Authorities for J. and A. Smith, and Alexander.-Ut supra. Lord Ordinary, Wood.-Act. Anderson, Neaves, Inglis; Thomas Ranken, S.S.C., Agent.-Alt. Lord Advocate (Rutherfurd), G. G. Bell, A. Smith; A. G. and R. Ellis, W.S., Agents.W. Clerk.-J.C.]

14th January 1847.

SECOND DIVISION.-(F.L.M.H.)

No. 57.-HART ANDERSON, Pursuer, v. THE EDINBURGH AND GLASGOW UNION CANAL COMPANY, Defenders.

Poor's-Rates Canal-In a parish where the assessment for poor'srates was laid on the heritable property, one-half on the proprietors and heritors, and the other half on the tenants and occupantsHeld that the proprietors of a canal, which was unlet, but which was used and worked by the proprietors for profit, were liable to pay the assessment for poor's-rates, as proprietors and occupants, and not merely that part of it which is assessable on heritors. Poor's-Assessment-Canal-Held that house property belonging to a canal company, and occupied by them, is to be assessed for poor's-rates exclusively in the parish in which it is situated, and is not liable to be assessed in the different parishes through which the canal passes.

See ante, vol. xi. p. 409.

In a former case between these parties, the Second Division of the Court, on 7th March 1839, after consulting the whole Judges, pronounced an interlocutor repelling a defence by the Canal Company, to the effect that it was not liable for poor's-rates in the parish of St Cuthbert's; and finding that the portion of the canal situated within the said parish was assessable, and that the rate must be levied according to the annual value of the canal as an heritable property.

The pursuer, as collector of poor's-rates, now brought an action against the defenders for part of £25. 16. 5., being the company's proportion of the assessments for the support of the poor, for the years 1843 and 1844, as proprietors and occupants of heritable property in the parish.

The defenders lodged defences, objecting to the mode of assessment, which charged them in the double character of heritors or proprietors of the canal, and also as tenants or occupants. They did not object to the former of these charges, but stated, that as they were not either tenants or occupants of the canal, they were not liable to be assessed in the other character.

The pursuer pleaded—That the defenders were assessable for poor's-rates, both as proprietors and occupants of the canal and basins.

The defenders pleaded-That being assessed as proprietors and heritors upon the annual revenue or return arising from the canal and its pertinents and the use such as they had of it, they were not liable to be again assessed upon the same annual revenue or return of the same property as tenants or occupants, so as to pay a double assessment upon the same property: And that, as there was no assessment in the parish upon means and substance, but upon the rental of heritable property only, no assessment could be enforced against the defenders in respect of the boats, horses, and office-furniture belonging to them.

The Lord Ordinary (Robertson) ordered minutes of debate.

The pursuer argued-That the present assessment in St Cuthbert's parish was imposed on the same principle

as had been adopted in the parish for the last 80 years. The whole sum required for the poor was first ascertained, and then apportioned among the heritable subjects in the parish according to their real rent. The sum imposed upon each heritable subject was paid in two portions one by the landlord or proprietor, and the other by the tenant or occupant; but where a landlord occupied his own property in place of letting it, he paid the whole assessment. It was specially fixed between the parties to the present process by the former interlocutor of Court, that the canal was an heritable subject, and it was likewise so fixed generally by 8 and 9 Vict. c. 83, § 1, which enacts, "that the words, 'lands and heritages' shall extend to and include all lands, fishings, freshwaters, ferries, quays, wharfs, docks, canals, railways, mines, minerals," &c. The 34th section enacts," that parochial boards may 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 value of such lands and heritages.' Being an heritable subject, the company were bound to pay one-half of the assessment as proprietors thereof, and another half as tenants or occupants, unless as to the latter half, they could point out some tenant to whom their property was let, and who would relieve them of that part of the assessment. Some parishes laid their assessment for the poor one-half on the heritage, and one-half on the means and substance of the inhabitants; but the mode adopted in this parish was likewise very common and very generally acted on. At any rate, it was the "local usage" acted on in the parish, and the statute 8 and 9 Vict. c. 83, § 35, contemplated and recognized such assessments being imposed according to a local usage. By that section it is enacted, "that if, at the date of this act, an assessment for the poor shall, in any parish or parishes, be imposed according to the provisions of any local act, or according to any established usage, it shall be lawful for the parochial board or boards of such parish or parishes to resolve that the assessment in such parish or parishes shall be imposed according to the rule established by such local act or usage.' There could be no doubt that a canal could be "occupied" by the levying of dues and tolls on transit.

The defenders argued-That although the question at issue was one arising under the former poor-law, yet as, in regard to the point in dispute, there was no difference between the former and the present law, the decision was important. The assessment was levied one-half on the heritors and the other half on tenants or occupiers. In most parishes this last half was laid on the householders and inhabitants, according to their means and substance; but in some parishes it had been so difficult to ascertain the means and substance of this class, that the assessment was made as in this parish, according to the rents of the houses and lands occupied by them, which were assumed to afford some criterion of means and substance. The Canal Company resembled a turnpike-road, which could not be occupied, and was in fact just a highway, with this difference, that while road trustees were empowered by statutes to let tolls, the defenders were not empowered by their statute to let theirs. The proprietors of the

Canal Company were in fact trustees for the public, and were themselves debarred from any beneficial occupancy or enjoyment of their own canal. The occupancy of the canal was entirely with the public, whom the defenders were bound to accommodate. The defenders had no such exclusive possession as justified an assessment on them as occupants, and that, as the whole of the revenue of the defenders had been levied on in their character of heritors, they could not be assessed a second time on the very same revenue.

The Lord Ordinary pronounced the following interlocutor:

"2d June 1846.-The Lord Ordinary having considered the revised minutes and whole process,-In respect of the decision of the Court of the 7th March 1839, in the former case between the same parties, Repels the defences, and decerns in terms of the libel: Finds the defenders liable in expenses; and remits the account thereof, when lodged, to the auditor to tax the same, and report.

"Note.-In the case of Scott v. Fraser, 19th January 1773; Mor. 10,577, it was settled that the assessment of the poor'srates of the parish of St Cuthbert's was lawfully imposed according to the real rent, one-half payable by the landlord, and the other by the tenant. Where the landlord was himself the occupant, he paid both proportions, according to the actual value of the subjects. By the recent statute 8th and 9th Vict. c. 83, § 35, assessments imposed by established usage may be kept up. The legality of the mode of assessment, therefore, generally is not disputed.

"The next question is, Whether the canal is a subject liable to assessment for poor's rates? Now, after the decision of the whole Court in the case with this company in 1839, it is impossible to dispute such liability. All the argument as to the public being occupants of the canal, as to this not being properly an assessable subject, and so forth, which prevailed with the minority of the Court, however competent in the event of an appeal, can be of no avail now in this Court, while that judgment stands unreversed. Nothing has occurred to invalidate that judgment, but, on the contrary, the act 8th and 9th Vict. c. 83, § 34, authorizes parochial boards to impose an assessment, one-half on 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;' and the first section enacts, that the words lands and heritages, shall extend to and include all lands, fishings, fresh waters, ferries, quays, wharfs, docks, canals, railways, mines, minerals, &c.

"It does not seem to be disputed that, according to the law of England, canals are liable to such assessments; and reference is made by the defenders to two recent cases, as to the mode of laying on the assessment on railway companies, (Carrow and Oliver's Reports, vol. i. pp. 1, 28), from the rules observed in which cases no departure in this case is made out.

"In the former case, it appears that the parties agreed to hold 'the sum of £1000 to be the gross annual worth to the defenders of their property in their own occupancy, including canal dues of the canal, and works therewith connected, situated in the parish of St Cuthbert's;' and the judgment of the Court was, 'repel the defence that the Union Canal is not liable to assessment for poor's-rates in the parish of St Cuthbert's; find that the portion of that canal situate within the said parish is assessable accordingly, and that the rate must be made according to the annual value of the canal, as an heritable property in its present condition; and with this finding, remit the cause to the Lord Ordinary, to proceed farther therein as he may see just.' Some further discussion appears to have followed as to the propriety of the amount of the assessment; and this being ascertained, the defenders were ordained to pay both as proprietors and as occupants. Since this decision the assessment has been paid, and it seems utterly in vain for the defenders to contend that their canal is not an heritable subject liable to assessment. They accordingly do not appear to dispute, that if the canal had been let to a tenant, as it might have been, they would have been liable in an assessment as proprietors, and the tenant in a separate assessment, as the party in actual occupation. But if so, what is the meaning of resuming the argument, that

the public are the sole occupants of the canal, from which, at the same time, it is said, the company derive tolls and revenue as well as profit, in their capacity of common carriers? If the assessment be legal against them as proprietors, then the subject is not held for the sole use of the public. If, in like manner, the tenant might have been assessed, and the proprietors are themselves the occupants, how can they, as occupants of an assessable heritable subject, be free from the assessment falling on the occupants?

"The case of Morris v. Orr, 11th December 1840, has no bearing upon this question. The point there raised was not as to an assessment with respect to the occupation of the subjects, but whether the sheriff-clerk, who rented an office in Dundee, but had his residence in Edinburgh, was liable in assessment as an inhabitant in Dundee, on the estimated profits of his living and business within the burgh. It seems therefore plain, that the Canal Company must be assessed, both as proprietors and as occupants. They are as much the occupants of an assessable subject as they are the proprietors. No alleged use on the part of the public can liberate them from the one assessment more than from the other. As stated in the opinion of Lord Cuninghame, concurred in by the majority of the Court, when illustrating the case by a lease having been granted of a canal-'But the burden is not less clearly on the shareholders when they retain the canal in their own hands, and levy the tolls themselves. They must pay both the tenants' and the heritors' assessments, exactly as landed proprietors do for the lands which they keep in their own hands.'

"It is contended, however, that the defenders are not liable in a double assessment on the whole revenue as heritors, and on the same revenue over again as occupants. The answer to this is, That the assessment has not been so imposed. A per centage is laid on, as an assessment, on every heritable subject within the parish. The amount of that assessment, as applicable to this subject, was ascertained under the former proceedings-and it is not said that, in fixing the assessment, any fair deduction has been disallowed. The landlord's proportion is correctly stated. But if so, the other proportion must be equally correct; and if the defenders are liable, as proprietors, in the assessment, they are equally liable as occupants. There is the same fallacy in their argument now as there was formerly; the value of the heritable subjects has been ascertained fairly and properly, in the same manner as if the subjects had been let. Suppose that they had been so let, and the assessment had been £25 per annum, the landlord would have paid one-half and the tenant one-half. But if the value be fairly estimated at £25, as is not disputed, that amount must be paid; and the defenders, being both landlords and occupants, must pay the whole. This is not a double assessment, but a single assessment, paid wholly by one party, who happens to be both landlord and occupant, in place of one-half by the landlord and the other by the occu pant, where the parties are separate. No ground, therefore, has been stated, which can alter the efficacy of the deliberate judgment of the Court in the prior case."

The defenders reclaimed, and prayed the Court to find that they were not liable to assessment as occupants in addition to the assessment laid upon them as heritors; and therefore to sustain the defences, and assoilzie them from the conclusions of the action, with expenses.

At advising,

Lord Justice-Clerk.-As the company don't let the canal, I think there can be no doubt they themselves occupy the canal, and must pay the part of the assessment falling on occupants. They don't object to the amount allowed as a deduction for tenants' profits; but they say 10 per cent. on their capital employed is too small. We can have a report on these matters. Lord Medwyn.-I am of the same opinion.

Lord Cockburn. I am of the same opinion, Does it follow that all the houses belonging to the Canal Company within the parish must be taken as part of the canal? If the trade of the canal required them to have houses quite detached from the canal, would such houses be assessed as part of the canal? I think not. I think the collector's answer to the plea of not possessing quite good. They don't let it. It will not do to say the public use it. So they do an inn, but they pay for their accommodation. The true occupant of the inn is the innkeeper.

Lord Moncreiff was of the same opinion.

The Court pronounced the following interlocutor: "Find that, in assessing the defenders according to the annual value of the canal as an heritable property, the pursuer is entitled to take one-half of the assessment on real rent as payable by the defenders as heritors, and one-half as payable by them as occupants, and to that extent adhere to the interlocutor of the Lord Ordinary, and decern: Find that the pursuer, in making such assessment, is bound to make a deduction, and has made a deduction, on account of the capital embarked by the defenders on their carrying trade, and that the defenders now deny that an adequate allowance is made on that account: Find that the pursuer is bound to make a deduction, and has made a deduction, on account of tenants' profits, and that, in the assessment complained of, as now explained in the minute, the defenders do not object to the deduction on this head as inadequate: Find that in regard to the house property situate in St Cuthbert's parish, and occupied by the defenders, the pursuer is entitled to deduct the rent of the same from the general revenue or annual value of the whole canal, and to assess the same as liable in poor's-rates exclusively in the parish of St Cuthbert's; and that if the defenders are exposed to any charge on account of the same in other parishes through which the canal passes, their remedy is to be obtained by objecting, according to law, to the assessment so imposed in such other parishes: And in regard to the objection stated by the defenders to the deduction made on account of the capital embarked in the carrying trade as insufficient, and also as to their objections stated on page 3d of the answers to the minute as to the allowance for outlay on the reservoir and feeder-before answer, remit to Mr Robert Whigham, advocate, to inquire into and report upon the sufficiency of such deductions on the sums which ought to be allowed, if the present deductions appear to be inadequate, with power to said commissioner to call for books," &c.

Pursuer's authorities.- Scott, 19th Jan. 1773; Dict. 10,577. 8 and 9 Vict. c. 83, § 1, 34 and 35. Archbold's Poor Laws, 121. Rex v. Milton, 3 Barn. and Ald., 112. Rex v. Palmer, 1 Barn. and Cress., 93. Rex v. Earl of Portmore, 1 Barn. and Cress., 551. Rex v. Mill Dock Co., 1 Bott. and Const. 238. Anderson v. U. Canal Co., 7th March 1839; supra, vol. xi. p. 409. Defenders' authorities. -Morris v. Orr, 11th Dec. 1840; Dunlop's Paroch. Law, § 136. Queen v. Great Western Railway Company, 2 Jan. 1846; 4 Railway and Canal Cases, 1, 28.

Lord Ordinary, Robertson.-Act. Dean of Faculty (M'Neill), James Donaldson; J. R. Stodart, W.S., Agent.-Alt. Lord Advocate (Rutherfurd), More; W. A. G. and R. Ellis, W.S., Agents.-R. Clerk.-[F.L.M.H.]

15th January 1847.

FIRST DIVISION.-(J.C.)

No. 58.-HUGH TENNENT of Wellpark, Esq., Claimant, V. THE EARL OF GLASGOW and others, Claimants. Title to Sue-Process-Title and Interest-Multiplepoinding -Competency-Trust-Certain parties subscribed a sum of £100 for the purpose of adding to the funds of a particular school. One of the principal subscribers transmitted, by direc tion of the other contributors, a letter of credit for the £100, to a party who held other funds destined to the support of the school. This letter of credit was never cashed, and the party to whom it was addressed died. The person who had transmitted the letter of credit thereafter raised a multiplepoinding in name of the bankers in whose hands the £100 were deposited, and claimed payment on the ground that the executor of the deceased was about to apply the fund for behoof of a different school from that intended by the subscribers. A competing claim was also lodged for the executor of the deceased and the trustees of the school, to which the other funds had been applied. Circumstances in which the Court preferred the claim of the executor of the deceased on the £100, which was the fund in medio ; and Held, 1. That the party who had transmitted the letter of credit had no title to claim the fund in medio; 2. That the question as to what was the proper mode of applying the fund could not be competently determined in the multiplepoinding.

About the year 1819, the claimant Mr Tennent and his brother-in-law, the deceased Mr Parker, formed a plan for promoting the education of the inhabitants of the village of Fairlie, in the parish of Largs, Ayrshire. With this view they proposed to erect a school-house there, and to procure a teacher. Their plan was communicated to and approved of by the late George Earl of Glasgow, on whose property Fairlie is situated. A school-house was accordingly erected by the claimant and Mr Parker, which cost about £200; upwards of £100 of which was defrayed by Mr Tennent, Lord Glasgow contributed the wood required for the building, and granted the site on which it was built. No written title of any kind to this ground was granted by Lord Glasgow, but Mr Tennent alleged that he had received repeated assurances from his Lordship that he would never be disturbed in the occupation of the ground, nor in the management of the school. Mr Tennent farther alleged that he had taken the whole management of the erection of the school-house, and that the whole receipts for money paid to the tradesmen employed were made out in his name. The first teacher, Mr James Parlane, was appointed in January 1821, and held office till 1836. Mr Tennent alleged that this appointment had been made by him and Mr Parker, Lord Glasgow having, so far as he was interested, devolved upon them the whole management of the school. Mr Tennent farther alleged that he had from the first exercised the principal control over the school, and that after Mr Parker's death in 1828 he became the sole director. With a view to increasing the funds of the school, Lady Jane Boyle, by her settlement, dated 14th April 1820, directed her brother and executor, the late Lord Glasgow, to mortify £300 for the use of the school, and ordered the yearly interest thereof to be applied to that purpose. By a subsequent order on her executor, dated 25th January 1821, her Ladyship, directed £5 sterling additional to be paid yearly to the schoolmaster of the new school at Fairlie, in name of salary, in all time coming.

Lady Jane Boyle died in 1824. Soon afterwards the late Earl of Glasgow

"executed a deed of nomination of trustees, and declaration of trust, whereby, on the narrative that the above mentioned sums had been left by his sister for the benefit of the Fairlie School, and in order to provide for the administration of the fund, he nominated himself, whom failing, the heir in possession of the estate of Kelburne, the minister of the parish of Largs, both for the time being, along with Charles Parker and Hugh Tennent, Esquires, during their lives, and on account of the particular interest which they had taken in the school, to be trustees and managers of the said school, which was to be known by the name of the Honourable William Boyle's School."

By this deed "full power" was reserved to the late Earl of Glasgow, during his lifetime,

"whom failing, the other trustees aforesaid, the majority for the time being always a quorum, to uplift, receive, and discharge the yearly income of the said fund, and to apply the same for the purposes aforesaid, in such way and manner as to them shall seem best and most expedient for furthering the objects of the said charity, and with power also to make statutes and regulations for the guidance and management of the said school, as well as the scholars and teacher, and in general to do and exercise whatever may appear to them to be requisite and necessary for promoting and perpetuating the said school, all which actings shall be binding and effectual upon all concerned ; declaring hereby that their acceptance of this friendly office

shall not infer any liability beyond their own actual or personal intromissions."

In the course of 1824, a sum of about £70 had been subscribed by Mr Tennent, and other parties resident in Fairlie, for the purpose of building a house for the schoolmaster. This sum was not applied to that purpose, however, in consequence of the late Earl of Glasgow having himself erected the house at his own expense. The claimants, the present Earl of Glasgow and others, alleged that the late Earl had built the schoolmaster's house on condition that the parties who had subscribed the £70 above mentioned should

procure subscriptions sufficient to raise a sum of £100, to be added to the £300 left by Lady Jane Boyle; and that the interest of the whole £400, with the before-mentioned annual allowance of £5, should be paid to the schoolmaster, by way of salary."

This allegation was denied by Mr Tennent, who averred that no such condition was made by the late Earl; that the £70 was, with the authority of the subscribers, lent by Mr Tennent to the teacher of the school on 3d May 1826, for the purpose of furnishing his house, and that it was repaid by the teacher, by small instalments, in the years 1827, 1828, 1831, and 1836, conform to a docqueted account between Mr Tennent and the other subscribers, which was produced.

The above sum of £70 was, in the year 1836, increased by the additional subscriptions of various persons to £100. It was alleged by Mr Tennent that the subscribers

"then agreed to devote the £100 to forming a fund for increasing the teacher's salary," and to place that sum in the late Lord Glasgow's hands, as a matter of convenience, his Lordship being the holder of Lady Jane Boyle's bequest for a similar purpose."

Mr Tennent further alleged, that it

"L was intended that the money should be invested on good heritable security;" and that, in "entering into this arrangement, it was no part of the subscribers' intention to part with their control over the fund, or to divest themselves of the power of seeing that it was applied to its legitimate object; and that they were further ignorant of the existence of" the deed of trust previously executed by the late Earl of Glasgow in reference to Lady Jane Boyle's bequest above mentioned.

On 30th November 1836, Mr Tennent (in consequence, as he alleged, of the above resolution of the subscribers) addressed to the late Earl of Glasgow the following letter:

"30th Nov. 1836.

"I beg to enclose to your Lordship a draft on Edinburgh for £100 (which I do at the request of the subscribers), for the purpose of being conjoined with the £300 left by the late Honourable Lady Jane Boyle, for purpose of founding a salary for the present and future teachers of Fairlie School.

"I have paid the present teacher interest at the rate of 4 per cent. on the £100, for the nine months he has been at Fairlie. "I will do myself the pleasure of waiting on your Lordship very soon, as I expect to be at Fairlie on Saturday for a day. Ì trust that your Lordship will not be offended at my complying with the wishes of the subscribers, in placing the money in such excellent hands as your Lordship's."

The late Earl of Glasgow did not cash the letter of credit which was thus transmitted to him, and the money was allowed to lie in the hands of the bankers, Sir William Forbes and Company. It was consequently never conjoined with Lady Jane Boyle's bequest, nor invested on heritable security.

It appeared that, in June 1836, when the £70 above

mentioned was increased by additional subscriptions to a fund of £100, Mr Robert Pinkerton was appointed teacher of the Fairlie School in room of the original schoolmaster, who had resigned. Mr Pinkerton accordingly was the person referred to in Mr Tennent's letter above quoted as the " present teacher" of the Fairlie School.

The "letter of agreement" conferring on Mr Pinkerton the office of teacher of the school was addressed to him by Mr Tennent, and the late Mr Gardner, minister of the quoad sacra church at Fairlie, and was alleged to have been approved of by the late Earl of Glasgow. That letter contained the following passages: "Mr ROBERT PINKERTON, Fairlie, 16th June 1836.

“ Sir,- It has been already intimated to you, that you have been fixed upon as the teacher of the school in this parish, erected by the Earl of Glasgow, the late Mr Parker, and Mr Tennent; and as these parties have devolved the management of the said school on us, we have now to state the conditions of your appointment,

،،

First, The salary attached to the school is derived from the following sources, viz., the interest of £400-£300 of which was left by the late Lady Jane Boyle, and £100 subscribed by the inhabitants of Fairlie; also £5 annually by the foresaid Lady Jane Boyle, together with £4 annually from the heritors of Largs, which latter sum will, we expect, be continued.

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"We will at all times have power to vary the hours of teaching, and management of the school, and every thing else connected with it." "The teacher is bound, in all time coming, to teach when required to do so by the Earl of Glasgow or his successors, ten or twelve children belonging to the village of Fairlie, at onehalf of the usual fees, in consideration of the before mentioned salary."

It was alleged by Mr Tennent that,

“ till recently, the interest upon the £100 was paid to Mr Pinkerton by the hands of Lord Glasgow's factors," and that, "in the factor's accounts with Mr Pinkerton, this sum is mentioned as being a fund raised in Fairlie for behoof of the teacher.'"

In the course of 1843, the late Earl of Glasgow died, and was succeeded by his son, the present Earl. Thereafter, on Whitsunday 1844, Mr Pinkerton removed from the school-house, but he continued to teach a school in Fairlie, which was said to be numerously attended. Mr Tennent alleged that Mr Pinkerton had been removed by the Earl of Glasgow,

"founding on an alleged right to the school-house, in respect of the solum upon which it is built being his property," and that "the pretext upon which this act upon Lord Glasgow's part is founded is, it is believed, that Mr Pinkerton has ceased to be a member of the Establishment, and has joined the Free Church.” Mr Tennent farther alleged, that

"it was not contemplated that the school should be in connection with the Established Church."

The Earl of Glasgow, on the other hand, alleged, that in

"November 1843, Mr Pinkerton, in consequence of an intimation made on the part of the majority of the trustees appointed by the late Lord Glasgow's deed, that he could no longer be continued teacher of the Fairlie School, gave in his resignation to Lord Glasgow's factor, but was thereafter allowed to continue in the school till the term of Whitsunday 1844, when he removed, and the new schoolmaster who had been appointed in his place then entered upon his duties as such, and got possession of the school and schoolmaster's house."

It was farther alleged, that, at the date of their subscriptions, most of the subscribers to, and, at the date of their respective appointments, both of the teachers of, the Fairlie School, were members of the Established Church.

In the above state of matters, Mr Tennent raised a multiplepoinding, in name of Sir William Forbes and Company, setting forth, that the raisers held in their hands the sum of £100, for which the letter of credit in favour of the late Earl of Glasgow, dated 30th November 1836, and above referred to, had been granted; that they were ready to pay the said sum of £100, with interest, "to whoever has best right thereto, but that they are daily harassed for payment" at the instance of the Earl of Glasgow, as executor of his father, and of the said Hugh Tennent.

Competing claims for payment of the above sum of £100 were given in for Mr Tennent on the one hand, and on the other for the Earl of Glasgow, as executor of his father, or alternatively, for the said Earl, and the Reverend John Kinross, minister of Largs, and others, "as trustees for the school of Fairlie, known by the name of the Honourable William Boyle's School."

A record having been made up and closed, Mr Tennent pleaded-1. The claimant was entitled, for himself and on behalf of the other subscribers, to be preferred upon the fund in medio, to the effect that it should be appropriated to the proper and peculiar objects for which it was subscribed, and to which alone it could legally be applied. And the claimant, Lord Glasgow, as executor of his father, was debtor in the said sum to the claimant, in his own right, and as representing the parties for whom he acted, when he deposited it in the hands of the raisers. 2. The opposing claimants were not entitled to receive payment of the fund in question, in respect it was admitted by them, that they meant to apply it to a purpose different from that for which it was raised and appropriated. 3. The title of the opposing claimants being derived solely from a deed said to have been executed by the late Lord Glasgow, in relation to Lady Jane Boyle's bequest, they could have no right to claim this separate and independent fund, which was not created till long after the date of the alleged deed, and over which Lord Glasgow had no power of disposal.

The Earl of Glasgow and others pleaded-1. The claimant Mr Tennent remitted the £100 in question to the late Earl of Glasgow, for the purpose of being conjoined with and applied in the same manner as the £300 left by Lady Jane Boyle, and had therefore no title to ask for repetition of the sum, or any part thereof, or to interfere in the disposal of the same, except to the extent of seeing it applied in the same manner as the said £300, and as his claims amounted to a demand to have money applied to purposes different from the payment of the teacher of the school built in 1820, it was untenable. 2. The £100 having been placed

in the hands of Sir William Forbes and Company, for the special purpose of being drawn upon by the late Earl of Glasgow, and applied by him in terms of the arrangement entered into between the subscribers and the said Earl, the claimants were entitled to be preferred thereto, in terms of their respective claims.

The Lord Ordinary pronounced the following interlocutor:

"3d June 1846.-The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the process, -Finds that, in so far as the claim is made by the parties designed as the Trustees of the Fairlie School, and by Lord Glasgow as one of their number, it must be held to be made with consent of Lord Glasgow, as one of, and acting for the executors of the late Earl of Glasgow, in so far as any such consent was requisite: Finds that, in the circumstances, the claimant Mr Tennent has no title to claim the fund in medio: And finds that, in the existing state of matters, the Earl of Glasgow is entitled to be preferred to the fund in medio, both to that part of it consisting of principal, and that which consists of interest, and ranks and prefers him accordingly, and decerns; reserving all questions that may be raised in competent form, as to the ultimate right to the fund, and the purpose to which the same can be legitimately applied: And finds the claimant Mr Tennent liable in expenses; and remits the account thereof, when lodged, to the auditor to tax and report.”

Mr Tennent reclaimed. At advising,

ever.

Lord Fullerton.-I am of opinion that the interlocutor of the Lord Ordinary is correct, and that it ought to be adhered to. I much regret that an action so ill adapted for the purpose should have been raised in order to try the matter really at issue between the parties. The question here raised is simply this,"Shall the £100 in Sir William Forbes and Company's hands be paid to Mr Tennent or the Earl of Glasgow?" And in that competition I think Lord Glasgow must be preferred. He holds a draft on the bank, in his character of executor of his father, for payment of the £100 which Mr Tennent now wishes to be permanently disjoined from the £300 bequeathed by Lady Jane Boyle to the Fairlie School. Now, what is Mr Tennent's title to ask payment of that money? I think he has no title whatHe paid the money-at least he sent a draft for it-to the late Earl of Glasgow-(reads letter, Mr Tennent to the late Earl of Glasgow, dated 30th Nov. 1836, and above quoted). He thus gives over the £100 to Lord Glasgow, according to the directions of the subscribers. Then, one word as to the trustdeed executed by Lord Glasgow, in relation to Lady Jane Boyle's bequest. I understand, from what we have heard, that her Ladyship left the bequest to the treasurer of the society of subscribers to the Fairlie School. Now, it seems that no such person ever existed. The only way, therefore, in which Lord Glasgow could extricate the settlement of her Ladyship in reference to that bequest, was by creating such a trust as that which his Lordship did create, for the purpose of applying the bequest. Then Mr Tennent, knowing that Lord Glasgow had in his possession the £300 bequeathed by Lady Jane Boyle, sends to his Lordship a draft for the £100 in dispute, in order that that sum also may be in his Lordship's hands. What title, then, has Mr Tennent, after paying to Lord Glasgow, by direction of the subscribers, the fund subscribed, to ask back that fund? A subscriber-a person in Mr Tennent's situation— may bring an action to get such a fund properly applied; but he cannot get back that fund, unless it cannot be applied in the manner contemplated when the subscriptions were made. In one of the recent church cases, the Court said, and said correctly, that as the subscriptions could not be applied in the manner contemplated by the subscribers, the subscriptions ought therefore to be refunded; and thus a new element entered into that question. That cannot, I suppose, be said here. But Mr Tennent, if so advised, may raise an action to enforce a proper application of the fund in question. All that is kept safe by the interlocutor of the Lord Ordinary. He cannot, however, get the money back, nor do I see the least ground for the demand. And looking to the nature of the process, we must sustain the claim of Lord Glasgow. Mr Tennent does not ask that the trustees for the Fairlie School should be preferred.