Scottish Court of Session Decisions

This is an appeal by the trustee on the sequestrated estate of Walter Peacock, innkeeper, Lennoxtown, against a deliverance of the Sheriff-Substitute of Stirlingshire. The trustee had refused to rank a claim made on the bankrupt's estate by Miss Anne Peacock, the bankrupt's sister, for £139, os. 3d., due by him to her. The Sheriff, on appeal, remitted to the trustee to rank her claim.

The claim of Miss Peacock arose out of an agreement entered into betwixt the bankrupt and his father and mother in 1857, whereby the latter agreed to relinquish and convey their business to their son, and the former agreed, in respect thereof, inter alia, to pay to his sister Anne the sum of £100 “asa suitable consideration for her bypast services in conducting the said business,” payable at the expiry of five years, with interest. In payment of this obligation the bankrupt granted a bill to his sister on 8th July 1864. He was sequestrated on 22d August 1864.

The trustee appealed, and argued (1) that the bill was granted within sixty days of bankruptcy, and was therefore struck at by the Act 1696, c. 5, as a conveyance to a conjunct and confident person; (2) that the agreement could not be regarded, looking to its terms, as constituting an onerous obligation; and (3) that it was not sufficiently stamped.

The Court, without calling for a reply, adhered to the Sheriff's deliverance, and dismissed the appeal.

ACT OF PARLIAMENT.

An Act to amend the Law relating to Contagious or Infectious Diseases in Cattle and other Animals. [20th February 1866.]

Whereas it is expedient to amend the law relating to contagious or infectious diseases in cattle and other animals:

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. This Act shall be cited for all purposes as “The Cattle Diseases Prevention Act, 1866.”

2. This Act shall not apply to Ireland.

3. “Person” shall include a body of persons corporate or unincorporate:

“Cattle” shall mean bull, cow, ox, heifer, or calf:

“Animal” shall mean cattle as above defined, sheep, goats, and swine:

“Cattle Plague” shall mean the Rinderpest or disease commonly called the Cattle Plague

“Municipal Borough” or “Borough” shall mean any place for the time being subject to an Act passed in the Session holden in the Fifth and Sixth Years of the reign of King William the Fourth, Chapter Seventy-six, intituled “An Act to provide for the regulation of Municipal Corporations in England and Wales, which is not assessed to the county rate of any county by the justices of such county:

“County” shall not include a county of a city or county of a town, but shall include any riding, division, or parts of a county having a separate commission of the peace:

The liberty of St Albans, and the liberty of the Isle of Ely, and the soke of Peterborough, shall respectively be deemed to be separate counties, but all other liberties and franchises of counties shall be considered as forming part of the county by which they are surrounded, or if partly surrounded by two or more counties, then as forming part of that county with which they have the longest common boundary:

The Metropolis” shall include all parishes and places in which the Metropolitan Board of Works have power to levy a Main Drainage Rate:

Every place that is not, according to the foregoing definitions, a borough, a county, or a part of the metropolis, or is not separately mentioned in the Schedule hereunto annexed, shall be deemed to form part of the county, as hereinbefore defined, to the county rate of which it is assessed, or, if not so assessed, of the county within which it is situate.

4. For the purposes of this Act, “District,” “Local Authority,” “Local Rate” and “Clerk of Local Authority,” shall respectively mean the places, bodies of persons, rate, and officer in the first Schedule hereto annexed in that behalf mentioned: Provided that within the City of London and the liberties thereof the Court of the Lord Mayor and Aldermen shall, for all the purposes of this Act, except that of making a rate, be deemed the local authority, but for the purpose of making a rate for the purposes of this Act the Metropolitan Board of Works shall be the local authority.

5. As soon as conveniently may be after the passing of this Act the Commissioners of Supply in every county in Scotland shall meet and nominate not less than four or more than fifteen of their number to act on the County Board for the purposes of this Act, and shall intimate to the Lord Lieutenant of the County and the Convener of the County the number and names of the persons so appointed; and the Lord Lieutenant, shall forthwith nominate an equal number of persons being tenants of agricultural subjects, valued in the valuation roll in force for the time at one hundred pounds a year or upwards, within such county, to act on the County Board, and shall intimate the names of the persons so nominated to the Convener of the County, and the persons so nominated by the Commissioners of Supply and Lord Lieutenant respectively, and also the said Lord Lieutenant, the Convener of the County, and the Sheriff of the County, or, in his absence, any of his substitutes within such county as he may direct, shall constitute the local authority; and so far as not otherwise provided by this Act such local authority shall have all the powers conferred on the local authority by this Act, and shall have power to elect a chairman, specify a quorum, and make all regulations necessary for carrying the purposes of this Act into effect.

6. Where the General or Quarter Sessions in any county do not stand adjourned to some day not later than seven days after the passing of this Act, such sessions shall notwithstanding be deemed, by virtue of this Act, to stand adjourned to Monday in the first week succeeding the week in which this Act passes.

7. The first meeting of the local authority in Scotland shall be held on a day to be fixed and notified by the Convener of the County, and the local authority may adjourn from time to time as they may think fit.

8. Any local authority may form one or more committee or committees, consisting wholly of its own members, or partly of its own members and partly of such other persons, being rated occupiers in the district, and qualified in such other manner as the local authority may determine, and may delegate to such committee all or any powers conferred on them by this Act, excepting the power to make a rate, and may from time to time revoke or alter any power so given to such committee.

A committee may elect a chairman of their meetings. If no such chairman is elected, or if the chairman elected is not present at the time appointed for holding the same, the members present shall choose one of their number to be chairman of such meeting. A committee may meet and adjourn as they think proper. Every question at a meeting shall be determined by a majority of votes

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of the members present and voting on that question; and in case of an equal division of votes the chairman shall have a second or casting vote.

The proceedings of a committee shall not be invalidated by any vacancy or vacancies amongst its members, or, in case of a committee appointed by the general or quarter sessions of a county, by the termination of the sessions by which they were appointed: Provided always, that in the case of the formation of two or more committees, such committees shall act according to such rules as shall be laid down for their guidance by such local authority.

9. Every local authority shall with all convenient speed appoint such number of inspectors and other officers as it shall think necessary for carrying into effect the provisions of this Act within its district. It shall assign them such duties, and award them such salaries or allowances, as it thinks expedient; and no stamp shall be required on the appointment of any officer made in pursuance of this Act. It may revoke any appointment so made: Provided that all persons appointed inspectors before the passing of this Act under the authority of any order of the Lords of her Majesty's Privy Council relative to the Cattle Plague, and being such at the passing of this Act, shall be cattle inspectors to act in the execution of this Act in and for the districts for which they respectively were appointed; but any such appointment may at any time be revoked by the authority that would be empowered to revoke it if it had been made under this Act.

The certificate of an inspector of the local authority that an animal is affected by Cattle Plague shall for the purposes of this Act be conclusive evidence in all courts of justice and elsewhere of its having been so affected.

10. Any inspector or other officer authorised to carry into effect the provisions of this Act may at all times enter any field, stable, cow-shed, or other premises within his district where he has reasonable grounds for supposing that cattle affected by the Cattle Plague are to be found, for the purpose of carrying into effect the provisions of this Act; and if any person refuses admission to, or obstructs, or impedes, or aids in obstructing or impeding any such inspector or other officer, he shall for each offence be liable to a penalty not exceeding twenty pounds: Provided always, that such inspector shall, if required, state in writing the grounds on which he has entered such premises for the purpose aforesaid.

Part I.

Temporary Provisions.

11. Part I. of this Act shall continue in force till the fifteenth day of April one thousand eight hundred and sixty-six, and no longer, unless continued or renewed by order of Her Majesty in Council; and it shall be lawful for Her Majesty, by Order in Council, from time to time to continue, or to renew if expired, all or any of the provisions in this part of this Act contained for such time as is specified in such order.

Slaughter of Diseased Animals.

12. Every local authority shall cause all animals affected with the Cattle Plague within its district to be slaughtered, and shall, by way of compensation for every animal so slaughtered, pay to the owner thereof such sum not exceeding twenty pounds, and not exceeding one-half of the value of the animal immediately before it was affected with the Cattle Plague, as to such local authority may seem fit.

13. Every local authority shall cause every animal that has died of Cattle Plague or has been slaughtered in consequence of being affected with Cattle Plague within its district, to be buried as soon as possible in its skin in some proper place, and to be covered with a sufficient quantity of quicklime or other disinfectant, and with not less than six feet of earth.

14. Every local authority shall, within its district, cause the yard, shed, stable, field, or other premises in which any animal affected with Cattle Plague has been kept while affected by the disease, or has died or been slaughtered, to be thoroughly cleansed and disinfected, and all hay, straw, litter, dung, or other articles that have been used in or about any such animal to be burnt or otherwise destroyed; and no fresh animal shall be admitted into any yard, shed, stable, field, or other premises in which any animal affected with Cattle Plague has been kept while affected by the disease, or has died or been slaughtered, until the expiration of thirty days after the cleansing and disinfecting of such premises in pursuance of this Act; and every local authority shall direct the disinfecting the clothes of, and the use of due precautions by, Inspectors, Cattle Overseers, and others in contact with animals affected by the Cattle Plague, with a view to prevent the spreading of contagion.

15. A local authority may, if it thinks fit, cause to be slaughtered any animal that has been in the same shed or stable, or in the same herd or flock, or in contact with any animal affected with Cattle Plague within its district; and the owner of any animal so slaughtered may either dispose of the carcase on his own account, with a license from some officer appointed in that behalf by a local authority, or may require the local authority to dispose of the same, in which case such local authority shall pay to the owner thereof, by way of compensation, such sum, not exceeding twenty-five pounds, as may equal three-fourths of the value of the animal slaughtered: Provided always, that the Lords of Her Majesty's most Honourable Privy Council, or any two or more of them, may reserve animals (ordered to be slaughtered as aforesaid) for the purpose of experimental treatment.

16. The local authority may require the value of any animal slaughtered under this Act to be ascertained by officers of the local authority or by arbitration, and generally may impose conditions as to evidence of the slaughter and value of the animals slaughtered: Provided that no compensation shall in any case be paid in respect of any animal found affected with Cattle Plague in a market or on a highway, or in respect of any animal which has been moved or otherwise dealt with in contravention of this Act, or any order of a local authority made in pursuance thereof.

Movement of Cattle.

17. All cattle brought by sea from any place in Great Britain, or from any place out of the United Kingdom, into any town or place in Great Britain, shall be marked by clipping the hair off the end of the tail, and no such cattle shall be removed alive from such town or place except by sea.

No cattle shall be moved on any railway before the twenty-fifth day of March one thousand eight hundred and sixty-six.

Part II.

Expenses.

18. All expenses incurred by a local authority in pursuance of this Act, including any compensation payable by it in respect of animals slaughtered in pursuance of this Act, shall be defrayed out of the local rate as defined by this Act, or out of a separate rate to be levied in all respects in the same manner as the local rate, and included under the term “local rate.”

Any person who is not the owner of the premises in respect of which he is rated, under this section, to the local rate, may deduct from the growing rent due to the owner of such premises one-half of the rate payable by him for the purposes of this Act, and every owner shall allow such deduction accordingly.

“Owner” for the purposes of this section shall mean the person for the time being entitled to receive the rackrent of the premises in respect of which the rate is made on his own account, or who would be entitled to receive the same if such premises were let at a rackrent, including under the term “rackrent” any rent which is not less than two-thirds of the net annual value of the premises out of which the rent issues.

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Every local authority shall have power, notwithstanding any limit in any Act of Parliament, to levy a local rate to the amount required for the purposes of this Act, but every rate or increase of rate levied under this section shall in all precepts for the levy thereof be described as a separate rate or separate item of rate, and when collected from the individual ratepayers it shall be collected as a separate rate or specified as a separate item of rate.

19. Where, before the passing of this Act, any person has suffered so great a loss of cattle by Cattle Plague as to entitle him in the opinion of the local authority to a remission in whole or in part of any rate due from him for the purposes of this Act, such remission may be granted by the local authority.

When within the district of any local authority any sum has been raised by a voluntary rate for the purpose of paying for cattle slaughtered with a view of preventing the spread of the Cattle Plague, the local authority may, with the consent of the managers of such voluntary rate, after satisfying itself that the rate or such portion of the rate as has been expended has been duly expended for the purpose aforesaid, and having received from such managers the balance of such rate, if any, apply it to the purposes of this Act, and in such case the sums proved to the satisfaction of such local authority to have been paid by any person to such voluntary rate, and to have been duly accounted for, shall be deducted from any rate payable by such person under the provisions of this Act.

20. Where any animal has been slaughtered under the provisions of this Act, the owner of such animal shall not be entitled to recover in respect of the insurance of such animal any sum which, together with the payment he receives for such animal under the provisions of this Act, shall exceed the sum which he would otherwise have been entitled to receive in respect of such insurance.

21. The local authority in counties in Scotland shall from time to time give notice to the Commissioners of Supply of the sums necessary to be provided under the provisions of this Act by means of the local rate, and the amount so intimated shall be assessed and collected by the Commissioners of Supply according to the real rent of lands and heritages as appearing on the valuation roll in force for the year, and pay over the same to the local authority, and the local authority in burghs in Scotland shall in like manner assess and collect the amount required to be raised by local rate within such burgh, and all such assessments shall be payable by the tenant, who shall be entitled to deduct one-half thereof from the rent payable by him to the proprietor; and all the provisions in regard to the recovery of assessments in the Act twentieth and twenty-first Victoria, chapter seventy-two, intituled “An Act to render more effectual the Police in Counties and Burghs in Scotland,” shall be held to be incorporated in this Act in so far as not inconsistent with its provisions.

22. Whenever the rate levied or to be levied for the purposes of this Act exceeds the sum of sixpence in the pound, a local authority may, for the purposes of defraying any further costs, charges, and expenses under this Act. borrow and take up at interest, on the credit of the local rate, any sums of money necessary for defraying such costs, charges, and expenses; and for the purpose of securing the repayment of any sums of money so borrowed, together with such interest as aforesaid, the local authority may mortgage and assign over the said local rate for any period not exceeding seven years to the persons by or on behalf of whom such sums are advanced; and in any case where the rate levied or to be levied for meeting the charges of this Act shall exceed nine-pence in the pound, the Lords of the Treasury may, upon application from the local authority, extend the term to any term not exceeding fourteen years, and the local authority may mortgage and assign over the said rate for any term not exceeding fourteen years accordingly.

23. The clauses of the Commissioners Clauses Act 1847, with respect to mortgages to be created by the Commissioners, shall form part of and be incorporated with this Act, and any mortgagee or assignee may enforce payment of his principal and interest by appointment of a receiver. In the construction of those clauses the Commissioners shall mean “the Local Authority.”

24. The Public Works Loan Commissioners, as defined by “The Public Works Loan Act 1853,” may, out of moneys at their disposal, with the approval of the Lords Commissioners of the Treasury, advance to any local authority, upon the security of the local rate, without any further security, to be repaid, with interest, within any period as aforesaid, any sums of money to be applied by such authority in carrying into effect the purposes of this Act.

Miscellaneous.

25. Every local authority shall report to the Privy Council the state of the Cattle Plague in their district, and give such other information with respect to the Cattle Plague in such form and at such times as the Privy Council may require

26. Any local authority may purchase or hire a piece or pieces of land for the purpose of burying therein animals dying of Cattle Plague or slaughtered under this Act, and in the case of seaports, for the purpose of providing proper places for the slaughter of cattle, which, under the provisions of this Act, cannot be removed alive from such ports; and in order to facilitate any such purpose the provisions of “The Lands Clauses Consolidation Act 1845,” relating to the purchase of land by agreement, shall be incorporated with this Act.

Legal Proceedings and Saving Clauses.

27. If any person acts in contravention of any provisions in this Act contained, or any order made by a local authority in pursuance of this Act, he shall for each offence incur a penalty not exceeding twenty pounds, and where any such offence is committed with respect to more than four animals, a penalty not exceeding five pounds for each animal may be imposed instead of the penalty of twenty pounds.

28. In the event of any person refusing or delaying to comply with the order of any local authority in Scotland, the local authority may give information thereof to the procurator-fiscal of the county or burgh, who may apply to the sheriff for a warrant to carry out such order, and such warrant may be executed by the officers of court in the usual way.

29. In Scotland all the judicial powers given to justices and quarter-sessions, or to magistrates in boroughs by this Act, may also be exercised by the sheriff of the county or the sheriff-substitute.

30. Penalties under this Act, and expenses directed to be recovered in a summary manner, may be recovered before two justices in manner directed by an Act passed in the session holden in the eleventh and twelfth years of the reign of Her Majesty Queen Victoria, chapter forty-three, intituled “An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to Summary Convictions and Orders,” or any Act amending the same, and in Scotland by summary complaint before the sheriff, sheriff-substitute, or two justices, or in boroughs before the magistrates, in manner provided by the Summary Procedure Act 1864.

Any railway company or other body corporate may appear before any justice, sheriff, or sheriff-substitute by any member of their board of management, or by any officer authorised in writing under the hand of any director or manager of the company.

31. If any party feels aggrieved by the dismissal of his complaint by the justices, or by any determination or adjudication of the justices with respect to any penalty or forfeiture under this Act, the party so dissatisfied may appeal therefrom, subject to the conditions and regulations following:—

1. The appeal shall be made to some court of general or quarter sessions for the county or place in which the cause of appeal has arisen

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holden not less than fifteen days and not more than four months after the decision of the justices from which the appeal is made:

2. The appellant shall, within three days after the cause of appeal has arisen, give notice to the clerk of the petty sessional division for which the justices act whose decision is appealed from of his intention to appeal, and of the grounds thereof, and in Scotland to the clerk of the peace for the county:

3. The appellant shall, immediately after such notice, enter into a recognisance before a justice of the peace, with two sufficient sureties, conditioned personally to try such appeal, and to abide the judgment of the Court thereon, and to pay such costs as may be awarded by the Court:

4. The Court may adjourn the appeal, and may make such order thereon as they think just:

But nothing in the present section respecting appeals shall affect any enactments relative to appeals in cases of summary convictions or adjudications in the City of London or the Metropolitan Police District.

32. All orders made by the Lords of Her Majesty's Privy Council, in pursuance of the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter one hundred and seven, and all orders made and notices published by local authorities under the powers conferred on them by such orders of the Lords of Her Majesty's Privy Council, shall be deemed to have been duly made and authorised by the said Act, and shall so far as they are consistent with this Act remain in full force until they are revoked or have expired by lapse of time.

33. All expenses already incurred by any local authority as defined by the said orders of the Lords of Her Majesty's Privy Council previous to the passing of this Act, in publishing any notices or advertisements in pursuance of or under any authority derived from any order of the Lords of Her Majesty's Privy Council made in pursuance of the said Act, shall be deemed to have been duly charged on any rate out of which such expenses have been defrayed; or such expenses may be paid in like manner as expenses incurred pursuant to this Act.

34. This Act shall continue in force until the first day of June One thousand eight hundred and sixty-seven, and until the end of the then Session of Parliament, and no longer, except in so far as respects the power of levying rates for repaying any sums borrowed under the provisions of this Act: Provided that it shall be lawful for Her Majesty in Council at any time to suspend the operation of this Act as respects the slaughter of cattle.

SCHEDULE.

Districts of Local Authority.	Description of Local Authority of District set opposite its Name.	Local Rate.	Clerk of Local Authority.
England And Wales.
Counties except the Metropolis.	The Justices in General or Quarter Sessions assembled.	The County Rate, or Rate in the nature of a County Rate.	Clerk of the Peace.
The Metropolis.	The Metropolitan Board of Works.	Rate or fund applicable to the payment of the general expenses of the Board.	The Clerk of the Metropolitan Board of Works.
Boroughs.	The Mayor, Aldermen, and Burgesses acting by the Council.	The Borough Fund or Borough Rate.	Town Clerk.
District of Local Board of Oxford.	The Local Board.	Rate leviable by the Local Board.	Clerk of the Local Board.
Scotland.
Counties, including any town or place which does not return or contribute to return a member to Parliament.	The persons appointed in sec. 5 of this Act.	Rate appointed to be levied in sec. 21 of Act.	Clerk of Supply.
Burghs which return or contribute to return a member to Parliament.	The Magistrates and Town Council.	Do. do.	Town Clerk.