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should be no such destination. Kilchoan is not a landed estate of any importance. It is not a family estate, but a farm with a cottage residence. The only difficulty is, Did the truster mean the party who survived him or the party who survived his wife to get the fee? The strongest consideration against vesting is, that there is to be no actual conveyance of the lands till the widow's death. I am quite alive to the importance of the principle in Donaldson's Trustees, Feb. 11, 1862, 4 Macq. 319, that where there is a survivorship clause or an equivalent, it is to be referred to the period of distribution; and that if there is no life estate, we are to take matters as at the death of the truster; but where there is a life estate, we must hold that testator had in view the termination of that life estate. But while giving full effect to that consideration, we must take into account what else appears in the deed, in order to ascertain the intention of the truster. Here we have the declaration of a purpose, that the estate is to go to A. F. Campbell, "in case of his survivance of me," implying that the beneficial fee vested in him if he survived testator. Further down, we have a direction in case of the predecease of A. F. Campbell, or of the failure of heirs male of his body, to sell and apply the price in a certain way. It is not clear what is meant by the predecease of A. F. Campbell, but if it is to be consistent with what went before, it must mean predecease of the testator. All that is in favour of the view that the testator was contemplating the persons who should be alive at his own death. It is also remarkable that no other nephew is named who was past majority, and personally known to and in favour with the testator. But we must also look at the will. There is a little embarrassment from the Lord Ordinary not having decided where the fee of the L.5000 is, so that we can't do so either; but we must consider that question. The will creates a trust for behoof of the wife of the furniture, &c., to be delivered up at her death to the residuary legatee. That is to be done forthwith. The trustees are to lay out the balance for A. F. Campbell, who is to be residuary legatee; the trustees are to hold in trust for him, and his executors, administrators, and assigns; and if he die during the life of the testator, for the first and only son of A. F. Campbell, &c., whom failing, to certain other parties. The material thing is this, that not only are the trust-funds vested in the trustees for Archibald Frederick, but there is no trust for any one else, except in the event of his "dying during my lifetime." It seems perfectly clear that A. F. Campbell, having survived, became residuary legatee, and entitled to the L.5000 and the fee of the furniture under the will. If that be so, it leaves only this question, Whether it is most reasonable to suppose the truster intended the L.5000 and the furniture, &c., to go one way, and the lands another? It throws light on this if we remember that the lands are not the most important. The residue is a very important part of the estate, and it is not likely that he intended Archibald Frederick to get the one and not the other. This view is confirmed by the fact that the testator speaks of Archibald Frederick Campbell as "the head of my family if he survives me." Thus the will, in effect, gives the testator's own construction of what he meant in his first deed. If this be the right decision, that the fee is vested in A. F. Campbell according to the meaning of the testator, it does not trench on any principle of construction laid down in Donaldson's Trustees. For the details enable us to see that, though the conveyance was postponed, the testator intended vesting to take place at his own death. The only other
question is, whether the general disposition and settlement of A. F. Campbell has conveyed his right under Colonel Campbell's deeds to his mother. I have no doubt as to this. A. F. Campbell became fee-simple proprietor under a deed which would have made the subjects descend to his own heirat-law; and it is clear that in such a case, his general disposition and settlement conveys that right to his disponee. It is quite a different question whether, where there is a destination which requires to be evacuated, such a general disposition carries the disponer's right; and that question might quite consistently be decided in one way and this in the other. His Lordship concluded by saying that the case of Leitch's Trustees, Feb. 17, 1829, 3 W. and S. 366, was a direct authority for the decision of this; that nothing was now decided as to the effect of the election made by the widow; and that the Court should alter the Lord Ordinary's interlocutor for the sake of clearness, and simply find that the fee of the lands and furniture had vested, and quoad ultra remit to the Lord Ordinary.
Act.-Young & Crichton. Agent-W. Waddell, W.S.--Alt.-Advocatus & Millar. Agents-Adam & Sang, S.S.C. Agents for Trustees, A. & A. Campbell, W.S.
CAMERON V. Dow.-Dec. 21.
Reduction-Fraud-Act 1621 c. 18-Relevancy.
Action by Cameron against the trustee of the late Allan Cameron, and against the widow and children of Cameron, concluding for reduction, under the Act 1621, of a trust-deed granted by Cameron in 1847, and for count and reckoning of the estate and funds of Cameron intromitted with by the defender. The pursuer sued as a true creditor of Cameron for cash lent, and founded on a decree of the Court of Session in 1856 for L.108. The original condescendence did not aver that Cameron was insolvent at the date of granting the trust-deed; but a statement to that effect was added on revisal. The Lord Ordinary (Barcaple), referring to the cases of Wood 1. Dalrymple, Dec. 4 1823, and Bolden v. Ferguson, March 6, 1863, 1 Macph. 522, dismissed the action. His lordship said that there were special grounds for not adopting the more lenient course taken in the latter case, because here there was not in the original summons any statement implying the existence of any other creditor of the deceased, and it appeared from documents in process that in 1847 only a very small amount of the sum in the decree, only L.14 or L.15, was due to Cameron. The pursuer had brought his action on the assumption that he was entitled to have the reduction whether Cameron was insolvent at the precise date of the trustdeed or not, and was not entitled to introduce a new ground of action on revisal. The pursuer reclaimed; but the Court adhered.
Act.-Scott. Agent A. K. Morrison, S.S.C.-Alt.-Moncrieff. Agent John Ross, S.S.C.
LEIGHTON V. LINDFIELD.-Dec. 21.
Advocation from Stirlingshire. Lindfield sued upon a promissory note for L.44, said to have been granted by the advocator to a party with whom he was in partnership, and who endorsed to Lindfield. Defence that the
note had been impetrated from the advocator at the time that he was making a written acknowledgment to his partner of the state of the company's affairs, and that through his partner Somerville's fraud, he really signed a different document from what he believed himself to be signing. After proof the Sheriff-Substitute found that the defender had failed to establish his averment so as to overcome the presumption of onerosity, and decerned for the amount. The Sheriff adhered. The Court (Lord Deas diss.) adhered. Although there was a good deal of suspicion of unfair dealing in the evidence, it would not justify the Court in refusing to give effect to the general rule that a promissory note is an ex facie absolute obligation. Lord Deas was of opinion that it was clearly made out that the note had been obtained upon false representations. The onerosity or the probativeness of the document was not in question: the only question was, whether the document was a true one, and he thought not.
Act.-A. R. Clark & Lancaster. Agents-H. & A. Inglis, W.S. Alt.-Watson & W. A. Brown. Agent-Alexander Cassels, W.S.
CARNEGIE V. GUTHRIE.-Dec. 22.
Lease Singular Successor-Miscropping.
Carnegie brought this action of damages for miscropping against Guthrie, who had been tenant from 1844 of a farm, part of which the pursuer bought from Lord Kintore in 1861. Guthrie's lease expired in 1863. The lease was constituted by missives referring to general conditions.” These required the tenant to follow a five-shift course of cropping, and provided that a tenant wishing to adopt a four-course shift, or any other course of cropping, on any part of his farm, should "signify his intention to the proprietor and obtain his permission." Carnegie alleged that in the two years subsequent to his purchase of the farm the defender did not sow grass seeds in certain fields, so as to have one-year old grass in them in 1862 and two-year old grass in 1863, whereby he had suffered damage. The defence was that at the time he was cultivating his farm under a fourcourse shift with the knowledge and approval of the pursuer's author, Lord Kintore, which were binding on the pursuer. The Sheriff-Substitute found the defender liable; but the Sheriff (Heriot) reversed. The pursuer advocated; and the Court adopted the Sheriff's view. It appeared that from an early period of the lease the tenant had deviated from the course prescribed in the conditions. He was an "improving tenant "-having increased the arable land on the farm from 350 or 400 acres to 800; and it was proved that the execution of these improvements was not compatible with the regular adherence to the five-shift rotation. The course latterly followed by the tenant was also well known to the former landlord and his factor, and permitted by them. The purchaser, Mr Carnegie, was put on his inquiry by the terms of the conditions of lease, and should have ascertained at first what course of cropping was permitted.
Act. Sol.-Gen. and Gifford. Agents-Russell & Nicolson, W.S.Alt.-A. R. Clark and Hall. Agent James Webster, S.S.C.
TASKER V. SHAWS WATER COMPANY.-Dec. 22.
Action of declarator, adjudication, and damages, on the ground that the Company had refused to grant the pursuer a conveyance of a piece of land on the west side of Regent Street, Greenock, which, he says, the Company agreed by a minute of sale to sell to him. There was a proposal by htm to buy and an agreement by the defenders to sell. But when the deed came to be granted, the Company had begun to entertain doubts as to their power to grant an effectual disposition; to doubt, in fact, whether the ground in question really belonged to them. In consequence of these doubts, certain alterations were made on the proposed disposition, to the effect that the Company could not hold themselves out as heritable proprietors, and did not grant absolute warrandice, but only a conveyance in such terms as were consistent with the right they might be found to possess. Tasker struck out these alterations on the draft conveyance; and in this position of matters this action was raised, concluding that it should be found that the Company were bound to grant a disposition in the usual form, or that, if they failed to do so, they should be found liable in damages, and that adjudication should be granted if necessary. Defence that the Company were not satisfied that they were proprietors, that in fact they were not, the piece of ground really belonging to Sir M. S. Stewart; also that Tasker was a partner, indeed Vice-Chairman of the Company, at the time of the transaction, which was therefore altogether illegal and improper; further, that they had been led into the transaction by his misrepresentation; that he had had long experience in the affairs of the Company, and that when some members were dubious as to their property in this piece of ground, and put the question to Tasker, he had assured them that it belonged to the Company, and so led them into the difficulty.
A proof was led, and the Lord Ordinary (Jerviswoode) found that in respect of the position in which Tasker stood towards the Company, and the part he took in promoting the resolution of the Company to convey the subjects to himself, he was barred from insisting in the present action; sustained the defences and dismissed the action. The pursuer reclaimed. The Lord President said that the main question was whether the piece of ground in question was or was not part of the subjects conveyed in 1827 to the Company by Sir M. S. Stewart for particular purposes. His Lordship examined at some length the conveyance and relative plan; and upon the construction of these came to be of opinion that the Company had no control over the ground, and no title enabling them to give it out in feu to Tasker. It was out of the question to require the Company to give a conveyance with absolute warrandice. As to damages, the Company said they were not liable, because they were not to blame if Tasker had suffered loss by the transaction, in so far as he did not make profit which he expected to make, and sustained actual loss by having built a wall on the faith of it. His Lordship thought it a sufficient answer by the Company, that if they had agreed to sell what they had no power to convey, Mr Tasker could not complain of that, he having, as their Vice-Chairman and Director, advised them that they had such power. His Lordship, however, was not quite prepared to adopt the contention that it was irregular and illegal for one of their own Directors to buy from them.
Lord Curriehill concurred.
Lord Deas concurred in the result, on the ground that Mr Tasker, as an official of the Company, was disqualified from selling to himself as an individual; he could not both buy and sell the same thing.
Lord Ardmillan differed; holding that the transaction was not illegal, and that the Company had laid themselves under an obligation to convey. Absolvitor. (Note for Reference-Clark on Partnership, p. 209).
Act.-Clark and Lee.-Agents-Murray & Beith, W.S -Alt.Young and N. C. Campbell. Agents-Patrick, M'Ewen, & Carment, W.S.
WALLACE V. HENDERSON.-Jan. 11.
Action of damages laid on the allegations (1) that the defender agreed to lend a certain sum to the pursuer, and failed to do So, in consequence of which the pursuer suffered loss in his business; and (2) that the defender agreed not to call up the sum in a bond over the pursuer's property till the stipulated advances were made, and in violation of the agreement put the bond in force. The Lord Ordinary (Kinloch) reported proposed issues, expressing his opinion that the action was not relevant.
The Court concurred in thinking that, while it was possible to conceive a case in which a person agreeing to advance a sum for a particular object, and failing to do so, might be liable in damages, no case of that sort was set forth here, where the alleged agreement was to "credit the pursuer from time to time for cash and goods to be advanced and furnished;" and that as regards the second branch of the case, it could never be a ground of damages that a creditor enforced a just debt after the term of payment. Act.-Lee and W. F. Hunter. Agents-Hamilton and Kinnear, W.S. -Alt.-Clark and Macdonald. Agents-Horne, Horne, and Lyell,
ADAM v. GRIEVE, &c.—Jan. 18.
Statute-Election of Water Trustees.
Suspension and Interdict at the instance of certain members of the Police Board of Greenock, against Grieve and others, claiming to be water trustees, and to constitute, along with two of the complainers, Ballantyne and Neilson, "The Water Trust of Greenock," under the "Greenock and Shaws Water Transfer Act, 1866." The object of the suspension was in effect to challenge the validity of the election of the respondents as water trustees.
The 10th sec. of the Act directs that "the Board of Police appointed under the Greenock Police and Improvement Act, 1865, and which Board consists of the Provost and four Bailies, and remanent members of the Town Council for the time being, and of nine elective members chosen under the provisions of the Police Act, shall at their first meeting after the election of elective members in the year 1866, and at their first meeting after the annual election of elective members in each year thereafter, in the manner prescribed or authorised for the election or appointment of committees of the said Board, elect for the next ensuing year twelve of