author	case	text
Watson	Stevenson v Steel Co of Scotland Ltd edited	The Polkemmet trustees, who are not parties to this action, were at one time the proprietors, either in superiority or in full fee, of the lands of Blochairn, which lie on the north-east confines of the city of Glasgow, and are intersected by the Molendinar Burn. By a contract of feu dated in May and June, and registered in July 1871, they disponed in feu to three gentlemen of the name of Hannay, ironmasters, in trust for the firm of Hannay & Sons, two adjacent parcels of these lands, measuring about 33 and 6 acres respectively, to the north of the Molendinar Burn.By the terms of the contract the feuars became bound to construct and open three new streets running through or along their feu from west to east, in the lines and of the width shewn on a plan incorporated with the contract. Their obligation was to form the whole width of the street where shewn to be upon the solum of their feu, and to the extent of one half only where the other half was shewn to be on the solum of an adjacent feuar. There was also an obligation on the feuars to make drains and sewers in these streets. It was expressly provided that in fulfilling these obligations the feuars should have regard to the continuation of the streets eastward, “so as conveniently to accommodate the portion of the first party’s remaining lands lying on the north bank of the canal, and to the east of the ground hereby feued.” The canal referred to is the Monkland canal, which is immediately to the south of the Molendinar Burn.Among the rights conferred upon the superiors by the feu-contract, the following are of materiality to the present question. It is declared that the first party and their successors shall be entitled to give a right of access to and a power to use the said streets and common sewers or drains, or the portions thereof, from time to time formed, as well as any other streets and common sewers or drains which may be formed by the second party or their foresaids in the plots or areas of ground feued, to their feuars in the remaining parts and portions of their said lands of Blochairn, or to any other parties they may think proper, without being liable in any compensation therefor to the said second party and their foresaids. On the other hand it was declared that the second party, the feuars and their successors, should have right of access and power, so far as their superiors could competently confer the same, to use all streets and common sewers or drains, or portions thereof, which had been or might be formed by the first party or their foresaids “in the remaining portions of the said lands of Blochairn,” without being liable in compensation therefor to the first party or their successors or their feuars in the said lands. That power, standing by itself, would have been of no avail to the feuars of these two parcels or their successors; and therefore with a view to its future efficacy, the superiors bound and obliged “themselves and their successors to insert clauses sufficient to secure these objects in all the future conveyances to be granted by them or their foresaids of the lands of Blochairn or parts thereof.”If the scheme which was in the contemplation of the parties to the feu-contract of 1871 had been carried out, then all subsequent feu-rights or conveyances granted by the superiors, of their then unfeued lands of Blochairn, would have contained appropriate clauses, binding their feuars or disponees to allow the use of any streets, drains, or sewers constructed by them, free of charge, to all other feuars or disponees of the lands of Blochairn, including the Messrs Hannay. In the case of dispositions the lands disponed might have been burdened with a servitude of use. Had that course been followed, the streets, drains, or sewers would have been common to all the feuars or disponees of the estate of Blochairn, and upon the principles recognised by this House in Hislop v. Leckie , 1 reciprocal obligations would have been constituted between each and all of the feuars and disponees, which would have entitled a single feuar or disponee to vindicate his own right of user. But the obligation which the superiors undertook has never been fulfilledBy disposition, dated the 14th and 15th and registered the 17th day of May 1877, the Polkemmet trustees, in consideration of the price of £48,446, 17s. 6d., sold and disponed to William Stevenson, James Watson, and Robert M’Cord, and the survivors or survivor of them and the heir of the last survivor, as trustees and trustee for behoof of themselves, in equal portions, and their respective heirs, all their lands of Blochairn, extending to nearly 93 acres lying to the east of the Hannays’ feu and to the north of the Molendinar Burn, together with their whole right, title, and interest therein. The conveyance did not burden the lands with any servitude or right of use in favour of the Hannays or other feuars or disponees of portions of the estate of Blochairn. It is not disputed that the appellants, the pursuers of the present action, are now heritably vested in the lands and rights which were conveyed by the foresaid disposition.In May and June 1890, after the bankruptcy of the firm of Hannay & Sons and its individual partners, the trustee and commissioners on their sequestrated estates executed a deed of renunciation, by which they conveyed and disponed to the Polkemmet trustees the whole interest of the bankrupts in the lands feued by the contract of 1871, with the exception of an area of 2 acres 1 rood 30510 poles, part of the smaller parcel of about 6 acres which had been conveyed under a contract of ground-annual to one William Edwin Jackson. In November 1890 the Polkemmet trustees executed and recorded a minute of consolidation by which they merged into one estate the superiority which had all along been their property and the feu-farm fee which had been recently resigned to them. Questions have been raised on the record as to the validity of the consolidation, but these it is in my opinion unnecessary to discuss, because consolidation by the superior of his superiority with the feudal fee, although it extinguished all rights and claims as between the two estates, could not affect any interests in or burdens upon the fee which had been previously created in favour of other lands whether held in superiority or fee. In November 1890 the Steel Company of Scotland, Limited, the respondents in this appeal, acquired by disposition from the Polkemmet trustees their whole remaining interest in the lands of Blochairn, including the superiority and also the fee of the lands which had been feued to the Hannays.The present action was brought in October 1895 by the appellants, who were at that time vested with the plenum dominium of that portion of the lands of Blochairn which is situated to the east of the parcels constituting Hannays’ feu, against the respondents, who had become the owners either in superiority or feu, or both, of the whole remaining lands included in the estate of Blochairn. The conclusions of the action were to have it found and declared that the respondents were bound forthwith to form and open two streets, shewn respectively as A, B, C, D, and C, E, F, upon the plan incorporated with the feu-contract of 1871 between the Polkemmet trustees and the Messrs Hannay, with pavements on each side thereof, and with common sewers and drains therein, of such character as the Court may determine, having regard to the convenience and those portions of the lands of Blochairn in which the appellants were heritably vested.The Lord Ordinary (Low), on the 21st May 1896, sustained the second plea stated in defence by the respondents, to the effect that the appellants had no title to sue; and assoilzied the respondents from the conclusions of the action, with expenses. On a reclaiming note the learned Judges of the First Division unanimously affirmed the judgment of the Lord Ordinary, and found the respondents entitled to additional expenses.The object of the action is to compel fulfilment by the respondents of certain obligations which were undertaken by the Messrs Hannay in the feu-contract of 1871 to the Polkemmet trustees, their superiors—obligations which, if fulfilled, would be of advantage to the area to the east of the feu,which was acquired in pleno dominio by the appellants from the Polkemmet trustees in the year 1877. In order to entitle the appellants to have decree in terms of their summons, it must be shewn, in the first place, that these contract stipulations continued to be obligatory, and could have been enforced against their vassals by the Polkemmet trustees before May or June 1890, when the vassals’ right was renounced in their favour; and in the second place that the appellants, by virtue of the feudal title which they acquired in 1877, either taken per se or in connection with the terms of the feu-contract of 1871, have a legal title to enforce the obligations upon which they rely. If one or other of these propositions fails, there is an end of the appellants’ case.So far as I understood the argument for the appellants, their alleged title to enforce, in so far as calculated to benefit their lands, the stipulations of the feu-contract of 1871 was rested upon three separate grounds—the first being that they are the “successors” of the Polkemmet trustees within the meaning of the feu-contract; the second, that according to the principles approved by this House in Hislop v. Leckie , 2 they must be held to have acquired a jus quœsitum which enables them to compel performance of these stipulations, although not directly conceived in their favour; and the third that the disposition of 1877 being an onerous deed with absolute warrandice against the Polkemmet trust-estate, operated as a conveyance or assignation to them of all minor rights and obligations, whether personal or real, in or connected with the lands disponed, which were vested or competent to their authors the Polkemmet trustees.These three propositions, and the arguments by which they were supported, do not require to be considered if it be assumed or held that the feu obligations or stipulations in question were not subsisting or enforceable at the time when the appellants obtained their title to the eastern portion of the lands of Blochairn. Seeing, however, that these matters have been dealt with in the Courts below, I think it may be convenient to make the following observations with regard to them. It appears to me that a direct title to enforce these stipulations in the character of successors of the Polkemmet trustees is not, by the terms of the feu-contract, conferred upon any person or persons who have not acquired from the original superiors, the Polkemmet trustees, or by progress from them, their right to the superiority of the lands feued to the Hannays. As regards the second point, whilst it appears to me that there may be a, jus quœsitum arising to disponees, as well as to feuars, where there are reciprocal obligations between them, I am of opinion that there are no circumstances to be found in the present case from which such a right can be inferred. So far as concerns the third point, I am of opinion that the argument addressed to us for the appellants was entirely consistent with authority, and I need only refer to the doctrine laid down by Lord Stair, 3 and by Mr Erskine, 4 which has, so far as I am aware, never been modified or controverted. If, therefore, there had been at the time when the appellants obtained their title to the eastern portion of the lands of Blochairn, lying to the north of Molendinai Burn, an outstanding obligation in the feu-contract of 1871, connected with the lands disponed to them, for the benefit of these lands if fulfilled, and enforceable by their authors as superiors under the feu-contract, it appears to me that the disposition of 1877 would have operated as a conveyance or assignation to them of their authors’ right to sue the feuar of 1871 upon his obligation.I come now, although not in its logical sequence, to the first proposition, which, as already indicated, I conceive it to be necessary for the appellants to establish, not only as the groundwork of their success on the merits, but of their title to sue. It is obviously a somewhat idle proceeding to discuss the question whether a pursuer has a title to enforce an obligation if there be no existing obligation capable of being enforced.By the law of Scotland a contract or disposition in feu, although its subject-matter be land, or heritable rights in land, is governed in many, if not all, important respects by the same equitable rules which apply to personal contracts. In such deeds it is usual for the feuar, as a condition of his tenure, to undertake obligations similar to those which were imposed upon the Hannays and their successors in the feu by the contract of 1871. It is, in like manner, matter of common practice for the superior to undertake, on behalf of himself and his successors, obligations in favour of the feuar and his successors in the feu. These obligations between the superior and his vassal are rightly regarded as the counterparts of each other. That is eminently the case with respect to those stipulations and obligations in the feu-contract of 1871 which relate to the making and use of streets, drains, and sewers in the lands feued. The obligation of the Hannays, the feuars, is to make these streets, drains, and sewers, and to allow all the other feuars of the lands of Blochairn to use them. But the condition upon which that obligation is undertaken, and upon the fulfilment of which it depends, is that the superior shall in all future feu-rights of the lands of Blochairn insert clauses binding the feuars to give the Hannays a similar right to use all streets, drains, and sewers constructed by them. It is true that the superior professes to give the Hannays a right to use such streets, drains, or sewers, but that privilege would have been utterly ineffectual unless it was made a burden upon other feuars whose feudal right it affected.The immediate effect of the superior’s granting in 1877 an unqualified disposition to the appellants of their lands to the east of the Hannay’s feu was to disable them from fulfilling to the Hannays and their successors in the feu the condition or counterpart obligation, in respect of which they had undertaken to give to the feuars of the lands, now belonging in full property to the appellants, the right to use the streets, drains, and sewers constructed by them upon their own feu. Accordingly, in the same moment in which they executed the disposition of 1877 in favour of the appellants, the superiors ceased, in my opinion, to have any right or title to enforce that obligation against their feuars of 1871.For this reason I am of opinion that the interlocutor appealed from ought to be affirmed with costs.
Watson	Laceby v E Lacon And Co Ltd edited	My Lords, the Legislature have enacted that the licensing justices shall not remove (whatever that may mean) a licence from one set of premises to another unless the owner of the house which is about to be deprived of the licence is called as a party to the proceedings for his interest, and unless he consents to the order being pronounced. In the present case I think the only question is whether such an order has been pronounced. I do not think it is enough to bring the case within the statutory requirement of the presence of the owner of the house that the proceedings of the justices shall be attended with precisely the same consequences as if they had been asked to make, and had in point of fact made, an order of removal. It is not enough to say, as some of the judges have said, that the two things are in substance the same. It is not enough to say that the result of either proceeding must be the same. The Court must come to the conclusion, in order to bring the matter within the statutory prohibition, that what has been done is one of the things which the Legislature have prohibited.Now, my Lords, I need not repeat what has been already said by my noble and learned friend the Lord Chancellor, but in the present case it appears to me that in construing, as one must do, that clause, which is not easy of construction, the 50th section of the Licensing Act of 1872 , an order of removal never was contemplated by any of the parties to this case. It was not applied for; it was not intended to be granted by the licensing justices; and when one examines what they have done it amounts to the destruction of one licence and the continuance and enlargement of another. That is, to my mind, entirely opposed to what is the plain meaning of the statute in using the word “removal,” which signifies that a licence shall be transplanted from one set of premises and serve as a privilege and protection to another set of premises - it may be to a set of premises in a different licensing district. In those circumstances I do not think the respondents in this case were entitled to any remedy. I do not think that they have shewn facts requiring any remedy, and therefore I think it quite unnecessary to discuss in what form the remedy ought to have been granted if it had been required.
Watson	Kent CC v Lord Gerard edited	My Lords, the special case stated by the court of quarter sessions for the Eastern Division of the County of Kent submits for decision a single question of law arising upon the construction of s. 23 of the Highways and Locomotives (Amendment) Act 1878 . I have had little difficulty in arriving, with the rest of your Lordships, at the conclusion that the question ought to be answered in the affirmative.It must be assumed, as matter of fact, that extraordinary expenses to the amount of 750l. have been incurred by the appellants in the repair of the Faversham and Ashford main road, from its junction with the London and Dover main road at Faversham to the lodge-gate entrance to Eastwell Park, in consequence of the damage caused by reason of excessive weight passing along the same, and of extraordinary traffic thereon. The traffic in question, whether excessive in weight or extraordinary in the sense of its being beyond the ordinary requirements of the district, consisted of materials conveyed along the Faversham and Ashford main road, in locomotives or in wagons hauled by locomotive power, to Eastwell Park, where they were used in improvements executed upon his estate by the respondent, Lord Gerard. Sect. 23 enacts that the appellants may recover these extraordinary expenses, in a summary manner,“from any person by whose order such weight or traffic has been conducted.”The court of quarter sessions held that the respondent was not, within the meaning of the statute, a person by whose order the excessive weight or traffic which did damage to the road had been conducted. A Divisional Court, consisting of Cave and Wills JJ., quashed the order of the quarter sessions, and restored an order of the petty sessions, by which it had been adjudged that the respondent should pay to the appellants the said sum of 750l., with costs. In the Court of Appeal, the Master of the Rolls and Rigby L.J. (Lopes L.J. dissenting) reversed that judgment, and affirmed the finding of the quarter sessions.It now becomes necessary to notice those findings of fact in the special case, which tend to explain the connection which the respondent had with the traffic which has given rise to the appellants’ statutory claim. The substance of these findings admits of being shortly stated. The respondent contracted with several persons or firms for the delivery to him, at Eastwell Park, of the various materials required for his improvements, the price being payable by him, on the acceptance of such materials as were according to sample, and including all claims of the sellers for carriage to their destination or otherwise. The property in these materials did not pass to the respondent until they were examined and delivery accepted at Eastwell Park; and he neither employed, nor incurred any liability to, the carriers by whom they were conveyed to that destination. The respondent was aware that it was the intention of the parties who had undertaken to supply the materials to forward them by the Faversham and Ashford main road; but it has not been expressly found, and it does not appear to me to be matter of reasonable inference from any of the facts found, that the forwarding of the materials by that route was made a term of any contract for their supply so that the respondent could have declined to accept them if they were sent from another place than Faversham or by a different route. On the other hand, I think it clearly appears that the respondent had no right to interfere either with the goods themselves or with the persons by whom they were conveyed along the road which is under the jurisdiction of the appellants.The single point arising for decision in this appeal is whether in these circumstances the conveyance of the materials or their conduct along the appellants’ road was ordered by the respondent, within the meaning of s. 23. The words of the clause must be construed according to their ordinary signification, unless the context of the statute is sufficient to shew, in the first place, that some other meaning was intended, and, in the second place, what that other meaning was. Nor does it appear to me to be doubtful that in cases where the order is not said to have been given by the owner who is forwarding the goods, or by the person whom he has employed to carry them, but by the purchaser to whom the goods are to be delivered at the end of their transit, who, until they reach that point, has no interest in them, the latter cannot, in the ordinary sense of the words, be said to have ordered their conduct by a special route, unless he has interfered and given instructions to that effect which have been obeyed, or has made it part of his contract with the seller that the goods shall be forwarded by that route and no other. To construe the words otherwise would, in my opinion, be as unreasonable as to affirm that a person who ordered goods of a tradesman for acceptance on delivery had also given orders as to the route by which they were to be sent, if he happened to know the road to his house, which must be used, or was invariably used, by the tradesman’s cart.The learned Lord Justice, who formed the minority of the Appeal Court, appears to have arrived at a different result from his brethren of the majority, by reading the word “order” as it occurs in s. 23 as signifying, not an order given with respect to the conveyance of goods either to a contractor for their supply, or to his carrier, but the initial order given to the contractor which led to his sending the goods, and employing a servant or carrier to convey them. The Legislature is, no doubt, competent to enact such a provision; but it would be a novel rule to make a person who has contracted to purchase goods, if they are found according to sample, responsible for all orders given with respect to the conveyance of the goods before they are delivered to him if he happened to be aware that these orders would be given. With that matter the purchaser has really no concern. I am by no means satisfied that an enactment imposing liability upon the originator of the work for orders given by persons independent of him, in relation to the carriage of materials which they had undertaken to deliver, would be to the advantage of the road authority. One contractor for building materials or their carriage may be employed by fifty or a hundred different persons; and if he has actually ordered their transport by a particular road, he will be liable for all the damage done to the road if the traffic be excessive in the sense of the Act. But if the liability rested on his employers, each and all of them might escape on the ground that the amount of his carriages were not per se excessive or productive of damage. I entertain a strong objection to any canon of construction which introduces by implication into a statutory clause qualifying expressions which are not there, and alters the plain meaning of words which are to be found in it. I may add, that in my opinion the intention of the Legislature must be inferred from the language which it has used: and that whilst I have been unable to discover for myself, the appellants’ counsel did not attempt to direct my attention to, any context which gives a colour to the interpretation suggested by Lopes L.J.I therefore concur in the motion that the order of the Court of Appeal be affirmed with costs.
Watson	New York Breweries Co Ltd v Attorney General edited	My Lords, in my opinion the appellants in this case have not only taken possession of part of the estate of the deceased, but have proceeded to administer it. I think they have taken possession of it in this sense: that, having a share which belonged to the defunct in their hands for certain purposes, they did take possession of it for other purposes which were not legitimate, and for which they had no authority, and without the express sanction of the executors named after they had obtained letters of probate. The result of it is that, having taken that possession, they have used it for this purpose: for performing the first act of administration which executors having probate would have performed for themselves, with a view to, and as the first step towards, their administration.My Lords, I do not think that the 57th section of the Act 28 & 29 Vict. c. 104 , requires or prescribes that the persons, who are there described as “taking possession of and administering” the estate of a deceased, should, in order to bring them within the sweep of the clause, be persons who could, if they had chosen, have taken out probate in their own name. I do not think that is necessary. It may be that some of the persons who are within the purview of the clause are persons who might have taken out probate, but do not, within the period prescribed by the Act. If so, they are within the scope of these enactments; but they cannot remove themselves beyond the reach of these enactments by simply shewing that they are persons who are interfering without any legitimate title, and who could not have possessed themselves of a legitimate title.My Lords, the clause gives them a defence within a certain period if they have a title to take out probate. They are entirely without that defence if they act as executors without having that title. That is the position of the present appellants; and in my judgment the order of the Court of Appeal is in strict compliance with the Act, and ought to be affirmed.
Watson	Wells v Owners of the Gas Float Whitton No2 edited	My Lords, from a pecuniary point of view this case is a very small one; but it is of some importance in this respect, that it concerns the limits of Admiralty jurisdiction, and, in particular, the nature of those articles which can be properly made the subject of a claim of salvage attended with a maritime lien. It has the further merit of having been discussed and decided, with much legal learning, by no less than three Courts; and, in indicating the conclusion at which I have arrived, I do not find it necessary to refer in detail to the authorities, all of which are noticed in the judgments under review.I think it was rightly assumed in the Courts below that the law which must determine what are the proper subjects of maritime salvage is to be sought in the decisions and practice of the Admiralty Courts of England, and in the statutes which from time to time have been passed by the Legislature for the purpose, mainly, of protecting ships and cargoes and their wreck against depredation.The learned judge of the Yorkshire County Court, before which the action was originally brought, gave judgment for the appellants, the alleged salvors of the Gas Float Whitton No. 2, against its owners, the respondents, who are the Corporation of the Trinity House of Kingston-upon-Hull. His decision was based upon the ground that the Gas Float Whitton, when in ordinary use, was a vessel or ship, and had become a wreck within the meaning of the rule of maritime salvage; and, had I been able to acquiesce in that view, which found no favour with the judges, either of the Admiralty Divisional Court or of the Court of Appeal, I should have been of opinion that your Lordships ought to revert to the order of the county court.The reasons assigned for the judgment of the Divisional Court of Admiralty, consisting of the President of the Probate Division and Gorell Barnes J., were delivered by the President. Their Lordships affirmed the judgment appealed from, but on a new and different ground. In the Appeal Court, consisting of the Master of the Rolls, with Kay and Lopes L.JJ., the decisions of the Courts below were unanimously reversed, the opinion of the Court being delivered by Lord Esher M.R., with the concurrence of both Lords Justices.Shortly stated, the judgment of Lord Esher M.R. is to the effect that there are no proper subjects of a maritime claim for salvage other than vessels or ships used for the purpose of being navigated, and goods which at one time formed the cargoes of such vessels, whether found on board, or drifting on the ocean, or cast ashore. In that view the learned judges of the Admiralty Court concurred to this extent, that all these things are proper subjects of maritime salvage; but they held that the jurisdiction of the Admiralty is not limited so closely to a ship and her cargo “as to exclude a structure used in connection with navigation, and exposed in the ordinary course of its use to the perils of the sea.”Both these Courts were of opinion that Gas Float Whitton No. 2 was in no sense a vessel or a ship, and that it was not meant to be used, and in fact was not used, for the purpose of being navigated; and that it was in reality nothing more than a lighted buoy, moored in such a position as to give notice of danger, or to direct the course of navigable vessels. But, as already indicated, they differed as to the limit of the class of things which can be competently made the subjects of maritime salvage; with this result, that whilst the Admiralty Court allowed the appellants’ claim because the gas float, though not a ship, was of a nautical character and exposed to sea peril, the Court of Appeal reversed the decrees which they had obtained, and dismissed their suit.I am unable to concur in the view which was taken by the Court of first instance in regard to the true character of the Gas Float Whitton No. 2. It is used for purposes connected with navigation in the same sense as a lighthouse, or as a buoy, whether used as a beacon or for mooring a ship; but it appears to me to be wholly unfit for the purpose of being navigated as a vessel, and that it never was used, or intended to be used, for any such purpose. After considering all the authorities to which we were referred in the course of the able argument for the appellants, I am satisfied that the subjects of maritime salvage have been correctly defined in the clear and exhaustive judgment delivered by Lord Esher M.R. on behalf of the Court of Appeal. It was due to the great authority of the judges of the Admiralty Court that I should also consider the extension of the rule to that class of subjects which is explained in the opinion of the President, and was given effect to in their judgment. In that judgment the President does not refer to any cases or even dicta in support of the view which he suggests, and none were cited by counsel for the appellants. In the absence of definite authority upon the point, there does not appear to me to be any such analogy between the case of a ship destined for and engaged in navigation and a buoy, whether carrying a light or not, as would be sufficient to warrant the extension of the old and well-known maritime rule of salvage to articles of the latter description.I am therefore of opinion that the judgment appealed from ought to be affirmed.
Watson	Mess v Hay (Simes Trustee) edited	A twofold question is involved in the terms of the interlocutor appealed from: (1.) whether the appellant is a creditor of the bankrupt for the full amount which he claims; and (2.) whether the debt due to the appellant is, to any and what extent, a preferable charge upon the sequestrated estate? The second of these questions is the more important, and is the only one which was seriously argued at the Bar of the House.The judgments appealed from both affirm that the appellant is an ordinary creditor of the bankrupt for the sum of 775l. 11s. 4d., being the balance due upon his intromission with and management of the crop and stocking of the farm of Moncur, the expenditure of the appellant upon rent, taxes, and other necessary payments, being to that extent in excess of his receipts. The bankrupt was possessed of no heritable estate, with the exception of his interest in the lease of Moncur, which was not carried to or vested in the appellant by the trust deed of July 26, 1895. The whole movable estate of the bankrupt, including everything which had been conveyed by the trust deed, became absolutely vested by force of statute in the respondent from July 2, 1896, the date of the first deliverance in the sequestration, subject only to such right of security or preference as the appellant might be able to make good in the sequestration. The immediate effect of the sequestration was to revoke any authority which the appellant might derive from the trust deed, and he had no longer any power to act in the administration, either on behalf of the bankrupt or of his creditors. No reason has been averred or shewn why the appellant should, after that date, have employed and incurred expenses *240 to law agents; and in my opinion these expenses have been rightly disallowed by the Courts below.The question remains, whether the sum which has been found due to the appellant, as increased by any addition which may be made thereto by the Court, on considering the report of the accountant, to whom the matter of the appellant’s remuneration has been remitted, ought to form a first and preferable charge as claimed upon the whole estate and funds included in the sequestration. The appellant maintained that, at the date when the sequestration took effect, and his possession was superseded by the statutory title of the respondent, he had actual possession in security of his claims, and exclusive of any possession by the bankrupt, of the whole movable estate which has now passed to the respondent as trustee in the sequestration. That aspect of the case appears to have been chiefly pressed in argument before the Court of Session; and the judgments both of the Lord Ordinary and the Division went upon the ground that the appellant had not, in his record, stated facts and circumstances sufficient or relevant to infer that he had obtained such possession of the estate as would sustain a right in security. In this House, an alternative plea, said to be equitable, was argued on behalf of the appellant, and will be noticed hereafter.It is not matter of controversy that, by the law of Scotland, in order to constitute a valid pledge of movables, there must be delivery of them to the pledgee, to the effect of vesting him with possession independent of the possession or control of the pledgor. Their joint possession will not suffice to create a right of security in the pledgee. There may be cases in which, so far as pleading is concerned, it is sufficient to allege possession in general terms; but there are others in which it is essential to a relevant averment of the pledgee’s possession to set forth facts and circumstances from which his exclusive possession is matter of natural or necessary inference. When the movables forming, or intended to form, the subject of the security are stored in the premises of the pledgor, a simple averment of possession by the pledgee would be insufficient; but an allegation that these goods had been placed in a particular room, or *241 chamber, that the door had then been locked, and the key delivered to the pledgee, so as to give him the exclusive custody and control of them, would be equivalent to an assertion of actual possession, and would be admitted to probation.The appellant on record (statement 3) alleges, in general terms, that he “accepted the trust created by the said trust deed and commission, and in virtue thereof immediately entered into the possession and management of the whole estates and effects of the said Alexander Sime, and continued to possess and manage the same down to the sequestration of the estates of the said Alexander Sime as before mentioned.” He explains, with some minuteness in statement 5, his various acts in the cultivation and management of the farm of Moncur, and the payments made by him on account of rent and other charges; but these averments throw no light upon the character of his possession, if any, of the growing crops, stocking, and other articles which passed to the respondent as trustee under Sime’s sequestration.There are many circumstances in this case which, in my opinion, required that additional information should have been given by the appellant, if consistent with fact, in order to disclose exclusive possession by him of such a character as to raise a real right of security. It is not disputed that during the whole period of the appellant’s management Alexander Sime, in compliance with the terms of his lease, remained in the personal occupation of the lands and steading which constituted his farm, and at the date of his sequestration the whole crops of the year 1896 were partes soli. It is idle to speculate by what possible devices, if any, exclusive possession, such as the law of Scotland requires, could have been transferred to a gentleman resident in Dundee, of furniture in the house at Moncur occupied by the bankrupt, of horses, cattle, or implements in his steading or on the farm, or of crops which were actually growing upon the land which was occupied by the bankrupt. There is no averment that any such devices were resorted to for the purpose of vesting the appellant with the exclusive possession of one or other of these things.The position which the appellant held as factor for the *242 bankrupt gave him ample authority to deal with the crops and stocking in the manner he alleges so long as his commission lasted, but did not give him any possession, exclusive of the bankrupt, which could sustain a right of security. Whether upon his receipt of money realized by the sale of crops or stocking, the appellant became entitled to retain it until he was relieved of advances made by him to pay rent and other charges, is a question which does not arise in the circumstances of this case, and need not, therefore, be discussed.For the reasons indicated, I am of opinion, with the Lord Ordinary and the majority of the learned judges of the Second Division, that the averments made by the appellant in support of his claim, upon the ground that he held at the date of the sequestration a real security over the sequestrated effects, are not relevant.The only point which remains to be considered is the second and alternative claim presented for the appellant, which was confined to the crops of the farm of Moncur for the year 1896, these constituting the greater part of the estate falling under the sequestration. The claim is formulated in the appellant’s second plea in law, to the effect that, “The appellant having paid all expenditure connected with the crop of 1896, and cultivated and sown the same, is entitled to be recouped out of and from the proceeds of the said crop.” The plea was rested, in the argument for the appellant, upon the doctrine of recompense, which is an intelligible principle of Scottish law, although, in my opinion, it is not applicable to the circumstances of the present case, and also upon the ground that the appellant was in equity entitled to recover as a charge upon the proceeds of the crop of 1896 his outlays for seed and labour. Assuming that the appellant under his contract of management with the bankrupt had not sufficient possession to support a right in security, in which case only the alternative plea is necessary, his legal claim was for a simple contract debt, due to him by his constituent, the bankrupt. To that extent his claim has been sustained. It is of no materiality that he may, as he alleges, have erroneously supposed that he had a right which, in reality, he never possessed. I am unable to conceive upon *243 what principle the insolvency of his constituent should enlarge his right, and give him a preference in competition with other creditors.I am, therefore, of opinion that the interlocutors appealed from ought to be affirmed, and the appeal dismissed with costs. The case must be remitted to the Court of Session in order that the amount of the appellant’s remuneration may be fixed, and the expenses of process, prior to December 14, 1897, disposed of.
Watson	San Paulo (Brazilian) Railway Co Ltd v Carter (Surveyor of Taxes) edited 	My Lords, the decision of this appeal does not involve any new controversy upon the construction of the Income Tax Acts. It depends, in my opinion, upon the answer which ought to be given to a single issue of fact.The law which must govern the present case appears to me to be settled by the judgment of this House in Colquhoun v. Brooks . 18 It was held in that case that the interest of a partner, resident in England, in the profits of a trade which was exclusively carried on in Australia by the other members of the firm, was chargeable with income tax, not under the First, but under the Fifth Case of Sched. D. The noble and learned Lords who took part in the decision were of opinion that the interest of the English partner was included in the sweeping language of the First Case; but they held that it also constituted, within the meaning of the Fifth Case, a possession in one of Her Majesty’s dominions out of the United Kingdom. The ground upon which the interest was held to be taxable in terms of the Fifth Case was, that the Income Tax Acts contain no machinery for assessing, under the First Case, profits accruing from any trade which is not wholly or in part carried on within the United Kingdom, whereas they do provide machinery for assessing, under the Fifth Case, profits arising from trade exclusively carried on outside of the United Kingdom.In my opinion, the decision in Colquhoun v. Brooks19 directly affirms the rule that every interest in the profits of trade, belonging to a person who is, within the meaning of the Acts, resident in the United Kingdom, must be charged under the First Case of Sched. D. if the trade is carried on, either wholly or partly, within Great Britain or Ireland, and is chargeable under the Fifth Case, if the trade is exclusively carried on in any of Her Majesty’s dominions out of the United Kingdom. The considerations which are applicable to trades wholly carried on in these dominions apply with equal force to trades exclusively carried on in foreign possessions which are not subject to the British Crown; and it appears to me to be a matter of necessary implication that the interest of a resident here in profits derived from a trade of the latter description must also be assessed for income tax under the Fifth Case of Sched. D.When it has been ascertained that a person interested in the profits of a trade has his residence in the United Kingdom, in such sense as to bring him within the incidence of the Income Tax Acts, the only question remaining for consideration is, whether the measure of his liability is to be found in the First or in the Fifth Case of Sched. D; in the one case, he is liable to pay duty in respect of the net profits accruing to him from such trade; in the other, in respect only of such part of these profits as shall have been actually received by him in this country. But he cannot, according to the rule established in Colquhoun v. Brooks20 , escape from liability under the First Case, unless he is able to shew that no part of the trade is carried on within the United Kingdom, or, what comes to precisely the same thing, that the trade is exclusively carried on in a country or countries outside the United Kingdom, whether subject to Her Majesty or not. If he succeeds in proving that fact, his liability will be under the Fifth Case.The appellant is an English company, incorporated with limited liability under British statutes, and having its registered office in London. It is not disputed that the company has its domicil in England, and is liable to pay income tax in respect of any profits earned in the course of its trade. The only complaint made is, that the amount of such profits has been assessed for duty under the First Case, whereas the appellant maintains that it ought to have been assessed under the Fifth Case, because the trade of the company is wholly carried on beyond the limits of the United Kingdom. I have had no difficulty in rejecting that contention. It is not necessary to consider whether the whole trade of the company ought to be regarded as carried on in England. To my mind, it is perfectly clear that, in point of fact, part of its trade is carried on there, and that is sufficient to bring its profits within the First Case of Sched. D.It is no doubt true that the undertaking, in order to carry on which the company was incorporated, consists, as its memorandum bears, in “the making, maintaining, managing, and working” of a railway in Brazil, and in “the making, maintaining, managing, and working” of branch lines, roads, canals, and other means of communication in connection with the main line. It is also true that the directors, as authorized by the articles of association, manage and work the railway and its connections through a superintendent in Brazil appointed by them, and a staff of servants in Brazil who are under his immediate supervision; and that the receipts of the company from which profits made by it are derived are earned and paid in Brazil. But the substantial fact remains, that the directors, subject to any resolutions which may be passed for their guidance by the members of the company, are vested with the sole right to manage and control every department of its affairs. Apart from the authority, express or implied, which they have from the directors, neither the superintendent nor any other servant of the company has any power to act in the carrying on of its trade. They are in no sense traders; they are merely servants, and in that capacity are remunerated for the services which they are employed to perform. The profits of the undertaking, although they are received by these servants, do not belong to them, and are not in their disposal, their only duty, unless otherwise directed by the company, being to transmit them to London; and the company here is the sole judge whether they ought or ought not to be distributed among its members. The only persons who can with propriety be described as carrying on the trade of the company, are its directors, who, for all purposes of administration and management, are the company itself. I do not think that, in such circumstances, the particular localities in which debts are incurred to the company, or are paid to its agents, are of any consequence in ascertaining by whom its trade is carried on.I therefore concur in the judgment which has been moved.
Watson	White v Mellin	My Lords, the ground of this action is slander, not of the plaintiff himself, in his personal or business capacity, but of an article of food which he manufactures and sells as “Mellin’s Infants’ Food.” The defendant, who is a chemist, sells the plaintiff’s food at his establishments in Portsmouth and its neighbourhood. He also sells another food, in which he has a proprietary interest, which is known as “Dr. Vance’s Prepared Food for Infants or Invalids.”The alleged slander is contained in a label, notice or advertisement used by the defendant, by which “The public are recommended to try Dr. Vance’s Prepared Food for Infants or Invalids, it being far more nutritious and healthful than any preparation yet offered.” In his statement of claim, the plaintiff avers that the defendant was in the habit of affixing that label to the wrappers in which “Mellin’s Infants’ Food” is made up for sale. The defendant admits that he affixed the label to various articles sold by him, and in some cases to the wrappers in which the plaintiff’s food is sold, care being always taken that the printed or written matter on the wrappers should not be interfered with or rendered illegible. Beyond that admission there is no evidence bearing on the point.The wrong complained of being the slander of goods, the fact that the representations made by the defendant in the label already referred to might be calculated to disparage the food manufactured by the plaintiff and to interfere with its sale can afford no cause of action. Every extravagant phrase used by a tradesman in commendation of his own goods may be an implied disparagement of the goods of all others in the same trade; it may attract customers to him and diminish the business of others who sell as good and even better articles at the same price; but that is a disparagement of which the law takes no cognizance. In order to constitute disparagement which is, in the sense of law, injurious, it must be shewn that the defendant’s representations were made of and concerning the plaintiff’s goods; that they were in disparagement of his goods and untrue; and that they have occasioned special damage to the plaintiff. Unless each and all of these three things be established, it must be held that the defendant has acted within his rights and that the plaintiff has not suffered any legal injuria.It is true that in the present case the plaintiff, who does not aver that he has sustained any special damage, only claims an injunction. That circumstance cannot make any difference in his favour. Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second. The onus resting upon a plaintiff who asks an injunction, and does not say that he has as yet suffered any special damage, is if anything the heavier, because it is incumbent upon him to satisfy the Court that such damage will necessarily be occasioned to him in the future.Having examined the plaintiff’s evidence, and having also heard all that could possibly be said for it from Mr. Moulton, I must confess my inability to appreciate the reasons which induced the learned judges of the Appeal Court to disapprove of the course which had been taken by Romer J. It is not suggested that the plaintiff had not ample opportunity of leading all the proof which he desired. The evidence which he did adduce appears to me to fail upon every point which was essentially necessary to his success in the action.In the first place, I do not think the representation conveyed by the defendant’s label is, in any legal sense, a representation of and concerning the infants’ food of the plaintiff. It is a highly coloured laudation of Dr. Vance’s food and nothing else. It makes no reference to the plaintiff’s goods beyond what might be implied in the case of every other kind of food which is recommended and sold as being suitable for consumption by infant children. Nor, in my opinion, is the circumstance that the label was sometimes put upon the plaintiff’s wrappers, however distressing it might be to him, sufficient to convert it into a disparagement of the contents of the wrapper. An advertisement in the window of a bootmaker, to the effect that he makes the best boots in the world, may be more offensive to his next neighbour in the same trade than to a bootmaker at a distance; but the disparagement in kind and degree is identical in both cases.In the second place, assuming that the representation did refer to the plaintiff’s food, I am of opinion that his evidence does not prove it to be untrue. At the best, the evidence comes to no more than this, that the plaintiff’s food is the more suitable for children under six months old who cannot get their mother’s milk; and that Dr. Vance’s food is the more suitable for children above that age who are not the victims of indigestion. In these circumstances it appears to me to be difficult to hold that it was not open to either of the parties to say that his was the best food for infants without conveying a false imputation upon the food of the other.In the third and last place, I am of opinion that, even if the plaintiff had proved that the representation concerned his food and was wilfully false, his evidence discloses no cause of action. There is not in the whole of it an attempt to prove that the plaintiff has suffered in the past or is likely to suffer in the future any damage whatever through the representations of which he complains.I therefore agree that the order of the Court of Appeal ought to be reversed, and the judgment of Romer J. restored.
Watson	Bradford Corp v Pickles edited 	My Lords, it is clear that, apart from any privilege which may have been conferred upon them by statute, the respondent, as in a question with the appellants, has a legal right to divert or impound the water percolating beneath the surface of his land, so as to prevent its reaching Trooper Farm, and feeding, or assisting to feed, the Many Wells Spring or the stream flowing from the Watering Spot. Upon that point there can be no doubt since Chasemore v. Richards 10 was decided by this House in the year 1859. But the appellants pleaded at your Lordships’ Bar, as they did in both Courts below, that the principle of Chasemore v. Richards 11 is inapplicable to the present case, because, in the first place, the operations contemplated and commenced by the respondent are by statute expressly prohibited; and, in the second place, these operations were designed and partly carried out by the respondent, not with the honest intention of improving the value of his land or minerals, but with the sole object of doing injury to their undertaking.The statutory provisions upon which the appellants rely as supporting the first of these pleas are to be found in sect. 234 of the Act of 1842, and in sect. 49 of the Act of 1854, which is a mere repetition of the previous enactment. The clause relates to the Many Wells Springs, an expression which, as the context shews, includes the stream coming from the Watering Spot. It contains two separate enactments, the one of them prohibitory and the other penal. First of all, it declares that it shall not be lawful“for any person other than the said company to divert, alter, or appropriate, in any other manner than by law they may be legally entitled,” any of the waters “supplying or flowing from” these springs, or to sink any well or pit, or to do any act, matter, or thing whereby “the waters of the said springs” may be drawn off or diminished in quantity. That declaration is followed by the provision that “if any person shall illegally divert, alter, or appropriate the said waters, or any part thereof, or sink any such well or pit, or shall do any such act, matter, or thing whereby the said waters shall be drawn off or diminished in quantity,” and shall not on being required to do so by the company, immediately restore the springs and waters to the same condition in which they were before the illegal act, they shall be liable to pay five pounds to the company for each day until restoration is made, besides compensating the company for any damage sustained through their illegal act.The appellants endeavoured to construe the prohibitory clause as effecting a virtual confiscation in their favour of all water rights in or connected with the respondent’s land lying to the vest of Trooper Farm. It appears to me to be exceedingly improbable that the Legislature should have intended to deprive a landowner of part of his property for the benefit of a commercial company without any provision for compensating him for his loss. But it is not necessary to rely upon probabilities, because, in my opinion, the language of the clause is incapable of bearing such an interpretation. I think the plain object of the statutory prohibition, which has two distinct branches, was to give protection to the supply of water which had been acquired by or belonged to the company for the time being; and that it was not meant to forbid, and does not prevent, any legitimate use made by a neighbouring proprietor of water running upon or percolating below his land before it reached the company’s supply and became part of their undertaking.The first branch makes it unlawful for any person other than the company to divert, alter, or appropriate any of the “waters now supplying” the Many Wells Springs, which appear to include sources of supply existing upon lands adjacent to Trooper Farm. Had the prohibition been absolute, it would have struck against the operations of the respondent; but it is subject to the qualification that the respondent, or any landowner similarly situated, may lawfully divert those waters which ultimately feed the Many Wells Springs, so long as he does so in any manuer which is not in excess of his common law rights. The respondent’s operations, of which the appellants complain, are within his proprietary right, and are therefore not obnoxious to that part of the prohibition. The second branch, which prohibits the sinking of wells and other operations, has, in my opinion, no reference to outside waters more or less distant which might ultimately find their way to the Many Wells Springs. It relates to “the waters of the said springs” - an expression which can only denote the waters which have actually reached the Many Wells Springs, or some channel or reservoir which has been prepared for their reception upon their issuing from these springs. The prohibition gives effective protection against the withdrawal or diminution, either by an adjacent proprietor or any other person, of waters which have come within the dominion of the appellants. But it does not prevent the diversion or impounding by an adjacent proprietor of water in his own land which has never reached that point, so long as his operations are such as the law permits. For these reasons, in so far as concerns the. first plea urged for the appellants, I concur in the judgment of the Court of Appeal.The second plea argued by the appellants, which was rejected by both Courts below, was founded upon the text of the Roman law (Dig. lib. 39, tit. 3, art. 1, s. 12), and also, somewhat to my surprise, upon the law of Scotland. I venture to doubt whether the doctrine of Marcellus would assist the appellants’ contention in this case; but it is unnecessary to consider the point, because the noble and learned Lords who took part in the decision of Chasemore v. Richards 12 held that the doctrine had no place in the law of England.I desire, however, to say that I cannot assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Richards . 13 The noble and learned lord appears to have accepted a passage in Mr. Bell’s Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. I am aware that the phrase “in aemulationem vicini” was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour. In cases of nuisance a degree of indulgence has been extended to certain operations, such as burning limestone, which in law are regarded as necessary evils. If a landowner proceeded to burn limestone close to his march so as to cause annoyance to his neighbour, there being other places on his property where he could conduct the operation with equal or greater convenience to himself and without giving cause of offence, the Court would probably grant an interdict. But the principle of aemulatio has never been carried further. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious.I therefore concur in the judgment which has been moved by the Lord Chancellor. 
Watson	North Cheshire and Manchester Brewery Co Ltd v Manchester Brewery Co Ltd edited 	 My Lords, in this case the appellant company is starting a new concern, and they have adopted for their title and have registered a name under which they propose to trade which incorporates with other titles the name of the respondent company.This action arises before there is any room for testing by evidence whether or not the procedure of the appellants will necessarily lead to the results which are apprehended by the respondent company. I do not think it necessary on a question of injunction to inquire into that matter. What appears to me to be perfectly plain is this - that in the meantime the respondent company are exposed to every possible inconvenience which can arise to their trade from the fact of a rival company starting afresh in the same trade in the same locality, and under substantially the same name with themselves. I think the appellant company, although I free them from any imputation of a fraudulent intent, have acted in a way which is to the possible if not probable detriment of their neighbours, and in a manner that is in law unjustifiable. They have trenched upon the private rights of their neighbours, and I think that the Court of Appeal have done right in recalling the judgment of Byrne J., and in granting an injunction in the terms craved. 
Watson	Hanfstaengl v HR Baines And Co Ltd edited	My Lords, the appellant has acquired the copyright of four pictures by foreign artists, entitled “First Love,” or “Courtship,” “Loves me, loves me not,” “Charity,” and “Pets,” which he has reproduced and sold in this country as engravings or photographs; and he complains in this action that the respondents have published in the Daily Graphic certain sketches which he alleges to be copies or colourable imitations of these copyright works.In both Courts below it was matter of controversy whether, under Her Majesty’s Order in Council of the 28th of November 1887, the appellant can claim the full privileges conferred by the Act 25 & 26 Vict. c. 68 . The learned judges of the Appeal Court did not decide the point. They dealt with the case upon the assumption that the appellant was entitled to all the protection which is afforded by the Act, and they refused to grant an injunction, on the ground that none of the sketches complained of constituted an invasion of his copyright. The argument addressed to this House proceeded upon the same assumption; and I understand all your Lordships to be of opinion that the decision of the Court of Appeal is right.The only question which your Lordships have found it necessary to determine appears to me to be mainly one of fact. It is, no doubt, necessary to ascertain the import of the statutory prohibition before considering whether it has been contravened; and so far legal construction may be involved. But the ascertainment of the statutory rule is, in my opinion, a very simple matter in comparison with the task of determining, in some cases, whether, in point of fact, one picture or drawing is a colourable copy, or represents the design of another.Sect. 1 of the Act of 1862 gives to the author of an original painting, drawing, and photograph, and his assigns, the sole and exclusive right of “copying, engraving, reproducing and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size,” for the term of his natural life, and for seven years after his death. For the protection of the right thus conferred, sect. 6 enacts penalties against any person who, bot being the proprietor for the time being of “copyright in any painting, drawing, or photograph,” shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply “any such work, or the design thereof.” It will be noticed that the language of the statute expressly forbids, not only copies and colourable imitations of the copyright work, but all reproductions of the design of such work. I do not doubt that the addition of the words relating to design was intended by the Legislature to reach invasions of copyright which might possibly escape the imputation of being copies or colourable imitations of the work itself, and yet appropriated and incorporated the substance of what is described as the design of the work.The possibility of laying down any canon which will afford in every case a useful test of what constitutes a copy or colourable imitation of the work or its design is, in my opinion, very doubtful. At all events, it is much easier to arrive at what does not than to define what does constitute a proper test. Thus, it is clear that the statute does not exempt copies or imitations which do not reproduce the artistic or inartistic qualities of the original. A slavish copy of a picture or drawing may be utterly wanting in the artistic merit exhibited by the original; and a copy, by an eminent hand, may display merits which the original does not possess. But the one is as much prohibited as the other.The language of Bayley J. in West v. Francis 8 comes nearer to a definition of what constitutes copying than anything which is to be found in the books. It runs thus: “A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.” The learned judge was construing, for the purposes of the case before him, the provisions of 17 Geo. 3, c. 57 , which differ in expression from the enactments of 25 & 26 Vict. c. 68 , and contain no reference to reproducing the design of the protected work. As I read the later statute with which we have to deal in this case, the idea created by a picture or drawing does not necessarily form an element in the original work, or its design, which is protected by copyright. The same idea which is suggested by the copyright work may be expressed by another painting or drawing which is in no sense a copy, and does not borrow its design. To take, by way of illustration, the appellant’s picture of “First Love,” or his photograph of it which was chiefly relied on, as shewing, when compared with the respondents’ sketch, an invasion of copyright, the idea conveyed by his copyright picture and its photograph is simply love-making (why it should be “first love” is not very apparent), and the medium selected for its conveyance is a representation of two figures, male and female, standing in close proximity to each other, and to a rustic stile. It can hardly be seriously maintained that no other artist is at liberty, without the appellant’s leave, to suggest the same sentimental idea, by grouping together, in the neighbourhood of a stile, two individuals of opposite sexes having no resemblance either in personality, dress, or attitude to the loving pair who are the chief feature of the appellant’s photograph.In all cases where the alleged invasion is not a mere copy, the statute makes it imperative to consider how far there is identity of design. But the design which the Legislature had in contemplation is, to my mind, a very different thing from the idea created by the copyright work. So far as I can judge, the expression “design,” as it is used in the statute, means nothing more than the particular forms and arrangements (whether of lines or colouring) which the copyright author has selected as the vehicle for conveying his idea to those who see his work. There may very well be - I can see no reason to doubt that there are - cases in which his design, and the idea to which it gives birth, are both of them so novel and exceptional that it would be difficult, if not impossible, for another author to create the same idea without trenching upon his design. When that occurs, Bayley J.’s definition might come very near to the mark. But in cases where copyright is claimed for pictures or drawings which treat an old and common subject, such as lovemaking beside a stile, the privilege of the author must, in my opinion, be strictly confined to the particular design which he has chosen.I refrain from applying these observations to the facts of the present case, because I accept without reservation the comments which have already been made by the Lord Chancellor.The respondents relied, to some extent, in their argument upon the fact that their sketches were not taken from the appellant’s copyright works, but from scenes represented by living actors, and that they were merely intended to inform the public of what might be seen at the Empire Theatre. I agree with Lindley L.J. that the circumstance is one of the facts of the case which ought to be taken into consideration. It clearly evidences that the respondents had not the animus furandi. At the same time, I am of opinion that it would not be available as a defence to the present action if it were shewn that their sketches, intended to represent Living Pictures, were de facto either copies of the appellant’s copyright works or embodiments of their design. Having, however, come to the conclusion that these sketches are not copies, and do not reproduce the design of the works in question, I concur in the judgment which has been proposed. 
Watson	Hope v Hopes Trustees edited 	Whether the averments made by the pursuers in support of their action would, if proved or admitted, be sufficient to entitle them to decree, is the only question raised in this appeal.The action is brought by the heir-at-law and next of kin of a gentleman deceased for the purpose of setting aside three deeds, one of them inter vivos , and the others testamentary, by which he conveyed the bulk of his large estate, heritable and moveable, to trustees, to be held by them for the promotion of certain charitable or benevolent objects. Shortly stated, these objects were total abstinence from the use of alcoholic or fermented liquors, or of tobacco or opium, the dissemination of the true doctrines of the Protestant religion, the inculcation of the danger arising to civil and religious liberty from the doctrines of the Church of Rome, the promotion of Sabbath observance, of Church and State connection, and of the union of all Christian Churches on the basis of a united established Church.One main peculiarity of the case presented by the pursuers in their condescendence, and in their answers to the separate statement of facts for the  defenders, consists in this—that, whilst alleging that the deceased was eccentric, they do not dispute that during his life, which was prolonged until the age of eighty-six, he carried on a successful business as a Writer to the Signet, took for many years an active part in municipal affairs, and for forty years before his death freely spent both his time and his money in promoting those objects to which he has directed that his estate shall be applied.The material averments relating to the alleged incapacity of the deceased to execute the deeds under challenge are to be found in the eighth article of the condescendence. With reference to “matters connected with temperance and total abstinence and with the Church of Rome,” it is there stated that “upon both the said topics he” (that is, the testator) “was subject to insane delusions. He believed that he had a special and imperative duty to further the cause of total abstinence and to oppose the Church of Rome by devoting his pecuniary resources to these objects, in consequence of commands which he had received from the Deity by direct communication upon various occasions. These insane delusions dominated his mind and overmastered his judgment to such an extent as to render him incapable of making a reasonable and proper settlement of his means and estate, or of taking a rational view of the matters to be considered in making a will.”I do not think that any lawyer would dispute the proposition that a testamentary disposition cannot receive effect if it be shewn that its provisions were prompted by an insane delusion or delusions existing in the mind of the testator. In my opinion the late very able and learned head of the Court of Session (Lord President Inglis) stated the law with perfect accuracy in the case of Morrison v. Maclean’s Trustees , 1 where he directed the jury thus: “Sometimes a writing of this kind” (referring to a testament), “although expressed in perfectly intelligible language, although it may express apparently a rational and even laudable purpose, and although the writer may understand its legal consequences and effects, may still be the production of insanity, and may appear upon its very face to be so. Supposing that he were to set out upon the face of this testament that he does make this disposition of his property because he believes something to be the case which no sane man could believe; suppose he were to tell you that he makes this disposition of his property because he has received a direct revelation from Heaven, that it is his duty to do it, it would be quite a different case. Then upon the face of the deed itself there would be enough to condemn it. But certainly, in so far as this writing is concerned, there is no delusion apparent in the deed, and the man who wrote it—it being his own act, unaided by anybody else so far as I can see—must be held to have been mentally capable of conceiving the purpose, of expressing it in distinct language, and of foreseeing and understanding its legal consequences and effects. But, gentlemen, still further, although the deed itself may be of this character, and may prove his mental capacity so far, and may not disclose any insane belief or delusion as the spring of his action or the motive of his conduct, such may nevertheless exist; and if the pursuer has proved to your satisfaction that the testator was suffering under delusions which led him to execute this deed to the detriment of his own relatives, and so to cut off his natural succession, he may still prevail; because a man may he labouring under the most insane delusion and yet have mental capacity to do what shall, upon the face of it, appear to be a perfectly sane thing, actuated thereto by the insane delusion.”The words which I have already quoted from Art. 8 of the condescendence appear to me to contain a substantial averment that the deceased believed that he had on various occasions received a direct command from Heaven to devote his means to the furtherance of total abstinence and exposing the errors of the Church of Rome. I think that that is the true meaning of the words used, according to their primary and natural significance, and that they cannot, without resorting to a strained and figurative construction, be read as merely conveying the allegation that the deceased believed that, according to the dictates of his conscience, it was his duty to devote his means to these objects. Had the averments amounted to no more than that which I have last expressed, they would not in my opinion have been relevant. I do not think, and I protest against the assumption, that, in Scottish cases of relevancy the extremely technical rules of construction which were sometimes applied by the Law Courts of England in cases on demurrer ought to be followed. I concede that in cases where there is an alternative averment of fact, relevancy must depend upon the weaker alternative—the only one which the pursuer absolutely offers to prove; but, in my opinion, averments which are not alternative are sufficient for relevancy if, according to their primary meaning, they are sufficient to support the conclusions of the action. In that view I think the averments of Art. 8 are sufficient to entitle the pursuers to inquiry, and it is not inconsistent with that opinion that Lord President Inglis employed substantially the same language for the purpose of explaining to a jury what was sufficient to constitute an insane delusion.In this case it appears to me that a substantial issue is raised by the appellants’ averment that the motives of the testator were due to insane delusions. The answer to be given to that issue, whether affirmative or negative, will depend upon the inference to be derived from a consideration of the evidence. I do not think that the appellants’ right to lead evidence is necessarily excluded by the circumstance that such inference may possibly be negative.
Watson	Glasgow Corp v Glasgow Tramway And Omnibus Co Ltd edited	The appellant corporation, having obtained statutory authority to construct tramways upon the streets of the city of Glasgow, entered, in May, 1871, into an agreement with the promoters of the respondent company, which was then in course of formation, by which the corporation undertook, upon the terms and conditions therein specified, to construct certain tramways upon the streets of the city, and thereafter to grant a lease of the said tramways to the company for the period of twenty-three years. The corporation proceeded to construct the tramways, and on their completion effect was given to the agreement by embodying its stipulations in a contract of lease between the parties, which was duly executed by the corporation and by the company upon the 16th and 17th days of November, 1871. By the lease the corporation demised to the company “the sole right to use for the sole purposes of the Glasgow Street Tramways Act, 1870 , carriages with flange wheels, or other wheels specially adapted to run on a grooved rail, on the whole tramways authorized to be formed by the said Act, and that for the space of twenty-three years from and after the 1st day of July, 1871.”The tenure of the respondent company being for a period exceeding twenty-one years, the assessor, following the provisions of s. 6 of the Valuation Act, 1854 , entered their name in the current valuation rolls as “proprietors,” with the result that the company became primarily liable to pay, and regularly paid, the assessments yearly levied in respect of the tramways, whether for imperial or for local purposes, during the whole term of the lease, which expired in July, 1894. Sect. 6 provides that a tenant whose name has been so entered “shall be entitled to relief from the actual proprietor thereof, and to deduction from the rent payable by him to such actual proprietor, of such proportion of all assessments laid upon the valuation of such lands and heritages made under this Act, and payable by such lessee as proprietor in the sense of this Act, as shall correspond to the rent payable by such lessee to such actual proprietor as compared with the amount of such valuation.” During the currency of their lease, the company, although they intimated a claim against the corporation, did not make any deduction from the rents which they paid to the corporation in compliance with the conditions of the lease.This action was brought in January, 1896, and the first, and the only, conclusion of the summons to which the present appeal relates is for payment by the corporation to the company of the sum of 14,246l. 5s. 0½d. sterling, or of such other sum as may be ascertained to be the amount of owners’ assessment, rates, and taxes, whether local or imperial, paid by the company for the period between July 1, 1871, and July 1, 1894, in respect of the tramways leased to them, or the proportion of such payments of which the corporation were bound to relieve them. In defence to that conclusion, the corporation pleaded (1.) that, by the conditions of the lease, the respondent company were bound to free and relieve them of those assessments; (2.) that, upon a sound construction of s. 6 of the Valuation Act , the only right of recovery given to the company as tenants was by deducting the amount of such assessment from the rent payable by them to the corporation under the lease—a remedy which the company had failed to pursue, and had therefore lost; and (3.) that assuming the company to have had, under s. 6 of the Act of 1854, the alternative remedy of recovering these assessments by legal process, their claim was, in the circumstances of the case, barred by taciturnity and mora. If any one of these three pleas in defence be sustained, the claims for relief made by the company must necessarily fail.After a proof had been led, the Lord Ordinary (Kyllachy) on December 2, 1896, found that the corporation were bound to relieve the company of the owners’ assessments, rates, and  taxes, whether local or imperial, paid by them in respect of the tramways during the period from July 1, 1871, to July 1, 1894. He made various subordinate findings bearing upon the proportion of assessments chargeable to the corporation; and seeing that further inquiry was necessary upon one point, he directed the cause to be enrolled for further procedure. His Interlocutor was, on March 4, 1897, affirmed simpliciter by the First Division of the Court. 9The first plea urged in defence by the corporation depends upon the just construction of a single sentence in the 2nd article of the lease of November, 1871. That clause enumerates various payments which are to be made by the lessees to the lessors, and then proceeds thus: “And the company shall also pay to the corporation the expenses of borrowing, management, &c., and this provision shall be so construed as to keep the corporation free from all expenses whatever in connection with the said tramways.” The question, therefore, comes to be whether the proportion of assessments payable by the corporation as owners of the tramways under s. 6 of the Valuation Act are expenses of the corporation “in connection with the said tramways,” within the meaning of the 2nd article, and are therefore within the respondent company’s obligation of indemnity.In my opinion, the conditions of the 2nd article which I have just quoted ought to be construed in connection with the whole stipulations of the lease, in so far as these relate to the considerations passing between the corporation and the company. Viewed in that light, the general scheme of the lease is that the obligation of constructing the tramways was to rest upon the corporation, it being in the contemplation of both parties that the corporation was to raise money for that purpose by borrowing upon its own credit. On the other hand, the company (art. 6) undertook the whole cost of maintenance and repair during the period of their tenure; they (art. 3) agreed to pay half-yearly 3 per cent. per annum on the gross sum from time to time expended by the corporation on capital account, which percentages were to form a sinking fund to be applied “ultimately” by the corporation towards the reduction or extinction of the cost of constructing the tramways; by the first part of art. 2 the company agreed to pay half-yearly during the term of their lease the whole interest falling due upon the money from time to time borrowed by the corporation on capital account; by the second part of the same article they agreed to pay interest on the expenses incurred by the corporation and by the Board of Police in obtaining statutory power of construction in the year 1870, or incident to the execution of the lease, it being declared that the obligation of the company for the payment of such interest was not to be effected by any payment made to the corporation through the medium of the sinking fund.The substance of the scheme, as embodied in these stipulations, appears to me to have been that no pecuniary obligation was to attach to the corporation beyond that of borrowing funds in order to pay for the construction of the tramways; and that the company during the currency of their right were to relieve the corporation of all other outlays connected with or incident to the performance of their obligation to construct, or incident to their position as proprietors of that which they had constructed. I have had no difficulty in coming to the conclusion that payment of assessments, whether imperial or local, levied from the owner in respect of a tramway or other erection in solo is an expense connected with such tramway or erection. But for the construction of the tramway no such liability would have arisen.I am, for these reasons, of opinion that the first plea is well founded, and that the company are suing for a sum of which they were bound by their lease to relieve the corporation. In that view it is neither expedient nor necessary to express any opinion with regard to the other pleas maintained in defence by the corporation. I think that, in so far as they relate to the first conclusion of the summons, the interlocutors of December 2, 1896, and March 14, 1897, ought to be reversed, and the corporation assoilzied from that conclusion. I also think that the interlocutors of March 14 and March 20, 1897, in so far as they relate to expenses of process, ought to be reversed; and that the appellant corporation ought to have the expenses incurred by them before the Court of Session, and their costs of this appeal.
Watson	Carruthers v Carruthers edited	My Lords, I agree in the judgment which has just been moved by my noble and learned friend.I am not altogether satisfied in this case that what was done or left undone by the trustees amounted to a mere “omission” on their part. They have from the outset of the trust administered it through one of their own number, who was appointed to be their factor, and was remunerated for his services in that capacity out of the trust funds. The whole management of the trust was devolved upon the factor. At common law the trustees had no power to take that course. Under the trust they had power to do so, but subject to this very plainly expressed condition, that there should be an annual and regular audit of the factor’s accounts. With that audit the trustees practically dispensed. That is said to have been a mere matter of omission, and, in one view that may be taken of it, it was a mere matter of omission; but the result, and the necessary result, was that their administration as actually conducted was sanctioned neither by the common law of trust nor by the provision of the deceased’s deed. I am not prepared to hold that a course of administration which cannot be defended or justified either on the ground of its being consistent with the common law or on the ground of its being consistent with the provisions of the trust deed can be regarded as a mere “omission.But it is unnecessary in this case to go any further than the character of the act, even on the assumption that it ought to be treated as a matter of omission. The immunity clause of the Act of 1861, or a similar immunity conferred by the terms of a trust deed, does not afford a protection to trustees against any act or omission which, according to the law, is regarded as constituting culpa lata. My Lords, I think the acting of the trustees in this case did amount to culpa lata. I should be very sorry to hold that the systematic disregard of a check enacted by the testator in his trust deed, a reasonable check, and in some cases, as in the present, a necessary precaution, does not constitute culpa lata.My Lords, upon the amount of damage I do not think it necessary to say anything. I entirely agree with the observations which have been made by the noble and learned Lord on the Woolsack in regard to that part of the case.
Watson	Scott v Glasgow Corp edited	My Lords, the respondents, as the local authority under the Cattle Diseases Acts, 1894 and 1896, have established a foreign animals wharf at Pointhouse, Glasgow, where all cattle brought to Scotland from the United States of America and from Canada are landed, and where such cattle must be slaughtered within ten days after their arrival. The wharf is a public market, and is the only place in Scotland at which American and Canadian cattle are permitted by the order of the Board of Agriculture to be landed and sold.By s. 32, sub-s. 2, of the Contagious Diseases (Animals) Act, 1894 , there are incorporated with it the Markets and Fairs Clauses Act, 1847 , with the exception of ss. 6 to 9 and 51 to 60 thereof. By the 42nd section of the Act of 1847 the undertakers, who are in this case the respondents, are (inter alia) empowered to make by-laws “for regulating the use of the market-place and fair and the buildings, stalls, pens, and standings therein, and for preventing nuisances or obstructions therein, or in the immediate approaches thereto.” They are also authorized, from time to time as they shall think fit, to repeal or alter any such by-laws, “provided always, that such by-laws shall not be repugnant to the laws of that part of the United Kingdom where the same are to have effect, or to the provisions of this or the special Act.”The respondents provided at Pointhouse Wharf certain inclosures or sale-rings in which foreign cattle might be exposed and sold by auction, and in August, 1896, by-laws for the regulation of these rings were prepared by the respondents, and were duly approved by the Board of Agriculture. In August, 1898, additional by-laws for the management, regulation, and use of these sale-rings were made by the respondents, and were approved and confirmed by the Board of Agriculture. By the first article of these additional by-laws it was enacted that - “The sale-rings shall be used only for public sales of cattle by auction on conditions of sale which shall be equally applicable to all bidders and buyers. The sale-rings shall not be used for private sales or for sales to any limited number of persons or for sales in which any class of the public are excluded from bidding or buying.” The rest of the additional by-laws relate to penalties for contravention of or failure to observe the foregoing enactments, and to the date at which the by-laws were to come into operation.The appellants, who were the pursuers of the action, are all members of the fleshers’ trade, generally in Glasgow and its suburbs; and when buyers of foreign cattle they purchase for retail disposal. They allege, and it does not seem to be disputed, that they act as importers, auctioneers, and buyers, as the case may be, of American and Canadian cattle. There has been considerable friction between the appellants and members of the same trade with them and purchasers on behalf of co-operative societies, who make a practice of buying imported cattle at the Pointhouse sales in order to supply co-operative consumers buying retail at their stores at wholesale prices. The appellants and other persons in the same position have undoubtedly the right, according to the law of Scotland, so long as they sell at their own mart or in their own premises, to select the customers to whom they will sell; and although such a sale would not in the strict sense of the law be a sale by public auction, they have a right, as one of the conditions of their selling, to prescribe the persons or class of persons from whom they are willing to accept a bid. The sole conclusion of the appellants’ action is for reduction of the additional by-laws of 1898 on the ground that (1.) these by-laws were illegal and unauthorized by statute; and (2.) that they were not duly approved by the Board of Agriculture in terms of the statute. The second ground of reduction is not now insisted on. The Lord Ordinary (Kincairney) repelled both reasons of reduction, and assoilzied the respondents with expenses. On a reclaiming note to the First Division of the Court, the Lord President (Lord Robertson), with Lords Adam and M’Laren (dissentiente Lord Kinnear), adhered to the interlocutor of the Lord Ordinary with additional expenses. 10In my opinion by-laws made for the Pointhouse Wharf in virtue of the power conferred by the Markets and Fairs Act, 1847 , must, in order to their validity, in the first place relate to the wharf itself or to the conduct of the persons who use it, and, in the second place, must not be repugnant to the law of that part of the United Kingdom in which the wharf is situated. If a by-law offends in either of these particulars it is ultra vires of the respondents as undertakers of the wharf, and cannot derive any validity from the approval of the Board of Agriculture. Now it does not appear to me to admit of reasonable doubt that the by-laws sought to be reduced relate to the use of those portions of the wharf which are designated “sale-rings”; and that the provisions which they contain in regard to the sale of cattle in these rings by what is known to the law as public auction are in accordance with the law of Scotland. The appellants, however, contend that the by-laws are, in the sense of s. 42 of the Markets and Fairs Act, 1847 , repugnant to the law of sale which prevails in Scotland, in so far as they provide that it shall be open to any member of the public present to bid for the cattle, and that it shall not be competent for the seller to use the sale-ring “for sales in which any class of the public are excluded from bidding or buying.”The gravamen of the appellants’ complaint, when closely examined, resolves itself into the objection, not that the additional by-laws per se are necessarily repugnant to the public law, but that they are repugnant so long as no provision is made at the wharf for enabling the seller to dispose of his foreign cattle to any class of purchasers whom he may select, who alone shall be entitled to bid, he undertaking to sell to the member of that class who makes the highest offer. If suitable accommodation were provided, in which the exposers of foreign cattle were permitted by the by-laws to sell to the highest bidder of a circle of customers not representing the public, but selected by the exposers themselves, the objection of the appellants would disappear.Accordingly, the real question at issue between the parties appears to me to come to this: Do the Cattle Diseases Acts of 1894 and 1896, or the Markets and Fairs Act, 1847 , either directly or by implication, impose upon the respondents the duty of providing accommodation at the landing wharf in which each importer of American or Canadian cattle can sell, not by public auction, but by auction upon the same terms and conditions, in so far as regards the persons or class of persons entitled to purchase, which he could lawfully impose in the case of a sale upon his own premises? In the Cattle Diseases Acts there is not a word to suggest that any such duty is incumbent upon the undertakers; and I am of opinion that the provisions of the Act of 1847, to the effect that the by-laws or regulations of the market must not be repugnant to public law, cannot be reasonably construed as imposing upon the undertakers the duty of establishing sale-rings for cattle in which each individual importer can sell by auction to a class of customers or bidders selected by him. On these grounds I am of opinion that the judgment appealed from ought to be affirmed. 
Watson	Leith Council v Leith Harbour And Docks Commissioners edited	The appellants, in their legal capacity as the municipality of the burgh of Leith, constitute a corporation or person capable of holding heritable and personal estate, and of contracting debts and obligations, quite independently of the position which they occupy as trustees for the execution of various legal powers under the authority of Parliament. It was held by the First Division of the Court in Wotherspoon and Hope v. Magistrates of Linlithgow13 that a burgh, as a legal person, is liable, at the instance of a qualified creditor, to sequestration under the provisions of the Bankruptcy (Scotland) Act, 1856 . Under that process the whole property of the burgh, so far as alienable, vests in the trustee in the sequestration, who distributes it among creditors according to their respective rights. But the right of the trustee in the sequestration does not extend to such statutory trusts as are created by the Public Health Acts, or to the statutory power of imposing and levying rates, which remain vested, notwithstanding the sequestration, in the municipal corporation of the burgh. It had been held in Hogan v. Wilson and Magistrates of Musselburgh14 that under the Scottish Bankruptcy Acts prior to 1856 a burgh could not be made notour bankrupt; but the Court of Session had finally decided that it was competent to award sequestration in the usual form of the burgh estate, and to appoint a judicial factor: see Beck (Judicial Factor) v. Burgh of Lochmaben . 15I am not surprised that in the present case the learned judges of the Court of Session, finding the appellants possessed of burgh property sufficient or nearly to meet their obligations, should have declined to allow them to select a particular one of the statutory trusts administered by them, and to apply the moneys of the ratepayer for the purpose of discharging the debt of the burgh. It appears to me to be out of the question to say that heritable property to the value of upwards of 800l. and a perpetual annuity of 500l. are insufficient to enable the owner to provide for a debt of 3500l. It, on the other hand, does not appear, and it has not even been pleaded in the appellants’ case, that the burgh property in question has been so dedicated as to be in whole or in part inalienable. The annuity of 500l. was declared by the Edinburgh and Leith Agreement Act of 1838 to be applicable to “the municipal and civil and other purposes of the said town (Leith) as its own proper estate, funds, and effects.” The appellants have not shewn that the property in question is devoted inalienably to other purposes than payment of their debt, and I do not think that the considerations which led to the decision of Beck (Judicial Factor) v. Burgh of Lochmaben16 and Kerr v. Magistrates of Linlithgow17 have any application to the present case.The authorities relied on by the appellants were English, and, what to my mind is of more importance, they all related to cases where the municipal corporation had appeared in their character of trustees to defend the interests of a statutory trust which had been assailed. I have certainly no repugnance to the equitable doctrine that a trustee who honestly acts in defence of the trust which he administers ought to be kept indemnis out of the funds of the trust; but no English or other authority has been cited to us in which a trustee, who has incurred costs in defending himself or his own interest, has been found entitled to recoup himself out of the pocket of a cestui que trust. In the present case the bill promoted by the corporation of the city of Edinburgh aimed at the destruction of the municipal corporation of Leith. It had not for its object the destruction, alteration, or impairment of any one of the numerous statutory trusts administered by the Leith Corporation beyond the abolition of the latter body. If that object were effected, the ratepayers would have remained in the same position, under the management of the extended corporation, in the election of which they would have had a voice.I am, on these grounds, of opinion that the interlocutor appealed from ought to be affirmed with costs.
Watson	Clydesdale Bank Ltd v JAndG Paton edited 	The main question involved in this appeal is new to the law of Scotland, although it arises upon the terms of a statute which was passed in 1856. Sect. 6 of the Mercantile Law (Scotland) Amendment Act of that year enacts: [His Lordship read the section given ante, p. 383.] These enactments are in substance the same as the provisions of s. 6 of 9 Geo. 4, c. 14 , commonly known as Lord Tenterden’s Act, which applies to England and Ireland. There is this difference of expression between the two clauses—that in the earlier statute it is declared, not that the representations and assurances shall be of no effect, but that no action shall be maintainable upon them when they are not contained in a writing duly subscribed.  All the learned judges in the Courts below were of opinion that the circumstances of the case, as disclosed in the Condescendence, took these representations out of the statute of 1856. The Lord Justice-Clerk held it to be sufficient for that purpose that the representations were made in pursuance of a fraudulent scheme by means of which the bills were obtained, on the assurances of its agent, for the purposes of the bank. The same view was more clearly indicated by Lords Young and Trayner, who were of opinion with the Lord Ordinary that the representations would have been within the statute if they had been made for the sole purpose of inducing the respondents to accept the bills, but that they were excluded from its operation because they were made for an ulterior purpose which is not mentioned in the statute, namely, in order that the bank might be enabled to obtain payment of its claims against Douglas, Reid & Co.The fourth representation does not appear to me to involve the construction of the statute. It differs from those which precede it in this respect, that it does not contain any assurance relating to Douglas, Reid & Co., or to their credit, ability, or trade. In my opinion, it does not possess the character of a representation to which the statute applies. In the view of the law which was adopted by the Courts below, the distinction between the fourth and the first three of the representations libelled on was immaterial.The provisions of s. 6 are expressed in terms as comprehensive as they are imperative. They enact that no verbal representations, being of the character and made for the purpose and with the intent specified in the clause, shall be of any legal effect, as giving a remedy to the person who may be misled by them to his detriment. They in substance provide that no person to whom such verbal representations are made for such a purpose shall have any right to rely upon them, and that if he does choose to act upon them he must bear the consequences of his own credulity. It is also, in my opinion, obvious that these provisions were not intended to meet the case of truthful and honest representations, and that they necessarily include all representations of the character and made with the purpose specified, however false and however fraudulent.In the present case it has hardly been controverted, and it does not appear to me to admit of serious dispute, that the first three of the representations upon which the action is laid answer precisely both in character and in their immediate object to the description contained in s. 6. But it has been argued (and the argument found favour with the learned judges of the Court of Session) that these three representations are not within the incidence of s. 6, because they are alleged to have been made, not merely with the immediate purpose of inducing the respondents to sign accommodation bills, but with the further and fraudulent purpose of enabling the bank to appropriate the bills, when granted, to the payment of its debt. I do not think that the argument has any solid foundation in fact. The main, if not the only, cause of action disclosed by the Condescendence is the fraudulent procuring of the respondents’ acceptance of the bills in question by means of these representations. But I am of opinion that, even if it be warranted by the facts, the argument is without foundation in law. It seeks to limit the generality of the enactments of s. 6 by introducing a proviso to the effect that they shall not apply in cases where the person making the representations has in view some ulterior and illegitimate purpose beyond inducing the person to whom they are made to give credit or money to a third party. There is no warrant for such a limitation to be found in the words of the clause, which, in my opinion, declare explicitly that any verbal representation to which they apply shall be absolutely inefficacious, no matter what may be the further and fraudulent design of the person who made it.It was maintained for the respondents that the competency of proving these representations by parol has been established by s. 100 of the Bills of Exchange Act, 1882 , which provides that—“In any judicial proceeding in Scotland, any fact relating to a bill of exchange, bank cheque, or promissory note, which is relevant to any question of liability thereon, may be proved by parol evidence.” It may well be doubted whether the present action does raise any question of liability upon the respondents’ accommodation bills; but it is an obvious answer to the argument that, in the present and similar cases, such verbal representations have since the Act of 1856 ceased to be relevant facts.It is possible that the fourth representation might be founded on, either as being a fraudulent inducement to sign bills for the accommodation of Douglas, Reid & Co., or as constituting a promise or agreement binding the bank to abstain from imputing any part of the proceeds of these bills towards payment of its debt. But in neither of these aspects do I find any relevant allegation in the Condescendence. It is not averred that the bank has failed to fulfil the representation said to have been made by its agent. The only averment upon this point, which occurs in the 11th article of the Condescendence, is that the respondents’ acceptances “were all placed to the credit of the said Douglas, Reid & Co.’s overdrawn account-current with the Clydesdale Bank, at the several dates when the pursuers said acceptances were obtained as aforesaid. The defenders, the Clydesdale Bank, were thus lucrati to the extent of the said acceptances.” These allegations are quite consistent with the possibility that the whole of the sums so credited were drawn out by Douglas, Reid & Co., and by them applied to their own purposes, and are therefore irrelevant.Your Lordships delayed the consideration of this appeal in order that the respondents might have an opportunity of submitting any amendment shewing that the bank had applied the proceeds of these acceptances in reduction of the balance due to it by Douglas, Reid & Co. The respondents have proposed to add two new averments, the first being that the acceptances were “applied in extinction pro tanto of the bank’s debt,” and the second that, “If the said acceptances had not been granted and applied as aforesaid the bank’s ultimate loss would have been larger by the amount of the said bills, namely, £4000 and interest thereon.” I see no reason to doubt that these amendments have been very properly framed with a strict regard to the limits of truth; but, in my opinion, they come far short of relevancy. So far from negativing, they appear to me rather to suggest that the appellant bank not only allowed to Douglas, Reid & Co. the free use of the proceeds of the respondents’ acceptances, but made new advances to that firm out of its own funds.I have only to observe further that, if the fourth representation were relied on as a promise which the bank had failed to fulfil, the respondents would have no title to raise the question. The only person having a title to complain of a breach of that promise would, in that case, be the trustee in Douglas, Reid & Co.’s sequestration.For these reasons I am of opinion that the interlocutors appealed from must be reversed with costs, and that the action ought to be remitted to the Second Division of the Court of Session, with directions to assoilzie the appellants from its conclusions, with expenses in both Courts below.My noble and learned friend Lord Morris, who is judicially engaged elsewhere to-day, has requested me to state that he concurs in the opinion I have just read.
Watson	Metcalfe v University Court of St Andrews (No2) edited	I also am of opinion that your Lordships have no alternative except to affirm the judgment of the Court below, although in coming to that conclusion I have not been influenced by the reasons which were assigned by the learned Judges of that Court.The only question which is of any importance appears to me to be a very simple one. I do not think it necessary to discuss how far a document of the character of what is termed an “agreement” in this case can be made the subject of a reduction or a declarator of nullity. It is quite sufficient for the disposal of the appeal, in my opinion, that the considerations urged in support of it are, when one comes to examine them, perfectly illusory.I shall only say a word upon the most important of them, namely, the objection that one of the conditions of the agreement, which is that the union to be effected by the Commissioners shall not be dissoluble except by Parliament, is a condition which infringes the provisions of the Act. That is founded upon the idea that section 21 will, in the event of and after affiliation and incorporation, give to the University Court of the newly incorporated university a power, subject to the checks provided in the statute, to make ordinances putting an end to that new incorporation and to its own existence. My Lords, I cannot so read section 21. It gives a power to alter ordinances which affect an existing university—a power on the face of it plainly implying that there is to be no power to destroy the university or to impair the university as then constituted. The only power is to make regulations which shall prevail within the corporation which is then existing.My views upon this part of the case are confirmed by the provisions of section 5. The most important governing body with a Scottish university under the Act of 1889 is the University Court. It is to them that the power of making ordinances and of repealing ordinances is committed by section 21. The constitution of that Court as part of the university is not committed to the Commissioners, and cannot in any view of it be said to be committed to their successors, the University Court. The University Court which is to have this power has its constitution prescribed by section 5 of the statute, which neither of the Commissioners nor any one who succeeds them in the right of making ordinances has power to repeal or touch.I shall not refer to any of the other grounds which have been urged in support of this appeal, and I shall simply content myself with expressing my concurrence with the views which have been already expressed by the Lord Chancellor.
Watson	WN White And Co Ltd v Furness Withy And Co Ltd edited	My Lords, the pecuniary interests involved in this appeal are of trifling amount, but the questions which it raises are of considerable importance to shipowners, and to that class of consignees who are not parties to any contract for the carriage of the goods consigned to them.The facts of the case are simple enough, and are not the subjects of controversy. In the end of November 1892 a quantity of apples, consigned in separate parcels, by four different persons, was shipped on board the steamer Inchulva , which is owned by the respondents, for conveyance from Halifax, Nova Scotia, to the port of London. The appellants were the consignees named in all the bills of lading, which were duly forwarded to them. It is not disputed that the consignments were made to them as agents for the consignors; that no property in the goods passed to them; and that, under the shipping documents, they incurred no personal liability for freight.Each of the bills of lading contained a condition expressed in these terms:“The shipowners shall be entitled to land these goods upon the quays of the dock where the steamer discharges, immediately on her arrival, and upon the goods being so landed the shipowners’ responsibility shall cease.”The Inchulva arrived in the Victoria Docks on Sunday the 11th of December 1892, and next morning was ready to unload. From some cause or other, the precise nature of which does not appear to be material, the appellants were not prepared to take immediate delivery ex the ship. The respondents did not act upon the permission given them by the clause just quoted to land the goods upon the quays of the dock, so that no question arises as to the construction and effect of that clause. They took advantage of the provisions contained in sect. 68 and subsequent clauses of the Merchant Shipping Act Amendment Act 1862 ; and, between 9 A.M. of Monday the 12th and noon of Tuesday the 13th of November, placed the whole of the goods in a warehouse of the London and India Docks Joint Committee On the 10th of December they gave a written notice to the docks committee not to part with the goods until freight was paid, but did not specify the amount of the freight which they claimed.On the 12th of December the appellants deposited in the hands of the docks committee the sum of £152 17s. 1d., which was the total amount of freight payable according to the bills of lading, upon the assumption that the whole cargo had been safely carried. It proved to be in excess of the freight claimed by the respondents, which was £148 16s. 3d. The appellants admitted £148 1s. 3d. to be justly due, but disputed the balance of 15s., and they accordingly directed the warehousemen to tender the freight, so far as admitted, to the respondents, and to retain the balance of the deposited money. The warehousemen, in respect of the deposit, delivered the goods to the appellants. The respondents declined to accept payment from the warehousemen of any sum short of the full amount of freight which they claimed. A correspondence ensued in which the parties took up these hostile positions. The respondents insisted that they were entitled to receive immediate payment of their full claim, leaving the appellants to recover any overpayment which they might be able to instruct. The appellants maintained that in so far as they were concerned the respondents had no pecuniary claim except against the deposited fund; that they were only entitled to immediate payment of freight in so far as admitted; and that they were not entitled to payment of disputed freight out of the fund until they duly established their right to it.The respondents then brought the present action, in which they claimed a personal decree against the appellants for the full amount of freight which they alleged to be due. The statement of claim is couched in very general terms, but these appear to me to import, and I have no doubt were meant to convey the assertion, that the appellants had incurred a personal obligation to pay freight, which was not satisfied by their depositing the amount of freight claimed with the warehousemen. The defence is confined to a denial of liability. In the course of the action the sum deposited was brought into Court by the docks committee.Before the case went to trial, the respondents amended their pleadings by adding a new and alternative claim for a declaration “that they were entitled to a lien upon the above-mentioned goods for the said freight, and are now entitled to a lien upon and to the sum of £148 16s. 3d., part of a sum of £152 17s. 1d. paid by the defendants to or deposited with the London and India Docks Joint Committee in respect of the said freight.” In their amended defence the appellants stated, with reference to the alternative, “that they have no interest in the claim put forward, and they have never resisted such a claim.”The answer thus made by the appellants does not appear to me to be altogether accurate. They had all along admitted that the respondents had a lien on the deposited money for whatever freight they could establish to be justly due. But they had persistently denied that the respondents had a good lien for more than £148 1s. 3d. Their answer for the first time conceded that the respondents had a valid lien for the full freight claimed. That admission put it within the power of the respondents to end the litigation. The deposited money was in Court. Had the judge been moved to grant the declaration, which was not opposed, it would necessarily have been followed by an order to pay to the respondents, out of that money, the full amount of their claim.The respondents elected to proceed with the litigation; and it is obvious that their object was to establish that, in addition to their admitted right to enforce their lien over the money deposited, they had an independent personal claim against the appellants, which they could enforce by action. Day J. sustained their claim, and gave them a personal decree against the appellants. His decision was affirmed by a majority of the Appeal Court, consisting of Lindley and A. L. Smith L.JJ., Davey L.J. (now Lord Davey) dissenting.Before adverting to the provisions of the Act of 1862, it may be useful to consider what, previous to its passing, were the mutual rights arising to parties in the same position as these litigants. The law upon that point does not appear to me to admit of doubt. The holder of the bills, although he was no party to the contract of carriage, and had no property in the goods, had yet a good title to demand delivery; but he could not insist on that demand unless he was prepared, as a condition of obtaining delivery, to satisfy the shipowner’s claim for freight. On the other hand, if delivery was not taken on these terms, or, if he delivered the goods without being paid freight, the shipowner could not sue a holder of the bills who was not liable upon the contract of carriage, unless he could shew that such holder had incurred an independent obligation to pay freight. The existence of such an obligation was not matter of legal implication. It required to be proved as matter of fact. In cases where the goods had been delivered it was frequently held to be matter of reasonable inference that delivery had been given and received, on the mutual understanding that the recipient was to pay the freight in consideration of the surrender of his lien by the shipowner.Sect. 70 of the Act provides that when goods have been landed and warehoused, with notice of the shipowner’s lien, in terms of sects. 67 and 68 , upon deposit of the amount of freight claimed with the warehouseman, “the lien shall be discharged, but without prejudice to any other remedy which the shipowner may have for the recovery of the freight.” The effect of that enactment is that, whenever the deposit is duly made, the shipowner’s lien is transferred from the goods to the money deposited, and the warehouseman becomes bound to deliver the goods to the depositor.Sects. 71 and 72 prescribe the course which is to be followed in the event of the shipowner electing to take his remedy against the money, which is thus made subject to his lien. If the depositor does not, within fifteen days after making the deposit, give notice in writing to the warehouseman to retain it, the money becomes payable to the shipowner. If notice is given within the time limited, the warehouseman must forthwith apprise the shipowner of such notice, and pay or tender to him the sum admitted to be due, retaining the balance of the deposited money for thirty days from the date of the notice. On the expiry of that period the balance retained is to be repaid to the depositor, “unless legal proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the said balance or sum, or otherwise for the settlement of any disputes which may have arisen between them concerning such freight or other charges as aforesaid.”These enactments plainly contemplate that the shipowner may enforce his statutory lien by an action for ascertainment of the amount of freight justly due to him, and for payment of that amount out of the deposited money. They reserved to the shipowner all remedies which he had for recovery of freight, other than through his lien upon the goods, at the time when such lien is extinguished, in terms of sect. 70 .In the present case there does not appear to me to be any evidence which can raise an inference in fact that the appellants promised to pay freight to the respondents. The only object which the appellants had in view was to obtain lawful possession of the goods, and that object was fully attained by their compliance with the statutory condition, which at once terminated the respondents’ lien on the goods and gave them right to claim delivery from the docks joint committee. To my mind, it is in the last degree improbable that the appellants should have undertaken a personal liability, which was unnecessary for their purpose, and would have been wholly gratuitous.It was maintained, in the course of the argument for the respondents, that the provisions with reference to “legal proceedings,” which I have already quoted, and which are to be found towards the end of sect. 72, confer upon them the right to make a personal claim against the appellants. I do not think these provisions are capable of being so interpreted. They do not profess to give any new remedy; they simply direct that, in a certain event, the warehouseman shall retain the sum or the balance of the sum deposited with him until the shipowner has established the amount of the freight to which he is entitled, by means of a decree obtained in any proceedings which he may have a good title to raise and insist on.For these reasons I am of opinion that the present action, as originally laid, entirely fails, and that the order appealed from must be reversed. I concur in the judgment which has been proposed by the Lord Chancellor.
Watson	North British Railway v North Eastern Railway (No1) edited	The direct East Coast route between London and Edinburgh is by the main line of the Great Northern Company from King’s Cross to a point between Selby Junction and York, from that point by the main line of the North-Eastern Company to Berwick, and from Berwick to Edinburgh by the main line of the North British Company.By the eighth article of an agreement between the North-Eastern and the North British Companies, which is scheduled to and incorporated with “The North-Eastern and Carlisle Amalgamation Act, 1862,” it is provided as follows:—“For the purpose of maintaining and working in full efficiency in every respect the East Coast route by way of Berwick, for all traffic between London and Scotland, and Edinburgh, Leith, Glasgow, and other places in Scotland, the North British Company shall at all times hereafter permit the company” ( i.e. the North-Eastern Company), “with their engines, carriages, waggons, and trucks, to run over and use the North British Company’s railway, sidings, stations, wharves, and stopping, loading, and unloading places, water, watering-places, and other conveniences at and between Berwick and Edinburgh, all inclusive.” … “Subject to the payment by the company to the North British Company for such user of such tolls, rates, or dues, or such share or proportion of tolls, rates, or dues, as have or has been, or shall from time to time be agreed upon by and between the said companies, or in default of such agreement, as shall be fixed by arbitration in manner hereinafter provided.”For a period of forty-five years prior to the institution of this action in December 1894, there had been a regular and daily service of passenger trains both ways between Edinburgh and London. The number of these trains, their times of departure and arrival, and their rates of speed had been raised from time to time. It is not matter of dispute, that until the year 1869 these trains were the joint adventure of the three companies, who shared the receipts in proportion to their respective mileages. The rolling stock chiefly used for them was the joint property of the three companies, but their engine power was supplied between King’s Cross and York by the Great Northern Company, between York and Berwick by the North-Eastern, and between Berwick and Edinburgh by the North British Company. When carriages belonging to one of the companies were required to make up the train, that company received a mileage allowance for their use.In 1869 a new arrangement was made in regard to these trains, under which the position of the Great Northern Company appears to have remained the same as it previously had been. In January 1865 the North-Eastern intimated to the North British Company their intention to commence using the running powers conferred upon them by statutory agreement; but no change was made, of any kind, until August 1869, when certain heads of agreement were settled between the representatives of the two companies, which contained the proviso that the arrangement which they embodied should be without prejudice to, and should not be mentioned or referred to in connection with any further or subsequent arrangements or arbitrations which might become necessary, and also that it should be terminable at three months’ notice on either side.Apart from the terms of the arrangement of August 1869, the only apparent change which it effected in the working of the trains, and in the distribution of their earnings, consisted in the fact that thenceforth the haulage of the trains from Berwick to Edinburgh, and vice versa , was performed by the North-Eastern Company with their own engines, and that a mileage allowance for such haulage was deducted from the proportion of receipts paid to the North British Company. That fact is not, in my opinion, conclusive of the question argued at your Lordships’ bar, and largely discussed by the Lord Ordinary (Lord Low), as well as by the Lord President, in delivering the opinion of the First Division—whether, in working under the agreement, the North-Eastern Company were or were not exercising their running powers. I have no intention of entering upon that discussion, because, in the view which I take, its determination one way or another cannot affect the present position or rights of the parties to this litigation.The North British Railway Company, on the 18th January 1894, gave notice to terminate the agreement of August 1869 on the 30th day of April next, in so far as it related to haulage between Edinburgh and Berwick. As that notice affected what the North-Eastern Company regarded as a cardinal feature of the arrangement contained in the agreement, they accepted the notice “as a formal notice terminating that arrangement.” At that time the object of the North British Company apparently was to restore in substance the arrangement which prevailed before August 1869, by substituting their own haulage of the trains for that of the North-Eastern Company between Edinburgh and Berwick, and getting rid of the payment made on that account out of their share of earnings to the latter company. Before examining the record, I think it may be advisable to consider what the respective rights of the parties were in law on the 30th April 1894, because these remained unaltered at the time when the present action was brought by the North British Company. At that date the agreement of August 1869 had come to an end, and the arrangement which had been operative before it had been superseded for five-and-twenty years. Neither the one nor the other of these arrangements could any longer affect the legal interests of the two companies, who were, in my opinion, remanded to their respective statutory rights. The North British Company were the owners of the railway between Edinburgh and Berwick, and in that capacity had an absolute right to use it as they chose, save in so far as that right might be qualified and restricted by the due exercise of the running powers competent to the North-Eastern Company under the statutory agreement of 1862. They also had, or might have, the right to insist upon facilities being afforded by the North-Eastern Company for the forwarding of their traffic beyond Berwick; but the existence and extent of that right are matters beyond the cognisance of the ordinary Courts of the country, and can only be considered and determined by the proper tribunal—the Railway Commissioners. On the other hand, the North-Eastern Company have unquestionably running powers over the railway between Edinburgh and Berwick; but to my mind it is clear, from the terms in which these powers are conferred, that they have not the right to intrude, at their own hand, upon the North British system, and to use them according to their own will and pleasure. Until the extent of their legitimate use has been determined by the proper tribunal, or by mutual consent, these powers will continue to exist, but the right to exercise them will be practically suspended.The remedy asked by the North British Company is expressed in declaratory conclusions, and two other conclusions, one for interdict and another for a peremptory order, both of which are consequential upon the declaratory conclusions being affirmed. The declaratory conclusions refer to and incorporate a schedule setting forth all the through trains which ran during the year 1894 until the date of the summons, with their monthly times of departure from and arrival at Edinburgh and London, and certain intermediate stations where they stopped. The substance of the first conclusion is to have it found and declared that these trains “have all along hitherto, or otherwise since August 1869, been and are,” while on the railway of the pursuers, between Edinburgh and Berwick, trains of the pursuers, and not trains run by the defenders in the exercise of the running powers conferred by the articles of agreement. The substance of the second is a declaration that the pursuers are entitled to run these trains between Edinburgh and Berwick, with their own engines and guards and as their own trains; and that the defenders are not entitled to do so, so long as the pursuers are able to work these trains in an efficient way. The third conclusion relates to a separate matter which I shall subsequently notice.I fail to see what possible interest the North British Railway Company has to insist in either of these conclusions. The object of a declaratory decree in a case like the present is to establish the right of the pursuers as it existed at, and will continue to exist after, the date of the action. But the judicial ascertainment of what the North British Company’s rights in relation to these trains were, either under the agreement of 1869, or under the arrangement which preceded it, cannot, in my opinion, afford any aid towards determining what their rights were at the commencement of this action, and are now, which is the only real subject of controversy between the parties. In order to arrive at an intelligible construction of these conclusions, in so far as they relate to the through trains which continued to run after the determination of the agreement of 1869, I have found it necessary to assume,—what I understood to be admitted as matter of fact by both sides of the bar,—that both parties, who were then at issue as to their respective rights, in their own interest very properly consented to the continuance of the trains until their rights were settled. An arrangement of that kind cannot give rise to any right in either of them, or detract from any right which they possess. It is also clear to my mind that the North British Company are not in a position to ask a Court of law to determine what their rights were or are to be in relation to through trains, after the date of the summons, and that is a matter which, as I have already pointed out, must depend upon the arrangement which the parties may make for themselves, or have settled for them by the Railway Commissioners. The leading pleas stated in defence to the action by the North-Eastern Company were—that under their running powers they are entitled “to run such number of East Coast trains between Edinburgh and Berwick as may appear to them to be necessary or advisable”—that they may have exclusive right to run the East Coast trains between Edinburgh and Berwick. As already indicated, it appears to me that these pleas are in excess of their legal rights. To this extent—that they have no power, at their own hand, and with no authority beyond their own—I do not hesitate to express my opinion. But I purposely abstain from pursuing the question further, because that course would necessarily involve considerations which are beyond my jurisdiction. If the parties choose to resort to the proper authority, that authority will be able to determine the cognate questions whether, and how far, the North British Company are in a position to insist for forwarding facilities at Berwick, and also to what extent and in what manner the North-Eastern Company ought to use its running powers.The third conclusion is for a declaration to the effect that the North-Eastern Company are not entitled to use the East Coast joint stock carriages in any trains which they may run on the railway of the pursuers without their consent. It is admitted that these carriages are the joint property of the three companies; but it is pleaded in defence that the conditions regulating the user of these carriages excluded the objection taken by the North British Company, and also that it could not be disposed of in this suit, inasmuch as the Great Northern Company had not been made a party to it.The Lord Ordinary (Lord Low) sustained the plea of all parties not called, as regards the third conclusion, and dismissed the same; and as regarded the whole other conclusions of the summons, he sustained the defences stated to the action, and assoilzied the respondents therefrom, with expenses. Upon a reclaiming note to the First Division of the Court, his Lordship’s interlocutor was affirmed, with additional expenses.I think that the third conclusion of the summons was rightly disposed of by the Courts below. The use which has been or was being made of the carriages in question by the North-Eastern Company was in reality one in which the Great Northern Company participated, and from which it derived pecuniary benefit; and a decree, in the terms craved, against the North-Eastern Company would have the effect of compelling that company to eliminate their carriages from the train when or before it reached Berwick, and would so deprive the Great Northern Company of the right to use the carriages for the conveyance of passengers from King’s Cross to Edinburgh. It appears to me that they ought not to be deprived of that right without an opportunity of being heard for their interest.For the reasons which I have endeavoured to explain, I am of opinion that the North British Company have shewn no interest entitling them to insist in the other declaratory conclusions of the action, the affirmance of which would not ascertain, or assist in the ascertainment, of their legal rights, as in a question with the North-Eastern Company, either at the present time, or at and after the date of the summons. The logical result of that opinion is, that these conclusions also ought to be dismissed, together with the remaining conclusions of the summons, which are dependent upon them. The interlocutors of the Courts below go a great deal further,—they sustain the defences and assoilzie,—the effect of which is to make the affirmance of each and every plea in law put on record by the respondents res judicata as between the litigants. There are several of these pleas, including the most important of them, which I should be prepared to repel, if it were necessary.I have, in these circumstances, come to the conclusion that the proper course for your Lordships to take is to reverse both interlocutors appealed from, and to remit the cause to the Court of Session in order that the action may be dismissed. Having regard to the nature of the litigation, and to the purposeless or extravagant claims advanced by both these litigants, I think the justice of the case will be met, as your Lordship has proposed, by allowing costs to neither of them, either here or in the Court of Session. 
Watson	South African Territories Ltd v Wallington edited	My Lords, the only engagement made by the respondent with the company consisted in a promise to advance money to them in loan; and it is settled in the law of England that such a promise cannot sustain a suit for specific performance. It is equally clear, in my opinion, that the obligation of the company to issue mortgage bonds against the loan did not in any way alter or affect the character of the transaction, or give the company any right to sue as for the price of an article sold by them which they were ready to deliver. The only remedy open to the company was by action against the respondent for any loss or damage which they might sustain through his breach of promise.The case was tried before Wright J., who gave the company decree as for the price of the debentures which the respondent had agreed to take up. I cannot say the trial was satisfactory. The proceedings were chiefly occupied by a discussion between the learned judge and the respondent’s counsel, in the course of which the former indicated the terms of the order which he meant to pronounce. No evidence of damage was tendered by the appellant company.An appeal was taken by the respondent upon a notice of motion that the decree of Wright J. should be reversed or varied, and that judgment should be entered for him or a new trial allowed. At the hearing of the appeal counsel for the company urged the first and second of the claims made by them and did not refer to their claim of damages. After the judgment of the Appeal Court was delivered, reversing the order appealed from and entering judgment for the respondent, counsel, in the absence of the head of the Court, moved two Lords Justices to remit the case for trial of the question of damages. Their Lordships declined to entertain the application.On the hearing of this appeal, counsel for the company again pressed upon your Lordships the desperate arguments which they had addressed to the Court of Appeal, and moved your Lordships to send back the case, in order that the company might have an opportunity of proving damage. I do not doubt that it is within the discretion of the House to grant or refuse that motion; but I am very clearly of opinion that, in the circumstances of this case, your Lordships’ discretion ought not to be exercised in favour of the appellants, and that the order appealed from ought to be affirmed with costs.
Watson	McNab v Robertson edited 	My Lords, the first question which it is necessary to consider in this appeal is whether the spring which the respondents have impounded by means of a tank was, at the date of the lease, connected with the lower pond by a flow of water constituting a stream or streams within the meaning of the lease. If it were, there would not appear to me to be any room for doubting that the operations of which the appellant complains have encroached upon his legal rights as tenant.According to my apprehension, the word “stream,” in its primary and natural sense, denotes a body of water having, as such body, a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid, as distinguished from its sluggish current in other places. I see no reason to doubt that a subterraneous flow of water may in some circumstances possess the very same characteristics as a body of water running on the surface; but, in my opinion, water, whether falling from the sky or escaping from a spring, which does not flow onward with any continuity of parts, but becomes dissipated in the earth’s strata, and simply percolates through or along those strata, until it issues from them at a lower level, through dislocation of the strata or otherwise, cannot with any propriety be described as a stream. And I may add that the insertion of a common rubble or other agricultural drain in these strata, whilst it tends to accelerate percolation, does not constitute a stream, as I understand that expression.The spring in question, which is a very small one, is situated at a short distance from and above the level of the lower pond. There is little evidence, and that neither explicit nor altogether satisfactory, in regard to the condition of the spring and its effluents sat and before the granting of the lease in September, 1889. Most of the witnesses speak to their condition after the operations of the agricultural tenant, which were subsequent to that date, and before the year 1892. But I am satisfied, upon the proof, that, whilst a small proportion of the water escaping from the spring may have gone in another direction, the bulk of its water must have gravitated towards the pond, and that a considerable proportion of it must ultimately have found its way into the pond.Galbraith, the agricultural tenant, describes the land between the spring and the pond, before he commenced his operations, as a marsh which did not come quite close up to the side of the pond. He, in order to dry the soil, put a drain into the marshy part, which he continued by means of an iron pipe three feet long to a tub sunk on the edge of the pond, from which he drew water for domestic use, and the overflow from which went into the pond. Lawson, who was assistant factor for the estate of Garscube, at the date of the lease, describes the intervening land as “soft spongy ground”; and there are other witnesses who describe the water as “seeping” from the adjacent land into the pond - a Scottish expression equivalent to “oozing” — which is an accurate description if applied to the escape of percolating water from the strata through which it has passed, and is to my mind altogether inconsistent with its running in a stream. Boyne, one of the appellant’s witnesses, no doubt says that there was a sort of channel formed by the water from the spring; but he is the only person who appears to have detected it, and the bulk of the evidence upon the point, as well as the natural inference to be derived from facts established aliunde, alike lead me to the conclusion that, until the time of Galbraith’s operation, the water of the spring reached the pond by the natural process of percolation, and that no part of the supply derived from the spring flowed in a body which could with any degree of accuracy be described as a stream. I therefore differ in opinion from the Lord Ordinary, who came to the conclusion that the water of the spring in question was one of the streams specifically let to the appellant. Had I been able to arrive at that result, I should not have thought it necessary to consider whether, by interfering with the spring, the respondents had injured the appellant’s water supply. In that case, every drop of water which they took from the spring, otherwise than in the due exercise of their reserved right in connection with farm purposes, would have been an illegal diminution of the supply secured to the appellant by the terms of his lease.The result of my opinion, so far as hitherto expressed, is that the waters of the spring in question were not demised to the appellant, subject to a reservation permitting a certain user of them to agricultural tenants, but remained with the respondents under their title as proprietors. The appellant, upon that view of the case, maintained alternatively that the respondents are under a contractual obligation to allow as much of the water of the unlet sources from which the pond is fed to continue to enter it as may be equivalent to the average of the water supply derived from these sources at the date of the lease; and in aid of that contention he relied upon the general principle of law - that the grantor of a right cannot himself do anything in derogation of his own grant. The application of that principle must depend upon the extent of the right which the tenant got under his lease, whether by demise or by contract. I see no reason to doubt that such a contract right as the appellant alternatively claims, seeing it may be the subject of express stipulation, may also be derived by reasonable implication from the terms of the lease. But any such implication is attended with difficulty in cases like the present, where certain sources of supply are specified and let. I am not prepared to affirm that a contract to the effect pleaded is implied in the stipulations of the lease of 1889; but I am willing, for the purposes of this appeal, to assume its existence. Upon that assumption, it is incumbent upon the appellant to establish that the result of the respondents operations has been to diminish the supply of water now finding its way from the spring into the pond, as compared with the supply which came from the same source at and before the date of the lease.I think the necessary effect of Galbraith, the agricultural tenant’s, operations, which were subsequent to the granting of the lease, was to convey the water of the spring more rapidly and more directly to the pond, and to prevent its dissipation in the soil or its evaporation. If so, their tendency would necessarily be to increase and not to lessen the quantity of water reaching the pond from the spring. The immediate effect of the respondents’ operation which followed was to collect, as soon as they came to the surface, the whole waters issuing from the spring, including a proportion of them which had not previously gravitated towards the pond, and to make them available for transmission in undiminished volume. The water collected in the tank serves, in the first place, to supply a pipe, which is not used for agricultural purposes, and the remainder is directly conveyed by another pipe to the tub sunk by Galbraith through which the water of the spring previously entered the pond. A comparison between the quantity of water which now runs over the tub and that which previously escaped from it must therefore afford the means of ascertaining whether there has been a diminution of the supply since the arrangement made by Galbraith was superseded. The whole evidence which bears on the alleged diminution in the amount of the spring water which now enters the pond, as well as on the amount which entered it before the lease was granted, is, it may be necessarily, somewhat vague. In considering that evidence, it is, in my opinion, not immaterial to keep in view the fact that, in the time of his predecessors, the weekly output of the distillery never exceeded 1300 gallons of whiskey, whereas during the tenancy of the appellant it was increased to about 1700 gallons, which represents an addition of about 30 per cent. to the quantity of water used for distillery purposes at the date of the lease. I have also to observe that the scarcity of water in such an exceptional season as that of the year 1894 cannot throw much, if any, light, upon the average quantity derived from the spring at and before the date of the lease - a question which in the absence of more reliable data can, in my opinion, best be solved by ascertaining whether or not the overflow from the tub has been sensibly diminished since, and by reason of the respondents’ operations. Upon that point there is conflicting evidence; but, on the whole, I prefer the testimony which is favourable to the respondents; and, in any view, I have no difficulty in holding that the appellant has failed to prove diminution.For these reasons I am of opinion that the interlocutor appealed from ought to be affirmed and the appeal dismissed with costs, and I move your Lordships accordingly. 
Watson	Cellular Clothing Co Ltd v Maxton And Murray edited	This case has been treated in argument with all the care and anxiety that seem to be required where counsel have to deal with a question touching trade-marks; but at the same time I must say that, from the beginning to the end of the comments which have been made upon the evidence, I have had no difficulty in following and in entirely concurring with the view of the facts which has been suggested in the judgment of the Lord Ordinary.It is not necessary for me to dwell upon the case after what has been said by the Lord Chancellor, but I must observe that the word “cellular,” in the use of which the alleged infringement of the pursuers’ right consisted, is an ordinary English term. It is not only an English term, but it is a word which has no necessary connection with, and does not in itself necessarily suggest, the existence of a Cellular Cloth Company. And it is a term which conveniently enough and appropriately enough describes the cloth of which the articles of dress sold by the respondents are manufactured. I have sought in vain in the evidence for any indication, in the first place, that there was deceit or fraud committed by the use of the term “cellular cloth” which has led anybody, even a retail trader, or a retail trader’s customer, to suppose for one moment that he was getting the Cellular Company’s cloth and not cloth manufactured in Scotland by another manufacturer. In the second place, I see no reason to suppose that there was in the term itself, or in the way in which it was presented to the public by the respondents, any opportunity given, such as the law would disapprove of, for a retail trader to commit a fraud upon the customers to whom he sells.Under these circumstances, I think it is clear that this appeal has entirely failed, and that the judgment of the Court below ought to be affirmed.
Watson	Medcalfe v Cox edited	My Lords, I also am of opinion that your Lordships have no alternative except to affirm the judgment of the Court below, although in coming to that conclusion I have not been influenced by the reasons which were assigned by the learned judges of that Court.My Lords, the only question which is of any importance appears to me to be a very simple one. I do not think it necessary to discuss how far a document of the character of what is termed an “agreement” in this case can be made the subject of a reduction or a declarator of nullity. It is quite sufficient for the disposal of the appeal, in my opinion, that the considerations urged in support of it are, when one comes to examine them, perfectly illusory.I shall only say a word upon the most important of them, namely, the objection that one of the conditions of the agreement, which is that the union to be effected by the commissioners shall not be dissoluble except by Parliament, is a condition which infringes the provisions of the Act. That is founded upon the idea that s. 21 will, in the event of and after affiliation and incorporation, give to the University Court of the newly incorporated university a power, subject to the checks provided in the statute, to make ordinances putting an end to that new incorporation and to its own existence. My Lords, I cannot so read s. 21. It gives a power to alter ordinances which affect an existing university—a power on the face of it plainly implying that there is to be no power to destroy the university or to impair the university as then constituted. The only power is to make regulations which shall prevail within the corporation, which is then existing.My Lords, my view upon this part of the case are confirmed by the provisions of s. 5 . The most important governing body with a Scottish university under the Act of 1889 is the University Court. It is to them that the power of making ordinances and of repealing ordinances is committed by s. 21. The constitution of that Court as part of the university is not committed to the commissioners, and cannot in any view of it be said to be committed to their successors, the University Court. The University Court which is to have this power has its constitution prescribed by s. 5 of the statute, which neither of the commissioners nor any one who succeeds them in the right of making ordinances has power to repeal or touch.My Lords, I shall not refer to any of the other grounds which have been urged in support of this appeal, and I shall simply content myself with expressing my concurrence with the views which have been already expressed by the Lord Chancellor. 
Watson	McCord v Charles Cammell And Co Ltd edited 	My Lords, I am of the same opinion. It appears to me that the disengaging of the tail wagons from the engine and securing them in order that they might remain stationary until the engine returned to take them up, was an act done in the conduct of the train with which that engine started. If that act was negligently done (which is a matter for the jury to determine) then, under the statute of 1880, the appellant is entitled to recover if the person guilty of negligence had at the time “charge or control of the train.” The words, “any person having charge or control of the train,” do not, in my opinion, necessarily point to one person who is in charge of the whole train. Different duties in connection with different parts of the train may be assigned to different persons, and, in that case, each and all of those persons are charged with the conduct of the train; and, if any one of them be negligent in his own department, that will constitute “negligence,” bringing the case within the terms of s. 1, sub-s. 5 .My Lords, I shall only say further that, according to the view I take of the evidence, the appellant is entitled to go to a jury upon two alternatives, namely, either that Fletcher, the engine-driver, or that Hopper, his fireman, was guilty of a negligent act. It is plain that Hopper was the person who insufficiently scotched the wagon which ran down the incline and killed the deceased; but it may be that, although he was the direct cause of the accident, the engine-driver was also negligent in his duty, if he was charged with that duty. And I think, if that view were taken, he knew quite well the kind of sprag that was being used, and had reason to know that, although for some purposes sufficient, the use of it was attended with danger. On the other hand, if the duty of spragging was properly delegated to Hopper, he was, to that extent, in charge of the train, and was negligent. But on whichever of these alternatives negligence be found, whether it be fixed on the engine-driver or upon the fireman, I think it follows that such person is also fixed in the position of the “person having control of the train.” It has been suggested by one of the learned judges in the Court of Appeal that the duty having been committed to a great many persons, any one of whom might have performed it, therefore the person actually performing it was not “in charge.” To my mind, these considerations are very immaterial. I think the statute points directly to the person having “the charge or control of the train” as being that person who, at the time when the negligent act is committed, has the duty laid upon him of performing that act with reasonable care.Upon these grounds, I think that this case must go down for a new trial.
Watson	Murray v McCosh edited 	The position occupied by Mr M’Cosh, the appellant in this case, is, when it is considered even not very attentively, a very peculiar one. He claims to be a secured creditor of this firm, and to have an interest in the firm as a creditor merely; he says that he has no rights as partner—he had no interest in the stock, although the extent of the interest which he had stipulated for in the firm is not in the least degree proportional to the amount of the debt which he says is charged. However, I venture to take a very short view of this case, and it appears to me that a very short view is quite sufficient to dispose of the merits laid before us on behalf of the appellant by his counsel.The first question, which really is a very interesting one, appears to me to be this:—During the three years of the agreement, which is of course the critical period—the three years lasted until article 4 was acted upon by Mr M’Cosh—during the whole of that period to whom did the £1250 which this deed says—and in one sense the statement is true, though in all senses I am quite satisfied it is not true—was advanced to Adam Jardine belong? That point being fixed, the next point is to consider for whose behoof it remained in the firm, and for whose behoof was it traded on during the whole of that period as one of the assets of the partnership—as an asset amounting to one half of the stock of the firm. Now, there are three persons to whom it may be suggested that that asset in reality belonged. First of all, Donald Brown junior, who is the ostensible partner of the firm by whom its assets are possessed, and who in terms of this agreement was entitled and bound to conduct the commercial part of the adventure. Donald Brown got no real right to that money whatever—he got no title to it—he got possession of it in order that he might pay for the assets of the partnership and take them over, but he got no interest. His position differed from that of Mr Adam Jardine in this essential particular, that whilst he was invested with his share of the stock of the trading firm, Mr Adam Jardine had no right in that stock until he got that right by the consent of M’Cosh at the end of three years. That is the position of Mr Donald Brown. What is the position of Mr Adam Jardine? He had no right as a partner. Article 4 makes that perfectly clear, and shews that, until he was admitted by Mr M’Cosh, he had no interest whatever either in the partnership or its assets. Adam Jardine had no right to the stock unless and until he was admitted as a partner. Then we come to Mr M’Cosh. Mr M’Cosh I do not say had a title to these funds; he could only touch them if he had a right to do so through Donald Brown, whom he had chosen to make his manager of the concern, but M’Cosh had a right —and that right seems to have resided with no one else—at the end of the three years to appropriate the whole of the capital that he had advanced, or any part of it that remained, or anything that represented it. He had also a right to have the profits that had accrued upon it set apart in a suspense account during the continuance of those three years, and at the end of that period the right to it did not pass to Adam Jardine unless with his consent and goodwill.In these circumstances I cannot have the slightest doubt that Mr M’Cosh was from the very outset of this adventure the leading partner in it, and that he so remained in the state in which the adventure was at the time when this action was raised. It appears to have been unsuccessful, and the concern appears to have been sequestrated, but that was before any change was made in the rights of the parties, or before they were in the least different from what they would have been at the end of the triennial period.
Watson	Annan v Hutton edited	 I agree with the opinion that has just been delivered by my noble and learned friend.I am quite satisfied that in this case the factor loco tutoris, the appellant, acted in perfect good faith; but I do not think that circumstance is sufficient in law to afford a justification of the security upon which he has invested the funds of his ward.I do not think that under the Pupils Protection Act , or under any statutory warrant or at common law, the accountant of the Court has power to approve of improper investments. I think that is a point upon which the Court must be the sole judges. I do not find any indication of such a power in the Acts under which the accountant of court’s office was constituted and now exists.In the second place, it is in vain to say that the security taken by the factor was in any sense a security over “land or real or heritable estate.” It was a personal charge upon the revenues of the Board of Administrators who managed the harbour and docks of Greenock. No doubt the Acts under which they administer contain a provision to the effect that if there is a shortcoming of funds the creditors who have lent their money may obtain the appointment of a judicial factor—but a judicial factor for what purpose? To receive the rents and revenues—nothing more.The next, and probably the most important point to be considered in this case, is this: In what sense was this a justifiable loan? I am not going to follow my noble and learned friend through the various classes of investment which he has noticed—those classes of investment which have been sanctioned by the Court and those which have not. I will only say that I think in the present case the security clearly falls within the latter class. In the first place, without going into the figures in detail, it is perfectly clear on the face of the record, and it becomes still more clear when the evidence is looked at, that this security was one which wholly depended for its worth upon the success or failure of what was no doubt a legitimate commercial adventure. The adventure might succeed—there were great expectations that it would succeed; but expectations of that kind with respect to possible commercial prosperity are a very unsafe subject upon which to lend money. In many cases the loan may be perfectly safe; in others, when a casualty comes, I think we should be infringing a—I was about to say very well known, but I am sorry to see it is not so—rule of the law of Scotland, if we were to sanction such an investment as this, as a proper one for either a tutor or factor loco tutoris dealing with the property of his pupil or ward. I therefore concur in the judgment that has been moved, and I have only to remark that the Order of the House must be so framed as to exclude the three interlocutors pronounced by the Lord Ordinary which have been, by mistake or otherwise, included in the petition of appeal. They have not been reviewed by the Inner House, and are not appealable under the provisions of the Act of 48 Geo. 3.
Watson	McEntire v Crossley Brothers Ltd edited	My Lords, I agree with your Lordships that in this appeal no cause has been shewn for disturbing the judgment of the Appeal Court in Ireland.As is usual in cases of this kind, we have heard a great deal in the course of the appellants’ argument of the necessity of attending to the substance of the agreement which we have to construe. My Lords, that is a canon of construction which is applicable to all agreements; but it must always be borne in mind that the substance of the agreement must ultimately be found in the language of the contract itself. The duty of a Court is to examine every part of the agreement every stipulation which it contains, and to consider their mutual bearing upon each other; but it is entirely beyond the function of a Court to discard the plain meaning of any term in the agreement unless there can be found within its four corners other language and other stipulations which necessarily deprive such term of its primary significance.My Lords, in this case the substance of the agreement does not admit of much doubt. Although the words “lessors” and “hirer” are used and the word “rent” also occurs, it is perfectly plain that the agreement is one of sale and purchase, and nothing else. To that extent, my opinion entirely coincides with that expressed by the learned judge of first instance.But a finding that the contract in this case is one of sale and purchase is not sufficient for the argument of the appellants; because it does not in the least follow that, because there is an agreement of sale and purchase, the property in the thing which is the subject-matter of the contract has passed to the purchaser. That is a question which entirely depends upon the intention of the parties. The law permits them to settle the point for themselves by any intelligible expression of their intention.If there be one point on the face of this contract clearer than another, it is, that the intention of the parties was that the seller should not part with his dominium over the thing which he was selling, and that its property should not become vested in the purchaser until the last farthing of the price was paid. If there had been in the deed language which shewed that the parties were using those expressions inadvertently, or that they had entered into other stipulations which were in substance contrary to the expressed intention, the case would have been otherwise. They might, for instance, have given power to the purchaser to exercise a right which implied his dominium before the contractual term for the passing of the property arrived. But there is no case of that kind here. There are no such stipulations to be found in the agreement. The whole stipulations of the agreement appear to me to be in entire conformity with the expressed intention of the parties; and I may add this observation, that in my opinion the remedies given to the unpaid vendor are far more appropriate to the case of an undivested seller than to the case of a mortgagee, which was said to be his true position.My Lords, I need not, after the criticism of my noble and learned friend the Lord Chancellor, enter any further into the terms of this contract. I shall only say in conclusion, that I find it impossible to attach the construction to it which was contended for by the appellants without taking out of the contract plain words which are to be found in it and inserting in lieu of them words to a different effect which are not to be found in it. 
Watson	Owners of No7 Steam Sand Pump Dredger v Owners of Steamship Greta Holme edited	My Lords, that it is a wrongful act, although it may not be wilful but simply negligent, to deprive either an individual or a corporation of the services of a dredger or other plant which is constantly required for useful purposes, does not appear to me to be a proposition admitting of serious dispute; and I am not prepared, unless in circumstances which do not occur in this case, to lay down the rule that a corporation which does not pursue its operations for the sake of gain, in the ordinary sense, does not suffer appreciable damage from their interruption. The Master of the Rolls expressed an opinion that the damages sought by the respondents, if not too shadowy, “were too remote to be the proper subject-matter of damages in a collision suit.” None of the other learned judges in the Court below appear to have taken that view; and on consideration I am unable to accept it. The loss to the appellants of the services of dredger No. 7 for a period exceeding the quarter of a year was the natural, necessary, and direct result of her collision with the Greta Holme , to whose fault the collision was solely attributable; and, in my opinion, there is no maritime or other rule which protects the owners of the offending ship against damages attendant upon results of that kind.The evidence of Mr. Lyster, assistant engineer to the appellants, shews that it would have been impossible to supply the place of No. 7 by chartering another suitable dredger. If it had been possible, and if the reasons assigned for the judgments under appeal are valid, that would not have been a justifiable proceeding on the part of the appellants, who, according to these reasons, were suffering no appreciable damage from the want of a dredger. According to these reasons, had they chosen to go to the expense of hiring, they would not have been entitled to recover a single sixpence of the hire paid by them from the respondents. That is, in my opinion, the logical result of the principles which have been followed by the Courts below in the decision of this case - principles which, if affirmed, would be very far-reaching. They seem to me to go this length: that a corporation who invest large sums of money in a dredger, or in any other article which they intend to use, and do use continuously, for purposes which are of interest to them, and protect the pocket of the ratepayers, although they are not productive of private gain, can recover from a wrongdoer the cost of repairing injury done to these articles, but are not entitled to recover damages from the person who deprives them of the use of such articles without lawful cause.Upon the whole matter I am of opinion that the appellants have succeeded in proving substantial and not merely nominal damage; and that opinion is not weakened by the fact that, owing to the enforced absence of No. 7 dredger, there was a deposit of silt which would not otherwise have accumulated, and which required to be removed after her return to duty. To this extent I agree with the observations of the learned judges, that the data for estimating the amount of substantial damage are not precise. In cases like the present that difficulty is sometimes inevitable and is of common occurrence; but it is a difficulty which can be easily and is often satisfactorily overcome by a jury under proper directions. Personally I have a dislike, which I have reason to believe is shared by other judges, to the task of assessing damage; but, having taken the whole facts and probabilities of the case into consideration, I have come to the conclusion that, in respect of the two items in question, the sum allowed to the appellants may be reasonably assessed, as your Lordship proposes, at 500l.For these reasons I concur in the judgment which has been moved by the Lord Chancellor.
Watson	Attorney General v Beech edited	My Lords, this is not according to my apprehension a very large question; it may be large in its scope, but it depends upon considerations which are very shortly stated in the statute which the appellants’ counsel seek to interpret. The arguments used in support of their contention have been very subtle, very ingenious, and on the whole, excepting in their result, very satisfactory; but I certainly do not see my way to placing upon any taxing statute so wide an interpretation as has been submitted for our approval by the present Attorney-General and his predecessor in office.I think the case lies exactly where my noble and learned friend on the Woolsack has stated it. The Act is one which grants to Her Majesty a right to taxation which is to be levied in the case of any person dying “upon the principal value of all property real or personal settled or not settled which passes on the death of such person.” Taking these words by themselves, the construction of the taxing clause would, I think, necessarily be somewhat more limited than follows from the terms of the next section, the 2nd section, which enlarges the scope of the clause. It apparently was anticipated that a court of law might place upon these words, “which passes on the death of such person,” a construction limited to property which passed in the ordinary sense of the term from the deceased into the possession and property of another person after his death. But the 2nd section of the statute widens that interpretation very much; for it extends it to all cases where a survivor of the deceased takes a succession, or I should say rather, derives a benefit by reason of the death of the deceased dependent upon and emerging upon the death of the deceased.My Lords, the present case is said to fall within sub-s. 1 (b) of that s. 2 . I only read the first part of it; the rest is inapplicable: “Property in which the deceased or any other person had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest.” Now, there are two points in that definition in regard to which the present case utterly fails. “Property in which the deceased or any other person had an interest ceasing on the death of the deceased” - that is an interest in him or her or another at his or her death which did not cease except with his or her lifetime. Now, with regard to the property in question here, it is a right of life-rent which was not in the deceased at the time of her death; she had parted with it months before, and accordingly, having so parted with it by a deed inter vivos, it follows that, in the words of the remaining part of the definition, no benefit accrued or arose by the cesser of her interest. Now it is said that the succession, the fee which was taken by the respondent, was taken by him under the settlement. That is true; but it was not taken by him in such circumstances as to render it a succession or interest which was liable to taxation under the Act with which we have to deal.My Lords, for these reasons (I do not require to say more) I entirely concur with the judgment moved by the Lord Chancellor. 
Watson	Burgess v Morton edited 	My Lords, before dealing with the points which require to be considered in this appeal, it is necessary to notice the circumstances giving rise to the action, and also the peculiar course of procedure which it has taken.On September 30, 1891, the firm of Bean & Gough, consisting of two partners, was dissolved by mutual consent upon the terms that Gough should continue the business, and should, in consideration of his being permitted to take over the bulk of its assets, relieve the retiring partner of the whole liabilities of the firm. Some time (it does not appear how long) before the date of the dissolution the respondent had a meeting with the two partners, at which he consented, in the event of its taking place, to assist Gough towards carrying on the business. He accordingly continued to deal with Gough, who traded under the name of C. H. Gough & Co., until the concern became bankrupt in July 1892. At the time of its dissolution the old firm was owing a considerable sum to the respondent.The appellant, who is trustee in the bankruptcy of C. H. Gough & Co., in December 1892 brought this action against the respondent for recovery of 1067l. 10s. 10d., as the balance due on his transactions with the bankrupt. The respondent resisted decree, mainly on the ground that he was entitled to set off against that balance the sum due to him by the old firm. The cause was set down for trial at York before the late Lord Chief Justice, when, there being no likelihood of its being reached, the parties, with the consent of the learned judge, agreed to withdraw it from trial, and to state a special case for the decision of the Court.In the special case the only matter which is professedly submitted for adjudication is the respondent’s contention to the effect that “he is entitled to set off the moneys owing to him from the said firm of Bean & Gough, at the date of the said dissolution of partnership, against the sum claimed on the writ.” The case accordingly concludes by stating the agreement of parties that, in the event of his contention being sustained, judgment should be entered for the respondent, with costs, and that it should be declared that he was entitled to prove against the bankrupt estate for 62l.; and that, in the event of its being rejected, judgment should be entered for the appellant for the sum of 836l. 11s. with costs.The facts and circumstances detailed in the case are not calculated, and were not intended, to raise directly any question of law. In the Courts below, and at your Lordships’ Bar, neither party attempted to conceal that the facts necessary in order to raise the law are not ascertained. They admitted that their primary if not their only object was to obtain a decision upon a question of fact, that question being, whether the statements in the case do or do not warrant the inference that the respondent had, before the bankruptcy of Gough, made an agreement which would entitle him to a set-off.The case was first submitted to a Divisional Court, composed of Wills and Wright JJ., who pointed out the incompetency and inexpediency of trying such a question by means of a special case, but expressed their willingness to do the best they could to decide it, if the parties desired them to do so. On that footing the learned judges heard the case, and gave judgment for the present appellant, upon the ground that the facts and circumstances stated were insufficient to warrant an inference that the respondent had made any agreement which could support his plea of compensation.That decision was brought by the respondent under the review of the Court of Appeal, who reversed it and gave judgment in his favour. The Master of the Rolls, with Lopes and Davey L.JJ., held it to be a matter of reasonable inference that, at his meeting with the partners before September 30, 1891, the respondent had, in fact, agreed, in the event of a dissolution taking place, to discharge Bean and to accept Gough as his sole debtor. The opinions delivered by the learned judges deal exclusively with that question of fact, upon which alone their decision was based. But the present appellant objected to the competency of their interfering with the judgment of the Divisional Court, which he maintained to be conclusive. The objection was, however, overruled. The Master of the Rolls, after adverting to the terms of the special case, said:“Whether it is necessary in those circumstances that a question of law should be raised, is a matter which it seems to me it is not necessary to decide in this case, because I cannot have a doubt but that there were some difficult questions of law raised in this case, as well as inferences of fact which were to be drawn, so that it is a special case under the ordinary circumstances of a special case, with power for the Court to draw inferences of fact.”I am unable to assent to the view thus stated by Lord Esher. It does not appear to me to admit of doubt that the judgment of the Divisional Court was substantially a consent order. I am also satisfied that the whole proceedings in the cause, from and after the time when the parties thought fit to retire from the proper tribunal for its trial, have been extra cursum curiæ. The rules which govern procedure on the common law side of the High Court of Justice do not contemplate or permit the use of a special case except for the purpose of obtaining the decision of questions of law arising upon facts which are admitted; and the consent of a judge to its use for the purpose of trying a question of fact cannot, although the fact when found might give rise to legal questions, make it a regular proceeding in the ordinary course of law. I think the consent of the judge in this case must be presumed to have been given on the assumption that the parties meant to raise directly some question of law, although it now appears that they entertained no such intention.There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a court below, pronounced extra cursum curiæ, is in the nature of an arbiter’s award, and that, as a general rule at least, no appeal from it will lie. An appeal was held, on that ground, to be incompetent in Craig v. Duffus1 ; Dudgeon v. Thomson2 and Magistrates of Renfrew v. Hoby . 3 All of these cases had the following features in common: (1.) The action had been remitted to the jury court by an interlocutor which was not subject to review; (2.) the parties had agreed, either before the trial commenced, or before the jury were asked to consider their verdict, to withdraw the action from jury trial, and to accept the decision of the Court, in one instance, upon a proof to be taken by commission, and in the others, upon the notes of the presiding judge and the productions made before him; and (3.) the Court referred to was a division of the Court of Session, so that the appeal was against the first and only decision which had been given upon the evidence. I may add, that all of these cases involved questions of law arising upon the facts, when these were ascertained.The subsequent decision of the House in Bickett v. Morris4 does not trench upon the authority of these precedents, although it establishes an exception in cases where the party holding the original judgment has stated no objection to an appeal from it to an intermediate court. In that case the action was one of the causes specially appropriated for trial by jury under the provisions of the Scottish Judicature Act of 1825 . Whilst it depended before the Lord Ordinary, and before the usual order was made, remitting it to the jury court, the parties agreed that it should be disposed of by the Court upon a proof by commission. The proof was taken and was reported to the Lord Ordinary, who, after hearing parties, assoilzied the defender. The pursuers then presented a reclaiming note, to the competency of which no objection was stated; and the second division recalled the interlocutor of the Lord Ordinary and gave judgment for the pursuers.The defender brought an appeal to this House against the decision of the second division, and was met by a preliminary plea of incompetency. After hearing a full argument upon the point, the Lord Chancellor (Lord Chelmsford), Lord Cranworth, and Lord Westbury unanimously repelled the plea, heard the appeal upon its merits, and affirmed the judgment appealed from. The Lord Chancellor said, “By taking the step of appealing to the Inner House, the pursuers, in my opinion, have precluded themselves from objecting that the interlocutor pronounced in their favour is not subject to all the consequences of other interlocutors, and, therefore, appealable to this House.” Lord Westbury observed, “Upon the question of competency, it must be understood that the decision of your Lordships proceeds upon its being personally incompetent to the respondents to raise that objection.”In my opinion, it necessarily follows from the rule laid down by the House in these cases, that the Court of Appeal were incompetent to entertain the respondent’s appeal to them, unless the appellant unreservedly submitted the determination of the special case, upon its merits, to their jurisdiction. So far from acquiescing in, he objected to the jurisdiction of the Appeal Court, and there can therefore be no reason for holding, as in Bickett v. Morris5 , that he is personally barred from now pleading the absolute finality of the judgment of the Divisional Court. In my opinion the House has, in these circumstances no jurisdiction except to reverse, as incompetent, the judgment of the Court of Appeal.I therefore concur in the judgment which has been moved by the Lord Chancellor.
Watson	Barnes v Ross edited	My Lords, this case comes before us in a very unsatisfactory shape. The appellant acted for nearly ten years as the guardian of the respondent, who is her only child. During that period she did not, as it was her plain duty to have done, keep tutorial or curatorial accounts, shewing the precise sums which from time to time were spent out of the income of the minor’s estate upon his education and maintenance. Unfortunately, the kindly relations which had previously subsisted between the mother and son ceased about the time of his attaining his majority—shortly after which he raised the present action of accounting. The investigations which have been made in the course of the action afford sufficient materials for ascertaining the amount of the expenditure upon the minor’s estate, which entirely consisted of land, and also the amount of the net income derived from it. But the family expenditure of guardian and ward had been massed together, and there are no materials for determining with anything like precision whether some of these outlays were or were not, at the time when they were made, meant to come out of the funds of the minor. I have difficulty in resisting the conclusion that there are various charges for which the appellant now seeks to take credit which, at the time when they were incurred, were not intended to fall upon the minor, and would in all probability never have been placed to his debit had it not been for their subsequent disagreement.I agree with the learned judges below in thinking that the presumption must in dubio be against a guardian who has failed to keep regular accounts; but I am of opinion, at the same time, that a guardian who has in other respects done her duty by the ward, is entitled, even in the absence of such accounts, to a fair and reasonable allowance out of the income of his estate. In estimating the amount of the allowance, the only test which occurs to me is to consider what sums would, in the circumstances of this case, have been allowed to the mother by the Court, or by an independent guardian, in respect of the minor being educated by her, and occupying along with her the principal residence upon his own property.Keeping that principle in view, I have come to the same conclusion with your Lordships in regard to the increased allowance which ought to be made to the appellant, in substitution for the annual sums with which she has been credited by the judgment of the First Division. After the observations which have been made by the Lord Chancellor, in which I concur, I do not think it necessary to state the considerations which have led me to that result. I only desire to explain that the allowance has been estimated with reference to the whole period of minority and then distributed, and that it does not necessarily represent what ought to have been the amount allowed for each particular year.
Watson	Jacobs v Scott And Co edited	I also prefer the judgment of the Lord Ordinary to that of Lord Trayner, which was concurred in by his brethren the Lord Justice-Clerk and Lord Young. After the elaborate way in which this case has already been discussed by the Lord Chancellor, I need not enter into the details of the case, but I may intimate at once that my judgment is founded entirely upon this ground, that according to my reading of the evidence, there was an implied term of the contract between Mr Jacobs and the Scotts that the hay supplied by the Scotts was to be answerable to the description “No. 1 export hay,” as that term or description is understood in the Glasgow market. Now, I do not think there is any doubt that when tried by that test the hay supplied by the respondents in this appeal was not conform to contract.The Lord Ordinary does not precisely deal with the question which has appeared to this House to be of importance—the only important question I should say that is raised by this appeal. A jury would have answered it very shortly, and certainly although it has cost the Court below very little trouble, it has occasioned a good deal of anxiety to the members of this House, and has been the subject of very exhaustive discussion. The Lord Ordinary does not altogether pass the subject by, although he does not treat it in a manner which is to my mind very satisfactory. His Lordship says, however,—“I lay stress on the hay having been intended for the Glasgow market, because Scott knew its destination, and all the witnesses are agreed that Glasgow is more exacting than other markets in allowing only a small proportion of clover.” Now, I do not quite understand why the Lord Ordinary or any other Judge should have laid any particular stress upon the fact that the hay was intended for the Glasgow market, unless it was introduced into the contract as a condition or as a collateral warranty. I can understand it on that ground, because in that case the person bound by the warranty was bound to fulfil it, but I cannot understand how, if it was not so connected with the contract, it could materially affect the contract or the quality of the hay that Scott was bound to supply. On the other hand Lord Trayner, and, I take it, the other members of the Second Division who concurred with him, declined to determine that question at all or to discuss it. I should not have adverted to the circumstance that they declined to discuss it had it not been for the ground upon which Lord Trayner excused himself from entering into the controversy. His Lordship says, after fairly stating the case to be tried,—“This is not supported by the contract. It mentions Glasgow as the place of delivery, but it does nothing more.” Then his Lordship adds,—“If it had been intended to contract that the hay should meet the requirements of any particular market or any particular purchaser, that should have been stipulated.” I apprehend those words to mean that it should not only have been stipulated, but that the stipulation should have appeared upon the face of the contract. No doubt the doctrine exists that you cannot contradict a contract, but it is out of the question to say, since the passing of the Sale of Goods Act, 1893 , that you cannot go outside the terms of a contract and consider what was actum et tractatum at the time it was entered into. I think when the circumstances are fully considered in this case the result is that which the noble Lord on the woolsack has arrived at, and I therefore agree with him that the interlocutor appealed from ought to be reversed.
Watson	Black v Clay edited	The appellant, who is proprietor of the farm of Winfield, in the county of Berwick, in May, 1891, obtained a decree ordaining the respondent to remove from the houses (with the exception after mentioned), grass and fallow land, at the term of Whitsunday, 1892, from the arable land at the separation of the crop of the same year from the ground, and from the barns and barnyard and two cot-houses at Whitsunday, 1893. The respondent was tenant under a lease which commenced in 1860. The original term of the lease was for nineteen years; but it was extended for thirteen years beyond that period, by tacit relocation. The decree of removing was in conformity with the stipulations of the lease in regard to entry and ish. The farm was thereby let “for the space of nineteen years from and after the entry of the said John Clay, which, notwithstanding the date or dates hereof, is declared to be to the houses (with the exceptions after mentioned), grass and fallow lands on the 26th day of May in the year 1860, to the arable land in corn crop at the separation of the crop of the same year from the ground, and to the barns and barn-yard and two cot-houses at Whitsunday, 1891, from these periods respectively to be possessed by the said John Clay and his foresaids during the space above written.” It is, in my opinion, material to notice, that the three portions of the entire farm, for which different times of entry are assigned, are each of them set “in tack and assedation,” and are to be possessed by the tenant, for the full period of nineteen years from and after their respective dates of entry.Sect. 2 of the Agricultural Holdings (Scotland) Act, 1883 (46 & 47 Vict. c. 62) , confers upon a tenant of agricultural or pastoral lands, “on quitting his holding at the determination of a tenancy,” the right to obtain from his landlord compensation for certain improvements. It is provided by sect. 7, that a tenant shall not be entitled to compensation under the Act, unless “four months at least before the determination of the tenancy, he gives notice to the landlord in writing of his intention to make a claim.”The respondent quitted possession of the houses (with the exception of the barns, barn-yard, and two cot-houses), and also of the grass and fallow lands, at the term of Whitsunday, 1892. He thereafter, on the 6th day of June, 1892, gave the appellant notice of a claim for improvements under the provisions of the Act of 1883, which notice was followed by an application to the sheriff for the appointment of a referee, in terms of sect. 2 of the Agricultural Holdings (Scotland) Act, 1889 (52 & 53 Vict. c. 20) . The appellant then instituted the present process of suspension and interdict before the Court of Session, in order to restrain all further procedure towards the assessment of compensation, upon the ground that the notice served upon him did not comply with the requirements of the 7th section of the act of 1883.The Lord Ordinary (Low) refused the interdict; and his decision was unanimously affirmed by the learned judges of the First Division. In the Outer house, the appellant maintained that the actual date at which the last of the respondent’s crop of 1892 was separated from the ground constituted the determination of his tenancy, within the meaning of the statute; and he contended that a proof ought to be allowed for the purpose of fixing that date. The Lord Ordinary held that such inquiry was unnecessary, being of opinion that the term of Martinmas must be taken as the ish, for the arable lands under crop in the year 1892. His Lordship said:“I think that an ish at the separation of the crop is practically a Martinmas ish. The rent of a farm is due for the crop and possession of each year separately, and the term of Martinmas is regarded as the end of one crop year and the beginning of another. It is assumed, on the one hand, that the crop will be secured by Martinmas; and on the other hand, the tenant has up to Martinmas to secure the crop. No doubt, if the crop is secured before Martinmas, the incoming tenant could not be refused access to the land for the purpose of ploughing, but the outgoing tenant is entitled to exercise his discretion as to the most suitable time for gathering the harvest; and accordingly it is not uncommon that the ish and entry of arable land is made ‘at the separation of the crop or Martinmas,’ the two terms being used as synonymous.” When the case went to the Inner House, the appellant adopted a new line of argument. He there maintained that the possession had by the respondent after Whitsunday, 1892, for the purpose of reaping and ingathering his crop, did not constitute tenancy, but merely amounted to a privilege accorded to a tenant by the common law, which was not altered in legal character by its introduction into the lease in the form of a stipulation. That was also the chief, if not the only, argument submitted for the appellant at your Lordships’ Bar; and it was mainly rested upon the decision of this House in Wight v. Earl of Hopetoun 15 . In that case the lease expired, as to houses and grass, at Whitsunday, and, as to arable land under crop, at its separation, the landlord being under an obligation to grant a new term, upon a notice, by the tenant demanding renewal, “at least twelve months before the expiry of the above term of nineteen years.” The only question was, whether the specific term of nineteen years, which the contracting parties had in view, was to run from the Whitsunday of entry to the Whitsunday of ish, as to houses and grass, or from the later date of entry to the arable lands till the time of the tenant leaving them. It was held by the House, affirming the judgment of the Court of Session, that Whitsunday was the term which the parties contemplated for the expiry of the nineteen years, and that the tenant, having failed to give notice twelve months before that term, was not in a position to demand a renewal of his lease.I cannot regard the decision in Wight v. Earl of Hopetoun 16 as establishing the principle contended for by the appellant, which appeared to me to be this: that no words of demise will be sufficient to create a tenancy of arable lands under crop, after houses and grass lands are surrendered to the landlord, so long as the demise is made for the sole purpose of enabling an outgoing tenant to tend his crop, and reap it at maturity. The proposition is, to my mind, not altogether intelligible, because the quality of the possession had by an outgoing tenant of land under crop, after he has flitted from houses and grass lands at Whitsunday, differs, so far as I am aware, in no single particular from the possession of lands under crop which he had enjoyed during the previous years of the lease, which was admitted to be possession under his tenancy. No such general question was really involved in the decision of Wight v. Earl of Hopetoun 17 . That it was not the intention of the noble and learned Lords who gave judgment in that case to negative the possibility of a double ish, one for houses and grass, and another for land under crop, appears from the judgment of Lord Wensleydale, who said 18 :“If it is a lease with a double termination, one for the houses and grass land, and the other for the arable, I am clearly of opinion that the majority of the judges have come to the right conclusion.” The leading judgment in this case was, in the First Division, delivered by Lord M’Laren. The Lord President concurred in the views expressed by his Lordship, and in the additional observations which were made by Lord Kinnear. Lord M’Laren was of the same opinion with the Lord Ordinary in regard to the proper construction of the time indicated in the lease as the separation of the way-going crop from the ground. Upon that point his Lordship observed:“The reason why the expression ‘separation of the crop’ is used in the clauses relating to entry and removal, is that the incoming tenant may have access to each field as soon as its crop has been ingathered, and shall not be liable to be kept out of possession by a troublesome outgoing tenant in the assertion of a theoretical right to retain possession until Martinmas. But this construction is quite consistent with Martinmas being the autumnal term, wherever it is necessary that something to be done in fulfilment of the lease should be referred to a definite day—payment of rent being a clear case in point. I have therefore no difficulty in holding that, where notice has to be given, four months before the autumnal term, the term of Martinmas is the time from which the period of four months is to be reckoned.” I entertain little doubt that the contract embodied in the lease before us makes effectual provision for three terms of entry, and three terms of ish, in regard to different portions of the subjects let; and that, until the arrival of each term of ish, a proper right of tenancy exists with respect to such part of the subjects let as the tenant is bound to quit possession of at that term. I am also of opinion with the learned judges of both Courts below, and for substantially the same reasons, that, in cases like the present, the expression “separation of the crop” ought to be read as signifying the term of Martinmas. I venture to think that, whether tested by reference to their popular meaning, or to their legal effect, “separation of the crop” and “the Martinmas term” are equivalent expressions when they occur in a Scotch lease. When the arable ish is Martinmas, the outgoing tenant could not prevent his successor from ploughing, before that term, land from which his crop had been removed; nor, in the case of a late harvest, could his successor prevent him from reaping his crop after the term. And, in my opinion, whichever of these expressions be used in the lease, it must be taken to mean the actual term of Martinmas, in all cases where the contractual rights of landlord or tenant are made to depend upon their giving a previous notice. Upon any other interpretation, many conditions, to be performed after Whitsunday at a time previous to, and dependent Upon the date of the tenant’s removal from lands under crop, would become inextricable.Assuming the right construction of the lease to be that which I have indicated, the question still remains, which of the three periods of ish ought to be regarded, for the purposes of this appeal, as the determination of the respondent’s tenancy within the meaning of sects. 2 and 7 of the Act?The definition which the Act gives of the expression “determination of tenancy” is not definitive for all purposes. It is defined (sect. 43) as meaning “the determination of a lease by reason of effluxion of time, or any other cause.” That explanation affords no aid in ascertaining whether the punctum temporis from which the time for giving a notice, to be calculated retro, is the first, the second, or the last term of removal. That is a question which, in my opinion, must be decided according to the nature and object of the notice; and I can detect no inconsistency in holding that, in one section of the Act requiring notice, the beginning of removal, and that in another the final removal of the tenant may be contemplated.In this case I have come to the conclusion that the “determination of a tenancy,” as that expression occurs in sects. 2 and 7 of the statute, refers to the time when the tenant finally gives up possession of the subjects which in the statute are described as his “holding.” Sect. 2 is framed upon the assumption that his quittance of his holding and the determination of his tenancy are to be, in point of time, co-incident. A holding which entitles the tenant to the benefit of its provisions must, according to sect. 35 of the Act, be “either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral.” The respondent’s holding, in so far as it consisted of lands in crop after Whitsunday, 1892, was agricultural, and that is, in my opinion, sufficient for the disposal of this appeal. But I entertain serious doubts whether, after his removal in the autumn of 1892, the respondent remained in possession of any holding within the meaning of the Act. I do not think that the bare possession of a barn, barn-yard, and two cot-houses, unconnected with any land either pastoral or agricultural, is possession of a holding recognised by the Act. That view of its provisions does not appear to me to be in the least inconsistent with the main object of the Act, which obviously was to confer certain benefits upon an outgoing tenant. He can have no practical difficulty in intimating his claim of compensation for improvements four months before Martinmas. To postpone that intimation until four months before the following Whitsunday, when he cedes possession of subjects neither agricultural nor pastoral and not required for any purpose connected with lands agricultural or pastoral, would, in my opinion, be unnecessary, and would suspend for six months his right to recover moneys which he had previously expended for the benefit of his landlord or successor in the tenancy. Not only so, but in so far as concerns the bulk of the statutory improvements specified in part 3 of the schedule, to which the consent of the landlord is not required, it would be difficult, if not impossible, for the landlord to check, or for an arbiter to assess satisfactorily the amount of the tenant’s claim, if the time for giving notice were extended to the 15th of January following the tenant’s removal from lands under crop.For these reasons I am of opinion that the interlocutors appealed from ought to be affirmed with costs.My noble and learned friend Lord Shand, who heard the argument in this appeal, is unable to be present to-day; but his Lordship has requested me to state that the opinions which I  have expressed have been carefully considered by him and have his entire concurrence. 
Watson	Bray v Ford edited 	My Lords, I shall endeavour, without recapitulating the facts of this case, to indicate the considerations which have led me to differ from the conclusion arrived at by the learned judges of the Appeal Court.The error committed by the presiding judge consisted in his directing the jury that the respondent, as a governor of the Yorkshire College, was legally justified in charging and accepting payment of full professional remuneration in respect of services rendered by him to the college in his capacity of solicitor. Your Lordships can entertain no doubt that the respondent was neither entitled to charge profit costs in respect of these services, nor to retain them when received by him. Such a breach of the law may be attended with perfect good faith, and it is, in my opinion, insufficient to justify a charge of moral obliquity, unless it is shewn to have been committed knowingly or with an improper motive.Order XXXIX. r. 6 of the Supreme Court Rules makes it imperative that a new trial shall not be granted on the ground of misdirection, unless, in the opinion of the Court, “some substantial wrong or miscarriage has been thereby occasioned in the trial.” I think it is clear that the misdirection given by Cave J. at the trial was such as to occasion a miscarriage in the sense in which that word was understood by the legal profession at the time when the Rules of 1883 were framed. The only question, therefore, which your Lordships have to consider is, whether the miscarriage has been substantial within the meaning of the order.Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal. In the present instance the case made in evidence by the appellant was not submitted to the jury. The whole imputations in his letter of February 26, 1894, which are said to be libellous, arise out of and are strung upon the allegation that the respondent’s acceptance and retention of full remuneration for the professional services rendered by him to the college were in violation of the law. The text or basis of these imputations was, in point of fact, true; but the case went to the jury on the footing that it was false. It is plain that the learned judge did not regard its falsity as an immaterial feature of the case which the jury had to consider. He told the jury: “In my judgment he” (i.e., the respondent) “was not making a profit illegally or improperly, and if it was not illegal or improper, of course Mr. Ford could not know that it was either; and that does impute to him conduct which, if it were true, would no doubt tend to lower him in public estimation, and properly so tend.”I have already indicated my opinion that the illegality of the respondent’s conduct would not necessarily justify a charge of acting improperly if the impropriety imputed meant anything more than illegality; and I agree with the learned judges of the Appeal Court in thinking that, assuming illegality, there are other imputations in his letter which might sustain a verdict against the appellant. I do not profess to know all the considerations by which juries are influenced in arriving at their verdict; but it does appear to me that, in assessing damages, a jury might reasonably take into their consideration whether the charge upon which libellous imputations were made by way of comment was or was not in itself a libel. In the one aspect, the appellant’s letter conveyed a wholly baseless and libellous charge; in the other, a well founded accusation, followed up by language which conveyed other and libellous imputations. I do not feel myself in a position to affirm that, in each of these cases, the same jury would have awarded the same sum of damages. I could not possibly arrive at that conclusion without first assessing the damages in each case for myself; and that is a duty which, in my opinion, I ought not to undertake in a case like the present. In such a case the assessment of damages does not depend upon any definite legal rule, and is the peculiar function of the jury, by whom the party liable is entitled to have the measure of his pecuniary liability determined.For these reasons I have come to the conclusion that there has been a substantial miscarriage within the meaning of Order XXXIX. r. 6, and that the case must be remitted for a new trial. I have purposely abstained from suggesting any general rule applicable to the construction of Order XXXIX. r. 6. I doubt the possibility of formulating any rule which would be useful, and I do not doubt the inexpediency of making the attempt. Each case must depend upon its own circumstances.My noble and learned friend Lord Macnaghten, who is unable to be present, has requested me to state that he concurs in the views which I have expressed.
Watson	Midland Railway Co v Edmonton Union edited 	My Lords, this is a suit by the appellant company for recovery of certain costs to which they were found to be entitled by the Court of Quarter Sessions on the 13th of July 1892, in an appeal at their instance against the assessment committee of the Edmonton Union. The duty of paying these costs was imposed upon the respondents in this appeal by sect. 3 of 27 & 28 Vict. c. 39 , and the only question arising for your Lordships’ decision is, whether they have been relieved of that liability, and the appellants’ claim extinguished, by the provisions of sects. 1 and 4 of the Act 22 & 23 Vict. c. 49 .The clerk of the peace at first declined to tax the appellants’ costs, on the ground that there had been no consent to taxation out of court; but he eventually did so, in obedience to an order of the quarter sessions, on the 26th of January 1893. As soon as his taxation was completed, he issued to the appellants an order, bearing date the 13th of July 1892, directing the taxed amount to be paid within fourteen days after service of the order, or a copy thereof. That order was duly intimated to the present respondents on the 22nd of February 1893; and they, on the 25th of the same month, gave notice to the appellants that they would treat the order as null and void. It has now been decided elsewhere, and must be assumed, that the taxation was regular, and that the order was binding on the respondents.In the Courts below, and in the argument of this appeal, the question was discussed whether the order pronounced by the Court of Quarter Sessions on the 13th of July 1892 was in itself sufficient to create a debt, claim, or demand due by the respondents, within the meaning of sect. 1 of the Act of 1859. If so, it was payable by the respondents within the half-year ending on the 29th of September 1892, or within three months thereafter. On the other hand, if no debt, claim, or demand was in the sense of the statute constituted until costs were taxed, and an order issued for payment of the taxed amount, the appellants’ claim became payable by the respondents within the half-year which expired on the 25th of March 1893, or the three months immediately following that date.Whether the one or the other of these views were adopted, the result of this appeal would, in my opinion, be the same. But I am not prepared to affirm that the appellants were between the 13th of July 1892 and the 26th of January 1893 in right of a debt, claim, or demand, due and payable by the respondents within the meaning of the Act. I think the order made by the Court of Quarter Sessions on the former of these dates was in substance and of necessity nothing more than a finding that the appellants were to have an order for payment of their costs as and when the same should be taxed. Until the amount was ascertained by taxation, there was no debt of which the appellants could legally demand payment, or which the respondents were either bound or in a position to discharge.The object of the two clauses in the Act of 1859 already referred to is very plain. It is to protect persons subsequently becoming ratepayers in the union from the burden of debts which had been incurred, and ought in due course to have been paid by their predecessors. The effect of the clauses, when read together, is in the first place to impose upon the guardians a statutory obligation to pay, in each half-year, or within three months after its expiry, the whole debts, claims, and demands, which have become due or have been incurred by them during that half-year; and in the second place, in the event of the guardians’ failure or refusal to make payment, to extinguish the right of the creditor in such debts, claims, and demands unless he shall within the period thus limited have commenced proceedings in a competent court, and shall with due diligence prosecute the same to judgment or any final settlement. Power is given to the Poor Law Board to extend the time within which payment is to be made for a period not exceeding twelve months from the date of the debt, claim, or demand.In this case no extension of time has been allowed by the Poor Law Board. In order to save their claim of costs from extinction, it was therefore incumbent upon the appellants to institute proceedings on or before the 25th of June 1893. It is admitted that the appellants did not commence proceedings for that purpose before the 29th of June 1893, when they applied for and obtained from Wills J. an order under sect. 18 of 12 & 13 Vict. c. 45 , removing the order of the Court of Quarter Sessions into the Queen’s Bench Division of the High Court of Justice. It does not appear to me to admit of doubt that before the application was made their claim against the respondents had been cut off by the provisions of the Act of 1859.I may add that, on the assumption that the appellants’ claim for costs became due and payable by the respondents during the half-yearly period which terminated on the 29th of September 1892, or within three months thereafter, their present suit appears to me to be equally untenable. The only proceedings which they took during that period were towards the taxation of their costs; and these, in my opinion, were not such proceedings as the Act contemplates. They were not proceedings capable, as the Act requires, of being prosecuted to final judgment.For these reasons, I concur in the judgment which has been moved by the Lord Chancellor.
Watson	Naismith v Boyes edited	 My Lords, on December 22, 1891, the late James Hamilton made a mortis causâ settlement by which he conveyed to trustees the whole estate heritable and movable of which he had power to dispose. He had at that time a second wife, now the respondent Mrs. Boyes, and two living children of the second marriage, a daughter and a son. He had also one child by a former marriage, now the appellant Mrs. Naismith, for whom he had already made a provision of 3000l., as recited in his settlement.By the terms of this settlement Mr. Hamilton directed his trustees to pay the free annual income of the whole residue of his estate to his widow, for her alimentary life-rent, to be restricted to one-half of the free income in the event of the widow entering into another marriage. After the fulfilment of these purposes the trustees were directed to hold the residue for behoof of the children of the testator’s second marriage and the issue of such as might predecease until the youngest of the children had attained the age of twenty-one years; and, upon that event, to divide, pay, and convey the residue of the estate among the children of the second marriage, “and that equally among such children then surviving and the issue of such as may have predeceased, per stirpes, that is such issue taking only the share which their parents would have taken if in life.” The settlement contained no destination over of the residue in the event of the failure of the children of the second marriage or their issue before the period appointed for distribution.The settlement also contained the following declaration, which has been the occasion of controversy in this case:“And I declare the provision hereby made for my wife and the children of our present marriage and the provisions previously made for the said Minnie Arthur Hamilton (the present appellant) to be in full of all that my said wife can claim in name of terce, jus relictæ, or otherwise, and of all that my said children can claim in the name of legitim, portion natural, bairn’s part of gear, or otherwise in respect of my death.”The testator died on January 29, 1892, survived by his wife and by the children of both marriages. The children of the second marriage died in pupillarity upon May 14 and 20, 1892. The widow was married to her present husband upon July 8, 1896, and thereupon her interest in the free income of the residue became in terms of the settlement restricted to one-half. The appellant and the respondent after the testator’s death accepted the provisions which had been made for them respectively which were declared by the settlement to be in full of their legal claims.In July, 1897, the appellant and the respondent concurred in stating a special case for the opinion and judgment of the First Division of the Court of Session to which the trustees of the testator were formally made parties, but not as claimants. The estate submitted to the jurisdiction of the Court consisted of one-half of the free residue of the trust estate in which the respondent had lost her alimentary right of life-rent upon her re-marriage in July, 1896. The respondent (1.) maintained that by the terms of the settlement the whole residue vested a morte testatoris in her two children, and that she succeeded on their deaths successively to one-third of their interest; and (2.) in the alternative, that on their deaths the residue, in so far as not affected by her life-rent, fell into intestacy, and that accordingly she was entitled to her legal rights of terce and jus relictæ therein.The appellant, on the other hand, contended that her own claim of legitim and the respondent’s claims of terce and jus relictæ were effectually barred by the terms of the clause already quoted from the settlement, and by their subsequent acceptance of the provisions respectively made for them by the testator; and that the appellant was therefore entitled, as the sole heir ab intestato of her father, to take the half of residue which had been set free by the restriction of the respondent’s alimentary life-rent.The residue held by the trustee of the deceased consists of a house and small leasehold property, together about the value of 1600l., and of personal estate amounting to 5407l. 3s. 5d. It is not stated in the special case that the testator died infeft in the heritable property; but the Court, apparently without objection by the parties, have proceeded upon the footing that he was so, and that the widow’s claim of terce was, if not barred, as the appellant maintains, well founded.The judgment of the First Division was delivered on May 27, 1898, by Lord M’Laren, with the concurrence of the Lord President (Lord Robertson), Lord Adam, and Lord Kinnear. Their Lordships negatived the respondent’s contention that the residue had vested in the two children of the second marriage; and, as neither of the parties to this appeal has attempted to disturb the finding, I do not think it necessary to say more than that I agree with it. By their interlocutor 7 they affirmed (1.) that “the whole residue passed to the testator’s heirs in intestacy as at the date of his death,” and (2.) that the respondent, the testator’s widow, is entitled to her legal rights of terce and jus relictæ out of any estate which may have fallen into intestacy, in addition to the life-rent provision conferred upon her by the settlement. Their Lordships have thus distinctly affirmed that the legal claims of the respondent are not barred by the clause of the settlement already referred to; but their interlocutor does not make the same affirmation with respect to the appellant’s claim of legitim. So long as the respondent only takes one-third as jus relictæ, it is not material to the appellant, in so far as the movable estate is concerned, whether she takes in the capacity of her father’s heir, or in the double capacity of his heir and of a child entitled to legitim. If the appellant’s right of legitim was barred, and the respondent’s legal claims were not, the result would be that the respondent would take one-half instead of one-third share of the movable estate. The reasons which the learned judges have assigned for holding that the respondent is not barred from claiming her legal rights apply with the same force to the appellant.The legal claims of the widow and children are not, strictly speaking, rights of succession, and they infer no representation. They are in the nature of debts, which attach to the free succession after the claims of onerous creditors have been satisfied. Hence, it has been frequently said judicially that, in respect of their legal claims, the widow and children are heirs in competition with onerous creditors, and are creditors in competition with heirs. The widow’s terce is one-third of the income of the heritage in which her husband died infeft. Her jus relictæ is one-third of the corpus of his movable succession, when he is survived by children, and when he leaves no children is one-half. The legitim, in like manner, is one-third when there is a surviving widow and one-half when there is not. The other third or half, as it may be, of the movable succession descends, by right of inheritance, to the heir or heirs ab intestato of the deceased.The Lords of the First Division have based their judgment in substance upon the ground that the clause declaring the provisions respectively made by him in favour of the respondent and the appellant to be in full of their legal claims has exclusive relation to property passing by mortis causâ disposition from the testator, and that it has no reference to, and does not affect, property which he attempted to dispose of by will, and which has fallen into intestacy by reason of the failure of the objects of the bequest. At the hearing of the appeal I entertained doubts whether that conclusion could be justified; but since that time I have had an opportunity of considering the question, and I am satisfied that, whilst the decision of the Court below does not run counter to any authority which I have been able to find in the law of Scotland, it is in accordance with sound principle.In a case like the present, where the testator settled upon the members of his family all the property, both heritable and movable, of which he was possessed, I do not think it can be reasonably assumed, in the absence of any provision to that effect either express or implied, that he intended to regulate the disposal of any part of his estate which might possibly lapse into intestacy. In my opinion the testator, when he inserted a clause in his settlement barring the legal rights of the appellant and respondent, had no object in view except to protect the settlement, by preventing the enforcement of these claims to the disturbance of his will and to the detriment of the beneficiaries whom he had selected. When accordingly, by the premature decease of his children of the second marriage, the residue provided to them by his settlement became intestate, I do not think it can be held that the testator contemplated, or intended, that the exclusion of the legal rights of his widow and surviving child should any longer remain operative. I have, therefore, come to the conclusion that, in the events which have occurred, the property destined by the will to the children of the second marriage, whilst still affected to the extent of one-half of its income by the provisions of the will, devolved upon the legal heir of the testator subject to the legal claims of his widow and children which would have been competent if he had died intestate.It must, I apprehend, in all cases be a question of circumstances how far a testator, who has in his settlement excluded the legal claims of his widow and children, intended that exclusion to operate. He may expressly declare, or it may appear by plain implication from the terms of the instrument, that he intended the provision to operate, not merely in favour of persons taking under the will, but also in favour of his heirs succeeding in the event of intestacy. There may be, and there frequently is, a general scheme of settlement of a man’s whole property which contemplates that some relatives shall, upon his decease, take the interest which the law gives them as heirs ab intestato, and that others shall take the provision which the deceased has made for them. It is unnecessary for the purposes of this case to consider what would be the effect of an express provision to the widow or to one child coupled with an exclusion of their legal claims. The exclusion would certainly operate in favour of all those beneficiaries who took provisione of the deceased, and it would also operate in favour of those taking ab intestato if it were reasonably apparent that denying effect to it would disturb the scheme which the deceased contemplated.The learned judge who delivered the opinion of the Court by some oversight made use of the expression, “There are no heirs or personal representatives other than the wife and children.” I need hardly explain that the widow is neither the heir nor the personal representative of her husband. The child, on the other hand, in so far as it has a claim of legitim, is a creditor and is not the heir of its father, but has besides a right of inheritance. The father may in various ways exclude its claim of legitim, but he cannot take away its right of inheritance except by making an effectual conveyance or bequest of his estate to another. With these observations I concur in the opinion of the learned judge, and in his conclusion “that the residue in so far as consisting of personal estate is subject to the usual threefold division, and that the residue of the heritable estate is subject to terce.” Although the questions submitted in the special case do not expressly raise the point, I think the interlocutor ought to contain a declaration that the appellant is entitled to her legitim.I have not thought it necessary to refer to Pickering v. Earl of Stamford8 , Gurly v. Gurly9 , or to any of the other English cases which were cited by the Lord Advocate in his argument for the respondent. These authorities, although they may have an apparent affinity to, do not directly bear upon the question raised in this appeal, which relates to the sense in which certain expressions were used by a Scottish testator, having due regard to the nature of the rights with which he was dealing as these exist in the law of Scotland. The rights given to an English widow by the Statute of Distributions differ materially from a Scottish widow’s claims of terce and jus relictæ, and an English child possesses no right analogous to a Scottish child’s claim of legitim. I am of opinion that the interlocutor appealed from ought to be affirmed with the declaration that the appellant’s (Mrs. Naismith) right to have her claim of legitim satisfied out of the fund in medio is not barred by the terms of her father’s settlement. In terms of the agreement embodied in the special case both parties must have their costs of this appeal out of the funds in medio.
Watson	Ogston v Aberdeen District Tramways Co edited 	My Lords, I also am of opinion that the method practised by the respondents of clearing and keeping open their tramway rails whenever there is a fall of snow is attended with injurious consequences, amounting to a legal nuisance, to those members of the public who have occasion to use the streets of Aberdeen for horse traffic. The evidence shews that on these occasions their first step is to clear their track, which is laid along the centre of the street, by means of a snow-plough - an operation which increases the deposit of snow upon the other parts of the street. Their next operation, which is repeated from time to time, is to scatter salt upon their rails and in their vicinity, the object of which is to prevent snow or snow-water from freezing in their grooves. The snow and salt in combination form a wet, briny amalgam, which does not freeze, although its temperature is considerably below the freezing point of water. The briny slush so produced is left on the street, and in course of time it gradually permeates a large portion and sometimes the whole of the street. It is, in my opinion, amply proved that the mixture thus diffused is injurious to horses standing or moving in it, and that its saline element has a direct and noxious effect of its own, if the skin of the animals coming in contact with it has been perforated or abraded.The respondents have endeavoured to justify these proceedings by advancing a series of propositions, ingenious if not altogether consistent, which I shall notice in detail.The first of these, which is the only defence stated by them in the record, upon the assumption that the allegations of the appellant have been established, is to the effect that their operations in clearing and keeping clear their lines are “within their statutory rights.” That plea, if well founded, would necessarily afford a good answer to the appellant’s prayer for interdict. But neither the provisions of their special Act, nor those of the general Tramways Act of 1870 , bear out that contention. Some statutory privileges they do possess which the law does not accord to the general public. They have the right to lay down and to maintain their grooved rails upon the public streets, and to use these rails for the passage of their tramway cars, to which, seeing that they cannot be deviated from the track, other vehicles meeting or passing must give precedence. But the respondents’ use of their track is in no other sense exclusive. Any other vehicle, which does not run on flanged wheels, may use the track and the rails as freely as any other part of the street, whenever and so long as these are not actually occupied by the respondents’ cars. Beyond the possession of these privileges, which are all that the statutes confer upon them, the respondents are in no better position, and have no higher right, than the appellant and other persons who use the public highway.The respondents’ next proposition was that, even if the operations complained of have not been expressly licensed by the statutes, they are sanctioned by implication, because they are necessary in order to the efficient carrying out of the purposes for which the respondents were incorporated by the Legislature. It was argued that tramway undertakings are authorized by the Legislature in the interest and for the accommodation of a large class of the community, who would be deprived of that accommodation, at times when they most require it, if the respondents were prevented from using the only means by which they can keep their tracks open, and maintain a regular tramcar service during times of snow. The answer to that argument appears to me to be obvious and conclusive. In the first place, the statutes give the respondents no right to create a nuisance, and they have no such right at common law. In the second place, it is not shewn that the nuisance complained of is in any sense necessary. Whilst I have little doubt that there may be other methods equally effective, I think the evidence very strongly suggests that the use of salt is involved in the only known methods which combine cheapness with efficiency. The experience of other cities appears to me to point to that result. But the same experience clearly demonstrates that salt may be effectively employed without occasioning a nuisance. Its injurious consequences may be obviated by the simple expedient of removing from the street, immediately or within a reasonably short time after the application of salt, both the snow and the brine which transforms it into slush. It would, in my opinion, be extravagant to suggest that what can be done and is done, either by the street authority or by the combined action of that authority and the tramway company, in Edinburgh, Glasgow and Dundee, becomes an impossibility in the city of Aberdeen.In the next branch of their argument the respondents accepted, but without admitting, the foregoing conclusion, their object being to shift the origin of the nuisance from themselves to the town council of Aberdeen. They maintained, upon that footing, that their use of salt does not necessarily lead to a nuisance, and that any nuisance which may thereby be created is entirely due to the fact that, after salt has been applied, the briny slush which it produces, and the snow which it may come in course of time to affect, are not removed with sufficient expedition. If they were, no injurious consequences would follow. Then it was maintained that the duty of removal rested with the town council as the street authority, and that they were chargeable with the creation of the nuisance, which resulted from their want of alacrity in the performance of their statutory duty. I see no reason to doubt that the town council, as constituting the road authority, are charged with the removal of snow from the streets under their jurisdiction whenever the fall is so heavy as to obstruct traffic; but I am unable to come to the conclusion that their dilatoriness in the performance of that duty will relieve the respondents of responsibility for the consequences of their own operations. The nuisance is ultimately and mainly due to the employment of salt, which is used by them and not by the town council. If they choose to employ means which, if certain precautions are not observed, will lead to nuisance, they must first ensure that these precautions will be taken. The town council are under no obligation, statutory or otherwise, to counteract the illegal proceedings of the respondents, and it is by no means clear that their delay in removing snow would create any nuisance; whilst it seems certain that, if it had that effect, the nuisance would be of a character different from and less aggravated than that which is complained of.The last proposition submitted on behalf of the respondents is formulated by the second branch of the fourth reason in their appeal case, which is as follows: “Because the operations of the respondents are in themselves legal, and are sanctioned by the street-cleansing authority.” In the record there is not to be found either a statement of fact, or even a plea in law, calculated to raise the latter contention. The practice, which is becoming too common, of submitting for the consideration of this House points of controversy involving matters of fact, which have neither been pleaded nor sent ta proof in the Court below, is not a commendable one. In the present instance the respondents have this excuse to offer - that the fact of the town council having either authorized or acquiesced in these operations, although it was neither pleaded nor remitted to probation, has been accepted and relied on both by the Lord Ordinary and by the Second Division of the Court, upon evidence which was not directed to the point.The Lord Ordinary (Lord Low), after intimating an opinion that what the respondents have done “is to clear a part of the streets of snow with the acquiescence and approval of the town council,” comes ultimately to the conclusion “that it is sufficient for the decision of this case that the town council have come to be of opinion - and I see no reason to doubt that the opinion has been formed honestly and after due consideration - that it is, upon the whole, in the public interest that the respondents should be allowed to do a part of the work of clearing the streets, by sending the snow-ploughs along the tramway lines, and melting the snow not removed by the ploughs by means of salt. And that that view is not an unreasonable one is, I think, shewn by the fact that the same practice is adopted in Edinburgh, Glasgow, and Dundee.” His Lordship omits to notice, that the practice of clearing snow from tramway rails which is followed in Aberdeen differs from that which obtains in Edinburgh, Glasgow, and Dundee in this essential respect - that in these cities it is carried on under conditions which practically obviate all risk of nuisance.In like manner, the Lord Justice-Clerk, who delivered the opinion of the Second Division, consisting of himself, with Lords Young and Trayner, observed: “If we were here to express our own opinions as to the propriety of using salt upon the streets, I for one would have very little difficulty in expressing my opinion most emphatically against such a proposition. But we are dealing here also with what is done necessarily under the sanction of the public authority of the place; and if they are of opinion that the only reasonable way of getting the street cleared so as to allow that traffic which Parliament has sanctioned to be kept in operation, I do not think we are the judges at all of whether they are right in that matter or not.” Again, in the same connection, his Lordship said: “They” (i.e., the town council) “have the responsibility and duty imposed upon them by the ratepayers of seeing that the roads are properly managed in all circumstances to the best of their ability. If the inhabitants of Aberdeen are of opinion that their affairs in that matter are being mismanaged by the corporation they have the remedy in their own hands.” The last remark is hardly to the point. The streets of Aberdeen are open to all the inhabitants of the realm, who have the same rights of user as the ratepayers themselves; and it is not a matter of course that the persons aggrieved by a nuisance must be municipal electors.I am unable to concur either in the law which seems to be laid down in these opinions, or in the facts which they assume. So far as the law is concerned, I entertain no doubt that the road authority are invested with large discretionary powers in regard to such matters as the cleaning of the streets and the regulation of traffic upon them, and that a Court of Law would decline to interfere with the due exercise of their discretion. But, in my opinion, in the case of a nuisance which the Legislature has not sanctioned, either expressly or by necessary implication, the road authority have no power or discretion either to commit it themselves or to authorize its commission by others. As regards the question of fact, an examination of those parts of the evidence which can be said to have any bearing upon it has satisfied me that the town council have not acquiesced in, and have not authorized, the operations complained of.In dealing with these questions of acquiescence and authority, it is necessary to keep in view that the respondents have all along asserted, and in this suit are still maintaining, their statutory right to do the acts complained of, irrespective of any licence from the street authority. So far back as February, 1886, the town council, acting upon the advice of counsel and the report of a sub-committee, intimated to the respondents that their operations, in so far as they consisted of sprinkling salt upon their track in times of snow and in clearing their rails by heaping the snow on either side of the track, “were unwarrantable and illegal,” and requested that they should discontinue those proceedings in the future. That intimation was never withdrawn; and the only answer which appears to have been sent to it was one or two letters of remonstrance, accompanied with a number of communications received by the respondents in reply to a circular addressed by them to the secretaries of various tramway companies throughout the country, all of which vindicate the practice of salting, and some of which go so far as to impeach the right of the road authority to interfere with it.  The respondents, in September, 1895, sent to the town council a copy of the record in this action, which had been closed on May 18, 1895, together with a request that the council should nominate representatives “to give evidence supporting the conduct of the tramway company.” The council remitted the matter to their Streets and Roads Committee, upon receiving whose report they resolved - (1.) that such of their members as the respondents should select should give evidence, on behalf of the council, in favour of the tramway company; and (2.) that a committee be appointed to meet the officials of the company, and to report whether an arrangement could be effected “with the view of having the streets expeditiously cleared during snow-storms.” I think the position which was taken up by the town council is perfectly intelligible. They were willing to enter into any reasonable arrangement for clearing away the snow and slush which would remove all cause of complaint by the appellant and others; but they at the same time thought it better that the respondents should maintain at their own hand, and at their own cost, the only plea which they had stated against the merits of the action. It is to my mind a very significant circumstance that, neither in their record nor in any of their communications with the town council, is there the slightest suggestion made of acquiescence or authority. The attitude of the council may savour of North Country caution; but it must be remembered that, if the respondents had succeeded in establishing their plea, the town council and the public would have been alike at their mercy.For these reasons I am of opinion that the interlocutors appealed from ought to be reversed, and that the cause should be remitted to the Second Division of the Court, with directions to grant the appellant an interdict in the terms proposed by the Lord Chancellor. I also think that the appellant ought, as proposed by his Lordship, to have the costs of his appeal in this House, and also the costs in both Courts below. 
Watson	Caledonian Railway Co v Turcan edited 	I am of the same opinion upon all the points which it is necessary to decide in this case, because a number of questions have been argued before us which I think it quite unnecessary either to entertain or to give judgment upon.At the outset of his argument it humbly appeared to me that the Lord Advocate had omitted to notice the fact that the Arbitration Act of 1889 is confined to England, and has no application to Scotland. If it had, I do not think it would be a national misfortune.The first question which arises in the case is, whether this road, or piece of ground, which is included in the notice to take given by the company, is in the strict sense of the Railway Acts a road and nothing else. And the next proposition advanced by the appellants is, that being a road it is not, in the sense of the Lands Clauses Act , part of the entire property which is occupied by the respondents for the purposes of a warehouse. Upon that point, my Lords, I cannot say that I entertain any doubt. I think it is (though we do not use that expression in Scotland) part of the curtilage of the house. I think it is simply a part of the property which the owners at present by mutual consent find it convenient to use for the purpose of getting access to a street which abuts upon the property. And it being therefore an integral part of the property, the Caledonian Railway Company are within the ambit of s. 90 of the Lands Clauses Act .Then, my Lords, the next point which it is necessary to consider is this: By the special Act of 1890, s. 13, s. 90 of the General Act is qualified to this extent—that the railway company may escape from its incidence if it be found that the ground as to which notice has been given “may be severed from the remainder of the property without material detriment thereto.” That is a point which the arbiter has decided against the railway company, and I am not aware that any material objection has been offered to that finding beyond this—that in the course of his address to the arbiter the learned counsel for the company made this proposal: that the company should, in their use of the subject which they had given notice to take, confine themselves simply to passing a girder bridge across it at such height above the solum as would enable the owners still to use the ground, as an access to the street.Whether the arbiter did right or did wrong in declining to take that circumstance into consideration in valuing the subject which notice was given to take, I do not think it necessary at present to make any comment beyond this—that the case of the Oswald v. Ayr Harbour Trustees12 does not appear to me to have any application to the circumstances of the present case; and for this reason—that all that was there decided was that the undertaking which the public trustees were there tendering—an undertaking to bind their successors in office in all time to come—was one which the House held to be beyond their power, and amounting practically to an abrogation of the rights given to those successors by express statutory enactment. Another question remains behind which I will not attempt to solve, although Lord Blackburn expressed an opinion favourable to the appellants upon that point, and the English case of Gonty seems to me to point in the same direction.But the important question remains: Assuming that the arbiter went wrong, what jurisdiction has this House or the Courts below to interfere with his finding? My Lords, by the law of Scotland the oversman, who is appointed in the terms of the deed of submission, is made judge of law as well as of fact, and he is not liable to have his decision reviewed, reversed, or modified unless the parties undertake to shew—what has not been attempted here—either that he was guilty of misconduct in his of office, or that he exceeded the bounds of the jurisdiction conferred upon him by the terms of the submission. In these circumstances I see no alternative except to assent to the judgment which has been proposed by the Lord Chancellor.
Watson	Bowman v Geddes edited	My Lords, I have come, not without hesitation, to the conclusion that the judgment appealed from may be affirmed, not for the special reasons assigned in the Court below, but on the grounds indicated by my noble and learned friend Lord Davey.The testator, Lawrence Bowman, by his trust disposition and settlement directed his trustees, “on the dissolution and winding-up of the firm of Bowman & Co., in the event of the predecease of my wife, and if she then survives on her death,” “to realize my whole means and estate, and to divide the same into four equal shares, and pay one share to each of my children, Archibald, Janet, Robert, and Isabella, or to their respective heirs.”I do not doubt, and to that extent I entirely agree with the learned judges of the Court of Session, that the word “or” which introduces the respective heirs of the four children named is equivalent to “whom failing,” and is an expression which imports the conditional institution of the heirs of each child to take the fourth share to which their predecessor is instituted, in the event of the child dying before the point of time, whatever that may be, which was in the contemplation of the testator. I fail to see why a gift over in favour of the heirs of an instituted child should be otherwise construed or have any different effect than a gift over in favour of another relative or of a stranger nominatim. In every such case the question as to when the gift over becomes operative depends upon the same considerations. The point to be ascertained is at what period of time the testator must be held to have had it in view, or, in other words, must be held to have intended that the right of the institute should come to an end if he was not then alive, and that the right of the conditional institute should emerge. Of course the intention of the testator in that respect must be matter of fair and reasonable inference from the whole terms of his will.In the present case the time fixed by the testator for the division of his trust estate into shares, and the distribution of these shares amongst the beneficiaries who are appointed to take, is “on the dissolution and winding-up of the said firm of Bowman & Co., in the event of the predecease of my wife, and if she then survives upon her death.” Had that direction stood alone, and had it not been qualified by other provisions of the trust settlement, it appears to me that the direction, in so far as it bears upon the date at which either the children named, if then in life, or, in the alternative, their then surviving heirs, were to take, would have been more easy of construction. But the other provisions of the settlement disclose peculiar features. From these it plainly appears that the main purpose of the trust was for accumulation of the profits of the colliery business carried on by the firm of Bowman & Co. No life-rent right of the estate was thereby constituted. The trustees were merely directed to allow the testator’s widow the life-rent enjoyment of his dwelling-house, and to make her such allowance as they might consider necessary for the maintenance of herself and of such of the testator’s daughters or their children as might be living in family with her. Provision was made for payment to his daughter Isabella and his son Robert of the sum of 1000l. independently of any interest which they might take in the residue of the estate; and, during the subsistence of the firm, for payment to each of his sons Archibald and Robert of the sum of 2l. per fortnight. And provision was made during the same period for payment to his son Archibald of a yearly salary of 104l. payable quarterly, so long as he continued to perform his duty in attending to the interests of the trustees in connection with the firm of Bowman & Co.That the accumulation of business profits, before the realization and distribution of the estate, was the main purpose which the testator had in view, is made apparent by the wide power which he conferred upon his trustees with respect to the conduct of the colliery business and the duration of the firm of Bowman & Co. In terms of the contract of copartnery under which the testator was carrying on that business at the time of his death in September, 1882, the partnership did not necessarily expire until the termination in the year 1892 of the coal leases, which it was formed in order to work. It was expressly covenanted that the firm should not be dissolved by the death of any partner, and that the representatives of a deceasing partner should have the option of retaining his share and interest in the business. By his trust settlement the testator empowered his trustees, as representing him in the firm of Bowman & Co., “to be parties to any new lease or leases which the said firm may consider it expedient to enter into”; and after providing that the trustees should not incur any personal responsibility from loss sustained by the firm in respect of such new leases, he directed that the profit or loss, as the case might be, should be added to or deducted from his trust estate. In point of fact, the trustees have already, with the other members of the firm, become parties to new leases of the collieries carried on by the company, which expire at December 31, 1904, Lammas, 1905, and Whitsunday, 1912, which meantime will probably have the effect of postponing the period of distribution of the trust estate for no less than ten years.If the time of the dissolution of the firm of Bowman & Co. had been even approximately known to the testator, or had been ascertainable by reference to the provisions of his trust settlement, instead of being left to the discretion of the trustees, I am inclined to think that the actual time of distribution would have been the period at which the testator intended that the beneficiaries to whom payment was to be made should be ascertained, only such of his children as were still alive then taking, and failing them their heirs. The general frame of the trust settlement favours that construction, because no right is constituted either in favour of the children named or their heirs, except the alternative right of the one or other of them to receive payment at that date.The general canon of construction applicable to cases of this kind was discussed by the Lord Chancellor (Westbury), Lord Cranworth, and Lord Chelmsford in the Scottish appeal of Young v. Robertson . 24 The Court of Session had held, by a majority of ten judges against three, that the gift of residue vested a morte testatoris, and that the institutes who were then alive, but predeceased the period of distribution which was appointed to take place upon the death of the testator’s widow, took in preference to the conditional institutes. The judgment was reversed by the House, who affirmed that the proper time for ascertaining the survivance of the institutes or conditional institutes, and their alternative right to take the shares provided to them, was the period appointed for distribution of the trust estate on the death of the life-rentrix, and not the decease of the testator.Lord Westbury, in his opinion, which is entirely consistent with that of the noble and learned Lords who sat with him, refers to the “reasonable and established rules of construction” which are applicable to such a case, and these his Lordship states to be the same in the jurisprudence both of England and Scotland. One settled rule thus laid down by his Lordship is 25 , “that words of survivorship occurring in a settlement (that is, in a will) should be referred to the period appointed by that settlement for the payment or distribution of the subject-matter of the gift. That undoubtedly is the rule now finally established in this country, and it has been ascertained from the authorities which have been cited at the bar that the rule was established in Scotland even before it was finally recognised in this country.”Lord Westbury then proceeds to cite two instances in illustration of the natural and reasonable rule which he has thus stated. The first refers to the case where the testator gives a sum of money or the residue of his estate to be paid or distributed among a number of persons, and refers to the contingency of one or more of them dying, and then gives the estate or the money to the survivor “in that simple form of gift which is to take effect immediately on the death of the testator.” In that case the words are construed to provide for the event of the death of any one of the legatees during the lifetime of the testator. His Lordship then goes on to say 26 :“By a parity of reasoning, if a testator gives a life estate in a sum of money or in the residue of his estate, and at the expiration of that life estate directs the money to be paid, or the residue to be divided among a number of objects, and then refers to the possibility of some one or more of those persons dying, without specifying the time, and directs in that event the payment or distribution to be made among the survivors, it is understood by the law that he means the contingency to extend over the whole period of time that must elapse before the payment or distribution takes place. The result, therefore, is that in such a gift the survivors are to be ascertained in like manner by a reference to the period of distribution - namely, the expiration of the life estate.”Lord Cranworth, after stating his concurrence in all the views expressed by the Lord Chancellor, went on to say:“I take it that the rule is well established upon the authorities as well as upon principle, both in Scotland and in England, that where there is a clause of survivorship, primâ facie survivorship means the time at which the property to be divided comes into enjoyment - that is to say, if there be no previous life estate, at the death of the testator; if there be a previous life estate, then at the termination of that life estate.”It appears to me to be in vain to contend that the provision of the trust settlement which your Lordships have to construe in this appeal is, in substance, anything other than a clause of survivorship. The direction to the trustees is to divide the whole estate, and to pay the shares to each of certain children named, and, in the event of their previous failure, to their respective heirs, who are the conditional institutes. The testator has not expressly or, so far as I can see, by plain implication, specified the time at which the failure of the nominatim institutes is to be ascertained for the purposes of and with reference to that alternative gift, and the time must therefore be determined according to the reasonable construction which the law supplies. I cannot avoid the conclusion that the words to be construed in the present case, if they are not differentiated by the single exceptional feature which they present, are within the rule of legal construction laid down by the members of this Mouse in Young v. Robertson27 ; and that, if not so differentiated, they disclose the testator’s intention to be that the failure of his children named was a contingency which might occur at any time before the arrival of the period appointed by him for the division and distribution of his trust estate.The exceptional feature which I have referred to consists in the circumstance, already noticed, that the testator gave his trustees authority to enter into new mineral leases, which they have already done, and by that means necessarily to postpone the period appointed for division and distribution; so that the testator, who knew the terms of the leases under which his firm of Bowman & Co. carried on business at the time of his death, and therefore knew the period at which the dissolution of the firm would probably take place, if his trustees did not avail themselves of the power of prolongation, could not be aware of the period of the firm’s dissolution, if that power were exercised by the trustees. And if that period were taken as the date of ascertaining survivorship, then the testator must be held to have delegated to his trustees the duty and right of determining by their action at what date the shares of his trust estate are to vest, and it may be of settling whether these shares are to be taken by his children as institutes, or by their heirs as conditionally instituted to them. To make the operative part of his settlement, the selection of the persons who were to succeed to the corpus of his estate dependent in a great measure upon the option of his trustees, was certainly an unusual if not a capricious provision; and that is one of the considerations which may fairly be taken into account in judging of the time at which the testator intended that survivorship should be ascertained. I have difficulty in holding that the provision was so capricious as to affect the application of the rule laid down in Young v. Robertson28 ; but I do not entertain that opinion so strongly as to differ, if your Lordships were of opinion that it shewed the testator’s intention to be that his children named were to take, if alive at the period of his decease, although they should not survive the period of division. I do not think that the judgment appealed from can be supported on any other ground. 
Watson	Assets Co v Blair edited 	The marriage contract contains, in that part of the deed where one would naturally expect to find it, a renunciation and discharge of the husband’s jus mariti and right of administration over the whole estate then belonging to his wife, or which she might acquire or succeed to; but at the end of the testing clause there have been inserted these words, that such renunciation and conclusion shall only apply to the capital or principal of the estate, and shall not extend or apply to the annual produce or interest of the said estate, the said John Robert Campbell being entitled to draw the said annual produce or interest. It does not admit of controversy that if these words, instead of occupying their present position, had immediately followed the previous renunciation of her husband’s legal rights, he would have been entitled to an annual payment of £315, which was not entered in his statement. The respondents aver that the appellants were under a duty, which they culpably and negligently failed to discharge, to read the whole of the marriage contract, including the clause above quoted, and to satisfy themselves thereby, and by ascertaining all the material effects, that the right to the said annual produce or interest was vested in, or at least might be lawfully and properly claimed to be vested in, Mr Campbell, and to report to the said liquidators that no settlement should be concluded with Mr Campbell except on condition of the liquidators receiving the actuarial value, or such sum as they might deem to be the value of Mr Campbell’s claim to the annual produce or interest in the said claim. The respondents then make the alternative averment that the appellants either culpably and negligently failed to read the testing clause, or, having read it, culpably and negligently failed to advise the liquidators to that effect. In my opinion, the relevancy of these statements entirely depends upon the proposition that the words so introduced into the testing clause form part of the deed, and must, as such, receive their full legal effect. If that proposition fails, the other averments of the respondents amount to nothing more than this, that before marriage there was an informal agreement between the future spouses to alter the terms of their probative deed. As might be expected, Mr Balfour did not maintain that such an agreement could per se prevail against the deed: but he argued at some length that the agreement was, after marriage, so validated as to possess that effect. Upon the general question which was discussed by counsel I do not find it necessary to express any opinion. His argument completely ignored the well-known rule of Scottish law which regards such acts by the wife after marriage, or even a formal ratification by her, as a donatio inter virum et uxorem , which she can revoke at pleasure. Two years before the date of the acts of negligence imputed to the appellants, the Judges of the First Division had unanimously decided in Smith v. Chambers that words similarly introduced into the testing clause of a trust disposition and settlement, which materially qualified one of the directions previously given by the testator, were of no legal effect. Upon that point separate judgments were delivered by Lords Deas and Mure, and by my noble and learned friend opposite, with the concurrence of the late Lord President Inglis. It does seem rather extravagant that a Scottish law agent should be accused of negligence and want of skill, because, in advising the liquidators as to the terms of a compromise, he accepted the law laid down by the same Judges who had the control of the liquidation, and whose sanction to the compromise was requisite. If the judgment in Smith v. Chambers be according to law, it necessarily follows that the present action is groundless. That decision was accordingly strenuously impeached by the respondents’ counsel, partly upon the authority of a previous decision, with which it is said to conflict, and partly on the strength of observations made by Lord Gordon in the case of Smith v. Chambers when it came to the House of Lords. In deciding that case, the Judges of the First Division had, of course, no opportunity of considering the remarks subsequently made by Lord Gordon; but all the authorities cited to us in the course of the argument for the respondents, with the exception of Brown v. Govan , which has been exhumed by the industry of their counsel, were carefully examined and discussed by Lord Deas, who also refers to a number of other authorities which are by no means favourable to the respondents’ case. I am satisfied with the judgment of the First Division in Smith v. Chambers , which, in my opinion, is decisive of the present case, and I entirely concur in the exhaustive exposition of the law and examination of previous decisions which is to be found in the opinion delivered by Lord Deas. In the case of Chambers v. Smith the opinion expressed by Lord Gordon, which was undoubtedly adverse to the unanimous decision of the Court below, in relation to the testing clause of Dr Chambers’ settlement, was not disposed of by the House, and I feel at liberty to respectfully differ from it. It mainly rested upon the ground that the decision of the learned Judges of the First Division was at variance with the judgment of this House in Dunlop v. Grenlees . The two cases were, to my mind, essentially dissimilar. In Chambers v. Smith the effect of the testing clause was to alter materially one of the directions of the trust created by the testator. In Dunlop v. Grenlees the words introduced into the testing clause were merely descriptive of the object with which Mrs Grenlees, who was not a party to the deed, subscribed her husband’s settlements. They did not alter or affect a single provision made by the settlor, and, in my opinion, if they had been omitted from the testing clause, the legal inference deducible from the bare facts of her subscription would have been precisely the same. 
Watson	Perth General Station Committee v Ross edited	My Lords, this appeal is from a judgment of the Second Division of the Court of Session, which recalls, and in substance reaffirms, two interlocutors pronounced in the. Sheriff Court of Perthshire by the sheriff-substitute and the sheriff. Your Lordships are, therefore, bound to treat the findings of fact contained in the interlocutor appealed from as having the force and effect of the special verdict of a jury. The effect of these findings cannot, in the present case, be fully appreciated without referring to the circumstances which gave rise to the litigation, which appear on the face of the record, and are not in dispute.The respondent, Alexander Ross, is a hotel-keeper, being tenant of the Royal British Hotel, Leonard Street, Perth, in the vicinity of the general railway station, the property and management of which are vested by statute in the appellants, for behoof of certain companies who use the station for the purposes of their traffic. Until the date of this action the appellants, who have a hotel of their own within the limits of the station, permitted all the hotel-keepers in Perth, including the respondent, to have free access to the platforms by themselves and their servants, for the purpose of accompanying their guests to the train by which they were departing, and of meeting them upon their arrival; but that privilege was qualified by the condition that no servant should, on these occasions, wear a distinctive badge or livery.The respondent was dissatisfied with the condition, of which he admittedly had notice, and on July 1, 1895, he intimated by letter to the appellants’ station-master, “I am resolved to send my ‘boots’ to Perth General Station wearing the badge and uniform of my hotel, whereby my customers may be attended to on arrival here, as they are at other railway and steamboat stations over the country.” That intimation was followed up by the respondent sending his “boots,” with badge and uniform, to the passenger platforms on numerous occasions during the month of July, 1895, who on all these occasions refused to leave the station when requested to do so by the officials of the appellants.On July 26, 1895, the appellants presented a petition to the Sheriff Court of Perthshire at Perth, craving to have the respondent, by himself or by his servants, interdicted (1.) from unlawfully entering or trespassing upon any of the railways, stations, or other works or premises of the appellants; (2.) in particular from so entering or trespassing in or upon the Perth General Railway Station, or other works or premises therewith connected, while wearing the uniform or badge of the Royal British Hotel; and (3.) from waiting the arrival of passenger trains therein for the purpose of obtaining customers for said hotel. The respondent by his defence denied that he or his servants had committed any trespass, and alleged that the object of the appellants in preventing hotel servants from coming to their platforms with badges, or in uniform, was to give a preference to their own Station Hotel, to his prejudice. His fifth plea in law is to the effect that “the object of the petition being an attempt to restrict the liberty of the defender Ross, or his servants, in the matter of wearing a uniform or badge, is illegal, and the pursuers are not entitled to interdict.”A proof was led before the sheriff-substitute, who, on February 13, 1896, issued an interlocutor containing various findings of fact and law, by which he refused the prayer of the petition. The basis of the decision is indicated in one of the learned judge’s findings, which is to the effect that the appellants, “as proprietors of said station, hold their said property under the condition of their not preventing its convenient use by any member of the railway travelling public, or with the presence therein of the keeper or servants of the hotel where such traveller has been staying, or which he may propose to go to, except in so far as is necessary for the proper management and control of the station and for the securing of which the pursuers have power to make such regulations or by-laws as they may think necessary.” The learned judge appears to have been of opinion that, it not having been proved to his satisfaction that the presence of the respondent in the station by himself or his servants, interfered with the proper control and management thereof, their exclusion would, in point of law constitute an illegal interference with the convenience of the members of the railway travelling public. The sheriff, on  April 17, 1896, affirmed the judgment of his substitute, apparently in deference to these or similar considerations.On appeal to the Court of Session, the Second Division of the Court, on June 26, 1896, by the judgment submitted to review, recalled the interlocutors of the sheriff and his substitute, and found in fact, “(1.) That the defender did not, by himself or his servants, enter the pursuers’ station except for the purpose of accompanying passengers who were leaving his hotel, or of meeting passengers who had intimated that they were to arrive at the defender’s hotel; and (2.) that neither the defender nor his servants ever caused any obstruction to or inconvenience at the pursuers’ station.” Their Lordships found in law, upon these findings of fact, that the appellants were not entitled to interdict, and they therefore refused the petition, with expenses in the Court of Session and in the inferior court.The logical connection between these two findings of fact, and between them and the conclusion of law which is deduced from them, is not supplied by any finding, and is not very apparent. The first would be a pertinent finding if it could be affirmed that every hotel-keeper and his servants have, at common law or by statute, an absolute right to enter any railway station and use its platform, if they go there for the purpose of accompanying or meeting passengers who are either leaving or have intimated an intention of coming to their hotel, so long as their presence does not cause obstruction or inconvenience. In that case it would be within the competency of an ordinary court of law to enforce such legal right. It is obvious that the second finding might apply, with equal truth, to many persons who enter a station without having any legal right to do so. The judgment, as framed, does not deal directly with that which is the real and only question in the case, namely, what legal right has the respondent to use the general station at Perth without the leave and against the will of its proprietors? As to the views entertained by the learned judges of the Court of Session upon that point, very little information can be gleaned from the opinions which they delivered at the advising of the case. I find in all of them great stress is laid upon the circumstance that it is within the power of the appellants, if they think fit, to frame regulations for the use of their station, and to submit them for the sanction of the Board of Trade; and that these regulations, if approved of by the board, will be enforceable under penalties. Some of the learned judges have expressly said, whilst others have plainly suggested, that the proper course for the appellants, in dealing with such claims as are advanced by the respondent, is to proceed by way of regulation, subject to the sanction of the Board of Trade, and not by interdict in a court of law. I cannot concur in that opinion. It appears to me that such regulations are only intended to govern the conduct of those persons whom the owner of the station cannot exclude, or whom he may choose to admit. When their right is permissive merely, and the permission is conditional, I can see no reason why, in order to enforce the condition, a regulation sanctioned by the Board of Trade should be required. I do not think it was intended by the Legislature that the Board of Trade, in sanctioning regulations of that kind, should have jurisdiction to determine what members of the public, if any, being neither travellers nor interested in goods traffic, shall have the right to use a station, or what facilities are to be allowed to those who are entitled to use it.The claim which the respondent sets up is, in substance, that he and his hotel servants have an absolute legal right to enter upon and use the passenger platforms of Perth General Station without observing the conditions which the appellants have attached to their admission. In my opinion, that is a claim beyond the cognisance of a court of law, which can only deal with legal rights as they exist, and not with rights as they might possibly have existed if the Railway Commissioners had been applied to, and had affirmed their existence. The learned sheriff-substitute, in affirming by his interlocutor as one of the grounds of his decision that the recognition of the respondent’s claims to their full extent would be of convenience to members of what he terms the railway travelling public, does not seem to have thought that he was invading the province of the Railway Commission. Yet it hardly admits of doubt that jurisdiction to determine, in the first instance, whether the respondent  has a statutory title to demand the privilege which he claims and, in the event of his having a title, to determine whether and how far his claim ought to be allowed, belongs exclusively to the commissioners. Accordingly, these are questions with which I conceive that I have nothing to do in the present case, and upon the merits of which I desire to express no opinion.Apart from any facilities which might by possibility be given him by the Railway Commissioners, whose intervention has never been invoked either by the respondent or by any one in his behalf, has the respondent any right, capable of being legally enforced, to use the appellants’ station at all, or upon any other conditions than the appellants choose to prescribe? That is the cardinal question in this case, and one to which I cannot find that any attempt has been made to give a satisfactory reply in the Courts below. The respondent makes no claim as one of the members of the travelling public, or as a person interested in goods conveyed by rail to or from the appellants’ station. His counsel, in the absence of any materials for a stronger argument, very fairly and plausibly maintained that the respondent was invited to use the station, and that, when using it in response to such invitation, he could not be deprived of his natural liberty to clothe his servant with any badge or garment which he chose; and also that the adoption of an hotel badge or uniform was required in the interest and for the convenience of railway travellers who were to arrive at the station on their way to his hotel. The first of these arguments fails, because it is not shewn that any invitation was held out to the respondent which was not coupled with the intimation that he was not to send any servant to the station with a badge or uniform. As regards the second, it is sufficient for the purposes of this case to say that the respondent is not one of the railway travelling public who frequent his hotel. So far as appears, none of them have complained that facilities to which they were entitled have been withheld from them by the appellants; and, even if they had just cause of complaint, they could have no redress except by an application to the Railway Commissioners.It is no doubt true that whilst the appellants are vested with the ownership and administration of the station, their statutory powers were conferred upon them by the Legislature, as in the case of railway companies, with a view to the accommodation of the public. But the Legislature has not committed to the ordinary tribunals of the country the duty of determining whether the implied obligation of giving accommodation to the public has been duly fulfilled. When a member of the public having the right to use a railway or a station has reason, or without reason thinks fit, to complain that some facility which he ought to have has been withheld from him, and that an undue preference had been shewn to others in the same position, a court of law can give him no remedy. He must resort to the tribunal which the Legislature has constituted for that purpose, the Railway Commissioners; and, until they have decided in his favour, he is not in a position to say, and no Court would be justified in holding, that he stands possessed of the right which he asserts.His claims to use the appellants’ station, which have been maintained in defence by the respondent, appear to me to be in excess of any legal right which he possesses. In my opinion, so long as there is no decision to the contrary by the Railway Commissioners in an application to them by some person having a proper title, it is within the discretion of the appellants either to exclude him and his servants from the station, or to admit them upon such conditions as may be thought fit. The right of the respondent, if he can be said to have any right, must depend upon the extent of the licence accorded to him by the appellants. It might have been a reasonable course, had it been adopted at an earlier stage of these proceedings, to stay the present suit until the respondent had an opportunity, either by himself or through some other person having a more direct interest, of endeavouring to bring his claims, such as they are, under the consideration of the Railway Commissioners. But, seeing that the respondent has persisted in relying upon his supposed legal rights, with the barren result of three years’ unprofitable litigation, I think your Lordships ought now to dispose of the case as it stands.This action, although in the form of a petition for interdict, \ was obviously brought for the purpose of obtaining the judgment of a court of law upon the relative rights of the parties as they existed at the date of the petition, and still exist. And, although the conclusions for interdict are so framed that they might be made to square with that view of their relative rights which I have ventured to suggest, I have come to the conclusion that the more expedient course for your Lordships to follow is to make a declaration in regard to the right, or want of right, of the respondent in such terms as will not exclude him from the benefit of any order or regulation which may hereafter be made by the Railway Commissioners. I am satisfied of the competency of taking that course; and I see no reason to apprehend that the respondent will proceed to act in excess of his rights as defined by the House.
Watson	Teacher v Calder edited	My Lords, upon April 11, 1889, a minute of agreement was executed between the late Adam Teacher, wine and spirit merchant in Glasgow, of the first part, and the respondent, James Calder, timber merchant, Glasgow, carrying on business there under the name or firm of Calder & Co., of the second part. The agreement on the narrative that the second party had applied to the first party for capital to be applied by him to extend and carry on his business as timber merchant, which the first party had agreed to give, in consideration of receiving the interest and share of profits or additional interest, in terms of the Act 28 & 29 Vict. c. 86 , contained, inter alia, the following stipulations, which the parties bound themselves to observe:—The first party agreed to advance in loan to the respondent, to be put by him as capital into his business of Calder & Co., the sum of 15,000l. between the 1st day of May and the 1st day of November, 1889. The first party also agreed to become cautioner to the Commercial Bank of Scotland, Limited, for 20,000l. to be advanced to the respondent for the purposes of his said business.It was agreed that the respondent should pay to Mr. Teacher, in the first place, interest upon his loan of 15,000l. at the rate of 5l. per centum per annum, beginning the first annual payment at the term of Whitsunday, 1890; and, in the second place, by way of additional interest, such further sum as should be equal to 37½ per cent. of the net profits of the respondent’s business of Calder & Co., under deduction at the rate of 5l. per centum per annum upon the capital of the respondent, and of any partner he might thereafter assume, and upon the said loan of 15,000l., and also under deduction of the interest on the said bank credit or other interest, and on any addition to and accumulation of capital which under the provisions of the minute of agreement might be added thereto during the continuance of the said loan and bank credit, and also of the other charges and expenses of the business, and allowing a reasonable depreciation on plant, but not deducting anything for salaries to partners.It was agreed that the books of Calder & Co. should be balanced as on the 30th day of April, 1889, the day before the minute came into operation, and the respondent’s capital in the stock and plant of the firm valued and ascertained. In the event of the first party being dissatisfied with the valuation, it was provided that the amount of the respondent’s capital stock should be valued by two arbiters, with power to them to appoint an oversman in case of their differing in opinion. It was also provided that the respondent, in the event of his capital not amounting to at least 15,000l., should put into the business a sum sufficient to raise the capital to that amount.The fifth article of the minute, which relates to the ascertainment of the net profits of the business of Calder & Co. divisible between the first and second party, has formed the main subject of controversy in this appeal. It stipulates that —“The books of the said firm shall thereafter be balanced annually on the 30th April, and shall be audited by Messrs. M’Clelland, Mackinnon & Blyth, chartered accountants, Glasgow, or other auditors to be mutually agreed upon and appointed by both parties hereto, and the certificate of the auditors shall be binding on both parties as finally fixing the amount of the profits in each year, and the foresaid interest or percentage payable to the first party.”The minute was to continue in force for the term of five years, but either of the parties had right to bring it to a termination at the end of three years, upon his giving the other party six months’ notice in writing prior to the 1st day of May, 1892. It was stipulated that the respondent, Mr. Calder, and any other partners that might be assumed by him into the firm of Calder & Co., should have power to draw interest on capital as well as on their share of the profits of the business, or might leave them in the business as capital, bearing interest at 5l. per cent. per annum, but that no capital should be withdrawn from the business so long as Mr. Teacher’s loan was unpaid and his liability for the bank credit of 20,000l. undischarged. The minute also provided that, in the event of any disputes or differences arising as to the agreement between the parties thereto or their representatives in regard to the agreement, the business of Calder & Co., or the conduct or winding-up thereof, the same should be and were thereby submitted to the amicable decision, final sentence, and decree-arbitral of William Mackinnon, accountant in Glasgow, whom failing of Andrew Mackinnon, bank agent there, as arbiter in succession mutually chosen, whose decision or decisions, interim or final, should be conclusive and binding upon both parties.After the minute of agreement was completed, Mr. Teacher called with it upon Mr. William Mackinnon, the leading member of the firm of accountants who had been appointed to audit the books of Calder & Co. He did not see Mr. Mackinnon, and called again at the office, when he had an interview with another partner, Mr. Robert Blyth, to whom he gave the minute of agreement, and, after discussing its terms with that gentleman, left it with him to be communicated to Mr. Mackinnon. Mr. Blyth on the same day made an abstract of the terms of the minute; and, according to his evidence, he gave back the minute to Mr. Teacher, and believes that he handed the abstract to Mr. Mackinnon on his return to the office. He says, “I had nothing more to do with the matter, and I took no more concern with it whatever.” Nothing more is heard of the abstract, and it is not said or suggested that it was seen or read by any one in the office save Mr. Mackinnon, who died not long after he received it, until it was discovered among some other papers in the year 1894.The parties to the agreement, the late Mr. Teacher and the respondent, Mr. Calder, understood and believed that the accountants, to whom they had entrusted the function of auditing the annual balance-sheets of Calder & Co., were cognisant of and would be guided by its terms in the discharge of their duty as auditors. Mr. Teacher had done all that he could to instruct them in the details of the agreement, and the respondent in his evidence states, “Mr. Teacher told me he had given the agreement to the auditors, and I understood he had given them instructions to attend to his interests in the audit,” and again “I had learned from Mr. Teacher during that year that he had intimated the agreement to the auditors, and I took no further part in the matter.”The books of Calder & Co. were balanced as at April 30  in each of the years 1890, 1891, 1892, and 1893 by Charles D. Gairdner, who became a partner of the auditors’ firm in the year 1888. Mr. Gairdner had been for some years previously a clerk of the firm, and he had been in use under the supervision of Mr. Blyth, who retired from the firm in 1891, to balance the books of the respondent, Mr. Calder. Mr. Gairdner when examined as a witness states, “From 1888 onward to 1893 I continued the audit of the books exactly on the same principle as I had conducted it prior to that date. I got no instructions whatever from any one to conduct the audit in any different way after 1889 from what I had done before. I have seen the agreement which was entered into between Mr. Teacher and Mr. Calder in 1889. The agreement itself I first saw late in 1894, but some time before that I had discovered in my office a memorandum in Mr. Blyth’s handwriting containing a note of the particulars of the agreement. I discovered that entirely by accident - I think it must have been about the spring of 1894. Until I saw the memorandum I did not know what were the terms of the agreement between Mr. Calder and Mr. Teacher. Until I discovered the document No. 308 I was not aware there was any such agreement between Mr. Calder and Mr. Teacher.”Upon the completion of Mr. Gairdner’s audits and upon his information his firm issued certificates in these or similar terms: “We have examined the foregoing balance-sheet and profit and loss account as at 30th April and compared them with the relative accounts in the ledger and found them correct.” In the course of his employment Mr. Gairdner became aware from entries in Mr. Calder’s private books, which he also audited, that Mr. Teacher had advanced the sum of 15,000l.; but he was not aware that Mr. Teacher had granted a cash credit for 20,000l. upon which his claim was postponed to the debt due by Mr. Calder to the bank. He had on the occasion of each audit numerous meetings with Mr. Teacher and Mr. Calder separately, and he learnt from them the extent of their interests respectively in the profits of Calder & Co., but neither of these gentlemen ever referred to the existence of an agreement or to its terms. In that statement Mr. Gairdner is corroborated by the respondent, who says, “I understood it” (i.e., the agreement) “was as well known in M’Clelland, Mackinnon & Blyth’s office as my own, and that every member of the firm knew all about it.” Unfortunately the belief of Mr. Calder as to the firm’s knowledge of the agreement, which he shared with Mr. Teacher, was not justified by the fact. The accountant who made the audit was a member of the firm, but he was not aware of the terms of the agreement, and he did not know that, in accordance with the fifth article, his audit was to be final and binding upon both the parties. So far as he knew, he was merely employed by the parties to make a professional audit for their mutual convenience, and he had no reason to suppose that if they or either of them were dissatisfied with his determination upon any point it was not open to them to have it corrected elsewhere, and if necessary in a court of law.Mr. Gairdner himself gives evidence relating to these points which appears to me to be of considerable importance. He began the audit in July, 1894, of the balance-sheet of Calder & Co. for the previous April 30, which had never been completed, having then the knowledge of the terms of the agreement which he had acquired from the discovery of Mr. Blyth’s abstract. He says, “Having become aware of the terms of the agreement, I examined the books differently on that occasion from what I had done formerly because the charge against profits might require to be differently treated. On examining the books at that time I found certain items which appeared to me not to be satisfactory.” He also, in reply to the question, “Supposing you made an audit in that capacity of arbiter between parties, would you audit differently?” states, “I would analyse the allocation between capital and revenue somewhat differently.”The learned counsel for the respondent strenuously contended that the evidence given by Charles D. Gairdner ought not to be believed, and that your Lordships ought to hold it proved as matter of fact that Gairdner was, throughout the years for which he completed an audit, in the full knowledge of the terms of the minute of agreement. I do not think it necessary to criticise their argument minutely. It mainly consisted in the suggestion that because Mr. Gairdner had frankly admitted his non-recollection of a variety of trivial circumstances which would not naturally have been retained by his or any ordinary memory he must be held to have spoken falsely when he affirmed that he had neither seen nor heard the tenor of the agreement until he discovered Mr. Blyth’s abstract. I have carefully studied the evidence, and I cannot find the slightest ground for any imputation against the credibility of Mr. Gairdner. In the Court of Session, the Lord Ordinary (Low), before whom Mr. Gairdner was examined, accepted his testimony. His Lordship indicated an opinion that notwithstanding the audit Mr. Teacher would have been entitled to an accounting if it had been shewn that the ignorance of the auditor was due to the fault of the respondent, whom he acquits of all blame in the matter. He does not directly impute any fault or want of due care to Mr. Teacher, who equally with Mr. Calder acted in the honest belief that the auditor knew the terms of the agreement. But his Lordship seems to have thought that if the respondent was not to blame for the ignorance of their auditor, his procedure was binding upon Mr. Teacher. The Lord President (Lord Robertson) and Lord M’Laren, who were the majority of the First Division, assumed the veracity of Mr. Gairdner’s evidence. The Lord President said, “It happened, however, that the books were audited in each year, not by Mr. Blyth, but by his partner Mr. Gairdner, and the pursuer’s point is that Mr. Gairdner says (and I hold this to be proved) that he never saw the agreement nor Mr. Blyth’s précis of it.” Lord Adam, who differed from his colleagues, in the result vested his judgment upon the proved ignorance of Mr. Gairdner.I should have much hesitation in differing from the opinion of these learned judges upon a pure question of fact; but an examination of the evidence, with all the light that was thrown upon it by the arguments of learned counsel, has satisfied me that the testimony of Mr. Gairdner is candid and truthful, and is corroborated by all the other evidence in the case.In 1894, being the last year of the agreement between Mr. Teacher and Mr. Calder, disputes arose between them which it is unnecessary to detail, and the result was that the audit of the books of Calder & Co. as at April 30, 1894, has never been completed. An unsuccessful attempt was made to refer to a neutral accountant; and, one of the two arbiters appointed by agreement for the settlement of differences arising out of it having died, the other, Andrew Mackinnon, bank agent, eventually declined to accept the reference.Mr. Teacher, who is now represented in this appeal by his testamentary trustees, in March, 1896, brought the present action against Mr. Calder. It concludes, first, for a full accounting as to the profits of the business of Calder & Co. for the year ending April 30, 1890, and the four following years, and for payment to the pursuer of the share of net profits to which he was entitled under the minute of agreement; and, second, for payment of the sum of 15,000l. sterling. In the last place, it concludes for reduction, if necessary, of the several audits made by Mr. Gairdner for the years 1890, 1891, 1892, and 1894, and of the relative certificates granted by the firm of which he was a partner under their firm names of M’Clelland, Mackinnon & Blyth, and M’Clelland, Mackinnon & Co.The Lord Ordinary (Low) on May 28, 1897, pronounced an interlocutor, by which he “dismisses the action, and decerns; finds the pursuer liable in expenses.” On a reclaiming note by Mr. Teacher their Lordships pronounced the interlocutor appealed from, by which they “Recall the said interlocutor, decern against the defender for payment to the pursuer of 250l. sterling of damages quoad ultra dismiss the action, find the defender entitled to two-thirds of the taxed amount of expenses.” 5The argument for the pursuer in the Courts below, as it was at the bar of the House, appears to have been addressed to four different points. First of all, it was contended that the audits made by Mr. Gairdner were not in terms of the minute of agreement, and ought, if necessary, to be reduced and set aside and an account taken of the business profits of Calder &  Co. during the currency of the agreement. In the second place, it was maintained that, assuming the audits made by Mr. Calder to be conclusive, there were certain erroneous entries on the balance-sheets which he had passed which ought to be corrected and effect given to the correction, inasmuch as the errors had been occasioned by the fraud or fraudulent misrepresentation of the respondent Mr. Calder. The principal items said to have been thus falsified were - (1.) a bad debt of 3096l. 12s. 6d. due to the firm of Calder & Co. by Rucker & Co., their agents at Riga, which it was alleged had become irrecoverable and ought to have been written off before the minute of agreement became operative; (2.) certain entries in the “Depreciation of Plant Account”; (3.) certain entries in the “Plant Repairs Account”; (4.) entries in the “Stock Account”; and (5.) entries in the “Suspense Account.” In the third place, the pursuer claimed substantial damages in respect of the respondent’s breach of contract, by drawing his capital out of the firm of Calder & Co. and employing it elsewhere, without the consent of Mr. Teacher, to such an extent as to reduce his capital in the business below the amount stipulated in the agreement.The first, and in my opinion the nicest, point to be decided in this appeal is involved in the question whether the audits made by Mr. Gairdner can be rightly regarded as having been made by him in due fulfilment of the duty committed to his firm of M’Clelland, Mackinnon & Blyth by the fifth article of the agreement of April 11, 1889. To my apprehension that is a question which depends upon the law of Scotland. I am quite aware that legislation, comparatively recent, has done much to assimilate the laws of reference or arbitration in the two countries, but it has not yet made them quite the same. The Lord Chancellor (Cranworth) in Drew v. Leburn6 stated that, as the law of England stood before the Act 3 & 4 Will. 4, c. 42 : “If parties submitted a matter for arbitration to a private tribunal to be decided by a selected person, either of them might at any time, without assigning any ground, revoke that submission.” In Scotland, from the earliest times, a concluded contract to submit the determination of any point to the opinion or judgment of a private person cannot, unless the person referred to die or refuse to act, be revoked, save by consent of all the parties submitting and ousts all interference by the ordinary courts of the country. The fifth article of the minute of agreement was a concluded contract binding both parties to accept as final the decision of the firm of M’Clelland, Mackinnon & Blyth, or of any one of its members, upon the yearly balances of the books of Calder & Co., and the ascertainment of the net profits of its business to be divided between them in terms of the agreement.It was argued for the respondent that the contract embodied in the fifth article did not constitute a proper arbitration. I freely admit that it did not contemplate a formal arbitration to be followed by an award, but it was none the less a contract of submission or reference which committed to the referee the decision of any point which might arise in the course of his audit. In my opinion the contract was of the same nature as a proper arbitration, in this respect - that it came within the well-known rule: “Seeing it is from the consent of the parties submitting that the whole power of arbiters is derived, their award or decree, if it be not given in conformity to those powers is null, not being founded upon any proper authority” (Ersk. Instit. bk. iv. tit. 3, s. 32).It was also maintained for the respondent that it was not the intention of Mr. Teacher and the respondent that the accountant, acting under the fifth article, should know the terms of their agreement or of the reference which they made to him. I do not doubt that parties may agree to accept as final the decision or opinion of a referee who knows nothing except the question put to him, and is not to be informed who they are and what are their respective interests, but it must in that case very clearly appear that they so agreed. To arrive at the conclusion that there was any such agreement in the present case would be contrary to all the evidence. I think it is beyond reasonable doubt that Mr. Teacher and the respondent both contemplated and intended that the audit provided by the fifth article should be made by an accountant who was conversant with the terms of the minute of agreement, and also knew that as between them his audit was to be final and conclusive. It seems to me to be equally beyond doubt that throughout the period during which audits were made by Mr. Gairdner the parties to the minute of agreement understood and believed that Mr. Gairdner knew its terms.I have no desire to disparage the conscientiousness of referees, whether professional or not, but when parties agree to be bound by their opinion or decision as final, and also agree that they shall be informed of its finality, I am of opinion that the referee who gives an opinion or decision without knowing that it was meant to be conclusive does not act in conformity with the power that was conferred upon him. The objection in this case to Mr. Gairdner’s audit is deeper still, because he was ignorant of the terms of the minute of agreement and of the precise nature of the interest conferred by it upon Mr. Teacher. Mr. Gairdner himself states that after he came to know the details of the minute in the year 1894 he no longer regarded the audits which had been made by him as satisfactory, and that with that knowledge he would have audited the books of Calder & Co. somewhat differently. I see no reason to discredit that statement. The evidence in this case shews that there may be considerable difference of professional opinion upon matters of audit, and I cannot resist the conclusion that Mr. Gairdner would have audited differently had he known the terms of the agreement, and also that his determination was final. If that were so, I do not think he can be said to have made the audit contemplated by the agreement.The Lord Ordinary indicated an opinion that if Mr. Gairdner’s ignorance of the terms of the minute of agreement had been traceable to the fault or negligence of the respondent Mr. Calder, Mr. Teacher probably would have been entitled to decree for an accounting. That conclusion does not necessarily suggest that his Lordship thought the ignorance of Mr. Gairdner was in some sense due to the ault of Mr. Teacher, and for that proposition I can find no evidence whatever. Mr. Teacher did all that he could be reasonably expected to do for the purpose of informing the accountant firm and its partners, and the non-communication of the contents of the minute to Mr. Gairdner, the partner who made the audit, was entirely due to the ill-health and subsequent death of Mr. Mackinnon, and to Mr. Blyth, assuming that he had done all that was necessary in giving his abstract to Mr. Mackinnon. It appears to me that a mutual mistake as to Mr. Gairdner’s knowledge of the agreement for which neither of the parties to it was responsible was as good a ground in Scottish law for disregarding his audit and allowing an accounting as if the mistake had been occasioned by the fault or negligence of one of them.The two learned judges who formed the majority of the Division were of opinion that Mr. Gairdner’s evidence was trustworthy, and they did not impute his ignorance of the agreement to the fault or negligence of either Mr. Teacher or the respondent. But they were of opinion that Mr. Gairdner knew so much that he was in substantially the same position as if he had known the full terms of the agreement, and that his audit was necessarily the same as if he had been in possession of that fuller knowledge. Their conclusion appears to me to labour under a double vice in this respect: that (1.) it discards the referee’s own statement that he would have audited differently, and (2.) it makes a new agreement for the parties which they did not make, and probably never would have made, for themselves.I do not consider it necessary to discuss at length any of the other questions which were argued at the bar. I agree with your Lordships in thinking that the appellants, the trustees, have failed to substantiate any of the charges of fraud or misrepresentation brought against the respondent; and that the respondent ought, accordingly, to be assoilzied from the conclusions of the summons in so far as rested upon these allegations. I also agree with those of your Lordships who are of opinion that there is no ground for increasing the amount of damages for which the respondent has been found liable in respect of his breach of contract.
Watson	Lord Provost of Glasgow v Glasgow And South Western Railway Co edited 	I am of the same opinion. I think the appellants have failed to shew that the works which they have executed are warranted either by the 28th or the 29th section of the Waterworks Clauses Act .With regard to the later section, which provides that a pipe shall not be placed in any land not dedicated to the public, I am quite aware, and it is obvious, that questions may arise where land is burdened with the support of a public roadway, how far that burden extends, and how far an undertaking incumbent upon the proprietor of the land to give support to the roadway along the surface implies dedication to the public of his land for that purpose to a particular depth. But it is not necessary to consider a speculative question of that kind in this case, because the limits of the public right here are very clearly defined. Of course on the surface of the road there must be a certain extent of air space which is dedicated to the public with the use of the road; but with the lower part of each girder the interest of the public, in my opinion, entirely ceases. Whatever is below the lower part of the archway of the bridge, below the girder and altogether outside of the bridge, is not in my opinion dedicated to the public, and is not land or a hereditament in which the public have the least interest.Then, with regard to the 28th section, it is unnecessary for me to comment upon it at any length after the observations which have been made by my noble and learned friend the Lord Chancellor, in which I entirely concur. But I take leave to observe that all the powers given by that clause appear to me to be very intimately connected the one with the other. I think the first power given affords the keynote to all the rest, or, in other words, all the powers that follow the first power conferred by the clause are ancillary to it. The first part of the clause give power “to open and break up the soil and pavement of the several streets and bridges.” That is an operation impracticable in the case of the roadway along the bridge in question, and it is not suggested that the power has been exercised, or can be exercised. Then follows the power to lay down and place pipes. Nothing can be more clear in regard to these powers than this: that the purpose of opening and breaking up the soil under the first of them is simply to form a hole or trench in which the pipe can be laid. Then comes the third power, of which a great deal was said in the very able argument of Sir Richard Webster: “and may open and break up any sewers, drains, or tunnels within or under such streets and bridges,” and so forth. That is not a general power to roam over the streets and break open sewers, drains, and tunnels. It is a power meant to be exercised in cases where the promoters of an undertaking, having opened or broken up a street under the first power given by the clause, meet with an obstruction to their work in the shape of tunnels, drains, or sewers which have been previously constructed. But from beginning to end of the clause there is no power given to go beyond the soil and pavement of the bridge. In this case, as I have said before, there has been no operation attempted upon the soil or pavement of the bridge, but there have been operations conducted involving very serious interference with the structure of the bridge, which are unnoticed and unwarranted by the clause. 
Watson	Helby v Matthews edited	My Lords, the terms of the agreement are exceedingly simple, and had it not been for the conflict of judicial opinion which they have provoked, it would not have occurred to me that their true character and substance admitted of much doubt. The only stipulations which are of materiality to the present question are these: Brewster undertook to pay a monthly rent or hire instalment of 10s. 6d., commencing on the 23rd of December 1892, subject to the condition that he might terminate the hiring at any time by delivering up the piano to the appellant. In the event of the hiring being so terminated, he was to remain liable to the owners for arrears of hire up to the date when the piano was returned. Then follows a stipulation to the effect that, “If the hirer shall punctually pay the full sum of £18 18s., by 10s. 6d. at date of signing, and by thirty-six monthly instalments of 10s. 6d. in advance, as aforesaid, the said instrument shall become the sole and absolute property of the hirer.”These stipulations, in my opinion, constitute neither more nor less than a contract of hiring, terminable at the will of the hirer, coupled with this condition in his favour, that, if he shall elect to retain it until he has made thirty-six monthly payments as they fall due, the piano is then to become his property. The only obligation which is laid upon him is to pay the stipulated monthly hire so long as he chooses to keep the piano. In other words, he is at liberty to determine the contract in the usual way, by returning the thing hired to its owner. He is under no obligation to purchase the thing, or to pay a price for it. There is no purchase and no agreement for purchase, until the hirer actually exercises the option given him. The respondents’ counsel endeavoured to assimilate this case to Lee v. Butler 8 , but in reality the two cases differ essentially. In Lee v. Butler 9 the so-called hirer was bound absolutely to make payment of £1 on the 6th of May and of £96 4s. on the 1st of August, 1892, these sums being described as “rent for the hire or use of certain furniture,” which was the subject-matter of the agreement, it being declared that upon due payment of these rents, amounting to £97 4s., the furniture was to be “the sole and absolute property of the hirer.” It appears to me to have been rightly held that Mrs. Lloyd, the hirer, had truly agreed to purchase the furniture, and could therefore give a good title to a bonâ fide purchaser. Her legal obligation to pay the price attached as soon as the agreement was executed.Apart from the arrangement for hire of the piano, the only right given to Brewster by the agreement in question was the option to become a purchaser. It is true that whilst he was under no obligation to buy, the appellant was legally bound to give him that option, and could not retract it, if the other stipulations of the contract were duly observed by the hirer. But the possession of such a right of option was, in no sense, an agreement by Brewster to buy the piano; and the appellant’s obligation to give the option was not, in the sense of law, an agreement by him to sell. In order to constitute an agreement  for sale and purchase, there must be two parties who are mutually bound by it. From a legal point of view the appellant was in exactly the same position as if he had made an offer to sell on certain terms, and had undertaken to keep it open for a definite period. Until acceptance by the person to whom the offer is made, there can be no contract to buy. So long as the agreement stood unaltered there could, in this case, be no contract to purchase by Brewster until he had complied with the terms of the option given him, and had duly made the thirty-six monthly payments which it prescribes as the condition of his becoming owner of the piano.The distinction between a pre-contract of that kind and a proper agreement for the sale and purchase of goods, does not appear to me to have been sufficiently regarded by the learned judges of the Appeal Court. Their Lordships seem to have assumed that, because the appellant had bound himself to sell if Brewster chose to buy upon the terms prescribed, he was in reality a seller; and that the existence of a seller necessarily implies the existence of a buyer. In my opinion, that reasoning is inconclusive. Whilst, in popular language, the appellant’s obligation might be described as an agreement to sell, it is in law nothing more than a binding offer to sell. There can, in such a case, be no agreement to buy, within the meaning of the Act of 1889, until the purchaser has exercised the option given him in terms of the agreement.Another argument was urged for the respondents, which I find thus succinctly stated, in their fifth reason; “That upon Brewster pledging the pianoforte with the respondents he put it out of his power to exercise his right to determine the agreement by returning the pianoforte, and thereby the agreement to purchase became absolute and unconditional.” The argument is, in my opinion, untenable. In a question with the appellant, Brewster could not become purchaser of the instrument, except upon the condition of his observing the stipulations of the agreement and making regular payment of each monthly instalment until the 23rd of November, 1895, which he was under no obligation to do. By the act of pawning he violated these stipulations: and that dishonest act, which was committed after he had paid only a few out of the thirty-six instalments, is not calculated to suggest that he entertained any intention of becoming purchaser of the piano. It is quite true that Brewster thereby put it out of his power (at least until he could raise the amount for which it was pawned) to return the piano to the appellant; but he at the same time broke his contract, and forfeited his right to exercise the option of purchase given him by the agreement.For these reasons I am of opinion that the order of the Court of Appeal ought to be reversed, and the judgment of the Divisional Court restored. 
Watson	New Windsor Corp v Taylor edited	My Lords, I desire to rest my judgment in this appeal entirely upon the view which I take of the effect of the Act 9 Geo. 2 c. xv. upon the franchise which was previously possessed by the appellants.I do not think it necessary in this case to consider the point, which does not seem to me to arise, how far the Legislature can add provisions to the terms of a franchise leaving the franchise standing and unimpaired. That they may do so is possible - I do not intend to express any opinion to the contrary - and if the Act of George II. had merely been an enactment to the effect that was contended by Mr. Crackanthorpe, it is quite possible that the franchise might have outlived the passing of that statute. But when the substance of the Act is looked to, there are a great many considerations which, to my mind, clearly point to this result - that the Legislature did not intend the franchise to subsist and be an available right to the holders; that their intention was to substitute for it a statutory right which was at least equivalent to the franchise, and to leave no other right standing; to regulate the rights of the holders of the franchise, or the rights and obligations of those who used their bridge. The enacting clause is very plain to this effect: “That it shall and may be lawful to and for the person or persons appointed … by the said mayor, bailiffs, and burgesses, or their assigns, to collect the said tolls” (What are the said tolls? The tolls which they are accustomed by virtue of their franchise to collect), “and to take of all persons” (there the statute widens the exemption given to freemen, which is not altogether unimportant - the freemen are to be exempted); they are “to demand and take of all persons (other than freemen of the said borough) the respective tolls before mentioned”; in other words, they are to levy the franchise tolls. It would be out of the question to suggest that, having made statutory provision for the levy of those franchise tolls for the future under statutory authority, the Legislature intended the mayor, bailiffs, and burgesses to continue to levy the same tolls under their franchise.Well, my Lords, what appears to me to have been effected by that part of the enacting clause of this statute is simply to create what it was quite competent for them to do - a statutory authority in the room of, and in substitution for, the right of franchise which was previously available to the mayor, bailiffs and burgesses. The effect of that substitution of a new statutory authority for an authority derived from the franchise only was, I apprehend, on the clearest authority to determine the franchise - to put an end to it; and, accordingly, I think that matters stood in the position that there was no franchise; there was a perpetual right to levy according to the scheme substituted for the franchise certain sums for the bridge, and thereupon the mayor and burgesses go to Parliament for another Act. I do not intend to refer to the terms of that Act, or to discuss or consider what might have been its effect in different circumstances. If I am right so far as I have gone, the only consideration which it raises is limited to this point: Does it anywhere set up the franchise anew? In my opinion it certainly does not. To begin with, the Legislature cannot create a franchise - that is a matter beyond its powers; but I do not dispute their entire competency to create a statutory remedy, and statutory rights and statutory obligations, which will form the equivalent of a good franchise right; that it is undoubtedly in their power to do. But in the second statute and in its successor, so far as I can find, there is no attempt to do that; there is no new statutory right created: there is no substitution for the franchise created. All the clauses that are founded upon are clauses simply reserving certain rights and privileges which are assumed to have been, at the time the later Acts of 1819 and 1842 were passed, vested in the mayor and burgesses. But how far these reservations might reserve the right which was competent to and in the mayor and burgesses at that time it is not necessary to discuss. They could not have the effect of calling again into existence and revivifying a right that was dead and gone a century before.On these grounds, my Lords, I think the judgment appealed from ought to be affirmed, with costs. 
Watson	Highland Railway Co v Great North of Scotland Railway Co edited 	I am of the same opinion. It does not certainly occur to me that there is any such ambiguity appearing upon the face of this award as to entitle the parties to a proof for the purpose of clearing up its meaning. The terms of the document are to my mind quite plain and unambiguous. The criticisms that have been made upon its findings by the learned counsel who have addressed us for the Highland Railway Company have no doubt raised, or been calculated to raise, some doubts, whether upon full consideration a better arrangement could not have been made by the arbiter, but really they amount to nothing else than an impeachment of his findings upon the merits. They certainly did not in the least degree suggest the existence of ambiguity.Upon the other point, I think your Lordships are bound to dispose of this case, and ought to take the course of disposing of it. We have heard some statements at the bar, but upon examining the record I can find no statement whatever made on the part of the defenders which could raise a relevant case for setting aside or impeaching the award. They may have such a case, and it may be competent for them to state it. If, notwithstanding our decision in the present suit, they have a right, they may state it. I shall only say that I do not wish to convey a suggestion that in my opinion such a right exists.
Watson	Currie v McKnight	My Lords, the steamship Dunlossit was sold under a warrant issuing from the Sheriff Court of Lanarkshire, at the instance of Samuel M’Knight, a mortgagee, now deceased, whose executors have been made respondents in this appeal. The price of the vessel having been paid into Court, a competition arose between the mortgagee and the present appellant, who holds a decree for damages against the registered owners of the Dunlossit in respect of which he claims a preferable lien attaching to the proceeds of her judicial sale as a surrogatum for the ship.The findings of the decree upon which the appellant’s claim is founded shew that during a night in November, 1893, three vessels were moored alongside of an open quay at Port Askaig, in the Sound of Islay, where there is no harbour. The Dunlossit was in the centre of the tier, the steamship Easdale , belonging to the appellant, being outside of her, and moored to the quay by cables passing over the deck of the Dunlossit . There was a gale of exceptional violence during the night, which made the position of the vessels very insecure. In the morning the crew of the Dunlossit , which was in serious peril of damage from contact with the vessels between which she lay, and the possibility of another vessel moored in front of her coming into collision with her, got up steam, and, after notice of their intention, cut the mooring ropes of the Easdale , and stood out to sea. The Easdale was short-handed owing to the defection of two of her crew, and, being unable to get up steam, was driven ashore and damaged. The master of the Dunlossit acted solely for the protection of his ship against present and possible damage. The First Division of the Court, reversing the decision of the Sheriff-Substitute, held that the cutting of the Easdale ‘s ropes by the crew of the Dunlossit was a wrongful act, for which her owners were responsible. That decree is final, and I have no right to express, and am not to be understood as expressing, any opinion with regard to its merits.The Sheriff-Substitute in the present suit sustained the appellant’s claim, being of opinion that, in the sense of law, the proceedings of the Dunlossit crew constituted an act of the ship which was sufficient to create a maritime lien for the damage thereby occasioned to the Easdale . His decision was reversed, on appeal, by the Second Division of the Court of Session, who dismissed the claim. Three of the learned judges held that, according to the law of Scotland, no lien attaches to a ship for damage wrongfully done by her to another vessel whether by collision or otherwise. Lord Rutherfurd-Clark abstained from expressing any opinion upon that point, which aid not appear to him to arise for decision. All of the learned judges held that, assuming the same right of lien to exist in Scotland as in England, the injuries suffered by the Easdale were not due to the fault of the Dunlossit as a ship.Both these grounds of judgment involve considerations, not of municipal, but of maritime law. Had they been confined to the second point, I should have seen no reason to differ. But the first point is one of considerable importance to the shipping community; and I am unable to concur in the views which were expressed with regard to it by the majority of the Court.From the earliest times the Courts of Scotland exercising jurisdiction in Admiralty causes have disregarded the municipal rules of Scottish law, and have invariably professed to administer the law and customs of the sex generally prevailing among maritime States. In later times, with the growth of British shipping, the Admiralty law of England has gradually acquired predominance, and resort has seldom been had to the laws of other States for the guidance of the Courts. Mr. Bell, who wrote more than sixty years ago, states (II. Comm. 5th edit. p. 500) that the decisions which were at that time of the greatest authority in Scottish Maritime Courts were those of the High Court of Admiralty of England. His statement is fully borne out by the authorities, to three of which I think it sufficient to refer. In 1788 the Court of Session, in a case relating to lien for furnishings made to a ship ( Wood v. Hamilton22 ), ordered the opinion of English counsel to be taken to ascertain the practice of England in such cases, and thereafter gave judgment in accordance with that opinion, although it was contrary to previous decisions of their own Court; and their judgment was affirmed by this House. 23 In the well-known case of Hay v. Le Neve24 the Court of Session followed what they understood to be the rule of the English Admiralty Court; and, in moving the reversal of their judgment, Lord Gifford, who delivered the opinion of the House, said: “We are here on the law of the Admiralty of England.” 25 In Boettcher v. Carron Co.26 the identity of the maritime law of Scotland with that of England was distinctly proclaimed by the late Lord President Inglis, then Lord Justice Clerk, who was certainly not disposed to accept English law in any case where it differed from the law of Scotland. After referring to various causes which had contributed ta produce that identity, his Lordship observed:“It would be very surprising if, at the present day, ships enjoying the privileges and subject to the conditions of British registry should sail from the ports of the United Kingdom under the same flag, and subject to the same statutory regulations in all respects, and yet that, in cases of collision, the legal rights of the parties might vary according as the case might be tried in one British Admiralty Court or another.”It does not appear to me to be doubtful that if the Dunlossit had been so negligently navigated as to run into and sink the Easdale she would, in the absence of contributory fault by the Easdale , have been subject to a lien for the damage occasioned to the latter vessel in any English port; whereas, according to the law laid down in this case, no such lien would have attached to her in a Scottish harbour. That such a conflict should be possible is inconsistent with the views expressed by the late Lord President in Boettcher v. Carron Co.27 , and also with the maritime code which ought to prevail in both countries, which, in my opinion, is neither English nor Scottish, but British law. That there may be conflicting decisions by the Courts of the two countries is possibly unavoidable, seeing that different conclusions may be arrived at even by Courts of the same country administering the same law; and I do not mean to suggest that a Scottish Admiralty Court is less free to examine the merits of an English authority than an English Court is to estimate the value of a Scottish decision, and to accept or reject it according to its own view of the law maritime. But it does not follow that the law either is or ought to be different in the two countries. This House has now become the ultimate forum in all maritime causes arising in the United Kingdom; and as your Lordships are, in my opinion, bound to apply one and the same law to the decision of all suck cases, your judgments upon a proper maritime question, whether given in an English or in a Scottish appeal, must be of equal authority in all the Admiralty Courts of the Kingdom.The Bold Buccleugh28 , which was decided by the Judicial Committee of the Privy Council affirming the judgment of Dr. Lushington, is the earliest English authority which distinctly establishes the doctrine that in a case of actual collision between two ships, if one of them only is to blame, she must bear a maritime lien for the amount of the damage sustained by the other, which has priority, not only to the interest of her owner, but of her mortgagees. The principle of that decision has been adopted in the American Courts; and in the Admiralty Court of England it has for nearly forty years been followed in a variety of cases in which lien for damage done by the ship has been preferred to claims for salvage and seamen’s wages, and upon bottomry bonds. In my opinion, the substantial question which your Lordships have to determine in this case is whether The Bold Buccleugh29 was decided according to the maritime law of Britain. If it was, the rule which it lays down must apply to all maritime causes of a similar kind arising in the Courts of Scotland.It is unquestionably within the authority of this House to reconsider, and if necessary to overrule, the judgment of the Judicial Committee in The Bold Buccleugh30 ; but it is no less clear that the opinions of the eminent judges who took part in the decision of that case ought not to be disregarded without good cause shewn. To my mind, their reasoning is satisfactory; and the result at which they arrived appears to me to be not only consistent with the principles of general maritime law, but to rest upon plain considerations of commercial expediency. The great increase which has taken place in the number of sea-going ships propelled by steam-power at high rates of speed has multiplied to such an extent the risk and occurrence of collisions, that it has become highly expedient, if not necessary, to interpret the rules of maritime liability in the manner best fitted to secure careful and prudent navigation. And in my opinion it is a reasonable and salutary rule that when a ship is so carelessly navigated as to occasion injury to other vessels which are free from blame, the owners of the injured craft should have a remedy against the corpus of the offending ship, and should not be restricted to a personal claim against her owners, who may have no substantial interest in her and may be without the means of making due compensation.The other point as to which the learned judges of the Second Division were unanimous relates to the limits of the shipping rule which was followed in the case of The Bold Buccleugh . 31 I think it is of the essence of the rule that the damage in respect of which a maritime lien is admitted must be either the direct result or the natural consequence of a wrongful act or manoeuvre of the ship to which it attaches. Such an act or  manoeuvre is necessarily due to the want of skill or negligence of the persons by whom the vessel is navigated; but it is, in the language of maritime law, attributed to the ship because the ship in their negligent or unskilful hands is the instrument which causes the damage. In the present case, according to the findings of fact contained in the decree of the First Division, the injuries sustained by the Easdale were not owing to any movement of the Dunlossit ; they were wholly occasioned lay an act of the Dunlossit ‘s crew, not done in the course of her navigation, but for the purpose of removing an obstacle which prevented her from starting on her voyage.I am, therefore, of opinion that upon the second of these grounds the interlocutor appealed from ought to be affirmed.
Watson	Birmingham Vinegar Brewery Co Ltd v Powell edited	My Lords, I am of the same opinion.The argument in this case, as is too common in cases of a similar class, has been exceedingly discursive. The only rule of law involved in the case appears to me to be this - that the appellants have no right to sell the sauce which they manufacture as the goods of the respondent. That is a proposition which does not appear to me, in the circumstances of the present case, to admit of any serious dispute, and I can hardly say that it has been seriously disputed.That being so, the only question to be disposed of is a question of fact. Have the appellants sold their goods in the market so as to represent them as being the goods of the respondent? To that question the learned judge who tried the case, and three learned Lords Justices in the Court of Appeal, have been unanimous in returning an affirmative answer. I should certainly without strong cause shewn hesitate to differ from the concurrent judgments of those two tribunals upon a matter of fact. But I am relieved from the necessity of doing so, because I am bound to say that those portions of the evidence which were brought under our notice by the learned counsel for the appellants appeared to me to confirm the conclusions the learned judges had arrived at. 
Watson	Brocklesby v Temperance Permanent Building Society edited	My Lords, the facts of this case are not in dispute, and the principles of law which must be applied to them are to my mind very plain.A principal employs an agent to raise money on certain securities, and at the same time directs him not to borrow more than a specified sum. The agent goes into the market, and, in exchange for the securities, obtains a loan in excess of the amount prescribed, from a bonâ fide lender who has neither notice nor knowledge of the limitation. The agent, instead of accounting to his principal, applies the excess to his own purposes, and absconds. Does the loss in these circumstances fall upon the principal, or upon the lender?I entertain no doubt as to the answer which must be made to that question. I think the principal, who gave him the means of committing it, must bear the consequences of his agent’s fraud: it appears to me to be just and reasonable that, the agent having the control of the securities, for the purpose of borrowing, with the consent of the principal, a lender, who has no notice to the contrary, should be entitled to deal with him on the footing that he had authority to pledge the securities to the full amount of their value. That such is the rule in equity appears to me to be a corollary from the judgment of Lord Chancellor Cranworth in Perry-Herrick v. Attwood 21 .The London and South Western Bank, as against their advance of £3500, got the title deeds, and thus obtained an equitable charge not, as was suggested in the appellant’s argument, upon the documents of title, but upon the land which they represented. The two companies who are respondents in this appeal advanced the money required to pay the claim of the bank, and the title deeds held in security by the bank were handed over to them. Any equitable interest in the land which had previously pertained to the bank, in respect of its possession of the title-deeds, thus passed to the respondents.It is true that the agent forged a number of documents, which he delivered to the respondents, and by which he probably induced them to advance their money. The respondents can take no benefit from documents which are tainted with the vice of forgery; but that circumstance can afford no reason for depriving them of any right in security which is not affected by that taint.I concur in the opinion delivered by the Lord Chancellor, and in the judgment which his Lordship has moved.
Fitzgerald	Wakelin v London And South Western Railway Co	My Lords, the case of the plaintiff appellant whose husband was killed on the railway is thus put in the amended statement of claim:— “The defendants so negligently and unskilfully drove a train on the said line across the said public footpath, and so neglected to take such precautions in respect to the said train and the said public footpath as were necessary to prevent injury to the public with respect to the crossing of the said public footpath that the said train struck the said Henry Wakelin, the husband of the plaintiff, whilst lawfully on the said footpath, and so injured the said Henry Wakelin that he died therefrom.” The defendants deny the whole of these allegations save that Wakelin was killed by a train of the defendants on or near the footpath. No living person appears to have witnessed the occurrence and the evidence given at the trial does not shew under what circumstances or how or at what precise time the deceased met his death. We have only the admission on the pleadings “that on the 1st May 1882 Henry Wakelin, while on or near a certain public footpath across the defendants’ railway, called Dean’s Crossing, was struck by a train belonging to the defendant company, and so injured that he died on the said day.” The unfortunate deceased was found dead on the railway and we know nothing more of the particulars attending his death save so far as the admission in the pleadings may be supplemented by any inference to be drawn from the defendants’ answer to the 6th of the interrogatories, “that the body of plaintiff’s husband was found on the down side of the line, and he was run upon and killed by a down train.”There was evidence also intended to establish negligence on the part of the defendants, in the absence of due and proper precautions for the safety of the public using that footpath. It seems to me that there was evidence of negligence, but it did not go so far as to establish that such negligence led to the death of Wakelin. It fell short of proving that the immediate and proximate cause of the calamity was the negligence of the defendants. We are left to mere conjecture as to whether it was the causa causans, and that we cannot resort to. The plaintiff undertook to establish negligence as a fact, and that such negligence was the cause of her husband’s death. She failed to do so, and the proper course to have adopted at the close of the plaintiff’s case was to have directed a verdict for the defendants.Manisty J. sent two questions to the jury: “Was there negligence on the part of the company? 2. Was there negligence on the part of the deceased man? If you do come to the conclusion that the plaintiff is entitled to your verdict, that is to say, that it was entirely and wholly due to the negligence on the part of the company, what damages do you think the plaintiff is entitled to?” The jury found for the plaintiff, which was equivalent to a finding in the affirmative on the first question and in the negative on the second, but notwithstanding their finding the learned judge appears to have so seriously doubted that he lent the parties to move for judgment in the Divisional Court. The Divisional Court entered up judgment for the defendants, and in my opinion the decision was right, though I am not prepared to adopt entirely the reasons expressed by that tribunal for its decision. It is not necessary for me to add another word, and I would refrain from doing so if there had not been some reasons given both in the Divisional Court and in the Court of Appeal which I am not prepared to assent to without further consideration. I understand the Master of the Rolls to have laid down that the plaintiff in such a case is bound to establish, first, negligence on the part of the defendants; second, that such negligence caused the injury of which the plaintiff complains; and further, if not involved in number two, that the plaintiff was bound on his case to give affirmative evidence of the negative proposition that he did not negligently contribute to the accident. The latter proposition was not very much pressed in argument before us. It is not necessary for your Lordships to come to any decision on it, but I desire to guard myself against being supposed now to assent to it.Probably in most cases it will be found to be a contest of words only. Contributory negligence in such a case as the present seems to me to consist of the absence of that ordinary care which a sentient being ought reasonably to have taken for his own safety, and which had it been exercised would have enabled him to avoid the injury of which he complains, or the doing of some act which he ought not to have done and but for which the calamity would not have occurred. I have used the words “ordinary care;” extraordinary caution is not required, but if by the use of ordinary caution he might have avoided the injury, and did not, he is not entitled to recover damages.Before the passing of Lord Campbell’s Act, 9 & 10 Vict. c. 93, in a common law action for an injury alleged to have been caused by the negligence of the defendant, and when that most convenient plea “not guilty” was permitted, I always understood that if the defendant relied as a defence on contributory negligence, though he was permitted to establish it under “not guilty,” yet the issue lay on him, and I am not aware that any different rule has been established since the passing of that statute, or since the practice has been adopted of putting in special defences, whether the action was at Common Law for a personal injury or under the statute for a wrongful act causing the death. The plaintiff does not in the statement of claim allege in terms the absence of contributory negligence, and the defendant if he relies on it does so affirmatively by special defence, as in the case now before us. “The defendants further say that the death of the said Henry Wakelin was caused by his own negligence, and that he might and could by the exercise of reasonable care and caution have seen the train approaching and avoided the accident.”It has been truly said that the propositions of negligence and contributory negligence are in such cases as that now before your Lordships so interwoven as that contributory negligence, if any, is generally brought out and established on the evidence of the plaintiffs’ witnesses. In such a case, if there is no conflict on the facts in proof, the judge may withdraw the question from the jury and direct a verdict for the defendant, or if there is conflict or doubt as to the proper inference to be deduced from the facts in proof, then it is for the jury to decide. But if the plaintiff can establish his case in proof without disclosing any matters amounting to contributory negligence or from which it can be reasonably inferred—then the defendant is left to give such evidence as he can to sustain that issue.It may be that the practice of the law has in this respect been altered, or ought to be established on the basis pointed out by the Master of the Rolls, but as yet that has not been shewn to our satisfaction.There is another proposition in the judgment of the Master of the Rolls relating to the same subject-matter expressed thus:—“But although the plaintiff had given in the first instance prim? facie evidence of an absence of negligence on his part, if the defendant brought forward evidence which was contradictory of that, then you came again with the burden of proof upon the plaintiff, because, if upon the conflict of that evidence, part of which was given by the plaintiff and part by the defendant, the jury or the tribunal which had to try the fact is left in doubt whether the plaintiff was or was not negligent, contributing to the accident, the verdict and judgment must be for the defendant, because the burthen of proof lies wholly on the plaintiff.” If the noble and learned Master of the Rolls means that if the evidence is such that the jury might reasonably come to a conclusion in favour of the plaintiff or might reasonably draw a contrary inference the case is to be withdrawn from the decision of the jury and a verdict and judgment go for the defendant, I desire to say that I am not to be taken as acquiescing in that proposition.I am of opinion that the order of the Court of Appeal should be affirmed.
Fitzgerald	Ewings Trustees v Ewing	The lucid and dispassionate judgment of the noble and learned Earl meets with my entire concurrence. That judgment, and the judgments of the noble Lords who have preceded me, have so exhausted the facts and the authorities that I can add but little, and will endeavour to avoid repetition of that which has been already said so well.The Lord President, in expressing his judicial opinion, which is the foundation of the interlocutor of the Inner-House, says that “the action is brought under very exceptional circumstances, and the conclusions of the summons raise questions of great public interest.” I agree in this, and will add for myself that the questions thus raised require the calmest judicial consideration, divested of even the least shade of bias or susceptibility. If my mind could possibly be affected by any inclination it would be in favour of the respondents.The main question before your Lordships’ House, is whether so much of the interlocutor of the Inner-House as “finds and declares and decrees in terms of the declaratory conclusions of the summons” is well founded in law. Those declaratory conclusions may be said to be the first three, which assert in substance and effect that by virtue of “the trust-disposition,” and according to the law of Scotland, the trustees are bound to carry out the purposes of the trust in Scotland, and under the authority and subject to the jurisdiction of the Scottish Courts alone, and are not bound to render any accounts of the estate to the High Court of Justice in England, “or to any other foreign tribunal furth of Scotland.” I interpret “foreign” and “furth,” as meaning “outside the limits of Scotland,” and not intended to convey that England is as to Scotland a foreign country, just as China or Japan would be, or her tribunals alien tribunals.My Lords, I am clearly of opinion that in decerning these declaratory conclusions the judgment of the Inner-House was erroneous. No rule of Scottish law justifies the decerniture of those conclusions.It seems to me that the interlocutor appealed from is so far in conflict with the decision of this House in the former appeal in the English action. Your Lordships were not then “administering a law different from or antagonistic to the principles of the law of Scotland,” or giving effect merely to the rules and precedents of the English Court of Chancery. Tour Lordships in that case determined a question then arising as to the jurisdiction of the latter Court in the sense of its inherent legal authority and the extent of its power.If the question of the jurisdiction of the Court of Chancery in the English cause was now open to us on this appeal, if it could be called in question, I could have no hesitation in determining in favour of that jurisdiction to the full extent to which it had been exercised. The Court of Chancery was there acting in personam at suit of a competent plaintiff against trustees resident within the locality in which, its authority was to be exercised, and their co-trustees, who, on notice, intervened and submitted to the jurisdiction.My Lords, in coming to this conclusion, I rest nothing on the circumstance of a portion of the personalty having been, at the time of the testator’s death, locally situate in England, or of there being English administration to that part of the estate, or of the authority of the trustees to invest the trust-funds, if they should think fit, in English securities; and, on the other hand, it seems to me that the nationality of the trustees does not affect the question.It is worthy of observation that the Scotch conveyancer who prepared the trust-disposition lays no stress on residence as a qualification of the trustees save in one instance, where it is provided that “the major number of them accepting and surviving, and resident in Great Britain, from time to time, being a quorum, as trustees and trustee for the ends, uses, and purposes after mentioned, the said trustees and their foresaids, and their quorum, being hereafter referred to as ‘my trustees.’” The truster, then, after a gift of his whole estate, heritable and moveable, to his trustees, appoints them also his executors, with a direction for the payment of his debts, sick-bed and funeral expenses; and thereafter through the numerous directions of the trust-disposition the appellation “executors” is dropped, and each further provision commences thus :—“I direct my trustees.” The line of distinction between their acts as executors and their duties as trustees is thus sharply defined.It is also observable, if it be a matter of importance, that the truster does not, in the trust-disposition, give any express direction that the trust should be carried out in Scotland, nor is such “his expressed desire,” although I think he may have so intended, for reasons which I will presently point out. The truster declares his intention of purchasing a landed estate, and that, if he dies possessed of it, his wife shall have certain rights in the mansion-house, gardens, &c., but he does not indicate in any way that the estate is to be in Scotland, and it is obvious that, according to the express trusts of the deed, the whole or a large portion of the trust-fund might have been, and still may be, invested in land or other securities in any part of the United Kingdom at the discretion of the trustees.But although the truster’s express declaration (if there had been such declaration) that the trust-disposition should be carried out in Scotland, and under the supervision and direction of the Scottish Courts, could not affect the question of jurisdiction, yet it may form an important element to guide the exercise of judicial discretion. It seems to me that though the truster has not so expressed it, yet he did expect that the trusts of his disposition would be carried out in Scotland, and with the supervision and aid, if necessary, of the Scotch Courts acting in the administration of Scotch law, and according to their well-known and established practice. The greater part—say five-sixths—of the trust-estate consisted of the truster’s share and interest in the firm of John Orr Ewing & Company, in which he was a partner. The truster gives special directions as to how his share of the capital of that firm is to be withdrawn. The second codicil is applicable to a portion of the same capital to the extent of £100,000, and the assumption of two of his nephews, being also two of the residuary legatees, as partners of that firm, and it seems reasonable to assume that the truster had in view that the trusts of this portion of the trust-fund should be carried into operation in Scotland by the trustees he had selected, and, according to Scotch practice, extra curiam. The whole instrument, too, it is obvious, is one couched throughout in the language of Scotch conveyancing, and must be interpreted according to Scotch law. If difficult questions should arise as to the rights of the legatees—and it would he too sanguine to anticipate that such difficulties may not arise—such questions must be decided according to the law of Scotland.There is a passage of the trust-disposition which somewhat illustrates the view I have expressed, and is as follows:—“And I do hereby nominate and appoint my trustees to be tutors and curators, or tutor and curator, to all persons taking benefit under these presents who may be in pupillarity or minority, and who may not have any tutors or curators, quoad such benefit during their respective pupillarities and minorities, and without prejudice to the powers, privileges, and annuities conferred upon trustees by any Act of Parliament applicable to Scotland, or to which trustees may be entitled at common law; all of which, in so far as not inconsistent herewith, are hereby conferred upon the said trustees, executors, tutors, and curators. I hereby authorise my trustees, if they think fit, to wind up or carry on, or concur in winding up or carrying on, any business or adventure in which I may be engaged at my death, either by myself or in company with others, and to make such arrangements and settlements in connection therewith as they may think proper, to allow any share or interest which I may have in any business in which I may be concerned along with others to remain in the hand of my surviving partners or partner for such period and on such terms, with or without security, as they may in their discretion deem advisable, and that notwithstanding the terms of any contract of copartnership which may then be existing.” It will be observed that the truster here avails himself of the practice under the law of Scotland which enables the donor to appoint tutors and curators of his gift during the pupillarity and minority of the beneficiary, at the same time preserving for them, or conferring upon them, the protection of “any Act of Parliament applicable to Scotland,” and he also authorises his trustees to carry on any business or adventure in which he may be engaged. He does not appear to have been engaged in any business save in Scotland.I cannot help regretting that the certificate of the Chief Clerk in the English action was disturbed. He certified on the 18th of February 1881,—“This action has not been properly instituted, and it is not fit and proper, or for the benefit of the infant plaintiff, that the same should be further prosecuted.” That certificate was discharged by the Master of the Rolls, on the ground that he considered that the action was for the benefit of the infant; but if it had been open to him as a matter of judicial discretion, it would seem to me to have been more expedient to have let that action stand dismissed, although it would still have been open to the father of the infant, if he thought fit, or to the mother, acting through a next friend, to have instituted another and properly constituted suit for the protection of the interests of the infant, but subject to the consideration of “ forum non conveniens. ”It seems to me to be undesirable to canvass the merits or defects of the diverging lines of procedure in the respective Courts of the two countries, or to consider whether either is “fortunate,” the one in the possession of the privilege of an “administration suit,” or the other, in the absence of that blessing, or whether the statement of the Lord President 61 has not disclosed an infirmity in Scotch practice in not providing any adequate means for the protection of beneficiaries, such as the residuary legatees in the present case. An action of multiple or double poinding would not seem to me to be sufficient or applicable. On the question of comparative expense I can form no opinion. It may be that “the Chancery Division” viewed from a distance, and through an exaggerated medium, carries with it no small degree of apprehension both as to the duration and the cost of its procedure; but, on the other hand, we have no information as to the fees or commission or percentage of the judicial factor, or whether payable on the whole fund, or on its income only, or on both, or of the probable expenses or costs of the several actions or proceedings which may from time to time be necessary in carrying into effect trusts which must extend over a long period of time before the day of final exoneration shall have been reached.I concur in the opinions expressed that the Courts of Scotland are as entirely independent of the High Court of Justice in England as the latter Court is independent of the Courts in Scotland. The judicatories of the two countries are as independent of each other as they were before the Act of Union, and there is nothing in that Act or in the Imperial Statutes since to militate against that independence, although there has been some wholesome legislation which tends to make each to be ancillary to the other in the due administration of justice in cases coming within their proper jurisdictions. I do not find it necessary to go further, or to adopt the opinion of Lord Campbell that the two countries are, for the purposes of judicial jurisdiction, “to be considered as independent foreign countries unconnected with each other,” or “as if they were the judicatories of two foreign states.” That proposition seems to me to be unnecessary for the decision of the present case, and was not necessary for the decision of the Marquis of Bute’s case, and is so extensive as probably to involve consequences not now quite foreseen.Thus, for instance, the Lord Ordinary in his very learned judgment, proceeding very much on this basis, says, “It is perfectly clear that if the practice of the Court of Chancery in England is inconsistent with international law no Court of a foreign country is bound to respect it.” And again, in commenting on the 19th Article of the Treaty of Union, he is represented to have added, “Scotland has a law different from that of England; and, quoad that law, it is an independent state entitled to demand from England adherence to the rules of international law which determine the rights of natives of foreign states which may be made the subject of action in her Courts.” And again, “If this case be appealed to the House of Lords, it will have to determine, not any rule as to Chancery practice, but a question as to international law—that is, quoad hoc, the law of Scotland. The House of Lords cannot, or, at all events, ought not to consider, in reference to the question brought before them by an appeal from this judgment, any other point than this, whether, according to the law of nations, this rule of the Chancery Court of England must be respected by a foreign Court, when the people of that foreign country in recognising it would be thereby subjected to grievous expense and many inconveniences; and when, moreover, the practice itself is contrary to all sound principles of international law.”I think it to be unnecessary to follow in these particulars, or to criticise the reasons of the Lord Ordinary, and I may pass from this part of the case by observing that, in my opinion, no question of international law arises. There is no real conflict of jurisdiction between the two judicatories. It presents a case of concurrent jurisdiction and no more. Though there is no conflict of jurisdiction, there may arise what would more properly be called a collision between the practice of the independent Courts of separate divisions of the same United Kingdom, which would properly be settled by the judicatories of the two countries acting in ancillary courtesy to each other, or by this House, as the supreme and final Court of Appeal, or, if it cannot be effected otherwise, by legislation of the Imperial Parliament.There remains only for me to consider whether the interlocutor of the Inner-House can be maintained so far as it sequestrates the estate and pronounces an interdict against the trustees. There is no question as to the jurisdiction of the Court to decree a sequestration, but as to whether the authority to do so ought to have been exercised. On this question I entertain serious doubt. When a sequestration is decreed it at least implies that the fund is in danger. No danger existed, and the interdicted trustees had committed no default, and, on the contrary, have been active and straightforward in the performance of their duties.I understand, however, in the course of the argument, that the appellants’ counsel did not question the authority of the Court of Session to decree a sequestration, or the due exercise of its judicial discretion, and on that it seemed to me that it only remained to settle the terms of capitulation.As to the appointment of a judicial factor, which seems to be a necessary sequence of the sequestration, I shall only say that I doubt whether his appointment, liable as it may be to abuse, is an equivalent in protection to the fund being brought into Court, and paid out to the legatees on the orders of the Court.On the whole, I concur in the order about to be proposed for your adoption by the noble and learned Earl.
Fitzgerald	Lord Blantyre v Babtie	My Lords, from an early period of this hearing I had no doubt as to the decision at which in furtherance of justice your Lordships ought to arrive, if it was practicable to do so, namely, that Lord Blantyre should receive compensation from the council for the benefits of the reservoir and the supply of water for the burgh of Dumbarton which they took from that reservoir by a circuitous course, and under a claim of right now decided to be unfounded.My Lords I concur willingly in a decision which defeats the device by which the council of Dumbarton sought to acquire this supply of water without paying just compensation for it. It is plain that a majority of the judges in the Court below proceeded upon, or were at least very much influenced and misled by, an erroneous construction of the grant to Dunn.My Lords, there has been considerable difficulty in the interpretation of the award, but on the whole I concur in the construction of that instrument adopted by your Lordships, and so fully expressed by my noble and learned friend opposite (Lord Watson).My Lords I desire for myself to acknowledge the assistance I have derived from the clear argument of Mr. Dundas.
Fitzgerald	Bouch v Bouch	My Lords, I concur with my noble and learned friends, and am of opinion that, for the reasons given, the judgment of the Court of Appeal should be reversed. At the close of the argument at your Lordships’ Bar I had arrived at the conclusion that the directors of the Consett Iron Company, acting within their powers, had so dealt with the extra allowance or bonus made to the shareholders out of accumulated profits and reserve fund as to make that “bonus” capital and not income. I differ from the Court of Appeal, not in its able exposition of the law, but as to the proper inferences to be deduced from the admitted facts. Fry L.J. puts the question thus: “There remains another question, namely, whether the way in which the declaration of this bonus or dividend was coupled with the creation of new capital did or did not amount to a capitalisation of the bonus?” Upon this question I have felt myself unable to follow the Court of Appeal, and I adopt the view of Kay J. The reasoning and the decision of Lord Hatherley in In re Barton’s Trust 59 then directly apply.The proceedings at the ordinary general meeting of the 4th of September 1880, and the documents which emanated from it, together with the resolutions of confirmation, have been so carefully and critically examined by Kay J. and by my noble and learned friends, that I can add nothing. I adopt their view of the facts, and the proper inferences to be drawn from them.The opinion which I had formed at the close of the case, and to which I adhere, renders it unnecessary for me to criticise any of the endless chain of decisions by which the argument was supposed to be illustrated.Solicitors for appellants: G. H. Barber & Son. Solicitor for respondent: R. T. Jarvis for Hutchinson & Lucas, Darlington.Judgment appealed from reversed; order of Kay J. restored 60 ; the respondent to pay the costs of the appeal to this House and the costs in the Court of Appeal, and also to repay to the appellants the costs paid by them of the proceedings before Kay J. and in the Court of Appeal; cause remitted to the Chancery Division. Lords’ Journals 13th June 1887. The order of Kay J. expressed the opinion that the bonus of £2 10s. per share sanctioned on the 25th of September 1880 on the 600 shares in the Consett Iron Company, Limited, was capital of the estate of the testator William Bouch, deceased: And declared that the plaintiff as executor of William Bouch’s widow was not entitled to payment of the amount of the bonus or any part thereof, nor to the 200 new shares allotted to Sir Thomas Bouch or any part thereof: And ordered accordingly.(c) Incorporated Council of Law Reporting for England & Wales
Fitzgerald	Woodward v Goulstone	My Lords, I concur in thinking that the decision of the Court of Appeal ought to be affirmed. I am quite willing to follow the great judges who decided Sugden v. Lord St. Leonards 16 in the conclusions at which they finally arrived, but am not disposed to go one hair’s breadth beyond. That case might be truly said to have reached the very verge of the law and it ought not to be extended.The short view which I take of this case is that there is no satisfactory evidence of the contents of this will. I shall say a word presently as to the factum of the will, but assuming that the factum of a will has been established to the satisfaction of the Court I can find no evidence whatever as to the contents of the will which would justify the Court in acting upon it.The declarations of the testator have been offered and received in evidence. Still even the testator, after the supposed execution of this testamentary instrument, never tells us what its contents were. There are some obscure statements, no doubt, such as that he made a will according to his expressed intention, but beyond that there is no evidence whatever of any statement by him of the contents of the will; and if I were acting as a judge in the Probate Court, I should hold that there was no evidence sufficient to warrant me in granting probate of the supposed will.There is another question, namely, whether even supposing that there was some satisfactory evidence of the residuary bequest the Court ought to grant probate of the residuary bequest alone, for the reasons stated in Sugden v. Lord St. Leonards 17 . I do not intend to express any very strong opinion upon that, for I do not think that that question is before us. I do not think that there is any satisfactory evidence that there was in this will a residuary bequest in favour of Peters. He never saw it; the testator never tells us of it; and the witnesses in favour of the factum of the will, who are produced under circumstances not free from suspicion, do not tell us one word as to the contents of the will or of this residuary bequest. A testator when dealing with the residue of his property must be taken to contemplate that the bequests previously given, or some of them, may fail,—that a legatee may die,—and therefore he may be deemed to have had the intention that the lapsed legacy should fall into the residue; but it is a very different proposition indeed that he intended that if his will were stolen or lost and there were no evidence of the other bequests contained in it the residuary legatee should take the whole of his property. Here the personalty is estimated at £25,000 and the realty is said to be worth £10,000. If we accepted that proposition we should infer that the testator intended, under such circumstances as are supposed to exist in the present case, that the residuary legatee was to take the whole of his estate. Whenever that question comes to be fairly raised and discussed it will be for the House to decide it, but it is in no way before us.A good deal has been said as to the admissibility in evidence of parol statements of testators alleged to have been made after the factum of the will. Upon that I wish to reserve my opinion. My impression is that however such statements of the testator were dealt with in Sugden v. Lord St. Leonards 18 the true ground upon which such evidence ought to be received, if received at all, was not fully discussed, and it is not necessary to decide it now. Therefore I reserve my opinion upon it.There only remains the application to postpone the decision in this case and remit the cause to the Court below to take the evidence of Perrin by commission or otherwise. That is a somewhat perilous step to take, and I do not think that we should be justified in taking that course unless we were clearly satisfied that the evidence was such as would be fairly reliable and go to the very point at issue between the parties. The affidavits which were read the other day, so far from satisfying my mind cast suspicion upon the whole case. For the first time it turns out upon these affidavits that when Peters had taken possession of the property of the testator he did not originally make this case which he now makes of a will with a bequest of the residue in his own favour. Whatever had taken place between himself and the testator on that subject seems to have escaped his mind. He rested upon a very different document, a will which is in existence, in fact a prior will of the testator. He then proceeded by advertisements, I presume by offers of a reward, to see if any one could tell whether another will had been executed, and then two clerks appeared. That is an element, I will not say of suspicion, but requiring most careful consideration before you take it that the factum of the will has been established. In addition it is observable in this case that those two witnesses, who profess to have seen this document, never tell us a word of its contents. Why do they call it a will? One of them never read a word of it. I mean the clerk who went to witness its execution. The clerk who is alleged to have made a fair copy of it cannot even tell us a syllable as to the remarkable thing that there was in that will which he so copied, a residuary bequest in favour of Peters. Upon the whole it is not to my mind very clear that the factum of the will has been satisfactorily established.Then we have to deal with the application as to Perrin. The affidavits are to me very unsatisfactory, looking at the mode in which Perrin’s evidence has been called for, and the demand for a stipulated consideration on his part. I do not object to a sum of money in the first instance to pay his expenses, but it is plain that he was only willing to give evidence upon the supposition that if his evidence was effective hereafter he was to be rewarded for it. And even when we do come to it he recollects nothing that we can rely upon but the residuary bequest in favour of Peters. In my opinion it is not under such circumstances that the House should depart from its ordinary course, postpone its judgment, and remit the cause, not for the examination of Perrin viv? voce before a competent tribunal in this country, but for his examination upon written interrogatories under commission in America. This is not a case in which the House ought to depart from its ordinary course and suspend further proceedings. We have the satisfaction of knowing that if this will is ever discovered, or if there is persuasive and satisfactory proof which will enable the Court to say that the will and its contents have been established, the parties may propound the will again.
Fitzgerald	Wright v Horton	My Lords, the debenture book of the company on the counterfoils of which was kept a full list of the debentures issued by the company, and which probably contained adequate information for all reasonable purposes, was nevertheless not a register of mortgages, as it did not comply with all the requisites of the 43rd section of the Act of 1862; but it is not alleged that in this neglect to comply with the provisions of the section there was any fraudulent omission on the part of the company or its office bearers, or that there was any concealment, or any intention to deceive or mislead, or that any debenture-holder or creditor was deceived or misled or injured thereby.In one of the affidavits filed on behalf of the appellants Mr. Joseph Wright states that “the debenture book from which all debentures of the company were issued was supplied for the use of the said company as being a proper debenture book, and was always regarded by us as constituting a true and sufficient register of debentures, and we were unaware that any other book was essential for such purpose. The said debenture book contained 200 lithographed forms of debentures. Each of these forms was attached to a counterfoil and contained a description of the property mortgaged or charged, the amount of and the nature of the charge created, and the name of the mortgagee or person entitled to such charge. The printed paper now produced and shewn to us marked ‘A’ is one of the said counterfoils with form of debenture attached.” It would seem too that the debenture holders and creditors had within their reach means of information as full for all reasonable purposes as if a proper register existed. I allude to these matters to clear the front, and reduce the question to one of law, on the construction of the 43rd section .The appellant Wright being a director of the company, Chitty J. held that his debentures were for want of due registry invalid as against creditors, so far as they charged the property of the company. We now proceed on the admission that the appellant’s debentures were not duly registered, and that he was all the time a director of the company.Chitty J. in his decision properly yielded to prior authority binding on him. The hearing in the Court of Appeal was formal only, to enable the parties to come to this House for a final decision. The respondents have the considerable advantage of a series of decisions in their favour, commencing with In re Wynn Hall Coal Company 31 ; but on the other hand a great judge, Sir George Jessel, whenever the opportunity fairly presented itself, never failed to express his dissent, and we can easily read in the judgment of Bramwell L.J. in In re South Durham Iron Company 32 , that he too was dissatisfied. In that case at p. 595 Baggallay L.J. says: “They” (that is Sir George Jessel and Bramwell L.J.) “are both of opinion that the decisions in Ex parte Valpy & Chaplin 33 and In re Native Iron Ore Company 34 should have been different.” Although sect. 43 imposes a mandatory obligation on the company to keep a register, and to enter in it certain particulars of each charge, it does not declare that the absence of registry, or a defective registry, shall either avoid the charge or in any respect invalidate it. There is no word in the 43rd section importing any such result. In the second branch of the section imposing penalties for wilful omission, “If any property of the company is mortgaged or charged without such entry,” the statute seems to concede that the security is complete on the grant of the mortgage or charge and is not invalidated by non-registry. It was not denied that even if the mortgage or debenture had been originally granted to a director or officer of the company, and had been subsequently bon? fide transferred to a third party, it was good in the hands of the transferees though it had never been registered. The statute imposes penalties on directors, managers, and officers of the company for knowingly and wilfully permitting the omission to enter on the register the particulars required by the 43rd section, and if it was intended in addition to invalidate the unregistered mortgage or charge, if in the hands of a director, manager or officer to whom it had been granted, the statute has not said so.It seems to me that the decision of Malins V.C. in the case of In re Wynn Hall Coal Company 35 , so far as it purports to rest on the construction of the language of sect. 43 , cannot be sustained. Mellish L.J. says in In re Native Iron Ore Company 36 that the rule established by the preceding cases “is founded on a perfectly good equitable principle,” but what that principle is I have been unable to discover. In the preceding part of his judgment in the same case he puts it thus:“It is an established rule that where a director or officer of a limited company advances money on the security of a debenture or mortgage of the company and omits to register it in accordance with the Act, the consequence is that he has no charge against the creditors.” Is it then a personal equity against the director or officer? It may thus be put:—If the director knowingly and wilfully omits to register he is subject to a penalty of £50, and if the omission relates to a security of his own, he in addition loses his security. If there is no wilful omission, if it is innocent, as in the present instance, he nevertheless loses his security on some “perfectly good equitable principle.” Baggallay L.J. took part in the decision of In re Native Iron Ore Company 37 , and in the subsequent case, In re South Durham Iron Company 38 , in an elaborate judgment he states what he considers to be the principle of the prior cases thus: “If a director of a company advances money to the company, and takes as security for such advance a charge upon property of the company and omits to register such charge, he is not at liberty to avail himself of such security as against the other creditors of the company.” But on what foundation does this forfeiture rest if not on the language of the statute? And there it is not to be found. It seems to me that the effect of these prior decisions has been to inflict a forfeiture which the statute does not impose, in addition to the penalty which it does. I quite concur with my noble and learned friend that we cannot add to the weighty reasons of Sir George Jessel in the case of In re Globe New Patent Iron and Steel Company 39 , which, with him, I adopt. The prior decisions may have been wholesome, but they are not warranted by the statute, and I know of no equitable principle on which they can be sustained.
Fitzgerald	Boswell v Coaks (No1)	My Lords, although I acquiesce in the judgment which your Lordships have indicated, I desire to say that I do so with hesitation and some unwillingness.I have carefully attended to and considered every word of the elaborate reasons expressed by the noble and learned Earl, and of his critical examination of the facts in evidence; yet I have not been able to relieve myself from the impression that Lord Romilly was, I will not say overreached, but misled in an important particular.The question before us however on this appeal is whether fraud has been actually proved.Baggallay L.J. in his judgment, when he defines the obligations of intending purchasers in dealing with the Court, says: “A person desirous of buying property which is being sold under the direction of the Court must either abstain from laying any information before the Court in order to obtain its approval, or he must lay before it all the information he possesses and which it is material that the Court should have to enable it to form a judgment on the subject under its consideration.” The rule thus expressed is to some extent too wide, and ought to be limited thus,—that if he professes to give the Court information on any particular subject with a view to guide its discretion and obtain its approval of the proposed sale, he is bound to lay before the Court all the material information he possesses on that particular subject. Thus in the present case if the defendants professed to lay before Lord Romilly information as to the insurability of the life of E. K. Harvey, including the annual rate at which insurances could probably be effected, they were bound to lay before him all the information which they had on that very material matter.The origin of this litigation was the order permitting Mr. Coaks to bid at the auction sale. If there was one individual in the community to whom that liberty should not have been given, who should not have been relieved from the disability attaching to his position, that person was Mr. Coaks. He, and he alone, seems to have had the fullest and most complete information of the circumstances connected with the peculiar property about to be sold. That information would have been most valuable to the Court in adopting the proper expedients to make that property most productive for the benefit of the parties whose interests were under the protection of the Court, and for whom Mr. Coaks was also concerned. I may add that if the result of such an order is to place the trustee, solicitor, or other fiduciary party in the same position as an ordinary purchaser, and subject only to the same obligations and duties to the Court or vendor as if he had been but an ordinary purchaser, then I should say that the making of such an order ought to be rare and exceptional.The order was however made. It seems to me not to have been a provident order, and that the supposed safeguards which accompanied it, such as that Messrs. Linklater were not to communicate any particulars to Mr. Coaks, were of very small value. Relieved from his disability, Mr. Coaks became master of the position, as the remaining history of the case fully indicates. [His Lordship after discussing the evidence as to the insurances proceeded as follows:—]The question before your Lordships is not one of law, but of the proper inference to be deduced from the facts in proof; and though I have not come to the conclusion that fraud has been established, yet I cannot avoid saying that on the whole case the impression left on my mind is, that Lord Romilly was misled, and was induced to sanction the sale to the defendants at a much lesser price than he would have done had all the facts as to the insurability of the life of E. K. Harvey been submitted to him.I desire specially to say that I do not mean to impute blame to Mr. Brown. No one on this hearing has done so. I entertain no doubt of his truth and candour, nor that in a very difficult case he performed his onerous duties towards the Court and suitors with care and with honour. He is said to have been at the time a young practitioner, and possibly not sufficiently experienced to cope with Coaks and Bunyon.I have waded through the 1400 pages of printed matter before us, and with no impression favourable to the defendants; but I am unable to say that fraud has been so established in proof as to justify me in dissenting from your Lordships’ expressed opinions. The case must be decided on proof, and not on considerations of mere speculation or impression.While acquiescing, however, in the judgment, I dissent from that portion of the proposed order which gives costs to the appellants.
Fitzgerald	Bentley v Vilmont	My Lords, it seems to me unfortunate that we have not the facts before us as to the alleged contract between the claimants (Galpin and Crochard) and Hodder or Hodder and Klein, and as to what was the character of the false pretence by which the alleged bargain was rendered voidable. The only statement we have of the facts is to be collected from the judgment of Denman J.:“Between January and March 1885 Hodder obtained some goods from Galpin and Crochard which we must take to have been obtained by false pretences, so that there was an obtaining of them as far as appears by some bargain or other which was a bargain which might have been avoided, but there was an obtaining of them. Between March and May the goods had been pawned by this man Hodder who had so obtained them with a person of the name of Dobree, a pawnbroker, and Dobree not, I suppose, having premises of his own to store them in, stored them at the premises of a man named Starbuck.” The goods may have been obtained by falsehood on the part of the supposed vendee which would lead to the conclusion that there never had been any contract of sale. The additional matters of fact are succinctly stated in the report 34 , but I need not further advert to the particulars, for it seemed agreed by the parties on the argument that your Lordships should dispose of the appeal on the basis that there had been a contract under which the property in the goods in question passed to the vendee (Hodder), but under such circumstances that the bargain was so vitiated by the false pretences of the vendee as to render it voidable at the option of the vendor.We must however go further and assume that the false pretence of Hodder was of some existing material fact false to his knowledge, by which he obtained not only the bargain but the possession of the goods. Hodder having got possession of the goods (merinoes and cashmeres), pawned them with Dobree, but when exactly or under what circumstances does not appear, and Dobree sent them to be finished and exposed for sale at the shop of Starbuck in the city of London where Bentley, the defendant in the issue, bought them on the 30th of May 1885 under circumstances not now impeached and which amounted to a sale in market overt. The appellant does not rest his claim on any other title than the purchase in market overt. Galpin & Crochard elected to avoid the contract. We must take it that they did so, but when or how does not appear, save that on their prosecution Hodder and Klein were committed for trial on the same 30th of May and since tried and convicted in September, 1885, of obtaining the goods in question by false pretences.We have had a very able and interesting argument, but I need not follow it through all its details, for it was admitted by counsel for Bentley, looking to the long current of authorities, that if the goods had been stolen from Galpin & Crochard, though purchased by Bentley in market overt, he could not deny that on conviction of the thief the original owners Galpin & Crochard would have been entitled to the restoration of the goods. It seems to me that it was right to make this admission, for when we find a long train of decisions all pointing the same way we ought not to disturb them even though we should think that it would have been more expedient, if practicable, to give full effect to a sale in market overt. The practice and current of authority has been the same in Ireland as in England, but especially since the decision in Reg. v. Horan 35 , in which on a question reserved ten judges took part and were unanimous.The case before your Lordships is thus reduced to the question whether Moyce v. Newington 36 was well decided. If it was well decided the appellant (Bentley) has established his right to succeed on the issue, for that case is exactly in point. I concur with my noble and learned friends in opinion that Moyce v. Newington 37 cannot be supported, as it seems to me to rest not on what the legislature has expressed but on what it ought to have said. I am unable to adopt the conclusion of the Chief Justice that the language of the legislature applies and is obviously intended to apply to cases and to those only in which possession has been obtained without the property passing. The legislature has not said so, and in my opinion did not intend to say so. The legislature seems rather from the time at which it first made obtaining goods by false pretences a misdemeanor to have put the misdemeanor and the cognate and closely allied offence of larceny on the same ground as to the right of restoration on conviction. I refer inter alia to 7 & 8 Geo. 4 c. 29 , the title of which is “An Act for consolidating and amending the laws in England relative to larceny and other offences connected therewith.” Sect. 53 enacts “And whereas a failure of justice frequently arises from the subtle distinction between larceny and fraud; for remedy thereof be it enacted that if any person shall by any false pretence obtain from any other person any chattel, money, or valuable security with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor.” “Provided always that if upon the trial of any such person it shall be proved that he obtained the property in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted.” And sect. 57 enacts:“And to encourage the prosecution of offenders be it enacted, That if any person guilty of any such felony or misdemeanour in stealing, taking, obtaining or converting &c., any chattel &c., shall be indicted for any such offence by or on behalf of the owner of the property or his executor or administrator and convicted thereof, in such case the property shall be restored to the owner or his representative.” And again by 18 & 19 Vict. c. 126 (the Criminal Justice Act ) where a summary jurisdiction is given in certain cases of larceny and false pretences, sect. 8 provides, “It shall be lawful for the justices by whom any person is convicted under this Act to order restitution of the property stolen, taken or obtained by false pretences, in those cases in which the Court, before whom the person convicted would have been tried but for this Act, may be by law authorized to order restitution.”The legislature seems to me in these general statutes, including 24 & 25 Vict. c. 96 s. 100 , to have dealt with and expressed the right to restoration of the goods on the conviction of the offender in the same language and depending on the same event whether the offence was the felony of larceny or the misdemeanor of false pretences. If we were to adopt the view of the Lord Chief Justice (though it might be desirable to be able to do so) the consequences would probably be more extensive than at first sight appears; e.g. it would seem then difficult in such case to sustain a conviction for obtaining goods by false pretences where the contract was such that as between the vendor and vendee it was not absolutely void, but voidable only at the election of the vendor.I have only to add that by this decision we do not intend to interfere with the principle established in White v. Garden 38 .
Fitzgerald	Pritchard v Bangor Corp	My Lords, I also concur in the judgment which has been delivered by the Lord Chancellor and generally in the conclusions at which he has arrived, and also with my noble and learned friend opposite (Lord Watson) in the very guarded language in which he has expressed his opinion upon the course of this election and its legal results.In order to maintain his position in reference to the remedy which he has sought to put in force Mr. Pritchard, the appellant, was bound to make out certain propositions: first the ineligibility of his opponent, Mr. Roberts. That point was properly raised by Mr. Pritchard by the objection which he made to the nomination of Mr. Roberts. That was a proper mode of raising the objection. But the statute gave to the mayor the authority of determining in the first instance upon objections made to nominations. The mayor disallowed the objection, and accordingly Mr. Roberts was presented to the electors as a person eligible for election to the office which he sought. The appellant was bound to make out further, in order to bring himself into a majority, that the voters were not only aware of the fact on which the alleged ineligibility of Roberts arose, but also that they had notice that in consequence the votes given by them for Roberts would be absolutely lost and thrown away. This involved matter of fact which neither the mayor nor the returning officer had any authority to investigate. These two questions, the one prim? facie disposed of by the mayor and the other subsequently arising as to whether the votes given for Roberts were lost or thrown away, were questions to be legally and properly determined in the terms of the statute. That jurisdiction is a new one expressly intended to achieve promptness of decision at a small expense. The process prescribed is a very simple one. The statute declares that these questions shall be determined on petition.The remaining proposition which the appellant is bound to make out, and without which he could not have the remedy by peremptory mandamus, even supposing that the two other questions were determined in his favour, is that he was full of the office, that is, that he had been legally returned as the person legally entitled to that office, and that he had done all that was necessary by law to put him in full possession, but was kept out of it by the action of the corporation or of some intruder. It is upon that ground, and upon that ground alone, that under the circumstances he could have maintained a right to a mandamus. A peremptory mandamus may be given where the office is legally full, and the person lawfully entitled is kept out of it by some action of the corporate body or of some intruder. I quite concur in the observations made by my noble and learned friend opposite (Lord Watson), and I would now conclude if it were not that I wish (I am speaking now for myself only as an individual member of the House) to guard myself against any supposition that I concur in the strictures which have been pronounced in the Court of Appeal upon Reg. v. Coaks 24 . That case represents a decision in my judgment of very high authority, and it appears to have governed the practice for a great number of years. I regard it still in that light; and if we had now to determine the question whether Roberts was disqualified or not, whether he was eligible or ineligible (whichever way you choose to put it), I should regard Reg. v. Coaks 25 as a direct authority upon the question, if there has not been any such alteration in the law made by the Act of 1882 as renders it inapplicable to the present case, a question upon which I am not at all satisfied, and desire to express no opinion. I by no means agree in some of the criticisms upon that case which were pronounced in the Court of Appeal. The Master of the Rolls says: “It seems to me that the judges decided that case upon a view that by the special verdict, with regard to this proposition, the case was practically stated out of Court.” Another of the Lords Justices makes this observation: “I am of opinion that that question” (that is, the question of disqualification) “was never considered by the Court at all.” I cannot adopt this view.Reg. v. Coaks 26 was sought to be passed by in the Court of Appeal upon another ground, which I must not be taken as adopting, namely, that by operation of law the acceptance of an inconsistent office, i.e., the office of councillor, vacated the office of alderman. Upon that I express no opinion.Upon the whole, I concur in the judgment which has been moved by the Lord Chancellor. 
Fitzgerald	Neilson v Mossend Iron Co	My Lords, I would willingly have come to a different conclusion, but I have been coerced to say that in my judgment, as in that of the noble and learned Lords who have preceded me, it is impossible upon any reasonable construction of the first article, if it is applicable, to apply it to a partnership at will terminable at a moment’s notice. If it terminates by a partner saying, as in words like those put in the case of Featherstonhaugh v. Fenwick 10 , “It is my pleasure on this day to dissolve the partnership,” then ipso facto it ceases to exist as a partnership, and the legal results follow unless they are controlled by some article. Even omitting the first article and striking it out altogether, I tried as well as I could to apply the 12th article to a partnership at will, but I found it utterly impracticable; and therefore I feel myself coerced to agree with the judgment which has been proposed.
Fitzgerald	Attorney General v Marquis of Ailesbury	My Lords, the committees of the estate of Sir Henry Meux thought that it was advisable that the large accumulations of money standing to the credit of the lunatic’s estate should be invested in the purchase of real estate, but could not do so without the sanction of the Court, to be obtained on establishing to the satisfaction of the Court that it was for the benefit of the lunatic that the investment should be made.The committees entered into a preliminary negotiation with the Earl of Clarendon for the purchase of an estate, and obtained from the Court the order of the 27th of April 1865 authorizing the committees on behalf of the lunatic to employ competent surveyors to ascertain the value of the estate, and to enter into a provisional contract for the purchase subject to the approval of the Court.The provisional agreement for purchase was made on the 19th of June 1865, by which the Earl of Clarendon agreed to sell to Sir Henry Meux, and the said Sir Henry Meux by his committees agreed to purchase, the freehold and inheritance of the estate in question for £225,000. On the ordinary reference the Master in Lunacy reported that it was fit and proper, and for the benefit of the lunatic, that the provisional contract should be adopted and carried into effect. On that report the ordinary reference was made by the Court to settle a proper conveyance to the committees “in trust for the said Sir Henry Meux his executors administrators and assigns, with a declaration that the said estate is to be considered as part of the personal estate of Sir Henry Meux.”In pursuance of that order the conveyance of the 30th of June 1866 was settled and executed to the committees and their heirs in trust for Sir Henry Meux his executors administrators and assigns, and it was thereby “declared that the manors, advowsons, hereditaments and premises hereinbefore expressed to be hereby granted are to all intents and purposes to be considered as part of the personal estate of the said Sir Henry Meux.” The purchase was so completed because it was judicially considered that to do so was for the benefit of the lunatic, and it was probably at the time a wise determination having regard to his position, the state of his family, and the provisions of his will made whilst he was of sound mind.We are now dealing with this case for revenue purposes only. As the Inland Revenue Act declares that probate duty is to be paid “on the estate and effects in respect of which probate is to be granted,” and as the imposition of a duty of the kind requires clear and unambiguous language which ought not to be extended so as to embrace matters not plainly within the purview and intention of the Legislature, I had led myself to think that the question was, What was the character of this estate at the time of the death of Sir Henry Meux? On that question there could be no real difficulty. It was “land” purchased for his benefit, and remained such to the period of his death, and was not subject to any contract or obligation to treat it otherwise than as land or to any trust or duty in any one as against Sir Henry Meux to reconvert that land into money, nor was there any right in any one to call for its reconversion. It seemed to me, therefore, that it would be simpler and more in accordance with the sound construction of the statute and with principle to consider this estate for revenue purposes to be what it physically was—“land”—and not subject to probate duty as if personal estate, but coming under other Acts for the purposes of duty or taxation as real estate, and liable to taxation or duty in that character.We have had the benefit of two arguments characterized by learning and ability, and I have read the judgment of the noble and learned Earl and the judgment of the noble and learned Lord who is to follow me (Lord Macnaghten), accompanied by reasons of a weighty and exhaustive character. It seems that for a great length of time a theory has existed in equity, which has been carried into effect in practice, that an investment of the money of a lunatic in the purchase of land under such conditions as are now before us does not change its character or its destination. It remains “money” for all intents and purposes and unchanged in character during the continuance of the lunacy, and up to and at the time of the death of the lunatic if he has had no lucid interval.I think it would be unsafe and unwise to shake a doctrine and a practice so long established and acted on, and on that ground I concur in the conclusion at which the noble and learned Earl has arrived.
Fitzgerald	Blackburn Low And Co v Vigors	My Lords, in this very interesting case I concur in the order which will presently be proposed by my noble and learned friend the Lord Chancellor. I adopt entirely the reasons which have been given by the Lord Chancellor and by my noble and learned friend opposite (Lord Watson). The judgment delivered by the Master of the Rolls was one of more than usual ability—it was a considered judgment, prepared with care and upon a critical examination of the authorities; and I am prepared to adopt that judgment and substantially the reasons given by the noble and learned Lord for the conclusion at which he arrived, though not every portion of those reasons.
Fitzgerald	Concha v Concha (No1)	My Lords, upon the main point of the case I entirely concur, both for the reasons given by Bowen L.J. in the Court below, supplemented as they have been by the Lord Chancellor, and for the very weighty reasons coming from my noble and learned friend opposite (Lord Blackburn), that is as to the effect of the finding in the decree of Sir Cresswell Cresswell with regard to the domicil of the testator. I think that there has been no estoppel in any direction there. All that Sir Cresswell Cresswell could determine by his decree would have been what I suggested in the course of argument, namely, having regard to the terms of the statute, first the validity of the will, secondly its contents, and thirdly that the executors of that will were the persons entitled to probate; and beyond that he was not called upon to decide anything whatever. If he had never expressed an opinion one way or the other upon the subject of domicil, his decree nevertheless would have been the same, I mean in result though not in form, as that which is brought before us.I am therefore of opinion that taking it as a proceeding in rem there is no estoppel of any kind; and when you come to deal with it as a finding inter partes the obvious answer to it is that Trinidad was not a party to that suit—he was then an infant. The decision, which was not necessary to the case before Sir Cresswell Cresswell, did not and could not bind him. It is a part of our law as to estoppel that an estoppel to be effective must be mutual. It would not bind Trinidad, he not having been a party to that suit, and therefore there is no estoppel inter partes. I therefore concur in thinking that the main appeal should be dismissed.I confess that as to the other question I have some difficulty, and did in the course of the discussion entertain some difficulty. I suppose it is from my not comprehending the Rules that I have been unable to discover that there is any one of the rules or orders which applies to this particular case. They all seem to me to be based upon this, that you are entitled by notice to call on your adversary to produce for cross-examination the witnesses whose affidavits he is using and who are witnesses under his control, and whom he can compel to appear. One of the subsequent orders shews that it is limited in that way; and I have been entirely unable by dovetailing one rule into another to come to the conclusion that there is any rule directly and in terms applicable to the case before us, and I proceed to consider the case as if there was no such rule. Undoubtedly the practice of the Court of Chancery has always been to receive evidence by affidavit; but it is always guarded in this way, that if a party tenders evidence by affidavit he ought in some shape or other to afford to his adversary an opportunity for the cross-examination of the deponent; and it is clear to me that as yet that opportunity has not been given to Trinidad. Now it is true that he moved for the commission of 1882, but the inquiry then was limited to another subject, a subject of common interest to all, that is, whether Adelinda was legitimate or illegitimate. If she was illegitimate it potentially put an end to the litigation; if legitimate then other consequences arose. Accordingly the cross-examination which was provided for by that commission was limited to that inquiry. I have looked into the cross-examinations, and I find that no question was put beyond that. That point was determined in her favour. Then she assumes a different character, she becomes an actor to establish her right, founded upon her legitimacy, to the gananciales which she derives through her mother, an item of very considerable amount, and it is upon that right that subsequently notice is given upon her behalf, and for the first time given, to use those affidavits as evidence with reference to the proper amount of the gananciales which she seeks to recover.I should be very sorry to dispose of this case upon mere formalities or non-observance of directions and rules as to the form of notice; but there is the broad question whether Trinidad ought now to be affected by evidence given in his absence by a deponent who only gives it by affidavit,—evidence materially and largely affecting him, and which certainly he has not, up to the present moment, had the opportunity of testing by cross-examination. Now the materiality of the evidence will be shewn by this: the gananciales are now to depend upon the evidence as to the law of Peru, and also the question of amount. We will take the affidavit of Don Julian Concha, the one brought before us, and it contains this clause. After stating that his brother told him of his realizing during his married life property to the amount of $1,700,000 he says, “My said brother Don Juan Jos? Concha informed me that the whole of his fortune had been made during the lifetime of his wife and first cousin Dona Maria Concha, that she was a woman of great talent, and that he was indebted to her for a great part of his fortune.” That is the very foundation upon which this law as to the gananciales rests. That statement is made, and every word of it Trinidad ought to have an opportunity to cross-examine about. This affidavit is filed in the Court, and a part of it only has been used, that part of it applying to the legitimacy question. Up to the time of this appeal it was never used to establish either the amount of or the right to the gananciales.My Lords, I should have had great difficulty upon this question in upholding the decision of the Court of Appeal, but I see another ground upon which it may be rested. After all, this affidavit is in evidence, and it is a matter of judicial discretion in the Court to determine how and in what manner Trinidad shall have an opportunity of cross-examination. What the Court said is this:—You had a commission in 1882—you applied for and obtained that commission—under it you did not cross-examine as to this matter but we will give you an opportunity of doing so—we will pronounce in favour of the admissibility of this document; but we are bound to do another thing, we are bound to see that there is no abuse of the process of the Court—we are bound to see that delay is not created for another object—we are bound to see that the powers of the Court are only used to advance justice; and therefore we hold in our own hands the power to direct by whom this commission should be sued out and prosecuted, and we offer to you the opportunity of coming within a fortnight, and if you can satisfy us that your application is bon? fide, that it is not (as Lord Justice Fry says) a mere blocking of the course of the cause, but that you really want this cross-examination as to this very material affidavit, come in a fortnight and we will determine whether you are to have it and upon what terms. I cannot say that that was not within the judicial discretion of the Court of Appeal. They have exercised that discretion possibly in a way that I should not have done myself. I should rather have thought that there was a matter approaching to an abstract right on the part of Trinidad to say, These are all witnesses under your control. You are to produce them for my cross-examination, and I ought not to be driven to a commission under which unless I have your assistance I have no means of compelling the attendance of the witnesses to be cross-examined.The case to my mind is not very clear—it is not free from doubt—but my doubts are not so very strong that I should venture to dissent from the opinions of judges of so much weight and experience. I may point out too that it is necessary to be very cautious in this case having regard to the nature of the litigation. There are I think no less than eight Chancery suits in existence proceeding pari passu, including the three instituted by the testator himself and twice revived since his death; and as the Vice-Chancellor well says, thirty years have elapsed since the earliest of them was instituted, and he sees no reason why thirty years more or twice thirty years should not elapse before a final decision is come to. That shews the great necessity for not interfering with the exercise of judicial discretion.
Fitzgerald	Soper v Arnold	My Lords, I have, during the course of this rather singular and unusual case, had upon my mind a considerable degree of hesitation in affirming the judgment of the Court below; but a great deal of it has been removed by the argument which Mr. Barber has addressed to us. Therefore I am able to say that I do not dissent from the judgment which has been announced by the noble and learned Lord on the woolsack—nay more, that I concur in it.
Fitzgerald	Mersey Docks and Harbour Board v Henderson Bros	My Lords, the plaintiffs in the action are the representatives of an extensive steamship company, proprietors of a line of steamers commonly known as “The Anchor Line.” The defendants (appellants) are a body of trustees controlling under statutable powers in one public trust the port of Liverpool and the Mersey Docks. The question relates to the dock tonnage rates paid under exceptional circumstances, possibly not actually contemplated in 1858, when the Mersey Dock Acts Consolidation Act was passed.The plaintiffs claim a return of alleged over-payments. There is no fact in dispute. The question is one of law arising wholly on the proper construction of sect. 230 of that Act, but on that question your Lordships may derive some assistance by reference to the language of some sections in the repealed Act of 1811. The code, portions of which have been amended and consolidated in the Act of 1858, extends over a period of 179 years, commencing so far back as 1709. The undisputed circumstances may be taken from the appellants’ case:“The plaintiffs’ steamers commence to load goods at Glasgow, where they take in a portion only of their cargo, the amount so loaded at Glasgow varying from time to time according to circumstances; never being a full cargo, but ordinarily sufficient to enable them to proceed to Liverpool without other ballast. All the goods so loaded at Glasgow are shipped under a bill of lading in which the vessel is stated to be ‘lying in the port of Glasgow, and bound for ‘Bombay vi? Liverpool,’ and the ship is cleared from Glasgow for Bombay vi? Liverpool.’ The said goods so loaded at Glasgow are intended to be and are in fact carried to and discharged at Bombay and are not taken out of the said ship after leaving Glasgow until her arrival at Bombay. Upon leaving Glasgow the said steamer proceeds to the port of Liverpool, where she enters one of the appellants’ docks. The steamer is not cleared or entered at the custom house at Liverpool as a vessel trading inwards. She does not discharge at Liverpool any of the cargo taken on board at Glasgow, nor do the appellants receive rates of any kind in respect of that cargo. In one of the appellants’ docks the steamer loads for Bombay such cargo as may be ready for her, and then leaves the dock, clears at the custom house as a vessel trading outwards, and departs from Liverpool to Bombay. At Bombay she discharges the whole of the goods so carried from Glasgow and Liverpool respectively and then loads homeward cargo.” It is, however, to be borne in mind that as the plaintiffs’ vessel would be under no obligation to return to Liverpool, and frequently brings her return cargo to some other port, and does not come to Liverpool, she might thus evade the Liverpool dock tonnage rates altogether, if she did not pay at Liverpool on the outward voyage.The terms of the 230th section of the statute of 1858 and the questions for the decision of your Lordships which arise on it have been stated by the Lord Chancellor. The 11th part of the statute applies in the first instance to “dock tonnage rates,” commencing in sect. 230, the rating clause, and declares that “All vessels entering into or leaving the docks shall be liable to pay dock tonnage rates;” that is to say, “to or from the port of Liverpool from or to any parts or places mentioned in the schedule, and such rates shall be paid, &c.” The schedule is referred to only for the purpose of fixing the scale. The obligation is imposed in language as clear as could be used for the purpose.There can be no doubt that the plaintiffs’ vessel comes within the charge as a vessel entering into the docks, unless there is to be found in the statute some provision which makes her liable to the 4½d. rate as a vessel trading inwards to Liverpool, or unless the statute has omitted to provide for the exceptional circumstances. Sect. 230 then declares that “such rates shall be paid by the masters or owners and shall be charged as follows.” It deals with first, “vessels trading inwards.”The respondents (plaintiffs) contended that their ship, which had left Glasgow with part of her cargo and cleared from Glasgow for Bombay vi? Liverpool, became on her arrival at Liverpool a vessel “trading inwards,” although she carried no cargo for Liverpool, discharged no goods there, made no entry “inwards” as of a ship trading inwards, and called at the port of Liverpool solely for the purpose of taking in cargo already provided for her to be carried to Bombay, the port of her final destination. My Lords, I am of opinion that the respondents’ vessel was not, under the circumstances stated, a vessel “trading inwards” within the meaning of the statute.We have received in the course of the argument abundant assistance from references to other sections of the particular statute and also in the Customs Act. I may supply an additional example. In the Mersey Act, sect. 166 , provision is made for “landing and depositing the inward cargo,” and several other sections have been referred to, which clearly to my mind shew what is meant by “trading inwards,” and indicate that the respondents’ ship did not come within that description.Mathew J., dealing with the contention that the plaintiffs’ vessel arriving at Liverpool, with part of her cargo for Bombay on board, ought not to be considered to be a vessel “trading inwards,” says:“The position seems to me altogether untenable,” and disposes of the case on the basis that she was a vessel trading inwards. Fry L.J. in dealing with the same question puts it thus:“The words ‘trading inwards’ would, we think, most naturally, and therefore primarily, apply to the case of a vessel entering the docks for the purpose of discharging her cargo; but we think that the words may without violence describe also any vessel laden with goods in the course of trade entering the docks for the purposes of her trade, whether loading or unloading, and thus include one of the plaintiffs’ vessels arriving from Glasgow; for she is a vessel on a trading voyage; she is a trader and she enters inwards.” My Lords, I am unable to follow Mathew J.; and whilst I accept the interpretation which the Lord Justice describes as “most naturally and therefore primarily” to be adopted, I cannot accept the interpretation which he says may be “applied without violence” as descriptive of the plaintiffs’ vessel. If not “violent” it would seem to be forced and contrary to the ordinary grammatical and statutable interpretation of “trading inwards.”Sect. 230 next deals with vessels “trading outwards” thus: First, “Vessels arriving in ballast, but trading outwards.” It was contended for the appellants, but rather feebly, that the respondents’ ship was a ship that arrived in ballast. None of the judges gave any countenance to this suggestion; and it seems to me that according to the ordinary signification of the words she could not be deemed to be a vessel “arriving at the port of Liverpool in ballast.”Secondly, “also vessels built within the port of Liverpool.” The respondent’s vessel was not such. Thirdly, “or trading outwards.” She was a vessel trading outwards, but the respondents contend that “or” must be read “and,” and the provision would run thus “and also vessels built within the port of Liverpool and trading outwards,” so that the respondents’ vessel would not come within this portion of the charging definition of the section. But the word is “or,” and has a sensible meaning in its position, and why should we take the great liberty of blotting it out and substituting another word, the result of which might be to create a “casus omissus?” We ought not to create a casus omissus by interpretation save in some case of strong necessity. The respondents contended that it was necessary to take this strong step in order to prevent a contradiction with a similar passage to be found subsequently in the same section, where the word used is “and,” but I have been unable to discover the contradiction or the repugnancy. The passage alluded to is at the conclusion of the section, thus: “Vessels arriving in ballast and trading outwards, and vessels built in the port of Liverpool and trading outwards, and having paid the rates payable on such trading outwards, shall afterwards on trading inwards be liable to the rates payable on vessels trading inwards.” But in this passage the words “ and trading outwards “ are essential to provide for the eventuality and give it proper effect, and are not in the least in contradiction with the words “or trading outwards” or the provision in the earlier part of the section.The respondents’ vessel then not having been a vessel “trading inwards” nor “arriving in ballast,” nor built in Liverpool, we should probably have been obliged to consider it a casus omissus, as to which Fry L.J. properly says, “no casus omissus can be admitted,” or, I should rather observe, ought to be created. We find other words which without any strain are applicable and may have been introduced as an amendment to meet an exceptional case. If it was a casus omissus it would seem to follow that on the outward voyage from Glasgow to Bombay vi? Liverpool the respondents’ vessel would not be within the charge for any dock tonnage rates at Liverpool, although she entered the docks and used them whilst taking on board a substantial portion of her cargo for her outward voyage.The words in the earlier part of the section “or trading outwards” seem to me to meet the case that has arisen, and to be applicable. The respondents’ vessel entering the docks and trading outwards was as such liable on that outward voyage to the outward dock rates charged on her.The 230th section declares that “one arrival with one departure shall be considered as one voyage.” The respondents’ vessel was a vessel arriving at Liverpool though not in ballast nor trading inwards, and she departed thence to Bombay. That arrival and departure constituted one voyage, in respect of which she became liable to dock tonnage rates. She took on board at Bombay a fresh cargo and left, bound for Liverpool and Glasgow. She arrived at Liverpool, discharged part of her cargo, and departed from Liverpool for Glasgow. That arrival and departure constituted a second voyage in respect of which the respondents became equally liable to dock tonnage rates.The Attorney-General stated that the real contest was a fight against what he called the double payment. My Lords, I am of opinion that this real question should be ruled against the respondents, and their action dismissed.
Fitzgerald	Milnes v Huddersfield Corp	 My Lords, before reaching the conclusion at which I have finally arrived I thought it essential to examine the pleadings and ascertain the exact issue.The action was preceded by a notice, the substance of which was that the mayor, aldermen, and burgesses of Huddersfield supplied, sold, and delivered to the said John Jessop Milnes certain water, which, according to the provisions of the Act of Parliament ( 10 & 11 Vict. c. 17 s. 35 ), they were bound and required to supply of a pure and wholesome nature, and sufficient for his domestic use, whereas the same water was not of such pure and wholesome nature, but contained lead, free acid, and other substances likely to injure the health of the said John Jessop Milnes. Nothing now turns on the word “sold.” The fourth paragraph of the statement of claim which alleged a sale was struck out by amendment. The notice, it will, however, be observed, rests entirely on sect. 35 of the General Act of 1847, and on the duty or obligation created by that section. The statement alleges, in conformity with that notice, that the plaintiff “was entitled as such inhabitant by virtue of the said statutes to demand and have a supply from the defendants of pure and wholesome water sufficient for his domestic use. In or about March 1875 the defendants laid down their water-mains near the plaintiff’s house, and for reward then paid to them by the plaintiff put down leaden service pipes to conduct the water to the plaintiff’s said house and connected such pipes with their said mains. From the time of making such connection of the said pipes with the mains, the defendants have for reward continuously supplied the plaintiff with water from such mains through the said service pipes for his domestic use. In or about August 1881, and for many years previously thereto, the water which the defendants thus supplied to the plaintiff was impure and unwholesome. It was contaminated with deleterious substances. It has from that time been, from time to time or continuously, impure and unwholesome and contaminated as above stated.” The plaintiff’s particulars allege that “the deleterious substances with which the said water as supplied by the defendants to the plaintiff was contaminated” were “lead or some poisonous compounds of lead and acids which acted upon the surface of the lead pipes through which the water was conveyed to the plaintiff.” The statement of defence is in substance:—“The defendants admit that, in or about October 1874, they laid down their water mains near the said house now occupied by the plaintiff. The defendants put down leaden service pipes to conduct the water to the said house at the request of and for reward then paid to them by the plaintiff’s landlord, or other his predecessor in title. The said service pipes so put down were forthwith connected with their said mains. The defendants have continuously supplied the said house with water from the said mains through the said service pipes since October 1874, and have thus supplied the plaintiff since he became an inhabitant as aforesaid. The water so supplied by the defendants to the plaintiff was pure and wholesome water, and was supplied in its natural condition, uncontaminated and pure, just as derived from the springs and sources authorized by the said special Acts in that behalf,” and on that defence the plaintiff joined issue. It will be perceived that the matter which the plaintiff undertook to establish was that the defendants in violation of their duty under sect. 35 of the Act of 1847, “supplied the plaintiff with water from such mains through the service pipes which was impure, being contaminated with deleterious substances.” The requisition on which the water was supplied to plaintiff’s premises was as follows:—“To the corporation of the borough of Huddersfield,—19th of October 1874.—Gentlemen,—Please supply with water the under-mentioned property in accordance with your rules and regulations. Description and situation of property,—1, House, Grove Place, Dalton, occupied by J. J. Milnes. I hereby agree to pay for the pipe to supply water in accordance with the above description. I am, Gentlemen, yours respectfully,—William Marsden.” I understand by “the pipe” the thirty-nine feet of half-inch pipe from the defendant’s main to the plaintiff’s premises, to which at a subsequent period fifty-three feet of three-eighths inch pipe was added at the plaintiff’s request to conduct the water to a tap at the rear.In the view which I take of this case it is not necessary for me to examine minutely or to criticise the evidence of the professional experts which, as was to be anticipated, exhibits considerable divergences of opinion. There is a statement in the appellant’s case that “it was admitted at the trial that the water supplied to the appellant was wholesome if drunk at the mains,” and Mathew J. in his judgment states, and no doubt with entire correctness, that “it was not contended that there had been any want of care or skill on the part of the defendants or their agents, and it was admitted that the water while in the mains from which the plaintiff’s supply was taken was pure and wholesome, and in its natural condition, as it was drawn from the sources specified in the Act of 1869. It was further admitted that the material used for the service pipes was that which was best adapted for the purpose, and that it had been used with perfect safety for the supply of a great number of large towns.” At the close of the trial, after some skirmishing as to whether some and what questions should be sent for the decision of the jury as to the alleged impurity of the water, and whether or not it was due to sulphuric acid, the judge finally says—“Mathew J.: The only question as it seems to me, for the jury is the question of the amount of damages. Mr. Wills: I think so; I think the specific nature of the impurity, if I am right in the general result of the evidence, is proved. Mathew J.: That this water became unwholesome on being delivered from the service pipe, and the defendants are responsible for the delivery from the service pipe. That is your position. Mr. Wills: Yes, I think the particular cause seems to be immaterial. That has been my view throughout.” And damages were thereupon assessed by the jury, all questions being reserved for argument. The practice of this House now is to eliminate the case from mere technicalities, and let decision rest on principle and on the substantial merits.The final object of our system of pleading, so far as it has been suffered to continue, is to develope a certain and material issue on which the rights and liabilities of the parties may be determined, and should your Lordships confine the plaintiff to the issue which he has tendered to his adversary you will decide on the reality and substance of this case. The plaintiff has alleged the nature and extent of the defendants’ obligation and assigned a breach of it. The onus lies on the plaintiff.The obligation of the 35th section of the General Act of 1847 is that which we have first to deal with. It is not disputed that the word “pipes” in that section is to be interpreted as meaning “the mains to be laid down by the company,” and the obligation cast on the defendants by that section is “to provide and keep in their mains a supply of pure and wholesome water, sufficient for the domestic use of all the inhabitants of the district” who, as thereafter provided, “shall be entitled to demand a supply.” The water should be pure and wholesome in the mains, but the statute does not add that it shall continue to be pure and wholesome under all circumstances. I have been unable to find in the Act of 1847 any provision that would add to or increase that obligation in any point material in the present action. The Special Act by its 27th section incorporates the provisions of the Act of 1847, and enacts that it “shall apply to the whole of the waterworks undertaking of the corporation,” but it does not increase the obligation of s. 35 . There are other sections in the Act of 1869 to which I will presently have to advert.I have come to the same conclusion as my noble and learned friends Lords Blackburn and Bramwell, but with some and not inconsiderable hesitation, that the plaintiff has failed to establish any breach of the statute duty or obligation on which alone he rests his action, and that judgment should therefore be given for the respondents.It is sometimes very desirable that your Lordships, dealing with cases where several questions fairly arise, any one of which may be sufficient in itself to dispose of the action, should nevertheless proceed to express the decision of this House on all or more than one of the questions in the cause. As for example, in the very recent case of Colonial Bank v. Whinney 11 , where two questions arose on the interpretation of a section of the Bankruptcy Act of 1883 , the decision of either of those questions against the respondent rendered it necessary to reverse the decision of the Courts below and give judgment for the appellants. Your Lordships, however, decided both questions, and adversely to the respondent. Those questions, though distinct, were fairly and properly raised on the pleadings, there was an issue on each, the Courts below dealt with and expressed their decision on each, and it was expedient for the public good that your Lordships should do likewise. In the case now before the House it seems to me to be inexpedient to express an opinion on the several other questions which have been raised only in argument, and which affect the interests of undertakers for supply of water and of water companies as well as consumers throughout the United Kingdom.My noble and learned friend the Earl of Selborne in his eloquent reasoning refers principally to one view of the case, which is by far the most important of all, but which it seems to me can be properly settled on a firm and just basis by legislation only. The statute of the 10th of the Queen became law on the 23rd of April 1847, and in the thirty-nine years which have since elapsed, experience has taught many lessons, and amongst others the necessity of binding water undertakers and water companies with strict and rigid fetters and of defining very clearly their liabilities towards the public. The provisions of that Act are scarcely adequate to the exigencies of the present day, and it may be desirable to reconsider them. It has been already observed that there is no count for negligence, nor any allegation of want of due and reasonable care on the part of the corporation, and a large question has been raised whether an action lies against the undertaking corporation in the absence of these averments, and on that question I refrain from indicating any opinion.Referring now to the Act of 1869, and to the bye-laws framed under its 66th section, though entertaining the opinion that the entire length of lead pipe from the main to the tap at the rear of the plaintiff’s house with the exception of the stop-tap by which the corporation regulates the supply, is the property of the plaintiff, though under the control and management of the corporation, yet I forbear to express any opinion as to whether the material was, on the whole, improper to be used, or whether the bye-laws which prescribed its use were ultra vires, or whether an action lies against the corporation in any shape for the consequences of thus prescribing lead or for the mode of supply after the water leaves the mains. It will be seen thus that the conclusion which I have arrived at is that the water to be so supplied was to be supplied from the mains. As it came from the mains it was pure and wholesome. It was “conducted” from the mains through the pipes of the consumer to the consumer for his use, and it was in those pipes that it took up “lead.”In my opinion the plaintiff has failed to sustain this action, and as to whether he can maintain any other and what action I offer no opinion.
Fitzgerald	Lord Advocate v Young	My Lords, we are bound to determine this appeal by the light of Scotch law deduced from Scotch judicial decisions to which we have been referred and now so well settled as not to be questioned. There seems to have been no difference of opinion between the Lord Ordinary and the judges of the Second Division, that if the feu charter of 1804 had been a royal grant expressed in the same terms it would as interpreted by Scotch law have been sufficient to pass to William Young of Burntisland the exclusive rights which the pursuer now claims.The grant of 1804 is not a Crown grant, nor was it made by one who is shewn to have derived from the Crown, but on the interpretation of its terms, and especially in the use of the expression “pertinents” (which is of very potent and comprehensive meaning and sufficient by Scotch law to pass every subject in connection with the land which usually goes to the vassal as accessories to the subject expressly granted) it would as between the parties to that instrument have passed to the grantee the sea shore ex adverso the land actually granted.The grant not being from the Crown, or from one being a grantee of the Crown, though possibly from the evidence it would be practicable to infer a grant from the Crown, it seems admitted on all sides that the onus is cast on the pursuer to shew that he has had for twenty years at least continuously and as of right that quiet and peaceable possession without lawful interruption which under the Act of 1617 now protects him from being disquieted by the Crown or any other pretending right.By possession is meant possession of that character of which the thing is capable. The difference between the Lord Ordinary and the Second Division was one of fact, and I have, but not without some difficulty, adopted the view of the facts and the in ferences to be deduced from them propounded by my noble and learned friend.If the appeal had related to similar rights either in England or in Ireland I would have hesitated much before reaching a conclusion favourable to the pursuer.
Fitzgerald	Last (Surveyor of Taxes) v London Assurance Corp	My Lords, I should have found it very difficult to eliminate from the case stated the question for your Lordships, decision if it had not been for the light afforded by the judgments in the Divisional Court and Court of Appeal. It was admitted, as I understand, in the course of the argument that your Lordships’ decision on the one question before you must largely, if not entirely, depend on your Lordships, interpretation of the contract between the company and the holders of policies of the participating series. The participating policy is in the ordinary form with nothing to indicate its special character, but the true agreement is to be found in the printed prospectus of the company under the head of “life department.” “Division of profits. Two-thirds of the gross profits of the participating series of policies are allotted every five years to the assured, every policy in force at the date of the valuation being entitled to participate. The assured have the option of receiving their share of the profits in cash, or of appropriating it in increase of the sum assured, or in reduction of the future annual premiums.” In the preceding page of the prospectus, but under the same heading, the following passage occurs:—“The bonus to the assured is increased owing to the arrangement by which, in consideration of a fixed percentage of the gross profits of the life assurance business, the corporation bears all the expenses of management.” I am not to be understood as resting my judgment on the use of the term “profits,” though it is not to be put out of consideration, but I had rather examine into the substance and reality of the agreement. It would be difficult to arrive at a construction of this portion of the prospectus without some extraneous aid; but it has been assumed in the argument that the participating policy entitled to a share in two-thirds of the gross profits at the time of the quinquennial distribution must be then in full force and have been so for the preceding five years. If it has lapsed or from any other cause, as for instance the death of the assured, has come to an end within that period, there is no claim to participation; and if it has not reached five years of age the holder must wait for the distribution at the end of his first term of five years. The question is whether the company is liable to pay income tax in respect of that portion of its annual receipts which it designates as “two-thirds of gross profits” and quinquennially allocates to the participating policy-holders who at each distribution may come within the terms of the prospectus. I have been unable to reach the elements which are taken into the calculations of the company for the purpose of ascertaining what is termed the “two-thirds of gross profits” at each quinquennial allocation. The amount varies, and on the first example given in the prospectus it would seem that it necessarily varies according to the mode in which the benefit is claimed by the recipient; thus, in the example so given, if he claims to have his share added to his policy the accretion may amount to £66 8s., being two-thirds of what he has paid during the five years, but if taken in cash the bonus in cash is but £24 17s. That example I presume represents a period without exceptional loss. But it may be that the losses are such as to extinguish profit on the five years, and there could then be no allotment, or to reduce the profits and the allotment accordingly. It does not represent any proportion of the actual receipts from this class of the company’s customers though it may approximate to it. 16 & 17 Vict. c. 34, sched. D. imposes income tax on “the annual profits or gains arising or accruing to any person from any profession, trade, employment, or vocation.” We are bound to adopt the interpretation put on “profits” in the Mersey Docks v. Lucas 6 , that the expression means “the incomings of the concern after deducting the expenses of earning them” or “income of whatever character it may be over and above the costs and expenses of receipt and collection,” and that “the gains of a trade are what is gained by the trading for whatever purpose it is used.” On looking again at the prospectus, page 4, where the income of the company is given for the year 1880, it will be found that under the head of “income for 1880” the first item is “life premiums £149,160 1s.,” in which no doubt the whole sum received in respect of life policies, including the participating series, is put down as annual income. The judgments of Day J. in the Divisional Court and of the majority of the Court of Appeal rest on the ground that the sums allotted to the participating policy-holders under the name of two-thirds of the gross profits for the quinquennial period are to be treated as an expenditure made to get the customers to come in, and not an annual profit chargeable with income tax under the Income Tax Acts. After careful consideration, and with every desire to reach the same conclusion, I have been wholly unable to do so. The premiums payable by the participating policyholders come into the coffers of the company quarterly, half-yearly, or annually in ordinary course and form part of the annual income of the concern. When received those moneys are probably invested, the profit of the investment also forming a part of the income; and I cannot see that they the less form part of its annual income because at a subsequent period of time a part of the gross profits (if any) realised may be allotted to certain of the policy-holders. It seems to me, on the contrary, to be annual “income” after deducting the proper expenses of earning it, and subject to income tax notwithstanding its subsequent special destination. The prospect of a future participation in profits is held out as an inducement to customers to insure in the participating series, and probably has proved to be successful, but it seems to me to be a very forced interpretation of the contract and position of the parties to put it down as part of the expenses of making the income.No one could truly say after the judgment of my noble and learned friend (Lord Bramwell) that the case is free from doubt. I agree with him that the question we have to decide is one of importance, but I am unable to follow him in thinking that the decision which your Lordships are arriving at is to produce the extensive results which he has pointed out.The conclusion I have reached on the case as it comes before us, and not on any supposititious case, is that the premiums paid to the company in respect of the participating policies form part of the annual profits of the company just as much as any other portion of their revenue, and that the quinquennial allotments represent no return to the policy-holders of any aliquot proportion of the premiums they have paid, but do constitute what the parties have correctly described as a participation in two-thirds of the gross profits, if any, realized in the quinquennial period.
Fitzgerald	Darley Main Colliery Co v Mitchell	My Lords, the real, though not the formal question for your Lordships’ determination is whether Lamb v. Walker 84 was correctly decided. My noble and learned friend (Lord Blackburn) rightly deals with this appeal in the same light as if it was an appeal from Lamb v. Walker 85 . I do not propose to follow my noble and learned friend in his instructive examination of Lamb v. Walker 86 , and Backhouse v. Bonomi 87 , and his criticisms on those cases, but I think that we may deduce from the authorities some propositions as now settled in law, and applicable to the circumstances of the appeal now before your Lordships’ House, and to similar cases:—I proceed to state those propositions though in doing so I am conscious of the danger pointed out by my noble and learned friend, Lord Bramwell.1. That the owner of the surface has a natural and legal right to the undisturbed enjoyment of that surface in the absence of any binding agreement to the contrary.2. That the owner of the subjacent minerals may excavate and remove them to the utmost extent, but should exercise that right so as not to disturb the lawful enjoyment of the owner of the surface.3. That the excavation and removal of the minerals does not, per se, constitute any actionable invasion of the right of the owner of the surface, although subsequent events show that no adequate supports have been left to sustain the surface.4. But that, when, in consequence of not leaving or providing sufficient supports, a disturbance of the surface takes place, that disturbance is an invasion of the right of the owner of the surface, and constitutes his cause of action.The foundation of the plaintiff’s action then seems to be that although the excavations of the minerals were acts by the defendants in the lawful enjoyment of their own property, yet when subsequently damage arose therefrom to the plaintiff in the enjoyment of his property, the defendants became responsible.For although the law encourages a man to the free use of his own property, yet, if in doing a lawful thing in the enjoyment of that property he occasions damage to his neighbour which might have been avoided, he will be answerable for that damage whenever it occurs.Now as to the cause of action in 1868, there is no doubt that the mere excavation prior to or in 1868 was legitimate, and not of itself alone the foundation of any right of action, but when the subsidence of that year took place and caused damage to the plaintiff’s houses, then the defendants became liable to make good that loss, because though their acts were in the lawful use of their own property, yet the injurious consequences to the plaintiff might have been avoided. It is the disturbance then, when it arises, that is the cause of action, and not the prior legitimate acts of the owners of the minerals in the lawful enjoyment of their own property.But although this be true, yet still the question which arose in Lamb v. Walker 88 , and which was not expressly decided by this House in Backhouse v. Bonomi 89 , remains now to be considered and finally decided. There was a subsidence in 1868, causing special damage, giving the plaintiff a cause of action, and in respect of that damage he accepted compensation, which, it seems agreed, is equivalent to a recovery of damages in an action if such an action had then been instituted.In 1882 a fresh and distinct subsidence took place, causing special damage to the plaintiff.It was admitted before your Lordships, rather late in the argument, but for the purpose of better enabling your Lordships to come to a conclusion:—“That after the partial subsidence in 1868 the strata remained practically quiescent until the working of the coal in the next adjoining land by the owner thereof in the year 1881, which working caused a creep and a further subsidence.” And further:—“That if the owner of the adjoining land had not worked his coal there would have been no further subsidence, and that if the coal under the respondent’s (plaintiff’s) land had not been taken out, or if the appellants (defendants) had left sufficient support under the respondent’s (plaintiff’s) land, then the working of the adjoining owner would have done no harm.” It will be observed on these admissions that the partial subsidence of 1868 had practically ceased, and that a fresh creep and subsidence took place in 1882, which would not have taken place if the defendants had left sufficient natural support under the plaintiff’s land, or, we may add, had substituted adequate artificial support.There can be no doubt that though there has been no act of commission by the defendants since the completion of the excavation of 1868, yet if there had been no subsidence causing damage to the plaintiff prior to that of 1882, the present action could be maintained; but it is alleged that as the plaintiff had a complete cause of action in 1868, arising from the prior excavation and the subsidence of 1868, the Statute of Limitations then commenced to operate, and has barred the present action. It was further argued that in 1868 the plaintiff could and ought to have insisted on recovering once and for all any damage that might arise prospectively from the excavation of 1868, according to the rule of law which, in order to prevent a multiplicity of actions, provides, that damages resulting from one and the same cause of action must be assessed and recovered once and for all.  That rule was applied by the majority of the Court in Lamb v. Walker 90 , and is not controverted. It is not inflexible, and admits of exceptions.We have to consider what was the cause of action in 1868, and whether the cause of action of 1882 (the creep and subsidence of 1882), is one and the same cause of action as that of 1868. If it is so, then the defendants are entitled to succeed on the defence of the Statute of Limitations .This appeal represents a class of cases peculiar and exceptional, to meet which and to avoid grave inconvenience, if not injustice, our flexible common law has somewhat moulded itself. I deprecate discussing some of the arguments addressed to us, which seemed to me to be too fine, such as for instance whether the original act of the defendants was “innocent,” or “perfectly innocent.” The question here is not whether the original act of the defendants was “innocent,” but whether the defendants have occasioned damage to the plaintiff without any inevitable necessity.I am of opinion that Cockburn L.C.J. in the case of Lamb v. Walker 91 , and the Court of Appeal in the case before us, were respectively right in resting on Backhouse v. Bonomi 92 , and deducing from it a principle which governs the question.Backhouse v. Bonomi 93 is not satisfactorily reported. We gather from the report in your Lordships’ House with some difficulty what was actually decided. Mr. Manisty, in his argument in that case at your Lordships’ bar, puts it thus:—“The act done was a perfectly innocent act at the time it was done; the argument on the other side is that it must be treated as having been injurious because it might afterwards become so. If the action had been brought when the act was first done, the answer would have been that the defendant had a right to do the act, and that no damage had been occasioned.” Lord Westbury, says, “I think it is abundantly clear, both on principle and authority, that when the enjoyment of the house is interfered with by the actual occurrence of the mischief, the cause of action then arises, and the action may then be maintained.” And Lord Cranworth, adds:—“It has been supposed that the right of the party whose land is interfered with is a right to what is called the pillars or the support. In truth, his right is to the ordinary enjoyment of his land, and until that ordinary enjoyment is interfered with he has nothing of which to complain. That seems the principle on which the case ought to be disposed of.” It seems to me that Backhouse v. Bonomi 94 did decide that the removal of the subjacent strata was an act (I will not say an innocent act) done in the legitimate exercise of ordinary ownership, which, per se, gave no right of action to the owner of the surface, and that the latter had no right of action until his enjoyment of the surface was actually disturbed. The disturbance then constituted his right of action.There was a complete cause of action in 1868, in respect of which compensation was given, but there was a liability to further disturbance. The defendants permitted the state of things to continue without taking any steps to prevent the occurrence of any future injury. A fresh subsidence took place, causing a new and further disturbance of the plaintiff’s enjoyment, which gave him a new and distinct cause of action.If this view is correct, then it follows that the cause of action now insisted on by the plaintiff is not the same cause of action as that of 1868, but is in point of law, as it is physically, a new and independent cause of action arising in 1882, and to which the defence of the Statute of Limitations is not applicable.The necessary conclusion is that Lamb v. Walker 95 was not correctly decided, and that the able reasoning of Cockburn L.C.J. in that case ought to have prevailed.
Fitzgerald	Bentinck v Fenn	My Lords, concurring as I do in the judgment proposed by the noble and learned Lord upon the woolsack and in the reasons of my noble and learned friend opposite, it will be sufficient for me to say that it appears clearly to me that the appellant here has not a particle of interest in the litigation which he has instituted, and could never possibly derive any benefit from it. That being his position in that respect I entirely concur with my noble and learned friend opposite.The Court of Appeal as well as Pearson J. in the Court below dismissed the claim of the appellant upon the ground that the company had put itself in a position in which this contract could not be rescinded.There is no doubt that Mr. Fenn, who had become a director of the Cape Breton Company, was guilty of a breach of duty if he did not disclose the fact that he himself had a large pecuniary interest in the purchase by the Cape Breton Company, at the stipulated price, of these three coal areas. But I am not by any means satisfied that that serious proposition has been made out. Moreover, there is not to my mind a shred of proof, as to what, at the time when that purchase was made, was the real value of these three coal areas. It is true that they had been purchased some years before at a much less sum; but have we any element of proof before us upon which we can come to the conclusion at the present moment that the true value, if means had been taken to ascertain the true value, of the coal areas was not equal to the price that was then put upon them? There is no such evidence, and the inference is the other way, for you have three independent companies converted into one by the amalgamation and agreeing by the amalgamation agreement to purchase these three coal areas at a sum not exceeding £42,000; and you have that same company afterwards, when formed into a new company, ratifying and adopting that agreement. The inference to my mind would be that the price was not an unreasonable one; but without drawing such an inference it is only necessary to say that we have no proof that the sum stipulated for exceeded a fair and reasonable price for the coal areas at that time.For these reasons I concur in the judgment which has been announced.
Fitzgerald	Stumore Weston And Co v Breen	My Lords, my noble and learned friend, Lord Watson, has so accurately, though concisely, stated the facts of the case in the judgment which he has just delivered, as to relieve us from any necessity for further reference to them. I so entirely concur in the result and in the reasons which my noble friend has expressed, that I would not attempt to add a word were it not that it seems to me that the decision arrived at in the Court below, and the reasons for that decision, carry with them so much danger to the security of shipowners, and have such a tendency to affect the credit of bills of lading, that I do not think it well to let them pass unnoticed.The appellants (the defendants below) in their counter-claim allege that “the negligence and breach of duty of the plaintiff consisted in improperly signing a bill of lading for 1640 chetwerts of maize dated the 12th of September 1883, whereas the said maize was not in fact shipped on board the said vessel at Odessa until the 14th of September 1883, as the plaintiff knew, and a bill of lading for 2190 chetwerts of oats, dated the 14th of September 1883, whereas the said oats were not in fact shipped on board the said vessel until the 16th of September 1883, as the plaintiff knew.”The plaintiff in answer denies both the facts alleged and that he was guilty of any negligence or breach of duty. Every matter of fact stated in the pleading as constituting negligence and as a breach of duty has been established by evidence that is not now and was not at the trial disputed, and yet the plaintiff has had a verdict exonerating him from negligence and breach of duty. Lord Tenterden states in his book in dealing with the duty of the master to his employer that “the great trust reposed in the master by the owners and the great authority which the law has vested in him, require on his part, and for his own sake, no less than for the interest of his employers, the utmost fidelity and attention;” and the learned editor of the 12th edition (Mr. Prentice) adds this (I read it as a matter of advice and not as a statement of law): “The bill of lading is the written acknowledgment of the master that he has received the goods from the shipper to be conveyed on the terms therein expressed. The master should be careful not to sign bills of lading until the goods are actually delivered to him, nor to permit the insertion of statements at variance with the fact, or of a nature to mislead or give rise to misunderstanding. By doing so he may involve his owners in litigation and become responsible to them and to other parties” 1 .The plaintiff Breen in his admission that at the time he signed the bills of lading he was aware that the cargo had not been shipped until after the dates appearing in the bills of lading, qualifies it in the manner stated by my noble and learned friend. I assume that qualification to be true in all its parts, but though it may free the plaintiff Breen from the imputation of a wilful untruth it can afford no justification or excuse for his breach of duty.Field J. in his summing-up most properly observes:“There is no question as to the master’s duty. I should be very sorry to hear the smallest doubt raised in any Court of Justice anywhere, or the suggestion made that it is not the duty of the master to take care that he signs the truth under all circumstances. It is his duty to do it.” And again he adds: “Of course nobody ought ever to sign a lie for anybody; but it was a lie, a plain and palpable lie, and if the master knew it and observed what the date was when he signed it, it was a plain palpable lie to him as well as to everybody else.” And Bowen L.J. in the Court of Appeal says:“Now what is the true matter that we have to determine? It is this; whether the captain of this ship was guilty of any breach of duty towards his owners from which damages accrued to them? What is the duty of the master? It is, first of all, to sign the bill of lading for the cargo received, and to use reasonable care and skill in seeing that the bill of lading is properly drawn up which he does sign.” Now in these observations of Field J. and Bowen L.J. I entirely concur; but it strikes me with some degree of amazement that after these observations the captain who did sign that untrue statement, and in signing it exhibited in my judgment gross want of care, has the verdict on all points. One asks what is the supposed justification or excuse for this palpable and admitted breach of duty? It is that Stumore & Co. had so constituted McNabb & Co. their representatives for all purposes connected with the bills of lading that the acts of McNabb & Co. in filling up these documents with a false date and presenting them to the master for his signature, and procuring his signature, were as much the acts of Stumore & Co. as if they had personally presented the documents to the master and required and obtained his signature. That allegation seems to me entirely to rest on the letter of the 8th of August 1883, which, in my opinion, wholly fails to support it.This question has been so fully, justly, and clearly dealt with by my noble and learned friend that I shall only further say that I entirely agree with him and adopt his reasons.On the second question sent to the jury I also agree with my noble and learned friend and again adopt his reasons; and on both questions it seems to me clear that there was misdirection, and even if there had been evidence proper to be submitted to the jury, yet that the summing-up of the learned judge was open to the criticisms expressed in the judgments of the Divisional Court.I desire to add that even if the case had been submitted to the jury on a summing-up free from objection, yet in my opinion the verdict was against the weight of evidence. I will assume the proper mode of submitting the questions in the cause to the jury to be that laid down by the noble and learned Master of the Rolls. “It seems to me,” says the Master of the Rolls, “the only way, and the proper way, and the clearest way of putting it to a jury is to say, You are now to say whether in your opinion this captain under the circumstances was guilty of negligence in signing those bills of lading without reading them ; and even by way of explaining to the jury what would be the questions for them to consider, to have said that the meaning of that is, You are to ask yourselves whether a captain of reasonable care and skill would, under the circumstances which were before him at the time, have signed the bills of lading without reading them? Whether there would have been any want of reasonable care and skill in a captain of ordinary care and skill in signing the bills of lading under the circumstances without reading them? That seems to me to be the right formula.”I should say without hesitation in answer to these questions that a master of reasonable care and skill would have been guilty of a breach of duty in signing the bills of lading, under the circumstances, without reading and without any examination of them—a breach of duty for which, if loss occurred thereby to the owners, he became responsible to them.I feel called on also to express my opinion on the question as to whether this verdict is upon the whole against the weight of evidence, supposing that the questions were properly submitted to the jury; because it was said in the Court of Appeal that fifty juries one after another would on the same evidence find the same verdict. I will only say, with reference to that observation, that if any number of juries would on the same evidence find the same verdict, I should feel called upon to pronounce their verdicts to be perverse.
Fitzgerald	Baker v Owners of the Theodore H Rand	 My Lords, has it been established on the part of the Theodore H. Rand that it was impossible for the officer of that ship, under the circumstances in which he was placed, and by any amount of care and diligence, to ascertain the true position of the Statesman , and that she was not close-hauled, and was running free?This was the question which was so very much pressed on us on behalf of the Statesman , and it depends on the proper inference to be drawn from the evidence of Knowlton, the chief officer of the Theodore H. Rand .On the most careful examination of his statements, I have not been able to see that he is not entitled to credit, and I have come to the conclusion, though with considerable hesitation, that it was not practicable for him to have ascertained the position of the Statesman . He judged erroneously that she was close-hauled, but the question is, are the owners of the Theodore H. Rand responsible for this error?Upon this point of the case, it seems to me to be desirable that your Lordships’ reasons should be so expressed as to leave no opening for the supposition that the ship may not be liable for an error in judgment of the officer in charge, even where that officer acted bon? fide according to the best of his judgment and under circumstances of difficulty. The Statesman not being to blame, the onus was then cast on the owners of the Theodore to shew that she was not to blame.Baggallay L.J. rather reverses the position, when he says: “I have come to the conclusion that there is not sufficient evidence in this case to shew that, by the exercise of any reasonable care or diligence on the part of those on board the Theodore H. Rand, the actual course which the Statesman was pursuing could have been ascertained.” The learned Lord Justice places the onus of proof on the Statesman , and in using the flexible term “reasonable” leaves an opening for misconception.Lindley L.J. deals with this part of the case somewhat more fully, and is reported to have said:“The conclusion was wrong, and therefore what the Theodore H. Rand did was wrong, and that raises the real difficulty, or what I have felt all throughout to be the real difficulty in the case. But the exigency of the statute is very strict, and we must have regard to the statutory enactment, which is the 17th section of the 36 & 37 Vict. c. 85 , and although the language of it is very wide, I cannot construe that section as applying to a case where a man acts perfectly bon? fide, and makes a mistake for which he is not in any way morally to blame. The position of affairs was this—I am stating the conclusion at which I have arrived from the evidence—that the persons on board the Theodore H. Rand could not by any amount of reasonable diligence have ascertained what the course of the other ship was, whether she was free, or whether she was, as they supposed, close-hauled on the starboard tack. It seems plain, when one comes to investigate these rules, that such a state of things might arise. Then if a man is not in a position to find out what the other ship is doing, if he cannot with reasonable diligence find it out, and happens to make a mistake, is he to be made liable under the terms of the 17th section? I think so to construe the 17th section would be erroneous.” The language imputed to the Lord Justice is too wide, and seems to be capable of misinterpretation, especially in the passage where he says that the statute does not apply “where a man acts perfectly bon? fide, and makes a mistake for which he is not morally to blame.” If the application of the statute was to be excluded in such a case, its wholesome operation and effect would be seriously limited.I can well conceive many instances in which the master of the ship, acting bon? fide and according to the best of his skill and judgment, commits an error for which he may not be morally responsible, and yet the owners of his ship would be answerable for the consequences.It seems to me that the statute intended to exclude considerations of mere mistake, error of judgment, and the like, and to lay down a very rigid, though not inflexible, rule.The language of the 17th section of the statute is:“If, in any case of collision, it is proved to the Court before which the case is tried that any of the regulations for preventing collision contained in or made under the Merchant Shipping Acts 1854 to 1873, has been infringed, the ship by which such regulation has been infringed shall be deemed to be in fault, unless it is shewn to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary .” There were no circumstances shewn to make a departure from the regulation necessary. The Statesman obeyed rule 14 by taking the proper manoeuvre to keep out of the way of the close-hauled ship the Theodore H. Rand , and the question seems rather to be on the construction of art. 22 whether the Theodore H. Rand violated or broke that rule.The 22nd article is, “Where by the above rules one of two ships is to keep out of the way, the other shall keep her course.”The Theodore H. Rand did not keep her course. It seems, however, hard and unreasonable to affirm that the 22nd article was violated by the master of the Theodore H. Rand if it was impossible for him to ascertain that the 14th article was applicable, and if in the critical emergency which was thus forced on him he took the step which the crisis seemed, in his judgment, imperatively to demand.Butt J. puts the matter thus, and I think with accuracy:“The mistake on the part of the port-tacked ship brought about the collision because the other was acting rightly.” “I have to apply this statutory rule. I would not apply it against a port-tacked ship if I thought it were impossible “—your Lordships will observe that he uses the word impossible—“for her officer to tell what he had to deal with.” The Statesman was not to blame. The Theodore H. Rand caused the calamity. It lay on her owners to establish that she was not to blame, by clear and satisfactory proof that it was impracticable for the officer in charge, using his utmost care and diligence, to make out the situation he had to deal with in relation to the Statesman , and that, being placed in circumstances of great difficulty, he had acted to the best of his skill and judgment.After much hesitation I have come to the conclusion that the owners of the Theodore H. Rand have established that position in evidence, and that their ship consequently was not to blame.
Fitzgerald	Bradford Banking Co Ltd v Henry Briggs Son And Co Ltd	My Lords, I concur in the result at which my noble and learned friend has arrived. He has stated the facts so fully that it is unnecessary to recapitulate them. I may however observe in reference to the certificates of the shares which Lord Selborne in Société Générale v. Walker 26 states to be “the proper (and indeed the only) documentary evidences of title in the possession of a shareholder,” that though in the present instance they are expressed to be “subject to the articles of association,” yet they do not contain any intimation that the holder is not at liberty to pledge, or mortgage, or otherwise to raise money or obtain credit on the deposit of the certificates, and seem to have been issued in this, as in other like cases, to the shareholder “as evidence of his title “to enable him to deal with them as he would with other property, but subject to the articles of association. The House lately gave large effect to the possession of the certificates of shares in the Colonial Bank v. Whinney 27 in holding that where the shareholder pledged the certificates of his shares to the bank as a security for advances, though no notice of the pledge had been given to the company, yet that by the pledge of the certificates the shares ceased to be in his order and disposition and did not pass to his assignees in bankruptcy, although his name remained on the register as the registered shareholder.I concur in opinion with my noble and learned friend that the principle of Hopkinson v. Rolt 28 governs the present case unless there is something in art. 103 which prevents its application. The articles of association provide for the transfer of shares and the registration of the instrument of transfer, and confer on the directors authority to disapprove of the transferee, but there is no limit to the right of the shareholder to pledge or raise money on his shares, unless it is to be found in art. 103. I concur in the interpretation put on that article by Field J. and by my noble and learned friend. Full effect may be given to its terms, and yet the lien conferred by it be limited to liabilities of the shareholder contracted up to the time at which the company shall have had notice that he has ceased to be the beneficial holder of the share. The view taken by the majority of the Court of Appeal would necessarily render such shares practically unavailable as a security for advances other than those made by the company.The judgment of Fry L.J. rests on the point arising on the 30th section of the companies Act, in reference to which he seems to be of opinion that notice of the pledge to the company should not be deemed effectual for any purpose, and that the effect of the section is to exclude the application of Hopkinson v. Rolt 29 . I cannot agree that the notice had no operation. It may not have affected the company with any trust in favour of the pledgees, but it was a valid and operative intimation to the company that the whole beneficial interest of the shareholder had been pledged to the bank.Although my noble and learned friend has correctly quoted the opinion of Lord Selborne on the effect of sect. 30, yet it is observable that the other noble Lords who took part in the decision of the Société Générale v. Walker 30 expressly refrain from deciding the case on that ground, and I do not find that Lord Selborne expressed any opinion that the notice may not have been operative for other purposes.
Fitzgerald	Russell v Watts	My Lords, it is my good fortune that in this case the facts, which are rather complicated, have been so fully and so clearly brought out in the judgments of the noble and learned Lords who have preceded me that I need not refer to them. The difficulty which I have felt from the beginning was not as to the proper decision to be ultimately reached, but as to the precise ground on which that decision ought to rest.The question is, as put by Cotton L.J., has the plaintiff any and what right to say that his lights, though not ancient, are entitled to protection? And the fair way to consider that question is as if it arose between Jeffery, the original lessee of the corporation, and his mortgagees. He could not by any subsequent act or dealing of his derogate from the rights which he had conferred on the mortgagees.The terms of the leases from the corporation and the particulars of the plans and specifications, accepted, agreed to, and acted on, have been so fully and accurately stated that I need not refer to them, but proceed at once to the mortgage of the 30th of June 1866 on the construction of which this case ought to be determined. Fry L.J. says: “Now it appears to me to be clear that the rights of the defendants must be determined by reference to the legal effect of the mortgage of the 30th of June 1866 construed by the light of the surrounding circumstances.” I agree that our decision ought to rest on the fair interpretation of the leases and mortgage, guided by the light of the surrounding circumstances.The mortgage contains, inter alia, the following recitals and provisions: “And whereas it is the intention of the said James Reddecliffe Jeffery to erect upon the piece of land hereby demised, and upon the said piece of land in the plans drawn in the margin of the hereinbefore-recited indentures marked A, B, D, and E, one continuous building or shop, but in such a manner as that if and when occasion shall require the same shall be capable of subdivision into separate buildings. And whereas the plans, elevations, sections, and specifications for the said shop” (that is the continuous building) “having been previously approved of by the council of the borough of Liverpool have been submitted to Mr. John Stewart, the surveyor of the said Edward Moon and Richard Moon, and the same, so far as they relate to the buildings to be erected on the pieces of land hereby demised have been approved by such surveyor, and have been authenticated by his signature. Now, therefore, it is hereby agreed and declared between and by the parties to these presents that, subject and without prejudice to the covenants and conditions contained in the said several indentures of lease, the said James Reddecliffe Jeffery, his executors, administrators, or assigns, shall at his or their own expense build and finish on the pieces of land hereby demised such erections, buildings, and conveniences as shall in all respects correspond to and be in accordance with the plans, elevations, sections, and specifications approved of by the said surveyor as aforesaid, and in particular so as that the buildings to be erected on the pieces of land hereby demised shall be separated from the other portions of the said intended shop and also from each other by such party walls, and that they shall communicate with the other parts of the said shop by such doorways and passages, and that such doorways and passages shall be capable of being closed with such fireproof or other doors as in the documents last aforesaid, or some of them, are in that behalf respectively set forth and provided.”The language used in the mortgage is clear and specific, and if any doubt can arise on its construction it seems to me to be only that which must necessarily be created by the opinions of the majority of the Court of Appeal and of my noble and learned friend (Lord Blackburn). This mortgage deed expressly contemplates and declares that one whole continuous building shall be erected according to the plans approved of by the corporation and submitted to the surveyor of the mortgagees, in all respects to correspond to and be in accordance with such plans.In determining what restrictions, if any, are to be implied on what otherwise might have been the strict legal rights of the mortgagees, it is essential to pay critical attention to what was the common interdependent design to be gathered from those plans and which both parties agreed should be carried into effect. The noble and learned Earl has called our attention so fully and so accurately to this portion of the case as to leave no opening to add to it; and it seems to me that there are restrictions to be fairly implied as assented to by both parties, and, inter alia, on the part of the mortgagees, not to interfere with the windows in question as shewn on the common plan, so as to intercept the light which was intended to be admitted to the plaintiff’s premises through the windows which the defendants now seek to close up.  In the view which I have taken of this case, following the noble and learned Earl, it is not necessary for me, if I were disposed to do so, to criticise the very able and learned and careful judgment in Wheeldon v. Burrows 57 . I agree with Lindley L.J. that “this case does not fall within it. This is not the case of a vendor of a piece of land attempting to derogate from his own grant. It is more like the case of several persons interested in several pieces of land all agreeing to build upon them in a particular way so as to accommodate one another, and of one of them afterwards, when the buildings are up, insisting on rights which are quite inconsistent with the enjoyment of the buildings as erected. There is no authority to shew that in such a case any one of such persons could afterwards build on his own land so as to obstruct his neighbour’s lights.”The decision of this case, standing on its own special circumstances, does not trench on Wheeldon v. Burrows 58 ; and on the whole I am entirely satisfied with the reasons of the noble and learned Earl, and am of opinion with him that the decision of the Vice-Chancellor was consistent with the law of England and in accordance with right and justice.As to the point raised and discussed towards the close of the argument of the respondents, counsel, which related to the effect of the surrender, I entirely agree with my noble and learned friends, and have nothing to add.
Fitzgerald	Glasgow And South Western Railway Co v Mackinnon	I entirely concur. I only desire to say, as to art. 11, that I have found great difficulty in understanding the argument as to its effect and operation, and I am not at all sure that I have a very clear conception of it at present; but I certainly do decline to offer an opinion upon an agreement which is not before us, and which if it was to be relied upon in the manner in which it has been relied upon to-day by the Lord Advocate, ought to have been put forward prominently by the defenders and ought to have been before your Lordships now.There is one point I may advert to. As I understand the case as it stands it is this. The condition of things at the time this agreement of 1875 was entered into was that the coalmasters were then paying rates under the agreement of 1874. The Eglinton Company were then paying rates in a lesser degree under their own special agreement, which is not before us. The object and intention of the parties seem to have been to equalize these two things. The result was, as I understand by the answer to an inquiry which I made in the course of the argument, that the schedule of rates under this agreement of 1875, and the rates payable by the Eglinton Company represented the same thing—they were equal in degree, and there has been no change of circumstances since. The Eglinton rates have not been altered. There is indeed a statement that they had been diminished in reference to one particular colliery, but that being objected to they were immediately increased again, and potentially the state of facts is the same now as it was when this agreement was entered into in 1875. Every agreement is construed, not according to circumstances which may arise but, according to the circumstances existing at the time the agreement was entered into. We have not the Eglinton agreement before us, and I am at a loss to see what effect it can have upon art. 9 of this agreement. Article 9 speaks of the “rates stipulated in this agreement”—these are the rates, and if there had been any change of rates under article 11 that change of rates would still represent rates stipulated for in this agreement, and would leave, as to these rates, article 9 in full force. The truth is that there has been no change. I do not know that the case comes before us in the light in which we ought to express any opinion upon it so far as regards the Eglinton agreement. Upon the statement which is before us therefore I quite agree with my noble and learned friend that as to this art. 11 the less we say the better; but I cannot refrain from making this observation, that the whole language of art. 11 points to an increase of rates and not to a diminution; it points to an authority to charge on the one side and a liability to pay on the other. You will find that the only additional stipulation is that in the event of the railway company having bribed the Eglinton company to submit to an increase of rates, it shall give exactly the same bribe to the coalmasters as it has given to the Eglinton company.
Fitzgerald	Lord Dynevor v Tennant	My Lords, upon the question of the proper construction of this lease, or rather of the provision in this lease which is under consideration, I concur with my noble and learned friend on the woolsack, and with the noble and learned Earl who has preceded me. I am clearly of opinion that in the construction of that provision it is to be read as a reservation in favour of the lessors in respect of their reversion and the assignment of their reversion. Accordingly it follows that the decision of the Court of Appeal ought to be affirmed. I will only add that if we adopted the construction put upon this provision by the appellant the rights in regard to this canal would become complicated and extremely confusing.
Fitzgerald	Colonial Bank v Whinney	My Lords, the two questions necessarily involved in this appeal are so important commercially and in relation to advances of money on the security of shares in public companies, that I feel called on to express my reasons for concurring in opinion with my noble and learned friends.These questions arise on the concluding sub-section of the 44th section of the Act of 1883, which now represents the order and disposition clause in bankruptcy, and it may be expedient to glance for a moment at the early history of the provision in the bankrupt law in this respect.A somewhat ancient writer tells us that “although originally merchants were much favoured in our law, yet soon their number and cunning and their crafty dealings had so much increased that it fell out we had more need to make laws against them.” Whether this is accurate or not in the present day, I do not know. We find in the earlier statutes bankrupt traders are dealt with very much as if criminals. The 34 & 35 Henry 8 c. 4 was enacted “ against ” such persons “ as do make bankrupts .” The 13 Eliz. c. 7 , in dealing with who is a bankrupt, and how and by whom his body , lands and goods shall be ordered for payment of the creditors, recites that “Those kind of persons do still increase and are like more to do if some better provision be not made for their repression.” We find in the preamble of 1 James 1 c. 15: “For that frauds daily increase amongst such as live by buying and selling, by such as wickedly and wilfully become bankrupts.” We next come to the 21 James 1 c. 19 which is, inter alia, “for inflicting corporal punishment on bankrupts” in some defined cases. That statute contained, in its 11th section, the first enactment on the subject of reputed ownership and extended to goods left in the possession, order and disposition of the bankrupt with the consent of the true owner. It seems to have been intended by this section to repress dealings of third parties with traders which were in their nature fraudulent, or were at least calculated to defraud creditors by obtaining for the trader credit on false and delusive appearances. The 11th section does not appear to have been put into actual operation for a long period after its enactment. It had almost become obsolete, and was first really expounded by Lord Hardwicke more than a century afterwards. It was on the 11th section of that statute that he decided Ryall v. Rolle 57 , and the case of Joy v. Campbell 58 arose before Lord Redesdale in 1804 on similar words in the Irish Bankrupt Act , the 11 & 12 Geo. 3 c. 8 s. 9 .In the latter case Lord Redesdale observed: “Now that clause refers to chattels in possession of the bankrupt”—in his order and disposition with consent of the true owner—“that means where the possession, order, and disposition is in a person who is not the owner, to whom they do not properly belong, and who ought not to have them, but whom the owner permits, unconscientiously as the Act supposes, to have such order and disposition. The objeet was to prevent deceit by a trader from the visible possession of a property to which he was not entitled; but in the construction of the Act, the nature of the possession has always been considered, and the words have been construed to mean, possession of the goods of another with the consent of the true owner.” He adds subsequently, “In all those cases in which that clause in the Act has been permitted to have the effect of devesting the right of the person who had a right to the property, the nature of the possession has always been considered and whether it was according to right.” And again he adds:“It has been confined to those cases where the sole and absolute owner of the property has permitted it to remain in possession of the trader in whose possession it ought not to be.” It was of Joy v. Campbell 59 that Baron Parke more than once observed that it contained “the best exposition of the law” (see 16 Meeson & Welsby, 286).The order and disposition section of the statute of James I. remained in substance unaltered down to 1869. In 1861 an Act passed which for the first time applied to non-traders the provisions of the bankruptcy statutes, but it made no alteration in the law as to the doctrine of reputed ownership, which in consequence became applicable to goods in the order and disposition of non-traders. Whether this was designed or whether it arose from oversight in not appreciating its full effect, I do not know. My impression is that there was no provision in any of the prior Insolvent Debtors Acts similar to the order and disposition clause. The decisions on reputed ownership had not been uniform, and some of them worked great injustice.  A very distinguished Irish judge (Christian L.J.), of whom I may also say that he was a master both in Law and in Equity, In re Hickey 60 , dealing with a case arising under the order and disposition clause, thus very vigorously expresses himself:“No interest whatever in the policy passed to the assignees by the vesting operation of the Bankruptcy Act. Assignees step into the shoes of the bankrupt. Nothing passes to them but what was beneficially the bankrupt’s own at the time of the bankruptcy. Nevertheless the assignees assert that the order and disposition clause (sect. 313 of the Act of 1857) enables the Court of Bankruptcy to confiscate by a special order this, the admitted property of those two men, for payment of the debt of their assignor. Without going all the way with counsel for the appellant in calling that clause a penal one, we may admit that it is an exceedingly harsh if not an unscrupulous one. It is probably the only instance in our law in which, not only purposely, but avowedly, the property of one man is laid hold of to answer the debts of another. It dates back to the time of James I., if not earlier, and is an example of what most of us have occasion to note, that both the Parliaments and the judges of those older times were bolder in initiative than their modern successors. Surveying the conditions with which the exercise of this exceptional and questionable power has been hedged round by this statute, it is impossible to avoid seeing that of all its requirements the most distinctive and central is ‘the consent and permission of the true owner.’ All the others may combine. The goods may be in the possession of the bankrupt, they may be in his order and disposition, he may be the reputed owner of them; but unless all this has been sanctioned by the consent and permission of the true owner, the clause rests as a dead letter. And it is this alone which redeems this law from the charge of naked confiscation. As the mens rea is essential for incurring the punishment of guilt, so the mens volens is essential for incurring the forfeiture imposed by this order and disposition clause.” The alterations in relation to “order and disposition” in the Act of 1869, s. 15, sub-sect. 5, and carried further by the 44th section of the Act of 1883, sub-sect. iii., were probably for the purpose of excluding its operation altogether in the case of non-traders and of narrowing its effect as to traders. Thus by the Act of 1869 it is limited to cases of a bankrupt “being a trader,” and in the Act of 1883 its operation is further confined to goods in the “possession, order, or disposition of the bankrupt in his trade or business.” These expressions are capable of a different meaning and are by no means identical. Their construction has yet to be determined (see In re Jenkinson 61 ).Now, as to the first question of fact which it is necessary to decide on this appeal, viz., Were the shares in question “in the possession, order, or disposition” of the bankrupts, or of either of them, at the commencement of the bankruptcy, we have to consider the position of the parties.The shares were registered in Blakeway’s name, and in that respect he was the sole legal owner, but as such he was a trustee for his firm. Acting on behalf of the firm he pledged the whole beneficial interest to the Colonial Bank, and he delivered to the bank the several certificates of the shares to be retained by them as pledgees. His name continued on the register as registered owner, but as such he was but a trustee—a trustee for the equitable pledgees—and if there was a surplus, as to that surplus for the firm. The firm had not “the reputed ownership,” and in the view that your Lordships have expressed it will not be necessary to consider whether Blakeway’s name being on the register placed him in “such circumstances as that he was the reputed owner.” The shares were not in the order or disposition of the firm. Were they “in the possession, order, or disposition” of Blakeway? The contention that they were rests entirely on his name being still on the register, but something more is requisite. He should also have had the power of disposal. I adhere to what I said in Soci?t? G?n?rale v. Walker 62 as to the nature of these certificates and the effect of parting with them, and am of opinion that, having pledged the shares to the Colonial Bank for value, and delivered to them the certificates to be held by them as their security, he ceased, under the circumstances, to have the power of disposal over the shares, unless possibly by the commission of not only a fraud but a crime. I am of opinion that at the commencement of the bankruptcy these securities were not in the possession, order, or disposition of the bankrupt Blakeway within the meaning of the statute. There remains the second question: Are shares of the character in question “things in action” within the meaning of the proviso which concludes sect. 44 of the Act of 1883? On this question I concur in opinion with my noble and learned friends, and adopt the reasoning of Fry L.J. It seems to me, on a careful examination of the section and proviso, that the intention of the legislature was to narrow very much the operation of the “order and disposition” clause so as to confine it to such goods as might be in the order and disposition of the bankrupt “in his trade or business,” and, save in the case of “debts due to the bankrupt in the course of his trade or business,” to exclude all those incorporeal rights which are not visible or tangible or capable of manual delivery or of actual enjoyment in possession in its ordinary sense, and which, if denied, can be enforced only by action or suit. It is unnecessary for me to express any opinion on another question which was most strenuously pressed in argument by the appellant’s counsel.
Fitzgerald	Tosh v North British Building Society	I concur in the reasoning of the Lord Chancellor and in the amendments of the interlocutor which he proposes. I am the only member of the House now present who took part in the decision of Brownlie’s Case 33 . That case was not disposed of immediately after the hearing of the argument, there was some novelty in it, and time was taken for consideration, and even more than ordinary care was applied to it. From the beginning of the argument in the present appeal I have thought that it was governed in every part by the decision of your Lordships’ House in Browlie v. Russell 34 .
Fitzgerald	Isaac Cooke And Sons v Eshelby	My Lords, the supposed importance of this case in its bearings upon the operations of the Liverpool Cotton Market appears to render it rather a duty that each of us should deliver his own judgment. But when we reach a correct appreciation of the facts of this case it seems to me that all difficulty disappears as to the application of the principle on which it ought to be decided. Although my noble and learned friends have concisely and accurately stated their views of the facts, I ask your Lordships’ permission to advert to some parts of the evidence somewhat more in detail.The third paragraph of the defence alleges that “the defendants believed that Livesey & Co. made the contracts as principals,” which must be interpreted to mean that they so believed at the time the contracts in question were entered into. This essential averment has not been proved, and has been disproved. My noble and learned friend (Lord Watson) has already called attention to an answer given by the appellants which seems to become more pointed when we refer to the actual interrogatories in reply to which that answer was given. The fourth interrogatory was:“Is it not the fact that in the transactions mentioned in the statement of claim the defendants believed that Livesey & Co. were acting as brokers on behalf of principals?” The fifth interrogatory was: “Did the defendants believe that in such transactions Livesey & Co. were speculating and dealing on their own account as the principals?” To which the defendants answered: “To the fourth and fifth interrogatories, that we had no belief on the subject. We dealt with Livesey & Co. as principals, not knowing whether they were acting as brokers on behalf of principals, or on their own account as the principals;” and it appears on the notes of the learned judge at the trial, that to some similar question Mr. Cooke, on his viv? voce examination, answered:“I had no belief in the matter.” It is quite true that Messrs. Cooke had not at the time of the contract any actual knowledge that Livesey had a principal, but it is equally clear that they purposely abstained from obtaining information from Livesey on the subject. Messrs. Cooke relied on a custom in the Liverpool market that where the principal was undisclosed at the time of the contract he could only intervene and claim on the contract provided his doing so “was not to the detriment of the broker of the other contracting party;” or, to put it in the exact words of a question and answer at the trial: “(Mr. Carver): Then, my Lord, I will put this question: In the arrival market where one of the parties on the face of the contract fails, is there any custom which governs the right of undisclosed principals to claim upon the contracts made in the name of the party who has failed? (A.) He can only claim subject to the rights of the other party to the contract to take into account whatever differences there may be on other outstanding contracts.” The special custom alleged to prevail in the Liverpool arrival market was not established in proof.The disclosure at the time of the contract that there was an undisclosed principal would not alone have been very undesirable information to Cooke & Co., but would have prevented the contract being entered into, for in case of the failure of Livesey & Co. Messrs. Cooke could not (I am giving the language used in the course of the evidence) have “squared their books,” that is, have applied the money due on the contracts to Maximos to discharge the liability of Livesey & Co. Mr.Tobin, one of the principal witnesses for the appellants (defendants), explains the objects to be achieved very clearly: “(A.) If I have a number of transactions with a broker I treat that broker as the dealer. He is called ‘broker’ technically, but practically he is the dealer or the contracting party with me. I know nobody else in the transaction . I have bought from him certain cotton, and I have sold to him certain cotton. I know how my account stands. If an undisclosed principal can come forward and claim on a certain portion of the contracts, those that are in his favour, and saddle me with the rest, my position is entirely altered.” Mr. Tobin also says that unless there was such a rule as he had stated in a previous answer it would be impossible to carry on business in the Liverpool Cotton Arrival Market. He means of course that there would be difficulties in the way of carrying on such business in the manner in which it is carried on in that market. Whether that may or may not be so I do not know, nor shall I ventrue to speculate whether such a result would prove to be a mercantile calamity. We must not alter the law to suit the views or the convenience of the Liverpool Cotton Market.The case at one time seemed to present a novel aspect which it might have been difficult for the plaintiff to encounter. It was alleged that Maximos authorized Livesey & Co. to contract in their own names, and also prohibited them from disclosing his name as principal, and this seemed to be close on the confines of an express authority to contract in their own names as principals and as if owners of the cotton. I put the case to Mr. Kennedy during the argument, but he did not seem to attribute any weight to it, and properly so, for on examining the evidence carefully it falls short of the allegation, and does not appear to have been relied on in the Court of Appeal or in the Court below. The evidence in this particular rests on two answers given by Mr. Tobin. In the one on direct examination he spoke as to a conversation with Maximos ten days before the trial and said:“Mr. Maximos told me that he had instructed Messrs. Livesey not to give his, Mr. Maximos’, name, in the arrival market, but to give his own, Livesey’s, name.” But on cross-examination he corrected that statement from a memorandum made at the time “as it was known that Livesey did business for him, but as other brokers came to him for business he authorized Livesey not to give his name, that is the reason he gave you for saying what you have said he said? (A.) Yes.” This seems to me to fall short of authorizing Livesey & Co. to contract in their own names as principals. If Messrs. Cooke had asked Livesey, “Have you a principal in these contracts?” we may assume their answer would have been in the affirmative; and if further asked to name that principal they would have replied, “He does not wish us to do so.” The ascertained facts appear to stand thus: Livesey & Co. were extensive cotton brokers on the Liverpool Cotton Arrival Market. They also dealt in cotton arrivals on their own account as principals. Their position was well-known to Cooke & Co. Maximos employed Livesey & Co. as brokers to sell for him the particular lots of cotton, and they did so, the contracts which they entered into, though in their own names, being in law contracts for and on behalf of Maximos. He also “ authorized them not to give his name,” which may be read as meaning not to give his name either in the contract notes or in answer to inquiries, his special object seeming to be to avoid the jealousies or solicitations of other brokers. He did not prohibit them from giving his name, nor did he give them any right to sell in their own names as principals, or as if they were the owners of the goods, and he did not arm them with the indicia of property if any such existed. Cooke and Sons having at their hand the fullest means of information abstained from making any inquiry as to whether Livesey & Co. were acting as brokers for a principal or on their own account as principals and owners, and they say “they had no belief on the subject.”Such being the facts I do not propose to criticise the numerous cases which George v. Clagett 33 gave rise to, or to enter on the consideration whether the head-note to that case is misleading. The head-note frequently is misleading if you read it alone and do not take the trouble to read the case. It seems to me that the judgment of the Master of the Rolls in the Court of Appeal is quite correct and supported by a number of authorities, including Fish v. Kempton 34 ; Borries v. Imperial Ottoman Bank 35 , and the lucid passage from the judgment of Willes J. in Semenza v. Brinsley 36 .I concur with my noble and learned friend in adopting at once the decision and the reasons of the Court of Appeal. I have, however, some hesitation in accepting the view that the decisions rest on the doctrine of estoppel. Estoppel in pais involves considerations not necessarily applicable to the case before us. There is some danger in professing to state the principle on which a line of decisions rests, and it seems to me to be sufficient to say in the present case that Maximos did not in any way wilfully or otherwise mislead the defendants (Cooke & Sons) or induce them to believe that Livesey & Co. were the owners of the goods or authorized to sell them as their own, or practice any imposition on them. The defendants were not in any way misled.
Fitzgerald	Lord Elphinstone v Monkland Iron And Coal Co Ltd	I take leave to express my complete concurrence.I desire, however, to observe, on the proposition of Lord Young, that “the agreement contained in the 12th article of the agreement of 1877 to pay £100 per acre for ground unrestored at a particular date is clearly a penalty under which no more than the actual damage can be recovered,” and I am induced to do so as the law of Scotland, which we are now administering, seems in this respect to agree in principle with the law of the rest of the United Kingdom; or it would be more correct to say that the law of Scotland in this respect existed in full force and equitable effect whilst we were struggling against the hard and technical rules of our common law. I am not aware that there is any enactment in force in Scotland corresponding to our statute of 8 & 9 Wm. 3, c. 11, s. 8 ; nor does the Scotch law seem to have required such aid. We may take it, then, that by the law of Scotland the parties to any contract may fix the damages to result from a breach at a sum estimated as liquidated damages, or they may enforce the performance of the stipulations of the agreement by a penalty.In the first instance the pursuer is, in case of a breach, entitled to recover the estimated sum as pactional damages irrespective of the actual loss sustained. In the other, the penalty is to cover all the damages actually sustained, but it does not estimate them, and the amount of loss (not, however, exceeding the penalty) is to be ascertained in the ordinary way. In determining the character of these stipulations we endeavour to ascertain what the parties must reasonably be presumed to have intended, having regard to the subject-matter, and certain rules have been laid down as judicial aids. Thus, in Astley v. Weldon 6 , Mr. Justice Heath said: “Where articles of agreement contain covenants for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty. But where it is agreed that if a party do” or (I may add) omit to do a particular thing, “such a sum shall be paid by him, there the sum stated may be treated as liquidated damages.” Lord Eldon took part in the judgment in Astley v. Weldon 7 , which has always been considered, so far, to state the rule correctly.There is an Irish case particularly applicable to the case before us: Huband v. Grattan 8 . In that case there was a covenant by the grantee with his grantor (who was also the owner of adjoining lands) that he would prostrate and remove a lime-kiln before a certain day, and if not prostrated and removed before that day then the grantee should pay to the plaintiff the sum of £100 for each year during which the lime-kiln should remain, or a rateable sum for a shorter period . The action was for a breach in not removing the lime-kiln. Held to be liquidated and ascertained damages, and not a penalty.In Rolfe v. Peterson (1772) 9 no reasons are given, but there Lord Camden’s decision was reversed. It was a covenant by a lessee not to plough up ancient pasture, and if he does to pay an additional yearly rent of £5 an acre. Breach, ploughing up ten acres. Held , that it was not to be considered as a penalty, but as liquidated satisfaction fixed and agreed upon by the parties, notwithstanding that it was alleged “that the penalty of £5 per acre reserved during the remainder of the term for once ploughing amounted to more than thirty times the value of the inheritance of the ten acres before they were put into a state of cultivation by the respondents”; and although the parties use the words “liquidated damages” or “penalty,” though such words are not to be disregarded they are by no means conclusive. Thus, in Betts v. Burch 10 , Bramwell, B., correctly lays it down, “For if the whole agreement is such that the Court can see the sum is a penal sum, it must be so treated; on the other hand, if it is not  a penal sum, it would be incorrect to treat it as a penalty merely because the parties have so called it in the agreement.” And so in Kemble v. Farren 11 , where the sum of £1000, the subject of the action, was declared by the agreement to be liquidated damages, and not a penalty or in the nature thereof, it was held to be a penalty; but Tindal, C.J., in the course of his judgment, observes:“We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum they may agree.” There would be some difficulty in criticising some of the English decisions, and it would not be very profitable. Bramwell, L.J., in Newman’s Case 12 says: “It seems to me, as I said in Betts v. Burch 13 , that by some good fortune the Courts have, in the majority of cases, gone right without knowing why they did so.” There could be no more competent judge. I leave it in his hands.I am clearly of opinion with my noble and learned friend that the sum of £100 per imperial acre for all ground not restored, though described in one part of the 12th article as “the penalty therein stipulated,” is not a penalty, and represents stipulated or estimated damages. It is satisfactory also to be able to make out from the uncontroverted evidence that the sum is not exorbitant or unreasonable.
Fitzgerald	Russell v Town And County Bank Ltd	My Lords, I entirely concur with what has fallen from my noble and learned friend, and I think that the judgment should be affirmed. There is always considerable difficulty in putting a clear construction on the provisions either of the Act of 1842 or of the Act of 1853—the schedules to which Acts must be looked to. But I think we have a clear state of facts here (save in one particular to which I shall advert presently) which enables us to come to a just conclusion.We find that a certain portion of the bank premises is “occupied as a dwelling-house by the manager or resident agent of the bank, as the case may be. The said manager and agent receive said accommodation as part of their emolument in the service of the bank, but the annual value of this accommodation is not assessed to income tax otherwise than under Schedule A.” Then it is stated “that these dwelling-houses form the official residences of the agents, and are necessary for the proper carrying on of the business of the bank; that owing to the nature of the bank’s business it is essential that a responsible official should reside on the bank premises, and that thus the whole premises belonging to and occupied by the bank or its officials or agents are used for the purposes of the bank’s business. There is no necessity and no possibility for the bank, as such, having a dwelling-house merely for occupation. The whole premises are, for the purposes of the bank, business premises.”Now although that is only a contention put forward, yet it is a contention put forward without any controversy as to the facts, but I venture to say that I am not satisfied as to one of the propositions. All through the statement these are called “dwelling-houses.” They are in fact a portion of the bank premises occupied, for the purposes of the bank’s business, by a bank manager or a bank clerk. With all respect I should say that it does not follow that they are dwelling-houses at all, or that the occupation of certain rooms in the bank by the bank manager for bank purposes, which occupation is necessary for the protection of the institution and the carrying on of its business, converts that part of the bank premises into a dwelling-house, though it may make them for certain purposes the dwelling of the manager or clerk.However, passing from that, the first thing which we have to ascertain under this schedule is to estimate the balance of the profits. Now what is the balance of the profits? “Profits” I read on authority to be the whole of the incomings of a concern after deducting the whole of the expenses of earning them—that is, what is gained by the trade. The whole expenses of earning them must mean, according to the schedule, the whole expenses incurred for the purposes of the business and nothing else. But I come, upon the statement of facts, to the conclusion that if these premises were either actually used as the counting-house, as other parts of the bank were used, or if the residence of the bank manager or clerk upon the premises was necessary for protection purposes and for the purposes of carrying on the business of the bank, the whole premises were used for the purposes of the business of the bank and the annual value of them forms a proper deduction in estimating the balance of profits, which is the first thing to be done. That balance of profits is to be ascertained after deducting the whole of the necessary expenses save those which by negative provisions are excepted in the statute.My Lords, without going further, it appears to me to be perfectly immaterial whether this accommodation is to be regarded as a part of the emolument of the manager of the bank for the performance of the duties imposed upon him or as a part of the premises used solely and wholly for bank purposes. Upon the ground which I have stated it seems to me clear that this deduction is a deduction which the bank are entitled to make, and that, therefore, they have already paid the whole amount of income tax for which they are liable.
Fitzgerald	Seaton v Seaton	My Lords, this appeal presents two important questions of construction arising on the 1st section of the Infants’ Settlement Act .The first question is whether the decision in In re Sampson and Wall 26 on the 1st section is correct? It is not necessary for the House to express any opinion on that case so far as relates to that part of the decision which is represented by the judgment of Lord Selborne. It may be a useful decision, and certainly puts a very wide and benevolent construction on the statute; but we leave that case as we find it.The second question is whether the 1st section went further than to release the infant wife from the disability of infancy? This question was so fully treated in the judgment of the Court of Appeal, and now by my noble and learned friend on the woolsack, that I do not find it necessary to say more than that I adopt the judgment of the Court of Appeal, which has been now accepted and approved of by my noble and learned friend. But that leaves untouched the disability arising from the coverture of Louisa Seaton, which could only be removed, as to the property in question, by a deed executed and acknowledged under the provisions of the Act known as Malins’ Act, if that Act applied to the case.Then comes the question which Lord Cairns thus states in Codrington v. Codrington 27 . That, it is true, was a case of election, but he puts it thus: “It is quite true as far as the interest of the appellant” (that is the wife) “was concerned, the settlement was ineffective.” I may observe that it was a settlement of two funds, one of which was her reversionary estate—Rs.80,000—and she had to elect. He says: “She had it in her power when discoverte to repudiate” it (the settlement), “and to stand on her original rights, or she had it in her power in the same event to ratify and confirm” the settlement. We must bear in mind that this settlement now before us, so far as it relates to the reversionary interest of the minor wife in her share of the personal estate of her father, to use the words of Lord Mansfield, had no operation. The instrument was not void or inoperative for all purposes. It bound the husband and his marital rights, but as to her it was ineffective. We may assume, however, for the purpose of the discussion, that she might when she became discoverte ratify and confirm it.I assume for the present that though the settlement was unquestionably void as against the infant wife, so far as it dealt with her reversionary estate, yet that she might when she became discoverte adopt and confirm it. I do not assert the proposition, but assume it. But the acts of confirmation relied on must be clear and unequivocal in their character, amounting in some shape to a gift of her right, and have taken place when she had a full knowledge of her position and of her rights.Mr. Marten urged that she had knowledge of the settlement and must be taken to have been aware that it was as to her inoperative and that she had a legal right to repudiate and put it aside. That is to say, she must be taken to have had in her mental view the solution of the difficulties which puzzled and misled the Vice-Chancellor, which occupied so much of the time of the Court of Appeal, and are now brought up to this House for final decision. It is true that one of the maxims of the law is Ignorantia juris non excusat. Mr. Marten did not so put it in terms, but his argument amounted to and was based on that. The true meaning of that maxim is that parties cannot excuse themselves from liability from all civil or criminal consequences of their acts by alleging ignorance of the law, but there is no presumption that parties must be taken to know all the legal consequences of their acts, and especially where difficult questions of law, or of the practice of the Court are involved. Lord Westbury in Spread v. Morgan 28 , dealing with a question of election thus puts it: “It is true as a general proposition that knowledge of the law must be imputed to every person, but it would be too much to impute knowledge of this rule of equity” (the rule which applies to election); “election as a question of intention of course implies knowledge.” So here, whether you call it confirmation, rectification, or acquiescence, the act relied on must have taken place with full and complete knowledge. Mrs. Seaton did not become discoverte until the judgment of the Divorce Court for the dissolution of the marriage became absolute on the 14th of November 1882, and her acts of confirmation, if any, must be looked for after that date. Mr. Wilkinson admitted, in answer to a question put to him, that there was but one such act, viz. the petition to the Divorce Court of the 23rd of November 1882. That petition necessarily recites some of the antecedent matters including portions of the settlement, and prays for the variation of the settlement by the extinction of certain powers of appointment and interest reserved to the husband. I entirely concur with my noble and learned friends that there is nothing in that petition, or in the report or order on it, which can reasonably and fairly be taken as a confirmation by Louisa Seaton of the settlement so far as it related to her reversionary interest in the fund in question.
Fitzgerald	Lauderdale Peerage Case	My Lords, I entirely concur. It appeared to me from the commencement of this investigation that there were two matters of fact from which, if they could be successfully established, the legal results were inevitable, notwithstanding the point which was raised at the conclusion as to the effect of a death-bed marriage. Those two facts were, first, that Colonel Richard Maitland, the ancestor of the claimant, had not parted with his domicil of origin, and next that a ceremony of marriage had been celebrated which, in the absence of proof to the contrary, we may call a legal marriage.Upon the question of domicil, that is to say, that Colonel Richard Maitland had never lost his domicil of origin, the evidence is all one way. There is not a scintilla of evidence upon which you can found a valid argument that Colonel Richard Maitland had parted with his domicil of origin. And there is one document which has not been adverted to, which is possibly not important, but a little interesting in the case, upon this question of domicil. The widow after the death of her husband, when sending one of his children to Scotland, describes herself in a rather affecting letter as sending him to his “home,” that is, his domicil; and rightly, because by the marriage of his parents he had acquired a domicil in Scotland, and therefore Scotland was properly referred to in that letter as his home. The extent to which the evidence must be carried to put an end to the domicil of origin is explained in clear terms in the Countess of Dalhousie’s Case 47 , and in Monro v. Monro 48 , both of which were in this House, and are reported in Clark and Finnelly. It is not upon light evidence or upon a light presumption that we can act, but it must clearly appear by unmistakable evidence that the party who has a domicil of origin intends to part with it, and intends to establish his domicil elsewhere. The case, therefore, is free from any difficulty upon the question of domicil; and at the time of this marriage Colonel Richard Maitland was a domiciled Scotchman, retaining his domicil of origin with all the consequences which, according to law, arose from it. Those consequences are explained in equally clear language in the Countess of Dalhousie’s Case 49 .Now, my Lords, let us pass to the fact of this marriage. I do not intend to say more than a word or two about it. I never, in the course of my experience (and, unfortunately for myself, that has been a very long one) heard a case where, at the end of 112 years from the marriage, a marriage had been so clearly proved as it has been in this particular case. Now it was said that it was not registered. It is quite true that there is no proof of any register of this marriage; but from the evidence it appears that there is no register during a period of—I forget whether it is thirteen or sixteen years—but a period covering the eventful year of 1772.It is also said that no marriage certificate was given at the time of the marriage by the officiating clergyman, Dr. Ogilvie. But that is an assumption which appears to me to be baseless. It is true that no certificate has been produced in proof; but are we at this distance of time to assume that none such was given? If given (and probably it was given) it would most likely have been given to the wife, it would have been preserved by her probably with precious care as her title-deed. But she died shortly afterwards somewhere in the interior; it was considerably over a century ago; and there is nothing before us to shew what became of the documents which she had, or what became of her papers. She had before that time parted with two of her children, and there was one, or perhaps two, remaining with her to be taken care of; but there is nothing before us to tell us what became of her papers or of her family papers. Probably if they had been discovered the certificate would have been found among them. It may be said that conflicts with the subsequent certificate given six months afterwards by Dr. Ogilvie; but it appears to me not in the least to conflict with it, for that certificate, given by him and verified before the mayor of New York, was given for a different purpose altogether. The woman, of course, would not, in order to satisfy the requirements of the War Office, part with what to her would be a document of inestimable value, the marriage-lines as they are popularly called; nor would that be a document which, if sent forward to the War Department, would probably have been acted upon; but the requirement was a verified document, deposed to and verified upon oath, proving this marriage to have been a lawful marriage, upon which the War Office could act; and accordingly a certificate to be verified before the mayor was prepared, given for the purpose of entitling her, as the widow of Colonel Richard Maitland, to the small annuity which was then given to the widow of a gentleman who had served his country well, and in one of her most remarkable wars.Then we have established before us the fact of a marriage, apparently legal, celebrated by an experienced officiating clergyman of the Church of England, because he had been so for sixteen or seventeen years; he was a minister, ordained in this country, and had gone out specially to Albany, and he had been for many years one of the officiating clergymen at the church of the Holy Trinity in New York.It was said in argument, both by Mr. Asher and Mr. Davey, that in the case of a death-bed marriage of this kind, the ordinary maxim, “omnia pr?sumuntur rite esse acta,” would not apply, because the marriage had not been, as it usually is, followed by cohabitation and recognition during the lifetime of both of the parties to the marriage. I took the liberty of reminding Mr. Davey, and he seemed rather startled at it, that that defect in the case was more than supplied by the fact that immediately after the marriage, and for more than one hundred years afterwards, there was a recognition of it by the family, in fact, down to the death of the late Earl of Lauderdale. During all that time there was a family recognition, as appears upon the documentary evidence with the case, of the fact of the legality of this marriage, and that the woman, Mary McAdam, was the lawful widow of Colonel Richard Maitland.There is one remarkable and somewhat interesting document in the case, namely, a letter from John Maitland, the brother of Colonel Richard Maitland, who was also an officer serving in America, written at the time when he was in New Brunswick. The force of which he was in command had in the course of the American war taken some small village or town in New Brunswick, and he writes with some surprise: “We found here our brother Dick’s widow,” describing her in that letter as the widow of his brother Dick. That recognition may be followed down through all the course of the documents. And coming by a jump at once to the year 1820, there is a remarkable document, namely, a memorandum signed on the 29th of March, 1820, by “A. C. Maitland Gibson” and “Frederick Maitland,” both members of the family, in which she is recognised and spoken of as Mrs. Maitland, the widow of Richard. Again, you come to the printed book prepared so carefully by Mr. John Maitland, in which there is again recognised and recorded for family purposes this marriage of 1772. He has taken care to remark it by this statement, that three of the sons were born before the marriage, but that there was one, a fourth, who if he had lived would have been a legitimate son of that marriage. Now the meaning of that record is plain. It was not fully appreciated by the parties that a marriage in America of a domiciled Scotchman was a Scotch marriage, and that that marriage would carry with it all the consequences of a subsequent marriage in Scotland in legitimating the previously born children. It is plain that it was supposed then by the member of the family who was the compiler of that book, that that law did not apply to a marriage celebrated in America, and that by establishing it as a matter of family record that three of the children were born before marriage, they would be illegitimate and would be excluded from the succession, if it ever opened to them, or to the descendants of any of those three elder-born children; the fourth, the younger one, having died without issue.My Lords, upon those facts there can be no doubt that the principle applies which was so clearly laid down in strong and unmistakable language in the case of Piers v. Piers 50 in this House, which had already been clearly stated in an earlier branch of the case by Lord Plunket, that when the fact of a marriage, which was an apparently legal marriage, is established, the law presumes, until the contrary is plainly and clearly established, that all that was required to give it legal validity and force took place.I should prefer, my Lords, in place of dealing either with the opinions of American lawyers or with the Duke’s laws, or with the Act of 1684, to rest upon that settled and satisfactory doctrine of law in this case, that when once the fact of the celebration of an apparently legal marriage is proved, it is to be presumed that everything has been rightly done until the contrary is established by some unmistakable proof. It would be full of danger if we were in the slightest degree to shake that principle; and it is well illustrated by the present case, when as to a marriage which was undoubtedly celebrated in 1772, we are asked 112 years afterwards, on litigation arising, to call for proof of the publication of banns or the fact of the grant of a license, which in ninety-nine cases out of one hundred it would be a practical impossibility to give. I do not wish, therefore, by any observations which I make that that doctrine should be in the least degree shaken, and I shall only add that if it were necessary to deal with the Duke’s laws or the Act of 1684, assuming that those laws were in force, I should myself require a great deal more than I have heard to establish to my satisfaction that under these laws the grant of a license or the publication of banns was what Mr. Asher called an essential pre-requisite, the want of which would invalidate the marriage. As far as I am at present able to form a judgment upon that part of the case, I should humbly concur in what has fallen from my noble and learned friend, Lord Blackburn, in which I understood my noble and learned friend, Lord Watson, also to concur.I do not presume to deal much with the point relating to the effect of a death-bed marriage, but from what little I have read or know of the law of Scotland I always understood that peculiar doctrine of the law of Scotland to apply only to the reduction of deeds executed on death-bed, and that that doctrine has never yet been applied to a marriage. We have in England such a law, but it is an exceptional law by Act of Parliament, providing that certain deeds or wills may not take effect unless executed a given time before death. That is somewhat analogous. Certainly, so far as I can form a judgment, I entirely concur with what has fallen from my noble and learned friend near me (Lord Watson) upon this branch of Scotch law; I think that it would be inconsistent with right and justice if this death-bed doctrine could be carried to the extent of holding that a marriage, which was a valid marriage, and which undoubtedly legitimated the children, should not have the effect of giving them the rights of legitimate children, as against an heir to whom the succession opened 112 years after the death-bed marriage.
Fitzgerald	Reichel v Mackarness	My Lords, I concur, and I can add nothing with advantage.
Fitzgerald	Tailby v Official Receiver	My Lords, I feel great difficulty as to the reasons which I am about to give. Before your Lordships proceed to decide finally the abstract question which it is said that this appeal raises, it seems to me to be necessary to review and get before the House accurately the facts of the case.[His Lordship having minutely considered the whole evidence in the cause, from which he deduced the conclusion that the whole liability of the mortgagor under the mortgages of 1879 and 1880 had been respectively discharged, and that the two deeds had become satisfied securities before any assignment to Tailby of the book debts, and consequently could afford no answer to the claim of the receiver, then proceeded as follows:—]It might, however, be unfit to act here on suggestions of fact, though arising on the documentary evidence alone, which do not appear to have been made in any of the courts below and which certainly were not brought under the notice of the acute and able judge of the Court of first instance. The case was put forward as a test case, and supposed to raise for decision the one large question on which the noble and learned Lords have just stated their conclusion.There is, however, a view of the transactions which must be disposed of. Let us assume that the instrument of 1879 was an existing security, unsatisfied and in full force at the time of the assignment of the book debts to Tailby, and that all the steps taken by the mortgagee had been regular and effectual. The deed of 1879 had not, as to the future debts, any greater operation than as an agreement for value to assign those future debts when they came into existence. I do not now pause to consider whether equity would from time to time, as debts became due, decree specific performance of that agreement. It was at least a contract which as between the immediate parties to it had certain efficacy, and was not wholly inoperative. If, for instance, as to future-acquired chattels coming within its provisions the mortgagee had managed peaceably to gain actual possession of them he could retain that possession as against the mortgagor; and so if, claiming to be entitled under his deed, to receive a future accruing debt, he had demanded and received payment of it from the debtor, the mortgagor could not recover from the mortgagee the sum he had so received. Let us see how this case stands in this respect. The deed of 1879 contains an assignment of future debts and also that comprehensive appointment by the mortgagor of the mortgagee as his attorney, to execute for him and in his name assignments of these future rights, when and as they should arise either to himself or to any other person, and also a power to receive those debts when and as they became payable and give full and effectual discharges for them, a power in fact to do for himself and in virtue of that authority all that a Court of Equity could do for him if there had been no difficulties in the way of obtaining relief from that tribunal. There is nothing in law to prohibit the mortgagor from conferring such an authority on the mortgagee, or to prevent parties from helping themselves if they can lawfully do so.The whole of the steps taken in November were lawful and unobjectionable, and the parties were competent to take them. The deed of 1879 professed to pledge these future debts to the mortgagee and conferred on him large and exceptional powers to enforce that pledge. His representatives availed themselves of their powers and position to enforce their rights, and did all that they could lawfully do as equivalent to taking possession and determining reputed ownership: see In re Hennessy 56 . The mortgagor certainly did not oppose, and the proper inference is that he acquiesced. If Tailby had received the amount of Wilson’s debt before the adjudication in January 1885, his title to retain it against the receiver would not be open to any question. Does the adjudication before actual payment and the intervention of the receiver make any difference? The latter does not appear to have intervened until the following month of May; the payment was actually made by Wilson in January previous. The assignee, trustee, and receiver in bankruptcy derive their title to the estate through the bankrupt and subject to the rights and equities which would affect it in the hands of the bankrupt, save where by statute for the protection of creditors overreaching rights are conferred upon them. There is no allegation that the adjudication here had any retrospective operation, nor is it alleged that the transactions with Tailby were tainted with any fraud, nor can I discover any satisfactory ground on which the receiver can override the proceedings of November which were binding on the bankrupt, and recover the money actually paid over in January.It seems to me therefore, though I express the view with hesitation, that the action of the receiver in the county court fails, that he is not entitled to recover the money received by Tailby from Wilson, and that the defendant Tailby is entitled to judgment. If, my Lords, I am correct in this view, no further question arises—the decision of the Court of Appeal and of the county court judge should be reversed, and the judgment of the Divisional Court should be restored.My Lords, in the course of the argument at the bar some of these considerations were thrown out for discussion, but it was said in reply that this was “a test case” to elicit your Lordships’ decision on an abstract question of great public importance. The Master of the Rolls is represented to have put the question thus: “It seems to me that according to the ordinary rules of construction, the deed of 1879 applies to the book debts which may become due to Izon in any trade which he may hereafter carry on anywhere, that is, any trade which it may please him during the continuance of the security, or which it may be for his benefit to carry on in any part of England, any part of Wales, any part of Scotland, or in any part of France, Germany, Ireland, or America. That is the true reading, and is that, or is it not, within the doctrine that the description of these book debts is so vague that the Court will hold that nothing passed under it?” It is not quite certain that this is critically correct, and the question would seem rather to be whether the description of the future debts professed to be assigned by the deed of 1879 was so vague and so uncertain that the mortgagee could not so far actively enforce it in any Court of Justice. I decline to decide test questions, merely because the case is called “a test case.” What is a test case? Probably it is meant to represent a case in which some question of law necessarily arises, governing some other like cases, and to which your Lordships are required to apply the crucial test of the judgment of the House.My Lords, when such a case comes before the House, your Lordships must and do decide it, but it is not the province of the House to decide abstract questions which are not actually necessary, as the foundation of the judgment of the House. The question has not, up to the present moment, been finally decided. It is one of no inconsiderable difficulty and involves considerations of public policy. What construction is to be put on “future book debts?” Does it mean the trade debts entered in the trader’s books, or does it mean the nett residue of those debts after satisfying the claims of those creditors by means of whose property those debts came into existence? Would an account have to be taken, as in the case of the trading of a bankrupt after bankruptcy, and without certificate, and debts becoming due to him in that second trading, and claimed by the assignee as after-acquired property? see Troughton v. Gitley 57 . The reports of Ambler were not unfrequently questioned, but the decree, taken from the registrar’s book, is given in the note to Tucker v. Hernaman 58 and the decision in Troughton v. Gitley 59 was adopted by Turner L.J.Suppose, too, in the case of future debts that the mortgagor had obtained bills and notes or other securities from his debtors, how are the rights and liabilities of the parties to be adjusted? Or suppose a trader to become bankrupt, his assets consisting largely of recent book debts, representing his stock in trade, out of which they were created; are those book debts to go to the holder of a bill of sale, probably some years old, not registered, and of which the real creditors had no notice?I allude only to these possible contingencies as illustrating some of the difficulties that beset the question, and indicating the inexpediency of carrying the law a step further than it has hitherto gone in practice.My Lords, in a case recently before the House, your Lordships considered that the policy of the Bills of Sale Act of 1882 was to prohibit, in cases coming within its provisions, bills of sale of property not in existence but which might be acquired thereafter 60 . Your Lordships are now asked to give effect to an instrument which, though a bill of sale of future debts of the most unlimited and undefined character, does not as to book debts come within the Bills of Sale Code.My Lords, I have listened to the weighty reasons given by my noble and learned friends, and I have read the judgment to be delivered by my noble and learned friend who is to follow me. That judgment is one of great learning and ability and remarkable for its boldness. I have weighed all the reasons so powerfully given, and hope your Lordships will excuse me if, for the present, I hesitate, and, for the reasons I have given, decline to express either assent to or dissent from the conclusions of my noble and learned friends.The course which I have deemed it expedient to adopt renders it unnecessary for me to consider the authorities. 
Fitzgerald	Edinburgh Magistrates v Blackie	From the opening of the learned Lord Advocate, the moment I heard it, I came to the conclusion that the whole question before us here depends upon the construction and effect to be given to the Act of 1874, and that we might quite easily draw our pen through all matters antecedent to 1840, when the series of statutes which ended with the Act of 1874 began. My Lords, it appears to me that the market and the market place in question are not what I would describe as a market or a market place under the charters, or any of the grants prior to 1840, but they are a statutory market in a statutory market place, and the rights of the public are now regulated entirely by statute and by bye-laws which have been regularly made under that statute. My Lords, I say no more than that, that being the case, I quite concur in the construction put upon the Act of 1874 by the noble and learned Lord on the woolsack and by my noble and learned friend opposite. In both their judgments, and in the reasons which they have given for them, I entirely concur.
Fitzgerald	Fleming v Hislop	My Lords, I entirely concur, and it appears to me that there is only one question in the case, namely, whether the interlocutor of the Inner-House has, as a matter of fact, found what is stated? That is to say, that the burning of these bings would create discomfort and annoyance to the neighbours.I entirely adopt the construction put upon the statute by the noble and learned Earl who proposed the judgment. Then upon that finding a question of law has arisen as to whether the finding in fact was sufficient in law to warrant the interdict which has been made. But I observe that the learned Lord Advocate did not contest that proposition; he did not venture for a moment to say that it was not sufficient in law to maintain the interdict if there had been this finding in fact against which he could not appeal—in truth it would have been useless for him to do so. There is no difference in this respect between the law of England and the law of Scotland; they rest upon the same principle; both acknowledge the undoubted right of the proprietor to the free and absolute use of his own property, but there is this restraint or limitation imposed for the protection of his neighbour, that he is not so to use his property as to create that discomfort or annoyance to his neighbour which interferes with his legitimate enjoyment.There being no question of law in contest at all before us, I forbear from making the observations which, if it had been contested, I might have thought proper to make; and I shall only remind your Lordships of this, that it was clearly impossible to maintain a proposition of law favourable to the appellants; for the language in this case is, sensible and personal discomfort, and that which creates in your neighbour sensible and personal discomfort is a nuisance which the law prohibits.
Fitzgerald	Caird v Sime	 My Lords, the question we have to determine on this appeal seems to me to be one of pure law. I agree with my noble and learned friend (Lord Watson) that we must read the interlocutor of the Second Division as if it contained an express finding that the publications complained of are in substance a reproduction of the appellant’s lectures.It was not contested that by the common law of Scotland, as well as by the common law of England, every author has a right of property in his compositions so long as they remain “unpublished,” and that a private lecturer may lawfully impose an express condition on persons allowed to hear his lecture, that they shall not publish what they hear, and that such a condition may also be lawfully implied from the circumstances. In such cases the common law protects the author’s right of property and forbids infringement. On the other hand, a private lecturer may deliver his lecture under such circumstances as indicate his intention to give his words to the public at large. In the latter case, the lecturer has technically published his lecture, and has abandoned the protection which the common law would otherwise afford. We have now, however, to deal with a case very different from that of any private lecturer.The facts, as to which there is no dispute, are that the pursuer fills the chair of Moral Philosophy in the University of Glasgow. It is not necessary to investigate the history of that university, as its status is now in substance similar to that of the other universities of Scotland. They are all ancient public endowed corporations established by public authority for the special purpose of public instruction in theology, law, medicine, and all the arts. In that instruction the public at large has a deep and direct interest. For an outline of the University, and the office of its professors, and their functions and duties, I refer to the eloquent judgment of the Lord President. In point of modern regulation and government they all come under the provisions of the imperial statute 21 and 22 Vict. c. 83, which is a statute “for the advancement of religion and learning, and to make provision for the better government and discipline of the universities of Scotland.” The University of Glasgow has under that Act a chancellor; a Senatus Academicus “to superintend and regulate, inter alia , the teaching and discipline of the university”; a university Court to control the decisions of the Senatus Academicus, and to enforce due attention on the part of the professors to regulations as to the mode of teaching and other duties imposed on them, and to fix and regulate the fees from time to time in the several classes; it has also a university council, and in order to produce uniformity in the several universities the statute constitutes a general body of commissioners with legislative powers, for a limited period, to make statutes and ordinances, such as in their opinion would be conducive to the well-being of the universities, the advancement of learning, the course of study, and the manner of examination, &c. The statute also gives to those commissioners an important power, namely to recommend grants of public money for certain purposes, and amongst others, “for increasing the salaries presently attached to existing professorships.”The pursuer was a professor in the University of Glasgow, nominated to his chair by the Court of the University, remunerated partly by salary paid out of the University revenues, or out of moneys voted by Parliament, and partly by class fees which, however, equally formed part of the University revenue, though allocated for the time being to him. His obligation and his duty were to teach the nation through its youth, according to the regulations laid down by the governing body of the University. It does not appear what those regulations were, nor is it alleged that there were any restrictions or conditions imposed on the students of the class, or other auditors, by that governing body, as to the use to be made of the professor’s lectures when delivered. I assume too, as the contrary does not appear, that the pursuer was left free to teach by lectures if he thought fit. He did teach by the instrumentality of reading lectures. The broad question for our consideration is whether that reading of his lectures to those assembled in the lecture-room is a publication to the nation.After much anxious consideration, I have come to the conclusion that the delivery of the lectures was a publication to the public at large, and that being such, the pursuer has abandoned to the public the exclusive rights which he otherwise had, and the protection which the common law would otherwise have afforded him. I have struggled against this conclusion, as I am conscious how superior my noble and learned friends are to me in knowledge and judgment, but I have been unable to agree with them, and am compelled, on the other hand, to accept the broad and vigorous reasoning of the Lord President and Lords Young and M’Laren.It was urged in your Lordships’ House in argument, that a decision in favour of the respondent would operate unjustly on the professor as depriving him of emoluments which he might otherwise derive from the publication and sale of his lectures, by himself or his representatives, for all time; but this seems an exaggerated, and, to some extent, an imaginary apprehension. There is no power, save that of the University, to interfere with the professor in publishing his lectures for sale, and the public would probably prefer the publication issued with the stamp of his authority, and containing his emendations and additions. This is, however, a consideration which we cannot enter upon. Again, it was urged that the professorial practice of repeating the same lecture session after session, in like manner as a minister repeats his sermon, would be interfered with. If this was so, it would seem to be a desirable result.The Sheriff in his note to the interlocutor of the 23d of November 1883, says, inter alia , on this point,—“The professor’s thoughts as expressed that year must be the same as those to be similarly expressed the next year.” This would seem to assimilate the professor’s duty to the cuckoo cry of repetition. I rather think that this eminent professor would repudiate such a suggestion, and tell us that the lecturer should remember that,—“Beneath this starry arch naught resteth or is still,”—and that his duty is to watch over and criticise new modes of thought, new works, the march of intellect, and those discoveries which,—“Make old knowledge pale before the new.” Even in pure mathematics there may be alterations and additions, and ethical science is not free from the inexorable law of mutability.Lord Young in the reasons for his judgment says:—“Now, I have to observe that neither the common law of property nor the statute law of copyright applies to teaching in a public university. It is obviously expedient in the public interest that such teaching should be public, and open to public comment and criticism. This accordingly, I apprehend, is the reason why lectures in public universities are excepted from the provisions of the Act of 1835.” My Lords, I concur with the learned Lord (Lord Young) in opinion that it is essential to the public safety that university teaching should be exposed to comment, to searching criticism, and to the full blaze of public opinion. How can this be attained if the contention of the pursuer is well founded? If the lecturer can prevent all other publication of his lectures than that which takes place in his class-room, the nation may be left in Cimmerian darkness as to the teachings of its youth in its great universities. Unless there be full and complete publicity, criticism would be impracticable, and a mere empty sound.Lord Young, in the passage just quoted, touches on another subject, namely, the Act of 1835, to which, perhaps, sufficient attention has not been given.The bill which became the Act of 1835 (5 and 6 Will. IV. c. 65) was introduced into this House about ten years after Lord Eldon had given his decision on the injunction motion in Abernethy v. Hutchinson , 11 and it is not improbable that the difficulties supposed to exist in consequence of Lord Eldon’s reasons led to the bill. It is a bill entitled “For preventing the publication of lectures without consent.” The preamble is obviously taken from the Copyright Act, 8 Anne, c. 19, and the 1st section is large enough to apply to and embrace all lectures wheresoever delivered; sec. 2 prohibits under certain penalties the publication of any lecture in any newspaper without the license of the author; and sec. 3 provides that no person allowed for fee or reward or otherwise to be present at a lecture delivered in any place shall be deemed to have leave to print or copy or publish such lecture. The bill as introduced in this House, seems to have passed without debate, but in the Commons it met with considerable opposition on the broad ground that if it was intended to shield public lectures from public  inspection it ought not to receive the sanction of Parliament. In the course of the discussion, attention was specially directed to Abernethy v. Hutchinson , 12 which was prohably misunderstood. It ended in a compromise, by which words were added at the end of clause 5, providing that the Act should not extend “to any lecture delivered in any university or public school or college, or on any public foundation, or by any individual in virtue of, or according to any gift, endowment, or foundation, and that the law relating thereto shall remain the same as if this Act had not been passed.”In Millar v. Taylor , 13 it is reported that “Mr Murphy, counsel for the defendant, strongly contended from the amendments made in the Commons on the Statute of 8 Anne, and from the change of title, that Parliament intended to take away or to declare that there was no property at the common law,” but to this Willes, J., answered, that “the sense and meaning of an Act must be collected from what it says when passed into law, and not from the history of the changes it underwent in the House where it took it rise. The history is not known to the other House or to the Sovereign.” The rule so aptly expressed has always been enforced in this House. But, strangely enough, Willes, J., does, shortly afterwards in the same judgment, seem to offend against his own rule. He uses language which I quote as not inapplicable to the statute before us. His language is this:—“The preamble is infinitely stronger in the original bill as it was brought into the House and referred to the committee. But to go into the history of the changes the bill underwent in the House of Commons, it certainly went to the committee as a bill to secure the undoubted property of copies for ever. It is plain that objections arose in the committee to the generality of the proposition, which ended in securing the property of copies for a term without prejudice to either side of the question upon the general proposition as to the right.”Now, looking at the 5 and 6 Will. 4, we may at least say that objection was taken in the Commons to the generality of the proposed measure, and the proviso was there added at the end of the 5th clause. The statute seems at once in its first clause to recognise the property of the lecturer in his lecture, and to confer on him the sole right and liberty of printing and publishing such lecture, even though he may have delivered the same under such a state of circumstances as would have otherwise amounted to an abandonment of his words and thoughts to the public. “Leave of the author,” and “consent of the author” would probably be interpreted as meaning express leave or consent, such as would confer a title on the licensee, and sec. 4 seems to support that view. There is difficulty of construction in every part of this short statute, but especially in sec. 5. I am unable to read the concluding proviso of sec. 5 save as indicating a statutable declaration that lectures delivered in a university, which is necessarily a public institution, become thereby public property for the purposes of publication and public criticism. As to the concluding sentence, “that the law relating thereto shall remain the same as if this Act had not passed,” the words seem to me to have no real force. The reservation is of such common law right, if any, as existed before the Act. The Statute does not interfere with or abridge any common law right, but leaves it as it was. In my judgment the only common law right the university lecturer has is a right of property in his   lecture when composed, and before its public delivery in the university. There seems to have been no decision whatever on the subject of lectures delivered in a public university prior to the passing of that Act. I am unable to accept Abernethy v. Hutchinson 14 as final or satisfactory on the propositions, if any, which it is supposed to decide. It arose on motion only, supported by the affidavit of the plaintiff; there never was a plenary hearing of the cause. Lord Eldon treats as a pure question of law, which he would not decide, “property in sentiments or language not deposited on paper.” He then goes into implied contract, or breach of trust, which is wholly inapplicable to the case before us, and it is observable that his strictures are principally, if not wholly, directed against printing for profit. He adopts, in substance, the proposition of Aston, J., in Millar v. Taylor , 15 that “he has no right to publish for profit the identical work.” On the first hearing of the motion, Lord Eldon refused the injunction, but gave leave to renew it “on the ground of breach of contract or breach of trust.”The bill having been amended, and the amendment having been supported by affidavit, the motion was renewed on the ground of “contract” only; and Lord Eldon’s decision of the motion is expressed in these words:—“He was clearly of opinion that whatever else might be done with it, the lecture could not be published for profit.” That is the whole decision of Lord Eldon. Lord Eldon makes a passing observation (which has been alluded to already by my noble and learned friend, Lord Watson), which requires attention. He says:—“Nor can I conceive on what ground Sir William Blackstone had the copyright in his lectures for twenty years, if there had been such a right as that. We used to take notes at his lectures; at Sir Robert Chambers’ lectures also the students used to take notes; but it was never understood that those lectures could be published.”These observations of Lord Eldon are rather of a negative character, and are somewhat loose, but are undoubtedly valuable as shewing that Lord Eldon had in his mind the case of the university professor. But what do they amount to? I am at this moment unaware whether Sir William Blackstone’s lectures were ever published as lectures, or that anyone asserted a right to do so, or was prevented from doing so. When Lord Eldon speaks of Blackstone’s copyright for twenty years he is obviously referring, not to his lectures as such, but to Blackstone’s Commentaries. The Commentaries, which were founded on the lectures, revised, corrected, and enlarged, with notes, were first published in 1765. Nine editions were published in the lifetime of Sir William Blackstone, all revised and added to by the learned author. He prepared also a tenth edition, which was not published until after his death in 1780. He had an undoubted copyright in “The Commentaries” under the Statute of Anne.Finding a statement in the debate in the House of Commons on the bill of 1835, that the Abernethy suit had been abandoned, your Lordships made some inquiry, with the result that the injunction had been dissolved, but under what circumstances we have been unable to ascertain. I cannot think that Abernethy v. Hutchinson 16 is entitled to the great weight that has been attributed to it, and it seems to me to state no principle which ought to guide us in the present case. The public lecturer at a university has no authority of his own to impose  conditions on his pupils or those entitled to attend his lectures; nor can it be truly said that he could create a trust in his own favour. It is not necessary to consider what the university might do in the exercise of its plenary powers, “for the advancement of religion and learning, and improving and regulating the course of study therein.”My Lords, in the legal view which I have adopted it is not necessary for me to consider the weighty authorities to which we have been referred; some of them rather obscured by the extreme length of the judicial reasons. My opinion is that a public lecture delivered publicly at a university by one of its professors in the performance of the public duty he has undertaken becomes by the act of delivery published to the nation, and may be likened to a gift from the university or the professor to the nation.In the course which the case is now about to take my opinion becomes worthless. I am bound to assume that I am wrong in point of law. Your Lordships’ judgment settles the law finally, and in yielding a willing obedience I have, at least, the palliation for mistake in law that I have erred in company with the Lord President, the Lord Justice-Clerk, and four other able and eminent Scotch Judges.I have only to add that on looking at the debate in the House of Commons 17 I find it stated there by a person who had, or at least ought to have had, the most full and accurate knowledge on the subject, namely, the late Mr Wakley, who was member for Finsbury, and was one of the editors of the Lancet , against which paper the Abernethy case had been instituted, that the suit had been abandoned by the professor in consequence of its having been found that he held the position of a public professor.
Fitzgerald	White v Tyndall	My Lords, this appeal is from an order of the Court of Appeal in Ireland of the 21st of February 1887, reversing a decision of the Common Pleas Division.The action was on covenants contained in a lease dated the 21st January 1842, made by Richard Pope to George White and Albert White, of a corn store and premises in the liberties of the city of Waterford, for a term of sixty-eight years, at a rent of £150.The plaintiffs in the action were Tyndall and several others, to whom the estate and reversion of Pope had come, and the defendants were Albert White, the surviving lessee, and the executors of George, his co-lessee, who had died in January 1883. The writ of summons was issued on the 18th December 1885. The rent claimed by the plaintiffs was for the year ending the 29th of September 1885. The plaintiffs also claimed a considerable sum on the covenant for keeping in repair. The defendant Albert White did not defend the action. The other defendants (executors of George, the deceased lessee) put in several defences to each portion of the demand of the plaintiffs, to which there was a reply and a demurrer.It is not necessary to refer further to the pleadings, as eventually the question which arose was whether the statement of claim disclosed a cause of action against the defendants (executors of George) for breaches of covenant occurring after his death.The question is whether the covenants of the lessees were joint covenants only, or were the several covenants of each of the lessees with the lessor. The plaintiffs alleged that the covenants were to be interpreted as several. The executors maintained the contrary.The question thus raised is one of construction of the covenants; but in considering that question we have to look at and consider the whole instrument. The judgment of the Common Pleas Division, as delivered by Morris L.C.J., is very short and goes directly to the real point. The Lord Chief Justice states his view that the words of the covenant in clear and unambiguous language express a joint covenant, and he adds:“In Levy v. Sale 26 , where it was argued that a similar covenant, though in form joint only, should be construed, according to the rules of equity, as joint and several, Lush J. says: ‘The authorities I find are uniform in holding that where there was no antecedent separate liability, but the obligation exists only by virtue of a joint covenant, the extent of its operation is measured by the words used, and the construction was the same in equity as at law.’ That case would be identical with the present, except that here the demise is to the two lessees as tenants in common. But the covenant to pay rent, if plainly a joint covenant only, cannot be treated as several by reason of the interest taken by the lessees. The covenant is, in my opinion, a joint covenant. The demurrer must therefore be overruled.” That judgment came before the Court of Appeal and was reversed, the Lord Chancellor of Ireland, who presided, observing that “in the case of Sorsbie v. Park 27 Parke B. thus stated the rule: ‘A covenant will be construed to be joint or several according to the interest of the parties appearing upon the face of the deed if the words are capable of that construction; not that it will be construed to be several by reason of several interests if it be expressly joint.’ I do not think that the words of the covenant here are so clear and unambiguous as to exclude regard being had to the interest of the covenantors in the property. If, in the words of Parke B., the covenant was “expressly joint” it should be so construed, but I do not hold the words of the covenant to be clear in the present case. Therefore, recognising the rule to the fullest extent, I apply it differently from the method adopted in the Common Pleas Division. I accordingly, although not without doubt, construe the covenant as a several as well as a joint covenant, and the executors of the deceased covenantor remain liable to pay the rent, and to repair.” We should find much difficulty in concurring in that judgment.The case and the numerous authorities cited were discussed by FitzGibbon L.J. very learnedly, but we do not think it necessary to follow the criticisms of the learned judge. He concludes thus, after reading the language of Lush J. in Levy v. Sale 28 :“Aproposition which we do not question; but the observation of the Lord Chief Justice upon that case in the judgment appealed from shews exactly the error of the decision, for he says, ‘That case would be identical with the present except that here the demise is to the two lessees as tenants in common.’ That is the very distinction which makes all the difference and requires us to hold that, the covenant following the interests of the parties, the demurrer must be allowed.” The reasons for the decision of the Court of Appeal were, therefore, as it appears, 1st, that the language of the covenant was ambiguous; and 2nd, that in such case the demise to the lessees “as tenants in common” made all the difference, and established error in the judgment of the Court of Common Pleas.I now proceed to examine the language and provisions of the lease which we have to construe. We may dismiss at once the supposition that the lessees were co-partners in trade, and acquired the leasehold as such. It may have been so, but that it was so is mere conjecture. Nor can we give any weight to the argument drawn from the use of the word “their” in the reservation of the right of way to the lessor. The inference from the lease is that the lessor was sole owner, and entitled to a single reversion in the whole, and as it does not appear that the lessees had any previous connection with the premises, there is no ground to suppose that there was any antecedent liability.The habendum is “to the said George White and Albert White, their executors, administrators, and assigns, as tenants in common, and not as joint tenants,” and the reddendum is “yielding and paying therefor and thereout yearly and every year during the term to the lessor, his executors, administrators, or assigns, the yearly rent of £150.” It may be observed that if an action had been instituted on the reddendum, it should prim? facie have been against the two jointly, or the survivor.The rent then so reserved and payable is a single rent, payable to one individual (the lessor) in one sum by the two lessees. In case of any part of the rent being in arrear the lessor’s right of distress and power to re-enter fasten on the whole premises. There are other provisions in the lease to which it is not necessary to refer, and which may be passed by with one observation, that they all import, or at least are consistent with, a single obligation by the lessor to both lessees, a joint obligation on the part of the lessees towards the lessor.The covenants in question are as follows:—[His Lordship read the covenants set out above.]The lien of these covenants, as well as the words of obligation, unquestionably import joint covenants, and it was not contended that the words “or some or one of them” could have the effect of making obligations several, which without them would be joint. The authorities are all the other way.It has not been made apparent to us that there was any ambiguity in the language of these covenants, and indeed the counsel for the respondents admitted that if these covenants stood alone and uncontrolled by anything else in the instrument, they were free from ambiguity, and were in form joint obligations and should be so interpreted; and being asked on what he relied as coercing us to depart from the words of the instrument and interpret that which was in form and language the joint covenant of the two lessees as being the separate covenant of each, in reply he pointed to the words of the habendum “as tenants in common and not as joint tenants” as giving severally the undivided interest to the lessees, coupled with unity of possession.The question we have to consider is whether that provision inserted in the habendum, with the apparent purpose of preventing what might be the evil of survivorship as between the lessees, has or ought to have the effect of converting a covenant made by the lessees jointly with the lessor into the separate covenant of each.The grant was in form joint, and though the words “as tenants in common and not as joint tenants” are found in the tenendum they are immediately followed by a reddendum joint in form and creating prim? facie a joint obligation. No authority was cited on the effect of these words as determining or affecting any right of the lessor, but it was suggested that their effect as between the lessees was to prevent inter se the right of survivorship, and that therefore we should construe the covenants, though in terms expressly joint, as the several covenants of each.  The current of modern decision has been, as we think it ought to be, to adhere to the very words of the contract when they are plain and unambiguous and not to depart from them on grounds of hardship or inconvenience. The contract in such cases represents in its language the intention of the parties, and if they intended otherwise they should have said so. We ought to hold ourselves bound by the express and unambiguous covenant before us, unless coerced by authority to put on it a different construction from that which its words import.The argument was that we should mould the covenant of the lessees because of their separate interests in the subject matter of the grant, but no decision has been cited going so far. The passage cited from Platt (p. 123) is expressed “shall be measured and moulded according to the interests of the covenantees.” No decision to which we were referred goes beyond that.Slingsby’s Case 29 dealt with the several interests of the covenantees, and the illustration put by the Court to some extent shews the reason of the rule in the case of covenantees; and so the rule in Eccleston v. Clipsham 30 is confined to the interest of the covenantees; and the paragraph in the Touchstone, chapter 7, page 166 (Atherley’s edition), founded on Slingsby’s Case , is to the same effect. There are reasons for the rule applicable to separate interests in the covenantees as regulating the right and the form of suit on the covenant, but no authority has been brought under our notice that the rule was applicable to the case of separate interests in covenantors.The counsel for the appellants was asked whether he had been able to find any decision applying the rule to the latter case, and he informed us he had not. We do not mean to say that there may not arise cases in which the entirely separate interests of the lessees would render it necessary, in the interests of all parties, to interpret covenants differently from their express words. This is not such a case.The argument of hardship on the plaintiffs, if the covenants in question are to be considered as joint only, was of course urged. It probably is the case that the advantages which a joint covenant originally afforded to the lessor are now more than counterbalanced by the disadvantages which, under altered circumstances, now beset the assignees of his estate; but that cannot affect our decision, and the plaintiffs are not without remedies. They may distrain and they may evict. Their rights as reversioners are only interfered with as to an action on the covenants in question.My Lords, I have, on the whole, come to the conclusion that the covenants in question are free from ambiguity, and are in their language and form joint and not several, that there is nothing on the face of the instrument to warrant us in putting on the covenants any other construction than that which their language imports, and consequently that the decision of the Court of Appeal should be reversed, and the judgment of the Common Pleas Division restored.
Fitzgerald	Trevor v Whitworth	My Lords, upon the first two questions raised by the appellants it is not necessary to express any opinion.The third question is one of great public importance, and one cannot but feel satisfied that at last it has come to the point where it is necessary to pronounce an authoritative decision upon it.Upon carefully reading the two very elaborate opinions which have been already delivered upon this subject, and the very weighty opinion which has yet to be delivered by my noble and learned friend who sits near me (Lord Macnaghten) and deliberately considering them, I have laid aside what I intended to be my own judgment, and I need only state my entire concurrence in those opinions. I consider that the decision which the House has arrived at is a most wholesome one in the public interests.I wish to advert to a case to which I called attention in the course of the argument, in which a very elaborate judgment was delivered by FitzGibbon L.J.—I refer to In re Balgooley Distillery Company 44 . I think that affords the ablest criticism which has taken place up to this morning upon the authorities and upon the question which we have now to determine.
Fitzgerald	St Johns Vestry Hampstead v Cotton	My Lords, I concur, and would say no more but for my great respect for the eminent judges who have differed in opinion upon the question before us.We are to read sects. 52 and 53 in their ordinary sense unless it shall have been made to appear that a literal and grammatical interpretation would necessarily create difficulties and injustices which the legislature could not be taken to have intended. In my opinion no sufficient grounds have been disclosed to induce us to depart from the ordinary, literal, and grammatical construction, and to interpolate words in sect. 53 which are not to be found in that section.Sect. 52 is confined to cases of sewers constructed “for the drainage of any new street, or of any house or houses erected since the 1st of January 1856,” the expenses of which are to be borne “by the owners of such street or houses and of the land abutting on such street.” Mr. Philbrick contends that sect. 52 embraces all new streets which come within the definition of, or which popularly may be called, “new streets” and it would be just that the owners of such property should pay the expenses of the construction of a sewer made for their benefit; but it would cease to be just if that property had been previously taxed for sewers rates without receiving any equivalent. That injustice was to be provided against as well as the case of old streets in a similar condition, that is to say where sewers rates had been levied previously without any equivalent.Sect. 53 embraces both cases. It applies to streets both new and old where there has been no sewer but where sewers rates have been levied previously, in which case the owners are made subject only to an apportionment to be determined by the vestry, but they are to be free of charge if sewers rates have been levied for five years prior to the 1st of January 1856.Such seems to me to be the plain interpretation of the two sections; and I have been able unable to discover any such difficulties or anomalies arising from that interpretation as to lead me to the conclusion that the “governing intention” of the legislature was something different from that which it has literally expressed.The case in all its aspects has been so fully and clearly disposed of by my noble and learned friends that I forbear to make any further observations.
Fitzgerald	Inland Revenue Commissioners v Glasgow And South Western Railway Co	My Lords, for the reasons given by the noble and learned Lord, the Lord Chancellor, and by the noble and learned Lord opposite (Lord Watson), I am of opinion that the interlocutor of the 22nd of January, 1886, by which the Court of Exchequer in Scotland determined “that the sum of £9499 8s. 3d. sterling is not to be reckoned part of the consideration for the sale on which the conveyance mentioned in the case was granted,” should be reversed, and that the determination of the Commissioners of Inland Revenue should be restored.The conveyance in question is undoubtedly a conveyance on  the sale of property whereby property was legally transferred to the railway company. What was the property so transferred? The lands in question, the conveyance of the lands carrying by its very force the right to the immediate possession, and thus determining the occupation of the vendor. From the conveyance the £9499 8s. 3d. seems to have been apportioned by the jury as compensation for loss of business. But how was that loss occasioned? The answer must necessarily be, by the determination on the conveyance of the vendors’ right to the possession and occupation of the lands. The conveyance then appropriately goes on to say, “said three sums amounting in all to the sum of £52,658 6s. 7d.” That sum, no matter how you may subdivide it, no matter how you deal with it, is the price to be paid by the railway company in one shape or other for the right to the lands and the immediate occupation, and, in my judgment, forms the consideration for the sale.
Fitzgerald	Turquand v Board of Trade	My Lords, I too concur in thinking with the noble and learned Earl that the construction put by the Court of Appeal upon the sections of the Act of Parliament which relate to the question now before us, was the correct interpretation of that statute, and I will also add that the conclusion arrived at is the wisest in the interest of the creditors. It is true, as it has been observed, that this authority given to a public officer may be the subject of abuse, but I think that is amply provided for in a preventive manner by sect. 90 ; and there is also authority given to the Board of Trade to punish a trustee for any official misconduct.
Fitzgerald	Metropolitan Railway Co v Wright	My Lords, I concur in the conclusion announced by the noble and learned Lord on the woolsack, and I should not add a word but that it is very desirable that we should understand the grounds upon which the Courts exercise a control over the verdict of a jury once found. In this case there was evidence given at the trial on both sides, and on all the issues, proper to be submitted to and considered by the jury. Such appears to have been the opinion of the Divisional Court, and it was clearly that of the Court of Appeal. The judge who presided at the trial could not properly have withdrawn the case from the jury. The jury gave their verdict for the plaintiff.The judgment of the noble and learned Earl who presided in the Court of Appeal imports that a verdict once found is not to be set aside unless it appears to be a verdict perverse or almost perverse. If my recollection does not mislead me, we have departed in this House, in several instances, from the old rule which introduced the element of “perversity,” and have substituted for it that the verdict should not be disturbed unless it appeared to be not only unsatisfactory, but unreasonable and unjust. The question, then, for your Lordships’ consideration is whether the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust. I am of opinion that the appellants, upon whom the onus lies, have failed to establish that this verdict was unreasonable or unjust, and therefore, I think that it ought not to be disturbed. There is no principle at stake, and there is nothing involved in the case save the amount of the verdict.
Fitzgerald	Learoyd v Whiteley	My Lords, I concur with my noble and learned friends in opinion that the decision of the Court of Appeal should be affirmed.There was no controversy in the Court below or at your Lordships’ Bar as to the rule which in such a case as the present governs the duties and liabilities of trustees, and I am satisfied to accept in substance the exposition of Cotton L.J. at p. 350, of 33 Ch. D. , though it may be open to some verbal criticism. The rest of the case relates to the proper view of the facts, and I am compelled to take the same view as my noble and learned friends, viz., that the trustees did not exercise ordinary care in investing the money intrusted to them. They invested the trust fund on a very insufficient security and without due or proper inquiry. It may well be described as a loan on a security the sufficiency of which depended on the prosperity of a hazardous manufacture carried on by the mortgagors on the mortgaged premises.I concur with my noble and learned friends in affirming the decision of the Court of Appeal. I do so with that regret which the judge feels in every case where his decision fixes liability on trustees who have acted honestly but erroneously and to some extent negligently in not requiring more full and precise information than they received from the valuators they employed. In my opinion the trustees in selecting and adopting the security in question did not exercise the care or foresight which a man of ordinary prudence ought to exercise and would probably exercise in making such an investment. I am not disposed however to say that the fact that the investment was one for the benefit of the tenant for life and after her decease then for her children, is to be entirely left out of consideration. It was not to be a temporary investment but one to last for many years if not called in or paid off.Lopes, L.J., thus accurately describes the security which the trustees accepted: “Its value mainly depends on the success of a speculative and fluctuating business, a business for which it is difficult to find customers” (i.e. purchasers), “a business largely dependent on the energy and solvency of those working it,—a business of necessity of precarious duration, and which cannot be carried on without such an excavation and destruction of the soil as must eventually leave what remains nearly useless for agricultural and other purposes;” and, I may add, a security of a peculiarly hazardous character, and in reference to which it has been properly observed that the value of the buildings and fixed machinery depended entirely on the mortgagees being able to find a purchaser for it as a going concern for the manufacture of bricks.  Upon the minor point in the case I also concur with my noble and learned friends.
Fitzgerald	Abrath v North Eastern Railway Co	My Lords, I do not intend to make any observation upon the grave question on which my noble and learned friend (Lord Bramwell) has expressed his opinion so forcibly, as to whether this action lies against a corporation. That question is not now  properly before us. We have had no argument upon it, and in the view which your Lordships have taken it is unnecessary for the decision of the case. I have no doubt that the weighty observations of my noble and learned friend will be instructive in future, and will always carry with them that force before any tribunal which they so eminently deserve. But I shall only say of corporations, and of these trading corporations especially, that I have often heard it observed that they certainly are very frequently without conscience, and sometimes very malicious.To deal with the case as it really comes before us, I do not entertain any doubt that the issue upon the question of probable cause as well as upon the question of malice lies upon the plaintiff, in this sense, that the plaintiff is bound to offer evidence sufficient, if uncontradicted, to sustain both these issues on his behalf. At the close of the plaintiff’s case, supposing it had closed there, and no evidence had been offered directly on behalf of the defendants, was there such a case upon the two issues as that it could be said that there was evidence to sustain the issues for the plaintiff? I so far differ from the opinion of my noble and learned friend that I think there was evidence upon both issues, if uncontroverted, from which the jury might have found, and the judge who presided, drawing the proper inference from the facts himself, might have found in the plaintiff’s favour. It is unnecessary for me here to point out in detail what that evidence was. But upon the whole of the evidence produced on both sides the learned judge put two questions—and, in my opinion, two very proper questions—to the jury for the purpose of informing his mind as to what was the proper inference for the judge to draw upon this very question of the presence or absence of probable cause.The jury answered the two questions in the defendants’ favour, and though possibly I might myself have come to a different conclusion upon the first question, I cannot say that the verdict was an unreasonable one, or so far against the weight of evidence that it ought not to stand.As to the alleged misdirection, I do not think that the summing-up of the learned judge, taken as a whole, and together with the questions he put, could have misled the jury.
Fitzgerald	Northcote v Owners of the Henrich Bjorn	My Lords, I had the honour of being one of the tribunal which decided the appeal in the case of the Rio Tinto 62 , and I then formed an opinion on the question whether the 6th section of the 3 & 4 Vict. c. 65 created a maritime lien for “necessaries supplied to a foreign ship” which I have not had since any reason to change. The Judicial Committee had in that case to consider this very question: their decision was unanimous, and the reasons for it as delivered by Sir James Hannen met with the entire approval of the Lords present. It is a case in point, though it does not decide the very same question as that now before us, but I agree with my noble and learned friend (Lord Bramwell) that the “reasoning there used may be entirely adopted.” The conclusion which I had reached in the case of the Rio Tinto 63 is in precise accordance with the decision which my noble and learned friends have just announced and with the clear and exhaustive judgment of the Court of Appeal as delivered by Fry L.J.The course of this cause has been very singular. The plaintiffs in their statement of claim do not allege or set up any maritime lien, and the defence was substantially a denial that, save as to a small sum paid into court, any necessaries had been supplied by the plaintiffs. It came before Sir James Hannen for trial, but the allegation of a maritime lien does not appear to have been raised, nor was his attention at all directed to it. The parties then went before the Court of Appeal, and it was in the argument there that maritime lien was for the first time suggested.I entirely concur with my noble and learned friends and have nothing to add to their reasons. I desire to point out that the two main propositions on which Mr. Cohen rested the appellants’ case—viz.: 1. That at the time when the Bold Buccleugh 64 was decided there was no proceeding in rem in the Admiralty Court save where there was a maritime lien; and 2. That there was no procedure in that Court to found jurisdiction except where there was a maritime lien—were not shewn to be well founded.It must now be taken as established that prior to 1840 the Court of Admiralty did exercise a jurisdiction in rem for the purpose of enforcing a claim against the owner though there was no maritime lien, and also in personam, in proper cases.
Fitzgerald	Hamilton Fraser And Co v Pandorf And Co	My Lords, the damage to a portion of the cargo of rice carried by the defendants’ ship was not occasioned, either remotely or immediately by any negligence of the defendants as alleged in the statement of claim, but they may nevertheless be liable, and the real question is, whether the defendants have established that it arose from a peril of the sea coming within the exception contained in the charterparty and in the bill of lading. I agree with my noble and learned friend opposite (Lord Watson) that the exception “peril of the sea” has the same meaning whether it occurs in a marine policy or in a charterparty or bill of lading, and is to be so interpreted, but that when the action is on the contract of carriage you may look behind the proximate or immediate cause for the purpose of ascertaining whether the remote cause may not have been the negligence of the carrier, and indeed the carrier is usually under the necessity of establishing that no negligence of his had led to the calamity. Thus, for instance, if a ship is cast on the rocks by force of the winds or sea, that is a loss by a peril of the sea within the exception, but in an action against the carrier it would be open to consider whether the ship being placed in that position did not originate in negligent navigation.At the close of the argument I was slightly inclined to the opinion that the loss in question might be more accurately described as arising from a peril of the ship than caused by a peril of the sea, but on consideration of the very careful and elaborate judgments in the Court of Appeal and the authorities referred to, and looking at the reason of the thing, I have come to a conclusion in accord with that announced by my noble and learned friends, adopting the reasons and the decision of Lopes L.J.The accident was fortuitous, unforeseen, and actually unknown until the ship reached her destination and commenced unloading. I do not, however, mean to suggest that to constitute a peril of the sea the accident or calamity should have been of an unforeseen character.The remote cause was in a certain sense the action of the rats on the lead pipe, but the immediate cause of the damage was the irruption of sea-water from time to time through the injured pipe caused by the rolling of the ship as she proceeded on her voyage.There having been no negligence on the part of the defendants, I am of opinion that they have brought the case within the exception, and are protected. 
Fitzgerald	Barlow v St Mary Abbotts Parish Vestry Kensington	My Lords, I have had the advantage of reading the judgment which has been delivered by the noble and learned Lord on the woolsack, and also the judgment which has been delivered by my noble and learned friend opposite (Lord Watson), and I entirely agree in the conclusions at which they have arrived and in their reasoning. I especially wish to advert to and express my agreement with the judgment of my noble and learned friend opposite, indicating that the order on which it was intended to proceed to demolish the house in question was absolutely void and valueless. I adhere to what was said and done in Spackman v. Plumstead Board of Works 10 , in which I took part.
Fitzgerald	Societe Generale de Paris v Walker	My Lords, I concur in your Lordships’ decision.The defendants have the prior equitable title in point of time, and the question is whether the appellants (plaintiffs) have established that on the facts and in law their subsequent title, if they have any, ought to be preferred.As the question relates to shares in an institution which derives its vitality from the statute of 1862, we must look to that statute and the articles of association of the company to ascertain the position of a shareholder and his powers of transfer, and the provisions made by the statute and the articles for the protection of the association. The sections of the statute have been already referred to by two of the noble Lords who have preceded me, and therefore I abstain from again referring to them. “Prim? facie title,” in sect. 31 means that the certificates shall be evidence that the title of the holder is correct until the contrary shall be made to appear. James Montgomery Walker does not appear to have been an original member of the company. He seems to have acquired his shares by transfer in 1875, and he accepted the shares “subject to the articles of association and to the regulations of the company,” one of which is specially expressed in the note indorsed on the certificate.The appellants (the plaintiffs) contended, first, that they had obtained an actual valid transfer of the legal ownership in the shares, and had therefore the legal right to be registered; and, secondly, that if their title was only equitable, that equitable title was at least equal to that of the respondents, and had obtained priority by notice to the company.The step which the plaintiffs had first to establish was that after the blank transfer had been completely filled up, James Montgomery Walker, being aware of its contents, had acknowledged it, and done some act equivalent to delivery of it as his deed. I was for some time very much struck with the consideration that on this question the letters of the 28th and 30th of December, or the inference to be deduced from them, would probably have operated by way of estoppel against James Montgomery Walker, had the litigation been with him. It seems different, however, as between the plaintiffs and the present defendants, who are pledgees of the shares for value, and whose prior title the plaintiffs seek in this litigation to displace. The onus lies on the plaintiffs to prove, as against the defendants, the due execution and delivery of the deed of transfer in a complete form as a deed. They have failed to prove, as against the defendants, that after the transfer had been filled up James Montgomery Walker ever saw it or was aware of its complete contents or of Colladon being the transferee; and Dove states that when he got the letter of the 28th of December signed by James Montgomery Walker the transfer was not produced to him. The plaintiffs have therefore failed to do that which was incumbent on them, viz. to prove as against the defendants the due execution of the transfer.We are, therefore, relieved from considering what might have been the effect of a due execution of the deed of transfer, without more, on the rights of the parties, having regard to the provision of the 26th of the articles of association, that “shares shall be transferable only by deed executed by the transferor and transferee, and duly entered in the register of transfers.”I have now to consider the first branch of the plaintiffs’ second proposition, viz., that the equities of the two parties were equal in all respects. Treating the plaintiffs’ title (if any) to be equitable only, the facts to establish it in every respect exhibit infirmity. The documents on which it is supposed to be founded are the letter of the 15th of December, 1882, and an unstamped form of a deed of transfer signed by James Montgomery Walker and called, and justly called, the blank transfer, for it was a complete blank; and the letter, though it mentions “100 Tram Unions,” fails to ear-mark or pledge any particular shares; and Dove admitted the supposed transfer to be of no value. On the 16th of December Dove knew this. Nothing appears to have been done until the 28th, when the instrument was filled up on information probably derived from the clerk of the company as to the numbers of the shares on the register in Walker’s name, and Colladon signed as transferee. Then followed the incomplete transactions of the 28th and 30th.I assume, however, for the purposes of my judgment, that the plaintiffs had obtained an equitable lien on the shares in question. On the other hand, the prior equitable title of the defendants is clear, plain, simple, and without a blot, and is accompanied by a delivery and pledge of the certificates of the shares.Now, the statute and the articles of association must be taken together. The former shews that the certificates are to be prim? facie evidence of the title to the shares; and the latter that the certificates are the only instruments and evidence of title which the member is entitled to have delivered to him. The certificate is his title deed. The 12th article provides that the share capital is issued “on such terms and conditions and in such manner as the board may think fit;” and one of those conditions is expressed to be that “no transfer of any portion of the shares represented by the certificate will be registered until the certificate has been delivered at the company’s office.”It seems to me that the parties are not in all respects in an equal position—that the defendants have the earlier pledge rendered effectual by the possession of the certificates, and that their prior and superior title has not been displaced by the evidence given by the plaintiffs. The opinion which I have thus formed renders it unnecessary for me to consider whether the notice alleged to have been given by the plaintiffs of their supposed equitable title to the company was a sufficient notice, and, if it was, whether it was inoperative to affect the position of the parties by reason of the 30th section of the statute, or the 22nd of the articles of association. I assume the notice to have been sufficient in substance, and am of opinion that it was operative for some purposes, but on the very large and important question decided by the Court of Appeal I do not feel it necessary to express any opinion. I entertain some doubt on the subject.