REPORTS. Court of Session. (Reported by PATRICK SMITH, Esq., LL.B.; EDWIN FIRST DIVISION. (The LORD PRESIDENT (ROBERTSON), and Lords ADAM, M'LAREN, and KINNEAR.) Pursuer further alleged, "on Tuesday the 8th day of May current, defender's wife came to pursuer and told her that she had found out her true character, as defender had informed her he had ascertained pursuer was the mother of an illegitimate child..." An issue was proposed, "whether on or about April or May 1894, and in or near the defender's said residence, the defender, in the presence and hearing of his wife, falsely and calumniously said of and concerning the pursuer, that she had had an illegitimate child . . .” Held that the issue fell to be rejected on the ground that there was no substantive averment that defender had made the statement complained of, but merely that his wife had said he had made it.-HELEN CUNNINGHAM v. PETHERBRIDGE; 17th October 1894. Counsel for Pursuer, Gunn; Agent, John Mackay, S.S.C.-Counsel for Defender, Jameson, A. S. D. Thomson; Agent, Alexander Ross, S.S.C. P. S. SECOND DIVISION. (The LORD JUSTICE-CLERK (KINGSBURGH), and Lords YOUNG, RUTHERFURD CLARK, and TRAYNER.) 223. REPARATION SLANDER MASTER AND SERVANT PRIVILEGE MALICE-ISSUE - - RELEVANCY-WANT OF SUBSTANTIVE AVERMENT OF SLANDER.-Pursuer, a domestic servant, appealed for a jury trial in an action against her employer for damages in respect of alleged slanders. She alleged that on the evening of 7th April she and 224. SUCCESSION HERITABLE AND MOVABLE a fellow-servant were entertaining two male-CONVERSION.-By trust disposition and settlevisitors in their bedroom; this was discovered by the defender, who immediately turned the visitors out of the house, and sent pursuer's fellow-servant upstairs to the parlour, where she remained till three or four in the morning. Pursuer further alleged that about three o'clock on the morning of the 8th April defender went to pursuer in her bedroom and charged her with being guilty of immoral conduct with one of the visitors of the previous evening. She also alleged that defender offered to examine her so that he might know whether she had been guilty of the immoral conduct, and on pursuer refusing, attempted to do so by force, and he also sought to induce her to have sexual intercourse with himself. An issue was proposed, based on these allegations, "whether on or about 8th April . . . defender had falsely and calumniously charged the pursuer with having been guilty shortly before of immoral conduct. . ." Defender argued that defender was privileged, and "malice" must go into the issue. Held that "malice" need not go into the issue. The mere relationship of master and servant was not sufficient to raise a case of privilege. The occasion when the language was used must be looked to, and pursuer's statements did not disclose a case of privilege. If the facts as ascertained at the trial should show a case of privilege, the judge could then direct the jury accordingly. ment James Russell conveyed to trustees his whole means and estate, heritable and movable, for the purposes therein specified. After providing for various purposes, all of which have been fulfilled, the testator declared, under the fourth purpose thereof, that the deed was granted, and the residue of his said heritable and movable estate was conveyed, after accomplishing the previous objects of the trust, and after deduction of all expenses attending the execution of the trust, for behoof of his children, viz.-David Russell, Jean Russell, spouse of Alexander M'Lachlan, and Elizabeth Russell, spouse of John Goodwin, equally among them, share and share alike, during their respective lifetimes, and for their liferent use allenarly, and exclusive of the jus mariti of the then or any future husbands of the said Jean Russell and Elizabeth Russell; and, with this view, the trustees were empowered either to lend out and invest the said several shares of said residue on good heritable security, at the usual rate of interest, for the time, taking the bonds or vouchers payable to themselves as trustees foresaid, or to purchase heritable property, the rights of which were also to be taken in their favour as trustees, and for behoof foresaid, as to them might seem proper, in either case the trustees accounting for and making payment to his said children in liferent, and for their liferent use allenarly, of the whole free annual rent, interest, and produce of their respective shares of said residue, after deducting all expenses of management, and that during all the days and years of their respective lifetimes, half-yearly, at the usual terms. The testator further provided that, after the deaths of the said David Russell, Jean Russell, and Elizabeth Russell, severally and respectively, his trustees should make payment of or convey the said shares of the residue of his estate falling to them respectively "or the produce thereof, if the same has been previously invested in heritable property," equally to and among the whole lawful children of each of the said David Russell, Jean Russell, and Elizabeth Russell, severally, according to their parent's share and interest therein, that is, in the proportions of one-third of the free residuary trust funds, equally to and among the lawful issue of the said David Russell, and, failing all such issue, and the children of such issue, then to and among his other grandchildren equally-and in similar terms to and among the other two stirpes. It was provided that the trustees should have "the most full and unlimited powers to sell, dispose of, and convert into cash" the whole of his heritable and movable estates therein before disponed, as well as such properties as they might purchase, in virtue of the deed of settlement for carrying the purposes of the deed into execution in the manner and on the principles therein before pointed out, and, to that end, the trustees were empowered to grant all necessary conveyances thereof, "and to invest the price and produce" of the whole or such parts of the trust estate as might be so sold in good heritable security, at the accustomed rate of interest for the time, taking the bonds and vouchers payable to themselves as trustees, with power to uplift, discharge and reinvest, as might appear proper. The deed contained no express direction to the trustees to sell or convert the estates, or any part of them, into cash. The testator died in 1833, leaving both heritable and movable estate (the quality of which remains practically unchanged at this date); and survived by his said three children. Of these (1) Mrs Goodwin is still living, and has a family, all the members of which have reached majority; (2) David Russell died in 1865, leaving nine of a family; and (3) Mrs M'Lachlan died in 1872, leaving two daughters, viz., Mrs Crombie, who is still living, and Mrs Stevenson, who died, a widow and intestate, in 1886. Mrs Stevenson was survived by four children (1) Jane Russell Stevenson; (2) Louis Kossuth Stevenson; (3) David Russell Stevenson; and (4) Allan Flora Stevenson. No division of the estate had taken place, the trustees having, at the request of the grandchildren, continued to pay to them the share of revenue previously liferented by their parent. Similarly, after the death of Mrs Stevenson, the share of revenue paid to her was paid to her family. Louis Stevenson died intestate and unmarried in January 1892; and Allan died in March 1892 leaving a widow, to whom by will he bequeathed all his property, heritable and movable. The second parties to this special case are the said Jane Russell, in her own right, and as executrix-dative of Louis, and the widow of Allan and her mandatories. These parties maintained that the interests of the grandchildren (the children of Mrs M'Lachlan) are to be considered as movable interests a morte testatoris, and relied on Playfair's Trustees, 1st June 1894 (ante, Vol. II., No. 47 ; 31 S.L.R. 671); Advocate-General v. Blackburn's Trus tees (10 D. 166). The third parties were Davil Russell Stevenson and his mandatory; and they maintained that it was not the intention of the testator that there should be conversion; that he had directed the trustees to set apart the "several shares" at his death; and quoted Buchanan v. Angus (4 Macq. 374), and Aitken's Trustees v. Monro (10 R. 1077). The Court, following the case of Playfair's Trustees (supra), held that the interests of the children were movable, a morte testatoris; that conversion was indispensable to the administration of the trust, seeing that there must be three several periods of distribution of residue; and that, though the language of the deed was peculiar, it would be impossible to set apart the three several shares at the testator's death, inasmuch as there must also be, in terms of the will, a division into three equal shares at the deaths of the respective liferenters.-Special Case for E. MACHARG AND ANOTHER (RUSSELL'S TRUSTEES), AND OTHERS; 17th October 1894. Counsel for First and Third Parties, Chisholm; Agent, J. Gordon Mason, S.S.C.—Counsel for Serond Parties, Cooper; Agent, R. Ainslie Brown, S.S.C. R. E. M. S. OUTER HOUSE. (Before Lord Kincairney.) 225. COMPANIES ACTS-LIQUIDATION-PETITION BY FULLY PAID-UP SHAREHOLDER-COMPETENCY — SOLVENCY.-William Walker and others, fully paid-up shareholders of the Company, presented a petition for the judicial winding-up of The Tannock Chemical Company, Limited. Answers were lodged on behalf of the Company, in which it was maintained that the petition was incompetent, as the petitioners were fully paid-up shareholders, and could have no interest in the winding-up, as it appeared from the petition that the Company was insolvent. It was admitted that the Company must be wound up, and a petition for that purpose was also being presented by the Respondents. Certain creditors of the Company appeared and supported the original petition. Held that a fully paid-up shareholder is a contributory in the sense of sections 74 and 82 of the Companies Act, 1862, and is therefore expressly authorised by section 82 to petition: that no case had gone the length of deciding that a petition by a fully paid-up shareholder was wholly incompetent, unless there be a prima facie case for expecting that the Company will prove insolvent; in the present case investigation may show that there will be a balance after the payment of debts. Winding-up order therefore pronounced.--Petition,WILLIAM WALKER AND OTHERS; 29th September 1894. Counsel for Petitioners, John Wilson; Counsel for Concurring Creditors, Burnet; Agents, Carmichael & Miller, W.S.-Counsel for Respondents, F. T. Cooper; Agents, Menzies, Black & Menzies, W.S. E. A. (Before Lord Stormonth Darling.) reduction of the Sheriff's deliverance was incompetent, the Sheriff's deliverance being final. Valuation Act, 1854, sects. 30, 24; Magistrates of Glasgow v. Hall, 14 R. 319, Lord President's opinion; Stirling & Son v. Commissioners of Inland Revenue, 11 M. 480. Held that the canals were one concern and must be assessed together, and (2) that the Sheriff's deliverance fell to be reduced. The various statutes referring to the canals, particularly the provision of the Act of 1860, 23 and 24 Vict. cap. 46, sect. 25, giving the Commissioners power to borrow on the security of both canals, show that the two canals were to be regarded as one. They must, therefore, be assessed as one concern. The Sheriff had only jurisdiction in regard to a valuation appeal where the lands and heritages fell inside his county; but as the canals were one concern and lay partly in other counties, the appeal ought to have been taken to the Sheriff, and therefore his deliverance falls to be reduced. Counsel for Pursuers, C. S. Dickson, Wilson; (Before Lord Low.) 226. VALUATION-ASSESSMENT OF THE CALE--THE COMMISSIONERS OF THE CALEDONIAN CANAL DONIAN AND CRINAN CANALS-VALUATION ACT, v. THE COUNTY COUNCIL OF INVERNESS-SHIRE AND 1854, SECT. 21-APPEAL TO THE SHERIFF UNDER OTHERS; 16th October 1894. VALUATION ACT, 1884, SECT. 25-REDUCTION.The Caledonian and Crinan Canals were originally separate undertakings; but in 1848, by 11 and 12 Vict. cap. 84, the Caledonian Canal Commissioners were incorporated, and the Crinan Canal was vested in them, and in 1860, by 23 and 24 Vict. c. 46, rating and borrowing powers were conferred on the Commissioners applicable to both canals indifferently. The canals from 1848 have been managed as one undertaking. The assessor of railways and canals valued the combined canals as one undertaking for 1894 at nil, the loss on the Caledonian Canal more than extinguishing the profit on the Crinan Canal. The Crinan Canal being wholly situated in the county of Argyll, the County Council of Argyllshire appealed to the Sheriff against this valuation, and the Sheriff sustained the appeal, valuing the Crinan Canal at £290, 19s. 6d. The present action was raised by the Commissioners of the Caledonian Canal (1) to have it declared that the two canals are one undertaking and fall to be assessed in cumulo, as provided for by sect. 21 of the Valuation Act, 1854, and (2) to have the deliverance of the Sheriff reduced. On a preliminary question as to whether the Caledonian and Crinan Canals are to be treated as a Canal Company for the purposes of valuation under the 21st sect. of the Valuation Act, 1854, the First Division of the Court of Session, reversing the Lord Ordinary, found that the canals were free to be assessed as a Canal Company under the 21st sect. (reported ante, Vol. II., No. 180). The case now came to the Lord Ordinary for decision on the two questions raised. Argued for the pursuers, that the canals were one concern and free to be assessed together. Argued for the defender, (1) that on a correct construction of the statutes, the canals were separate concerns, and (2) that a 227. ENTAIL.-WIDOW'S JOINTURE-MEANING OF FREE RENT-5 GEO. IV. c. 87, SECT. 1— DUPLICANDS OF FEU-DUTY.-In a declarator to fix a widow's jointure (following on procedure, reported ante, Vol. I., Nos. 456 and 544), it was remitted to a man of business to report. From the report it appeared that the husband's estate consisted partly of duplic inds of feu-duty; these were payable at recurring periods of nineteen or twenty-one years, but in each year some of them became payable, although the annual amount derived from this source varied from year to year. The amount actually received during the year of the husband's decease was considerably in excess of the average. The reporter recommended that the value of the duplicands be capitalised, and 4 per cent. on that amount be allowed in fixing the free rental. Held that it was more in accordance with precedent, as in the case of mineral rents, to take an average of the amount of the duplicands over a series of years, and allow that in calculating the free rental. Decl., LAMONTCAMPBELL v. CARTER-CAMPBELL ; 1894. Counsel for Pursuer, Rankine, Pitman; Agents, Sheriff Court. 228. LANDLORD AND TENANT- RENT-PERSONAL UNDERTAKING-SALE OF FURNITURE-SUM LEFT IN AUCTIONEER'S HANDS TO MEET RENTFRAUD.-An action has been decided in the Sheriff Court at Rothesay of which the facts are stated in the following interlocutor and note by the Sheriff-Substitute (T. G. Martin):-Finds in point of fact (1) That the pursuer is proprietor of a house in Glen Rosa Place, Rothesay, which the defender, for the behoof of his mother, leased from him from Whitsunday 1893 to Whitsunday 1894, at a rent of £25; (2) Finds that the defender's mother died on 29th September 1893, and that he has been confirmed her executor, has given up an inventory of her estate and has disbursed the same; (3) Finds that the defender called upon the pursuer on or about 2nd October 1893, and undertook personal liability for the rent; (4) Finds that on 17th October 1893, the household furniture belonging to the defender's mother was sold by Henry Campbell, auctioneer, Rothesay, and that the proceeds were allowed to remain in his hands until 26th October, on or about which date the defender uplifted the same, less £25, which sum was allowed to remain lying in auctioneer's hands to meet the rent; (5) Finds that the pursuer consented to and approved of this arrangement; (6) Finds that the said Henry Campbell disappeared from Rothesay on or about 11th December 1893, after having made payment to the pursuer of one half-year's rent; (7) Finds that the pursuer, though aware in December 1893 that Campbell had disappeared, made no claim on the defender until after Whitsunday 1894. Finds in law, That the defender is not due the sum sued for. Finds the pursuer liable to the defender in expenses of process, and decerns. Note.-The defender frankly admits in his evidence that, at the interview which he had with the pursuer about the 2nd October 1893, he undertook personal responsibility for the rent of the house which had been occupied by his deceased mother; but he maintains that the pursuer, by his actings, is personally barred from insisting in the present claim. There can be no doubt that the pursuer got notice of the proposed sale of the furniture on the 17th October by the defender's letter to him of the 14th; and it was in consequence of the pursuer's reply to that letter on the 16th that the defender allowed the whole proceeds of the sale to remain for the time being in the auctioneer's hands. Up to this point the parties are substantially at one as to the facts, but it is with reference to what immediately followed that the discrepancy in the evidence arises. Shortly put, the defender's contention is that he called several times on the pursuer, and that he ultimately succeeded in seeing him on a day somewhere between the 20th and 26th October, that he mentioned that he intended to uplift the money then lying in Campbell's hands, and asked the pursuer whether he desired that £25 should be left in Campbell's hands to meet the rent, and that the pursuer, after deliberating, decided that this should be done. The defender's account of this interview and of what took place at it is very clear and specific, and I must say that I was favourably impressed with the way in which he gave his evidence. The pursuer, on the other hand, makes no mention of this interview in his examination-in-chief, and on cross he rather evades the questions which were put to him, and takes refuge in an unfortunate want of recollection. His daughter on this point also is unsatisfactory. Neither of them specifically deny that such an interview as the defender refers to ever took place, they simply.aver that they do not recollect it. Now, I attach the utmost importance to this meeting and to what took place at it, and after fully considering the rival statements I unhesitatingly accept that of the defender, whose account receives in my opinion material and independent corroboration from the two documents, Nos. 7 and 10 of process, as well as from the latter part of the evidence of his brother, John M'Kim. In the leading case of Rose v. Spavens (7 R. 925), what the Court then decided was, that when one of two innocent parties has to suffer by the fraud of a third, the loss must fall upon that party who put the wrongdoer in the position to commit the fraud. Applying, then, the principle of that decision to the facts of the present case, I hold it to be proved that the pursuer elected to allow the £25 to remain in Campbell's hands; it was he therefore (in a question between him and the defender) who put Campbell in a position to commit the fraud, and on him must fall the loss. Two other points were urged for the pursuer, to which I may refer in a sentence. First, it was maintained that the sum sued for being rent, it was a preferable debt; and second, that on a proper accounting, certain items on the discharge side of the executor's account should be disallowed as not being proper charges to enter into competition with the claims of creditors. To the first point the defender replied that in the circumstances of the case the sum sued for was not rent, and therefore it was not a preferable debt, and to the second, that the claim was barred by mora. Had it been necessary for me to deal with those pleas, I should have been prepared to have given effect to the defender's contentions upon both points, but I consider the case to be on all fours with and to be ruled by the decision in Rose v. Spavens already referred to.SPROWL v. M'KIM; 13th October 1894. Lord Young is, and has been throughout, a! striking personality. He always commands attention, whatever be his surroundings or the subject which he is handling. Strong individuality and force of character, coupled with great intellectual gifts, secure that. It may be frankly admitted that his lordship is not regarded as the smoothest of judges to plead before. His impatience is said to be unwarranted at times; and his sarcasms, now and then, are thought to be somewhat overplentiful. But all this is felt to be on the surface merely. It in no degree VOL. II.-PART 16. to be The appointment of Mr F. P. Walton, advocate, Legal Secretary to the Lord Advocate, proves that, in filling up Scottish legal offices, nationality is not a consideration which is allowed. weight where man'sabilities justify a Mr his selection. Walton is an Eng, lishman; but we have not heard it suggested that this is, in any degree, a disqualification for his new appointment, or for any of those he vacates. Yet they tell us that in England certain Scotsmen's claims to office would have been admitted had they not been Scotsmen. An interesting point in connection with the peculiarities of alimentary conditions attached to liferents or annuities was argued recently before a bench of seven judges. The circumstances of the case (Eliott's Trustee v. Eliott, 13th July 1894, 31 S.L.R. 850) were these :-A husband by his antenuptial marriage-contract had disponed and conveyed to trustees his whole means and estate. The trustees were directed to hold the estate for him, and for his wife if she should survive him, for their liferent alimentary use allenarly. In the event |