for the recovery of documents, the defender would have asked if she had any acknowledgment of payment in her possession; she must have answered that she had, and have produced this. Could she then have qualified her production of it by the statement, that the payments were not on the bond? If the document had contained a notice that the payments were on the bond, she could not have contradicted that by her declaration. Now, it does not bear any such notification; but, on the other hand, it does bear sufficient evidence that these payments are to be imputed to the bond. The presumption is, that these payments are to be imputed to the bond; the effect of any other view would be to revive the bills. The bond was due, but the bills were prescribed. I think, then, that this document, as it stands, bears reasonable evidence that it is a document constituted by the pursuer herself, at least by her daughter for her, and that these payments were on the bond. No doubt there is the judicial declaration of the pursuer; but we are not to take a declaration here as in the Court of Justiciary. However, I do not enter farther into that matter, for I think, generally, that the pursuer is not entitled, by her declaration, to qualify this document.

Lord Fullerton.-I am of the same opinion as the Lord Ordinary, who seems to take this as a case of indefinite payment. His Lordship quite admits the doctrine as to admissions pressed by the pursuer; but then he goes on to say, that if, in this case, the receipt of money be proved by the writ, it must be put to account of the bond. Now, I don't understand that the pursuer denies that statement of the Lord Ordinary; but the point maintained for her is, that, here, there is no evidence whatever independent of her admission; and the question is just, whether this document is to be taken at all, unless coupled with her admission. Now I cannot hold that this document is to have no independent effect. No doubt it is produced by the pursuer herself; and if it had been a document of such a kind that she could not have been called on to produce it, there might have been a good deal in that argument. But, here, if the document had been demanded under a diligence, I think it must have been produced valeat quantum. Then these entries are made by the pursuer's daughter; but, in the circumstances, are they not just as good as if they had been in her own handwriting. The payments are undoubtedly indefinite. There is no averment in her declaration that the book was kept for entering payments only on the bills. But I don't go into that point. I think the pursuer was bound to produce this book; and if it had been produced under a diligence, we must have held it to be her book. The question, therefore, just comes to the point on which the Lord Ordinary has put it. The whole case turns on this, whether that book or jotting is to be held as evidence independent of the admission;-and on that point I agree with the Lord Ordinary.

It

Lord Jeffrey.-There is no doubt considerable nicety in the point before us; but, tota re perspecta, I agree with the opinions given. The question is just where it has been put by your Lordships. No doubt this book was voluntarily produced; and the question is, whether, being so, it is available against the party producing it. Some of the difficulty, I think, has arisen from assuming that this document must either be taken as conclusive evidence of an indefinite payment, or held of no effect whatever on the facts of the case. I cannot admit the latter view. I think it would be contrary to all practice, and legal principle, and common sense. At the very least, I think it is an article or adminicle of proof, and a document to be taken into consideration in considering the complex effect and amount of the whole evidence, written and circumstantial, in the cause. seems to me quite plain, without going into the grounds of that opinion, that this document, though voluntarily produced, is just as available as if it had been recovered under a diligence; and also, that it is quite as good as if it had been in the handwriting of the pursuer herself. That being the case, can we disregard it in toto? It is in itself a very questionable document, no doubt; not like a regular banker's book, or the methodical ledger of a merchant. But supposing it to have been in the party's own handwriting, and laying aside the question of stamp, the question would be, can she add any qualification to its natural and plain import, by her own declaration? I think she cannot. I think Lord Mackenzie has put the case very strongly, by supposing that the document had distinctly expressed that these payments were made to account of a particular debt, and then that the party had attempted, by her declaration, to alter or correct that statement, and to say that they were on account, not of

that debt, but of another. Could that have been admitted? I should think not. But the objection, I think, is quite as strong against allowing such a declaration to change the document from the voucher of an indefinite payment to that of an appropriate one, as to change it from one specific debt to another. Holding it to be truly indefinite, its application is legally in the election of the creditor;-and this alone should settle the question. But I am willing to look at all the circumstances of the case; and they seem to me all to concur in connecting these payments with the interest due on the bond.

Now, what are these circumstances? First, there is the remarkable correspondency in amount of the first payments, after the interval from 1830 to 1837. Then there is this series of payments always made at periods when this interest was payable. Can we shut our eyes to these circumstances? Then the bills are extinct, while the bond is not so; and there is no proof that Mrs. Robertson was aware of the existence of any such bills. Then we have this remarkable circumstance, that if there had been a consent of parties to revive the bills, that should not have been mentioned. The payment was sufficiently vouched; but why was not this quality adjected to the vouchers? Looking, therefore, to the whole circumstances, this qualification in the declaration of the pursuer seems to me a mere gratis dictum, contrary to the whole presumption arising from the times and amounts of the payments. On looking to the jotting, we see that in the great number of instances the sums credited corresponded with those due under the bond. No doubt a larger sum is once credited-and that raises a difficulty; but then, on the other hand, it appears that for some time there had been an intermission of payments before the jotting begins; there were some years' interest due; and, in the meantime, till the amount thereof is ascertained, she takes the first half-year's payment; and then the next payment is this sum of £72, which is plainly referable to that accumulated arrear. Taking, then, the whole circumstances into view, what will a court of law do in clearing such an account as this? There is the one debt extinct, and the other subsisting; and payments made which correspond to the interest on the latter. The presumption surely is, that the payments were made to account of that interest. I do not think that the pursuer's declaration can be admitted to qualify the naked words of her writ, and am therefore for adhering.

Lord Justice-General.—I agree in thinking that this case involves one point of nicety and difficulty; and I should wish my opinion not to be taken as trenching on the general rule, that a qualified admission must be taken as a whole. On that point I think all of us agree. I may add, that I think some of the proceedings in this case have been somewhat irregular. For I do not see that there was any room for the oath of calumny; and, again, when we formerly remitted the case, to take the pursuer's declaration, we thought the matter would be settled in another way. But we have nothing to do with that now, because the question then rested on another pass-book, which was rejected as requiring stamp. The case is now to be taken on the whole circumstances before us. I had for sometime considerable difficulty as to whether we could take this document without the qualification made in the pursuer's oath of calumny and declaration. But I have come to the conclusion, that we can only look to this as part of the proof in the case, and that it is not to be taken as the whole evidence; there is nothing to tie us down to it alone. No doubt the book was voluntarily produced, but it could have been called for under a diligence; and all the opinions given are to the effect that, in that case, it could not have been qualified. Now, I think we are bound to look at all the other circumstances of the case; and the points mentioned by Lord Jeffrey are of great importance. This book is kept by the daughter for the mother as a record of the payments made by Mrs. Robertson. But there is no explanation how these payments, made at times which exactly correspond with the termly payments due under the bond, come to be paid towards the bills. One of these bills, no doubt, was not prescribed, but the others were; and there is no marking of these payments on the back of the bills, though, at the commencement, there is such a marking on the back of one. That affords a very strong presumption that, by the consent of all concerned, these payments were allowed to drop. But to decide in favour of the pursuer now, would just be to revive these bills against this family, though they were prescribed before Mrs. Robertson died. Indeed, I see no evidence that Mrs. Robertson was ever aware of the existence of the bills. She denies it; and it is,

I think, an important circumstance, that when, after her husband's death, she granted the loan of £500 to the pursuer's sons, no notice whatever seems to have been taken of any sums as due on the bond or bills. Now, it is on a view of all these circumstances that we are to consider if the interest now claimed is due; and, on the whole, looking to the pursuer's declaration, and all the circumstances, I am disposed to agree with the Lord Ordinary.

The Court pronounced as follows:

"Find that the payments, amounting to £222, credited in the pass-book produced by the pursuer Mrs. Couper, must, in the circumstances of the case, be imputed to the interest of the bond, and not to the bills referred to; and remit to the Lord Ordinary to proceed accordingly; and grant authority to his Lordship to dispose of all questions of expenses."

Lord Ordinary, Robertson.-Act. Lord Advocate (Rutherfurd), Buchanan; John Cullen, W.S. Agent.-Alt. Dean of Faculty (M'Neill), Inglis; J. F. Wilkie, S.S.C. Agent.-L. Clerk.[W.G.T.]

28th November 1849.

SECOND DIVISION.

No. 27.-ANDREW MALLOCH, Pursuer and Advocator, V. THOMAS HODGHTON, Defender and Respondent. Agreement-Contract-Construction- A glazier received an order to glaze window-sashes before the duty on glass was taken off. It was admitted that the rate of payment in view of the contracting parties was the market rate. While the window-sashes were in the glazier's hands, the duty was abolished, and a drawback allowed upon unused stock on hand. The glazier refrained from glazing the window-sashes till he had received payment of the drawbuck on the glass employed by him for that purpose. Held that he was entitled to charge his employer according to the market rate at the time of contracting, without allowing any deduction on account of the drawback; and that the exact time when the glass was put into the sashes was immaterial to the question at issue.

This was an action to recover payment for materials furnished, and work done, in glazing window-sashes belonging to the defender.

The window-sashes were put into the pursuer's hands in February 1845, as part of a general course of employment, in which the admitted understanding of parties was, that orders were to be charged at the market rate. The intention of the government to take off the duty on glass was intimated on 14th February; but, until March following, it was not known that the repeal of the duties was to be accompanied by a drawback on all stock in hand not used at the date when the act came into operation, viz. 5th April 1845.

The window-sashes were, subsequently to that date, filled up with glass on which the pursuer had obtained the drawback, the effect of which was to reduce the market rate for glazing such sashes from 1s. to 7d. or 74d. The sashes were re-delivered to the defender in May following.

The defender acknowledged his liability to pay at the reduced rate, but denied that he was bound by the market rate as it stood at the date when the sashes were delivered by him to be glazed.

A proof was taken on the question, whether, by the practice of trade, the market rate at the time of making the bargain, or at the time of execution, was the rate governing the contract.

The Sheriff-substitute (Skene) pronounced the folfowing interlocutor:

"Finds it proved that the whole of the sashes in question were already in the pursuer's hands, for the purpose of being glazed, SCOTTISH JURIST.

previous to the repeal of the duty on glass; and finds sufficient evidence that the general rule of the trade between builders and glaziers is for the latter to charge the current price at the time when the sashes are given in to them to be glazed, not the current prices at the time the work was completed: Therefore, finds the defender liable to the pursuer in payment of the account libelled on."

On appeal, the Sheriff (Alison) pronounced the following interlocutor:

"Finds that, in the peculiar circumstances of this particular case, the defender is entitled to have the glass charged against him as at the price it bore when the same was put by the pursuer into the frames, and not that which it bore at the time when the frames were sent to him to be glazed, in respect the price was fixed when they were so sent, and the work was not done by the pursuer till after the duty on glass had been taken off, whereby he has been lucratus by the whole amount of its reduc'tion."

The pursuer having advocated, the Lord Ordinary pronounced the following interlocutor:

"22d May 1849.-The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the closed record and process, finds it proved that the respondent had been in the custom of employing the complainer to do glazing and other work for him, the glass required being furnished by the latter; that there was a running account between the parties; that a number of sashes and frames of different kinds had been sent by the respondent to the complainer, in the early part of the year 1845, to be so glazed by him; that they were sent in the usual way from time to time as the wood-work was ready, and the respondent saw cause to put them into the hands of the complainer for said purpose; and that the whole of the sashesthe rate of charge or price demanded for the glazing of which is in dispute-were in the hands of the complainer, for glazing, early in February 1845, or before the end of that month; but that the said sashes were not glazed till the end of April, or beginning of May 1845, and were only delivered to the respondent in the said month of May: Finds, that while it is, on the one hand, admitted by the complainer that no precise price for glazing was openly and expressly stipulated by special covenant, when each sash or parcel of sashes was delivered to him by the respondent, it is, on the other hand, admitted by the respondent that it was the understanding that the orders given by him were to be charged at the market rate: Finds, in point of law, that, in the above circumstances, and even independent of the respondent's foresaid admission, the current market price for the necessary quantity of glass, and for glazing such sashes as the respondent was employed by the complainer to glaze, is to be held as the implied price agreed on by the parties; and that the said current market price, so implied as that to be charged, is the market price current at the dates at which the orders were given-that is, the dates at which the sashes were delivered to be glazed, and not the market price at the dates at which, after being glazed, the sashes were returned to the respondent: Finds that the above finding in point of law is supported by the proof, so far as the proof goes in reference to practice in the ordinary case, and that, at all events, there is nothing in the proof by which it could be controlled; and finds that, in the ordinary case, and supposing a fluctuation to have taken place in the current market price between the date of the giving the order and its execution, whether of rise or fall, and the glazing work not to have been done till after the change in the market price, the price that would have been chargeable by the complainer was the market price of the day when the sashes (the charge for the glazing of which is in dispute) were sent to him by the respondent, the same being the price actually demanded by the complainer Finds that, after the sashes were delivered to the complainer as aforesaid, the duties on glass were reduced: Finds that the intention of the government to take off to a certain extent the said duties, was announced on or about the 14th February 1845, but that the intention to accompany this diminution of the duties with a drawback on stock in hand, and unused at the date when the act to be passed should become law or take effect, was not intimated till the middle of March, and that, by the act which was passed, the remission of duties took effect as at the 5th April 1845; and that upon all stock on hand at that date, and not used, a drawback was allowed: Finds it proved VOL. XXII.-No. III.

that the complainer got the drawback on his stock of glass on hand on the 5th April 1845; that he delayed glazing the said sashes, in order to have the advantage of said draw back; and that, accordingly, the said sashes were glazed with glass on which the drawback was obtained, or glass purchased at the reduced price, caused by the diminution of the duty; and finds that, in consequence of the said diminution, the market price for glazing such sashes as those in question fell from one shilling to sevenpence or sevenpence halfpenny the square foot: Finds that the said reduction of duty on glass, and the manner and date at which the said sashes were glazed as aforesaid, constitutes no specialty which in law entitles the respondent to insist that any different rule should be applied in the present case from that which would govern in the ordinary one, as said is, in respect-1st. That there is no principle to warrant such a distinction whenever the duties on any commodity to be supplied have been reduced (and that even to a considerable extent) between the date of the order for it, and the execution of the order; 2d. That, in the present instance, although it is proved that the complainer delayed the glazing the sashes-that is, the execution of the order given him-with the view of taking advantage of the reduction by availing himself of the drawback on his stock in hand which was to be used in glazing them, and did get the advantage thereof accordingly, that circumstance is not sufficient to bar his right to charge at the current market price of the day when the sashes were sent to him, seeing that it is not proved that any time had been fixed for the execution of the work, or that any delay which took place was complained of by the respondent, or that it was the subject of arrangement between the parties, or that the complainer was not ready, and did not continue to hold himself bound, to have done the work immediately upon being required to complete it, so that there was no change whatever made upon the contract of parties as originally entered into; 3d. That assuming (but not admitting) the averment as to the practice consequent on the taking off of the duties to be relevant, there is no proof of any such practice in the trade, of charging in the circumstances only at the rate to which the market price of glass was reduced by the diminution of the duties, as could deprive the complainer of the right he would independently have had to charge at the market price as it stood before the fall-the proof, even to the limited amount to which it does instruct the reduced rate to have been charged, not establishing that this arose from any understood or acknowledged right in the debtor or purchaser to refuse to pay more, but rather establishing that it was a concession voluntarily made by the creditor or seller: Therefore, advocates the cause; recals the interlocutors complained of; and finds the respondent liable to the complainer in payment of the account libelled on, amounting, after deduction of the sum of £30 paid under interlocutor of the Sheriff of 11th February 1846, to £40; 2: 5, with interest as libelled; and decerns; and finds the complainer entitled to expenses both in the Inferior Court and in this Court; and remits the accounts thereof, when lodged, to the auditor to tax and report.

"Note. The findings of the interlocutor sufficiently explain the grounds on which it has been pronounced. In the view taken by the Lord Ordinary, the complainer, in proposing, as he did, to settle the difference between him and the respondent by dividing the sum in dispute, gave up a part of that which, in law, he was entitled to demand. The concession might not be so liberal as that made by others in the trade; but still, in offering it, he was truly acting on the same principle as they appear to have done, although he did not carry it so far. This, however, was not satisfactory to the respondent; and it was not unnatural that he should be disappointed in not getting a deduction equally great with that which some other parties at least had obtained. But he was wrong (so the Lord Ordinary thinks) in holding that he had a legal right to enforce any deduction, and, therefore, had no ground for instantly spurning (as he states he did) at the mode of settlement proposed by the complainer. And, in truth, there seems to have been all the less cause for the course he adopted, seeing that he himself was to sustain no loss by the respondent's rate of charge, inasmuch as he was to be paid by the party to whom he was supplying the glazed sashes at the very same rate, and was paid at that rate accordingly. Thus, in reality, the question, as with the complainer, was, who was to have the entire extra profit on the glazing arising from the reduction of duty; and that being substantially the contention, the proposition of the complainer does not admit of being considered so utterly unreasonable, even in a merely equitable

view, as the respondent would desire to represent it. Apart from the law of the case-which the Lord Ordinary is of opinion is with the complainer-it is not very apparent upon what ground, even as a mere question of fairness, the whole extra profit should belong to the respondent more than to the complainer."

The pursuer reclaimed. At advising,

Lord Justice-Clerk.-I am not prepared to say that I adopt all the principles in the interlocutor. But I do not think it necessary to consider the general law as to the effect of taking off the duty on articles of this sort between the date of the contract and the date of its fulfilment. Intimation was given that the duty was to be lowered. It was not stated when the drawback was to be paid. Here, the window-sashes are sent to be glazed, but nothing is said as to when they were to be finished: That is the important point. Not a word passes between the employer and the glazier between 24th February, and 1st May, when delivery commences. At the time the sashes were sent to be glazed, the duty was unaltered. It is said that the employer was entitled to inquire into what was done, and to say that the glazier was entitled only to charge the glass minus the duty. He did not desire the glazier to proceed or to delay. The latter received back the windows, and did not then intimate that they had been sent back too late. There was no demand made upon him to return them sooner. In my view, it does not matter whether the windows were glazed before or after the drawback took place. I think the employer was not entitled to inquire at what time the glass was put in by the glazier. He gave his order on 24th February, and received the sashes duly glazed in implement of that order. The price on 24th February must therefore be the rule. I consider this as a special case, and not as fixing any general rule.

As

Lord Medwyn.-This is a nice case; but I see no reason for altering the interlocutor. The sashes were put into the advocator's hands before the reduction of the duty took place. no specific price was then fixed, I hold that the true rate was the market rate of the day; so that what is due is the market rate, as it paid at that time. If the rate was afterwards raised, the difference was to the glazier's loss; if it fell, no matter from what cause, the difference was to the glazier's gain. It is irrelevant to inquire at what particular point of time the sashes were put in. The glazier had no occasion to do anything till called for his work.

Lord Moncreiff-I concur in the result of your Lordship's opinion; and also in thinking, that this is to be treated as a special case. We do not decide this as a general rule for other cases. It is quite sufficient to decide in favour of the substance of the interlocutor.

Lord Cockburn.-I agree with the Lord Ordinary both in his principles and his results.

The rule of law seems clear enough. The question is, what rate is to be taken. I agree with the Lord Ordinary in holding, that the rate existing at the time when the sashes were put into the glazier's hands is the rate to be taken. When the parties make their bargain, the price is at a certain rate. It afterwards happens to fall-no matter from what reason-and, therefore, the employer wishes not the time of employment, but the time of performance, to be looked to in order to fix the rate. I hold that he is not entitled to this, and that to take any other rate than the rate at the time of the contract, would open the door to this -that there would be as many constructive agreements as rises or falls in the price. True, the price was here fixed by the presumption of law. But there is no more room for variation of a price fixed by the presumption of law, than of a price fixed by special agreement.

The Court pronounced the following interlocutor:"Recal the findings of the Lord Ordinary; but, of new, find it proved that the respondent had been in the custom of employing the complainer to do glazing for him, the glass required being furnished by the latter: That there was a running account between the parties: Find that the respondent charged from time to time a rate of charge for glazing according to the prices at the time when the different sets of sashes were respectively delivered to him: Find that the whole of the sashes, the rate of charge demanded for the glazing of which is in dispute, were sent to the complainer for glazing early in February 1845, or before the end of that month: Find that it is, on the one hand, admitted by the complainer that no precise price for glazing

was expressly stipulated by special agreement, when each sash or parcel of sashes was delivered to him by the respondent; and that it is, on the other hand, admitted by the respondent, that it was the understanding that the orders given by him were to be charged at the market rate: Find that the sashes were received by the respondent at the time when they were returned as glazed, were finished in due execution of the complainer's undertaking, and without any complaint that the order had not been timeously fulfilled: Find that, although notice of an intention to reduce the duty on glass had been given, and a drawback on the stock in hand been granted, yet that the respondent gave no notice to the complainer that he was not to glaze the sashes which had been sent to him, until after the drawback took effect, and made no communication of any kind as to the reduction of duty: Therefore, find, in point of law, that the exact time when, in point of fact, the glass was actually put into the sashes, is immaterial, in the circumstances, to the contract for glazing the same; and that the complainer was entitled to charge at the cost of glass at the date when the same were sent to him: Of new, advocate the cause, recal the interlocutors complained of, and find the respondent liable to the complainer in payment of the account libelled on, amounting, after deduction of £30, paid under interlocutor of the Sheriff of 11th February 1846, to £40:2:55, with interest as libelled; and decern: And find the complainer entitled to expenses, both in the Inferior Court and in this Court; allow an account," &c. Lord Ordinary, Wood.-Act. Lord Advocate (Rutherfurd), Deas; W. Hunt, W.S. Agent.-Alt. Dean of Faculty (M-Neill), Horn; John Ronald, S.S.C. Agent.-T. Clerk.-F.H.}

29th November 1849.

FIRST DIVISION.

No. 28.-EXECUTORS of MRS. AGNES BARCLAY or BELL, Raisers and Claimants, v. MISSES ANNE and MARY MURRAY, Claimants.

Executor Statute 1617, c. 14-The statute 1617, c. 14, is not in desuetude, and executors are entitled to one-third of the free executry, deducting therefrom their respective legacies.

See ante, vol. xxi. p. 241.

The raisers, who are the surviving and accepting executors of the late Mrs. Bell, raised the present action of multiplepoinding for the purpose of distributing her estate.

Mrs. Bell left several writings of a testamentary nature, of which, by the decision referred to in the previous report, the last three were found to be the writings regulating her succession. Of these three the first was immaterial to the present question. The second was a deed of settlement, dated 3d May 1845, leaving various legacies; and concluding―

"And I reserve full power to myself, at any time in my life, to revoke or alter these presents, in whole or in part, as I shall think proper; and also full power to me hereafter to name residuary legatees, and to appoint executors for carrying my will into execution."

Mrs. Bell's last deed was an appointment of executors, holograph of her, without date, and ran as follows:

"I do hereby add this codicil to my will, and do hereby nominate and appoint the following executors-Major-General Murray, of the Honourable East India Company Service; Major-General Thomas Murray, of the Honourable East India Service; the Rev. Dr. Grant, minister of St. Mary's Church, Edinburgh; Miss Emilay and Miss Kathern Wilkie, daughters of the late James Wilkie, Esq. of Rathy Biers, when alive resided in Haddington; Miss Emilie and Miss Kather Wilkie, resid in Haddington; Fiel. General Thomas Murray, then his brother, then General Andrew Murray in his place; to each of the executors I leave two hundred pound sterlin; the money or the stock is only to be transferred into the name of the leg

After satisfying all the deceased's debts, and the lega

cies left under these deeds, there remained a considerable residue of executry, in regard to which the present competition arose. The raisers, as Mrs. Bell's executors, claimed one-third of the free executry, imputing thereto their legacies respectively, in terms of the act 1617, c. 14. The Misses Murray, on the other hand, as Mrs. Bell's nearest of kin, pleaded that that act was in desuetude, and claimed to be preferred to the whole residue, under deduction of expenses, and the legacies to each of the executors. The act referred to is as follows:

:

"Our sovereign Lord, understanding that a great number of ignorant people, the time of their sickness and disease, or otherwise at the making of their testament or latter wills, do nominate certain strangers to be their executors, meaning only to commit the care of their goods, and diligent ingetting thereof, to the said strangers, and that to the behoof of their children, or other persons who are nearest of kin; whereas, by the contrary, the said office of executry, by the interpretation now observed, doth carry with it the whole profit and commodity of the defunct's part of the goods contained in testament, which his Majesty finds to be altogether against law, conscience, and equity-therefore his Majesty, with consent of the estates of parliament, finds and declares, that all executors already nominate in any testament not as yet confirmed, or to be nominate in any testament to be made hereafter, are and shall be obliged to make count, reckoning and payment, of the whole goods and gear appertaining to the defunct, and intromitted with by them, to the wife, children, and nearest of kin, according to the division observed by the laws of this realm; reserving only to the said executors the third of the defunct's part, all debts being first paid and deduced; without prejudice always to the said executors of whatsoever legacies left to them by the said defuncts, which shall noways be prejudged by this present act, but the said executors shall have full right to their said legacies, albeit the same exceed the said third part of the defunct's part; and in case the said legacies exceed the whole third part, the said executors shall have right to the whole of the said legacy, and no part of the third; with this express declaration, that, where legacies are left to the executors, they shall not fall, both the said legacies and a third part, by this present act, but the said legacies shall be imputed and paid to them in part payment of their third."

The Lord Ordinary ordered cases.
The Executors pleaded-

It was originally argued that the act 1617, c. 14, is in desuctude; that plea seems now given up; but, if still maintained, the following authorities are sufficient to meet it:-1 Ersk. 1. 45; 3. 9. 26. Mackenzie's Observations, p. 350. Arnot v. Lindsay's Executor, M. 3928. Mackenzie's Inst. 3. 9. 11. Stair, 3. 8. 30. Bankton, 3. 8. 4. Erskine's Prin. 3. 9. 2. Nasmyth, 17th Feb. 1819; F. C. Finnie, 30th Nov. 1836. If the act, then, be in observance, the executors' right is clear, and can only be affected by the terms of the act. Whatever may have been the rules of equity in England previous to the passing of the act 11 Geo. IV. and 1 Will IV., those rules cannot apply to the case of executors, either under the act 1617, or independent of it. Under that act, the leaving of legacies does not deprive the executor of his third; and the statute makes no distinction as to the form in which the legacies are left, whether to the executor as such, or to the executor as an individual. It is said that the testatrix clearly intended to name residuary legatees; that, had she done so, the executors would not have been entitled to the third; and, therefore, it was contrary to the intention of the testatrix that the executors should take anything. But a reservation of power to name residuary legatees is quite compatible with a resolution not to name them unless the testatrix should alter her views at the time of making the reservation; and the fact of no residuary legatees being named, is a much better proof of the absence of the testatrix's intention to name them, than the mere reservation of a power to name is proof of an intention to do so. By the common law antecedent to the passing of the statute 1617, the only case in which the executor was excluded from the dead's part was that in which it was exhausted by legacies. But there never was any such condition of the law as would have deprived the executor of his right,

from a mere inference or conjecture of the testator's intention that the executor should not take.-Williams on Executors, pp. 1161, 1164, 1165. Pratt v. Sladden; 14 Ves. 197. Stair, 3. 8.30. The Next of Kin pleaded—

"1. That, independently of statute, executors-nominate have, by the common law, applicable alike to England and Scotland, right to the residue of a moveable succession; but that only where the testator's will indicates no intention to make them mere trustees, or to limit their beneficial interest as executors to a restricted amount, allowed to them in that character. 2. That where, at common law, the right of the executors is thus declared or indicated as being merely fiduciary and official, or as being restricted to a certain limited amount of beneficial interest, the next of kin are entitled to claim the free residue, independently of statute. 3. That the act 1617 does not in any case diminish the common law accountability of executors, or enlarge their beneficial interests, but merely reserves to them a right to a third, where otherwise they could have appropriated the whole. 4. That upon principles recognized by the law of England as independent of the act 1830, but equally applicable to the law of Scotland as independent of the act 1617, the claim of the executors to the entire appropriation of the residue would be excluded by the terms and provisions of the testamentary writings here left, and, in particular, by the declaration, that the executors are only appointed to carry the will into execution, by the manifest intention not to appoint them residuary legatees, and by the limited bequests made to them as executors, and which are to be taken as the full measure of the benefit intended for them under their nomination. 5. That as the general accountability of the claimants is thus sufficiently indicated and established under the will itself, the respondents have no need to found upon the act 1617 as the basis of their rights, and the claimants are not entitled to the privileges of that act, which only reserves a claim for a third to those executors who, except for the act, would have a right to the whole.-11 Geo. IV. and I Will. IV. c. 40. Mapp v. Ellock, 13th Jan. 1849; (English case, reported in) 13 Jurist, 291. 2 Blackstone, 32. 7. Stair, 3. 8. 30, 53. Ersk. 3. 9. 5. Dirleton, p. 124. Mackenzie's Observations on Stat. 1617, c. 14. Forsyth, 29th Nov. 1626. Moncrieff, 27th June 1637; 1 Brown's Sup. 371. Bell's Com. 2. p. 84; Prin. 1869.

The Lord Ordinary pronounced the following interlocutor:

:

"9th June 1849.-The Lord Ordinary having considered the revised cases, with regard to the claim made on the part of the executors of the late Mrs. Bell, for one-third of the free residue of her moveable property, in terms of the act 1617, and the case for the nearest of kin of the said Mrs. Bell, finds that the said statute 1617 is not in desuetude, and that the executors are entitled to one-third of the free executry, deducting therefrom their legacies respectively; and appoints a statement to be given in of the precise sums due to them, in order that decreet may be pronounced accordingly; and finds no expenses due to either party. "Note. Although it may rarely happen that the act 1617 comes to be applicable, there is no reason for holding that it is in desuetude. It is however contended, that where a legacy is left to an executor as such, he has no claim to the third, but

only to the legacy. It does not appear to the Lord Ordinary that there is any ground for that construction of the statute, the words of which are, without prejudice 'always to the said executors of whatsoever legacies left to them by the said defuncts, which shall noways be prejudged by this present act ;' and there is afterwards a declaration, that where legacies are left to the executors, and the third claimed by the executors, that the legacies shall be imputed to them in part payment of their third. The terms of the statute do not countenance any such reading as that contended for, that the legacies which were to be computed as part of the third were only to be such legacies as were left to them not as executors, and that if any legacies were left to them as executors, they lost all claim to the third. An argument is also rested on the circumstance, that Mrs. Bell reserved power to name residuary legatees, and to appoint executors. Mrs. Bell's intentions must be judged of, not by what she reserved power to do, but by what she did. She might have named residuary legatees, and not appointed executors; she might have named both residuary legatees and appointed executors. But, in point of fact, she appointed executors without naming residuary legatees. It appears from the clause referred to she had not at that time made up her mind as to what she might do, but reserved to herself the power of adopting the course she might thereafter think best. In the case for the nearest of kin, there is a great deal of ingenious argument, with the view of importing into the law of Scotland, apparently before 1617, certain equitable constructions, which Lord Hardwick and other eminent judges introduced into the practice of the Court of Chancery. According to the law of both countries, the executor appears to have taken the executry, not as successor, but as an incident to his office of executor. He was not obliged to give up any part of what he took as executor, provided he fulfilled the duties of his office. The gross injustice of this, where the executor was a stranger, appears to have been felt in Scotland as early as 1617, and is well described in that statute. According to the law both before and after the statute, the executor was bound to pay legacies, and he was therefore only entitled to the third after paying the legacies. In England, certain equitable doctrines were introduced by great and eminent judges, with regard to the application of which they however differed. Lord Eldon is said to have differed from Sir William Grant, and the present Lord Chancellor is said to have reversed the judgment of another judge in equity. A statute has been passed in England, 200 years after the Scotch statute, apparently with the view of removing the difficulties with which such discussions were attended. But, in construing the Scotch statute, the doctrines which prevailed in the courts of equity in England, from the time of Lord Hardwick downwards, afford no assistance in interpreting the Scotch statute. The same equitable views which produced the Scotch statute may have prompted the doctrines which were introduced in the Court of Chancery in England; but this statute, though the produce of an earlier and ruder age, must be judged of according to the terms used, and the practice to which it was applicable."

The Next of Kin reclaimed.

A short oral argument took place on the import and authority of the decision in the case of Nasmyth, quoted above.*