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my Lords, such is the argument which arises on the Hyndford case. I have looked into the papers in the Hyndford case, and they do not go to negative that; for those papers give rise to the impression that that was to endure for a longer period of time than by possibility this could; and as I have pointed out that to the attention of Mr Attorney-General and his learned colleagues at the Bar, I do not think fit further to enter into it, except to shew that was not a deed for 25 years, except in one event in the event of one of two alternatives happening ; but, nevertheless, that deed was supported, if I am to take the opinion of Lord President Campbell, who gives the account of the deed. He says it may be supported, so far as it was temporary, for temporary purposes—the best way to put it for the appel. lant's argument; and what possibly may reconcile the books on the subject is, that it was supported as far as regards the temporary part, and set aside only as regards the perpetuity. Well, it is not contended the perpetuity is to be supported, nor is it a necessary contention for that to support the judgment of the Court below. I do not mean to say that there may not be an extremely good ground for setting aside an accumulation which is to go on for a perpetuity, and I do not consider that I am bound to say how long or how short a period money or land may accumulate in Scotland. I do not say 30 years is too short a time-I do not say 130 is too long. We are not called on to decide that at the present time; and the difficulty of drawing the line so much felt by the Court, as well as by the counsel at the Bar in the Courts below, in all those cases to which I referred counsel, and some of which I argued—most of them respecting cases from Turner and Turner downwards, down to the Roxburgh case, which finally fixed the period on somewhat of an arbitrary ground, not perhaps well adapted to the Scotch law, still acceded to by the Scotch lawyers, although at first they thought it was an importation of English law, into the Scotch law of taillies. I must say, adverting to the difficulty we all felt, both at the Bar and on the Bench, for the want of a definite rule, inasmuch as it was difficult to say why 22 years would not be good if 21 were good_inasmuch as some said there was a case of 50 years, under special circumstances, while the cases of 77 years and 99 years were set aside as perpetuities, and also those of still longer periods, were holden to be perpetuities and alienations, and not a due administration of the estate. It was put on all these grounds; and, adverting to the difficulties under which the variety of decisions have placed the question, and the want of a settled rule or a settled principle in the law, I must say, recollecting the difficulties we were all exposed to on that occasion, I cannot help most heartily wishing, and earnestly hoping that some member of this House, or some member of the other House of Parliament, would take steps for putting the law (I mean Scotch law), for putting the law on a more definite and intelligible and useful basis in Scotland, as it is in England, since Lord Loughborough's act passed in the year 1799. With these observations I shall conclude my argument in this case. I have thought fit to state the grounds of my advice to your Lordships, that you should affirm the decision of the Court below; and I have thought fit to state the grounds of that affirmance, rather on account of the importance of the question to the parties, than any difficulty I have considered as arising with a decision of it. I had no doubt that I should bave been prepared to give the same opinion to your Lordships after bearing the appellants' counsel; but as they complained that they had been dismissed rather hastily in the Court below-and I think one or two of the passages do go to shew that it had been hastily taken up, I thought it but justice the argument should be gone through, and that the learned counsel for the appellant (whose case is a very hard one), should have the opportunity of replying ; because in a reply, oftentimes new lights strike the party who have the labouring points to establish ; and it was upon that ground that I thought it right to ask of your Lord. ships to go through with it. I at first entertained no doubt at all that the principle of the decision come to in the Court below was right.
Mr Attorney-General. I was about to mention the subject of costs. I apprehend this is a case in which your Lordships will think the trust-property should bear them.
Lurd Chancellor. ---I shall order costs on both sides to be paid
out of the estate. I never saw a case so strong. I should think it a sbameful thing if this appellant had not the opportunity of having this thoroughly discussed-no reason to spare the estate. I should direct reasonable and ordinary costs. If I find the expense of special retainers has been incurred in bringing up counsel to argue a case as plain as two and two make four, I take leave to mention, I shall protect, as far as I can, the estate from such a squandering of the property.
Decree affirmed, with reasonable costs of both parties to be paid out of the estate.
Appellant's Authorities.-(1.) M`Neil v. M'Neil's Trustees, 27th January 1826; S. & D. Kerr v. Kerr, 230 January 1747; Mor. 12.987: Earl of Wemyss v. Murray, 17th November 1815. Mordaunt v. Innes, 9th March 1819, affirmed 5th July 1822. Kerr v. Duke of Roxburgh, 15th and 17th December 1813. M‘Culloch v. M Culloch of Barholm, 28th November 1752. (2.) Black. Com., B. 1, c. 1, p. 10; Heneccii Antiq. L. II. T. 10; His. Law Tracts, p. 184; Bell's Com. V. I. p. 38. M'Culloch v. M‘Culloch, ut supra. Earl of Strathmore v. Strathmore's Trustees, 13th December 1822. Lord Glammis v. Do. 21st February 1823; Sbaw's Reports. Law of England, Taltarum Case, 12 Edward IV. Potts v. Browli, Croc. Jac. 590; 2 Roll's Rep. 216. Howard v. Duke of Norfolk. Sir John Lade v. Halford. Proctor v. Bishop of Bath and Wells, Vesey, Jun. Vol. XI. p. 116; Crooks de Vaude, 9 Ves. 197. 39-40, Geo. III. c. 98. Thelluson Case, Ves. Jun. IV. p. 246; p. 239. Carruthers v. Irvine, 230 January 1717; Mor. 15,195. Malcolm v. Henderson, 17th November 1807. Stirling v. Walker, 20th February 1821. Wemyss v. Duke of Queensberry's Executors, 25th May 1813, 12th June 1822. (5.) Maxwell v. Fairley, 7th June 1629. Clelland v. Clelland, 5th December 1672. Faichney v. Faichney, 9th July 1766 ; Mor. 3303-5, 3316. Crawford v. Coutts, 14th March 1806. Mudie 2. Moir, 1st March 1814. (6.) Hill v. Hood's Trustees, 14th December 1824, affirmed 14th April 1826. Crichton v. Crichton's Trustees, 12th May 1826.
Respondents' Authorities.-(1.) 39-40 Geo. III. c. 98. (2.) Ersk. III. 8, 98. Rowand, 24 November 1775. Duke of Roxburgh, 30th December 1816, affirmed 25th May 1820; Bligh's Reps. II. p. 619. Crawfordland Case, Bligh, II. p. 655. Batley, 20 February 1815. Moir, March 1820, affirmed Ist March 1823. Thelluson, Ves. IV. p. 226, and Vol. II. p. 112. Hargraves, Jurisconsult Exercitations, III. p. 138.
First Division.-Lord Moncreiff, Ordinary.Vizard & Co., Appellant's Solicitors.--Spottiswoode & Robertson, Respondents' Solicitors.
25th March 1831. No. 334._LADY MARY Montgomery & Sir C. Lamb, her
Husband, Appellants, v. MessRS RUNDELL, BRIDGE & RunDELL, & OTHERS, Creditors of the late ARCHIBALD LORD MONTGOMERY-et é Contra. Obligation, Gratuitous-Interest-Circumslunces in which, held,
affirming the judgment of the Court of Session, that an execulrir qua relict, having come under a gratuitous obligation 10 pay out of the surplus rents of her own estale the debts of her deceased husband, according to the calculations contained in a minute and statement drawn up by her advisers, from which it appeared that the debts might be extinguished thus in five years-Was bound by the said obligation lo appropriate her surplus rents to the payment of these debts until they were extinguished, wilhout regard to the calculations in the minute and statement on which the arrangement had proceeded-Also, held, that the gratuitous obligation to make full payment of these debts extended, by implication, to the payment of the interest on these debts from the date of the obligation—Interest not exigible on English debls by open account.
The late Lord Montgomery was married in 1806 to Lady Mary Montgomery, who possessed a large personal property and a landed estate, estimated at £20,000 per annum. Lord Montgomery died in 1814,
leaving debts, partly upon bills, bonds, &c., and partly on open accounts, &c., amounting, it was supposed, to £100,000, and property and effects valued at L 50,000, to meet these debts. Lady Montgomery, being anxi. ous, from an honourable feeling, to discharge these debts, proposed immediately to appropriate part of her own property for that purpose, restricting her own income to £5000 a-year. In pursuance of this intention, a minute and statement was drawn up by her Ladyship's advisers on 16th July 1814, shewing, on the one hand, the estimated amount of the debts, and, on the other hand, the property intended to be applied by her Ladyship in liquidation of them, and containing this clause : .“ As Lady Montgomery has resolved to restrict her expenditure to £5000 a-year, and to allow the remainder of the freerents of her estate to be applied towards the extinction of the balance of the debt, it is calculated that the debts may, in this way, be all discharged in the course of five years, including the expenses necessary for carrying the arrangement into execution.”
After other details relative to the sale, and appropriation to the same purpose, of certain fee-simple
lands of Lady Montgomery to Lord Eglinton, this • statement follows:
“ Lady Montgomery, having fully considered the particulars before stated, approves of, and agrees to the arrangement suggested, and has accordingly executed a commission in favour of Lord Alloway, Mr G. Russel, and Mr Sam. Anderson, for carrying the same into execution, as well as for the general management of her affairs.”
On the same day, her Ladyship executed a commission in favour of these gentlemen, with the most extensive powers to carry on the trnst, and containing the following clauses :
.“ And further, considering that there are debts in England and Scotland, contracted during the marriage between Archibald Lord Montgomery, my late husband, and me, which, according to the claims that have been made, amount to about £100,000 Sterling, to answer which, the estate, whether real or personal, of the said Archibald Lord Montgomery is noways adequate, and that I have resolved to make up the deficiency, and pay off and discharge all these debts from the sale of the fee-simple lands and the savings of the rents of my entailed estates, as aftermentioned; and, in the meantime, I am in the course of making up a title, by confirmation, to the personal estate of the said Archibald Lord Montgomery, as executrix qua relict to him, therefore I do hereby grant full power, warrant and commission to the said David Cathcart (Lord Alloway), George Russel, and Samuel Anderson, or any of them, to sell and dispose of, either by public roup or private bargain, as they shall see proper, the following lands and others, belonging to me, viz. (Here follows a description of the lands); and I bind and oblige myself, my heirs and successors, to ratify and confirm such sales so to be made by my said commissioners or commissioner, and to grant dispositions and conveyances to the purchaser, containing all necessary and usual clauses, and binding myself and my foresaids in absolute warrandice; as also, with power to my said commissioners or commissioner to sell and dispone of the personal estate of the said Archibald Lord Montgomery, to wbich I am in the course of making up a title, as aforesaid, except such part thereof as I may have occasion to retain, and to apply the prices and produce of the foresaid whole subjects, heritable and moveable, together with the rents and profits arising from my other lands and estate, entailed and unentailed, with the exception of what may be required for defray.. ing the expenses of my own establishment, which at present I estimate may amount to £5000 a-year, towards the gradual payment and extinction of the foresaid debts,-all as mentioned and contained, so far as the circumstances are at present known, in
a statement and minute subscribed by me, of this date, and bearing reference bereto, &c. And, lastly, I hereby declare that this commission shall endure and continue until the foresaid purposes are accomplished, so far as concerns the payment and extinction of the foresaid debts of the said Archibald Lord Montgomery, and, quoad ulira, until the same is recalled by a writing under my hand.”
In October 1814, Lady Montgomery executed, at the desire of her husband's creditors, a relative obligation and assignation in favour of her said Commissioners, in these terms :
« I, the Right Honourable Mary Lady Montgomery, considering that, by a statement and minute regarding the debts due hy my late husband, Archibald Lord Montgomery, subscribed by me on 16th July last, I resolved to pay and discharge these debts, which were estimated at £100,000 Sterling, in the way and manner therein mentioned, and particularly by a sale of certain lands held in fee-simple by me, and by restricting my expenditure to £5000 Sterling per annum, and allowing the remainder of the rents of my whole land and estates to be applied, as they should be received, towards the extinction of the said debts; and, for accomplishing, inter alia, this object, I granted a commission in favour of the Honourable David Cathcart, &c. &c. Therefore, I do hereby bind and oblige myself, my heirs, executors and successors, to implement and fulfil the foresaid statement and minute, by making payment and satisfaction of the debts therein and before referred to, according to the foresaid estimated amount, and in the way and manner specified in the said state and minute, or as nearly so as circumstances will admit; and for this purpose, I do hereby assign, convey and make over to, and in favour of the said David Cathcart-(here the lands, &c. are described): Providing and declaring that nothing herein contained shall subject me, personally, in payment of the foresaid debts, or in any other way impose a burden upon me regarding the same, farther than to the extent of the funds and effects hereby conveyed; and providing, further, that my said Commissioners shall make payment to me yearly, and each year, and by such payments as I may find necessary, the sum of £5000 Sterling, free of all deductions whatever, &c. ; and that so soon as the foresaid debts (an account and list of which is to be taken and made up by my said Commissioners, so soon as the same can be properly investigated,) are fully paid and discharged, my said Commissioners shall be bound to denude of these presents, and hold count and reckoning with me and my foresaids," &c.
The Commissioners accepted, and continued to manage the property for several years. In 1815 and subsequent years, owing to the depreciation of land, only a small dividend was realized for payment of the debts; and in consequence, in 1817, a proposal was made, on Lady Montgomery's behalf, to the creditors, upon a statement that, owing to the fall in the value of land, “ there was no calculating when the creditors might get payment," but that Lady Montgomery was willing to sell property valued at £30,000, which had not been intended to be appropriated by her to payment of the debts; and “ thus, if the creditors will accept, they will be very nearly paid in full, and they will not have to wait till the rents can make up the deficiency.' This proposal was rejected by the creditors, who determined to abide by what they considered to be the terms of the original arrangements, rendering it imperative on Lady Montgomery to restrict her income to £5000 a year till the full liquidation of the debts. A difference then arising between Lady Montgomery and the Commissioners as to the effect of those ar
rangements, the latter raised the present action of | multiplepoinding in November 1819, for the purpose of obtaining the opinion of the Court of Session on the construction of the above deeds.
It was contended on the part of Lady Montgomery, that her intention, as expressed in the deeds above-mentioned, extended only to the appropriation of the surplus rents of her estates for a period of five years; and that although, at the expiration of that period, these surplus rents proved insufficient to liquidate these debts, Lady Montgomery's obligation was at an end. On the other hand, it was maintained by the creditors, that Lady Montgomery's obligation was not restricted to a period of five years, but that, by the terms of the deeds, the Commissioners were bound to apply the surplus rents in liquidation of the debts till they were satisfied. It was further contended by Lady Montgomery, that the deed of commission and relative assignation, executed by her in favour of the Commissioners, bore express reference to, and were founded on the calculations contained in the state and minute framed by her advisers, which contemplated the extinction of the debts in five years; and that the obligation being purely gratuitous, was to be favourably interpreted for the granter. Answered for the creditors-If Lady Montgomery had intended to restrict her obligation to a period of five years, she would have inserted in the commission a limitation to that effect; but the commission is expressly declared to continue so long as the object continues unanswered, namely, the extinction of the debts; neither is there any limitation in the assignation to these Commissioners of the period for which they were to hold the lands assigned, except the period of the extinction of the debts in toto. Lord Ordinary, Gillies (15th February 1822), pronounced an interlocutor, containing, inter alia, the following findings:
“ Finds, that Lady Montgomery having succeeded to nothing by the death of her husband, and representing his Lordship no otherwise than having been coufirmed his executrix qua relict, was not, in any respect liable for the payment of his debts, in so far as the same exceeded the amount of his funds: That the estimated amount of Lord Montgomery's debts, on the one hand, and the amount of the rent of her Ladyship's estate, on the other hand, formed the basis of the arrangement agreed to by the memorialist (Lady Montgomery); And finds, therefore, that if it appears from the minute (upon the information in which the arrangement was entered into,) that the memorial. ist at the time laboured under any material error as to any one, or both of these points, and was misinformed or mistaken, either as to the amount of Lord Montgomery's debts, or with respect to the amount and permanency of her own rental, the obligation undertaken by her must be limited and restricted accordingly : Finds, that in the minute it is assumed, as a ground for the proposed arrangement, that, setting aside the sum received by her Ladysbip, the free rent of the estate, together with the other funds allotted to the same purpose, would be sufficient in five years to discharge the debts: Finds it stated, that, owing to the depression in the value of landed property and its produce, the rents actually recovered during the five years immediately subsequent to the date of the minute and commissions, fall greatly short of the rents which were payable, or which the estate was calculated to yield, at the period when the arrangement was agreed to: Finds that, notwithstanding this change of circum. stances, the creditors insist that they are entitled to the free surplus rents, not for a period of five years, but for a period al. together indefinite, viz. until such time as those rents, together with the other funds before mentioned, shall be sufficient to pay Lord Montgomery's debts, to the extent of £100,000, as calcu
lated at the date of the minute, with interest from that period : Finds, that such a claim, on the part of the creditors, is inconsistent with what must be presumed to have been the understanding of parties at the period when the arrangement in ques. tion was made : Finds, that the obligation undertaken by Lady Montgomery will be sufficiently implemented by her Commissioners making payment, as she proposes that they should do, to the creditors, of the whole free rent which they received, or which, consistently with the rules of good management, they might have recovered from the estate, deducting the sum received by the memorialist, for the period of five years posterior to the commencement of their possession under the commissions, the Commissioners also accounting to the creditors for the price of the property which was sold to the late Lord Eglinton," &c.
This interlocutor having been adhered to by the First Division of the Court, the cause was appealed, and the House of Lords (11th March 1825), pronounced a judgment, finding, “ That under the commission, bearing date the 16th day of July 1814, and the deed of obligation and assignation, bearing date the 10th day of October 1814, the said Commissioners are bound to apply the rents of the estates mentioned therein, after making payment of the sum therein mentioned to Lady Montgomery, and of the other sums and expenses therein provided for, in discharge of the debts due from the late Lord Montgomery, until thereby, and with the other funds mentioned in the foregoing instruments, the same debts shall be paid and extinguished: It is therefore ordered and adjudged, that so much of the said interlocutors complained of in the said appeal, as is inconsistent with the above finding, be, and the same is hereby reversed : And it is further ordered, that the cause be remitted back to the Court of Session in Scotland, to do therein as shall be consistent with this judgment, and as shall be just."
When the cause returned to the Court of Session, it was maintained by the creditors of Lord Montgo. mery, both those by bonds and bills as well as upon open accounts, that they were entitled to the full principal of their debts and interest, from 16th July 1814, the date of Lady Montgomery's obligation, in terms of that obligation, and of the judgment on appeal. On the other hand, Lady Montgomery contended that her obligation did not extend to the payment of interest; that the debts which she undertook being those of a defunct, whose funds were deficient, the currency of interest was necessarily stopped upon these, as in other cases of death and bankruptcy. The Lord Ordinary, by an interlocutor, 25th February 1829, found, inter alia, " That the claimants are entitled to be ranked upon the fund in medio, for the interest due to them upon such debts as were constituted by bonds or bills; but that the claimants, who are all English creditors, are not entitled to interest upon the debts which were due to them by open account, which it is admitted do not bear interest by the law of England, &c.; and, in respect to a motion made by the claimants for expenses, finds it competent to award to them the expenses incurred by them in this Court, before, as well as since the appeal to the House of Lords; but finds that, in the circumstances of the case, they are not entitled to the expenses incurred by them in this Court, previous to the appeal: Finds Lady Montgomery and her husband, Sir Charles Lamb, liable to the claimants in the expenses incurred by them, from and since the 13th May 1825, being the date of the interlocutor applying the judgment of the House of Lords," &c.
Against this interlocutor, the parties having reclaimed, cases were ordered. On advising which, this interlocutor was pronounced by the Court:
“121h January 1830, Recal the whole of the findings respecting the expenses in the interlocutor of the Lord Ordinary complained of; and, quoad ultra, adhere to the said interlocutor : Find no expenses due to either party, and refuse the reclaiming note for Messrs Rundell, Bridge and Rundell, and others; and, under the above alteration, Refuse that for Lady Montgomery and Sir Charles Lamb.”
Lady Montgomery and Sir C. Lamb appealed against the above interlocutors, in so far as the creditors were thereby found entitled to be ranked on the fund in medio for interest, and in so far as the ap. pellants were not found entitled to expenses. The respondents entered a cross appeal, craving expenses from the commencement of the competition. The same reasons were urged as in the Court below.
Lord Chancellor.- My Lords, this is a case of very considerable importance. I did for a time entertain a doubt on one point raised by the learned counsel for the appellants; but, no longer feeling that doubt, I will state shortly the grounds on which I deem it my duty to advise your Lordships to affirm the judgment appealed from, on both points. The questions arise out of these facts :-Lady Montgomery, on the death of her husband, came forward, and placed her considerable estates under a course of management, restricting herself to a very moderate share, specially for the purpose of discharging a pious duty to the memory of her busband, by the payment of his large debts. The first question is,- Whether that deed shall be so construed as to impose upon her the obligation of paying the interest on certain debts allowed by the interlocutor, as well as the principal, which was disallowed by the first judgment of the Court of Session, and afterwards imposed upon Lady Montgomery? If the first case bad stood over for the decision of your Lordships, which was decided some years ago in this House, reversing the former judgment of the Court below, I should have felt much of that doubt and difficulty with which the Court below appears to have been pressed on behalf of Lady Montgomery ; but, after the decision of your Lordships, which does not appear to have done more than called upon the Court below to go into the view of that case taken in that judgment, but which does not appear to have materially altered the opinion of the very learned Judges whose decision was then re. versed, Lady Montgomery's obligations were of a nature which, when taken all together, appear to have raised a very fair doubt how far she bound herself beyond the strict terms of the arrangement made. Nevertheless, upon the whole, though I did entertain some doubts, at first, which are not very material to the consideration of the present question, as that question has been disposed of, I think, upon the whole, the balance of my opinion would have been in favour of the judgment which your Lordships were advised to pronounce by a late noble and learned friend of mine, whose loss to this House, as well as to Westminster Hall, there is very great reason to deplore I mean the late Lord Gifford; for the words of this deed are very strong, admitting an unlimited construction of the obligation. The minute says, the remainder of the rents of her Ladyship's estates, beyond a certain sum, are “to be applied towards the extinction of the balance of the debt. It is calculated that the debts may, in this way, be all discharged in the course of five years, includ. ing the expenses necessary for carrying the arrangment into execution." Then come a commission, deed of obligation, and assignation--all of wbich, being parts of the same transaction, are to be considered as parts of the same instrument--for the purpose of effecting the object contemplated ; and your Lordships find that the words are, after restricting herself to £5000 ayear, applying the remainder of her rents " towards the gradual payment and extinction of the foresaid debts-all as mentioned and contained, so far as the circumstances are at present known, in a statement and minute subscribed by me, of this date.” So that your Lordships see they make a calculation only so far forth as they knew the circumstances--so far forth as they can estimate the amount of the debts that is taken to be the amount; and to that amount the appellant, by her obligation, refers, and without, I think, by any means in soundness of construction, binding herself down to the very sum contained in that statement. The words are very material : “ So far as the
circumstances are at present known, in a statement and minute subscribed by me, of this date, and bearing reference hereto; providing always, that the same commissioners shall be bound to hold just count and reckoning to me for their respective transactions and intromissions, in virtue hereof; and, lastly, I hereby declare that this commission shall endure and continue until the foresaid powers are accomplished, so far as concerns the payment and extinction of the foresaid debts." The word “ foresaid," and the reference to the balance, and the words, « so far as the circumstances are at present known," are urged on the one side, to apply to the words, “ towards the extinction of the foresaid debts-an account and list of which is to be taken and made up by my said commissioners, so soon as the same can be properly investigated," (the account to be taken and made up by the commissioners so soon as the same—that is, certain expenses--can be investigated,)“ until those debts are fully paid and discharged." Upon these grounds, upon the whole, I lean to the opinion expressed in the year 1825, by this House; and that, I think, almost disposed of the present question; because, if interest is due upon these debts,-upon the specialty debts,-in England, and, by the custom of merchants, upon promissory-notes and bills of exchange, in Scotland, the question is only, Whether those debts come under the obligation herein contracted-within the scope of this instrument-or of these three instruments taken as one?-whether, under these particular instruments, specialties, which mercantile instruments, such as promissory-notes or bills of exchange are, do not come with their interest as well as the principal—the principal being disposed of in the former cause, the interest only remaining to be dealt with at the present time?-and the question being, Whether that interest does not come within the scope and meaning of the obligation into which this Lady, so honourably to herself, entered, by which she engaged to pay? On these short grounds, and on others which I mentioned to the learned counsel for the appellants, the last time this cause was under hearing, I am of opinion, that the Court below was right in giving the interest upon these particular kind of debts. My Lords, I was extremely moved, certainly, by the argument pressed upon the House by Mr Tinney, and which was an on. ginal view of the subject, taken here for the first time ;-for it must be admitted, that it had not been mentioned in the Court below; and I requested, upon that ground, that your Lordships would postpone the consideration till to-day, that the counsel might apply themselves to that point;-they have confined themselves strictly to that point, and have addressed their arguments to Mr Tinney's very ingenious argument—and they bave, in my opinion, displaced his position, and it ought not to operate to i11duce your Lordships to reverse the decision. Throughout the whole of the instruments are to be found the word " debts," or some word amounting to debts. Then, says Mr Tinney, the question is, Sball interest be given for those debts? This is an English question-strictly an English question ; for it is by the creditors residing in England that the criterion is to be taken, and is so laid down in Scotland. On all hands, it is admitted that the claim of interest, on simple contract debts wbich are not privileged, is to be rejected; because, though followed in Scotland, no interest is due in England, I wish it were otherwise in England; for, where there is a large sum,-£10,000, for instance, the interest, amounting to £500 a-year, will bear the expense of a long litigation ; and the parties, keeping their money in their own hands, will thus be enabled to support the cause; but that is the law. The question is, Whether, by the English law, this would be allowed ? and if so, it is allowed by the Scotch Court; and if not so allowed by the English law, it is not allowed by the Scotch Court. Now, Mr Tinney says, that the interest is not part of the debt, and cannot be proved under a commission of bankrupt; and for that he refers to the case of ex parte Marlar, in 1. Atkyns, 150, and Cameron v. Smith, in Barewell and Alderson, which is not the first case, in & Court of common law, proceeding on the principle sanctioned by Lord Hardwicke, in er parle Marlar; for that had been referred to in the Court of Common Pleas. In those cases, it is held only that you cannot add the interest to the principal, on a promissorynote, to make up the hundred, or hundred and fifty, or two advice to your Lordships to affirm the judgment. My Lords, I shall not advise your Lordships to say any thing against the interlocutor refusing the expenses. I shall certainly be disposed to advise your Lordships to affirm the whole of the interlocutors. It is a case, undoubtedly, of no little hardship. The conduct of this Lady was above all praise. She has clearly made herself liable to expenses, wbich she was little aware of at the time. It is very likely she did not intend to bind herself to the extent to which the House of Lords, reversing the first judgment, has held ber liable; and it is quite clear that the amount goes very far beyond her calculations, and that she must be placed in a situation of no little hardship. Upon these grounds, I should not advise your Lordships to allow any costs of this appeal.
First Division.- Lords Gillies and Meadowbank, Ordinaries, -Alexander Mundell, Appellants' Solicitor.--Moncreiff, Webster and Thomson, Respondents' Solicitors.
hundred pounds, necessary to constitute a petitioning creditor's debt, in suing out a commission of bankrupt, according as there may be one, two, or more creditors. Now, on what does that rest? It is, that interest is not a debt, in the strict legal acceptation of the word debt; but it is damages given for the detention of that debt; and as, at law, the debt must exist, and be a hundred pounds debt, or a hundred and fifty, or a two hundred, as the case may be, that must be a debt, and not damages, for detention of that which is strictly and exclusively called debt. But the bankrupt law is a creation of the statute; the whole arrangement of that law arises out of, and is bottomed in the express provisions of an Act of Parliament; and so nice is the distinction taken in construing that act, by the Courts of common law in England, on the subject of the petitioning creditor's debt, that the strongest equity a man can have against his debtor, shall not endure to the extent of including interest to inake up the amount of the petitioning creditor's debt. So, a man may be bound in equity to pay me a thousand pounds upon a bond ; and yet I have no power of taking out a commission, unless I have a legal remedy. This is sufficient of itself to constitute a broad distinction between the case relied on by Mr Tinney and that now at the Bar; for it is perfectly clear that the Court of Session, being a Court of Equity as well as a Court of Law, is bound as such to put the construction which equity requires on the word, debt, just as a Court of Equity, as. sisting to give a party equitable relief, here would give. I think your Lordships, therefore, are brought back to the fair construction of the word " debt;" for we find “ the debt" " the extinction of the debt"_" the liquidation and extinction of the debt"-is the object of this arrangement, according to the various words used in these instruments; and if you find that there is nothing to exclude from the scope of these expressions that which is undeniably due from Lord Montgomery to his creditors—that which constituted the claim of his creditors against the estate of Lord Montgomery—that which his creditors would have claimed against Lord' Montgomery's estate, if that estate had been under the administration of the Court below- The question is, Whether or not Lady Montgomery did not, by these instruments, (construed as your Lordships were disposed to construe them, as to the principal, and not construed by that particular argument, unsuccessfully contended to be the true meaning of the obligation she contracted)- or had it not in contemplation to put herself in the place of her deceased busband, with an arrangement to stride itself over a considerable period of time, uncertain, in some measure, as to its extent, but as long as those debts-the debts due from her late husband, the debtor, and for which he would have been liable if he had continued-existed ?- whether she did not mean to put herself into bis shoes, (if I may so express myself,) bound by his obligation ? Now, there cannot be the slightest doubt, that, in these cases, both as to the specialties and as to the privileged instrument, of a mercantile nature, he would have been liable to interest as well as principal, though not recovered under the technical meaning of the word, debt; but in an action on a debt due, it would have been recovered under a separate head; and, with that technical nicety which the law raises in this country, it would have come within the general description of his obligation, and would have been that which he was bound to pay,—the principal being strictly the debt, but the interest being equally within the scope of the obligation; because it is an obligation upon her to pay that interest until the principal shall be satisfied. My Lords, Mr Tinney's argument, it is admitted, is only to bills of exchange and promissory-notes—and I pressed upon him that distinction. I was not aware at the time that that distinction is also taken in Cameron v. Smith; for there the Court held that the argument did not apply to penalties on a bond. It, therefore, is clear, that all wbich remains is, to consider how far the argument holds, when it comes to be thoroughly sifted, as to promissory-notes or bills of exchange ; and for the reasons I have already stated, I think that it does not apply to this case. The argument which was so ably presented, certainly, for a time, made an impression upon my mind, and that of another noble Lord, who, at that time, felt as I did upon the subject; but on further consideration, I feel that I must dismiss it from this case, and that it is my duty now to offer my humble
25th March 1831. No. 335.- FLORA MACKAY, Appellant, v. J. G. DAVIDSON
AND R. S. Wilson, Trustees of MRS ELIZABETH CAMPBELL or MACKINNON, & ALEXANDER MACKINNON CAMPBELL, Re
spondents. Incapacity-Death-bed-Reduction- A person given up to more bid habits of intorication, having executed a seltlement to the prejudice of her heir-at-law, and having died seven days thereafter-Held, affirming the judgment of the Court of Session, that the deed was not reducible on the head of incapacity or death-bed.
On 6th December 1822, Mrs Mackinnon executed a trust-deed and settlement in favour of Hugh James Rollo, whereby sbe disponed, assigned, and conveyed to him, and his heirs in trust, the lands of Ormaig and Blairintibbert, and her whole moveable estate, for the following purposes :-1. The payment of her debts and expense of management. 2. The payment of a legacy of £500 to Mrs Alexander Stewart or Macleod—of £500 to the said H. J. Rollo-of £200 to Mr Rollo's clerk, &c. 3. She left her body.clothes and trinkets to the said Mrs Stewart or Macleod. 4. She bequeathed the residue of her personal estate to Alexander Mackinnon Campbell, a natural son of her deceased son Jobn. 5. She directed her trustees to convey her heritable estates to the said Alexander Mackinnon Campbell, under the fetters of a strict entail; and failing him and his heirs, and a James Mackinnon and his heirs, to Norman Macleod, eldest son of the said Mrs Stewart or Macleod. Mrs Mackinnon died on the 13th of December, seven days after executing this deed. In October thereafter, Major Alex. ander Mackay, as her heir-at-law, brought an action before the Court of Session, against Mr Rollo, for having that deed reduced on the head of death-bed and incapacity. In support of this action he averred - That at the time Mrs Mackinnon executed the said trust-deed, she had contracted the disease of which she died; or, at least, she was Jabouring under the disease from which she never recovered, and which caused her death : That she was confined to her bed by a morbid irritability of the whole system, accompanied by inflammatory symptoms of a mortal character, occasioned by habits of intoxication at the time she executed the deed, and from that time never left her room or bed: That the deed was prepared without instructions from her, when she was unable,