
exertion;  repressing  any  oppressive  promises  which  in  the  moment  of 
anxiety,  alarm,  and  danger  those  in  hazard  may  be  induced  to  give  "  (Bell, 
Com.  i.  596).  In  Buchanan  (1867,  5  Macph.  973),  an  action  was  raised  for 
£2000  in  name  of  salvage.  The  defence  was  that  the  service  was  rendered 
under  a  contract  for  £50.  The  issue  tried  was — whether  the  services  were 
rendered  under  contract,  and  whether  the  contract  was  just  and  reasonable. 

What  is  an  inequitable  agreement  ?  "  On  this  point  two  ingredients 
are  commonly  referred  to.  First,  the  parties  contracting  must  be  shown 
not  to  have  contracted  on  equal  terms.  I  am  inclined  to  think  that,  in 
general,  in  the  case  of  salvage  services  contracted  for  and  about  to  be 
performed,  the  parties  are  on  unequal  terms,  and,  therefore,  the  mere 
fact  of  their  standing  in  such  a  position  will  not  invalidate  the  agreement. 
If,  however,  contracting  on  unequal  terms — that  is  to  say,  the  master  of 
the  salved  ship  being  at  a  disadvantage — it  farther  appears  that  the  sum 
insisted  upon  is  exorbitant,  then  the  two  ingredients  exist  which  will 
induce  the  Court  not  to  uphold  the  agreement "  (per  Butt,  J.,  in  The  Rialto, 
L.  E.  [1891]  P.  175,  178).  For  examples  of  salvage  agreements  set  aside, 
besides  the  cases  already  cited,  see  Cargo  ex  Woosung,  1875,  3  Asp. 
M.  C.  50  ;  rev.  C.  A.  L  E.  1  P.  D.  260 ;  The  'Medina,  1876,  L.  E.  1  P.  D.  272, 
2  P.  D.  5  ;  The  Silesia,  1880,  L.  E.  5  P.  D.  177 ;  The  Mark  Lane,  1890, 
L.  E.  15  P.  D.  135;  The  Altair,  L.  E.  [1897]  P.  105.  But  a  bargain  for 
salvage,  though  stipulating  for  a  large  reward,  that  is  to  say,  a  bargain, 
though  a  hard  bargain,  will  be  upheld  if  the  stipulated  reward  is  not 
exorbitant  {The  Firefly,  1857,  Swab.  240;  The  Helen  and  George,  1858, 
Swab.  368).     So,  on  the  other  hand,  an  agreement  will  not  be  set  aside 


SALVAGE  79 

at  the  instance  of  the  salvors  because  the  execution  of  it  has  turned  out 
more  difficult  than  was  anticipated  {The  Jo  age  Andries,  1857,  Swab.  226, 
303 ;  The  Waverley,  1871,  L.  E.  3  A.  &  E.  369).  But  if  circumstances 
supervene  which  make  the  services  rendered  of  a  different  character  from 
what  was  contemplated  by  the  agreement,  the  agreement  will  be  dis- 
regarded {The  Westlourne,  1889,  L.  E.  14  P.  D.  132). 

While  dealing  with  salvage  agreements  it  must  be  kept  in  mind  that 
"  a  salvage  agreement  fixes  the  amount  to  be  paid  for  salvage,  but  leaves 
untouched  all  the  other  conditions  necessary  to  support  a  salvage  award, 
one  of  which  is  the  preservation  of  some  part  at  least  of  the  res,  that  is, 
ship,  cargo,  or  freight"  (Kennedy,  Civil  Salvage,  42,  approved  in  The 
Hesiia,  L.  E.  [1895]  P.  D.  193,  199 ;  The  Benpor,  1883,  L.  E.  8  P.  D.  115). 
This  rule  may  be  elided  by  the  terms  of  agreement,  as  in    The  Alfred, 

1884,  5  Asp.  M.  C.  214,  where  remuneration  for  work  done  by  the 
salving  vessel  was  given  in  terms  of  the  agreement,  although  the  attempt 
at  salvage  failed  and  the  vessel  in  distress  became  a  total  loss. 

An  agreement,  to  be  binding,  must  be  made  by  a  person  who  has 
authority  {The  Enchantress,  1860,  30  L.  J.  Adm.  15  ;  The  Inchmaree,  Feb.  15, 
1899,  W.  N.  22).  An  agreement  with  insurers  to  raise  a  sunken  vessel  has 
been  held  not  to  bind  the  owners  {The  Solway  Prince,  L.  E.  [1896]  120). 
The  master  of  a  ship  has,  in  general,  power  to  bind  the  owners  of  the  ship 
{The  True  Blue,  1843,  2  Wm.  Eob.  176;  The  Elise,  1859,  Swab.  436;  The 
Arthur,  1862,  6  L.  T.  K  S.  556;  The  Cumhrian,  1887,  6  Asp.  M.  C.  151; 
and  see  opinion  of  Brett,  M.  E.,  in  The  Benpor,  1883,  L.  E.  8  P.  D.  115 ; 
for  a  case  where  the  owners  were  not  bound,  see  The  Mariposa,  L.  R  [1896] 
P.  273),  but  not  the  owners  of  the  cargo  {Anderson,  1884,  L.  E.  10  App. 
Ca.  107).  The  owners  of  the  cargo  are  only  bound  if  tlie  agreement  is 
a  reasonable  one.  The  shipowner,  in  the  case  of  an  agreement,  is  liable 
in  the  first  instance  to  the  salvors  for  the  whole  amount  of  the  stipulated 
reward  (see  siqyra,  p.  77).  It  is  not  quite  clear  whether  the  master  of 
a  salving  sliip  can  bind  his  own  officers  and  crew  as  to  the  amount  of 
reward.  The  better  opinion  seems  to  be  that  he  can  when  the  agreement 
is  made  hefore  the  performance  of  the  salvage  services  (see  Kennedy, 
Civil  Salvage,  pp.  222-224;  and  The  Elise,  1859,  Swab.  436 ;  The  Nasmyth, 

1885,  L.  E.  10  P.  D.  41;  The  Britain,  1839,  1  Wm.  Eob.  40;  The  Sarah 
Jane,  1843,  2  Wm.  Eob.  110  ;  The  Lichmaree,  supra). 

The  master  may  cancel  an  agreement  entered  into,  and  the  shipowner 
cannot  then  set  it  up  {The  Africa,  1854,  1  Spinks  E.  &  A.  299). 

The  opinion  has  been  expressed  that  the  captain  of  a  Queen's  ship 
performing  salvage  services  cannot  make  an  agreement  as  to  tlie  amount  of 
reward  {Cargo  ex  Woosung,  1876,  L.  E.  1  P.  D.  260). 

(b)  Where  there  is  no  Agreement. — The  jurisdiction  of  the  Court  is  untram- 
melled in  considering  the  quantum  meruit.  The  great  principle  on  which 
these  determinations  ought  to  be  conducted,  as  repeatedly  laid  down  by  Ld. 
Stowell,  is  to  give  a  liberal  remuneration,  looking  not  merely  to  the  exact 
quantum  of  service  performed,  but  to  the  general  interests  of  the  navigation 
and  commerce  of  the  country,  which  are  greatly  protected  by  exertions  of 
this  nature  (\)c\\,  Com.  i.  598).  "The  amount  of  salvage  reward  due  is 
not  to  be  determined  Ity  any  rules ;  it  is  a  matter  of  discretion,  and  probal)ly 
.  .  .  no  two  tribunals  would  agree  "(per  Dr.  Lushington  in  2'heCuba,  1860, 
Lu.sh.  14).  A  history  of  the  decided  cases  isnot  any  more  useful  than  a  collection 
of  arbiters'  awards.  Eeference  may,  however,  be  made  to  the  following  cases 
in  which  salvage  reward  was  considered  in  the  Court  of  Session :  Davidson, 
1844,  G  D.  765;  Bohinson,  1851,  13  1).  592;  Otis,  1862,  24  D.  419 ;  Duncan, 


80  SALVAGE 

1878,  5  E.  742 ;  The  Berlin,  1882,  9  K.  1057 ;  Bennet,  1887,  24  S.  L.  E. 
625  ;  Lawson,  1888,  15  E.  753  ;  The  Queen,  1892, 19  E.  380.  In  Pritchard's 
Aelmiralty  Digest  (pp.  1920-2118)  there  is  collected  an  enormovis  number 
of  awards  made  by  Courts  in  all  parts  of  the  world,  and  ranging  in  amount 
from  £29,000  to  £50.  These  are  admirably  arranged  and  digested,  and 
should  be  consulted  if  examples  are  desired.  There  are,  however,  some 
definite  principles  to  be  observed  and  several  distinct  rules  to  be  applied 
in  determining  the  amount  of  a  salvage  award.  "  Salvage  is  not  governed 
by  the  ordinary  rules  which  prevail  in  mercantile  transactions  on  shore. 
Salvage  is  governed  by  a  due  regard  to  benefit  received,  combined  with  a 
just  regard  for  the  general  interests  of  ships  and  marine  commerce  "  (per  Dr. 
Lushington  in  The  Fusilier,  1865,  Brown.  &  Lush.  341,  347).  Principles 
of  public  policy  dictate  not  only  the  propriety,  but  even  the  absolute 
necessity  of  establishing  a  liberal  recompense  for  the  encouragement  of 
those  who  engage  in  salvage  (opinion  of  Eyre,  C.  J.,  in  Nicholson,  1793,  2 
Bl.  H.  257).  It  is  important  so  to  remunerate  salvors  as  to  make  it  worth 
their  while  to  succour  ships  in  distress  (per  Lindley,  L.  J.,  in  The  City  of 
Chester,  1884,  L.  E.  9  P.  D.  182,  203). 

In  estimating  the  amount  of  salvage  reward  there  are  four  elements  to 

be  taken  into  account :  (1)  the  enterprise  of  the  salvors  and  the  risk  they 

run ;  (2)  the  degree  of  peril  encountered  by  the  salved  ship ;  (3)  the  degree 

of  labour  and   skill  which  the  salvors  incur  and  display,  and  the  time 

occupied;  (4)  the  value  of  the  ship  salved  {The  Clifton,  1834,  3  Hag.  Adm. 

117,  opinion  of  Sir  John  Nicholl,  at  p.  121 ;  The  Glenduror,  1871,  L.  E.  3 

P.  C.  589,  593  ;  The  Berlin,  1882,  9  E.  1057,  opinion  of  Ld.  Deas,  at  p.  1062  ; 

see  also  The  William  Beekford,  1800,  3  Eob.  A.  355).     There  seems  to  be  a 

slight  difference  of  opinion  as  to  which  of  these  elements  is  to  be  considered 

in  the  first  place,  i.e.  whether  a  salvage  service  is  to  be  considered  from  the 

point  of  view  of  the  salvor  or  the  point  of  view  of  the  salved  ship  (see 

Kennedy,  Civil  Salvage,  119  et  seq.;  opinions  of  Sir  John  Nicholl  in  The 

Traveller,  1837,  3  Hag.  Adm.  370,  and  The  London  Merchant,  1837,  3  Hag. 

Adm.  394,  and  of  Sir  James  Hannen  in  The  Werra,  1886,  L.  E.  12  P.  D.  52, 

that   the  property   in  jeopardy   and  its  value  is  the  first   consideration; 

opinion  contra,  by  Ld.  Chelmsford  in  The  Fusilier,  1865,  Brown.  &  Lush. 

341,  350,  and  by  Lindley,  L.  J.,  in  The  City  of  Chester,  1884,  L.  E.  9  P.  D. 

182,  202).     The  proper  course  would  seem  to  be  to  consider  all  the  elements 

together.     "  It  is  obvious  that  whilst  a  small  percentage  on  a  very  large 

value  might  be  an  ample  remuneration  in  one  case,  a  very  large  percentage 

on  a  small  value  might  be  a  very  inadequate  remuneration  in  another  case  " 

(per  Lindley,  L.  J.,  in  The  City  of  Chester,  ut  supra).     The  element  of  danger 

both  to  the  salved  ship  and  to  the  salvors  is  of  the  greatest  importance. 

"  A  salvage  service  which   hardly  exceeds   ordinary  towage  is  naturally 

remunerated  on  a  very  different  scale  from  an  heroic  rescue  from  imminent 

destruction  "  (per  Lindley,  L.  J.,  ut  supra.     See  also  as  to  the  peril  of  the 

salved  ship:  The    Werra,  1S8Q,L.  E.    12  P.  D.   52;   The  Edenmore,  L.  E. 

[1893]  P.  79 ;  The  Glengyle,  L.  E.  [1898]  P.  97,  A.  C.  519).     But  the  value 

of  the  property  saved  must  also  be  a  determining  factor  in  the  amount  of 

the  award.     Eemuneration  is  more  liberally  allotted  in  cases  of  large  value 

{The  Salacia,  1829,  2  Hag.  Adm.  262;  The  Earl  of  Eglinton,  1855,  Swab. 

7).     But  the  large  value  of  the  property  salved  must  not  be  allowed  to 

raise  the  quantum  to  an  amount  altogether  out  of  proportion  to  the  services 

actually  rendered  {The  Amdrique,    1874,  L.   E.   6  P.    C.  468).     The  most 

liberal  award  is  given  in  cases  of  derelict.     (As  to  what  is  a  derelict,  see 

The  Capella,  L.  E.  [1892]  P.  70.)     The  ancient  rule  used  to  be  to  give 


SALVAGE  81 

salvors  of  derelict  one-half  of  the  value  of  the  property  rescued.  This  rule 
is  no  longer  in  observance  {The  Aqiiila,  1798, 1  Eob.  A.  37  ;  The  True  Blue, 
1866,  L.  E.  1  r.  C.  250  ;  The  Janet  Court,  L.  R.  [1897]  P.  59).  Where  the 
owner  of  the  salved  property  appears,  more  than  a  half  is  never  given,  and 
a^  a  general  rule  the  reward  is  less  (Kennedy,  Civil  Salvage,  115;  The 
Scindia,  1866,  L.  E.  1  P.  C.  241 ;  The  Amdrique,  1874,  L.  E.  6  P.  C.  468 ; 
The  Cleopatra,  1878,  L.  E.  3  P.  D.  145).  Where  the  owners  do  not  appear, 
a  larger  proportion  than  a  half  may  be  given  {The  FMSche,  1873,  L.  E.  4 
A.  &  E.  127  ;  The  Anne  Helena,  1883,  5  Asp.  M.  C.  142 ;  Boiler  ex  Elephant, 
1891,  W.  N.  52,  where  a  derelict  boiler  realised  £58,  and  the  Court  of 
Admiralty  granted  the  salvors  £50  and  costs). 

Where  vessels  are  specially  fitted  out  for  the  purpose  of  rendering 
salvage  services,  the  award  will  be  large  {The  Juhilee,  1826,  3  Hag.  Adm. 
43  {note);  The  Glengyle,  L.  E.  [1898]  P.  97,  A.  C.  519).  The  Glcngyle  was 
rescued  from  a  situation  of  imminent  peril,  after  a  collision  with  another 
vessel,  by  two  steamers  specially  built,  maintained,  and  equipped,  with 
steam  up  night  and  day,  for  salvage  services.  The  Glengyle  with  her  freight 
and  cargo  was  valued  at  £76,596,  the  salving  steamers  were  worth  £22,000 
and  £20,000  respectively.  Gorell  Barnes,  J.,  awarded  £19,000  for  the 
service,  and  this  award  the  Court  of  Appeal  and  the  House  of  Lords  refused 
to  disturb. 

Services  rendered  to  vessels  carrying  passengers  are  highly  remunerated 
(Kennedy,  Civil  Salvage,  118  ;  The  Ardincaple,  1834,  3  Hag.  Adm.  151). 

Loss,  delay,  and  damage  to  the  salving  vessel  will  be  considered  in  fixing 
the  amount  of  award  {The  Salacia,  1829,  2  Hag.  Adm.  262,  270;  The 
Jane,  1831,  2  Hag.  Adm.  338 ;  The  Sunniside,  1883,  L.  E.  8  P.  D.  137 ;  The 
De  Bay,  1883,  L.  E.  8  App.  Ca.  559 ;  The  City  of  Chester,  1884,  L.  E.  9 
P.  D.  182  ;  The  Fdenmore,  L.  E.  [1893]  P.  79).  Expenses  properly  incurred 
are  to  be  allowed  for  (M.  S.  A.,  1894,  s.  510 ;  The  Edeniaore,  supra ;  The 
Sunniside,  supra),  lfi.sk  of  forfeiture  of  a  policy  of  insurance,  or  of  liability 
to  owners  of  cargo,  on  account  of  deviation  by  the  salving  vessel  must  be 
taken  into  account  {The  Farnley  Hall,  1881,  4  Asp.  M.  C.  499).  Deviation 
for  tlie  purjiose  of  saving  life  does  not  operate  as  a  forfeiture  of  an  insurance 
policy,  or  subject  the  shipowner  to  damages  in  a  question  with  owners  of 
cargo,  but  in  the  absence. of  express  agreement,  deviation  for  tlie  purpose 
of  saving  property  alone  has  these  effects  (see  Geneual  Ship,  ante, 
vol.  vi.  p.  120;  Scaramanga,  1880,  L.  E.  5  C.  P.  D.  295).  In  The  Silesia 
(1880,  I..  E.  5  P.  D.  177),  Sir  Eobert  Pliillimore  granted  a  mail  steamer 
performing  salvage  services,  in  addition  to  an  ordinary  award,  a  sum 
sullicient  to  cover  penalties  payal)le  for  deviation. 

Tlie  .serious  responsibility  undertaken  l)y  the  master  of  a  mail  steamer, 
or  the  captain  of  one  of  H.M.'s  sliips,  in  delaying  his  ship  to  pciforni  salvage 
service  was  considered,  and  an  enhanced  award  on  that  account  given,  in 
The  Martin  Luther  (1857,  Swab.  287)  and  The  Eivcll  Grove  (1835,  3  Hag. 
Adm.  209,  225). 

Another  circumstance  which  lias  to  1)C  taken  into  consideration  in 
determining  the  amount  of  award,  is  the  risk  salvors  always  run  of  getting 
notliing  at  all  by  reason  of  the  failure  of  their  efforts  to  save  {The  City  of 
Chester,  1884,  L.  !.'.  9  P.  D.  182,  202). 

H  there  is  an  agreement  for  payment  even  in  tlic  event  of  non-success, 
that  will  oi)crate  as  a  consideration  for  reducing  tlie  reward  {TJic  Edenmore, 
\.  l;.  [1893]  P.  79).  The  reward  will  also  be  reduced  if  there  is  a 
customary  obligation  of  mutual  su]ii)ort  {The  Collier,  1866,  T>.  E.  1  A.  Sc  E. 
83,  86 ;  and  cf.  supm,  p.  75).  Where  liounties  were  granted  by  the 
H.  Y.. — VOL.  xr.  (j 


82  SALVAGE 

Government  for  the  rescue  of  vessels  in  the  Arctic  regions,  these  were  taken 
into  consideration  in  a  question  of  salvage  {The  Swan,  1839, 1  Wm.  Eob.  68). 
Misconduct  of  the  salvors,  where  not  so  great  as  to  forfeit  all  title  to 
reward  (see  su2Jra,  p.  76),  will  operate  as  a  consideration  for  reduction 
{The  Dantzig  Packet,  1837,  3  Hag.  Adm.  383;  The  Glascoiv  Packet,  1844, 
2  Wm.  Bob.  306;  The  Dossitei,  1846,  10  Jur.  865;  The  Clarisse,  1856, 
Swab.  129).  A  display  of  ignorance  or  want  of  skill,  resulting  in  damage 
to  the  vessel  salved,  has  the  same  effect.  Knowledge  and  skill  are  to  be 
expected  from  salvors  according  to  their  stations  in  life  {The  Lockivoods, 
1845,  9  Jur.  1017;  The  Cajn  Packet,  1848,  3  Wm.  Eob.  122;  The  Rosalie, 

1853,  1  Spinks  E.  &  A.  188;  The  Perla,  1857,  Swab.  230;  The  Magdalen, 
1861,  31  L.  J.  Adm.  22 ;  The  Cheerful,  1885,  L.  R.  11  P.  D.  3 ;  The  Dicina, 
L.  R  [1892]  P.  58). 

When  the  officers  and  crew  of  a  Queen's  ship  are  salvors,  the  fact  that 
they  do  not  risk  private  property  will  be  taken  into  account  in  fixing  the 
amount  of  the  award  {The  Iodine,  1844,  3  Notes  of  Cases,  140  ;  The  Earl  of 
Eglinton,  1855,  Swab.  7). 

Etcaptiire. — For  award  in  cases  of  recapture  by  Her  Majesty's  ships, 
see  supra,  p.  66. 

0.  Appoktionment  of  the  Award. 

The  apportionment  of  the  award  among  the  salvors  is,  like  the  deter- 
mination of  the  amount  of  the  award  itself,  a  question  of  circumstances. 
Some  definite  rules  are,  however,  observed. 

Where  there  are  Two  or  More  Sets  of  Salvors. — Where  the  different  sets  of 
salvors,  whether  rendering  their  services  contemporaneously  or  not,  are  not 
rivals,  the  reward  will  be  apportioned  amongst  them  according  to  the  value 
of  their  services  {The  Jonge  Bastiaan,  1804,  5  Eob.  A.  322;  The  Nicolaas 
Witzcn,  1837,  3  Hag.  Adm.  369 ;  The  Amerique,  1874,  L.  E.  6  P.  C.  468). 
Where  the  services  are  not  contemporaneous,  special  favour  is  shown  to  the 
first  set  of  salvors  {The  E.  U.,  1853,  1  Spinks  E.  &  A.  63 ;  The  Santipore, 

1854,  1  Spinks  E.  &  A.  231;  The  Magdalen,  1861,  31  L.  J.  22;  The 
Zivietta,  1883,  L.  E.  8  P.  D.  24).  A  second  set  of  salvors  unwarrantably 
and  unnecessarily  dispossessing  the  first  set  will  receive  nothing  {siqjra, 
p.  76);  if  they  are  acting  in  hond  fide,  they  may  get  a  small  reward  {The 
Maria,  1809,  Edw.  175) ;  if  their  interference  is  justifiable  and  necessary,  they 
will  get  the  larger  share  of  the  reward  {The  Pickwick,  1852,  16  Jur.  669). 

Ajjportionment  among  Owner's,  Master,  and  Crew  of  Salving  Vessel. — In 
earlier  days,  when  salvage  service  was  chiefly  performed  by  the  personal 
exertions  of  the  master  and  crew  of  the  salving  ship,  the  claim  of  the 
owners  to  share  in  the  reward,  unless  in  special  circumstances,  was  regarded 
as  slight  {The  Jane,  1831,  2  Hag.  Adm.  338,  343;  The  Nicolina^,  IM2>, 
2  Wm.  Eob.  175).  "  In  later  times  the  introduction  of  steam-power  has 
effected  a  considerable  change  in  the  practice  of  the  Court  (of  Admiralty),  and 
no  doubt  reasonably,  for  a  steamer  is  now  most  frequently  the  principal 
salvor.  It  is  equitable  in  such  cases  that  the  owners,  on  whom  the  chief 
risk  and  all  the  expense  fall,  should  be  rewarded  in  a  much  higher 
proportion  than  owners  were  formerly,  and  the  Court  has  acted  accordingly  " 
(per  Dr.  Lushington  in  The  Enchantress,  1860,  30  L.  J.  Adm.  15 ;  see  also 
The  Palmyra,  1872,  1  Asp.  M.  C.  182).  Time  is  nowadays  of  much  greater 
value,  and  the  delay  involved  in  the  performance  of  salvage  service  subjects 
the  owner  of  a  steamer  to  loss.  The  risk  of  damage  to  a  steamer  towing 
another  is  considerable,  and  the  other  risks  enumerated  above  (p.  81) 
have  to  be  regarded.     All  these  considerations  have  led  the  English  Court 


SALVAGE  83 

of  Admiralty,  when  the  steamer  herself  is  the  principal  salvor,  to  award  to 
the  owners  a  major  portion  of  the  salvage  reward.  This  proportion  has,  in 
ordinary  cases,  been  steadily  growing.  Dr.  Lushington  never  gave  to  the 
owners  more  than  one-half  of  the  sum  awarded ;  Sir  Eobert  Phillimore 
gave  usually  two-thirds ;  Sir  Charles  Parker  Butt,  three-fourths  (Kennedy, 
Civil  Salvage,  153 ;  "Williams  and  Bruce,  Admiralty  Practice,  160) ;  while  Sir 
John  Gorell  Barnes,  in  the  most  recent  reported  cases,  has  exceeded  this 
amount.  In  The  Edenmore  (L.  E.  [1893]  P.  79),  out  of  an  award  of  £5350 
the  owners  received  £4225,  equal  to  -79,  or  nearly  four-fifths  of  the 
whole.  In  The  Spree  (L.  E.  [1893]  P.  147),  out  of  £12,000  the  owners' 
share  was  £9200,  or  '76  of  the  award.  In  the  only  recent  Scots  case, 
Bcnnct  (1887,  24  S.  L.  E.  625),  Ld.  Fraser  gave  two-thirds  to  the  owners. 

Apart  from  the  specialties  of  towage  by  steamers,  the  owners  of  a  ship 
are  always  entitled  to  some  reward  {The  Watt,  1843,  2  Wm.  Eob.  70 ;  The 
Nicolina,  1843,  2  Wm.  Eob.  175 ;  The  Charles,  1872,  L.  E.  3  A.  &  E.  536 ; 
The  Charlotte,  1848,  3  Wm.  Eob.  68)  when  she  has  assisted  the  salvage 
service  or  supplied  the  salvors  (see  The  Two  Friends,  1844,  8  Jur.  1011). 
The  owners  of  fishing  vessels  performing  salvage  service  have  always  been 
held  entitled  to  a  large  portion  of  the  award  (The  Louisa,  1843,  2  Wm. 
Eob.  22,  26). 

The  master  of  the  salving  vessel  is  entitled  to  a  large  share.  On  his 
shoulders  in  all  cases  lies  the  burden  of  responsibility  for  the  whole  under- 
taking, and  frequently  a  big  part  of  the  actual  work.  The  other  officers  and 
creir  are  usually  allotted  shares  in  the  award  according  to  their  ratings  on 
the  portage  bill.  Following  are  some  selected  examples  of  apportionment — 
one  being  salvage  by  a  fishing  smack ;  three  by  sailing  vessels ;  three  by 
steamers,  two  of  these  the  latest  reported  cases  of  apportionment  in  the 
English  Admiralty  Court,  and  one  the  latest  in  the  Court  of  Session.  (For 
a  lariije  collection  of  examples  of  apportionment,  see  Pritchard,  Adm.  Dig. 
2119-2123.) 


Owner.s.       Master.         ]\Iate.  Crew. 


Total 
Award. 


r/ie^//;!''m  (salvage  by  a  fishing      £3r)0  £230  £120  £300  £1,000 

smack)  (1837,  3  Hag.  Adm.      =-35  ='23  =-12         (3  seamen 

254)  £90  eacli,  3 

boys  £10 

each) 

=  •3 

77ie  Mco/irm  (1843, 2  Wm.  Rob.      £100  £100  £100  £250  £550 

175)  =-18  =-18  =-18  =-45 

rru    n      1-      /iQ.o   -  T       c-cc.\     5  £C00  £400  £250  £550  £1,800 

The  Caroline  {\?>A^,  *  Jur.  OGO)    J  —-q-j  =-2->  =-14  =-3 

77ic/Wr»i/ra(1872,  1  Asp.  M.C.  £500  £350  £G50  £1,500 

182)  =-33  =-23  =-43 

The  Edenmore  (L.    I!.  [Ih!)!!]  !'.  £4225  £375  £750  £5,350 

70  =-79  =-07  =-14 

Tk    V        n    I?  riQOQi  P  1J7^  /  ^^^^^  ^^'^'^  ^-000  £12,000 

y/ie  .S/jree  (L.  K.  [1893J  r.  14/)  ■(    _.'Ty  =•()"  ^■17 

The  Arabia  (1887,  24  S.  L.  R.  £GGG  13  4  £GG  13     4  £2(;G  13     4  £1,000 

028)  =-G7  =-07  =-27 

The  non-navigating  members  of  the  creiv  do  not  usually  receive  a  full 
share.  In  The  Spree  (si'jira),  Oorell  Barnes,  J.,  allowed  only  a  half  share 
each,  according  to  his  rating,  to  the  surgeon,  stewards,  stewardess,  cooks, 
baker,  and  cabin  boys.  In  The  Arabia  (supra),  Ld.  Fraser  allowed  nothing 
at  all  to  several  Lascars  cmiiloyod  as  cooks  and  stewards.  Cattlemen 
nominally  on  the  ship's  books,  but  really  in  (Im'  cTiijil'iyiin h!  of  Ibc  (l^vIU'r  nf 


84  SALVAGE 

the  cargo,  were  not  allowed  to  participate  in  a  salvage  award  in  The 
Coriolamis,  1890,  L.  E.  15  P.  D.  103.  For  apportionment  to  ajjprentices  and 
ho7js,  see  The  Bculah  (1842,  1  Wm.  Eob.  477),  The  Caroline  (1843,  7  Jur. 
660),  The  George  Dean  (1857,  Swab.  290),  The  Raschc  (1873,  L.  R  4  A.  &  E. 
127);  to  passengers,  see  The  Salacia  (1829,  2  Hag.  Adm.  262,  269),  The 
Agamemnon  (1864,  Tritchard,  Adm.  Dig.  1800),  The  Hope  (1838,  3  Hag. 
Adm.  423),  The  Perla  (1857,  Swab.  230)  (see  also  supra,  pp.  70,  71). 

Extra  reward  is  given  to  those  who  do  the  most  of  the  work,  or  are 
exposed  to  the  greatest  hardship.  For  examples  of  this  special  apportion- 
ment, see  The  Jane  (1831,  2  Has.  Adm.  338),  The  Watt  (1843,  2  Wm.  Eob. 
70),  The  Nicolina  (1843,  2  Wm.  Eob.  175),  The  St.  Nicholas  (1860,  Lush.  29), 
The  Golondrina  (1867,  L.  E.  1  A.  &  E.  334),  The  Palmyra  (1872,  1  Asp.  M. 
C.  182),  The  Rasche  (1873,  L.  E.  4  A.  &  E.  127),  The  Skibladner  (1877,  L.  E. 
3  P.  D.  24),  also  the  cases  referred  to  supra,  p.  72. 

Agreements  whereby  seamen  abandon  their  right  to  salvage  are  void 
(M.  S.  A.,  1894,  s.  156  (1);  Bcnnet,  1887,  24  S.  L.  E.  625),  except  in  the 
case  of  vessels  which,  according  to  the  terms  of  the  agreement,  are  to  be 
employed  on  salvage  services  (ih.,  s.  156  (2);  see  The  Wilhelm  Tell,  L.  E. 
[1892]  P.  337).  Assignments  or  sales  of  salvage  made  prior  to  the 
accruing  thereof  are  not  binding  (M.  S.  A.,  1894,  s.  212).  These  provisions 
apply  to  an  assignment  for  a  valuable  consideration,  whether  before  or  after 
the  salvage  service  {The  Rosario,  1876,  L.  E.  2  P.  D.  41),  but  do  not  apply 
to  agreements  as  to  aijportionmcnt  of  salvage  {The  Afriha,  1880,  L.  E.  5 
P.  D.  192  ;  The  Wilhelm  Tell,  L.  E.  [1892]  P.  337).  Such  agreements  may 
be  upheld  by  the  Court  if  they  are  equitable  {The  Wilhelm  Tell).  The 
Court  of  Admiralty  in  England  has  always  asserted  the  right  to  enforce 
agreements,  or  not  to  enforce  them,  according  as  it  thinks  them  equitable 
or  inequitable  (r/ic  Wilhelm  Tell  and  cases  there,  pp.  347-348);  and  this 
right  of  control  extends  to  agreements  by  seamen  belonging  to  vessels 
engaged  on  salvage  services,  it  being  held  that  the  Act  only  makes  such 
agreements  not  illegal  {The  Ganges]  1869,  L.  E.  2  A.  &  E.  370).  The 
provision  of  the  statute  as  to  agreements  (s.  156)  does  not  apply  to  masters, 
pilots,  or  apprentices  (s.  742);  the  provision  as  to  sales  and  assignments 
(s.  212)  applies  to  apprentices,  but  not  to  masters  and  pilots.  Apprentices, 
however,  will  be  protected  by  the  Court.  Their  shares  do  not  belong  to  the 
shipowner  {The  Two  Friends,  1844,  8  Jur.  1011),  even  when  an  agreement 
is  made  to  that  effect  {The  Columbine,  1843,  2  Wm.  Eob.  186). 

Reccqjture. — Salvage  award  granted  by  a  Prize  Court  for  recapture  of  a 
British  ship  from  the  enemy  (see  suiwa,  p.  66)  does  not  vest  as  of  right  in 
the  officers  and  crews  of  Her  Majesty's  ships.  They  are  only  allowed  such 
interest  (if  any)  as  may  be  from  time  to  time  granted  to  them  by  the  Crown 
(27  &  28  Vict.  c.  25,  s.  55).  Such  apportionment  is  usually  made  by  pro- 
clamation by  the  Queen  in  Council.  The  proclamation  at  present  in  force 
is  dated  3rd  August  1886  {Statutory  Rules  and  Orders  Revised,  vol  v. 
p.  101). 

7.  Enforcement  of  Eights. 

As  a  general  rule,  ship  and  cargo  are  liable  each  for  its  own  share  of 
salvage  reward,  and  proceedings  must  be  taken  against  the  shipowner  and 
each  cargo-owner.  For  exceptions,  see  siqn-a,  p.  77.  The  salvors  have  a 
personal  action  against  the  persons  liable  to  pay  salvage  {Duncan,  1878,  5  E. 
742).  Any  one  or  more  persons  entitled  to  salvage  may  raise  an  action, 
whether  other  salvors  concur  with  them  or  not  {Bcnnet,  1887,  24  S.  L.  E, 
625).     The  Court  will  determine  the  amount  of  salvage  due,  and  award  the 


SALVAGE  85 

pursuers  their  share  (L'cnnet,  supra).  An  action  for  payment  of  salvage, 
when  raised  by  all  the  parties  entitled  to  salvage,  may  contain  conclusions 
for  apportionment  (Juridical  Styles,  iii.  175).  An  action  for  payment  of 
salvage  may  also  take  the  form  of  a  midtiplepoinding  (Bobinson,  1851, 13  D. 
592).  Where  the  amount  of  salvage  is  agreed  upon,  the  Court  of  Session  or 
the  Sheriff  Court  may  apportion  it,  and  may  appoint  some  person  to  carry 
the  apportionment  into  effect  (M.  S.  A.,  s.  55G).  If  the  amount  is  under 
£200,  the  Eeceiver  of  Wrecks  may  apportion  it  (s.  555). 

Where  the  value  of  the  property  saved  does  not  exceed  £1000,  or  the 
amount  claimed  does  not  exceed  £300,  questions  of  salvage  must  be 
determined  summarily  in  the  Sheriff  Court  (M.  S.  A.,  1894,  s.  547).  The 
Sherift'  Court  in  this  section  means  the  Court  having  jurisdiction  at  the 
place  wliere  the  vessel  is  first  brought  after  the  occurrence  by  reason 
whereof  the  claim  of  salvage  arises  (s.  548 ;  Summers,  1891,_  18  E.  879). 
The  procedure  would  appear  to  be  the  same  as  in  other  civil  causes  (11 
Geo.  IV.  and  1  Will.  iv.  c.  G9,  s.  23),  including  the  right  of  appeal  {ih.  and 
M.  S.  A.,  1894,  s.  549),  though  what  is  the  meaning  and  effect  of  the  word 
"  summarily "  is  not  easily  determined  (see  M.  S.  A.,  ss.  702-710;  Dove 
Wilson,  Sheriff  Court  Practice  (4th  ed.),  367;  Sinclair,  1883,  10  K-  1077). 
Where  appeal  is  competent,  a  record  of  the  evidence  must  be  kept  (Sinclair, 
siqrra). 

If  a  claimant  raises  an  action  for  salvage  in  the  Court  of  Session  and 
does  not  recover  more  than  £300,  he  is  not  entitled  to  expenses,  unless  the 
Court  certifies  the  case  as  a  fit  one  to  be  tried  otlierwise  than  summarily 
(M.  S.  A.,  s.  547,  subs.  (2) ;  Lauson,  1888,  15  E.  753). 

A  Court  of  appeal,  in  questions  of  salvage,  will  not  interfere  with  tlie 
amount  of  award  granted  by  the  judge  who  heard  the  evidence,  unless  it 
appears  that  the  priucii)les  of  law  wliich  are  recognised  and  settled  haje 
not  been  satisfactorily  and  trulv  and  properly  applied  (TheAm&iquc,  1874, 
L  E  G  r.  C.  468;  'fhr  Glcwjyle,  [1898]  A.  C.  519;  The  Berlin,  1882,  9  E. 
1057,  opinion  of  Ld.  Shand,  p.  1062;  The  Queen,  1892,  19  E.  386). 

In  cases  of  dispute,  the  Eeceiver  of  Wrecks  for  tlie  district  where  the 
property  is,  may,  on  the  application  of  either  party,  appoint  a  valuer  to  value 
it  (M.  S.  A.,  s.  551). 

"  Where  salvage  is  due  to  any  person  binder  the  M.  S.  A.,"  the  Eeceiver  of 
Wrecks  has  power  to  detain  the  ship  and  cargo  until  security  is  given  to  his 
satisfaction,  or,  if  the  claim  is  for  more  than  £200,  to  the  satisfaction  of 
the  Court  of  Session,  with  power  of  sale  in  default  of  payment  or  security 
(ss.  552,  553  ;  The  Lady  Katherine  Barham,  1861,  Lush.  404  ;  Otis,  1862,  24 
D.  419).  The  procedure  in  the  Court  of  Session  is  by  petition  (Otis).  The 
meaning  and  cifect  of  the  words  "due  under  the  Act"  in  sec.  552  are  not 
clear.  It  has  recently  been  held  that,  in  respect  of  the  jurisdiction  conferred 
ui)on  the  Courts  by  the  Act  (s.  565),  the  receiver's  powers  extend  to  any 
salvage  claims  whatever  (The  Fulham,  [1898]  V.  206).  This  judgment 
.seems  very  doubtful.  The  point  apparently  was  not  raised  in  the  case  of 
Otis  (supra). 

Some  special  provisions  are  enacted  by  the  M.  S.  A.  for  salvage  by  Her 
Majesty's  ships  (ss.  544,  557-564). 

The  salvor,  besides  his  personal  action  against  the  owners  of  the  ship 
and  cargo,  can  jirocecd  for  his  reward  in  rem,  i.e.  against  the  ship  and  cargo 
themselves  (liell,  Com.  i.  592,  ii.  103).  If  the  property  is  in  the  salvor's 
l)Ossession,  he  has  a  proper  right  of  retention  or  lien  over  it  until  he  is  paid 
his  due.  If  the  property  salved  is  not  in  the  salvor's  possession,  the.  law  of 
England  and  other  maritime  countries  gives  him  a  right,  which  in  England 


86  SANCTUAEY 

is  called  maritime  lien,  but  which  ought  properly  to  be  styled  hypothec. 
This  right  differs  from  lien  proper  in  that  it  does  not  require  possession, 
and  that  it  travels  with  the  res  and  may  be  enforced  against  it,  no  matter 
into  whosesoever  hands  the  res  may  come.  (See  the  Bold  Buccleugh,  1851, 
7  Moo.  P.  C.  C.  267 ;  The  Bipon  City,  L.  E.  [1897]  226,  op.  Barnes,  J.,  234 
d  seq.).  There  is  little  trace  of  this  hypothec  for  payment  of  salvage  in 
Scottish  law,  but  it  is  well  recognised  for  similar  obligations,  and  is  approved 
in  general  terms  by  our  institutional  writers  (Ersk.  Inst.  iii.  1.  34 ;  Bell, 
Co7)i.  i.  533,  ii.  26,  40,  Frin.  ss.  1397-1401).  It  may  now  be  taken  to  be 
established  in  the  law  of  Scotland  (Bell,  Frin.  s.  1397;  Ersk.  Frin.  (19th 
ed.)  275;  Currie,  1896,  24  E.  (H.  L.)  1).  The  question  of  ranking  of 
maritime  liens  may  be  of  importance  to  salvors  (see  Abbott,  Merchant 
Ships,  Part  V.  chap,  ii.,  and  M'Lachlan,  Merchant  Shippting,  chap.  xv.). 
Salvage  liens  rank  among  themselves  in  the  inverse  order  of  their  attach- 
ment to  the  res.  The  last  lien  in  time  is  thus  first  in  payment.  A  salvage 
lien  ranks  heforc  prior  bottomry  and  respondentia  liens  {Cargo  ex  Galam, 
1863,  Br.  &  Lush.  167,  181),  and  before  liens  for  wages  earned  before  the 
salvage  service  was  rendered  {The  Selina,  1842,  2  Notes  of  Cases,  18),  and 
probably  before  any  lien  for  damages  by  collision  (Marsden,  Collisions, 
91,  92)."  It  ranks  after  a  subsequent  bottomry  or  respondentia  lien  and 
liens  for  wages  subsequently  earned  {The  Selina,  supra).  Salvage  lien  ranks 
before  a  claim  on  the  part  of  the  Crown  for  forfeiture  of  the  property  for 
an  offence  against  the  revenue  laws  {Att.-Gen.  v.  Norsteclt,  1816,  3  Price,  97). 

Queen's  ships  are  free  from  arrest  (Williams  and  Bruce,  Aclm.  Fractice, 
250,  note  (k)).  There  seems,  however,  nothing  in  the  principles  of  the  law 
of  Scotland  to  forbid  an  action  against  the  Crown  for  services  rendered  to 
Her  Majesty's  ships.     (For  what  is  a  Queen's  ship,  see  supra,  p.  71.) 

The  Courts  of  this  country  have  no  jurisdiction  over  vessels  belonging 
to  a  foreign  sovereign,  so  that  in  the  case  of  salvage  services  rendered  to 
such  ships  a  remedy  is  not  available  in  this  country  {The  Constitution,  1879, 
L.  E.  4  P.  D.  39 ;  The  Farlement  Beige,  1879,  L.  E.  4  P.  D.  129 ;  1880,  L.  E. 
5  P.  D.  197;  see  also  an  American  case,  The  Schooner  Exchange,  1812,  2 
Curtis,  478 ;  and  cf  Alexander,  1815,  2  Dod.  37),  unless  with  the  consent 
of  the  foreign  Power  {The  Frins  FrederiJc,  1820,  2  Dod.  451). 

[Kennedy,  Civil  Scdvage ;  Bell,  Com.  in.  iv.  3.  3. ;  Abbott,  Merchant  Ships, 
Part  III.  chap.  x. ;  M'Lachlan,  Merchant  S]iip)ping,  chap.  xiii. ;  Arnould,  Marine 
Insurance  ;  Lowndes,  General  Average  ;  Carver,  Carriage  by  Sea ;  Temperley, 
Merchant  Shipping  Act,  1894.] 


Sanctuary,  Privilege  of  ;   Abbey  of  Holyrood.— 

From  a  very  remote  period  the  precincts  of  Holyrood,  as  the  site  of  a  royal 
residence,  formed  a  sanctuary  within  which  debtors  might  obtain  protection 
for  their  persons  from  the  diligence  of  the  law.  The  privilege  of  sanctuary 
was  formerly^  enjoyed  by  a  number  of  other  places  throughout  the  country, 
chiefly  of  a  religious  character.  At  the  Eeformation  the  privilege  was 
abolished  in  the  case  of  all  religious  establishments ;  and  thereafter  it  fell 
into  desuetude  elsewhere,  except  in  the  case  of  Holyrood,  where  it  still 
continued  in  force,  and  was  frequently  taken  advantage  of  up  till  the 
abolition  of  imprisonment  for  debt  by  the  Debtors  Act,  1880  (43  &  44 
Vict.  c.  34),  when  it  became  practically  obsolete  in  the  case  of  all  ordinary 
debtors.  The  area  over  which  the  privilege  extends  covers  a  circuit  of 
about  four  miles  and  a  quarter,  including  Arthur's  Seat  and  Salisbury  Crags, 
and  is  under  the  control  of  a  bailie  appointed  by  the  Duke  of  Hamilton  as 


SASINE  PROITJIS  MAXIBUS  87 

Keeper  of  Holyrood  House,  with  jurisdiction  in  all  civil  debts  contracted 
within  the  precincts.  The  right  of  sanctuary  affords  protection  to  civil 
debtors  only,  and  does  not  extend  to  debtors  of  the  king,  or  to  criminals 
(including  fraudulent  bankrupts),  or  to  persons  under  diligence  for  per- 
formance of  a  fact  within  their  own  power.  By  passing  within  the  limits 
of  the  sanctuary  a  debtor  is  protected  for  twenty-four  hours  only ;  but  he 
may  obtain  immunity,  so  long  as  he  remains  there,  by  having  his  name 
entered  in  the  record  of  the  Abbey  Court,  whereby  he  becomes  entitled  to 
a  certificate  of  protection,  and  is  then  under  the  protection  of  the  baron 
bailie.  The  concurrence  of  the  bailie  is  necessary  to  the  execution  of  all 
warrants  within  the  sanctuary.  The  immunity  is  not  lost  by  voluntary 
absence  for  a  shorter  period  than  suffices  to  raise  a  presumption  of  its 
abandonment,  nor  by  absence  brought  about  by  force  or  by  fraud  on  the 
part  of  the  creditor.  It  does  not  extend  to  debts  contracted  within  the 
sanctuary  itself,  in  respect  of  which  debtors  may  be  imprisoned  in  the 
Abbe}^  prison ;  where  also  persons  in  meditatione  fugce,  who  fled  within  the 
precincts,  are  liable  to  be  confiued  until  they  find  bail.  Persons  seeking 
refuge  in  the  sanctuary,  but  not  entitled  to  its  privileges,  may  be  seized 
with  concurrence  of  the  bailie  of  the  Abbey.  The  privilege  of  sanctuary 
does  not  extend  to  alimentary  debtors  committed  to  prison  by  warrant  of  a 
Sheriff  under  45  &  46  Vict.  c.  42,  s.  4. 

Effect  of  Retiral  to  Sanctuary  in  Bankruptcy. — By  the  Act  1696,  c.  5,  it 
was  declared  that  if  an  insolvent  debtor  under  diligence  by  horning  and 
caption  should  retire  to  the  Abbey  or  any  other  privileged  place  for  his 
personal  security,  he  should  be  holden  and  repute  to  be  a  notour  bankrupt. 
Jjy  the  Bankruptcy  Act,  1856  (19  &  20  Vict.  c.  79),  s.  7,  it  was  enacted 
that  notour  bankruptcy  should  be  constituted  inter  alia  by  insolvency 
concurring  with  a  duly  executed  charge  for  payment,  followed,  where 
imprisonment  is  competent,  by  the  debtor's  retreat  to  the  sanctuary  for 
twenty-four  hours.  Since  the  Debtors  Act,  1880,  this  mode  of  constituting 
notour  bankruptcy  has  become  practically  obsolete  in  the  case  of  all  ordinary 
debtors  ;  but  it  remains  applicable  to  such  debtors,  other  than  Crown  debtors, 
as  are  still  liable  to  imprisonment  under  the  provisions  of  that  Act. 

[Bell's  Com.  ii.  461 ;  Ersk.  iv.  3.  25  ;  Bankton,  iii.  14;  Ross's  Lcct.  i.  331 ; 
Bell's  Prin.^.  2315;  Mackenzie's  Observations,  p.  69.] 


Sasine. — See  Infeftment;  Registration. 


Sasine  PropriiS  lYIanibuS. — Reference  will  be  found  under 
"  Feu  Charter  "  to  the  early  ])i-actice  of  the  granter  of  the  feu  giving  sasine 
by  his  own  hands.  Practically,  the  only  modern  or  recent  survival  of  this 
custom  is  in  the  form  of  infeftment  given  by  a  liusband  to  his  wife,  usually 
for  her  liferent  after  his  death  in  tlie  event  of  her  surviving  him.  Prior  to 
1845  such  infeftment  was  usually  incorporated  in  the  husband's  sasine.  It 
might  proceed  with  or  without  a  warrant.  In  the  latter  case,  the  husband 
required  to  sign  the  instiutnent,  which  was  not  neces-ary  in  the  former 
case.  This  subsidiary  infeftment  mij,dit  be  grafted  on  the  husband's  sasine, 
whetiier  liis  title  was  being  maih;  u])  by  confirmation  or  by  resignation,  but 
it  is  to  be  observed  that  even  in  the  latter  case  the  wile  would  not  be 
entered  witii  the  superior.  It  would  have  made  no  difference  in  this  respect 
whether  the  superior's  charter  of  resignation  was  or  was  not  assignable, 
for  the  idea  of  sasine  propriis  mo.nihv^  was  not  a  qualified  transmission  of 


88  SAVINGS  BANKS 

the  existing  warrant,  but,  on  the  contrary,  the  prior  exhaustion  of  that 
warrant  by  the  husband's  plenary  infeftment,  and  then  that  he,  being  thus 
in  titido,  granted  a  separate  warrant,  express  or  implied,  in  favour  of  his  wife. 
The  Act  of  1845  did  not  apply  to  infef  tments  j;7'op7'i?'s  manibus,  as  indeed 
is  obvious,  for  that  Act  directs  sasine  to  be  given  by  a  notary,  which  could 
not  at  the  same  time  be  ex  iiropriis  manihus  of  the  granter  of  the 
conveyance.  It  does  not,  however,  appear  that  there  would  have  been 
anything  incompetent  in  recording  in  one  instrument  the  husband's 
infeftment  in  the  form  of  the  Act  of  1845  and  the  wife's  infeftment 
prop'iis  manihus  of  her  husband  in  the  old  form,  though  such  procedure 
and  instrument  would  have  been  inconvenient.  When  sasine  was 
superseded  in  1858,  no  machinery  was  introduced  to  adapt  iufeftments 
propriis  mmiihis  to  the  altered  procedure.  But  the  Consolidation  Act, 
1868  (s.  15),  contains  a  provision  intended  to  revive  the  practice,  as  to 
which  see  Infeftment. 

As  regards  burgage  property,  sasine  propriis  manihus  was  somewhat  of 
a  misnomer,  inasmuch  as  the  grant  contained  no  precept  of  sasine,  and  the 
sasine  was  the  act,  not  of  the  granter,  but  of  the  magistrates.  What  is 
meant  under  the  expression  is,  that  the  resignation  of  the  husband, 
on  which  the  wife  received  sasine  from  the  bailie,  was  made  projjriis 
manihus. 

Sasines  propriis  manihus  did  not  enjoy  the  immunity  from  challenge  on 
the  ground  of  erasures,  introduced  by  G  &  7  Will.  iv.  c.  33. 


Savings  Banks. — The  law  in  regard  to  savings  banks  is 
chiefly  statutory,  and  the  various  statutes  show  a  desire  on  the  part  of  the 
Legislature  to  encourage  such  institutions  by  conferring  on  them  certain 
benefits,  such  as  exemption  from  stamp  duties,  and  a  ready  and  inexpensive 
method  of  settling  questions  arising  out  of  the  administration  of  their 
affairs.  There  are  several  classes  of  savings  banks,  and  these  are  regulated 
by  separate  series  of  statutes.  The  term  generally  applies  to  (1)  Trustee 
Savings  Banks,  and  (2)  Post  Office  Savings  Banks.  Besides  these,  there 
are :  (3)  Military,  (4)  Naval,  and  (5)  Seamen's  Savings  Banks. 

I.  Trustee  Savings  Banks. — The  principal  Act  is  26  &  27  Vict.  c.  87, 
which  consolidated  and  amended  previous  Acts,  and  has  itself  been 
amended  by  43  &  44  Vict.  c.  36 ;  50  &  51  Vict.  c.  40;  50  &  51  Vict, 
c.  47 ;  54  &  55  Vict.  c.  21 ;  and  56  &  57  Vict.  c.  69.  The  provisions  of  59 
Geo.  III.  c.  62  still  apply  to  saving  banks  established  under  it,  unless  and 
until  they  choose  to  bring  themselves  under  the  later  Acts. 

Constitution  and  Description. — A  Trustee  Savings  Bank  is  a  society 
formed  by  any  number  of  persons  "for  the  purpose  of  establishing  any 
institution  in  the  nature  of  a  bank  "  to  receive  deposits  for  the  benefit  of 
the  depositors,  and  to  "accumulate  the  produce  of  so  much  thereof  as 
shall  not  be  required  by  the  depositors,  their  executors  or  administrators, 
at  compound  interest,"  returning  such  deposits  and  the  produce  thereof  to 
the  depositors,  their  executors  or  administrators,  deducting  therefrom  the 
amount  required  for  the  necessary  expenses  attending  the  management 
of  the  institution,  but  "  deriving  no  benefit  whatsoever  from  any  such 
deposit  or  the  produce  thereof  "  (26  &  27  Vict.  c.  87,  s.  2).  Such  a  society 
seems,  therefore,  to  be  constituted  by  trustees  and  managers.  A  Trustee 
Savings  Bank  may  not  bear  any  other  title  than  that  of  "  Savings  Bank 
certified  under  the  Act  of  1863,"  with  the  addition  of  the  local  name 
required,  and  may  not  be  described  in  any  manner  importing  that  the 


SAYINGS  BANKS  89 

Government  is  responsible  or  liable  to  the  depositors  for  the  deposits  (54 
&  55  Vict.  c.  21,  s.  1). 

To  entitle  savings  banks  to  the  benefits  of  these  Acts,  certain  regulations 
require  to  be  complied  with.  Thus  the  sanction  of  the  National  Debt 
Commissioners  to  their  formation  is  necessary  (1863  Act,  c.  87,  s.  2).  The 
Savings  Banks  Act,  1891  (54  &  55  Vict.  c.  21),  set  up  a  new  body,  viz. 
an  Inspection  Committee.  This  body  does  not  take  away  the  control 
formerly  vested  in  the  National  Debt  Commissioners,  but  they  are  given 
certain  duties  and  powers,  subject  to  the  approval  of  the  latter  (s.  3). 
Certain  powers  are  also  conferred  on  the  National  Debt  Commissioners,  e.g. 
power,  on  a  report  by  the  Inspection  Committee,  to  close  the  account  of 
the  trustees  of  the  bank  (s.  3  (3)  and  s.  5). 

Bales  and  Alterations  of  Eules.— The  rules  and  alterations  of  rules 
(which  are  not  prohibited)  require  to  be  entered  in  a  book  open  to  the 
inspection  of  depositors  (1863  Act,  c.  87,  s.  3).  Two  written  or  printed 
copies  of  rules  and  alterations  of  rules  have  to  be  sent  to  the  Registrar  of 
Friendly  Societies  (formerly  to  the  revising  barrister),  in  order  that  he  may 
certify  their  conformity  with  law  (s.  4). 

The  rules  must  provide  iiitcr  alia — 

(1)  That  while  salaries  and  remuneration  of  other  officers  may  be 
charged,  no  treasurer,  trustee,  or  manager  shall  derive  benefit  from  any 
deposit  beyond  his  actual  expenses. 

(2)  The  presence,  at  every  transaction  of  deposit  and  repayment,  of  not 
less  than  two  trustees,  managers,  or  paid  officers. 

(3)  The  production  of  the  depositor's  book  once  a  year. 

(4)  No  money  to  be  received  or  ^mid  except  at  the  office  or  branch 
office  and  during  usual  business  hours. 

(5)  I'uljlic  accounting  and  audit  not  less  than  once  every  half-year. 

(6)  Trustees  to  hold  meetings  once  every  half-year  and  keep  minutes 
(s.  6).  The  treasurer  and  other  officers  intrusted  with  the  receipt  or 
custody  of  money  must  give  security  (s.  8,  and  54  &  55  Vict.  c.  21,  s.  9). 

The  Trustees. 

(a)  Vestinrj  of  Property.— The  effects  of  savings  banks  are  vested  m  the 
trustees  for  the  time  being,  and  no  conveyance  is  necessary  as  to  succeeding 

trustees  (s.  10). 

{h)  In  Legal  Proceedings.— The  trustees  for  the  time  being,  in  their  own 
names  as  trustees,  are  the  proper  persons  to  sue  or  be  sued,  prosecute  or 
he  prosecuted,  in  any  action,  civil  or  criminal,  concernmg  the  property, 
right,  or  claim  of  any  savings  bank  ;  and  no  action  or  prosecution  shall  be 
allected  Ijy  tlie  death  or  removal  of  any  of  the  said  trustees  (s.  10). 

(c)  LiahilUy. — No  trustee  or  manager  is  personally  liable  except — 

(1)  For  moneys  actually  received  and  not  paid  over  by  him  in  accord- 
ance with  the  rules. 

(2)  Neglect  to  comply  with  tlie  regulations,  wliich,  as  stated  above, 
require  by  statute  to  be  sot  forth  in  the  rules. 

('.',)  Neglect  in  taking  security  from  officers  (s.  11). 

The  office  of  a  trustee  may  become  vacant  by  his  absence  from  all 
meetings  for  one  year,  and  his  neglect  to  perform  his  duties,  unless  a 
satisfactory  explanation  l^e  given  to  the  Committee  of  Insi^'ction.  Money, 
when  invested  by  tlic  trustees,  must  be  invested  in  the  Bank  of  England 
or  Bank  of  Ireland  in  the  names  of  the  National  Debt  Commissioners,  l)ut 
the  trustees  may  receive  money  from  depositors  to  be  invested  in  some 
otlicr  manner  permitted  by  tlie  rules  (ss.  15  and  16).  Such  are  tcnned 
"  special  investments,"  and  are  subject  to  certain  restrictions  under  54  & 


90  SAYINGS  BANKS 

55  Vict.  c.  21,  s.  1.0.  The  trustees  are  required  to  make  up  annually, 
and  to  transmit  to  the  National  Debt  Commissioners,  an  account  exhibiting 
the  balance  due  to  the  depositors ;  and  to  affix  publicly  in  the  office  of  the 
bank  a  duplicate  thereof,  along  with  a  list  of  the  trustees  and  managers 
(ss.  55  et  seq.  of  26  &  27  Vict.  c.  87).  Where  funds  belonging  to  a  savings 
bank  are  in  the  possession  of  an  insolvent  officer  of  the  bank,  it  has  a 
claim  preferable  to  other  creditors  (s.  14). 

Depositors. — Every  depositor,  on  making  a  first  deposit,  must  make  a 
declaration  in  prescribed  form  that  the  person  or  persons  on  whose  behalf 
the  deposit  is  made  is  or  are  not  entitled  to  (a)  any  deposit  or  subsequent 
benefit  from  the  funds  of  any  other  savings  bank;  or  (h)  any  other  funds 
in  the  same  bank.  A  false  declaration  involves  the  penalty  of  forfeiture 
of  the  deposit  to  the  National  Debt  Commissioners  (26  &  27  Vict.  c.  87, 
s.  38  ;  54  &  55  Vict.  c.  21,  s.  12 ;  Q^teen  v.  Littledale,  1882,  10  L.  E.  Ir.  78, 
and  12  L.  E.  Ir.  97). 

Deposits  may  be  made  by  minors  (1863  Act,  c.  87,  s.  30),  by  persons 
acting  as  trustees  on  behalf  of  others  (s.  37),  and  by  married  women. 
The  husband  of  a  married  woman  may  prevent  the  money  being  paid  to 
her  by  notice  in  writing  to  the  trustees  of  his  marriage,  and  requiring 
payment  to  be  made  to  himself  (s.  31).  Since  the  Married  Women's 
Property  Act,  1881,  it  is  thought  this  provision  would  not  apply  to  money 
deposited  which  is  her  own  separate  estate. 

The  funds  of  registered  Friendly  Societies,  Building  Societies,  Charitable 
or  Provident  Institutions,  and  Penny  Savings  Banks  may  be  invested  in 
any  savings  bank  (ss.  32,  33 ;  Building  Societies  Act,  1874,  s.  25). 

A  depositor  may  not  deposit  at  any  time  within  any  one  savings  bank 
year  any  sum  exceeding  £50,  nor  more  than  £200  altogether.  The  whole 
account  of  Government  Stock  at  a  depositor's  credit  may  not  exceed  £500. 
Unless  the  depositor  otherwise  directs,  all  sums  in  excess  of  £200  shall  be 
invested  in  Government  Stock  for  his  benefit  (26  &  27  Vict.  c.  87,  s.  39  ; 
partly  repealed  by  56  &  57  Vict.  c.  69,  ss.  1,  2,  3).  As  to  interest,  see 
43  &  44  Vict.  c.  36,  s.  2  :  54  &  55  Vict.  c.  21,  s.  14. 

By  50  &  51  Vict.  c.  40,  repealing  26  &  27  Vict.  c.  87,  ss.  43,  44,  45, 
and  46,  certain  regulations  are  made  by  the  Treasury  for  inter  alia — 

(1)  Payment  or  transfer  of  sums  belonging  to  minors  or  lunatics,  or 
persons  supposed  to  be  dead. 

(2)  Determination  of  evidence  to  be  accepted  in  any  such  matter. 
The  Treasury  may  also  provide  regulations  as  to — 

Deposits  of  Deceased  Depositors  by  (1)  power  of  nomination  by  a 
depositor  not  under  sixteen  years  of  age  of  any  sum  not  exceeding  £100 ; 
(2)  power,  where  the  sum  in  bank  does  not  exceed  £100,  to  dispense  with 
confirmation  or  other  proof  of  the  title  of  the  personal  representative,  and 
to  pay  such  sum  to  "the  persons  appearing  to  be  beneficially  entitled 
whether  under  such  nomination  of  such  deceased  person  as  is  allowed  by 
the  regulations,  or  by  law,  or  as  next  of  kin,  or  as  creditors,  or  otherwise, 
or  to  or  among  any  one  or  more  of  such  persons,  exclusively  of  the  others, 
or  in  case  of  any  illegitimacy  of  the  deceased  person  or  his  children,  to  or 
among  such  person  or  persons  as  may  be  directed  by  the  said  regulations, 
and  the  person  making  such  payment  shall  be  discharged  from  all  liability 
in  respect  of  the  sum  paid  in  accordance  with  the  said  regulations"  (50 
&  51  Vict.  c.  40,  s.  3  (2);  see  also  sec.  47  of  26  &  27  Vict.  c.  87 ;  Bennett, 
1898,  15  T.  L.  E.  25;  Caddick,  1899,  15  T.  L.  E.  182).  Certain  exemp- 
tions from  stamp  duty  are  conferred  by  26  &  27  Vict.  c.  87,  ss.  41  and 
42,  43,  50. 


SAVINGS  BANKS  91 

Disjjutcs.^ — All  disputes  between  the  trustees  and  a  depositor,  or  his  or 
lier  representative,  must  be  referred  to  the  Eegistrar  of  Friendly  Societies, 
and  his  decision  is  binding  and  conclusive  on  all  parties,  and  final  to  all 
intents  and  purposes  without  any  appeal  (26  &  27  Vict.  c.  87,  s.  48 ;  39  & 
40  Vict.  c.  52,  s.  2  (1)). 

So  where  an  action  was  raised  by  a  depositor  for  payment  by  the  bank 
of  £50  alleged  to  have  been  paid  by  the  bank  upon  a  forged  order  to 
another  person,  it  was  held  that  the  action,  being  founded  upon  a  contract 
of  deposit,  involved  a  question  between  the  bank  and  depositor  which  fell 
within  the  arbitration  clause  of  the  48th  section  of  the  statute  (J/c/rose,  1897, 
24  R.  48;^,  34  S.  L.  R.  :54G  :  see  Crisp,  18:V2,  8  Bing.  394).  The  Registrar  is 
not  bound  to  hear  a  dispute  where  the  depositors  have  been  acting  illegally 
and  in  wilful  contravention  of  the  statute,  as,  for  example,  by  making 
deposits  in  fictitious  names  (B.  v.  Littlcdcde,  1882,  10  L.  R.  Ir.  79,  12  L.  R. 
Ir.  97).     See  Fkiendly  Societies  {Disputes). 

Inspection  cmcl  Closing. — As  stated  above,  an  Inspection  Committee  of 
Savings  Banks  was  created  by  54  &  55  Vict.  c.  21. 

By  50  &  51  Vict.  c.  47,  s.  2,  the  Treasury  has  power,  on  a  representation 
by  a  sufficient  number  of  depositors  or  by  the  National  Debt  Commissioners, 
to  apply,  in  Scotland,  to  the  Court  of  Session  for  the  appointment  of  a 
Commissioner  (being  an  advocate  or  W.S.  of  not  less  than  five  years' 
standing)  to  hold  a  local  inquiry  into  the  affairs  of  any  savings  bank. 

The  National  Debt  Commissioners  have  power  to  close  any  bank 
reported  by  the  Inspection  Conmiittee  to  have  failed  to  observe  the 
statutory  requirements,  or  may  report  to  the  Treasury  with  a  view  to  a 
local  inquiry  by  a  Commissioner  as  mentioned  above. 

A  Trustee  Savings  Bank  is  by  50  &  51  Vict.  c.  47,  s.  3,  expressly  stated 
to  be  an  "  unregistered  association "  which  may  be  wound  up  under  the 
Companies  Act,  1862,  and  the  Acts  amending  the  same,  and  a  petition  for 
winding  up  may  be  presented  by  any  person  authorised  under  these  Acts, 
or  by  the  National  DeVjt  Commissioners,  or  by  a  Commissioner  appointed  in 
terms  of  the  1887  Act. 

By  26  Vict.  c.  14,  ss.  2,  3,  and  34  &  55  Vict.  c.  21,  s.  6,  various  regulations 
are  made  as  to  procedure  on  the  closing  of  a  savings  bank,  including 
notification  by  the  trustees  to  the  National  Debt  Commissioners,  and  the 
paying  over  to  them  of  any  sum  realised  by  the  sale  of  property.  Tliey 
must  also  give  one  month's  notice  to  depositors,  and  inform  them  as  to  tlie 
facilities  for  transferring  deposits  to  Post-Office  Savings  Banks. 

II.  Post-Office  Savings  Banks. — The  principal  Act  is  24  Vict.  c.  14, 
which  has  been  amended  hj  various  statutes,  the  latest  being  56  &  57  Vict. 
c.  69,  whicli  is  also  appli('al)le  to  Trustee  Savings  Banks. 

]>y  the  Act  1861,  the  Post  Office  was  made  available  for  the  deposit  of 
small  savings,  and  direct  security  given  by  the  State  to  every  depositor  lor 
repayment  of  liis  deposit  and  interest  thereon;  the  Postmaster-General 
being  authorised  throiigli  ln"s  officers  to  receive  deposits  under  such  regula- 
tions as  he,  witli  the  concurrence  of  the  Commissioners  of  Her  Majesty's 
Treasury,  may  prescribe. 

The  law  is  almost  entirely  statutory,  and  is,  with  the  necessary  variations, 
substantially  the  same  as  that  regulating  Trustee  Savings  Banks,  with  the 
exceptions  that — 

(1)  There  are  no  statutory  checks  on  officers,  the  State  itself  being 
security. 

(2)  The  rate  of  interest  on  deposits  is  lower,  being  £2,  10s.  per  cent. 

(3)  The    Postmaster  -  General    determines    questions    arising    out    of 


92  SAVINGS  BANKS 

payments   on   death   of   a   depositor,  and  exercises  a  wider  discretionary 
power. 

III.  Kailway  Savings  Banks  are  governed  by  special  Acts  of  Parlia- 
ment, under  which  the  Registrar  of  Friendly  Societies  exercises  functions 
varying  with  the  terms  of  the  respective  Acts. 

IV,  Military,  Naval,  and  Seamen's  Savings  Banks. — These  are 
regulated  by  statute,  but  stand  in  a  different  category  from  the  others, 
inasmuch  as  the  Kegistrar  of  Friendly  Societies  has  no  control  over 
them. 

{a)  Military  Savings  Banks. — These  are  regulated  by  22  &  23  Vict. 
c.  20,  repealing  5  &  6  Vict.  c.  71,  and  8  &  9  Vict.  c.  27,  but  deposits  made 
before  repeal  in  banks  established  under  these  statutes  are  not  to  be 
affected. 

The  purpose  of  22  &  23  Vict.  c.  20  is  to  establish  IMilitary  or  Kegi- 
mental  Savings  Banks  for  non-commissioned  officers  and  soldiers  in  Her 
Majesty's  service,  either  in  the  United  Kingdom  or  upon  foreign  service, 
with  the  exception  of  India. 

The  regulations  for  such  are  made  by  the  Secretary  of  State  for  War, 
with  the  concurrence  of  the  Commander-in-Chief  and  the  Commissioners 
of  Her  Majesty's  Treasury  (22  &  23  Vict.  c.  20,  s.  3,  and  26  &  27 
Vict.  c.  12).' 

Eeceipts  by  infants  are  a  sufficient  discharge,  and  payments  by  married 
women  are  valid  despite  their  disability  in  law  (s.  5). 

Officers  of  such  savings  banks  are  not  liable  except  for  their  own 
acts  (s.  12). 

Accounts  have  to  be  laid  before  Parliament  every  year  (s.  13). 
(1))  Naval  Savings  Banks. — These  are  established  and  regulated  by  the 
Admiralty  under  29  &  30  Vict.  c.  43,  and  are  for  the  purpose  of  receiving 
deposits  of  money  from  petty  officers  and  seamen,  and  from  non-commissioned 
officers  and  privates  in  the  marines,  of  the  Eoyal  Navy.  The  regulations 
are  made  by  an  Order  in  Council,  and  prescribe  the  rate  of  interest  (not 
exceeding  £3,  15s.  per  cent,  per  annum)  and  the  terms  and  conditions  of 
deposits  being  received  and  paid. 

A  Naval  Savings  Bank  is  not  one  within  the  meaning  of  sec.  38  of  26  & 
27  Vict.  c.  87. 

Deposits  may  be  transferred  to  other  savings  banks  (s.  9).  Provi- 
sion is  made,  as  with  Military  Savings  Banks,  for  investment  of  deposits 
and  sale  of  stocks  (s.  9  and  10),  and  annual  accounts  have  to  be  submitted 
to  Parliament  (s.  11). 

(c)  Seamen's  Savings  Banks. — These  are  regulated  by  sees.  148  to 
154  of_  the  Merchant  Shipping  Act,  1894  (57  &  58  Vict.  c.  60),  under 
which  it  is  provided  that  the  Board  of  Trade  may  maintain  a  central  bank 
in  London,  and  establish  branch  seamen's  savings  banks  to  receive  deposits 
from  seamen  (whether  of  the  Ptoyal  Navy,  merchant,  or  other  sea  service), 
or  of  the  wives,  widows,  and  children  of  such  seamen.  The  Board  of  Trade 
may  constitute  any  mercantile  marine  office  a  branch  savings  bank,  and 
may  make  regulations  as  to  all  matters  incidental  to  carrying  out  the 
statutory  provisions. 

The  National  Debt  Commissioners  may  receive,  if  asked,  from  the  Board 
of  Trade,  and  repay  to  their  account,  the  sums  paid  as  deposits,  and  shall 
invest  such  money  and  pay  interest  as  in  the  case  of  Trustee  Savings 
Banks.     The  accounts  have  to  be  laid  annually  before  Parliament. 

The  Board  of  Trade  and  superintendents  and  officers  employed  in  such 
banks  are  exempt  from  legal  proceedings,  except  in  cases  of  fraud  or  wilful 


SCHOOL  BOAED  ELECTIONS,  PEOCEDUEE  AT  93 

misconduct.  Any  person  guilty  of  forgery  of  documents,  etc.,  for  the 
purpose  of  obtaining  money  in  Seamen's  Savings  Banks,  shall  be  liable  to 
penal  servitude  for  five  years,  or  to  imprisonment  for  t^YO  years  with  or 
without  hard  labour,  or  on  summary  conviction  to  six  months'  imprisonment 
with  or  without  hard  labour. 

See  Friendly  Societies;  EegisteaPv  of  Friendly  Societies. 


Scattald.— See  Udal  Law. 

School.— See  Education. 

School  Board.— See  Education  ;  School  Board  Elections. 

School  Board  Elections,  Procedure  at,  under  35  & 

36  Vict.  c.  62,  and  41  &  42  Vict.  c.  78.— The  election  of  members  to  serve  as 
a  School  Board  is  by  ballot,  and  therefore  the  general  principles  of  the  Ballot 
Act  apply  to  the  management  of  the  election,  subject  to  such  modifications 
as  are  imposed  by  the  Education  Acts  or  General  Orders  of  the  Education 
Department.  The  sections  of  the  Acts  bearing  on  elections  are  sees.  12 
(last  clause  only),  13,  14,  15,  16,  Sched.  B  Act  of  1872,  and  sec.  21  Act  of 
1878.  Elections  are  further  regulated  by  a  General  Order  issued  from  time 
to  time  by  the  Scotch  Education  Department,  the  last  Order  being  dated  2nd 

Oct.  1893. 

The  nv.mhrr  of  members  in  each  School  Board  is  determined  by  the 
Department,  according  to  the  requirements  of  the  school  district,  and  there 
must  be  not  less  than  five  nor  more  than  fifteen  members  (Sched.  B,  Act 
1872  ;  Eule  2,  Order  1893).  Any  person  may  be  a  member,  provided  such 
person  is  not  a  teacher  in  a  public  or  State-aided  school,  or  does  not  hold 
an  office  of  profit  under  tlie  Board  (s.  12,  Act  1872  ;  s.  21,  Act  1878  ;  Eule  8, 
Order  1893).  Women  are  eligible  ;  and  as  there  is  no  qualification  as  to  age, 
sex,  residence  or  ownership,  the  same  person  may,  if  elected,  sit  on  two  or 
more  Boards.  The  conditions,  however,  "  of  full  age  "  and  "  not  subject  to 
any  legal  incapacity"  are  interpolated  by  Eule  8,  Order  1893.  An  in- 
s])ector  of  poor  is  not  a  suitable  person  (1  E.  261).  Married  women  living 
with  their  husbands  have  been  elected  and  have  acted.  Members  remain 
in  office  until  a  new  election  takes  place  (Ihile  1,  Order  1893);  and  casual 
vacancies  are  filled  up  by  the  School  Board  itself  (s.  13,  Act  1872),  and  so 
arc  vacancies  caused  by  resignation  (s.  15,  Act  1878);  absence  for  six  monllis 
without  cause  vacates  the  seat  (s.  16,  Act  1878).  If  the  number  nomi- 
nated is  less  than  the  number  to  be  elected,  or  if  no  election  at  all  has  taken 
place,  the  Department  may  (1)  order  a  new  election,  (2)  allow  the  existing 
Board  to  remain  in  office,  or  (3)  themselves  nominate  a  new  Board  (s.  13, 
Act  1872).  Vacancies  caused  by  an  invalid  election,  and  where  no  one 
has  been  declared  elected,  are  filled  up  by  the  J5oard  itself,  provided  there 
is  a  quorum,  i.e.  three  tufinbcrs  (s.  15,  Act  1872). 

A  member  of  a  School  Board  may  resign  on  giving  to  the^  Board  one 
month's  previous  notice  in  writing  of  his  intention  so  to  do.  The  vacancy 
so  caused  is  filled  u])  by  a  new  nomination  made  by  the  School  Board :  and 
if  the  Board  fail  for  eight  weeks  to  fill  up  the  vacancy,  the  Scotch  Educa- 
tion Department  may  ppjceed  to  do  so  (s.  15,  Act  1878).     An  opinion  was 


94 


SCHOOL  BOAED  ELECTIONS,  PEOCEDUEE  AT 


expressed  in  the  Sclwol  Board  of  Cahrach  v.  Macdonald,  1896,  23  E.  541,  that 
the  power  of  a  School  Board  to  nominate  a  person  to  fill  up  a  vacancy 
caused  by  the  resignation  of  a  member  did  not  i2)so  facto  cease  on  the  lapse 
of  eight  weeks  from  the  date  of  the  resignation.  A  person  nominated  by  the 
Board  is  entitled  to  decline  office,  and  if  he  does  so,  he  never  becomes  a 
member  of  the  Board,  and  does  not  require  to  resign  {Cahrach  case,  supra). 

The  Electorate  consists  of  all  persons,  male  and  female,  and  under  no  legal 
incapacity,  whose  names  are  entered  on  the  latest  valuation  roll  applicable 
to  the  parish  or  burgh  for  which  the  Board  is  to  be  elected,  and  who  are 
owners  or  occupiers  of  lands  of  the  yearly  value  of  £4  and  upwards 
situated  in  the  parish  or  burgh  (Sched.  B  (2),  Act  1878 ;  E.  c,  Order  1893). 
Married  women  under  the  curatory  of  their  husbands  are  generally  allowed 
to  vote ;  but  see  Graham,  Sellars  Manual  Education  Acts,  9th  ed.,  pp.  86, 
181-83.  Electors  are  not  disqualified  by  non-payment  of  rates,  and  "  service" 
voters  appear  entitled  to  the  School  Board  franchise  in  counties,  but  not 
in  burghs  {%b.  p.  86). 

Beturning  Officer. — The  election  takes  place  triennially,  and  the  return- 
ing officer  is  the  chairman  of  the  School  Board,  or  failing  him,  some  person 
appointed  by  the  Board.  No  candidate  for  election  may  act  as  returning 
officer  (E.  4,  Order  1893).  He  appoints  presiding  officers  and  clerks  if 
necessary  (Eule  16),  and  these  do  not  require  any  professional  qualification 
(Eule  18  {a)). 

The  Day  of  Election  is  fixed  by  the  School  Board,  and  is  a  convenient  day 
not  more  than  ten  clear  days  before  or  twenty  clear  days  after  the  same 
day  as  that  which  was  fixed  for  the  first  election  of  the  School  Board 
(Eule  3,  Order  1893). 

The  following  provisions  require  to  be  observed  after  the  day  of  election 
has  been  fixed  : — ■ 


Eighteen  clear  days  before  day  fixed  for 
election 

Notice  of  Election  to  be  given  by  returning 
officer  in  form  of  Sched.  A  of  Order 
(rr.  6  and  7). 

Fourteen  clear  days  before  day  of  election 

Nominations  close,  and  must  be  received 
not  later  than  8  p.m.  of  the  last  day 
(rr.  8  and  9).  If  the  last  day  is  a 
Sunday,  then  the  nominations  must 
be  made  on  Saturday  before  12 
o'clock  (r.  27). 

Eleven  clear  days  before  day  of  election  . 

Notice  of  names,  abodes,  designations  of 
candidates  must  be  given  by  return- 
ing officer  (r.  10). 

Eight  clear  days  before  day  of  election    . 

Time  for  withdrawing  nominations  closes 
at  8  p.m.  of  last  day.  If  a  Sunday, 
these  must  be  made  on  the  Saturday 
previous,  before  12  o'clock  (r.  27). 

Immediately  after  time  for  withdrawing 

nominations  closes. 
Notice  of  persons  nominated,  if  there  is  to 

be  a  contest,  and  the  date  of  the  poll. 

SCHOOL  BOAED  ELECTIONS,  PROCEDUEE  AT 


Three  clear  days  before  day  of  election    . 

Notice  of  numlDer  and  situation  of  polling- 
places  to  be  given  by  returning 
oificer  (r.  14). 

Day  of  election 

Counting  of  votes  as  soon    as    possible 
thereafter 

Notice  of  result,  notice  to  successful 
candidates.  Returns  to  clerk  of 
School  Board,  and  to  Scotch  Educa- 
tion Department  (rr.  19,  20,  23). 

Nor  later  than  fourteen  clear  days  after 
day  of  election 

First  meeting  of  School  Board  (fixed  by 
School  Board  previously)  (r.  23). 

Nomination  Papers  are  subscribed  by  five  electors,  and  state  the  Christian 
name  and  surname,  abode,  and  designation  of  each  subscriber,  as  well  as  of 
the  candidate.  Intimation  of  the  nomination  is  sent  to  the  candidate  by 
the  returning  officer.  He  decides  as  to  the  validity  of  a  nomination  paper, 
and  his  decision  is  final  (r.  9).  Mere  acceptance  of  a  nomination  paper  by 
the  returning  officer  does  not  constitute  a  decision  as  to  its  validity  {Hodge, 
1898  (0.  H.),  35  S.  L.  E.  634).  In  that  case  the  returning  officer  rejected  a 
nomination  paper  two  days  after  he  had  accepted  it.  The  notice  of  with- 
drawal is  signed  by  the  candidate,  or  by  the  five  electors  who  nominated 
him,  and  sent  to  the  returning  officer  (r.  11  ;  see  cases  on  nomination, 
Graham's  edition  of  Scllars  Manual,  pp.  189-193). 

The  Poll. — Notice  of  poll  must  forthwith  be  given  by  the  returning 
officer  if  there  is  a  contest  (r.  13) ;  and  publication  of  tlie  situation  of  the 
polling-places  not  less  than  three  clear  days  before  the  day  of  election.  No 
public-house  shall  be  used  as  a  polling-place,  or  for  the  purpose  of  an 
election  (r.  14).  Eacli  voter  is  entitled  to  give  as  many  votes  as  there  are 
members  to  be  elected,  and  he  may  distribute  his  votes  as  he  pleases 
(Sched.  B  (6),  Act  1872).  The  papers  may  be  marked  in  figures  or  in 
crosses ;  but  where  more  than  one  vote  may  be  given,  a  single  cross  given 
to  any  one  candidate  cannot  be  taken  to  mean  a  cumulative  vote.  It  counts 
one  only  (4  S.  L.  T.  p.  237).  As  to  good  or  bad  votes,  see  Graham's  edition 
of  Scllars  Manual,  cases  39-48,  pp.  200  et  sccj[. 

The  poll  shall  be  open 
{a)  in  a  burgh,  during  the  hours  prescribed  for  municipal  elections. 
(h)  in  a  2'>arish,  during  not  less  than  six  nor  more  than  twelve  hours 
from   such    hour,   not  later   than   twelve   o'clock   noon,  to  such 
hour,  not   later   than    eight   p.m.,  as   the  School  Board  may  fix 

(r.  17). 
The  distinction  between  a  parish  and  a  burgh  School  lioard  election  has 
given  rise  to  some  dilficulty.  By  Eule  18  (a)  burgh  School  Board  elections 
are  to  be  carried  out  in  like  manner  as  a  poll  at  a  contested  municipal 
election  under  the  Ballot  Act,  1872,  and  (b)  parish  School  Board  elections 
in  the  manner  proscribed  in  Sched.  B  annexed  to  Order  of  1893.  The 
object  of  tiie  distinction  seems  to  be  to  make  the  election  in  a  parish  as 
simple  as  possible,  tlius  rendering  several  of  the  formalities  of  the  Ballot 
Act  unnecessary.  Ballot  papers  apparently  ought  not  to  be  numl^ered  in  a 
parish  election  (r.  8,  Sched.  B,  Order  ]  893 ;  see  cases  in  Graham's  edition 
of  Scllars  Manual,  pp.  195,  190).     This  leads,  if  sound,  to  a  curious  result. 


96  •  .  SCHOOLMASTER 

If  the  pap(?r3  are  unnumbered,  it  becomes  impossible  on  a  scrutiny  to  know 
how  a  voter  has  voted,  which  might  be  of  considerable  importance  in  an 
election  petition.  They  rec^uired  to  be  marked  with  a  private  official 
mark  (Sched.  B,  r.  1),  although  the  want  of  it  is  not  expressly  declared' 
to  render  the  paper  invalid  (Sched.  B,  r.  8).  This  appears  to  be  a  question 
for  the  returning  officer  to  determine,  and,  so  far  as  can  be  discovered,  there 
is  no  authority  upon  the  point.  The  practice,  however,  is  invariably  to 
stamp  the  papers.  The  only  persons  entitled  to  be  present  in  the  polling 
station,  both  in  burgh  and  parish  elections,  are  the  returning  officer, 
presiding  officers,  clerks,  and  candidates,  or  the  persons  (one  each)  authorised 
in  writing  by  them  (r.  18  (a),  Sched.  B,  r.  2,  Order  1893). 

No  declaration  of  inability  to  read  is  taken  from  a  blind  or  illiterate 
voter  in  a  parish  election.  The  vote  is  marked  by  the  presiding  officer 
and  put  into  the  box,  and  the  circumstances  recorded  and  entered  on  the 
"  list  of  votes  marked "  by  him  (Sched.  B,  r.  6).  No  provision  is  made 
for  declarations  of  identity  and  tendered  votes ;  but  as  personation  is 
a  crime  and  offence  at  all  elections,  they  would  appear  to  be  necessary, 
and  ought  to  be  supplied.  In  the  case  of  an  equality  of  votes  the 
returning  officer  determines  which  candidate  is  to  be  elected  (s.  14,  Act 
1872). 

The  result  of  the  election  is  published  by  the  returning  officer  (r.  19), 
notice  given  to  each  successful  candidate  (r.  23),  and  returns  sent  to  the 
clerk  of  the  School  Board,  and  to  the  Scotch  Education  Department  (r.  20). 
The  first  meeting  of  the  School  Board  must  be  not  later  than  fourteen  clear 
days  after  the  election  (r.  23).  This  date,  and  the  date  of  the  election,  are 
fixed  by  the  Board  before  they  go  out  of  office. 

Notices  are  published,  {a)  in  a  hurgh,  in  one  or  more  newspapers 
circulating  in  the  locality,  or  in  such  otlier  manner  as  public  notices  are 
usually  published;  (h)  in  a ixirish,  by  being  fixed  to  the  doors  of  the  parish 
churches  and  other  places  of  worship,  and  public  and  State-aided  schools 
within  the  parish  (r.  25). 

Docu7nents,  at  the  close  of  the  poll,  are  sealed  up  and  delivered  to  the 
clerk  of  the  School  Board,  to  be  kept  among  the  records  of  the  Board, 
subject  to  the  direction  of  the  Scotch  Education  Department  (Sched.  B, 
r.  9).  .  ^ 

Petitions  or  Disputes. — Any  question  or  dispute  regarding  the  election  of 
a  candidate  is  to  be  summarily  determined  by  the  Sheriff,  on  the  petition 
of  any  person  having  a  legal  title  or  interest  to  rais6  such  question ;  and 
the  Sheriff's  decision  is  final.  As  to  the  meaning  of  "  summarily,"  see  Bone, 
1886,  13  R.  768.  If  the  Sheriff-Substitute  decides  the  qiiestion,  there  is  no 
appeal  to  the  Sheriff  {ih.).  Pending  the  decision,  the  Board  is  deemed  to 
consist  of  the  members  declared  by  returning  officer  to  have  been  elected, 
and  there  is  no  penalty  if  a  member  who  has  acted  is  subsequently  declared 
not  to  have  been  duly  elected  (s.  14,  Act  1872). 

[See  Education  ;  Graham's  edition  of  Sellar's  Education  Manual.] 


Schoolmaster.— See  Teachek  and  Education. 


Scienter — A  term  adopted  from  English  pleading  in  actions  of 
reparation  for  injuries  caused  by  vicious  animals.  To  keep  such  an  animal 
after  knowledge  of  its  disposition  has  been  obtained  implies  liability.  See 
Animals,  Liability  for  .Damage  caused  by. 


0 

0 

Ot^ 

0 

0 

0^ 

0 

0 

Oi 

0 

0 

1 

0 

1 

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0 

1 

8 

SEA ;  SEASHOEE  •  .  97 

Scots  Money. — In  the  older  Acts  of  Parliament,  sums  of  money 
are  expressed  in  Money  Scots.  The  latter  bears,  approximately,  the  pro- 
portion of  yV  of  sterling  money  of  the  same  denomination. 

A  doyt  or  penny  is  . 

A  Lodle  or  twopence  is        . 

A  plack,  or  groat,  or  fourpence  is   . 

A  shilling  or  three  placks  is  .  .  . 

A  merk,  or  13s.  4d,  (5  of  a  pound)  is 

A  pound  is . 

[See  Tait's  Justice  of  Peace,  h.t.;  Barclay's  Justice's  Digest,  voce  "Money 
Scots."] 


Sea  ;  Seashore. — By  the  common  consent  of  nations  the  sea  is  now 
recognised  as  common  to  all  the  world  and  incapable  of  appropriation  by 
any  single  nation  or  individual.  The  history  of  the  origin  and  growth  of 
this  principle  will  be  found  in  the  leading  works  on  international  law  (see 
■\Vheaton,  Hall,  Kent's  Com.,  etc.).  It  is  sufficient  to  state  here  the  result. 
Upon  this  open  sea,  commonly  called  the  high  seas,  the  ships  of  all  nations 
have  equal  right  to  sail ;  and  when  States  are  at  war,  hostilities  on  the  high 
seas  between  belligerents  do  not  constitute  an  interference  with  the  rights 
of  neutrals.  The  high  seas,  as  such,  are  subject  to  the  jurisdiction  of  no 
nation ;  but,  to  prevent  the  consequences  of  anarchy,  tlie  ships  which  sail 
on  them  continue  subject  to  the  law  and  to  the  tribunals  of  the  country  to 
which  they  belong,  i.e.  to  the  law  of  the  flag ;  and  hence  the  importance  of 
registration  and  the  stringency  of  the  rules  regarding  it.  This  jurisdiction 
of  the  tribunals  of  the  country  in  which  the  ship  is  registered  extends  over 
civil  and  criminal  matters,  and  over  both  the  State's  own  subjects  and 
foreigners  on  board — at  least  to  the  extent  to  which  foreigners  would  be 
subject  to  the  jurisdiction  of  the  State  if  they  were  on  its  soil,  further,  each 
State  has  the  rig] it  to  protect  vessels  registered  as  belonging  to  it  from  all 
interference  on  the  higli  seas  on  the  part  of  any  other  Power,  except  in 
three  cases,  viz. :  (1)  if  the  ship  or  those  on  board  of  her  commit  an  act  of 
hostility  against  a  friendly  State  ;  (2)  if,  while  tliere  is  a  war  between  other 
nati(jns,  the  shij)  commits  a  breach  of  neutrality,  as  by  carrying  contraband 
of  war ;  or  {'■'>)  if,  Ijcfore  the  ship  had  quitted  the  territorial  waters  of  the 
foreign  State  on  her  present  voyage,  the  law  of  that  State  was  broken  by 
the  sliip  or  someone  on  board  her  (Ilall,  International  Zaiv,  2nd  ed.,  \\  229). 

A  ship  while  in  the  territftrial  waters  of  a  foreign  State  may  do  with 
impunity  an  act  sanctioned  by  the  laws  of  that  State,  though  obnoxious  to 
the  laws  of  her  own  State  {Dohrce,  2  Bing.  N.  C.  781).  But  if  the  act  be 
continued  after  the  ship  has  reached  the  high  seas,  the  law  of  her  own  State 
nt  once  reasserts  itself.  Thus  the  master  of  an  English  ship,  having  under 
a  contract  with  the  Chilian  Government  brought  certain  banished  Chilian 
subjects  over  to  England  against  their  will,  was  convicted  of  false  imprison- 
ment, the  offence  being  held  to  have  commenced  as  soon  as  the  sliip  quitted 
the  Chilian  waters  (Lcsln/,  Bell,  C.  C.  220). 

By  tiie  declaration  of  Paris,  185Q,  it  is  agreed  that  in  tnne  of  war  one 
belligerent  Puwer  may  not  seize  goods  belonging  to  the  enemy  (other  than 
contraband  of  war)  on  board  a  neutral  f^lii]).  And  it  is  usual  to  restore  to 
neutrals  goods  belonging  to  them  carried  on  board  a  ship  belonging  to  one 
of  the  belligerents  which  has  been  ciiptured  by  the  other  (Hall,  G:'.8). 

When  a  collision  occurs  on  the  high  seas  between  two  ships  of  differenji 

8.  K— VOL.  XI.  "^ 


98  SEA;  SEASHOEE 

nations,  it  is  competent  for  the  owners  of  either  (or  the  passengers  or  cargo- 
owners)  to  take  action  against  the  other  ship  (in  rem)  wherever  she  may  be 
found ;  and  such  action  does  not  prevent  the  pursuers,  if  their  claims  are 
not  paid  in  full  by  the  amount  recovered  from  the  ship,  from  suing  a  further 
action  against  the  owners  of  the  ship  which  they  allege  to  be  in  fault  in  the 
Courts  of  the  country  to  which  she  belongs  {The  Crathie,  [1897]  P.  178).  It 
was  laid  down  in  one  of  the  articles  of  the  Antwerp  Congress  of  1885,  that 
in  the  case  of  a  claim  for  damages  for  injury  received  on  the  high  seas  (as 
by  collision)  there  must  be  a  concurrence  between  the  law  of  both  parties, 
the  person  injured  being  entitled  only  to  such  damages  as  he  would  have 
been  entitled  to  under  the  laws  of  his  own  country,  and  the  person  in  fault 
beino-  bound  to  pay  no  more  than  he  would  by  the  laws  of  his  own  country 
have  been  bound  to  pay.  This  rule  was  approved  in  the  case  of  Kcndrick 
and  Others  (25  E.  82,  at  p.  91).     See  Ship. 

The  universally  recognised  exception  to  the  exterritoriality  of  the  sea  is 
the  principle  that  the  territory  of  every  maritime  State  extends  so  far  sea- 
wards as  is  necessary  for  its  defence  and  protection.  This  extension  is 
held  to  include  (1)  the  ports,  harbours,  bays,  straits,  mouths  of  rivers  and 
adjacent  parts  of  the  sea  enclosed  by  headlands  belonging  to  the  same  State, 
all  which  is  concisely  expressed  as  all  the  water  inter  fauces  tcrrm ;  and  (2) 
the  distance  of  a  marine  league  (three  marine  miles)  from  low-water  mark  on 
the  coast  into  the  open  sea,  or  so  far  as  a  cannon  shot  will  reach  from  the 
shore  (Wheaton,  s.  177;  Kent,  Com.  vol  i.  p.  29).  A  marine  league 
was  fixed  on  as  the  measure  of  this  distance  at  a  time  when  that  was 
regarded  as  synonymous  with  a  cannon  shot ;  that  is  to  say,  as  far  as  the 
State  could  make  its  rule  effective,  and  as  far  as  was  necessary  for  the 
security  of  the  inhabitants  of  a  neutral  State  in  the  event  of  a  naval  engage- 
ment being  fought  oft"  its  shores.  Now  that  the  range  of  modern  artillery 
has  so  greatly  increased,  it  is  questioned  whether  a  corresponding  increase 
in  the  territorial  jurisdiction  should  not  be  made  ;  but  the  question  will 
doubtless  remain  unsettled  till  the  next  European  war. 

The  expression  "  the  narrow  seas  "  is  frequently  used  to  denote  the  sea 
within  the  territorial  limits,  including  all  the  estuaries,  bays,  inlets,  etc., 
inter  fauces  terrm;  but  as  it  is  used  with  equal  frequency  to  mean  all  the 
seas  surrounding  Britain  (which  in  former  times  Britain  claimed  as  her 
territory)  the  use  of  the  expression  is  somewhat  misleadmg  (per  Ld. 
Kyllachy  in  the  Ld.  Advocate,  19  E.  174).  Within  the  three-mile  limit 
and  the  seas  and  channels  inter  fauces  terra;,  the  Crown's  right  is  one  of 
property,  subject  to  the  public  rights  of  fishing  and  navigation.  "  There  is 
no  distinction  in  legal  character  between  the  Crown's  right  in  the  foreshore, 
in  tidal  and  navigable  rivers,  and  in  the  bed  of  the  sea  within  three  miles  ■ 
of  the  shore "  (x^er.  Ld.  Kyllachy,  ut  supra.)  Accordingly,  the  Crown  has 
a  right  to  prevent  dredgings  being  deposited  in  the  sea  and  lochs  inter 
fauces  terra:,  or  any  use  being  made  of  the  water  other  than  the  recognised 
public  uses,  and  that  without  alleging  injury  {Ld.  Advocate,  19  E.  174).  One 
undisputed  effect  of  this  extension  of  the  territories  of  a  State  seaward 
is  that  no  hostilities  may  take  place  in  time  of  war  within  the  territorial 
waters  of  a  neutral  State,  and  it  follows  that  any  prizes  taken  by  belligerents 
from  belligerents  within  the  territorial  waters  of  a  neutral  State  rnust  be 
restored  {The  Twee  Gehroeders,  3  C.  Eob.  162).  The  jurisdiction  of  the  State 
over  its  own  subjects  within  these  waters  has  likewise  never  been  disputed; 
but  a  question  arose  as  to  the  jurisdiction  over  foreigners  in  foreign  ships 
within  these  waters.  In  the  Court  for  Crown  Cases  Eeserved  in  England, 
it  was  decided  by  a  bare  majority  that  there  was  no  jurisdiction  to  try  a 


SEA;  SEASHOIIE  .  99 

foreigner  for  mauslaugliter  committed  on  the  sea  wltliin  three  miles  of 
the  English  coast  {The  Franconia,  L.  E.  2  Exchequer  Div.  63).  This  led 
to  the  passing  of  the  Territorial  Waters  Jurisdiction  Act,  1878  (41  &  42 
Vict.  c.  73).  The  speech  of  Ld.  Chan.  Cairns  in  introducing  the  Bill  in 
the  House  of  Lords  on  14th  Feb.  1878,  reported  in  Hansard,  3rd  Series,  vol. 
237,  col.  IGOl,  is  most  instructive  as  to  the  then  existing  state  of  the  law. 
The  leading  clause  of  this  Act  (s.  2)  provides:  "An  oilence  committed  by  a 
person,  whether  he  is  or  is  not  a  subject  of  Her  Majesty,  on  the  open  sea 
within  the  territorial  waters  of  Her  Majesty's  dominions,  is  an  offence 
withm  the  jurisdiction  of  the  Admiral,  although  it  may  have  been  committed 
on  board,  or  by  means  of  a  foreign  ship,  and  the  person  who  committed 
such  offence  may  be  arrested,  tried,  and  punished  accordingly."  The  next 
section  provides  that  no  proceedings  shall  be  taken  against  a  foreigner 
without  written  consent  certifying  that  it  is  expedient,  by  one  of  the 
Principal  Secretaries  of  State  if  in  the  United  Kingdom,  or  by  the  Governor 
if  in  any  of  Her  ]\Iajesty's  dominions  outside  the  United  Kingdom.  The 
Act  contains  provisions  regulating  the  procedure,  etc.  The  "jurisdiction  of 
the  Admiral"  was  formerly  exercised  by  the  Court  of  Admiralty  in  Scotland. 
This  Court  was  abolished  and  its  civil  jurisdiction  transferred  to  the  Court 
of  Session  and  Sheriff'  Courts,  and  its  criminal  jurisdiction  transferred  to 
the  High  Court  of  Justiciary  and  Sheriff  Courts,  by  11  Geo.  iv.  and  1  Will.  iv. 
c.  G9,  ss.  21  ct  seq.  Exclusive  jurisdiction  to  try  and  condemn  prizes  taken 
in  war  was  vested  in  the  High  Court  of  Admiralty  in  England  (now  the 
Trobate,  Divorce,  and  Admiralty  Division  of  the  High  Court  of  Justice)  by 
(j  Geo.  IV.  c.  120,  s.  57.     See  International  Law. 

Coming  now  to  municipal  law,  the  rights  which  all  subjects  have  in  the 
territorial  waters  of  Scotland  are  two, — navigation,  which  is  shared  by  all 
the  world,  and  fishing.  In  England  it  has  been  decided  that  anchoring  is 
incident  to  navigation,  and  that  the  proprietor  (lord  of  the  manor)  cannot 
charge  an  anchorage  due  unless  he  gives  a  quid  pro  quo.  But  he  may  claim 
for  damage  done  by  the  anchor,  as,  e.g.,  to  an  oyster  bed  {Gann,  11  H.  L.  C. 
192).  The  point  does  not  appear  to  have  been  raised  in  Scotland.  The 
Government  of  the  country  is  of  course  entitled,  if  not  bound,  to  issue  rules 
for  tiie  regulation  of  navigation  within  its  waters.  By  the  Merchant 
Shipping  Act,  1894  (57  &  58  Vict.  c.  60,  s.  418),  "  Her  Majesty  may,  on 
the  joint  recommendation  of  the  Admiralty  and  the  Boai-d  of  Trade,  by 
Order  in  Council,  make  regulations  for  the  prevention  of  collisions  at  sea, 
and  may  thereby  regulate  the  lights  to  be  carried  and  exhibited,  the  fog- 
signals  to  be  carried  and  used,  and  tlie  steering  and  sailing  rules  to  be 
o])servcd  by  ships,  and  those  regulations  sliall  have  effect  as  if  enacted  in 
this  Act."  The  following  subsection  enacts  that  these  regulations  shall 
be  observed  by  all  foreign  ships  witliin  British  jtuisdiction.  Sec  Siiii'. 
The  subject's  right  of  fishing  is  limited  to  white  fishing ;  the  right  of  fishing 
for  salmon  and  the  right  to  oyster  beds  and  mussel  scalps  being  vested  in 
the  Crown  and  its  grantees ;  oysters  and  mussels  are  considered  as  2^<^'>'(cs 
•so/t,  and  arc  therefore  the  property  of  the  owner  of  the  solinn  (per  Ld.  Neavcs, 
Ds.  of  Sutherland,  6  M.  at  p.  213;  Lindsay,  5  M.  864;  D.  of  Portland,  US. 
14 ;  Grant,  Mor.  12801).  ]  [erring  fisheries  are  the  suliject  of  special  legisla- 
tion. The  right  to  salmon  fishings  can  only  Ijc  obtained  by  an  express  grant 
from  the  Crown,  or  by  prescriptive  possession  on  a  barony  title  cum 
piscationibus.     See  FisiiiNris. 

Tlic  minerals  underlying  the  sea  inter  fauces  terras  and  within  the  three- 
mile  limit  belong  to  the  Crown  in  absolute  property  (iter  Ld.  Wcllwood  in 
Cunivfjhamc,  22  11.  596  ;  see  also  the  awards  of  Sir  John  I'attesou  and  Sir 


100  SEA;  SEASHOr.E 

John  Coleridge  in  the  reference  between  Her  Majesty  and  The  Buhe  of 
Cornicall,  mentioned  in  The  Franconia  {Reg.  v.  Kcyn),  L.  E.  2  Ex.  Div.  63, 
at  pp.  155  and  200 ;  21  &  22  Vict.  c.  109,  s.  2).  The  Crown  may  therefore 
convey  these  minerals  to  a  subject  either  on  lease  or  in  property  by  a  grant, 
which  may  take  the  form  either  of  an  express  grant  or  of  a  Crown  title, 
especially  a  barony  title,  not  restricted  by  a  fixed  boundary  but  interpreted 
by  prescriptive  possession  (Wemyss'  Trs.,  24  E.  216;  Zd.  Advocate 
and  the  Chjde  Trs.,  G  E.  (H.  L.)  72).  Possession  by  open  working  of  the 
submarine  minerals  ex  adverso  of  one  barony  will  not  avail  to  explain  the 
extent  of  an  adjoining  barony  belonging  to  the  same  proprietor,  although 
both  baronies  formerly  were  included  in  one  united  barony  ( Wcmyss  Trs., 
cit.^).  Farther,  the  right  to  submarine  minerals  is  excluded  by  a  grant  of 
lands  adjoining  the  seashore  with  the  privilege  of  working  the  minerals 
infra  fiuxum  maris,  that  phrase  being  interpreted  to  mean  the  minerals 
beneath  the  foreshore,  and  therefore  to  have  the  restrictive  effect  of  a 
bounding  title  (  Wemyss  Trs.,  cit.^). 

One  who  works  submarine  minerals  under  a  lease  from  the  Crown  is 
barred  by  his  acceptance  of  the  lease  from  objecting  to  the  entry  in  the 
valuation  roll  of  the  rent  paid  by  him  under  the  lease ;  and  such  entry  is 
properly  made  in  the  valuation  roll  of  the  adjoining  parish  {Cuninghamc, 
22  E.  596). 

The  seashore,  or,  in  more  technical  language,  the  foreshore,  is  the  strip 
of  land  lying  between  high-water  mark  and  low-water  mark  at.the  ordinary 
spring  tides.  This  has  in  practice  been  adopted  in  Scotland  as  the  extent 
of  the  foreshore,  after  some  attempt  to  include  the  land  covered  by  the 
equinoctial  tides ;  but  there  is  no  authoritative  Scotch  decision  {Bowie,  14 
E.  649,  per  Ld.  Trayner,  Ordinary,  at  p.  661 ;  Dcdrymplc,  13  E.  (J.  C.)  34; 
interlocutor  in  Agne^o,  11  M.  309,  at  p.  311;  Nicol,  22  D.  335,  per  Ld. 
J.-Cl.  Inglis,  at  p.  342  ;  Officers  of  State,  8  D.  711,  at  pp.  719  and  721 ;  affd.  6 
Bell's  App.  487,  at  pp.  495-500).  In  England,  on  the  other  hand,  the 
landward  limit  of  the  foreshore  is  settled  as  "  the  average  of  the  medium 
tides  in  each  quarter  of  a  lunar  revolution  during  the  year"  {Chambers,  4 
De  G.,  ]\I.  &  CI.  206).  See  Eankine  on  Landoicncrship,  p.  229 ;  Stair,  ii.  1. 
5 ;  Ersk.  ii.  6.  17. 

The  public  have  certain  inalienable  rights  to  the  foreshore,  and  of  these 
the  Crown  is  trustee  and  therefore  the  proper  vindicator  {Ar/neiv,  11  M. 
309;  Cavieron,  10  D.  446;  Officers  of  State,  8  I).  711  ;  affd.  6' Bell's  App. 
487  ;  Paterson,  8  D.  752).  But  the  Crown's  right  is  not  now  regarded  as 
exclusive  of  private  pursuers  {Alton,  2  E.  470 ;  affd.  3  E.  (H.  L.)  4).  The 
Crown  department  formerly  charged  with  the  protection  of  these  rights 
was  the  Commission  of  Woods  and  Forests,  but  is  now  the  Board  of  Trade 
(29  &  30  Vict.  c.  62,  s.  7). 

These  public  rights  include  all  uses  of  the  shore  incident  to  navigation, 
such  as  anchoring  or  drawing  boats  up  on  shore  (Stair,  ii.  1.  5  ;  Ersk.  ii.  1.  6, 
and  ii.  6.  17 ;  Bell,  Prin.  s.  645),  but  not  the  right  to  take  away  sand  for 
l)allast  {Carswell,  6  E.  60 ;  see  under  Ship  and  Eiver)  ;  all  rights  incident 
to  fishing,  such  as  landing,  beaching  boats,  and  drying  nets  (Stair,  loc.  cit. ; 
see  Fishings)  ;  and  in  practice  the  right  of  using  the  shore  in  connection 
with  batliing,  walking,  and  similar  recreation.  In  regard,  however,  to  the 
rights  last  mentioned,  usually  called  y?fs  spatiandi,  there  is  no  Scots  decision 
of  general  application,  as  all  the  cases  in  which  the  rights  of  the  public 
were  sustained  contained  averments  of  immemorial  usage,  on  which  the 

1  The  case  of  TFemyss'  Trs.  lias  been  appealed  to  the  House  of  Lords,  who  have  not  yet 
given  judgment. 


SEA;  SEASHOEE  101 

Courts  preferred  to  found  their  decision  {Officers  of  State,  8  D.  Til ;  affd.  6 
Bell's  App.  487  ;  Magistrates  of  Dundee,  14  K.  191). 

Except  for  the  purpose  of  navigation  or  tishing,  the  public  have  no  right 
to  remove  anything  from  the  seashore  {Firie,  11  E.  490;  Ld.  Scdtoun, 
20  D.  89  ;  Patcrson,  8  D.  752;  Macalistcr,  15  S.  490;  Innes,  Hume,  552). 
Those  employed  in  the  white  herring  fishery  may  use  any  waste  or 
uncultivated  land  lying  within  100  yards  of  high-water  mark  fur  landing 
their  stores,  curing  their  fish,  and  drying  their  nets,  and  may  erect  huts  or 
tents  for  these  purposes  (11  Geo.  ill.  c.  ol).  Whether  the  land  sought  to  be 
used  in  this  way  is  "  waste  or  uncultivated  "  is  a  question  of  fact,_and  very 
little  is  needed  to  withdraw  it  from  that  category  {Scott,  15  E.  27). 
Similar  rights  were  conferred  on  all  those  engaged  in  white  fisliing  by  29 
Geo.  II.  c.  23,  but  the  right,  except  as  regards  herring  fishers,  was  abohshed 
by  the  Fisheries  Act,  1868  (31  &  32  Yict.  c.  45,  s.  71). 

The  proprietor  of  an  estate  bounded  by  the  sea  may  not  derogate  from 
the  rights  of  the  public  bv  building  on  or  enclosing  the  foreshore  {Officers  of 
State,  S  1).  711;  affd.  6  Bell's  App.  487;  D.  of  Eoxburghc,  Mor.  10883). 
The  prescriptive   possession  of   the   seashore  as  pioperty  was  held^^to  be 
sufficient  to  interpret  a  charter  in  the  case  of  Young,  14  E.  (H.  L.)  53.     In 
the  opinion  of  Ld.  AVatson,  who  gave  the  leading  judgment,  there  is  a 
passage  in  apparent  conliict  with  the  rule  just  stated.     He  there  quotes 
with  approval  a  dictum  of  Ld.  Glenlee  in  CamjMl,  18  Nov.  1813,  F.  C. : 
"  When  a  landholder  is  bounded  by  the  sea,  it  is  true  he  has  a  bounding 
charter.     But  it  is  a  boundary  moveable  and  fluctuating  sud  ncdura,  and 
when  the  sea  recedes  he  must  be  entitled  still  to  preserve  it  as  his  boundary. 
'J'he  shore  is  indeed  still  puUicijiLris,  but  when  the  sea  goes  back  the  shore 
advances,  and  the  proprietor  is  entitled  to  follow  the  water  to  the  point  to 
which  it  may  naturally  retire  or  he  artificially  emhanlrd."     In  Young's  case 
one  of  the  incidents  of  possession  on  which  he  founded  was  the  building  of 
a    retaining   wall,   whereby  a   large   portion   of   the   foreshore   had    been 
reclaimed.     It   is   suggested   that   the   cases   may   be   reconciled   on   this 
principle,  viz.,  that  so' long  as  the  ground  is  de  facto  covered  by  water  when 
the  tide  is  in,  the  public  may  prevent  any  interference  with  their  rights  by 
building  or  otherwise  ;  but  that  once  the  sea  is  efficiently  excluded  at  all 
stages  of  the  tide,  the  ground  ceases  to  be  shore  and  the  time  for  the 
public's  interference  has  passed.     This  exiilanation  seems  to  have  been  in 
Ld.  Neavcs'  mind  when  he  said   that  no  title  of  abs<jlute  property  would 
entitle  a  proprietor  "  to  exclude  the  public  from  the  shore  so  long  as  it 
remainrd  a  shore  "  {Ilagart,  9  M.  127  ;  cf.  the  statements  in  Officers  of  State, 
8   D.   711,  particularly  on  p.  713:  "  While  the  icall  n-as  being  huilt,  the 
officers  of  State  brought  a  process  of  suspension  and  interdict."     The  facts, 
however,  turned  out  to  be  such  that  the  judgment  throws  no  light  on  tins 
point). 

If  the  proprietor  of  tlie  foreshore  l)ullds  a  ])ier  or  harbour  witlmut  the 
express  sanction  of  the  Cntwn,  such  pier  may  be  u^ed  by  the  public  with- 
out i.ayment  of  any  dues  {Earl  of  Stair,  8  E.  183).  On  the  other  hand,  if 
the  Crown  gives  permission  to  the  proprietor  of  the  foreshore  to  erect  a 
pier  oi)posite  his  own  property,  such  pier  will  be  tlie  juuporty  of  its  erector, 
and  ho  may  exact  ])aym(Mits  as  a  condition  (jf  aiiuwing  others  to  use  it 
{Colquhoun,  21  D.  990).  Usually  the  maximum  dues  which  may  be  charged 
are  inserted  in  the  Crown's  permission  to  erect  the  i)ier.  An  Act  of  I'arlia- 
ment  empowering  the  navigation  trustees  of  a  certain  tidal  river  to  deepen 
the  channel,  obliged  thorn  //(/'/•  alia  to  lengthen  the  i)rivately  owned  piers  ni 
the  river  if  their  operations  rendered  it  necessary.    The  House  of  Lords  held 


102  SEA;  SEASHOEE 

that  this  imported  no  obligation  on  the  trustees  to  uphold  and  repair  the 
altered  piers  thereafter  {Clyde  Navigation  Trs.,  20  E.  (H.  L.)  64).  The 
power  conferred  on  Sheriffs  by  the  Burgh  Police  (Scotland)  Act,  1892  (55 
&  56  Vict.  c.  55,  s.  11),  of  extending  the  boundaries  of  burghs  within  their 
sheriffdoms  has  been  held  to  enable  them  to  include  within  such  extended 
boundaries  the  portion  of  a  privately  owned  pier  lying  below  low-water  mark 
{Dunoon  Commrs.,  22  E.  379).     See  Poets  and  Harbours  and  Eiver. 

The  public  rights,  of  which  the  Crown  is  trustee,  form  part  of  the  regalia 
majora,  which  are  inalienable  by  the  Crown  {Agncio,  11  M.  309 ;  see 
Eegalia).  But  the  Crown  has  likewise  a  patrimonial  interest  in  the  fore- 
shore as  in  the  solum  of  the  territorial  waters  (Stair,  ii.  1.  5 ;  Ersk.  ii.  1.  6  ; 
Bell,  Frln.  639) ;  and  this  the  Crown  may  convey  to  individual  subjects  by 
grant.  In  former  times  grants  of  the  Crown's  right  to  collect  wreckage 
from  the  shore  were  frequently  given  to  the  seaboard  proprietors,  but  in 
modern  times  this  riglit  is  of  little  value.  See  Eegalia.  The  same  may  be 
said  of  the  right  to  collect  sea- ware  for  manuring  lands  and  making  kelp. 
This  not  being  a  use  connected  with  navigation  or  fishing,  the  public  have 
no  right  to  exercise  it.  When  the  right  is  de  facto  exercised  by  the 
proprietor  of  the  adjoining  lands,  the  Courts  will  not  put  him  to  prove  his 
title  at  the  suit  of  a,nyone  who  does  not  set  forth  an  ex  facie  good  title  in 
himself  {Pirie,  11  E.  490 ;  Ld.  Saltoun,  20  D.  89 ;  Paterson,  8  f).  752;. 

The  rights  of  fishing  and  of  making  piers  and  harbours  have  been  already 
glanced  at,  and  are  dealt  with  more  fully  under  Eisiiings  and  Ports  and 
Harbours  respectively.  In  Pruce  (17  E.  1000)  the  Court  negatived  the 
existence  of  a  right  of  lieritors  in  Shetland  to  share  in  the  value  of  a  school 
of  caaing  whales  stranded  ex  adverso  of  their  lands  and  captured  by  the 
people  of  the  district. 

As  to  acquisition  of  property  in  the  foreshore,  three  propositions  were 
stated  as  settled  law^  by  Ld.  JMure  and  indorsed  by  Ld.  Blackburn  {Loi'd 
Advocate  and  the  Clyde  Trs.,  6  E.  (II.  L.)  p.  72,  at  pp.  75  and  84).  "  The 
first  is  that  property  in  the  foreshore  is  capable  of  being  transferred  by  the 
Crown  to  a  private  proprietor.  Secondly,  that  such  property  can  only  be 
alienated  by  the  Crown  subject  to  and  under  reservation  of  any  rights  of 
navigation  or  other  rigiits  which  the  Crown,  as  representing  the  public,  may 
have  over  it.  Thirdly,  that  a  Crown  title,  and  more  especially  a  barony 
title,  to  property  along  the  seasliore  or  a  tidal  navigable  river,  when  fol- 
lowed by  possession  of  the  foreshore,  is  sufficient  to  constitute  a  valid  right 
of  property  in  the  foreshore  altliough  the  title  does  not  contain  any  express 
grant  of  the  shore,  or  any  such  specific  and  definite  boundary  as  is  by  itself 
sufficient  to  instruct  that  the  shore  was  intended  to  be  conveyed  "  (see  also 
Pnchanan,  9  E.  1218;  Agneiv,  11  M.  309).  When,  however,  the  title  gives 
a  boundary  to  the  grant  which  excludes  the  shore  (as,  e.g.,  "  flood  mark  "  or 
"  sea  flood,"  or  yZua;«7?i  ■???«?' Ls,  which  are  equivalent  to  "high-watermark"), 
no  amount  of  possession  will  give  the  possessor  a  property  in  the  foreshore 
{Berry,  3  D.  205).  The  sea  itself  being  a  fluctuating  boundary,  the  proprietor 
is  entitled  to  follow  it  to  low-water  mark  (Ld.  AVatson  in  Young,  14  E. 
(H.  L.)  53  cit.). 

The  possession  foxmded  on  must  in  each  case  be  exclusive  possession, 
and  it  is  competent  to  any  party  opposing  a  claim  of  this  sort  to  prove 
adverse  possession  by  the  public.  But  the  weight  to  be  given  to  such 
evidence  will  vary  with  the  importance,  frequency,  and  pubhcity  of  the  use 
proved  {Young,  eit.:  Buchanan  &  Geils,  9  E.  1218;  M.  of  Ailsa,  8  D.  752; 
Macalister,  15  S.  490). 

Where  a  subject,  having  right  to  the  foreshore,  grants  the  land  bounded 


SEAMEN  103 

by  the  sea  to  another,  the  granter  cannot  thereafter  interpose  himself 
between  his  grantee  and  the  sea ;  and  consequently  he  cannot  dispute  his 
grantee's  right  to  ground  added  to  the  original  property  alluvione,  i.e.  by 
gradual  and  imperceptible  deposit  on  shore  {Magistrates  of  Montrose,  13  E. 
9-47 ;  Hunter,  7  M.  899).     As  to  boundaries,  see  Laird,  9  M.  699. 

Unless  in  special  circumstances,  the  right  to  the  foreshore  includes  rio-ht 
to  the  minerals  underneath ;  but  there  are  no  peculiarities  making  it  neces- 
sary to  treat  the  subject  in  this  place.     See  Mixes  and  Mixeeals, 


Seal  of  Cause. — A  seal  of  cause  is  the  grant  by  the  magistrates 
of  certain  royal  burghs  (who  have  this  power  as  delegates  from  the  Crown) 
constituting  crafts  or  manufacturing  corporations  within  burgh,  and  pre- 
scribing their  privileges  and  powers. 

[See  Bell,  Dictioiutry,  h.t.;  Bell,  Frin.  s.  2183;  Ersk.  i.  7.  s.  G4;  Croolcs, 
1776,  Mor.  2007 ;  Moivat,  1827,  4  S.  52.]     See  Lxcoepokatiox. 


Seals. — In  Scotland  the  use  of  seals  is  now  wholly  unnecessary  in 
the  execution  of  private  deeds  (M.  Bell's  Lectures  on  Conveyancing,  1.  30; 
Ersk.  iii.  2.  7 ;  and  see  Titles  to  Land  Act,  1868,  s.  78).  Tlie  public  seals 
in  use  are :  (1)  The  Great  Seal,  having  the  same  effect  as  the  ancient  Great 
Seal  of  Scotland ;  (2)  The  Privy  Seal ;  (3)  The  Quarter  Seal ;  and  (4)  The 
Signet. — [Ersk.  ii.  5.  82  ;  iii.  2.  7  ;  Stair,  iv.  42.  5  ;  ]\Iackay's  Practice,  i.  159.] 


Seamen. — 1.  Definition,  etc. — A  seaman  is  defined  in  the  Merchant 
Shipping  Act,  1S94  (57  &  58  Vict.  c.  60,  s.  742),  as  including  "every  person 
(except  masters,  pilots,  and  apprentices  duly  indentured  and  registered) 
emph'yed  or  engaged  in  any  capacity  on  board  any  ship."  There  is  no 
requirement  that  any  seaman  or  any  proportion  of  tlie  crew  of  a  British 
ship  shall  be  British.  Ollicers  require  to  obtain  certificates  of  competency, 
granted  by  Local  Marine  Boards  after  examination  (AL  S.  A.,  1894,  ss. 
92-104);  and  seamen  may  obtain  the  rating  of  A.B.  after  serving  four  years. 
before  the  mast,  or  one  year  in  a  trading  vessel  in  addition  to  three  years 
in  a  (hicked  fishing  vessel  registered  under  the  Mercliant  Shipping  Acts 
(M.  S.  A.,  1894,  s.  126).  The  masters  and  crews  of  two  ships  belonging  to 
the  same  owners  are  not  necessarily  in  common  employment,  so  as  to  dis- 
entitle tlie  master  and  crew  of  one  to  claim  for  damage  due  to  the  negli- 
gence of  the  master  and  crew  of  the  other  {The  Petrel,  [1893]  P.  320)  ;  "but 
the  master  and  the  crew  of  a  ship  are  in  common  emi>loyment,  and  the  sea- 
men cannot  recover  for  loss  due  to  the  negligence  of  the  master  {Lcddy, 
1873,  U  M.  304;  Ifedlry,  [1894]  App.  Ca.  222).  Neither  the  Employers' 
Lial)ility  Act,  18S0  (43  &  44  Vict.  c.  12),  nor  the  Workmen's  Compensation 
Act,  1897  (GO  &  61  Vict.  c.  37),  applies  to  seamen. 

2.  Mercantile  Marine  Offices,  etc. — The  Board  of  Trade  is  empowered  by 
statute  to  establish  Local  .Marine  Boards  throughout  the  kingdom  (M.  S.  A., 
1894,  ss.  244-245) ;  and  tliore  are  Mercantile  ]\Iarine  Cilices  at  the  principal 
seaports,  under  tlie  control  of  superintendenls,  whose  duties  are  to  keep 
regi.strics  for  seamen,  to  facilitate  their  engagement  and  discharge,  and 
provide  means  for  securing  their  presence  on  hoard  at  the  proper  times 
(M.  S.  A.,  1894,  S3.  246-250).  There  is  a  General  Register  and  Eecord 
Office  of  Seamen  in  London,  at  which  a  register  of  all  persons  who  servo 
on  ships  under  the  Merchant  Shipping  Acts  is  kept ;  and  obligations  are 


104  SEAMEN 

imposed  on  shipmasters,  superintendents,  and  officers  of  customs  to  luake 
returns,  etc.,  to  the  Eegistrar-General  (M.  S.  A.,  1894,  ss.  251-256). 

3.    Hiring   of    Seamen. — The   engagement    of    seamen   in    the    United 
Kingdom  can  only  be  done  by  the  master,  owner,  or  mate,  or  by  a  servant 
of  the  owner,  or  a  superintendent,  or  by  a  person  licensed  by  the  Board 
of  Trade  (M.  S.  A.,  1894,  ss.  110-112);  and  this  applies  to  hiring  seamen 
for  foreign   as  well   as   for   British  ships  {Hart,  1898,  6   S.  L.  T.  250). 
The  master  is  required,  except  in  the  case  of  ships  of  less  than  eighty 
tons  registered  tonnage  exclusively  employed   in  trading  in  the   United 
Kino-dom,  to  enter  iuto  an  agreement  in  accordance  with    the  Merchant 
Shipping  Acts  with  every  seaman  whom  he  carries  to  sea  as  one  of  his 
crew  from  any  port  in   the   United  Kingdom   (i\I.   S.   A.,  1894,  s.   113). 
This  agreement  must  be  in  a  form  approved  by  the  Board  of  Trade,  and 
must  be  signed  by  the  master  before  a  seaman  signs.     It  must  state  the 
nature  and  duration  of  the  engagement,  the  number  and  description  of  the 
crew,  the  time  at  which  each  seaman  is  to  be  on  board,  the  capacity  in 
which  he  is  to  serve,  his  wages  (and  this  word  is  defined  in  sec.  742  to  in- 
clude emoluments),  a  scale  of  provisions  to  be  furnished  to  him,  and  any 
regulations  as  to  conduct  and  punishment  for  misconduct.     The  nature  of 
the  engagement  is  nut  invalidly  stated  by  making  the  voyage  to  one  place 
or  alternatively  another,  or  for  a  voyage  or  alternatively  for  a  period  of 
time  {Frazcr,  1857,  2  C.  B.  N.  S.  512),  but  it  cannot  be  stated  in  indefinite 
terms,  e.g.  to  any  port  or  ports  in  Europe  (M'Lachlan  on  Shipping,  p.  221). 
A  master  of  a   ship   registered  at  a  port  outside  the  United  Kingdom 
may  engage  single  seamen  in  the  United  Kingdom  by  them  signing  an 
agreement,  already  made  with  the  crew,  according  to  the  law  of  the  port 
where  she  is  registered  or  where  her  crew  was  engaged  (M.  S.  A.,  1894, 
s.  114).     Special  provisions  are  made  with  respect  to  the  agreement  with 
the  crew  of  a  foreign-going  ship,  notably  that  which  requires  each  seaman 
to  sign  in  presence  of  a  superintendent.    If  such  an  agreement  be  a  running 
agreement,  it  is  not  to  extend  beyond  the  following  30th  June  or   31st 
December,  or  the  first  arrival  of  the  ship  at  her  port  of  destination  in  the 
United  Kingdom  after  that  date,  or  the  discharge  of  her  cargo  thereafter 
(M.  8.  A.,  1894,  s.  115).     And,  similarly,  special  provisions  are  made  with 
respect  to  agreements  with  crews  of  home-trade  ships.     In  this  case  the 
agreement   may  be   for   service   in   two   or  more  ships  belonging  to  the 
same  owner,  and  an  agreement  for  such  service  may  be  made  with  the 
owner  instead  of  with  the  master.     Agreements  are  limited  in  time  in  the 
same  way  as  running  agreements  in  foreign-going  ships,  but  an  exception  is 
admitted  in  the  case  of  individual  seamen  engaged  in  forms  sanctioned  by 
the  Board  of  Trade  (I\I.  S.  A.,  1894,  s.  116).     Eegulations  are  also  made 
for  reporting  changes  in  the  crews  of  foreign-going  ships,  and  for  obtaining 
certificates  as  to  agreements  with  crews  of  both  foreign-going  and  home- 
trade  ships  (M.  S.  A.,  1894,  ss.  117-119).     At  the  commencement  of  every 
voyage  or  engagement  a  copy  of  the  agreement  with  the  crew  must  be 
posted  up   in   some   part   of   the   ship  which   is   accessible  to   the   crew 
(M.  S.  A.,  1894,  s.  120).     When  the  master  of  a  ship  engages  a  seaman 
in   any  British    possession  abroad  other  than   that   in  which  the  ship    is 
registered,  or  at  a  port  at  which  there  is  a  British  consular  officer,  the  engage- 
ment must  be  before  a  superintendent  or  an  officer  of  customs,  and  certain 
other  modifications  are  made  in  the  provisions  with  respect  to  the  engage- 
ment of  a  crew  (M.  S.  A.,  1894,  s.  124).     In  any  legal  or  other  proceeding 
a  seaman  may  prove  the  contents  of  an  agreement  with  the  crew  without 
producing  it  (M.  S.  A.,  1894,  s.  123),  and  a  Court  of  law  may  rescind  the  con- 


SEAMEX  105 

tract  of  service  if  it  think  it  just  to  do  so  (M.  S.  A.,  1894,  s.  168).  The 
sicruing  of  the  agreement  between  master  and  seaman  is  not  an  essential  in 
entering  into  the  contract  of  service.  Tliat  contract  is  made  in  any  form, 
and  may  exist  although  the  written  agreement  required  by  the  statute  to  be 
made  before  proceeduig  to  sea  is  never  made  {Thomson,  1890,  18  E.  (J.  C.) 
■6  \  Austin,  1868,  L.  li.  3  Q.  B.  208). 

4.  Wages. — AVages  may  be  made  payable  by  the  time  or  voyage,  and  may 
be  stipulated  to  be  paid  in  money  at  a  certain  rate,  or,  as  is  customary  in  the 
whale  fishery,  in  a  proportion  of  the  profits.  But  the  old  rule  that  freight 
is  the  mother  of  wages,  by  which  wages  were  held  to  depend  on  the  earning 
of  freight,  has  been  abolished  by  statute  (:\L  S.  A.,  1894,  s.  157).  If 
wages  are  agreed  to  be  so  much  per  month,  they  will  vest  at  the  end  of 
each  month,  even  although  they  may  not  be  payable  until  the  vessel  has 
reached  home  {Button,  1869,  L.  E.  4  C.  P.  330 ;  and  see  M.  S.  A.,  1894, 
s.  155).  But  when  an  agreement  was  made  with  a  mate  for  so  much  for 
the  voyage  "  provided  he  proceeds,  continues,  and  does  his  duty  in  the  said 
ship  from  hence  to  the  port  of  Liverpool,"  and  he  died  on  the  voyage,  it  was 
held  that  no  part  of  the  wages  was  due  at  all  {Cutter,  1795,  2  Smith's 
L.  C.  1,  3  11.  Pi.  185,  6  T.  Pt.  320).  A  seaman  cannot  abandon  his  right  to 
wages  in  case  of  the  loss  of  the  ship,  nor  can  he  abandon  any  right  to 
salvage  (M.  S.  A.,  1894,  ss.  156,  212). 

Every  seaman  is  bound  to  exert  himself  to  the  utmost  in  the  service  of 
the  ship,  whether  in  the  ordinary  course  of  navigation  or  in  exceptional 
peril.  This  obligation,  already  incumbent  on  the  seaman,  has  prevented 
him  enforcing  a  contract  with  the  master,  entered  into  during  the  voyage, 
for  extra  remuneration  in  consideration  of  extraordinary  exertion  {Harris, 
1854,  3  El.  &  Bl.  559,  23  L.  J.  Q.  B.  295).  But  this  decision  was  based  on 
the  rule  of  English  common  law,  whereby  a  mere  promise  without  con- 
sideration is  void.  On  the  other  hand,  when  a  seaman  voluntarily  undertook, 
in  consideration  of  special  payment,  to  perform  extra  services  which  Ins  duty 
did  not  already  bind  him  to  do,  the  agreement  was  held  valid  {Hartley,  1857, 
26  L.  J.  Q.  11  322 ;  Hanson,  1867,  L.  li.  3  C.  P.  47).  In  all  cases  of  wreck 
or  loss  of  tlie  ship  it  is  provided  by  statute  that  proof  that  a  seaman  has 
not  exerted  himself  to  the  utmost  to  save  the  ship,  cargo,  and  stores  shall 
bar  liis  claim  to  wages  (M.  S.  A.,  1894,  s.  157). 

A  seaman's  wages  may  be  lost  or  forfeited  (Abbott  on  Shippinff,  13th 
eJ.,  p.  789).  He  may  be  deprived  of  his  wages  owing  to  no  fault  of  his  own, 
or  he  may  forfeit  them  through  misconduct.  If  a  seaman  is  not  able  to 
perform  his  duties  during  part  of  the  voyage,  and  if  this  inability  is  caused 
by  accident  on  board  the  sliip  or  by  illness,  he  is  nevertheless  entitled  to 
wages  during  the  period  of  his  inability  (Abbott,  13th  ed.,  p.  778).  When 
the  service  of  a  seaman  terminates  prematurely  owing  to  loss  of  the  ship,  or 
to  his  being  left  on  shore  abroad  under  a  certificate  of  unfitness  or  inability 
to  proco('(l,  lie  is  entitled  to  wages  up  to  the  time  of  such  termination,  but 
snbscfiuent  wages  are  lost  (M.  S.  A.,  1894,  s.  158).  In  one  case  a  jury  found 
that  a  second  mate  had  Ijcen  guilty  of  drunkenness  and  abusive  conduct 
subversive  of  discipline,  but  did  not  find  to  what  extent  and  degree  that 
misconduct  prevailed,  nor  whetli(;r  it  was  habitual  or  such  as  to  endanger 
the  safety  or  discipline  of  the  shij).  The  Court  hrld  that  this  finding  did 
not  at  common  law  cause  a  forfeiture  of  wages  (sec  M.  S.  A.,  1894,  ss.  220, 
702).  The  seaman  in  tliis  case  had  been  left  on  shore  abroad,  l)efi)re  the 
completion  <>l'  the  voyage,  f)wing  to  his  own  negligcmcie,  ami  the  Court  held 
that  allhou'jh  he  lost  all  ri«dit  to  watrcs  for  the  subseiiuent  iwrtion  of  the 
engagement,  he  had  sullered  no  forfeiture  under  the  special  terms  of  his 


106  SEAMEN 

agreement  {Button,  18G9,  L.  R  4  C.  P.  330).     When  an  agreement  for  wages 
is  terminated  through  no  fault  on  the  part  of  either  contracting  party, — e.g. 
a  seaman  was  detained  at  a  port  by  the  British  consul,  who  sent  him  home 
to  be  a  witness  at  the  trial  of  the  captain  for  a  criminal  offence,  and  he  was 
thus  unable  to  continue  to  perform  his  part  of  the  agreement,— there  will  be 
no  forfeiture  of  wages  previously  earned,  but  there  will  be  a  loss  of  sub- 
sequent wages  {Melville,  1855,  24  L.  J.  Q.  P>.  200).     A  seaman  is  not  entitled 
to  wages  for  any  period  during  which  he  unlawfully  refuses  or  neglects  to  work 
when  required,  or  is  imprisoned  for  an  offence  (M.  S.  A.,  1894,  s.  159),  or  is,  by 
reason  of  illness  caused  by  his  own  wilful  act  or  default,  incapable  of  perform- 
ing his  duty  (M.  S.  A.,  1894,  s.  160).    Among  other  penalties  of  desertion  is 
forfeiture  of  wages  earned  at  the  time  of  desertion,  and  also,  if  the  desertion 
takes  place  abroad,  of  the  wages  the  deserter  may  earn  in  any  other  ship 
in  which  he  may  be  employed  until  his  next  return  to  the  United  Kingdom 
(M.  S.  A.,  1894,  s.  221  («));  and  these  are  to  be  employed  in  reimbursing 
expenses  caused  by  the  desertion  (M.  S.  A.,  1894,  s.  232;  see  The  Parkdalc, 
[1897]  P.  53).     Absence  from  the  ship,  however,  due  to  the  power  of  a 
foreign  country  is  not  desertion  if  there  is  no  fault  on  the  part  of  the 
seaman,  and  entering  into   the  naval  service  of  the  Queen  is  not  counted 
desertion  (M.  S.  A.,  1894,  s.  195  (1)).     Indeed,  the  Merchant  Shipping 
Act,  1894,  by  sec.   195  (2),  expressly  forbids  the  introduction  into  any 
agreement  of  a  stipulation  whereby  a  seaman  incurs  a  forfeiture  or  loss 
in   case   he  enters  the  naval  service  of  Her  Majesty.     To  say  whether 
abandonment  of  the  ship  is  desertion  is  in  many  cases  a  difficult  question. 
Ko  complete  definition  can  be  given  of  the  word :  it  is  often  a  question  of 
intention,  not  easily  deducible  from  particular  facts.    "  To  constitute  desertion 
in  such  a  case  as  this,"  said  Dr.  Lushingtonin  The  Westmoreland  (1841,  IW. 
Rob.  216), "  there  must  be  a  complete  abandonment  of  duty  without  justifica- 
tion on  the  part  of  the  mariners,  and  such  abandonment  must,  moreover, 
be  by  quitting  the  ship."     And  in  another  case  he  said :  "  If  there  be  an 
absence  from  the  vessel  animo  revertendi,  whatever  be  its  duration,  it  would 
not  be  a  desertion  forfeiting:  the  whole  of  the  wages"   {The  Two   Sisters, 
1843,  2  W.  Eob.  125,  at  138  ;  cf.  Seivard,   1884,  12  R  222).     There  is  no 
desertion  if  the  seaman  leaves  the  ship  on  account  of  a  breach  of  his  agree- 
ment on  the  part  of  the  master,  e.g.  a  captain  employed  the  ship  in  a 
manner  inconsistent  with  the  neutrality  laws  after  having  agreed  with  the 
seamen  to  go  on  a   peaceable   voyage  {Burton,  1867,  L.  R   2   Ex.  340 ; 
O'Neil,  [1895]  2  Q.  B.  418) ;   or  if  he  leaves  the  ship  on  account  of  the 
master's  unreasonable    and    unnecessary   cruelty  to   the   seamen   {Prince 
Edward,  1854,  24  L.  J.  Q.  B.  9).     A  seaman  agreed  to  serve  on  board  a 
Japanese  man-of-war  for  the  voyage  from  England,  where  the  ship  had 
been  built,  to  Japan.     During  the  voyage  war  was  declared  between  Japan 
and  China.     It  was  held  that  the  seaman  was  justified,  on  account  of  the 
increased  risk,  in  abandoning  the  ship  when  he  became  aware  of  the  war, 
and  was  entitled  to  claim  wages  although  they  were  agreed  to  be  for  the 
whole  voyage.     The  failure  in  completin-r  the  voyage  was  due  to  fault  on 
the  part  of  the  owners  of  the  vessel  {O'A^eil,  [1895]  2  Q.  B.  418).     Absence 
without  leave  not  amounting  to  desertion,  or  not  treated  as  such  by  the 
master,  is  punishable  by  forfeiture  of  part  of  the  offender's  wages  (M.  S.  A., 
1894,  8.  221  (5));  and  various  offences  against  discipline,  etc.,  are  similarly 
punished  (M.  S.  A.,  1894,  ss.  161,  225,  232  (3)).    But  these  forfeitures  do  not 
exclude  the  common  law  right  of  the  owners  to  set  off  against  a  claim  for 
wages  the  amount  of  any  damage  suffered  by  them  owing  to  the  seaman's 
conduct  {Sharj),  1884, 11  R.  745).    When  a  seaman  has  contracted  for  wages 


SEAMEN  107 

by  the  voyage  or  run,  or  in  the  form  of  a  sliare  of  profits,  the  ranonnt  of  any 
forfeiture  incurred  under  the  Act  is  a  proportion  of  the  ^Yhole  sum  agreed 
on,  corresponding  to  the  ratio  which  the  period  of  forfeiture  bears  to  the 
whole  time  spent  on  the  voyage  (M.  S.  A.,  1894,  s.  234).  No  forfeiture  of 
wages  follows  acts  of  drunkenness  or  disorderly  conduct  as  a  general  rule, 
but  such  conduct  may  be  so  gross  and  habitual  as  to  incapacitate  the 
offender  from  performing  his  duty,  in  which  case  he  will  forfeit  his  whole 
wages  {The  MLcocl,  and  cases  there  referred  to,  1880,  5  P.  D.  254).  Pro- 
visions are  made  by  statute  with  respect  to  the  xiayment of  %Aages  (M.  S.  A., 
1894,  ss.  131-136,  139,  195-197),  the  settlement  of  disputes  as  to  the 
amount  thereof  (M.  S.  A.,  1894,  ss.  137, 138),  and  any  advance  or  allotment  of 
wages  (M.  S.  A.,  1894,  ss.  140-144).  Certain  privileges,  such  as  ireedom 
from  arrestment,  are  conferred  on  seamen's  wages  (M.  S.  A.,  1894,  s.  163), 
and  facilities  are  given  for  their  recovery  (M.  S.  A.,  1894,  ss.  164-166  «). 

5.  Seamen's  lien.— Every  seaman  has  by  the  conmion  law  a  hen  over 
the  ship  and  freight  in  security  of  his  wages.  And  a  similar  lien  is  given 
by  statute  to  the  master  (see  Shipmaster).  This  lien  secures  not  merely 
the  remuneration  stated  in  his  agreement  for  services  on  the  voyage,  but 
wages  for  all  services,  whether  rendered  in  port  or  at  sea,  and  whether  the 
seaman  has  entered  into  a  written  agreement  with  the  master^  or  serves 
under  a  verbal  contract  (re  The  Great  Eastern  S.  S.  Co.,  1885,  5  Asp. 
Mar.  Law  Cas.  N.  S.  511).  And  it  has  been  held  that  a  person  who,  with 
leave  of  the  Court,  advances  money  to  pay  the  wages  of  the  crew,  has  the 
same  lien  as  the  crew  would  have  had  for  their  wages  (The  Fair  Haven, 
1866,  1  A.  &  E.  67).  It  covers  not  only  freight  due  from  the  shipper  to 
the  owner  or  charterer,  but  also  freight  due  from  a  sub-charterer  to  a 
charterer  (The  Andalina,  1886, 12  P.  I).  1).  There  was  some  doubt  whether 
the  law  of  maritime  lien  recognised  in  England  applied  to  Scotland,  but 
this  has  been  set  at  rest  by  Currie  ([1897]  App.  Ca.  97,  24  P.  (H.  L.)  1),  m 
which  it  was  decided  that  in  maritime  causes  which  exclusively  belonged 
to  the  jurisdiction  of  the  Admiralty  Courts  in  Scotland  and  England  the 
law  applicable  was  neither  English  nor  Scottish,  hut  British  law,  and 
therefore  one  and  the  same  code  (see  .S^..S^.  "  Blair  more"  Co.  Lcl,  [1898]  App. 
Cas.  593).  The  exact  nature  of  this  right  was  described  by  Sir  J.  Jervis, 
C.  J.,  in  1852,  as  follows: — 

"A  maritime  lien  does  not  include  or  require  possession.     The  word 
is  used  in  maritime  law  not  in  the  strict  legal  sense  in  which  we  under- 
stand it  in  Courts  of  common  law,  in  which  case  there  could  be  no  lien 
where  there  was  no  possession,  actual  or  constructive ;  but  to  express,  as 
if  by  analocry,  the  nature  of  claims  which  ncitlier  presuppose  nor  originate 
in  possession.     Tliis  was  well  understood  in  the  civil  law,  by  whicli  there 
miglit  be  a  pledge  witli  possession,  and  a  hypothecation  without  possession, 
and  l)y  which  in  eitlier  case  the  right  travelled  with  tlic  thing  into  whose- 
soever possession  it  came.     TFaving  its  origin  in  tl;is  rule  of  the  civil  law, 
a  maritime  lien   is  well   delined'  by  Ld.  Tenterdcn   to   mean  a  claim  or 
privilege  upon  a  thing  to  be  carried  into  effect  by  legal  process ;  and  :Mr. 
Justice  Story  explains  that  process  to  be  a  i)roceeding  in  rem,  and  adds, 
that  wlierever  a  lien  or  claim  is  given  ni)on  the  thing,  then  the  Admiialty 
enforces  it  by  a  proceeding  in  rem,  and  indeed  is  the  only  Court  competent 
to  enforce  it"  (The  Bold  Bi'eclci'[/h,  1852,  7  Moore's  P.  C.  Cas.  267,  at  284). 
It  is  not  necessary  to  the  constitution  of  a  maritime  lien  that  the  per-^on 
claiming  it  should  have  a  ]iersonal  claim  against  the  owner  of  the  thing 
covered'by  it  (.see  Pottomky).     "Such  a  lien  is  a  i)rivilcgcd  cluim  u]>on 
a  vessel  in  respect  of  service  done  to  it,  or  injury  caused  l)y  it,  to  be  carried 


108  SEAMEN 

into  effect  by  legal  process.  It  is  a  right  acquired  by  one  over  a  thing 
belonging  to  another — a  jus  in  re  aliena.  It  is,  so  to  speak,  a  suntractiou 
from  1.he  absolute  property  in  the  owner  in  the  thing.  The  right  must 
therefore  in  some  way  have  been  derived  from  the  owner,  either  directly  or 
throuoh  the  acts  of  persons  deriving  their  authority  from  the  owners" 
(per  Gorell  Barnes,  J.,  in  The  Ripon  City,  [1897]  P.  226);  and  The  Edwin 
(1804,  B.  &  L.  281)  is  explained  by  Gorell  Barnes,  J.  {The  Eipon  City,  supra, 
at  p.  230),  in  accordance  with  this  statement.  In  that  case  the  master  of 
a  ship,  appointed  by  persons  who  had  obtained  fraudulent  possession 
from  the  owners,  was  lield  entitled  to  enforce  a  lien  for  his  wages  and 
disbursements. 

A  maritime  lien  is  not  lost  by  private  sale  or  transfer  of  the  subjects 
covered  by  it  to  auother  owner.     "  It  is  not  necessary,"  said  Sir  J.  Jervis 
{The  Bold  Bucckugh,  supra,  at  p.  285), "  to  say  that  the  lien  is  indelible,  and 
may  not  be  lost  by  negligence  or  delay  where  the  rights  of  other  parties 
may  be  compromised;    but  where  reasonable   ddigence  is  used,  and   the 
proceedings  are  had  in  good  faith,  the  lien  may  be  enforced  into  whosesoever 
possession  the  thing  may  come."     All  liens  do  not  rank  equally.     A  lien  for 
damage,  it  is  said,  is  preferred  to  one  arising  ex  contractu  (Abbott,  13th  ed., 
872).     In  the  case  of  a  foreign  vessel  it  was  held  that  a  lien  for  damage  by 
collision  takes  precedence  of  one  for  wages,  whether  these  wages  are  earned 
before  or  after  the  collision ;  the  reason  b^ing,  that  the  mariners,  although 
deprived  of   their  full  claim  against  the  vessel,  can  nevertheless  proceed 
against  the  owners  personally  XThc  Elin,  1882,  8  P.  D.  39,  129).     But  the 
master's  and  seamen's  lien  for  wages  i^revails  over  the  possessory  lien  of  a 
shipwright,  for  example,  who  has  obtained  possession  of  the  ship  to  put 
work  on  it ;  the  extent  to  which  the  seamen's  lien  is  preferred  being  for 
wages   earned   before   the   shipwright   obtained   possession,  together  with 
subsistence  thereafter  and  cost  of  returning  home  if  they  are  abroad  (T/ie 
Immacolata  Concezione,  1883,  9  l\  D.  39;   The  Gustaf,  1862,  31  L.  J.  Ad. 
207  ;  as  to  the  meaning  of  "  liome,"  see  M.  S.  A.,  1894,  s.  186,  and  Edwards, 
[1897]  2  Q.  B.  327  ;  Purvis,  1898,  15  T.  L.  Pt.  15).    The  seaman,  in  virtue  of 
his  lien,  has  a  priority  over  claims  for  towage  and  light  dues  {The  Andcdina, 
1886,  12  P.  L).  1);  and  a  lien   for  wages' is  preferred  to  the  rights  of  a 
mortgagee  {The  Fcronia,  1867,  L.  E.  2  Ad.  &  Eccl.  65). 

A  maritime  lien  is  extinguished  by  payment  of  the  debt ;  and  it  has  been 
held  in  England  that  release  of  arrestment,  on  bail  or  caution,  releases  the 
lien  {The  Christiansborg ,  1885,  10  P.  D.  141).  Inordinate  delay,  which  has 
led  to  prejudice  by  inducing  persons  to  act  on  the  belief  that  no  lien  existed, 
or  at  least  that  it  had  been  waived,  will  also  form  a  defence  to  its  enforce- 
ment. But  this  is  a  question  of  circumstances  in  each  case.  In  one  case  a 
collision  in  1878  gave  rise  to  a  lien.  Tne  action  against  the  ship  was  not 
brought  until  1889,  when  it  was  pleaded  that  the  right  was  extinguished  by 
laches,  neglect,  and  delay  on  the  p  irt  of  the  plaintiffs ;  but  this  defence  was 
repelled  {The  Kong  Magnus,  [1891]  P.  223).  In  another  case  a  lien  arose 
early  in  1880.  No  action  was  taken  till  November  1881 ;  and  meanwhile, 
in  October  1881,  the  vessel  had  changed  hands.  But  in  the  circumstances 
it  was  held  that  the  right  of  lien  had  not  been  lost  {The  Fairport,  1882, 
8  P.  D.  48). 

6.  Discharge  of  Seamen. — A  seaman  serving  in  a  British  foreign-going  ship 
nmst,  if  discharged  in  the  United  Kingdom,  be  discharged  in  presence  of  a 
superintendent  (M.  S.  A.,  1894,  s.  127);  and  the  statute  provides  for  the 
granting  of  certificates  to  discharged  seamen,  and  reports  as  to  their  character 
being  male  by  the  master  (M.  S.  A.,  1834,  ss.  123-130,  186  (1)).     Seamen 


SEAECHES ;  SEAECH  FOE  INCUMBEANCES  109 

discharged  otherwise  than  in  terms  of  tlieir  agreement  with  the  master  are 
entitled  to  compensation  (M.  S.  A.,  1894,  s.  162).  When  the  dischar<^e 
takes  place  abroad  the  master  must  also  provide  for  the  seamen's  return 
home  (M.  S.  A.,  1894,  s.  186) ;  and  "  home"  in  this  section  means  the  port 
at  which  the  seaman  \vas  shipped,  or  any  other  port  in  the  United  Kinfrdom 
agreed  on  by  the  seaman  (Edwards,  [1897]  2  Q.  B.  327;  Purvis,  189'8,  15 
T.  L.  E.  15).  Conditions  are  also  placed  upon  the  master's  power  of  leaviiK^ 
or  discharging  seamen  abroad  (M.  S.  A.,  1894,  ss.  187-189). 

[Abbott  on  Shipping ;  Maude  and  Pollock  on  Shipping ;  M'Lachlan  on 
Shipping  ;  Kay  on  Shipmasters  and  Scamcn.'\ 

See  Salvage  ;  Se.vwokthixess  ;  Ship. 


Searches;  Search  for  Incumbrances. 

1.  Definition  and  Purpose. 

2.  Duties  of  Agents  in  the  Matter. 

3.  Official  and  Xon-OlKcial  Searches. 

4.  Tiie  Eegisters  Searched. 

5.  The  Method  of  Searching. 

6.  The  Period  of  Search. 

7.  Form  of  JMemorandum  for  Search. 

8.  Miscellaneous  Observations. 

9.  Incumbrances  not  disclosed  by  a  Search. 


I.  Definition  and  Pchpose. 

A  search  may  be  defined,  p)^'^^narily,  as  an  investigation  of  the  Propci'ty 
and  Personal  Eegisters  with  a  view  to  ascertaining  the  state  of  the  title  of 
a  particular  heritable  property,  and,  secondarily,  as  a  certificate  or  report 
of  such  an  investigation,  made  by  an  official  or  a  professional  searcher  of 
records,  giving  an  abridged  description  in  chronological  order  of  all  writs 
relating  to  the  property  in  question,  and  of  all  entries  affecting  its  successive 
proprietors,  appearing  in  the  Property  and  Personal  Eegisters  respectively 
within  the  period  whicli  the  search  embraces.  The  object  of  a  search  is 
to  provide  the  intending  purchaser  or  feuar  of  a  property,  or  tlie  intending 
lender  on  the  security  thiMcof,  with  satisfactory  evidence  that  no  undis- 
charged incumbrances  or  diligences  ajjpear  on  record  affecting  the  seller's, 
superior's,  or  borrower's  title  other  than  such,  if  any,  as  have  been  disclosed 
by  the  seller,  superior,  or  borrower,  and  that  no  prior  recorded  rights  are  in 
e.Kistence  by  which  tlie  riglit  wliicli  the  intending  purchaser,  feuar,  or  lender 
proposes  to  acquire  would  be  liable  to  be  defeated. 

II.  DuTiE.s  OF  Agents  in  the  Matter. 

In  the  absence  of  any  conventional  arrangement  to  tlie  contrary,  the 
seller  of  a  heritable  ])roperty  (the  word  "  seller  "  being  taken,  for  the  purpose 
of  this  article,  to  include  also  a  superior  feuing  out  his  lands,  or  a  i)roprietor 
borrowing  on  the  security  thereof,  and  the  word  "  purchaser"  to  include  also 
a  feuar  or  lender)  is  l)Ound  to  produce  a  prescriptive  search  showing  the 
record  to  be  clear  within  the  period  covered  by  it  of  all  incumbrances 
affecting  the  property  otiier  than  such,  if  any,  as  he  may  have  himself 
disclosed;  ancl  it  is  the  duty  of  the  ])iurchaser's  agent  to  see  that  such  a 
search  is  produced  and  is  in  onler.  Should  the  search  reveal  any  undis- 
charged incumbrances,  the  seller  must  purge  the  record  of  them,  and  the 


no  SEARCHES;  SEARCH  FOE  IXCUMBEANCES 

price  may  be  retained  until  tliis  is  done  {Drylurgli,  24  E.  1 ;  Christie,  25 
E.  824 ;  Bell,  Led.,  3rd  ed.,  pp.  712,  1179  ;  Menzies,  Led.,  3rd  ed.,pp.  886-7  ; 
Duff,  Feudal  Conveyancing,  p.  186).  On  the  other  hand,  should  there  be 
un  ao-reement  that  the  seller  is  not  to  furnish  a  search,  this  nevertheless 
does  not  relieve  the  purchaser's  agent  from  responsibility  in  the  matter; 
in  such  a  case  he  should  obtain  a  search  at  his  client's  expense,  as  a  pro- 
tective measure,  or  should  only  omit  to  do  so  on  his  client,  after  being  fully 
informed  of  the  risk  involved,  instructing  him  specifically,  and  preferably 
in  writing,  to  dispense  with  a  search.  If  in  any  transaction  the  agent 
omits  to  obtain  a  search  without  his  client's  express  direction  to  that  effect, 
he  becomes  liable  to  his  client,  on  the  ground  of  professional  negligence, 
for  any  loss  which  may  arise  from  an  incumbrance  being  subsequently 
discovered  to  have  existed  at  the  time  of  the  transaction  which  a  search 
would  have  disclosed,  even  although  his  instructions  extended  only  to 
the  preparation  of  the  conveyance  in  his  client's  favour,  or  the  completion 
of  liis  client's  title  {Graham,  9  S.  543 ;  Fea,  24  S.  L.  E.  628 ;  Fcarn,  20  E. 
352 ;  Cooper,  21  L.  J.  N.  S.  Q  B.  292 ;  Elphinstone  and  Clark  on  Searches, 
p.  4).  A  stipulation  that  the  seller  is  not  to  be  bound  to  supply  a  search 
does  not,  of  course,  free  him  from  his  obligation  to  clear  the  record,  but 
only  frees  him  from  the  expense  of  supplying  the  search  {Christie,  cit.), 

III.  Official  and  Nox-Official  Seaeches. 

There  are  two  classes  of  searches,  viz.  (1)  those  prepared  by  official 
Government  searchers  and  (2)  those  prepared  by  professional  but  non- 
ofucial  searchers.  The  official  searchers,  four  in  number,  are  salaried  civil 
servants  appointed  under  a  Treasury  Minute  of  27th  September  1853,  and 
sec.  19  of  the  Land  Eegisters  (Scotland)  Act,  1868  ;  while  the  professional 
but  non-official  searchers  are  parties  who  have  devoted  themselves,  independ- 
ently, to  the  business  of  searching  the  records.  The  question  has  been 
raised,  but  has  not  been  judicially  decided,  whether  a  purchaser  can  insist 
upon  receiving  a  search  made  by  the  oiScial  searchers.  Professor  Bell's  view 
being  that  he  can  so  insist  {Lectures  on  Conveyancinrj,  3rd.  ed.,  p.  715).  In  a 
case,  however,  in  which  the  seller  had  undertaken  to  deliver  a  "  valid  search  " 
and  had  tendered  one  made  by  a  well-known  firm  of  non-official  searchers, 
an  opinion  was  given  by  eminent  counsel  that  the  seller  had  implemented 
his  obligation,  and  a  similar  opinion  was  given  in  1879  by  the  Eight  Hon. 
J.  B.  Balfour,  then  Lord  Advocate  (Millar  and  Bryce's  LLandhooh  of  Records, 
p.  16).  The  non-official  professional  searchers  are,  as  a  matter  of  fact, 
largely  employed,  and  it  may  be  noted  that  they  accept  responsibility  for 
the  accuracy  of  the  searches  Vv^liich  they  issue.  The  registers  are,  of  course, 
under  statute,  "  patent  to  the  lieges,"  and  luny  be  searched  by  anyone  on 
his  own  behalf  on  payment  of  the  requisite  fees ;  but  in  practice  all  searches 
are  obtained  either  from  the  official  or  from  the  non-official  searchers,  whose 
experience  renders  them  less  likely  to  make  oversights  in  carrying  out  the 
complicated  and  highly  technical  work  of  investigating  the  records.  Official 
searches,  in  the  absence  of  instructions  to  the  contrary,  are  prepared,  as 
regards  the  Property  Eegisters,  from  an  official  compilation  called  the  Search 
Sheet,  so  far  as  it  exists,  and  by  means  of  the  Minutes  and  Indexes  for  periods 
not  embraced  by  the  Search  Sheet,  while  non-official  searches,  on  the  other 
hand,  are  prepared  from  the  Minutes  and  Indexes  alone  (Treasury  Minutes 
of  6th  August  1877  and  27th  March  1881).  The  fees  for  inspection  of 
the  registers  are  regulated  under  sec.  25  of  the  Land  Eegisters  (Scotland) 
Act,  1868. 


SEAECKES;  SEAECH  EOE  IXCUMBEAXCES  111 

IV.  The  Eegisters  Seakciied. 

The  following  is  a  list  of   the  registers  available  for   the  purpose  of 
searchiug : — 

A.  The  Pr.oPERTY  Eegistees. 

I.  Tne  Feudal  Reg/stej^s. — (1)  The  General  Register  of  Sasines, 
etc.,  for  the  whole  of  Scotland,  kept  at  Edinbiu'gh,  instituted  by 
the  Statute  1617,  c.  16,  after  a  previous  attempt  to  institute  a 
satisfactory  register  on  somewhat  different  lines  had  failed. 
Tliis  register  was  terminated  at  31st  December  1808  under  the 
Laud  Eegisters  (Scotland)  Act  of  that  year. 

(2)  The  Fartieular  Beyisters  of  Sasines,  etc.,  for  the  various  districts  or 
shires  of  Scotland,  l^ept  at  a  town  in  each  district  or  shire.  These 
registers  were  instituted,  along  with  the  General  Ecgister,  by  the 
Statute  1617,  c.  16.  Under  sec.  8  of  the  Land  Eegisters  (Scotland) 
Act,  1868,  the  21  Particular  Eegisters  then  in  existence  were 
brought  to  a  close  at  various  dates  between  6th  February  1869 
and  31st  December  1871.     (See  table  appended  to  the  article  on 

:  Eegisteation.)      They  all   now  lie   in   H.M.   General  Eegister 
House,  Edinburgh. 

(3)  The  Current  General  Bejister  of  Sasines,  instituted  by  the  Land 
E'.\gisters  (Scotland)  Act,  1868,  and  commencing  on  1st  January 
1869.  It  comprises  a  separate  division  for  each  county,  the 
stewartry  of  Kirkcudbright  and  the  barony  and  regality  of  Glasgow 
as  defined  by  the  Statute  34  &  35  Vict.  c.  68,  forming  each  a 
separate  registration  county,  and  the  counties  of  Orkney  and 
Shetland,  after  the  passing  of  the  Eegi^tration  of  Certain  Writs 
(Scotland)  Act,  1891,  having  a  division  between  them. 

II.  T//E  Current  Burgh  Registers  of  Sasines  for  lands 
formerly  held  under  the  now  abolished  burgage  tenure.  These 
registers  were  instituted  by  the  Act  1081,  c.  11  (see  also  A.  S., 
22nd  February  1081),  and  exist  in  O-l  out  of  the  72  royal 
burghs  in  Scotland  (the  recently  created  royal  burgh  of 
Coatbridge  not  being  included  in  this  number) ;  they  are  kept 
by  the  respective  town  clerks. 
III.  The  Current  Register  of  Booking  for  lands  in  Paisley  held 
by  this  peculiar  tenure,  and  kept  by  the  town  clerk  of  I'aisley. 
The  origin  of  this  system  is  very  obscure,  but  is  said  to 
bo  traceable  to  the  period  when  the  lands  on  wliich  the  town 
is  built  belonged  to  the  ancient  monastery  of  Paisley  (see 
Chalmers  v.  The  Marjisiratcs  of  Faisley,  7  S.  718). 
B.  The  Person.vl  Eegistee.s. 

J.  77//:  Register  OF  Abbreviates  o/- /I z^/f/z^/c-.iz/OiV^,  established 
by  tlie  Statute  1072,  c.  19,  superseding  the  previous  Ecgister  of 
Apprisings  or  Comprisings  (see  1061,  c.  31).  Ey  sec.  17  of  the 
Land  Eegisters  (Scotland)  Act,  1868,  tliis  register  was  conjoined 
with  tlie  General  Ecgister  of  Inhibitions  to  form  the  current 
combined  Eegister  of  Inhibitions  and  Adjudications. 

II.  The  Inhibition  Registers,  established  by  the  Statute  1581, 

c.  119  (sec  also  1597,  cc.  268  and  269  ;  1600,  c.  13  ;  and  1072,  c.  10, 
s.  32),  viz:— 

(1)  The  General  Bcfjistcr  of  Inhibitions  and  Interdictions,  kept  at 
Edinburgli,  for  the  whole  of  Scotland. 

(2)  TJlc  Barlicidar  Brr/istcrs  of  Inhibitions  and  Interdictions  for  the 


112  SEAECHES;  SEAECH  FOE  INCUMBEAKCES 

varioiTS   counties   of    Scotland,  kept   at  the   respective   county 
towns. 

These  registers  ceased  to  form  a  separate  system  on  31st 
December  1868,  wlien  the  Particular  Eegisters  were  abolished, 
and  the  General  Eegister  was  conjoined  with  the  Eegister  of 
Abbreviates  of  Adjudications  to  form 
III.  The  Current  combined  Register  of  Inhibitions  and 
Adjudications,  commencing  on  1st  January  1869,  in  which 
are  registrable  all  diligences,  executions,  and  other  writings 
formerly  a^jpropriate  to  the  registers  enumerated  under  I.  and  II. 
The  two  following  registers  are  also  available  : — 

I,  The  Current  Register  of  Tailzies  or  Entails,  instituted 
by  the  Statute  1685,  c.  22. 
II.  The  Register  of  Interruptions  of  Prescriptions,  estab- 
lished  by  the   Statute  1696,  c.  19,  for  the  publication  of  all 
summonses  and  executions  thereof  which  should  be  made  use  of 
for  interruption  of  prescription  of  real  rights,  and  all  instruments 
of  interruption.     By  sec.  15  of  the  Land  Eegisters  (Scotland)  Act, 
1868,  this  register  was  merged  in  the  General  Eegister  of  Sasines. 
In  addition  to  the  registers  themselves,  there  exist  the  following  aids 
and  materials  at  the  disposal  of  the  public  for  facilitating  the  prosecution  of 
searches  and  ensuring  their  completeness  : — 

I.  In  the  case  of  the  Feudal  Eegisters  there  are,  for  each  county : — 

(1)  A  printed  Index  of  Persons  from  1781  to  date,  containing  the 
names  of  the  granters  and  grantees  of  all  recorded  writs  (see 
1  &  2  Geo.  IV.  c.  38,  s.  27 ;  A.  S.,  10th  July  1811,  No.  II.). 

(2)  A  printed  Index  of  Places  from  1781  to  1830,  and  from  1871  to 
date,  giving  the  names  of  the  subjects  affected  by  the  recorded 
writs. 

(3)  A  manuscript  INIinute  Book  of  all  writs  recorded  down  to  31st 
December  1871  (see  1672,  c.  16,  s.  32 ;  A.  S.,  15th  July  1692  ; 
1693,  c.  14;  A.  S.,  10th  July  1811,  No.  II.). 

(4)  A  printed  Book  of  Abridgments  from  1781  to  31st  December 
1871. 

(5)  A  printed  Minute  Book  from  1st  January  1872  to  date. 

Note. — Prior  to  the  passing  of  the  Land  Eegisters  Act  of 
1868,  the  entries  made  in  the  jNIS.  Minute  Book  differed 
from  those  in  the  printed  Abridgment  Book,  which  latter 
were  prepared  separately  and  gave  rather  fuller  information 
than  the  Minutes.  The  Minutes,  however,  as  now  framed, 
answer  all  the  purposes  of  the  former  Abridgments,  and  it  is 
accordingly  the  Minute  Book  itself  that  is  now  printed.  See 
the  Land  Eegisters  Act  of  1868,  s.  9. 

(6)  A  Presentment  Book,  in  which  is  entered  a  short  memorandum 
of  every  deed  as  it  is  handed  in  for  registration. 

II.  In  the  case  of  the  Burgh  Eegisters,  IMinute  Books  are  enjoined  by 
statute  to  be  kept  (1681,  c.  11 ;  A.  S.,  10th  July  1811,  No.  II.). 
Indexes  exist  for  some  of  the  registers. 
III.  In  the  case  of  the  Personal  Eegisters  there  are : — 

(1)  A  manuscript  Minute  Book  (see  1672,  c.  16,  s.  32;  1693,  c.  14; 
A.  S.,  10th  July  1811,  Nos.  III.  and  IV.). 

(2)  A  corresponding  manuscript  Index  from  1781  to  date,  only 
partly  alphabetical. 

(3)  A  printed  Minute  Book  of  the  current  combined  Eegister  of 


SEAECHES;  SEAECH  FOE  INCUMBEAXCES  113 

Inhibitions  and  Adjudications  from  1881  to  date  (see  the  Laud 
Eegisters  Act,  1868,  s.  17),  wliich  is,  however,  of  little  practical 
use,  as  the  "  markings "  which  are  used  to  indicate  the  recall, 
restriction,  or  discharge  of  diligences  are  only  entered  in  the 
manuscript  Minute  Book.  This  is  Hkely  to  be  reformed  shortly 
by  the  abolition  of  "  markings "  and  the  substitution  of  brief 
chronological  minutes.  There  is  also  a  corresponding  printed 
Index. 
The  writs  awaiting  minuting  and  engrossment  are  also  in  all  cases  avail- 
able for  examination. 

There  is,  further,  a  compilation,  at  the  disposal  of  the  official  searchers 
only,  known  as  the  Search  Sheet,  with  its  relative  Indexes  of  Persons  and 
Places,  which  has  been  the  subject  of  considerable  controversy.  It  is  an 
application  to  land  transactions  of  the  ledger  system  employed  in  ordinary 
business  affairs ;  a  separate  folio  is  set  apart  for  each  separate  estate,  in 
which  short  entries  are  made  of  all  writs  affecting  that  estate  as  they  are 
recorded  in  the  Sasine  Eegister,  the  object  being  to  show  at  a  glance  the 
precise  history  and  present  position  upon  record  of  each  estate,  and  thereby 
to  facilitate  searching.  The  entries  made  in  the  Search  Sheet  are  not 
transcriptions  of  the  Minutes,  but  are  shorter  memoranda.  This  system  was 
first  suggested  in  1863,  and  experimentally  introduced  in  1871 ;  it  was 
extended  to  the  whole  Sasine  Eegisters  between  1874  and  1876.  The 
Search  Sheet  is  still  more  or  less  upon  its  trial,  but  the  system  is  said  to 
prove  sufficiently  satisfactory  in  its  working,  and  to  be  capable  of  surmount- 
ing the  obstacles  which  the  peculiarities  of  Scots  feudalism  might  seem  to 
place  in  its  way.  A  very  full  discussion  of  its  merits  and  defects,  as  well 
as  much  other  valuable  information  regarding  the  registers  in  general,  is  to 
be  found  in  the  Eeport  of  the  Committee  appointed  by  the  Secretary  for 
Scotland  on  31st  January  1896  to  incjuire  into  the  present  system  of  Land 
Eegistration  in  Scotland,  issued  as  a  Blue  Book  in  March  1898.  (See  also, 
as  to  tlie  practical  working  of  the  system  of  registration,  the  Eeport  of  the 
Commissioners  on  the  Public  Eecords,  1800-1819,  and  the  Extract  from  the 
Eeport  of  tlie  Departmental  Committee  appointed  by  the  Treasury  to 
inquire  into  the  Eegister  House  Departments  in  Edinburgh  relating  to  the 
system  of  Eegistration  and  Searching  in  the  Eegister  of  Sasines;  Parlia- 
mentary Papers,  1882.) 

V.  The  Method  of  SEAiiciii>;G. 

A  search  is  set  about  in  ordinary  practice,  in  the  case  of  the  Propertv 
Eegisters,  by  looking  up  in  the  first  place  the  name  of  the  last-registeied 
proprietor  of  the  subjects  in  question  in  the  Index  of  Persons  for  the  county 
in  wliich  the  lands  are  situated;  there  tlie  numbers  of  all  entries  relating  to 
him  which  appear  in  the  printed  Abridgment  or  Minute  Books  arc  to  be 
found.  These  numbers  arc  next  turned  up,  and  those  of  the  entries  which 
iffect  the  particular  subjects  in  question  are  selected  and  transcribed  into 
tlie  certificate  of  search.  Tlie  Index  of  Places  may  be  employed,  where  it 
exists,  as  a  guide  and  as  a  check  in  searching.  The  names  of  all  the  previous 
proprietors  can  be  obtained  from  an  examination  of  the  Abridgment  or 
Minute  Books,  and  they  are  searched  against  in  turn,  so  far  as  necessary,  in 
Hiiiiilar  fashion.  The  registers  themselves,  in  wliich  the  deeds  are  recorded 
ad  lorujum,  are  only  referred  to  in  very  rare  cases.  The  I'resonlment  I'.ock 
is  of  cour.se  down  to  date  and  ahead  of  the  Minute  Book,  but  it  is  not  often 
referred  to,  owing  to  the  brevity  and  incompleteness  of  the  particulars  given 
in  it ;  nor  arc  the  writs  awaiting  minuting  and  engrossment  gone  over,  except 

3.  E.— VOL.  XI.  8 


114  SEAECHES;  SEAECH  FOE  INCUMLEANCES 

in  very  special  circumstances.  The  Minute  Book  is  usually  bebiucl  the 
Presentment  Book  by  from  ten  days  to  six  weeks,  according  to  the  number 
of  writs  presented,  the  greatest  pressure  being  of  course  at  the  Whitsunday 
and  Martinmas  terms.  Again,  the  annual  printed  Indexes  of  Persons  are 
necessarily  not  published  up  to  date ;  to  obviate  the  inconvenience  thence 
arising,  the  non-ofhcial  searchers  frame  a  current  index  for  their  own  use 
from  the  printed  Minutes  as  they  are  issued.  It  is  expected,  however,  that 
access  to  the  current  manuscript  Index  compiled  by  the  Eegister  House 
othcials  will  before  long  be  granted  to  the  public.  The  official  searchers, 
in  employing  the  Search  Sheet,  reach  the  appropriate  folio  by  the  aid  of  its 
Indexes  of  Persons  and  Places,  and  thence  obtain  references  to  the  Minutes, 
which  must  be  transcribed  into  the  certificate  of  search. 

In  the  case  of  the  Personal  Eegisters  the  method  of  searching  is  similar 
to  that  pursued  in  the  case  of  the  Property  Eegisters :  the  parties  to  be 
searched  against  are  looked  up  in  the  Indexes,  and  the  corresponding  entries 
in  the  Manuscript  Minute  Book  transcribed. 

YI.  The  Pepjod  of  Search. 

The  period  over  which  a  prescriptive  search  must  extend  depends  upon 
the  laws  of  prescription  applicable  to  the  various  classes  of  writs  appearing 
in  the  different  registers.     As  all  the  reiiisters  contain  more  than  one  class 

O  ... 

of  writs,  it  is  clear  that  the  period  of  a  prescriptive  search  in  each  register 
must  be  determined  by  that  class  of  writs  appearing  in  it  whose  term  of 
prescription  is  the  longest.  A  short  examination  of  the  writs  recorded  in 
the  various  registers,  and  of  the  laws  of  prescription  respectively  applicable 
to  them,  is  accordingly  necessary  in  order  to  the  deduction  of  the  form  of 
a  complete  prescriptive  search. 

I.  The  Propekty  Eegisters. — In  these  registers  are  recorded  not  only 
all  property  writs,  such  as  feu-charters,  dispositions,  notarial  instruments, 
and  the  like,  but  also  writs  constituting  real  burdens  and  incumbrances, 
such  as  bonds  and  dispositions  in  security,  with  relative  deeds  of  restriction 
and  discharge.  The  shortening  by  the  Conveyancing  Act  of  1874  of  the  period 
of  positive  prescription  has  not  had  the  effect  of  reducing  the  extent  of  a 
prescriptive  search  in  these  registers,  for  the  reason  that  while  it  secures  a 
party  who  has  possessed  an  estate  in  land  on  an  ex  facie  valid  irredeemable 
recorded  title  for  the  space  of  twenty  years  (or,  where  minority  or  legal 
disability  can  be  pleaded,  thirty  years),  continually  and  together,  peaceably 
and  without  lawful  interruption,  against  eviction  by  any  claimant  founding 
on  a  prior  right,  yet  it  does  not  secure  him  against  burdens  and  incum- 
brances affecting  his  property  which  date  from  any  time  within  the  last 
forty  years,  such  incumbrances  being  still  only  cut  down  by  the  long 
negative  prescription  of  forty  years  under  the  Statute  1G17,  c.  12  {Brodie, 
11  E.  925).  Thus  if  property  writs  alone  appeared  in  the  Sasine  Eegisters, 
a  twenty  years'  search  in  them  would  be  sufficient,  for  such  a  search  would 
disclose  the  whole  prescriptive  progress  (unless,  of  course,  it  were  necessary, 
as  indeed  it  generally  is,  to  go  somewhat  further  back  in  order  to  reach  the 
first  writ  forming  the  foundation  of  the  prescriptive  progress) ;  but  as  incum- 
brances are  also  recorded  in  the  Sasine  Eegisters,  and  as  it  is  precisely 
against  these  that  a  purchaser  or  lender  chiefly  desires  to  be  safeguarded, 
it  follows  that  the  search  in  the  Property  Eegisters  must  extend  back 
for  forty  years  from  the  date  at  which  the  proposed  transaction  is  to  be 
closed. 

II.  The  Persoxal  Eegisters. — The  view  now  generally  accepted  as  to 


SEAECHES;  SEAECH  FOE  INCUMBEAXCES  115 

the  period  over  which  a  prescriptive  search  in  the  Personal  Eegisters  must 
extend  is  arrived  at  by  combining  the  effect  of  the  shortened  positive  pre- 
scription under  the  Conveyancing  Act  of  1874  with  the  rules  of  prescription 
applicable  to  the  various  diligences  which  appear  in  these  registers.  The 
writs  there  recorded  are  chiefly  as  follows  : — 

(1)  In    the    now    superseded    General    and    Particular    Eegisters    of 

Inhibitions : — 

(a)  Inhibitions  proper,  with  Eestrictions  and  Discharges  thereof. 

(b)  Interdictions  and  Discharges  thereof. 

(c)  Abbreviates  of  Petitions  for  Sequestration,  with  Deliverances 

thereon,  Interlocutors  recalling  Sequestrations,  Judgments 
declaring  Sequestrations  to  be  at  an  end,  Abbreviates  of 
Petitions  by  Trustees  in  sequestrations  of  estates  of 
deceased  persons  whose  successors  have  made  up  a  title  to 
their  heritable  estate,  for  transference  of  such  estate,  with 
DeKverances  thereon,  and  Abbreviates  of  Bankrupts' 
Discharges. 

(2)  In  the  now  superseded  Eegister  of  Abbreviates  of  Adjudications : — 

(a)  Abbreviates  of  Adjudications  proper  and  Discharges  thereof. 

(6)  Abbreviates  of  the  Confirmations  of  Trustees  in  Sequestrations, 
Abbreviates  of  Adjudications  in  favour  of  Trustees  in 
Sequestrations,  from  successors  who  have  made  up  a  title 
to  the  heritable  estate  of  a  deceased  person  whose  estates 
have  been  sequestrated,  and  Abbreviates  of  Bankrupts' 
Discharges. 

(3)  In  the  current  combined  Eegister  of  Inhibitions  and  Adjudications : — 

(a)  All  writs  enumerated  under  (1)  and  (2). 
(6)  Notices  of  Litigiosity,  Discharges  thereof,  and  Extract  Decrees 
of  Absolvitor. 

(c)  Notices  of  Inliibitions 

(d)  Memoranda  of  Eenewals  of  Inhibitions. 

The  considerations  to  be  noted,  from  the  searcher's  point  of  view,  with 
regard  to  the  diligences  just  enumerated  may  here  be  summarised. 

I.  Inliihitions. — Inliiljitions  used  formerly  to  take  effect  not  from  the 
date  of  their  registration,  but  from  the  date  of  their  execution  against  the 
lieges  by  publication  at  the  market  cross  of  the  head  burgh  of  the  juris- 
diction of  the  debtor's  domicile,  or  if  the  debtor  were  furth  of  Scotland,  at 
tlie  head  burgh  of  his  domicile,  or  at  the  market  cross  of  Edinburgh  and  pier 
or  shore  of  Leith  (suljsequently  at  the  oilice  of  the  Keeper  of  Edictal 
Citations).  As  registration  did  not  require  to  follow  on  this  publication  till 
forty  days  thereafter,  there  M-as  thus  an  interval  of  forty  days  during  which 
an  elfectivc  inhibition  might  be  in  existence  without  an  intending  purchaser 
of  the  subjects  affected  having  any  warning  thereof  from  the  record 
{CruickshanJcs,  1G7G,  Mor.  8P>9:^)).  The  inconvenient  but  sole  protection 
against  this  contingency  (apart  from  a  retention  of  the  price  for  forty  days) 
consisted  in  making  a  search  in  the  Signet  Oflicc,  througli  which  all  letters 
of  inhibition  pass, — such  letters  being  the  only  form  in  which  inhibitions 
were  obtainable  prior  to  loth  Octoljcr  1SG8, — for  a  year  and  forty  days  prior 
to  the  close  of  the  proposed  transaction,  seeing  that  the  warrant  to  charge 
was  good  for  a  year,  and  the  letters  might  not  have  l)ccn  executed  till  close 
on  the  e.Npiry  of  the  year.  All  necessity  for  searching  the  Signet  Oilice  for 
inhibitions  was  done  away  with  by  sec.  155  of  the  Titles  to  Land  Consolida- 
tion (Scotland)  Act,  18G8,  which  provides  that  no  inhibition  shall  take  effect 
except  from  the  date  of  its  registration,  or  from  the  date  of  the  registration 


116  SEAECHES;  SEAECH  FOE  INCUMBEANCES 

of  a  notice  thereof,  provided  the  executed  inhibition  be  itself  recorded  within 
twenty-one  days  thereafter. 

Again,  whereas  formerly  inhibitions  affected  acquircnda  as  well  as 
acquisita,  sec.  157  of  the  same  Act  provides  that  no  inhibition  shall  affect 
acquirenda  after  the  date  of  recording  it  or  a  notice  thereof,  unless  the  pro- 
perty were  destined  to  the  party  inhibited  under  an  indefeasible  title  at  the 
date  of  recording  the  inhibition  or  notice  thereof.  In  the  general  case  it 
is  thus  unnecessary  to  search  lor  inhibitions  against  a  party  prior  to  the  date 
of  his  acquiring  the  subjects  in  question.  Lastly,  sec.  42  of  the  Conveyanc- 
ing (Scotland)  Act,  1874,  enacted  that  all  inhibitions  should  prescribe  after 
the  lapse  of  five  years  from  the  date  of  their  taking  effect,  unless  renewed 
within  that  period  by  registration  of  a  minute  of  renewal.  The  result  is 
that  a  search  for  inhibitions  alone  need  not  extend  back  for  a  longer  period 
than  five  years  prior  to  the  date  when  the  proposed  transaction  is  to  be 
closed,  but  this  five  years'  search  must  be  made  against  all  the  proprietors 
within  the  last  twenty  years,  for  inhibitions  might  still  be  extant  and  plead- 
able against  such  proprietors  through  having  been  renewed  by  minutes  of 
renewal  from  time  to  time.  (See  Campbell  on  Citation  and  Diligence,  pp.  297 
seq. ;  Begg,  Conveyancing  Code,  pp.  284  seq.,  387 ;  Graham  Stewart  on 
Diligence,  pp.  538-41,  574,  575.) 

Interdictions. — In  the  case  of  interdictions,  as  in  that  of  inhibitions,  there 
might  formerly  be  an  interval  of  forty  days  between  publication  and  regis- 
tration, during  which  an  intending  purchaser  could  get  no  warning  from  the 
records  of  the  existence  of  this  impediment.  Since  1st  January  1869,  how- 
ever, interdictions  are  published  by  being  registered  in  the  Eegister  of 
Inhibitions  and  Adjudications  (the  Land  Eegisters  Act,  1868,  s.  16). 
Interdictions  are  not  sul)ject  to  the  quinquennial  prescription  applicable  to 
inhibitions,  and  a  forty  years'  search  for  them  is  necessary.  (See  Bell, 
Lectures,  pp.  140-2.) 

Litigiosity. — Prior  to  1st  January  1869  no  notice  appeared  on  record  of 
this  serious  barrier  to  a  valid  disposition.  In  the  case  of  an  action  of  adjudi- 
cation, litigiosity  affected  the  lands  in  question  from  the  date  of  citation 
{Creditors  of  Mcnzies,  1682,  Mor.  8376) ;  in  the  case  of  an  action  of  declarator 
or  reduction,  litigiosity  probably  arose  from  the  date  of  calling  the  action 
in  Court.  In  either  case,  during  the  whole  course  of  such  actions  the 
lands  affected  were  rendered  litigious,  and  no  indication  of  the  dependence 
of  the  action  was  given  on  record.  This  unsatisfactory  state  of  matters  was 
brought  to  a  close  by  sec.  159  of  the  Titles  to  Land  Consolidation  (Scotland) 
Act,  1868,  which  introduced  the  new  form  of  a  notice  of  litigiosity,  and 
provided  that  such  a  notice  must  be  registered,  in  the  case  of  actions  of 
reduction,  in  the  Eegister  of  Inhibitions,  and  in  the  case  of  actions  of 
adjudication,  or  adjudication  and  constitution  combined,  in  the  Eegister  of 
Abbreviates  of  Adjudications,  in  order  to  render  the  lands  in  question 
litigious.  The  effect  of  this  provision,  together  with  that  of  sec.  155  of  the 
same  Act,  which  provides  for  the  proper  registration  of  inhibitions,  is  that, 
since  1st  January  1869,  litigiosity,  whether  arising  from  diligence  or  from 
action,  can  no  longer  affect  lands  without  intimation  thereof  appearing  on 
record.  It  has  been  questioned  whether  the  quinquennial  prescription  is 
applicable  to  notices  of  litigiosity ;  the  better  opinion  is  that  it  is  not 
applicable  to  them,  and  that  such  a  notice  can  be  cut  down  only  by  the 
running  of  the  positive  prescription  (see  Begg,  Conveyancing  Code,  p.  387, 
marginal  note). 

Adjudications. — When  lands  have  been  adjudged,  the  decree  of  adjudica- 
tion is  made  public  by  the  recording  within  sixty  days  of  an  abbreviate 


SEAECHES;  SEAECH  FOE  INCUMBEANCES  117 

thereof  in  the  Eegister  of  Abbreviates  of  Adjudications,  or  by  the  creditor 
taking  iufeftuient  on  his  decree.  The  litigiosiiy  caused  by  the  raising  of  an 
action  of  adjudication  subsists  for  a  reasonable  time  after  decree  in  the 
creditor's  favour,  in  order  to  protect  him  until  his  right  is  made  public  ;  but 
if  the  right  is  not  made  public  within  a  reasonable  time,  the  litigiosity 
expires,  and  the  voluntary  deeds  of  the  debtor  receive  effect  (Duff,  Feudal 
Conveyancing,  p.  184;  Crraham  Stewart  on  Diligence,  p.  619).  Under  the 
old  law  a  proposing  purchaser  had,  of  course,  no  warning  of  the  existence 
of  a  valid  but  still  unpublished  decree  of  adjudication,  any  more  than  he 
had  of  the  litigiosity  occasioned  by  the  raising  of  the  action  ;  but  he  is  now 
protected  by  the  registration  of  the  notice  of  litigiosity,  which  indicates  to 
him  that  an  action  of  adjudication  has  been  raised,  and  puts  him  on  his 
inquiry  as  to  its  subsequent  course.  When  not  followed  by  possession,  an 
adjudication,  even  although  infeftment  has  been  taken  upon  it,  is  extinguished 
by  the  long  negative  prescription  {Anderson,  1788,  Mor.  1067G;  Graham 
Stewart  on  Diligence,  p.  631 ;  see,  however,  Mitchcirs  Trs.,  1827,  6 
S.  125). 

Seqitcstrcition. — The  first  writ  appearing  on  record  in  the  process  of  a 
sequestration  is  the  abbreviate  of  the  petition  for  sequestration  and 
deliverance  thereon,  which,  when  recorded,  has  the  effect  of  an  inhibition 
and  citation  in  an  adjudication  of  the  estate  of  the  debtor  at  the  instance 
of  the  creditors  afterwards  ranked  on  the  estate.  This  abbreviate  must  be 
presented  for  registration  in  the  Eegister  of  Inhibitions  before  the  expiration 
of  the  second  lawful  day  after  the  first  deliverance,  if  given  by  the  Lord 
Ordinary,  or  presented  or  transmitted  by  post  for  registration  before  the 
exph-ation  of  the  second  lawful  day  after  the  first  deliverance,  if  given  by 
the  Sheriff.  Immediate  warning  of  a  sequestration  is  thus  given  on  record 
to  the  lieges.  If  the  abbreviate  be  not  so  recorded,  it  has  no  effect  as  an 
inhibition  or  citation.  The  abbreviate  of  the  confirmation  declaring  th& 
transference  of  the  debtor's  property  to  the  trustee  must  be  recorded  in  the 
Eegister  of  Adjudications  within  twenty-one  days  of  its  being  granted.  If 
an  error  be  made  through  not  recording  an  abbreviate  of  the  petition  or  of 
the  confirmation  timeously,  the  Court  may,  on  petition,  authorise  subsequent 
registration,  but  such  warrant  is  only  granted  periculo  23ctentis  and  reserving 
tlie  rights  of  third  parties  (see  Gou'ly  on  BanlTHptc!/,  2nd  ed.,  p.  157). 
A  sequestration  will  subsist  fur  forty  years,  unless  it  be  recalled  or  the 
bankrupt  be  discharged  before  the  expiry  of  that  time. 

It  will  have  been  observed  from  the  foregoing  observations,  tliat  in  each 
of  the  Personal  Eegisters  tliere  are  writs  recorded  which  are  only  elided  by 
the  long  n"gative  prescription  of  forty  years  ;  it  tlius  fullows  that  the  search 
in  the  Personal  Eegisters  must  begin  at  a  date  forty  years  prior  to  the  date 
of  closing  the  proposed  transaction.  But  the  effect  of  the  shortening  to 
twenty  yars  of  the  period  of  positive  prescription  by  the  Conveyancing 
Act  of  1874  is  to  render  it  unnecessary  to  search  against  any  proprietor  of 
earlier  date  than  the  proprietor  who  held  the  subjects  twenty  years  ago.  In 
other  words,  it  is  unnecessary  to  search  against  any  ])roprietor  of  earlier 
date  than  the  proprietor  with  whom  the  )»rescri})tivc  ]irogress  l)tgins.  The 
reason  of  this  is  that  any  action  founded  on  a  still  uiq)rescribed  diligence 
affecting  any  earlier  proi»vietor  would  1)0  sudiciently  met  by  the  production 
of  a  twenty  years' prescriptive  title  and  proof  of  (he  necessary  possession 
following  thereon  ;  wliih',  on  the  otlier  liand,  the  production  of  an  unin'e- 
scribed  diligence  affecting  any  of  the  pi-oprietors  vifhin  the  presci'i])tive 
period  would  be  effectual  to  cut  down  the  title.  The  result  is  that  it  is 
sufficient  to  search  in  the  Personal  Eegisters  against  all  the  proprietors  who 


118  SEAECHES;  SEAKCH  FOR  INCUMBRANCES 

have  held  the  subjects  during  the  last  twenty  years,  beginning  the  search 
against  each  of  such  proprietors  at  a  date  forty  years  prior  to  the  date  of 
the  closing  of  the  proposed  transaction,  and  terminating  the  search  against 
each  at  the  date  on  which  he  was  divested  in  favour  of  his  successor  in 
the  title.  Of  course,  if  any  such  proprietor  was  born  less  than  forty  years 
ago,  the  search  against  him  should  only  be  from  the  date  of  his  birth. 

A  record  of  sequestration  proceedings  prior  to  1st  January  1869  will,  if  the 
proceedings  have  been  duly  carried  through,  appear  both  in  the  old  Register 
of  Abbreviates  of  Adjudications  and  in  the  old  Register  of  Inhibitions.  It 
has  accordingly  been  the  practice  with  some  conveyancers  to  search  for 
such  sequestrations  only  in  the  old  Register  of  Inhibitions,  in  which 
appeared  the  first  writ  recorded  in  the  proceedings.  If  this  course  be 
adopted,  there  only  remain  adjudications  proper  to  be  searched  for  in  the 
old  Register  of  Abbreviates  of  Adjudications.  But  an  adjudication  has 
no  effect  unless  brought  against  a  proprietor  during  the  period  of  his 
proprietorship,  and  it  is  unnecessary  to  search  for  adjudications  against  any 
proprietor  before  the  date  of  his  acquisition  of  the  subjects.  Thus,  as  only 
proprietors  during  the  last  twenty  years  have  to  be  searched  against,  and  as 
the  old  Register  of  Abbreviates  of  Adjudications  was  abolished  in  1868, 
now  more  than  twenty  years  ago,  it  is  now  unnecessary,  if  the  course 
supposed  be  adopted,  to  search  that  register  at  all,  unless  the  date  of  the 
infeftment  of  the  proprietor  with  whom  the  prescriptive  progress  begins  be 
prior  to  1st  January  1869.  The  Form  of  Memorandum  of  Search  given 
below  can  be  altered  so  as  to  give  effect  to  this  view  if  desired,  by  omitting 
the  direction  to  search  the  Register  of  Abbreviates  of  Adjudications  from 
the  first  part  of  the  personal  search. 

VII.  FoKM  OF  Memokandu:\i  foe  Seaech. 

In  all  cases  the  agent  furnishes  the  searcher  with  instructions  as  to^  the 
search  which  is  to  be  made.  These  instructions  are  framed  from  the  titles 
or  inventory  of  writs,  and  are  embodied  in  what  is  termed  a  memorandum 
for  search.  An  outline  form  of  such  a  memorandum,  based  on  the  foregoing 
considerations,  is  here  given. 

Assume  the  transaction  to  be  a  sale  of  feudal  subjects  by  A.  B.  to  C.  D., 
to  be  settled  at  Martinmas  1898 ;  the  memorandum  will  run  as  follows  : — 

Memorandum  for  Search  for  Incumbrances  affecting 

All  and  Whole   [describe  the  lands  fully,  taking  description  preferahlij  from  original 
■charter,  and  carefallg  notiinj  any  alterations  in  the  description  occurring  in  the progressl. 
Search — 

I.  The  Particular  Ecgister  of  Sasines,  etc.,  for  (the  district  or  shire  in  \\\\\d\  the 
lands  are  situated). 
II.  The  General  Register  of  Sasines,  etc.,  from  11th  November  1858  to  close  of 
registers. 
Search — 

The  Division  of  the  General  Register  of  Sasines  applicable  to  (the  county  in  which 
the  lands  are  situated),  from  1st  January  1869  to  11th  November  1898  {or,  and 
better,  to  show  that  no  prejudicial  writ  has  been  recorded  between  settlement 
and  registration  of  the  disposition  to  C.  D.)  to  date  of  certificate  {i.e.  as  far  as 
the  printed  Minute  Book  has  been  brought  down  when  the  searcher  issues  his 
search),  to  include  disposition  to  C.  D. 
Search — 

I.  The  Register  of  Abbreviates  of  Adjudications, 
II.  The  Particular  Register  of  Inhibitions  for  (the  county  in  which  the  lands  are 

situated), 
III.  The  General  Register  of  Inhibitions, 

against  {take  in  list  of  successive  proprietors  during  last  twenty  years,  noting  any 


SEAECHES;  SEAECH  FOE  INCUMBEANCES  119 

alterations  in  their  names  or  designations  in  the  course  of  the  progress)  from  lltli 
November  1858  to  close  of  registers. 
Search— 

The  Register  of  Inhiljitions  and  Adjudications  from  1st  January  18G9  against 
(take  in  successivebj  each  proprietor  during  the  last  twenty  years),  to  {in  each  case 
the  respective  date  at  which  he  was  divested  in  favour  of  his  successor). 

YIII.  Miscellaneous  Observations. 

1.  The  Particular  and  General  Bcgisters. — The  necessity  for  searching 
both  the  Earticnlar  Eegister  of  Sasines,  etc.,  for  the  district  or  shire  in  which 
the  lands  are  situated  and  the  General  Ifegister  of  Sasines,  etc.,  arises  from  the 
fact  that  writs  might  be  recorded  alternatively  and  with  equal  validity  in 
either.  Similarly  with  the  Particular  and  General  Eegisters  of  Iidiibitions  ; 
but  although  when  it  was  elected  to  record  an  inhibition  in  the  Particular 
Eegister  it  was  essential,  i;i  order  to  its  being  effectual,  that  it  should  be 
registered  in  both  the  Particular  Eegister  for  the  shire  in  which  the 
proprietor  dwelt  and  made  his  residence  and  the  Particular  Eegister  for  the 
shire  in  which  the  lands  lay,  should  these  be  different,  yet  it  is  not  necessary 
in  such  cases  to  search  both  Particular  Eegisters,  seeing  that  a  search  in 
one  will  disclose  the  existence  of  any  effectual  inhibition.  Inhibitions 
registered  in  a  Particular  Eegister  only  affected  heritable  property  within 
the  shire  to  which  that  Particular  Eegister  was  applicable. 

2.  Future  Simplification  of  Form  ^Search. — From  and  after  1st  January 
1909  the  form  given  above  will  be  considerably  simplified,  as  a  personal 
searcli  will  then  fall  to  be  made  only  in  the  current  combined  Eegister  of 
Inhibitions  and  Adjudications,  which  will  by  that  time  have  been  forty 
years  in  existence,  and  by  1st  January  1912  no  property  search  will  require 
to  be  made  in  any  register  save  the  cuirent  Divisional  Eegister,  the  last 
Particular  Eegister  having  come  to  a  close  on  31st  December  1871. 

3.  Bur(jarie  and  Booking. — The  Burgh  Eegisters  are  in  general  searched 
!)y  the  town  clerks  who  have  charge  of  them,  and  a  search  for  forty  3'ears  is 
usually  made.  The  town  clerks  are,  however,  under  no  obligation  to  act  as 
Bcarchers,  and  in  some  cases  refuse  to  undertake  the  work,  which  must  then 
be  done  by  the  party  himself  or  his  agent.  The  search  for  personal  diligences 
aflecting  proprietors  of  l)urgage  subjects  is  made  in  the  same  registers  as 
are  searched  for  diligences  affecting  feudal  proja'ielors.  The  same  remarks 
ap[»ly  to  tlie  Eegister  of  IJooking  in  Paisley,  searches  in  which  are  undertaken 
by  the  town  clerk.  Owing  to  the  diversity  of  practice  which  has  prevailed 
in  the  matter  of  the  recording  of  feu-rights  of  bui-gage  subjects,  and  of  deeds 
transmitting  such  rights,  and  to  the  and)iguity  of  the  ])rovision  on  the 
subject  contained  in  sec.  25  of  the  Conveyancing  Act  of  1874,  the  most 
prudent  course  in  all  transactions  relating  to  burgage  subjects  is  to  search 
against  them  both  in  the  Burgh  Eegister  and  in  the  Feudal  E(>gisters.  See 
article  Buiioage,  in  which  this  suliject  is  fully  discussed. 

4.  Leases. — \Vitli  regard  to  searches  against  leasehold  property,  the  title 
to  which  has  been  registered  under  the  Eegistration  of  Leases  (Scotland) 
Act,  1857,  it  is  safer  not  to  trust  to  the  direction  in  sec.  1  of  that  Act 
having  licen  olrserved,  viz.,  that  assignations,  assignations  in  security,  and 
traTislatiiins  should  be  recorded  in  the  same  register  as  that  in  v/hich  the 
original  lease  appears;  and  it  is  accordingly  ailvisaljle  to  search  both  in  the 
<»hl  Particular  Eegister  and  in  the  old  General  P^egister,  no  matter  in  which 
of  the  two  the,  original  lease  may  have  been  recorded. 

5.  Xo  Title  ri-riirdcd  u:ilki)i  Forti/  Veais. — When  a  search  extending  over 
forty  years  in  the  Sasine  Eegisters  discloses  no  property  writ  relating  to  the 


120  SEAECHES;  SEAECH  FOE  IXCUMBEANCES 

lands  ill  question,  there  having  been  no  registered  transmission  of  the 
subjects  during  that  lime,  the  search  must  of  course  be  ext-nded  back  until 
the  last  recorded  title  is  reached,  which  forms  the  foundation  of  the 
prescriptive  right. 

6.  Continuation  of  Search. — AVhere  a  search  against  the  subjects  is 
already  in  existence  but  requires  to  be  brought  down  to  date,  it  is 
returned  to  the  searcher  with  instriictions  for  its  continuation  embodied  in 
a  memorandum  for  continuation  of  search  similar  in  form  to  the  original 
memoranduni  given  above. 

7.  JS^'cLo  Feu. — In  the  case  of  a  new  estate  which  has  been  constituted 
by  the  giving  off  of  a  feu  at  any  date  within  the  last  forty  years,  the 
practice  is  to  search  against  the  new  estate  for  the  period  from  the  date  of 
its  constitution,  and  to  boiTow  the  superiority  searches  for  the  balance  of 
the  forty  years. 

8.  J.ancls  lying  in  more  than  one  County. — Writs  relating  to  lands  lying 
in  more  than  one  district  or  shire  used  formerly  to  be  recorded  either  in 
the  General  Eegister  of  Sasines,  etc.,  or  in  each  of  the  appropriate  Particular 
Eegisters,  and  in  the  case  of  such  lands  search  falls  to  be  made  in  all  these 
registers.  Since  the  passing  of  the  Land  Eegisters  (Scotland)  Act,  1868, 
writs  relating  to  such  lauds  are  recoided  at  length  in  the  division  of  the 
General  Eegister  of  Sasines  applicable  to  one  of  the  appropriate  counties 
and  by  memorandum  in  the  other  appropriate  divisions  ;  search  should  be 
made  in  the  divisions  applicable  to  all  the  different  counties  in  which  the 
lands  are  situated.  A  similar  remark  applies  to  the  case  of  inhibitions 
prior  to  1st  January  1869,  which  should  be  searched  for  in  the  Particular 
Eegisters  of  Inhibitions  applicable  to  each  of  the  counties  in  which  the 
lands  lie. 

9.  Alteration  of  County  Boundaries.  —  The  Boundary  Commissioners 
appointed  under  the  Local  Government  (Scotland)  Act,  1889,  have  very 
considerably  altered  the  boundaries  of  the  parishes  and  counties  in  Scotland, 
and  this  must  be  kept  carefully  in  view  in  ordering  searches.  (See  a 
convenient  summary  of  the  Orders  of  the  Boundary  Commissioners  in  the 
Parliament  House  Book.)  By  tlie  Eegistration  of  Certain  Writs  (Scotland) 
Act,  1891,  it  is  provided  that  the  orders  of  the  Commissioners  shall,  for  the 
purpose  of  regulating  the  registration  of  writs  in  the  appropriate  divisions 
of  the  General  Eegister  of  Sasines,  and  for  that  purpose  only,  come  into 
operation  on,  but  not  before,  loth  May  1892.  In  the  case  of  lands  which 
have,  by  the  Commissioners'  orders,  been  transferred  from  one  county  to 
another,  it  is  accordingly  necessary  to  search  in  the  register  of  the  former 
county  down  to  ir)th  May  1892,  and  in  the  register  of  the  latter  county 
since  that  date.  The  keeper  of  the  General  Eegister  has  recommended 
th.it,  to  ensure  accurate  and  valid  registration,  titles  dealing  with  subjects 
affected  by  the  new  boundaries  should  contain  a  reference  to  both  the 
former  and  the  present  county,  thus: — "formerly  in  the  county  of  A.,  and 
now  in  the  county  of  B.,"  and  it  would  be  well  that  any  parochial  alterations 
should  also  be  noted.  (St^e  Hay  Shen nan's  Boundaries  of  Counties  and 
Parishes  in  Scotland,  Introduction,  pp.  xxxv-vi).  Eeference  is  made  to  the 
Act  34  &  35  Vict.  c.  68,  defining  the  boundaries  of  the  barony  and  regality 
of  Glasgow  and  the  counties  of  Eenfrew  and  Lanark,  to  the  Inverness  and 
Elgin  I'.oundaries  Act  (33  &  34  Vict.  c.  16),  and  to  the  Act  30  &  31  Vict. 
c.  85,  declaring  the  whole  burgh  of  Galashiels  to  form  part  of  the  county 
of  Selkirk,  which  should  be  had  in  mind  when  searches  applicable  to  these 
particular  districts  are  ordered. 

10.  Trustees. — Trustees  are  of  course  only  searched  against  from  the  date 


SEARCHES;  SEAECH  FOE  INCUMBEAXCES  121 

of  their  assuming  office.  In  the  case  of  a  trustee  in  a  sequestration,  tlie 
search  should  conniience  against  him  from  the  date  of  his  act  and  warrant, 
and  in  the  case  of  a  trustee  under  a  voluntary  trust  deed  for  behoof  of 
creditors,  fioni  the  date  thereof;  in  the  case  of  trustees  under  a  mortis 
causa  trust,  the  date  of  the  commencement  of  the  trust  is  not  always 
readily  ascertainable,  and  a  convenient  practice  is  to  search  against  such 
trustees  from  the  date  of  the  registration  of  the  trust  disposition  and 
settlement  under  which  they  act.  From  the  practical  point  of  view  of  the 
searcher,  however,  it  is  not  of  consequence  when  the  search  against  the 
bankrupt  or  trustee  is  made  to  teiminate  and  the  search  against  the 
trustees  to  commence,  for  the  reason  that  tiustecs  are  always  indexed  and 
searched  against  under  the  constituent's  name,  and  the  continuity  of  the 
search  is  thus  ensured.  The  individual  trustees  need  not  be  named  in 
the  memorandum  for  search;  it  is  sufficient  to  instruct  a  search  against 
'  the  trustees  of  X."  In  the  case  of  trustees  in  sequestrations  or  under 
voluntary  trust  deeds,  the  search  against  the  bankrupt  should  be  continued 
until  the  trustee  makes  up  and  registers  his  title  or  sells  the  subjects.  This 
is  a  particular  instance  of  the  rule  that  a  party  should  be  searched  against 
so  long  as  he  remains  upon  record  as  the  last  registered  proprietor. 

11.  Lifcrcntcrs. — A  liferenter  need  not  be  searched  against  unless  he 
has  a  power  of  disposal  or  a  power  to  burden. 

12.  Married  Women. — A  married  woman  must  of  course  be  searched 
against  under  her  maiden  name  prior  to  her  marriage,  and  under  her 
married  name  thereafter.  Where  there  is  a  disposition  inter  rivus  by  a 
married  woman,  her  husband,  unless  his  right  of  administration  has  been 
excluded,  will  be  a  consenter  to  the  deed,  and  ought  also  to  be  searched 
against. 

13.  Pvpils  and  Minors. — In  the  case  of  a  disposition  of  subjects 
belonging  to  a  pupil,  both  he  and  his  tutors  will  be  searched  against, 
although  lie  himself  is  legally  incapable  of  granting  any  deed;  minors 
without  curators  will  be  themselves  searched  against,  while  in  the  case  of 
minors  with  curators,  search  will  be  made  against  both  the  minor  and  his 
curators,  wliose  consent  is  required  to  his  deee's. 

1-4.  Consentcrs. — When  any  writ  in  the  progress  is  granted  by  the 
disponer  with  the  consent  of  s<>me  other  party,  the  consenter  should  in 
general  be  searched  against  as  fully  as  the  i>rincipal  disponer,  for  the  deed 
may  be  invaliil  thi'oui^h  the  C(uisenter  not  l)eing  in  a  position  to  give  a 
valid  consent;  and  further,  it  may  tuiu  out  th;;t  the  consenter  was  in 
reality  the  true  domini/s,  and  his  consent  to  the  conveyance  the  really 
operative  part  of  the  deed. 

15.  L'undholdcrs.  —  A  full  search  must  of  course  be  made  against  a 
bondlioliler  selling  under  his  bond.  ]5ut  it  is  not  necessary  to  search 
against  the  creditors  in  any  discharged  bonds  which  may  be  among  the 
titles.  The  d(jubt  which  formerly  existed  on  this  subject  was  set  at  rest 
by  the  Act  of  Sedeiunt  of  I'Jth  February  1G8U,  which  required  the 
inhibiter  of  the  creditor  in  a  bond  and  disposition  in  security  to  make 
notarial  intini;itiou  of  the  iidiiljition  to  the  debtor  if  he  desired  to  prevent 
the  creditor  from  dis''h:nging  the  ijond  and  disencund)e)iiig  the  sulijects 
on  payment  by  iju;  debtor  of  the  amouuD  contained  in  the  bund.  An 
inliii)iLion  used  against  the  creditor  in  a  bond  and  disposition  in  security 
does  not  preclude  him  from  demanding  payment  of  tlu;  debt,  and,  on 
receiving  payment,  from  granting  an  assignation  of  the  bond  in  favour  of  a 
third  paity  at  the  request  of  the  debtor;  thus  a  search  against  the  assignor 
of  a  bonil  and  disposition  in  security  is  in  such  circumstances  unnecessary 


122  SEAECHES;  SEARCH  EOR  INCUMBRANCES 

for  the  protection  of  the  assignee.  It  might  be  different  if  the  creditor 
went  into  the  market  and  assigned  his  security  to  an  independent  purchaser, 
and  a  search  against  him  would  in  this  case  be  prudent.  (See  Mackintosh's 
Trs.,  25  R.  554,  in  which  case  the  provisions  of  tiie  Act  of  Sederunt  of  19th 
Eebruary  1G80  were  discussed.) 

16.  Ex  facie  Absolute  Disposition. — Where  a  disposition  of  lands 
ex  facie  absolute  but  really  in  security  has  been  granted  and  registered, 
M'ith  or  without  a  back-letter,  and  where  the  subjects  have  been  subse- 
quently either  reconveyed  to  the  original  proprietor  or  disponed  to  a  third 
party  by  the  ex  facie  absolute  disponee  with  consent  of  the  original 
proprietor,  or  by  the  latter  with  the  former's  consent,  search  should  be 
made  throughout  the  period  of  the  ex  facie  absolute  disponee's  tenure 
against  both  the  original  proprietor,  in  whom  the  radical  right  remained, 
and  the  ex  faxie  absolute  disponee  ;  for  although  the  original  proprietor, 
after  the  registration  of  the  ex  facie  absolute  disposition,  ceases  to  be  the 
feudal  proprietor  and  has  only  a  personal  right  to  have  the  subjects 
reconveyed  to  him  on  repayment  of  the  advances  which  he  has  received, 
still  a  purchaser  of  the  subjects,  either  from  the  original  proprietor  with 
consent  of  the  ex  facie  absolute  disponee  or  from  the  latter  with  consent  of 
the  former,  would,  it  appears,  be  entitled  to  have  the  record  cleared  of  any 
incumbrances  affecting  the  original  proprietor,  even  after  he  had  granted 
the  ex  facie  absolute  disposition.  (See  Dryhurgh,  24  R.  1,  in  which  case  the 
Lord  Ordinary  (Kincairney)  expressed  the  opinion  that  an  inhibition  might 
affect  a  heritable  right  in  the  person  of  one  who  did  not  hold  it  by 
feudalised  title.) 

17.  Entails. — There  is  no  prescriptive  limit  to  the  period  over  which 
a  search  in  the  Register  of  Entails  should  extend ;  and  if  there  is  reason  to 
suspect  the  existence  of  an  entail  affecting  the  lands  in  question,  the  search 
should  be  carried  back  so  as  to  cover  the  date  when  the  suspected  entail  is 
thouglit  to  have  been  constituted. 

18.  Interruptions  of  Prescription. — No  interruption  of  prescription, 
whether  by  summons  or  instrument,  is  pleadable  against  a  singular 
successor  unless  recorded  within  sixty  days  (formerly  in  the  Register  of 
Interruptions  of  Prescription,  now)  in  the  General  Register  of  Sasines; 
and  if  the  interruption  be  vid  facti,  an  instrument  must  be  taken  upon 
it  and  recorded  as  above  in  order  to  be  effectual  against  third  parties. 
Interruption  by  citation  requires  renewal  every  seven  years  unless 
followed  by  an  action  (see  1669,  c.  10,  and  1696,  c.  19),  The  now  abolished 
register  for  recording  writs  interrupting  prescription  is  a  very  small  one, 
and  searches  are  seldom,  if  ever,  made  in  it.  Seeing  that  it  is  now  more  than 
twenty  years  since  the  register  was  merged  in  the  Register  of  Sasines,  on 
1st  January  1869,  it  would  not  appear  to  be  any  longer  necessary  to  search 
it  at  all,  the  ordinary  search  in  the  Register  of  Sasines  providing  a  sufficient 
protection  against  such  writs. 

IX.  Incumbrances  not  disclosed  ey  a  Presceiptive  Search. 

The  security  against  the  existence  of  burdens  and  prior  rights  afforded 
to  a  purcliaser  by  the  production  of  a  prescriptive  search  is  by  no  means 
absolute.  It  is  obvious  that  it  can  give  no  higher  protection  than  is 
afforded  by  the  records  themselves  and  by  the  laws  of  prescription  on 
which  it  proceeds.  Thus  it  is  no  security  against, /rs^,  burdens  which  do 
not  or  need  not  enter  the  record  at  all ;  and,  second,  burdens  which,  although 
registered,  are  for  some  reason  outside  the  operation  of  the  ordinary  rules 


SEAECHES;  SEAECH  FOE  IXCUMBEANCES  123 

of  prescription.  Again,  there  are  burdens  which,  while  they  appear  in  the 
body  of  the  property  writs,  and  so  enter  the  register  in  which  these  writs 
are  recorded  ad  lonjum,  are  yet  not  disclosed  by  a  certificate  of  search: 
such  burdens,  for  example,  as  feu-duties,  real  burdens  constituted  incidentally 
in  dispositions  or  other  writs,  building  restrictions,  etc.,  against  which  a 
careful  examination  of  the  title  deeds  and  full  inquiry  of  the  seller's  agent 
are  the  best  safeguards.  Where  a  party,  in  disponing  a  portion  of  his  lands, 
creates  by  the  disposition  burdens  or  restrictions  over  the  lands  which  he 
retains  in  favour  of  the  lands  which  he  has  disponed,  a  search  against  the 
retained  lands  will  not  reveal  the  existence  of  tliese  burdens  or  restrictions 
affecting  them.  It  is  a  question,  however,  whether  real  burdens  can  be 
effectuallv  imposed  in  this  manner  (see  Morkr,  1895,  23  E.  67,  and  liluirhcad, 
1893,  10  S.  L.  Eev.  1G4). 

The  following  burdens  do  not  or  need  not  enter  the  record  at  all, 
viz : — 

1.  Terce  and  Courtcsi/,  which  being  measured  by  the  infeftmcnt  of  the 
husband  or  wife  respectively  at  the  date  of  his  or  her  deatli,  constitute 
burdens  exigible  as  against  a  purchaser  of  the  husband's  or  wife's  lands 
who  has  not  taken  infeftment  before  the  dissolution  of  the  marriage. 

2.  Servitudes,  both  positive  and  negative,  may  be  effectual  against  a 
singular  successor  without  appearing  on  record,  either  in  the  form  of  a 
separate  writ  or  in  the  titles  of  either  the  dominant  or  the  servient 
tenement.     See  article  Servitudes. 

3.  Leases. — Xo  warning  is  given  by  a  search  of  the  existence  of  leases, 
with  the  burdens  which  may  be  imposed  by  them,  except  in  the  case  of 
leases  recorded  under  the  Eegistration  of  Leases  (Scotland)  Act,  1857  (20  & 
21  Vict.  c.  26). 

4.  Succession  Duty.  —The  duty  imposed  by  the  Succession  Duty  Act, 
1853  (16  &  17  Vict.  c.  51),  is  declared  by  sec.  42  of  the  Act  to  be  a  first 
charge  on  the  interest  of  the  successor,  and  of  all  persons  claiming  in  liis 
right,  in  all  the  real  property  in  respect  whereof  such  duty  shall  be  assessed, 
and  is  given  a  prioiity  over  all  charges  and  interests  created  by  the 
successor.  Tlie  liability  of  a  purchaser  for  valuable  consideration  or  a 
bondholder  is  limited,  however,  in  its  duration  by  sees.  12-14  of  the  Customs 
and  Inland  Eevenue  Act,  1889  (52  Vict.  c.  7),  to  a  period  of  six  or  twelve 
years,  as  the  case  mav  be,  to  be  computed  as  directed  by  that  Act. 

5.  Estate  Buiy.—ThQ  Finance  Act,  1804  (57  &  58  Vict.  c.  30),  provides 
by  sec.  8  (4)  that  every  person  in  whom  heritable  property  is  vested  by 
alienation  or  other  derivative  title  sliall  be  accountable  for  the  estate  duty 
thereon  where  the  property  lias  passed  on  the  death  of  its  proprietor  alter 
1st  August  1894.  This  piovision  is  qualified,  however,  by  the  declaration 
in  sec.  8  (18)  that  nothing  in  sec.  8  shall  render  liable  to  or  accountable 
for  duty  a  bond  fide  purchaser  for  valuable  consideration  without  notice  ;  and 
by  sec.  9  (1),  which  declares  that  property  shall  not  be  chargeable,  as  against 
a  bond  fid e  purchaser  thereof  for  valuable  consideration  without  notice,  with 
the  estate  duty  which  is  otiierwise  to  be  a  first  chaige  on  the  ])roperty  in 
respect  of  v.hich  duty  is  h;viable.  The  limitation  of  liability  introduced 
in  tlie  case  of  succession  duty  by  sees.  12-14  of  the  Customs  and  Inland 
Kevcnue  Act,  1889,  is  also  made  applicable  to  estate  duly  by  sec.  8  (2)  of 
the  Finance  Act,  1894.  A  certificate  granted  by  the  Commissioners  under 
sec.  9  (2)  of  the  estate  duty  paid  in  respect  of  the  property  is  by  sec.  9  (3) 
declared  to  be  conclusive  evidence  that  the  amount  of  duty  named  therein 
is  a  lirst  clinrge  on  the  lands  or  other  subjects  of  icfijx'rty.  Sec.  9  (6) 
entitles  a  limited  owner  who  has  paid  estate  duty  on  a  pioperty  out  of  his 


124  SEAECHES;  SEAECH  FOE  INCUMBEANCES 

own  money  to  the  same  charge  on  the  lands  as  if  he  had  raised  the  estate 
duty  by  means  of  a  mortgage,  and  an  entirely  novel  burden  may  apparently 
be  constituted  in  this  manner ;  but  such  a  person  will  in  general,  it  is 
thought,  raise  the  money  by  an  ordinary  bond  and  disposition  in  security 
(see  Laurie,  1898,  25  E.  636).  Provision  is  made  by  sec.  11  for  the  granting 
by  the  Commissioners  of  certificates  of  discharge  of  estate  duty. 

6.  Claims  of  Ancestors  Creditors. — The  Statute  1661,  c,  24,  gives  a 
preference  to  a  deceased's  creditors  over  his  heritage  entitling  them  to 
reduce  a  conveyance,  even  although  for  onerous  consideration,  granted  by 
the  heir  to  their  prejudice  within  a  year  of  his  ancestor's  death;  and  has 
been  held  to  give  the  ancestor's  creditors  who  have  done  diligence  within 
three  years  the  right  to  defeat  a  conveyance  by  the  heir  to  one  of  his  own 
general  creditors  (see  BcUcnclcn,  1685,  2  Br.  Sup.  93,  and  McAljpine,  1885, 
12  E.  604). 

7.  Conjunction  and  Confidence. — Deeds  granted  gratuitously  by  a  party, 
to  the  prejudice  of  his  creditors,  in  favour  of  persons  standing  in  the  relation 
of  conjunction  and  confidence  to  the  disponer  are  reducible  by  the  disponer's 
creditors  under  the  Statute  1621,  c.  18;  but  they  cannot  follow  the  lands 
when  they  have  passed  onerously  to  a  lond  fide  third  party,  unless  perhaps 
the  title  show  ex  facie  the  gratuitous  character  of  the  conveyance  and  the 
relationship  of  the  parties,  so  as  to  put  the  third  party  on  his  inquiry. 

8.  Forgery. — This  ground  of  challenge  is  pleadable,  even  against  an 
onerous  hond  fide  third  party,  under  the  Statute  1617,  c.  12;  but  not  fraud 
{Forsyth,  1863,  1  M.  1054). 

9.  Minority  and  Non  valens  agere  cum  effectu. — The  running  of  prescrip- 
tion is  suspended  as  against  persons  under  these  disabilities  during  the 
periods  for  which  they  are  affected  by  them  ;  but  the  provision  in  the 
Conveyancing  Act  of  1874,  that  a  thirty  years'  prescriptive  tille  shall 
exclude  all  claims  for  deductions  under  these  heads,  greatly  reduces  the 
risk  of  such  objections  being  taken. 

10.  Jedge  and  Warrant. — Where  the  Dean  of  Guild  has  granted  authority, 
known  as  a  jedge  and  warrant,  to  a  party  having  interest  in  subjects  within 
burgh,  either  as  a  part  proprietor  thereof,  or  as  a  proprietor  with  an 
imperfect  title,  or  as  a  heritable  creditor  in  possession,  to  have  such  subjects 
repaired  on  account  of  the  ruinous  condition  into  which  they  have  fallen, 
the  expenses  so  incurred  are  declared  by  the  Dean  of  Guild  to  be  a  prefer- 
able burden  on  the  tenement,  and  the  recording  of  his  decree  in  the  Dean 
of  Guild  Court  Books  is  held  to  be  legal  notice  thereof.  A  search  in  the 
Dean  of  Guild  Court  Bo.iks  would  accordingly  reveal  the  existence  of  such 
a  burden,  but  the  risk  is  so  small  as  to  be  negligible,  especially  as  this 
procedure  by  jedge  and  warrant  is  now  practically  obsolete,  having  been 
superseded  by  the  provisions  of  the  Burgh  Police  Act,  1892,  and  "of  the 
special  Police  Acts  applicable  to  various  burghs.  [Irons'  Law  and  Practice 
of  the  Dean  of  Guild  Court,  pp.  314  scq. ;  ]\[iller"s  Edinburgh  Bean  of 
Guild  Court,  pp.  35-7]. 

11.  Real  Warrandice. — Ileal  warrandice  rights  are  not  redeemable,  and 
prescription  on  an  infeftment  in  real  warrandice  only  runs  from  the  date 
when  eviction  from  the  principal  subject  has  taken  place.  This  burden  is 
"worked  off  by  the  operation  of  the  positive  prescription  in  fortifying  the 
title  to  the  principal  subject"  (Duff,  Feudal  Conveyancing,  p.  91 ;  Durham's 
Trs.,  1800,  Mor.  16641). 

12.  Deathbed. — Challenge  or  reduction  of  deeds,  instruments,  or  writings 
ex  cajnte  lecti  was  abolished  in  1871  by  the  Act  34  &  35  Vict.  c.  81,  in  the 
case  of  all  persons  dying  after  the  passing  of  that  Act. 


SEAECH-WAEEANT  '  '  125 

The  following,  though  they  enter  the  record,  will  not  be  disclosed  by  a 
forty  years'  search,  viz  : — 

1.  Heritable  securities  registered  more  than  forty  years  ago,  but  kept 
up  within  the  period  of  the  long  negative  prescription  by  the  payment  of 
interest  or  partial  payment  of  the  principal  sum.  This  is  a  case  in  which 
prescription  may  be  interrupted  without  any  indication  of  the  interruption 
appearing  on  record. 

2.  Infeftment  on  a  decree  of  adjudication  more  than  forty  years  ago, 
followed  by  possession  for  forty  years  after  the  expiry  of  the  legal,  gives 
the  adjudger  an  absolute  right  of  property. 

[Genei-al  Authorities. — Duff,  Feudal  Conveyancing,  pp.  180  seq. ;  Bell, 
Lectures  on  Conveyancing,  3rd  ed.,  pp.  712  seq. ;  Bell  on  Titles,  2ud  ed.,  cliap.  v. ; 
The  Juridical  Styles,  vol.  i.,  5th  ed.,  pp.  489,  490  ;  Menzies,  Conveyancing,  3rd 
ed.,  pp.  885-888;  Hendry,  Manual  of  Conveyancing,  4th  ed.,  pp.  330-332  ; 
Millar  and  Bryce,  Handbook  of  Ilecords,  Edinburgh,  1885 ;  Eeport  of 
Committee  appointed  by  Secretary  for  Scotland  to  inquire  into  the  present 
system  of  Land  Eegistration  in  Scotland,  issued  as  a  Blue  Book  in  j\Iarch 
1898;  also  the  Eeport  of  the  Commissioneis  on  the  Public  Eecords, 
1800-1819,  and  Eeport  of  Eegister  House  Committee,  1882;  Elphinstone 
and  Clark  on  Searches.    See  article  Eegistration.] 


Search -War  rant. — A  search-warrant  is  the  authority  granted 
by  a  competent  magistrate  to  ofticers  of  law  to  break  open  and  search  the 
places  mentioned  in  the  warrant  in  order  to  recover  the  articles  or  docu- 
ments specified  in  the  warrant.  Authority  to  search  is  usually  asked  when 
the  warrant  to  arrest  is  applied  for,  and,  if  granted  then,  is  embodied  in  the 
warrant  to  arrest.  It  is  competent,  however,  to  crave  and  to  receive  a 
special  search- warmnt.  It  is  essential  that  a  search-warrant  should  specify 
tlie  places  which  it  is  proposed  to  search,  and  the  articles  whose  seizure  is 
desiretl.  A  warrant  to  "  break  or  force  open  all  sluit  and  lockfast  places  " 
was  held  to  be  illegal  {Webster,  1857,  2  Irv.  596).  It  is  competent  to  grant 
a  search-warrant  to  examine  the  repositories  of  a  person  charged  with  a  crime 
for  articles  or  documents  tending  to  establish  his  guilt  of  the  charge.  If 
documents  are  recovered  under  this  warrant  and  used  at  the  trial,  the  prose- 
cutor is  not  bound  to  produce  the  search-warrant  nor  to  prove  the  manner 
in  which  the  documents  were  recovered  (Forteous,  1867,  5  Irv.  456).  It 
was  held  to  be  illegal  to  grant  a  searcli-warrant  to  search  the  re]insitories  of 
persons  wiio  had  not  been  charged  willi  a  criine  "  for  written  documents,  and 
all  other  articles  tending  to  establish  guilt  or  participation  in  said  crimes," 
for  tliese  reasons:  (1)  that  no  charge  had  been  made  against  the  persons 
who.se  repositories  were  j»roposed  to  be  searched  ;  (2)  that  no  limitation  of 
kind  or  (quantity  was  placed  upon  the  documents  proposed  to  be  recovered ; 
(3)  tliat  the  result  of  such  a  search  under  such  a  warrant  would  be  that 
ordinary  sherill-oflicers  and  their  assistants  would  seize  and  examine  the 
whole  papers  of  tlio  ])erHons  wliosc  repositories  were  ordered  to  be  searched 
for  the  purpose  of  finding  traces  or  proofs  of  guilt  either  against  the  owners 
and  possessors  of  the  papers,  or  against  some  other  person  or  persons  (JJcll, 
18G5,  5  Irv.  57). 

Tlie  Prevention  of  Crime  Act  (34  &  35  Vict.  c.  112)  provides  (s.  16) 
that  any  chief  ollicer  of  j)olice  may  give  authority  to  search  for  stolen 
property,  when  the  premises  to  be  searched  (1)  arc  or  have  been  within  the 
preceiling  twelve  months  in  the  occupation  of  any  person  who  has  l)ecn 
convicted  of  reset  or  of  harbouring  thieves,  or  (2)  arc  in  the  occupation  of 


126  SEATS  IX  CHUECHES 

any  person  who  has  been  convicted  of  any  offence  involving  fraud  or  dis- 
honesty, and  punishable  by  penal  servitude  or  imprisonment ;  and  he  may 
do  so  without  specifying  any  particular  property,  if  he  has  reason  to  believe 
generally  that  the  premises  are  being  made  a  receptacle  for  stolen  goods ; 
and  any  constable,  with  such  authority  in  writing  from  the  chief  constable, 
may  enter  any  shop,  warehouse,  yard,  or  other  premises,  and  search  and 
seize  and  secure  any  property  he  may  beheve  to  have  been  stolen,  as  if  he 
had  a  search-warrant  applicable  to  the  property  seized ;  and  the  person  on 
whose  premises  the  property  is  when  seized,  or  the  person  from  whom  it 
is  taken  if  other  than  the  person  on  whose  premises  it  is,  shall,  unless 
previously  charged  with  resetting  the  same,  be  summoned  before  a  Court 
of  summary  jurisdiction  to  account  for  his  possession  of  such  property ;  and 
the  Court  may  make  such  order  as  to  the  disposal  of  the  property,  and 
may  award  such  costs,  as  the  justice  of  the  case  may  require. 

In  executing  a  search-warrant  the  officer  should  state  the  substance  of 
the  warrant.  He  should  proceed  to  break  open  doors  only  after  admission 
has  been  asked  and  refused.  The  officer  should  show  the  warrant,  if 
requested  to  do  so,  especially  i£  he  is  only  acting  as  an  officer  pro  hac 
vice,  or  is  beyond  his  ordinary  bounds. 

[Hume,  ii.  78;  Alison,  ii.  145;  Macdonald,  287;  Anderson,  Crim.  Law,  195.] 


Scats  in  Churches. — In  modern  times  no  church  would  be 
considered  suitable  for  public  worship  unless  furnished  with  pews,  and  the 
duty  of  providing  them  therefore  falls  upon  those  charged  with  the  build- 
ing, or  repairing  and  maintaining,  of  the  church  {Maclcod,  1830,  8  S.  470 ; 
Duncan,  202).  The  width  of  a  pew  should  be  twenty-nine  inches,  and  the 
breadth  of  each  sitting  eighteen  inches  (Connell,  Par.  Sup.  72 ;  Harlaio,  1802, 
4  Pat.  350;  Hamilton,  1827,  6  S.  47).  Formerly  worshippers  seem  either 
to  have  stood,  or  else  brought  moveable  seats  with  them,  placed  them  on 
any  part  of  the  area  which  they  happened  to  find  unoccupied,  and  removed 
them  at  the  close  of  the  service ;  while  such  persons  as  desired  fixed  seats, 
having  first  obtained  leave  of  the  kirk  session,  required  to  erect  them  at 
their  own  expense.  It  is  stated  by  Dunlop  (p.  45),  on  the  authority  of 
Erskine,  ii.  6.  11,  that  if  a  heritor  have  erected  a  seat  at  his  own  expense, 
he  may  deal  with  the  materials  of  which  it  is  composed  as  he  pleases. 
This  statement  in  Erskine  seems  to  refer  to  the  period  when  it  was  the 
universal  custom  for  seats  to  be  erected  at  the  cost  of  private  individuals ; 
and  it  is  probable  that  a  heritor,  who  had  erected  a  seat  at  his  own 
expense,  would  not  now  be  entitled  to  dispose  of  the  materials,  except 
in  very  special  cases,  since  seats  appear  to  be  regarded  by  law  as  an 
integral  part  of  the  building  (Duncan,  229;  Kankine,  L.  0.  170).  If  a 
heritor  furnishes  his  pew  with  cushions  or  carpets,  they  remain  his  pro- 
perty, and  he  may  deal  with  them  as  he  pleases.  Formerly  they  were 
included  among  heirship  moveables  (Ersk.  iii.  8.  18).  The  circumstances 
in  which  a  person  becomes  entitled  to  a  seat  in  a  parish  church,  and  the 
rules  regarding  the  allocation,  letting,  or  selling  of  seats  differ  according  as 
the  church  is  the  church  of  a  Landward,  Landward-Burghal,  Burghal,  or 
Quoad  Sacra  parish,  or  is  a  Highland  church  erected  under  the  provisions 
of  4  Geo.  IV.  c.  79,  and  5  Geo.  iv.  c.  90.  The  subject  may  therefore  be 
divided  into  these  heads. 

(1)  Landward  Parish  Church. — Except  in  very  special  cases,  the  area 
and  the  pews  erected  thereon  are  the  common  property  of  the  heritors. 
But  so  long  as  the  church  is  used  as  such,  they  are  regarded  not  as  absolute 


SEATS  IX  CHUECHES  127 

proprietors,  but  rather  as  trustees  for  behcof  of  the  general  body  of 
parishioners,  for  whose  suitable  and  orderly  accommodation  at  divine 
worship  they  are  bound  to  provide.  In  virtue  of  his  share  in  the  common 
property,  every  heritor  is  entitled  to  have  a  portion  of  the  area  allotted  to 
him,  proportionate  to  the  value  of  his  lands,  he  in  turn  becoming  trustee 
for  the  parishioners  residing  on  his  estate  {Ure,  1828,  G  S.  917,  per  Ld. 
Cringletie  ;  Duke  of  Boxhurghc,  1875, 2  E.  715  ;  1876,  3  E.  728  ;  revd.  1877,4 
E.  H.  L.  76).  This  right  to  a  portion  of  the  area  is  so  closely  connected  with 
ownership  of  land  in  the  parish,  that  in  a  grant  of  lands  it  passes  svl)  silentio 
as  part  and  pertinent  thereof ;  and  if  a  heritor  sells  a  part  only  of  his  lauds, 
the  grant  carries  with  it  a  portion  of  the  area  originally  allotted  to  the 
heritor.  Xot  even  by  special  agreement  can  a  heritor  sell  his  land  and  yet 
retain  his  seat,  nor  can  he  sell  the  seat  and  retain  the  land  (Ersk.  ii.  6.  11  ; 
Bankt.  ii.  8.  192;  Lithr/ow,  1697,  IMor.  9637;  Buf,  1769,  Mor.  9644;  Fcdcn, 
1770,  Mor.  9644;  lire,  supra;  St.  Clair,  1776,  2  Hailes,  720,  per  Ld. 
]\Ionboddo ;  Duke  of  Boxburghe,  siqjra,  per  Ld.  Deas ;  Steijhcn,  1887,  15  E. 
72).     It  will  be  seen  that  the  necessity  for  an  allocation  of  seats  may  arise 

(1)  when  it  is  necessary  to  apportion  the  whole  area  among  the  heritors,  and 

(2)  when  an  estate,  in  virtue  of  which  an  allocation  has  been  made,  comes 
to  be  divided.  A  general  allocation  ought  to  be  made  whenever  a  new 
church  has  been  built,  or  an  old  one  enlarged  (Duncan,  221).  The  division 
may  be  made  extrajudicially  by  the  heritors  themselves,  or  judicially  on  the 
petition  of  any  heritor.  Formerly  the  presbytery  and  kirk  session  seem  to 
have  claimed  a  right  to  allocate  the  seats,  but  it  is  now  settled  that  they 
have  no  right  to  interfere  in  the  matter  {Heritors  of  Falkland,  1739,  Mor. 
7916;  Edviiburgli  Ecclesiastical  Commissioners,  1888,  15  E.  961,  per  Ld. 
Young).  Division  by  agreement  can  only  take  place  when  the  heritors  can 
come  to  a  unanimous  decision  as  to  the  portion  to  be  allotted  to  each, 
since  a  dissentient  heritor  or  heritors  cnn  always  apply  for  a  judicial  division 
{Earl  of  Marchmont,  1776,  Uov.  7924,  and  App.  "  Kirk,"  Xo.  2,  and  5  B. 
Sup.  558).  The  agreement  should  be  in  writing,  signed  by  all  the  heritors, 
probative,  and  registered  for  preservation,  in  case  the  fact  of  a  valid  division 
having  been  made  should  ever  come  to  be  questioned.  It  is  stated  by 
Duncan  (p.  220)  that  judicial  approval  of  the  agreement  may  be  obtained  "  at 
the  suit  of  those  having  interest,  such  as  an  heritor  or  his  tenants."  The  case 
of  Skirving,  1796,  Mor.  7930,  quoted  by  Duncan  in  support  of  this  statement, 
does  not  seem  to  have  much  bearing  on  the  point ;  and  it  is  thought  that 
a  petition  at  the  instance  of  a  tenant  would  be  incompetent,  since  tenants 
have  only  a  right  to  demand  sitting  accommodation  in  the  portion  of  the 
area  assigned  to  their  landlord,  and  no  right  to  interfere  in  the  general 
allocation  of  the  area  among  the  heritors  {Duke  of  Roxhurghc,  supra).  A 
judicial  allocation  becomes  necessary  whenever  the  heritoi-s  cannot  come  to 
an  agreement ;  and  is  perhaps  always  the  most  advisable,  especially  when 
the  ninuber  of  heritors  is  large.  The  proceedings  may  take  place  either 
before  the  SherifT  or  in  the  Court  of  Session.  In  the  usual  case,  a  petition 
craving  for  an  allocation  of  scats  is  presented  l^y  one  or  more  of  the  heritors 
to  the  Sheriir.  The  Sheriff  appoints  a  diet  at  which  parties  having  an 
interest  may  appear,  notice  thereof  being  given  by  advertisement,  and 
intimation  from  tlie  cliurch  pulpit.  After  parties  have  been  heard,  a  remit 
is  made  to  a  man  of  skill  to  ])repare  a  scheme  of  allocation.  At  a  subsequent 
diet,  notice  thereof  being  given  as  before,  olijections  to  the  scheme  are 
considered,  and  it  is  either  ap])rovcd  or  amended  (Black,  66  ;  Committee  of 
Heritors  of  Govan  Parish,  1890,  6  Sh.  Ct.  198).  The  Sheriff's  judgment 
is  subject  to  review  in  the  ordinary  way.     If  a  valid  allocation  has  once 


123  SEATS  IN  CHUECIIES 

been  made,  it  will  not  be  disturbed  so  long  as  the  structure  remains,  even 
though  tlie  church  should  have  to  be  reseated  {Stiven,  1878,  6  E.  174 ; 
Mitchell,  3  Sh.  Ct.  Rep.  297).  But  if  a  valid  division  has  never  been  made, 
no  amount  of  delay  in  presenting  an  application  for  allocation  will,  as  a  rule, 
be  fatal  {Smith,  1826,4  S.  738),  even  though  a  particular  state  of  possession 
has  existed  for  more  than  forty  years,  since  mere  possession  cannot  found  a 
right  ( Wemyss,  1838,  16  S.  332 ;  Mylcs,  6  Sh.  Ct.  liep.  698). 

In  the  case  of  Sinclair,  1761,  Mor.  7918,  however,  the  Court  refused  to 
disturb  a  state  of  possession  wliich  had  existed  for  eighty  years,  assuming 
that   a   valid   allocation   must  have   at  one   time  been   made,  though   no 
ao-reement  or  decree  was  produced.     When  a  particular  state  of  possession 
has  existed  for  the  prescriptive  period,  and  also  where  a  seat  is  claimed  in 
virtue  of  land,  the  title  to  which  is  in  dispute,  action  must  be  taken  in  the 
Court   of    S;jS3ion,   and   not   before    the    Sheriff  (Smith,  supra ;   Hags,    of 
Hamilton,  1846,  8  D.  844  ;  affd.  1850,  7  B.  App.  1),  unless  the  value  of  the 
subject  be  less  than  £1000,  or  £50  per  annum  (40  &  41  Vict.  c.  54,  s.  38). 
Whether  the  allocation  be  made  judicially  or  by  agreement,  the  principle  of 
division  will  be  the  same.     I^y  custom  every  heritor  is  entitled  to  choose  a 
family  pew,  sufficient  for  tlie  accommodation  of  his  family  and  guests  {Earl 
of  Ifarchmont,  supra;   Walker,  1848,  10  D.  1383).     The  heritor  having  the 
largest  valued  rent  in  the  parish  is  entitled  to  first  choice,  the  second  next, 
and  so  on,  down  to  the  lowest  {Sinclair,  supra ;  Feuars  of  Crieff,  1781,  2 
Hailes,  892  ;   Dnndas,  2    Hailes,  802).     The  size  of   pew  to  which  each 
heritor    is    entitled    is     not    proportionate     to     his    valuation.      But     a 
heritor   with  a  large   valuation   is   entitled   to   have  a  more  commodious 
pew  than  one   with  a   less,  because,  being  presumably  a  richer   man,  he 
will  be  able  to  entertain  more  guests  ( Walker,  supra).     After  the  family 
pews   and  seats   for  the  minister,  the  elders,  and   the  poor  (Dunlop,  41) 
have   been  set  aside,  the  remainder   of  the   area   is   divided   among   the 
heritors,  for  the  accommodation  of  their  servants  and  tenants.     In  calculat- 
ing the  amount  assignable  to  each  heritor,  the  portion  assigned  him  as  a 
family  pew  must  be  taken  into  account,  so  that  the  whole  divisible  area 
of  the  church  may  be  divided  amongst  the  heritors  in  proportion  to  their 
valued  rent   {Earl  of  Marchmont,  supra).     The  real,  and   not  the  valued, 
rent  would  probably  be  held    to   determine  the  order   of   choice  and  the 
amount  to  be  a-^signed  to  each,  if  the  burden  of  rebuilding  or  repairing  and 
maintaining  the  cliurch  has  been  apportioned  in  accordance  with  it  {Stephen, 
1887,  15  E.  72;  Dunlop,  30  ;  Eankine,  Lanclotunership,  168).    Tenants  are 
entitled  to  obtain  sittings  in  the  portion  of  area  assigned  to  their  landlord 
for  their  accommodation,  and  the  allocation  among  them  is  made  by  him. 
No  tenant  can  demand  a  particular  seat,  nor  insist  on  occupying  that  of 
his  predecessor,  but  the  landlord  shoidd  have  regard  to  the  amount  of  rent 
payable  by  his  tenants,  and  must  make  the  division  fairly,  and  so  as  to 
exclude  none  {Earl   of  Marchmont,   supra ;    Ure,  supra ;  Skirving,   supra  ; 
Kinnaird,  1802,  4  Pat.  429).     Any  tenant  who  feels  himself  aggrieved  may 
apply  to  the  Sheriff,  and  have  the  allotment  subjected  to  judicial  control 
{Skirving,  supra).     Before  the  abolition  of  patronage  (37  &  38  Vict.  c.  82) 
the  patron,  at  all  events  if  a  heritor  in  the  parish,  was  entitled  to  a  family 
pew,  and  first  choice,  no  matter  how  small  his  valued  rent.    Probably  he  has 
now  no  such  right.     It  has  been  decided  {Torphichen,  1765,  Mor.  9386,  and 
2  Hailes,  802)  that  mere  ownership  of  a  right  of  superiority  in  the  parish 
does  not  entitle  the  holder  to  a  seat  in  the  church.     "  The  superior,"  says 
Ld.  Braxfield,  "  is  not  entitled  to  set  his  foot  within  the  church,  or  even 
within  the  parish."     It  has  not  been  definitely  settled  whether  a  heritor 


SEATS  IN  CHUECHES  129 

whose  lands  have  been  inckided  in  a  quoad  sacra  parish  is  entitled  to  retain 
a  seat  in  his  old  parish  clmrcb  on  a  Iresh  allocation  taking  place,  but  the 
question  was  discussed  in  Duke  of  Boxburghc,  supra,  and  the  balance  of 
judicial  opinion  was  against  his  right. 

A  special  allocation  of  sittings  takes  place,  without  the  general  allocation 
being  in  any  way  interfered  with,  if  the  land  in  virtue  of  which  they  liave 
been  assigned,  conies  to  be  owned  by  several  difl'erent  proprietors.  Each  of 
these  will  be  entitled  to  a  portion  of  the  original  allotment  proportionate 
to  his  holding.  If  tiiey  cannot  agree  among  themselves,  possession  must  be 
in  common  until  a  judicial  allocation  can  be  made  {St.  Clair,  1776,  Mor. 
App.  "  Kirk,"  No.  1  ;  Eankine,  Landownersliip,  168).  It  does  not  seem  to 
be  settled  whether  the  family  pew  is  to  be  regarded  as  a  pertinent  of  the 
mansion-house,  or  whether  it  goes  to  the  proprietor  of  the  bulk  of  the  lands. 
Probably  it  would  be  regarded  as  a  pertinent  of  the  mansion-house 
{Lithgoiv,  supra). 

It  is  clear,  as  has  been  already  stated,  that  a  heritor  cannot  sell  his  seat 
apart  from  his  lands,  but  the  question  whether  he  can  let  it  is  more 
doubtful.  Formerly  it  seems  to  have  been  thought  that  a  heritor  was 
entitled  to  let  his  family  seat,  at  all  events  to  another  heritor  or  })arishioner, 
and  possibly  also  a  part  of  the  portion  assigned  to  him  for  his  tenants,  if 
not  required  for  their  accommodation,  provided  the  rents  obtained  were 
applied  to  the  relief  of  the  poor,  or  other  pious  use  within  the  parish  (Farie, 
2  Feb.  1813,  F.  C. ;  Gavin,  2  June  1825,  F.  C. ;  Dunlop,  p.  45,  s.  80  ;  Duncan, 
p.  22-1).  More  recently,  judges  have  given  expression  to  opinions  indicating 
that  it  is  illegal  for  heritors,  either  as  a  body  or  as  individuals,  to  let 
their  seats  (see  opinions  of  judges,  Clapjjerton,  1840,  2  D.  1385).  In 
the  case  of  the  Duke  of  Ahcrcorn  v.  Frcshytcry  of  Edinburgh,  1870, 
8  M.  733,  it  was  observed  by  Ld.  Manor  (p.  736)  that  "  the  letting 
of  seats  in  a  country  parish  church,  whether  for  the  purpose  of  main- 
taining the  fabric  or  for  raising  a  revenue  for  parochial  purposes  generally, 
is  altogether  illegal,  and  cannot  be  su])ported  by  custom  or  usage, 
however  long  continued "  ;  and  it  was  said  by  Ld.  Tres.  Inglis  in  Duke 
of  lloxhurrjltc,  supra :  "  The  portion  of  area  that  is  assigned  to  each  heritor 
is  given  to  liim,  not  to  be  occupied  exclusively  by  himself  and  liis 
family, — not  to  be  shut  up,  for  that  is  illegal — not  to  be  hired  out  for 
money,  for  that  is  Cfpially  illegal — but  to  be  used  for  the  benefit  of 
the  parishioners  who  are  resident  upon  his  estate."  On  the  other 
liand,  it  was  said  by  Ld.  Young,  in  Edinburgh  Ecclesiastical  Commis- 
sioners, su2)ra:  "The  areas  of  the  churches  —  churches  having  been 
built  by  the  heritors  —  are  apportioned  among  the  various  heritors 
wlio  contribute  to  the  cost  of  building  and  maintaining  them.  They 
make  bargains  about  tlieir  scats,  and,  at  anyrate,  they  may  give  to 
others  gratuitously,  or  upon  such  terms  as  they  think  fit,  the  right 
of  using  tlie  scats  allocated  to  themselves."  In  the  event  of  a  seat- 
holder  not  occupying  his  pew,  it  is  unanimously  agreed,  althougli  the 
point  lias  never  been  decided,  tliat  lie  cannot  exclude  other  parishioners, 
where  there  is  a  deficiency  of  accommodation.  l'ossil)ly  a  person  who 
has  a  light  to  a  scat,  and  finds  the  entrance  l)arred  Ijy  a  locked  door, 
may  bo  entitled  to  remove  the  obstruction  brcvi  manu  {M'Cronc,  1826,  5  S. 
42).  It  is  comjtetent  to  bring  an  action  of  interdict  against  the  actual 
erector  of  the  obstruction,  e.r/.  the  locksmith,  although  he  is  acting  for  a 
disclo.se  1  ])iincipal  (Dobbin,  18G3,  1  M.  532). 

The  ordinary  lules  of  law  may  be  modified  by  special  agreement  between 
private  parties  and  the  heritors,  at  the  time  the  church  is  being  rebuilt  or 

8.  E. — VOL.  XI.  9 


130  SEATS  IN  CHUECHES 

enlarged.  In  the  case  of  Smith,  supra,  the  heritors  had  agreed  with  the 
proprietor  of  an  aisle  in  the  old  church  that  he  should  have  an  equivalent 
area  allotted  to  him  in  the  new,  on  condition  of  his  allowing  them  to  use 
the  materials  of  the  aisle,  and  paying  a  sum  of  money  towards  the  erection 
of  the  new  church :  he  was  found  entitled  to  this  amount  of  space,  and  his 
right  to  sell  it  recognised.  In  connection  with  the  proposed  rebuilding  of 
Xilbarchan  Church,  partly  by  voluntary  subscription,  it  is  proposed  that 
certain  subscribers  should  have  a  right  to  a  seat  for  themselves  and  their 
families  so  long  as  they  remain  in  the  district.  A  similar  arrangement 
seems  to  have  been  made  and  given  effect  to  in  the  landward-burghal 
parish  of  Brechin  {Madmy,  1889,  17  R.  38). 

II.  Landward- Jjiirghal  Parish  Church,. — Formerly  the  first  step  in  the 
division  of  the  area  was  to  set  aside  one  portion  for  the  heritors  of  the 
landward  part  of  the  parish,  and  another  for  the  magistrates  of  the  town 
or  burgh,  as  representing  the  inhabitants.  The  size  of  the  portion  assigned 
to  each  was  determined  by  the  population  of  the  respective  districts, 
since  each  district  had  to  bear  a  share  of  the  expense  of  erecting  the  church 
proportionate  to  its  population  {Duke  of  Argyle,  1775,  Mor.  7921 ;  Heritors 
of  Crieff,  1781,  Mor.  7924;  Urc,  1793,  Mor.  7929).  Since  the  date  of  the 
cases  cited,  it  has  been  decided  that  the  expense  of  rebuilding  a  landward- 
burghal  church  must  be  borne  by  all  the  owners  of  land  in  the  parish  in 
proportion  to  their  real  rent  {Ilarlaw,  1802,  4  Pat.  356 ;  Bosicell,  1837,  15 
S.  1148);  and  it  is  therefore  competent,  when  the  assessments  have  been 
levied  on  them  as  individuals,  to  allocate  the  sittings  among  them,  without 
making  any  distinction  between  landward  and  burghal  heritors,  in  proportion 
to  their  real  rent,  and  in  accordance  with  the  rules  applicable  to  landward 
parishes  (Stephen,  1887,  15  R  72).  The  old  method  would  still  have  to  be 
followed  if  the  burgh  were  treated  as  a  single  heritor,  and  bore  a  share 
of  the  expense  proportionate  to  the  rental  of  the  property  in  the  burgh,  but 
the  parts  assigned  to  the  heritors  of  the  landward  district  and  the  corpora- 
tion respectively  would  be  proportionate  to  the  rental  instead  of  to  the 
population  of  the  respective  districts  (Dunlop,  37  ;  Duhc  of  Ahcrcorn,  1870, 
8  M.  742,  per  Ld.  Cowan).  The  share  allocated  to  the  landward  district 
falls  to  be  divided  among  the  heritors  in  accordance  with  the  rules  applicable 
to  landward  parish.  With  regard  to  the  town  share,  the  magistrates  may 
use  their  discretion  in  subdividing  it  amongst  the  inhabitants  {Stejjhen,  supra, 
per  Ld.  Pres.  Inglis),  and  have  probably  a  right  to  charge  rents  for  the  seats 
(Clapperton,  1840,  2  D.  1385).  As  in  the  case  of  landward  parishes,  special 
agreements  in  regard  to  building  the  church  may  modify  the  ordinary  rules 
{Mlntosh,  1825,  3  S.  508;  Mags,  of  Hamilton,  1846,  8  D.  44;  afi'd.  1850, 
7  B.  App.  1 ;  Machay,  1889, 17  R  38). 

III.  Burghal  Churches. — "  There  being  no  statute  declaratory  of  the 
rule  of  law  that  is  applicable  to  burghal  churches,  nor  any  distinct  dictum 
in  any  of  our  institutional  writers  regarding  it,  we  must  look  for  it,  in 
established  usage  and  practice,  either  general  or  special,  in  particular  cases, 
and  in  the  decisions  that  have  been  pronounced  by  the  Court "  {Clapperton, 
1840,  2  D.  1400,  per  L.  J.  C.  Boyle). 

In  practice  we  find  that  burghal  churches  are  generally  built  and  fitted 
up  by  the  magistrates  at  the  expense  of  the  community.  AVliere  this  is 
the  case,  they  may  raise  a  fund  sufficient  to  provide  for  the  repayment  of 
the  original  outlay,  the  maintaining  and  repairing  of  the  church  and  the 
expense  of  providing  what  is  necessary  for  the  decent  celebration  of  divine 
worship,  by  levying  reasonable  seat  rents  {Mags,  of  Grcenoclx,  1822,  2  S.  44 ; 
Clapperton,  supra).    Where  there  are  several  churches  in  a  burgh,  it  is  not 


SEATS  IX  CHUECHES  •  131 

necessary  to  limit  the  amount  raised  in  any  one  of  them  to  the  expenses 
incurred  in  connection  witli  that  pavticuL^r  churcli,  for  the  seat  rents 
derived  from  all  the  cluirches  may  be  massed  in  a  common  fund,  and  used 
to  meet  the  expense  of  the  whole  ecclesiastical  establishment  of  the  buro-h 
{Clapperton,  supra).  They  cannot  be  used  for  the  general  purposes  of  the 
burgh,  since  the  levying  of  seat  rents  for  any  purpose  other  than  ecclesiastical 
is  illegal  {Claiiperton,  supra).  It  may  be  noticed  that  since  the  case  of 
Clappcrton,  which  was  raised  in  connection  with  Edinburgh  churches,  was 
decided,  the  management  of  the  churches  in  that  city,  and  in  Montrose, 
has  been  transferred  by  23  &  24  Yict.  c.  50,  and  33  &  34  Vict.  c.  87,  to  a 
specially  constituted  body  of  Ecclesiastical  Commissioners,  and  it  is  directed 
that  the  seats  in  the  several  churches  shall  be  let  at  the  sight  of  the  kirk 
sessions,  and  that  the  money  received  by  them  shall  be  paid  to  the  Com- 
missioners. Several  cases  have  arisen  in  connection  with  the  working  of  these 
Acts  {Ediiiburcjh  Ecclesiastical  Commissioners,  1888,  15  11.  952,  and  Montrose 
Kirh  Session,  6  S.  L.  T.  125).  It  is  sometimes  stated,  on  the  authority  of 
the  ease  of  Watson,  1760,  M.  5431  and  7917,  that  magistrates  have  a  right 
not  only  to  let,  but  also  to  sell  seats.  The  point,  however,  cannot  be 
regarded  as  decided,  as  the  question  before  the  Court  was  really  oue  of 
succession,  and  no  attempt  was  made  to  reduce  the  sale  which  had  been 
made  by  the  magistrates.  No  particular  rules  are  observed  in  allocating 
seats  in  a  burgh  church,  but  seats  are  generally  set  aside  for  the  magistrates, 
and  for  the  poor,  and  in  the  event  of  there  being  a  deficiency  of  accommoda- 
tion, a  preference  should  be  given  to  parishioners  desiring  to  take  seats  over 
Don-parishioners. 

HI.  Quoad  Sacra  Church. — The  distribution  of  seats  is  regulated  by 
7  &  8  Vict.  c.  44,  s.  9.  One  pew  is  to  be  set  aside,  rent  free,  for  the 
minister  and  his  family,  and  another  for  the  officiating  elders.  With 
regard  to  the  rest  of  the  sittings,  it  is  provided  that  a  portion  of  the  sittings, 
to  be  determined  by  the  Sheriff  of  the  county,  and  not  exceeding  one-tenth 
of  the  whole  number,  shall  be  set  apart  as  free  seats ;  another  portion,  not 
exceeding  one-fifth  of  the  whole  sittings,  shall  be  let  at  rents  not  exceeding 
a  rate  to  be  fixed  by  the  presbytery  of  the  bounds  ;  and  the  remaining 
portion  may  be  let  in  such  manner  as  shall  be  agreed  upon  by  the  minister 
for  the  time  l)eing  and  the  person  or  persons  liable  for  the  repair  of  the 
church  and  for  the  stipend  of  the  minister,  or,  in  case  of  thoir  not 
agreeing,  then  in  such  manner  as  shall  be  determined  by  the  Sheriff  of  the 
county.  The  rents  may  be  applied  for  the  purpose  of  defraying  the 
necessary  expenses  of  a  precentor,  beadle  or  kirk  officer,  and  other  expenses 
nccos5-;arily  incurred  in  dispensing  tlie  ordinances  of  religion  therein,  and 
for  tlie  upkeep  of  the  churcli  and  manse,  or  for  the  relief  of  any  person 
liable  to  uphold  the  same,  or  liable  for  the  endowment  or  stipend  provided 
to  the  minister,  provided  that  the  sum  received  by  any  such  person  shall 
not  in  any  year  exceed  the  sum  paid  or  expended  by  him  in  tlie  same  year 
by  reason  of  such  liability. 

IV.  Hifjldand  Church  (4  Geo.  iv.  c.  79,  and  5  Geo.  iv.  e.  90).— Tlie 
regulations  regarding  the  allocation  of  pews  are  to  be  found  in  5  Geo.  iv. 
0.  90,  ss.  18  to  22.  Shortly  stated,  they  are  as  follows  : — One-third  part  of 
the  church  is  to  be  set  aside  as  free  sittings,  and  free  pews  arc  to  be 
provided  for  the  heritor  who  undertakes  wholly,  or  principally,  the  lialiility 
for  the  repair  of  the  church,  the  minister's  family,  and  the  officiating  elders. 
The  remaining  sittings  may  be  let  at  a  rent  not  exceeding  2s.  6d.  per  annum 
for  each  sitting,  payable  in  advance.  The  proceeds  are  to  be  devoted  to  the 
repair  and  upkeep  of  tlio  church  and  manse  ;  and  in  the  event  of  a  greater 


132  SEAWORTHINESS 

sum  than  £20  accumulating  in  the  hands  of  the  ministers  and  elders,  they 
are  required  to  pay  it  into  the  Bank  of  Scotland  or  other  chartered  bank 
in  the  name  of  any  two  of  themselves  appointed  for  that  purpose.  The 
manner  of  letting  the  pews  is  that  agreed  upon  by  the  heritor,  or  heritors, 
undertaking  liability  for  the  repair  of  the  building,  and  the  minister 
for  the  time  being.  In  the  event  of  their  not  agreeing,  they  must  bring 
the  matter  before  the  Sheriff,  who  reports  to  the  Commissioners  appointed 
under  the  Act,  and  they  settle  the  manner  of  letting  the  seats. 

V.  Succession  to  Church  Scats. — Where  a  person  is  entitled  to  a  seat  in 
church  in  virtue  of  ownership  of  land  in  the  parish,  his  right  necessarily 
passes  on  his  death  to  his  successor  in  the  lands.  With  regard  to  burghal 
churches,  where  seats  are  held  in  virtue  of  contract  and  not  of  ownership 
of  land,  and  seats  held  in  virtue  of  an  anomalous  title,  the  succession  will 
be  regulated  by  the  nature  of  the  title.  "  If  the  right  be  one  of  occupation 
merely,  in  favour  or  for  behoof  of  a  family,  this  may  tend  to  impress  the 
right  with  the  character  of  one  in  favour  of  the  executors,  as  opposed  to  the 
heir.  On  the  other  hand,  when  the  right  is  one  of  property  in,  as  opposed 
to  the  mere  use  and  temporary  occupancy  of,  the  seat,  then,  as  constituting 
a  right  of  ownersliip  in  a  heritable  subject,  it  descends  to  the  heir,  and  not 
to  the  executors"  {Tclfer,  1810,  Hume,  192;  Watson,  1760,  M.  5431  and 
7917  ;  Milne,  1869,  7  M.  406 ;  Duncan,  229). 

[Connell,  Parishes  Sujjplement ;  Dunlop,  Parochial  Law ;  Duncan,  Ecclesi- 
astical Law ;  Eankine,  Landownership  ;  Black,  Ecclesiastical  Law.] 


Seaworthiness. — It  is  the  first  duty  of  the  owners  and  master 
of  a  ship,  under  every  contract  relating  to  its  employment,  to  provide  a  sea- 
worthy vessel.    By  the  term  "  seaw^orthy  "  it  is  meant  that  the  ship  is  "  tight 
and  staunch  and  strong,  furnished  with  all  necessary  tackle  and  apparel,  and 
manned  with  a  sufficient  crew  "  (Maclachlan  on  Shi'pping,  p.  426).     It  is  a 
relative  term,  varying  according  to  the  nature  of  the  use  to  which  the  ship 
is  put.     "  There  is  no  positive  condition  of  the  vessel  recognised  by  the  law 
to  satisfy  the  warranty  of  seaworthiness"  (per  Watson,  B.,  in  Knill,  1857, 
26  L.  J.  Ex.  377,  at  p.  379).     "  The  question  whether  a  vessel  is  seaworthy," 
said  Blackburn,  J.,  "  is  from  its  nature  one  that  in  practice  must  almost 
always  be  determined  by  a  jury  on  the  evidence,  with   only  a  general 
direction  from  the  presiding  judge ;  and  consequently  we  find  in  the  reported 
cases  only  general  definitions  of  seaworthiness,  not  rendered  precise  by 
being  made  referable  to  particular  facts  "  {Purges,  1863,  33  L.  J.  Q.  B.  17, 
at  p.  25).     The  principal  circumstances  relevant  to  the  determination  of 
this  question  are :  the  position  in  which  the  vessel  is  placed  (Arnould, 
Marine  Insurance,  p.  7 ;  Purges,  supra,  per  Cockburn,  C.  J.,  at  p.  23 ;  The 
Undaunted,  1886,  11  P.  D.  46,  case  of  a  tug  undertaking  towing  services); 
the  projected  voyage,  its  probable  duration  and  nature,  as  affected  among 
other  things  by  the  time  of  year  at  which  it  is  made  {Daniells,  1874,  L.  E. 
10  C.  P.  1 ;  Steel,  1877,  3  App.  Ca.  72,  4  E.  (H.  L.)  103);  the  tige  {Watson, 
1813,  1  Dow,  336,  3  S.  E.  E.  (H.  L.)  85)  or  structure  of  the  particvilar  vessel 
•with  reference  to  which  the  contract  was  made  {Purges,  supra) ;  the  nature 
x)f  the  cargo  to  be  carried  {Sta7iton,  1872,  L.  E.  7  C.  P.  421  ;  1874,  L.  E.  9 
C.  P.  390 ;  Tattcrsall,  1884, 12  Q.  B.  D.  297) ;  and  the  manner  in  which  it  is 
stowed  {Daniells,  1874,  L.  E.  10  C.  P.  1 ;  Kopitoff,  1876,  1  Q.  B.  D.  355 ; 
Steel  &  Craig,  1877,  3  App.  Ca.  72,  4  E.  (H.  L.)  103).    The  word  "  seaworthy  " 
includes  the  manning  of  the  ship  with  a  competent  master  and  an  adequate 
crew ;  and  also  having  on  board  such  provisions  as  may  be  required.    When 


SEAWOETHIXESS  133 

a  statutory  obligation  is  laid  upon  the  owners  and  master  of  a  ship  with  the 
view  of  providing  for  the  safety  of  the  vessel  and  crew,  e.g.  that  certain 
oflicers  must  hold  certificates  from  the  Board  of  Trade,  failure  to  comply 
with  such  obligation  will  be  considered  as  constituting  unseaworthiness  to 
the  prejudice  of  any  person  privy  to  the  illegal  act  (Cunard,  1858,  27  L.  J. 
Q.  B.  408  ;  1859,  29  L.  J.  Q.  B.  6 ;  Wilson,  18G5,  34  L.  J.  Q.  B.  62). 

There  is  no  condition  of  any  vessel  which  can  be  stated  as  perfect  for  all 
employments  to  which  it  may  be  put.  "  By  seaworthiness,"  said  Ld.  Chan. 
Cairns,  "  I  do  not  desire  to  point  to  any  technical  meaning  of  the  term,  but 
to  express  that  the  ship  should  be  in  a  condition  to  encounter  whatever 
perils  of  the  sea  a  ship  of  that  kind  and  laden  in  that  way  may  be  fairly 
expected  to  encounter  in  crossing  the  Atlantic"  (Steel  &  Craig,  1877,  3 
App.  Ca.  72,  at  p.  77,  4  R.  (H.  L.)  103).  "Seaworthiness  is  well  understood 
to  mean  that  measure  of  fitness  which  the  particular  voyage  or  the  particular 
stage  of  the  voyage  requires.  A  vessel  seaworthy  for  port,  and  even  for 
loading  in  port,  may  be,  without  any  breach  of  the  warranty  whilst  in  port, 
unseaworthy  for  the  voyage"  (per  Field,  J.,  delivering  the  judgment  of  the 
Court  in  Colin,  1877,  2  Q.  B.  D.  455,  at  p.  461).  "  There  is  seaworthiness  for 
the  port,  seaworthiness  in  some  cases  for  the  river,  and  seaworthiness  in 
some  cases  for  some  definite  well-recognised  and  distinctly  separate  stage  of 
the  voyage"  {Quehec  Mar.  Insur.  Co.,  1870,  L.  E.  3  P.  C.  234,  per  Ld. 
Penzance,  at  p.  241;  Amowld,  Marine  Insurance,  p.  664).  "As  the  ship 
may  be  insured  to  lie  in  port,  to  navigate  rivers,  or  to  sail  the  ocean,  sea- 
worthiness ...  is  necessarily  a  relative  term  capaljle  of  a  meaning  suitable 
to  whichever  of  these  intentions  may  be  expressed  in  the  policy.  A  different 
state  of  the  hull,  rigging,  and  stores,  a  different  state  of  the  crew,  is  signified 
by  the  term  as  it  becomes  applicable  to  a  contemplated  difference  of 
circumstances  affecting  the  ship  "  (Arnould,  pp.  7,  8).  The  seaworthiness 
required  in  each  case  is  that  degree  of  seaworthiness  suitable  to  the  position 
of  the  si  lip,  or  the  voyage  or  stage  of  the  voyage  upon  which  it  is  entering 
(Dixon,  1839,  5  M.  &  W.  405 ;  Quehec  Mar.  Insur.  Co.,  snjyra).  If  a  vessel  is 
chartered  for  the  purpose  of  carrying  cargo  of  a  specified  nature,  it  must  be 
reasonably  fit  to  carry  any  reasonable  cargo  offered  in  terms  of  the  charter 
(Stanton,  1872,  L.  E.  7  C.  P.  421 ;  1874,  L.  E.  9  C.  P.  390  ;  Tattersall,  1884, 12 
Q.  B.  D.  297) ;  the  term  "  seaworthy,"  in  the  circumstances,  being  used  not  in 
any  abstract  sense,  but  with  special  reference  to  the  particular  contract. 
Thus  a  ship  chartered  to  convey  cattle  was  held  to  be  unseaworthy  in  respect 
it  had  not  been  cleansed  since  carrying  another  cargo  of  cattle,  some  of 
whom  had  suffered  from  foot-and-mouth  disease  (Tattersall,  supra).  An 
agreement  made  by  bill  f)f  lading,  headed  "  Eefrigerator  I'.ill,"  to  carry  frozen 
moat  from  Australia  to  this  country  was  held  to  have  an  implied  term  that 
the  ship  would  be  fitted  with  a  proper  refrigerator  in  good  condition  at  the 
beginning  of  the  voyage,  and  the  fact  that  the  refrigerator  was  not  then  in 
gf)i»d  coiKbtion  was  held  to  constitute  unseaworthiness  (,]faori  King,  [1895] 
2  Q.  B.  550).  "A  ship,  before  setting  out  on  the  voyage,  is  seawoitliy  if  it 
is  fit  in  the  degree  which  a  prudent  owner,  uninsured,  would  require  to  meet 
the  perils  of  the  service  it  is  then  engaged  in,  and  would  continue  so  during 
the  voyage  unless  it  meet  with  cxtraorilinary  damage"  (Gibson,  1853,  4 
H.  L  C.  353,  ])cr  Karle,  J.,  at  ]>.  3)84).  Tiie  (jucstion  whether  stowing  cargo 
on  deck  makes  a  ship  unseaworthy  depends  on  whetluM-  the  effect  of  such 
Stowage  is  to  render  tin;  ship  unsafe  on  an  ordinary  voyage  at  that  time  of 
year.  If  it  is  a  danger  to  the  ship  on  an  ordiiuiry  voyage,  or  if,  in  order  to 
Save  the  ship  from  ordinary  perils,  it  is  contemplated  that  there  may  be  a 
destruction  of  the  cargo,  the  vessel  is  rendered  unseaworthy  and  the  con- 


134  SEAWOETHINESS 

dition  is  not  fulfilled  {Danidls,  1874,  L.  E.  10  C.  P.  1).  Unseaworthiness 
may  be  caused  Ly  a  defective  hull  (  Watt,  1813,  1  Dow,  32,  3  S.  E.  E  (H.  L.) 
7  ;  Douglas,  1816,  4  Dow,  269,  3  S.  E.  E.  (H.  L.)  319),  or  a  defect  in  the  pro- 
pelling power  (Seville  Sulphur  Co.,  1888,  15  E.  616;  cf.  Cunnvnghavi,  1888, 
16  E.  295),  such  as  machinery  {The  Glen/ruin,  1885,  10  P.  D.  103)  and 
sails  (Coolc,  1843,  5  D.  1379),  or  insufficient  coal  (The  Undaunted,  1886,  11 
P.  D.  46 ;  Thill,  [1892]  2  Q.  B.  141 ;  Park,  1898,  25  E.  528),  by  her  equip- 
ment being  insuilicient  {Maori  King,  suprcc,  refrigerator  case),  e.g.  if  she  have 
not  proper  anchors  (  Wilkie,  1815, 3  Dow,  57, 3  S.  E.  E.  (H.  L.)  253).  But  the 
want  of  such  articles  as  towing  ropes  will  not  constitute  unseaworthiness  if 
there  is  no  evidence  that  they  are  required  {Stone,  1849,  11  D.  1041).  If 
there  is  a  duty  on  the  master  to  have  a  pilot  at  the  commencement  of  the 
voyage,  the  failure  to  take  such  a  precaution  will  constitute  unseaworthiness 
(Abbott,  13th  ed.,  p.  388). 

The  time  at  which  the  obligation  is  laid  upon  the  owners  and  master  of 
a  vessel  to  provide  one  tight,  staunch,  and  strong,  with  all  necessary  equip- 
ment, is,  according  to  circumstances,  the  commencement  of  loading  or  of 
setting  sail  upon  her  voyage,  or  at  the  moment  when  the  risk  attaches.  If  a 
ship  is  seaworthy  at  that  time,  it  does  not  matter  how  soon  thereafter  she 
becomes  unseaworthy,  the  obligation  is  fulfilled ;  but  if  she  show  herself  to 
be  unseaworthy  soon  after  sailing,  the  presumption  will  be  that  she  was  un- 
seaworthy at  the  commencement  (  Watson,  supra ;  ParTxcr,  sujjra).  But  this 
does  not  depend  on  any  question  of  time  alone :  it  is  an  inference  from 
facts.  Of  course  the  longer  the  time  which  elapses  between  setting  sail  and 
showing  inability  to  proceed,  the  less  strong  will  be  the  inference ;  but  the 
matter  of  time  is  only  one  element  for  consideration,  and  not  by  any  means 
the  most  important  {Pickup,  1878,  3  Q.  B.  D.  594).  A  ship  may,  however, 
start  from  port  in  such  a  condition  that  it  would  be  reckoned  to  have  been 
unseaworthy  if  it  were  allowed  to  remain  so  during  the  voyage,  e.g.  a  port 
may  have  been  left  unfastened (.^/ee/  &  Craig,  1877,  3  App.  Ca.  72,  4  E.  (H.  L.) 
103;  Dohell,  [1895]  2  Q.  B.  408),  or  a  hatchway  open,  or  a  pipe  may  have  been 
left  uncased  which  ought  to  liave  been  cased  {Gilroy  Sons  &  Co.,  1892,  20  E. 
(H.  L.)  1 ;  [1893]  App.  Ca.  56).  But  it  will  not  thereby  be  rendered  unsea- 
worthy, provided  that  can  easily  be  remedied  after  starting,  and  before  the 
defect  can  cause  injury.  Such  a  case  was  Cunningham  (1888,  16  E  295  ;  cf. 
Seville  Sulphur  Co.,  1888,  15  E.  616),  where  the  ship  started  with  muddy 
water  in  the  Ijoiler,  which  could  have  been  blown  off  when  she  got  out  to 
sea.  But  if  the  defect  cannot  be  remedied  without  removing  the  cargo,  the 
condition  is  held  not  to  have  been  complied  with  {Steel  &  Craig,  supra ; 
Gilroy  Sons  &  Co.,  supra). 

By  the  Merchant  Shipping  Act,  1894  (57  &  58  Vict.  c.  60,  s.  457),  it  is 
declared  a  misdemeanour  for  any  person  to  send  or  attempt  to  send  a  British 
ship  to  sea  in  such  an  unseaworthy  state  that  the  life  of  any  person  is 
likely  to  Ije  thereby  endangered.  But  it  is  a  defence  to  prove  either  that 
the  person  charged  used  all  reasonable  means  to  ensure  her  being  sent  in 
a  seaworthy  state,  or  that  her  going  in  an  unseaworthy  state  was,  in  the 
circumstances,  reasonable  and  justifiable.  The  Board  of  Trade  has  power 
to  detain  any  British  ship  which  is  unsafe  by  reason  of  the  defective  con- 
dition of  her  hull,  equipments,  or  machinery,  or  by  reason  of  undermanning 
or  overloading  or  improper  loading  (M.  S.  A.,  1894,  ss.  459-461 ;  M.  S.  A., 
1897,  60  &  61  Vict.  c.  59,  s.  1  (1)).  When  a  foreign  ship  has  taken  on  board 
any  part  of  her  cargo  at  a  port  in  the  United  Kingdom,  she  may  similarly 
be  detained  on  the  ground  of  safety  by  reason  of  overloading,  improper 
loading,  or  undermanning  (M.  S.  A.,  1894,  s.  402;  M.  S.  A.,  1897,  s.  1  (2)). 


SEAWOETHIXESS  135 

Questions  as  to  the  seaworthiness  of  a  ship  may  arise  with  (1)  members  of 
the  crew,  (2)  charterers  or  cargo-owners,  or  (3)  insurers  of  sliip,  goods, 
freight,  or  salvage. 

(1)  The  Crciv. — Tn  every  contract  of  service  between  the  owner  of  a 
ship  and  the  shipmaster  or  one  of  the  crew,  and  in  every  instrument  of 
apprenticesliip  to  sea,  there  is  imj)lied  an  oljligation  on  the  owner  that  he, 
and  every  agent  employed  by  him  in  preparing  the  ship  for  sea,  or  sending 
her  to  sea,  shall  use  all  reasonable  means  to  ensure  her  seaworthiness  at 
the  commencement,  and  keep  her  so  during  the  voyage.  This  obligation 
towards  every  master  or  seaman  cannot  be  waived ;  but  it  may  be  pleaded 
that  the  sending  the  ship  to  sea  in  an  unseaworthy  state  was  reasonable 
and  justifiable  (M.  S.  A.,  189-4,  s.  458).  But  a  ship  is  not  held  unseaworthy 
at  the  commencement  of  the  voyage  if  she  leave  port  with  something 
undone  wdiich  requires  to  be  done  to  make  her  seaworthy,  provided  the 
defect  can  easily  be  remedied  before  any  danger  arise  therefrom  (see 
supra).  And  it  is  not  a  breach  of  the  owner's  obligation  to  use  all  reasonable 
means  to  keep  the  ship  seaworthy,  that  owing  to  neglect  on  the  part  of  the 
master  the  defect  has  not  been  timeously  rectified  {Hcdley,  [1894]  App.  Ca. 
222).  It  is  a  defence  to  a  charge  of  desertion  or  absence  without  leave, 
that  a  certain  number  of  the  crew  allege  that  the  ship  is  by  reason  of 
unseaworthiness  not  in  a  fit  condition  to  proceed  to  sea  (M.  S.  A.,  1894,  s.  463). 

(2)  Charterers  and  Cargo-owners. — In  every  contract  for  the  carriage  of 
goods,  however  it  may  be  made,  wdietlier  by  charter-party  or  bill  of  lading, 
there  is  implied  an  undertaking  on  the  part  of  the  carrier  that  the  vessel 
shall  be  fit  to  carry  out  the  contract,  i.e.,  in  the  case  of  a  ship,  that  she  shall 
be  seaworthy  (Kopitoff,  187G,  1  Q.  B.  D.  355).  This  rule  depends  in 
England  on  the  common  law  of  that  country  with  respect  to  bailment,  but 
the  same  result  follows  in  Scotland  from  the  adoption  of  the  civil  law  rule 
expressed  in  the  edict,  nautcc,  caupones,  stabularii,  etc.  The  rule  docs  not 
apply  to  the  carriage  of  passengers  (Ilcadhcad,  18G9,  L.  11.  4  Q.  B.  379); 
altliough  the  seaworthiness  of  passenger  steamers  is  required  by  statute 
(M.  S.  A.,  1894,  ss.  271-274).  Its  effect  is  a  warranty  on  the  part  of  the 
shipowner  against  all  perils  excepting  the  acts  of  God  and  the  Queen's 
enemies,  even  against  latent  defects  (Abbott,  13th  ed.,  p.  386  ;  The  Glenfruin, 
1885,  10  r.  I).  103).  Scawortliiness  means  not  merely  that  the  person 
providing  tlic  ship  will  do  his  Ijcst  to  make  the  ship  fit,  but  warrants 
that  the  ship  will  really  be  fit  (Steel  &  Craiq,  1877,  3  App.  Ca.  72,  per 
Ld.  Blackburn,  at  p.  86,  4  B.  (II.  L.)  l^  ;  Douglas,  1816,  4  Dow,  269,3  S.  B. 
li.  (H.  L.)  319;  The  Glenfruin,  supra).  The  warranty  is  that  the  vessel 
will  Ijc  seaworthy  for  loading  purposes  at  the  time  of  loading  (Stanton,  1872, 
L.  B.  7  C.  B.  421 ;  1874,  L.  B.  9  C.  B.  390),  and  for  the  voyage  at  the  time 
of  commencing  the  voyage  (Cohn,  1877,  2  Q.  B).  I).  455 ;  3faori  King, 
[1895]  2  Q.  B.  550  ;  Park,  1898,  25  B.  528).  If  there  are  several  stages  in 
the  voyage,  slie  must  l)e  seaworthy  at  tlie  time  of  starting  on  cacli  stnge 
{Thin,  [1892]  2  Q.  B.  141 ;  Quebec  Mar.  Iiisur.  Co.,  1870,  L.  B.  3  B.  C.  234). 
And  in  particular,  she  must  be  seawortliy  at  the  commencement  of  each 
cargo-voyage  (Cunningham,  1888,  16  B.  295,  per  Ld.  Sliand,  at  p.  314; 
Carver  on  Carriage  hg  Sea,  s.  144).  Tliis  a])plies  in  the  case  of  a  time 
charter,  there  being  no  demise  of  tlic  vessel.  In  such  a  case  it  has  been  laid 
down  that  she  mu.st  be  seaworthy  "on  leaving  each  place  where  the  master 
has  an  opportunity  to  refit  or  refurnish"  lier  (J'arl,;  1898,  25  B.  528,  per 
Ld.  M(jncreiri',  at  p.  548).  Although  the  ship  may  be  seaworthy  at  the 
commencement  of  the  voyage,  she  may  afterwards  become  unseawortliy. 
In  that  event  it  is  the  duty  of  the  master,  if  In;  lim  opportunity,  to  have 


136  SEAWORTHINESS 

the  defect  repaired  (Worms,  1855,  L.  J.  Ex.  1 ;  Thin,  [1892]  2  Q.  B.  141). 
The  warranty  of  seaworthiness  in  a  contract  of  carriage  is  only  of  importance 
as  it  enables  the  owner  to  implement  his  obligation  to  carry  safely.  If  the 
goods  are  carried  without  injury,  it  is  of  no  account  that  the  vessel  was 
unseaworthy  on  sailing,  and  only  accomplished  the  voyage  owing  to 
fortunate  circumstances.  On  the  other  hand,  if  the  goods  are  lost  or 
injured  solely  through  some  other  cause  than  the  unseaworthiness  of  the 
ship,  that  other  cause  alone  can  be  considered  in  placing  the  liability ;  and 
the  owner's  neglect  of  duty,  which  did  not  conduce  to  the  damage  actually 
suffered,  cannot  render  him  liable  for  the  loss  {Ci(nningham,18SS,  16  E.  295, 
per  Ld.  Shand,  at  p.  311). 

If  a  cargo  suffers  damage,  the  onus  lies  on  the  shipowner  to  show  what 
was  the  cause  of  the  damage,  and  he  is  held  liable  for  the  loss  unless  he 
proves  a  cause  for  which  he  is  not  to  blame  {Lvke  &  Co.,  1897,  4  S.  L.  T. 
452  ;  Cunningham,  supra,  per  Ld.  Shand,  p.  311). 

It  is  competent  to  parties  to  the  contract  to  limit  the  liability  of  the 
carrier,  but  a  clear  expression  of  intention  is  necessary  to  exempt  him  from 
this  implied  warranty.  If  the  o])ligation  to  provide  a  seaworthy  vessel  is 
discharged  provided  the  owner  uses  all  reasonable  means  to  make  the  ship 
seaworthy,  this  constitutes  an  obligation  that  the  owner,  through  his  agents, 
will  use  such  reasonable  means,  and  negligence  on  the  part  of  one  of  the 
crew  causing  unseaworthiness  will  make  the  owner  liable.  The  effect  of 
such  a  limitation  is  to  exempt  the  owner  from  liability  for  latent  defects 
(Bobell  &  Co.,  [1895]  2  Q.  13.  408).  An  exception  which  exempts  the 
owner  from  liability  for  accidents  or  perils  of  the  sea,  or  for  fault, 
negligence,  or  error  in  navigation  or  in  the  management  of  the  vessel,  is 
read  as  applying  to  such  accidents,  perils,  faults,  or  errors  after  the  voyage 
has  been  commenced,  unless  it  is  otherwise  stated  in  the  agreement ;  it  has 
no  reference  to  the  seaworthiness  of  the  vessel  at  the  time  of  sailing 
(Dohcll  &  Co.,  supra;  Maori  King,  [1895]  2  Q.  B.  550;  Park,  1898,  25  R, 
528;  Cilroy  Sons&  Co.,  1892,  20  E.  (H.  L.)  1;  [1893]  App.  Ca.  56;  The 
Glenfruin,  1885,  10  P.  D.  103).  It  will  not  relieve  the  owner  from 
liability  where  negligence  on  the  part  of  the  master  or  crew  has  caused 
unseaworthiness  at  the  beginning  of  the  voyage ;  and  if  a  peril  of  the  sea 
cause  damage  which  would  not  have  been  caused  but  for  the  unseaworthi- 
ness of  the  ship  at  the  time  of  sailing,  the  exception  will  not  benefit  him 
(Sieel  &  Craig,  1877,  3  App.  Ca.  72,  4  E.  (H.  L.)  103).  Notice  that  the 
carrier  will  not  be  liable  for  any  damage  unless  it  should  happen  from  want 
of  care  or  diligence  on  the  part  of  the  master  or  crew  in  which  case  his 
liability  is  stated  to  be  at  a  certain  rate,  will  only  limit  his  responsibility 
where  the  law  would  make  him  answer  to  the  full  for  the  neglect  of  others, 
and  leave  him  liable  as  before  for  loss  occasioned  through  his  own  neglect 
in  not  providing  a  seaworthy  vessel  {Lyon,  1804,  5  East,  428,  17  E.  E.  726 ; 
Tattcrsall,  1884,  12  Q.  B.  D.  297).  Exceptions  which  have  for  their  object 
the  exemption  of  owners  from  liability  for  unseaworthiness  are  effectual  to 
the  extent  they  state  when  they  provide  that  the  ship  shall  be  seaworthy 
only  so  far  as  ordinary  care  can  make  her ;  or  as  far  as  due  care  in  the 
selection  of  agents,  pilots,  master,  and  crew  can  ensure  it ;  or  that  the 
owners  shall  not  be  liable  for  damage  arising  from  latent  defect  in  the 
machinery  {Cargo  ex  Laertes,  1887,  12  P.  D.  187). 

If  the  ship  provided  for  a  cargo  is  not  seaworthy,  the  cargo-owner  may 
refuse  to  put  his  cargo  on  board  {Stanton,  1872,  L.  E.  7  C.  P.  421 ;  1874, 
L.  E.  9  C.  P.  390). 

(3)   Insurers. — "There   is   nothing,"    said   Ld.   Eldon,  "in   matters  of 


SECONDARY  CEEDITOES  137 

insurance  of  more  importance  than  the  implied  warranty  that  a  ship  is 
seaworthy  when  she  sails  on  the  voyage  insured"  {Douglas,  1816,4  Dow, 
269,  at  p.  276,  3  S.  E.  E.  (H.  L.)  319).  This  warranty,  the  extent  of  which 
is  the  same  as  in  a  question  with  the  owner  of  cargo  (see  supra),  is  implied 
in  every  marine  insurance  policy,  whether  on  the  ship  {Watson,  1813,  1 
Dow,  336,  3  S.  E.  E.  (H.  L.)  85),  freight  {Pidaip,  1878,  3  Q.  B.  D.  594), 
cargo  {Daniells,  1874,  L.  E.  10  C.  P.  1),  or  salvage  {Knill,  1857,  26  L.  J.  Ex. 
377),  with  the  exception  of  a  time  policy.  There  is  no  warranty  of 
seaworthiness  impHed  in  any  time  policy,  although  such  a  condition  may 
be  inserted  therein  {Gibson,  1853,4  H.  L.  C.  353;  Dudgeon,  1877,  L.  E.  2 
App.  Ca.  284;  Kenneth  &  Co.,  1883,  10  E.  547).  It  is  not  necessary  to 
disclose  anything  to  the  underwriters  as  to  the  seaworthiness  of  the  vessel, 
since  that  is  an  implied  warranty  {Balder,  1856,  18  D.  691).  It  is  a 
condition  precedent  to  the  contract,  and  if  it  is  not  complied  with  it  does 
not  matter  whether  any  loss  was  caused  by  unseawortliiness  or  not,  the 
underwriters  escape  liability  {Cooh,  1843,  5  D.  1379).  The  ship  must, 
in  order  that  the  warranty  may  be  complied  with,  be  seaworthy  at  the  time 
when  the  risk  begins  {Rcehnan,  1845,  14  M.  &  W.  476).  If  she  is  so, 
the  policy  attaches,  and  the  insured  cannot  afterwards  claim  return  of  the 
premium  on  the  ground  that,  owing  to  subsequent  unseaworthiness,  the  risk 
was  never  run  (Arnould  on  Marine  Insurance,  665).  But  different  stages 
of  a  voyage  require  different  conditions  of  the  ship  to  satisfy  the  obligation 
(see  supra).  It  is  enough  to  attach  the  policy,  that  the  ship  be  seaworthy 
for  the  current  or  commencing  stage.  If  the  policy  be  on  a  ship  "at  and 
from  "  a  port,  the  policy  attaches  if,  while  at  the  port,  she  is  seaworthy  for 
the  port.  But  when  she  sails,  she  must  also  be  seaworthy  for  the  voyage. 
This  is  implied  in  the  contract.  If  a  ship  is  insured  "  at  and  from  "  a  port, 
and  while  "at"  the  port  is  seaworthy  for  the  purposes  of  the  port,  but  not 
for  the  voyage,  and  thereafter  starts  on  her  voyage  without  being  rendered 
seaworthy  for  it,  the  warranty  is  not  fulfilled  {Parker,  1815,  3  Dow,  23,  3.  S. 
E.  E.  (II.  L.)  250;  Qvelec  Mar.  Insur.  Co.,  1870,  L.  E.  3  P.  C.  234).  The 
seaworthiness  of  the  ship  at  the  commencement  of  the  voyage  is  presumed 
{Watso7i,  1813,  1  Dow,  336,  3  S.  E.  E.  (H.  L.)  85;  Darker,  supra;  Pickup, 
1878,  3  Q.  B.  D.  594);  but  if  she  become  unseaworthy,  shortly  after 
sailing,  without  any  apparent  cause,  the  presumption  will  be  altered,  and 
the  onus  thrown  on  the  owners  of  proving  her  seaworthiness  at  starting 
{Pickup,  supra).  If  the  warranty  is  not  complied  with,  the  insured  has  no 
action  on  the  policy,  and  it  is  no  iuiswcr  to  a  defence  of  unseaworthiness 
to  say  that  the  defect  was  remedied  after  sailing  and  before  the  occurrence 
of  the  loss  (Quebec  Mar.  hisur.  Co.,  supra).  It  is  of  course  competent  for 
parties  to  the  contract  to  dispense  witli  the  warranty  either  before  or  after 
its  breach,  or  to  limit  it  in  any  manner  they  may  please,  or  i'.a-  the  under- 
writers to  admit  the  seaworthiness  {Quebec  Mar.  Insur.  Co.,  supra).  But 
any  exception  in  this  res])ect  must  be  stated  in  very  express  and  clear 
terms  (see  supra). 

The  defence  of  unseaworthiness  to  an  action  on  the  ])olicy  must  be 
stated  specifically  in  order  to  entitle  the  defender  lo  a  ])ro()f  ^l  \i  {Balccr, 
1855,  17  D.  417). 

[Abbott  on    iSI/i/i/iing;    Carver   on    Carriage   hg  Sea;    Arnould,  Marine 
Insurance.]    See  Marine  Insurance. 


Secondary    Creditors. — See    Catholic    and    Skcondary 

CUEDITOKS. 


138  SECEETAEY  FOR  SCOTLAND 

Secretary  for  Scotland. — The  office  of  Secretary  for  Scot- 
land was  created  l)y  the  Secretary  for  Scotland  Act,  1885,  and  his  duties 
and  powers  defined  by  the  Secretary  for  Scothmd  Acts,  1885  and  1887. 

Sec.  2  of  the  former  Act  provides  that  "it  shall  be  lawful  for  Her 
Majesty  to  appoint  a  Secretary  for  Scotland,  .  .  .  who  shall  hold  office 
during''Her  Majesty's  pleasure."  A  salary  of  £2000  a  year  is  given,  and 
power  to  appoint  "  such  permanent  secretaries,  inspectors,  clerks,  and  other 
officers  as  he  may,  with  the  sanction  of  the  Treasury,  determine  "  (s.  2). 
He  may  sit  in  Parliament  (s.  3),  and  is  entitled  to  an  Official  Seal,  and  to 
the  style  and  title  of  "  the  Secretary  for  Scotland  "  (s.  4) ;  and  "  a  rule,  order, 
or  regulation  made  by  the  Secretary  shall  be  valid  if  it  is  made  under 
the  seal  of  the  secretary  and  signed  by  him,  or  by  any  secretary  or  other 
officer  appointed  by  him  for  that  pur]DOse  "  (ib.). 

Powers  and  Duties  of  Secretaries  for  Scotland  under  the  Ads  of  1885  and 
1887. — The  powers  and  duties  transferred  to  the  Secretary,  for  Scotland 
are  conferred  on  him  mainly  by  sec.  5  of  the  Act  of  1885 — a  schedule  at 
the  end  of  the  Act  containing  a  detailed  list  of  such  powers  and  duties. 
Thus  "  all  powers  and  duties  vested  in  or  imposed  on  one  of  Her  Majesty's 
principal  Secretaries  of  State  by  the  enactments  specified  in  Part  I.  of  the 
Schedule  to  this  Act,  and  ...  in  relation  to  the  universities  of  Scotland," 
are  transferred  to  him  (s.  5,  subs.  1).     All  the  powers  and  duties  vested 
in  or  imposed  on  the  Privy  Council,  the  Commissioners  of  Her  Majesty's 
Treasury,  or  the  Local  Government  Board  for  England,  so  far  assuch  duties 
and  powers  relate  to  Scotland  in  virtue  of  the  Acts  specified  in  Parts  XL, 
III,,  IV.,    of  the  Schedule,  are  likewise  transferred  (ih.,  subs,  and  2,  3). 
These  powers  were  extended  by  the  Secretary  for  Scotland  Act,  1887,  by 
which  the  whole  other  powers  and  duties  of  the  Secretary  of  State,  "  so 
far  as  such  powers  and  duties  relate   to  Scotland"  (s.  2,  subs.  1),  were 
transferred    to    the    Secretary   for    Scotland,   along   with   (subs.    2)   the 
powers  and   duties    imposed   on   the    Commissioners    of    Her    Majesty's 
Treasury  under  the  Valuation  of  Lands  (Scotland)  Act,  1854,  and  (subs.  3) 
the  powers   and  duties  vested  in  and  imposed  upon  the  Board  of  Trade 
"  relating  to  provisional  orders  dealing  witli  any  of  the  subjects  transferred 
to  the  Fishery  Board,  Scotland,  by  sec.  11  of  the  Sea  Fisheries  (Scotland) 
Amendment  Act,  1885.    Further,  by  sec.  6  of  the  Act  of  1885,  the  Secretary 
is  appointed  Vice-President  of  the  Scotch  Educational  Department,  whose 
powers,  constituted  under  the  Education  (Scotland)  Act,  1872,  are  transferred, 
vested  in,  and  imposed  on  the  Scotch  Educational  Department  constituted 
under  this  Act  (s.  7).    He  is  also  appointed  Keeper  of  the  Great  Seal  (s.  8). 
Under  the  Local  Government  Acts,  1889  and  1894.— Under  the  Local 
Government  Act  of  1889,  the  Secretary  has  important  powers  and  duties 
conferred  on  him  in  regard  to — First,  the  constitution  and  powers  of  the 
County  Councils  created  by  that  Act.    Thus  he  has  (s.  5)  power  to  determine 
the  number  of  councillors  to  be  elected  to  a  County  Council,  and  to  apportion 
them  between  the  county  and  each  of  the  burghs  entitled  under  the  Act  to 
be  represented  on  the  Council.    Further,  by  provisional  order  he  may  (s.  15, 
subs.  1)  transfer  to  the  County  Council  such  powers,  duties,  and  liabilities 
of  any  Government  Department  or  public  body  "  as  are  conferied  by  or  in 
pursuance  of  any  statute,"  and  "  appear  to  relate  to  matters  arising  within 
the  county."     The  provisional  orders,  however,  must  (subs.  2)  be  approved 
by  the  Government  Department  or  public  body  in  question,  and  "shall 
be  of  no  effect  until  it  is  confirmed  by  Parliament."     Second,  In  regard  to 
the  financial  relations   between   the  Exchequer  and  the   county,   he   has 
(s.  22)  under  his  direction  the  application  of  all  sums  paid  to  the  Local 


SECUEITIES  139 

Taxation  (Scotland)  Account ;  and  (s.  24,  sulis.  2)  if  in  any  year  tlie 
moneys  standing  to  such  account  are  insufticient  to  meet  the  sums  he 
may  consider  proper  to  pay  thereont,  he  is  empowered  under  certain 
restrictions  to  borrow  such  sums  as  he  requires  to  meet  the  deficiency. 

Various  other  powers  are  conferred  on  him  rehitive  to  the  election 
of  County  Councils  (s.  3G);  in  connection  with  the  Boundary  Commissioners 
(s.  49,  subs.  4  and  5,  and  s.  51)  as  amended  by  sec.  46  of  the  Local 
Government  Act,  1894  ;  in  regard  to  the  powers  of  County  Councils  to 
enforce  the  provisions  of  the  Eivers  Pollution  Prevention  Act,  1876 
(s.  55,  subs.  3  and  4),  and  to  make  by-laws  (s.  57,  subs.  4  and  6) ;  and 
in  regard  to  their  powers  of  borrowing  and  the  auditing  of  their  expenditure 
(ss.  6°7,  69,  and  70,  subs.  5,  6,  7,  8,  9). 

Further,  by  sec.  4  of  the  Local  Government  (Scotland)  Act,  1894,  the 
Secretary  for  Scotland  is  appointed  the  President  of  the  Local  Government 
Board. 

Cases  in  which  the  jDrovisional  orders  issued  by  the  Secretary  for 
Scotland  in  virtue  of  the  powers  conferred  on  him  by  the  various  Acts 
have  been  reviewed  by  the  Court,  are  few  in  number.  In  the  case  of  the 
Eastern  District  Committee  of  Dumbartonshire  County  Council  Police 
Commissioners  of  Clydebank  (1893,  21  R  12),  a  determination  of  the 
Secretary  under  sec.  81,  subsec.  2,  of  the  Local  Government  Act,  1889,  was 
held  to  be  ultra  vires,  and  reduced.  Again,  in  Seaton  parish  council  of 
Arbroath  and  St.  Vigeans  (1896,  23  Pi.  763),  an  order  of  the  Secretary  for 
Scotland  under  sec.  51  of  the  Local  Government  Act,  1889,  and  of  sees.  46 
and  51  of  the  Local  Government  (Scotland)  Act,  1894,  which  united  the 
parishes  of  Arbroath  and  St.  Vigeans  and  declared  that  the  former  parish 
councils  should  cease,  was  held  to  validly  transfer  the  inspectors  of  the 
jjre-existing  parishes  to  the  new  parish  council. 

Securities. — The  methods  of  constituting  a  security  over  par- 
ticular subjects,  and  the  forms  of  impignoration  which  are  recognised  by  the 
law  of  Scotland,  are  dealt  with  in  other  parts  of  this  work,  lieference  may 
be  made  to  the  following  articles  : — Absolute  Disposition  with  Back-Bond ; 
Assignation;  Bill  of  Lading;  Blank  Transfers;  Bond  and  Disposition  in 
Security;  Document  of  Title;  Heritable  Securities;  Hypothec;  Lien; 
Negotiable  Instruments;  Pledge;  Petention;  Wadset.  In  the  following 
pages  an  attempt  is  made  to  state  the  general  principles  applicable  to  all 
security-contracts,  in  so  far  as  these  are  independent  of  the  particular 
subject  conveyed,  or  the  particular  form  employed.  This  is  dealt  with  in 
the  following  order : — 

Definition  of  a  riglit  in  security. 

Ileal  and  personal  rights. 

Incom])letc  securities. 

Competent  forms. 

Securities  by  ex  facie  absolute  and  ex  facie  qualified  title. 

Subjects  which  may  form  a  riglit  in  security. 

liiglits  of  creditor  and  del)toi'. 

Securities  in  competition  with  diligence. 

Securities  in  bankruptcy. 

Valuation  and  deduction  of  securities. 
Definition. — Under    the   general    phrase   "right    in    security"    may  be 
included  any  right  of  a  creditor  for  the  recovery  of  his  delit  in  addition  to 
the  rights  which  he  possesses  in  common  with  the  general  body  of  creditors. 


140  SECURITIES 

Such  a  right  may  consist  in  a  real  right  over  a  subject  of  property  conveyed 
to  the  creditor,  or  in  a  nexus  obtained  by  the  use  of  diligence,  or  in  the 
personal  obligation  of  a  third  party,  undertaken  as  a  cautionary  obligation 
or  guarantee.  In  all  these  cases  the  secured  creditor  is  placed  in  a  position 
of  advantage  over  the  general  creditors  of  his  debtor,  if  such  exist,  and  has 
a  means  of  recovering  his  debt  in  addition  to  the  ordinary  rights  of  action 
and  of  diligence  which  are  open  to  all  alike.  The  position  of  a  secured 
creditor  may  be  obtained  by  express  contract,  whereby  a  security  is  directly 
conveyed  or  a  cautionary  olDligatiou  undertaken ;  it  may  arise  from  contract 
implied  by  law,  when  circumstances  admit  of  a  plea  of  retention,  lien,  or 
hypothec ;  or  it  may  arise  by  the  use  of  diligence,  whereby  a  particular 
subject  is  attached  by  an  individual  creditor,  or  by  a  particular  body  of 
creditors,  in  security  of  his  or  their  debt. 

The  variety  and  complexity  of  rights  in  security  make  it  difficult  to  fix 
any  characteristics  as  distinguishing  all  such  rights,  except  the  point  above 
remarked,  that  they  are  rights  giving  a  particular  creditor  a  position  of 
advantage  over  the  general  body  of  creditors,  and  the  further  point  that  a 
right  in   security  is  of  its  essence   a   subsidiary  or  accessory  right,  and 
requires  for  its  existence  a  principal  obligation.     A  security  cannot  exist 
unless  there  is  a  debt,  or  other  obligation,  to  be  secured.     Thus  one  criterion 
by  which  a  cautionary  may  be  distinguished  from  an  independent  and 
separate  obligation  is  the  existence  of  an  obligation  by  a  principal  debtor 
{Lakeman,  1874,  L.  R.  7  H.  L.  17);  and  the  extinction  of  that  obligation, 
even  although  it  is  merely  exclianged  for  another  debt,  relieves  the  cautioner 
from   liability  (Ersk.   iii.  3.  (dQ;  Commercial  Bank,  [1893]  App.  Ca.  313). 
Similarly,  a  heritable  security,  though  duly  constituted  a  burden  on  land, 
falls  to  the  ground  as  soon  as  the  debt  for  which  it  is  constituted  is  paid, 
and  a  plea  that  such  a  security  is  extinguished  by  compensation  of  the  debt 
may  be  stated  in  a  question  with  the  assignee  to  whom  the  security  has 
been  transferred,  provided  that  the  concursus  crediti  ct  dehiii  arose  before 
the  original  debtor  was  divested,  and  the  title  of  the  assignee  completed,  by 
infeftment  on   the  assignation  (Eanken,  1680,  2    Eoss'  L.  C.  707 ;  Shiells, 
1876,  4  11.  250 ;  MacCutcheon,  1876,  3  E.  565).     It  would  seem  to  follow 
that  a  real  burden  on  lands,  in  cases  where  no  personal  obligation  is  under- 
taken, is  not,  strictly  speaking,  a  security,  but  an  independent,  though  sub- 
ordinate, estate  in  land.     But  an  absolute  conveyance  of  property,  subject 
to  an  obligation  to  reconvey,  may  be  in  effect  though  not  in  form  a  security 
even  altliough  tliere  is  no  debt  on  which  the  creditor  could  sue  {Robertson, 
1896,  24  R  120). 

A  Personal  Obligation  is  not  a  Security. — The  meaning  of  a  security,  as 
indicated  above,  is  at  variance  with  the  popular  usage  of  the  word,  by 
w^hich  such  documents  as  a  personal  bond,  a  promissory  note,  or  an  I.  0.  U. 
are  spoken  of  as  securities.  It  is,  however,  obvious  that  such  documents, 
while  they  are  acknowledgments,  and  may  be  evidence  of  a  debt,  are  not 
securities  for  it.  They  infer  no  special  or  preferential  right :  nothing 
but  a  right  to  payment  from  the  debtor,  w^hich  every  creditor  has.  Thus  it 
was  held  that  a  creditor  claiming  in  a  sequestration,  and  bound,  as  a 
condition  of  his  claim,  to  specify  all  securities  held  by  him,  w^as  not  bound 
to  specify  among  such  securities  a  promissory  note  granted  to  him  by  the 
debtor  (Boive,  1  June  1811,  F.  C).  Again,  an  obligation  on  the  part  of  a 
debtor  to  pay  his  del)t  in  a  particular  way,  or  out  of  a  particular  fund,  or  in 
priority  to  other  creditors,  is  only  a  personal  obligation  of  the  debtor,  and  not 
a  security,  and  therefore  gives  the  apparently  favoured  creditor  no  prefer- 
ence whatever  in  any  distribution  of   the  debtor's  assets  {Graham  &  Co., 


SECUEITIES  141 

1895,  23  E.  84).  A  personal  bond  or  promissory  note,  however,  is  obviously 
a  security  if  another  person  besides  the  debtor  is  thereby  bound,  and,  even 
without  such  accessory  obligation,  may  be  the  subject  of  a  security  if  the 
person  to  whom  it  is  granted  transfers  it  to  a  creditor  of  his  own. 

Suhjeds  assignable  in  Security. — The  subject  of  a  security  may  Ije  the 
obligation  of  a  third  party,  or  it  may  be  a  subject  of  property.  Any 
property,  corporeal  or  incorporeal,  may  be  conveyed  in  security  or  attached 
by  diligence  so  as  to  give  the  person  to  whom  it  is  conveyed,  or  the  creditor 
who  has  used  the  diligence,  a  preferential  right,  provided  that  it  is  alienable 
or  assignable.  Certain  subjects  of  property,  for  instance,  buildings 
dedicated  to  public  purposes,  and  certain  incorporeal  rights,  such  as  an 
alimentary  fund  or  a  contract  involving  the  element  of  delectus  -personce,  are 
not  transferable.  Such  subjects  cannot  be  attached  by  diligence ;  and  if  a 
security  is  constituted  over  them  it  would  not  confer  on  the  party  in  whose 
favour  it  was  granted  any  preferential  right  {Christie,  1862,  24  D.  1182; 
Grcenoch  Harbour  Trs.,  1888,  15  E.  343).  Thus  "the  composite  heritage 
called  a  railway  is  not  liable  to  be  attached  by  adjudication  for  debt " 
(per  Ld.  Pres.  Inglis  in  Glovers  Trs.,  1869,  7  M.  338).  And  where  bonds 
issued  by  a  statutory  body  incorporated  to  carry  on  a  harbour  contained 
an  assignation  of  the  "  harbour  and  works,"  it  was  held  that  the  assignation 
was  entirely  ineffectual,  that  it  did  not  give  the  bondholder  any  available 
rights  over  the  harbour,  and  that  bonds  which  contained  it  had  no  prefer- 
ence over  bonds  which  did  not  {Greenock  Harhour  Trs.,  supra).  But  a 
subject  may  be  assigned  in  security  even  although  it  is  not  in  existence  at 
the  time  of  the  assignation,  and  the  right  of  the  creditor,  if  duly  completed, 
will  ]je  effectual  when  it  comes  into  existence  {Black,  1867,  6  M.  136; 
Tailhi/,  1888,  App.  Ca.  523).  Thus  in  an  English  case  it  was  held  that  an 
assignation  of  "  all  the  book  debts  due  and  owing,  or  which  may  during  the 
continuance  of  the  security  become  due  and  owing  ...  to  the  said  mortgagor," 
was  a  good  security,  and  gave  the  assignee  a  right  over  future  l)ook  debts,  on 
his  intimating  his  claim  to  the  persons  who  were  under  ol)ligation  to  pay 
them,  which  was  preferable  to  the  right  of  the  OlUcial  Eeceiver  in  the 
debtor's  Ijankruptcy  ( Tailhy,  siqjra). 

Elements  in  Constitution  of  a  Security. — The  constitution  of  a  voluntary 
right  in  security  over  property  requires,  except  in  a  few  special  instances, 
two  elements :  tlie  personal  contract  to  give  a  security  (either  express,  or  in 
some  instances,  implied  by  law),  and  the  transfer  to  the  creditor  of  a  real 
right  in  the  subject,  by  some  method  recognised  by  law  as  appropriate  for 
tlie  constitution  of  real  rights  in  that  particular  class  of  property.  Thus 
in  the  case  of  heritable  property,  a  security  requires  inferiment;  in  the 
case  of  corporeal  moveables,  delivery  of  the  subject ;  in  the  case  of  incor- 
poreal rights,  intimation ;  in  the  case  of  negotiable  instruments,  transfer  of 
the  instrument.  If  tlie  ap])ropriate  form  of  transfer  is  not  adopted,  the 
Bccurity,  tliougli  possibly  good  in  a  question  with  the  debtor  or  his  repre- 
sentatives (a  question  which  can  rarely  be  of  much  practical  importance),  is 
of  no  effect  in  a  question  with  other  creditors.  The  law  of  Scotland  does 
not  admit  of  the  constitution  of  real  riglits  over  pro]»('rty  1)y  mere  contract. 
Thus  Ld.  Stair,  after  stating  tlie  rules  of  the  civil  law  with  regard  to 
express  and  tacit  hypotliecs,  proceeds  as  follows :  "  Our  custom  hath  taken 
away  express  hypothecations  of  all.  (>i-  ])art,  of  tlie  debtor's  goods,  without 
delivery, and  of  the  tacit  legal  liypotliecatioiis  hath  only  allowed  a  few,  allow- 
ing ordinarily  parties  to  be  preferred  according  to  the  jtriority  of  tlieir  legal 
diligence,  that  commerce  may  be  the  more  sure,  and  every  one  may  more 
easily   know   his   condition   with    whom    he   contracts "  (Stair,  i.    13.  14. 


142  SECUEITIES 

The  same  principle  is  laid  clown  by  Erskine,  iii.  1.  34,  and  Bell, 
Prill,  p.  1385;  Com.  ii.  2G).  This  principle  was  illustrated  when  it  was 
held  that  debentures  issued  by  a  company,  and  framed  as  a  kind  of  floating 
security  over  the  company's  assets,  without  any  completed  conveyance  of 
specific  property  to  a  trustee  for  the  debenture-holders,  was  of  no  use  as 
a  security,  and  left  the  debenture-holders  simply  in  the  position  of  ordinary 
creditors  in  a  question  with  the  liquidator  of  the  company  (Clark,  1882, 
9  E.  1017). 

Distinctions  hetween  Personal  Obligation  and  Incomplete  Security. — Though 
a  creditor  does  not  obtain  a  completed  security  unless  he  is  invested  with  a 
real  right  to  the  subject  conveyed,  there  is  a  distinction  between  (1)  a  mere 
obligation  to  give  a  security,  (2)  an  obligation  to  give  a  specific  subject  in 
security,  and  (3)  a  security  duly  given  by  the  debtor,  but  not  completed  by 
the  creditor.  The  distinction  is  of  importance  mainly  in  questions  relating 
to  securities  completed  within  the  period  of  constructive  bankruptcy  estab- 
lished by  the  Act  1696,  c.  5,  and  (in  relation  to  deceased  debtors)  by  sec. 
110  of  the  Bankruptcy  Act,  1856  (see  Bankeuptcy).  It  is  thought  that  a 
mere  obligation  to  give  security  for  a  debt  can  only  be  completed  while  the 
debtor  is  solvent,  and  will  be  reducible  if  completed  by  the  conveyance  of  a 
particular  subject  within  sixty  days  of  the  debtor's  bankruptcy  (Bell,  Com. 
ii.  211;  Bose,  1868,  6  M.  960;  Stiven,  1871,  9  M  923;  Gourlay,  1875, 
2  E.  738).  On  the  other  hand,  if  the  debtor  has  done  all  that  lies  in  his 
power  to  complete  the  security  before  the  sixty  days,  the  security  will  not 
be  reducible  because  the  creditor  has  delayed  taking  the  formal  steps  for  its 
completion  till  within  that  period  {Scottish  Provident  Inst.,  1888,  16  E.  112 ; 
Guild  {Kettle's  Tr),  1884,  22  S.  L.  E.  520).  The  case  which  presents  diffi- 
culties is  that  where  an  obligation  to  give  a  specific  subject  in  security  has 
been  undertaken,  but  has  not  been  carried  out  by  the  debtor  till  within  sixty 
days  of  his  bankruptcy.  The  rule  has  been  stated  by  Professor  Bell  in  the 
following  terms :  "  Wherever  money  is  paid  or  advanced,  or  property  made 
over,  in  consideration  of  a  general  promise  of  security  not  over  a  specific 
subject,  the  distinction  is  sanctioned  between  the  debt  and  the  security  sub- 
sequently granted ;  and  in  its  true  intention  and  meaning  the  rule  of  the 
statute  {i.e.  of  the  Act  1696,  c.  5)  is  understood  to  apply  to  the  security,  when 
it  comes  to  be  granted,  as  being  truly  in  security  for  a  previous  debt.  But 
it  has  also  been  held  that  wherever  there  is  stipulated  a  specific  security 
over  a  jDarticular  subject,  in  consideration  or  on  the  faith  of  which  an 
advance  of  money  or  a  transfer  of  goods  is  made,  the  completion  of  that 
security,  though  after  an  interval  of  time,  and  after  the  term  of  constructive 
bankruptcy  has  begun,  is  not  within  the  intent  and  meaning  of  the  Act." 
While  there  are  undoubtedly  cases  in  which  the  security  was  reduced 
which  are  very  difficult  to  reconcile  with  the  principle  expressed  in  this 
passage  {Inglis,  1833, 11  S.  813  ;  affd.  1  S.  &  M.  204  ;  Moncrciff,  1851,  14  D. 
200;  Gourlay,  1887,  14  E.  403),  it  is  in  accord  with  what  may  be  regarded 
as  the  leading  case  on  the  subject  {Taylor,  1855,  17  D.  639),  and  with  the 
most  recent  decision  {Coivdenleath  Coal  Co.,  1895,  22  E.  682). 

Recognised  Methods  of  Conveyance  must  he  folloived. — Again,  as  particular 
methods  have  been  recognised  as  appropriate  for  the  transference  of  parti- 
cular kinds  of  property,  a  security  cannot  be  effectually  constituted  except 
by  the  use  of  such  method.  Thus  where  it  was  attempted  to  make  a  security 
over  moveables,  without  delivery,  by  taking  sasine  in  the  hands  of  a  notary,  on 
the  model  of  the  form  then  appropriate  for  the  conveyance  of  heritable 
property,  it  was  held  that  no  real  right  or  security  had  been  constituted 
{Stiven  {Watsmis  Tr.),  1878,  15  S.  L.  E.  422).     And  where  an  attempt  was 


SECURITIES  U3 

made  to  create  an  equitable  mortgage  over  land  by  depositing  the  title 
deeds  with  a  creditor,  it  was  held  not  only  that  no  right  to  the  land  could 
be  acquired  in  this  ^Yay,  but  that  the  depositary  could  not  assert  any  right 
to  retain  the  title  deeds  in  a  question  with  a  purchaser  of  the  la.nds  {Christie, 
1862,  24  D.  1182).  A  very  strong  illustration  of  this  principle  is  found  in 
a  case  where  the  magistrates  of  a  burgh,  in  granting  a  burgage  holding, 
stipulated  for  an  annual  payment  in  name  of  feu-duty.  It  was  held  (1) 
that  a  feu-duty  could  not  be  created  in  a  burgage  holding,  and  (2)  that  the 
words  did  not  make  the  obligation  a  real  burden.  Consequently  it  was 
held  that  the  deed,  though  inferring  a  personal  obligation,  did  not  create 
any  real  security  for  it  {Magistrates  of  Arhroatli,  1872,  10  M.  630). 

Statutory  Forms  arc  not  Obligatory. — In  regard  to  certain  subjects  the 
Legislature  has  provided  forms  by  which  a  security  may  be  constituted. 
These  forms,  however,  are  not  exclusive  of  other  methods,  and  although,  in 
order  to  avoid  question,  they  should  invariably  be  followed,  yet  securities 
in  other  forms,  provided  that  they  are  sufficient  and  appropriate  at  common 
law  to  confer  upon  a  creditor  a  real  right  over  the  subject  in  question,  will 
be  effectual.  Thus  although  a  heritable  security,  as  above  stated,  cannot 
be  constituted  by  mere  deposit  of  the  title  deeds  {Christie,  supra),  yet  it  can 
be  constituted  or  transferred  by  deeds  which  do  not  follow  the  ordinary  or 
the  statutory  model  {MacCutchcon,  1876,  3  E.  565).  And  although  forms  for 
the  mortgage  of  ships,  and  a  register  for  such  mortgages,  have  been  estab- 
lished by  the  Merchant  Shipping  Act,  1894,  and  the  statutes  which  pre- 
ceded it,  yet  it  has  been  held  that  a  security  by  an  ordinary  assignation, 
followed  by  possession,  though  it  was  not,  and  indeed  could  not,  be  registered, 
was  nevertheless  a  valid  security  {Watson,  1879,  6  R.  1247). 

Securities  not  requiring  Possession. — To  the  rule  that  a  security  over 
property  must  be  constituted  by  some  method  by  which  a  real  right  may 
be  transferred,  there  are  certain  exceptions.  In  a  few  cases  the  law  of 
Scotland  admits  of  a  hypothec,  or  security  without  possession  of  the  subject. 
These  cases  have  been  already  dealt  with  in  the  article  on  Hypothec. 
Also,  where  a  statute  expressly  authorises  a  company  or  a  corporation  to 
Ijorrow  money  in  a  particular  way,  and  to  grant  securities  for  it  in  a  special 
form,  these  securities  may  be  good  even  although  their  form  would  not,  at 
common  law,  vest  a  real  right  to  any  subject  in  the  creditor.  Eor  in  the 
case  of  securities  of  this  kind  the  criterion  of  validity  is  not  whether  a  real 
right  over  a  particular  subject  has  been  granted  to  the  creditor,  but 
whether  the  forms  prescribed  by  the  particular  statute  have  been  observed. 
If  they  have,  the  security  confers  upon  its  holder  a  statutory  preference 
{Clark,  1882,  9  E.  1017;  Greenock  Harloitr  Trs.,  1888,  15  E.  343). 
Securities  of  tliis  kind  are  usually  issued  either  by  companies  incorporated 
under  the  Companies  Clauses  Acts,  or  by  corporations  or  local  authorities 
having  express  statutory  powers. 

The  particular  methods  a])plicable  to  the  constitution  of  securities  over 
X)articular  subjects  of  property  have  already  been  dealt  with  in  a  variety 
of  articles,  a  reference  to  which  is  given  at  the  commencement  of  this 
article.  It  is  not  therefore  proposed  to  treat  in  the  present  article  of  the 
specialties  either  in  regard  to  the  constitution  of  the  security,  or  in  regard 
to  the  rights  of  the  parties,  which  result  from  the  particular  character  of 
the  subject  conveyed.  It  is  rather  proposed  to  deal  with  those  points 
which  are  regulated,  not  by  the  particular  8ul>ject  conveyed,  but  by  the 
measure  of  the  right  over  the  subject,  of  whatever  nature  it  may  be,  given 
to  the  creditor. 

Conveyances  ex  facie  Absolute  and  in  Security. — Tlie  result  of  a  conveyance 


U4  SECUEITIES 

or  assignation  intended  to  form  a  security  may  either  be  to  invest  the  creditor 
with  a  title  of  property  in  a  subject,  or  merely  with  a  right  of  possession. 
In  other  words,  it  may  take  the  form  either  of  an  ex  fade  absolute  con- 
veyance or  transfer,  subject  to  an  obligation  to  reconvey,  or  of  a  con- 
veyance or  transfer  expressly  in  security.  Thus  in  the  case  of  securities 
over  heritable  property,  the  wadset  in  the  older  form  of  conveyancing,  and 
the  absolute  disposition  with  back-bond  in  the  modern  form,  confer  upon 
the  creditor  an  ex  facie  absolute  title  to  the  subject  conveyed  in  security, 
whereas  the  bond  of  annualrent,  and  the  bond  and  disposition  in  security, 
only  confer  on  the  creditor  a  title  of  possession.  The  same  distinction  may 
be  observed  in  the  conveyance  in  security  of  such  incorporeal  subjects  as  a 
policy  of  insurance.  In  the  case  of  subjects,  such  as  moveable  goods,  which 
are  not  transferred  by  written  title,  the  distinction  is  less  obvious,  but  may 
in  certain  cases  be  of  importance.  Thus  in  the  ordinary  case  of  pledge  of 
moveables,  only  a  right  of  possession  and  not  of  property  is  given;  but 
where  a  security  was  constituted  by  transferring  the  document  of  title  to 
goods,  and  intimating  the  right  of  the  transferee  to  the  keeper  of  the 
warehouse  in  which  the  goods  were,  it  was  held  that  the  result  of  this 
procedure  was  to  vest  in  the  transferee  not  merely  a  right  of  pledge,  but  an 
absolute  title  of  property  {Hamilton,  1856,  19  D.  152). 

Scope  of  Security  depends  on  Title. — This  distinction  is  not  merely  formal, 
but  has  important  practical  effects.  Of  these  perhaps  the  most  important 
is  the  scope  of  the  security  with  regard  to  debts  not  expressly  stated  to  be 
secured  by  it.  It  may  be  taken  as  the  general  rule  that  in  the  absence  of 
an  express  contract,  a  security  which  confers  only  a  right  of  pledge  will 
only  cover,  in  a  question  with  other  creditors,  or  with  third  parties  who 
have  acquired  real  rights  in  the  subject,  the  debts  in  security  of  which  it 
was  expressly  granted.  In  the  case  of  heritable  securities  this  principle  is 
arrived  at  on  the  ground  that  there  cannot  be  an  indefinite  burden  upon 
lands  {Steins  Creditors,  1789,  Mor.  1158  and  1236;  1793,  Mor.  14127; 
affd.  3  Pat.  345  ;  Menzies,  Conveyancing,  p.  842).  In  securities  over  subjects 
not  heritable,  the  same  result  has  been  arrived  at,  on  grounds  which  may 
be  explained  in  the  words  of  Ld.  Justice-Clerk  Inglis,  as  follows :  "  Now, 
in  every  case  of  retention,  the  first  and  most  important  query  is,  what  is 
the  title  on  which  the  party  has  attained  the  possession  which  he  proposes 
to  hold  till  his  debt  is  paid,  for  this  title  of  possession  furnishes  the  precise 
measure  of  the  right  of  retention  ?  If  the  title  of  possession  be  unlimited, 
as  a  title  of  property,  the  party  is  entitled  to  retain  till  every  debt  due 
by  the  party  demanding  delivery  of  the  subject  is  paid.  If  his  title  be 
limited,  be  can  retain  only  for  the  payment  of  that  particular  debt  which 
is  secured  by  his  possession.  This  is  very  well  settled  law  "  {National  Bank, 
1858,  21  D.  79,  at  p.  85).  When  an  absolute  title  of  property  is  conferred 
on  the  security-holder,  and  there  is  no  direct  restriction  as  to  the  debts 
thereby  secured,  the  liolder  may  retain  for  all  debts  incurred  after  he 
obtained  the  security  {Hamilton,  1856,  19  D.  152 ;  Nelson,  1874, 1  E.  1093). 
Debts  incurred  before  the  security  was  granted  are,  it  is  thought,  net 
covered;  at  least,  if  the  security  is  constituted  by  a  disposition  with  a 
written  back-bond,  and  an  already  existing  debt  is  not  mentioned  tlierein, 
there  is  a  strong  presumption  that  the  security  was  not  intended  to  cover 
that  debt  {liolertson,  1840,  2  D.  279).  Further  discussion  of  this  subject 
will  be  found  in  the  article  on  Eetention. 

Right  to  Eealise. — A  further  distinction  between  a  security  ^\hicll 
confers  a  title  of  property,  and  a  security  which  confers  only  a  title  of 
^oossession,  is  found  in  the  authority  given  to  the  holder  to  realise  Ib.e 


SECUEITIES  145 

subject  of  his  security.  A  party  to  whom  an  absolute  conveyance  has  been 
granted,  has  an  apparent  authority  to  sell  which  will  validate  any  sale  by 
him  if  the  purchaser  took  in  good  faith  and  without  notice  of  any  back- 
bond or  back-letter  {Eedfearn,  1805,  Mor.  App.  v.  "  Pers.  and  Eeal,"  No.  3 ; 
rev.  1813,  5  Pat.  V07 ;  Heritable  Reversionary  Co.,  1891, 18  Pi  1116  •  rev' 
1892,  19  E.  (H.  L.)  43;  Baillie,  1884,  12  E.  199;  Duncan,  1893,  21  E.  37)'. 
If  the  sale  is  in  fact  a  violation  of  his  contract  with  the  party  who  granted 
the  security,  the  seller  is  liable  in  damages,  but  the  sale  cannot  be  reduced 
{Duncan,  supra).  On  the  other  hand,  if  a  security  confers  only  a  right  of 
pledge,  the  creditor  can  only  realise  either  in  virtue  and  in  terms  of  an 
express  power  of  sale,  or  by  obtaining  the  authority  of  a  competent  Court 
(Bell,  Prin.  s.  207). 

What  Subjects  may  be  conveyed  in  Security. — Before  entering  into  the 
further  consideration  of  the  rights  of  the  parties  to  a  security,  when  duly 
constituted,  inter  se,  and  in  questions  with  third  parties,  it  is  proposed  to 
indicate  certain  points  which  should  be  noted  by  the  conveyancer  when 
called  upon  to  consider  whether  a  particular  subject  is  capable  of  being 
conveniently  assigned  in  security.  In  such  cases,  assuming  that  there  is 
no  doubt  that  the  party  proposing  to  borrow  has  a  good  title  to  the  subject 
he  offers  as  security,  there  are  two  questions  to  be  considered :  (a)  whether 
the  subject  is  assignable,  and  (b)  assuming  that  it  is,  whether  the  form  of 
the  law  of  Scotland  admits  of  its  being  assigned  in  a  manner  which  will 
accomplish  the  objects  of  the  parties,  and  will  not  involve  the  lender  in 
any  extraneous  liability.  The  answer  to  the  first  question  is  dealt  with  in 
the  article  on  A.ssignation  ;  a  few  remarks  on  the  second  may  1)e  offered 
here.  In  considering  the  question  it  is  assumed  that,  although  occasionally 
a  risky  security  may  be  taken  in  the  absence  of  any  other,  it  is  as  a  rule 
not  the  desire  of  the  lender  of  money  to  involve  himself  in  an  action  with 
the  trustee  in  the  borrower's  bankruptcy  in  order  to  vindicate  his  security, 
even  althougli  the  result  of  that  action  might  be  to  solve  some  point  of  law 
as  yet  undecided,  or  though  the  existing  authorities  might  lead  his  advisers 
to  conclude  that  the  action  would  probably  be  successful. 

The  points  which  must  be  considered  when  a  cautionary  oliligation,  or 
a  heritable  security,  is  proposed,  have  already  been  dealt  with,  and  need 
not  be  repeated  here.  See  Cautionary  Obligations  ;  Bond  and  Disposi- 
tion IN  Security. 

Moveables — Furniture, Machinery. — Tndealingwitlisccuritiesovcr  moveable 
property  no  diiliculty  arises  where  the  subject  can  be  transferred  into  the 
actual  jiossession  of  the  creditor.  "When,  liowevcr,  a  man  desires  to  borrow 
money  on  sucli  subjects  as  his  furniture,  the  moveable  machinery  in  a  mill, 
tlic  stock-in-trade  of  a  shop,  or  the  stocking  of  a  farm,  without  depriving 
himself  of  the  use  of  the  subject  by  actually  transferring  it  to  the  creditor, 
great  difficulty  is  experienced  in  devising  any  form  which  will  give  the 
creditor  an  available  security.  It  is  Ijclieved  tliat  in  such  cases  no  form  of 
security  can  be  devised  which  will  secure  the  creditor  against  tlie  risk  of 
tlie  debtor  proceeding  to  sell  the  subjects.  lie  could  not  compete  with  a 
bond  fide  jmrchaser  {Lirj.  of  Brechin  Auction  Mart  Co.,  1895,22  E.  7U). 
Such  a  sale,  however,  would  imply  a  fraud  upon  the  part  of  the  debtor, 
and  it  has  been  remarked  that  in  practice  a  man  in  taking  a  security  desires 
to  protect  hin)sclf  against  the  risk  of  his  debtor's  insolvency,  and  not 
against  the  risk  of  his  fraud;  and  therefore  a  security  which  would  give 
the  creditor  a  preference  in  the  event  of  liis  debtor's  bankruptcy  might 
serve  all  practical  purposes,  even  altliougli  it  left  the  creditor  exiiosed  to 
the  risk  of  losing  liis  security  by  a  fraudulent  sale.    In  constituting  securities 

8.  E. — VOT,.  XI.  10 


146  SECUEITIES 

of   this  nature  advantage  could  until   recently  have   been  taken   of   the 
provisions  of  sec.  1  of  the  Mercantile  Law  Amendment  (Scotland)  Act,  1856, 
by  which  it  was  declared  that  where  goods  were  sold  but  not  delivered  they 
should  no  longer  be  open  to  the  diligence  of  the  seller's  creditors,  or  ]Dass  to 
his  trustee  on  bankruptcy.     These  provisions  did  not  apply  to  securities, 
but  they  left  it  open  to  a  borrower,  while  the  section  was  in  force,  to  attain 
the  object  of  giving  a  security  by  a  sale  with  a  reserved  power  of  re- 
purchase.    In  the  case  of  MBciin  opinions  were  expressed  in  the  House  of 
Lords  that  this  section  was  applicable  even  if  the  sale  were  entered  into  for 
the  purpose  of  creating  a  security,  and  even  although  there  was  an  obligation 
on  the  part  of  the  nominal  purchaser  to  account  to  the  seller  for  any  jDrofits 
he  might  make  on  a  re-sale  {MBain,  1881,  8  E.  360  ;  affd.  8  K.  (H.  L.)  106). 
Following  on  these  expressions  of  opinion,  the  device  of  an  ex  facie  sale  was 
tried  in  several  cases,  with  varying  success  {Allan  &  Co.'s  Tr.,  1883,  10  E. 
997;  Darliwj,  1887,  15  E.  180;  Scath  &  Co.,  1884,  12  E.  260;  affd.  1886, 
13  E.  (H.  L.)  57  ;  FcUtison's  Tr.,  1893,  20  E.  806 ;  ZiddeU's  Tr.,  1893,  20  E. 
989).     It  is  probably  unnecessary  now  to  enter  mto  any  discussion  of  these 
cases,  because  the  section  mainly  at  issue,  sec.  1  of  the  Mercantile  Law 
Amendment  Act,  1856,  has  been  repealed  by  the  Sale  of  Goods  Act,  1893. 
The  provisions  of  the  latter  Act,  hj  which  the  property  in  goods  sold  may 
pass  to  the  purchaser  without  delivery,  are  declared  not  to  extend  "  to  any 
transaction  in  the  form  of  a  contract  of  sale  which  is  intended  to  operate 
by  way  of  mortgage,  pledge,  charge,  or  other  seciu-ity  "  (s.  61,  subs.  4).     On 
this  section  it  has  been  held  that  an  ex  facie  sale,  not  followed  by  delivery, 
and  proved  to  have  been  intended  to  operate  as  a  security,  did  not  give  the 
nominal  purchaser  any  right  to  the  goods  on  the  bankruptcy  of  the  seller 
{Robertson,  1896,  24  E.  120).    It  would  therefore  appear  that  securities  in  the 
form  of  a  sale  cannot  now  be  completed  without  delivery  of  the  subject,  and 
therefore  that  a  man  cannot  now  pledge  the  furniture  in  his  house,  and  yet 
remain  in  possession  of  it.     A  similar  result  may  be  arrived  at  with  regard 
to  the  stock-in-trade  of  a  shop  {BUncl's  Tr.,  1891,  18  E.  623 ;  Patersons 
Tr.,  1891,  29  S.  L.  E.  87),  or  the  stocking  of  a  farm  {Johnston,  1814,  Hume, 
448;    If  Gavin,   1891,   18   E.    576).     Moveable   machinery  in   the   actual 
possession  of  the  owner  or  lessee  of  a  mill  is  probably  in  the  same  legal 
position  {Heritable  Securities  Investment  Assoc,  1880,  7  E.  1094).     But  if  a 
man  proposes  to  purchase  a  mill  and  machinery,  and  desires  to  raise  money 
on  both,  it  is  submitted,  though  with  great  doubt,  that  a  security  may  be 
obtained  by  the  lender   taking  an  absolute  disposition   of   the   mill  and 
machinery  from  the  seller,  granting  {a)  a  back-bond  declaring  the  trans- 
action to  be  merely  a  security,  and  undertaking  to  convey  the  mill  to  the 
borrower  on  the  loan  being  paid ;  and  (b)  a  lease  to  the  borrower.     The 
borrower  will  then  on  entering  into  possession  of  the  mill,  possess  on  the 
title  given  him  by  the  contract  of  lease,  and  his  natural  possession  will 
complete  the  right  of  the  lender,  by  whom  the  lease  is  granted.     The 
security  would  therefore  appear  to  be  good  {Union  Bank,  1865,  3  M.  765; 
Duncanson,  1881,  8  E.  563). 

Trade  Fixtures. — Trade  fixtures  (see  Fixtures)  are  in  an  exceptional 
position,  and  may  be  conveyed  in  security  without  change  of  possession, 
because  the  property  in  such  fixtures,  during  the  currency  of  the  lease,  is  in 
the  landlord,  subject  to  the  right  of  the  tenant  to  remove  them  at  the  end 
of  the  lease.  The  right  of  the  tenant  is  therefore  a  jus  crediti,  and  may  be 
transferred  in  security  by  an  assignation  intimated  to  the  party  who  is 
debtor  in  that /ms  crediti,  i.e.  the  landlord  {Miller,  1894,  21  E.  658). 

Goods  in  Warehouse. — Goods  in  a  store  may  be  transferred  in  security, 


SECURITIES  147 

provided  that  the  storekeeper  is  an  independent  person,  and  not  the 
transferor,  or  a  servant  of  his,  by  giving  the  creditor  a  deUvery-order,  or 
indorsing  to  him  a  dock  warrant  or  other  certificate,  followed  by  intimation 
to  the  storekeeper  {Inglis,  1848,  24  E.  758;  aft'd.  35  S.  L.  R.  963;  where 
the  earlier  authorities  are  reviewed).  The  result  of  this  procedure  is  not 
a  pledge  of  the  goods  in  question,  but  an  ex  facie  absolute  transfer  of  the 
property  thereof  {Hamilton,  1856, 19  D.  152) ;  but  this  is  of  little  importance, 
as  a  security  by  an  ex  facie  absolute  transfer  is  in  most  cases  as  con- 
venient as  an  ordinary  pledge.  Intimation  to  the  store  or  warehouse 
keeper  is  indispensable,  otherwise  the  goods  remain  open  to  the  diligence  of 
the  creditors  of  the  borrower  (Tnglis,  supra).  The  principle  upon  which  the 
right  of  the  security-holder  is  held  to  be  complete  on  intimation  being 
made,  is  that  from  that  time  the  storekeeper  holds  as  his  agent  instead  of 
as  the  agent  of  the  granter  of  the  security,  and  the  goods  are  therefore 
transferred,  by  constructive  deliverv,  into  his  possession  (Bell,  Com.  i.  198, 
note;  Pocliin  &  Co.,  1869,  7  M.  622;  Distillers  Co.,  1889,  16  R  479). 
But  although  a  security  can  thus  be  completed  by  constructive  delivery  by 
an  order  on  a  warehouse-keeper,  a  man  cannot  effect  delivery  by  an  order 
on  himself,  or  on  his  servant,  or  by  an  entry  in  his  own  books.  Therefore 
if  a  manufacturer  keeps  goods  in  his  own  private  store,  or  in  a  store  kept 
by  a  manager  in  his  own  employment,  these  goods  cannot  be  used  as  a  security 
without  actually  transferring  them  into  the  hands  of  the  person  proposing 
to  advance  the  money.  The  granting  or  indorsement  of  a  delivery-order, 
in  such  circumstances,  and  its  intimation  at  the  store  or  warehouse,  really 
amounts  to  nothing  more  than  an  entry  in  the  books  of  the  borrower,  and 
this  is  not  sufficient  to  complete  the  security.  The  goods  remain  open  to 
the  diligence  of  the  borrower's  creditors,  and  pass  to  his  trustee  in 
sequestration :  in  other  words,  the  security  is  quite  inoperative  (Melrose, 
1851,  13  1).  880;  Lindsay,  1862,  24  D.  821;  Anderson,  1866,4  M.  765; 
see  contra,  per  Ld.  Young  in  Broume  &  Co.,  1893,  21  E.  173).  The  difficulty 
is  not  surmounted  even  if  the  warehouse  is  under  the  charge  of  an  officer 
of  excise,  and  the  transfer  is  entered  in  his  books,  because  such  an  officer's 
duties  are  confined  to  securing  the  interests  of  the  revenue,  and  he  cannot 
be  regarded  as  a  custodier  of  the  goods,  or  as  agent  for  either  party 
{Rhind's  Tr.,  1891,  18  E.  623).  See  further  on  this  subject.  Bill  of 
Lading  ;  Document  of  Title  ;  Deliveky-Ordek. 

Subjects  involving  CredAtor  in  Licd)ility — Leases. — Certain  subjects  of 
property  are  unsiiited  for  securities,  because  the  procedure  necessary  to 
complete  the  right  of  the  security-holder  places  him  in  the  position,  as 
regards  tliird  parties,  of  owner  of  the  subjects,  and  may  involve  him  in 
liability  in  respect  of  them.  Of  these  perhaps  the  most  im]i(»rtant  are  a 
lease,  a  right  of  ]»artncrship,  and  a  share  in  a  company  on  which  there 
remains  any  liability  in  respect  of  uncalled  capital.  (As  to  shares,  see 
liLANK  Transfer.)  If  a  lease  is  registered  under  the  Eegistration  Act,  1857, 
it  may  be  used  as  a  subject  of  security  under  the  forms  provided  liy  that 
Act.  Such  registration,  however,  is  only  competent  in  the  case  of  leases  for 
a  time  of  not  less  than  thirty-one  years.  In  tlie  case  of  leases  not  registered, 
no  preferential  riglit  can  be  obtained  by  a  creditor  unless  he  actually  enters 
into  possession  of  tlic  subjects  {Ivrilis  &  Co.,  1829,  7  S.  469  ;  Clark,  1882,  9  E. 
1017).  Apart  from  the  practical  difficulty  of  such  a  proceeding,  it  involves 
the  security-holder  in  liability  for  tlic  rent  {Ross,  1786,  Mor.  15290; 
i2a7«.say,1842,  4  D.  405  ;  Moncreiff,  1896,  24  E.  47).  In  the  case  of  Ramsay 
it  was  decided  that  the  secuiity-holder,  if  he  had  once  intimated  his  right 
to  the   landlord,  and   obtained   his   assent,  even  although   he  h'^^  never 


148  SECURITIES 

entered  into  possession,  would  not  get  rid  of  his  liability  without  the  land- 
lord's consent.  The  case  was,  however,  a  special  one  in  respect  that  the 
seciu'ity  was  constituted  in  the  form  of  an  ex  facie  absolute  assignation  of 
the  lease,  and  it  was  suggested  by  Ld.  Mackenzie  that  if  the  security 
had  been  framed  as  an  assignation  expressly  in  security,  the  holder  would 
have  been  entitled  to  terminate  his  liability  for  rent,  by  a  reassignation. 
Further,  the  security  -  holder,  by  entering  into  possession,  may  incur 
liability,  if  the  lease  is  of  such  a  character  as  to  require  outlay  in  carrying 
it  on — a  farming  or  mining  lease,  for  example.  Even  if  an  attempt  is 
made  to  take  civil  possession  by  constituting  the  lessee  manager  for  the 
security-holder,  the  latter  has  been  held  personally  liable  for  furnishings, 
although  the  party  furnishing  them  was  not  aware  of  his  connection  with 
the  subjects  {Macphail  &  Sons,  1887,  15  E.  47).  From  these  cases  it  is 
clear  that  a  lease  which  involves  the  carrying  on  of  a  business  is  a  subject 
on  which  it  is  very  unsafe  to  advance  money.  If  the  lease  is  of  a  subject 
which  does  not  occasion  expense,  for  instance,  a  house,  the  security  may 
be  less  dangerous,  but  the  cases  on  what  constitutes  entering  into  possession 
of  such  a  subject  so  as  to  avoid  all  risk  of  challenge  from  the  trustee  on  the 
debtor's  bankruptcy  do  not  furnish  a  rule  sufficiently  distinct  to  enable  a 
creditor  to  advance  money  safely  on  such  a  security  (see  Simes  Tr.,  23  May 
1806,  F.  C. ;  Wright,  1839,  1  D.  641 ;  Bolcrts,  1842,  5  D.  6 ;  Hardie,  1879, 
19  S.  L.  E.  83 ;  Macphail  &  Sons,  1887,  15  E.  47). 

Assignations  of  Right  of  Partnership. — The  right  of  a  partner  in  a  firm 
may  be  assigned  in  security  without  rendering  the  assignee  a  partner.  The 
following  statement  of  the  law  in  Lindley  on  Partnership,  p.  698,  6th  ed., 
367,  has  been  stated  by  Ld.  Gifford  {Casscls,  1879,  6  E.  936,  at  p.  955) 
correctly  to  represent  the  law  of  Scotland :  "  Although  a  partner  cannot, 
by  transferring  his  share,  force  a  new  partner  on  the  other  members  of  the 
firm  without  their  consent,  there  is  nothing  to  prcA'ent  a  partner  from 
assigning  or  mortgaging  his  share  without  consulting  his  partners ;  and  if  a 
partner  does  assign  or  mortgage  his  share,  he  thereby  confers  upon  the 
assignee  a  right  to  payment  of  what,  upon  taking  the  accounts  of  the 
partnership,  may  be  due  to  the  assignor  or  mortgagor.  But  the  assignee 
or  mortgagee  acquires  no  other  right  than  this,  and  he  takes  subject  to  the 
rights  of  the  other  partners,  and  will  be  affected  by  equities  arising  between 
the  assignor  and  his  copartners  subsequently  to  the  assignment."  The  right 
of  a  partner  to  grant  a  subordinate  assignation  is  not  excluded  by  a  general 
prohibition,  in  the  contract  of  copartnery,  of  any  assignation  of  any  partner's 
share.  In  Cassels  (1879,  6  E.  936 ;  aficl.  8  E.  (H.  L.)  1)  it  was  provided  that 
"  it  shall  not  be  in  the  power  of  any  of  the  partners  to  assign  all  or  any  part 
of  his  share  or  interest  in  the  capital  stock  or  profits  of  the  concern  to  any 
person."  This,  it  was  held,  prohibited  an  assignation  so  framed  as  to  make 
the  assignee  a  partner  of  the  firm  instead  of  the  cedent,  it  did  not  prohibit  an 
assignation  of  his  rights  under  the  contract  by  a  member  of  the  firm  who  con- 
tinued to  be  a  partner.  An  assignation  of  the  right  of  a  partner  in  a  firm 
is  an  assignation  of  a  jus  crecliti,  and  must,  in  order  to  confer  on  the  assignee 
a  right  preferable  to  that  of  other  creditors  of  the  cedent,  be  completed  by 
intimation  to  the  firm  (Ersk.  iii.  5.  3 ;  Hill,  1846,  8  D.  472,  and  10  D.  78). 
As  the  share  of  a  partner  may  be  arrested  by  his  creditors  (Ersk.  iii.  3.  24), 
and  will  pass  to  his  trustee  in  bankruptcy  {Bill,  siq^ra),  such  intimation  is 
indispensable  in  order  to  make  an  assignation  in  security  of  any  real  value 
to  the  assignee.  (As  to  what  constitutes  intimation  to  a  partnership,  see 
mil,  sup)ra,  and  Russell,  1827,  5  S.  891 ;  affd.  5  W.  &  S.  256).  The  assig- 
nation, which  does  not  make  the  assignee  a  partner  of  the  firm,  but  merely 


SECUEITIES  149 

gives  him  a  redeemable  right  to  the  share  of  an  individual  partner,  does 
not,  it  is  conceived,  subject  him  to  liability  for  the  debts  of  the  firm 
{Eaglesham  &  Co.,  1875,  2  E.  960  ;  cf.  Mess,  1896,  23  R  1105;  Partnership 
Act,  1890,  s.  2,  subs.  3  (d)).  But  the  rights  conferred  on  the  assignee 
render  it  a  security  of  a  limited  and  unsatisfactory  kind.  The  nature  of 
these  rights  (a  point  not  illustrated  by  any  Scotch  decisions)  is  dealt  with  by 
the  Partnership  Act  as  follows  (s.  31) :  "  (1)  An  assignment  by  any  partner 
of  his  share  in  the  partnership,  either  absolute  or  by  way  of  mortgage  or 
redeemable  charge,  does  not,  as  against  the  other  partners,  entitle  the 
assignee,  during  the  continuance  of  the  partnership,  to  interfere  in  the 
management  or  administration  of  the  partnership  business  or  affairs,  or  to 
require  any  accounts  of  the  partnership  transaction,  or  to  inspect  the 
partnership  books,  but  entitles  the  assignee  only  to  receive  the  share  of 
profits  to  which  the  assigning  partner  would  otherwise  be  entitled,  and  the 
assignee  must  accept  the  account  of  profits  agreed  to  by  the  partners. 
(2)  In  case  of  a  dissolution  of  the  partnership,  whether  as  respects  all 
the  partners  or  as  respects  the  assigning  partner,  the  assignee  is  entitled  to 
receive  the  share  of  the  partnership  assets  to  which  the  assigning  partner  is 
entitled  as  between  himself  and  the  other  partners,  and,  for  the  purpose  of 
ascertaining  that  share,  to  an  account  as  from  the  date  of  the  dissolution." 

Assignation  of  Business  of  Sole  Trader. — When  a  single  individual  carries 
on  a  business,  it  would  seem  to  be  extremely  doubtful  whether  he  can  in 
any  way  assign  it  in  security  so  as  to  give  the  assignee  any  preference  in 
the  event  of  his  bankruptcy.  Arrangements  by  which  a  trader,  in  con- 
sideration of  an  advance,  assigns  his  business,  and  agrees  to  pay  all  the 
receipts  to  a  creditor,  or  into  a  particular  account  at  a  bank,  may  be  useful 
in  preventing  the  debtor  from  applying  the  profits  of  the  business,  should 
it  prove  successful,  to  his  own  purposes  instead  of  to  the  payment  of  his 
debt,  but  it  would  appear  that  they  cannot  confer  on  the  assignee  any 
right  higher  than  that  of  an  ordinary  personal  creditor,  and  are  therefore 
useless  in  the  event  of  the  business  proving  unsuccessful  {Graliam  &.  Co., 
1895,  23  E.  84).  They  do  not  transfer  the  stock-in-trade  to  tlie  creditor, 
unless  he  takes  actual  delivery  of  it  (Stiven,  1871,  9  M.  923 ;  Bhind's 
Tr.,  1891,  18  E.  623;  Patersons  Tr.,  1891,  29  S.  L.  E.  87);  and  it  is  con- 
ceived that  if  a  debt  due  to  the  firm  were  arrested  by  anotlicr  creditor,  the 
arrestment  would  be  good,  unless  the  assignee  of  the  business  had  taken 
the  precaution  of  intimating  his  riglit  to  all  the  debtors  (see  opinion  of  Ld. 
M'Laren  on  Graham  &  Co.,  su^va).  The  following  cases,  Fai/lcsham  &  Co., 
1875,  2  E.  960;  /^tott,  1875,  5  E.  1104;  Mess,  1896,  23  E.  liOO;  Edmunds, 
1865,  L.  E.  1  Q.  V>.  97,  show  the  danger  which  a  creditor  in  such  arrange- 
ments incurs  of  being  held  liable  for  the  debts  of  the  concern,  either  as 
truly  a  partner,  or  as  a  principal  for  whom  the  debtor  is  an  agent.  It  is 
true  tliat  in  tlie  Scotch  cases  referred  to  the  debtor  escaped  lia])inty,  Imt  it 
may  be  noted  tliat  in  none  of  them  had  he  entered  into  ])ossossion  of  the 
business,  or  done  anything  to  place  himself  in  the  position  of  holding  a 
preferential  right  over  the  assets. 

Loans  on  Share  of  Profils. — Instead  of  taking  an  assignation  of  a  l)usiness, 
it  is  not  unr-ominon  for  a  ])arty  advancing  money  to  attem]>t  to  secure  him- 
self hy  stipulating  fur  a  share  of  the  protits,  r)r  for  interest  at  a  rate  varying 
with  the  profits.  A  study  of  the  cases  on  the  Ru])jcct  of  arrangements  of 
this  kind  leads  to  the  conclusion  that  they  should  never  be  entered  into  by 
a  person  wishing  to  f)ccnpy  the  jiosition  of  a  lender  of  money,  however  suit- 
able they  may  be  for  a  person  who  wishes  to  emliark  his  money  as  a 
partner  in  a  private  business  with  limited  liability.     Such  arrangements, 


150  SECUEITIES 

unless   fortified   by  the   conveyance   of  a    particular  subject,   or   by   the 
cautionary  obligation  of  a  third  party,  are  in  no  sense  rights  in  security 
{Graham  &  Co.,  1895,  23  K.  84).     In  fact,  the  provisions  of  the  Partnership 
Act,  1890,  place  the  lender  of  money  on   such  conditions  in  a  position 
inferior  to  that  of  an  ordinary  personal  creditor.     The  Act  has  the  follow- 
ing provisions  (s.  2,  subs.  3  {d)) :  "  The  advance  of  money  by  way  of  loan  to 
a  person  engaged  or  about  to  engage  in  any  business,  on  a  contract  with 
that  person  that  the  lender  shall  receive  a  rate  of  interest  varying  with  the 
profits,  or  shall  receive  a  share  of  the  profits  arising  from  carrying  on  the 
business,  does  not  of  itself  make  the  lender  a  partner  with  the  person  or 
persons  carrying  on  the  business,  or  liable  as  such,  provided  that  the  con- 
tract is  in  writing,  and  signed  by  or  on  behalf  of  all  the  parties  thereto  " 
(s.  3).     "  In  the  event  of  any  person  to  whom  money  has  been  advanced  by 
way  of  loan  upon  such  a  contract  as  is  mentioned  in  the  last  foregoing 
section," — "  being  adjudged  a  bankrupt,  entering  into  an  arrangement  to 
pay  his   creditors  less  than  twenty   shillings  in  the  pound,  or  dying  in 
insolvent  circumstances,  the  lender  of  the  loan  shall  not  be  entitled  to 
receive  any  tiling  in  respect  of  his  loan " — "  until  the  claims  of  the  other 
creditors  of  the  borrower  for  valuable  consideration  in  money  or  money's- 
worth  have  been  satisfied."     This  latter  section,  reproducing  sec.  5  of  Bovill's 
Act  (28  &  29  Vict.  c.  8G),  which,  however,  was  definitely  limited  to  contracts 
in  writing,  must,  in  almost  all  cases  of  bankruptcy,  deprive  the  lender  of 
the  ordinary  right  of  ranking  on  his  debtor's  estate.     There  has  as  yet  been 
no  decision  in  Scotland  on  the  question  whether  sec.  3  of  the  Partnership 
Act  applies  to  loans  which  are  not  framed  in  forms  which  directly  fall 
within  the  terms  of  subs.  3  {d)  of  sec.  2.     In  England  it  has  been  held  that 
the  section  is  applicable  although  the  agreement  following  on  the  loan  is 
not  in  writing  {ex  parte  Schoficld,  [1897]  2  Q.  B.  495),  and  when  the  agree- 
ment was  that  the  lender  should  be  entitled  to  a  specified  sum  out  of  the 
profits  {ex  parte  Jones,  [1896]  2  Q.  B.  484).     On  the  other  hand,  in  a  com- 
plicated case,  it  was  held  that  sec.  3  did  not  apply,  on  the  ground  that  the 
agreement  was  unintelligible  and  inoperative  {re    Vince,  [1892]  2  Q.  B. 
478).     The  lender  is  not  precluded  from  realising  any  independent  security 
he  may  hold  for  his  loan  {ex  parte  Shell,  1877,  4  Ch.  D.  789  ;  Badely,  1888, 
38  Ch.  D.  238) ;  and  as  he  is  a  creditor  it  would  appear,  though  it  has  not 
been  decided,  that  he  is  entitled  to  attach  the  estate  of  the  borrower  by 
diligence.     It  should  be  observed  that  the  Partnership  Act,  1890,  does  not 
provide  that  a  person  providing  money  on  a  profit-sharing  agreement  shall 
not  be  liable  for  the  debts  of  the  business ;  it  only  enacts  that  liability  is 
not  to  be  inferred  from  profit-sharing  alone.     The  result  of  the  cases  seems 
to  be  that  the  question  of  the  lender's  liability  will  depend  upon  whether 
the  Court,  looking  at  the  agreement  as  a  whole,  shall  come  to  the  conclusion 
that  the  so-called  lender  is  really  a  partner.     In  Miller,  1876,  3  E.   548 ; 
Stott,  1878,  5  Pt.  1104;  Mess,  1896,  23  E.  1105  ;  Molhoo,  March,  &  Co,  1872, 
L.  E.  4  P.  C.  419 ;  Badely,  1888,  38  Ch.  D.  238 ;  ex  parte  Jones,  [1896]  2 
Q.  B.  484,  the  transaction  was  held  a  mere  loan.     In  Sycrs,  1876, 1  App.  Ca. 
174  ;  Pooley,  1876,  5  Ch.  D.  418;  in  re  Ddhasse,  1878,  5  Ch.  D.  511;  and 
Murray,  1898,  36  S.  L.  E.  29,  it  was  held  a  partnership.     In  the  case  of 
Mess  it  was  held  that  the  lender  was  not  liable  although  it  was  provided 
that,  in  addition  to  interest  at  a  fixed  rate,  the  profits  of  the  business  were 
to  be  retained  for  three  years,  and  then  divided  equally  between  borrower 
and  lender;  that  the  borrower  was  to  supply  half-yearly  balance-sheets, 
and  that,  on  any  balance-sheet  showing  that  the  capital  of  the  business  had 
sunk  below  £500,  the  agreement  was  to  terminate,  and  such  balance  as 


SECURITIES  151 

remained  was  to  be  paid  to  the  lender.  There  was,  however,  in  this  case  the 
specialty  that  the  share  of  the  profits  effeiring  to  the  lender  was  not  to  be 
paid  to  him  directly,  but  was  to  be  applied  towards  payment  of  a  large  debt 
due  by  the  borrower  to  the  representatives  of  the  lender's  father.  It  was 
also  the  result  of  the  agreement  that  the  business,  on  the  termination  of  the 
arrangement,  would  remain  the  property  of  the  borrower.  In  the  more 
recent  case  of  Miirray  {supra),  where  at  the  end  of  the  arrangement  half  the 
business  was  to  belong  to  the  lender,  he  was  held  liable  as  a  partner. 

Policies  of  Insurance. — Policies  of  life  insurance  may  either  be  used  as 
collateral  securities  to  an  assignation  of  a  reversionary  right,  or  as  inde- 
pendent subjects  of  security.  The  questions  which  have  arisen  in  the 
former  case  are  dealt  with  in  the  article  on  Life  Ixsukance  (vol.  viii. 
p.  107),  and  the  actuarial  calculations  upon  which  such  transactions  depend 
will  be  found  in  the  session  papers  in  the  case  of  J/«u2Vs(1893,20  E.  (H.  L.) 
108).  Where  premiums  have  been  paid  on  a  policy,  it  becomes  a  subject  of 
ascertainable  value,  and  is  frequently  assigned  in  security.  A  form  of  such 
an  assignation  will  be  found  in  the  Jurid.  Shjlcs,  ii.  695.  The  right  of  the 
creditor  therein  must  be  completed  by  intimation  to  the  insurance  company, 
as  a  mere  deposit  of  the  policy  does  not  give  a  real  right  to  it,  and  a  creditor 
arresting  in  the  hands  of  the  company  is  preferable  to  such  a  depositary 
(Sfrachan,  1835,  13  S.  954;  United  Kingdom  Life  Assurance  Co.,  1838,  16 
S.  1277;  Scottish  Provident  Institution,  1888,  16  R.  112).  But  a  mere 
deposit  of  the  policy  may  be  good,  at  least  in  a  question  with  any  posterior 
assignee,  if  it  is  made  in  pursuance  of  a  contract  entered  into  ina  -foreign 
country  where  a  deposit  is  recognised  as  a  mode  of  transferring  a  right  to  the 
X)o\\cy  {Scottish  Provident  Instit.  v.  Cohen,  1888, 16  E.  112  ;  Scottish  Provident 
Instit.  V.  Pohinson,  1892,  29  S.  L.  E.  733).  The  only  danger  in  a  security  by 
an  assignation  of  a  policy  of  insurance,  besides  the  possibility,  which  should 
always°be  settled  by  inquiry,  that  the  company  may  have  a  lien  over  it  for 
advances  made  to  the  assured,  is  tliat  the  policy  may  be  avoided  in  respect 
of  misrepresentations  made  by  the  assured  at  the  time  when  it  was  taken 
out.  (As  to  what  misrepresentations  will  avoid  a  policy,  see  Life  Insur- 
ance.) It  has  been  decided  that  any  plea  of  this  kind  open  to  the  company 
in  a  question  with  the  assured,  is  also  open  to  them  in  a  question  with  an 
assignee  {Scottish  Widoics  Fund,  1876,  3  E.  1078),  though  the  company,  if 
aware  of  such  olijections,  is  not  entitled  to  continue  to  receive  the  premiums 
from  an  assignee,  and  then,  when  tlie  policy  becomes  payable,  to  i»lcad  tliat 
it  is  avoided  in  respect  of  initial  misrepresentation  {Scottish  Eqintalle  Life 
Assurance  Co.,  1877, 4  E.  1076,  per  Ld.  Pres.  Inglis).  It  is  believed  tliat  most 
companies,  in  the  case  of  a  policy  of  any  standing  being  assigned,  would 
consent  to  grant  a  waiver  of  any  such  objections. 

Pirjhts  of  Creditor;  Collateral  Advantages.— 'Yha  general  principles  winch 
determine  tlie  legal  results  and  incidents  of  a  right  in  security,  when  duly 
comi)loted,  may  l)e  best  considered  from  tlie  point  of  view  of  the  rights  of 
tlie  creditor.  It  may  first  be  noted  that  the  Courts  are  inclined  to  restrict 
the  rights  of  a  creditor  to  those  wliich  primarily  flow  from  his  contract, 
i.e.  the  right  to  obtain  payment  of  his  debt,  principal  and  intercst._  The 
question  would  appear  still  to  be  open  in  Scotland  whether  there  is  any 
equitable  rule  which  would  prevent  a  creditor  from  enforcing  a  contract 
whereby  it  was  stipulated  that  be  should  Ijc  entitled  to  make  use  of  the 
Rul)ioct  of  liis  security  as  a  source  of  i)rr)fit,  nr  shDuld  bo  entitled  to  any 
incidental  profits  that  might  ari-^c  from  it.  (For  English  law  on  tlie  point, 
see  White  and  Tudor's  Efiuitg  Cases,  7th  cd.,  vol.  ii.  p.  16.)  Put  however 
this  may  be,  it  is  settled  that  without  express  stipulation  no  collateral 


152  SECUEITIES 

advantage  may  be  obtained.  Thus  a  person  who  is  in  possession  of  land 
under  the  powers  in  a  bond  and  disposition  in  security  cannot  exercise  the 
rights  of  a  proprietor  in  voting  or  county  government  {Forsyth,  1853,  16  D. 
197).  And  where  a  right  of  patronage  was  adjudged,  it  was  decided  that 
the  adjudger  had  no  right  to  present  to  the  church  on  a  vacancy  occurring 
{Grindlay,  1833, 1  Eoss'  L.  C.  140).  Again,  where  a  company  offered  to  its 
shareholders  the  right  of  subscribing  for  new  shares  on  favourable  terms,  it 
was  held  that  a  creditor,  who  had  had  the  shares  transferred  to  his  name 
in  order  to  complete  his  security,  was  the  agent  for  the  debtor,  was  bound 
to  communicate  the  offer  to  him,  and,  if  he  failed  to  do  so,  would  be  liable 
for  any  damage  the  debtor  thereby  sustained  {Dovgall,  1892,  20  E.  8). 
This  principle  and  its  limitations  are  well  illustrated  by  an  English  case. 
A  brewery  company  entered  into  possession  of  a  public-house  mortgaged  to 
them,  and  let  it  subject  to  a  clause  restricting  the  tenant  to  their  beer.  In 
a  question  of  accounting  with  the  debtor  it  was  proved  that  a  higher  rent 
could  have  been  obtained  if  this  clause  had  been  omitted.  It  was  held 
that  the  company  were  bound  to  debit  themselves  with  rent  at  this  higher 
rate,  but  that  they  were  not  bound  to  account  for  the  profits  they  had  made 
by  supplying  the  beer  ( White,  1888,  42  Ch.  1).  237). 

Irritancies. — A  similar  equitable   principle  to  that  which  prevents  a 
creditor   obtaining  any   collateral   advantages   from   his   security   is    the 
foundation  of  the  rule  that  a  security  cannot  be  turned  into  a  right  of 
property  by  mere   contract.     In   English   law  this  principle  is  expressed 
in  the  maxim  "  once  a  mortgage  always  a  mortgage  "  ;  and  in  the  law  of 
Scotland  it  is  thoroughly  settled  that  penal  clauses  in  bonds — clauses,  that 
is,  whereby  it  is  declared  that  on  the  happening  of   a  certain  event,  for 
instance,  on  failure  of  payment  by  a  certain  date,  the  right  of  redemption 
should  be  extinguished — will  not  receive  effect  (Thomson,  1844,  6  D.  1106; 
Smith,  1879,  6  E.  794).     "The  principle  is  quite  fixed,  that  if  a  transaction 
is  only  a  security  it  cannot  be  converted  into  a  right  of  property  without  a 
declarator  of  the  extinction  of  the  former  proprietor's  right "  (per  Ld.  Pres. 
Inglis  in  Smith,  supra,  at  p.  800).    The  rule  has  even  been  allowed  to  prevail 
over  the  express  terms  of  the  Act  1672,  c.  19,  whereby  it  is  declared  that 
lands  adjudged  "  shall  remain  heritably  and  irredeemably  with  the  creditor 
in  case  they  be  not  redeemed  within  the  space  of  five  years  after  the  decree 
of  adjudication."     These  words  notwithstanding,  adjudications  have  always 
been  held  redeemable  until  a  declarator  of  expiry  of  the   legal   has   been 
obtained  (CamphcU,  1794,  Mor.  321, 1  Eoss'  Z.  C.  155).    The  same  principle 
results  in  the  rule  that  a  stipulation  in  a  bond  that  non-payment  after  a 
fixed  date  shall  exclude  the  right  to  redeem  only  gives  the  creditor  the 
right  to  bring  a  declarator  of  irritancy  of  the  debtor's  right.     The  irritancy 
may,  until  the  declarator  is  obtained,  be  purged  by  payment  of  the  sum  due 
(Stair,  i.  13.  14;  Earl  of  Tullibardine,  1667,  Mor.  7206;  Adam,  1848,  10  D. 
722).     This  rule  would  appear  to  hold  even  if  the  creditor  has  been  invested 
with  a  title  of  property,  provided  that  it  can  be  proved  that  it  was  really  in 
security  (Smith,  1879,  6  E.  794).     In  such  a  case,  however,  the  debtor's  right 
of  redemption  may  be  cut  off  by  the  negative  prescription  (Chambers,  1823, 
2  S.  366  ;  National  Bank,  1885,  13  E.  380,  per  Ld.  Eraser).      The  principle 
that  a  contract,  if  originally  a  security,  must  remain  so  until  its  character 
is  altered  by  a  declarator,  was  strongly  illustrated  in  the  case  of  Salt  v. 
Marquess  of  Northampton,  [1892]  App.  Ca.  1.     In  that  case  A.  was  entitled 
to  succeed  to  an  entailed  estate  of  some  value  on  the  death  of  his  father. 
Before  that  event  he  borrowed  £10,000  from  an  insurance  comj^any,  grant- 
ing a  bond  and  disposition  in  security  over  the  entailed  estate,  and  arranging 


SECUEITIES  153 

that  the  company  should  be  entitled  to  insure  his  life,  as  against  that  of  his 
father,  for  £20,000  in  any  office  they  might  select,  and  on  terms  which 
resulted  in  the  borrower  being  liable  to  pay  the  premiums.  The  company 
effected  the  insurance  in  their  own  office.  It  was  an  express  part  of  the 
contract  that  if  A.  should  predecease  his  father  without  having  repaid  the 
loan,  the  proceeds  of  the  insurance  policy  should  belong  to  the  lenders. 
On  A.  predeceasing,  it  was  held  that  the  company  was  bound  to  account  for 
the  £20,000  to  his  representatives,  under  deduction  of  the  amount  of  the 
loan,  arrears  of  interest,  and  unpaid  premiums.  The  ratio  decidendi  was 
that  the  policy  originally  as  taken  out  belonged  to  A.,  that  the  interest  of 
the  company  in  it  was  only  that  of  a  mortgagee,  and  that  the  clause  pro- 
viding that  it  should  become  their  property  on  A.  predeceasing  his  father 
without  having  repaid  the  loan,  was  a  penal  clause  in  a  security-contract  to 
which  the  Courts  would  not  give  effect  (see  also  Marquess  of  Quccnsbcrry, 
1839,  1  D.  1203;  affd.  1  Bell's  App.  183;  Shancl,  1859,  21  D.  878;  Knox, 
1870,  L.  E.  5  Ch.  515 ;  Preston,  1879,  12  Ch.  D.  760). 

Obligations  of  Creditor. — The  obligations  of  a  creditor  to  whom  a  subject 
has  been  given  in  security,  whether  by  ex  facie  absolute  transfer  or  as  a  mere 
pledge,  are  to  keep  the  subject  with  reasonable  care,  and  to  restore  it  on 
payment  of  the  debt.  The  degree  of  care  required  would  seem  to  be  that 
known  as  ordinary  diligence  {Coejgs,  1  Smitli's  L.  C.  167).  Thus  a  party  who 
takes  a  bill  of  exchange  in  security  is  bound  to  present  it  for  payment  hi 
due  course,  and  to  take  the  ordinary  proceedings  to  preserve  recourse  on  its 
being  dishonoured  {Peacock,  1863,  32  L.  J.  C.  P.  266  ;  Dominion  Panic,  1889, 
16  Pi.  1081).  Should  the  su1)ject  of  the  security  be  lost  from  causes  which 
would  not  have  been  averted  by  ordinary  diligence,  the  security -holder  is 
not  lialjle,  and  is  still  entitled  to  exact  the  debt  {Syred,  1858,  El.  B.  & 
E.  469),  unless  the  case  is  one  which  falls  under  the  Pawnbrokers  Act, 
1872.  On  payment  being  tendered,  the  security-holder,  unless  he  has  a 
claim  of  retention  (see  PcETENTIOn),  is  bound  to  restore  the  subject  of  his 
security,  and  will  be  answerable  in  damages  if  it  is  thereafter  lost  ov 
damaged,  even  from  a  cause  beyond  his  control  {Cogrjs,  1  Smith's  Leading 
Cases,  167,  per  Ld.  Holt,  at  p.  178).  The  obligation  to  restore  ihe  subject 
of  the  security  as  he  received  it  has  important  consequences  in  the  event  of 
the  debtor  liaving  parted  with  his  property  in  that  subject.  A\liere  he  re- 
tains the  riglit  of  property,  he  may  often  have  no  interest  to  demand  an 
assignation  of  the  security,  as  a  mere  discharge  is  sufiicient  to  extinguish 
the  creditor's  right.  But  where  he  has  conveyed  the  subject  to  a  third 
party,  l)ut  still  remains  liable  for  the  debt,  it  is  open  to  the  creditor  to 
Kue  him  personally  instead  of  realising  the  security.  If,  however,  he  thus 
proceeds  on  the  debtor's  personal  obligation,  he  is  bound  to  assign  to  him 
his  security,  in  order  that  the  debtor  may  be  enal)lcd  to  work  out 
his  relief  against  tlie  person  to  whom  the  subject  of  the  security  has 
been  transferred.  If  the  creditor  has  consented  to  restrict  or  limit  his 
security  in  favour  of  the  party  to  whom  the  subject  has  been  transferred, 
he  can  no  long(;r,  in  granting  sucli  an  assignation,  assign  the  security  as  he 
received  it,  and  therefore  he  is  not  entitled  to  sue  the  original  dL'I)ior  on 
the  personal  obligation  {North  AlMon  Projierty  Inrestment  Co.,  1893,  21  li. 
90;  Mackirdy,  1895,  22  \\.  340;  Kinnaird,  1888,  :;9  Cb.  Div.  636).  'Hius 
in  the  case  of  Markirdy,  A.  granted  a  bond  and  disjiosition  in  security  to  B. 
over  the  lands  of  X.  Ho  afterwards  conveyed  these  lands,  subject  to  the 
security,  to  C.  C.  feued  the  lands,  and  obtained  the  consent  of  B.  to  free 
the  dominium  utile  of  the  parts  feued  from  the  security,  reserving  his  right 
over  the  dominium  directum,  or  superiority.     In  an  action  by  B.  against  A. 


154  SECUFJTIES 

for  payment  of  the  loan  mider  the  personal  obligation,  it  was  held  that  by 
thus  freeing  the  dominium  utile  of  the  lands,  he  had  rendered  himself 
nnable  to  assign  the  security  to  A.  in  its  entirety,  and  had  therefore  lost 
his  right  to  enforce  A.'s  personal  obligation.  This  principlejs  not  appHcable 
if  the  debtor  has  consented,  directly  or  indirectly,  to  the  restriction  of  the 
security,  and  therefore  a  creditor  who  has  sold  the  subjects  under  a  power 
of  sale  is  not  thereby  precluded  from  suing  the  debtor  for  any  balance  of 
the  debt  which  may  remain  after  exhausting  the  proceeds  of  the  sale 
{North  Albion  Property  Investment  Co.,  supra,  per  Ld.  M'Laren ;  Jones,  24 
Q.  B.  D.  269). 

Obligation  to  Assign. — jSTot  only  is  the  creditor  bound  to  assign  his 
security  to  the  debtor  on  receiving  payment :  he  is  also  bound  to  assign  to 
anyone  who  tenders  payment  of  the  debt  and  has  the  authority  of  the 
debtor  in  doing  so  {Fleming,  1867,  5  M.  856 ;  MacJcintosh's  Trs.,  1898,  25 
E.  554).  The  fact  that  the  security  is  heritable,  and  that  the  debtor  has 
been  inhibited,  does  not  alter  the  case,  and  the  creditor  is  still  bound  to 
grant  the  assignation,  and  in  doing  so  does  not  incur  any  liability  to  the 
inhibitor  {Mackintosh's  Trs.,  siqyra).  But  a  creditor  who  is  not  pressing 
for  payment  is  not  bound  to  assign  his  security  to  anyone,  for  instance  a 
postponed  security-holder,  w^ho  has  not  the  authority  of  the  debtor  to 
demand  it  {Smith,  1844,  6  D.  1164;  Fleming,  1867,  5  M.  856).  If, 
however,  he  is  pressing  for  payment,  or  about  to  realise  his  security,  he  is 
bound  to  assign  to  anyone  who  proposes  to  pay  the  debt  on  behalf  of  the 
debtor,  or  who  can  show  a  reasonable  interest  to  demand  such  an  assignation 
(Ersk.  iii.  5.  11 ;  Cunningham's  Trs.,  1847,  10  D.  307). 

A  creditor  who  is  offered  payment  is  not  bound  to  assign  his  security  if 
he  can  show  that  he  has  a  reasonable  interest  to  refuse.     Such  an  interest 
may  arise  from  the  fact  that  the  assignation  might  expose  him  to  some 
liability.     Thus  where    a    creditor  held   an   adjudication   on    a   debt   on 
which  several  parties  were  co-debtors,  and  was  in  possession  of  the  subjects 
adjudged,  and  one  of  these  co-debtors  offered  to  pay  the  debt,  as  it  should 
be  fixed  on  accountino;,  on  receivino-  an  assignation  of  the  debt  and  the  lands 
adjudged,  it  was  held  that  the  creditor  was  not  bound  to  accept  this  ofler, 
because  the  accounting  would  not  be  binding  upon  the  other  debtors,  and 
he  might  therefore  be  exposed  to  liabihty  to  them,  in  the  event  of  their 
pleading  that  he  had  been  already  repaid  by  his  intromissions  with  the  rents 
during  the  period  for  which  he  was  in  possession  {Will,  1867,  6  M.  9 ; 
see  also  EusseU's  Tr.,  1857,  20  D.  125).     The  creditor  may  also  be  entitled 
to  refuse  an  assignation  on  the  ground  that  he  has  further  interests  in  the 
subjects  which  would  be  injured  by  the  assignation  being  granted.     Thus 
it  was  held  that  a  landlord,  who  was  in  process  of  sequestrating  his  tenant 
for  rent,  was  not  boimd  to  assign  the  right  obtained  under  the  sequestration 
to  a  friend  of  the  tenant's,  who  offered  to  pay  the  rent,  because  he  had  a 
reasonable  interest  in  preventing  his  tenant  from  borrowing  money  on  the 
security  of  his  crops,  by  means  of  an  assignation  of  the  landlord's  sequestra- 
tion {Graham,  1842, 4  D.  903).    In  Sjnith  v.  Ge^itlc  (1844, 6  D.  1164),  A.  held  a 
decree  for  expenses,  and  the  payment  thereof  had  been  made  a  condition 
of  B.'s  obtaining  a  new  trial.     A  third  party  offered  payment,  and  demanded 
an  assignation  of  the  decree.    A.  refused  the  offer,  on  the  ground  that  if  he 
was  successful  in  the  action,  B.  would  again  become  his  debtor,  and  the 
decree  assigned  might  be  used  as  a  basis  for  diligence  whicli  would  affect 
B.'s  estate.     It  was  held  that  this  was  not  a  legitimate  reason  for  the  refusal 
of  an  assignation.    The  case  where  a  creditor  refuses  to  assign  on  the  ground 
that  he  has  another  security  over,  or  some  further  interest  in,  the  same 


SECURITIES  155 

subjects    is   dealt  ^Yith    in    the    article    on    Catholic    and    Secondary 
Securities. 

Limitations  of  Bight  to  realise  Security. — The  position  and  rights  of  a 
creditor  in  realising  the  subject  of  his  security  depend  upon  the  terms  on 
which  the  security  was  granted.  An  ex  facie  absolute  transfer  or  disposi- 
tion, by  investing  the  creditor  with  a  title  of  an  owner,  gives  hun,  as  has 
already  been  noticed,  the  right  to  sell.  The  same  right  may  be  given  by 
an  express  power  of  sale,  and  is  provided,  by  the  Pawnbrokers  Act,  1872, 
in  cases  of  pledge  which  fall  within  the  scope  of  that  Act,  on  certain 
specified  conditions.  Again,  in  the  case  of  mortgages  or  debentures  issued  by 
a  company  incorporated  by  Act  of  Parliament,  it  is  usually  provided  that 
the  mortgagees  or  debenture-holders  shall  have  the  right  to  petition  the 
Court  for  the  appointment  of  a  judicial  factor  to  receive  the  tolls  of 
the  undertaking  for  their  benefit.  The  x^rocedure  to  be  followed  in  such 
a  petition,  and  the  powers  and  duties  of  the  judicial  factor  when  appointed, 
are  regulated  by  the  Companies  Clauses  Acts,  1845  and  1863  (8  &  9  Vict. 
c  17  and  26  &  27  Vict.  c.  118),  and  the  Eailway  Companies  Act,  1867. 
(See  Primrose,  1851,  13  D.  1214;  Halclane,  1881,  8  E.  669,  and  9  E.  253; 
Cotton,  1889,  17  E.  262;  Broad,  1888,  15  E.  615  and  641.)  Butthis  pro- 
cedure rests  on  the  powers  conferred  by  the  private  Act  of  Parliament  by 
which  the  company  is  incorporated,  and  is  not  open  to  a  j)rivate  creditor, 
or  to  a  creditor  of  a  company  registered  under  the  Companies  Acts 
{Glasgow,  Barrhead,  etc.,  Rwy.  Co.,  1850,  12  D.  1014).  Further,  in  the  case 
of  rights  of  hypothec  over  a  ship,  whether  conventional,  by  a  bond  of 
bottomry  or  respondentia,  or  legal,  by  a  hypothec  for  collision,  salvage,  or 
seamen's  wages,  the  subject  may  be  realised  under  special  i:)roccdure  in  an 
Admiralty  Court.  Apart  from  these  special  cases,  a  creditor  in  a  security 
which  does  not  confer  upon  him  the  title  of  an  owner,  and  which  does  not 
contain  a  power  of  sale,  can  only  realise  his  security  by  obtaining  authority 
to  sell  from  a  competent  Court  (Bell,  Brin.  s.  207  ;  Wood,  1842,  4  D.  1363 ; 
Bohcrtson's  Tr.,  1890,  18  E.  12,  per  Ld.  IiPLaren).  In  the  case  of  a  pledge 
of  moveable  property  a  warrant  to  sell  may  be  obtained  upon  application 
to  the  Sheriir  Court  (Bell,  Brin.  s.  207);  in  the  case  of  heritable  property 
it  is  believed  that  the  proper  procedure  is  an  application  to  the  Court  of 
Session  for  the  appointment  of  a  judicial  factor  with  power  of  sale. 

The  creditor  selling  under  a  power  of  sale  is  bound  to  observe  strictly 
the  conditions  of  that  power.  In  the  case  of  heritaljle  securities,  where 
the  procedure  is  statutory,  the  slightest  deviation  from  the  forms  prescribed 
will  render  the  sale  lialjle  to  reduction,  and  will  entitle  the  purchaser  to 
resile  {Ferguson,  1895,  22  E.  643).  In  securities  of  older  date,  where 
particular  forms  of  selling  are  prescribed,  these  must  be  strictly  adliered 
to  {Melville,  1854,  16  D.  419);  or,  if  their  observance  is  impossible,  if,  for 
instance,  advertisement  in  a  newspaper  which  is  no  longer  published  is 
required,  a  petition  for  authority  to  dispense  with  them  sliould  1)0  presented. 
There  would  seem  no  reason  to  doubt  that  the  same  rules  would  apply  to 
the  case  of  a  security  over  moveables  with  an  express  power  of  sale. 

In  realising  his  security,  the  creditor  is  not  entitled  to  act  in  reckless 
disregard  of  the  interests  of  tlie  debtor  or  of  other  creditors.  His  position 
has  been  described  by  the  consulted  judges,  in  a  case  decided  by  the  whole 
Court,  in  the  following  terms :  "  Our*  opinion  therefore  is,  that  by  law  the 
heritable  creditor,  whose  riglit  is  constituted  by  infcftmcnt  in  the  way  and 
manner  licrc  done,  c^annot  )»e  dejirived  of  his  right  to  sell.  Still,  however, 
it  is  a  right  sul)ject  to  control.  He  is  but  an  incumlu'ancer  ;  and  sul)ordinate 
rights  may  be  lawfully  created  l>y  the  common  delator,  to  which  tlie  creditor 


156  SECUEITIES 

must  pay  a  certain  regard,  provided  they  do  not  injure  his  own  rights, 
further,  he  is,  to  a  certain  extent,  trustee  for  the  common  debtor,  and 
of  course  for  his  representatives,  and  therefore  when  he  exercises  his  right 
he  must  do  so  in  a  way  beneficial,  and  not  hurtful,  to  those  concerned.  If 
he  acted  nimiously,  the  Court  would  certainly  interfere  in  the  exercise  of 
this  right  of  sale"  {Bcveridge,  1829,  7  S.  279,  at  p.  281 ;  approved  by  Ld. 
Pres.  Inglis,  Steunrt,  1882,  10  R.  192,  at  p.  203).  The  cases  on  this 
point  do  not  illustrate  very  exactly  the  limits  imposed  by  this  principle 
upon  the  exercise  of  a  right  of  sale.  A  creditor  has  been  held  entitled  to 
sell  at  an  upset  price  which  left  nothing  for  postponed  bondholders,  if 
the  x^rice  was  a  fair  one  under  the  circumstances  ( Wilson,  1843,  8  D.  1261). 
And  an  application  for  interdict  of  a  sale,  at  the  instance  of  a  trustee 
representing  the  interests  of  the  unsecured  creditors,  and  on  the  ground  that 
the  price  would  be  prejudicially  affected  by  the  fact  that  the  debtor's  law 
agent  held  the  title  deeds  under  a  lien,  was  refused  {Bell,  1838,  16  S.  657). 
On  the  other  hand,  a  postponed  bondholder  on  a  heritable  subject  was  held 
to  be  entitled  to  interdict  a  prior  bondholder  from  selling  at  an  upset  price 
which  would  leave  nothing  to  satisfy  the  postponed  bond,  at  a  time  when 
a  reduction  of  the  title  of  the  granter  of  the  bonds  was  threatened  {Kerr, 
1848,  11  D.  301). 

Creditor  cannot  jmrchase  Subjects. — On  the  principle  that  a  creditor,  in 
selling,  is  in  the  position  of  a  trustee,  it  is  conceived  that  he  cannot  in  any 
case  purchase  the  subjects  himself,  except  under  the  procedure  provided 
by  the  Heritable  Securities  Act,  1894.  Before  that  Act  was  passed,  it  was 
settled  law  that  a  heritable  creditor  could  not  purchase  the  subjects,  either 
directly,  or  by  means  of  a  petition  for  a  judicial  factor  with  power  of  sale 
(Menzies,  Conveyancing,  p.  860;  Jeffrey,  1826,  4  S.  722;  Taylor,  1846, 
8  D.  400 ;  Stirling  s  Trs.,  1865,  3  M.  851).  There  would  seem  to  be  no 
specialty  in  the  fact  of  the  security  being  heritable  to  preclude  the  con- 
clusion that  the  same  rule  would  be  universally  applicable  to  all  securities. 
But  on  a  sale  at  the  instance  of  one  bondholder,  another  bondholder  may 
be  the  purchaser  {Bcghie,  1837,  16  S.  232),  and  a  security-holder  may 
purchase  on  a  sale  by  a  trustee  in  bankruptcy  {Cruichshanh,  1849,  11  D. 
614;  Bankruptcy  Act,  1856,  s.  120).  For  the  principle  of  foreclosure, 
introduced  by  the  Heritable  Securities  Act,  1894,  see  Bond  and  Dis- 
posixroN  IN  Secukity  ;  Powek  of  Sale. 

Right  of  Bedenijotion.  —  A  debtor  is  in  the  ordinary  case  entitled  to 
redeem  the  security  by  payment  of  his  debt.  The  procedure  which  he 
must  adopt  in  doing  so  depends,  if  the  security  is  a  bond  and  disposition 
over  heritable  subjects,  on  statutory  provisions  (see  Bond  and  Disfosition 
IN  Security),  or  in  other  cases,  upon  the  terms  of  his  contract.  If  there 
is  no  contractual  provision  on  the  subject,  it  is  conceived,  at  least  if  the 
security  is  a  pledge  of,  or  lien  over,  corporeal  moveable  subjects,  that^  the 
debtor  may  tender  payment  at  any  time.  It  has  already  been  explained 
that  an  agreement  that  the  power  of  redemption  shall  be  extinguished  after 
a  certain  time  will  not  be  enforced.  But  an  agreement  deferring  the 
power  of  redemption  for  a  term  agreed  upon  is  legal  {Asliburton,  1892, 
20  R.  187) ;  and  in  the  event  of  the  bankruptcy  of  the  debtor  before  that 
time  has  expired,  the  creditor  is  entitled  to  rank  for  damages  for  the  loss 
of  his  investment  {Dons  Tr.,  1885,  22  S.  L.  Pt.  348).  It  is  obvious,  how- 
ever, that  such  a  term  must  be  limited,  otherwise  the  effect  would  practically 
be  to  cut  off  the  debtor's  right  of  redemption  altogether.  There  is  no 
Scotch  authority  as  to  the  time  for  which  such  a  stipulation  may  be 
lawfully  made;    the   English   rule  would   appear   to   be   that  whereas  a 


SECUEITIES  157 

stipulation  against  redemption  for  five  or  seven  years  is  reasonable  and 
enforceable,  a  similar  stipulation  for  twenty  or  thirty  years  is  not  (Jccvan, 
1882,  20  Ch.  Div.  724,  per  Jessel,  M.  E.). 

The  means  by  which  a  security  may  be  extinguished  depend  to  a  large 
extent  on  the  form  of  the  security,  and  on  the  nature  of  the  subject. 
Reference  is  therefore  made  to  the  articles  on  Heritable  Securities; 
Pledge;  Lien;  Hypothec;  Retextiox. 

Securities  in  Competition  with  Creditors  using  Diligence. — The  validity 
of  a  voluntary  security  may  be  tested  either  by  the  subject  being  attached 
by  the  diligence  of  another  creditor,  or  Ijy  the  insolvency  or  bankruptcy  of 
the  debtor.  The  rule  that  a  creditor  using  diligence  obtains  a  right  to  the 
subject  attached  which  is  preferable  to  any  uncompleted  disposition  of  the 
subject,  whether  absolute  or  in  security,  may  be  regarded  as  completely  settled 
by  the  recent  case  of  Rohertson  v.  Baxter  (1897,  24  li.  758;  aftd.  1898,35  S.  L.  E. 
963).  In  that  case  A.  indorsed  delivery-orders  for  goods  in  a  warehouse  to  B., 
and  C,  a  creditor  of  A.,  arrested  them  in  the  hands  of  the  warehouse-keeper 
before  B.  had  intimated  his  right.  It  was  held  by  the  whole  Court  (Ld.  Young 
dissenting)  and  by  a  unanimous  judgment  in  the  House  of  Lords,  that  the 
ri"ht  of  B.  could  not  be  completed  without  intimation  to  the  warehouse- 
keeper,  and  that,  seeing  it  was  incomplete,  the  arrestments  used  by  C. 
entitled  him  to  a  preference.  It  was  also  decided  in  the  same  case,  that 
in  a  competition  as  to  the  real  right  to  moveables  situated  in  Scotland, 
between  a  party  holding  an  assignation  and  a  party  holding  diligence, 
the  question  must  be  decided  by  the  lex  rei  sitce  and  the  lex  fori,  i.e. 
by  the  law  of  Scotland,  even  although  the  parties  to  the  assignation  were 
both  domiciled  in  England,  and  the  assignation  itself  took  place  there.  As 
to  the  rules  in  a  competition  between  heritable  creditors,  adjudgers,  and 
inhibitors,  see  Adjudication  ;  Heritable  Securities  ;  Inhibition. 

Bankruptcy  Act,  1696,  c.  5.  — The  validity  of  a  security  may  be 
challenged  under  the  bankruptcy  laws,  either  as  granted  in  security  of  a 
prior  debt,  contrary  to  the  Act  1696,  c.  5,  or  as  excluded  by  tlic  rights  of 
the  trustee  in  bankruptcy.  Many  important  questions  have  arisen  as  to 
the  effect  of  a  challenge  under  the  Act  1696  in  cutting  down  securities 
granted  for  prior  debts,  and  completed  either  by  the  creditor  or  by  the 
debtor  within  sixty  days  of  the  bankruptcy  of  the  latter.  These  cases  have, 
however,  already  been  dealt  with  in  the  article  on  ]5ankrui'TCY. 

Trust  Deeds  for  Creditors. — A  party  may  be  divested  of  his  estates  in 
bankruptcy  either  by  a  trust  deed  for  creditors  or  by  the  legal  assignation 
involved  on  sequestration  or  cessio.  A  trust  deed  for  creditors  is  only  an 
assignation  or  conveyance  in  security,  and  has  no  statutory  elTcct.  It 
requires  to  be  completed,  like  any  other  right  or  security,  by  the  methods 
appropriate  to  the  suljjects  of  property  which  are  conveyed  (Nicolson,  1872, 
11  M.  179;  3fess,  1898,  25  E.  398;  affd.  36  S.  L.  E.  73).  It  may, 
like  any  other  Rccurity  for  prior  debts,  be  cut  down  as  a  fraudulent 
preference  under  the  Act  1696,  c.  5,  if  granted  witliin  sixty  days  of  the 
bankruptcy  of  the  granter  (Stein's  Assignees,  1832,  10  S.  647 ;  Mackenzie, 
1868,  6  M.  833).  Therefore  it  would  seem  clear,  though  tlicrc  does  not 
appear  to  be  any  direct  decision  on  tlie  point,  tliat  any  competition  between 
the  trustee  and  a  non-acceding  creditor,  who  liad  obtained  a  security,  but 
had  not  completed  a  real  right  to  the  subject  thereof,  would  not  be 
determined  in  any  way  by  the  date  of  the  trust  deed,  but  would  depend 
upon  whether  the  trustee  comiileted  his  right  to  tlic  particular  sul»ject 
comprised  in  tlie  security  before  or  after  the  secured  creditors  had  ol)tained 
a  real  rif^ht  therein.     The  creditor  is  therefore  clearly  entitled  to  complete 


158  SECUEITIES 

his  right  after  the  trustee  has  been  appointed,  just  as  he  would  he  entitled 
to  complete  his  right  to  a  prior  security  after  a  second  security  over  the 
same  subject  had  been  granted.  For  instance,  if  a  non-acceding  creditor 
held  an  assignation  of  an  incorporeal  riglit,  say  a  policy  of  insurance,  and 
had  not  completed  his  right  by  intimation  when  the  trust  deed  was  granted, 
he  would  still  be  entitled  to  intimate  to  the  insurance  company,  and  his 
right  would  depend  upon  whether  he  or  the  trustee  gave  the  first  intimation. 
While  this  would  seem  to  be  clear  if  tlie  question  were  with  a  creditor  who 
did  not  accede  to  the  trust,  it  is  probable  that  a  creditor  who  acceded  would 
be  held  to  have  barred  himself  from  completing  any  right  in  security  which 
was  incomplete  at  the  date  of  his  accession  {Mill,  1825,4  S.  219  ;  Meldrum's 
Tr.,  1826,  5  S.  122). 

Seciuestration  or  Cessio. — The  estate  of  a  bankrupt  is  transferred  to  the 
trustee,  on  sequestration,  as  at  the  date  of  the  first  deliverance  (Bankruptcy 
Act,  1856,  ss.  42, 102) ;  in  cessio,  as  at  the  date  of  the  decree  (43  &  44  Vict. 
c.  34,  s.  9).  This  statutory  transmission  has  the  effect,  as  regards  move- 
ables, of  actual  delivery,  or  intimation,  as  the  case  may  require,  and,  as 
regards  heritage,  of  a  decree  of  adjudication  recorded  at  the  date  of  the 
sequestration  (Bankruptcy  Act,  1856,  s.  102).  It  is  not  yet  perfectly  clear 
what  is  the  effect  of  sequestration  upon  inchoate  securities.  There  would 
seem  no  doubt  that  the  debtor's  hands  are  tied,  that  he  cannot  do  any- 
thing to  make  the  security  effectual ;  he  could  not,  therefore,  give  dehvery 
of  moveables  which  he  had  impignorated,  and  of  which  the  creditor  had 
not  taken  possession  (cf.  Pattison's  Tr.,  1893,  20  E.  806).  On  the  other 
hand,  it  is  also  settled  that  in  the  case  of  unregistered  securities  over 
heritable  property  (CormacJc,  1829,  7  S.  868 ;  Lindsay,  1844,  6  D.  771 ;  per 
Ld.  Ormidale  in  Morrison.,  1876,  3  E.  406),  or  of  shares  in  a  company 
{Morrison,  supra),  and  probably  in  the  case  of  a  security  over  any  subject 
held  by  registered  title,  the  sequestration  of  the  debtor  is  not  an  impedi- 
ment to  the  creditor  completing  his  security  by  an  entry  in  the  appropriate 
register.  It  is  then  a  race  of  diligence  between  the  creditor  and  the 
trustee,  and  whichever  first  obtains  registration  will  be  preferred.  A  case 
which  might  seem  to  rest  on  the  same  principles  is  that  of  a  security  by 
an  assignation  unintimated  at  the  date  of  bankruptcy.  In  that  case  the 
debtor  has  done  all  that  lies  in  his  power,  and  the  security  can  be  completed 
by  the  creditor  alone.  Its  completion  by  intimation  within  sixty  days  of 
the  bankruptcy  of  the  debtor  does  not  expose  the  security  to  reduction 
under  the  Act  1696,  c.  5,  as  a  security  for  prior  debts  {Scottish  Provident 
Institution,  1888, 16  E.  112 ;  Guild  {Kettle's  Tr.),  1884,  22  S.  L.  E.  520).  It 
might  therefore  be  held  that  sequestration,  while  it  ties  the  hands  of  the 
debtor,  does  not  tie  those  of  the  creditor.  The  words  of  the  Bankruptcy 
Act,  1856,  however,  by  making  sequestration  equivalent  to  intimated 
assignation,  seem  necessarily  to  infer  that  his  right  must  therefore  be 
preferable  to  that  of  any  creditor  whose  intimation  is  later  in  date.  The 
authorities  also  seem  conclusive  in  favour  of  that  view  {Hill,  1846,  8  D. 
472;  Tod's  Tr.,  1869,  7  M.  1100;  Gray,  1895,  22  E.  326),  though  the 
opinion  of  Ld.  Deas  in  Watson  (1879,  6  E.  1247),  based  on  the  principle 
that  the  trustee  in  bankruptcy  takes  the  estate  tantum  ct  tate  as  it  stood 
in  the  bankrupt,  may  seem  to  cast  some  doubt  upon  them. 

Valuation  and  Deduction  of  Securities. — Where  a  creditor  holds  a  com- 
pleted security  at  the  date  of  the  debtor's  bankruptcy,  he  is  entitled  to  be 
ranked  on  the  bankrupt  estate,  but  his  right  to  a  ranking  varies  according 
as  the  estate  is  distributed  at  common  law  or  imder  the  rules  of  the 
Bankruptcy  Act. 


SECUEITIES  159 

Under  the  Common  Laiv Rules. — In  bankruptcies  regulated  by  the  commoa 
law,  the  rule  is  that  every  creditor  is  entitled  to  be  ranked  for  his  whole 
debt  as  it  existed  at  the  date  of  bankruptcy.  A  secured  creditor  is  there- 
fore entitled  to  be  ranked  for  the  whole  amount  due  to  him,  and  also  to 
realise  his  security.  The  limitation  of  the  right  is  that  he  is  not  entitled 
to  draw,  from  the  dividends  on  the  estate  and  his  security  taken  together, 
more  than  20s.  in  the  £.  Subject  to  this  limit  he  is  entitled  to  be  ranked 
and  to  receive  a  dividend  on  his  whole  debt  (Bell,  Com.  ii.  419  ;  Kirhaldy, 
1841,  4  D.  202;  Molleson,  1884,  11  E.  415).  As,  however,  the  rights  of 
creditors  are  fixed  at  the  date  of  the  bankruptcy,  any  payments  which  he 
may  have  obtained  before  the  bankruptcy,  from  his  security  or  from 
co-obligants,  must  be  deducted  from  his  claim  (Bell,  Com. ;  Hamilton, 
1841,  3  D.  494).  But  although  the  security  is  realised  between  the  date 
of  the  bankruptcy  and  that  at  which  a  scheme  of  ranking  is  actually  drawn 
up,  no  deduction  need  be  made  from  the  claim.  These  rules  are  still 
applicable  on  trusts  for  behoof  of  creditors,  unless  it  is  arranged,  as  it 
usually  is,  that  the  estate  should  be  distributed  according  to  the  rules  of 
the  Bankruptcy  Act. 

Under  Hides  in  Sequestraiion  and  Ccssio. — A  different  rule  prevails  in 
sequestration  (Bankruptcy  Act,  1856  (19  &  20  Vict.  c.  79),  s.  65),  in  cessio 
(A.  S.,  1882,  s.  7),  and  in  the  liquidation  of  a  company  (Companies  Act,  1886 
(49  Vict.  0.  23),  s.  4).     It  is  there  provided  in  effect  that  where  a  creditor 
holding  a   security  over   a   bankrupt   estate   claims   to   be   ranked  as   a 
personal  creditor,  he  is  bound  to  value  his  security,  upon  oath,  and  to  deduct 
that  value  from  his  debt  and  specify  the  balance.     The  section  (65)  is  as 
follows  :  "  To  entitle  any  creditor  who  holds  a  security  over  any  part  of  the 
estate  of  the  bankrupt  to  be  ranked  in  order  to  draw  a  dividend,  lie  shall  on 
oath  put  a  specified  value  on  such  security,  and  deduct  such  value  from  his 
debt,  and  specify  the   balance ;  and  the  trustee,  with  the  consent  of   the 
commissioners,  shall   be   entitled  to  a  conveyance  or  assignation  of  such 
security,  on  payment  of  the  value  so  specified  out  of  the  first  of  the  common 
fund,  or  to  reserve  to  such  creditor  the  full  benefit  of  such  security ;  and 
in  either  case  the  creditor  shall   be  ranked  for  and  receive  a  dividend 
on  the  said  balance,  and  no  more,  without  prejudice  to  the  amount  of  his 
debt  in  other  respects."     On  that  balance  he  is  entitled  to  be  ranked  and 
to  receive  dividends.     But   as   a   check   upon   unduly  low  valuations,  it 
is   provided   that   the   trustee,   with    the   consent   of   the   commissioners, 
may  demand  from  the  creditor  an  assignation  or  conveyance,  at  the  expense 
of  the  estate,  of  the  security  at  the  value  placed  upon  it,  on  payment  of 
that  sum  to  the  creditor  out  of  tlie  first  available  funds.     The  trustee  is 
entitled  to  access  to  the  subjects  of  the  security  in  order  to  see  whether  he 
will  avail  himself  of  the  option  (Boss,  1826,  5  S.  192) ;  but  he  is  bound  to 
decide  within  a  reasonable  time  whether  to  purchase  the  security  or  not, 
particularly  in  cases  where  the  subjects  are  of  fluctuating  value.  Thus  where  a 
creditor  holding  security  over  shares,  in  an  estate  sc(iucstratcd  in  September, 
realised  his  security  in  November,  it  was   held  that  the  trustee  was  not 
entitled,  in  the  following  January  and  after  the  shares  had  risen  in  value,  to 
demand  a  conveyance  of  them  at  the  value  which  the  creditor  had  put  upon 
them  in  making  liis  claim  in  the  sequestration  {Henderson's  I'r.,  1872, 10  M. 
946).     But  the  creditor  is  entitled,  at  any  time  before  a  demand  is  made  by 
the  trustee  for  a  conveyance,  to  revalue  his  security  (Bell,  Com.  ii.  371  ;  Com- 
mercial Bank,  1883, 13  R.  257).    Thus  where,  after  a  first  dividend  had  been 
declared,  the  security  fell  in  value,  it  was  held  that  the  creditor  might  lodge 
a  new  claim,  in  which  the  security  was  valued  at  a  lower  sum,  and  the 


160  SECUEITIES 

balance  was  consequently  larger,  and  that  he  was  entitled  to  be  ranked  on 
the  larger  balance  in  future  dividends  {Commercial  Bank,  supra). 

Meaning  of  Security  in  Bankruptcy  Act. — The  word  "  security  "  in  the 
65th  section  of  the  Bankruptcy  Act  is  held  to  cover  not  only  securities  con- 
stituted by  voluntary  conveyance  and  rights  of  hypothec  and  retention, 
but  also  rights  in  security  acquired  by  the  use  of  diligence  (Bankruptcy 
Act,  1856,  s.  4  ;  Mitchell,  1888,  16  R.  122).  In  making  a  claim  on  a  seques- 
trated estate  for  the  purpose  of  voting,  a  creditor  is  probably  bound  to 
specify  every  security  which  he  holds  over  the  bankrupt  estate,  even 
although  it  may,  as  a  matter  of  fact,  be  valueless  {Mitchell,  supra).  Similarly, 
he  should  mention  and  value  any  security  he  holds  in  claiming  to  be  ranked 
for  a  dividend,  but  he  may  value  the  security  at  a  nominal  sum,  or  at 
nothing.  A  creditor  who  holds  a  security  sufficient  to  secure  his  debt  is 
not  bound  to  claim  to  ba  ranked  on  the  sequestrated  estate  {Brown,  1849, 
11  D.  494).  If,  however,  he  abstains  from  doing  so,  and  the  security  turns 
out  to  be  insufficient,  it  is  not  settled  whether  he  can  claim  and  be  ranked  for 
future  dividends,  though,  on  the  principle  of  Commercial  Bank  v.  Speedies 
Trs.  {supra),  it  would  appear  that  he  should  be  entitled  to  do  so. 

Securities  over  "  Estate  of  Bankrupt." — The  securities  which  a  creditor  is 
bound  to  value  and  deduct  are  those  "  over  any  part  of  the  estate  of  the 
bankrupt."  If,  therefore,  the  security  held  by  the  creditor  consists  of  the 
personal  obligation  of  a  third  party,  or  covers  property  not  belonging  to 
the  bankrupt,  he  is  not  bound  to  value  and  deduct,  but  may  rank  on  the 
bankrupt  estate  for  his  whole  debt,  and  also  utilise  his  security  to  the 
extent  of  obtaining  full  payment.  An  exception  is  admitted  in  the  case 
where  a  creditor  claims  to  be  ranked  on  the  estate  of  a  partner  of  a  company 
for  a  company  debt.  The  value  of  the  claim  against  the  company  must 
then  be  estimated  by  the  trustee,  and  deducted  from  the  creditor's  claim 
(Bankruptcy  Act,  s.  66).  The  case  where  the  security  consists  of  the  personal 
obligation  of  a  third  party  is  dealt  with  under  Cautionaky  Obligations 
(g'.v.).  In  the  case  of  real  securities  the  question  whether  they  must  be  valued 
and  deducted  depends  upon  whether  the  subjects  were,  at  the  date  of  the 
sequestration,  the  property  of  the  bankrupt,  or,  as  it  may  be  otherwise  put, 
whether  the  subjects  would,  but  for  the  security,  have  passed  to  the  trustee 
as  part  of  the  assets  of  the  estate  {Royal  Bank,  1877, 15  S.  L.  R  13 ;  University 
of  Glasgoio,  1882,  9  R.  643  ;  Roijal  Bank,  1882,  9  E.  679).  It  is  im- 
material by  whom  the  security  was  granted,  or  to  whom  the  subjects  belonged 
at  the  date  of  granting,  as  the  question  is  one  of  their  ownership  at  the  date 
of  the  sequestration.  Thus  the  debtor  in  a  bond  and  disposition  in  security 
sold  the  subjects  under  an  agreement  by  which  the  personal  obligation 
transmitted  against  the  purchaser.  The  creditor  was  no  party  to  the  trans- 
action. On  the  bankruptcy  of  the  original  debtor  it  was  held  that  the 
creditor  would  rank  on  his  estate  for  the  whole  debt,  without  deducting 
the  value  of  the  security,  because  the  subjects  of  the  security  had  ceased  to 
be  the  property  of  the  bankrupt  before  the  date  of  the  sequestration 
{University  of  Glasgow,  supra).  Conversely,  in  Royal  Bank  the  partner 
in  a  firm  granted  a  security  over  his  private  property  for  a  company  debt. 
The  property  thus  conveyed  in  security  was  afterwards  acquired  by  the 
company.  It  was  held  that  the  creditor,  in  ranking  on  the  sequestrated 
estate  of  the  company,  was  bound  to  value  and  deduct  the  security  granted 
by  the  partner,  because  the  subjects  were  the  property  of  the  company  at 
the  date  of  the  sequestration  {Royal  Bank,  1882,  9  B.  679). 

In  considering  whether  the  subjects  of  a  security  form  any  part  of  a 
bankrupt  estate,  it  would  seem  that  regard  is  to  be  had  to  the  nominal 


SEDITIOX  IGl 

title,  rather  than  to  the  beneficial  ownership.  Subjects  to  which  the 
bankrupt  lias  the  nltiniate  right,  but  to  which  a  third  party  possesses  an 
apparently  unqualified  title,  are  not  part  of  the  bankrupt's  estate  in  the 
sense  of  sec.  65  of  the  Bankruptcy  Act.  The  trustee  could  not  acquire 
these  subjects  if  the  security  were  out  of  the  way :  he  would  only  acquire  a 
right  to  a  conveyance  of  them  from  the  party  in  whose  name  they  stand 
{Royal  Bank,  1877,  15  S.  L.  IJ.  13;  British  ^Lincii  Co.,  1877,4  l\.  651). 
Thus  where  a  partner  granted  to  a  l)ank  a  security  over  subjects  of  which  lie 
was  the  apparent  owner,  to  cover  a  company  debt,  and  it  was  proved  that 
he  held  in  reality  as  a  trustee  for  the  company,  it  was  held  that  whether 
the  bank  was  aware  of  the  trust  or  not,  there  was  no  ol)ligation  to  value 
and  deduct  the  security  in  ranking  on  the  se(|uestrated  estate  of  the  com- 
pany {Royal  Bank,  siqrra). 

The  principle  above  indicated  is  of  importance  in  the  case  where  two 
persons  are  bound  for  the  same  debt,  and  a  security  granted  by  one  of  them 
in  favour  of  the  other  has  been  assigned  to  the  common  creditor.  It  is 
then  a  question  upon  which  estate  the  security  should  be  deducted  in 
ranking.  If  the  security  was  constituted  by  ex  facie  absolute  title,  it  is 
settled  that  it  must  be  valued  and  deducted  in  claiming  on  the  estate  of 
the  grantee,  in  whose  name  the  absolute  title  stood,  and  not  on  that  of  the 
granter,  although  the  ultimate  beneficial  interest  in  the  subjects  might  vest 
in  his  estate  {British  Linen  Co.,  1877,  4  E.  651 ;  ex  parte  Brett,  1871,  L.  E. 
€  Ch.  838).  Thus  A.  obtained  an  advance  from  B.,  accepted  a  bill  for  it,  and 
made  out  bills  of  lading  in  favour  of  B.  for  a  cargo  which  then  belonged  to 
him.  B.  discounted  the  bill  with  a  bank,  and  indorsed  the  bill  of  lading  as 
security  for  it.  On  the  bankruptcy  of  A.  and  B.  it  was  decided  that  the 
bank  must  value  and  deduct  their  security  over  the  bills  of  lading  in  rank- 
ing on  the  estate  of  B.,  and  not  on  that  of  A.,  on  the  ground  that  as  B.  had 
been  invested  with  an  absolute  title  to  the  cargo  by  having  the  bills  of 
lading  taken  in  his  name,  the  property  in  it  was  part  of  his  estate  in  l)ank- 
ruptcy,  subject,  no  doubt,  to  an  obligatifm  to  reconvey  it  to  A.  on  repayment 
of  the  advance  made  upon  it  {British  Linen  Co.,  snpra).  Where  the  security 
is  taken  by  a  title  ex  facie  limited,  it  is  more  doubtful  on  which  estate  the 
security  should  be  deducted.  Thus  if  A.  grants  to  B.  a  bond  and  disposition 
in  security,  and  tiie  bond  is  assigned  l)y  B.  to  a  bank  for  a  debt  (m  which 
both  are  lialjle,  on  which  estate  should  the  bank  value  and  deduct  that 
securitv  ?  In  the  oinnion  of  Ld.  Shand  it  should  be  deducted  in  rankin<:c  on 
the  estate  of  B.,  but  Ld.  ])eas  was  of  a  different  opinion  {British  Linen  Co., 
supra,  per  Ld.  Shand,  at  p.  656,  and  Ld.  Deas,  at  p.  655).  It  is  clear  that 
in  the  case  supposed  A.  had  the  benefit  of  the  advance  for  whicli  the 
liond  was  given,  and  therefore  his  estate  should  jjcar  the  liurdcn  of  it  with- 
out deduction.  But  tlie  question  is  not  one  of  ei|uilable  ju-inciples,  but  of 
the  construction  of  the  terms  of  the  65tli  sec.  of  the  Bankruptcy  Act,  and 
it  is  (Hllicult  to  hold  that  subjects,  over  which  A.  had  gi-antcd  a  bond  and 
disposition  in  security,  were  not  a  part  of  his  estate  on  his  bankruptcy. 


Sederunt,  Act  of.— See  Act  of  Sederunt. 


Sedition. — The  common  law  crime  of  sedition  embraces  all  practices, 
by  writing,  speech,  or  conduct,  which  are  suited  and  calculated  to  disturl) 
the  tranquillity  of  the  realm  ami  incite  tlie  ])0O])lc  to  coerce  the  CJovernnicnt 
or  control  legislation    by  unconstitutional  means.     Merc  criticism  of  the 

S.  E.— VOL.  XI.  11 


1G2     SEDUCING  KOYAL  FOECES  TO  MUTINY  OR  DESERTION 

Legislature  or  Government,  however  violent  and  ungovernable  it  may  be, 
is  not  sedition,  unless  it  tends  to  create  disaffection,  or  stir  up  tumult. 
There  is  no  need  to  prove  intention  on  the  part  of  the  accused  to  bring 
about  such  a  result  {Grant  and  Others,  1848,  J.  Shaw,  17  and  51).  It  is 
sufficient  that  tumult  and  violence  were  the  likely  sequences  of  his  conduct. 
Where  there  is  actual  tumult  and  violence,  it  will  depend  on  the  circum- 
stances of  the  case  whether  or  not  the  common  law  crime  of  sedition  has 
merged  into  the  statutory  one  of  treason. 

Punishment. — Formerly  sedition  was  punished  by  an  arbitrary  sentence. 
The  Act  6  Geo.  iv.  c.  67  restricted  the  sentence  to  one  of  fine  and  im- 
prisonment, with  an  alternative  of  banishment  on  a  second  offence.  This 
alternative  was  taken  away  by  7  Will.  iv.  c.  5. 

[Hume,  i.  533;  Alison,  i.  581;  Ersk.  iv.  4.  29;  Macdonald,  235; 
Anderson,  Criminal  Law,  35.] 


Seeliicing  Royal  Forces  to  Mutiny  or  Desertion. 

— Any  person  wlio  maliciously  and  advisedly  seduces  any  person  of  the 
Royal  (land  or  sea)  Forces  from  his  allegiance,  or  who  incites  or  stirs  up 
any  such  person  to  commit  any  act  of  mutiny,  or  to  make  or  endeavour  to 
make  any  mutinous  assembly,  or  to  commit  any  traitorous  or  mutinous 
practice  whatsoever,  is  liable  to  penal  servitude  for  life,  or  not  less  than 
fourteen  years,  or  imprisonment  not  exceeding  three  years.  (37  Geo.  in. 
c.  70;  57  Geo.  iii.  c.  7 ;  7  Will.  iv.  and  1  Vict.  c.  91,  s.  1;  20  &  21  Vict, 
c.  3,  s.  2.)    See  Desertion  (Naval,  Military  ;  etc.). 


Seduction. — The  leading  example  of  seduction  is  obtaining 
carnal  knowledge  of  a  woman  under  promise  of  marriage.  Seduction  is 
usually  spoken  of  in  the  books  as  involving  fraud  or  dole,  but  in  the  case 
13ut  that  element  does  not  require  to  be  present  at  the  date  of  the  promise 
or  connection.  It  may  be  held  to  occur,  however,  when  the  man  breaks, 
or  refuses  without  just  cause  to  implement,  his  promise  of  marriage ; 
and  apparently  breach  of  promise  is  of  the  essence  of  the  action.  Bub 
there  may  be  liability  where  there  has  been  something  short  of  an 
actual  promise  (and  where,  consequently,  there  has  been  no  breach),  as 
if  a  man  has  behaved  so  as  to  induce  a  woman's  consent  to  connection 
upon  a  reasonable  expectation  of  marriage  caused  by  his  conduct.  It  was 
held  relevant  to  allege  as  seductive  means,  that  the  defender  had  courted 
and  professed  honourable  intentions  towards  pursuer  during  a  period  of 
eighteen  months  {Gray,  1878,  5  R.  97;  iJ/'C««f?2/,  1826,  4  S.  520  or  527; 
Kay,  1850,  12  D.  845).  It  has  also  been  said  that  artful  practices  to 
corrupt  or  entrap  an  inexperienced  female  {Stewart,  1837,  12  F.  C. 
1097 ;  aflll.  1841,  2  Rob.  App.  547,  8  CI.  &  Fin.  309),  and  continued  solicita- 
tions of  a  female  in  a  position  of  dependence,  when  followed  by  success, 
may  be  sufficient  to  constitute  seduction  {Buchanan,  16  June  1785,  F.  C. ; 
Linning,  1748,  Mor.  13909).  But  carnal  connection  is  not  seduction, 
and,  unless  it  has  been  induced  in  some  of  the  ways  pointed  out,  gives  no 
claim  of  damages,  however  injurious  it  may  have  proved  to  the  woman 
{Camjjhell,  1826,  2  W.  &  S.  309).  Previous  bad  character  on  the  part  of 
the  pursuer  is  not  an  absolute  bar  to  an  action,  but  will  receive  great 
eff'ect  in  mitigating  damages  {Walker,  1857,  19  D.  340). 

Adultery,  that  is,  connection  with  a  married  woman,  whether  seduction 
or  not,  always  gives  her  husband  a  claim  of  damages  against  the  adulterer. 


SEMIPLENA  PEOBATIO  16 


o 


It  is  no  defence  to  an  action  at  a  husband's  instance  that  his  wife  was  a 
willing  victim,  or  was  the  party  who  induced  the  act,  since  it  is  for  the 
invasion  of  his  own  rights,  and  not  as  representing  his  wife,  that  a  husband 
sues.  But  the  circumstances  in  which  the  adultery  occurred  are  relevant 
to  the  estimation  of  damages  {Baillie,  1818,  1  Mur.  334).  A  husband 
does  not  require  to  bring  an  action  of  divorce  agaiust  his  wife  to  make 
an  action  for  damages  competent  {Paicrson,  10  Dec.  1803,  F.  C),  and  is 
not  barred  by  pardoning  the  offence  and  resuming  cohabitation  with  her 
{Macdonalcl,  1885,  12  E.  327). 

Since  the  law  of  England  does  not  give  an  action  to  a  woman  for 
her  seduction,  it  follows  that  no  action  will  lie  on  this  ground  for  an 
act  committed  in  England  {Ross,  1891,  19  E.  31). 

[Glegg  on  Reparation,  96-99 ;  Walton  on  H.  &  W.  296-298.] 


Self- Defence. — See  Culpable  Homicide;  Assault. 


Semi  plena  probatiO — a  half  proof. — In  affiliation  actions, 
a  pursuer  was  formerly  entitled,  on  adducing  a  scmiplcna  prohatio,  to 
her  oath  in  supplement,  to  prove  that  the  defender  was  the  father  of  her 
child.  A  semiplena  prohatio  was  just  enough  proof  to  show  that  the  woman 
was  not  falsely  naming  a  person  father  at  her  pleasure.  It  was  such  a  proof 
as  induced,  not  merely  a  suspicion  but  a  reasonable  belief  that  the  pursuer's 
case  was  well  founded,  and  consisted  generally  of  a  proof  of  opportunity 
for  connection,  acts  of  familiarity  on  the  part  of  the  defender  towards  the 
pursuer,  etc.  Ld.  Pres.  Boyle,  in  Mann  Forrest  (1850,  12  D.  1090),  has 
said :  "  What  is  semiplenct  prohatio,  must  be  judged  of  according  to  the 
circumstances  of  each  case.  The  only  rule  that  can  be  laid  down  is  that 
semiplena  prohatio  is  evidence  on  which  you  can  rely  amounting  to  almost 
complete  proof,  and  the  oath  is  just  to  fill  up  any  little  deficiency  that  may 
exist  therein."  The  evidence,  apart  from  that  of  the  woman,  was  narrowly 
scanned,  and  if  the  witnesses  were  all  persons  of  bad  character,  the  Court 
considered  what  weight  should  be  given  to  such  testimony.  In  such  a  case 
the  semiplena  j^rohatio  v,-as  held  not  to  be  established  {Mann ,  supra)  \  and 
where  the  evidence  of  the  pursuer  under  the  new  system  is  only  supported 
by  such  witnesses,  the  effect  to  be  given  to  it  will  be  judged  of  in  the 
cii-cumstances  of  the  case.  There  are  a  great  many  cases  reported,  in  some 
of  whicli  semiplena  prohatio  M'as  found  estaljhslied  and  in  others  not.  Tlic 
facts  of  one  case,  however,  can  never  be  identical  with  those  of  another,  and 
every  case  must  be  tried  by  itself.  But  certain  points  of  general  applica- 
tion settled  by  the  decisions  will  be  found  in  Eraser's  Parent  and  Child 
(134  et  srq.). 

In  addition  to  tlie  scmiplcna  2'>rohatLO,  the  pursuer  was  entitled,  as  already 
mentioned,  to  her  oath  in  supplement  to  complete  her  proof,  because  in  such 
cases  it  was  rarely  possible  to  obtain  direct  evidence  of  the  alleged  connec- 
tion, except  from  th(j  woman  herself.  If  the  Court  held  that  a  scmiplcna 
prohatio  was  estabh'shcd — i.e.  that  the  pursuer  had  proved  intercourse 
likely  to  liavc  been  the  cause  of  her  child's  birtli,  —  an  interlocutor  was 
pronounced,  allowing  the  woman  to  give  her  oath  in  supplement  of  her 
defective  proof.  She  then  appeared  as  a  witness  in  the  cause.  Tliis  was 
different  from  an  oath  on  reference  {M'Nai'r/hton,  1838, 10  S.  614  and  1103). 
M'NaAifjhI.oa's  case  fixed  tliat  a  woman  giving  her  oath  in  sup])lenient  was 
truly  in  the  situation  of  an  additional  witness  in  tlie  cause.     Where  the 


164  SENATOKS  OF  COLLEGE  OF  JUSTICE 

oath  was  contradictory  of  the  scmipkna  prohatio  in  the  special  facts  deponed 
to,  the  defender  was  assoilzied  {MNaughton,  supra) ;  and  if  the  woman  died 
before  giving  her  oath,  the  whole  case  was  at  an  end  (Dohhie  v.  Gaff,  18  July 
18-43).  ^  After  a  woman  had  given  her  oath  in  supplement,  she  could  not 
then  be  judicially  examined  {Jameson,  14  Jan.  1820,  F.  C).  _ 

Since  the  Evidence  Act,  1853  (16  &  17  Vict.  c.  20),  the  rules  relating 
to  scmipkna  i^rohaiio  have  been  entirely  superseded.  The  Act  applies  to 
actions  of  filiation,  and  in  every  case  the  parties  are  examined  as  witnesses 
in  causa ;  and  the  woman  having  thus  appeared  as  a  witness,  is  not  entitled, 
on  the  ground  of  a  semiplena  jnvhatio  having  been  established,  to  emit  her 
oath  in^supplement.  The  law  as  it  now  stands  was  precisely  stated  by  Ld. 
J.-Cl.  Inglis  in  the  case  of  MBaync  (1860,  22  D.  738),  and  his  language  is 
so  often  referred  to  that  it  may  be  here  quoted :  "  Filiation  cases  have  no 
longer  the  peculiarity,  that  the  evidence  of  one  of  the  parties  is  received  as 
conclusive  after  a  scmipkna  prohatio  1ms  been  made  out.  The  evidence  is 
to  be  dealt  with  as  in  other  cases ;  the  parties  are  the  principal  witnesses, 
they  know  the  facts  which  lie  at  the  bottom  of  the  case,  and  what  the  Court 
has  to  consider  is,  on  the  whole  evidence,  on  which  side  is  the  balance  of 
credibility."  The  rule  laid  down  in  MBaync  has  been  followed  by  the 
Court  ever  since,  and  in  the  recent  case  of  Young  (1893,  20  B.  768)  it  was 

expressly  approved  of.  m  -n  -^no 

See  Affiliation  ;  Bell's  Prin.  s.  2061 ;  Eraser's  Parent  and  Child,  132 

et  seq. 

Senators  of   College    of   Justice.  — See  College   of 
Justice. 


Sentence. — in  a  literal  sense  a  "sentence"  is  the  "opinion"  of 
a  judge  on  the  facts  of  a  criminal  case.  Thus,  in  its  most  comprehensive 
sense,  the  term  includes  judgments  of  acquittal,  complete  and  qualified,  as 
well  as  judgments  of  condemnator.  But  the  word  is  usually  employed  to 
denote  the  award  of  punishment  inflicted  by  a  judge  after  a  verdict  or 
finding  of  guilty  of  a  criminal  charge  has  been  reached. 

When  a  verdict  of  guilty  has  been  reached,  the  prosecutor  moves  the 
Court  to  pronounce  sentence.  No  sentence  can  be  pronounced  if  the 
prosecutor  does  not  appear  or  if  he  declines  to  move  for  sentence  {Nicolsoyi, 
1829,  Bell,  Notes,  300 ;  Smith,  1842,  it.).  In  a  capital  case  the  prosecutor 
may,  at  any  period  of  the  trial,  and  even  after  verdict,  restrict  the  pains 
of  law  to  an  arbitrary  punishment.  A  charge  laid  both  on  statute  and 
common  law  may  be  restricted  to  the  common  law  charge. 

The  accused  must  also  be  present  when  sentence  is  pronounced,  unless 
he  has  been  convicted  under  a  statute  which  authorises  trial  and  sentence 
in  the  absence  of  the  accused.  Sentence  of  outlawry  is  necessarily  pro- 
nounced ill  the  accused's  absence.  The  accused  must  also  be  in  his 
senses  when  sentence  is  to  be  pronounced,  otherwise  the  diet  will  be 
adjourned. 

Pleas  in  Bar  of  Sentence. — The  accused  is  entitled  to  state  competent 
pleas  in  bar  of  sentence.  It  is  incompetent  to  urge  in  bar  of  sentence 
objections  to  the  libel  {Allan,  1872,  2  Coup.  402),  or  to  the  evidence  which 
has  been  led.  It  is  a  bad  objection  to  sentence  to  allege,  after  the  verdict 
has  been  returned,  that  during  the  trial  a  juryman  was  out  of  the  custody 
of  the  officers  of  Court.     The  proper  time  to  state  such  an  objection  is 


SENTENCE  165 

before  the  jury  have  returned  then-  verdict  {Luke,  1866,  5  Irv.  293).     The 
only  competent  pleas  in  bar  of  judgment  are  these: 

(1)  That  the  verdict  is  insufficient,  i.e.  that  it  does  not  amount  to  a 
verdict  of  guilty  of  the  charge  libelled. 

(2)  That  sentence  is  beyond  the  powers  of  the  Court.  Almost  the  only 
question  raised  under  this  head  has  been  the  case  of  a  trial  on  circuit 
taking  place  in  a  different  month  from  that  mentioned  in  the  libel,  but 
this  objection  was  repelled  (M'Kay  and  Broadly,  1861,  4  Irv.  97). 

(3)  That  the  accused  is  unfit  to  undergo  the  sentence.  Under  this 
plea  it  is  competent  for  a  pregnant  female,  convicted  of  a  capital  crime, 
to  ask  for  delay  in  pronouncing  sentence  of  death.  If  her  plea  is  sub- 
stantiated, sentence  is  postponed  till  delivery  has  taken  place. 

The  accused  is  entitled  to  urge  any  competent  plea  in  mitigation  of 
punishment.     See  Punishment. 

The  sentence  must  be  consistent  with  the  libel.  If  imprisonment  is 
craved,  it  is  incompetent  to  order  payment  of  a  fine  {Hood,  1853,  1  Irv. 
236).  So  it  is  incompetent  to  imprison  when  a  fine  is  the  penalty  craved 
in  the  libel  {Orr,  1855,  2  Irv.  183).  If  the  crime  is  a  statutory  one,  the- 
sentence  is  invalid  if  the  statutory  penalty  is  not  inflicted  {Ferguson,  1862,. 

4  Irv.  196 ;  Gardner,  1865,  5  Irv.  13).  If  a  cumulative  penalty  is  imposed 
where  only  alternatives  are  sanctioned,  the  sentence  is  nugatory  {Mcthven, 
1848,  J.  Shaw,  146).  If  a  sentence  of  penal  servitude  or  imprisonment  is 
pronounced,  the  period  must  be  fixed.  It  is  incompetent  to  pronounce  a 
sentence  of  imprisonment  "not  exceeding"  a  certain  period  {Grant,  1855,. 
2  Irv.  227). 

In  a  High  Court  case  the  presiding  judge  may  certify  the  case  to  a 
fuller  bench  to  determine  the  question  of   imprisonment  {Watson,  1884, 

5  Coup.  448). 

The  presiding  judge  announces  the  sentence,  which  is  minuted  in  the 
record  and  signed  by  the  Clerk  of  Court.  The  Criminal  Procedure 
(Scotland)  Act,  1887  (50  &  51  Yict.  c.  35),  provides  (s.  57)  that  in  all 
cases,  whether  in  the  Sheriff  Court  or  in  the  High  Court  of  Justiciary,  the 
sentence  to  be  pronounced  shall  be  announced  by  the  judge  in  open  Court ; 
and  all  such  sentences,  except  sentences  of  death,  shall  be  entered  in  the 
record  in  the  short  form  now  in  use  in  the  Court  of  Justiciary;  and  it 
shall  not  be  necessary  to  read  the  entry  of  the  sentence  from  the  record ; 
and  the  form  and  mode  in  which  any  sentence  of  death  shall  be  entered 
in  the  record  shall  be  such  as  the  Higli  Court  of  Justiciary  may  appoint 
by  Act  of  Adjournal.  In  capital  cases  the  sentence  is  read  out  from  the 
record  l)y  the  presiding  judge  (Act  of  Adjournal,  1st  Aug.  1849).  Sentences 
of  imprisonment  run  from  the  date  of  judgment.  If  the  accused  is  already 
undergoing  imprisonment  for  a  previous  offence,  the  new  sentence  may  be 
appointed  to  commence  on  the  expiry  of  the  first  period  {Graham,  1842, 
1  Broun,  445).  In  the  case  of  a  capital  sentence,  tliQ  Court  must  fix  a 
date  for  tlie  execution  not  less  than  fifteen  days  or  more  than  twenty-one 
days  after  judgment,  if  south  of  the  Forth ;  and  not  less  tlian  twenty-one 
days  or  more  than  twenty-seven  days,  if  north  of  tlic  Forth  (2  Geo.  iv.  and 
1  Will.  IV.  c.  37).  The  High  Court  has  power  to  alter  the  day  fixed  for  an 
execution. 

An  incompetent  or  imperfect  sentence,  which  has  not  been  issued  or 
acteil  ujxiii,  may  be  superseded  by  a  correct  one  (Forlrs,  1865,  5  Irv.  213). 
The  executorial  part  of  a  sentence  nuiy  be  alteied  after  issue  of  the 
sentence,  provided  no  substantial  alteration  is  made  upon  the  sentence 
itself    {.Mackenzie,    1889,    2    Wliite,    253).     After   a    sentence    has    l)ecn 


166 


SEPAEATION  (OF  SrOUSES) 


pronounced,  it   is   incompetent   for  any  Court   to   make   any  substantial' 
alteration   or   amendment   of   it.      (But  see   Stewart,  1855,  2    Irv.   327; 
Clarkson,  1871,  2  Coup.  125.) 

[Hume,  ii.  470;  Alison,  ii.  653;  Macdonald,  511;  Anderson,  Criviinal 
Law,  258.] 


Separation  (of  Spouses).— See  Judicial  Sepaeation. 


Septennial    Prescription.— See  Cautionary  Obligations 
-(Septennial  Limitations  of). 


Sepulchres,  Violating'.—See  Violating  Sepulchees. 

Sequels. — Sequels  were  payments  originally  in  kind  exigible  under 
the  obligation  of  thirlage  in  addition  to  tlie  multures  (the  price  of  grind- 
ing). They  were  the  payments  for  the  services  of  the  miller  and  his 
servants.  Whether  originally  voluntary  or  not  (cf.  Mar,  1610,  Mor. 
15962 ;  rev.  by  Adamson,  infra),  they  came  to  be  exacted  as  a  matter  of 
right.  Under  an  Act  of  William  (xxxv.,  Thorns.  Acts,  p.  59)  each  mill 
was  required  to  have  a  miller  and  two  assistants,  and  their  fees  (sequels) 
were  respectively  knaveship,  and  bannock,  and  lock  or  gowpen.  They 
were  due  over  and  above  the  stipulated  multures  {Camiilell,  1672,  Mor. 
15978).  Like  multures,  they  were  exigible  whether  the  corn  was  ground 
at  the  mill  or  not,  and  they  could  be  sued  for  in  an  action  of  abstracted 
multures,  the  reason  assigned  being  that  these  servants  must  be  in 
attendance  at  the  mill  to  serve  the  thirl,  whether  they  were  actually 
employed  or  not  (Adamson,  1628,  Mor.  15965,  1  B.  S.  221).  Though  not 
expressed,  they  were  necessarily  implied  in  a  general  obligation  to  pay 
multures  {Malcolm,  1697,  Mor.  15990);  and,  similarly,  liberation  from 
thirlage  in  general  terms  by  infeftment  cum  molendinis,  etc.,  necessarily 
freed  from  liability  for  sequels  (Caskihen,  1612,  Mor.  15963).  But  there 
might  be  astriction  for  sequels  only  (see  U.  of  Cassilis,  1667,  Mor.  15977). 

See  Thielage  ;  Knaveship  ;  Bannock  ;  Lock  ;  Gowpen. 


Sequestration. 


I. 

Proceedings  to  obtain  Se- 

X. 

questration 

167 

II. 

Recall  of  Sequestration   . 

177 

XL 

III. 

Registration  and  Publica- 

tion OF  Sequestration     . 

181 

XII. 

IV. 

Interim    Preservation   of 

Estate       .... 

182 

XIII. 

V. 

Claims  for  Voting 

183 

VI. 

First  Meeting  —  Election 

XIV 

OF    Trustee    and     Con- 

XV. 

firmation 

190 

XVI. 

VII. 

Election     and    Duties    of 

Commissioners  . 

195 

XVII. 

VIII. 

Examination  of  Bankrupt 

196 

XVIII. 

IX. 

Sequestration  in  Relation 

XIX. 

to  Diligence    . 

193 

XX. 

Vesting    of     Estate    in 

Trustee         .        .        .200 
Management  and  Realis- 
ation of  Estate    .        .  215 
Ranking  of  Claims— Pay- 
ment of  Dividends       .  220 
Discharge  of   Bankrupt 

without  Composition  .  228 

Composition  Contract     .  234 

Deed  of  Arrancjement     .  241 
Judicial  Proceedings — 

Appeals         .        .        .  242 
The  Trustee     .        .        .246 

The  Bankrupt  .        .        .  251 

The  Creditors  .        .        .  253 

The  Accountant  of  Court  255 


SEQUESTEATION  IG^ 


NatupvE  Generally. 


Sequestration  as  a  process  for  the  attachment  of  an  insolvent  debtor's 
estate  and  its  rateable  distribution  among  his  creditors  was  first  introduced 
in  the  year  1772,  by  the  Act  12  Geo.  in.  c.  72.  The  Act  was  limited  in 
duration  to  ten  years,  and  in  its  operation  to  the  debtor's  moveable  estate. 
On  its  expiry  in  1782,  a  new  Act  was  passed  (23  Geo.  in.  c.  18),  which 
re-enacted  the  provisions  of  the  previous  one,  and  extended  the  operation 
of  sequestration  to  heritable  as  well  as  moveable  estate,  but  restricted 
the  process  to  debtors  engaged  in  trade.  This  Act  was  succeeded  by  the 
Statutes  33  Geo.  in.  c.  74,"and  54  Geo.  in.  c.  137,  the  latter  of  which  was 
renewed  from  year  to  year  until  the  Sequestration  Act  of  1839  (2  &  3 
Vict.  c.  41)  was  enacted  as  a  permanent  statute.  The  Act  of  1839,  among 
other  improvements,  extended  the  process  of  sequestration  to  deceased 
debtors,  whether  traders  or  not.  It  was  amended  in  1853  by  the  Act  16  & 
17  Vict.  c.  53,  and  it  was  entirely  superseded  and  repealed  in  1856,  when 
the  existing  Bankruptcy  (Scotland)  Act,  1856  (19  &  20  Vict.  c.  79),  was 
passed.  By  the  Act  of  1856  sequestration  was  made  applicable  to  the 
case  of  air  debtors,  whether  engaged  in  trade  or  not  (s.  13),  and  another 
important  change  was  made  in  conferring  on  tlie  Sheriff  Court  jurisdiction 
to  award  it  (ss.  18,  19).  Various  other  amendments  of  the  law  were  made 
by  the  Act  which  it  is  unnecessary  here  to  particularise.  The  Act  of  1856, 
which  continues  to  be  the  principal  Bankruptcy  Act  in  Scotland,  has  been 
amended  by  the  Acts  20  &  21  Vict.  c.  19 :  23  &  24  A^ict.  c.  33 ;  38  &  39 
Vict.  c.  26  ;  43  &  44  Vict.  c.  34 ;  44  &  45  A'ict.  c.  22 ;  45  &  46  Vict.  c.  42 ; 
47  &  48  Vict.  c.  16 :  and  52  &  53  Vict.  c.  39.  Certain  sections  also  of  the 
English  Bankruptcy  Act  of  1883,  relating  to  disabilities  of  per-ons  made 
bankrupt,  and  the  enforcement  of  bankruptcy  orders  throughout  the  United 
Kingdom,  etc.,  extend  to  Scotland  (46  &  47  Vict.  c.  52,  ss.  32,  117,  118, 
119). 

In  view  of  tlie  wide  range  of  the  subject,  the  aim  in  the  present  article 
has  been  to  give  preference  to  the  aspects  of  it  most  important  in 
ordinary  practice,  and  to  eliminate  topics  of  bankruptcy  law  not  immedi- 
ately pertinent  to  sequestration.  Such  subjects  as,  e.j/.,  the  constitution  of 
notour  Ijankruptcy,  and  fraudulent  alienations  or  preferences  by  insolvent 
debtors,  will  be  found  fully  treated  under  the  headings  of  Baxkelttcy  and 
Insolvency. 

I.  Pkoceedings  to  obtain  Sequestration. 


1.  Debtors    ■who    may   Le    Seques- 

trated         107 

2,  Conditions  of  Liability  to  Seques- 


3.  Creditor'sQualification  to  Petition 

or  Concur  .         .         .         .     1 70 

4.  Petition  for  Sequestration    .         .172 


tration 1G8    |    5,  Award  of  Sequestration       .         .175 

1.  Debtors  "wiio  may  ije  Sequestrated. — The  Bankruptcy  Act  gives  no 
definition  of  debtors  lial)lc  to  sequestration  other  than  tliat  contained  in  sec. 
13,  which  defines  tlie  con<btions  under  whicli  se(iucstration  may  1)C  awarded 
of  the  estate  of  "a  living  debtor  subject  to  tlic  jnrisihction  of  the  Sui)reme 
Courts  of  Scotland,"  or  of  "a  deceased  debtor  who  at  the  date  of  his  death 
was  subject  to  the  jurisdiction  of  the  Supreme  Courts  of  Scotland."  Tliis 
<l('finition  altrogatcd  tlic  restriction  of  sci|Ucstration  in  tl)C  case  of  living 
<hjV)tors  to  those  in  trade  which  obtained  under  the  prior  law  (see  supra). 
From  the  generality  of  the  definition  it  follows  that  any  exemption  from 
sequestration  must  be  sought  for  outside  the  Act.     Thus,  joint-stock  com- 


168  SEQUESTEATION 

panies  registered  under  the  Companies  Acts,  although  lialJe  to  be  made 
notour  bankrupt,  are  exempt  from  sequestration  because  the  winding-up 
procedure  provided  by  these  Acts  is  exclusive  {Standard  Frojyerfy  Investment 
Co.,  1884,  12  E.  328) ;  and  railway  companies,  being  exempt  by  statute 
from  ordinary  diligence  (30  &  31  Vict.  c.  126,  s.  4),  can  only  be  wound  up 
by  Act  of  Parliament  (Raldane,  1881,  8  E.  669  ;  Haldane,  1881,  9  E.  253). 
No  other  class  of  debtor,  however,  against  whom  notour  bankruptcy  can  be 
constituted,  appears  to  be  exempt  from  sequestration.  Thus,  given  notour 
bankruptcy,  sequestratidU  is  competent  in  the  case  of  married  women, 
pupils  and  minors,  lunatics,  peers  and  members  of  Parliament,  partnerships, 
corporate  bodies,  such  as  burghs  {Wothers-poon,  1863,  2  M.  348),  aliens  and 
undischarged  bankrupts  {Fisken,  1845,  7  D.  842  ;  Taylor,  1879,  7  E.  128 ; 
Abel,  1883,  HE.  149).  For  the  conditions  under  which  notour  bankruptcy 
may  be  constituted  against  these  respective  classes  of  debtors,  reference  is 
made  to  the  article  on  Bankruptcy  (see  also  Goudy  on  Bankruptcy,  74-80, 
121-122).  In  England  a  married  woman  could  not  be  adjudicated  bank- 
rupt prior  to  the  Married  Women's  Property  Act,  1882,  unless  she  had 
obtained  a  decree  of  judicial  separation  or  a  protection  order,  or  where  her 
husband  was  civilitcr  mortuus.  Creditors  could  in  a  Court  of  Etjuity  obtain 
a  decree  or  order  entitling  them  to  proceed  against  her  separate  estate,  but 
she  was  not  in  law  their  debtor,  and  could  not  be  sued  as  such  in  an 
ordinary  action  for  payment.  (See  ex  parte  Jones,  in  re  Grissell,  1879, 12  Ch. 
D.  484.)  By  the  Act  of  1882  a  married  woman  engaged  in  trade  separately 
from  her  husband  is,  in  respect  of  her  separate  property,  subject  to  the 
bankruptcy  laws  in  the  same  way  as  if  she  were  a/e?ne  sole  (45  &  46  Vict. 
c.  75,  s.  1  (5);  ex  parte  Coulson,  re  Gardiner,  20  Q.  B.  D.  249).  There  is  na 
express  decision  on  the  subject  in  Scotland ;  but  as  there  are  various  cases 
in  which  a  married  woman  in  this  country  may  validly  contract  obligations 
entitling  the  creditors  to  obtain  decree  for  payment  against  her  as  their 
debtor  (see,  e.g.,  Henderson,  1895,  22  E.  895),  it  seems  to  follow  that,  in 
respect  of-  such  oljligations,  notour  bankruptcy  may  be  constituted,  and 
sequestration  obtained  against  her ;  and  in  practice  this  has  repeatedly 
occurred. 

2.  Conditions  of  Liability  to  Sequestration. — (a)  Living  Debtor. — The 
debtor  nnist  be  "  subject  to  the  jurisdiction  of  the  Supreme  Courts  of  Scot- 
land"; and  the  application  may  be  presented  either  (1)  at  the  instance  of 
the  debtor  himself,  with  the  concurrence  of  a  creditor  or  creditors  qualified 
as  the  Act  requires,  or  (2)  at  the  instance  of  a  creditor  or  creditors  so 
qualified  (see  as  to  qualification,  infra). 

The  jurisdiction  required  by  the  Act  may  exist  in  respect  of  domicile 
proper,  or  of  such  a  right  or  interest  in  heritage  in  Scotland  as  would  found 
jurisdiction  in  an  ordinary  action  (Mackay,  Practice,  53  and  57),  or  of  forty 
days'  residence  in  this  country,  whereby  a  domicile  of  citation  is  acquired 
{Joel,  1859,  21  D.  929).  Arvestment  ad  fundandam  ji'7'isdictioncm  does  not 
seem  a  competent  ground  of  jurisdiction  for  sequestration.  The  question 
was  raised  in  the  case  of  Croil,  1863,  1  M.  509,  where  the  Lord  Ordinary 
(Ld.  Barcaple)  negatived  the  jurisdiction,  but  the  case  was  ultimately 
decided  on  other  grounds.  Jurisdiction  by  arrestment  is  special  in  that 
it  is  only  constituted  in  favour  of  the  arrester  ;  and  is  otherwise  of  so 
anomalous  a  character  that  it  is  not  likely  to  be  now  extended  beyond  what 
is  warranted  by  precedent.  Jurisdiction  ex  rceonrcntionc  is  not  sufficient 
for  sequestration,  being  limited  in  effect  to  rendering  competent  an  actio 
reconventionis,  i.e.  action  based  on  any  such  claim  by  the  Scotch  defender 
against  ihe  foreigner  as  has  a  relation  to  the  foreigner's  claim  and  may  be 


SEQUESTRATION  169 

usefully  tried  along  therewith,  to  the  effect  of  enabling  the  Court  to  do 
justice  bet\yeen  the  parties  (Thomson,  1862,  2-4  D.  831 ;  Allan,  1894,  21  li. 
%Q^,  per  Ld.  Eutherf  urd  Clark  ;  see  Joel,  supra,  per  Ld.  Pres.  Inglis ;  Goetze, 
1874,  2  E.  150). 

Where  the  petition  is  at  the  instance  of  the  debtor,  or  with  his  concur- 
rence, it  is  not  necessary  that  he  should  be  notour  bankrupt  or  insolvent,  lb 
is  only  required  that  there  shall  be  jurisdiction  in  terms  of  the  Act  (see 
supra)  and  the  concurrence  of  duly  qualified  creditors,  i.e.  of  any  one 
creditor  whose  debt  amounts  to  not  less  than  £50,  or  of  two  creditors  whose 
debts  together  amount  to  not  less  than  £70,  or  of  three  or  more  creditors 
whose  debts  together  amount  to  not  less  than  £100,  whether  such  debts  are 
liquid  or  illiquid,  provided  they  are  not  contingent  (13.  A.,  ss.  13,  14). 
The  petition  is  competent  at  any  time  (s.  15) ;  and  on  its  being  presented, 
a  deliverance  awarding  sequestration  is  forthwith  issued  (s.  29). 

Where  the  petition  is  at  the  instance  of  creditors  alone,  the  following  are 
the  requisites  in  the  case  of  debtors  other  than  companies:  (1)  Jurisdiction 
(see  supra);  (2)  that  the  debtor  be  notour  bankrupt;  (3)  that  he  have 
"  within  a  year  before  the  date  of  the  presentation  of  the  petition  resided  or 
had  a  dwelling-house  or  place  of  business  in  Scotland  " ;  (4)  that  the  peti- 
tioning creditor  or  creditors  be  qualified  in  the  same  way  as  above  stated 
regarding  creditors  concurring  in  a  petition  by  the  debtor — the  qualification 
for  petitioning  or  concurring  being  the  same  (ss.  13, 14) ;  (5)  that  the  petition 
be  presented  within  four  months  of  the  date  of  the  debtor's  notour  bank- 
ruptcy (s.  15).  Notour  bankruptcy  may  be  constituted  anew  so  as  to  found 
a  petition  for  sequestration  (s.  9  ;  Balfour,  1841,  3  D.  612  ;  Blair,  1889,  IG 
E.  947,  17  E.  (H.  L.)  76  ;   Wood,  1891,  18  E.  382). 

Where  the  debtor  is  a  company,  the  requisites  for  sequestration  at  the 
instance  of  the  company  itself  are  the  same  as  in  the  case  of  any  other 
living  debtor.  Where  the  petition  is  by  a  creditor  without  the  company's 
concurrence,  the  requisites  are:  (1)  Jurisdiction;  (2)  notour  l)ankruptcy  ; 
(3)  that  the  creditor  be  duly  qualitied  as  above  mentioned ;  (4)  that  either 
the  company  have  within  a  year  liefore  the  date  of  the  presentation  of  the 
petition  carried  on  business  in  Scotland,  and  any  partner  have  resided 
or  had  a  dwelling-house  there,  or  that  the  comp;iny  within  such  period 
have  had  a  jJace  of  business  in  Scotland ;  (5)  that  the  petition  be  pre- 
sented within  four  months  of  notour  bankru[)tcy  (ss.  13,  14, 15). 

Where  the  petition  is  presented  in  a  Sheritl"  Court,  it  is  necessary  that 
tlie  debtor  "  for  the  year  preceding  the  date  of  the  petition  "  have  "  resided 
or  carried  on  business  "  in  the  county  in  question  (s.  18). 

(Jj)  Deceased  Debtor. — The  requisites  for  sequestration  are  :  (1)  that  tlie 
deceased  was  at  his  death  subject  to  the  jurisdiction  of  the  Court;  (2)  that 
the  petition  l^e  presented  either  by  a  mandatory  to  whom  the  deceased  has 
granted  a  mandate  to  apply  for  sequestration,  or  by  a  creditor  or  creditors 
(jualified  as  already  mentioned  (ss.  13,  14;  see  Wryfjhte,  1856,  19  D.  55, 
3  Macf[.  772,  as  to  call  on  shares  emerging  after  date  of  death).  Notour 
bankruptcy  or  insolvency  is  not  essential.  In  case,  however,  of  a 
I)ytition  Ijy  creditors,  althougli  the  petition  may  lie  ])resented  at  any  time 
after  the  debtor's  death,  sequestration  caiUKjt  be  awarded  before  the  expira- 
tion of  six  months  from  the  date  of  death,  unless  the  debtor  was  at  the  time 
of  his  death  notour  bankrupt,  or  unless  his  successors  concur  in  the  ])etition 
or  renounce  the  succession  (s.  15).  "Successors"  are  defined  to  include  "all 
persons  who  have  succeeded  to  any  ]»roj(erty  which  was  vested  in  a  party 
deceased  at  the  time  of  his  death,  whether  as  heirs,  heirs-apparent,  trustees 
under  voluntary  conveyances,  representatives  by  deed  or  otherwise,  executors 


170  SEQUESTEATION 

or  adiuinistrators  or  nearest  of  kin,  or  as  assignees  or  legatees,  and  shall  also 
include  singular  successors  where  they  have  acquired  the  right"  (s.  4). 
Apparently  every  party  entitled  to  take  up  the  hccrcditas  of  the  deceased 
must  concur  (see  Ho})c,  1850,  12  D.  913).  A  petition  by  a  mandatory  is 
competent  at  any  time  (s.  15).  There  is  no  direct  provision  in  the  Act 
that  the  deceased  debtor  must  have  resided,  or  had  a  dwelling-house  or 
place  of  business  in  Scotland  (s.  13).  Sec.  24,  however,  provides  that  a 
petitioning  creditor  shall  in  his  oath  or  in  a  separate  oath  "  specify  the  place 
where  the  debtor  resided  or  had  a  dwelling-house  or  carried  on  business  in 
Scotland  at  the  time  of  his  death,  and  whether  he  was  then  owner  of  estates 
in  Scotland."  As  sec.  13  purports  to  define  the  conditions  of  liability  to 
sequestration,  it  does  not  seem  legitimate  to  control  it  by  sec.  24.  There 
has  been  no  decision  on  the  question. 

While  such  are  the  conditions  of  liability  to  sequestration  under  the 
provisions  of  the  Bankruptcy  Act  considered  by  themselves,  it  must  be  kept 
in  view  that  they  may  be  inoperative  if  there  is  an  existing  bankruptcy  in 
another  country.  Thus  where  a  German  firm  had  been  made  bankrupt  in 
Germany,  the  country  of  the  bankrupts'  domicile,  and  according  to  the  law 
of  that  country  the  bankruptcy  operated  as  a  universal  assignment  of  the 
bankrupts'  moveable  estate  wherever  situated,  it  was  held  that  sequestra- 
tion could  not  be  granted  in  Scotland,  although  there  were  valuable  assets 
belonging  to  the  bankrupts  in  this  country  {Godze,  1874,  2  R.  150).  In 
order  to  have  such  effect  the  foreign  bankruptcy  must  be  in  the  country  of 
the  bankrupt's  domicile  {ih.).  But  for  this  purpose  there  may  be  a  trading 
domicile ;  and  if  there  should  be  more  than  one  trading  domicile,  preference 
will  be  given  to  the  bankruptcy  first  instituted  {Royal  Banlc,  20  Jan.  1813, 
F.  C. ;  see  Ohcrs,  1897,  24  E.  719). 

No  sequestration  can  be  awarded  in  any  Court  after  production  of  evidence 
that  sequestration  has  already  been  awarded  in  another  Court,  and  is  still  un- 
discharged (B.  A.,  s.  18).  A  second  sequestration  in  the  same  Court,  however, 
does  not  seem  to  be  incompetent ;  but  as  sequestration  carries  all  acq_uircnda 
of  the  bankrupt,  a  second  sequestration  will  not  be  effectual  save  as  to  any 
estate  of  the  bankrupt  which  the  creditors  in  the  first  sequestration  have 
abandoned  to  the  bankrupt,  or  are  barred  by  their  actings  from  claiming  an 
exclusive  right  to,  as  where  the  bankrupt  is,  with  their  knowledge  and 
.acquiescence,  allowed  to  carry  on  business  and  contract  new  debt  (see 
Flsken,  1845,  7  D.  842 ;  Mein,  1855,  17  D.  435  ;  Taylor,  1879,  7  E.  128,  per 
Ld.  Pres.  Inglis;  Abel,  1883,  11  E.  149  ;  and  article  on  Abandonment  in 
Bankruptcy). 

(c)  Dchtor  under  Ccssio.— There  is  one  case  in  which  the  conditions  of 
liability  to  sequestration  as  above  defined  do  not  fully  apply.  In  any 
proceedings  under  the  Cessio  Acts  where  the  liabilities  of  the  debtor  exceed 
£200,  the  Sheriff,  if  he  thinks  it  expedient  having  regard  to  the  value  of 
the  estate  and  the  wdiole  circumstances  of  the  case,  has  power  to  award 
sequestration ;  whereupon  the  provisions  of  the  Bankruptcy  Acts  apply  in 
the  same  manner  as  if  sequestration  had  been  awarded  upon  a  petition  for 
sequestration  in  terms  of  sec.  29  of  the  Bankruptcy  Act,  1856  (44  &  45 
Vict.  c.  22,  s.  11). 

3.  Ckeditor's  Qualification  to  Petition  or  Concur.— (1)  Title  to 
Petition  or  Concur. — Questions  as  to  a  creditor's  title  or  capacity  to  petition 
depend  on  the  same  principles  as  regulate  the  instance  of  an  ordinary 
action  (see  Mackay,  Fractiee,  125  et  scq.).  Joint  creditors  must  petition 
jointly  (Bell,  Com.,  5th  ed.,  ii.  320).  But  where  there  were  two  joint  drawers 
of  a  bill  as  individuals,  and  one  indorsed  away  his  interest,  it  was  held 


SEQUESTEATION  171 

correct  for  the  other  drawer  and  the  indorsee  each  to  depone  to  one-half 
of  the  bill  debt  as  due  to  him  {Hair,  1830,  8  S.  07 1).  And  where  two 
cautioners  had  paid  up  the  debt  between  them  and  petitioned  together  for 
the  principal  debtor's  sequestration,  an  oath  by  one  of  them  as  to  his  share 
of  the  claim  was  held  sufficient  to  support  the  petition  {GrccnhiU,  1824, 
2  S.  531).  Where  a  debt  is  due  to  a  firm,  the  petition  must  be  at  the 
instance  of  the  firm.  Where  the  petitioning  creditor  is  a  registered  com- 
pany in  liquidation,  the  petition  should  be  at  the  instance  of  the  company, 
not  of  the  liquidator  alone  (25  &  2G  Vict.  c.  89,  s.  95,  ex  parte  Wintcrlottom, 
18  Q.  B.  I).  446 ;  Maclmy,  58  L.  T.  237 ;  Mtmro,  1896,  3  S._  L.  T.  413). 
Representative  parties,  such  as  executors,  must  of  course  petition  in  their 
representative  character  {Fulton,  9  July  1816,  19  F.  C.  191).  An  agent  to 
whom  a  debt  {e.g.  a  bill)  is  made  payable  expressly  as  agent  for  another  is 
entitled  to  petition  in  his  own  name  {Wixon,  1849,  11  D.  1188;  Brovm, 
1845,  17  Sc.  Jur.  296 ;  see  Bonar,  3  D.  830).  "Whoever  is  vested  with  the 
right  to  the  debt  for  the  time  being,  whether  in  trust  or  not,  is  entitled  to 
swear  that  the  debt  is  due  to  him.  The  proper  person  to  swear  under  the 
statute  is  the  person  entitled  to  sue  for  the  debt "  {Bonar,  mpra,  per  Ld. 
Fullerton).  An  undischarged  bankrupt,  being  divested  of  his  title,  cannot 
competently  petition  or  concur  {M'Nah,  1851,  14  D.  182  ;  Stuart's  Eep.  164 ; 
Campbell,  1853,  15  D.  685,  per  Ld.  Curriehill ;  6^;7/o7i,  1882,  10  E.  at  p.  61). 
Reversal  of  a  sentence  of  outlawry  has  been  held  (under  a  petition  for  recall) 
to  validate  retrospectively  a  creditor's  concurrence  {Black,  1825,  4  S.  124). 
Eeinvestiture  of  a  bankrupt  by  discharge  on  composition  or  under  a  deed  of 
arrangement  would  probably  be  held  to  have  a  similar  effect.  Decree  for 
expenses  in  name  of  an  agent-disburser  is  a  good  title  to  the  client  to  peti- 
tion, unless  the  agent  has  begun  diligence  {M'Crcadics,  1882,  10  E.  108; 
Black,  1825,  4  8.  125,  per  Ld.  Eitmilly). 

(2)  Amount  and  Nature  of  Creditors  Claim. — "Petitions  for  sequestra- 
tion may  be  at  the  instance  or  with  the  concurrence  of  any  one  creditor 
whose  debt  amounts  to  not  less  than  £50,  or  of  any  two  creditors  whose 
debts  together  amount  to  not  less  than  £70,  or  any  three  or  more  creditors 
whose  debts  together  amount  to  not  less  than  £100,  whether  such  debts  are 
liquid  or  illiquid,  provided  they  are  not  contingent"  (B.  A.,  1856,  s.  14). 
Interest  when  due  may  be  accumulated  as  at  the  date  of  the  petition,  and, 
on  the  other  hand,  should  apparently  be  deducted  wliere  the  debt  is  one  not 
falling  due  till  after  that  date  (s.  52).  Exchange  and  re-exchange  and 
expenses,  if  ascertained,  upon  foreign  drafts  or  bills  may  be  included  (see 
Paul,  1834,  12  S.  431,  7  W.  &  S.  462).  A  debt  may  be  founded  on  at  its 
nominal  value,  although  purchased  for  less,  and  it  is  not  a  good  objection 
that  it  has  been  so  purchased  after  the  debtor's  notour  bankruptcy  {Bolh, 
1830,  8  S.  839,  5  W.  &  S.  740).  Partial  payments  made  before  the  petition 
is  presented  must  be  deducted  ;  ])ut  payments  made  tliereafler  will  not  have 
the  effect  of  destroying  the  creditor's  qualification  {Allan,  1840,  3  D.  152; 
and  see  B.  A.,  s,  30).  Li(|uid  counter-claims  instantly  verifiable  must  be 
deducted  (I5ell,  Corn.,  5th  ed.,  ii.  323 ;  see  Knowlcs,  I860,  3  M.  457). 

The  debt  founded  on  may  be  either  liquid,  as,  e.g.,  debt  due  under  bond, 
bill,  or  decree,  or  illi(iuid,  as  debt  due  upon  open  account  or  upon  a  state- 
ment of  intromissions  (see  Knoudrs,  supra  ;  Simpson,  1881,  9  E.  104,  per  Ld. 
Fraser).  A  claim  for  ascertainable  damages  arising  from  breach  of  contract 
seems  a  sufficient  debt  to  found  a  petition  (Bell,  Com.,  5th  ed.,  ii.  319).  A 
claim  ff)r  a  sti])ulatod  penalty  under  a  fontract  must  1)0  accompanied  liy  a 
specilic  estimale  of  the  damage  incurred  hy  hivavh  {Anderson,  'l^-i7,  ^  I). 
1432).     Where  the  debt  is  a  law  agent's  account,  the  debtor  is  entitled  to 


172  SEQUESTRATION 

have  the  account  taxed  before  sequestration  is  awarded  (see  procedure  in 
Weir,  1848,  10  D.  1361).  Where  a  security  is  held  for  the  debt,  it 
must  be  specified  in  the  affidavit;  but  the  Act  does  not  require  that  it 
be  deducted  in  estimating  the  debt  (s.  22;  cf.  ss.  59,  65  ;  Zearmonth,  1845, 
7  D.  1094;  Gordon,  1855,  17  D.  779,  per  Ld.  Mackenzie;  Knowlcs,  1865, 
3  M.  457  ;  cf.  Elder,  1850,  12  D.  994;  Bell,  Com.  ii.  564). 

The  debt  must  not  be  contingent  (see  s.  14,  siqna  ;  Fleming,  1884, 
9  App.  Ca.  966).  Thus  a  current  bill  of  exchange  is  contingent  as  against 
the  drawer  and  indorsers  {Morrison,  1832,  10  S.  259  ;  Gordon,  1851,  13  D. 
1154).  And  the  same  holds  in  the  case  of  a  cautioner  prior  to  default  on 
the  part  of  the  principal  debtor.  An  award  of  expenses,  for  which  decree 
for  interim  execution  has  been  granted  pending  an  appeal  to  the  House  of 
Lords,  is  a  contingent  debt  {Forhcs,  1890,  18  R  182;  see  Stuart,  1891,  19  li. 
223,  as  to  arrears  of  rent  due  by  crofter).  There  is  no  direct  authority  on 
the  question  whether  a  claim  of  damages  for  injury  is  a  contingent  debt  in 
the  sense  of  the  statute  (see  Ersk.  iii.  6.  8 ;  Miller,  1884,  11  R.  731 ;  Goudy, 
130,  131).  Absence  of  vouchers  would  seem  to  preclude  such  a  claim,  from 
being  founded  on. 

A  prescribed  debt  cannot  be  tlie  ground  of  a  petition  for  sequestration 
(Bell,  Com.,  5th  ed.,  ii.  323 ;  see  LockJiart,  1849,  11  D.  1341). 

4.  Petitiox  for  Sequesteation. — (See  forms  appended.) — The  petition 
may,  in  all  cases,  be  presented  to  the  Lord  Ordinary  on  the  Bills  in  the 
Court  of  Session  (B.  A.,  ss.  18,  21).  Alternatively,  it  may,  in  the  case  of  a 
living  debtor,  be  presented  to  the  Sheriff  of  any  county  "  in  which  the 
debtor  for  the  year  preceding  the  date  of  the  petition  has  resided  or  carried 
on  business  "  {ih.,  s.  18);  and  in  the  case  of  a  deceased  debtor,  to  the  Sheriff 
of  the  county  "  in  which  the  debtor  for  the  year  preceding  his  death  had 
resided  or  carried  on  business"  (20  &  21  Vict.  c.  19,  s.  2).  The  residence 
or  carrying  on  of  business  is  apparently  required  to  have  been  continuous 
daring  the  year.  "  Sheriff"  includes  both  the  Sheriff  and  Sheriff-Substitute 
(B.  A.,  s.  4). 

In  the  Court  of  Session  the  process  is  a  Bill  Chamber  one,  and  Bill 
Chamber  procedure  is  observed  so  far  as  applicable  {ih.,  p.  43  ;  see  Kerr,  1845, 
7  D.  809;  Scott,  1848,  10  D.  732;  Goiv,  1862,  1  M.  25 ;  Cooper,  1878,  5  R. 
414 ;  Mackay,  Practice,  14).  In  the  Sheriff  Court  the  Sheriff  Clerk  is  clerk 
to  the  sequestrations  awarded  by  the  Sheriff  (s.  43).  No  sequestration  in 
either  Court  falls  asleep  or  is  liable  to  dismissal,  under  the  15th  section  of 
the  Sherift^  Courts  Act,  1853  (16  &  17  Vict.  c.  80),  in  respect  of  failure  to 
proceed  therein  during  a  period  of  three  consecutive  months  {ih.). 

A  petition  in  the  iiill  Chamber  must  be  signed  by  the  petitioner  or  his 
counsel  or  agent,  and  marked  to  one  of  the  Divisions  (s.  21 ;  see  Goiv,  1862, 
1  M.  25  ;  Cooper,  1878,  5  R.  414).  A  petition  in  the  Sheriff  Court  must  be 
signed  by  the  petitioner  or  his  agent  (s.  21).  In  a  petition  at  the  instance 
of  the  debtor  not  signed  by  liim,  there  must  be  produced  therewith  "  a 
mandate  authorising  the  same  signed  by  him  or,  in  the  case  of  a  company 
[see  s.  4],  signed  by  a  party  entitled  to  act  for  the  company  "  (s.  21). 
There  is  no  statutory  form  of  mandate  (see  Scudamore,  Mor.  8559  ;  Cole, 
Mor.  4820  ;  Bell,  Com.,  5th  ed.,  ii.  349),  and  it  is  commonly  in  these 
terms — 

To  A.  n.  [Place  and  JDate.] 

I,  C.  D.,  hereby  authorise  you  to  ajiply  for  sequestration  of  my  estates  iu  terms  of 
the  Bankruptcy  Statutes.  (Signed)        A.  B. 

A  mandate  by  a  partnership  must  be  signed  by  all  the  partners  save  in 


SEQUESTEATION  I73 

exceptional  circumstances,  as,  e.g.,  where  one  partner  has  fled  the  country  to 
avoid  apprehension  {Buchanan,  1849,  11  1).  510),  or  has  gone  abroad 
leaving  special  authority  to  his  co-partner  to  take  sole  management 
{Maclean,  1824,  3  S.  82).  If  the  debtor  die  before  the  petition  is  presented, 
the  mandatory  must  petition  in  his  own  name  (s.  13,  2nd  (A)) ;  but  if  he 
die  after  the  petition  is  presented  and  prior  to  an  award  of  sequestration, 
the  proceedings  fall  {Orr,  1882,  10  E.  53). 

Where  the  petition  is  presented  in  the  Sheriff  Court,  the  usual  practice 
is  to  frame  it  in  accordance  with  the  form  prescribed  by  the  Sheritl'  Court 
Act,  1876  (39  &  40  Vict.  c.  70,  ss.  3,  6),  for  ordinary  Sheriff  Court  petitions ; 
althoiigh  it  is  doubtful  whether  this  is  imperative  (see  form  appended ; 
Crostcr,  1878,  5  R  936;  Nat.  Bank,  1886,  23  S.  L.  E.  612:  Cuthbertson, 
1887,  14  E.  736,  per  Ld.  Young ;  Lees,  Styles,  91). 

A  second  petition,  either  in  the  same  or  in  a  different  Court,  is  not 
incompetent,  whether  it  is  a  supplementary  one  to  cure  a  defect  in  the 
original  petition  {A.  v.  B.,  1840,  2  1).  1357  ;  Jarvie,  1865,  4  M.  79  ;  Steel, 
1852,  14  I).  348)  or  presented  in  ignorance  of  or  to  supersede  it  {Jarvie, 
siqjra;  Teiment,  1879,  Q  E.  7 SQ ;  Simjjson,  1881,  9  E.  104;  Fletcher,  1883, 
10  E.  835). 

Where  competing  petitions  have  been  presented,  the  question  upon 
which  of  the  petitions  an  award  sliould  be  allowed  is  not  one  of  legal  right. 
"  The  real  question  is,  what,  in  the  interests  of  the  creditors,  is  the  most 
convenient  and  least  expensive  mode  of  procedure  "  {Fletcher,  siqwa,  per 
Ld.  Pres.  Inglis).  This  is  illustrated  by  the  following  cases.  After  a  creditor 
had  brought  a  petition  in  the  Sheriff  Court,  and  obtained  warrant  of  citation 
thereon,  the  debtor  presented  a  petition  and  obtained  an  award  in  the  Bill 
Chamber,  under  which  a  trustee  was  appointed  and  confirmed.  On  a 
petition  for  recall,  the  Court  recalled  the  award  hoc  statu,  and  remitted  the 
petition  to.  be  conjoined  with  that  in  the  Sheriff  Court.  The  object  of 
recalling  in  hoc  statu  only  was  to  meet  the  case  of  the  first  petition  turning 
out  defective,  in  which  case  an  award  might  have  been  granted  anew  on 
the  second  {Jarvie,  1865,  4  M.  79).  In  another  case  recall  was,  in  similar 
circumstances,  refused  on  the  ground  tliat  proceedings  under  the  second 
petition  had  gone  so  far  that  recall  would  have  caused  serious  delay,  in- 
convenience, and  expense,  without  any  ecjuivalent  advantage.  The  trustee 
had  been  confirmed,  two  statutory  meetings  of  creditors  had  been  held,  and 
the  bankrupt  had  twice  undergone  public  examination  {Tennent,  1879,  6  E. 
786 ;  see  Beid,  1895,  3  S.  L.  T.  55).  And  recall  was  refused  on  the  same 
ground  where  tlie  proceedings  under  the  second  petition  Iiad  gone  the 
length  of  a  deed  of  arrangement,  and  no  question  of  preferences  was 
involved  {Flrtchcr,  sujyra).  Where  an  award  had  been  refused  on  a  first 
petition  in  tlie  Bill  Chamber,  and  the  judgment  was  reclaimed  against,  but, 
before  the  reclaiming  note  was  lieard,  another  creditor  obtained  an  award 
on  a  second  petition,  under  which  a  trustee  was  appointed,  and  the 
examination  of  the  bankrupt  took  place  without  any  petition  for  recall 
being  presented  witliin  forty  days,  the  Court  refused  tlie  reclaiming  note 
on  the  ground  that  the  award  had  become  final  {Simpson,  1881,  9  E.  104). 
The  judge  before  whom  a  second  petition  is  brought  has,  however,  no 
discretion  in  awarding  sequestration  if  the  statutory  rc(iuisites  concur 
(}PKLnlay,?j  S.  L.  T.  13;  Joel,  1859,  21  D.  929;  Stuart,  1891,  19  E.  223); 
and  the  comjictition  Ijetween  the  applications  must  be  determined  under 
a  petition  for  recall  {Jarvie,  Tennent,  Simpson,  Fletcher,  supra). 

If  the  earlier  of  two  petitions  is  oljjected  to  as  defective,  it  has  been 
thought  the  Court  miglit  conjoin  the  two,  so  as  to  carry  back  the  date  of 


174  SEQUESTRATION 

sequestration  to  the  first  deliverance  on  the  earlier  petition  (see  Love,  1846, 
8  D.  1016;  Jarvic,  1865,  4  M.  79;  Simjjson,  1881,  9  E.  104).  A  second 
sequestration,  awarded  in  absence  of  evidence  that  a  -pYior  sequestration  in 
another  Court  remains  undischarged,  is  not  co  ipso  invalid,  but  the  Court 
may  put  matters  into  shape,  as  by  recalling  the  sequestration  under  one 
of  the  petitions  in  hoc  statu  {Kcllock,  1875,  3  E.  239). 

If  a  creditor  who  has  presented  or  concurred  in  a  petition  withdraws, 
or  becomes  bankrupt  or  dies,  "  any  other  creditor  "  may  be  sisted  in  his 
place  and  follow  out  the  proceedings  (s.  34;  see  Forsyth,  1883,  10  E.  1061, 
where  there  was  an  interval  of  about  eight  months).  The  Act  does  not 
require  the  sisting  creditor  to  be  qualified  as  for  petitioning  (see  Allan, 
1840,  3  D.  152). 

Productions  with  Petition. — There  must  be  produced ;  (1)  An  oath  or 
affidavit  to  the  verity  of  the  debt  due  to  the  petitioning  or  concurring 
creditor ;  (2)  the  account  and  vouchers  of  the  debt  (s.  21) ;  (3)  written 
evidence  of  the  debtor's  notour  bankruptcy  where  the  debtor  is  not 
petitioner  (ss.  13,  26). 

The  oath  is  one  to  the  verily  of  the  debt  save  in  the  exceptional  cases 
where  an  oath  of  credulity  is  sanctioned  by  the  Act  (ss.  21,  22,  23,  25 ;  see 
form  appended).  The  creditor  must  depone  what  other  persons,  if  any, 
besides  the  bankrupt  are  liable  for  the  debt  or  any  part  of  it,  and  specify 
any  security  held  over  the  estate  of  the  bankrupt  or  other  obligants,  and 
depone  that  he  holds  no  other  obligants  or  securities  than  those  specified ; 
and  where  he  holds  no  other  person  than  the  bankrupt  so  bound,  and  no 
security,  he  must  depone  to  that  effect  (s.  22).  Where  the  debtor  is 
deceased,  a  petitioning  creditor  must  specify  in  his  oath  or  in  a  separate 
one  "  the  place  where  the  debtor  resided  or  had  a  dwelling-house  or  carried 
on  business  in  Scotland  at  the  time  of  his  death,  and  whether  he  was  then 
owner  of  estates  in  Scotland  "  (s.  24).  The  oath  is  in  form  the  same  as  the 
oath  for  voting  or  ranking,  save  that  securities  are  not  deducted  or  valued 
(see  Learmonth,  1845,  7  D.  1094;  Gordon,  1855,  17  D.  779,  per  Ld. 
Mackenzie;  Knowles,  1865,  3  M.  457).  The  oath  is  bad  if  the  creditor 
be  not  actually  sworn  (Blair,  16  E.  325).  It  may  be  taken  prior  to  the 
debtor's  notour  bankruptcy  (Taylor,  1  Sh.  App.  254);  and  the  lapse  of 
a  year  between  the  date  of  the  oath  and  the  petition  for  sequestration  has 
been  held  not  to  invalidate  the  former  (Grccnhill,  1824,  2  S.  531).  A 
statutory  form  of  declaration  in  terms  of  the  Affirmations  (Scotland)  Act, 
1865,  may  be  used  in  lieu  of  an  oath  wdiere  a  creditor  has  a  concientious 
objection  to  be  sworn  (28  Yict.  c.  9,  s.  2  ;  13  &  14  Vict.  c.  21,  s.  4; 
MCuUin,  1850,  12  D.  1123 ;  see  Suttar,  1861,  23  D.  465).  A  defect  in  the 
oath  cannot  be  rectified,  and  involves  dismissal  of  the  petition  (s.  21). 

The  account  and  vouchers  required  for  petitioning  are  such  as  are  primd 
facie  proof  of  the  debt  (Scott,  1847,  9  D.  1347  ;  Knoides,  1865,  3  M.  457 ; 
Bcdlantync,  1867,  5  M.  330) ;  and  must  be  in  conformity  with  the  debt  as 
sworn  to  in  the  oath  (see  Clark,  1884,  11  E.  469).  An  open  account  in 
re  mercatoria  is  a  good  voucher  (Scott,  supra ;  Knoidcs,  supra ;  Ballantyne, 
supra]  Simpson,  1881,  9  E.  104);  but  an  unadjusted  account  between  two 
joint  adventurers  has  been  held  insufficient  (Knoivlcs) ;  as  has  a  cash  account 
taken  from  the  cash  ledgers  of  the  debtors  (Simpson,  supra).  The  absence 
of  a  necessary  stamp  will  invalidate  a  voucher  (Scott,  supra).  The  Act  does 
not  authorise  the  granting  of  a  diligence  to  enable  the  creditor  to  recover 
vouchers  (see  sec.  21 ;  Simpson,  sup)ra) ;  and  it  is  doubtful  whether  the  Court 
can  in  any  case  allow  the  creditor  an  opportunity  of  remedying  a  defect  in 
his  voucher  (Goudy  on  Bankruptcy,  140 ;  see  A.  B.,  2  D.  1357 ;  Boll,  1831, 


SEQUESTEATIOX  175 

5  W.  &  S.  740.     As  to  stamping,  see  Goudv,  nt  siqmi]  31  &  32  Yict. 
c.  100,  s.  41 ;  Bell,  Com.  on  Eccent  Statutes,  p.  138). 

See  more  fully  as  to  Account  and  Vouchers,  infra,  p.  186. 

The  exphy  of  a  charge  Avithout  payment,  or  failure  to  pay  under  a 
decree  which  does  not  need  to  be  followed  by  a  charge,  afford  primd 
facie  evidence  of  notour  bankruptcy  {Macnah,  1889,  16  E.  610 ;  AitJccn, 
1890,  28  S.  L.  E.  115).  A  diligence  to  recover  the  evidence  of  notour 
bankruptcy  will  be  granted  if  required  (B.  A.,  1856,  s.  26 ;  MEostie,  1849 
12  D.  124). 

Evidence  may  be  taken  as  to  any  fact  which  forms  an  essential  element 
in  the  application  and  is  disputed  (B.  A.,  ss.  26,  58 ;  Davis,  1866,  5  M. 
80),  as,  e.g.,  the  fact  of  jurisdiction,  or  residence,  or  the  existence  of  a 
partnership  (M'Gavin,  1854,  16  D.  540).  But  it  is  incompetent  to  deal 
with  such  questions  until  the  debtor  has  been  cited  to  appear  in  terms  of 
the  statute  (Hope,  1893,  21  E.  49). 

5.  A"\VAKD  OF  Sequestration. — (1)  6^71  a  petition  hj  or  with  the  con- 
currence of  the  debtor,  or  hy  his  mandatory,  or  ivith  concurrence  of  his 
successors  if  he  is  dead,  the  judge  must  forthwith  award  sequestration.  The 
deliverance  appoints  a  meeting  for  election  of  the  trustee,  and,  if  in  the 
Bill  Chamber,  remits  the  proceedings  to  such  Sheriff'  Court  as  the  Lord 
Ordinary  deems  expedient  (B.  A.,  ss.  29,  67,  19).  Where  the  estate  is  that 
of  a  deceased  debtor,  the  Court  ordains  any  successor  who  has  made  up  title 
to  or  is  in  possession  of  any  part  of  the  estate  to  convey  it  to  the  trustee 
(s.  29).  "  Successors  "  as  used  in  the  Act  (see  s.  4)  seems  to  include  all 
having  a  direct  interest  in  the  deceased's  succession,  as,  e.g.,  all  the 
beneficiaries  in  the  case  of  a  trust  settlement  not  empowering  the  trustees 
to  ajjply  for  sequestration  (Goudy,  142).  A  petition  by  a"  mandatory  of 
the  deceased  is  thought  to  fall  imder  the  terms  "  with  concurrence  of  the 
dehtov "  (ib. ;  d.  Murdoch  on  Bankruptcy,  22>1,  awdlvmwcox on  Bankrup)tcy , 
45).  The  award  may  be  opposed  by  any  creditor  (Bell,  Com.  ii.  293 ;  see 
Chcyne,  1828,  7  S.  60).  The  Act,  however,  makes  no  provision  for  givino- 
public  intimation  of  petitions  by  debtors. 

(2)  Where  the  petition  is  hy  a  creditor  without  the  consent  of  the  debtor 
or  his  successor,  the  Court  must  forthwith  grant  warrant  to  cite  the  debtor 
or  his  successor  to  appear  and  show  cause  why  sequestration  should  not  bo 
awarded  (s.  26).  It  is  incompetent  to  pronounce  any  prior  interlocutor ; 
and  this  was  held  where  the  Sheriff,  before  granting  warrant  to  cite  the 
debtor,  who  had  appeared  before  him  to  support  a  caveat  denying  jurisdic- 
tion, allowed  a  proof  on  that  point,  and  thereafter  repelled  the  ])lea  (Hope, 
1893,  21  E.  49).  At  the  same  time  the  Court  orders  intimation  of  the 
warrant  and  diet  of  appearance  to  be  made  in  the  Gazette  (s.  28),  and,  if 
required,  grants  diligence  to  recover  evidence  of  notour  bankruptcy  (s.  26). 
The  inducicc  is  not  less  than  six  nor  more  than  fourteen  days,  or,  if  the 
citation  be  edictal,  is  twenty-one  days.  After  due  advertisement  and 
service,  the  petitioner  verbally  or  by  minute  states  that  he  has  made  them, 
produces  the  evidence  thereof  and  of  the  other  requisites,  and  moves  for 
sequestration;  "and  if  the  debtor  or,  if  dead,  his  successor,  do  not  appear 
at  the  diet  of  appearance,  either  in  person  or  l.)y  his  counsel  or  agent,  and 
show  cause  why  the  sequestration  cannot  be  competently  awarded,  or  if  the 
debtor  so  appearing  do  not  instantly  pay  the  debt  or  debts  in  respect  of 
which  ho  was  made  bankrupt,  or  produce  written  evidence  of  the  same  l)eing 
fjaid  or  satislied,  and  also  pay  or  satisfy  or  i)roduce  written  evidence  of  the 
payment  or  satisfaction  of  the  debt  or  debts  due  to  the  petitioner,  or  to  any 
otlier  creditor  appearing  and  concurring  in  the  petition,  the  Lord  Ordinary 


176  SEQUESTEATION 

or  Sheriff,  on  production  of  evidence  of  the  citation  and  of  the  foresaid 
requisites  for  sequestration,  shall  award  sequestration  in  manner  and  to 
the  effect  before  mentioned  "  (B.  A.,  s.  30).  In  an  application  for  seques- 
tration of  the  estate  of  a  deceased  debtor  under  the  Act  of  1839,  it  was 
held  that  upon  consignation  of  the  debt  of  the  applicant  by  a  judicial  factor 
on  the  estate  (who  had  raised  a  reduction  of  the  ground  of  debt)  sequestra- 
tion ought  to  be  refused  (Alexander,  1845,  7  D.  264;  Bogcr,  1850,  12  D. 
985 ;  see  Steel,  1852,  14  D.  348,  as  to  expenses  of  petitioner).  Apart  from 
consignation,  the  term  "  satisfaction  "  has  not  been  construed  by  any  decision. 

If  the  statutory  requisites  are  duly  complied  with,  and  the  debt  in 
respect  of  which  notour  bankruptcy  was  constituted,  and  the  debt  of  the 
petitioner,  etc.,  are  not  paid  or  satisfied  in  terms  of  sec.  30  above  quoted, 
sequestration  must  be  awarded.  The  Court  has  no  discretion  in  the  matter 
(Joel,  1859,  21  D.  929  ;  Stuart,  1891,  19  E.  223  ;  see  also  Beid,  1890,  17  E. 
757).  Under  the  earlier  Sequestration  Acts  the  Courts  had  a  discretionary 
power. 

The  award  of  sequestration  may  be  opposed  by  the  debtor,  or,  if  dead, 
his  successor,  or  by  any  creditor,  the  objections  being  either  stated  orally, 
or,  if  the  Court  so  order,  in  the  form  of  written  answers,  upon  which  a 
record  may  be  made  up.  Proof  2^f'oiit  de  jure  is  not  allowed  save  as  to  any 
relevant  questions  connected  with  the  existence  of  the  statutory  requisites. 
Thus  on  a  })etition  for  sequestration  of  a  partnership  the  existence  of  which 
was  disputed  and  not  supported  by  any  iirimd  facie  evidence,  the  Court 
refused  to  allow  investigation,  and  dismissed  the  petition  (M' Gavin, 
1854,  16  D.  540). 

The  grounds  of  objection  may  be  failure  of  some  statutory  requisite,  such 
as  jurisdiction  or  residence,  or  defect  in  the  petitioner's  oath  or  vouchers  or 
in  the  evidence  of  notour  bankruptcy,  or  it  may  be  that  sequestration 
has  already  been  granted  in  another  Court  in  Scotland,  and  is  still  undis- 
charged (s.  18 ;  as  to  a  second  sequestration  in  the  same  Court,  see 
Fisken,  1845,  7  D.  842 ;  Taylor,  1879,  7  K.  128).  Objections  founded  on 
expediency  cannot  be  entertained.  If  the  debtor  be  really  solvent  notwith- 
standing prima  facie  evidence  of  notour  bankruptcy  produced,  his  remedy 
is  to  make  the  payment  or  satisfaction  under  sec.  30  above  quoted,  which 
will  entitle  him  to  have  the  petition  dismissed.  (As  to  grounds  for  recall 
of  sequestration,  see  infra.) 

If  a  creditor  opposing  a  petition  either  by  the  debtor  or  by  another 
creditor  withdraws,  or  becomes  bankrupt,  or  dies,  any  other  creditor  may 
be  sisted  in  his  stead  (B.  A.,  s.  34). 

(3)  In  the  case  of  a  company,  i.e.  bodies  corporate,  politic,  or  collegiate, 
and  partnerships  (B.  A.,  s.  4),  sequestration  may  be  awarded  "of  the  estates 
of  the  company  and  partners  jointly,  or  of  their  respective  estates  separ- 
ately/' (B.  A.,  s.  27).  It  is  sutficient  citation  of  a  company  "  that  a  copy  of 
the  petition  and  warrant  be  left  at  the  place  where  the  business  of  the 
company  is  or  was  last  carried  on,  provided  a  partner  or  a  clerk  or  a  servant 
of  the  company  be  there,  and  failing  thereof,  at  the  dwelling-house  of  any 
of  the  acting  partners ;  and  if  the  house  of  such  partner  cannot  be  found, 
by  leaving  a  copy  at  the  office  of  Edictal  Citations  "  (s.  27). 

Where  two  firms  consist  of  the  same  partners,  they  fall  to  be  dealt  with 
as  separate  firms  with  separate  estates,  "  provided  that  there  is  a  real  and 
perceptible  distinction  of  trade  and  establishment  between  them,"  and  in 
such  circumstances  each  firm  is  liable  to  sequestration  by  itself  (Bell,  Com. 
ii.  515,  516;  Commercicd  Bank,  1895,  33  S.  L.  II.  161,  per  Ld.  Low, 
Ordinary). 


SEQUESTEATION  177 

(4)  In  the  case  of  a  debtor  under  ccssio  where  the  Sheriff  exercises  liis 
discretionary  power  of  awarding  sequestration  (under  sec.  11  of  44  &  45 
Vict.  c.  22),  the  deliverance  contains  the  same  order  fixing  a  meeting  of 
creditors  for  the  election  of  a  trustee  as  in  the  case  of  a  deliverance  on  a 
petition,  and,  like  the  latter,  it  is  final,  and  can  only  be  considered  under  a 
petition  for  recall.  The  date  of  the  deliverance  itself,  and  not  the  date  of 
the  petition  for  cessio  under  which  it  is  granted,  is  the  date  of  the  seques- 
tration {Galhraith,  1885,  22  S.  L.  E.  602):  The  Court  will  rarely  interfere 
with  the  exercise  of  the  Sheriff's  discretion  in  awarding  sequestration  (see 
Jaffray,  1883,  10  E.  719). 

(5)  Apjjcal. — A  deliverance  awarding  sequestration  is  final  and  not 
subject  to  review  (B.  A.,  s.  31);  but  where  sequestration  is  refused,  the 
deliverance  may  be  appealed  {Marr  &  Sons,  1881,  8  E.  784).  If  pronounced 
by  the  Sheriff,  the  appeal  lies  to  either  Division  of  the  Court  of  Session,  or 
to  the  Lord  Ordinary  on  the  Bills  during  vacation,  and  must  be  taken  within 
eight  days  by  a  note  of  appeal  lodged  with  the  Sheriff  Clerk  (s.  170).  There 
is  no  statutory  form  of  note.  A  deliverance  by  the  Lord  Ordinary  on  the 
Bills  is  brought  under  review  by  reclaiming  note  in  common  form  within 
fourteen  days  (B.  A.,  s.  171). 

11.  Eecall  of  and  Annulling  Sequestration. 

1.  Petition  for  Recall       .         .         .     177    I    3.  Proceedings  other  than  Eecall      .     180 

2.  Grounds  of  Recall        .         .         .     178    | 

1.  I'etition  for  Eecall. — While  the  deliverance  awarding  sequestration 
is  not  subject  to  appeal,  it  is  competent  to  present  a  petition  to  have  it 
recalled  (11  A.,  s.  31).  The  petition  is  presented  to  the  Lord  Ordinary  on 
the  Bills ;  and,  unless  where  presented  by  nine-tenths  in  number  antl  value 
of  the  creditors  ranked,  or  where  the  successors  of  a  deceased  debtor  have 
been  cited  edictally  (see  infra),  it  is  only  competent  within  forty  days  after 
the  date  of  the  deliverance  (ss.  31,  32).  It  may  be  presented  by  "  any  debtor 
whose  estate  has  been  sequestrated  without  his  consent,  or  the  successors 
[see  sec.4]  of  any  deceased  debtor  whose  estate  has  been  sequestrated  without 
their  consent,  unless  on  the  application  of  a  mandatory  authorised  by  the 
deceased  debtor  or  any  creditor"  (s.  31).  A  creditor  petitioning  must 
produce  oatli  and  vouchers  as  in  petitioning  for  sequestration  (see 
Ferryman,  1852,  14  D.  508 ;  Partridge,  1873,  1  E.  253).  If  he  has  actively 
liomologated  the  sequestration,  as  by  lodging  a  claim  and  competing  for  the 
trusteeship,  he  may  be  barred  personali  exceptione,  provided  there  is  no 
radical  defect  in  tlie  proceedings  {Ure,  1857,  19  D.  758;  see  Tenncnt,  1879, 
G  E.  78G).  Where  a  petitioning  creditor  withdraws,  or  becomes  bankrupt, 
or  dies,  any  other  creditor  may  be  sisted  in  liis  place  (B.  A.,  s.  34). 

Where  sequestration  has  been  awarded  of  the  estate  of  a  deceased 
debtor,  and  Ins  successor  has  l)ecn  cited  edictally,  it  is  competent  for  such 
successor,  or  any  person  having  interest,  to  petition  for  recall  at  any 
time  before  the  puljlication  of  the  advertisement  for  payment  of  the  first 
dividend  (s.  31). 

A  petition  for  recall  sets  forth  tlie  grounds  of  recall,  and  is  signed  ])y 
the  petitioner,  or  his  counsel  or  agent  {Scott,  1848,  10  \).  732).  The  parties 
who  petitioned  for  sequestration  or  concurred  therein,  and  the  trustee  if 
appointed  and  confirmed  {Arnold,  1852,  14  D.  980),  must  Ix'  called  as 
respondents.  (See  form  of  i)ctition  in  A])pondix.)  1'he  bankru])t  may 
oppose  the  petition  without  finding  caution  {Hooper,  1850,  12  I).  13U9). 
A  record  may  be  made  up  on  the  petition  and  answers,  and  proof  taken 

8.  K.  — VOL.  XI.  12 


178  SEQUESTIJATION 

(see  Muir,  1850,  12  D.  512  ;  Arnold,  supra).  If  an  opposing  creditor  with- 
draws, or  becomes  bankrupt,  or  dies,  any  other  creditor  may  be  sisted  in 
his  place  (B.  A.,  s.  34). 

The  Lord  Ordinary's  judgment  may  be  reviewed  on  reclaiming  note 
within  fourteen  days  (B.  A.,  s.  171).  While  sec.  21  of  the  Act  of  1856 
makes  it  imperative,  where  a  petition  for  sequestration  originates  in  the 
Bill  Chamber,  to  mark  it  to  one  of  the  Divisions  when  presented,  it  has 
been  held  competent  to  bring  a  reclaiming  note  in  a  petition  for  recall  to 
the  other  Division  than  that  to  which  the  petition  for  sequestration  has 
been  so  appropriated  {Cooper,  1878,  5  K.  414;  cf.  Goio,  1862,  1  M.  25). 

Where  a  petition  for  recall  is  successful,  the  Court  will  not  award  the 
petitioner  the  expenses  of  the  petition,  as  it  is  "  a  proceeding  required  by 
the  statute  whether  the  respondent  appeared  or  not "  (Smith,  1860,  23  D. 
140 ;  Bidden,  1896,  34  S.  L.  E.  43).  But  the  Court  may  award  against  a 
compearing  respondent  expenses  incurred  by  his  unsuccessful  opposi- 
tion (ib.). 

Where  sequestration  is  recalled,  the  interlocutor  must  be  entered  in  the 
Kegister  of  Sequestrations  and  on  the  margin  of  the  Eegister  of  Inhibitions 
(B.  A.,  s.  31). 

"  Pendino-  any  petition  for  recall,  and  until  the  sequestration  be  finally 
recalled,  the  proceedings  in  the  sequestration  shall  go  on  as  if  no  such 
petition  had  been  presented"  (ib.,  s.  33;  see  Crawford,  1821,  1  S.  189; 
Ballantyne,  1867,  5  M.  330,  per  Ld.  Neaves).  Where  all  the  creditors  of 
a  bankrupt  except  two  who  had  petitioned  for  recall,  accepted  a  composi- 
tion, the  Court,  pending  the  petition,  granted  the  bankrupt's  discharge  on 
condition  of  his  finding  "  caution,  in  the  event  of  the  sequestration  being 
recalled,  to  make  good  and  effectual  all  rights  and  interests  of  the  said 
[petitioning]  creditors,  in  the  same  manner  and  to  the  same  extent  as  if  the 
discharge  had  not  been  granted,"  and  in  respect  the  trustee  was  to  remain 
a  party  to  the  petition  for  recall  {Annan,  1848,  10  D.  891).  It  was 
observed  by  Lord  Fullerton  in  this  case  :  "  You  must  read  these  words  '  go 
•on '  as  applicable  even  to  the  conclusion  of  the  sequestration." 

A  petition  for  recall  is  competent  at  any  time  if  presented  by  nine- 
tenths  in  number  and  value  of  the  creditors  ranked  (s.  126)  on  the  estate 
(B.  A.,  s.  32).  The  Lord  Ordinary  orders  notice  of  his  deliverance  to  be 
published  in  the  Gazette,  requiring  all  concerned  to  appear  within  fourteen 
days  from  the  date  of  the  pul)lication  to  show  cause  against  the  recall,  and 
on  expiration  of  said  time  pronounces  judgment. 

2.  Grounds  of  Eecall. — "  Eecall  may  be  competently  applied  for  on 
any  of  the  grounds  which  were  stated  and  repelled  in  opposing  the  award 
of  sequestration  {Elder,  1850,  12  D.  994),  or  on  grounds  which  might  have 
been  effectual  but  were  not  stated  {Camj^hcU,  1853,  15  D.  685),  or  on 
grounds  which  have  emerged  since  the  awarding  of  sequestration  {Muir, 
1850,  12  D.  512;  see  Ure,  1857,  19  D.  758)"  (Goudy  on  Bankruptcy,  151). 

Defects  in  the  statutory  requisites  constitute  good  grounds  for  recall, 
as,  e.g.,  the  insufficiency  of  the  petitioning  creditor's  oath  or  vouchers 
{Morrison,  1832,  10  S.  259;  Campbell,  1853,  15  D.  685;  Ballantyne,  1867, 
5  M.  330 ;  Biddell,  1896,  34  S.  L.  E.  43),  or  the  want  of  due  constitution  of 
notour  bankruptcy  (but  see  Bell,  Com.,  5th  ed.,  ii.  333,  for  view  that  this 
objection  may  be  met  by  production  of  evidence  that  debtor  had  been 
duly  made  notour  bankrupt  by  other  diligence).  Where  there  is  any  ex 
facie  defect  in  the  statutory  proceedings,  the  Court  has  no  discretion,  but 
must  recall  the  sequestration  {Ballantyne,  sup>r a;  Tennent,  1879,  6  E.  786; 
Mitchell,  1888,  16  E.  122;    Blair,  1889,  16  E.  325;    Biddell,  1896,  34 


SEQUESTEATION  179 

S.  L.  E.  43).  And  in  such  a  case  it  is  no  answer  that  the  sequestration  has 
been  acted  on  by  the  petitioning  or  other  creditors  {Camj^hdl,  1853,  15  D. 
685),  nor  that  all  the  other  creditors  wish  it  to  go  on  {ih.).  But  "  where 
there  is  no  nullity  ex  facie  of  the  proceedings,  though  nullity  may  be  made 
out  on  investigation,  the  Court  may  exercise  its  discretion  as  to  recallinf  or 
not  recalling  the  sequestration"  {Ballantijne,  supra,  per  Ld.  Benholme). 
Thus  recall  was  refused  where  the  creditor  petitioning  for  sequestration 
had  omitted  to  specify  an  inhibition  in  his  affidavit,  the  Court  being 
satisfied  that  it  was  valueless  {Mitchell,  1888,  16  E.  122).  Eecall  has  been 
granted  on  the  ground  that  the  sequestration  was  nimious  and  improper 
{Gardner,  1862,  24  D.  1133).  Fraud  on  the  part  of  a  debtor  who  has 
petitioned  for  sequestration,  or  a  creditor  who  has  concurred,  may  con- 
stitute a  ground  for  recall  {Anderson,  1868,  40  Jur.  498;  see  Joel,  1859, 
22  D.  6).  AVhere  the  petitioning  creditor  was  not  put  on  oath  by  the 
magistrate  before  whom  his  affidavit  bore  to  be  sworn,  the  Court,  on  proof 
of  the  fact,  recalled  the  sequestration  {Blair,  1889,  16  E.  325).  But  recall 
was  refused  where  the  ground  was  that  the  concurring  creditor  was  an 
undischarged  bankrupt  {Macnal,  1851,  14  D.  182 ;  but  see  Ca^nj^lcll,  1853, 
15  D.  685,  per  Ld.  Curriehill;  and  Gillo7i,  1882,  10  E.  59,  per  Ld.  Pres. 
Inglis),  and  where  there  had  been  failure  to  insert  Gazette  notices  {Gray, 
1844,  6  D.  569).  It  is  a  relevant  ground  for  recall  that  the  debt  of  the 
creditor  who  petitioned  for  sequestration  is  not  really  due  {Aitken,  1890, 
28  S.  L.  E.  115 ;  Lindsaij,  1896,  4  S.  L.  T.  43  and  141),  or  that  the  debtor 
is  solvent  {Aitken,  supra).  "  The  true  and  only  proper  test  of  solvency  in 
an  application  for  recall "  is  "  whether  the  debtor  at  the  time  of  being  made 
bankrupt  was  in  a  position  to  meet  his  current  obligations  "  {Aitken,  siqjra, 
per  Ld.  M'Laren).  Objections  to  a  sequestration  based  on  mere  inex- 
pediency are  not  good  grounds  for  recall  {Joel,  1859,  21  I).  929,  and  22  D.  6  ; 
Stuart,  1891,  19  E.  223),  as,  e.g.,  the  absence  of  apparent  estate  {Gardner, 
1862,  24  D.  1133),  tlie  expense  of  the  process  compared  with  the  value 
of  the  estate  {Kid,  1830,  8  S.  510). 

Where  the  grounds  of  recall  are  discretionary,  the  Court,  in  exercising 
its  discretion,  will  look  at  the  whole  circumstances  of  the  case.  Thus  it 
was  observed  by  Ld.  Pres.  Inglis  in  the  case  of  Blair  (1889, 16  E.  325) :  "  If 
this  had  been  a  sequestration  the  awarding  of  which  had  had  the  effect 
of  reducing  undue  preferences,  or  of  equalising  diligences,  or  of  creating  a 
right,  or  cutting  down  a  right,  or  of  preferring  one  or  more  creditors,  that 
miglit  have  been  a  reason  for  considering  whether  it  was  necessary  in  the 
circumstances  of  the  case,  with  the  view  of  doing  justice  between  the  parties, 
alxsolutely  to  recall  it."  In  the  same  case  Ld.  Adam  stated  the  question 
thus  :  "  Is  it  or  is  it  not  established,  as  against  tlie  recall  of  the  sequestration, 
that  otlier  creditors  have  acquired  rights  which  would  be  prejudicially 
affected  1  ly  a  recall  ? " 

Eecall  hoc  statu  may  be  granted  where  the  debtor  has  been  twice 
sequestrated,  tlic  second  process  being  thus  sus^jcnded  so  that  it  may  be 
taken  up  sliould  tlie  first  turn  out  defective  {Jarvie,  1865,  4  M.  79 ; 
Kcllock,  1875,  3  E.  239).  But  where  sequestration  was  obtained  by  a 
debtor  in  tlie  Bill  Chamljcr  after  he  had  been  cited  on  a  creditor's  petition 
in  the  Slif;i-iH'  Court,  and  two  statutory  meetings  were  held  and  a  trustee 
aj)i»oint('il  in  the  Bill  Chamber  seciucstiation  (no  award  liaving  been 
o])tained  in  the  Sheriff  Court),  the  Court  refused  to  recall  it,  there  being 
nothing  to  show  that  any  preferences  had  been  obtained  between  tlie  dates 
of  the  two  petitions  {Trvnmt,  1879,  6  11  786 ;  see  also  Fletcher,  1883,  10  E. 
835;  Simi-)son,  1881,  9  E.  104). 


180  SEQUESTEATION 

There  is  one  discretionary  ground  of  recall  specially  provided ,  for  by 
statute.  The  Bankruptcy  Amendment  Act  of  1860  enacts  that  if  it  shall 
appear  to  the  Court  of  Session  or  the  Lord  Ordinary,  upon  a  summary 
petition  by  the  Accountant  or  any  creditor,  or  any  olher  person  having 
interest,  presented  to  either  Division  or  the  Lord  Ordinary  within  three 
months  after  the  date  of  any  sequestration,  that  a  majority  of  the  creditors 
in  number  and  value  reside  in  England  or  in  Ireland,  and  tliat  from  the 
situation  of  the  property  of  the  bankrupt,  or  other  causes,  his  estate  and 
eliects  ought  to  be  distributed  among  the  creditors  under  the  bankrupt  or 
insolvent  laws  of  England  or  Ireland,  the  said  Court  in  either  Division 
thereof,  or  the  Lord  Ordinary,  after  such  inquiry  as  to  them  shall  seem  fit, 
may  recall  the  sequestration  (23  &  24  Vict.  c.  33,  s.  2).  A  judgment  by 
the  Lord  Ordinary  is  subject  to  review  by  reclaiming  note  within  fourteen 
days  (ib.,  s.  4 ;  B.  A.,  ISoG,  s.  171).  The  power  of  recall  under  this  provision 
is  entirely  discretionary  (Smith,  1860,  23  D.  140;  Brandon,  1862,24  D. 
263;  Haines,  1862,  24  D.  383;  Moses,  1866,  4  M.  1050;  Smith,  1869, 
8  M.  100).  In  computing  the  majority  of  creditors,  all  are  included  who 
have  lodged  oaths  and  vouchers  not  open  to  objection,  whether  their  claims 
are  under  £20  or  over  {Haines,  supra).  The  bankrupt  cannot  take 
exception  to  any  parties  being  regarded  as  creditors  whom  he  has  given 
up  in  his  state  of  aflairs  {ib.).  In  Brandon  (1862,  24  D.  263)  recall  was 
granted,  with  expenses,  although  the  sequestration  had  gone  the  length  of 
the  bankrupt  having  got  his  discharge  without  composition,  the  Court 
being  satisfied  that  the  whole  proceedings  had  been  conducted  solely  for 
the  benefit  of  the  bankrupt  and  not  of  the  creditors. 

Decree  of  recall  reinvests  the  bankrupt  in  his  estate.  It  restores 
efficacy  to  any  preferences  by  diligence  or  voluntary  act  of  the  bankrupt 
which  the  subsistence  of  the  sequestration  would  have  rendered  inoperative. 
But  bond  fide  transactions  carried  tlu'ough  during  the  currency  of  the 
sequestration,  such  as  sales,  discharges,  etc.,  hold  good  notwithstanding 
recall  (B.  A.,  s.  33).  Expenses  incurred  in  a  competition  for  the  trustee- 
ship, which  was  interrupted  by  recall  of  the  sequestration,  were  awarded 
and  decerned  for  thereafter  in  the  competition  proceedings  (Crauford, 
1821,  1  S.  189).  Tlie  interrupting  of  prescription  effected  by  lodging  a 
claim  in  a  sequestration  is  not  affected  by  recall  (B.  A.,  s.  109). 

3.    PllOCEEDINGS   TO   TEKMINATE   SEQUESTRATION   OTHER   THAN   EeCALL. — 

In  circumstances  where  procedure  by  way  of  recall  is  inapplicable,  the 
Court  may  ex  nobili  offxio  declare  sequestration  at  an  end.  Tliis  has  been 
done  where  the  bankrupt,  after  sequestration,  entered  into  an  extrajudicial 
arrangement  with  all  his  creditors,  under  which  Ihey  granted  him  a  dis- 
charge (Anelerson,  1866,  4  M.  577);  where  a  creditor  disclaimed  the 
petition  for  sequestration  presented  in  his  name  as  unauthorised  (A.  B., 
1842,  5  D.  74) ;  where  a  petitioning  debtor,  discovering  his  solvency  after 
the  award,  paid  the  concurring  creditor's  debt,  no  proceedings  having  taken 
place  upon  the  award,  and  there  being  no  appearance  to  oppose  (A.  B., 
1835,  13  S.  262).  And  in  a  recent  case,  where  the  trustee  on  the  seques- 
trated estate  of  a  deceased  debtor  had  been  discharged,  all  the  estate 
having  been  divided  except  a  heritable  property  the  value  of  which  the 
bankrupt's  representatives  had  paid  to  the  trustee  in  exchange  for  a 
discharge  of  all  his  claims  thereto,  the  Court,  on  a  petition,  granted  a 
decree  declaring  the  bankrupt's  testamentary  trustees  reinveeted  in  the 
property  {Macleish's  Trs.,  1896,  24  R  151). 

There  are  two  instances  of  an  action  of  reduction  for  annulling  sequestra- 
tion proceedings.      In  the  first  (Gibson,  1894,  21  E.  840)  the  ground  of 


SEQUESTKATIOX  181 

reduction  maintained  was  that  the  award  of  sequestration  was  incompetent 
in  respect  of  the  dependence  of  prior  bankruptcy  proceedings  in  England. 
In  the  second  {Whittlie,  1898,  25  E.  412)  the  debtor  averred  fraud  of  the 
concurring  creditor.  Both  actions  were  dismissed.  The  competency  of 
reducing  a  sequestration  is  therefore  undecided.  It  has  been  suggested 
that  relevant  grounds  for  bringing  a  reduction  of  a  sequestration  where 
procedure  by  recall  is  impossible  might  be  that  the  award  had  been 
obtained  by  forgery  or  gross  fraud  (Goudy  on  Bankruptcy,  155). 

As  to  terminating  sequestration  by  deed  of  arrangement,  see  Deed  of 
Arrangement. 

iii.  esijist.iatiox  and  publication  of  sequestration. 

It  is  the  duty  of  the  party  applying  for  sequestration  to  have  it  duly 
registered  and  published.  He  must  before  the  expiry  of  the  second  lawful 
day  after  the  first  deliverance,  if  by  the  Lord  Ordinary,  present  to  the 
Keeper  of  the  Eegister  of  Inhibitions  at  Edinburgh,  or  present  or  transmit 
by  post  to  him  before  the  expiration  of  the  second  lawful  day  after  said 
deliverance  if  by  the  Slieriff,  an  abbreviate  of  the  petition  and  deliverance, 
signed  by  him  or  his  agent,  in  the  form  of  Schedule  A,  No.  1,  appended 
to  the  Act  (B.  A.,  s.  48).  The  registration  has  from  the  date  of  llie 
deliverance  "the  efl'ect  of  an  inhibition  and  of  a  citation  in  an  adjudication" 
{ih.),  and  it  is  not  competent  to  stop  such  effect,  or  the  ellect  of  the 
sequestration  after  it  is  awarded,  by  paying  the  debt  in  respect  of  which 
it  was  awarded  {ib.).  An  error  in  registration  may  be  rectified  by 
obtaining  authority  to  register  from  the  Court  of  Session  on  a  petition 
at  the  instance  of  the  party  charged  with  the  duty  {A.  B.,  1858,  21  1).  24 ; 
Allan,  1801,  23  D.  972  ;  "il/ormo?;,  1874,  1  E.  392:  Harrison,  1880,  18 
S.  L.  E.  187 ;  Stark,  1886,  23  S.  L.  E.  507) ;  and  when  so  rectified,  the 
sequestration  proceedings  will  stand  good  {Munro,  1851,  13  I).  1209),  save 
that  creditors  will  not  be  prevented,  prior  to  registration,  from  perfecting 
preferences  (see  Goudy  on  Bankruptcy,  157). 

The  party  applying  for  sequestration  has  also  the  duty  of  ]>ublishing 
the  award  when  obtained.  Within  four  days  of  its  date  when  in  the  Bill 
Chamber,  or,  if  by  the  Sheriff',  within  four  days  after  a  copy  of  the 
deliverance  could  be  received  in  course  of  post  in  Edinburgh,  he  nnist 
insert  a  notice,  in  the  form  of  Schedule  B  of  the  Act  of  1856,  in  tlie 
Edinhurgh  Gazette,  and  also  within  six  days  from  said  date  insert  said  notice 
in  the  Louilon  Gaxctte  (s.  4S  ;  see  as  to  mistakes.  Gray,  1844,  6  1).  5G9 ;  Von 
llothcry,  1876,  4  E.  263).  Delay  or  error  in  inserting  the  notice  may  be 
rectified  by  petition  to  the  Court  as  above  mentioned  {Garden,  1848,  10  D. 
1509;  Ross,  1852,  14  I).  546;  Tolmu,  1853,  16  I).  105;  Fouhider,  1869, 
S  M.  31;  Fife,  1844,  6  1).  686;  Von  Bothcry,  sujira;  as  to  expenses  of 
petition,  see  A.  B.,  1858,  21  D.  24).  As  to  the  effect  of  mistakes,  the  rule 
is  that  the  prior  proceedings  remain  unaHected,  while  those  after  the  faulty 
insertion  must  begin  de  novo  (Gray,  1844,  6  I ).  569;  Tolmie,  185."),  16  D. 
105;  cf.  Buhcrtson,  1885,  12  E.  1361). 

The  party  ajqdying  for  se([uostration  inust  furtliei',  wlierc  it  is  awarded 
in  the  Bill  Chamber,  transmit  a  copy  of  the  petition  and  tiist  deliverance, 
and  of  the  deliverance  awarding  sequestration,  certified  by  one  of  the  1)111 
Chamber  clerks,  and  the  productions,  to  the  Sherifl"  Clerk  of  the  cnuiit}'  to 
the  Slieriff  of  which  the  process  has  betui  remitted  (1).  A.,  s.  4.")). 

The  expenses,  as  taxed,  incurred  by  the  ])etitioning  or  concurring 
creditor  in  obtaining  the  sequestration  and  doing  the  other  acts  required 


182  SEQUESTEATION 

by  the  statute  prior  to  the  election  of  the  trustee,  fall  to  Ije  paid  to  him  by 
tlie  trustee  out  of  the  first  of  tlie  funds  which  come  into  his  hands  (B.  A., 
s.  41;  Dalrymplc,  1823,  2  S.  355;  Baillic,  1833,  11  S.  609;  Bell,  1854, 
16  1).  915;  Taylor,  1840,  2  D.  512  and  812).  An  agent-disburser  is 
entitled  to  claim  the  expenses  from  the  trustee  {Cook,  1831,  9  S.  667). 

lY.  Intekim  Pueservatiox  of  Estate. 

By  the  Bankruptcy  Act,  1856,  s.  16,  the  Court  to  which  a  petition  for 
sequestration  is  presented  is  empowered  "  to  take  immediate  measures  for 
the  preservation  of  the  estate,  either  by  the  appointment  of  a  judicial  factor, 
who  shall  find  such  caution  as  may  be  deemed  necessary,  with  the  powers 
necessary  for  such  preservation,  including  the  power  to  recover  debts,  or  by 
such  other  proceedings  as  may  be  requisite,  and  such  interim  appointments 
or  proceedings  shall  be  carried  into  immediate  effect."  Such  measures  may 
be  taken  at  any  time  prior  to  the  confirmation  of  the  trustee  {Partridge, 
1873,  1  E.  253).  The  application  may  be  in  the  petition  for  sequestration, 
or  by  separate  petition  (s.  16).  In  the  latter  case,  if  the  applicant  is 
not  a  petitioning  or  concurring  creditor  he  must  produce  affidavit  and 
vouchers  to  prove  his  title  (Fartridye,  siijpra,  per  Ld.  Cowan) ;  but  it  is  not 
required  that  he  be  qualified  as  for  petitioning  (s.  16).  A  judgment  by 
the  Lord  Ordinary  is  final;  but  one  Ijy  the  Sheriff  is  appealable  (ss.  16, 
170),  whether  it  grants  or  refuses  the  application  (see  Partridge,  siqira). 
The  application  is  not  granted  without  specific  averment  of  danger  to  the 
estate  {M'Crcadics,  1882,  10  E.  108,  per  Ld.  Shaud;  Cnthhertson,  1887, 
14  E.  736). 

An  interim  factor  is  entitled  to  take  all  steps  necessary  for  preserv- 
ing the  estate.  He  may  recover  debts  (s.  16),  open  lockfast  places 
{MLachlan,  1895,  23  E.  126),  demand  delivery  of  goods,  stop  in  transitu, 
require  payment  of  bills  (Bell,  Com.  ii.  300),  and  probably  also  carry  on  a 
going  business  {%b. ;  Goudy  on  Bankruptcy,  163).  But  he  cannot  otherwise 
sell  the  estate,  unless  with  judicial  authority  where  it  is  of  a  perishable 
nature  {Cravford,  1827,  6  S.  127;  Malcolm,  1828,6  S.  1025);  or  interfere 
with  the  diligence  of  creditors  {Urrpihart,  1883,  10  E.  991).  He  is 
entitled  to  his  expenses  and  remuneration  from  the  trustee  out  of  the  first 
of  the  funds  (see  2  &  3  Vict.  c.  41,  s.  53 ;  Anderson,  1845,  7  D.  947),  but 
without  lien  therefor  (see  Bell,  Com.  ii.  301) ;  and  where  sequestration  is 
not  awarded,  can  claim  them  from  the  party  who  obtained  him  appointed 
(Goudy  on  Banlzruptcy,  164).  On  handing  over  the  estate,  he  obtains 
exoneration  and  discharge  from  the  Court,  and  delivery  of  his  bond  of 
caution  {Esson,  1842,  4  ]J.  739). 

It  is  competent  to  the  Sheriff,  on  cause  shown  by  any  creditor,  or  with- 
out any  application,  (1)  at  any  time  before  the  election  of  the  trustee  to 
cause  to  be  sealed  up  and  put  under  safe  custody  the  books  and  papers  of 
the  bankrupt,  and  to  lock  up  his  shop,  warehouse,  or  other  repositories,  and 
to  keep  the  keys  thereof  until  the  trustee  has  been  confirmed  (B.  A.,  s.  17); 
(2)  at  any  time  after  the  presentation  of  a  petition  for  sequestration,  to 
grant  warrant  to  take  possession  of  and  put  under  safe  custody  any  bank 
notes,  money,  bonds,  bills,  cheques  or  drafts,  or  other  moveable  property 
belonging  to  or  in  the  possession  of  the  debtor,  and,  if  necessary  for  that 
purpose,  to  open  lockfast  places,  and  to  search  the  dwelling-house,  shop, 
counting-house,  warehouse,  or  other  premises,  as  well  as  the  person  of  the 
debtor  (43  &  44  Vict.  c.  34,  s.  12;  44  &  45  A'ict.  c.  22,  s.  13).  The 
Sheriff  is  also  empowered,  during  the  dependence  of  appeals  or  petitions  and 


SEQUESTEATION  _183 

complaints,  to  give  such  orders  as  may  be  necessary  to  regulate  the  interim 
possession  and  administration  of  the  estate  (B.  A.,  s.  172),  and  to  take 
similar  measures  where  more  than  one  sequestration  has  been  awarded  (ih., 
s.  20). 

Y.  Claims  for  Voting. 


1. 

Form  of  Oath 

.  183 

5. 

Contingent  Claims 

.  189 

2. 

Rectification  of  Oaths    . 

.  186 

6. 

Annuities 

.  189 

3. 

Account  and  Vouchers  . 

.  18G 

7. 

Assignees 

.  189 

4. 

Secured  Debts 

.  188 

8. 

Mandatories  . 

.  189 

To  entitle  a  creditor  to  vote  or  draw  a  dividend,  he  must  produce  at 
the  meeting  for  election  of  the  trustee,  or  in  the  hands  of  the  trustee 
after  he  is  confirmed,  an  oath  as  to  the  amount  of  his  claim,  and  the  account 
and  vouchers  necessary  to  prove  it  (B.  A.,  s.  49).  The  oath  does  not 
supersede  the  "production  of  legal  evidence,  when  required,  in  any  discussion 
before  the  Court  of  Session,  the  Lord  Ordinary,  the  Sheriff,  or  the  trustee  " 
(B.  A.,  s.  58  ;  see  Bhind,  1846,  9  D.  231).  The  oath,  etc.,  when  produced,^ 
are  initialed  by  the  preses  of  the  said  meeting  or  the  trustee,  as  the  case 
may  be,  and  entered,  with  the  date  of  production,  in  the  sederimt  book  {ib.,. 
8.  50  ;  Woodside,  1847,  9  D.  1486 ;  see  as  to  failure  duly  to  initial  and 
enter,  Stcicart,  1865,  3  M.  1031;  Brandon,  1862,  24  D.  263 ;  and  as  to  loss 
of  claim  in  hands  of  trustees,  Gallovxiy,  1849,  12  D.  394).  The  grounds  of 
debt  are  returned  to  the  creditor  if  required,  and  need  not  be  produced  at 
subsequent  meetings  unless  specially  called  for.  An  assignee  to  a  claun 
may  found  on  it  without  lodging  a  new  one  {WcdJccr,  1835,  13  S.  428). 
The  trustee  makes  no  deliverance  upon  claims  to  vote  ;  but  a  scrutiny  may 
take  place,  and  the  sufficiency  of  claims  for  voting  purposes  be  judicially 
ascertained,  in  course  of  such  proceedings  as  a  competition  for  the  trustee- 
ship, or  an  appeal  against  a  creditors'  resolution.  Where  a  vote  is  objected 
to  at  a  meeting,  it  is  not  necessary  to  state  specific  grounds  of  objection,  a 
general  protest  being  enough,  or  an  appeal  without  any  protest  (see  Miller, 
1858,  20  D.  803).  In  proceedings  under  a  scrutiny,  parole  proof  is  not  in 
the  ordinary  case  admissible  (IJell,  6'o»k,  5th  ed.,  ii.  347;  Bhind,  1846, 
9  1).  231;  Wylle,  1884,  11  Ii.  968),  and  the  party  concerned  must  be  able  to 
instantly  verify  his  objection  or  claim  by  unambiguous  written  evidence 
{MEwan,  1842,  5  D.  273  ;  Bhind,  supra;  Hay,  1850,  12  D.  676),  to  recover 
which  a  diligence  in  specific  terms  may  be  obtained  (Foidds,  1851,  13  D. 
1357;  Trnncnf,  1878,  5  E.  433;  Bcid,  1879,  7  R  235).  Kefcrence  to  the 
oath  of  the  l.iankrupt  or  claimant  is  not  admitted  {Dycc,  1846,  9  D.  310; 
Adam,  1847,  9  D.  560 ;  Anderson,  1847,  9  D.  1460 ;  Beid,  1887,  14  E.  847). 
An  objection  to  a  claim  is  not  barred  by  its  having  been  voted  on  formerly 
witliout  oVjjection  {Henderson,  1849,  11  D.  1470  ;  Lockhart,  1849,  11  I). 
13  U).  A  linal  judgment  against  a  particular  vote  on  a  claim  prevents  it 
being  voted  on  thereafter  (Berry,  1825,  3  S.  336;  afTd.  (II.  L.)  1826, 
2  W.  &  S.  93;  Camjyhcll,  1855, 18  D.  99).  Where  a  creditor's  vote  is  objected 
to,  the  creditor  is  not  de])arred  from  voting  wliile  tlie  objection  is  s^ih  j'udice 
(Bell,  Com.,  5th  ed.,  ii.  318 ;   mUson,  1848,  10  D.  1414). 

The  lodging  of  a  claim  interrupts  prescription,  and  bars  any  statute  of 
limitations  in  any  part  of  Iler  Majesty's  dominions  (B.  A.,  s.  109);  it  also 
crwites  jurisdiction  ex  rcconvcntione  (Ord,  1847,  9  D.  541  ;  Barr,  1879, 
7  E.  247). 

1.  Foit.M  ov  O.VTii. — The  form  of  oatli  is  the  same  for  petitioning, 
voting,  or  ranking,  except  that  (1)  an  oath  for  i)ctitioning  only  specifies 
securities  ami  claims  against  co-obligants,  witliout  valuing  and  deducting 


184  SEQUESTEATION 

them ;  (2)  an  oath  for  voting  also  vah^es  and  deducts  securities  over  the 
bankrupt's  estate,  claims  on  co-obligants,  and  securities  liable  in  relief  to 
the  bankrupt ;  and  (3)  an  oath  for  ranking  deducts  only  securities  over  the 
bankrupt's  estate. 

There  is  no  statutory  form  of  oath.  A  form  of  oath  in  the  terms 
customary  in  practice  will  be  found  in  the  Appendix.  It  is  (save  as  after 
mentioned)  an  oath  "to  the  verity  of  the  debt"  (B.  A.,  s.  22);  and  it  is 
therefore  sufficient  to  aver  that  the  debt  is  due  and  resting  owing  (see 
Gibson,  1825,  4  S.  133  ;  Taijlor,  1848,  10  D.  335 ;  Glen,  1849,  11  D.  387  ; 
Forbes,  1851,  13  D.  1272).  The  oath  must  be  definite  as  to  the  amount  of 
the  debt  (see  Paul,  1834,  12  S.  431,  7  W.  &  S.  462;  cf.  Zizars,  1835, 
13  S.  963).  Marginal  additions  and  erasures  in  csscntialibvs  must  be  duly 
authenticated  {M'Kersy,  1829,  7  S.  556;  Miller,  1848,  10  D.  1419;  White, 
1846,  9  D.  283;  Jardine,  1848,  10  D.  1501;  Murray,  1856,  19  D.  44;  cf. 
Martin,  1897,  5  S.  L.  T.  208— deletion).  As  to  rectification  of  defective 
oaths,  see  infra.  Several  debts  may  be  accumulated  in  one  oath  (see 
Allan,  1840,  3  D.  152;  Smith,  1849,  11  D.  517;  Patten,  1853,  15  D.  617). 

The  creditor  must  in  his  oath  "  state  what  other  persons,  if  any,  are, 
besides  the  bankrupt,  liable  for  the  debt  or  any  part  thereof,  and  specify 
any  security  which  he  holds  over  the  estate  of  the  bankrupt  or  of  other 
obligants,  and  depone  that  he  holds  no  other  obligants  or  securities  than 
those  specified ;  and  where  he  holds  no  other  person  than  the  bankrupt  so 
bound,  and  no  security,  he  shall  depone  to  that  effect"  (B.  A.,  s.  22). 
"  Security  "  includes  "  securities,  heritable  or  moveable,  and  rights  of  lien, 
retention  or  preference  [e.g.  inhibition  or  arrestment — Mitchell,  1888, 
16  E.  122],  and  conveyances  thereof  and  any  part  thereof"  (s.  4). 
As  to  meaning  of  obligant,  see  Forrest,  1848,  11  D.  308.  The  oath  must 
•deal  with  obligants  and  securities  separately.  Thus  an  oath  was  held  bad 
where  the  creditor  omitted  to  state  that  he  held  no  other  person  than  the 
bankrupt  bound,  although  he  deponed  to  holding  no  other  "securities" 
than  those  specified  {Imric,  1842,  4  D.  1532;  Wright,  1842,  5  D.  164). 
But  "holds  no  security  for  the  debt  other  than  A.  and  B."  was  held 
sufficient  {Forbes,  1851, 13  D.  1272).  And  informalities  may  be  disregarded 
if  the  meaning  be  clear,  as,  e.g.,t\\&  omission  of  the  word  "no"  (Taylor, 
1848,  10  D.  335),  or  of  the  pronoun  "  I "  {Hair,  1830,  8  S.  671).  And 
an  oath  was  sustained  which  bore  that  the  debt  was  due  by  a  company 
and  the  partners,  and  that  the  creditor  held  no  other  than  the  company 
liable  (MCubbin,  1850,  12  D.  1153).  Where  the  words  "that  no 
security  is  held  for  the  same"  were  deleted  without  authentication, 
the  deletion  was  held  not  to  be  a  ground  for  recalling  the  sequestration, 
being  proved  not  to  have  existed  at  the  date  of  the  award  {Martin,  1897, 
5  S.  L.  T.  208).  Besides  specifying  securities  and  claims  against 
co-obligants,  the  creditor  must,  for  voting  purposes,  value  and  deduct  these 
(see  as  to  this  infra).  For  ranking,  he  deducts  only  the  value  of  securities 
over  the  bankrupt's  estate  (see  infra,  Ranking  of  Claims). 

A  creditor  is  entitled  to  vote  and  rank  for  the  accumulated  sum  of 
principal  and  interest  to  date  of  the  sequestration,  but  not  for 
interest  after  the  sequestration ;  and  if  the  debt  is  one  due  after 
the  sequestration,  he  must  deduct  interest  from  that  date,  and  any 
discount  applicable  to  it  by  usage  of  trade  (B.  A.,  s.  52 ;  see  Love,  1846, 
8  D.  1016;  Paterson,  1846,  19  Jur.  144;  Craufurd,  15  May  1812,  F.  C. ; 
Duncan,  1879,  6  E.  582).  But  he  is  not  bound  to  specify  separately, 
in  his  oath  or  claim  for  his  debt,  the  amount  of  any  interest  due  thereon,  or 
of  any  interest  or  discount  deducted  therefrom,  or  to  specify  therein  any 


SEQUESTRATIOX  185 

accumulated  sum  of  principal  and  interest  (ib.).  If  there  is  any  residue 
of  the  estate  after  discharging  the  debts  ranked,  he  is  entitled  to  claim 
thereout   the   full   amount   of   the  interest   on   his  debt  in  terms  of  law 

Where  the  deponing  creditor  is  residing  within  the  United  Kingdom, 
he  must  personally  ( Jl'ilkic,  Bell,  Com.,  5th  ed.,  ii.  o42,  note)  take  the  oath 
before  a  Judge  Ordinary,  Magistrate,  or  Justice  of  the  Peace  (B.  A., 
s.  22;  see  Murray,  1821,  1  S.  84,  where  oath  before  baron-bailie  sustained; 
Paterson,  1846,  8  D.  950).  It  is  immaterial  for  what  county  a  justice 
holds  his  commission  {'Taylor,  1  8h.  App.  254;  Turnhull,  1828,  6  S.  G76  ; 
see  Kerr,  1852,  14  I),  864).  AVhere  the  creditor  is  residing  out 
of  the  United  Kingdom,  either  (1)  he  may  personally  take  the  oath  of 
verity  "  before  a  magistrate  or  justice  of  the  peace  or  other  person 
qualified  to  administer  oaths  in  the  country  where  he  resides  (he  being 
certified  to  be  a  magistrate  or  justice  of  tlie  peace,  or  qualified  as  aforesaid, 
by  a  British  minister  or  British  consul,  or  by  a  notary  public)" ;  or  (2)  his 
known  agent  or  mandatory  in  Great  Britain  or  Ireland  may  take  an  "  oath  of 
credulity"  (B.  A.,  s.  23;  see  infra  as  to  Oath  of  Credulity).  The  creditor 
must  be  actually  sworn  by  the  magistrate,  etc.  {Blair,  1889,  16  E.  325), 
who  must  along  with  him  sign  the  oath  (see  M'Cuhbin,  1850,  12  D.  1123; 
Dow,  1875,  2  K.  459),  and  may,  if  the  creditor  be  unable  to  WTite,  sign 
it  for  him  {Paul,  1834,  12  S.  431 ;  Pcrryman,  1852,  14  1).  508). 

A  claim  in  name  of  an  ordinary  firm  or  unincorporated  company  may 
be  sworn  to  by  a  partner  (B.  A.,  s.  25).  A  claim  by  a  corporation 
(including  registered  companies ;  s.  4)  may  be  sworn  to  "  by  the  secretary, 
manager,  cashier,  clerk,  or  other  principal  officer,"  although  not  a  member 
of  the  corporation  {;ih.,  s.  25).  This  category  includes  the  assistant 
manager  of  a  bank  {Dow,  1875,  2  R.  459),  but  not  an  agent  at  a  branch 
{Anderson,  1847,  9  D.  1432 ;  Campbell,  1853,  15  D.  685),  unless  the  debt 
is  constituted  in  liis  name  {Bonar,  1841,  3  D.  830;  and  see  Brown,  1845,17 
Sc.  Jur.  296 — a  blank  indorsation  held  by  agent  of  unincorporated  company). 
An  assignee  must  make  oath  (see  Glen,  1849,  11  D.  387;  Blair,  supra), 
unless  the  assignation  is  after  the  claim  is  lodged  (see  Bell,  Com.,  5th  ed.,  ii. 
341;  Walker,  1835,  13  S.  428;  Chalmers,  1860,  22  D.  1060).  Where  the 
claim  is  for  a  sequestrated  estate,  the  oath  is  by  the  trustee  {Berry,  1825, 
3  S.  336;  add.  2  W.  &  S.  93;  see  MPvellar,  22  June  1805,  F.  C. ;  Taylor, 
1848,  10  D.  335;  Samson,  1851,  13  1).  1395;  and  as  to  case  of  trustee's 
bankruptcy,  see  LccJc,  1855,  17  D.  1075).  One  of  a  body  of  trustees  or 
executors  may  depone  (Bell,  Com.  ii.  304;  see  Watson,  1848,  10  D.  1414), 
and  prior  confirmation  is  not  recjuired  {C/udmcrs,  suj>ra). 

A  factor,  agent,  or  mandatory  cannot,  save  where  the  principal  is 
abroad  or  incapax  (see  infra;  ss.  23,  25),  take  tlie  oath  on  his  behalf 
(Wixon,  1849,  11  D.  1188;  Campbell,  1853,  15  1).  685;  Wilkie,  Bell,  Com., 
5th  ed.,  ii.  342,  note;  see  Flemimj,  1842,  5  \).  305),  indess  the  debt  is 
constituted  in  the  agent's  person,  thus  enabling  him  to  de]K)ne  as  the 
creditor  in  it,  as,  ^.y.,  a  bill  payable  to  A.  B.,  as  agent  for  0.  I ).  {Wilson, 
supra;  Bonar,  1841,  3  D.  8.30). 

Oath  of  Credulity. — Where  a  creditor  is  residing  out  of  the  United 
Kingdom,  his  known  agent  or  mandatory  witliin  the  United  Kingdom  may 
take  an  oath  of  credulity  on  his  behalf  (B.  A.,  s.  23  ;  see  supra) ;  and  when 
a  creditor  is"  utuler  age  [i.e.  pupils;  Miller,  1840,  2  I).  1112],  or  inca])able 
to  make  oatli,"  an  oath  of  credulity  ])y  "  his  authorised  agent,  factor, 
guardian,  or  manager"  is  sullicient.  Incaj)acity  includes  the  case  of  those 
who  are  lunatics   or  under   curatory  or    interdiction,  and  probably  those 


186  SEQUESTEATION 

incapacitated  by  illuess  (see  Bell,  Com.,  5th  ed.,  ii.  342).  The  agent,  etc., 
must  produce  his  mandate  or  authority  to  act  {AitJccn,  1852,  14  D.  572). 
The  only  difference  in  form  between  an  oath  of  verity  and  an  oath  of 
credulity  is  that  in  the  latter  the  deponent  swears  to  the  debt  as  being- 
due  to  his  principal  "  to  the  best  of  the  deponent's  knowledge  and  belief " 
(see  Form  of  Oath  appended).  As  to  the  competency  of  an  oath  of  credulity 
by  a  creditor  unable  to  depone  positively  as  to  his  debt,  see  Paul,  1834,  12 
S.  431 ;  affd.  7  W.  &  S.  462 ;  Gibson,  1825,  4  S.  133  ;  Goudy  on  Bcmkruytcy, 

177). 

2.  Eectification  of  Oaths. — When  an  oath  or  claim,  produced  with  a 
view  to  voting  or  ranking  and  drawing  a  dividend,  is  not  framed  in  the 
manner  required  by  the  Bankruptcy  Act,  the  Sheriff  or  trustee  is  directed 
to  call  on  the  creditor,  his  agent  or  mandatory  to  rectify  the  same,  pointing 
out  wherein  it  is  defective ;  and,  failing  rectification,  to  reject  the  same ; 
but  when  the  defect  appears  to  have  been  made  for  some  improper  or 
fraudulent  purpose,  or  where  injury  can  be  qualified  by  creditors  in  respect 
thereof,  it  is  not  incumljent  on  the  Sheriff  or  trustee  to  allow  rectification 
(B.  A.,  s.  51).  This  does  not  apply  to  an  oath  produced  in  petitioning. 
The  amendment  must  be  on  oath  {Gihson,  1853,  10  D.  233).  It  may  be 
allowed  and  made  at  any  time  before  the  validity  of  the  oath  or  claim 
has  been  finally  determined  by  the  Sheriff  {Latta,  1865,  4  M.  100  ;  Dovj, 
1875,  2  R.  459,  per  Ld.  Pres.  Inglis).  An  interlocutor  allowing  rectifica- 
tion may  be  appealed  {Latta,  supra,  per.  Ld.  Pres.  Inglis). 

Wilful  falsehood  in  an  oath  exposes  the  deponent  to  a  prosecution  for 
perjury  at  common  law  (see  Blair,  1889,  16  E.  325,  per  Ld.  Pres.  Inglis), 
and  also  is  a  ground  for  prosecution  under  sec.  178  of  the  Bankruptcy  Act, 
1856,  and  under  sec.  14  of  the  Debtors  Act,  1880. 

3.  Account  and  Vouchers  of  Claim. — Alonc^  with  the  oath  there  must 
be  produced  the  "account  and  vouchers"  of  the  debt  (B.  A.,  ss.  21,49). 
The  general  rule  is  that  for  purposes  of  voting  these  must  be  "  such  as 
would  be  sufficient  to  entitle  the  party  to  be  ranked  if  his  claim  is  not 
objected  to"  (r«i?'«5u//,  1850,  12  D.  1097).  Where  debts  are  vouched  by 
written  documents,  an  account  is  not  necessary  if  the  debts  are  such  as 
do  not  ordinarily  run  into  account  (see  Kinncar,  1849,  12  D.  66 ;  I'ytler, 
1883,  10  E.  702).  Where  debts  stand  on  open  account,  the  production 
of  the  account  is  enough  if  it  is  an  ordinary  trade  account,  or  such  as  to 
indicate  that  no  separate  vouchers  exist  (Kinnear,  supra;  Forbes,  1851, 
13  I).  1272;  Zaidlaiv,  1844,  6  D.  530;  Wink,  1849,  11  D.  995 ;  Ballantyne, 
1867,  5  M.  330). 

Any  document  specially  vouching  a  claim  must  be  produced,  as,  e.g.,  a 
bond  or  bill,  a  lease  {Mcnzics,  1851, 13  D.  1044,  tacit  relocation),  a  policy  of 
insurance  {Murray,  1856,  19  D.  44),  or,  in  the  case  of  a  claim  for  calls,  the 
minute  of  directors'  meeting  making  the  call,  and  register  of  shareholders 
{Kinnear,  1849,  12  D.  66). 

Where  debts  are  numerous  and  run  into  account,  the  account  must  be 
produced,  and  each  item  vouched  {Laidlaw,  su2:>ra;  Lizars,  1835,  13  S.  963; 
Anderson,  1847,  9  D.  1460 ;  Woodside,  1847,  9  D.  1486 ;  Ballantyne,  1867, 
5  M.  330).  Such  entries  as  "  To  balance,"  "  To  amount  of  account  ren- 
dered," "  To  cash  lent  you,"  have  been  lield  insufficient  without  vouchers 
{Holiday,  1848,  10  D.  1476;  Miller,  1848,  10  D.  1419;  Kinncar,  supra; 
Hay,  1850,  12  D.  676;  see  Elder,  1850,  12  D.  994;  Lou\  1851,  13  D.  1349; 
cf.  Kinnear,  s^qjra;  Paul,  1834,  12  S.  431;  affd.  7  W.  &  S.  462).  It  is 
regarded  as  doubtful  whether  a  cash-credit  bond,  with  certified  statement 
in  terms  thereof,  sufficiently  vouches  a  claim  (see  Murray,  1821,  1  S.  84; 


SEQUESTPtATION  187 

Miller,  supra  ;  Bell,  Com.,  otli  ed.,  ii.  344).  An  account  only  partly  vouched 
will  stand  good  quoad  that  part  {Chalmers,  18G0,  22  D.  lOGO ;  Knoides, 
1865,  3  M.  457). 

An  open  account  extracted  from  business  books  and  duly  certified  is  a 
sufficient  voucher,  provided  the  account  is  a  proper  trade  account  for  goods 
supplied  or  work  done  (Forbes,  1851,  13  D.  1272 ;  Knouics,  1865,  3  M.  457 ; 
Wink,  1849,  11  D.  995;  Lizars,  1835,  13  S.  963;  Samson,  1851,  13  D. 
1395;  Wiseman,  1870,  8  M.  661,  per  Ld.  Pres.  Inglis).  The  account  must 
be  complete.  Such  an  entry  as  "  To  goods,"  or  "  To  goods  per  invoice,"  is 
not  good  without  details  {Hair,  1830,  8  S.  671 ;  Ballantijne,  1867,  5  M.  330  ; 
Bicklcll,  1896,  34  S.  L.  11.  43).  An  entry  ''per  estimate"  must  be  accom- 
panied by  the  estimate  {Wooclside,  1847,  9  D.  1486).  Immaterial  omissions 
or  mistakes  will  not  vitiate  the  account  (?'&. ;  Foulds,  1851,  13  D.  1357; 
Johnston,  1840,  2  D.  1463 ;  Paid,  1834,  12  S.  431).  An  open  accoimt  does 
not  form  a  good  voucher  for  cash  advances  contained  in  it  {Knoides,  supra; 
Wiseman,  siqjra).  A  claim  for  a  balance  due  upon  a  joint  adventure  was 
held  not  vouched  by  an  open  account  {Knouics,  supra). 

A  prescribed  bill  or  account  or  other  voucher  is  not  sufficient,  unless 
the  prescription  is  elided  by  the  production  of  the  bankrupt's  writ  granted 
before  sequestration  {Winh,  1849,  11  D.  995;  Loio,  1851,  13  D.  1349; 
Lockhart,  1849,  11  D.  1341).  An  unstamped  voucher  will  be  accepted  if 
stamped  during  the  judicial  discussion  of  the  claim  {Tcnnent,  1878,  5  R. 
433 ;  Movies,  1843,  6  1).  97 ;  see  Eolh,  1831,  5  ^X.  &  S.  740),  but  not  other- 
wise (see  Scott,  1847,  9  D.  1347).  It  is  a  good  objection  that  the  account 
or  voucher  shows  the  debt  to  be  one  which  the  law  will  not  enforce,  as,  e.g., 
an  account  bad  under  the  Tippling  Act  {Givan,  1837,  16  S.  175).  Erasvn-e 
in  csscnticdibus  will  vitiate  a  document  of  debt  as  a  voucher  {MCuhhin, 

1850,  12  D.  1123;  MEostie,  1850,  12  D.  816).  A  claim  for  a  penalty 
under  a  deed  must  be  accompanied  by  a  statement  of  damage  {Anderson, 
1847,  9  D.  1432).  A  decree  cognitionis  causa  in  absence  against  the  next 
of  kin  of  a  deceased  bankrupt  is  not  a  sufficient  voucher  for  voting  {Turn- 
hull,  1850,  12  D.  1097). 

A  debt  of  which  the  voucher  is  ex  facie  imperfect  will  not  be  set  up  by 
the  bankrupt's  acknowledgment  granted  on  the  eve  of  bankruptcy,  or 
under  circumstances  indicating  collusion  or  arousing  suspicion  {Samson, 

1851,  13  1).  1395,  per  Ld.  J.-Cl.  Hope;  Dgce,  1847,  9  I).  1141). 
Vouchers  may  be  rejected  if  primd  facie  collusive  or  suspicious,  as, 

e.g.,  acknowledii;ments  of  debt  to  near  relatives  on  the  eve  of  bankruptcy 
{Cullcn,  1842,  4  1).  1522;  Anderson,  1852,  14  D.  866;  Tytler,  1883,  10  P. 
099;  Witham.,  1884,  11  Ii.  776;  Gascoync,  1847,  10  D.  231—1.  0.  U.  to  law 
agent;  see  Williamson,  1882,  9  R  859).  In  such  cases  some  corroboration 
of  the  claim  is  required  (see  Cullcn,  siqjra,  per  Ld.  FuUerton ;  Dijce,  1847, 
9  I).  1141,  per  Ld.  Moncreilf;  Tijtlcr,  supra;  Anderson,  supra). 

besides  the  vouchers  constituting  the  debt,  creditors  who  chiim  as 
assignees  or  representatively  must  instruct  their  title  {Murray,  1856, 
19  D.  44;  Anderson,  1847,  9  I).  1460;  Aitken,  1852,  14  1).  572;  Eicing, 
1860,  22  D.  1060). 

An  account  need  not  be  signed  by  the  magistrate  {Tiirnlull,  1828,  6  S. 
076),  but  the  creditor  should  sign  it  where  tliere  is  no  separate  voucher 
(see  JIair,  1830,  8  S.  671  ;  C^dlcn,  1842,  4  D.  1522;  Woodsidc,  1847,  i)  D. 
1486).  If,  liowever,  the  account  is  incorporated  as  an  essential  part  of  tlu> 
oath  by  reference,  as  whci'c  Ihn  vahiation  and  deduction  of  securities  is 
nuide  in  it  instead  (jf  in  the  bddy  of  the  oath,  it  must  be  signed  both  by 
the    magistrate  and   creditors   {M'Cuhbin,  1850,  12  1).  1123).     Vouchers 


188  SEQUESTKATIOX 

produced  along  with  an  account  do  not  need  to  be  signed  (Cullcn,  supra ; 
Kinncar,  1849,  12  D.  66). 

4.  Secured  Debts. — Securities  constituted  over  the  bankrupt's  estate 
at  the  date  of  sequestration  (see  Royal  Bank,  1882,  9  K.  679  ;  University  of 
Glasgoiv,  1882,  9  li.  643)  must  be  valued  and  deducted  in  the  oath  and  the 
balance  specified ;  or,  if  the  security  have  been  sold,  the  creditor  must 
specify  and  deduct  the  net  proceeds  and  specify  the  balance  (B.  A.,  s.  59). 
The  creditor  votes  for  such  balances  only,  "  without  prejudice  to  the 
amount  of  his  debt  in  other  respects  " ;  but  in  questions  as  to  the  disposal 
or  management  of  the  estate  subject  to  his  security,  he  is  entitled  to  vote 
as  a  creditor  for  the  full  amount  of  his  debt  without  any  deduction  {ih.). 
"  Security  "  is  defined  by  sec.  4  of  the  Bankruptcy  Act,  1856.  The  cate- 
gory has  been  held  to  include  an  inliibition  {Mitchell,  1888,  16  E.  122; 
Hay,  1850,  12  1).  676),  an  arrestment  in  security  ( JFoofZsifZe,  1847,  9  D. 
1486 ;  Gibson,  1853,  16  D.  233 ;  Doio,  1875,  2  R.  459),  a  right  of  retention 
over  the  future  proceeds  of  au  insurance  policy  {Borthivick,  1864,  2  M. 
595),  the  riglit  to  payment  of  entailer's  debts  from  an  entailed  estate 
{Smith,  1849,  11  D.  517),  and  also,  apparently,  a  law  agent's  hypothec 
{Elder,  1830,  12  D.  994);  but  not  a  privileged  debt  {Low,  1851,  13  D. 
1349). 

Co-oUiijants  and  Collateral  Securities. — For  voting  purposes  (but  not 
for  ranking)  the  creditor  must  deduct  the  value  of  the  obligation  of  any 
"  obligant  bound  with  Ijut  lial)le  in  relief  to  the  bankrupt,"  or  "  any 
security  from  an  obbgant  liable  in  relief  to  tlie  bankrupt,  or  any  security 
from  which  the  bankrupt  has  a  right  of  relief,"  to  the  extent  to  which  the 
bankrupt  is  entitled  to  relief  (B.  A.,  s.  60.     As  to  right  of  relief,  see  Forrest, 

1848,  11  D.  308;  Wink,  1849,  11  1).  995).  The  existence  of  a  liability  to 
relieve,  where  not  concluded  by  the  terms  of  obligatory  writings  founded 
on  by  the  creditor,  is  determined  on  the  terms  of  the  creditor's  oath  {Dyce, 
1847,  9  D.  993;  Givan,  1837,  16  S.  175),  as  where  he  depones  tliat  a  joint 
granter  with  the  bankrupt  of  a  promissory  note  is  an  accommodation  party. 
The  value  of  a  claim  against  a  partner  is  not  deducted  in  claiming  against 
the  company  estate  (B.  A.,  s.  61 ;  see  MCuhhin,  1850,  12  D.  1123),  but  in 
claiming  against  a  partner's  estate  the  creditor  must  value  and  deduct  his 
claim  against  the  company,  and  also  against  the  other  partners  so  far  as 
liable  in  relief  {ib. ;  see  Burton  on  Bankruptci/,  ii.  473  ;  Nicol,  1827,  5  S.  819  ; 
Cormack,  1832,  11  S.  72;  Bunlop,  Mor.  14610,  and  App.  "Society,"  No.  2). 

Securities  and  claims  a'j;ainst  co-oblio-ants  must  be  valued  though 
believed  to  be  worthless,  the  value  being  put  at  a  nominal  figure,  or  at 
nothing  {3rE wan,  1842,  5  D.  273;  Hai/,  1850,  12  D.  676;  Poynter,  1839, 
1  D.  700;  Gibson,  1853,  16  D.  233;  Aitken,  1848,  10  D.  1269;  see  Dou\ 
1875,  2  R.  459;  Mitchell,  1888,  16  R  122;  M'Kay,  1864,  3  M.  74;  Broivn, 

1849,  11  D.  474).  A  cumulo  valuation  of  several  securities  or  claims  is 
incompetent  in  the  general  case  (aS'?^^^,  1849,  11  D.  517;  for  exceptional 
case,  see  Foidds,  1851,  13  D.  1357). 

A  secured  creditor  is  bound,  at  the  expense  of  the  estate,  to  convey  his 
securities  or  claims  against  co-obligants  to  the  trustee  at  the  valued  amount 
plus  20  per  cent,  thereof  on  being  requisitioned  to  do  so  either  (1)  by  the 
trustee,  with  the  consent  of  the  commissioners,  within  two  months  after 
the  creditor  has  used  his  oath  in  voting  at  any  meeting,  or  assenting  to 
or  dissenting  from  the  bankrupt's  composition  or  discharge  ;  or  (2)  by  the 
majority  in  value  of  tlie  other  creditors  assembled  at  any  meeting  and 
during  such  meeting  (B.  A.,  s.  62;  Russell,  1868,  6  M.  648;  Greig,  1853, 
15  D.  742.    As  to  requisition  in  case  of  ranking,  see  sec.  65  and  infra,  p.  221). 


SEQUESTEATION  189 

At  any  time  before   any   such  requisition   tlie  creditor  may  correct  his 
vahiation  by  a  new  oath,  and  deduct  such  new  vahie  from  his  debt  (s.  G2). 

5.  Contingent  Claims. — As  to  what  is  a  contingent  claim,  reference 
may  be  made  to  the  article  on  Contingent  Debts  in  Bankkuptcy, 
vol.  iii.  A  contingent  creditor  has  two  courses  open  to  him:  (1)  To 
have  his  claim  valued,  and  vote  and  rank  on  the  valued  amount ;  or 
(2)  to  have  a  dividend  set  aside  for  liim  to  await  the  purification  of  the 
contingency  (B.  A.,  ss.  53,  129,  126).  In  the  former  case  the  creditor  applies 
to  the  Sheritf,  if  the  trustee  has  not  been  elected,  or,  if  elected,  to  the 
trustee,  to  put  a  value  on  the  debt  as  at  the  date  of  valuation,  and,  on  such 
value  being  fixed,  he  votes  and  ranks  in  respect  thereof  (B.  A.,  s.  53). 
Until  valuation  he  cannot  vote.  If  the  contingency  is  purified  before 
valuation,  he  may  vote  and  rank  fur  tlie  ascertained  amount  of  the  debt 
(ib.).  For  form  of  petition  to  Sheriff,  see  Appendix.  The  ap]dication  is 
intimated  to  the  bankrupt  and  petitioning  or  concurring  creditor.  The 
decision  of  the  Sheriif  or  trustee  is  appealable  (s.  53);  the  creditor  whose 
claim  has  been  valued  being  entitled  to  vote  pending  a])])eal  (see  Watson, 
1848,  10  L).  14:14).  If  the  creditor  elects  not  to  have  his  claim  valued, 
but  to  await  the  issue  of  the  contingency,  he  has  no  vote  in  the  interval 
(see  sees.  129,  126).  If  he  has  the  claim  valued,  lie  must  a])ide  by  that 
course,  subject  to  his  right,  apparently,  to  have  the  claim  revalued  for 
ranking  (see  Goudy  on  Ikmln-wptcy ,  193). 

6.  Annuities. — A  creditor  for  an  annuity  cannot  vote  or  rank  until  he 
obtains  it  valued  l)y  applying  to  the  Sheriff  or  trustee,  as  in  tl;e  case  of  a 
contingent  claim  (see  sn'pra\  B.  A.,  s.  54).  In  valuing,  regard  is  had  "to 
the  original  price  given  for  the  annuity,  deiluctirig  therefrom  such  diminu- 
tion in  the  value  of  the  annuity  as  shall  have  Iteen  caused  by  the  la]).'e 
of  time  since  the  grant  thereof  to  the  date  of  the  sequestration"  (?'&.). 
Annuities  for  life  are  usually  valued  on  Life  Assurance  Tables.  The 
procedure,  including  right  of  appeal,  is  the  same  as  in  the  case  of  con- 
tingent claims.  A  cautioner  for  an  annuity  is  not  lialjle  for  payments 
after  the  sequestration,  except  to  the  extent  of  such  valued  sum  ;  and  on 
payment  thereof  may  vote  and  rank  ;  but  if  lie  does  not  so  p.ay  before  any 
payment  or  payments  of  annuity  after  the  valuation  l)econie  due,  he  must 
first  pay  up  the  same  with  interest,  deducting  any  dividends  received  l;y 
the  creditor  (B.  A.,  s.  55). 

7.  Assignees  who  a.'quire  debts  hond  fide  after  the  sequestration  are 
entitled  to  claim  for  the  full  amount  thereof,  irrespective  of  the  price  paid 
by  ihcm  {Walker,  1835,  13  S.  428);  subject  to  the  exception  that  if  tl;e 
delfts  are  acquired  otlierwise  than  l)y  succession  or  marriage,  the  assignee 
cannot  vote  in  the  election  of  the  trustee  or  ctmimissioneis  (B.  A.,  s.  64). 
This  exception  docs  not  apply  to  ])uymcnt  by  a  co-obligant  {Hay,  1850, 
12  I).  070),  or  to  a  liill-hohler  who  retires  a  discounted  l»ill  {Lavric,  1848, 
10  I).  1236).  Co-obligants  liound  with  the  bankrujjt  arc  entitled,  on 
paying  the  full  amount  (hie  by  them  (see  Ewart,  1865,  3  M.  (H.  L.)  36),  to 
an  assignation  of  the  debt,  and  In  vote  and  rank,  if  otherwise  legally 
entitled  to  do  so  {ih.,  s.  50).  The  grantor  of  an  accommodation  bill 
which  the  bankru])t  has  pledged  in  security  of  a  debt  of  larger  amount  is 
not  entitled,  on  taking  up  the  bill,  to  claim  in  respect  of  it  unless  the  said 
debt  is  fully  paid  {Black,  1840,  2  D.  706). 

8.  Maniiatoi'JKS. — A  creditor  luay  vote  througli  a  mandatory  (15.  A., 
s.  63).  The  mandatory  may  l)e  one  of  the  commissioners  (s.  75),  but  not 
the  trustee  (see  Witham,  1884,  11  K.  776);  and  he  maybe  appcnnted  to 
vote  at  all  meetings,  or  at  a  particular  meeting  or  meetings.     The  mandate 


190 


SEQUESTEATION 


must  be  in  writing,  Lut  need  not  be  holograph  or  tested  (Scudamorc,  1797, 
Mor.  8559),  nor  stamped  (13.  A.,  s.  184).  There  is  no  prescribed  form  for 
mandates,  which  arc  commonly  in  the  following  terms : — 

[Place  and  Date.'] 
^i-R—l  hereliy  authorise  vou  to  vote  and  act  at  all  meetings  under  tlie  seques- 
tration of  A.  B.  \desvjn\  witli  the  same  powers  as  belong  to  your  obedient  servant. 

(Signed)         C  D. 

To  [insert  name  and  address  of  mandatory]. 

A  partner  has  authority  to  grant  a  mandate  for  his  firm,  and  it  will  be 
good  although  signed  in  his  individual  name  {Turnbull,  1828,  G  S.  676). 

Informalities  in  mandates  are  not  dealt  with  very  critically  in  the 
absence  of  mala  fides.  Thus  in  a  competition  for  a  trusteeship  the  follow- 
ing objections  were  repelled :  (1)  That  a  mandate  had  on  it  an  address 
to°a  candidate  in  the  handwriting  of  the  creditor  which  had  been  scored, 
leaving  another  in  the  handwriting  of  the  candidate  (who  also  wrote  the 
body  of  the  mandate)  in  favour  of  one  of  his  friends.  (2)  That  a  mandate 
was  signed  by  a  company-firm,  while  the  oath  bore  the  debt  to  be  due  to 
the  partners,  without  specifying  the  firm  under  which  they  carried  on 
business  ;  and  that  the  name  of  the  bankrupt  was  blank  in  the  mandate — 
the  allidavit,  mandate,  and  account  sworn  to,  which  was  signed  by  the  com- 
pany-firm, being  all  on  one  sheet  of  paper.  (3)  That  a  mandate  was  signed 
in  the  individual  name  of  the  managing  partner  of  a  company,  while  ^he 
debt  was  sworn  to  by  him  as  due  to  the  company  {Turnhull,  1828,  6  S.  676). 
And  a  mandate  was  sustained  where  the  mandatory  was  wrongly  designed 
"  advocate  "  instead  of  "  writer  "  in  Aberdeen,  there  being  no  question  as  to 
his  identity  {Dycc,  1846,  9  D.  310).  It  has  been  said  that  where  a  mandate 
is  unaddressed,  possession  seems  enough  to  supply  the  omission  (Bell,  Com., 

5th  ed.,  ii.  349).  ^  .       . 

A  mandate  to  vote  and  act  at  all  meetings  empowers  the  mandatory  to 
consent  to  a  composition  (see  Morison,  1849,  11  D.  653),  and  to  concur_  in 
the  bankrupt's  discharge,  although  the  concurrence  is  not  given  at  a  meeting 
(Buchanan,  1882,  9  E."621),  and  to  question  the  bankrupt  at  his  examina- 
tion {Smyth,  1843,  6  D.  331),  and  to  bind  the  principal  to  pay  a  share  of  the 
costs  of  an  action  carried  on  by  the  trustee  {Barclay,  1868,  7  M.  9),  but  not 
to  appeal  against  a  deliverance  by  the  Sheriff  recalling  a  resolution  {Eiviiuj, 
1860,  22  D?  354). 


VI.  First  Meeting — Election  of  Trustee. 


1.  First  Meeting 

2.  Trustee's  Qualification 

3.  Procedure  at  Election 


190 
192 
193 


Caution  by  Trustee 
Objections  to  Election- 
tion  of  Trustee 


-Confirma- 


193 
194 


1.  First  Meeting. — The  election  takes  place  at  the  first  meeting  of 
creditors,  the  day,  hour,  and  place  of  which  is  fixed  in  the  deliverance 
awarding  sequestration,  the  day  being  "  not  earlier  than  six  nor  later  than 
twelve  days  from  the  date  of  the  Gazette  notice  of  the  sequestration  having 
been  awarded"  (B.  A.,  1856,  s.  67)  (six  clear  days  must  elnpse,  Wilson, 
1891,  19  Pi.  219),  and  the  place  being  "  a  convenient  place  within  the  county 
of  the  Sheriff  awarding  sequestration,  or  to  whom  the  sequestration  is 
remitted"  (^&. ;  see  Stuart,  1822,  1  S.  291;  A.  v.  B.,  1847,  10  D.  245). 
Where  the  statutory  requirements  are  not  observed,  the  Court  of  Session,  on 
a  petition  by  the  bankrupt  or  a  creditor  to  either  Division,  will  order  a  new 
meeting  (il/'i)072aW,  1861,  23  D.  719  ;  Mitchell,  l^m,  22  D.  632;   Wilson, 


SEQUESTEATIOK  191 

supra).     The  meeting  may  be  adjourned  to  a  date  \Yitliiii  the  twelve  days 
(B.  A.,  s.  G8). 

The  bankrupt  must  at  this  meeting  produce  and  dehver  to  the  clerk  a 
state  of  his  affairs  and  rental  of  his  heritable  property,  which  must  be 
subscribed  by  the  bankrupt  and  be  delivered  to  the  trustee  (B.  A.,  s.  81). 
The  state  of  aftairs  must  specify  "  his  whole  property  wherever  situated,  the 
property  in  expectancy  or  to  which  he  may  have  an  eventual  right,  the 
names  and  designations  of  his  creditors  and  debtors,  and  the  debts  due  to  or 
by  him  "  (ib. ;  "  property "  does  not  include  a  mere  sjks  snccessionis,  nor 
estate  held  in  trust  on  ex  facie  absolute  title  {HeritaUe  Rcvcrsy.  Co.,  1892, 
19  E.  (H.  L.)  43;  Ficici,  1893,  20  l\.  510).  In  the  case  of  sequestration  of 
a  company  and  partners,  separate  states  must  be  made  up  for  the  company 
and  each  partner.  The  trustee  must  compel  the  bankrupt  to  produce  the 
state  and  rental  {Scobic,  18G9,  8  M.  161 ;  York,  18G1,  23  D.  12-15). 

The  Sheriff,  if  required  by  notice  from  two  or  more  creditors,  must 
attend  and  preside,  the  Sheriff  Clerk  or  his  depute  acting  as  clerk  of  the 
meeting.  The  Sheriff  may  attend  without  notice  {Mann,  1892,  20  11.  13). 
Honorary  Sheriff-Substitutes  may  act  (ib.). 

If  the  Sheriff  does  not  attend,  the  majority  of  the  creditors  in  value 
appoint  a  preses  and  clerk  (B.  A.,  1850,  ss.  68,  101).  The  absence  of  the 
l>reses  during  part  of  the  proceedings  will  invalidate  the  election  {Anderson, 
1827,  6  S.  235). 

The  preses  must  mark  the  oaths  and  productions  w^ith  his  initials  (see 
Twnbull,  1828,  6  S.  676,  omission  to  mark  not  fatal  to  vote ;  and  Stewart, 
1865,  3  M.  1031),  and  he  must  also  sign  the  minutes  (B.  A.,  s.  68;  see 
Mann,  supra).  If  the  Sheriff  is  present,  the  clerk  retains  the  oaths  of  the 
several  claimants,  subject  to  exhibition  thereof,  in  his  hands  until  the 
election  is  determined,  when  he  delivers  them  to  the  trustee  (s.  68).  If  the 
Sheriff  is  not  present,  the  oaths  remain  in  the  hands  of  the  Sheriff  Clerk  if 
he  or  his  depute  be  present,  and,  if  not,  fehey  are  transmitted  by  the  preses 
to  the  Sherilf  Clerk  in  reporting  the  proceedings  to  the  Sherilf,  and  in 
either  case  they  remain  in  the  hands  of  the  Sheriff  Clerk  until  the  trustee 
is  finally  appointed,  when  they  are  handed  by  him  to  the  trustee  (B.  A., 
ss.  6S,  70). 

Tlie  minutes  are  the  only  competent  evidence  of  the  proceedings  (Bell, 
Corn.,  5th  ed.,  ii.  365;  see  Dickson  on  Ecidence,  s.  1216).  The  clerk  must 
write  them  out  in  presence  of  tlie  meeting,  entering  tlierein  "  the  names 
and  designations  of  the  creditors  or  mandatories  and  the  amount  for  wliieh 
they  claim,  and  any  (jtlier  circumstances  relating  to  the  said  meeting  which 
the"'preses  shall  judge  lit "  (B.  A.,  s.  68).  Where  the  minutes  did  not  record 
the  ap]Kjintment  of  a  clerk,  a  new  meeting  was  ordered  {Gascopic,  1848, 
10  D.  376).  The  minutes  should  l)e  signed  in  presence  of  the  creditors  (see 
Broicn,  1869,  7  ^I.  595 ;  cf.  Lea,  1828,  6  S.  350).  Where  the  niinutcs  of  a 
meeting  and  of  an  adjourned  meeting  were  initialed  by  the  presiding  Sheriff 
on  each  j)agc,  and  signed  by  him  at  the  end,  1mi(  there  was  no  signature  at 
the  end  of  the  part  written  prior  to  the  adjournment,  an  objection  to  the 
validity  of  the  election  was  repelled  {Ma^in,  1892,20  U.  13).  Objections  to 
the  regularity  of  the  minutes  fall  to  be  taken  before  the  Sheriff,  supra). 

The  trustee  is  elected  by  "the  creditors  or  their  mandatories  who  have 
produced  their  oaths  and  documents  of  debt,  and  who  have  been  entered  in 
the  minutes"  (B.  A.,  s.  68),  the  majority  in  value  ])revailing  in  case  of 
conipctitiun  (ib.,  s.  101).  A  creditor  is  not  disqualilicd  for  voting  l)y 
being  conjunct  and  conn(lent  with  the  bankrupt  (Bell,  Co?n.,  5th  ed.,  ii.  366), 
nor  by  having  an  adverse  interest  to  the  general  body  of  creditors  {Murray, 


192  SEQUESTRATION 

1821,  1  S.  84;  Campbell,  1825,  4  S.  124),  nor  on  the  ground  that  the  value 
of  his  vote  enables  hhn  to  control  the  election  {Blyth,  1825,  4  S.  155 ;  see 
Paul,  1834,  12  S.  431).  The  bankrupt's  wife  is  ex^iressly  disqualified,  as  is 
any  trustee  for  her  (B.  A.,  s.  64).  And  no  creditor  can  vote  in  respect  of  a 
claim  acquired  after  the  sequestration  otherwise  than  by  succession  or 
marriage  (B.  A.,  s.  64).  This  does  not  apply  to  a  bill-holder  taking  up  after 
sequestration  a  bill  discounted  by  him  {Lawrie,  1848,  10  D.  1236),  nor  to  a 
cautioner  who  pays  after  sequestration  and  ranks  in  lieu  of  the  creditor 

{Hay,  1850,  12  D.  676). 

2.  Qualification  of  Trustee.— The  Bankruptcy  Act,  18o6  (s.  68),  ex- 
cludes from  the  office  (1)  the  bankrupt ;  (2)  any  person  conjunct  or  confident 
with  the  bankrupt  (see  article  Conjunct  ok  Confident  Beeson)  ;  (3)  any 
person  who  holds  an  interest  opposed  to  the  general  interest  of  the  ci  editors ; 
(4)  any  person  whose  residence  is  not  within  the  jurisdiction  of  the  Court 
of  Session.  Instances  of  opposing  interest  are  where  the  candidate  claims  a 
challengeable  preference  (Bell,  Coin.,  5th  ed.,  ii.  371);  where  he  has  a  large 
and  disputed  debt  against  the  bankrupt  ( JFi/feon,  11  March  1815,  F.  C. ; 
Forrest,  1848,  11  D.  308),  or  one  which  is  shown,  by  documents  produced,  to 
be  open  to  suspicion  {RoUson,  1827,  6  S.  104;  Camjjbcll,  1840,  2  D.  1183; 
Bissd,  1841,  3  D.  1283).  It  has  also  been  held  an  objection  that  the 
candidate,  who  had,  under  a  private  arrangement  before  sequestration, 
managed  the  estate,  had  (as  alleged)  acted  improperly,  and  when  appointed 
interim  factor  had  devolved  the  duties  on  the  bankrupt,  and  was  account- 
able to  the  trustee  {Mowlray,  1821,  1  S.  123) ;  that  he  had  been  private 
trustee  for  the  bankrupt,  and  thereafter  trustee  in  his  cessio,  and  was  liable 
in  an  accounting  {M'Farlane,  1848,  10  D.  551);  that  he  was  subject  to  the 
control  of  a  creditor  having  an  adverse  interest  {MTavish,  1824,  3  S.  196  ; 
Corsan,  1827,  6  S.  125 ;  Glarh,  1847,  9  D.  399).  The  son  of  a  deceased 
partner  of  a  firm  which  had  an  adverse  interest  was  held  disqualified 
(Campbell,  1840,  2  D.  1183).  But  it  was  held  not  enough  to  invalidate  an 
election  that  the  trustee  was  the  nominee  of  a  creditor  whose  claim  was 
large  enough  to  control  the  election,  that  the  claim  was  a  suspicious  one, 
and  that  the  trustee  was  procurator-fiscal  and  the  creditor  clerk  of  the 
same  court  (Colville,  1850,  13  D.  415  ;  see  also  Flyth,  1825,  4  S.  155).  The 
fact  that  a  candidate  is  a  creditor  holding  a  security  falling  to  be  valued 
and  deducted,  does  not  seem  necessarily  to  imply  such  an  opposing  interest 
as  to  disqualify  him  (see  Fieid,  1836,  14  S.  809).  The  existence  of  an 
opposing  interest  must,  of  course,  be  proved  by  the  party  alleging  it. 

At  common  law,  a  candidate  may  be  objected  to  as  ineligible  for 
the  office,  as,  e.g.,  on  the  ground  that  he  is  not  major  and  sui  juris 
{Threshie,  30  May  1815,  ¥.  C),  or  that  he  has  expressed  personal 
hostility  to  the  bankrupt  {Lour,  1835,  13  S.  465),  or  that  he  holds  an 
office  tile  duties  of  which  are  incompatible  (not  merely  unsuitable)  with 
the  trusteeship  (Bell,  Covi.,  5th  ed.,  ii.  370  ;  Scott,  1836, 14  S.  552  ;  M'Farlanc, 
1848,  10  D.  551  ;  see  Allan,  1841,  3  D.  646 ;  as  to  case  of  company  and 
partners,  see  Watson,  1822,  1  S.  498  ;  Eobison,  1827,  6  S.  104).  Disapproval 
has  been  expressed  of  clergymen  acting  as  trustees  {Wilso7i,  1828,  6  S.551). 
A  candidate  who  held  a  commission  to  act  as  Sheriff  Clerk  Depute  in  the 
county  of  the  sequestration  was  held  ineligible  {Clark,  1847,  10  D.  117), 
but  a  J.r.  procurator-fiscal  not  {Colville,  1850,  13  D.  415).  Personal  mis- 
conduct may  disqualify,  as  where  the  candidate  had  put  an  elusory  value  on 
a  security  in  his  claim  with  a  view  to  obtaining  the  trusteeship  {A.  B., 
1837,  15  S.  1107);  where  he  had  promised  a  share  of  the  commission  to  a 
creditor  to  secure  his  vote  {M'Goivn,  13  Dec.  1808,  F.  C);  where  he  had 


SEQUESTEATION  193 

promised  a  creditor  employment  (J/«?m,  1857,  19  D.  942);  where  he  had 
promised  to  rank  bills  challenged  as  forgeries  {EoUson,  1827,  6  S.  104) ; 
where  he  had  tried  to  obtain  a  collusive  preference  before  the  sequestration 
(Corsan,  1827,  6  S.  125);  where  he  had  improperly  tampered  with  claims  of 
creditors  whose  mandate  he  held  {Bailton,  1835,  13  S.  107G ;  see  Buchan, 
1863,  1  M.  922).  That  a  candidate  is  an  undischarged  bankrupt  does  not 
necessarily  disqualify  him  (Eichmond,  1850,  12  D.  1017;  see  Macnah,  1851 
14  D.  182 ;  Bell,  Com.,  5th  ed.,  ii.  371;  cf.  Barton,  1831,  9  S.  573). 

The  party  alleging  a  ground  of  disqualification  may  be  allowed  a  proof 
prout  de  jure  if  it  is  denied  {Muncur,  1887,  14  E.  305).  If  a  personal 
objection  is  sustained  which  was  not  stated  at  the  meeting,  a  new  election 
will  be  ordered  {Pattison,  26  Jan.  1811,  F.  C. ;  see  Coirper,  9  D.  909). 

3.  Procedure  at  Election. — Formal  nomination  of  a  candidate  is  not 
required  {Farquharson,  1888,  15  E.  759),  nor  is  protest  by  the  contesting 
creditors  as  to  the  result  of  the  vote,  although  usual  {Miller,  1846,  8  D. 
1207).  Only  one  person  can  be  elected  trustee  on  a  particular  estate;  but 
two  or  more  may  be  elected  to  act  in  succession  in  case  of  non-acceptance, 
death,  resignation,  removal,  or  disqualification  (B.  A.,  s.  68).  Where, 
however,  the  failure  of  the  first  trustee  is  after  his  confirmation,  a  new 
meeting  must  be  held  {ib.,  s.  74;  see  Bell,  Com.,  5th  ed.,  ii.  375;  M'Laggan, 
1851,  13  D.  1394).  In  case  of  sequestration  of  a  company  and  partners, 
one  trustee  may  be  elected  on  all  estates,  or  one  on  each^B.  A.,  s.  68), 
separate  votes  being  taken  in  the  latter  case  by  the  different  bodies  of 
creditors  {Ste-phen,  1863,  1  M.  866;  Cormack,  1832,  US.  72),  unless  all 
the  creditors  have  similar  votes  on  each  estate  {ib.). 

A  new  meeting  for  electing  a  trustee  may  be  ordered  by  the  Lord 
Ordinary  where  a  trustee  is.  removed  under  sec.  74 ;  and  by  the"^  Sheriff,  on 
application  by  a  commissioner  or  a  creditor  entitled  to  be  ranked,  where  a 
trustee  dies,  resigns,  or  is  removed,  or  remains  at  any  one  time  for  three 
months  furth  of  Scotland  (B.  A.,  s.  74).  The  Sheriff  has  no  power  to  order 
a  new  meeting  except  where  authorised  by  statute  {Hutton,  1872,  10  M. 
620).  The  Court  of  Session,  however,  co:  nohili  officio  has  in  various  cases 
ordered  a  new  meeting,  as  where  the  trustee  elected  declines,  or  is  found 
disqualified,  and  no  one  has  been  chosen  in  succession,  and  there  is  no 
competitor  who  can  be  elected  {Jeffrey,  1828,  6  S.  968 ;  Mann,  1857,  19  D. 
942;  Mitehell,  1860,  22  D.  632;  Wiseman,  1870,  8  M.  661);  or  where  the 
trustee  is  removed  by  the  Court  on  report  by  the  Accountant  {Davie,  1884, 
11  E.  1013);  or  where  the  statutory  requirements  fail,  as  by  unavoidable 
delay  in  transmission  of  the  certified  copy  petition  and  deliverance 
(M'Uonald,  1861,  23  D.  719);  or  where  the  creditors  make  no  election  at 
the  first  meeting  {Steuart,  1864,  2  i\I.  1216);  or  where,  upon  tlie  emergence 
of  estate  after  the  trustee's  discharge,  it  is  desired  to  revive  the  sequestra- 
tion {Thomson,  1863,  2  M.  325;  Bussrll,  1867,  5  ]\r.  282;  Gentles,  1870, 
9  M.  176;  Hvtton,  1872,  10  M.  620;  Assets  Co.,  1880,  23  S.  L.  E.  276; 
North  Herit.  6'o.,  1888,  16  E.  100,  and  18  E.  (PI.  L.)  37;  Younq,  1888, 
16  Ii.  92;  Black,  1891,  28  S.  L.  E.  288;  Drijhrough,  1893,  20  E.  396). 
AVhcrc  a  separate  a])i)lication  is  necessary,  the  procedure  is  by  petition  to 
either  Division,  the  Court  usually  remitting  to  the  Lord  Ordinary  or  the 
Sheriff  to  fix  the  time  and  place  of  meeting,  and  granting  warrant  for 
transniissifiii  of  the  sederunt  book  if  necessary  (see  cases  cited ;  as  to 
procedure^  in  case  of  new  meeting,  see  Goudy  on  Ba7ikru2ytcy,  227,  and  V>.  A., 
8.  74). 

4.  Caution  i$v  Tku.stke.— Sec.  72  of  the  Bankruptcy  Act,  1856,  provides  : 
"The  creditors  shall  at  the  meeting  for  election  of  a  trustee  fix  a  sum  for 

8.  E.  — VOL.  XI.  1.3 


194  SEQUESTEATIOX 

which  the  trustee  shall  find  security  for  his  iutromissions  and  perform- 
ance of  the  duties  and  rules  hereby  enacted,  and  shall  also  decide  on  the 
sufficiency  of  the  caution  offered ;  and  the  person  declared  to  be  trustee 
shall  forthwith  lodge  with  the  Sheriff  Clerk  a  bond  of  caution,  signed  by  the 
trustee  and  his  cautioner,  in  the  form  of  the  Schedule  (C)  hereunto  annexed, 
which  bond  shall  be  furnished  to  him  by  the  Sheriff  Clerk :  Provided  that 
nothing  hereinbefore  contained  shall  be  held  or  construed  to  prevent  the 
creditors  accepting  the  bond  of  a  guarantee  society  in  lieu  of  the  bond  of 
caution  aforesaid."  The  cautioner  must  not  be  resident  out  of  Scotland 
(Bell,  Com.,  5th  ed.,  ii.  366  ;  see  Bell,  1842,  5  D.  318,  per  Ld.  Mackenzie). 
The  caution  cannot  be  dispensed  with  {A.  B.,  1833,  US.  412);  and  the 
sum  fixed  must  not  be  elusory  (Bell,  Com.,  5th  ed.,ii.  372).  Where  there  is 
a  competition,  each  candidate  should  offer  caution ;  so  that  in  the  event  of 
the  election  not  being  confirmed,  the  competing  candidate,  if  eligible,  may 
be  confirmed  without  a  new  election ;  and  the  same  holds  with  regard  to 
trustees  elected  in  succession  {MacKcrsy,  1841,  3  D.  1214;  Miller,  IMQ, 
8  D.  1207;  M'Farlane,  1848,  10  D.  551;  Wiseman,  1^1  Q,^  M.  661;  see 
Ranhinc,  9  M.  1053).  A  cautioner  is  not  released  by  negligence  on  the 
part  of  the  commissioners  or  creditors  in  supervising  the  trustee's  proceed- 
ings {MTagrjart,  1  S.  &  M'L.  553  (p.  592);  Creighton,  1838,  16  S.  447;  affd. 
1  Eobinson  App.  Ca.  131 ;  Biejgars,  1846,  9  D.  78). 

5.  Objections  to  Election — Confirmation  of  Trustee. — If  the  Sheriff 
be  present  at  the  election,  and  there  be  no  competition  or  objection  stated 
to  the  candidates,  he  must,  by  a  deliverance  on  the  minutes,  declare  the 
person  chosen  to  be  trustee  (B.  A.,  1856,  s.  69).  If  there  be  competition  or 
objections  to  the  candidate  or  candidates,  such  objections  to  the  votes  or 
candidates  must  be  stated  at  the  meeting,  and  the  Sheriff  may  either  forth- 
with decide  thereon  or  make  avizandum ;  and,  if  necessary,  he  makes  a 
short  note  of  the  objections  and  answers,  on  which  he  must  within  four 
days  after  the  meeting  hear  parties  viva  voce,  and  declare  the  person  or 
persons  trustee  or  trustees  in  succession  whom  he  finds  to  be  duly  elected 
{ih.). 

Where  the  Sheriff  is  not  present  at  the  meetmg,  the  preses  reports  the 
proceedings  to  him,  and  in  the  absence  of  competition  or  objection  he 
declares  the  person  chosen  trustee  {ih.,  s.  70),  If  there  is  competition  or 
objection,  the  parties  must  within  four  days  from  the  date  of  the  meeting 
lodge  with  the  Sheriff  Clerk  short  notes  of  objections,  and  the  Sheriff  must 
forthwith  hear  parties  thereon  viva  voce,  and  give  his  decision  {il.). 

The  objections  may  be  to  the  validity  of  votes  given,  or  on  the  ground 
of  disqualification  of  the  trustee,  or  irregularity  in  the  proceedings.  The 
note  of  objections  may  be  informal,  and  need  not  be  signed  by  a  law  agent 
{Miller,  1858,  20  D.  803).  (See  form  appended.)  The  objections  must  be 
specific  {Lockhart,  1849,  11  D.  1341 ;  Fonlds,  1851,  13  D.  1357).  Grounds 
of  objection  to  a  vote  may  be  stated  although  not  stated  at  the  meeting 
{Byce,  1846,  9  D.  310).  The  Sheriff  is  not  confined  to  the  objections  stated 
to  any  particular  vote,  but  he  cannot  disallow  votes  not  objected  to 
{Farciunarson,  1888,  15  E.  759 ;  Smith,  1892,  19  E.  428).  New  grounds  of 
objection  may  competently  be  stated  on  an  appeal  of  the  Sheriff's  judgment 
{Byce,  1847,  9  D.  993).  Where  during  competition  a  vote  was  withdrawn 
which  was  the  sole  support  of  a  candidate  and  gave  him  a  majority,  the 
Court  ordered  a  new  election  {Bawrie,  1848,  10  D.  1236). 

The  Sheriff  is  directed  to  give  his  decision  with  the  least  possible  delay, 
but  may  make  avizandum,  and  he  may  grant  diligence  to  recover  documents 
for  instantly  verifying  objections  {Bliind,  1846,  9  D.  231  ;   JVylie,  1884, 


SEQUESTEATION  195 

11  E.  9G8 ;  Ecid,  1887,  14  E.  847).  Proof  at  large  is  incompeteut  ( IF?// ic, 
Ecicl,  supra). 

No  part  of  the  expenses  of  any  competition  for  the  office  of  trustee  can 
be  paid  out  of  the  estate,  but  they  are  payable  by  the  unsuccessful  to  the 
successful  party  (20  &  21  Vict.  c.  19,  s.  4).  They  may  be  modified  by  the 
Court  {Dijce,  1847,  9  D.  1161;  Mcnzies,  1851,  13  D.  1044),  and,  if  the 
election  be  held  void,  none  will  be  awarded  {MacKcrsij,  1841,  3  D.  1213  ; 
Miller,  1846,  8  D.  1207;  M'Farlanc,  1848,  10  D.  551;  Laivric,  1848, 
10  D.  1236). 

The  Sheriff's  judc^ment  declaring  an  election  is  final  (B.  A.,  1856,  s.  71 ; 
Bucliaii,  1863,  1  M.  1)22 ;  Banklne,  1871,  9  M.  1053 ;  Broicn,  1869,  7  M. 
595 ;  Foulis,  1871,  10  M.  20).  But  a  decision  that  there  has  been  no  valid 
election  may  be  appealed  {Manv,  1857,  19  D.  942  ;  Miller,  1858,  20  D.  803 ; 
Wiseman,  1870,  8  M.  661,  per  Ld.  Pres.  Inglis),  as  may  also  interlocutory 
deliverances  prior  to  judgment  {Wylie,  1884,  HE.  820;  Moncur,  1887, 
14  E.  305,  and  cases  there  cited),  and  any  judgment  which  is  ultra  vires 
(see  Buclian,  siqn^a ;  BanJcine,  supra ;  Wylie,  supra ;  Monc2tr,  supira ; 
Farquharson,  1888,  15  E.  759 ;  Eeid,  1887,  14  E.  847).  The  appeal  lies  to 
either  Division  of  the  Court  of  Session,  or  the  Lord  Ordinary  on  the  Bills 
during  vacation,  and  must  be  taken  within  eight  days  (B.  A.,  1856,  s.  170). 

Confirmation  of  Trustee. — On  the  trustee  who  is  declared  to  be  elected 
lodging  his  bond  of  caution,  the  Sheriff  confirms  the  election,  and  the  act 
and  warrant  in  favour  of  the  trustee  is  issued  by  the  Sheriff  Clerk.  A  copy 
must  forthwith  be  transmitted  by  the  trustee  to  the  Accountant  of  Court 
(B.  A.,  1856,  s.  73),  and  an  abbreviate  must  be  recorded  in  the  Eegister  of 
Abbreviates  of  Adjudications  within  twenty-one  days  {ih.,  s.  79).  If  the 
abbreviate  is  not  duly  recorded,  warrant  to  record  may  be  obtained  from 
the  Court  of  Session  on  petition  to  eitlicr  Division  (see  Munro,  1851,  13  D. 
1209 ;  A.  B.,  1855,  18  D.  286  ;  3Iartin,  1857,  20  D.  55).  The  act  and 
warrant  forms  conclusive  evidence  of  the  trustee's  title  (B.  A.,  1856,  s.  73  ; 
see  infra.  Vesting  of  Esteite  in  Trustee).  The  confirmation  is  not  subject  to 
review  {ih.).  As  to  procedure  subsequent  to  confirmation,  see  infra. 
Examination  of  Banlcrupt. 

YII.  The  Commissioners. 

The  commissioners  are  an  elective  committee  of  the  creditors,  three  in 
number  (if  there  be  so  many  creditors),  who  act  gratuitously,  and  whose 
function  is  to  advise  with  and  form  a  check  upon  llic  trustee  in  his  manage- 
ment of  the  estate.  They  are  elected  by  the  creditors  at  the  first  meeting, 
after  tlie  election  of  tlie  trustee,  the  Sherilf  declaring  their  election  by  a 
deliverance  in  the  sederunt  Ijook,  which  is  final  and  requires  no  confirma- 
tion (B.  A.,  1856,  s.  75).  The  proceedings  in  their  election  are  the  same  as 
in  the  election  of  the  trustee,  except  that  they  do  not  find  cautio.n  {ih.).  A 
majority  forms  a  quorum  {ih.).  Xo  person  is  eligible  for  the  olUce  who  is 
disqualified  to  be  trustee  {ih.;  see  Ihircan,  1832,  10  S.  352;  Learmonth, 
1858,  20  D.  564;  Bell,  Com.,  5tli  ed.,  ii.  385).  Mandatories  for  creditors 
may  be  elected. 

A  commissioner  may  resign  at  any  time,  lie  may  be  removed  :  (1)  If  a 
mandatory,  by  written  intimation  to  the  trustee  tliat  his  mandate  is  recalled 
(B.  A.,  1856,  8.  75),  (2)  liy  a  majority  (in  value)  of  creditors  at  a  meeting 
called  for  the  purpose,  who  then  elect  another  cfmimissioncr  in  his  place 
(B.  A.,  1856,  ss.  76,  101  ;  see  Thomson,  1859,  21  D.  1129).  (:;)  He  may  be 
removed  or  censured  by  the  Court  of  Session  on  a  report  by  the  Accountant 


196  SEQUESTEATION 


of  Court  that  the  duties  of  his  office  are  not  being  faithfully  performed 
(B.  A.,  1856,  s.  159 ;  see  Boaz,  4  S.  403).  Where  a  commissioner  declines, 
or  resigns,  or  becomes  incapacitated,  the  trustee  must  call  a  meeting  for 
electing  a  new  one,  the  other  commissioners  acting  in  the  meantime  (B.  A,, 
1856,  s.  75;  see  Gunn,  1850,  13  D.  317;  Caclell,  8  July  1819,  Bell,  Com., 
5th  ed.,  ii.  386,  note;  Alexander  on  Bankruptcy,  134). 

Tlie  commissioners  "  superintend  the  proceedings  of  the  trustee,  concur 
with  him  in  submissions  and  transactions,  give  their  advice  and  assistance 
relative  to  the  management  of  the  estate,  decide  as  to  paying  or  postponing 
payment  of  a  dividend,  and  may  assemble  at  any  time  to  ascertain  the 
situation  of  the  bankrupt  estate,  and  any  one  of  them  may  make  such 
report  as  he  may  think  proper  to  a  general  meeting  of  creditors  "  (B.  A., 
1856,  s.  85).  Their  discretion  is  not  readily  interfered  with  (see  Wighton, 
1865,  4  M.  261;  Weldon,  1879,  7  E.  235).  They  have  right  of  access  to 
the  sederunt  book,  and  accounts  and  other  documents,  even  though  confiden- 
tial (B.  A.,  1856,  s.  84).  A  commissioner  may  at  any  time  call  a  meeting  of 
creditors,  giving  notice  to  the  trustee  prior  to  doing  so  {ib.,  s.  98  ;  M'Fadyean, 
1884,  21  S.  L.  E.  479 ;  Lang's  Tr.,  1892,  19  E.  488). 

The  commissioners  examine  and  audit  the  trustee's  accounts  (B.  A.,  1856, 
ss.  125,  130,  132;  see  Russell,  1869,  8  M.  219;  MTaggart,  1834,  12  S. 
332;  rev.  1  S.  &  M'L.  553;  Gibson,  1836,  15  S.  143),  and  declare  or  post- 
pone dividends  (B.  A.,  1856,  ss.  125,  130,  132,  85,  134).  Their  concurrence 
is  necessary  to  enable  the  trustee  to  do  certain  acts,  such  as  fixing  the  price 
of  the  heritable  estate  for  sale  (s.  114),  fixing  a  meeting  of  creditors  to 
consider  as  to  sale  of  the  whole  estate  (s.  136),  and  the  compromising  or 
referring  to  arbitration  of  claims  (ss.  85,  176).  They  are  liable  to  account 
for  their  intromissions  (s.  86),  but  not  liable  for  damage  arising  from  their 
advice  to  the  trustee  {Wilson,  1803,  Mor.  13968;  Kirkland,  1838,  16  S. 
860).  On  the  other  hand,  their  sanction  does  not  relieve  the  trustee  from 
the  consequences  of  failure  to  perform  a  statutory  duty  {Malcn,  1837,  15  S. 
1087). 

VIII.  Examination  of  Bankrupt. 

Within  eight  days  after  the  date  of  his  act  and  warrant  the  trustee 
must  apply  to  the  Slierih"  to  name  a  day  for  the  public  examination  of  the 
bankrupt.  The  Sheriff  thereupon  issues  his  warrant  on  the  bankrupt  to 
attend  within  the  Sheriff  Court  House  on  a  specified  day  and  at  a  specified 
hour,  being  not  sooner  than  seven  nor  later  than  fourteen  days  from  the 
date  of  the  warrant  (B.  A.,  1856,  s.  87).  The  diet  is  published  by  the 
trustee  in  the  Gazette  (Schedule  F)  and  intimated  by  him  to  the  creditors 
through  the  post  {ih.).  The  practice  is  to  make  publication  in  the  Gazette 
first  issued  after  the  date  of  the  warrant.  If  necessary,  the  Sheriff  grants 
warrant  to  apprehend  the  bankrupt  and  bring  him  up  for  examination,  or 
to  have  him  delivered  up  from  prison  {ih.,  s.  88;  see  M'Kellar,  1861,  23  D. 
1269).  Warrant  may  also  be  granted  for  his  apprehension  or  transmission 
from  prison  if  out  of  Scotland  (s.  89;  see  46  &  47  Vict.  c.  52,  ss.  117,  118, 
as  to  enforcement  of  warrants  out  of  Scotland).  A  commission  may  be 
granted  for  the  bankrupt's  examination  "  if  the  bankrupt  cannot  be  brought 
from  jail  or  the  sanctuary,  or  cannot  Ije  examined  by  the  Sheriff  there,  or  is 
by  a  lawful  cause  prevented  from  attending  at  the  time  and  place  appointed, 
or  is  in  custody  on  a  criminal  charge,  or  is  abroad"  (B.  A.,  1856,  s.  88; 
A.  S.,  10  July  1839,  s.  69).  It  has  been  held  to  be  a  "  lawful  cause  "  justify- 
ing a  commission,  that  the  bankrupt  was  unable  througli  want  of  funds  to 
pay  his  travelling  expenses  {Sinclair,  1897,  5  S.  L.  T.  172,  per  Ld.  Pearson). 


SEQUESTRATION  197 

Parties  other  than  the  bankrupt  may  at  any  time  be  examined  under  an 
order  by  the  Sheritf  obtained  on  the  trustee's  appHcation.  These  are  "  the 
bankrupt's  ^vife  and  family,  clerks,  servants,  factors,  law  agents,  and  others 
who  can  give  information  relative  to  his  estate"  (B.  A.,  1856,  s.  90;  see 
Burnet,  1855, 17  D.  933  ;  A.  B.,  1858,  20  D.  1058  ;  Sawers,  1858,  21  D.  153). 
It  is  incompetent,  however,  to  examine  a  creditor  or  litigant  with  the 
trustee  (or  his  law  agent)  as  to  his  claim  (>Sawc7-s,  siqn'a ;  A.  B.,  supra; 
Brash,  1888,  15  E.  583).  The  trustee  does  not  require  to  state  special 
reason  in  applying  for  warrant  to  examine  third  parties  {Burnet,  1855, 
17  I).  933;  Park,  1871,  10  M.  10).  They  are  entitled  to  an  allowance  as 
witnesses  (B.  A.,  1856,  s.  90).  Third  parties  who  refuse  or  neglect  to  appear 
may  be  apprehended  on  the  Sheriff's  warrant,  whicli  in  the  case  of  others 
than  members  of  the  bankrupt's  family  or  his  clerks  or  servants  cannot  be 
issued  until  the  expiry  of  eight  days  from  the  service  of  the  first  warrant, 
unless  tlie  trustee  specify  on  oath  a  reasonable  ground  of  belief  that  they 
intend  to  leave  the  country  to  avoid  examination  (B.  A.,  1856,  s.  90).  Third 
parties  in  Scotland  may,  if  necessary,  be  examined  on  commission  {ib.). 
Where  a  trustee  desired  to  examine  third  parties  in  England  or  Ireland,  it 
was  held  that  he  might  apply  to  tlie  Sheriff,  who  would  grant  an  order  and 
request  the  Bankruptcy  Court  in  England  or  Ireland  to  aid  in  carrying  it 
out  {Park,  1871,  10  M.  10;  46  &  47  Vict.  c.  52,  ss.  117,  118). 

The  bankrupt  or  others  examined  must  answer  "  all  lawful  questions 
relating  to  the  affairs  of  the  bankrupt"  (B.  A.,  1856,  s.  91).  The  object  of 
the  examination,  however,  is  to  ascertain  what  "  the  bankrupt's  estate 
consists  of,  where  it  is,  and  what  he  has  done  with  it  or  to  affect  it " 
{Delvoitte,  1877,  5  E.  143,  per  Ld.  Pres.  Inglis).  This  excludes  examination 
as  to  the  claim  of  a  creditor  or  person  litigating  with  tlic  trustee  {Bclvoitte, 
1877,  5  E.  143;  Savxrs,  1858,  21  D.  153;  A.B,  1858,  20  D.  1058;  Brash, 
1888,  15  E.  583;  Paul,  1855,  17  D.  457).  A  question  as  to  the  bankrupt's 
present  residence  was  disallowed  {Tod,  1872,  10  M.  980). 

The  examination  is  not  subject  to  strict  rules  of  evidence  (see  Sawers^ 
supra,  per  Ld.  Benholme;  M'Kay,  1863,  1  ]\I.  440),  nor  are  confidential 
communications  privileged  {Saicers,  sup)ra ;  see  Mackcrsy,1^2o,  2  S.  225). 
Third  parties  are  not  bound  to  answer  questions  that  will  criminate  them 
or  expose  them  to  any  penalty  or  forfeiture  (Bell,  Com.,  5th  ed.,  ii.  396  and 
398  ;  16  Vict.  c.  20,  s.  3  ;  as  to  bankrupt,  see  Sawers,  supra,  per  Ld.  Cowan  ; 
ex  parte  Cossens,  Buck,  540;  in  re  Heath,  2  D.  &  C.  214;  ex  parte  Schojield, 
6  Chan.  Div.  230). 

A  party's  deposition  may  be  used  as  evidence  agninst  himself  in  other 
proceedings  (Dundas,  Bell,  Com.,  5th  ed.,  ii.  400,  note) ;  Init  not  against  olliers, 
unless  the  dcqjoncnt  has  died  {VinW,  Com.,  5i\\  ed.,  ii.  482;  see  Kirk/and, 
1831,  10  S.  169;  Smith,  1820,  2  Alur.  342;  Ilnntcr,  1822,  3  Mur.  231). 

The  Sheriff  may  order  third  parties  "  to  produce  for  hispection  any 
books  of  account,  pa])erH,  deeds,  writings,  or  other  documents  in  llicir 
custody  relative  to  the  l)ankrupt's  affairs,  and  cause  the  same  or  copies 
tliereof  to  be  delivered  to  the  trustee"  (B.  A.,  1856,  s.  91 ;  see  Selkirk,  1880, 
8  E.  29;  Pollock,  1844,7  D.  172).  Whrie  the  bankrupt  was  a  i^uMican, 
the  Court  ordered  delivery  to  be  given  to  tlie  trustee  of  the  licence  and 
permit  book  {Frnsrr's  Tr.,  1896,  2;i  E.  978).  The  trustee  cannot  retain 
documents  ])roduced  by  third  ])arties  {Trov'sdcde,  1867,  5  M.  824). 

The  examination  is  on  oath  (or  affirmation), and  jnoiccils  in  ])resencc  of 
the  Sheriff,  who  writ(!H  or  dictates  the  evidence  of  the  bankrupt  (15.  A.,  1856, 
s.  92;  see  APfufos/,,  1828,  6  S.  648;  MPvaj/,  \HG:),  I  M.  440),  and,  in  the 
case  of  third  parties,  takes  notes  of  the  evidence  as  prescrilied  by  16  &  17 


198  SEQUESTEATION 

Vict.  c.  80,  s.  10,  except  where  it  appears  to  him  necessary  to  record  and 
authenticate  it  in  form  of  a  regular  deposition  (B.  A.,  1856,  s.  92).  The 
examination  is  in  open  Court  or  in  private,  as  the  trustee  decides  (B.  A., 
1856,  s.  92  ;  see  Wright,  1878,  6  R.  289),  and  in  practice  usually  proceeds  in 
open  Court.  It  may  be  adjourned  by  the  Sherift'  or  commissioner  for  a 
brief  interval,  to  enaljle  it  to  be  proceeded  with  and  closed  (B.  A.,  1856, 
ss.  88,  90;  see  Wright,  siqjra;  Walker,  1861,  24  D.  155),  but  not  at  the 
instance  of  creditors  to  permit  of  inquiries  to  test  the  bankrupt's  statements 
{Unger,  1867,  5  M.  1049).  The  questions  may  be  put  by  the  trustee,  the 
;Sheriff,  or  any  creditor  (or  his  mandatory)  with  the  sanction  of  the  Sheriff 
<B.  A.,  1856,  s.  93 ;  Smyth,  1843,  6  D.  331 ;  Clarh,  1848,  10  D.  1471).  A 
creditor  is,  as  a  rule,  entitled  to  put  any  lawful  question  to  the  bankrupt 
which  he  thinks  it  in  his  interest  to  put,  and  the  trustee  is  not  entitled  to 
object  on  the  ground  that  the  answer  will  be  injurious  to  the  general  body 
of  creditors  {Barstoio,  1849,  11  D.  687;  see  Wright,  1852,  24  Jur.  230). 

The  Sheriff  may  order  the  bankrupt  to  be  examined  as  often  as  he  shall 
see  fit,  on  application  by  the  trustee  (B.  A.,  1856,  s.  88)  on  grounds  stated 
(Somerville,  1859,  21  D.  467).  The  creditors,  at  a  general  meeting  called 
for  the  purpose,  may  direct  such  application  {Somerville,  supra),  but  not 
individual  creditors  (see  linger,  1867,  5  M.  1049,  per  Ld.  Cowan). 

The  bankrupt,  before  the  close  of  his  examination,  may  make  such 
additions  to  or  alterations  upon  the  state  of  his  affairs  as  may  have  occurred 
to  him  to  be  necessary,  the  state  being  then  subscribed  by  the  Sheriff  and 
the  bankrupt.  The  bankrupt  finally  emits  a  statutory  oath  deponing  to  the 
full  disclosure  of  his  estate  and  affairs,  which  is  engrossed  in  the  sederunt 
book  and  subscribed  by  the  Sheriff  and  the  bankrupt  (B.  A.,  1856,  s.  95). 

A  latent  partner  of  a  sequestrated  company  must  intimate  the  fact  of 
liis  partnership  to  the  trustee  on  or  before  the  clay  of  examination  on  pain 
of  forfeiting  the  privileges  of  the  Act,  unless  he  satisfies  the  Lord  Ordinary 
or  the  Sheriff  that  tlie  omission  arose  from  innocent  causes,  and  takes  steps 
to  remedy  the  omission  {it.,  s.  94). 

Any  deliverance  by  the  Sheriff  finding  a  party  liable  or  not  liable  to 
examination,  or  admitting  or  refusing  a  question,  may  be  appealed  within 
eiglit  days  to  either  Division  of  the  Court  of  Session,  or  the  Lord  Ordinary  on 
the  Bills  during  vacation  (B.  A.,  1856,  s.  170 ;  see  Frascr,  1896,  23  E.  978 ; 
Polloch,  1844,  7  D.  172 ;  Paul,  1855,  17  D.  457). 

For  enforcing  the  right  of  examination  and  production  of  papers,  etc., 
the  Sheriff  is  vested  with  power  to  commit  recalcitrants  to  prison,  his 
warrant  not  being  subject  to  review,  but  only  to  recall  on  petition  to  the 
Lord  Ordinary  on  the  Bdls  (B.  A..  1856,  s.  93  ;  see  Bell,  5th  ed.,  ii.  398 ; 
Nicol,  1851,  13  D.  614;  Auld,  1888,  25  S.  L.  E.  434). 

Eeference  may  be  made  to  the  "Notes  issued  by  the  Accountant  of 
Court "  for  instructions  as  to  the  conduct  of  examinations  (see  Goudy  on 
Bankruptcy,  App.  746 ;  Parliament  House  Book). 

IX.  Sequestration  in  Eelatiox  to  Diligexce. 

1.  Adjudication        .         .         .         .     198    i    4.  Maills  and  Duties         .         .         ,200 

2.  Arrestment  and  Poinding     ,         .     199        5.  Landlord's  HyiJotliec   .         .         .     200 

3.  Poinding  of  the  Ground        .         .     199    |    C.  In  case  of  Deceased  Debtor  .         .     200 

1.  Adjudication. — Sec.  107  of  the  Bankruptcy  Act,  1856,  provides — 
"  The  sequestration  shall,  as  at  the  date  thereof  {i.e.  the  date  of  the  first 
deliverance,  s.  42],  be  equivalent  to  a  decree  of  adjudication  of  the  heritable 
estates  of  the  bankrupt  for  payment  of  the  whole  debts  of  the  bankrupt. 


SEQUESTEATION  199 

principal  and  interest,  accumulated  at  the  said  date,  and  when  the  seques- 
tration is  dated  within  year  and  day  of  any  effectual  adjudication,  the 
estate  shall  be  disposed  of  under  the  sequestration  according  to  the 
provisions  of  this  Act ;  provided  that  nothing  herein  contained  shall  affect 
the  rio-hts  of  any  heritable  creditor  holding  a  power  of  sale  preferable  to 
the  powers  of  the  trustee."  (As  to  Crown  debts,  see  Bell,  Com.  ii.  52,  and 
5th  ed.,  330  ;  Com,  on  Recent  Statutes,  49.) 

2.  Arrestment  and  Poinding. — Sec.  108  provides — 
"  The  sequestration  shall,  as  at  the  date  thereof  [s.  42],  be  equivalent 
to  an  arrestment  in  execution  and  decree  of  forthcoming  and  to  an  executed 
or  completed  poinding ;  and  no  arrestment  or  poinding  executed  of  the  funds 
or  effects  of  the  bankrupt  on  or  after  the  sixtieth  day  prior  to  the  seques- 
tration shall  be  effectual,  and  such  funds  or  effects,  or  the  proceeds  of  such 
effects,  if  sold,  shall  be  made  forthcoming  to  the  trustee ;  provided  that  any 
arrester  or  poinder  before  the  date  of  the  sequestration  who  shall  be  thus 
deprived  of  the  benefit  of  his  diligence  shall  have  preference  out  of  such 
funds  or  effects  for  the  expense  lond  fide  incurred  by  him  in  such  diligence." 
This  provision  applies  in  the  case  of  a  deceased  debtor  although  sequestra- 
tion is  awarded  after  seven  mouths  from  his  death  {Eough,  1857, 19  D.  305). 
Diligence  on  the  sixtieth  day,  excluding  the  date  of  the  sequestration,  is 
ineflbctual  (Stivcn,  1891,  18  K.  422).  Arrestments  struck  at  do  not  require 
to  be  loosed  (Allan,  1835,  14  S.  80).  The  expenses  for  which  a  poinding  or 
arresting  creditor  is  entitled  to  preference  are  in  practice  limited  to  the 
executio'ii  of  the  diligence.  Where  an  attachment  is  used  in  a  foreign 
comitry  prior  to  sequestration,  it  is  doubtful  whether  it  would  fall  under 
the  equalising  rules  of  the  statute  (see  Lindsay,  1840,  2  D.  1373,  per  Ld. 
Gillies ;  Ord,  1847,  9  D.  541). 

It  is  a  question  under  the  first  part  of  the  above  enactment  whether 
sequestration,  where  awarded  within  four  months  after  notour  bankruptcy 
lias  been  constituted,  is  entitled  to  the  equality  of  ranking  with  prior 
dihf^ences  under  sec.  12  of  the  Act  of  1856,  which  provides  that  "arrest- 
ments and  poindings  which  sliall  have  Ijeen  used  witliin  sixty  days  prior  to 
the  constitution  of  notour  bankruptcy,  or  witliin  four  months  thereafter, 
shall  be  ranked  pari  jjassu  as  if  they  had  all  been  used  of  the  same  date." 
Under  the  earlier  statutes,  which  did  not  expressly  confer  on  sequestration 
the  elfects  of  an  arrestment  and  poinding  as  now  given  to  it  by  sec.  108  of 
the  185G  Act,  equalisation  was  not  admitted  (Bell,  Com.  ii.  75).  But  under 
the  12th  and  108th  sections  of  the  Act  of  1850,  sequestration  is  entitled  to 
such  e(iu;ility  (see  i\^tVo/so/?,  1872,  11  M.  179,  ])er  Ld.  Ueas ;  Galhraith,  1885, 
22  S.  L.  Ii.  002,  per  Ld.  Kinncar). 

3.  Poinding  of  the  Ground. — Xo  poinding  of  the  ground  which  has 
not  been  carried  into  execution  by  sale  of  the  effects  sixty  days  beiove  the 
date  of  the  sefjuestration  is  available  in  any  question  with  the  trustee, 
o.Kce])t  oidy  for  the  interest  on  the  debt  for  the  current  half-yearly  term, 
and  for  the  arrears  of  interest  for  one  year  immediately  before  the  com- 
mencement of  such  term  (P..  A.,  1850,  s.  118;  repealed  by  37  &  38  Vict. 
c.  94,  H.  55,  l»ut  re-enacted  jjy  42  &  43  Vict.  c.  40,  ss.  3-5.  As  to  common 
law  rule,  see  Camphell,  1835,  13  S.  237;  JJcU,  1831,  10  S.  100;  J)ic/,; 
1879,  G  IJ.  580;  Thomson,  1882,  9  11.  430;  UrqulmH,  1883,  10  K.  991). 
The  current  term  is  that  current  at  the  date  of  the  lirst  deliverance  in  the 
sequestration  {lindijc,  1872,  10  ^L  958).  It  is  conqKjtcnt  to  poind  currcntc 
tcrmhw  (Stewart,  1880,  8  Ii.  270).  "  Interest "  includes  the  case  of  a  ground- 
annual  {L'cH,  1890,  23  U.  050).  The  rights  of  a  sui)erior  are  not  aflected  by 
the  provision  (B.  A.,  1850,  s.  102,  2n(l).      The   rule  above  stated  applies 


200 


SEQUESTEATION 


where  the  bankruptcy  is  in  a  foreign  country,  and  also  to  the  case  of  poindings 
at  the  instance  of  creditors  of  the  bankrupt's  ancestor  (50  &  51  Vict.  c.  69, 

s.  2). 

4.  Maills  and  Duties.— The  effects  of  a  decree  of  maills  and  duties  m 
competition  with  the  sequestration  are  regulated  by  the  common  law  (37  & 
38  Vict.  c.  94,  s.  55,  repeaUng  sec.  118  of  the  B.  A.  1856).  A  creditor  may 
obtain  a  preference  for  the  full  amount  of  his  debt  by  an  action  of  maills 
and  duties,  and  such  action  may  be  raised  even  after  confirmation  of  the 
trustee  (see  Dick,  1879,  6  E.  586;  Thomson,  1882,  9  E.  430;  as  to  expenses 
of  decree,  see  Johnston,  1871,  8  S.  L.  E.  381). 

5.  Landlord's  Hypothec  is  declared  by  the  Bankruptcy  Act  to  be  not 
affected  by  sequestration  (B.  A.,  1856,  s.  119).  In  a  recent  case,  where  a 
tenant  during  the  currency  of  a  five  years'  lease  was  sequestrated  on  14th 
May  1897,  it  was  held  that  the  landlord  had  no  right  of  hypothec  for  the 
rent  of  the  year  from  Whitsunday  1897,  and  that,  on  payment  of  the 
Whitsunday  rent,  the  trustee  was  entitled  to  remove  the  furniture  in  the 
premises  {Saioers,  1897,  25  E.  45). 

6.  Deceased  Debtor. — "When  the  sequestration  of  the  estates  of  a 
deceased  debtor  is  dated  within  seven  months  after  his  death,  any  prefer- 
ence or  security  for  any  prior  debt  acquired  by  legal  diligence  on  or  after 
the  sixtieth  day  before  his  death,  or  subsequent  to  his  death,  and  any 
preference  or  security  acquired  for  a  prior  debt  by  any  act  or  deed  of  the 
debtor  which  has  not  been  lawfully  completed  for  a  period  of  more  than 
sixty  days  before  his  death,  and  any  confirmation  as  executor-creditor  after 
the  debtor's  death,  shall  in  these  several  cases  be  of  no  effect  in  competition 
with  the  trustee,  and  the  estates  and  effects  over  which  such  preferences  or 
securities  shall  have  been  obtained,  or  of  which  confirmation  shall  have 
been  expede,  shall  belong  to  the  trustee.  Provided  that  the  creditor  who 
is  so  deprived  of  the  benefit  of  his  diligence  or  confirmation  shall  have 
preference  for  payment  out  of  the  said  estates  or  effects  of  the  expenses  lond 
ficU  incurred  by  him  in  such  dihgence  or  confirmation  "  (B.  A.,  1856,  s.  110. 
As  to  preferences  or  securities  created  by  act  or  deed  of  debtor,  see  Scot. 
Prov.  Inst.,  1888,  16  E.  112).  Where  sequestration  is  awarded  subsequent 
to  seven  months  from  the  death,  a  confirmation  as  executor-creditor  expede 
within  sixty  days  prior  to  the  date  of  the  sequestration  is  apparently  not 
cut  down  (see  Bouf/h,  1857,  19  D.  305,  per  Ld.  Curriehill).  It  is  not  com- 
petent for  any  creditor  after  the  date  of  the  first  deliverance  to  be  confirmed 
executor-creditor,  or  to  raise  or  insist  in  any  adjudication  against  the 
estate  of  a  deceased  debtor  (B.  A.,  1856,  s.  30). 


X.  Vesting  of  Estate  in  Trustee. 


1.  General  Effects     .         .         .         .200 

2.  Moveable  Estate  .         .         .         .204 

3.  Heritable  Estate  in  Scotland        .     2U5 

4.  Real  Estate  in  England,  Ireland, 

etc. 20(J 

5.  Acquirenda  .....     207 

6.  Government        Pav,       Pensions, 

etc.  .         .  '      .         .         .209 


7.  Alienations  and  Preferences  by 

Bankrupt        .         .         .         .209 

8.  Rights  of  Action  .         .         .210 

9.  Contracts 210 

10.  Property  of  Bankrupt's  Wife      .     212 

11.  Property  lield  by  Bankrupt  as 

Trustee,  etc 213 

12.  Personal  Powers  of  Bankrupt     .     213 

13.  Reputed  Ownership    .         .         .214 


1.  General  Effects  of  Vesting. — Sec.  102  of  the  Bankruptcy  Act, 
1856,  provides  that :  "  The  act  and  warrant  of  confirmation  in  favour  of  the 
trustee  shall  i2:)so  jv.rc  transfer  to  and  vest  in  him,  or  any  succeeding  trustee 
for  behoof  of  the  creditors,  absolutely  and  irredeemably  as  at  the  date  of 


SEQUESTEATION  201 

the  sequestration  [i.e.  the  first  deliverance,  s.  42],  with  all  right,  title,  and 
interest,  the  whole  property  of  the  debtor  to  the  effect  following"  (see 
inf7-a  as  to  moveable  and  heritable  estate  particularly).  The  bankrupt 
remains  undivested  until  the  act  and  warrant. 

The  word  "property"  is  defined  as  including  "every  kind  of  property, 
heritable  or  moveable,  wherever  situated,  and  all  rights,  powers,  and  in- 
terests therein  capable  of  legal  alienation,  or  of  being  afi'ected  by  diligence 
or  attached  for  debt"  (B.  A.,  1856,  s.  4).  It  does  not  include  a  S2:>es 
successionis,  or  expectancy  not  becoming  a  vested  right  prior  to  the  bankrupt's 
discharge,  as,  e.fj.,  the  bankrupt's  chance  of  succeeding  to  the  capital  of  a  trust 
estate  under  liferent  provided  he  survive  the  liferenter,  till  which  event 
vesting  is  suspended  {lieid,  1893,  20  E.  510:  Trappes,  1871,  10  M.  38; 
KirUand,  1886,  13  E.  798;  see  MDonald,  1874,  1  E.  817).  But  the  bank- 
rupt cannot  defeat  the  chance  of  such  an  expectancy  falling  into  the 
sequestration  by  discharging  or  assigning  it  {Obcrs,  1897,  24  E.  719;  see 
Carter,  1862,  24  D.  925,  as  to  assignation  before  sequestration).  Nor  does 
the  sequestration  affect  alimentary  funds  except  quoad  an  excess  in  the  pro- 
vision as  the  same  may  be  defined  by  the  Court  (Bell,  Com.  i.  124-5: 
Livingstone,  1886,  14  E.  43 ;  Haydon,  1895,  3  S.  L.  T.  286). 

It  is  "  property  of  the  debtor"  which  passes  to  the  trustee.  This  means 
"  all  property,  whether  heritable  or  moveable,  in  which  the  bankrupt  has  a 
beneficial  interest,  whether  the  title  be  in  him  or  in  a  trustee  for  him,  to  the 
extent  of  that  interest"  {Hcrit.  Eeversy.  Co.,  1892,  19  E.  (H.  L.)  43,  per  Ld. 
Watson).  It  does  not  therefore  include  property,  either  heritable  or  move- 
able, held  by  the  bankrupt  in  trust  although  upon  a  title  ex  facie  absolute 
(Hcrit.  Heversy.  Co.,  supra;  Gordon,  1824,  2  S.  566;  Watson,  1879,  6  E. 
1247).  "  That  which  in  legal  as  well  as  in  conventional  language  is  described 
as  a  man's  property  is  estate,  whether  heritable  or  moveable,  in  which  lie  has 
a  beneficial  interest  which  the  law  allows  him  to  dispose  of.  It  docs  not 
include  estate  in  which  he  has  no  beneficial  interest,  and  which  he  cannot 
dispose  of  without  committing  a  fraud"  {Hcrit.  Iicrersy.  Co.,  siqira,  per  Ld. 
Watson).  This  princijile  extends  to  estate  held  by  the  bankrupt  on  ex  facie 
absolute  title  but  really  in  security.  Such  estate  will  only  pass  to  the 
trustee  by  way  of  security,  as  the  bankrupt  holds  it,  the  reversion  or  radical 
riglit  remaining  with  the  true  owner  (see  Hcrit.  Bcversy.  Co.,  siqira,  per  Ld. 
Watson ;  Forlcs  Trs.,  1898,  35  S.  L.  E.  720). 

A  different  question  arises  in  the  case  of  estate  originally  belonging  to  a 
debtor  in  beneficial  ownership,  but  wliich  he  has,  prior  to  his  sequestration, 
onerously  conveyed  or  assigned  by  delivered  disposition  or  assignation  to  a 
party  who  lias  delayed  to  complete  his  title  by  infeftmcnt  or  intimation 
before  completion  of  the  title  of  the  trustee.  Su])])ose,  for  examiile,  that  A., 
being  owner  of  a  house,  sells  and  dispones  it  by  delivered  conveyance,  for  a 
full  price  paid,  to  B.,  who  refrains  from  taking  infeftment,  and  possesses  the 
house  iq)on  his  unrecorded  conveyance.  If  A.  becoiuos  baiikru]it,  say  after 
twenty  years,  does  the  trustee  in  his  sccjuestratitin,  l)y  infcfting  himself  on 
his  act  and  warrant  before  B.  has  recorded  his  conveyance,  become  entitled 
to  claim  the  house  as  being  "property"  of  A.  within  the  meaning  of 
880.  102  of  the  1856  Act?  A.'s  position  differs  frf)m  that  of  a 
trustee  in  this  rcs])ect,  that  the  ])roperty  of  which  he  remains  undivested  is 
one  wliich  originally  belonged  to  him  in  full  beneficial  ownership.  Apart 
from  the  dicta  of  the  judges  of  the  House  of  Lords  in  the  case  of  the  Herit- 
able Reversionary  Co.  v.  Millar,  supra,  the  elfect  of  the  decisions  seems  to  1)e 
that  A.'s  trustee  would  take  the  property  in  ]>reference  to  V>.  Thus  whore  a 
woman  assigned  her  interest  in  a  tiust  estate;  to  trustees  under  an  antenuptial 


202  SEQUESTEATION 


ij ' 


marriage  contract,  who  omitted  to  intimate  the  assignation,  tlie  trustee  in 
the  cedent's  sequestration,  occurring  twenty-two  years  afterwards,  was  held 
entitled  to  prevail  (Tod's  Trs.,  1869,  7  M.  1100;  see  Morrison,  1876,  3  E. 
406;  Graemes  Tr.,  1888,  15  K.  691;  and  cf.  JVatson,  1879,  6  E.  1247,  per 
Ld.  Deas).     The  case  was  held  "  to  involve  a  simple  competition  between 
two  assignations  of  the  same  fund,"  and  the  doctrine  of  tantum  et  tale  was 
considered  to  be  inapplicable  (per  Ld.  Kinloch).     Again,  it  has  been  decided 
that  an  adjudging  creditor  of  a  seller  is  entitled  to  prevail  over  the  purchaser 
possessing  upon  an  unfeudalised  conveyance.     Thus,  where  A.  sold  and  con- 
veyed a  house  to  B.,  who  entered  into  possession  but  did  not  take  infeftment, 
and  thereafter  sold  to  C,  who  obtained  an  assignation  of  B.'s  disposition,  but 
likewise  abstained  from  taking  infeftment,  a  subsequent  adjudication  at  the 
instance  of  creditors  of  A.  was  held  preferable  to  the  right  of  C.  (Mitchells, 
Mor.  10296 ;  see  Smith,  1894,  22  E.  130,  per  Ld.  Kinnear).     An  adjudging 
creditor  seems  to  be  in  the  same  position  in  this  question  as  a  trustee  in 
sequestration.     Neither  of  them  gives  any  price  or  consideration  for  the 
property  claimed,  or  gives  credit  specifically  on  the  faith  of  the  undivested 
seller's  apparent  ownership  in  the  way  a  bond  fide  purchaser  does  (see  Herit. 
Revcrsy.  Co.,  supra,  per  Ld.  Watson).     It  is,  however,  very  difficult  to  recon- 
cile the  riglit  of  a  trustee  in  sequestration  to  take  estate  in  such  a  case  with 
the  principles  on  which  the  judgment  of  the  House  of  Lords  proceeded  in 
the  case  of  the  Heritable  Beversionary  Co.  v.  Millar,  sitjyra).     All  the  judges 
adopted,  as  a  criterion  of   the  trustee's  right,  the  test   of   whether   the 
estate  claimed  as  "  property  of   the  bankrupt "  was  estate  in  wdiich  the 
bankrupt   had   a   beneficial   interest  which  he   could  lawfully  dispose  of 
without  committing  a  fraud.    Attention  was  drawm  to  the  earlier  Sequestra- 
tion Acts,  which  provided  for  the  estate  being  transferred  to  the  trustee  by 
means    of    a   disposition   granted   by   the    bankrupt,  as    pointing   to    the 
result  that  the  estate  vesting  in  the  trustee  does  not  comprise  what  the 
bankrupt  could  not  lawfully  convey.     Ld.  Watson  said  that  the  bankrupt's 
property,  in  the  sense  of  the  Act,  consisted  of  estate  "in  which  he  has 
a  beneficial  interest  which  the  law  allows  him  to  dispose  of,"  to  the  extent 
of  such  interest,  but  does  not  include  estate  "  in  which  he  has  no  beneficial 
interest,  and  which  he  cannot   dispose  of  without  committing  a  fraud." 
The  other  judges  all  appealed  to  the  same  test ;  and  the  distinction  was 
emphatically  drawn  between  a  mere  legal  title,  on  the  one  hand,  and  the  real 
and  substantial  right  of  beneficial  ownership  on  the  other  hand.     The  case 
under  consideration  by  the  Court  was,  no  doubt,  one  of  trust  proper ;  but 
the  ratio  decidendi  above  referred  to  seems  to  have  a  wider  range.     Estate 
which  the  bankrupt  has,  prior  to  sequestration,  sold  and  conveyed  under  a 
delivered  but  unrecorded  conveyance  is  not,  in  ordinary  parlance,  "  pro- 
perty belonging  to  the  bankrupt,"  although  he  remains  undivested  of  the 
feudal  title.     Although  he  continues  to  hold  the  title,  he  cannot  be  said  to 
have  any  "  beneficial  interest  which  the  law  allows  him  to  dispose  of."     He 
commits  a  fraud  if  he  attempts  to  appropriate  the  subjects  to  his  own  uses 
by  selling  them  a  second  time,  or  making  them  over  to  a  prior  creditor  in 
satisfaction  of  his  claim.     He  may,  no  doubt,  give  a  good  title  to  a  bond  fide 
purchaser,  but  so  may  a  trustee  holding  an  ex  facie  absolute  title.     Suppose 
that  the  seller  in  such  a  case,  having  l3ecome  embarrassed,  is  approached  by 
his  whole  creditors,  who  propose  that  he  should  make  over  the  property  to 
them  privately  in  order  that  they  may  realise  it  and  divide  the  proceeds  in 
payment  of  their  claims.     His  answer  would  be  that  he  could  not  lawfully 
comply  with  their  request,  as  to  do  so  would  amount  to  a  fraudulent  appro- 
priation of  the  property  of  another  person.     If  this  is  so,  it  is  dilficult  on 


SEQUESTRATION  203 

principle  to  see  how  the  same  creditors,  by  initiating  a  sequestration  and 
electing  a  trustee,  could  put  themselves  in  a  position  to  have  the  subjects  in 
questioii  applied  in  payment  of  their  claims,  as  being  "  property  belonging 
to  the  bankrupt."  Can  the  statute  be  construed  as  legalising  an  appropria- 
tion of  the  property  to  the  creditors  which,  apart  from  it,  would  be  illegal 
and  fraudulent  ?  A  seller,  as  a  rule,  remains  ignorant  whether  the  pur- 
chaser has  completed  his  title  or  not ;  and  when  the  transaction  has  been 
settled  by  payment  of  the  price  and  dehvery  of  the  disposition,  it  is  not 
in  accordance  with  the  ordinary  use  of  language  to  describe  the  subjects 
sold  as  remaining  the  property  of  the  seller,  and  no  honest  seller  ever 
dreams  of  so  regarding  them. 

While  it  is  undoubtedly  difficult  to  reconcile  the  dicta  and  reasoning 
in  the  case  of  The  Heritalle  Reversionary  Co.  v.  Millar  with  the  previous 
decisions  on  the  sul)ject,  it  must,  however,  be  acknowledged  that  the  case 
contains  no  disapproval  of  these  decisions.  On  the  contrary,  the  case  of 
Mitchells  v.  Ferguson  {siqora)  is  expressly  approved  by  Ld.  Watson  as  one 
in  v,-hich  the  doctrine  of  tantum  et  tale  was  rightly  rejected.  It  may  be 
observed,  however,  that  his  Lordship  classes  that  case  as  one  where  there 
was  only  "  a  personal  right  to  demand  a  conveyance  "  from  the  seller,  which 
does  not  accurately  rei)resent  the  facts  of  the  case,  unless  the  unfulfilled 
obligation  to  infeft  is  pointed  at.  A  purchaser  holding  an  unrecorded  con- 
veyance differs  from  one  who  is  only  creditor  in  an  obligation  to  convey  in 
this  important  respect,  that  the  latter  cannot  complete  his  title  without  an 
act  of  the  seller,  upon  whose  bankruptcy  he  cannot  have  a  higher  right  to 
demand  performance  than  creditors  in  other  obligations,  and  must  rank 
;pari  passu  with  them  on  the  sequestrated  estate ;  while  the  former  is  under 
no  necessity  of  resorting  to  the  seller  or  his  trustee  for  performance  of  any 
act,  but  can  complete  his  title  at  his  own  hand.  A  buyer  of  goods  remain- 
ing undelivered  in  the  custody  of  the  seller  was,  prior  to  the  ]\Iercantile 
Law  Amendment  Act,  1856,  within  the  former  category. 

It  may,  finally,  b^e  noted  that  in  a  recent  case  where  property  had  been 
conveyed  by  a  husband  in  a  recorded  antenuptial  marriage  contract  to 
trustees  for  purposes  which  did  not  enter  the  record,  the  view  was  expressed 
that,  so  standing  the  title,  the  property  was  liable  to  be  adjudged  by  the 
hus])and's  creditors  (Smith,  1894,  22  li.  130,  per  Ld.  Kinnear). 

Where  tlie  bankrupt  stands  owner  of  estate  as  to  which  he  is  under 
•only  a  personal  obligation  to  convey  it  (as  under  a  pactum  de  retrovcndendo), 
the  propcrtv  will  pass  to  the  trustee,  and  the  creditor  in  the  personal 
obligation  will  only  be  entitled  to  a  ranking  on  the  sequestrated  estate  in 
resp°  ct  of  tlie  obligation  ( liyic,  1803,  Mor.  102G9  ;  see  Ilerit.  Rcvcrs7j.  Co., 
per  L<1.  AVutson). 

Tlie  vesting  of  the  bankrupt's  property  in  the  trustee  is  to  be  "subject 
always  to  sucli  i)refcrable  securities  as  existed  at  tlie  date  of  the  sequestra- 
tion, and  are  not  null  or  reducible"  (B.  A.,  185G,  s.  102,  1st,  2nd).  Where 
a  security  is  one  creating  a  nexus  merely,  as  an  arrestment,  the  trustee 
takes  the  property,  and  tlic  creditor  is  entitled  to  claim  in  tlic  ranking  such 
Ijreforciice  as  his  security  gives  him  (see  Lindsay,  1840,  2  I).  1373;  Cordon, 
1842,  4  D.  352;  Cihson,  1853,  IG  D.  233;  Mitchell,  1881,  8  II.  875). 
AVhere  it  confers  a  real  riglit,  as  a  pledge  or  heritalde  bond,  the  trustee  can 
only  take  the  security-subject  on  paying  the  debt.  He  is  entitled,  however, 
to  access  to  the  security-subject,  if  necessary,  to  enable  him  to  judge 
wlicther  he  will  redeem  it.  Thus  a  trustee  in  one  case  obtained  intcrcHct 
against  a  sale  of  goods  until  he  had  an  opportunity  of  inspecting  them 
{Ro-y-!,  1826,  5  S.  178).     In  the  case  of  a  law  agent's  hypothec  over  papers 


204  SEQUESTRATION 

in  his  hand,  the  law  agent  must,  if  required,  give  them  up  to  the  trustee, 
being  tlien  entitled  to  a  preference  for  the  amount  of  his  claim  {Johnstone, 
1823,  2  S.  133;  Benny,  1811,  3  D.  1134;  Benny,  1847,  9  D.  619;  Skinner, 
1865,  3  M.  867;  Adam  and   Winchester,  1884,11  E.  863;  see  Craicj,  1895, 

2  S.  L.  T.  484,  3  S  L.  T.  24).  The  preference  must  be  made  good  in  the 
ranking;  there  is  no  claim  against  the  trustee  personally  {White's  Tr., 
supnc).  The  preference  extends  over  the  sequestrated  estate  generally 
{Skinner,  supra,  per  Ld.  J.-Cl.  Inglis). 

The  holder  of  a  security  not  completed  by  intimation  or  infeftment, 
may  complete  it  effectually  at  any  time  before  the  trustee  obtains  a  title 
by  confirmation  or  infeftment  {Buchan,  Mor.  2905  ;  Cormach,  1829,  7  S.  868^ 
Smith,  1857,  19  D.  384;   Tod's   Trs.,  1869,  7  M.   1100;  Morrison,  1876, 

3  11.  406;  Bell,  Com.  on  Becent  Statutes,  168). 

Where  a  new  trustee  has  been  elected,  his  act  and  warrant  will  draw 
back,  so  as  to  make  his  title  continuous  with  that  of  the  former  trustee 
(B.  A.,  1856,  s.  102). 

Where  the  bankrupt's  rights  are  subject  to  equitable  exceptions,  these 
can  be  pleaded  against  the  trustee,  who  takes  the  estate  tantuvi  et  tale  as  it 
stands  in  the  bankrupt  (see  Gordon,  1824,  2  S.  566  ;  Littlejohn,  1855,  18  1). 
207;  Flceming,  1868,  6  M.  (H.  L.)  113;  Weitson,  1879,  6  E.  1247;  Hcrit. 
Beversy.  Co.,  1891,  18  E.  1166,  19  E.  (H.  L.)  43).  The  precise  hmits  of  this 
familiar  rule  are  difficult  to  define.  The  dictum  of  Ld.  Westbury  in 
Flceming,  1868,  6  M.  (H.  L.)  121,  assimilating  the  trustee's  position  to 
that  of  a  gratuitous  alienee,  has  been  characterised  as  one  requiring  con- 
siderable modification  {Herit.  Beversy.  Co.,  1892,  19  E.  (H.  L.)  43,  per  Ld. 
AVatson).  The  following  instances  illustrate  the  rule :  I'ropeity  acquired 
by  the  bankrupt's  fraud  cannot  be  retained  {Thomson,  1786,  Mor.  10229; 
Watt,  1846,  8  D.  529;  Molleson,  1873,  11  M.  510),  or  funds  wrongly 
immixed  with  his  own,  if  distinguishable  {Macadam,  1872,  11  M.  33);  nor 
can  illegal  oljligations,  such  as  those  for  gambling  debts,  be  sued  on  (see 
Nicholson,  5  El.  &  Bl.  999 ;  cf.  Tennant,  1  B.  &  P.  3).  Again,  a  trustee's 
right  to  demand  a  valid  feu-charter  in  implement  of  articles  of  roup  under 
which  the  l)ankrupt  had  bought,  was  held  subject  to  a  bond  granted  by 
the  bankrupt  while  holding  under  a  defective  title  previously  granted 
under  the  articles  which  was  erroneously  thought  to  give  him  a  good  feudal 
title  {Edmond,  1855,  18  D.  47,  and  (H.  L)  3  Macq.  116).  A  clause  of 
devolution  in  an  unrecorded  but  feudalised  entail  excluded  the  trustee  in 
the  sequestration  of  an  heir  of  entail  supervening  after  the  event  which 
brought  the  clause  of  devolution  into  operation  {Flceming,  supra).  A 
tenant  of  a  house  who  prepaid  rent  in  bond  fide,  was  held  not  liable  to 
repeat  it  to  the  trustee  in  a  sequestration  of  the  landlord  occurring  prior  to 
the  term  {Davidson,  1868,  7  M.  77).  Again,  a  trustee  was  held  to  be 
barred  from  founding  jurisdiction  by  arrestment  against  a  debtor  to  the 
bankrupt,  on  the  ground  that  the  fund  arrested  could  not  have  been 
arrested  by  the  bankrupt  himself  without  his  committing  a  breach  of 
trust  {More  {Graem.e's  Tr.),  1888,  15  E.  691). 

Any  person  claiming  right  to  any  estate  wrongly  included  in  a 
sequestration  may  present  a  petition  to  the  Lord  Ordinary  on  the  Bills 
praying  to  have  such  estate  taken  out  of  the  sequestration  (B.  A.,  1856, 
s.  104). 

2.  Vesting  of  Moveable  Estate.— The  act  and  warrant  vests  in  the 
trustee  as  at  the  date  of  sequestration  "  the  moveable  estate  and  effects  of 
the  bankrupt  wherever  situated,  so  far  as  attachable  for  debt,  to  the  same 
effect  as  if  actual  delivery  or  possession  had  been  obtained  or  intimation 


SEQUESTEATION  205 

made  at  that  date,  subject  always  to  such  preferable  securities  as  existed  at 
the  date  of  the  sequestration  and  are  not  null  or  reducible."  The  necessary- 
wearing  apparel  of  the  bankrupt,  his  wife  and  family,  are  excepted  (see 
sec.  95).  The  trustee's  title  requires  no  procedure  by  way  of  dehvery  or 
intimation  to  complete  it  (as  to  cases  of  competition  with  assio-uees  see 
Stradian,  1835,  13  S.  954;  Hill,  1846,  8  D.  472;  Tod's  Tr.,  18C9,  7  M. 
1100).  But  in  a  case  relating  to  shares  of  a  railway  company  it  was 
held  that,  as  registration  in  the  company  register  was  necessary  to 
complete  the  right,  an  assignee  who  obtained  himself  registered  a  year 
after  the  sequestration,  but  before  the  trustee,  was  preferable  {Morrison, 
1876,  3  E.  406 ;  see  Thomson,  1842,  5  D.  379). 

Where  the  sequestration  is  of  a  deceased  debtor,  and  a  successor  is  in 
possession  or  has  expede  confirmation,  the  judgment  awarding  sequestration 
ordains  the  successor  to  convey  the  estate  to  the  trustee  (B.  A.,  1856,  s.  29 ; 
see  sec.  4  for  definition  of  "  successor  "). 

Where  moveable  estate  is  under  effectual  arrestment  or  poinding  at  the 
date  of  the  sequestration,  the  trustee  is  entitled  to  take  such  estate,  and  the 
creditor  receives  the  benefit  of  his  preference  in  the  ranking  {Lindsay, 
1840,  2  D.  1373;  Gordon,  1842,  4  D.  352;  Gibson,  1853,  16  D.  233; 
Mitchell,  1881,  8  R  875).  A  summary  petition  by  the  trustee  for  delivery 
is  competent  {Allan,  1835,  14  S.  80 ;  see  Doiu,  1875,  2  E.  459,  per  Ld. 
Pres.  Inglis).     (See  supra,  General  Effects  of  Vesting.) 

3.  Vesting  of  Heritable  Estate  in  Scotland. — The  act  and  warrant  ipso 
jure  vests  in  the  trustee  as  at  the  date  of  the  sequestration  {i.e.  the  date  of 
the  first  deliverance,  s.  42),  "  the  whole  heritable  estate  belonging  to  the 
bankrupt  in  Scotland,  to  the  same  effect  as  if  a  decree  of  adjudication  in 
implement  of  sale,  as  well  as  a  decree  of  adjudication  for  payment  and  in 
security  of  debt,  subject  to  no  legal  reversion,  had  been  pronounced  in 
favour  of  the  trustee,  and  recorded  at  the  date  of  the  sequestration,  and  as 
if  a  poinding  of  the  ground  had  then  been  executed,  subject  always  to  such 
preferable  securities  as  existed  at  the  date  of  the  sequestration,  and  are  not 
null  and  reducible,  and  the  creditor's  right  to  poind  the  ground  as  herein- 
after provided ;  and  the  right  of  the  trustee  shall  not  be  challengeable  on 
the  gi'ound  of  any  prior  inliibition  (saving  the  effect  which  such  inhibition 
may  be  entitled  to  in  the  ranking  of  the  creditors) :  Provided  always,  that 
such  transfer  and  vesting  of  the  heritable  estate  shall  have  no  effect  upon  the 
rights  of  the  superior,  nor  upon  any  question  of  succession  between  the  heir 
and  executor  of  any  creditor  claiming  on  the  sequestrated  estate,  nor  upon 
the  riglits  of  the  creditors  of  the  ancestor  (except  that  tlie  act  and  warrant 
of  confirmation  shall  operate  in  their  favour  as  complete  diligence) ;  and 
if  any  i)art  of  the  bankrupt's  estate  lie  held  under  an  entail,  or  by  a  title 
otherwise  limited,  the  right  vested  in  the  trustee  sliall  be  effectual  only  to 
the  extent  of  the  interest  in  tlie  estate  wliich  the  l)ankrupt  miglit  legally 
convey,  or  tlie  creditors  attacli "  (B.  A.,  1856,  s.  102,  2nd). 

The  statutory  vesting  is  not  equivalent  to  infeftment,  nor,  in  tlie  case 
of  long  leases,  to  registration ;  tlie  register  in  which  the  statute  declares 
that  the  act  and  warrant  is  to  Ije  held  as  recorded  being  the  Ecgistcr  of 
Adjudications  (Goudy  on  JJankru'ptci/,  270  ;  cf.  observations  by  Ld.  Kinnear  in 
Ilcrit.  lieversy.  Co.,  1801,  18  R.  1106).  But  in  the  case  of  leases  and  other 
heritable  rights  n<»t  requiring  infeftment,  the  trustee's  title  is  complete 
under  his  act  and  waiiant  (Bell,  6'o?/i.  on  lieeent  Statutes,  168).  Where  a 
delator  assigned  his  lease  in  security  to  a  creditor  who  took  no  jiossession,  but 
intimated  the  assignation  to  the  landlord  and  granted  a  sublease  to  the 
debtor,  who  remained  in  possession  and  paid  the  rents,  the  assignation  was 


20G  SEQUESTEATION 


t ' 


held  ineffectual  against  the  trustee  in  the  debtor's  sequestration   {Brock, 
1830,  8  S.  647;  see  Clarh,  1882,  9  E.  1017 ;  Macdoivall,  1824,  2  S.  574). 

The  act  and  warrant,  while  infeftment  is  not  taken  upon  it,  does  not 
prevent  infeftment  by  persons  holding  uncompleted  conveyances.  "  The 
effect  of  this  provision  as  to  such  heritage  as  requires  sasine  is  to  make  the 
trustee  run  a  race  of  diligence  for  the  obtaining  of  sasine  with  creditors 
holding  an  inchoate  security ;  the  first  completed  right  being  preferable  " 
(Bell,  Com.  on  Recent  Statutes,  168 ;  see  Buchan,  Mor.  2905  ^:»fr  curiam ; 
Cormack,  1829,  7  S.  868  ;  Melville,  1842, 4  D.  1311,  per  Ld.  Ivory ;  Lindsay, 
1844,  6  D.  771 ;  Smith,  1857,  19  D.  384).  As  to  the  right  of  the  trustee  in 
competition  with  purchasers  holding  unfeudalised  conveyances,  reference 
may  be  made  to  what  has  been  already  said  {ante,  p.  201).  The  trustee 
may  complete  his  title  by  expeding  a  notarial  instrument  under  31  &  32 
Vict.  c.  101,  s.  25,  Scheds.  (0)  and  (LL),  or,  in  the  case  of  long  leases,  under  20 
&  21  Vict.  c.  26,  s.  11,  Sched.  F.  To  prevent  questions  of  accretion  arising,  the 
title  should  be  made  up  in  the  trustee's  name.  The  opinion  has  been 
generally  held  that  a  title  made  up  in  name  of  the  bankrupt  will  accresce 
to  and  validate  prior  rights  granted  by  him,  as  to  which  accretion  would 
operate  had  the  bankrupt  himself  voluntarily  completed  his  title  before 
sequestration  (Menzies,  Conveyancing,  785 ;  Bell,  Conveyancing,  814 ;  Goudy 
on  Bankruptcy,  271,  272).  This  view,  however,  is  questioned  by  Prof.  Bell 
{Com.  i.  738  ;  Prin.  s.  882  (5)).  The  bankrupt  must  grant  all  deeds 
necessary  for  recovering  his  property  and  feudally  vesting  it  in  the  trustee, 
and  superiors  must,  if  required,  enter  the  trustee,  or  purchasers  from  him,  in 
terms  of  law  (B.  A.,  1856,  s.  105). 

The  trustee  may  sell  and  convey  the  heritable  estate  without  making 
up  a  feudal  title  and  without  the  concurrence  of  the  bankrupt,  such 
conveyances  being  as  effectual  as  if  granted  by  the  bankrupt  with  con- 
currence of  the  trustee,  and  not  affected  by  any  inhibition  against  the 
bankrupt  {it.). 

The  effect  of  an  inhibition  prior  to  sequestration  is  to  give  the  inhibiting 
creditor  a  preference  in  ranking  for  his  debt  in  competition  with  creditors 
in  debts  contracted  after  the  inhibition  {Ewing,  1860,  22  D.  1347 ;  see 
sec.  102,  supra). 

Where  the  bankrupt  is  an  heir  of  entail,  the  trustee  can  petition  for 
disentail  under  the  provisions  of  the  Entail  (Scotland)  Act,  1882.  As  to 
minister's  glebe,  see  Learmonth,  1858,  20  D.  418. 

Where  the  sequestration  is  of  a  deceased  debtor  whose  successor  has 
made  up  title,  the  trustee  may  petition  tlie  Lord  Ordinary  on  the  Bills  to 
have  the  estate  transferred  to  and  vested  in  him  (B.  A.,  1856,  s.  106),  and 
that  although  the  estate  has  passed  from  the  immediate  successor  to  a  more 
remote  one  {Barstoio,  1843,  6  D.  293 ;  see  this  case  as  to  reservation  of 
preferable  rights  and  securities  granted  over  the  property). 

The  act  and  warrant  operates  "  as  complete  diligence  "  in  favour  of  the 
creditors  of  the  ancestor.  As  to  the  construction  of  this  clause,  see 
Millar's  Trs.,  1886,  13  E.  543 ;  and  as  to  diligence  against  estate  by 
ancestor's  creditors,  see  Act  1661,  c.  24 ;  Bell,  Com.  i.  770,  and  5th  ed.,  ii.  734). 

As  to  the  liabilities  of  the  trustee  in  regard  to  heritable  property  taken 
up  by  him,  see  infra.  Onerous  Contracts. 

4.  Eeal  Estate  in  England,  Ireland,  etc. — The  act  and  warrant  ipso 
jure  transfers  to  and  vests  in  the  trustee  as  at  the  date  of  the  sequestration, 
"  all  real  estate  situated  in  England,  Ireland,  or  in  any  of  Her  Majesty's 
dominions,  belonging  to  the  bankrupt,  and  all  interest  in  or  regarding  such 
real  estate,  which  the  bankrupt  held,  or  to  which  he  was  entitled :  Provided 


SEQUESTEATION  207 

always,  that  as  regards  all  freehold,  copyhold,  and  leasehold  estate  in 
England,  Ireland,  or  any  of  Her  Majesty's  dominions  (except  Scotland),  the 
act  and  warrant  of  confirmation  shall  be  registered  in  the  chief  Coiu't  of 
Bankruptcy  for  the  country  in  which  the  property  is  situated,  in  the  like 
manner  as  an  adjudication  of  bankruptcy  or  other  similar  process  ouoht  to 
be  registered  according  to  the  law  of  that  country,  either  in  a  separate  book 
or  in  the  general  book,  as  the  Court  of  Bankruptcy  shall  order,  or  to  the 
intent  that  all  persons  concerned  may  have  the  same  means  of  ascertaiuino- 
whether  any  person  has  been  adjudged  a  bankrupt  according  to  the  law  of 
Scotland  as  they  have  or  shall  liave  of  ascertaining  whether  any  person  has 
been  adjudged  a  bankrupt  according  to  the  law^  for  the  time  being  of  the 
country  in  which  the  property  is  situated ;  and  no  purchaser  for  valuable 
consideration  of  any  freehold,  copyhold,  or  leasehold  estate  (except  in  Scot- 
land) shall  be  aftected  by  any  such  bankruptcy  until  the  act  and  warrant  of 
confirmation  shall  have  been  so  registered  as  aforesaid :  Provided  also,  that 
where,  according  to  the  laws  of  England,  Ireland,  or  other  Her  Majesty's 
dominions,  any  deed  or  conveyance  would  require  registration,  enrolment,  or 
recording,  the  act  and  warrant  of  confirmation  shall  be  so  registered,  enrolled, 
or  recorded  according  to  the  laws  of  England,  Ireland,  or  other  Her  ]\Iajesty's 
dominions ;  and  if  any  purchase  is  made  by  any  person  for  valuable  con- 
sideration, and  without  notice  of  the  sequestration  prior  to  the  registration, 
enrolment,  or  recording  of  the  said  act  and  warrant  of  confirmation,  such 
purchase  sliall  not  be  invalidated  by  the  existence  of  such  act  and  warrant, 
or  the  subsequent  registration,  enrolment,  or  recording  thereof"  (B.  A., 
E.  102,  3rd). 

The  transference  operated  as  above  does  not  dispense  with  the  formalities 
of  conveyancing  required  by  the  law  of  the  country  wliere  the  estate  is 
situated. 

5.  ACQUIREXDA. — All  property  acquired  by  the  bankrupt  prior  to  his 
discharge  falls  under  the  sequestration.  Sec.  103  of  the  Bankruptcy  Act, 
1856,  provides  as  follows  : — 

"  cm.  Acquisitions  of  Bankrupt  after  the  Sequestration  to  Iclong  to  the 
Creditors. — If  any  estate,  wherever  situated,  shall,  after  tlic  date  of  the 
sequestration,  and  before  the  bankrupt  has  obtained  his  discharge,  be 
acquired  by  him,  or  descend  or  revert  or  come  to  him,  the  same  shall  ipso 
jure  fall  under  tlie  sequestration,  and  the  full  riglit  and  interest  accruing 
thereon  to  the  bankrupt  shall  be  held  as  transferred  to  and  vested  in  the 
trustee,  as  at  tlie  date  of  the  acquisition  thereof  or  succession,  for  the 
purposes  of  this  Act ;  and  the  trustee  sliall,  on  coming  to  the  knowledge  of 
the  fact,  present  a  petition  setting  forth  the  circumstance  to  the  Lord 
Ordinary,  who  shall  appoint  intimation  to  be  made  in  the  Gazette,  and 
require  all  concerned  to  appear  within  a  certain  time  for  their  interest ;  and 
after  the  exjiiration  of  such  time,  and  no  cause  being  shown  to  the  contrary, 
the  Lord  Ordinary  shall  declare  all  right  and  interest  in  such  estate  which 
belongs  to  the  bankrupt  to  be  vested  in  the  trustee,  as  at  the  date  of  the 
acquisition  thereof  or  succession  thereto,  to  the  same  effect  as  is  herein- 
})cforo  ciiact(!d  in  regard  to  the  other  estates;  and  the  ])roceeds  thereof, 
when  sold,  shall  be  divided  in  terms  of  this  Act;  and  if  the  bankrui)t  do  not 
immediately  notify  to  the  trustee  that  such  estate  has  been  acquired,  or  has 
come  to  him  as  aforesaid,  lie  shall  forfeit  all  the  benefits  of  this  Act,  and  it 
shall  be  competent  to  the  trustee  to  examine  him  as  aforesaid  in  relation 
thereto  :  I'rovided  always  that  the  rights  of  the  creditors  of  the  person  from 
whom  such  estate  shall  come  or  descend  to  the  l>ankrupt  shall  be  reserved 
entire"  (sec  sec.  20;  Trappcs,  1871,  10  M.  38;  Taylor,  1870,  7  E.  128; 


208  SEQUESTEATION 

Abel,  1883,  11  E.  149;  MrtJi.  Hcrit.  Co.,  1888,  16  E.  100,  and  18  E.  (H.  L.) 
37).  The  petition  to  the  Lord  Ordinary  should  specify  the  particular  estate 
and  mode  and  date  of  acquisition  (see  Mein,  1855,  17  D.  435). 

A  sum  of  damages  recovered  by  the  bankrupt  in  an  action  for  slander 
was  held  to  fall  under  this  section  {Jackson,  1875,  3  E.  130).  A  spes 
successions  or  expectancy  does  not  fall  under  the  sequestration  until  it 
vests  (Eeid,  1893,  20  E.  510);  but  the  bankrupt  cannot  deprive  his 
creditors  of  the  chance  of  its  vesting  during  the  sequestration  by  discharg- 
ing or  assigning  it  (Oiers,  1897,  24  E.  719).  The  salary  of  an  office  vested 
in  the  bankrupt  at  the  date  of  sequestration  is  regarded  as  estate  then 
belonging  to  him  and  recoverable  under  the  102nd  section  of  the  Act,  not 
under  the  103rd  {Barron,  1881,  8  E.  933 — schoolmaster  appointed  ad 
vitam  aid  culpam).  The  salary  of  a  professor  has  been  held  to  be  attached 
by  sequestration  {Laidlatv,  1801,  Mor.  App.  voce  "  Arrestment,"  No.  4),  as  also 
the  stipend  of  a  clergyman  {A.  B.,  1824,  3  S.  133 ;  see  Lcarmonth,  1858,  20 
D.  418,  as  to  glebe).  In  such  cases,  however,  the  bankrupt  is  entitled  to  a 
hencficiitm  competentice  {ih.).  In  the  case  of  Barron  the  question  was  raised 
how  far  a  bankrupt's  personal  earnings  after  sequestration  (not  derived  from 
an  office  vested  in  him  at  date  of  sequestration)  can  be  claimed  by  the 
trustee.  The  trustee's  claim  was  negatived  by  the  Lord  Ordinary  (Ld. 
Eraser),  but  the  case  was  decided  in  the  Inner  House  upon  the  ground  that 
the  103rd  section  did  not  apply  (see  also  3Ioinet,  1833, 11  S.  348).  The  ques- 
tion is  not  decided  in  Scotland.  In  England  the  creditors  cannot  claim 
purely  personal  earnings  of  the  bankrupt,  except  accumulated  savings  over 
and  above  what  is  required  for  the  maintenance  of  the  bankrupt  and  his 
family  {Chippendall,  4  Doug.  318  ;  ex  parte  Vine,  8  Chan.  Div.  364;  Emden, 
17  Chan.  Div.  768).  But  earnings  from  carrying  on  a  business  by  aid  of 
servants  are  not  protected  to  the  same  extent  {Crofton,  1  B.  &  Ad.  568 ; 
Elliot,  16  Q.  B.  581 ;  in  re  Doivling,  4  Chan.  Div.  689). 

If  the  acquisitions  claimed  by  the  trustee  are  the  product  of  a  business 
which  the  bankrupt  has  carried  on  with  the  acquiescence  of  the  trustee  and 
creditors,  the  trustee  may  be  barred  from  claiming  such  acquisitions  to  the 
exclusion  of  new  creditors  (see  Christie,  1835,  14  S.  191 ;  Abel,  1883,  11  E. 
149 ;  Fisken,  1845,  7  D.  842 ;  Mevii,  1855,  17  D.  435  ;  Troughton,  Amb. 
630  ;  Tucker,  4  De  G.,  M.  &  G.  395 ;  Ford,  1  Chan.  Div.  521 ;  ex  parte 
Watson,  12  Chan.  Div.  380  ;  Goudy  on  Bankruptcy,  277). 

It  will  be  a  good  answer  by  the  bankrupt  to  the  petition,  if  established, 
that  the  estate  claimed  has  been  abandoned  to  him  by  the  creditors,  either 
expressly  or  by  a  course  of  actings.  "  The  acts  of  the  trustee  and  creditors 
in  relation  to  it  may  be  such  as  to  indicate  that  the  bankrupt  is,  according 
to  their  desire,  to  be  deemed  to  be  in  future  the  master  or  the  owner  of  the 
property,  and  that  they  have  abandoned  and  rejected  it "  (per  Ld.  Watson  in 
North.  Hcrit.  Co.,  1891,  18  E.  (H.  L.)  37).  Knowledge  that  the  bankrupt  is 
carrying  on  a  trade  or  business  does  not  of  itself  imply  an  abandonment  by 
the  creditors  in  favour  of  the  bankrupt  of  their  claim  to  his  acquisitions 
(Bell,  Com.  i.  126, 127  ;  Troughton,  Amb.  630  ;  as  to  rights  of  new  creditors, 
see  supra).  It  is  no  answer  to  the  trustee's  claim  for  acquisitions  that  the 
trustee  has  been  discharged,  or  that  the  bankrupt  has  been  discharged, 
between  the  date  of  acquisition  and  the  presentation  of  the  petition  {North. 
Herit.  Co.,  1888, 16  E.  100,  and  18  E.  (H.  L.)  37).  Where  the  trustee  has  been 
discharged,  the  creditors  may  obtain  a  new  one  appointed  for  the  purpose 
of  ingathering  and  distributing  new  estate,  by  a  petition  to  the  Court  of 
Session  in  either  Division  {Thomson,  1863,  2  M.  325;  Russell,  1867,  5 
M.  282  ;  North.  Herit.  Co.,  supra;  Drybrough,  1893,  20  E.  396). 


SEQUESTEATION  209 

6.  Government  Tay,  Pensions,  etc.— The  Bankruptcy  Act,  185G, 
s.  149,  provides  as  follows : — "  The  Lord  Ordinary  or  Sheriff  may  order 
such  portion  of  the  pay,  half -pay,  salary,  emolument,  or  pension  of  any 
bankrupt  as,  on  conmiunication  from  the  Lord  Ordinary  or  Sheriff  to  tlie 
Secretary  of  War,  or  the  Lords  Commissioners  of  the  Admiralty,  or  the 
Commissioners  of  the  Customs  or  Excise,  or  the  chief  officers  of  the  depart- 
ment to  which  such  bankrupt  may  belong  or  may  have  belonged,  or  under 
which  such  pay,  half-pay,  salary,  emolument,  or  pension  may  be  enjoyed  by 
such  bankrupt,  or  to  the  Court  of  Directors  of  the  East  India  Company, 
they  respectively  may,  under  their  hands,  or  under  the  hand  of  their 
respective  chief  secretary  or  other  chief  officer  for  the  time  being  consent 
to  in  writing,  to  be  paid  to  the  trustee,  in  order  that  the  sanie  may  be 
applied  in  payment  of  the  debts  of  such  bankrupt ;  ar.d  such  order  and 
consent  being  lodged  in  the  office  of  Her  Majesty's  I'aymaster-General,  or 
of  the  secretary  of  the  said  Court  of  Directors  or  of  any  other  officer  or 
persons  appointed  to  pay  or  paying  any  such  pay,  half-pay,  salary,  emolu- 
ment, or  pension,  such  portion  of  the  said  pay,  half -pay,  salary,  eniolument, 
or  pension  as  shall  be  specified  in  such  order  and  consent  shall  be  paid 
to  such  trustee  until  the  Lord  Ordinary  or  Sherilf  shall  make  order  to 
the  contrary."  A  salary  paid  Ijy  the  Treasury  does  not  fall  under  this 
section  {Latta,  1857,  19  D.  1107).  It  is  only  out  of  an  excess  beyond  a 
henejicium  competentice  that  a  payment  will  be  ordered  (Scott's  Tr.,  1885,  12 
K.  540).  The  procedure  is  for  the  trustee  to  present  a  petition  to  the  Lord 
Ordinary  or  Sheriff,  setting  forth  the  amount  of  the  salary,  etc.,  and  the 
general  position  of  the  sequestration,  and  craving  an  order  recommending 
the  head  of  the  particular  department  to  grant  a  consent  in  terms  of  the 
Act  for  payment  of  a  certain  portion  of  the  pay  to  the  trustee.  1"hc 
petition  must  be  intimated  to  the  bankrujtt,  and  the  judc;ment  thereon  is 
subject  to  appeal  (Scott's  Tr.,  1884,  12  11.  182,  and  1885',  12  II.  540). 

7.  Challenge  of  Alienations  and  PiiErEnENCES  by  the  Bankrupt. 

(a)  Alienations  and  Fixjyrcnccs  Icforc  Sequestration. — Prior  to  the  Bankruptcy 
Act,  185G,  a  trustee  in  bankruptcy  had  no  statutory  title  to  challenn-e 
alienations  or  preferences  granted  by  the  bankrupt  during  insolvency  or 
notour  bankruptcy.  In  practice,  however,  Iiis  title  came  to  be  reco'i'niscd 
in  cases  where  he  represented  the  class  of  creditors  entitled  to  make  the 
challenge  in  the  y)articular  case.  By  the  11th  section  of  the  1850  Act  it  is 
provided  that  the  trustee  shall  be  entitled  to  set  aside  for  behoof  of  the 
general  body  of  creditors  all  alienations  by  an  insolvent  or  bankrupt  debtor 
which  are  voidable  by  statute  or  at  common  law,  and  in  doinf  so  shall  be 
entitled  to  the  benefit  of  any  presumption  which  would  have  been  com- 
petent to  any  creditor. 

A  cliallenge  by  the  trustee  differs  from  one  at  the  instance  of  an 
individual  creditor  in  that  the  trustee  is  entitled  to  obtain  a  decree  not 
merely  setting  aside  the  alienation  or  preference,  Imt  also  for  payment  or 
delivery  to  him  of  the  funds  or  assets  foiniing  the  sul)iect  thereof  (  cc 
Cook,  1 89G,  2:;  \l  925). 

All  such  alienations  and  preferences  may  be  set  aside  either  by  wav  of 
action  or  exception  05.  A.,  1856,  s.  10;  see  Dickson,  1866,  4  M.  797; 
Markcnzir,  1868,  6  AL  8:;:};  Cook,  svprct).  See  BANKuriTCY,  «/;/r,  vol.  ii.' 
pp.  20,  21 ;  Insolvency,  ante,  vol.  vii.  pp.  18,  19. 

(h)  Alienationshy  Bankrupt  after  Sequestration. — All  such  alienations  are 
null  and  void  (B.  A.,  1856,  s.  Ill);  "but  if  a  hond  fide  purchaser  is  in 
possession  of  moveable  ellW-ts  received  from  the  l)ankru]it  after  sequestra- 
tion, but  iti  ignorance  thereof,  and  when  ignorant  tlicreof  for  a  price  paid, 

S,  E.— VOL.  XI.  14 


210  SEQUESTEATION 

or  which  he  is  ready  to  pay,  he  shall  not  be  obliged  to  restore  the  effects  ; 
and  if  a  debtor,  in  ignorance  of  the  sequestration,  have  paid  his  debt  lond 
fide  to  the  bankrupt,  he  shall  not  be  obliged  to  pay  it  a  second  time  to  the 
trustee ;  and  if  the  possessor  of  any  bill  or  promissory  note,  which  _  is 
payable  by  the  bankrupt,  with  recourse  on  other  parties,  or  of  a  security 
for  a  debt  due  by  the  bankrupt,  shall  have  received  payment  of  his  debt 
from  the  bankrupt  in  ignorance  of  the  sequestration  and  given  up  such 
bill,  promissory  note,  or  security  to  the  bankrupt,  such  person  shall  not  be 
liable  to  repay  to  the  trustee  the  amount  so  received,  imless  the  trustee 
shall  replace  him  in  tlie  situation  in  which  he  stood,  or  reimbm-se  him 
for  any  loss  or  damage"  (see  Pearson,  1876,  3  K.  800). 

Creditors  wdio  receive  a  voluntary  preference  from  the  bankrupt  out  of 
estate  abroad  must  communicate  it  as  a  condition  of  claiming  in  the 
sequestration,  and,  if  they  claim,  are  liable  ex  reconventione  to  be  sued  by 
the  trustee  for  its  recovery  (Bell,  Com.  ii.  573;  Orel,  1847,  9  D.  541; 
Bctrr,  1879,  7  R.  247  ;  Stewart,  1851,  13  D.  1337). 

8.  Eights  of  Action,  generally,  vest  in  the  trustee. — Where  an  action 
is  depending  at  the  time  of  sequestration,  it  will  be  sisted  until  intimation 
is  made  to  him,  and  he  may  sist  himself  and  carry  it  on  {HaUoiodl,  1843, 
5  D.  655;  Gallic,  1840,  2  D.  445).  Where  he  declines  to  sist  himself, 
reserving  his  right  to  litigate  the  question,  decree  against  the  bankrupt  in 
the  action  will  not  generally  be  res  judicata  against  the  trustee  (Shepjjerd, 
1829,  7  S.  680).  By  taking  up  the  action,  the  trustee  incurs  liability  for 
the  whole  expenses,  past  and  subsequent  (Torlet,  1849,  11  D.  694),  but  this 
does  not  follow  when  he  sists  himself  for  purposes  of  inquiry  merely  {Muir, 
1843,  5  D.  579). 

The  trustee's  right  of  action  extends  to  actions  of  damages  for  personal 
injury  to  the  bankrupt.  Thus  where  a  bankrupt,  discharged  on  dividend, 
brought  an  action  during  the  subsistence  of  the  sequestration  for  reparation 
for  injury  to  credit,  and  solatium  for  injury  to  reputation  and  feelings, 
arising  out  of  conduct  prior  to  the  sequestration,  the  trustee  was  held 
entitled  to  sist  himself  in  room  of  the  bankrupt  even  quoad  the  claim  for 
solatium  (Thorn,  1857,  19  D.  721  ;  see  Auld,  1874,  2  E.  191;  Bern,  1893, 
20  E.  859).  But  it  is  otherwise  when  the  injury  is  one  solely  affecting  the 
bankrupt's  character  (Thorn,  supra,  per  Ld.  J.-Cl.  Hope;  Jackson,  1875, 
3  E.  130  ;  Rogers,  12  CI.  &  Fin.  700),  although  damages  recovered  in  an 
action  at  the  bankrupt's  instance  in  such  a  case  will  fall  to  the  trustee 
(Jachson,  suijra).  And  purely  personal  actions,  such  as  an  action  of  divorce, 
or  declarator  of  marriage,  although  attended  with  patrimonial  consequences, 
can  be  insisted  in  by  the  bankrupt  only  (Goudy  on  Banhr^iptcy,  379 ; 
Mackay,  Practice,  151 ;  Greenhill,  1822, 1  8.  275 ;  Beckham,  2  H.  of  L.  Ca.  579  ; 
see  Green,  1896,  24  E.  211). 

9.  Contracts. — The  trustee  is  not  bound  to  take  up  existing 
contracts  of  the  bankrupt.  Thus  it  is  for  his  consideration  whether  he 
will  take  up  a  feu  or  a  lease  or  shares  or  other  onerous  or  speculative 
contracts  (Anderson,  1875,  2  E.  355 ;  Bell,  Com.,  5th  ed.,  ii.  413 ; 
Ciithill,  21  Nov.  1818,  F.  C. ;  Kirkland,  1831,  9  S.  596,  6  W.  &  S.  340  ; 
Kirkland,  1838,  16  S.  860).  "Where  the  element  of  delectus  ijcrsonce  does 
not  enter  a  contract,  it  cannot  be  doubted  that  the  creditors  of  the  insolvent 
party  have  it  in  their  power  to  adopt  such  contract  and  to  proceed  with  it 
notwithstanding  the  bankruptcy.  And  there  can  be  as  little  doubt  that 
they  have  it  in  their  power  to  repudiate  any  contract,  whether  it  involves 
the  element  of  delectus  i^crsonm  or  not"  (per  Ld.  Ormidale  in  Anderson, 
stqjrct). 


SEQUESTEATION  211 

The  trustee's  election  must  be  declared  within  a  reasonable  time 
(Anderson,  supra).  If  he  elects  to  adopt  a  contract  he  cannot  thereafter 
resile,  and  he  is  liable  personally  for  its  performance  (Bell  Com  ii  3'^0  • 
Jeffreij,  1821,  1  S.  103,  2  Sh.  App.  349;  Davidson,  1826,  5  's.'lil; 
MacKessack,  1886,  13  E.  445),  with  relief  against  the  estate.  Adoption 
is  a  question  of  circumstances,  and  may  be  express  or  be  implied  from 
conduct  (see  Stead,  1835,  13  S.  280;  Min.  Herit.  Secur.  Co.,  1886,  13  E. 
427 ;  and  see  infra  cases  as  to  leases).  Where  a  trustee  stated  that  he 
would  "  adopt  as  assets  in  the  sequestration  "  certain  properties  subject  to 
bonds,  and  agreed  to  pay  arrears  of  interest  on  condition  of  the  bondholders 
making  advances  for  completing  the  property  and  letting  the  loans  lie  in 
hope  of  a  better  market  for  the  benefit  of  all  parties,  he  was  held  not  to 
have  incurred  liability  for  the  loans  {Edin.  Herit.  Secur.  Co.,  supra). 

"Where  the  trustee  elects  not  to  adopt  a  contract,  the  other  party  is 
entitled  to  be  ranked  on  the  estate  for  damages  for  non-implement  (see 
Guthill,  21  Nov.  1818,  F.  C. ;  KirUand,  1831,  9  S.  596,  6  W.  &  S.  340 ; 
KirUand,  1838, 16  S.  860  ;  Stead,  1835, 13  S.  280 ;  Bidoulac,  1889, 17  E.  144). 
Sequestration,  however,  does  not  per  se  terminate  a  contract  quoad  the 
bankrupt  (see  as  to  leases.  Bell,  Com.  i.  76 ;  Eankine  on  Leases,  558). 

Entering  into  possession  of  a  feu  and  drawing  the  rents  does  not  in 
itself  subject  the  trustee  to  greater  liability  than  as  an  intromitter  {Mitchell, 
1834,  12 'S.  322;  see  Balfour,  1817,  Hume,  771 ;  Douglas,  1881,  8  E.  470). 

Where  the  trustee  adopts  a  lease,  he  becomes  personally  liable  for  all 
the  prestations  {Dundas,  1857,  20  D.  225;  Eankine  on  Leases,  562; 
Moncreiffe,  1896,  24  E.  47),  including  arrears  of  rent  {M'Lean,  1850,  13  D. 
90).  It  is  not  enough  to  prove  adoption  that  the  trustee  has  occupied  the 
premises.  Thus  where  a  trustee  entered  on  and  refused  to  give  up 
possession  of  manufacturmg  premises  until  the  issue  of  an  action  in 
which  he  unsuccessfully  claimed  the  great  machinery,  and  during  this 
period  refused  to  concur  in  joint  measures  for  letting  the  x^remises,  but 
did  not  carry  on  any  work  therein,  it  was  held  that  he  had  not  adopted 
the  lease,  but  that  he  was  liable  in  damages  for  wrongous  retention  of 
possession  {Stead,  1835,  13  S.  280).  And  liability  for  arrears  of  rent 
was  not  inferred  from  a  trustee  concurring  with  the  bankrupt  in  opposing 
the  landlord's  resumption  of  possession  under  a  lease  whicli  by  its  terms 
became  void  upon  the  tenant's  bankruptcy  {Richardson,  1835,  13  S.  972). 
Agam,  where  a  lease  was  to  become  void  at  the  term  of  Martinmas  after 
the  tenant's  bankruptcy,  and,  after  his  sequestration,  the  trustee  possessed 
the  farm  for  three  montlis  prior  to  Martinmas,  directing  and  controlling 
all  farm  operations,  keeping  a  large  number  of  milch  cows,  sub-letting 
some  pasture,  and  generally  ingathering  the  crops,  it  was  held  tliat  he  had 
only  done  his  statutory  duty  in  realising  the  bankrupt's  property,  and  had 
not  adopted  the  lease  {M'Gavin,  1891,  18  E.  576).  A  similar  decision  was 
given  where  atrustee,instead  of  himself  entering  on  tlic  farm  andreahsing.sold 
and  transferred  his  rights  to  the  bankrupt's  wife  {Imrie's  Tr.,  1897,  25  E. 
15).  In  another  recent  case,  where  a  tenant  assigned  his  lease  to  a  trustee 
for  creditors,  wlio  obtained  the  landlord's  consent  to  the  assignation,  and 
possessed  the  farm,  the  trustee  was  hekl  liable  for  the  current  year's  rent, 
although  the  landlord,  in  giving  his  consent,  liad  acceded  to  the  trust 
deed,  and  accepted  a  renunciation  of  the  lease  at  the  ensuing  term  of 
Martinmas  {Moncreiffe,  1890,  24  E.  47).  Where  tlie  trustee  disclaims  a 
lease,  tlic  landlord  is  entitled  to  rank  on  the  estate  for  damages  {Ivinloch, 
1836, 14  S.  905;  see  L'idoulac,  1889, 17  E.  144).  Where,  on  the  other  hand, 
the  landlord  avails  himself  of  an  option  to  hold  the  lease  at  an  end  on 


212  SEQUESTRATION 

the  occurrence  of  bankruptcy,  he  cannot  claim  damages  (Waller's  Trs.y 
1886,  13  E.  1198;  Bidoulac,  1889,  17  R  144 ;  Tait,  1897,  24  R  1128). 

Contracts  of  Sale.  —  Sec.  1  of  the  Mercantile  Law  Amendment 
(Scotland)  Act,  1856,  as  to  goods  sold  but  undelivered,  has  been  repealed 
by  the  Sale  of  Goods  Act,  1893  (56  &  57  Vict.  c.  71,  s.  60).  The  trustee's 
right  to  goods  in  the  bankrupt's  possession  which  have  been  the  subject  of 
a  contract  of  sale  by  him,  now  depends  on  the  rules  of  the  last-mentioned 
Act  regulating  the  passing  of  the  property  in  goods  sold  and  the  rights  of 
an  unpaid  vendor.  As  the  Act  has  codified  the  law  on  the  subject, 
reference  is  made  to  it  hrevitatis  causa. 

The  trustee  may  exercise  a  right  of  stoppage  m  transitii  competent  to 
the  bankrupt.  (For  rules  on  the  subject,  see  56  &  57  Vict.  c.  71,  ss.  44  ct  scq.). 
Goods  rejected  by  an  insolvent  buyer  prior  to  his  sequestration  may  be 
recovered  from  his  trustee  by  the  seller  (Bell,  Cojii.  i.  253  ;  Brake,  1807, 
Hume,  691  ;  Inglis,  1842,  4  D.  478 ;  BooJcer,  1870,  9  M.  314).  Goods  of 
which  an  insolvent  buyer  has  taken  delivery  may  be  recovered  from  his 
trustee  if  the  circumstances  of  the  buyer  were  such  as  to  make  the  taking 
of  delivery  a  fraud  on  the  seller,  as  where  the  buyer  has  already  announced 
an  intention  cecleo^e  foro  (Carnegie,  1815,  Hume,  704 ;  Schuurmans,  1828, 
6  S.  1110;  Watt,  1846,  8  D.  529;  Clarke,  1885,  12  R  1035;  Bell,  Com.  i. 
264;  Richmond,  1854,  16  D.  403,  per  Ld.  J.-Cl.  Hope;  Booker,  supra,  per 
Ld.  Kinloch). 

10.  Propekty  of  Bankrupt's  Wife. — The  trustee  is,  of  course, 
entitled  to  take  all  property  belonging  to  the  husband  Jure  mariti,  sub- 
ject to  the  provision  of  the  Conjugal  Pdghts  Amendment  Act,  1861,  s.  16, 
entitling  the  wife  to  a  reasonable  provision  for  support  and  maintenance 
out  of  property  of  which  the  husband  or  his  trustee  has  not  obtained 
possession  x^rior  to  the  wife's  claim  being  made  (see  Clark,  1881,  8  E.  723 ; 
Beid,  1878,  5  R  630;  Somncr,  1871,  9  M.  594;  Jack,  1878,  5  E.  624; 
Miller,  1871,  10  M.  107,  per.  Ld.  Mackenzie,  Eraser,  H.  &  W.  i.  833). 

The  trustee  is  entitled  to  claim  all  property  forming  the  subject  of 
donations  by  the  husband  to  the  wife  stante  matrimonio. 

The  exemption  of  a  wife's  earnings  in  any  employment,  occupation,  or 
trade  carried  on  in  her  own  name,  or  money  or  property  acquired  by  her 
through  the  exercise  of  any  literary  or  artistic  skill  (40  &  41  Vict.  c.  29,  s.  3), 
does  not  extend  to  stock  in  trade  or  implements  by  which  such  earnings 
are  made  (Ferguson,  1883,  11  E.  261). 

Any  money  or  other  estate  which,  by  virtue  of  the  Married  Women's 
Property  Act,  1881  (44  &  45  Vict.  c.  21,  s.  1  (4)),  belongs  to  a  wife  as 
separate  estate  and  has  been  lent  or  intrusted  to  her  husband  or  immixed 
with  his  funds,  falls  to  be  treated  as  assets  of  the  husband's  estate  in 
bankruptcy,  under  reservation  of  the  wife's  claim  to  a  dividend  as  a 
creditor  for  the  value  of  such  money  or  other  estate  after,  but  not  before, 
the  claims  of  the  other  creditors  of  the  husband  for  valuable  consideration 
in  money,  or  money's  worth,  have  been  satisfied  (see  Anderson,  1892,  19  E. 
684;  National  Bank  of  Scotland,  1893,  21  E.  4;  Adam,  1894,  21  R  676). 
Where  furniture  belonging  to  a  wife  before  marriage  was  taken  by  her  to 
the  house  in  which  she  lived  with  her  husband  after  marriage,  it  was  held 
not  to  have  been  immixed  with  his  estate  or  lent  or  intrusted  to  hira 
(Adam,  supra).  The  trustee  does  not  take  furniture  which  belonged  to  a 
wife  before  marriage  (the  marriage  being  prior  to  1881)  and  was  settled  on 
her  by  antenuptial  marriage  contract,  or  w^hich  before  or  during  the 
marriage  has  been  settled  on  the  wife  by  a  third  party,  exclusive  of  the 
jus  mariti  (Eraser,  R.  &  W.  i.  790 ;  Annand,  1774,  Mor.  5844,  and  2  Pat. 


SEQUESTEATION  213 

App.  3G9 ;  Younj,  1855,  17  D.  998).  Prior  to  the  Act  of  1881  it  \Ya3 
decided  that  furniture  of  the  husband  settled  on  the  wife  by  antenuptial 
marriage  contract,  and  remaining  in  the  husband's  house  after  the  marriage, 
fell  under  his  bankruptcy,  on  the  principle  of  reputed  ownership  {Shearer, 
1842,  5  D.  132;  Broicn,  1850,  13  1).  373;  see  CampMl,  1848,  10  D.  1280). 
It  has  been  questioned  whether  similar  decisions  would  be  given  now,  in 
view  of  the  change  of  presumption  from  possession  arising  from  the  Act  of 
1881  (see  Goudy  on  Banhruptcy,  311). 

11.  Property  held  by  the  Bankrupt  as  Trustee,  Factor,  etc. — 
Property  held  in  trust,  whether  heritable  or  moveable,  and  whether  held  on 
title  ex  facie  qualified  by  the  trust  or  ex  facie  absolute,  does  not  pass  to  the 
trustee,  not  being  property  of  the  bankrupt  in  the  sense  of  the  Bankruptcy 
Act  {HeritaUc  Reversy.  Co.,  1891, 18  E.  116G;  rev.  1892, 19  K.  (H.  L.)  43,  supra, 
p.  204).  This  rule  assumes  that  the  trust  property  is  capable  of  identification. 
AVhere  it  consists  of  money  which  the  bankrupt  has  immixed  with  his  own, 
the  claim  against  him  resolves  itself  into  a  claim  of  debt,  and  the  creditor 
in  the  claim  can  only  receive  a  ranking  on  the  sequestrated  estate  along 
with  other  creditors  (Bell,  Com.  i.  275-279  ;  see  Lech,  1855,  17  D.  1075  ; 
Cochrane,  1857, 19  D.  1019 ;  Parke,  1  East,  544.)  But  if  the  funds,  although 
immixed  to  some  extent,  are  capable  of  separation,  the  creditor  is  entitled 
to  follow  and  claim  them,  as,  e.g.,  funds  paid  by  the  bankrupt  into  his  bank 
account,  but  not  drawn  out  {Pcnnell,  4  De  G.,  M.  &  G.  372 ;  Knatchlmll, 
13  Cli.  Uiv.  G96).  Property  directly  acquired  by  the  conversion  of  trust 
property  may  be  claimed  as  surrogatum  {Taylor,  3  M.  &  S.  579 ;  Mags,  of 
Edinburgh,  1881,  8  P.  (H.  L.)  140). 

The  same  principles  apply  to  other  cases  where  the  bankrupt  holds 
property  in  representative  capacities,  as  where  he  is  an  executor,  factor,  or 
agent  (Bell,  Com.  i.  287  ;  Taylor,  supra  ;  Tooke,  5  T.  E.  215).  Where  a  law 
agent  paid  into  his  bank  account  a  sum  sent  to  him  by  a  client  to  be 
invested  on  a  specific  heritable  security,  and  it  remained  undrawn  at  the 
date  of  his  sequestration,  the  Court  granted  a  petition,  under  sec.  104  of  the 
1856  Act,  to  have  the  money  struck  out  of  the  sequestration  {Macadam, 
1872,  11  M.  33). 

The  rule  is  also  applied  to  money  or  property  placed  in  tlic  bankrupt's 
hands  and  specifically  appropriated  towards  a  particular  purpose  (Bell, 
Com.  i.  277;  see  Macadam,  supra;  ex  parte  Prcscott,  3  I).  &  C.  218). 
Specific  remittances  or  consignments  made  by  the  bankrupt  to  an  agent  for 
belioof  of  a  third  party,  who  has  given  value  to  the  bankrupt  therefor,  are 
held  specially  appropriated  to  tlie  tliird  party  (7/rzc?-/_y,  1843,  5  D.  1100, 
5  ]k'll's  App.  1 ;  ex  parte  Imhert,  1  I).  &  J.  152  ;  cf.  Pearson,  1842,  4  D.  1509). 
But  directions  by  the  bankrujiL  Id  an  agent  to  pay  to  a  creditor  the 
proceeds  of  goods  in  Ids  hands,  witliout  communication  of  such  directions  to 
the  creditor,  will  not  give  tlie  latter  any  preference  if  the  sequestration 
occur  wliile  the  goods  are  still  in  the  agent's  hands  {Scott,  3  IMcr.  052). 

Consignation  in  neutral  liands  to  await  the  result  df  an  action,  divests 
the  consigner  and  exfludes  his  trustee  if  the  other  party  be  uUimatcly 
successful  {Gordon,  1838,  1  I '.  1  :  Stiven,  1891,  18  E.  422;  cf.  Haird,  Mor. 
7737). 

Wlierc  funds  were  lianded  l)y  a  l»ankrui)t  to  his  law  agent  before 
sequestration,  to  defray  tlie  expenses  of  his  defence  against  a  criminal 
charge,  the  tniHtec  was  licld  entitled  to  claim  lln'iii,  on  th(\  grouml  that 
the  mandate  fell  by  sequestration  {M'Krnzie,  1891,  21  It.  90-1). 

12,  Personal  Powers  ok  Bankrupt. — Powers  purely  personal,  whicli 
do   not    all'ect    tlic    sequestrated   estate,   remain    in    the  liankrupt   solely. 


214  SEQUESTEATION 


C/  ' 


Powers  which  are  incidental  to  the  sequestrated  estate  as  a  general  rule 
pass  to  the  trustee,  as,  e.g.,  power  of  revocation  of  donations  inter  virum  et 
uxorcm  (Ersk.  i.  6.  o2  ;  Kemp,  1842,  4  I).  558),  or  the  right  to  elect  between 
legitim  and  conventional  provisions,  falling  to  the  bankrupt  {Aikman,  Petr., 
1893,  30  S.  L.  E.  804 ;  Wishart,  3  S.  L.  T.  p.  42).  On  the  other  hand,  the 
Court,  in  an  action  at  the  instance  of  a  husband's  creditors,  refused  to 
interfere  with  the  election  of  the  bankrupt's  wife  between  her  legitim  and 
conventional  provisions  under  her  father's  will  of  slightly  larger  value, 
from  which  her  husband's  Jus  mariti  was  excluded  (Lowson,  1854,  16  D. 
1098). 

13.  Eeputed  Ownership. — There  are  no  provisions  in  the  Bankruptcy 
Acts  in  Scotland  regarding  property  in  the  reputed  ownership  of  the 
bankrupt  at  the  date  of  his  sequestration,  and  any  claim  by  a  trustee  to 
have  such  property  included  in  the  sequestrated  estate  must  rest  on  the 
common  law.  It  is  beyond  the  limits  of  the  present  article  to  deal  with 
the  subject  in  any  detail. 

Eeputed  ownership  is  said  by  Mr.  Bell  to  exist  "  when  the  appearance 
of  ownership  is  carried  beyond  the  purpose  or  occasion  of  a  legitimate  con- 
tract, and  powers  of  disposal  are  ostensibly  given  or  allowed  to  be  assumed  " 
{Prin.  ss.  1316,  1317),  the  requisites  being:  (1)  Possession,  (2)  repute  of 
ownership,  (3)  consent  of  the  true  owner  {ib. ;  Anderson,  1848,  11  D.  270). 
The  general  rule  is  that  where  the  possession  is  had  under  any  definite  con- 
tract, with  fixed  rights  and  incidents,  such  as  lease  or  loan,  the  plea  of 
reputed  ownership  will  be  excluded  (see  Orr,  1870,  8  M.  936 ;  Marston, 
1879,  6  E.  898 ;  Duncanson,  1881,  8  E.  563 ;  Pohertsons,  1882,  9  E.  772 ; 
Scott,  1889,  16  E.  504;  Liddell's  Tr.,  1893,  20  E.  989;  Pattison's  Tr.,  1893, 
20  E.  806;  3IitchcU's  Trs.,  1894,  21  E.  586;  Mitchell,  1894,  21  E.  600). 

The  only  example  in  the  decisions  for  many  years  of  the  application  of 
the  doctrine  is  to  be  found  in  the  case  of  Echnond,  1868,  7  M.  59.  In  that 
case  A.  sold  certain  sea-bathing  machines,  etc.,  forming  a  bathing  establish- 
ment, in  1847,  to  B.,  who  sold  them,  in  1849,  to  C.  A.,  who  remained  in 
uncontrolled  possession,  was  sequestrated,  and  was  discharged  in  1855,  but  his 
possession  was  not  interrupted,  and  continued  till  his  death  in  1867.  The 
property  was  held  to  be  carried  by  a  second  sequestration  of  A.'s  estates 
after  his  death  (see  Sim,  1862,  24  D.  1033). 

In  the  case  of  Rohcrtsons,  1882,  9  E.  772,  Ld.  J.-Cl.  Monereiff  said: 
"  The  doctrine  of  reputed  ownership  has  been  paid  little  attention  to  of  late 
years,  and  is  no  longer  of  much  importance."  The  doctrine  is,  however,  by 
no  means  obsolete.  In  the  case  of  31' Bain,  8  E.  (H.  L.)  106,  Ld.  Black- 
burn said :  "  It  is  perfectly  true,  I  think,  as  regards  the  law  of  Scotland,  that 
independent  of  bankruptcy,  and  before  there  is  bankruptcy  at  all,  where 
one  person  has  allowed  another  to  have  possession  of  goods  under  such 
circumstances,  and  in  such  a  way,  as  to  accredit  that  other  person  and 
entitle  him  to  sell  them,  or  to  acquire  credit  upon  them, — if  the  true  owner  has 
allowed  this  to  take  place, — he  should  be  responsible  for  the  consequences,  and 
it  would  be  unjust  for  him  to  take  away  the  goods  to  the  damage  of  those  who 
may,  in  consequence  of  his  having  accredited  the  other  person,  have  acquired 
a  riglit  over  them,  though  before  there  has  been  bankruptcy."  In  the  same 
case  Ld.  Watson  said  :  "  I  think  it  is  sufficiently  clear  that  where  a  pur- 
chaser permits  the  seller  to  retain  the  goods  and  to  deal  with  them  as  if 
they  were  his  own,  and  as  if  no  sale  of  them  liad  actually  taken  place,  he 
cannot  have  any  claim  to  have  those  goods  delivered  to  him,  not  as  in  a 
question  with  the  seller  of  the  goods,  but  as  in  a  question  with  onerous 
creditors  of  the  seller." 


SEQUESTEATIOX  215 


In  considering  questions  of  this  kind  it  must  he  kept  in  view  that,  in 
cases  of  sale,  delivery  is  no  longer  requisite  to  the  passing  of  the  pro- 
perty in  goods  sold  (Sale  of  Goods  Act,  1893,  56  &  57  Vict.  c.  71),  and  thus, 
in  the  absence  of  any  external  sign  of  change  of  ownership,  there  may  now 
be  more  room  for  the  application  of  the  principle  of  reputed  ownership 
where  goods  of  a  buyer  remain  in  the  seller's  possession.  In  England, 
where  delivery  has  never  been  requisite  to  the  passing  of  the  property,  the 
Bankruptcy  Statutes  have  for  long  contained  provisions  gi^ang  the  creditors 
on  bankrupt  estates  rights  over  property  in  the  order  and  disposition  of  the 
debtor  before  his  bankruptcy.     See  Reputed  Ownershijx 

XI.  ]\Ianagemext  and  Eealisation  of  Sequestrated  Estate. 

1.  Generallv. — Second  Meeting  of  Creditors  .         .         .     215 

2.  Sale  of  Estate 217 

(a)  Herital)le  Estate 218 

lb)  Moveable  Estate 219 

(c)  Outstanding  Estate 219 

1.  Generally.— At  the  meeting  for  the  election  of  trustee  the  bank- 
rupt must  submit  a  state  of  his  affairs  as  already  mentioned  {rich  ante, 
p.  191).  The  trustee,  as  soon  as  may  be  after  his  appointment,  must 
take  possession  of  the  bankrupt's  estate  and  effects,  and  of  his  title 
deeds,  books,  bills,  vouchers,  and  other  papers,  and  also  make  an  in- 
ventory of  such  estate  and  effects,  and  a  valuation  showing  the  estimated 
value  and  annual  revenue  thereof,  and  send  copies  thereof  to  the  Accountant 
(B.  A.,  1S5G,  s.  80). 

The  trustee  must  "  manage,  realise,  and  recover  the  estate  belonging  to  the 
bankrupt,  wherever  situated,  and  convert  the  same  into  money  accordnig  to 
the  directions  given  by  the  creditors  at  any  meeting ;  and  if  no  such  direc- 
tions are  given,  he  shall  do  so  with  the  advice  of  the  commissioners"  {ih.,. 

s.  82).  .      . 

Second  Meeting  of  Creditors.— Aher  the  bankrupt's  exannnation,  the 
creditors  hold  their  second  general  meeting,  for  the  purpose  of  considermg 
the  x>osition  of  the  estate  and  giving  directions  as  to  its  administration. 
The  meeting  must,  in  the  case  of  living  debtors,  be  held  not  sooner  than 
seven  nor  later  than  fourteen  days  after  the  day  appointed  for  the  bank- 
rupt's examination  (B.  A.,  1856,  s.  87  ;  as  to  adjournment,  see  Walker,  1861,. 
24  D.  155 ;  MKellar,  1861,  23  D.  1260,  per  Ld.  J.-Cl.  Inglis).  In  the  case  of 
deceased  debtors  the  meeting  is  held  not  later  than  fourteen  days  after 
advertisement  by  the  trustee  (s.  87),  which  in  practice  is  made  on  the  lapse 
of  a  sliort  interval  after  the  date  of  confirmation.  Prior  to  the  second 
meeting  the  trustee  must  prepare  a  report  and  estimate  as  to  the 
bankrupt's  estate,  and  submit  it  at  the  meeting  and  give  all  explanations 
relative  thereto;  and  tlie  creditors  assem])led  at  the  meeting,  or  at  any 
other  meeting,  may  give  directions  for  the  recovery,  management,  and  dis- 
posal of  the  estate  {ik,  s.  06).  The  creditors  act  by  the  majority  ni  value 
of  those  present  and  entitled  to  vote  {ih.,  s.  101).  There  is  nothing  to 
prevent  a  creditor  voting  on  a  question  on  which  he  has  a  direct  personal 
interest;  and  a  secured  creditor  is  entitled,  in  any  question  affecting  the 
subject  of  his  security,  to  vote  \\\m\  tlie  full  amount  of  his  debt  {ih.,  s.  59). 
The  Court  will  not  entertain  an  ai.i)lication  for  directions  on  the  manage- 
ment or  realisation  of  the  estate  {Low,  1836,  15  S.  200).  The  trustee  ^and 
commissioners  cannot  alienate  any  asset  of  the  estate  gratuitously  {Cale- 
donian liivy.  Co.,  1875,  2  E.  917).     The  bankrupt  must  at  all  times  give 


216  SEQUESTEATIOX 

every  information  and  assistance  to  the  trustee  ;  and  if  he  fail  to  do  so,  or  to 
grant  any  deed  for  the  recovery  or  disposal  of  his  estate,  the  trustee  may 
apply  to  the  Sheriff  to  compel  him,  under  penalty  of  imprisonment  and  for- 
feiture of  the  benefit  of  the  Act  (ib.,  s.  81).  An  allowance  may  be  made 
to  the  bankrupt  for  his  services  {ih.,  s.  78) ;  but  he  cannot  be  employed  in 
such  a  way  as  to  supersede  the  statutory  management  of  the  trustee  {Turner, 
1822,  1  S.  444). 

Eesolutions  by  the  creditors  as  to  the  disposal  of  the  estate  may  be 
appealed  either  to  the  Lord  Ordinary  or  the  Sheriff  within  fourteen  days 
{ib.,  s.  169 ;  as  to  appeal  from  Sheriff  or  Lord  Ordinary,  see  sees.  170,  171). 
The  Lord  Ordinary  or  Sheriff  may,  if  he  thinks  fit,  order  a  new  meeting  to 
be  held  to  reconsider  the  resolution  appealed  against  {ib.,  s.  169).  Any 
creditor  may  appeal.  The  bankrupt  would  also  seem  to  have  a  title  (Bell, 
Com.,  5th  ed.,  412;  see  Pentland,  1827,  5  S.  825;  Burt,  1863,  1  M.  382), 
but  probably  not  the  trustee  (Goudy  on  Bankru2Jtcy,  314 ;  see  Haldanc, 
1830,  8  S.  453  ;  JVitham,  1884,  UK.  776).  The  right  of  appeal  may  be 
waived  by  actings  {Kerr,  1849,  11  1).  691).  The  Court  will  rarely  interfere 
with  the  discretion  of  the  creditors  in  questions  of  mere  expediency,  as  to 
which  they  are  the  proper  judges  of  tlieir  own  interests  {City  of  Glasgoio  Bank, 
1863,  2  M.  142 ;  Wclclon,  1879,  7  E.  235  ;  Bell,  Com.,  5th  ed.,  ii.  411,  412). 
Eesolutions  may  be  appealed  on  the  ground  that  they  violate  or  are  incon- 
sistent with  the  intentions  of  the  Bankruptcy  Acts  (see  Turner,  1822,  1  S. 
444;  Kirklcmd,  1838,  16  S.  860),  as,  e.g.,  a  resolution  to  abandon  a  claim  in 
face  of  an  offer  to  purchase  it  {M'Kay,  1866,  4  M.  333),  or  to  carry  on  a 
risky  or  speculative  business  or  contract  {Kirkland,  supra;  Anderson,  1875, 
2  E.  355). 

The  trustee  must  lodge  all  money  which  he  receives  in  such  bank  as  the 
majority  of  the  creditors  in  number  and  value  at  any  general  meeting  shall 
appoint,  and  failing  such  appointment,  in  any  joint-stock  bank  of  issue  in 
Scotland  (provided  that  the  bank  be  not  one  in  which  the  trustee  is  acting 
partner,  manager,  or  cashier) ;  and  the  money  must  be  lodged  in  the  name  of 
the  trustee  in  his  official  character  under  the  Bankruptcy  Act,  at  the  highest 
rate  of  interest  which  can  be  procured  for  the  same ;  and  such  bank  must, 
once  yearly  at  least,  balance  such  account  and  accumulate  the  interest  with 
the  principal  sum,  so  that  both  shall  tliereafter  bear  interest  as  principal ; 
and  if  such  bank  fail  to  do  so,  it  is  lialjle  to  account  as  if  the  interest  had 
been  so  accumulated  (B.  A.,  1856,  s.  82).  If  the  trustee  lodges  the  money 
in  his  name  as  an  individual,  and  not  qua  trustee,  he  will  be  liable  therefor 
should  the  bank  fail  (Bell,  Com.,  5th  ed.,  ii.  378).  If  the  trustee  keeps  in  his 
hands  any  sum  exceeding  £50  for  more  than  ten  days,  he  must  pay  interest 
to  the  creditors  at  the  rate  of  20  per  cent,  on  the  excess  for  such  time  as 
the  same  is  in  his  hands  beyond  ten  days  ;  and  unless  the  money  has  been  so 
kept  in  his  hands  from  innocent  causes,  the  trustee  falls  to  be  dismissed 
from  office  upon  petition  to  the  Lord  Ordinary  on  the  Bills  or  Sheriff'  by 
any  creditor,  and  has  no  claim  to  remuneration,  and  is  Hable  in  expenses 
(B.  A.,  1856,  s.  83).  Sums  erroneously  paid  away  by  the  trustee  in  bond 
fide  are  not  regarded  as  kept  in  his  hands  for  the  purposes  of  this  provision 
{Ferrier,  1835,  13  S.  1081 ;  jMabe?i,  1837,  15  S.  1087).  It  does  not  excuse 
the  trustee  that  he  has  acted  with  the  approval  of  the  commissioners  (see 
Black,  1824,  3  S.  261),  or  that  the  money  has  been  drawn  to  pay  dividends 
due  but  not  called  for  {Accountant  in  Bankruptcy,  1864,  2  M.  1293).  Where 
the  trustee  is  removed,  he  is  liable  in  penal  interest  up  to  the  date  of 
removal,  and  simple  interest  thereafter,  on  the  accumulated  sum  {Johnstone, 
1826,  4  S.  487).     The  provision  for  dismissal  is  imperative  {Accountant  in 


SEQUESTKATIOX  217 

Bankruptcy,  IS 67,  6  M.  158).  The  Court  may  dismiss  the  trustee  upon  a 
report  by  the  Accountant  of  Court  under  sec.  159  of  the  1856  Act  {ib.). 

The  trustee  must  keep  a  sederunt  book,  and  record  therein  all  minutes 
of  creditors  and  commissioners,  states  of  accounts,  reports,  and  all  the  pro- 
ceedings necessary  to  give  a  correct  view  of  the  management  of  the  estate  ; 
and  he  must  also  keep  regular  accounts  of  the  affairs  of  the  estate,  and 
transmit  to  the  Accountant  of  Court,  before  each  of  the  periods  assigned  for 
the  payment  of  a  dividend,  a  copy,  certified  by  himself,  of  such  accounts  in 
so  far  as  not  previously  transmitted,  such  copies  l:)eing  preserved  in  the 
office  of  the  Accountant ;  and  the  sederunt  book  and  the  accounts  must  be 
patent  to  the  commissioners  and  to  the  creditors  or  their  agents  at  all  times 
(B.  A.,  1856,  s.  84).  When  any  document,  however,  is  of  a  confidential 
nature  (such  as  an  opinion  of  comisel),  the  trustee  is  not  bound  to  insert  it 
in  the  sederunt  book,  or  to  exhibit  it  to  any  other  person  than  the  commis- 
sioners {ih.).  The  trustee  will  be  personally  responsible  for  loss  of  the 
sederunt  hook  {Wothcrspoon,  18-43,  6  D.  88;  see  Christie,  1827,  5  S.  219), 
and  irregularities  in  keeping  it  will  form  a  ground  of  complaint  against  him 
(see  Jnichdls,  1830,  9  8.  US;  Brown,  1848,  11  D.  338).  It  forms  p-m^ 
facie  evidence  of  the  matters  contained  in  it,  except  when  foimded  on  by 
the  trustee  in  his  favour  (see  Mansfield,  1835,  13  S.  721;  Hunter,  1822, 
3  Mur.  231). 

The  trustee  must  within  fourteen  days  after  the  31st  October  in  each 
year,  or  on  the  first  lawful  day  after  the  expiry  of  said  fourteen  days,  deliver, 
free  of  expense,  to  the  Sheriff  Clerk  a  return,  in  the  form  of  Schedule  (H) 
of  the  1856  Act,  giving  a  vidimus  of  the  sequestration,  failing  which  he  is 
liable,  on  the  application  of  any  creditor,  or  of  the  Accoimtant  of  Court,  to 
be  removed  from  office  or  censured,  and  to  be  subjected  to  expenses  (13.  A., 
1856,  s.  158 ;  see  Bichmond,  1854,  16  D.  546). 

Subject  to  any  directions  given  by  the  creditors  (B.  A.,  1856,  ss.  82,  96), 
the  trustee  may,  witli  the  consent  of  the  commissioners,  compound  and 
transact  and  refer  to  arbitration  any  ([uestions  which  may  arise  in  the 
course  of  the  sequestration  regarding  the  estate,  or  any  demand  or  claim 
made  thereon  ;  and  the  compromise,  transaction,  or  decree-arbitral  is  binding 
on  the  creditors  and  the  bankru})t  {ih.,  s.  176;  see  DalzcU,  1876,  4  II.  222; 
Douglas,  1831,  8  K.  470).  The  creditors  may  also  abandon  claims  by  the 
estate,  and  a  resolution  to  abandon  forms  a  bar  to  action  bv  the  trustee 
(Gray,  1850,  12  \).  684).  A  majority,  however,  cannot,  by  resolving  to 
abandon  a  claim  competent  to  them,  preclude  an  individual  creditor  who 
offers  to  prosecute  it  from  doing  so  (Siyrot,  1828,  6  S.  1083  ;  >S>'C«a',  1 832, 11 
S.  212;  MKay,  1866,  4  M.  333).  In  so  suing,  the  individual  creditor  pro- 
ceeds at  his  own  risk  ;  and,  (ui  the  other  hand,  sIkhiIiI  he  recover  more  than 
sufficient  to  ])ay  his  own  debt  in  full,  he  must  hand  over  the  surplus  to  the 
trustee  for  the  benefit  of  the  general  l)ody  of  creditors  {,'^prncr,  supra;  l^cll, 
Com.,  5tli  ed.,  ii.  415).  lie  is  entitled  to  the  use  of  the  trustee's  name  in 
suing,  on  finding  security  to  keep  the  trustee  and  the  sequestrated  estate 
indcmnis  {8prot,  supra).  Or  he  may  pnidi.isi'  the  cliiiin  I'mni  the  creditors 
and  sue  in  his  own  iimuio,  taking  from  the  trustee  an  assignation  to  his 
r\\:i}\i  {Sjmicr,  sujtra;  M  A'ay,  siijira).  An  offer  by  a  dissenting  creditor  to 
guarantee  the  expenses  of  an  action  will  not  entitle  him  to  have  a  com- 
promise opened  ii|.  {Mdr^lmll  &  Aitken,  1889,  Ki  II.  S95). 

2.  Sale  of  JvsI'ATK. — The  crcdiloi-s  may  resolve  to  sell  at  the  second  or 
any  subsequent  meeting,  failing  which  the  trustee  acts  in  the  matter  with 
advice  of  the  conimissicjners  (15.  A.,  1856,  ss.  96,  82).  Where  any  estate  is 
sold  publicly  by  virtue  of  the  Bankruptcy  Act,  it  is  lawful  for  any  creditor 


218  SEQUESTEATION 

(including  a  concurring  heritable  creditor,  Cruielcshanh,  1849,  11  D.  614)  to 
purchase  the  same,  but  the  trustee  or  commissioners  may  not  do  so  (B.  A., 
1856,  s.  120;  see  Broicn,  1848,  11  D.  338;  Whytcs  Tr.,  1851,  13  D.  679; 
Noble,  1876,  4  E.  77;  as  to  commissioner's  firm,  see  Whyte,  1890,  17  R. 
895).  The  law  agent  of  the  trustee  is  not  disabled  {Buthcrfurd,  1891, 
18  E.  1061).  A  sale  to  the  trustee  or  a  commissioner  is  voidable  at  the 
instance  of  the  bankrupt  or  any  creditor  (see  Broivn,  siqjra ;  Nolle,  siq^ra). 

(a)  Heritable  Estate. — Sec.  96  of  the  1856  Act  provides  that  "when  any 
part  of  the  estate  consists  of  land  or  other  heritable  property,  it  shall  be 
optional  to  the  creditors  to  determine  whether  the  trustee  is  to  bring  such 
property  to  judicial  sale,  or  to  dispose  thereof  by  voluntary  public  sale,  or 
by  private  sale." 

Judicial  sale,  i.e.  an  action  of  ranking  and  sale,  is  rarely  if  ever 
resorted  to. 

Bublic  voluntary  sale  is  sale  by  public  auction,  the  trustee  and  com- 
missioners fixing  the  manner  of  sale  and  the  upset  price  {ib.,  s.  114). 
Failing  a  sale,  the  property  may  be  re-exposed  at  a  reduced  upset.  The 
purchaser  receives  a  disposition  by  the  trustee  and  commissioner,  and  takes 
the  estate  free  from  all  securities  or  rights  postponed  to  or  ineffectual 
against  the  trustee.  Where  the  trustee  is  not  himself  infeft,  he  may, 
without  the  concurrence  of  the  bankrupt,  grant  conveyances  of  the  estate, 
with  such  procuratories,  precepts,  or  other  warrants  as  the  bankrupt  might 
competently  have  granted,  which  conveyances  are  as  effectual  to  the 
purchaser  as  if  granted  by  the  brnkrupt  with  the  concurrence  of  the 
trustee,  and  are  not  affected  by  any  inhibition  against  the  bankrupt  {ib., 
s.  105).  The  property  may  be  conveyed  subject  to  preferable  securities 
upon  it  (see  MLane,  1825,  4  S.  235 ;  Kirkland,  1824,  2  S.  534). 

Where  any  part  of  the  heritable  estate  is  subject  to  a  preferable  security 
conferring  powers  of  sale,  the  creditor  in  such  security  may  sell  at  his  own 
hand  in  terms  of  his  power,  notwithstanding  the  sequestration,  provided  he 
commences  proceedings  before  the  creditors  have  resolved  to  sell  by  judicial 
or  public  voluntary  sale,  and  does  not  unduly  delay  in  carrying  them  out 
(B.  A.,  1856,  ss.  112,  114);  and  the  trustee  may  concur  in  the  sale  for  the 
purpose  of  fortifying  the  title  {ib.,  s.  112).  The  trustee  may,  however, 
prevent  the  sale  if  he  can  qualify  substantial  injury  (see  Bcvcridge,  1829, 
7  S.  279;  Kerr,  1848,  11  D.  301).  The  trustee,  or  any  posterior  heritable 
creditor  preferable  to  him,  may,  by  petition  to  the  Lord  Ordinary  or  Sheriff, 
compel  the  selling  creditor  and  purchaser  to  account  for  any  reversion  of 
the  price  (B.  A.,  1856,  s.  112).  Where  the  creditors  resolve  to  sell  any  such 
estate  subject  to  a  security,  the  trustee  may  proceed  to  sell  without  inter- 
ference if  the  resolution  is  prior  to  proceedings  for  sale  by  the  secured 
creditor,  or  if  such  proceedings,  although  then  begun,  are  unduly  delayed 
{ib.,  s.  114).  There  is  no  authority  as  to  the  extent  of  such  proceedings, 
required  to  exclude  the  trustee.  The  heritable  creditor  may  concur  in  a 
sale  by  the  trustee.  The  trustee  in  this  case  sells  in  his  own  name,  but  the 
articles  of  roup  and  conveyance  are  executed  by  him  with  consent  of  the 
creditor  and  commissioners,  and  the  pdce  is  paid  by  the  purchaser  to 
the  parties  legally  entitled  thereto,  and  in  so  far  as  not  paid  at  the  time  of 
delivery  of  the  conveyance,  it  is  consigned  in  the  bank  in  which  the  money 
of  the  sequestrated  estate  is  deposited;  which  payment  or  consignation 
discharges  the  property  and  the  purchaser  from  the  security  in  question, 
whether  the  secured  debt  be  satisfied  or  not,  and  from  all  postponed 
securities  {ib.,  s.  113 ;  as  to  judicial  warrant  for  payment  of  price,  see  infra, 
and  ss.  116,  117). 


SEQUESTEATION  219 

Sale  of  heritable  property  by  tlie  trustee  by  private  bargain  is  com- 
petent with  concurrence  of  a  majority  of  the  creditors  in  number  and  value, 
and  of  the  heritable  creditors,  if  any,  and  of  the  Accountant  of  Court,  on 
such  terms  and  conditions  regarding  price  and  otherwise  as  the  trustee 
with  concurrence  of  these  parties  may  fix  {ih.,  s.  115;  see  Bolic,  1864, 
2  M.  788).  The  creditors'  consent  must  apparently  be  given  at  a  meeting 
{ih.,  s.  96  ;  as  to  computing  majority,  see  sec.  101  and  infra  "  The 
Creditors").  The  trustee  cannot  sell  at  his  own  hand  (see  Edbcrtson,  1857, 
19  D.  502). 

Where  the  trustee  sells  by  public  auction  or  private  bargain  (under 
sees.  113,  114,  or  115),  it  is  his  duty  to  make  up  a  scheme  of  ranking  and 
division  of  the  claims  of  the  heritable  creditors  and  other  creditors  (sucli 
as  inhibitors,  see  M'MiUan,  1879,  6  E.  601 ;  Callum,  1885,  12  E.  1137)  on 
the  price  of  the  property  sold ;  and  such  scheme  must  be  reported  by  him 
to  the  Lord  Ordinary  on  the  Bills  or  either  Division  of  the  Court  of 
Session,  and  the  judgment  thereon  is  a  warrant  for  payment  out  of  the 
price  against  the  purchaser  (B.  A.,  1856,  s.  116;  as  to  procedure,  see 
M Millan,  supra ;  Callum,  svpra).  It  is  competent  for  the  Lord  Ordinary 
or  the  Court,  on  application  by  the  trustee  or  any  creditor  interested,  with 
a  report  thereon  by  the  Accountant  of  Court  and  on  cause  shown,  to  grant 
warrant  for  payment  of  preferable  claims  out  of  the  price  of  the  estate  sold, 
or  to  authorise  an  interim  scheme  of  division  out  of  the  price,  which  scheme 
of  division  is  disposed  of  as  the  scheme  of  division  already  mentioned  {ib.y 
s.  117).  Where  a  trustee  sold  under  sec.  114,  it  was  held  that  he  had  a 
good  title  to  receive  payment  of  the  price  before  a  scheme  of  ranking  and 
division  had  been  made  up,  sucli  papuents,  liowever,  not  affecting  the 
claims  of  secured  creditors  over  the  property  {Callum,  suiira). 

A  heritable  creditor  not  concurring  in  a  sale  does  not  seem  to  be  liable 
for  any  share  of  the  expenses  of  the  sale,  unless  directly  beneficial  to  him^ 
or  of  the  expenses  of  the  sequestration  (see  Goudy  on  Banh'uptcy ,  322; 
Kinnear  on  Banhruptr.y,  138 ;  M'Lanc,  1825,  4  S.  235 ;  Glohe  Insur.  Co., 
1839,  1  D.  605  ;  Bell,  Com.,  5th  ed.,  ii.  422-425). 

{h)  Moveable  Estate. — The  Bankruptcy  Act  contains  no  provision  as  to 
the  mode  of  selling;  tlie  moveable  estate.  I'rivate  sale  of  book  dcJjts  has 
been  held  incompetent,  but  rather  on  the  ground  that  such  debts  should  bo 
recovered  and  not  sold  (Crichfon,  1833,  11  S.  781;  Rohertson,  1857,  19  D. 
502).  It  is  understood  that  in  practice  moveable  assets  of  the  estate  are 
very  commonly  sold  by  private  bargain. 

(c)  Outstfindinfj  Estate. — If,  on  tlie  lapse  of  twelve  montlis  from  the 
date  of  the  deliverance  actually  awarding  sequestration,  it  appears  to  the 
trustee  and  commissioners  expedient  to  sell  the  heritable  or  moveable 
estates  not  disposed  of,  and  any  interest  which  the  creditors  have  in  the 
outstanding  debts  and  consigned  dividends,  they  must  fix  a  day  for  holding 
a  meeting  of  the  creditors  to  take  the  same  into  consideration ;  and  the 
trustee,  besides  advertising  the  same  in  the  Gazette,  must,  fourteen  days 
before  the  day  appointed,  send  liy  ]iost  to  each  creditor  claiming  on  the 
estate  a  notice  of  the  time  and  ])la('e  of  the  meeting,  with  a  valuatinu  of  the 
estates  and  of  the  outstanding  debts  and  the  consigned  dividends;  and  if 
three-fouiths  in  value  of  the  creditors  assembled  at  the  meeting  decide  in 
favour  of  a  sale  in  whole  or  in  lots,  the  trustee  shall  cause  the  estates, 
debts,  and  dividends  to  be  sold  by  auction,  after  notice  thereof  pidilished  at 
least  one  month  ]irevions  to  the  sale,  once  in  the  Gazette  aiul  in  such  other 
news])apers  as  the  creditors  at  the  meeting  shall  appoint  (B.  A.,  1856, 
8.  136). 


220 


SEQUESTRATION 


XII.  Eanking  of  Claims  and  PaYxMENT  of  Dividends. 


1. 

2. 
3. 


Divisible  Fund    . 

Proof  of  Claims  for  Ranking 

Special  Eules  of  Banking    . 


(a) 
(b) 

(d) 
(e) 


Interest  and  Discount 
Secured  Creditors 
Privileged  Creditors    . 


Contingent 

Creditors 

Inhibitions 


and  Annuity 


220 
220 
221 
221 
221 
222 

222 
222 


(/)  Double      Ranking  —  Cau- 
tioners and  Co-obligants  .  222 
(7)  Partial  Payments         .         .  224 

4.  Adjudication  on  Claims        .         .  224 

5.  Appeal  against  Trustee's  Deliver- 

ances        .....  226 

6.  Payment  of  Dividends        .         .  227 

7.  Unclaimed  Dividends  .         .  227 


1.  Divisible  Fl'nd. — The  proceeds  of  the  sequestrated  estate  when 
realised,  and  after  deduction  of  (1)  the  expenses  incurred  by  the  petitioning 
or  concurring  creditor  prior  to  the  election  of  the  trustee,  and  (2)  the 
expenses  of  administration,  form  a  f imd  for  division  among  "  those  who 
were  creditors  of  the  bankrupt  at  the  date  of  the  sequestration,  ranked 
according  to  their  several  rights  and  interests "  (B.  A.,  1856,  s.  121). 
Creditors  holding  preferable  securities  over  estate  of  the  bankrupt  must  be 
paid  in  full  out  of  such  estate,  and  without  being  charged  with  a  share  of 
the  expenses  of  the  sequestration,  before  such  estate  can  be  claimed  by  the 
trustee  (Globe  Insur.  Co.,  1839,  1  D.  605;  Taylor,  1840,  2  D.  812;  B.  A., 
1856,  s.  114;  Goudy  on  Bankruptcy,  325). 

Immediately  on  the  expiration  of  four  months  from  the  date  of  the 
deliverance  actually  aw\arding  sequestration,  the  trustee  must  proceed  to 
make  up  a  state  of  the  whole  estate  of  the  bankrupt,  of  the  funds  recovered 
by  him,  and  of  the  property  outstanding  (specifying  the  cause  why  it  has 
not  been  recovered),  and  also  an  account  of  his  intromissions,  and  generally 
of  his  management ;  and  within  fourteen  days  after  the  expiry  of  said  four 
months,  the  commissioners  meet  and  examine  such  state  and  account,  and 
ascertain  whether  the  trustee  has  lodged  the  moneys  recovered  by  him  in 
bank  or  not ;  and  if  he  has  failed  to  do  so,  they  must  debit  him  with  interest 
and  20  per  cent.  ;  and  they  must  audit  his  accounts  and  settle  his  commis- 
sion, and  certify  in  the  sederunt  book  the  balance  due  to  or  by  the  trustee ; 
and  declare  whether  any  or  what  part  of  the  net  produce  of  the  estate, 
after  making  a  reasonable  deduction  for  future  contingencies,  shall  be 
divided  among  the  creditors  (B.  A.,  1856,  s.  125).  Similar  states  and 
accounts  must  be  made  up  and  procedure  followed  on  the  expiration  of 
eight  months  from  the  date  of  said  deliverance,  and  at  similar  intervals  of 
time  thereafter,  in  order  that  a  dividend  may  be  made  on  the  expiration 
of  every  three  months  from  the  day  of  payment  of  the  immediataly 
preceding  dividend,  until  the  whole  funds  shall  be  divided  {ih.,  ss.  130, 
132). 

2.  Peoof  of  Claims  for  Eanking. — The  claiming  creditor  must  produce 
oath,  accoimt,  and  vouchers  as  for  voting  purposes ;  the  general  rule  being 
that  for  purposes  of  ranking  the  creditor  must  produce  such  evidence  as 
would  be  necessary  to  prove  the  debt  in  an  action  of  constitution.  Claims 
for  ranking,  however,  must  be  admitted  to  investigation  lialili  modo, 
although  the  vouchers  produced  with  the  oath  are  insufficient  to  prove  the 
debt  primd  facie  (Pillinr/,  1857,  19  D.  938;  A.  &  B.,  1865,  4  M.  83; 
Phosphate  Sewage  Co.,  1874,  1  P.  840,  3  P.  (H.  L.)  77).  It  is  different  in 
claims  for  voting,  in  which,  if  a  voucher  is  ex  facie  invalid,  it  cannot  be  set 
w^hjprout  clejare  evidence,  and  if  valid  ea;/acw,  cannot  be  cut  down  by 
such  evidence. 

The  kind  of  evidence  by  which  a  claim  for  ranking  may  be  supported 
depends  upon  tlie  legal  rules  of  evidence  (see,  e.g.,  Forbes,  1851,  13  D.  1272; 


SEQUESTKATIOX  221 

Purvis,  1869,  7  M.  7G4).  But  in  regard  to  reference  to  oath,  it  has  heen  held 
incompetent  for  a  creditor  to  refer  his  claim  to  the  oath  of  the  hankrupt 
{Adam,  1847,  9  D.  560;  Thomson,  1855,  17  D.  1081;  Dickson  on  Evidence, 
1479-81) ;  and  reference  to  the  trustee's  oath  is  also  incompetent  (Dickson 
on  Evidence,  s.  1463). 

A  creditor  entitled  to  a  preference  must  claim  it  in  his  oath  (Bell,  Com., 
5th  ed.,  ii.  337) ;  and  must  produce  evidence  to  substantiate  such  claim,  as 
well  as  the  vouchers  instructing  the  debt  due  to  him  {Walker,  1853,  16  D. 
226  ;  see  Forlcs,  1851,  13  D.  1272). 

Claims  for  ranking  must,  to  receive  effect  in  tlie  first  dividend,  be 
produced  two  months  before  the  time  fixed  for  payment  thereof,  or,  when 
the  time  has  been  accelerated,  one  month  prior  thereto  (B.  A.,  1856,  s.  123). 
As  to  subsequent  dividends,  the  time  for  lodging  claims  is  at  least  two 
months  before  the  date  fixed  for  payment  (B.  A.,  1857,  s.  5).  The  periods 
for  lodging  claims  are  imperative  {Wright,  1842,  5  D.  164;  Forles,  sujjra). 
By  failure  to  timeously  lodge  a  claim  a  creditor  does  not  absolutely  forfeit 
his  right  to  the  amount  of  the  dividend  in  question.  Thus  if  he  fail  to  lodge 
for  the  first  dividend,  he  is  entitled,  on  occasion  of  the  payment  of  the 
second  dividend,  to  receive  out  of  the  first  of  the  fund  (if  sufficient  for  that 
purpose)  an  equalising  dividend  corresponding  to  the  dividend  he  would 
have  drawn  if  he  had  claimed  in  time  for  the  first  dividend  (B.  A.,  1856, 
s.  123).     And  the  same  applies  to  subsequent  dividends  {ih.). 

If  a  creditor  be  not  in  possession  of  the  requisite  accounts  and  vouchers 
previously  to  the  time  assigned  for  lodging  claims  for  any  dividend,  he 
must  state  in  his  oath  the  cause  of  their  non-production,  and  in  whose 
hands  they  are ;  and  such  oath  entitles  him  to  have  a  dividend  set  apart 
till  a  reasonable  time  be  afforded  for  production,  or  for  otherwise  establish- 
ing the  debt  according  to  law ;  but  he  is  not  entitled  to  vote  till  such 
production  be  made,  or  the  debt  be  so  established  {ih.,  s.  50 ;  sec  Tai/lor, 
1848,  10  D.  335;  Ziston,  1853,  15  D.  923;  Holiday,  1848,  10  D.  1476). 
Where  the  trustee  om.itted  to  send  the  proper  statutory  notices,  creditors 
who,  in  consequence  thereof,  had  not  lodged  claims,  were  found  entitled  to 
interdict  the  trustee  from  paying  the  dividend  without  admitting  them  to 
share  therein  {Scobic,  1869,  8  ]\I.  161).  Special  provision  is  made  for  the 
case  of  creditors  resident  out  of  the  United  Kingdom  (B.  A.,  1856,  s.  124). 

3.  Special  Eules  of  Banking.— (a)  I nteresCand  Discount. — Interest  can 
only  be  claimed,  in  the  first  instance,  to  date  of  sequestration ;  but  if,  after 
paying  in  full  all  the  claims  ranked,  there  remain  a  surplus,  the  creditor  is 
entitled  to  claim  thereout  the  full  amount  of  tlie  interest  on  his  debt  in 
terms  of  law  {ih.,  s.  52).  If  the  debt  is  one  due  after  date  of  seiiuestration, 
the  creditor  must  deduct  interest  and  also  any  discount  allowed  by  usage 
of  trade  {ih.). 

{h)  Secured  Creditors. — In  claiming  to  rank,  a  creditor  holding  a  security 
over  ])art  of  the  sequestrated  estate  must  in  his  claim  put  a  s])ecified  value 
thereon,  and  deduct  sucli  value  from  his  debt  and  specify  the  balance,  and 
he  ranks  only  for  such  balance  (!>.  A.,  1856,  s.  65).  A  security  requiring 
to  be  so  deducted  must  be  one  forming  a  Imrden  on  the  bankru])t's  estate 
at  the  date  of  sequestration  {M'Lelland,  1857, 19  D.  574;  British  Linen  Co., 
1877,  4  B.  651 ;  Royal  Hank,  1882,  9  B.  679  ;  University  of  Glasyow,  1882, 
9  Ii.  643  ;  ex  parte  Brett,  L.  K.  6  Chan.  App.  838).  A  bond  over  a  property 
sold  l)y  the  bankru])t  before  secjuestration  does  not  tlierefore  fall  under  tlic 
rule  ( (Jnircrsity  of  (il(iy.(jow,  supra  ;  cf.  lloifal  Bank,  supra).  A  crcditoi-  who 
has  valued  a  security  fur  a  first  dividend  may  revalue  it  for  a  subsequent 
dividend  if  unrealised  and  altered  in  value  {Commercial  Bank,  1885,  13  Ii.. 


222  SEQUESTRATION" 

257).  A  creditor  claiming  solely  for  a  preference  does  not  require  to  value 
and  deduct  (Broivn,  1849,  11  D.  474). 

To  protect  the  general  body  of  creditors  against  undervaluation  of 
securities,  the  Bankruptcy  Act  gives  right  to  the  trustee,  with  consent  of 
the  commissioners,  to  demand  a  conveyance  of  any  security  at  the  valued 
amount  (s.  65  ;  Hunter,  1860,  22  D.  1166),  provided  he  do  so  within  a 
reasonable  time  {Hendersons  Tr.,  1872,  10  M.  946).  Eailing  his  doing  so, 
"  the  full  benefit  of  such  security  "  is  reserved  to  the  creditor  (ib.),  i.e.  to 
the  extent  and  effect  of  obtaining  full  payment  of  his  debt.  In  either  case 
the  creditor  is  ranked  for  and  receives  a  dividend  on  the  balance  specified 
in  his  claim,  and  no  more,  without  prejudice  to  the  amount  of  his  debt  in 
other  respects  {ih.).  The  trustee  is  entitled  to  access  to  a  security  to 
enable  him  to  decide  what  course  he  shall  adopt  {Ross,  1826,  5  S.  178).  If 
a  security  is  sold,  the  net  sum  realised  will  fall  to  be  substituted  in  the 
creditor's  claim  for  the  former  valued  amount. 

Obligations  by  co-obligants,  or  collateral  securities  {i.e.  not  over  the 
bankrupt  estate)  must  be  set  forth  in  the  creditor's  oath,  but  are  not  required 
to  be  valued  and  deducted  for  ranking  (B.  A.,  1856,  ss.  22,  49  ;  Balfour, 
29  Jan.  1819,  F.  C,  1  Sh.  App.  131;  Blctch,  1840,  2  D.  706;  University 
of  Glasgoio,  1882,  9  Pt.  643,  per  Ld.  Pres.  Inglis ;  see  Eivctrt,  1865,  3  M. 
(H.  L.)  36). 

A  creditor  of  a  company  claiming  on  the  estate  of  a  partner  is  entitled 
to  rank  only  under  deduction  of  his  claim  against  the  company  estate 
(B.  A.,  1856,  s.  66).  The  valuation  and  deduction  is  made  in  this  case  by 
the  trustee  on  the  partner's  estate  {ih. ;  see  M'Clclland,  1857,  19  D.  574), 
subject  to  appeal  (s.  169).  The  creditor,  however,  must  in  his  oath  state 
his  claim  against  the  other  partners,  if  any. 

(c)  Privileged  Creditors  holding  debts  which  are  preferable  ex  lege  with- 
out any  special  security,  are  ranked  on  the  free  funds  of  the  sequestrated 
estate  prior  to  all  ordinary  creditors,  according  to  the  order  of  preference 
inter  se  recognised  by  law  (see  Bell,  Frin.  ss.  1402  et  seq.). 

{d)  Contingent  and  Annuity  Creditors.  —  The  rules  regarding  such 
claims  have  been  already  stated  {ante,  p.  189).  A  creditor  who  does  not 
value  his  debt  is  entitled  to  have  a  dividend  set  aside  for  him  {ib., 
s.  129 ;  see  Mackenzie,  1855,  17  D.  751,  per  Ld.  Deas  ;  Garden,  1860,  22  D. 
1190).  If  the  contingency  is  purified  before  valuation  has  taken  place,  the 
creditor  draws  a  dividend  on  the  actual  amount  of  the  debt,  but  former 
dividends  allocated  to  other  creditors  are  not  disturbed  (B.  A.,  1856,  s.  53). 

(e)  Inhibitions. — Where  inhibition  is  used  against  a  debtor  who  is  after- 
wards sequestrated,  and  whose  debts  have  been  partly  contracted  before 
and  partly  after  the  inhibition,  the  proper  mode  of  ranking  upon  the 
proceeds  of  the  heritable  estate  is,  in  the  first  place,  to  rank  all  the  creditors 
entitled  to  dividend  pari  passic,  and  then  to  give  the  inhibiting  creditor,  by 
way  of  drawback  from  the  posterior  creditors,  the  difference  between  an 
equal  dividend  to  all  and  the  dividend  which  he  would  have  drawn  had 
there  been  no  debts  contracted  subsequent  to  the  inhibition  {Baird  & 
Brown,  1872,  10  M.  414). 

(/)  Double  Banking. — Cautioners  and  Co-obligants. — Where  a  principal 
and  cautioner  are  bound  for  a  debt  and  the  principal  becomes  bankrupt, 
there  can  only  be  one  claim  in  respect  of  the  debt  against  the  bankrupt 
estate.  Thus  where  the  creditor  ranks  on  the  estate  for  his  whole 
debt  and  obtains  a  dividend,  and  thereafter  recovers  the  balance  from 
the  cautioner,  the  latter  cannot  claim  to  rank  on  the  principal's 
estate  in  relief  of  the  sum  so  paid  by  him.     The  cautioner  is  not  thus 


SEQUESTRATION  223 

deprived  of  his  riglit  of  relief.  ^  The  ranking  and  dividend  obtained  by  the 
creditor  enure  to  the  cautioner's  benefit  by  reducing  the  amount  which  he 
can  be  called  on  to  pay ;  and  he  is  placed  in  exactly  the  same  position  as  if 
he  had  paid  up  the  full  amount  of  the  debt  and  then  ranked  for  relief  upon 
the  principal  delator's  estate.  To  allow  the  cautioner  as  well  as  the  creditor 
to  rank  would  involve  a  double  ranking,  and  the  payment  twice  over  of  the 
dividend  efteiring  to  the  portion  of  the  debt  paid  by  the  cautioner.  So  far 
as  the  bankrupt  estate  is  concerned,  the  payment  of  dividend  on  a  debt  is 
payment  of  the  debt  itself  {M'MUlan,  1879,  6  E.  601 ;  Machinnon,  1881,  9 
R.  393 ;  Bell,  Com.  ii.  420).  Thus  in  the  case  of  a  bill  drawn  or  accepted 
for  accommodation,  if  both  parties  become  bankrupt  and  the  holder  ranks 
on  the  estate  of  each  for  the  amount  in  the  bill  and  receives  dividends,  the 
trustee  on  the  estate  of  the  accommodation  party  or  cautioner  is  not 
entitled  to  claun  against  the  estate  of  the  principal  debtor  in  relief  of  the 
dividend  which  the  former  estate  has  paid  to  the  holder  {Anderson,  1876,  3 
E.  60S).  Where  in  such  circumstances  the  cautioner  has  in  his  hands  funds 
belonging  to  the  principal  debtor,  but  which  have  not  been  specifically  appro- 
priated for  his  indemnification  on  the  bill,  the  trustee  on  the  cautioner's 
estate  is,  on  the  same  principle,  debarred  from  claiming  a  right  of  retention 
over  these  funds  in  relief  of  the  dividends  paid  from  the  cautioner's  estate 
{Anderson,  supra ;  MacJdnnon,  supra).  To  allow  such  retention  would  be  to 
enable  the  cautioner's  estate  to  obtain  payment  of  a  debt  which  the  prin- 
cipal debtor's  estate  has  ex  hypothesi  already  paid  in  the  form  of  the  dividend 
drawn  on  the  whole  debt  by  the  bill-holder.  It  is  otherwise  where  the 
cautioner  holds  securities  specifically  appropriated  for  his  relief.  In  this 
case  the  cautioner's  trustee  is  entitled,  in  implement  of  the  contract  under 
which  the  securities  have  been  given,  to  realise  them  and  recoup  his  estate 
for  the  dividends  paid  by  it  to  the  bill-holder  {Eoijal  Banh,  1881,  8  R.  805, 
and  9  R.  (H.  L.)  67).  Where  the  securities  are  insufficient  to  cover  the 
whole  deljt,  and  the  cautioner  is  solvent,  the  result  to  the  cautioner  and 
the  bankrupt  estate  of  the  principal  debtor  will  obviously  vary  accordinf 
as  the  creditor  either  (1)  ranks  for  the  full  debt  on  the  principal's  estate 
in  the  first  instance,  and  recovers  the  balance  beyond  his  dividend  from 
the  cautioner,  or  (2)  recovers  the  full  debt  in  the  first  instance  from  the 
cautioner,  leaving  him  to  rank  on  the  principal's  estate  for  the  amount  so 
paid,  under  deduction  of  the  securities  held  by  him.  It  has  been  decided 
in  one  Scotch  case  that,  as  it  is  the  right  of  the  creditor  to  take  which 
course  he  pleases,  the  trustee  on  the  principal  debtor's  estate  is  not 
entitled,  in  the  event  of  the  creditor  taking  the  first  course,  to  insist  on 
reckoning  with  the  cautioner  on  the  same  footing  as  if  the  creditor  had 
chosen  to  ado])t  the  second  course  {Jamicson,  1875,  2  E.  701 ;  cf.  Chrisiic, 
1838,  16  S.  1224,  per  Ld.  Mackenzie).  The  rule  in  England  seems  to  be 
to  the  contrary,  at  least  wliere  the  creditor  claims  on  the  principal  debtor's 
estate  l)y  an  arrangement  with  the  cautioner  and  with  a  view  to  the  latter's 
advantage  {Lainrs,  15  Q.  B.  D.  102,  16  C^.  B.  D.  330  ;  ex  parte  Sherrinqion, 
1  M.  D.  &  D.  195). 

The  rule  against  doulde  ranking  only  applies  where  there  is  a  proper 
bankruptcy  involving  divestiture  of  tiie  debtor  and  the  lianding  over  of  his 
estate  for  distribution  among  his  creditors  {Maelclnnon,  1881,  9  R.  393). 

lianhing  of  Creditor  on  Estate  of  Cautioner. — If  the  debt  is  not  yet  due, 
the  creditor  can  rank  contingently  on  tlie  bankrupt  estate  of  the  cautioner, 
to  the  eff(,'ct  of  having  a  dividend  set  apart  for  his  security  (IjcII,  Corn.  i. 
368).  If  the  debt  is  due  and  the  principal  has  made  default,  tlic  creditor 
can  rank  on  the  cautioner's  estate  for  the  amount  due  at  the  date  of  the 


224  SEQUESTEATION 

bankruptcy  (ib.).  If  a  cautioner  has  undertaken  an  obligation  of  greater 
nominal  amount  than  the  debt  really  due  by  the  iDrincipal  debtor,  the 
creditor  cannot  rank  on  the  cautioner's  estate  for  more  than  the  true 
amount  of  the  debt  {Jacl'son,  1875,  2  E.  882).  Where  the  holder  of  bills 
claimed  and  was  ranked  on  the  estate  of  an  indorser  and  received  a 
dividend,  and  thereafter  obtained  full  payment  from  the  acceptor,  it  was 
held  that  the  indorser,  after  being  discharged  on  composition,  was  entitled 
to  demand  repayment  of  the  amount  of  the  dividend  paid  from  his  estate 
{Patten,  1853,  15  D.  617).  If  there  are  several  cautioners,  bound  as  such, 
the  right  of  division  is  lost  by  the  bankruptcy  of  one  or  more  of  them,  and 
the  creditor  may  claim  the  whole  debt  from  any  solvent  cautioner,  or  may 
rank  for  the  whole  debt  on  the  estate  of  each  bankrupt  cautioner,  and 
claim  any  balance  from  the  solvent  cautioners  (Bell,  Com.  i.  371-2).  If 
the  creditor  holds  a  security  for  the  del)t,  a  cautioner  cannot  claim  the 
benefit  of  it  without  paying  the  full  debt  {Eicart,  1865,  3  M.  (H.  L.)  36). 

A  co-cautioner  who  pays  more  than  his  share  after  the  principal's 
default  may  rank  on  the  estates  of  the  other  cautioners  in  relief  of  the 
excess,  provided  the  creditors  have  not  already  ranked  (Bell,  Com.  i.  369, 
373).  A  solvent  co-cautioner,  paying  the  wdiole  debt,  may  rank  on  the 
estate  of  each  bankrupt  cautioner  for  half  the  amount  so  paid,  in  relief  of 
the  excess  beyond  his  proper  share  {il.,  p.  371).  If  one  co-cautioner 
becomes  bankrupt  before  the  principal's  default,  the  other  cautioners  seem 
to  be  entitled  to  rank  contingently  on  his  estate  in  the  event  of  the  creditor 
not  ranking  thereon  (Goudy  on  Bankriqitcy,  597  ;  ex  ^mrte  Stokes,  De  G. 

618). 

A  cautioner's  right  to  rank  on  the  bankrupt  estate  of  the  principal 
debtor  is  as  follows: — (1)  If  the  debt  is  not  yet  due  and  the  creditors  have 
not  ranked,  the  cautioner  may  be  ranked  to  the  extent  of  having  a  dividend 
set  aside  for  him  in  case  he  pays  the  debt  (Bell,  Com.  i.  365  ;  ii.  421).  If 
the  creditor  ranks  for  the  full  debt,  there  can  be  no  ranking  of  the 
cautioner.  If  the  cautioner  pays  the  debt,  he  may  rank  for  the  amount 
without  an  assignation  from  the  creditor  (Bell,  Prin.  s.  255 ;  B.  A.,  1856, 
s.  65  ;  see  Eiocirt,  1865,  3  M.  (H.  L.)  36) ;  and  where  the  cautioner  pays  the 
outstanding  debt  after  the  creditor  has  drawn  dividends  from  the  principal's 
estate,  the  cautioner  may  thus  rank  quoad  future  dividends  (Goudy  on 
Bankruptcy,  597  ;  in  re  Buhner,  3  De  G.,  M.  &  G.  218).  Where  the  cautioner 
pays  part  of  the  debt  before  the  principal's  bankruptcy,  then,  as  the 
creditor  must  deduct  such  amount  in  ranking,  the  cautioner  may  rank 
therefor  (see  Thomson,  1863,  1  M.  913 ;  Paley,  12  Ves.  435). 

Banking  on  Bills  of  Exchange. —  Vide  ante,  vol.  ii.  p.  122. 

{g)  Partial  Payments  before  sequestration  to  account  of  a  debt,  whether 
made  by  the  bankrupt  or  a  co-obligant,  must  be  deducted  from  the 
creditor's  claim  (B.  A.,  1856,  s.  121 ;  Bohertson,  1823,  2  S.  403 ;  3fein,  1824, 
2  S.  645;  Farqiiharson,  1832,  10  S.  526;  Hamilton,  1841,  3  D.  494;  Bell, 
Com.,  5th  ed.,  ii.  338-9),  but  not  if  made  after  the  date  of  sequestration 
{il. ;  Black,  1840,  2  D.  706). 

4.  Adjudication  ox  Claims. — Within  fourteen  days  after  the  expira- 
tion of  four  months  from  the  date  of  the  deliverance  actually  awarding 
sequestration,  the  trustee  must  (unless  payment  of  dividend  has  been  post- 
poned) examine  the  creditors'  claims,  and,  in  writing,  either  (1)  admit  or 
(2)  reject  them,  or  (3)  require  further  evidence  in  support  thereof  (B.  A., 
1856,  ss.  125,  126  ;  see  Bitchie,  1875,  2  E.  297 ;  Henderson,  1849,  11  D.  1470. 
As  to  case  of  postponement  of  dividend,  see  Monkhonsc,  18S1,  8  E.  454). 
There  must  be  a  deliverance  on  each  claim,  and  it  should  be  dated  and 


SEQUESTEATION  225 

signed  and  unambiguous  (B.  A.,  1856,  s.  126 ;  Bell,  Co7n.,  5th  ed.,  ii.  430 ; 
Urc,  1824,  2  S.  545  ;  rev.  1  AV.  &  S.  565).  The  trustee  cannot  both  reject  a 
claim  and  at  the  same  time  call  for  further  evidence  {Ritchie,  1875,  2  E. 
297,  where  interdict  granted  against  payment  of  dividend).  The  trustee 
must  make  up  classified  lists  of  the  claims  admitted  an<l  rejected  (B  A 
1856,  s.  126). 

Admisdon  of  Claim  may  be  total  or  partial,  absolute  or  conditional  (see 
Gihb,  1838,  16  S.  1002;  Stewart,  1851,  13  D.  1337;  Eivart,  1865,  3  M. 
(H.  L.)  36 ;  Assets  Co.,  1889,  26  S.  L.  II.  593 ;  Clydesdale  Banlc,  1890,  27 
S.  L.  It.  493),  and  may  admit  the  claim  as  ordinary,  preferable,  contingent, 
or  postponed.  AVhere  a  creditor  claims  a  preference,  the  trustee  may  rank 
him  as  an  ordinary  creditor,  rejecting  his  claim  for  a  preference  (Forbes, 
1851,  13  D.  1272).  A  deliverance  admitting  a  claim,  when  once  issued, 
cannot  be  recalled  by  the  trustee  quoad  the  particular  dividend,  and  the 
creditor  can  claim  the  dividend  from  the  trustee  although  the  funds  are 
exhausted  {Hamilton,  1830,  9  S.  40 ;  but  cf.  Monkhousc,  1881,  8  E.  454,  as 
to  deliverance  where  no  dividend  declared).  Informal  adjustment  of  a 
claim  between  the  creditor  and  the  trustee's  clerk  was  held  no  bar  to 
rejection  {Holideiy,  1848,  10  D.  1476).  Admission  of  a  claim  for  a  first 
dividend  does  not  bar  its  rejection  in  whole  or  in  part  for  a  subsequent  one. 

Rejection  of  a  Claim  must  proceed  on  a  ground  specified  in  the  deliver- 
ance (B.  A.,  1856,  s.  126 ;  see  Adcock,  1843,  6  D.  199). 

Ccdl  for  farther  Evidence. — It  is  the  duty  of  the  trustee  to  call  for 
further  evidence  where  the  circumstances  make  it  appropriate ;  and  if  he 
rejects  without  doing  so,  he  may  be  liable  in  expenses  in  an  appeal  {A.  &  B., 
1865,  4  ]\1.  83;  Purvis,  1869,  7  M.  764).  Power  is  given  him  to  "examine 
the  bankrupt,  creditor,  or  any  other  party  on  oath  relative  tliereto  "  (B.  A., 
1856,  s.  126),  and  it  is  his  duty  to  take  such  evidence  as  is  available 
{PUliwj,  1857,  19  D.  938;  A.  &  B.,  supra;  see  Thomson,  1889,  16  E.  333; 
Phosphate  Sewarjc  Co.,  1874,  1  E.  840;  1876,  3  E.  (H.  L)  77),  for  which 
]nn-pose  he  may  obtain  a  warrant  from  the  Sheriff  to  compel  attendance  of 
parties  for  examination  (see  Murdoch  on  Bankruptcy,  320).  As  a  rule,  the 
trustee  should  call  for  further  evidence  where  it  appears  to  liini  tliat  the 
claim  is  a  bond  fide  one,  and  that  there  is  a  prospect  of  its  being  estal)lished 
by  evidence  {Pdling,  supra]  Ritchie,  1875,  2  E.  297,  per  Ld.  Eros.  Jnglis). 
<  )ii  the  other  hand,  where  the  facts  in  dispute  arc  involved  and  complex,  the 
]iroper  course  for  the  trustee  may  be  to  reject  the  claim,  and  leave  the 
creditor  to  estaWisli  it  on  appeal  (see  Phosphate  Sewaye  Co.,  supra).  "Where 
the  trustee  has  rejected  without  calling  for  further  evidence,  the  Couil  may 
on  a}>peal  remit  back  to  him  f(jr  the  ]nirpose  (Pilliny,  supra;  Oliver,  ]SG9, 
7  M.  407),  or  may  itself  take  proof  (Ritchie,  1875,  2  E.  297),  or  remit  back 
to  the  Sheriirfor  that  jmrpose  (Thomson,  1889,  16  E.  3.33). 

Within  eiglit  days  after  the  expiration  of  the  fourteen  days  above 
mentioned,  the  trustee  must  give  notice  in  tlie  Gazette  publislicd  next  alter 
expiration  of  such  fourteen  days  of  the  time  and  place  of  i)ayiiient  of  the 
dividend,  and  also  notify  the  same  l)y  letters  put  into  the  post  olfice  on  or 
before  the  first  lawful  day  after  tlie  said  fourteen  days  addressed  to  each 
creditor,  in  \vhi(-ii  he  must  sjtecify  the  amount  of  the  claim  and  the  proposed 
ilividend  thereon  ;  and  wlien  he  lias  rejected  any  claim,  he  must  notify  the 
claimant  thereof  by  letter  as  aforesaid,  which  letter  must  also  contain  a 
co])y  of  jiis  deliverance  and  s]»ecify  tlic  .iiiiounl  nf  the  claim  (B.  A.,  1856, 
H.  127;  see  Adcock,  1843,  6  I).  199).' 

Where  there  is  an  appeal  to  the  Accountant  of  Court  against  the 
trustee's  commission,  tlie  above  procedure  is  postponed  until  the  determina- 

8.  E. — VOL.  .\r.  15 


226  SEQUESTPtATIOK 

tion  of  the  appeal  (52  &  53  Vict.  c.  39,  s.  17).  Where  no  immediate 
di\dden(l  is  to  be  paid,  the  trustee  simply  advertises  the  postponement  in 
the  Gazette  (B.  A.,  1856,  s.  134). 

5.  Appeal  against  Trustee's  Deliverances  on  Claims. — A  deliver- 
ance by  the  trustee,  admitting  or  rejecting  a  claim,  may  be  appealed  either 
to  the  Lord  Ordinary  on  the  Bills  or  to  tlie  Sheriff,  within  fifteen  days  from 
the  date  of  publication  in  the  Gazette  of  the  foresaid  notice  of  payment,  by 
"  a  short  written  note  "  lodged  and  marked  by  the  Bill  Chamber  Clerk  or 
Sheriff  Clerk  (B.  A.,  1856,  s.  127).  Failing  such  appeal,  the  decision  of  the 
trustee  is  final  and  conclusive  as  regards  the  dividend  in  question  {tb.) ; 
but  in  the  case  of  a  claim  being  rejected,  the  decision  is  without  prejudice 
to  any  new  claim  being  afterwards  made  in  reference  to  future  dividends, 
such  new  claim  not  disturbing  prior  dividends  {ib. ;  Blair,  1844,  6  D.  705). 
After  the  lapse  of  the  appealing  days  a  reduction  is  not  competent  {Barhour, 
1835, 14  S.  27).  An  appeal  against  a  deliverance  calling  for  the  production 
of  further  evidence  is  regulated  by  sec.  169  of  the  1856  Act  {Brotvn,  1859, 
21  D.  1133.      Vide  post,  p.  244). 

Any  creditor  may  appeal,  and  that  although  his  own  claim  is  under 
appeal  as  having  been  rejected  by  the  trustee  (B.  A.,  1856,  s.  127  ;  Morris, 
1843,  5  D.  439).  The  bankrupt  cannot  appeal  under  sec.  127  {Rohertson, 
1885,  13  E.  424) ;  but  it  has  been  considered  that  he  can  appeal  under  sec. 
169  where  he  has  an  interest  to  do  so  {ih.). 

Where  the  deliverance  is  one  rejecting  a  claim,  the  trustee  is  the  proper 
respondent.  Where  it  is  one  admitting  a  claim,  the  common  practice  is  for 
the  appeal  to  be  served  on  the  trustee,  who  intimates  it  to  the  claimant, 
leaving  him  to  compear  and  defend  the  deliverance  if  so  advised ;  but  the 
correct  course  is  to  serve  the  appeal  upon  the  claimant,  he  being  the  real 
contradictor  {SJcinner's  Tr.,  1887,  14  E.  563).  Where  a  trustee  had 
admitted  a  preferable  claim,  it  was  held  that  he  had  no  right  to  appear  to 
defend  it  {ib.).  Where  a  trustee  rejected  the  claim  of  a  creditor  to  a  pre- 
ference on  a  certain  fund,  and  sustained  the  claim  of  another  creditor  wdiich 
exhausted  the  fund,  and  the  former  creditor  appealed  against  the  first 
deliverance  only,  it  was  held  that  the  appeal  was  competent,  and  that  the 
proper  course  was  to  serve  the  appeal  on  the  creditor  whose  claim  had  been 
sustained,  in  order  that  he  might  appear  if  so  advised  {Marshall,  1867,  5  M. 
377).  In  the  case  of  a  scheme  of  ranking  on  the  proceeds  of  the  heritable 
estate,  it  was  neld  that  an  appeal  by  a  creditor  against  the  deliverance  on 
his  claim  competently  brought  under  review  the  general  scheme  of  ranking 
{ib.). 

There  is  no  statutory  form  of  appeal.  A  style  will  be  found  in  the 
Appendix  hereto. 

Where  a  creditor  is  successful  in  an  appeal  and  found  entitled  to  ex- 
penses against  the  trustee,  no  share  of  these  expenses  can  be  charged  upon 
his  dividend  {Dc  Tastet,  1825,  4  S.  245;  Houston,  1841,  4  D.  80 ;  Adam  & 
Kirk,  1866,  5  M.  40).  And  the  same  holds  as  to  the  trustee's  expenses,  if 
no  expenses  are  found  due  {Scott,  1822,  1  S.  448).  The  trustee  is  liable 
personally  to  a  successful  creditor  for  expenses  given  against  him  {Cowie, 
1893,  20  E.  (H.  L.)  81 ;  Jeffrey,  1821,  1  S.  103 ;  affd.  1824,  2  Sh.  App.  349 ; 
^.  tfc  ^.,  1865,  4  M.  83;  Arm,  1869,  41  Sc.  Jur.  396;  see  White,  1894, 
21  E.  649;  Craig,  1896,  24  E.  6).  But  a  decerniture  against  him  "as 
trustee  "  will  not  involve  personal  liability  (see  Craig,  supra,  and  cf.  Gibson, 
1833,  11  S.  656). 

Within  fourteen  days  after  the  expiration  of  eight  months  from  the 
actual  award  of  sequestration,  the  trustee  and  commissioners  proceed  to 


SEQUESTEATIO:Nr  227 

make  provision  for  payment  of  a  second  dividend,  should  there  be  sufficient 
funds,  in  the  same  way  as  in  regard  to  the  first  dividend,  and  the  same 
procedure  appHes  in  regard  to  adjudication  on  claims  and  right  of  appeal, 
etc.  (B.  A.,  1856,  s.  130).  And  the  same  holds  as  to  any  subsequent 
di^-idends  (20  &  21  Vict.  c.  19,  s.  6). 

6.  Payment  of  Dividends. — In  ordinary  course  the  first  dividend  is 
declared  by  the  commissioners  at  their  meeting  for  auditing  the  trustee's 
accounts  and  fixing  the  trustee's  remuneration,  held  within  fourteen  days 
after  the  expiry  of  four  months  from  the  actual  award  of  sequestration. 
They  then  declare  what  part  of  the  estate  shall  be  divided,  if  any.  The 
second  dividend  is  declared  at  the  corresponding  meeting  held  within 
fourteen  days  after  the  expiry  of  eight  months  from  the  award ;  and  the 
like  procedure  takes  place  at  the  subsequent  meetings,  which  fall  to  be  held 
at  such  intervals  as  will  enable  a  dividend  to  be  paid  at  the  end  of  three 
months  from  the  date  of  payment  of  the  preceding  one  (B.  A.,  1856,  ss.  125, 
130,  132 ;  20  &  21  Vict.  c.  19,  s.  6).  The  declaration  of  dividend  is  made 
by  a  writing  under  the  hands  of  the  commissioners  engrossed  or  copied  in 
the  sederunt  book  (B.  A.,  1856,  s.  125). 

Before  the  expiry  of  six  months  from  the  award  of  sequestration,  the 
trustee  must  make  up  a  scheme  apportioning  the  fund  declared  for  division 
as  first  dividend  among  the  creditors  who  have  been  ranked  or  whose  claims 
are  then  under  appeal  (ib.,  s.  128) ;  and  a  scheme  applicable  to  the  second 
dividend  must  be  made  up  within  ten  months  of  the  award,  and  similarly 
with  regard  to  subsequent  dividends  (ib.,  ss.  129,  131). 

The  first  dividend  is,  in  ordinary  course,  paid  on  the  first  lawful  day 
after  the  expiry  of  six  months  from  the  date  of  the  award  of  sequestration ; 
the  secontl  on  the  first  lawful  day  after  the  expiry  of  ten  months  from  said 
<late ;  and  subsequent  dividends  on  the  first  lawful  day  after  the  expiry  of 
three  months  from  the  day  of  payment  of  the  preceding  one  (ib.,  ss.  125, 
129, 131,  132 ;  20  &  21  Vict.  c.  19,  s.  6).  The  trustee  must  appoint  a  place 
of  payment,  and  notify  the  creditors  by  Gazette  notice  and  by  post  letters 
sent  to  them  individually  (B.  A.,  1856,  ss.  127,  130 ;  see  Adcock,  1843, 
G  D.  199). 

Dividends  may  Ije  arrested  or  assigned  (see  Barbour,  1835,  14  S.  27  ; 
Wallace,  1821,  1  S.  56,  2  Sh.  App.  467). 

The  trustee  must  lodge  in  bank  at  the  time  of  payment  of  dividend, 
the  dividends  effeiring  to  (1)  contingent  creditors,  (2)  creditors  in 
claims  under  appeal,  to  remain  until  purification  of  the  contingency  or 
disposal  of  the  appeal  (15.  A.,  1856,  s.  129).  He  is  responsible  for  money 
not  lodged  {Houston,  1842,  4  D.  1220).  A  dividend  so  set  apart  for  a 
creditor  whose  claim  fails  on  appeal,  forms  part  of  the  fund  for  the  next 
dividend  {Blair,  1844,  6  D.  705). 

The  Bankruptcy  Act,  1856,  contains  provisions  under  which  tlie 
ordinary  periods  for  payment  of  dividends  may  be  accelerated,  or  i)ostponed, 
or  altered  (ss.  133,  134,  135).  A  resolution  to  postpone  is  subject  to  appeal 
under  sec.  169  (Stcelr,  1865,  3  M.  587). 

7.  Unclaimed  Dividends. — Before  tlie  trustee's  discharge,  he  must 
<lcposit  in  bank,  under  direction  from  the  Accountant  of  Court,  any  un- 
claimed dividends,  and  transmit  the  deposit  receipts  to  the  Accountant, 
who  retains  them  for  seven  years  from  tlie  date  of  de])Osit,  and  who  keeps 
a  register  of  all  unclaimed  dividends  (P..  A.,  1856,  s.  153;  58  &  59  Viet. 
c.  19,  8.  10).  'The  interest  on  such  deposits  goes  into  a  general  fund  called 
"  The  Interest  Account  of  Unclaimed  Dividends."  The  Imnk  must,  on  or 
before  the  first  day  of  April  in  each  year,  account  to  the  Queen's  and 


228 


SEQUESTEATION 


Lord  Treasurer's  Iiemembrancer  for  the  interest  on  the  interest  account 
of  unclaimed  dividends  for  the  preceding  calendar  year.  On  the  expiry  of 
the  seven  years,  the  Accountant  must  hand  over  the  deposit  receipts  to  the 
Queen's  and  Lord  Treasurer's  Eemembrancer,  who  thereupon  obtains  pay- 
ment of  the  amount  due,  principal  and  interest,  from  the  bank  in  which 
the  deposit  was  made.  After  the  trustee's  discharge,  any  person  producing 
evidence  of  his  right  to  an  unclaimed  dividend  may  obtain  a  warrant  from 
the  Lord  Ordinary  on  the  Bills  for  payment  without  interest  (ih.).  The 
bankrupt  has  no  right  to  such  dividends  (Air,  1886,  13  E.  734).  A 
dividend  arrested  in  the  hands  of  the  trustee  and  lodged  by  him  in  bank 
was  held  not  to  be  an  unclaimed  dividend,  and,  on  the  arrestment  being 
loosed,  the  creditor  was  found  entitled  to  the  sum  with  interest  {ParJccr, 
1841,  3  D.  1013). 


XIII.   DiSCHAEGE   OF   BANKKUrX   WITHOUT   COMPOSITION. 


1.  Application  for  Discharge 

2.  Award  of  Discharge 

3.  Effects  of  Discharge 


228 
230 
231 


4.  DischargeofCompany  and  Partners  233 

5.  Preferences  and  Collusive   Agree- 

ments for  procuring  Discharge  .  233 


1.  Application  foe  Dischaege. — The  periods  at  which  it  is  competent 
under  the  Bankruptcy  Act,  1856,  to  apply  for  discharge  are  as  follows  : 
1.  At  any  time  after  the  meeting  held  after  the  bankrupt's  examination, 
provided  that  every  creditor  who  has  duly  produced  his  oath  concurs  in 
the  petition ;  (2)  on  the  expiration  of  six  months  from  the  date  of  the 
deliverance  actually  awarding  sequestration,  provided  a  majority  in  number 
and  four-fifths  in  value  of  the  creditors  who  have  produced  oaths  concur ; 

(3)  on  the  expiration  of  twelve  months  from  the  date  of  said  deliverance,  pro- 
vided a  majority  in  number  and  two-thirds  in  value  of  such  creditors  concur  ; 

(4)  on  the  expiration  of  eighteen  months  from  the  date  of  said  deliverance, 
provided  a  majority  in  number  and  value  of  such  creditors  concur ;  (5)  on 
the  expiration  of  two  years  from  the  date  of  said  deliverance,  without  any 
consents  of  creditors  (s.  146;  see  sec.  101  as  to  computing  majorities;  and 
Gemmcll,  1853,  16  D.  264,  as  to  contingent  creditors). 

The  petition  is  presented  to  the  Lord  Ordinary  on  the  Bills  or  the 
Sheriff  (ih.).  A  form  will  be  found  appended.  Where  the  bankrupt  is 
aln-oad,  it  may  be  presented  by  a  mandatory  {Cameron,  28  Feb.  1818,  F.  C. ; 
see  Hoiv,  1833,  12  S.  211). 

The  concurrence  of  creditors,  where  required,  must  be  given  prior  to  the 
presenting  of  the  petition  {Gilfillan,  1836,  15  S.  149).  It  must  be  expressed 
in  writing  and  contain  reference  to  the  trustee's  report  as  to  the  bankrupt's 
conduct  (see  infra) ;  but  there  is  no  prescribed  form.  The  minutes  of  a 
creditors'  meeting  at  which  such  concurrence  has  been  given  will  be 
sufficient  evidence  (Bell,  Com.,  5th  ed.,  ii.  445).  The  concurrence  must  be 
express  {Charles,  1835,  14  S.  139).  It  may  be  withdrawn  prior  to  tlie 
presentation  of  the  petition  (see  as  to  withdrawal,  Bell,  Com.,  id  siqyra  ;  Rcid, 
1838,  16  S.  549;  Sheriff,  23  Nov.  1809,  F.  C. ;  Meggct,  1830,  8  S.  1063; 
Walker,  1835,  13  S.  759). 

It  is  not  competent  for  the  bankrupt  to  present  a  petition  for  discharge, 
or  to  obtain  consents  of  creditors,  until  the  trustee  has  prepared  a  report  as 
to  the  bankrupt's  conduct,  stating  (1)  whether  he  has  made  a  fair  dis- 
covery and  surrender  of  his  estate;  (2)  whether  he  has  attended  the 
examination  ;  (3)  whether  he  has  been  guilty  of  any  collusion  ;  (4)  whether 
his  bankruptcy  has  arisen  from  innocent  misfortune  or  business  losses,  or 
from  the  bankrupt's  fault  (B.  A.,  1856,  s.  146  ;  see  Scott,  1872,  10  M.  626; 


SEQUESTRATION  229 

CamiMll^oo,  17  D.  430;  Dixons  Trs.,  1867,  5  M.  767;  for  form  of 
report,  see  notes  issued  by  Accountant,  printed  in  Parliament  House  Book). 
The  report  may  be  demanded  on  the  lapse  of  five  months  from  the  date  of 
the  deliverance  awarding  sequestration  (s.  146  ;  Mather,  1881,  8  E.  952), 
free  of  cost  {White,  1879,  6  R.  854;  Mather,  siq^ra).  It  nnist  be  produced 
in  the  application  for  discharge  and  referred  to  in  creditors'  consents  thereto 
(s.  146 ;  Scott,  supra).  "While  constituting  j^rimd  facie  evidence  {Findlay, 
1832,  10  S.  813  ;  Cooper,  1872,  11  M.  38),  it  is  not  conclusive  as  to  the 
facts  stated  in  it  (see  Dixons  Trs.,  1867,  5  M.  767).  Where  a  trustee  has 
died  or  become  incapacitated,  or  has  left  the  country  and  cannot  be  found, 
the  Court  wi]l,  on  petition,  remit  to  the  Accountant  of  Court,  and  accept 
his  report  in  lieu  of  one  by  the  trustee  {White,  1893,  20  R.  600  ;  Mcldrum, 
1895,  2  S.  L.  T.  p.  400). 

The  petition,  when  presented,  is  ordered  to  be  intimated  in  the  Gazette 
and  to  each  creditor  (s.  140).  The  subsequent  procedure,  where  discharge 
is  obtained,  embraces  three  steps :  (1)  A  dehverance  finding  the  bankrupt 
entitled  to  discharge ;  (2)  a  declaration  or  oath  by  tlie  bankrupt ;  (3)  a 
deliverance  granting  discharge  (ss.  146,  147). 

In  the  case  of  no  opposition  being  offered  to  the  application,  the 
Bankruptcy  Act,  1856,  provided  that,  at  the  distance  of  not  less  than 
twenty-one  days  from  the  publication  of  the  intimation  of  the  petition,  the 
Lord  Ordinary  or  Sheriff  should  pronounce  a  deliverance  finding  the 
bankrupt  entitled  to  a  discharge  (s.  146;  see  Millar,  1877,  5  R.  144).  By 
subsequent  statutes,  however,  important  changes  have  been  made  on  this 
rule.  The  liankruptcy  Act,  1860  (23  &  24  Vict.  c.  33,  s.  3),  conferred  on 
the  Court  a  discretionary  power  to  refuse  discharge  if  it  appears  from  the 
report  of  the  Accountant  or  other  evidence  that  the  bankrui)t  lias  fraudu- 
lently concealed  any  part  of  his  estate  or  effects,  or  has  wilfully  failed  to 
comply  with  any  of  the  provisions  of  the  Bankruptcy  Act,  1856  (see  Millar, 
1877,  5  R.  144).  By  tlie  Bankruptcy  and  Cessio  Act,  1881  (44  &  45  Vict, 
c.  22,  8.  6),  it  is  provided  that  discharge  shall  not  be  granted  unless  it  is 
proved  to  the  satisfaction  of  the  Lord  Ordinary  or  Sheriff  either—"  («)  that 
a  dividend  or  composition  of  not  less  than  5s.  in  the  £  has  been  paid  out  of 
the  estate  of  the  bankrupt,  or  that  security  for  payment  thereof  has  been 
found  to  the  satisfaction  of  the  creditors ;  or  {h)  that  the  failure  to  pay  5s. 
in  the  £,  as  aforesaid,  has,  in  tlie  opinion  of  the  Lord  Ordinary  or  the  SheritV 
as  the  ca.se  may  be,  arisen  from  circumstances  for  which  the  bankrupt 
cannot  justly  be  held  responsible."  If  the  failure  to  pay  5s.  in  the  £  has 
arisen  wholly  or  mainly  from  the  fault  of  the  bankrupt,  the  Court  has  no 
discretion,  but  must  refu.se  discharge  (sec  .S'/iroic/,  1882,  19  S.  L.  R.  562; 
Wihon,  1882,  20  S.  L.  R.  17;  Clarke,  1883,  U  R.  246;  Boyle,  1885,  12  R. 
1147  ;  Phillips,  1885,  13  R.  91).  The  onus  of  proof  lies  on  the  bankrupt. 
In  order  to  determine  wliether  either  of  the  aforesaid  conditions  has  been 
complied  with,  the  Lord  Ordinary  or  ShcriH"  lias  power  to  rcfiuirc  the 
bankruj)t  to  submit  such  evidence  as  he  may  think  necessary,  and  to  allow 
any  objecting  creditor  sucli  i»roof  as  he  may  think  right  (44  &  45  Vict.  c.  22, 
9.  6  (2J ;  Alison,  1890,  18  11.  212).  A  ivniit  may  be  made  to  the  Account- 
ant to  rep(.rt  (see  ClarLr,  supra  ;  Boijlc,  supra).  The  ju.lgment  of  tlie  Lord 
Ordinary  or  Sherilf  under  the  above-mentioned  provisions  of  the  Act  of 
1881  is  subject  to  ai)peal  in  the  manner  provided  by  sees.  171  and  170  of 
the  Bankruptcy  Act,  1856,  a  jiulgment  «jf  the  Innci-  ILmse  on  any  such 
api.eal  being  final  (44  ^^'.  45  Vict.  c.  22,  k.  6  (3)).  In  the  event  of  a  dis- 
charge being  refused  under  said  provisions,  the  bankrupt  may,  if  his  estate 
shall  yield  or  he  shall  pay  to  his  creditors  such  additional  sum  as  will  with 


230  SEQUESTRATION 

the  dividend  or  composition  previously  paid  out  of  his  estate  during  the 
sequestration  make  up  5s.  in  the  £,  apply  for  it  anew  in  the  same  manner 
as  if  a  dividend  of  5s.  had  originally  been  paid  out  of  his  estate  {ih., 
s.  6  (4)). 

A  petition  for  discharge  may  be  opposed  by  any  creditor,  whether  he 
has  proved  his  debt  or  not  (Cant,  1868,  6  M.  368  ;  see  Sav7son,  1851, 
13  D.  1395.  As  to  creditor  who  has  given  concurrence,  see  Beid,  1838, 
16  S.  549,  per  Ld.  Meadowbank).  The  trustee,  if  a  creditor,  may  oppose 
(see  Wi/lie  &  Zochead,  1859,  21  D.  577). 

In  the  case  of  opposition  the  Act  of  1856  provides  that  the  Lord 
Ordinary  or  Sheriff  "  shall  judge  of  any  objections  against  granting  the 
discharge,  and  shall  either  find  the  bankrupt  entitled  to  his  discharge  or 
refuse  the  discharge,  or  defer  the  consideration  of  the  same  for  such  period 
as  he  may  think  proper,  and  may  annex  such  conditions  thereto  as  the 
justice  of  the  case  may  require "  (s.  146 ;  as  to  conditions,  see  Ncqiier, 
1850,  13  D.  222;  Lcarmonth,  1858,  20  D.  418;  Blaildc,  1871,  10  M.  140; 
Kirklcmd,  1886,  13  E.  798;  Rcid,  1893,  20  II.  510;  31'Carter,  1893,  20  E. 
1090).  In  the  case  last  cited  it  was  made  a  condition  that  the  bankrupt 
should  pay  the  expenses  of  the  sequestration. 

The  grounds  for  refusing  discharge  under  the  Bankruptcy  Act,  1860, 
and  Bankruptcy  and  Cessio  Act,  1881,  already  stated,  apply  equally  whether 
the  petition  is  opposed  or  not.  The  following  grounds  of  opposition  may 
also  be  pleaded  : — 

(1)  Material  defects  in  the  statutory  requirements  under  the  petition 
(Bell,  Com.,  5th  ed.,  ii.  441;  see  Row,  1833,  12  S.  211;  IFtjlie  &  Lochead, 
1859,  21  D.  577;  Scott  &  CampMl,  1872,  10  M.  626;  cf.  Finlay,  1832, 
7  F.  C.  396). 

(2)  Failure  by  the  bankrupt  to  comply  with  his  statutory  duties  in 
material  respects.  Where  the  bankrupt  refuses  when  called  on  to  make 
over  to  his  creditors  a  fund  or  interest  not  attached  by  the  sequestration 
(as,  e.g.,  a  spes  siicccssionis),  it  is  not  settled  whether  such  refusal  is  a  good 
objection  to  discharge  (see  L'laikie,  1871,  10  M.  140;  Kirkland,  1886, 
13  E.  798 ;  Beid,  1893,  20  E.  510). 

(3)  Fraud  or  collusive  conduct  on  the  part  of  the  bankrupt,  as,  e.g., 
embezzlement  or  fraudulent  disposal  of  goods  on  the  eve  of  bankruptcy 
(Ciminghame,  1821,  1  S.  143;  Findlay,  1832,  10  S.  813;  Cooper,  1872, 
11  M.  i38;  Millar,  1877,  5  E.  146),  or  entering  into  such  collusive  arrange- 
ments as  are  struck  at  by  sec.  150  of  the  1856  Act. 

(4)  Extravagance  or  reckless  trading  on  the  part  of  the  bankrupt  (see 
Lcarmonth,  1858,  20  D.  418 ;  M'NcUan,  1856,  18  D.  488 ;  Gcmmcll,  1853, 
16  D.  264;  Dixon's  Trs.,  1867,  5  M.  767;  Na2ncr,  1850,  13  D.  222). 

The  deliverance  on  the  petition  may  be  appealed  within  eight  days  if 
pronounced  by  the  Sheriff,  or  within  fourteen  days  if  by  the  Lord  Ordinary 
(B.  A.,  1856,  ss.  170,  171;  see  Samson,  1851,  13  D.  1395;  M'Ncllan,  1856, 
18  D.  488).  A  judgment  of  the  Inner  House  under  sec.  6  of  the  1881 
Act  is  final  (44  &  45  Vict.  c.  22,  s.  6  (3)). 

The  expenses  of  an  unsuccessful  petition  may  be  given  against  the 
bankrupt  (see  Cuninqhame,  1822,  1  S.  355;  3faben,  1837,  15  S.  1087: 
Smith,  1860,  22  D.  1078;  cf.  Clarke,  1883,  11  E.  246). 

2.  Award  of  Dischaege. — After  a  deliverance  has  been  pronounced, 
finding  the  bankrupt  entitled  to  his  discharge,  he  must  make  a  declaration, 
or,  if  required  by  tlie  trustee  or  any  creditor,  an  oath,  in  the  terms  prescribed 
by  sec.  147  of  the  Act  of  1856,  viz.  that  he  "has  made  a  full  and  fair 
surrender  of  his  estate,  and  has  not  granted  or  promised  any  preference  or 


SEQUESTEATIOX  231 

security,  nor  made  or  promised  any  payment,  nor  entered  into  any  secret  or 
collusive  agreement  or  transaction  to  obtain  the  concurrence  of  any  creditor 
to  his  discharge."  A  commission  may  be  granted  to  take  such  declaration 
or  oath  if  the  bankrupt  is  at  the  time  beyond  the  jurisdiction  of,  or  is  by 
lawful  cause  prevented  from  coming  before  the  Lord  Ordinary  or  Sheriff 
(ih.;  see  Liddell,  1840,  3  D,  135).  The  Lord  Ordinary  or  Sheriff,  if  satis- 
tied  with  the  declaration  or  oath,  then  pronounces  a  deliverance  discharging 
the  bankrupt  "  of  all  debts  and  obligations  contracted  by  him,  or  for  which 
he  was  liable  at  the  date  of  the  sequestration"  (B.  A.,  1856,  s.  147).  An 
extract  of  the  deliverance,  signed  by  the  Clerk  of  the  Bills  or  Sheriff  Clerk, 
must  forthwith  be  transmitted  to  the  Accountant  of  Court  {ih.) ;  and  an 
abbreviate  thereof,  issued  by  the  Clerk  of  the  Bills  or  the  Sheriff  Clerk, 
must  be  recorded  in  the  Register  of  Inhibitions  and  Adjudications  (20  &  21 
Vict.  c.  19,  s.  7). 

The  deliverance  awarding  discharge  may  be  appealed  within  eight  days 
if  pronounced  by  the  Sheriff,  or  within  fourteen  days  if  pronounced  by  the 
Lord  Ordinary  (B.  A.,  1856,  ss.  170,  171 ;  see  Fcrrier,  1826,  2  W.  &  S.  93) ; 
but  the  prior  deliverance  finding  the  bankrupt  entitled  to  discharge,  is  not 
thereby  brought  under  review  if  not  itself  timeously  appealed  against 
(Alison,  1890,  18  U.  212).  The  discharge  may  be  reduced  on  the  ground  of 
fraud  or  non-compliance  witli  statutory  requirements  {Wylic,  1859,  21  D. 
577),  and  fundamental  statutory  defects  may  be  pled  against  it  without 
reduction  (see  Mdliss,  22  June  1815,  F.  C. ;  Lindmy,  1844,  6  D.  412). 

3.  Ekfects  of  Discharge. — A  discharge  without  composition  does  not, 
like  a  discharge  on  composition,  reinvest  the  bankrupt  in  the  sequestrated 
estate,  whicli  remains  vested  in  the  trustee  for  distrilnition  among  the 
creditors  entitled  to  be  ranked  thereon,  including  all  acquisitions  falling  to 
the  l)ankrupt  prior  to  discharge  (B.  A.,  1856,  ss.  102, 103;  Luchanan,  1865,, 
4  :\I.  135;  Henderson,  1849,  11  D.  1470;  Northern  Hcrit.  Sccur.  Invest.  Co.,. 
1888,  16  R.  100, 18  R.  (H.  L.)  37  ;  Bell,  Com.,  5tb  cd.,  ii.  454).  The  discliarge 
frees  tlie  bankrupt  from  "all  debts  and  obligations  contracted  by  him,  or 
fur  wliich  he  was  liable  at  the  date  of  the  sequestration,"  and  all  property 
subsequently  acquired  by  him  after  discharge  belongs  to  him  free  from 
such  claims.  Thus  the  general  rule  is,  that  a  bankrupt  is  after  discharge 
free  from  all  debts  and  clainis  capable  of  being  ranked  for  in  the  seques- 
tration. 

The  effect  of  discharge  \\\>ini  certain  kinds  of  contingent  liabilities  is 
not  well  defined.  There  seems  to  be  no  doubt  that  there  are  contingent 
lialdlitics  wliere  the  cliance  of  an  active  obligation  emerging  is  so  remote 
and  uncertain,  that  the  creditor  is  not  entitled  to  rank  in  respect  thereof 
on  the  oljligant's  sequestrated  estate.  An  obligation  of  warrandice  forms 
an  example.  The  purchaser  may  have  possessed  peaceably  for  many  years, 
and  there  may  not  be  any  known  ground  for  anticipating  a  challenge  of 
Ills  title,  but  all  the  same  the  seller  lies  under  a  valid  obligation  to 
indemnify  liim  should  eviction  take  place.  If,  in  tliesc  circumstances,  the 
seller  is  scriuestrated,  it  a]»pears  that  the  ])urcliascr  will  not  be  entitled  to 
rank  as  a  contingent  creditor  on  his  cnUiic  (Cardcn,  1860,  22  D.  1190). 
On  t!ie  other  hand,  the  ])urchaser  will  be  entitled  to  rank  if  a  challenge 
has  been  mad.j  bi'.for<!  or  during  the  sultsistenco  of  the  sequestration. 
Thus  wliere  a  purchaser's  title  was,  duriiig  the  subsistence  of  the  seller's 
sef{ueHtration,  cliallenged  in  an  action  which  was  decided  in  the  purchaser's 
favour,  it  was  lield  that  during  tlie  time  allowed  for  ai»i)caling  to  the 
House  of  Lords  the  purchaser  was  entitled  to  rank  as  a  contingent  creditor, 
jJthough  no  appe.il  had  so  far  been  taken  (Garden,  snpra).     Opinions  were 


232  SEQUESTEATION 

reserved  as  to  the  effect  of  discharge  on  an  obligation  of  warrandice  which 
had  not,  throiigh  the  emergence  of  a  challenge,  ripened  into  an  obligation 
capable  of  being  ranked  for.  Another  case  in  which  the  question  under 
notice  arises,  is  that  of  the  liability  of  a  bankrupt  shareholder  of  a  com- 
pany for  future  calls.  Where  discharge  under  cessio  was  obtained  by  a 
partner  of  a  common  law  company  which  was  in  winding-up  prior  to  the 
cessio,  the  discharge  was  held  not  to  release  the  bankrupt  from  liability 
for  a  call  made  by  the  directors  after  the  decree  of  cessio  {Tulloch,  1847, 

9  D.  582).  Where  a  shareholder  in  a  registered  company,  holding  shares 
with  liability  attached,  was  sequestrated,  and  afterwards  reinvested  by 
discharge  on  composition,  the  company  having  made  no  claim  in  the 
sequestration,  the  Court  refused  a  petition  by  the  shareholder  to  have  the 
register  of  the  company  rectified  by  the  removal  of  his  name  therefrom 
(Taylor,  1889,  16  K.  711).  In  England,  however,  it  has  been  held  that  the 
liability  of  a  shareholder  for  future  calls  is  a  debt  capable  of  being  fairly 
estimated,  and  therefore  proveable  under  his  bankruptcy,  and  that  whether 
the  company  be  in  liquidation  at  the  date  of  tlie  bankruptcy  or  be  still  a 
going  concern  {In  re  Mercantile  Mutual  Marine  Insiir.  Assoc.,  25  Ch.  I).  415). 
Where  the  unsuccessful  pursuer  of  an  action  liecame  bankrupt,  and  there- 
after carried  on  proceedings  for  obtaining  a  new  trial  until  he  had  obtained 
discharge  on  composition,  with  the  object  and  effect  of  preventing  his  adver- 
sary from  obtaining  and  ranking  on  a  decree  for  expenses,  he  was  held  liable 
iiher  discharge  in  payment  of  the  whole  costs  of  the  action  {Mackenzie,  1855, 
17  I).  751).  It  is  a  question  how  far  alimentary  claims  ex  jure  nat^ircv  are 
affected  by  discharge.  The  future  currency  of  such  claims,  as  a  rule, 
depends  on  circumstances  which  render  them  incapable  of  fair  estimation, 
so  as  to  allow  of  a  contingent  ranking.  As  to  a  claim  for  aliment  of  an 
illegitimate  child,  opinions  have  varied  as  to  whether  it  is  properly  a  claim 
arising  ex  jure  natures,  or  a  claim  cf  debt.  Such  a  claim  is,  however, 
entitled  to  be  admitted  to  ranking  in  the  sequestration  of  the  father  as  a 
contingent  debt  {Doums,  1886,  13  E.  1101).  No  opinion  was  expressed  in 
this  case  as  to  the  effect  of  discharge  on  such  a  claim.  In  an  earlier  case, 
where  tlie  father  of  an  illegitimate  child  had  granted  a  written  obligation 
for  its  aliment,  and  thereafter  was  sequestrated,  and  the  mother  ranked  for 
the  arrears  due  at  the  date  of  sequestration,  it  was  held  that  the  bankrupt 
was  liable  after  discliarge  for  aliment  accruing  after  the  date  of  sequestra- 
tion {Marjorihanls,  1831,  10  S.  79). 

It  is  a  question  how  far  debts  of  an  alimentary  nature  or  arising  ex 
'Jure  naiurm  are  quoad  the  future  affected  by  discharge  {Marjorihanks,  1831, 

10  S.  79;  see  Tulloch,  supra;  Downs,  1886,  13  E.  1101).  Arrears  of  an 
alimentary  debt,  however,  are  extinguished  by  discharge  (see  Marjorilanls, 
sujjva). 

Discharge  does  not  free  the  bankrupt  from  debt  due  to  the  Crown,  or 
any  del)t  or  penalty  with  which  he  stands  charged  at  the  suit  of  the  Crown, 
or  any  person  for  any  offence  connuitted  against  any  act  or  acts  relative 
to  any  branch  of  the  public  revenue,  or  at  the  suit  of  any  sheriff  or  other 
public  officer,  upon  any  bail-bond  entered  into  for  the  appearance  of  any 
person  prosecuted  for  any  such  offence,  unless  the  Commissioners  of  the 
Treasury  consent  to  such  discharge  (B.  A.,  1856,  s.  148). 

Where  an  action  begun  prior  to  sequestration  is  carried  on  thereafter 
by  the  bankrupt,  he  remains  liable  after  discharge  for  the  whole  costs  if 
awarded  against  him  {Mackenzie,  1855,  17  D.  751 ;  Jackson,  1862,  1  M.  48; 
see  Miller,  1884,  11  E.  729). 

Co-obligants  with  the  bankrupt  in  any  debts  due  by  him  are  not  freed 


SEQUESTliATIOX  233 

bv  his  discharge,  nor  by  the  creditor  in  any  such  debt  assenting  thereto 
(B.A.,  1856,  s.  56). 

4.  Discharge  of  Company  and  Partners. — Where  both  the  firm  estate 
and  the  estates  of  the  partners  as  individuals  are  sequestrated,  discharge 
may  be  granted  to  the  partners  as  such  and  as  individuals,  or  to  them  as 
partners  only  or  as  individuals  only ;  and  one  partner  may  obtain  discharge 
as  a  partner  and  as  individual  although  the  other  partners  do  not  apply 
{Fraser,  27  May  1815,  F.  C. ;  see  How,  1833,  12  S.  211).  A  discharge  of  a 
firm  as  such  is  competent  although  unusual  {Steel,  1855,  18  D.  S-l).  The 
discharge  of  a  partner  as  an  individual  frees  him  both  from  his  partnership 
and  his  separate  obligations  (Bell,  Com.,  ii.  566) ;  but  discharge  as  partner 
only  does  not  free  him  from  the  latter  {ih.;  Melliss,  22  June  1815,  F.  C), 
unless,  perhaps,  in  the  case  of  the  sole  "partner"  of  a  firm  (Bell,  Com.  ii. 
514;  Lineheiy,  1844,  6  I).  412,  per  Ld.  Moncreiti).  Where  a  bankrupt  was 
sole  partner  of  a  sequestrated  firm  and  was  discharged  "  as  partner  "  thereof, 
he  was  held  not  freed  from  liability  on  an  obligation  undertaken  by  him  as 
partner  of  another  and  solvent  firm  {Lindsay,  supra). 

5.  Preferences  and  Collusive  Agreements  for  procuring  Discharge. 
— By  sec.  150  of  the  Bankruptcy  Act,  1856,  it  is  provided  that  "All 
preferences,  gratuities,  securities,  payments,  or  other  consideration  not 
sanctioned  by  this  Act,  granted,  made,  or  promised,  and  all  secret  or  collu- 
sive agreements  and  transactions  for  concurring  in  facilitating  or  obtaining 
the  bankrupt's  discharge,  either  on  or  without  an  ofler  of  composition,  and 
whetlier  the  offer  be  accepted  or  not,  or  the  discharge  granted  or  not,  shall 
be  null  and  void."  (As  to  effect  of  consent  by  trustee  and  creditors,  see 
Thomas,  1872,  11  M.  81.)  The  nullity  attaches  altliough  the  bankrupt  is 
not  himself  an  active  party  in  the  transaction  {Tlioinas,  1872,  11  M.  81). 
If  he  is  "  personally  concerned  in  or  cogni.'^ant  of  the  giantiug,  giving,  or 
])romising  any  preference,  gratuity,  security,  payment,  or  other  consideration, 
or  in  any  secret  or  collusive  agreement  or  transaction  as  aforesaid,  he  shall 
forfeit  all  right  to  a  discharge  and  all  licnefits  under  this  Act;  and  sucli 
discharge,  if  granted,  either  on  or  without  an  ofler  of  composition,  shall  be 
aimulled  ;  and  the  trustee,  or  any  one  or  more  of  the  creditors,  may  apply 
I ty  petition  to  the  Lord  Ordinary  to  have  such  discharge  annulled  accord- 
ingly" {a>.,  s.  151 :  IwjUs,  1843,  5  D.  1029;  L'rovn,  1846,  8  D.  822;  Fen- 
dreiiih,  1875,  2  II.  769";  MCulloeh,  1897,  34  S.  L.  K.  753).  The  provision  as 
to  forfeiture  is  imperative  {Fendreigh).  A  ])etition  for  annulling  a  discharge 
cannot  be  brought  after  the  bankru]>t's  death  {Fae,  1877,  5  Ii.  34). 

No  action  will  lie  in  respect  of  a  transaction  to  wliich  the  statutory 
nullitv  ap].lics  (  Thomn^  1S72,  1 1  ]\r.  81  ;  Kerr,  1828,  6  S.  546  ;  see  Fiddle, 
182 1,"!  S.  145). 

If,  during  the  sequestration,  any  creditor  has  obtained  any  such  prefer- 
ence, gratuity,  etc.,  tiie  trustee  is  entitled  to  retain  bis  dividend,  and  he  or 
any  creditor  rankfd  on  the  estate  may  ])res(.nt  a  petition  to  the  Lord 
(Ordinary  or  Slii'iiff  jiraying  (hat  such  coHiidiiig  creditor  shall  be  found  to 
have  forfeited  his  debt,  and  be  ordained  tn  jiay  to  the  trustee  douhlc  the 
amount  of  the  jn-eference,  gratuity,  etc.,  given,  made,  or  promised;  and  if  no 
cause  be  Khouii  to  tlie  contrary,  decree  is  pronounced  accordingly,  and  the 
sums  wliich  in  such  case  may  be  recovered,  under  deduction  of  the  expenses 
of  recovering  the  sanie,  fall  to  be  distributed  among  the  other  creditors  in 
the  sequestraii'.n  (15.  A.,  1856,  s.  150).  it  will  imi  iirotect  the  creditor 
receiving  the  jtn'tVicMice  from  these  jienal  eoiisciiiiciicf's,  tliatlu!  was  unaware; 
of  its  illegality  and  has  actually  received  no  benefit  from  the  transaction 
(^Thomas,  1872,  11  .M.  81  ;  Fcndrchjh's  Tr.,  9  M.  (IL  L.)  49).     The  prefer- 


234 


SEQUESTEATIOX 


ence,  however,  must  be  one  capable  of  pecuniary  estimation  {Miirdoch,  1864, 
2  M.  515). 

If  the  sequestration  has  been  closed  when  it  is  desired  to  take  action  in 
such  a  case,  it  is  competent  to  any  creditor  who  has  not  received  payment 
of  his  debt  to  raise  a  multiplepoinding  in  name  of  the  person  who  has 
obtained  such  preference,  gratuity,  etc. ;  and,  on  the  value  of  the  preference, 
etc.,  being  ascertained,  double  such  value,  together  with  the  amount  of  the 
debt  of  the  colluding  creditor,  must  be  ordered  to  be  consigned  by  him  and 
be  divided  among  the  creditors  who  were  ranked  or  entitled  to  be  ranked 
in  the  sequestration  and  have  not  received  full  payment  of  their  debts,  and 
who  lodge  claims  according  to  their  respective  rights  and  interests  (B.  A., 
1856,  s.  150  ;  see  Murdoch,  1864,  2  M.  515).  The  multiplepoinding  must 
be  executed  against  the  colluding  creditor,  and  notice  thereof  at  the  same 
time  be  inserted  in  the  Gazette  ■  (ib.).  In  the  event  of  there  being  any 
surplus  after  paying  the  full  debts  of  the  creditors  and  defraying  the  ex- 
I)enses  of  the  sequestration  or  other  proceeding,  it  falls  to  be  paid  into  the 
account  of  unclaimed  dividends  (ih.). 

After  being  discharged  the  iDankrupt  may  legally  undertake  to  pay  a 
debt  which  miglit  have  been  ranked,  but  in  good  faith  was  omitted  to  be 
put  forward  in  the  sequestration  (Hunter,  1835,  13  S.  390 ;  see  Sutherland, 
1830,  8  S.  313;  Halyhurton,  1838,  16  S.  1235;  cf.  Jones,  20  W.  E.  92). 


XIV.  Composition  Contract. 


1.  Offer  and  Acceptance  of  Composi- 

tion   23-t 

2.  Judicial  ApjDroval  of  Composition     236 

3.  Objections  to  Ajiproval  of  Com- 

position     237 


Discharge  of  Bankruj^t  on  Com- 
position  .....     237 
Effects  of  Discharge      .         .         .238 
Payment  of  Composition      .         .     239 
AunuUing  Comjjosition  Contract     240 


The  general  nature  of  this  method  of  winding  up  a  sequestrated  estate 
is  that  the  creditors  agree  to  accept  a  composition  on  the  amount  of  their 
respective  debts,  and  upon  approval  of  the  arrangement  by  the  Court,  the 
debtor  is  discharged  and  thereby  retrocessed  in  his  estates. 

1.  Offer  and  Acceptance  of  Composition. — A  first  offer  may  be 
made  at  the  meeting  for  electing  the  trustee,  or  at  the  meeting  after  the 
bankrupt's  examination,  or  at  any  subsequent  meeting  called  for  the  pur- 
pose by  the  trustee  with  the  consent  of  the  commissioners  (B.  A.,  185G, 
ss.  137,  139 ;  see  Weldon,  1879,  7  E.  235).  If  it  is  made  at  the  meeting 
for  election  of  trustee,  a  resolution  to  entertain  it  must  be  carried  by  a 
majority  in  number  and  nine-tenths  in  value  of  the  creditors  present  who 
have  produced  oath  and  vouchers  (s.  137 ;  Smith,  1848,  10  D.  1474),  and  if 
at  any  subsequent  meeting,  by  a  majority  in  number  and  four-fifths  in 
value  (s.  139 ;  as  to  creditors  entitled  to  vote  and  reckoning  majorities,  see 
ss.  53,  59,  61,  101).  Creditors  present  who  do  not  vote  are  computed  as  if 
voting  against  the  resolution  {M'Kay,  1864,  3  M.  74).  Where  an  offer  has 
been  rejected  or  become  ineffectual,  no  other  offer  can  be  entertained  unless 
nine-tenths  in  number  and  value  of  all  the  creditors  ranked  or  entitled  to 
be  ranked  on  the  estate  assent  in  writing  to  such  offer,  which  must  state 
the  amount  of  composition  and  terms  of  payment,  and  be  subscribed  by  the 
cautioner  proposed  (B.  iV.,  1856,  s.  145). 

The  offer  may  be  made  by  the  bankrupt  or  his  friends,  or  if  he  is  dead, 
by  his  successors  (ss.  137,  139  ;  see  Bell,  Com.,  5th  ed.,  ii.  457,  as  to  offer  by 
bankrupt  carried  through  by  successors),  and  in  case  of  a  company,  by  a 
partner  (s.  137).     The  offer  must  be  to  pay  a  rateable  proportion  per  £  to 


SEQUESTEATIOX  235 

each  of  the  creditors,  not  a  shmip  svmi  (Bell,  Com.  ut  supra);  and  it  seems 
competent  to  adject  a  contingent  offer  to  pay  an  additional  composition 
(MFann,  11  July  1811,  F.  C),  or  to  assign  a  particnlar  estate  as  additional 
security  '{Adam,  1845,  7  D.  276),  though  not  in  part  payment  of  the 
composition  (Bell,  Com.,  5th  ed.,  ii.  458).  The  offer  must  include  all  the 
bankrupt's  creditors,  not  merely  those  actually  claiming  (Bell,  Com.  ih.  457). 
It  cannot  be  withdrawn  without  cause  assigned,  such  as  a  material  change 
of  circumstances  not  attributable  to  the  bankrupt  himself  (Lee,  1883,  11  E. 
26;  see  Ironside,  1841,  4  D.  629 ;  Bell,  Com.,  5th  ed.,  ii.  469).  It  must  be 
accompanied  by  an  offer  of  caution  (B.  A.,  1856,  ss.  137,  139)  for  the  whole 
composition  to^all  the  bankrupt's  creditors  {M'Minn,  1804,  M.  No.  22,  App. 
"Bankrupt";  Livingstone,  1811,  Bell,  Com.  ii.  353  (note);  M Vicar,  1829,  8 
S.  146  (consignation)).  Additional  cautioners  for  separate  parts  of  the 
composition  mav  be  offered  (Bell,  Com.,  5th  ed.,  ii.  461,  note  5  ;  cf.  Handy- 
side,  26  June  1811,  F.  C. ;  Ironside,  1841,  4  D.  629).  And  the  creditors 
may  stipulate  for  security  in  addition  to  caution,  to  be  applied  j;?'0  rata 
(Bell,  Com.  ut  supra;  Aitkcn,  1845,  7  D.  996;  Graij,  1812,  note  to  Bell, 
Com.  ^a  supra;  Adam-,  1845,  7  D.  276).  The  cautioner  may  stipulate  for 
security  by  way  of  conveyance  of  the  estate  to  a  trustee  for  his  behoof. 
His  right  to  withdraw  seems  co-extensive  with  that  of  the  bankrupt  {supra  ; 
Lee,  1883,  11  R  26). 

In  the  case  of  a  firm,  the  offer  may  be  made  by  one  or  more  partners 
(B.  A.,  1856,  s.  137),  and  may  stipulate  for  discharge  to  all  the  partners  or 
only  those  offering  the  coniposition.  Or  it  may  be  accepted  froui  one 
partner,  and  he  alone  be  discharged  while  the  sequestration  continues 
quoad  the  others  {Grant,  21  Dec.  1811,  F.  C),  or  from  all  the  partners 
while  the  sequestration  continues  quoad  the  company  {Smith,  1827,  5  S.  331 ; 
Taylor,  1840,  2  D.  952).  A  partner  offering  may  stipulate  for  an  assigna- 
tion of  the  creditor's  claims  against  the  firm  (see  Shand,  1848,  11  D.  162). 
A  corporate  or  (7?«rtsi-corporate  company  may  be  wound  up  by  composition 
(see  Robertsons,  1831,  5  W.  &  S.  1).  Where  two  firms  with  the  same 
name  and  interests,  but  differing  as  to  their  constituent  meml)ers,  were 
sequestrated,  a  single  coniposition,  or  the  massed  estates  of  both  firms,  was 
held  incompetent  {MLarcn,  1869,  7  M.  926). 

The  offer  cannot  be  accepted  at  the  meeting  at  wliich  it  is  made.  If  it 
is  made  at  the  meeting  for  election  of  trustee,  and  the  creditors  resolve 
to  entertain  it  (see  supra),  the  trustee  forlliwith  advertises  the  fact  in  the 
Gazette,  notifying  that  the  offer  will  be  decided  on  at  the  meeting  after  the 
bankrupt's  examination  (B.  A.,  1856,  s.  137) ;  and  also  sends^  letters  to 
each  of  the  creditors  claiming  or  mentioned  in  the  l)ankru])t's  state  of 
affairs,  giving  them  an  abstract  of  the  state  of  all'airs  and  of  the  valuation 
of  the  estate  {ih.;  see  ^filn,  1845,  7  D.  888;  Smith,  1848,  10  D.  1474). 
An  acceptance  at  the  second  meeting  must  be  l)y  a  majority  in  number  and 
nine-tenths  in  value  of  tlie  creditors  prcspiit  (11  A.,  1856,  s.  138).  A  ]>art- 
ner  has  authority  to  accept  a  composition  on  behalf  of  his  iirni  {Mains, 
1895,  22  K.  3»29).  'I'he  offer  must  be  accepted  according  to  its  terms  {Mih, 
1845,  7  1).  888;  MIntosh,  1846,  18  Jur.  559).  If  the  offer  be  made  at 
the  meeting  after  the  baidcruyit's  examination,  or  any  subsequent  one,  and 
is  entertained,  the  trustee  calls  another  meeting  for  a  day  not  less  than 
twenty-one  days  thereafter,  and  must,  seven  days  prior  thereto,  give  notice 
by  letters  to  all  creditors  claiming  or  mentioned  in  tin'  state  of  affairs. 
Rending  them  an  abstract  of  that  state  and  of  Ihc  valuation  of  the  estate 
(B.  A.7  1856,  s.  139).  An  afeei)tanco  ut  such  meeting  must  lie  by  a 
majority  in  number  and  fuur-fiftlis  in  value  of  the  creditors  present  {ih.). 


236  SEQUESTEATION 

If  a  second  offer  of  composition  be  entertained  (see  as  to  conditions,  supra), 
a  meeting  is  called  in  the  same  way  to  decide  upon  it,  and  an  acceptance 
thereof  must  be  by  a  majority  in  number  and  nine-tenths  in  value  of  the 
creditors  present,  and  must  also  be  expressly  assented  to  in  writing  by  nine- 
tenths  in  value  of  the  creditors  who  have  produced  oaths  entitling  them  to 
be  ranked  (B.  A.,  1856,  s.  145 ;  see  Charles,  1835,  14  S.  139 ;  Forbes,  1836, 
14  S.  380).  Fraud  on  the  part  of  the  debtor,  or  delay  accompanied  by 
material  change  of  circumstances,  will  entitle  the  creditors  to  withdraw  an 
acceptance  (see  Bell,  Coin.,  5th  ed.,  ii.  246).  The  resolution  of  acceptance 
may  be  appealed  against  under  sec.  169  of  the  B.  A.,  1856  {M'George,  1887, 
14  E.  841). 

Following  on  acceptance  of  the  offer,  the  bond  of  caution  must  be 
forthwith  lodged  with  the  trustee  (B.  A.,  1856,  ss.  138,  139,  145;  see 
M-Minn,  Bell,  Com.,  5th  ed.,  ii.  460,  note),  executed  by  the  bankrupt,  or  his 
successors,  or  the  partners  of  a  bankrupt  firm,  as  the  case  may  be,  and  the 
cautioner  or  cautioners  {ibid.).  The  sequestration,  however,  proceeds,  and  the 
trustee  continues  in  the  execution  of  his  duties  as  if  no  offer  had  been  made, 
until  the  deliverance  of  the  Court  discharging  the  bankrupt  is  pronounced 
(B.  A.,  1856,  ss.  142,  140  ;  Latta,  1862,  24  D.  1251,  per  Ld.  J.-CL  Inglis ; 
see  Ncilson,  1843,  5  D.  475). 

2.  Judicial  Approval  of  Composition. — Upon  receiving  the  bond  of 
caution,  the  trustee  m^ust  transmit  to  the  Bill  Chamber  Clerk  or  Sheriff  Clerk 
(whichever  he  may  select)  a  report,  signed  by  him,  of  the  resolution  of  the 
meeting  accepting  the  offer  of  composition,  together  with  the  bond  of  caution 
(B.  A.,  1856,  ss.  138,  139,  145). 

Where  the  offer  accepted  is  a  second  offer,  he  also  instructs  the  necessary 
assents  of  creditors  (see  s.  145  ;  Torry,  1827,  5  S.  765 ;  Ireland,  1834,  13  S. 
223).  The  bankrupt  may  compel  the  trustee  to  make  his  report  {Kemp, 
1832,  10  S.  389.  As  to  effect  of  delay  in  proceedings,  see  Robertson,  1850, 
13  D.  316 ;  Brown,  1846,  8  D.  822).  In  case  of  death  or  incapacity  of  the 
trustee,  the  Court  may,  on  petition,  empower  the  commissioners  to  sign  the 
report  {Guthrie,  1845,  7  D.  637).  The  report,  besides  recording  the  amount 
of  composition,  the  caution  given,  and  the  resolution  of  acceptance  {Lang- 
muir,  1829,  8  S.  12),  usually,  but  not  necessarily,  states  that  the  trustee's 
accounts  have  been  audited  and  the  balance  ascertained,  his  remuneration 
fixed,  and  it,  as  well  as  the  expenses  of  sequestration,  paid  or  provided  for 
(see  Lee,  1883,  11  E.  31,  per  Ld.  Pres.  Inglis).  There  is  also  produced  the 
minutes  of  both  meetings,  a  copy  of  the  Gazette,  and  a  certificate  of  posting 
of  letters  to  creditors  (see  Bell,  Com.,  5th  ed.,  ii.  468). 

Before  approval  of  the  composition  settlement  can  be  obtained,  the 
commissioners  must  audit  the  trustee's  accounts  and  ascertain  the  balance, 
and  also  fix  his  remuneration,  subject  to  review  of  the  Lord  Ordinary  or 
Sheriff,  and  such  remuneration  and  the  expenses  of  the  sequestration  must 
have  been  paid  or  provided  for  to  the  satisfaction  of  the  trustee  and  com- 
missioners (B.  A.,  1856,  s.  141;  see  Broumlee,  1831,  9  S.  384;  Clark,  1843, 
5  D.  772).  An  appeal  to  the  Lord  Ordinary  or  Sheriff  against  the  trustee's 
remuneration  may  be  taken  under  sec.  169  of  the  B.  A.,  1856,  and  must  be 
insisted  in  prior  to  the  deliverance  awarding  discharge  (see  Clark,  1843, 
5  D.  772  ;  Franklin,  1840,  3  D.  188).  An  appeal  may  also  be  taken  to  the 
Accountant  of  Court  under  52  &  53  Vict.  c.  39,  s.  17.  Where  a  former 
trustee  had  resigned  pi-ior  to  the  offer  of  composition,  he  was  held  entitled 
to  have  his  accounts  audited  and  his  remuneration  fixed  and  paid  or  pro- 
vided for  under  the  above  provision  {Miller,  1872,  11  M.  164).  It  is 
sufficient  that  the  trustee  states  that  he  is  satisfied  as  to  the  provision  made 


SEQUESTEATIOX  237 

for  his  remuneration  and  the  expenses  of  sequestration  (see  Ticccdie  18^3 
2  S.  321).  '      "  ' 

3.  Objections  to  Approval  of  Composition. — The  approval  of  the 
composition  may  be  opposed  by  creditors  who  have  lodged  oath  and 
vouchers  (see  Brown,  1846,  8  D.  822;  Scottish  Prov.  Assur.  Co.,  1859,  21  D. 
333  ;  MGeorgc,  1887, 14  It.  841),  and  by  the  trus'ee,  and  apparentlv  also  the 
bankrupt's  cautioner  (see  Miller,  1872, 11  M.  1G4;  Ironside,  1841,4  D.  629  • 
Lee,  1883,  11  E.  26).  The  ground  of  objection  may  be:  (1)  Defect  in  j^ro- 
ceedings,  such  as  bad  votes,  want  of  advertisement  or  notice  to  creditois 
{Brown,  1846,  8  D.  822;  Smith,  1848,  10  D.  1474),  misleading  statements 
by  trustee  to  creditors  {Miln,  1845,  7  D.  888),  delay  accompanied  by 
material  change  of  circumstances  {Broivn,  supra ;  Bohcrtson,  1850,  13  D.  316  ; 
see  Lee,  1883,  11  E.  26);  (2)  fraud  or  collusion,  such  as  secret  preferences 
by  the  bankrupt  {Johnstone,  23  Feb.  1811,  F.  C),  collusion  between  trustee 
and  bankrupt  (see  Urqiihart,  1855,  17  D.  773;  Arnott,  1834,  12  S.  931), 
fictitious  claims  (see  Gordon,  6  July  1839,  F.  C.) ;  (3)  insufficiency  of 
caution  offered  (see  Bell,  Com.,  5th  ed.,  ii.  469);  (4)  unieasonableness  of 
composition  on  its  merits  (B.  A.,  1856,  ss.  138,  139),  as  being,  e.g.,  grossly 
disproportionate  to  the  value  of  the  estate  (see  Arnott,  1834^  12  S.  931  ; 
Kilpatrick,  1827,  5  S.  831),  or  accompanied  by  iujproper  conditions  {Latta, 
1862,  24  D.  1251);  (5)  failure  to  pay  or  provide  for  the  trustee's  remunera- 
tion and  the  expenses  of  the  sequestration  (B.  A.,  1856,  s.  141 ;  see  31'Carter 
1893,  20  E.  1090). 

If  the  Lord  Ordinary  or  Sheriff,  after  hearing  any  objections  l»y 
creditors,  shall  find  that  the  offer  of  composition  with  the  security  has 
been  duly  made  and  is  reasonable,  and  has  received  tlie  requisite  supports 
from  the  creditors,  and  that  the  trustee's  remuneration  and  the  expei;ses 
of  sequestration  have  been  duly  paid  or  provided  for,  he  pronounces  a 
deliverance  approving  of  the  same  (s.s.  138,  139,  141,  145).  If  he  refuses 
approval  or  rejects  the  vote  of  any  creditor,  he  must  specify  the  grounds  of 
such  refusal  or  rejection  (ss.  138,  139,  145). 

4.  Discharge  of  Bankrupt  on  Composition. — On  tlie  deliverance 
being  pronounced  ai)proving  of  the  composition  settlement,  the  bankrupt 
or  other  party  ollering  the  compositinn  makes  a  declaration  or,  if  required 
by  the  trustee  or  any  creditor,  an  oath  before  the  Lord  Ordinary  or  Sherilf 
that  he  has  made  a  full  and  fair  surrender  of  his  estate,  and  has  not  granted 
or  promised  any  preference  or  security,  or  made  or  ])romised  any  jjaymcnt, 
or  entered  into  any  secret  or  collusive  agreement  or  transaction  lo  cibtain 
the  concurrence  of  any  creditor  to  sucli  offer  and  security  (]'.  A.,  1856, 
8.  140.  A  commission  may  be  granted  on  lawful  cause,  ih.).  The  sr.c- 
cessor  of  a  bankru]>t  wlio  dies  before  making  the  declaration  may  make  a 
declaration  of  liis  belief  (see  B.  A.,  1856,  s.  140  ;  City  of  Glasgow  Bank,  1882, 
19  S.  L.  E.  809 ;  Bohcrfson,  1842,  4  J ).  627 ;  I^'ciller,  1842,  4  I).  742). 

Following  on  the  declaration  or  oath,  the  Lord  Ordinary  or  Sheriff' 
X)ronounces  a  deliverance  discharging  the  baid<ru]>t  nf  ,il|  ( Id  its  due  by  him 
at  the  date  of  the  sequestration,  and  declaring  the  secpicstration  to  be  at  an 
end  and  the  bankrn])t  reinvested  in  his  estate,  reserving  always  the  clainis 
of  the  creditors  for  payment  of  the  eonqiosilion  (15.  A.,  1856,  s.  140.  As  to 
deliverance  in  case  of  deceased  debtor,  see  Rohcrtion,  1842,  4  D.  627).  The 
bond  of  caution  is  recorded  in  the  l>of)k8  of  Council  and  Session  or  Sherili" 
Court  liooks,  as  the  cise  may  be,  ;ind  an  extract  of  tlie  deliveiaiice,  signed 
by  the  Clerk  of  the  Bills  or  Sheriff  Clerk,  must  be  forthwith  transmitted  to 
the  Accountant,  who  ]»re8crvcs  the  some  along  with  a  co])y  of  the  pro- 
ceedings in  the  sequestration  transmitted  to  hiiii  (s.    110).     An  alilneviatc 


23.8  SEQUESTPtATIQN 

of  the  deliverance  falls  to  be  recorded  in  the  Register  of  Inhibitions  and 
Adjudications  to  clear  tlie  record  (20  &  21  Vict.  c.  19,  s.  7). 

Tiie  deliverance  awarding  discharge  may  be  appealed  within  eight  days 
if  pronounced  by  the  Sheriff,  or  within  fourteen  days  if  pronounced  by  the 
Lord  Ordinary  (B.  A.,  ss.  170,  171),  the  appealing  days  not  being  cut  short 
by  extract  (Samson,  1849,  11  D.  1208).  Any  creditor  may  appeal  (Scottish 
Prov.  Assnr.  Co.,  1859,  21  D.  333).  Objections  to  the  composition  settle- 
ment cannot  be  raised  under  such  appeal  (ih.). 

A  statutory  restriction  of  the  right  to  discharge  was  introduced  by  the 
Bankruptcy  and  Cessio  (Scotland)  Act,  1881  (44  &  45  Vict.  c.  22),  which 
provides  (s.  6)  that  no  bankrupt  sequestrated  after  the  Act  shall  be 
entitled  to  discharge  unless  it  is  proved  to  the  Lord  Ordinary  or  Sheriff',  as 
the  case  may  be :  (a)  That  a  composition  of  not  less  than  5s.  in  the  £  has 
been  paid  out  of  the  estate,  or  that  security  therefor  has  been  found  to  the 
satisfaction  of  the  creditors ;  or  (h)  that  the  failure  to  pay  5s.  in  the  £  has, 
in  the  opinion  of  the  Lord  Ordinary  or  the  Sheriff,  arisen  from  circum- 
stances for  which  the  bankrupt  cannot  justly  be  held  responsible.  The 
judge  has  power  to  require  the  bankrupt  to  submit  such  evidence  as  he 
may  think  necessary,  and  to  allow  objecting  creditors  proof  (ib.  As  to  ex- 
penses, see  Clarice,  1883,  HE.  246).  A  deficiency  of  composition  may  be 
made  up  l)y  subsequent  payments  so  as  to  entitle  the  bankrupt  to  discharge 
(44  &  45  Vict.  c.  22,  s.  G  (4)). 

5.  Effects  of  Discharge  on  Composition. — Discharge  on  composition 
differs  from  discharge  without  composition  in  this,  that  it  not  only  operates 
as  a  release  of  the  bankrupt  from  his  debts,  but  reinvests  him  in  his  estates 
and  terminates  the  sequestration  (B.  A.,  1856,  s.  140 ;  Holmes,  1829,  7  S. 
535),  no  separate  act  of  retrocession  being  required.  He  has  thus  full  right 
and  title  to  vindicate  his  estates,  and  for  that  purpose  to  take  up  actions 
begun  by  the  trustee  (6'Aa?if?,  1848,  11  D.  162;  Whyte,  1858,  20  D.  971 ; 
see  Fleming,  1876,  4  E.  112.  As  to  riglit  to  sue  party  under  obligation  to 
provide  funds  for  composition,  see  Cunningham,  1895,  3  S.  L.  T.  10).  His 
title  extends  to  funds  omitted  from  his  state  of  affairs,  subject  to  questions 
with  his  creditors  as  to  the  effect  of  such  omission  (Gcddes,  1889, 17  E.  278 ; 
see  Whyte,  1888,  16  E.  95  ;  Baillic,  1835, 13  S.  472),  unless,  perhaps,  where 
the  omission  was  fraudulent  (see  Gcddes,  supra;  Kerr,  1876,  13  S.  L.  E. 
480  ;  Baillie,  1837,  15  S.  893 ;  Bell,  Com.  ii.  368).  In  a  recent  case  it  was 
held  that  a  retrocessed  bankrupt  could  not  claim  from  his  agents  rents 
which  they  had  collected  after  the  date  of  the  sequestration,  and  which  they 
maintained  right  to  retain  against  a  debt  due  by  him  to  them  prior  to 
sequestration  (Stevenson,  Zander,  &  Co.,  1896,  23  E.  496).  The  bankrupt  or 
his  cautioner  may  call  the  trustee  and  his  cautioner  to  account  for  the 
trustee's  intromissions,  notwithstanding  the  trustee's  discharge,  by  petition 
to  the  Lord  Ordinary  or  Sheriff  (B.  A.,  1856,  s.  142 ;  Burns,  1869,  7  M. 
476.     An  ordinary  action  is  incompetent,  Burns,  ib.). 

The  reinvestiture  of  the  bankrupt  is  commensurate  with  the  estate 
vested  in  the  trustee,  and  does  not,  apparently,  subject  him  to  taking  up 
onerous  property,  such  as  a  burdensome  feu,  not  taken  up  by  the  trustee 
(see  Holmes,  1829,  7  S.  535;  Bell,  Com.,  5th  ed.,  413  (6);  Fleming,  1876, 
4  E.  112).  But  where  a  holder  of  partly  paid-up  shares  in  a  company  was 
sequestrated,  he  was  held  not  entitled  after  discharge  to  have  his  name 
removed  from  the  register  (Taylor,  1889,  16  E.  711). 

Securities  held  by  creditors,  as,  e.g.,  heritable  bonds,  or  assignations  in 
security,  are  not  affected  by  the  bankrupt's  reinvestiture.  Where  inhibition 
has  been  used,  and  debts  have  been  contracted  subsequent  thereto,  the  effect 


SEQUESTRATION  239 

is  that  the  inhibitor  is  entitled  to  draw  as  large  a  composition  as  if  the 
posterior  creditors  had  not  been  in  the  field ;  but  in  the  absence  of  such 
subsequent  debts,  the  inhibitor  receives  composition  as  an  ordinary  creditor 
(Bell,  Com.,  5th  ed.,  ii.  47G.  See  Stcicart,  23  Feb.  1813,  F.  C).  Privileged 
debts,  if  not  paid  prior  to  the  acceptance  of  the  composition,  must  be  piid 
in  full  before  any  of  the  instalments  of  composition. 

Neither  the  bankrupt  nor  his  cautioner  is  entitled  to  object  to  any  debt 
given  up  in  the  state  of  affairs  as  due,  or  admitted  without  question  to  be 
reckoned  in  the  acceptance  of  the  ofler  of  composition,  nor  to  object  to  any 
security  held  by  any  creditor,  unless  in  the  oiler  of  comjjosition  such  debt 
or  security  is  stated  as  objected  to,  and  notice  in  writing  is  given  to  the 
creditor  in  right  thereof  (B.  A.,  1856,  s.  143).  Similarly,  the  right  to 
challenge  after  discharge  fraudulent  preferences  granted  by  the  bankrupt 
must  have  been  expressly  and  specifically  stipulated  for  in  the  offer  of 
composition,  and  assigned  to  the  bankrupt  by  the  trustee  (Bell,  Com.,  5th 
ed.,  ii.  458  ;  Adam,  1842,  5  D.  391 ;  Irvincs,  1824,  3  S.  87 ;  see  Smith,  1889, 
16  E.  392).  Notice  of  the  stipulation  for  such  assignation  must  be  given  in 
writing  to  the  particular  creditors  in  question  (see  B.  A.,  185G,  s.  143; 
Adam,  supra). 

A  composition  being,  like  dividend,  payment  of  the  debt  {M'Millan, 
1879,  6  E.  601;  see  Double  Banhing),  discharge  is  effectual  to  exclude  any 
claims  against  the  debtor  which  would  virtually  involve  a  double  ranking,  as, 
e.g.,  a  claim  of  relief  by  a  cautioner  where  the  principal  has  been  ranked  for 
the  debt,  and  received  composition  (see  Bell,  Com.,  5th  ed.,  ii.  442,  474). 
Where  the  holder  of  bills  was  ranked  on  the  bankrupt  estate  of  an 
indorser  and  received  a  dividend,  and  thereafter  received  payment  from 
the  acceptor  of  the  whole  amount  due  on  the  bills,  it  was  held  that  the 
indorser,  after  being  discharged  on  composition,  was  entitled  to  claim 
repayment  of  the  amount  of  the  dividend  {Patten,  1853,  15  D.  617).  A  co- 
obligaut  for  a  debt  is  not  released  by  the  creditor  accepting  a  composition 
from  the  delator,  and  by  the  latter's  discharge  thereon  (B.  A.,  1856,  s.  56). 

A  discharge  to  partners  of  a  firm  does  not  seem  to  discharge  their  lia- 
bilities as  partners  of  another  and  separate  firm,  unless  they  are  discharged 
both  as  partners  and  individuals  {Lindsag,  1844,  6  D.  412). 

6.  Payment  oi'  the  Composition. — The  statutory  composition  contract 
differs  from  an  extrajudicial  one  in  this,  that  after  the  bankrupt's  discharge 
the  creditors  are  restricted  to  their  claim  for  the  composition,  and  cannot, 
on  failure  of  payment,  revert  to  their  original  debts,  which  have  been 
extinguished  by  the  discharge  (B.  A.,  1856,  s.  140;  Sauiidcrs,  1827,  5  S. 
531 ;  see  Composition  Contract,  ante,  vol.  iii.  159). 

It  has  been  already  stated  that  the  offer  of  composition  must  be  to  the 
bankrupt's  whole  creditors  at  the  date  of  sequestration,  not  merely  to  those 
actually  claiming,  the  reason  Ijcing  that  the  bankrupt's  discharge  extends  to 
all  his  debts  existing  at  the  date  of  sequestration.  Accordingly,  every  true 
creditor  of  the  bankru])t,  whether  in  debts  present,  future,  or  contingent,  is 
entitled  to  conposition  (Frrgusson,  183G,  15  S.  25;  Murray,  1836,  14  S.  624; 
Dkh,  1845,  8  D.  1 ;  ntraini,  182:5,  2  S.  495) ;  subject  to  the  constitution,  if 
required  by  the  debtor,  of  illiquid  claims  not  duly  lodged  and  admitted  by 
the  trustee  prior  to  the  conclusion  of  the  composition  settlement  {Ciining- 
ham,  1823,  2  S.  194;  ntcairn,  supra;  Smith,  1828,  6  S.  975).  Debts  given 
up  in  the  state  of  affairs,  or  admitted  in  the  vote  on  the  com]K)sition, 
cannot  be  disjnited  {V>.  A.,  1856,  s.  143;  Murison,  1849,  11  D.  653;  lllavL-, 
1859,  22  D.  215;  Gordon,  1828,  6  S.  393;  see  Hntlnj,  1861,  23  I).  881), 
unless  the  right  of  challenge  has  been  specifically  stipulated  for  with  notice 


240  SEQUESTEATIOX 

to  the  creditors  in  question  {ante,  p.  239;  s.  143;  Adam,  1842,  5  D,  391 ; 
Slllars,  1850,  13  D.  431). 

Secured  creditors  must  deduct  the  value  of  their  securities,  if  unreahsed, 
in  claiming  composition  {M' Bride,  1884,  11  E.  702;  Bell,  Com.,  5th  ed.,  ii. 
474_6);  a  composition  contract  being  construed  as  a  contract  to  pay  com- 
position on  the  debts  as  entitled  to  rank  in  the  sequestration.  There  are 
no  statutory  rules  for  valuing  securities  in  claims  for  composition.  It  has, 
however,  been  said  that  if  the  creditor  proposes  to  put  too  low  a  value  on 
his  security,  the  debtor  will  be  justified  in  redeeming  the  secvirity-subject 
at  the  sum  named  by  the  creditor  (M'Uridc,  supra,  per  Ld.  Pres.  Inglis  and 
Ld.  Shand).  If  the  secured  creditor  delays  to  claim  composition  in 
reliance  upon  the  sufficiency  of  his  security,  the  debtor  may  perhaps  be 
entitled  to  call  upon  the  creditor  "  either,  1st,  to  accept  the  subject  of  security 
as  in  full  value  of  his  claim ;  or,  2nd,  to  bring  the  subjects  to  immediate 
sale,  so  that  their  capacity  to  cover  the  debt  may  be  seen ;  or,  3rd,  to  put  a 
value  upon  the  security,  giving  the  debtor  an  option  either  to  take  it  at  the 
valuation  or  to  leave  it  in  the  hands  of  the  creditor  at  that  value  "  (Goudy 
on  Bankruptcy,  431 ;  Alexander  on  Bankruptcy,  211).  Collateral  securities 
do  not  fall  to  be  deducted  (see  Black,  1840,  2  D.  706). 

Where  l)ills  or  other  documents  on  which  diligence  may  be  done  are 
not  granted  for  the  composition,  execution  against  the  debtor  proceeds 
upon  the  bond  of  caution,  which  contains  a  consent  that  letters  of  horn- 
ing on  six  days'  charge  and  other  legal  execution  may  pass  thereon, 
and  is  registered  in  the  Books  of  Council  and  Session  or  Sheriff  Court 
Books  (according  as  the  composition  has  been  approved  by  the  Lord  Ordinary 
or  Sheriff),  the  extract  being  lent  by  the  trustee  to  any  creditor  requiring  it 
(see  Mackay,  Practice,  8;  B.  A.,  1856,  s.  140;  Bell,  Com.,  5th  ed.,  ii.  471). 
Creditors  holding  liquid  documents  of  debt  or  decrees  obtain  a  warrant  of 
diligence  in  the  Bill  Chamber  on  production  of  the  document  and  the  extract 
bond  (see  Dick,  1845, 8  D.  1).  Creditors  in  illiquid  debts  may  obtain  letters 
of  horning  in  the  Bill  Chamber  on  producing  the  extract  bond  along  with 
evidence  of  their  debts  haviug  been  ranked  {Brown,  11  Feb.  1809,  F.  C. ; 
Atkinson,  1833,  US.  429)  or  given  up  in  the  debtor's  state  of  affairs,  or 
admitted  to  vote  upon  the  acceptance  of  the  composition  (B.  A.,  1856, 
s.  143). 

The  cautioner's  liability  to  creditors  who  have  not  produced  their  oaths 
before  the  date  of  the  deliverance  approving  of  the  composition  is  limited 
to  the  period  of  two  years  from  that  date  (B.  A.,  1856,  s.  144;  Morison, 
1849,  11  D.  653). 

7.  Annulling  Composition  Contracts. — A  reduction  of  a  composition 
settlement  and  the  discharge  following  thereon  may  be  brought  on  the 
ground  of  (1)  incompetency  in  the  x^roceedings,  as,  e.g.,  that  the  offer 
accepted  at  the  second  meeting  of  the  creditors  was  different  from  that 
made  and  entertained  at  the  first  {Mdn,  1845,  7  D.  888) ;  (2)  preferences 
given,  or  collusive  agreements  entered  into  by  the  bankrupt  and  struck  at 
by  sec.  150  of  the  Act  of  1856  ;  (3)  material  error  on  the  part  of  the 
creditors,  induced  by  the  bankrupt's  misrepresentation  (Bell,  Com.  ii.  360  ; 
Stewart,  1836,  14  S.  989  ;  BaUlic,  1837,  15  S.  893).  The  first  of  these 
grounds  is  not  competent  to  the  bankrupt  or  creditors  who  participated  in 
the  proceedings  challenged  (Bell,  Com.,  5th  ed.,  ii.  476-7  ;  Buchanan,  1829, 
8  S.  201). 

The  action  of  reduction  must  be  directed  not  only  against  the  bank- 
rupt, but  also  against  the  trustee,  and  the  creditor  who  claimed  in  the 
sequestration  ;  and  the  cautioners  for  the  composition  should  also  be  called 


SEQUESTEATION  241 

(see  Stcirart,  1836,  14  S.  989).  A  reduction  at  the  instance  of  the  whole 
creditors  sets  aside  tlie  composition  settlement  in  toto,  and  should  be 
t'ollowed  by  a  petition  for  revival  of  the  se(iuestration  by  having  a  new 
trustee  elected  (Bell,  Com.  xd  supra  ;  Goudy  on  Banl^niptaj,  p.  433  ;  lee  ante, 
p.  193,  as  to  petition  for  election  of  new  trustee).  A  reduction  by  an' 
individual  creditor  apparently  has  effect  only  quoad  his  own  interest, 
restoring  him  to  his  original  position  as  creditor  in  his  full  clahn  ac^ainst 
the  bankrupt  {Baillie,  1837,  15  S.  893).  ° 

Obligations  undertaken  by  the  bankrupt  after  discharge  for  payment  of 
any  of  his  creditors  in  full  are  quite  unobjectionable,  provided  they  are  not 
the  result  of  secret  agreements  prior  to  discharge  {Grimshaw,  1842,  4  D. 
1360;  Clark,  1869,  7  M.  335;  see  Roij,  1831,  9  S.  766;  Hunter,  1835,  13 
8.  390). 

XY.  Deed  of  Arrangement. 

This  mode  of  terminating  a  sequestration  was  first  introduced  by  the 
Bankruptcy  Act,  1856. 

At  the  meeting  for  election  of  the  trustee,  or  any  subsequent  one  called 
for  the  purpose,  a  majority  of  the  creditors  in  number  and  four-fifths  in  value 
(see  sec.  101),  present  or  represented  at  the  meeting,  may  resolve  that  the 
estate  be  wound  up  in  this  form,  and  that  an  apphcation  be  made  to  the 
Lord  Ordinary  or  Sheriff*  to  sist  procedure  for  not  more  than  two  months 
(B.  A.,  1856,  s.  35).  At  this  stage  the  character  of  the  arrangement  cannot 
be  determined  on  {Dixon,  1867,  5  M.  1033).  The  bankrupt  or  anyone 
appointed  by  the  meeting  may  report  the  resolution  to  the  Lord  Ordinary  or 
Sheriff' within  four  days,  and  crave  a  sist  (s.  36).  The  limit  of  time  is  impera- 
tive (s.  39).  The  judge  hears  parties  interested,  and  may  grant  the  applica- 
tion if  satisfied  that  the  resolution  is  reasonable,  and  may  on  the  application 
of  any  creditor  make  such  arrangement  for  interim  management  as  appears 
necessary  and  reasonable  (ss.  36,  37;  see  Douglas,  1859,  21  D.  1302;  Dixon, 
1867,  5  M.  1033). 

Following  on  the  sist,  the  creditors  may  at  any  time  within  the  period 
thereof  produce  to  the  judge  a  deed  of  arrangement  signed  by,  or  liy 
autliority  of,  four-fifths  in  number  and  value  of  the  creditors  of  the 
bankrupt  (and  the  Ijankrupt);  which  is  considered  and  intimated  to  all 
non-concurring  creditors  {North  of  Scotland  Banlinr/  Co.,  8  11.  117,  per 
Ld.  Shand),  and  parties  are  heard  thereon ;  and  if  the  Lord  Ordinary  or 
Sheriff  is  satisfied  that  it  has  been  duly  entered  into  and  executed  and  is 
reasonable  (see  Dour/las,  1859,21  D.  1302,  as  to  examining  bankrupt),  lie 
ayiproves  thereof  and  declares  the  sequestration  at  an  end,  the  deed  l)eing 
thereafter  binding  on  all  the  creditors  as  if  they  had  all  acceded  thereto 
(B.  A.,  1856,  s.  38).  lu  practice,  intimation  of  application  for  approval  is 
given  to  non-concurring  creditors  by  Gazette  notice  and  circular,  and  tlie 
bankru})t  emits  a  declaration  that  his  state  of  affairs  is  true,  tlie  list  of 
creditors  therein  correct,  and  that  there  are  no  non-concurring  creditors 
other  than  those  to  whom  circulars  have  been  sent  (Ooudy  on  L'ankei/.  4:'A)). 
The  creditors  signing  are  those  wlio  have  lodged  tlicir  oaths  and  voncliers 
with  the  trustee,  or,  if  no  trustee  has  Ijccu  elected,  those  who  produce 
them  in  j)roce.ss  (see,  however,  Xortlt  of  Scotland  Lanlcinu  ^'^•»  supra). 

The  deliverance  declaring  the  sequestration  at  an  end  must  be  recorded 
in  the  same  manner  as  if  tlie  sequestration  had  Ijeen  recalled  (ss.  40,  31). 

Tf  the  resolution  to  wind  up  is  not  duly  ]-epf)rteil,  or  if  a  sist  is  refused, 
or  if  the  deed  of  arrangement  is  not  duly  i)roduced  or  is  not  ajiprovcd  of  by 
the  Lord  Ordinary  or  Sheriff",  the  sequestration  goes  on,  it  lieing  provided 

S.  E.  — VOL.  XI.  IG 


242:  SEQUESTRATION 

that  the  interval  of  time  subsequent  to  the  resokition  is  not  to  he  reckoned 
in  calculating  periods  of  time  prescribed  by  the  Act,  and  power  being  given 
to  the  Lord  Ordinary  or  the  Sheriff  to  make  all  necessary  orders  by  appoint- 
ing meetings  of  creditors  and  others  for  resuming  the  necessary  procedm-e 
in  the  sequestration  (B.  A.,  1856,  s.  39). 

The  statute  j)i'escribes  no  form  of  the  deed  of  arrangement.  It  may  be 
by  way  of  a  composition  settlement  (23  &  24  Vict,  c  33,  s._5;  see  form 
given  ante,  vol.  iv.  128).  It  may  provide  for  the  realisation  and  dis- 
tribution of  the  estate  by  the  creditors  or  by  a  trustee,  or  for  the  reinvesti- 
ture  of  the  bankrupt  in  consideration  of  an  agreement  to  pay  composition. 
Where  the  arrangement  is  on  composition,  failure  to  pay  the  composition 
revives  the  original  debts  of  the  creditors  in  full  (Alexander,  1873,  1  IL 
185).  Caution  for  the  composition  is  not  a  necessary  requisite.  A  dis- 
charge to  the  bankrupt  by  the  deed  may  or  may  not  be  granted  according 
to  the  arrangement.  The  statute  contains  no  provision  for  discharge 
applicable  to  winding  up  by  deed  of  arrangement.  A  partner's  affairs  may 
apparently  be  wound  up  by  deed  of  arrangement  while  the  sequestration 
subsists  quoad  the  firm,  as  in  the  case  of  a  composition  (see  Murdoch  on 
BanJcruptcy,  252). 

Eight  to  challenge  preferences  is  not,  without  express  assignment,  con- 
ferred on  the  bankrupt  by  reinvestiture  under  a  deed  of  arrangement,  nor 
on  a  purchaser  of  the  sequestrated  estate  (Bell,  Com.,  5th  ed.,  ii.  458-9 ; 
S7nith  &  Co.,  1889,  16  E.  392).  Where  the  creditors  retain  the  estate  for 
realisation,  they  are  entitled  to  challenge  preferences  notwithstanding  the 
declared  termination  of  the  sequestration  (B.  A.,  1856,  s.  38). 

XVI.  Judicial  Peoceedings. — Appeals. 


1.  Generally 242 

2.  Appeals  in  Sequestration     .         .     244 

(a)  Against Kesolutions  of  Credi- 
tors and  Deliverances  by 
Trustee  and  Commissioners  244 


(b)  Appeal  from  Sheriff    .         .     245 

(c)  Appeal  from  Lord  Ordinary    246 
((/)  Appeal  to  House  of  Lords  .    246 


1.  Generally. — The  jurisdiction  of  the  Court  of  Session  and  Bill 
Chamber  in  applications  for  sequestration  has  been  already  dealt  with 
(ante,  p.  167). 

The  jurisdiction  of  both  Courts  in  regard  to  sequestration  is  in  the  first 
instance  purely  statutory,  and  can  only  be  exercised  in  conformity  with  the 
rules  prescribed  by  the  statutes.  In  matters  of  procedure  not  provided  for 
by  the  statute,  however,  the  ordinary  jurisdiction  and  practice  of  the  Court 
will  be  applied  in  w^orking  out  the  statutory  proceedings.  Thus  the 
ordinary  rules  as  to  reponing  by  reclaiming  note  against  decrees  in  absence 
in  the  Court  of  Session  were  held  applicable  to  a  deliverance  of  the  Lord 
Ordinary  discharging  a  trustee  in  the  absence  of  objections  {Lindsay,  1879, 
6  E.  1246).  Again,  proceedings  instituted  between  the  trustee  and  third 
parties  outside  the  sequestration  follow  the  common  law  forms  (see  Bell, 
Com.,  5th  ed.,  ii.  481 ;  MRae,  1823,  2  S.  417;  cf.  Paid,  4  S.  424,  for  case 
of  summary  petition). 

Besides  its  statutory  jurisdiction,  the  Court  of  Session  is  by  virtue  of  its 
inherent  jurisdiction  accustomed  to  exercise  a  nolile  ojiciiun  in  providing  a 
remedy  in  cases  where  errors  in  the  sequestration  proceedings  require  to  be 
rectified,  or  where  some  special  procedure  not  provided  for  by  the  Act  is 
called  for,  as,  c.r/.,  where  Gazette  notices  have  not  been  duly  inserted  {Garden, 
1848,  10  D.  1509;   Boss,  1852,  14  D.  546;    Von  Rothcrg,  1876,  4  E.  263; 


SEQUESTRATION  243 

Myles,  1893,  20  E.  818),  or  the  abbreviate  of  sequestratiuii  has  not  been 
recorded  {A.  B.,  1858,  21  D.  24;  Morruon,  1874,  1  IJ.  392  :  Harrison  1880 
18  S.  L.  E.  187 ;  Starl:,  1886,  23  S.  L.  E.  507),  or  where,  after  discharge  of 
the  trustee,  the  sequestration  has  to  be  revived  by  appointing  a  new  trustee 
to  realise  and  distribute  assets  which  have  emerged  (y%o??z.so«,  1863  2  M 
325;  AsscU  Co.,  1880,  23  S.  L.  E.  276;  Younr/,  1888,  16  E.  92;  Northern 
Herit.  Sccur.  Co.,  1888,  16  E.  100,  and  18  E.  (H.  L.)  37 ;  Drylrough,  1893 
20  E.  396 ;  Macduff,  1892,  20  E.  101).  Again,  where  the  whole  documents 
in  the  hands  of  a  trustee  in  sequestration  had  been  lost,  the  Court  on 
petition  made  orders  enabling  claims  to  be  called  for  anew  and  the 
sequestration  to  proceed  (Skirvin/j's  Tr.,  1883,  11  E.  17;  cf.  Aiiderson, 
1884,  11  E.  405,  where  principal  petition  lost).  Where  a  trustee  has  died 
or  disappeared  so  that  a  report  cainiot  be  obtained  as  rei^uired  for  the 
bankrupt's  discharge,  the  Court  will  remit  to  the  Accountant  and  accept 
his  report  in  lieu  of  one  by  tlie  trustee  (  White,  1893,  20  E.  600  ;  3feldriim, 
1895,  2  S.  L.  T.  406).  The  exercise  of  the  7iohilc  ojicium  is  peculiar  to 
the  Inner  House  of  the  Court  of  Session  (Shaiv,  1884,  11  E.  814;  Hutton, 
1872,  10  M.  620;  see  Jiankine,  1871,  9  M.  1053),  though  a  remit  may  be 
made  to  the  Lord  Ordinary  or  Sheriff  to  give  effect  to  it. 

TJie  judges  of  the  Court  of  Session  are  empowered  to  pass  Acts  of 
Sederunt  for  carrying  out  the  purposes  of  the  statute  in  certain  respects 
(B.  A.,  1856,  s.  185).  Three  Acts  have  been  so  passed:  (1)  An  Act  of 
25th  Nov.  1857,  as  to  judicial  factors  appointed  for  winding  up  the  estates 
of  deceased  persons  (see  "  Deceased  Debtor  ").  (2)  An  Act  of  26th  May 
1859,  for  regulating  proceedings  in  sequestrations  awarded  before  1st  Nov. 
1856.     (3)  An  Act  of  22nd  Dec.  1882,  anent  cessios. 

The  proceedings  in  a  sequestration  form  one  process,  and  there  should 
be  one  common  inventory  for  the  whole,  and  not  a  separate  inventory  for 
each  different  proceeding  (see  Caminlell,  1856,  18  D.  843 ;  Kerr,  1845,  7  D. 
809;  B.  A.,  1856,  s.  43).  Proceedings  in  the  Bill  Chamber  are  regulated 
by  Bill  Chamber  rules  so  far  as  applicable  {Scott,  1848,  10  D.  732;  B.  A., 
1856,  s.  43) ;  and,  similarly,  proceedings  in  the  Sheriff  Court  follow  the 
ordinary  rules  in  that  Court  so  far  as  not  displaced  by  statutory  provision 
(see  sec.  43). 

All  conveyances,  assignations,  instruments,  discharges,  writings  or 
deeds  relating  solely  to  the  estate  belonging  to  any  bankrupt  against  whom 
sequestration  has  been  or  may  be  awarded,  and  which,  after  the  execution 
of  such  conveyances,  assignations,  etc.,  is  and  remains  the  property  of  such 
bankrupt  for  the  benefit  of  his  creditors,  or  the  trustee  under  the  sequestra- 
tion, and  all  discharges  to  such  l)aid':rui)t,  and  all  deeds,  assignations, 
instruments,  or  writings  for  reinvesting  such  bankrupt  in  the  estate,  and 
all  powers  of  attorney,  commissions,  factories,  oaths,  affidavits,  articles  of 
roup  or  sale,  submissions,  decrees-arbitral,  and  all  otlier  instruments  and 
writings  whatsoever  relating  solely  to  the  estate  of  sueli  bankrujtt,  and  all 
other  deeds  or  writings  forming  a  part  of  the  [)roceedings  ordered  under 
such  sequestration,  are  exempt  from  all  stamp  duties  or  other  Government 
duty  (B.  A.,  1856,  s.  184;  20  &  21  Vict.  c.  19,  s.  10;  23  «&  24  Vict.  c.  33, 
s.  8). 

All  deliverances  under  the  Bankruptcy  Act  purporting  to  be  signed 
by  the  Lord  Ordinary  or  liy  any  of  the  judges  of  tlie  Court  of  Session,  or 
by  the  Sheriff,  as  well  as  all  extracts  or  copies  thereof,  or  from  the  Books 
of  tlie  Court  of  Session  or  tlie  Sheriff  Court  ])urporting  to  be  signed  or 
certified  by  any  Clerk  of  Court,  or  extracts  from  or  co])ies  of  registers  pur- 
porting to  be  made  by  the  Keeper  thereof,  or  ICxtraclor,  must  be  jiulicially 


244  SEQUESTRATION 

noticed  by  all  Courts  and  judges  in  England,  Ireland,  and  Her  Majesty's 
other  dominions,  and  be  received  as  primd  facie  evidence,  without  the 
necessity  of  jiroviug  their  authenticity  or  correctness,  or  the  signatures 
appended,  or  the  official  character  of  the  persons  signing,  and  are  sufficient 
warrants  for  all  diligence  and  execution  by  law  competent  (B.  A.,  1856, 
8.  174). 

All  deliverances,  bonds,  schedules,  and  executions  under  the  Bankruptcy 
Act  may  be  either  printed  or  in  writing,  or  partly  both ;  and  service  or 
citation  may  be  made  by  a  competent  officer  without  witnesses  (ib.,  s.  175, 
s.  43).  Citation  may  be  made  in  terms  of  the  Citation  Amendment  Act, 
1882  (see  Lochhead,  1883,  21  S.  L.  K.  144). 

Processes  of  sequestration  do  not  fall  asleep  (B.  A.,  1856,  s.  43). 
The  computation  of  time  under  the  Bankruptcy  Acts  is  regulated  by 
sec.  5  of  the  Bankruptcy  Act,  which  provides  that  periods  of  time  are  to 
be  reckoned  exclusive  of  the  day  from  which  such  period  runs  (see  Wilson, 
1891,  19  E.  219 ;  Mylcs,  1893,  20  K  818). 

2.  Appeals  in  Sequestration. — (a)  Ap^ycal  against  Resolutions  of  Creditors 
and  Deliverances  of  Trustee  and  Commissioners. — A  general  right  of  appeal 
against  such  resolutions  and  deliverances  is  given  by  sec.  169  of  the  Act  of 
1856.  The  appeal  may  be  taken  either  to  the  Lord  Ordinary  on  the 
Bills  or  the  Sheriff,  by  a  note  of  appeal  lodged  with  and  marked  (see 
Inglis,  1864,  2  M.  882)  by  the  Bill  Chamber  Clerk  or  Sheriff  Clerk,  within 
fourteen  days  from  the  date  of  the  meeting  at  which  the  resolution  was 
passed,  or  the  date  of  the  deliverance,  as  the  case  may  be.  Where  appeals 
are  taken  both  to  the  Lord  Ordinary  and  to  the  Sheriff,  the  later  in  date  is 
usually  remitted  to  the  judge  before  whom  the  earlier  has  been  brought 
(see  M'Cuhbin,  1856,  18  D.  1219).  There  is  no  statutory  form  of  note  of 
appeal.  It  should  set  forth  the  resolution  or  deliverance  in  question,  and 
state  in  what  respect  it  is  complained  of  (see  form  appended ;  Taylor,  1840, 
2  D.  512;  Somcrville,  1859,  21  1).  467;  Hall,  1866,  5  M.  57). 

There  must  be  a  formal  resolution  or  deliverance  to  make  an  appeal 
competent  {Robertson,  1842,  5  D.  304;  Henderson,  1849,  11  D.  1470). 

The  appeal  may  be  taken  by  individual  creditors,  the  bankrupt,  or  the 
trustee  or  commissioners,  according  to  the  interests  infringed  {3I'Cnbbin, 
1856,  18  1).  1219 ;  Robertson,  1885,  13  R  424;  MGeorge,  1887,  14  E.  841). 
The  Lord  Ordinary  or  Sheriff  orders  a  copy  of  the  note  of  appeal 
to  be  served  on  the  respondent  or  his  mandatory  or  known  agent  (Riving, 
i860,  22  D.  354),  and  appohits  the  respondent  to  appear  at  a 
specified  diet  within  such  period  as  may  be  reasonable.  A  new  diet  may 
be  ordered  where  necessary  (Aberdec7i  Rank,  1859,  22  D.  162;  Dovglas, 
1842,  5  D.  335).  In  the  case  of  deliverances,  the  note  of  appeal  should  be 
served  upon  the  trustee,  and  also,  where  the  deliverance  is  one  sustaining 
a  claim,  against  the  creditor  in  the  claim  (Skinner's  Tr.,  1887,  14  E.  563). 
In  the  case  of  resolutions  of  creditors,  the  note  of  appeal  should  be  served 
upon  the  creditors  who  voted  for  the  resolution,  and  also  the  trustee  and 
the  bankrupt,  if  their  interests  are  involved  (see  Aberdeen  Rank,  1859,  22  D. 
162;  cf.  Smith,  1848,  10  D.  1474).  Separate  appearances  for  respondents 
will  not  be  allowed  in  the  absence  of  distinct  separation  of  interests 
(Cookso7i,  1864,  2  M.  662). 

At  the  diet  of  compearance  the  Lord  Ordinary  or  Sheriff  must  hear 
parties  viva  voce.  The  Lord  Ordinary  then  proceeds  to  dispose  of  the  case 
with  or  without  a  record,  as  he  considers  best.  A  record  is  usually  made 
up.  The  Sheriff  may  decide  without  a  record,' provided  he  specifies  the 
facts  and  assigns  his  grounds  of  judgment;  but  if  he  sees  cause  he  may 


SEQUESTEATIOX  245 

order  minutes  to  be  lodged  by  the  parties,  containing  their  averments  in 
fact  and  pleas  in  law  without  argument,  and  hold  the  same  as  a  closed 
record,  and  proceed  in  a  summary  way ;  and  in  pronouncing  his  judgment 
he  must  assign  his  reasons  (s.  169 ;  Davidson,  1863,  1  M.  635).  "Where 
minutes  are  lodged,  they  represent  the  final  statements  and  pleadings 
of  parties  (see  Orel,  1846,  8  D.  1011). 

Where  an  appeal  is  taken  against  a  resolution  of  a  meeting  of  creditors, 
it  is  competent  to  the  Lord  Ordinary  or  the  Sheriff,  as  the  case  may  be,  to 
order  a  new  meeting  to  be  held  in  order  to  reconsider  the  resolu- 
tion (s.  169). 

The  effect  of  an  appeal  is  to  subject  the  resolution  or  deliverance  to 
review,  both  on  its  competency  and  on  its  merits  {Somcrville,  1859,  21  D. 
467;  Steele,  1865,  3  M.  587).  The  Court  rarely  interferes,  however,  in  a 
mere  question  as  to  the  discretion  of  the  creditors  in  managing  the  estate 
(Bell,  Com.,  5th  ed.,  ii.  411,  412;  Wcldon,  1879,  7  11  235;  see  Marshall  & 
Aitken,  1889,  16  E.  895). 

It  is  apparently  competent  to  set  aside,  on  the  ground  of  fraud  or  other 
radical  nuUitv,  a  resolution  wliich  has  not  been  timeously  appealed  against. 
{Walker,  1835,  14  S.  99). 

(ft)  Appeal  from  Sheriff. — It  is  competent  to  bring  under  the  review  of 
the  Inner  House  of  the  Court  of  Session,  or  of  the  Lord  Ordinary  on  the 
lUUs  in  time  of  vacation,  any  deliverance  of  the  Sheriff,  after  the  sequestra- 
tion has  been  awarded  (except  where  the  same  is  declared  not  to  be  subject 
to  review),  by  note  of  appeal  lodged  with  and  marked  by  the  Sheriff  Clerk 
within  eight  davs  from  the  date  of  the  deliverance  (B.  A.,  1856,  s.  170;. 
see  B.  A.,  1860,"'s.  4;  Tcnncnt,  1878,  5  E.  433;  Marr  &  Sons,  1881,  8  E. 
784).  There  is  no  intermediate  appeal  from  the  Sheriff-Substitute  to  the- 
Sheriff  (see  Bedelcrsion,  1841,  3  D.  597;  B.  A.,  1856,  s.  4).  An  appeal 
depending  when  the  Court  rises  will  be  remitted  to  the  Lord  Ordinary  on 
the  Bills  (see  Ifain,  1853,  16  D.  179);  wliile  one  originating  but  not  dis- 
posed of  during  vacation,  proceeds  before  the  Inner  House  during  session 
{Westlanel,  1840,  3  D.  83 ;  Gremt,  1859,  22  I).  51).  Every  judgment  may 
be  appealed  unless  the  statute  has  excluded  review  {Latta,  1865,  3  M.  508; 
Davis,  1866,  5  M.  80;  Metrr  &  Sons,  1881,  8  E.  784;  Scott,  1885,  12  E. 
540).  Thus  while  a  deliverance  awarding  sequestration  is  not  sulijcct  to 
review,  one  refusing  sequestration  is  {Marr  tO  Sons,  snjira).  Again,  while  a 
deliverance  declaring  the  trustee's  election  is  final,  all  interlocutory  judg- 
ments in  the  course  of  a  competition  for  the  office  may  be  appealed 
{Tennent,  supra  ;  Wylie,  1884,11  E.  820;  Moncnr,  1887,  14  E.  305:  see 
Gait,  1880,  7  E.  888).  An  appeal  against  an  interlocutor  does  not  subject 
to  review  prior  substantive  deliverances  (Scottish  Provincial  Assnrance 
Co.,  1859,  21  D.  333;  Alison,  1890,  18  \l.  212;  cf.  FUlinrj,  1857,  19 
D.  938). 

Eeiiditig  appeals,  the  Sheriff  may  grant  such  orders  as  may  be  necessary 
to  regulate  the  interim  ])ossesRion  and  administration  of  tlie  estate  (s.  172; 
see  iVatson,  1848,  10  1 ).  I  111;  M'lXelletn,  1856,  18  D.  488). 

There  is  no  statutoiy  form  of  note  of  ai)])eal.  It  must  contain  tlie 
name  of  the  a])p('llant  and  the  name  of  the  process  of  sequestration,  and 
mention  the  (Idiverance  appealed  against  (see  form  a[)pended ;  Ewivg, 
1860,  22  1).  354).  When  lodged,  it  must  be  forthwith  transmitted  by  the 
Sheriff  Clerk  to  the  ?>ill  Chamber,  along  with  the  process  (s.  170). 

Where  an  af)]ieal  involves  a  scrutiny  of  the  votes  given  at  a  meeting,  it 
is  ajiy)arently  c()ni[)etent  for  the  respondent  to  challenge  votes  witliout 
bringing  a  counter  appeal  {Hay,  1850,  12  D.  676  ;  see  Dycc,  1847, 9  D.  993  ; 


.240  SEQUESTP.ATION 

cL  Forles,  1851,' 13  D.  1272),  provided  he  objected  to  them  before  the 
Sheriff  {MCuUin,  1856,  18  D.  1219;  see  Meiklc,  1884,  11  E.  867).  A 
respondent,  in  an  appeal  to  the  Sheriff,  wlio  does  not  appear  after  due 
notice,  cannot  appeal  against  the  Sheriff's  judgment  {ih.).  Where  the 
Sheriff  allowed  a  proof  before  answer,  a  party  who  at  first  took  part  in  the 
proof  was  held  barred  hoc  statu  from  an  appeal  against  the  deliverance 
while  the  proof  was  not  concluded  {Kerr,  1849,  11  D.  691). 

Upon  hearing  any  appeal,  the  Inner  House  or  Lord  Ordinary  on  the 
Bills,  as  the  case  may  be,  may  remit  to  the  Sheriff' with  instructions  (s.  170). 

(c)  Appeal  from  the  Lord  Ordinary.— Where,  any  judgment  of  the  Lord 
Ordinary  on  the  Bills  is  to  be  brought  under  review  of  the  Inner  House,  it 
must  be  done  by  reclaiming  note  in  common  form,  presented  within  fourteen 
days  from  the  date  of  the  judgment,  and  the  reclaiming  note  must  be  dis- 
posed of  as  speedily  as  the  forms  of  Court  will  allow  (B.  A.,  1856,  s.  171). 
Such  reclaiming  notes  go  to  the  Sammar  Eoll.  The  provisions  of  the  Court 
of  Session  Act,  1868,  do  not  apply  to  proceedings  under  the  Bankruptcy 
Acts.  Thus  interlocutory  judgments  may  be  reclaimed  against  without 
leave  {MGcorge,  1887,  14  Pi.  841 ;  see  also  Davis,  1866,  5  M.  80  ;  Alison, 
1890,  18  R.  212).  Where  the  reclaiming  days  expire  in  vacation,  the.  note 
must  be  lodged  on  the  first  ensuing  box  day  {Joel,  1860,  22  D.  357). 

The  right  of  fixing  the  Division  lies  with  the  reclaimer  where  the 
appeal  is  in  a  sequestration  originating  in  the  Sheriff  Court  {Goic,  1862, 
1  M.  25).  Where  a  petition  for  sequestration  is  presented  in  tlie  Bill 
Chamber,  the  Bankruptcy  Act  (s.  21)  makes  it  imperative  that  the  Division 
of  the  Court  to  which  it  is  appropriated  shall  be  marked  thereon,  and 
reclaiming  notes  in  proceedings  under  the  petition  must  be  presented  to 
that  Division  (see  opinions  in  Gow,  supra).  In  one  case,  however,  wliere  a 
petition  had  been  marked  to  the  First  Division,  and  a  reclaiming  note  in 
an  appeal  under  it  was  pending  before  that  Division,  and  where  a  petition 
for  recall  was  presented  to  the  Lord  Ordinary,  and  his  judgment  refusing 
recall  was  reclaimed  to  the  Second  Division,  the  Court  refused  to  sustain 
in  the  Single  Bills  an  o1)jection  stated  to  competency,  on  the  ground  of  the 
appropriation  of  the  proceedings  under  the  original  petition  to  the  First 
Division,  and  sent  the  case  to  the  Summar  Roll,  reserving  the  question  of 
contingency  {Cooper,  1877,  5  R.  414). 

{d)  Appeal  to  House  of  Lords. — Appeal  is  competent  in  all  cases 
according  to  tlie  ordinary  conditions  and  rules  of  appellate  procedure,  save 
where  such  appeal  is  excluded  by  the  terms  of  the  Bankruptcy  Acts  (see 
B.  A.,  1850,  s.  173).  Where  an  appeal  is  taken,  it  is  provided  that  "  the 
sequestration  shall,  in  all  respects  not  inconsistent  with  or  injurious  to  the 
interests  which  may  be  affected  by  the  appeal,  proceed  without  interruption, 
and  the  Lord  Ordinary  shall  make  such  orders  as  may  be  necessary  to 
regulate  the  interim  possession  and  management  of  the  estate,  and  which 
orders  shall  not  be  subject  to  ap})eal"  (;7).). 

XVII.  The  Trustee. 


1.  Powers  and  Li  il>i]Lties  .         .     246 

2.  Remuneration       ....     249 

3.  Removal  and  Resignation     .         .249 


'D' 


4.  Discharge — 

((()  Where    Estate    wound    \\]y 

on  Dividend     .         .         .     250 
(//)  "Wliere Composition  Contract    251 

1.  Powers   and    Liabilities.— The  qualifications  and  election  of   the 
trustee  have  been  already  dealt  with  {ante,  pp.  190,  192). 

"  The  nature  of  the  trustee's  office  has  been  succinctly  described  by  Bell. 


SEQUESTEATIOX  247 

*He  is  the  trust  proprietor  and  manager  of  the  estate  and  eflects;  the 
judge  in  the  first  instance  of  all  claims  of  debt  and  of  preference,  and  the 
<.listributor  of  the  divisiljle  fund.'  The  trustee  is  thus  at  the  same  time 
both  a  representative  agent  and  a  judge ;  an  agent  in  so  far  as  the  creditors 
a,s  a  body  are  concerned,  acting  for  them  in  their  transactions  with  third 
parties,  enforcing  their  legal  claims  and  fulfilling  their  legal  obligations;  a 
judge  in  so  far  as  the  creditors  as  individuals  are  concerned,  deciding  j^jWw(£ 
instantia  upon  their  claims  to  share  in  the  estate,  and  their  rights  and 
l)references  inter  se.  But  at  the  same  time  he  is  to  a  certain  extent  also 
the  representative  of  the  bankrupt ;  for,  so  far  as  the  latter's  radical  right 
in  the  estate  is  concerned,  he  is  bound  to  account  to  him"  (Goudy  on 
Danh-uptcy,  p.  348;  Bell,  Com.  ii.  319).  The  office  is  strictly  personal 
(.see  M'Taggart,  1834,  12  S.  338). 

The  trustee  is  vested  with  the  property  of  the  sequestrated  estate,  and 
not  merely  administrator  thereof  like  a  company  liquidator  (B.  A.,  1856, 
s.  102;  see  per.  Ld.  Shand  in  Standard  Property  Investment  Co.,  1884,  12 
11.  335). 

The  trustee  represents  the  body  of  creditors  generally,  and  not  the 
interest  of  any  particular  section  or  class  of  them  (see  Mann,  1879,  6  l\. 
1078 ;  Corlet,  1879,  7  R  200 ;  Skinners  Tr.,  1887,  14  E.  563).  In  all 
matters  of  importance  not  specifically  regulated  by  statute  he  should  act 
with  the  concurrence  of  the  commissioners  (B.  A.,  1856,  ss.  82,  85) ;  and  he 
is  subject  to  the  directions  of  the  creditors  {ih.,  ss.  82,  96 ;  see  Henderson, 
1836,  14  S.  797;  Gray,  1850,  12  D.  684).  Duties  prescribed  by  statute 
must  be  specifically  performed  {Aithcn,  6  June  1809,  F.  C. ;  Parlanc,  1825, 
4  S.  122;  Accountant  in  L'ankntptcy,  1862, 1  M.  126);  and  the  authority  of 
the  commissioners  or  creditors  will  not  relieve  the  trustee  {Mabcn,  1837,  15 
S.  1087 ;  see  Farquharson,  1830,  8  S.  752). 

It  is  not  proposed  to  enumerate  the  various  statutory  duties  falling  to 
be  performed  by  the  trustee  in  course  of  the  sequestration  proceedings  (see 
<  roudy  on  Bankruptcy,  350 ;  notes  issued  by  xVccountant  of  Court,  printed  in 
rarliament  House  Book). 

The  trustee  is  entitled  to  take  the  advice  and  assistance  of  a  law  agent 
or  agents,  where  necessary,  at  the  expense  of  the  estate  (see  Baillic,  1822, 

I  S.  459 ;  Berry,  1830,  8  iS.  509).  Such  an  agent  is  not  an  officer  in  the 
sequestration,  but  simply  the  law  agent  of  the  trustee  {NoUc,  1876,  4  E. 
77;  Rutherfurd,  1891,  18  E.  1061).  He  is  responsible  to  the  trustee  and 
not  the  creditors  {Younq,  1827,  5  S.  472;  Gourlay,  1827,  5  S.  743;  Berry, 
supra]  see  Graham,  1850,  12  D.  754;  BauJ,  1826,  4  S.  424),  and  Ins  claim 
for  remuneration  lies  ;igainst  the  former  (15.  A.,  1856,  s.  57 ;  see  Bcgg  on 
Lav^  A'jcnts,  142-3),  his  accounts  being  taxed  before  payment  (B.  A., 
1856,  s.'l54).  The  trustee  cannot  claim  remuneration  for  law  agency  work 
l)erformcd  by  himself,  nor  is  he  entitled  to  charge  against  the  estate  the 
fost  of  work  done  Ijy  tlie  law  agent  which  he  shouhl  have  done  himself 
(Gourlay,  1827,  5  S.  743 ;   Wilson's  Tr.,  1863,  2  M.  9). 

The  trustee  cannot  act  as  agent  for  individual  creilitors  in  connection 
with  their  claims,  or  as  mandatc»ry  in  voting  at  meetings  ( //'////(r?/?,  1884, 

II  E.  776),  Nor  can  ho  personally  buy  up  claims  against  the  estate  (Bel],_ 
Com.,  ii.  319;  ex  parte  Lacy,  6  Yes.  625;  see  Murray,  M.  9214;  Earl  of 
Craioford,  M.  10208).  He  cannot  purchase  assets  of  the  sequestrated 
estate  (B.  A.,  1856,  h.  120;  Bell,  Com.,  5th  cd.,  ii.  377  ;  Mcdjcn,  1837,  15  S. 
1087;  M'Larenon  WilU,\\.  988)  cither  directly  or  through  a  third  party 
(Brown,  1848, 11  D.  338);  as  to  resignation  prior  to  sale,  see  Bell,  Com.,  5th 
cd.,  ii.  378). 


248  SEQUESTEATION 

The  trustee  incurs  personal  liability  for  fulfilment  (1)  of  contract  of 
the  bankrupt  which  he  adopts  (vide  ante,  p.  211),  or  contracts  by  a  former 
trustee  which  he  takes  up  (see  Davidson,  1826,  5  S.  121 ;  Houston,  1841, 

4  D.  80);  and  (2)  contracts  made  by  him  in  the  course  of  his  engagement  of 
the  sequestrated  estate  (Bell,  Com.,  5th  ed.,  ii.  379  ;  Jeffrey,  1821,  1  S.  103, 
2  Sh.  App.  349;  Damdson,  1826,  5  S.  121;  Sicaa,  1829,  7  S.  268; 
Mackessack,  1886,  13  E.  445;  cf.  Edhiburgh  IlcritaUe  Security  Co.,  1886, 
13  E.  427).  Similarly  he  is  personally  liable  for  costs  found  due  in 
actions  which  he  enters  upon  (Jeffrey,  supra;  Gibson,  1833,  11  S.  656; 
A.  &  B.,  1865,  4  M.  83;  Pums,'l869,  41  Sc.  Jur.  396;  Coicie,  1893, 
20  E.  (H.  L.)  81),  this  liability  extending  to  the  whole  costs  in  current 
actions  of  the  bankrupt  which  he  takes  up,  and  probably  to  the  whole  costs 
i:i  actions  raised  by  a  former  trustee  which  he  takes  up  (see  Davidson,  1826, 

5  S.  121;  Houston,  1841,  4  D.  80  ;  Torhet,  1849,  11  D.  694;  Sandeman, 
1835,  13  S.  1037 ;  Ellis,  1870,  8  M.  805  ;  see  Miller,  1884,  11  E.  729).  A 
decerniture  against  him  only  "  as  trustee,"  does  not,  however,  infer  personal 
liability  {Craig,  1896,  24  E.  6).  He  is  not  liable  where  he  merely  sists 
himself  for  purposes  of  inquiry  {Muir,  1843,  5  D.  579),  nor  does  he  become 
liable  for  the  bill  of  costs  incurred  by  the  bankrupt  to  his  own  agent  in  the 
prior  stages  of  a  case  (see  Peddie,  1856,  18  D.  1306 ;  Sivan,  1829,  7  S.  268). 
Where  a  trustee  was  removed,  he  was  held  not  entitled  to  be  sisted 
personally  to  prosecute  an  action  in  which  he  had  been  engaged  as  trustee 
in  order  to  settle  questions  of  costs  {MaeKenzie,  1897,  34  S.  L.  E.  810). 

The  trustee  is  personally  liable  for  dividends  for  which  he  has  ranked 
creditors  {Hamilton,  1830,  9  S.  40  ;  see  Jeffrey,  1  W.  &  S.  565)  and  for 
wrongful  acts  done  l)y  him  {Gordons  Executors,  1825,  3  Mur.  515;  Stead, 
1835,  13  S.  280;  Ilichardson,  1835,  13  S.  672). 

A  trustee  acting  beyond  his  statutory  powers  will  not  have  relief 
against  the  sequestrated  estate,  but  only  against  any  of  the  creditors  whom 
he  can  show  to  have  instructed  him  {Kirkland,  1838,  10  S.  860 :  see  Mahev, 
1837,  15  S.  1087). 

llcsponsibility  for  Conduct,  etc. — The  trustee  may,  at  the  instance  of  any 
party  interested,  be  called  on  to  account  for  his  intromissions  and  manage- 
ment, by  petition  to  the  Lord  Ordinary  on  the  Bills  or  to  the  Sherifl', 
although  the  trustee  is  resident  beyond  the  territory  of  the  Sheriff  (B.  A., 
1856,  s.  8(5;  as  to  form  of  petition,  see  Henderson,  1882,  10  E.  188;  Bell, 
1862,  1  M.  84,  and  1  M.  257;  Faterson,  1872,  11  M.  76).  This  mode  of 
proceeding  is  mainly  intended  to  apply  to  complaints  of  malversation 
{M'Adam,  1884, 12  E.  358);  but  a  petition  against  the  trustee's  commission 
has  been  held  competent  {Burt,  1863,  1  M.  382),  as  also  a  petition  fur 
delivery  of  the  trustee's  report  (  White,  1879,  6  E.  854) ;  but  not  a  complaint 
against  the  trustee's  adjudication  on  claims  {M'Adam,  supra).  The  petition 
may  be  barred  by  delay  and  acquiescence  {MZachlan,  1830,  9  S.  54). 
Where  the  sequestration  is  terminated  by  a  composition  contract  the 
trustee,  notwithstanding  his  discharge,  is  liable  on  petition  to  the  Lord 
Ordinary  or  Sheriff"  by  the  bankrupt  or  cautioner  to  account  for  his 
intromissions  and  management  (B.  A.,  1856,  s.  142  ;  see  Burns,  1869, 
7  M.  476). 

The  Accountant  of  Court  takes  cognisance  of  the  conduct  of  trustees; 
and  in  the  event  of  a  trustee  not  faithfully  performing  his  duties  and  duly 
observing  all  rules  and  regulations  imposed  on  him  by  statute,  act  of 
sederunt,  or  otherwise  relative  to  the  performance  of  those  duties,  or  in  the 
event  of  any  complaint  being  made  to  the  Accountant  in  regard  thereto, 
he  is   directed   to    inquire  into   the  same,  and,  if   not  satisfied  with   the 


SEQUESTRATION  249 

explanation  given,  he  must  report  thereon  to  the  Lord  Ordinary  on  tlie  Bills 
in  time  of  vacation  or  during  time  of  session  to  either  Division  of  the  Couit, 
who,  after  hearing  the  trustee  and  investigating  the  matter,  may  censure  the 
trustee  or  remove  him  from  office  or  otherwise  deal  with  him  as  the  justice 
of  the  case  mav  require  (B.  A.,  18"/G,  s.  159  ;  see  Accovntant  in  Bankruptcy, 
18G7,  6  M.  lo8;  Lang,  1870,  8  M.  753;  Patcrson,  1867,  11  M.  76;  as 
to  expenses,  see  Accountant  in  Bankruptcy,  18G2,  1  M.  124).  A  petition 
and  complaint  at  common  law  on  the  ground  of  fraudulent  conduct  by 
the  trustee  is  incompetent  without  the  concurrence  of  the  Lord  Advocate 
{Patcrson,  1867,  11  M.  76). 

2.  Eemuneration. — The  trustee's  remuneration  is  in  the  form  of  a  com- 
mission fixed  by  the  commissioners  prior  to  the  pavment  of  each  dividend 
(B.  A.,  1856,  ss.  123,  130,  132  ;  see  Assets  Co.,  1885,  13  E.  281).  The 
deliverance  must  be  intimated  by  the  trustee  to  every  creditor  and  to  the 
bankrupt  by  circular  (52  &  53  Yict.  c.  39,  s.  17).  The  rate  of  commission 
varies  with  the  amount  and  character  of  the  estate,  5  per  cent,  being  a 
common  rate  (see  Bruce,  1825,  4  S.  152;  Boaz,  1829,  8  S.  175  ;  21iomsoii, 
1834,  12  S.  060;  Russell,  1869,  8  M.  219;  Milne,  1878,  5  E.  546).  A 
commission  of  3^  per  cent,  on  an  estate  of  £300,000  was  considered 
extravagant  (Assets  Co.,  supra).  The  commission  covers  clerks'  salaries  and 
writings  (see  Lindsay,  1880,  7  E.  911).  It  is  incompetent  for  the  commis- 
sioners to  increase  retrospectively  the  rate  of  commission  fixed  by  them  for 
an  earlier  stage  of  tiie  sequestration  (Lindsay,  1880,  7  E.  911).  The 
deliverance  fixing  the  commission  may  be  appealed  either  (1)  to  the  Lord 
Ordinary  or  Sheriff  within  fourteen  davs  from  its  date  (B.  A.,  1856,  s.  169 ; 
Bussdl,  1869,  8  M.  219;  see  also  Burt,  1863,  1  M.  382),  or  (2)  to  the 
Accountant  wiihiu  ten  days  of  the  issue  of  the  circular  by  the  trustee,  in 
the  form  of  a  note  of  objections;  the  Accountant,  if  necessary,  reporting 
the  matter  to  the  Lord  Ordinary  (»r  Sheriff,  whose  decision  is  final  (52  &  53 
Yict.  c.  39,  s.  17).  An  incompetent  award  of  commission  may  be  challenged 
by  a  creditor  by  way  of  nl)jections  to  the  trustee's  discharge  (Lindsay,  1880, 
7  E.  911).  Where  the  sequestration  is  wound  up  by  composition  contract, 
the  trustee's  remuneration  (usually  in  the  form  of  a  percentage  on  the  total 
composition)  must  have  been  fixed,  paid,  and  provided  for  before  the  composi- 
tion arrangement  is  approved  by  the  Court  (!>.  A.,  1856,  s.  141 ;  Brovnlee, 
1831,  9  S.  384),  subject  to  review  by  the  Lord  Ordinary  or  Sheriff  (s.  141),  or 
appeal  to  the  Accountant  of  Court  (52  &  53  Vict.  c.  39,  s.  17).  An  ai)pcal 
presented  after  the  deliverance  approving  the  composition,  was  held  incom- 
petent (Franklin,  1840,  3  I).  188),  and  an  appeal  by  the  bankrujit  has  been 
held  l)arred  by  liis  pi-oeeeding  to  obtain  discharge  upon  the  composition 
settlement  (Clark,  1843,  5  U.  772). 

3.  Eemoval  and  Eesignatiox. — (a)  Jhmoral  by  Creditors.— A  majority 
in  nundyjr  and  value  of  the  creditors  pre.'-ent  at  any  meeting  duly  called  ft  r 
the  pur])ose  may  remove  the  trustee,  without  reason  assigned  (B.  A.,  1856, 
8.  74;  Wallace,  1824,  3  S.  40;  Walker,  1835,  13  S.  428  ;  see  StepJien,  186:'., 
1  M.  866,  as  to  company's  and  partner's  trustees).  Tbc  resolution  may  be 
appealed  (ss.  169,  170;  see  Ste])hen,  supra;  Jfodye,  1885,  18  I).  1.35). 

(h)  By  Court. — One-fourth  in  value  (»f  the  creditors  who  liavc  duly 
lodged  oatlis  and  voucliers  may  at  any  time  (Brovn,  1848,  11  ]).  .').38  ; 
J{-7ider.'ion,  \H40,  II  I  >.  117")  ]pcliti(iii  the  Lord  Ordinary  on  the  IWlls  to 
remove  the  trustee  on  cause  shown  { 1>.  A.,  1850,  s.  74).  Any  creditor  may 
be  sisted  in  the  ajtjiHcation  (JHelnnand,  1854,  10  I).  540;  see  Cahlell,  1828, 
G  S.  1101).  'llie  cause  shown  may  be  serious  neglect  or  misconduct  in  the 
performance  of  the  trustee's  dutie.i  (Boll,  Co.vr.,  5th  cd.,  ii.  382;  Aytoun, 


2oQ  SEQUESTEATION 

1824,  3  S.  54;  ruchmond,  supra ;  Broxon,  supra;  cf.  Ewmg,  1824,  3  S.  1G4; 
affd.  2  W.  &  S.  19;  Loiodcn,  1835,  13  S.  389;  Henderson,  1849,  11  D. 
1470),  or  conflict  of  interest  (Bell,  Com.  ut  supra).  It  lias  also  been  held 
a  good  ground  of  removal  that  the  trustee  and  his  cautioners  were  both 
bankrupt  {Barton,  1831,  9  S.  573;  cf.  Richmond,  l^b^,  12  D.  1017;  Macnab, 
1851,  14  J).  182). 

The  trustee  may  also  be  removed  or  censured— (1)  by  the  Lord  Ordinary 
on  the  Bills,  for  failure  to  make  the  annual  return,  upon  a  petition  and 
complaint  by  the  Accountant  of  Court  or  any  creditor  (B.  A.,  1856,  ss.  158, 
169);  (2)  by  either  Division  of  the  Court,  or  the  Lord  Ordinary  in  vacation, 
where  the  Accountant,  on  the  complaint  of  any  creditor,  reports  that  the 
trustee's  duties  are  not  being  faithfully  and  properly  performed  (B.  A.,  1856, 
s.  159;  Accountant  in  Bankruptcy,  1884,  11  E.  1013;  Lang,  1870,  8  M. 
753). 

The  Court  does  not  seem  to  have  power  to  remove  a  trustee  ex_  propria 
motu ;  but  may  order  a  meeting  of  creditors  to  be  held  to  consider  the 
matter  (Bell,  Com.,  5th  ed.,  ii.  382;  cf.  Calhcll,  1828,  6  S.  1101;  Mitchell, 
1830,  9  S.  115). 

Where  a  bankrupt  presented  a  petition  and  complaint  to  the  Court  for 
removal  of  the  trustee  on  the  ground  of  malpractices,  the  Court,  before 
answer  and  imder  reservation  of  the  question  of  competency,  remitted  to 
the  trustee  to  lay  the  proceedings  before  the  creditors,  and  report.  The 
creditors  having  resolved  that  they  should  not  interfere,  and  that  the 
trustee  should  continue  in  office,  the  Court  dismissed  the  petition  (Bohertson, 
1871,  9  M.  741). 

(c)  Resignation. — A  majority  in  number  and  value  of  the  creditors 
present  at  any  meeting  duly  called  for  the  purpose,  may  accept  the 
resignation  of  the  trustee  (B.  A.,  1856,  s.  74;  see  Bell,  Com.,  5th  ed.,  ii. 
381). 

As  to  election  of  a  new  trustee  in  the  event  of  removal  or  resignation, 
see  ante,  p.  193. 

4.  Discharge. — {a)  Where  Estate  wound  up  Ig  Dividend. — The  trustee 
may  apply  for  discharge  after  flnal  division  of  the  funds.     The  first  step 
is  to  call  a  meeting  of  creditors,  at  which  he  submits  the  sederunt  book  and 
accounts  and  list'  of  unclaimed  dividends,  and  the  creditors  declare  their 
opinion  of  his  conduct  (B.  A.,  1856,  s.  152).     A  resolution  is  not  necessary 
{Milne,  1878,  5  E.  546).     The  trustee  then  presents  a  petition  to  the  Lord 
Ordinary  or  Sheriff,   which   is   intimated  to   any  creditors  who    objected 
at    the    meeting,  and  the  Accountant  {Milne,   1898,  5   E.  546;    Lindsay, 
1879,   6   E.    1246),   and  on   advising   the   petition   with  the  minutes   of 
the  meeting  and  objections,  if  any,  'the  Court  either  grants  discharge  or 
refuses  it  absolutely,  or  in  hoc  statu.  '  A  remit  to  the  Accountant  is  com- 
monly made  before  disposing  of  the  petition.     Before  discharge,  the  trustee 
must  transmit  the  sederunt  book  to  the  Accountant,  who  thereupon  directs 
him  to  deposit  in  l.iank  any  unclaimed  dividends  in  his  hands  (see  ante, 
p.  227).     Grounds  for  refusal  are  non-observance  of  statutory  requirements 
in  the  proceedings,  or  material  irregularities  in  the  ti'ustee's  conduct  of  the 
sequestration  {Wyllie,  1835,  14  S.   179;  Dundas,  1822,  1  S.  238;  Bruce, 
1825,  4  S.  152;   see  Stewart,  1828,  6  S.  749;  cf.  Bruce,  supra;  and  see 
Craig,  1895,  2  S.  L.  T.  484,  3  S.  L.  T.  20).     A  trustee  who  has  resigned, 
or  the  representatives  of  one  who  has  died,  may,  on  handing  over  the  estate, 
obtain  discharge  on  petition  to  the  Court  {Brown,  1864,  3  M.  56;  M'Ewan, 
1872,  9  S.  L.  E.  568),  expenses  being  given  out  of  the  estate  if  the  seques- 
tration is  still  open  {ih.).     An  extract  of  the  decree  of  discharge,  signed 


SEQUESTRATION  251 

by  the  Clerk  of  the  Bills  or  Sheriff  Clerk  as  the  case  may  be,  must  l.)e  forth- 
with sent  to  the  Accoimtant,  and  entered  in  the  liegister  of  Sequestrations, 
the  trustee's  bond  of  caution  being  delivered  up  (B.  A.,  185G,  s.  152). 

A  discharge  may  be  annulled  if  it  has  been  obtained  by  fraud  (see 
Bohcrfson,  1834,  12  S.  875). 

(h)  Where  Composition  Contract. — The  Act  makes  no  express  pro- 
vision for  discharge  in  this  case  (B.  A.,  1856,  s.  142).  The  practice  is  to 
grant  discharge  in  the  Bill  Chamber  after  the  deliverance  approving  the 
composition  settlement,  on  proof  that  the  trustee  has  accounted  to  the 
bankrupt  and  his  cautioner,  and  transmitted  the  sederunt  book  to  the 
Accountant.  The  petition  should  be  intimated  to  the  bankrupt  and  his 
cautioner  and  the  Accountant. 

XVIII.  The  Bankrupt. 


1.  Generally 251 

2.  Statutorv  Disqualifications  .         .     2.51 

3.  Radical  Ri^lit  in  Estate       .         .     252 


4.  Liability  to  Action       .         .         .     252 

5.  Allowance  by  Creditors        .         .     253 


1.  Generally. — It  is  not  proposed  to  enumerate  the  powers  of  the 
Ijankrupt  in  the  way  of  intervening  in  the  sequestration  procedure  (see 
Cloudy  on  Bankruptcy,  371). 

A  bankrupt  does  "not  by  sequestration  become  incapacitated  for  holding 
such  representative  offices  as  those  of  trustee,  executor,  curator,  but  the 
(Jourt  mav,  on  cause  shown,  supersede  him  in  the  exercise  of  the  otlice 
{Savxrs,  1881,  19  S.  L.  R  258 ;  Whittle,  1896,  23  E.  775),  and  where  the 
olfice  is  that  of  a  trustee  or  commissioner  in  sequestration,  will  usually 
remove  him  if  sequestrated  after  appointment  (Bell,  Com.,  5th  ed.,  ii.  382-385  ; 
Barton,  1831,  9  S.  573).  Hereditary  honours  and  dignities  are  not  affected 
by  sequestration  (Bell,  Com.  i.  120).  Nor  is  the  bankrupt  prevented  from 
carrying  on  business  while  undischarged,  although  the  profits  earned  by 
\nm,  so  far  as  in  excess  of  a  heneficium  competcntiw,  may  be  claimable  by 
the  trustee  (see  ante,  p.  209).  He  conmiits  a  crime  and  offence,  however, 
if  he  obtains  credit  to  the  extent  of  £20  without  disclosing  the  fact  of  his 
being  an  undischarged  l)ankrupt  (47  &  48  Vict.  c.  16,  s.  4).  He  may  be 
sued  on  obligations  undertaken  by  him  after  sequestration,  and  the  creditors 
iu  such  obligations  may  have  recourse  against  any  property  which  has  been 
abandoned  to  the  bankrupt  by  the  creditors  in  the  sequestration,  and  also 
against  property  acquired  by  him  through  business  carried  on  with  tlic 
kuowlelgc  and  acquiescojice  of  these  creditors  {(inlc,  p.  208;  Christie,  183y, 
14  S.  191 ;  Abel,  1883,  11  B.  149). 

2.  Statutory  JJisqualifications.— A  sequestrated  liankrupt  is  dis- 
<iualified  from  "sitting  or  voting  in  the  House  of  Lords  or  on  any  com- 
mittee thereof,  or  being  elected  as  a  peer  of  Scotland  or  Ireland  to  sit  and 
vote  in  the  House  of  Lords,"  and  from  "being  elected  to,  or  sitting  or 
voting  in,  tlie  House  of  Commons  or  on  any  committee  thereof"  (46  &  47 
Vict.'c.  52,  8.  32  (1),  (2) ;  47  &  48  Vict.  c.  16,  s.  5  (1)).  These  dis<iualifica- 
tions  cease  on  recall  or  reduction  of  the  se(|Ucstration,  or  on  the  banbni])t's 
discharge  (ih.).  AVliere  a  mend)cr  of  tlu;  House  of  Commons  continues 
under  8^(iuestration  for  six  months  from  the  date  thereof,  the  Court  which 
pronounced  the  awai<l  must,  immediately  after  (he  cxiiiry  of  that  ju'viod, 
certify  tlie  same  to  the  Sjjcaker  of  the  House,  and  thereupon  the  seat  of 
the  member  becomfs  vacant  (16   Sc  47  Vict.  c.  52,  s.  33;  47  &  48  Vict. 

c.  16,  s.  6). 

Sequestration  also  involves   disquilific-ti  )n   for  "b:ing  elected  to  or 


252  SEQUESTEATION 

hulJing  or  exercising  the  office  of  provost,  bailie,  trccasurer,  clean  of  guilJ, 
deacon-convenor  of  trades,  or  councillor,  or  commissioner  or  magistrate  of 
police,  or  being  elected  to  or  holding  or  exercising  the  office  of  meml)er  of 
a  parochial  board,  or  school  board,  or  road  trustee,  or  member  of  any  local 
authority  under  any  Act  for  the  time  being  in  force  (whether  passed  before 
or  after  the  commencement  of  this  Act)  relating  to  local  government  in 
Scotland"  (47  &  48  Vict.  c.  16,  s.  5  (2);  as  to  provision  for  vacating 
office,  see  s.  6),  as  also  from  acting  as  a  justice  of  the  peace,  or  as  mayor, 
alderman,  etc.  (ib.,  s.  5  (1);  and  46  &  47  Vict.  c.  52,  s.  32  (1)  (c,  d,e)),  or 
as  a  county  councillor  (53  &  54  Vict.  c.  71,  s.  9).  These  disqualifications 
cease  on  the  recall  or  reduction  of  the  sequestration,  or  the  discharge  of  the 
bankrupt. 

3.  Kadical  Right  in  Estate. — The  bankrupt  retains  a  radical  right 
in  the  scipiestrated  estate.  Thus  when  the  sequestration  is  terminated  by 
a  composition  arrangement,  the  bankrupt  after  discharge  has  a  full  title  in 
the  assets  of  tlie  estate  without  any  retrocession.  And,  without  such 
reinvestiture,  if  the  trustee  and  the  bankrupt  be  both  discharged,  the 
radical  right  of  the  latter  revives  as  an  active  title  to  sue,  although  the 
creditors  may  claim  any  estate  recovered  by  him  which  he  cannot  show  to 
have  been  abandoned  by  them  (  Whytc,  1888,  16  R.  95 ;  Gcddcs,  1889,  17  R. 
278 ;  see  Cooper,  1893,  20  R.  920).  Even  where  the  trustee  has  not  been 
discharged,  there  may  be  cases  where  the  bankrupt's  title  to  sue  would  be 
recognised  (W/ii/te,  supra;  Gcddcs,  supra;  Northern  Hcrit.  Scciir.  Invest.  Co., 
1891,  18  R.  (H.  L.)  37;  Cooper,  supra).  The  Imnkrupt  has  also  a  title 
to  insist  on  tiie  trustee  duly  accounting  for  his  intromissions  (B.  A.,  1856, 
ss.  86  and  142 ;  see  Burt,  1863,  1  M.  382 ;  BiLrns,  1869,  7  M.  476). 

The  bankrupt  is  alone  entitled  to  sue  actions  of  a  personal  nature, 
although  indirectly  attended  with  patrimonial  consequences  affecting  his 
estate,  as,  e.g.,  an  action  of  declarator  of  marriage  or  divorce  (see  Eraser, 
H.  &  W.  ii.  1145;  Grcenhill,  1822,  1  S.  275;  Beckham,  2  H.  of  L.  Ca.  579; 
■Green,  1896,  24  R.  211),  or  an  action  in  respect  of  an  injury  solely  affecting 
the  bankrupt's  character  (see  Thorn,  1857,  19  D.  271,  per  Ld.  J. -CI.  Hope; 
Jackson,  1875,  3  R.  130 ;  Eogcrs,  12  CI.  &  Fin.  700),  although  damages 
recovered  in  such  a  case  will  fall  to  tlie  trustee  (Jackson,  snpra).  The 
bankrupt  is  also  entitled  to  prosecute  actions  affecting  his  estate  which  the 
trustee  declines  to  litigate  (see  Fleming,  1876,  4  R.  112,  and  cases  there 
cited).  As  to  the  requirement  of  caution  where  the  bankrupt  sues,  see 
Mackay,  Practice,  152  ;  Goudy  on  Bankrup)tcy,  379  ;  and  article  on  Caution, 
Judicial,  ante,  vol.  ii.  352). 

The  bankrupt  is  entitled  to  any  surplus  of  his  estate  which  may  remain 
after  payment  of  all  his  debts  with  interest  (B.  A.,  1856,  s.  155  ;  see  per 
Ld.  Watson  in  Northern  Ilerit.  Secnr.  Invest.  Co.,  1891,  18  R.  37;  and  per 
Ld.  Shand  in  Standard  Property  Invest.  Co.,  1884,  12  R.  335),  but  he  cannot 
as  a  rule  demand  this  pending  tlie  currency  of  the  sequestration  (see, 
however,  Bellas  Trs.,  1882,  10  R.'370,  where  tliis  was  allowed).  The  bank- 
rupt may  claim  any  estate  abandoned  to  him  by  the  creditors,  either 
expressly  or  impliedly  by  their  actings  (see  per  Ld.  "Watson  in  Northern 
Ilerit.  S'cur.  Invest.  Co.,  supra).  He  has,  lio\vever,  no  right  to  unclaimed 
dividends  (Air,  1886,  13  R.  734). 

4.  Liability  to  Action. — The  bankrupt  is,  of  course,  liable  to  action 
at  t'.ie  instance  of  creditors  in  obligations  contracted  by  him  subsequent  to 
the  sequestration.  As  regards  the  claims  of  creditors  existing  at  the  date 
of  the  sequestration,  there  is  no  provision  in  the  Bankruptcy  Acts  staying 
or  making  incompetent  actions  against  the  bankrupt.     In  one  case,  how- 


SEQUESTEATIOX  253 

ever,  such  an  action  was  regarded  as  incompetent  {Eraser,  1881,  8  E.  347). 
Under  the  older  law  such  actions  against  the  bankrupt  were  not  uncommon, 
decree  therein  being  available  as  a  ground  for  personal  diligence  or  for 
attaching  acquirencia  (Neilson,  1843,  5  D.  475).  Under  the  present  law 
<lecree  against  the  bankrupt,  if  competent,  is  practically  of  little  or  no  use, 
not  being  res  judicata  against  the  trustee  or  capable  of  founding  diligence 
against  the  sequestrated  estate. 

The  bankrupt  is  liable  to  personal  diligence  for  payment  of  taxes,  fines, 
or  penalties  due  to  Her  Majesty,  or  rates  or  assessments  lawfully  imposed 
(43  &  44  Vict.  c.  34,  s.  4;  45  &  46  Yict.  c.  42,  s.  5),  and  he  may  be  im- 
prisoned by  warrant  of  the  Court  for  wilful  failure  to  pay  any  sum 
decerned  for  aliment  (45  &  46  Yict.  c.  42,  ss.  3,  4). 

5.  Allowance  by  Ckeditors. — Either  at  the  meeting  for  election  of 
the  trustee,  or  at  the  meeting  held  after  the  bankrupt's  examination,  or  at 
any  meeting  called  for  the  purpose,  four-tifths  in  value  of  the  creditors 
present  at  the  meeting  may  authorise  payment  from  time  to  time  to  the 
bankrupt,  or  to  the  partners  of  a  company  (if  the  sequestratio'i  be  that  (if 
a  company  estate),  of  such  sum  out  of  the  estate  as  they  shall  think  proper 
for  sustenance,  until  the  period  assigned  for  payment  of  the  second  dividend, 
not  exceeding  £3,  3s.  per  wt-ek  to  the  bankrupt,  or  to  each  individual  partner 
of  a  company  from  the  date  of  sequestration  to  the  period  foresaid ;  but  no 
allowance  can  be  given  if  the  bankrupt  has  not  complied  with  the  pro- 
visions of  the  Bankruptcy  Act  (Ix  A.,  1856,  s.  78).  If  at  any  time  it  shonld 
Ije  the  opinion  of  a  majority  of  the  creditors  present  at  a  regular  meeting 
that  it  is  for  the  interest  of  the  estate  that  a  special  allowance  should  be 
further  made  to  the  bankrupt,  and  if  the  Accountant  of  Court  reports  in 
its  favour,  it  is  competent  for  the  Lord  Ordinary  or  the  Court,  on  a])])liea- 
tion  by  the  trustee,  with  the  said  concurrence  of  creditors  anil  report  by 
the  Accountant,  to  award  such  allowance,  which  is  then  payable  out  of  the 
estate  (ih.). 

XIX.  The  Ciieditoks. 


1.  Generally 253 

2.  Meetint's        .....  253 


3.  Creditors  as  Individuals      .         .     255 


1.  Genei!ALLV. — The  body  of  creditors  on  a  sequestrated  estate 
comprise  those  who  were  creditors  of  the  Itankrupt  at  the  date  of  the 
sequestration  (see  B.  A.,  1856,  s.  121).  Tlie  rules  as  to  the  qualification 
of  creditors  for  voting  and  ranking  have  been  already  explained  (see  ante, 
pp.  143  and  220). 

The  creditors  have  the  paramount  control  of  tlie  administration  ami 
realisation  of  the  assets  of  the  estate,  ami  the  trustee  must  act  under 
8uch  directions  as  they  give,  failing  which,  he  acts  with  the  advice  of  the 
commissioners  (B.  A.,  1856,  ss.  82,  96). 

2.  jMkktixcs. — The  creditors  act  ]>y  resolutions  ])asscd  at  duly  con- 
vened meetings  (jf  their  body.  Two  general  meetings  are  ])rescribed  by 
statute:  (1)  The  meeting  for  electing  trustee  (ante,  p.  100);  (2)  the 
meeting  after  the  bankrupt's  examination,  for  considering  and  giving 
directions  as  to  the  administration  of  the  estate  (toUc,  p.  215).  S],iecial 
meetings  may  be  cilled  by  the  trustee  f(jr,  inter  alia,  the  following 
])urposes:  (1)  To  elect  a  new  commissioner  (s.  75);  (2)  to  authorise 
allowance  to  bankrujjt  (s.  78) ;  (3)  to  deciih.'  on  oiler  of  composition  (ss.  137, 
139,  145);  (4)  to  declare  o])inion  as  to  trustee's  conduct  before  discharge 
(s.  152);  (5)  to  remove  commissioner  and  elect  another  (ss.  76,  98);  (0)  lo 
remove  trustee  or  accept  resignation  (ss.  74,  98) ;  (7)  to  authorise  prosecu- 


254  SEQUESTKATIUN 

tion  under  sec.  178;  (8)  to  authorise  deed  of  arrangement  (ss.  35,  98); 
(9)  to  give  directions  as  to  bank  in  which  to  lodge  funds  (ss.  82,  98).  In 
the  case  of  Nos.  5,  G,  7,  8,  9,  and  10,  the  meeting  may  also  be  called  by  a 
commissioner,  with  notice  to  the  trustee  given  prior  to  the  meetmg  (s.  98 ; 
MFad,/can,  1884,  21  S.  L.  E.  479;  Lang's  Tr.,  1892,  19  R  488).  The 
following  meetings  may  be  called  by  the  trustee,  with  consent  of  the  com- 
missioners:  (a)  To  receive  and  entertain  offer  of  composition  (s.  139); 
(&)  to  consider  as  to  sale  of  outstanding  estate  (s.  136).  A  meeting  to 
elect  a  new  trustee,  or  devolve  estate  on  trustee  next  in  succession,  upon 
the  trustee's  removal  by  the  Lord  Ordinary,  is  held  by  order  of  the  Sheriff, 
on  application  of  a  commissioner  or  creditor  (s.  74). 

]\leetings  may  be  called  at  any  time  by  the  trustee,  or  by  a  commis- 
sioner with  notice  to  the  trustee  (s.  98;  Camj^hcll,  supra;  Langs  Ti\, 
supra);  and  the  trustee  is  bound  to  call  a  meeting  at  any  time  when 
required  by  one-fourth  in  value  of  the  creditors  ranked  on  the  estate,  or 
by  the  Accountant  of  Court  (s.  98). 

Notice  of  the  day,  hour,  place,  and  purpose  of  all  meetings  of  creditors 
under  the  Act  must  be  advertised  in  the  Gazette  seven  days  at  least  before 
the  day  of  the  meeting  (s.  99 ;  see  Bell,  Com.,  5t.h  ed.,  ii.  351 ;  M'Fadycan, 
1884,  21  S.  L.  E.  479;  Watt,  Phllp,  &  Co.,  1877,  4  E.  641).  In  ^certain 
cases' the  trustee  must  also  send  circulars  to  the  creditors  (ss.  87,  139,  136, 
152,  and  s.  100  as  to  creditors  under  £20).  Meetings  may  be  adjourned 
to  the  following  day,  and  that  for  electing  a  trustee  for  a  reasonable 
time  within  the  maximum  period  prescribed  for  it  by  the  Act  (s.  68 ;  as 
to  second  meeting,  see  MKcllar,  1861,  23  D.  1269).  An  omission  to 
duly  hold  a  meeting  may  be  rectified  by  petition  to  the  Inner  House  (see 
Myles,  1851,  14  D.  126 ;  Ross,  1852,  14  D.  546 ;   Wilson,  1891,  19  E.  219). 

The  procedure  at  meetings  is  not  regulated  by  statute,  but  left  to 
ordinary  practice  (Witham,  1884,  11  E.  776;  Bell,  Com.,  5th  ed.,  ii.  364). 
They  must  be  conducted  under  a  preses  (Anderson,  1827,  6  S.  235).  No 
quorum  of  creditors  is  prescribed  (Cookson,  1863,  2  M.  268).  The  creditors 
must  discuss  the  topics  before  them,  and  pass  their  resolutions  as  one 
body  (Bell,  Com.  ut  sup)ra).  Special  rules  as  to  majorities  are  provided  in 
various  cases  (see,  e.(7.,secs.  35,  74,  75,  101,  137,  138).  In  all  other  cases  the 
rule  is  that  "  all  questions  at  any  meeting  of  creditors  shall  be  determined 
by  the  majority  in  value  of  those  present  and  entitled  to  vote"(s.  101). 
Every  creditor  who  has  produced  a  proper  affidavit  and  voucher  under 
the  requirements  of  the  Act  is  entitled  to  vote.  Where  a  definite  majority 
is  required  by  the  Act,  a  creditor  who  abstains  from  voting  is  counted  as 
voting  with  the  majority  {M'Kay,  1864,  3  M.  74;  see  Charles,  1835,  14  S. 
139;  Sturroch,  1851,  13  1).  762).  In  reckoning  votes  by  numbers  where 
required,  claims  under  £20  are  not  counted  (s.  101).  Where  the  number 
of  creditors  present  does  not  admit  of  a  prescribed  statutory  majority  by 
numbers  being  obtained  with  exactness,  the  nearest  possible  majority  has 
been  taken  {Buchanan,  1829,  8  S.  201 ;  cf.  Broum,  10  July  1817,  F.  C. ;  see 
Bell,  Com.,  5th  ed.,  ii.  463).  Where  votes  are  objected  to,  the  rule  seems 
to  be  that  on  an  appeal  to  the  Court  objections  may  be  stated  to  any 
vote,  whether  raised  at  the  meeting  or  not  (see  Miller,  1858,  20  D.  803 ; 
cf.  Bohertson,  1842,  5  1).  304;  Somcrville,  1859,  21  D.  467).  A  creditor  is 
not  debarred  from  voting  by  having  a  personal  interest  in  the  matter  under 
consideration.  Secured  creditors,  indeed,  are  entitled  to  vote  on  the  full 
amount  of  their  claims  in  questions  affecting  the  subject  of  their  security 
(s.  59). 

The  topics  of  business  taken  up  at  a  meeting  may  include  others  then 


SEQUESTEATIOX  255 

the  agenda  in  the  notice  thereof,  except  such  as  require  a  special  statutory 
meeting  for  their  disposal  {Lcc'k,  1855,  17  D.  1075;  see  Fleming,  1876, 
4  E.  112).  Eesolutions  if  intra  vires  are  binding  on  the  trustee  and 
whole  body  of  creditors  (Bell,  Com.,  5th  ed.,  ii.  411 ;  see  Robertson,  1871, 
9  M.  741),  and,  though  subject  to  review,  will  not  be  disturbed  by  tlie 
Court  save  where  some  clear  prejudice  to  the  general  body  of  creditors  is 
shown  {Davidson,  1824,  2  Sh.  App.  357;  Taylor,  1833,  11  S.  250,  1  S.  & 
M'L.  94;  MKay,  186G,  4  M.  333;  see  Somcrville,  1859,  21  D.  467;  3Tar- 
shall  &  Aitkcn,  1889,  16  E.  895).  But  resolutions  involving  a  departure 
from  the  statute  are  invalid  {Gray,  1821,  1  S.  96 ;  Turner,  1822,  1  S.  444; 
Farquharson, 1S30, 8  S.  752;  ^cwry,1832, 10  S.239 ;  CricMon,  1833, 11  S.  781). 

The  proceedings  at  meetings  must  be  recorded  in  regular  minutes, 
which  must  be  signed  by  the  preses,  and  should  be  written  and  signed  at 
the  meeting,  although  not  invalidated  if  signed  after  it  (B.  A.,  1856,  s.  68; 
Lea,  1828,  6  S.  350 ;  see  Pjvown,  1869,  7"M.  595;  Lord  Blantyre,  1885, 
13  K.  116 ;  as  to  amendment,  see  Martin,  1857,  20  D.  55).  The  minutes 
ioim.  primd  facie  G\'\(\enQ,Q  in  any  Court  of  the  proceedings,  which  cannot 
be  contradicted  by  parole  (see  Ogilvie,  6  Feb.  1810,  F.  C. ;  Lea,  svjjo-a; 
Bell,  Com.,  5th  ed.,  ii.  352 ;  Dickson  on  Evidence,  ii.  s.  1214). 

3.  Creditoks  as  Individuals. — Although  the  direction  of  the  management 
of  the  estate  lies  with  the  majority  of  the  creditors,  the  majority  cannot, 
liy  resolving  to  abandon  a  claim  competent  to  them,  preclude  an  individual 
creditor  who  offers  to  prosecute  it  from  doing  so  {Sprot,  1828,  6  S.  1083 ; 
Spence,  1832,  11  S.  212;  M'Kay,  1866,  4  M.  333;  see  Marshall  &  Aitkcn, 
1889,  16  E.  895).  In  so  suing,  the  individual  creditor  proceeds  at  his  own 
risk ;  and,  on  the  other  hand,  should  he  recover  more  than  sufficient  to 
pay  his  own  debt  in  full,  he  must  hand  over  the  surplus  to  the  trustee  for 
behoof  of  the  general  body  {Spcnce,  supra  ;  Bell,  (7o??i.,  5th  ed.,  ii.  415).  He 
is  entitled  to  the  use  of  the  trustee's  name  in  suing,  on  giving  security  to 
keep  the  trustee  and  the  sequestrated  estate  indemnis  {Sprot,  sujna).  Or 
he  may  purchase  the  claim  from  the  creditors  and  sue  in  his  own  name, 
ttiking  from  the  trustee  an  assignation  of  his  right  {Spcncc,  supra). 

Individual  creditors  may  lawfully  purchase  any  estate  sold  publicly  in 
virtue  of  the  Act  (B.  A.,  1856,  s.  120).  This  rule  applies  to  the  case  of  a 
heritaljle  creditor  purchasing  the  security-subject  when  sold  by  the  trustee 
with  the  creditors'  concurrence  (Cruickshank,  1849,  11  D.  614). 

As  to  liability  for  expenses  attending  the  sequestration,  it  is  provided 
that  "  Xo  person  shall,  by  merely  lodging  an  oath  and  claim,  or  being 
ranked  or  receiving  payment  of  a  dividend,  or  appearing  or  voting  at  a 
meeting  in  a  sequestration  as  a  creditor,  be  liable  for  any  claim  liy  the 
•agent  or  other  person  employed  by  the  trustee  for  money  advanced,  or 
expense  incurred,  or  remuneration  in  relation  to  the  affairs  of  the  estate" 
(B.  A.,  1856,  s.  57).  Creditors  may,  of  course,  expressly  agree  to  indemnify 
the  trustee  against  the  consequence  of  some  particular  course  of  action  in 
connection  with  the  estate  which  they  desire  to  promote ;  and  they  may, 
further,  liy  their  actings  impliedly  undertake  such  an  oliligation  of  relief, 
or  even  expose  themselves  to  claims  by  third  paities  (see  Fllis,  1849, 11  I>. 
1347;  lieid,  1830,  8  S.  793;  Crnickshank,lSrS,  5  D.  1198;  Kirkland,  1838, 
16  .S.  860;  Smith,  1877,  5  E.  147). 

XX.  Accountant  of  Coukt. 

In  order  to  provide  for  an  official  supervision  of  sequestration  proceed- 
ings, a  new  office  was  established  by  the  Bankruptcy  Act,  1856,  viz.,  that  tf 


23G  SEQUESTRATION 

Accountant  in  Banlvruptcy.  By  the  Judicial  Factors  Act,  1889  (52  &  53 
Vict.  c.  39),  this  office  was  united  witli  that  of  Accountant  of  Court,  the 
holder  of  the  united  offices  being  called  the  Accountant  of  Court.  The 
appointment  of  the  Accountant  is  in  the  hands  of  the  Crown. 

It  is  the  Accountant's  duty  to  take  cognisance  of  the  conduct  of  all 
trustees  and  commissioners  in  sequestrations  awarded  under  the  Act  of 
1856,  or  in  wliich  proceedings  have  been  had  within  five  years  of  the  passing 
thereof ;  and  in  the  event  of  their  not  faithfully  performing  their  duties 
and  duly  observing  all  rules  and  regulations  imposed  on  them  by  statute, 
Act  of  Sederunt,  or  otherwise,  relative  to  the  performance  of  those  duties,  or 
iu  the  event  of  any  complaint  being  made  to  the  Accountant  by  any  creditor 
in  regard  thereto,  he  must  inquii'e  into  the  same,  and,  if  not  satisfied  with 
the  explanation  given,  he  must  report  thereon  to  the  Lord  Ordinary  on  the 
Bills  in  time  of  vacation,  or  during  time  of  session  to  either  Division  of  the 
Coin-t  of  Session,  who,  after  hearing  such  trustees  or  commissioners  thereon, 
and  investigating  the  whole  matter,  decide  regarding  it,  and  may  censure 
the  trustee  or  commissioners,  or  remove  them  from  their  office,  or  otherwise 
deal  with  them  as  the  justice  of  the  case  may  require  (B.  A.,  1856,  s.  159). 
Creditors  fdving  useful  information  upon  which  the  Accountant  acts  are 
entitled  to  the  expenses  incurred  by  them  out  of  the  estate  or  against  the 
party  complained  of,  as  the  Court  may  direct  (see  Accountant  in  Banhniptcy, 
1867,  6  M.  158). 

Tlie  Accountant  must  at  all  times,  when  requisite,  report  to  the  Lord 
Ordinary  on  the  Bills  or  either  Division  of  the  Court  any  disobedience  by 
the  trustee  or  commissioners  of  any  requisition  or  order  by  him,  and  gene- 
rally any  matter  which  he  may  deem  it  necessary  for  the  due  discharge  of 
his  office  to  bring  before  the  Lord  Ordinary  or  the  Court ;  and  it  is  com- 
petent for  the  Lord  Ordinary  or  the  Court  to  deal  summarily  with  the 
matter  reported,  as  accords  of  law  (s.  161). 

If  the  Accountant  possesses  information  leading  hnn  on  reasonable 
grounds  to  suspect  fraudulent  conduct  by  the  bankrupt  or  malversation  or 
misconduct  on  the  part  of  the  trustee  or  commissioners  such  as  may  infer 
punishment,  he  is  entitled  to  give  information  to  the  Lord  Advocate,  who 
nmst  direct  such  inquiry  and  take  such  proceedings  therein  as  he  may  think 
proper  (s.  162). 

The  Accountant  has  power,  either  on  the  application  of  one  or  more 
creditors  or  of  his  own  accord,  to  require  exhibition  of  the  sederunt  book  in 
any  sequestration,  and  of  any  vouchers  or  documents  which  he  may  think 
necessary  (s.  160).  He  may  also  direct  a  meeting  of  creditors  to  be  called 
to  take  into  consideration  any  measures  which  he  may  judge  requisite  for 
the  preservation  or  due  management  of  the  estate,  or  more  speedy  realisation 
and  division  of  the  funds,  or  winding  up  of  the  estate  (see  ib.). 

The  Accountant  has  no  right  to  interfere  with  the  creditors'  right  of 
controlling  the  administration  of  estates  in  bankruptcy ;  his  power  is  one 
of  controlof  trustees  and  commissioners,  to  the  effect  of  providing  for  the 
performance  of  their  duties.  The  power  is  official  and  not  in  any  sense 
judicial.  Useful "  Notes  for  the  Guidance  of  Trustees  iji  Sequestrations  "  are 
issued  by  the  Accountant,  and  may  be  obtained  at  his  office  (see  also  Barlia- 
nient  House  Book  ;  and  Goudy  on  Banlcruptcy,  Appendix,  p.  746). 

The  Accountant  keeps  a  "  Piegister  of  Sequestrations  "  in  the  form  oi 
Schedule  G  of  the  Act  of  1856,  which  is  patent  to  all  concerned  (s.  157). 
The  details  to  be  entered  therein  are  prescribed  by  sec.  157  of  the  Act.  He 
receives  the  sederunt  books  transmitted  by  trustees  on  discharge,  and  gives 
directions  for  depositing  unclaimed  dividends  in  bank.     A  "  llegister  of 


SEQUESTEATIOX  257 

Unclaimed  Dividends"  is  kept  in  his  office  (s.  153;  see  ante,  p.  227).  The 
Accountant  also  receives  the  annual  returns  of  sequestrations  made  up  hv 
trustees  and  transmitted  by  the  Sheriff  Clerks,  which  are  bound  up  and 
preserved,  and  are  patent  to  all  concerned  (s.  158).  He  frames  an  annual 
report  to  the  Court  of  Session  showing  the  position  of  each  dependino- 
sequestration  returned  to  him  (s.  IGO). 

A  right  of  appeal  to  the  Accountant  against  the  commission  allowed  to 
trustees  is  given  by  the  Judicial  Factors  Act,  1889  (52  &  53  Yict  c  39 
s.  17). 

The  Accountant  is  not  entitled  to  charge  fees  for  acting  under  remits 
from  the  Court  in  sequestrations  under  his  control  {Burt,  1863, 1  M.  1122). 

FORMS  IN  SEQUESTRATION. 

1.  retition  for  Sequestration  to  the  Lord  Ordinary  on  the  Bills  by  a  Creditor. 

Division.    [Date.] 

Unto  the  HonouraLle  the  Lord  Ordinary  officiating  on  the  Bills, 

The  Petiton  of  C.  D.  [design.],  a  creditor  to  the  extent  required  by  law,  of  A.  }!. 
[design.]  [or,  oi  A.  B.  cb  Co.  [design.],  and  A.  L'.  and  C,  the  individual  partners  of 
said  firm,  as  partners  thereof,  and  as  individuals] ; — 
Humbly  shorceth, — 

That  the  Petitioner  is  a  creditor  of  the  said  A.  B.  above  designed  [or,  of  the  said 
A.  B.  ct  Co.  above  designed,  and  of  the  said  A.  B.  and  C,  the  individual  ])artners  of  said 
firm]  to  the  extent  of  £  ,  conform  to  oath  and  bill  [or,  as  the  case  may  he,] 

herewith  produced. 

That  the  said  A.  B.  has  been  rendered  notour  bankrupt  within  the  last  four  months, 
and  still  remains  in  a  state  of  notour  bankruptcy,  and  has  Avithin  a  year  before  the  date 
of  the  presentation  of  this  petition  resided  [or,  had  a  dwelling-house  ;  or,  had  a  i)lace 
of  business]  in  Scotland,  and  is  subject  to  the  jurisdiction  of  the  Supreme  Courts 
thereof. 

[Or,  if  a  company,  in  place  of  the  irreceding  sentence,  say,  That  the  said  A.  B.  d-  Co. 
have  been  rendered  notour  bankrupt  within  the  last  four  months,  and  still  remain 
in  a  state  of  notour  bankruptcy,  and  have  within  a  year  before  the  date  of  the  pre- 
aentation  of  this  petition  carried  on  business  in  Scotland  ;  and  the  said  A.,  partner 
of  said  company,  has  resided  or  had  a  dwelling-house  in  Scotland  within  said  ])eriod, 
and  said  company  and  partners  are  suliject  to  the  jurisdiction  of  the  Supreme  Courts 
of  Scotland.] 

That  in  order  to  realise  the  estates  of  the  said  A.  B.  [or  of  A.  B.  d-  Co.,  and  the 
said  A.  B.  and  C]  for  behoof  of  his  [or  their]  creditors,  the  Petitioner  is  under  the 
necessity  of  applying  to  your  Lordship  for  se<|uestration  of  his  [or  tlieir]  estates  in 
terms  of  the  Bankruptcy  (Scotland)  Act,  1850",  and  Acts  exi)laining  and  amendin" 
the  same. 

[.S/(o»W  appointment  of  factor  he  desired  under  ]!.  A.  1850,  s.  IG,  here  state 
grounds.] 

May  it  tlierefore  please  your  Lordship  to  grant  warrant  fnr  liting  the  said  A.  Jl. 
[or  the  said  A.  B.  tb  Co.,  and  A.  B.  and  C]  to  appear  before  your  Lordship 
on  such  iudaciw  as  your  Lordship  may  direct,  to  show  cause  why  se(iuestra- 
tion  of  liis  [or  their]  estates  should  not  be  awarded;  to  direct  intimation  of 
the  said  warrant,  and  of  tlie  diet  of  compearance  on  such  inducio',  to  be 
made  in  tlie  Edinburgh  Ua:.eltc;  to  grant  diligence  to  recover  evidence  of  the 
notour  bankruptcy  of  the  said  A.  Jl.  [or  of  the  said  A.  B.  <[•  Co.,  and  A.  B. 
and  C],  and  of  the  other  facts  necessary  to  be  established;  and,  on  again 
considering  this  I'etition,  to  award  seiiuestration  of  tlie  estates  which  now 
belong  or  shall  hereafter  belong  to  the  said  A.  B.  [or  A.  Jl.  <0  Co.  as  a 
comjiany,  and  A.  B.  ami  C.  as  partners  thereof,  and  as  individuals]  before 
the  date  of  his  [or  their]  discharge,  and  to  declare  Die  said  estates  to  Ix'long 
to  his  [or  tlieir  respective]  creditors  for  the  purjjoses  of  said  statutes;  and 
to  a])point  a  meeting  of  the  said  creditors  to  l;e  held  within 

on  the  day  of  18    ,  at       o'clock        noon,  to 

elect  a  trustee  on  the  estates  of  the  said  A.  J',,  [or  of   the  said  A.  JL  d  Co. 
and  A.  B.  and  C,  or  separate   trustees],  or  trustees  in  succession,  and  cdm- 
s,  K.— VOL,  XI  17 


258  SEQUESTEATION 

missioners,  and  to  do  the  other  acts  provided  by  the  said  statutes;  also 
to  remit  to  the  Sheriff  of  the  County  of  to  proceed  in 

manner  mentioned  in  said  statutes  :  [Should  a  factor  he  necessary,  add  :_  And 
further  to  nominate  and  appoint  [vamc  and  desujn.],  or  such  other  suitable 
person  as  judicial  factor  on  the  said  sequestrated  estates,  until  a  trustee 
shall  be  confirmed  thereon,  with  the  usual  powers,  he  always  finding  caution 
before    extract]  ;   or   to   do  otherwise   in   the  premises  as   to  your   Lordship 

shall  seem  just. 

According  to  Justice,  etc, 

[Signed  by  Petitioner  or  his  Counsel  or  Agent.} 


2.  Petition  for  Sequestration  to  Sheriff  at  instance  of  Debtor. 
In  the  Sheriff  Court  of 
A.  B.  [design.\  with  concurrence  of  C.  D.  [design.],— Pursuer ; 

AGAINST 

His  Creditors, — Defenders. 

The  above-named  Pursuer  submits  to  the  Court  the  Condescendence  and  Note  of  Plea 
in  Lav/  heieto  annexed,  and  prays  the  Court,  ,    „  ,    i 

To  award  sequestration  of  the  estates  Avhich  now  belong,  or  hereafter  shall  belong,  to 
the  Pursuer  before  the  date  of  his  discharge,  and  to  declare  the  same  to  belong 
to  his  creditors  for  the  purposes  of  the  Bankruptcy  (Scotland)  Act,  1856,  and 
Acts  explaining  and  amending  the  same  ;  and  to  appoint  a  meeting  of  the  said 
creditors  to  be  held  in  terms  of  said  Acts  within  , 

to  elect  a  trustee  or  trustees  in  succession  upon  the  sequestrated  estates  of  the 
Pursuer  ;  and  to  do  the  other  acts  provided  by  the  said  statutes. 

Condescendence. 

1.  The  Pursuer  has  for  the  year  preceding  the  date  of  this  Petition  carried  on  busi- 
ness [or  resided]  at  j  and  is  suV)ject  to  the  jurisdiction  of  the 
Court  of  Session. 

2.  The  Pursuer  having  sustained  business  losses  [or,  as  the  case  may  be,\  is  now 
insolvent  [or  is  in  embarrassed  circumstances],  and  finds  it  necessary  to  apply  for  seques- 
tration of  his  estates  under  the  Bankruptcy  statutes. 

3.  The  said  C.  D.  is  a  creditor  of  the  Pursuer  to  the  extent  of  £  ,  conform  to  oatk 
and  bill  herewith  produced. 

Plea  in  Law. 

The  Pursuer  being  insolvent  [or  in  embarrassed  circumstances],  is  entitled  to  have 
sequestration  of  his  estates  awarded. 

In  respect  whereof. 

[Signed  by  Petitioner  or  his  Agent.] 


3.  Oath  by  a  Creditor  for  ordinary  unsecured  Debt. 

At  Edinburgh,  the  day  of  18    ,  in  presence  of  X, 

one  of  Her  Majesty's  Justices  of  the  Peace  for  the  of 

Compeared  G.  D.,  merchant  in  Edinburgh,  who  being  solemnly  sworn  and  interro- 
gated, depones,  That  A.  B.,  merchant  in  Edinburgh  [tf  a  company,  say,  A.  B.  <k  Co., 
merchants  in  Edinburgh,  and  A.  B.  and  C,  the  individual  partners  of  that  companvj, 
was  [or  were]  at  the  date  of  the  sequestration  of  his  [or  their]  estates,  and  still  is  [or 
are],  justly  indebtecl  and  resting-owing  to  the  deponent  the  sum  of  £96,  10s.,  being  the 
amount  contained  in  and  due  under  a  l^ill  drawn  by  the  deponent  upon  and  accepted  by 
the  said  A.  B.  [or  A.  B.  cC-  Co.],  dated  day  of  18     ,.and 

payable  three  months  after  date.     Depones,  That  no  part  of  said  sum  has  been  paid  or 
compensated,  and  that  the  deponent  holds  no  other  person  than  the  said  A.  B.  [or 


SEQUESTEATION  259 

A.  B.  li-  Co.  and  individual  partners]  bound  for  the  debt,  and  no  security  for  the  same. 

All  which  is  truth,  as  the  de^jonent  shall  answer  to  God. 

(Signed)  C.  D. 

X.,  J.  P. 
Note. —  lllien  the  oath  is  to  he  used  solely  for  'petitioning,  leave  out  the  words  "  u-as  [or 
were]  at  the  date  of  sequestration  of  h  is  [or  their]  estates,  and  still." 

4.  Oath  by  a  Creditor  in  a  Debt  for  ichich  he  holds  Security  over  the  Estate  of  the  Bankrupt. 

At  Edinburgh,  etc.  (as  in  Form  3,  supra). 

Compeared  C.  D.,  merchant  in  Edinburgh,  who  being  solemnly  sworn  and  interro- 
gated, depones,  That  A.  B.,  also  merchant  there,  was,  at  the  date  of  his  sequestration, 
and  still  is,  justly  indebted  and  resting-owing  to  the  deponent  the  sum  of  £1000 
sterling  of  princiiml,  contained  in  a  bond  and  disposition  in  security,  dated  the  27th 
day  of  February  18  ,  granted  by  the  said  A.  B.to  the  deponent,  over  that  self-contained 
dwelling-house,  Xo.  Princes  Street,  Edinburgh,  with  the  pertinents  therein  par- 
ticularly described,  together  with  the  sum  of  £18,  12s.  7d.,  being  the  legal  interest  of 
the  said  principal  sum  from  the  term  of  Whitsunday  18  to  the  date  of  sequestration, 
amounting  together  to  the  sum  of  £1018,  12s.  7d.  sterling.  Depones,  That  no  j^art  of 
said  sum  has  been  paid  or  compensated,  and  that  he  holds  no  other  obligant  than  the 
said  A.  B.  bound  for  the  debt,  and  no  security  than  that  above  specified.  Further,  the 
deponent  hereby  values  the  security  of  the  said  house  and  pertinents  contained  in  said 
bond  and  disposition  in  security  at  the  sum  of  £750  sterling,  which,  being  deducted 
from  the  foresaid  sum  of  £1018,  12s.  7d.,  leaves  a  balance  of  £268,  12s.  7d.,  for  which 
the  deponent  claims  a  right  to  vote,  and  to  be  ranked  in  order  to  draw  a  dividend,  in  the 
sequestration  of  the  saicl^.  B. — All  which  is  truth,  as  the  deponent  shall  answer  to  God. 

(Signed)  C.  D. 

X.,  J.  P. 

Note. —  Ulien  the  oath  is  to  be  used  merely  for  petitioning,  it  is  sufficient  to  state  the 
securities  u-ithout  vahdng  them.  Jt'hen  the  oath  is  to  be  used  merely  for  voting,  the  icords  in 
italics  will  be  omitted. 

5.  Oath  by  a  Creditor  in  a  Debt  for  which  he  has  an  Obligant  bound  vnth,  lut  liable 

in  Belief  to  the  Bankrupt. 

At  Edinburgh,  etc.  (as  in  Form  3,  supra). 

Compeared  C.  D.,  banker  in  Edinburgh,  Avho  being  solemnly  sworn  and  interrogated, 
depones,  That  A.  B.,  merchant  in  Leith,  was,  at  the  date  of  his  sequestration,  on  1st 
Novemljer  18  ,  and  still  is,  justly  indebted  and  rest-owin"  to  the  deponent  the  sum  of 
£300  sterling,  bein"  the  amount  of  a  bill  drawn  liy  the  saicl  A.  B.  ujion  and  accejDted  by 
E.  F.,  grocer  in  Edinburgli,  dated  30th  June  18  ,  payal)le  three  months  after  date, 
indorsed  Ijy  the  said  A.  B.  to  the  deponent,  together  with  the  sum  of  £1,  3s.  lOd., 
Ijeing  the  interest  at  the  rate  of  5  per  cent,  from  3rd  October  18  ,  when  the  said 
bill  became  due,  to  the  date  of  the  sequestration,  the  principal  and  interest 
amounting  together  to  the  sum  of  £301,  3s.  lOd.  Depones,  That  no  part  of  said 
sum  has  been  paid  or  compensated,  and  that  he  holds  no  other  obligants  than 
those  above  specified,  and  that  he  holds  no  security  for  the  debt.  Further,  the 
deponent  hereby  values  the  obligation  of  the  said  E.  F.,  the  acceptor  of  said  bill,  and 
as  such  liable  in  total  relief  to  the  bankrupt,  the  said  A.  B.,  at  the  sum  of  £100,  lohich 
being  deducted  from  the  foresaid  sum  q/'£30],  ^s.  \0d.,  leaves  a  balance  of  £201,  3s.  lOd., 
for  v:hich  the  deponent  claims  a  right  to  vote  in  the  sequestration  of  the  said  A.  B. — All  which 
is  truth,  as  the  deponent  shall  answer  to  (Jod.  (Signed)  C.  D. 

X.,  J.  P. 

Note. — The  words  in  italics  may  be  omitted,  if  the  object  of  the  oath  is  to  establish  ct 
right  only  of  drui'sing  a  dividend,  not  of  voting. 

G.  Oath  of  Credulity. 

At  Edinburgh,  etc.  {as  in  Form  3,  supra). 

Compeared  A.  B.,  cliartered  accountant  in  E<liiiburgh,c?(r((^or  bonis  of  C.  D.  [design.'], 
conform  to  [state  appointment],  who  being  solemnly  sworn  and  interrogated,  tlepones, 
That  to  the  best  of  the  deponent'.^  knowledge  and  Ijclicf,  E.  F.  [design.]  was  at  the  date 
of  the  sequestration  of  his  estates,  and  still  i.s,  ju-stly  indebted  and  resting-owing  to  the 
said  C.  D.y  etc. 


260  SEQUESTRATION 

7.  Petition  for  Recall  of  Sequestration,  and  Gazette  Notice. 

Unto  the  Honourable  the  Lord  Ordinary  officiating  on  the  Bills, 

The  Petition  of  E.  F.  [design.]  ;— 

Hurnhbj  shou-eth, —  .  .  ,    ^t      •     ,  c    a    r> 

That  on  the  day  of  ,  a  petition  at  the  instance  of  A   B. 

\design.l  with  concurrence  of  0.  D.  [designP^,  {or,  at  the  instance  of  C.  D.,  as  a  creditor 
of  A.  B^  was  presented  to  your  Lordship  \or,  to  the  Sheriff  of  J,  F;aymg 

for  seciuestration  of  the  estates  of  the  said  A.  B.  under  the  Bankruptcy  (Scotland)  Act, 
1856,  and  Acts  explaining  and  amending  the  same,  on  which  petition  your  Lordship 
[or,  the  Sheriff  of  ],  on  the  day  of  ,  awarded  sequestration 

of  the  estates  of  the  said  A.  B.  ,    ,  .i    ■       t  i, 

\In  the  case  ivhere  the  estates  of  a  deceased  debtor  have  been  sequestraied,  insert  h.ere,— 
That  G  H.  [design.],  one  of  the  successors  of  the  said  deceased  ^.  5.,  being  furth  of 
Scotland,  was  edictally  cited,  and  the  advertisement  for  payment  of  the  first  dividend 
has  not  yet  been  published.]  ,    ,    „  ,  .to 

That  the  Petitioner  is  a  creditor  of  the  said  A.  B.  to  the  amount  ot  i  , 

conform  to  [set  forth  grounds  of  debt]  herewith  produced. 

[State  here  the  jxirticular  grounds  iqmi  which  the  application  is  founded.] 
The  said  sequestration  should  therefore  be  recalled  in  terms  of  the  31st  section  of  the 
Bankruptcy  (Scotland)  Act,  1856,  and  Acts  explaining  and  amending  the  same. 

May  it  therefore  please  your  Lordship  to  order  a  copy  of  this  Petition  and  of  the 
deliverance  thereon,  to  be  served  on  [the  parties  who  petitioned  or  concurred], 
or  on  their  respective  known  agents,  [and,  if  already  appointed,  on  E.  F.  [design.], 
trustee  in  said  sequestration],  and  to  require  them  to  lodge  answers  thereto, 
witliin  a  specified  short  time  ;  and  to  order  a  notice  of  the  presentation  of  this 
Petition  to  be  published  in  the  Edinburgh  Gazette  ;  and  on  the  expiration  of  the 
time  so  fixed,  with  or  without  answers,  to  recall  the  said  sequestration,  and  to 
order  the  judgment  of  recall  to  be  entered  in  the  Register  of  Sequestrations  and 
on  the  margin  of  the  Register  of  Inhibitions ;  or  to  do  otherwise  as  to  your 
Lordship  shall  seem  just. 

According  to  Justice,  etc. 

Gazette  Notice. 

E.  F.  [design.]  hereby  gives  notice  that  he  has  presented  a  Petition  to  the  Lord 
Ordinary  on  the  Bills,  for  recall  of  the  sequestration  of  the  estates  of  A.  B.  [design.],  on 
which  Petition  the  following  deliverance  has  been  pronounced  [state  deliverance]. 

[Signed  by  Petitioner  or  his  Counsel  or  Agent] 
[Place  and  date.] 

8.  Petition  for  Vcduation  of  Contingent  Debt. 
Unto  the  Honourable  the  Sheriff  of  , 

The  Petition  of  G.  D.  [design]  ;— 

Humbly  shovxth, — 

That  the  estates  of  ^.  -C.  [design.]  were  sequestrated  on  the  day  of  18    , 

on  the  petition  of  ,  with  concurrence  of 

That  the  Petitioner  is  a  creditor  of  the  said  A.  B.,  in  respect  of  [state  nature  of  the 
debt],  and  the  said  debt  being  thus  contingent  on  [state  nature  of  the  contingency],  the 
Petitioner  makes  this  application  to  your  Lordship  to  put  a  value  on  the  said  debt,  m 
terms  of  the  53rd  section  of  the  Bankrujitcy  (Scotland)  Act,  1856. 

May  it  therefore  please  your  Lordship  to  direct  intimation  of  this  Petition  to  be 
given  to  the  said  A.  B.,  and  to  the  said  [petitioning  and  concurring  creditors], 
and  on  resuming  consideration  hereof  to  put  a  value  on  the  said  debt,  in  order 
that  the  Petitioner  may  be  entitled  to  vote  and  draw  dividends  in  respect  of 
such  value. 

According  to  Justice,  etc. 


SEQUESTEATIOX  2G1 

9.  Note  of  Personal  Objections  to  Trustee,  and  Objections  to  Votes. 
Unto  the  Honourable  the  Sheriff  of  the  County  of  Edinburgh, 

Note  of  Objections  for  E.  S.,  Trustee  nominated  by  a  majority  of  Creditors  in  value 
and  claiming  to  be  Trustee  on  the  Sequestrated  Estate  of  A.  B. 

To  the  eligibility  of  C.  D.,  also  claiming  to  be  Trustee  on  said  Sequestrated  Estate,  and 
to  the  Votes  of  sundry  Creditors  who  vuted  for  his  election. 

Personal  Objections. 

1.  The  said  C.  D.  promised  to  communicate  a  share  of  his  commission  to  E.  F.  and 
H.  J.,  in  consideration  of  their  agreeing  to  vote  for  his  election. 

2.  The  said  G.  I),  is  at  present  trustee  on  the  sequestrated  estate  of  P.  Q.,  who  was 
engaged  in  a  variety  of  joint  adventures  with  the  bankrupt,  and  accounts  between  the 
two  estates  being  unsettled,  the  said  C.  D.  would  have  conflicting  interests  to  attend  to 
were  he  elected  trustee  on  the  estate  of  the  said  A .  B. 

Objections  to  Votes. 

1.  Oath  by  F.  G.,  claiming  to  be  ranked  and  vote  for  the  sum  of  £100. 

The  claimant  omits  to  swear,  as  required  by  the  22nd  section  of  the  statute,  whether 
he  holds  any  other  obligant  than  the  bankrupt  bound  for  the  debt. 

2.  Oath  by  I.  K.,  claiming  to  be  ranked  and  vote  for  the  sum  of  £150. 

The  claimant's  debt  is  constituted  by  a  bill,  dated  18     ,  payable  three 

months  after  date,  drawn  by  the  bankrupt  on,  and  accepted  by  L.  M.,  and  endorsed 
to  the  claimant,  and  he  omits  to  value  and  deduct  the  obligation  of  the  acceptor  as 
required  by  the  60th  section  of  the  statute. 

10.  Note  of  A2'>peal  against  Deliverance  of  Trustee  rejecting  a  Claim  for  a  Dividend. 

[Prt'fix  the  Trustee's  Deliverance.] 

Unto  the  Honourable  the  Lord  Ordinary  officiating  on  the  Bills  [or,  Sheriff  of        ], 

Note  of  Appeal  for  C.  D.  [desi<jn.]  against  the  deliverance  of  E.  F.  [desijn.],  trustee 
on  the  sequestrated  estate  of  A.  B.  [desujn.l. 

On  the  day  of  18     ,  the  trustee  issued  the  foregoing  judgment 

on  a  claim  by  the  Appellant  to  be  ranked  as  a  creditor  on  the  said  estate. 

Against  this  judgment  the  said  C.  D.  appeals  to  your  Lordship,  and  craves  that  the 
.same  may  be  recalled,  and  that  the  trustee  be  ordained  to  rank  the  Appellant  as  a 
creditor  on  the  said  estate,  and  to  make  payment  of  the  dividend  corresponding  to  the 
debt  fur  which  the  Appellant  claimed  to  be  ranked,  with  bank  interest  on  the  dividend 
from  the  time  the  same  was  or  ouglit  to  have  been  deposited  by  the  trustee,  and  that 
the  trustee  be  found  liable  in  the  expenses  of  the  Appellant. 

According  to  Justice,  etc. 

11.  Note  of  Appeal  by  Creditor  arjainst  Deliverance  of  Trustee  admitting  a  Claim 

of  a  Co- Creditor. 

[Prefix  the  Deliverance  complained  of] 

Unto  the  Honourable  the  Lord  Ordinary  officiating  on  the  Bills  [or,  the  Sheriff  of  ], 

Note  of  Appeal  for  C.  D.,  a  creditor  on  the  sccpiestrated  estate  of  A.  B.  [design.]. 

On  till-  day  of  ,  E.  F.  [design.],  the  trustee  on  said  estate,  issued 

the  forei'tjing  judgment  admitting  a  claim  made  by  (J.  H.  for  the  sum  of  £  ,  and 

iiicludea  him  in  the  list  of  creditors  entitled  to  draw  a  dividend.  At  the  same  time, 
the  trustee  admitted  the  claim  of  the  Appellant  for  the  sum  of  £ 

The  said  C. /A,  being  rlissatisfied  wuli  the  (h^cision  of  the  trustee  in  admitting  the 
claim  of  the  s;iid  0.  //.,  now  appeals  to  your  Lordsliip  against  the  same. 

Your  Lordship  is  therefore  humbly  moved  (o  ree.all  the  decision  of  the  trustee  in 
admitting  the  claim  of  the  said  C  II.,  and  to  order  the  trustee  to  reject  the  same,  and 
to  find  him  not  entitled  to  a  dividend. 

The  Ai'pellant  also  craves  to  be  found  entitled  to  his  expenses. 

According  to  Justice,  etc. 


262  SEQUESTEATION 

12.  Appeal  against  Deliverance  of  Trustee,  or  Resolution  of  Creditors. 
[Prefix  the  Deliverance  or  Resolution  appealed  against.] 
Unto  the  Honourable  the  Lord  Ordinary  officiating  on  the  Bills  [or,  the  Sheriff  of         ], 
Note  of  Appeal  for  G.  D.  [design.],  a  creditor  in  the  sequestration  of  A.  B.  [design.]. 
On  the  day  of  18     ,  E.  F.  [design.],  the  trustee  on  the  seques- 

trated estates  of  the  said  A.  B.,  pronounced  the  prefixed  deliverance  [or,  as  the  case  may 
he,  a  meeting  of  creditors  in  the  said  sequestration  held  at  adopted  the  prefixed 

resolution.]  „ 

The  Appellant  is  a  creditor  in  the  said  sequestration,  and  as  he  considers  liimselt 
aggrieved  by  the  said  deliverance  [or,  resolution],  he  respectfully  appeals  against  the 
same,  and  craves  the  Court  to  recall  the  said  deliverance  [or,  resolution]  submitted  to 
review,  and  to  [state  special  remedy  desired,  if  any]. 
The  Appellant  also  craves  expenses. 

In  respect  whereof. 

13.  Appeal  to  the  Inner  House  against  Judgment  of  the  Sheriff. 

[Prefix  Deliverance  complained  of.] 
Unto  the  Right  Honourable  the  Lords  of  Council  and  Session, 
Note  of  Appeal  for  C.  D.  [design.],  a  creditor  [or,  as  the  case  may  he]  in  the  sequestra- 
tion of  A.  B.  [desigii.]. 
That  in  the  process  of  sequestration  of  the  estates  of  the  said  4.  B.,  under  the  Bankruptcy 
(Scotland)  Act,  1856,  and  Acts  explaining  and  amending  the  same,  presently  depending 
in  the  Sheriff  Court  of  ,  the  Sherift'-Substitute  was,  on  the  day  of 

18  ,  pleased  to  pronounce  the  deliverance  above  copied,  which  the  Appellant 
respectfully  brings  under  the  review  of  your  Lordships,  in  terms  of  sec.  170  of  the 
-Statute  first  above  nienlioned. 

May  it  therefore  please  your  Lordships  to  recall  the  deliverance  complained  of,  find 
the  Appellant  entitled  to  the  expenses  of  the  process,  both  in  your  Lordship's 
Court  and  in  the  Sheriff  Court ;  and  do  otherwise  as  to  your  Lordships  shall  seem 
proper. 

According  to  Justice,  etc. 


14.  Petition  for  Bankrupt's  Discharge  icithout  a  Composition,  with  Minute  of 
Concurrence  of  Creditors  and  Trustee's  Certificate. 

Unto  the  Honourable  the  Lord  Ordinary  officiating  on  the  Bills  [or,  the  Sheriff  of 

], 

The  Petition  of  A.  B.   [design^,  one  of  the  partners  of  the  firm  of  A.  B.  tO  Co. 
[design.]  ;—- 
Ilumhly  shoiveth, — ■ 

That  on  the  day  18     ,  the  estates  of  the  said  A.  B.  &  Co.  as  a 

company,  and  of  ^.  -B.  and'C.  D.  as  partners  of  said  company,  and  as  individuals, 
were  sequestrated  by  your  Lordship  [or,  as  the  case  may  be]  under  the  Bankruptcy  (Scot- 
land) Act,  1856,  and  Acts  explaining  and  amending  the  same. 

That  six  months  have  now  expired  from  the  date  of  the  deliverance  actually  award- 
ing sequestration,  and  the  Petitioner  is  desirous  of  being  finally  discharged  of  all  debts 
due  by  him  as  a  partner  of  said  com]iany,  and  as  an  individual,  before  the  date  of  the 
sequestration;  he  has,  accordingly,  procured  the  concurrence  in  this  petition  of  a 
majority  in  number  and  four-fifths"  in  value  of  the  creditors  who  have  produced  oaths 
and  claims  to  be  ranked  on  said  sequestrated  estates,  all  conform  to  the  Minute  of 
Concurrence  by  the  creditors,  and  certificate  of  E.  F.  [design.],  trustee  on  the  said 
sequestrated  estates,  herewith  produced. 

That  the  trustee  has,  in  terms  of  the  statute  first  above  mentioned,  prepared  a  report 
with  regard  to  the  conduct  of  the  Petitioner,  and  as  to  how  far  he  has  complied  with  the 
provisions  of  the  said  Acts,  which  report  is  herewith  ])roduced. 

The  dividend  which  has  been  paid  out  of  the  iiulividual  estate  of  the  Petitioner 
amounts  to  ,  being  less  than  five  shillings  in  the  pound  ;  but  tliis  has  arisen  from 

circumstances  for  which  he  cannot  justly  be  held  responsible. 


SERVICE  OF  HEIES  2G 


May  it  tlierefore  please  your  Lordsliip  to  appoint  tliis  retition  to  be  intimated  Ly 
advertisement  in  the  Edinburgh  Gccxtte,  and  l>y  circular  posted  to  each  of  the 
creditors  in  the  sequestration ;  and  if  at  the  distance  of  not  less  than  twenty-one 
days  from  the  publication  of  such  intimation,  there  be  no  appearance  to  oppose 
the  same,  or  in  the  event  of  appearance  being  made  and  objections  stated  against 
granting  the  discharge,  if  the  same  be  repelled,  to  pronounce  a  deliverance  tind- 
inf  that  the  failure  of  the  Petitioner's  estates,  and  the  estates  of  the  said  company 
to  pay  a  dividend  of  five  shillings  in  the  pound,  has  arisen  from  circumstances 
for  -which  he  cannot  justly  be  held  responsible,  and  to  find  the  Petitioner  entitled 
to  his  discharge  as  a  partner  of  said  A.  B.  cb  Co.,  and  as  an  individual  ;  and  on 
again  considering  tliis  Petition,  with  the  declaration  or  oath  made  by  the 
Petitioner  in  terms  of  the  146th  section  of  the  said  Bankruptcy  (Scotland)  Act, 
1856,  and  on  being  satisfied  with  said  oath  or  declaration,  to  pronounce  a 
deliverance  discharging  the  Petitioner  of  all  debts  and  obligations  contracted  by 
him,  or  for  which  he  was  liable,  as  a  partner  of  said  A.  B.  d-  Co.,  or  as  an  indi- 
vidual, prior  to  the  date  of  the  sequestration  ;  or  to  do  otherwise  in  the  premises 
as  to  your  Lordship  shall  seem  just. 

According  to  Justice,  etc. 

Minute  of  Coxccrrexce  by  Creditors  to  Petition  for  the  Bankrupt's  Discharge,  with 

'  Trustee's  Certificate  thereon. 

{^Place  and  date.'] 

TVe,  being  creditors,  or  mandatories  for  creditors,  of  A.  B.  tt  Co.  [design.],  and  of  A.  B., 
one  of  the  individual  partners  of  that  company,  having  seen  the  report  by  the  trustee 
on  the  sequestrated  estates  of  said  firm  and  partner,  dated  the  day  of 

18     ,  do  hereby  concur  in  a  Petition  to  be  presented  by  the  said  A.  B.  to  the  Lord 
Ordinary,  or  to'the  Sherifi'  of  ,  to  be  finally  discharged  of  all  debts  contracted 

by  hini  before  the  date  of  the  said  sequestration,  in  terms  of  and  under  the  provisions  of 
the  Bankruptcy  (Scotland)  Act,  1856,  and  Acts  explaining  and  amending  the  same. 

[Signed  by  Creditors.'] 

Trustee's  Certificate. 

I,  E.  F.  [design.],  trustee  on  the  sequestrated  estates  of  the  said  A.B.  (L-  Co.  and  A.  B., 
one  of  the  partners  thereof,  as  an  individual,  do  hereby  certify  that  the  creditors  wlio 
have  signed  the  foregoing  Minute  of  Concurrence  to  a  Petition  by  the  said  A.  B.  for  his 
discharge,  form  a  majority  in  numljer  and  more  than  four-fifths  in  value  of  tliose  who 
have  produced  oaths  and  claims  to  be  ranked  on  the  said  sec^uest rated  estates. 

(Signed)        £.  F.,  Trustee. 

[Place  and  date.] 

Sequestration  for  Rent.— See  Hypothec  (vol.  vi.  247). 
Servant. — See  ]\I.v,steu  and  SEiiVAKT;  lliiaxG  ;  etc. 


Service  of  Heirs. — The  Service  of  Heirs  Act,  1847,  replaced  the 
old  practice  regarding  the  service  of  lieirs  by  niiich  simpler  juocedurc. 
The' provisions  of  that  Act  were  repealed,  and  with  certain  alterations 
re-enacted,  by  the  Titles  to  Land  Consolidation  Act,  1868.  Sees.  27  to  58 
of  the  latter  Act,  read  along  with  certain  amending  provisions  of  tlie 
Conveyancing  Act,  1874,  now  regulate  the  procedure  in  the  matter.  It  is 
no  longer  couii)etent  to  issue  brieves  from  Chancery  for  the  service  of 
heirs.  Every  person  desirous  of  being  served  heir  to  a  person  deceased, 
whether  in  general  or  in  special,  and  in  whatsoever  character,  and  wliether 
the  lands  which  Ijclonged  to  deceased  were  or  were  not  lield  by  burgage 
tenure,  must  now  present  a  petition  of  service  to  the  Sheriti"  of  Chancery 
or  of   the   county,  according  to   circumstances.     (For   present   procedure, 


26-i  SERVICES,  TEESOXAL 

jurisdiction,  etc.,  see  Chancery  (Sheriff  of)  ;  Chancery  (Director  of)  ; 
Appeal  from  Sheriff  of  Chancery.) 

Sjwcial  Service  :  General  Service. — If  the  ancestor  died  feudally  vested  in 
the  estate,  the  heir  must  complete  liis  title  by  special  service,  and  on  this 
special  S3rvice  he  must  be  infeft.  Should  the  heir  die  after  being  served 
heir  in  special  but  before  being  infeft,  then  the  ne.xt  heir  must  disregard 
the  special  service,  and  enter  to  the  person  Lsst  infeft.  Where  the  ancestor 
was  uninfeft,  but  held  personal  rights  to  tlie  subjects,  the  heir  expedes 
a  general  service,  the  effect  of  which  is  tliat  he  acquires  a  right  to  the 
unexecuted  procuratories  ami  piecepts,  in  virtue  of  wliich  he  may  be  infeft. 
If  he  die  after  being  served  heir  in  general  but  before  being  infeft,  the 
]iersonal  rights  are  nevertheless  completely  transferred  to  him.  Th(  se  pass 
to  his  own  heir-at-law,  who  must  be  served  heir  to  him  and  not  to  the 
former  proprietor. 

For  an  account  of  tlie  former  procedure  in  service  of  heirs  on  brieves 
f.'om  Cliancery,  see  Erskine,  Inst.  iii.  8,  ss.  59  et  seq. 


Services,   Persona!. — See  Tersonal  Services. 


Servitudes. — Definitions  and  Classification. — A  servitude  is 
defined  by  Erskine  to  be  a  burden  affecting  lands  or  other  heritable 
sul)jects  by  which  the  proprietor  is  either  restrained  from  the  full  use  of 
his  property  or  is  obliged  to  sufier  another  to  do  certain  acts  upon  it, 
which,  were  it  not  for  that  bui  den,  would  be  competent  solely  to  the  owner 
(Ersk.  ii.  9.  1).  Under  this  definition  servitudes  were  divided  into  three 
classes  :  natural,  legal,  and  conventional.  A  natural  servitude  was  one 
which  was  constituted  by  the  natural  position  of  the  burdened  property, 
such  as  tlie  burden  of  receiving  the  water  which  fell  from  a  su];erior 
property  (see  Campbell,  18G4,  3  M.  254).  Among  such  natural  servitudes 
may  be  included  the  burden  of  supporting  the  natural  surface  stratum  of 
an  estate  imposed  by  tlie  law  of  neighbourhood  on  the  subjacent  strata  or 
adjacent  properties  (Kankine,  Landoicn.  426  et  seq.).  Such  natural  burdens 
are  not  now  included  among  true  servitudes.  A  legal  servitude  was  a 
burden  constituted  by  statute  or  by  long  custom  from  the  considera- 
tion of  public  necessity,  such  as  a  regulation  limiting  the  height  of 
buildings  in  cities.  This  is  not  now  considered  properly  a  servitude, 
though  servitudes  may  be  constituted  by  statute.  Courtesy  and  terce 
have  also  been  called  legal  servitudes  ;  but  these  being  personal  rights, 
are  not  servitudes  at  all.  A  conventional  servitude  was  a  burden  im- 
posed by  agreement,  express  or  implied,  and  almost  all  true  servitudes 
are  conventional.  Another  old  division  of  servitudes  was  into  the 
classes  of  pnedial  or  real  and  personal.  Pra'dial  servitudes  were  those 
which  were  constituted  in  favour  of  a  tenement,  and  only  by  consequence 
of  a  person  as  the  owner  of  that  tenement.  Personal  servitudes  were  those 
constituted  principally  in  favour  of  persons,  and  the  only  well-known 
examples  of  this  class  were  liferents.  But  a  liferent  is  not  now  considered 
to  be  a  servitude  (see  Ld.  Pros.  Inglis  in  Fatricl;  18G7,  5  M.  699);  so  that 
the  only  true  servitudes  are  pnedial  or  real  (Ersk.  ii.  9.  2,  3,  5  ;  Bell,  Frin. 
980,  981).  A  servitude  may  accordhigly  be  said  to  be  a  burden  imposed 
by  agreement,  express  or  implied,  or  by  statute,  on  a  tenement  consisting 
of  lands  or  other  heritable  subjects,  in  favour  of  a  neighbouring  tenement, 
whereby  the  owner  of  the  burdened  tenement  is  either  restrained  from  the 


SEEVITUDES  265 

full  use  of  his  property  or  is  obliged  to  suffer  the  owner  of  the  other 
tenement  to  do  certain  acts  upon  the  burdened  tenement  which,  in  the 
absence  of  that  burden,  would  be  competent  solely  to  the  owner.  Looked  at 
from  the  point  of  view  of  the  owner  of  the  tenement  in  favour  of  which 
the  burden  is  created,  a  servitude  is  a  privilege  whereby  such  owner  can 
restrain  the  owner  of  the  burdened  tenement  from  exercisiu'ji;  his  full  right 
of  ownership,  or  is  entitled  to  certain  limited  uses  of  the  burdened  tene- 
ment (Ersk.  ii.  9.  1 ;  Stair,  ii.  6,  ii.  7 ;  Bell,  Prin.  979). 

The  idea  of  servitude  as  defined  involves  that  there  must  be  two 
tenements  {Patricl-,  1867,  5  M.  683  ;  Ersk.  ii.  9.  5).  These  tenements  must 
be  distinct  and  owned  by  dilTerent  persons;  for  nvlli  irs  sua  servit  {Baird, 
1859,  21  D.  848 ;  rev.  1861,  23  D.  H.  L.  5,  4  Macq.  127,  applied  1861,  23  D. 
1080;  Donaldsons  Trs.,  1839,  1  D.  449).  If  two  tenements  are  owned  by 
the  same  proprietor,  though  possessed  by  different  tenants,  no  servitude  can 
exist  in  favour  of  the  one  over  the  other  (see  M'Bonald,  1871,  10  M.  94; 
cf.  Grierson,  1882,  9  II.  437).  The  tenements  must  be  neighbouring,  but 
need  not  be  contiguous.  The  only  essential  is  that  the  distance  between 
the  two  be  not  so  great  as  to  obstruct  all  benefit  from  the  servitude  (Ersk. 
ii.  9.  33 ;  ratrick,  1867,  5  M.  683). 

The  burdened  tenement  is  called  the  servient  tenement,  and  its  owner 
the  servient  owner,  while  the  tenement  in  favour  of  which  the  burden  is 
constituted  is  calletl  the  dominant  tenement,  and  its  owner  the  dominant 
owner  (Bell,  Prin.  979).  Servitudes  are  divided  into  the  two  classes  of 
urban  and  rural.  Urban  servitudes  are  those  constituted  in  favour  of 
tenements  of  houses  though  situated  in  the  country  ;  rural  servitudes  are 
those  acquired  for  such  subjects  as  fields,gardens,  farms,  including  dwelling- 
houses  and  offices  built  for  the  use  of  a  farm,  even  though  situated  in  a 
city  (Ersk.  ii.  9.  6 ;  Bell,  Prin.  983).  This  distinction  cannot,  however,  be 
said  to  be  of  universal  application,  for  a  servitude  created  in  favour  of  an 
urban  subject  may  in  its  nature  be  essentially  a  rural  servitude  (>ee,  e.g., 
Inhahitants  of  Dansc,  1732,  Mor.  14517).  Other  divisions  are  into  tlie 
classes  of  positive  and  negative,  apparent  and  non-apparent,  continuous 
and  discontinuous.  liy  a  positive  servitude  the  servient  owner  is  com- 
pelled to  allow  the  dominant  owner  to  make  certain  uses  of  the  servient 
tenement  wliicli  otherwise  he  could  prevent.  By  a  negative  servitude  the 
servient  owner  is  restrained  in  some  way  from  exercising  his  full  rights 
as  proprietor  of  the  subjects  (Bell,  Prin.  982).  In  the  former  case  tlie 
burden  is  jmtieyidi,  in  the  latter  it  is  non  facicndi.  Bural  servitudes 
are  all  positive,  urban  are  mostly  negative,  thougli  some  are  positive. 
Apparent  or  manifest  servitudes  arc  those  which  furnisli  manifest  signs 
of  their  existence,  as  tlie  burden  of  allowing  a  door  or  a  window  to 
exist  in  a  wall  is  manifested  by  the  existence  of  the  door  or  window. 
Xon-apj»aient  or  non-manifest  servitudes  are  those  which  have  no  such 
external  proofs  of  theii'  existence,  as,  e.g.,  the  prohi])ition  from  buikling 
above  a  certain  height  (Bankine,  375).  Continuous  servitudes  arc  i\w?e 
which  are  exercised  without  the  necessity  of  personal  acts  on  tlic  ])ait  of 
the  dominant  owner,  as,  for  examjile,  a  servitude  of  aqueduct,  discon- 
tinuous or  interruj)ted  servitudes  refpiire  for  their  exercise  actual  ]'ersonal 
acts,  ami  include  such  servitudes  as  rights  of  way  (see  Code  Civil,  688). 

Genkuai>  Rules  reoardixg  Exeucisk  ok  Sekvii  i  hks. — Maintenance  of  the 
Sidijects  required  for  the  Purpose  of  the  Scrnitude. — It  follows  from  the  nature  of 
a  servitude  as  a  real  and  not  a  pprsnn;d  l)urdfn  th.it  it  im]iosps  no  obligation 
on  the  servient  owner  to  do  anything  (Misk.  ii.  9.  1).  He  is  n<it  Ixiund, 
for  example,  to  keep  in  repair  for  the  use  of  the  dominant  owner  a  road  or 


266  SEKVITUDES 

a  drain.     Such  an  obligation  would  in  general,  unless  appearing  on  record, 
be   a  mere  personal   obligation  superadded   to  the  servitude,  and  so  not 
enforceable  against  singular  successors  of  the  servient  owner  (Bell,  Pnn. 
984).     It  may,  however,  be  an  essential  condition  in  the   constitution  of 
the   servitude,  so  that   the   servitude   cannot  be  enforced  apart  from  it 
{Tennant,  1888,  15  B.  671).      Even  the   owner  of  a  wall  subject  to   the 
servitude  of  support  is  not  bound  to  maintain  the  wall  nnless  he  comes 
under  that  obligation  in  virtue  of  the  law  of  common  interest  (Bell,  Prm. 
98-4;  Kankine,  364;  but   see  Bankt.  ii.  7.  2).      On   the  other  hand,  the 
servient  owner  must  allow  the  dominant  owner  access  for  performing  all 
operations  required  for  preserving  and  making  use  of  the  servitude,  but 
only  when  necessary  {Stevenson,  1867,  3  S.  L.  E.  184;  Prcstoiis  Trs.,  1860, 
22  D.  366  ;  Middkton,  1765,  5  Br.  Sup.  904 ;  Bell,  Prin.  985).     Where  the 
dominant  owner  in  a  servitude  of  access  had  erected  stiles  and  gates  for  the 
purpose  of  access,  and  had  possessed  them  peaceably  for  seven  years,  the 
servient  owner  was  held  not  to  be  entitled  to  remove  them  Ircvi  manu 
(Blacl-hurn,  1869,  6  S.  L.  E.  318).     The  dominant  owner  is  liable  to  recom- 
pense the  servient  for  any  damage  which  may  result  to  his  property  from 
neglect  to  keep  in  repair  works  pertaining  to  the  servitude  right,  such  as  a 
mill  lade  (Eankine,  864;  Dundee  Parson,  1687,  Mor.    14521;  but   comp. 
Carlile,  1731,  Mor.  14524). 

Servitude  exereised  for  Be7iefit  of  Dominant  Tenement  only. — The  proprietor 
of  the  dominant  tenement  cannot  communicate  the  benefit  of  the  servitude 
to  any  third  party  not  possessing  the  dominant  tenement  or  part  thereof 
{Murray,   8   Dec.    1808,  F.    C. ;   but  comp.  Ersk.   ii.  9.    5).     Xor  can  he 
exercise  the  servitude  for  the  benefit  of  another  tenement  owned  by  him, 
even  though  held  by  the  same  title  {Scott,  6  July  1809,  F.  C. ;  Anstruther, 
1861,  24  D.  149  ;  Stewart,  1788,  Hume,  731 ;  Magistrates  of  Dunlar,  1829, 
7  S.  672).     Further,  the  benefit  of  the  servitude  is  confined  to  the  use  of 
the  dominant  tenement  which  must  be  taken  to  have  been  in  contempla- 
tion of  the  parties  in  creating  the  servitude  (Ersk.  ii.  9.  34 ;  Bell's  Prin. 
986;  Gihh,  1837,  16  S.  169;  L.  C.  Hatherley  in  Graham,  1869,  7  E.  976; 
rev.  1871,  9  E.  H.  L.  98).     Thus  a  proprietor  of  a  servitude  of  casting  and 
winning  slate  and  stone  is  not  entitled   to   exercise  it  for  sale  {Murray, 
supra;  Broivn,  1775,  Mor.  14542);  and  one  in  right  of  a  servitude  of  casting 
peats  for  fuel  for  himself  and  for  sale  cannot  communicate  it  to  feuars  or 
tenants    {Cardairs,  1829,    7    S.  607;    see    Murdoch,    1823,    2    S.  ^159),   or 
extend  it  to  an  ironwork  (Ersk.  ii.  9.  34)  or  limework  {Leslie,  1793,  Mor. 
14542)  opened   on   his   lands,  or   to   any  other  manufacture   which  may 
require  an  extraordinary  supply  of   fuel,  and  which  was  not  erected  till 
after    acquiring   the   servitude  (Ersk.  ii.  9.    34).      Where  the  right   coii- 
ferred  by  the   servitude   is   not   exhaustible,  such   as   a   right  of  way,  it 
is  more  uncertain  how  far  it  can  be   communicated  to   others  connected 
with  the  dominant  tenement,  such  as  tenants  or  feuars.     The  principle  by 
which  any  such  question  must  be  answered  is  that  the  dominant  owner 
cannot  without  the  consent  of   the  servient  owner  increase  the   burden 
intended  to  be  imposed  on  the  servient  tenement  by  the  constitution  of  the 
servitude  {Eohertson,  1825,  1  F.  126;  1829,7  S.  344;  Magistrates  of  Diinlar, 
1829,  7  S.  672). 

Burden  not  to  he  increased,  and  Servitude  to  he  exercised  in  way  least 
Burdensome  to  Servient  Owner. — On  the  same  principle,  the  dominant  owner 
cannot,  for  example,  in  a  servitude  of  support  constituted  by  grant,  lay  a 
greater  weight  on  the  servient  tenement  than  is  expressly  stipulated  for  m 
the  grant  (Ersk.  ii.  9.  34 ;  Young,  1831,  9  S.  500).     If  the  deed  constitut- 


SERVITUDES  267 

iucp  the  servitude  can  be  interpreted  in  more  than  one  way,  that  way  is 
chosen  which  is  most  favourable  to  the  servient  owner  {Clark  &  Sons,  1898, 
25  E.  919).      If  there  are  different  degrees  in  a  servitude,  then,  in  the 
absence  of  anything  to  the  contrary  in  the  terms  of  the  grant  or  in  the 
state  of  possession  by  the  dominant  owner,  that  degree  is  presumed  which 
is  lio-htest  on  the  servient  tenement  {Davson,  1824,  3  S.  136;  rem.  1826, 
2  W.  &  S.  230;   alt.  1827,  6  S.  19 ;   rev.  1830,  -4   W.  &   S.  81,  per  Ld. 
Wynford,  p.  92 ;  BuJce  of  Argyll,  1831,  9  S.  763 ;  rev.  1832,  6  W.  &  S.  98). 
The  dominant  owner  must  exercise  his  right  in  the  way  least  burdensome 
to  the  servient  (Farl  of  Ahoync,  22  June  1813,  F.  C. ;  affcl.  1819,  6  Pat. 
444;  Glasgow  Magistrates,  1776,  5  Br.  Sup.  598;  Ersk.  ii.  9.  34),  and  the 
servient  owner  is  not  debarred  from  the  use  of  his  property  further  than 
the  exercise  of  the  servitude  by  the  dominant  owner  requires  (Ersk.  ii.  9. 
34;  Rattray,  1868,  5  S.  L.  E.  219).     Where  there  is  a  servitude  of  watering 
cattle,  the  servient  owner  may  water  his  cattle  along  with  those  of   the 
dominant  owner  (Bell,  Prin.  987).     The  owner  of  a  stream  subject  to  a 
servitude  of  taking  water  may  take  as  much  water  as  he  requires  for 
primary  uses,  if  sufficient  is  left  for  the  dominant  owner  {Donaldson,  1877, 
14  S.  L.  E.  587).     The  dominant  owner  of  a  servitude  of  dam  and  aqueduct 
cannot  prevent  the  servient  owner  from  utilising  the  surplus  overtlow,  pro- 
vided he  does  not  interfere  with  the  dominant  owner's  rights  {Scottish 
Highland  Distillery  Co.,  1877,  4  E.  1118).     In  the  case  of  a  servitude  of 
pasturage,  the  servient  owner  may  pasture  his  stock  along  with  those  of 
the  dominant  owner  (liell,  Prin.  1013);  or  may  even  plough  up  part  of  the 
property,  so  long  as  he  leaves  sufficient  grass  for  the  dominant  owner,  the 
servitude  remaining  in  force  over  the  i)loughed  portion,  so  that  it  can  be 
exercised  when  the  ground   is  again  laid  down  in  grass  (Ersk.  ii.  9.  34; 
E.  Southcsl;  supm).      A    proprietor  may  similarly    cvdtivate    part   of   his 
ground  notwithstanding  the  existence  of  a  servitude  of  taking  fuel  {Watson, 
1667,  Mor.  14529;  Dunnikicr   Vassals,  1670,  2  Br.  Sup.  466,  1  Br.  Sup. 
615).     He  may  also,  in  spite  of  a  servitude  of  fuel  or  of  pasturage,  open 
up  the  surface  of  the  ground  for  the  purpose  of  getting  at  minerals  (Ersk. 
ii.  9.  34),  or  he  may  grant  furtlier  servitudes  {Dunnikicr  Vasscds,  supra). 

The  servient  owner  may  make  such  repairs  and  alterations  as  will 
lighten  the  burden,  provided  he  does  not  interfere  with  the  dominant 
owner's  right  (Bell,  Prin.  987,  Murray,  1715,  Mor.  14521;  Ferguson,  12 
Nov.  1816,  F.  C;  Rohcrtson,  1784,  Mor.  14534;  Dcnnistoun,  1824,  2  S. 
784;  Gray,  1825,  4  S.  104;  Plrnie,  5  June  1819,  F.  C).  Thus  the  pro- 
prietor of  a  tenement  subject  to  a  servitude  right  of  footpath  (see  Bell, 
Prin.  1010)  may  erect  stiles,  turnstiles,  or  swing -gates  across  it,  l)ut 
cannot  lock  the  gates  even  though  he  gives  the  dominant  owner  a  key 
{Borthwick,  1799,  Hume,  513;  Oliver,  1869,  8  M.  137;  D.  Roxburgh,  1713, 
Mor.  10883;  but  see  Mags,  of  Glasgow,  1776,  5  I'.r.  Sup.  598;  and  cf. 
Sutherland,  1876,  3  E.  485).  He  may  put  up  swing-gates  across  a  cart  or 
carriage  road  {Wood,  9  March  1809,  V.  C).  He  may  alter  the  course  of  a 
servitude  road  or  jjath  if  lie  gives  a  route  equally  convenient  {IJrvce,  1748, 
jMor.  14525 ;  Ross,  1751,  Mor.  14531 ;  Elch.  v.  "  Servitude,"  No.  5  ;  Mags,  of 
Renfrew,  1823,  2  S.  458  ;  Thomsons  Trs.,  1898,  25  E.  407  ;  l)ut  cf.  J/ill,  1879, 
6  E.  1363),  but  he  may  not  make  altcjrations  of  a  material  and  extensive 
character  on  a  servitude  road  unk'ss  with  tbe  authority  of  the  Court  or  tlie 
dominant  owner  {IJain,  1871,  8  S.  L.  E.  539).  He  may  liave  tbe  route 
defined  if  indefinite  (Mackintosh,  1872,  10  M.  517),  and  sometimes  may  even 
cover  it  over  to  a  limited  extent  (Allnus,  1801,  4  Eat.  269  ;  see  o]iinions  in 
Argyllshire  Conimrs.  of  Supply,  1885,  12  E.  1255;  and  cf.  Richmond,  1868, 


238  SERVITUDES 

5  S.  L.  R  308 ;  Mackenzie,  1869,  7  M.  419  ;  Bennett,  1877,  4  E.  321).  But 
a  proprietor  who  has  a  servitude  right,  constituted  by  grant,  of  access  to 
his  property  by  a  specified  close  through  the  property  of  another,  can 
prevent  the  dominant  owner  from  narrowing  that  access  (Fcrrier,  1832, 
10  S.  317;  Grigor,  1890,  24  II.  86;  cf.  Crawford,  1896,  4  S.  L.  T.  85; 
Ferrier,  1832,  10  S.  317  ;  Crawford,  1874,  2  li.  20).  This  may  seem  incon- 
sistent with  the  principle  that  the  servient  owner  must  exercise  his  right 
in  the  way  least  burdensome  to  the  servient  tenement,  and  that  therefore 
all  he  can  ask  in  a  servitude  road  is  just  sufficient  width  for  his  access. 
But  in  these  cases  the  grant  was  not  a  right  of  access  merely,  but  a  right 
of  access  by  a  particular  passage.  Ld.  Young  in  Grigor  doubted  if  the 
right  was  properly  a  servitude  at  all.  The  servient  owner  may  cover 
over  a  watercourse  although  subject  to  a  servitude  of  watering  catile,  i)ro- 
vided  he  leave  sufficient  access  to  the  water  for  the  servient  owner's  cattle 
(Bcveridge,  18  Nov.  1808,  F.  C). 

What  may  be  the  Dominant  Tenement. — Some  difficulties  arise  as  to 
what  may  be  the  dominant  tenement  in  a  servitude.  It  has  not  been 
settled  whether  an  incorporeal  right,  such  as  a  right  of  salmon  fishing 
or  of  port,  can  be  the  dominant  tenement  (see  Eankine,  p.  369).  The 
magistrates  and  council  of  a  royal  burgh  may  acquire,  by  grant  or  by 
prescription,  servitudes  over  the  property  of  other  persons  (Sinclair,  1779, 
Mor.  14519;  Murray,  8  Dec.  1808,  F.  C. ;  3Iags.  of  Earlsferry,  1829,  7  S. 
755;  1832,  11  S.  74;  Mags,  of  Dundee,  1843,  6  D.  12;  1858,  20  D.  1067; 
Town  of  Falkland,  1708,  Mor.  10910),  and  the  right  may  be  vindicated 
either  by  the  magistrates  themselves  or  by  any  of  the  inhabitants 
{Clcghorn,  1805,  Mor.  16141;  rem.  1813,  2  Dow,  40;  see  Jaffray,  1755, 
Mor.  2340,  14517;  rev.  1757,  1  Fat.  632).  But  in  the  case  of  a  burg  i 
of  barony  there  is  more  doubt.  It  is  difficult  to  distinguish,  for  this 
purpose,  between  royal  burglis  and  burghs  of  barony.  A  burgh  of 
barony  is  a  quasi  corporation  (see  Home,  1846,  9  D.  286;  and  Ld.  Black- 
l)urn  in  Smith,  7  F.  (H.  L.)  at  p.  38).  But  in  Feuars  of  Bunse,  1732, 
Mor.  1824,  14517  (approved  in  Home,  sujnrc,  and  Byce,  1849,  11  D.  1266; 
ali'd.  1852,  1  Macq.  305),  it  was  decided  that  the  inhabitants  of  a  burgh 
of  barony  cannot  claim  a  servitude  of  pasturage  over  lands  outside  the 
bounds  of  the  burgh  unless  in  the  character  of  proprietors  of  houses  in 
the  burgh.  This  case  has  been  cited  to  support  the  view  that  burghs  of 
barony,  or  their  inhabitants,  cannot  possess  servitudes  at  all ;  but  it  would 
rather  seem  that  this  depends  on  the  nature  of  the  servitude  claimed. 
Thus,  in  the  case  of  Home,  Ld.  Mackenzie  said :  "  It  is  difficult  to  under- 
stand how  a  right  of  pasturage  could  belong  to  all  the  inhabitants  of  a 
1  )urgh  " ;  and  in  the  case  of  Byce,  Ld.  J.-Cl.  Hope  said  that  the  ground  of 
the  decision  in  the  Bunse  case  was  that  no  such  indefinite  and  general 
burden  could  be  imposed  on  tlie  property  of  a  third  party  where  there  was 
no  dominant  tenement  to  which  it  could  be  ascribed.  In  another  part  of 
his  opinion  he  said :  "  In  the  cases  in  which  any  support  has  been  given  t<> 
a  claim  by  the  inhabitants  of  a  biirgli  (and  I  do  not  here  draw  any  dis- 
tinction between  a  royal  burgh  and  a  liurgh  of  barony)  to  any  general 
privilege  of  a  personal  kind  over  the  property  of  another,  it  has  been  in 
cases  in  which  the  privilege  claimed  has  been  for  the  purposes  of  domestic 
use  and  comfort  and  necessity, — such  as  the  use  of  water,  of  access  to  roads, 
of  bleaching  and  drying  linen,  and  the  like,— and  that  on  ground  either 
within  the  burgh  or  so  connected  with  it  by  occupation  and  position  as  in 
truth  to  be  practically  part  of  it."  In  the  same  case  Ld.  Cockburn  ex- 
presses the  view  that  an  inhabitant  of  a  burgh  of  barony  may  have  a  right 


SEKVITUDES  269 

to  a  servitude  over  the  property  of  another  person,  and  has  a  title  to 
enforce  it,  and  he  does  not  distinguish  between  the  cases  where  the  servient 
tenement  is  within  and  where  it  is  without  the  burgh  boundaries.  An 
important  distinction  in  this  class  of  cases  is  referred  to  by  Ld.  J.-Cl.*Hope 
in  Dyce.  He  says :  "  I  allude  to  the  broad,  important,  and  most  discriminating 
distinction  between  the  cases  of  burdens  or  servitudes  attempted  to  be  con- 
ferred on  proprietors  between  whom  and  the  claimants  there  is  no  connection 
whatever,  either  as  to  the  relative  rights  of  superior  and  vassal, — or  of  baron 

and   inhabitants  of  a  burgh  of  barony — or  of  corporation  and  burgess, 

and  the  cases  in  which  the  inhabitants  of  a  burgh  of  barony  are  maintain- 
ing certain  privileges  or  rights  as  llowing  from  or  part  of  the  grant  in  the 
erection  of  the  burgh  of  barony— or  the  burgesses  or  community  of  a  buro-h 
are  contending  that  certain  property  belonging  to  the  corporation  is  held 
merely  for  tlie  purpose  of  the  public  use  of  the  whole  community— or  in 
which  vassals  on  large  feuing  grounds  are  contending  that  the  common 
superior  had  truly  devoted  part  of  his  ground,  or  wells,  or  water  adjoinino- 
for  the  benefit  of  those  taking  feus  from  him,  so  that  such  privilege  came 
to  be  a  pertinent  or  adjunct  of  the  feu,  or  a  part  of  the  plan  on  which  they 
relied  in  taking  their  feus."  To  the  latter  class  of  cases  may  be  assic^ned 
such  cases  as  Mags,  of  Kilmarnock,  1776,  5  Br.  Sup.  406 ;  Home,  mpra 
(but  see  Ld.  Cockburn  in  Dyce,  11  D.  at  p.  1285);  Sanderson,  1859  22  D 
2-t;  PcUerson,  1879,  7  E.  712;  affll.  1881,  8  E.  (H.  L.)  117;  Grahame  1879* 
<J  E.  1066;  1881,  8  E.  395  ;  affd.  1882,  9  E.  (H.  L.)  91.  These  cases  inay  be 
looked  on  as  cases  of  maladministration  or  breach  of  trust  on  the  part  of 
persons  holding  rights  for  the  community  which  they  are  bound  to  protect 
(see  Lds.  FuUerton  and  Jeffrey  in  Home,  and  Ld.  Chancellor  in  Dyce, 
1  Macq.  at  p.  311),  rather  than  as  cases  of  servitude.  In  the  cases  of 
Jaffray,  1755,  Mor.  2340,  14517;  rev.  1757,  1  Pat.  632;  Dyce,  supra; 
Harvey,  1853,  15  D.  768;  Henderson,  1860,  22  D.  1126,  rights  of  alleged 
servitude  were  denied  to  inhabitants  of  burghs  or  villages,  but  the  reason 
in  each  case  was  the  peculiar  nature  of  the  servitude  claimed,  or  the 
indefinite  way  in  which  it  was  claimed,  or  because  the  inhabitants  had 
not  estaljlished  the  ground  of  their  claim  to  tlie  servitude.  In  Jaffray, 
indeed,  the  Court  of  Session  sustained  the  claim  of  a  burgh  of  barony  to  a 
servitude  of  bleaching,  and  the  House  of  Lords  reversed  the  decision, 
apparently  on  other  grounds  than  want  of  title  in  the  burgh  to  hold  a  servi- 
tude (see  Ld.  Eres.  in  Home,  and  Ld.  J.-Cl.  in  Dyce).  In  the  case  of  Sharp 
(1829,  7  S.  679)  the  question  was  raised  but  not  decided,  whether  the 
character  of  inliabitant  merely  of  a  burgh  of  barony  was  a  sufficient  title 
to  pursue  in  a  declarator  of  a  servitude  right  to  carry  off  sand  and  gravel 
from  the  bed  of  a  river,  and  to  draw  water  therefrom.  The  Lord  Urdinary 
found  that  being  a  feuar  or  inhaljitant  gave  a  sufficient  title.  The  defender 
reclaimed,  but  the  Inner  House  found  it  unnecessary  to  decide  wlietlier 
inhabitancy  was  enough  or  not.  In  Aikman  (1830,  8  S.  943;  alt.  1832, 
G  W.  S.  64)  the  House  of  Lords  found  that  the  pursuer  liad  a  title  only  to 
insist  in  the  action  as  one  of  the  inhabitants  of  Hamilton  (a  burgh  of 
regality),  or  as  owner  of  certain  lands  therein,  to  the  effect  of  having  it 
tried  by  a  jury  whether  or  not  he  liad  a  right  of  servitude  to  take  sand  and 
gravel  from  the  ground  of  tlie  defender  in  right  of  and  for  the  use  of  bis 
own  properties,  but  the  limitation  appears  to  have  been  on  account  of  the 
indefinite  character  of  the  claim  in  the  summons  (see  Ld.  Fullerton  in 
Home).  In  Mercer  v.  Rutherford  (1 840,  2  D.  6 16)  an  inhal)itant  of  a  village 
was  all'iwed  an  issue  for  proof  before  a  juiy  of  ]»ossessioii  of  a  right  of  way 
by  himself  and  the  other  inhabitants  of  the  village,  thou-^h  he  did  not  insist 


270  SERVITUDES 

on  an  issue  for  proof  tliat  it  was  a  public  footpath.  In  Mercer  v.  lieid, 
1840,  2  D.  520,  a  similar  issue  was  allowed,  although  in  this  case  also  what 
was  claimed  was  not  a  public  right  of  way,  but  a  private  right  of  way 
in  favour  of  the  portioners  and  inhabitants  of  a  particular  village.  In 
Tliorburn,  1841,  4  D.  1G9,  although  the  pursuer  claimed  a  right  of  access  to 
and  of  taking  water  from  a  mill  runner  in  respect  of  his  proprietorship  of 
lands  in  the  neighbourhood,  lie  was  allowed  to  found  on  possession  by  the 
other  inhabitants  of  the  neighbourhood  (but  see  E.  of  Morton,  1813,  1  Dow, 
91).  In  Bcveridf/e,  18  Nov.  1808,  F.  C.,it  was  assumed  that  the  inhabitants 
of  the  town  of  Kinross  could  acquire  a  servitude  of  watering  cattle  in  a 
stream  belonging  to  another  party,  and  had  a  title  to  protect  it  apparently 
as  such  inhabitants  merely.  In  Rome,  1846,  9  D.  286,  the  inhabitants  of 
Eyemouth,  a  burgh  of  barony,  were  held  to  have  a  title  to  defend  their 
right  to  bleach  on  property  of  the  baron.  Ld.  Pres.  Boyle,  however,  con- 
sidered it  not  a  case  of  a  servitude  at  all,  but  rather  of  trust  property  in 
the  hands  of  the  baron ;  but  in  Dyce,  Ld.  Cockburn,  delivering  a  dissenting 
opinion,  said  he  did  not  consider  that  the  fact  that  the  defender  in  Rome 
was  the  baron  was  essential.  He  considered  that  the  result  of  the  case 
was  that  the  inhabitants  of  the  burgh  were  allowed  to  prove  a  servitude 
over  the  property  of  a  third  party.  These  cases  seem  to  indicate  that  an 
inhabitant  of  a  burgh  of  barony,  or  even  of  a  mere  village,  may  as  such 
acquire  and  protect  rights  of  servitude,  provided  these  rights  are  suitable 
for  exercise  by  the  community.  This  view  is  strengthened  by  the  case  of 
Smith,  1879,  6  R.  858  ;  affd.  1880,  7  K.  (H.  L.)  28.  There  it  was  admitted  by 
Ld.  Adv.  AVatson  before  the  House  of  Lords,  with  the  approval  of  the  judges, 
that  the  inhabitants  of  Denny,  an  unincorporated  village,  had  acquired 
a  servitude  of  aquccJiaustus  from  a  well  on  the  property  of  a  neighbouring 
proprietor.  In  the  Court  of  Session,  Ld.  Gifford  said :  "  It  is  a  right  of 
servitude  acquired  by  that  portion  of  the  estate  of  Cumbernauld  on  which 
the  village  of  Denny  stands,  a  right  to  use  this  well.  The  dominant  tene- 
ment is  that  portion  of  Cumbernauld  occupied  by  the  village." 

There  is,  however,  a  good  deal  of  authority  for  the  view  that  mere 
inhabitancy  of  a  burgh  of  barony  or  of  a  village  can  give  no  right  to  acquire 
a  servitude.  In  Smith,  Ld.  Ormidale  said :  "  I  must  hold  it  to  be  also  clear, 
on  the  authorities  which  were  cited  at  the  debate,  and  in  particular,  the 
cases  of  Ililne  Home  (1846,  9  D.  286),  Mackenzie  (1849,  12  D.  132),  and 
Henderson  (1860,  22  D.  1126),  that  a  servitude  to  the  use  of  a  well  situated 
on  the  property  of  another  could  not  be  acquired  by  the  inhabitants  of 
a  village  simply  as  such.  I  could  understand  that  a  servitude  might  be 
acquired  by  a  feuar  or  several  feuars,  for  in  that  case  the  facts  might  be 
sufficient  to  show  that  there  was  a  dominant  tenement ;  but  in  the  present 
case  there  is  no  dominant  tenement  in  respect  of  which  any  servitude  could 
have  been  acquired  or  could  exist,  at  least  none  such  has  been  mentioned 
or  referred  to  in  the  record."  In  Dyce,  Ld.  J.-Cl.  Hope  said  that  while  it 
was  clear  that  there  were  no  proper  personal  servitudes  in  the  law  of 
Scotland,  the  servitude  claimed  could  only  be  exercised  as  a  personal 
servitude  if  being  the  inhal)itant  of  a  burgh  could  give  right  to  acquire 
such  a  servitude  (see  also  Maclenzic,  1849,  12  D.  132;  and  Ld.  Medwyn 
in  Fergusson,  1844,  6  D.  1363,  at  p.  1370). 

The  servitudes  which  may  be  held  by  burghs  or  by  similar  communities 
partake  of  the  nature  of  public  rights.  The  only  recognised  public  right  of 
similar  nature  to  a  servitude  is  a  public  right  of  way  (see  Eight  of  Way), 
although  attempts  have  been  made  to  establish  other  public  rights,  such  as 
a  right  to  drove  stances  and  of  pasturing  therein  (M.  Brcadalhanc,  1846, 9  D. 


SERVITUDES  271 


210;  alt 
10  M.  29 


..  1848,  7  Bell's  App.  43),yns  spatiandi  {MacJdntosh,  1871,  9  M.  574, 
)  (1872),  517 ;  Jenkins,  1866,  4  :\I.  1046),  a  right  to  curling,  skating^ 
and  sliding  {Harvey,  1853,  15  D.  768),  to  trout  fishing  {Fergusson,  1844,' 
6  D.  1363;  Montgomery,  1861,  23  D.  Q?jo)\  to  hold  public  markets,  to 
quarry  stones  (JlacJcintosh,  supra;  Henderson,  1860,  22  D.  1126);  to  take 
away  clay,  feal  and  divot,  to  water  and  dry  lint,  to  dry  hay,  to  use  o-round 
for  public  games  and  exhibitions,  and  for  a  playground  {Henderson,  supra), 
and  to  pasture  and  bleach  {Mackintosh,  supra).  Nor  can  there,  strictly 
speaking,  be  a  public  right  of  drawing  water  (see  Maclrnzie,  1849,  12  1) 
132 ;  Smith,  supra;  L.  Melville,  1842,  4  D.  1231 ;  Geils,  1872,  10  M.  327). 

What  Burdens  may  be  Servitudes. — An  important  question  is  whether 
the  number  of  enforceable  servitudes  is  limited  or  not.  Stair  says :  "  To 
descend  now  to  the  kinds  of  servitudes :  there  may  be  as  many  as  there 
are  ways  whereby  the  liberty  of  a  house  or  tenement  may  be  restrained  in 
favour  of  another  tenement ;  for  liberty  and  servitude  are  contraries,  and 
the  abatement  of  the  one  is  the  being  or  enlargement  of  the  other  "  (Stair,  ii. 
7.  5  and  9) ;  and  Erskine  makes  a  similar  statement  (Ersk.  ii.  9.  2).  This, 
however,  has  been  thought  too  wide  a  statement.  Bell  says  :  "  It  has  there- 
fore been  held  essential  that  this  burden  should  be  limited  to  such  uses  or 
restraints  as  are  well  establislied  and  defined,  leaving  others  as  mere 
personal  agreements"  {Y>e\l,  Frin.  979;  see  also  Ld.  Gifford  in  Alexander, 
1875,  3  R.  156).  But  new  servitudes  have  been  recognised  by  the  Courts  ; 
and  referring  to  this,  in  the  case  of  Home,  1846,  9  1).  286,  Ld.  Ordiuarv 
Cuninghame  said  (p.  290)  that  there  had  been  a  great  change  and 
enlargement  in  modern  times  as  to  the  principles  on  which  claims  of 
servitude  or  of  qualified  uses  of  property  ought  to  receive  effect.  In  Dycc 
(1849,  11  D.  1266;  alfd.  1852,  1  Macq.  305),  however,  Ld.  J.-Cl.  Hope 
denied  this,  pointing  out  that  Stair's  statement  covered  every  case 
decided  since  his  time.  Ld.  Cockburn,  in  the  same  case  (11  D.  at  p.  1283), 
stated  the  point  very  clearly,  saying :  "  Every  party  who  has  ever  resisted 
the  introduction  of  a  now  servitude  has  invariably  argued  that  the  whole 
possible  class  of  them  was  already  known  and  named,  and  that  the  intro- 
duction of  a  new  one  was  proved  to  be  illegal  by  the  mere  fact  of  its 
novelty.  I  am  not  aware  of  any  authority  for  this  principle,  and  it  has 
been  conspicuously  refuted  by  the  past  history  of  the  law.  If  it  had  been 
sound,  we  would  never  have  got  beyond  the  days  in  which  land  was  only 
required  for  its  simplest  primary  uses  ;  and  the  admissible  servitudes  would 
all  have  been  fixed  and  catalogued  ages  ago.  But,  in  place  of  tliis,  it  is 
certain  that  new  circumstances  liavc  been  constantly  changing  and  multi- 
plying them.  The  recogniLion  within  no  very  distant  period  of  l)leachin'>- 
and  golfing  as  servitudes  are  examples,  and  our  books  are  full  of  others. 
The  law  nowhere  pretends  to  specify  all  possible  servitudes  prospectively. 
It  only  sujiplies  the  root  from  which  they  are  to  spring.  This  root  is 
described  by  Stair,  who,  after  mentioning  some  of  '  the  chief  servitudes  in 
use  with  us,'  ex])lains  that 'the  pnedial  or  country  servitudes  whereby  one 
ground  or  lidd  is  subservient  to  another  may  be  as  manifold  as  the  free  use 
of  the  one  may  1)C  restrained  or  inqiaiied  for  the  profit  or  pleasure  of  the 
other.'  It  is  under  the  operation  of  this  general  ])rinciple  that  many  new 
servitudes  have  arisen  and  will  continue  to  arise.  No  servitude  (that  I  am 
aware  of)  has  ever  been  introduced  by  statute,  and  they  are  certainly  not 
all  of  the  same  age.  What  has  introduced  them  ?  Just  the  princi])le  that 
he  who  permits  his  land  to  1)C  put  under  rcsti'aint  for  the  rational  use  of 
another  for  forty  years,  exposes  himself  to  have  that  use  fixed  upon  him 
as  a  permanent  servitude."     In  giving  judgment  on  the  appeal  in  l)ycc  the 


272  SEKVITUDES 

Ld.    Chancellor   said:   "There  is  no  rule  in  the  law  of  Scotland  which 
prevents  modern  inventions  and  new  operations  from  being  governed  by 
old  and  settled  legal  principles.     The  category  of  servitudes  and  easements 
must  alter  and  expand  with  the  changes  that  take  place  in  the  circum- 
stances  of  mankind.     The  law  of   this   country,  as  well   as   the   law   of 
Scotland,  frequently  moulds   its   practical    operation  without   doing   any 
violence  to  its  original  principles."     But  the  statement  of  Stair  requires 
some  qualification,  for  all  Ihnitations  on  the  absolute  use  of  property  are 
not  admitted  as  servitudes.     The  essential  quality  of  a  burden  capable  of 
becoming   a   servitude  has  been   explained.     Bell   says:  "What  shall  be 
deemed  servitudes  of  a  regular  and  definite  kind  is  a  secondary  question,  as 
to  which  the  only  description  that  can  be  given  generally  seems  to  be  that 
it  shall  be  such  a  use  or  restraint  as  by  law  or  custom  is  known  to  be  likely 
and  incident  to  the  property  in  question,  and  to  which  the  attention  of_  a 
prudent  purchaser  will  in  the  circumstances  naturally  be  called  "  (Bell,  Frin. 
979).     In  Fairicic,  1867,  5  M.  683,  Ld.  Deas  (p.  706)  says :    " '  Neither,'  as 
Mr.  Erskine  observes  (ii.  9.  33),  '  does  the  law  give  servitudes  countenance 
unless  they  have  some  tendency  to  promote  the  advantage  of  the  dominant 
tenement ' ;  that  is,  as  I  understand  it,  the  peculiar  advantage  of  the  domi- 
nant tenement  in  contradistinction  to  that  general  and  slighter  advantage 
which  would  equally  accrue  to  any  other  tenement  on  which  the  privilege 
might  be  conferred.     A  right  or  privilege  which  does  not  fall  naturally  tobe 
attached  to  the  particular  tenement  to  which  it  is  granted,  and  with  which 
it  is  unusual  to  burden  the  servient  tenement,  and  which  is  of  a  nature  vexa- 
tious to  the  servient  proprietor  as  interfering  with  the  common  law  rights 
and  enjoyment  of  property,  and  forming  an  obstacle  to  free  commerce  in 
land,  cannot  be  made  effectual  against  singular  successors  however  explicitly 
it  may  have  been  granted  in  the  titles  of  the  dominant  tenement."     Ld.  Ard- 
niillan  said  (p.  709) :  "  In  every  case  of  a  predial  servitude  there  must  be  a 
prccdium  servicns  prccdio,  a  dominant  and  servient  tenement,  and  the  burden 
to  which  the  servient  tenement  is  subjected  must  be  of  a  proper  predial 
character  for  the  benefit  of  the  dominant  tenement.     I  do  not  deny  the 
possibility  of  the  introduction  of  a  new  pnedial  servitude.     The  habits  and 
requirements  of  life,  varying  and  extending  with  advancing  civiHsation,  im- 
l^roved  agriculture,  and  multiplying  necessities,  may  render  the  introduction 
of  a  new  servitude  possil)le  and  legitimate.     But  it  must,  in  my  opinion,  he 
of  a  truly  pr;edial  character,  similar  in  nature  and  quality  to  the  predial 
servitudes  which  the  law  has  already  recognised."     (See  also  Ld.  Young  in 
Johnston,  1893,  20  E.  539,  and  Ld.  Watson  in  The  Fark  Yard  Co.,  1897, 
24  E.  1148 ;  rev.  1898,  25  E.  (H.  L.)  47).     On  these  principles  a  servitude 
of  bleaching  has   been  recognised  in  the  law  of  Scotland  {Jaffray,  1755, 
Mor.  2340,  14517 ;   rev.  1757,  1  Pat.  632,  probably  not   on   the  ground 
stated  in  Mor.  14517,  that  no  such  servitude  was  acknowledged  by  the  law 
of  Scotland  (see  L.  P.  Boyle  in  Home,  infra);  Sinclair,  1779,  Mor.  14519; 
affd.  1780,  2  Pat.  554;  Rome,  1846,  9  D.  286)  after  having  been  at  first 
denied  {Falkland,  1708,  Mor.  10916).      Similarly,  a  servitude  of  steeping 
flax  in  a  mutual  stream  was  recognised  {Durham,  1793,  Hume,  735).     But 
servitudes  spatiandi  {Cochran,  1759,  Mor.  14518;  Machintosh,  1871,  9  M. 
574;  10  M.  29,  (1872)  517;  Jenkins,  1866,4  M.  1046;  Dijce,  1849,  11  D. 
1266 ;  affd.  1852,  1  Macq.  305),  of  trout  fishing  {Fatrlck,  1867,  5  M.  683  ; 
and  see  Fergusson,  1844,  6  D.  1363;  Montgomery,  1861,  23  D.  635),  of  a 
privilege  of  one  tide's  salmon  fishing  in  a  season  {Murray,  1880,  7  E.  804), 
of  hunting  or  shooting  {E.  Ahoyne,  22  June  1813,  F.  C.  ;  afi'd.  1819,  6  Pat. 
444;   E.  Ahoijne,  16  Nov.   1814,  F.  C. ;  affd.   1818,  6  Pat.  380;  Follock, 


SEEYITUDES  273 

Gilmonr,  &  Co.,  5  July  1828,  R  C. ;  Marquis  of  Eunthj,  1858,  20  D.  374; 
Marquis  of  Huntly,  1896,  23  E.  610),  of  curling,  skating,  and  ^Mm^  {Harvey, 
1853,  15  D.  768),  of  exclusive  use  of  a  common  subject  {Lcck,  1859,  21  D. 
408),  and  of  contributing  to  the  upkeep  of  a  roof  {Nicliolson,  1708,  Mor. 
14516;  Z2</tC,  1695,  1  Fount.  665),  have  been  denied,  though  such  a 
right  as  a  jus  spatiandi  may  be  established  by  express "  grant  or 
reservation  (see  Magistrates  of  Dundee,  1843,  6  D.  12,  and  Ld.  Chan- 
cellor in  Dyce,  1  Macq.  at  p.  312).  On  the  same  principles,  golfing 
cannot  be  considered  a  servitude  (but  see  St.  Andreus  Ladies'  Golf  Club, 
1887,  14  E.  686),  although  burgh  property  may  be  subject  to  a  customary 
right  of  golfing  in  favour  of  the  inhabitants  {Kelly,  1812,  note  in  9  D.  293  ; 
Cunningham,  1847,  9  D.  1469  ;  Sander  son,  1 8^9,  21  D.  1011,  22  D.  24 ;  Magis- 
trates of  Eeirlsferry,  1829,  7  S.  755  ;  1832,  11  S.  74);  and  the  inhabitants  of  a 
burgh  may  have  title  to  enforce  their  right  to  golf  on  ground  feued  by  the 
magistrates  under  reservation  of  such  nght  (Cleghorn,  1805,  Mor.  16141 ; 
rem.  1813,  2  Dow,  40).  Taking  growing  sea  tangle  for  the  manufacture  of 
kelp  is  not  considered  a  servitude,  as  it  is  not  taken  for  the  benefit  of  a 
dominant  tenement.  It  is  rather  looked  upon  as  evidence  of  ownership  of 
the  foreshore  (K  Morton,  1760,  Mor.  13528;  Zd.  licay,  17 SI,  Mov.  5151; 
MTaggart,  1867,  5  M.  534;  Agneiv,  1873,  11  M.  309).  But  taking  drift 
sea-ware  for  manure  is  a  recognised  servitude  {Fulkrton,  1697,  Mor.  13524; 
/;.  Morton,  supra;  Ld.  Beay,  snp)ra\  Becirel,  1859,  21  D.  848;  rev.  1861, 
4  Macq.  127;  23  D.  (H.  L.)  5;  see  MTagcjart,  supra).  It  is  only  in 
reference  to  positive  servitudes  that  snch  questions  have  arisen.  In  the 
case  of  negative  servitudes  effect  will  not  readily  be  given  to  .servitudes 
not  already  known  and  recognised.  Negative  servitudes  being  mere 
prohibitions,  are  not  made  manifest  in  the  exercise  of  the  right  conferred 
on  the  dominant  owner,  and  therefore  it  is  impossible  for  a  purchaser 
of  the  servient  tenement  to  be  on  his  guard  against  tliem.  But  positive 
servitudes  are  more  easily  detected  by  a  jjurchaser,  as  they  require  either 
sasine  or  possession  (Bell,  Prin.  990  ;  Eankine,  367). 

Constitution  of  Servitudes. — (1)  Positive  Scrvitueles.—{a)  Grant. — A 
positive  servitude  may  be  created  either  by  grant  or  by  prescription.  If 
constituted  by  grant,  it  may  be  contained  in  any  holograph  or  tested  writing, 
whether  sucli  writing  be  part  of  the  title  of  the  dominant  or  of  the  servient 
tenement  (Bell,  IMn.  992,  and  authorities  there  cited).  It  is  usually 
contained  in  the  titles  of  the  servient  tenement  (see,  e.g.,  Cleghorn,  1805, 
Mor.  16141  ;  rem.  1813,  2  Dow,  40  ;  Dinwidclie,  1821,  1  8.  164  ;  Davidson, 
1822,  1  S.  411  ;  and  see  L<1.  Young  in  Johnston,  1893,  20  E.  539,  at  p.  547). 
It  is  essential  that  the  intention  to  create  a  permanent  servitude  be  clear 
(Park  Yard  Co.  Ltd.,  1897,  24  E.  1148  ;  rev.  1898,  25  E.  (H.  L.)  47;  and 
see  for  similar  rule  in  case  of  negative  servitudes.  Bell,  Prm.  994,  and 
authorities  tliorc  cited).  Such  intention  may  be  discovered  from  the 
terms  of  the  document  taken  as  a  whole,  or  from  tlic  circumstances  of 
the  case;  and  it  is  not  conclusive  against  the  constitution  of  a  servitude 
that  the  deed  constituting  the  burden  is  in  terms  appro])riate  for  creating 
a  mere  personal  obligation  (].(].  Watson  in  the  Park  Yard  Co.,  supra). 
The  servitutlc  may  be  constituteil  by  a  separate  writing,  such  as  a  contract 
agreement  or  missive,  or  perliaps  articles  of  roup  (Hell,  Prin.  992,  and 
cases  there  cited);  even,  it  is  thought,  though  tliese  should  be  followed  by 
charter  or  disposition  making  no  mention  of  the  servitude  {TurnluU,  1622, 
Mor.  14499;.  Tiiis  would  apj»ear  to  be  inconsistent  with  tlie  established 
rule  that  a  disposition,  on  being  delivered  and  accepted,  "l)ecomes  the 
sole  measure  of  tlie  contracting  parties'  rights,  and  supersedes  all  previous 

8,  E.— VOL.   XI.  18 


274  SERVITUDES 

communings  and  contracts  however  formal"  {Orr,  1892,  19  E.  700,  rev. 
1893,  20  R  (H.  L.)  27 ;  Lee,  1882,  10  K  230 ;  affd.  1883,  10  E.  (H.  L.)  91 ; 
Croall,  1870,  9  M.  323).  The  distinction  may,  however,  be  drawn  that  the 
principle  involved  in  these  cases  is  that  the  stipulations  in  the  superseded 
writing  must  be  held  to  have  been  abandoned;  while  in  the  case  of  a 
servitude  not  mentioned  in  the  charter  or  disposition,  and  therefore  not 
appearing  on  record,  the  possession  necessary  to  validate  the  right  would 
redargue  abandonment  (Eankine,  375  ;  and  comp.  Camplcll,  1867,  5  M. 
636).  The  grant  may  be  from  one  whose  title  has  not  been  completed ;  and 
if  so,  subsequent  completion  of  the  title  will  validate  the  grant  accretione 
{Sivr'ujht,  1828,  7  S.  210).  The  grant  may  be  by  an  heir  of  entail  having 
power  to  sell  under  the  Entail  Statutes  (Bowman  Bcdlantine,  1883,  10  E. 
1061).  It  cannot  be  obtained  compulsorily  in  terms  of  the  Lands  Clauses 
Act,  1845  (8  Vict.  c.  19)  (Pincldn,  1854,  5  i3e  G.,  M.  &  G.  851 ;  Metrojjolitan 
District  Railway,  1880,  L.  E.  13  Ch.  D.  607,  per  Jessel,  M.  E.,  at  p.  610); 
but  may  be  taken  in  virtue  of  special  powers  in  an  Act  of  Parliament  (see, 
e.g.,  Lord  Blantyrc,  1886,  13  E.  636  ;  rev.  1888, 15  E.  (H.  L.)  56),  or  may  be 
acquired  by  such  an  undertaking  as  a  railway  company  by  agreement 
(Caledonian  Llaihcay  Co.,  1876,  4  E.  140).  A  right  to  a  servitude  may  fall 
under  a  clause  of  parts  and  pertinents  as  explained  by  previous  possession 
(BorthvAck,  1068,  M.  9632;  Ersk.  ii.  9.  16;  and  see  Preston's  Trs.,  1860, 
22  D.  366).     For  a  form  of  a  grant  of  servitude,  see  Jurid.  Styles,  i.  47. 

If  rci  inter ventus  follow  on  an  agreement  to  grant  a  servitude 
not  in  itself  binding,  this  may  bar  the  servient  owner  from  challeng- 
ing the  right  of  the  dominant  owner  (Bell,  Frin.  946 ;  Aytoun, 
1800,  Mor.  App.  "Property,"  No.  5;  Aytoun,  1801,  Mor.  App.  "Pro- 
perty," No.  6) ;  but,  except  in  this  case,  a  servitude  constituted  by  grant 
not  in  the  form  of  a  probative  writing  is  not  binding  (Ivincaid,  1750, 
Mor.  8403 ;  Elch.  v.  "  Servitude,"  No.  4). 

There  has  sometimes  been  difficulty  in  distinguishing  between  grants  of 
servitude  and  commonty.  A  servitude  of  pasturage  only  is  constituted  by 
possession  following  on  a  grant  of  land  "  cum  communi  ^mstura  in  commune 
de  B.,"  or  "cum  iirivilegio  communitatis"  or  "with  pasturage  of  cattle  and 
privilege  of  commonty,"  or  "with  parts,  pertinents,  and  pendicles,  with 
common  pasturage,"  or  "  with  the  liberty  and  privileges  of  the  commonty 
of  B."  (Bell,  Prin.  1089;  Eankine,  525).  If  the  grant  is  in  such  terms 
as  these,  no  higher  right  than  a  servitude  can  be  acquired  by  possession ; 
but  possession  on  a  simple  grant  with  or  without  a  clause  of  parts  and 
pertinents  may  bestow  a  riglit  of  commonty  or  of  servitude  according  to  its 
extent  (Eankine,  525,  and  authorities  there  cited). 

To  be  valid  against  singular  successors,  the  servitude  must  further  either 
appear  on  record  or  be  followed  by  such  possession  or  use  as  it  admits  of, 
called  quasi  possession  (see  Ersk.  ii.  9.  3;  Garden,  1734,  Mor.  14517; 
P'itarro,  1673,  Mor.  14503  ;  Blair,  1686,  Mor.  14505  ;  Turnlull,  1622,  Mor. 
14499  ;  Eddie,  1869,  6  S.  E.  L.  363  ;  The  Park  Yard  Co.,  1897,  24  E.  1148  ; 
rev.  (H.  L.)  1898,  25  E.  (H.  L.)  47).  Where,  however,  two  persons  had 
personal  titles  to  adjoining  tenements  ilowing  from  the  same  author, 
and  the  prior  right  constituted  a  servitude  over  the  property  disponed 
by  the  posterior  right,  the  servitude  was  held  to  be  effectual  without 
possession  (Greig,  1829,  7  S.  274),  As  regards  the  nature  of  the  posses- 
sion necessary,  the  same  rules  will  probably  apply  as  those  regarding 
the  nature  of  the  possession  required  for  constituting  servitudes  by 
prescription  (see  infra).  The  object  of  the  rule  as  to  registration  or 
possession  is  that  a  purchaser  may  be  protected  against  latent  burdens. 


SERVITUDES  275 

He  is  safe  against  all  positive  servitudes  which  do  not  appear  on  record  or 
which  cannot  be  found  out  either  by  inspection  or  by  inquiry  in  the 
neighbourhood.  But  while,  theoretically,  a  purchaser  may  discover  all 
servitudes  against  the  property  which  appear  on  record,  practically  some 
might  escape  his  notice.  If  they  are  contained  in  the  titles  of  the  servient 
tenement,  then  of  course  an  inspection  of  the  titles  discloses  them.  But 
if  they  are  contained  in  the  titles  of  the  dominant  tenement,  then,  while 
theoretically  they  are  published  in  the  records,  they  may  escape  the  notice 
of  a  purchaser  of  the  servient  tenement,  for  they  will  not  be  referred  to  in 
a  search  against  the  servient  tenement  and  its  proprietors,  and  therefore  the 
only  way  to  discover  them  will  be  to  refer  to  the  record  ad  longum  of  all 
deeds  granted  by  former  proprietors  of  the  servient  tenement.  If  they  are 
constituted  by  separate  recorded  deeds,  they  will  be  disclosed  by  a  search 
against  the  former  proprietors  of  the  servient  tenement.  It  may,  however, 
be  necessary  to  examine  the  record  for  a  period  extending  more  than  forty 
years  back  in  order  to  discover  a  servitude,  for  a  servitude  created  more 
than  forty  years  ago  may  still  be  binding  if  not  extinguished  by  the  negative 
prescription. 

{h)  Implied  Grant  or  Reservation. — A  servitude  cannot  be  constituted 
rclus  ipsis  etfactis  {Cochrane,  1860,  22  D.  358  ;  affd.  18G1,  4  Macq.  117, 
overruling  Preston's  Trs.,  1860,  22  D.  366).  It  may,  however,  be  constituted 
by  implied  grant  or  reservation.  If  the  ownership  of  minerals  is  separated 
from  the  ownership  of  the  surface,  the  proprietor  of  the  minerals  has  an 
implied  right  to  such  uses  of  tlie  surface  as  are  reasonably  necessary  for  his 
use  of  the  minerals  (see  liankine,  161,  and  authorities  there  cited).  If  a 
proprietor  of  an  estate  conveys  part  of  it  to  a  disponee,  the  part  conveyed 
being  either  built  upon  or  disponed  for  the  purpose  of  l)eing  built  upon, 
there  is  an  implied  grant  of  a  servitude  of  su^jport  aflecting  the  parts 
retained,  whether  they  consist  of  mineral  strata  lying  under  the  part  con- 
veyed or  of  lands  contiguous  to  it  (see,  e.g.,  Caledonian  Bailway  Co.,  1854, 
16  D.  550 ;  rev.  1856,  2  Macq.  449,  and  other  cases  referred  to  by  L'ankine, 
431  ct  scq.).  If  a  proprietor  of  two  neighbouring  tenements  conveys 
away  one  of  them  and  retains  the  other,  the  grantee  is  entitled  to  such 
accessory  rights  of  servitude  over  the  tenement  retained  as  are  essential  for 
the  use  of  his  property.  Tbe  most  common  cxanijile  of  imi)lied  grant  is 
the  way  of  necessity.  If  there  is  no  other  way  of  access  to  tbe  tenement 
conveyed,  the  purchaser  is  entitled  to  access  across  the  tenement  retained. 
In  Walton  Brothers,  1876,  3  R.  1130,  Ld.  Pres.  Inglis  said  :  "No  one  can 
possess  a  piece  of  ground  without  having  a  right  of  ish  and  entry  ;  and 
the  way  tliat  is  to  be  obtained,  if  tlic  conveyance  is  silent,  is  just  the 
existing  way."  Tlie  necessity  must  be  referable  to  the  use  to  wiiicli  tlie 
subjects  were  put  at  the  date  of  the  conveyance,  or  to  the  use  to  whicli  it 
was  at  that  tin)c  understood  bv  tlie  parties  they  were  to  be  put  (London 
Corporation,  1880,  L.  li.  13  Ch.  \).  798  ;  Cayford,  1808,  L.  II  4  Ch.  133,  per 
Ld.  Cairns,  at  p.  136  ;  jWLarcn,  1878,  5  li.  1042).  If  more  tlian  one  way 
exists,  the  dominant  owner  is  only  entitled  to  one,  and  that  one  may  be 
cho.sen  by  the  servient  owner  (Bolton,  1879,  L.  R.  11  Ch.  D.  968;  Backer, 
1658,  2  Sid.  111).  If  none  exists,  ])robal)ly  tlie  Court  would  a]>])oint  a  man 
of  skill  to  define  its  course  (Rankine,  378).  Tlie  existence  or  non-existence 
of  the  access  claimed  at  the  date  of  the  grant  may  1)0  of  great  importance 
in  deciding  whether  or  not  there  is  an  ini])lied  grant  of  the  right  of  access. 
In  CHllcn.%  IHOG,  23  R.  209,  Ld.  Low  (Ordinary)  said:  "The  Union 
Heritable  Securities  Co.,  1886,  13  R.  670,  so  far  as  I  know,  is  the  only  case 
in  which  an  access  not  actually  in  existence  at  the  date  of  the  conveyance 


27G  SEEVITUDES 

was  held  to  be  included  by  implication  in  the  grant.  The  circumstances, 
however,  were  very  peculiar ;  and  although  the  result  undoubtedly  met  the 
equity  of  the  case,  it  is  difficult,  as  Ld.  Paitherfurd  Clark  remarked,  to 
find  a  ground  of  judgment."  In  Cullcns  an  unsuccessful  attempt  was  made 
to  found  on  the  use,  subsequent  to  a  grant,  of  an  access  not  in  existence  at 
the  date  of  the  grant  as  explaining  the  grant  to  include  that  right  of  access. 
The  implied  grant  of  access  was  claimed  for  the  use  of  a  bakehouse  on  the 
further  ground  that  the  land  w^as  sold  to  be  used  as  a  bakehouse,  and  that  a 
suitable  access  was  implied.  The  Court  held  that  the  road  was  not  neces- 
sary for  the  purpose  the  purchasers  had  in  view  in  buying  the  land, 
and  that,  in  any  case,  the  erection  of  a  bakehouse  was  not  an  essential  part 
of  the  bargain  so  as  to  bind  the  grantor  to  supply  an  access  suitable  for  a 
bakehouse. 

But,  further,  the  grantee  is  entitled  to  those  uses  of  the  tenement 
retained  which,  though  not  so  essentially  necessary  that  his  property  could 
have  no  value  without  them,  are  reasonably  necessary  to  his  convenient 
and  comfortable  enjoyment  of  the  tenement  granted  to  him,  "and  have  been' 
and  are  at  the  time  of  the  grant  used  by  the  owner  of  the  whole  for  the 
benefit  of  the  part  granted  "  ( Whccldon,  1879,  L.  E.  12  Ch.  Div.  31 ;  Union 
Heritable  Securities  Co.  and  Cullens,  siqyra).  It  is  a  question  of  circum- 
stances what  uses  of  one  tenement  are  necessary  for  the  convenient  and 
comfortable  enjoyment  of  another.  In  one  case  a  servitude  of  taking  water 
was  held  to  be  so  necessary  {Preston's  Trs.,  1860,  22  D.  366,  as  explained  in 
Coehrane,  infra) ;  in  another,  a  servitude  of  maintaining  a  drain  and  cesspool 
for  the  drainage  of  a  lanyard  (Coc/iranc,  1860,  22  D.  358  ;  affd.  1861,  4  Macq. 
117);  in  a  third,  a  servitude  of  access  by  a  lane  which  was  not  the  only 
means  of  access  to  tlie  dominant  tenement  {Walton  Bros.,  1876,  3  R.  1130; 
but  cf.  M'Lccren,  1878,  5  li.  1042).  On  the  other  hand,  no  such  necessity 
was  recognised  in  the  case  of  a  signboard  belonging  to  one  flat  of  a  building 
and  encroaching  on  the  wall  of  the  ilat  above  {Alexander,  1875,  3  B. 
156).  In  M'Laren,  sujjra,  it  was  lield  that  a  railway  company  purchasing 
land  xmder  compulsory  powers  were  not  entitled  to  claim  as  a  servitude 
riglit  the  existing  right  of  access  through  the  seller's  remaining  property, 
as  they  had  sufficient  access  by  other  property  l)elonging  to  them  and 
adjoining  the  subjects  purchased.  The  ground  of  the  decision  was  that 
whether  a  grant  of  servitude  of  this  nature  is  to  be  implied  or  not  is  always 
a  question  of  circumstances,  depending  on  the  presumed  intention  of  the 
parties  to  the  sale,  and  that  in  this  case  the  circumstances  did  not  indicate 
any  intention  that  the  railway  company  should  have  access  otherwise 
than  through  their  own  property  (see  also  Cullens,  1895,  23  R.  209 ;  and 
Cecmphcll,  1890,  27  S.  L.  R.  1000).  In  Goiv's  Trs.,  1875,  2  R.  729,  a. 
servitude  right  of  access  through  property  retained  by  a  seller,  by  a 
passage  which  had  been  used  by  him  for  the  benefit  of  both  the  part 
sold  and  that  retained,  was  refused  to  a  purchaser  on  the  ground  that 
he  had  a  sufficient  means  of  access  through  the  property  purchased  by 
him,  and  that,  looking  to  the  nature  of  the  two  properties,  the  claim  for 
another  access  was  neither  necessary  nor  reasonable.  In  Cullens,  where 
an  implied  right  of  access  was  claimed  by  a  grantee  who  had  another 
practical  access,  Ld.  Trayner  said  :  "  The  access  claimed  was  not  and  is  not 
necessary  to  the  defenders  in  the  reasonable  use  and  enjoyment  of  their 
subjects.  That  it  might  be  very  convenient  may  be  admitted,  but  that  it  is 
not  necessary  is,  I  think,  clearly  established."  If  the  two  tenements  were 
at  one  time  in  the  liands  of  separate  owners,  it  may  l^e  of  importance  to 
ascertain  wdiether  the  right  claimed  w^as  then  exercised  or  not,  as  this  is  of 


SERVITUDES  277 

great  value  in  deciding  whether  or  not  the  right  is  necessary  to  the  extent 
required  for  estabUshing  an  implied  grant  {Goiu's  Trs.  and  Walton  Bros., 
supra).  Only  those  servitudes  can  be  constituted  by  implied  grant  wliicli 
are  apparent,  "  including  those  which  may  be  seen  or  known  on  a  careful 
inspection  by  a  person  ordinarily  conversant  with  the  subject "  (Rankine, 
381,  and  authorities  there  cited).  Professor  Rankine  says  that  continuity 
can  scarcely  be  said  to  have  been  strictly  demanded  either  in  Scotland  or  in 
England,  but  the  presumption  in  favour  of  implied  grant  will  be  stronger 
in  the  case  of  continuous  servitudes  (see  Ld.  J.-Cl.  Moncreiff  in  M'Larcn, 
supra). 

Similar  questions  may  arise  in  the  case  where  the  owner  of  two  adjoin- 
ing tenements,  who  has  been  in  the  custom  of  exercising  rights  of  the  nature 
of  servitudes  over  one  of  them  for  the  benefit  of  the  other,  alienates  the 
servient  tenement.  In  this  case  the  seller  or  his  successor  in  the  tenement 
retained  will  not  be  allowed  to  claim  any  implied  right  of  servitude  over 
the  alienated  tenement  other  than  servitudes  of  absolute  necessity,  on  the 
principle  that  no  one  may  derogate  from  his  own  grant.  If  the  proprietor 
of  the  two  tenements  dispones  them  to  two  different  persons,  either  simul- 
taneously or  by  carrying  into  effect  one  arrangement,  tlie  rules  are  the  same 
as  wdiere  he  retains  the  servient  tenement  (Whcddon,  1879,  L.  R.  12  Ch.  1). 
HI,  overruling  Fi/er,  1857,  1  II.  &  X.  916;  and  see  Rankine,  382  d  scq.,  and 
cases  there  referred  to).  If  the  servient  tenement  has  been  disponed  in 
security  merely,  though  by  an  ex  facie  absolute  disposition,  this  will  not 
prevent  the  implied  constitution  of  a  servitude  by  the  subsequent  aliena- 
tion of  the  dominant  tenement  (Union  Hcritalle  Securities  Co.,  1886,  13  R. 
<370).  .  . 

(c)  Prescription. — A  positive  servitude  may  further  be  said  to  be  acquired 
by  prescription,  though  it  may  be  more  correct  to  view  the  prescription  as 
proving  the  right  ra'tlier  than  constituting  it  (see  Ld.  Young  in  Macnah, 
1890,  17  R.  397,  and  Gricrson,  1882,  9  R.  437).  Xo  further^title  is  re- 
quired than  infeftment  in  the  dominant  tenement  (Stair,  ii.  7.  2;  Ersk. 
ii.  9.  a ;  Bell,  rria.  993).  It  is  not  easy  to  see  why  even  this  should  be 
necessary,  as  the  servitude  is  acquired  for  the  dominant  tenement  itself,  it 
being  immaterial  who  is  the  owner.  In  the  case  of  servitudes  acquired  for 
inhabitants  of  burghs  or  villages  merely  as  such,  so  far  as  that  is  possible, 
infeftment  in  the  dominant  tenement  cannot  of  course  be  demanded.  The 
dominant  owner  need  not  have  in  his  title  a  clause  of  parts  and  ])crtinents 
{Beaumont,  1843,  5  D.  1337  ;  but  see  Stair,  ii.  7.  2,  and  cf.  Saunders,  1830, 
8  S.  GOj),  although  it  has  been  said  that  in  order  to  prescribe  a  riglit  of 
pasturage  he  must  have  in  his  title  words  sullicient  to  sustain  it  (l-icll,  Prui. 
1013) ;  and  oven  thougli  he  possess  on  a  l)0un(Ung  charter,  lie  may  prescribe 
a  right  to  a  servitude  over  lands  without  his  boundaries  {Beaumont,  sujjra; 
Liston,  1835,  14  S.  97,  per  Ld.  Fullerton).  He  does  not  reipiire  to  possess 
in  bond  fide  (Stair,  ii.  12.  6,  11,  and  19 ;  Ersk.  iii.  7.  15  ;  Rankine,  50 ;  see 
Bell,  Brin.  2004,  2008).  His  possession  must  be  as  in  right,  and  not  by 
mere  tolerance  (I'urdle,  1749,  Mor.  14511 ;  Macn(d>,  1890,  17  R.  :>97 ;  Jl  of 
Atkole,  1890,  17  R.  457;  see  Grant,  1677,  Mor.  10876);  and  it  must  be 
manifest  to  the  servient  owner  that  the  posscssicm  is  in  exercise  of  a  right 
claimed  (D.  of  Athole,  supra).  Tbc  .lonnnant  jiroprietor  may  possess  either 
personally  or  civilly  through  another  person,  who  need  not  derive  a  title 
of  po.sscssion  from  the  dominant  owner  (Drumvwnd,  1890,  17  R.  316). 
In  this  respect  a  distinction  may  be  drawn  between  the  prescrijition  of 
a  rjf'ht  of  property  and  prescription  of  a  servitude;  for  in  the  f(trmer  case 
the  possessor  must  possess  on  a  title  derived  from  the  person  prescribing 


278  SERVITUDES 

the  right,  as,  for  example,  his  lessee  his  feuar  or  his  creditor,  or  as  liferenter, 
the  person  prescribing  the  right  being  fiar  (see  llankine,  p.  35,  and  authorities 
there  cited).  Possession  may  have  originally  begun  upon  a  title  which 
would  not  found  prescription,  as,  e.g.,  a  tack,  yet  prescription  will  take  place 
if  the  requisite  period  liave  elapsed  subsequent  to  some  indication  having 
been  given  of  the  change  in  the  title  of  possession  {Grant,  1677,  Mor.  10876  ; 
and  see  Borne,  1884,  11  E.  653).  If  prescription  is  to  constitute  a  servitude, 
the  possession  must  not  be  ascribable  to  a  lower  right  than  the  servitude,  as, 
e.g.,  a  right  under  an  Act  of  Parliament  {Cameron,  1848,  10  D.  446  ;  Hoylr, 
1858, 21  D.  90  ;  Dc  la  Warr,  1881, 17  Ch.  D.  535),  or  a  right  to  cross  another's 
land  to  bring  back  strayed  sheep  {D.  of  Athole,  1890,  17  P.  456 ;  affd.  1891, 
18  P.  (H.  L.)  46).  It  must  be  commensurate  with  the  right  claimed  (Ersk. 
ii.  9.  4 ;  Bell,  Prm.  993);  but  changes  in  circumstances  may  justify  a  claim  to 
extend  the  right  beyond  the  former  extent  of  possession.  Thus  a  proprietor 
in  right  of  a  dam  was  allowed  to  extend  it  farther  into  the  property  of  the 
servient  owner  in  order  to  restore  its  efficiency,  which  had  been  destroyed  by 
the  washing  away  of  the  banks  of  the  stream  {L.  Gairlton,  1677,  Mor, 
14535).  A  proprietor  of  a  colliery  had  a  right  to  a  dam  for  draining  his 
coal,  and  was  found  entitled  to  raise  it  from  time  to  time  as  became  necessary 
for  the  drainage  of  the  colliery  {Bruce,  1741,  Elch.  v.  "  Servitude,"  No.  2  ;  cf. 
Forles,  20  Feb.  1829,  F.  C,  7  S.  441 ;  MacJccnzie,  1868,  6  M.  936).  These 
apparent  exceptions  to  the  rule  that  the  dominant  owner  cannot  increase 
the  burden  on  the  servient  tenement  were  based  on  the  principle  that  the 
change  was  necessary  to  make  the  servitude  available  to  the  dominant 
owner  for  the  purpose  for  which  it  was  originally  granted  or  prescribed. 
The  burden  cannot  be  increased  merely  for  the  profit  of  the  dominant  tene- 
ment (Bell,  Brin.  988;  but  see  Ersk.  ii.  9.  4). 

The  period  of  prescription  necessary  to  establish  a  servitude  is  and  has 
been,  at  least  since  the  Act  1617,  c.  12,  forty  years.  The  Conveyancing 
Act,  1874,  s.  34,  while  shortening  the  period  of  positive  prescription  appli- 
cable to  titles  to  land,  expressly  declared  that  the  section  should  have  no  appli- 
cation to  servitudes  or  to  public  rights  of  way  or  other  public  rights.  But 
where  possession  for  forty  years  prior  to  any  interruption  cannot  be  proved, 
but  as  far  back  as  the  evidence  goes  there  is  proof  of  possession  and  no  sign 
of  any  change  having  taken  place,  such  proof  of  immemorial  possession  may 
be  sufficient  to  establish  the  servitude  by  prescription  (Pankine,  p.  50,  and 
authorities  there  cited).  The  period  begins  to  run  from  tlie  first  act  of  use 
of  the  nature  of  a  servitude  which  the  servient  owner  could  have  prevented, 
and  ends  with  any  effectual  interruption.  Interruption  may  be  judicial,  i.e. 
by  citation  or  by  action  called  in  Court,  or  extrajudicial.  Extrajudicial  cita- 
tion may  be  either  civil,  i.e.  by  notarial  instrument,  or  natural,  i.e.  by  exclusion 
of  the  dominant  owner  from  the  use  of  the  subjects  (see  Prescription,  and 
Pankine,  53),  or  it  may  be  by  confusion  where  both  the  dominant  and  the 
servient  tenements  have  come  under  the  ownership  of  the  same  person 
{Gow's  Trs.,  1875,  2  P.  729;  and  see  Extinction  of  Servitudes,  Confusionc, 
infra ;  Pankine,  388).  What  exclusion  is  necessary  to  constitute  inter- 
ruption is  a  question  of  circumstances.  Professor  Pankine  states  the 
principle  generally  thus :  "  Interruption  may  consist  of  such  acts  or 
omissions  of  the  possessor  as  show  that  he  had  not  been  possessing  under 
the  right  he  now  claims,  or  by  such  acts  of  his  opponent  as  prove  the 
maintenance  of  advei'se  right"  (Pankine,  55).  Thus  turning  off  cattle 
and  preventing  the  casting  of  peats  once  a  year  has  been  held  sufficient  to 
prevent  the  acquisition  of  servitude  rights  of  pasturage  and  casting  peats 
{Nicholson,  1662,  Mor.  11291),  and  "  tilling  and  labouring  sundry  parts  of  a 


SERVITUDES  279 

muir,"  and  "  debarring  "  the  cattle  of  the  person  claiming  the  servitude  and 
"  poinding  the  same  in  diverse  years,"  was  similarly  held  to  interrupt  the 
prescription  of  a  servitude  of  -pasturage  (S/ierif  of  Cavers,  1629,  Mor.  10874). 
In  a  thirlage  case  it  was  held  that  to  interrupt  the  prescription  of  this  right 
there  must  be  abstraction  of  a  whole  year's  crop  {Henderson,  1677,  Mor. 
10867).  It  is  not  enough  to  go  to  other  mills  occasionally  (Henderson,  snpra ; 
Keithick  Mill,  1665,  Mor.  11292). 

It  is  not  necessary  that  the  possession  should  he  adverse  to  some  one 
who  is  rahns  agerc  (APNeill,  1858,  20  D.  735;  Eankine,  56;  Bell,  Frm. 
202:>).  Minorities,  however,  are  deducted  from  the  period  of  prescription 
(1617,  c.  12  ;  CcLinpMl,  1836, 1-1  S.  798 ;  Baird,  1859,  21  D.  848  ;  rev.  1861, 
23  D.  (H.  L.)  5,  4  Macq.  127;  applied  1861,  23  D.  1080.  See  Craufurd, 
1849,  11  D.  1127;  Black,  1881,  8  R.  497).  The  minor  must  be  the  true 
owner  of  the  servient  tenement  having  a  vested  right  to  it  dependent  on 
no  contingency  (Stair,  ii.  12.  18 ;  Ersk.  iii.  7.  35 ;  Bell,  Prin.  2022).  There 
will  be  no  deduction  where  the  servient  owner  is  a  children's  hospital 
{Fisher,  1695,  Mor.  11149),  or  several  minor  beneficiaries  in  one  trust 
{Mackllan,  1756,  Mor.  11160),  or  for  the  period  during  which  a  parent 
holds  a  fiduciary  fee  for  his  children  in  whom  a  title  to  the  servient  tene- 
ment has  not  vested  {Black,  1881,  8  E.  497).  In  Baird,  sujira,  Ld.  Deas 
expressed  the  opinion  that  where  possession  was  used  to  construe  a  clause  of 
pertinents,  the  years  of  minoritv  must  not  be  left  completely  out  of  account 
(23  D.  1080,  and  see  Ld.  Chan.  Campbell  in  4  :Macq.  138). 

What  amount  of  possession  is  necessary  to  constitute  a  servitude  by  pre- 
scription is  always  a  question  of  circumstances  (see,  e.g.,  Macnah,  1890, 17  R. 
397).  In  the  case  of  continuous  servitudes  there  is  no  difficulty,  but  it  is 
impossible  to  lay  down  a  definite  rule  in  the  case  of  non-continuous  servi- 
tudes. If  the  servitude  has  been  used  on  all  occasions  when  retpiired,  this 
will  probably  be  enough  even  though  these  were  not  frequent.  The  essential 
seems  to  be  only  that  the  use  should  have  been  sufficient  to  indicate  that  it 
was  exercised  in  assertion  of  a  right  (see  D.  of  Af hole,  1890, 17  R.  456  ;  affil. 
1891,  18  Pt.  (H.  L.)  46).  In  a  case  where  a  servitude  of  access  to  a  well  and 
of  drawing  water  therefrom  was  claimed  to  have  been  established  by  pre- 
scriptive use,  Ld.  J.-Cl.  Kingsburgli  laid  down  that  these  essentials  must  be 
proved:  (1)  that  the  use  made  of  the  access  by  those  claiming  the  right  lias 
been  continuous  and  uninterrupted ;  (2)  that  tliis  use  has  been  made  in  the 
direct  a.ssertion  of  a  right ;  (3)  that  this  use  in  the  assertion  of  a  riglit  has 
been  acquiesced  in  by  those  having  interest  to  object  {Macnah,  1890,  17  R. 

397). 

Changes  in  the  manner  of  use  and  possession  may  not  prevent  tlie 
acquisition  of  the  right  Ity  prescription,  if  such  cliangcs  are  acquiesced  in 
(Bell,  Prin.  993  ;  Hozier,  1884, 11  R.  766).  A  right  of  servitude  constituted 
by  grant  may  be  increased  by  prescriptive  possession  {Forhcs,  1724,  Mor. 
14505).  Long  po.s.scssion  of  a  .servitude  right  may  do  more  than  merely 
establish  the  riglit  to  the  servitude.  It  may  bo  evidence  of  a  right  of 
property  {Mmhieson,  1874,  12  S.  L.  R.  134;  Scoullar,  1832,  10  S.  241). 

A  superior  has  a  title  to  interrupt  the  prescription  of  a  .servitude  against 
liis  vassal,  and  tlierefore  a  servitude  acquired  by  ])rescription  is  valid  against 
the  superior  {M.  Brcadalhnnc,  1851,  i:5  J).  647;  Stair,  ii.  4.  .".6;  ii.  7.  3; 
Er.sk.  ii.  9.  4).  A  servitude  constituted  by  the  grant  of  a  vassal  is  not 
enforceable  against  his  superior  in  the  event,  for  example,  of  the  feu  being 
\vY\Ux\oj\i  Tenants  of  Dalmorton,  1666,  Mor.  5005  ;  Duff,  136  ;  Stair,  ii.  4.  36, 
ii.  7.  3;  Ersk.  ii.  9.  4).  In  the  case  of  a  servitude  constituted  by  prescrip- 
tion, the  rule  is   taatum  -prcscriiilam  quanfum  2^ossessu}n.      The  extent  of 


280  SEEVITUDES 

possession  is,  as  Bell  says,  the  measure  as  well  as  the  badge  of  the  right. 
In  the  case  of  a  servitude  constituted  l)y  grant,  on  the  other  hand,  the 
measure  of  the  right  is  the  terms  of  the  grant,  possession  being  merely 
the  badge  of  the  right  (Ersk.  ii.  9.  4 ;  Bell,  Frin.  993 ;  3Iunro,  1760,  Mor. 
14533). 

(d)  Acquiescence. — A  positive  servitude  may  further  be  constituted  by 
acquiescence  on  the  part  of  the  servient  owner,  in  acts  done  by  the  domi- 
nant owner  at  great  cost  to  himself,  or  in  acts  which  cannot  be  undone 
(Bell,  Frin.  94G,  947,  1103;  Munro,  1821,  1  S.  161 ;  Aj/toun,  1800,  M.  App. 
"  Property,"  No.  5 ;  Hoiddsworth,  1887,  14  R.  920). 

(c)  Decree,  Statute,  etc. — A  positive  servitude  may  be  created  by  a  decree 
of  ranking  and  sale  {Hilson,  1895,  23  E.  241).  It  may  be  created  by  statute 
{Maclienzie,  1870,  7  S.  L.  R.  333),  or  in  virtue  of  powers  given  by  statute 
ICaledonian  Ewy.  Co.,  1854,  16  D.  559,  955 ;  rev.  1856,  2  Macq.  449 ;  Cale- 
(Ionian  Rwy.  Co.,  1857,  3  Macq.  56  ;  M'Culloch,  1863, 1  M.  334).  It  may  be 
established  against  a  superior  and  co-feuars  by  a  feuing  plan,  if  the  plan 
is  validly  imported  into  the  contract  between  the  superior  and  the  feuar 
{Henderson,  1846,  2  D.  869;  Crawford,  1874,  2  R.  20;  Newport  Rwy.  Co., 
1879,  7  R.  179  ;  affd.  1883,  10  R.  (H.  L.)  30;  Union  Hcritalle  Securities  Co., 
1886, 13  R.  670  ;  Cullens,  1895,  23  R.  209).  A  servitude  may  be  constituted 
in  favour  of  an  estate  in  return  for  an  annual  money  payment  created  a 
real  burden  over  that  estate  (Steiuart,  1877,  4  R.  981). 

(2)  Nejative  Servitudes. — Negative  servitudes  are  constituted  by  grant 
only  (Ersk.  ii.  9.  35;  BeW,  Prin.  994).  The  grant  may  be  in  any  of  the 
forms  competent  for  constituting  a  positive  servitude,  and  must  be 
authenticated  in  like  manner  (see  Gray,  1792,  Mor.  14513,  7  S.  212; 
Argyllsliire  Commissioners,  1885,  12  R.  1255;  Banks,  1874,  1  R.  981; 
4Jou-an,  1872,  10  M.  735;  3Iearns,  1800,  Hume,  736;  3PGown,  1808, 
Hume,  740;  but  see  Midrie,  26  June  1810,  F.  C. ;  Johnstone,  1829,  7  S. 
'732 ;  Dickson  on  Evidence,  550,  Note  (a)).  A  form  of  grant  of  a  negative 
servitude  will  be  found  in  Juridical  Styles,  i.  50.  If  the  servitude  is 
•constituted  in  a  missive  wliicli  is  superseded  by  a  charter  or  disposition 
making  no  mention  of  the  servitude,  it  falls ;  for  there  can  be  no  possession 
ito  redargue  abandonment  as  in  the  case  of  positive  servitudes  (Sivriyht,  1828, 
7  S.  210;  Cowaii,  1872,  10  M.  735;  Follocl;  1827,  5  S.  195;  Croall,  1870, 
9  M.  323).  It  is  not  necessary  that  the  servitude  should  appear  on  record 
^(authorities  cited  in  Bell,  Prin.  994,  and  in  Rankine,  374,  notes  11  and  12), 
and  it  does  not  admit  of  possession  (Gray,  Mcctrns,  Cowan,  supra).  Pre- 
scription of  the  right  is  therefore  impossible  (Ersk.  ii.  9.  35  ;  Bell,  Prin.  994 ; 
Dundas,  1886,  13  R.  759  ;  but  see  Stair,  ii.  7.  9).  The  rules  stated  regarding 
the  title  of  the  granter  of  a  positive  servitude  apply  also  in  the  case  of  a 
negative  servitude.  The  granter  had  not  before  1874  to  be  entered  with 
his  superior  though  infeft  on  an  a  me  holding  {M'Gown,  1808,  Hume,  740), 
but  it  is  not  certain  that  a  servitude  granted  by  one  not  infeft  would  be 
valid  against  his  singular  successor  (see  Ld.  I'resident  in  Sivright,  supra). 
A  negative  servitude  cannot  be  conferred  by  acquiescence  or  tolerance,  as, 
for  example,  by  allowing  a  neighbouring  proprietor  to  open  a  window  in 
his  gable  {Morris,  1830,  8  S.  564;  Dundas,  1886,  13  R.  759,  and  other  cases 
cited  in  Bell,  Prin.  994,  note  {d)).  It  may  be  constituted  by  distinct 
reference  in  a  valid  writing  to  a  building  plan  (Bell,  Prin.  994,  868,  and 
cases  there  cited,  and  Rankine,  409  et  seq.,  and  see  Ld.  Young  in  Johnston, 
1893,  20  R.  539) ;  but  it  cannot  be  inferred  from  the  terms  of  a  feu-contract 
and  the  plan  relative  thereto  {Kiyiy,  1896,  24  R.  81,  34  S.  L.  R.  54).  It  has 
been  said  that  a  negative  servitude  may  be  constituted  by  implied  grant 


SEEVITUDES  281 

ou  the  authority  of  Heron,  1880,  8  E.  155 ;  but  the  later  ease  of  Dundas, 
1886,  13  E.  759,  is  against  tliat  view,  Ld.  Pres.  Inglis  remarking  there 
that  Heron  was  decided  on  the  law  of  tenement  not  of  servitude.  In 
Dundas  it  was  recognised  that  a  negative  servitude  can  only  be  constituted 
by  writing,  and  if  we  except  the  case  of  Heron  all  tlie  cases  in  which  servi- 
tudes have  been  held  to  be  constituted  by  implied  grant  were  cases  of 
positive  servitude  (see  Eankine,  373,  384).  A  negative  servitude  may  be 
constituted  by  statute  (see,  e.g.,  Bird,  1885,  29  L.  E.  Ch.  D.  1012).  The 
servient  owner  in  a  negative  servitude  cannot  dispute  that  it  is  binding  on 
him,  although  he  is  not  restrained  from  doing  acts  more  offensive  to  the 
dominant  owner  than  those  prohibited  by  the  servitude  (Greenhill,  1825, 
4  S.  160,  wrongly  stated  in  Bell,  Friji.  989). 

From  the  method  of  constitutino;  a  negative  servitude  it  follows  that  a 
purchaser  of  land  has  no  security  that  the  land  is  not  atfected  with  negative 
servitudes.  Duff  says,  however,  that  a  purchaser  is  protected  in  some  degree 
against  the  consequences  of  a  negative  servitude  by  the  implied  obligation 
on  the  seller  to  make  known  its  existence  (Duff,  185 ;  Urquhart,  1835, 
13  S.  844).  ]^lontgomerie  Bell  says  that  warrandice  does  not  authorise 
the  purchaser  of  lands  aiiected  by  servitudes  of  an  ordinary  or  common 
description  to  make  any  claim  on  the  seller  when  such  servitudes  are  light, 
but  that  a  servitude  may  be  so  heavy  as  to  authorise  a  claim  (Bell,  Zecf.  i. 
218;  Scmdilands,  lG72,'Mor.  10599;  Symington,  1780,  Mor.  1G637;  Beid, 
1822,  1  S.  334). 

ExTiNCTiox  OF  Servitudes. — (1)  Discharge. — Servitudes  may  be  extin- 
guished by  express  discharge  granted  by  the  dominant  proprietor.  This, 
like  the  writ  constituting  a  servitude,  must  be  either  hologra}>h  or  tested 
(Stair,  ii.  7.  4  ;  Ersk.  ii.  9.  37  ;  Bell,  Prin.  988),  unless  followed  by  rei  inter- 
ventus  (Bell,  Fiiji.  946).  A  form  of  discharge  will  be  found  in  Juridical 
Styles,  i.  52. 

(2)  By  Force  of  Statute. — The  discharge  may  be  in  terms  of  a  statute. 
Thus  by  the  Lands  Clauses  Consolidation  Act,  1845  (8  Vict.  c.  19,  ss.  93 
et  seq.),  provision  is  made  by  which  the  promoters  of  a  public  undertaking 
involving  tlie  acquisition  of  land  of  the  nature  of  commonty  may  convene 
a  meeting  of  tho.se  having  rights  of  property,  servitude,  etc.,  over  the  lands 
taken.  This  meetinEj  must  nuniljcr  five  at  least  if  there  be  so  many  entitled 
to  the  rights  in  question,  and  it  may,  by  majority,  apjioint  a  connnillee,  not 
exceeding  five  in  number,  having  full  power  to  enter  into  an  agreement 
with  ihe  pi-omoters  for  tlie  extinction  of  such  rights.  If  they  fail  to  agree 
with  the  promoters  as  to  the  amount  of  compensation  to  be  paid,  the  pro- 
ceedings between  the  promoters  and  the  committee  for  ascertaining  the 
amount  arc  the  same  as  in  a  (piestion  between  the  promoters  and 
the  proprietors  of  land.  If  no  committee  is  ellbctually  ap]ioint('d,  the 
atnount  of  compensation  is  hxed  by  a  valuator  appointed  by  the  Sherill',  in 
terms  of  sees.  56  et  srq.  of  the  Act.  On  payment,  or  tender  to  the  connnittee 
or  any  three  of  them,  or  on  deposit  in  bank  if  there  be  no  committee,  of  the 
compensation  ascertained  by  agrcenient  or  otherwise,  the  ])idmotcis  may 
execute  a  disposition  in  the  manner  provided  for  the  case  of  the  i)urchase 
of  land.s,  and  thereupon  the  lands  vest  in  them,  freed  from  all  the  rights  of 
servitude,  etc.  From  tlie  analogy  of  sec.  76  of  the  Act  il  wouM  lather 
aj»pear  that  the  Legislature  had  intended  to  ])rovide  for  a  disjtosilion  being 
granted  in  the  case  where  the  rights  are  extinguished  by  agreement, 
and  for  a  notarial  instrument  being  exjiede  where  no  agreement  can  1  e 
arrived  at ;  but  in  t'lnis  of  the  section,  where  an  agreement  cannot  be  con- 
clude<l,  the  promoters  would  ai>pareiitly  have  to  execute  a  disposition  in 


282  SERVITUDES 

favour  of  themselves,  reciting  the  steps  which  have  been  taken  to  vest  the 
lands  freed  of  the  riglits  of  servitude,  etc.,  in  themselves.     This  procedure 
need  only  be  used  wliere  the  multiplicity  of  persons  having  interests  of  the 
nature  of  property  in  the  lands  would  cause  difficulties.     In  Cunningham, 
1847,  9  D.  1469,  Ld.  Jeffrey  expressed  the  opinion  that  sees.  93-98  of  the 
Lands  Clauses  Consolidation  Act  are  intended  only  to  provide  a  means  of 
extinguishing  subordinate  rights  burdening  a  previously  vested  right  of  pro- 
perty, and  that  a  right  of  property  could  not  be  acquired  under  them.    This 
he  held  to  be  the  explanation  of  the  use  of  a  disposition  to  vest  the  lands  in 
the  promoters  freed  of  the  subordinate  rights.    On  the  other  hand,  Ld.  Fuller- 
ton  indicated  a  doubt  if  the  lands  could  have  been  previously  vested  ;  for  he 
said  :  "  If  it  were  a  case  of  servitude,  there  would  be  great  difficulty  in  hold- 
ing that  the  servient  proprietor  could  agree  to  dispose  of  the  lands ;  for  the 
statute  provides  that  all  parties  having  rights  of  servitude  shall  be  dealt 
with,  as  to  the  compensation  to  be  paid  for  the  extinction  of  their  rights,  in 
the  manner  mentioned  in  the  93rd  section  of  the  Lands  Clauses  Act."     And 
in  Fife  and  Kinross  Ricy.  Co.,  1859,  21  D.  187,  1205,  it  was  assumed  that  in 
taking  lands  held  by  several  proprietors  j^ro  indiviso,  a  committee  appointed 
in  terms  of  the  Act  by  the  proprietors  was  the  proper  party  to  deal  with, 
and  that  the  committee  could  serve  a  notice  of  claim,  and  have  the  compen- 
sation assessed  like  an  ordinary  proprietor  (Deas  on  Railways,  175).     In 
MacGrcgor,  1893,  20  R  300,  it  was  held  that  sees.  93-98  of  the  Lands  Clauses 
Act  did  not  apply  to  land  merely  because  there  were  servitude  rights  over 
it.     There  must  be  some  higher  rights  to  make  it  possible  to  describe  it  as 
being  of  the  nature  of  commonty.     But  if  there  are  merely  servitude  rights 
affecting  the  land,  this  procedure  is  unnecessary,  for  if  the  promoters  take 
the  land  from  the  proprietors  under  the  appropriate  clauses,  any  servitudes 
affecting  it  are  thereby  extinguished  (T'ow'?!  Council  of  Ohan,  1892, 19.  E.  912  ; 
and  see  MacGrcgor,  supra),  subject  to  the  obligation  on  the  promoters  to  pay 
compensation.      Such  rights   as   a  public  right  of  way  may,  however,  be 
expressly  protected   by  statute  (see,  e.g.,  sec.  46  of  the  Iiailway  Clauses 
Consolidation  Act,  1845,  8  Vict.  c.  20;  MacGrcgor,  supra ;  and  Cole,  1888, 
57  L.  J.  M.  C.  132).     The  promoters  cannot,  in  order  to  reduce  the  amount 
of  compensation  payable  by  them,  compel  the  owner  of  the  land  taken  to 
retain  over  it  a  right  of  servitude  in  favour  of  the  land  left  to  him  {Osurdd, 
1883, 10  R.  472  ;  affd.  8  App.  Ca.  623).    But  if  the  promoters  so  extinguish  a 
servitude,  they  must,  in  the  absence  of  any  statutory  provision  to  the  con- 
trary, pay  compensation  (Glover,  1851,  16  Q.  B.  912;  Clark,  1874,  L.  R. 
9  Ch.  120;  Ld.  I!la7itgre,  IS8Q,  13  R.  636  ;  rev.  1888,  15  R.  (H.  L)  56;  and 
see  B.  Bucclcuch,  1872,  L.  li.  5  H.  L.  418).      A   proprietor   may  not  be 
entitled  to  compensation  for  interference  with  the  access  to  his  property  by 
operations  carried  out  by  a  railway  company  on  land  taken  by  them  under 
the  Lands  Clauses  Act  where  such  access  to  his  property  is  by  a  public  road 
{Newport  Raihcay  Company,  1879,  7  R.  179;  affd.  1883,  10  Ft.  (H.  L.)  30). 
The  dominant  owner  is  not  entitled  to  a  notice   to  treat.      He  can  only 
claim  compensation  (Gale  on  Easements,  500,  and  cases  there  cited).     The 
promoters  cannot  use  sees.  17  et  seq.  of  the  Lands  Clauses  Act  to  extinguish 
a  servitude.     It  has  been  held  that  the  dominant  ow^ner  has  no  interest  in 
the  servient  tenement  in  the  meaning  of  sec.  17.     His  interest,  which  is 
injuriously  affected,  is  in  the  dominant  tenement  (MacGrer/or,  1893,  20  R. 
300;  Bon,  1878,  5  R.  972;  Hammersmith,  18G9,  L.  R.  4  H.  L.  171;   and 
seeMacey,  1864,  33  L.  J.  Ch.  377  ;  Metrojjolitan  Bistrict  Railway,  1879,  L.  R. 
13  Ch.  D.  607,  616,  per  Jessel,  M.  E.). 

The  question  may  arise  whether  a  servitude  so  extinguished  will  revive 


SERVITUDES  283 

on  the  sale  by  the  promoters,  of  the  land  which  was  subject  to  it  before  the 
compulsory  purchase.  In  an  English  case  a  servitude  constituted  by  Act  of 
Parliament  over  land  which  was  subsequently  taken  by  a  railway  company, 
and  thereafter  sold  by  them  as  superfluous  land,  was  held  to  have  revived 
{Bird,  1885,  29  L.  E.  Ch.  D.  1012).  In  this  question  it  may  be  of  import- 
ance that  compensation  has  not  been  paid  to  the  dominant  owner,  for  then 
there  is  no  practical  reason  why  land,  on  coming  into  the  possession  of  an 
ordinary  proprietor,  should  not  revert  to  its  former  state  of  subjection  to 
the  servitude.  If  compensation  has  been  paid,  it  has  been  paid  for  ex- 
tinction. Still,  if  compensation  has  not  been  paid,  it  is  due,  while  the 
promoters  hold  the  servient  tenement,  on  the  footing  that  the  servitude  has 
been  extinguished.  In  tliis  view  it  is  difficult  to  draw  any  distinction 
between  the  cases  where  compensation  has  been  paid  and  where  it  has  not. 
To  put  the  matter  in  another  way,  it  is  difficult  to  hold  that  total  extinction 
takes  place  only  on  payment  of  "compensation,  and  that  there  is  only  sus- 
pension till  then. 

(3)  6'o7i/;/sio?if.— Servitudes  may  be  extinguished  confusione  when  the 
dominant  and  servient  tenements  come  under  the  ownership  of  the  same 
person,  even  though  they  continue  to  be  possessed  by  difterent  tenants.  If 
they  merely  come  to  be  possessed  by  the  same  tenant  while  owned  by 
dift'erent  proprietors,  no  confusion  takes  place  {L'aird,  1859,  21  D.  848  ;  rev. 
18G1,  23  D.  (H.  L.)  5,  4  Macq.  127;  applied  1861,  23  D.  1080  ;  Walton 
Bros.,  1876,  3  11.  1130 ;  Ersk.  ii.  9.  36).  Instead  of  being  extinguished,  the 
servitude  is  only  suspended  where  a  separation  or  disunion  of  the  two  pro- 
perties may  be  anticipated.  That  is,  for  example,  where  one  property  is 
held  on  an  unlimited  title  and  the  other  in  liferent  or  entail,  or  where  the 
two  estates  are  entailed  on  different  lines  of  heirs  (Bell,  Frin.  997 ;  Donald- 
sons Trs.,  1839,  1  D.  449).  A  servitude  of  necessity  may  be  considered  to 
be  merely  suspended  when  the  two  tenements  come  to  be  owned  by  the 
same  proprietor  (see  Lord  Tresident  in  Walton  Bros.,  supra).  Where  the 
servitude  would  in  any  case  be  reconstituted  in  virtue  of  the  doctrine  of 
implied  grant,  it  is  not  of  much  consequence  wliethcr  it  is  looked  upon  as 
reviving^or  being  reconstituted.  Except  in  such  cases,  the  servitude  does 
not  revive  on  separation  of  the  estates  (Dirleton,  ii.  7.  6;  Ersk.  ii.  9.  10, 
36,  37 ;  Bell,  Frin.  997). 

(4)  Frescri'ftion.—A  servitude  may  furtlier  be  extinguished  by  the  long 
negative  prescription.  If  the  servitude  is  positive,  the  prescription  begins 
to°run  from  the  date  of  its  last  exercise  by  the  dominant  owner  (Ersk.  ii. 
9.  37).  Servitudes  are  not  properly  res  mercc  facidtatis  (see  Millar  on  Pre- 
scription, 87),  but  if  a  right  of  the  nature  of  a  servitude  be  ^a  jrs  wcrw 
facidlalis,  it  will  not  prescribe  non  utcndo  {Monro,  17G0,  ]\Ior.  14533  ;  timdh, 

1884,  11  E.  921;  Ersk.  ii.  9.  37;  r>ell,  Frin.  999,  2017,  and  authorities 
there  cited).  If  the  servitude  is  negative,  prescription  begins  to  run  from 
the  date  of  the  first  act  done  1)V  the  servient  owner  in  contravention  of 
the  dominant  owner's  right  (Ersk.  ii.  9.  37;  Wilkir,  1688,  Mor.  11189). 
A  negative  servitude  is  not  lost  by  neglect  to  engross  it  in  the  titles 
of  the  servient  tenement  for  forty  years  {Bosurll,  18-J9,  6  r.ell's  App.  427), 
and  even  if  it  is  so  engrossed  it  may  be  lost  by  the  negative  prescrip- 
tion (Grahrnn,  17:55,  Mor.  10745 ;  and  cf.  S/.nir,  1774,  ]\Ior.  10746).  Years 
during  which  the  dominant  owner  is  minor  (1617,  c.  12),  or  non  ralcns  agerc 
(see  Millar  on  Frcscription,  102),  are  not  counted,  unless  in  the  latter  cas^e 
the  disal)ility  is  due  to  the  dominant  owner's  own  fault  {Earl  of  Fife,  1887, 
15  E.  238).  In  Cheap,  1785,  Mor.  14520,  the  dominant  (.wner  of  a  servitude 
of  pasturage  had  not  exercised  it  for  forty  years,  yet  he  was  held  not  to 


284  SERVITUDES 

have  lost  it  as  liis  lands  were  part  of  a  barony  of  which  the  servitude  was 
a  pertinent  and  the  servitude  had  been  kept  up  by  the  other  parts  of  the 
barony  (but  see  Eankine,  46,  on  this  case ;  and  comp.  Ld.  Adv.  v.  Cathcart, 
1871,  9  M.  744;  Munro,  17G0,  Mor.  14533).  Possession,  though  not  so 
extensive  as  the  servitude  granted,  may  preserve  it  to  its  full  extent  (Monro, 
17G0,  Mor.  14533),  but  not  if  the  possession  be  ascribable  to  a  lower  right 
{Macfarlanc,  18G5,  4  M.  257).  Interruption  may  be  in  the  same  ways  as 
those  mentioned  in  dealing  with  the  constitution  of  a  servitude  by  prescrip- 
tion. If  the  interruption  is  via  fadi,  it  will  be  in  the  case  of  a  positive 
servitude  by  resuming  the  acts  of  use,  and  in  the  case  of  a  negative  servitude 
it  may  be,  for  example,  by  restoring  the  property  to  the  condition  in  which 
it  was  before  the  inconsistent  act. 

(5)  Acquiescence. — Interruption  of  tlie  dominant  owner's  right,  if  not 
extending  over  the  prescriptive  period,  will  not  be  effectual  to  deprive  the 
dominant  owner  of  his  right,  unless  acquiesced  in  by  him  (Rankine,  386 ; 
Bodgcrs,  1826,  4  Mur.  25  ;  1827,  5  S.  917  ;  afiU.  1828,  3  W.  &  S.  251 ;  Borth- 
wlck,  1677,  Mor.  Sup.  Stair,  66  ;  and  see  other  cases  on  public  rights  of  way,  to 
which  the  same  principles  apply,  liankine,  299).  But  acquiescence  on  the 
part  of  the  dominant  owner  in  acts  done  by  the  servient  owner  which  are 
inconsistent  with  the  full  operation  of  the  servitude,  may  itself  be  suffi- 
cient to  extinguish  the  servitude,  and  the  length  of  time  over  which  such 
acquiescence  has  extended  will  be  an  important  factor  in  determining  its 
effect,  even  though  not  extending  to  forty  years  {Hill,  1810,  5  Pat.  299; 
Camphell  Douglas,  0.  H.  1878,  16  S.  L.  IL  14;  see  Davidson,  1890,  17  Pu 
287).  Acquiescence  does  not  take  effect  where  the  dominant  owner  has  not 
been  made  aware  of  tlie  scope  of  the  acts,  and  that  they  interfere  with  his 
servitude,  or  where  he  has  made  no  objection  to  a  contravention  of  a  general 
feuing  plan,  in  which  his  servitude  is  contained,  on  some  point  as  to  which 
he  has  no  interest  to  interfere  {M'Gihhon,  1871,  9  M.  423;  Gould,  1869,  8 
M.  165).  Abandonment  may  be  inferred  from  acts  done  by  the  dominant 
proprietor  himself,  coupled,  it  may  be,  with  disuse  of  the  servitude  for  a 
period  less  than  forty  years.  Thus  where  a  proprietor  closed  up  his  access 
to  a  servitude  road  and  used  another  access  only  for  more  than  twenty 
years,  he  was  held  to  have  abandoned  the  right  {Mags,  of  liuihcrglcn,  1886, 
13  R.  745  ;  but  cf.  Rohison,  1831,  9  S.  627).  Again,  where  persons  possessing 
a  servitude  under  leases  entered  into  feu-contracts  superseding  the  leases 
and  making  no  mention  of  the  servitude,  they  w^re  held  to  have  abandoned 
the  servitude,  on  the  ground  that  "  when  a  person  possessing  as  a  lessee  of 
lands  acquires  afterwards  a  title  of  property  to  the  subject  of  the  lease,  there 
is  an  implied  renunciation  of  the  lease"  {Campbell,  1867,  5  M.  QtoQ).  But  in 
considering  the  extinction  of  servitudes  by  acquiescence  it  is  necessary  to 
keep  in  view  the  distinction  between  extinction  and  mere  suspension.  Thus 
in  Muirhead,  1864,  2  M.  420,  where  the  dominant  proprietor  in  a  servitude 
of  liglit  and  oioii  allium  toUendi  had  acquiesced  in  the  erection  by  the  servient 
owner  of  buildings  inconsistent  with  the  servitude,  his  singular  successor 
was  held  not  to  be  entitled  to  have  the  buildino;s  removed ;  but  it  was  ex- 
pressly  stated  by  the  judges  that  the  servitude  was  only  suspended  and  not 
extinguished.  A  servitude  may  be  clianged  into  the  burden  of  payment  of 
a  sum  of  money  by  acquiescence  on  the  part  of  the  dominant  owner,  for  a 
large  number  of  years  in  the  conversion  {Cockhurn,  1682,  Mor.  10742). 

(6)  Change  of  Circumstances. — A  servitude  may  be  destroyed  by  change 
of  circumstances  brought  about  l)y  the  act  of  neither  dominant  nor  servient 
proprietor.  Thus  a  servitude  of  prospect  may  be  lost  by  the  erection  of 
buildings  by  a  third  party,  or  a  servitude  of  way  for  the  w.atering  of  cattle 


SERVITUDES  285 

by  the  drying  up  of  a  spring.  It  may  further  be  destroyed  by  the  extinc- 
tion of  either  the  dominant  or  the  servient  tenement  (Ld.  ]\Iure  in  Winans, 
1888,  15  R.  540).  But  in  these  cases  if  the  exercise  of  the  servitude  may 
again  come  to  be  possible,  the  servitude  must  be  looked  on  as  merely  sus- 
pended, and  will  revive  when  it  can  again  be  exercised  (Bell,  Prin.  995, 

996). 

(7)  Exfimtion  of  Temporary  Pughts  of  Servitude. — A  servitude  of  necessity 
ceases  on  the  necessity  coming  to  an  end  (see  Rankine,  378,  and  cases  there 
cited).  A  servitude  may  be  granted  for  a  limited  time.  Thus  one  con- 
stituted by  a  lease  comes  to  an  end  on  the  expiry  of  the  lease  {Cami^hcU, 
1867,  5  M.  636).  A  servitude  granted  by  a  liferenter  or  lessee  is  of  course 
only  valid  against  himself,  and  ceases  with  the  termination  of  his  right 
(Ersk.  ii.  9.  37).  A  servitude  may  Ijc  subsidiary  to  another  right  or  obliga- 
tion, and,  if  so,  comes  to  an  end  along  with  that  right  or  obligation  (see  Ld. 
Mure  in  Winans,  1885,  15  R.  540). 

DiSTIXCTIONS  BETWEEN  SERVITUDES  AND  OTIIEK  RiGIITS. — TllC  distinc- 
tions between  servitudes  and  certain  other  rights  are  worth  noting.  Bell 
distinguishes  between  a  servitude  and  a  right  of  property  by  saying  that  a 
servitude  is  only  an  accident  of  property  "  non  pars  suhstaiitice  sice  fundi  scd 
accidens"  (Bell,  Prin.  979).  It  is  a  pertinent  of  the  right  of  property  (Bell, 
Prin.  745  ;  Borthiuiclc,  1688,  Mor.  9632). 

A  public  riglit  wherein  the  w^hole  public  is  interested,  and  of  which  the 
only  proper  example  is  a  public  right  of  way,  diflers  in  many  important 
respects  from  a  servitude  right  in  wliich  only  the  owner  of  the  dominant 
tenement  is  interested.  The  points  of  dilTerence  between  a  servitude  of 
road  and  a  right  of  ])ublic  road  were  stated  thus  by  Ld.  Deas  in  Thomson 
1862,  24  D.  975  :  "  In  the  first  place,  the  title  to  pursue  is  dilferent.  In 
the  one  case,  the  title  is  in  every  member  of  the  public.  In  the  other  case, 
the  title  is  only  in  the  owner  of  the  dominant  tenement.  Secondly,  the 
effect  of  the  action  is  different.  An  action  at  the  instance  of  any  member 
of  the  public  for  the  vindication  of  a  pu!)lic  road  if  fairly  tried,  is  res  fudicata 
for  or  against  the  whole  public.  Jn  the  case  of  a  servitude  road  the  result 
is  res  judicata  only  between  the  parties  to  the  action  and  their  successors 
as  owners  of  the  dominant  and  servient  tenements.  Thirdly,  the  jurisdic- 
dition  is  different.  A  judgment  by  the  Siieriir  in  the  case  of  a  servitude 
road  may  settle  the  matter  of  right  just  as  would  be  done  in  a  declarator ; 
while  in  the  case  of  a  public  road  the  Sheriff  can  settle  only  the  matter  of 
possession  till  a  declarator  is  brought  in  this  Court ;  aiul  consequently  the 
proof  allowed  is  different  in  the  two  cases— being  of  forty  years'  possession 
in  the  one  case  and  of  seven  years'  possession  in  the  other — facts  beyond 
the  seven  years  being  no  further  regarded  than  as  they  may  indicate  the 
character  of  the  possession  (as  by  tolerance  or  otiierwise)  within  the 
possessory  period.  Fourthly,  the  very  nature  of  the  two  rights  is 
essentially  dilferent.  A  right  of  servitude  road  excludes  the  public;  while 
a  right  of  public  road  admits  the  ymblic.  In  the  one  case  the  dominant 
proprietors  are  the  only  jtarties  interested,  and  they  nnist  use  the  right  in 
the  manner  least  l)urdcnsomc  to  the  servient  tenement,  the  ])r()]^rictor  of 
which  may  with  that  view  alter  the  direction  of  the  road  or  ai)]ily  to  the 
Judge  Ordinary  for  authority  to  do  so;  whereas  in  the  case  of  a  i)ul)lic 
road,  the  servient  proprietor  could  not  well  convene  all  parties  interested 
(viz.  the  ])ublic  gcnorally)  in  such  an  a])])lication,  altliough  he  may  get  the 
line  of  road  regulated  incidentally  if  a  competent  ])nKrss  liappens  to  be  in 
dependence.  Fifthly,  the  characteristics  to  be  ])rovcd  are  ([uitc  different. 
The  Sheriff  here  says  it  is  settled  law  that  if  one  termiiaus  be  a  public  place, 


28G  SERVITUDES 

the  road  may  be  a  public  one.  That  may  be  law,  but  I  doubt  whether  it 
is  settled  law,  and  I  do  not  wish  to  give  any  opinion  ujjon  it.  But  in  the 
case  of  a  servitude  road,  it  is  not  necessary  that  either  terminus  be  a  public 
place"  (see  Lyell,  18G7,  3  S.  L.  E.  299  ;  Higiit  of  Way). 

The  distinction  between  servitude  and  commonty,  as  stated  by  Bell,  is 
that  commonty  is  not  a  burden,  but  is  of  the  nature  of  limited  property 
(Bell,  Frin.  1088).  Commonty  is,  however,  nearer  to  a  right  of  servitude 
than  an  ordinary  right  of  property,  as  it  is  in  principle  merely  a  right  of 
joint  perpetual  use,  although  those  having  right  to  commonty  have  been 
empowered  by  statute  to  have  it  divided.  Commonty  is  distinguished  from 
a  servitude  of  pasturage  in  respect  that  the  owner  of  a  servitude  of  pastur- 
age is  not  entitled  to  share  in  the  division  of  a  commonty  over  which  his 
right  extends,  while  he  is  not  obliged  to  give  up  his  right  of  pasturage 
{Gordon,  1850,  13  D.  1 ;  Bell,  Prin.  1088).  Another  difference  is  that  a 
right  of  commonty  cannot  be  acquired  by  prescription  beyond  the  limits  of 
a  bounding  charter,  while  a  right  of  servitude  may  (Hcj^hurn,  1823,  2  S.  525  ; 
Gordon,  supra ;  Beaumont,  1843,  5  D.  1337). 

Common  interest  is  very  shnilar  to  a  servitude  right,  but  comes  nearer 
to  a  right  of  property.  The  main  distinction  between  common  interest  and 
servitude  is  that  in  the  former  the  proprietor  of  the  subjects  in  which  others 
have  a  common  interest  is  bound  to  keep  them  in  repair;  while,  as 
explained,  there  is  no  such  obligation  in  the  case  of  a  servitude  (Bell,  Prin. 
1086;  see  3Iackcnzic,  18G9,  7  M.  419;  Bennett,  1877,  4  E.  321;  Taylor's 
Trustees,  1890,  23  E.  738,  945). 

Thirlage  is  ordinarily  classed  among  servitudes,  but  it  is  not  propeily 
one,  servitudes  proper  never  consisting  in  faciendo  (see  Bell,  Prin.  1017 ; 
Eankine,  364;  Macdoivcdl,  1798,  Hume,  737;  Harris,  1863,  1  M.  833; 
Stolhs,  1873,  11  M.  530). 

Many  real  burdens  are  very  similar  in  their  nature  to  servitudes,  but  do 
not  possess  the  necessary  qualities  of  a  servitude  already  explained.  It 
may  be  of  importance  to  distinguish  whether  a  burden  can  be  classed  as  a 
servitude  or  not,  for  servitudes  are  much  more  easily  constituted  than  other 
real  burdens,  and  a  burden  which  would  be  otherwise  invalid  might  be 
binding  if  it  could  be  brought  within  the  class  of  servitudes. 

Particular  Servitudes. — The  ordinary  recognised  servitudes  may  now 
])e  shortly  mentioned,  reference  being  made  to  the  separate  articles  dealing 
with  them.  Under  urban  servitudes  are  classed :  -support,  stillicide,  and 
tinmen,  light,  air,  and  prospect,  altius  non  tollendi  and  non  a'dijicandi. 
Support  is  the  right  to  rest  part  of  a  building  on  the  property  of  another. 
It  includes  the  servitude  tigni  immittcndi,  which  is  the  right  to  insert  the 
end  of  a  beam  in  the  wall  of  another  person.  The  right  of  the  proprietor 
of  the  surface  stratum  of  an  estate  to  have  his  buildings  thereon  supported 
by  the  subjacent  and  adjacent  properties  may  be  looked  on  as  an  example 
of  the  servitude  of  support  (see  Eankine,  431  ct  seq.),  though  it  is  not 
usually  classed  among  such  servitudes.  Stillicide  is  the  right  of  a 
proprietor  to  let  the  eavesdrop  from  his  roof  fall  on  his  neighbour's  land, 
while  fiumen  is  the  right  to  collect  the  roof  water  in  rhones  and  discharge  it 
by  spouts  on  his  neighbour's  land.  The  servitudes  of  light,  air,  and  prospect 
give  the  right  to  prevent  a  neighbour  from  erecting  buildings  which  will 
interfere  with  these  benefits.  Altius  non  tollendi  is  the  servitude  whereby 
a  proprietor  may  be  restrained  from  building  above  a  certain  height ;  non 
cedificandi  is  the  restriction  against  building  at  all.  As  to  whether  the  pro- 
hibition to  build  except  according  to  a  plan  is  a  servitude,  see  Ld.  Young  in 
Johnston,  1893,  20  E»  539,  and  crs3S  referred  to  by  him.     The  privilege  of 


SEEVITUDES  287 

building  in  spite  of,  or  as  an  exception  to,  a  general  prohibition,  has  been 
called  a  servitude  allius  tollendi,  but  it  is  not  properly  a  servitude  (Bell, 
Friji.  1008  ;  Ersk.  ii.  9.  10).  A  servitude  may  be  created  to  prevent  a 
proprietor  opening  a  window  in  his  wall  so  as  to  overlook  his  neighbour 
{Bell,  Prill.  1006).  Eural  servitudes  include:  way, aquithaustus, aqueduct, 
pasturage,  fuel,  feal,  and  divot,  and  materials  for  building.  The  servitude 
of  way  or  passage  includes  the  right  to  footpaths,  horse  roads,  drove  roads, 
and  cart  or  carriage  roads.  Aqutehaustus  is  a  servitude  giving  right  to 
take  water  for  cattle,  domestic  purposes,  etc.,  from  a  well  or  stream  on 
the  property  of  another.  Aqueduct  gives  a  proprietor  the  right  to  take 
water  tlirough  his  neighbour's  land  by  pipes  or  other  channels.  This  some- 
times includes  the  right  to  maintain  a  dam.  Pasturage  is  the  servitude 
whereby  one  is  entitled  to  pasture  his  sheep  or  cattle  on  another's  land. 
The  servitude  of  fuel,  feal,  and  divot  is  the  right  to  cut  peats  or  turf  for 
fuel,  fences,  etc.  The  servitude  of  materials  for  building  entitles  a  pro- 
prietor to  take  from  the  land  of  another  such  materials  as  stone,  slates, 
wood,  etc.  It  has  been  doubted  whether  the  right  to  cut  growing  timber 
can  be  a  servitude,  on  the  ground  that  it  would  not  be  permanent  without 
action  on  the  part  of  the  servient  owner  (Eankine,  368),  but  in  Garden, 
1734,  Mor.  14517,  such  a  servitude  was  recognised.  The  right  to  take  sand 
and  gravel  is  a  servitude  of  the  same  description  as  the  right  to  materials 
for  building  (Aikman,  1830,  8  S.  943;  alt.  1832,  6  W.  &  S.  64;  Shar]), 
1829,  7  S.  679).  Other  positive  servitudes  are  the  right  of  bleaching  on 
another  person's  land,  of  taking  sea-ware  for  manure,  and  of  steeping  ilax 
in  a  mutual  stream.  (See  on  particular  servitudes.  Bell,  Prm.  1000  it  scq. ; 
Eankine,  390  et  scq.,  367,  368,  461,  498,  572.) 

Actions  and  Jukisdiction. — As  servitudes  consist  always  in  patiendo  or 
in  non  faciendo,  the  pursuer  in  an  action  relating  to  a  servitude  nearly 
always  desires  to  have  the  defender  restrained  from  doing  some  act,  and 
seldom  to  have  him  ordained  to  do  anything,  unless  indeed  it  is  to  restore  a 
condition  of  tilings  which  has  been  destroyed  by  an  act  of  the  defender. 
In  the  majority  of  cases,  therefore,  the  action  will  be  one  for  interdict,  either 
coupled  with  a  declarator  or  in  the  form  of  a  note  for  suspension  and  interdict. 
In  the  case  of  a  positive  servitude,  if  the  action  is  at  tlie  instance  of  the 
dominant  proprietor  it  may  conclude  to  have  the  ilefender  restrained  from 
doing  acts  inconsistent  with  or  offering  any  obstruction  to  its  exercise  ;  and 
if  it  is  at  the  instance  of  the  servient  owner  it  may  be  to  have  the  dominant 
owner  restrained  from  exercising  it.  In  the  case  of  a  negative  servitude,  if 
the  action  is  at  the  instance  of  the  dominant  owner  it  may  be  to  have  the 
defender  restrained  from  doing  acts  inconsistent  with  the  servitude.  In  an 
action  by  the  servient  owner  relating  to  a  negative  servitude,  he  generally 
wishes  liberty  to  do  some  act,  and  tbcrefoie  his  action  will  be  one  of 
declarator.  In  the  other  cases  too,  if  there  is  doubt  or  dispute  as  to  the 
uiatt(!r  of  right,  a  declarator  will  in  general  lie  used,  cou])]ed  with  an  interdict ; 
and  the  declarator  alone  may  be  used  if  a  decision  im  tlie  question  of  right 
only  is  wished.  Actions  relating  to  servitudes  may,  as  indicated,  be  directed 
to  having  the  defender  ordained  to  restore  the  property  to  the  state  in 
which  it  was  before  a  wrongous  act  done  by  him ;  and  they  may  claim 
damages  for  the  interference  with  the  riglit  of  property  or  of  servitude,  as 
the  case  may  be.  E.\'am]iles  of  declarators  of  servitude  rights,  and  of 
immunity  therefrom,  will  be  formed  in  M'Kecbnie  and  Lyall's  S/i/Ir.^,  pp.  58 
to  68. 

Some  recent  cases  may  be  referred  to  as  illustrating  thedifTerent  classes 
of  actions.     Among  these  actions  may  be,  declarators  of  servitude  right 


288  SEEVITUDES 

only  {Malcolm,  1885,  12  E.  843  ;  Winans,  1888,  15  E.  540;  Town  Council 
of  Ohan,  1872,  19  E.  912);  declarators  of  immunity  only  {Walton  Bros., 
187G,  3  E.  1130  ;  M'Laren,  1878,  5  E.  1042  ;  Winans,  siqmi)  ;  declarator  of 
servitvide  with  conclusions  for  interdict  against  interference  with  the  right 
for  having  erections  inconsistent  with  the  right  removed,  and  for  damages 
{Laicson,  1897,  24  E.  649) ;  declarators  of  immunity  with  conclusions  for 
interdict  against  use  of  the  alleged  servitude  right  {Macnah,  1890,  17  E, 
397;  Eome"  1884,  11  E.  OoS  ;  Oullens,  1895,  23  E.  209);  declarators  of 
immunity  with  conclusions  to  have  the  defenders  ordained  to  remove 
erections  placed  on  the  ground  in  terms  of  the  alleged  right  {The  Park 
Yard  Co.  Ltd.,  1897,  24  E.  1148;  rev.  1898,  25  E.  (H.  L.)  47);  declarator 
of  extent  of  right  {Marquis  of  Huntly,  1896,  23  E.  610);  note  of  suspension 
and  interdict  against  interference  with  servitude  right  {Union  Heritable 
Securities  Co.,  1886, 13  E.  670  ;  Macgrcgor,  1893,  20  E.  300)  ;  note  of  suspen- 
sion and  interdict  against  use  of  alleged  servitudes  {Smith,  1884,  11  E. 
921 ;  Smith,  1879,  6  E.  858 ;  affd.  1880,  7  E.  (H.  L.)  28).  _ 

Servitude  questions  have  very  frequently  been  raised  in  the  first 
instance  in  the  Dean  of  Guild  Court  {Johnston,  1893,  20  E.  539  ;  Dundas, 
1886,  13  E.  759  ;  King,  1896,  24  E.  81).  If  the  action  is  raised  in  the 
Sheriff  Court  it  may  be  in  the  form  corresponding  to  any  of  the  Court  of 
Session  actions  mentioned,  the  petition  for  interdict  taking  the  place  of  the 
note  for  suspension  and  interdict.  Whether  simple  declaratory  conclusions 
are  competent  in  the  Sheriff"  Court  under  the  Sheriff"  Court  Act  of  1838 
(1  &  2  Vict.  c.  119,  s.  15),  to  be  afterwards  referred  to,  is  doubtful  {Grierson, 
1882,  9  E.  437;  Stohbs,  1873,  11  M.  530);  but  declaratory  conclusions 
coupled  with  other  clearly  competent  conclusions,  such  as  for  interdict  or 
the  removal  of  obstructions,  do  not  make  the  action  incompetent  (see  Dove 
Wilson's  Sheriff  Court  Practice,  p.  59,  and  ca«es  there  cited).  If  the  Act  of 
1838  does  not  make  declarators  competent,  they  may  be  considered  com- 
petent where  the  value  of  the  subject  in  dispute  does  not  exceed  £50  per 
annum  or  £1000  value,  under  the  Sheriff  Courts  Act,  1877  (40  &  41  Vict, 
c.  50,  s.  8  (1)),  subject  to  the  conditions  imposed  by  that  Act.  Some  recent 
examples  of  cases  raised  in  the  Sheriff  Court  are  these :  declarators  of 
servitude  with  conclusions  for  interdict  against  interference  with  the  right 
{Hood,  1884,  12  E.  362;  Grigor,  1896,  24  E.  86);  declarators  of  servitude 
with  conclusions  to  have  obstructions  or  erections  inconsistent  with  the 
right  removed  {Heron,  1880,  8  E.  155;  Taylor's  Trs.,  1896,  23  E.  945)^; 
action  for  interdict  against  use  of  alleged  servitude  {Grierson,  1882,  9  E. 
437) ;  action  for  interdict  against  interference  with  servitude  {Commissioners 
of  Su}yply  of  Argyllshire,  1885,  12  E.  1255) ;  action  to  have  obstruction  to 
use  of  servitude  removed  and  for  interdict  against  further  obstruction  {Hill, 
1879,  6  E.  1363). 

The  dominant  owner  is  probably  not  entitled  to  enforce  restrictions 
under  a  servitude  right  unless  he  has  a  distinct  interest  to  do  so  (see  Ld. 
Pres.  Inglis  in  Gould,  1869,  8  M.  165  ;  and  see  Russell,  1882,  9  E.  660 ; 
Bosivell,  1881,  8  E.  986  ;  M'GiUon,  1871,  9  M.  423). 

In  certain  circumstances  the  Court  may  refuse  to  order  that  buildirgs 
erected  in  contravention  of  rights  of  the  nature  of  servitudes  be  removed. 
In  Grahame  the  House  of  Lords  found  it  was  not  expedient  that  decree 
should  be  granted  for  the  removal  of  buildiugs  erected  by  the  magistrates 
of  a  burgh  in  contravention  of  a  right  of  bleaching  and  recreation  vested  in 
the  inhabitants  of  the  burgh,  in  respect  that  the  action,  though  at  the 
instance  of  one  of  the  inhabitants,  was  really  in  the  interest  of  the 
community,  that  therefore  the  interests  of  the  community  on  both  sides  of 


SESSION,  COUET  OF  289 

the  litigation  must  be  considered,  and  that  such  interests  would  best  be 
served  by  the  acceptance  of  an  olfer  by  the  magistrates  to  lay  out  and 
dedicate  to  the  use  of  the  community  a  piece  of  ground  in  lieu  of  that  which 
had  been  wrongfully  appropriated  by  them  (Graliamc,  1879,  6  E.  10G6  ; 
1881,  8  E.  395  ;  rev."'lS82,  9  E.  (H.  L.)  91 ;  see  also  Stevenson,  18G7,  3  S.  L.  E. 
184). 

A  declarator  of  right  to  a  servitude  may  be  tried  before  a  jury  in  pre- 
ference to  the  Lord  Ordinary  {Malcolm,  1885,  12  E.  843).  (For  form  of 
issue,  see  Malcolm,  suj)ra\  Steele,  1832,  10  S.  857;  J^crid.  Styles,  iii.  819; 
Battraij,  1867,  5  M.  944).  A  feuar  is  not  entitled  to  enforce  building 
restrictions  undertaken  by  the  superior,  of  the  nature  of  servitudes,  by  with- 
holding pavment  of  his  feu-duty  until  the  servitude  is  complied  with 
(Cockburn,  1825,  4  S.  128  ;  rev.  1826,  2  W.  &  S.  293). 

By  the  Sheriff  Courts  Act,  1838,  the  jurisdiction  of  Sheriffs  was  extended 
to  all  actions  relative  to  questions  touching  either  tl:e  constitution  or  the 
exercise  of  real  or  priedial  servitudes,  and  it  was  provided  that  all  parties 
against  whom  such  actions  might  be  brought  should  be  amenable  to  the 
jm-isdiction  of  the  Sheriff  of  the  territory  within  which  the  servitude  should 
be  situated  (1  &  2  Vict.  c.  119,  s.  15;  and  see  Broicn,  1843,  5  D.  463; 
Stolhs,  1873,  11  M.  530  ;  McLarens  Trs.,  1873,  1  E.  60).  The  section  has 
been  held  not  to  apply  to  an  action  about  a  public  right  of  way  (Thomson, 
1862,  24  D.  975).  As  stated  before,  it  is  not  clear  that  it  makes  declarators 
of  rights  of  servitude  competent  in  the  Sheriff  Court  (Stohhs,  stqirn).  If  the 
question  of  right  is  raised  in  the  Sheriff  Court,  the  Sheriff  must  decide  it, 
and  a  possessory  judgment  is  incompetent  (Goiv's  Trs.,  1875,  2  E.  729 ; 
St.  Andrews  Ladies'  Golf  Club,  1887, 14  E.  686  ;  see  also  Loiuson's  Trs.,  1864, 
3  M.  53). 

Session,  Court  of. — Prior  to  the  institution  of  the  Court  of 
Session,  sev^eral  attempts  had  been  made  to  establish  a  Supreme  Civil 
Court  in  Scotland,  buL  the  results  were  inadef[uate  and  unsatisfactory. 
From  an  early  date  justice  had  been  administered  throughout  Scotland 
chiefly  by  local  judges, — Judges  Ordinary, — as  Sheriffs  in  counties  and 
bailies  in  burghs.  Causes  were  also  heard  in  the  first  instance,  and  by 
way  of  appeal  from  the  decisions  of  the  Judges  Ordinary,  by  the  king  in 
person,  as  well  as  by  the  Justiciar  and  Chamberlain,  who  went  on  circuit 
througliout  the  whole  kingdom.  Earliament  and  tiie  King's  Council  also 
exercised  jurisdiction,  original  and  appellate,  of  a  somewhat  ill-defined  and 
often  arbitrary  character. 

In  1367  the  experiment  was  tried  of  devolving  the  duties  of  rarliament 
upon  committees,  and  in  the  following  year  the  legislative  and  judicial 
committees,  known  later  as  Lords  of  the  Articles  and  Lords  Auditors,  were 
instituted.  To  the  former  were  delegated  the  legislative  powers  of 
Parliament,  and  to  the  latter  its  judicial  functions.  This  delegation  of 
authority  was  of  a  more  or  less  imperfect  kind,  and  Parliament  itself 
frequently  exercised  the  powers  of  both  committees.  The  system  continued 
for  many  years,  and  the  Judicial  Committee  (and  in  vacation  the  King's 
Council)  formed  practically  a  Supreme  Civil  tribunal,  but  its  jurisdiction 
was  of  a  limited  kind.  It  had  no  jurisdiction  in  questions  of  heritable 
right,  or  in  ecclesiastical  causes ;  and  while  appeals  from  all  Judges  Ordinary, 
and  even  from  the  Justiciar,  were  competent,  they  were  not  entertained 
usually,  except  upon  certain  special  grounds,  as  excess  of  jurisdiction.  The 
Lords  Auditors,  however,  were  not  scru])ulous  to  confine  themselves  to  the 
exercise  of  their  proper  functions ;  they  frequently  exceeded  their  jurisdiction, 

8.  E. — VOL.  XI.  19 


290  SESSION,  COUKT  OF 

and  encroached  upon  tliat  of  the  Judges  Ordinary — an  irregularity  which 
was  finally  forbidden  by  James  i.  (Act  1424,  c.  45). 

Another  important  change  v/as  introduced  by  James  i.  when,  in  1425, 
he  instituted  the  Court  known  as  "  The  Session."  This  Court  was  a  Committee 
of  Parliament,  but  was  independent  of  it,  as  it  sat  during  the  parliamentary 
vacation  as  well  as  during  session,  and  its  decisions  were  not  subject  to 
appeal.  The  Session  was  ordained  to  sit  three  tim.es  in  the  year,  in  such 
places  as  the  king  should  appoint,  and  by  Act  1457,  c.  61,  Edinburgh,  Perth, 
and  Aberdeen  were  fixed  as  the  three  j)laces,  with  a  session  of  forty  days  at 
each.  This  Court  had  a  possessory  jurisdiction  in  questions  of  heritable 
right,  and  a  concurrent  jurisdiction  with  Judges  Ordinary  in  certain  other 
matters  ;  but  it  seems  never  to  have  taken  root  in  the  judicial  system,  and 
soon  became  of  little  account,  so  tliat  we  find  that  later  Acts  (1469,  c.  26 ; 
1475,  c.  62  ;  and  1487,  c.  105),  while  they  regulate  actions  before  the  Judges 
Ordinary,  and  provide  for  appeals  to  the  King's  Council,  ignore  the  Session 
altogether. 

In  1503  the  Session  was  superseded  by  the  Daily  Council  {q.v.),  which 
was  appointed  to  sit  continually  in  Edinburgh.  But  this  Court  also  proved 
unsatisfactory,  and  was  in  turn  superseded  by  the  Court  of  Session 
established  by  James  v. 

The  Act  of  Institution  of  the  Court  of  Session  was  passed  on  17th  May 
1532,  and  proceeds  upon  the  preamble  that  "  our  Sovraine  is  maist  desyrous 
to  have  ane  permanent  ordour  of  justice  for  the  universal  wele  of  all  his 
lieges  and  therefore  tends  to  institute  ane  college  of  cunning  and  wise  men 
baith  of  spiritual  and  temporal  estate,  for  the  doing  and  administracioun  of 
justice  in  all  civil  actions,  and  tharfor  thinks  to  be  chosen  certane  persones 
maist  convenient  and  qualifit  therefor  to  the  nowmer  of  xiiii  persones  half 
spiritual  half  temporal  with  ane  president."  These  fifteen  senators  of  the 
College  of  Justice  were  to  sit  and  decide  upon  all  civil  actions,  their  decrees 
to  have  the  same  "strength  force  and  effect  as  the  decretis  of  the  Lords  of 
Sessioun  had  in  all  tymes  bigane."  It  w^as  also  provided  that  "  my  Lord 
Chancellar  being  present  in  this  touu  or  uther  place  he  sail  have  voit  and  be 
principale  of  the  said  Couusell,  and  sic  uther  lordis  as  sail  pleis  the  kingis 
grace  to  enjone  to  them  of  his  Grot  Counsell  to  have  voit  siclik  to  the 
nowmer  of  thre  or  four." 

The  Court  thus  established,  while  it  was  a  development  of  previously 
existing  tribunals,  is  believed  to  have  been  modelled  largely  upon  the 
Parliament  of  Paris,  from  which  it  derived  the  mixture  of  lay  and 
ecclesiastical  judges,  the  extraordinary  lords,  the  exemption  of  its  members 
from  taxation,  the  method  of  leading  evidence  before  the  Court  without  a 
jury,  and  the  recognition  of  the  civil  and  canon  laws  where  there  was  no 
common  law  applicable  to  the  circumstances.  Eoman  and  papal  influences 
are  also  directly  traceable  in  the  original  conception  and  form  of  the 
Court. 

From  the  date  of  its  institution  down  to  the  present  time,  the  Court  of 
Session  has  existed  as  the  Supreme  Civil  Court ;  its  sittings  have  never  been 
interrupted,  except  when  occasionally  prevented  by  war  or  pestilence,  and 
when  during  the  Protectorate  of  Cromwell,  from  1650  to  1661,  it  was 
superseded.  The  constitution  of  the  Court  has,  of  course,  been  greatly 
altered  during  this  period.  The  arrangement  of  the  Courts,  as  the  result 
of  successive  statutes,  is  entirely  changed. 

Originally  the  whole  fifteen  judges  sat  collectively  in  what  was  known  as 
the  Inner  Chamber,  or  Inner  House,  but  the  Ordinary  Lords,  in  addition  to 
their  duties  in  the  Inner  House,  sat  week  about  in  the  Outer  House  to  hear 


SESSION,  COUET  OF  291 

certain  causes  wliicli  they  determined  in  the  first  instance.  An  appeal 
against  their  decisions  lay  to  the  whole  Court.  By  48  Geo.  in.  c.  151,  the 
judges  were  recj^uired  to  sit  in  two  Divisions ;  permanent  Lords  Ordinary 
for  the  Outer  House  were  introduced  by  50  Geo.  iii.  c.  112,  and  other  im- 
portant changes  were  brought  about  by  the  Judicature  Act,  1825  (G  Geo.  iv. 
c.  120),  and  the  Act  1  Will.  iv.  c.  69.  See  College  of  Justice; 
Senators  ;  Advocate. 

Present  Constitution. 

As  now  constituted,  the  Court  of  Session  consists  of  thirteen  judges. 
The  Inner  House  is  divided  into  two  Courts,  called  the  First  and  Second 
Divisions,  while  five  Lords  Ordinary  sit  permanently  in  the  Outer  House. 

The  Inner  House. — The  two  Divisions  are  Courts  of  co-ordinate  authority. 
They  each  consist  of  four  judges.  The  Lord  President  presides  over  the 
First  Division,  and  tlie  Lord  Justice-Clerk  over  the  Second.  In  each,  three 
judges  are  necessary  to  form  a  quorum ;  but  in  the  absence  of  any  of  the 
members  of  one  Division,  judges  from  the  other  Division,  or  from  the  Outer 
House,  may  be  called  in  to  make  up  a  quorum  (2  Will.  iv.  c.  5,  s.  2). 

Except  in  a  few  special  cases,  the  appellate  jurisdiction  of  the  Court  of 
Session  is  exercised  by  the  Inner  House.  When  an  ordinary  cause 
originates  in  the  Court  of  Session,  the  pursuer  selects  either  Division  he 
pleases  to  be  the  Court  of  Review  in  the  event  of  an  appeal  from  the 
judgment  of  the  Lord  Ordinary.  In  appeals  from  judgments  pronounced 
in  inferior  Courts,  the  appellant  has  his  choice  of  Divisions.  In  any  case, 
the  Lord  President  has  power  to  transfer  causes  from  one  Division  to  the 
other  (20  &  21  Yict.  c.  56,  ss.  1-3,  7).  See  Eeclaiming  Note;  Appeal; 
Bill  of  Exceptions  ;  New  Trial  ;  Eeport  to  Inner  House. 

AVhilo  the  two  Divisions  of  the  Inner  House  are  chiefiy  Courts  of 
Appeal,  they  also  exercise  an  original  jurisdiction  in  certain  classes  of 
cases.  Actions  of  Proving  of  the  Tenor,  Division  of  Commonty,  Division  of 
Eunrig  Lands,  Eanldug  and  Sale,  and  Cognition  and  Sale  {q.v.  under  their 
respective  headings)  are  appropriated  to  the  Inner  House.  In  their  initial 
stages  a  Lord  Ordinary  deals  with  these  actions,  but  he  afterwards  transfers 
them  to  the  Inner  House  by  making  "  great  avizandum."  Applications  to 
the  Court  to  exercise  its  Nolile  Officium  (q.v.)  are  made  directly  to  the  Inner 
House.  All  summary  petitions  arc  technically  Inner  House  processes,  but 
by  statute  they  are  now  for  the  most  part  appropriated  to  the  Junior  Lord 
Ordinary  (21  &  22  Vict.  c.  56,  s.  4).  See  Petition.  Special  Cases  (q.v.) 
brought  under  the  Act  31  &  32  Vict.  c.  100,  s.  63,  must  be  brought  in  the 

Inner  House. 

When  a  case  wliich  has  been  tried  by  a  jury  comes  before  the  Division 
upon  a  Bill  of  Exceptions  or  motion  for  a  new  trial,  the  judge  who  presided 
at  tlie  trial  hears  the  case  along  with  the  Division. 

Wlierc  the  judges  of  the  Division  are  equally  divided  in  opinion  upon  a 
question  of  fact  or  upon  a  question  of  law  not  involving  any  legal  principle 
of  importance,  the  case  may  be  reheard  before  the  judges  of  that  Division, 
with  llie  addition  of  such  other  judges  as  may  be  necessary  to  bring  the 
number  up  to  five,  and  judgment  will  be  pronounced  in  accordance  with 
the  opinion  of  the  majority  of  the  Court  so  constituted  (31  &  32  Vict. 
c.  100,  s,  59).  In  other  cases  of  equal  division,  or  in  any  case  of  dilficulty  or 
importance,  the  cause  may  1)C  determined  by  getting  the  opinions  in  writing 
of  three  other  judges,  who  have  the  printed  papers  in  the  cause  laid  before 
them,  or  by  a  rehearing  before  the  Division  and  such  other  judges  as  may 
be  necessary  to  bring  up  the  number  to  seven  (13  &  14  Vict.  c.  36,  s.  35, 


292  SESSION,  COUET  OF 

and  31  &  32  Vict.  c.  100,  s.  60).  In  cases  of  difficulty  and  importance,  the 
whole  Court  may  be  consulted  upon  questions  of  law  stated  in  writing,  or 
the  case  may  be  reheard  before  the  whole  Court  (48  Geo.  iii.  c.  151,  s.  10; 
6  Geo.  IV.  c.  120,  ss.  23,  24). 

Outer  House. — In  the  ordinary  case  an  action  originating  in  the  Court 
of  Session  is  brought,  in  the  first  instance,  before  any  one  of  the  five  Lords 
Ordinary  who  sit  in  the  Outer  House.  These  judges  have  co-ordinate 
jurisdiction,  and  tlie  pursuer  has  his  choice  as  to  which  of  them  shall  try 
his  case.  Tlie  judge  whom  he  selects  alone  can  consider  and  dispose  of  the 
cause,  unless  it  is  transferred  by  the  Lord  President  in  virtue  of  a  power 
conferred  upon  him  by  the  Act  20  &  21  Vict.  c.  56,  s.  1.  Certain  causes, 
however,  are  appropriated  to  particular  judges.  Tlie  Junior  Lord  Ordinary 
has  exclusive  jurisdiction  in  Summary  Petitions  not  incident  to  pending 
actions,  and  as  Lord  Ordinary  on  the  Bills  during  session,  he  performs  the 
whole  business  of  the  Bill  Chamber  (20  &  21  Viet  c.  56,  s.  4;  53  Geo.  in, 
c.  64,  s.  2).  The  Second  Junior  Lord  Ordinary  exercises  the  jurisdiction  in 
Teind  causes,  so  far  as  appropriated  to  the  Outer  House  under  the  Acts  53 
Geo.  III.  c.  64,  s.  3,  and  6  Geo.  iv.  c.  120,  s.  54.  To  him  also  lie  appeals  from 
the  Sheriff  in  cases  relating  to  church  building  and  repairing,  etc.  (31  & 
32  Vict.  c.  96).  To  the  Third  Junior  Lord  Ordinary  is  assigned  the  Outer 
House  jurisdiction  in  Exchequer  causes  (19  &  20  Vict.  c.  56). 

There  are  also  special  Courts  specially  constituted  for  the  disposal  of 
certain  definite  classes  of  cases.  1.  Two  judges  are  appointed  by  Act  of 
.Sederunt  to  hear  and  determine  appeals  against  Vcduations  of  lands  and 
heritages  (31  &  32  Vict.  c.  80,  s.  8 ;  20  &  21  Vict.  c.  58,  s.  2 ;  and  42  &  43 
Vict.  c.  43,  ss.  7-9).  2.  Three  judges  are  appointed  to  form  a  Begistration 
Appeal  Court  (31  &  32  Vict.  c.  48,  s.  22).  3.  Two  judges  are  appointed  to 
-try  Election  Petitions  (Parliamentary)  (31  &  32  Vict.  c.  125,  s.  58 ;  42  &  43 
Vict.  c.  75;  and  46  &  47  Vict.  c.  51).  The  Bill  Chamber  (q.v.)  is  that 
department  of  the  Court  of  Session  which  during  the  whole  year  dis- 
,charges  summary  and  preliminary  business.  The  Teind  Court  (q.v.)  is 
distinct  from  the  Court  of  Session,  having  a  special  jurisdiction  and  a 
separate  establishment  of  clerks  and  officers,  but  the  Commissioners  are 
the  judges  of  the  two  Divisions  of  the  Court  of  Session  and  the  Lord 
Ordinary  on  Teiuds,  five  being  a  quorum  (2  &  3  Vict.  c.  36,  s.  8;  31  &  32 
Vict.  c.  100,  s.  6).  Sessions  of  the  Court. — The  Court  has  a  Winter  and  a 
Summer  Session  ;  the  former  lasting  from  15th  October  till  20th  March,  and 
the  latter  from  12th  May  till  20th  July.  The  Court  has  power  (invariably 
exercised)  to  adjourn  for  a  fortnight  at  Christmas  time,  and  for  a  week  in 
February,  and  also  to  observe  any  general  holiday.  It  does  not  sit  on  the 
term  days,  15th  May  and  11th  November  (C.  S.  Act,  ss.  4,  7).  The  Sessions 
may  be  extended  (2  &  3  Vict.  c.  36,  ss.  10,  11 ;  C.  S.  Act,  s.  5).  Monday  is 
not  a  sederunt  day. 

Jurisdiction. 

I.  Persons. — Civil  actions  against  foreigners  must  be  brought  in  the 
Court  of  Session,  which  is  the  proper  commune  forum.  The  Sheriff  Court, 
though  it  has  a  large  and  gradually  increasing  concurrent  jurisdiction  with 
the  Court  of  Session,  has  no  jurisdiction  over  foreigners  except  in  a  few 
special  cases  (7^/^:^6,1846,8  D.  952;  Pirie,  1867,5  M.  497;  1  Will.  iv. 
c.  69,  s.  22 ;  39  &  40  Vict.  c.  76,  s.  47 ;  40  &  41  Vict.  c.  50,  s.  8).  For  cases 
in  which  foreigners  are  subject  to  the  jurisdiction  of  the  Scottish  Courts, 
see  Jurisdiction  ;  Domicile. 

II.  Causes. — The  general  rule  is  that  the  Court  of  Session  has  jurisdic- 


SESSION,  COUET  OF  293 

tion,  original  and  appellate,  in  all  civil  causes  cognisaLle  in  a  Scottish 
Court,  except  where  it  is  expressly  excluded.  It  can  "  set  aside  or  suspend 
the  sentences  of  all  inferior  Courts,  unless  where  that  power  is  denied  them 
by  special  statute "  (Ersk.  i.  3.  20).  To  exclude  this  power,  the  right  of 
review  must  be  taken  away  expressly  or  by  necessary  implication  ;  and  even 
where  appeal  is  so  excluded,  the  Court  of  Session  may  set  aside  the 
judgments  of  inl'erior  Courts  where  there  has  been  excess  of  jurisdiction. 
It  has  also  power  to  compel  inferior  Courts  to  exercise  their  jurisdiction. 

Privative  Jurisdiction. — Certain  classes  of  causes  can  be  determined 
only  in  the  Court  of  Session. 

(1)  Exchequer  Causes. — The  jurisdiction  formerly  exercised  by  the  Court 
of  E.xchequer  {q.v)  is  now  vested  in  the  Court  of  Session  by  19  &  20  Vict. 
c.  56.  This  jurisdiction  embraces  all  questions  relating  to  the  revenues  of 
the  Crown  as  defined  by  6  Anne,  c.  26,  and  the  appointment  and  control 
of  tutors-dative. 

(2)  Maritime  and  other  causes  formerly  competent  to  the  Admiralty 
Court  {q.v.),  transferred  to  the  Court  of  Session  by  11  Geo.  iv.  and  1  Will.  iv. 
c.  69 ;  but  certain  of  these  cases  are  under  the  Act  competent  to  the  Sheril'f 
Court. 

(3)  Teind  Causes. — The  jurisdiction  of  the  Commissioners  of  Teinds  is  now 
exercised  by  Court  of  Session  judges  sitting  in  the  Teind  Court  {q.v.)  (6  Anne, 
c.  9  ;  2  &  3  Vict.  c.  36,  s.  8 ;  31  &  32  Vict.  c.  100,  s.  9 ;  6  Geo.  iv. 
c.  120,  s.  54). 

(4)  Actions  relating  to  Rights  of  Status. — The  jurisdiction  in  consistorial 
causes  formerly  exercised  by  "the  Consistorial  and  Commissary  Courts  {q.v.) 
was  transferred  to  the  Court  of  Session  by  11  Geo.  iv.  and  1  Will.  iv.  c.  69, 
s.  33.  While  all  actions  wliich  involve  a  determination  of  a  right  of  status, 
such  as  actions  of  declirator  or  nullity  of  marriage,  divorce,  and  separation, 
must  be  brought  in  the  Court  of  Session,  the  Sheriff  may  entertain  actions 
incident  to  the  right,  e.g.  interim  aliment. 

(5)  Questions  of  Heritable  Iii{/ht.— Actions  of  declarator  of  property  in 
heritage  and  other  competitions  of  heritable  right  can  be  determined  in 
no  other  Court,  except  where  the  value  of  the  subject  in  dispute  does  not 
exceed  £50  by  the  year,  or  £1000  value,  in  which  case  actions,  excluding 
adjudications  and  reductions,  relating  to  a  (pu'stion  of  lieritable  right  or 
title  may  be  brought  in  the  Sherill  Court.  So  also  may  all  actions  of 
division  of  commonly  and  of  division  and  sale  of  common  property  (Sheriff 
Courts  Act,  1877,  s.  8).  The  Sheriir  can  also  entertain  possessory  actions 
relating  to  heritable  property  {Maxiccll,  1866,  4  M.  454),  and  can  determine 
actions  dependent  upon  heritable  title  whrre  the  title  itself  is  not  in  dispute, 
e.fj.  actions  for  rent.  Tlie  Siieril'fhas  also  jurisdiction  in  actions  of  straighten- 
ing marches  (1661,  c.  41),  division  of  runrig  lands  (Ersk.  iii.  3.  59),  and 
actions  relative  to  questions  of  nuisance  or  damages  through  undue  exercise 
of  rights  of  property  (I  &  2  Vict.  c.  119,  s.  15),  and  relating  to  pr;e.lial 
servitudes  {Caws  Trs.,  1875,  2  R.  729;  Loivsons  Trs.,  1864,3  M.  53;  Stohhs, 
1873,  11  M.  530). 

(6)  Actions  of  Declarator,  except  so  far  as  the  jurisdiction  of  the  Sheriff 
is  authoris(.'d  by  the  Sheriff  Courts  Act,  1877,  s.  8  {M'Larens  Tr.,  1897,  24 
R  960),  and  in  a  limited  class  of  cases  wiiere  the  Sheriff  has  by  statute 
power  to  declare  the  existence  or  forfeiture  of  rights  (1  &  2  Vict.  c.  119, 
s.  15,  and  16  &  17  Vict.  c.  80,  .s.  32).  I'.ut  a  Sherilf  Curt  petition,  other- 
wise competent,  is  not  invalidiitcd  by  a  declaratory  conclusion. 

(7)  Actions  of  JlrilnHlun. — The  Sheriff  cannot  reduce  a  deed,  but  he  may 
decide  on  the  validity  of  a  deed  bruuglit  before  him  by  way  of  exception 


294:  SESSION,  COUKT  OF 

(Sheriff  Courts  Act,  1877,  s.  11) ;  and  he  has  a  statutory  power  to  set  aside 
certain  deeds  (Bankruptcy  Acts,  1856,  s.  10,  and  1857,  s.  9;  Employer 
and  Workmen's  Act,  1875,  ss.  3, 4,  5,  6  ;  see  M'Larcns  Tr.,  1897,  24  E.  960). 

(8)  Suspensions,  except  in  the  case  of  charges  for  sums  under  £25  (A.  of 
S.,  10th  July  1839,  ss.  116,  117). 

(9)  Adjudications  (1672,  c.  19). — It  is  thought,  however,  that  adjudi- 
cations contra  hcrcditatcm  jaccntcm  may  be  brought  in  the  Sheriff  Court 
(Ersk.  ii.  12.  53 ;  Bell,  Com.  i.  714). 

(10)  Certain  EquitaUe  Causes. — All  Courts  in  Scotland  administer  equity 
in  the  ordinary  sense  of  the  term,  but  the  Court  of  Session  alone  has 
jurisdiction  in  exceptional  cases.  In  virtue  of  its  nolile  officium  the  Court 
of  Session  may  supply  omissions  or  defects  in  statutes  or  statutory  procedure 
and  in  certain  deeds,  as  trust  deeds,  so  as  to  carry  out  their  true  purpose ; 
and  afford  other  remedies,  on  petition  to  the  Inner  House,  in  cases  which  are 
competent  neither  to  the  Outer  House  nor  the  Sheriff  Court.  See  ISTobile 
Officium;  Equity. 

Jurisdiction  Excluded. 

A.  Both  the  Original  and  ArPELLATE  jurisdiction  of  the  Court  of 
Session  is  excluded  in  (1)  Criminal  Causes.  In  order  to  obviate  the  difficulty 
of  determining  what  class  of  cases  are  of  a  criminal  nature  in  respect  to 
-proceedings  by  v/ay  of  summary  con:iplaint,  it  is  provided  by  sec.  28  of 
the  Summary  Procedure  Act,  1864,  that  "  in  all  proceedings  by  way  of 
■complaint  instituted  in  Scotland,  in  virtue  of  any  such  statutes  as  are  herein 
before  mentioned,  the  jurisdiction  shall  be  deemed  and  taken  to  be  of  a 
criminal  nature  when,  in  pursuance  of  a  conviction  or  judgment  upon  such 
complaint,  or  as  part  of  such  conviction  or  judgment,  the  Court  shall  be 
required  or  shall  be  authorised  to  pronounce  sentence  of  imprisonment 
against  the  respondent,  or  shall  be  authorised  or  required  in  case  of  default 
of  payment  or  recovery  of  a  penalty  or  expenses,  or  in  case  of  disobedience 
to  their  order,  to  grant  warrant  for  the  imprisonment  of  the  respondent  for 
a  period  limited  to  a  certain  time,  at  the  expiration  of  which  he  shall  be 
entitled  to  liberation ;  and  in  all  other  proceedings  instituted  by  way  of 
complaint,  under  the  authority  of  any  Act  of  Parliament,  the  jurisdiction 
shall  be  held  to  be  civil"  (see  Smith,  1866,  4  U.  671 ;  Scott,  1868,  7  M. 
:270;  Lang,  1869,  7  M.  473;  Forhcs,  1871,  10  M.  244;  Ledgerwcod,  1863, 
•7  M.  261). 

Certain  old  statutes  confer  a  criminal  jurisdiction  on  the  Court  of 
Session,  which,  however,  is  never  exercised  (Er&k.  i.  3.  21).  The  Court  has 
jurisdiction  at  common  law  and  by  statute  to  puuish  its  own  officers, 
inferior  judges  and  the  officers  of  inferior  Courts  for  malversation.  It  has 
also  power  to  punish  for  contempt  of  Court — a  power  most  frequently 
exercised  in  cases  of  breach  of  interdict.  The  Court  is  not  debarred  by  its 
want  of  jurisdiction  in  criminal  causes  from  entertaining  actions  or  con- 
sidering defences  founded  upon  criminal  acts  where  these  have  resulted  in 
.civil  or  patrimonial  loss,  but  it  cannot  set  aside  a  decree  of  a  criminal 
Court  should  such  be  founded  on  in  the  civil  suit. 

(2)  Spiritual  or  Ecclesiastical  Causes. — Sentences  and  proceedings  of 
Church  Courts  cannot  be  reviewed  by  the  Court  of  Session,  unless  the 
Church  Court  has  acted  maliciously  or  outwith  its  jurisdiction,  and  even 
then  the  Court  will  not  interfere  unless  some  civil  right  has  been  invaded. 
The  Court  has  an  express  statutory  jurisdiction  in  causes  relating  to  teinds, 
disjunction  and  erection  of  parishes,  ecclesiastical  buildings,  etc.,  in  con- 
nection with  the  Established  Chujch.     See  Church  Courts. 


SESSIONS  OF  THE  PEACE  295 

(3)  Causes  of  Small  Value. — ^Vbere  the  value  of  a  cause  is  not  more 
than  £25,  it  cannot  come  into  tlie  Court  of  Session  (50  Geo.  iii.  c.  112,  s.  28, 
and  16  &  17  Yict.  c.  80,  s.  22).  There  is  an  exception  to  this  rule  in 
appeals  in  a  few  cases  under  sec.  9  of  the  Sheriff  Courts  Act,  1877.  The 
value  of  the  cause  is  determined  by  the  conclusions  of  the  summons  or 
other  initial  writ.  Where  the  decree  asked  for  is  ad  factum  jyrcstandum,  the 
value  of  the  cause  is  not  measured  pecuniarily,  and  therefore  the  £25  limit 
is  inapplicable.  See  Appeal  to  Coukt  of  Session  fro:m  Sheriff  Court. 
Even  in  causes  of  less  value  than  £25  the  Court  of  Session  has  jurisdiction 
where  the  jurisdiction  of  the  Sheriff  is  excluded,  e.g.  in  the  case  of  a  foreign 
defender  (Broun,  1852,  2-4  Sc.  Jur.  646 ;  Maclcth,  1873,  11  M.  404). 

(4)  Claims  to  Peerages. — Such  claims  must  be  determined  by  the  House 
of  Lords. 

(5)  Summary  Bcmovals  under  the  Sheriff  Courts  Act,  1838,  s.  8. 

(6)  Under  certain  special  statutes  expressly  excluding  jurisdiction 
(Mackay,  Manual,  121). 

B.  OitiGiNAL  BUT  NOT  APPELLATE. — Jurisdiction  is  excluded  in — 

(1)  Service  of  Heirs. — Original  jurisdiction  lies  with  the  Sheriff  of  the 
county  in  which  the  lands  are  situated,  or  with  the  Sheriff  of  Cliancery,  but 
the  judgment  of  the  Sheriff  may  be  appealed  to  the  Court  of  Session  (31  & 
32  Yict.  c.  101,  ss.  27-30,  41,  42).     See  Service  of  Heirs  ;  Chancery. 

(2)  Questions  of  Heraldry. — The  Lyon  King  has  exclusive  jurisdiction 
in  the  first  instance  in  proper  questions  of  heraldry,  as  in  competitions 
between  claimants  of  particular  arms,  admission  of  messengers-at-arms,  etc. 
(Acts  1587,  c.  46 ;  1592,  c.  127  ;  and  30  Vict.  c.  17).  The  Court  of  Session 
can  review  the  judgments  by  way  of  appeal  and  reduction  {Cunningliamc, 
1849,  11  D.  1139;  Macdonald,  1^2(^,  4  S.  374;  Lindsay,  1724,  M.  8889). 
See  Lyon  KI^■G  of  Ak.ms. 

(3)  Actions  of  Removing  under  the  Sheriff  Court  Act,  1853,  s.  29, 
and  A.  of  S.,  14th  December  1756,  must  be  brought  in  the  Sheriff  Court, 
but  may  come  into  the  Court  of  Session  by  way  of  suspension  or  reduction. 
In  summary  removings  under  the  Sheriff  Courts  Act,  1838  (1  &  2  Vict. 
c.  119,  s.  8),  the  decree  of  the  Sheriff  is  final. 

(4)  Certain  statutes  ordain  that  proceedings  brought  under  their  pro- 
visions in  the  Sheriff  Court  may  be  afterwards  reviewed  by  the  Court 
of  Session,  e.g.  The  Employers'  Liability  Act,  1880,  and  AVorknien's 
Compensation  Act,  1897. 

Appeal  from  the  Court  of  Session. — See  Appeal  to  House  of  Lopds. 

Acts  of  Sederunt. — The  judges  of  the  Court  of  Session  have  power  to 
make  rules  of  procedure  for  the  conduct  of  causes,  which  have  the  force  of 
statutes.  At  one  time  this  i)ower  was  occasionally  exceeded,  and  matters 
of  law  were  dealt  with  ;  but  the  Court  for  many  years  has  not  exceeded  its 
proper  functions.     See  Act  of  Sedeuunt. 

[Stair,  \ik.  iv.  tit.  1 ;  Eisk.  bk.  i.  tit.  3  ;  Lankt.  ii.  508  ;  Shand,  rracticc,\. ; 
Mackay,  Practice,  i.  1,  }J<i.mi.al,  1.] 

Sessions  of  the  Peace. — Sessions  of  the  Peace  is  the  name 
applied  Lo  the  Cuurt  held  by  the  Justices  of  the  Peace  for  a  county.  It  is 
not  a  Court  "wherein  writs  arc  usually  registered,"  and  would  not,  therefore, 
fall  under  the  definition  of  the  term  Court  of  Record  as  used  by  Stair  (ii.  3. 
€3).  It  is,  however,  a  Court  of  Kecord  in  so  far  as  the  procedure  of  the 
Court  is  regularly  entered  in  a  sedcrunt-book  by  tlie  clerk,  and  autlienti- 
cated  by  the  subscription  of  the  presiding  justice  ;  proofs  are  generally  taken 
in  writing ;  extract  judgments  arc  given  out ;  and  all  processes  arc  preserved. 


296  SET-OFF 

That  the  character  of  the  Justices'  Court  in  Scotland  might  not  be  affected 
at  the  Union,  it  was  provided  by  6  Anne,  c.  6,  that  in  the  Sessions  of  the 
Peace  the  methods  of  trial  and  judgment  shall  be  according  to  the  laws 
and  customs  of  Scotland. 

The  Quarter  Sessions  is  the  meeting  of  the  Justices  of  the  Peace  for  a 
whole  county.  Extensive  counties  were  usually  divided  into  districts,  for 
the  more  frequent  meeting  and  speedy  administration  of  justice.  Such 
division  is  nov/  required  by  the  Licensing  and  Small  Debt  Acts.  The 
times  of  their  meeting  are  prescribed  by  statute  (1661,  c.  38,  s.  3).  "The 
Justices  of  Peace  in  each  shire  shall  meet  and  convene  together  four  times 
in  each  year,  on  the  first  Tuesday  in  May,  on  the  first  Tuesday  in  August, 
on  the  last  Tuesday  in  October,  and  on  the  first  Tuesday  in  March,  with 
power  to  continue  the  said  sessions,  or  to  adjourn  the  same  to  such  days  as 
shall  be  most  convenient."  The  custom  is  to  meet  on  the  day  specified,  and 
if  it  be  for  a  special  reason  inconvenient,  to  appoint  a  day  certain  to  which 
to  adjourn.  If  no  quorum  attend  on  the  day  appointed,  the  Quarter  Sessions 
may  be  held  on  any  other  day  during  that  quarter  of  the  year.  The  Quarter 
Sessions  are  held  at  the  head  burgh  of  the  county,  even  when  it  is  an 
incorporation  having  its  own  justices.  The  Court  is  called  by  the  clerk ; 
formerly,  on  important  occasions,  intimations  used  to  be  issued  by  a  pro- 
minent justice — for  instance,  the  Lord  Advocate  was  in  use  to  summon 
the  justices  for  the  county  of  Edinburgh. 

Besides  the  regular  district  meetings,  justices  with  us  have  always  been 
in  the  practice  of  holding  Courts  at  any  time,  though  not  by  way  of 
adjournment  of  the  Quarter  Sessions.  They  may  sit  at  all  times,  except 
Sundays,  in  matters  which  concern  the  public  peace. 

The  Act  1617,  c.  8,  s.  20,  enacts  that  three  justices  shall  be  a  full 
number  and  session  to  decide  in  matters  betwixt  the  four  Quarter  Sessions, 
but  the  Commission  expressly  assign  to  two  or  more  of  the  justices  the 
powers  committed.  That  number  was  held  sufficient  in  Beicl  v.  Finlayson 
(1730,  Diet.  Decis.  tit.  "Jurisdiction").  One  Justice  of  Peace  cannot  act 
judicially. 

At  the  first  meeting  of  the  Sessions  after  a  new  Commission  arrives  in 
the  county,  it  is  read  in  Court.  Each  meeting  elects  its  own  chairman, 
who  has  no  casting  vote.  The  procurator-fiscal  prosecutes  or  gives  his 
concurrence  to  prosecution  by  a  private  paity. 

The  Quarter  Sessions  have  the  power  of  reviewing  the  judgments  of  the 
justices  in  Petty  Sessions.  More  than  the  necessary  quorum  of  two  are 
therefore  usual  in  Quarter  Sessions  for  the  hearing  of  ai)peals,  and  in  some 
counties  a  practice  exists  of  requiring  more  than  a  specified  number  to  be 
present.  An  equality  of  votes  may  be  got  over  by  one  justice  withdrawing 
or  another  justice  being  brought  in.  Where  the  equality  arises  on  an 
appeal,  the  judgment  appealed  against  ought  to  be  affirraed,  or  preferably 
the  cause  should  stand  adjourned  for  a  further  hearing  at  a  future  meeting, 
or  by  a  bench  composed  of  different  justices.  Justices  in  Quarter  Sessions, 
on  appeal,  must  rehear  the  evidence  led  before  the  justices  in  Petty  Sessions. 
Should  the  Quarter  Sessions  refuse,  their  judgment  is  liable  to  suspension 
{Muchcrsie,  11  Dec.  1874,  3  Coup.  54). 

See  Justice  of  Peace,  and  authorities  there  quoted. 

Set-off  .—See  Compensation. 

Settlement — This  term  denotes  the  relation  which  a  pauper  has  to 
the  particular  parish  which  is  bound  to  relieve  the  rest  of  the  community 


SETTLEMENT  297 

of  the  burden  of  supporting  him.  The  poor  entitled  to  relief  are  by  law 
charo-eable  only  on  the  parish  in  which  they  have  a  settlement,  and  this 
depends  on  residence,  parentage,  birth,  or  marriage  (Bell,  Prin.  s.  2195). 

History. — The  first  statutory  enactment  with  regard  to  the  particular 
parish  liable  for  the  support  of  the  indigent  poor  was  the  Act  1535,  c.  22, 
which  ordained  that  "  na  beggars  be  thoiled  to  beg  in  ane  parocliin  that  ar 
born  in  ane  uther  ;  and  that  the  headsman  of  ilk  parochin  make  takinnes, 
and  give  to  the  beggars  thereof,  and  that  they  be  susteined  within  the 
bounds  of  that  parochin  ;  and  that  nane  uthers  be  served  with  almous 
within   the  bounds  of  that  parochin  but  they  that  bearis   that   takinne 
allanerlie."     It  will  be  observed  that  this  early  enactment,  which  initiated 
the  law  of  settlement,  instituted  a  settlement  by  birth  merely,  and  took  no 
account  of  those  paupers  who  in  early  life  had  left  the  parish  of  birth,  and 
made  their  permanent  home  elsewhere.     This  omission  was  remedied  by 
the  Act  1579,  c.  74,  which,  in  addition  to  repeating  tbe  enactment  quoted 
above,  that  "  na  beggars  be  thoiled  to  beg  in  ane  parochin  that  ar  born  in 
ane  uther,"  directs  all  "  pure  people  to  repayre  to  the  parochin  quhair  they 
were  borne,  or  had  their  maist  common  resorte  or  residence  the  last  seven 
years  by  past,  and  there  settil  themselves."     The  Act  goes  on  to  provide  for 
an  inquisition  of  the  poor  being  taken :  "  The  provost  and  bailies  in  burrowes 
or  townes,  and  the  saidis  judges  in  the  parochines  to  landwart,  sail  give  ane 
testimonial  to  sik  pure  folk  as  they  find  not  borne  in  their  awin  parochin, 
or  making  residence  therein  the  last  seven  zeiris,  sending  them  or  directing 
them  to  the  next  parochin,  and  so  fra  parochin  to  parochin  quhill  they  be 
at  the  place  quhair  they  were  borne,  or  had  their  most  common  resorte  or 
residence  during  the  last  seven  zeiris  preceding."     The  settlements  intro- 
duced by  these  two  Acts  were  only  two,  namely,  the  parish  of  birth  and 
the  parish  where  the  beggar  had  his  most  common  resort  for  seven  years, 
but,  as  the  principle  of  not  separating  members  of  the  same  family  was 
early  recognised  in  the  administration  of  the  law  of  settlement,  and  with  a 
view  of  overcoming  tlie  statutory  difficulty,  the  legal  fiction  of  what  is  called 
a  "derivative  settlement"  was  introduced,    whereby  the  wife   takes  her 
husband's  settlement,  and  the  children  their  father's.    By  the  Act  1G72,  c.  18, 
the  duration  of  residence  necessary  to  acquire  a  settlement  was  reduced 
to  three  years,  at  which  it  remained  till  1845,  when,  by  the  Boor  Law 
(Scotlan<l)  Act,  1845  (8  &  9  Vict.  c.  83),  the  period  of  residence  was  increased 
to  five  years,  being  again  reduced  to  three  years  in  1898  by  the  Boor  Law 
(Scotland)  Act,  1898  (61  &  62  Vict.  c.  21),  to  be  noticed  infra. 

The  subject  can  be  most   conveniently   treated    under   the   fullownig 

heads : — 

L  Settlement  by  Birth. 
IL  Settlement  by  Barentage. 
{a)  Legitimate  Children. 
(h)  Illegitimate  Children, 
(c)  Forisfamiliation. 

III.  Settlement  by  Marriage. 

IV.  Settlement  by  Ilcsidencc. 

V.  Settlement  of  I'auper  Lunatics. 

I.    SETTLEMENT   UY    BlRTII. 

The  settlement  by  birth  is  tlie  settlement  which  a  person  has  by  the 
fact  of  his  birth  in  a  parish,  and,  failing  other  grounds  of  settlement,  a 
pauper  is  entitled  to  relief  from  such  parish.  This  settlement;  can  never 
be  extinguished,  though  it  may  be  suspended  during  the  subsistence  of  a 


298  SETTLEMENT 

derivative  settlement,  such  as  by  parentage  or  marriage,  or  a  residential 
settlement.  If  such  settlement  be  lost,  the  birth  settlement  at  once  revives. 
As  the  birth  settlement  of  every  child  is  in  the  parish  in  which  such  child 
is  born,  it  is  of  no  consequence  that  the  presence  of  the  mother  in  such 
parish  at  the  time  of  the  child's  birth  was  merely  casual,  e.g.  with  a  view  to 
being  delivered  outwith  the  knowledge  of  her  friends  {Craig,  1867,  39 
Sc.  Jur.  390;  McDonald,  1863,  9  P.  L.  M.  348).  This  was  held  even 
in  the  case  of  a  child  of  a  pauper  who  was  born  in  the  poorhouse 
of  the  parish  to  which  his  mother  was  chargeable,  and  which  was  situated 
in  another  parish  {Russell,  1881,  8  E.  440).  The  law  thus  does  not  recognise 
a  constructive  birth  settlement.  As  regards  the  mode  of  proof,  declarations 
made  by  the  parents  are  admissible  {Hay,  1854,  16  D.  364);  but  in  one 
case  it  was  held  insufficient  to  prove  birth  where  the  sole  proof  adduced 
was  that  of  the  pauper,  aged  sixty-nine,  and  of  his  sister,  who  deponed 
that  their  mother,  now  deceased,  had  frequently  told  them  that  the  jjauper 
was  born  in  the  defending  parish  {Wallace,  1891,  19  E.  233).  Parents  are 
competent  witnesses,  and  registers  of  birth  and  baptism  and  entries  in 
family  Bibles  can  competently  be  adduced  as  adminicles  of  evidence.  An 
infant  found  exposed  is  presumed  to  have  been  born  in  the  parish  where  it 
is  found  so  exposed,  and  the  onus  is  on  that  parish  to  show  that  it  was  not 
born  there  {Thomson,  17  Nov.  1808,  F.  C;  Wilson,  1860,  2  P.  L.  M.  633, 
per  Ld.  Neaves). 

II  Settlement  by  Parentage. 

{a)  Legitimate  Children. — Legitimate  children  during  nonage  are  to  be 
considered  as  so  far  identified  with  their  father  that  it  is  to  his  place  of 
settlement,  however  constituted,  that  they  are  to  look  for  relief,  when  they  are 
so  circumstanced  as  to  be  entitled  to  relief  at  all  (per  Ld.  Chan.  Cranworth 
ill  Ada7nson,  1853, 1  Macq.  376).  The  decision  in  the  case  of  Adainso^i,  in&t 
cited,  proceeded  on  the  principle  that  the  family  should  be  kept  together ; 
and  in  delivering  his  judgment  the  Lord  Chancellor  (Cranworth)  quoted 
with  approval  the  opinion  of  Ld.  Jeffrey  in  the  case  of  Hume,  1849,  12  D. 
411,  to  the  following  effect:  "The  branches  are  held  to  be  where  the  root 
is  ;  though  they  may  overhang  and  drop  into  other  parishes,  the  true  parish 
is  that  where  the  root  is."  A  pupil  child,  therefore,  follows  the  settlement  of 
its  father,  whether  that  settlement  has  been  acquired  by  birth  or  by  residence. 
The  onus  is  on  the  relieving  parish  to  prove  the  father's  parish  of  settlement ; 
and  so  in  the  case  of  relief  being  granted  to  the  pupil  child  of  a  Scotchman, 
the  relieving  parish  were  not  entitled  to  recover  advances  made  to  the 
child  against  the  parish  of  the  child's  birth  although  they  were  unable  to 
prove  the  parish  of  the  father's  birth  {HojjJcins,  1805,  3  M.  424).  i^fter 
the  father's  death,  pupil  children  follow  the  settlement  of  their  mother. 
The  mother,  being  bound  to  aliment  her  children,  is  the  pauper,  and  if  she 
falls  into  poverty  the  parish  of  her  settlement  is  bound  to  support  both 
her  and  her  dependants.  Pupil  children  whose  father,  a  foreigner,  had  not 
acquired  a  settlement  by  residence,  and  had  deserted  liis  wife,  were  held  to 
follow  their  mother's  settlement  {Gihso7i,  1854, 16  D.  926).  An  Enghshman 
married  in  Scotland  and  lived  there  for  some  time,  but  before  he  had  ac- 
quired a  settlement  he  deserted  his  wife  and  child.  After  the  lapse  of  nearly 
three  years  the  wife  fell  ill,  and  for  a  few  days  before  her  death  was  in 
receipt  of  parochial  relief.  It  was  held,  in  conformity  with  the  opinion  of 
the  majority  of  the  whole  Court,  that  the  chdd  who  was  still  a  pupil,  fell  to  be 
supported  by  the  parish  not  of  its  own  but  of  its  mother's  birth  {Carmichael, 
1863,  1  M.  452).     The  following  important  statement  of  the  law  was  made 


SETTLEMENT  299 

by  Lcls.  Benholme  and  Kinloch :  "  The  question  is  whether,  the  mother 
having  died,  the  primary  settlement  of  the  child  is  the  same  derivative 
settlement  of  the  mother's  birthplace,  on  which,  if  she  had  been  in  life, 
his  support  would  unquestionably  have  been  thrown.  "\Ve  are  of  opinion  it 
must  be  so  held.  We  think  the  question  is  answered  by  the  analogy 
between  the  death  and  desertion  of  the  husband  alluded  to.  "When  a 
husband  dies,  leaving  a  wife  and  pupil  children  liviug  in  poverty  with  her, 
we  consider  it  to  follow  from  the  authorities  that  the  settlement  of  the 
mother,  when  coming  into  operation  on  the  failure  of  the  father's  settle- 
ment, enures  to  the  children  so  as  to  form  their  own  proper  settlement. 
In  the  first  instance  the  settlement  derived  from  the  father  must  be  the 
settlement  of  both  mother  and  children.  But  if  this  settlement  fail  or  be 
lost,  and  the  mother  is  thrown  on  her  own  settlement,  we  conceive  that  this 
is  equally  the  settlement  of  her  pupil  children  after  her  death  as  before.  All 
the  principles  which  apply  in  the  case  of  the  father  appear  to  us  equally  to 
hold  in  that  of  the  mother.  She  is  now  the  head  of  the  house.  The 
children  are  part  of  her  family.  She  is  liable  to  support  them  out  of  her 
own  means  if  she  can.  "\Ye  can  see  no  ground  on  wdiich,  in  such  a  case, 
the  settlement  of  the  father  shall  be  held  to  have  become  inherent  in  the 
children  which  does  not  equally  apply  in  the  case  of  the  surviving  mother. 
If  the  surviving  mother  die,  we  think  the  primary  settlement  of  the  pupil 
children  left  by  her  is  the  settlement  derived  from  her  first,  as  in  the  case  of 
the  father."  A  mother,  after  the  father's  death,  can  acquire  a  residential 
settlement  which  enures  to  the  pupil  children  living  with  her  (Crieff,  1842, 
4.  D.  1538).  When  a  woman  marries  again,  she  loses  the  settlement 
of  her  first  husband  and  acquires  that  of  her  second  husband  for 
herself  alone;  and  in  the  event  of  supervening  poverty,  she  being 
the  pauper,  such  parish  nnist  relieve  her  and  her  pupil  children  {Grcig, 
1865,  3  M.  575).  The  rubric  in  Greig's  case  is  apt  to  mislead,  as  it  is 
stated  in  too  absolute  and  unqualified  terms  (per  Ld.  Mure  in  Bcaltie,  1878, 
5  It.  737).  It  is  as  follows: — The  widow  of  a  man,  who  had  a  settle- 
ment in  Scotland  at  the  time  of  his  death,  having  married  again,  became 
chargeable,  on  the  desertion  of  her  second  husband,  along  with  the  pupil 
children  of  her  former  marriage.  Held  that  by  her  second  marriage  the 
woman  had  lost  the  settlement  of  her  first  husband,  and  acquired  that  of 
her  second  Imsband  not  only  for  herself  but  also  for  the  pupil  children  of 
her  previous  marriage,  and  that  the  parish  of  her  second  husband's  settle- 
ment was  the  parish  liable.  This  rubric  is  not  warranted  by  the  judgment 
or  by  the  opinions  of  the  learned  judges.  The  mother  did  not  acquire  the 
settlement  fur  her  pupil  cliildrcn,  but  she  ]>eing  th.c  pauper,  the  ])arish  of 
her  settlement  was  bound  to  relieve  both  her  and  her  ])Upil  children  (per 
Ld.  Kinncar  in  Muir,  1888,  V.  L.  M.  for  1889,  13-4;  Bcattie,  supra, 
cit.;  per  Ld.  Moncreilf  in  CamphcU,  1894,  P.  L.  M.  for  1894,  416; 
per  Ld.  Adam  in  Shoits  Parish  Council,  1890,  24  11.  109).  A  pupil  cannot 
acquire  or  lo.se  a  settlement  during  pupilarity.  On  reaching  puberty,  i.e. 
twelve  years  of  age  in  the  case  of  a  boy,  and  fourteen  in  the  case  of  a  girl, 
he  will,  if  forisfamiliated  (see  Forisfamiliation,  infra),  take  the  settlement 
of  liis  fatlier,  if  it  be  resiilcntial ;  but  if  his  fatlicr  has  not  at  the  time  a 
residential  settlement,  then  the  child  will  take  his  own  birth  settlement 
iCrai'i,  1803,  1  i\I.  1172;  St.  CuthhcrCs,  1873,  1  If.  174;  Simpson,  1883,  10 
Pt.  928 ;  Allan,  1804,  3  M.  309). 

(0)  Illrgitimatc  Children. — An  illegitimate  ])ui)il  child  takes  the  settle- 
ment of  its  mother  liowever  acquired,  whether  by  birth,  residence,  or  marriage 
{Ilay,  1850,  18  D.  510).    In  that  case  the  Lord  Tresident  (M'Neill)  observed : 


300  SETTLEMENT 

"In  the  case  of  illegitimate  children,  they  follow  the  settlement  of  the 
mother,  and  that  is  admitted  at  all  hands  to  be  the  rule  applicable  to  cases 
where  the  settlement  of  the  mother  happens  to  be  her  birth  settlement, 
and  in  cases  where   the   settlement   of   the   mother   happens   to   be   the 
settlement  acquired   by  residence.      But   it   is   disputed  that  the  rule  is 
applicable  to  cases  where  the  settlement  of  the  mother  is  what  is  called 
a  derivative  settlement.  .  .  .  We  have  nowhere  a  clear  definition  of  the 
expression  '  derivative  settlement.'  .  .  .  The  general  meaning  of  it  is,  that 
it  is  a  settlement  which  the  party  derives,  not  by  his  own  birth  or  residence, 
but  through  another.    Such  a  settlement  may  be  acquired  through  parentage, 
and  in  the  case  of  a  female,  through  marriage  .  .  .  The  general  question 
is :  '  Whether  a  settlement  so  detained  is  an  exception  to  the  general  rule, 
or  whether  it  is  not  ? '     The  opinion  which  I  have  formed  upon  that  point 
is,  that  a  settlement  so  acquired  is  not  an  exception  to  the  general  rule. 
I  think  that  the  rule  that  the  mother's  settlement  regulates  the  settlement 
of  the  illegitimate  child  apphes  to  this  case  as  well  as  to  others,  and  I  do 
not  see  any  principle  of  any  strength,  or  any  ground  for  holding  that,  when 
her  settlement  appears  to  be  derived  through  marriage,  and  to  be  in  a 
parish  different  from  that  of  her  own  birth,  and  from  that  of  her  child's 
birth,  it  is  to  form  any  exception.     When  she  has  acquired  a  settlement, 
it  becomes  hers  to  the  exclusion  of  all  others,  so  long  as  it  lasts.     It  may 
be  a  settlement  defeasible,  so  to   speak,  like   any  other  settlement— by 
reason  of  residence,  for  example.     But  the  law  of  settlement  through  the 
mother  being  the  rule  is  not  altered  in  any  way ;  and  the  circumstance  that 
her  settlement  by  marriage  might  cease  by  a  subsequent  marriage,  or  by 
her  acquiring  a  settlement  elsewhere,  is  not  a  pressing  consideration,  for 
settlement  by  residence  might  cease  in  a  similar  manner."      When  the 
mother  of  an  illegitimate   child   acquires   an   industrial   settlement,  that 
settlement  is  the  settlement  of  the  child,  and  will  continue  to  be  so  after 
the  child  has  attained  puberty  until  it  is  lost  by  non-residence,  under  sec. 
76  of  the  Poor  Law  (Scotland)  Act,  1845  (8  &  9  Vict.  c.  83). 

(c)  Forisfamiliation. — "  Forisfamiliation,"  or,  as  it  is  called  in  England, 
"  Emancipation,"  is  the  act  by  which  a  child  ceases  to  be  a  member  of  his 
father's  family,  and  takes  iip  an  independent  position  for  himself.  On 
reaching  puberty  (twelve  years  of  age  in  the  case  of  a  boy,  and  fourteen  in 
the  case  of  a  girl)  a  child  is  capable  of  Ijeing  "  forisfamiliated  " ;  but  the 
mere  fact  of  reaching  puberty,  in  the  case  of  a  child  whose  father  is  alive, 
does  not  of  itself  operate  forisfamiliation,  and  whether  a  minorhas  become 
forisfamiliated  is  a  question  of  fact  in  each  individual  case,  involving  in 
many  cases  points  of  consideral)le  delicacy  and  nicety.  In  a  recent  case 
{Eljin  Parochial  Board,  1893,20  E.  763),  Ld.  Trayner  observed:  "There 
arc  three  conditions  always  material  in  considering  the  question  of  foris- 
familiation. 1st,  Is  the  person  in  minority  ?  2nd,  Has  he  ceased  to  reside 
in  his  father's  house  ?  3rd,  Has  he  been  supporting  himself  ?  _  I  c|°  '^^^ 
say  that  all  these  things  must  concur  in  order  to  prove  forisfamiliation,  or 
that  any  one  of  them  is  absolutely  essential,  but  they  are  all  considerations 
which,  if  affirmed,  would  lead  to  the  view  that  the  child  has  been  foris- 
familiated." In  the  case  of  persons  of  weak  mind,  either  incapable  of 
earning  anything  or  capable  of  earning  very  little,  even  though  they  have 
reached  majority,  the  Court  has  by  a  series  of  decisions  held  such  persons 
to  be  non-'forisfamiliated  {Frascr,  1867,  5  M.  819;  Lccs,  1891,  19  R  6; 
Machay,  19  E.  396).  Where,  however,  a  pauper  of  weak  mind  has  not  been 
certified  as  a  lunatic,  and  where  it  is  not  proved  that  she  is,  in  point  of 
fact,  a  dangerous  lunatic,  or  an  absolute  idiot,  the  Court  will  not  inqmre 


SETTLEMENT  301 

too  closely  into  the  precise  degree  of  imbecility,  but  if  she  is  proved  to 
possess  a  certain  amount  of  intelligence  and  power  of  work,  though  under 
supervision,  the  Court  will,  as  a  general  rule,  hold  that  she  is  not  in  such  a 
mental  condition  as  to  be  incapable  of  having  a  settlement  of  her  own 
{Edmiston,  1895,  P.  L.  M.  1896,  75).  A  pupil  whose  father  dies  during 
his  pupilaritv  becomes  ipso  facto  forisfamiliated  on  reaching  puberty  {Craig, 
1863,  1  M.  1172). 

III.  Settlement  by  Mareiage. 

A  woman,  on  marriage,  loses  any  settlement  she  may  hitherto  have  had, 
and  has  no  settlement  except  that  of  her  husband.  It  was  long  a  subject 
of  controversy  whether  the  wife  by  the  mere  fact  of  marriage  did  not  only 
lose  her  maiden  settlement,  but  acquire  a  new  settlement  for  herself  {Hay, 
1870,  12  D.  1019).  But  it  is  now  settled  law  that  the  effect  of  marriage  is 
not  to  create  a  new  settlement  for  the  wife,  but  merely  to  extinguish  the 
old  one,  on  the  princii:)le  that  by  marriage  the  wife's  person  is  merged  in 
that  of  her  husband's,  and  that  in  the  event  of  supervening  poverty  it  is 
not  she  that  is  the  pauper,  it  is  her  husband,  on  whom  constructively  she 
forms  a  burden  (per  Ld.  Kinloch  in  Kirhicood,  1871,  9  M.  093).  A  woman, 
therefore,  born  in  Scotland  who  marries  a  foreigner  who  has  no  settlement 
in  this  country,  and  who  is  still  alive  and  not  in  desertion,  is  in  the  position 
of  having  no  settlement.  "  A  married  woman  is  in  law  incapable  stante 
matrimonio  to  have  any  settlement  in  her  own  right,  or  independently  of 
her  husband.  If  her  husband  has  a  settlement,  that  also  is  her  settlement. 
If  her  husband  has  no  settlement,  just  as  little  has  she  "  (per  Ld.  Pres.  Inglis 
in  M'Crorie,  1862,  24  D.  72).  If,  however,  he  dies  or  deserts  her,  her  own 
settlement  revives ;  and  if  before  marriage  she  had  a  residential  settlement, 
she  will  take  that  settlement  rather  than  her  own  birth  settlement  {Ecid, 
1890,  18  E.  25).  If  she  was  not  in  possession  of  a  residential  settlement 
before  marriage,  she  becomes  chargeable  to  her  own  birth  settlement  {Gibson, 
1854,  16  D.  926).  On  licr  husband's  death  a  widow  takes  the  settlement 
which  belonged  to  her  husband,  whether  by  birth  or  residence  {Hay,  1854, 
16  D.  994).  This  settlement,  however,  may  be  lost  by  the  widow.  If  the 
settlement  of  the  husband  at  the  time  of  his  death  was  a  birth  settlement, 
and  the  widow,  by  residence,  acquires  a  residential  settlement,  she  loses  the 
derivative  birth  settlement  of  her  husband ;  and  in  the  event  of  her  sub- 
sequently losing,  by  absence,  such  residential  settlement,  the  derivative  birtli 
settlement  of  her  husband  does  not  revive,  but  she  becomes  chargeable  to 
the  parish  of  her  birtli  {Hay,  1860,  22  D.  872).  If  the  settlement  wliich 
the  liusband  had  at  the  time  of  his  deatli  was  a  residential  settlement,  the 
widow  may  lose  sucli  settlement  by  absence  under  sec.  76  of  the  Poor  Law 
Act,  1845 ;  and  in  that  event  her  own  birth  settlement,  and  not  her  husband's, 
is  liable  to  maintain  her  {Hay,  supra).  This  is  even  the  case  when  the 
absence  from  the  ])arish  was  commenced  before  the  husband's  death.  "The 
parish  is  entitled  to  take  up  this  position :  You  left  us  more  than  four  years 
ago,  and  we  have  never  heard  of  you  since.  You  have  not  kept  up  your 
connection  with  us,  and  we  are  no  longer  responsible  for  you"  (per  Ld. 
J.-Cl.  Inglis  in  Allan,  1864,  3  M.  309).  If  a  widow  marries  again,  she  loses 
the  settlement  she  derived  from  her  first  husband,  even  if  her  second  husl)and 
has  no  settlement  of  his  own  {Kirkivood,  1871,  9  M.  693).  The  desertion 
of  a  husband  is  equivalent  to  liis  death,  and  the  settlement  of  a  deserted 
wife  is  her  husband's  settlement  at  the  date  of  desertion  {Grciy,  1876,  3  P. 
642).  If  at  the  time  of  his  desertion  he  has  no  settlement  in  Scotland,  the 
wife  becomes  chargeable  to  her  own  birth  settlement.     The  desertion  only 


302  SETTLEMENT 

remains  equivalent  to  death  so  long  as  the  desertion  lasts.  The  deserting 
husband  may  return,  and  then  a  new  rule  may  come  in  to  fix  the  parish 
which  is  bound  to  maintain  him  or  his  wife  and  family.  He  _  may  revive 
a  settlement  which,  during  his  desertion,  cannot  be  gone  against  for  the 
support  of  the  wife  and  family,  or  he  may  put  an  end  to  a  settlement  which 
has  enured  to  the  wife  and  family  (per  Ld.  Pres.  Inglis  in  Greig,  supra). 

IV.  Settlement  by  Kesidence. 

This  is  now  regulated  by  sec.  1  of  the  Poor  Law  (Scotland)  Act  (61  &  62 
Vict  c.  21),  which  enacts  that  "no  person  shall  be  held  to  have  acquired  a 
settlement  in  any  parish  in  Scotland  by  residence  therein  unless  such  person 
shall,  cither  before  or  after,  or  partly  before  and  partly  after,  the  commence- 
ment of  this  Act  have  resided  for  three  years  continuously  in  such  parish, 
and  shall  have  maintained  himself  without  having  recourse  to  common  begging, 
either  by  himself  or  his  family,  and  without  having  received  or  applied  for 
parochial  relief ;  and  no  person  who  shall  have  acquired  a  settlement  by 
residence  in  any  such  parish  shall  be  held  to  have  retained  such  settlement 
if,  during  any  subsequent  period  of  four  years,  he  shall  not  have  resided  in 
such  parish  continuously  for  at  least  one  year  and  a  day :  Provided  always 
that  nothing  herein  contained  shall,  until  the  expiration  of  four  years  from 
the  commencement  of  this  Act,  be  held  to  affect  any  persons  who,  at  the 
commencement  of  this  Act,  are  chargeable  to  any  parish  in  Scotland."  This 
enactment  takes  the  place  of  sec.  76  of  the  Poor  Law(Scotland)  Act,  1845  (8  &  9 
Vict.  c.  83).  By  that  section  the  duration  of  residence  necessary  to  acquire 
a  settlement  was  five  years,  and  such  settlement  was  lost  to  the  person  who 
had  acquired  it  if,  during  any  subsequent  period  of  five  years,  he  had  not 
resided  continuously  in  the  parish  for  at  least  one  year.  It  is  not  clear 
what  is  meant  by  the  proviso  at  the  end  of  sec.  1  of  the  new  Act.  It  is 
probably  meant  to  prevent  a  pauper,  who  at  the  passing  of  the  Act  was 
receiving  relief  from  a  settlement  acquired  by  five  years'  residence  or 
by  birth,  changing  to  a  settlement  previously  acquired  by  three  years' 
residence. 

In  order  to  acquire  a  settlement  in  a  parish,  the  first  requisite  is  that 
the  person  must  have  resided  in  the  parish  for  three  years  continuously. 
For  a  considerable  period  after  the  passing  of  the  Poor  Law  Act,  1845,  the 
residence  necessary  to  acquire  a  settlement  required  to  be  personal,  and  the 
circumstance  that  a  person  had  a  house  in  a  parish  in  which  his  wifeand 
family  resided,  and  to  which  he  returned,  after  longer  or  shorter  periods, 
was  held  to  be  immaterial,  e.g.  a  man  who  rented  a  house  and  lived  with 
his  wife  and  family  for  eight  months  or  so  every  year,  being  absent  for  the 
remainder  of  the  year  as  a  groom  or  game-watcher  in  other  parishes,  was 
held  not  to  have  acquired  a  settlement  {Hcwat,  1866,  4  M.  1033).  It  is 
now,  however,  settled  law  by  a  series  of  decisions,  that  where  a  man  has  a 
house  in  one  parish,  where  his  wife  and  family  reside,  and  he  himself,  in  the 
pursuit  of  his  calling,  has  to  be  absent  from  that  parish  for  longer  or  shorter 
intervals,  the  parish  where  his  wife  and  family  reside  is  his  parish  of 
settlement.  The  criterion,  according  to  these  decisions,  is  whether  the  parish 
from  which  there  has  been  absence,  more  or  less  continued,  can  be  viewed 
as  the  place  of  the  pauper's  abiding  residence  or  home  with  which  the 
pauper  has  connected  himself,  and  to  which,  when  the  temporary  absence 
is  at  an  end,  he  might  naturally  be  expected  to  return  {Rutchison,  1858, 
20  D.  545).  The  doctrine  of  "  constructive  residence,"  beginning  with  the 
case  of  a  sailor  who,  if  it  were  held  he  had  not  a  residential  settlement  in 
the  place  where  his  wife  and  family  resided,  had  no  residential  settlement 


SETTLEMENT  303 

at  all  {Grcig,  1867,  5  M.  1132),  was  gradually  extended  till  the  late  Lord  Presi- 
dent (Inglis),  mIio  had  always  protested  against  the  theory  of  " constructive 
residence,"  said,  in  the  case  of  Bcattie,  1879,  6  E.  956,  that  the  Court  had 
decided  that  "  residence  does  not  necessarily  mean  actual  residence,  but  may 
mean  also  constructive  residence,"  and  when  the  case  arises  "  the  Court  will 
arrive  at  the  conclusion  that  the  residence  may  be  constructive  merely  for 
the  whole  five  years."  The  case  of  Nixon,  1884,  11  E.  945,  is  instructive  as 
showing  the  length  to  vvhich  the  theory  of  "  constructive  residence "  may 
go.  In  that  case  an  Irishman,  who  had  a  residential  settlement  in  the 
parish  of  Port-Glasgow,  went  abroad  in  1876,  leaving  his  wife  and  family 
in  a  house  in  Port-Glasgow.  He  intended,  on  his  departure,  to  remain 
abroad  for  two  years,  and  then,  if  successful,  to  bring  his  wife  and  family 
out  to  him;  if  unsuccessful,  to  return  home.  He  died  abroad  in  1882 
without  having  ever  returned  to  this  country,  and  his  wife  and  family 
became  chargeable  to  Greenock,  to  which  parish  they  had  removed  in  1879. 
Yet  it  was  held  that  his  settlement  in  Port-Glasgow  had  not  been  lost  by 
absence.  The  Lord  President  (Inglis)  in  that  case  said :  "  That  an  Irish 
emigrant  in  Australia,  who  had  been  earning  a  livelihood  there  for  six  years, 
and  has,  nevertheless,  been  all  the  time  residing  constructively  in  the  parish 
of  Port-Glasgow,  is  a  hard  saying,  but  it  is  the  logical  sequence  of  the 
judgments  of  the  Court."  The  nature  and  character  of  the  absence  and 
non-residence,  rather  than  its  mere  duration,  are  what  is  to  be  looked  to 
(per  Ld.  Gifford  in  Allan,  l^lo,  2  E.  463).  The  theory  of  "constructive 
residence "  applies  not  only  in  the  acquisition  of  a  residential  settlement, 
but  also  in  retaining  one  {Nixon,  siqyra).  The  theory  of  "constructive 
residence"  has  recently  been  carried  a  step  further  in  tlie  case  of  the 
Kilmarnock  Parish  Council,  1898,  P.  L.  M.  1899,  26,  where  it  was  held 
that  the  residence  of  a  wife  and  family  in  an  adjoining  parish  for  a 
temporary  purpose  for  a  short  period  interrupted  the  acquisition  by  the 
husband  of  a  residential  settlement  in  the  parish  where  he  was  pursuing 
his  industry,  and  in  which  his  wife  and  family  had  been  resident  with  him 
for  some  years  prior  to  their  going  to  the  adjoining  parish.  Involuntary 
absence,  such  as  that  of  a  soldier  on  foreign  service  (Mason,  1865,  3  M.  707), 
or  imprisonment  on  a  criminal  charge  (per  Ld.  Neaves  in  Beat  fie,  1  M.  434), 
do  not  operate  an  interruption  of  the  acquisition,  or  the  loss,  of  a  residential 
settlement.  Although  it  has  not  been  tlie  subject  of  judicial  decision,  it  is 
thought  that  a  person  can  acquire  a  residential  settlement  in  the  parish  of 
his  bu'th.  Where  a  person  applies  for  parochial  relief,  and  is  offered  the 
poorhouse,  which  he  declines,  it  has  been  held  that  such  application  breaks 
the  continuity  of  residence  necessary  to  acquire  a  residential  settlement 
(Govan  Comlination  Parish  Council,  1897,  P.  L.  M.  1897,  199).  The 
acquisition  of  a  settlement  by  industrial  residence  in  a  parisli  will  not 
be  interrupted  by  the  parish  being  combined  with  other  parislics  into  a 
new  parisli  by  an  Order  of  the  Secretary  for  Scotland  under  sec.  46  of  the 
Local  Government  (Scotland)  Act,  1894  (57  &  58  Vict.  c.  58),  but  the 
settlement,  when  acquired,  will  be  in  tlie  united  parish.  When  an  entire 
parish  is,  by  an  Order  of  the  Secretary  for  Scotland,  combined  with  other 
parishes  into  a  united  parisli,  an  industrial  settlement  acquired  in  it  prior 
to  the  Unification  Order  may  be  retained  by  the  statutory  residence  in  the 
united  parish  in  place  of  the  original  parish  {Edinlunjh  Parish  Council, 
1898,  25  E.  385). 

V.  Settlement  of  Pauper  Lunatics. 
By  sec.  75  of  the  Lunacy  (Scotland)  Act,  1857  (20  &  21  Vict.  c.  71),  it  is 


304  SETTLEMENT 

provided  that  every  lunatic  pauper  detained  in  a  district  asylum  shall  be 
deemed  and  held  to  belong  and  be  chargeable  to  the  parish  which  was  the 
parish  of  his  legal  settlement  at  the  time  the  order  for  his  reception  in  the 
asylum  was  granted,  his  residence  in  the  district  asylum  being  deemed  to 
be  the  residence  of  the  lunatic  in  the  parish  legally  chargeable  with  his 
maintenance.  By  sec.  95  (ib.)  it  is  provided  that  every  pauper  lunatic  shall 
be  sent  to  the  asylum  for  the  district  in  which  is  situated  the  parish  of 
his  settlement,  but  in  special  circumstances  the  Parish  Council,  with  the 
consent  of  the  Local  Government  Board,  may  dispense  with  this ;  and  it  has 
been  held  that  the  rule  laid  down  as  to  settlement  under  sec.  75  will  apply 
where  the  pauper,  instead  of  being  sent  to  a  district  asylum,  has  been  other- 
wise i^rovided  for  imder  sec.  95  (Palmer,  1871,  10  M.  185;  Far  qui  car  son, 
1894,  21  E.  583).  The  fact  of  an  able-bodied  man's  wife  or  child  being 
sent  to  a  lunatic  asylum  does  not  pauperise  him,  and  he  may  during  the 
confinement  of  his  wife  and  child  in  such  an  asylum  lose  or  acquire  'a 
settlement  {Palmer,  ih.;  Milne,  1879,  7  R.  317),  but  in  that  event  the 
parish  of  the  settlement  of  his  wife  or  child  remains  chargeable  during  the 
whole  period  of  the  lunacy.  A  lunatic,  though  not  a  pauper,  is  not  capable 
of  acquiring  a  settlement,  and  this  has  been  held  to  apply  to  the  case  of  a 
lunatic  not^'placed  in  an  asylum,  but  boarded  out  (Watt,  1857,  20  D.  342). 
It  has  been  held  that  a  lunatic  who  is  not  a  pauper  can,  by  absence,  even  in 
an  asylum  lose  a  settlement  (Crawford,  1862,  24  D.  357;  TJiomson,  1881, 
9  E.  37).  "  There  is  no  doubt  that  to  acquire  a  settlement  something  active 
is  required  on  the  part  of  the  pauper.  But  that  is  equally  required  in 
order  to  retain  a  settlement.  He  must  do  something  to  acquire  a  settle- 
ment  he  must  reside  within  the  parish ;  and  he  must  also  do  something  to 

•retain  a  settlement — that  is,  reside  within  the  parish,  but  for  a  different 
T3eriod ;  and  I  hold  that  the  kind  of  residence  required  in  either  case  is  the 
.■same,  and  it  is  a  residence  which  neither  an  idiot  nor  an  insane  person  can 
iiave  "  (per  Ld.  J.-Cl.  Inglis  in  Craicford,  ib.).  (See  Forisfamiiiation  supra.) 
See  Lunacy  Acts  ;  Poor  Law. 

Settlement.— See  Will. 

Sheep. — In  addition  to  the  rules  of  common  law  affecting  owners 
/of  moveable  property  generally,  owners  of  sheep  are  placed  under  certain 
liabilities,  and  are  entitled  to  certain  protection  by  statute.  By  sec.  123  of 
the  Eoads  and  Bridges  Act  of  1878  (which  see),  incorporating  sec.  103  of 
1  &  2  Will.  IV.  c.  43,  the  person  having  charge,  or  if  he  cannot  be  found, 
the  owner,  of  sheep  found  straying  or  pasturing  on  any  turnpike  road-is  liable 
•in  a  penalty  of  five  shillings  for  each  sheep.  By  the  Winter  Herding  Act 
(which  see)  certain  civil  liabilities  are  imposed  on  account  of  sheep  stray- 
ing on  to  private  lands.  On  the  other  hand,  by  the  Act  known  as  the 
Sheepworrying  Act  of  1863  (26  &  27  Vict.  c.  100),  the  pursuer  of  an  action 
of  damages  for  injury  done  to  liis  sheep  by  a  dog  does  not  require  to 
X-)rove  a  previous  j^ropensity  in  such  dog  to  injure  sheep  (see  Animals,  Lia- 
bility FOR  Damage  caused  by).  The  Dogs  Act,  1871,  34  &  35  Vict.  c.  56, 
also  contains  provisions  which  afford  sheep-owners,  among  others,  a 
•protection  against  dangerous  dogs.  Under  its  provisions  stray  dogs  may 
be  detained  or  sold  (s.  1) ;  dangerous  dogs  may  be  destroyed  under  warrant 
from  any  Court  of  summary  jurisdiction  (s.  2) ;  the  local  authority  may,  if 
danger  from  rabies  is  apprehended,  make  an  order  placing  restrictions  on 
.doers  being  at  large  (s.  3) ;  penalties  may  be  recovered  for  contravention  of 
;the  statute  (s.  4).    (See  also  Burgh  Police  Scotland  Act,  1892,  ss.  389,  390.) 


SHERIFF;  SHEEIFF  COURT  305 

Sheriff;  Sheriff  Court. 

Intkoductoky. 

With  the  rise  of  monarchy  in  Scotland,  the  Crown,  to  increase  and  pro- 
tect its  own  power,  found  it  necessary  to  curb  that  of  the  earls  and  barons 
and  other  local  dig;nitaries.  One  means  to  this  end  was  the  establishment  of 
the  Sherit'f,as  the  representative  within  the  county  of  the  power  of  the  Crown. 
As  much  as  possible  the  local  dignitaries  were  induced  to  accept  the  office,  the 
holding  of  which  made  them  the  administrators  and  representatives,  instead 
of  the  rivals  and  enemies,  of  the  royal  authority.  The  office  was  hereditary, 
the  Crown,  though  claiming  the  right  to  appoint  or  dismiss  the  Sheriff, 
not  being  sufficiently  powerful  to  make  good  its  title  to  do  so.  This  state  of 
matters  existed  until,  in  1748,  the  hereditary  Sheriff  as  a  judicial  function- 
ary was  finally  abolished,  and  the  Crown  effectively  asserted  its  complete 
control  over  tlie  office.  It  had,  however,  for  a  long  time  previously  been 
the  custom  to  divide  the  Sheriff's  duties  into  non-legal  and  legal,  the  former 
being  performed  by  the  hereditary  Sheriff,  who  appointed  a  Sheriff-Depute 
to  attend  to  the  latter,  or  judicial,  functions  of  the  post ;  though  this  right 
of  appointment,  even  in  comparatively  early  times,  was  subject  to  the 
approval  of  the  Court  of  Session  (1592,  c.  126).  By  the  Heritable  Juris- 
dictions Act  of  1748  the  Crown  took  from  the  hereditary  Sheriffs  all  their 
judicial  functions  and  conferred  them  on  the  Sheriffs-Depute,  whose  appoint- 
ment it  took  wholly  into  its  own  hands,  while  it  required  that  they  should 
have  a  legal  qualification  for  the  post,  viz.  that  they  should  be  advocates 
of  three  years'  standing  (20  Geo.  ii.  c.  43,  s.  29).  The  Deputes,  in  the  time 
of  the  hereditary  Sheriffs,  had  been  paid,  not  by  salary,  but  by  such  fees  as 
tliey  could  exact.  On  their  establishment  by  law  they  were  paid  salaries, 
but  only  on  the  footing  that  their  services  would  be  required  for  a  short 
portion  of  the  year,  and  they  were  allowed  to  retain  their  practice  at  the 
l)ar.  It  followed  that  they  hardly  ever  resided  in  their  sheriffdoms,  and 
this  it  was  that  caused  the  Sheriff-Substitute  to  rise  into  prominence.  This, 
official  had  existed  previously,  for  the  purpose  of  fdling  vacancies  caused 
by  the  temporary  al)sence  of  the  Deputes,  and  by  the  Act  of  1748  the  power 
of  appointing  him  was  transferred  from  the  hereditary  Sheriffs  to  the 
Deputes.  The  Sheriffs-Substitute  did  not  at  first  require  any  legal  qualifica- 
tion ;  their  duties  were  vague  and  their  salaries  nil.  Their  duties,  however, 
increased  and  became  more  definite  with  the  increasing  rarity  of  the 
Deputes'  appearances  in  the  sherilfdoms,  while  the  Deputes  gradually 
assumed  their  present  position  of  judges  of  appeal.  It  liecame  necessary 
that  the  Substitute  should  have  a  salary,  and  the  duty  of  ])aying  this,  at  first 
incumbent  on  tiie  Deputes,  was  taken  over  by  the  Crown  in  1787.  It  was 
thereafter  made  essential  to  his  being  appointed,  that  the  Sheriff-Substitute 
should  b3  eitlier  an  advocate  or  law  agent  of  not  less  than  five  years' 
standing  (G  Geo.  IV.  c.  2:5,  s.  9  ;  40  &  41  Vict.  c.  50,  s.  4).  He  was  deliarrcd 
from  following  any  other  emjJoyment  (1  &  2  Vict.  c.  1 19),  and  liis  office 
was  given  liim  for  life,  with  liability  to  removal  for  inability  or  misconduct 
(40  &  41  Vict.  c.  50,  8.  5).  Finally,  in  1877,  the  power  of  his  apjiointment 
was  taken  from  the  Sheriffs-Depute  or  Principal  (tlic  term  Deiuite  being  now 
oUsoletc,  9  Geo.  iv.  c.  29,  s.  22)  and  vested  in  the  Cruwn  (40&41  A'ict.  c.  50, 
8.  4) ;  and  the  offices  of  SheriiT-rrincipal  and  Sheriff-Substitute  thus  came 
to  be  established  on  their  ])rescnt  basis. 

In  the  counties  tlie  Sheriff  Courts  had  for  long  to  contend  with  tlie 
Courts  of  the  Regalities.  These  were  tlie  representatives  in  historic  times 
of  the  old  liarony  Courts  which  existed  for  the  various  districts  of  the 

S.  K — VOL.  -XT.  20 


306  SHEEIFF;  SHEKIFF  COUKT 

counties ;  and  which,  for  long  after  the  Sheriff  (who  at  first  was  generally 
himself  a  baron)  had  become  a  recognised  official,  continued  to  exercise  an 
equal  jurisdiction  with  him,  within  their  own  districts,  though  nominally  the 
Sheriff  judged  the  whole  county.  From  time  to  time,  as  regalities  lapsed  by 
disuse  or  forfeiture,  they  were  not  re-established  as  such,  but  were  merged 
in  the  sheriffdoms ;  but  it  was  not  till  1748  that  they,  in  common  with 
other  heritable  jurisdictions,  were  entirely  swept  away. 

In  the  towns  the  Burgh  Courts,  older  than  the  Sheriffs,  exercised  with 
them  a  concurrent  jurisdiction,  and  succeeded  in  resisting  their  encroach- 
ments to  a  still  later  period.  A  gradual  course  of  restricting  the  powers  of 
burghs  by  granting  to,  or  forcing  on  them,  charters  limiting  their  rights,  and 
a  continued  neglect  of  their  Courts  by  the  Legislature,  which,  at  the  same 
time,  devoted  its  energies  to  the  development  of  the  Courts  of  the  Sheriffs, 
ended,  but  not  till  the  present  century,  in  entirely  subordinating  the  Burgh 
Courts,  and  leaving  the  Sheriffs  masters  of  the  field. 

The  only  other  serious  rivals  of  the  Sheriff  Courts  were  the  Courts  of  the 
Bishops,  or  Commissary  Courts.  Confined  in  their  origin  to  matters  arising 
out  of  legitimacy,  birth,  marriage,  and  death,  they  arrogated  to  themselves 
in  time  a  much  wider  jurisdiction,  and  flourished  long  after  the  bishops 
themselves  had  ceased  to  be  recognised  by  the  State.  Although  by  Acts 
passed  in  1824  and  1830,  by  which  part  of  their  jurisdiction  was  transferred 
to  the  Court  of  Session  and  part  to  the  Sheriff  Court,  the  old  Commissary 
Courts  were  suppressed,  they  still  existed  in  theory;  and  it  was  not  till  1876 
that  they  were  finally  abolished,  and  their  whole  powers  and  jurisdictions 
transferred  to  the  Sheriff  Courts  (39  &  40  Vict.  c.  70,  s.  35). 

While  thus  prospering  at  the  expense  of  the  other  local  Courts,  the 
jurisdiction  of  the  Sheriff  Court,  both  criminal  and  civil,  has,  on  the  other 
hand,  been  much  encroached  on  by  the  Supreme  Court,  which,  beginning 
by  asserting  a  concurrent  jurisdiction,  ended  by  making  it  privative  to 
itself  in  some  of  its  most  important  points.  Thus  in  criminal  jurisdiction 
the  four  pleas  of  the  Crown,  once  competent  in  the  Sheriff  Court,  were 
confined  to  the  High  Court,  though  wilful  fire-raising  and  robbery  may  now 
again  be  tried  by  the  Sheriff  (Criminal  Procedure  Act,  1887,  s.  56);  while 
in  civil  matters  the  jurisdiction  of  the  Sheriff  in  heritable  causes,  never 
perhaps  exercised  to  any  great  extent,  was  for  long  entirely  taken  away, 
to  be  restored  to  a  very  limited  extent  by  the  Act  of  1877. 

The  Court  of  Session  has  a  cumulative  jurisdiction  in  the  great  bulk  of 
the  questions  competent  to  be  tried  in  the  Sheriff  Court,  the  chief  restric- 
tion being  that  in  actions  under  the  value  of  £25  the  jurisdiction  of  the 
Sheriff  Court  is  privative,  and  its  decisions  final.  (See  Dove  Wilson's 
Practice,  Introduction.) 

Sheriff-  Principal. 

The  term  "  Depute,"  often  used  in  place  of  "  Principal "  to  distinguish 
the  Sheriff  from  the  Sheriff-Substitute,  is  inappropriate  and  obsolete 
(9  Geo.  IV.  c.  29,  s.  22).  The  Sheriff-Principal  is  appointed  by  warrant  under 
the  sign-manual  of  the  Crown  ;  he  must  be  an  advocate  of  at  least  three 
years'  standing,  and  holds  his  office  ad  vitam  aut  culpam  (20  Geo.  il. 
c.  43,  s.  29).  He  must,  at  the  time  of  his  appointment,  have  been  either  in 
practice  before  and  in  habitual  attendance  upon  the  Court  of  Session,  or 
acting  as  a  Sheriff-Substitute  (1  &  2  Vict.  c.  119,  s.  2;  50  &  51  Vict.  c.  41). 
With  the  exception  of  the  Sheriffs  of  Edinburgh  and  Glasgow,  who  must 
reside  within  six  miles  of  these  places  respectively  (3  Geo.  iv.  c.  49), 
Principal  Sheriffs  are  not  required  to  reside,  but  must  hold  periodical  Courts 


SHEEIFr;  SHErdFE  COUET  307 

•annually,  within  their  sherificloms  (1  &  2  Yict.  c.  119,  s.  2 ;  16  &  17  Vict, 
c.  80,  s.  46  ;  33  &  34  Vict.  c.  86).  The  Secretary  for  Scotland  has  power 
with  regard  to  the  Sheriffs  appointed  after  1870,  to  prescribe  the  number  of 
Courts  they  shall  hold,  and  the  times  and  places  at  which  they  shall  hold 
them,  and  also  to  prescribe  the  duties  they  shall  perform  personally 
(33  &  34  Vict.  c.  86,  s.  13  ;  50  &  51  Vict.  c.  52,  s.  2).  The  Sheriff  is  mainly 
a  judge  of  appeal  from  the  Sheriff-Sul^stitute,  but  it  is  always  open  to  him 
to  judge  in  the  first  instance  when  he  so  chooses,  and  in  some  instances  he 
is  bound  to  do  so,  as  in  the  Small  Debt  Cii-cuits  (16  &  17  Vict.  c.  80, 
s.  46). 

To  provide  for  the  case  of  a  Sheriff  being  disabled  or  necessarily  absent, 
the  Secretary  for  Scotland  has  power,  on  an  application  made  by  the  Sheriff, 
or  on  his  behalf,  for  leave  of  absence  on  account  of  temporary  illness  or 
other  reasonable  cause,  to  grant  the  application  for  so  long  as  he  thinks 
proper,  and  to  appoint  an  interim  Sheriff.  The  interim  Sheriff  must  be 
either  a  Sheriff  of  another  sheriffdom  or  an  advocate  of  not  less  than  five 
years'  standing.  The  Secretary  fixes  the  proportion  of  the  Sheriff's  salary 
which  is  to  be  paid  to  the  interim  Sheriff.  The  interim  has  all  the  powers 
of  the  regular  Sheriff,  and  should  he  be  a  Sheriff  himself  he  does  not  vacate 
his  officeby  accepting  the  interim  appointment  (39  &  40  Vict.  c.  70,  s.  51 ; 
50  &  51  Vict.  c.  52,  s.  2). 

SiiEiiiFF  -  Substitute. 

The  Sheriff-Substitute  is  vested  with  and  entitled  to  exercise  (except 
when  it  otherv/ise  appears  either  from  statutory  declaration  or  fair  and 
necessary  inference)  all  the  power,  jurisdiction,  and  authority  pertaining  to 
the  office  of  Sheriff  {Flemiwj,  1862,  1  M.  188).  He  must  be  an  advocate  or 
a  law  agent  of  not  less  than  five  years'  standing  in  his  profession;  his 
appointment  is  by  the  Crown,  on  the  recommendation  of  the  Secretary 
for  Scotland;  and  his  office  is  for  life,  though  he  may  be  removed  for 
misconduct  or  inability  (40  &  41  Vict.  c.  50,  ss.  3,  4,  5  ;  50  &  51  Viet, 
c.  52,  s.  2).  Sheriffs-Substitute  must  reside  within  their  sheriffdoms  (1  &  2 
Vict.  c.  119,  s.  5  ;  Smith,  1890,  18  li.  340 j,  and  are  prohibited  from 
engaging  in  other  business  (21  Geo.  ii.  c.  19,  s.  10  ;  6  Geo.  iv.  c.  23,  s.  10; 
1  &  2  Vict.  c.  119,  s.  5).  The  Secretary  for  Scotland  has  power  to  fix  the 
places  at  wliich  Sheriffs-Suljstitute  may  be  required  generally  to  reside  and 
attend  for  the  performance  of  their  duties,  and  also  the  number  of  Courts 
to  be  held  by  tliem,  and  the  times  and  places  of  holding  such  Courts 
(33  &  34  Vict.  c.  86,  s.  14;  50  &  51  Vict.  c.  52,  s.  2).  The  Scotch 
Secretary  also  fixes  the  number  of  Sheriffs-Sulistitutc,  and  their  com- 
missions are  effectual  throughout  the  whole  sherilVdom  {ih. ;  16  &  17  Vict. 
c.  80,  s.  40 ;  33  &  34  ^^ict.  c.  86,  s.  12 ;  Thomson,  5  S.  L.  Eev.  105  ;  Tait, 
1891,  18  Pi.  600).  The  Secretary  may  also,  if  he  think  fit,  direct  a  Sheriff- 
Sul)Stitute  of  one  county  to  perform  the  duties  of  Shcriff-Sul)stitutc  in 
another  county,  if  conterminous  (38  &  39  Vict.  c.  81,  s.  2  ;  50  &  51  Vict, 
c.  52,  H.  2). 

]IoN01;A'.CY   SllEHIFF-SUBSTITUTE. 

It  is  customary  in  all  sheriffdoms  to  have  honorary  Sheriffs-Substitute 
to  take  the  place  of  the  ordinary  Siieriff-Substitute  when  the  latter  is 
temporarily  unable  to  act.  The  appointment  is  in  the  hands  of  the  Sheriff- 
Trincipal  (20  Geo.  ir.  e.  43),  and  is  during  his  pleasure,  though  the  com- 
mission does  not  fall  by  reason  of  his  demitting  olfice  (1  &  2  Vict.  c.  119, 
S8.  3,  4,  and  5).     The  honorary  has  the  same  powers  as  the  salaried  Sheriff- 


308  SHEEIFF;  SHERIFF  COUET 

Substitute  (3fann,  1892,  20  R  13),  and  his  commission  is  co-extensive 
(16  &  17  Vict.  c.  80,  s.  40  ;  33  &  34  Vict.  c.  8G).  Tiie  regulations  as  to 
qualification  for  the  office  apply  only  to  salaried  and  not  to  honorary 
Shei-iiis-Substitute  (40  &  41  Vict.  c.  50,  s.  4 ;  9  Geo.  iv.  c.  29,  s.  22); 
consequently  the  latter  require  no  special  qualification,  and  are  of  course 
not  restricted  from  doing  other  work.  He  may  be  an  agent  (Henderson, 
1845,  17  Sc.  Jur.  271);  but  if  so,  he  could  not  try  a  case  in  which  he  was 
personally  interested,  and  some  Sherifls  now  avoid  the  appointment  of 
a'reuts  The  sheriff  clerk  was  at  one  time,  but  is  not  now,  considered 
efigible  (Binning,  1711,  Mor.  7062;  Steivart,  1857,  29  Sc.  Jur.  344;  2  Irv. 
Oil). 

Ordinary  Sheriff  Court. 

I.  jurisdiction:  subject-matter. 
The  jurisdiction  of  the  Sheriff  Court  is  of  a  very  extensive  character. 
At  one  time  there  is  reason  to  believe  that  it  covered  the  whole  field,  both 
of  heritable  and  moveable  rights,  though  there  is  no  reason  to  think  that 
it  ever  had  jurisdiction  in  questions  of  status.  Its  jurisdiction  may  now  be 
said  to  cover  everything,  with  the  exception  of  questions  of  status  and, 
except  to  a  limited  extent,  of  heritable  title. 

1.  Moveables. — In  moveable  rights  the  jurisdiction  is  without  limit. 
All  actions  arising  out  of  contracts  having  regard  to  moveables,  whether 
the  conclusion  be  for  specific  implement  or  for  money,  may  be  tried  in  the 
Sheriff  Court.  Thus  all  actions  having  regard  to  bills,  sales,  landlord  and 
tenant,  partnership  accounts,  etc.,  and  mercantile  transactions  generally, 
are  competent. 

2.  Damages. — Also  all  actions  of  damages  or  for  reparation  may  be 
brought  in  the  Sheriff  Court,  though  one  or  two  of  these  may  be  removed 
to  the  Court  of  Session  before  the  merits  are  entered  upon. 

3.  Maritime. — There  is  a  large  jurisdiction  in  maritime  cases.  The  Sheriff 
at  one  time  exercised  this  under  a  separate  commission  as  a  deputy  of  the 
old  High  Court  of  Admiralty,  now  he  exercises  it  simply  as  Sherilf  (2  Geo.  iv. 
and  1  Will.  iv.  c.  69,  ss.  21-29;  1  &  2  Vict.  c.  119,  s.  21).  The  jurisdic- 
tion comprehends  all  questions  connected  with  shipping,  such  as  charter- 
parties,  bills  of  lading,  insurance  policies,  freights,  bottomries,  etc.  (Ersk.  i. 
3.  33),  and  questions  of  salvage  and  of  damages  for  collision.^  Tlie  Sheriff 
can  try  such  questions  when  arising  within  his  sheriffdom,  including  the 
navigable  rivers,  ports,  harbours,  creeks,  shores,  and  anchoring  grounds  in 
or  adjoining  such  sheriffdom  (11  Geo.  iv.  and  1  Will.  iv.  c.  69,  s.  22).  The 
jurisdiction  applies  to  persons  residing  furth  of  Scotland  (i6.),  but  only  if 
the  defender  is  on  legal  grounds  amenable  to  the  jurisdiction  of  the  Sheriff 
(1  &  2  Vict.  c.  119,  s.  21  ;  and  see  Neill's  Forvis,  p.  19).  The  jurisdiction 
may  be  founded  by  arrestment  jurlsdictionisfundandce  causa  (Brulin,  1864, 
2  M.  335).  In  this  case  the  sum  arrested  must  not  be  illusory  (Shaw,  1869, 
7  M.  449).  Where  a  ship  or  other  vessel  belonging  to  a  foreigner  is 
arrested,  the  foreigner  is  amenable  to  the  Sheriff's  jurisdiction  not  only  as 
regards  maritime  actions  but  as  regards  all  actions  competent  against 
Scotchmen  subject  to  the  jurisdiction  (40  &  41  Vict.  c.  50,  s.  8  (4)).  The 
ship  must  be  within  the  jurisdiction  when  arrested  (Carlhcrg,  1878,  5 
E.  (H.  L.)  217).  The  application  for  arrestment  is  by  an  ordinary  petition, 
which  may  be  combined  with  the  original  action.  As  to  the  issue,  use,  and 
loosing  of  such  arrestments,  see  Craig,  1896,  23  E.  500  ;  Wall's  Trs.,  1888, 
15  E.  359  ;  Blach,  1887,  14  E.  078;  Stcicart,  1882,  10  E.  3S-2;  3I'Phcdnvi, 
1888,  16  E.  45;  Malonc,  1884,  11  E.  853. 


SHEraFF;  SIIEllIFF  COUET  309 

Special  power  to  detain  a  foreign  ship  in  cases  where  injury  has  resulted 
from  the  want  of  skill  of  the  master  or  mariners  of  the  ship  is  given  to  the 
Sheriff  by  the  Merchant  Shipping  Act,  17  &  18  Yict.  c.  1U4,  s.  527,  but  is 
seldom  used,  resort  being  usually  had  to  aiTestment  J urisdidionis  fun dandcv 
causa. 

Where  counties  are  divided  from  each  other  by  a  river,  firth,  or 
estuary,  the  Sheritls  of  the  counties  adjoining  have  a  cumulative  jurisdiction 
over  the  whole  intervening  space  of  w^ater,  provided  that  if  the  defender 
reside  in  one  of  such  counties,  the  pursuer  must  bring  his  action  in  the 
Court  of  that  county  (11  Geo.  iv.  and  1  "Will.  iv.  c.  69,  s.  24).  There  is  a 
power  of  remitting  such  cases  from  one  Sheriff  Court  to  another  oh  con- 
tingcntiam,  or  for  other  sufficient  cause  {ih.).  The  procedure  in  maritime 
cases  is  as  nearly  as  may  be  the  same  as  in  ordinary  actions  (1  &  2  Yict. 
c.  119,  s.  21),  and  where  the  value  is  under  £25  there  is  no  appeal. 

Seamen's  wages,  when  not  exceeding  £50,  may  be  sued  for  summarily 
in  the  Sheriff  Court,  and  the  Sheriffs  decision  is  final  (IMerchant  Shipping 
Act,  17  &  18  Yict.  c.  104,  ss.  88  and  91).  The  action  may  be  before  the 
Sheriff  of  the  place  at  which  the  service  has  terminated,  or  at  which  the 
seaman  has  been  discliarged,  or  at  whicli  any  person  upon  whom  the  claim 
is  made  is  or  resides  (ih.).  For  the  procedure  in  such  an  action,  see  Dove 
Wilson,  Practice,  pp.  450,  451. 

Salvage  actions,  where  the  amount  claimed  does  not  exceed  £200,  or 
where  the  property  salved  is  not  w^orth  more  than  £1000,  may  be  sued  m 
the  Sheriff  Court  in  the  same  summary  manner  as  seamen's  wages  (17  &  18 
Yict.  c.  104,  s.  531,  and  Amending  Act,  25  &  2G  Yict.  c.  63,  s.  59  (8)).  The 
jurisdiction  extends  only  to  disputes  between  the  salvors  and  the  ov>ners 
of  the  salved  ship  {Summers,  1891,  18  11.  879).  The  application  is  to  the 
Sheriff  as  arbiter  (17  &  18  Yict.  c.  104,  s.  460;  25  &  26  Yict.  c.  63,  s.  49 
(6,  7,  8)) ;  in  the  case  of  wreck,  to  the  Sheriff  resident  at  or  near  the  place 
where  it  is  found ;  and  in  the  case  of  services  rendered  in  connection  wiLli  a 
ship,  to  the  Sheriff'  residing  at  or  near  where  it  is  lying,  or  at  or  near  the 
first  port  to  whicli  it  is  taken  immediately  afterwards  (Summers,  supra ; 
17  &  18  Yict.  c.  104,  s.  460).  There  is  appeal  to  the  Court  of  Session,  but 
only  where  the  sum  in  dispute  exceeds  £50.  Up  to  this  limit  the  Sheriff 
is  final  (ib.,  s.  464). 

For  procedure,  see  Dove  Wilson,  Fracfice,  p.  452. 

Where  the  claim  exceeds  £200,  or  where  the  value  exceeds  £1000,  tlie 
case  is  not  competent  in  the  Sheriff  Court,  except  with  the  consent  of  the 
l)arties.  If  the  sum  recovered  does  not  exceed  £200,  costs  cannot  be  recovered 
unless  the  Sheriff  certify  that  tlie  case  is  a  fit  one  to  l)e  tiied  in  a  suitciior 
Court  (ih.,  s.  460). 

The  action  of  set  and  sale  of  sliips  ((].v.)  is  also  competent  in  the 
Sheriff  Court.  As  to  the  power  of  appointing  assessors  in  cases  arising  out 
of  or  relating  to  collisions,  salvage,  towage,  or  any  other  maritime  matter, 
see  Nautical  Assessors  (Scotland)  Act,  1894,  57  &  58  Yict.  c.  40. 

4.  Status. — The  Sheriff  has  no  jurisdiction  to  try  questions  of  status, 
such  as  marriage,  divorce,  or  IcgitinuuT. 

5.  Aliment. — In  all  actions  of  aliment  the  Sheriff  has  full  jurisdiction 
(Tait,  1802,  Mor.  Ajip.  "Aliment,"  No.  ."> ;  }f'Klssork,  181 7,  Hume,  6  ;  Wilson, 
1825,  3  S.  (O.  K.)  547),  limited  only  by  this,  that  tlnTc  is  no  jnrisdiction  if 
it  bo  necessary  in  order  to  establish  the  right  to  uliiiicnl.  to  enter  wy^w  ibe 
merits  of  any  question  of  status  (IJenson,  1854,  16  i).  555;  Jlraie/c,  1829, 
8  S.  284:  but  see  jWLcod,  1820,  Hume,  10;  m/lie,  8  July  1824,  F.  C. ; 
licid,  1814,  Hume,  5).     In  such  cases  he  can  award  interim  aliment  only 


310  SHERIFF;  SHEPJFF  COUET 

{Smith,  1874,  1  E.  1010  ;  McDonald,  1875,  2  E.  705;  Nivcn,  1877,  Guthrie's 
Select  Cases,  30  ;  11  Geo.  iy.  and  1  Will.  iv.  c.  09,  s.  32). 

G.  Custody  of  Children. — The  Sheriff  can  deal  with  the  custody  of 
children,  hut  only  to  the  extent  of  regulating  the  interim  custody  (Fraser 
on  Parent  and  Child  (Cowan),  81;  Hood,  1871,  9  M.  449;  Stewart,  3 
S.  L.  Eev.  405),  or  of  giving  a  person  whose  legal  right  to  custody  is  nob 
disputed,  possession  as  against  a  person  who  has  no  legal  title  {Erand, 
1888,  15  E.  449).  The  question  of  the  permanent  custody  of  children 
{Maelxnzie,  1892,  19  E.  963),  and  of  whether  a  person  has  or  has  not  a 
legal  title  to  the  custody,  helongs  to  the  Court  of  Session.  The  Guardian- 
ship of  Infants  Act,  1886,  gives  the  Sheriff  the  power,  on  the  application  of 
the  mother,  to  make  such  order  as  to  the  custody  of  and  right  of  access  to  a 
child  as  he  may  think  fit  (49  &  50  Vict.  c.  27,  s.  5). 

7.  Heritable.— («)  The  jurisdiction  of  the  Sheriff  Court  in  this  respect, 
once  complete,  was  for  long  entirely  in  abeyance,  but  is  now  revived  to  the 
small  extent  made  competent  by  the  Sheriff  Courts  Act  of  1877.  By  that 
Act  the  Sheriff  now  has  jurisdiction  in  all  actions  (excluding  adjudications, 
except  so  far  as  already  competent,  and  reductions)  concerning  heritable 
property — including  questions  of  title — where  the  property  does  not  exceed 
£50  by  the  year,  or  £1000  in  all  (40  &  41  Vict.  c.  50,  s.  8  (1)).  If  there  is  any 
question  as  to  the  value  of  the  subject  in  dispute,  the  Sheriff's  determination 
is  final  as  to  the  competency  of  bringing  the  action  in  the  Sheriff  Court  {ih.,. 
s.  10).  (As  to  the  expediency  of  proceeding  in  the  Sheriff  Court  when  the 
value  is  in  doubt,  see  Bowie,  1887, 14  E.  649,  where  there  was  also  a  question 
as  to  whether  the  value  is  to  be  determined  by  reference  to  the  pursuer's  or 
defender's  interest.  The  words  "  value  in  dispute  "  appear  to  cover  both.) 
The  action  must  be  brought  in  the  Sheriff  Court  of  the  county  in  which  the 
property  in  dispute  is  situated,  and  all  parties  against  whom  the  action  is 
directed  are  subject  to  the  jurisdiction  of  that  Court  {ih.,  s.  8).  The  juris^ 
diction  is  limited  by  this,  that  it  is  in  the  power  of  the  defender  to  remove 
the  action  to  the  Court  of  Session  at  any  time  within  six  days  of  the  closing 
of  the  record  {ih.,  s.  9  (1)). 

(b)  Nuisance  and  Servitude. — The  Sheriff  has  full  jurisdiction  in  these 
matters,  even  though  questions  of  heritable  title  be  involved.  If  it  were 
necessary  in  such  a  matter  to  have  an  action  of  declarator,  it  miglit  for 
that  reason  be  necessary  to  go  to  the  Court  of  Session,  but  practically  all 
questions  of  nuisances  and  servitudes  may  be  effectually  tried  in  the  Sheriff 
Court  in  the  form  of  an  action  of  interdict,  and  in  such  an  action  the  Sheriff 
could  entertain  in  the  case  of  a  servitude  the  question  whether  it  was  properly 
constituted,  and  to  that  end  consider  the  titles  to  the  property  and  take 
evidence  of  possession  during  the  full  prescriptive  period,  forty  years.  See 
1  &  2  Vict.  c.  119,  s.  15;  Brown,  1843,  5  D.  463;  Thomson,  1862,  24  D. 
975  ;  Goios  Trs.,  1875,  2  E.  729. 

(c)  Feu-Duties. — All  actions  for  the  recovery  of  feu-duties  and  for  the 
recovery  of  casualties  are  competent,  provided  no  question  of  title  be 
involved. 

There  is  also  a  limited  jurisdiction  in  removals  for  non-payment  of 
feu-duty.  Where  the  subject  does  not  exceed  £25  in  yearly  value,  and 
the  feu-duties  are  in  arrear  for  two  years,  the  vassal  may  be  removed  in  the 
Sheriff  Court  oh  non  solutum  canoncm.  The  vassal  may,  however,  within  a 
year  of  removal  raise  an  action  of  declarator  in  the  Court  of  Session  for 
vindication  of  the  subject  on  any  ground  proceeding  on  challenge  of  the 
superior's  title  (16  &  17  Vict.  c.  80,  s.  32).  Other  irntancies  oh  non  solutum 
canonem  are  competent  only  when  within  the  scope  of  the  Act  of  1877. 


SHERIFF;  SHERIFF  COURT  311 

(d)  Two  actions  for  enforcement  of  heritable  rights  are  competent: 
action  of  maills  and  duties,  and  poinding  of  the  ground.  By  the  first  of 
these  a  heritable  creditor  can  enter  upon  the  possession  of  a  heritable 
subject  that  is  secured  to  him,  to  the  effect  of  himself  collectino-  the 
rents  and  duties  in  payment  of  his  interest  or  ^Yhat  is  due  to  him.  By 
poinding  of  the  ground  lie  can  take  possession  of  all  the  moveable  subjects 
that  are  upon  the  heritable  subject  to  the  extent  to  which  he  is  entitled  to- 
take  them  by  law.     See  Maills  and  Duties  ;  Poinding  of  the  Geound. 

(c)  Regulation  of  Marches,  Division  of  Commonty,  and  Division  of  Common- 
Property. — In  all  questions  connected  with  the  first  of  these,  the  Sheriff  has 
practically  sole  jurisdiction  {Kintore,  188G,  11  M.  137).  In  the  others,  by 
the  Act  of  1877,  he  has  jurisdiction  where  the  value  of  the  subject  doe^ 
not  exceed  £50  by  the  year  or  £1000  in  all  (40  &  41  Yict.  c.  50,  s.  8  (3)). 
See  Division  and  Sale  (Sheriff  Court). 

(/)  Actions  of  adjudication  and  of  adjudication  in  implement,  whcreljy  a 
heritable  estate  is  taken  in  payment  of  a  debt,  are  competent  but  not 
common  (see  Dove  Wilson,  Practice,  p.  394). 

(g)  Leases  and  Bents. — All  questions  as  to  these,  in  so  far  as  not  raising 
any  question  of  the  title  to  the  land,  are  competent  in  the  Sheriff  Court. 
The  true  import  of  leases,  as,  for  instance,  their  duration,  if  in  dispute,  may 
be  settled  {Rolertson,  1875,  3  R.  21),  and  implement  of  the  legal  obligations- 
incurred  in  them  may  be  enforced  {Horn,  1830,  8  S.  329;   Wright,  1875,. 
3  R.  68),  as  also  a  duty  of  leaving  the  premises  in  proper  order  (Diclson, . 
1877,  4  R.  717 ;  Gordon,  1870,  8  M.  90G).     All  (juestions  as   to  rent  are 
competent;  and  the  Sheriff  Court  may  interfere  during  the  currency  of  a  . 
lease  to  protect  property  which  is  in  danger  of  injury  owing  to  the  absence 
or  desertion  of  the  tenant  (Gibson,  1895,  23  R.  294 ;  "i.Vor/,-,  13  D.  1069). 

(A)  Entails — Certain  proceedings  in  connection  with  tliese  are  com- 
petent.   See  Entailed  Estates,  Applications  as  to  ;  Sheriff  Court. 

(i)  Possession.  —  In   other    cases    connected    with    heritable   subjects, 
which  cannot  ]je  brought  under  the  Act  of  1877,  the  jurisdiction  of  the 
Sheriff  is  limited  to  pronouncing  possessory  judgments  for  the  purpose  of 
protecting  or  regulating  the  right  of  possession  without  reference  to  title. 
Such  actions  are  founded  maiidy  on  the  possession  that  has  been  liad  for  th&  • 
preceding  seven  years  (Sutherland,  1876,  3  R.  485  ;  Pyridgcs,  1S22, 1  S.  (N.  E.),. 
351;  Nishct,  1866,  4  M.  285;   Pitman,  1882,  9  R.  444;  M'Kerron,  1876,,. 
3  R.  429  ;  Carswcll,  1878,  6  R.  60).     Where  titles  are  in  dispute,  the  Sheriff- 
can  regulate  possession  pending  the  final  settlement  of  the  dispute  in  the- 
Court  of  Session  (Maxwell,  1866,  4  M.  447;  Johnston,  1862,  2-t  D.  709;- 
Lidon,  1835,  14  S.  97);  but  only  if  there  be  an  ex  facie  valid  and  im- 
aml)iguous    title    (Cruickshanh,    1854,    17   D.    286;    Louson's   Trs.,   1864, 
3  M.  53). 

8.  Succession. — In  addition  to  the  jurisdiction  in  tin's  respect,  eo  far  as 
exercised  in  the  ordinary  forms  of  action,  tlie  SlicrilV  entertains  questions 
of  service  of  heirs,  of  appointments  and  confirmations  of  executors,  and  of 
the  making  up  of  a  legal  title  in  herital)le  or  moveable  succession  (31  &  32 
Vict.  c.  101  ;  21  &  22  Vict.  c.  56  ;  A.  S.,  19th  Marcli  1859;  39  &  40  Vict. 
c.  70, Part  VII  I.).  C(!rtain  facilities  in  the  case  of  small  moveable  successions, 
that  is,  wliere  the  ])ersonal  estate  does  not  exceed  .£:!00,  are  given  by  38  & 
39  Vict.  c.  41  ;  39  &  40  Vict.  c.  24,  as  extended  by  44  &  45  Vict.  c.  12, 
8.34. 

9.  Ji:i»K[AL  Factors. — At  common  law  Sheriffs  have  no  jurisdiction  to 
appoint  judicial  factors,  further  than  where  it  is  necessary  to  extricate  some 
other  part  of  their  jurisdiction,  as,  for  instance,  to  take  temporary  charge  of 


312  SHEEIFE;  SHERIFF  COUET 

property  during  a  litigation  (Drijsdale,  1842, 4  D.  1081 ;  Boice,  1872, 9  S.  L.  E. 
492),  or  of  property  which  has  been  deserted  {Gibson,  1895,  23  E.  294). 
They  have  jurisdiction,  as  representing  the  old  Commissaries,  in  moveablR 
succession  to  appoint  factors  to  act  for  persons  who,  though  entitled  to  the 
of&ce  of  executor,  are  unable  for  any  reason  to  perform  the  functions.  By 
statute,  in  the  case  of  estates  the  yearly  value  of  which  from  all  sources  is 
not  more  than  £100,  the  Sheriff  can  appoint  factors  to  pupils  or  to  insane 
persons  (43  &  44  Vict.  c.  4). 

The  Sheriff  can  also,  on  the  petition  of  anyone  who  is  interested,  appoint 
a  factor  to  take  interim  custody  of  property  where  the  appointment  of  a 
person  having  a  proper  title  cannot  immediately  be  made,  e.g.  Cmiqjlcll, 
1895,  23  E.  90. 

10.  Bankruptcy  and  Insolvency. — The  Sheriff  has  considerable  juris- 
diction in  questions  of  bankruptcy  and  insolvency,  mercantile  sequestrations 
and  cessios.     See  Bankruptcy  ;  Cessio  ;  Insolvency  ;  Sequestration. 

11.  Poor  Law  and  Lunacy. — The  Sheriff  has  power  to  determine  the 
right  of  a  pauper  to  relief,  Imt  not  the  amount  of  relief  to  which  he  is 
entitled  (8  &  9  Vict.  c.  83,  s.  73  ;  A.  S.,  12th  Feb.  1846).  Under  the  Lunacy 
Acts  he  decides  as  to  the  commission  of  lunatics  to  asylums.  See  Lunacy 
Acts. 

n.  jurisdiction:  forms  of  action. 

1.  Petitory. — -Petitory  actions  are  competent  to  the  fullest  extent,  and 
include  the  ordinary  actions  for  payment  of  money  and  those  actions  in 
which  there  is  a  conclusion  that  the  defender  shall  be  ordained  to  do  or 
i-to  refrain  from  or  discontinue  doing  some  act. 

(a)  Actions  for  2^aymcnt  of  money  may  conclude  for  payment  immedi- 
.ately  or  at  a  future  time,  in  one  sum  or  by  instalments. 

(b)  Actions  ad  factum  prKstanclum. — These  seek  to  have  the  defender 
ordained  to  do  some  act,  or  specifically  to  implement  some  contract,  e.g.  Corbet, 
1808,  Hume,  346;  Eccrl  of  Aberdeen,  1822,  1  S.  273;  Earl  of  Moray,  1842, 
4  D.  1411 ;  Bidden,  1821,'  1  S.  160.  They  may  deal  with  heritage  provided 
no  question  of  heritable  right  is  raised  {Corbet  and  Earl  of  Aberdeen,  snpr a); 
if  there  is,  it  is  incompetent  {Cox,  1873, 1  E.  60  ;  Anderson,  1871, 43  Sc.  Jur.). 
■Contrary  to  the  rule  in  England,  where  specific  implement  may  be  refused 
when  damages  would  be  an  adequate  remedy,  a  pursuer  in  Scotland  has 
Ills  choice  of  specific  implement  or  damages,  and  is  entitled  to  the  former 
unless  the  defender,  on  whom  the  onus  is,  can  show  that  it  would  be  unjust  to 
grant  it  {Stetvart,  1890,  17  E.  (H.  L.)  1 ;  see  Lds.  Macnaghten  and  "Watson). 
For  an  exception  to  the  power  of  the  Sheriff  Court  to  order  specific 
implement  of  a  contract  in  the  case  of  arbiters,  see  Sinclair,  1884,  HE. 
1139  ;  Forbes,  1886,  13  E.  465. 

The  action  of  Count  and  Beckoning  is,  at  least  in  its  first  stage,  an 
action  ad  factum  -prmstandum,  the  thing  to  be  done  being  the  production  of 
accounts. 

(c)  Interdicts  are  actions  to  restrain  the  defender  from  doing  some 
action  complained  of.     A  form  of  these  is 

{(1)  Suspensions,  which  seek  to  prevent  the  carrying  out  of  legal  diligence. 
Suspensions  are  competent  in  the  Sheritf  Court  only  where  a  charge  has 
been  given  for  payment  of  a  sum  not  exceeding  £25,  exclusive  of  interest 
and  expenses  (1  &  2  Vict.  c.  119,  s.  19 ;  A.  S.,  1839,  ss.  116-118). 

2.  Possessory. — These  are  actions  in  which  the  judgments  affect  merely 
the  right  to  the  possession  of  heritable  subjects,  and  do  not  affect  the  title 
itself.     They  take  the  form  of  actions  of  interdict,  in  which,  by  pronouncing 


SHERIFF;  SHERIFF  COURT  313 

interim  interdict,  the  Sheriff  preserves,  until  finally  deciding  thereon,  the 
status  quo  existing  previous  to  the  dispute;  by  giving  final  interdict 
he  decides,  upon  a  consideration  of  the  state  of  possession  during  the  seven 
years  previously,  what  possession  is  to  be  maintained  thereafter,  till  the 
question  of  title,  if  in  dispute,  is  settled  in  the  Court  of  Session.  See  supra, 
JURISDICTION  :  SUBJECT-MATTER,  Hcvitahlc,  Fosscssiov. 

3.  Declaratory. — (I)  Declarators. — The  Sheriff  Court  has  no  common  law 
jurisdiction  in  declarators,  that  is,  in  actions  in  which  it  is  sought  to  have  it 
declared  that  some  particular  relationship  exists  in  law,  or  that  a  person  is 
entitled  in  law  to  the  exercise  of  some  right.  By  statute  declarators  are 
competent  where  the  value  at  stake  does  not  exceed  £1000  in  the  case  of 
moveables,  and,  in  the  case  of  heritables,  £50  by  the  year  or  £1000  in 
all  (40  &  41  Vict.  c.  50,  s.  8).  In  all  other  cases  declarators  are  incompetent. 
The  mere  introduction,  however,  of  a  declaratory  conclusion  in  a  petitory 
action,  as  leading  up  to  and  as  a  reason  for  granting  the  petitory  conclusion, 
does  not  invalidate  the  action  {Taylor,  1824,  2  Sh.  App.  30;  Hall,  1831, 
9  S.  612;  Murdoch,  1832,  10  S.  445);  but  it  is  not  a  good  form  of  process, 
and,  unless  the  declaratory  conclusions  are  competent  under  the  statute, 
should  be  avoided  (  Wilson,  1885, 13  R.  21). 

(2)  Proving  the  tenor  of  a  deed  or  other  writing  which  has  been  lost  is  a 
form  of  declarator,  and  is  competent  only  within  the  limits  within  which 
other  declarators  are  competent  (see  supra). 

(3)  Actions  of  Division. — These  are  competent  in  regard  both  to  («) 
heritables,  and  (h)  moveables. 

(a)  Division  of  Commonty,  Division,  and  Division  and  Sale  of  common 
property  are  competent  actions  in  the  Sheriff"  Court  where  the  value  of  the 
property  in  dispute  does  not  exceed  £50  by  the  year,  or  £1000  (40  &  41 
Vict.  c.  50,  s.  8  (3)).     See  Division  and  Sale  (Siierut  Coui;t). 

(b)  Multii^lepoinding.—T\\\B  is  the  form  of  action  where  a  subject, 
either  goods  or  money,  is  in  the  possession  of  one  person  and  is  claimed 
by  more  than  one  other.  The  subject  of  a  inultiplepoinding  is  called 
the  fund  in  medio,  and  must  be  wholly,  not  partly,  subject  to  the 
competing  claims  {Macnah,  1894,  21  R.  827),  and  must  also  be  ready 
for  immediate  division  on  the  conclusion  of  the  action  {Nimmo,  1803,  1 
M.  791).  The  fund  in  medio,  in  the  Sheriff  Court,  cannot  be  heritable 
unless  witliin  the  limits  of  the  Act  of  1877  (40  &  41  Vict.  c.  50,  s.  8). 
]\Iultiplepoinding  is  not  competent  where  a  simpler  form  of  action  is 
possible.  It  cannot,  for  instance,  take  the  place  of  proceedings  under  the 
Iiankrui)tcy  or  Cessio  Acts  for  the  winding  up  of  insolvent  estates  {Kyd, 
1880,  7  It.  884).     Sec  Multipleroindinc. 

4.  Resclssory. — deductions. — These  are  actions  in  whicli  it  is  sought  to 
have  some  deed  or  other  writing  ([uashed  and  reduced  and  declared  to 
be  of  no  avail,  and  at  common  law  are  not  comi)ctent  in  the  Sheriff' 
Court  (Younr/,  1830,  9  S.  59;  Flcshers  of  Glasgow,  1824,  3  S.  305;  Porteous, 
1830,  8  S.  908;  MLarcn,  1857,  20  D.  48).  Tiie  ends  which  an  action  of 
reduction  would  serve  may,  however,  be  attained  in  the  Sheriff  Com  I ,  ni  cer- 
tain cases,  in  other  ways.  Ry  the  Act  of  1877,  when,  in  any  action  com- 
petent in  the  Sheriff  Court,  a  deed  or  writing  (as  to  what  tiicse  words  cover, 
see  Nivison,  18S:'s  11  II.  189;  Hcolt,  18SG,  24  S.  R.  R.  .".4)  is  founded  on  by 
either  party,  all  objections  to  it  maybe  stated  and  maintained  liy  way  of 
exception,  without  the  necessity  of  bringing  a  ii(bi(l  ion  (40  \'  M  N  ict. 
c.  50,  s.  11).  A  thing  arises  by  way  of  exception  when  it  arises  by  way 
of  reply.  'I'iius  a  defender  ean  ])lead  any  exception  to  a  deed  founded  on 
by  the  pursuer,  such  as  that  it  was  obtained  by  fiaud,  and  can  state  this 


o 


14  SHEKIFF;  SHERIFF  COURT 


defence  before  the  Sheriff.  Similarly,  the  pursuer  can  take  exception  to 
any  deed  or  writing  produced  and  founded  on  by  the  defender  {Mcu-kie, 
1896,  23  E.  1030).  In  both  cases  reduction  is  unnecessary.  The  Sheriff 
may,  however,  direct  anyone  objecting  by  way  of  exception  to  a  liquid 
document  of  debt,  to  find  such  caution  or  consign  such  sum  as  he  may 
ordain  (40  &  41  Vict.  c.  50,  s.  11).  Also,  by  the  Bankruptcy  Acts,  deeds 
or  alienations  of  property  void  by  these  Acts,  or  voidable  by  statute  or^at 
common  law,  may  be  set  aside  in  the  Sheriif  Court  (19  &  20  Vict.  c.  79, 
s.  10;  20  &  21  Vict.  c.  19,  s.  9).  AVhere  in  the  course  of  an  action 
the  validity  of  such  a  deed  is  challenged,  the  question  may  be  settled  for 
the  purposes  of  the  particular  action,  but  the  action  is  incompetent  if  it  is 
solely  for  the  purpose  of  reducing  the  deed  (Dickson,  1866,  4  M.  797).  If 
there  are  conclusions  otherwise  competent,  the  introduction  of  a  reductive 
conclusion  will  not  render  the  action  incompetent.  But  no  reductive 
decree  can  follow  on  it,  and  a  conclusion  of  this  sort  is  better  avoided 
{3Ioronc!/,  1867,  6  M.  7 ;  cf.  Coolc,  1896,  23  R.  925). 

5.  Competent  Special  Remedies. — (a)  With  regard  to  heritage,  the 
following  forms  of  action  are  competent,  and  have  been  already  referred 
to : — Recovery  of  Feu-Duties  and  Casualties,  Maills  and  Duties,  Poinclincf 
of  the  Ground,  Straightening  of  Marches,  and  Adjudications;  see  S2/pra, 
jurisdiction:  subject-matter,  Ileritahle  (c),  (d),  (c),  (/). 

(h)  Actions  of  Constitution. — These  are  simply  actions  for  payment  of 
money,  but  the  term  is  used  specially  to  denote  actions  raised  against 
representatives  of  deceased  debtors  (see  Smith,  1800,  22  D.  1495  ;  Forrest, 
1863,  1  M.  806;  Davidson,  1867,  6  M.  151).  Actions  of  constitution 
against  heirs,  with  a  view  to  afterwards  adjudging  b.eritage,  are 
competent. 

(c)  Actions  of  Exhibition,  whereby  deeds  or  other  writings  are  sought- 
to  be  delivered  up  or  exhibited,  are  a  form  of  actions  ctd  factum  jjrccstandum. 
Where  iov  examination  only,  the  order  is  for  exhibition  in  the  hands  of 
the  sheriff  clerk  {Clarh,  1880,  8  R.  81).  If  no  question  of  heritable  title  is 
in  question,  the  action  is  competent  in  regard  to  heritage  {Burnet,  1864, 
2  M.  929). 

{d)  Rcmovings  and  Ejections. — The  former  are  actions  at  the  instance  of 
landlords  against  tenants  whose  term  of  occupancy  is  alleged  to  have  come 
to  its  stipulated  close;  the  latter  are  directed  against  those  who  can 
assert  no  title,  or  whose  title  has  been  interrupted  and  terminated 
by  decree  or  otherwise  {Fiobh,  1895,  22  R.  885).  Removings  are  either 
solemn  or  summary.  Solemn  removings  are  those  in  which  forty  days 
warning  is  required.  They  are  either  ordinary,  i.e.  at  the  natural 
termination  of  the  lease,  or  extraordinary,  where  the  currency  of  the  lease 
is  terminated  by  a  legal  or  conventional  irritancy,  and  apply  both  to- 
agricultural  and  non-agricultural  subjects  (A.  S.,  14th  December  1756 ;. 
46  &  47  Vict.  c.  62,  s.  27).  Summary  removings  require  less  formality,, 
and  deal  with  the  cases  of  houses  let  for  less  than  a  year  (1  &  2  Vict. 
c.  119,  s.  8),  or  those  cases  where  the  tenant  has  come  under  an  obligation,, 
express  or  implied,  to  remove  (16  &  17  Vict.  c.  80,  ss.  29,  30,  31,  32),  or 
where  verbal  warning  is  enough.  Ejection  is  the  method  by  which 
a  decree  of  removing,  if  not  obeyed,  is  enforced. 

{c)  Sequestrations  for  Rent. — Sequestration  by  a  landlord  of  the  effects- 
over  which  he  has  a  right  of  hypothec  is  of  two  kinds,  either  in  payment 
of  past-due  rents  (30  &  31  Vict.  c.  42,  s.  4),  or  in  securitv  of  rents  not  yet 
due  (Donedd,  1886,  13  R.  790:  Doiv,  1784,  Mor.  6202;  fFcIIs,  1800,  Hume, 
225  ;  A.  S.,  10th  July  1839,  s.  152  ;  Osiccdd,  1851, 13  D.  1229  ;   Wedson,  1878, 


SHEEIFF;  SHEEIFF  COUET  315 

5  E.  843  ;  Gordon,  1836,  14  S.  954).  The  landlord  has,  however,  no  right  of 
hypothec  for  the  rent  of  land,  including  tlie  rent  of  any  buildings  on  it, 
of  greater  extent  than  two  acres,  let  for  agriculture  or  pasture,  except  in. 
the  case  of  rents  due  under  leases  current  at  lltli  November  1881 
(43  Yict.  c.  12,  s.  1). 

(J)  Furthcominr/s. — The  action  of  furthcoming  is  the  step  by  which  an  ' 
arrestment  is  made  available.  The  arrestee  and  the  common  debtor  are 
both  called  as  defenders,  and  it  is  enough  if  the  arrestee  only  is  subject 
to  the  jurisdiction  (39  &  40  Met.  c.  70,  ss.  47,  12  (1),  8  ;  see  Lee's  Ilandhooh 
of  Styles,  pp.  144,  275;  3Ta>/,  1825,  4  S.  70  :  Houston,  1849,  11  D.  1490; 
Lucas  Trs.,  1894,  21  E.  1096). 

6.  AcCESSOEY.  —  {a)  Meditatio  fugce.  —  Mcditatio  fvgcc  warrants  are 
granted  to  prevent  a  debtor  escaping  from  his  liabilities  by  leaving  Scot- 
land. They  are  not  now  of  the  importance  they  once  were,  and  are 
competent  only  in  respect  of  debts  upon  which  civil  imprisonment  may 
follow,  i.e.  alimentary  debts,  rates  and  assessments,  and  taxes,  penalties, 
or  fines   due  to  the  Crown  {Hart,  1890,  28  S.  L.  E.  133;   Kidd,  1882, 

9  E.  803 ;  43  &  44  Vict.  c.  34;  45  &  46  Yict.  c.  42).  They  are  granted  on 
the  application  of  the  creditor,  who  must  swear  to  the  truth  of  the  debt 
and   of   his   belief   that   the   debtor  is   about   to   abscond    {King,    1832, 

10  S.  544 ;  Laing,  1789,  Mor.  8555 ;  2  Bell's  Com.,  5th  ed.,  560).  This  oath 
should,  if  possible,  be  made  before  the  Sheriff  to  whom  the  application  is 
made  (see  Anderson,  26  November  1814,  F.  C).  The  application  may  be 
either  to  the  Sheriif  within  whose  jurisdiction  the  debtor  may  happen  to  be 
at  the  time  (2  Bell's  Com.,  5th  ed.,  559 ;  Barrowjicld,  1727,  Mor.  8549),  or 
to  the  Sheriff  within  whose  jurisdiction  he  resides,  even  though  absent  for 
the  time  being  (see  Mantle,  1856,  18  D.  395).  If  the  dcl)tor  is  furth 
of  Scotland,  the  warrant  is  not  available  to  bring  him  back  {Adam,  1887, 
14  R.  800),  but  it  may  he  put  in  force   if   he   returns   {Crowner,  1832, 

6  W.  &  S.  271).  The  warrant  can  issue  against  foreigners  for  debts 
incurred  in  Scotland  (Ersk.  i.  2.  21),  and,  if  the  foreign  debtors  are 
themselves  in  Scotland,  for  debts  incurred  to  foreign  creditors  {Bay,  1763, 
Mor.  2051;  2  Bell's  Com.,  5th  ed.,  563;  Irvine,  1869,  7  M.  723).  If  the 
debtor  really  intends  to  leave  Scotland,  it  is  not  necessary  that  it  should  1)0 
to  avoid  payment  {Laing,  1789,  Mor.  8555  ;  Jackson,  1865,  4  M.  72).  If  his 
absence  is  only  to  be  temporary,  or  if  ordered  aljroad  on  public  duty,  the 
warrant  cannot  be  granted  {Gorman,  1827,  5  S.  291;  Service,  25  May 
1811,  F.  C;  Bryson,  10  March  1812,  F.  C).  Tlie  possession  of  property 
sufficient  to  meet  the  debt  is  no  ground  for  refusing  the  warrant  {Heron, 
1773,  Mor.  8550). 

{h)  Transference. — Wlicn  a  ])ursuer  or  defender  dies  and  his  representa- 
tives refuse  to  come  in  liis  ]>lace,  they  may  be  compelled  to  do  so  by  an 
action  of  transference,  which  is  an  ordinary  action,  the  only  question  being- 
the  competency  of  transferring.  To  raise  the  action  in  the  Slieriff  Court, 
the  Sheriff  must  have  juri.sdiction  as  well  over  the  representatives  as  in  the 
original  action  {Cameron,  1838,  16  S.  907).  As  representatives  wlio  take  up 
the  succession  must  eventually  a})pear,  tliey  seldom  or  never  refuse  to  do  so 
by  minute,  and  the  action  of  transference  is  accordingly  very  rare  in  practice. 

Iir.    JURI.SDICTION   rUIVATIVE  TO   SIIEIUri-    COUKT. 

As  to  subject-matter,  the  Sheriff  Court  has,  properly  speaking,  no  exclu- 
sive jurisdiction,  the  Court  of  Session  having  a  cumulative  jurisdiction 
in  prai-'tically  all  cases.  This  cumulative  jurisdiction  has,  however,  a 
jjccuniary  limit.     The  decision   of  the  Sheriff  Court  is  fiml  in  all  civil 


316  SPIERIFF;  SHERIFF  COURT 

actions  below  the  value  of  £25,  and  such  actions  cannot  be  raised  in  or 
appealed  to  the  Court  of  Session  (16  &  17  Vict.  c.  80,  s.  22  ;  Singer  Manu- 
facturing Co.,  1881,  8  R.  695;  Bruce,  1889,  17  R.  276;  StivUng  Far.  Council, 
1898,  25  II.  964).  This  provision  is,  however,  very  strictly  construed,  as 
appeal  is  competent  in  actions  of  interdict  and  actions  ad  facta  j)rcestanda 
(where  there  are  no  alternative  pecuniary  conclusions  under  £25,  which  are 
held  to  determine  the  value),  even  though  the  value  of  the  subject  in 
dispute  is  manifestly  below  £25  {Iiohertson,  1857,  19  D.  594;  Furves,  1867, 
5  M.  1003;  Henry,  1881,  8  R.  692).  There  is  also  appeal  where  the  sum 
claimed,  though  under  £25,  arises  as  the  balance  of  a  larger  claim  (see 
Inglis,  1859,  21  D.  822  ;  Brydon,  1864,  3  M.  7  ;  Drummond,  1869,  7  M.  347  ; 
Cunninglmni,  1883, 10  R.  441 ;  Buic,  1863,  2  M.  208  ;  Flemivg,  1881,  9  R.  11 ; 
Eohertson,  1857,  19  D.  594).  See  Appeal  to  Court  of  Session  feom  Sheriff 
Court. 

As  to  forms  of  remedy,  there  are  only  a  few  restricted  to  the  Sheriff 
Courts,  and  these  are  of  the  nature  of  diligence.  In  removings  and  ejections 
the  jurisdiction  of  the  Sheriff  is  privative,  and  there  is  no  appeal  in  a  case 
between  landlord  and  tenant  to  the  Court  of  Session ;  the  review  must  be 
by  suspension.  But  appeal  is  competent  where  the  person  ejected  is  not  a 
tenant,  or  where  decree  has  been  obtained  on  the  ground  of  no  title  to 
possess  {Clark,  1890, 17  E.  1064 ;  Barhour,  1891, 18  R.  610  ;  Fohb,  1895, 22  E. 
885).  So  in  bankruptcy,  the  Sheriff  has  almost  the  exclusive  jurisdiction 
under  mercantile  sei{uestrations  and  cessios,  and  there  are  some  miscel- 
laneous duties  which  are  his  because  there  is  no  one  else  to  perform  them, 
such  as  taking  temporary  charge  of  property  in  danger  of  injury  from 
neglect,  on  the  petition  of  any  person  interested  (e.g.  Gibson,  1895,  23  E. 
294;  Brock,  13  D.  1069). 

IV.  jurisdiction,  personal. 

Any  person,  native  or  foreigner,  may  be  pursuer,  and  questions  of  the 
personal  jurisdiction  of  the  Sheriff  Court  arise  only  in  the  case  of  defenders. 

A  defender,  subject  to  the  jurisdiction,  must  be  summoned  to  iho,  forum 
comjKhms.  Where,  in  a  sheriftUom,  owing  to  the  union  of  counties,  or  owing 
to  the  statutory  division  of  counties,  there  is  more  than  one  Court,  it  is  a 
matter  for  the  discretion  of  the  Sheriff  in  which  Court  of  the  sheriffdom  the 
defender  is  to  be  cidled  (Tait,  1891,  18  E.  1295);  the  pursuer  may  select 
his  forum,  but  the  forum  non  conveniens  may  be  rejected  (Sim,  1892,  19 
E.  665). 

Jurisdiction  over  a  defender  may  be  establislied  (1)  by  residence,  (2)  by 
his  having  a  place  of  business  within  the  territory,  (3)  by  reason  of  his 
liaving  entered  into  a  contract  whicli  is  to  be  performed  within  the  sheriffdom, 
(4)  by  his  having  committed  a  wrong  or  delict  within  the  sheriffdom,  (5)  by 
the  thing  in  dispute  being  situated  within  the  sheriffdom,  (6)  by  i  roroga- 
tion,  and  (7)  by  reconvention. 

1.  Residence. — A  person  is  subject  to  the  jurisdiction  by  leason  of  residence 
within  the  sheriffdom  for  forty  days.  The  nature  of  the  residence,  whether 
paid  for,  or  as  a  guest,  does  not  matter,  and  it  may  be  for  the  express 
purpose  of  creating  jurisdiction  {Jod,  1859,  21  D.  929;  Ersk.  i.  2.  16). 
"Where,  however,  residence  is  taken  up  aninio  rcmanendi  with  the  intention 
of  making  it  home,  jurisdiction  begins  with  residence,  and  it  is  not  necessary 
to  wait  for  the  lapse  of  forty  days  {Home,  1725,  M.  3704).  Nor  in  such  a 
case  need  the  residence  be  uninterrupted  {Irvine,  Vj Q1  ,^L  3703).  Juiis- 
diction  may  be  acquired  by  more  residences  than  one,  such  as  a  town  and 
a  country  house  {SjMlLsu-ood,  1701,  M.  4790),  in  which  case  the  principal 


SHERIFF;  SHERIFF  COURT  317 

residence,  or  the  one  at  wliich  the  defender  is  actually  residino;  at  the  time 
should  be  selected  {Gordon,  1702,  M.  o702).  Soldiers,  and  sailors,  if  they 
have  a  house  of  their  own,  may  be  cited  there,  and  if  not,  at  the  d'welliiio'- 
place  they  are  at  the  time  occupying,  whether  as  guests  or  lodgers,  and 
even  though  they  may  not  have  been  there  forty  days  (Broiv)i^  1845,  7 
D.  423).  All  persons  who  have  no  fixed  residence  may  be  cited  personally 
where  they  can  be  found  {Linn,  1881,  8  R.  849;  3I'Xivcn,  1834  12  S  453  • 
Zees,  1709,  M.  4791). 

The  jurisdiction  is  lost  at  once  if  the  residence  is  given  up  with  the 
view  of  acquiring  a  permanent  residence  in  another  sherifldom,  and  if  such 
a  permanent  residence  is  in  fact  taken  up.  If,  however,  a  person  leaves  for 
foreign  parts  or  to  go  about  Scotland  without  acquiring  another  fixed  abode, 
it  was  held  that  absence  must  be  for  forty  days,  and  that  his  former 
residence,  though  untenanted,  remained  for  that  time  the  proper  place  to 
eltelnm  {International  UxhihUion, 1891,  18  11.  843  (Ld.  Stormonth  Darlinn-) ; 
but  this  has  been  overruled  {Corstoiyhine,  1898,  36  S.  L.  R.  174;  sec 
Johnston,  23  D.  758;  Joel,  1859,  21  D.  929  (Ld.  Kiuloch);  Oalder,  Fac'.  Col 
55,  124). 

"Wives  arc  subject  to  the  jurisdiction  of  their  husbands'  residence  {Bingcr, 
1840,  2  1).  307).  Persons  under  age,  unless  maintaining  themselves  apart 
and  having  a  residence  of  their  own,  follow  tlie  jurisdiction  to  Avhich  the 
parents  are  subject  {Steel,  1881,  9  R.  160).  Trustees  or  executors  of  a 
person  deceased,  though  some  of  them  should  be  non-resident  in  the 
sheriffdom,  are  subject  to  the  jurisdiction  of  the  sherilfdom  where  the 
deceased  had  his  residence,  and  his  property,  or  where  lie  lived  and  his 
estate  is  wound  up  and  confirmation  granted  {Black,  1827,  0  S.  261; 
Thompson,  1895,  22  R.  866;  Hallidnrjs  Exrs.,  1886,  14  R.  251).  In  the 
Court  of  Session  it  has  been  held  that  it  has  jurisdiction  over  trustees 
though  none  of  them  is  in  Scotland  {M'Gennis,  1891,  18  R.  817). 

2.  riace  of  Business  loitliin  the  Territory. — At  common  law  this  is  a  ground 
of  jurisdiction  only  in  cases  of  companies  and  jiartnerships — the  partners, 
irrespective  of  where  they  may  reside,  being  subject,  while  the  partnership 
subsists,  to  the  jurisdiction  of  the  sheriffdom  in  whicli  the  ])lace  of  business 
is  situated  {Bishop,  1830,  8  S.  558;  Young,  1860,  22  I).  983;  Hctrris,  1875, 
2  R.  1003  ;  M'Eachern,  1824,  3  S.  211).  This  jurisdiction  has  been  extended 
by  the  Act  of  1876.  Any  person  carrying  on  a  trade  or  business  and 
having  a  ])lace  of  Ijusiness  within  a  county  is  subject  to  tlie  jurisdiction  of 
the  Sheriff  thereof  in  any  action,  notwithstanding  that  he  has  his  domicile 
in  another  county,  ]'rovided  he  is  cited  ])crsonally  or  at  his  ])lace  of 
business  (39  &  40  Vict.  c.  70,  s,  46).  He  must  be  actually  "carrying  on" 
a  business  (see  Ferguson,  1882,  9  R.  671),  and  not  merely  by  an  agent  or 
traveller  {Laidlav:,  1890,  17  R.  544).  Doubts,  which  hardly  ai)pear  to  be 
warranted,  have  been  expressed  as  to  whether  the  provision  covers  the  case 
of  a  farmer  (.U'Bri/,  1879,  7  R.  255);  as  to  what  is  a  "business,"  see  Muaf, 
1890,  17  R.  371.  There  must  be  either  personal  citation,  whether  within 
or  without  the  county,  or  citation  at  the  place  of  business,  by  leaving  the 
summons  there,  or  by  sending  it  there  by  post.  The  case  of  Mouai,18dly 
18  R.  876,  would  make  it  seem  that  it  would  be  sufficient  to  send  it  to  the 
resitlence  in  another  county,  but  the  rubric  of  tlic  case  goes  too  far;  it 
would  only  be  stilficient  in  the  event  of  the  ])erson  choosing  to  appear 
(39  &  40  Vict.  c.  70,  .s.  12  (2)  and  (:?)).  'I  hr  jurisdiction  extends  to  "any" 
action,  whether  arising  out  f)f  the  ]iaiti(ular  business,  or  within  the 
sheriffdom,  or  not  {Jack,  1885,  12  R.  1029).  At  common  law,  unle.'^s 
the  place  of  burliness  be  a  principal  one,  the  jurisdiction  is  restricted  to 


318  SHEEIFF;  SHERIFF  COUET 

cases  arising  within  the  slicriffdom  {Edward,  18G2,  4  Irv.  185).  By  the  Act 
it  is  in  the  power  of  the  Sheriff,  upon  sutticieut  cause  sliown,  to  remit  any 
action  to  the  Court  of  the  defender's  domicile  in  another  sheriffdom  (39  & 
-±0  Vict.  c.  70,  s.  4G). 

3.  Contract  to  he  performed  within  the  Sheriffdom.— K  person  entering 
into  a  contract  which  is  to  he  jierformed  within  a  sheriffdom  is  subject  to 
the  jurisdiction  of  that  sheriffdom,  provided  he  is  personally  cited  within 
it  {Bird,  1887,  2  S.  L.  Ep.  1  (J.  C.)).  It  does  not  matter  if  the  person  is  a 
foreigner,  if  cited  within  the  territory  {Pirie,  1867,  5  M.  497).  The  juris- 
diction is  co-extensive  with,  and  based  on  the  same  grounds  as  that  of  the 
Court  of  Session.  It  covers  only  actions  to  enforce,  or  arising  directly 
out  of  breach  of,  the  contract  {Sinclair,  1860,  22  D.  1475 ;  see  Logan,  1859, 

3  Irv.  323).  .      ,     .  ,  . 

4.  Dcliet  committed  within  the  Sheriffdom.— A  delict  committed  withm 
the  territory,  combined  with  personal  service,  will  give  jurisdiction  in 
an  action  of  damages  arising  out  of  the  delict  {Kcrmieh,  1871,  9  M.  984). 

5.  Property  situated  in  Sheriffdom.— {a)  Where  it  is  the  property  that 
is  in  dispute.  The  Sheriff  has  jurisdiction  in  actions  whose  subject-matter 
relates  to  heritable  matter  within  the  sheriffdom,  ratione  rei  sitce  {Mouat, 
1891,  18  R.  876;  Galross  Water  Supply,  1891,  19  E.  58).  Actions  relating 
to  questions  of  heritable  right  or  title,  or  to  division  of  commonties,  or 
division,  or  division  and  sale,  of  common  property,  if  raised  in  the  Sheriff 
Court,  must  be  raised  in  the  Court  of  the  county  in  which  the  property  in 
dispute  is  situated,  and  all  persons  against  whom  such  an  action  is  brought 
are  subject  to  the  jurisdiction  of  the  Sheriff  of  such  county  (40  &  41  Vict, 
c.  50,  s.  8).  An  action  of  furthcoming  or  of  multiplepoinding  may  be  com- 
petently raised  in  the  Sheriff  Court  to  whose  jurisdiction  the  arrestee  or 
the  holder  of  the  fund  or  subject  in  medio,^  as  the  case  may  be,  is  subject, 
although  the  common  debtor  may  not  reside  within  such  jurisdiction  (39 
&  40  Vict.  c.  70,  s.  47).  There  is  also  at  common  law,  jurisdiction  in 
some  cases  of  disputes  as  to  the  possession  or  interim  disposal  of  property 
situated  within  the  territory,  e.g.  Bannatync,  1841,  3  D.  429 ;  Williamson, 
1635,  M.  4815  ;  Scottish  Central  Ewy.  Co.,  1863,  1  M.  750  (Ld.  Deas). 

(&)  Where  the  property  is  not  the  subject  of  the  dispute.  The 
possession  of  moveable  property  of  itself  gives  no  jurisdiction,  except  by 
means  of  arrestment  ad  fundandam  jurisdietionem,  which  is  competent 
only  in  two  cases.  The  arrest  within  the  sheriffdom  of  a  ship  or 
other  vessel  belonging  to  a  foreigner,  or  of  which  he  is  part  owner  or 
master,  founds  jurisdiction,  in  any  action,  over  that  foreigner  provided  that 
the  action  is  one  which  would  be  competent  in  a  Sheriff  Court  against  a 
Scotchman  subject  to  the  jurisdiction  thereof  (40  S:  41  Vict.  c.  50,  s.  8). 
The  arrestment  of  any  kind  of  property  will  give  jurisdiction  over  a 
foreigner  in  maritime  actions  (11  Geo.  iv.  and  1  Will  iv.  c.  69,  s.  22 ;  1  &  2 
Vict.  c.  119,  s.  21;  Price,  Neill's  Forms,  p.  19;  Shaw,  1869,  7  M._  449; 
Bruhn,  1864,  2  M.  335).  An  arrestment  against  a  foreigner,  without 
personal  citation  in  Scotland,  does  not  found  jurisdiction  at  common  law 
{Harvey  Ilcdl  &  Co.,  1831,  9  S.  785;  Burn,  1828,  7  S.  194;  but  see  White, 
1846,  8  D.  952). 

The  possession  of  landed  property  of  itself  gives  no  jurisdiction  {31' Bey, 
1879,  7  E.  255),  except  in  the  case  of  special  services. 

6.  Prorogation. — Though  a  person  may  not  be  subject  on  any  of  the 
above  grounds,  he  may  prorogate  the  jurisdiction,  that  is  to  say,  consent 
to  it.  So  long  as  the  objection  is  merely  personal  to  the  defender,  it  may 
be  waived  either  expressly  or  by  implication,  by  written  consent  {Longmuir, 


SHERIFF;  SHEPJFF  COURT  319 

J850,  12  I).  92G;  JVri(jht's  Trs.,  1891,  18  E.  841),  or  by  craving  to  be 
sisted  as  defender  (Gill,  1895,  23  E.  371),  or  by  appearing  and  pleading 
without  taking  objection  (Service,  1627,  M.  7305 ;  White,  1846,  8  D.  952). 
But  no  amount  of  consent  will  enable  the  SheriiT  to  judge  in  matters  which 
are  not  competent  to  be  tried  in  the  Sheriff  Court  (Wylie,  1871,  10  j\r. 
253;  of.  Burgess  v.  Morton,  [1896]  X.  C.  136),  or  to  dispense  with  statutory 
formalities  (Forrest,  1845,  4  Bell's  A.  C.  197  ;  Ersk.  i.  2.  30).  If  the  matter 
is  one  not  competent  to  be  dealt  with  in  the  Sheriff  Court,  the  pn.rogation 
must  amount  to  a  reference,  and  the  matter  must  be  one  which  it  is 
competent  to  refer. 

7.  Reconvention. — When   a   defender   is   convened   in   an   action   by  a 
stranger,  he  may  by  reconvention  call  on  the  stranger  to  answer,  in  the 
Court  in  which  the  original  action  is  pending,  all  claims  that  he  may  have 
against  the  stranger,  arising  out  of  the  same  transaction ;  that  is,  not  only 
counterclaims  or  claims  of  compensation,  but  all  claims  ejusdcm  generis  or 
arising  ex  eodem  negotio.     The  object  is  to  place  pursuer  and  defender  on 
ecj^ual  terms,  as  if  both  were  living  in  the  sheriffdom,  and  to  ensure  that 
the   defender   shall   suffer  no   disadvantage    from    tlie    pursuer    being   a 
foreigner.     The  claims  must  be  either  of  the  same  kind  or  rising  out  of 
the  same  course  of  dealing  (see  Buss,  1888,  4  S.  L.  Ev.  309).     If  the  trans- 
actions  are   entirely   separate,   there    is   no  jurisdiction   by  reconvention 
(Thompson,  1862,  24  D.  331).     The  jurisdiction  is  intended  to  put  parties 
on  the  footing  of  both  being  resident  in  the  sheriffdom,  and  is  not,  therefore, 
available  to  give  a  defender  a  remedy  against  a  foreign  pursuer  that  he 
would  not  have  had  if  he  had  been  a  native  (Barr,  1879,  7  E.  247).     To 
found  jurisdiction  by  reconvention,  it  is  essential  that  the  action  by  the 
foreign  pursuer  should  be  still  in  Court  (M'Eicans  Trs.,  1852,  15  D.  265; 
Longicorth,  1868,  7  M.  70);  though  it  is  enough  if  it  is  only  on  the  question 
of  expenses  (Baillic,  1852,  15  D.  267;   Allan,  1894,  21   E.  866).      It  is 
doubtful  if  the  jurisdiction  continues  after  decree ;  the  foreign  pursuer  must 
at  least  be  making  use  of  the  machinery  of  the  Court  to  recover  his  debt ; 
but  see  Black  and  Knox,  1805,  M.  (App.  1,  "  Foreign,"  No.  7).     It  is  not 
always,  though  it  is  so  in  most  cases,  necessary  that  the  actio  conventionis 
should  precede  the  actio   reconventionis;   for,  where  an  action  was  raised 
against  a  foreign  defender,  and   he,  without  objecting,  at   once  raised  a 
counter  action,  it  was  held  too  late  for  him  to  object  thereafter  to  the 
jurisdiction  (Morrison,  1866,  5  M.  130).     All  the  rules  of  reconvention  in 
the  Court  of  Session  are  applicable  in  the  Sheriff  Court  in  the  case  of 
foreigners  outwith  Scotland,  Ijut  in  the  case  of  pursuers  outwith  the  sherilf- 
dom,  but  resident  in  Scotland,  the  jurisdiction  is  confined  to  the  case  of 
counter  actions  arising  out  of  the  same  facts  (see  Barr,  supra ;  Thompson, 
supra;   Vans,  1765,   M.   4840;  Goodwin,  1871,  10  M.  214;  StciL-art,Uro, 
17  Jour.  Jur.  607 ;  but  see  Graham,  1896,  S.  L.  T.  No.  75). 

v.    EXEMPTIONS   FROM   JURISDICTION. 

1.  TIlc  Croiun. — The  only  ex'emption  of  any  importance  is  the  Crown, 
which,  with  all  per.sonrs  acting  under  its  authority  (Ulack,  1833,  11  S.  378), 
is  exempt  altogether  from  t'.ic  jurisdiction  of  the  Sherilf  (Somerville,  1894, 
20  E.  1050).  All  actions  relating  to  the  revenue,  or  to  the  proceedings  of 
officers  of  the  revenue,  etc.,  were  confined  to  the  Court  of  Exchequer  by 
6  Anne,  c.  26,  s.  6,  and  if  such  an  action  is  raised  in  the  Slieriff  Court,  the 
remedy  is  by  application  to  the  Lord  Ordinary  in  Exchequer  Causes  to 
restrain  by  interdict  the  pursuer  from  proceeding  with  it  (19  &  20  Vict. 
c.  56,  s.  14). 


320  SHERIFF,  ADMINISTRATIVE  DUTIES  OF 

2.  The  College  of  Justice. — Members  of  the  College  of  Justice  formerly 
were  bat  are  not  now  exempt  from  the  jurisdiction  (13  &  14  Vict.  c.  36, 
s.  17;  IG  &  17  Vict.  c.  80,  s.  48). 

3.  County  and  Town  Councils  and  other  similar  Corporatio7is. — So  long 
as  these  confine  themselves  to  acting  within  their  statutory  powers,  they 
are  exempt  {Hunter,  1886,  14  R.  135;  see  Porter,  1889,  5  S.  L.  Rv.  430), 
but  not  otherwise  {MTavish,  1876,  3  R.  412).  When  they  come  to 
administrate  their  property,  or  to  be  parties  to  contracts,  etc.,  they  are 
just  as  subject  to  the  jurisdiction  in  questions  arising  out  of  these  matters 
as  any  private  person  {Lyall,  1859,  21  D.  1136;  Kintore,  1802,  M.  7673; 
Laivson,  1581,  M.  4811 ;  liolertson,  1823,  5  S.  511). 

4.  Other  Inferior  Judges.— These,  in  discharging  their  judicial  or 
administrative  functions,  statutory  or  at  common  law,  are  exempt  from 
the  jurisdiction  of  the  Sheriff,  to  whom  there  can  be  no  appeal  (see 
Buchanan,  1854,  17  D.  155). 

See  Dove  Wilson,  Practice ;  Jukisdiction  ;  Appeal  ;  Sheriff,  Executive 
Powers;  Declinature;  Small  Debt  Court;  Debts  Recovery  Court; 
Action  (in  Sheriff  Court)  ;  Admiralty  ;  Commissary  Court  ;  M'Glashan 
on  >Sherif  Court;  Ersk.  bk.  i.  tit.  4,  s.  1 ;  Bank.  ii.  551 ;  Mackay's  Practice, 
i.  190,  204  d  seq.,  227,  263. 

VI.  criminal  jurisdiction. 

The  general  principles  of  jurisdiction  in  criminal  cases  have  already  been 
treated  of  in  the  article  on  Justiciary,  High  Court  of  (q.v.).  Reference  is 
also  made  to  the  article  on  Criminal  Prosecution,  vol.  iii.  386. 

Sheriff,    Executive  and  Administrative    Duties 

of  Office. — The  Sheriff  is  an  Anglo-Saxon  office  which  leached  Scotland 
moulded  by  Anglo-Norman  law.  It  is  possible,  though  not  likely,  that 
there  may  have  been  Sheriffs  in  the  Anglo-Saxon  districts  of  Scotland 
daring  the  very  short  period  between  the  Celtic  Kingdom  and  the  com- 
mencement of  Norman  influence.  But  if  so,  no  trace  of  them  has  been 
preserved.  The  shire  reeve,  in  Anglo-Saxon  England,  was  the  king's 
Steward  of  the  district,  called  the  shire,  and  the  shire  seems  to  have  been 
a  district  of  varying  extent  into  which  the  larger  unit  of  a  kingdom  was 
sheared  or  divided  for  administrative  purposes.  The  Sherilf,  from  his 
earliest  origin,  discharged  executive,  including  military,  administrative, 
and  financial  functions,  as  well  as  civil  and  criminal  jurisdiction.  This 
combination  existed  before  the  separation  of  the  departments  of  government 
had  been  defined,  and  has  continued,  notwithstanding  tlie  many  changes  of 
more  than  ten  centuries,  down  to  the  present  day.  In  Scotland  the  Sheriff 
Principal  of  a  county  or  counties  retains  this  combined  character  in  a 
remarkable  degree.  It  has  been  doubted  by  some  whether  his  executive 
and  administrative  duties  do  not  exceed  in  number  and  importance 
those  he  discharges  as  a  judicial  officer.  In  truth,  the  two  departments 
are  so  variable  in  extent  in  different  districts,  and  so  disparate  in  character, 
that  they  cannot  be  contrasted  by  any  quantitative  measure. 

The  present  article  is  confined  to  a  brief  history  of  the  office  and  its 
executive  and  administrative  business,  although  there  are  points  in  which 
the  latter  and  his  judicial  business  very  nearly  approach  each  other.  It 
i^  necessary  to  give  a  sketch  of  the  history  of  the  office  in  order  properly 
to  understand  its  present  position  and  duties. 

Tlie  Saxon  Sheriff  combined  the  various  functions  of  his  modern 
representative.     He  presided  in  the  County  Court,  usually  along  with  the 


SHERIFF,  ADMINISTEATIVE  DUTIES  OF  321 

alderman  and  the  bishop,  but  sometimes  alone,  and  tried  both  civil  and 
criminal  causes.  As  leader  of  the  levy  of  ireemen,  he  was  responsible  for 
the  peace  of  the  Shire,  and  personally  or  by  subordinate  officers  carried 
the  law  into  execution,  when  resisted,  by  the  necessary  force.  He  presided 
over  the  execution  of  criminals,  as  well  as  of  writs  or  decrees.  He  was 
the  principal  local  fiscal  officer,  collecting  and  accounting  for  the  king's 
fines  and  dues.  He  may  have  been  originally  elective,  but  so  far  as 
records  show,  he  was  appointed  by  and  represented  the  king.  Prior  to  the 
Norman  Conquest,  Yorkshire  was  the  only  part  of  the  Northumbrian 
kingdom  which  had  a  Sheriff,  The  office  was  Southern  and  ]\Iidland 
English,  and  this  increases  the  improbability  tiiat  it  was  known  in  Scotland 
until  the  Norman  period.  The  etymology  of  the  word  is  contested  ;  but  as 
it  is  parallel  to  "  the  Steward,"  who,  in  Scotland  at  least,  was  distinguished 
from  Sheriff  only  as  the  administrator  and  local  judge  of  the  royal  domain 
lands,  while  the  Sheriff  was  the  local  judge  and  administrator  of  the  royal 
revenues  in  districts  wliere  the  land  was  held  by  his  vassals  and  not  by 
the  king  directly,  it  seems  probable  that  the  Sheritf  owed  his  name  to 
being  the  king's  reeve  (Anglo-Saxon,  Gcrcfa,  the  gritve).  Whatever  may 
be  the  derivation,  its  meaning  is  identical  with  steward  (Kemble,  Saxons  in 
England,  ii.  p.  151;  Stubbs,  Constitutional  History,  i.  p.  Ill;  Schniid, 
Glossary  in  Gesctze  cler  Angel  Saxcn).  The  Norman  kings  adopted  the 
Anglo-Saxon  Sheriff,  but  organised  the  office  after  the  model  of  the 
Norman  Vice  Comes,  and  to  some  extent  extended  his  jurisdiction. 
The  inquest,  adapted  by  Norman  law  to  so  many  purposes,  judicial  and 
fiscal,  was  directed  to  the  Sheriff,  although  he  was  assisted  by  a  local 
jury  in  making  his  returns.  The  Sheriff  became  definitely  the  king's 
representative  in  all  matters  "judicial,  military,  and  financial  in  his 
shire,"  and  his  importance  increased,  as  the  Norman  kings  were  more 
powerful  than  the  Anglo-Saxon.  The  office  became  hereditary  from  the 
time  of  William  the  Conqueror,  and  probably  down  to  the  date  of  the 
Inquest  of  Sheriffs  in  1170,  when  the  whole  Sheriffs  were  removed  by 
Henry  ir.,  as  they  were  a  second  time  by  Eichard  i.  Their  position 
was  regulated  and  restricted  by  Magna  Charta.  Their  office  was  made 
annual  by  Henry  in.  in  1258,  and  this,  tliongh  evaded  by  renewal  of 
appointments,  was  acknowledged  in  the  reign  of  Edward  iir.  in  1340, 
and  again  in  137G.  A  contest  between  royal  nomination  and  popular 
election  went  on  with  varied  issues,  but  the  right  remained  finally  with  the 
king. 

The  Sheriff  passed  into  Scotland  at  an  early  period  of  the  Norman 
influence.  He  first  appears  in  the  case  of  the  Sheriff  of  Scone,  of  which 
Malcolm  is  said  to  have  been  Sheriff  in  the  ruign  of  Alexander  i.,  and 
Ewayn  was  Sheriff  in  1164,  when  he  witnessed  the  charter  of  Malcolm  iv. 
to  the  Abbey  (A.  of  P.,  i.  3G56).  Several  charters  of  David  i.  are  directed  Vicc- 
Oomilihus,  and  tlic  office  is  often  mentioned  uiuler  that  name  in  tlic  J'cr/iam 
Majestatcm.  Tliey  were  called  Vice  Conutis  not  as  representing  the  Courts, 
for  they  always  represented  the  king,  but  because  they  liad  certain  duties 
within  their  slieriffdorns  similar  to  that  of  the  Courts  within  his  earldom. 
In  the  reign  of  Alexander  III.  the  office  extended  over  ne;uly  tlie  whole 
of  Scotland,  and  inquests  or  otlicr  writs  of  this  reign  exist  addressed  to 
the  Slierilfs  of  Edinburgh,  Linlithgow,  Haddington,  Poxburgh,  ]5er\vick, 
Lanark,  Wigton,  Dunil)arton,  l)innfries,  Selkirk,  Peebles,  Perth,  Fife, 
Kinro.ss,  Stirling,  Forfar,  Kincardine,  I'anlf,  El'^in,  Inverness,  Cromarty, 
and  Aberdeen,  Somewhat  meagre  accounts  of  Sliinilfs  are  to  be  found  in 
the  earliest  ICxchequer  Polls  of  12G3-G,  and  following  years.  Put  the  full 
3.  E.  —  vol,,  w.  21 


322  SHEEIFP,  ADMINISTRATIVE  DUTIES  OF 

accounts  do  not  exist  until  after  1358.  Id  these  accounts  the  Sheriff 
debits  himself  with  the  rents  of  Crown  lands,  the  escheats  of  malefactors, 
the  casualties  of  Crown  vassals,  and  the  issues  dues  and  fines  of  his  Courts, 
and  credits  himself  with  his  own  fee,  possibly  some  fines,  and  the  payments 
he  was  authorised  to  make  out  of  the  Crown  revenues,  accounting  for  the 
balance,  fixed  by  the  Auditors  of  Exchequer,  to  the  Great  Chamberlain,  an 
office  introduced  by  David  i.  The  ordinance  of  Edward  i.,  in  1305,  for  the 
government  of  Scotland  provided  that : — "  The  Sheriffs  ( Viscontes)  who 
live  on  the  land  shall  be  learned  men,  natives  of  Scotland  or  England, 
appointed  and  removable  by  the  Lieutenant  and  Chamberlain  of  the  king, 
and  should  do  the  duty  of  collecting  escheats,  and  should  be  the  most 
sufficient,  suitable,  and  profitable  men  that  could  be  found,  and  the  most 
profitable  for  the  king,  the  people,  and  for  maintaining  peace."  It  then 
gives  the  names  of  the  Sheriffs  in  the  counties :  Edinburgh,  Haddington, 
Linlithgow,  Peebles,  Selkirk,  Dumfries,  Wigton,  Ayr,  Lanark,  Dumbarton, 
Stirling,  Clackmannan,  Auchterarder,  Kinross,  Fife,  Perth,  Forfar,  Kincardine, 
Aberdeen,  Banff,  Elgin,  Forres,  and  Inverness,  Cromarty.  In  the  case  of 
Auchtei'arder  the  name  is  blank.  The  Sheriffs  of  Selkirk,  Kinross,  Cromarty, 
are  said  to  hold  the  office  in  fee  (de  fee),  that  is,  in  heritage  as  part  of 
their  estate. 

Although  appointments  by  the  English  king  could  not  hold  after  the 
independence  of  Scotland  was  established,  the  ordinance  is  important  as 
showing  how  nearly  complete  the  division  of  Scotland  into  sheriffdoms 
was,  and  how  identical  the  offices  were  in  England  and  Scotland  at  tlie 
beginning  of  the  14th  century.  The  index  of  the  Acts  of  Parliament  has 
more,  than  five  folio  columns  on  the  changes  made  on  the  office  of  Sheriff 
by  Scotch  Kings  and  Parliaments  prior  to  the  Parliamentary  Union.  It  is 
possible  only  to  refer  to  the  most  important  relating  to  his  executive  and 
administrative  duties.  The  remaining  sheriffdoms  not  mentioned  before 
Alexander  ill.  or  in  the  list  of  Edward  i.  were  created  on  or  before  the 
following  dates : — Argyll  in  1326,  but  there  had  been  earlier  Sheriffs  of 
Kintyre,  Lome,  and  Skye  in  1292.  Bute,  formerly  included  in  Kintyre, 
in  1388.  Eenfrew  before  1481.  Eoss  was  separated  from  Argyll  and 
Inverness,  and  Caithness  from  Inverness,  in  1503.  Orkney  and  Shetland 
was  made  a  sheriffdom  in  1581,  when  the  office  was  granted  to  the  Earl. 
Sutherland  was  created  a  distinct  sheriffdom  in  1G33,  but  the  Earl  of 
Sutherland  had  earlier  rights  of  regality,  sheriffship,  and  crownership  over 
a  large  part  of  the  present  county,  which  he  then  surrendered.  The 
jurisdiction  of  the  Lords  of  Eegality,  who  answered  to  the  English  palatine 
earls  and  bishops,  and  were  much  more  numerous,  excluded  the  Sheriff's 
jurisdiction,  and  the  parts  of  Sutherland  not  within  the  regality  were  till 
1633  included  in  the  Sheriffdom  of  Inverness.  The  earlier  statutes  relating 
to  the  Sheriff  are  chiefly  occupied  with  his  judicial  duties  in  criminal  law. 
But  his  administrative  duty  as  fiscal  officer,  who  collected  and  accounted 
for  every  branch  of  the  royal  revenue  in  the  county,  is  recognised  in  the 
end  of  the  13th  century,  both  in  the  Exchequer  Eolls  and  Acts  of  Parliament, 
and  no  doubt  existed  from  the  origin  of  the  office.  It  was  his  duty  as 
chief  executive  officer  to  proclaim  the  king's  laws,  and  to  see  that  both 
these  and  the  decrees  of  the  king's  Courts  were  duly  executed.  His  right 
and  duty  to  call  out  the  muster  of  the  shire  was  recognised  as  early  as 
James  i.  and  James  ii.,  M-hose  Acts  relating  to  the  Sheriff  almost  amount 
to  a  small  code,  amongst  which  it  is  singular  to  observe  the  duty  of  choosing 
an  oversman  in  arbitrations,  and,  what  w^as  specially  Scotch,  to  provide 
advocates  for  the  poor.     At  a  very  early  date  the  office  in  Scotland  became 


SHEEIFF,  ADMINI.STEATIVE  DUTIES  OF  323 

hereditary,  as  it  was  in  some  cases  at  the  time  of  Edward  First's  ordinance 
of  1292,  and  continued,  except  during  the  Commonwealth  (1G49,  c.  85), 
nntil  the  abolition  of  heritable  jmisdiction  after  the  Jacobite  Eebellion, 
notwithstanding  an  express  Act  in  1455  prohibiting  hereditary  offices. 
The  Scotch  nobility,  many  of  whom  held  the  office,  were  too  strong  for  the 
king,  and  hence  the  Scotch  Sheriffship  became  not  merely  hereditary,  but 
saleable  with  the  estate  to  which  it  was  attached,  v.hile  the  parallel 
English  office  became  annual,  as  the  English  High  Sheriil'ship  now  is. 
An  indirect  result  of  this  was  that  the  hereditary  Sheriff,  generally  incapable 
of  discharging  the  duties  of  the  office,  had  to  be  authorised  to  appoint  a 
depute  as  early  as  1357  (Act  Pari.  i.  492a),  for  whom  he  was  responsible 
(1469,  c.  2;  1540,  c.  8).  These  deputes  were  chosen  from  the  legal 
profession,  after  that  profession  became  organised  (Act  Pari.  1587,  c.  81  ; 
Act  Pari.  1592,  c.  28;  Act  Pari.  iii.  554).  By  the  last  Act  the  Sheriff- 
Deputes  and  theii"  clerks  ^Yere  to  be  examined  by  the  Court  of  Session. 
When  hereditary  jurisdiction  was  abolished,  the  Sheriffs-Depute,  having 
no  superior  officer,  succeeded  to  the  position  and  duties  of  the  principal 
Sheriff,  and  were  required  to  be  advocates  of  three  years'  standing  (20  Geo.  ii. 
c.  43).  Although  the  Crown  retained  power  to  appoint  a  High  Sheriff, 
which  it  has  not  exercised,  the  name  of  Sheriff-Depute  was  unfortunately 
still  used,  but  has  now  given  place  to  Sheriff  Principal,  which  is  recognised 
as  the  proper  designation  (9  Geo.  iv.  c.  29).  From  an  early  date  the 
Sheriff-Depute  had  occasionally  delegated  some  of  his  duties  to  an  unpaid 
substitute,  who  was  first  recognised  by  Act  of  Parliament  in  1825  (G  Geo.  iv. 
c.  23,  s.  9),  which  required  him  to  be  an  advocate  of  three  years'  standing, 
or  a  practising  agent  of  the  same  standing.  He  was  appointed  by  the  Sheriff 
from  1748  until  1877,  when  the  appointment  was  transferred  to  the  Crown 
(40  &  41  Vict.  c.  50),  and  must  be  an  advocate  or  law  agent  of  not  less 
than  five  years'  standing.  The  Sheriff-Substitute  is  required  to  reside 
within  the  sheriffdom  (1  &  2  Vict.  c.  119  ;  33  &  34  Vict.  c.  86).  The  Sheriif 
Principal,  with  the  exceptions  of  the  Sheriffs  of  Midlothian  and  Lanark,  is 
not,  and  may  practise  in  cases  not  arising  in  his  own  sheriffdom.  The 
presumption  is  that  any  duty  imposed  on  a  Sheriff  may  be  discharged  by 
either  Sheriff  {Flcminrj  v.  Dichson  and  Others,  1  Macplierson,  188).  In  the 
ordinary  case  the  Sheriff-Substitute  acts  as  judge  of  first  instance  and  of 
summary  criminal  business,  while  the  appellate  jurisdiction,  criminal  jury 
trials,  and  the  administrative  and  executive  functions  of  the  Shorilf  are 
discharged  by  him  unless  he  delegates  them  to  the  Sheriff-Substitute. 
The  practice  on  this  point  varies.  Where  the  county  is  remote  from 
Edinburgh,  or  the  Slieriff  Principal  undertakes  much  private  practice,  it 
is  common  to  leave  the  dLscharge  of  some  of  his  functions  to  the  resident 
Sheritf-Substitute  which  arc  discharged  in  other  counties  by  the  Sheriif 
Principal. 

The  executive,  including  administrative  and  fi.scal,  duties  of  the  Sheriif 
may  be  conveniently  divided  into,  I.,  wliat  may  be  called  the  original,  in 
most  cases  customary  or  common  law,  functions,  recognised  and  modified 
in  many  cases  by  Act  of  Parliament ;  and,  II.,  the  miscellaneous  duties  which 
have  been  imposed  on  him  by  Act  of  Parliament  .since  the  Union,  but  for 
imposing  whidi  some  justification  has  been  found  in  his  common  law 
function.s.  Tliis  latter  class  of  duties  has  in  England  and  Ireland  been 
attached  to  other  ollicials  created  for  the  purpose,  and  se])arately  paid, 
owing  to  the  fact  that  the  Sheriff  Principal  or  High  Sheriff  in  England 
and  Ireland  discharges  only  the  ceremonial  duty  of  receiving  the  judges 
on  circuit,  and  the  executive  duty  of  enforcing  writs  by  a  depute,  who 


324  SHERIFF,  ADMINISTRATIVE  DUTIES  OF 

takes  the  fees,  and  gives  a  bond  of  indemnity  to  the  High  Sheriff  if  sued 
for  damages. 

I.  The  original  or  common  law  duties  of  the  Sheriff  are  (1)  to  preserve 
the  peace  of  the  county  by  superintending  the  police,  and,  in  cases  of  riot  or 
extreme  risk  of  riot,  calling  in  the  military. 

The  superintendence  of  the  police  is  one  of  the  ordinary  duties  of  the 
Sheriff  Principal.  The  chief  constable  acts  under  his  orders,  and  in  most 
counties  renders  him  returns  of  all  apprehensions  within  the  county  (see 
20  &  21  Vict.  0.  72).  The  Sheriff  is  the  authority  to  determine  in  what 
Court  minor  criminal  cases  are  to  be  tried  {County  Council  of  Dumfries  v. 
Phyn,  1895,  22  R.  538),  and  as  member  of  the  standing  joint  committee 
of  tlie  county  council,  acts  with  the  council  in  all  matters  relating  to  the 
finance  of  the  police.  Tlie  calling  in  the  military,  derived  from  the  old 
duty  of  calling  out  the  muster  or  "Posse  Comitatus,  is  fortunately  now  rare, 
but  instances  have  been  known  in  recent  times,  as  in  the  case  of  the  Sheriff 
of  Lanark  at  the  time  of  the  riot  of  the  cotton  spinners,  and  the  Sheriff  of 
Inverness  at  the  time  of  the  riot  of  the  Skye  crofters. 

(2)  To  render  the  accounts  of  the  county  to  Exchequer.  This,  at  one 
time  one  of  the  most  onerous  duties  of  the  Sheriff  Principal,  and  which  led 
to  pecuniary  loss  through  defalcations  of  subordinate  otficers,  is  now  coui- 
paratively  unimportant,  as  most  of  the  accounts  due  to  or  by  the  Crown  in 
the  counties  are  paid  direct  to  or  by  the  Exchequer  or  other  Crown 
department.  But  the  Sheriff  has  still  to  account  for  the  fines  of  bis  Court, 
and  to  pay  salaries  and  disbursements  of  a  few  officials. 

(3)  To  appoint  Honorary  Sheriff-Substitutes  and  sheriff-officers,  and 
overlook  the  proper  discharge  of  their  duties.  The  Honorary  Substitute 
supplies  the  place,  in  temporary  illness  or  absence,  of  the  Sheriff-Substitute. 
But  in  case  of  longer  absence  a  legal  Substitute  requires  to  be  appointed 
and  paid,  as  the  Honorary  is  rarely  qualified  to  do  more  than  urgent 
sunnnary  business. 

(4)  To  preside  at  the  Fiars  Court,  by  which  the  average  fiars  or  market 
prices  for  the  year  in  the  county  are  fixed  (1584,  c.  22 ;  1689,  c.  24). 

(5)  To  receive  writs  and  conduct  the  proceedings  at  parliamentary 
elections  (Wight  on  Farliaments,  p.  304). 

(6)  To  superintend  the  preparation  of  the  register  of  parliamentary 
42lectors.  This  was  originally  done  in  the  head  Courts  of  the  Sheriff,  which 
the  freeholders  were  bound  to  attend  (see  Wight,  p.  59  and  pp.  131  d  seq.), 
but  now  by  the  Sheriffs  in  their  Registration  Courts,  in  some  by  the 
Sheriff  Principal  and  in  others  by  the  Sheriff-Substitute. 

(7)  The  Sheriff  Principal  has  to  attend  the  circuit  of  the  judges  to  which 
tlie  sheriffdom  belongs,  unless  his  attendance  is  dispensed  with.  He  has 
no  longer  to  attend  Parliament,  as  in  the  Parliament  of  Scotland  before 
the  Union,  but  is,  on  the  contrary,  disqualified  from  sitting  in  Parliament 
(21  Geo.  II.  c.  19),  or  from  voting  at  an  election  within  the  county. 

(8)  The  Sheriff'  Principal  is  in  some  counties  consulted  by  the  procurators- 
fiscal  in  difficult  cases,  and  the  Sheriff-Substitute  is  occasionally  called  in  to 
superintend  criminal  iwocognitions ;  but  these  are  survivals  of  an  older 
condition  of  the  law,  under  which  the  whole  business  of  the  preliminary 
investigation  was  conducted  by  the  Sheriffs,  which  has  now  been  transferred 
to  the  office  of  the  Lord  Advocate,  and  the  procurators-fiscal  under  the 
direction  of  that  office.  The  Lord  Advocate  and  Crown  Counsel  occasionally 
find  it  necessary  to  get  reports  from,  or  coufsult,  the  Sheriff  in  criminal 
matters. 

II.  The   additions    to    the    Sheriffs   duties   by   legislation   have  been 


SHEEIFF,  ADMINISTEATIYE  DUTIES  OF  325 

numerous ;  and  though  it  is  difficult  precisely  to  distinguish  those  which 
relate  to  the  judicial  department,  and  those  which  belong  to  the  executive 
or  administrative,  the  following  attempt  to  give  a  list  of  the  latter  has 
been  made.  These  additional  administrative  duties  practically  began  in  the 
middle  of  the  present  century,  and  have  gone  on  rapidly  increasing  down  to 
the  present  time  : — 

(1)  To  superintend  tlie  registers  kept  by  the  sheriff  clerk,  and  to 
examine  and  certify  them  yearly.  The  duty  of  seeing  that  the  ancient 
records  of  the  Sheriff  Court  are  preserved,  undoubtedly  also  belongs  to  the 
Sheriff  Principal  in  Scotland,  and  in  some  places  urgently  requires  attention, 
although  in  others  the  records  have  recently  been  put  in  order.  This  is 
part  of  his  customary  or  common  law  duties. 

(2)  To  superintend  the  preparation  of  the  Eoll  of  Jurors  (55  Geo.  ill. 
c.  42). 

(3)  To  act  as  unpaid  Commissioners  on  the  Xorthern  Lights 
Commission  Prison  Board  and  Fishery  Board. 

(4)  To  superintend  the  registers  of  births,  deaths,  and  marriages,  as  to 
erroneous  entries  and  the  duties  of  the  registrar  (1855,  17  &  18  Yict. 
c.  80). 

(5)  To  deal  with  closing  of  burial-grounds  (1855,  18  &  19  Vict.  c.  68), 
and  formation  of  new  burial-grounds  (31  &  32  Vict.  c.  96). 

(6)  The  registration  of  irregular  marriages  after  inquiry  before  the 
Sheriir(1856,  19  &  20  Vict.  c.  96). 

(7)  A  variety  of  proceedings  under  the  Police  (Scotland)  Acts,  1850, 1862, 
1892,  and  1893,  of  whicli  the  most  important  are  proceedings  for  adoption  of 
the  Acts,  formation  of  police  burghs,  and  revision  of  boundaries.  The 
reporting  with  reference  to  Provisional  Orders,  after  local  inquiries  by  the 
Sheriff,  botli  under  these  and  other  Acts. 

(8)  The  making  Orders  as  to  removal  of  paupers  (1862,  25  &  26  Vict. 
c.  113).  Proceedings  as  to  admission  and  discharge  of  lunatics  (25  &  26- 
Vict.  c.  54;  29  &  30  Vict.  c.  51). 

(9)  Various  proceedings  under  Public  HcaUh  (Scotland)  Acts,  1867  and 
1897,  of  which  the  most  important  are  the  formation  of  special  drainage  and 
special  water  districts  after  public  inquiry. 

(10)  Proceedings  under  Ecclesiastical  Buildings  Act,  1868,  as  to  building 
and  repair  of  churches  or  of  manses,  or  designing  sites  for  these,  or  ghbes, 
or  churchyards. 

(11)  Proceedings  under  Trades  Union  Act  of  1871  of  the  nature  of 
arbitration  as  to  disputes  between  masters  and  servants. 

(12)  Proceedings  under  Education  (Scotland)  Act  as  to  compulsory 
education  (35  &  36  Vict.  c.  62,  and  41  &  42  Vict.  c.  78).  _ 

(13)  Proceedings  or  inquiries  under  Coal  Mines  Pegnlations  Acts  (50 
&  51  Vict.  c.  58,  and  earlier  Acts). 

(14)  Proceedings  under  Factories  aiul  Worksliops  Act,  1878  (41  & 
42  Vict.  c.  116). 

(15)  Proceedings  under  Poads  and  l^ridges  (Scotland)  Act,  1878,  as  to 
valuation  of  debts  and  otherwise. 

(16)  In(]uiries  as  to  wrecks  under  IMcrchant  Slii])ping  Act  (39  c^-  40 
Vict.  c.  80  ;  42  &  43  Vict,  c  72). 

(17)  Various  proceedings  under  Local  Government  (Scotland)  Act,  1889. 

(18)  Proceedings  under  Burgh  Koads  Act,  1891  (54  &  55  Vict.  c.  32),  to 
settle  terms  as  to  burgh  assuming  manngcment  of  highways. 

(19)  Trials  under  Corrupt  ;ind  Illegal  Practices  Act,  1890,  as  to  local 
elections. 


326  SHEEIFF-OFFICER 

(20)  Proceedings  under  the  Fatal  Accident  Inquiry  Act,  1895,  By  this 
Act  the  duties  performed  by  the  coroner  in  England,  and  formerly  dis- 
charged by  Crown  Counsel  in  Scotland,  as  to  inquiries  in  the  first  instance 
as  to  sudden  deaths,  have  been  transferred  to  the  Sheriffs  in  Scotland, 

The  duties  of  the  Sheriff  have  been  increased  also  by  amalgamation. 
There  are  now  only  fifteen  Sheriff  Principals  for  thirty  counties.  The 
Sheriff  in  Scotland  discharges  the  duties  discharged  in  England  by  (1)  the 
High  Sheriff  and  Depute;  (2)  County  Court  judge  and  recorder;  (o)  Petty 
and  Quarter  Sessions,  except  licenses ;  (4)  revising  barrister ;  (5)  coroner ; 
(6)  Commissioners  appointed  by  the  Central  Government  Departments, 
though  Special  Commissioners  are  sometimes  appointed  ;  (7)  Commissioners 
to  inquire  and  report  on  Provisional  Orders ;  (8)  Court  for  trial  of  local 
election  petitions.  While  he  has  no  official  like  the  County  Court 
Eegistrar,  he  has  the  assistance  of  one  or  more  substitutes,  who  act  in  civil 
cases  as  judges  of  first  instance,  subject  to  appeal  to  the  Sheriff,  and 
discharge  the  summary  criminal  business  and  such  administrative  or  other 
.business  as  may  be  assigned  by  the  Sheriff, 

She  riff -Officer. — The  persons  by  whom  writs  are  served  and 
executions  are  carried  out  in  the  Sheriff  Courts  are  called  Sheriff-Officers. 
They  are  appointed  by  the  Sheriff,  and  hold  office  during  liis  pleasure.  They 
are  required  to  find  caution  for  the  performance  of  their  duties. — [Dove 
Wilson,  Sheriff  Court  Practice,  44]     See  Messengees-at-Akms. 

Ship  ;  Shipping'. — This  article  proposes  to  deal  very  briefly 
with  those  parts  of  the  subject  not  separately  considered. 

The  law  is  the  law  maritime  as  administered  by  tire  Courts  in  Scotland ; 
but  that  law  is,  in  general,  in  substance  that  of  the  law  of  the  United 
Kingdom  (Currie,  24  P.  (H.  L.)  11).  It  is  to  a  material  extent  codified 
and  contained  in  the  IMerchant  Shipping  Act,  1894.  It  will  be  convenient 
to  follow,  when  practicable,  the  order  of  tlie  Act,  but  it  is  not  proposed 
even  to  summarise  the  statutory  provisions,  as  where  questions  arise  the 
Act  itself  must  be  looked  at,  but  only  to  indicate  the  matters  which 
it  regulates. 

The  Act  is  divided  into  fourteen  parts — 

I.  Eegistry. 

II.  Masters  and  Seamen.     (Sec  SiiirMASTER ;  Seamen.) 

III.  Passenger  and  Emigrant  Ships. 

IV.  Fishing  Boats.     (Fishings.) 
V.  Safety. 

VI.  Special  Shipping  Inquiries  and  Courts. 
VII.  Delivery  of  Goods.     (See  Charter;  General  Ship;  etc.) 
VIII.  Liability  of  Shipowners. 
JX.  Wreck  and  Salvage.    (See  Wreck  ;  Salvage.) 

X,  Pilotage.     (See  Pilot.) 
XL  Lighthouses. 
XII.  Mercantile  Marine  Fund, 

XIII.  Legal  Proceedings. 

XIV.  Supplemental. 

A  ship  is  defined,  for  the  purposes  of  the  Act,  as  meaning  every 
description  of  vessel  used  in  navigation  not  propelled  by  oars,  while 
"  vessel "  has  an  even  wider  meaning  (s.  742 ;  see  Carsc,  22  E,  475), 


SHIP;  SHIPnXG  327 

Eegisters  of  shipping  are  provided,  and  are  kept,  at  ports  in  the 
United  Kingdom  and  Colonies.  In  certain  cases  the  port  of  registry  may- 
be a  foreign  port  (s.  87).  All  British  ships,  with  unimportant  exceptions, 
fall  to  be  entered  in  the  register  (s.  3).  The  ships  have  to  be  surveyed, 
measured,  and  the  tonnage  ascertained  preparatory  to  this,  and  various 
declarations  have  to  be  made,  acts  done,  and  conditions  performed  (ss.  6 
to  11,  77  et  seq.).  In  the  case  of  the  first  registry  of  a  British  built  ship, 
one  of  the  conditions  of  registry  is  production  of  a  certificate  containing 
certain  particulars  from  the  builder. 

The  contract  of  shipbuilding  is  an  executory  contract  of  _  sale,  the 
conditions  of  which  are  dependent  on  the  bargain.  In  the  ordinary  case 
the  builder  retains  the  risk  until  he  delivers  the  ship  and  insures  for  all 
concerned  (see  Brciccr,  20  E.  230).  At  the  same  time  it  is  bargained  that 
the  property  passes  as  soon  as  the  first  instalment  of  the  price  is  paid. 
This  extends  not  only  to  the  unfinished  ship,  but  to  materials  appro- 
priated to  its  construction.  Prior  to  the  Sale  of  Goods  Act,  the  property 
in  such  materials  did  not  pass  because  there  was  no  delivery.  The  pre- 
sumption is  still  against  the  property  passing,  in  cases  where  the  seller  has 
work  to  do  on  the  subject,  until  the  work  is  done ;  but  it  is  submitted  that 
under  the  Sale  of  Goods  Act,  if  the  agreement  clearly  bargains  that  the 
materials,  when  appropriated,  are  to  become  the  property  of  the  purchaser, 
this  agreement  falls  to  be  given  efiect  to  (see  Scath,  13  li.  (H.  L.)  57). 
The  builder  only  delivers  his  certificate  when  ready  to  make  over  the 
ship  and  part  with  his  lien  for  the  price. 

On  completion  of  the  registry,  the  registrar  delivers  to  the  owner 
a  certificate  of  registry,  which  is  used  in  connection  with  the  navi- 
gation of  the  ship  (ss.  14  ct  scq.).  The  Act  of  course  provides  for 
changes  in  the  registry  due  to  altered  circumstances  (see  Duthie,  20  E. 

241).° 

British  ships  must  be  marked  witli  (s.  7)  and  descnbed^  by  (s.  -40 
their  registered  name.  The  name,  however,  can  be  altered  with  consent 
of  the  Board  of  Trade,  and  after  advertisement.  They  must  use,  as  required 
by  the  Act,  the  Mercantile  British  Hag  (ss.  68  et  seq.) ;  and  they  must  be 
owned  by  British  subjects,  as  defined  by  the  Act  (s.  1);  and  if  unquali- 
fied persons  own  an  interest  in  them,  that  interest  can  be  furfeited  (s._71). 
If  such  persons  acquire  the  interest  by  succession,  marriage,  or  will,  provision 
is  made  for  how  they  are  to  dispose  of  it  (s.  28).  Unqualified  persons  can 
be  members  of  corporations,  or  hold  shares  in  companies  incorporated 
under  the  Companies  Acts,  which  own  British  sliips.  These  ships  arc 
divided  into  sixty-four  shares,  and  no  fraction  of  a  sliarc  can  be  transferred ; 
not  more  than  live  persons  can  be  registered  as  joint  owners  of  a  share 
or  shares  (s.  5).  .  , 

Ships  or  shares  in  sliips  must  be  transferred  l)y  bills  of  sale  m  the  iorni 
prescriljed  under  auth(jrity  of  the  Act  (ss.  24  ct  scq.),  which  have  to  be 
entered  in  the  register,  and  are  so  entered  in  tlie  order  they  are  ].niduccd 
to  the  registrar.  The  result  is  tliat  of  two  bills  of  sale  granted  l)y  a 
registered  shipfnvncr,  tlie  one  first  produced  to  the  registrar,  even  though 
second  in  date,  takrs  ].ieferenco,  nKsximwi;  bona  fides  on  the  part  of  the 

transferee. 

Mortgages  must  also  be  granted  on  statutory  forms,  and  be  entered  on 
the  regisler  (ss.  24  ct  scq.).  Thoy  take  precedence  according  to  the  date 
of  recording  them,  notwithstanding  notice  (s.  33). 

The  registrar  is  proliihited  from  receiving  notice  of  any  trust  with 
re^'ard  to  ships;  and  it  is  provided  that  the  registered  owner  shall  have 


328  SHIP;  SHIPPING 

power  absolutely  to  dispose  of  the  ship  or  share  (s.  56).  But  in  a 
question  between  the  transferor  or  his  creditors,  an  miregistered  bill  of 
sale  or  mortgage  receives  full  effect  (s.  57).  So  where  the  person 
entered  on  the  register  holds  truly  for  some  other  person, — qualified  to 
hold  an  interest  in  British  ships, — the  latter  can  enforce  his  interests  (see 
Duthic,  nt  svjvri).  He  is  also  sul)ject  to  liability  as  owner  as  regards  offences 
against  the  Act  (s.  58). 

In  cases  where  it  is  wished  that  an  owner  of  a  ship,  or  shares  therein, 
should  sell  or  mortgage  his  interest  abroad,  provision  is  made  for  his 
granting  a  certificate  of  sale  or  mortgage — truly  a  power  of  attorney — 
under  wdiich  this  can  be  done — the  certificate  being  entered  on  the  register 
(ss.  38  et  scq.). 

Mortgages  of  ships  require  further  consideration.  "  Except  so  far  as 
may  be  necessary  for  making  a  mortgaged  ship  or  share  available  as  a 
security  for  the  mortgage  debt,  the  mortgagee  shall  not,  by  reason  of  the 
mortgage,  be  deemed  the  owner  of  the  ship  or  share,  nor  shall  the  mortgagor 
be  deemed  to  have  ceased  to  be  the  owner  thereof "  (s.  34).  So  long  as 
the  mortgagee  does  not  enter  into  possession,  he  incnrs  no  personal 
liability  in  respect  of  the  ship,  though,  as  we  sliall  see,  the  ship  itself  may 
be  subjected  to  various  preferable  charges  which  may  impair  the  security. 
The  mortgagor,  notwithstanding  the  mortgage,  can  continne  to  use  the  ship 
in  a  reasonable  and  ordinary  way.  He  is  not  bound  to  consider  the 
mortgagee  as  regards  the  freight  or  hire  he  charges  for  carriage  in  the  ship, 
and  may  charge  a  nominal  freight,  or  carry  his  own  goods  freight  free 
(Keith,  1877,  2  App.  Ca.,  per  Ld.  Cairns,  p.  045).  So  long  as  the  mortgagee 
is  not  in  a  position  to  take  possession,  or  does  not  do  so,  he  cannot  restrain 
the  mortgagor  using  the  ship  as  his  own,  e.g.  he  cannot  restrain  her  being 
sent  out  of  the  jurisdiction  (The  Fanchon,  5  P.  D.  173  ;  see  also  Collins, 
34  L.  J.  Ch.  190).  Further,  the  mortgagor  can  in  ordinary  course  have 
the  ship  repaired,  and  subject  her  to  the  lien  of  the  repairer  for  his 
account  preferable  to  the  mortgage  (Williams,  10  C.  B.  N.  S.  417).  Nice 
questions,  however,  arise  when  the  mortgagee  takes  possession.  This  he 
can  do  in  any  reasonable  way.  The  usual  course  is  to  put  a  representative 
on  board ;  but  when  the  sliip  was  at  sea,  notice  to  the  charterer  to  pay 
freight  to  the  mortgagee  was  held  equivalent  to  taking  possession  (Busden, 
L.  K.  3  Ex.  269). 

On  taking  possession,  the  mortgagee  to  a  large  extent  finds  himself  in 
the  position  of  owner,  and  subject  to  his  liabilities.  The  question  how 
far  he  is  bound  to  implement  existing  cliarters,  lawfully  made  by  the 
mortgagor,  cannot  be  said  to  be  clearly  settled.  He  is  clearly  not  bound 
by  unusual  engagements  which  impair  the  security  (The  Celtic  King,  [1894] 
P.  175,  and  cases  there  referred  to).  Farther,  it  seems  difficult  to  say  that, 
being  under  no  personal  contract  to  the  charterer,  he  is  under  obligation 
to  carry  out  a  charter,  by,  e.g.,  supplying  provisions  or  coals  at  his  own 
expense.  It  would  rather  seem  that,  in  the  ordinary  case,  if  he  elects  to 
sell  he  can  do  so,  and  disregard  at  all  events  any  charter  not  yet  embarked 
on.  The  matter  may  be  different  where  things  are  not  entire — where  the 
goods  are  on  board  or  the  voyage  part  performed.  Suppose  the  mortgagor 
was  in  a  position  to  offer  to  be  at  the  expense  of  fulfilling  a  charter 
lav\^fully  made,  it  may  be  the  mortgagee  would  be  bound  to  agree  to  this. 
It  seems  that  the  mortgagee  can  implement,  if  he  choose,  any  charter  made 
by  the  mortgagor.  JMoreover,  it  would  seem  that  a  mortgagee,  in  place 
of  at  once  selling,  may  use  in  a  reasonable  and  judicious  way"  the  subject 
of  his  mortgage,  though  it  has  been  said  by  high  authority'^  that  in  this 


SHir;  SHIPPING  329 

matter  he  must  act  with  great  caution  (ALhott,  13th  ed.,  p.  45).  If 
he  elects  so  to  use  her,  ^Yhen  she  is  subject  to  an  existing  charter 
lawfully  made  by  the  mortgagor,  it  is  thought  he  must  fulfil  this  charter, 
or  at  least  can  be  restrained  from  using  her  otherwise  {Collins,  ut 
supra). 

A  mortgagee  in  possession  has  a  preferable  claim  to  an  assignee  to 
freight  unpaid  at  the  time  he  enters  on  possession — at  all  events  if  the 
freight  has  not  then  been  earned  {Brown,  L.  E.  3  Ch.  App.  597 ;  Liverpool 
Marine,  L.  E.  7  Ch.  App.  507).  Mortgagees  of  ships  can  in  England  sell 
their  security  publicly  or  privately.  The  practice  in  Scotland  is  the  same  ; 
and  though  in  general  the  holder  of  a  security  can  only  realise  by 
public  sale  under  warrant  of  the  Court,  it  is  submitted  the  practice  will 
1)8  upheld  as  lawful  (see  sec.  35).  The  mortgagees  must  act  reasonably 
in  the  interests  of  all  concerned,  and  if  they  do  not,  will  be  liable  in 
damages. 

Mortgagees  of  shares  in  a  ship  and  not  of  a  whole  ship  have  more 
difficulty  in  realising  their  security.  Second  mortgagees  of  ships,  as  of 
other  property,  are  in  a  more  or  less  imsatisfactory  position.  In  England 
they  are  held  only  to  have  an  equitable  interest,  and  are,  e.g.,  postponed  to 
an  assignee  to  freight  (see  Abbott  both  as  to  shares  and  second  mortgagees, 
pp.  48,  49).  In  Scotland,  it  is  suggested,  the  technical  rules  which  bring 
about  this  result  in  England  may  not  bo  held  to  apply,  and  a  second 
mortgagee  may  be  held  to  stand  in  the  same  position  as  a  first  mortgagee, 
subject  only  to  his  lights.     IMortgagcs  can  be  assigned. 

A  mortgagee  cannot  take  possession  until  tliere  has  been  default  on 
the  part  of  the  mortgagor  in  payment,  or  a  breach  of  his  duty  in  respect 
of  the  mortgage  by  his  unlawfidly  impairing  the  subject  of  security. 

In  many  cases,  apart  from  the  mortgage,  agreements  are  made  which 
provide  for  insurance  of  the  ship,  the  mode  of  payment,  the  maintenance 
of  the  ship  in  good  order,  the  circumstances  under  which  the  mortgagee 
can  take  possession,  etc.  The  Court  will  give  effect  to  these  agreements. 
So  in  one  case  where  the  owner  had  undertaken  to  keep  the  ship  insured, 
interdict  was  granted  against  his  sailing  uninsured,  even  in  a  question  with 
the  charterer  from  the  shipowner  {Laming,  10  E.  828). 

Apart  from  mortgages,  ships  may  be  burdened  by  various  liens  and 
hypothecs.  In  most  cases  these  take  preference  over  mortgages.  (See 
Hypothec.) 

Bottomry  bonds  have  already  been  treated  of  (see  Bottomry).  Seamen 
have  a  preference  for  their  wages  (see  Sea.men).  Shipmaster  not  only  for 
wages,  but  for  disbursements  and  liabilities  i)r()]ierly  incurred  liy  biiii  on 
account  of  the  ship  (.see  Siiii'MAstek;  also  The  liipon  City,  [1897]  1*.  22G). 
There  is  a  maritime  lien  in  resi)ect  of  salvage  (see  Salvace).  AVhere 
sliips  are  in  collision,  tliere  is  a  lien  for  the  damage  done  against  the  wrong- 
doing ship,  which  alfects  a  mortgagee  (see  CoLLisio.N  ;  also  Carrie,  vt  supra ; 
The  liipon  Citg,  vl  sv]mi.  (Jf.  Ld.  Kiimear's  dicta  in  Clarh,  23  E.  at  ]).  448. 
It  is  respectfidly  suggested  ^Ir.  Justice  Barnes' judgment  correctly  explains 
the  varying  decisions).  A  similar  jtreference  is  given  by  statutes — local 
and  general — in  cases  of  damage  to  harbours  and  docks,  ux  of  ol)struction 
to  cliannels;  also  ffu*  ])ort,  river,  and  other  dues.  Where  the  preference 
depends  on  statute,  tlie  exact  terms  need  to  l)e  carefully  examined,  to 
ascertain  the  extent  of  the  preference  (sec  Collision;  Pouts  and 
Haurouus). 

In  England  it  has  now  been  held  that  lliore  is  no  preference  for 
necessaries  supplied  to  a  British  ship  even  i:i  a  foreign  ]ioi  t.     Necessaries 


330  SHIP;  SHirPING 

include  necessary  repairs,  and  such  things  as  coals,  provisions  or  other 
supplies  to  enable  the  voyage  to  be  completed,  and  payments  of  dues 
without  which  the  ship  would  not  be  allowed  to  leave  the  port.  In  many 
foreign  countries,  including  the  United  States,  the  rule  is,  there  is  a 
maritime  lien  or  preferable  claim  for  necessaries,  at  all  events  where 
supx^lied  to  a  ship  at  a  foreign  port.  The  weight  of  Scotch  legal  authority 
is  in  favour  of  this  view,  so  far  as  a  ship  at  a  foreign  port  is  concerned 
(Bell,  Prm.  s.  1398;  Com.  (M'Laren's  ed.)  vol.  i.  p.  575;  Ersk.  iii.  1.  34). 
But  having  rcfrard  to  the  view  that  the  law  maritime  of  the  United 
Kingdom  is  in  substance  the  same  in  Scotland  as  in  England,  it  seems 
probable  the  English  view  will  prevail.  Two  facts  seem  to  favour  this 
conclusion :  (1)  that  in  Scotland  originally  it  was  held  the  lien  extended  to  a 
home  port,  but  this  was  given  up  in  deference  to  English  authority,  and 
(2)  that  the  164th  section,  subsection  2  of  the  Act,  which  gives  the  master  a 
preference  for  his  disbursements  and  liabilities,  now  extends  to  Scotland. 
Originally  it  was  an  English  Act,  which  was  passed  partly  to  remedy  the 
state  of  matters  caused  by  the  judgments  declaring  there  was  no  maritime 
lien.  In  point  of  fact  the  operation  of  the  statute  does,  in  a  number  of 
cases,  secure  suppliers  of  necessaries  who  take  orders  from  a  master,  as  they 
make  the  master  enforce  his  preference  in  their  interests  (see  The  Bijpon 
City,  ut  sujjra,  and  cases  there  referred  to). 

Ship-repairers,  dock-keepers,  and  other  persons  who  have  the  ship  in 
their  possession,  have  a  lien  proper  for  their  charges,  so  long  as  they  retain 
possession  (see  Ross  &  Duncan,  13  R.  185). 

Maritime  liens,  so  long  as  these  are  reasonably  soon  enforced,  affect  all 
persons  into  whose  hands  the  ship  comes. 

Questions  of  priority  may  arise  between  maritime  liens  and  liens 
proper  inter  se,  but  for  the  rules  on  these  points  reference  must  be  made 
to  the  article  on  Hypothec  and  to  text-books  (see,  e.g.,  M'Lachlan  on 
Shipping,  4th  ed.,  pp.  738  et  scq.). 

Owners  of  shares  in  ships  are  part  owners  of  a  common  subject. 
According  to  the  common  law  of  Scotland,  in  that  case  the  consent  of  each, 
express  or  implied,  is  required  to  acts  of  management  (see  Common 
Propeety).  This  was,  if  it  is  not,  the  law  as  to  part  ownership  in  ships. 
In  this  view  an  owner  of  a  single  share  in  a  ship  could  paralyse  her  use, 
and  the  only  remedy  open  to  his  co-owners  is  by  process  of  set  and  sale  to 
get  rid  of  liim  (see  the  case  of  Anderson,  22  R.  105,  for  recent  example  of 
action).  That  process  is  based  on  an  offer  by  the  pursuer  to  buy  the 
defender's  shares  or  sell  his  own  at  a  price,  and  craves  warrant  to  sell  the 
ship  failing  acceptance. 

In  England  a  majority  can  use  the  ship — finding  security  to  a  dissenting 
minority  that  no  damage  shall  accrue  by  the  use.  There  is,  so  far  as  the 
writer  knows,  no  precedent  for  similar  practice  here,  but  perhaps  such 
might  be  made  if  occasion  arose.  There  is  no  doubt  that  in  jiractice,  in 
Scotland  as  well  as  in  England,  majority  shares  in  a  ship  carry  with  them 
the  mangement,  and  so  fetch  a  higher  price  (see  cases  of  Iknnct,  17  R. 
•800,  and  Bcnnct,  18  Pt.  955,  as  to  majority  and  minority  rights). 

Whether  a  sale  of  a  ship  would  be  ordered  in  a  case  where  the  pursuers 
<lid  not  offer  to  sell  to  the  defenders  at  a  price,  is  another  question  which 
is  open  to  doubt. 

Part  owners  arc,  in  any  case,  qud  owners,  liable  only  for  their  own  share 
■of  expense  or  liability  incurred  in  connection  with  the  ship,  unless,  expressly 
■or  l)y  implication,  they  authorise  their  credit  to  be  pledged  jointly  and 
severally.     In  general,  they  are  liable  for  damage  done  by  the  ship  jointly 


SHIP;  SHirPIXG  331 

and  severally,  e.g.  in  cases  of  collision.  In  the  vast  majority  of  cases  part 
owners  acquire  shares  in  ships  in  order  to  join  in  making  profit  out  of  their 
use.  In  this  latter  object  they  are  joint  adventurers,  and  are  liable  jointly 
and  severally  for  the  debts  of  the  adventure.  A  manager  or  managing 
owner  is  employed,  who  insures  the  ship,  orders  all  necessary  repairs, 
charters  her,  and  carries  on  the  business  of  the  adventure.  He  renders 
accounts  to  the  part  owners,  showing  his  transactions,  and  bringing  out  a 
profit  or  loss.  In  all  these  cases,  so  long  as  the  agent  acts  within  the 
mandate  granted  to  him,  expressly  or  by  implication,  the  part  owners  are 
liable  jointly  and  severally.  Not  unfrequently,  on  the  bankruptcy  of  the 
managing  owners,  accounts  for  which  they  had  money  in  hand  are  found 
unpaid,  and  large  liabilities  fall  to  be  met  by  the  solvent  owners.  The 
latter  will,  however,  not  be  liable  for  extraordinary  acts  of  the  managing 
owners — for  large  structural  alterations  not  authorised,  e.g.  {Steele  &  Co.,  o  E. 
1003).  The  question,  too,  may  be  raised  whether  the  act  was  done  as  part 
of  the  joint  adventure  or  as  a  dealing  with  the  common  property,  in  which 
case  each  owner,  as  we  have  seen,  is  only  in  the  ordinary  case  liable 
2^0  rata. 

The  powers  of  a  manager  or  ship's-husband  are  separately  treated  of  (see 
Ship's-Husband).  By  the  Act  a  managing  owner  falls  to  be  registered  for 
all  ships  (s.  59),  but  his  authority  depends  on  the  agreement  made;  and 
the  mere  fact  that  he  is  registered  managing  owner  does  not  entitle 
those  dealing  with  him  to  assume  that  he  has  authority  to  pledge  the  credit 
of  his  co-owners  {Frazcr,  6  L.  E.  Q.  B.  D.  9G).  So  the  fact  that  a  person  is 
registered  as  owner  or  part  owner  of  a  ship  does  not  involve  him,  in  the 
general  case,  in  liabilities  for  supplies  to  or  engagements  of  the  ship,  or 
personally  for  acts  done  ])y  her  {Clarice,  ut  supra).  He  must  be  shown  to  have 
authorised  the  transaction  in  connection  with  which  the  claim  is  made  on 
him  (see  Ilibhs,  L.  E.  1  Q.  B.  534,  and  cases  there  referred  to). 

The  subjects  of  Shipmasters  and  Seamen  are  separately  treated. 

Ships  are  employed  in  every  variety  of  service.  Some  arc  under  engage- 
ment to  aid,  if  called  on,  in  naval  defence,  some  carry  mails,  some  are 
used  as  transports.  There  is  a  large  fleet  engaged  in  the  fishing  industries, 
another  in  towage  of  otlier  ships.  Many  carry  passengers.  Tlio  bulk 
carry  goods. 

The  contract  of  affreightment  of  goods  in  ships  has  been  considered  (see 
Charter;  General  Snip;  etc.).  The  seventh  part  of  the  INIerchant 
Shipping  Act,  1894,  is  there  referred  to  (Charter;  Freight;  Lien). 

The°contract  to  carry  passengers  is,  apart  from  statute,  ruleil  by  the 
same  general  princi[iles  as  that  to  carry  goods.  In  the  absence  of  special 
stipulations,  the  shipowners  will  be  answerable  for  loss  or  injury  to  the 
possengers  due  to  any  want  of  care  on  the  part  of  those  for  whom  they  are 
responsible.  In  practice,  they  relieve  themselves  from  liability  to  the  same 
extent  as  with  goods.  The  statute,  however,  makes  special  provision  for  the 
safety  of  passeiig(;rs  (ss.  2G7-3G8). 

All  jassengcr  steamers  carrying  more  tlian  twelve  passengers  must  be 
surveyed  and  certified  as  fit  to  carry  passengers  (s.  271).  In  the  certilicato 
the  number  of  passengers  the  steamer  is  fit  to  carry  is  stati'd,  and  this 
must  not  be  exceeded  (s.  274).  The  Act  has  various  further  provisions 
with  regard  to  the  equipment  of  the  steamers  and  other  matters.  It  also 
makes  'enactments  with  reference  to  order  nn  iIk;  ])art  of  passengers 
<S3.  287,  288).  There  are  elalKn-ate  ])rovisious  with  regard  to  emigrant 
ships.  These  ships  inchi(U3  all  ships  whicli  carry  more  tlian  fifty  slcenige 
passengers    (s.    2G8).        I'rovision    is    made    as    to    survey,   e(|uii)ments, 


332  SHIP;  SHIPPING 

provisions,  medical  inspection,  the  form  of  contracts,  the  discharge  of 
passengers  and  how  they  are  to  he  dealt  with  in  case  of  wreck,  and  various 
ol'lier  matters. 

The  contract  of  towage  rests  on  the  bargain  and  is  a  contract  of  hire 
of  power,  to  which  the  ordinary  rules  of  law  are  applicable.  Special 
questions  have  mainly  arisen  with  reference  (1)  to  cases  of  damage  done 
by  the  tug  or  tow  (see  Collision),  and  (2)  to  cases  where  it  is  maintained 
that  the  towage  has  been  turned  into  a  case  of  salvage  (see  Salvage). 
The  general  rule  is  that  the  tug  is  not  bound  to  continue  the  service 
if  extraordinary  circumstances  intervene  to  make  the  towage  unduly 
dangerous  to  the  tug,  and  which  circumstances  were  not  contemplated 
when  the  bargain  was  made.  In  the  absence  of  bargain,  the  tug  is  of 
course  liable  for  any  negligence ;  but  it  is  now  common  for  tug  owners  to 
exempt  themselves  from  liability,  and  this  is  a  lawful  contract.  If  the 
tug  was  in  the  particular  circumstances  entitled  to  abandon  the  contract 
of  towage  because  of  the  danger,  and  she  renders  service  of  value  and 
involving  risk  to  the  tow,  she  will  be  entitled  to  salvage. 

The  law  with  regard  to  fishing  has  already  been  considered  (see  FiSHlNGS). 
But  reference  may  be  made  to  the  provisions  of  the  Merchant  Shii^ping 
Act  on  the  subject.  Only  sees.  373-375  of  the  fourth  part  of  the  Act 
can  apply  to  Scotland  (see  s.  372).  It  does  not  seem  clear  that  sees. 
374  and  375  do  so  apply.  The  regulations  for  preventing  collision  at  sea  in 
force  under  authority  of  the  Act  apply  to  fishing  boats  in  certain  cases. 

In  Part  V.  of  the  statute  provisions  are  made  with  the  object  of 
inc:easing  the  safety  of  ships.  It  is  under  authority  of  sees.  418  and  419 
that  the  regulations  for  preventing  collision  at  sea  have  statutory  force 
(see  Collision).  It  may  be  noted  that  since  that  article  was  written, 
new  regulations  have  come  into  force  which  materially  alter  those  dealt 
with  in  it.  There  are  other  enactments  as  to  cases  of  collision  (ss.  423, 
424).  Accidents  to  and  loss  of  ships  have  to  be  reported  (ss.  425,  426). 
Provision  is  made  as  to  life-saving  appliances  (ss.  427  ct  scq.),  general 
equipment  (ss.  432,  433),  signals  of  distress  (ss.  434,  435),  and  inspection 
of  lights  and  fog-signals  (s.  420).  There  are  important  enactments  on  the 
subject  of  the  draught  and  load-line  (ss.  43G  d  scq.),  and  the  carriage  in 
ships  of  dangerous  goods  (ss.  446  et  scq.),  timber  (s.  451),  and  grain  (ss.  452 
ct  scq.).  Power  is  "given  to  the  Board  of  Trade  to  detain  unsea worthy 
ships,  and  penalties  are  imposed  on  shipowners  who  are  parties  to  sending 
their  ships  in  an  unseaworthy  state  to  sea  (ss.  457  ct  scq.).  On  the  other 
hand,  if  the  Board  unreasonably  detain  ships  they  can  be  made  to  pay 
compensation  (s.  460).  An  undermanned  ship  is  now  within  the  statute, 
and  can  be  detained  (Merchant  Shipping  (Liability  of  Shipowners)  Act, 
1897)  (see  Seaworthiness).  The  Board  of  Trade  has  in  certain  cases 
power  to  detain  foreign  ships  (s.  462). 

The  next  part  of  the  Act  provides  for  special  shipping  inquiries  and 
Courts,  created  for  the  purposes  of  the  Act. 

There  are  constant  inquiries  into  shipping  casualties.  Under  this  term 
is  practically  included  all  cases  of  accideiit  to  or  loss  of  ships  where 
evidence  can  be  got  (s.  464).  Wherever  the  Board  of  Trade  deem  it 
expedient,  they  order  such  inquiries,  which  in  Scotland  are  now  held  before 
the  Sheriffs.  This  part  of  the  Act  sets  forth  the  procedure  and  the  persons 
who  can  conduct  the  inquiries.  The  Courts  have  power  to  deal  with  uie 
certificates  of  officers  through  whose  fault  the  casualty  has  arisen  (s.  470), 
but  the  Board  may  order  a  rehearing;  and  if  a  certificate  is  suspended  or 
cancelled,  the  officer  may  appeal  to  either  Division  of  the  Court  of  Session 


SHIP;  SHIPPINa  333 

(s.  475  (3)).  There  liave  been  several  such  appeals  (see  for  a  recent 
example,  Turner,  22  E.  18).  The  owners,  if  parties  to  the  inquiry,  may 
be  subjected  in  expenses,  but  have  no  ajjpeah  The  Court  of  Session  can 
remove  a  master  in  any  necessary  case  (s.  472).  Apart  from  casualties,  in 
cases  where  the  Board  of  Trade  consider  a  certificated  officer  guilty  of 
misconduct,  they  can  cause  an  inquiry  to  be  held  with  a  view  to  the 
suspension  or  cancellation  of  the  certificate.  Provision  is  also  made  for 
inquiries  in  the  Colonies  and  abroad  (ss.  478  ct  scq.). 

This  part  of  the  Act  creates  the  Courts  of  Survey,  which  under  the  Act 
fall  to  dispose  of  differences  of  opinion  between  the  Board  of  Trade  and  ship- 
owners as  to  seaworthiness  (ss.  487  et  seq.). 

The  legal  proceedings  for  contravention  of  the  Act  are  dealt  with  in 
Part  XIII.  By  sec.  988  special  power  is  conferred  to  arrest  foreign  ships 
which  have  done  damage  to  British  property. 

^Xe  have  now  to  consider  the  rules  of  law  with  regard  to  the  liability 
of  shipowners.  Apart  from  the  Merchant  Shipping  Acts,  these  rest  on 
common  law,  and  need  not  be  separately  considered.  But  the  statutory  law 
apx)lies  in  the  great  majority  of  cases. 

The  statute  first  enacts  that  the  owners  of  a  British  sea-going  ship 
shall  not  be  liable  to  make  good  to  any  extent  damage  happening  without 
their  actual  fault  or  privity  in  the  cases  (1)  of  goods  damaged  by  reason  of 
tire  on  board  the  ship,  (2)  of  damage  by  reason  of  robbery,  embezzlement, 
making  away  with  or  secreting  of  gold,  silver,  diamonds,  watches,  jewels,  or 
precious  stones,  the  true  nature  and  value  of  which  have  not  at  the  time 
of  shipment  been  declared  by  the  owner  or  shipper  to  the  owner  or  master 
of  the  ship  in  writing  (s.  502). 

It  has  been  held  this  clause  does  not  free  the  ship  from  contributing  to 
general  average  for  damage  caused  by  water  to  extinguish  fire  (Schmidt,  45 
L.  J.  (Q.  B.)  646). 

It  is  further  enacted  (s.  503)  that  the  owners  of  a  ship — British  or 
foreif^n — shall  not,  wliere  any  of  the  following  occurrences  take  place 
without  their  actual  fault  or  privity,  viz : 

(1)  loss  of  life  or  personal  injury  to  any  person  carried  in  the  ship; 

(2)  loss  to  goods  on  board  the  ship ; 

(3)  loss  of  life  or  personal  injury  to  any  person  carried  in  any  other 

vessel  by  reason  of  improper  navigation  of  the  ship ; 

(4)  damage  to  goods  therein  by  reason  of  like  improper  navigation  ; 
be  liable  to  damages — 

(1)  in  respect  of  loss  of  life  or  personal  injury,  either  alone  or  together 

witli  damage  to  vessels  and  goods,  beyond  £15  for  each  ton  of  the 
ship's  tonnage ; 

(2)  in  respect  of  loss  or  damage  to  a  vessel  or  goods,  £8  for  each  ton. 

It  is  tlie  registered  tonnage  of  sailing  sliips  whicli  form  the  basis  of 
calculation  (s.  503,  subs.  2  (al)),  and  the  gross  tonnage  of  stcanicrs, 
but  subject  to  deduction  in  respect  of  space  for  seamen  and  apprentices. 
A  double  bottom  is  not  included  (Zanzibar,  [1892]  I'.  233).  There  has  been 
discussion  as  to  further  deductions,  but  tlie  weight  of  autliority  is  against 
allowing  anytliing  more  (JJurrcll,  4:  P.  177;  Umlilo,  [lSd\]  V.  118;  J'cird, 
[1893]  P.  320).  The  register  is  not  absolutely  conclusive  (Franconia,  [1878] 
3  P.  D.  164;  Reccpta,  1889,  14  P.  D.  131).  Tiie  tonnage  is  that  at  the 
date  of  the  event,  not  at  the  date  of  the  limitation  suit  (John  J['/n(j/re, 
6  P.  D.  200).  Provision  is  made  as  to  ascertaining  the  tonnage  of  a  foreign 
ship  (s.  503,  subs.  (2)  (b)  (r)). 

Of  course,  to  get  exemption  shipowners  must  be  within  the  words  of  the 


33-i  SHIP;  SHirriNG 

statute.  Thus  fire  on  board  a  hulk  is  not  within  sec.  502,  for  a  hulk  is  not 
a  British  sea-going  ship  (see  The  Salt  Union,  [1893]  1  Q.  B.  370).  So  damage 
to  a  dock  or  wall  would  have  to  be  ^mid  for  in  full,  as  not  within  sec.  503 
(see  The  Ettrich,  1881,  6  P.  D.  127 ;  Bcrnina,  1886,  12  P.  D.  36).  On  this 
principle,  it  was  held  that  an  unfinished  ship  which  did  damage  was  not  a 
British  ship  within  the  section  {Andalusian,  1878,  2  P.  D.  231);  but  by  the 
Merchant  Shipping  (Liability  of  Shipowners)  Act,  1898,  a  ship  after  being 
launched  is  to  be  deemed  a  ship  within  the  words  of  the  principal  Act  for 
the  purposes  of  this  part  of  the  Act.  A  builder,  however,  is  only  protected 
for  three  months  after  launching.  A  foreign  ship  purchased  by  British 
subjects,  but  not  yet  in  a  position  to  be  registered,  did  damage.  It  was 
held  the  purchasers  could  claim  the  benefit  of  the  Act,  treating  the  ship  as 
a  foreign  ship  (Marsden  on  Collisions,  3rd  ed.,  p.  173). 

The  mere  fact  that  a  part  owner  is  on  board  at  the  time  of  the 
occurrence  will  not  make  him  privy  to  it  so  as  to  deprive  him  of  the 
benefit  of  the  Act  {The  Scdinita,  [1897]  App.  Ca.  59).  If  one  part  owner  is  at 
fault  or  privy  to  the  occurrence,  this  does  not  deprive  other  owners  of 
the  right  to  limit  their  liability  (Sjnrit  of  the  Ocean,  1865,  B.  &  L.  336), 
Masters  and  seamen  get  no  benefit  from  the  Act  (s.  508).  Shipowners 
may  waive  their  right  to  limit  their  liability  (Satinita,  ut  siqjra). 

The  words  "improper  navigation"  receive  a  liberal  interpretation,  to 
give  full  scope  to  the  intention  of  the  Act.  "All  damage  wrongfully 
done  by  a  ship  to  another  while  it  is  being  navigated,  where  the  wrongful 
action  of  the  ship  by  which  damage  is  done  is  due  to  the  negligence  of  any 
person  for  whom  the  owner  is  responsible,  is  comprised  within  the  statute '" 
(WarhvoHh,  1884,  9  P.  D.  145,  per  Brett,  M.  R,  p.  147). 

The  statute  provides  the  procedure  by  which  shipowners  take  steps  to 
limit  their  liability  under  sec.  503  (s.  504).  The  shipowners  have  to  pay 
the  expense  of  the  proceedings ;  but  in  the  event  of  a  competition  between 
claimants,  the  expense  falls  on  them  {Carron  Co.,  13  E.  114). 

The  owners  are  liable  for  each  act  of  damage  arising  on  distinct  occasions 
to  the  amount  of  the  statutory  limits,  that  is,  each  act  unconnected  with 
another  (s.  503  (3);  see  The  Sehwan,  [1892]  P.  419).  The  shipowner  can 
bring  into  account  claims  settled  by  him  {Pumldne,  4  E.  725). 

The  other  parts  of  the  Act  can  only  be  referred  to. 

Part  XL  vests  the  management  of  the  lighthouses  of  Scotland  in  the 
Commissioners  of  Northern  Lighthouses  (ss.  668),  and  confers  the  necessary 
powers.     It  also  deals  with  local  lighthouse  authorities  (ss.  634  et  seq.). 

Under  the  Act  and  the  Merchant  Shipping  (Mercantile  Marine  Fund) 
Act,  1898,  the  Marine  Fund  is  dealt  with. 

Part  XIV.  has  various  supplemental  sections.  Under  this  part  of  the 
Act  the  Board  of  Trade  is  formally  charged  with  the  superintendence 
of  Merchant  Shipping,  and  carrying  out  the  provisions  of  the  Act 
(s.  713). 

Shipowners  receive  an  allowance  for  wear  and  tear  in  calculating  their 
profits  for  purposes  of  income  tax.  This  does  not  entitle  them  to  claim  an 
allowance  in  respect  their  ships  are  becoming  obsolete  (The  Burnley 
S.S.  Co.). 

[Abbott  on  Shipping  (13th  ed.) ;  Scrutton,  Merchant  Ship)ping  Act,  1894 ; 
Marsden  on  Collisions,  3rd.  ed.] 

See  Bill  of  Lading;  Bottomky;  Charter;  Collision;  Freight; 
General  Ship  ;  Hypothec  ;  Marine  Insurance  ;  Pilot  ;  Ports  and  Har- 
bours ;  Salvage  ;  Seamen  ;  Seaworthiness  ;  Shipmaster  ;  Siiip's-Husband  ; 
Tug  and  Tow^  ;  Wreck  ;  etc.  etc. 


SHIP'S-HUSBAXD 


)oO 


Ship's- Husband. —A  sliip's-lmsLand  is  "a  confidential  agent 
appointed  by  the  owuers  to  conduct  and  manage  on  shore  whatever  concerns 
the  employment  of  the  ship,  and  for  tliat  purpose  has  authority  to  o-ive 
orders  for  the  necessary  repair,  refitting,  and  outfitting  of  the  ship,  to  see 
that  she  is  properly  manned,  to  procure  a  chaiter  or  freight  for  the  vessel, 
and  fix  and  accept  the  conditions  of  either  (but  not  to  cancel  such  eno-afre- 
ment  (as  to  this  see  infra)),  to  correspond  with  the  master  when  abroad  on 
the  business  of  the  ship,  and  to  do  what  is  needful  for  facilitating  the 
prosecution  of  the  voyage,  to  jDrovide  for  the  entry  and  clearance  ol'  the 
ship  at  her  home  port,  to  adjust  and  receive  the  freight,  pay  the  neces- 
sary disbursements,  and  to  account  for  and  distribute  the  proceeds 
among  the  owners"  (M'Lachlan  on  Shipin'iig,  p.  186;  Jri7//a?«so?i,  [1891] 
1  Ch.  390).  "When  the  owners  disagree  as  to  the  appointment  of  the 
ship's-husband,  the  appointment  of  a  majority  in  interest  prevails.  The 
ship's-husband  is  most  frequently  a  part  owner.  When  any  person  agrees 
to  take  shares  in  a  vessel  in  return  for  an  undertaking  that  he  w-ill  be 
appointed  ship's-husband,  his  appointment  is  not  revocable  at  will  (Galhraith 
&,  Moorhead,  1896,  23  K.  1011).  Tlie  ship's-husband  has  only  authority  to 
provide  for  the  ship  in  contemplation  of  an  adventure  or  series  of  adven- 
tures. He  has  no  authority  to  exercise  any  powers  witli  reference  to  a 
ship  belonging  to  his  principals  which  is  not  being  used.  His  power  to 
bind  the  owners  for  repairs  is  not  limited  to  those  which  are  absolutely 
necessary  to  enable  the  ship  to  prosecute  a  particular  voyage  so  long  as 
they  are  reasonable  {Preston,  1857,  26  L.  J.  Ex.  346 :  afld.  27  L.  J.  Ex. 
192).  But  when  a  vessel  is  in  a  home  port  and  the  owners  accessible,  he 
has  no  authority  to  order  extraordinary  structuial  alterations  which  are  not 
necessitated  by  a  projected  voyage  {Steele  &  Co.,  1876,  3  E.  1003).  AVlien 
a  ship's-husbarid  ordered  a  vessel  to  be  cut  in  two  and  lengthened,  he 
averred  special  authority  from  all  the  owners  {Chcqrpcll,  1860,  30  L.  J. 
Ex.  24).  From  the  nature  of  a  ship's-husband's  duties  in  managing  every- 
thing with  reference  to  the  employment  of  the  ship,  it  necessarily  follows 
that  he  has  power  to  pledge  the  owners'  credit  for  the  repairs  required  to 
fit  her  for  the  voyage.  And  a  limitation  in  this  respect  will  not  be  deduced 
from  the  facts  that  the  ship  is  insured  and  the  ship's-husband  can  collect 
from  the  underwriters  enough  to  pay  for  the  repairs  {The  Huntsman,  [1894] 
r.  214).  It  is  said  by  Bell  {Com.  i.  553 ;  Frin.  s.  440)  that  he  lias  no 
authority  to  borrow  money,  and  two  cases  are  quoted  by  him  in  which  it 
was  lield  that  a  ship's-husband  as  such  has  no  power  to  assign  the  whole 
freight  in  security  of  advances  obtained  {Gidon,  1860,  29  L.  J.  Ch.  337 ; 
Bcynon,  1878,  3  Ex.  D.  263).  On  the  other  hand,  the  following  statement 
of  the  law  by  Ld.  Esher,  M.  B.  {The  Faust,  1887,  6  Asp.  Mar.  Law  Cas.  N.  S. 
102  at  128),  is  approved  by  the  editors  of  Abbott  on  Sli'qqmig  (13th  cd.,  ]). 
105) : — "  As  managing  owner,"  said  Ld.  Esher, "  he  would  as  between  himself 
and  the  lender  have  a  right  to  borrow  money  if  it  was  borrowed  for  the 
necessary  purpo.ses  of  the  ship."  The  ship's-husljand  as  such  has  no  power 
to  insure  the  ship,  but  if  he  is  a  part  owner  he  may  as  partner  in  an 
adventure  insure  the  property  of  the  iirm.  It  has  been  lield  that  he  has 
no  power  after  entering  into  a  charter-party,  to  pledge  the  credit  of  the 
owners  to  pay  a  sum  of  money  to  have  it  cancelled  {Thomas,  1878,  4  Ex. 
D.  81);  but  it  may  be  doubted  whether  this  would  be  followed  in  Scotland, 
provided  the  arrangement  was  clearly  beneficial  to  the  owners  {HohnaUy 
1878,  5  B.  057).  His  power  to  do  everything  requisite  to  enable  his  vessel 
to  ])rosccute  its  destined  voyage  has  been  held  to  entitle  him  to  procure  a 
bail-bond  in  order  to  release  the  ship  from  arrestment  {Barker,  1863,  15 


336  SHIPMASTER 

C.  B.  N.  S.  27).  Otherwise  he  has  no  authority  to  order  legal  proceedings 
on  behalf  of  the  owners  {Camphell,  1818,  G  L>ow,  116).  He  may  delegate 
his  authority  when  that  is  necessary  to  the  execution  of  his  duty  {Coult- 
hurst,  1866,  L.  E.  1  C.  P.  649);  and  if  he  is  a  shipbroker,  he  may  employ 
himself  in  broker's  work  when  lie  is  not  empowered  to  do  that  work  in  the 
capacity  of  shi^'s-lmshand  {Williamson,  [1891]  1  Ch.  390).  He  may  draw 
bills  on  the  owners  for  repairs  or  supplies,  but  he  may  not  without  special 
authority  take  bills  in  payment  of  freii^ht.  If  he  ceases  to  be  ship's- 
husband"  before  the  freight  is  due,  he  will  have  no  right  whatever  in  it. 
It  is  no  longer  his  duty  to  collect  the  freight,  and  although  his  claim 
against  his  principals  for  repayment  of  disbursements  subsists,  he  cannot 
nTake  it  good  by  any  right  of  retention  over  the  freight  {Bcynon,  1878, 
3  Ex.  D.  263). 

It  is  the  ship's-husband's  duty  to  render  accounts  at  the  end  of  an 
adventure  or  at  stated  periods  {Manners,  1884,  11  E.  899).  The  expense 
of  fitting  out  and  victualling  a  vessel  for  the  voyage  is  a  first  charge  upon 
the  profits  earned,  and  the  ship's-husband  or  managing  owner  is  entitled 
to  be  reimbursed  what  he  has  paid  out  before  any  division  of  them  among 
the  owners  {Holderncss,  1823,  8  B.  &  C.  612 ;  Green,  1840,  17  L.  J.  Ch. 
323;  Bcynon,  supra).  This  applies  to  repairs  as  well  as  to  furnishings, 
even  although  these  repairs  have  not  been  exhausted  by  the  voyage,  but 
leave  the  vessel  at  the  termination  thereof  in  a  better  condition  than 
before  they  were  executed ;  and  the  right  of  retention  which  the_  ship's- 
husband  has  over  the  freight  in  his  hands  for  repayment  of  his  disburse- 
ments on  this  head  takes  precedence  of  the  claims  of  a  mortgagee  who  can 
be  in  no  better  position  than  the  owner  and  mortgagor  {Green,  supra). 

A  ship's-husband,  like  any  other  agent,  is  not  entitled  to  take  payment 
from  both  contracting  parties.  If  he  is  paid  for  his  services  by  his  prin- 
cipals, he  must  credit  tliem  with  any  rebates  he  may  receive  from  their 
creditors  {Manners,  1884, 11  E.  899).  If  he  is  remunerated  by  a  stated  sum 
of  money,  he  cannot  charge  commission  for  work  done  by  him  in  the  capacity 
of  a  shipbroker,  that  work  falling  within  his  duty  and  authority  as  ship's- 
husband  (IF'i/^mwi6Wi,  [1891]  1  Ch.  390). 

The  mere  fact  of  a  person's  name  appearing  on  the  register  of  owners 
is  not  sufficient  to  subject  him  in  liability  for  supplies  or  repairs  propeily 
ordered  by  the  ship's-husband  {Skelc  &  Co.,  1876,  3  E.  1003 ;  Frazcr,  1886, 
6  Q.  B.  b.  93).  "  It  is  perfectly  settled  now,"  said  Parke,  B.,  in  1855 
{Mitchcson,  5  E.  &  B.  419  at  443),  "that  the  liabihty  to  pay  for _ supplies 
depends  on  the  contract  to  pay  for  them,  and  not  on  the  ownership  of  the 
fillip."  And  if  one  owner  takes  no  part  in  a  particular  adventure  he  incurs 
no  lieabilitv  for  the  expenses  necessary  for  its  prosecution  {Frazer,  supra). 

The  Merchant  Shipping  Act,  1894  (57  &  58  Vict.  c.  60,  s.  59),  requires 
the  name  and  address  of  the  managing  owner  or  ship's-husband  of  eveiy 
^hip  registered  at  a  port  in  the  United  Kingdom  to  be  registered  at  the 
■custom^iouse  of  that  port.  And  sec.  426  requires  the  managing  owner 
or  ship's-husband,  on  the  apprehended  loss  of  the  ship,  to  give  notice 
.thereof  to  the  Board  of  Trade. 

Shipmaster. — A  shipmaster  is  a  general  agent  of  the  shipowners, 
;on  whom  is  devolved  the  care,  navigation,  and  general  control  of  the  ship. 
He  is  appointed  by  the  owners,  or,  in  case  of  disagreement  among  them,  by 
a  majority  in  interest,  and  he  may  be  a  part  owner.  Under  the  Merchant 
.Shipping  Act,  1894  (57  &  58  Vict.  c.  60,  s.  742),  "  master  "  includes  every 
person  (except  a  pilot)  having  command  or  charge  of  any  ship.     That  Act 


SHIPMASTEE 


337 


(ss.  92-104)  requii-es  that  "every  British  foreign-going  ship  and  every 
British  home-trade  passenger  ship,  when  going  to  sea  from  any  place  in  the 
United  Kingdom,  and  every  foreign  steamship  carrying  passengers  between 
places^  in  the  United  Kingdom,  shall  be  provided  with  officers'  duly  certifi- 
cated "  under  the  Act ;  and  provisions  are  made  for  granting  the  necessary 
certificates  to  the  masters  of  such  ships.  ■ 

The  case  of  a  shipmaster  is  an  exception  to  the  general  rule,  that  when 
an  agent  contracts  with  third  parties,  on  behalf  of  a  known  principal,  the 
principal  only  is  bound,  not  the  agent.  A  shipmaster  is  personally  bound, 
as  a  party,  in  all  contracts  which  he  makes  within  the  scope  of  his  authority 
on  behalf  of  the  owners  (Abbott  on  Shijjjnng,  13th  ed.,  p.  120 ;  M'Lachlan 
on  Shiijping,  p.  135).  But  he  may  of  course  stipulate  with  the  other 
contracting  party  that  he  is  to  be  free  from  any  liability  on  the  contract. 
Like  any  other  agent,  he  must  account  to  his  principal  for  any  rebates  or 
commissions  received,  but  he  is  not  bound  to  give  them  credit  for  sums 
received  as  gratuities,  e.g.  from  consignees  of  cargo  for  the  efficient  manner 
in  which  he  superintended  its  discharge  {The  ParJcdcdc,  [1897]  P.  53). 

The  shipmaster's  authority  in  port,  when  the  owners  do  not  themselves 
undertake  the  duties,  and  no  other  agent  is  appointed  for  the  purpose, 
extends  to  engaging  the  crew  (and  see  Merchant  Shi^^ping  Act,  189-4,  s.  113), 
a  general  survey  of  the  vessel  to  secure  that  it  is  seaworthy  and  fit  for  tlie 
voyage  (see  Seawoethixess),  obtaining  and  receiving  the  cargo,  and  signing 
bills  of  lading  therefor.  Although  the  master  does  not  generally  himself 
receive  and  unload  the  cargo,  that  falling  within  the  mate's  duty,  he  is 
responsible  for  all  that  is  done  by  his  subordinate  in  those  matters 
{Hoicman,  1897,  25  E.  (J,  C.)  8).  His  principals  may  place  a  limit  upon 
his  authority ;  but  third  parties  contracting  with  him,  without  knowledge 
thereof,  are  entitled  to  assume  that  he  has  all  the  usual  authority  of  a 
master.  "  His  character  and  situation  furnish  presumptive  evidence  of 
authority  to  act  for  (the  owners)  in  these  cases,"  i.e.  fitting  out,  victualling, 
and  manning  the  ship,  "  liable,  indeed,  to  be  rebutted  by  proof  that  they, 
or  some  other  person  for  them,  managed  the  concern  in  any  particular 
instance,  and  that  this  fact  was  actually  known  to  a  particular  creditor, 
or  WMS  of  such  general  notoriety  that  he  cannot  be  supposed  to  be,  because 
he  ought  not  to  have  been,  ignorant  of  it,  or  that  they  were  by  the 
terms  of  the  contract  expressly  excluded "  (Abbott  on  Shipinng ,  l?)t\\  ed., 
132).  The  shipmaster  has  no  authority  to  sign  bills  of  lading  for  goods 
which  he  has  not  received  {Grant,  1851,  10  C.  B.  665);  or  to  sign  bills  of 
lading,  making  freight  payable  to  others  than  the  owners  {Reynolds,  1865, 
34  L.  J.  Q.  B.  251);  or  to  contract  to  carry  goods  freight  free,  unless  tlicy 
belong  to  the  sliipowner  {Keith,  1877,  2  C.  P.  D.  163).  He  cannot  annul 
a  contract  made  by  the  owners  of  the  ship  in  order  to  enter  into  another 
(Burgon,  1810,  2  Camp.  528);  but  he  has  been  held  to  act  within  his 
authority  in  varying  tlie  terms  of  a  charter-party  when  such  variation  was 
beneficial  to  tlic  owners  {Ilolman,  1878,  5  E.  657).  His  autliority  to  procure 
freight  only  authorises  him  to  do  so  according  to  the  ordinary  terms,  and 
not  to  vary  tlie  usual  conditions  of  carriage ;  and  he  has  no  power  to  dis- 
charge a  claim  for  demurrage,  except  on  payment  {Holman,  snpra). 

The  master  may  pledge  the  owner's  credit  foi-  necessaries  or  repairs  to 
enable  the  vessel  to  proceed  on  its  voyage ;  but  not  if  there  is  another  agent 
of  the  owner's  in  the  port  intrusted  with  the  duty  of  providing  the  ship 
{Gunn,  1874,  L.  E.  9  C.  P.  331).  It  was  said  in  this  case  (per  Ld.  Esher, 
then  Brett,  J.,  335),  difleriny  from  a  previous  dictum  of  "Dr.  Lushington 
{The  Faithful,  1862,  31  L.  J.  P.  M.  &  A.  81 ;  and  see  Abbott,  13th  ed.,  ISO), 

S.  E. — VOL.  XI.  22 


338  SHIPMASTEK 

that  the  knowledge  of  the  third  party  was  immaterial ;  but  the  jury  had 
found  that  he  could  have  become  aware  of  the  existence  of  the  other  agent 
had  he  made  inquiry.  The  supplies  must  be  reasonably  fit  and  proper  for 
the  ship,  or  the  owners  are  not  bound.  In  using  the  word  "  necessaries," 
reference  is  implied  not  only  to  the  requirements  of  the  ship,  but  also  to 
the  presence  or  absence  of  an  agent  who  can  provide  them  (Gunn,  supra). 
"  Two  elements  are  essential  to  the  captain's  authority  "  to  bind  the  owners 
to  pay  for  supplies  or  repay  money  advanced:  "first,  that  the  goods 
supplied  should  be  such  as  it  must  be  taken  the  owner,  if  present,  would 
as  a  prudent  man  have  thought  necessary ;  and  secondly,  that  neither  the 
owner  nor  a  recognised  agent  of  the  owner  able  to  pay  for  the  supplies, 
or  to  obtain  them  on  credit,  should  have  been  present  at  the  port "  (per 
Ld.  Esher  in  Gunn,  snpra,  337). 

If  the  master  cannot  get  the  necessary  supplies  or  repairs  to  his  ship 
upon  the  owners'  credit,  he  may  hypothecate  the  ship  and  freight,  and  even 
the  cargo  (see  Bottomky  ;  Eespondentia).  His  authority  to  do  this  only 
arises  when,  owing  to  inability  to  communicate  with  the  owners,  there  is  an 
absolute  necessity  to  borrow  money  to  prosecute  the  voyage,  and  personal 
credit  as  a  source  of  supply  has  failed,  or,  as  has  been  said,  "  if  there  be  no 
power  to  communicate,  correspondent  with  the  necessity,  the  power  to  raise 
the  money  exists"  (per  Sir  J.  Jervis,  C.  J.,  in  Wallace,  1851, 7  Moore  P.  C.  398). 
In  one  case  it  was  held  that  a  master  acted  within  liis  powers  in  selHng  the 
ship  when  there  was  urgent  necessity  {Robertson,  1824,  1  Bing.  445).  "This 
principle,"  said  Ld.  Gifford,  pronouncing  the  judgment  of  the  Court,  "  may 
be  clearly  laid  down,  that  a  sale  can  only  be  permitted  in  case  of  urgent 
necessity,  that  it  must  be  lonCi  fide  for  the  benefit  of  all  concerned,  and 
must  be  strictly  watched.  ...  I  agree  that  it  is  not  sufficient  to  show  that 
the  sale  was  londfide,  and  for  the  l^enefit  of  all  concerned,  unless  it  be  also 
shown  that  there  was  urgent  necessity  for  its  being  resorted  to." 

The  master  has  a  duty  at  all  times  of  maintaining  order  and  discipline 
among  the  crew,  and  during  the  voyage  he  is  responsible  for  the  navigation 
of  the  ship.  In  his  care  and  control  of  the  cargo  his  duty  is  derived  from 
his  agency  for  the  shipowners.  His  duty  is  to  carry  the  goods  safely  from 
port  to  port ;  but  the  benefit  to  be  derived  from  his  labour  in  that  respect 
is  for  the  shipper  as  well  as  for  his  own  principals.  He  is  bound,  therefore, 
to  use  all  reasonable  exertion  to  preserve  the  cargo.  When  a  cargo  which 
,had  suffered  damage  through  collision  (for  which  damage  the  shipowners 
were  not  liable  to  the  shipper)  became  further  deteriorated  owing  to  want 
.of  such  reasonable  exertion  on  the  part  of  the  master,  the  shipowners  were 
held  liable  to  the  shippers  for  this  extra  damage  {Notara,  1872,  L.  E.  7  Q.  B. 
225;  Adam,  1890,  18  E.  153).  "The  question  whether  active  special 
measures  ought  to  have  been  taken  to  preserve  the  cargo  from  growing 
damage  by  accident,  is  not  determined  simply  by  showing  damage  done,  and 
suggesting  measures  which  might  iiave  been  taken  to  prevent  it.  A  fair 
allowance  ought  to  be  made  for  the  difficulties  in  which  the  master  may  be 
involved.  .  .  ,  All  circumstances  affecting  risk,  trouble,  delay,  and  incon- 
venience must  be  taken  into  account.  Nor  ought  it  to  be  forgotten  that  the 
master  is  to  exercise  a  discretionary  power,  and  that  his  acts  are  not  to  be 
censured  because  of  an  vmfortunate  result,  unless  it  can  be  affirmatively 
made  out  that  he  has  been  guilty  of  a  breach  of  duty  "  (per  Willes,  J.,  in 
Notara,  supra,  237).  A  master  may  incur  expense  for  the  preservation  of 
the  cargo,  and  charge  it  against  the  shipper  as  particular  average.  He  may 
become  agent  for  the  cargo-owners  when  the  further  carriage  of  the  goods 
jn  his  own  ship  has  become  impossible,  and  may  tranship  the  goods  if  by  so 


SIIOKT  TITLES  339 

■doing  he  is  able  to  earn  the  freiglit  {Shipton,  1838,  9  A.  &  E.  314);  or  he 
may  even  sell  the  cargo  wlien  its  preservation  until  the  owners  could  be 
communicated  with  would  result  in  its  loss  {Australian  Steam  Navvjation 
Co.,  1872,  L.  R  4  P.  C.  222);  or  he  may  employ  a  third  person  to  take 
charge  of  and  preserve  the  cargo  {Hingston,  1876,  1  Q.  B.  D.  367). 

By  the  Merchant  Shipping  Act,  1894  (s.  167),  the  master  of  a  ship, 
whether  he  is  also  a  part  owner  or  not  {The  Fcronia,  1868,  L.  E.  2  Ad.  & 
Ec.  Go),  has  the  same  rights,  liens,  and  remedies  for  the  recovery  of  his 
wages  as  a  seaman  has  (see  Seamen);  and  similar  rights,  liens,  and 
remedies  arc  thereby  given  to  him  for  the  recovery  of  disbursements  or 
liabilities  properly  made  or  incurred  by  hiui  on  account  of  the  ship.  The 
word  "disbursements"  means  "disbursements  by  the  master  which  he 
makes  himself  liable  for  in  respect  of  necessary  things  for  the  ship,  for  the 
purposes  of  navigation,  which  he  as  master  of  the  ship  is  there  to  carry  out 
— necessary  in  the  sense  that  they  must  be  had  immediately — and  when 
the  owner  is  not  there,  able  to  give  the  order,  and  he  is  not  so  near  to  the 
master  that  the  master  can  ask  for  his  authority,  and  the  master  is  there- 
fore obliged,  necessarily,  to  render  himself  liable  in  order  to  carry  out  his 
duty  as  master"  (per  Ld.  Esher,  M.  E.,  in  The  Oricnta,  [1895]  P.  49,  at  55). 
A  master  who  has  incurred  a  liability  for  necessaries  to  the  ship,  e.g.  by 
granting  a  bill  of  exchange,  is  in  the  same  position  in  the  matter  of  his 
lien  as  he  would  be  in  if  he  had  discharged  it.  Such  a  liabdity  is 
equivalent  to  a  disbursement  {The  Feronia,  1868,  L.  E.  2  Ad.  &  Ec.  65; 
The  Fairjiorf,  1882,  8  P.  D.  48 ;  The  Fapon  Cifjj,  [1897]  P.  226).  P>ut  tliere 
can  be  no  lien  on  freight  when  there  is  none  on  the  ship  {The  Castlcgatc, 
[1893]  App.  Ca.  38).  In  addition  to  the  tradesman's  right  of  retention  of 
goods  in  his  possession  for  the  purpose  of  putting  work  on  them,  no  lien  is 
created  by  the  statute  in  favour  of  llie  person  wlio  repairs  or  ]u-ovides 
necessaries  for  the  ship  {The  Heinrich  Bjorn,  1885,  10  P.  1).  44;  nlld.  1886, 
11  App.  Ca.  270);  and  he  has  no  lien  at  common  law  {The  liio  Tinto,  1883, 
9  App.  Ca.  356).  The  master  has  no  lien  for  wages  beyond  what  is  given 
him  by  statute. 

The  sliipowncrs,  or  a  majority  in  interest,  may  dismiss  the  master,  a3 
they  may  appoint  him.  But,  in  the  absence  of  contrary  stipulation,  tlie 
master  is  bound  to  give,  and  is  entitled  to  receive,  reasonable  notice  before 
his  engagement  is  ternnnated  {Crecn,  1876,  1  C.  P.  D,  591).  The  IMcrcliant 
Shipping  Act,  1894  (ss.  469-474),  provides  for  the  suspension  oi-  cancL'lhdion 
of  a  master's  certificate  in  the  event  of  his  conviction  lor  any  ollonce.  If  a 
ship  changes  ownership  during  a  voyage,  tlie  master  remains  bound  liy  all 
the  instructions  he  received  from  those  who  ai)pointed  him,  and  is  obliged 
to  act  in  their  interests  until  he  receives  notice  of  the  cliange  {Mercantile 
d&  Exehaiujc  JJank,  1868,  L.  E.  3  Ex.  233). 

The  extent  of  a  master's  authority  is  ruled  by  the  hiw  of  ihc  sln[rs 
flag. 

Shop  Hours  Regulation  Acts.— These  are  55  &  56  Vict. 
c.  62,  and  56  &  57  Vict.  c.  67,  ss.  3,  2. 

Shore. — Sue  Sea;  Seasiioke, 

Short  Titles.— An  Act  of  Parliament  is  cited  l)y  its  full  lilh>. 
This  mode  of  citation  was  early  found  to  be  cumbnjus,  nnd  alternative  modes 
of  citation  wore  ]»ermitted  l)y  various  statutes. 

In  1850,  Lord  Brougham's   Act  (13  &  14  Vict,  c,  21)  permitted  the 


340  SIGNATUEE 

citation  iu  any  Act  of  a  former  Act  by  the  regnal  year,  the  statute  or 
session,  the  chapter,  and  the  section. 

Shortly  thereafter  the  practice  was  introclnced  of  embodying  in  every 
Act  a  section  giving  a  short  title  by  which  such  Act  should  be  cited  for  all 
purposes.     This  practice  increased,  but  was  not  universal. 

By  the  Interpretation  Act,  1889  (52  &  53  Vict.  c.  63),  s.  35,  it  is  pro- 
vided that  "  in  any  Act,  instrument,  or  document,  an  Act  may  be  cited  by 
reference  to  the  short  title,  if  any,  of  the  Act,  either  with  or  without  a 
reference  to  the  chapter,  or  by  reference  to  the  regnal  year  in  which  the 
Act  was  passed,  and  where  there  are  more  statutes  or  sessions  than  one  in 
the  same  regnal  year,  by  reference  to  the  statute  or  session  as  the  case 
may  require,  and  where  there  are  more  chapters  than  one,  by  reference  to 
the  chapter,  and  any  enactment  may  be  cited  by  reference  to  the  section 
or  subsection  of  the  Act  in  which  the  enactment  is  contained."  In  this 
provision  the  word  "statute"  is  used  as  equivalent  to  session,  it  having 
been  occasionally  used  in  this  sense  in  the  earlier  English  reigns. 

Most  of  the  modern  Acts  provide  a  short  title,  and  to  extend  this  facility 
of  citation  to  Acts  not  so  provided,  an  Act  was  passed  in  1892.  That  Act, 
■"however,  was  incomplete,  and  was  repealed  and  superseded  by  the  Short 
Titles  Act,  1896  (59  &  60  Vict.  c.  14). 

That  Act  gives  a  short  title  to  upwards  of  two  thousand  Acts,  and 
provides  (s.  1)  that  each  of  these  Acts  may  be  cited  by  the  respective 
short  title. 

It  also  gives  collective  titles  to  many  groups  of  Acts,  by  which  titles 
it  provides  (s.  2)  that  these  groups  may  be  cited,  and,  further,  that  if  it  is 
provided  in  any  subsequent  Act  that  such  Act  is  to  be  cited  with  any  of 
the  said  groups,  or  with  any  group  to  which  a  collective  title  has  been  given 
by  any  previous  Act,  the  collective  title  shall  be  altered  so  as  to  include 
such  subsequent  Act.  It  further  provides  (s.  3)  that  notwithstanding 
the  repeal  of  an  enactment  giving  a  short  title  to  an  Act,  the  Act  may 
continue  to  be  cited  by  that  short  title. 

Short  titles  have  been  referred  to  for  construction  {Justices  of  Middl&sex, 
1884,  L.  E.  9  App.  Ca.  772),  but  it  seems  doubtful  whether  those 
given  by  the  Short  Titles  Act  could  be  used  for  a  similar  purpose. 

Signature. — See  Deeds,  Execution  of. 

Silver  and  Gold    Plate.— The  Act  6  and  7  Will.  iv.  c.  69 

regulates  with  microscopic  minuteness  of  detail  the  standards  of  gold 
and  silver  which  alone  may  be  wrought  or  manufactured  in  Scotland ;  the 
intimation  which  each  goldsmith,  silversmith,  or  plate-worker  must  give  to 
the  Goldsmiths'  Incorporation  of  Edinburgh  or  the  Glasgow  Goldsmiths' 
Company  before  he  may  commence  business ;  the  marks  with  which 
the  articles  are  to  be  stamped ;  the  assay  which  they  must  pass ;  and  the 
penalties  for  forging  or  imitating  the  proper  marks.  By  17  &  18  Vict, 
c.  96,  s.  1,  there  is  sulistituted  for  the  standard  for  gold  wares  a  provision 
that  Her  Majesty  may  from  time  to  time  make  an  Order  in  Council  allowing 
any  standard  for  gold  wares  not  less  than  one  third  part  in  the  whole. 
The  silver  standard  prescribed  in  the  Act  of  William,  viz.  eleven  ounces  two 
pennyweights  of  fine  silver  in  every  pound  weight  troy,  remains  unchanged. 
Sees.  16  and  17  of  the  Act  of  Wilham  iv.  give  Hsts  of  the  articles  of  gold 
and  silver  respectively  which  are  exempt  from  being  stamped.  Sees.  25 
and  23  and  parts  of  sees.  22  and  19  have  been  repealed  by  the  Statute  Law 
Eevision  Acts,  but  otherwise  this  Act  remains  in  force.     By  the  Customs 


SINGULAE  SUCCESSORS  341 

and  luland  Eevenue  Act,  1890  (53  &  5-4  Vict.  c.  8,  s.  10),  the  stamp  duties 
and  duties  of  customs  on  silver  and  gold  plate  were  repealed. 

By  the  Eevenue  Act,  ISGT  (30  &  31  Vict.  c.  90,  ss.  1-G),  the  following 
excise  duties  on  licences  to  deal  in  plate  were  imposed : — 

Every  person  trading  in  or  selling  plate  in  respect  of  each  place  of 
business — 

Where  the  gold  is  above  two  pennyweights  and  under  2  oz.  in  weight, 
or  the  silver  above  5  dwt.  and  under  30  oz.  in  weight,  £2,  6s.  per  annum. 

Where  the  gold  shall  be  of  the  weight  of  2  oz.  and  upwards,  or  the 
silver  of  the  weight  of  30  oz.  and  upwards,  £5,  15s.  per  annum. 

Hawkers  and  pedlars,  the  same  duties  per  weight. 

Pawnbrokers  dealing  in  plate  and  refiners  of  gold  and  silver,  for  each 
place  of  business,  £5,  15s.  per  annum. 

Makers  of  watch-cases  (33  &  34  Vict.  c.  32,  s.  4)  and  dealers  in  gold  and 
silver  lace  (30  &  31  Vict.  c.  90,  s.  4)  do  not  require  a  licence  to  deal  in  these 
articles. 

A  goldsmith  holding  a  licence  at  the  lower  rate  of  duty  is  liable  to  a 
penalty  if  he  sells  an  article  as  gold  which  weighs  more  than  two  ounces 
although  it  does  not  contain  two  ounces  of  pure  gold  {Young,  1877,  L.  E.  3 
Ex.  D.  101). 

Any  person  trading  in  gold  or  silver  plate  without  a  licence  is  liable  to 
a  penalty  of  £50  (30  &  31  Vict.  c.  90,  s,  3).  Two  persons  who  had  got  up 
^'  watch  clubs,"  and  received  commission  from  the  licensed  dealers  on  goods 
sold,  were  convicted  of  breach  of  the  Act  (KilUcIc,  [1896]  2  Q.  B.  196). 

By  36  Geo.  in.  c.  52,  s.  14,  legacy  duty  is  not  payable  in  respect  of 
gold  or  silver  plate  of  which  one  has  just  the  liferent,  without  power  of 
disposal. 

Sing^Ie  Bills. — Cases  and  proceedings  of  any  kind  coming  into  the 
Inner  House  of  the  Court  of  Session,  before  either  of  the  Divisions,  are 
enrolled  in  the  EoU  of  the  Single  Bills,  which  corresponds  to  tlic  JMotion 
Eoll  of  the  Outer  House.  They  arc  then  usually  sent  by  formal  motion  to 
the  Ordinary  Eoll  or  Summar  Eoll,  to  be  put  out  for  discussion  later  on. 
Simple  motions  are  generally  disposed  of  in  the  Single  Bills,  but  if  they 
are  opposed,  and  a  long  discussion  is  probable,  they  are  usually  sent  to 
the  Summar  Eoll.  Objections  to  the  com])ctency  of  a  Ecclaiming  Note 
or  Appeal  should  always  be  stated  in  tlie  Single  Bills,  but  discus-ion  of 
such  oljjections  is  frequently  reserved  till  tlie  case  comes  up  for  disposal  on 
the  merits.     (Mackay,  Fraclicc,  i.  546,  Manual,  288.) 

Sing'Ula.r  Successors. — A  singular  successor  is  one  who 
succeeds  to  the  o\vner.sbi[)  oi  lieiitable  estate  in  Scotland  by  purchase  or 
adjudication  from  the  last  proprietor.  His  title  is  singular  in  the  sense 
that  it  is  limited  to  the  ]»aiticular  sul)j('cts  conveyed,  while  he  who  succeeds 
by  inheritance,  whether  of  line  or  ])rovision,  has  a  general  or  universal  title 
to  re[)resent  his  predec(;ssor.  On  this  account  an  heir  or  gratuitous  disponeo 
takes  the  estate  ianlum  d  laic  as  it  stnnd  in  liis  ]iredccessor,  subject  to  all 
the  limitations  and  burden.s,  legal  or  equitable,  to  which  his  ])r('(k'ccssor 
was  subject.  The  singular  successor,  on  the  other  hand,  takes  the  estate 
free  of  any  personal  oljligations  wliich  attached  t<>  his  jjicdccessor  (except 
in  the  case  of  feus,  to  be  presently  noticed).  H(!  is  liniind  unly  li\-  th(> 
publislied  conditions  wliich  attach  to  the  roil,  that  is,  which  ajijicai-  on  the 
titles  as  real  burdens,  or  are  openly  ])ublished  by  jiossession,  as  in  Ihc  case 
of  servitudes  (/^/^^.^/^{/^^/(c;/,  13  S.  226,  2  S.  &  M'L.  609;  Eobinson, 


342  SINGULAR  SUCCESSOES 

i.  296 ;  MarshalVs  Tr.,  15  R.  762  ;  Gardyne,  1  Macq.  358,  15  D.  (H.  L.)  45  ; 
Millar,  1  Macq.  345,  15  D.  (H.  L.)  38;  N.  B.  Rivy.  Co.,  25  R.  (H.  L.)  47). 
Thus  in  a  contract  of  ground-annnal  the  personal  obligation  to  pay  the 
ground-annual  does  not  transmit  against  a  singular  successor  in  _  the  lands, 
but  the  original  debtor  remains  personally  bound,  notwithstanding  that  he 
has  parted  with  the  property  in  respect  of  which  the  payment  is  demanded 
{Marshall's  Tr.,  cit. ;  Gardyne,  cit.). 

In  a  disposition  of  subjects  held  burgage  there  was  a  clause  binding  the 
disponees  and  their  heirs  and  singular  successors  to  grant,  within  six 
months  of  acquiring  right  to  the  subjects,  personal  obligations  for  perform- 
ance of  all  the  conditions  of  the  titles,  including  payment  of  a  ground- 
annual.  It  was  held  that  the  condition  of  perpetual  liability  was  not  a 
real  condition  of  the  right  attaching  to  singular  successors  by  the  very  fact, 
of  becoming  proprietors  of  the  subject,  and  that  a  singular  successor  had 
not  by  the  special  terms  of  the  disposition  undertaken  this  liability  {Leslie, 
43  Sc.  Jur.  95).  A  feu  is  peculiar  in  this  respect,  that  a  condition  properly 
made  a  condition  of  tenure  of  a  feudal  grant,  will  be  enforceable  against  a 
singular  successor  of  either  the  vassal  or  the  superior  personally  (^Bell, 
Prin.  s.  700  ;  M.  of  Twecddales  Trs.,  7  R.  620  ;  Hope,  2  M.  670 ;  Camphell's 
Trs.,  4  M.  50).  Whether  the  original  obligant  in  a  feu-contract  remains 
bound  after  he  has  parted  with  tlie  subject  is  a  question  of  circumstances, 
depending  largely  on  the  wording  of  the  deed  {Burns,  14  R.  (H.  L.)  20 ; 
Police  Commissioners  of  Dundee,  11  R.  586 ;  Henderson,  4  M.  691 ;  King's 
College  of  Aberdeen,  1  Macq.  526,  17  D.  (H.  L.)  30). 

Another  point  in  which  singular  successors  in  feus  are  peculiar  is  in 
respect  of  the  casualty  or  payment  which,  apart  from  special  stipulation, 
may  be  demanded  by  the  superior  on  the  entry  of  a  new  vassal.  An  heir 
succeeding  to  the  estate  pays  "relief,"  which  is  one  year's  feu-duty  in 
addition  to  the  sum  payable  in  ordinary  course  as  feu-duty.  But  a  singular 
successor  pays  "  composition,"  which  is  a  year's  rent  in  addition  to  the  feu- 
duty.  When  the  feu-charter  (or  feu-contract)  provides  for  the  entry  of 
singular  successors  at  a  fixed  rate  (as  a  year's  feu-duty),  the  entry  is  said 
to  be  "  taxed"  (Bell,  Prin.  ss.  715-729)     See  Supepjok  and  Vassal. 

A  singular  successor  is  not  bound  by  a  servitude  affecting  the  property 
unless  such  servitude  has  duly  entered  the  titles,  or  unless  the  use  which 
it  is  proposed  to  set  up  by  prescription,  or  by  missives  which  do  not  enter 
the  record,  is  "  capable  of  being  l^rought  imder  one  or  other  of  the  known 
servitudes"  (per  Ld.  Giftbrd  in  Alexander,  3  R.  156).  In  judging  of  such 
rights  it  is  necessary  to  ascertain  whether  the  intention  of  parties  was  to 
create  a  servitude  on  the  property,  or  merely  a  personal  obligation  on  the 
owner,  which  of  course  would  not  transmit  against  a  singular  successor 
{N.  B.  Rwy.  Co.,  25  R.  (H.  L.)  47  ;  Gou-an,  10  M.  735  ;  Corhctt,  10  M.  329 ;  cf. 
Steivart,  4  11.  981).     See  Servitude. 

Leases. — The  question  whether  a  lease  is  good  against  a  singular  successor 
of  the  lessor  is  one  of  much  importance.  It  is  dealt  with  in  the  Act  1449, 
c.  18,  which  is  as  follows :  "  It  is  ordained  for  the  safety  and  favour  of  the 
puir  people  that  labouris  the  ground,  that  they  and  all  utheris  that  hes 
taken  or  sail  take  landes  in  time  to  cum  fra  lordes,  and  hes  termes  and 
yeires  thereof,  that  suppose  the  lordes  sell  or  annally  that  land  or  landes, 
the  takers  sail  remain  with  their  takes  unto  the  ischew  of  their  termes, 
quhais  handes  that  ever  they  landes  cum  to,  for  siklike  maill  as  they  took 
them  for."  The  effect  of  this  enactment  is  to  make  the  leases  to  which  it 
applies  real  rights,  whereas  formerly  they  were  only  personal  rights,  and 
to  secure  the  tenant  against  the  singular  successors  of  the  landlord.     There 


SINGULAR  SUCCESSOES  343 

are  five  conditions  to  be  observed  before  the  Act  will  apply :  (1)  the  lease, 
if  for  a  longer  period  than  one  year,  must  be  in  writing ;  (2)  the  subject  let 
must  be  land  or  annexed  to  land ;  (3)  the  tenant  must  be  in  possession  ;  (4) 
the  lease  must  have  a  definite  ish  and  entry ;  and  (5)  the  rent  payable  must 
be  expressly  stipulated  (Hunter,  Landlord  and  Tenant,  iii.  5.  1).  To  com- 
ment on  these  points  in  order :  (1)  A  verbal  lease  for  more  than  a  year,  or 
one  constituted  by  an  improbative  writing,  may  be  rendered  valid  rei. 
interventu  in  a  question  between  the  tenant  and  the  landlord  or  his  heirs. 
But  such  a  lease  will  remain  inefi'ectual  against  singular  successors,  without 
possession  (Bell,  Prin.  s.  1189).  But  a  lease  for  ninety-nine  years  of  a 
building  lot  with  a  cow's  pasture  was  held  to  be  proved  by  the  tenant's 
acceptance  of  the  advertised  terms,  followed  by  rei  interventus  (to  wit, 
building  tlie  houses)  and  possession  by  occupation  for  the  prescriptive 
period,  and  therefore  to  be  good  against  singular  successors  of  the  landlord 
{CampMl,  8  M.  (H.  L.)  40 ;  see  also  Wilson,  3  Bt.  527;  Arhuthnot,  Hume, 
Decisions,  785).  (2)  The  subject  must  be  land  or  its  accessory  (Ersk.  ii.  6. 
27).  So  formerly  a  lease  of  shooting  was  held  not  to  fall  under  the  Act 
{Pollock,  Gilmour,  &  Co.,  6  S.  913),  though  this  decision  might  not  now  be 
repeated.  "Where  the  tenant  of  a  farm  had  the  right  to  cut  peats  from  a 
moss  situated  on  another  part  of  the  estate,  and  this  moss  was  sold,  it  was 
questioned  whether  the  right  fell  under  the  Act  of  1449  so  as  to  transmit 
against  the  singular  successor  (per  Ld.  Young  in  Duncan,  21  E.  7G0). 
But  this  has  not  been  the  subject  of  explicit  decision.  The  question  has- 
been  raised,  but  not  decided,  wdiether  an  obligation  to  renew  a  lease  of 
ninety -nine  years  at  its  termination,  was  good  against  singular  successors 
under  the  Act  of  1449,  the  learned  Lords  holding  that  tlic  (]uestion  pro])crly 
fell  to  be  settled  by  a  future  generation  {Camphcll,  8  M.  (H.  L.)  40).  lUit 
though  the  object  of  the  Act  was  clearly  to  benefit  the  poorer  agriculturists, 
the  principle  is  extended  to  urban  subjects  also  {Jfacarthur,  Mor.  15181  ; 
Frascr,  2  Sh.  App.  37).  (3)  See  cases  of  Camphcll,  8  M.  (H.  L.)  40  ;  Wihon,  3 
11.  527  ;  and  ArhUhnnt,  Hume,  785.  (4)  A  tack  having  no  definite  time  or 
ish,  but  to  continue  till  a  certain  sum  be  paid  to  the  setter,  will  be  sustained 
against  the  setter,  but  not  against  "a  singular  successor"  (Hardies,  1627, 
Mor.  15190  ;  Steicart,  1631,  Mor.  15191).  "  A  tack  being  let  for  an  elusory 
tack-duty,  and  for  an  endurance  of  2400  years,  was  found  not  to  have  the 
benefit  of  the  Act  of  Barliament  in  favour  of  tenants,  and  therefore  not 
good  against  singular  successors"  {Alison,  1730,  Mor.  1519G;  cf.  Scott, 
1772,  3  Bat.  606 ;  Frascr,  1762,  2  Bat.  66).  (5)  See  Wilson,  3  E.  527  r 
Skene,  Bell  on  Leases,  i.  313  ;  L.  of  Alton,  1625,  :M()r.  15167  ;  Alison,  cit. 

Under  this  Act,  when  the  al)ovc-nicntionctl  points  luue  been  observed, 
a  lease  is  good  against:  (a)  Burchasers  and  adjudgers.  (h)  Heirs  of  entail 
when  tlie  lease  is  in  accordance  with  the  provisions  of  the  entail :  the  condit  ions 
to  be  oljscrved  in  granting  leases  of  entailed  estate  are  to  be  found  in  tlie 
Entail  Actsfy.v.-.),  but  <jne  condition  at  common  law  whicli  may  be  mcnlidnod 
here  as  illustrative,  is  tliat  leases  beyond  tlu;  duration  of  tlie  grantor's  life 
cannot  be  granted  for  a  consideration  otlier  than  rent.  'J'lius  leases  for  a 
long  ])erio(l,  granted  by  un  heir  of  entail  in  ])()ss('ssi()n  in  consideration  of  a 
grassuni  and  a  small  n-iit,  were  found  rciluciiilc  by  the  Hucceeding  licir  of 
entail  {Eiiott,  1  Sh.  App.  16;  Qnrcnshvrry's  Uxors.,  2  Sh.  Aj.p.  54).  But 
see  Entails.  (<-)  A  lease  granted  by  a  man  in  good  faith  and  consistently 
with  his  powers  of  administration  is  good  against  his  widow  taking  under 
her  legal  or  conventional  rights  {Lauw),  1827,  5  S.  90:'>).  {d)  A  lease 
granted  by  an  owner  whose  estate  is  subsequently  forfeited  for  treason  is 
good  against  the  Crown  or  its  donataries  {Frazcr,  2  Tat.  66).     A  fortiori  o. 


344  SISTING  A  MANDATAEY 

lease  is  good  against  the  Crown  succeeding  to  the  estate  as  ultimus  limres. 
It  was  formerly  stated  that  leases  were  protected  by  this  Act  against  the 
superior  under  ward-holding,  and  liferent  escheat,  but  not  against  non-entry. 
But  the  two  former  were  abolished  (in  practice)  by  20  Geo.  ii.  c.  50,  ss.  1 
and  11,  and  the  last  by  the  Conveyancing  (Scotland)  Act,  1874  (37  &  38 
Vict.  c.  94,  s.  4,  subs.  (4)) ;  so  no  reference  is  now  required  to  these 
points. 

Other  points  which  have  been  decided  in  regard  to  the  rights  and 
obligations  of  the  singular  successors  of  landlords  may  be  stated  very  briefly. 
A  singular  successor  is  bound  by  a  stipulation  in  a  lease  to  pay  to  the  tenant 
at  the  expiry  of  the  lease  the  value  of  houses  which  were  erected  prior  to 
his  purchase  of  the  property  {Frascr,  2  Sh.  App.  37).  A  purchaser  was 
held  bound  by  signed  articles  of  set  referring  to  the  lease,  though  the  lease 
contained  no  reference  to  the  articles  {Macra,  6  S.  935).  Where  a  tenant 
had  failed  to  implement  a  condition  of  the  lease  requiring  him  to  put  a 
certain  quantity  of  lime  on  the  land  yearly,  a  singular  successor  of  the 
landlord  was  held  entitled  to  claim  damages  for  the  neglect  in  the  years 
after  he  had  bought  the  estate,  but  not  in  the  years  preceding  his  purchase 
{Hamilton,  Hume,  787).  A  stipulation  in  a  lease  that  the  tenant  was  to  be 
allowed  a  yearly  deduction  of  £5  from  the  rent  for  acting  as  ground-officer, 
held  not  binding  vipon  a  singular  successor  who  removed  the  tenant  from 
the  situation  of  ground-officer  {Ross,  16  S.  1179).  On  the  subject  of 
.  singular  successors  to  the  landlord  in  leases,  see  Leases 


"&' 


Sisting  a  IVIandatary.— See  Mandataky. 

Sisti ng  Process.— By  the  Court  of  Session  Act,  1868  (31  &  32 
Vict.  c.  100,  s.  26),  it  is  enacted  "  that  it  shall  not  be  competent  of  consent 
of  parties  to  prorogate  the  time  for  complying  with  any  statutory  enactment 
or  order  of  Court,  whether  with  reference  to  the  making  up  and  closing  of 
the  record  or  otherwise.  Where  both  parties,  or  either,  desire  to  stop  the 
progress  of  a  cause,  the  proper  course  is  to  move  to  have  it  sisted  for  a 
•definite  time,  or  until  the  occurrence  of  some  event  which  will  enable  it  to 
be  more  summarily  or  effectually  brought  to  a  conclusion  "  (Mackay,  Manual 
of  Practice,  p.  264).  The  actions  which  it  is  competent  to  sist  are  usually 
petitory  actions  in  which  the  pursuer  ought  to  have  taken  the  preliminary 
step  of  establishing  his  own  right  or  reducing  a  document  upon  which  the 
defender's  right  is  based,  or  where  the  pursuer  should  have  waited  for  the 
conclusion  of  some  other  action  which  is  already  in  dependence  or  may  be 
raised.  It  is,  however,  always  in  the  discretion  of  the  Court  to  grant  or 
refuse  a  motion  to  sist  process,  and  the  sist  will  not  be  granted  unless  there 
is  some  clear  expediency.  If  the  motion  is  granted,  the  action  does  not  fall 
asleep. 

It  is  hardly  possible  to  state  general  rules,  but  the  following  are  examples 
of  cases  that  have  been  sisted  in  order  that  one  or  other  party  might  bring 
.a  proving  of  the  tenor  {OJlcers  of  Ordnance,  3  S.  629,  N.  E.  442) — a  declarator 
■{Loudon,  18  D.  856  ;  Smellie,  6  M.  1024)— a  reduction  or  reduction  improha- 
tion  {MIntyre,  5  M.  526;  Birrcl,  29  Sc.  Jur.  56;  Girdicood,  US.  351; 
3Iason,  10  S.  555  ;  Shcddcn,  11  D.  1333).  In  Sheriff  Court  actions  it  is  not 
now  necessary  to  move  for  a  sist  in  order  that  a  reduction  of  a  document 
may  be  brought  in  the  Court  of  Session,  for  it  is  provided  by  the  Sheriff 
Court  Act  of  1877  (40  &  41  Vict.  c.  50,  s.  11)  that  "when  in  any  action 
competent  in  the  Sheriff  Court  a  deed  or  writing  is  founded  on  by  either 
party,  all  objections   thereto   may  be  stated  and  maintained  by  way  of 


SLAIXS,  LETTEES  OF  345 

exception  without  the  necessity  of  bringing  a  reduction  thereof  "  {Nixison, 
11  E.  189).  Actions  have  been  sisted  in  order  that  an  eik  to  an  imperfect 
inventory  might  be  procured  {Bridges,  11  S.  335) ;  that  a  judicial  factor 
might  be  appointed  to  a  trust  estate  {Morrison,  1  E.  116);  that  an  action 
of  relief  by  the  defenders  wi^e?'  se  might  be  brought  {Macritchies  &  Murray, 
5  S.  212,  X.  E.  226);  that  an  action  for  bringing  all  parties  into  Court 
might  be  brought  {Duke  of  Abcrcorn,  7  M.  875) ;  that  the  arbiter's  award 
in  a  reference  might  be  issued  {Wilson  &  Macfarlane,  25  E.  655).  In 
counter  actions  for  divorce,  one  was  sisted  till  the  other  was  ripe  for 
judgment  {Brodie,  8  M.  854).  As  a  rule,  an  action  to  enforce  a  liquid  claim 
will  not  be  sisted  to  await  the  issue  of  one  to  constitute  an  illiquid  claim 
{M'JDougaWs  Trs.,  11  D.  1113 ;  Fcglcr,  4  E.  435),  unless  the  illiquid  claim  is 
in  the  immediate  course  of  being  liquidated  (Ersk.  iii.  4.  16 ;  Munro,  4  M. 
687). 

It  used  to  be  the  practice  of  the  Court  to  grant  a  sist  when  objection 
had  been  taken  to  a  document  on  the  ground  of  insufficient  stamjjing,  in 
order  that  it  might  be  properly  stamped  {Rattan,  11  S.  727).  Since  the 
Court  of  Session  Act  (31  &  32  Yict.  c.  100,  s.  41),  and  the  Stamp  Act,  1870 
(33  &  34  Yict.  c.  97,  s.  16),  superseded  by  the  Stamp  Act,  1891  (54  &  55 
Vict.  c.  39,  s.  14),  the  objection  may  be  obviated  in  any  Court  by  the  party 
who  founds  on  the  document  paying  into  Court  the  amount  of  the  stamp 
duty  with  penalties,  and  it  is  probable  that  a  sist  on  this  ground  would  not 
now  be  allowed. 

"  "Where  the  relative  action  is  in  dependence  in  an  English  or  foreign 
Court,  there  will  be  greater  difficulty  in  obtaining  a  sist  {Phosphate  Sewage 
Co.  V.  Mollison,  1876,  3  H.  L.  Sc.  App.  77).  .  .  •  But  wliere  the  foreign  Court 
■appears  to  be  the  more  appropriate  tribunal  for  deciding  the  questions 
raised,  and  in  particular  if  the  foreign  sist  was  lirst  brought,  the  Court  of 
Session  is  in  use  to  sist  process,  or  even  to  decline  to  exercise  its  own 
jurisdiction  {Wotherspoon,  9  M.  510)" — Mackay,  Mamial,  p.  267.  The 
Court  has  refused  to  sist  an  action  on  the  ground  that  an  ajipeal  in  a 
relative  action  is  in  dependence  {Phillij^s  v.  Johnston,  Sharpc,  &  Co.,  1820, 
Hume's  Decisions,  p.  17  ;  Baillie,  8  D.  1129  ;  Livingstone,  20  D.  1231);  and 
even  though  the  actions  are  related,  the  Court  has  refused  a  sist  where 
expediency  is  the  other  way  {Mitchell,  17  D  228  ;  Stephens  Tr.,  33  Sc.  Jur. 
369  ;  M'Connochie,  11  D.  1419). 

Where  there  is  anotlier  action  in  dependence  raising  the  same  question 
of  law,  and  likely  to  be  decided  sooner,  parties  may  move  by  joint  motion 
that  the  later  action  should  be  sisted.  Either  party  lias  a  riglit  to  get  a 
decision  in  his  own  case  as  soon  as  possil)le,  so  that  the  Court  will  not  grant 
tlie  motion  except  by  consent  of  both  parties. 

Sisted  actions  may  be  revived  on  recalling  the  sist,  which  may  be 
done  either  on  the  completion  of  the  proceedings  for  wliicli  it  was  allowed, 
or  on  the  failure  of  tlie  j»ni]»er  party  to  proceed  diligently  with  them. 

[Mackav,  Manual  of  Practicr  in  the  Court  of  Session,  ]•]).  264-268  ;  J)ovo 
Wilson,  The  Practice  of  the  Sheriff  Courts,  pp.  61,  259-261  ;  lialfour.  Court 
of  Session  Practice,  p.  55  ;  Coldstream,  Procedure  in  the  Court  of  Session,  p.  21.] 

Si  sine  liberis. — Sec  Conditio  si  sink  LinEitis. 

Slains,  Letters  of — This  obsolelc,  legal  writ,  which  was  in 
■common  use  two  centuries  ago  in  connection  with  the  administralinn  of 
Scottish  criminal  law,  derived  its  origin  from  the  ]>riniilive  concepLion  of 
crime  as  an  injury  done  to  the  individual  rather  than  t(j  the  Slate.     JJefore 


346  SLAINS,  LETTERS  OF 

the  infliction  of  punishment  for  the  commission  of  crimes  had  come  to  he 
regarded  as  a  public  duty  rather  than  a  private  right,  and  while  criminal 
jurisdiction  was  still  in  its  infancy,  it  was  the  custom  for  the  kindred  of  a 
murdered  man  to  institute  a  blood-feud  or  vendetta  against  the  murderer, 
which  was  only  expiated  by  the  offender's  blood.     In  course  of  time  the- 
more  sophisticated  practice  arose  of  the  murderer  buying  off  the  vengeance- 
of  his  victim's  representatives  by  making  payment  to  them  of  a  sum  of 
money  or  other  compensation,  variously  known  as  Cro,  Wergild,  or  Eric.     So 
inherent  in  the  conception  of  the  crime  of  homicide  was  this  right  on  the 
part  of  the  representatives  of  the  murdered  person  to  exact  compensation, 
or,  as  it  came  to  be  termed,  assythment,  from  the  oftl-nder,  that  it  continued 
to  subsist  concurrently  with,  and  long  after  the  institution  of,  publip  pro- 
secution.    Logically  enough,  in  view  of  the  origin  of  their  claim,  the  kindred 
could  not  demand  an  assythment  where  the  nmrderer  suflered  execution  at 
the  hands  of  the  law,  his  blood  being  regarded  as  a  full  satisfViction  to  them, 
but  where  the  criminal  ^vas  not  put  to  deatli  they  were  held  entitled  to  a 
composition  in  lieu  thereof.     In  particular,  the  prerogative  of  pardon  vested 
in  the  king  as  the  supreme  representative  of  the  public  interest,  could  only 
be  properly  exercised  by  him  subject  to  the  rights  in  this  respect  of  the 
deceased's  kinsmen,  and  the  criminal    Courts  would  not  admit  any  royal 
remission  unless  it  safeguarded  these   rights.     It  accordingly  became  the 
]iractice  for  persons  who  had  committed  homicide,  and  who  desired  to  secure 
an  effectual  pardon  from   the    Crown  which  would   be   recognised  by  the 
Courts,  first  to  approach  the  deceased's  next  of  kin  and  obtain  from  them  a 
writ  stating  that  their  claims  had  l)een  satisfied.     These  writs  weie  known 
as  Letters  of  Slains.     They  nai rated  the  circumstances  of  the  murder,  the 
remorse  of  the  perpetrator,  the  payment  of  the  assythment,  the  forgiveness 
of  the  crime  and  the  exoneration  of  the  offender  from  all  civil  and  criminal 
action  in  relation  to  the  murder,  and  they  concluded  with  a  prayer  to  the 
Crown  to  grant  a  full  pardon  and  remission  to  the  murderer,  and  to  dispone 
to  him  his  moveable  escheat  forfeited  by  the  crime.     Letters  of  Slains  were 
properly  granted  by  the  principal    persons    of   the   four   branches  of   the 
deceased's  next  of  kin,  if  known,  or  by  the  majority  of  his  next  of  kin  and 
friends,  or  by  as  many  of  them  as  were  known,  so  that  they  might  embrace 
all  who  could  reasonably  be  regarded  as  injured  by  the  deceased's  death,  or 
entitled  to  assythment  therefor,  and  who  in  former  times  would  have  pur- 
sued a  blood-feud  against  the  murderer.     AVhere  Letters  of  Slains  were  not 
produced,  the  king  could  only  grant  remission  on  the  prayer  of  the  deceased's 
kinsfolk  otherwise  made  to  him,  or  subject  to  a  proviso  that  their  satisfaction 
should  be  a  condition  ]irecedent  of  the  pardon  taking  effect.     Such  royal 
remissions  were  appropriately  granted  only  in  ca?es  of  unintentional  man- 
slaughter, or  of  homicide  without  malice  aforethought ;  but  this  principle  was 
not  strictly  observed,  and  the  royal  prerogative  of  pardon  was  frequently 
abused.     Although  assythment  was    also   due   for   other   criminal  wrongs 
short  of  homicide.  Letters  of  Slains  were  only  appropriate  to  the  latter,  and 
royal  remissions  of  less  serious  crimes  did  not  require  such  letters.     A  party 
who  had  obtained  decree  for  an  assythment  was  bound,  before  executing  his 
decree,  to  deliver,  or  at  least  tender,  suthcient  Letters  of  Slains  to  the  offender, 
or,  in  the  case  of  mutilation   or   other   crimes    less  serious  than  murder, 
sufficient  Letters  of  Eeconciliation. 

[See  article  Assythment  ;  Kames,  Lmo  Tracts,  2nd  ed.,  article  I.,  esp. 
pp.  53-57  ;  Essays  on  Anglo-Saxon  Law,  Boston,  1876,  pp.  262  seq. ;  Bankt.  i. 
pp.  246-248;  Balfour,  Practices,  pp.  516-518;  Hume,  i.  284-286,  ii.  122-124; 
Alison,  i.  91;  More's  Stair,  i.  9.  7  and  Iviii;  Ersk.  iv.  4.  105;  Bell,  Pnn. 


SLAUGHTEE-HOUSES  ;  KNACKEE'S  YAEDS  347 

s.  2029;  Statutes  1592,  c.  157;  1593,  c.  173.  Dallas  gives  the  form  of 
Letters  of  Slains  at  p.  862,  and  of  Eoyal  Eemissious  at  pp.  655-657  of  his 
System  of  Stiles.] 

Slander. — See  Defamation. 

Slander  of  Title. — A  statement  concerning  title  to  property 
which  is  false,  malicious,  and  the  cause  of  special  damage  is  actionable 
(Bruce,  1898,  6  S.  L.  T.  110).  The  law  on  this  subject  is,  however,  more 
developed  in  England  (Addison  on  Tort,  p.  258)  than  in  Scotland,  in  which 
country  there  are  few  instances  of  such  actions  (Gleggon  Reparation,  p.  108). 
Allecrations  at  sales  of  auction  that  the  vendor's  title  is  defective  furnish 
the  leading  examples  {Philip,  1816,  Hume's  Dec.  865 ;  Yea,  1868,  5  S.  L.  E. 
253  ;  Grutsole,  1836,  1  M.  &  W.  495,  501).  A  case  in  which  the  pursuer,  an 
engineer,  complained  of  defenders  having  raised  an  interdict  against  him  in 
which  they  claimed  the  exclusive  right  of  making  certain  machinery,  failed 
from  want  of  relevant  averment  of  special  damage  and  malice  {Harpers, 
1896,  4  S.  L.  T.  177).  Actions  of  slander  fur  statements  concerning  the 
quality  or  condition  of  goods  and  property  are  of  a  similar  character.  An 
action  was  sustained  in  which  the  pursuer  averred  that  the  defenders  in 
their  newspaper  had  represented  that  certain  buildings  of  his  were  in  danger 
of  collapsing,  that  the  defender  had  done  so  intending  to  depreciate  their 
value,  and  that  the  value  had,  in  fact,  been  depreciated  thereby  {Bruce, 
supra).  Allegations  against  the  quality  of  shopkeepers'  goods,  such  as 
milk  {M'Lean,  1888,  16  E.  175)  and  bread  {Broomficld,  1868,  6  M.  563), 
have  also  been  regarded  as  of  this  character,  thongh  in  the  cases  cited  the 
pursuer  failed. 

Slaughter-Houses;  Knacker's  Yards.— The  estab- 
lishment, licensing,  and  regulation  of  premises  for  slaughtering  cattle  and 
other  animals,  whether  for  human  food  or  otherwise,  are  provided  for  in 
several  statutes,  viz.  The  Public  Health  (Scotland)  Act,  1897;  The  Burgh 
Police  (Scotland)  Act,  1892;  and  The  Cruelty  to  Animals  (Scotland)  Act, 
1850  ;  the  last  named  applying  only  to  knacker's  yards.  As  these  regula- 
tions cover  to  some  extent  the  same  ground,  and  are  in  similar,  though  not 
identical  terms,  a  precise  statement  of  the  law  is  somewhat  diiVicult.  It 
will  be  convenient  to  deal  with  them  as  they  allect 

I.  Licensing  of  Slaughter-Houses,  etc. 

11.  Provision  of  Slaughter-Houses  by  local  authorities. 

I.  LiCEXsiNG  OF  Slauohtek-Houses,  etc. 

(a)  Under  the  Public  Health  Act,  1897. — This  statute,  which 
applies  both  to  the  burghal  and  landward  districts,  requires  that  a  yearly 
licence,  for  which  a  fee  of  5s.  may  be  cliarged,  must  bo  ol»tained  for  all 
premises  used  as  a  slaughter-house  or  knacker's  yard,  uniler  a  ])enalty  of 
£5.  Twenty-one  day.s'  notice  must  be  given  of  application  for  a  new  licence, 
and  objectors  heard  (.s.  33). 

In  addition  thereto,  all  prcmi.ses  established  as  a  slau-^liter-house  or 
knacker's  yard  since  1st  January  189H,  fall  under  the  regulations  of  the 
P.  II.  Act  regarding  od'ensive  trades,  and  must  receive  the  sanction  of  the 
local  autliority,  under  a  penalty  of  £50,  and  £25  fur  each  day's  continuance 
after  conviction.  The  sanction  of  the  local  authority,  which  nnist  be  given 
by  f»r(ler,  after  fourteen  days'  notice  and  hearing  of  objectors,  docs  not 
require  renewal.     A  lee  of  40s.  is  exigible  therefor  (s.  .''2  ( 1 ),  (2)).     Such 


348  SLAUGHTEE-HOUSES ;  KNACKEK'S  YAEES 

licence  or  sanction  does  not  amount  to  a  warrant  to  commit  a  nuisance,  and 
does  not  deprive  a  x:)erson  injured  of  his  remedy  at  common  law  {Pentland, 
1855,  17  D.  542). 

Apimd. — Appeal  may  be  taken  from  the  resolution  of  the  local  authority 
to  the  Board,  whose  decision  is  final,  provided  that  in  a  landward  district 
the  appeal  must  be  first  dealt  with  by  the  county  council.  It  is  to  be 
observed  that  in  the  case  of  a  licence  under  sec.  33,  the  right  of  appeal  is 
given  only  where  a  licence  is  refused  to  persons  carrying  on  such  businesses 
at  the  passing  of  the  Act,  or  where  a  renewal  is  refused ;  while  in  the  case 
of  offensive  trades,  under  sec.  32,  any  person  aggrieved  may  appeal. 

Bye-laws.— T\\Q  L.  A.  may  make  bye-laws  for  regulating  such  businesses, 
which,  in  addition  to  a  penalty  of  £5  for  each  offence,  and  40s.  for  each 
day's  continuance  after  written  notice,  may  empower  a  Sheriff  to  deprive 
temporarily  or  permanently  any  licensee  disobeying  the  same,  under  a 
penalty  of  £25  for  disobeying  such  order ;  with  appeal  to  the  Lord  Ordinary 
on  the  Bills  (s.  32  (4)). 

{h)  Under  the  Burgh  Police  Act,  1892.— 1.  SlaugJiter-Rouses.—As 
the  Public  Health  Act  (ss.  171,  190)  expressly  saves  the  provisions  of  the 
Burgh  Police  Act,  it  appears  that  slaughter-houses  within  a  burgh  must 
conform  to  the  regulations  contained  in  both  Acts.  By  sec.  278  of  the 
B.  P.  Act,  Police  Commissioners  are  empowered  to  license  slaughter-houses 
within  the  burgh,  the  licence  remaining  in  force  until  revoked  or  suspended 
(see  infra).  The  penalty  for  using  an  unlicensed  slaughter-house  is  £5, 
and  a  like  penalty  for  each  day's  continuance  after  conviction  (ss.  279, 
283). 

Bye-laws — The  Commissioners  may  make  bye-laws  for  the  regulation 
of  such  premises,  with  regard  to  proper  flooring,  draining,  water  supply, 
•etc.,  under  sanction  of  a  penalty  of  £5,  and  10s.  for  each  day's  continuance 
(s.  281).  Such  bye-laws  must  be  confirmed  by  the  Board  and  the  Secretary 
for  Scotland  (s.  318). 

Any  person  convicted  of  killing  or  dressing  cattle  contrary  to  the  Act  or 
bye-laws,  may,  for  a  first  offence,  have  his  licence  suspended  for  two  months; 
and  on  subsequent  conviction,  it  may  be  revoked.  Thereafter  the  Com- 
missioners may  refuse  to  grant  him  a  licence  (s.  282). 

2.  Knacker's  F«n/s.— Every  place  used  for  slaughtering  horses,  or 
■deposit  of  carcases,  must  be  licensed  by  the  Commissioners,  such  licences 
being  revocable  at  pleasure.  (But  note  that  under  the  I'ublic  Health  Act, 
such  licences  endure  for  a  year.)  The  penalty  for  contravention  is  £10, 
and  £2  for  each  day's  continuance  (s.  285).  But  the  fact  that  a  knacker 
Jias  on  emergency  kept  the  carcase  of  a  horse  for  a  night  in  unlicensed 
premises  will  not  justify  a  conviction  {Simpson,  1896,  2  A.  G3).  It  is  also 
an  offence,  under  like  penalties,  to  convey  any  dead  horse  within  a  burgh, 
unless  sufficiently  covered  (s.  285) ;  and  by  sec.  381  (5)  a  penalty  of  403.  is 
imposed  on  anyone  slaughtering  or  dressing  cattle  in  any  public  place, 
except  when  for  public  safety  or  otherwise  an  animal  ought  to  be  killed 
on  the  spot. 

Bye-laws. — The  Commissioners  are  empowered  to  make  bye-laws  for 
inspection  and  regulation  of  knacker's  yards ;  and  also  for  reducing  their 
^noxious  effects  (s.  310  {h)  (1)  (G)).    Such  bye-laws  must  be  confirmed  as  above. 

(c)  Under  the  Cruelty  to  Animals  (Scotland)  Act,  1850.  —  In 
addition  to  the  licences  already  mentioned,  every  knacker's  yard  (whether 
in  burglial  or  landward  districts)  must  be  licensed  by  the  Sheriff  of  the 
■county,  in  conformity  with  the  above-named  Act.  It  provides  that  the 
•Sheriff  must  be  iatisfied  of  the  suitability  of  the  licensee,  but  it  imposes  no 


SLAUGHTER-HOUSES;  KNACKEE'S  YAEDS  349 

conditions  regarding  the  premises.  Such  a  licence,  for  which  a  fee  of  5s.  is 
exigible,  does  not  require  renewal.  The  licensee  is  bound  to  exhibit  over 
the  door  of  his  premises  a  notice,  "  Licensed  for  slauglitering  horses,  pur- 
suant 13  &  14  Vict.  c.  92,"  under  penalty  of  £5,  and  a  like  penalty  for  each 
day's  failure  (s.  3).  Ho  must  also  enter  in  a  book  a  description  of  the 
colour,  marks,  and  gender  of  every  beast  received  by  him,  and  must  produce 
or  permit  inspection  of  such  book  when  required  by  magistrate's  warrant, 
under  penalty  of  403.  (s.  4).  And  no  licensee  under  the  Act  may  at  the 
same  time  be  licensed,  or  trade  as  a  horse-dealer ;  if  he  obtain  both  licences, 
the  latter  is  declared  void  (s.  5). 

IL  Peoyision  of  Slaughter-Houses  by  Local  Authorities. 

(a)  In  Buegiis. — The  Burgh  Police  Act  empowers  Police  Commissioners 
to  provide  slaughter-houses,  within  or  without  the  burgh,  to  borrow  therefor 
upon  the  security  of  the  burgh  general  assessment,  the  dues  levied  for  use 
of  the  slaughter-house  and  ground,  or  any  of  them  (s.  278).  It  would  seem 
that  they  must  grant  consent  qua  local  authority,  to  the  establishment  of 
such  premises,  nnder  sees.  32  and  33  of  the  Public  Health  Act. 

Where  they  have  provided  slaughter-houses  out  of  the  police  or  other 
funds,  they  may  make  repayment  out  of  the  burgh  general  assessment,  or 
moneys  borrowed  on  security  thereof;  and  may  maintain  slaughter-houses, 
and  pay  annual  burdens  thereon,  out  of  any  funds  under  their  charge,  if  the 
dues  levied  be  insufficient  (ib.). 

Where  the  Commissioners  have  made  such  provision,  no  person  may 
slaughter  or  dress  carcases  except  in  such  slaughter-house  (unless  for  his 
own  consumption),  under  penalty  of  £5 ;  the  dues  chargeable,  in  case  of 
difference,  to  be  fixed  by  tlie  Sheriff,  wliose  decision  is  final.  To  prevent 
evasion,  all  carcases  slaughtered  within  two  miles  of  a  burgh  elsewhere 
than  in  a  licensed  slaughter-house,  are  chargeable  with  the  current  dues ; 
and  where  before  the  Act,  or  within  one  year  thereafter,  any  burgh  has 
erected  slaughter-houses,  no  other  may  be  erected  witliin  two  miles,  unless 
with  consent  of  the  Commissioners  or  within  another  burgh  (s.  284). 

(h)  In  Counties. — Similar  powers  are  given  by  the  Public  Health  Act 
to  local  authorities  in  landward  districts  to  provide  and  maintain  slaughter- 
houses, either  within  or  without  their  district,  and  to  borrow  therefor  on 
security  of  the  public  health  general  assessment,  the  slaughter-house  dues, 
and  of  the  ground.  Two  or  more  local  authorities  may  combine  for  this 
purpose  (s.  34).  In  this  case,  as  in  that  of  burghs,  it  would  appear  that  the 
licence  and  .sanction  required  by  sees.  32  and  33  should  be  obtained,  in  order 
that  persons  interested  may  have  an  opportunity  of  stating  objections  to 
the  establishment  of  such  premises. 

Inspection. — The  local  authority  and  their  ofllcers  arc  cm])0wered  to 
enter  all  slaughter-houses  and  knacker's  yards,  for  purposes  of  inspection ; 
and  the  medical  officer  of  health  of  every  Iturgh  must  report  twice  yearly 
to  tlic  Comnussioners  on  the  sanitary  condition  of  iill  •■^laugliter-houses 
therein  (V..  P.  Act,  s.  280 ;  P.  H.  Act,  8.  33  (G)). 

The  powers  of  the  Board  of  Agriculture  and  of  local  authorities  under 
the  Contngious  Diseases  (Animals)  Acts  are  not  ad'ected  by  the  Burgh 
Police  Act  (s.  280). 

Ecfercnce  may  Ijc  made  to  tlic  Markets  and  Fairs  Clauses  Act,  1847, 
whicli  contains  certain  regulations  regarding  slaugliter-houses,  where  that 
Act  has  been  adf»])ted  (ss.  17-20). 

[MacDongall  and  Murray,  Handbook  of  I'ublic  llcalih ;  Irons,  Limjh 
J'olicc  Act.] 


o  - 

■00 


0  SMxVLL  DEBT  COUET  (SHEEIFF) 

Small  Debt  Court  (Sheriff). 

I.   JumSDICTIOX. 

II.  Conduct  of  Pkoceedings: 
I'roceedings,  Summary. 
Parties,  how  represented. 
Court  Days  and  Circuit  Courts. 
III.  Competent  AcTio.xs : 
Value  Limit. 
Eemitting  to  and  from  Ordinary  Court. 

IV.    PltOCKDURE  : 

1,  Ordinary  Actions : 
Summons. 
Citation. 
Arrestment. 
Counter  Claims. 
Sisting  Parties. 
"Witnesses. 
Heaving. 

Decree  and  Judgment. 
Eeponing  against  Decree  in  Absence. 
Eehearing  after  Absolvitor  in  Absence. 
Extract  of  Decree. 
Execution. 
Poinding  and  Sale. 
Imprisonment. 

2.  Multiplepoindings. 

3.  Forthcomings. 

4.  Sequestrations, 

5.  Ejection. 

6.  Employers  and  Workmen  Act,  1875. 

(a)  Workmen. 
(h)  Apprentices. 
V.  Appeal. 


The  Acts  regulating  the  Sheriff  Small  Debt  Court  are  the  Small  Debt 
Act  of  1837,  1  Vict.  c.'41  (as  amended  by  the  Act  of  1853,  16  &  17  Vict, 
c.  80,  s.  28,  and  44  &  45  Vict.  c.  33,  s.  3),  and  the  Small  Debt  Amendment 
Act  of  1889,  52  &  53  Vict.  c.  26.     • 

I.  Jurisdiction. 

In  the  Small  Debt  Court  the  Sheriti^  has  all  the  jurisdiction  of  the 
ordinary  Sheriff  Court,  but  exercises  it  according  to  the  forms  and  wnli 
the  additional  facilities  provided  by  the  Small  Debt  Acts  (see  Scott,  1846, 
5  Bell's  A.  C.  126  ;  Fraser,  1867,  6  M.  170  ;  Wilson,  1878,  5  E.  981  ;  3Iassu, 
3  S.  L.  T.  No.  450).  The  only  limit  to  the  jurisdiction,  as  compared  with 
that  of  the  ordinary  Court,  is  a  value  one.  The  debt  or  demand  which  can 
be  sued  in  the  Small  Debt  Court,  or,  in  a  multiplepoinding,  the  fund  in  medio, 
must  not  exceed  the  value  of  £12,  exclusive  of  expenses  and  fees  of  extract; 
and  the  pursuer  in  all  cases  is  held  to  have  passed  from  and  abandoned 
•any  remaininrf  portion  of  any  debt  or  demand  beyond  the  sum  actually 
concluded  for  (1  Vict.  c.  41,  s.  2  ;  16  &  17  Vict.  c.  80,  ss.  26,  28).     By  the 


SMALL  DEBT  COUET  (SHERIFF)  351 

Act  of  1889  the  jurisdiction  was  extended  by  giving  the  Sheriff  power  to 
grant  orders  for  the  delivery  of  corporeal  moveables,  the  value  of  M-hich 
must  be  proved  to  the  satisfaction  of  the  Sheriff  not  to  exceed  £12,  at  the 
instance  of  any  person  claiming  to  be  the  owner  or  to  be  entitled  to  the 
possession,  which  is  unlawfully  withheld,  of  such  moveables;  or,  where 
delivery  is  impossible,  or  where  the  value  is  alternatively  concluded  for,  the 
Sheriff  may  give  decree  for  their  value  to  an  amount  not  exceeding  the 
sum  of  £12  (52  &  53  Vict.  c.  26,  s.  2).  The  Act  of  1837  gave  the  power  to 
prosecute  for  statutory  penalties  in  the  Small  Debt  Court,  but  this  has  been 
taken  away  (44  &  45  Vict.  c.  33,  s.  3). 

Certain  defenders  not  subject  to  the  jurisdiction  of  the  ordinary  Sheriff 
Court  are  amenable  to  that  of  the  Small  Debt  Court.  Where  the  summons 
in  any  small  debt  case  concludes  against  two  or  more  defenders,  and  such 
defenders  reside  in  different  counties  of  Scotland,  the  Sheriff  of  the  county 
in  which  one  or  more  of  such  defenders  reside  may,  on  the  motion  of  the 
pursuer,  and  on  being  satisfied  that  such  course  is  expedient,  grant  warrant 
for  the  summons  to  be  issued  against  any  or  all  of  the  defenders  to  appear 
and  answer  at  such  time  and  place  as  he  may  appoint ;  and  all  such 
defenders  become  thereupon  amenable  to  his  jurisdiction  (Act  of  1889,  s.  3). 
There  is,  however,  no  power  of  remitting  to  the  Court  of  another  sheriOdom, 
however  expedient  it  may  be  to  do  so. 

The  provision  of  the  Sheriff  Court  Act  of  1876,  whereby  a  person 
carrying  on  a  trade  or  business,  and  having  a  place  of  business  within  a 
county,  is  subject  to  the  jurisdiction  of  the  Sheriff  thereof  in  any  action, 
notwithstanding  that  he  has  his  domicile  in  another  countv,  applies  also  to 
the  Small  Debt  Court  (39  &  40  Vict.  c.  70,  s.  46 ;  Act  of  1889,  s.  5). 

In  such  a  case  it  is  in  the  power  of  the  Sheriff,  on  sufficient  cause  sliown, 
to  remit  the  case  to  the  Court  of  the  defender's  domicile  in  another 
sheriffdom  (ib.). 

IL  Conduct  of  Proceedings, 

Proceedings,  Summary. — The  proceedings  are  conducted  summarily.  The 
only  documentary  pleading  is  the  summons,  which  may  be  written  or 
printed,  or  partly  written  and  partly  printed  (Act  of  1889,  s.  5 ;  Slierilf 
Court  Act,  1876,  s.  7).  No  record  of  the  evidence  is  kept.  The  only  record 
of  the  proceedings  is  contained  in  a  book  kept  by  the  sheriff  clerk,  wherein 
all  cases  are  entered,  setting  forth  the  names  and  designations  of  the  parties, 
and  whether  present  or  absent  at  the  calling  of  the  case,  the  nature  and 
amount  of  the  claim  and  date  of  giving  it  in,  and  the  mode  of  citation. 
The  several  deliverances  or  interlocutors,  if  any,  and  the  final  decree,  with 
the  date  thereof,  in  each  case  are  recorded  in  the  book,  wliich  is  signed  at 
the  conclusion  of  each  Court  day  by  the  Sheriff  (Act  of  1837,  s.  17).  A  roll 
of  the  cases  is  made  up  l)y  tlie  sheriff  ch-rk,  and  must  be  exhibited  to  the 
public  in  some  ])atent  part  of  the  Court-house  at  least  one  hour  jjrcvious  to, 
and  continue  there  during  the  whole  of,  the  sitting  (ili.).  The  tal)le  of  fees 
must  be  hung  up  in  the  Court-room  during  every  sitting,  and  at  all  times 
in  the  sheriff  clerk's  office  (ib.  s.  3.'5). 

ParlirR,  hoio  rrprescnted. — Any  party  may  now  ajipcar  by  or  with  a 
duly  qualified  agent  (Act  of  188!>,  s.  8)  without  first  olilaining  the  leave  of 
the  Sheriff,  wliich  was  formerly  neces.sary.  The  Sheriff  may  award  reason- 
able remuneration  not  exceeding  five  shillings  an  hour  to  such  agents  in 
giving  ex])en8e3  (ib.).  A  notary  i)ubli(;  may  appear  as  agent  (Milne,  1888, 
15  I{r460). 

At  common  law  a  party,  if  he  so  chooses,  may  appear  by  himscK,  and 


352  SMALL  DEBT  COUET  (SHEEIFF) 

by  statute  be  may  be  represented  by  one  of  his  family  or  by  such  person, 
not  being  an  officer  of  Court,  as  the  Sheriff  may  allow  (Act  of  1837, 
ss.  14  and  15). 

Court  Days  and  Circuit  Courts. — There  are  no  statutory  dates  for  Court 
days.  These  may  be  fixed  and  adjourned  at  convenience  (Act  of  1837> 
s.  15 ;  1  &  2  Vict.  c.  119,  s.  12 ;    Wcatherstone,  1860,  3  Irvine,  589). 

In  addition  to  the  ordinary  Small  Debt  Courts,  Circuit  Courts  for  the 
hearing  of  small  debt  cases  are  held  for  sub-districts  (Act  of  1837,  s.  26) 
of  sheriffdoms  on  various  occasions,  in  different  places,  throughout  the  year. 
The  times  and  places  of  such  Circuit  Courts  are  regulated  by  the  Act  of 
1837,  s.  23,  and  may  be  altered,  or  the  Courts  discontinued,  as  expedience 
or  necessity  dictates  {ih.,  s.  24).  They  must  be  held  either  by  the  Sheriffs 
or  their  Substitutes;  and  by  16  &  17  Vict.  c.  80,  s.  46,  each  Sheriff  must, 
once  in  the  year,  go  on  the  Small  Debt  Circuit  in  use  to  be  held  by  the 
Sheriff-Substitute.  Subject  to  the  power  of  adjourning,  the  Sheriff  or 
Substitute  must  remain  at  the  place  of  the  Circuit  Court  till  all  cases  ready 
for  hearing  are  disposed  of  (Act  of  1837,  s.  23).  The  various  districts  for 
Circuit  Courts  are  fixed,  and  may  be  altered,  in  terms  of  the  Act  of  1837, 
s.  26.  All  cases  must  be  brought  before  the  ordinary  Small  Debt  Court, 
or  any  Circuit  Small  Debt  Court  within  the  jurisdiction  of  which  the 
defender  may  reside,  or  to  the  jurisdiction  of  which  he  may  be  amenable 
{ib)\  that  is  to  say,  the  defender  may  in  the  option  of  the  pursuer,  be 
convened  either  in  the  principal  or  in  the  circuit  Court  {M'Grcgor,  1868, 
1  Couper,  92). 

If  there  are  in  one  case  different  defenders  amenable  to  different 
jurisdictions,  or  if  in  any  case  the  Sheriff,  on  cause  shown,  thinks  it  expedient, 
he  may,  on  application  by  the  pursuer,  made  either  verbally  in  open  Court 
or  by  writing  lodged  with  the  sheriff  clerk,  order  the  summons  to  be  issued  in 
and  the  case  brought  before  either  his  ordinary  Small  Debt  Court  or  any 
of  his  Circuit  Courts  as  may  appear  most  convenient  (Act  of  1837,  s.  26). 

Where  ji'T-rties  fail  to  appear  by  themselves  or  properly  represented, 
decree  is  given  against  them  unless  a  sufficient  excuse  for  delay  is  stated ; 
on  which  account,  or  on  account  of  the  absence  of  witnesses,  or  any  other 
good  reason,  it  is  always  competent  to  the  Sheriff  to  adjourn  any  case  to 
the  next  or  any  other  Court  day  {ib.,  s.  15).  Where  the  ends  of  justice 
and  the  convenience  of  the  parties  require  it,  the  Sheriff  may  remove  the 
further  hearing  of  any  case  from  his  ordinary  to  any  of  his  Circuit  Courts 
or  vice  versd,  or  from  one  Circuit  Court  to  another,  or  to  any  diet  of  his 
ordinary  Court  (ib.,  s.  27),  or  to  any  other  time  or  place  specially  appointed 
{ib. ;   Wcatherstone,  1860,  3  Irvine,  589). 

III.  Competent  Actions. 

Vahte  Limit. — All  claims  for  payment  of  money  which  would  be  competent 
in  the  ordinary  Court  are  competent  in  the  Small  Debt  Court,  provided  the 
sum  sued  for  does  not  exceed  £12  (Act  of  1837,  s.  2,  Sched.  A,  No.  1). 
Actions  for  delivery  of  corporeal  moveables  not  exceeding  £12  in  value  are 
also  competent  (Act  of  1889,  s.  2,  Sched.  A). 

The  criterion  by  which  it  is  judged  whether  a  pecuniary  action  is  wdthin 
the  £12  limit  is  the  amount  which  is  sought  to  be  recovered  in  the  action 
at  the  date  of  raising  it.  If  the  sum  sued  for  is  more  than  £12,  it  may  be 
restricted,  the  pursuer  being  held  to  have  passed  from  and  abandoned  any 
portion  of  his  claim  over  and  above  that  amount.  But  where  such  a  sum 
has  been  restricted  and  further  sums  have  been  disallowed  by  the  Sheriff, 
these  latter   are    deducted,  not   from    the    sum    so   restricted,  but  from 


SMALL  DEBT  COUET  (SHERIFF)  353 

the  sum  orioinally  sued  for  {DalrjUsh,  1883,  20  S.  L.  E.  412).  Separate 
claims  on  different  grounds  against  one  defender,  though  amounting 
together  to  more  than  £12,  are  competent  if  made  in  separate  actions 
(Frascr,  1870,  42  Scot.  Jur.  396).  If  the  sum  sued  for  is  itself  not  over 
£12,  the  fact  tliat  the  claim,  if  allowed,  infers  liability  for  a  larger  amount 
does  not  make  the  action  incompetent  (CaldurU,  1876,  3  E.  "(J.  C.)  31 ; 
Guthrie's  Select  Cases,  p.  417).  The  expenses  of  raising  and  carrying  on  the 
action  are  not  taken  into  account  in  computing  the  value  of  the  claim. 

In  the  case  of  actions  for  the  delivery  of  corporeal  moveables,  it  is  to  be 
noticed  that  the  value  must  in  all  cases  be  proved  to  the  satisfaction  of  the 
Sheriff  (Act  of  1889,  s.  2).  Ordinary  legal  proof  of  value  is  necessary 
whether  the  case  be  defended  or  not.  Proof  may  be  by  admission  of  the 
defender  (parole  is  sufficient),  or  by  the  sworn  testimony  of  witnesses,  or  by 
report  on  remit  from  the  Sheriff;  but  there  is  nothing  empowering  the 
Sheriff  to  satisfy  himself  with  anything  less  than  ordinary  legal  proof. 

Remitting. — In  any  case  before  the  ordinary  Court  concluding  for  a 
sum  not  greater  than  £12,  or  where,  if  concluding  for  more,  the  sum  has  by 
interim  decree  or  otherwise  been  reduced,  previous  to  the  closing  of  the 
record,  so  as  not  to  exceed  £12,  the  Sherifi' may,  with  the  pursuer's  consent, 
remit  the  case  to  the  Small  Debt  Court,  either  on  his  own  motion  or  on 
that  of  any  party  in  the  cause,  and  the  case  proceeds  as  if  it  had  originated 
there  (Act  of  1837,  s.  4;  P7a7?>,  1868,  1  Coup.  87).  The  pursuer  may 
refuse ;  but  if  he  does  so,  the  Sheriff  may  decline  to  allow  him  in  the  ordinary 
Court  expenses  greater  than  he  could  have  recovered  in  the  Small  Debt 
Court  {ih.,  s.  36).  The  defender  may  appeal  to  the  Sheriff  against  any  such 
remit  {ih.,  s.  4).  There  is  no  similar  power  of  remitting  in  the  case  of 
actions  for  delivery  of  moveables. 

Any  case  in  the  Small  Debt  Court  wliicli  the  Sheriff  considers  unfitted, 
in  consequence  of  its  special  circumstances  or  of  any  difficulty  in  point  of 
law,  for  summary  trial,  may  be  remitted  to  the  ordinary  Court.  It  is 
sufficient  to  effect  this  tliat  the  Sheriff  should  order  any  of  the  pleadings  to 
be  reduced  to  writing.  Every  case  in  which  such  an  order  has  been  made 
must  thereafter  be  conducted  according  to  the  ordinary  forms  and  proceed- 
ings of  the  ordinary  Court,  as  if  it  had  originated  there  {ih.,  s.  14). 

In  addition  to  these  ordinary  petitory  actions,  actions  of  multiple- 
poinding  and  furthcoming  and  sequestrations  for  rent  are  competent. 

Actions  under  the  Employers  and  Workmen  Act  of  1875  are  competent 
where  the  sum  claimed  does  not  exceed  £10,  and,  in  the  case  of  apprentices^ 
where  no  premium  is  paid  or  where  it  is  under  £25  (38  &  39  Vict.  c.  90). 

IV.   PUOCEDURE. 

I.  OuDiNAiiY  ACTIOX.S. — Suvivions. — The  summons  is  in  the  form  given 
in  Sched.  A  of  the  Act  of  1837.  It  contains  a  warrant  to  arrest  u])on  the 
dependence,  and  states  .sliortly  the  origin  of  the  debt  or  ground  of  action 
{ih.,  s.  3).  Whenever  po.s.sible,  the  date  of  the  cause  of  action,  or,  where 
the  action  is  founded  on  an  account,  the  last  date  in  the  account,  must  Ic 
inserted  (Sched.  A).  Tlie  ground  of  action  must  be  relevantly  set  forth, 
though  not  necessarily  in  detail  (Gla-viov)  and  South- U\sla-n  llaihcoy,  1855, 
2  Irv.  162;  Moirat,  1856,  2  Irv.  435;  Cox,  1877,  4  11.  8  ;  Aillm,  1855. 
2  Irv.  156).  If  it  is  an  account  that  is  sued  for,  a  copy  of  it  must  be 
delivered  to  the  defender  (Sched.  A). 

Wliere  tlie  action  is  for  delivery  of  moveabh'S,  the  .sulijects  sued  for  are 
enumerated  in  a  list  annexed  to  the  summons;  tlie  ground  of  action  is 
shortly  specified,  and  whenever  possible  the  date  of  its  occurrence  is  given 

8.  E.— VOL.  XI.  23 


354  SMALL  DEBT  COURT  (SHEPJFF) 

(Act  of  1889,  Sclied.  A).  Tlie  conclusion  for  delivery  may  be  combined  with 
an  alternative  one  for  the  value  of  the  subjects,  and  in  any  case  where 
delivery  has  become  impossible,  decree  may  be  given  for  the  value  (ib., 
s.  2). 

In  the  event  of  the  summons  being  lost  or  destroyed,  a  copy  of  it,  proved 
in  the  action  to  the  satisfaction  of  the  Sheriff  before  whom  the  action  is 
depending,  and  authenticated  in  such  manner  as  he  may  require,  may  be 
substituted  {ih.,  s.  5). 

The  provisions  of  the  Sheriff  Court  Act  of  1876  with  regard  to  amend- 
ments in  the  ordinary  Court  have  been  adopted  in  the  Small  Debt  Court 
{ib.,  s.  5 ;  Act  of  1876,  ss.  13  and  24).     See  Amendment  of  Eecord. 

The  table  of  fees  in  use  in  the  Small  Debt  Court  must  be  printed  on  the 
summons ;  and  the  sheriff  clerk,  if  he  fail  to  see  that  this  is  done  before 
issue  of  a  summons,  may  be  fined  (Act  of  1837,  s.  33). 

Citation. — Except  in  the  respects  undernoted,  citation  in  the  Small  Debt 
Court  is  regulated  by  the  rules  of  the  ordinary  Sheriff  Court  (Act  of  1889, 
s.  5  ;  Sheriff  Court  Act,  1876,  s.  12).  The  defender  is  summoned  to  appear 
at  the  Court  and  on  the  date  specified  in  the  summons,  which  date  must 
not  be  sooner  than  the  sixth  day  subsequent  to  the  citation.  The  fact  that 
citation  has  been  duly  made  may  be  established  either  by  an  execution  or 
by  the  sworn  testimony  in  Court  of  the  officer,  or,  where  postal,  in  terms  of 
the  Postal  Citation  Act,  45  &  46  Vict.  c.  77 ;  and  all  citations  given  by  an 
officer  alone  without  witnesses,  and  the  executions  thereof  subscribed  by 
such  officer,  are  good  and  effectual  (Act  of  1837,  s.  3 ;  34  &  35  Vict.  c.  42, 
s.  4).  Eor  forms  of  citation  and  execution,  see  Act  of  1837,  Sched.  A. 
Where  citation  is  by  officer,  it  may  be  given  by  any  sheriff-officer  of  any 
county  without  the  necessity  of  any  indorsation  (Act  of  1889,  s.  11). 

In  the  case  of  a  defender  refusing  access  or  concealing  himself,  or  where 
he  has  within  forty  days  removed  from  the  premises  occupied  by  him, 
leaving  his  whereabouts  unknown,  it  is  not  sufficient  for  the  officer  to  affix 
the  citation  to  the  gate  or  door,  or  leave  it  with  an  inmate.  He  must,  in 
addition,  send  in  a  registered  letter  a  copy  of  the  summons,  complaint,  decree, 
or  other  writ  to  the  address  which,  after  diligent  inquiry,  he  may  deem 
most  likely  to  find  the  defender,  or  to  his  last  known  address.  The 
execution  of  such  a  citation  must  state  that  the  officer  endeavoured  to  effect 
service  at  the  defender's  last  known  dwelling-place,  and  the  circumstances 
that  prevented  it,  and  must  be  accompanied  by  the  Post-Oflice  receipt 
for  the  registration  (Citation  Amendment  (Scotland)  Act,  1871,  34  &  35 
Vict.  c.  42,  s.  3). 

Arrestment. — The  summons  contains  a  warrant  to  arrest  upon  the 
depending  action  (Act  of  1837,  s.  3).  Any  sheriff-officer  of  any  county  may 
execute  the  warrant  without  the  necessity  of  any  indorsation  (Act  of  1889, 
s.  11),  and  no  witness  of  the  execution  is  necessary  (Act  of  1837,  s.  3).  All 
arrestments  cease  and  determine  after  the  expiry  of  three  months  from  their 
date,  without  the  necessity  of  any  decree  or  warrant  of  loosing,  unless  they 
are  renewed  by  a  special  warrant  or  order,  or  unless  an  action  of  furth- 
coming or  of  multiplepoindiug  has  been  raised,  in  which  case  they  subsist  till 
the  termination  of  such  action  (Act  of  1837,  s.  6).  Arrestments  may  be 
loosed  by  finding  caution  to  his  satisfaction  in  the  hands  of  the  sheriff 
clerk,  or  by  consigning  with  him  the  amount  sued  for,  with  an  additional 
sum  of  five  shillings  for  expenses  in  actions  for  sums  below  five  pounds, 
and  ten  shillings  in  cases  of  higher  amount  (Act  of  1837,  s.  8). 

Wages  cannot  be  arrested  on  the  dependence  (8  &  9  Vict.  c.  39). 

Counter  Claims. — A  copy  of  any  counter  claim  which  the  defender  means 


SMALL  DEBT  COUUT  (SIIEEIFF)  355 

to  plead  must  "be  served  on  the  pursuer  at  least  one  free  day  before  the  day 
of  appearance,  otherwise  it  cannot  be  heard  or  allowed  without  the  pursuer's 
consent  (Act  of  1837,  s.  11). 

Sistiiuj. — Where  a  pursuer  dies  or  assigns  his  right  as  pursuer,  or 
is  divested  of  his  estates  under  the  Bankruptcy  or  Cessio  Acts,  his  representa- 
tives, assignee,  or  trustee  may,  if  the  Sheriff  sees  fit,  be  sisted  in  his  stead. 
The  representatives,  assignee,  or  trusfee  make  verbal  application  to  be 
sisted  in  Court;  and  the  Sheriff,  if  he  grants  it,  writes  on  the  original 
summons  the  names  and  designations  of  the  applicants  and  the  character  in 
which  they  are  sisted  (Act  of  1889,  s.  4). 

So  where  a  defender  dies  or  is  divested  of  his  estates  under  the 
Bankruptcy  or  Cessio  Acts,  his  representatives  or  trustee  may  in  like  manner 
be  sisted  in  his  stead. 

Witnesses. — The  summons  contains  warrant  to  cite  witnesses,  and,  the 
proceedings  being  summary  and  adjournment  granted  only  on  cause  shown, 
Avitnesses  must  attend  the  first  calling.  Witnesses  duly  cited  are  compelled 
to  attend  on  pain  of  a  fine  not  exceeding  forty  shillings  for  failure ;  and 
letters  of  second  diligence  may  be  issued  to  compel  their  attendance.  A 
witness  must  be  cited  on  a  citation  of  at  least  forty-eight  hours;  and  a 
warrant  for  citation  is  good  all  over  Scotland,  provided  that,  if  citation  is 
made  in  any  county  other  than  that  in  which  it  was  issued,  it  must 
be  indorsed  by  the  sheriff  clerk  of  that  other  county  (Act  of  1857,  s.  12). 
No  witness  is  necessary  to  the  citation  {ib.,  s.  3 ;  34  &  35  Vict.  c.  42,  s.  4). 
Citation  of  witnesses  may  of  course  be  postal  (45  &  4G  Vict.  c.  77). 

Hraring. — At  the  hearing,  parties  are  heard  vivd  voce,  and  where  evidence 
is  necessary  the  witnesses  are  examined  on  oath  in  the  ordinary  way.  The 
parties  themselves  may  be  put  on  oath  in  case  of  oath  in  supplement  being 
required  or  a  reference  being  made,  and  if  the  Sherilf  sees  cause  he  may 
remit  to  a  person  of  skill  to  report.  Upon  special  cause  shown,  a  remit 
may  be  made  to  a  competent  person  to  take  and  report  in  writing  the 
evidence  of  any  witness  who  may  be  unable  to  attend.  But  of  all  these 
proceedings  no  record  is  kept  (Act  of  1837,  s.  13). 

Decree  and  Jiuhjment. — The  judgment  takes  the  form  of  an  order  which 
is  minuted  in  the  book  of  causes  kept  by  tlie  sheriff  clerk,  setting  forth 
wliat  sum  of  money  must  be  paid,  or  the  delivery  that  must  be  made,  or 
absolvitor  or  dismissal,  as  the  case  may  be,  witli  the  amount  of  expenses,  if 
any  (Act  of  1837,  s.  13) ;  and  such  order  is  the  authority  to  the  sherilf  clerk 
to  issue  the  decree. 

Where  the  Sheriff  finds  it  expedient  to  make  avizandum  with  the  cause, 
with  a  view  to  subsequently  giving  final  judgment  thereon,  he  may 
pronounce  decree  on  any  day  that  he  thinks  fit,  without  requiring  parties  to 
attend,  but  the  day  nmst  not  be  later  Llian  seven  days  from  the  liearing  of 
the  cause  (see  Paterson,  1895,  22  E.  (J.  C.)  45;  Act  of  1889,  s.  10);  or, 
where  it  is  inconvenient  for  him  to  pronounce  decree  personally,  he  may 
communicate  it  to  any  other  Sherilf  of  tlie  sherifCdom,  who  may  pronounce 
it  for  liim  {ih.). 

The  Sherilf  may,  if  lie  tliiidc  proper,  direct  the  sums  found  due  to  bo 
paid  by  instalment.'*,  weekly  monthly  or  quarterly,  according  to  the  cir- 
cumstances of  the  party  found  liable,  and  under  such  conditions  as  he 
may  think  fit  (Act  of  1837,  s.  18),  Wlicrc  the  debt  sued  for  is  such  that 
decision  may  be  pronounced  for  instalments  to  bccnmo  due,  they  may  be 
awarded  for  any  period  not  exceeding  twelve  months  (Act  of  1889,  s.  9). 

The  scale  of  expenses  is  regulated  l>y  the  Act  of  1837,  s.  32.  The 
expenses  may  include  personal  charges  if  the  Sherilf  think  fit  (?'&.,  s.  13); 


356  SMALL  DEBT  COUKT  (SHERIFF) 

and  also,  if  he  think  fit,  the  Sheriff  may  decern  for  expenses  in  favour  of  an 
agent  to  the  extent  of  his  interest  therein  (Act  of  1889,  s.  12). 

Rcponing  against  Decree  in  Absence. — Where  a  decree  has  heen  pronounced 
in  absence  of  a  defender  {i.e.  where,  having  been  duly  cited,  he  has  failed 
to  appear  either  personally  or  properly  represented — Act  of  1837,  s.  15),  he 
may  consign  the  amount  of  expenses  decerned  for,  and  a  sum  of  ten 
shillings  to  meet  further  expenses,  and  thereupon  obtain  from  the  sheriff 
clerk  a  warrant  sisting  execution  till  next  Court  day.  This  warrant 
contains  authority  for  citing  the  other  party  and  witnesses  and  havers, 
is  served  on  the  other  party  in  like  manner  as  the  summons  is  served  on 
the  defender,  and,  this  having  been  done,  is  authority  for  the  case  being 
heard ;  and  the  Sheriff  has  no  option  but  to  rehear  it  (per  Ld.  Trayner, 
Oliver,  1898,  36  S.  L.  R.  62).  This  warrant  can  be  issued  at  any  time  if  no 
charge  has  followed  on  the  decree ;  but  in  the  event  of  a  charge  having 
been  given,  then  only  if  no  implement  of  the  decree  has  followed  thereon 
(see  Deckee  in  Absence  ;  Eeponing),  and  provided  no  greater  period  than 
three  months  has  elapsed  from  the  date  of  the  charge.  The  expenses  which 
have  been  awarded  and  consigned  are  always  paid  over  to  the  other  party 
unless  the  Court  specially  orders  otherwise  (Act  of  1837,  s.  16). 

Where  a  defender  has  appeared  at  the  first  calling,  but  failed  to  appear 
at  an  adjourned  diet,  and  decree  has  been  taken,  there  is  a  conflict  of 
opinion  as  to  whether  the  decree  should  be  held  to  be  one  in  absence  or  by 
default.  Ld.  Inglis  and  Ld.  Deas  thought  it  a  difficult  and  open  ques- 
tion {Roivan,  1863, 4  Irvine  J.  C.  377).  Ld.  Mure  ( Worral,  1885, 13  R.  (J.  C.) 
4)  and  Ld.  Wellwood  (3fNeil,  1891,  28  S.  L.  R  599)  have  held  that  it  is  a 
decree  by  default,  and  therefore  final;  while  Ld.  Trayner  and  Ld.  Kyllachy 
have  given  opinions  that  it  is  a  decree  in  absence,  and  that  rehearing  as 
above  is  therefore  competent  {Montgomery,  1891,  18  E.  (J.  C).  25).  The 
determining  consideration  appears  to  be  whether  or  not  there  has  been  litis 
contestation  ;  if  there  has,  it  is  a  decree  by  default ;  and  if  not,  a  decree  in 
absence  {Oliver,  1898,  36  S.  L.  E.  62). 

There  is  also  a  difference  of  opinion  as  to  the  competency  of  reponing 
more  than  once.  In  some  sheriffdoms  it  is  allowed  a  second  time,  in  the 
discretion  of  the  Sheriff",  on  strong  cause  shown ;  in  Lanarkshire  it  has  been 
held  incompetent  {Harris,  1877,  Guthrie's  Select  Cases,  419). 

Behearing  after  Absolvitor  in  Absence. — Absolvitor  in  absence  is  granted 
where  the  pursuer  fails  to  appear,  either  personally  or  properly  represented 
(Act  of  1837,  s.  15).  It  is  competent,  however,  for  the  pursuer,  at  any 
time  within  one  month  thereafter,  to  consign  the  sum  of  expenses  awarded 
in  the  decree  of  absolvitor,  and  a  further  sum  of  five  shillings  to  meet 
further  expenses,  with  the  sheriff  clerk,  and  obtain  from  him  a  warrant  to 
cite  the  defender  and  witnesses  for  both  parties,  and  this  warrant  is 
authority  for  having  the  case  reheard.  Unless  ordered  otherwise  by  the 
Court,  the  expenses  of  the  decree  of  absolvitor  are  paid  over  to  the  other 
party  (Act  of  1837,  s.  16).  As  to  whether  absolvitor  in  absence  at  an 
adjourned  diet  is  properly  a  decree  in  absence  or  by  default,  see  supra, 
Reponing  against  Decree  in  Absence. 

Extract  of  Decree — The  decree,  stating  the  amount  of  expenses  found  due, 
and  containing  a  warrant  for  arrestment  and  for  poinding  and  imprisonment 
when  competent,  is  written  or  printed  on  the  summons,  conform  to  Sched. 
(A),  No.  7,  of  the  Act  of  1837.  This  decree  and  warrant,  being  signed 
by  the  sheriff  clerk,  is  sufficient  authority  for  instant  arrestment,  and  also 
for  poinding  and  sale  and  imprisonment,  where  competent,  either  after  the 
elapse  of  ten  free  days  from  the  date  of  the  decree,  if  the  party  against 


SMALL  DEBT  COUET  (SHERIFF)  357 

whom  it  lifis  been  given  was  personally  present  when  it  was  pronounced  (see 
Shicll,  1871, 10  M.  58),  or,  if  he  was  absent,  or  present  only  by  representative, 
after  a  charge  of  ten  free  days  (Act  of  1837,  s.  Vi). 

The  power  to  open  lockfast  places  is  implied  in  the  decree  (Act 
of  1889,  s.  7). 

Any  party  to  a  cause  or  any  claimant  in  a  multiplepoinding,  or  the 
a^ent  of  anv  such  ])irty  or  claimant,  may,  on  payment  of  a  fee  of  one 
shilliuo",  obtain  from  the  sheriff  clerk  an  extract  of  the  decree  Tu-onounced 
in  the  cause,  to  the  extent  of  his  interest  therein  (Act  of  1889,  s.  12). 

Execution. — No  witness  is  necessary  to  a  charge  on  a  decree  (Act  of  1889, 
s.  11).  A  charge  is  always  necessary,  even  if  not  so  originally,  wliere  a  year 
has  elapsed  from  the  date  of  the  decree  without  its  being  enfurced  ;  and 
where  a  charge  is  originally  necessaiy,  and  a  year  has  elapsed  from  the  date 
of  the  charge,  the  decree  cannot  be  enforced  without  a  new  charge  (Act  of 

1837,  s.  13). 

Where  any  person  has  acquired  riglit  to  an  extract  of  a  decree  by 
assignation  or  otherwise,  he  may  present  it  to  the  sheriff  clerk,  indorsed 
with   a   minute   in   terms   of   Sched.    9    of   the   Personal   Diligence   Act, 

1838,  and   obtain   authority   to   execute   it   (Act   of    1889,  s.   5 ;    1    &    2 
Vict.  c.  lU,  s.  12). 

All  charges  on  decrees  when  executed  by  a  sheriff-oificer  may  be 
executed,  without  the  necessity  of  any  imlorsation  or  warrant  of  concurrence, 
by  any  officer  of  any  county  (Act  of  1889,  s.  11,  repealing  Act  of  1837,  s.  19). 

The  Inferior  Courts  Judgments  Extension  Act,  1882,  provides  for  the 
enforcing  of  small  debt  decrees  outwith  Scotland  (-15  &  46  Vict.  c.  31). 

Arrestment  in  execution  proceeds  as  in  the  case  of  an  ordinary  decree, 
and  the  same  things  may  be  arrested.  Arrestments  in  the  execution,  hke 
arrestments  on  the  dependence,  cease  and  determine  on  the  expiry  of  three 
months  from  their  date  (Act  1837,  s.  6 ;  ib.,  Sched.  (A)  7). 

Foinding  and  Sale. — Poinding  and  sale  is  carried  out  by  the  officer  in 
a  summary  way.  He  gets  the  effects  poinded  duly  appraised  (on  oath,  Le 
Conte,  1880,  8  R.  175)  by  two  persons,  who  may  also  be  witnesses  to  the 
poinding.  An  inventory  of  the  effects  poinded  is  given  to  the  owner 
thereof.'and  the  sale  is  carried  out  not  sooner  than  forty -eight  hours 
thereafter,  either  by  removing  the  effects  to  the  nearest  town  or  village, 
or  if  the  poinding  takes  place  in  a  town  or  village,  then  at  the  most  public 
part  thereof.  The  sale  must  take  ])lace  between  eleven  o'clock  forenoon 
and  three  o'clock  afternoon,  and  previous  notice  of  at  least  two  hours  must 
have  been  given  by  the  crier.  The  Sheriff  may,  either  by  general  regula- 
tion or  by  special  order,  if  he  think  fit,  ai)i)oint  a  ditfi-rent  hour  or  place 
for  the  sale,  or  a  longer  or  different  kind  of  notice  to  be  given  of  the  lime 
of  selling.  Any  surplus  of  the  i»rice  obtained  which  may  be  over  after 
satisfying  the  amount  and  exi)enscs  decerned  for  and  the  ex|)enscs  of  the 
poinding  is  returned  to  the  owner  of  the  effects  sold,  or  if  the  owiur 
cannot  be  found,  is  consigned  with  the  sheriff  clerk.  If  the  effects  should 
not  be  sold,  tiiey  are  delivered  over  to  the  creditor  at  their  a]»praised  value 
to  the  extent  of  satisfying  the  sum  and  expenses  decerned  f^or,  and  the 
expenses  of  the  poinding.  In  every  case,  either  of  sale  or  uf  deliverv,  a 
report  of  the  i)rf)(;ecdings  must  be  made  to  the  sheriff  clerk  within  eight 
davs  thereafter  (Act  of  1837,  h.  20). 

'if  any  ])ersou  secretes,  or  carries  off,  or  intromits  wiih  any  jioindcil 
effects  in  frandcni  of  the  ])oinding  creditor,  he  is  liable  to  suinmary 
punishment  by  fine  or  iniprisoiimcnl,  as  fur  contempt  of  Court,  either  at 
the  instance  of  the  private  party,  with  or  without  the  concurrence  of  the 


o 


58  SMALL  DEBT  COUIIT  (SIIEEIFr) 


fiscal,  or   at  the   fiscal's  instance,   or   ex  proprio   motu  of  the  Sheriff,  in 
addition  to  the  ordinary  civil  liability  (ih.). 

Imprisonment.  —  The  decree  and  warrant,  being  signed  by  the  sheriff 
clerk,  is  sufficient  authority  for  imprisonment  wliere  competent  (Act  of 
1837,  s.  13).  It  is  therefore  unnecessary  to  go  to  the  Sheriff  for  any 
further  warrant.  It  is  necessary,  however,  before  the  decree  and  warrant 
can  be  followed  by  imprisonment,  that  ten  free  days  shall  have  elapsed 
from  the  date  of  the  decree  if  the  party  against  whom  it  was  given  was 
personally  present  when  it  was  pronounced,  or  if  he  was  not  so  present, 
that  there  should  have  been  a  charge  of  ten  free  days  {ib.). 

2.  MuLTiPLEPOiNDiNG. — A  sumnions  of  multiplepoinding  may  be  raised 
in  the  Small  Debt  Court  in  a  case  where  a  person  holds  a  fund  or  subject 
which  does  not  exceed  the  value  of  £12,  and  which  is  claimed  by  mora 
than  one  person  (Act  of  1837,  s.  10).  The  summons  is  raised  in  the  Court 
to  the  jurisdiction  of  which  the  holder  of  the  fund  in  medio  (which  is 
practically  always  a  sum  of  money)  is  amenable,  and  is  in  the  form  of 
Sched.  E  annexed  to  the  Act  of  1837.  The  parties  other  than  the  raiser, 
■who  may  be  the  holder  of  the  fund  or  one  of  the  claimants,  are  cited  in 
the  manner  directed  to  be  followed  in  actions  of  forthcoming  under  the 
Act  of  1837  (see  infrci).  If  the  Sheriff  thinks  that  this  has  not  secured 
sufficient  intimation  of  the  action,  he  may  order  such  further  intimation  or 
publication  as  he  may  think  proper,  by  advertisement  in  any  newspaper 
or  otherwise.  In  order  that  all  parties  may  have  an  opportunity  of  lodging 
their  claims,  no  judgment  preferring  any  party  to  the  fund  in  medio  can 
be  pronounced  at  the  first  calling  of  the  case.  The  claims  wdien  lodged 
must  be  in  the  form  provided  by  Sched.  E  of  the  Act  of  1837,  and  the 
case  is  thereafter  tried  and  determined  like  any  ordinary  action  in  the 
Small  Debt  Court  (Act  of  1837,  s.  10). 

3.  EoRTiicoMiNG. — The  action  of  forthcoming  is  competent  in  the 
Small  Debt  Court  where  the  sum  sought  to  be  recovered  under  the  forth- 
coming does  not  exceed  £12.  The  arrestee  and  the  common  debtor  are 
summoned  according  to  the  form  in  Sched.  D  of  the  Act  of  1837  to  appear 
at  the  Court  of  the  county  in  which  the  arrestee  resides,  not  sooner  than 
six  days  after  citation.  Double  this  time  must,  however,  be  allowed  in 
the  event  of  the  common  debtor  (in  the  case  of  a  multiplepoinding,  supra, 
it  will  be  a  claimant  or  claimants)  not  being  resident  within  the  county  in 
which  the  action  is  brought.  The  arrestee  and  the  common  debtor  must 
be  cited  for  the  same  Court  day.  By  bringing  the  action  in  the  Small 
Debt  Court,  the  pursuer  is  not  held  to  have  restricted  the  debt  due  by 
the  common  debtor  to  the  amount  sued  for  in  the  action  (Act  of  1837, 
s.  9).  Where  a  sale  of  goods  or  effects  arrested  is  ordered  by  the  Sheriff, 
the  course  of  proceeding  to  be  followed  is  the  same  as  in  the  case  of 
poinding  and  sale  (supra,  Act  of  1837,  s.  20).  In  other  respects,  the  action 
is  simply  an  ordinary  action  of  Forthcoming  (q.v.),  heard  and  determined  in 
the  summary  manner  provided  for  actions  in  the  Small  Debt  Court. 

4.  Sequestration. — Sequestration  for  recovery  of  rent  is  competent  in 
the  Small  Debt  Court  provided  the  rent  or  the  balance  of  rent  sued  for 
does  not  exceed  £12,  and  may  be  for  rent  past  due,  or  in  security  (Act  of 
1837,  s.  5  ;  16  &  17  Vict.  c.  80,  s.  28).  The  form  of  summons  and  warrant 
of  sequestration  is  given  in  the  Act  of  1837,  Sched.  B.  The  officer,  when  he 
executes  the  warrant,  gets  the  effects  appraised  by  two  persons,  who  may 
also  be  witnesses  to  the  sequestration,  and  an  inventory  of  the  effects 
appraised  must  be  left  with  the  tenant,  with  the  citation.  The  summons 
contains  a  warrant  to  secure  the  effects,  if  need  be,  till  the  further  orders  of 


SMALL  DEBT  COUET  (SHEEIFF)  359 

the  Court.  Should  the  tenant  improperly  remove  any  of  the  effects,  warrant 
may  be  granted  to  carry  them  back.  A  minute— which  must  state  cir- 
cumstances sufficient  to  show  improper  removal  (JoIuisfo7i,  1890,  18  11. 
(J.  C.)  6)— cravhig-  such  warrant  must  be  put  on  the  summons  (Sellars' 
Forms,  vol.  i.  p.  355).  An  execution  of  the  citation  and  sequestration,  with 
the  appraisement  of  the  effects,  must  be  returned  to  the  sheriff  clerk  williin 
three  days.  On  hearing  the  application,  the  Sheriff  may  either  recall  the 
sequestration  in  whole  or  in  part  if  improper,  or,  if  the  action  is  one  for 
rent  past  due,  give  decree  for  the  rent  found  due,  and  grant  warrant  for  the 
sale  of  the  effects.  If  the  sequestration  is  in  security,  it  is  usual  to  continue 
the  case  till  after  the  date  at  which  payment  of  the  rent  is  due,  to  give  an 
opportunity  of  payment.  The  sale  is  carried  out  in  like  manner  as  in  the 
case  of  poinded  effects  (Act  of  1837,  s.  20).  All  sequestrations  must  be- 
registered  (30  &  31  Vict.  c.  42,  s.  7). 

If  after  sequestration  the  tenant  pays  the  rent  claimed  and  the  expenses, 
or  consigns  the  rent  Mith  £2  to  cover  expenses,  in  the  hands  of  the  sheriff 
clerk,  the  sequestration  is  ipso  facto  recalled.  In  the  one  case  the  clerk 
writes  "  payment  made "  on  the  back  of  the  warrant.  In  the  other  he 
writes  the  words  "  consignation  made,"  and  the  fact  is  intimated  to  the 
sequestrating  creditor  by  an  officer  of  Court.  In  both  cases  the  sheriff 
clerk  must  sign  the  writing  (Act  of  1837,  s.  5). 

5.  Ejections. — Where  a  decree  for  rent  has  been  obtained  in  the  Small 
Debt  Court,  and  a  sale  under  the  decree  of  the  tenant's  effects  ordered  (it 
matters  not  whether  the  sale  be  carried  out  or  not),  and  the  oiHcer  charged 
with  executing,  or  who  executed,  the  sale  reports  to  the  Sheriff  that  the 
premises  for  which  the  rent  is  owing  have  been  displenished,  the  landlord 
may  obtain  a  warrant  to  eject  the  tenant  and  relet  the  premises.  Notice 
of  the  diet  at  which  the  application  for  the  warrant  to  eject  is  to  be  heard 
must  be  given  to  the  tenant  at  least  forty-eight  hours  beforehand,  and  may 
be  given  by  registered  letter  addressed  to  the  tenant's  last  known  address.. 
After  hearing  the  application,  the  Sheriff  may  pronounce  any  order  as  to 
ejection,  reletting,  expenses,  security  or  otherwise  that  he  may  think  just. 
AViiere  warrant  to  relet  is  granted,  the  rent  accruing  thereafter  is  not 
exigible  from  the  tenant  except  for  such  period  as  he  may  continue  to 
occupy  the  premises  (Act  of  1889,  s.  6). 

0.     PllOCEKDING.S     UNDER     EMPLOYERS     AND     WoRKMKN     ACT,      1875. — 

(a)  Workmen. — The  powers  given  to  the  Sheriff  in  his  ordinary  Court  by 
this  Act  may  be  exercised  in  tlie  Small  Debt  Court,  provided  that  in  any  dis- 
pute no  jurisdiction  is  exercised  where  the  amount  claimed  exceeds  XIO. 
No  order  can  be  made  for  the  payment  of  any  sum  exceeding  £10,  nor 
can  security  to  any  greater  amount  be  required  from  any  defenchmt  or  his 
sureties  (38  &  39  Vict.  c.  90,  s.  4).  The  proceedings,  except  tliat  no  notice 
is  required  of  any  set  off  or  couiiter  claim,  are  the  same  as  in  an  ordinary 
action  in  tlie  Small  Debt  Court  (A.  S.,  29th  January  1 870),  and  all  decree?  and 
orders  under  the  Act  may  be  enforced  in  the  same  way  and  under  the  same 
conditions  as  any  other  (Iccrce  or  order  in  the  Small  Debt  Court  (38  &;  39 
Vict.  c.  90,  s.  14).     The  Sherifra  decision  is  final  (Wihon,  1878,  5  K.  981). 

(h)  Apprentices. — TIhj  application  of  tlie  Act  is  limited  to  ajiprenlices 
to  the  business  of  a  workman,  as  defined  by  the  Act  (s.  10),  upon  wliose 
binding  either  no  premium  is  jiaid,  or  if,  wliere  there  is  a  premium,  it  does 
not  exceed  £25 ;  and  to  apprentices  bound  luidcr  tlie  provisions  of  the  Acts 
relating  to  the  relief  of  the  poor  (38  &  39  Vict.  c.  90,  s.  12) ;  but  it  docs  not 
include  a])prcntices  to  sea  service  {ih.,  s.  l.">). 

lu  disputes  between  masters  and  apprentices,  the  Court  has  the  same 


360  SMALL  DEBT  COUET  (SHERIFF) 

powers  as  if  the  dispute  were  between  an  employer  and  a  workman  with 
the  indentures  defining  the  contract  between  them.  The  Court  may  further 
make  orders  directing  apprentices  to  perform  their  duties  under  their 
apprenticeships;  or  it  may  rescind  the  indentures  and  order  the  whole  or 
any  part  of  the  premium  to  be  repaid.  If,  after  the  expiration  of  a  month 
from  the  date  of  an  order  directing  an  apprentice  to  perform  his  duties,  the 
Court  is  satisfied  that  he  has  failed  to  comply,  it  may  from  time  to  time 
order  him  to  be  imprisoned  for  a  period  not  exceeding  fourteen  days  (ib.,  s.  6). 

7.  Cautioners  of  apprentices  may  be  summoned  as  if  they  were 
defenders,  and  ordered  to  pay  damages  to  an  amount  not  exceeding  the 
limit  (if  any)  to  which  they  are  liable  under  the  indentures  (ib.,  s.  7).  The 
Sheriff'  may  also  accept  security  from  any  friend  of  the  apprentice  instead 
of,  or  in  mitigation  of,  punishment  (ib.). 

Any  sum  of  money  for  which  an  order  is  made  may  be  directed  to  be 
paid  by  instalments,  and  the  Court  may  from  time  to  time  rescind  or  vary 
such  order  (ib.,  s.  9).  If  an  apprentice  duly  cited  fails  to  appear,  there  is 
power  to  issue  a  warrant  for  his  apprehension  (ib.,  ss.  9,  14). 

Forms  of  proceedings  under  this  Act  are  provided  by  A.  S.,  29th  January 
1876,  but  it  is  to  be  noted  that  imprisonment  for  failure  to  implement  an 
order  to  pay  is  not  now  competent  (43  &  44  Vict.  c.  34,  s.  4). 

See  Mastek  and  Servant  ;  Apprentice  ;  Dove  Wilson's  Practice, 
pp.  408-410. 

V.  Appeal. 

Except  in  so  far  as  authorised  by  the  Act  of  1837,  no  decree  is  subject 
to  any  kind  of  review,  either  on  account  of  any  omission  or  irregularity 
or  informality  in  the  citation  or  proceedings,  or  of  any  mistake  on  the  merits 
or  in  law,  or  on  any  ground  or  reason  whatever  (Act  of  1837,  s.  30 ;  Scott, 
1885,  23  S.  L.  E.  273;  Wilson,  1890,  18  E.  233).  Exclusion  of  review  in 
small  debt  cases  implies  that  the  case  cannot  be  taken  to  the  Court  of 
Session  in  the  guise  of  an  action  of  damages  (Cromhie,  1871,  23  D.  333; 
Gray,  1892,  19  E.  092).  But  where  a  special  form  of  review  is  provided  by 
a  special  Act  (e.g.  Friendly  Societies),  it  is  not  excluded  merely  because  the 
proceedings  are  in  the  Small  Debt  Court  (Linton,  1895,  23  E.  51). 

Appeal  is  competent  only  when  founded  on  the  ground  of  corruption  or 
malice  and  oppression  on  the  part  of  the  Sheriff  (see  Reid,  1894,  22  E. 
(J.  C.)  12;  Johnston,  1890,  18  E.  (J.  C.)  6;  Gordon,  1891,  18  E.  (J.  C.)  18; 
Macgillivray,  3  S.  L.  T,  525),  or  on  such  deviations  in  point  of  form  from  the 
statutory  enactments  as  the  Court  may  consider  to  have  taken  place  wilfully, 
or  to  have  prevented  substantial  justice  from  having  been  done  (see  Faterson, 
1895,  22  E.  (J.  C.)  47) ;  or  on  incompetency,  including  defect  of  jurisdiction 
(see  Allison,  1882,  10  E.  (J.  C.)  12  ;  Findlay,  1886, 13  E.  (J.  C.)  53  ;  Russell, 
1892,  19  E.  (J.  C.)  61 ;  Act  of  1837,  s.  31). 

The  appeal  is  either  to  the  Circuit  Court,  or,  if  the  case  is  from  a  district 
where  there  are  no  Circuit  Courts,  to  the  Court  of  Justiciary  (ib.,  s.  31).  A 
note  of  appeal  in  writing  is  lodged  in  the  hands  of  the  Clerk  of  Court,  either 
in  open  Court  when  the  decree  is  pronounced,  or  at  any  time  within  ten  days 
thereafter;  and  at  the  same  time  a  duplicate  of  it  must  be  served  on  the 
adverse  party  personally,  or  at  his  dwelling-house,  or  on  his  agent.  This 
is  sufficient  summons  to  the  respondent  to  oblige  him  to  appear  at  the  next 
Circuit  or  High  Court  happening  not  less  than  fifteen  days  after  such  service 
(t&.,s.  31 ;  20  Geo.  ii.  c.  43,  s.  34).  Along  with  the  note  of  appeal  the  corn- 
plainer  must  lodge  with  the  Clerk  of  the  Court  a  bond,  with  a  sufficient 
cautioner,  for  answering   and  abiding   by  the  judgment  of   the  Court  of 


SMALL  DEBT  COUET  (SHELaFF)  361 

review,  and  for  paying  any  costs  which  that  Court  may  award  against  him. 
For  the  sutRcieucy  of  this  cautioner  the  Clerk  is  answerable  (20  Geo.  n.  c.  43, 
s.  35).  Fuither,  there  can  be  no  sist  or  stay  of  execution  except  upon  con- 
signation of  the  whole  sum  and  expenses  decerned  for  (Act  of  1837,  s.  31). 
An  appeal  in  the  Court  of  Justiciary  may  be  sent  by  it  to  be  determined 
by  the  Court  of  Session  {Burrcll,  1868,  i  Coup.  103).  From  the  Circuit 
Court  it  may  be  transferred  either  to  the  Court  of  Justiciary  or  to  the 
Court  of  Session  (20  Geo.  ii.  c.  33,  s.  47) ;  from  either  Circuit  or  High  Court 
it  may  be  remitted  back  to  the  Sheriff,  with  instructions  how  furtlicr  to 
proceed  {Russell,  1892,  19  E.  (J.  C.)  61;  Maxwell,  1886,24  S.  L.  E.  12; 
Spence,  1885,  12  E.  (J.  C.)  43  ;  Ghss,  1876,  4  E.  108  ;  Act  of  1837,  s.  31). 

At  the  hearing  of  the  appeal  no  document  can  be  founded  on  which 
was  not  produced  before,  and  initialled  by  the  Sheriff,  when  the  case  was 
before  him  ;  nor  can  the  evidence  of  any  witness  be  referred  to  who  was  not 
examined  before  the  Sheriff,  and  whose  name  was  not  written  by  him  on 
the  summons  when  the  case  was  heard  (Act  of  1837,  s.  31). 

Except  on  remit  from  the  Circuit  or  High  Court,  the  Court  of  Session, 
as  a  general  rule,  has  no  jurisdiction  in  small  debt  cases  (Zcnnon,  1879, 
6  E.  1253;  Miller,  1850,  12  D.  656;  Graham,  1848,  6  Bell's  A.  C.  214; 
Lou-dens  Trs.,  1846,  9  D.  281);  unless  the  proceedings  have  been  null  and 
illegal  from  the  beginning  {Manson,  1871,  9  M.  492).  But  where  the  ground 
of  complaint  is  not  the  decree  itself,  but  some  irregularity  or  illegality 
following  on  it,  the  jurisdiction  of  the  Court  of  Session  has  been  admitted 
{Gray,  1892,  19  E.  696;  Lc  Conte,  1880,  8  E.  175;  Shiell,  1871,  10  M. 
58;  Murchie,  1863,  1  ^L  800;  Srott,  1846,  5  Bell's  A.  C.  126;  but  see 
JVilso7i,  1890,  18  E.  233  (Ld.  Eresident)). 

See  Dove  Wilson's  Practice,  pp.  500-526,  581-591;  Lees,  Sinall  Dclt 
Handbook  and  Small  Debt  Amendment  Act ;  Bell's  Dictionary. 

SMALL  DEBT  COUET  (JUSTICE  OF  THE  PEACE). 

The  Justice  of  the  Eeace  Small  Debt  Court  is  regulated  by  the  Act  of 
1825,  6  Geo.  iv.  c.  48,  as  amendeil  by  12  &  13  A'ict.  c.  34.  The  proceedings 
are  summary  and  similar  to  those  of  the  Sherill"  Small  Debt  Court,  and 
only  the  more  material  points  in  jurisdiction  or  ])rocedure,  where  the 
Justice  of  the  Peace  Court  difft-rs,  are  noticed  here.  The  Court  consists  of 
any  two  or  more  Justices  of  the  Peace  in  any  county  (Act  of  1825,  s.  2). 
Where  oidy  one  justice  is  available,  he  may  Imld  a  Court  for  the  purpose  of 
hearing  the  roll  called  and  pronouncing  decrees  in  aV)sence  {ih.,  s.  16). 

Unlike  the  Sheriff,  the  Justices  of  the  Peace  sitting  in  the  Small  Debt 
Court  are  a  ])urely  statutory  body,  and  have  and  can  exercise  no  other 
jurisdiction  tlian  that  expressly  conferred  on  them  by  the  statuti'.  The 
I)ecuniary  limit  of  their  jurisdiction  is  £5,  and,  ]irovi(h'd  that  the  debt  or 
<lemand  floes  not  exceed  that  value,  they  are  diiected  to  heai-,  try,  and 
<letermine,  as  shall  a])pear  to  them  a'jreeaMi'  to  cfjuity  and  good  conscience, 
all  causes  atid  comjilaints  brought  before  them  concerning  the  recovery  of 
debts,  or  the  making  ellectnal  of  any  demand.  The  jurisdiction  does  not 
extend,  however,  to  ca.ses  where  rpiestions  of  heritable  ri-^ht  am!  title  are 
involved,  or  to  cases  coneerning  the  validity  of  any  will  or  contract  of 
marriage.  These  are  incompetent  in  the  .Justice  of  the  Peace  Court  (//'.,s.  21 ; 
Act  of  1825,  8.  2). 

There  is  no  provision,  as  in  the  Sheriff  Small  Debt  Court,  that  a  ])ursuer 
shall  lie  lieM  to  have  ]»assefl  from  and  abamloned  any  remaining  portion  of 
any  deljt  beyond  the  sum  actually  concluded  for. 


362  SMOKE 

Parties  are  proliibited  from  being  represented  by  agents  (ih.,  s.  5).  The 
justices  may,  however,  allow  a  pursuer  or  defender  to  be  heard  by  one  of 
his  family. "  Or,  if  the  pursuer  is  not  resident  nearer  than  twenty  miles 
from  the  place  where  the  Court  is  held,  he  may,  if  the  justices  think  fit,  be 
represented  by  a  mandatary  with  written  authority.  The  mandatary  must 
not,  however,  be  a  person  practising  the  law  (Act  of  1825,  s.  7). 

If  a  decree  has  been  pronounced  in  absence  of  the  defender,  he  may 
obtain  a  warrant  sisting  execution  to  next  Court  day,  and  thereafter  obtain 
a  rehearing,  upon  consigning  the  sum  decerned  for  at  any  time  before  the 
days  of  the  charge  elapse  (Act  of  1825,  s.  8).  There  cannot,  therefore,  be  a 
sist  and  rehearing  where  the  charge  has  expired,  or  where  the  defender  was 
present  or  properly  represented,  or  where  he  does  not  consign  the  sum 
decerned  for. 

Contrary  to  the  rule  in  the  Sheriff  Small  Debt  Court,  a  defender  must 
pay  a  fee  on  his  first  appearance  (6  Geo.  iv.  c.  48,  s.  17),  and  each  party 
must  pay  a  fee  for  each  witness  he  examines  (ih.). 

There  is  no  provision  in  the  Justice  of  the  Peace  Court  for  lodging 
counter  claims  by  way  of  set  off.  Such  claims  must  be  stated  in  inde- 
pendent actions. 

There  is  no  power  to  issue  warrants  for  arrestment  on  the  dependence, 
and  actions  of  sequestration  for  rent,  or  of  multiplepoinding,  or  of  furth- 
coming are  incompetent. 

Sale  may  follow  immediately  on  poinding  without  the  necessity  of  prior 
intimation  thereof  to  the  debtor  (Act  of  1825,  s.  12). 

No  provision  is  made  for  awarding  expenses  to  a  defender. 

Pinally,  no  review  of  the  decisions  of  the  justices  is  competent  exceptby 
an  action  of  reduction  in  the  Court  of  Session,  which  action  of  reduction 
can  be  founded  only  on  the  ground  of  malice  and  oppression  on  the  part 
of  the  justices,  and  must  be  brought  within  one  year  from  the  date  of  the 
justices'  decree  (ih.,  s.  14).  Further,  the  pursuer  in  the  action  of  reduction 
must  find  sufficient  caution  in  the  hands  of  the  Clerk  of  Court  for  payment 
of  such  expenses  as  may  be  awarded  against  him  (ih.,  s.  15). 

See  Lees'  Small  DcU  Haiidhooh;  Bell's  Didionary  \  Barclay  and 
Chisholm's  Justice's  Digest, 

Smoke. — See  Nuisance;  and 

Smoke  Nuisance  Abatement  (Scotland)  Acts^ 
1857,  I86I  ,  and  1865  (20  &  21  Vict.  c.  73;  24  Vict.  c.  17;  28 
&  29  Vict.  c.  102).— These  Acts  make  provision  for  the  abatement  of 
nuisance  arising  from  the  smoke  of  furnaces  in  burghs.  They  apply  tO' 
every  burgh  and  town  in  Scotland  having  a  population  of  not  less  thaa 
2000. 

Under  sees.  1  and  2  of  the  Act  of  1857,  "every  furnace  employed  or  to 
be  employed  in  the  working  of  engines  by  steam,  whether  locomotive  or 
otherwise,"  in  any  place  to  which  the  Acts  apply,  or  "  on  board  of  any  steam 
vessel  stopping  at  or  in  any  such  place,  or  in  or  at  any  port,  pier,  landing- 
place,  or  harbour  within  the  same,  or  when  plying  on  any  part  of  a  river 
which  at  such  part  shall  not  exceed  a  quarter  of  a  mile  in  breadth,  and 
every  furnace  employed  or  to  be  employed  in  any  mill,  factory,  distillery, 
brewhouse,  sugar-reiinery,  bakehouse,  gasworks,  waterworks,  (although  a 
steam-engine  be  not  employed  therein),  or  in  any  public  bath  or  washhouse 
within  the  same,  although  such  public  bath  or  washhouse  shall  not  be  used 
for  the  purposes  of  trade  or  manufacture,"  must  in  all  cases  be  constructed 


SMUGGLING  3G3 

or  altered  so  as  to  consume  or  burn  "  as  far  as  possible  "  the  smoke  arising 
from  such  furnace. 

A  chemical  work  has  been  held  to  be  a  factory  Nvithin  the  meaning  of 
these  sections  (Ward  &  Co.,  1863,  1  M.  724).  Where  ]Di^i"t  of  a  river  is 
more  than  a  quarter  of  a  mile  broad,  although  within  the  limits  of  a 
burgh  to  which  the  Act  applies,  a  smoke  nuisance  under  this  Act  cannot 
be  committed  on  board  a  vessel  sailing  thereon  {Campbell,  1882,  10 
E.  (J.  C.)  28).  "  As  far  as  possible  "  means  as  far  as  possible  consistently 
with  carrying  on  in  an  ordinary  manner  the  trade  in  which  the  furnace 
is  employed,  and  with  a  careful  use  and  management  of  a  properly  con- 
structed furnace  {Cooper,  1867,  L.  11.  2  Ex.  88). 

Offenders. — Under  sec.  1  of  the  Act  of  1857,  every  person  or  company 
being  (1)  the  owner  or  occupier  of  the  premises,  or  (2)  the  owner  of  the 
locomotive  engine  in  which  such  fiu'nace  is,  or  (3)  the  foreman  or  other 
person  employed  by  such  owner  or  occupier  in  connection  with  such  furnace, 
or  (4)  the  owner  or  master  or  other  person  in  charge  for  the  time  bemg 
of  any  such  steam  vessel,  who  uses  within  any  such  place,  or  on  board  of 
any  such  steam  vessel,  any  such  furnace  not  so  constructed,  or  so 
negligently  uses  any  such  furnace,  that  the  smoke  arising  therefrom  is 
not  etfectually  consumed  or  burned,  commits  an  offence  against  the  Act. 
Under  sec.  11,  any  one  of  two  or  more  joint  owners  or  occupiers  may  be 
proceeded  agamst. 

Pcn«%.— Under  sec.  1  of  the  Act  of  1857,  the  offender  is  liable  on 
conviction  to  a  penalty  not  exceeding  £5  or  less  tlian  forty  shilhngs._  On 
a  second  conviction  the  penalty  is  £10,  and  on  each  subsequent  conviction 
the  penalty  is  doubled.  Under  sec.  4,  failure  to  pay  the  penalty  within  eight 
days  may  be  followed  by  poinding  and  imprisonment  for  a  period  not 
exceeding  fourteen  days. 

Those  entitled  to  Frosecntc. — Under  sees.  3  and  14  of  the  Act  of  1857,  as 
amended  by  sec.  1  of  the  Act  of  1861,  proceedings  may  be  taken  by  the 
procurator-fiscal,  the  police  commissioners,  or  the  owner  or  occupier  of  the 
premises  with  reference  to  which  the  furnace  is  so  situate  as  to  create  an 
annoyance  to  the  occupiers  of  such  premises. 

Proceedings  under  Acts. — Under  sees.  1,  4,  and  6  of  the  Act  of  1857,  tlie 
complaint  must  be  brought  by  summary  petition  (1)  before  the  Shcrill"  or 
Sheriff-Substitute,  or  (2)  before  a  magistrate  of  the  burgh  or  two  justices- 
of  the  peace,  where  the  cost  of  the  operations  necessary  to  alter  or  amend 
the  furnace  will  not  exceed  £25.  Under  sec.  7,  where  proceedings  are  begun 
before  the  Sheriff-Substitute  and  the  cost  of  the  operations  will  exceed  £25, 
appeal  is  allowed  to  the  SlierilT,  and  in  simihir  circumstances  ajipeal  is 
allowed  from  him  to  tlic  T/.rd  OnUnary  on  the  lUlls,  whose  judgment  is 
final. 

Smuggling"  is  the  offence  of  making,  importing,  or  exporting  goods 
without  i'ayiiig  Gr.vurnmont  duties,  and  with  tlie  intention  of  defnuuhng  the 
revenue.  If  smuggled  good.s  are  sold  in  this  country,  no  action  lies  for 
recovery  of  the  i)rice,  provided  that  the  S(!ller  knew  tliat  the  goods  sold 
liad  been  smuggled.  A  foreign  seller  may  recover  the  price  of  goods  sold 
l)y  him  and  Humgule'l  into  this  country  if  he  has  not  been  accessory  to  the 
smuggling.  Offences  against  the  revenue  have  been  dealt  with  by  a  long 
scrieTof  statutes  (sec  0  Geo.  I.  c.  21  ;  8  Geo.  i.  c.  18;  19  Geo.  ii.  c.  34; 
39  &  40  Vict.  c.  3G ;  42  &  4:5  Vict.  c.  21  ;  44  &  45  Vict.  c.  12). 

The  Gustom?  Laws  Gonsolidiition  Act  of  1X76  (3.9  &  40  Vict.  c.  36)  con- 
tains various  provisions  dealing  with  smuggling  offences.     l>y  sec.  172  it  is- 


364  SMUGGLING 

provided  that  vessels  made  use  of  in  removal  of  uncustomed  or  prohibited 
goods  sliall  be  forfeited,  and  the  owners  and  masters  of  such  vessels  shall 
each  be  liable  in  a  penalty  equal  to  the  value  of  such  vessel  or  boat,  not  in 
any  case  exceeding  £500.  Goods  unsliipped  (s.  177)  without  payment  of 
duty,  and  prohibited  goods,  goods  illegally  removed  from  warehouses  without 
payment  of  duty,  prohibited  goods  shipped  or  water-borne  with  intent  to  be 
exported,  goods  subject  to  duty  concealed  on  board  ship,  and  also  goods  used 
to  conceai  them,  are  all  liable  to  forfeiture.  Any  vessel  (s.  179)  or  boat 
arriving  within  the  United  Kingdom  or  the  Channel  Isles,  or  within  three 
leagues  thereof,  having  prohibited  goods  on  board  or  attached  thereto,  is 
liable  to  forfeiture  along  with  the  contraband  goods  carried,  and  persons 
found  to  have  been  on  board  vessels  with  contraband  goods  maybe  detained 
and  taken  before  any  justice.  Ships  belonging  to  Her  Majesty's  subjects 
(s.  180)  from  which,  during  a  chase  by  a  revenue  boat,  goods  are  thrown 
overboard,  are  liable  to  forfeiture. 

Sliips  not  bringing  to  (s.  181)  when  required  to  by  a  revenue  boat,  or 
by  one  of  Her  Majesty's  ships,  are  liable  to  a  penalty  of  £20,  and  also  to 
be  fired  into.  Ships  and  persons  may  be  searched  in  port  by  officers  of 
customs,  but  any  person  before  being  searched  may  require  to  be  taken 
before  a  justice  or  superior  officer  of  customs  (ss.  182-185).  Every 
person  (s.  186)  guilty  of  illegally  importing,  unshipping,  removing  from 
quay  or  wharf,  carrying  into  or  removing  from  warehouse  without  authority, 
harbouring  or  concealing,  carrying  or  removing  contraband  goods,  or  in  any 
other  way  shall  be  guilty  of  fraudulent  evasion  of  any  duties  of  customs, 
shall,  for  each  such  offence,  forfeit  either  treble  the  value  of  the  goods, 
including  the  duty  payable  thereon,  or  £100,  at  the  election  of  the  Com- 
missioners of  Customs ;  and  the  offender  may  either  be  detained  or  pro- 
ceeded against  by  summons.  Every  person  (s.  187)  who  shall  rescue  or 
attempt  to  rescue  goods  seized  by  officers  of  customs,  or  persons  apprehended 
for  a  revenue  offence,  or  who  shall  assault,  obstruct,  or  resist  revenue 
officers  in  the  execution  of  their  duties,  shall,  for  each  such  offence,  forfeit  a 
penalty  of  £100.  Persons  (s.  188)  to  the  number  of  three  or  more  assembling 
to  run  goods  are  liable  to  a  penalty  not  exceeding  £500  and  not  less  than 
£100.  Procuring  (s.  189)  or  hiring  persons  to  run  goods  is  an  offence 
punishable  with  imprisonment  for  any  term  not  exceeding  twelve  months. 
Committing  revenue  oifences  armed  and  disguised,  or  being  armed  and 
disguised  with  contraband  goods  within  five  miles  of  the  sea  coast  or  any 
tidal  river,  entails  a  liability  to  imprisonment,  with  or  without  hard  labour, 
for  any  term  not  exceeding  three  years.  Persons  (s.  190)  signalling 
smuggling  vessels  may  be  detained  and  forfeit  £100,  or  be  kept  to  hard 
laboiir  for  one  year.  Persons  (s.  193)  shooting  at  boats  belonging  to  the 
navy  or  revenue  service  are  guilty  of  felony.  Persons  (s.  195)  cutting 
adrift  vessels  belonging  to  the  customs  shall,  for  every  such  offence,  forfeit 
the  sum  of  £10, 

As  to  the  course  of  procedure  for  recovering  penalties,  enforcing 
forfeitures,  and  punishing  offenders  under  the  Customs  Acts,  see  sees.  218- 
245  and  247-263  of  the  above-mentioned  statute. 

■  By  the  Customs  and  Inland  Revenue  Act,  1879  (42  &  43  Vict.  c.  21),  it 
is  provided  (s.  12)  that  persons  who  have  been  previously  convicted  of  any 
offence  against  the  Customs  Acts  and  who  have  been  adjudged  to  pay  a 
penalty  of  £100  or  upwards  may,  on  subsequent  conviction,  be  sentenced  to 
imprisonment,  with  or  without  hard  labour. 

By  the  Customs  and  Inland  Pevenue  Act,  1881  (44  Vict.  c.  12),  it  is 
provided  (s.  12)  that  any  officer  of  customs  or  other  person  duly  employed 


SOLATIU.M  365 

in  the  prevention  of  smuggling  may  search  any  person  on  board  any  ship 
or  boat  within  the  limits  of  any  port  in  the  United  Kingdom  or  the  Channel 
Islands,  or  any  person  who  shall  have  landed  irom  any  ship  or  boat, 
provided  such  officer  or  other  person  duly  employed  as  aforesaid  shall  have 
good  reason  to  suppose  that  such  person  is  carrying  or  has  any  uncustomed 
or  prohibited  goods  about  his  person. 

A  person  shall  be  guilty  of  an  offence — 

(1)  If  he  staves,  breaks,  or  destroys  any  goods  to  prevent  the  seizure 
thereof  by  an  officer  of  customs  or  other  persons  authorised  to  seize  the 
same. 

(2)  If  he  rescues,  or  staves,  breaks,  or  destroys,  to  prevent  the  securing 
thereof,  any  goods  seized  by  an  officer  of  customs  or  other  person  authorised 
to  seize  the  same. 

(3)  If  he  rescues  any  person  apprehended  for  any  offence  punishable 
by  fine  or  imprisonment  under  the  Customs  Acts. 

(4)  If  he  prevents  the  apprehension  of  any  such  person. 

(5)  If  he  assaults  or  obstructs  any  officer  of  customs,  or  any  officer  of 
the  army,  navy,  marines,  coastguard,  or  other  person  duly  employed  for 
the  prevention  of  smuggling,  going,  remaining,  or  returning  from  on  board 
a  ship  or  boat  within  the  limits  of  any  port  in  the  United  Kingdom  or  the 
Channel  Islands,  or  in  searching  such  a  ship  or  boat,  or  in  searching  a 
person  who  has  landed  from  any  such  ship  or  boat,  or  in  seizing  any  goods 
liable  to  forfeiture  under  the  Customs  Acts,  or  otherwise  acting  in  the 
execution  of  his  duty. 

(6)  If  he  attempts  or  endeavours  to  commit,  or  aids,  abets,  or  assists  in 
the  commission  of  any  of  the  offences  mentioned  in  this  section. 

And  a  person  so  offending  shall  for  each  such  olfence  forfeit  the  penalty 
of  not  exceeding  £100,  and  he  may  either  be  detained  or  proceeded  against 
by  information  or  summons. 

[Ersk.  iii.  3.  3 ;  Stair,  ii.  2.  9 ;  Bell's  Com.  i.  32G,  ii.  479 ;  Macd.  240 ; 
Anderson,  Crim.  Law,  43.]     See  Excise,  Defraudixg  Eevenue. 

Snipe. — In  regard  to  statutory  protection,  snijie  are  on  the  same 
footing  as  Woodcock,  and  reference  is  made  to  the  article  under  that  head. 

Socius  criminis. — See  Accessaky. 

Sodomy. — Sodomy  is  unnatural  intercourse  between  two  males.  Tlie 
passive  party,  if  consenting,  is  ecjually  guilty  with  the  assailant.  The 
offence  may  be  pro.secuted  at  common  law  or  under  the  11th  section 
of  the  Criminal  Law  Amendment  Act  of  1885  (48  &  49  Vict.  c.  G9). 
Attempt  to  commit  the  crime  is  punishalde  {Simpson  and  IknJs,  1845,  2 
Broun,  G71 ;  50  &  51  Vict.  c.  35,  s.  01). 

ranishment. — At  one  time  this  was  a  cajtital  crime.  The  punisliincnt 
now  is  ])enal  servitude  (50  &  51  Vict.  c.  35,  s.  50). 

(F(jr  forms  of  indictment,  sec  Macdonahl,  .".97.) 

[Hume,  i.  409;  Alison,  i.  500;  Macdonahl,  20-1;  Anderson,  Crim. 
Law,  93.] 

SoIatiuiTI  is  the  compensation  for  wounded  feelings  or  ]ihysic;:l 
suffering,  as  distinguiHJied  from  ]»atrimonial  loss  actual  oi-  ])rosi)ective, 
arising  out  of  certain  civil  wrongs  (Bell,  iV/n.  s.  552).  It  is  awarded  in 
tlie  following  circumstances:  (1)  'J'o  the  injured  person  himself  in  cases  of 
slander,  wrongous  use  of  civil  or  criminal  process,  seduction,  breach   of 


360  SOLATIUM 

promise,  assault,  and  bodily  injury ;  (2)  to  the  husband  of  a  woman  who 
has  been  seduced :  (3)  to  certain  near  relatives  of  a  person  who  has  died 
from  bodily  injury  due  to  the  defender's  negligence  or  misconduct. 

In  actions  for  slander  the  aggrieved  person  can  sue  for  solatium  in 
addition  to  recovering  pecuniary  losses,  or  even  where  no  such  loss  has 
been  sustained.  It  is  not  necessary  in  Scotland  for  the  defamation  to  have 
been  uttered  publicly;  words  uttered  or  writing  sent  privately  to  the 
pursuer  will  entitle  him  to  compensation  for  wounded  feelings  {Machay, 
10  E.  537 ;  Stuart,  13  E.  299).  A  corporation  and  a  class  of  persons  have 
no  individual  personal  feelings,  and  so  cannot  sue  for  solatium.  The  Court 
will  not  allow  a  large  amount  to  be  awarded  unless  special  damage  is 
proved,  but  more  than  nominal  damages  will  be  given  for  serious  slander : 
£50  for  calling  a  man  a  thief  was  considered  not  excessive  {Fletcher,  12  E. 
683).  In  slanders  on  business  men,  where  no  special  damage  was  proved, 
the  Court  has  reduced  the  damages  awarded  by  the  jury  from  £1275  to  £100 
(Johnston,  2  E.  836),  and  from  £300  to  £65  {Ritclvie,  10  E.  813).  In  both 
cases  the  Court  ofiered  the  pursuers  the  alternatives  of  modified  damages 
or  a  new  trial  (Cooper  on  Defamation,  p.  4 ;  Glegg  on  Eeijaration,  pp.  68, 

146 ;  see  Defamation).  •     ,      i      ir   w     i     i         t* 

The  abuse  of  civil  and  criminal  jjrocesses  is  closely  allied  to  slander.  _  it 
the  process  complained  of  be  criminal,  the  pursuer  must  show  malice ;  it  is 
not  always  necessary  for  him  to  aver  malice  in  order  to  get  reparation  for  a 
wrongous  use  of  civil  process,  directed  against  the  person  or  the  property. 
If  the  pursuer  has  suffered  actual  loss,  he  will  recover  substantial  damages  ; 
and  even  if  there  has  been  no  actual  loss,  he  is  entitled  to  solatium  for  the 
leo'al  wrong.  If  malice  is  proved,  the  amount  will  be  greater ;  but  a 
technical  irregularity  will  be  a  ground  for  only  nominal  damages  (Graham 
Stewart  on  Diligence,  pp.  785,  794;  Glegg,  Reparation,  pp.  162-192; 
3Icikle,  24  D.  720 ;  see  Civil  Pkocess,  Abuse  of). 

In  seduction  and  Ircach  of  promise  it  has  long  been  settled  {Hogg,  27 
May  1812,  F.  C. ;  Rose,  19  July  1816,  1  Murray,  82)  that  damages  are 
due  in  solatium  although  no  specific  pecuniary  loss  be  condescended  on,  or 
in  addition  to  clahns  for  out-of-pocket  expenses  and  "loss  of  market" 
(Ersk.  Inst.,  19th  ed.,  vol.  i.  p.  138,  note  136).  In  every  case  the  amount 
will  be  a  question  of  circumstances,  and  the  Court  will  be  slow  to  interfere 
with  the  award  of  the  jury  (Fraser,  H.  and  W.  i.  496,  505 ;  Dinning  v. 
Hamilton,  Mor.  13912).  ,        ,    ■ 

In  seduction  the  injured  husband  may  sue  the  seducer  for  solatium,  even 
though  he  has  condoned  his  wife's  offence  {Macdonald,  12  E.  1327).  For 
the  possible  converse  case  of  an  action  at  the  instance  of  the  wife  for 
seduction  of  her  husband,  or  at  the  instance  of  a  man  himself  who  has 
been  seduced,  see  Fraser,  H.  and  W.  i.  504,  and  26  American  Daw  Beview, 
p  36  For  the  elements  to  be  considered  in  assessing  damages,  see  Walton, 
//.  and  W.  p.  55 ;  and  Keyse,  1886,  11  P.  D.  100.     See  Seduction. 

In  actions  for  assaidt  the  civil  claim  is  not  merely  for  damage  sustained, 
but  in  solatium  for  affront  and  insult.  It  is  not  discharged  by  the  inter- 
position of  the  penal  law:  the  demand  is  for  indemnification  of^the 
injury,  not  for  punishment  (Bell,  Prin.  s.  2032;  Cruickshank,  1747, 
Mor.  4034  ;  Anderson,  13  S.  1130  ;  Glegg,  Ecparation,  91-95  ;  see  Assault). 

In  cases  of  lodily  injury  due  to  the  defender's  negligence  or  misconduct, 
compensation  will  be  given  for  the  physical  suffering  which  has  been 
occasioned,  whether  temporary  or  permanent,  in  addition  to  the  expenses 
of  medical  attendance  and  lodging,  and  to  the  resulting  loss  of  business  or 
business  capacity.     The  award  of  the  jury  will  not  be  interfered  with  unless 


SOLATIUM  3G7 

the  Court  is  of  opinion  that  the  verdict  ought  not  to  have  been  for  more 
than  one-half  of  the  sum  awarded  {Youvg,  10  E.  242,  per  Id.  Pres.  lughs).  If 
the  accident  was  due  to  malice,  more  will  be  awarded  than  if  necdiaence 
was  the  cause  (Ersk.  iii.  1.  s.  14).  In  calculating  loss  of  business  or"  pro- 
fessional income,  the  jury  are  not  to  impose  upon  the  defender  the  liability 
to  pay  the  pursuer  an  annuity  equal  to  his  income  at  the  time  of  the 
accident  {Young,  supra;  M'Zaurin,  19  E.  346;  M'Kcchnie,  20  D.  551; 
Glegg,  Beparation).     See  Negligexce  ;  Eepakatiox. 

Traxsmissibility  of  Actions. 

Ld.  "Wood  {Neilson  v.  Eoclgcr,  16  D.  325)  said :  "  When  a  claim  for 
damages  and  solatium  arises  out  of  bodily  injury,  or  from  any  other  cause, 
the  right  vests  ipso  jure  and  ipso  facto,  prior  to  any  proceeding  or  decree  for 
its  constitution ;  it  is  a  moveable  claim — is  assignable  either  by  positive 
conveyance  or  implied  legal  assignation,  and  passes  to  personal  representa- 
tives." It  would  appear,  however,  that  the  law  has  been  so  far  modified 
that  a  man's  personal  representatives  can  raise  or  carry  on  an  action  where 
the  deceased  suffered  pecuniary  loss,  provided  the  deceased  has  not 
expressly  or  impliedly  discharged  the  claim  (Wight,  11  E.  217);  but  the 
maxim  Actio  personalis  moritur  cum  picrsona  will  apply  to  prevent  their 
raising  or  continuing  a  claim  for  mere  solatium  to  the  deceased  {Auld  v. 
Sliairp,  2  E.  191,  per  Ld.  J.-Cl.  Moncreiff,  at  p.  213;  Ld.  M'Laren's  opinion 
in  Bern's  Executor  v.  Montrose  Asylum,  20  E.  859,  at  p.  862,  where  AulcVs 
case  is  commented  on,  and  Broom's  Legal  Maxims,  6th  ed.,  p.  885,  is  quoted 
and  approved).  Though  a  claim  for  solatium  alone  does  not  transmit  to 
representatives,  it  does  transmit  against  representatives  of  the  wroug-doer 
{Evans,  12  E.  1295). 

Actions  Competent  to  Eelatives  in  their  own  Eight. 

In  cases  oi  fatal  hoclily  injury  due  to  another's  negligence  or  misconduct, 
our  Courts,  "  by  a  series  of  decisions  which  trench  somewhat  closely  upon 
the  province  of  the  Legislature  "  (Ld.  Watson  in  Darling  v.  Gray  cC-  Sons, 
19  E.  (H.  L.)  31),  have  long  recognised  a  claim  on  the  part  of  certain  near 
relatives  of  the  deceased  for  solatium,  and  any  pecuniary  loss  which  they 
can  qualify  in  respect  of  loss  of  support  {Guild,  1605,  ]\Ior.  13903  ;  Dow,  6  D. 
534).     Ld.  Eros.  Inglis  {Eistcns  v.  N.  B.  Bwy.,  8  M.  980)  said :  "  The  true 
foundation  of  this  claim  is  partly  nearness  of  relationship  ami  partly  the 
existence  during  life,  as  between  the  deceased  and  the  claimant,  of  a  mutual 
obligation  of  support  in  case  of  necessity."     These  relatives  are  the  husljand, 
wife,  parents,  ancl  children  of  the  deceased.     Step-parents  and  step-children 
have  not  tlie  riglit,  but  it  is  by  no  means  clear  wliether  it  is  competent  to 
grandparents  and  grandchildren.     They  se«m  to  satisfy  the  two  conditions 
— nearness  of  relationship  and  mutual  ol)ligation  to  aliment — laid  down  liy 
Ld.  I'res.  Inglis  in  Eistcns'  ca.se ;  but  in  Darling  v.  Gray  cO  Sons  {supra)  Ld. 
A\^atson,  referring  to  the  earlier  case  of  Clarke  v.  T/ic  Carfin  Coal  Co.  (18 
E.  (II.  L.)  63),  said  :  "  The  practical  clfect  of  your  Lordships'  decision  was  to 
limit  the  class  to  persons  standing  in  I  he  legitimate  relation  of  husband, 
father,  wife,  mother,  ov  child  to  the  deceased."     A  bastard  cannot  claim  for 
tl)C  death  ui  his  mother,  nor  the  mother  of  the  l>astard  for  the  death  of  her 
child  {Clarke,  supra ;   Weir  v.  Coltncss  Iron  Co.,  16  li.  614).     Collaterals 
have  no  such  obligation  of  mutual  sujtport,  and  so  have  no  title  to  sue  either 
for  solatium  or  for  i)ccuniary  loss  (Gnenhorn,  17  D.  860  ;  Eistcns,  8  M.  980). 
A  married  woman  cannot  raise  this  action  with  tlic  mere  concurrence  of 
lier  husband  (  W/iilchead,  20  E.  1045).     A  joint  action  at  the  instance  of  a 


368  SOLDIEES 

father  and  mother  for  reparation  was  dismissed  as  incompetent,  the  mother 
having  no  title  to  sue  while  her  husband  was  alive  {Bell,  1896,  (0.  H.) 
4  S.  L.  T.  No.  252,  p.  166). 

The  damages  in  such  cases  are  not  to  be  estimated  merely  by  the 
pecuniary  advantages  which  the  family  derived  from  the  exertions  of  the 
deceased  in  business;  a  solatium  will  be  given  when  "the  death  of  the 
sufferer,  instead  of  being  a  loss  to  the  family,  might  be  regarded  as  a  benefit 
on  account  of  his  bankruptcy  and  dissipated  habits"  {Brown,  26  Feb. 
1813,  F.  C. ;  Black,  9  Feb.  1804,  F.  C. ;  5  Paton,  567).  In  the  case  of  Horn 
v.  N.  B.  Bioy.  (5  E.  1055,  1073),  £550  was  allowed  to  a  father  on  account 
of  the  death  of  a  son,  who  had  been  his  partner  in  a  business  worth  £700, 
the  son's  share  being  valued  at  £100.  On  the  other  hand,  the  Court 
reduced  from  £900  to  £500  the  damages  awarded  to  a  wife  on  the  death 
of  her  husband,  who  was  earning  £150  per  annum  {Wallace,  15  E.  307). 

In  the  case  of  an  accident  that  has  not  been  immediately  fatal,  the 
deceased's  right  of  action  may  pass  to  his  representatives  who  might  also  have 
been  entitled  to  sue  for  solatium  on  their  own  behalf.  The  two  claims  are 
quite  distinct  in  their  origin,  the  latter  only  emerging  on  the  death  of  the 
iujured  man  ;  but  it  has  been  settled  by  the  case  of  Darling  v.  Gray  &  Sons 
(19  E.  (H.  L.)  31),  that  where  the  injured  man  has  raised  an  action  himself, 
and  his  executors  have  sisted  themselves  in  his  place,  a  second  action  for 
solatium  is  incompetent.  Ld.  Watson  said  :  "  There  is  not  a  single  instance 
in  which  the  Court  has  allowed  two  actions  to  be  brought  in  respect  of  the 
same  negligent  act  leading  to  the  injury  and  death  of  one  person.  Even  in 
cases  where  the  right  of  relatives  to  sue  has  been  recognised,  they  must 
bring  one  suit  and  one  only,  in  which  the  damages  due  to  them  respectively 
might  be  assessed"  (Glegg,  Bejyaration,  pp.  68-71). 

Under  the  Workmen's  Compensation  Act,  1897  (60  &  61  Vict.  c.  37), 
the  dependants  who  are  entitled  to  claim  compensation  in  Scotland  are 
those  persons  who  can  sue  the  employer  at  common  law  for  damages  and 
solatiiim  in  respect  of  the  death  of  the  workman,  but  it  is  necessary  for  them  to 
prove  loss  of  support,  and  they  consequently  cannot  sue  for  solatium  by  itself. 
It  is  open  to  doubt  whether  they  can  claim  for  solatium  in  addition  to  patri- 
monial loss.  The  first  Schedule  I.  {a  (ii.))  sets  forth  that  where  the  work- 
man leaves  dependants  in  part  dependent  on  his  earnings,  an  amount  of 
compensation  may  be  given  "  reasonable  and  proportionate  to  the  injury  oi 
the  said  dependants."  But  these  words  would  probably  not  support  a  claim 
for  solatium,  because  (1)  the  Schedule  is  equally  applicable  to  England  and 
Scotland,  and  in  England  no  claim  for  solatium  is  recognised.  (2)  Similar 
words  in  Lord  Campbell's  Act  (English)  have  been  held  not  to  cover  such  a 
claim  {Blake  v.  Midland  Rwy.,  1852,  18  Q.  B.  93).  (3)  The  Act  repudiates 
rather  than  follows  the  common  law  in  disallowing  a  claim  for  solatium 
alone  (Glegg  on  the  Worhnens  Compensation  Act,  pp.  8,  36,  41). 

In  England  a  claim  for  solatium  is  not  recognised  at  common  law,  but 
the  jury  is  allowed  to  give  vindictive  or  exemplary  damages  in  all  cases  where 
a  claim  for  solatium  by  the  injured  person  himself  would  be  competent  in 
Scotland;  and  in  cases  of  fatal  accident,  Lord  Campbell's  Act,  1846  (9  &  10 
Vict.  c.  93),  has  given  near  relatives  rights  similar  to  those  which  they 
have  at  common  law  in  Scotland.  By  sec.  5  "  parent "  and  "  child "  are 
defined  to  include  grandparents  and  grandchildren,  and  also  step-parents 
and  step-children. 

See  Eepakation  ;  Title  to  Sue  ;  Damages,  ]\Ieasuke  of. 

Soldiers. — See  Army. 


SOLICITOES  IN  THE  SUPEEME  COUETS  369 

Solicitor.— In  Scotland  the  generic  name  applied  to  all  persons 
entitled  to  practise  in  Court,  except  members  of  the  Eaculty  of  Advocates, 
is  "Law  Agent,"  which  see.  But  the  term  solicitor  is  now  verv  (generally 
used  as  svnonjmous.  "  '^ 

Solicitors  in  the  Supreme  Courts.— It  was  not  till 

the  year  175-i  that  solicitors,  as  disliniiuished  from  advocates  and  their 
clerks,  were  officially  recognised  as  entitled  to  practise  in  the  Supreme 
Courts  of  Scotland  (see  Advocate  and  Law  Agent).  In  1797  the 
thirty-seven  solicitors  then  practising  obtained  from  the  Crown  a  charter 
incorporating  them  and  sulisequent  members  of  the  society  into  a  corporation 
entitled  "  The  Society  of  Solicitors  in  the  Court  of  Session,  Commission  of 
Teinds,  and  High  Court  of  Justiciary  in  Scotland."  This  charter  was  con- 
firmed and  amended  by  a  private  Act  of  Parliament,  passed  on  13th  July 
1871,  \\hich,inicr  «/'>/,regulated  the  qualifications  of  candidates  for  admission, 
and  re-incorporated  the  society  under  the  name  of  "  The  Society  of  Solicitors 
in  the  Supreme  Courts  of  Scotland."  The  society  has  always  required 
from  applicants  for  admission  high  qualifications  as  regards  both  general 
knowledge  and  law;  but  it  has  taken  advantage  of  the  provisions  of  the 
Law  Agents  Act  of  1873,  sec.  19,  entitling  it  to  admit  enrolled  law  agents  as 
after  mentioned.  There  are  at  present  about  three  hun(h-cd  and  eighty 
members,  and  the  greater  part  of  the  litigation  in  the  Court  of  Session  is 
conducted  by  them.  The  initial  letters  S.S.C.  are  generally  used  to  designate 
members  of  the  society.  The  otKce-bearers  consist  of  a  president,  vice- 
president,  treasurer,  secretary,  librarian,  fiscal,  and  collector  of  the  Widows' 
Fund.  The  same  person  may  be  appointed  treasurer  and  collector.  The 
affairs  of  the  society  are  managed  by  a  council,  consisting  of  the  office-bearers 
and  of  seven  ordinary  members  elected  by  the  society,  two  of  wliom  go  out 
of  office  in  each  year,  two  others  being  chosen  in  their  stead.  Three  general 
meetings  of  the  society  are  held  in  each  year,  viz.  on  the  first  Tuesdays  of 
March,  June,  and  December.  The  office-bearers,  two  examiners,  two  censors, 
and  two  auditors  are  elected  annually  at  the  general  meeting  in  June.  The 
agents  for  the  poor  in  civil  and  criminal  causes,  the  commissioners  for 
adjusting  the  rate  of  interest  on  heritable  securities,  and  tlie  representative 
on  the  Board  of  the  Edinburgh  Eoyal  Infirmary,  are  elected  annually  at  the 
general  meeting  in  December. 

The  society  has  I'cccntly  erected,  on  a  site  adjoining  the  Pailiamont 
House,  a  handsome  library,  including  a  hall  for  meetings  of  the  society  and 
a  suite  of  smaller  rooms,  at  the  cost  of  nearly  £30,00U.  I'hc  collectii>n  df 
books,  both  in  law  and  in  general  literature,  is  most  valuable,  consisting  of 
about  eighteen  thousand  voluims. 

The  following  are  the  existing  regulations  for  a<bnission  of  members, 
approved  of  at  a  general  meeting  held  on  1st  June  1897 : — 

Enrolled  law  agents  shall,  on  application,  subject  to  the  rccoinnuMidaticn 
of  the  Council  and  to  the  following  regulations,  and  to  ]»ayment  of  all  dues, 
be  eligible  foi-  admission  to  the  Society,  jnovided  no  enrolled  law  agent  shall 
be  eligible  who  has  be(!n  admitted  as  such  in  icspeet  of  his  having  been 
previously  qualified  as  a  notary  public,  and  which  (|uali(icatiou  has  been 
acquired  suljsequent  to  Nth  August  1H!)G.  Ajtjilicants  who  have  not 
passed  the  General  Knowleilgo  I'^xaminations,  or  who  do  not  jiossess  one  of 
the  equivalents  therefor,  as  provided  by  the  Acts  of  Sederunt  of  18th  March 
1893,  12th  July  1893,  and  29th  January  1895,  shall  undergo  such  examin- 
ation as  shall  be  ])rescribed  by  the  (jouncil.  Ajiplicants  who  have  not 
passed  the  examinatiou  in  law  required  by  the  Law  Agents  (Scotland)  Act, 

8.  E. — VOL.  XI,  21 


370  SOLICITOES  IN  THE  SUPllEME  COUIiTS 

1873,  the  Law  Agents  and  ISTotaries  rublic  (Scotland),  Act,  1891,  and 
relative  Acts  of  Sederunt,  or  who  do  not  possess  one  of  the  equivalents 
therefor  recognised  by  the  said  Acts,  shall  undergo  such  examination  as  shall 
be  prescribed  by  the  Council. 

The  regulations  for  applicants  are  as  follows  : — 

1.  Every  applicant  shall  lodge  with  the  secretary  a  written  application 
for  admission  as  a  member,  and  shall  state  therein  his  age  and  birthj)lace, 
his  educational  and  professional  training,  what  examinations  he  has  passed, 
and  whether  he  is  in  business  on  his  own  account,  and  the  offices  in  which 
he  has  been  employed. 

2.  Along  with  "the  application  shall  be  lodged  letters  by  two  members 
recommending  the  applicant,  and  stating  their  personal  knowledge  of  his 
moral  character,  business  quahfications,  and  proft-ssional  conduct  to  the 
date  of  the  application. 

3.  There  shall  also  be  lodged  v;ith  the  secretary — (1)  all  certificates  of 
examination;  (2)  extract  of  the  applicant's  act  of  admission  as  a  law 
agent ;  (3)  certificate  of  the  registrar  of  law  agents  of  his  enrolment ;  and 
(4)  certificate  of  the  Clerk  to  the  Lord  President  of  the  applicant's  enrolment 
as  an  agent  practising  in  the  Supreme  Court. 

4.  The  secretary  shall,  in  the  first  place,  submit  these  documents  to  the 
Council,  and,  if  the  Council  approve  thereof,  he  shall  forthwith  transmit 
them  to  two  of  the  examiners,  before  whom  the  applicant  shall  appear,  and 
to  whom  he  shall  furnish  any  additional  information  they  may  require. 
Upon  the  examiners  certifying  that  the  applicant  is  duly  qualified  for 
admission,  the  secretary  shall  forthwith  post  up  in  the  members'  reading- 
room  a  notice  of  the  application,  as  nearly  as  may  be  in  the  following 

terms : — 

S.S.C.  Society. 

Application  for  admission  Ijy  [naine]  ,  [residence]  ,  [business 

address] 

[If  applicant  has  been  less  than  a  year  in  business,  state  also  office  in  which  he  was 

last  employed.] 

Recommended  by  Messrs.  C.  D.  and  E.  F. 
[Date  of  notice.]  G.  ff.,  Secretary. 

5.  After  the  foregoing  notice  shall  have  been  posted  for  fourteen  days 
the  secretary  shall  transmit  the  application  and  relative  documents  to  the 
censors,  before  whom  the  candidate  shall  appear.  The  censors  shall  make 
such  inquiry  as  they  may  deem  expedient  into  his  moral  character  and 
professional  conduct,  and  shall  report  in  writing  to  the  Council  the  result 
of  their  inquiries.  The  secretary  shall  lay  the  papers  before  the  Council  at 
its  next  meeting,  and  (unless  otherwise  directed  by  the  president)  shall  give 
the  applicant  notice  to  be  in  attendance  at  such  meeting,  in  order  that  the 
Council  may  confer  with  him  before  considering  his  application. 

6.  If  the  Council  shall  recommend  the  application,  notice  of  the  same, 
in  the  form  prescribed  in  Eegulation  4,  shall  be  given  in  the  billet  calling 
the  meeting  of  the  society  at  which  the  application  is  to  be  dealt  with,  at 
which  meeting,  unless  by  a  majority  of  members  present  it  shall  be  decided 
to  delay,  the  applicant  shall  be  balloted  for. 

7.  No  applicant  shall  be  admitted  unless  the  ballot  shall  disclose  a 
majority  in  favour  of  admitting  of  at  least  two-thirds  of  the  members 
present  and  voting  at  the  meeting.  The  declaration  by  the  chairman  of 
the  meeting  as  to  the  result  of  the  ballot  shall  be  conclusive. 

8.  All  entry-money  and  other  dues  exigible  from  an  entrant,  including 
the  dues  payable  to  the  Widows'  Fund,  shall  bo  paid  within  ten  days  after 


SOVEPvEIGN  371 

the  ballot.     Xo  enrolment  shall  be  made  and  no  certificate  of  admission 
shall  be  granted  to  an  entrant  until  such  entry-money  and  dues  are  paid. 

9.  The  dues  payable  by  entrants  on  admission  to  the  society  are  £65. 
Entrants  also  become  contributors  to  the  Widows'  Fund,  and  pay  on 
admission  the  entry-money  of  £35,  and  the  dues  fixed  by  the  society's  Act 
of  Parliament,  which  vary  in  each  case,  and  shall  otherwise  comply  with 
the  rules  applicable  to  the  Widows'  Eund. 

10.  The  annual  subsidy  as  at  present  fixed  is  £3,  3s.  for  town  members, 
and  £1,  Is.  for  country  members.  The  annual  contribution  to  the  Widows' 
Fund  is  £6,  Gs. 

Solicitor-Genera!.— The  Solicitor-General  is  one  of  the  Crown 
Counsel  in  Scotland,  and  is  next  in  dignity  to  the  Lord  Advocate.  Since 
1725  the  privilege  of  pleading  within  the  bar  has  been  accorded  to  him. 
By  the  Criminal  Procedure  (Scotland)  Act,  1887  (50  &  51  Vict.  c.  35,  s.  3), 
indictments  may  be  at  the  instance  of  the  Solicitor-General  during  a 
vacancy  in  the  office  of  Lord  Advocate. 

Sovereign. — The  history  of  the  title  to  the  Crown,  the  law  at 
present  in  force  regarding  it,  and  the  forms  observed  on  the  accession 
and  coronation  of  a  *  new  sovereign,  have  been  already  referred  to.  (See 
Ceown.) 

Constitutional  Position. — The  supreme  executive  power  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  the  dependencies  thereof  is 
vested  in  the  sovereign.  The  present  style  adopted  is :  "  Victoria,  by  the 
Grace  of  God,  of  the  United  Kingdom  of  Great  Britain  and  Ireland  Queen, 
Defender  of  the  Faith,  Empress  of  India "  (see  39  &  40  Geo.  iii.  c.  67 ; 
39  &  40  Vict.  c.  10).  Whether  the  sovereign  be  king  or  queen,  the  rights 
vest  equally  (1  Mary,  sess.  3,  c.  1  ;  1  Bell,  Com.  p.  218  in  notes).  The  first 
duty  of  the  sovereign  is  to  govern  according  to  law.  This  has  always 
been  recognised  by  the  common  law  (Tac  dc  Mor.  Germ.  c.  7;  Bractou, 
Z.  1,  c.  8;  ih.,  L.  2,  c.  16,  s,  3  ;  Fortescue,  c.  9  and  c.  34;  see  also  in 
Year-Book,  19  Hen.  vi.  63 :  "  La  ley  est  le  plus  haute  inheritance  que  le 
roy  ad ;  car  par  la  ley  il  meme  et  touts  ses  sujets  sont  rules,  et  si  la  ley 
ne  f uit,  nul  roi,  et  nul  inhc^'ritance  sera  ").  These  provisions  of  the  common 
law  have  also  been  embodied  in  statute  (12  &  13  Will.  III.  c.  2).  The 
counterpart  of  this  duty  of  the  sovereign  towards  his  subjects  is  that  of 
allegiance  ^^J  the  subjects  towards  the  sovereign  (see  Alleciance). 

Siiouscs  of  Sovereigns. — The  position  of  the  spouse  of  a  sovereign  is 
peculiar.  In  tlie  case  of  the  husbands  of  queens  this  position  has  diUbred. 
Thus  Pliilip  of  Spain  (Statute  1  Mary,  sess.  3,  c.  2)  enjoyed  the  full 
rank  of  King  during  liis  marriage  with  the  (^ueen,  and  jointly  with  her. 
The  Prince  and  Princess  of  Orange,  William  and  ^Lary,  were  declared 
(1  Will,  and  ^lary,  sess.  2,  c.  2)  to  be  King  and  (^hiecn  of  England,  France, 
and  Ireland,  "to  hold  the  crown  and  royal  dignity  of  the  said  kingdoius 
and  dominions  during  their  lives,  and  tlie  life  of  the  survivor  of  them; 
and  that  tlic  sole  and  full  exercise  of  the  regal  ]towcr  be  only  in,  and 
executed  by,  the  Prince  of  Orange  in  the  names  of  the  Prince  and  Princess 
during  their  joint  lives."  The  late  husband  of  Her  Most  Gracious  ^Majesty 
continued  to  be  known  by  his  own  title  of  I'rince  Albert  until  1857, 
when  he  was  made  "Prince  Consort"  by  patent.  lie  all  along  enjoyed 
immediate  precedence  next  to  Her  Majesty.  He  was  never,  however, 
created  a  Peer.  The  wife  of  a  reigning  king  is  Queen  Consort.  Her 
position  diOers  from  that  of  married  women  in  general,  inasmuch  as  she 


372  SOVEEEIGN 

is  considered  in  law  as  a  feme  sole.  She  is  a  public  person,  exempt  and 
distinct  from  the  King.  She  may  purchase  lands  and  convey  them,  make 
leases,  grant  copyholds,  and  do  other  acts  of  ownership  without  her 
husband's  consent.  This  privilege  dates  from  Saxon  times  (Seld.  Jan. 
Aug.  1.  42).  She  may  also  take  grants  from  the  King,  and  she  may  sue 
and  be  sued  in  her  own  name,  with  the  addition  of  Queen  of  England 
(32  Hen  viii.  c.  51,  1540 ;  2  Geo.  iii.  c.  1 ;  15  Geo.  iii.  c.  33 ;  39  &  40 
Geo.  III.  c.  88 ;  47  Geo.  in.  sess.  2,  c.  45).  Beyond  this,  the  Queen  Consort 
has  certain  exemptions  and  minute  privileges.  She  pays  no  toll,  and  is 
not  liable  to  any  amercement  in  any  Court  (Co,  Litt.  133 ;  Pinch,  L.  185). 
But  unless  where  specially  exempted  by  law,  she  is  otherwise  in  the  same 
position  as  a  subject.  It  is,  however,  high  treason  to  compass  her  death 
or  to  commit  adultery  with  her  (25  Edw.  in.  st.  5,  c.  2).  The  revenue  of 
the  Queen  Consort  is  now  regulated  by  statute  (see  infra,  Revenue  of  the 
Sovereign).  A  Queen  Dowager  is  the  widow  of  a  king,  and  retains  most  of 
the  privileges  which  she  enjoyed  as  Queen  Consort.  It  is,  however,  no 
longer  treason  to  compass  her  death  or  commit  adultery  with  her,  as  the 
succession  to  the  Crown  is  not  thereby  endangered.  If  she  marry  a 
subject  she  does  not  lose  her  regal  style  and  dignity.  Catherine,  widow 
of  Henry  v.,  after  marrying  Owen  Tudor,  maintained  an  action  against 
the  Bishop  of  Carlisle  by  the  name  of  Catherine  "  Queen  of  England " 
(cf.  2  Inst.  18). 

The  Boyal  Prerogative  is  the  power  and  right  which  attaches  to  the 
Crown.  This  prerogative  has  very  definite  limits,  which  have  been  the 
subject  of  discussion  and  dispute  in  many  pages  of  our  history.  It 
was  claimed  to  be  higher  in  the  time  of  James  i.  than  at  any  other 
period.  It  was  laid  down  by  him  in  the  following  terms :  that  "  as  it 
is  atheism  and  blasphemy  in  a  creature  to  dispute  what  the  Deity  may 
do,  so  it  is  presumption  and  sedition  in  a  subject  to  dispute  what  a  king 
may  do  in  the  height  of  his  power ;  good  Christians  .  .  .  will  be  content 
with  God's  will,  revealed  in  His  Word ;  and  good  subjects  will  rest  in  the 
king's  will,  revealed  in  his  law"  (King  James'  Worlzs,  531,  577).  The 
limitation  of  the  regal  power  has  been  always,  however,  recognised  in  our 
constitution.  This  principle  is  embodied  in  the  maxim :  "  Nihil  enim 
aliud  potest  rex,  nisi  id  solum  quod  de  jure  potest "  (Finch,  L.  84,  85 ; 
Bracton,  i.  3,  tr.  1,  c.  9). 

The  prerogative  of  the  sovereign  relates  to  his  political  character,  his 
royal  authority,  and  his  revenue. 

1.  (1)  The  King  is  supreme  head  of  the  State,  clothed  with  imperial  as 
well  as  royal  dignity  (24  Hen.  viii.  c.  12 ;  25  Hen.  viii.  c.  22). 

(2)  ^le  is  irresponsible.  The  maxim  "  Eex  non  potest  peccare  "  embodies 
this.  It  does  not  mean  that  everything  done  by  the  Government  is  just  and 
lawful,  but  only  that  no  personal  crime  or  misconduct  can  be  imputed  to 
the  sovereign.  When  the  rights  of  a  subject  have  been  infringed  by  the 
Crown  or  its  officers,  the  remedy  lies  in  a  Petition  of  Eight.  In  Scotland 
this  process  is  not  used,  the  Lord  Advocate  being  sued  directly.  (Por  EngHsh 
practice,  see  Clode  on  "  Petition  of  Eight " ;  Ency.  of  English  Law,  Petition 
OF  Eight.)  A  defence  always  competent  to  the  Crown  when  sued  by  an 
alien  is  that  the  conduct  complained  against  was  an  act  of  State  {Foil  v. 
Lord  Advocate,  35  S.  L.  E.  637). 

2.  The  royal  authority  or  power  which  is  placed  in  the  hands  of  the 
sovereign  may  be  divided  as  follows  : — 

(1)  The  sovereign  represents  the  State  towards  foreign  Powers  by  sending 
ambassadors  and  receiving  them. 


SOYEEEIGN  373 

(2)  The  sovereign  makes  treaties  and  alliances  with  foreign  States  and 
princes  {Com.  Dig.  "  Prerogative,"  B.  2,  3). 

(3)  He  makes  war  or  declares  peace  (Bac.  Abr.  "  Prerog."  D.  4). 

(4)  He  is  a  constituent  part  of  the  supreme  legislative  power.  All 
Bills  passed  by  the  two  Houses  of  Parliament  must  receive  the  royal  assent 
before  they  become  law. 

(5)  He  is  head  of  the  military  system  and  commands  the  army  and  navy 
(for  provisions  for  the  defence  of  tlie  country,  see  23  &  24  Vict.  c.  109. ;  ih., 
c.  112  ;  51  &  52  Yict.  c.  31 ;  ih.,  c.  32 ;  52  &  53  Vict,  c.  8 ;  and  the  Annual 
Supply  Acts). 

(6)  He  is  the  fountain  of  justice  and  appoints  all  judges,  who  can  after- 
wards only  be  removed  by  him  upon  an  address  from  both  Houses  of 
Parliament. 

(7)  He  is  likewise  the  fountain  of  honour. 

(8)  He  is  the  arbiter  in  commerce.  He  establishes  public  markets  and 
regulates  weights  and  measures  (9  Hen.  iii.  c.  25  ;  Plac.  35,  Edw.  i.,  apud 
Cowel's  Interpr.  tit.  Fondas  regis]  41  &  42  Vict.  c.  49.  For  enactments  re 
coinage,  see  33  &  34  Vict.  c.  10). 

(9)  The  sovereign  is  also  supreme  head  of  the  Established  Churches  of 
England  and  Scotland  (26  Hen.  viii.  c.  1 ;  1  Eliz.  c.  1).     See  Ciiuecii. 

3.  The  Royal  Revenue. — The  royal  revenue  is  in  the  hands  of  the  Lords 
Commissioners  of  the  Treasury.  The  Exchequer  and  Audit  departments  are 
consolidated  by  29  &  30  A'ict.  c.  39.  The  revenue  of  the  Crown  is  either 
ordinary  or  extraordinary.  The  ordinary  revenue  is  that  which  has  sub- 
sisted from  early  times,  or  for  which  Parliament  has  made  an  exchange ; 
while  the  extraordinary  revenue  is  that  which  is  supplied  by  Parliament  as 
an  addition  to  that  properly  attached  to  the  kingly  office.  These  sources  of 
income  are  now  paid  into  the  national  Exchequer  for  the  support  of  army 
navy  and  tlie  whole  executive  functions  of  the  Crown,  and,  in  exchange,  a 
grant  from  Exchequer,  called  the  Civil  List,  has  been  made  in  favour  of  the 
sovereign.  At  the  commencement  of  the  present  reign,  a  Civil  List  was 
settled  on  Her  Majesty  for  life,  amounting  to  £.".85,000  per  annum,  to  be 
paid  quarterly  out  of  the  Consolidated  Fund.  Of  this  sum  £00,000  is 
devoted  to  Her  Majesty's  Privy  Purse,  while  the  remainder  is  applied  to 
the  salaries  and  expenses  of  her  household  (1  &  2  Vict.  c.  2).  (For  regula- 
tions applying  to  the  private  estate  of  the  sovereign,  see  25  &  2G  Vict.  c.  37, 
amended  l)y  36  &  37  Vict.  c.  61.) 

Rights  of  the  Sovcrcigyi  i.i  relation  to  Landed  Propcrlg.— AW  the  land  in 
Scotland  (with  the  exception  of  certain  property  in  Orkney  and  Shethuul)  is 
held  on  the  feudal  system,  i.e.  "mediately  or  immediately"  from  the 
Crown.  No  land,  therefore,  can  l>e  without  an  owner;  and  wflere  the 
succession  of  the  last  owner  fails,  it  reverts  to  the  sovereign  as  vjlimiis 
haeres.  This  applies  also  to  moveables.  Quod  null  ins  est  Jit  domini  regis. 
It  applies  also  to  movealtlcs  in  the  case  of  treasure  trove. 

Land  is  jiresuraed  to  fall  inider  this  category  mdess  the  jiossc^-sor  have 
a  title  in  writing,  and  it  may  be  claimed  by  the  sovereign.  The  sovereign 
does  not  need  to  be  "seised"  in  land.  It  vests  in  \\\n\jarc  ro?-onor, although, 
in  the  event  of  his  succeeding  to  the  land  (tf  a  sultjcct,  "  service  as  heir  "  is 
necessary^  but  no  sasinc  follows.  For  the  actual  land  owned  by  the 
Crown  in  Scotland,  sec  Ckown  Laxhs.  Negative  prescrii)tion  runs  against 
the  Orown  as  against  a  subject  (A'.  Fifes  Trs.,  1819,  111).  8S9,  and  Feans 
of  Chapel  Royal,  1869,  7  AL  (H.  L.)  19),  though  this  was  doubted  i)y  Erskine 
(B.  iii.  tit.  7,  s.  31).  ]trobably  bccuiso  of  a  mistake  in  Stair  {W.  ii.  tit.  3, 
a.  33).     Lands  also  fall  to  the  sovereign  by  escheat.     See  Esciihat. 


374  SOWMING  AND  KOWMING 

The  Crown  lias  certain  rights  called  Eegalia.  These  are  classed  as 
(1)  Forestry,  which  may  be  conferred  on  a  subject ;  (2)  Salmon  fishing ; 
(3)  Gold  and  silver  mines;  (4)  Eivers,  ports,  and  highways;  (5)  the 
seashore  or  foreshore.  (See  articles  under  these  headings.)  As  to  the  rights 
of  the  sovereign  in  comx^etition  with  the  subject,  see  Ckown  Debts. 

The  Paternal  Power  of  the  Sovereign.— \Y\\evi  a  child  is  left  without 
tutors  or  curators,  the  sovereign,  as  pater i^atriac,  appoints  these  after  calling 
the  nearest  of  kin  on  the  father's  and  mother's  side.     See  Tutok. 

For  the  whole  subject,  see  Stephen's  Ncio  Commentaries,  vol.  ii.  394  to 
595.     Anson  on  the  Constitution,  Part  "  The  Crown  "  ;  etc.  etc. 

Sowming  and  Howmlrsg.— Where  several  persons  enjoy _a 
right  of  servitude  of  pasturage  over  a  common,  the  amount  of  stock  each  is 
entitled  to  pasture  thereon  is  determined  by  an  action  of  sowming  and 
rowming.  By  sown  is  meant  grass  for  one  cow  or  for  five  (in  some  places 
ten)  sheep ;  while  rown  is  an  old  word  for  a  piece  of  land,  and  is  still  used 
to  indicate  a  farm  (Jamieson's  Diet.  ;  Innes  on  Legal  Antiquities,  p.  268  ; 
Stair  ii  7.  14;  Ersk.  ii.  9.  15  ;  Eankine,  Lancloicnership,  3rd  ed.,  398; 
1603',  c.  7  ;  Mackenzie,  1825,  4  S.  146  ;  M'Ncill,  1828,  6  S.  422).  The  action 
of  sowming  and  rowming  has  two  objects : /rs^f,  to  sown  the  servient 
subject,  i.e.  to  determine  the  amount  of  stock  it  can  pasture ;  and  second,  to 
fix  the  proportion  effeiring  to  each  of  the  dominant  tenements  (rowras) 
according  to  their  respective  capacity  for  winter  foddering.  Even  after  the 
action  the  parties  enjoy  their  rights  in  common,  none  having  a  right  to 
insist  on  a  division,  "  seeing  it  would  frequently  be  to  the  disadvantage  of 
severals  of  the  parties  interested  :  as  when  common  pasturage  is  in  a  common 
muir,  enclosed  with  a  dyke,  and  so  needeth  none,  at  least  but  one,  herd  for 
them  all,  which,  if  it  were  divided,  oftimes  the  several  proportions  of 
most  intei-ested  could  not  be  worth  a  several  herd,  especially  when  the 
property  remains  in  another,  though  burdened  with  this  servitude  "  (Stair, 
ii.  7.  14). 

The  owner  of  the  servient  tenement  cannot  be  called  as  sole  defender 
(Bunlop,  1679,  Mor.  14531).  He  shares  along  with  the  dominant  owners  if 
he  has  possessed,  or  if  there  be  a  surplus  {Culross,  1704,  4  B.  S.  589),  and 
he  cannot  by  the  action  be  prevented  from  tilling  the  ground,  or 
breaking  the  surface  for  the  purposes  of  mining  and  quarrying,  if  he  has 
been  in  use  to  do  so,  or  if  he  leaves  sufficient  unbroken  surface  for^the 
requirements  of  tlie  dominant  owners  {E.  Southcsh,  1680,  Mor.  14531 ; 
Culross,  supra  ;  Littlejohn,  1693,  4  B.  S.  42  ;  see  Basturage). 

Special  Case. — Certain  determinations  of  inferior  judges,  of  Com- 
missioners of  Inland  Revenue  and  others,  if  deemed  erroneous  in  point  of 
law,  may  be  brought  under  review  of  the  Court  of  Session  by  means  of  a 
case  stated  under  the  provisions  of  certain  Acts  of  Parliament  (see  Case). 
Cases  so  stated  are  sometimes  called  Special  Cases,  but  by  the  term  Special 
Case  is  usually  understood  a  case  brouaht  into  the  Court  imder  sec.  63 
of  the  Court  of  Session  Act,  1868  (31  &  32  Vict.  c.  100),  which  provides 
that  "  where  any  parties  interested,  whether  personally  or  in  some  fiduciary 
or  official  character,  in  the  decision  of  a  question  of  law  shall  be  agreed 
upon  the  facts,  and  shall  dispute  only  on  the  law  applicable  thereto,  it  shall 
be  competent  for  them,  without  raising  any  action  or  proceeding,  or  at  any 
stage  of  an  action  or  proceeding,  to  present  to  one  of  the  Divisions  of  the 
Court  a  Special  Case  signed  by  their  counsel,  setting  forth  the  facts  upon 
which  they  are  so  agreed,  and  the  question  of  law  thence  arising  upon  which 


SPECIFIC  PEEFOEMAXCE  375 

they  desire  to  obtain  the  opinion  of  the  Court ;  and  which  ease  may  set 
forth  alternatively  the  terms  in  which  the  parties  agree  that  judgment 
shall  be  pronounced  according  to  the  opinion  of  the  Court  upon  the  question 
of  law  aforesaid." 

This  mode  of  procedure  has  been  found  to  be  most  useful  and  con- 
venient, and  is  frequently  adopted,  especially  for  the  settlement  of  questions 
arising  upon  the  construction  of  provisions  made  by  trust  settlements  and 
other  deeds. 

Parties. — A  Special  Case  is  a  contract  binding  the  parties  to  the  state- 
ment of  facts  therein  contained.  Persons  incapable  of  contracting,  or  not 
entitled  to  contract  with  each  other,  cannot  enter  into  a  Special  Case  (Park, 
1876,  3  E.  850).  Tutors  or  curators  ad  litem  will  be  appointed  to  pupils 
and  others  when  necessary  {Christie,  1873,  1  11.  237 :  Eoss,  1877,  5  E.  182). 
All  persons  interested  in  the  judgment  ouglit  to  be  parties  {Madcies  Trustees, 
1875,  2  E.  G21),  otherwise  the  judgment  (if  obtained  at  all)  is  not  res  judicata 
against  them.  Persons  who  have  no  title  or  interest  cannot  be  parties 
{Coiinty  Council  of  Roxburgh,  1897,  24  E.  G57).  Two  or  more  parties  may 
be  represented  by  the  same  agents  and  counsel,  provided  they  have 
not  conflicting  interests ;  but  if  they  have,  then  they  must  be  separately 
represented  (Ellis'  Trustees,  1898,  6  S.  L.  T.  305,  1  Y.  4). 

Competency. — Tliere  must  be  a  question  of  law  stated  {Laicson's  Trustees^. 
1883,  10  E.  1278)  about  which  there  is  a  londfidc  dispute  {County  Council 
of  Eenfrno,  1895,  23  E.  166)  between  parties  having  an  interest  {County 
Council  of  Eoxhurgh,  ut  suirra).  Tlie  Court  will  not  answer  hypothetical 
questions,  nor  give  wliat  is  no  more  than  an  opinion  of  counsel,  by  which 
nobody  would  be  bound  {Morton,  1871,  9  M.  548).  The  question  must  be 
one  wliich  could  have  been  competently  entertained  by  the  Court  in  some 
other  known  form  of  process  {Morton,  supret ;  Parochial  Board  of  Eoth- 
wcll,  1873,  11  M.  399;  Lo^v's  Trustees,  1870,  8  S.  L.  E.  638;  Erucc,  1889, 
17  E.  276 ;  Thomson's  Trs.,  1897,  25  E.  19). 

The  following  cases  may  be  referred  to  as  examples  of  questions  which 
have  l)een  considered  by  the  Court:  Greenock  Ilarlour  Trustees,  1888,  15  E. 
343;  Eamsbotham,  1891,  18  E.  558;  CamphelVs  Trustees,  1895,  22  E.  943. 

Form  and  Process. — Tlie  case  must  set  furth  the  facts  upon  which  the 
parties  are  agreed,  the  contentions  of  the  parties  {Stewart's  Trustees,  1895, 
23  E.  93),  and  tlie  questions  of  law  upon  which  the  opinion  or  judgment  of 
the  Court  is  asked.  Questions  stated  but  not  argued  to  the  Court  will  not 
be  answered  {Mackinnon's  Trustees,  1897,  24  E.  981).  The  case  must  be 
signed  by  the  counsel  liy  whom  it  has  been  adjusted,  and  not  by  other 
co°unsel  for  them  {Hope,  1870,  8  M  699). 

Special  Cases,  unless  otlicrwise  directed,  are  heard  in  tlie  ordinary  course 
of  tlie  rolls  of  the  Division  (A.  S.,  9th  June  1870),  and  generally  the  pro- 
cedure thereafter  follows  the  usual  course.  When  parties  to  a  Special  Case 
wish  a  judgment  which  can  be  extracted  and  appealed  to  the  House  of 
Lords,  they  must  ask  a  judgment,  and  not  merely  an  opinion  {MacduujaU, 
]869,  7  M.  976 ;  sec  also  Jfalliday,  1869,  8  M.  117). 

[Mackay,  Practice,  ii.  243,  Mamial,  465.] 

Specific  Performance.— 'I'lie  JMiisdictiijii  of  the  Scottish 
Courts  to  fjrder  ."pecidc  perfDrinaiico  of  obligations  by  the  pronouncement 
of  decrees  ad  factum  2yrccstandi/m  has  never  been  doubted.  "  In  Scotland 
specific  implement  is  one  of  the  ordinary  remedies  to  which  a  ]iarty  to  a 
contract  is  entitled,  where  the  other  ])arly  to  it  refuses  to  implement  the 
obligation  he  has  undertaken"  (per  Ld.  llerschell,  in  Stewart,  1890,  17  E. 


376  SPECIFICATIO 

(H.  L.)  1).  So,  too,  Ld.  Watson,  at  p.  9  :  "In  England  the  only  legal  right 
arising  from  a  breach  of  contract  is  a  claim  of  damages ;  specific  perform- 
ance is  not  matter  of  legal  right,  but  a  purely  equitable  remedy  which  the 
Court  can  withhold  when  there  are  sufficient  reasons  of  conscience  or 
expediency  against  it.  In  Scotland  the  breacli  of  a  contract  for  the  sale  of 
a  specific  subject  gives  the  party  aggrieved  the  legal  right  to  sue  for  imple- 
ment; and  although  he  may  elect  to  do  so,  he  cannot  be  compelled  to  resort 
to  the  alternative  of  an  action  of  damages  unless  implement  is  shown  to 
be  impossible,  in  which  case  loco  facti  subit  damnum  et  iiiteresse.  Even  where 
implement  is  possible,  I  do  not  doubt  that  the  Court  of  Session  has  inherent 
power  to  refuse  the  legal  remedy  upon  equitable  grounds,  although  I  know 
of  no  instance  in  which  it  has  done  so.  It  is  quite  conceivable  that 
circumstances  might  occur  which  would  make  it  inexpedient  and  uujust 
to  enforce  specific  performance  of  a  contract  of  sale.  .  .  ."  "  The  general 
rule  of  our  law  is  that  when  a  party  has  it  in  his  power  to  fulfil  an  obliga- 
tion which  he  has  undertaken,  the  Court  will  compel  him  to  do  so.  But 
it  must  always  be  in  the  discretion  of  the  Court  to  say  whether  the  remedy 
of  specific  performance  or  one  of  damages  is  the  proper  and  suitable  remedy 
in  the  circumstances"  (per  Ld.  Shand,  Moore,  1881,  9  E.  p.  351). 

Decrees  ad  factum  prcestandiim  are  enforced  by  imprisonment  {Mackenzie, 
1883,  10  K.  1147).  Accordingly,  the  Court  will  not  order  specific  perform- 
ance of  impossible  agreements,  for  that  would  amount  to  perpetual  imprison- 
ment {M' Arthur,  1877,  4  K.  1134);  nor  where  performance  would  interfere 
with  the  rights  of  third  parties,  and  so  might  be  stopped  by  interdict 
.{  Winans,  1883, 10  li.  941) ;  or  where  an  unfair  burden  would  be  thrust  upon 
the  obligor,  as  where  he  had  undertaken  to  run  a  road  through  ground 
-belonging  to  a  third  party,  in  the  belief  that  the  third  party  would  be 
inclined  to  sell  at  a  reasonable  price,  whereas  the  price  ultimately  demanded 
was  prohibitive  {Moore,  1883,  10  11.  351).  See  Sinclair,  1898,  25  E.  703; 
Cli2ypens  Oil  Com].mny,  1897,  25  E.  370;  and  cf.  Ld.  Watson  in  Grahame, 
1883,  9  E.  (H.  L.)  p.  93). 

Specif  icatio. — Specification  in  Eoman  Law  was  one  of  the  recog- 
nised modes  of  acquiring  property.  The  term  was  used  to  denote  the 
formation  by  one  man  of  a  new  subject  or  species  out  of  materials  belonging 
to  anotlier  man.  In  the  classical  period  of  Eoman  law,  it  was  a  subject  of 
dispute  whether  the  new  species  belonged  to  the  owner  of  the  materials,  or 
to  the  person  who  contributed  the  labour.  One  school  of  jurists  held  that, 
on  the  principle  of  accessio  {q.v.),  the  new  species  belonged  to  the  owner  of 
the  materials — the  labour  acceding  to  the  materials.  Another  school  of 
jurists  held  that,  on  the  principle  of  occiqmtio  {q.v.),  the  new  species  belonged 
to  the  maker  {specificans) — the  new  species  being  regarded  as  a  res  nullius 
to  which  the  principle  jit  occupantis  applied.  Justinian  in  the  Institutes 
{Inst.  ii.  1.  25)  settled  the  question  on  the  lines  previously  laid  down  by 
Gains  {Difj.  41.  1.  7.  7).  If  the  new  species  can  be  again  reduced  to  its 
original  form,  as  plate  into  bullion,  the  property  of  the  new  species  belongs 
to  the  owner  of  the  material;  but  if  the  new  species  cannot  be  restored  to 
its  original  form,  as  in  the  case  of  bread  made  from  corn  or  wine  from 
grapes,  the  property  of  the  new  species  belongs  to  the  workman.  In  order 
to  a  change  of  ownership,  the  change  in  the  materials  must  be  a  genuine  one, 
e.g.  the  threshing  of  corn,  or  the  dyeing  of  wool,  operates  no  transfer  of 
ownership  to  the  thresher  or  dyer.  The  better  opinion  is  that  the  acquisi- 
tion of  property  by  specificatio  was  independent  of  the  good  or  bad  faith  of 
the  sp)ecificans.     A  man  who  has  made  wine  out  of  grapes  is  owner  of  the 


SPECIFICATIOX.  ACQUISITION  OF  PrtOPEETY  BY        377 

wine  whether  he  took  the  grapes  clolo  malo  or  m  londfide,  i.e.  the  owner  of 
the  grapes  could  in  neither  case  vindicate  the  wine.  If,  however,  the 
specificans  took  the  grapes  dolo  inalo,  the  owner  of  the  grapes  could  bring 
against  him  an  actio  furti  or  condidio  furtum;  whereas,  if  the  specificans 
took  the  grapes  in  bond  fide,  he  Mas  liable  only  in  a  personal  action  to 
indemnify  the  former  owner  of  the  grapes  for  their  value,  upon  the  principle 
neminem  cum  clctrimcnto  alterius  locv.pletari. 

In  Scots  law  appropriation  by  specitication  is  recognised,  reparation 
being  always  made  to  the  party  who  loses  his  interest,  unless  the  presump- 
tion be  strong  enough  to  infer  that  the  workmanship  was  performed  animo 
donandi,  by  him  who  knew  that  the  materials  belonged  to  another  (Stair,  ii. 
1.  41).     See  Specificatiox. 

Specification,  Acquisition  of   Property  by.— The 

word  "  specification  "  is  the  English  equivalent  of  the  Latin  sjKcijicatio,  which, 
as  a  term  of  Eoman  law,  signifies  "  the  making  of  a  new  species  or  kind." 
In  Roman  law  and  Scots  law,  which  upon  this  point  has  been  directly 
borrowed  from  the  Eoman,  specijicatio  is,  under  certain  circumstances,  a 
mode  of  acquiring  property.  As  such  it  is  treated  by  the  institutional 
writers  as  a  subdivision  of  acccssio,  and  is  closely  analogous  to  commixtio 
and  confusio.    (See  Accession  ;  Confusion  ;  Co-mmixtion.) 

When  one  person  by  his  labour  produces  out  of  materials  belonging  to 
another  a  new  subject  or  species,  the  question  arises,  who,  apart  from  con- 
tract, is  the  proprietor  of  this  new  suliject  which  has  been  thus  brought 
into  existence  ?  Is  it  the  owner  of  the  original  materials  or  the  workman 
who  out  of  them  has  created  something  entirely  difierent  and  new  ?  Out 
of  grapes  belonging  to  A.,  B.  makes  wine.  Out  of  gold  belonging  to  A., 
B.  makes  a  cup.  Who  in  either  case  is  the  owner  of  the  wine  and  tlic  cup  ? 
Upon  this  point  a  famous  controversy  arose  between  the  Sabinians  and 
Proculeians,  the  former  upholding  the  claims  of  the  proprietor  of  the 
materials,  the  latter  the  claims  of  the  workman  who  had  transformed  them 
by  his  labour.  Tiie  rule  adopted  in  the  law  of  Scotland  is  the  media 
sententia  recommended  by  Justinian.  Where  the  new  species  can  be  again 
reduced  to  the  mass  or  matter  of  which  it  was  made,  e.ff.  a  cup  made  out  of 
bullion,  the  law  considers  the  original  subject  as  still  existing,  and  the  new 
one  continues  to  belong  to  the  proprietor  of  the  old ;  but  whore  the  new 
species  cannot  be  so  reduced,  e.f/.  wine  made  out  of  grapes,  there  is  no  room 
for  such  a.  fictio  juris,  and  the  maker  of  the  new  si)ecics  is  also  proprietor. 
In  the  former  case,  the  workman  has  a  claim  for  work  and  indemnity 
against  tlie  owner  in  quantum  lucratus;  in  the  latter,  the  owner  of  the 
materials  has  a  personal  claim  against  the  workman  for  tlu'ir  value. 
Erskine  points  out  that  this  mode  of  acijuisition  is  inadmissible  where 
the  new  species  made  l)y  one  person  is  united  to,  and  so  made  part  of,  an 
immoveable  subject  belonging  to  another.  Hence  a  liousc  built  l>y  C.  u])()n 
l.ind  belonging  to  A.  out  of  liricks  belonging  to  K,  does  not  belong  to  C.  or 
B.  by  specilication,  but  to  A.,  tlie  owner  of  tlie  land,  by  accession.  A  person 
guilty  of  fraudulent  conduct  cannot  avail  himself  of  the  jilea  of  Ri)ccilieation 
(Elchies,  "  liankrupt,"  No.  9  ;  Ilell,  Com.  i.  290).  The  .loctrino  of  specilica- 
tion  is  aj»itarcntly  also  apjilicable  t(»  those  oases  of  ronimixtion  and  confusion 
of  the  property  of  diHorent  persons  which  result  in  the  i)ro(l\iction  of  a  new 
species  which  cannot  again  be  resolved  into  its  former  elemcntH.  He  who 
made  the  mixture  is  the  owner.  (See.  however,  Commixtion  ;  Communion.) 
In  the  case  of  Wi/lic  cO  Lochrnd,  8  M.  So'J,  the  law  upon  (liis  suliject  was 
incidentally  touchc<l  upon.     While  recognising  the  traditional  rnles  about 


378  SPECIFICATION  AND  DILIGENCE 

specification,  Ld.  Pres.  Inglis  expressed  his  approval  of  the  equitable 
principle  of  communion,  for  cases  where  a  new  subject  of  property  is 
created  by  the  combination  of  materials  and  industry  contributed  by 
different  parties.  The  two  or  more  persons  who  had  contributed  to  the 
production  of  the  new  subject,  either  materials,  or  skill  and  labour,  or  both, 
should  hold  it  in  common  property,  in  such  shares  as  corresponded  to  the 
value  of  their  several  contributions.  While  not  entitled  to  follow  this 
philosophical  doctrine  to  its  just  results,  because  restrained  by  the  fixed 
rules  of  law  as  to  specificatio  and  confusio,  the  Court,  in  cases  which  did 
not  fall  very  clearly  into  any  known  category,  was  at  liberty  to  apply  this 
equitable  principle  "  without  inquiring  too  curiously  or  balancing  too  nicely 
to  which  of  several  categories  the  new  case  has  most  general  resemblance." 
In  actual  practice,  questions  of  this  nature  must  generally  depend  for  their 
solution  upon  the  interpretation  of  contract,  express  or  implied. 

[See  Stair,  bk.  ii.  tit.  1.  sec.  41 ;  Ersk.  bk.  ii.  tit.  1.  sec.  16 ;  Bell,  Com.  i. 
294;  Bell,  Prin.  s.  1298;  Justinian,  Inst.  bk.  ii.  tit.  1.  sec.  25.] 

Specification   and    Diligence   for   Recovery   of 

Writings. — To  recover  documents  whicli  are  required  by  a  litigant 
for  purposes  of  his  action,  from  those  in  whose  hands  they  may  happen 
to  be,  who  are  styled  havers,  and  who  may  be  third  parties  or  the  opposite 
party  in  the  case,  a  motion  must  be  made  for  Commission  and  Diligence. 
This  is  of  like  purpose  and  effect  as  the  English  motion  for  Discovery 
(Mackay,  Man.  241).  Early  provisions  regarding  it  are  set  forth  in  Act 
1672,  c.  16,  s.  25.  Before  the  motion  can  be  made,  an  action  must  be 
in  dependence :  the  English  suit  for  the  perpetuation  of  testimony  having 
no  counterpart  in  Scotland.  But  proof  has  been  allowed,  and  documents 
recovered,  in  an  undefended  declarator  of  pi'operty  brought  solely  to 
preserve  evidence  (Russd's  Trs.,  1865,  3  M.  856).  As  with  other  motions, 
forty-eight  hours'  notice  must  be  sent  to  the  opposite  party,  together  with  a 
copy  of  the  specification.  In  jury  causes,  thirty-six  hours'  notice  is 
sufficient  (A.  S.,  16th  Eeb.  1841,  s.  9).  A  copy  of  the  specification  must 
also  be  sent  to  the  judge's  clerk,  and  the  specification  itself  lodged  in 
process.  The  specification  is  a  writ  wliich  briefiy  sets  forth  what  docu- 
ments are  called  for  under  the  diligence.  Particular  documents  called 
for  are,  so  far  as  knowledge  permits,  described  by  reference  to  their  dates 
and  to  the  names  of  the  parties  to  them ;  and  general  classes  of  documents, 
in  such  terms  as  to  be  capable  of  identification.  The  names  of  the  persons 
to  be  cited  as  havers  are  not  set  forth ;  but  any  persons  reasonably 
believed  to  have  the  document  in  their  possession  may  be  cited  under  the 
diligence  (see  Mackay,  HTa7i.  242). 

Diligence  granted  in  all  Actions. 

Wliile  declaring  (s.  1)  that  it  shall  not  generally  be  competent  in  any 
cause  depending  before  the  Court  of  Session  to  grant  commission  to  take 
proof,  the  Evidence  (Scotland)  Act,  1866,  expressly  provides  (s.  2)  that 
"  it  shall  be  competent  to  the  judges  of  either  Division  of  the  Court 
or  to  the  Lord  Ordinary  to  grant  commission  to  any  person  competent  to 
take  and  report  in  writing  the  depositions  of  havers."  It  was,  however, 
enacted  (s.  6)  that  nothing  in  this  Act  contained  should  affect  the  Conjugal 
Eights  (Scotland)  Act ;  and  under  sec.  13  of  this  latter  statute  it  remained 
doubtful  whether  in  consistorial  causes,  and  where  the  haver  was  within  his 
jurisdiction,  the  Lord  Ordinary  had  power  to  grant  such  commission.  This 
power  is,  however,  expressly  conferred  by  the  Court  of  Session  Act,  186S, 


SrECIFICATION  AND  DILIGEXCE  379 

s.  100,  subs.  2,  and  accordingly  power  to  grant  Commission  and  Dili- 
gence now  extends  to  all  actions,  and  in  vacation  is  exercised  by  the 
Lord  Ordinary  on  the  Bills  (Court  of  Session  Act,  1868,  s.  93).  A 
reclaiming  note  from  an  Interlocutor  of  a  Lord  Ordinary  granting  this 
diligence  is  incompetent  unless  with  leave  of  the  Lord  Ordinary  {Sti'.ayf, 
1890,  17  E.  755),  and  in  practice  such  leave  is  not  readily  granted. 
In  jury  cases  application  is  to  be  made  after  issues  have  been  adjusted, 
and  the  specification,  etc.,  is  to  be  lodged  with  the  Clerk  of  Session  iu 
whose  office  the  cause  is  (A.  S.,  16th  Feb.  1841,  s.  9,  and  13  &  14  Yict. 
c.  36,  s.  37).  No  production  shall  be  allowed  to  be  used  at  such  trial 
unless  it  has  been  lodged  eight  days  before  the  date  of  hearing,  unless  by 
special  permission  of  the  Court,  which  will  be  granted  only  upon  satis- 
faction by  oath  of  party  that  such  production  could  not  be  lodged  in  time 
(A.  S.,  cit  s.  18).  In  arbitration  proceedings  the  arbiter,  being  a  "  private 
person  in  whom  the  law  has  not  vested  jurisdiction,"  cannot  compel 
havers  to  produce  documents  before  him  (Ersk.  iv.  3.  31).  But  at  the 
suit  either  of  the  arbiter  (Kcr,  Mor.  034)  or  of  a  party  to  the  arbitration 
{Sieveiison,  Mor.  634),  or,  as  is  customary,  of  such  party  with  concurrence 
of  the  arbiter  {Blaikks,  1851,  13  D.  1307,  and  1852,  14  D.  590),  the  Court 
v.ill  interpone  authority  to  the  appointment  of  commissioners  by  the 
arbiter,  and  grant  warrant  for  production  of  documents  before  them.  To 
obtain  this,  a  petition  is  presented  to  the  Court  or  to  the  Lord  Ordinary, 
but  is  not  competent  in  the  Bill  Chamber  {Harvey,  4  S.  809).  Ik'fore  such 
petition  can  be  presented,  the  arbiter's  approval  of  the  specification  must 
first  be  obtained  (Crichton,  15  Iv.  784).  When  havers  are  resident  iu  a 
different  county  {Gordon,  Mor.  634)  or  in  England  {Highland  Eicy  Co.,  1868, 

6  M.  896),  the  Court  will  refuse  such  petition  as  incompetent.  In  such 
cases  the  proper  course  is  to  apply  for  a  commission  to  take  tlie  depositions 
of  havers,  whose  attendance  in  the  latter  case  will  be  enforced  under  6  & 

7  Vict.  c.  82  {Blaihies,  1851,  13  D.  1307).  Should  a  haver  who  has  been 
duly  cited  in  an  arbitration  refuse  to  produce  tlie  document  called  for,  and 
persist  in  refusal  after  the  arbiter  has  overruled  his  objection,  one  of  the 
parties  may,  without  any  recommendation  of  the  arbiter,  present  a  summary 
petition  to  the  Sherilf  praying  him  to  ordain  the  haver  to  produce,  or 
failing  production  to  grant  warrant  for  imprisonment  {Blaikict,  1852, 
14  D.  590).  Tlio  Shcrilfs  course  of  action  will  proceed  upon  consideration 
of  the  merits  of  the  haver's  objection  {ih.). 

As  regards  proceedings  before  Church  Courts,  it  was  decided  in  Praihytcry 
of  Lews,  1874,  1  11.  888,  that  on  api)lication  by  a  recognised  judicature  of 
the  Established  Church  of  Scotland,  it  was  competent  for  the  SherilT  to 
enforce  attendance  on  the  citation  of  the  Churcli  Court.  A  fortiori  the 
Court  of  Session  has  such  power  (Mackay,  Manual,  115).  The  decision 
proceeded  on  reasoning  that  a  presbytery  of  such  Church  was  a  Court 
recognisf'd  by  the  law  of  the  land.  P.ut  Ld.  Ardniillan  was  further  of 
opinion  that  the  same  nid  should  be  given  even  to  the  voluntarily  consti- 
tuted jurisdiction  of  Churches  not  established. 

Uiligcnce  in  the  Shcriir  Court  is  granted  under  A.  S.,  10th  July  1839. 
To  recover  documents  on  which  the  applicant  foujuls  in  his  condescendence, 
it  is  granted  at  the  time  of  lodging  the  ])leailings  (s.  51).  If  a  jm-ty 
neglect  to  recover  at  this  stage,  recovery,  subject  to  the  Sheriirs  discretion, 
will  be  afterwards  allowed  only  on  conditions  (39  &  40  Vict.  c.  70,  s.  22). 
To  recover  documents  rerpiired  z'/i  moduvi  j>rohationi^,  ^WW'^quqq,  is  granted 
after  closing  of  the  record  (A.  S.,  cii.  ss.  G6,  70,  and  71).  Havers  resicling 
in  another  .sheriffdom  arc   cited   under   1  k  2  Vict.  c.  119,  s.   24.     The 


380  SPECIFICATION  AND  DILIGENCE 

Sheriff's  warrant  is  indorsed  by  the  Slieriff  Clerk  of  the  county  where  the 
warrant  is  to  operate. 

It  is  not  the  practice  of  the  Inner  House  to  patch  up  a  defective  speci- 
fication. Where  an  objection  is  sustained,  their  lordships  will  refuse  the 
diligence  and  remit  to  the  Lord  Ordinary  to  j^roceed ;  and  a  remodelled 
specification  may  be  presented  before  him  {Scott,  Simiison,  &  Wallis,  1897, 
24  K.  877,  per  Ld.  President). 

When  Diligence  will  be  Geanted. 

The  stage  at  which  diligence  is  usually  granted  is  after  the  record  has 
been  closed  and  proof  allowed.  But  subject  to  the  qualification  that  there 
must  be  an  action  in  dependence  (suj^ra),  the  motion  for  diligence  may  be 
competently  made  at  any  stage  of  the  cause :  before  the  record  is_  closed, 
in  the  course  of  an  adjourned  proof,  or  even  after  appeal  on  a  preHmiuary 
plea  to  the  House  of  Lords.  Thus  in  Baroness  Gray,  1874,  1  R.  1138, 
where  a  proof  had  been  adjourned  before  the  close  of  the  defender's 
evidence,  the  Court,  upon  a  report  by  the  Lord  Ordinary,  allowed  the 
defender  a  diligence  at  this  stage.  In  Forbes,  1857,  20  D.  287,  appeal  was 
taken  to  the  House  of  Lords  after  the  competency  of  the  action  had  been 
disposed  of  and  issues  adjusted  by  the  Inner  House.  It  was  held  that  the 
Court  was  not  by  the  appeal  precluded  from  granting  a  diligence  to  recover 
documents  which  should  be  in  process,  and  available  for  the  trial  in  the 
event  of  the  interlocutors  appealed  from  being  sustained,  and  the  cause 
remitted  for  further  procedure.  Before  closing  of  the  record,  diligence  will 
be  granted  only  on  cause  shown,  and  although  competently  moved  for,  is  to 
be  regarded  as  an  indulgence  {National  Exchange  Co.,  1849,  12  D.  249). 
As  to  documents  to  which  the  applicant  has  a  title  other  than  merely  as  a 
litigant,  see  infra.  The  reason  of  the  reluctance  shown  by  the  Court  to 
grant  diligence  at  this  stage  appears  to  be  twofold.  (1)  The  production  of 
such  documents  tends  to  encumber  the  record  and  create  delay  {M' Ilquahan, 
1850,  13  D.  403).  (2)  The  primary  purpose  of  granting  diligence  is  to 
enable  the  parties  not  to  table  a  case,  but  to  prove  the  case  tabled.  It  is 
granted  in  modum  iirohationis  {Macintosh,  1828,  6  S.  784).  "  To  allow  a 
party  to  probe  into  all  sorts  of  correspondence  to  see  if  he  can  find  out 
something  to  say,  is  a  fishing  diligence,  which  should  no  more  be  allowed 
than  to  grant  a  precognition  "  (per  Ld.  Glenlee).  But  if  the  applicant  knows 
his  case,  and  craves  the  diliuence  with  the  view,  not  of  ascertaining  whether 
he  have  a  ground  of  action,  but  of  making  his  statement  specific,  it  will 
probably  be  granted  {Gray,  1855,  18  D.  193).  The  decision  of  the  Lord 
Ordinary  will  not  lightly  be  interfered  with  {Mllquahan,  ut  sup.).  Both 
parties  should,  in  framing  their  averments,  be  put  so  far  as  possible  on  an 
equal  footing  {Maconochic,  1841,  3  D.  1261).  And  where  hardship  is  clearly 
involved  in  refusal  of  diligence,  later  practice  is  more  favourable  to  the 
application  {Marshall,  1882,  19  S.  L.  Pt.  696).  In  a  recent  case  the  pursuer 
was,  after  service,  but  before  calling  of  the  summons,  allowed  a  diligence 
to  recover  from  the  defender  an  agreement  on  which  his  action  was  founded, 
in  order  to  have  it  stamped  {Brady,  1896,  3  S.  L.  T.  509). 

Who  may  be  Commissioner. 

The  commission  is  usually  granted  to  advocates  or  law  agents.  In 
Macleod,  1856,  18  D.  778,  where  a  diligence  was  to  be  executed  in  Isla,  it 
was  stated  that  there  were  no  lawyers  in  the  island,  and  commission  was 
accordingly  granted  to  any  of  Her  Majesty's  J.P.'s,  and  also  nominatim  to 
a  Glasgow  professor.     When  the  diligence  is  to  be  executed  abroad,  com- 


SPECIFICATIOX  AND  DILIGEXCE  381 

mission  is  issued  to  lawyers,  consuls,  or  others  in  like  official  position ;  but 
persons  acquainted  witli  the  law  of  Scotland  will  be  preferred.  When  the 
documents  are  to  be  recovered  in  England,  an  advocate  may  be  sent  as 
commissioner,  and  a  fee  of  £G,  6s.  per  day  for  tliirteen  days  has  been 
allowed  {Tannctt,  JFalkcr,  &  Co.,  1874,  1  R  440).  In  Oitmers  of  the  Hilda, 
1885,  12  E.  547,  the  Court  sustained  the  Auditor  in  allowincr  against  the 
losing  party  a  fee  of  £10,  10s.  per  day  for  three  and  a  half  "^days  to  H.M. 
Consul  at  Port  Said  for  taking  deposition  of  one  witness.  In  this  case  also 
the  Court  sustained  the  Auditor  in  disallowing  the  expenses  of  a  law  a<^'-ent 
going  to  London  to  be  present  at  the  examination  of  havers ;  but  agents 
usually  attend,  though  where  both  the  Edinbuigli  and  Glasgow  a^cnt 
attended,  the  charges  of  one  only  were  allowed  (Alison,  1856,  fs  D.  Sol). 
That  case  being  a  very  important  one  as  regarded  character,  however,  fees 
of  one  counsel  were  allowed.  So  also  in  Ecnton,  1846,  8  D.  1085,  an 
action  of  reduction  on  ground  of  fraud, — "a  case  in  which  there  might 
have  been  great  nicety  in  the  examination  of  a  haver,  and  many  important 
points  to  be  attended  to  for  his  interest." 

The  Lord  Ordinary  may  himself  take  the  depositions  of  havers,  and 
instead  of  moving  for  a  diligence,  witnesses  may  be  cited  to  produce 
documents  at  the  proof.  Such  examination  by  the  Lord  Ordinary  is^ 
however,  discountenanced  by  the  Court,  as  being  likely  to  occupy  too  much 
time.  But  "if  a  witness  is  in  the  box  under  examination,  and  it  is 
necessary,  to  make  tlie  case  clear,  that  certain  documents  should  be 
produced,  he  is  examined  as  a  haver  to  produce  these  documents  "  (see- 
Opinions  in  Baroness  Gray,  1874,  1  U.  1138).  In  ]iroof  taken  before  the 
Lord  Ordinary,  there  is  no  provision,  as  there  is  in  jury  causes  {vide  supra),. 
that  productions  must  be  lodged  eight  days  before  the  trial.  Styles  for  the 
use  of  commissioners  are  collected  in  Dickson,  Appendix  I. 

What  Documents  may  be  Eecoveijed. 

In  considering  what  documents  can  be  recovered  under  a  diligence,  a 
distinction  is  to  be  noted  between  documents  to  which  the  apjilicant  can 
qualify  a  right,  and  tliose  to  the  exhibition  of  which  he  is  entitled  only  as 
a  litigant,  i.e.  for  the  purpose  of  proving  his  case.  The  former  lie  can 
recover  at  any  time,  independent  of  proceedings  pending  in  Court  {M'Kirdy, 
2  D.  949),  or  of  the  stage  of  an  action  depending  {Provan,  1830,  8 
S.  797 ;  Paton,  infra).  So  also  with  documents  in  which  iho  aj)plicant  has 
a  joint  interest  and  the  right  of  custody  (Dickson,  1368  and  1378).  Applica- 
tion may  be  made  l>y  summary  petition  to  the  Sheriff  (J/'A't/v///,  ut  supra). 
But  if  there  be  an  action  in  dependence,  a]>]»licatiun  should  be  made  liy 
motion  for  diligence  in  the  cause  (JH'Clure,  1827,  5  S.  229).  The  api)licant 
may  be  required  to  qualify  his  interest  in  the  document  (Paton,  1668,  Mor. 
3963;  Crauford,  1626,  Mor.  .",960).  But  a  call  in  general  terms  will  be 
allowed  (Ministers  of  Juliuhurf/Ii,  1763,  I^ror.  3969). 

Documents,  the  title  or  joint-title  to  which  is  not  in  tlic  ajqJicant,  can 
be  recovered  by  motion  for  diligence  in  a  depending  process.  The  primavy 
purpose  for  wiiich  recovery  is  anov,-('d  is  that  the  documents  may  be  made 
available  in  modmn  prvhationis  (.M'IntosJi,  1828,  6  S.  781).  The  fir.st 
requisite  of  such  documents,  accordingly,  is  that  they  be  capable  of  being 
used  as  evidence.  The  Court  requires  to  bo  satisfied  of  the  reasonable 
probability  of  tliis  before  granting  diligence  (Livingstone,  1860,  22  D.  1333; 
Porter,  1867,  5  M.  53:'));  and  on  this  ground  refused  dib'gciu'e  (1)  in  an 
action  of  reduction  of  a  mortis  causa  settlement  on  ground  of  facility  and 
circumvention,  to  recover  a  diary  containing  entries  as  to  the  testator's. 


382  SPECIFICATION  AND  DILIGENCE 

state  of  mind  and  health  under  the  hand  of  his  body-servant,  who  was  alive 
{MNcill,  1886,  7  K.  574;  but  contrast  Henderson,  1892,  20  E.  95);  (2)  to 
recover  the  writ  of  a  partner  in  a  question  that  could  only  be  proved  by 
writ  of  the  firm  {Catto,  Thomson,  &  Co.,  1867,  6  M.  54);  (3)  where  it 
appeared  that  the  purpose  of  the  call  was  that  the  documents  might  be 
used  in  taking  precognitions  or  in  cross-examining  witnesses  (per  Inglis, 
Ld.  J.-Cl.,  in  Livinrjstone,  supra).  And  as  the  amendment  to  be  allowed 
under  the  Court  of  Session  Act,  1868,  is  such  as  can  be  stated  at  the  bar 
and  made  forthwith,  the  party  proposing  to  amend  will  not  be  allowed  a 
diligence  to  enable  him  to  make  his  statement  specific  (I%omso/i,  1869,  7  M. 

687). 

But  the  rule  is  that  the  Court  do  not  determine  beforehand  whether 
the  writings  to  be  recovered  will  be  admissible  as  evidence  in  the  cause 
{Livingstone,  supra).  Notwithstanding  that  diligence  has  been  granted  to 
recover  a  document,  parties  are  not  precluded  from  taking  objections  to  its 
admissibility  at  the  proof.  The  right  to  recover  may  be  clear,  but  the  use  to 
which  the  document  is  to  be  put  may  raise  a  question  (per  Hope,  Ld.  J.-CL, 
in  Nolle,  1843,  5  D.  723).  Such  objection  should  be  taken  when  the  document 
is  first  produced  in  the  proof,  not  when  it  is  formally  tendered  on  closing 
■^roo^  {Rolcrtson,  1848,  11  D.  353).  Contrary  to  the  general  rule,  the  Court 
may,  however,  decide  the  question  of  admissibility  at  the  time  of  granting 
the  diligence  {Brash,  1845,  7  D.  539).  If  this  has  been  done,  any  objection 
should  be  restated  at  the  proof  in  order  to  keep  matters  open  in  the  event 
of  an  appeal  (per  Hope,  Ld.  J.-CL,  in  M'Coivan,  1853,  15  D.  496). 

The  purpose  for  which  the  document  is  wanted  is  in  practice  stated  at 
the  bar,  but  in  Kennedy,  1830,  8  S.  1020,  a  condescendence  was  ordered 
thereon.  In  Silver,  1894,  21  E.  416,  the  Court  refused  a  call  as  being 
excessive,  without  determining  whether  or  not  a  more  limited  application 
would  be  granted. 

The  call  should  be  specific  in  its  terms ;  for  if  a  general  description  were 
sufficient,  one  might,  upon  irrelevant  or  vague  allegations,  compel  his 
adversary  to  expose  to  him  his  whole  title  deeds,  with  all  their  defects 
{Seot,  1735,  Mor.  3965).  But  nemo  tcnetur  edere  instrumenta  contra  se  (Ersk. 
iv.  1.  52).  In  an  old  case  {Foggo,  1839,  1  D.  1138)  the  Court  allowed  a 
diligence  calling  for  "  generally  all  documents  tending  to  instruct  the 
averments  and  denials  of  the  pursuer  in  the  case."  But  this  decision 
was  held  to  have  proceeded  on  special  grounds,  and  not  to  establish  a 
general  rule  (Morton,  1844,  6  D.  1105,  where  a  call  in  identical  terms  was 
refused.  See  also  Fattinson,  1844,  6  D.  944,  where  a  general  call  was 
refused  on  the  ground  that  the  defender  knew  of  no  evidence  in  support 
of  his  averments,  and  only  desired  a  fishing  search  among  the  pursuer's 
papers).  In  cases  of  fraud,  however,  the  applicant  wall  be  found  entitled 
to  a  wide  diligence,  and  the  Court  W\\\  allow  a  somewhat  general  call, 
comprehending  even  documents  which  in  general  would  be  protected  as 
being  confidential  {MCoioan,  1852,  15  D.  229;  Tidloeh,  1858,  20  D.  1319; 
Assets  Co.  Ltd.,  1897,  24  E.  418).  So  also  in  cases  where  a  party  is  sued 
for  costs  as  having  been  the  true  doininus  litis  {Fraser,  1895,  3  S.  L.  T.  333). 
Nor  will  diligence  be  granted  merely  on  the  ground  that  the  applicant  has 
been  able  to  condescend,  by  date  and  description,  upon  documents  of  the  con- 
tents of  which  he  is  ignorant,  and  which  he  calls  for  on  supposition  only  that 
they  may  chance  to  contain  something  unfavourable  to  his  adversary's  claim 
(see  Smith  &  Knight  v,  F.  of  Airly,  11  March  1815,  not  reported,  but  referred 
to  in  Tait,  178).  After  averments  have  been  admitted  to  probation,  these 
averments  constitute  the  measure  which  determines  what  dilifrcnco  should 

O 


SPECIFICATION  AND  DILIGENCE  383 

be  granted ;  nor  will  the  Court  be  deterred  from  allowing  a  specification  by 
doubt  as  to  the  relevancy  of  the  averments  {Dulc  of  Hamilton's  Trs.,  1897, 
2-i  E.  294).  But  where  the  Lord  Ordinary  had  by  interlocutor  allowed  the 
pursuer  a  proof  of  his  averments  and  to  the  defender  a  conjunct  probation, 
the  defender  was  refused  dihgence  to  recover  documents  which  could  be 
evidence  only  of  the  substantive  case  tabled  in  defence,  and  could  be  of  no 
avail  for  rebutting  the  case  made  for  the  pursuer  (Scott,  Simpson  &  Wallis 
1897,  2-1  E.  877). 

Besides  being  excluded  from  the  operation  of  diligence  when  manifestly 
incapable  of  being  adduced  as  evidence  (supra),  documents  may  also  be 
protected  from  recovery  on  the  ground  of  Confidentiahty.  See  Cox- 
FIDEXTIAL  CO-MMUXiCATioxs.  Documents  that  are  in  use  to  be  issued,  are 
protected  imtil  the  final  act  of  issue.  So  letters  not  posted  in  Livingstone, 
1831,  9  S.  757,  and  defences  not  lodged  in  Gavin,  1830,  9  S.  213.  In 
Ferricr,  1827,  5  S.  332,  private  estate  plans  were  protected,  but  judicial 
plans  were  allowed  to  be  recovered.  Plans  of  coal  workings  were  recovered 
in  Warh,  1855,  17  D.  526. 

Business-books,  including  the  books  of  third  parties,  will  be  recovered 
when  bearing  directly  on  the  matter  at  issue  in  a  case.     Thus  in  a  declar- 
ation and  interdict  brought  to  prevent  paper-makers  polluting  a  stream, 
diligence  was  granted  to  recover  books   showing   the   materials   used  by 
them   in   their  works;  but   refused   to  recover  books   showing   the  sums 
expended  on  the  buildings,  with  the  view  of   impressing  the  jury  with 
their  increase  in  value,  and  remarked  that  this  could  be  proved  by  putting 
defenders  in  the  box  (Dulx  of  Buccleuch,  1866,  4  M.  475).      In  liohcrt- 
son,  1875,  2   E.    935,  however,  where  the  question   at   issue   Mas   upon 
what  terms  and  prestations  the  pursuer  had  become  tenant  of   a  farm, 
diligence  was  allowed  to  recover  the  pursuer's  books  in  order  to  ascer- 
tain  the   true  value  of   the   farm,  as  this  "  would    materially  assist  the 
jury  in  coming  to  a  just  decision  between  the  parties."     The  general  rule 
applies,  tliat  to  be  available  for  production  books  must  be  capable  of  being 
used  as  evidence.     On   this  ground  the   diligence  was  refused   in  Steven, 
1875,  2  E.  292,  and  allowed  in  Porter,  1867,  5  M.  533.     The  latter  was  an 
action  on  a  policy  of  fire  insurance,  where  the  insured's  own  books  had  been 
destroyed.     He  was  allowed  to  recover  the  books  of  third  parties  who  had 
sold  goods  for  him,  with  a  view  to  proving  the  extent  of  liis  sales.     In  an 
action  for  damages  for  slander  by  a  Birmingham  firm  against  the  publishers 
of  a  Glasgow  newspaper,  access  to  the  defenders'  books,  in  order  to  prove 
the  extent  of  the  paper's  circulation  in  liirmingliam,  was  refused  (British 
Puhlishinf/  Co.  Ltd.,  1892,  19  E.  1008).     In  Johnstone,  1892,  20  E.  222,  whore 
the  pursuer  in  an  action  for  personal  injury  averred  that  his  business  had 
suffered  in  consequence,  the  Court  allowed  the  defenders  access  to  his  business- 
books  and  recovery  of  his  income-tax  receipts  for  three  years,  distinguishing 
from  Craifj,  1888,  15  E.  808,  where  a  similar  diligence  covering  u  period 
of  four  years  was  refused.     In  an  action  for  breach  of  promise  of  marriage, 
diligence  to  recover   the   defender's   business-books   and   bank-books  was 
refused,  but  the  Court  gave  opposite  opinions  as  to  the  general  competency 
of  the  motion  in  such  circumstances  (Somcrville,  1896,  23  E.  576).     In  an 
action  for  reduction  of  a  will  on  the  ground  of  mental  inca])acity,  diligence 
was  granted  to  recover  from  the  books  of  the  testator's  medical  attendants 
all  excerpts  tending  to  throw  light  on  his  state  of  mental  and  bodily  health 
(Frasrr,  1897  (0.  H.)  4  S.  L.  T.  326).     Where  great  inconvenience  would 
result  from  production  of  the  books  themselves,  and  where  certain  entries 
only  conie  under  the  call,  the  proper  course  is  to  have  excerpts  taken  at  the 


384  SrECIFICATION  AND  DILIGENCE 

sight  of  the  commissioner  (Dickson,  1318  ;  K  B.  Btnj.  Co.,  1893,  20  R  397). 
Third  parties  from  whom  production  is  asked  havini^  no  locus  standi  in  the 
action,  of  course  cannot  resist  the  granting  of  the  diligence.  But  they  may 
raise  any  objection  open  to  them  before  the  commissioner  {N.  B.  Bv:y.  Co., 

siqjra). 

Diligence  will  not  he  granted  to  recover  puLlic  documents  in  a  foreign 
country^  such  as  books  of  record  and  instruments  in  public  custody.  Tiie 
proper  course  is  to  call  the  registrar  or  custodier,  and  examine  him  as  a 
witness  to  entries  {Maitland,  1885,  12  K.  899).  Nor  will  the  Court  grant 
diligence  to  recover  writings  lodged  in  the  offices  of  the  Court  of  Chancery 
in  Etioland,  but  will  grant  a  recommendation  to  the  authorities  there  to 
allow  access  {Bichardson,  1850,  22  Sc.  Jur.  431).  Written  information  given 
by  the  defender  to  the  procurator-fiscal  was  recovered  by  the  pursuer  of  an 
action  for  damages  in  respect  of  a  malicious  charge  of  perjury.  The  Lord 
Advocate  declined  to  state  that  damage  to  the  public  service  could  arise 
throuo-h  the  diligence  being  granted,  and  the  defender  was  held  not  to  be 
entitled  himself  to  plead  this  {Henderson,  1853,  15  D.  292).  Confidential 
communications  by  an  officer  in  the  public  service  to  his  superior  officer  in 
the  same  department  were  protected  in  Hastings,  1890,  18  E.  244;  but  in 
Halcroio,  1892,  20  E.  216,  a  report  by  the  procurator-fiscal  to  the  County 
Council  was  recovered,  the  Court  ordering  the  conmiissioner  to  seal  up  the 
document  and  transmit  it,  to  lie  in  retentis  and  await  the  orders  of  the  Court. 
In  Artlmr,  1895,  22  R.  417,  the  Lord  Advocate  declined  to  produce,  on  the 
ground  that  to  do  so  would  prejudice  the  public  service,  and  tlie  Court 
refused  the  diligence.  A  haver  cannot  be  compelled  to  produce  a 
document  that  would  convict  him  of  crime  (Mackay,  Manual,  248).  But 
that  discreditable  matter  will  be  disclosed  is  not  a  sufficient  excuse  (see 
Don,  1848,  10  D.  104G,  where  the  documents  were  ordered  to  be  produced 
to  the  commissioner,  and  lodged  in  process  or  not  at  his  discretion).  The 
statutory  declaration  of  a  bankrupt  was  recovered  in  an  action  of  reduction 
of  his  assignation  granted  before  sequestration  at  the  instance  of  the  trustee 
(Emdie,  1862,  1  M.  209).  The  Court  will  not  order  production  of  documents 
in  the  keeping  of  the  Lord  Clerk  liegister,  but  extracts  will  suffice  {Maclean, 
1861,  23  D.  1262).  Third  parties  are  entitled  to  refuse  to  produce  their 
titles':  if  the  applicant  has  a  legal  right  to  them,  he  may  raise  an  action  of 
exhibition  {Fisher,  1827,  6  S.  330).  Diligence  to  recover  models  of  a  ship 
was  refused  {Her  Majesty's  Advocate,  1864,  2  M.  1032).  Where  there  is 
reason  to  fear  that  documents  may  be  tampered  with  before  they  can  bo 
called  for  by  diligence  in  course  of  process,  the  Court  may  on  summary 
application  take  ineasures  for  their  preservation  {Orrok,  1847,  10  D.  35). 

Procedure  in  Commissions  to  kecover  Documents. 
When  a  commission  has  been  granted  to  recover  documents,  the  agents 
of  the  party  who  has  obtained  the  commission  send  the  commissioner  a 
copy  of  the  interlocutor  granting  the  diligence,  together  with  a  copy  of  the 
specification  and  a  copy  of  the  record  in  the  case,  and  ask  him  to  fix  a  diet 
for  the  examination  of  the  havers.  Prior  to  the  Court  of  Session  Act  of 
1850  it  was  necessary  to  have  a  formal  extract  of  the  interlocutor  granting 
diligence,  but  sec.  25  of  that  Act  (13  &  14  A-ict.  c.  36)  provided  that  a 
copy  of  the  interlocutor,  certified  by  the  Clerk  to  the  Process  or  his  assistant, 
should  have  the  same  effect  as  a  formal  extract.  The  copy  bears  a  stamp 
for  two  shillings  and  sixpence.  In  'a  commission  to  examine  witnesses  it  is 
necessary  to  state  the  names  of  the  persons  to  be  examined,  but  the 
practice  as  to  havers  is  different.     No  names  are  given,  and  the  person  who 


SPECIFICATION  AND  DILIGENCE  385 

has  obtained  the  diligence  is  entitled  to  cite  and  examine  any  person  whom 
he  has  reasonable  grounds  to  suppose  has  the  documents,  or  any  of  them, 
in  his  possession. 

When  the  date  has  been  fixed  for  the  examination,  the  agent  cites  the 
havers  to  appear,  which  they  are  bound  to  do.  If  they  fail  to  obey  the 
citation,  letters  of  second  diligence  will  be  granted  against  the  haver. 
Such  letters  contain  a  warrant  to  apprehend  the  haver  and  put  him  in 
prison  till  he  finds  security  to  appear  and  depone.  Such  letters  are  granted 
by  the  Court  or  Lord  Ordinary  who  granted  the  diligence  {National 
Exchange  Company,  1858,  20  D.  837).  It  is  stated  that  where  there  is 
reason  to  presume  that  a  haver  will  not  appear,  a  first  and  second  diligence 
will  be  granted  at  the  same  time  (Shand's  Practice,  372).  By  G  &  7  Vict. 
c.  82,  s.  5,  provision  is  made  for  compelling  the  attendance  of  witnesses 
and  production  of  documents  before  commissions  to  take  evidence  issued 
by  Courts  in  one  part  of  the  LTnited  Kingdom,  to  be  executed  in  another 
part.  This  is  done  by  application  to  the  Court  of  the  part  of  the  United 
Kingdom  in  which  the  commission  is  to  be  executed,  which  Court  will  issue 
an  order  commanding  attendance.  Provision  is  made  for  the  punishment 
of  persons  refusing  to  obey  the  order  of  the  Covu-t  (s.  6),  but  no  person  can 
be  compelled  to  attend  before  a  commissioner  unless  he  is  offered  conduct 
money  and  payment  of  expenses  (s.  7). 

See  also  the  provisions  of  17  &  18  Vict.  c.  34.  The  haver  is  cited  to 
attend  and  to  bring  with  him  the  documents  M-hich  he  is  called  on  to 
produce.  A  copy  of  the  specification,  or  the  part  of  it  with  which  he  is 
concerned,  is  usually  sent  to  liim. 

The  duties  of  commissioners  were  laid  down  in  recommendations 
contained  in  an  Act  of  Sederunt  of  11th  March  1800.  The  Act  applies  to 
commissions  for  the  recovery  of  documents.  It  is  quoted,  so  far  as  still  of 
use,  in  article  on  Co.mmission,  Phoof  by. 

The  commissioner,  either  at  the  diet  or  before  it,  administers  the  oath 
defidcli  to  the  clerk  whom  he  has  appointed.  The  haver  is  then  sworn  as 
a  witness  in  ordinary  form,  and  is  then  examined  by  the  agent  or  counsel 
for  the  party  who  has  obtained  the  diligence.  As  to  what  {[uestions  may 
f)e  asked  of  havers,  an  Act  of  Sederunt  was  passed  on  22nd  February  1G88 
in  the  following  terms : — "  The  Lords  of  Session  considering  the  incon- 
veniences of  His  ^Majesties  subjects,  by  defenders  called  in  exhibitionos  uv 
incidents  for  exhibition  a  jtroduction  of  wrytes,  their  deponcing  only  in 
generall  terrnes,  That  they  neither  have,  nor  had  the  wrytes  since  the 
citation,  or  fraudfully  has  put  the  same  away  at  any  time;  therefor  they 
ordain.  That  in  all  time  comcing,  parties  shall  be  obleidged  to  answer  to 
fill  speciall  pertenent  interrogators,  in  relation  to  their  haveing  of  the 
wrytes,  or  putting  the  same  away,  or  as  to  their  knowledge  and  suspicion, 
by  whom  the  samen  were  taken  away,  or  where  they  presently  aio,  that 
the  pursuar  may  thereby  make  discovery,  and  n^covcr  the  same:  Ditdaring 
always,  that  upon  advyscing  of  the  defender's  oath,  they  shall  not  be 
otherways  decerned  against,  as  havers  of  the  saids  wrytes,  unless  it  be 
found,  that  they  had  the  same  since  the  citation,  or  fraudfully  jiut  them 
away  at  any  time." 

In  modern  practice  the  geneial  nd(i  is  that  the  iigent  asks  llie  haver 
what  documents  ho  lias  to  produce  under  each  artichi  of  the  Hitiicilieation. 
The  questions  usually  ]>ut  are:  ifave  you  the  documents  called  for? 
Tfave  you  had  them  since  the  date  of  citation  ?  Have  you  ever  had  them  ? 
Have  you  \n\i  them  away  or  destroyed  them  ?  and  if  so:  Wiien.and  \\hero, 
and  why  ?     Do  you  know  or  suspect  where  the  documents  are  now?     Do 

8.  E.— VOL.  XI.  25 


386  SPECIFICATION  AND  DILIGENCE 

you  know  who  took  the  documents  away  ?  It  has  been  held  incompetent 
to  ask  a  haver  whether  he  destroyed  a  document  under  instructions  from 
anyone,  and  also  whether  he  knew  who  had  prepared  the  document  which 
had  been  destroyed ;  but,  on  the  other  hand,  the  haver  was  allowed  to  be 
asked  in  three  distinct  questions:  When,  where,  and  why  he  destroyed  the 
document?  {Cullcn,  1863,  1  M.  284).  No  questions  as  to  the  contents  of 
the  documents  are  allowed,  nor  questions  as  to  the  merits  of  the  cause. 
The  questions  are  strictly  limited  to  those  which  relate  to  the  recovery  of 
the  writing. 

The  evidence  of  the  haver  is  taken  down  in  writing,  and,  at  the  close 
of  the  examination,  is  read  over  to  the  haver  and  signed  by  him,  and  also 
by  the  commissioner  and  his  clerk ;  but  of  consent  of  parties  the  evidence 
may  be  taken  in  shorthand,  and  the  signature  of  the  haver  may  be 
dispensed  with.  If  the  documents  produced  are  not  numerous,  a  short 
description  of  them  is  usually  given  in  the  deposition ;  but  where  a  large 
number  of  documents  are  produced,  tlie  ordinary  course  is  to  state  in  the 
deposition  the  number  of  documents,  conform  to  an  inventory  produced. 
The  inventory  is  docqueted  by  the  haver,  the  commissioner,  and  the  clerk. 
The  documents  themselves  are  also  usually  docqueted  as  relative  to  the 
deposition  (Shand's  Practice,  372).  This  need  not  be  done  if  the  documents 
would  be  injured  by  such  marking;  and  in  modern  practice  the  documents 
produced  are  not  as  a  rule  docqueted  by  the  commissioner.  The  writings 
require  to  be  specified  in  the  deposition  or  the  inventory,  so  as  to  render 
it  easy  to  identify  them. 

A  haver  is  bound  to  produce  to  the  commissioners  the  documents  called 
for.  He  cannot  refuse  to  produce  them  on  the  ground  that  they  have  no 
bearing  on  the  C[uestion  at  issue.  He  may,  however,  plead  confidentiality. 
Although  the  Court  will  not  grant  a  diligence  for  the  recovery  of  docu- 
ments which  are  obviously  confidential,  yet  there  are  many  cases  M-here 
the  question  of  confidentiality  does  not  arise  when  the  diligence  is  granted 
and  has  to  be  decided  by  the  commissioner.  Thus  a  haver  who  is  not  a 
party  to  the  case  does  not  appear  when  the  diligence  is  granted.  The 
procedure  when  a  haver  pleads  that  a  document  is  confidential  is  that, 
instead  of  producing  it  to  the  party  who  has  obtained  the  diligence,  he 
exhibits  it  to  the  commissioner,  who  examines  it  and  decides  whether  it  is 
confidential.  If  an  appeal  is  taken  or  intimated  from  the  commissioner's 
decision,  his  duty  is  to  seal  the  document  up,  and  allow  the  matter  to  be 
decided  by  the  Court  when  the  appeal  is  heard  (see  Munro,  1858,  21  D.  106). 
It  is  the  duty  of  the  commissioner  to  apply  his  mind  to  decide  the  question 
of  confidentiality.  Where  a  commissioner  had  not  decided  the  question, 
but  had  sealed  up  the  document  and  reported  the  case  to  the  Lord  Ordinary, 
his  Lordship  remitted  to  the  commissioner  to  state  on  what  grounds  he 
declined  to  deal  with  the  question  of  confidentiality  {Stcicart,  Govan,  &  Co., 
1897,  5  S.  L.  T.  226). 

Diligence  is  frequently  granted  for  the  production  of  books  or 
documents,  that  excerpts  may  be  taken  therefrom,  on  the  sight  of  the 
commissioner,  of  all  entries  relative  to  a  certain  matter.  In  such  a  case 
the  party  who  has  obtained  the  diligence  is  not  entitled  of  right  to  see  the 
books,  and  can  only  do  so  with  consent  of  the  haver;  nor  is  the  haver 
obliged  liimself  to  make  excerpts  of  the  relevant  matter  in  the  books 
produced ;  nor  is  the  party  seeking  the  recovery  bound  to  acce]3t  excerpts 
prepared  by  the  haver.  Failing  an  agreement  between  parties,  the  books 
are  exhibited  to  the  commissioner,  who  goes  over  them  and  directs  his 
clerk  what  passages  are  to  be  excerpted,  and  afterwards   compares  the 


SPEI  EMPTIO  387 

excerpts  with  the  originals.  In  most  cases  where  books  are  to  be  produced, 
the  dihgence  is  limited  by  putting  the  words,  "  that  excerpts  may  be  taken 
therefrom  at  the  sight  of  the  commissioner  " ;  but  if  these  words  are  omitted, 
it  does  not  follow  that  in  all  cases  the  haver  is  bound  to  hand  over  his 
books  to  be  inspected  by  the  other  side.  He  may  state  that  his  books 
contain  other  matters  not  connected  with  the  matter  in  dispute,  and  which 
are  of  a  private  nature ;  and  if  so,  the  proper  course  is  for  the  commissioner 
to  make  excerpts,  and  not  allow  the  opposite  party  to  see  parts  of  the 
haver's  books  in  which  they  have  no  proper  interest.  There  is  no  reported 
decision  on  this  matter,  but  the  question  is  one  which  is  often  argued  before 
commissioners,  and  in  one  case  it  M-as  held  by  a  Lord  Ordinary  that  the 
proper  course  was  that  a  commissioner  should  rule  excerpts  from  certain 
books,  even  though  the  diligence  had  been  granted  without  anything  being 
said  about  excerpts. 

Spei  Cmptio,  or  spci  venditio,  is  the  sale  of  an  expectancy 
dependent  upon  mere  chance,  such  as  the  pearls  that  may  be  found  in  a 
catch  of  oysters  already  landed,  or  the  minerals  that  shall  be  taken  from 
a  mine  to  be  opened.  (Benjamin,  Sale,  4th  ed.,  p.  87,  notes  that  the 
stock  instance  given  in  the  Digest,  xviii.  1.  8.  l,xix.  1.  11.  18,  and  xix.  1.  12, 
of  the  purchase  from  a  fisherman  of  the  fish  to  be  caught  in  a  cast  of  his 
net  is  rather  a  hire  of  his  materials  and  labour,  because  the  fish  are  res 
nullius  at  the  date  of  the  contract.)  Pompouius  {Dig.  xviii.  1,  8.  1)  treats 
spei  emptio  as  an  instance  of  a  sale  concluded  without  any  subject  sold 
{sine  re),  but  the  better  view  is  that  the  chance  {cdca)  is  the  true  equivalent 
(res)  for  the  price  paid.  The  expectation  may  never  be  realised,  or  the 
results  may  be  less  than  were  anticipated  or  greatly  in  excess  ;  but  even  if 
the  chance  turns  out  to  be  quite  valueless,  it  is  held  to  have  had  a  money 
value  at  the  time  when  the  sale  was  concluded ;  and  whereas  the  obligation 
of  the  seller  is  conditional  upon  the  expectation  being  in  some  degree  realised, 
the  buyer  is  bound  absolutely  under  the  contract  to  pay  the  price  in  any 
case  {Dig.  xviii.  1.  8.  1),  provided,  of  course,  that  the  failure  of  the 
speculation  was  not  due  to  fraud  on  the  seller's  part  {Dig.  xix.  1.  12,  and 
1.  17.  161). 

It  followed,  therefore,  in  the  civil  law  that  the  seller  could  not  rescind 
the  sale  on  the  ground  of  inadequacy  of  price  {Iccsio  enormia)  even  tliougli 
the  buyer's  profits  turned  out  to  be  worth  more  than  double  the  purchase 
money,  for  in  the  absence  of  fraud  it  was  impossible  to  rebut  tlie  presumption 
that  the  seller  got  wliat  he  thought  the  chance  was  worth  at  tlic  date  of  the 
contract:  conversely,  tlie  disappointed  purcliaser  of  a  sjks  could  not  sue 
by  the  actio  rcdliibitoria  for  rescission  of  tlie  contract,  nor  by  the  actio 
quanti  minoris  for  abatement  of  the  price  on  the  ground  of  undisclosed 
defects. 

Spei  cmptio  is  to  be  distinguished  from  a  somewhat  different  form  of  the 
contract,  namely,  cmptio  rci  spcrata-,  instances  of  which  are  the  sale  of  the 
lambs  to  be  born  in  a  particular  Hock  during  tlic  following  spring,  or  next 
season's  crop  on  a  certain  farm  or  vineyard.  Tliesc  cases  are,  in  fact,  the 
sale  of  future  things  conditionally  on  tlicir  foming  into  existence  in  the 
ordinary  course  of  nature ;  the  specuhition  extends  to  cover  not  the 
existence  but  only  the  quantity  and  (|ualities  of  the  expected  produce.  If 
nothing  at  all  is  forthcoming,  the  sale  is  rescinded ;  but  if  there  is  some 
produce  realised,  the  purchase  money  must  be  paid  in  fuH.  [It  miglit  be 
inferred  from  one  passage  in  the  Digest  (xviii.  1.  .'JO.  \)  tliat  tlie  buyer  takes 
tlie  risk  of  quality,  but  that  the  purchase  money  varies  with  the  amount  of 


388  SPEI  ExMPTIO 

the  actual  produce.     Mommsen,  however,  and  other  editors  think  that  the 
text  is  corrupt.] 

It  was  always  a  question  of  construction  and  sometimes  a  matter  of 
difficulty  to  decide  which  of  the  two  forms  of  the  contract  was  intended  by 
the  parties.  If  the  subject  was  a  matter  of  pure  chance,  spei  emptio  was 
presumed ;  whereas  if  it  had  (to  use  the  modern  expression)  a  '|  potential 
existence,"  the  presumption  was  for  cmp)tio  rei  speratm ;  but  in  either  case 
the  presumption  might  be  rebutted  by  evidence  of  a  contrary  intention. 

Two  forms  of  contingent  sale  were  forbidden  by  the  civil  law.  (1) 
Emptio  fugce,  the  purchase  of  a  runaway  slave,,  the  purchaser  taking  the 
risk  of  recapture,  was  forbidden  as  contrary  to  public  policy  {Dig.  xlviii. 
15.  2).  (2)  A  sale  of  the  inheritance  of  a  living  third  person  was  void, 
because  it  was  in  the  eye  of  the  law  the  sale  of  a  non-existent  subject,  and 
not  of  a  chance  {Dig.  xviii.  4.  1,  and  xviii.  4.  7).  Justinian  permitted  it, 
provided  that  the  presumed  testator  consented,  but  he  was  not  thereby 
bound  to  leave  the  inheritance  to  the  vendor  {Cod.  ii.  3.  30). 

[Mackintosh,  The  Roman  Laiu  of  Sale,  pp.  24  seq.,  72,  83,  167 ;  Moyle, 
Cont7'act  of  Sale  i7i  the  Civil  Law,  Tp^.  30  seq.,  ISQ.] 

Spei  emytio  is  recognised  in  our  common  law.  Erskine  {Inst.  iii.  3.  3) 
says  :  "  Whatever  falls  under  commerce  may  be  the  subject  of  sale,  and  even 
things  not  yet  existing,  but  which  are  only  in  hope,  as  the  draught  of  a  net, 
or  the  hope  of  a  succession."  There  is  very  little  case  law  on  the  subject 
either  here  or  in  England.  There  are  oUter  dicta  of  Chief  Baron  Eichards : 
"  If  a  man  will  make  a  purchase  of  a  chance,  he  must  abide  by  the  con- 
sequences" {Hitchcock,  4  Price,  135) ;  and  of  Baron  Martin:  "No  doubt  a 
man  may  buy  a  chance  of  obtaining  goods  ..."  {Buddie,  1857,  27 
L.  J.  Ex.  24). 

The  Sale  of  Goods  Act  (56  &  57  Vict.  c.  71,  s.  5  (2))  enacts  that  "there 
may  be  a  contract  for  the  sale  of  goods,  the  acquisition  of  which  by  the 
seller  depends  upon  a  contingency  which  may  or  may  not  happen."  ^  The 
Act,  however,  does  not  apply  to  spei  emptio  in  Scots  law  ;  for  the  sjks  itself 
is  the  subject  of  the  sale,  and  incorporeal  subjects  are  not  included  in  the 
term  "  goods  "  as  defined  in  sec.  62  (1). 

In  English  law,  on  the  other  hand,  the  present  sale  of  a  chance  is 
impossible,  and  the  transaction  is  an  executory  agreement  to  sell  some- 
thing else  contingently  upon  its  coming  into  existence,  and  if  that 
thing  is  a  corporeal  movealjle  or  "  chattel  personal "  the  Act  will  apply. 
Some  English  lawyers  have  held,  on  the  sti-ength  of  the  old  case  of 
Grantham  (1603,  Hob.  132),  that  einptio  rei  speratm  is  to  be  regulated  as  a 
"  bargain  and  sale  "  to  take  effect  as  soon  as  the  thing  comes  into  existence. 
Benjamin,  Sale,  p.  82,  says :  "  Things  not  yet  existing  which  may  be  sold  are 
those  which  are  said  to  have  a  potential  existence,  that  is,  things  which  are 
the  natural  product  or  expected  increase  of  something  already  belonging  to 
the  vendor."  Chalmers,  on  the  other  hand,  is  definitely  of  opinion  that 
"  there  is  no  rational  distinction  between  one  class  of  future  goods  and 
another,  and  the  supposed  rule  has  never  been  acted  on.  Indeed,  Langton 
(1859,  28  L.  J.  Ex.  252),  closely  looked  at,  seems  to  negative  it"  (Chalmers 
on  the  Sale  of  Goods  Act,  p.  16). 

The  best  modern  illustrations  of  spei  emptio  are  the  sale  of  an  expected 
inheritance,  which  is  not  illegal  by  our  law  (Bell,  Prin.  s.  37 ;  Bagg,  1708, 
Mor.  9492;  and  Coolc,  1850,  15  Q.  B.  460),  and  of  a  goodwill,  "the  chance 
that  the  old  customers  will  resort  to  the  old  place  "  (Ld.  Eldon  in  Cruttwell, 
n  Yes.  335). 

The  commonest  modern  form  of  emptio  rei  sperata:  is  the  sale  of  "  futures  " 


SPES  SUCCESSIONIS  389 

on  the  Exchanges.  These  contracts  must  not  amount  to  a  wager;  for 
whether  the  Gaming  Act,  1845  (8  &  9  Vict.  c.  109),  applies  to  Scotland  or 
not,  gambling  contracts  are  void  at  common  law,  and  the  Courts  will  not 
entertain  suits  to  enforce  either  delivery  of  the  goods  or  payment  of  the 
price  in  these  transactions.  In  the  case  of  the  sale  of  "  futures,"  Benjamin 
(Sale,  p.  526)  draws  the  following  distinction :  "  Such  a  contract  is  only  valid 
where  the  parties  really  intend  to  agree  that  the  goods  are  to  be  delivered 
by  the  seller  and  the  price  to  be  paid  by  the  buyer.  If,  under  the  guise  of 
such  a  contract,  the  real  intent  be  merely  to  speculate  in  the  rise  and  fall 
of  prices,  and  the  goods  are  not  to  be  delivered,  but  one  party  is  to  pay  to 
the  other  the  difference  between  the  contract  price  and  the  market  price 
of  the  goods  at  the  date  fixed  for  executing  the  contract,  then  the  whole 
transaction  constitutes  nothing  more  than  a  wager,  and  is  null  and  void 
under  the  stfitnte "  (TFatfs,  1830.  10  B.  &  C.  446;  Thacker,  1878,  4  Q.  B.  D. 
685 ;  Hale,  1858,  4  C.  B.  85). 

[Ersk.  Inst.  iii.  3.  3;  Bell,  Prm.  s.  91  (2);  Brown.  Sale  of  Goods  Act, 
1893,  pp.  27,  29,  30 ;  Benjamin  on  the  Laiv  of  Sale,  4th  ed.,  pp.  82,  83,  87, 
526 ;  Chalmers,  Sale  of  Goods  Act,  1893,  3rd  ed.,  pp.  16-18 ;  Ker  and 
Pearson-Gee,  Sale  of  Goods  Act,  1893,  pp.  54-57.] 

See  Sale  ;  Gaming. 

SpeS  SUCCeSSioniS. — Any  defeasible  or  contingent  right  to 
succeed  to  any  property  on  the  death  of  another,  either  under  a  testa- 
mentary deed  or  ah  intcstato,  is  called  a  spcs  succcssionis,  or  hope  of  succession. 
A  spes  successionis  is  contrasted  with  a  Jus  crcditi  in  Ld.  jMoncreiffs  opinion 
in  the  case  of  Goddard  (6  D.  1018),  a  passage  from  which  is  worth  quoting 
as  it  illustrates  clearly  the  principle  that  the  same  person  may,  in  i-egard 
to  the  same  subject,  have  a  jus  crcditi  in  questions  with  one  class  of 
claimants  and  merely  a  spes  successionis  in  questions  with  another  class; 
in  other  words,  that  spcs  successionis  is  merely  a  relative  term.  "  If  the 
provision  [in  a  marriage  contract]  is  so  conceived  that  the  principal  is  not 
payable  till  after  the  father's  death,  and  does  not  bear  interest  from  any 
earlier  term,  and  where  no  actual  benefit  or  interest  can  be  clahned  or 
taken  in  his  lifetime,  there  is  no  jus  crcditi  vested  in  the  children  as 
against  onerous  creditors.  In  respect  of  the  father  and  his  lieirs,  they  are 
no  doubt  creditors;  but  in  respect  of  his  creditors  tliey  are  merely  heirs, 
having  no  more  than  a  spcs  succcsdonis."  In  tlic  same  way,  jiersons 
designated  as  heirs  in  a  mutual  settlement  may  have  a  j\is  crcditi  in 
questions  with  persons  claiming  under  testamentary  deeds  of  the  survivor, 
but  merely  a  spcs  succcssionis  in  ohlviaiionc  in  tiic  question  of  alienation  by 
the  survivor  onerously  or  gratuitously  inter  vivos  {^fa<farlanc's  Trs.,  22  1\'. 
927).  A  good  illustration  of  a  spcs  successionis  under  a  will  is  to  be  found 
in  the  old  cjisc  of  Frofs  Creditors,  1735,  Mor.  4202.  The  destination  there 
was  "  to  A.  in  liferent  and  the  children  to  be  lawfully  ])rocreated  of  his 
l)ody  in  fc."  'J'he  elVect  of  the  decision  was  that  the  fei^  was  in  A.,  and 
his  children  had  no  more  than  a  sjns  successionis.  Contrast  with  this  tlie 
case  of  Newlands,  1794,  Mor.  4289;  allU.  4  Pat.  -i;'..  in  which  the 
destination  was  to  A.  in  lifi'rent  for  his  liferent  use  nllnmrly  and  his 
children  in  fee,  and  the  benctieial  fee  was  foinid  to  l)e  in  the  chihh'en. 
For  examples  of  cases  in  which  there  is  merely  a  spcs  sweessionis,  see 
Ve.STINg;  l)Ut  the  following  illustrations  may  be  noted  here  in  addition  to 
those  already  quoted,  viz. :  Mivillr,  G  ii.  1280  ;  JAtm,  ctc.,7  K.  088;  Jknton 
&  M^ Andrew,  1  S.  49;  E.  Wcmyss,  28  Feb.  1815,  F.  C. ;  alVd.  0  Pat.  390; 
Bell,  Com.  i.  55. 


390  SPONSIO  LUDICKA 

Coming  now  to  the  right  of  affecting  a  spes  successionis,  by  Scots _  law 
it  is  quite  competent  for  a  person  to  assign  or  dispose  of  his  spes  successionis, 
either  absolutely  or  in  security ;  but  the  assignation  will  be  operative  only 
when  the  right  becomes  vested  (M'Laren  on  Wills  and  Successions,  s.  1549  ; 
Wood,  12  D.  963).  In  this  the  Scots  law  differs  from  the  Eoman  law, 
which  forbade  trafaddng  in  the  succession  of  a  person  still  living  (pactum 
^orvinum  de  hcereditate  viventis),  on  the  ground  that  it  was  contra  lonos  mores. 

But  although  a  spes  successionis  may  be  voluntarily  assigned  or  disposed 
■of,  it  may  not  be  adjudged  by  the  creditors  of  the  expectant  successor 
{Beaton  &  M Andrew,  1821,  1  S.  49);  nor  is  the  spes  successionis  carried 
by  sequestration  to  the  trustee  in  bankruptcy  {Beid,  20  K.  510 ;  Trappes, 
10  M.  38).  But  while  the  bankrupt  cannot  be  required  under  the 
Bankruptcy  Act,  1856  (19  &  20  Vict.  c.  79,  s.  81),  to  grant  deeds  necessary 
to  vest  the  trustee  in  property  which  he  may  have  in  expectancy,  the 
question  was  reserved  whether  a  bankrupt  who  refused  to  assign  such 
rights  to  the  trustee  might  not  have  his  discharge  delayed  or  burdened 
wTtli  conditions  {Beid,  20  E.  510).  On  the  other  hand,  a  bankrupt  may 
not  defeat  the  spes  of  his  creditors  by  alienation  to  another,  and  this  was 
applied  to  the  case  of  a  Scotsman  sequestrated  by  French  law,  who  dis- 
charged his  right  of  legitim  in  fraud  of  his  creditors  {Ohcrs,  24  E.  719), 
See  on  the  subject  generally.  Succession  ;  Vesting. 

SponsiO  ludicra.— See  Gaming. 

Spring   Guns. — The   setting   of    spring   guns   to   kill   or   maim 
poachers,  or  other  persons,  entering  ground  whether  enclosed  or  unenclosed, 
for  purposes  whether  lawful  or  unlawful,  is  illegal,  and  if  harm  result,  the 
.  setter  of  the  instrument  may  be  prosecuted  for  homicide  or  unlawful  wound- 
ing {Craw,  1826  and  1827,  Syme,  188  and  210,  also  in  Shaw  (Just.),  194). 

°  It  is  probably  lawful,  however,  to  set  these  instruments  against  burglars 
breaking  into  a  dwelling-house,  provided  care  be  taken  that  none  but 
burglars' are  exposed  to  the  danger.  In  England  the  matter  is  regulated 
by  statute  (24  &  25  Vict.  c.  100,  s.  31);  but  tlie  statute  does  not  apply  to 
Scotland,  where  the  common  law  was  considered  to  be  sufiicieutly  virile 
to  deal  with  the  matter.  It  seems  doubtful  whether  in  Scotland  a 
prosecution  could  be  sustained  if  no  harm  had  resulted. 

[Bell,  Prin.  961;  Hume,  i.  219;  Eankine,  ZandoivnersJdp,  130; 
Irvine,  Ga7ne  Laws,  81.] 

SpuIIzie.— Spuilzie  is  the  taking  away  or  intermeddling  with 
moveable  goods  in  the  possession  of  another,  without  consent  of  the  owner, 
or  without  due  order  of  law  (Stair,  i.  9.  16;  Bankt.  i.  10.  124;  Ersk. 
iii.  7.  16).  It  is  dealt  with  by  Stair  as  one  of  the  sources  of  the  natural 
obligation  of  reparation,  "obliging  to  restitution  of  the  things  taken 
away,  with  all  possible  profits,  or  to  reparation  thereof,  according  to  the 
estimation  of  the  injured,  made  by  his  juramcntum  in  litem."  The  remedy 
provided  by  the  older  Scots  law,  for  it  is  now  practically  obsolete,  ^yas  an 
action  of  spuilzie.  This  action  not  only  decreed  restoration  or  restitution 
of  the  things  spuilzied,  or  their  value ;  it  also  carried  with  it  liability^  for 
violent  profits,  that  is  to  say,  such  profits  as  the  despoiled  owner  might 
have  made  out  of  the  goods  (Stair,  v.s. ;  Ersk.  v.s.). 

It  may  be  noted  that,  like  theft,  spuilzie  affixed  a  lahcs  realis  upon  the 
goods  spuilzied,  enabling  the  owner  to  vindicate  them  even  in  the  hands  of 
londfide  purchasers  {Hay,  1677,  Mor.  102SG  ;  Bankt.  i.  10.  130). 


SrUILZlE  391 

The  action  of  spuilzie  belongs  to  that  class  of  possessory  actions  which, 
like  the  action  of  ejection, — from  which  indeed  it  differed  in  form  only  in 
respect  that  it  dealt  with  moveables  and  not  with  heritage  (Stair,  iv.  30. 1), — 
proceeded  upon  possession  alone,  and  required  no  title  in  writ.  The 
pursuer  needed  to  prove  no  more  than  that  he  was  in  lawful  possession  of 
the  subjects  libelled  (Stair,  i.  9.  17,  iv.  26.  2 ;  Ersk.  iv.  1.  15 ;  see  Maxwell, 
1676,  Mor.  14729).     See  Possessory  Actiox. 

The  action  lay  not  only  against  the  actual  wrong-doer,  but  also  against 
all  others  accessory  to  the  spuilzie,  as  by  taking  delivery  of  or  harbouring 
the  spuilzied  goods  {Cowgrane,  1629,  Mor.  379 ;  Earl  of  Roxburgh,  1628, 
Mor.  379).  The  liability  thence  arising,  being  a  liability  ex  delicto,  was  in 
solidum  and  without  relief  (Stair,  iv.  30.  3  ;  Ersk.  v.s. ;  Bankt.  i.  10.  130). 
Payment  by,  or  transaction  with  one,  if  for  onerous  cause,  effected  the 
liberation  of  all  (Douglas,  1613,  Mor.  14736  ;  Bankt.  v.s.). 

The  special  privileges  or  benefits  attaching  to  the  action  were :  (1)  That 
the  pursuer  needed  not  to  debate  with  a  defender  as  to  the  point  of  right. 
The  brocard  applied,  spoliatus  ante  omnia  rcstituendus.  (2)  In  the  absence 
of  concurring  testimony  as  to  the  extent  of  the  goods  spuilzied  (see  Fea^ 
1697,  Mor.  9367),  the  pursuer  had  the  privilege,  the  spuilzie  being  estab- 
lished in  part,  of  supplementing  the  proof  by  his  oath  in  litem  as  to  the 
extent  and  value  of  the  spuilzied  goods  (Stair,  i.  9.  18,  iv.  30.  2).  Upon 
these  he  might  put  a  j^reti^tm  affectionis,  subject  always,  however,  to  modi- 
fication by  the  Court  {Brown,  1628,  :Mor.  9361 ;  Jardine,  1573,  Mor.  9359). 
(3)  A  decerniture  in  an  action  of  spuilzie  carried  with  it  the  right  to  violent 
profits.  Such  profits,  however,  were  not  in  "  use  to  be  extended  further 
than  to  the  profits  of  cattle  or  those  things  which,  by  their  proper  use, 
render  a  profit ;  and  so  corns,  or  other  such  goods,  have  not  violent  profits  " 
(Stair,  iv.  30.  7 ;  Bankt.  i.  10.  133).  These  also  were  subject  to  taxation  at 
the  discretion  of  the  Court  {Home  of  Linthcl,  1668,  Mor.  13985),  and 
extended   only   to   direct,   not    consequential    losses    {Kerr,    1706,    Mor. 

16460). 

Various  defences  were  open  to  the  action.  It  was,  of  course,  a  complete 
defence  to  an  action  for  spuilzied  goods  that  they  were  lawfully  attached 
imder  legal  diligence  or  judicial  warrant;  that  the  goods  were  voluntarily 


On  the  other  liand,  there  were  other  defences  which  merely  went  to 
elide  the  action  rptoad  its  penal  consequences,  leaving  the  defender  still 
subject  to  the  ol^ligation  to  restore  and  repair  the  damage  caused  by  his 
act.     This  second  class  of  defences  fall  under  one  or  other  of  the  follnwing 

heads : — 

1.  That  tlie  alleged  spuilzie  was  an  act  done  in  virtue  of  some  title  or 
warrant,  public  or  private,  which,  while  proving  insnlHcient  in  llio  result  to 
warrant  the  act  complained  of,  aflorded  some  probalih-  or  colourable  excuse 
for  the  defender's  actings.  So,  although  a  warrant  of  poinding  was  subse- 
fiuentlv  reduced,  the  warrant  was  still  held  sudicient  to  elide  an  action  for 


spuilzie  of  the  goods  poin<led,  unless  {a)  the  proceedings  of  tlie  pomdcr  were 
tainted  by  7/jrt^t>/cs,  o].prcssion,  or  illegality,  as  where  the  ].rice  "f  >J>o 
goods  poinded  was  oflered  to  the  messenger  and  refused  {Herd man,  1620, 
Mor.  10507),  or  {h)  the  attached  moveables  were  protected  under  statute, 
as  beinrr  "plough  goods"  (Stat.  1503,  c.  98;  Stair,  iv.  .".0.  5,  iv.  47.  34; 
6?i6.soH,''l630,  Mor.  10512).  The  same  held  good  though  the  title,  under 
which  the  defender  proceeded  was  not  of  a  judicial,  but  of  a  private  character, 


392  STAMrS 

such  as  a  disposition,  the  defender  having  acted  throughout  in  the  londfide 
but  unfounded  belief  of  its  validity  and  sufficiency  in  law.  To  such  cases 
the  maxim  applied,  Quilihct  tittdus  cxcmat  a  siMio  (Stair,  i.  9.  19  ;  Ersk.  iv. 
1.  15).  Such  cases  are  very  numerous;  reference  may  be  made  to  the  fol- 
lowing: Kirkwood,  1633,  Mor.  2117;  /rnw^',  1662,  Mor.  14750;  Berfoord, 
1665,  Mor.  1817;  Sinclair,  1702,  Mor.  14755;  see  Mcnzics,  1635,  Mor. 
1815  ;  Thin,  1683,  Mor.  14753. 

2.  That  the  action  where  not  raised  within  three  years  had  suffered  the 
statutory  prescription  (Stat.  1579,  c.  81  ;  Stair,  i.  9.  24,  iv.  30.  4 ;  Ersk.  iii. 
7.  16).     See  Tkiennial  Peescription. 

It  will  be  observed  in  this  second  class  of  cases  that,  though  the  spuilzie 
was  elided,  this  was  only  to  the  effect  of  depriving  the  pursuer  of  the 
benefits  of  violent  profits  and  of  his  oath  in  litem ;  the  pursuer  might  still 
insist  in  the  action  for  wrongous  intromission,  and  to  the  effect  of  simple 
restitution  and  ordinary  damages,  to  which  the  action  of  spuilzie  might 
always  be  restricted  (Stair,  v.s.\  Ersk.  v.s.;  Sinclair,  v.s.).  In  the  latter  case, 
however,  the  defenders  were  no  longer  liable  in  solidum,  but  only  pro  rata 
(Strachan,  1687,  Mor.  14710).  Accordingly,  action  for  simple  restitution  and 
ordinary  damages  was  not  barred  by  the  triennial  prescription,  but  would 
lie  af^ainst  the  despoiler  any  time  within  forty  years  {Ra7j,  1627,  Mor. 
11069  ;  Ld.  Moncreiff,  Baillie,  1835,  13  S.  472,  at  475). 

The  action  of  spuilzie  being  penal  in  its  consequences  did  not  transmit 
against  heirs,  unless  there  had  been  litiscontestation  with  the  deceased 
(Leivars,  1711,  Mor.  10348  ;  Bankt.  i.  10.  132). 

See  Violent  Profits  ;  Yitious  Intromission. 

Stamps. — As  regards  all  instruments  executed  on  and  after  1st 
January  1892,  the  regulative  Acts  are:  (1)  the  Stamp  Act,  1891  (54  &  55 
Vict.  c.  39,  as  amended  by  56  Vict.  c.  7,  ss.  3,  4 ;  57  &  58  Vict.  c.  30,  s.  40 ; 
58  Vict.  c.  16,  ss.  9-16 ;  59  &  60  Vict.  c.  28,  ss.  12,  13 ;  60  &  61  Vict.  c.  24, 
s.  8 ;  and  61  &  62  Vict.  c.  46,  ss.  7,  8) ;  and  (2)  the  Stamp  Duties  Manage- 
ment Act,  1891  (54  &  55  Vict.  c.  38,  as  amended  by  61  &  62  Vict.  c.  46, 
ss.  10-13).     See  (15)  below. 

(1)  Interpretation  Clause  of  the  Stamp  Act,  1891. 

(2)  Construction  of  Statidcs  and  Instruments. 

(3)  Stamping  of  Instruments  ;  General  Provisions. 

{4:)  Impressed   Stampis ;     Adhesive   Stamj^s ;   Cancellation;   Fraud^dent 
Removal;  Defacement. 

(5)  Ap2)rop7natcd  Stamps. 

(6)  Denoting  Stamps. 

{^)  Adjudlccdion  Stamps ;  Letter  of  Satisfaction ;  Appeal. 

(8)  Production  of  Instruments  in  Evidence;  Expense  of  After -stamping. 

(9)  Stamping  after  Execution. 

(10)  Entries  iip)on  Bolls,  Boohs,  etc. 

(11)  Supplemented  Provisions — 

{a)  Duty  on  the  Capital  of  Comjmnies. 
(h)  Comjwsition  for  Certain  Stamp  Duties. 

(12)  Miscellaneous  Provisions — 

(a)  Assignment  of  Policy  to  Insurance  Company, 
(h)  Instruments  relating  to  Croum  Property. 
(c)  Instruments  charged  with  Duty  o/35s. 

(13)  Recovery  of  Penalties. 

{l^)  Sale  of  Stamps ;  Discounts  to  Purchasers ;  Stamp  Offences;  Recovery 
of  Money  received  for  Duty ;  Allowance  for  Spoiled  Stami^s. 


STAMPS  393 

(15)  Stamp  Duties  imposed  ly  Acts  other  than  the  Stamp  Act,  ld>^l,  and 

Amending  Acts. 

(16)  Stamp  Duty  on  Instruments,  Forms  of  ichich  arc  given  in  the  Con- 

veyancing (Scotland)  Act,  1874. 

(17)  General  Fxeynptions  from  all  Stamp  Duties. 

(18)  Special  Fxemptions  contained  in  Statutes  not  otherwise  relating  to 

Stamj)  Duties. 

(19)  IVrits  sjKcified  in  55  Geo.  in.  c.  184,  Schcd.  Ft.  II.  {IV.),  relating  to 

Froccedings  in  the  Courts  in  Scotland. 

(20)  Schcdidc  of  Duties  under  the  Stamp  Act,  1891,  xvith  the  Fclativc 

Sections  of  the  Act,  so  far  as  apiplicable  to  Scotland. 

(1)  Interpretation  Clause  of  the  Stamp  Act,  1891. — Sec.  122  provides  as 
follows : — 

(1)  In  tliis  Act,  unless  tlie  context  otlierwise  requires, — 

The  ex^Hession  "Conunissioners  "  means  Coniuiissioners  of  Inland  Revenue. 

The  expression  "material"  includes  every  sort  of  material  upon  which  words  or 
figures  can  be  expressed. 

The  expression  "instrument"  includes  every  written  document  : 
;      The  expression  "stami) "  means  as  well  a  siamp  impressed  by  means  of  a  die  as  an 
adhesive  stamp  : 

The  expression  "stamped,"  with  reference  to  instruments  and  material,  applies  as 
well  to  instruments  and  material  imjnvssed  with  stamps  by  means  of  a  die  as 
to  instruments  and  material  having  adhesive  stamps  atiixed  thereto  : 

The  expressions  "executed  "  and  "execution,"  with  reference  to  instruments  not 
under  seal,  mean  signed  and  signature  (see  Great  Western  liailway  Co., 
[1894]  1  Q.  B.  507  ;  Caledonian  Railway  Co.,  1881,  8  E.  (H.  L.)  23,  27,  per  Ld. 
Blackburn,  cited  (7)  below) : 

The  ex])ression  "  money  "  includes  all  sums  expressed  in  British  or  in  any  foreign 
or  colonial  currency  : 

Tlie  expression  "  stock  "  includes  any  share  in  any  stocks  or  funds  transferable  at 
the  Bank  of  England  or  at  the  Bank  of  Ireland,  and  India  jiromissory  notes, 
and  any  share  in  the  stocks  or  funds  of  any  foieign  or  colonial  State  or  Govern- 
ment, or  in  the  capital  stock  or  funded  debt  of  any  county  council,  corporation, 
comj)any,  or  society  in  the  United  Kingdom,  or  of  any  foreign  or  colonial 
corporation,  company,  or  society  : 

The  expression  "  marketal)le  security  "  iiu-aiis  a  security  of  such  a  description  as  to 
be  capable  of  being  sold  in  any  t-tock  luarket  in  the  United  Kingdom  (see  (20) 
below,  s.v.  "  ilarketable  Security  ") : 

Tlie  expression  "steward"  of  a  manor  includes  dcpuly  steward. 

(2)  In  the  application  of  this  Act  to  Scotland  exjiressions  ri-ferring  to  the  High 
Court  shall  be  construed  as  referring  to  the  Court  of  Session  sitting  as  the  Court  of 
Exchequer. 

(2)  Construction  of  Statutes  and  Instruments. — The  law  iclaliii}^'  to  slaiii])S 
is  a\to>rcihcY  positiri  ju7'is ;  it  involves  iiotliin<^  of  inineiple  or  reason,  Init 
depends  entirely  u]»on  tlie  langua;^'e  of  the  Le^n.slatiirc  (i)er  Taunton,  .).,  in 
Morley,  2  ]).  V.  C.  494).  If  there  is  any  doiiht  as  to  the  meaning  of  llic 
Stamp  Act,  it  must  he  construed  in  favour  of  the  suhject,  hecause  a  tax 
cannot  he  imjiosed  without  clear  and  e.xpres.s  words  for  that  ]nirposc  (i»er 
Pollock,  (J.  J'..,  Ourr,  1  1  Kx.  100;  Comm.  (f  Inland  Fnrnne  v.  Angus  tt  Co., 
L.  Pi.  23  Q.  B.  D.  579,per  Esher,  M.  II.;  Committee <f  London  Clearing  IJanhrrs, 
L.  R.  [189G]  1  (-1  15.  1.'22,  ])er  Wright,  J. ;  aild.  ik  542).  Piit  general  words 
im])o.sing  a  charge  cannot  he  restricted  (///  re  Wright,  11  Kx.  45H,  25  L.  J. 
Ex.  49).  If  the  words  employed  raise  a  patent  amhiguity,  it  is  the  duty  of 
a  Court  to  solve  it  as  a  matter  of  construction.  In  construing  the  words, 
the  surrounding  circumstances,  the  facts  which  must  have  heen  known  to 
the  Legislature  when  passing  the  measure,  the  language  of  the  other  enact- 
ments with  which  the  enactment  in  (iuestiou  is  associated,  and  the  language 


394  STAMPS 

of  the  class  of  enactments  of  which  it  forms  one,  are  elements  to  he  con- 
sidered {Committee  of  London  Clearing  Bankers,  ut  supra).  As  to  the  char- 
acter of  the  language  employed  in  the  Eevenue  Acts,  see  Liquidators  of  the 
Glasgow  City  Bank,  1881,  8  E.  389,  per  Ld.  Pros.  Inglis.  A  liberal  con- 
struction should  be  given  to  words  of  exemption  confining  the  operation  of 
the  duty  (  Warrington,  8  East,  242,  per  Ld.  EUenborough).  Where  certain 
instruments  are  exempted  in  general  words  in  an  Act  not  a  Stamp  Act,  the 
scope  and  purpose  of  the  Act  must  be  considered  in  determining  the  scope 
of  the  exemption  (Att.-Gcn.  v.  Gilpin,  L.  K.  6  Ex.  193). 

Observe  that  the  headings  under  which  the  sections  of  the  Stamp  Act, 
1891,  are  grouped,  cannot  be  discarded  from  consideration  {Mersey  Dock 
and  Harloitr  Board,  [1897]  1  Q.  B.  786,  2  Q.  B.  316  ;  cp.  Lnglis,  1898,  25  E. 
(H.  L.)  70,  per  Ld.  Herschell).  It  may  be  noted  that  each  specific  headmg 
in  the  schedule  refers  to  the  sections   dealing   with  the  subject   of   that 

heading. 

In  determining  whether  any  or  what  stamp  duty  is  exigible,  the  substance 
and  effect  of  the  deed  are  to  be  considered  rather  than  its  exact  words  or 
form  {Christie,  L.  E.  2  Ex.  46  ;  Limmer  Asphalte  Co.,  L.  E.  7  Ex.  211 ; 
Mortgage  Lnsurance  Cptn.,  L.  E.  20  Q.  B.  D.  645,  21  Q.  B.  D.  352;  Beleh,  1877, 
4  E.  592  ;  Gill,  1880,  8  E.  120  ;  Glasgow  &  S.-W.  Railway  Co.,  1887,  14  E. 
<H.  L.)  33  ;  see  (3)  infra).  The  question.  Is  the  instrument  dutiable  ? 
involves  the  application  of  a  canon  of  construction  different  from  that  to  be 
applied  when  the  question  is, — Under  which  of  several  heads  of  charge  does 
the  instrument  fall  ?  Thus  a  document  which  in  a  question  of  charge  or  no 
charge  would  undoubtedly  have  been  liable  as  a  promissory  note,  was  in  a 
question  whether  it  was  chargeable  as  a  "  promissory  note  "  or  "  debenture  " 
held  liable  under  the  latter  head  {British  Lndia  Steam  Navigation  Co.,  L.  E. 
7  Q.  B.  D.  165;  Mortgage  Lnsurance  Co.,  ut  supra  ;  cf.  Limmer  Asphalte  Co.,  ut 
supra).  It  is  to  be  observed  that  while  the  description  of  the  instrument 
by  the  parties  will  not  determine  its  character  {Mortgage  Lnsurance^  Co.  and 
Limmer  Asphalte  Co.,  ut  supra),  their  intention  is  a  relevant  consideration 
{Mortgage  Lnsuranec  Co.,  ut  supra).  AVhere  the  meaning  is  doubtful,  the 
stamp  may  be  looked  at  {LLutlcy,  46  L.  T.  E.  186). 

Observe  the  provision  of  61  &  62  Vict.  c.  46,  s.  7  (2),  that  any  document 
referring  to  any  Act  or  enactment  repealed  by  the  Stamp  Act,  1891,  shall, 
unless  the  context  otherwise  requires,  be  construed  to  refer  to  that  Act  or 
the  corresponding  enactment  in  that  Act. 

(3)  The  Stamping  of  Lnstruments  ;  General  Pror^sz'oJis.— The  instrument 
must  be  duly  stamped  for  its  main  object  {Limmer  Asphalte  Co.,  ut  snjyra). 
If  not  so  stamped,  it  cannot  be  made  available  for  any  subordinate  purpose, 
for  which  it  may  happen  to  be  stamped  {Corder,  3  Taunt.  382  ;  Doe  d.  Wyatt 
V.  Stagg,  9  L.  J.  C.  P.  73  ;  cf.  Fleming,  1859, 21  D.  982).  If  it  be  duly  stamped 
for  its  main  object  {Limmer  Asphalte  Co.,  ut  supra,  per  Martin,  B.),  or  if  it 
be  exempt  from  duty  as  to  its  main  object  (cf.  Curry,  3  T.  E.  524 ;  Heron, 
5  Esp.  269  ;  Walker,  6  C.  B.  662,  18  L.  J.  C.  P.  323 ;  and  Skrine,  2  Camp. 
407,  with  South,  3  Bing.  K  C.  506,  and  Horsfall,  2  Ex.  778,  17  L.  J.  Ex. 
•236),  anything  contained  in  it  accessory  to  that  object  will  not  attract 
■stamp  duty.  Moreover,  the  expression  in  the  instrument  of  that  which  the 
law  implies  does  not  necessitate  a  further  stamp,  for  exprcssio  eorum  qua:  taeite 
insunt  nihil  operatur  {Wroghton,  11  M.  &  W.  561,  13  L.  J.  Ex.  57,  per 
Parke,  B.).  If  a  stamped  deed  be  altered  in  suhstantialibns,  a  new  stamp 
is  requisite  {French,  9  East,  351  ;  London  and  Brighton  Bailway  Co.,  2  M.  & 
O.  674;  Nolle,  L.  E.  2  Ex.  135,  1  Bell's  Com.  321,  322),  unless  the  deed  was 
not  perfected  {Jones,  1  C.  &  M.  721  ;  Johnson,  2  Stark.  313). 


STAMPS  395 


Sec.  3  provides  that — 


(1)  Every  instrument  -written  upon  stamped  material  is  to  be  written  in  such 
manner,  and  every  instrument  partly  or  wholly  written  before  being  stamped  is  to  be  so 
stamped,  that  the  stamp  may  appear  on  the  face  of  the  instrument,  and  cannot  be  used 
for  or  applied  to  any  other  instrument  written  upon  the  same  piece  of  material. 

(2)  If  more  than  one  instrument  be  written  upon  the  same  piece  of  material,  every 
one  of  the  instruments  is  to  be  separately  and  distinctly  stamped  with  the  duty  with 
which  it  is  chargeable. 


'o"- 


Thus  unless  it  be  merely  explanatory  or  declaratory,  a  memorandum 
indorsed  upon  an  instrument  may  itself  be  chargeable  {Stephens,  2  M.  & 
Scott,  44 ;  Bacon,  3  M.  &  W.  78 ;  Schumeinn,  1  East,  537) ;  or  it  may  so 
control  the  instrument  as  to  render  it,  together  with  itself,  liable  to  one 
duty  (see  s.v.  "  Agreement "  below). 
Sec.  4  provides  that — 

Except  where  express  provision  to  the  contrary  is  made  by  this  or  anj'  other 
Act, — 

(a)  An  instrument  containing  or  relating  to  several  distinct  matters  is  to  be 
separately  and  distinctly  charged,  as  if  it  were  a  separate  instrument,  with 
duty  in  respect  of  each  of  the  matters  ; 

(6)  An  instrument  made  for  any  consideration  in  respect  whereof  it  is  chargeable 
with  ad  valorem  duty,  and  also  for  any  further  or  other  valuable  consideration 
or  considerations,  is  to  be  separately  and  distinctly  cliarged,  as  if  it  were  a 
separate  instrument,  with  duty  in  respect  of  each  of  the  considerations. 

Thus  an  instrument  containing  an  appointment  of  new  trustees  and  a 
conveyance  of  the  trust  property  is  chargeable  with  two  duties  of  10s.  each 
{Hadgett,  L.  E.  3  Ex.  D.  46) ;  and  a  settlement  of  a  definite  sum  and  of  the 
proceeds  of  heritage  not  yet  sold  is  liable  to  settlement  duty  and  deed  duty 
{Stuclcy,  L.  Pi.  5  Ex.  85).  An  instrument  which  operates  to  convey 
separate  properties  to  separate  persons,  to  be  held  by  them  in  severalty 
{Freeman,!,.  II.  G  Ex.  101),or  includes  several  contracts  with  several  persons 
{Waclcliwjton,  5  Esp.  182  ;  cp.  Doe  d.  Copley  v.  Day,  13  East,  241),  attracts 
separate  duties.  But  where  a  person  purchases  several  lots  at  a  sale  by 
auction,  thereby  entering  into  several  contracts  {Coudun,  Tliomson,  &  Co., 
1872,  10  M.  (H.  L.)  74),  he  may  combine  these  contracts  in  one  written 
contract  lialjle  to  one  stamp  (cf.  Bcddcy,  2  B.  &  C.  37,  with  James,  1  Stark. 
426,  and  Hoots,  4  B.  &  Ad.  77).  If  the  several  parties  to  an  instrument 
have  a  common  interest  in  its  subject-matter,  or  if  its  jmrpo-se  be  a  imrposo 
common  to  them  all,  it  will  be  haltle  to  one  duty  only  {L'ourn,  1  N.  P.  274; 
Davis,  13  East,  232 ;  Goodson,  1  ^larsh,  525  ;  Allen,  8  B.  &  C.  565 ;  Bams- 
hottom,  4  M.  &  W.  584;  Doc  d.  Croft  v.  Tidhury,  14  C.  B.  304,  23  L.  J. 
C.  P.  57). 

Sec.  5  provides  that — 

All  the  facts  and  circumstances  afFecting  the  liability  of  any  instrument  to  duty,  or 
the  amount  of  tlie  duty  with  wliich  any  instrument  i.s  charfji-ablc,  are  to  be  fullv  and 
truly  set  forth  in  tlie  instrument  ;  and  every  person  who,  witli  intent  to  defraud  lier 
Majesty, 

(a)  excrutcs  any  instrument  in  wliich  all  the  Kiid  facts  and  circumstances  are  not 

fully  and  truly  set  forth  ;  or 
(6)  being  enii)loyed  or  concerned  in  or  about  the  prei)aration  of  any  instrument, 
neglects  or  omits  fully  and  truly  to  set  forth  therein  all  the  siiid  facts  and  cir- 
cumstances ; 
shall  incur  a  fine  of  ten  pound.i. 

The  penalty  is  not  cnforccaljle  if  the  duty  paid  be  not  less  than  tlic  duty 
pavabic  had  t])C  provisions  of  the  Hoction  been  complied  with  (sec  Fnrncss 
Eailway  Co.,  33  L.  J.  Ex.  17:'.,  per  WAU-V,  C.  B.). 


396  STAMPS 

Observe  the  provision  of  sec.  117 — 

Every  condition  of  sale  framed  with  the  view  of  precluding  objection  or  requisition 
upon  the  ground  of  absence  or  insufficiency  of  stamp  upon  any  instrument  executed 
after  the  sixteenth  day  of  May  one  thousand  eight  hundred  and  eighty-eight,  and  every 
contract,  arrangement,  or  undertaking  for  assuming  the  liability  on  account  of  absence 
or  insufficiency  of  stamp  upon  any  such  instrument  or  indemnifying  against  such 
liability,  absence,  or  insufficiency,  shall  be  void. 

See  Nixon,  L.  K.  2  Ex.  338 ;  Cowan,  1872,  10  M.  735. 
Sec.  6  provides  that — 

(1)  Where  an  instrument  is  chargeable  with  ad  valorem  duty  in  respect  of— 

(«)  any  money  in  any  foreign  or  colonial  currency,  or 

{h)  any  stock  or  marketable  security, 
the  duty  shall  be  calculated  on  the  value,  on  the  day  of  the  date  of  the  instrument,  of 
the  money  in  British  currency  according  to  the  current  rate  of  exchange,  or  of  the  stock 
or  security  according  to  the  average  price  thereof. 

(2)  Where  an  instrument  contains  a  statement  of  current  rate  of  exchange,  or  average 
price,  as  the  case  may  require,  and  is  stamped  in  accordance  with  that  statement,  it  is^ 
so  far  as  regards  the  subject-matter  of  the  statement,  to  be  deemed  duly  stamped,  unless  or 
until  it  is  sliown  that  the  statement  is  untrue,  and  that  the  instrument  is  in  fact  insuffi- 
ciently stamped. 

(4)  Impressed  Stamps;  Adhesive  Stamps;  Cancellation;  Fraudulent 
Bemoval ;  Defacement. — Sec.  2  provides  that — 

All  stamp  duties  for  the  time  being  chargeable  by  law  upon  any  instruments  are  to 
be  paid  and  denoted  according  to  the  regulations  in  this  Act  contained,  and  except  where 
express  provision  is  made  to  the  contrary  are  to  be  denoted  by  impressed  stamps  only. 

Sec.  7  provides  that — 

Any  stamp  duties  of  an  amount  not  exceeding  two  shillings  and  sixpence  upon 
instruments  which  are  permitted  by  law  to  be  denoted  l)y  adhesive  stamps  not  appro- 
priated by  any  word  or  words  on  the  face  of  them  to  any  particular  description  of  instru- 
ment, and  any  postage  duties  of  the  like  amount,  may  be  denoted  by  the  same  adhesive 
stamps. 

Appropriated  adhesive  stamps  are  to  be  used  in  the  case  of^bills  of 
exchange  or  promissory  notes  drawn  or  made  out  of  the  United  Kingdom 
(s.  34  (2)),  and  of  contract  notes  liable  to  the  duty  of  one  shilling  (s.  52  (3) ; 
56  Vict.  c.  7,  s.  3).  Adhesive  or  impressed  stamps  may  be  used  in  the  case 
of  agreements  liable  to  the  fixed  duty  of  sixpence  (s.  22) ;  bills  of  exchange 
(including  cheques)  payable  on  demand  (s.  34  (1)) ;  certified  copies  of  or 
extracts  from  registers  of  births,  etc.  (s.  64) ;  charter-parties  (s.  49  (2)) ; 
contract  notes  liable  to  the  duty  of  one  penny  (s.  52  (3)) ;  delivery-orders 
(s.  69  (3));  a  lease  or  agreement  for  a  lease  and  duplicate  or  counterpart 
thereof  {a)  for  any  definite  term,  not  exceeding  a  year,  of  a  dweUing- 
house,  or  part  thereof,  at  a  rent  not  exceeding  £10  per  annum,  or  (&)  for 
any  definite  term  less  than  a  year  of  a  furnished  dwelling-house  or  apart- 
ments (s.  78  (1));  letters  of  renunciation  (s.  79  (2));  notarial  acts  (s.  90); 
policies  of  insurance,  other  than  sea  or  life  insurance  (s.  99) ;  protests  of 
bills  or  notes  (s.  90) ;  proxies  liable  to  the  duty  of  one  penny  (s.  80  (2))  ; 
receipts  (s.  101  (2));  transfers  of  shares  in  cost-book  mines  (s.  110  (1)) ; 
voting  papers  (s.  80  (2));  and  warrants  for  goods  (s.  Ill  (2)). 

Sec.  8  provides  that — 

(1)  An  instrument,  the  duty  upon  which  is  required  or  permitted  by  law  to  be 
denoted  by  an  adhesive  stamp,  is  not  to  be  deemed  duly  stamped  with  an  adhesive 
stamp  unless  the  person  required  by  law  to  cancel  the  adhesive  stamp  cancels  the  same 
by  writing  on  or  across  the  stamp  his  name  or  initials,  or  the  name  or  initials  of  his  firm, 
together  with  the  true  date  of  his  so  writing,  or  otherwise  effectively  cancels  the  stamp 


STAMPS  397 

and  renders  the  same  incapable  of  being  used  for  any  other  instrument,  or  for  any- 
postal  purpose,  or  unless  it  is  otherwise  proved  that  the  stamp  appearing  on  the  instru- 
ment was  affixed  thereto  at  the  proper  time. 

(2)  Where  two  or  more  adhesive  stamps  are  used  to  denote  the  stamp  duty  upon  an 
instrument,  each  or  every  stamp  is  to  be  cancelled  in  the  manner  aforesaid. 

(3)  Every  person  who,  being  required  by  law  to  cancel  an  adhesive  stamp,  neglects 
or  refuses  duly  and  effectually  to  do  so  in  the  manner  aforesaid,  shall  incur  a  fine  of  ten 
pounds. 

This  section  does  not  apply  to  the  adhesive  stamps  used  for  foreign  bills 
and  promissory  notes  (see  sec.  35  (2),  38,  and  infra,  sub  voce  "Bill").  Adhesive 
stamps  are  to  be  cancelled,  in  the  case  of  an  agreement,  by  the  person  by 
whom  it  is  first  executed  (s.  22);  of  a  bill  payable  on  demand,  by  the 
person  who  signs  the  bill  before  he  delivers  it  out  of  his  hands,  custody, 
or  power  (s.  34  (1)) ;  of  foreign  bills  and  notes,  by  the  person  in  the  United 
Kingdom  into  whose  hands  the  document  comes  before  it  is  stamped 
(s.  35  (1)) ;  of  a  charter-party,  by  the  person  by  whom  it  was  last  executed, 
or  by  whose  execution  it  is  completed  as  a  binding  contract  (s.  49  (2)) ;  of 
a  contract  note,  by  the  person  by  whom  the  note  is  executed  (s.  52  (4));  of 
certified  copies  and  extracts  from  registers  of  births,  etc.,  by  the  person  by 
whom  the  copy  is  signed  before  he  delivers  the  same  out  of  his  hands, 
custody,  or  power  (s.  64) ;  of  a  delivery-order,  by  the  person  by  whom  the 
instrument  is  made,  executed,  or  issued  (s.  69  (3)) ;  of  a  lease  of  a  dwelling- 
house  at  rent  not  exceeding  £10  per  annum,  or  furnished  house  or  apart- 
ments, and  duplicate  or  counterpart  thereof,  by  the  person  by  whom  the 
instrument  is  first  executed  (s.  78) ;  of  a  letter  of  renunciation,  by  the 
person  by  whom  the  letter  of  renimciation  is  executed  (s.  79  (2)) ;  of  a 
notarial  act,  by  the  notary  (s.  90) ;  of  a  protest  of  a  bill  or  note,  by  the 
notary  (s.  90) ;  of  a  policy  other  than  a  life  or  sea  policy,  by  tlic  person  by 
whom  it  is  first  executed  (s.  99) ;  of  a  proxy  or  voting  paper  liable  to  the 
duty  of  one  penny,  by  the  person  by  whom  the  instrument  is  executed 
(s.  80  (2));  of  a  receipt,  by  the  person  by  whom  the  receipt  is  given,  before 
he  delivers  it  out  of  his  hands  (s.  101  (2));  of  a  transfer  of  shares  in  cost- 
book  mines,  by  the  person  by  whom  the  request,  authority,  or  notice  is 
written  or  executed  (s.  110  (1));  and  of  a  warrant  for  goods,  by  the  person 
by  whom  the  instrimient  is  made,  executed,  or  issued  (s.  Ill  (2)). 

Sec.  9  provides  that — 

(1)  If  any  person — 

(a)  Fraudulently  removes  or  causes  to  be  removed  from  any  instrument  any 
adhesive  stamp,  or  affixes  to  any  other  instrument  or  uses  for  any  postal 
purpose  any  adhesive  stamp  which  has  been  so  removed,  with  intent  that  the 
sUimp  may  be  used  again  ;  or 
(Jj)  Sells  or  offers  for  sale,  or  utters,  any  adhesive  stamp  which  has  been  so  re- 
moved, or  utters  any  instrument,  having  thereon  any  adhesive  stamp  which 
has  to  his  knowledge  been  so  removed  as  aforesaid  ; 
he  shall,  in  addition  to  any  other  fine  or  penalty  to  which  he  may  be  liable,  incur  a  fino 
of  fifty  pounds. 

Subsec.  (2)  is  repealed  by  01  &  02  Vict.  c.  4G,  s.  7  (4),  which  enacts 
that  the  expression  "  instrument "  in  sec.  9(1)  shall  include  any  postal  packet 
within  the  meaning  of  47  &  48  Vict.  c.  70.  Sec.  7  (5)  of  the  same  Act  pro- 
vides that  any  line  iiw-urrod  under  sec  9  ni;iy  be  recovcnsd  Kummarily,  sub- 
ject to  the  like  right  of  ajipcal  as  in  the  case  of  any  Hue  under  any  Act 
relating  to  the  Ex'cise. 

Sec.  20  of  54  &  55  Vict.  c.  38  provides  tliat— 

20.  Ever)'  person  who  by  any  writing  in  any  manner  defaces  any  adhesive  statu n  be- 
fore it  is  used  shall  incur  a  fine  "f  five  pfiunds  :  Provided  lh.it  .iiiy  jicrsi*!!  may  willilho 
express  sanction  of  the  Comiai.--ioner3,  and  in  conformity  with  the  conditions  which 


398  STAMPS 

they  may  prescribe,  write  upon  or  otherwise  appropriate  an  adhesive  stamp  before  it  is 
used  for  the  purpose  of  identification  thereof. 

(5)  Appropriated  Stamps. — Sec.  10  provides  that — 

(1)  A  stamp  which  by  any  word  or  words  on  the  face  of  it  is  appropriated  to  any 
particular  description  of  instrument  is  not  to  be  used,  or,  if  used,  is  not  to  be  available, 
for  an  instrument  of  any  other  description. 

(2)  An  instrument  falling  under  the  particular  description  to  which  any  stamp  is  so 
appropriated  as  aforesaid  is  not  to  be  deemed  duly  stamped,  unless  it  is  stamped  with 
the  stamp  so  appropriated. 

See  Ashling,  L.  E.  [1891]  1  Ch.  568. 

The  appropriated  stamps  are  impressed  and  adhesive,  and  are  used  in 
the  case  of  bills  of  exchange  (payable  otherwise  than  on  demand,  or  at 
sio-ht,  or  on  presentation),  promissory  notes  and  contract  notes  liable  to  the 
duty  of  one  shilling.  These  bills  of  exchange  and  promissory  notes  are  to 
be  stamped  with  impressed  or  adhesive  appropriated  stamps,  according  as 
they  are  inland  or  foreign  (see  sees.  34  (2),  37,  s.v.  "  Bill ").  Contract  notes 
liable  to  the  duty  of  one  shilling  are  to  be  stamped  with  adhesive  appro- 
priated stamps  (see  sec.  52  (3) ;  56  Vict.  c.  7,  sec.  3,  s.v.  "  Contract  Note  "). 

(6)  Denoting  Stamps. — Sec,  11  provides  that — 

Where  the  duty  with  which  an  instrument  is  chargeable  depends  in  any  manner 
upon  the  duty  paid  upon  another  instrument,  the  payment  of  the  last-mentioned  duty 
shall,  upon  application  to  the  Commissioners  and  production  of  both  the  instruments, 
be  denoted  i;pon  the  first-mentioned  instrument  in  such  manner  as  the  Commissioners 
think  fit. 

The  denoting  stamps  used  are  :  (1)  Duplicate  denoting  stamp  ("  Dupli- 
cate or  Counterpart ;  original  stamped  with  £ —  "),  see  Duplicate  or  Counter- 
imrt,  infra,  and  sec.  72;  (2)  duty  paid  denoting  stamp  ("Duty  paid,  ad 
valorem  £ —  "),  required,  e.g.,  upon  a  lease  stamped  with  sixpence,  the  agree- 
ment for  the  lease  bearing'the  ad  valorem  duty  if  in  excess  of  sixpence  (s.  75) ; 
and  (3)  substituted  security  stamp  ("  Original  Security  Duty  stamped,"  and 
"  Original  Security  stamped  ten  shillings  per  cent.").  In  the  case  of  denot- 
ing stamps  (1)  and  (2),  the  instruments  bearing  the  higher  duty,  together 
with  those  to  be  denoted,  must  be  jDroduced  at  the  office  of  the  Solicitor  of 
Inland  Kevenue,  Edinburgh,  or  sent  to  him  through  the  local  distributor  of 

stamps. 

The  denoting  stamp  does  not  ensure  to  an  instrument  the  privileges  of 

sec.  12  (5)  (see  (7)  infra). 

As  to  a  lease,  see  sx.  "  Duplicate  or  Counterpart." 

(7)  Adjudication  Stamps ;  Letter  of  Satisfaction ;  Aptpeal. 
Sec.  12  provides  that — 

(1)  Subject  to  such  regulations  as  the  Commissioners  may  think  fit  to  make,  the 
Commissioners  may  be  required  by  any  person  to  express  their  opinion  with  reference 
to  any  executed  instrument  upon  the  following  questions  : 

(a)  Whether  it  is  chargeable  with  any  duty  ; 
(5)  With  what  amount  of  duty  it  is  chargeable. 

(2)  The  Commissioners  may  require  to  be  furnished  with  an  abstract  of  the  instru- 
ment, and  also  with  such  evidence  as  they  may  deem  necessary,  in  order  to  show  to 
their  satisfaction  whether  all  the  facts  and  circumstances  affecting  the  liability  of  the 
instrument  to  duty,  or  the  amount  of  the  duty  chargeable  thereon,  are  fully  and  truly 
set  forth  therein. 

(3)  If  the  Commissioners  are  of  opinion  that  the  instrument  is  not  chargeable  with 
any  duty,  it  may  be  stamped  with  a  particular  stamp  denoting  that  it  is  not  chargeable 
with  any  dutj^ 

(4)  If  the  Commissioners  are  of  opinion  that  the  instrument  is  chargeable  with  duty, 
they  shall  assess  the  duty  with  which  it  is  in  their  opinion  chargeable,  and  when  the 
instrument  is  stamped  in  accordance  with  the  assessment  it  may  be  stamped  with  a 
particular  stamp  denoting  that  it  is  duly  stamped. 


STA]\irS  q 


99 


(5)  Every  instrument  stamped  with  the  particuhir  stamp  denoting  either  that  it  is 
not  chargeul.Ie  with  any  duty,  or  is  duly  stamped,  shall  be  admissible  in  evidence  and 
available  for  all  purposes  notwithstanding  any  obiection  relatin"  to  dutv  ' 

(6)  Provided  as  follows :  ^      J      J  ^  ^y 

(a)  An  instrument  upon  which  the  duty  has  been  assessed  by  the  Commissioners 
shall  not,  if  it  is  unstamped  or  insufficiently  stamped,  be  stamped  otherwise 
than  in  accordance  with  the  assessment : 

(h)  Nothing  in  this  section  shall  extend  to  any  instrument  chargeable  with  ad 
valorem  duty,  and  made  as  a  security  for  money  or  stock  without  limit  ;  or  shall 
authorise  the  stamping  after  the  execution  thereof  of  any  instrument  which  by 
law  cannot  be  stamped  after  execution  : 

(c)  A  statutory  declaration  made  for  the  purpose  of  this  section  shall  not  be  used 
against  any  person  making  the  same  in  any  proceeding  whatever,  except  in  an 
inquiry  as  to  the  duty  with  which  the  instrument  to  which  it  relates  is  charge- 
able ;  and  every  person  by  whom  any  such  declaration  is  made  shall,  on  pay- 
ment of  the  duty  chargeable  upon  the  instrument  to  which  it  relates,  be  relieved 
from  any  fine  or  disability  to  which  he  may  be  liable  by  reason  of  tlie  omission 
to  state  truly  in  the  instrument  any  fact  or  circumstance  required  by  this  Act  to 
be  stated  therein. 

As  to  the  meaning  of  the  ^yords  "executed  instrument"  see  (1)  above. 

Provision  for  the  adjudication  of  instruments  \Yas  introduced  by  the 
Act  13  &  14  Vict.  c.  97,  s.  14.  Observe  that  the  instrimient  cannot  be 
adjudicated  unless  completed  and  executed. 

An  adjudication  can  be  conducted  by  correspondence  only  in  the  case 
of  agents  not  resident  in  Edinburgh.  Each  instrument  must  be  accom- 
panied by  an  abstract  and  a  schedule.  The  latter,  which  is  provided  by 
the  Commissioners,  states  the  date  of  the  application  for  adjudication,  the 
date  and  description  of  the  instrument,  the  names  of  the  parties  to  it,  the 
name  of  the  applicant,  and  the  amount  of  duty,  if  any,  which  the  instru- 
ment bears.  The  former  must  contain  a  full  statement  of  the  narrative  and 
operative  clauses  of  the  instrument.  Eurther,  the  abstract  of  a  settlement 
should  bear  the  value  of  the  stocks  and  securities  settled,  and  of  the  amount 
and  quality  of  any  property  which  falls  under  it  (see  Onslow,  [1891]  1  Q.  I>. 
239) ;  and  with  the  abstract  of  an  agreement  for  the  sale  of  a  business  and 
its  assets  .should  be  sent  the  balance-sheets  and  valuations  upon  which  the 
sale  proceeds.  If  the  instrument  be  short,  a  copy  rather  than  an  abstract 
should  be  f  urnislied.  As  to  subsec.  (5),  see  Frudential  Mutual  Investment  and 
Loan  Association,  8  Ex.  97,  22  L.  J.  Ex.  85. 

As  to  the  first  paragraph  of  su])scc.  (G)  (?>),  sec  "Mortgage"  and  sec. 
88.  It  may  be  observed  that  while  an  instrument  constituting  an 
unlimited  security  cannot  be  adjudicated,  a  letter  may  in  certain  cases  be 
obtained  from  tiie  Solicitor  of  the  Inland  IJcvenuc  stating  that  the  claims  of 
the  revenue  arc  satisfied ;  cj.  where  the  instrument  purports  to  create  a 
security,  without  stating  a  limit,  and  a  signed  docquct  is  added  stating  that 
the  amount  secured  never  exceeded  the  amount  covered  by  the  stamp  ;  or 
where  the  instrumont  constituting  the  .security  is  rx  facie  absolute,  and  a 
duly  stanijjcd  back-letter  is  suljscquently  executed. 

As  to  the  second  paragraj))!  of  the  sulisection,  see  Morga7i,  14  C  I'..  473, 
23  L.  J.  C.  r.  64;  in  re  The  BclfoH,  L.  \l.  9  V.  21.".  ;  Vallancc,  1879,  G  11. 
1099. 

Sec.  I- J  provides  that — 

(1)  Any  person  who  is  di.s3ati.sficd  with  tlie  assessment  of  the  Commi.'<sioncrs  niav, 
within  twenty-one  days  after  tlie  date  of  the  lUsseHsiiiciit,  and  on  ])ayment  of  duty  in 
conformity  therewitli,  ajipcal  against  tlic  aHscssment  to  (Ik;  Iligli  Cnurt  of  the  jiart  of 
the  United  Kingdom  in  wliicli  tlie  case  has  arisen,  and  may  for  tliat  jmrpose  require 
the  Commissioners  to  state  and  sign  the  case,  setting  fortli  tlic  question  upon  wnich 
tlieir  opinion  was  required,  and  the  assessment  made  l)y  tliein. 

(2)  The  Commissioners  shall  thereupon  state  and  sign  a  case  and  deliver  the  same  to 


400  STAMrS 

the  person  by  wliom  it  is  rei^uired,  and  the  case  may,  within  seven  days  thereafter,  be 
set  down  by  him  for  hearing. 

(3)  Upon  the  hearing  of  the  case,  the  Court  shall  determine  the  question  submitted, 
and,  if  the  instrument  in  question  is  in  the  opinion  of  the  Court  chargeable  with  any 
duty,  shall  assess  the  duty  with  which  it  is  chargealjle. 

(4)  If  it  is  decided  "by  the  Court  that  the  assessment  of  the  Commissioners  is 
erroneous,  any  excess  of  duty  which  may  have  been  paid  in  conformity  with  the 
erroneous  assessment,  together  with  any  tine  or  penalty  which  may  have  been  paid  in 
consequence  thereof,  sliall  be  ordered  by  the  Court  to  be  repaid  to  the  appellant,  with  or 
without  costs  as  the  Court  may  determine. 

(5)  If  the  assessment  of  the  Commissioners  is  confirmed,  the  Court  may  make  an 
order  for  payment  to  the  Commissioners  of  the  costs  incurred  by  them  in  relation  to  the 
appeal. 

The  expression  "  High  Court  "  as  applied  to  Scotland  means  the  Court 
of  Session  sitting  as  the  Court  of  Exchequer  (s.  122  (2)).  It  is  the  duty  of 
the  Court,  on  an  appeal,  to  fix  the  amount  of  duty,  whether  it  be  less  or 
greater  than  that  fixed  by  the  Commissioners  ;  but  it  is  incompetent  for  it  to 
consider  their  determination  on  points  not  the  subject  of  appeal  (Maxicell, 
1866,  4  M.  1121). 

In  the  case  of  the  Great  Western  Raihvay  Co.,  [1894]  1  Q.  B.  507, 
the  provisions  of  this  section  were  applied  in  dealing  with  a  statute  (see 
also  Caledonian  Baihcety  Co.,  1881,  8  E.  (H.  L.)  23,  27,  per  Ld.  Blackburn). 
An  appeal  on  a  question  of  stamp  duty  was  taken  from  the  Court  of 
Session  sitting  as  the  Court  of  Exchequer  to  the  House  of  Lords  in  the  cases 
of  the  Glasgoio  and  S.-  W.  Fudhvaij  Co.,  1886,  13  E.  480  ;  1887,  14  R  (H.  L.) 
33,  and  Tod,  1897,  24  E.  934;  1898,  35  S.  L.  E.  671. 

(8)  Production  of  Instruments  in  Evidence;  Expense  of  After-stamping. — 
Sec.  14  provides  as  follows  : — 

(1)  Upon  the  production  of  an  instrument  chargeable  with  any  duty  as  evidence  in 
any  Court  of  civil  judicature  in  any  part  of  the  United  Kingdom,  or  before  any 
arbitrator  or  referee,  notice  shall  be  taken  by  the  judge,  arbitrator,  or  referee  of  any 
omission  or  insufficiency  of  the  stamp  thereon  (see  Coivan,  1872,  10  M.  735  ;  Boichcr,  5 
T.  L.  R.  382),  and  if  the  instrument  is  one  which  may  legally  be  stamped  after  the 
execution  thereof  (see  Vallance,  1879,  6  R.  1099),  it  may,  on  payment  to  the  ofiicer  of 
the  Court  whose  duty  it  is  to  read  the  instrument,  or  to  the  arbitrator  or  referee,  of  the 
amount  of  the  unpaid  duty,  and  the  penalty  payable  on  stamping  the  same,  and  of  a 
further  sum  of  one  pound,  be  received  in  evidence,  saving  all  just  exceptions  on  other 
grounds. 

(2)  The  officer,  or  arbitrator,  or  referee  receiving  the  duty  and  penalty  shall  give  a 
receipt  for  the  same,  and  make  an  entry  in  a  book  kept  for  that  purpose  of  the  payment 
and  of  the  amount  thereof,  and  shall  communicate  to  the  Conunissioners  the  name  or 
title  of  the  proceeding  in  which,  and  of  the  party  from  whom,  he  received  the  duty  and 
penalty,  and  the  date  and  description  of  the  instrument,  and  shall  pay  over  to  such 
person  as  the  Commissioners  may  appoint  the  money  received  by  him  for  the  duty  and 
penalty. 

(3)  On  production  to  the  Commissioners  of  any  instrument  in  respect  of  which  any 
duty  or  penalty  has  been  paid,  together  with  the  receipt,  the  payment  of  the  duty  and 
penalty  shall  be  denoted  on  tlie  instrument. 

(4)'  Save  as  aforesaid,  an  instrument  executed  in  any  part  of  tke  United  Kingdom 
(in  re  Wright,  11  Ex.  458,  25  L.  J.  Ex.  49),  or  relating,  wheresoever  executed,  to  any 
property  situate,  or  to  any  matter  or  thing  done  or  to  be  done  (see  Gilchrist,  26 
L.  T.  R.  381,  where  an  instrument,  executed  aljroad,  and  relating  to  property  abroad, 
was  admitted  in  evidence  unstamped)  in  any  part  of  the  United  Kingdom,  shall 
not,  except  in  criminal  proceedings,  be  given  in  evidence,  or  be  available  for  any  purpose 
whatever,  unless  it  is  duly  stamped  in  accordance  with  the  law  in  force  at  the  time 
when  it  was  first  executed  (see  Clarke,  L.  R.  3  Q.  B.  D.  170). 

In  the  case  of  Bristow,  5  Ex.  275,  19  L.  J.  Ex.  289,  it  was  observed 
that  if  for  want  of  a  stamp  a  contract  made  in  a  foreign  country  is  void,  it 
cannot  be  enforced  here,  but  that  an  unstamped  document  is  not  necessarily 
'inadmissible  in  this  country,  because  the  revenue  laws  of  a  foreign  State 


STAMPS  401 

require  that  it  shall  be  stamped  before  it  cau  be  received  in  evidence  there. 
In  other  cases,  however,  the  rule  that  no  notice  can  be  taken  of  the 
revenue  laws  of  a  foreign  country  has  been  applied  absolutely  {Holman, 
Cowp.  341 ;  James,  3  D.  &  E.  190  ;  Stewart,  1871,  9  M.  1057  ;  Valcrij, 
1876,  3  E.  965  ;  see  Westlake,  Private  International  Laiv,  3rd  ed.,  ss.  155, 
209).  An  attempt  has  been  made  to  limit  the  application  of  this  principle 
to  deeds  made  in  independent  States,  and  to  exempt  from  its  operation  a 
deed  made  in  a  British  colony ;  but  it  does  not  appear  to  have  the  sanction 
of  authority  (^^res,  7  T.  E.  241 ;  Crutchley,  5  Taun.  529  ;  Clcgg,  3  Camp.  166). 

The  words  "  available  for  any  purpose  whatever  "  are  new.  In  Birchall, 
[1896]  1  Q.  B.  325,  an  insufficiently  stamped  promissory  note  was 
handed  to  a  witness  under  cross-examination  to  refresh  his  memory  as 
to  the  debt  to  which  it  referred,  and  judgment  was  given  on  admissions 
thereupon  made.  The  words  in  the  Stamp  Act,  1870,  s.  17,  were 
"  admitted  to  be  good,  useful,  or  available,  in  law  or  equity."  The  rule 
was  to  admit  a  deed  unstamped  or  insufficiently  stamped  to  prove  facts 
collateral  to  its  purpose  {Matheson  &  Son,  1849,  6  Bell's  App.  374 ;  Eutiy, 
L.  E.  2  C.  r.  488  ;  Adams,  12  Ir.  L.  E.  Ex.  1  ;  McLaren,  1869,  8  M.  106  ; 
Dnrics  Exrx.,  1893,  20  E.  295  ;  cf.  HntcMnson,  1851,  13  D.  837;  and  see 
Tilsley,  Siamj)  Laics,  3rd  ed.,  247).  On  this  ground  an  imstamped  instru- 
ment has  been  admitted  wdien  tendered,  not  to  be  enforced,  but  to  show 
that  it  was  part  of  a  fraudulent  scheme  (R.  v.  Gomjxniz,  9  Q.  B.  824 ;  16 
L.  J.  Q.  B.  121 ;  Holmes,  7  Ex.  802,  21  L.  J.  Ex.  312),  or  that  the  transaction 
embodied  in  it  was  illegal  {Copjjock,  4  M.  &  W.  361),  or  in  proof  of  a 
person's  handwriting  {Machcnzie,  1839,  1  D.  1091),  or  as  secondary  evidence 
of  a  lost  deed,  duly  stamped  (Munn,  3  Bing.  292,  4  L.  J.  C.  R  54; 
cf.  Paul,  2  Y.  &  J.  116).  In  the  case  of  an  instrument  lost,  destroyed,  or 
withheld,  the  presumption  is  that  it  was  duly  stamped  (Hart,  1  llare,  1, 
11  L.  J.  Ch.  9 ;  Croidher,  6  C.  B.  758,  18  L.  J.  C.  P.  92 ;  Poolcy,  4  A.  &  E. 
94 ;  Crisp,  1  Stark.  35  ;  R.  v.  Long  Biicldey,  7  East,  45  ;  Closmadeuc,  18 
C.  B.  36,  25  L.  J.  C.  P.  216),  in  the  absence  of  some  evidence  to  the  contrary, 
e.g.  that  when  last  seen  it  was  unstamped  (Marine  Investment  Co.,  L.  E.  5 
H.  L.  624  ;  cf.  Rippincr,  2  B.  &  Al.  478  ;  Pousejield,  5  Bing.  418,  7  L.  J. 
C.  P.  158).  Accordingly,  in  an  action  of  proving  of  the  tenor  of  a  deed,  it 
is  not  necessary  to  prove  in  the  first  instance  that  it  was  stamped  (sec 
Bell,  Com.  i.  322 ;  Dickson,  ss.  978,  1352). 

Ob.serve  that  the  provision  of  8  &  9  Vict.  c.  16,  s.  14,  is  directory  only, 
and  that  a  deed  transferring  shares  or  stock  is  not  invalid  because 
erroneously  stamped  (Pou-cll,  L.  E.  [1803]  1  Ch.  610,  2  CIi.  555). 

It  may  be  noted  in  regard  to  the  exemption  in  favour  of  instrunicnts 
given  in  evidence  in  criminal  proceedings,  that  proceedings  before  justices 
for  the  recovery  of  statutory  penalties  are  regarded  in  England  as  criminal 
matters  (E.  v.  Tyler  &  International  Commercial  Co.,  L.  E.  [1801]  2  Q.  P.. 
588).  As  to  the  Scots  law  on  the  point,  sec  Stevenson,  1854,  1  Irv.  603; 
Prucc,  1861,  24  I).  184;  Alison,  18G2,  1  M.  87;  Blair,  1864,4  Irv.  545; 
Christie  Millrr,  1879,  6  E.  1215;  Thomson  tO  Co.,  1885,23  S.  L.  R  3; 
Z>o(?suwM,  1886,  14  E.  238. 

When  a  document  on  which  lioth  the  ]i;irties  to  a  suit  are  entitled  to 
found  requires  to  be  stamped,  he  who  founils  on  it  must  stamp  it  in  (lie 
fir-st  instance.  If  he  be  successful,  he  may  recover  half  the  expenses  from 
the  other  party  (Neil,  1867,  5  M.  634;  M'JJouall,  1870,  8  M.  1012).  But 
if  the  document  turn  out  to  l)e  wortli  nothing  for  the  pin-poses  of  the  suit, 
he  must  bear  the  expense  (Ilislop,  1878,  5  E.  794).  See  Mackay,  Manual, 
077  ;  Monteith  Smith,  E.r2>cnses,  329. 

S.  t. — VOL.  XI,  20 


402 


STAMPS 


(9)  Stamping  after  Execution. — Sec.  15  provides  as  follows : — 

(1)  Save  where  other  express  provision  is  in  this  Act  made,  any  unstamped  or 
insufficiently  stamped  instrument  may  be  stamped  after  the  execution  thereof,  on 
payment  of  the  unpaid  duty  and  a  penalty  of  ten  pounds,  and  also  by  way  of  further 
penalty,  where  the  unpaid  duty  exceeds  ten  pounds,  of  interest  on  such  duty,  at  the  rate 
of  five  pounds  per  centum  per  annum,  from  the  day  upon  which  the  instrument  was 
first  executed  up  to  the  time  when  the  amount  of  interest  is  equal  to  the  unpaid  duty. 

(2)  In  the  case  of  such  instruments  hereinafter  mentioned  as  are  chargeable  with  ad 
valorem  duty,  the  following  provisions  shall  have  eftect : 

(a)  The  instrument,  unless  it  is  written  upon  duly  stamped  material,  shall  be  duly 
stamped  with  the  proper  ad  valorem  duty  before  the  expiration  of  thirty 
days  after  it  is  first  executed,  or  after  it  has  been  first  received  in  the  _  United 
Kingdom  in  case  it  is  first  executed  at  any  place  out  of  the  United  Kingdom, 
unless  the  opinion  of  the  Commissioners  with  respect  to  the  amount  of  duty 
with  which  the  instrument  is  chargeable  has,  before  such  expiration,  been 
required  under  the  provisions  of  this  Act : 

{h)  If  the  opinion  of  the  Commissioners  with  respect  to  any  such  instrument  has  been 
required,  the  instrument  shall  be  stamped  in  accordance  with  the  assessment  of 
the  Commissioners  within  fourteen  days  after  notice  of  the  assessment  : 

(c)  If  any  such  instrument  executed  after  "the  sixteenth  day  of  May  one  thousand 
eight  hunclred  and  eighty-eight  has  not  been  or  is  not  duly  stamped  in  con- 
formity with  the  foregoing  provisions  of  this  subsection,  the  person  in  that 
behalf  hereinafter  specified  shall  incur  a  fine  of  ten  pounds,  and  in  addition 
to  the  i^enalty  payable  on  stamping  the  instrument  there  shall  be  paid  a 
further  penalty  equivalent  to  the  stamp  duty  thereon,  xmless  a  reasonable 
excuse  for  the  delay  in  stamping,  or  the  omission  to  stamp,  or  the  insufficiency 
of  stamp,  be  afforded  to  the  satisfaction  of  the  Commissioners,  or  of  the  Court , 
judge,  arbitrator,  or  referee  before  whom  it  is  produced  : 

{cl)  The  instruments  and  persons  to  which  the  provisions  of  this  subsection  are  to 
apply  are  as  follows  : — 


Title  of  Instrument  as  described  in  the 
First  Schedule  to  this  Act. 

Person  liable  to  Penalty. 

Bond,   covenant,  or  instrument  of  any 

kind  whatsoever 

Conveyance  on  sale 

Lease  or  tack 

Mortgage,    Iwnd,    debenture,     covenant, 

and  warrant  of  attorney  to  confess  and 

enter  up  judgment 

Settlement 

The  obligee,  covenantee,  or  other  person 
taking  the  security. 

The  vendee  or  transferee. 

The  lessee. 

The  mortgagee  or  obligee  ;  in  the  case  of 
a  transfer  or  reconveyance,  the  trans- 
feree, assignee,  or  disponee,  or  the 
person  redeeming  the  security. 

The  settlor. 

(3)  Provided  that  save  where  other  express  provision  is  made  by  this  Act  in  relation 
to  any  particular  instrument : 

(a)  Any  unstamped  or  insufficiently  stamped  instrument  which  has  been  first 
executed  at  any  place  out  of  the  United  Kingdom,  may  be  stamped,  at  any 
time  within  thirty  days  after  it  has  been  first  received  in  the  United  Kingdom, 
on  payment  of  the  impaid  duty  only  :  and 

(6)  The  Commissioners  may,  if  they  think  fit,  ...  .  (see  Finance  Act,  1895,  s.  15) 
mitigate  or  remit  any  penalty  payable  on  stamping. 

(4)  The  payment  of  any  penalty  payable  on  stamping  is  to  be  denoted  on  the 
instrument  by  a  jmrticular  stamp. 

The  following  instruments  are  the  subject  of  other  express  provision : — 
Articles  of  clerkship  (s.  27)  ;  bills  of  exchange  and  promissory  notes  (ss.  34 
(2),  37  (2)) ;  bills  of  lading  (s.  40  (1)) ;  charter-party,  save  when  wholly 
executed  out  of  the  United  Kingdom  (ss.  50,  51) ;  contract  notes  liable  to 
the  duty  of  one  shilling  (s.  52  (8) ;  56  Vict.  c.  7,  s.  3) ;  proxies  and  voting 
papers  liable  to  the  duty  of  one  penny,  save  when  executed  abroad  (s.  80 
(2));  policies  of  sea  insurance  (s.  95);  and  receipts,  save  when  executed 


STAMrS  403 

abroad  (s.  102).  The  Act  penalises  the  issue  or  execution  unstamped  of 
the  following  instruments: — Contract  notes  (s.  53  (2));  delivery-orders 
(s.  70  (b))  ;  certain  leases,  and  the  duplicates  or  counterparts  thereof  (s.  78) ; 
letters  of  allotment  and  renunciation  (s.  79  (1)) ;  policies  of  insurance 
other  than  sea  insurance  (s.  100) ;  scrip  certificates  and  scrip  (s.  79  (1)) ; 
share  warrants  (s.  107);  warrants  for  goods  (s.  Ill  (3));  and  appraisements 
or  valuations  not  stamped  within  fourteen  days  of  the  making  (s.  2-4).  The 
Commissioners  will  in  general  exact  a  penalty  on  after-stamping  any  one  of 
such  instruments.  In  practice,  all  instruments  not  specified  above  may  be 
stamped  without  penalty  w^ithin  thirty  days  from  the  date  of  execution 
save  agreements,  liable  to  the  fixed  duty  of  sixpence,  which  may  be  so 
stamped  within  fourteen  days,  and  attested  copies  and  extracts,  which 
may  be  so  stamped  within  fourteen  days  of  the  authentication  or  attestation. 
In  administration,  the  period  within  which  the  memorandimi  and  articles  of 
association  of  a  company  in  course  of  formation  may  be  stamped  without 
penalty  is  extended  to  twelve  months. 

As  to  the  bearing  of  sec.  13  upon  this  section,  see  (7)  above. 

As  to  questions  as  to  the  expense  of  stamping,  see  (8)  above 

(10)  Entries  upon  Bolls,  Boolcs,  etc. — Sec.  16  provides  as  foUows : — 

Every  public  officer  having  in  his  custody  any  rolls,  books,  records,  papers,  docu- 
ments, or  proceedings,  the  inspection  whereof  may  tend  to  secure  any  duty,  or  to  prove 
or  lead  to  the  discovery  of  any  fraud  or  omission  in  relation  to  any  duty,  shall^  at  all 
reasonable  times  permit  any  person  thereto  authorised  by  the  Commissioners  to  inspect 
the  rolls,  books,  records,  papers,  documents,  and  proceedings,  and  to  take  such  notes 
and  extracts  as  he  may  deem  necessary,  -without  fee  or  reward,  and  in  case  of  refusal 
shall  for  every  offence  incur  a  fine  of  ten  pounds. 

Sec.  17  provides  as  follows : — 

If  any  person  whose  office  it  is  to  enrol,  register,  or  enter  in  or  upon  any  rolls, 
books,  or  records  any  instruments  chargeable  with  duty,  enrols,  registers,  or  enters  any 
such  instrument  not  being  duly  stamped,  he  shall  incur  a  fine  of  ten  pounds. 

Where  the  registrar  of  joint  stock  companies  refuses  to  file  a  deed  ou 
the  ground  that  it  is  not  duly  stamped,  the  proper  remedy  is  provided  by 
sees.  12  and  13  (see  (7)  above),  and  not  by  way  of  mandamns  {B.  v.  Ecgistrar 
of  Joint  Stock  Companies,  L.  K.  21  (^  L.  D.  131). 

(11)  Supplemental  Provisions. 

(a)  Duty  on  the  Capital  of  Companies.— ^cc.  112  provides  tliat— 

A  statement  of  the  amount  which  is  to  form  the  nominal  share  capital  of  any  com- 
pany to  be  registered  with  limited  liability  shall  be  delivered  to  the  Registrar  of  Joint 
Stock  Companies  in  England,  Scotland,  or  Ireland,  and  a  statement  of  the  amount  of 
any  inrrease  of  registered  capital  of  any  company  now  registered  or  to  he  registered 
with  limited  liabilitv  shall  be  delivered  to  the  said  registrar,  and  every  such  statement 
.sliall  be  charged  with  an  ad  valorem  stamp  duty  of  two  shillings  for  every  one  huii.  red 
pounds  and  any  fraction  of  one  hundred  pounds  over  any  multiple  of  one  hundred 
pounds  of  the  amount  of  such  capital  or  increase  of  capital  as  the  ciuse  may  be. 

As  to  the  meaning  of  "nominal  share  capital,"  see  Att.-Gcn.  v.  Milford 
Docks  Co.,  09  L.  T.  11.  453. 
Sec.  113  provides  that — 

(1)  Where  by  virtue  of  any  letters  patent  granted  by  Her  Majesty,  or  any  Act,  the 
liability  of  the  holders  of  .shares  in  the  capital  of  any  corjioration  or  company  is  limited 
otherwise  than  by  registration  with  limited  liability  un<ler  the  law  in  that  beliall,  a 
statement  of  the  amount  of  nominal  share  capital  of  the  corijoration  or  company  slia  1 
be  delivered  by  the  corporation  or  comi)any  to  the  Commissioners  withm  one  month 
after  the  date  of  the  letters  patent  or  the  passing  of  the  Act ;  and  in  case  of  any 
increase  of  the  amount  of  nominal  share  capital  of  any  corporation  or  company, 
whether  now  existing   or    to   be  hereafter  formed,  being  authorised  by  any  letters 


404  STAMPS 

patent  or  Act,  a  statement  of  the  amount  of  such  increase  shall  Le  delivered  by  the 
corj^oration  or  company  to  the  Commissioners  within  the  like  period. 

(2)  The  statement  "shall  be  charged  with  an  ad  valorem  stamp  duty  of  two  shillings 
for  every  one  hundred  pounds  and  any  fraction  of  one  hundred  pounds  over  any 
multiple  of  one  hundred  pounds  of  the  amount  of  such  capital  or  increase  of  capital  as 
the  case  may  be,  and  shall  be  duly  stamped  accordingly  when  the  same  is  delivered  to 
the  Commissioners. 

(3)  In  the  case  of  neglect  to  deliver  such  a  statement  as  is  hereby  required  to  be 
delivered,  the  corporation  or  company  shall  be  liable  to  pay  to  Her  Majesty  a  sum  equal 
to  ten  pounds  per  centum  upon  the  amount  of  duty  payable,  and  a  like  penalty  for 
every  month  after  the  first  month  during  which  the  neglect  shall  continue. 

The  Finance  Act,  1896,  s.  12,  extends  this  provision  to  the  case  of  any 
coq^oration  or  company  where  its  capital  or  the  increase  thereof  is 
authorised  by  an  Order  of  Council,  or  a  certificate  of  a  Government 
Department,  or  in  any  other  manner. 

(6)  Composition  for  certain  Stami?  Duties. — Sec.  114  provides  that — 

(1)  By  way  of  composition  for  stamp  duty  chargeable  on  transfers  of  any  stock  of 
the  Government  of  Canada  which  may  be  inscriljed  in  books  kept  in  the  United 
Kingdom  or  of  any  Colonial  Stock  to  which  the  Colonial  Stock  Act,  1877,  applies,  the 
Government  of  Canada  or  other  colony,  as  the  case  may  be,  shall  pay  to  the  Com- 
missioners a  sum  as  stamp  duty  calculated  at  the  rate  of  one  shilling  and  threepence  for 
everv  ten  pounds,  and  any  fraction  of  ten  pounds  of  the  nominal  amount  of  such  stock 
inscribed  in  the  name  of  each  and  every  stockholder  at  the  date  of  the  composition — 

With  the  addition — 

(rt)  when  the  period  within  which  the  stock  is  to  be  redeemed  or  paid  off,  or  during 
which  annual  or  other  payments  in  respect  of  the  redemption  or  payment  off 
of  the  same  are  required  to  be  made,  exceeds  sixty  years,  but  does  not  exceed 
one  hundred  years  from  that  date,  of  threepence  for  every  such  ten  pounds  or 
fraction  of  ten  pounds  ;  or 

(/()  when  the  said  period  exceeds  one  hundred  years,  or  no  period  is  fixed  for  such 
redemption  or  payment  off,  or  no  such  annual  or  other  payments  are  required 
to  be  made,  of  sixpence  for  every  such  ten  pounds  or  fraction  of  ten  pounds  ; 
and  in  consideration  of  the  payment  transfers  of  the  stock  in  respect  of  which  the  com- 
position has  been  paid  shall  be  exempt  from  stamp  duty. 

(2)  All  sums  certified  by  the  Commissioners  to  have  been  received  by  way  of  com- 
position for  stamp  duty  on  transfers  of  stock  under  this  section  shall  be  paid  over  to  the 
National  Debt  Commissioners,  and  shall  be  applied  by  them  towards  the  reduction  of 
the  National  Debt  in  such  manner  as  the  Treasury  from  time  to  time  direct. 

Sec.  39  of  the  Finance  Act,  1894,  extends  this  provision  to  the  stock  of 
any  foreign  State  or  Government  which  is  inscribed  in  the  books  of  the 
Bank  of  England.  Further,  this  section  has  been  amended  by  sec.  14  of 
the  Finance  Act,  1895,  which  provides  that — 

Where  foreign  securities  within  the  meaningof  sees.  82and  83  of  the  Stamp  Act,  1891, 
are  issued  in  the  United  Kingdom,  and  the  interest  thereon  is  not  payable  in  the  United 
Kingdom,  and  such  evidence  of  the  amount  of  the  securities  as  the  Commissioners  of 
Inland  Revenue  require  is  produced  to  them,  then  the  Commissioners,  if  in  their 
discretion  they  consider  it  expedient  to  do  so,  may  accept  payment  of  the  amount  of 
stamp  duty  which  would  be  payable  if  all  the  securities  were  duly  stamped,  and  on  such 
payment  may  dispense  with  the  necessity  of  the  securities  being  stamped.  The  Com- 
missioners shall  give  notice  in  the  London  Gazette  of  any  such  dispensation. 

Sec.  114  of  the  Stamp  Act,  1891,  is  extended  by  sec.  5  of  the  Finance 
Act,  1898,  to  the  stock  of  any  British  protectorate  to  which  a  Secretary  of 
State  applies  the  Colonial  Stock  Acts,  1877  and  1892. 

Sec.  115  provides  that — 

(1)  Any  county  council  or  corporation  or  comjiany  may  enter  into  an  agreement 
with  the  Commissioners,  if  the  Commissioners  in  their  discretion  think  proper,  for  the 
delivery  of  an  account  showing  the  nominal  amount  of  all  the  stock  and  funded  debt  of 
such  county  council,  corporation,  or  company,  or  the  amount  thereof  in  respect  of  which 
payment  has  been  made,  if  the  whole  sums  payable  in  respect  thereof  have  not  been 


STAMPS  405 

paid ;  and  after  sucli  agreement  has  been  entered  into  tlie  account  shall  he  immediately 
delivered  to  the  Commissioners,  and  a  like  account  shall  be  delivered  half-vearly  in 
each  year.  "        ■' 

(2)  The  agreement  shall  specify  the  officer  of  the  county  council,  corporation,  or 
company,  whether  secretary,  treasurer,  accountant,  or  other  officer,  by  whom  the 
accounts  are  to  be  delivered,  and  such  officer  shall  observe  the  rules  in  the  first  part  of 
the  Second  Schedule  to  this  Act,  and  is  in  those  rules  referred  to  by  the  expression 
"  accountable  officer." 

(3)  There  shall  be  charged  by  way  of  composition  upon  the  aggregate  amount 
appearing  on  every  half-yearly  account  delivered  to  the  Commissioners  for  every  one 
hundred  pounds  and  any  fraction  of  one  hundred  pounds  of  such  amount  the  duty  of 
sixpence  as  a  stamp  duty,  and  so  soon  as  any  account  has  been  delivered,  and  payment  of 
the  duty  hereby  imposed  has  been  made,  transfers  of  any  stock  or  funded  debt  "included 
in  such  account,  and  also  any  share  warrants  or  stock  certificates  relating  to  such  stock 
or  funded  debt,  shall  be  exempt  from  duty. 

(■4)  If  the  duty  charged  is  not  paid  upon  the  delivery  of  the  account  it  shall  be  a 
debt  due  to  Her  Majesty  from  the  county  council,  corporation,  or  company  on  whose 
behalf  the  account  is  delivered. 

(5)  In  the  case  of  wilful  neglect  to  deliver  such  an  account  as  is  hereljy  required  to 
be  delivered,  or  to  pay  the  duty  in  conformity  with  this  section,  the  county  council  or 
corporation  or  company  shall  be  liable  to  pay  to  Her  Majesty  a  sum  equal  to  ten  pounds 
per  centum  upon  the  amount  of  duty  payable,  and  a  like  penalty  for  every  month  after 
tiae  first  month  during  which  the  neglect  continues. 

(6)  "Where  an  agreement  for  composition  under  this  section  has  been  entered  into  by 
any  county  council  or  corporation  or  company,  such  county  council  or  corporation  or 
company  shall  have  power,  in  addition  to  any  fee  exigible  upon  registration  of  any 
transfer  of  stock,  or  funded  debt,  as  the  case  may  be,  or  upon  issue  of  any  share  warrant, 
or  stock  certificate  relating  thereto,  to  require  payment  of  an  amount  not  exceeding  the 
amount  of  duty  which  would  have  been  chargeable  upon  the  transfer  or  share  warrant 
or  stock  certificate  if  no  such  agreement  had  been  entered  into. 

Sec.  IIG  provides  that — 

(1)  Where  any  person  issuing  policies  of  insurance  against  accident  shall,  in  the 
opinion  of  the  Commissioners,  so  carry  on  the  busine^^s  of  such  insurance  as  to  render  it 
impracticable  or  inexpedient  to  require  that  the  duty  of  one  penny  be  charged  and  ]iaid 
upon  the  policies,  the  Commissioners  may  enter  into  an  agreement  wilh  that  person  for 
the  delivery  to  them  of  quarterly  accounts  of  all  sums  received  in  respect  of  premiums 
on  policies  of  insurance  against  accident. 

(2)  The  agreement  shall  be  in  such  form  and  shall  contain  such  terms  and  con- 
ditions as  the  Commissioners  may  think  proper,  and  the  person  with  whom  the  agree- 
ment is  entered  into  shall  observe  the  rules  in  the  second  part  of  the  Second  Schedule 
to  this  Act. 

(3)  After  an  agreement  has  been  entered  into  between  the  Commissioners  and  anj' 
jierson  and  during  the  period  for  which  the  agn-ement  is  in  force,  no  policy  of  insur- 
ance against  accident  issued  by  that  person  shall  be  chargeable  witli  any  duty,  but  in 
lieu  of  and  by  way  of  composition  for  that  duty  there  shall  be  charged  on  the  aggregate 
amount  of  all  sums  received  in  resjmct  of  jiremiiims  on  policies  of  insurance  against 
accident  a  duty  at  the  rate  of  live  imuuils  ycv  centum  as  a  stamp  duty. 

(4)  If  the  duty  charged  is  not  paid  upon  tiie  delivery  of  tbe  account  it  shall  be  a 
debt  due  to  Her  Majesty  from  the  ]»erson  by  or  on  whose  behalf  the  account  is  delivered. 

(.5)  In  the  ca^e  of  wilful  neglect  to  deliver  such  an  account  as  is  hereby  recpiireil  or 
to  pay  the  duty  in  conformity  with  this  .section  llie  i)erson  .'^hall  be  lialile  to  pay  to  Her 
Majesty  a  sum  equal  to  ten  poun<ls  per  centum  ujion  the  amount  of  duty  ]tayable,  and  a 
like  penalty  for  every  month  after  the  first  month  during  which  the  neglect  continues. 

Sec.  I'-^j  of  the  Finance  Act,  1800,  iirovidcs  th;it  thisproyisinn  sliall  ;i))ply 
as  if  the  expression  "  poHcy  of  insurance  a^'ainst  acci<k'nt"  therein  in- 
cluded a  pohcy  of  in.surance  for  any  ])aynient  a^^recd  to  he  made  (hiring  the 
Rickness  of  any  person  or  (hning  his  incapacity  from  ]>crsonal  injiny. 

The  rides  as  to  eomi)osition  are  containeil  in  the  Second  Schedule  of  the 
Act,  and  are  as  follows : — 

First  Part. 

1.  Every  account  sliall  be  made  in  such  form  and  .shall  contain  all  such  particulars 
as  the  Commissioners  shall  require. 


406  STAMPS 

2.  Every  account  shall  be  a  full  and  true  account  of  all  stock  and  funded  deLt  exist- 
ing at  the  time  of  the  delivery  of  the  account,  and  of  the  amount  thereof  in  respect  of 
which  payment  has  been  made,  if  the  whole  sums  payable  in  respect  thereof  have  not 
been  paid.  , 

3.  In  the  case  of  anv  companv  or  corporation  formed  within  the  United  Kingdom, 
and  having  registers  abroad  in  which  stock  or  funded  debt  may  be  registered,  the  stock 
or  funded  debt  of  such  company  or  corporation  shall  not  for  the  purposes  of  the  account 
include  the  stock  or  funded  debt  for  the  time  being  registered  abroad. 

4.  In  the  case  of  any  colonial  or  foreign  company  or  corporation  having  registers  in 
the  United  Kingdom  in  which  stock  or  funded  del)t  are  registered,  the  stock  or  funded 
debt  for  the  time  being  registered  in  the  United  Kingdom  shall  for  the  purposes  of  the 
account  be  regarded  as  constituting  all  the  stock  or  funded  debt  of  the  company  or 
corporation. 

5.  Where  the  first  account  shall  be  delivered  at  any  time  between  two  half-yearly 
days,  such  account  shall  be  charged  with  an  amount  of  duty  jiroportionate  to  the  period 
between  the  date  of  the  delivery  of  the  account  and  the  first  succeeding  half-yearly  day. 

6.  Accounts  shall  be  delivered  to  tlie  Commissioners  on  or  within  seven  days  before 
the  first  dav  of  February  and  the  first  day  of  August  in  each  year. 

7.  The  duty  shall  be  paid  upon  the  delivery  of  the  account. 

Second  Part. 

1.  Every  account  shall  be  made  in  such  form  and  shall  contain  all  such  particulars 
as  the  Commissioners  shall  require. 

2.  Every  account  shall  be  a  full  and  true  account  of  all  unstamped  policies  of  insur- 
ance against  accident  issued  during  the  quarter  of  a  year  ending  on  the  quarterly  day 
next  ]ireceding  the  delivery  thereof,  and  of  all  sums  of  money  received  for  or  in  respect 
of  such  policies  so  issued  during  that  quarter,  and  of  all  sums  of  money  received  and  not 
already  accounted  for  in  respect  of  any  other  unstamped  policies  of  insurance  against 
accident  issued  at  any  time  before  the  commencement  of  that  quarter. 

3.  Accounts  shall'  be  delivered  to  the  Commissioners  within  twenty  days  after  the 
fifth  day  of  April,  the  fifth  day  of  July,  the  tenth  day  of  October,  and  the  fifth  day  of 
January  in  each  year. 

4.  the  duty  shall  be  paid  upon  the  delivery  of  the  account. 

As  to  composition  in  the  case  of  the  notes  and  bills  of  Scots  bankers, 
see  16  &  17  Vict.  c.  63,  s.  7. 

(12)  Miscellaneous  Provisions. 

(a)  Assignation  of  Policy  to  Insurance  Company.  —  Sec.  118  of  the 
Act  provides  that — • 

(1)  No  assignment  of  a  policy  of  life  insurance  shall  confer  on  the  assignee  therein 
named,  his  executors,  administrators,  or  assigns,  any  right  to  sue  for  the  moneys  assured 
or  secured  thereby,  or  to  give  a  valid  discharge  for  the  same,  or  any  part  thereof,  unless 
the  assignment  is  duly  stamped,  and  no  payment  shall  be  made  to  any  person  claiming 
under  any  such  assignment  unless  the  same  is  duly  stamped. 

(2)  If  any  payment  is  made  in  contravention  of  this  section,  the  stamp  duty  not 
paid  upon  the  assignment,  together  with  the  penalty  payable  on  stamping  the  same, 
shall  be  a  debt  due  to  Her  Majesty  from  the  person  by  whom  the  payment  is  made. 

Where  assignments,  however  numerous,  are  necessary  links  in  the 
assignee's  title,  the  insurance  company  should  satisfy  itself  that  ^  these  are 
all  duly  stamped.  Where  the  assured  or  an  assignee  has  been  divested  of, 
and  subsequently  reinvested  in  the  policy,  it  is  not  necessary  in  dealing 
with  a  subsequent  assignation  to  consider  the  stamping  of  the  reinstating 
instrument. 

{h)  Instruments  relating  to  Crown  property,  or  to  the  private  property  of 
the  Sovereign,  are,  in  the  absence  of  express  provision  to  the  contrary,  to 
be  stamped  as  if  the  property  belonged  to  a  subject  (s.  119). 

(c)  Instruments  charged  spiccifically  with  the  duty  of  '35s.  by  any  Act 
passed  prior  to  1st  January  1871,  and  not  relating  to  stamp  duty,  shall  be 
chargeable  with  10s.  only  (s.  120). 

(13)  BccovevT/ of  Pcncdtics. — These  are  to  be  sued  for 'and  recovered  by 


STAMrS  407 

information  in  Scotland  in  the  name  of  the  Lord  Advocate  (s.  121  •  see 
Court  of  Exchequer  (Scotland)  Act,  1856,  19  &  20  Vict.  c.  56,  and'^f^i' 
Gen.  V.  Moncrciff,  1848,  10  D.  987).  As  to  the  time  within  which  pro- 
ceedings must  be  commenced,  see  Ld.  Adv.  v.  Sawcrs,  infra.  Observe 
that  the  Commissioners  are  empowered  to  reward  informers,  to  mitigate 
lines,  and  to  stay  proceedings  (53  &  54  Vict.  c.  21,  ss.  32  35)  "See 
Zd.  Adv.  V.  Thomson,  1897,  24  E.  543;  Ld.  Adv.  v.  Sawcrs,  1897,^25  E.  242. 

(14)  Sale  of  Stami^s ;  Discounts  to  Purchasers;  Stamp  Offhices ;  Bccovcry  of 
Money  received  for  Duty;  Allowance  for  Spoiled  Stamps.— The  Stamp  Duties 
Management  Act,  1891,  applies  to  all  stamp  duties  and  to  all  fees  collected 
by  means  of  stamps  (s.  1),  and  to  excise  labels  (s.  23).  It  makes  provision 
for  the  sale  of  stamps  (ss.  3-8),  and  deals  with  offences  relating  to  stamps 
(ss.  13-21 ;  see  61  &  62  Vict.  c.  46.  The  Board  of  Inland  Eevenue  have 
issued  a  circular,  dated  21st  January  1898,  stating  the  conditions  on  which 
illustrations  of  postage  stamps  are  permissible;  see  Dickens,  [1896]  2  Q.  B. 
310),  with  the  discontinuance  of  dies  (s.  22;  see  61  &  62  Vict.  c.  46), 
and  with  the  mode  of  making  statutory  declarations  (s.  24;  see  61  &  62: 
Vict.  c.  46),  and  of  granting  licences  (s.  25),  in  relation  to  stamp  duties. 
Sec.  8  provides  that  such  discount  shall  be  allowed  to  purchasers  of 
stamps  as  the  Treasury  may  direct.  The  following  discounts  are  allowed  on 
the  pm'chase  of  stamps  at  the  Inland  Ifevenue  Office,  Edinburgh: — (1)  On 
impressed  bills  (not  exceeding  Is.  each).  Is.  for  every  complete  £5  worth  is 
allowed,  for  a  minimum  purchase  of  £10  worth,  or,  where  material  is  brought 
to  be  stamped,  of  £20  worth  ;  (2)  on  transfers  (wliere  forms  arc  sup])licd  by 
the  purchaser),  impressed  bills  (exceeding  Is.  each),  foreign  bills  and  deeds. 
Is.  for  every  complete  £5  worth  is  allowed,  for  a  minimum  purchase  of  £50 
worth.  Discount  under  head  (1)  is  allowed  on  purchases  out  of  stock  at 
the  office  of  such  distributors  of  stamps  as  are  collectors  of  Inland  Eevenue. 
The  allowance  of  discount  (except  in  the  case  of  foreign  bills)  is  granted 
only  to  vendors  of  stamps  licensed  prior  to  March  1895.  Observe  tliat 
discount  is  not  allowed  on  stamps  for  denoting  the  fixed  duty  of  Id.,  on 
stamps  of  £10  and  u])wards,  on  stamps  to  be  impressed  on  appro]>riated 
forms  (except  certain  bills  of  lading),  on  stamps  to  be  impressed  on  executed 
instruments,  on  postage  stamps,  on  patent  medicine  labels,  on  estate  duty 
adhesive  stamps,  and  on  fee  stamps  generally. 

Further,  the  Act  of  1891  provides  that  moneys  received  for  duty  and 
not  appropriated  thereto,  shall  Ije  recoverable  in  the  Court  of  Exchequer 
from  tlie  receiver  (s.  2).     Sec.  9  provides  as  follows : — 

Subject  to  such  regulations  a.s  tlie  Commissioners  may  tliiiik  iirojicr  to  make,  qikI  to 
tlie  production  of  sucli  evidence  Ijy  statutory  declaration  or  otherwise  as  the  Com- 
missioners may  require,  allowance  is  to  he  made  by  the  Connnissioners  for  stamps 
spoiled  in  tlie  cases  hereinafter  mentioned  ;  (that  is  to  say,) 

(1)  The  stam]>  on  any  matfrial  iiiadvcrt<'ntly  and  uiidcsij^'iicdlv  spoiled,  nMitcvaled, 

or  by  any  means  rendered  unlit  for  tin'  purpose  intended,  before  the  nialerial 
bears  the  signature  of  any  person  or  any  instrument  written  thereon  is 
executed  by  any  party  : 

(2)  Any  adlic.^iv(!  staiii])  wlii<h  lia.s  been  inadvertently  and  undesignedly  spoiled 

or  n!ndiied  unfit  fur  use  and  has  not  in  the  opinion  of  the  Commissioner 
been  allixed  to  any  material  : 

(3)  Any  adhesive  stamp  representing  a  fee  capable  of  being  collected  by  means  of 

Biirh  staiMj)  which  has  been  allixed  to  mati-rial,  jirovided  that  a  (•crtificate 
from  the  proper  oHicer  is  i)ro(luced  to  the  effect  that  the  stam]»  should  bo 
alh)Wed. 

(1)  The  stamp  on  any  bill  of  cxehange  signed  by  or  on  liehalf  of  the  <lrawer  which 
lias  not  been  accejited  or  made  use  of  in  any  manner  whatever  or  delivered 
out  of  his  hands  f^or  any  purpose  other  than  ijy  way  of  tender  for  aeeej)(ance. 

(.'»)  The  stamp  on  any  promissory  note  signed  by  or  on  behalf  of  the  maker  which 


408  STAMrS 

has  not  been  made  use  of  in  any  manner  whatever  or  delivered  out  of  his 
hands. 
(6)  The  stamp  on  any  bill  of  exchange  or  promissory  note  which  from  any 
omission  or  error  has  been  spoiled  or  rendered  useless,  although  the  same, 
being  a  bill  of  exchange,  may  have  been  accepted  or  indorsed,  or,  being  a 
promissory  note,  may  have  been  delivered  to  the  payee,  provided  that 
another  completed  and  duly  stamped  bill  of  exchange  or  promissory  note  is 
produced  identical  in  every  particular,  except  in  the  correction  of  the  error 
or  omission,  with  the  spoiled  bill  or  note  : 
(7)  The  stamp  used  for  any  of  the  following  instruments  ;  that  is  to  say, 

(a)  An  instrument  executed  by  any  party  thereto,  but  afterwards  found 

to  be  absolutely  void  from  the  beginning  : 

(b)  An  instrument  executed  by  any  party  thereto,  but  afterwards  found 

unfit,  by  reason  of  any  "error  or  mistake  therein,  for  the  purpose 
originally  intended  : 

(c)  An  instrument  executed  by  any  party  thereto  which  has  not  been 

made  use  of  for  any  purpose  whatever,  and  which  by  reason  of  the 
inability  or  refusal  of  some  necessary  party  to  sign  the  same,  or  to 
complete  the  transaction  according  to  the  instrument,  is  incomplete 
and  insufficient  for  the  purpose  for  which  it  was  intended. 

(d)  An  instrument  executed  1:>3'  any  party  thereto,  which  by  reason  of  the 

refusal  of  any  person  to  act  under  the  same,  or  for  want  of  enrolment 
or  registration  within  the  time  required  by  law,  fails  of  the  intended 
jiurpose  or  becomes  void. 

(e)  An  instrument  executed  by  any  party  thereto  which  is  inadvertently 

and  undesignedly  spoiled,  and  in  lieu  whereof  another  instrument 
made  between  the  same  parties  and  for  the  same  purpose  is  executed 
and  duly  stamped,  or  which  becomes  iiseless  in  consequence  of  the 
transaction  intended  to  be  thereby  effected  being  effected  by  some 
other  instrument  duly  stamped  : 
Provided  as  follows  :  — 

(a)  That  the  application  for  relief  is  made  within  two  years  (61  &  62  Vict.  c.  46, 
s.  13)  after  the  stamp  has  been  spoiled  or  become  useless,  or  in  the  case  of  an 
executed  instrument,  after  the  date  of  the  instrument,  or,  if  it  is  not  dated, 
within  two  years  (ib.)  after  the  execution  thereof  by  the  person  by  whom  it 
was  first  or  alone  executed  or  within  such  further  time  as  the  Commissioners 
may  pi'escribe  in  the  case  of  any  instrument  sent  abroad  for  execution  or 
when  from  unavoidable  circumstances  any  instrument  for  which  another  has 
been  substituted  cannot  he  produced  within  the  said  period  ; 
(h)  That  in  the  case  of  an  executed  instrument  no  legal  proceeding  has  been  com- 
menced in  which  the  instrument  could  or  would  have  been  given  or  offered 
in  evidence,  and  that  the  instrument  is  given  up  to  be  cancelled  ; 
(c)  That  in  the  case  of  stamps  used  for  medicines  or  playing  cards,  the  medicines 
or  cards  bearing  the  stamjjs  are  produced  to  an  officer  and  the  stamps  are 
removed  therefrom  in  his  presence. 

The  Inland  Revenue  Office,  No.  10  Waterloo  Place,  Edinburgh,  is  open 
for  the  allowance  of  spoiled  stamps  every  day  except  Saturday,  from 
10  a.m.  to  3  p.m.,  Saturday  10  to  12.  The  distributors,  most  of  the  sub- 
distributors of  stamps,  and  certain  postmasters  also  receive  spoiled  stamps 
for  allowance. 

A  supply  of  forms  of  affidavit  is  kept  at  the  Inland  Eevenue  Office,  and 
by  the  distributors  of  stamps  and  by  most  of  the  sub-distributors  and 
certain  postmasters,  and  claimants  may  attend  at  the  Inland  Eevenue  Office 
and  have  the  affidavits  taken ;  or  they  may  take  the  oath  before  a  justice 
of  the  peace,  and  shortly  afterwards  lodge  the  affidavits  and  the  stamps  with 
any  of  the  above  officers.  If  not  brought  within  ten  days  or  a  fortnight 
afterwards,  the  stamp  will  not  be  allowed  without  a  fresh  affidavit.  If  the 
claim  be  lodged  at  Edinburgh,  a  ticket  is  issued  stating  that  application  is 
to  be  made  for  information  as  to  the  result  of  such  claim  after  the  next 
Monday,  and  within  six  weeks  from  the  date  of  the  ticket.  If  the  claim  be 
lodged  with  a  distributor  or  sub-distributor  or  postmaster,  a  ticket  is  issued 
stating  that  application  is  to  be  made  regarding  such  claim  after  a  specified 


STAMPS  409 

date,  and  within  six  weeks  from  the  date  of  the  ticket.  If  application  be 
not  made  within  that  time,  the  claim  will  be  forfeited,  and  no  excuse  will 
be  accepted.  "• 

Sec.  10  provides  as  follows : — 

"\^'lieii  any  person  has  inadvertently  used  for  an  instrument  liaLle  to  duty  a  stamp  of 
greater  value  than  was  necessarj^,  or  has  inadvertently  used  a  stamp  for  an  instrument 
not  liable  to  any  duty,  the  Commissioners  may,  on  application  made  within  two  years 
(61  &  62  Vict.  c.  46,  s.  13)  after  the  date  of  the  instrument,  or,  if  it  is  not  dated,  within 
two  years  {ib.)  after  the  execution  thereof  by  the  person  by  whom  it  was  first  or  alone 
executed,  and  upon  the  instrument,  if  liable  to  duty,  being  stamped  with  the  pi'oper 
duty,  cancel  and  allow  as  spoiled  the  stamp  so  misused. 

Sec.  1 1  provides  as  follows  : — 

In  any  case  in  which  allowance  is  made  for  spoiled  or  misused  stamps  the  Commis- 
sioners may  give  in  lieu  thereof  other  stamps  of  the  same  denomination  and  value,  or  if 
required,  and  they  think  proper,  stamps  of  any  other  denomination  to  the  same  amount 
in  value,  or  in  their  discretion,  the  same  value  in  money,  deducting  therefrom  the 
discount  allowed  on  the  purchase  of  stamps  of  the  like  description. 

Sec.  12,  as  amended  by  61  &  62  Vict.  c.  46,  s.  13,  provides  that  a  stamp 
not  required  may  be  repurchased  by  the  Commissioners  on  deduction  of  the 
proper  discount,  delivery  of  the  stamp  for  cancellation,  and  proof  that  it 
was  purchased  from  a  person  duly  appointed  or  licensed  to  sell  the  same, 
within  two  years  next  preceding  the  application,  and  with  a  bond  fide 
intention  to  use  it. 

(15)  Stamp  Duties  iinposcd  hy  Ads  other  than  the  Stamp  Act,  1891,  and 
Amending  Statutes. — (a)  The  collection  of  the  various  death  duties  by  means 
of  stamps  is  regulated  by  the  Acts  imposing  the  duties,  (h)  The  stamp 
duty-  in  the  case  of  licences  to  bankers  is  imposed  by  55  Geo.  iii.  c.  184, 
s.  24,  and  Sched.  1  (see  also  7  Geo.  iv.  c.  67,  s.  13 ;  7  &  8  Vict.  c.  32,  s.  22 ; 
and  National  Bank  of  Scotland,  1893,  30  S.  L.  E.  579).  (c)  As  to  the  stamp 
duty  on  cards,  see  25  Vict.  c.  22,  ss.  28, 29,  and  32-37  ;  16  Vict.  c.  107,  ss.  114- 
116 ;  and  as  to  recovery,  54  &  55  Vict.  c.  38,  s.  26 ;  and  {d)  on  medicines, 
see  44  Geo.  iii.  c.  98,  Sched.  B ;  52  Geo.  in.  c.  150,  s.  1,  Sehcd.  (as  to  exemp- 
tions, see  52  Geo.  iii.  c.  150,  Sched.;  55  Geo.  iii.  c.  184,  s.  54;  as  to  duties, 
labels,  and  penalties,  see  42  Geo.  in.  c.  56,  ss.  3,  11,  13-15;  52  Geo.  in. 
c.  150,  s.  2;  as  to  recovery,  54  &  55  Vict.  c.  38,  s.  26).  (c)  As  to  the 
collection  of  fees  in  Scots  law  courts  and  (/')  in  pul)Hc  olliccs  by 
means  of  stamps,  see  the  Courts  of  Law  Fees  (Scotland)  Act,  1868 ;  the 
Eevenue  Act,  1898;  and  the  Public  Office  Fees  Act,  1879.  {y)  As  to 
similar  provision  regarding  tlie  fees  chargeable  by  the  Inclosure  Com- 
missioners, sec  31  &  32  Vict.  c.  89,  s.  6.  {h)  As  to  ])0stage  duties,  sec 
Po.ST  Office.  By  the  Companies  Act,  1862  (25  &  26  Vict.  c.  89),  s.  11,  it 
is  provided  that  the  {i)  articles  of  association  and  the  (/)  memorandum  of 
association  are  to  be  stamped  as  deeds,  {k)  The  Alkali,  elc,  Works 
Ptegulation  Act,  1881  (44  &  45  Vict.  c.  37),  s.  11,  i)r..videH  tliat  the 
certificate  of  registration  of  an  alkali  work,  and  the  ccrtilicatc  of  registra- 
tion of  a  work  rcipiired  to  be  registered  not  being  an  alkali  work,  aie  liable 
to  a  duty  of  £5  and  £3  respectively.  (/)  The  Jfabitual  Dmnkards  Act, 
1879  (42  &  43  Vict.  c.  19),  s.  14,  imposes  a  duty  of  £5  upon  every  licence 
to  keep  a  retreat  (see  sees.  6,  14),  and  of  10s.  for  every  patient  above  ten 
whom  it  is  intended  to  a<lmit  into  the  retreat. 

(16)  Stamp  Dull/  on  Instruments,  Forms  of  which  arc  given  in  the  Con- 
veyancing {Scotland)  Act,  1874  (37  «&  38  Vict.  c.  94). 

Sched.  A.  Notice  to  superior  on  change  of  ownersliip — Nol  chan/cd  to  stamp  duty. 
Sched.  C.  Minute  for  effecting  consolidation  of  lancls — Deed  stamjj  duty,  lOs. 


410  STAMPS 

ScHED.  D.  Memorandum  of  allocation  of  feu-duty  where  there  is  no  augmentation  of 
feu-duty — Agreement  duty,  6d.  AVhere  there  is  augmentation — Conveyance  on 
sale  duty,  on  the  amount  thereof  only — (54  &  55  Vict.  c.  39,  s.  56  (2)). 

ScHED.  F.  Discharge  of  casualties — Cojiveyance  on  sale  stamf  duty. 

ScHED.  G.  Memorandum  constituting  a  feu-duty,  or  additional  feu-duty,  -where  the 
superior  has  elected  to  have  the  redemption-money  of  a  casualty  converted  into 
an  annual  sum — Conveyance  on  sale  stamp  duty  (54  &  55  Vict.  c.  39,  s.  56  (2)). 

N.B. — See  sec.  24  of  37  &  38  Vict.  c.  94,  where  the  casualty  is  converted 
into  feu-duty  at  the  constitution  of  the  feu-right. 

ScHED.    I.    Docquet   where    granter    of   deed  cannot  write — Not  charged  to  stamp 

duty. 
ScHED.  L.  No.  1.  Certificate  by  notary  public  where  lands  are  sold  under  heritable 
security  and  no  surplus  emerges  : 
No.  2.  Certificate    by    notary   public   where  lands  have  been  redeemed 
of  heritable  security,  but  discharge   cannot  be   obtained — Stamp 
duty,  5s. 
SCHED.  M.  Assignation  of  right  of  relief,  etc.  (37  &  38  Vict.  c.  94,  s.  50)— Deed  stamp 

duty,  10s. 
ScHED.  N.  Instrument  by  notary  public  in  favour  of  a  general  dispones  or  assignee, 
in  right  of  a  heritable  security — Stamp  duty,  53. 

(17)  General  Exemiitions from  all  Stamp  Duties. 

(1)  Transfers  of  shares  in  the  Government  or  Parliamentary  stocks  or  funds. 

(2)  Instruments  for  the  sale,  transfer,  or  other  disposition  either  absolutely  or  by 

way  of  mortgage,  or  otherwise,  of  any  ship  or  vessel,  or  any  part,  interest,, 
share,  or  property  of  or  in  any  ship  or  vessel. 

This  exemption  covers  bottomry  bonds  and  instruments  for  the  sale,  etc., 
of  freight  (see  Willis,  7  C.  B.  N.  S.  340,  29  L.  J.  C.  P.  194,  per  Erie,  C.  J.), 
but  does  not  include  instruments  relating  to  shares  in  a  shipping  company. 

(3)  Instruments  of  apprenticeship,  bonds,  contracts,  and  agreements  entered  into  in 

the  United  Kingdom  for  or  relating  to  the  service  in  any  of  Her  Majesty's 
colonies  or  possessions  abroad  of  any  person  as  an  artificer,  clerk,  domestic 
servant,  handicraftsman,  mechanic,  gardener,  servant  in  husbandry,  or  labourer. 

(4)  Testaments,  testamentary  instruments,  and  dispositions  mortis  causa  in  Scotland. 

(5)  Bonds  given  to  Sheriff's  or  other  j^ersons  in  Ireland  upon  the  replevy  of  any  good* 

or  chattels,  and  assignments  of  such  bonds. 

(6)  Instruments  made  by,  to,  or  with  the  Commissioners  of  Works  for  any  of  the 

purposes  of  the  Act  15  &  16  Vict.  c.  28. 

(18)  Special  Exemptions   in   Statutes  not   otherwise   relating   to   Stamp 
Duties. 

(i.)  The  Banlcrxiptcy  Act,  1883  (46  &  47  Vict.  c.  52),  s.  144. 
(ii.)  The  Bankruptcy  {Scotland)  Act,  1856  (19  &  20  Vict.  c.  79),  s.  184, 
exempts 

All  conveyances  or  assignations,  instruments,  discharges,  writings,  or  deeds  relating 
solely  to  the  estate  belonging  to  any  bankrupt  against  whom  sequestration  has  been  or 
may  be  awarded,  either  under  this  or  any  former  Act,  and  which  estate,  after  the  execu- 
tion of  such  conveyances,  etc.,  shall  be  and  remain  the  property  of  such  bankrupt  for  the 
benefit  of  his  creditors  or  the  trustees  appointed  or  chosen  vmder  or  by  virtue  of  such 
sequestration,  and  all  discharges  to  such  bankrupt,  and  all  deeds,  assignations,  instru- 
ments or  writings  for  reinvesting  such  bankrupt  in  the  estate,  and  all  powers  of  attorney, 
commissions,  factories,  oaths,  affidavits,  articles  of  roup  or  sale,  submissions,  decrees- 
arbitral  and  all  other  instruments  and  writings  Avhatsoever  relating  solely  to  the  estate'  of 
such  bankrupt,  and  all  other  deeds  or  writings  forming  a  part  of  the  proceedings  ordered 
under  such  sequestration. 

In  practice,  receipts  given  to  a  trustee  in  bankruptcy  by  creditors  for 
dividends  are  not  treated  as  dutiable. 


s.  40O 


(iii.)  The  Irish  Bankrupt  and  Insolvent  Act,  1857  (20  &  21  Vict.  c.  60), 
00. 


STAMrS  411 

(iv.)  The  Barracks  Ad,  1890  (53  &  5-1  Yict.  c.  25),  s.  11,  exempts 

All  contracts,  conveyances,  and  otlier  documents  made  in  pursuance  of  or  with  a 
view  to  carrying  into  eftect  the  purposes  of  this  Act. 

(v.)  The  Building  Societies  Act,  1874  (37  &  38  Yict.  c.  42),  s.  41,  provides 
that 

No  rules  of  any  society  under  this  Act,  nor  an}*  copy  thereof,  nor  any  power, 
warrant,  or  letter  of  attorney  granted  or  to  be  granted  by  any  person  as  trustee  for  the 
society  for  the  transfer  of  any  share  in  the  public  funds  standing  in  his  name,  nor  any 
receipts  given  for  any  dividend  in  any  public  stock  or  fund,  or  interest  of  Excherpier 
bills,  nor  any  receipt,  nor  any  entry  in  any  book  of  receipt  for  money  deposited  in  the 
funds  of  the  society,  nor  for  any  money  received  by  any  member,  his  executors  or 
administrators,  assigns,  or  attorneys,  from  the  funds  of  the  society,  nor  any  transfer  of 
any  share,  nor  any  bond  or  other  security  to  l)e  given  to  or  on  account  of  the  society,  or 
by  any  officer  thereof,  nor  any  order  on  any  officer  for  payment  of  money  to  any  member, 
nor  any  appointment  of  any  agent,  nor  any  certificate  or  other  instrument  for  the 
revocation  of  any  such  a])pointment,  nor  any  other  instrument  or  document  whatever 
required  or  authorised  to  lie  given,  issued,  signed,  made,  or  produced  in  puisuance  of 
this  Act,  or  of  the  rules  of  the  society,  shall  be  subject  or  liable  to  or  charged  with  any 
stamp  duty  or  duties  whatsoever,  provided  that  the  exemption  shall  not  extend  to  any 
mortgage. 

The  exemption  covers  only  tliose  instruments  which  are  concerned  with 
transactions  which  form  part  of  the  internal  administration  of  the  society, 
or  are  required  to  render  it  capable  of  carrying  on  its  business.  See  Eoyal 
Liver  Friendly  Society,  L.  li.  5  Ex.  78;  Att.-Gcn.  v.  Gilpin,  L.  11.  6  Ex.  193;. 
Att.-Gen.  v.  rhillips,  24  L.  T.  R  832.  Building  societies  which  existed 
prior  to  1874,  and  did  not  register  under  the  1874  Act,  enjoy  an  exemption 
from  stamp  duty  on  mortgages  not  exceeding  £500  (Stamp  Act,  1891„ 
s.  89). 

(vi.)  The  Carriers  Act,  1830  (11  Geo.  iv.  and  1  Will.  iv.  c.  G8),  s.  3, 
exempts  receipts  given  by  carriers  for  packages  and  parcels  acknowledging 
the  same  to  have  been  insured  at  increased  rates. 

(vi.  (b))  The  Charitable  Loan  Societies  (Lreland)  Act  (G  &  7  Vict.  c.  91), 
s.  26. 

(vii.)  The  Church  Building  Act,  1822  (3  Geo.  iv.  c.  72),  s.  28.  Exemption 
is  incorporated  in  subsequent  Church  Building  Acts. 

(viii.)  Church  Building  (Scotland)  Act  (5  Geo.  iv.  c.  90),  s.  10,  exempts- 
certain  specified  conveyances  or  assurances,  and  any  lease  to  be  granted 
under  the  powers  contained  in  this  Act. 

(ix.)  The  Clergy  Residences  Eepair  Act,  177G  (17  Gen.  iii.  c.  53),  s.  15. 
Exemptions  incorporated  in  21  Geo.  in.  c.  GG ;  7  Geo.  iv.  c.  GG ;  1  &  2 
Vict.  c.  23 ;  28  &  29  Vict.  c.  GO ;  31  &  35  Vict.  c.  43  ;  and  44  &  45  Vict, 
c.  25. 

(x.)  The  Common  Law  Procedure  Act,  1854  (17  &  18  Vict.  c.  125),  s.  30. 

{\\.)  The  Common  Law  Procedure  Amendment  Act,  Lreland,  lSo(j  (19  & 
20  Vict.  c.  102),  s.  3G. 

(xii.)  Companies  (Colonial  Begistcrs)  Art,  1883  (4G  &  47  Vict.  c.  30),. 
s.  3  (7),  exempts  an  instrument  of  transfer  of  a  share  registered  in  a  colonial 
register  under  this  Act,  unless  executed  in  any  part  of  tlic  United  King- 
dom. 

(xiii.)  The  Consecration  of  Churchyards  Act,  18G7  (30  &  31  Vict.  c.  133),. 

8.  6. 

(xiv.)  The  Diseases  of  Animals  Act,  1894  (57  &  58  Vict.  c.  57),  s.  47„ 
exempts  any  ai»pointment,  certificate,  declaration,  or  licence  under  the  Act, 
and  certain  Orders  of  the  Board  of  Agriculture,  and  regulations  of  a  local 
authority. 


412  STAMPS 

(xv.)  Copyliold  Act,  1894  (57  &  58  Vict.  c.  46),  s.  53  (1). 

(xvi.)  Copyright  Act,  1842  (5  &  6  Vict.  c.  45),  s.  3;  exempts  any  assign- 
ment by  entry  in  the  Eegistry  Book  of  the  Stationers'  Company  of  the 
interest  of  the  registered  proprietor  of  the  copyright  in  a  book. 

(xvii.)  County  Treasurers  {Ireland)  Act,  1838  (1  &  2  Vict.  c.  53),  s.  1. 

(xviii.)  Crown  Lands  Act,  1829  (10  Geo.  iv.  c.  50)  (continued  by  14  &  15 
Vict.  c.  42,  s.  2,  and  applied  to  Scotland  by  3  &  4  Will.  iv.  c.  69,  s.  3),  s.  77. 

No  memorandum,  contract  or  agreement  to  lie  made  or  entered  into  by  or  with  tlie 
Commissioners  for  tlie  time  being  of  His  Majesty's  Woods,  Forests,  and  Land  Eevenues 
under  the  powers  and  provisions  of  this  Act,  for  the  sale,  purchase  or  exchange  of  any 
estates,  manors,  lordships,  messuages,  lands,  tenements,  rents  or  hereditaments,  or  any 
term  or  interest  therein,  l>y  the  said  Commissioners  .  .  . ;  nor  any  deed,  receipt  or  other 
instrument  which  shall  be  given,  granted,  entered  into,  executed  or  made  for  the 
purpose  of  carrying  into  effect  any  sale,  purchase  or  exchange  to  be  made  by  the  said 
Comtnmissioners  ....  under  the  powers  and  authorities  of  this  Act,  or  which  shall  be 
incidental  to  or  connected  with  any  such  purchase,  sale  or  exchange,  nor  any  grant  by 
the  said  Commissioners  under  the  authority  of  this  Act  ;  nor  any  lease  or  contract  or 
agreement  for  any  lease  or  leases  ;  nor  any  counterpart  of  any  lease  to  be  entered  into, 
made,  executed  or  granted  under  the  powers  and  authorities  of  this  Act ;  nor  any 
appointment  of  officers  to  be  made  by  the  said  Commissioners  under  the  authority 
hereof  ;  nor  any  certificate  for  any  gamekeeper  appointed  or  to  be  appointed  under  the 
authority  of  this  Act ;  nor  any  bond  to  be  given  by  or  for  any  receiver,  as  hereinafter 
mentioned,  or  by  or  for  any  other  officer  or  agent,  from  or  for  whom  security  may  be 
required  by  the  said  Commissioners,  shall  lie  subject  ....  to  any  ....  stamp  duty 
....  unless  the  same  be  specially  subjected  thereto  in  and  by  [any]  future  Act  or  Acts. 

By  14  &  15  Vict.  c.  42,  the  Commissioners  of  Works  and  Public  Buildings 
are  separated  from  the  Commissioners  of  Woods  and  Forests  and  Land 
Eevenues.  The  exemption  is  extended  to  foreshores,  see  29  &  30  Vict, 
c.  62  s.  10. 

fxi'x.)  Crown  Lands  Act,  1845  (8  &  9  Vict.  c.  99),  s.  5. 

(xx.)  Customs  and  Inland  Revenue  Act,  1889  (52  Vict.  c.  7),  s.  13. 

Any  person  may  cause  an  attested  copy  (which  shall  be  exempt  from  stamp  duty) 
of  any  document  which  creates  a  ]ial)iiity  for  payment  of  any  succession  duty  or 
duty  hereinbefore  imposed,  etc.,  to  be  deposited  witli  the  Commissioners  of  Inland 
Revenue.  .  .  . 

(xxi.)  Dehtors  {Scotland)  Act,  1880  (43  &  44  Vict.  c.  34),  s.  11. 

No  fee  fund  or  other  dues  of  Court  shall  be  exigible  in  respect  of  any  proceedings 
under  the  Cessio  Acts  or  this  Act ;  nor  shall  any  stamp  duty  or  other  Government  duty 
be  exigible  in  respect  of  any  disposition  which  ithe  deljtor  sluill  be  required  or  decerned 
to  execute  in  terms  thereof,  any  law  or  statute  to  the  contrary  notwithstanding. 

(xxii.)  Dispensary  Houses  {Ireland)  Act,  1879  (42  &  43  Vict.  c.  25),  s.  14. 

(xxiii.)  East  India  Loan  Act,  1893  (56  &  57  Vict.  c.  70),  s.  16,  applies 
the  provisions  of  5  &  6  Will.  iv.  c.  04,  s.  4,  as  to  composition  by  the  East 
India  Company  in  lieu  of  stamp  duty  on  their  bonds,  and  extension  of  the 
exemption  of  their  bonds,  to  all  bonds,  debentures,  and  bills  to  be  issued 
by  the  Secretary  of  State  under  the  authority  of  this  or  any  previous  Act. 

(xxiv.)  Education  {Scotland)  Act,  1872  (35  &  30  Vict.  c.  62),  s.  39, 
exempts  the  deed  of  conveyance  by  whicli  the  persons  vested  with  the  title 
recorded  in  the  Ptegister  of  Sasines  transfer  any  school,  with  the  site  and 
house  and  land,  if  any,  held  therewith  to  any  school  board. 

(xxv.)  Friendly  Societies  Ad,  1896  (59  &  60  Vict.  c.  25),  s.  33,  exempts: 
(a)  Draft  or  order  or  receipt  given  by  or  to  a  registered  society  or  branch 
in  respect  of  money  payable  by  virtue  of  its  rules  or  of  the  Act;  (b)  letter 
or  power  of  attorney  granted  by  any  person  as  trustee  for  the  transfer  of 
any  money  of  a  registered  society  or  branch  invested  in  his  name  in  the 


STAMPS  41 


o 


public  funds ;  (c)  bond  given  to  or  on  account  of  a  registered  society  or 
branch,  or  by  the  treasurer  or  other  othcer  thereof ;  {d)  policy  of  insurance 
or  appointment  or  revocation  of  appointment  of  agent,  or  other  document 
required  or  authorised  liy  the  Act  or  by  the  rules  of  a  registered  society  or 
branch.  The  scope  of  the  exemption  is  limited  as  in  the  case  of  the  Euildino- 
Societies  Act,  1874,  vide  siqira. 

(xxvi.)  The  Glehe  Loans  (Ireland)  Aet,  1870  (33  &  34  Yict.  c.  112),  s.  8. 

(xxvii.)  Indosure  Act,  1845  (8  &  9  Vict.  c.  118),  s.  163. 

(xxviii.)  Income  Tax  Act,  1842  (5  &  6  Vict.  c.  35)  s.  179,  exempts  any 
receipt,  certificate  of  payment,  contract  of  composition,  affidavit,  appraise- 
ment, or  valuation  made  or  given  in  pursuance  and  for  the  purposes  of  the 
Act. 

(xxix.)  Indian  Prize  Money  Act,  1866  (29  &  30  Vict.  c.  47),  s.  8,  exempts 
any  order  for  payment  of  prize  money  for  any  sum  less  than  40s. 

(xxx.)  Indian  Sceurities  Act,  1860  (23  Vict.  c.  5),  s.  2,  exempts  any 
transfer  of  any  part  of  Indian  Government  Loans  registered  and  transfer- 
able in  the  books  of  the  Secretary  of  State  in  Council  in  London,  or  in  the 
books  of  the  Bank  of  England. 

(xxxi.)  Landed  Property  Improvement  {Ireland)  Act,  1847  (10  &  11  Vict. 
c.  32),  s.  59. 

(xxxii.)  Land  Tax  Eedemption  Act,  1802  (42  Geo.  iii.  c.  116),  s.  68, 
provides  that — 

"  Where  the  moneys  to  be  paid  as  the  consideration  for  any  sale,  mortgage,  or  grant 
to  be  made  by  virtue  of  this  Act  by  any  person  or  i^ersons  (otlier  than  bodies  j^olitic  or 
corporate,  or  companies,  for  feoffees  or  trustees  for  charitable  or  otlier  public  purposes) 
shall  not  exceed  the  sum  of  £1000,  the  deed  of  sale,  mortgage,  or  grant,  or  the  enrolment 
thereof,  and  in  cases  of  cojiyliold  or  customary  estates  the  deed  of  sale  or  of  grant,  .... 
or  any  copy  of  the  entry  upon  the  Court  rolls  of  such  deed  of  sale  or  grant  ....  shall 
not  be  liable  to  any  stamp  duty  whatever." 

Sec.  81  exempts  every  "deed  or  instrument  whatever  whereby  any  sale,  enfranchise- 
ment, mortgage,  or  graiit  shall  be  made  of  or  out  of  any  manors,  messuages,  lands, 
tenements,  or  hereditaments  under  the  authority  of  the  said  last-mentioned  Commis- 
sioners (for  regulating  sales,  etc).,  by  virtue  of  the  Act." 

Sec.  107  exempts  every  obligation  to  His  Majesty,  in  pursuance  of  the  Act. 

Sec.  173  provides  that  "no  contract  entered  into  for  the  redemption  or  purchase  of 
any  land  tax,  nor  any  assignment  of  any  such  contract  or  land  tax,  by  virtue  of  the  said 
recited  Acts  or  this  Act,  nor  any  copy  of  the  register  thereof,  nor  any  certificate  or 
receipt  which  shall  be  given  by  virtue  of  the  said  recited  Acts  or  of  this  Act,  nor  any 
transfer  of  any  stock  in  the  funds  which  shall  Ije  made  l»y  virtue  of  the  said  recited 
Acts  or  of  this  Act  to  the  Commissioners  for  the  Eeduction  of  the  National  Debt,  or 
any  letter  of  attorney  authorising  any  person  or  persons  to  transfer  any  such  stock  to 
the  said  Commissioners,  or  to  accept  any  such  stock  previously  to  and  for  the  purpose 
of  transferring  the  same  to  them,  nor  any  affidavits  whatever  to  Ije  made  in  ])ursuauce 
of  the  said  recited  Acts  or  of  this  Act,  shall  be  liable  to  any  stamp  duty  wliatever." 

(xxxiii.)  Land  Tax  Redemption  Act,  1805  (45  Geo.  III.  c.  77),  ss.  1,  107, 
173. 

(xxxiii.  (b))  Legacy  Duty  Act,  1796  (36  Geo.  III.  c.  52),  s.  41,  exempts 
receipts  duly  stamped  for  legacy  duty  purposes  from  all  other  stamp 
duties. 

(xxxiv.)  Loan  Societies  Act,  1840  (3  &  4  Yict.  c.  110),  ss.  9.  12,  14. 

(xxxv.)  Local  Loans  Act,  1875  (38  &  39  Vict.  c.  83),  s.  19. 

(xxxvi.)  London  Hackney  Carriaye  Act,  1843  (6  &  7  Vict.  c.  86),  s.  23. 

(xxxvii.)  Merrhnnt  Shipjnny  Act,  1894(57  &  58  Vict.  c.  60),  exempts 
every  indenture  of  apprenticeship,  wliich  must  bo  executed  in  (hiplicate 
(s.  108  (1)) ;  bill  for  wages  of  seamen  volunteering  into  the  navy,  drawn  upon 
the  owner  and  payable  at  sight  to  the  Accountant-General  of  the  Navy 
(s.  190  (1))  ;  the  bond  given  by  tlic  master  of  an  emigrant  ship,  which  mu.st 


414  STAMPS 

be  executed  in  duplicate  (s.  309  (2))  ;  contract  tickets  for  passengers  under 
sec.  320  (4) ;  the  bond  given  by  a  passage  broker,  which  must  be  renewed 
on  each  occasion  of  obtaining  a  licence  (s.  342  (2)) ;  all  indentures  and 
agreements,  for  the  sea-fishing  service,  made  in  conformity  with  Part  IV. 
(Fishing  Boats)  of  the  Act  (s.  395  (7)) ;  any  bond,  statement,  agreement,  or 
o'ther  document  made  or  executed  in  pursuance  of  Part  IX.  of  the  Act, 
relating  to  salvage  by  Her  Majesty's  ships,  if  made  or  executed  out  of  the 
United  Kingdom  (s.  563) ;  any  instruments  used  for  carrying  into  effect 
Part  I.  of  the  Act  (s.  721) ;  any  instruments  used  by  or  under  the  direction 
of  the  Board  of  Trade  in  carrying  into  effect  Parts  II.,  V.,  XL,  and  XII.  of 
the  Act  (i&.) ;  and  any  instruments  which  are  by  those  parts  of  the  Act 
required  to  be  in  a  form  approved  by  the  Board  of  Trade,  if  made  in  that 
form  (ih.). 

(xxxviii.)  Metropolitan  Board  of  WorJcs  Loan  Act  (33  &  34  Vict.  c.  24), 
s.  5. 

(xxxix.)  Military  Forces  Localisation  Act,  1872  (35  &  36  Vict.  c.  68), 
s.  12,  exempts  all  contracts,  conveyances,  and  other  documents  made  in 
pursuance  o''  the  Act. 

(xl.)  Mildia  Laiv  Aviendment  Act,  1854  (17  &  18  Vict.  c.  105),  s.  20. 
(xli.)  Militia  {Scotland)  Act,  1854  (17  &  18  Vict.  c.  106),  s.  41,  exempts 
all   conveyances,  leases,  bonds,  contracts,  receipts,  and  other   deeds   and 
instruments  made  for  giving  effect  to  the  Act. 

(xlii.)  Municipal  Corporations  in  England  and  Wcdes,  1882  (45  &  46 
Vict.  c.  50),  ss.  45  (9),  168  (10). 

(xliii.)  Mitnicipal  Corporations  {Ireland)  Act,  1840  (3  &  4  Vict,  c,  108), 
s.  48. 

(xliv.)  National  Deht  Redemption  Act,  1893  (56  &  57  Vict.  c.  64), 
s.  4  (2),  exempts  a  power  of  attorney  given  exclusively  for  the  purpose  of 
authorising  the  receipt  for  money  payable  on  redemption  under  the  Act. 

(xlv.)  (xlvi.)  Naval  Agency  and  Bistrihidion  Act  (27  &  28  Vict.  c.  24),  s.  16, 
and  Naval  and  Marine  Fay  a7id  Fensions  Act  (28  &  29  Vict.  c.  73),  s.  6,  exempt 
all  bills,  orders,  receipts,  and  other  instruments  drawn,  given,  or  made  under 
the  authority  or  in  pursuance  of  an  Order  in  Council  under  either  Act  by, 
to,  or  upon  any  person  in  the  service  of  Her  Majesty  or  the  Admiralty. 

(xlvii.)  New  General  Fost  Office,  Edinlurgh,  Act,  1858  (21  &  22  Vict. 
c.  40),  s.  20,  exempts  any  deed,  bond,  discharge,  receipt,  or  other  instrument 
made  or  executed  by,  to,  or  with  the  Commissioners,  or  otherwise,  for  the 
purposes  of  the  Act,  unless  such  instrument  be  specially  charged  by  any 
future  Act. 

(xlvii.  (I))  Farochial  Stipends  {Scotland)  Act  (50  Geo.  III.  c.  84),  s.  22, 
exempts  receipts  for  the  sums  of  money  payable  under  the  Act. 

(xlviii.)  FawnhroJcers  Act,  1872  (35  &  36  Vict.  c.  93),  s.  15,  exempts  a 
pawnbroker's  receipt  for  the  amount  of  loan  and  profit  paid  to  him,  unless 
the  profit  amounts  to  40s.  A  special  contract  pawn-ticket  or  the  duplicate 
thereof  (in  accordance  with  Form  No.  VII.  in  Sched.  III.)  is  exempt 
(s.  24). 

(xlix.)  Fensions  and  Yeomanry  Fay  Act,  1884  (47  &  48  Vict.  c.  55), 
s.  5. 

Every  order,  receipt,  affidavit,  and  document  used  in  pursuance  of  any  warrant, 
order,  or  regulation  of  Her  Majesty,  or  a  Secretarj--  of  State,  wlietlier  made  in  pursuance 
of  this  Act  or  otherwise,  in  relation  to  the  payment  of  any  pension  in  respect  of  military 
service,  including  service  in  any  of  the  auxiliary  forces,  shall,  unless  otherwise  provided 
Ijy  such  warrant,  etc.,  or  by  the  regulations  general  or  special  of  a  Secretary-  of  State,  be 
exempt  from  stamp  duty. 


STAMPS  415 

(1.)  Poor  Law  Amendment  Act,  1834  (4  &  5  "Will.  iv.  c.  76),  s.  86. 

(H.)  Poor  Lmo  Amendment  Act,  1844  (7  &  8  Yict.  c.  101),  s.  61.  Sec. 
74  provides  that  this  Act  shall  be  construed  as  one  Act  with  5  &  6  Vict. 
c.  57,  and  with  the  previous  Acts  thereby  required  to  be  construed  as  one 
Act. 

(lii.)  Poor  Belief  {Ireland)  Act,  1838  (1  &  2  Yict.  c.  56),  s.  96. 

(liii.)  Post  Office  Land  Act,  1881  (44  &  45  Vict.  c.  20),  s.  5. 

Every  deed,  instrument,  receipt,  or  document  made  or  executed  for  tlie  purpose  of 
the  Post  Office  by,  to,  or  with  Her  Majesty  or  any  officer  of  the  Post  Oltice,  shall  be 
exempt  from  any  stamp  duty  .  .  .  except  where  such  duty  is  declared  by  the  deed,  etc., 
or  by  some  meiiioranduni  indorsed.thereon,  to  be  payable  by  some  person  other  than  the 
Postmaster-General,  and  except  so  far  as  any  future  Act  specifically  charges  the 
same. 

(liv.)  Post  Office  {Duties)  Aet,  1840  (3  &  4  Vict.  c.  96),  s.  38,  has  been 
held  to  sanction  the  issue  of  a  post  office  order  unstamped  {Gilchrist,  Car.  & 
M.  224),  and  this  exemption  is  recognised  in  the  Post  Office  {Money  Orders) 
Act,  1880  (43  &  44  Vict.  c.  33),  s.  1.  See  sec.  7,  which  provides  that  the  Act 
is  to  be  read  as  one  with  11  &  12  Vict.  c.  38. 

(Iv.)  PuUic  Health  {Scotland)  Act  (60  &  61  Vict.  c.  38),  s.  168,  exempts 
"  all  bonds,  assignations,  conveyances,  instruments,  agreements,  receipts,  or 
other  writings  made  or  granted  to  or  in  favour  of  the  local  authority  " 
under  the  Act.  See  Local  Government  {Scotland)  Act,  1889  (52  &  53  Vict. 
c.  50),  ss.  11,  17.  In  practice,  a  decree-arbitral  is  regarded  as  falling 
under  the  exemption. 

(Ivi.)  PiiUic  Money  Drainage  Act,  1846  (9  &  10  Vict.  c.  101),  s.  47, 
exempts  any  bond  or  other  security  given  to  the  Commissioners  under  the 
Act,  and  any  certificate  or  other  instrument  made  thereunder. 

(Ivii.)  PiOjUc   Works  {Ireland)  No.  2  Act,  1846  (9  &   10  Vict.  c.  86), 

ss.  8,  47. 

(Iviii.)  Peprcsentation  of  the  People  {Scotland)  Aet,  1868  (31  &  32  Vict, 
c.  48),  s.  39  (4),  exempts,  by  applying  the  provision  of  24  &  25  Vict.  c.  53  (see 
sec.  6),  voting  papers  used  at  Scots  University  Parliamentary  Elections.  As 
to  England  and  Ireland,  see  24  &  25  Vict.  c.  53,  s.  6 ;  30  &  31  Vict.  c.  102, 

s  45. 

(iix.)  Bevievj  of  Justices'  Decisions  Act,  1872  (35  &  36  Vict.  c.  20),  s.  2. 

(Ix.)  Bides  of  the  Supreme  Court.     Order  XXXIV.  (0). 

(Ixi.)  Savings  Banks  Annuities  Act,  1853  (16  &  17  Vict.  c.  45),  s.  29, 
exempts  any  copy  register  of  birth  or  baptism  or  marriage  or  burial,  or  any 
certificate  or  declaration  made  in  pursuance  of  the  Act,  or  any  certificate 
or  other  instrument  whatsoever  respecting  the  payment  of  money  for  the 
purchase  of  any  annuity  or  sum  payable  at  death  under  this  Act,  or  any 
power  of  attorney  authorising  the  receipt  or  any  receipt  for  the  payment  of 
such  annuity  or  sum. 

(Ixii.)  Statute  of  Frauds  Amendment  Act,  1828  (9  Geo.  iv.  c.  14),  s.  5. 

(Ixiii.)  Taxes  Management  Act,  1880  (43  &  44  Vict.  c.  19),  s.  78,  exempts 
any  bond  or  other  security  given  under  the  Act  by  a  collector  or  other 
person  in  respect  of  the  collection,  accounting  for,  or  remitting  of  the  laud 
tax  or  the  duties. 

(Ixiv.)  The  Tcinds  Act,  1810  (50  Geo.  III.  c.  84),  s.  22,  exempts  the 
precepts,  warrants,  and  receipts  specified  in  the  Act. 

(Ixv.)  Telegraph  Act  (32  &  33  Vict.  c.  73),  s.  22,  exempts  any  deed  or 
other  instrument  made  by,  to,  or  with  the  Postmaster-CJcneral  or  otherwise 
for  the  purposes  of  tlic  Act,  or  of  tlie  Telegraph  Act,  1868,  unless  such 
instrument  shall   be  specifically  charged  by  any  future  Act.      The  5th 


416  STAMPS 

section  of  the  Telegraph  Act,  1868,  shall  operate  as  if  the  words  "duly- 
stamped  "  were  omitted  therefrom. 

(Ixvi.)     The  Tithe  Aet,  1836  (6  &  7  Will.  iv.  c.  71\  s.  91. 

(Ixvii.)    The  Tithe  Act,  1837  (1  Vict.  c.  69),  s.  12. 

(Ixviii.)  The  Tithe  Act,  1838  (1  &  2  Vict.  c.  64),  s.  2. 

(Ixix.)  The  Truck  Act,  1896  (59  &  60  Vict.  c.  44),  s.  7,  exempts  contracts 
made  under  the  provisions  of  the  Act. 

(Ixix.  {!,))  The  Trustee  Savings  Banh  Act,  1863  (26  &  27  Vict.  c.  87),  s.  50. 

No  power,  warrant,  or  letter  of  attorney  granted  to  or  to  be  granted  by  any  person 
or  persons,  or  trustee  or  trustees  of  any  savings  bank  as  aforesaid,  nor  any  power, 
warrant,  or  letter  of  attorney  given  by  any  depositor  or  depositors  in  the  funds  of  any 
such  savings  bank  to  any  person  or  persons  aulliorising  him,  her,  or  them  to  make  any 
deposit  or  deposits  of  any  sum  or  sums  of  money  in  the  said  funds  on  behalf  of  the  said 
depositor  or  depositors,  or  to  sign  any  document  or  instrument  required,  by  the  rules  or 
regulations  of  such  savings  bank,  to  be  signed  on  making  such  deposits,  or  to  receive 
back  any  sum  or  sums  of  money  deposited  in  the  said  fund.'^,  or  the  dividends  or  interest 
arising  therefrom,  nor  any  receipt  nor  any  entry  in  any  book  of  receipt  for  money 
deposited  in  the  funds  of  any  such  savings  bank,  nor  for  any  money  received  by  any 
depositor,  his  or  her  executors  or  administrators,  assigns  or  attorneys  from  the  funds  of 
such  savings  bank,  nor  any  draft  or  order,  nor  any  appointment  of  any  agent  or  agents 
nor  any  certificate  or  other  instrument  for  the  revocation  of  any  such  appointment,  nor 
any  surety  bond,  nor  any  submission  to,  or  award,  order,  or  determination  of  the  said 
barrister  nor  any  other  instrument  or  document  whatever,  required  or  authorised  to  be 
given,  issued,  signed,  made,  or  produced  in  pursuance  of  this  Act,  shall  be  subject  or 
liable  to  or  charged  with  any  stamp  duty  or  duties  whatsoever. 

(Ixx.)  Weights  and  Measures  Act,  1878  (41  &  42  Vict.  c.  49),  s.  37, 
exempts  indentures  evidencing  verification  of  local  standards,  and  indorse- 
ments upon  such  indentures,  or  new  indentures  evidencing  reverification. 

(19)  Writs  speeijied  in  55  Geo.  in.  c.  184,  Schcd.  Ft.  II.  (iv.)  relating  to 
Proceedings  in  the  Courts  in  Scotland,  are  treated  in  practice  as  exempt. 
The  schedule  was  repealed  by  5  Geo.  iv.  c.  41.  The  latter  enactment  was 
repealed  by  33  &  34  Vict.  c.  99  ;  but  the  scheduled  instruments  are  still 
regarded  as  free  from  duty,  on  the  ground  that  it  would  have  required  a 
resolution  of  the  House  of  Commons,  and  a  charge  in  particular  and  express 
terms,  to  reimpose  the  duties  repealed.  Accordingly,  a  judicial  bond,  a 
report,  estimate  or  scheme  prepared  under  the  authority  of  a  judge,  and  a 
warrant,  mandate,  or  authority,  given  to  any  solicitor,  attorney,  agent,  or 
procurator,  to  commence,  carry  on,  defend,  or  appear  in  any  action,  suit,  or 
procedure,  at  the  instance  or  on  behalf  of  any  party  or  parties  not  having 
distinct  interests,  are  regarded  as  exempt.  These  are  the  only  instruments, 
mentioned  in  the  schedule,  which  have  been  dealt  M'itli  in  practice. 

(20)  Schedule  of  Duties  binder  the  StamiJ  Act,  1891,  and  the  Regulations 
applicable  to  Particular  Instruments,  ivith  the  Pelative  Sections,  so  far  as  applic- 
able to  Scotland. 

Admission  in  Scotland  of  any  person — 
As  an  advocate. 

If  he  has  been  previously  duly  admitted  to  the  degree  of  barrister-at- 
law  in  Ireland     .....  .  • 

In  any  other  case   ........ 

Exem'ption. 

Admission  of  any  person  who  has  been  previously  duly  admitted  to  the 
degree  of  barrister-at-law  in  England. 
And  see  sees.  18,  19  [and  20]. 


£ 

s. 

d. 

10 

0 

0 

50 

0 

0 

STAMPS  417 

Admission  in  Scotland  of  any  person —  £    s.    d. 

(1)  As  a  law  agent  to  practise  before  the  Court  of  Session  or  as  a  writer  to 

the  signet : 
If  he  has  previously  paid  the  sum  of  £60  for  duty  upon  his  articles  of 

clerkship  (see  s.y.  "Articles  of  Clerkship"  below)       .  .             .     25     0     0 

If  he  has  been  previously  duly  admitted  as  a  law  agent  to  practise 

before  a  Sheriff  Court  .          ' .             .             .             .  .            .     30    0     0 

In  any  other  case              .             .            .             .             .  .            .     85     0     0 

(2)  As  a  law  agent  to  practise  before  a  Sheriff  Court  : 

If  he  has  previously  paid  the  sum  of  2?.  6d.  for  duty  on  his  articles 

of  clerkship       . '  .  .  .  .  \  .  .     54  17     G 

In  any  other  case  .  .  .  .  ...  .     55     0     0 

Exemption. 

Admission  of  any  person  who  has  been  previously  duly  admitted  as  a  law 
agent  to  practise  before  the  Court  of  Session,  or  as  a  writer  to  the 
signet  to  act  in  the  other  of  those  capacities. 

And  see  sees.  18  and  19. 

An  enrolled  law  agent,  who  has  paid  the  stamp  duty  chargeable  on 
admission  to  practise  as  agent  in  a  Sheriff  Court,  shall  be  qualified  to  sign 
the  roll  of  law  agents  practising  in  the  Court  of  Session  on  paying  the 
difference  between  such  duty  and  the  duty  chargeable  on  admission  to 
practise  in  the  Court  of  Session  (36  &  37  Vict.  c.  63,  s.  7). 

Admission  to  act  as  a  notary  public. 

See  Faculty. 
Admission  of  anv  person —  £    s.    d. 

As  a  Fellow  of  the  College  of  Phj-sicians  in  England,  Scotland,  or  Ireland     25     0     0 

And  see  sees.  18  and  19. 

Admission  in  Scotland  of  any  person — 

As  a  burgess,  or  into  any  corporation  or  company,  in  any  burgh      .  .050 

Exem'ption. 

Admission  of  a  craftsman  or  other  person  into  any  corporation  within 
any  royal  luirgh,  burgh  of  royalty,  or  burgh  of  barony  incorporated  by 
the  magistrates  and  council  of  such  burgh,  i)rovided  such  craftsman  or 
other  person  has  been  previously  duly  admitted  a  freeman  or  burgess 
of  the  burgh. 

And  see  sees.  18  and  19. 

Admissions. 

18.  The  duty  payable  upon  an  admission  is  to  be  denoted  on  the  instrument  of 
admission  delivered  to  tlie  person  admitted,  if  there  be  any  such  instrument,  or  if  not, 
on  the  register,  entry,  or  memorandum  of  the  admission  in  the  rolls,  books,  or  records  of 
the  court,  inn,  college,  borough,  burgh,  company,  corporation,  guild,  or  society  in  whicli 
the  admission  is  made,  and  in  cases  in  which  no  instrument  of  admission  is  delivered, 
and  no  register,  entry,  or  memorandum  is  made,  on  the  rescript  or  warrant  for  admis- 
sion. 

19.  If  any  person  whose  office  it  is  to  prepare  or  deliver  out  any  instrument  of 
admission  chargeable  with  duty,  or  to  register,  enter,  or  make  any  memorandum  of  any 
admission  in  respect  of  which  no  instrument  of  admission  is  delivered  to  the  person 
admitted,  neglects  or  refuses,  within  o)ie  month  after  the  admission,  to  prepare  a  duly 
stamped  instrument  of  admission,  or  to  make  a  duly  sluinpi-d  register,  entry,  or  memo- 
randum of  the  admission,  as  the  case  may  require,  he  shall  incur  a  fine  of  ten  pounds. 

The  cliargc  upon  an  aiipoiutmeut  or  admission  to  a  salaried  office  or 
employment  (38  Vict.  c.  23,  s.  14),  and  to  an  ecclesiastical  benefice  (40 
Vict.  c.  13,  s.  13),  has  been  repealed.  But  an  admission  to  an  honorary 
office,  if  contained  in  a  deed,  and  not  chargeable  under  a  specific  head,  is 
liable  to  deed  duty. 

S.  E.— vol.  XL  27 


418  STAMPS 

£    s.    d. 

Affidavit  and  Statutory  Declaration  .  .  .  •  .026 

Exemptions. 

(1)  Affidavit  made  for  the  immediate  purpose  of  being  filed,  read,  or 

used  in  any  Court,  or  before  any  judge,  master,  or  officer  of  any 
Court.  .    . 

(2)  Affidavit  or  declaration  made  upon  a  requisition  of  tlie  commissioners 

of  any  public  board  of  revenue,  or  any  of  the  officers  acting  under 
them,  or  required  by  law,  and  made  before  a  justice  of  the  peace. 

(3)  Affidavit  or  declaration  which  may  be  required  at  the  Bank  of  Eng- 

land or  the  Bank  of  Ireland  to  prove  the  death  of  any  proprietor  of 
any  stock  transferable  there,  or  to  identify  the  person  of  any  such 
proprietor,  or  to  remove  any  other  impediment  to  the  transfer  of 
any  such  stock. 

(4)  Affidavit  or  declaration  relating  to  the  loss,  mutilation,  or  defacement 

of  any  bank  note  or  bank  post  bill. 

(5)  Declaration  required  to  be  made  pursuant  to  any  Act  relating  to  mar- 

riages in  order  to  a  marriage  without  licence. 

(6)  Declaration  forming  part  of  an  application  for  a  patent  in  comformity 

with  the  Patents,  Designs,  and  Trade  Marks  Act,  1883. 

As  to  special  exemptions,  see  (18)  (ii.)  (xxviii.)  (xxxii.)  (xlix.). 

As  to  the  meaning  of  "  statutory  declaration,"  see  Interpretation  Act, 
1889  (52  &  53  Vict.  c.  63),  s.  21. 

A  ratification  by  a  married  woman  is  regarded  as  falling  under  exemp- 
tion (2),  beino-  "  required  by  law,  and  made  before  a  justice  of  the  peace  " 
(see  6  &  7  Will.  iv.  c.  43).  Under  exemption  (3)  "  proprietor "  does  not 
include  a  trustee. 

Agreement  or  Contract,  accompanied  with  a  deposit.  £    s,    d. 

See  Mortgage,  etc.,  and  sees.  23  and  86. 
Agreement  for  a  lease  or  tack,  or  for  any  letting. 

See  Lease  or  Tack,  and  sec.  75, 
Agreement  for  sale  of  property. 

See  Conveyance  on  Sale,  and  sec,  59. 
Agreement  or  Contract  made  or  entered  into  pursuant  to  the  Highway 
Acts  for  or  relating  to  the  making,  maintaining,  or  repairing  of  high- 
ways .....•••• 

See  Coimty  Council  of  Cumberland,  78  L,  T.  E,  679. 

Agreement  or  any  Memorandum  of  an  Agreement,  made  in  England 
or  Ireland  under  hand  only,  or  made  in  Scotland  without  any  clause 
of  registration,  and  not  otherwise  specifically  charged  with  any  duty, 
whether  the  same  be  only  e^ddence  of  a  contract,  or  obligatory  upon 
the  parties  from  its  being  a  written  instrument        .... 

Exem^itions. 

(1)  Agreement  or  memorandum  the  matter  whereof  is  not  of  the  value 

of  £5. 

(2)  Agreement  or  memorandum  for  the  hire  of  any  labourer,  artificer, 

manufacturer,  or  menial  servant. 

(3)  Agreement,  letter,   or  memorandum   made   for  or  relating  to  the 

sale  of  any  goods,  wares,  or  merchandise. 

(4)  Agreement  'or  memorandum  made  between  the  master  and  mariners 

of  any  ship  or  vessel  for  wages  on  any  voyage  coastwise  from  port 
to  port  in  the  United  Kingdom. 

•  •  •  •  • 

And  see  sees.  22  and  23. 

As  to  special  exemptions,  see  (18)  (ii.)  (xviii.)  (xxxvii.)  (xxxix.)  (xli.)  (liii.) 

(Iv.)  (Ixv.)  (Ixix.), 

Agreements. 

22.  The  duty  of  sixpence  upon  an  agreement  may  be  denoted  by  an  adhesive  stamp, 
which  is  to  be  cancelled  by  the  person  by  whom  the  agreement  is  first  executed. 


0    0    6 


0    0    6 


STAMPS  419 

23. — (1)  Every  instrument  under  hand  only  (not  being  a  promissory  note  or  bill  of 
exchange)  given  upon  the  occasion  of  the  deposit  of  any  share  warrant  or  stock  certificate 
to  bearer,  or  foreign  or  colonial  share  certificate,  or  any  security  for  money  transferable 
by  delivery,  by  way  of  security  for  any  loan,  shall  be  deemed  to  be  an  agreement,  and 
shall  be  charged  with  duty  accordingly. 

(2)  Every  instrument  iinder  hand  only  (not  being  a  promissory  note  or  bill  of  ex- 
change) making  redeemable  or  qualifying  a  duly  stamped  transfer,  intended  as  a  securitv 
of  any  registered  stock  or  marketable  security,  shall  be  deemed  to  be  an  agreement  and 
shall  he  charged  with  duty  accordingly. 

(3)  A  release  or  discharge  of  any  such  instrument  shall  not  be  chargeable  with  any 
ad  valorem  duty. 

"  A  promise  is  a  pure  and  simple  expression  of  the  will  of  the  party- 
undertaking  the  obligation,  requiring  no  acceptance,  and  still  less  requiring 
mutual  consent.  A  promise  is  distinguished  by  Ld.  Stair  from  a  pollicita- 
tion or  offer,  which  requires  acceptance  to  make  it  binding,  and  still  more 
from  a  paction,  which,  in  order  to  be  binding,  requii'cs  the  mutual  consent 
of  two  parties"  (Macfarlaiie,  1864,  2  M.  1210,  per  Ld.  J.-Cl.  Inglis;  see 
Stair,  i.  10.  3).  In  the  same  case  Ld.  Neaves  observes  that  "the  word 
'  agree '  is  ambiguous,  and,  strictly,  ought  to  be  confined  to  pactions ;  and  an 
agreement,  properly  speaking,  means  a  paction,  a  consensus,  of  a  plurality 
of  persons  m  idem  placitum.  But  it  is  also  used  improperly  as  a  word  of 
unilateral  significance ;  and,  if  it  be  so  used,  I  see  no  difference  between  the 
expressions  '  I  agree  to  pay '  and  '  I  promise  to  pay ' "  (see  also  Goldston, 
1868,  7  M.  188;  3faIcolm,  1891,  19  E.  278;  Camhuslang  West  Chureh  Com- 
mittee of  Management,  1897,  25  R.  322).  In  dealing  with  English  cases 
falling  under  the  "  Statute  of  Frauds  "  (29  Car.  ii.  c.  3),  the  requisites  as  to 
authentication  under  that  enactment  (see  sees.  4  and  7)  must  be  kept  in  view 
(see  Benjamin  on  Sale,  chap.  \^i. ;  Welslis  Trs.,  1885,  12  R.  851).  In  the 
case  of  Deivar,  1892,  20  R.  203,  Ld.  Young  observes  that  "parole  evidence 
that  there  was  jotting  or  writing,  however  formal  in  certain  terms,  not 
signed  by  the  parties  who  were  making  the  arrangement,  and  that  the 
arrangement  which  they  ultimately  came  to  was  in  accordance  with  that 
writing,  is,  in  my  opinion,  just  evidence  of  a  parole  agreement.  It  is  proved 
by  parole  and  nothing  else  "  (see  Rei  interventus  ;  and  cf.  JVcdker,  9  M. 
&  W.  411 ;  Chctdivick,  1  C.  B.  700,  14  L.  J.  C.  P.  233).  As  to  the  question 
when  does  a  recital  in  an  agreement  create  a  covenant,  see  Elphinstone, 
i^orton,  and  Clark,  Interpretation  of  Deeds,  pp.  128,  415,  and  authorities 
there  cited.  A  mere  consent,  e.g.  a  minute  of  consent  by  the  Local  Govern- 
ment Board,  to  a  disposition  of  heritage,  under  the  Local  Government 
(Scotland)  Act,  1894,  s.  48,  or  a  jotting  showing  the  state  of  account 
between  the  parties  {Todd,  1897,  24  R.  1104),  or  a  mere  acknowledgment 
of  debt  (Bccching,  8  M.  &  W.  411,  10  L.  J.  Ex.  4G4 ;  unless  it  itself  amounts 
to  an  agreement  (ib.),  or  falls  within  the  terms  of  sec.  101,  see  s.v.  "Receipt" 
below),  or  an  I.  0.  U.,  is  not  liable  to  stamp  duty.  But  of  the  two  latter, 
either  may,  by  the  addition  of  special  matter,  be  brought  into  charge  as  an 
agreement  {Melanotle,  13  M.  &  W.  216,  13  L.  J.  Ex.  358;  Taylor, UM. 
&  W.  665,  16  L.  J.  Ex.  177;  White,  3  Ex.  689,  18  L.  J.  Ex.  316;  Welsh's 
Trs.,  1885,  12  R.  851 ;  cf.  Cory,  14  C.  B.  N.  S.  370),  or  promissory  note 
{Ashhj,  M.  &  P.  186;  Green,  1  C.  &  P.  451;  Brooks,  2  M.  &  W.  74). 
Observe,  that  a  document  cannot  be  in  part  an  agreement  and  in  part  a 
promissory  note  ;  it  must  be  the  one  or  the  other  {Mortgage  Insur.  Co^pn.,  L.  R. 
20  Q.  B.  D.  645,  21  Q.  B.  D.  352 ;  see  Thomson,  1894,  32  S.  L.  R.  16) ;  and 
that  an  indorsement  upon  a  promissory  note  may  render  indorsement  and 
note  liable  to  one  stamp  as  an  agreement  {Leeds,  12  East,  1  ;  Hartley,  A:M.  & 
S.  25  ;  Cholmlcy,  14  M.  &  W.  344, 14  L.  J.  Ex.  328).     A  policy  operating  as 


420  STAMPS 

guarantee  for  the  payment  of  a  mortgage  debt  {Mortgage  Insur.  Cor2ytn.,  57  L.  J. 
Q.  B.  179),  or  securing  to  the  assured  payment  of  a  sum  at  a  specific  date 
{Mortgage  Insur.  Corptn.,  L.  E.  20  Q.  B.  D.  645,  21  Q.  B.  D.  352),  is,  unless 
containing  a  clause  of  registration,  chargeable  as  an  agreement ;  and  a 
document  similar  in  form  to  a  bill  of  lading,  relating  to  inland  navigation, 
is  chargeable  under  that  head.  As  to  a  receipt  granted  by  a  person,  in 
respect  of  personal  injuries,  for  a  sum  in  settlement  of  all  claims,  see  s.v. 
"  Eeceipt "  below.  Observe  that  a  document,  in  form  a  receipt,  stating  that 
the  money  received  was  received  on  loan,  is  chargeable  as  an  agreement,  and 
does  not  require  to  be  stamped  in  addition  as  a  receipt  (see  Welsh's  Trs., 
ut  supra).  When  an  agreement  is  constituted  by  letters,  the  stamp  may  be 
on  any  one  of  them. 

The  second  exemption  has  been  held  to  apply  to  firemen  and  stokers 
( Wilson,  14  Q.  B.  405,  19  L.  J.  Q.  B.  49),  and  to  a  farm  bailiff  paid  by 
salary  and  a  share  of  profits  {B.  v.  Worthy,  2  Den.  C.  C.  333,  21  L.  J.  M.  C, 
44) ;  and  not  to  apply  to  a  clerk  {Dakin,  2  Cr.  &  D.  225).  See  as  to  the 
meaning  of  "servants,"  M'Intyre,  1863,  2  M.  94;  Broivn,  1884,  11  E.  821 ; 
Todd,  8  Ex.  151,  22  L.  J.  Ex.  1 ;  2  Williams,  Exors.  1007). 

The  third  exemption  has  been  liberally  construed.  It  has  been  ex- 
tended to  an  agreement  to  indemnify  a  purchaser  against  loss  on  re-sale 
{Curry,  3  T.  E.  524) ;  to  an  agreement  between  joint  purchasers  to  share  in 
profit  or  loss  {Venning,  13  East,  7);  to  a  guarantee  for  payment  of  goods  to 
be  supplied  to  a  third  person  {Warrington,  8  East,  242;  Sadler,  16  M.  & 
W.  775,  16  L.  J.  Ex.  178);  and  to  a  stamped  receipt  for  the  price  of  a 
horse,  with  the  words  "  warranted  sound "  added  {Shrine,  2  Camp.  407). 
An  agreement  will  not  fall  within  the  exemption  where  the  sale  of  goods  is 
not  the  primary  object  {Smith,  2  B.  &  A.  778);  or  where  it  includes 
property  subject  to  charge  {South,  3  Bing.  N.  C.  506).  The  words  "  goods, 
wares,  or  merchandise"  comprehend  "all  tangible  moveable  property" 
(Blackburn,  Sale,  9) ;  and  in  construing  these  words,  or  in  determining  the 
quality  of  property,  the  decisions  upon  sees.  4  and  17  of  the  Statute  of 
Frauds  (29  Car.  ii.  c.  3,  as  amended  by  the  Statute  of  Frauds  Amendment 
Act,  1828,  9  Geo.  iv.  c.  14,  s.  8),  in  the  latter  of  which  those  words  occur, 
may  be  applied  (Benjamin,  Sale,  4th  ed.,  pp.  93-129  ;  see  also  Stair,  ii.  2.  4 
Ersk.  ii.  4.  7 ;  Bell,  Prin.  ss.  1471  et  seq. ;  Eankine,  Leases,  pp.  304,  369 
Fixtures  ;  Heritable  and  Moveable).  Observe  that  an  executory  con- 
tract for  a  sale  of  goods  not  yet  manufactured  falls  within  that  statute, 
while  an  agreement  for  work  and  labour  does  not  {Lee,  1  B.  &  S.  272,  30 
L.  J.  Q.  B.  252 ;  cf.  Clay,  1  H.  &  N.  73,  25  L.  J.  Ex.  237).  As  to  a  hire- 
purchase  agreement,  see  Murdoch  &  Co.,  1889,  16  E.  396;  Lee,  L.  E.  [1893] 
2  Q.  B.  318 ;  Helhy,  L.  E.  [1895]  A.  C.  471.  See  also  s.v.  "Bill  of  Lading," 
"  Conveyance  on  Sale,"  "  Lease,"  "  Mortgage,"  below. 

£    s.    d. 

Allotment.    See  Letter  of  Allotment. 
Annuity,  conveyance  in  consideration  of. 

See  Conveyance  on  Sale,  and  sec.  56. 
purchase  of. 

See  Conveyance  on  Sale,  and  sec.  60. 
creation  of,  by  way  of  security. 

See  Mortgage,  etc.,  and  sec.  87. 
instruments  relating  to,  upon  any  other  occasion. 
See  Bond,  Covenant,  etc. 
Appointment  of  a  new  trustee,  and  Appointment  in  execution  of  a  power 
of  any  property,  or  of  any  use,  share,  or  interest  in  any  property,  by  any 
instrument  not  being  a  will  .  .  .  .  '  ,  .       0  10    0 

And  see  sec.  62. 


STAMPS 


421 


A  conveyance  or  transfer  made  for  effectuating  the  appointment  of  a 
new  trustee  is  not  to  be  charged  with  any  duty  higher  than  10s. 
(s.  62;  see  below,  s.t-.  "Conveyance  or  Transfer"  of  any  kind  not  herein- 
before described).  To  attract  the  charge  the  trustee  must  be  a  new  trustee ; 
and  so  the  appointment  of  a  trustee  under  43  &  44  Vict.  c.  26,  s.  2,  is  not 
chargeable,  unless  the  deed  containing  it  is  liable  to  deed  duty  (see  s.v. 
"Deed"  below),  or  unless  the  policy  has  become  a  claim  prior  to  the 
appointment.  An  instrument  appointing  a  new  trustee  whicli  contains  a 
conveyance  of  the  trust  property  is  liable  to  a  further  duty  not  exceeding 
10s.  in  respect  of  the  conveyance  {Hadgett,  L.  R.  3  Ex.  D.  46). 


Appointment  of  a  gamekeeper. 

See  Deputation. 

Appraisement  or  Valuation  of  any  iiroperty,  or  of  any  interest  therein,  or 

of  the  annual  value  thereof,  or  of  any  dilapidations,  or  of  any  repairs 

wanted,  or  of  the  materials  and  lalwnr  used  or  to  be  used  in  any  building, 

or  of  any  artificers'  work  whatsoever. 

Where  the  amount  of  the  appraisement  or  valuation  does  not  exceed 

Exceeds  £5  and  does  not  exceed  £10  . 

„         10  „                    20  ...  . 

20  „                    30  ...  . 

30  „                    40  ...  . 

40  „                    50  ...  . 

50  „                   100  ...  . 

100  „                  200  ...  . 

200  „                   500  ...  . 

500  ......  . 


£    s.    d. 


.       0     0 

3 

.       0     0 

6 

.       0     1 

0 

.       0     1 

6 

.      0     2 

0 

.       0    2 

6 

.       0     5 

0 

.       0  10 

0 

.       0  15 

0 

.       1     0 

0 

Exem'ptions. 

(1)  Appraisement  or  valuation  made  for,  and  for  the  information  of, 

one  party  only,  and  not  being  in  any  manner  obligatory  as  between 
parties  either  by  agreement  or  operation  of  law. 

(2)  Appraisement  or  valuation  made  in  pursuance  of  the  order  of  any 

Court  of  Admiralty,  or  of  any  Court  of  Appeal,  from  a  judg- 
ment of  any  Court  of  Admiralty. 

(3)  Appraisement  or  valuation  of  i:)ro]ierty  of  a  deceased  person  made 

lor  the  information  of  an  executor  or  other  person  recjuired  to 
deliver,  in  England  or  Ireland,  an  affidavit,  or  to  record  in  any 
Commissary  Court  in  Scotland  an  inventory  of  the  estate  of  such 
deceased  person. 

(4)  Appraisement  or  valuation  of  any  property  made  for  the  purpose 

ot  ascertaining  the  legacy  or  succession  or  account  duty  payable 
in  respect  thereof. 
And  see  sec.  24. 

As  to  special  exemptions,  see  (18)  (ii.)  (xxviii.). 

Appraisements. 

24. — (1)  Every  appraiser  by  whom  an  api)raisement  or  valuation  chargeable  with 
stamp  duty  is  made,  sliall,  within  fourteen  days  after  the  making  tlicreof,  write  out  the 
same  in  words  and  figures  showing  the  full  amount  thereof,  upon  duly  stamped  material, 
and  if  he  neglects  or  omits  so  to  do,  or  in  any  otliiT  manner  discloses  the  amount  of  the 
appraisement  or  valuation,  lie  shall  incur  a  line  of  lifty  jjuunds. 

(2)  Every  person  who  receives  from  any  appraiser,  or  pays  for  the  making  of,  any 
such  appraisement  or  valuation,  shall,  unless  the  same  be  written  out  and  stamped  as 
aforesaid,  incur  a  line  of  twenty  pounds. 

"Appraiser"  is  dufmed  by  46  Geo.  ill.  c.  43,  s.  4,  as  a  person  wlio 
shall  value  or  appraise  any  estate  or  property,  real  or  personal, 
or  any  interest  therein,  whether  in  possession  or  not,  or  any  goods, 
merchandise,  or  eriects,  for  or  in  expectation  of  any  hire,  gain,  fee  or 
reward  or  valuable  consideration.     Tliis  definition  has  been  held  to  apply 


422  STAMPS 

only  to  a  person  who  bears  the  known  character  of  an  appraiser  {Atkinson, 
5  jM.  &  S.  240) ;  and  this  limitation  seems  equally  applicable  to  the  section 
imposing  the  existing  duty  (8  &  9  Yict.  c.  7G,  s.  1).  The  distinction 
between  an  appraisement  and  an  award  (see  s.v.  "  Award  ")  is  not  always 
clear  in  stamp  duty  questions.  In  England  it  has  been  held  that  "  to  make 
a  decision  an  award,  there  must  be  a  dispute  on  foot  between  the  parties  " 
{Cams  Wilson  &  Greene,  in  re,  L.  E.  18  Q.  B.  D.  7).  In  Scotland  a  decision 
is  regarded  as  an  award,  wherever  it  follows  upon  a  formal  submission  (see 
Akbitration).  An  appraisement  if  originally  exempt  remains  so  although 
adopted  as  a  basis  of  an  obligatory  agreement  {Jachson,  4  Tyr.  330). 

£   s.   d. 
Apfrexticeship,  instrument  of  .  .  .  .  .  .026 

Exem2otions. 

(1)  Instruments  relating  to  any  poor  cliild  apprenticed  by  or  at  the 

sole  charge  of  any  parish  or  to'wnship,  or  by  or  at  the  sole  charge 
of  any  public  charity,  or  pursuant  to  any  Act  for  the  regulation 
of  parish  a2iprentices. 

(2)  Instrument  of  apprenticeship  in  Ireland,  where  the  value  of  the 

premium  or  consideration  does  not  exceed  £10. 
And  see  sec.  25. 

As  to  general  exemption,  see  (17).  As  to  special  exemptions,  see 
(18)  (xxxvii.). 

As  to  the  meaning  of  public  charity  in  the  first  exemption,  see  Hall, 
L.  R  16  Q.  B.  D.  163,  and  cases  cited  in  Tilsley,  Stamps,  3rd  ed., 
pp.  59  e^  seq. 

Instruments  of  Ap2^renticcship. 

25.  Every  writing  relating  to  the  service  or  tuition  of  any  apprentice,  clerk,  or 
servant  placed  with  any  master  to  learn  any  profession,  trade,  or  employment  (except 
articles  of  clerkship  to  a  solicitor  or  law  agent  or  writer  to  the  signet)  is  to  be  deemed 
an  instrument  of  apprenticeship. 

£    s.    d. 

Articles  of  Clerkship  whereby  any  person  first  becomes  bound  to  sen'e  as 
a  clerk  in  order  to  his  admission, 

•  •■•■■•••a 

(2)  As  a  law  agent  to  practise  before  the  Court  of  Session  or  as  writer 

to  the  signet  in  Scotland     .  .  .  .  .  .     60    0    0 

(3)  As  a  law  agent  to  practise  before  a  Sheriff  Court  in  Scotland  .       0     2     6 
And  see  sees.  26,  27  [and  28]. 

Articles  of  Clerkship. 

28. — (1)  "WTiere  the  same  articles  are  a  qualification  for  the  admission  of  any  person 
as  a  law  agent  to  practise  before  the  Court  of  Session,  and  also  as  a  law  agent  to  practise 
before  a  Sheriff  Court  in  Scotland,  the  articles  are  not  to  be  charged  vrith.  any  further 
duty  than  sixty  pounds. 

(2)  Where  any  person  has  become  bound  by  duly  stamped  articles  in  order  to  his 
admission  as  a  law  agent  to  practise  before  a  Sheriff'  Court  in  Scotland,  the  articles  shall, 
on  payment  of  such  further  amount  of  duty  as,  together  with  the  amount  previously 
j)aid  thereon,  will  make  up  the  sum  of  sixty  pounds,  be  impressed  with  a  stamp  denoting 
the  payment  of  the  further  duty,  and  shall  thereupon  be  considered  to  be  sufficiently 
stamped  for  entitling  the  person  to  admission  as  a  law  agent  to  practise  before  the  Court 
of  Session. 

27.  Save  as  hereinbefore  i)rovided,  articles  of  clerkship  are  not  to  be  stamped  at  any 
time  after  the  date  thereof,  except  upon  payment  of  penalties,  as  follows  : — 

(a)  If  brought  to  be  stamped  within  one  year  after  date,  ten  pounds  : 

(b)  If  so  brought  after  one  year  and  within  five  years  after  date, — 

For  every  complete  year,  and  also  for  any  additional  part  of  a  year  elapsed 
since  the  date,  ten  pounds  : 

(c)  In  every  other  case,  fifty  pounds. 


STAMPS 


423 


Articles   of   Cerkship  ^vliereby  any  person,  having  been  bound  by  pre- 
vious duly  stamped  articles  to  serve  as  a  clerk  in  order  to  his  admission 
in  any  of  the  Courts  aforesaid,  and  not  having  completed  his  service  so 
as  to  be  entitled  to  such  admisson,  becomes  bound  afresh  for  the  same 
purpose. 

Where  the  duty  upon  the  previous  articles  "was  2s.  Gd. 

In  any  other  case  ....... 

Assignment'  or  Assignation. 

By  way  of  security,  or  of  any  security.     See  Mortgage,  etc. 
Upon  a  sale,  or  otherwise.     See  Conveyance. 
Assurance.     See  Policy. 
Attested  Copy.    See  Copy. 
Attorney,  Letter  or  Power  of.    See  Letter  of  Attorney. 

Warrant  of.     See  Warrant  of  Attorney. 
Award   in  England  or   Ireland,  and   Award  or    Decreet-Arbitral   in 
Scotland. 
In  any  case  in  which  an  amount  or  value  is  the  matter  in  dispute- 
Where  no  amount  is  awarded  or  the  amount  or  value  awarded  does 
not  exceed  £5.      ..... 

Where  the  amount  or  value  awarded — 
Exceeds  £5  and  does  not  exceed  £10 


£    s.    d. 


10 

20 

30 

40 

50 

100 

200 

500 

750 

1000 

9> 


20 

30 

40 

50 

100 

200 

500 

750 

1000 


In  any  other  case 


0    2     G 
0  10    0 


0     0     3 
0     0     6 


0 

1 

0 

0 

1 

G 

0 

2 

0 

0 

2 

G 

0 

5 

0 

0 

10 

0 

0 

15 

0 

1 

0 

0 

1 

5 

0 

1 

15 

0 

1 

15 

0 

As  to  special  exemptions,  see  (18)  (ii.)  (Ixi.  (&)). 

"  Award  "  is  properly  aii  English  law  term.     See  s.v.  '  Appraisement  " 
above,  and  Awakd. 


Back  Bond  or  Back  Letter. 
Bank  Note — 


See  Mortgage,  etc.,  and  sees.  23  and  86. 


For  money  not  exceeding  £1 
Exceeding  £1  and  not  exceeding  £2 


» 

2 

5 

>) 

5 

10 

?> 

10 

20 

1> 

20 

30 

>> 

30 

50 

»> 

50 

100 

£ 

s. 

d. 

0 

0 

5 

0 

0 

10 

0 

1 

3 

0 

1 

1) 

0 

2 

0 

0 

3 

0 

0 

5 

0 

0 

8 

G 

And  see  sees.  29,  30,  and  31. 

Bank  Notes,  Bills  of  Exchange,  and  Promissory  Notes. 

29.  For  the  purposes  of  this  Act  the  expression  "banker"  means  any  person 
carrying  on  tlie  business  of  banking  in  the  United  Kingdom,  and  the  expression  "  bank 
note  "  includes — 

(«)  Any  bill  of  exclange  or  promissory  note  issued  by  any  banker,  other  than  the 
Bank  of  England,  for  the  payment  of  money  nut  exceeding  one  Imndrcd  pounds 
to  the  bearer  on  demand  ;  and 

(h)  Any  bill  of  exchange  or  promissory  note  so  issued  which  entitles  or  is  inlonded 
to  entitle  the  bearer  or  holder  thereof,  without  indorsement  or  without  any 
f  urtlier  or  other  indorsement  than  may  be  thereon  at  the  time  of  the  issuing 
tlicreuf,  to  the  payment  of  money  not  exceeding  on(!  hundred  pounds  on 
demand,  wlicther  the  same  be  so  expressed  or  not  and  in  whatever  form,  and 
by  whomsoever  the  bill  or  note  is  drawn  or  made. 

30.  A   bank  note  issued  duly  stamped,  or  issued   unstamped  by  a  banker  duly 


0 

0 

1 

0 

0 

2 

0 

0 

3 

0 

0 

6 

0 

0 

9 

0 

1 

0 

424  STAMPS 

licensed  or  otherwise  authorised  to  issue  unstamped  bank  notes,  may  he  from  time  to 
time  reissued  without  being  liable  to  any  stamp  duty  by  reason  of  the  reissuing. 

31. — (1)  If  any  banker,  not  being  duly  licensed  or  otherwise  authorised  to  issue 
unstamped  bank  notes,  issues,  or  permits  to  be  issued,  any  bank  note  not  being  duly 
stami^ed,  he  shall  incur  a  fine  of  fifty  pounds. 

(2)  If  any  person  receives  or  takes  in  payment  or  as  a  security  any  bank  note 
issued  unstamped  contrary  to  law,  knowing  the  same  to  have  been  so  issued,  he  shall 
incur  a  fine  of  twenty  pounds. 

As  to  the  composition  for  these  duties,  see  (11)  (b)  above. 

Bill  of  Exchange —  £    s.    d. 

Payable  on  demand  or  at  sight  or  on  presentation  .  .  .001 

And  see  sees.  32,  34,  and  38. 
Bill  op  Exchange  of  any  other  kind  whatsoever  (except  a  Bank  Note)  and 
Promissory   Note    of   any  kind    whatsoever  (except   a  Bank  Note) — 
draAvn,   or  expressed  to  be  payable,  or  actually  paid,  or  indorsed,    or 
in  any  manner  negotiated  in  the  United  Kingdom. 

Where  the  amount  or  value  of  the  money  for  which  the  bill  or  note 

is  drawn  or  made  does  not  exceed  £5 
Exceeds  £6  and  does  not  exceed  £10    ..... 
10  95 

,}        ^o  ,,  00     ..... 

3j  OK)  J,  /O       •  ,  •  .  , 

„        75  „  100     ....  . 

„      100- 
for  every  £100,  and  also  for  any  fractional  jiart  of  £100,  of  such 

amount  or  value      .  .  .  .  .  .  .010 

Exemptions. 

(1)  Bill  or  note  issued   by  the  Bank  of  England  or  the  Bank  of 

Ireland. 

(2)  Draft  or  order  drawn  by  any  banker  in   tlie  United  Kingdom 

upon  any  other  banker  in  the  United  Kingdom,  not  payable  to 
bearer  or  to  order,  and  used  solely  for  the  purpose  of  settling  or 
clearing  any  account  between  such  bankers. 

(3)  Letter  written  by  a  lianker  in  tlie  United  Kingdom  to  any  other 

banker  in  the  United  Kingdom,  directing  the  payment  of  any 
sum  of  money,  the  same  not  being  payable  to  bearer  or  to  order, 
and  such  letter  not  being  sent  or  delivered  to  the  person  to 
whom  payment  is  to  be  made  or  to  any  person  on  his  behalf. 
(I)  Letter  of  credit  granted  in  the  United  Kingdom,  authorising 
drafts  to  lie  drawn  out  of  the  United  Kingdom  payable  in  the 
United  Kingdom. 

(5)  Draft  or  order  drawn  by  the  Paymaster-General  on  behalf  of  the 

Court  of  Chancery  in  Enj^land  or  by  the  Accountant-General 
of  the  Supreme  Court  of  Judicature  in  Ireland. 

(6)  Warrant  or  order  for  the  payment  of  any  annuity  granted  by  the 

National  Debt  Commissioners,  or  for  the  payment  of  any 
dividend  or  interest  on  any  share  in  the  Government  or  Parlia- 
mentary stocks  or  funds. 

(7)  Bill  drawn  by  any  person  under  the  authority  of  the  Admiralty, 

upon  and  jvayable  by  the  Accountant-General  of  the  Navy. 

(8)  Bill  drawn  (according  to  a  form  prescribed   by  Her  Majesty's 

orders  by  any  person  duly  authorised  to  draw  the  same)  upon 
and  payable  out  of  any  public  account  for  any  pay  or  allowance 
of  the  army  or  auxiliary  forces,  or  for  any  other  exjienditure 
connected  therewith. 

(9)  Draft  or  order  drawn  upon  any  lianker  in  the  LTnited  Kingdom 

by  an  officer  of  a  public  department  of  the  State  for  the  payment 
of  money  out  of  a  puljlic  account. 

(10)  Bill  drawn  in  the  United  Kingdom  for  the  sole  purpose  of  re- 

mitting money  to  be  placed  to  any  account  of  public  revenue. 

(11)  Coupon  or  warrant  fur  interest  attached  to  and  issueil  with  any 

security,  or  witli  an  agreement  or  memorandum  for  the  renewal 
or  extension  of  time  for  payment  of  a  securitv. 
And  see  sees.  32,  33,  34,  35,  3G,  37,  38,  and  39. 


STAMrS  425 

As   to   special   exemptions,  see  (18)  (xxv.)  (xxix.)   (xlv.)   (xlvi.)  (liv.) 

(lxix.(&)). 

Exemption  (10)  does  not  apply  unless  the  money  remitted  be  public 
money  or  money  standing  to  a  revenue  account  at  the  time  of  such 
remittance  {TJie  Committee  of  London  Clearing  Rouse  Bankers,  L.  E.  [1896] 
1  Q  B.  219).  With  reference  to  exemption  (11),  observe  the  provision  of 
the  Finance  Act,  1894,  s.  40  :— 

A  coupon  for  interest  on  a  marketaLIe  security  as  defined  hy  the  Stamp  Act,  1891, 
being  one  of  a  set  of  coupons  whether  issued  with  the  security  or  subseq^uently  issued  in 
a  sheet,  shall  not  be  chargeable  with  any  stamp  duty. 

See  Rothschild  &  Sons,  L.  E.  [1894]  2  Q.  B.  142  ;  Australasian  Mortgage 
&  Agency  Co.,  1888,  16  E.  64. 

Post-office  orders  are  regarded  as  not  liable  to  duty  (R.  v.  Gilchrist, 
Car  &  M.  224 ;  3  &  4  Yict.  c":  96,  s.  38 ;  43  &  44  Yict.  c.  33,  s.  1). 

32.  For  the  purposes  of  this  Act  the  expression  "bill  of  exchange"  includes  draft, 
order,  cheque,  and  letter  of  credit,  and  any  document  or  writing  (except  a  bank  note) 
entitling  or  purporting  to  entitle  any  person,  whether  named  therein  or  not,  to  payment 
by  any  other  person  of,  or  to  draw  upon  any  other  person  for,  any  sum  of  money  ;  and 
the  expression  "  bill  of  exchange  payable  on  demand  "  includes — 

(a)  An  order  for  the  payment  of  any  sum  of  money  by  a  bill  of  exchange  or 

promissory  note,  or 'for  the  delivery  of  any  bill  of  exchange  or  promissory 
note  in  satisfaction  of  any  sum  of  nioney,  or  for  the  payment  of  any  sum  of 
money  out  of  any  particular  fund  which  may  or  may  not  be  ayailable,  or  upon 
any  condition  or  contingency  which  may  or  may  not  be  performed  or  happen  ; 
and 

(b)  An  order  for  the  payment  of  any  sum  of  money  weekly,  monthly,  or  at  any 

other  stated  periods,  and  also  an  order  for  the  payment  by  any  person  at  any 
time  after  the  date  thereof  of  any  sum  of  money,  and  sent  or  deliyered  by  the 
person  making  the  same  to  the  person  by  whom  the  payment  is  to  be  made, 
and  not  to  the  person  to  whom  the  payment  is  to  be  made,  or  to  any  person 
on  liis  behalf. 
33.— (1)  For  the  purposes  of  this  Act  the  expression  "promissory  note  includes  any 
document  or  writing  (except  a  bank  note)  containing  a  promise  to  pay  any  sum  of 

nioney.  ■     ^      t     a 

(2)  A  note  promising  the  payment  of  any  sum  of  money  out  of  any  particular  tuna 
which  may  or  mav  not  bo  available,  or  upon  any  condition  or  contingency  which  may 
or  may  not  be  performed  or  happen,  is  to  be  deemed  a  promi.<sory  note  for  that  sum  ot 
money. 

The  meaning  given  to  the  expressions  "  bill  of  exchange,"  "  promissory 

note,"  brings  into  charge  documents  which  are  not  bills  of^  exchange  or 

promissory  notes  apart  from  this  enactment.     The  Bills  of  Exchange  Act, 

1882,  s.  97  (3),  declares  that  it  is  not  to  affect  the  provisions  of  the  Stamp 

Acts.     In  a  question  of  stamp  duty  the  sum  payable  must  be  a  sum  ccrtam 

{Tenncnt,  1818,5  E.  433 ;    Vallcmce,  1879,  Q  E.   1090;  Jfcndcrson,  1895,22 

E.  895  ;  sec  Bills  of  Exchange  Act,  1882,  s.  9).     To  "  Bill  of  excliange  "  are 

referred  the  sclieduled  licadings  "  Cheque,"  "  Draft  for  money,"  "  Letter  of 

credit,"  and  "  Order  for  the  payment  of  money."     An  order  for  payment  of 

balance  of  price,  addressed  by  the  seller  to  tlie  ])Uicliaser  and  delivered  to 

the  ]>ayee,  is  regarded  in  England  as  an  assignation  of  the  debt  (see  Coninjcincc 

on  Sale),  and  not  as  an  order  for  the  payment  of  money.     To  the  latter  it  is 

essential  that  the  drawee  hold  moneys  of  the  drawer,  subject  to  his  order 

{Brice,  L.  li.  3  Q.  B.  U.  509 ;  Buck,  L.  \l.  3  Q.  B.  D.  080 ;  Fisher,  27  W.  E. 

301).     As  to  the  views  of  the  Scots  Courts  in  regard  to  such  a  document, 

see  Ritchie,  1870,  8  M.  815,  and  the  cases  there  cited.     Sec  also  Ersk.  iii. 

5.  2 ;  liell,  Com.  ii.  10.      The  charge  is  on  the  principal  sum  in  the  bill ; 

interest  is  not  chargcaljle  {Prcnssivg,  4  B.  &  Aid.  204 ;   WilU,  4  Tyr.  720). 

The  stamp  is  exhausted  wJion  the  bill,  l)eing  for  value,  has  been  satished  by 


426  STAMPS 

the  acceptor ;  by  the  drawer  if  an  accommodation  bill  (Calloiv,  3  M.  &  S. 
95 ;  Hubbard,  4  Bing.  390;  Lazarus,  2  Q.  B.  459,  11  L.  J.  Q.  B.  310).  A 
post-dated  cheque  is  chargeable  as  a  bill  of  exchange  payable  on  demand, 
whether  to  order  or  bearer  {Roijal  Bank  of  Scotland,  L.  E.  [1894]  2  Q.  B. 
715).  It  is  to  be  observed  that  an  order  for  the  transfer  of  money  from 
one  account  to  another  at  the  same  bank  falls  under  the  charge  {Tltc  Com- 
onittee  of  London  Clearing  House  Bankers,  L.  E.  [1896]  1  Q.  B.  219). 

It  is  of  the  essence  of  a  promissory  note  that  it  be  a  unilateral  obligation, 
which  becomes  effectual  on  delivery,  and  requires  nothing  to  be  done  on  the 
other  side  to  make  it  operative  {Thomson,  1894,  22  E.  16,  per  Ld.  M'Laren ;  cf. 
Bowen,  L.  J.,  in  Mortgage  Insurance  Corporation,  infra  cit.).  It  must  contain 
a  promise  to  pay  a  sum  certain  at  a  fixed  date  to  a  person  named  (  Vallancc, 
1879,  6  E.  1099).  In  determining  the  question  whether  a  document  is  an 
agreement  or  a  promissory  note, — it  cannot  be  both, — the  intention  of  the 
parties  is  relevant  {Mortgage  Insurance  Corporation,  L.  E.  20  Q.  B.  D.  045, 
21  Q.  B.  D.  352;  see  s.v.  "Agreement").  A  document  may  be  a  promissory 
note,  and  yet  be  chargeable  under  anotlier  head,  e.g.  debenture  {British 
India  Steam  Navigation  Co.,  L.  E.  7  Q.  B.  D.  165).  The  fact  that  coupons 
are  attached  to  it  does  not  alter  its  character  {ib.).  See  Ashby,  M.  &  P. 
186 ;  Green,  1  C.  &  P.  451 ;  Brooks,  2  M.  &  W.  74;  LoveU,  6  C.  &  P.  238 ; 
Morris,  1  Str.  629  (see  Tilsley,  Stamp)  Laws,  3rd  ed.,  119) ;  Vallance,  siqn^a  ; 
Blyth,  1879,  6  E.  1102, — where  the  documents  in  issue  were  held  to  be 
promissory  notes, — and  Tennent,  Thomson,  and  Henderson,  supra,  where  they 
were  held  not  to  be  promissory  notes. 

Observe  that  bills  charged  on  local  rates  repayable  not  later  than  twelve 
months  from  date  are  dutiable  as  promissory  notes  and  not  as  marketable 
securities  (60  &  61  Vict.  c.  24,  s.  8). 

34. — (1)  The  fixed  duty  of  one  penny  on  a  bill  of  exchange  payable  on  demand  or  at 
sight  or  on  presentation  may  be  denoted  by  an  adhesive  stamp,  which,  where  the  bill  is 
drawn  in  the  United  Kingdom,  is  to  be  cancelled  by  the  person  by  whom  the  bill  is 
signed  before  he  delivers  it  out  of  his  hands,  custody,  or  power. 

(2)  The  ad  valorem  duties  upon  bills  of  exchange  and  promissory  notes  drawn  or 
made  out  of  the  United  Kingdom  are  to  be  denoted  by  adhesive  stamps. 

The  adhesive  stamp  under  subsec.  (1)  is  the  "Postage  and  Eevenue" 
stamp,  under  subsec.  (2)  an  appropriated  stamp  provided  by  sec.  10. 
(See  (5)  above.) 

35. — (1)  Every  person  into  whose  hands  any  bill  of  exchange  or  promissory  note  drawn 
or  made  out  of  the  United  Kingdom  comes  in  the  United  Kingdom  before  it  is  stamped 
shall,  before  he  presents  for  payment,  or  indorses,  transfers,  or  in  anj'  manner  negotiates, 
or  pays  tlie  bill  or  note,  atiix  thereto  a  proper  adhesive  stamp  or  proper  adhesive  stamjis 
of  sufficient  amount,  and  cancel  every  stamp  so  affixed  thereto. 

(2)  Provided  as  follows  : 

(a)  If  at  the  time  when  any  such  bill  or  note  comes  into  the  hands  of  any  hond 
fide  holder  there  is  affixed  thereto  an  adhesive  stamp  eft'ectually  cancelled, 
the  stamp  shall,  so  far  as  relates  to  the  holder,  be  deemed  to  be  duly  can- 
celled, although  it  may  not  aj^pear  to  have  been  affixed  or  cancelled  lay  the 
proper  person  ; 

Q))  If  at  the  time  when  any  such  l)ill  or  note  comes  into  the  hands  of  any  hona 
fide  holder  there  is  affixed  thereto  an  adhesive  stamp  not  duly  cancelled,  it 
shall  be  competent  for  the  holder  to  cancel  the  stamp  as  if  he  were  the 
person  by  whom  it  Avas  affixed,  and  upon  his  so  doing  the  bill  or  note  shall 
be  deemed  duly  stamped,  and  as  valid  and  available  as  if  the  stamp  had 
been  cancelled  by  the  person  by  Avliom  it  vras  affixed. 

(3)  But  neither  of  the  foregoing  provisoes  is  to  relieve  any  person  from  any  fine  or 
penalty  incurred  by  him  for  not  cancelling  an  adhesive  stamp. 

The  adhesive  stamps  for  ad  vcdorem  duties  on  foreign  bills  and  notes  are 


STAMPS  427 

the  appropriated  stamps  provided  by  sec.  10  (see  (5)  above).  Until  presented 
for  payment  or  indorsed  or  transferred,  or  in  any  manner  negotiated  or 
paid,  a  foreign  bill  is  admissible  in  evidence  although  unstamped  (Sha7'2yks, 
2  H.  &  N.  57,  26  L.  J.  Ex.  302 ;  Gril/in,  L.  E.  3  Q.  B.  753).  It  appears 
that  a  foreign  bill  may  be  cancelled  at  any  time  before  verdict  (  Viale,  30 
L.  T.  E.  453);  and  if  it  be  ex  facie  stamped  and  cancelled  as  required  by 
the  Act,  the  presumption  is  that  it  was  stamped  and  cancelled  as  required 
(Bradkmgh,  L.  E.  3  C.  P.  286  ;  Marc,  31  L.  T.  E.  372). 

36.  A  Lill  of  exchange  or  promissory  note  -wliich  purj^orts  to  Le  drawn  or  made  out  of 
the  United  Kingdom  is,  for  the  purpose  of  determining  tlie  mode  in  which  stamp  duty 
thereon  is  to  be  denoted,  to  be  deemed  to  have  been  so  drawn  or  made,  although  it  may 
in  fact  have  been  drawn  or  made  within  the  United  Kingdom. 

For  the  purposes  of  the  Stamp  Act,  1891,  the  Channel  Islands  and  the 
Isle  of  Man  are  not  within  the  United  Elngdom  (see  Griffin,  supra  cit.). 
They  have  their  own  revenue  laws. 

37. — (1)  "Where  a  bill  of  exchange  or  promissory  note  has  been  written  on  material 
bearing  an  impressed  stamp  of  sutHcient  amount  but  of  improper  denomination,  it  may 
be  stamped  with  the  proper  stamp  on  payment  of  the  duty,  and  a  penalty  of  forty 
shillings  if  the  bill  or  note  be  not  then  payable  according  to  its  tenor,  or  of  ten  pounds 
if  the  same  be  so  payable. 

(2)  Except  as  aforesaid,  no  bill  of  exchange  or  promissory  note  shall  be  stamped  with 
an  impressed  stamp  after  the  execution  thereof. 

38. — (1)  Every  person  who  issues,  indorses,  transfers,  negotiates,  presents  for  pay- 
ment, or  pays  any  bill  of  exchange  or  jjromissory  note  lial)le  to  duty  and  not  being  duly 
.'^tamped  sbill  incur  a  fine  of  ten  pounds,  and  the  person  who  takes  or  receives  from  any 
other  person  any  such  bill  or  note  either  in  payment  or  as  a  security,  or  by  purchase  or 
otherwise,  shallnot  be  entitled  to  recover  thereon,  or  to  make  the  same  available  for  any 
purpose  whatever. 

(2)  Provided  that  if  any  bill  of  exchange  payable  on  demand  or  at  sight  or  on  prc- 
.sentation,  is  presented  for  payment  unstami^ed,  tlie  jierson  to  whom  it  is  presented  may 
afhx  thereto  an  adhesive  stamp  of  one  penny,  and  cancel  the  same,  as  if  he  had  been  the 
<lrawer  of  the  bill,  and  may  thereupon  pay  the  sum  in  the  bill  mentioned,  and  charge 
the  duty  in  account  against  the  person  by  whom  the  1)ill  was  drawn,  or  deduct  the  duty 
from  the  said  sum,  and  the  bill  is,  so  far  as  respects  the  duty,  to  be  deemed  valid  and 
available. 

(3)  But  the  foregoing  proviso  is  not  to  relieve  any  person  from  any  fine  or  penalty 
incurred  hy  him  in  relation  to  such  bill. 

This  section  applies  to  all  Ijills  and  notes,  foreign  and  inland.  Under  sec. 
8  (see  (4)  above)  cancellation  is  essential  to  a  bill  being  "  duly  stamped  " ; 
under  sec.  38  it  is  otherwise  (see  Marc,  31  L.  T.  E.  372).  As  to  the  scope 
of  the  words  "  issues,  indorses,  transfers,  negotiates,  presents  for  payment, 
or  pays,"  see  Sharpies,  2  II.  &  N.  57,  26  L.  J.  Ex.  302 ;  Griffin,  L.  E.  3 
Q.  B.  753 ;  and  cf.  L'roddclius,  1887,  14  It.  530.  The  alteration  of  a  bill 
prior  to  issue  does  not  make  it  a  new  instrument  requiring  a  fresh  stamp 
(Scholfirld,  L.E.  [1894]  2  Q.  B.  660;  [1895]  1  Q.  B.  i>:U]). 

39.  When  a  bill  of  exchange  is  drawn  in  a  set  according  to  the  custom  of  merchants, 
and  one  of  the  set  is  duly  stamped,  the  other  or  others  of  the  set  shall,  unless  issued  or 
in  .some  manner  negotiated  apart  from  the  .stam])ed  bill,  be  exempt  from  duty  ;  and 
upon  proof  of  the  loss  or  destruction  of  a  duly   slami)cd   bill   forming  one  of  a  set,  any 
other  bill  of  the  .set  which  has  not  been  issued  or  in  any  manner  negotiated  apart  from 
the  lost  or  destroyed  bill  may,  although  unstamped,  be  admitted  in  evidence  to  i)rove 
the  contents  of  the  lost  or  destroyed  bill. 

£     ,s\    d. 
Vall  of  Lading  of  or  for  any  goods,  merchandise,  or  cfTocts  to  be  exported 

or  carried  coastwise  .  .  .  .  .  .  .       0     0     G 

And  see  sec.  40. 

IJilU  of  Ladin'j. 

40. — (1)  A  bill  of  lading  is  not  to  be  stamped  after  the  execution  thereof. 


428  STAMPS 

(2)  Every  person  who  makes  or  executes  any  bill  of  lading  not  duly  stamped  shall 
incur  a  fine  of  fifty  pounds. 

Documents  similar  in  form,  relating  to   inland   navigation,  are  liable 
under  the  head  of  agreement. 

Bill  of  Sale — 

Absolute.     See  Conveyance  on  Sale. 
By  way  of  security.     See  Mortgage,  etc. 
And  see  sec.  41. 

Bills  of  Sale. 

41.  A  bill  of  sale  is  not  to  be  registered  under  any  Act  for  the  time  being  in  force 
relating  to  the  registration  of  bills  of  sale  unless  the  original,  duly  stamped,  is  produced 
to  the  proper  officer. 

Bond  for  securing  the  payment  or  repayment  of  money  or  the  transfer  or  retransfer 
of  stock. 

See  Mortgage,  etc.,  and  Marketable  Security. 
Bond  in  relation  to  any  annuity  upon  the  original  creation  and  sale  thereof. 

See  Conveyance  on  Sale,  and  sec.  60. 
Bond,  Covenant,  or  Instrument  of  any  kind  whatsoever. 

(1)  Being  the  only  or  princij^al  or  primary  security  for  any  annuity 

{except  uijon  the  original  creation  thereof  by  way  of  sale  or  security, 
and  except  a  superannuation  annuity),  or  for  any  sum  or  sums  of 
money  at  stated  periods,  not  being  interest  for  any  principal  sum 
secured  by  a  duly  stamped  instrument,  nor  rent  reserved  by  a 
lease  or  tack.  £    s.     d, 

/"The    same    ad 
■n  T    n    ■  1  •  -111  -1  il    valorem  duty 

lor  a  definite  and  certain  period,  so  that  the  total  amount  to  be  J  as  a  bond  or 
ultimately  payable  can  be  ascertained.  |  covenant  for 

v.  amount. 

For  the  term  of  life  or  any  other  indefinite  period. 

For  every  £5,  and  also  for  any  fractional  part  of  £5,  of  the  annuity 

or  sum  periodically  payable  .         .  .  .  .  .026 

(2)  Being  a  collateral  or  auxiliar}-  or  additional  or  substituted  security 

for  any  of  the  above-mentioned  purposes  where  the  principal  or 
primary  instrument  is  duly  stamped. 


Where  the  total  amount  to  be  ultimately  payable  can  be  ascertained 


/"The  same  ad 
valorem  duty 
as  a  bond  or 
covenant  of 
the  same  kind 
for  such  total 
amount. 


In  any  other  case  : 

For  every  £5,  and  also  for  any  fractional  part  of  £5,  of  the  annuity 

or  sum  periodically  payable  .  .  .  .  .006 

(3)  Being  a  grant  or  contract  for  payment  of  a  superannuation  annuity, 
that  is  to  say  a  deferred  life  annuity  granted  or  secured  to  any  person 
in  consideration  of  annual  premiums  payable  until  he  attains  a 
specified  age  and  so  as  to  commence  on  his  attaining  that  age. 
For  every  £5  and  also  for  any  fractional  part  of  £5  of  the  annuity     0     0    6 

If  the  obligation  be  to  pay  an  annuity  at  certain  stated  periods  the 
aggregate  of  the  periodical  payments  is  dutiable.  If  the  obligation  be  to 
pay  a  sum  at  certain  stated  intervals,  e.g.  weekly,  monthly,  or  quarterly, 
and  there  is  nothing  in  the  terms  of  the  instrument  to  indicate  an  annual 
payment,  the  dutiable  amount  is  the  sum  payable  weekly,  monthly,  or 
quarterly  (cf.  Cliford,  L.  K.  [189G]  2  Q.  B.  187,  with  Lewis  &  Zeivis,  L.  K. 
[1898]  2  Q.  B.  290). 

Observe  that  "  covenant "  under  this  head  is  not  in  practice  limited  to 
instruments  under  seal  or  contaiuincj  a  clause  of  recristration. 

The  "  instrument  of  any  kind  whatsoever  "  must  be  ejusdem  generis  with 
"bond"  or  "covenant"  to  be  chargeable  under  that  head  (Thames  Conserv- 
ancy, L.  E.  18  Q.  B.  D.  279). 


STAMPS  429 

Observe  that  the  term  "security"  has  the  same  meaning  mider  this 
head  and  under  that  of  "  Mortgage  "  {Siccctmcat  Automatic  Delivery  Co.,  L.  E. 
[1895]  1  Q.  B.  484).  In  order  to  attract  the  charge  the  instrument  must 
contain  a  personal  obligation  to  pay ;  and  so  an  instrument  operating  to 
charge  lands  with  an  annuity,  or  as  a  direction  to  trustees  to  pay  an  annuity, 
is  in  itself  not  chargeable  as  a  bond. 

The  head  "  Lease  or  Tack  "  applies  only  to  a  lease  or  tack  of  heritable 
subjects  {Sweetmeat  Automatic  Delivery  Co.,  stqyra),  and,  accordingly,  an 
agreement  to  pay  a  separate  rent  for  furniture,  or  for  a  right  to  set  up 
automatic  machines,  or  for  the  use  of  telephone  lines  or  of  a  patented  in- 
vention, is  chargeable  not  as  a  lease  but  as  a  bond,  save  in  cases  where  the 
right  given  to  the  licensee  is  heritable  in  character  (National  Telephone 
Co.,  79  L.  T.  E.  514;  Siveetmeat  Automatic  Delivery  Co.,  supra;  Heap,  L.  E. 
42  Ch.  D.  461  ;  Callender  and  Ohan  Rivy.  Co.,  1888,  15  E.  634;  cf.  Thames 
Conservancy,  supra).  The  charge  does  not  extend  to  an  agreement  for 
payment  of  future  services  {Mounsey,  7  B.  &  C.  403),  nor  to  a  bond  for 
securing  payments  of  purchase  money,  where  conveyance  on  sale  duty  has 
been  paid  under  sec.  56  (4)  (see  s.v.  "  Conveyance  on  Sale").  The  provision 
relating  to  an  unlimited  security  (s.  88 ;  see  s.v.  "  Mortgage "  below)  does 
not  apply  to  this  charge.  Annuities  may  be  payable  concurrently ;  or  a 
joint  annuity  may  be  subject  to  diminution  on  the  death  of  one  of  the 
parties ;  or  an  annuity  may  be  susceptible  of  increase.  The  charge  is,  in 
the  first  case,  on  both  annuities ;  in  the  second  case,  on  the  original  annuity ; 
and,  in  the  third  case,  on  the  annuity  as  increased. 

See  also  below  s.v.  "  Conveyance  on  Sale,"  "  Mortgage,"  "  Policy  of  Life 

Insurance." 

£    s.    d. 

BoxD  given  pursuant  to  tlie  directions  of  any  Act,  or  of  the  Commis- 
sioners or  the  Commissioners  of  Customs,  or  any  of  their  officers,  for  or 
in  respect  of  any  of  the  duties  of  excise  or  customs,  or  for  preventing 
frauds  or  evasions  thereof,  or  for  any  other  matter  or  thing  relating 
thereto. 

/'The  same  ad 
valoremduty 
as  a  bond  for 
the  ainouiit 
of  the  peu- 
ally. 

In  any  other  case       .  .  .  .  .  .  .050 


Where  the  penalty  of  the  bond  does  not  exceed  £150 


Exemption. 

Bond  given  as  aforesaid  upon,  or  in  relation  to,  the  receiving  or 
obtaining,  or  for  entitling  any  person  to  receive  or  obtain, 
any  drawback  of  any  duty  of  excise  or  customs,  for  or  in  respect 
of  any  goods,  wares,  or  mercliandise  exported  or  shipped  to  l)e 
exported  from  the  United  Kingdom  to  any  i)arts  l)eyond  the 
seas,  or  upon  or  in  relation  to  tlie  obtaining  of  any  debenture 
or  certificate  for  entitling  any  person  to  receive  any  such  draw- 
back as  aforesaid. 
And  see  sec.  42. 

Bonds  fjiven  in  relation  to  the  Duties  of  Excise. 

42.  If  any  person  required  by  any  Act  for  the  time  being  in  force  or  by  the  Com- 
missioners, or  any  of  their  officers,  to  give  or  enter  into  any  bond  for  or  in  respect  of  any 
duty  of  excise,  or  for  ])revf;ntiiig  any  fraud  or  evasion  in  relation  to  any  siidi  duty,  or 
for  any  matter  or  thing  relating  thereto,  includes  in  one  and  the  same  bond  any  goods 
or  things  belonging  to  more  ])erson8  tlian  one,  not  being  partners  or  joint-tenants, 
or  tenants  in  common,  he  shall  for  every  oll'ence  incur  a  fine  of  fifty  pounds. 

£     s.     d. 
Bond  on  obtaining  letters  of  administration  in  England  or  lrclan<l,  or  a 

confirmation  of  testament  in  Scotland        .  .  .  .  .050 


430 


STAMPS 


Exemptions. 

(1)  Bond  given  by  the  widow,  child,  father,  mother,  brother  or  sister, 

of  any  common  seaman,  marine  or  soldier,  dying  in  the  service 
of  Her  Majesty. 

(2)  Bond  given  by  any  person  where  the  estate  to  be  administered 

does  not  exceed  £100  in  value. 


£    s.    (I 


Bond  of  any  kind  whatsoever  not  specifically  charged  with  any  duty  : 

Where  the  amount  limited  to  be  recoverable  does  not  exceed  £300 


The  same  ad 
iv.lorem  duty 
as  a  bond  for 
the  amount 
limited. 

0  10     0 


In  any  other  case  ...... 

Fidelity  bonds  come  under  this  charge. 

The  second  general  exemption  (see  (17)  above)  is  regarded  as  covering 
bottomry  bonds.  As  to  judicial  bonds,  see  (19)  above.  As  to  special 
exemptions,  see  (18)  (v.)  (xviii.)  (xxiii.)  (xxv.)  (xxxvii.)  (Iv.)  (Ivi.)  (Ixiii.) 
(lxix.(&)). 

Bond,  accompanied  with  a  deposit  of  title  deeds,  for  making  a  mortgage, 
wadset,  or  other  security  on  any  estate  or  property  therein  comprised. 
See  Mortgage,  etc.,  and  sec.  86. 
Bond,  Declaration,  or  other  Deed  or  Writing  for  making  redeemable 
any  disposition,  assignation,  or  tack,  apparently  absolute,  but  intended 
only  as  a  security. 

See  Mortgage,  etc.,  and  sees.  23  and  86. 
Certificate  to  be  taken  out  yearly — 

(1)  By  every  person  admitted  or  enrolled  in  England  or  Ireland  as  a 

solicitor,  or  in  Scotland  as  a  law  agent  or  writer  to  the  signet, 
or  in  any  part  of  the  United  Kingdom  as  a  notary  public. 

(2)  By  every  other  legally  qualified  person  who  carries  on  business 

in  England  or  Ireland  as  a  conveyancer,  special  pleader,  or 
draftsman  in  equity,  and  is  obliged  by  law  to  take  out  such  a 
certificate. 


If  such  person  practises  or 
carries  on  his  business 


In  Scotland,  within  the  city  or  shire  of 
Edinburgh       .... 

In  Scotland,  beyond   the   above-men- > 
tioned  limits    .  .  .  .\ 

And  see  sees.  43,  44, 45,  [46],  47,  and  48. 

The  three  years  are  calculated  from  the  date  of  the  law  agent's  admission^ 
whether  he  has  or  has  not  practised  from  that  date.  The  words  "  or  has 
carried  on  business  "  refer  to  paragraph  (2)  of  the  charge. 

Certificates  of  Solicitors  and  others. 

43. — (1)  Every  person  who  in  any  part  of  the  United  Kingdom — 

(«)  Directly  or  indirectly  acts  or  practises  as  a  solicitor  or  law  agent  in 
any  Court,  or  as  a  notary  public,  without  having  in  force  at  the 
time  a  duly  stamped  certificate  ;  or 
(b)  On  applying  for  his  certificate  does  not  truly  specify  the  facts  and 
circumstances  upon  which  the  amount  of  duty  chargeable  upon  the 
certificate  depends  : 
shall  incur  a  fine  of  fifty  pounds,  and  shall  be  incapable  of  maintaining  any  action  or 
suit  for  the  recovery  of  any  fee,  reward,  or  disbursement  on  account  of  or  in  relation  to 
any  act  or  proceeding  done  or  taken  by  him  in  any  such  capacity. 

(2)  Every  person  in  whose  name,  either  alone  or  together  with  any  other  person,  an}'' 
proceeding  is  taken  in  any  Court,  shall,  unless  the  proceeding  is  set' aside  by  the  Court 
as  irregular,  or  unless  the  contrary  is  otherwise  satisfactorily  proved,  be  deemed  to  have 
acted  in  the  proceeding. 


If  he  has  been  admitted 

or  enrolled,  or  has 
carried  on  business,  for 
three  years  or  upwards. 

If  he  has  not  been  so  long 

admitted  or  enrolled,  or 

has  not  so  long  carried 

on  business. 

9     0     0 
6     0     0 

4  10     0 
3     0     0 

STAMPS  431 

(3)  Notliing  in  this  Act  shall  require  a  stamped  certificate  to  be  taken  out  by  a  person 
•wbo  is  by  law  authorised  to  act  as  solicitor  of  a  public  department  without  admission, 
or  by  any  assistant  or  clerk  or  officer  appointed  to  act  under  the  direction  of  such 
solicitor. 

44.  Every  person  who  (not  being  a  barrister,  or  a  duly  certificated  solicitor,  law 
agent,  writer  to  the  signet,  notary  public,  conveyancer,  special  i^leader,  or  draftsman  in 
equity)  either  directly  or  indirectly,  for  or  in  expectation  of  any  fee,  gain,  or  reward, 
draws  or  prepares  any  instrument  relating  to  real  or  personal  estate,  or  any  proceeding 
in  law  or  equity,  shall  incur  a  fine  of  fifty  pounds. 

Provided  as  follows — 

(1)  This  section  does  not  extend  to — 

(a)  Any  public  officer  drawing  or  preparing  instruments  in  the  course  of  his 

duty ;  or 

(b)  Any  person  employed  merely  to  engross  any  instrument  or  proceeding. 

(2)  The  expression  "  instrument "  in  this  section  does  not  include — 

(a)  A  will  or  other  testamentary  instrument ;  or 
(6)  An  agreement  under  hand  only  ;  or 

(c)  A  letter  or  power  of  attorney  ;  or 

(d)  A  transfer  of  stock  containing  no  trust  or  limitation  thereof. 

Where  a  qualified  law  agent  or  v/riter  to  the  signet,  being  employed  by 
a  duly  certificated  law  agent  or  writer  to  the  signet,  is  paid  wholly  by  salary, 
and  confines  himself  to  the  duties  of  his  employment,  he  is  not  required  to 
take  out  a  certificate ;  and  the  same  rule  is  applied  in  the  case  of  a  notary. 

45.  It  shall  not  be  necessary  for  any  person  required  to  take  out  a  stamped  certificate 
to  take  out  in  England,  or  in  Scotland,  or  in  Ireland  more  than  one  certificate  for  any 
one  year. 

•  •  •  '  ■  *.'.■.* 

47.  Every  person  required  to  take  out  a  certificate  to  authorise  him  to  j)ractise  : — 

(a)  In  Scotland,  as  a  law  agent  or  writer  to  the  signet ;  or 

(c)  In  anv  part  of  the  United  Kingdom,  as  a  notary  public  ; 

shall  in  every  year  before  he  does  any  act  in  any  of  the  aforesaid  capacities, 
deliver  to  the  Commissioners,  or  to  their  proper  officer,  in  such  manner  and 
form  as  they  direct,  a  note  in  writing  stating  his  full  name  and  the  place 
where  he  carries  on  his  business,  and  thereupon,  and  upon  payment  of  the 
proper  duty,  shall  be  entitled  to  a  certificate,  which  is  to  be  duly  stamped  and 
issued  to  him  by  the  Commissioners. 

48.  The  certificates  in  this  section  specified  are  to  be  dated  and  to  expire  at  the  times 
hereinafter  in  that  behalf  mentioned  ;  that  is  to  say, 

(a)  The  certificates  of  law  agents,  writers  to  the  signet,  and  notaries  public  in  Scotland, 
and  of  conveyancers,  special  pleaders,  and  draftsmen  in  equity  in  England,  are 
to  be  dated,  if  taken  out  between  the  thirty-first  of  October  and  the  first  of 
December,  on  the  first  of  November,  and  if  taken  out  at  any  other  time,  on 
the  day  on  which  they  are  issued,  and  are  in  all  cases  to  expire  on  the  thirty- 
first  of  October  next  after  their  date. 

£    s.    (I 
Certificate  of    any    goods,  wares,  or    merchandise,    having    been    duly 
entered  inwards,   which  shall  be  entered  outwards  for  exportation  at 
the  port  of  importation,  or  be  removed  from  thence  to  any  other  port 
for  the  more  convenient  exportation  thereof,  wlierc  such  certificate  is 
issued  for  enabling  a  person  to  obtain  a  debenture   or  certificate   en- 
titling him  to  receive  a  drawback  of  any  duty  of  customs 
CnARTKU ''of  resignation,  or  of  confirmation,   or  of    novodamus    or    ujwn 
apprising,  or  upon  a  decreet  of  adjudication,  or  sale  of  any  lands,  or 
other  heritaljlc  subjects  in  Scotland  ..... 

Charter  Party  .  •  •  •  •  •  •  .      0    0    G 

And  see  sees.  49,  50,  and  51. 

Charter-parties. 
49._(1)  For  the  purposes  of  this  Act  the  expression  "charter-party"  includes  any 
arTeement  or  contract  for  the  charter  of  any  shi})  or  vessel  or  any  memorandum,  letter, 
or  other  writing  between  the  captain,  master,  or  owner  of  any  ship  or  vessel,  and  any 


0    4    0 
0    5     0 


432  STAMPS 

other  person  for  or  relating  to  the  freight  or  conveyance  of  any  money,  goods,  or  effects 
on  board  of  the  ship  or  vessel. 

(2)  The  duty  upon  a  charter-party  may  be  denoted  by  an  adhesive  stamp,  which  is 
to  be  cancelled  by  the  person  by  whom  the  instrument  is  last  executed,  or  by  whose 
execution  it  is  completed  as  a  binding  contract. 

The  words  "any  memorandum,  letter,  or  other  writing"  must  be 
cjusderii  generis  with  "  charter-party  "  to  be  chargeable  as  such  {Eein,  L.  K. 
2  Q.  B.  144). 

50.  Where  a  charter-party  is  first  executed  out  of  the  United  Kingdom  without 
being  duly  stamped,  any  party  thereto  may,  within  ten  days  after  it  has  been  first 
received  in  the  United  Kiugdom,  and  before  it  has  been  executed  l)y  any  person  in  the 
United  Kingdom,  affix  thereto  an  adhesive  stamp  denoting  the  duty  chargeable 
thereon,  and  at  the  same  time  cancel  such  adhesive  stamp,  and  the  instrument  when  so 
stamped  shall  be  deemed  duly  stamped. 

51.  A  charter-party  may  be  stamped  with  an  impressed  stamp  after  execution  upon 
the  following  terms  ;  that  is  to  say, 

(1)  Within  seven  days  after  the  first  execution  thereof,  on  payment  of  the  duty 

and  a  penalty  of  four  shillings  and  sixpence  ; 

(2)  After  seven  days,  but  within  one  month  after  the  first  execution  thereof,  on 

payment  of  the  duty  and  a  penalty  of  ten  pounds  ; 
and  shall  not  in  any  other  case  be  stamped  with  an  impressed  stamp. 

This  section  does  not  apply  to  a  charter-party  wholly  executed  abroad. 
As  to  such  a  document,  see  sec.  15  (3)  {The  Belfort,  L.  E.  9  P.  D.  215 ; 

see  (9)  above). 

£   s.    d. 
Cheque.    See  Bill  of  Exchange. 
Clare  Constat.     See  Precept  and  Writ. 
Colonial  Security.    See  Marketable  Security  and  sec.  82. 
Commission  : 

(1)  To  any  officer  in  the  army,  or  in  the  corps  of  Royal  Marines  .       1  10    0 

(2)  To  any  officer  in  the  navy      .  .  .  .  .  .050 

Exemption. 

Commission  to  any  officer  of  militia,  yeomanry,  or  volunteers. 

Commission  of  Lunacy  .  .  .  .  .  .  .050 

Commission  to  act  as  a  notary  public  in  Scotland.     See  Faculty. 
Commission  in  the  nature  of  a  power  of  attorney  in  Scotland.     See  Letter 

or  Power  of  Attorney. 
•Conditional   Surrender  of  any  copyhold  or  customary  estate  by  way 

of  mortgage.     See  Mortgage,  etc.,  and  sees.  86  and  87. 
€ong6  d'Elire.     See  Grant. 
Constat  of  Letters  Patent.    See  Exemplification. 
Contract.    See  Agreement. 

Contract  Note  for  or  relating  to  the  sale  or  purchase  of  any  stock  or 
marketable  security — 

Of  the  value  of  £5  and  under  the  value  of  £100  .  .  .001 

„  £100  or  upwards  .  .  .  .  .006 

And  see  sees.  52  &  53. 
52.— (1)  For  the  purposes  of  this  Act  the  expression  "  contract  note"  means  the  note 
sent  by  a  broker   or  agent  to  his  jirincipal  (except  Avhere  such  principal  is  acting 
as  broker  or  agent  for  a  principal)  advising  him  of  the  sale  or  purchase  of  any  stock  or 
marketable  security. 

(2)  Where  a  note  advises  the  sale  or  purchase  of  more  than  one  description  of  stock 
or  marketable  security,  the  note  shall  be  deemed  to  be  as  many  contract  notes  as  there 
are  descriptions  of  stock  or  security  sold  or  purchased. 

(3)  The  duty  of  one  penny  on  a  contract  note  may  be  denoted  by  an  adhesive  stamp, 
and  the  duty  of  one  shilling  (56  Vict.  c.  7,  s.  3  (1))  on  a  contract  note  is  to  be  denoted 
by  an  adhesive  stamp  appropriated  to  a  contract  note  (ib.  s.  3  (2)). 

(4)  Every  adhesive  stamj^  on  a  contract  note  is  to  be  cancelled  by  the  person  by 
whom  the  note  is  executed. 

A  continuation  note  is  to  be  regarded  as  a  contract  note,  advising  the 


STAMPS 


433 


sale  or  purchase  of  stock,  etc.,  for  one  account,  and  the  purchase  or  sale 
thereof  for  the  next  account,  and  as  liable  to  two  stamps  accordingly. 

53. — (1)  Any  person  wlio  effects  any  sale  or  purctaso  of  any  stock  or  marketable 
security,  of  the  value  of  five  pounds  or  upwards,  as  a  broker  or  agent,  sliall  forthwith 
make  and  execute  a  contract  note  and  transmit  the  same  to  his  principal,  and  in  default 
of  so  doing  shall  incur  a  fine  of  twenty  pounds  [see  Learoyd,  L.  R.  [1894]  2  Q.  B.  114]. 

(2)  Every  person  who  makes  or  executes  any  contract  note  chargeable  Avith  dutv, 
and  not  being  dulv  stamped,  shall  incur  a  fine  of  twenty  pounds  [see  Ld.  Adv.  v.  Thomson, 
1897,  24  R.  543]. " 

(3)  Xo  broker,  agent,  or  other  person  shall  have  any  legal  claim  to  any  charge  for 
brokerage,  commission,  or  agency,  with  reference  to  the  sale  or  purchase  of  any  stock 
or  marketable  security  of  the  value  of  five  pounds  or  upwards  mentioned  or  referred  to 
in  an}-  contract  note,  unless  the  note  is  duly  stamped. 

Observe  that  this  subsection  applies  where  a  person  required  to  make, 
execute,  and  transmit  a  contract  note  fails  to  do  so,  in  the  same  manner  as 
if  he  had  made,  executed,  and  transmitted  a  contract  note  not  duly  stamped 
(61  &  62  Vict.  c.  46,  s.  7  (1)). 

(4)  The  duty  of  one  shilling  (56  Vict.  c.  7,  s.  3  (1))  wpon  a  contract  note  may  be 
added  to  the  charge  for  brokerage  or  agency. 

Sec.  3  (2)  of  56  Yict.  c.  7  provides  that  the  duty  of  one  shilling  is  to  be 
denoted  by  an  adhesive  stamp  appropriated  to  a  contract  note,  and  may  be 
added  to  the  charge  for  brokerage  or  agency. 

Conveyance  or  Transfer,  whether  on  sale  or  otherwise, —  £    s.    d. 

(1)  Of  any  stock  of  the  Bank  of  England  .  .  .  .079 

(2)  Of  any  stock  of  the  Government  of  Canada  inscribed  in  books 

kept  in  the  United  Kingdom,  or  of  any  Colonial  stock  to  which 
the  Colonial  Stock  Act,  1877,  applies — 

For  every  £100,  and  also  for  any  fractional  part  of  £100,  of 

the  normal  amount  of  stock  transferred        .  .  .026 

And  see  sec.  62. 

Sec.  62  (see  s.v.  "  Conveyance  or  Transfer  "  of  any  kind  not  hereinbefore 
described)  provides,  inter  alia,  that  a  conveyance  or  transfer  made  for 
effectuating  the  appointment  of  a  new  trustee  is  not  to  be  charged  witli  any 
higher  duty  than  10s.  (see  s.r.  "  Appointment "  of  a  new  trustee).  As  to 
transfer  of  stock  by  way  of  mortgage,  see  sec.  23  (see  s.v.  "Agreement," 
above). 


Conveyance  or  Transfer  on  sale, 

Of  any  property  {except  such  stock  as  aforesaid), 

Where  the  amount  or  value  of  the  consideration  for  the  sale  does  not 

exceed    £5     .... 
Exceeds  £5  and  does  not  exceed  £10 


£    s.    d. 


10 

15 

15 

20 

20 

25 

25 

50 

50 

75 

75 

100 

100 

125 

125 

150 

150 

175 

175 

200 

200 

225 

225 

250 

250 

275 

275 

300 

300 

/» 

For   every  £50,  and    also  for  any  fractional  part  of  £50,  of  such 
amount  of  value        ....... 

And  see  sees.  54,  55,  56,  57,  58,  59,  GO,  and  01. 

H.  E. — vol.  XI. 


0 

0 

G 

0 

1 

0 

0 

1 

6 

0 

2 

0 

0 

2 

6 

0 

5 

0 

0 

7 

G 

0 

10 

0 

0 

12 

(i 

0 

15 

0 

0 

17 

G 

1 

0 

0 

1 

2 

6 

1 

5 

0 

1 

(J 

1 

10 

0 

0 

5 

0 

28 


434  STAMPS 

As  to  the  general  exemptions,  see  (17)  above.  As  to  special  exemptions, 
see  (18)  (ii.)  (iv.)  (viii.)  (xii.)  (xvi.)  (xxi.)  (xxiv.)  (xxx.)  (xxxii.)  (xxxix.)  (xli.) 
(Iv.)  (Ixv.). 

Conveyances  on  Sale. 

54.  For  the  purposes  of  this  Act  the  expression  "conveyance  on  sale  "  includes  every 
instrument,  and  every  decree  or  order  of  any  Court  or  of  any  Commissioners,  whereby 
any  i^roperty,  or  any  estate,  or  interest  in  any  property,  upon  the  sale  thereof,  is  trans- 
ferred to  or  vested  in  a  j^urchaser,  or  any  other  person  on  his  behalf  or  by  his  direction. 

Sec.  G  of  the  Finance  Act,  1898,  provides  that — 

For  the  removal  of  doubts  with  reference  to  the  effect  of  sees.  54  and  57  of  the 
Stamp  Act,  1891,  it  is  hereby  declared  that  the  definition  of  "conveyance  on  sale"  in 
the  said  sec.  54  includes  a  decree  or  order  for,  or  having  the  effect  of  an  order  for, 
foreclosure. 

Provided  that — 
(a)  The  ad  valorem  stamp  duty  upon  any  such  decree  or  order  shall  not  exceed  the 
duty  on  a  sum  equal  to  the  value  of  the  property  to  which  the  decree  or  order 
relates,  and  where  the  decree  or  order  states  that  value,  that  statement  shall  be 
conclusive  for  the  purpose  of  determining  the  amount  of  the  duty  ;  and 
(h)  Where  ad  valorem  stamp  duty  is  paid  upon  such  decree  or  order,  any  conveyance 
following  upon  sucli  decree  or  order  shall  be  exempt  from  the  ad  valorem 
stamp  duty. 

Sec.  6  is  held  to  apply  only  to  decrees  or  orders  having  the  effect  of  orders 
for  foreclosure  executed  after  the  commencement  of  the  Stamp  Act,  1891. 
But  this  limitation  does  not  receive  effect  in  the  case  of  conveyances 
effecting  foreclosure  executed  by  order  of  the  Court  (see  Huntington,  L.  E. 
[1896]  1  Q.  B.  422).  Decrees  under  57  &  58  Vict.  c.  44,  s.  8,  are  chargeable 
under  sec.  54  {Tod,  1898,  35  S.  L.  R.  671  ;  and  in  practice  decrees  of  expuy 
of  the  legal  are  similarly  treated.  Sec.  62  (see  below)  provides  for  the 
charge  upon  a  conveyance  by  decree  or  order  of  Court  on  any  occasion 
except  a  sale  or  a  mortgage.  Where  duty  is  chargeable  it  is  impressed 
upon  the  extract. 

Observe  that  chargeability  arises  if  the  property  be  either  "  transferred 
to  "  or  "  vested  in  a  purchaser  on  sale  "  (see  Mersey  Dock  and  Harlour  Board, 
L.  E.  [1897]  1  Q.  B.  786,  2  Q.  B.  316;  and  cf.  Chesterfield  Breivcry  Co., 
79  L.  T.  E.  559). 

The  transaction  must  be  a  sale.  A  transfer  of  property  from  one 
person  to  another  for  money,  or  stock,  or  marketable  security  (see  s.  55  (1) 
below),  is  a  sale  under  the  Act  {John  Foster  &  Son  Ltd.,  L.  E.  [1894] 
1  Q.  B.  516;  /.  t&  F.  Coats  Ltd.,  L.  E.  [1897]  1  Q.  B.  778;  Chesterfield 
Brewery  Co.,  ut  supra) ;  and  this  principle  has  been  applied  where  the 
members  of  a  partnership  agreed  to  convert  it  into  a  limited  liability 
company,  having  the  same  capital  as  the  partnership,  and  accepted  shares 
in  proportion  to  their  lioldings  in  the  partnership  {John  Wilson  &  Son 
Ltd.,  1895,  23  E.  18 ;  cf.  John  Foster  &  Son  Ltd.,  iit  supra ;  Great  Western 
Bailway  Co.,  L.  E.  [1894]  1  Q.  B.  507;  Furness  Eaihvay  Co.,  33  L.  J.  Ex. 
173).  In  tlie  case  of  the  reconstruction  of  a  company,  it  must,  it  is 
thought,  be  shown,  in  order  to  escape  ad  ralorcm  duty,  that  the  shares  in  the 
new  company  are  held  by  shareholders  of  the  old  company  in  the  same  pro- 
portion inter  se  as  in  the  old  company,  that  they  are  not  held  by  persons  other 
than  tlie  shareholders  in  the  old  company,  and  that  new  capital  has  not  been 
created.  It  is  not  sufficient  that  the  shareholders  have  the  option  to  take 
all  their  shares  in  the  proportion  above  mentioned;  in  order  to  have 
the  benefit  of  ,the  principle  in  the  case  of  an  option,  they  must  have 
exercised  it. 


STAMPS  •  435 

A  conveyance  by  a  father  to  his  son  in  consideration  of  natural  love  and 
affection,  and  of  a  covenant  by  the  son  to  increase  his  sisters'  portions  by 
£1500,  was  held  to  be  a  family  transaction,  and  not  a  sale  (Demi  d.  Manifold 
V.  Diamond,  4  B.  &  C.  243,  3  L.  J.  K.  B.  211  ;  see  also  Massy,  3  Bing.  N.  C. 
478  ;  with  these  cases,  cf.  Huntingdon,  L.  E.  [1896]  1  Q.  B.  422;  Todd,  1898, 
35  S.  L.  Ii.  G71).  It  is  often  difficult  to  say  to  which  class  a  case  belongs. 
But  it  may  bo  observed  that  in  practice,  when  property  is  conveyed  in 
exchange  for  money,  neither  inadequacy  of  consideration  nor  the  near 
relationship  of  the  parties  will  exclude  liability  to  ad  valorem  duty. 

A  partition  is  not  a  sale  {Madcod,  1885,  12  E.  1045). 

Where  a  contract  of  ground-annual,  or  a  feu-charter,  or,  it  is  thought, 
a  bond  of  annuity,  contains  a  clause  of  redemption,  tlie  discharge  in  respect 
of  redemption  is  chargealjle  not  as  a  conveyance  on  sale,  but  as  a  "  release 
or  renunciation  "  to  the  fixed  duty  of  10s.  {Belch,  1877,  4  E.  592  ;  Gihl, 
1880,  8  E.  120;  cf.  55  Geo.  iii.  c.  184,  s.  31).  But  ad  valorem  duty  is 
chargeable  where  the  rate  of  redemption  is  not  adhered  to,  or  where  the 
person  redeeming  is  not  a  party,  or  assignee  of  a  party,  to  the  original 
contract.  A  memorandum  of  allocation  of  feu-duty  in  the  form  prescribed 
by  the  Conveyancing  (Scotland)  Act,  1874,  Sched.  D.,  is  charged  as  an 
agreement.  If  it  be  in  the  form  of  a  separate  deed  it  is  chargeable  with 
deed  duty.  If  it  contain  a  provision  for  augmentation  of  feu-duty  it  is 
liable  to  ad  valorem  duty  upon  the  amount  thereof.  Where  a  vassal  sells 
part  of  his  feu,  and  there  being  no  allocation  in  the  original  charter  takes 
the  purchaser  bound  to  pay  to  the  superior  more  than  the  proportion  of  feu- 
duty  properly  applicaljle  to  the  part  sold,  ad  valorem  duty  is  not  charged 
upon  the  excess ;  for  a  new  feu-duty  is  not  created,  nor  is  the  cumulo 
amount  of  the  original  feu-duty  altered.  When  an  executor,  at  the  request 
of  a  legatee  other  than  a  residuary  legatee,  conveys  to  him  subjects  .  or 
stocks  not  specially  l^equeathed  to  him  to  account  of  his  interest,  ad 
valorem  duty  is  chargeable.  It  is  also  chargeable  where  tlie  executor 
conveys  the  whole  estate  to  residuary  legatees  on  their  undertaking  to 
put  him  in  funds  to  pay  the  special  legacies. 

The  ad  valorem  duty  is  also  chargeable  upon  the  ascertained  amount  of 
the  interest  of  an  outgoing  partner  who  has  been  bought  out  by  the 
remaining  partners  {Christie,  L.  E.  2  Ex.  D.  46  ;  Macleod,  1885, 12  E.  1045)  ; 
but  it  is  not  chargealjle  where  the  interest  of  a  partner  deceased  is  paid  out 
under  a  special  provision  in  the  contract  of  copartnery.  Again,  while  _a 
premium  paid  to  the  owner  of  a  business  by  an  incoming  partner  is 
chargeable,  his  contriljution  to  the  capital  is  not. 

An  order  for  payment  of  balance  of  price  addressed  by  the  seller  to  the 
buyer  and  delivered  to  the  payee,  is  in  England  regarded  as  an  assignation 
of  a  deljt,  and  is,  if  on  sale,  chargeable  as  a  conveyance  on  sale  {Adams,  12 
L.  E.  Ir.  1, 14  ih.  141 ;  and  see  Brice,  L.  E.  3  (^  11  L>.  569  ;  Buck,  L.  E.  3  C,).  B. 
D.  687;  Fisher,  27  W.  E.  301;  "Bill  of  Exchange"  above).  As  to  the 
views  of  tlie  Scots  Courts  in  regard  to  such  a  document,  see  Ritchie,  1 870, 
8  M.  815  ;  see  also  Ersk.  iii.  5.  2  ;  2  Bell,  Com.  16. 

The  conveyance  must  be  a  conveyance  of  "  property,  or  any  estate  or 
interest  in  property."  Property  is  that  which  belongs  to  a  person  exclusive 
of  others,  and  can  be  the  subject  of  bargain  and  sale  {Potter,  10  Ex.  147,  23 
L.  J.  Ex.  345,  per  IN.llock,  C'  B. ;  approved  in  Limmrr  Jsphaltc  Paring  Co., 
L.  E.  7  Ex.  211,  ])er  Martin,  B.).  It  has  been  held  to  include  a  share  ma 
colonial  patent,  and  the  sole  licence  to  use  that  patent  within  a  certain 
district  of  that  colony  {Smelting  Co.  of  Austrcdia,  L.  E.  [1896]  2  Q.  15.  179 ; 
[1897]  1  Q.  B.  175  ;  cf.  Limmcr  Asphcdte  Paving  Co.,  ut  siqmt;  Conservators  of 


436  STAMPS 

Fdvcr  Thames,  L.  E.  18  Q.  B.  D.  279.  It  is  thought  that  the  original  grant 
of  a  licence  is  chargeable  no  less  than  the  transfer  of  one  already  in  existence ; 
see  the  two  cases  last  cited,  and  Mersey  Dock  and  Harlour  Board,  L.  E. 
[1897]  1  Q.  B.  786,  2  Q.  B.  31G) ;  a  trade  mark  {Brooke  &  Co.,  L.  E.  [1896] 
2  Q.  B.  356),  and  the  goodwill  of  a  trade  {Potter,  id  supra  ;  West  London 
Syndicate,  L.  E.  [1898]  1  Q.  B.  226,  79  L.  T.  E.  289.  As  to  goodwill 
generally,  see  Trego,  L.  E.  [1896]  A.  C.  7 ;  Donald,  1893,  21  E.  246  ; 
Drummond,  1886,  13  E.  540.  As  to  the  goodwill  of  a  surgeon's  or  solicitor's 
business,  see  Bain,  1878,  5  E.  416  ;  Sjncer,  cited  in  Collyer,  Partnership, 
p.  82  ;  Arundcll,  52  L.  J.  Ch.  537  ;  James,  L.  E.  22  Q.  B.  D.  669,  23 
Q.  B.  D.  12  ;  and  Smalc,  3  De  G.  &  Sm.  706,  19  L.  J.  Ch.  157).  A  marine 
or  fire  policy,  if  no  loss  have  occurred,  is  not  property  {Blandy,  9  B.  &  C. 

396). 

The  consideration  chargeable  is  the  true  consideration  whether  it  be  that 
expressed  in  the  deed  or  not.  The  price  of  all  property  passing  by  the 
conveyance  is  chargeable,  and,  in  the  case  of  a  conveyance  of  land,  the 
value  of  everything  which  goes  with  the  land  sid)  silentio  (see  Eankine, 
LandowncrsUp),  p.  119  ;  Nisbet,  1880,  7  E.  575.  See  as  to  what  is  heritable, 
the  authorities  cited  supra,  s.v.  "  Agreement ")  forms  part  of  the  considera- 
tion. Goodwill,  in  so  far  as  it  is  heritable  in  character,  is  chargeable  on  the 
conveyance  by  which  the  subjects,  to  which  it  attaches,  pass  {ex  parte 
Punnctt,  L.  E.  16  Ch.  D.  226  ;  West  London  Syndicate,  ut  supra;  cf.  Philp's 
Exr.,  1894,  21  E.  482  ;  Trego,  ut  supra).  In  the  case  of  a  sale,  compulsory 
under  statute,  to  a  railway  company,  the  value  of  occupation  for  trade 
purposes  of  the  subjects  sold  forms  part  of  the  consideration  on  which 
the  duty  chargeable  on  the  conveyance  is  assessed  {Comm.  of  Inland 
Revenue  v.  Glasgow  and  S.-W.  Raihcay  Co.,  1887,  14  E.  (H.  L.)  33).  It  is 
thought  that  duty  is  not  chargeable  on  sums  representing  compensation, 
either  for  severance  or  in  respect  of  lands  injuriously  affected,  where  the 
sums  are  separately  fixed.  Where  the  consideration  cannot  be  ascertained, 
e.g.  in  the  case  of  a  royalty  ;)cr  ton  to  be  excavated, — deed  duty  is  charge- 
able. Where  pro  indiviso  proprietors  purchase  the  interest  of  one  of  their 
number,  and  all  of  them  are  parties  to  the  conveyance,  conveyance  on  sale 
duty  on  the  interest  sold  is  the  only  duty  chargeable.  Where  the  con- 
sideration is  a  feu-duty,  to  be  increased  if  the  ground  be  used  for  purposes 
other  than  those  for  which  it  was  primarily  conveyed,  the  charge  is  upon 
the  original  feu-duty  plus  the  additional  feu-duty  in  so  far  as  the  charge 
on  the  latter  does  not  exceed  10s.  In  assessing  the  duty  in  the  case  of  the 
sale  of  a  patent  to  a  company,  deduction  is  given  for  expenses  paid  by  the 
vendor,  and  properly  payable  by  the  vendee,  e.g.  premium  to  broker  for 
placing  shares,  or  initial  cost  of  flotation. 

55. — (1)  Where  the  consideration,  or  any  part  of  the  consideration,  for  a  conveyance 
on  sale  consists  of  any  stock  or  marketable  security,  the  conveyance  is  to  be  charged  with 
ad  valorem  duty  in  respect  of  the  value  of  the  stock  or  security. 

(2)  Where  the  consideration,  or  any  part  of  the  consideration,  for  the  conveyance  on 
sale  consists  of  any  security  not  being  a  marketable  security,  the  conveyance  is  to  be 
charged  with  ad  valorem  duty  in  respect  of  the  amount  due  on  the  day  of  the  date  thereof 
for  principal  and  interest  upon  the  security. 

In  regard  to  the  first  subsection, see  Jb7t?i  Foster  &  Sons  Ltd.,'L.  E.  [1894] 
1  Q.  B.  516  ;  John  Wilson  &  Son  Ltd.,  1895,  23  E.  18 ;  J.  &  P.  Coats,  L.  E. 
[1897]  1  Q.  B.  778.  As  to  the  method  of  computing  the  value,  see  (2) 
above. 

56. — (1)  Where  the  consideration,  or  any  part  of  the  consideration,  for  a  conveyance 
on   sale  consists  of  money  payable  periodically  for  a  definite  period  not  exceeding 


STAMPS  437 

twenty  years,  so  that  tlie  total  amount  to  be  paid  can  be  previously  ascertained,  the 
conveyance  is  to  be  charged  in  respect  of  that  consideration  with  ad  valorem  duty  on 
such  total  amount. 

(2)  Where  the  consideration,  or  any  part  of  the  consideration,  for  a  conveyance  on 
sale  consists  of  money  payable  periodically  for  a  definite  period  exceeding  twenty  years 
or  in  perpetuity,  or  for  any  indefinite  period  not  terminable  with  life,  the  conveyance  is 
to  be  charged  in  respect  of  that  consideration  with  ad  valorem  duty  on  the  total  amount 
which  will  or  may,  according  to  the  terms  of  sale,  be  payable  during  the  period  of 
twenty  years  next  after  the  day  of  the  date  of  the  instrument. 

(3)  Where  the  consideration,  or  any  part  of  the  consideration,  for  a  conveyance  on 
sale  consists  of  money  payable  periodically  during  any  life  or  lives,  the  conveyance  is  to 
be  charged  in  respect  of  that  consideration  with  ad  valorem  duty  on  the  amount  which 
will  or  may,  according  to  the  terms  of  sale,  be  payable  during  the  period  of  twelve  years 
next  after  the  day  of  the  date  of  the  instrument. 

(4)  Provided  that  no  conveyance  on  sale  chargeable  with  ad  valorem  duty  in  respect 
of  any  periodical  payments,  and  containing  also  provision  for  securing  the  payments,  is 
to  be'charged  with  any  duty  in  respect  of  such  provision,  and  no  separate  instrument 
made  in  that  case  for  securing  the  jmyments  is  to  be  charged  with  any  higher  duty  than 
ten  shillings. 

Where  the  consideration  is  a  joint  annuity,  and  an  annuity,  smaller  in 
amount  on  the  death  of  one  of  the  parties,  the  charge  will  be  upon  twelve 
times  the  joint  annuity. 

In  accordance  with  subsec.  (4),  where  an  instrument  is  chargeable  as  a 
conveyance  of  sale,  a  covenant  to  pay  the  balance  of  the  price  by  instalments 
does  not  attract  ad  valorem  bond  duty  in  addition  {Limmcr  Asphalic  Paving 
Co.,  L.  R  7  E.K.  211). 

57.  Where  any  property  is  conveyed  to  any  person  in  consideration,  wholly  or  in 
part,  of  any  debt  due  to  hiin,  or  subject  either  certainly  or  contingently  to  the  payment 
or  transfer  of  any  money  or  stock,  whether  being  or  constituting  a  charge  or  incumbrance 
upon  the  property  or  no^t,  the  debt,  money,  or  stock  is  to  be  deemed  the  whole  or  part, 
as  the  case  may  be,  of  the  consideration  in  respect  whereof  the  conveyance  is  chargeable 
with  ad  valorem  duty. 

Thus  where  a  heritable  property  is  conveyed  in  consideration  of  a  debt 
due  by  the  disponer  to  the  disponeo,  ad  valorem  duty  is  charged  on  the 
amount  of  the  debt ;  and  where  the  property  is  disponed  subject  to  a  bond, 
the  amount  of  the  bond  forms  part  of  the  consideration,  whether  the 
disponee  be  personally  bound  to  pay  the  bond  or  not  (Comm.  of  Inland 
Revenue  v.  Liquidators  of  Glasgoio  City  Bank,  1881,  8  Ft.  389;  cf.  Furness 
Railway  Co.,  33  L.  J.  Ex.  173;  Mortimer,  2  H.  &  C.  838;  33  L.  J.  Ex. 
263).  This  principle  was  applied  to  a  conveyance  of  security  subjects  to 
the  bondholder,  who  had  deducted  their  value  in  claiming  on  the  bankrupt 
borrower's  estate,  by  the  trustee,  who  renounced  his  reversionary  interest 
(Scottish  Equitable  Life  Assurance  Society,  1894,  22  li.  85;  cf.  Anderson, 
1878,  G  11.  50).  So  a  sum  lent  on  a  policy  prior  to  sale  thereof,  forms 
part  of  the  consideration,  save  where  the  Insurance  Company  is  the  lender. 
Where  a  pro  indiviso  share  only  of  the  property  subject  to  a  bond  is  sold, 
the  amount  of  the  bond  proportionate  to  the  share  sold  is  cliargeablc.  No 
further  duty  is  attracted  by  the  insertion  in  a  disposition  l)y  a  bondholder, 
selling  under  tlie  powers  in  the  bond,  of  an  assignation  of  the  bond  to  the 
purchaser.  Feu-duties,  ground-annuals,  and  annuities  do  not  fall  witbin  the 
provision  of  sec.  57  (see  Swayne,  Times,  IGth  Dec.  1898).  As  to  the  charge 
on  foreclosure  decrees,  decrees  of  declaration  of  exi)iry  of  the  legal,  and 
decrees  under  sec.  8  of  the  Heritable  Securities  (Scotland)  Act,  1894  (57  & 
58  Vict.  c.  44),  see  sec.  54,  supra,  and  sec.  02,  infra. 

58.— (1)  Wliere  property  contracted  to  be  sold  for  one  consideration  for  the  whole  is 
conveyed  to  the  purchaser  in  separate  parts  or  parcels  by  different  instruments,  the  con- 


438  STAMPS 

sideration  is  to  be  apportioned  in  such  manner  as  the  parties  think  fit,  so  that  a  distinct 
consideration  for  each  separate  part  or  parcel  is  set  forth  in  the  convejance  relating 
thereto,  and  such  conveyance  is  to  be  charged  with  ad  valorem  duty  in  respect  of  such 
distinct  consideration. 

(2)  Where  property  contracted  to  be  piirchased  for  one  consideration  for  the  whole 
by  two  or  more  persons  jointly,  or  by  any  person  for  himself  and  others,  or  Avholly  for 
others,  is  conveyed  in  parts  or  parcels  by  separate  instruments  to  the  persons  bj^  or  for 
whom  the  same  was  purchased  for  distinct  parts  of  the  consideration,  the  conveyance  of 
each  separate  part  or  parcel  is  to  be  charged  with  ad  valorem  duty  in  respect  of  the  dis- 
tinct part  of  the  consideration  therein  specified. 

(3)  Where  there  are  several  instruments  of  conveyance  for  completing  the  purchaser's 
title  to  property  sold,  the  principal  instrument  of  conveyance  only  is  to  Ije  charged  with 
ad  valorem  duty,  and  the  other  instruments  are  to  be  respectively  charged  with  such  other 
duty  as  they  may  be  liable  to,  but  the  last-mentioned  duty  shall  not  exceed  the  ad 
valorem  duty  payable  in  respect  of  the  principal  instrument. 

(4)  Where  a  person  having  contracted  for  the  purchase  of  any  property,  but  not 
having  obtained  a  conveyance  thereof,  contracts  to  sell  the  same  to  any  other  person,  and 
the  property  is  in  consequence  conveyed  immediately  to  the  sub-purchaser,  the  convey- 
ance is  to  be  charged  with  ad  valorem  duty  in  respect  of  the  consideration  moving  from 
the  sub-purchaser. 

(5)  Where  a  person  having  contracted  for  the  purchase  of  any  property  but  not  hav- 
ing obtained  a  conveyance  contracts  to  sell  the  whole,  or  any  part  or  parts  thereof,  to 
any  other  person  or  persons,  and  the  property  is  in  consequence  conveyed  by  the  original 
seller  to  different  persons  in  parts  or  parcels,  the  conveyance  of  each  part  or  parcel  is  to 
be  charged  with  ad  valorem  duty  in  respect  only  of  the  consideration  moving  from  the 
sub-purchaser  thereof,  without  regard  to  the  amount  or  value  of  the  original  consider- 
ation. 

(6)  Where  a  sub-purchaser  takes  an  acti;al  conveyance  of  the  interest  of  the  jierson 
immediately  selling  to  him,  which  is  chargeable  with  ad  valorem  duty  in  respect  of  the 
consideration  moving  from  him,  and  is  duly  stamped  accordingly,  any  conveyance  to  be 
afterwards  made  to  him  of  the  same  property  by  the  original  seller  shall  be  chargeable 
only  with  such  other  duty  as  it  may  be  liable  to,  but  the  last-mentioned  duty  shall  not 
exceed  the  ad  valorem  duty. 

As  to  the  words  "  principal  instrument  of  conveyance  "  in  siibsec.  (3),  see 
Doc  d.  Priest  v.  JFcston,  2  Q.  B.  249. 

59. — (1)  Any  contract  or  agreement  made  in  England  or  Ireland  under  seal,  or  under 
hand  only,  or  made  in  Scotland,  with  or  without  any  clause  of  registration,  for  the  sale 
of  any  equitable  estate  or  interest  in  any  property  whatsoever,  or  for  the  sale  of  any 
estate  or  interest  in  any  property  except  lands,  tenements,  hereditaments,  or  heritages, 
or  property  locally  situate  out  of  the  United  Kingdom,  or  goods,  wares  or  merchandise, 
or  stock,  or  marketable  securities,  or  any  ship  or  vessel,  or  part  interest,  share,  or  pro- 
perty of  or  in  any  ship  or  vessel,  shall  be  charged  with  the  same  ad  valorem^  duty,  to  be 
paid  by  the  purchaser,  as  if  it  were  an  actual  conveyance  on  sale  of  the  estate,  interest, 
or  property  contracted  or  agreed  to  be  sold. 

(2)  Where  the  purchaser  has  paid  the  said  ad  valorem  duty,  and,  before  having 
obtained  a  conveyance  or  transfer  of  the  property,  enters  into  a  contract  or  agreement 
for  the  sale  of  the  same,  the  contract  or  agreement  shall  be  charged,  if  the  consideration 
for  that  sale  is  in  excess  of  the  consideration  for  the  original  sale,  with  the  ad  valorem 
duty  jiayable  in  respect  of  such  excess  consideration,  and  in  any  other  case  with  the  fixed 
duty  of  ten  shillings  or  of  sixjience,  as  the  case  may  require. 

(3)  Where  duty  has  been  duly  paid  in  conformity  with  the  foregoing  provisions,  the 
conveyance  or  transfer  made  to  the  purcharer  or  sub-purchaser,  or  any  other  person  on 
his  behalf  or  by  his  direction,  shall  not  l)e  chargeable  with  any  duty,  and  the  Commis- 
sioners, upon  application,  either  shall  denote  the  payment  of  the  ad  valorem  duty  upon 
the  conveyance  or  transfer,  or  shall  transfer  the  ad  valorem  duty  thereto  upon  produc- 
tion of  the  contract  or  agreement,  or  contracts  or  agreements,  duly  stamped. 

(4)  Provided  that  where  any  such  contract  or  agreement  is  stamped  with  the  fixed 
duty  of  ten  shillings  or  of  sixpence,  as  the  case  may  require,  the  contract  or  agreement 
shall  be  regarded  as  duly  stamped  for  the  mere  purpose  of  proceedings  to  enforce  si)eciftc 
performance  or  recover  damages  for  the  lu'each  thereof. 

(5)  Provided  also  that  where  any  such  contract  or  agreement  is  stamped  with  the  said 
fixed  duty,  and  a  conveyance  or  transfer  made  in  conformity  with  the  contract  or  agree- 
ment is  presented  to  the  Commissioners  for  stamping  with  the  ad  valorem,  duty  charge- 
able thereon  within  the  period  of  six  months  after  the  first  execution  of  the  contract  or 


STAMPS  439, 

agreement,  or  -n-itliin  such  longer  period  as  tlie  Commissioners  may  tliink  reasonable  in 
the  circumstances  of  the  case,  the  conveyance  or  transfer  shall  be  stamped  accordingly, 
and  the  same,  and  the  said  contract  or  agreement,  shall  be  deemed  to  be  duly  stamped. 
Nothing  in  this  proviso  shall  alter  or  affect  the  provisions  as  to  the  stamping  of  a 
conveyance  or  transfer  after  the  execution  thereof. 

(6)  Provided  also,  that  the  ad  valorem  duty  paid  upon  any  such  contract  or  agree- 
ment shall  be  returned  liy  the  Commissioners  in  case  the  contract  or  agreement  be  after- 
wards rescinded  or  annulled,  or  for  any  other  reason  be  not  substantially  performed  or 
carried  into  effect,  so  as  to  operate  as  or  be  followed  by  a  conveyance  or  transfer. 

Heritable  subjects  (as  to  heritable  goodwill,  see  cases  cited  under  sec.  54), 
property  in  the  nature  of  land  having  a  local  situation  out  of  the  United 
Kingdom  {^qq  Smelting  Co.  of  Austral  la, 'L.V^..,{l^^(j'\  2  Q.  B.  179,  [1897] 
1  Q.  B.  175),  goods,  wares,  or  merchandise,  stocks,  or  marketable  securities, 
and  ships  are  not  chargeable  under  this  section  (see  Farmer  &  Co.,  79 
L.  T.  E.  32,  and  Chesterfield  Brewery  Co.,  79  L.  T.  R  559,  as  to  "  equitable 
estates  or  interests  ").  The  question  what  articles  do  and  what  do  not  fall 
under  the  words  "  goods,  wares,  or  merchandise  "  is  to  be  determined  by  the 
same  considerations  as  those  which  e  converso  determine  whether  articles 
are  or  are  not  fixtures  (see  Fixtukes).  Foreign  book-debts,  however,  and 
foreign  goodwill  other  than  that  which  is  inseparable  from  premises  situate 
abroad,  fall  within  the  charge ;  and  the  exemption  has  been  held  not  to 
embrace  a  share  of  a  colonial  patent,  and  of  a  licence  to  use  that  patent 
in  a  specified  district  of  that  colony  {Smelting  Co.  of  Australia,  id  siqjra ; 
Brooke  &  Co.,  L.  E.  [1896]  2  Q.  B.  356). 

Accordingly,  in  the  case  of  an  ao-reement  for  the  sale  of  a  goins  business- 
only  that  portion  of  the  price  is  dutiable  which  is  payable  in  respect  of 
assets  other  than  those  falling  under  the  exemption,  e.g.  goodwill,  so  far  as' 
not  heritable,  patents,  book-debts,  etc.  An  undertaking  by  the  purchaser 
to  pay,  in  addition  to  the  price,  the  liabilities  of  the  business  forms  part  of 
the  dutiable  consideration  (s.  57).  When  casli,  bills,  or  notes  form  part  of 
the  subject  sold,  they  are  not  regarded  as  chargeable.  "Where  heritable 
subjects,  heritable  machinery,  and  heritable  goodwill  are  among  the  assets 
agreed  to  be  sold,  duty  in  respect  of  their  cumulo  value  is  chargeable  upon 
the  disposition  of  the  sul)jects.  In  practice,  the  ad  valorem  duty  in  respect 
of  the  heritage  is,  if  desired,  impressed  upon  the  agreement  instead  of  the 
disposition.  In  that  case,  the  latter  instrument  is  liable  to  the  fixed  duty 
of  ten  shillings.  If  the  heritable  subjects  are  conveyed  subject  to  bonds, 
tlie  amount  of  tiio  bonds  is  regarded  as  part  of  the  consideration  (s.  57). 

When  an  outgoing  partner  agrees  to  sell  his  interest  in  the  firm  to  the 
remaining  partners,  that  interest  being  not  a  share  of  assets,  but  a  right  of 
accounting  as  against  the  partnership  ^^crsona,  is  charged  as  an  unum  quid. 

It  may  be  observed  that  a  company's  articles  of  association  arc  simply 
a  contract  between  the  sliareholders  inter  sc  (Blrij,  L.  E.  1  Ex.  20,  88) ;  and, 
accordingly,  where  one  company  has  purchased  the  Inisiness  of  anotlicr, 
the  articles  of  tlie  former  company,  to  whicli  the  latter  was  not  a  party, 
cannot  be  treated  for  duty  purposes  as  the  agreement  for  sale  between  the 
companies. 

GO.  Where  upon  the  sale  of  any  annuity  or  other  right  not  before  in  existence,  such 
annuity  or  other  right  is  not  created  l)y  actual  grant  or  conveyance,  but  is  only  secured 
by  bond,  warrant  of  attorney,  covenant,  contract,  or  (ttherwise,  the  bond  or  other 
instrument,  or  soiu.;  one  of  such  instruments,  if  tliere  be  more  tlian  (me,  is  to  be  cliarged 
with  the  same  duty  as  an  actual  grant  or  conveyance,  and  is  for  the  purp(>se3  of  this  Act 
to  be  deemed  an  instrument  of  couvcyance  on  .sjile. 

Sec  Mersey  Dock  and  Ilarhoar  Board,  [1897]  1  t^.  J5.  786,  2  (^  B.  316. 


440 


STAMPS 


61. — (1)  In  the  cases  hereinafter  specified,  the  principal  instrument  is  to  be  ascer- 
tained in  the  following  manner  : — 

(f)  Where  in  Scotland  there  is  a  disposition  or  assignation  executed  by  the  seller, 
and  any  other  instrument  is  executed  for  completing  the  title,  the  disposi- 
tion or  assignation  is  to  be  deemed  the  principal  instrument. 
(2)  In  any  other  case  the  parties  may  determine  for  themselves  which  of  several 
instruments  is  to  be  deemed  the  j)rincipal  instrument,  and  may  pay  the  ad  valorem  duty 
thereon  accordingly. 

Sec.  12  of  the  Finance  Act,  1895,  provides  that — 

Where  after  the  passing  of  this  Act,  by  virtue  of  any  Act,  whether  passed  before  or 
after  this  Act,  either — 

(a)  Any  property  is  vested  by  way  of  sale  in  any  person  ;  or 
(6)  Any  person  is  authorised  to  purchase  property. 

Such  person  shall,  within  three  montlis  after  the  passing  of  the  Act,  or  the  date  of 
vesting,  whichever  is  later,  or  after  the  completion  of  the  purchase,  as  the  case  may  be, 
produce  to  the  Commissioners  of  Inland  Revenue  a  copy  of  the  Act  printed  by  the 
Queen's  printer  of  Acts  of  Parliament,  or  some  instrument  relating  to  the  vesting  in  the 
first  case,  and  an  instrument  of  conveyance  of  the  property  in  the  other  case,  duly 
stamped  with  the  ad  valorem  dutj'  payable  upon  a  conveyance  on  sale  of  the  property  ; 
and  in  default  of  such  production,  the  duty  with  interest  at  the  rate  of  5  jter  cent, 
per  annum  from  the  passing  of  the  Act,  date  of  vesting,  or  completion  of  the  purchase, 
as  the  case  may  be,  shall  be  a  debt  to  Her  Majesty  from  such  person. 

In  cases  falling  under  (a),  duty  is  taken  on  the  whole  property,  heritable 
and  moveable. 

See  also  s.v.  "  Exchange  or  Excambion." 

Conveyance  or  Transfer  by  way  of  security  of  any  property  (except  such 
stock  as  aforesaid),  or  of  any  security. 

See  Mortgage,  etc.,  and  Marketable  Security.  £  s. 

Conveyance  or  Transfer  of  any  kind  not  hereinbefore  described     .  .    0  10 

And  see  sec.  62. 


d. 
0 


Conveyances  on  any  Occasion  except  Sale  or  Mortgage. 

62.  Every  instrument,  and  every  decree  or  order  of  any  Court  or  of  any  commis- 
sioners, whereby  any  property  on  any  occasion,  except  a  sale  or  mortgage,  is  transferred 
to  or  vested  in  any  person,  is  to  be  charged  with  duty  as  a  conveyance  or  transfer  of 
property. 

Provided  that  a  conveyance  or  transfer  made  for  effectuating  the  appointment  of  a 
new  trustee  is  not  to  be  charged  with  any  higher  duty  than  ten  shillings. 

As  to  instruments  and  decrees  of  Court  which  operate  a  sale,  see  sec. 
54.  A  decree  which  is  effectual  as  a  mortgage,  e.g.  a  decree  of  adjudication 
in  security,  is  not  chargeable.  In  practice  a  decree  of  general  or  special 
service  is  not  charged. 

A  deed  of  gift,  whether  with  or  without  a  clause  of  registration,  is  liable 
to  the  fixed  duty  of  ten  shillings. 

Copy  or  Extract  (attested  or  in  any  manner  aiithenticated)  of  or  from — 

(1)  An  instrument  chargeable  with  any  duty. 

(2)  An  original  will,  testament,  or  codicil. 

(3)  The  probate  or  probate  copy  of  a  will  or  codicil. 

(4)  Any  letters  of  administration  or  any  confirmation  of  a  testament. 

(5)  Any  public  register  (except  any  register  of  births,  baptisms,  marriages, 

deaths,  or  burials). 

(6)  The  books,  rolls,  or  records  of  any  Court.  £   s.     d. 

In  the  case   of   an  instrument  chargeable   with   duty   not  1"'^'^^*'''"'^,^"'^^ 

...  I  -TT  °  -^  -^        as  such 

amounting  to  one  shilling        .  .  .  .  \  instrument. 

In  any  other  case  .  .  .  .  .  .  .010 

Exemptions. 
■  (1)  Copy  or  extract  of  or  from  any  law  proceeding. 


STAMPS  441 

(2)  Copy  or  extract  in  Scotland  of  or  from  the  commission  of  any  person 
as  a  delegate  or  representative  to  the  convention  of  royal  burghs 
or  the  general  assembly  or  any  presbytery  or  church  court. 

And  see  sec.  63. 

As  to  special  exemption,  see  (18)  (xx.). 

Attested  Copies  and  Extracts. 

G3.  An  attested  or  otherwise  authenticated  copy  or  extract  of  or  from — 

(1)  An  instrument  chargeable  with  any  duty  ; 

(2)  An  original  will,  testament,  or  codicil ; 

(3)  The  probate  or  probate  copy  of  a  will  or  codicil ; 

(4)  Letters  of  administration  or  a  confirmation  of  a  testament ; 

may  be  stamped  at  any  time  within  fourteen  days  after  the  date  of  the 
attestation  or  authentication  on  payment  of  the  duty  only. 

The  charge  is  limited  to  "  such  copies  as  are  evidence  |5cr  se  .  .  .  ;  the 
word  '  copy '  there  means  an  authenticated  copy,  receivable  as  evidence  in 
the  first  instance"  {Braijthwaitc,  10  M.  &  W.  494,  12  L.  J.  Ex.  38,  per 
Ld.  Abinger,  C.  B.).  Accordingly,  if  a  copy  notarially  executed  be  made 
evidence  by  statute,  it  will  be  chargeable.  It  will,  if  it  be  a  notarial  act,  be 
chargeable  under  that  heading  in  addition. 

Observe  that  where  a  decree  is  chargeable  under  sec.  54  or  sec.  62,  the 
duty  is  impressed  on  the  extract. 

Copy  or  Extract  {certified)  of  or  from  any  register  of  births,  bai)tisms,     £   s.     d. 
marriages,  deaths,  or  burials  .  .  .  .  .  .001 

Exemftions. 

(1)  Copy  or  extract  furnished   by  any  clergyman,  registrar,   or   other 

official  person  pursuant  to  and  for  the  purposes  of  any  Act,  or 
furnished  to  any  general  or  superintending  registrar  under  any 
general  regulation. 

(2)  Copy  or  extract  for  which  the  person  giving  the  same  is  not  entitled 

to  any  fee  or  reward. 
And  see  sec.  64. 

Certified  Copies  and  Extracts  from  Registers  of  Births,  etc. 

64.  The  duty  upon  a  certified  copy  or  extract  of  or  from  any  register  of  births, 
baptisms,  marriages,  deaths,  or  burials  is  to  be  paid  by  the  person  requiring  the  copy  or 
extract,  and  may  be  denoted  by  an  adhesive  stamp,  which  is  to  be  cancelled  by  the 
person  by  wIkjui  the  copy  or  extract  is  signed  before  he  delivers  the  same  out  of  his 
hands,  custody,  or  power. 

Copyhold  and  Customary  Estates —Instruments  relating  thereto. 

Cost  Book  Mines.    See  Transfer. 

Counterpart.    See  Duplicate. 

Covenant  for  securing  the  payment  or  rej)ayment  of  money,  or  the  transfer 
or  retransfer  of  stock. 
See  Mortgage,  etc. 

Covenant  in  relation  to  any  annuity  upon  the  original  creation  and  sale 
thereof. 

See  Conveyance  on  Sale,  and  sec.  60. 

Covenant  in  relation  to  any  annuity  {except  vpon  the  oriijinal  creation  and 
sale  thereof)  or  to  other  periodical  payments. 
See  Bond,  Covenant,  etc. 

Covenant.  Any  separate  deed  of  covenant  {not  heimj  an  iuMriiwoit  charge- 
able with  adValorem  duty  as  a  conveyance  on  sale  or  mortgage)  ma<le  on  tlie 
sale  or  mortgage  of  any  jtroperty,  and  relating  solely  to  the  conveyance 
or  enjoyment  of,  or  the  title  to',  the  i)ropei  ty  sold  or  mortgaged,  or  to 
the  production  of  the  muniments  of  title  relating  thereto,  or  to  all  or 
any  of  the  matters  aforesaid. 


0 

1 

0 

0 

2 

6 

0 

5 

0 

442  STAMPS 

£  s.    cl 

1  .  r     1  •  1  •  [  ''^  duty  equal 

AVhere  the  ad  valorem  duty  m  respect  of  tlie  consideration  or  mort-J  to  the  amount 

sage  money  does  not  exceed  ten  shillinea  .  .  .  |  °* ,  ^^°\  f"^ 

t'   o  ■'  °  V  valorem  duty. 

In  any  other  case     .  .  .  .  .  .  .  .     0  10     0 

Customary  Estates.     See  Copyhold. 

Debenture  for  securing  the  payment  or  repayment  of  money  or  the  transfer 
or  retransfer  of  stock. 

See  Mortgage,  etc.,  and  Marketable  Security. 
Debenture  or  Certificate  for  entitling  any  person  to  receive  any  allowance 
by  way  of  drawback  or  otherwise  payable  out  of  the  revenue  of  customs 
or  excise,  for  or  in  respect  of  any  goods,  wares,  or  merchandise  exported 
or  shipped  to  be  exported  from  the  United  Kingdom  to  any  part  beyond 
the  sea. 

Where  the  allowance  to  be  received  does  not  exceed  £10  < 

Exceeds  £10  and  does  not  exceed  £50    ..... 

Exceeds  £50         ........ 

Declaration  of  any  use  or  trust  of  or  concerning  any  property  by  any 
writing,  not  being  a  will,  or  an  instrument  chargeable  with  ad  valorem 
duty  as  a  settlement  .  .  •  .  .  .  .     0  10    0 

Declaration  (SaUitory).     See  Affidavit. 
Decreet  Arbitral.     See  Award. 

Deed  whereby  any  real  burden  is  declared  or  created  on  lands  or  heritable 
subjects  in  Scotland. 

See  Mortgage,  etc.,  and  sec.  86. 
Deed  containing  an  obligation  to  infeft  any  person  in  heritable  subjects  in 
Scotland,  under  a  clause  of  reversion,  as  a  security  for  money. 
See  Mortgage,  etc.,  and  sec.  86. 
Deed  containing  an  ol)ligation  to  infeft  or  seize  in  an  annuity  to  be  uplifted 
out  of  heritable  subjects  in  Scotland. 
See  Bond,  Covenant,  etc. 
Deed  of  any  kind  whatsoever,  not  described  in  this  schedule  .  .  .      0  10    0 

As  to  general  exemptions,  see  (17) ;  as  to  special  exemptions,  see  (18) 
(ii.)  (xviii.)  (xli.)  (xlvii.)  (liii.)  (Iv.)  (Ixv.)  (Ixix.  (&))  (Ixx.). 

The  term  "deed"  is  not  defined  in  the  Act.  The  proposition  that  "in 
Scotland  .  .  .  any  writing  in  the  form  of  a  deed,  containing  narrative  and 
subsumption,  followed  by  present  act  and  deed,  and  clause  of  registration, 
will  be  liable  to  deed  duty  "  (2  M.  Bell's  Conveyancing,  3rd  ed.,  205),  holds 
true  where  such  an  instrument  does  not  fall  wholly  under  a  specific  head  of 
charge.  Where  it  contains  provisions  of  which  some  are  chargeable  under 
a  specific  head,  or  specific  heads,  and  some  are  not,  deed  duty  will  be 
chargeable  in  respect  of  the  latter  in  addition  to  the  specific  duty  or  duties 
chargeable  in  respect  of  the  former.  Where  the  instrument  falls  under  a. 
specific  head, — e.g.  receipt, — the  fact  that  it  contains  a  clause  of  registration 
will  not,  it  is  thought.make  it  liable  to  the  fixed  duty  of  ten  shillings  (see  Flem- 
■^?^^,' 1859,  21 D.  982).  If  the  instrument  be  a  deed  in  all  respects,  save  that 
it  does  not  contain  a  clause  of  registration,  it  will  be  chargeable  as  a  deed 
if  it  is  to  enter  the  register,  or  if  sealed,  save  where  the  seal  is  that  of  a 
company. 

In  England  two  of  the  most  important  characteristics  of  a  deed  are 
sealing  and  delivery.  But  every  document  under  seal  is  not  a  deed  (see 
Morton,  L.  R.  2  C.  C.  R.  22,  and  cases  therein  cited).  Further,  instruments 
sealed  in  England  or  Ireland  under  the  seal  of  a  company  or  corporation 
are  liable  to  deed  duty. 

Defeasance.     Instrument  of  defeasance  of  any  conveyance,  transfer,  dis- 
position, assignation,  or  tack,  apparently  absolute,  but  intended  only  as 
a  security  for  money  or  stock. 
See  Mortgage,  etc.,  and  sec.  86. 

In  respect  of  marketable  securities  under  hand  only,  see  Agreement, 
and  sec.  23. 


STAMrS  443 

£   s.   d. 
Delivery  Order  .  .  <  .  .  •  .  .001 

And  see  sees.  G9,  70,  <aud  71. 

See  s.v.  "  Warrant  for  Goods."     See  also  Delivery  Order. 

69. — (1)  For  tlie  purposes  of  this  Act  the  expression  "  delivery  order "  means  any 
document  or  writing  entitling,  or  intended  to  entitle,  any  person  therein  named,  or  his 
assigns,  or  the  holder  thereof,  to  the  delivery  of  any  goods,  wares,  or  merchandise  of  the 
value  of  forty  shillings  or  upwards  lying  in  any  dock  or  port,  or  in  any  warehouse  in 
which  goods  are  stored  or  deposited  on  rent  or  hire,  or  upon  any  wharf,  such  document 
or  writing  being  signed  by  or  on  behalf  of  the  owner  of  such  goods,  wares,  or  merchandise, 
upon  the  sale  or  transfer  of  the  property  therein. 

(2)  A  delivery  order  is  to  be  deemed  to  have  been  given  upon  a  sale  of,  or  transfer  of 
the  property  in,  goods,  wares,  or  merchandise  of  the  value  of  forty  shillings  or  upwards, 
unless  the  contrary  is  expressly  stated  therein. 

(3)  Tlie  duty  upon  a  delivery  order  may  be  denoted  by  an  adhesive  stamp,  which  is 
to  be  cancelled  by  tlie  person  by' whom  the  instrument  is  made,  executed,  or  issued. 

70. — (1)  If  any  person — 

(a)  Untruly  states,  or  knowingly  allows  to  be  untruly  stated,  in  a  delivery 

order,  either  that  the  transaction  to  which  it  relates  is  not  a  sale  or  ti'ans- 

fer  of  property,  or  that  tlie  goods,  wares,  or  merchandise  to  which  it 

relates  are  not  of  the  value  of  forty  shillings  ;  or 

(//)  Makes,  signs,  or  issues  any  delivery  order  chargeable  with  duly,  but 

not  being  duly  stamped  ;  or 
(f)  Knowingly,  either  himself,  or  by  his  servant  or  any  other  person,  delivers, 
or  procures,  or  authorises  the  delivery  of,  any  goods,  wares,  or  mer- 
chandise mentioned  in  any  delivery  order  which  is  not  duly  stamped, 
or  which  contains  to  his  knowloflge  any  false  statement  with  reference 
either  to  the  nature  of  the  transaction,  or  the  value  of  the  goods,  wares, 
or  merchandise, 
he  shall  incur  a  fine  of  twenty  pounds. 

(2)  ]5ut  a  deli\-ery  order  is  not,  by  reason  of  the  same  lieing  unstamped,  to  be  deemed 
invalid  in  the  hands'of  the  i)erson  having  the  custody  of,  or  delivering  out,  the  goods, 
wares,  or  merchandise  therein  mentioned,  unless  such  person  is  pro\ed  to  have  been 
party  or  privy  to  some  fraud  on  the  revenue  in  relation  thereto. 

71.  The  duty  ujion  a  delivery  order  is,  in  the  al)sence  of  any  special  stipulation,  to 
be  paid  l)y  the  person  to  whom  the  order  is  given,  and  any  person  from  whom  a  deli\-ery 
order  chargeable  with  duty  is  reciuired  may  refuse  to  give  it,  unless  or  until  the  amount 
of  the  duty  is  paid  to  him. 

Deposit  of  title  deeds.     See  ^NIortoage,  etc.,  and  sec.  8G.  £    ■''•    (^■• 

Deputation  or  Appointment  of  a  gamekeeper  .  .  .  .      0  10    0 

Dispensation.    See  Faculty. 
Disposition  of  lieritable  property  in  Scotland   to  singular  successors  or 

purchasers. 
See  Conveyance  on  Sale. 
Disposition  of  lieritable  property  in  Scotland  to  a  i)urcliaser,  containing  a 

clause  declaring  all  or  any  part  of  the  purchase-money  a  real  burden 

upon,  or  allecting,  the  heritable  property  thereby  disponed,  or  any  [lart 

thereof. 
See  Conveyance  on  Sale,  ^Iortgage,  etc.,  and  sec.  8G. 
Disposition  in  Scotland,  containing  constitution  of  feu  or  ground  annual 

right.     See  C<jnveyanck  on  Sam;,  and  sec.  ML 
Disposition  in  security  in  Scotland.     Sec  Moutgagk,  etc. 
Disposition  of  any  wad.set,  heriUilde  bond,  etc.     See  Moutcjage,  etc. 
Disposition  in  Scotland  of  any  i)roperty  or  of  any  right  or  interest  therein 

not  dcKcrilic'l  in  thin  schedide         .  .  .  .  •  .0100 

Dock  Wauuant.    Sci-  Wakuant  for  Goods. 
Docket  made  on  passing  any  instrument  under  the  Great  Seal  of  tbe  United 

Kingdom      .  0     2     0 

Draft  fur  nioiiev.     Sec  Bill  of  Hxchange. 

Duplicate  or  Colntkupakt  of  any  instrument  chargeable  with  any  <l"ty- i''jl"\';;""','i!j'ima 
Where  such  duty  does  not  amount  to  Os.  .  .  .  \  insinnnint. 

In  any  oilier  case  <  .  .  .  •  •  ,050 

And  see  sec.  72. 


444  STAMPS 

Duplicates  and  Counterparts. 

72.  The  duplicate  or  counterpart  of  an  instrument  chargeable  with  duty  (except  the 
counterpart  of  an  instrument  chargeable  as  a  lease,  such  counterpart  not  being  executed 
by  or  on  behalf  of  any  lessor  or  grantor),  is  not  to  be  deemed  duly  stamped  unless  it  is 
stamped  as  an  original  instrument,  or  unless  it  appears  by  some  stamp  impressed  thereon 
that  the  full  and  proper  duty  has  been  paid  uj)on  the  original  instrument  of  which  it  is 
the  duplicate  or  counterpart. 

See  sec.  11,  cited  (6)  above. 

EiK  to  a  reversion.    See  Mortgage,  etc.,  and  sec.  86.  £    s.    d. 

Equitable  Mortgage.     See  Mortgage,  etc.,  and  sees.  23  and  86. 
Exchange  or  Excambion.     Instruments  effecting. 

In  the  case  specified  in  sec.  73,  see  that  section. 

In  any  other  case  .  .  .  .  .  .  .       0  10    0 

Exchange  and  Partition  or  Division. 

73.  Where  upon  the  exchange  of  any  real  or  heritable  property  for  any  other  real  or 
heritable  property,  or  upon  the  partition  or  division  of  any  real  or  heritable  property, 
any  consideration  exceeding  in  amount  or  value  one  hundred  pounds  is  paid  or  given, 
or  agreed  to  be  paid  or  given,  for  equality,  the  principal  or  only  instrument  whereby 
the  exchange  or  partition  or  division  is  effected  is  to  be  charged  with  the  same  ad  valorem 
duty  as  a  conveyance  on  sale  for  the  consideration,  and  with  that  duty  only  ;  and  where 
in  any  such  case  there  are  several  instruments  for  completing  the  title  of  either  party, 
the  principal  instrument  is  to  be  ascertained,  and  the  other  instruments  are  to  be  charged 
with  duty  in  the  manner  hereinbefore  provided  in  the  case  of  several  instruments  of 
conveyance. 

For  special  exemption,  see  (18)  (xviii.). 

As  to  the  final  clause  of  the  section,  see  sees.  58,  61. 

As  to  the  scope  of  the  section,  see  J.  &  P.  Coats,  [1897]  1  Q.  B. 
778. 

The  provisions  of  sec.  57  are  not  applicable  to  the  instruments  charged 
under  this  head. 

A  partition  is  not  a  sale  (see  Madcod,  1885,  12  E.  1045;  Henniker, 
1  E.  &  13.  54,  22  L.  J.  Q.  B.  94). 

£  s.  d. 
Exemplification  ot  Constat,  under  the  Great  Seal  of  the  United  Kingdom 
of  Great  Britain  and  Ireland  of  any  letters  patent  or  grant  made  or  to  be 
made  by  Her  Majesty  or  by  any  of  her  royal  predecessors  of  any  honour, 
dignity,  promotion,  franchise,  liberty,  or  privilege,  or  of  any  lands,  office, 
or  other  thing  whatsoever  .  .'  .  .  .'  .  .500 

Extract.    See  Copt  or  Extract. 

Factory,  in  the  nature  of  a  letter  or  power  of  attorney  in  Scotland. 
See  Letter  or  Power  of  Attorney. 

Faculty,  Licence,  Commission,  or  Dispensation  for  admitting  or  authoris- 
ing any  person  to  act  as  a  notary  public  : — 

In  England  .  .  .  .  .  ,  .  .     30    0    0 

In  Scotland  or  Ireland     .  .  .  .  .  .  .     20     0    0 

Feu  Contract  in  Scotland.     See  Conveyance  on  Sale,  and  sec.  56. 

Foreign  Security.     See  Marketable  Security,  and  sec.  82. 

Further  Charge  or  Further  Security.  See  Mortgage,  etc.,  and 
sec.  86. 

Grant  or  Letters  Patent  under  the  Great  Seal  or  wafer  Great  Seal  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  or  of  the  Great  Seal  of 
Ireland,  or  the  Seal  of  the  Duchy  or  County  Palatine  of  Lancaster,  or 
under  the  Seal  kept  and  used  in  Scotland  in  place  of  the  Great  Seal 
formerly  used  there  : 


STAMPS 


445 


(1)  Of  tlie  honour  or  dignity  of  a  duke  .... 

„  „  of  a  mar(|ui.s 

,,  „  of  an  earl .... 

„  „  of  a  viscount 

„  „  of  a  baron 

„  „  of  a  baronet 

(2)  Of  a  conge  d'clire  to  any  dean  and  chapter  for  the  election  of  an " 

arclibishop  or  bishop  ..... 

(3)  Of  the  Royal  Assent  to,  or  signification  of,  the  election  made  by 

any  dean  and  chapter,  or  of  the  nomination  and  presentation  by 
Her  Majesty,  in  default  of  sucli  election  of  any  person  to  be 
an  archbishop  or  bishop      ..... 

(4)  Of  or  for  the  restitution  of  the  temporalities  to  any  archbishop 

or  bishop     ....... 

(5)  Of  any  other  honour,  dignity,  or  promotion  whatsoever 

(6)  Of  any  franchise,  liberty,  or  privilege  to  any  person  or  Ijody 

politic  or  corporate  ..... 

And  see  sec.  74. 


£ 

s. 

d. 

350 

0 

0 

300 

0 

0 

250 

0 

0 

200 

0 

0 

150 

0 

0 

100 

0 

0 

^     30     0     0 


Grants  of  Honours  and  Dignities. 

74. — (1)  Where  two  or  more  honours  or  dignities  are  granted  by  the  same  letters 
patent  to  the  same  person,  such  letters  patent  are  to  be  charged  with  the  proper  duty  in 
respect  of  the  highest  in  point  of  rank  only. 

(2)  Where  any  honour  or  dignity  is  granted  to  any  person  in  remainder,  the  letters 
patent  are  to  be  charged  with  such  further  duty  in  respect  of  every  remainder  as  would 
l)e  payable  for  an  original  grant  of  the  same  honour  or  dignity. 


Grant  or  Warrant  of  Precedence  to  take  rank  among  nobility,  under  the 
sign  manual  of  Her  Majesty  ...... 

Grant  or  Licence  under  the  sign  manual  of  Her  Majesty  to  take  and  use  a 
surname  and  arms,  or  a  surname  only. 

In  compliance  with  the  injunctions  of  any  will  or  settlement . 
Upon  any  voluntary  application  .  .  . 

Grant  of  arms  or  armorial  ensigns  only,  under  the  sign  manual  of  Her 
Majesty,  or  by  any  of  the  Kings  of  Arms  of  England,  Scotland,  or 
Ireland         ...•••••• 

Grant  of  copyhold  or  customary  estates.     See  Conveyance  ;  Copyhold. 

Grant  of  the  custody  of  the  person  or  estate  of  a  lunatic 

Heritable  Bond.     See  Mortgage,  etc.,  and  sec.  86. 

Insurance.    See  Policy. 

Lease  or  Tack — 

(1)  For  any  definite  term  not  e.xceeding  a  year  : 

Of  any  dwelling-house  or  part  of  a  dwelling-house  at  a  rent  not 
exceeding  the  rate  of  £10  per  annum     .  .  .  . 

(2)  For  any  definite  term  less  than  a  year  : 

(a)  Of  any  furnished  dwelling-house  or  apartments  where  the  rent 
for  such  term  exceeds  £25  ..... 

(h)   Of  any   lands,   tenements,  or   heriUxble    subjects    except  or_ 
otherwise  than  as  aforesaid  ..... 


£    s.    d. 


100    0     0 


50 
10 


0 
0 


0 
0 


10     0     0 


2     0     0 


0     0     1 


0  2  f! 
The  s.aine  duly 
as  a  lease  for 
a  year  at 
the  rent  re- 
served for 
the  rlcfinito 
term. 


(3)  For  any  other  definite  term  or  for  any  indefinite  term  : 
Of  any  lands,  tenements,  or  heritable  subjects — 

Where  the  consideration,  or  any  part  of  the  consideralion,  moving 
either  to  the  lessor  or  to  any  other  person,  consi.sts  of  any 
money,  stock,  or  security  : 


In  rcsi)ect  of  such  consideration  .  .  •  . 

Where  the  consideration,  or  any  part  of  the  coasidciation,  is 
rent : 


'The  same  duty 
as  a  cotivfv- 
aiice  on  a 
Hale  for  the 
(tame  con- 
Hideration, 


ny 


440 


STAMPS 


In  respect  of  sucli  consideration  : 

If  tlie  rent,  wliether  reserved  as  a  yearly  rent  or  otlierwise,  is 
at  a  rate  or  average  rate  : 


Not  exceeding  £5  yjer  annum 
Exceeding  £5  and  not  exceeding  £10 


5) 
?> 
JJ 

5) 
)) 
JJ 


10 
15 

20 
25 
50 
75 
100 


1) 


Jl 
)) 

J) 


15 

20 
25 
50 
75 
100 


For  every  full  sum  of  £50,  and  also 
for  any  fractional  part  of  £50 
thereof         .... 


If  the  term 
does  not  ex- 
ceed 35  years, 
or  is  indefinite. 

£ 

s.     d. 

0 

0     6 

0 

1     0 

0 

1     6 

0 

2     0 

0 

2     6 

0 

5     0 

0 

7     6 

0 

10     0 

0 

5     0 

If  the  term 
exceeds 
35  years,  but 
does  not  ex- 
ceed 100  years. 

£ 

s.    d. 

0 

3     0 

0 

G     0 

0 

9     0 

0 

12     0 

0 

15     0 

1 

10     0 

2 

5     0 

3 

0     0 

1 

10     0 

If  the  term 

exceeds 

100  years. 


£    s.  d. 

0     6  0 

0  12  0 

0  18  0 
14  0 

1  10  0 

3  0  0 

4  10  0 
6     0  0 


3     0     0 


(4)  Of  any  otlier  kind  whatsoever  not  hereinbefore  described 
And  see  sees.  75,  76,  77,  and  78. 


0  10    0 


As  to  general  exemptions,  see  (17).  As  to  special  exemptions,  see  (18) 
(viii.)  (xviii.)  (xli.). 

A  lease  of  which  the  consideration  is  a  grassimi,  or  the  release  of  a  debt 
{Gingell,  4  Ex.  720,  19  L.  J.  Ex.  129),  is  charged  with  the  same  duty  as  a 
conveyance  on  sale.  Observe  that  a  lease  from  week  to  week  or  from 
month  to  month  is  chargeable  as  a  lease  for  an  indefinite  term.  A  lease 
"  of  any  other  kind  whatsoever  "  applies  only  to  leases  of  lands,  tenements, 
or  heritable  subjects. 

A  lease  is  sufficiently  stamped  with  the  ad  valorem  lease  duty,  although 
it  contains  an  option  to  purchase  the  property  let  ( Worthington,  5  C.  B. 
G35,  17  L.  J.  C.  P.  117),  or  a  cautionary  obligation  for  the  rent  {Price, 
2  B.  &  Ad.  218);  but  it  is  otherwise  where  the  lease  contains  an  option 
to  purchase  subjects  other  than  those  let  (Lovelock,  8  Q.  B.  371,  16  L.  J. 
Q.  B.  182),  or  an  agreement  for  the  sale  of  fixtures  (Corcler,  3  Taun.  382 ; 
Clayton,  5  B.  &  C.  41).  Where  the  consideration  is  a  fixed  rent  and  an  in- 
definite'royalty,  the  instrument  is  chargeable  with  ad  tcdorem  duty  and  ten 
shillings.  Where  tlie  tenant  undertakes  as  part  of  his  rent  to  pay  burdens 
falling  properly  upon  the  landlord,  or  to  pay  interest  upon  the  landlord's 
plant,  or  an  annual  sum  for  the  depreciation  of  heritable  machinery,  such 
undertaking  forms  part  of  the  dutiable  consideration.  If,  in  the  last  case, 
the  machinery  be  moveable,  and  there  be  an  obligation  to  pay  an  annual 
sum  during  the  currency  of  the  lease,  that  obligation  may  be  liable  under 
the  head  "  Bond,  Covenant,"  etc.  A  lease  of  a  house  and  furniture  at  a 
cumido  rent  is  chargeable  with  ad  valorem  lease  duty  upon  the  amount  of 
the  rent.  But  where  the  rent  is  apportioned  in  the  instrument  between 
the  house  and  the  furniture,  in  so  far  as  it  effeirs  to  the  furniture,  it  is  not 
regarded  as  liable  to  lease  duty.  It  may,  however,  be  regarded  as  falling 
under  the  head  "Bond,  Covenant,"  etc.,  if  the  instrument  contain  an 
obligation  to  pay.  An  undertaking  by  the  tenant  to  pay  direct  to_  the 
insuring  company  the  premiums  in  respect  of  the  insurances  on  the  subjects 
let,  is  not  regarded  in  practice  as  forming  part  of  the  dutiable  consideration. 


STAMPS  447 

Duty  is  chargeable  on  the  amount  of  a  rent  which,  although  not  stated, 
is  ascertainable  {Parry,  5  A.  &  E.  551). 

Where  a  landlord,  in  one  instrument,  lets  several  subjects  to  different 
tenants  at  separate  rates,  ad  valorem  duty  is  chargeable  upon  each  of  the 
rents  (cf.  Doc  d.  Copley  v.  Day,  13  East,  241,  with  Boasc,  3  B.  &  B.  185 ; 
Blount,  1  Bing.  N.  C.  408). 

Where  the  rent  is  the  value  of  a  specific  quantity  of  grain  according  to 
liars'  prices,  the  practice  is  to  charge  on  an  average  of  the  last  seven  years 
(see  s.  76  below). 

A  minute  of  extension  of  lease  is  chargeable  as  a  new  lease,  unless  the 
original  lease  contam  an  option  to  extend,  and  the  period  of  lease,  and 
extension  does  not  exceed  the  period  covered  by  the  original  duty. 

Leases. 

75. — (1)  An  agreement  for  a  lease  or  tack,  or  with  respect  to  the  lettmg  of  any  Lands, 
tenements,  or  heritable  subjects  for  any  term  not  exceeding  tliirty-five  years,  or  for  any 
indefinite  term,  is  to  be  charged  with  the  same  duty  as  if  it  were  an  actual  lease  or  tack 
made  for  the  term  and  consicleration  mentioned  in  the  agreement. 

(2)  A  lease  or  tack  made  subsequently  to,  and  in  conformity  with,  such  an  agreement 
duly  stami^ed  is  to  be  charged  with  the  duty  of  sixpence  only. 

An  agreement  for  a  lease  made  for  a  fixed  consideration  and  a  further 
valuable  consideration,  uncertain  in  amount,  is  chargeable  with  ad  valorem 
lease  duty  and  ten  shillings. 

76. — (1)  Where  the  consideration,  or  any  jiart  of  the  consideration,  for  which  a  lease 
or  tack  is  granted  or  agreed  to  be  granted,  consists  of  any  jjroduce  or  other  goods,  the 
value  of  the  produce  or  goods  is  to  be  deemed  a  consideration  in  respect  of  which  the 
lease  or  tack  or  agreement  is  chargeable  with  ad  valorem  duty. 

(2)  Where  it  is  stipulated  that  the  value  of  the  produce  or  goods  is  to  amount  at 
least  to,  or  is  not  to  exceed,  a  given  sum,  or  where  the  lessee  is  specially  charged  with,  or 
Las  the  option  of  paying  after  any  permanent  rate  of  conversion,  the  value  of  the  pro- 
duce or  goods  is,  for  the  purpose  of  assessing  the  ad  valorem  duty,  to  be  estimated  at  the 
given  sum,  or  according  to  the  permanent  rate. 

(3)  A  lease  or  tack  or  agreement  for  a  lease  or  tack  made  either  wholly  or  partially 
for  any  such  consideration,  if  it  contains  a  statement  of  the  value  thereof,  and  is 
stamped  in  accordance  with  the  statement,  is,  so  far  as  regards  the  subject-matter  of  the 
statement,  to  be  deemed  duly  stamped,  unless  or  until  it  is  otherwise  shown  that  the 
statement  is  incorrect,  and  that  the  lease  or  tack  or  agreement  is  in  fact  not  duly 
stamped. 

The  case  of  grain  rents  converted  according  to  fiars'  prices  has  already 
been  noted. 

77. — (1)  A  lease  or  tack,  or  agreement  for  a  lease  or  tack,  or  with  respect  to  any 
letting,  is  not  to  be  charged  with  any  duty  in  respect  of  any  penal  rent,  or  increased 
rent  in  the  nature  of  a  penal  rent,  thereby  reserved  or  agreed  to  l)e  reserved  or  made 
payable,  or  l)y  reason  of  being  made  in  consideration  of  the  surrender  or  abandonment 
of  any  existing  lease,  tack,  or  agreement,  of  or  relating  to  the  same  .subject-matter. 

(2)  A  lease  made  for  any  consideration  in  respect  whereof  it  is  chargeable  with  ad 
valorem  duty,  and  in  further  consideration  either  of  a  covenant  by  the  lessee  to  make,  or 
of  his  having  previously  made,  any  substaiili.il  imjirovcuient  of  or  a<ldilion  to  the 
property  demised  to  him,  or  of  any  covenant  relating  to  the  matter  of  the  lease,  is  not  to 
Ije  charg(;d  with  any  duty  in  respect  of  such  further  consideration. 

(3)  Xo  lease  fur  a  life  or  lives  not  exceeding  three,  or  for  a  term  of  years  determinable 
Willi  a  life  or  lives  not  exceeding  three,  and  no  lease  for  a  term  alisolute  not  exceeding 
twenty-one  years,  granted  by  an  ecclesiastical  corporation  aggregate  or  sole,  is  to  be 
charged  with  any  higher  duty  than  thirty-five  .shillings. 

(4) 

(.5)  An  instrument  whereby  the  rent  reserved  by  any  other  instrument  chargeabli; 
with  duty  and  duly  stamped  as  a  lease  or  tack  is  increased  is  not  to  be  charged  with 
duty  otherwise  than  as  a  lease  or  tack  in  consideration  of  the  additional  rent  thereby 
made  payable. 


448 


STAMPS 


The  renunciation  of  the  old  lease,  when  contained  in  the  new  lease, 
does  not  form  part  of  the  dutiable  consideration. 

The  fifth  sub-section  does  not  apply  where  the  period  is  extended. 

78. — (1)  The  duty  upon  an  instrument  chargeable  with  dutj^  as  a  lease  or  tack  of — 
(n)  Any  dwelling-liouse,  or  part  of  a  dwelling-house,  for  a  definite  term, 
not  exceeding  a  year  at  a  rent  not  exceeding  the  rate  of  ten  pounds 
per  annum  ;  or 
(I)  Any  furnished  dwelling-house  or  apartments  for  any  definite  term  less 
than  a  year ; 
and  upon  the  duplicate  or  counterpart  of  any  such  instrument,  may  be  denoted  by  an 
adhesive  stamp,  which  is  to  be  cancelled  by  the  person  by  whom  the  instrument  is  first 
executed. 

(2)  Every  person  who  executes,  or  prepares  or  is  employed  in  preparing,  any  such 
instrument  (except  letters  or  correspondence)  Avhich  is  not,  at  or  before  the  execution 
thereof,  duly  stamped,  shall  incur  a  line  of  five  pounds. 

The  exception  in  favour  of  "  letters  or  correspondence  "  applies  only  to 
a  iond  fide  correspondence.     The  mere  form  of  a  letter  is  not  sufficient. 

Letter  of  Allotment  and  Letter  of  Renunciatiox,  or  any  other  document  having 
the  effect  of  a  letter  of  allotment  : 

(1)  Of  any  share  of  any  company  or  proposed  company  .  \    £    s.    d. 

(2)  In  respect  of  any  loan  raised,  or  proposed  to  be  raised  by  any 

company  or  proposed  company,  or  by  any  municipal  body  or 
corporation  ...... 

(3)  Issued  or  delivered  in  the  United  Kingdom,  of  any  share  of  any  1-001 

foreign  or  colonial  company  or  proposed  company,  or  in  respect 
of  any  loan  raised  or  proposed  to  be  raised  by  or  on  behalf 
of  any  foreign  or  colonial  State,  Government,  municipal  body, 
corporation,  or  company     .....  y 

And  Scrip  Certificate,  Scrip,  or  other  document : 

(1)  Entitling  any  person  to  become  the  proprietor  of  any  share  of  any^ 

company  or  proposed  company         .... 

(2)  Issued  or  delivered  in  the  United  Kingdom,  and  entitling  any 

person  to  become   the  proprietor  of  any  share  of  any  foreign 
or  colonial  companj'  or  proposed  company 

(3)  Denoting,  or  intended  to  denote,  the  right  of  any  person  as  a 

subscriber  in  respect  of  any  loan  raised  or  proposed  to  be  raised  1^     q    0     1 
by  any  company  or  proposed  company,  or  by  any  municipal  body 
or  corporation  ...... 

(4)  Issued  or  delivered  in  the  United  Kingdom,  and  denoting,   or 

intended  to  denote,  the  right  of  any  person  as  a  subscriber  in 
respect  of  any  loan  raised  or  proposed  to  be  raised  by  or  on  behalf 
of  any  foreign  or  colonial  State,  Government,  municipal  body, 
corporation,  or  company        ..... 
And  see  sec.  79. 

A  share  certificate,  i.e.  a  document  certifying  that  the  person  named  in 
it  is  proprietor,  is  not  dutiable. 

Letters  of  Allotment  or  Renunciation,  Scrip  Certificates,  and  Scrip. 

79. — (1)  Every  person  who  executes,  grants,  issues,  or  delivers  out  any  document 
chargeable  with  duty  as  a  letter  of  allotment,  letter  of  renunciation,  or  scrip  certificate, 
or  as  scrip,  before  the  same  is  duly  stamped,  shall  incur  a  fine  of  twenty  pounds. 

(2)  The  stamp  duty  of  one  penny  on  a  letter  of  renunciation  may  be  denoted  by  an 
adhesive  stamp  which  is  to  be  cancelled  by  the  person  by  whom  the  letter  of  renuncia- 
tion is  executed. 

Letter  of  Credit.     See  Bill  of  Exchange. 

Letter    or   Power    of   Attorney  and  Commission,  Factory,  Mandate,  or  other 
instrument  in  the  nature  thereof  : 

(1)  For  the  sole  purpose  of  appointing  or  authorising  a  proxy  to  vote 
at  any  one  meeting  at  which  votes  may  be  given  by  proxy, 
whether  the  number  of  persons  named  in  such  instrument  be      £    s.    d. 
one  or  more  .  .  .  .  .  .  .001 


STAMPS  449 

£    s.    d 

(2)  By  any   petty   officer,   seaman,  marine,  or  soldier   serving  as  a 

marine,  or   his   representatives,   for  receiving  prize  money  or 

'"'ages  .  .  .  .  .        '    .  .  .010 

(3)  For  the  receipt  of  the  dividends  or  interest  of  any  stock  : 

Where  made  for  the  receipt  of  one  payment  only        ,  .010 

In  any  other  case  .  .  .  .  .  .050 

(4)  For  the  receipt  of  any  sum  of  money,  or  any  bill  of  exchange  or 

promissory  note  for  any  sum  of  money,  not  exceeding  £20,  or 
any  periodical  payments  not  exceeding  the  annual  sum  of  £10 
(not  being  hereinbefore  charged)         .  .  .  .  .050 

(5)  For  the  sale,  transfer,  or  acceptance  of  any  of  the  Government  or 

Parliamentary  stocks  or  funds  : 

"Where  the  nominal  value  of  the  stocks  or  funds  does  not 

exceed  £100  [58  &  59  Vict.  c.  16,  s.  11]      .  .  .026 

In  any  other  case  .  .  .  .  .  .       0  10     0 

(6)  Of  any  kind  whatsoever  not  hereinbefore  described  .  .       0  10    0 

Exemptions. 

(1)  Letter  or  power  of  attorney  for  the  receipt  of  dividends  of  any 

definite  and  certain  share  of  the  Government  or  Parliamentary 
stocks  or  funds  producing  a  yearly  dividend  less  than  £3. 

(2)  Letter  or  power  of  attorney  or  proxy  filed  in  the  Probate  Division 

of  the  High  Court  of  Justice  in  England  or  Ireland,  or  in  any 
ecclesiastical  court. 

(3)  Order,  request,  or  direction  under  hand  only  from  the  proprietor 

of  any  stock  to  any  company  or  to  any  officer  of  any  company 
or  to  any  banker  to  pay  the  dividends  or  interest  arising  from 
the  stock  to  any  person  therein  named. 
And  see  sees.  80  and  81. 

As  to  special  exemption,  see  (18)  (ii.)  (v.)  (xxv.)  (xxxii.)  (xliv ) 
(Ixix.  (0)). 

Observe  iu  regard  to  the  first  head  of  charge,  that  an  instrument 
authorising  a  proxy  to  vote  at  a  particular  meeting,  and  any  adjournment 
thereof,  falls  under  this  charge.  An  instrument  authorising  a  proxy  to  vote 
at  more  than  one  meeting,  or  generally  at  all  meetings,  is  liable  to  the 
duty  of  ten  shillings  (see  In  re  English,  Scottish,  and  Australian  Chartrrcd 
Bank,  L.  E.  [1893]  3  Ch.  385). 

An  appointment  of  a  deputy  to  undertake  the  duties  of  the  appointer 
falls  under  the  sixth  head  of  charge,  unless  fees  or  emoluments  are 
attached  to  it.  In  that  case  the  appointment  is  exempt  (see  above,  s.v. 
"  Admission  "). 

Letters  or  Poicers  of  Attorney  and  Voting  Papers. 

80. — (1)  Every  letter  or  power  of  attorney  for  the  jiurpose  of  appointing  a  proxy  to 
vote  at  a  meeting,  and  every  voting  paper,  hereby  respectively  charged  with  the  duty  of 
one  penny,  is  to  specify  tlie  day  upon  which  the  meeting  at  whicli  it  is  intendi-d  to  be 
used  is  to  be  lield,  and  is  to  be  availal^le  only  at  tlie  meeting  so  si)ecitied,  and  any 
adjournment  thereof. 

(2)  The  duty  of  one  penny  may  be  denoted  by  an  adhesive  stamp,  whicli  is  to  be 
cancelled  by  the  person  by  whom  the  instrument  is  executed,  and  a  letter  or  power  of 
attorney  or  voting  pa]ior  charged  with  the  duty  of  one  jienny  is  not  to  be  stanij)ed  after 
the  execution  tliereof  l>y  any  jx-rso'i. 

(3)  Every  person  who  makes  or  executes,  or  votes,  or  attempts  to  vote,  under  or  by 
nicjin.s  of  any  such  letter  or  jwwer  of  attorney  or  voting  jtaner,  not  being  duly  staniiied, 
sliall  incur  a  fine  of  £50,  and  every  vote  given  or  tundiTcd  under  (he  authority  or  by 
means  of  the  letter  or  power  of  attorney  or  voting  jiajjer,  sliall  be  void. 

As  to  what  amounts  to  specification  of  the  day  of  niccting  sufVicient  to 
satisfy  the  requirement  of  subsection  (1),  see  IL  v.  M'Incrncy,  30  L.  \\.  \\\ 
49;  Ernest,  [IWrt]  1  Ch.  1. 

8.  E.— VOL.  XI.  29 


450  STAMPS 

81.  A  letter  or  power  of  attorney  for  the  sale,  transfer,  or  acceptance  of  any  of  the 
Government  or  Parliamentary  stocks  or  funds,  duly  stamped  for  that  jrarpose,  is  not  to 
be  charged  with  any  further  duty  by  reason  of  containing  an  authority  for  the  receipt  of 
the  dividends  on  the  same  stocks  or  funds. 

£    s.   d. 
Letters  of  Marque  and  Reprisal  .  .  .  .  .  .500 

Letters  Patent.     See  Grant. 

Letter  of  Reversion  in  Scotland.     See  Mortgage,  etc.,  and  sec.  86. 

Licence  for  Marriage  in  England  or  Ireland. 

Licence  under  the  seal  of  any  archbishop,  bishop,  chancellor,  or  other 
ordinary,  or  by  any  ecclesiastical  Court  in  England  or  Ireland,  or  by 
any  presbyter^'  or  other  ecclesiastical  power  in  Scotland  : 

(1)  To   hold  the  office  of  lecturer,  reader,   chaplain,   church  clerk, 

chaj)el  clerk,  parish  clerk,  or  sexton         .  .  .  .       0  10    0 

(2) 

(3) 

(4)  For  any  other  purpose  .  .  .  .  •  .200 

Exemptions. 

(1)  Licence  granted  to  any  spiritual  person  to  perform  divine  service 

in  any  building  ajaproved  l)y  the  archbishop  or  bishop  in  lieu 
of  a  church  or  chaj^el  whilst  the  same  is  under  repair  or  is 
rebuilding,  or  in  any  building  so  approved  for  the  convenience 
of  the  inhabitants  of  a  parish  resident  at  a  distance  from  a 
church  or  consecrated  chapel. 

(2)  Licence  to  hold  a  perpetual  curacy. 

(3)  Licence  to  a  stipendiary  curate,  wherein  the  annual  amount  of 

the  stipend  is  specified. 

(4)  Licence  for  the  purpose  of  authorising  or  enabling  any  person  to 

I^reach  or  exercise  any  other  spiiitual  function,  not  being  a 
licence  to  hold  the  otiice  of  lecturer,  reader,  or  chaplain,  and 
there  being  no  salary  or  emolument  for  or  attached  to  the 
exercise  of  the  function  for  which  such  licence  is  granted. 

(5)  Licence  by  any  ecclesiastical  authority  for  licensing  or  authorising 

any  matter  relating  to  a  consecrated  building  or  ground,  or 
anything  to  be  constructed,  set  up,  taken  down,  or  altered 
therein,  or  to  be  removed  tberefrom. 

Licence  to  act  as  a  Notary  Public.    See  Faculty. 

Licence  to  use  Surname  or  Arms.     See  Grant. 

Marketable  Security  and  Foreign  or  Colonial  Share  Certificate. 

(1)  Marketable  security  (a)  being  a  colonial  Government  security, 
or  (h)  being  a  security  not  transferable  by  delivery,  or  (c)  being 
a  secui'ity  transferable  by  delivery  and  bearing  date  or  signed 
before  or  on  the  sixth  day  of  August  one  thousand  eight 
hundred  and  eighty-five — 


For  or  in  respect  of  the  money  thereby  secured 


/The  same  ad 
valorem  duty 
according  to 
the  nature  of 
the  security 
as  upon  a 
mortgage. 


(2)  Transfer,    Assignment,   Disposition,    or  Assignation    of    a 

marketable  security  of  any  description — 

Upon  a  sale  thereof — see  conveyance  or  transfer  on  sale. 
Upon  a  mortgage  thereof — see  mortgage  of  stock  or  marketable 

security. 
In  any  other  case  than  a  sale  or  mortgage  .  .  .       0  10    0 

(3)  Marketable    security    (except   a   colonial    Government   security) 

being  a  security  transferable  by  delivery  and  bearing  date 
or  signed  or  offered  for  subscription  after  the  sixth  day  of 
August  one  thousand  eight  hundred  and  eighty-five — 

For  every  £10,  and  also  for  any  fractional  part  of  £10,  of  the 

money  thereby  secured  .  .  .  .  .010 

(4)  Marketable  security    (except    a    colonial    Government  security) 

being  such  security  as  last  aforesaid  given  in  substitution  for 


STAMrS  451 

£   s.   d. 

a  like   security  duly  stamped   iu  conformity   with   the  law  in 
force  at  the  time  when  it  became  subject  to  duty — 

For  every  £20,  and  also  for  any  fractional  part  of  £20,  of  the 

money  thereby  secured  .  .  .  .  .006 

The  words  "  or  offered  for  subscription  "  in  subhead  (1)  were  repealed 
by  61  &  62  Vict.  c.  46,  s.  7  (3). 

The  Act  56  &  57  Vict.  c.  7,  s.  4,  abolished  the  annual  duties  charged 
under  the  subheads  (5)  and  (6)  of  this  heading. 

Marketable  Securities  and  Foreign  and  Colonial  Share  Certificates. 

82. — (1)  Marketable    securities  for  the  purpose   of    the   charge   of   duty   thereon 
include — 

(rt)  A  marketable  security,  made  or  issued  by  or  on  behalf  of  any  company  or  body 
of  persons  corporate  or  unincorporate  formed  or  established  in  the  United 
Kingdom ;  and 

(b)  A  marketable  security  by  or  on  behalf  of  any  foreign  State  or  Government,  or 

foreign  or  coloniaf  municipal  body,  corporation,  or  company  (hereinafter 
called  a  foreign  security),  bearing  date  or  signed  after  the  third  day  of  June 
one  thousand  eight  hundred  and  sixty-two, 

(i.)  Which  is  made  or  issued  in  the  United  Kingdom,  or 
(ii.)  Which,  though  originally  issued  out  of  the  United  Kingdom,  has  been, 
after  the  si.xth  day  of  August  one  thousand  eight  hundred  and 
eighty-five,  or  is  offered  for  subscription,  and  given  or  delivered  to  a 
subscriber  in  the  United  Kingdoiii,  or 
(iii.)  Which,  the  interest  thereon  being  payable  in  the  United  Kingdom,  is 
assigned,  transferred,  or  in  any  manner  negotiated  in  the  United 
Kingdom  ;  and 

(c)  A  marketable  security  by  or  on  behalf  of  any  colonial  Government  which  if  the 

borrower  were  a  foreign  Government  would  be  a  foreign  security  (hereinafter 
called  a  colonial  Government  security). 

Subsec.  (2)  was  repealed  by  56  &  57  Vict.  c.  7,  s.  4. 

The  term  "marketable  security"  includes  "all  securities  of  such  a 
description  as  to  be  capable,  according  to  the  use  and  practice  of  stock 
markets,  of  being  there  sold  and  bought"  {Texas  Land  &  Cattle  Co.,  1888, 
16  E.  69,  per  Ld.  Shand;  app.  in  Brown,  Shvplcy,  &  Co.,  [1895] 
2  Q.  B.  598,  per  Ld.  Esher,  M.  E.).  As  to  the  meaning  of  the  words 
"made  or  issued,"  see  Grenfell,  L.  R  1  Ex.  D.  242;  Chicago  Railway 
Terminal  Elevator  Co.,  75  L.  T.  E.  157,  575 ;  Lord  Ilevehtoke,  [1898] 
1  Q.  B.  78,  79  L.  T.  E.  227).  As  to  the  meaning  of  the  words  "  oflered  for 
subscription,"  see  Chicafjo  Railway  Terminal  Elevator  Co.,  ut  supra.  As  to 
the  charge  where  a  debenture,  being  a  marketable  security,  contains  an 
obligation  on  the  issuer  to  redeem  at  a  sum  in  excess  of  the  amount 
advanced,  see  Roivell,  L.  E.  [1897]  2  Q.  B.  194;  Kniyhts  Beep  Ltd.,  79 
L.  T.  E.  704. 

Observe  that  bills,  repayable  not  later  than  twelve  months  from  their 
date  charged  on  local  rates,  etc.,  are  dutiable  as  promissory  notes,  and  not 
as  marketable  securities  (60  &  61  Vict.  c.  24,  s.  8). 

83.  Every  person  who  in  the  United  Kingdom  makes,  issues,  assigns,  transfers, 
negotiate.",  or  offers  for  suliscriptiftn  any  foreign  security  or  colonial  Government 
security  not  being  duly  .stamped,  shall  incur  a  fine  of  twenty  iM)\inds. 

84.  The  Comini3.sioners  may  at  any  time,  witliout  reference  to  the  date  thereof,  allow 
any  foreign  senirity  or  colonial  Government  security  to  Ije  stam])ed  witliout  tlie  payment 
of  any  ]»(7naltv,  ujion  being  .satisfied,  in  any  manner  that  they  may  think  proper,  that  it 
was  not  madeor  issued,  and  lias  not  been  transferred,  assigned,  or  negotiated  within  the 
United  Kingdom. 

Sec.  85  was  repealed  by  56  &  57  Vict,  c  7,  s.  4. 


452 


STAMPS 


Marriage  Licence.     See  Licence. 
Marriage  Settlement.     See  Settlement. 

Memorial  to  be  registered  pursuant  to  any  Act  for  the  time  being  m  force  relating  to 
the  public  registering  of  deeds  in  England  or  Ireland. 

Mortgage,  Bond,  Debenture,  Covenant  (except  a  marketable  security  otherwise 
specially  charged  with  duty),  and  Warrant  of  Attorney  to  confess  and  enter  up 
judgment. 

(1)  Being  the  only  or  principal  or  primary  security  (other  than  an  equitable 
mortgage)  for  the  payment  or  repayment  of  money-  ^'    "    '^ 

Not  exceeding  £10 

exceeding  £10  and  not  exceeding  £25    . 


25 
50 

50 
100 

100 

150 

150 

200 

200 

250 

250 

300 

300 

£  s.    d. 

0  0  3 

0  0  8 

0  1  3 

0  2  6 

0  3  9 

0  5  0 

0  6  3 

0  7  6 

For  every  £100,  and  also  for  every  fractional  part  of  £100,  of 
the  amount  secured     .  .  .  •  •    _         • 

(2)  Being   a   collateral,  or  auxiliary,  or  additional,  or  substituted 

security  (other  than  an  equitable  mortgage),  or  by  way  of  further 
assurance  for  the  above-mentioned  purpose  where  the  principal 
or  primary  security  is  duly  stamped  : 

For  every  £100,  and  also  for  any  fractional  part  of  £100,  of 
the  amount  secured  ..... 

(3)  Being  an  equitable  mortgage  : 

For  every   £100,  and  any  fractional  part  of   £100,  of  the 
amount  secured         ...... 

(4)  Transfer,  Assignment,  Disposition,  or  Assignation  of  any 

mortgage,   bond,    debenture,   or   covenant  (except  a  market- 
able  security),   or   of  any   money   or  stock  secured  by  any 
such  instrunient,  or  by  any  warrant  of  attorney  to  enter  up 
judgment,  or  by  any  judgment  : 
For  every  £100,  and  also  for  any  fractional  part  of  £100,  of 
the  amount  transferred,  assigned,  or  disponed,  exclusive 
of  interest  which  is  not  in  arrear   .... 

And  also  where  any  further  money  is  added  to  the  money 
alreadv  secured         ..... 


0     2     6 


0    0     6 


0     10 


0     0    6 

The  same  duty 
as  a  principal 
security  for 
such  further 
monej'. 


(5)  Reconveyance,  Eelease,  Discharge,  Surrender,  Eesur- 
RENDER,  Warrant  to  Vacate,  or  Renunciation  of  any 
such  security  as  aforesaid,  or  of  the  benefit  thereof,  or  of 
the  money  thereby  secured  : 

For  every  £100,  and  also  for  any  fractional  part  of  £100,  of 

the  tolal  amount  or  value  of  the  money  at  any  time  secured        0    0    6 
And  see  sees.  86,  87,  88,  and  89. 

As  to  the  general  exemptions,  see  (17);  and  observe  that,  while  a 
mortgage  of  which  a  ship  is  the  subject  is  exempt,  it  is  otherwise  where 
not  only  the  ships  of  a  shipping  company  but  its  uncalled  capital  is 
mortgaged.  As  to  the  special  exemptions,  see  (18)  (xli.)  (xlvii.)  (Iv.)  and 
sec.  89,  quoted  below. 

When  a  terminable  bond  or  debentiu'e  is  renewed  by  indorsement,  the 
indorsement  is  in  Scotland  charged  as  an  agreement. 

In  reference  to  subhead  (2),  it  may  be  observed  that  where  a  company 
on  issuing  debentures  conveys  property,  e.g.  heritable  subjects  and  uncalled 
capital,  to  trustees  to  hold  for  the  debenture-holders,  and  the  trustees 
execute  a  declaration  of  trust,  the  conveyance  and  declaration  are  regarded 
as  liable  to  deed  duty,  if  mortgage  duty  has  been  paid  on  the  debentures 
issued.  But  where  the  issue  is  of  debenture  stock,  mortgage  duty  is 
chargeable  on  the  declaration. 


STAMPS  453 

As  to  the  meaning  of  "substituted  security,"  see  Citii  of  London 
Brewery  Co.,  L.  R  [1898]  1  Q.  B.  408,  15  T.  L.  E.  49. 

Transfer  duty — subhead  (4)— is  charged  on  the  amount  transferred, 
and  interest  in  arrear  must  be  included  in  that  amount.  The  assignation 
of  a  bond  of  corroboration,  when  contained  in  an  assignation  of  the  prin- 
cipal bond,  attracts  no  fm-ther  duty. 

Observe  with  regard  to  subhead  (5),  that  the  ad  valorem  duty  is  payable 
only  once,  i.e.  upon  the  final  discharge,  each  partial  discharge  bein^  liable  to 
deed  duty  {M'Kimmie's  Trs.,  1895,  23  E.  232).  ° 

Observe  that  a  release  or  discharge  of  any  instrument  constituting  a 
mortgage  under  sec.  23  (see  below)  is  not  chargeable  with  any  ad  valorem 
duty,  but  with  sixpence  as  an  agreement,  or,  if  it  contain  a  clause  of 
registration,  with  ten  shillings  as  a  deed. 

When  several  bonds  are  assigned  or  reconveyed  to,  or  discharged  in 
favour  of,  one  person,  or  several  persons  jointly,  the  charge  is  on  the  cumulo 
amount ;  when  to  or  in  favour  of  several  persons  for  their  separate  interests, 
a  separate  duty  is  chargeable  in  respect  of  each  interest. 

As  to  the  relation  of  the  subheadings  to  the  principal  heading  "  Mort- 
gage," see  Old  Battersea  Building  Soc.,  L.  E.  [1898]  2  Q.  B.  294.  A  mortgage 
is  not  constituted  by  charging  by  will  a  legacy  upon  lands  (see  s.  SQ,  quoted 
below).  The  discharge  in  such  a  case  is  chargeable  not  under  subhead  (5), 
but  as  a  deed. 

Mortgages,  etc. 
86. — (1)  For  tlie  puq^oses  of  tliis  Act  the  expression  "  mortgage  "  means  a  security 
by  way  of  mortgage  fur  the  payment  of  any  definite  and  certain  sum  of  money  advanced 
or  lent  at  the  time,  or  previously  due  and  owing,  or  forborne  to  be  paid,  being  payable, 
or  for  the  repayment  of  money  to  be  thereafter  lent,  advanced,  or  paid,  or  which  may 
become  due  upon  an  account  current,  together  with  any  sum  already  advanced  or  due, 
or  without,  as  the  case  may  be  ; 
And  includes — 

(a)  Conditional   surrender  by  way  of  mortgage,  further   charge,   wadset,  and 
heritable  bond,  disposition,  assignation,  or  tack  in  security,  and  eik  to  a 
reversion  of  or  affecting  any  lands,  estate,  or  property,  real  or  pei-sonal, 
heritable  or  moveable,  whatsoever  :  and 
(6)  Any  deed  containing  an  obligation  to  infeft  any  person  in  an  annual  rent, 
or  in  lands  or  other  heritable  subjects  in  Scotlauil,  under  a  clause  of  rever- 
sion, but  without  any  personal  bond  or  oliligation  therein  contained  for 
payment  of  the  money  or  stock  intended  to  be  secured  :  and 
(c)  Any  conveyance  of  any  lands,  estate,  or  jiroperty  whatsoever  in  trust  to  be  sold 
or  otherwise  converted  into  money,  intended  only  as  a  security,  and  redeem- 
able before  the  sale  or  other  dispo.sal  thereof,  either  by  express  stipulation  or 
otherwise,  except  where  the  conveyance  is  made  for  the  benefit  of  creditors 
generally,  or  for  the  benefit  of  creditors  specified  who  accejit  the  provision 
made  for  payment  of  their  debts,  in  full  s;itisfactiun  thereof,  or  who  exceed 
five  in  number  :  and 
((/)  Any  defeasance,  letter  of  reversion,  'lack  bond,  declaration,  or  other  deed  or 
writing  for  defeating  or  making  re<ieemableor  explaining  or  qualifying  any 
conveyance,  transfer,  assignation,  or  tack  of  any  lands,  estate,  or  jiroperty 
whatsoever,  api)ari;ntly  ab.sulute,  Imt  intended  only  as  a  security  :  and 
(e)  Any  agreement  (other  than  an  agreement  diargeable  with  duty  ivs  an  ecjuitable 
mortgage),  contract,  or  l>und  accompanied  with  a  deposit  of  title  deeds  for 
making  a  mortgage,  wadset,  or  any  other  security  or  conveyance  as  aforesjiid 
of  any  lanrls,  estate,  or  property  conijiri.sed  in  the  title  deeds,  or  f(jr  pledging 
or  charging  the  .same  as  security  :  and 
(/)  Any  deed  whereby  a  real  Imrdcii  i.s  declared  or  created  on  lands  or  hcriUible 

.sul)jects  in  Scotland  :  and 
Of)  Any  deed  oixrating  as  a  mortgage  of  any  .stock  or  marketalile  .security. 
(2)  For  the  purpose  of  this  Act  the  t-xpressioii  "ei|uit;ible  mortgage  "  means  an  agree- 
ment or  memoraiinuni,  under  hand  only,  relating  to  the  deposit  of  any  title  deeds  or 
instruments  constituting  or  being  evidence  of  the  title  to  any  property  whatever  (other 
than  stock  or  marketable  security),  or  creating  a  charge  on  such  property. 


454  STAMPS 

Observe  that  subsections  (a)  to  (g)  are  not  to  be  taken  as  extending  the 
introductory  words  defining  the  meaning  of  mortgage  and  adding  cases  not 
included  in  them  {City  of  London  Brewery,  15  T.  L.  E.  49,  per  Eigby,  L.  J.). 

To  satisfy  the  definition  the  sum  secured  must  be  a  "  definite  and  certain 
sum  of  money  advanced  or  lent  at  the  time,"  etc.  Accordingly,  liabiKty  to 
duty  is  not  incurred  where  a  legacy  is  made  a  real  burden  by  testamentary 
writings.  The  words  "  definite  and  certain  "  express  the  idea  that  the  sum 
shall  be  of  ascertained  amount,  not  that  it  shall  be  certainly  payable  {Max- 
well, 1866,  4  M.  1121 ;  Mortimore,  2  H.  &  C.  838,  33  L.  J.  Ex.  263).  A  bond 
of  relief  in  favour  of  a  cautioner  is  chargeable  with  mortgage  duty  {Canning, 

I  E.  &  B.  164,  22  L.  J.  Q.  B.  87),  unless  it  be  contained  in  the  bond  in  which 
the  cautioner  was  obligant.  A  mere  guarantee  is  not  a  bond  of  relief ;  there 
must  be  an  obligation  to  pay. 

Where  the  debtor  in  a  bond  secured  over  lands  disposes  of  part  of  the 
subject,  and  the  security  is  restricted  to  the  portion  undisposed  of  by  a  deed 
of  restriction,  that  deed  is  liable  to  duty  at  the  rate  of  sixpence  joe?^  cent,  on 
the  amount  of  the  bond  up  to  a  maximum  of  ten  shillings.  But  where  the 
restriction  is  contained  in  the  conveyance,  that  instrument  is  not  chargeable 
in  respect  thereof,  in  addition  to  the  duty  to  which  it  is  itself  liable. 

Mortgage  duty  is  chargeable  only  on  the  "  definite  or  certain  sum " 
secured.  Accordingly,  it  is  not  chargeable  on  interest  {Barlcer,  7  M.  &  W. 
590),  bankers'  commission  {Frith,  14  M.  &  W.  39,  15  L.  J.  Ex.  133), 
incidental  expenses  {Doe  d.  Scruton  v.  Smith,  8  Bing.  146 :  Doe  d.  Jarman  v. 
Larder,  3  Bing.  N.  C.  92 ;  Doc  d.  Merceron  v.  ^Bragg',  8  A.  &  E.  620 ; 
Wroghton,  11  M.  &  W.  561 ;  13  L.  J.  Ex.  57 ;  Lauraiice,  7  Ex.  28,  21  L.  J. 
Ex.  49),  or  costs  {Lysaght,  10  Ir.  L.  E.  269).     See  Fiowcll,  [1897]  2  Q.  B.  194. 

The  assignation  in  security  of  a  policy  of  life  assurance  is  chargeable 
with  mortgage  duty  {Caldiuell,  5  Ex.  1). 

A  mortgage  stamp  is  not  required  where  there  has  been  merely  a  deposit 
of  goods,  or  of  some  document  relating  to  goods,  as  a  bill  of  lading  or  a 
dock-warrant  {Harris,  9  M.  &  W.  591, 11  L.  J.  Ex.  216  ;  see  also  Aiteniorough, 

II  Ex.  461,  25  L.  J.  Ex.  22). 

As  to  "debenture,"  see  British  India  Steam  Navigation  Co.,  L.  E.  7  Q.  B. 
D.  165  ;  Eowell,  [1897]  2  Q.  B.  194;  and  s.v.  "  Marketable  Securities."  See 
also  Debentures. 

With  regard  to  subheads  {d)  and  {g),  it  is  to  be  observed  that  sec.  23 
provides  that  certain  instruments  relating  to  mortgages  of  stock  are  to  be 
charged  as  agreements.     It  enacts  that — 

(1)  Every  instrument  under  hand  only  (not  being  a  promissory  note  or  bill  of  ex- 
change) given  upon  the  occasion  of  the  dejiosit  of  any  share  warrant  or  stock  certificate 
to  bearer,  or  foreign  or  colonial  share  certificate,  or  any  security  for  money  transferable 
by  delivery,  by  way  of  security  for  any  loan,  shall  be  deemed  to  be  an  agreement,  and 
shall  be  charged  with  duty  accordingly. 

(2)  Every  instrument  under  hand  only  (not  being  a  promissory  note  or  bill  of  ex- 
change) making  redeemable  or  qualifying  a  duly  stamped  transfer,  intended  as  a  security, 
of  any  registered  stock  or  marketable  security,  shall  be  deemed  to  be  an  agreement,  and 
shall  be  charged  with  duty  accordingly. 

(3)  A  release  or  discharge  of  any  such  instrument  shall  not  be  chargeable  with  any 
ad  valorem  duty. 

87. — (1)  A  security  for  the  transfer  or  retransfer  of  any  stock  is  to  be  charged  with 
the  same  duty  as  a  similar  security  for  a  sum  of  money  equal  in  amount  to  the  value  of 
the  stock  ;  and  a  transfer,  assignment,  disposition,  or  assignation  of  any  such  security,  and 
a  reconveyance,  release,  discharge,  surrender,  resurrender,  warrant  to  Vacate,  or  renuncia- 
tion of  any  such  security,  is  to  be  charged  with  the  same  duty  as  an  instrument  of  the 
same  description  relating  to  a  sum  of  money  equal  in  amount  to  the  value  of  the  stock. 

(2)  A  security  for  the  payment  of  any  rent-charge,  annuity,  or  periodical  payments, 
by  way  of  repayment,  or  in  satisfaction  or  discharge  of  any  loan,  advance,  or  payment 


STAMPS  455 

intended  to  be  so  repaid,  satisfied,  or  discharged,  is  to  be  charged  with  the  same  duty  as 
a  similar  security  for  the  payment  of  the  sum  of  money  so  lent,  advanced,  or  paid. 

(3)  A  transfer  of  a  duly  stamped  security,  and  a  security  by  way  of  further  charge 
for  money  or  stock,  added  to  money  or  stock  previously  secured'  by  a  cluly  stamped  in- 
strument, is  not  to  be  charged  with  any  duty  by  reason  of  its  containing  any  further  or 
additional  security  for  the  money  or  stock  transferred  or  previously  secured,  or  the 
interest  or  dividends  thereof,  or  any  neAv  covenant,  proviso,  power,  stipulation,  or  agree- 
ment in  relation  thereto,  or  any  further  assurance  of  the  property  comprised  in°  the 
transferred  or  previous  security. 

(4)  AVhere  any;copyhold  or  customary  lands  or  hereditaments  are  mortgaged  alone  by 
means  of  a  conditional  surrender  or  grant,  the  ad  valorem  duty  is  to  be  charged  on  the 
surrender  or  grant,  if  made  out  of  Court,  or  the  memorandum  thereof,  and  on  the  copy 
of  Court  roll  of  the  surrender  or  grant,  if  made  in  Court. 

(5)  Where. any  copyhold  or  customary  lands  or  hereditaments  are  mortgaged,  together 
with  other  property,  for  securing  the  same  money  or  the  same  stock,  the  ad  valorem  duty 
is  to  be  charged  on  the  instrument  relating  to  the  other  property,  and  the  surrender  or 
grant,  or  the  memorandum  thereof,  or  the  copy  of  Court  roll  of  the  surrender  or  grant, 
as  the  case  may  be,  is  not  to  be  charged  with  any  higher  duty  than  ten  shillings. 

(6)  An  instrument  chargeable  with  ad  valorem  duty  as  a  mortgage  is  not  to  be 
charged  with  any  further  duty  by  reason  of  the  equity  of  redemption  in  the  mortgaged 
property  being  thereby  conveyed  or  limited  in  any  other  manner  than  to  a  purchaser, 
or  in  trust  for,  or  according  to  the  direction  of,  a  purchaser. 

The  second  subsection  relates  to  cases  in  which  the  payment  of  the 
annuity  is  in  satisfaction  and  discharge  of  the  principal  of  the  loan,  and  in 
which  the  security  is  a  mortgage,  or  something  like  a  mortgage.  It  does  not 
apply  to  the  case  of  the  grant  of  an  annuity  in  consideration  of  a  sum 
paid  by  way  of  purchase  {Mersey  Docks  and  Harlour  Board,  ut  infra,  per 
Wills,  J.). 

In  the  case  of  Wale  (L.  E.  4  Ex.  D.  270),  the  mortgagor  who  desired  a 
further  advance,  the  mortgagee  who  desired  repayment,  and  a  third  person 
who  was  willing  to  make  the  additional  loan,  entered  into  a  deed  by  which 
the  subjects  securing  the  original  loan  were  conveyed  to  the  new  lender,  in 
security  of  an  advance  made  up  (1)  of  the  sum  to  be  repaid  to  tlie  original 
mortgagee,  and  (2)  of  the  sum  forming  tlie  new  loan.  It  was  held  that  the 
instrument  was  chargeable  as  a  transfer  quoad  (1),  and  as  a  new  mortgage 
quoad  (2).  Cf.  Mersey  Docks  and  Harbour  Board,  [1897]  1  Q.  B.  786, 
2  Q.  B.  316. 

88. — (1)  A  security  for  the  payment  or  repayment  of  money  to  be  lent,  advanced,  or 
paid,  or  which  may  become  due  upon  an  account  current,  either  Avith  or  without  money 
previously  due,  is  to  lie  charged,  where  the  total  amount  secured  or  to  be  ultimately 
recoverable  is  in  any  way  limited,  with  the  same  duty  as  a  security  for  the  amount  so 
limited. 

(2)  Where  such  total  amount  is  unlimited,  the  security  is  to  be  available  for  such  an 
amount  only  as  the  ad  valorem  duty  impressed  tliereon  extends  to  cover,  but  where  any 
advance  or  loan  is  made  in  excess  of  the  amount  covered  by  that  duty  the  .security  shall 
for  the  purpose  of  stamp  duty  be  deemed  to  be  a  new  and  separate  instrument,  bearing 
date  on  the  day  on  which  the  advance  or  loan  h  made. 

(3)  Provided  that  no  money  to  be  advanced  for  the  insurance  of  any  })roperty 
comprised  in  the  security  against  damage  by  lire,  or  for  keeping  u])  any  policy  of  life 
insurance  comprised  in  the  .security,  or  for  ell'ecting  in  lieu  thereof  any  new  policy,  or 
for  the  renewal  of  any  grant  or  lease  of  any  property  comprised  in  the  security  ujion  the 
droj)ping  of  any  life  wliereon  the  jiroperty  is  held,  shall  be  reckoned  as  forming  part  of 
the  amount  in  respect  whereof  the  security  is  chargeable  with  ad  rnlorem  duty. 

As  to  Rubscc.  (1),  sec  City  of  London  Brewery  Co.,  L.  W.  [IS'IS]  1  C,).  B. 
408,  15  T.  L.  K.  49. 

As  to  letters  of  satisfaction,  see  (7)  above. 

89.  The  exemption  from  stamji  fluty  conferreil  by  the  Act  of  the  session  Inld  in  the 
sixth  and  seventh  years  of  King  William  the  Fourth,  chapter  thirty-two,  for  the  regula- 
tion of  benefit  building  societies,  shall  not  extend    to  any  mortgage  n\ade  after  the 


456  STAMPS 

thirty-first  day  of  July  one  thousand  eight  hundred  and  sixty-eight,  except  a  mortgage 
by  a  member  of  a  benefit  building  society  for  securing  the  repayment  to  the  society  of 
money  not  exceeding  five  hundred  pounds. 

The  exemption  thus  limited  applies  only  to  building  societies  subsisting 
at  the  date  of  the  commencement,  but  not  registered  under  the  Buildin^ 
Societies  Act,  1874  (37  &  38  Vict.  c.  42,  ss.  7,  41),  as  to  which  see  above 
(18)  (v.).  Oljserve  that  a  reconveyance  'per  se  is  not  within  the  word 
"mortgage  "  {Old  Battersea  Building  Soc,  L.  E.  [1898]  2  Q.  B.  294). 

£   s.   d. 

Mortgage  of  Stock  or  Marketable  Security — 

Under    hand    only.      See    Agreement,     and    sec.    23    (quoted    s.v. 

"  Mortgage  ")• 
By  deed.     See  Mortgage,  and  sec.  86. 
Mutual  Disposition  or  Conveyance  in  Scotland.     See  Exchange  or  Excambion. 
Notarial  Act  of  any  kind  whatsoever  {exce2}t  a  iirotest  of  a  bill  of  exchayige  or 
promissory  note  or  any  notarial  instrument  to  he  expected  and  recorded  in  any 
Register  of  Sasines)    .  .  .  .  .  ,  .  .010 

And  see  Protest,  Seisin,  and  sec.  90. 

Notarial  Acts. 

90.  The  duty  upon  a  notarial  act,  and  upon  the  protest  by  a  notary  public  of  a  bill 
of  exchange  or  promissory  note,  may  be  denoted  by  an  adhesive  stamp,  which  is  to  be 
cancelled  by  the  notary. 

Notarial  execution  does  not  attract  the  charge. 

£    s.    d. 
Order  for  tlie  payment  of  money.     See  Bill  of  Exchange. 
Partition  or  Division — Instruments  efi'ecting. 

In  the  case  specified  in  sec.  73,  see  that  section. 

In  any  other  case     .  .  .  .  .  .  .  .       0  10    0 

Passport "  .  .  .  .  ,  .  ,  ,  !o06 

Policy  of  Sea  Insurance — 

(1)  Where  the  premium  or  consideration  does  not  exceed  the   rate   of 

2s.  6d.  per  centum  of  the  sum  insured  .  .  .  .001 

(2)  In  any  other  case — 

(a)  For  or  upon  any  voyage — 

In  respect  of  every  full  sum  of  £100,  and  also  any  fractional 

part  of  £100  thereby  insured    .  .  .  .  .003 

(b)  For  time — 

In  respect  of  every  full  sum  of  £100,  and  also  any  fractional 
l^art  of  £100  thereby  insured — 

AVhere  the  insurance  shall  be  made  for  any  time  not  ex- 
ceeding six  months  .  .  .'  .  .003 
Where  the  insurance  shall  he  made  for  any  time  exceeding 

six  months  and  not  exceeding  twelve  months       .  .006 

And  see  sees.  91,  92,  93,  94,  95,  96,  and  97. 

Policies  of  Insurance. 

91.  For  the  purposes  of  this  Act  the  expression  "  policy  of  insurance  "  includes  every 
writing  whereby  any  contract  of  insiu'ance  is  made  or  agreed  to  be  made,  or  is 
evidenced,  and  the  expression  "  insurance  "  includes  assurance. 

See  sec.  93  and  loriides,  L.  E.  6  Q.  B.  674,  7  Q.  B.  517. 

Policies  of  Sea  Insurance. 

^r" — (^)  -^'^F  *^®  purposes  of  this  Act  the  expression  "policy  of  sea  insurance  "  means 
any  insurance  (including  reinsurance)  made  upon  any  ship  or  vessel,  or  upon  the  machin- 
ery, tackle,  or  furniture  of  any  ship  or  vessel,  or  upon  any  goods,  merchandise,  or  pro- 
perty of  any  description  whatever  on  board  of  any  ship  or" vessel,  or  upon  the  freight  of, 
or  any  other  interest  which  may  be  lawfully  insured  in  or  relating  to,  any  ship  or  vessel, 
and  includes  any  insurance  of  goods,  merchandise,  or  property  for  any  transit  which 
includes  not  only  a  sea  risk,  but  also  any  other  risk  incidental  to  'the  transit  insured  from 
the  commencement  of  the  transit  to  the  ultimate  destination  covered  by  the  insurance. 

(2)  Where  any  person,  in  consideration  of  any  sum  of  money  paid  or  to  be  paid  for 


STAMrS  457 

additional  freight  or  otherwise,  agrees  to  take  upon  himself  any  risk  attending  goods, 
merchandise,  or  property  of  any  description  whatever  while  on  board  of  any  ship  or  vessel, 
or  engages  to  indemnify  the  owner  of  any  such  goods,  merchandise,  or  property  from  any 
risk,  loss,  or  damage,  such  agreement  or  engagement  shall  be  deemed  to  be  a  contract 
for  sea  insurance. 

It  has  been  held  that  a  time  iDolicy  embracing  119  vessels,  with  separate 
suras  insured  on  each,  was  properly  stamped,  the  duty  being  calculated 
upon  the  aggregate  amount  of  the  insurance  {Great  Britain  Steamship 
Premium  Association,  1891,  19  E.  109). 

93._(1)  A  contract  for  sea  insurance  (other  than  such  insurance  as  is  referred  to  in 
the  fifty-fifth  section  of  the  Jtlerchant  Shipping  Act  Amendment  Act,  1862)  shall  not  be 
valid  unless  the  same  is  expressed  in  a  policy  of  sea  insurance. 

(2)  No  policy  of  sea  insurance  made  for  time  shall  be  made  for  any  time  exceeding 

twelve  months.  r.        ^  ■     ^        •  ^ 

(3)  A  policv  of  sea  insurance  shall  not  be  valid  unless  it  specifies  the  particular  risk 
or  adventure,  the  names  of  the  subscribers  or  underwriters,  and  the  sum  or  sums  insured, 
and  is  made  for  a  period  not  exceeding  twelve  months. 

See  the  Home  Marine  Insurance  Co.,  L.  E.  [1898]  2  Q.  B.  351. 

Sec.  55  of  25  &  26  Vict.  c.  G3  refers  to  sec.  54  of  the  same  Act.  That 
Act  was  repealed  by  the  Merchant  Shipping  Act,  1894  (57  &  58  Yict. 
c.  60),  of  which  sees.  502,  503,  and  506  correspond  to  sees.  54  and  55  of 
the  repealed  Act. 

94.  Where  anv  sea  insurance  is  made  for  a  voyage  and  also  for  time,  or  to  extend  to 
or  cover  any  time  bevond  thirty  days  after  the  ship  shall  have  arrived  at  her  destination 
and  been  there  moored  at  anchor,  the  policy  is  to  be  charged  with  duty  as  a  pohcy  for  a 
voyage,  and  also  with  dutv  as  a  policy  for  time.  ...        •, 

95.— (1)  A  policy  of  sea  insurance  may  not  be  stamped  at  any  time  after  it  is  signed 
or  underwritten  by  "any  person,  except  in' the  two  cases  following ;  that  is  to  say, 

(a)  Any  policy  of  mutual  insurance  having  a  stamp  impressed  thereon  may,  it 
required,  be  stamped  with  an  additional  stamp  provided  that  at  the  tune 
when  the  additional  stamp  is  reiiuired  the  policy  has  not  been  signed  or 
underwritten  to  an  amount  exceeding  the  sum  or  sums  which  the  duty 
impressed  thereon  extends  to  cover  :  <■         1 1 

(h)  Any  policv  made  or  executed  out  of,  but  being  in  any  manner  entorceable 
within,  the  United  Kingdom,  mav  be  stamped  at  any  time  within  ten  days 
after  it  has  been  first  received  in  the   Cnited  Kingdom  on  payment  ot  tlie 

dutv  onlv.  £         1       •       • 

(2)  Provided  that  a  policv  of  sea  insurance  shall  for  the  inirpose  ot  production  in 
evidence  bean  in.-^trument  which  mav  legally  be  stamped  after  the  execution  thereot, 
and  the  penalty  payable  by  law  on  stamping  the  same  shall  be  the  sum  of  one  hundred 
pounds.  ,  .  ...  , 

90.  Nothing  in  this  Act  shall  prohibit  the  making  of  any  alteration  wliicli  may  Jaw- 
fully  be  made  in  the  terms  and  conditions  of  any  poluy  of  sea  insurance  after  the  policy 
has  been  underwritten  ;  i)rovided  tliut  the  alteration  be  made  before  notice  ot  the 
determination  of  the  ri.sk  originally  insured,  and  that  it  do  not  prolong  the  time  covered 
by  the  insurance  thcrcl.v  marie  bevond  the  i)criod  of  six  luoulhs  in  the  case  ot  a  policy 
made  for  a  less  perio.l  than  si. x"  months,  or  beyond  tlie  i)criod  of  twelve  months  in 
the  case  of  a  ].olicv  made  for  a  greater  period  than  six  months,  and  (hat  lli.-  articles 
insured  remain  the  i>roperty  of  the  same  perscm  or  person.^,  and  that  no  additional  or 
further  sum  l^e  insured  by  reason  or  means  of  the  alteration. 

97. — (1)  If  anv  ])erson—  .  . 

(a)  Becomes  "an  assurer  upon  any  sea  insurance,  or  enters  into  any  contract  lor  sea 

insurance,  or  directly  or  indiicctly  receives  or  contracts  or  takes  cndd,  in 
account  for  anv  ])rcmium  or  consideration  for  any  sea  insurance,  or  knowingly 
takes  uj.on  himself  anv  risk,  or  renders  himself  liable  to  pay,  or  pays,  any 
sum  of  monev  upon  anv  los.s,  i)eril,  or  contiugt^ncy  relative  to  any  .sea  insur- 
ance, unless  "the  insurance  is  exprc.Hsed  in  a  policy  of  sea  insurance  duly 

stamped,  or  ,  ,,•        i 

(b)  Makes  or  effects,  or  knowinglv  procures  to  be  made  or  ellecto  ,  anv  sea  insur- 

ance, or  directlv  or  indirectly  gives  or  pays,  or  renders  him.self  liable  to  pay, 
any  premium,"  <jr   consideration   for  any  sea  insurance,  or  enters  into  any 


£ 

s.    d. 

0 

0     1 

0 

0     3 

458  STAMPS 

contract  for  sea  insurance,  unless  tlie  insurance  is  expressed  in  a  policy  of  sea 
insurance  duly  stamped,  or 
(f)  Is  concerned  in  any  fraudulent  contrivance  or  device,  or  is  guilty  of  any  wilful 
act,  neglect,  or  omission,  with  intent  to  evade  the  duties  payable  on  policies  of 
sea  insurance,  or  whereby  the  duties  may  be  evaded, 
he  shall  for  every  such  offence  incur  a  fine  of  one  hundred  pounds. 

(2)  E\-ery  broker,  agent,  or  other  person  negotiating  or  transacting  any  sea  insurance 
contrary  to  the  true  intent  and  meaning  of  this  Act,  or  writing  any  policy  of  sea  insur- 
ance upon  material  not  duly  stamped,  shall  for  every  such  oti'ence  incur  a  fine  of  one 
hundred  pounds,  and  shall  not  have  any  legal  claim  to  any  charge  for  brokerage,  com- 
mission, or  agency,  or  for  any  money  expended  or  paid  by  him  with  reference  to  the 
insurance,  and  any  money  paid  to  him  in  respect  of  any  such  charge  shall  be  deemed  to 
l>e  pai.l  without  consideration,  and  shall  remain  the  property  of  his  employer. 

(3)  If  any  person  makes  or  issues,  or  causes  to  be  made  or  issued,  any  document 
purporting  to  be  a  copy  of  a  policy  of  sea  insurance,  and  there  is  not  at  the  time  of  the 
making  or  issue  in  existence  a  policy  duly  stamped  whereof  the  said  document  is  a  copy, 
he  sliall  for  such  off'ence  in  addition  to  any  other  fine  or  penalty  to  which  he  may  be 
liable  incur  a  fine  of  one  hundred  pounds. 

Policy  of  Life  Insurance — 

Where  the  sum  insured  does  not  exceed  £10 

Exceeds  £10  but  does  not  exceed  £25         .... 

Exceeds  £25  but  does  not  exceed  £500  : 

For  every  full  sum  of  £50,  and  also  for  any  fractional  part  of  £50,  of 

the  amount  insured      .  .  .  .  .  .  .006 

Exceeds  £500  but  does  not  exceed  £1000  : 

For  every  full  sum  of  £100,  and  also  for  any  fractional  part  of  £100, 

of  the  amount  insured  .  .  .  .  .  .010 

Exceeds  £1000  : 

For  every  full  sum  of  £1000,  and  also  for  any  fractional  part  of  £1000, 

of  the  amount  insured  .  .  .  .  .  .       0  10    0 

And  see  sees.  91,  98,  and  100. 

If  the  policy  was  originally  issued  in  the  United  Kingdom,  each  assig- 
nation, wherever  executed,  must  be  duly  stamped  (see  sec.  14  (4),  quoted  (8) 
above).     As  to  the  provision  of  sec.  118,  see  (12  (a))  above. 

The  reinsurance  between  insurance  companies  of  a  risk  under  a  duly 
stamped  life  policy  is  liable  to  10s.  or  6d.  according  as  it  does  or  does  not 
contain  a  clause  of  registration ;  ])ut  a  guarantee  by  one  insurance  company 
in  favour  of  another  such  company  in  respect  of  an  annuity  purchased  from 
the  latter  is  regarded  as  chargeable  under  the  head  of  "  Bond,  Covenant, 
etc." 

Policy  of  Insurance  against  Accident  and  Policy  of  insurance  for  any 
payment  agreed  to  be  made  during  the  sickness  of  any  person,  or  his 
incapacity  from  personal  injury,  or  l)y  way  of  indemnity  against  loss  or 
damage  of  or  to  any  property  .  ,  .  .  .  .001 

And  see" sees.  91,  98,  99,  and  100. 

As  to  special  exemptions,  see  (18)  (xxv.).  See  Lancashire  Ins.  Co. ; 
Vulcan  Boiler  &  General  Ins.  Co.,  79  L.  T.  K.  731,  wdiere  it  was  held  that  a 
contract  indemnifying  an  employer  against  claims  of  compensation  for  death 
or  injury  by  his  employees  was  not  chargeable  under  this  head. 

A  reinsurance  or  guarantee  between  insurance  companies  of  a  risk 
under  a  policy  duly  stamped  under  this  head  is  charged  with  the  duty  of 
Id.  It  has  been  held  that  a  policy  of  insurance  upon  a  mortgage,  guaran- 
teeing to  the  assured  payment  of  the  mortgage  debt  and  interest,  if,  from 
any  cause  whatever,  the  mortgagor  failed  to  pay,  was  chargeable  not  under 
this  head  but  under  that  of  agreement  {Mortgage  Insurance  Corporation, 
57  L.  J.  Q.  B.  179). 

Policies  of  Insurance  except  Policies  of  Sea  Insurance. 
98. — (1)  For  the  purposes   of  this  Act  the  expression   "policy  of  life  insurance" 
means  a  policy  of  insurance  upon  any  life  or  lives  or  upon  any  event  or  contingency 


STAMPS  459 

relating  to  or  depending  upon  any  life  or  lives  except  a  policy  of  insurance  against 
accident ;  and  the  expression  "policy  of  insurance  against  accident"  means  a  policy  of 
insurance  for  any  payment  agreed  to  be  made  upon  the  death,  of  any  person  only  from 
accident  or  violence  or  otherwise  than  from  a  natural  cause,  or  as  compensation  for  per- 
sonal injury,  and  includes  any  notice  or  advertisement  in  a  newspaper  or  other  publica- 
tion which  purports  to  insure  the  payment  of  money  upon  the  death  of  or  injury  to  the 
holder  or  bearer  of  the  new^spaper  or  publication  containing  the  notice  only  from  accident 
or  violence  or  otherwise  than  from  a  natural  cause. 

(2)  A  policy  of  insurance  against  accident  is  not  to  be  charged  with  any  further  duty 
than  one  penny  by  reason  of  the  same  extending  to  any  payment  to  be  made  during 
sickness  or  incapacity  from  personal  injury. 

Observe  the  provision  of  the  Finance  Act,  1895  (58  &  59  Vict.  c.  16), 
s.  13,  that 

"  a  policy  of  insurance  for  any  i)ayment  agreed  to  be  made  during  the  sickness  of  any 
person  or  his  incapacity  from  jjersonal  injury  "  within  the  meaning  of  the  Stamp  Act, 
1891,  includes  a  notice  or  advertisement  in  a  newspaper  or  other  publication  which 
purports  to  insure  such  payment. 

A  poKcy  upon  attainment  of  a  certain  age  is  chargeable  not  under  this 
head,  but  with  ten  shillings  or  sixpence,  according  as  it  does  or  does  not 
contain  a  clause  of  registration. 

99.  The  duty  of  one  penny  upon  a  policy  of  insurance  other  than  a  policy  of  sea 
insurance  or  life  insurance  may  be  denoted  by  an  adhesive  stamp,  which  is  to  be  can- 
celled by  the  person  by  whom  the  policy  is  first  executed. 

100.  Everv  person  who — 

(1) 'Receives,  or  takes  credit  for,  any  premium  or  consideration  for  any  insur- 
ance other  than  a  sea  insurance,  and  does  not,  within  one  month  after 
receiving,  or  taking  credit  for,  the  premium  or  consideration,  make  out 
and  execute  a  duly  stamped  policy  of  insurance  ;  or 
(2)  Makes,  executes,  or' delivers  out,  or  pays  or  allow-s  in  account,  or  agrees 
to  pay  or  allow  in  account,  any  money  upon  or  in  respect  of  any  policy 
other  than  a  policy  of  sea  insurance  which  is  not  duly  stamped ; 
shall  incur  a  fine  of  twenty  pounds. 
Precept  of  Clare  Constat  to  give  seisin  of  lands  or  other  heritable  suVtjects     £    s.    d 

in  Scotland n  ,a     ? 

Procuratiox,  Deed,  or  other  instrument  of      .  .  .  •  .       0  10     0 

Promissory  Note.    See  Bank  Note,  Bill  of  Exchange. 

Protest  of  anv  bill  of  exchange  or  promissory  note  :  ,„,  ,  . 

°  ^  (The  same  fluty 

Where  the  duty  on  the  bill  or  note  does  not  exceed  one  shilling 


In  any  other  case    ...••••• 
And  see  sec.  90. 
Proxy.    See  Letter  or  Power  of  Attorney. 
Receipt  given  for,  or  upon  the   payment  of,  money  amounting  to  £2  or 

upwards      ...•••••• 


J     as    the    bill 

I     or  note. 

.        0      10 


0     0      1 


Exemptions. 

(1)  Receipt  given  for  moncv  deposited  in  any  l>ank,  or   with  any  banker,  to  be 

accounted  for  and  expresscrl  to  be  received  of  the  person  to  whom  the  same  is 
to  be  accounted  for.  ,  .,i     <•        i 

(2)  Acknowledgiiient  bv  anv  banker  ..f  the  receipt  of  any  bill  of  exchange  or  pro- 

inis.sory  note  for  tlie  purpose  of  being  ])resented  for  acceptance  or  pavment. 

(3)  Receipt  given  for  or  upon  the  i)ayment  of  any  parliamentary  taxes  or  duties,  or  ot 

money  to  or  for  the  use  of  Iler  ^fajesty.  „         p  •  i  i 

(4)  Receipt  given  bv  an  oflicer  of  a  public  department  of  the  Slate  for  money  paid  by 

way  of  imprest  or  advance,  or  in  adjustment  of  an  account,  wliorc  he  derives  no 

personal  beiielit  therefrom.  ,       ,.  ^     c  .i  f 

(0)  Receipt  given  by  any  agent  for  money  imprested  to  him  on  account  ol  the  pay  ot 

tlie  armv.  ,  ,.  ,  .  i  *•     „ 

(6)  Reccii.t  given  by  any  oflicer,  seaman,  marine,  or  Foldier,  or  his  representatives, 

for  or  on  account  of  any  wages,  pay,  or  pension,  due  from  the  Admiralty  or  Army 

Pay  Ollice. 

(7)  Receipt  given  for  any  principal  money  or  interest  due  on  an  Exclieriuer  bill. 


4G0  STAMPS 

(8)  Receipt  written  upon  a  bill  of  excliange  or  promissory  note  duly  stamped,  or 
upon  a  bill  drawn  by  any  person  under  the  authority  of  the  Admiralty,  upon 
and  jiayable  by  the  Accountant-General  of  the  Navy. 

This  exemption  was  repealed,  as  from  1st  July  1895,  by  the  Finance 
Act,  1895  (58  &  59  Vict.  c.  16),  s.  9,  subject  to  the  proviso  that 

neither  the  name  of  a  banker  (whether  accompanied  by  words  of  receipt  or  not)  written 
in  the  ordinary  course  of  his  business  as  a  banker  upon  a  bill  of  exchange  or  promissory 
note  duly  stamped,  nor  the  name  of  the  jjayee  written  upon  a  draft  or  order,  if  payable 
to  order,  shall  constitute  a  receipt  chargeable  with  stamp  duty. 

(9)  Receipt  given  upon  any  bill  or  note  of  the  Bank  of  England  or  the  Bank  of 
Ireland. 

(10)  Receijat  given  for  the  consideration  money  for  the  purchase  of  any  share  in  any 

of  the  Government  or  Parliamentary  stocks  or  funds,  or  in  the  stocks  and  funds 
of  the  Secretary  of  State  in  Council  of  India,  or  of  the  Bank  of  England,  or  of 
the  Bank  of  Ireland,  or  for  any  dividend  paid  on  any  share  of  the  said  stocks 
or  funds  respectively. 

(11)  Receipt  indorsed  or  otherwise  written  upon  or  contained  in  any  instrument  liable 

to  stamp  duty  [see  Skrine,  2  Camp.  407],  and  duly  stamped,  acknowledging  the 
receijat  of  the  consideration  money  therein  expressed,  or  the  receipt  of  any 
princiisal  money,  interest,  or  annuity  thereby  secured  or  therein  mentioned. 

This  exemption  seems  not  to  extend  to  a  receipt  indorsed  on  an  insur- 
ance policy  for  the  sums  payable  thereunder,  such  sums  not  being  "  prin- 
cipal money."  It  includes  receipts  indorsed  for  the  payment  of  instalments 
(Orme,  4  Camp.  336). 

(12)  Receijjt  given  for  any  allowance  by  way  of  drawback  or  otherwise  upon  the 

exportation  of  any  goods  or  merchandise  from  the  United  Kingdom. 

(13)  Receipt  given  for  the  return  of  any  duty  of  customs  upon  a  certificate  of  over 

entry. 
And  see  sees.  101,  102,  and  103. 

Tlie  Act  61  &  62  Vict.  c.  46,  s.  8,  enacts  two  additional  exemptions, 
viz. : 

(14)  Receipt  given  by  an  officer  of  a  county  Court  for  money  received  by  him  from  a 

party  to  any  proceeding  in  the  Court. 

(15)  Receipt  given  by  or  on  behalf  of  a  clerk  to  justices  or  a  magistrate,  for  money 

i-eceived  in  respect  of  a  fine. 

As  to  special  exemptions,  see  (18)  (ii.)  (v.)  (xxviii.)  (xxxii.)  (xxxiii.  (h)) 
<xli._)  (xlv.)  (xlvi.)  (xlvii.  (b))  (liii.)  (Iv.)  (Ixi.)  (Ixix.  (h)).  Observe  that,  in  ad- 
ministrations, receipts  granted  for  voluntary  contributions  to  religious  and 
charitable  institutions  are  treated  as  exempt. 

Receipts. 

101. — (1)  For  the  purposes  of  this  Act  the  expression  "receipt"  includes  any  note, 
memorandum,  or  writing  whereby  any  money  amounting  to  two  pounds  or  upwards,  or 
any  bill  of  exchange  or  promissory  note  for  money  amounting  to  two  pounds  or  ujjwards, 
is  acknowledged  or  expressed  to  have  been  received  or  deposited  or  jiaid,  or  whereby  any 
debt  or  demand,  or  any  part  of  a  debt  or  demand,  of  the  amount  of  two  pounds  or  up- 
wards, is  acknowledged  to  have  been  settled,  satisfied,  or  discharged,  or  which  signifies  or 
imports  any  such  acknowledgment,  and  whether  the  same  is  or  is  not  signed  with  the 
name  of  any  person. 

(2)  The  duty  upon  a  receipt  may  be  denoted  by  an  adhesive  stamp,  which  is  to  be 
cancelled  by  the  person  by  whom  the  receipt  is  given  before  he  delivers  it  out  of  his 
hands. 

A  receipt  for  a  cheque  for  £2  or  upwards  is  liable  to  duty,  a  cheque  being 
included  in  the  expression  "  Bill  of  exchange  "  (see  sec.  32  quoted  under  that 
head).  A  stamped  receipt  must  be  given  where,  on  a  settlement  of  cross 
accounts,  the  balance  payable  amounts  to  £2  or  upwards.     In  Lucas,  5  C.  B. 


STAMPS  461 

949,  13  L.  J.  Q.  B.  208,— a  case  falling  under  the  Act  35  Geo.  iii.  s.  184,— it 
was  held  that  a  discharge  of  rent  on  the  consideration  that  the  tenant,  who 
was  mortgagee  of  other  premises  belonging  to  the  lessor,  had  written  off  a 
Slim  from  his  mortgage  debt  equal  to  the  amount  of  rent  due,  was  a  receipt. 
Denman,  C.  J.,  observed  that  as  this  writing  ofl  the  debt  was  by  the  agreement 
to  be  considered  as  money,  the  document  was  a  receipt  or  discharc^e  "iven 
on  payment  of  money.  A  document,  if  it  acknowledge  the  receipt  of  money, 
is  not  the  less  dutiable  because  it  states  the  object  for  which  the  money  was 
paid  (TAowsoT?,  1894,  32  S.  L.  R  16;  cf.  WdsJis  Trs.,  1885,  12  E.  851). 
In  Cameron,  1891, 18  E.  728,  the  document  in  question  was  headed  "  State- 
ment of  the  annuity  due  to "  A. ;  then  followed  entries  of  various  half- 
yearly  payments  of  annuity  ;  and  at  the  foot,  below  the  total  brought  out, 
were  the  words  "  I  acknowledge  that  my  annuity  as  above  detailed  has 
been  duly  accounted  for  to  me."  It  was  held  that  the  document  was  not  a 
fitted  account  (as  to  which,  cf.  Finney,  5  C.  B.  504,  17  L.  J.  C.  P.  158),  but 
a  receipt.  A  writing  acknowledging  receipt  of  a  sum  in  compensation  for 
personal  injuries,  and  discharging  the  alleged  wrong-doer  from  all  claims 
competent  to  the  injured  person,  is  regarded  as  liable  to  duty  as  an  agree- 
ment (see  White,  "Times,"  13  Dec.  1889,  per  Huddleston,  B.).  Quoad 
liability  to  receipt  duty,  it  appears  to  fall  under  exemption  (11).  A  document, 
in  form  a  receipt,  stating  that  the  money  received  was  received  on  loan,  is 
chargeable  as  an  agreement,  and  does  not  require  to  be  stamped  in  addition 
as  a  receipt  (see  Welsh's  Trs.,  ut  supra). 

102.  A  receipt  given  without  being  stamped  may  be  stamped  with  an  impressed 
stamp  upon  the  terms  following  ;  that  is  to  say, 

(1)  Within   fourteen  days  after  it  has  been  given,  on  jiayment  of  the  duty  and  a 

penalty  of  five  pounds  ; 

(2)  After  fourteen  days,  but  within  one  month,  after  it  has  been  given,  on  payment 

of  the  duty  and  a  penalty  of  ten  pounds  ; 
and  shall  not  in  any  other  case  be  stamped  with  an  impressed  stamp. 

103.  If  any  person — 

(1)  (iives  a  receipt  liable  to  duty  and  not  dul}'  stamped  ;  or 

(2)  In  any  case  where  a  receipt  would  be  liable  to  duty  refuses  to  give  a  receipt  duly 

stamped  ;  or 

(3)  Upon  a  payment  to  the  amount  of  two  pounds  or  upM'ards  gives  a  receii^t  for  a 

sum  not  amounting  to  two  pounds,  or  separates  or  divides  the  amount  jtaid 
with  intent  to  evade  the  duty  ; 
he  shall  incur  a  fine  of  ten  pounds. 

£    *•.     (I 
Reconveyaxce,  Release,  or  Renunciation  of  any  security.    See  Mortgage, 

etc. 
Release  or  Renunciation  of  any  property,  or  of  any  right  or  interest  in 
any  property' — 

Upon  a  sjilc.     See  Convkyanck  on  Sale. 
liy  way  of  security.     See  Moutoage,  etc. 
Inanyotherca.se.  .  .  .  .  .  .  .0  10     0 

Renunciation.     See  Reconveyanck  and  T{elease. 

RCNUNCIATION,  LkTTER  OF.      See  LlOTTKK  of  AlLOT.MENT. 

Resignation.  Principal  or  original  instrmnent  of  resignation,  or  .service  of 
cognition  of  heir.s,  or  cliarter  or  seisin  of  any  hcnises,  land.'*,  or  other  lieril  - 
able  subjects  in  Scotland  lioldiiig  burgage,  or  of  l)iirgage  tenure   .  .       0     'i     0 

And  instrument  of  resignation  of  any  lands  or  other  lieritable  subjects  in 

Scotland  not  of  burgag<- teiMire        .  .  .  .  .  .       o     .")     O 

Revocation  of  any  u-se  or  trust  of  any  property  by  any  M-riting,  not  being  u 

will   .  .  .  .         '  .  .'  .  .  .  .      0  lo    0 

Scrip  Certificate  or  ScRir.     Sec  Lettkr  of  Allotment. 

Sklsin.  Instnimcnt  of  seisin  given  upon  any  charier,  precept  of  clare 
constiit,  or  precejit  from  Chancery,  or  ujion  any  wadset,  Iierilable  liond, 
disposition,  a])prizing,  adjudication,  or  otlierwi.sc  of  any  land.s  or  herital)Ie 
Bubjects  in  Scotland  .  .  .  .  .  .  .       0     .'»     (> 


462  STAMPS 

Prior  to  33  &  34  Vict.  c.  97,  the  charge  was  Is.  {E.  of  EglintorCs  Tr., 

3  H.  &  C.  871,  34  L.  J.  Ex.  225). 

£    s.    d. 

And  any  Notarial  Instrument  to  be  expeded  and  recorded  in  any  Register 

of  Sasines     .  .  .  .  .  •  •  •  .050 

Settlement.  Any  instrnment,  whether  vohmtary  or  upon  any  good  or 
valuable  consideration,  other  than  a  hand  fide  pecuniary  consideration, 
whereby  any  definite  and  certain  principal  sum  of  money  (whether 
charged  or  chargeable  on  lands  or  other  hereditaments  or  heritable  subj  ects 
or  not,  or  to  be  laid  out  in  the  purchase  of  lands  or  other  hereditaments  or 
heritable  subjects  or  not),  or  any  definite  and  certain  amount  of  stock,  or 
any  security,  is  settled  or  agreed  to  be  settled  in  any  manner  whatsoever  : 
For  every  £100,  and  also  for  any  fractioual  part  of  £100,  of  the  amount 

or  value  of  the  property  settled  or  agreed  to  be  settled  .  ,050 

Exeiwption. 

instrument  of  appointment  relating  to  any  property  in  favour  of  persons 
specially  named  or  described  as  the  objects  of  a  power  of  appointment, 
where  duty  has  been  duly  paid  in  respect  of  the  same  property  upon  the 
settlement  creating  the  power  or  the  grant  of  representation  of  any  will 
or  testamentary  instrument  creating  the  power. 
And  see  sees.  104,  105,  and  106. 

The  Finance  Act,  1894  (57  &  58  Vict.  c.  30),  s.  5  (4),  provides  that  "  any 
person  paying  the  settlement  estate  duty  .  .  .  upon  property  comprised  in 
a  settlement,  may  deduct  the  amount  of  the  ad  valorem  stamp  duty  (if  any) 
■charged  on  the  settlement  in  respect  of  that  property." 

An  iustrament  containing  a  mere  statement  by  the  persons  holding  an 
estate  that  they  hold  it  on  trust  is  liable  to  duty  not-  under  this  head  of 
charge,  but  under  "  Declaration  of  any  use  or  trust."  To  attract  settlement 
■duty,  the  instrument  must  contain  the  trust  purposes  for  which  the  estate  is 
held  (see  Maxwell,  18G6,  4  M.  1121).  Thus  this  duty  is  not  chargeable  if 
trustees  are  introduced  only  that  execution  may  pass  at  their  instance.  Nor 
is  it  chargeable  in  respect  of  an  assignation  of  a  fund  to  trustees  to  pay  an 
annuity  out  of  the  income,  and  to  hold  the  fund  itself  for  the  assignors.  It 
is  chargeable  where  the  settlement  is  for  a  limited  period  only;  and  an 
assignment  of  a  fund  to  trustees  to  hold  for  the  assignor's  life-interest,  and 
on  his  death  to  convey  the  trust  estate  as  directed  by  will,  and  failing  such 
direction  to  the  assignor's  heirs  in  molilibus,  has  been  regarded  as  dutiable 
under  this  head.  Duty  is  also  chargeable  under  this  head  where  a  person 
agrees  or  binds  himself  to  j)ay  or  bequeath  sums  to  be  held  for  the  purposes 
•of  the  trust.  Where  the  settlor  directs  the  trustees  to  pay  over  to  him 
absolutely  a  portion  of  the  money  settled  so  soon  as  they  receive  it,  that 
portion  will  escape  the  charge. 

Where  the  sum  is  settled  by  the  settlor,  subject  to  another's  life-interest, 
or  to  a  power  of  appointment,  the  duty  is  charged  as  if  the  life-interest  or 
power  did  not  exist. 

"  The  charge  applies  to  every  interest,  whether  vested,  whether  liable  to 
■be  divested,  whether  contingent  or  not,  on  any  sum  of  which  it  may  be 
said  that  it  is  definite  and  certain  in  amount"  {Onslow,  [1891]  1  Q.  B.  239, 
per  Fry,  L.  J.).  "  The  words  '  definite  and  certain '  apply  not  to  the 
interest  of  the  settlor  or  the  amount  of  the  interest,  but  to  the  amount  "  of 
the  money  or  stock  {ih.,  per  Bowen,  L.  J.).  The  existing  fact  can  alone  be 
looked  to  ;  and  accordingly  land,  although,  by  the  operation  of  the  doctrine 
of  conversion,  it  may  be  regarded  in  law  as  money,  cannot  be  regarded  as  a 
"  definite  and  certain  "  sum  {Stuclcij,  L.  E.  5  Ex.  85).  A  conveyance  of 
heritable  property  or  of  furniture  or  of  aeq^iiwenda  attracts  not  settlement 
^duty,  but  the  fixed  duty  of  10s. ;  and  however  many  conveyances  there  may 


STAMPS  46 


o 


be  in  the  same  deed,  but  one  deed  duty  is  charged  in  practice.  Where  a 
settlor  binds  himself  to  convey  heritage,  or,  in  his  option,  to  pay  the  value 
thereof  to  trustees,  ad  valorem  duty  is  not  exigible.  It  will  be  observed 
that  money  secured  on  land  falls  expressly  within  the  terms  of  the 
charge. 

Deed  duty  is  chargeable  where  the  one  spouse  discharges  his  or  her  lecral 
rights  in  the  property  of  the  other  only  when  settlement  duty  is  not  payable 
in  respect  of  that  property. 

A  conveyance  of  acquirenda  renders  the  settlement  containing  it  liable 
to  the  further  duty  of  10s. ;  and  an  instrument  vesting  acquirenda  \\\  the 
trustees  of  a  settlement  containing  such  a  conveyance  and  duly  stamped,  is 
not  dutiable  as  a  settlement. 

Settlements. 

104. — (1)  Where  any  money  which  may  become  due  or  iDayable  upon  any  policy  of 
life  insurance,  or  upon  any  security  not  being  a  marketable  security,  is  settled  or  acfi'eed 
to  be  settled,  the  instrument  whereby  the  settlement  is  made  or  agreed  to  be  made  is 
to  be  charged  with  ad  valorem  duty  in  respect  of  that  money. 
(2)  Provided  as  follows  : — 
(a)  Where,  in  the  case  of  a  policy,  no  provision  is  made  for  keeping  up  the  policj^, 
the  ad  valorem  duty  is  to  be  charged  only  on  the  value  of  the  policy  at  the 
date  of  the  instrument : 
(6)  If  in  any  such  case  the  instrument  contains  a  statement  of  the  said  value,  and  is 
stamped  in  accordance  with  the  statement,  it  is,  so  far  as  regards  tlie  policv,  to 
be  deemed  duly  stamped,  unless  or  until  it  is  shown  that  the  statement  is 
untrue,  and  that  the  instrument  is  in  fact  insufficiently  stamped. 

Prior  to  13th  May  1864  (27  Vict.  c.  18,  s.  12),  a  settlement  of  a  policy 
of  insurance  was  not  chargeable  under  this  head  {Sanxillc,  10  Ex.  159,  23 
L.  J.  Ex.  270). 

Observe  that  it  is  sufficient  to  attract  the  charge  that  there  be  in  some 
instrument,  not  necessarily  in  the  settlement,  a  provision  binding  the 
settlor  of  the  policy  to  keep  it  up. 

A  bonus  accrued  forms  part  of  the  dutiable  amount. 

If  a  settlor  bind  himself  to  effect  a  policy  for  a  definite  sum  and  to  keep 
it  up,  the  obligation  is  liable  to  the  charge  (see  Arthurs  Estate,  L.  E.  14  Ch. 
D.  603). 

Where  a  policy,  upon  which  a  sum  has  been  borrowed,  is  brouglit  into 
settlement,  and  there  is  no  mention  of  the  debt  in  the  settlement,  no 
allowance  is  given,  on  the  ground  that  it  is  apparently  the  settlor's  intention 
to  pay  off  the  debt  from  funds  other  than  those  settled. 

105.  An  in.strument  chargeable  with  ad  valorem  duty  as  a  settlement  in  respect  of 
any  money,  stock,  or  security  is  not  to  be  charged  willi  any  further  duty  by  reason  of 
containing  provision  for  the  ])aynient  or  transfer  of  tlie  money,  stock,  or  security,  or  by 
reason  of  containing,  where  the  money,  stock,  or  security  is  in  reversion  or  is  not  ])aid  or 
transferred  upon  the  execution  of  the  instrument,  jirovision  for  the  ])aymcnt,  by  the 
person  entitled  in  possession  to  the  interest  or  dividends  of  tlie  money,  slock,  or  security, 
during  the  continuance  of  such  possession,  of  any  annuity  or  yearly  sum  not  exceeding 
interest  at  the  rate  of  four  )>ound.s  per  centum  per  annum  upon  the  amount  or  value  of 
the  money,  stock,  or  security. 

Thu.s  wlierc  in  a  marriage  contract  tlie  settlor  Itinds  himself  and  his 
representatives  to  pay  to  liis  widf»w  £100  for  ni(turningK  and  an  annuily  of 
£300,  and  places  £.'>000  in  the  hands  of  tnistccs  bir  tbe  ])urp()S('.  inter  alia, 
of  meeting  these  obligations,  settlement  duty  is  charged  (in  £."i000,  and  bond 
of  annuity  dtity  upon  £104,  that  sum  being  the  amount  of  the  annuity  loss 
4  per  cent,  upon  £4900,  i.e.  £5000  less  £100  for  mournings.  Tlie  abate- 
ment is  allowed  wlietlier  the  obligation  to  pay  the  annuity  is  contained  in 
the  settlement  or  in  a  sei)aratc  instrument. 


464  STAMPS 

106. — (1)  "Where  several  instruments  are  executed  for  effecting  tlie  settlement  of  tlie 
same  property,  and  the  ad  valorem  duty  chargeable  in  respect  of  the  settlement  of  the 
property  exceeds  ten  shillings,  one  only  of  the  instruments  is  to  be  charged  Avith  the  ad 
valorem  duty. 

(2)  Where  a  settlement  is  made  in  pursuance  of  a  previous  agreement,  upon  which 
ad  valorem  settlement  duty  exceeding  ten  shillings  has  been  jjaid  in  respect  of  any 
property,  the  settlement  is  not  to  be  charged  with  ad  valorem  duty  in  respect  of  the 
same  property. 

(3)  In  each  of  the  aforesaid  cases  the  instruments  not  chargeable  with  ad  valorem 
duty  are  to  be  charged  with  the  duty  of  ten  shillings. 

Where  settlement  duty  has  been  paid  upon  bonds,  the  transfers  are 
charged  with  6d.  j:'c?-  cent,  up  to  a  maximum  of  10s.  Where  it  has  been  paid 
upon  stocks,  the  transfers  are  charged  with  5s.  per  cent.  {i.e.  with  settlement 
duty)  up  to  10s.  See  Lant,  3  Xev.  &  Per.  329.  A  separate  bond  by  the  settlor 
in  favour  of  the  trustees  of  tlie  settlement  for  the  sum  agreed  to  be 
settled  is  charged  with  duty  at  the  rate  of  2s.  6d.  per  cent,  up  to  10s. 

Share  Certificate,  Foreign  axd  Colonial.     See  Marketable  Security. 

rA.  duty   of    an    amount  equal  to  three 
c,  ITT    „         ,„   ■  1  i„,    ti  „   „ :„,-^„^    ^f  +1,^1     times  the  amount  of  the  ad  valorem 

Share  Warrant  issued  under  the  provisions  of  the      ,tamp  dutv  which  would  be  chargeable 
Comjianies  Act,  18G7,  and   Stock  Certificate  )     on  a  deed  transferring  the  share  or 

tn  lipiTpr  1      shares  or  stock  specified  in  the  warrant 

LU  ULciiei.  or  certificate  if  the  consideration   for 

And  see  sees.  10/,  lOO,  lOD.  I      the  transfer  were  the  nominal  value  of 

such  share  or  shares  or  stock. 

Share  Warrants. 

107.  If  a  share  warrant  is  issued  without  being  duly  stamped,  the  company  issuing 
the  same,  and  also  every  ])erson  who,  at  the  time  when  it  is  issued,  is  the  managing 
director  or  secretary  or  other  principal  officer  of  the  companv,  shall  incur  a  hue 
of  HbO. 

Stock  Certificates  to  Bearer. 

108.  For  the  purposes  of  this  Act  the  expression  "stock  certificate  to  bearer" 
includes  every  stock  certificate  to  bearer  issued  after  the  third  day  of  June  one  thousand 
eight  hundred  and  eighty-one,  under  the  provisions  of  the  Local  Authorities  Loans  Act, 
1875,  or  of  any  other  Act  authorising  the  creation  of  debenture  stock,  county  stock, 
corj)oration  stock,  municipal  stock,  or  funded  deljt,  by  whatever  name  known. 

109. — (1)  Where  the  holder  of  a  stock  certificate  to  bearer  has  been  entered  on  the 
register  of  the  local  authority  as  the  owner  of  the  share  or  stock  described  in  the 
certificate,  the  certificate  shall  be  fortli\^ith  cancelled  so  as  to  be  incapable  of  being 
reissued  to  any  person. 

(2)  Every  person  by  whom  a  stock  certificate  to  bearer  is  issued  without  being  duly 
stamped  shall  incur  a  fine  of  £50. 

£    s.    d. 
Superannuation  Annuity.     See  Bond,  Covenant,  etc. 
Surrender — 

Of  copyholds.     See  Copyhold. 

Of    any    other    kind   whatsoever  not    chargeable   Avith    duty   as  a 

conveyance  on  sale  or  a  mortgage        .  .  .  .  .       0  10    0 

Tack  of  lands,  etc.,  in  Scotland.     See  IjEASE  or  Tack. 
Tack  in  Security.     See  Mortgage,  etc. 
Transfer.     See  Conveyance  or  Transfer. 

Transfer.  Any  request  or  authority  to  the  purser  or  other  officer  of  any 
mining  company,  conducted  on  the  cost-book  system,  to  enter  or  register 
any  transfer  of  any  share,  or  part  of  a  share,  in  any  mine,  or  any  notice 
to  such  purser  or  officer  of  any  such  transfer  .  .  .  .006 

And  see  sec.  110. 
110. — (1)  The  duty  ujiou  a  recpiest  or  authority  to  the  purser  or  other  officer  of  a 
mining  company  conducted  on  the  cost-book  system  to  enter  or  register  the  transfer  of 
any  share  or  part  of  a  share  of  the  mine,  and  the  duty  upon  a  notice  to  such  purser  or 
officer  of  any  such  transfer,  may  be  denoted  by  an  adhesive  stamp,  which  is  to  be 
cancelled  by  the  person  by  whom  the  request,  authority,  or  notice  is  written  or 
executed. 

(2)  Every  person  who  writes  or  executes  any  such  request,  authority,  or  notice,  not 
being  duly  stamped,  and  every  purser  or  other  officer  of  any  such  company  who  in  any 


STAMi'S  465 

manner  obej-s,  compile:^  with,  or  gives  effect  to  anj^  such  request,  authority,  or  notice, 
not  being  duly  stamped,  shall  incur  a  tine  of  £20. 

£   s.    d. 
Valuation.     See  Appraisement. 

Voting  Paper.     Any  instrument  for  the  purpose  of  voting  by  any  person 
entitled  to  vote  at  any  meeting  of  any  body  exercising  a  public  trust,  or 
of  the  shareholders,  or  memliers,  or  contributors  to  the  funds  of  any 
company,  society,  or  institution      .  .  .  .  .  .001 

And  see  sec.  80. 

Sec.  80  is  quoted  s.v.  "Letter  or  Power  of  Attorney,"  etc.  A  voting 
paper  does  not  fall  under  this  charge  unless  it  can  only  be  used  for  voting 
at  a  meeting.  If  there  l)e  no  meeting  and  the  voting  paper  is  sent  by  post, 
it  is  not  liable  to  duty. 

£  .^.  d. 
Wadset.    See  Mortgage,  etc. 
Warrant  of  Attorney  to  confess  and  enter  up  a  judgment  given  a^^  a 

security  for  the  payment  or  repayment  of  money,  or  for  the  transfer  or 

retransfer  of  stock.     See  Mortgage,  etc. 
Warrant  of  Attorney  of  any  other  kind      .  .  .  .  .      0  10    0 

Warrant  for  Goods   .  .  .  .  .  .  .  .003 

Exem/ptions. 

(1)  Any  document  or  writing  given  by  an  inland  carrier  acknowledg- 

ing the  receipt  of  goods  conveyed  by  such  carrier. 

(2)  A  weight  note  issued  together  with  a  duly  stamped  warrant,  and 

relating  solely  to  the  .same  goods,  wares,  or  merchandise. 
And  see  sec.  111. 
111. — (1)  For  the  pur2)0ses  of  this  Act  the  expression  "warrant  fur  goods"  means 
any  document  or  writing,  being  evidence  of  the  title  of  any  person  tlierein  named,  or 
liis  assigns,  or  the  holder  thereof,  to  the  property  in  any  goods,  wares,  or  merchandise 
lying  in  any  warehouse  or  dock,  or  upon  any  Avliarf,  and  signed  or  certified  by  or  on 
behalf  of  the  person  having  the  custody  of  the  goods,  wares,  or  merchandise. 

(2)  The  duty  upon  a  warrant  for  goods  may  Ije  deuoted  liy  an  adhesive  stamp,  whicli 
is  to  be  cancelled  by  the  person  by  whom  the  instrument  is  made,  executed,  or  issued. 

(3)  Every  person  who  makes,  executes,  or  issues,  or  receives  or  takes  by  way  of 
security  or  indemnitv,  anv  warrant  for  goods  not  being  duly  stamped,  shall  incur  a  fine 
of  £20. 

See  s.v.  "  Deliverv  Order." 

£  s.   d. 
Warrant  under  the  sign  manual  of  Her  ^lajesty.        .  .  .  .0100 

Writ — 


(1)  Of  Acknowledgment  under  the  Registration  of  Leases  (Scotland)^ 
Act,  1857 


(2)  Of  Acknowledgment  by  any  person  infett  in  lands  in  Scotland  { 

in  favour  of  the  heir  or  disponee  of  a  creditor  fully  vested   in  j 
right  of  an  heritable  security  constituted  l)y  infeftment  .1 

(3)  Of  KE.SIGNATION  and  Clare  Constat         ....-' 


[Dowell,  A  History  and  Explanation  of  the  Stam]^  Duties,  1873  ;  id.,  A 
History  of  Taxation  and  Taxes  in  England,  2nd  eil,  1895 ;  Alpe,  Laic  of 
Stam2J  Duties,  6th  ed.,  1898  ;  Grifntli,  Stamp  Di'tlrs  Diycst,  1  UIi  ed.,  1894  ; 
irighinore,  The  Stamp  Art,  1891  ;  Tilslcy  on  the  Stamp  Lan:%  1st  cd.,  1847  ; 
Hud  cd.,  1854;  3rd  cd.,  1871.] 


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