PART I. CHAPTER I. Bruce v. Grant, 27th February 1839, it was found incompetent for the patron to reduce the presentation to the macership, upon the ground of non-implement of the illegal stipulation. But, notwith- 1 D. 583. standing these decisions, it was not held to be settled law, that a public officer might not assign the emoluments of his office, and such assignments did actually occur; while the Court of Session was also in the constant practice, in processes of cessio bonorum at the instance of public officers, to require the allocation of a portion of their emoluments as a fund for the payment of their creditors. In the case of Scott, 25th January 1817, reported under date 11th F. C. (footMarch 1818, a minister, having obtained the benefit of cessio, was note.) ordained to assign to his creditors £75 a-year of his stipend, which amounted in all to £150; and this was affirmed on appeal, 5th 1 Sh. App. 363. March 1823. Very important observations, however, fell from the Lord Chancellor, when the case of Paul v. Hill, 15th November 1 D. 27. 1838, was considered upon appeal in the House of Lords. In that 2 Rob.App. 524. case, in apparent inconsistency with the case of Wilson, it had been held by the Court of Session, that the emoluments of the office of the Keeper of a register of sasines were carried by a general clause in a trust-deed of the party conveying his whole effects for behoof of creditors. But the House of Lords reversed the decision; and, although this was done upon the principle that such a general clause could not be held to include the future fees of a public officer, the Lord Chancellor made very pointed remarks, impugning the competency of assigning the future emoluments of the office in question. He pointed out that such an assignment would be illegal and void in England upon principles of public policy, which principles, he observed, were also, upon the authority of Erskine, to be found in the law of Scotland; and his Lordship expressed a hope that his observations would secure attention to the point, if it should afterwards arise for decision. In this state of the law, therefore, a Conveyancer could not, without incurring the hazard of personal responsibility, advise the assignment of the emoluments of a public office as a competent security which the law would sanction. In consistency with the principle already illustrated, effect has been refused to an agreement between two public officers, whereby one of them undertook to discharge the duties of both; Mason v. 7 D. 160. Wilson, 28th November 1844. In the case of Henderson v. Mackay, 11 S. 225. 20th December 1832, the Court refused action upon a contract between a law-agent and a Messenger-at-arms, whereby the messen- MESSENGER ATger engaged to exercise his functions for a salary under the agent, who was to receive the fees, such an agreement being held inconsistent with the status of a messenger-at-arms as a public officer. Other instances of pactum illicitum, to which the law will give no countenance, are cases of bribery; and so a bond for an annuity, ARMS. PART I. CHAPTER I. ILLEGAL CON- given as a consideration for securing a vote for a Member of Parliament, was held void, in Glen v. Dundas, 15th January 1822. Nor A BRIBE 18 AN will support be given to simoniacal pactions, by which the office of the holy ministry is given in consideration, wholly or in part, of secular stipulations. The Court, therefore, refused to sustain an action upon an obligation for an annuity of £20, granted by the presentee's father as a part consideration for a presentation to a living; Maxwell v. Earl of Galloway, 19th January 1775. 1 S. 234. SIMONIACAL PACTIONS ILLE GAL. M. 9580. IMPOSSIBLE CONDITIONS. Ersk. Inst. iii. 3, 85. EFFECT OF CON STRICTION OF MARRIAGE. i. 3, 7. iii. 3, 85. If a deed is dependent upon a condition impossible of fulfilment, it is null, except in testaments and legacies, and even in deeds inter vivos, when the granter lies under a natural tie to execute them. In these excepted cases, the condition will be held pro non scripto, and the deed will receive the same effect as if it had been granted without the insertion of such a stipulation. There is one species of condition which has been viewed with conDITIONS IN RE- siderable diversity of opinion at different periods-stipulations, viz., whereby legacies or provisions are granted upon condition that the grantee shall not marry a particular person, or shall marry only with the consent of persons named by the granter. The opinion of Lord Stair is, that when parents give bonds to children on such a condition, the "bonds are valid, and the condition is void, as against the "freedom of marriage, which the natural affection of parents obliges "them not to violate. But if such a condition be imposed by any "other, who hath no natural obligation, the condition is valid." Erskine, again, states the law in conformity with the course of decisions at the period when he wrote, whereby no greater force was allowed to conditions of this sort than to the Judge appeared proper; and even in the case of provisions, made (with the condition referred to) by strangers under no natural obligation, the ancient practice of strict adherence to such condition had been departed from in Erskine's time, and the effect given to the stipulation, in this case, also, was dependent upon the Judge's opinion whether or not consent to the marriage was withheld upon reasonable grounds. In illustration of the opinions now cited reference may be made to the following cases; Hume v. her Tenants, 16th December 1629. Here a tack was declared null, if the tenant's daughter should marry without the landlord's consent; and, although he lived some years after her marriage without expressing disapproval thereof, the tack was annulled in the absence of his express consent. This case affords, no doubt, a picture of relations which subsisted under feudal usages, but which have now entirely disappeared, and it may justly be doubted whether any effect would now be given to a stipulation of this kind in such circumstances. In Gordon v. The Laird of Leyes, 8th January 1663, a bond to a daughter, under the condition that she should marry with the consent of a person specified, was held good although she married without the M. 2964. M. 2965. PART I. CHAPTER I. required consent, and the condition treated pro non scripto. In Buntin v. Buchanan, 7th July 1710, the parties required by the father to consent expressly dissented; but the Lords, being of opinion M. 2972. that their dissent was groundless, decerned for the provision in question, stating, however, that if she had married a turpis persona, or with great disparity, they would have taken that into consideration. The tendency of the later decisions, however, has not been to confirm the relaxation of such conditions, upon which Mr. Erskine's doctrine is founded, but rather to give effect to them, not only where stipulated by strangers lying under no obligations to make the provision, but also, except in very special circumstances, in the case of a provision flowing from a parent, in so far as such provision exceeds the amount of the child's legal claims. In Douglas v. Douglas's M. 2985. Trustees, 7th February 1792, a declaration contained in a codicil to a settlement, that if the testator's daughter had already married a certain person, she should not derive any benefit from his settlement, was held by the Court of Session to be ineffectual, although the marriage referred to had taken place; but this decision was reversed upon appeal by the House of Lords, and the condition thus received legal effect; and in the case of Hay v. Wood, 27th November 1781, M. 2982. a condition that, in case a daughter should marry without her father's consent, a bond of provision should be void, received full effect. In a recent case, the right of the disponee of an estate was made void in the event of her marrying without the approbation of the disponer's trustees first had and obtained. The disponee having married without asking for the consent of the trustees, their approbation, given after the marriage, was held to obviate the forfeiture; Well- 13 D. 1211. wood's Trustees v. Boswell, 21st June 1851. In Reid v. Coates, 5th F. C. March 1813, a settlement had been made by an uncle upon his nephew, with the condition that he should not reside with his mother or any of her relations, nor should she reside with him. The legatee objected to this as a læsio pietatis, absurd in itself, and contrary to law and morality, and which it was impossible for him to obey without violating the established order of nature. But the Court declined to exempt him from the performance of the condition. Here the bequest was made by an uncle, a party under no legal obligation to provide for the nephew. But where a provision has been made by a father for his child, with a condition that she should cease to reside. with her mother, who was of irreproachable character, the condition was considered to be clearly contra bonos mores, and was held pro non scripto; Fraser v. Rose, 18th July 1849. The provision in this case 11 D. 1466. exceeded the sum to which the daughter was entitled ex lege; but the attempt to exclude a daughter from the society and counsel of a blameless and exemplary mother, was justly looked upon by the Court as an outrage upon morality altogether intolerable on the part of a father. PART I. OBLIGATIONS STRAINT OF LI Inst. i. 1, 56. The next class of obligations under this head are those which imCHAPTER I. pose undue restraints upon personal liberty. These are no doubt of improbable occurrence now; and it is only necessary to point out the IN UNDUE RE- authorities for holding that they are not binding in law. According BERTY, ILLEGAL. to Erskine, marriage, and the liberty of the subject, are favourites of the law. In the case of Caprington v. Geddew, 24th March 1632, a bond by a party engaging to serve another all his life, was found lawful and sustained; but there is no likelihood that such a doctrine would now be countenanced. In the earlier case of Wedderburn v. Monorgun, 6th March 1612, a contract, whereby a party subjected himself to perpetual banishment, was not sustained; and in Allan and Mearns v. Skene, December 1728, fishermen having bound themselves for fifty-seven years to be as adscriptitii or villani, astricted continually to their respective boats, so that none of them during that time could remove from Johnshaven, or even from one boat to another, was reduced as too great a restraint upon natural liberty. M. 9453. M. 9454. COLLIERS AND M. 9455. PROFESSIONAL OF TRUSTEES, FACTORS. We may refer here to the former condition of Colliers and Salters, who, by the law itself, without any paction, were bound by merely entering upon work in a colliery or salt manufactory, to perpetual service in it. By the Act 15 Geo. III., cap. 28, this bondage was relaxed from and after 1st July 1775-an object which was more effectually accomplished by the subsequent Statute of 39 Geo. III., cap. 56, passed in the year 1799; and such workmen have now the same rights and freedom with respect to their service which the law accords to others. The repugnance of the law to restraints upon personal liberty does not extend to such restrictions as persons may, for adequate consideration, reasonably impose upon themselves, with regard to the practice of their trades, or otherwise. Thus in Stalker v. Carmichael, 15th January 1735, a stipulation in a contract between two booksellers, that, if at the end of three years either of them should refuse to renew the contract, he should be debarred from bookselling within the city of Glasgow, which was then judged too narrow for two booksellers at a time, was found not to be contrary to the liberty of the subject. It only remains to notice here a recent change in the law, which REMUNERATION materially affects the position and duties of Law-agents, when comAND JUDICIAL pared with an extensive and unhesitating previous practice. I refer to the competency of one of a body of trustees to act in the capacity of factor or agent for the trust. No doubt with regard to the legality of this practice existed until within a very recent period. It had become a matter of familiar occurrence, that a party, having confidence in his Law-agent, confidence in his skill and in his discretion and prudence, selected him as one of his trustees, and that, not for the purpose of excluding him from the office of factor or agent, but PART I. on the contrary in the view of thus securing more effectually the benefit of his agent's services in conducting his affairs. This usage CHAPTER I. was, no doubt, inconsistent with the views upon which an opposite practice had long subsisted in England. The English practice is founded upon the principle of securing to the trust the benefit of the trustee's superintendence and control over the factor or law-agent, where the assistance of such a person is requisite, all the benefit of a vigilant superintendence on the part of trustees being considered to be lost, when these offices are held by the trustees themselves. Upon this ground it has long been settled in England, that the office of trustee is inconsistent with that of factor, or cashier, or lawagent. In the case of Montgomerie v. Wauchope, 4th June 1822, it 1 S. 453. was expressly pleaded, that no trustee is entitled to make profit of the management of the trust; and the opinion of the Court was, that it is consistent with the law and practice of Scotland, for tutors, curators, and trustees, to nominate one of their number, especially one who has been the family-agent of their constituent, to act as their agent and cashier, and that he is entitled to the usual remuneration. This case, however, came under the notice of the House of Lords in the appeal, Home and Milne v. Pringle and Hunter, 22d 2 Rob. App. June 1841; and the Lord Chancellor, after referring to the case of 384. Montgomerie, in which, although the Judges expressed their opinion, yet no decision had been pronounced upon this point, and after stating the practice in England, said,—“ I should be sorry to give any sanction to a contrary practice in Scotland. There can be no reason for any difference in the rule upon this subject in the two "countries. The benefit of the rule, as acted upon in England, is "not disputed; and, as there is no decision to the contrary, there "cannot be any reason for sanctioning a contrary rule in Scotland." Subsequently, in Seton v. Dawson, 18th December 1841, the Lord 4 D. 310. Justice-Clerk (HOPE) stated, that he would never be prepared "to "sanction the legality of payment of a salary or profit to one of "trustees to be factor;" and in Cullen v. Baillie, &c. (Clyne's Trus- 8 D. 511. tees,) 20th February 1846, although there was no express decision upon the point, the Lord Justice-General (BOYLE) intimated, that he would be regulated by the opinion expressed in the House of Lords. Lord MACKENZIE considered that opinion to be so forcible, that no decision could bind the Court to decide inconsistently with it, and that the rule should be known by all men of business; and Lord JEFFREY gave his opinion in accordance with the Lord Chancellor's, adding that, "whenever the legality of such an appointment "shall come into question in this Court again, the authoritatively expressed opinion of Lord CoTTENHAM will be deliberately and solemnly recognised." It may be held, therefore, as a rule virtually settled, that the Court will not sanction the appointment of a trustee |