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It was accordingly ordered, &c. “ That the original appeal be dismissed, and that the Lord Ordinary's interlocutor of the 17th of March 1836, in so far as it was not recalled by the two interlocutors of the Lords of the First Division of the 30th of November 1837, or either of them, be affirmed; and that the two last-mentioned interlocutors be affirmed, with costs: and that the two cross-appeals be dismissed, with costs.”
ROBERT Hill - - - -
1840: July 23.
1841 : Oct. 6.
WILLIAM Paul, Trustee for the Cre-Respondent
ditors of the said Robert Hill
A. executed a deed, conveying and assigning his property to trus- Assignment. tees, for the benefit of creditors. The operative part of the deed
Deed. was in these words :-“ All and sundry superiorities, lands and Creditors. heritages, debts heritable and moveable, and whole goods, gear, Public Office. sums of money, and effects; and in general my whole means and estate, heritable and moveable, of whatever nature or denomination, or wherever situated, presently belonging to me.”—Held, that these words did not pass the profits of a public office at that time
filled by the grantor. Semble, that the profits of a public office cannot be assigned for
the benefit of creditors.
THIS was an appeal against two judgments, one interlocutory, pronounced by the Lord Ordinary, and the other final, by the Court of Session in Scotland. The Appellant held the patent office of Keeper of the Register of Sasines, for the shire of Renfrew and regalities of Glasgow and Paisley. He was appointed to the office in 1792, as one of the joint-keepers, the other being Mr. Frederick Fotheringham. At that time the Appellant became bound by deed to make certain payments from the profits of the office to his sisters, who were then alive. Mr. Fotheringham died in 1830, and the Appellant, who had been previously released from the other charges, then became sole patentee of the office. Having fallen into difficulties, he executed a trust-deed, appointing the Respondent trustee for the benefit of his creditors. The question in the case turned on the meaning of the conveyance in trust, the words of which were :—“All and sundry superiorities, lands and heritages, debts heritable and moveable,
and whole goods, gear, sums of money, and effects;
and at such prices, as the said trustee acting for tue time shall think fit;" with power also to sell the wood growing upon the lands, and to grant all needful deeds and dispositions. A provision was afterwards made for the case of the trustee not having “sold or disposed of the lands and others above conveyed, or such part thereof as may be necessary for the payment of my debts.”
The deed contained the following covenant for further assurance :-" And farther, I bind and oblige myself, and mine aforesaid, to grant and to execute, at any time when required, such farther deed or deeds as may be judged necessary by my said trustee or trustees, or by a majority in value of my said creditors, for the more effectually carrying the purposes of the present trust into full and complete execution.”
The cause came in the first instance before Lord Jeffrey, as Ordinary, who, after hearing counsel for the respective parties, pronounced the following interlocutor, adding an explanatory note:“10th March 1837. The Lord Ordinary having heard the counsel for the parties on the preliminary defences, repels the defence or objection to the title of the pursuer, founded on the allegation that the trust-deed in his favour did not convey any of the profits or emoluments of the office then vested in the trustee, which occurred subsequently to the date of that trust-deed: and, 2do, in respect that all the other defences pleaded as prelimi. nary, either depend on disputed matters of fact or are involved in the merits, reserves and supersedes the consideration of them till the cause comes to be discussed on the closed record : and, in respect the defenders state they do not mean to acquiesce in this judgment, finds them liable in expenses, allows
an account to be given in, and remits the same to the auditor of Court, for his taxation and report.”
To this judgment the Lord Ordinary added the following “ Note.—The question of title is not without difficulty. But the Lord Ordinary is of opinion, that the defender Hill, being at the date of the trust vested in a life office, which he executed by deputy, and which yielded large though fluctuating annual profits, is to be regarded as the owner of a life annuity, which, he apprehends, would clearly have been carried, by the general conveyance of his whole moveable property and estate of every description, to his trustee. That he was under a previous obligation to account for a part, or even the whole of these profits, to his sisters during their lives, would not bar the effect of this conveyance, as the radical right to them was still in his person, as incident to the office itself, of which he was the only holder. If such previous obligation was onerous and unchallengable, it was still but a temporary burden upon his primary right; and that being onerously conveyed to his trustee, such conveyance would take effect as soon as the burden was worked off, just as the conveyance of a fee, under the burden of a liferent, would vest the radical right in the disponee from the first, though its actual engagement must be postponed till the liferent was run out. If the whole profits were not so pledged to the sisters, or if their right was not onerous, the form of the action seems sufficient to make the defender Hill still account for them to the pursuer.”
The Lord Ordinary then adverted to matters which did not come under discussion in the appeal, and proceeded thus:-“ As to the objections raised on the terms of the Act 49 Geo. 3, c. 126, as to the sale or brokerage of offices, the Lord Ordinary is satisfied