forward to, it would amount to 18 or 19 millions. Alas! the calculations of those persons who commented on that will were as vague in that case as in all probability were the calculations of the testator himself; for I shall state to your Lordships, and it is an anecdote worth mentioning, to shew the value of such perspective views of accumulation: The Court of Chancery having got possession of the property, this great accumulation, instead of being 19 millions, now is under £500,000! It is thirty-three years since; and what was an estate of L.20,000 a-year at the death of Mr Thelluson, is only L.22,000, at the present time, so well have we in Chancery provided for the prevention of every dangerous accumulation of property, which was a subject of great terror at that time, and which it was thought, in time, would have been of an amount that it would unhinge the Constitution that any one man having 19 millions, much more 100 millions, would be too dangerous a subject to be dealt with. But so much has the Court of Chancery, through the medium of certain processes, been the means of putting a drag, as it were, on the progress and velocity of this accumulating engine, that it has brought it down to an exceedingly moderate, and I should think very safe size-indeed, to such a size, that I should doubt whether any of your Lordships would feel very much alarmed at the amount of this £500,000 doing any great injury. I have great hopes your Lordships would not; and I mean to submit a proposition to your Lordships to interfere-to give something to the unfortunate issue, who are starving in the mean time, while this is accumulating, and which would accumulate somewhat faster, but for the profits of certain people in Chancery; for while the profits of these certain people in Chancery are accumulating, the profits of the heir are not so,-for the heir gets nothing of it when he comes into possession; and I hope some remedy will be found capable of being applied (without interfering with the principles on which wills must be supported) for remedying this state of the case in some way or another. That being the case, Thelluson's case was decided in favour of the will, after much most learned argument by four most learned Judges-the late Lord Loughborough, assisted by the Master of the Rolls, Lord Alvanley, and two others, and by Mr Justice Buller, and Mr Justice Lawrence. My Lord Loughborough thereupon brought in the act which now lies before you, by which the power of accumulation in England is restrained to the death of the testator-and 21 years after the death of the testator-and upon the principle on which our law of real property, as to perpetuity, proceeds; and then there follows this clause with respect to Scotland :-" Provided also, that nothing in this act contained shall extend to any disposition respecting heritable property (heritable property alone) within that part of Great Britain called Scotland." Now, it is contended, on the one side, that this assumes that there was in Scotland, without the act, a sufficient limitation of perpetuity and accumulation, and therefore the act as to real property did not extend to Scotland, because it was not wanted in Scotland. It is said, on the other side (and it appears to me, if it went no further than that, that this is the better argument of the two), that the act expressly excludes Scotland; because it proceeded on a principle known to the law of England,-namely, the period of 21 years, beyond which perpetuities are not allowed, or states of contingency are not allowed, for fear of creating perpetuities. But that it is in Scotland the law of real property, instead of discouraging perpetuities, to give them all manner of encouragement, and as, instead of being confined, as here, to the lives in being, and 21 years beyond, together with the period during which a child (as there may be a child in ventre se mere) may become in esse ; and that is the principle in the law of England; and as there is none such in the law of Scotland, which, on the contrary, permits you to take property for ever and ever, just as you may in one case in England, wherever a reversion happens to be in the Crown, and in that case only, that there being no limitation in Scotland as to perpetuities, and a limitation of 21 years in England, the adaptation of the limitation was intelligible and rational in England, but would have been inconsistent with the principle of the Scotch law, and therefore it was not extended to Scotland: This is an argument that appears to me capable of being urged on the other side, against the implication raised on the third section of

the act excluding Scotland; but there is another observation which was stated (although that to which I have alluded was not,) by the Bar, which appears to be decisive. Real and personal property stand precisely on the same footing in Scotland, precisely the same, there is not the least difference in this respect. If the law restrains perpetuities in Scotland as to real property, it restrains perpetuities in Scotland as to the accumulation of personal; that cannot be denied. Then, this confines the application of it to heritable property-then it leaves personal property where it stood by the common law of Scotland. Why, then, that being the case, it does this-it leaves heritable property as it stood by the common law; but this does extend the provision against the heritable property. If there is any provision restraining personal property-I should have said, if there is any provision that restrains the accumulation of personal propertythis does allow that to extend to Scotland; for the proviso is only excluding heritable property from Scotland-it only confined the act to England quoad the heritable property, and leaves the act to extend to Scotland quoad personality accumulation; but if so-if so, does not it clearly follow that this act leaves herit able property unrestrained in Scotland, and not only unrestrained, but without assuming that there is any restraint in Scotland; because, there being a restraint in Scotland as to heritable property, and none as to personal property, it is contrary to any thing that has been argued on any side of the Bar, that if the one is restrained by the law of Scotland, so is the other, and consequently, this act would not have been wanting to extend to personal property in Scotland, according to the argument of the appellants. Yet it does not extend to personal property in Scotland, but is expressly precluded from extending to heritable property. Now, my Lords, so far as regards the act, I do not think it signifies very much either way, but the balance is certainly to be taken against the argument of the appellants. I ought to say it is not perhaps quite correct to imply reasons of this sort from an act of Parlia ment, when you consider that the Legislature is always to have the same fairness and candour dealt out to it as a Legislature, that a Court of Justice has in giving an obiter opinion in deciding on a particular point of a case. When a legislature lays down a particular rule upon the subject which it is dealing with-upon the particular point in the act, if I may so speak-by analogy to judicial decisions, it is very fit he should be obeyed; and he must be obeyed, if he declares the law, and recites; whereas the law, in such a case is doubtful, and I declare that such and such is the case; that is made the law. But if, in the preamble to the act of Parliament; and your Lordships are aware of that case of Gray, and something, respecting the statute of sewers, and another statute in James the First's time-in that case, the Courts held, that although the preamble to an act of Parlia ment expressly affixed a certain construction to another act of Parliament, the Court passed by that preamble altogether, although they were much pressed by the argument which, at first sight, appears a rational one to common sense-who, so good a judge of what he means on the former act, as the lawgiver who is passing a new act. Although the lawgiver expressly said-Iformerly passed an act, and meant so and so by it; yet that was utterly rejected by the Courts of Westminster Hall, by a decision which has ever since been held to be the rule in such cases. They held that that was not an argument to regulate the construction of the act, because it was an obiter dictum, if I may so speak, of the Legislature; and it was only the Legislatme affixing the construction to the act, not to state what the law was by positive enactments, or by declaratory sections; and as it had neither enacted or declared, but only stated by way of recital in the preamble, that was by no means the mode of getting at the intention of the former law; and I should say, that was an argument that applies in a certain degree to such doctrines as had been on either side laid down here, namely, that you cannot, when the Legislature does not lay down a distinct meaning, either by enactment or declaratory phrase, that you are not rashly to imply from what the Legislature has not said, or from an omission on the part of the Legislature, any meaning-any sense which the Legislature had of what was, or what was not the law in any other respect. Now, then, my Lords, we come to the grounds on which it was argued on the Scotch law,

against the validity of these deeds. I think it clear, in the first place, that the pursuer had a title to pursue; and that has not been disputed, I apprehend, at the Bar here. I take it to be clear, in the next place, that you must construe these different deeds together, and as parts of one conveyance. I am inclined to that opinion, that you must construe them altogether; but as to the construing them altogether, it will be less necessary to dwell much upon that second point; because, although you do construe them altogether-I am clearly of opinion the Court below have come to the right judgment in saying this is not, by the law of Scotland, such a perpetuity as that the Court of Scotland will not allow a man to pursue with regard to property of which he is the admitted fiar. Now, my Lords, there is no dictum of any text writer on either side. There is, in the next place, no decision at all on all-fours with the present case; but those decisions on which reliance is had for the appellants, appear to me not to be applicable to this question. Much doubt is raised on the Barholm's case, M'Culloch of Barholm. I do not deny that that was well decided, and I do not deny that there have since been decisions on subsequent occasions, as stated by the learned counsel for the appellant, in which it has been so far appealed to in those other cases, as to make it impossible to state that it was a case that had slept in the books, or that it was a case that had been repudiated, either as against principle, or to have fallen into a kind of disuetude, from not having received the sanction of the profession. Without denying that a case may be in that situation; because every one in Westminster Hall well knows that several cases which have never been overruled, are well known by every lawyer to be of no authority at all, there was a case of Fitzroy, and something, which was a case that stood unreversed for a couple of centuries. Until the other day, it was never considered as law, and it was upset directly it was mentioned; but the decisions with reference to the Scotch law, do not go to affix the same stigma on the Barholm's case, that I can see. The question is, Does the Barholm's case apply to this? And when I look to the decision in that case, I find the report of it by Lord Elchies, is, "This was a question of reducing two most ridiculous entails and trust-rights, whereby, excepting small aliments to the heir, the rents were to be applied for many years in purchasing other estates, and entailing them in the same manner. We all agreed to reduce the whole deeds, remitting to the ordinary to allow the pursuer to prove the reason of death-bed against the last deed. I inclined to give that proof first, though I agreed in opinion as to the other reasons; but the Court did as above." Now, I see nothing about death-bed here, which appears to apply to only one deed, although, if it was all to be taken as one conveyance, that would be decisive, if it applied against the whole deeds-the one as well as the other. But on looking into the papers, which I have done, I find, that really it is in vain to contend that that was not in the nature of a perpetuity-it was not 21 years-it might be 60 years; and accordingly, in one part of his argument, he puts it, it must be 60 years? I do not go along with the argument to that extent, because I think it might have been less. There are provisions again and again for unborn children; and to shew it does not merely deal with persons in existence, and to give them a vested interest in possession of the accumulated fund at some period of a life in being, it says-if only five children should come into existence, or shall be in existence, then five years shall be taken; but if more than five, then four shall be taken ; and, accordingly, the calculation is made on twelve, which would be 48; and then that would be a fund to accumulate, and to accumulate in order to be dealt with after those children came into existence; and when they shall attain the age of majority— that is, 21 years after the last of the 12 children; and the accumulation does not cease until after the birth of the last of the 12 children, but the last of the 12 children might be born 21 years (they were all grand-children of this person) after the death of the person; there is 42 years at once-it might have been 40 years after the last, or 30 years after the last, and there would have been 51; and therefore, it is in vain to talk of this being 25. That is a confusion of the notion of five years and five children-that, as I read, the deed is an accumulated fund for 25 years, but not to come into possession at the end of 25 years, but to come into possession afterwards-it

might be many, many years; but my Lords, I ought to state, that in reading this deed, I feel the greatest doubt, whether I come to the right construction of it. I feel great difficulty on that subject, from its being a ridiculous, and as the Court called it, a contradictory and unintelligible disposition of property, which I defy any man to make sense of; for instance, where he says it shall be given to my second son, or failing of a second son, to my second daughter, as if the eldest daughter was out of the field, and as if the elder son was out of the field; and yet you plainly see, from the other parts of the deed, he does not mean that it is not that he means that; but he means something different—it is not easy to see what it is clearly that he means. This is just the common case where Courts of law are called on to put a construction on a will or deed-to find out a meaning for man, who had no distinct intelligible meaning at all; and that gives rise to a great obloquy on the law. You must, for the sake of a general rule, adopt a principle of construction, and you must adapt that principle to words which express no meaning; the man either having had no distinct meaning at all (which is very often the case), or, having had contradictory meanings. And, with regard to the learned profession of which I have the honour of being a member, some of the most difficult cases have occurred among wills that have been penned by lawyers; and among other Judges, as is very well known, my Lords, the late Lord Ellenborough, who was a very excellent lawyer in every respect, and also a sensible man, and in order to avoid coming to Courts of law after his death, he had no desire his property should go in that manner; and therefore he said, I desire all my words to be taken in the plain and ordinary meaning, and in order to avoid any law suit on the subject. Now, that is the case with respect to this. I never saw an instance of one more irrational, more unintelligible, and more contradictory, than this in the Barholm's There is a great specialty in the Barholm case, my Lords, and it very possibly might have taken another turn, if the Court had seen a plain, consistent, and distinct intention on the part of the maker of those deeds, such as they plainly, clearly, and consistently perceive to have existed in the mind of the maker of these deeds of Lord Strathmore's deeds; and if I were to be satisfied it was only an accumulation for 25 years in the Barholm case, which I am not at all satisfied of, but the contrary, and if I were to be satisfied that that was the meaning of the party (which I cannot), when I find it is mixed up with a vast mass of utterly impossible-to-be-construed clauses, I say, that makes such nonsense of the instrument, that that of itself constitutes a material specialty, and totally prevents that case from applying as an authority to another case, where no such materials of specialty exists, but where there is a clear, consistent, and intelligible sense operating from the beginning to the end of this very short and simple disposition. Whatever bad qualities may be alleged against Lord Strathmore's disposition, no man can accuse it of being either unintelligible, inconsistent, or confused. Now, my Lords, there are other cases which your Lordships have been referred to, and among the rest that of Hyndford; but this of M'Nair and M'Nair, and the authority of Sir Ilay Campbell, I was much pressed with by the Attorney-General. Your Lordships rather, and he, were particularly desirous for me to look at this; and upon that it turns out he was not a Judge when he made these observations, but he was the counsel in the cause, just as if the successor of the learned Attorney. General should press on the successor of myself here, or your Lordships, with an argument used by him to-day; and I understand the learned President

case.

The Attorney-General.—I believe that was a mistake. He was on the Bench in 1788.

The Lord Chancellor.-I thought he was on the Bench-Sir Thomas Miller came on the Bench then-he was Lord Advocate at the Regency, in 1789; for he argued the case of the Regency in 1789 in the House of Commons. I recollect, although I was very young at the time, reading what the Lord Advocate said in the House of Commons. He did not succeed to the Bench in Scotland until after 1789-but the reason why I think he probably was at the Bar, is, that he does not say--when he says President, that he calls himself President-when he is for setting aside the deed; and in the second instance, when he gives

was

the judgment, he does not mention the President at all, or himself. But, suppose he was on the Bench in M'Nair and M'Nair, I originally thought he was on the Bench, and said so at the time-I am about to suppose, that he was on the Bench: Here is lis argument in the case, to shew how different it is: "A settlement in the form of a perpetual trust, upon the heirs themselves, is a novelty in the law of Scotland, neither agreeable to any principle of common law, nor deriving any support from the act of 1685. The Court went far enough in the case of Lord Hyndford, where a temporary trust for special purposes was supported,"-in the case of Lord Hyndford; that is the case the Lord President refers you to, as shewing it not supported; but here Lord President Campbell says, it was supported-" and in that case the trust was not vested in the heir himself, but in third parties." Now, in this case of M'Nair, it is quite clear they talk of a perpetuity-they say so in so many words, yet it is evidently taken for granted in this codicil, that the stock is to remain. Certain sums are ordered to be paid to the male and female descendants at the age of 25; and now they say, that this is so irrational and whimsical as to be ultra vires of any proprietor, that it might not vest in any proprietor until the expiration of so many years, as would make it come within the description of a perpetuity. It is either a perpetuity-in which case the decision does not apply at all-or it is not a perpetuity. Now, let us look at the decision-First, the Hyndford case is distinctly stated by Lord President Campbell to be for a limited number of years, and to be sustained-What do they say in this case of M'Nair and M Nair? Lord Monboddo, a great authority, doubtless" The deed is legal, and ought to be sustained." Swinton is for setting it aside, on the ground, that when a man ceases to live he cannot hold his property. Now, really, my Lords, if a learned Judge chooses to state such a reason as this, which is contrary to all law, that a man is to have no power after his decease, of disposing of his property, real or personal,-what possible conclusion can I come to, except either that the learned Judge never said so, and that therefore, I have no reason for knowing he was for setting it aside, as it is all parcel of the same report, and that it is a totally false and injurious report, calumniating the memory of a very learned Judge, or, that the learned Judge, on this occasion, did not exercise his usual acuteness and discrimination. That is no ground for putting any weight on it. He cannot hold it—but he may deal with it. "It is civil law, and not the law of nature, that allows testamenti factio, and substitution; but still, the heir, when he succeeds, may do as he pleases." To be sure-but it is the question, When is he to succeed; and to what period is the succession to be postponed? This case is not a tailzie within the Act of Parliament. He says, you are trying to do per indirectum, what the law will not allow, even if you give credit to the common law; and then, there is the Stormont case, and the other cases prior to the act; and it is quite clear, as I stated in the argument, that since the Act you can only tailzie in a certain way. Well, says his Lordship (and there I go along with him) you must not get rid of the act by a sidewind; you must either make it an entail or not. If it is not an entail, it has no protection; if it is a tailzie, it must have the fencing clause and registration. Then, says Justice-Clerk, one of the greatest lawyers that ever sat on the Bench in Scotland-a very great lawyer upon the law of real property-one of the highest of law authorities, and one of the soundest headed men, and a man of the strongest and most masculine understanding I had ever the good fortune to hear argue-says Justice-Clerk, "To overturn wills of defuncts upon ideas of rationality is very delicate. If it be unlawful, it ought to be set aside, but not otherwise, if it be at all extricable. If it is unintelligible and confused, then it is set aside, not as a perpetuity, but because you cannot make sense of it; so was the case of Barholm, perhaps, to a certain degree. It has lasted already twelve years, and may continue until it becomes inextricable. Entails were introduced long before the Act of Parliament;" and I say, that the result of that is, that Lord JusticeClerk was against setting aside the deed. It is not very distinctly given" The President was for setting aside the deed; but be considered it a perpetuity." Lord Eskgrove had an inclination to set it aside, but he hesitated at present, at the instance

of the heir who represented the granter. Dunsinane and Henderland the same;-so they did not give a decision on the subject. Lord Alva, an amiable man, and a Judge of no authority whatever no more authority than any man that can be named in any Court that ever sat in any Court-I would as lieve have taken the opinion of a Justice of the Peace at Quarter Sessions, on a question of real property, as I would have taken the opinion of that very amiable person, but not very celebrated lawyer. Now, then, comes the Lord President Campbell's second argumentHe goes through the argument, that it went to create a perpetual trust with the heirs called to the succession, for behoof, not only of themselves, but of the descendants of the granters, to the end of time, so long as any should exist. And yet, notwithstanding this, you see three Judges-among others a very learned Judge-three Judges are of opinion against it, that this ought to exist; and the other three do not decide it; yet this is a perpetuity; and how can I say the law of Scotland abhors perpetuities. Then comes the President Campbell-" The deed goes much farther, by creating, or attempting to create a sort of taillie, under the name of a trust of a very anomalous kind, to have endurance, if not for perpetuity, at least so long as any descendants of the six children of the granter shall exist, which may be for many generations, and perhaps for ever; and including an infinite number of persons." That is Lord President Campbell's statement of this case, which goes to a perpetuity. Lord Hailes' "interlocutor goes too far in supporting this deedin the whole, it cannot subsist for ever." Swinton-"It is not an entail, and no instance of such a settlement being sustained,suppose an estate ordered to be divided into square yards." There must have been something said that does not distinctly appear "capricious." Perhaps Lord Eskgrove, a very eminent lawyer-one of the greatest of Scotch lawyers-a man of a most luminous understanding on all subjects of law;-I go no furthera man of extraordinary talents and most luminous understanding upon all legal points" he says no ground for setting it aside; if he may choose stranger heirs, why not his heirs; besides, this pursuer is bound." Justice-Clerk." The great rule is, that the will of the defunct must have effect-if it becomes inextricable it will release itself. We cannot divide the deed. Cannot the absurd clauses be set aside-suppose they were immoral or impossible." He does not say they were. Lord Henderland, "fictio juris gentium, here it is not inextricable at present, and may be supported in hoc statu." As far as this goes, it is in favour of the deed. If they had all agreed in setting it aside, and with one voice had said, it is a perpetuity, or may be a perpetuity

Doctor Lushington-The deed was supported.

The

Lord Chancellor.-I suppose it was. Now, I wish to ask what is the meaning of this. In the late case of Lord Hyndford's settlement, the Court went as far as possible to sustain a trustdeed, where the purposes went a little beyond what has usually been thought reasonable and consistent with the powers of a proprietor, with regard to the disposal of his estate after his death. But lawyers differed with regard to the validity of that deed, though temporary in its nature, and calculated for purposes, which, in the case of a noble family, were not thought inexpedient or unwise. That is all for supporting the deed. case of a perpetual trust," says his Lordship, " in the individual owner of an estate, himself and his heirs for ever succeeding to that estate, declaring the right to be vested in them indefeasibly for certain ends and purposes, is a novelty both in law and practice. The mere name of a trust cannot tie up their hands; for if they succeed to the fee of the estate, they must have the power of disposal, unless, in so far as they are limited by clauses prohibitory, irritant and resolutive in the usual form, and having the usual effect of an entail by the law of Scotland, or come under an obligation that is actionable." Now, my Lords, I really ask your Lordships, whether any one can doubt that Lord President Campbell's opinion only goes against a perpetuity being created; and in that opinion he is not supported by his brethren; but he also goes this length" I am not against this, because it is an entail-it is either an entail or nothing-if it is not an entail, it is unknown in law a novelty-an anomaly in the law; and if it is an entail, where are the fencing clauses, and where is the registration?" Then, on that ground simply he puts it. Now,

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 appellant'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 have been prepared to give the same opinion to your Lordships after hearing 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 Lordships 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.

Lord 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 shameful 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.

38.

Sir

Appellant's Authorities.-(1.) M'Neil v. M'Neil's Trustees, 27th January 1826; S. & D. Kerr v. Kerr, 23d 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. McCulloch 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. M'Culloch v. M'Culloch, ut supra. Earl of Strathmore v. Strathmore's Trustees, 13th December 1822. Lord Glammis v. Do. 21st February 1823; Shaw's Reports. Law of England, Taltarum Case, 12 Edward IV. Potts v. Brown, Croc. Jac. 590; 2 Roll's Rep. 216. Howard v. Duke of Norfolk. 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, 23d 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 ". 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, 2d 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, 2d February 1815. Moir, March 1820, affirmed 1st 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-Circumstances in which, held, affirming the judgment of the Court of Session, that an executrix qua relict, having come under a gratuitous obligation to pay out of the surplus rents of her own estate 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 to appropriate her surplus rents to the payment of these debts until they were extinguished, without 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 debts 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 anxious, 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 exe

cution."

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 trust, 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 which 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 hereto, &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 ultra, 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 by 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 arrangements, the latter raised the present action of multiplepoinding in November 1819, for the purpose