to the exaction of duck from the pabile by a private party at his own rand, in return for accommodation be chooses to mire Chem by erecting piera on a navigable arm of the sea or pa De Inch. The respondents raise no objection to these does; int the Court la nde, on the other hand, to be understood as giving any opinion as to the legality of och exactions, or as intimating that ang Levernce by parties in the levy of such does in return for fal accommodation afforded to them, is any ground co willen a court of law can proceed for holding aneh exaction to be legal. The respondents, again, do not complain of these piors as any interference with the navigation of these arms of the ve On the contrary, they claim to use them as valeabie and important landing places, prepared and weil adapted for their traffic in landing and embarking passengers. The #pender alleges that he has obtained the sanction or consent of the Admiralty, in exercise of the prerogative of the Crown, to these piers, as not interfering with the navigation of these arms of the sea These licenses, and the representations on which they proceeded, we have not seen. That they recognized an uncontrolled power as proprietor on these plers, is not Tkely, but at least each content on the part of the Crown tends to stamp more strongly on them the character of public piers. Bat equally on this point the Court intimate no opinion as to the right of a party to erect any such pier on the shore of a navigable portion of the sea coast, without proper grant and authority, from whatever quarter such authority may competently issue. Bot at present we assume what the suspender himself sets forth. And on his shewing, we are of opinion (taking the case as a prins free case in the Bill Chamber, that a party who balde piers in such situations, avowedly for the accommodation of all who frequent them, and opens them to all who resort to them, on payment of dues, and levies dues from all who come to them, in order to derive a revenue from the use of these by the public, must be taken to make these piers public piers, so far as his position and obligations are concerned that in respect of, and in return for, this levy of dues, he entitles all and andry to go to and use these piers, and that he has no more right to exclude any of the public than a burgh in possession of a grant of free port. That he built the piers to induce the public to come there as a source of revenue to himself, and at his own hand, without authority levies dues from the public, cannot put him in a better situation than the owner of a regular port, or harbour, or pier, established by competent authority. On his own shewing he has placed himself in the situation of being liable in duties, and lying under burdens, by reason of and in return for the public levy of dues, and must submit to the consequences of such piers being open and patent to the public, in the same way as if he had legal authority for the exaction of dues. On the shewing of the suspender in this record, he probably has subjected himself (though I give no positive opinion on that point, in liability to actions for renewed accommodation in proportion to the increase of resort to the pier, and of the revenue drawn therefrom, and it may be to maintain the pier whether the revenue is sufficient for that purpose or not, so that he could not drop any of them, or allow any of them to fall into disrepair.

The suspender not supporting his first plea in the general terms in which it is stated, or maintaining that he can exclude the public from these piers, still says that he can exclude resort to them on Sundays, and that he is not bound to have them open on that day.

I admit that such is a very natural and very laudable object for the pursuer to desire to obtain in the regulation and management of these piers, and I quite enter into the feelings which are averse to a crowd of idle passengers from great public towns being poured out at Arrochar in the quiet of a Scotch Sunday, close to the parish church of Arrochar, or on the banks of the Gareloch, and converting these places into the resort of, to say the least, the idleness, it probably will be of the coarse enjoyments and noisy or dissipated revellings, of those who so spend the Sunday-for, for one who goes there for the enjoyment of pure air and elevating scenery, there will be fifty who go only to carry on in such places the habits of an ill-spent idle town Sunday, free from the restraints which, in many respects, the contact with neighbours who know them may impose. But the primary question is, can a pier-a public landing-place, so opened to the public, and at which dues are levied for the use of it by the public, be closed on Sunday by the party drawing such revenue at his own hands, on ground that he is the proprietor of the pier? The sus

3

pebler may make this cat under the passed note, or in a declarator, and therefore we give no fal opinion on the point. But as the suspender grisses that plea upon us as a ground for now grasting the interior, the Court are of opinion, that, on his own stewing, the prima facie case is against him. He has no authority for making byelaws against the public, from whom he draws this reverse. It may be very proper for him to obtain such authority; but when a pier is opened for public resor, and does level, we cannot, on any argument or authority yet addressed to us. hold that the party is in a position to assert his uncontrolled and absolute right as proprietor, and to announce that, on Sunday, these piers are no longer public. His postion, on his own shewing, bars any such assertion of an absolute right as proprietor. The most plausible way of parting his case is, that he is not bound to serve the pier on San Lays. I am not prepared to say that he may not be under an obligation to do so to the extent to which any service is necessary, although I give no final opinion upon it. In deciding this question, we must not omit the consideration that we must look to the interests and situations of other parties than those who crowd steam-boats on Sundays, on such excursions-the part of the public whose interests are certainly the least deserving of consideration. We must look to those who, for necessary and unavoidable objects,—to see dying relatives, to reach home rather than remain in towns when their business is done, to cratinge long and necessary travelling by public roads, to which these piers give immediate access (and at Arrochar there are two public roads at least, at the very end of the pier, which form two great entrances to the Highlands), resort to such piers, say in beats hired for the purpose of expediting them in such of jects; and we must look to the case of vessels driven in by stress of weather, or fors, and glad to find a landing place anywhere, say one of the passage boats to the Clyde from other parts of the king im detained one or two days by fogs—as is said to have happened within the last few days-not knowing where they are going, groping about, or driven by weather towards any of those piers on Sundays, and desirous to land their miserable passengers, and to take shelter for their vessels. The suspender's plea would give the right to deny access to all to his pier, and the answer, if attempted, that he would only exclude such as resort in this steamer, only brings out the more clearly the repugnance between his uncontrolled and arbitrary exercise of his alleged rights as proprietor, and of the exclusion of some parties, and the admission of others, to the fact of a pier resorted to by the public, and at which revenue is drawn from the public. The Court must recollect that there is no public law which shuts up piers, harbours, and highways on Sundays. There is no law against travelling on Sunday by land or by sea, entitling toll-keepers to shut their gates, and harbour-masters to exclude vessels on Sundays, and deny all passage or access. There is no law which prohibits sailing down the Clyde on Sundays. There is no law which prohibits vessels, in all circumstances, from landing passengers on Sunday. The applica tion for such prohibition here rests exclusively on the suspender's alleged right as proprietor, and against any such right we are at present of opinion that the public use of the piers, and his levy of revenue from the public, by the exaction of dues for such use of the pier, is prima facie an answer quite sufficient to meet his application for an interdict in the Bill Chamber. If the suspender says. I will not provide attendance on Sundays,-I will assume further (though that may be a doubtful point) that he is not bound to give such attendance, but what will be the result? He will lose his dues, which I take for granted he would not draw on Sundays, for his own benefit, and the respondents do not require him to give attendance. But closing the gates and shutting the piers on Sunday is a very different matter. I must add, however, that I include in shutting up the piers, the withdrawal of the usual and necessary means of landing provided for the use of the public, and at their service at all other times. That he would no more (as we are at present advised) be entitled to do than to close the piers. I only mention this to avoid misconstruction of our opinion, and to exclude devices which may lead to other such unseemly and scandalous profanation of the Sunday as both parties seem to have been guilty of.

Without, therefore, committing ourselves to any final opinion, but viewing the matter as we are compelled by the suspender to take it up in reference to a demand for an interdict de plano, we are of opinion that, on his own shewing, he has not made out such a prima facie case in support of his rights as proprietor,

in the circumstances of the case, as to warrant us granting the interdict he asks for. There is a portion of the prayer not applicable to the piers, but generally asking for interdict against landing passengers on any part of the property of the conplainer. But 1 do not think we are called upon to deal specially with that part of the application-1st, Because the suspender has stated no such case of general landing along his property, and the respondents desire only to resort to his piers; 2dly, Because we might be interdicting the use of large portions of the sea coast without any facts before us; and, 3dly, Because we might prevent the respondents from landing a private party, even one of the respondent's own feuars, opposite his feu. The Court, therefore, are of opinion that this note must be refused.

It is very probable, that to many not conversant with legal discussions, and not able to appreciate the stern obligations of judicial duty, this judgment will be thought to proceed on very cold legal views, which such parties may think far too narrow and technical for the disposal of such questions. And it is true that the judgment does proceed on such cold legal grounds. But the paramount duty in the judgment-seat is to resist all matters of mere impreseion, and to exclude all considerations, except those which directly affect the decision of the dry point of law, to which, in the opinion of the Court, the discussion is truly reduced-and we have so dealt with this case.

Lord Cockburn said the Lord Justice. Clerk had intimated the opinion of the Court, and therefore he did not require to enter into the case at all. He (Lord Cockburn) was not satisfied of the right of any proprietor to appropriate part of the public shore for the erection of a pier, and he thought it would be found that there was a radical defect in this gentleman's title to put even a single plank there.

Lords Murray and Wood also concurred.

Interdict refused.

Lord Ordinary, Robertson.-Act. Dean of Faculty (Inglis), Patton; Tawse and Bonar, W.S. Agents-All Neaves, Young; Julin Ross, S.S.C. Agent.-R. Clerk-F H.)

16th December 1853.

FIRST DIVISION.

DAVID GUTHRIE, Appellant, v. Mrs. ISABELLA GUTHRIE or FAIRWEATHER and Husband, Respondents. Process-Factor Loco Tutoris-An objection was taken in the accounting of a factor loco tutoris, who had allowed part of his pupil's estate to remain invested in trade, that he should account for a share of the profits, and not simply allow interest on the sum as a loan. The Lord Ordinary, before answer, remitted to ascertain whether any profits had accrued from the business. The Court recalled the interlocutor, and remitted to determine first the general question as to liability for profits or not. Observed, that it is inexpedient to order inquiry into disputed matter of fact, where the settling of the fact will not supersede the legal question.

David Guthrie, merchant in Brechin, was factor loco tutoris to the children of his deceased brother, John. The respondent is one of the children, and the present question arose in the audit of the factorial accounts. At John's death, in March 1828, he was a partner along with his two brothers, of whom the appellant is one, in a grocery business in Brechin, and £1600 of his funds were invested in it. In making out his accounts the factor debited himself with £5 per cent. per annum on that sum as interest. The respondent objected, that as the sum was invested in trade, and the representatives of the deceased would have been liable as partners, they were entitled to a share of the profits, and demanded that the accounts should be made out upon that footing.

The Accountant-General made an interim report of the case to the Lord Ordinary, who pronounced the following interlocutor:

"Having resumed consideration of the debate upon the

interim report of the Accountant of Court, with the objections and answers, productions, and whole procedure -Before answer, remits to the accountant to examine into the affairs of David Guthrie and Sons, while carrying on business as grocers in Brechin, and to report whether any and what sum would be payable to Mrs. Isabella Guthrie or Fairweather, as one of the children of the late John Guthrie, in name of profits realized on the said business, in the event of her being found entitled to a share of such profits, with such explanations of matters of fact, or otherwise, as the accountant may think necessary.

"Nots. The parties confined themselves at the debate to the matter referred to in the foregoing interlocutor. In the course of that debate the factor denied or declined to admit that any profits were realized on the business in dispute. If this be so, no question of liability will of course arise. But supposing the fact to be otherwise, the Lord Ordinary is not prepared to hold that the factor, if he risked the pupils' money in the business, may not be accountable for a share of the profits, although, as was contended at the bar, he might not have been entitled to debit the pupil with a share of the loss had loss arisen. In any view, the Lord Ordinary thinks the facts ought to be ascertained before the discussion goes farther." The factor appealed.

At advising

Lord Justice-General.-I do not desire to hear more argument in this case. It strikes me the course the Lord Ordinary has adopted is not the most expedient. The question here is as to the audit of factorial accounts, and Mr. Monro says, that if his clients' money is used in trade, they are entitled to a share of the profits. Now, the Lord Ordinary here has remitted to the accountant to report what sum of profits would have gone to Mrs. Fairweather, if profits shall be found due. The remit is merely as to the quantum. If the law be unsettled the fact cannot assist the law at all, and to investigate it would be surely an unusual and out-of-the-way proceeding. There is a very nice question of law to be decided, which the settling of the fact ordered will not supersede. Suppose her not entitled to any share of these profits, what right has she to overhaul the whole partners' affairs? It might be important, if there was a dispute as to what was the fact, whether the money was employed or not. But that is not disputed here.

Lord Ivory.-I agree with your Lordship. The Lord Ordinary has just inverted the expedient course in this case. The result here is this: If you can shew the company is insolvent, it is needless to inquire further; but that is supposing the company are here, while they are not here. The only party here is the factor, and can we rummage into the books of the company to determine whether the factor is liable for profits or not? There may be malfeasance on the part of the factor, but the company have nothing to do with that,-they may not be liable thou h the factor himself may. And ought we not first to determine whether the party has a title to ask this investigation? Lord Robertson concurred.

Lord Rutherfurd.—I have no doubt, and never had any doubt in this case. I think it is quite clear. It may be a satisfaction sometimes to ascertain the real interests of partics in a suit before it goes on, but I am afraid we cannot act on that. Here I should have said if there was an action on the part of the children claiming to be partners, it might be of advantage to determine if any profits exist, but you must first determine the copartnery. But there are many points here to be attended to. This is not the employment by the factor

of a pupil's money entirely in his own business, it is the continuance of the money in a business it was already engaged in. It may have been necessary for the safety of the fund itself that it should continue. It does not follow that these pupils are to get a share of the profits. The copartnery may not be liable they may not have committed any misfeasance. All we have to do with is the liability of the factor, and that must first be ascertained. The course adopted by the Lord Ordinary appears to me very unadvisable both for the Court and the parties.

Recal the interlocutor, and remit to proceed with the cause on the general question of liability, reserving all questions as to expenses. Lord Ordinary, Deas.-For Appellant, Penney; Graham Binny, W.S. Agent.-For Respondent, Monro; Douglas and Johnston, W.S. Agents.-L. Clerk.--(G.R.O.)

16th December 1853.

SECOND DIVISION.

LADY BAILLIE, Pursuer, v. PATRICK BARON SETON & WILLIAM BAILLIE SETON, Defenders. Title to Sue-Title and Interest Declarator - Process-A wife, founding on her marriage-contract, brought an action to have it declared that certain funds had vested in her children, under certain conditions, in consequence of certain events-. Held, that as the summons contained no conclusion in the pursuer's own favour, she had no title or interest to ask the Court to pronounce a judgment on the question.

This was a declarator brought by the pursuer to ascertain her own powers, and the rights and interests of her children, under an antenuptial contract between her and her present husband, referred to by the Lord Ordinary.

The conclusions of the summons were as follows:

"Therefore it ought and should be found and declared, by decree of the Lords of Council and Session, that the defenders, William Baillie, James Dennistoun Baillie, Robert Baillie, Margaret Dreghorn Baillie, Margaret Colquhoun Baillie, Thomas Baillie, Janet Sinclair Baillie, Alexander Hope Baillie, Mary Isabella Baillie or Seton, Elizabeth Peniel Jane Baillie, Helen Jare Baillie, and George Augustus Frederick Baillie, all children of the said Sir William Billie and the pursuer, Lady Baillie, are, all and each of them, already vested with, and have right to, first, a share or portion of certain funds, effects, estate, and property settled upon the heirs of the body of the pursuer, Lady Baillie, by a contract of marriage, dated 24th April 1815, entered into betwixt the pursuer and the said Sir Williamn Baillie; and, second, a share or portion of one-third of the residue of the trust-estate of the late Marion Dreghorn, provided by her trust-deed, dated the 25th August 1814, for behoof of the heirs of the body of the pursuer, Lady Billie; the right of the defenders to said shares or portions being always subject to the power of distribution or apportionment conferred upon the pursuer, Lady Baillie, by the said contract of marriage and trustdeed; or it ought and should be found and declared, that all and each of the said defenders are at least already vested with, and have right to, a share or portion of the funds, effects, estate, and property settled upon the heirs of the body of the pursuer, Lady Baillie, by the foresaid contract of marriage: And farther, or at least it ought and should be found and declared, that all and each of the said defenders who have attained majority, or been married, are now vested with a share or portion of the residue of the trust-estate of the said Marion Dreghorn, provided by her said trust-deed for behoof of the heirs of the body of the pursuer, Lady Baillie, and that such of the other said defenders as may hereafter attain majority, or be married, will become vested with, and have right to, a share or portion of the said residue, on their respectively attaining majority, or being married; said right, however, being always subject to the power of distribution or apportionment conferred upon the pursuer, Lady Baillie, by the said contract of marriage and trust-deed." The action called as defenders the pursuer's children and her grandchildren, the two sons of her married daughter, Mrs. Seton.

The action was resisted by the two grandsons and their father, as their administrator-in-law, who pleadedAccording to the meaning and construction of the mar riage-contract and trust-deed, no right in the funds and property set forth vested in any of the children of the pursuer; and such right only belonged to those children who should survive the pursuer, and the issue of predeceasing children.

The Lord Ordinary pronounced the following interlocutor and note, which sets forth the provisions of the trust-deed on which the question turned:

"Finds that the defenders, who are children of the pursuer, Lady Baillie, are, all and each of them, already vested with, and have right to, first, a share or portion of certain funds, effects, estate, and property settled upon the heirs of the body of the

pursuer, Lady Baillie, by a contract of marriage, dated 24th April 1815, entered into betwixt the pursuer and her present husband; and, second, a share or portion of one-third of the residue of the trust-estate of the late Marion Dreghorn, provided by her trust-deed, dated the 25th August 1814, for behoof of the heirs of the body of the pursuer, Lady Baillie; the right of the said defenders, the children of the pursuer, to said shares or portions being always subject to the power of distribution or apportionment conferred upon the pursuer by the said contract of marriage and trust-deed; and being subject also, in terms of the trust in the contract of marriage, to the provision that the eldest child, in the event of his or her succeeding to the estate of the father, should forfeit his or her interest in the said trust funds, effects, estate, and property, and being subject also to the rights of the issue of the pursuer, Lady Baillie, in any subsequent marriage: And decerns and declares accordingly; but finds no expenses due, and decerns.

"Note.-The object of the present action, brought at the instance of Lady Baillie of Polkemmet, is to ascertain her own powers, and the rights and interests of her children, under an antenuptial contract of marriage between her and her present husband. The contract is dated April 24, 1815. Of the mar riage several children have been born, all of whom, with the exception of three, have attained majority, or are married. They are all called as defenders, along with the children of Mrs. Seton, a married daughter: and the only defences given in are by the children of that daughter, and their father, as their ad ministrator-in-law. It is unnecessary at present to recite the terms of the contract of marriage, but it may be as well to ob serve in the outset, that the question mainly regards the period at which, and the conditions under which, the provisions to the children vest by that contract. The pursuer maintains that the children of the marriage are already vested, or, at all events, that such of her children as have reached majority, or have been married, are vested, subject to her power of distribution and apportionment. The defenders, the grandchildren, maintain that no right or interest has yet vested in any of the chil dren, and that, till the pursuer's death, no right can vest.

The pursuer and her mother, Mrs. Margaret Dreghorn or Dennistoun, were parties on her side to the contract of marriage and one portion of the estate conveyed by the pursuer consisted of a third of the funds or property belonging to her mother, or, in the mother's option, of £10,000. The other property of the pursuer conveyed in the contract was such as she might suc ceed to otherwise through her mother, or through her sisters of her aunts, or through an uncle, Mr. Dreghorn. All this pro perty was conveyed in trust. The trustees hold the property; and the only question is, for whom do they hold? The provi sion as to the liferent interest of the two spouses seems to be without difficulty. The pursuer has the liferent, for her liferent use allenarly, of the whole funds, and her husband, in the event of her predeceasing him, has a liferent, for his liferent use al lenarly, to the extent of one-half of the annual proceeds. The question regards the fee.

"With respect to the fee, the trust provides- And the said trustees shall hold the fee of the whole premises for behoot of the heirs of the body of the said Mary Lyon Dennistoun, in such proportions as she shall appoint, by a writing under her hand; which failing, in such proportions as the said William Baillie, younger, shall appoint, by a writing under his hand which failing, equally among them.' It cannot be doubted that the terms, 'heirs of the body of the said Mary Lyon Dennistoun,' mean generally her issue, though not necessarily the issue of that marriage. But the defenders contend that the word 'heirs' necessarily implies the decease of the pursuer, and must be limited to her surviving descendants, as it is upon ber death only that her 'heirs' can be ascertained.

The Lord Or

dinary does not say that this remark is without force, but he cannot consider it as in any degree conclusive. There are many cases, such as that of Matthew v. Scott, Feb. 21, 1844,' in which the words, 'heirs of the body,' have been held to mean simply 'children.' But what is of more importance, in this very deed,

the parties who, in the clause just quoted, are

described as heirs

of the body,' are termed sometimes issue,' sometimes 'children of the marriage,' so as to destroy the effective force of any argu

dren or descendants.

chil

goes on with various provisions, beginning-Provided always, "After this general direction as to holding the fee, the deed that in case of the said Mary Lyon Dennistoun entering into a

second marriage during the existence of issue of this marriage, then one-half at least of the fee of the trust funds and estate shall, after the death of the said Mary Lyon Dennistoun, devolve to the issue of the present marriage.' Then immediately follows another provision :-' And further, providing that, in case of there being more children than one of the present marriage, and of the eldest succeeding to the lands and estate of the said William Baillie, younger,' the father, such eldest child should not be entitled to any share of the said trust funds and estate; but, 'in case of there being only one child of the marriage, or in case of the failure of all the children of the marriage but one, then that one child should have right, without division, to the whole of the sums and funds hereby provided by the said Margaret Dreghorn and Mary Lyon Dennistoun to the children of this marriage.' Then follows, perhaps, the most important clause:And failing heirs of the body of the said Mary Lyon Dennistoun, without any of them attaining to majority, or being married (until which events the fee of the said trust funds and estate shall continue invested in the said trustees), then the said trustees shall account for and pay over the fee of the premises to the said Margaret Dreghorn, in case of her being then in life; whom failing,' to the sisters of Lady Baillie, in such proportions as the said Margaret Dreghorn shall appoint; whom failing, to the heirs of their bodies; whom failing, to a variety of other substitutes. This part of the deed closes with a provision that, failing heirs of the body of the pursuer, she should have right to bequeath the sum of £5000 sterling of the fee of the trust funds to any person whom she might think proper; such bequest to take effect on the death of the longest liver of her and her husband.

"In all such questions as the present, a destination over, or, in other words, a destination failing the first parties called, has always been considered as important, and has often been held as conclusive. In this case there is such a destination, but in remarkable terms: It is, 'failing heirs of the body of the said Mary Lyon Dennistoun, without any of them attaining to majority, or being married.' Can it be held that, under these words, which express the condition of this ulterior destination, such destination would have become operative if a child or children of the marriage reached majority or married? The ulterior destination is made upon the failure of that event; but the event not having failed, but occurred, the destination over can take no effect.

"There is another expression, however, which is very material, occurring in immediate connection with this condition, namely, until which events the fee of the said trust funds and estate shall continue invested in the said trustees.' This seems to put a limit to the fee remaining vested in the trustees, to the extent of excluding vesting in the more immediate beneficiaries in the trust. The trustees, indeed, might hold the funds for the liferenters, and till the fee became payable, but they did not remain vested to the extent of excluding the direct right of the beneficiaries, and above all, they did not remain vested for the benefit of the parties called as substitutes, or conditional institutes, upon the failure of an event which had de facto occurred. It was only till that event that the trustees remained vested.

"The pursuer contends that, by the majority or marriage of some of the children,—all of them, indeed, but three,-not only is the ulterior destination defeated, but the property was vested in the whole children, as well the minors and unmarried as the majors and married, though subject to conditions, namely, that the eldest child, on succeeding to the estate of Polkemmet, may lose his or her provision, and that the interests of the whole of the children may be restricted to one-half, in the event of the pursuer marrying a second time, or at least of issue of such second marriage. But it is contended that these conditions against the eldest child on the one hand, and in favour of the issue of a second marriage on the other, do not prevent vesting, which may very well take place under these conditions. support of this view the pursuer refers to the case of Scheniman v. Wilson, &c., June 25, 1828, where, under a trust-settlement directing trustees to hold for behoof of the children of the settler in liferent, and their issue 'in fee, during the lives of my said children, or until the majority of the youngest child of any of my children,' the trustees being directed to pay over upon this last event, subject always to the liferent of the parents, his immediate children,-the Court held that the majority of the youngest child vested the whole, but at the same time provided, notwithstanding this vesting, for the right of any grandchild SCOTTISH JURIST.

In

·

that might be subsequently born, the parties drawing payment finding security. Perhaps a still stronger case is that of Shaw,' reported in the Sixth Volume of Shaw and Dunlop's Cases, p. 1149. There the provision of the trust was generally to provide the trust funds equally to all the children of a marriage, with double share to the eldest son, the provision being payable to the children respectively on their attaining majority or twenty-one years complete, or being married. The children who had attained majority contended that each child, as it reached majority, was entitled to obtain its share of the fund as it stood at the time, without diminution in the event of the birth of other children. The younger children and trustees, on the other hand, contended that the trustees could not pay the full share of the children who had attained majority merely with reference to the children then existing, but were bound to retain to meet the event of the existence of other children, who could not be limited to any particular number. The Court found that the children who were major, including the eldest son for his two shares, were entitled to be paid according to the number of children then in existence, but on condition that in case, from the birth of other children, or otherwise, it should be found that they had received more than their share of the trust funds, they should repeat and pay back, with interest, the por. tion overdrawn by them.

"The Lord Ordinary is aware that the term of payment of the provisions in those cases was somewhat different from the present, and was not necessarily suspended by the existence of a liferent. But they are referred to mainly for the purpose of shewing that there is no difficulty, in point of law, in holding a fund to have vested to the effect even of being paid, though subject to divestment, in whole or in part, on condition of a certain event occurring. Where payment can take place, that event must be met by caution being found for repetition, as in the cases referred to. But where payment cannot be made, as in this case with reference to the liferents, and in the case of Shaw, also, with reference to a liferent which covered one portion of the funds, the interest of all parties will be sufficiently secured by the trust itself, but the rights and interests will equally vest,

"For these reasons, the Lord Ordinary, agreeing with the argument of the pursuer, does not think that the provisions under which the eldest child had no interest in the trust funds, in the event of succeeding to the father's estate, would have affected the vesting of his or her right, still less would it have affected the rights of the other children. That would have been to construe against them a provision for their benefit. Suppose, for example, the mother had died, in which case one-half of the funds would have become distributable, being freed from all liferent, the eldest child might have drawn his or her share, under obligation to repeat upon succession to the father's estate. If that eldest child had been a daughter, her succession might have been excluded by a son of a second marriage of the father. In like manner, the provision restricting the absolute right of the children of the marriage in the fee of one half of the trust funds, in the event of the mother entering into a second mar. riage, would not suspend the vesting of the right, though it would vest only under the condition which allowed participa tion of the mother's issue of a second marriage, and as there could be no payment during the mother's lifetime, the trust itself formed sufficient security.

"On the whole, therefore, although the case is not without difficulty, and the deed has been by no means well framed, the Lord Ordinary is of opinion that the rights of the children vested on the majority or marriage of any of their number, because that event defeated the ulterior destination,-because it was only till that event that the funds could be held vested in the trustees to the exclusion of any interest vesting in the beneficiaries, because the existence of the liferent, in favour of the mother to the extent of the whole, and in favour of the father to the extent of the half, did not necessarily interfere with the fee vesting in the children, as a class, and because the possible restriction of the rights of the eldest child, or of the rights of the whole children in certain events, was, under the principles in the case referred to, not inconsistent with the vesting.

"The Lord Ordinary does not think it necessary to make any detailed reference to the settlement of Miss Dreghorn, from whom a part of the funds in question was derived. That settlement also contains no destination over the fee, except in case of the decease of any of the three younger nieces without issue, or of the failure of all the issue of any of them before VOL. XXVI.-No. VIII.

attaining to majority or marriage. That event had not happened, so that the ulterior destination fails of effect; and if any remark is to be made on the terms of Miss Dreghorn's settlement, it is the similarity of the condition in that deed, and in the trust, namely, defeating the ulterior destination by the marriage or majority of one child.

"The power of bequest reserved for Lady Baillie in the marriage-contract seems scarcely to require remark, and cannot, as the Lord Ordinary thinks, affect this case.

"The Lord Ordinary has found no expenses due, because it appears to him that the defence was one upon which the opinion of the Court was very reasonably taken by the defenders, the grandchildren of the pursuer, and which it was of advantage to the pursuers to have judicially discussed." The defenders reclaimed, and prayed the Court "to recal or alter the interlocutor complained of; sustain the defences, and find that, according to the true meaning and legal construction of the marriage-contract and trust-deed libelled, no right in the funds and property set forth in the summons has vested in any of the children of the pursuer, Lady Baillie, and that such right will only belong to those children who may survive the pursuer, and the issue of predeceasing children; or otherways," &c.

At advising

Lord Justice-Clerk.-Useful as our action of declarator is for the purpose of ascertaining the rights and interests of parties in many cases, although the period of actual enjoyment may not yet have arrived, and important as it is not to restrict the operation of that form of action, yet I am not satisfied that we ought to entertain this action of declarator at the instance of Lady Baillie, or that the Court has, in any preceding case, been called upon to adjudicate on eventual rights at the instance of a party having no proper legal interest in the conclusions asked for.

Lady Baillie liferents all the funds which are the subject of this process. She does not seek to enlarge her right and interest in these funds. She asks nothing whatever for herself. She does not desire to have it found that she has any eventual interest in these funds, or any power over them, beyond what, it is conceded on all hands, belong to her; and which power is not to be adjudicated upon in this action. She does not seek to be relieved of any restraint apparently imposed by the deeds referred to. She does not seek to enlarge her own actual enjoyment and usufruct of these funds. Her legal rights and interest will remain, even if she obtains decree, precisely as they stood when she raised her action. The only ground on which her title to raise this declarator was defended is, that it will be a matter of satisfaction to her to have an opinion from the Court at present-a conclusive judgment we cannot pronounce-as to what may be the effect, after her death, of any deed of distribution of the funds liferented by her, which she may now make. She does not propose to give up her liferent of any portion of the funds, so as to accelerate (if that were competent) the period for payment by the trus tees, and so to raise the question, whether, notwithstanding the termination of the liferent, the trustees are still to hold the funds (so freed of her liferent) for behoof of parties entitled to take at her death. Now, it is very true that it would often be matter of great satisfaction to a parent to know what, in a variety of future events, will be the effect of any deed which he now makes, but which can only competently, under the powers he possesses, take effect at his death. But I am not aware that the desire to obtain any such satisfaction, so far as the Court could give it, has been held to be of itself a legal title on which to raise a declarator of right. The present summons is at the instance of Lady Baillie alone. And instead of concluding in the usual way, to have it found against certain defenders that the pursuer has a certain personal or even eveutual right and interest, or is entitled to be freed from certain restrictions, or to have a declaration as to the meaning of a deed pronounced in her favour, it concludes to have something found in favour of the defenders who are called in the action, and who, of course, make no appearance, so that the action is framed in the way most likely to secure, if possible, a decree in absence at the instance, though it cannot be said to be in favour of the pursuer.

The summons concludes against the defenders, her children, that they are all and each of them vested with, and have right to a share or portion of the funds in question; but then

it adds, "the right of the defenders to said shares or portions"that is, in fact, to a share or portion, being always subject to the power of distribution or apportionment conferred upon Lady Baillie by the said contract and trust-deed-a power of distri bution which may render of very little value to some of thes children, any declaration of a right to a share being now vested in them. Then follows an alternative which I do not really understand. If this alternative conclusion means that the shares are vested in the defenders, without being subject to Lady Baillie's power of distribution, which seems to be the only difference between the two conclusions, then that aban donment of the power of division seems to take away at once the only ground, slender as it is, on which Lady Baillie attempted to state any interest for insisting in this declarator. Whether such is the meaning of this alternative conclusion, scems, however, doubtful; the more so as the power of distri bu ion is not departed from in the next general concla sion. Then there follows a conclusion in similar terms, that at least the shares have vested in such of the defenders who have attained majority or are married, and will vest at the majority and marriage of the others, subject to the power distribution. This is a conclusion-so far as some of the chldren are not major-which relates to an event which may never occur at all, for such children may predecease that age.

The summons thus merely contains conclusions in favour of the defenders, and seeks nothing on behalf of the pursuer nor is it an action on the part of some of the children, repre sented by Lady Baillie, against the others.

Now, I can well understand that a party with the rights of a creditor may pursue an action to have it found that certain actual rights or eventual interests are vested in another, when he calls as defender, in order to have it in his power to adjudge or attach such rights, or to have a decree pronounced that he is entitled to adjudge or attach them; or that the defender, if such rights are found to be vested in him, shall be ordained to convey them to him in implement of existing obligations Such interest in the pursuer will fully support and account for an action at his instance, to have a decree pronounced, in the first instance, in favour of the defender, although it is most likely that other parties would require to be called as defenders in such a case, so as to attain the desired result.

But in this case there is no legal interest on the part of the pursuer to be extricated or cleared. There is nothing sout for by her, as pursuer, in her own favour. In truth, she really asks nothing. But she seeks, as against her children, to have a decree pronounced in their favour as to certain rights which she says are vested in them. She seeks decree exclusively in favour of her own children, who are the leading defenders in

the action.

That she also calls the present reclaimers, the issue of one of her own children, does not add to her title or interest to raise and insist on such a declarator. So far as I know, such an ac tion is without example.

When we inquired as to her interest, which is not set fort in the summons, and really could not be stated in legal terms, the only answer which could be made was, that she had exe cuted a deed of distribution among her children now alive, and that it would be a great satisfaction to her to know whe ther that deed, in itself a mortis causa deed, and the effect f which could only emerge after her death, would take effect

according to the present state of her family, or according to

the state of her family at her death. Certain contingencies, even on the view of the marriage-contract taken by the Ordi nary, any declaration in favour of the children must be e posed to; and there may be others, even if the interlocutor proceeds on a sound construction of the trust in the marriage

contract.

But the primary question is, Has Lady Baillie any legal title to call on the Court to give any opinion on such a matter, ia the indirect way proposed by this action of declarator, and has she either title or interest to insist on such conclusions as

those in this summons?

In my opinion she has neither title nor interest, in any legal

sense of these terms.

I have the less difficulty in refusing to entertain any such we might pronounce could not settle the questions which mar arise on the death of Lady Baillie; any other grandchildren would be entitled to try the question when that event occurs