Service, Special--Act 10 and 11 Vict., c. 47, § 21-Construction-Constitution, Action of-A died infeft in certain lands. B, her heir, obtained decree of special service, which was recorded and extracted, in terms of the Statute, and then died uninfeft. C was the heir-at-law of both A and B. In an action of constitution at the instance of B's marriage-contract trustees against C, to have him decerned to make up a title as B's heir, and convey over to the pursuers-Held that no transmissible right had vested in B by the extracted and recorded decree of service in her favour, and that the lands upon A's death passed to C, as then heir of A, unburdened by any delegation to convey to B's marriage-contract trustees. This was an action of constitution at the instance of the trustees in the marriage-contract of the Honourable Augustus Moreton and the deceased Mary Jane Lockhart Macdonald or Moreton, and was directed against the eldest son of the marriage, who was in pupillarity. The conclusion was that the defender should complete a title to certain lands in which his aunt Emelia Lockhart Macdonald died infeft, and should thereafter convey the same to the pursuers.

The defender's mother Mrs. Moreton and his aunt, were the only children of the late Sir Charles Macdonald Lockhart. The aunt died unmarried on 29th January 1850, and infeft in the lands in question. On the 16th of September following Mrs. Moreton expede a service before the Sheriff of Chancery, as nearest and lawful heir in special to her sister in the lands. The decree in the service was duly recorded and extracted, in terms of the statute, but no infeftment was expede. Mrs. Moreton died in December 1851.

By her marriage-contract Mrs. Moreton conveyed all her heritage to the pursuers. If her decree of service vested any right in her, it was carried by this personal conveyance in the pursuer's favour. Whether it was so or not was the question at issue in the present action.

The defender put, inter alia, on record the following plea:

"No right to the said lands of a transmissible character vested in Mrs. Moreton under the special service in her favour as heir of her sister, in respect that her title under the said service was not completed by infeftment."

The Lord Ordinary pronounced the following interlocutor:

"Repels the defences, and decerns in terms of the conclusions of the libel, and finds no expenses due.

"Note.-Miss Emilia Olivia Macdonald Lockhart died on the 29th January 1850, duly infeft in the subjects described in the summons, and the feudal right thereto is still in her hæreditas jacens. Her sister the Honourable Mrs. Moreton, expede a special service as heir to her in these subjects, on the 16th September 1850, by obtaining a decree of service before the Sheriff of Chancery, which contained a precept of sasine, and was duly extracted and recorded, all in terms of the Statute 10 and 11 Victoria, c. 47. Mrs. Moreton, however, also died before infeftment was expede in her favour; and the question which has been raised by the present action is, whether or not, in virtue of the 21st section of that statute, that recorded and extracted decree of special service had the effect of vesting in her such a personal right to the subjects contained in the service as was transmissible to her disponees? This is a question of great and general importance. It has attracted the notice of the Juridical Society, as appears from the last edition of its Styles, i. 289.

"Mrs. Moreton, by an antenuptial marriage-contract in 1837, had conveyed to trustees, for the purposes therein mentioned, all lands and heritages in Scotland which then belonged to

her, or which she might afterwards acquire or succeed to, during the subsistence of the marriage.

"The pursuers assuming that in virtue of Mrs. Moreton s special service above mentioned, a personal right to the subjects therein contained became vested in her, and that that personal right had been transmitted to them in virtue of the general disposition in her marriage-contract, have, with the view of completing a feudal title to these subjects, instituted the present action of constitution against Miss Macdonald Lockhart's heir-at-law (who is her nephew, Mrs. Moreton's son), concluding that he should make up a feudal title to the subjects, and convey them to the pursuers on implement of the implied obligation to that effect, said to be created by the decree of special service, and the transmission thereof to the pursuers. The defender, on the other hand, denies that the special service had any such effect, and maintains that, as the heir-at-law of his aunt, he has succeeded to an unqualified right to these subjects.

"The solution of the question which has thus been raised depends upon the construction of the 21st section of the sta tute above mentioned, whereby it is enacted, 'That for the purpose of completing the feudal title of the heir so served, but of such heir only, every decree of special service shall contain a precept of sasine, and such decree, being recorded and extracted as aforesaid, shall to all intents and purposes, unless and until reduced, be held equivalent to, and have the fall legal operation and effect of, a disposition in ordinary form. granted by the party deceased being last infeft, of the lands contained in such service, to and in favour of the heir served, and to his other heirs and successors entitled to ser ceed under the destination of the lands contained in the de ceased's investiture thereof, but under the whole conditions and qualifications of such investiture as set forth or referred to in such extracted decree of special service, containing gation to infeft by two several infeftments and manners d holding, one thereof to be holden of the deceased andi heirs in free blench, for payment of a penny Scots, in of blench farm, at Whitsunday yearly, upon the ground c said lands, if asked only, and freeing and relieving the ceased and his heirs of all feu-duties and services exigibed of the said lands by their immediate lawful superiors thes and the other of the said infeftments to be holden from deceased and his heirs of and under their immediate la superiors in the same manner that the deceased, his pre cessors and authors, held or might have holden the same, that by confirmation with assignation to the whole wrist rents of the lands and precept of sasine, for infefting the part served and his successors in the lands-all in common for

"As the late Mrs. Moreton's decree of special service only contained a precept of sasine, but was duly recorded a extracted in terms of this enactment, the Lord Ordinary is d opinion that she was in the same position as if her sister M Macdonald Lockhart had granted to her a disposition of the lands in question, containing the different clauses specified :. this enactment, and that, consequently, such a personal rig as a disposition of that kind would have conferred upon be was vested in her, and was transmitted by her general dispe sition to the pursuers.

"The language in which the enactment is expressed appeas to be clear and unambiguous, and must, as the Lord Ordina thinks, receive full effect, unless it be clearly shewn that the meaning of the Legislature was truly different from what is expressed. But instead of this being the case, there are veral things which appear to shew satisfactorily that the met ing of the Legislature truly coincided with its language.

"1. The object of this enactment was to provide a re against a serious evil, which has often arisen from the re the common law, that on the owner of feudal property intestate, his heir has not a legal right to, nor any power of that property until he be fully entered with the superi vassal in place of the defunct. The operation of this rule often led to very grievous hardships, frustrating not only ** deeds of settlement of unentered heirs, but even their one transactions and the just rights of their creditors. The e ment in question has provided means, admirable equallytheir simplicity and efficiency, of avoiding these serious el but this remedy would be rendered much less complete, enactment were not to receive effect to the full extent of plain and literal meaning of the language in which it is pressed.

"The first part of this section provides to the heir the means of obtaining himself base infeft, without, on the one hand, waiting for the interposition of the superior, and being exposed to the great risks which often arose from the delay of obtaining an entry from him; and, on the other hand, without interfering detrimentally with the superior's rights. But the boon, great as it would have been, even if it had stopped there, would, in that case, have still been imperfect, because if the heir should die before his service should be followed by infeftment, or if any essential blunder should be detected in the infeftment after his death, all the evils which have been referred to would still have operated. To render the remedy for these evils more complete, it was requisite that the service, even although not followed by a valid infeftment, should vest in the heir such a right as should at least subject the property to his own power, and to liability for his debts; and this appears to be done by the enactment that, not an infeftment on the service, but the decree of service itself, should be equivalent to, and have the operation and effect of a disposition in the ordinary form, and with the ordinary clauses by the defunct in favour of the heir. This view of the enactment thus appears to be in accordance with the actual intention of the Legislature as well as with its language.

"2. Two at least of the clauses of the statutory disposition, which, by this enactment, was declared to be implied in the decree of special service, shew that it was truly intended to operate as a disposition without infeftment. In the first place, the parties in whose favour this implied disposition is to operate, are not only the heir so serving of the defunct, but also his other heirs and successors, set forth in the former investiture. Thus, although the precept of sasine was not to be available for infefting those other heirs and successors, the decree itself was to operate as a disposition in their favour to all intents and purposes. And in the next place, the clause declaring that this implied disposition was to be held as having an assignation to the rents of the lands in ordinary form, indicates that it was intended to take effect before inteftment. The very purpose for which the clause of assignation to rents is inserted in a disposition in ordinary form, is to confer upon the disponee a right to the rents of the subjects while he remains uninfeft; and whenever the real right is vested in him by infeftment, his right to the rents arises from his ownership, and the assignation to the rents becomes useless. And the Legislature, by making the decree of special service by implication a disposition to the lands with such an assignation to the rents, shewed its meaning to be that that implied disposition was to operate prior to and without infeftment.

"3. By the 23d section of the Act it is enacted, that the decree of special service shall be equivalent to a general service only as to the subjects contained therein, and that the heir thereby served shall be liable for the deceased's debts and deeds to the extent only of the value of these subjects. The object of this enactment appears to be, to save such heir from the universal liability which at common law a service might have imposed upon him, and to make his passive title commensurate only with his active title. But this principle was here followed out by the Legislature, on the footing that to the extent of the value of the subjects contained in the decree of special service, the heir would be liable passive for the ancestor's debts and deeds; and what was declared to create this liability was not the expeding infeftment upon the decree of special service, but merely obtaining that decree itself. In the present case, for example, Mrs. Moreton, by merely expeding the decree, became liable for the debts and deeds of her sister Miss Macdonald Lockhart. And since the Legislature thus, on the one hand, limited the liability of an heir expeding a decree of special service for his ancestor's debts and deeds, so as to leave him still responsible for these to the extent of the value of the subjects contained in that decree, and at the same time declared in explicit language that that decree would operate as a conveyance in his favour of these subjects, the Lord Ordinary thinks that the Legislature did truly intend the decree to operate to that effect.

"The defender maintains, that because the 21st section of the act commences with the words, That for the purpose of completing the feudal title of the heir so served, but of such heir only, every decree of special service shall contain a precept of sasine;' these words must be held to over-ride the whole of the section, and must limit the operation of the implied disposition to the effect merely of completing the feudal

title of the heir so serving, or of indicating the nature of that title. But this reading of the enactment does not appear to be warranted by its language. No doubt it is only for that one purpose a precept of sasine is directed to be included in every decree of special service. But that is not the only purpose for which the decree itself is appointed to operate as a disposition of the kind above mentioned. On the contrary, the decree, when recorded and extracted, as directed by the Act, is declared to be equivalent to, and to have the full legal operation and effect of such a disposition to all intents and purposes.' There is thus in the language of this section of the Act a clear and marked distinction made between the limited effect of the precept of sasine, directed to be inserted in the decree, and the unlimited legal effect and operation of the disposition for which the decree itself is to operate as an equivalent. And as the main purpose and the legal effect of a disposition of that kind is to confer a valid personal right on the grantee, the decree itself, in terms of the express terms of the enactment, must be dealt with as being equivalent to, and as having the full legal effect and operation of such a disposition, although the only purpose of the precept of sasine inserted in that decree is to enable the heir so serving to complete his feudal title.

"It is quite consistent with this construction of the enactment, that not only is that heir alone who is served declared to be the only one whose feudal title may be completed in virtue of such precept, but that further, towards the end of the section, the service is declared not to be transmissible for the purpose of infefting in manner and to the effect aforesaid, the heir or assignee of the person so served.' The import of these enactments is nothing more than that the precept of sasine or service is not to be transmissible as a warrant for infeftment. In so far as this statutory proceeding was to serve the special purpose of being a warrant for feudally infefting the heir, it was to be of the same legal character as if it had been a crown precept, or a precept of clare constat, by a subject superior in favour of the heir, namely, it was to be personal to the party in whose favour it was to be expede. But the service is not declared to be intransmissible to other intents and purposes. On the contrary, it is declared not only to be operative and effectual to all intents and purposes as a disposition in ordinary form, but also to be operative and effectual as a disposition of that kind granted to the defunct's heir so served, and to his other heirs and successors entitled to succeed under the destination of the lands contained in the deceased's investiture thereof.' And as under the deceased Miss Macdonald Lockhart's investiture the lands were destined to her and her heirs whomsoever (see No. 4 of process), Mrs. Moreton's decree of special service was a virtual disposition by Miss Macdonald Lockhart, in favour not only of Mrs. Moreton, but also of her other heirs and successors, although the precept of sasine thereto annexed could be executed only in favour of Mrs. Moreton herself.

"This construction of the statute was objected to at the debate, on the ground that it would have the anomalous effect of making a service the means, not of transmitting to the heir some right tantum et tale, as it previously existed in the ancestor, but of creating in the heir a right of a kind different from that which was in the ancestor's person. But this is no greater anomaly than what is produced by a disposition granted by the owner of feudal property, so long as infeftment is not expede in favour of the disponee, or by a charter of resignation or of adjudication granted by a superior, so long as infeftment is not expede in favour of the grantee. The Legislature, in order to serve the very important purpose already adverted to, thought proper to enact, not only that a person expeding a special service in the manner prescribed by the statute might use it for the special purpose of completing his own feudal title, but likewise that to all intents and purposes it should operate as a disposition of a kind which, by the law of Scotland, is transmissible.

"In this respect the effect of the enactment under consideration is analogous to the effect of the Statute 4 Geo. IV., c. 98, inasmuch as a jus ad rem in moveables left by a person dying intestate, is thereby declared to be vested in his next of kin, and is transmissible to their representatives, assignees or creditors: although the expeding of a confirmation remains as necessary as under the former law, for the purpose of taking ex bonis defuncti the real right or jus in re of these effects. The Legislature, therefore, by making a decree of special service vest a personal right in the defunct's heir, while it left the

real right in hæreditate jacente defuncti, did nothing more than it formerly did in making a personal right to moveables vest ipso jure in a defunct's heirs in mobilibus, while it left the real right still in bonis defuncti.

"On thes grounds the Lord Ordinary thinks that a personal right to the subjects was vested in Mrs. Moreton; and passed to the pursuers as her general disponees, and that they are entitled to have that right feudalized by means of decree of constitution and of adjudication against the heir of Miss Macdonald Lockhart, in whose hæreditas jacens the real right of feudal fee still remains."

The defender reclaimed.

Millar, for reclaimer.-Prior to the statute a special service not followed by infeftment vested no right whatever.-Bell's Princ., sect. 1847; Ersk., iii. 8, 78. No intention to change the law in that respect is shewn in the act. Its object was merely to alter the forms by which services were carried through, and feudal titles completed after service. The statute did not intend to supersede infeftment as a condition of vesting, but to facilitate the means by which infeftment could be obtained. The reason why a decree was made equivalent to a disposition by the party deceased, being the person last infeft, was obvious. It was to give effect to the feudal principle that warrant to infeft can flow only from one infeft. It is said that the decree is to be equivalent to a disposition" to all intents and purposes." But this is open to construction; because though in favour of heirs, they are not entitled to use it in the making up of titles. If it be qualified at all, there is no inconsistency in making it subject to the proviso that the decree is to be equivalent to a disposition only for the purpose of completing title, which, indeed, is explained to be the purpose at the outset of the clause. It is said that two of the clauses of the statutory disposition shew that it was intended to serve as a disposition. These clauses only shew that the disposition was to be complete in all its parts, but not that it was to subsist to any effect if there was no sasine. If an heir had had no right in law till sasine, there might have been something in this view. But apparency is a sufficient title.-Bell's Prin., 1682; Ersk., iii. 8, 58. Hence it is clear that nothing was given in this part of the clause which was not given before. The 23d section of the statute has been referred to as countenancing the view that the right transmits. That section, no doubt, provides that a special service shall include a general service, in so far as the particular lands are concerned, and shall infer only a limited responsibility. This is a benefit to the heir, but it is no reason for vesting in him a transmissible right before infeftment. There might have been something in the remark if, prior to this enactment, an heir had not been universally liable. But such universal liability did previously exist, and required a special enactment to take it away. Ersk., iii. 8, 50, and 75; Bell's Princ., sect. 1916. The Lord Ordinary assimilates this case to the enactment 4 Geo. IV., c. 98. But under that statute the right is vested by mere survivance. The Legislature had not enacted that mere survivance should make a right in heritage vest. Hence there is no room to conclude that service alone without infeftment would make heritage vest; and there is nothing here stronger than service without infeftment.

Marshall, for the pursuers.-There is nothing in the 13th section inconsistent with the meaning contended

for by the pursuers. The 21st section then proceeds to explain very naturally the effect of a special service. The view of the pursuers is, that the words of limitation are confined to the first paragraph of the section. I admit that to complete a feudal title a precept is necessary, But the decree is to have the effect of a disposition. To say that a precept shall not be requisite is a different thing from saying that a decree shall not transmit. The terms of the 21st section bear out this view-(reads Such service shall not be transmissible for the purpose of service. The 23d section of the statute does lend countenance to the pursuer's view; for it limits the ef fect of special service. While it limited its effects, it made permanent those which it recognized. [Lord Rutherfurd.-When you have a disposition without precept, what course do you follow ?]

Mackenzie, for reclaimers.-There is no doubt as to the old law. The question is-Whether decree alone confers a personal right? The 13th section declares only that a decree of service is equivalent to a reto The 21st section was intended to facilitate the comple tion of a feudal title. This enactment confers real benefits, it enables the heir to get infeftment without a precept. But for this it was necessary not only to have a precept but a disposition. It was a base righ: till confirmed, which might at any time be made p lic. This is the fair meaning of the section, and s only proper construction. The disposition to heirs was necessary, because it was to be a sasine under the ini titure. The matter don't stand on the introdue words; for the clause ends with a similar pres There was no occasion for the view contended for b pursuer; there being no necessary delay to provide! If the clause intended to give a personal right, it w not have made the proviso intransmissible but trans missible.

Dean of Faculty, in reply.-The fallacy of the defer der's argument consists in preferring a theory of e veyancing to the plain meaning of the act. It might have been better if the act had been differently expressed but it seems as clear as words can make it that the Leg lature has taken a middle course. There are no terms of law used in the act as to which there can exist an an guity. What is said is, that for the purpose of compl ing a feudal title the decree shall contain a preces It would have been just as easy to say that neither di position nor precept shall be used by the heirs of persons served; but this was not said; on the contrary, the clause proceeds-(reads.) The clause thus goes on t say that a decree shall be a disposition to all intents and purposes. And if so, a transmissible right is by the force of these words vested in the person whom the act places in the position of a disponee.

Lord President.-The question raised by this reclaiming n arises for decision now for the first time. It is one of corsiderable importance and difficulty.

According to the contention of one of the parties, this e tracted decree is to have the effect of a disposition by the part deceased in favour of the party obtaining the decree; exa that the sasine upon it is not to be effectual, except to the pa in whose favour the decree was originally issued. Accordi to the other reading which has been presented to us, this ex tract decree is only to have the effect of enabling the heir complete a feudal title, but does not, before infeftment, rest: the heir any transmissible right.

The difficulty which is thus raised upon the 21st section is

18th July 1854.

FIRST DIVISION.

KEITH MACALISTER, Claimant, v. MARY CAMPBELL or MACALISTER, Claimant.

Marriage-Contract-Power of Division-Adultery-DivorceIn an antenuptial contract a sum of money proceeding from the mother of the bride, was appointed to be invested in securities to be taken in favour of the wife and husband in conjunct liferent, and the survivor in liferent, and to the younger children of the marriage in fee; reserving to the husband and wife, and to the survivor, a power of dividing the sum among the children who might be interested. Four children were born of the marriage, which was dissolved by the wife's divorce on the ground of adultery-Held, notwithstanding the wife's divorce on the ground of adultery, that the £4000 were to be invested in terms of the marriage-contract, with this exception, that instead of a conjunct liferent to the spouses, and thereafter a liferent to the survivor, there was to be established an exclusive liferent to the husband, to be followed by a liferent to the wife, in case of her survivance; and held, in particular, that, notwithstanding the wife's divorce, the power of division among the children was to be reserved, as pro vided in the marriage-contract in favour of the wife and husband, and the survivor, and was not to be held as belonging exclusively to the husband in consequence of his wife's delict.

This was an action of multiplepoinding, raised in name of trustees in an antenuptial contract, to obtain the instructions of the Court as to the proper manner of investing a sum of £4000.

The claimants were the husband Keith Macalister and his wife Mary Campbell.

There had been four chil tren of the marriage, which was dissolved by the divorce of the wife on the ground of adultery.

The provision in the marriage-contract was as follows:

Therefore, and in exercise of the said reserved power, she, the said Eugenia Josephine Campbell (mother of the bride), hereby provides, and binds and obliges herself and the trustees of her said marriage settlement, to pay within six months after her death to the said Mary Campbell, with the consent of her said intended husband, the sum of £4000 sterling, which she hereby conveys and makes over irrevocably to the said Mary Campbell, as her share of the said trust-money, with the interest or dividends corresponding thereto, and accruing thereon, from and after the day of her, the said Eugenia Campbell's death; but providing and declaring always, as it is hereby specially covenanted, agreed and declared, that the said sum of £4000 sterling shall, at the sight, and with the approbation of any one or more of the persons hereinafter named, at whose instance execution is to pass for implement of these presents in behalf of the said Mary Campbell, or of their heirs-male being of age at the time, be immediately lent out at interest on proper security taken and conceived in favour of the said Mary Campbell and the said Keith Macalister in conjunct liferent, and the survivor of them in liferent, for their liferent use allenarly, and to the child or children to be procreated of this intended marriage, other than the heir thereof who shall succeed to the foresaid lands and estates, in fee; whom failing, to the said heir in fee, reserving to the said Mary Campbell and Keith Macalister, and to the survivor of them, the power of dividing the said sum of £4000 among the children who may be interested therein, according as they may see proper, but failing such division, then the same shall belong to the children equally."

The husband's claim and pleas were as follows:"The claimant humbly claims that the fund in medio should e invested by the raisers in terms of the antenuptial contract founded on, in manner consistently with the following PLEAS IN LAW-1. In consequence of the dissolution of the marriage between the claimant and his late wife, by divorce of the latter on account of adultery, she must be regarded, in all questions with the claimant, in the same position as if she were naturally dead. 2. The claimant is entitled during his life to the exclusive liferent of the fund in medio. 3. The claimant is further,

during his life, entitled by himself, and without the concurrence of his divorced wife, to exercise the power of division of the fee of the fund in medio amongst the children of the marriage, and the power of division so exercised will be effectual and conclusive. 4. The claimant is entitled to select or control the investment of the fund in medio at the sight, and with the approbation of one or more of the parties named in the marriage-contract. 5. The claimant is farther entitled, with the concurrence of one or more of the parties named in the marriage-contract, to call up the money, and reinvest it in the same terms. The claimant is entitled to have his rights and privileges, with reference to the fund in medio, specified in any security on which the money is invested."

The wife's claim and pleas were as follows:

6.

"The claimant Mrs. Mary Campbell or Macalister, claims that the sum of £4000 shall be invested by the raisers at the sight of the parties named in the marriage-contract, either under a destination in the precise terms of that contract, or otherwise upon proper security to be taken in favour of Mr. Keith Macalister in liferent, and failing him by death, in favour of the claimant Mrs. Mary Campbell or Macalister in liferent, for his or her liferent use allenarly, and in favour of the child or children procreated of the marriage, other than the heir who may succeed to the estates, in fee; whom failing, to the heir in fee; reserving to the said Mr. Keith Macalister and the claimant Mrs. Mary Campbell or Macalister, jointly, during their joint lives, and to the survivor of them, the power of dividing the said sum among the children of the marriage other than the heir, according as they may see proper; and declaring that if there be no such distribution, the fund will fall to be equally divided among the children, as directed by the said marriage-contract. PLEAS IN LAW.-1. Under the marriage-contract, the claimant Mrs. Macalister, in the event of her surviving Mr. Keith Macalister, will be entitled during her life to the exclusive liferent of the sum of £4000 forming the fund in medio. 2. The power of dividing the said sum among the children other than the heir, can only be exercised by the claimant Mrs. Macalister and Keith Macalister jointly, while both are alive, and upon the death of either without such division, the power will devolve upon the last survivor. 3. The claimant Mrs. Macalister is entitled to have the fund in medio invested upon proper security, at the sight, and with the approbation of one or more of the parties named in the contract, and to have her rights and privileges, as eventual liferenter or fiar of the said fund, specified in any security on which the money may be invested."

The Lord Ordinary pronounced the following interlocutor:

Finds, with reference to the conflicting claims of the parties, that the investment of the £4000, which constitutes the fund in medio, must be made in every respect in terms of, and under the provisions of the marriage contract between the two claimants, with this exception, that instead of a conjunct liferent to the spouses, and thereafter a liferent to the survivor, there is to be established an exclusive liferent in the claimant Keith Macalister, to be followed by a liferent, in case of her survivance, to the claimant Mrs. Macalister: Finds, in particular, that the power of division among the children is to be reserved, as provided in the marriage-contract, in favour of the said Mrs. Macalister and Keith Macalister, and the survivor of them: Finds no expenses due to either claimant, and decerns.

Note.-No direct authority has been produced in support of Mr. Macalister's claim to have the exclusive power of division among the children during Mrs. Macalister's life. This power seems not to be a patrimonial right as between the spouses, such as could be the subject of forfeiture in favour of the husband as against the offending wife. It seems rather to be a power vested in the parents for the benefit of the children of the marriage. The necessity of the mother's consent to any division proposed by the father, intended to operate an unequal distribution among the children, may be highly beneficial to the latter; and the Lord Ordinary has not been satisfied that the divorce of the mother ought to deprive them of this benefit."

The husband reclaimed, and prayed the Court "To recal or alter the said interlocutor, and to sustain the pleas for the reclaimer; and, in particular, to recal or alter the same, in so far as it finds that the power of division of the fee of the sum of £4000, forming the fund in medio, among the children of

the marriage, is to be reserved in favour of the said Mrs. Macalister, the reclaimer's late wife, and the reclaimer and the survivor of them; and to find that the reclaimer is now entitled by himself, and without the concurrence of his said late wife, to exercise the power of division of the fee of the said fund in medio amongst the children of the marriage; and further, to find that the reclaimer, as being at present the sole liferenter of the fund in medio, is entitled, at the sight, and with the approbation of one or more of the parties named in the marriage-contract, and without the concurrence of his said late wife, to select or control the investment of the said fund, and the calling up and reinvestment thereof, and to pronounce such authority and directions as your Lordships may consider proper and necessary for carrying these findings into effect, and to find the reclaimer entitled to expenses; or to do otherwise," &c.

At advising

Lord President.-I have no difficulty. No ground has been stated for disturbing the interlocutor. I don't think this power of disposal comes at all within the category of those rights which suffer forfeiture by divorce from adultery. It is not one of those things which are given to the wife by her husband. It is a mere power of disposal. The husband retains the full measure of what he got under the contract.

Lord Ivory.-I am of the same opinion. It is a totally dif ferent thing to say that there shall be a forfeiture of the provisions she takes as a wife, and that there shall be a forfeiture of a power conferred upon her as mother of the children. case of Thom does not touch this.

The

Lord Robertson.-I concur. This involves not a power on anything she has acquired by the marriage, but on something she has given.

Lord Rutherfurd absent.

Adhere.

Authorities cited for Macalister, Thom, June 11, 1852, Stair, i. 4, 20. Authorities cited for the wife, Ersk., i. 6, 46.

Lord Ordinary, Benholme, For the Husband, Penney; Charles Clark, S.S.C. Agent.-Alt. Dean of Faculty (Inglis), Mackenzie; Alex. Hamilton, W.S. Agent.-W. Clerk.-(F.H.)

18th July 1854.

SECOND DIVISION.

JAMES METHUEN, Pursuer, v. SIR GEORGE SINCLAIR, Bart., and His TRUSTEES, Defenders.

Personal Bar-Factor, Judicial-Circumstances in which held that a litigant was barred from objecting to the accounts of a judicial manager appointed to take charge of the subject of the suit, pendente processu.

In the course of an action to determine the validity of leases of fishing stations in Caithness-shire, granted by Sir George Sinclair and his trustees to Methuen, fish-curer in Leith, a judicial manager was appointed in 1846, on the petition of the trustees, to take charge of, and manage the fishing stations of Whaligo and East Clyth, and the herring fishings for the ensuing season.

In October 1846 the manager lodged an account of his transactions, explaining that he had been able to sell only 75 barrels in Caithness, and as he found it impossible to dispose of the herrings there, he had consigned 217 barrels to an agent in Newry, and had retained 500 in Pulteneytown, for the purpose of enabling him to dispose of them during the winter months.

A loss having arisen in the course of management, Methuen objected to being held liable for it, on the ground that the appointment of manager was originally made at the risk of the defenders.

In 1848 the final statement of the accounts was lodged, and in the following October they were ap

proved of, no objection having been stated, except as already mentioned, and the factor was judicially discharged.

In the action to test the validity of the leases, an interlocutor, of 5th Feb. 1851, was pronounced by the Court, finding that a particular lease was valid; that Methuen was to be held as tenant under the trustees; and "that as the said James Methuen was bound to enter into pos session of the said fishing stations for the season 1846, and failed to do so, and that the same were managed by a judicial factor appointed by the Sheriff, for the interests of all parties, the said James Methuen must free and relieve and repay to the trustees the whole outlay and loss caused to them by the said judicial management during the said season of 1846, and also any loss and outlay occasioned to them by the leases granted or attempted to be made under judicial authority for the subsequent years, and allow an account thereof to be given in by the said trustees."

On 19th January 1853, the Court remitted "the account already lodged by the trustees of Sir Geor Sinclair, of the outlay and loss caused to them by the judi management for the year 1846, to Mr. Hamilton Russel, Sherif substitute of Caithness, to hear parties on the same, and to quire into the accuracy of the said account, and of the charges for outlay therein contained, according to the prices of sid year, and to report."

Mr. Russel presented the following interim report:"The total outlay and loss claimed by Sir George Sincla and his commissioners amounts to £698:3:7, composed several branches of expenditure, in evidence of which varie accounts and vouchers have been produced and examined the reporter. Mr. Methuen has objected to the greater part this claim. These objections have been very fully disce but the reporter has been precluded from presenting might appear to him to be the result of the accou by a preliminary objection which has been stated to his under the remit, of engaging in certain investigations wh Mr. Methuen maintains, it was the object of the remit to c out, but which investigations Sir George and his trestes maintain to be not only unwarranted by the terms of the mit, but substantially excluded by the interlocutor of 5th Fe 1851, applying the verdict of the jury.

"It appears that of the total amount of outlay and (£6983:7) claimed by Sir George Sinclair, £607:10:5 stated as the amount of loss on judicial management, pet the manager's account in process.'

"Mr. Methuen objects to various charges in the accounts of the judicial manager, but principally to the prices obtained f the produce, in consequence of the mode in which the ber rings, when cured under his management, were disposed of br him. He complains that, in place of being sold in Wick eitt by private or public sale, and at a time when he alleges average price was fully 18s. per barrel, the judicial manage only disposed of 75 barrels in Wick at more than the average and consigned 217 barrels to an agent in Newry, where the produced on an average only 13s. Id.; and the great baik f the fishing (amounting to 409 barrels) he kept till the se was over, when he shipped them to Stettin, where they p duced on an average only 88. 10d. per barrel. Mr. Meti therefore maintains, that a judicial manager was not warranted in disposing of the produce in this manner; that a loss thre ensued, amounting to £307: 12: 8, for which he considers has not been made liable to the proprietor: and he insists ta the amount falls to be deducted from the claim.

"Sir George Sinclair and his commissioners, on the othe hand, refer to the interlocutor of 5th Feb. 1851, by which has been found that as the said James Methuen was bo to enter into possession of the said fishing stations for th season 1846, and failed to do so, and that the same w managed by a judicial factor appointed by the Sheriff, for interests of all parties, the said James Methuen must free an relieve and repay to the trustees the whole outlay and loss ta to them by the said judicial management during the said seas of 1846. They shew that the account now claimed conta nothing more than the whole outlay and loss caused to the by the management;' and that, while the object of the re