Tag: Scotland

Ballantyne’s Trustees v Kidd: SCS 18 Feb 1898

Court of Session Inner House Second Division – A testator by his trust-disposition and settlement directed his trustees to pay the whole income of his estate to his widow, and upon her second marriage or death to hold the residue of his estate for behoof of his children till the youngest of them should reach majority, when the trustees were to divide and pay over the same equally among the children, declaring that the issue of children predeceasing the time of division should succeed to their parent’s share. By a codicil he authorised his trustees to advance to sons on their attaining majority, or to daughters on their attaining majority or being married, a sum not exceeding one sixth of the share of his estate which would ‘probably fall to each child,’ such advances to be debited to such child and deducted from his share when it fell to be paid, and further provided that any of his children being major and unmarried and not desiring to reside in family with his widow, should ‘receive the whole income from the approximate amount of their shares in proportion to the income which might be derived from’ his estate. The widow took her legal rights and so forfeited her provisions under the settlement.
Held (diss. Lord Young) (1), following Wilson’s Trustees v. Quick, February 28, 1878, 5 R. 697, that the provisions in favour of the children vested a morte testatoris; and (2), following Miller’s trustees v. Miller, December 19, 1890, 18 R. 301; Wilkie’s Trustees v. Wight’s Trustees, November 30, 1893, 21 R. 199; Greenlees’ Trustees v. Greenlees, December 4, 1894, 22 R. 136; and Stewart’s Trustees v. Stewart, December 17, 1897, 35 S.L.R. 298, that the widow’s interest being now at an end, the direction to postpone payment till the youngest child attained majority was ineffectual, as being repugnant to the children’s vested right of fee, and that consequently those of the children who had attained majority were now entitled to immediate payment of their shares. Adam’s Trustees v. Carrick, June 18, 1896, 23 R. 828, distinguished, commented on, and doubted.

Citations:

[1898] SLR 35 – 488

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 17 April 2022; Ref: scu.612165

Baberton Development Syndicate, Ltd, Petitioners: SCS 23 Feb 1898

Court of Session Inner House First Division – It is competent for the Court in pronouncing an order for the winding up of a company having its registered office in Scotland, to appoint a liquidator residing outwith its jurisdiction, but it is not the general practice to make such an appointment unless valid reasons can be shown for doing so.
Application for appointment of liquidator residing outwith jurisdiction refused.

Citations:

[1898] SLR 35 – 499

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 April 2022; Ref: scu.612164

Whitlie v James Gibb and Son: SCS 14 Jan 1898

A bankrupt, who had himself petitioned for sequestration, and made oath to a state of affairs showing that he was insolvent, brought an action of reduction of the sequestration against the concurring creditor and the trustee, on the ground that he had been induced by the fraud of his concurring creditor to apply for sequestration in the belief that he was insolvent, when in point of fact he was not. He also averred that the trustee had acted in collusion with this creditor in the conduct of the sequestration. The court dismissed the action.
Observed that a bankrupt’s remedy when he avers that there has been any irregularity in the conduct of the trustee in the course of the sequestration is to apply to the Accountant of Court, whose duty it will be to inquire into the complaint.

Judges:

Lord Low, Ordinary

Citations:

[1898] SLR 35 – 355

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 April 2022; Ref: scu.612163

Park and Others (Owners of ‘Progress’) v Duncan and Sons: SCS 19 Jan 1898

Court of Session Inner House Second Division – By a time charter-party of a steamer at a certain rate of hire per mouth, which did not amount to a demise of the vessel, it was stipulated that the owners should maintain the vessel in a thoroughly efficient state in hull and machinery for the service, and that the charterers should provide and pay for all the coals required. The charter-party contained an indemnity clause providing ‘that the captain, although appointed by the owner, shall be under the orders and directions of the charterers as regards employment, agency, or other arrangement. Bills of lading are to be signed at any rate of freight the charterers or their agents may direct if without prejudice to this charter . . the charterers hereby indemnify the owners from all consequence or liabilities that may arise from the captain doing so.’ It also contained an exceptions clause, excepting accidents of navigation although occasioned by the negligence of the master.
While under the charter-party the vessel, owing to the negligence of the master, sailed from a foreign port with an insufficient supply of coal, and had in consequence to accept salvage services for which the shipowners were found liable. The vessel at the time of her disablement had on board goods belonging to sub-charterers, for which the master had signed bills of lading containing a similar exception of liability for negligence of the master in navigating his vessel. The sub-charterers having refused to pay any part of the loss, the shipowners brought an action of relief for the part of the salvage expenses, effeiring to cargo, against the time charterers, founding (1) upon the indemnity clause, in respect that their liability arose from the captain having signed bills of lading in obedience to the instructions of the time charterers; and also (2) upon the exceptions clause in the time charter. Held ( diss. Lord Young) that as regards the duty of sailing upon the voyage in a seaworthy condition the master was the servant of the shipowners and not of the charterers, and that the former were consequently liable for the whole loss caused by his neglect of this duty, and were not entitled to relief.
Question- Whether an indemnity clause in such terms imports anything more than a right to relief in the event of bills of lading being signed for a freight or freights which would amount to less than the stipulated hire.

Judges:

Lord Low, Ordinary

Citations:

[1898] SLR 35 – 378

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 17 April 2022; Ref: scu.612160

Scottish Co-Operative Wholesale Society, Ltd v Glasgow Fleshers’ Trade Defence Association and Others: SCS 14 Jan 1898

Court of Session Outer House – If A Informs B that he will not deal with him unless he cease to deal with C, and C thereby loses the custom of B, C has no action against A, although he may, in fact, have suffered loss through his interference.
An auctioneer is entitled, on giving due notice, to refuse the bids of any individual or class of persons.
An association of the butchers in a particular locality intimated to the cattle salesmen in a particular market that they would not in future bid at the auction sales in that market unless the salesmen declined to receive bids made by the co-operative stores. In consequence the salesmen inserted a notice in their conditions of group to the effect that they would not accept bids from anyone representing the co-operative stores, and, in pursuance of such notice, refused such bids. The market in question was held on a public wharf, where anyone was entitled to transact business or to act as salesman, but it was for the time being the only place in Scotland licensed for the landing of American and Canadian cattle. The co-operative stores brought an action against the salesmen and against the butchers, concluding against the salesmen for interdict against the insertion of the condition above referred to in their articles of group, and against the butchers for damages for the loss which they alleged they had sustained through the action of these defenders in inducing the salesmen not to sell to them. Held ( per Lord Kincairney) (1) that it was competent to sue both sets of defenders in the same action; but (2) that the action was irrelevant, in respect ( a) that the salesmen were entitled to insert the conditions of sale complained of; and ( b) that the butchers were not liable for damages for inducing the salesmen to do an act in itself lawful by means which they were entitled to adopt.

Judges:

Lord Kincairney

Citations:

[1898] SLR 35 – 645

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 17 April 2022; Ref: scu.612161

Waddell and Others (Trustees for The General Property Investment Co, Ltd) v Campbell: SCS 21 Jan 1898

Court of Session Inner House First Division – A Feucontract provided that the vassal should be obliged to build tenements of a certain kind on the land feued, and that such tenements should be covered with blue Scotch slates.
In a note of suspension and interdict presented by the superior to have the vassal interdicted from covering the tenements with slates of another kind, the vassal averred that the slates he was using were better in quality and dearer in price than blue Scotch slates, and pleaded that the superior had no interest to insist in the interdict.
Held (aff. judgment of Lord Pearson) that the superior was entitled to enforce the condition as to slates in the feucontract.

Judges:

Lord Pearson, Ordinary

Citations:

[1898] SLR 35 – 351

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 17 April 2022; Ref: scu.612162