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at Whitsunday and Martinmas for the term preceding, under lea s with a Whitsunday entry. It was contended that the general rule of law is that rents are payable in respect of and out of cert in crops, and although the decisions, going upon the principle that what is both due and exigible must go to the executors, as being in bonis of the deceased, had made forehand rents already payable go to executors, that exception to the general rule was not meant to be extended by the Apportionment Act 1870, so as to convey to the executor part of rents which did not become payable until after the death of the proprietor. The rents claimed were not, it was said, current at the death of the proprietor, and could not accrue from day to day in the sense of the Statute. The Court held unanimously, and without difficulty, that the rents payable in the way expressed in these leases were due in respect of the occupation of the land for the term, and had no reference to any particular crop. The rents were therefore current, and fell within the provision of the Statute, which intended to simplify transactions by making everything apportionable. "Everything in the nature of income is to be considered as accruing from day to day, and, as such, apportionable. Everything of that kind growing due in the term during which a deceased party died is therefore apportionable between his heir and executor" (Per Lord President Inglis).
But while the Act is thus comprehensive in its effect, a late decision of the full Court of Appeal in Chancery shows that it would be wrong to assume that the Act is of universal application. That was in the case of Jones v. Ogle, which came originally before Lord Romilly, M. R. (see 41 L. J. 633). The material facts of that case were, that the testator, in his will made in 1865, bequeathed "the dividends and income" of his share in the Lilleshall Iron Company to James Taylor Ogle for his life, and after his death the share was to go to his daughters as tenants in common. The testator died on the 21st October 1870. The Lilleshall Iron Company was a private company, whose managers were in the habit of submitting to the members a statement of accounts generally to the end of the preceding year in January or February in each year, and of declaring a dividend such as the profits justified, payable by four instalments, and sometimes by a smaller number of instalments, spread over the year. In the February following the testator's death a dividend was declared, which the tenant for life claimed under the will. The plaintiff, the testator's legal personal representative, claimed an apportionment in respect of the profits made between the preceding declaration of dividend and the testator's death. The Master of the Rolls held that the tenant for life was entitled to the whole of the dividend, that the Apportionment Act did not apply, and that the words of the will showed an intention to bequeath specifically the whole of the dividends. The plaintiff having appealed, the judgment of the Master of the Rolls was affirmed by the Lord Chancellor (Selborne) and the Lord Justices. We have not before us the care
ful judgment of Lord Selborne; but the Law Times, while observing that his Lordship disclaimed all intention of narrowing the operation of the Act by judicial construction, deduces from his judgment the following "cautions:"
"First, that on a specific gift under a will made before the 1st August 1870-at all events, when dividends as well as corpus are specifically given-there is no apportionment as between the general estate of the testator and the legatee; for the testator must be taken to have had the then existing law in his contemplation, and his will must be construed accordingly; Secondly, that it is doubtful whether, on a specific gift in a will made since the Act, there is any apportionment between the testator's general estate and the legatee; Thirdly, that dividends or payments in the nature of income derived from a private company or partnership, are not apportionable under the Act, in cases where there is no absolute obligation on the company or partnership to declare dividends and divide profits at stated fixed periods; Fourthly, that even where there is such obligation, and in any case whatever, it is doubtful whether the Act. apportions the income of a private company or partnership.'
Our contemporary remarks further:- "That the Act takes effect retrospectively, and without regard to the date of the instrument under which title to the income or fund producing the income is made, when the death or other event operating as a cesser of the interest occurs, after the passing of the Act, was settled in the affirmative by Vice-Chancellor MALINS in Re Thacker's Trusts (Notes of the Week, January 25, 1873). The point was never really in doubt."
The Law of Railways Applicable to Scotland. With an Appendix of Annotated Statutes and Forms. By FRANCIS DEAS, M.A., LL.B., Advocate. Edinburgh Edmonston and Douglas.
ALTHOUGH various excellent English books on the law of railways are in daily use in Scotland, and are indeed indispensable guides to the construction of similar or identical statutes and principles of law, every one must have felt that no one of these works is altogether a satisfactory and safe guide to the Scotch practitioner. Notwithstanding the general similarity, there are many substantial differences in the legislation of the two countries; the technical rules of English pleading and procedure often obscure the meaning of the cases cited, as well as of the commentaries of their expositors; and even where such rules do not interpose themselves, there are
technicalities of phrase and peculiar rules of the substantive law with which few Scotch lawyers are familiar, and which, even where they do not bewilder, are to apt to mislead us. Even one so well read in English law-books as Professor George Joseph Bell, sometimes went astray in his use of English authorities. We are therefore much indebted to Mr. Deas for having undertaken to show Scotch lawyers in their own language, and with a steady reference to the necessities of their own practice, what is the law of railways as interpreted by the English Courts.
But while there is no doubt that the great bulk of certain branches of this law, apart from the Statutes, has been created by the constant labours of English Judges, there is a large number of Scotch decisions of the greatest value, "scattered," as Mr. Deas says, "over a period of thirty years, which have never been collected or digested." It would be no small service to the practising Scotch lawyer merely to have collected and digested these cases, or to have arranged them in their proper connection with the text of the Statutes, as some English writers have done for their legal brethren. But Mr. Deas has done much more than this. He modestly tells us that his first endeavour has been "to collect, digest, and arrange in a systematic and exhaustive form the whole of the decisions of the Scottish Court bearing on this branch of the law; secondly, to cull from the English authorities such of the more important decisions and dicta as seem applicable in Scottish law, or likely to throw light upon points which have not yet come before the Courts for decision."
The book has, however, been made really a systematic treatise. on the law of railways, not encumbered with irrelevant matter out of cases, not a mere collection of rubrics, or a series of references to authorities more or less relating to the propositions in the text, but yet one giving the law, where that can be done, in the authoritative words of the Judges. Mr. Deas's quotations of judicial opinions are more numerous than they are in some excellent works of the same character; but we cannot say that they are too numerous, or that they have been made in order to save himself trouble. On the contrary, anexamination of the book has convinced us that they have been made with very great care and judgment, and upon the simple principle of adopting clear judicial statements of the existing law, wherever they are in such a form that they can be conveniently fitted into the plan of the book. In many branches of the law, few such statements are to be found, but in the construction of the railway statutes of recent times there are naturally a good many of them, which Mr. Deas has, as we have said, used with much discrimination.
While doing this, he has however known when to avoid quotation; and his own faculty of statement and exposition is so excellent, that after all the only advantage of the method of quotation consists in the convenience of having the authentic words of such Judges as Lord President Inglis and Lord Deas presented to us, so that we may read as we run.
We sometimes think, as we read Mr. Deas's clear statements of decided points, that he has been too cautious in his exposition, and, by confining himself to what his authorities actually decide, has failed to satisfy the curiosity which reported cases sometimes excite in us to know the real principle on which they rest, and the ulterior results to which they lead. Undoubtedly it is the safer course for a legal writer to confine himself to what the cases actually say, and to what they clearly say, and in his statement of this, Mr. Deas is invariably exact and felicitous. But he is so successful in the expositions which he has sometimes been obliged to give of points which the cases have left a little dark, or which they have to the less careful or less skilful eye failed to place on a firm basis of legal principle, that we wish that he had oftener indulged in such discussions. Thus, in discussing the legal results of the Notice to treat, in the compulsory purchase of land for railway purposes, he is led to discuss the well-known but easily misunderstood case of Heron v. Espie, June 3rd, 1856, 18 D. 917. His treatment of the question, "Does the notice operate conversion of the property quoad succession?" will afford a fair specimen of his manner.
"In the leading case in our Courts, in which the effect of a compulsory sale as affecting succession was discussed, the whole Court were consulted, and the judgment was by a majority of one, the division being seven to six. Here the usual notice to treat was served, a bond was granted, and possession taken of the lands. The parties agreed to refer the price to arbitration, and a decreearbitral was pronounced. The conveyance was prepared and revised, but before it was signed, the owner died. The minority of the Court were of opinion that the price was heritable as a surrogatum for the land; that in the case of a voluntary sale, it was the principle of destination as implied in the acts of the seller that operated the conversion; but that in a compulsory sale, there were no termini habiles for resolving the case into one of destination, and that therefore until the owner was actually divested of the real right in the lands, no conversion could take place. But the majority held that, a completed contract of sale having been effected by what had taken place, and the subject in dispute being not the lands themselves, but the compensation price as settled by the arbiters, conversion had taken place, and that the fund was moveable. But the mere service of the notice to treat would appear to be of itself insufficient to effect conversion. Thus, where the notice was served on the curator of a lunatic, proprietor of an entailed estate, and a submission was entered into for the price between the curator and the railway company, but the submission fell, and the ward died before further steps to conclude the purchase had been taken, it was held that the price fell to be dealt with as a surrogatum for the land, and did not form part of the executry estate of the deceased.1
"Lord Ivory said: 'All the elements which occurred in the case of Heron, and which, when combined together, were held to effect a conversion from the estate in land to a sum of money, are here wanting. There was no voluntary agreement to sell, nor a statutory contract of sale. The subject in its specific measure and extent was not condescended on between the parties, and only came to be settled in the submission which expired.'
"The import of the English authorities seems to be to the same effect, viz., that neither the bare notice to treat, nor an offer to sell following upon it, will effect conversion. The terms of the purchase must have been settled either by
1 Moncrieff v. Miln, &c., 16th July 1856, 18 D. 1286, 28 Jur. 649. And see Garland v. Stewart, 12th Nov. 1841, 4 D. 1, 14 Jur. 1.
agreement, or by the machinery of the Act. The test appears to be, whether the contract is so far complete, that it could be specifically enforced independently of the Lands Clauses Act."
The note which follows contains references to the English cases, in which conversion was held to have been, and not to have been effected.
In proceeding to give a concise general account of the contents and arrangement of the book, it is proper to remark that, while it is, as we have already said, a systematic treatise on railway law, it is not altogether without the peculiar advantages of the books which follow the Statutes, and state the law in the shape of notes appended to their several clauses. For in the ample Appendix, we find not only the inevitable Statutes, but brief annotations referring us to the pages of the text where each subject is commented on, or to the clause of some other Act of Parliament repealing or modifying. The Appendix also contains an ample apparatus of Forms, as, for example, of notices, claims, petitions to the Court and to the Sheriff, proceedings in arbitration, &c.
The First Book treats of the inchoate or preliminary company before incorporation, giving sufficient information as to the organization of the company, the liabilities and powers of promoters, procedure in Parliament, and under the Railway Facilities Construction Act.
The Second Part relates to the internal organization of the Company, including the formation of the capital and the transmission of shares, the office-bearers of the company, the rights and liabilities of shareholders (including the large and important subject of liability to calls), and the powers of individual shareholders to control the company and directors.
The Third Part deals with the exercise of the compulsory, or as Mr. Clark calls them, in his learned and indispensable book on Company Law, the aggressive powers of the company, for the acquisition of land. The statement of the recent cases on this subject is very instructive.
The Fourth Part relates to the assessment, investment and application of the statutory compensation for lands so taken. The first of its chapters is original in its design and extremely useful. It is entitled "Practical Suggestions for the Guidance of the Company and the Claimant respectively;" and it was undertaken, as the author informs us in his preface, at the suggestion of the late Mr. Robert Mackay, W.S. The chapter sets forth very clearly the points to which the agents of the claimant and the company respectively must attend, the one in preparing and serving the statutory notice to treat, the other in dealing with the notice when received, and lodging in due time the proper notice of claim. The principles according to which lands and other heritable property are valued in Scotland, are also treated of in this chapter,-a branch of practice