No. 163. was a very delicate case, as the present may turn out to be for anything we can now see, and it turned very much upon the question whether, in point of fact, July 14, 1876. Scottish in the negotiations between the parties, the insured had knowingly undertaken Widows' Fund a warranty. Whether that question will arise here I cannot tell. But for all I v. Buist, &c. can now see it may occur, and that is a question which I think had better be determined by a Judge and not by a jury. No. 164. July 15, 1876. Pattison, and 1ST DIVISION. Sheriff of Mid lothian. M. LORD DEAS.-I am of the same opinion, and on the same grounds. An additional reason occurs to me for not going to a jury, that there are really three cases here, some points in which may be identical and some not. It would be both inconvenient and expensive to have three jury trials, and if the cases were all tried together the trial would be a very complicated one. That inconvenience is entirely obviated by the course your Lordship has suggested. LORD MURE. Had this been a pure question of alleged fraudulent representation on the part of the assured that might have been a reason for sending the case to a jury. But that is not the only question raised; and, in the whole circumstances, I concur in thinking that the case is better fitted for the determination of a Judge than for trial before a jury. LORD ARDMILLAN was absent. THIS interlocutor was pronounced:-" Recall the interlocutor, except in so far as it finds the defenders liable in expenses; and having heard counsel on the first, third, fifth, eighth, and tenth pleas for the defenders, repel the said pleas, and decern: Remit to the Lord Ordinary of new to allow the parties a proof of their averments, and to proceed further in the case as shall be just, reserving all questions of expenses. GIBSON-CRAIG, Dalziel, & Brodies, W.S.—James M'CAUL, S.S.C.—Agents. ALEXANDER BATCHELOR, Appellant. GEORGE HANDASYDE PATTISON, AND MACKERSEY'S EXECUTOR,— Expenses-Fees to Counsel.-Circumstances in which held that the Auditor might allow fees to counsel to be charged as between party and party though they had not been sent to counsel until after the judgment had been given. SEE ante, p. 914. In this case the appellant objected to the Auditor's report, in so far as he had allowed charges for fees to the respondents' counsel which had not been sent at the time when instructions were sent to counsel, they having, in the circumstances, declined to accept fees with their instructions. The respondents stated that the practice was well known, and, in cases like the present, quite reasonable, and referred to Tough's Trustees v. Dumbarton Water Commissioners, ante, vol. i., p. 879. LORD PRESIDENT.—What the Auditor proposes to do in this case, viz., to allow reasonable fees although they were not actually paid at the time, is consistent with a practice of long standing-a practice with which I was quite familiar while at the bar, and of which your Lordships are quite aware. The practice is reasonable in itself, and is not inconsistent with the provisions of the Act of Sederunt.1 The principle is that counsel and agents may feel that the circumstances of a case are such that the agent cannot consent to make charges or the counsel to receive 1 Act of Sederunt, Dec. 19, 1835. fees from their client, but they cannot have the same feeling to their client's No. 164. opponent, and when he is found liable this feeling will therefore disappear. July 15, 1876. Accordingly, it is quite reasonable that when the client's opponent has to pay Batchelor v. such a charge should be allowed by the Auditor. LORD DEAS and LORD MURE concurred. LORD ARDMILLAN was absent. THE COURT approved of the Auditor's report. WILLIAM SAUNDERS, S.S.C.-Agent. Pattison, and THE UNIVERSITY OF ABERDEEN AND OTHERS, Pursuers.-Asher-Jameson. No. 165. THE MAGISTRATES AND TOWN-COUNCIL OF ABERDEEN, Defenders. D.-F. Watson-Keir. July 18, 1876. Aberdeen v. Property Trust-Prescription-Mortification-Act 1696, c. 25.-By deed of Magistrates of mortification the granter assigned certain sums to the town-council of a burgh Aberdeen. to be invested and the proceeds applied towards the maintenance of a professor in a university. The funds were invested in land, which were managed for many years by the master of mortifications, an officer of the corporation, in whose name the title was taken. Afterwards the town-council appointed a portion of the lands, including a strip of land on the sea-coast, to be exposed for sale by public roup. The subjects were sold for payment of a feu-duty, and to a person who afterwards declared that he had purchased on behalf of the treasurer of the town, and the latter was infeft upon charter in his favour for behoof of the magistrates, council, and community. Soon afterwards the town-council, upon a representation that they were proprietors of the ground, obtained from the Crown a grant of the salmon-fishings ex adverso of the strip of land. In an action of declarator brought more than forty years afterwards by the university, with concurrence of two professors interested in the mortification, held (1) that the town-council still held the lands in trust for the mortification, and that they could plead no prescriptive right against the trust; (2) (rev. judgment of Lord Young) that, having acquired the fishings in the character of proprietors of the trust-property, they were bound to communicate the benefit to the trust, and hold them for behoof the trust; (3) (rev. judgment of Lord Young) that the consent and concurrence of the two professors gave the university a sufficient title and interest to sue for arrears. Observations (per Lord Deas) on Trust Act 1696, c. 25. M. THE following narrative of the facts is taken from the opinion of Lord 1ST DIVISION. Deas:-" By deed of mortification, dated 9th December 1613, Dr Duncan Lord Young. Liddell assigned and conveyed to the council of New Aberdeen, and Mr Thomas Nicolson, so long as he should be in life, 6000 merks Scots, to be employed on land and other sufficient security, and the annualrent thereof applied, to the extent therein mentioned, in maintaining a professor of mathematics in the college of New Aberdeen,-that is to say, Marischal College, and out of the surplus revenue to apply twenty merks annually in maintaining the library he had left to the college, twelve merks for poor scholars at the college and grammar school, and eight merks to the common poor of New Aberdeen. "By three separate deeds of mortification, executed respectively in 1613, 1622, and 1627, Patrick Coupland, a preacher in the Navy of the East India Company, gave, mortified, and destined to the provost, bailies, and council of the burgh of Aberdeen, and to their successors, provost, bailies, and council thereof, in all time coming,' 2000 merks Scots each, to be laid out by them on land or annualrent, and the yearly annualrent thereof to be given by them towards the maintenance of a learned divine Aberdeen. No. 165. and linguist, skilful in the Hebrew and Greek tongues,' in the college of the burgh-to be chosen by the provost, bailies, and council of the burgh July 18, 1876. for the time being. University of Aberdeen v. "It is proved by documentary evidence, and admitted in the record, that Magistrates of the sums thus mortified by Dr Liddell and Mr Coupland were accepted and received by the provost, magistrates, and town-council of Aberdeen, or, in other words, by the corporation of the burgh, in trust for the purposes for which they were thus mortified, and placed under the management of one of their number, chosen annually, called the hospital master. In 1704 they invested the amount, along with the funds of four other mortifications under their management, in the purchase of the pro indiviso half of the lands and barony of Torrie, then belonging to Sir William Forbes of Monymusk. The disposition executed by Sir William acknowledged receipt of the price from Alexander Hepburn, the then master of mortifications, out of the funds of the respective mortifications, and disponed the lands to him and his successors, master of mortifications of the said burgh of Aberdeen, heritably and irredeemably,' for the use and behoof of the mortifications therein enumerated, including those of Liddell and Coupland now in question. I understand it to be admitted that on this disposition infeftment followed in favour of the master of mortifications, and that when the lands and barony were afterwards divided in 1785, under a submission between the master of mortifications and the proprietor of the other pro indiviso half, the title of the master of mortifications to the one-half was completed in the same terms on which he had held the pro indiviso half,-that is to say, expressly as held by him in his official capacity in trust for the purposes of the several mortifications, the free rents being apportioned amongst them according to a scheme arranged with that view, the professor of divinity receiving the proportion of the income derived from Coupland's mortification, and the professor of mathematics his share of the income derived from Liddell's mortification, and the balance being appropriated to the other purposes specified in Coupland's deed. "Prior to 1796 the master of mortifications had, by authority of the provost, magistrates, and council, feued out various portions of the eastern half allotted to them in the division of the lands and barony of Torrie to different parties for payment of certain specified feu-duties. These feurights were granted in favour of third parties, and the feu-duties were made applicable and applied to their proper purposes. Consequently these feu-rights were quite within the power of the administrators of the mortifications, and are not sought to be challenged in this action, which relates solely to what came to be called the reserved portion of the divided half of the lands and barony of Torrie, so far as the university, which now comprehends what was formerly the College of Aberdeen, and the professors of divinity and mathematies are interested therein. "But in the year 1797 a transaction of a different description took place. By the feu-charter, dated 14th September of that year, James Dick, designing himself master of mortifications of the burgh of Aberdeen, in consideration of a feu-duty of £50 a-year agreed to be paid to him in that capacity, and to his successors in office, by Gavin Hadden, treasurer of the burgh, and his successors in the office of treasurer, for behoof of the burgh sold, alienated, and in feu-farm disponed to and in favour of the said Gavin Hadden and his successors in office, treasurers of the said burgh, and their assignees, for the use and behoof of the provost, bailies, council, and commnnity of the said burgh, and their successors, heritably and irredeemably, without reversion or regress, All and Whole that part of the east division of the said lands and barony of Torrie belonging in property to the said master of mortifications, lying on the south side of No. 165. the town of Torrie and south pier of the harbour of Aberdeen,' occupied by the tenants therein named; as also 'All and Whole that slip or piece July 18, 1876. University of of moor and pasture ground of the said lands and barony of Torrie lying Aberdeen v. along the Girdleness and Bay of Nigg, interjected betwixt the lands of Magistrates of North Kirkhill and South Kirkhill on the west, as distinguished by the Aberdeen. march-stones thereof, and the sea on the east, and betwixt the north-east part of North Kirkhill on the south, and the south pier of Aberdeen on the north,' as the same was then occupied by the tacksman thereof therein named; and in like manner All and Whole these several tenements or houses, yards, crofts, and butts of land therein mentioned, all lying on the east end of the village or fish-town of Torrie, and adjacent to the west end of Torrie pier, viz., the crofts and feu-duties therein enumerated, reserving to the feuars their feu-rights; likewise the said master of mortifications, his share, interest, and concern in the ferry-boat on the south side of the river Dee, belonging to the said lands and barony, as then possessed by Alexander Robertson, all which subjects above specified were excepted and reserved by the said master of mortifications when the remainder of his division of the said lands and barony were sold and feued out by public roup upon the 17th of June 1786.' Upon the precept of sasine contained in this deed, sasine was given to Gavin Hadden, treasurer of the burgh, for the use and behoof of the provost, bailies, council, and community of the burgh, on 20th April 1797, and the instrument of sasine was duly recorded on the 26th of the same month and year. This feucharter and sasine, which shew upon the face of them how the burgh acquired the subjects, form the only feudal title thereto in favour of the burgh at the present day." In 1801 the town-council applied by petition to the Lords of the Treasury, setting forth that they were infeft in the said lands, and craving a grant of the salmon-fishings in the sea opposite the slip of moor and pasture ground lying along the Girdleness and Bay of Nigg, the rent of which was 5s. per annum, This petition was referred to the Barons of Exchequer, and a crown-charter of the salmon-fishings opposite a considerable part of the lands was granted in 1804 in favour of the towncouncil, as proprietors infeft in the lands. No consideration was granted to the Crown therefor. * The charter, upon which infeftment followed, bore to be granted— "Propter favorem quem habemus erga praedilectos nostros prepositum, balivos, thesaurarium, concilium et communitatem civitatis de Aberdeen." From that time forward the town-council paid a feu-duty of £50 for the purposes of the mortifications, and themselves drew the rents of the strip of ground and salmon-fishings, which greatly increased in value since 1796. After the universities and colleges of Aberdeen were united by Act of Parliament in 1858 it was enacted by ordinance of the university commissioners that Liddell's mortification should be attached to the faculty * The petition stated, inter alia, "that a right of salmon-fishing is inter regalia, and belongs to the Crown, but where no private right has been formerly granted or established it has been the practice of the Crown graciously to grant such right to the heritors of the adjacent lands, which occasions the trouble of this application to your Lordships," and in a memorial to the Barons of Exchequer, the magistrates stated that in 1786 the slip of ground along the coast was reserved when the rest was feued, "principally with a view of enabling the town-council to purchase the same when necessary, to extend and increase the improvements of the harbour, which they were then, and at present are, carrying on at a very considerable expense, as well as with the express view of obtaining a grant of salmon-fishing opposite to those reserved lands." No. 165. of arts, and that Coupland's should be attached to the professorship of divinity and church history. Aberdeen. July 18, 1876. University of This action was raised against the magistrates and town-council of Aberdeen v. Aberdeen, as representing the community of the city, by the university, Magistrates of with consent and concurrence of Dr John Cruickshank, sometime professor of mathematics, and Rev. W. R. Pirie, professor of divinity and church history. It concluded for declarator that the reserved strip of ground, the share of the ferry-boat, and the right of salmon-fishing, were, to the extent of twenty-one twenty-second parts of twenty-seven one-hundredth parts, and to the further extent of twelve one-hundredth parts, held by the defenders, as trustees for behoof of the pursuers as beneficiaries under the mortifications of Liddell, Coupland, and Chalmerlaine,* and that the sale in 1797 was null. There were also conclusions for accounting and for reduction of the charter and sasine of 1797. The pursuers, besides the statements embodied in the foregoing narrative, averred that the price of the ground was grossly inadequate, and that the fishings were very valuable; also that the management of the mortifications having been in the hands of the town-council, the university authorities were not cognisant of the manner in which it had been attempted to defeat the just rights of the beneficiaries. The defenders averred that the feu-duty was higher than the rent of the ground at the time, though it had subsequently increased in value, and that the rent of the fishings was only £10 for a long time, though now they were let for £605; further, that the university authorities were fully cognisant of the transaction. The pursuers pleaded;-(2) The lands of Torrie and others, set forth in the summons, having been acquired to the extent foresaid by the funds of said mortifications, and having been thereafter allocated to the extent foresaid for the purposes of the said mortifications, were thereafter held in trust for the purposes foresaid, and could not be lawfully alienated. (3) The said salmon-fishings having been granted by the Crown to the towncouncil as proprietors of the said lands and others, the same accrued to and now belong to the said mortification to the extent of their interest in the said lands and others. (5) The alleged transaction by which the predecessors of the defenders are said to have acquired said lands and others, and everything which has followed thereon, is null and void, or at least reducible, in respect that the defenders and their predecessors could not lawfully purchase or acquire the subjects which they held in trust for the purposes foresaid. (6) The defenders and their predecessors, having received the profits and revenues of the foresaid subjects, the defenders are bound to count and reckon therefor in terms of the conclusions of the libel. The defenders pleaded;-(1) No title to sue. (2) Statements not relevant. (3) The defenders having possessed the subjects libelled on charters and sasines in their favour for more than forty years the present action cannot be maintained. (4) The present investments of the mortified funds having been made by the defenders within their powers as trustees the present action is unfounded. (5) In particular, the sale of the reserved portion of Torrie in 1797 was a fair and reasonable change of investment, and cannot now be challenged by the pursuers. (6) The pursuers and their predecessors having been cognisant of the purchase of the subjects libelled, other than the salmon-fishings, in 1797, and of the grant of the fishings in 1804, and having annually accepted the free revenue of the * Chalmerlaine's mortification was apparently inserted in the summons under a misapprehension. |