in point. But it is payable to bearer, and it is not endorsed by any payee. It bears no signature except that of the drawer, and therefore it affords no evidence whatever that the claimant's money was drawn by the testator, or that the cheque ever came into his hands. It is in no sense the borrower's writ, and it does not even raise the question on which the Court was divided in Haldane v. Speirs.

The other documents are of a different description. They are not writs of the borrower himself; but they are writings under the hand of his testamentary trustees which are said to bind the trust-estate. The first is an affidavit in support of a claim for return of inventory duty, in which it is deponed that the executor had actually paid debts, amounting to £1128, due and owing by the deceased at the time of his death, and payable out of his personal estate; and one of the debts so paid is said to be a sum of £200 due to the claimant. If the loan had been otherwise established this would not have been evidence to prove payment, but just as little is it evidence of the debt. So far as it goes it is against the claim.

This

The second document on which the claimant's counsel mainly relied is a note of the debts of the trust - estate outstanding at Martinmas 1868, which includes a "sum on debt due to Mrs Margaret Smith, £390." This list of debts is appended to a minute of agreement between Robert Dunn, one of the sons of the testator, and his widow, who was one of his trustees, whereby the son, who had obtained a lease of certain farms of which his father had been tenant until his death, agrees to take over the crop, stock, and implements upon the farms, and to pay to the trustee the sum of £1491, 18s., as fixed by certain referees, under deduction of certain "sums payable from the trust-estate, out of proceeds from the farms for crop 1868, paid or to be paid by him, and amounting in all to £718" odds. agreement is a probative writ, being executed by the parties before witnesses and duly attested; and there is appended to it a state of the trust funds, showing the assets and outstanding debts, and a schedule of accounts, showing the sums paid or to be paid by Robert Dunn in terms of the agreement. The alleged debt to Mrs Smith is not one of these sums, and therefore it forms no part of the subject-matter of the agreement. But it is entered in the list of outstanding debts, and that as well as the other lists I have mentioned is signed by the two parties and by witnesses to the agreement. There follows a docquet signed by five of the testator's children, who are said to have been of age at the time, by which they "approve of the arrangement for the conveyance to Robert of the stock, crop, and implements mentioned in the agreement, being satisfied that the same was more to advantage than a sale by public roup, and also approve of and hold as correct and duly vouched prefixed state of the trust funds of their father as at Martinmas 1868."

the

It is obvious on the face of it that the main purpose of this document was to embody the agreement for the sale of the crops and farm stock and implements to the testator's son, and to preserve evidence that it had been made with the assent of such of the beneficiaries as had attained majority. But incidentally it contains a state of trust funds signed by the widow and certain of the children in which the existence of a debt of £390 to the claimant is said to be acknowledged. The claimant, however, was no party to the transaction. It is not alleged that the document was delivered or exhibited to her, or that she knew anything about it. So far as the children are concerned, it is not a probative writ, because their signatures to docquet are not attested. But assuming it to be sufficiently proved, it is nothing more than a discharge to the mother, by which as in a question with her they agree to treat certain claims as duly vouched. The signature of such a docquet may be effectual to preclude the beneficiaries who have signed it, from challenging payments which may have been made by the executrix. But it did not oblige her to admit claims which were not vouched, nor did it relieve her or her co-trustees of their duty to see that debts were well constituted, before paying them out of the trust funds. Accordingly, the claimant's counsel said that the strength of his case did not depend upon the docquet signed by the beneficiaries, but upon the admission of the acting trustee and executrix. But the supposed admission of the executrix is just as ineffectual to prove a debt against the estate as that of the beneficiaries, and for the same reasons. The list of debts is not a writ on which the claimant had any right of interest. Even if it had purported to be an admission of debt by the widow, addressed to the claimant, and put into her hands as an acknowledgment to be held by her as her document, it does not follow that it would have been binding on the present trustee. The cases which were cited to show that an executor's acknowledgment is sufficient to bind the trust estate are really authorities to the contrary. In Swan v. Briggs it was held that although executors are entitled, as an ordinary act of administration, to grant acknowledgments which will prevent prescription running against a debt that is truly due, they can go no further, and therefore, that as the writ of the executor is not the writ of the debtor, it will not prove the debt, so that if they go on to pay without sufficient evidence, the payment may be disallowed on an accounting with the parties really interested in the executory estate. In M'Calman v. M'Arthur an improbative writing by the deceased was found to have been homologated by his executor, but the executor was the principal beneficiary and trustee for his own behoof, and the Lord President pointed out that he might be liable to other beneficiaries if the debt was not truly due. But it is unnecessary to consider what might have been the effect of an acknow

Hardy &

5, 1896

ledgment delivered to the claimant, for the list of debts in question is not an obligatory document, nor was it delivered so as to enable the claimant to proceed upon it against the trust-estate. For whatever purpose it was drawn up, it remained the private document of the trustee and beneficiaries. The observations of Lord Neaves in Duncan v. Shand seem to me to be in point when he says that a written acknowledgment of the receipt of money will not infer a loan or a debt unless the writing has been delivered to the creditor. His Lordship says "The doctrine as repeatedly laid down is that he who gives another a document acknowledging the receipt of money, without qualification or explanation, as a chirographum to be preserved against him, infers an obligation to repay, and this obligation arises not so much from the document itself as from its possession by the other party. That is the case of Ross v. Fidler and a whole series of decisions."

If the documents are insufficient to prove the alleged loan, I am unable to see upon what grounds they should be held sufficient to let in parole evidence. The rule is that loans cannot be proved except by the writ of the borrower. It is quite consistent with the rule to admit parole evidence of facts extrinsic to the writing, in order to prove that it is in truth and in law the borrower's writ. It may be necessary and it is perfectly competent to prove handwriting or to prove delivery, or it may be to prove the authority of an agent. There may be other purposes which might be figured similar to these. But parole evidence is not admissible except for the purpose of enabling the creditor to prove the loan, not by the parole evidence itself but by his debtor's writ. It cannot be admitted to prove the essential facts which go to constitute loan without violating the rule of loan. Now, what are the facts which it is proposed to prove by parole? There is no averment whatever except that the claimant from time to time made loans to the deceased. If that is to be remitted to proof, the case must turn not upon the purport and effect of writings but entirely upon the parole evidence. It would be contrary to the rule of law to allow a loan to be proved partly by the writing and partly by the acts and words of the alleged borrowers. But in the present case there is no writing of the testator which could be treated as an item of evidence if a parole proof were allowable.

I do not think it necessary to examine in detail the cases which were cited to justify a departure from the rule. In some of these cases it may have been doubtful whether the writing founded on was sufficient, or whether it was the writ of the borrower. But in all the result depended upon its being held that the loan was proved scripto. The case of Laidlaw v. Shaw is an apparent exception. But that was a case of intromission, to which the rule is inapplicable, and not of the direct loan of money. The money contained in a deposit-receipt belonging to one sister was

uplifted by her agent and applied in payment of debts due by another. It was not thought doubtful that this could be proved by the testimony of the agent. The case of Williamson v. Allan on the other hand is no exception to the rule. A loan was proved by an IO U. But that is an obligatory document which requires no evidence to support it. Parole evidence was led not to set up the document or to supplement its deficiencies, but because it was alleged to have been granted by a bankrupt in fraud of creditors. It was found to be an honest document, and that being established the debt was held to be proved by the writ of the borrower, and not by the parole evidence.

For these reasons I am of opinion that the claimant's case can only be proved by the writ of the deceased, and that as no such writ has been produced the claim must be repelled.

The LORD PRESIDENT and LORD ADAM concurred.

The LORD PRESIDENT intimated that LORD M'LAREN, who was not present at the advising, concurred.

The Court recalled the interlocutor of the Lord Ordinary and repelled the claim of Mrs Tait.

Counsel for Pursuer and Real Raiser, and for Claimants and Reclaimers-SalvesenChree. Agent-Keith R. Maitland, W.S.

Counsel for Claimants John Dunn and his M.-C. Trustees-W. Campbell. AgentThomas Liddle, S.S.C.

Counsel for Claimant Mrs Tait--M'Lennan -Gray. Agents Donaldson & Nisbet, Solicitors.

--

by the mineral tenant to have it declared that he was not bound by the leaseheld (diss. Lord Young) that the lease was invalid and therefore voidable, the lessor having no title as heritable proprietor, and having granted the lease in that character. Weir v. Dunlop, 23 D.

1293, followed.

[See Hamilton v. Watson's Trustees, reported ante, vol. xxxi. 374, 21 R. 451, and in the House of Lords, ante, vol. xxxi. 934, 21 R. (H. of L.) 35.]

This was an action at the instance of David Simpson Carson, C.A., trustee under a trust-deed granted by Francis Robertson Reid of Gallowflat, for declarator that the said F. R. Reid was no longer bound by a contract of lease of a mineral coal-field entered into in 1884 between him and John Andrew Hamilton, writer, Glasgow, and for reduction of the lease and of an assignation granted by the lessor in favour of the trustees of the late James Francis Watson.

The circumstances of the case were as follows:-The proprietor of the estate of Bankhead, the late Walter Whyte, died in 1880, leaving a trust-disposition and settlement in which the following clause occurs:"I also leave to my nephew James Francis Watson my estate of Bankhead, but I wish it expressly understood that in the event of my said nephew James Francis Watson dying without leaving any lawful male heir of his body, then and in that event my said lands of Bankhead are to revert back to my nephew John Hamilton."

J. F. Watson never made up any title under this disposition, and died in April 1883 without any lawful male heir of his body, leaving a trust-disposition and settlement by which he conveyed his whole estate to David Ritchie and W. L. Brown as trustees.

In 1882 J. A. Hamilton expede a notarial instrument upon (1) the infeftment of Thomas Whyte, and (2) the trust-disposition by him which is narrated above. This instrument was recorded in the Register of Sasines for the burgh of Rutherglen with a warrant of registration in the following terms:-Register on behalf of Mrs Margaret Pollok or Whyte in liferent, and J. A. Hamilton, nephew of deceased Walter Whyte, in eventual fee as within mentioned.'

In 1884 J. A. Hamilton granted the lease which is the subject of the present action, by which he let the minerals of the estate of Bankhead to Francis R. Reid for a period of twelve years from Whitsunday 1884. Under this lease F. Reid entered into possession and worked the minerals until 1888, when he discontinued working, but paid the rent to Hamilton until Martinmas 1892. In 1893 the trustees of James Francis Watson brought an action against Hamilton concluding for declarator that the estate of Bankhead had vested in Watson at the death of the testator Whyte, and had passed to them by Watson's trustdisposition and settlement. The summons also contained conclusions for reduction of the title made up by Hamilton to the estate of Bankhead.

In this action decree in terms of the conclusions of the summons was obtained from the Lord Ordinary (Low) on 1st July 1893, and this judgment was affirmed by the Second Division of the Court of Session on 31st January 1894, and by the House of Lords on 4th June 1894. On 21st June 1894 decree of reduction of the title of J. A. Hamilton to the lands of Bankhead was pronounced-See Hamilton v. Watson's Trustees, cited supra.

Ritchie and Brown, as trustees of the late J. F. Watson, made up an independent title to the lands of Bankhead, and obtained an assignation dated 24th October 1894 from J. A. Hamilton, which, after narrating the leases granted by him, and the reduction of his title above narrated, proceeded as follows:-"Therefore I do hereby, at the request of the said David Ritchie and William Lochore Brown, as trustees foresaid, but without any price being paid to me, assign, convey, and make over to the said David Ritchie and William Lochore Brown, and survivor of them, as trustees foresaid, and their successors and assignees, all my right and interest in and to the foresaid leases, agreement, and letter of lease during the whole years and terms thereof yet to run, and in and to all the clauses and obligements therein contained, and rents, lordships, and profits which may arise therefrom, and in and to all action and execution competent to me thereupon, surrogating and substituting the said David Ritchie and William Lochore Brown, as trustees foresaid, and their foresaids, in my full right and place of the premises for ever, with full power to them to do everything requisite and necessary concerning the premises which I could have done myself before granting hereof."

On 18th November 1890, Reid, the tenant in the lease of minerals granted by Hamilton, granted a trust-deed for behoof of his creditors in favour of Laurence H. Watson, C.A., Glasgow. On the death of Watson, David Simpson Carson was appointed by the Court of Session on 2nd June 1893 as trustee in his place.

Watson's trustees intimated to Reid's trustee that they were in right of Hamilton's part of the lease, in virtue of the assignation above mentioned, and demanded that the rent should be paid to them. This Carson, as Reid's trustee, declined to do, and instituted the present action, calling Watson's trustees and Hamilton as defender. The conclusions of the action sufficiently appear from the Lord Ordinary's interlocutor and opinion. Hamilton did not defend the action.

The pursuer pleaded-"(1) The defender John Andrew Hamilton never having had any right to the said lands of Bankhead or the minerals therein, the alleged agreement between him and the said Francis Robertson Reid for a lease of the coal and other minerals mentioned therein was on his part ultra vires and wholly ineffectual. (3) The defender, the said John Andrew Hamilton, had no power to assign to the defenders, the trustees of the said James Francis Watson, the said agreement or any right

Trs, v.

1son's

or title to demand from the pursuers implement of the obligations undertaken by the said Francis Robertson Reid under the said agreement, and the said last - mentioned defenders are accordingly not entitled to enforce implement thereof. (6) The agreement of lease is not enforceable against the pursuers, in respect that the said John Andrew Hamilton had no right to the subjects let, and that his pretended title to the same ex facie of the Register of Sasines, being without warrant and inherently null, did not enable him to bind the defenders, the true owners, to implement its provisions."

Watson's trustees pleaded-"(2) It being jus tertii to the pursuers to found any plea upon the said decree of declarator and reduction and the said assignation, or upon the settlement of Mr Whyte, and title made up by John Andrew Hamilton thereon, and the defenders, the trustees of the late James Francis Watson, being able and willing to implement the conditions of the said agreement of lease, the defenders are entitled to be assoilzied from the conclusions of the summons."

On 7th November 1895 the Lord Ordinary (KYLLACHY) pronounced the following interlocutor:-"Finds, decerns, and declares in terms of the declaratory conclusion of the summons, declaring the term of Martinmas 1892 to be the date at which the pursuers were, and are now, and in all time coming freed and relieved of and from all the obligations purporting to be imposed on the pursuer Francis Robertson Reid by the agreement mentioned in the second conclusion, and reduces, decerns, and declares in terms of the reductive conclusions of the summons," &c.

Opinion.-"This is an action of declarator and reduction brought by the tenants under a mineral lease; and it is directed against the lessor and certain other parties who are (as it now appears) the true proprietors of the mineral field, and are also assignees to the lease under an assignation of the lessor's part of the lease granted by the lessor. The object of the action is to have it declared as against both defenders that the lease is no longer binding; and it seeks, as against both defenders, to reduce both the lease and the assignation. I do not know that I need refer to the exact terms of the summons. The proposition which it involves shortly is, that neither together nor separately can the defenders to any effect enforce the obligations of the lease as against the pursuers.

[His Lordship here stated the facts.] "The pursuers maintain that John Andrew Hamilton's title having been reduced, the lease in question entered into between them and hini is at an end; and in reply to the argument that the personal contract under the lease still subsists, and that the lessor, through his assignees, is still able and willing to perform the lessor's part of the contract, they contend (1) that they cannot be called upon to perform at the instance of John Andrew Hamilton, because, being no longer proprietor of the subject, he can no longer maintain them in

possession; (2) that the other defenders, although proprietors of the subject, have no title to enforce a lease to which they were not parties; and (3) that they (the other defenders) acquired no such title by the assignation under reduction, because (a) the contract of lease had, as they say, fallen before the assignation was granted, and (b) because the lessor's interest in a lease is not, as they say, assignable except as incident to a conveyance of the subjects let.

"Considered in point of principle, the questions thus raised appear to me to be difficult. I am not, I confess, prepared to accept the proposition that the reduction of a lessor's title per se puts an end to the contract of lease; so that although the lessor were still able by arrangement with the new owner to secure the tenant in continued possession, the tenant would nevertheless be at liberty to refuse implement of his part of the contract. On the contrary, I should think prima facie that both parties would in that case still be bound-bound, that is to say, by their personal contract. If either was liberated, it could only be by the other party being disabled from performance. And, at least in other contracts than that of lease of land, such disablement would not necessarily follow from loss or absence of title. There may, I apprehend, be a quite valid sale or hire of what is or turns out to be a res aliena; nor is there, so far as I know, any legal impossibility in the seller or hirer duly performing such a contract. He may be able to do so, and may do so quite duly, by arrangement with the true owner. The peculiarity, however, of the contract of lease of land is this-that it is

part of the lessor's obligation to give the lessee a title which shall be good against singular successors. And if, under a lease, the rent is or becomes payable to a person other than the proprietor of the lands, the lease cannot, I apprehend, be good against singular successors. That is to say, it cannot comply with the conditions of the Act 1449, c. 18. To secure, therefore, the lessee, and so perform his (the lessor's) part of the contract, it is necessary for a lessor whose title has been set aside, either to reacquire the subjects under a valid title, or effectually to transfer his contract rights to the true proprietor. And that being so, the question in the present case really to come to this-whether the pursuers are right in their contention that the assignation which the lessor has here made in favour of the other defenders is incompetent and inept. If such an assignation is incompetent-that is to say, legally impossible-there is of course an end of the matter. If, again, it is competent and effectual, there seems no reason why the lessee should be liberated.

seems

"Now, can it be affirmed that the assignation by Hamilton to the other defenders of his contract rights under the various leases which he had granted during his possession was incompetent and inept? Ex hypothesi at the date of the assignation the contracts of lease as personal contracts held good. There had, as yet, been no

Watson's

13

default-no failure on the lessor's part to perform his obligations. Why, the defenders ask, should there in these circumstances be any legal impediment to an assignation by the lessor to an assignee who is willing and able to give performance? There is of course no delectus persona with respect to the lessor under a lease; and as regards the suggestion that the lessor's interest cannot be assigned except as incident to a disposition of the subjects—that, the defenders urge, is a proposition unsupported by principle, unless in the sense (which is conceded) that such an assignation can only be effectual if made to the proprietor of the subjects-so as to vest in the same person the right both to the rents and the property of the subject.

"The defenders also urge, and I think with force, that the object of the defenders could have been obtained circuitously by a conveyance of the estate to Hamilton by the other defenders (which would have validated the lease by accretion), and a reconveyance by Hamilton to them which would have carried the lease as an accessory of the estate. That, they say, would have been clearly competent; and being so, they deny the right of the pursuers to compel such circuity of procedure. They also point out (although this is perhaps a different matter) that upon the theory of the pursuers, Hamilton remains liable to them, the pursuers, in damages for breach of contract, and is yet disabled from relieving himself by securing them in all their rights.

"I am bound to say that I feel the force of these considerations, and if the point at issue had been still open, I should have had great difficulty. But the pursuers found on a judgment of the Court in the case of Weir v. Dunlop & Company, 23 D. 1293, which they say is conclusive, to the effect that such an assignation as was here granted is incompetent. And the defenders do not profess, or at least have not been able to my satisfaction to distinguish that case from the present. That being so, I consider that I am bound by that decision, and do not feel at liberty to canvas its grounds. The only distinction which I can find-apart from the very unfavourable circumstances in which the question was there raised-is this, that in that case there was perhaps ground for holding that before the assignation there in question was made, the lessor had failed to keep the lessees in possession-they having before the date of the assignation been, as I gather, practically evicted by the true owner. I do not, however, find sufficient evidence that the judgment proceeded on that ground; and on the whole, I think my proper course is to follow the decision, which I need hardly say, looking to the Judges who took part in it, is one of high authority.

"I propose, therefore, following that judgment, to give the pursuers decree in terms of the conclusions of the summons."

The defenders reclaimed.

Argued for the reclaimers - The Lord Ordinary_rested his judgment on Weir v. Dunlop, July 17, 1861, 23 D. 1293. But that was a case of a very special character, and

might be distinguished from the present case by the fact that the original lessor there was never infeft, and had no higher right to the lands than missives of sale. The present case was one of a right granted by a party infeft in lands on an ex facie regular title, which was subsequently reduced. Hamilton was infeft on a notarial instrument, which was registered on behalf of the widow, Mrs Whyte, in liferent, and on his own behalf in eventual fee. That was at the date of the granting of the lease an ex facie valid and regular title, i.e., it was valid on the assumption that the destination to James Francis Watson as institute was evacuated by his dying without leaving a lawful male heir of his body. Real rights granted by a party infeft in lands on an ex facie valid title were good even if the title of the granter were afterwards reduced-Heron v. Stewart, May 30, 1749, Hume 440, 3 Ross, L.C. 243; Calder v. Stewart, November 18, 1806, 3 Ross, L.C. 248. Here, even admitting that a purchaser from Hamilton would not have obtained a good title, because he would have discovered, on examination of the record, the defect in Hamilton's title, the case of a lease was much stronger than that of a purchaser, because a lessee was entitled to rely on apparent ownership, and was not bound or entitled to submit the title of the lessor to an exact scrutiny. The law laid down in Rankine on Leases, p. 48, to the effect that if the lessor's title was reduced, or never existed, the lessee's title fell, was not supported by the case there quoted-Macniven v. Murray, May 25, 1847, 9 D. 1138. The ground of that judgment was that there was a reservation in the lease that if the title of the lessor should fall, the lessee's right should cease. Apart from these cases, the lease was good as the bona fide act of a possessor in the administration of property belonging to another-Mackenzie v. York Buildings Company, May 16, 1769, 3 Pat. Ap. 378. There was no delectus persona on the part of the lessee in the contract of lease. (2) Even supposing that the lease was not binding as between the respondents and the reclaimers without an assignation, yet the reclaimers had obtained an assignation of Hamilton's right in the contract. A lease was a contract sui generis and assignable, provided that the assignee was in a position to implement the conditions of the lease. Again, a lease by a party who had no title to the lands would be good if he afterwards acquired a title. If, therefore, when the title of Hamilton had been reduced, the reclaimers had conveyed the estate to Hamilton, and accepted a re-conveyance from him, they could, as singular successors, have enforced the lease. The same effect should be given to the assignation, because the law will not require circuity when a direct proceeding will suffice.

Argued for the repondents-(1) The case is ruled by Weir v. Dunlop, cited supra, which is practically indistinguishable. (2) The reclaimers are wrong in their assumption that the title of Hamilton, the original lessor, was ex facie valid. It was on the face of it a nullity, because the notarial