PART L. as factor or cashier, to the effect of finding him entitled to remuneraCHAPTER I. tion.* 16 D. 721. 14 D. 621. 12 D. 1010. 17 D. 1146. " * In the case of Ommanney v. Smith, 3d March 1854, the defender was sole accepting executor under the will of Mr. Cranstoun; and the testator, on the statement that the defender was a professional gentleman, "and must devote much of his time to my affairs "after my death, as he will be the acting executor," requested his acceptance of £100, as a mark of gratitude, though not an adequate recompense for the zeal evinced by him in regard to the testator's affairs. The defender accepted the office of executor, and at the same time conducted all the professional business of the trust. In his accounts he both charged commission, and also stated the usual charges of an agent for trouble and business in the executry affairs. To these charges the residuary legatees objected; and the Lord Ordinary --upon the principle of the cases of Borrie, &c., (Finlay's Trustees) v. M'Omie, 6th March 1852, and Bon Accord Marine Assurance Company v. Souter's Trustees, 13th June 1850— found that the defender, in stating his accounts, was not entitled to claim commission, or other law charges, so as to make profit from his intromissions with the executry funds, or from his management of the estate, or business connected therewith. But the Court altered this judgment, upon the ground that the defender had acted as agent for the trust, in the knowledge and with the consent of the pursuers, the residuary legatees, and that it was their understanding that he was to receive professional remuneration. The Court, therefore, found him entitled to make all the usual and proper charges. LORD RUTHERFURD remarked:-“ 1:-" If a trustee take employment upon his own responsibility, or on that of his colleagues, it may be right to say he is not to make a profit by the management of the trust-estate. But if a party, named a trustee on account of a knowledge (it may be) of "the trust, is requested to continue as agent in the management, he being a professional man, can it be doubted that in his accounts against the residuary legatees, that is as good a charge as against any other employer?" The LORD PRESIDENT observed:-" We must "look not only to the general law, but to the particular circumstances of the trust; and if "the truster himself has said that the agent, appointed by him trustee, shall also act as agent for the trust, or if the beneficiaries say so, that would be the law of the trust. If "the residuary legatee says so, that also would be a case in which objection would be " removed. . . Therefore, in such a case, he is not entitled to take the services of the party as agent without giving him the usual professional remuneration. He was bound "to state the objection at the beginning, if he was to state it at all." The case of the Bon Accord Assurance Company was to the following effect :-By the trust-deed of Mr. Souter, his trustees were declared to be liable each for his own actual intromissions, and it was provided that they should not be further liable for any agent to be appointed by them, than that he was reputed responsible at the time of his appointment. There was no power to appoint any one of their own number to be factor or agent. Messrs. Adam and Anderson, however, who were themselves trustees, managed the trust affairs as factors and law-agents, and charged a commission on their whole intromissions at the rate of 5 per cent. An objection to this charge, made by a creditor of the truster, on the ground that no trustee is entitled to make a profit by any act done in connexion with the trust, was sustained. A similar decision was pronounced in the recent case of Fegan v. Thomson, 20th July 1855. In the case of Findlay's Trustees,-A writer, who had by the trust-disposition of a client been named not only a trustee, but factor for the trust with a suitable remuneration, was employed by his co-trustees to act as agent for the trust in certain judicial proceedings. It was held, that the trustees were entitled to take credit in their accounts for payment to the factor both of a commission or factor-fee, and also of the expenses incurred by him in conducting the judicial proceedings; a distinction having apparently been recognised, on the authority of English cases, to the effect that, where trustees, being more than one in number, employ a co-trustee to conduct judicial proceedings, in which some law-agent must necessarily be employed, they are not, in accounting with the beneficiaries, to be held personally liable for the remuneration of the agent. In the same case, it was held by the Lord Ordinary, and acquiesced in, that the factor was not entitled to make charges, as law-agent, for profit, in respect of his trouble in the extrajudicial management of the trust affairs; but that he was entitled to charge his outlay, including clerks' fees. See the case of Flowerdew, infra, p. 63, note. PART I. This change in the law and practice is in accordance with the general principle, whereby persons in a fiduciary position are pre- CHAPTER I. cluded from making any charge in the way of profit. There is an exception from that rule in the case of a tutor ad litem, that officer, unlike other curators, being entitled to professional remuneration; Pirie v. Collie, 4th March 1851. 13 D. 841. There is also profit incident to the office of factors judicially appointed; but these being paid their commission, are not entitled to professional charges besides; ex parte Rennie, 26th April 1849. 6 Bell's App. Judgment applied; Morrison v. Rennie, 23d November 1849.* 422. 12 D. 163. ВАТН. We may here refer to the objections which have been stated to DEEDS EXEdeeds, on the ground of their having been executed on the Sabbath- CUTED ON SABday. A distinction is made in the law of Scotland upon this subject, between judicial acts, including not only the acts of courts of justice but executions of diligence by messengers, (with the exception of warrants against persons in meditatione fuga, which are allowed ex necessitate,) and the acts of private parties; judicial acts being null, but the voluntary acts of private parties held binding; the former being prohibited partly by statute and partly by the extension of the same rule to other public acts, while the deeds of individuals are left upon their private responsibility as regards the observance of the Sabbath; for the Law permits that to be done privately which, in public matters, it acknowledges to be wrong, and prevents; fieri non debet, sed factum valet. So in Duncan v. Bruce, March 1684, M. 15,003. it was held not a relevant objection to a bond, that it had been subscribed on Sunday; and in Elliot v. Faulke, 20th January 1844, it 6 D. 411. was held no objection to a bill that it was dated on a Sunday. A well-known case on this subject is that of Phillips v. Innes, 19th 13 Sh. 778. May 1835, decided upon appeal, 20th February 1837, in which a 2 Sh. & M'Lean, barber's apprentice, although bound "not to absent himself from his App. 465. "master's business, holiday or week-day, late hours or early, without "leave first asked and obtained," was held not bound to attend his master's shop on Sunday mornings, in order to shave his customers, that being a matter of convenience, but not of necessity or mercy. The progress of this case exhibited a remarkable alternation of judgment, the magistrates of Dundee, before whom it commenced, having * Where an agent had undertaken the office of judicial factor, the Court refused to sustain his account for business done by him as law-agent, as a charge against the estate in addition to the usual commission; Flowerdew, 22d December 1854. The Court, in this 17 D. 263. case, allowed those items in the business-account, which consisted of actual outlay; "but "the profession should understand that we are not prepared to say that we shall ever again "go even that length." The question is at present before the Court, whether a judicial factor is entitled to derive profit indirectly from his office, over and above his commission, by employing the firm, of which he is a partner, to perform the necessary law-business connected with the factory. The decision of this question will be noticed in the Appendix. PART I. CHAPTER I. decided against the apprentice, while Lord JEFFREY, as Ordinary in the Court of Session, altered their judgment, to which, however, the Inner House returned; but the Court of Appeal, in accordance with the unanimous opinions of the Lord Chancellor COTTENHAM, Lord WYNFORD, and Lord BROUGHAM, decided the case finally in favour of the apprentice's exemption from work on Sunday. This decision is founded entirely upon the Statutes 1579, cap. 70, against labouring on Sabbath-days, and 1690, cap. 5, ratifying the Confession of Faith, of which the 21st chapter relates, in its 7th and 8th sections, to the sanctification of the Sabbath. The mind cannot be turned to this subject without adverting for a moment to professional habits, in relation to the observance of the Lord's Day. This is not the place for treating of that subject on its own peculiar and sacred grounds, but it cannot be wrong to refer here to the experience of Sir Matthew Hale, who traced an unfailing correspondence between a well-spent Sabbath and a successful week's business-a testimony which cannot but be corroborated by those who train themselves to abstinence from secular pursuits and secularity of mind upon the Sabbath, and a faithful performance of the duties of that day, and who find thus not only an unspeakable immediate benefit, but are providing,—by this grateful rest and reinvigoration, and the formation of habits of self-control, and other qualities which may not here be enlarged upon,-the best security for the successful discharge of their professional duties, and the promotion of their secular interests. We have now considered those objections of a preliminary nature which prevent deeds from being effectually granted, first, on the ground of incapacity in the granter or receiver, and secondly, on the ground that the matter of the deed is such as the Law does not permit to form the subject of contract. There is a third class of objections to deeds, which, as they are fundamental in their nature and effects, it will be convenient to consider in this place. These are in 3. Objections to Deeds, founded upon the want of proper consent, consequence of error, fraud, and force or fear.-It will assist us to see the precise nature and force of the objections now referred to, if we remark that, at an early period in the history of Jurisprudence, all deeds went by the general name of Voluntates, i.e., simply the parties' will or pleasure with respect to the matter of the deed. This is a circumstance strongly illustrative of the free consent requisite to the validity of deeds. The principle of this title, viz., that every contract and deed shall be the fruit of a free act of the granter's will, is retained by us, although the name is now limited to being synonymous with "testament." From this doctrine, that a man's contracts PART I. CHAPTER I. must be the fruit of his own free will, it follows as a corollary, that the law will not give effect to such deeds as are granted under error with respect to the essence of the matters to which they relate, or which are procured from the granter by fraud practised upon him, or are extorted from him by force or fear; for, where there is error in essentials, the deed is expressive of the granter's will in reference to his own erroneous conception, and not with relation to the real matter in hand; where fraud is practised, the will to grant the deed is founded upon the error which the fraud engenders; and, when force is used, the deed has its immediate cause in the will, not of the granter, but of the coercing party. It is unnecessary to enlarge upon a doctrine which commends itself to the understanding upon principles so just and obvious, and which, accordingly, must find a place in the jurisprudence of every enlightened country. In the formularies of Marculfus, compiled in the eighth century, we find the absence of force and of error generally set forth in the preamble of deeds, thus :-"Constat me, nullius coactum imperio, neque imaginario Barbarorum "jure, sed propriæ voluntatis arbitrio, vobis vendidisse," &c. A Leges, ii. 235. declaration to the same purpose is contained in a writ dated 1533, cited by Mr. Ross :-" Ego non vi aut metu ductus, nec errore lapsus, Vol. ii. p. 246. seu dolo circumventus, sed meá merá purá et spontaneá voluntate," &c. We shall refer to a limited number of decisions by way of illustration. 66 UNDER ERROR in essentialibus. And first, with regard to error,-A mistake merely with regard to DEEDS GRANTED accidental qualities will not suffice to set aside a contract; it must be an error in the very essence of the contract, regarding either the person contracted with or the subject-matter. The distinction between what is essential, and what is accidental or circumstantial, is well illustrated by the example in Stair:-" As if one married Sempronia, I. 9, 9. supposing she were Maevia, the marriage hath no farther progress (but by subsequent consent), and it is void. But if he married Sempronia, supposing her to be a virgin, rich, or well-natured, which were the inductives to his consent, though he be mistaken therein, "seeing it is not in the substantials, the contract is valid." An example of essential error with regard to the person contracted with occurs in the case of Love v. Kempt's Creditors, 24th June 1786, where M. 4948. a man had furnished goods to a son, upon a guarantee believed to be authorized by his father. This, however, not being the case, the contract was annulled, and the goods restored. And, for an instance of error in the subject-matter of the contract, we may refer to the case of Hepburn & Sommerville v. Campbell, 4th July 1781, where a M. 14168. party had bought lands according to a rental, which applied only to two acres and a half; but, after the sale, it was discovered that, although the upset price had been fixed with relation to the rental of that limited extent, the subjects, as described, really amounted to PART I. CHAPTER I. ERROR, conta. 13 D. 844. 15 D. 646. seven acres. The purchaser contended that he was entitled to the whole seven acres, these having been specially enumerated; but the Court found that the sale was effectual only to the extent of two and a half acres; but that it was optional to the purchaser either to hold his purchase, or to reject the same as he should think fit. In the case of Hepburn there were clear data for ascertaining what was in contemplation of both parties, and so for establishing the error. But where the sale is of things, so described as undoubtedly to include all falling within the description, the seller will not be heard afterwards to plead ignorance with respect to any of the things so comprehended. So, in a general sale of all the articles per aversionem on certain premises, that had been used as a white lead and colour manufactory, the advertisement of the sale referring to paints, varnishes, &c., it was held to be no ground of reduction, that certain vats, admittedly included in the sale, were afterwards found to contain a valuable quantity of white lead, the existence of which was unknown to either party; Dawson v. Muir, 6th March 1851. In the report there is a reference to the case, put by Pothier, of a golden tripod found in the net, when the cast has been purchased, and which would not be held to go to the purchaser. Such a capture could not be held to be in the contemplation of the parties; and Lord FULLERTON remarks, that the case of the jactus retis would be differently decided, where the quantity of fish was unexpected, or the quality unusual, the produce being still ejusdem generis. Reference may also be made to the case of Black v. Cullen, 1st April 1853, which is a remarkable example of effect denied to a deed, on the ground of error and concealment. A party had authorized his broker to buy shares for him up to a certain date, which the broker on 15th October announced that he had done. A transfer of shares, signed by the seller on 6th November, was afterwards signed by the purchaser, the price paid, and the transfer retained twelve months by the purchaser. It afterwards turned out that the shares transferred were not those the purchase of which had been advised on 15th October, but others bought on 6th November; while, on 3d November, a call had been made on all the shares of the company, which fact had not been communicated to the purchaser when he took the transfer, nor was he made aware that the transfer did not apply to the shares first purchased. The purchaser having refused to register himself as proprietor of the shares contained in the transfer, it was held that the seller could not compel him to do so, though the seller was not cognizant of the broker's misconduct in substituting the one set of shares for the other; and that the acceptance and signing of the transfer, and payment of the price, did not infer acquiescence by the purchaser in the second purchase, in respect he was not acquainted with the fact of the call, or of the shares being different from those first ordered and bought. |