Feb. 13, 1894.

that opinion is, that while the Sheriff Courts by their original constitution had unlimited jurisdiction in personal actions, the Legislature had thought fit to restrict that jurisdiction by providing that it should only exist concurrently with a right in either party to remove the case to the Court of Session for jury trial if the case be of the value of forty pounds.

If the question were open I should doubt whether this Court had the power in such cases to remit to the Sheriff. But it has been decided in a very authoritative way that this course may be taken. I agree that

the circumstances of this case are such as to render it more suitable for investigation before the local tribunal rather than the Court of Session because of the entirely exceptional character of the case, and because of its affinity to cases arising under the Act 31 and 32 Vict. cap. 96 in which the judge is final on the facts. Neither party desires that the case should be sent to a jury, and we cannot, I think, be wrong in taking the course which will make the decision on the facts final, at all events in the Court of Session.

LORD KINNEAR-I agree with your Lordship in the chair.

The Court remitted the case to the Sheriff for proof.

Counsel for the Pursuer-C. S. Dickson -Dewar. Agents-Cornillon, Craig, & Thomas, S.S.C.

Counsel for the Defenders - Graham Murray, Q.C. Maconochie. Agents Mackenzie, Innes, & Logan, W.S.

Thursday, February 15.

SECOND DIVISION.

[Lord Kincairney, Ordinary. MACKENZIE v. LUCAS & AIRD. Process--Interlocutor Ordering Proof-Reclaiming-Note within Six Days-Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 28-Act of Sederunt, 11th July 1828Act of Sederunt, 20th July 1853.

The Court of Session Act 1868, sec. 28, provides that any interlocutor by a Lord Ordinary ordering proof "shall be final unless within six days from its date the parties or either of them shall present a reclaiming-note against it to one of the Divisions of the Court."

Upon 30th January a Lord Ordinary "allowed parties a proof of their respective averments on record on a day to be afterwards fixed."

The Court rose for recess upon 3rd February, and met again upon Tuesday 13th February. On 12th February the pursuer boxed a reclaiming-note to the Second Division against the Lord Ordinary's interlocutor. Held that the reclaiming-note was incompetent.

The Act of Sederunt, 11th July 1828, for carrying out the provisions of the Judicature Act 1825 (6 Geo. IV. cap. 12), provides -"79. It is declared that where the twentyone days allowed by the statute for presenting a note reclaiming against an interlocutor of a Lord Ordinary in the Outer House expire during vacation or recess, the reclaiming-days continue open till the first box-day in the vacation; or if they expire during the recess, the reclaimingdays shall continue open till the box-day in the recess; or if they expire after the box-day in the recess, they shall continue open till the first sederunt-day after the recess."

The Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11, limits reclaimingdays to ten except for judgments on the merits and decrees in absence.

The Act of Sederunt, 20th July 1853, following upon the Court of Session Act 1850, provides "That where the ten days therein mentioned expire during vacation or during any recess of the Court, they shall continue open till the first box-day in the vacation or till the box-day in the recess; or if they expire after the box-day in the recess, they shall continue open till the first sederunt-day after the recess."

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 28, provides that a reclaiming-note against an interlocutor of the Lord Ordinary ordering proof must be presented within six days from the date of the interlocutor.

Alexander Mackenzie, labourer, Fortrose, sued Lucas & Aird, contractors, Fort William, for damages for personal injuries.

Upon 16th January 1894 the Lord Ordinary closed the record, and appointed issues for the trial of the cause to be adjusted on 23rd inst. Upon 30th January he pronounced this interlocutor — “Dispenses with the adjustment of issues: Allows the parties a proof of their respective averments on record on a day to be afterwards fixed." The Court rose for recess upon Saturday 3rd and sat again upon Tuesday 13th February.

Upon 12th February the pursuer boxed a reclaiming-note against the interlocutor of 30th January.

The defenders objected to the competency of the reclaiming note, and argued-This note had not been timeously presented within six days. It was true that the six days expired in vacation, but the clerk's office was open during a part of that time. The note should have been presented to the clerk on the first day the office was open, and that would have been compliance with the provisions of the statute. The note could have been boxed on the earliest opportunity, as lodging the principal note with the clerk was the most important part of duty in "presenting" the note-Bain, &c. v. Allan, &c., February 29, 1884, 11 R. 650. The relaxations which had been granted as to lodging reclaiming - notes on twenty-one days' and ten days' interlocutors had been given by special Acts of Sederunt-11th July 1828 and 20th July 1853-and could not

be extended to reclaiming-notes of this kind, which must be lodged within six days of the interlocutor granting proof.

The pursuer argued-The statutory words "present a reclaiming-note" were very indefinite. The intention of the Act was fulfilled if one of the two things necessary in presenting a reclaiming-note were done timeously; these were lodging the principal note in the clerk's hands and boxing copies of the note to the Court. The six days expired in vacation, and on the first day it was possible to do so, viz., February 12, the note was boxed--Henderson v. Henderson, October 17, 1888, 16 R. 5; Allan's Trustee v. Allan & Son, October 23, 1891, 19 R. 15. These cases held that where it was impossible to do what was ordered by the statute a reasonable compliance was all that could be asked.

At advising

LORD RUTHERFURD CLARK-I think this reclaiming-note is incompetent, and that the Act of Sederunt does not apply. The statute says that a reclaiming-note of this kind ought to be presented within six days, and I think it must be presented within that time.

LORD TRAYNER-I agree. I think that the provisions of the statute are imperative. I think that the boxing of the prints on the first day they could be boxed is not enough; there must be presentation of the reclaiming-note to the Court within six days.

must

LORD YOUNG-It seems to me not at all doubtful that in deciding this question, exactly the same considerations weigh with the Court which had weight when the Court passed the Acts of Sederunt which regulated the way in which reclaiming-notes against judgments which might be reclaimed against in twenty-one days, or in ten days, should be lodged in vacation. I pointed out during the discussion that these Acts of Sederunt were founded upon considerations of good sense and expediency as to what should be done in such cases, and I thought that the same considerations were applicable to this case. No Act of Sederunt, moreover, regulating reclaiming-notes which must be presented within six days has been passed, and the only question therefore is whether a Division of the Court may not act upon the same considerations of good sense and expediency which actuated the Court in passing these Acts of Sederunt.

I think it would be standing out for matters of form for the Court not to act upon such considerations, and the result is that we refuse this reclaiming-note.

The LORD JUSTICE-CLERK was absent. The Court dismissed the reclaiming-note as incompetent.

Counsel for the Reclaimer - Salvesen Dewar. Agent-James Ross Smith, S.S.C.

Counsel for the Respondents - Dundas. Agents-Dundas & Wilson, C.S.

Friday, February 16.

SECOND DIVISION. CLARK'S TRUSTEES v. CLARK. Succession-Trust-Liferent with Power of Testing-Exercise of Power.

A truster directed his trustees to hold and apply, pay, and convey the residue of his estate for behoof of all his children and their respective issue equally, one-half of the shares falling to his sons to be paid to them on attaining the age of twenty-five, after his death, and the other half of the shares falling to sons to be held and applied, paid, and conveyed to and for their behoof in liferent, for their respective alimentary uses only, and to and for behoof of their respective children per stirpes in fee. He further provided “that in the event of any of my sons dying without leaving issue, it shall be competent to him to test upon the share of residue that may have been liferented by him, and that in favour of such person or persons, or for such uses and purposes, and in such way and manner, all as he may think fit."

A son, who survived the truster, and died aged thirty without issue, by his will, bequeathed certain legacies, and provided "the residue and remainder of my real and personal estate I give, devise, and bequeath unto my brothers equally," whom he appointed his executors.

Held that the will was a valid exercise of the power of testing conferred by the trust-disposition and settlement of his father.

Hyslop v. Maxwell's Trustees, Febru ary Ï1, 1834, 12 S. 413, followed. James Clark, thread manufacturer and merchant in Paisley, died on 3rd August 1881, leaving a trust-disposition and settle. ment dated 17th August 1880, and recorded 28th July 1881. He was survived by six sons and two daughters. By his trustdisposition and settlement he disponed and made over his whole means and estate to certain trustees, and directed them to pay an annuity to his wife and sundry bequests

"and (lastly) with regard to the residue of my means and estate, I direct my trus tees to hold and apply, pay and convey, the same to and for behoof of all my children equally and their respective issue as fol lows, viz., one-half of the shares falling to sons to be paid and conveyed on my death to such of them as shall then be twentyfive years of age, and to such of them as shall not then have attained that age, on their respectively attaining the age of twenty-five years; and the other half of the shares falling to sons and the whole of the shares falling to daughters to be held and applied, paid, and conveyed to and for their behoof in liferent, for their respective alimentary uses only, and to and for behoof of their respective children per stirpes in fee:... Declaring, with regard to the shares

Clark's Trs. v. Clark, Feb. 16, 1894.

of residue before directed to be held for behoof of my sons and daughters respectively in liferent, and their respective issue in fee, that in the event of any of my said children dying without leaving issue, or in the event of any of them dying leaving issue, but of such issue not surviving to take, in terms of the destination hereinbefore contained, then the share of the residue (whether original or as augmented by accretion) which may have been liferented by such child, shall devolve upon his or her surviving brothers and sisters, along with the issue of any brother or sister who may have deceased leaving issue, such issue always taking the share which their parent would have taken on survivance, but subject always such aceretion, in as far as in favour of sons, to the extent of one-half thereof, and in as far as in favour of daughters to the whole extent thereof to the same liferent, and also to the same destination, declarations, and conditions in all respects as are herein contained with regard to the original shares of residue provided to them respectively in liferent, and their respective issue in fee." He also provided and declared "that in the event of any of my sons or daughters dying without leaving issue, or of any of them dying leaving issue, but of such issue not surviving to take in terms of the destination herein before contained, it shall be competent to him or her to test upon the share of residue (whether original or as augmented by accretion) that may have been liferented by him or her, and that in favour of such person or persons, or for such uses and purposes, and in such way and manner, all as he or she may think proper.'

One of the truster's sons James Alexander Clark died on 8th January 1893, aged thirty and unmarried. He was survived by two brothers and one sister, and by the children of two brothers and one sister who predeceased him. He left a holograph will dated 13th October 1892 and recorded 16th February 1893, whereby he provided thus-"And the residue and remainder of my real and personal estate I give, devise, and bequeath unto my brothers Kenneth Mackenzie Clark and Norman Clark equally, and I hereby appoint Kenneth Mackenzie Clark and Norman Clark, or the survivor of them, executors of this my will."

James Alexander Clark never received any portion of his father's estate into his hands, although he drew the interest of the share liferented by him, and it was not admitted that he knew the terms of his father's will. At the time of his death h was entitled to one-eighth part of the residue, one-half in fee and one-half in liferent. Questions having arisen regarding the effect of the holograph will as a valid exercise of the power of testing contained in James Clark's trust-disposition and settlement, a special case was presented by (1) the trustee under James Clark's settlement, and (2) the executors under James Alexander Clark's holograph will, for the opinion of the Court on the follow

ing Questions--“(1) Are the first parties entitled to retain and administer, as trustees of the said James Clark, the portion of the residue of the estate of the said James Clark liferented by the said James Alexander Clark? or (2) Are the first parties bound to pay to the second parties the portion of the residue of the estate of the said James Clark liferented by the said James Alexander Clark?"

The first parties argued-The holograph will was not a proper exercise of the power of testing. James Alexander Clark could only test upon what was actually in his estate, but the share liferented by him never was in his father's settlement. The terms under which it was given were too indefinite and more general than had ever been recognised before -Smith v. Milne, June 6, 1826, 4 S. 679; Dalgleish, June 29, 1893, 20 R. 904; Glendonwyn v. Gordon, &c., May 19, 1873, 11 Macph. (H.L.) 33; Whyte v. Murray, November 16, 1888, 16 R. 95; Bowie's Trustees v. Paterson, July, 16, 1889, 16 R. 983. This case was not ruled by Hyslop v. Maxwell's Trustees, February 11, 1834, 12 R. 413, because in Hyslop's case there was no destination to children. It fell rather under the rule laid down in Mackenzie v. Gillanders, June 19, 1874, 1 R. 1050.

The second parties argued-The case of Hyslop v. Maxwell's Trustees had never been called in question, and was identical with the present in all material points. It was not necessary in exercising a power of testing which the testator possessed, to make mention of the deed which conferred the power-Grierson v. Miller, July 3, 1852, 14 D. 939. In a general settlement such as this, or in any deed, according to the law of Scotland, it must be presumed that a testator has exercised all the powers which he actually possessed, unless it be shown that his intention was otherwise-Cameron v. Mackie, August 29, 1833, 7 W. & S. 106. At advising

LORD YOUNG-The question which is raised in this case is, whether a will, although it in terms refers only to property of which the testator had the fee, may be read as including also other property of which he had the liferent with an absolute power of disposal of fee. That question is not now raised for the first time, for it was raised and determined in the affirmative in the case of Hyslop v. Maxwell's Trustees. The maker of the will which is here in question had, I understand, a large fortune of his own, part of it consisting of a share of his deceased father's estate, which he had permitted to remain in the hands of his father's trustees. With respect to another part of that estate, it was not his own, but he had the liferent of it, together with an absolute power to dispose of the capital. It is not disputed that the will which he left is applicable to that part of his father's estate of which he had the fee, although it remained in the hands of his father's trustees. But the contention is, that it is not applicable to the fee of the other part, of which he had the liferent with an absolute

power of disposal. I am unable to agree in that view. I think the case is indistinguishable from Hyslop v. Maxwell's Trustees, only that it appears to me to be a stronger and clearer case for the application of the rule there established. The circumstances here are altogether favourable to the inference of an intention on the part of the testator to dispose of the fee of the property of which he had the liferent with an absolute power of disposal, for it would be making a distinction not likely to occur to an ordinary testator to suppose that he understood that he was disposing of that part of his father's estate of which he had the fee, but not of that other part of which he had the liferent, but with an absolute power of disposing of the fee of it. That circumstance makes this case an exceedingly clear case for the application of the rule. We must of course be satisfied that the rule is in accordance with the true meaning of the will in the particular case, and if there is anything to hinder us from giving effect to the rule, of course it will not hold, but here I can find nothing, and therefore I apply the rule established in Hyslop v. Maxwell's Trustees, and give that effect to the will here which makes it carry the property of which the testator had the liferent with an absolute power of disposal. I am of opinion accordingly that we should answer the first question in the negative and the second in the affirmative.

I

LORD RUTHERFURD CLARK I am of opinion that we must follow the rule of the case of Hyslop v. Maxwell's Trustees. I cannot distinguish the present from it. have examined the case of Mackenzie v. Gillanders. I am satisfied that it was decided on special grounds, viz. (1) because of the form of the will, and (2) because of the peculiarity of the power.

LORD TRAYNER-I come to the same conclusion. I think this case cannot be distinguished in any material respect from the case of Hyslop v. Maxwell, the decision in which has never been overruled, but has, on the contrary, been referred to with approval in subsequent cases. I do not regard the decision in the case of Mackenzie as derogating from or competing with the authority of Hyslop v. Maxwell. Mackenzie's case was very special in its circumstances, and was decided in respect of specialties.

The LORD JUSTICE-CLERK was absent.

The Court answered the first question in the negative, and the second in the affirmative.

Counsel for the First Party-C. S. Dickson-Moffat. Agents-Ronald & Ritchie, S.S.C.

Counsel for the Second Party-Salvesen -M'Lure. Agents-Drummond & Reid, S.S.C.

Friday, February 16.

FIRST DIVISION.

[Lord Wellwood, Ordinary. LORD ADVOCATE v. MORAY. Superior and Vassal-Entry-CasualtyComposition - Relief - Implied EntryConveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 4.

A, the heir in possession under a new entail of the lands of Abercairney, was impliedly entered with the superior in 1874 by the operation of the Convey ancing Act of that year. At this date A was not the heir alioqui successurus to the entailed lands, but no casualty was demanded from him until 1876, by which time he had become the heir alioqui successurus owing to the death of his elder brother. The superior accepted relief duties from A. After A's death B succeeded in terms of the destination in the deed of entail, and having taken infeftment was impliedly entered with the superior.

In an action by the superior against B for payment of a composition, held that a new investiture was created by A's implied entry, and that a casualty of composition might have been exacted from him by the superior; that the superior's failure to exact a composition from A could not affect B; and that B, as the heir of the existing investiture, was liable only in reliefduty.

William Moray Stirling of Abercairney was heir of entail of the lands of Abercairney and others, under a deed of entail dated in 1769. In the year 1849 he disentailed the said lands, and executed a new deed of entail to and in favour of himself and the heirs whatsoever of his body, whom failing Mrs Christian Moray or Home Drummond, his sister, whom failing to Charles Home Drummond, her second son, and the heirs whatsoever of his body, whom failing certain other heirs. The deed contained a provision that in case any of the heirs of entail succeeding under the deed should succeed to the estate of Blair Drummond, and should, at the time of his death, have (in addition to an eldest son, or descendant of an eldest son) a second or other younger son, or descendant of such, then the estate of Abercairney should, upon the death of such heir, descend to and devolve upon his or her second or younger sons successively in their order, and the heirs whatsoever of their bodies respectively. Infeftment followed in favour of William Moray Stirling, on 27th September 1849.

William Moray Stirling died on 9th November 1850, and Mrs Christian Moray or Home Drummond was thereafter duly served as his nearest and lawful heir of tailzie and provision. Sasine, dated 14th October 1851, followed on the decree of service in her favour, but no entry was

v. Moray

taken by her with the Crown, which was the superior.

By disposition dated 30th October 1851 Mrs Home Drummond disponed the entailed lands to her second son, the said Charles Home Drummond, under reservation of her liferent, and he was duly infeft conform to instrument of sasine recorded in the General Register of Sasines 7th August 1854. In 1868 Charles Home Drummond, who assumed the name of Charles Stirling Home Drummond Moray, was served nearest and lawful heir of tailzie and provision in special to his uncle, the entailer, and the decree of service was recorded in the register of sasines on 16th August 1868.

When the Conveyancing (Scotland) Act came into force, Charles Drummond Moray was by operation of the statute entered with the Crown as its vassal, but no casualty was then paid in respect of the said entry. At that time Charles Drummond Moray's elder brother was alive. He died on 3rd June 1876, and Charles Drummond Moray then became heir of the former investiture. The Crown did not settle with Charles Drummond Moray for several years thereafter, but finally accepted relief-duties from him upon the footing that being the heir alioqui successurus he would have been entitled to an entry as such. The receipts granted by the Crown contained no reservation.

Charles Drummond Moray died in September 1891, and was succeeded in the said lands by his second son William Drummond Moray, who was infeft, and thus impliedly entered with the Crown. At the date of his succession and entry his elder brother was alive, and William Drummond Moray accordingly did not possess the character of heir alioqui successurus.

In May 1893 the Lord Advocate, as representing the Crown and the Commissioners of Woods and Forests, brought the present action against William Drummond Moray for declarator that in consequence of the death of Charles Drummond Moray, who was the vassal last vest and seised in the lands of Abercairney, a casualty of composition had become due to the Crown, as superior at the date of the defender's infeftment, and for payment of such sum as should be ascertained to be the amount of said casualty.

The grounds upon which the claim of the Crown was made and resisted, appear from the arguments and the opinion of Lord Kinnear.

On 8th November the Lord Ordinary (WELLWOOD) pronounced this interlocutor-"Finds that in respect of his implied entry with the Crown in the lands named in the summons, or such of them as are held by the Crown, the defender is liable in payment of a causalty of composition; therefore to that extent repels the defences, but in respect that it is not admitted by the defender that the whole of the lands named in the summons are held of the Crown, continues the cause in order that it may be ascertained whether all, and if not which, of the said lands are so held, and VOL. XXXI,

that the amount of the composition may be ascertained and fixed, &c.

"Opinion. This case raises the question whether an implied entry under the Conveyancing Act of 1874, followed by acceptance without reservation by the superior of relief duty from the heir of entail in possession under a new entail, has the effect of enfranchising the investiture created by the deed of entail, so as to preclude the superior from thereafter demanding composition, when the succession opens to one who is not alioqui successurus.

[His Lordship then narrated the circumstances in which the action was brought.] "I am of opinion that the Crown is entitled to a casualty of composition. Under the law as it stood prior to the passing of the Act of 1874, if a vassal, purchaser, or assignee applied for a charter of confirmation, and tendered a year's rent, the superior was bound to grant without reservation or qualification a charter in favour of whatever persons the vassal, purchasers, or assignee might please to name, and to embody in the charter, if required, the fetters of a strict entail; with the result that the whole persons named in the charter, in whatever degree of relationship they stood to the vassal, purchaser, or assignee, or to each other, were entitled as heirs of the investiture to obtain an entry on payment of the casualty of relief. By granting such a charter the superior was held to have enfranchised the investiture.

"Again, the superior was bound, when applied to for a charter of confirmation of a deed of entail which changed the destination in the former investiture, to grant such a charter on payment of relief duty only, if the person first called was also the heir of the former investiture; but he was entitled to insert in the charter a reservation of his right to claim composition when the succession should open to one who was not heir alioqui successurus.

"Such being the old law, the Conveyancing Act of 1874, which abolishes charters and writs by progress, provides (section 4, sub-section 2)-Every proprietor who is at the commencement of this Act or thereafter shall be duly infeft in the lands shall be deemed and held to be as at the date of the registration of such infeftment in the appropriate register of sasines, duly entered with the nearest superior, whose estate of superiority in such lands would, according to the law existing prior to the commencement of this Act, have been not defeasible at the will of the proprietor so infeft, to the same effect as if such superior had granted a writ of confirmation according to the existing law and practice.' If the statute had stopped there the superior's rights would have been seriously affected in various ways. For instance, formerly if the superior granted a charter of confirmation he was held to have discharged all claims for past feu-duties and casualties, and therefore it became necessary to provide, as is done by section 4, sub-sections 3 and 4, that the superior's rights in that respect should not be affected by the implied entry.

NO. XXVIII.