Abbildungen der Seite
PDF
EPUB

relation, acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P. for a debt which C. considered not to be recoverable to the full amount, purchased these securities for less than their nominal amount, without notice to P., after he had ceased to be his counsel. Held, that C's purchase, while the compromise proposed by P. was feasible, was in trust for P.; and that he was entitled only to the sum he had paid, with interest according to the

course of the Court.-Carter v. Palmer, p. 657. SESSION, COURT OF. See JURISDICTION. SETTLEMENT. See Dower. DISTRIBUTIONS.

A husband, by post-nuptial contract, after granting an an

nuity to his wife, bound himself his heirs and executors, to pay her, or any person appointed by her, in writing, during her life, with or without the husband's consent, and whether she should survive or predecease him, and have issue or not, the sum of 3,0001., or other lesser sum, as she should direct, at the first term of Whitsunday or Martinmas next after the husband's death, in case he should survive or predecease her without leaving issue of the marriage, or at the first of those terms after failure of the issue, in case she should survive leaving issue of the marriage, or at any of the said terms after any of these events; so that no part of the said sum should be raised during the life of the husband, or the joint existence of the wife and the issue of the marriage : with proviso, that in case the wife should survive the husband and the issue of the marriage, and recover payment of the said sum or any part of it, her annuity should suffer restriction equal to the interest of the sum recovered. The wife survived the husband, and died without having had issue, and without recovering or disposing of any part of the

3,0001. Held by the Lords (reversing the judgment of the Court of

Session), that, in the event which happened, the 3,0001. belonged to the wife's estate, and her personal representative was entitled to it from the husband's estate.--Dill

v. Haddington, p. 168. SPECIFIC PERFORMANCE. See AGREEMENT, 2. PRACTICE, 9, 10, 11. VENDOR AND PURCHASER.

SUBSTITUTE. See Trust. JURISDICTION.
SURETY. See PRINCIPAL AND SURETY.
TONNAGE DUES.

A private Act of Parliament made for the construction of
a railway gave to W., a landed proprietor, through whose
land the railway was to pass, “ the sum of one halfpenny
per ton upon all goods and articles upon which a tonnage
duty is charged or chargeable in virtue of this Act.”
The section which empowered the railway company to
levy a tonnage duty contained this clause: “ For every
carriage conveying passengers, or goods or parcels not
exceeding 5 cwt.” a sum named. There were other
clauses fixing the duty payable for goods, but there was
no other which referred to passengers. Held, affirming
the decree of the Court of Session, that the company was
empowered to levy a tonnage duty on carriages according
to their weight, when containing passengers; and that the
sum to be paid to W. must be calculated on the tonnage

so levied.
W. had for some years received money on the tonnage levied

on goods and parcels alone. Held that this did not pre-
vent him from afterwards claiming payment on the ton-
nage duty on passengers.--Edinburgh Railway Company

v. Wauchope, p. 710.
TRUST.

1. A trust disposition and deed of settlement conveyed gene-

rally the truster's whole heritage to trustees, containing no
precept of sasine, but surrogating the trustees in place of
the truster, and binding him and his heirs to complete
titles and convey to the trustees : he reserving to himself
power to execute entails of parts of his fee-simple lands,
declaring them to be suspended during the continuance of
the trust, except as to rights of patronage; and he executed
such entails with precepts of sasine. After his death, the
trustees named in the deed having declined to accept the
trusts, the first heiress of entail made up titles, and was
duly infeft heiress of entail. Trustees afterwards appointed
by the Court, with her consent, and with all the powers
given to those who declined to act, raised an action of
constitution and declarator against the heiress of line, and

called the heiress of entail as defender.
Held by the Lords (affirming the decre of the Court of Ses-

sion), that it was not competent for the heiress of entail to oppose the completion of feudal titles, by the trustees, to the whole of the lands comprised in the trust disposition; and that they (provided they were duly appointed) were entitled to a conveyance of the whole lands, according to the intent of the trust disposition, but without prejudice to the rights of any party to the lands.--Preston v.

Melville, p. 16. Estates in Scotland were conveyed by trust disposition to

three trustees, to collect and apply the rents as therein mentioned, with 100 l. a year for their trouble, besides all the necessary expenses of managing the estates ; and with power to appoint and remove factors, pay their salaries, and settle their accounts annually; and, within six months after clearance with the factors, to get their own accounts approved by an accountant, whose approbation would be a discharge to them; each being liable only for his own actual intromissions, and no farther liable for the factors than that they should be reputed responsible at the time of their appointment. The trustees appointed one of themselves to be factor, with a salary; and he, though of undoubted responsibility at that time, afterwards fell to owe large balances, at the annual settlements of accounts ; whereon one of the trustees, who was cashier, urged him to pay up; but the balances against him increasing, both trustees, after failing in their exertions to obtain payment, revoked his appointment as factor, and he became bank

rupt, owing a large debt to the trust-estate. Held by the Lords (affirming decrees of the Court of Session

in Scotland, in an action raised by the first heir of entail, to whom the trustees were bound to account for their management):

Ist, That the appointment of one of the trustees to be factor was not of itself such a breach of trust as subjected the other trustees to all the consequences resulting from it.

2dly, That there was not such gross negligence, in the two trustees permitting the factor to retain balances, as to subject them to liability for the ultimate balance due from

him to the trust-estate. The appointment, by trustees, of one of their number to be

factor to the trust-estates, would not of itself make them liable for his defaults ; but by so making him their

agent they would be liable for his defaults as agent, and not as co-trustee, in the same way that they would be liable for the defaults of any other person whom they might appoint to the office. The principle of the rule is

the same in Scotland as in England. The mere fact of trustees allowing balances to remain against

their factor at the annual settlement of his accounts, where it is impossible to include his whole receipts and payments for the year, is not a breach of trust, or such culpable negligence as would make them liable for the ultimate balances due from him to the trust: Secus, if they assented to his contrivances to retain larger balances than were

necessary for the management of the trust. A trustee does not, by being cashier to the trust-estate, incur

any additional liability in respect of its management

beyond what he was subject to as trustee. The rule of the Courts in England, preventing trustees from

having any office with profit under the trust, or any remuneration for their trouble, beyond what the trust-deed allows them, is so beneficial, that a different rule ought not to be sanctioned in Scotland. (Quære, whether the contrary practice there is not assumed, rather than decided, to be legal).- Home v. Pringle, p. 264. 2. N. A. made a will, with certain trusts relating to his real

and personal estate, and appointed trustees to carry them into execution. One of these trusts was for the payment of provisions of 2,500 1. for the younger children, and of 5001. for the eldest daughter, R. A. B. was one of the executors and trustees under the will. An Act of Parliament was obtained to carry some of the trusts of this will into execution; and under this Act, lands devised by N. A. were sold. The trustee under the Act was W.L. On a bill filed against him by the legatee of the 2,500 l., he sought to take advantage of the payment by him of that sum to R. A. B. Held, that R. A. B.'s receipt was no discharge of W. Li's liability, as by the terms of the Act he was absolutely bound to pay the debts and discharge the children's portions; and it was not set up in the answer, nor proved, that R. A. B. had specifically received this money as trustee for his daughter.- Lawrence v. Blake, p. 504.

VENDOR AND PURCHASER. See SPECIFIC PERFORMANCE.

1. Trustees for sale of a manor described it in advertise-
ments, and particulars and conditions of sale, as a manor
in which the fines were arbitrary; adding that the clear
profits, on an average of the last eight years, had been
150l. a year; and it was one of the conditions of sale, that
if there should be any error or misstatement in the par-
ticulars, the vendors, or purchaser, as the case might
happen, should pay or allow a proportionate value, accord-
ing to the average of the whole purchase money, as a
compensation either way. After the sale it was found that
by the custom of the manor arbitrary fines were payable
only in alienation, and that on the death of the tenant, his
customary heir paid upon admittance a small fixed sum,
and the widow was admitted to her free-bench without any
payment. It was also found that the clear profits ex-
ceeded 2001. a year. Held (reversing a decree made on
a bill which was filed by the purchaser for specific per-
formance, with compensation in respect of the misstate-
ment as to the fines), that there was no such misdescription
of the property as would entitle the purchaser to com-
pensation, inasmuch as the annual profits, which constituted
the substantial value, far exceeded the amount stated.-
White v. Cuddon, p. 766.
Semble, that if there was a substantial misdescription, a Court

of Equity would not enforce against trustees specific per-
formance with compensation, as being prejudicial to the ces-

tui qui trust, and incapable of being ascertained.—Id. ibid.
The vendor and purchaser consenting to a specific perform-

ance, without compensation, the decree was accordingly so

varied, the purchaser paying the costs of the suit.-Id. ibid.
WAIVER OF RIGHT.

W. had for some years received money on the tonnage levied

on goods and parcels alone. Held, that this did not
prevent him from afterwards claiming payment on the
tonnage duty on passengers.-Edinburgh Railway Com-
pany v. Wauchope, p. 710.

END OF VOL. VIII.

« ZurückWeiter »