that it should be in the power of the trustees to make new roads, the statute had enacted that the minimum breadth of these roads should be twenty feet. At what time would it be competent to levy tolls on such new road, if it was not a condition precedent that the breadth should be twenty feet? On this point, your Lordship in the chair agrees with me in holding, that a new turnpike-road could not be made at all, except of the breadth of twenty feet. In the case of a new road, therefore, I have no doubt-and the English case is clearly in point there. But this consideration clears the case of many difficulties-such as, how you should be required to lay out the money of the trust on what is not yet a turnpike-road. Such a preparatory outlay must take place in the case of a new road. That must be made, at the cost of the trust, before anything is levied upon it. It is a condition precedent, therefore, in this sense, not that it must be done before you deal with the road at all, but before you take benefit from it as against the public. The requisite width is only a condition precedent to your taking tolls; it is not a condition precedent to your taking management. In the case of a new road, you must apply the trust funds to what is not yet a turnpike-road; and so, by parity of reasoning, in the case of a statute-labour road. This condition, precedent as to breadth of the road, does not interfere with your entering upon the management; but it interferes with your taking tolls. Suppose those statute-labour roads are twelve feet wide: Well, here is a power conferred by the act, to make, widen, &c. Now, as to the adjacent eight feet required to make out the requisite statutory breadth, the case is exactly the same as that of a new road half made, either as to length or breadth: Could tolls be levied in that case? No doubt the word 'make' is perplexing, but it is got rid of by the analogy of the new road. I assume that some money has been laid out by these trustees-indeed it must have been: Does that entitle the trustees to levy tolls? In the case of a new road, you must lay out the money, and the whole money, before you levy tolls. It must be assumed and made a turnpike within two years, and then the powers fail. If this be done within two years, the practical inconvenience to which my opinion leads would be avoided. You can't read the words, assumed and made,' as if they truly meant, made by assuming.' If my opinion were given effect to, the question of bona fide percepti et consumpti might be reserved. As to the third class of roads-those which are so by previous statutethere is nothing said by which they are taken out of the class of turnpike-roads. They are liable to be enlarged: But there would seem to be no ground to stop the levying of toll in the meantime. They are, even till this be done, turnpike-roads, aud remain so. They are not like the other two classes-coming into existence as turnpike-roads for the first time, and which must be made so before the right to levy toll begins.

The Court altered the interlocutor, refused the reasons of suspension, and assoilzied the defenders.

Lord Ordinary, Ivory-Act. Lord Advocate (Rutherfurd), Christison; Renny and Webster, W.S. Agents.—Àlt. Anderson, Mackenzie; George Wedderburn, W.S. Agent.-L. Clerk.[F.H.]

23d November 1849. FIRST DIVISION.

No. 15.-THE EDINBURGH AND GLASGOW RAILWAY COMPANY, Pursuers, v. JOHN MEEK and others, Defenders.

Jurisdiction-Process-Declarator, Competency of--Poor-Law Assessment-Railway-1. Held competent for a railway company to raise an action of declarator against all the parishes intersected by their line, for the purpose of declaring that certain modes of poor-law assessment and valuation, adopted by the parochial boards against the pursuers, were illegal, and that a certain sum, and no more, was the proper assessable value of the railway. 2. Held not necessary to bring a separate suspension or reduction of each assessment imposed on the railway by each separate parish; and that all the parishes were rightly convened in a single action. This was an action to have it found and declared that a certain mode of poor-law assessment and valuation, adopted with reference to the Edinburgh and Glasgow SCOTTISH JURIST.

Railway by the various parochial boards of the parishes. intersected by the line, was illegal, and that the value truly assessable upon the railway for the current year (1848) was £25,000; such value being distributable among the various parishes proportionably to the mileage of the railway in each parish.

The defenders pleaded, in limine, that the action was incompetent, in respect it was an attempt to fix ab ante certain matters with which the parochial boards were alone entitled to deal prima instantia-although they might be subject to review; that a separate suspension or reduction of each assessment in each parish was the proper remedy if these assessments were illegal; and farther, that the summons was incompetent, in respect it sought to convene in a single action more than six defenders totally unconnected.

The New Poor-Law Act provides, (§ 1)—

"That the words, lands and heritages, shall extend to, and include, all lands, fishings, fresh waters, ferries, quays, whart's, docks, canals, railways," &c.

The 34th section provides

"That when the parochial board of any parish or combination shall have resolved to raise, by assessment, the funds requisite, such board shall, either at the same meeting, or at an adjournment thereof, or at a meeting to be called for the purpose, resolve as to the manner in which the assessment is to be imposed; and it shall be lawful for any such board to resolve that one-half of such assessment shall be imposed upon the owners, and the other half upon the tenants or occupants, of all lands and heritages within the parish or combination, rateably, according to the annual value of such lands and heritages; or to resolve that one-half of such assessment shall be imposed upon the owners of all lands and heritages within the parish or combination, according to the annual value of such lands and heritages, and the other half upon the whole inhabitants, according to their means and substance, other than lands and heritages situated in Great Britain or Ireland; or to resolve that such assessment shall be imposed, as an equal per centage upon the annual value of all lands and heritages within the parish or combination, and upon the estimated annual income of the whole inhabitants, from means and substance, other than lands and heritages situated in Great Britain or Ireland; and when the parochial board shall have resolved on the manner in which the assessment is to be imposed, such resolution shall be forthwith reported to the board of supervision for approval; and if the manner of assessment so resolved on shall be approved of by the board of supervision, the same shall be adopted and acted upon in such parish or combination, and shall not be altered or departed from without the sanction of the board of supervision; and if the board of supervision shall disapprove of the manner of assessment so resolved upon, as aforesaid, the parochial board shall, upon such disapproval being intimated, forthwith meet and resolve upon another mode of imposing the assessment consistent with law, and shall report such resolution to the board of supervision; and the manner of imposing the assessment so resolved on shall be adopted and acted upon in such parish or combination, and shall not be altered or departed from without the sanction of the board of supervision."

The 45th section provides

"That in cases where any canal or railway shall pass through, or be situate in, more than one parish or combination, the proportion of the annual value thereof, on which such assessment shall be made for each such parish or combination, shall be according to the number of miles or distance which such canal or railway passes through, or is situated in, each parish or combination, in proportion to the whole length."

The summons set forth

"That the pursuers were and are ready and willing to pay any assessment for relief of the poor imposed in the different parishes through which the railway passes, as before mentioned, so far as the same was and is charged on them justly and equitably, and according to the provisions of the last mentioned statute: But doubt and questions have arisen concerning the VOL. XXII.-No. II.

mode of charging the assessment on the pursuers; and the parochial boards of the different parishes through which the railway passes as aforesaid, or one or other of them, have disputed the rights of the pursuers in the premises, and assessnents have been made, and are still farther threatened to be made, on the pursuers, on principles at variance with the just and legal principles, and without giving effect to the legal and just deductions, as these are set forth in the conclusions hereinafter contained: That, according to the just and legal method of computation set forth in the said conclusions, the value for the current year of the whole line of railway belonging to the pursuers, the amount of which forms the sum on which the assessment is chargeable, is £25,000 or thereby; and this sum falls to be divided between the different parishes traversed by the railway, according to the proportion which the number of miles in each parish bears to the whole length of the line; and no farther assessment is chargeable than such as may be estimated in each parish on the proportion of the said sum pertaining to each parish: And in particular, no other or farther assessment is chargeable in any of the said parishes, in respect of ground occupied by station-houses or their appurtenances, the value of which is comprehended in the value of the line of railway before set forth."

The other declaratory conclusions were as to the true assessable value of the railway, and the deductions to be made in estimating that value.

The Lord Ordinary pronounced the following interlocutor:

·-

"5th June 1849.-The Lord Ordinary having heard parties' procurators on the preliminary defences, in respect, 1st, that the railway in question runs through the various parishes libelled, and that assessments are stated to have been made in several of these parishes in an illegal manner, and contrary to the statute, and that it is expedient to have a mode of assessment and valuation fixed according to law, and that without interfering with the discretionary powers of the parochial boards, which are not challenged by the pursuers, nor the exercise thereof sought to be interfered with so far as legally within the statute; 2d, in respect that the pursuers have a legal title and interest to bring the whole defenders into the field, to have their rights ascertained, in terms of the statute 8 and 9 Vict. c. 38, libelled on, and specially of the 45th section thereof, and that there is sufficient jurisdiction in this Court to try the question of alleged illegality and contravention of the statute; and, 3d, in respect that the said question may competently be tried without a separate action of reduction of each assessment, as the same has been, or may from time to time be, imposed in each particular parish; repels the preliminary defences."

The defenders reclaimed. At advising,

Lord Justice-General.-I think the interlocutor ought to be altered. I do not think that this declarator is a proceeding which can be sanctioned. The late poor-law amendment act provides, that every parish or combination shall have a parochial board, whose proceedings shall be liable to review of the board of supervision. Before that act, we had, and have now, the power of review. But this Court never had a primary jurisdiction in the management of the poor. We have a power of review, but not of dealing with the matter in the first instance. The question before us is, whether this Court will take upon them the duty of declaring ab ante the rate of assessment exigible from this railway, from all the parishes through which the railway passes-and that £25,000 is the value in respect of which the railway is to be assessed in all time coming. But, under the act, it is the province of the parochial boards, in the first instance, first to ascertain the sums wanted, and afterwards the mode of assessment. All this they do subject to the review of the board of supervision. This Court can know nothing ab ante of the wants of any particular parish. We are not entrusted with the power of declaring which of the three modes of assessment pointed out by the statute shall be adopted. That is left to the parochial boards. No doubt, if an illegal mode of assessment be adopted, we can arrest the illegality. This Court will quash any such illegal proceeding; but will not, after doing so, proceed to fix which of the three legal modes of assessment shall be adopted. We will remit to the parish to do so.

It is true that railways are recognized by this poor-law act

in a particular section, which we are bound to see carried into execution. But whether that section shall be carried into execution, is not the question raised in this declarator. If any irregularity takes place, we shall correct it.

There are no precedents for the course we are required to follow. The only case adverted to in argument is the case of Roxburgh v. Dunbar, 9 S. D. p. 669-(reads rubric). There, the first question was, whether there was a good title to sue, and whether there were sufficient parties. The question was, whether a mode of assessment established by long usage was legal; and, if not, whether that usage prevented it from being set aside. There is another case, Boyd, 5 S. D. 413, not noticed in argument, which has some connection with the case before us. A tenant complained of an assessment as illegal. There was a reduction, and there were declaratory conclusions. Although the Court decerned in the reduction, they refused to sustain the declaratory conclusion. No doubt it is said that it was not insisted in by a party having interest. But what party had interest if those who appeared in that case had none? I cannot resist the impression, that what weighed with the Court in that case was the incompetency of this declaratory conclusion. The Court refused to declare de futuro what the rate of assessment should be. It would have been doing what we are now required to do, to fix, what it is the duty of the parochial boards to fix, the assessment necessary to meet the wants of the parish year by year. No doubt the new poor-law act provides that nothing therein contained shall prevent a party aggrieved by any proceeding of the parochial boards from obtaining his remedy from a court of law. But there is no clause giving power to this Court to declare the mode of assessment and management of the poor to be adopted in any particular parish in all time coming. We are not to prescribe how the boards are to fulfil the duties entrusted to them, though we can give redress against every illegality which they may commit in the course of performance.

Lord Fullerton.-I feel great difficulty in adopting the opinion just expressed; and I cannot help thinking, that, in dismissing this action, we should be impeaching the legality of a course of procedure sanctioned by long, and hitherto undisturbed practice. The competency of this action of declarator is disputed on two grounds.

First, it is said to be incompetent, even as directed against any one parochial board, inasmuch as the declarator raises before this Court a question of assessment of which, it is said, the parochial board is itself, in the first instance at least, the exclusive judge; and secondly, and in addition, it is maintained, that even if the action against one parochial board were competent, there is an incompetency in joining several boards as defenders in one action. The first is by far the most important point. For if the general competency of declarator against a parochial board were sustained, I rather think the parties themselves would see the manifest expediency of having the question tried in a form which admitted of the participation in the discussion of all the parties truly concerned in it.

The expediency of proceeding by way of declarator in a case of this kind, seems to me obvious enough. Nor can I conceive what interest the defenders have to object to this course. They admit that this Court has the power to determine the various questions raised here. They admit, that if the pursuers here had suspended the former assessments as illegal, on the objections which form the subject of this declarator; or if, at this moment, the pursuers were to proceed by way of reduction of those assessments, on those very grounds-there could be no objection to such procedure. If ever there was, then, an objection merely of form, it is that now taken. It comes to this "You cannot do by a declarator that which you confessedly may do by a reduction." When the substance of the thing is considered, there never was a more shadowy distinction. For, after all, what is a reduction of an assessment but the declaration of the illegality of the principles on which the assessment rested, being the very object of a declarator? And it is obvious that the latter has this manifest advantage, that while the reduction only declares negatively the particular thing challenged to be illegal, the declarator ascertains positively that which ought to have been done instead of it.

To support this formal objection, then, we must have some very clear authority; here, I can see none either in principle or practice.

When the case of the defenders is put on the general principle of the incompetency of a court of mere review entertain

ing an action declaratory of what the proper court in prima instantia ought to do in particular circumstances, I think the analogy is defective in one essential particular. The parochial board, though vested with certain statutory powers, is not, properly speaking, a court at all. It is a parliamentary board, having the power to assess and raise funds for a particular purpose the support of the poor. It is, quoad the persons assessed, and the persons who claim the benefit of the assessment, a party; and, accordingly, there is no doubt that, whether the one set of persons or the other feel aggrieved by its resolutions, the redress is obtained by proceedings directed against the parochial board itself-a situation in which a court with jurisdiction, in the proper sense of the term, never could be placed. If a suspension or reduction of an assessment actually laid on were resorted to, those steps of procedure would be directed against the parochial board. In fact, there is, and can be, no other party in such an action. For the board, in laying on the assessment, call no parties, between whom they can adjudicate, in the proper sense of the term. They form a body, who, by statute, are entitled to levy money from the ratepayers on certain principles laid down in the statute, and to distribute to persons having claims as paupers. If any one considers himself aggrieved, he proceeds against them, not as against a court who have gone wrong-which would be absurd -but as against a party who have done wrong, and who, in that character, is amenable to the proper tribunal. Now, such being the relation between the parochial board and the ratepayers, I really can see, in principle, no incompetency in the latter raising questions in the form of declarator which they might confessedly raise in the way of review. To be sure it may be inexpedient to raise questions by anticipation; and in many of the minor details of assessment and distribution the proper course would be to wait till the wrong was actually done. But if the points in dispute involve large and general principles, on which the assessment of a particular ratepayer ought to be laid on, and if the board have, on former occasions, taken what is conceived an erroneous view of those principles, I really see neither incompetency nor inexpediency in the party aggrieved resorting to the ordinary remedy of ascertaining and fixing, in the form of declarator, what those principles truly are, and how, consistently with those principles, the assessment ought to be made.

In strict legal theory, then, I see no objection to a declarator like the present; and it does not appear to me that the cases referred to on the other side give any countenance to the objection.

That of Boyd v. Shaw went clearly, not on the ground that the declaratory conclusions were incompetent, but that the mere collector of the special fund assessed was not the proper party against whom they could be directed; which is perfectly intelligible, because, unquestionably, the collector did not represent the heritors and kirk-session, except in regard to the sums actually assessed.

The other case, that of The Heritors of Zetland v. The Heritors of Orkney, was very peculiar. In truth, little else can be gathered from it but this, that the conclusions of the particular action were inadmissible. But, besides, that action was, from its nature, one which was exposed to the objection taken by Lord Gillies. It was an action brought by certain gentlemen designing themselves heritors and commissioners of supply of Zetland, against certain other individuals, described as freeholders of Orkney. It was, there, an action between private parties, calling the Court to determine in a particular way certain questions which were competent in the first instance before the commissioners of supply and the court of freeholders-constituted bodies, whose deliverances, if challenged, were challengeable, not by proceedings taken against those bodies themselves, but against the particular individual member of them by whom the claims of the parties seeking redress had been resisted. The commissioners of supply and the court of freeholders stand, as to jurisdiction, in a situation totally different from a parochial board-which, I have endeavoured to show, is in no sense of the term a court, and in every question, whether with claimants for relief or ratepayers, only a party.

Accordingly, when I look to the practice in relation to the heritors and kirk-session, the body into whose place the parochial board has now come, I find that a declarator has been invariably admitted, without objection, as an expedient and competent form of trying questions involving the principles of assessment applicable to particular cases. That of Dunbar is

no solitary instance; it was preceded, and has been followed, by many others.

Look at the proceedings in the case of Cargill, 27th Feb. 1816. The heritors there had adopted a particular rule for estimating in a particular way that part of the assessment which was to be levied from tenants and possessors. The report bears-"The legality of the rule having become the subject of discussion before the Court, their Lordships, considering that it was not sanctioned by the statutes, allowed a summons of declarator to be repeated in the process, containing the proper conclusions towards settlement of the rate of assessment on the tenants, possessors and householders, for the future."

Here, the Court evidently held, not merely that a declarator was competent, but that it was the appropriate action for determining for the future that a previous practice was incorrect.

Then there is the case of the Officers of Ordnance v. Heritors and Kirk-Session of North Leith, 14th June 1828. The latter had imposed an assessment on Leith Fort, and claimed a particular sum. The Officers of Ordnance seem neither to have suspended nor reduced the assessment; but they raised an action concluding to have it declared that the fort was not subject to poor-rates; and on that action the question was tried without objection. The form of declarator, then, adopted in the case of Dunbar, in 1833, was no novelty, but was followed by many others. The same course was taken in the case of the Bakers of Paisley against the Magistrates and Stentmasters, 6th Dec. 1836. There, the bakers maintained an exemption from assessment on certain premises belonging to them. One assessment had been levied from them; another was threatened. The Bakers' Society, as the report bears, "raised an action concluding to have it declared that no assessment could be imposed on the society as such," &c.

The question of the mode of assessment similar to that of Dunbar was tried in the form of declarator in the case of Lanark, 24th Jan. 1838. The case of Allan v. M'Craw, 15th Feb. 1839, about the competency of assessing dwelling-houses built on the lands of Hillside for the support of the poor of South Leith, was tried in a declarator brought by the collector and certain heritors of that parish.

I have no doubt that many more cases might be found; and I am disposed to think that, in the greatest number of cases involving either a departure from an old usage of assessment, or an assessment made under novel and unusual circumstances, a declarator has been generally resorted to, as affording the best means of settling the matters in dispute.

If that be so, surely the present is a very fit occasion for following the same course. The assessment on a subject of so peculiar a kind as a railway may well be supposed to raise questions which it is difficult to solve by analogies from other cases of property differently situated; and the settlement of those questions is the professed object of this action.

Holding, then, a declaratory action of this kind, directed against one parochial board, to be exposed to no valid objection, it remains to be considered, whether the case of the pursuers is made worse by having joined together various parishes as defenders; and I think that this point is attended with much less difficulty. In truth, in one, and that a most important particular, these defenders have a common interest, which would render a judgment against any one of them of no authority against the others unless they were called in the action. By the express provision of the poor-law act, the respective values of the railway in the different parishes through which it passes is to be estimated by a proportion of the value of the whole line, estimated according to the number of miles of its course through each parish; so that each parish has a manifest interest in the ascertainment of the value of the whole line, as a necessary element of the calculation of the parochial value. Now, how can that be satisfactorily and authoritatively ascertained unless all those parishes are made parties to the action? No judgment taken against one could affect the other; and it surely would be a strange course to raise twenty-three different actions of declarator, all to proceed at the same time, instead of calling them all in one, in order to have a point ascertained in which they were all interested-and that point, it will be observed, forms a most material part of the conclusions of the action. Of course, I do not go into the merits of those conclusions; but they all seem to involve matter of general principle, which it is of importance to all these defenders to have authoritatively settled. But the second is directed to the ascertainment of the value of the whole line, and the various

deductions which are to be held as affecting its amount in regard to assessment-a point which, as already observed, cannot be determined unless the whole of the parties interested are brought into Court. In short, I think it clear that the whole of these conclusions embrace matters which ought to be settled on some general and consistent principle, and which it is for the interest of the parties, defenders as well as pursuers, to have settled, in order to the guidance of their future proceedings.

Whether the competency, then, or the expediency, of this course of proceeding, by way of declarator, be considered, I think it equally unobjectionable; and I therefore think that the Lord Ordinary's interlocutor ought to be adhered to.

Lord Mackenzie.-I retain the impression I formerly entertained, that there is not sufficient ground for dismissing this action as incompetent. First, is it incompetent as to one parish? The summons is founded on a section of the act of parliament, therein quoted. There is a defect in the expression of the statute; but there is none in its meaning. It does not say how the value of the railway is to be estimated; but it is clearly implied that the railway is to be valued-just as clearly as if it had in so many words appointed valuators to do so, subject to the control of the Court. There must be, then, a fair valuation of the whole railway-though no mention is made of the mode in which this is to be done. The summons here says, that an unfair valuation has been made by these parishes, and, therefore, that the railway is overtaxed. Is that something which cannot be established by action of declarator? A wrong is complained of, for which there must be a remedy. It is said, the proper remedy is by suspension or reduction. Now, a reduction is nothing else but a declarator ex post facto. If it be competent to obtain redress by a declarator ex post facto, why not by a declarator beforehand? The ground pressed against this is, that this is a matter for the primary decision of the parochial board, subject to our review. If the board were truly vested with a primary exclusive jurisdiction, as an inferior court, to deal with this matter, subject to our review, it might be difficult to maintain the competency of a declarator so dealing with the matter ante manum. But a parochial board is not a court; it merely has an executorial power-which no doubt this Court has not. Your Lordship referred to a case of Boyd, in which there were reductive and declaratory conclusions, and in which the latter conclusions were not sustained. But this latter point was determined on a ground which does not exist here. The party had obtained his own individual redress by reduction; and, having done so, he asked for a general declarator going beyond his right. But, here, the railway ask a judgment only in reference to their own right.

It is said to be incompetent to bring in all these parishes together. I don't see the defender's interest to urge the objection. The result would be, to dismiss fifteen-sixteenths of the case, and to direct fifteen new actions to be brought. These actions would have all to be remitted to one Division ob contingentiam, for there is the clearest and closest contingency among the cases of these parishes. Take the case of two ministers claiming stipend out of the teinds of one estate. That case would be parallel to this; and, surely, the case against these two ministers could be tried together.

It cannot be said that the object of this action is to fix which of the three modes of assessment is to be adopted. It might be incompetent for us to do that. The complaint is, that the railway has been overvalued.

Lord Jeffrey.-The difficulty of this case lies in fixing the proper limits of the privilege of bringing actions of declarator. These parochial boards have peculiar initiatory, and apparently judicial functions. They have been familiarly dealt with by suspension and reduction; and, in that form, there can be no doubt that their acts are liable to review. But they have also been dealt with by advocation, a form of procedure which may seem to recognize them as proper judicial bodies; since the deliverance is either to remit to the inferior tribunal, or to advocate the cause. And if a parochial board was nothing else than a court, it is not easy to see how such a declarator as this would be competent. How the form of advocation came to be adopted in regard to them, and the meetings of heritors and kirk-sessions to which they have succeeded, it is not very easy to explain: But, in an ordinary advocation, both parties are brought up here, while the original court is not, but remains in its own cathedra, In the case of review of the decision of a parochial board, however, the court itself is brought up as a party; and as the only party: For, in the original procedure, there is no judgment

between the contending parties, by a neutral and impartial body acting as a court or judge--but an order merely by the board for the assertion of the interests with which it is entrusted. In short, the difficulty lies in the ambiguous and mixed character which a parochial board has, as a court and as a party. We must, therefore, endeavour to see which of these characters preponderates. On the whole matter, I rather agree with the views last delivered, that a board is to be taken as a corporation, an executorial body-though, no doubt, what it does as such may be reviewed. And if this be so, there is much to be said for the competency and necessity of this declarator. The other processes of review only establish that what is done is wrong; this process of declarator also establishes what is right. No doubt this process of declarator, which I look upon as a feature of our judicial system of which we may well be proud, is liable to abuse. It will not do for a party to resort to it when, after having consulted two counsel on the meaning of a deed, and they differ, he wishes to have the opinion of this Court as a third counsel. That won't do. Something which would justify suspension or reduction must precede the institution of the action. But we have that something here; for the railway complain that they have been wrongfully assessed: And it is this wrongful assessment that is the ground on which they have & persona standi in this declarator. The act plainly contemplates that these boards are parties; for it gives them the right of suing, and being sued, through certain office-bearers. The true character, then, of the body, would seem to be, that they are a statutory executorial body. On the whole, my conclusion is, that they cannot be considered as a court. And I must say, that I have felt myself much assisted in coming to a conclusion that the declarator is competent, by the cases referred to by Lord Fullerton. I therefore, on the whole, firmly concur with the Lord Ordinary.

As to the other point, what has been said by Lord Mackenzie appears to me clear and satisfactory. All these parishes are called as parties claiming arithmetical shares of an individual subject or fund. The railway is the holder of a fund, to rateable proportions of which all these parishes are, by the statute, entitled. The railway is a confessed debtor for a particular gross fund, on which all these parishes are rateable creditors; and may convene them all in a declarator-nearly as an admitted debtor calls all claimants in a multipleponding.

As to the objection, that this declarator seeks the establishment of one of the three modes of assessment which are left to the option of the parochial boards, there is a certain valuation necessary for all three. That valuation is necessary whichever mode of assessment be adopted: And there is here no attempt to bind these parishes to one of those modes. As to the £25,000 mentioned in the summons, it is qualified by the expression, less or more; and, besides, it is expressly stated to be the valuation for one year only. The merits are not here.

The Court adhered.

Lord Ordinary, Robertson.-Act. Lord Advocate (Rutherfurd), Inglis, Macfarlane; Smith and Kinnear, W.S. Agents.-Alt. Dean of Faculty (M'Neill), Penney; G. and G. Dunlop, W.S. Agents.— L. Clerk.-F.H.]

23d November 1849. FIRST DIVISION.

No. 16.-ANNE CHRISTY, (and Husband), Pursuer, v. LUCY THOMSON, (and Husband), Defender. Culpa-Trustee-Law-Agent-Circumstances in which the sole survivor of certain trustees, being the factor and law-agent for the trust, was held liable to make good a portion of the trust-funds lost by his neglect.

This was an action of count and reckoning at the instance of the pursuer, as vested in the beneficial interest in a trust made by Haldane of Kingslaw. The defender was the representative of James Thomson, W.S., who died in 1831, and who had been for several years the sole surviving trustee, as well as law-agent and factor, for the trust.

In 1826, Thomson lent £600 of the trust-funds under

his management to Alison and Ireland. In consideration of this loan, a bond and disposition in security, in which Alison was merely a personal obligant, was executed in Thomson's favour by Ireland, over two houses, one in Great Stuart Street, and the other in Glenfinlas Street-these subjects being then charged with a prior heritable debt of £3000. On this deed Thomson was infeft.

In 1828, Ireland's affairs having become embarrassed, Thomson exposed the subjects for sale under the power contained in the bond. The articles of roup contained the following condition to be implemented by the purchasers :

"And they shall be obliged, within twenty days after the sale, to grant bond with sufficient caution, to the satisfaction of the said James Thomson, for payment to him and his foresaids of the respective prices at the term, and with interest and penalty as above mentioned."

Two purchasers, Scott and Tasker, appeared and bought the properties at a price more than sufficient to cover the preferable security, the £600 debt, and the expenses of sale. Thomson did not exact security from them in terms of the above condition in the articles of roup. It turned out that Scott and Tasker merely appeared for behoof of Alison, in whose favour, more than twenty days after the sale, dispositions were executed by them. These deeds were prepared in Thomson's office; and there were professional charges in his accounts for conducting the sale. The price was never paid by Alison, who ultimately became insolvent, and executed a trust-deed for behoof of his creditors in 1837, so that the sum belonging to Haldane's trust was ultimately lost.

The question was, whether the defender, as Thomson's representative, was liable to make good the loss.

The defender pleaded, inter alia, that the loss had occurred after Thomson's death, and might have been prevented if the affairs of the trust had been judiciously managed by the parties in whose hands they were placed on the occurrence of that event.

There was also a question, whether Thomson had acted as trustee and law-agent till his death; a question of fact into the details of which it seems unnecessary to enter.

The Lord Ordinary assoilzied the defender on the following grounds:

"In order to subject Mr. Thomson's representatives, it is necessary to show, 1st. That he was guilty of some culpable misconduct, either as trustee or agent, previous to his death in 1831; 2d. That this culpable act produced the loss for which redress is sought. It would be obviously unjust to subject Mr. Thomson's representatives for anything that took place after 1831, when he died; for he cannot be liable, either as trustee or agent, for any loss that would have been prevented by ordinary good management after his death.

"The Lord Ordinary has therefore found that the present claim has not been sufficiently established against Mr. James Thomson's representatives."

The pursuer reclaimed.

Lord Justice-General.-This case, like all such cases of liability enforced against a law-agent, is a painful one. I must own, however, that, notwithstanding all the argument I have heard, I cannot arive at any other conclusion than that Thomson, till his death, acted not only as trustee, but also as agent.

Instead of relying on the security which he had obtained for the £600, he sought to recover that debt. He exposed the houses for sale. They were bought by Scott and Tasker, who turned out to be men of straw. This has been made a point in

the defender's favour, as a reason for not enforcing against these purchasers the condition in the articles of roup. But the more clearly that it was established that Tasker and Scott were men of straw, the more clearly was it the duty of the person conducting the sale to see that security was obtained for the price. Security was to be found by the purchasers within twenty days. But Thomson does not enforce this condition. Alison, who turns out to be the real purchaser, becomes bankrupt; and the question is, on whom is this loss to fall? I am sorry to say I see no ground for relieving the defender from the responsibility which attaches to Thomson. I am therefore for altering the interlocutor. Lord Mackenzie.-I am afraid I must concur. The security never seems to have been an elegible one, and, therefore, Thomson naturally looked to a sale as the means of recovering payment of the debt. The sale was made at a price large enough to cover not only the prior debt, but also this debt. The object of the sale was therefore answered if the transaction had been duly attended to. But I see nothing here but pure neglect. The subjects were purchased by the debtor himself, the other two being men of straw. There cannot be a doubt of Thomson's duty to exact security. On the purchaser's failure to comply with the articles of roup, the subjects might have been put up for sale again, and enough might have been got to pay the debt. Instead of this, the articles of roup are utterly disregarded. This may be a hard case; but not harder than many to be found on the records of this court-such as the case of Macdonald of St. Martin's, and the case of Struthers v. Lang.

Lord Fullerton.-I am of the same opinion. It is a hard case; but if we apply the same principles as those on which the Court have decided other cases of this sort, it is not a case of any difficulty.

I think we must hold that Thomson acted as agent in the trust till his death. Then the next point is-did Thomson do his duty as seller of the property. The security was certainly not desirable, as there was a prior debt of £3000. He therefore chose rather to exercise the power of sale than to suffer the investment to continue, and he accordingly sold. The purchasers were men of straw. Now it is quite clear that the seller might have insisted for security. None, however, was demanded; and Mr. Thomson never took any measures for the recovery of the price. It would have been odd had he reinvested the money on the same security with which he was dissatisfied before. I have no doubt there was a breach of duty on Mr. Thomson's part. It won't do to say, The money might have been got, but the property fell in value. He was bound to put the matter beyond all risk.

Lord Jeffrey.-I have thought this a very hard case; but I do not think the Lord Ordinary's position tenable. This is not one of those cases in which a mere technicality was omitted; but there was the breach of a plain and palpable duty. If there had been here only the neglect of a few weeks, and that Thomson had then died, there would have been some difficulty, if no tangible risk had come into existence during his lifetime, and if the loss was established to have afterwards accrued under the management of persons for whom he was not responsible. Again, if the property, instead of being worth £4000, had been worth £20,000, and had yet perished damno fatali, there might have been less ground for making him liable. But he took no steps for nearly three years, though the security was from the first precarious and scanty. Otherwise, the sale was unjustifiable. But, above all, I see no proper apology made for not demanding caution when the sale was carried through. He omitted to demand implement of the articles of roup, in which caution is expressly stipulated. In the capacity of trustee alone he was liable; for there was the omission on his part of a plain and palpable duty.

The Court pronounced the following interlocutor:"Recal the interlocutor submitted to review; and, in the process of multiplepoinding, sustain the second objection for the reclaimers to the report and state of the fund in medio lodged by the judicial factor, and find that the sum of £1068: 18s., therein referred to, and subsequent interest, ought to be placed to the debit of the late James Thomson in his factory and trustaccounts, and that the said Lucy Thomson or Davidson, as his representative, is liable therefor; and to the same effect repel the defences in the process of count and reckoning, and decern: Further, disallow all charges in the said accounts for business done in reference to the proceedings connected with the sale under the security over the subjects in Great Stuart Street and