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act as a Commissioner of Supply for the County, and to appoint a TownClerk, Procurator Fiscal, and other officers. These powers had not been exercised in the burgh for thirty-eight years, and, the Court thought, need not be granted now, and a special application might be made for authority to appoint a Town-Clerk when it became necessary. Act.-Cook. Agents-T. & R. Landale, S.S.C.

JOHNSTONE BEATTIE V. J. J. H. JOHNSTONE.-Feb. 5.

Husband and Wife-Divorce-Marriage Contract-Provision-AnnuityAct 1573, c. 55.

By antenuptial contract, dated January 1860, the defender bound himself, during his lifetime, to pay to his son, whom failing, to the pursuer, whom failing, to the children of the contemplated marriage between his said son and her, an annuity of L.200. The pursuer now claims the annuity as payable to her in consequence of the dissolution of the marriage by decree of divorce obtained by her on 17th March 1865 against her husband for adultery. The Lord Ordinary (Kinloch) decided in favour of the

pursuer.

The defender reclaimed. Authorities cited-Act 1573, c. 55; Stair i 4.20; Bell's Pr. 1622; Ersk. i. 6.46 sq.; Bankt. I. 5.134; Justice v. Murray, M. 334; Thom v. Thom, 11th June 1852, 14 D. 861; Macalister v. Macalister, 26 Sc. Jur. 597; C. of Argyll v. E. Argyll, M. 327; 1 Bell's Com. 634; Dirleton v. Jus mariti; Wallace's Inst. p. 230 sq.; Calder v. Ross, M. 6167; Lord Mackenzie's Roman Law, pp. 110, 114. Before advising, a minute was lodged, stating that neither party desired that any other parties should be called, the defender not insisting in his plea of incompetency on the ground that the assignees of the husband were not called.

LORD PRESIDENT. This case is not free from difficulty. The question is-Whether, by reason of the decree of divorce obtained by the pursuer against her husband, the annuity of L.200 is now payable directly by him to the pursuer? The obligation is one of several provisions contained in the antenuptial contract of the parties. By that contract the husband disponed to trustees various interests he had in deeds mentioned, and the father of the intended wife, and she conveyed also certain interests she had to the same trustees. Provision was made for payment of certain sums to the intending husband, in the event of the death of his father and fatherin-law; and there were provisions for children. The annuity of L.200 gives rise to the present question. In its conception and terms it is, in the first place, an obligation to pay to the son; but the divorce having occurred the wife contends that she has now right to receive the L.200 during the life of Mr Hope Johnstone, senior. On the other hand, he contends that it is not payable to her till his son's death. It is contended, on the one side, that the words "whom failing" mean "failing by death" only; and on the other, that they truly mean failing by the cessation of the relation of husband and wife by the misconduct of the former. I am of opinion that, when this contract was framed, there was not in the contemplation of any of the parties any failure but the failure of the husband by death. But that does not necessarily solve the question. The question remains, when the marriage was dissolved by the divorce of the husband, and

It

when the object for which this provision was made has been disturbed by that event, what are the rights of the party wronged. It is important to observe that this is not a separate and independent bond of annuity by the father to his son. It is contained in a contract of marriage intended to provide for the maintenance of the wife in the event of her survivance. was not, indeed, provided by the husband directly, but by his father; but there can be no doubt of the onerosity of such an obligation. The contention, however, is that the conditions subject to which it was undertaken have not been fulfilled to the effect of raising up the rights of Mrs Johnstone Beattie. But if she has a right, it depends not merely on the words of obligation but on the way in which the law of divorce operates on such provisions. Some things are very clearly operated on by the law of divorce. Rights provided to the wife by the husband generally become due on their being separated by his divorce for adultery, just as if the marriage were dissolved by his death. The general principle of the law is not disputed. Here the question is as to an obligation undertaken by a third party. That, however, is not the most important consideration, but rather the nature of the transaction in reference to which the obligation was undertaken, and the purposes it was intended to fulfil; and, seeing that it was undertaken entirely in the view of the marriage being dissolved, and for the comfortable subsistence of the wife, it belongs to the class of obligations which emerge to the wife on the divorce of the husband in the same way as by his death. The great argument urged for the defender is that it imposes on the father of the husband a double obligation, he being still under a moral or natural obligation to maintain his son. I think that is not a sound answer. Many cases might be figured in which the natural obligation might arise after the father had made such a provision as this. It is not necessary to look further than the present case to see that that misfortune might befal a father in various ways. There is no restraint in this deed on the son's disposing of this annuity; and it appears on the record that he has actually done so. The question might arise as between the assignees of the husband and the granter of the obligation; and it would be no answer to them that a moral obligation is thereby added to the conventional obligation to pay the annuity. So also the annuity may be attached by creditors of the husband from time to time, and the father may yet obtain no relief from the original natural obligation.

LORD CURRIEHILL had great difficulty, chiefly from these peculiarities:(1) That this was a personal obligation; (2) that the failure contemplated was manifestly failure by death; (3) that the gift was absolute and unconditional, there being no condition that it should not be assignable or attachable by creditors; (4) that, in the exercise of the right, the husband had, in fact, assigned it away, thus transferring to the assignees the jus crediti. The question came to be in reality whether the decree of divorce had the effect of transferring the jus crediti from these assignees to Mrs Johnstone Beattie. Full effect should be given to the provision of the Act 1573; but the question here was-Do the assignees tine their right in consequence of the divorce? It was a difficult question; but his Lordship could not see how this could come under the Act 1573. The Act had, indeed, been extended to rights proceeding from third parties; but in all the cases cited the right had already vested in both spouses-it was a conjunct right. There was no case in which it had been applied to a donation from third

parties, unless that third party were denuded, and the subject of the provision vested in the spouses. A very nice question would have arisen if Mr Hope Johnstone, senior, instead of obliging himself to pay an annuity, had bought an annuity from an insurance office and assigned it to the spouses, on the footing that the lady's right should commence on the death of the husband, for she would then be one of the owners of the right from the beginning. That was not the case here. Neither of the cases of Justice and Thom referred to a mere personal obligation, in which during his life the husband was the sole creditor. His Lordship must have differed even if the question had been with the son himself. Still less could third parties, having acquired the right for an onerous consideration, forfeit it by the fact that their author's wife had obtained decree of divorce against him. In another aspect of the case there was difficulty. This right was a proper annuity-a heritable right. It might be contended that for this reason Mrs Johnstone had right to it from the date of her marriage. Although his Lordship had vacillated upon this matter, it did not lead him to a different result. The wife and children were successors one of the other, and Mr Johnstone as institute was absolute owner during his life, with power to convey, and the right of his assignees could only terminate at his death. His Lordship could not hold the divorce to create a devolution.

LORDS DEAS and ARDMILLAN Concurred with the Lord President; and the Court adhered, with expenses.

Act.-Fraser and M'Kie. Agents-Jardine, Stodart, & Fraser, W.S. -Alt-Young, Gifford, and Hope. Agents-Hope & Mackay, W.S.

MARSHALL V. WINK.-Feb. 14.

Sequestration-Appeal.

The trustee on a sequestrated estate rejected a preferential claim by a law agent on a certain fund. The claimant appealed, and the trustee stated, among other preliminary pleas, that the appeal was incompetent, in respect that the trustee had, at the same time that he rejected the appellant's claim, sustained a claim by Mr Wotherspoon, which exhausted the whole fund, and that, no appeal having been taken against that deliverance, it was now final; and (2) that at least the deliverance in Mr Wotherspoon's favour was res judicata in reference to the fund in dispute.

These pleas were repelled.

Act.-Johnstone. Agents-Marshall & Stewart, S.S.C.-Alt.-Scott et Gifford. Agents-J. Walls, S.S.C., and W. Wotherspoon, S.S.C.

MILES V. NORTH BRITISH RAILWAY COMPANY.-Feb. 16.

Title Trust-Declaratory Adjudication-Lards Clauses Consolidation Act.

Petition for warrant to uplift money consigned as the price of subjects obtained by the Company under compulsory powers, and consigned as a condition of entering on lands. It was afterwards agreed that the sum consigned should be the price of the subjects. The company objected that the title offered by the petitioner was insufficient. The only objection insisted in arose in connection with a conveyance in 1807 by the original feuars

to the Incorporation of Barbers of Leith. The title was taken to Henry Johnson, deacon, and Wm. Andrew, boxmaster, of the corporation, for themselves, and as representing the corporation, in terms showing that, though the feudal title was in them, it was qua trustees for the corporation. It was a condition of the title that the persons who were to have power to sell were not the disponees, but the deacon and boxmaster for the time, and only when specially authorised by the corporation. The trustees were infeft. In 1817, the corporation duly granted authority to sell the subjects, and a disposition was executed by the then deacon and boxmaster, and concurred in by William Andrew, who had ceased to be boxmaster. Henry Johnson was dead. After several subsequent transferences, the petitioner obtained the beneficial right by charter of resignation in 1861. The objection was that the feudal title had been in two trustees, of whom only one concurred in granting the conveyance; and that half the subjects were in the hæreditas jacens of Henry Johnson.

LORD CURRIEHILL said there was a good contract of sale by the corporation, who had the beneficial right. Johnson was only a trustee, and his heir could never have been served and retoured as nearest lawful heir in these subjects. The first answer to the objection was that the trust had been vested in two individuals, one of whom was still alive when the time came for denuding. It was said that the fiduciary right did not accresce; but he would not express an opinion as to that point. It was enough that the beneficiaries had transferred their beneficial right habili modo to the company, who might take what steps they pleased to complete their own title. It had long been settled that, where subjects are vested in trustees who die not denuded, the beneficiaries or persons in their right may complete their title by declaratory adjudication. A century ago there was great difficulty as to this; but the rule referred to was solemnly determined in 1756 and 1758 (Dalziel v. Henderson and Dalziel, M. 16,204, App. Trust, 1; Drummond v. Mackenzie, M. 16,206, 1 Ross L. C. 320). His Lordship referred also to Gordon's Trustees v. Harper, Dec. 1821, F. C. (1 Ross, L. C. 499), and to summons of declaratory adjudication in the Juridical Styles. The seller here did not ask the company to make up his title.

The Court adhered to the interlocutor of the Lord Ordinary (Mure) repelling the objection.

Act.-A. R. Clark and J M'Laren. Agents-White-Millar & Robson, S.S.C.-Alt.-Sol.-Gen. and Thoms. Agents-Dalmahoy & Cowan,

W.S.

THOMSON V. NORTH BRITISH RAILWAY COMPANY.

This was a petition similar to the preceding, involving the objection that a disposition to 1806 had not the word "dispone" in the dispositive clause, in which the words were "sell, alienate, and make over." It contained an obligation to infeft, procuratory of resignation, conveyance of writs and evidence, a precept of sasine, and obligation of absolute warrandice.

LORD CURRIEHILL said there was at all events a good contract of sale, giving a right which was transferred to the present petitioner, who had conveyed it to the railway company. The case was to be decided on the same principle as the last, and the objection repelled.

CONNELL V. GRIERSON.-Feb. 20.

Entail-Succession-Destination of Heritage to "next of kindred."

Two actions of declarator at the instance of James Walter Ferrier Connell and his administrator-in-law, to have his right as heir of entail to the estates of Over Kirkcudbright and of Auchenchain declared, and certain titles made up in the person of the defender reduced. The question depended on the meaning of the clauses of destination in two entails made in 1779 by William Collow. It was decided (Feb. 23, 1866, 4 Macph. 465) that the final destination in the deed of entail " to my own nearest of kindred, and their heirs and disponees whomsoever," contained a good tailzied destination effectual against prior substitutes; and that Mr. Gilbert Collow, the last substitute in possession, who died in 1863, had held under the fetters of a strict entail. Connell now claimed as nearest heir-female under the second branch of the destination, and also, assuming that contention to fail, under the final destination to the testator's own nearest of kindred and their heirs, as being his nearest heir of heritage as great-greatgrandson of his brother. Miss Grierson claimed under the final destination as nearest of kin to the entailer, being his sister's grand-daughter.

Lord Curriehill: The first branch of the destination to the heirs-male of grandsons had failed. The first question arose under the first step of the second branch, which was to the heirs-female of John Collow, the institute. The question was as to the meaning of the words heirs-female. If these words were to be taken in the ordinary sense, so as to be equivalent to the heirs whomsoever of John Collow, though females, these would not have failed. It was, indeed, admitted that, if John Collow's heir-female general was entitled to succeed, the pursuer should have his declarator; but otherwise, if the words should be properly construed to mean, according to the intention of the testator, heirs-female of the body of John Collow. In the latter event, that branch of the destination had entirely failed. In the ordinary case, a destination to heirs-female had a very wide signification, being equivalent, in fact, to one to the heir-atlaw. The term must be read in its ordinary sense, unless the context shows that the entailer used it in a different meaning.

After examining the terms and tenor of the deed his lordship came to be of opinion that the words might be understood in their narrower sense, and that therefore the pursuer's claim under this head could not be sustained. The third branch of the destination, which was to certain collaterals, had failed, and was not in question. The fourth was to persons to be nominated by the testator, which he had not done, and to his nearest of kindred. The question therefore was, who were to be understood by next of kin in a destination of heritable property? The words had no fixed meaning in the law of Scotland, and it was necessary to penetrate into the mind of the testator himself. He intended the party succeeding to the lands to be in the position of an heir of entail, which implied that he should be able to serve as heir of entail to him; otherwise he could not have the necessary qualification. It was to be presumed also that only one person at a time could be served and retoured in that capacity. He must also be of th blood of the testator. The difficulty was how the propinquity was to be reckoned. There were various rules in different countries; and even in VOL. XI. NO. CXXIII.-MARCH 1867.

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