the estate of their maternal grandfather. This latter fund was administered by John Howie along with the estate left by Dr Howie.

In June 1893 Dr Howie's daughters being then aged eleven and ten respectively, their aunt Miss Maggie Harris, with whom they had lived since their father's death, presented a petition craving the Court to sequestrate the trust estate, to remove John Howie from the offices of trustee and tutor and curator, and to appoint a judicial factor.

The petitioner averred, inter alia-"It has been ascertained that some time after Dr Howie's death the said John Howie junior paid away to his father John Howie senior, out of the funds under his charge, as trustee and as tutor and curator, a sum of £175 or thereby in discharge of a pretended claim by the said John Howie senior for expenses of aliment and education alleged to have been incurred on behalf of the deceased Dr Howie, his son. The said John Howie senior was taken before a J.P., and swore to the correctness of his account, which was then paid." The petitioner also complained that the income hitherto received by her from John Howie for behoof of Dr Howie's daughters did not exceed £57, 10s. per annum, and that John Howie refused to increase this allowance, though, as she alleged, it was impossible to continue their upbringing on so small an expenditure. She expressed the belief that John Howie's conduct in refusing to increase the allowance for the children's maintenance was partly due to the fact that in the event of the death of the children, who were not in robust health, he would himself succeed to a considerable part of the estate under his charge.

John Howie lodged answers in which, inter alia, he averred-"In his early days Dr Howie, after being educated as a pupil teacher, desired to attend college and qualify himself as a doctor of medicine. As he was possessed of no funds, and his father, who was a builder in Alyth, was comparatively a poor man, it was arranged between them that Dr Howie should keep a pass-book, in which he was to enter all the advances made by his father towards his board and college expenses. Dr Howie did so the advances, as shown by the passbook, amounting to £183, 17s. 6d. When on his deathbed, Dr Howie sent for the respondent, whom he had appointed his sole trustee and executor, exhibited to him the pass-book, and charged him to repay out of his estate to his father the amount of the advances made by him. After the said John Howie senior filed an affidavit and claim before a Justice of the Peace for the above advances, and emitted an oath as to the correctness thereof, the respondent, acting on the instructions given by the deceased, paid the same. The pass

book, affidavit and claim are herewith produced and referred to." He submitted that the prayer of the petition should be refused.

The pass-book produced contained entries of sums received and expended by Dr

Howie while he was at college. Various sums were entered as having been received from his father; other sums as received from other members of his family or from himself; while certain sums were entered merely as cash received, without any statement of the source from which they were derived. The father's claim included both the sums entered as received from him and also the sums entered merely as cash received.

Argued for the petitioner - Advances made by a father to a son for the son's education or to start him in life create no debt exigible from the son unless the son has granted a written obligation to repay the sums advanced-Nisbet's Trustees v. Nisbet, March 10, 1868, 6 Macph. 567. [LORD KINNEAR-In Williamson v. Allan, May 29, 1882, 9 R. 859, it was laid down that a written acknowledgment by a son of the receipt of money from his father opened the door to the admission of evidence of the animus with which the money had been given by the father.] There was here no such writ under the son's hand as to instruct the claim made by the father, Apart from the fact that the parties stood in the relation of father and son, the writ here relied on was jottings in an accountbook, and these were not sufficient to instruct a loan-Wink v. Speirs, March 23, 1868, 6 Macph. 657. Further, the sum paid to the father included sums which were not entered in the account-book as having been received from him. In paying the father's claim the respondent had sacrificed the interests of the estate in his charge, and had committed a breach of trust. A sufficient case had therefore been made out for the trustee's removalM'Whirter v. Latta, November 15, 1889, 17 R. 68, per Lord Lee, 71. But if the Court thought it preferable they might adopt the course followed in a recent case, and sequestrate the estate without removing the trus tee-Stewart v. Morrison, July 14, 1892, 19 R. 1009.

Argued for the respondent-Before the Court could grant this petition they must be satisfied that there had been distinct malversation on the part of the trusteeGilchrist's Trustees v. Dick, October 20, 1883, 11 R. 22; Taylors v. Horn and Others, July 18, 1857, 19 D. 1097. But there was no allegation here that the payment complained of had been made dishonestly and not in bona fide, and the petitioner's case therefore failed. Further, the trustee had acted rightly in paying the father's claim, as it was a proper debt legally exigible from the son's estate. If the advances were to be treated as a slump transaction, the debt was sufficiently vouched under the son's hand, and if they were to be taken separately, they were mostly under £8, 6s. 8d. and parole proof was competent.

At advising

LORD PRESIDENT-The petition contains a number of statements as to the administration of the trustee whom we are asked to remove, but attention has from the first been concentrated on one act of his

v.

which is specially and strenuously challenged, namely, the payment of a sum of money as a debt due to the father of the deceased. It is important to observe that while the petitioner complains that the trustee's administration has resulted in a small annual sum only being available for the testator's children, at the same time she does not present any case to justify us in condemning the trustee for refusing to make advances for the children out of the capital of the estate. Up to the present the children have received from their father's estate and from another source about £60 per annum, and considering their tender age and moderate requirements it is not possible to condemn the trustee for exercising his discretion in the way he has done.

I pass on to observe that it does not appear to be part of the petitioner's argument that there is any substantial case of danger to the extant estate. Nothing is said about the circumstances or the general conduct of the trustee to cause any feeling of alarm as to the safety of the estate now in his hands. The only question therefore is, whether his action in paying the alleged debt was such that for the safety of the estate we should remove him or appoint a judicial factor? It is very important in a matter such as the payment of debt, that the petitioner does not go the length of asserting that the trustee acted fraudulently, or was party to a trumped up claim by the father of the deceased, whom it is suggested he might prefer to his nieces. The importance of such an averment would be so great, that in view of the fact that the petitioner has abstained from making it we must treat the case on the footing that she was not in a position to make it. The question therefore comes to be, whether the lax or too easy conduct of the trustee in making the payment complained of is a sufficient ground for removing him from the office of trustee. Taking the case in that light, it is certainly not the kind of case described by Lord President Inglis in the case of Gilchrist's Trustees, where he says "In order to justify us in adopting so extreme a measure as the removal of a trustee, there must be something more than mere irregularity or illegality. We are not in the habit of removing trustees unless there has been a decided malversation of office." I do not think that on the story of the petitioner, especially as instructed and enlightened by the documents which have been founded on, there is any case of the kind described by Lord President Inglis. It may be the case that the debt was insufficiently instructed, and that the trustee lost part of the trust estate by too easily admitting the validity of the claim, but that is not enough to justify us in removing him from his office.

The alternative is that we should sequestrate the estate and appoint a judicial factor. That is a question which must be determined upon a consideration of the estate, and it is obvious that if we decided to grant sequestration the ratio of our

judgment would be that an action might immediately be raised by the factor either to recover from the deceased's father the amount paid to him, or to force the trustee to pay that amount back to the trust estate. On the facts before us I am not going to say whether, if such an action were raised and came to be tried, our decision would be one way or the other. I can quite see that there are grounds on which the question might be canvassed whether there was legal evidence of the alleged debt, but the question we have to decide is whether we are to pledge the remaining £300 of the estate in a litigation for recovery of that portion which has been paid away, for if that were not done the sequestration would be nugatory. I do not think we should take that course, and I am moved largely to this conclusion by the fact that our decision does not in any way prejudice the question whether these children, when they come of age, may not, if so advised, try to get the money back. In short, we say nothing as to the propriety or otherwise of the payment in question.

I am therefore in favour of refusing the petition in both its branches, and I may repeat that in so doing we in no way prejudice the merits of the question regarding the payment made to the deceased's father.

LORDS ADAM, M'LAREN, and KINNEAR concurred.

The Court refused the petition.

Counsel for the Petitioner-Clyde. Agent-James Ayton, S.S.C.

Counsel for the Respondent - ShawGraham Stewart. Agents Cowper, & Curror, W.S.

Thursday, October 26.

SECOND

BLAIR

DIVISION.

2. THE CALEDONIAN RAILWAY COMPANY.

Erpenses-Fees to Counsel-Jury TrialDiscretion of Auditor.

In an account of expenses of a jury trial for damages for personal injury which lasted one day at the sittings, the Auditor reduced the fee of senior counsel from £21 to £13, 13s., and of junior counsel from £15, 15s, to £8, 8s. Objections were lodged, the ground that the Auditor had reduced counsel's fee below the sums which had been fixed to be the proper fees by decisions of the Court.

on

The Court refused to interfere with the Auditor's discretion.

This was an action for damages for personal injury. The case was tried at the July sittings 1893. The verdict was in favour of the pursuer. The defenders were found liable in expenses. When the case

came before the Court on the pursuer's account of expenses, the pursuer objected thereto, on the ground that the Auditor had reduced the fees of senior counsel from £21 to £13, 13s., and of junior counsel from £15, 15s. to £8, 8s.

He argued-A series of decisions fixed the proper fees to be paid to counsel for an ordinary jury trial, and the Auditor had no discretion in reducing them except in exceptional circumstances, which did not arise here. If the Auditor had affixed a note to the account stating on what ground he had reduced the fees, his position would have been more intelligible. He had not done so, but had arbitrarily reduced the fees without stating any ground. The Court ought to restore the fees as originally given-Cooper & Wood v. North British Railway Company, December 19, 1863, 2 Macph. 346; Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149; Black v. Mason, March 18, 1881, 8 R. 666.

At advising

LORD JUSTICE-CLERK - The Auditor is an officer of Court, and necessarily he has before him the decisions of the Court in cases of this kind, and having these decisions before him, he considers whether any particular fee ought to be charged in a particular case. I should have been surprised if any decision had laid down that it was part of the Auditor's duty to give any particular fee in any particular class of cases, because in each case he must consider the whole circumstances of the case. The Auditor has considered the circumstances of this case, and thought that these circumstances justified him in cutting down this fee. Unless in very strong and exceptional circumstances I should not be inclined to interfere with the Auditor's discretion as to what a particular fee ought to be in any particular case.

LORD YOUNG-I admit I am surprised at this objection. Since I have sat in this Division we have always refused to interfere with the discretion of the Auditor in taxing these accounts of expenses. Not on the ground that we could not interfere, but on the footing that under no ordinary circumstances would we interfere with his discretion. It may be possible to imagine some case in which we would, but I think it would be only a fancy case. It is obvious-and most of us know it from experience-that the fees sent to counsel vary in different cases and for different reasons. We have now got as Auditor a gentleman who has had longer experience in such matters as this than anyone else, and whose good sense we all know, and it would require a very strong and exceptional case to make me interfere with his decision in any particular case. Here we have no ground for interference stated at all except it be this, that the Court ought to lay down a general table of fees for the guidance of the Auditor, and that we ought to revise his decisions in each case. That is not the kind of work for which the Court is fitted. I think we ought to dismiss these objections.

Tuesday, October 31.

FIRST DIVISION.

[Lord Stormonth Darling, Ordinary.

ELIOTT'S TRUSTEES v. ELIOTT. Trust-Powers of Trustees-Lease-Con

struction-Reduction.

A testator by his trust-disposition and settlement empowered his trustees to let the mansion-house of W. from year to year, or, if they should think fit, to permit the heir of entail entitled to succeed to his lands under a deed of entail which he had executed, to possess the mansion-house rent free, but only for such space as they should think proper.

The trustees subsequently granted a "lease," whereby, on the narrative of the powers conferred upon them by the testator, they let the mansion-house to the heir of entail for the space of one year from the term of Whitsunday 1879, "but renewable from year to year as after mentioned." It was further provided that in the event of the said heir "not giving notice to the trustees six months before the term of Whitsunday" in any year "of his intention to remove from the subjects let at said term . . . this lease shall be held to be renewed for another year."

In an action at the instance of the trustees, the Court held (1) that by the terms of the "lease" the trustees divested themselves of all power to ter minate the heir of entail's occupancy of the mansion-house; and (2) that in doing so they had exceeded the powers given them by the testator, and therefore reduced the lease, and ordained the heir of entail to remove.

Sir William Francis Eliott of Stobs and Wells died on 3rd September 1864, leaving a trust-disposition dated 14th October 1863, whereby on the narrative that he had executed an entail of Wells on the same date, and that it was his purpose that his debts should be paid out of the rents of his lands as they accrued, and out of his moveable estate, and that when the heirs of entail should be put in possession of his said lands they should be so free of any burden or obligation in respect of his debts, he conveyed and made over to trustees the lands and estate of Wells, and his whole other estate, heritable and moveable. By

Trs, v. Eliott

31, 1893

this settlement the trustees were given power "to let from year to year the mansion-house of Wells, with the office houses, yards, orchards, enclosures, plantings, woods, and policy thereto belonging, and likewise any part of the ground adjoining not exceeding in whole (in addition to the woods and plantations) two hundred and fifty acres Scots measure, and to set tacks of the remainder of the said lands, baronies, and others thereby disponed for any period not exceeding nineteen years," and it was further provided . . . that during the subsistence of the trust it should be in the power of the said trustees, if they should think fit, to permit the institute or heir of entail entitled to succeed to his lands, baronies, and others in terms of the deed of entail before mentioned, to possess the mansion-house of Wells, with the office houses, yards, orchards, enclosures, plantings, woods, and policy thereto belonging, and likewise any part of the ground adjoining, not exceeding in the whole (in addition to the woods and plantations) two hundred and fifty acres, Scotch measure, and that rent free, but only for such space as the said trustees should think proper, and upon condition that the said institute or heirs should severally be bound during their respective possessions to keep and preserve the whole premises in constant, good and sufficient order, condition, and repair."

In 1879 part only of the truster's debt having then been paid off, an instrument called a lease was entered into between the trustees under the above trust-disposition and settlement, and Sir William Francis Augustus Eliott, the heir of entail, under the said trust-disposition and relative deed of entail. This "lease," after narrating that by the trust-disposition and settlement the trustees were empowered to let from year to year the mansion-house of Wells, with the garden, offices, and policy belonging to it, and that they were further empowered to give Sir William Francis Augustus Eliott possession of the mansionhouse and policies "free of rent if they think fit," went on to let to Sir William Francis Augustus Eliott, but excluding assignees, legal or conventional, and subtenants, the mansion-house of Wells, with the garden, offices, and policies thereof, also the exclusive right of fishing in the river Rule and its tributaries, so far as they ran through the estate, also the exclusive right of shooting on the estate, "and that for the space of one year from and after the term of Whitsunday 1879, which is hereby declared to be the term of his entry thereto under this tack, but renewable from year to year as after mentioned." After containing certain obligations by Sir William Francis Augustus Eliott regulating his rights of possession, the "lease" proceeded-"And it is hereby provided and declared that in the event of the said Sir William Francis Augustus Eliott not giving notice to the said trustees six months before the term of Whitsunday next, or before any subsequent Whitsunday, of his intention to remove from the subjects let

at said term of Whitsunday, this lease shall be held to be renewed between the parties hereto for another year, on the same terms and conditions as are before provided."

In virtue of the above deed Sir William Eliott entered into possession of the subjects thereby "let" to him, and he subsequently refused to remove therefrom, though the trustees gave him notice of their intention to bring the lease to an end.

In October 1872 Mrs Wood and others, the trustees under the above trust-disposition and settlement, brought an action against Sir William Eliott, concluding for declarator that the foresaid lease might be brought to an end by them on giving six months' notice to the defender, and that the defender was bound to remove from the mansion-house of Wells and other subjects let to him on receiving such notice, or alternatively for reduction of the pretended lease, and for decree ordaining the defender

to remove.

The pursuers pleaded, inter alia-“(1) The said lease being valid only for the period of one year unless renewed, the pursuers are entitled, after giving due notice to the defender, to bring it to an end at the end of any year of its currency, and particularly at the term of Whitsunday 1893. (3) Alternatively, the pursuers are entitled to decree of reduction as craved, in respect (1st) that it was ultra vires of the trustees of the late Sir William Eliott to grant the said lease, and (2nd) that the said lease having no definite ish, is itself inept and bad."

The defender pleaded, inter alia-"(3) The said lease on a sound construction thereof is terminable only on the defender giving six months' notice prior to Whitsunday of any year, and he having given no such notice, he is entitled to absolvitor from the declaratory and removing conclusions of the summons, with expenses. (5) The reasons of reduction of the said lease are irrelevant."

On 17th February 1893 the Lord Ordinary (STORMONTH DARLING) Sustained the third plea-in-law for the defender, found that there were no relevant reasons averred by the pursuer for reducing the lease libelled, and therefore assoilzied the defender from the conclusions of the summons.

"Opinion. The pursuers, who are the trustees of the late Sir William Eliot of Stobs, under his trust-disposition and settlement, and also under a private Act of Parliament obtained in 1865, ask for declarator that a lease of the mansion-house of Wells with the shootings and fishings, which they granted to the defender, the present baronet, in 1879, may be brought to an end by them at any term of Whitsunday on six months' notice; and alternatively they ask for reduction of the lease as having been granted ultra vires. There are thus two questions raised on this record. The first is, what is the true construction of the lease; and that depends upon the words which are quoted in condescendence 6 and condescendence 7. I am clearly of opinion that the true construction of the lease is that it is a lease for one year, but renew

able by the defender from year to year as long as he lives, by simply abstaining from giving notice of his intention to remove; or, in other words, that it cannot be brought to an end by the trustees during the defender's life, but it may be brought to an end by Sir William himself, on giving notice to them six months before any term of Whitsunday. Now, that is not precisely a liferent lease, although it partakes of the character of it, because Sir William is not bound for the whole period of his life. On the other hand it cannot extend beyond his life. It would have been a very odd and one-sided kind of arrangement to make with a stranger, but it is not at all surprising when the grantee is the institute of entail. I would only observe with regard to the question of construction, that if any other were adopted, I am at a loss altogether to account for the presence of the clause quoted in condescendence 7, because if the intention had been to give either party the right to terminate the lease, it would have been very easy to say so in distinct words, or else to say nothing at all, and to leave the question of renewal to the operation of tacit relocation. Therefore I can only account for the existence of this clause by supposing that it was intended to give Sir William Eliott the power to renew it, and to prevent the trustees having the power to put an end to it.

"Then arises the second question, whether, if that be the true construction of the lease, it ought to be reduced as being either ultra vires, or as being bad in itself for want of a definite ish. Both of these grounds are pleaded by the trustees in their third pleain-law. I do not think that there is any relevant averment which would support either view. With regard to the lease having no definite ish, I think it is a sufficient answer to say that it is a lease from year to year, although renewable by Sir William Eliott so long as he lives. With regard to the other ground, of its being ultra vires, I could have understood that plea if it could be shown that the trustees had given this right of renewal to Sir William Eliott for a period which might outlast the subsistence of the trust; but that is not so. The trust must subsist so long as Sir William Eliott lives, and the powers of the trustees with reference to this matter are, at any time during the subsistence of the trust, to permit the institute or heir of entail entitled to succeed to the estate of Wells to possess the mansionhouse, free of rent, for such space as the trustees might think proper. I see nothing beyond their powers, or in excess of their duty, in making an arrangement of this kind.

"It is suggested that, even if that is a sufficient answer as regards the house, they had at all events no right to let the shootings in this way. All I can say about that is that the trust-deed and the Act of Parliament are silent about the shootings. There is no limitation on the power of the trustees with regard to the shootings, and therefore I do not think they can be heard to say that they

were acting beyond their powers in letting the shootings to the institute of entail without exacting a rent. The shootings are after all a mere accessory of the enjoy ment of the mansion-house, and the express powers of the trustees, although they do not actually include the shootings, are exceedingly wide, because they extend not only to the offices and orchards, woods and policy, but even, if they think fit, to 250 acres of ground, all of which they are entitled to allow the heir of entail to occupy rent free. They have not, as I understand. executed their power as regards the 250 acres of ground, but that, I think, affords some indication of the intention of the truster, and I think it would be fantastic to hold that the mere fact of their letting the shootings along with the house, rent free, is sufficient to warrant the Court now, at their instance, in reducing this lease. I shall therefore sustain the defenders' third plea-in-law, find that there are no relevant reasons averred on record for reducing the lease, and assoilzie, with expenses."

The pursuers reclaimed, and argued-On the construction of the "lease"-The narrative of the powers under which they acted showed that the trustees never intended to part with the control of the mansionhouse except from year to year. The fact that the lease contained a provision to the effect that the defender must give notice of his intention to remove did not imply that the trustees were not to have power to bring the lease to an end, for the provision in question was conceived in the trustees' favour. If that was not the true construction of the so-called lease, then the trustees had gone beyond their powers. They were only entitled to allow the defender to occupy the mansion-house so long as they thought fit, and it was ultra vires for them to put the exercise of their discretion out of their power. The pursuers also had no power to give the defender the shootings rent free. Further, the so-called lease was bad as a lease, for it contained no definite ish-Dunlop v. Steel Company of Scotland, November 27, 1879, 7 R. 283.

Argued for the defender — The Lord Ordinary was right in his decision, and in the reasons he assigned for it.

At advising

LORD PRESIDENT In considering the validity of the writ brought under reduction in this action it is necessary to ascer tain, first, what right it purports to confer. and second, whether it was in the power of the trustees to grant a deed of such import.

Now, the instrument in question is a lease; it professes to be a lease; it is so considered by the Lord Ordinary; and I shall so treat it. What, then, is the right conferred on the tenant by the trustees, so far as the vital matter of duration goes? It is unquestionably the right to possess the mansion-house of the estate, and what for shortness I shall call the adjuncts of the mansion-house, for his lifetime. It is true that he has the additional privilege of