other uses or purposes whatever; and the said Magistrates and Town Council and Clergymen, shall lend out the free balance of the interest and profits arising from the said sum (that is the L6000) and residue every year, on such heritable or persona! security as they may deem sufficient at the time, so as the same may accumulate with the additional interest arising thereon, until the principal sums and accumulated interests shall amount to the sum of L Sterling." Therefore, your Lordships will perceive that the L6000, and the residuum, is to be put out in the manner directed, to raise interest upon it, and that that interest is to go on accumulating till it amounts to the sum of pounds blank; and till it has amounted to the sum of pounds blank, the trustees can build no hospital, and they can do no act whatever, in the execution of this trust. Now, my Lords, when does it amount to the sum of pounds blank? Is it after the national debt is paid, or before? No human being can possibly tell. I say then, that unless your Lordships can give some meaning to the blank, it is a trust which can. not by possibility be executed. A Noble Lord once said, on the very seat on which I am now sitting, that it was not for wise people to put fool's nonsence into sense; but it is impossible for any person, wise or unwise, to put any con struction upon this. But, my Lords, let us go on with the rest of the deed,-" When the same shall be stocked, secured and employed." When what shall be stocked, secured and employed? When the same pounds blank?-"when the same shall be stocked, secured and employed upon lands, bonds, obligations, or other sufficient security, from time to time, for erecting and maintaining the foresaid hospital, and for the maintenance, clothing and education of boys." How many boys? One! One hundeed? or one thousand? The sums constituting the provision are uncertain, and the objects to be provided are equally uncertain. Now, my Lords, undoubtedly supposing these sums were certain, and supposing the objects to be provided for were certain, the rules and regulations themselves are suffi ciently provided for, yet those rules and regulations can never be called into existence till you get rid of the other difficulty-till you can make that certain which is left so uncertain in the deed, Now, I think that we have not been referred to any cases on this subject, and I hope not many cases of this description are to be found; but I think this deed is to be accounted for, and I account for it in this way:This man was within two days of his death, but he did not think he was to die so soon; for at the time he executed this deed, he contemplated the execution of another deed, by which directions were to be given to trustees as to the lands of the trust. What is the inference from that? That this poor man, not thinking that he was so near his end, left the instrument in this imperfect state, comtemplating that it would please Providence to allow him time to complete it, but such was not the case. My Lords, we have been referred upon this subject to one case, and to one case only. I think I have already given an answer to that case, by stating, that if, in this case, any part of this deed could be executed, it ought to be executed, although the rest be incapable of execution. The case I allude to was decided by your Lordships' House, when you were assisted by a learned Judge, whose decease we all lament-I mean that excellent man, the late Lord Gifford. Now, let us see what that case was that was decided; and I will state to your Lordships, that I entirely subscribe to every syllable said upon that occasion. It was the case of Hill and others, appellants, v. Burns and others, respondents. " Alexander Hood, of the Island of Mountserrat, after bequeathing certain legacies, conveyed the residue of the estate, real and personal, amounting to about L30,000, to his sister, Mary Hood of Glasgow, and her heirs, for ever. Thereafter, she executed a trust-settlement in favour of the respondents, as trustees,

in which, after leaving legacies to different individuals, she appointed the residue of her estate," the residue, as it existed at that time, which makes a great distinction between that case and the present, to be applied to charitable purposes, in these terms: "I appoint the residue of my said estate to be applied by my said trustees and their foresaids, in aid of the institutions for charitable and benevolent purposes, established, or to be established in the city of Glas gow, or neighbourhood thereof, and that in such way or manner, and in such proportions of the principal or capital, or of the interest or annual proceeds of the sums so to be appropriated, as to my said trustees and their foresaids shall seem proper: Declaring, and I hereby expressly declare, that they shall be the sole judges of the appropriation of the said residue for the purposes aforesaid." My Lords, what was the question in that case? It was said, it is necessary for this lady distinctly to state who are the objects of her bounty. Lord Gifford said, No; it is not necessary for this lady distinctly to state who are the objects of her bounty. She says, it is in aid of all the charitable institutions existing, or which hereafter are to exist; and in order that there may be no uncertainty about that, as to what charitable institutions now exist, or as to what may hereafter exist, I leave to my trustees the decision. My trustees are vested with power. They are to say who are to be the objects of my bounty. Now, your Lordships perceive, that in that case, there is not the uncertainty which there is in the present. There the extent of the fund was ascertained, and the power over it was given to trustees, and the mode in which it was to be managed was left to their discretion. In the judgment in that case, Lord Gifford goes into a learned argument, and refers to a vast number of cases, which I will not trouble your Lordships with reciting, every one of which stands upon the same principle aз that case which Lord Gifford decided, that there was a certain fund, and the only ambiguity was as to the appropriation; and in all those cases that difficulty is got over by a large discretion vested in the trustees. Now, no discretion is vested in the trustees here. If it had been said in this deed, The trustees shall begin to build as soon as they have accumulated such a fund as they think equal to the purpose I have in view, that would have obviated the difficulty; because, then the time when the hospital was to be built would be left to their discretion. But there is no such discretion left with them, or with any body else; and it is quite uncertain what the testator's own intention was upon the subject. My Lords, under these circumstances, it is with regret that I feel it my duty to advise your Lordships to reverse the decision of the Court below, for which I have the greatest respect, but I must conscientiously exercise my own opinion. I have done so in this case; and I thought this case of so much importance, that, during a large portion of the night which has intervened between the time when this case was under discussion yesterday and this morning, this case has occupied my thoughts; and, after having given to this case the most attentive and anxious consideration, I feel myself bound to recommend to your Lordships to reverse the decision of the Court below; and also to declare that the two deeds I have mentioned should be reduced. Ordered accordingly.

Appellants' Authorities.(1) M'Diarmid v. M'Diarmid, 28th March 1828; 3 Wilson and Shaw, p. 37. French v. Watson, 18th February 1669; Leiper v. Cochrane, 9th July 1822; (2) 3 Erskine, 8. 100; 9. 16; 4 Stair, 20, 37; 3 Erskine, 8. 97-8.

First Division.-John Butt, Appellants' Solicitor; Andrew M'Crae, Respondents' Solicitor.

Printed by M. ANDERSON, Law-Printer,

COURT OF SESSION.

INNER-HOUSE,

3d December 1830.

No. 74.-GRIZEL BROWN or SMITH, Suspender, v. BEDWELL AND YATES, &c. Chargers.

Heritable Bond-Power of Sale-Constitution-Stamp-55 Geo. III. c. 184,-Held, that the creditor in an heritable bond, with power of sale, cannot proceed to sell for debt, without constituting his claim, so as to ascertain the sum due-Objection repelled, that the stamp for an heritable bond over the heritage of one obligant, containing also personal bond from another obligant, was only the stamp for an heritable bond by one individual. Prior to 1816, the suspender was married to Smith. On the 23d of August 1816, her father, having purchased certain tenements in Glasgow, caused the seller to execute the disposition in her favour, excluding the future or past deeds and debts of her husband. She was infeft thereupon. The chargers made furnishings to her husband under account-current, of a value fluctuating within £198. And in security of these she executed, along with her husband, on the 10th of May 1820, an heritable bond and disposition in their favour, which declared,

That in case we and our foresaids shall fail to make payment of the said sums that may be due thereon, interest and penalty foresaid, at any time the same may be demanded after falling due, at least within the space of two months from the date of such demand, duly intimated to us, or our heirs and successors, in the said subjects personally, or at our dwelling places, in presence of a notary public and two witnesses, as accords, then, and in that case, the clause of reversion above written, shall, without any declarator or order of law cease, and eo ipso become void and Lull, as in the same event, I, the said Grizel Brown, with the consent of the said Thomas Smith, and I, the said Thomas Smith, for my interest, do hereby sell, dispone, convey and make over from us, to and in favour of the said Bernard Bedwell, Philip Bedwell and Charles Yates, and to the survivors and survivor of them and their foresaids, for behoof foresaid, heritably and irredeemably, all and whole the subjects before disponed, &c. to the end and intent that our said disponees and their aforesaid may sell, as they are hereby empowered, immediately after the expiry of the said two months, and without any farther ad vice or consent from us or our foresaids, or any declarator or process of law whatever, to sell and dispose of the foresaid subjects, or any part thereof, by public roup, after due notice to that effect previously made by separate advertisements, in any one or more of the Glasgow newspapers weekly, for at least six months successively, before the day appointed for the roup, at such price as the same will bring," &c.

On the back of this deed was written her ratification. Infeftment followed. Smith got into difficul. ties. In June 1827, the chargers served on the sus pender an intimation of sale, in which they alleged that her husband owed, in two unretired bills and otherwise, £293, 4. 11. for goods. They advertised. the day of sale. And thereupon Mrs Smith brought a suspension and interdict, pleading, inter alia-That as the disposition had been granted for debts not presently due, an objection, ex facie, arose against it, without the necessity of reduction: That the deed did not bind her as a married woman: That after her husband had once paid off every contraction since the date of the deed, her cautionary obligation, and the effect of the relative deed, could not revive without her fresh consent and execution: That the disposition and Vol. III. Conducted by

J. W. DICKSON, W. H. DUNBAR, Advocates, JOHN
RYMER, W.S., and others, Members of the Bar,

notarial act being not on the stamp required by 55 Geo. III. c. 184, were improbative: That as the debt was illiquid, there could be no sale without constitution; and that the bond contained no stipulation for payment of bills. The chargers pleaded-That reduction was necessary, to cut down the deed under 1696, c. 5: That the act did not apply to the facts of the case: That although it did, the deed was protected by the sequestration statute, 1814: That there was no bar to such a conveyance from a married woman: That the suspender, having led the chargers to act on the faith of her obligation, was barred by acquiescence and homologation: That no valid objection lay under the stamp act; and that the measures taken for the sale were altogether regular. Thereafter, the chargers produced diligence, the regularity of which was denied, to instruct discussion of the principal. And, after closing the record, the Lord Ordinary, on the 19th of January 1830, ordered specific minute and answers on the Stamp Act, with the following

"Note. The stamp employed seems to be the proper ad valorem stamp for a personal bond, or an heritable bond, of the amount for which it was granted. The peculiarity of the deed however is, that the personal obligation is contracted by the husband only, while the disposition in security is granted by the wife. Upon looking at the schedule of the stamp act, the Lord Ordinary has found some difficulty in determining the particular article or articles under which a deed of this kind must be held to fall; and as the plea in law offered by the suspenders on this point was so general as not to convey any intimation of the precise nature of the objection, the Lord Ordinary has thought it right that parties should be farther heard before he disposes of this essential and preliminary point of the cause."

The minute and answers were as follow:

"Shaw for the suspender stated, that there are three provisions in the stamp act, 55th Geo. III. c. 184, in relation to the point at issue,-1st, The case of a simple personal bond; 2d, That of an heritable bond and disposition in security; 3d, That of a personal bond, with a relative heritable bond and disposition in security. That in the first case, viz. that of a mere personal bond, the stamp duty is regulated by that part of the schedule entitled, Bond in England and Personal Bond in Scotland,' which provides, that a duty shall be paid according to the value or amount of the sum in the bond, or as it is called an ad valorem duty. In the second case, viz. that of an heritable bond and disposition in security, without a relative personal bond, the duty is regulated by the clause in the schedule entitled mortgage, &c. and the duty imposed on such a deed is also an ad valorem duty. In the third case, viz. that of a personal bond, and a relative heritable bond and disposition in security, the duty is regulated by a provision subjoined to the clause, Bond in England and Personal Bond in Scotland, &c. above mentioned.' In this latter case, provided the two deeds, (whether on one or two sheets of stamped paper,) are executed of the same date, the duty in regard to the personal bond is a deed stamp of £1, (whatever may be the amount of the sum) and the duty on the disposition in security is an ad valorem duty, the clause being in these terms, Bond in England and Personal Bond in Scotland given as a security for the payment of any sum of money, or for the transfer or re-transfer of any share in any of the stocks or funds before mentioned, which shall be in part secured by a mortgage or wadset, or other instrument or writing hereon, after charged with the same duty as a mortgage or wadset, bearing even date with such bond, or for the performance of covenants, contained in such mortgage or other instrument of writing, or for both these purposes, £1.' But if the personal bond be executed at one time, and the disposition in security at another, an ad valorem duty is required on each, under the following clause of the schedule:-'But where there shall be both a personal and No. VI.

heritable bond in separate deeds of the same date, for securing any such annuity, or sum payable at stated periods, and the ad valorem duty above charged thereon shall amount to £2 or upwards, the heritable bond only shall be charged with the ad valorem duty, and the personal bond shall be charged only with a duty of £1. That in the present case, where the two deeds are executed of the same date, the duty ought to have been £3, whereas they only bear a duty of £2."

"Pyper, for the respondents, Messrs Bedwells and Yates, and their mandatories, answered, that they founded on an heritable bond or disposition in security for £198, for which there had been paid an ad valorem stamp duty of £2, and an additional stamp duty of £1, on account of the number of words in the deed, which amounted to 2160 and upwards, in conformity with the following clauses in the schedule annexed to the stamp act:

Mortgage, conditional surrender by way of mortgage, further charge, wadset, and heritable bond, disposition, assignation, and tack in security, and cik to a reversion of, or affecting any lands, estate or property, real or personal, heritable or moveable whatsoever, exceeding £100, and not exceeding £200, £2; and when any such mortgage or wadset, or other instrument hereby charged with the same duty as a mortgage or wadset, together with any schedule, receipt or other matter, put or indorsed thereon, or annexed thereto, shall contain 2160 words or upwards, then for every entire quantity of 1080 words contained therein, over and above the first 1080 words, a further progressive duty of £1.' That these were the clauses applicable to the case of heritable bonds or dispositions in security, whether granted by an individual or by two or more parties, and containing the personal obligation of each of the granters, as well as a conveyance of the lands belonging to one or to all of them in security, and there was nothing in the stamp act importing that where a husband became personally bound, and the wife, who could not validly contract a personal obligation, granted a conveyance of her lands in security of his obligation in the same deed, any further duty should be exigible in respect of the heritable security."

The Lord Ordinary (11th March 1830,) having heard parties' procurators, and considered the closed record, and whole process, repels the objection to the stamp ; but, in respect that the disposition in security contains no provision for liquidating the amount of the debt, in regard to which the power of sale is to be exercised, and that that amount has not been liquidated by action of constitution, or in any other competent form, in hoc statu, suspends the sale, and continues the interdict, and decerns : Finds no expenses due."

Both the suspender and the chargers reclaimed. At advising, the chargers pleaded-That they were not obliged to constitute, and had complied in all particulars with the deed.

The Lord Justice-Clerk could see no evidence of the particular sum said to be due. It was as necessary to constitute the debt in going against the estate, as in going against the person; for the sale could not be allowed before the ascertainment that a debt was due.

"The Lords having examined this note, and other proceedings, and heard counsel thereon, Adhere to the interlocutor complained of, and refuse the desire of the note; and having considered a counter note for the suspenders, the Lords find them entitled to the expenses of opposing the chargers' note: Refuse the counter note, quoad ultra, and remit to the Lord Ordinary to proceed." &c.

Authorities for Suspender.-1696, c. 5. Bell, II. 246. Harvie v. Fawell, 21st February 1791. Lennox & Co. v. Auchenclose, 19th May 1821. Stair, I. 4. 16, Note B. Br. Ed. 55 Geo. III. c. 184.

Authorities for Chargers.-1696, c. 5. Maxwell v. Drummond's Trustees, January 21, 1823, July 2, 1825; Sh. II. and V. Bell, II. 253; Stair 1. 4, 16,17. Eicis v. Keith, December 1665. Blair . Keith; Marshall v. Fergusson, December 1683; M. 5990. Sommerville v. Paton, 3d February 1686. Ker v. Skinner, 14th June 1715; M. 5991. Menzies v. Creditors of Gillespie, 8th December 1761; M. 5974. Watson v. Robertson, 10th December 1772; M. 5975. Brown v. Storie; M. 14,125.

Second Division.-Lord Ordinary, Fullerton.- Act. Hope, Shaw. Alt. Keay, Pyper.-A. P. Henderson, and M'Millan and Grant, Agents.-Mr Thomson, Clerk,

3d December 1830.

No. 75.-JOHN GARDNER, Pursuer, v. GILBERT O. GARDNER, &c., Defenders.

Death-bed Deed Homologation Circumstances in which, where there have intervened no onerous considerations, or other change in the situation of parties by a death-bed deed, the heir-atlaw was held, chiefly as being sub errore juris, not to have homologated that deed, to the effect of raising a personal bar against his reduction of it.

In this case of reduction, on the head of death-bed, the interlocutor and note of the Lord Ordinary explain the circumstances with sufficient fulness.

"The Lord Ordinary (18th February 1830,) having considered the closed record, and writs produced, and heard parties' procurators thereon: Finds it admitted that the deed of entail, of date the 15th March 1808, brought under reduction, was executed on death-bed, and was therefore liable to reduction at the instance of the pursuer, as the heir of the previous investitures : Finds that the said deed was to the prejudice of the pursuer, in so far as it imposed upon him the fetters of a strict entail, whereas he was entitled, as heir-at-law, to take up the estate by titles in fee-simple, and that the said deed conferred no benefits on the pursuer, whereby he might be induced to accept of the title under it: Finds it admitted, or not denied, that at the time of the death of the testator, the pursuer's father, the said pursuer had only attained the age of 21, and that during several years preceding, he had been in service in the army, and resident with his regiment in England: Finds it admitted by the pursuer, that, having come to Glasgow soon after his father's death, he did subscribe a certain mandate on the back of the said deed of entail, authorising Mr Thomas Graham, writer in Glasgow, to record that deed in the Register of Tailzies: Finds that the said mandate is not holograph of the pursuer, nor tested in terms of the act 1681, and is in the handwriting of the said Thomas Graham, by whom the deed of entail is also written, and who was a trustee under a separate deed of trust, executed by the testator: Finds it averred by the pursuer, negatively, that at the time when he so subscribed the said mandate, it was not explained to him by the said Thomas Graham, or by any other person, that he was entitled to challenge the said deed of entail as executed on death-bed, and that he did not know that he had such right: Finds that, though a general denial of these averments is made by the defender, he has not put on the record any averment on his part, that Mr Thomas Graham (he being still alive), did give such information, or that the pursuer was, by any other means, informed of the state of his legal rights: Finds that the said deed of entail was thereafter recorded, in virtue of the said mandate: Finds that, on the 30th August 1810, the pursuer took infeftment on the precept of sasine in the said deed of entail, and that he was personally present on that occasion: Finds that, on the said 30th August 1810, infeftment was also taken on the precept, in a contract of marriage previously entered into by the pursuer, with Mrs Janet Ewing, by which contract, and the instrument of sasine thereon, the said entail was recognised as the pursuer's title in the lands Finds it averred, negatively, and offered to be prov⚫ed by the pursuer, that the agent who drew the said marriagecontract was not aware that the entail was liable to be reduced on the head of death-bed, and further averred, that the pursuer was still in ignorance that it was reducible Finds that the pursuer has possessed the estate since that time, on the title so made up by him in 1810; and that, though it is admitted that he became aware of his rights as heir in 1817, no reduction was brought till November 1828: Finds it admitted that there is no issue of the pursuer's said marriage, and that, as no party has appeared entitled to found on the said marriage-contract, and as it is not alleged that any other onerous transaction has been entered into on the faith of the acts and deeds of the pursuer, as confirmatory of the said entail, the question between the present parties depends on the effect of such gratuitous acts of the pursuer, in regard to his own titles, to bar him, in the circum

stances of this case, from still challenging the said deed of entail, as having been executed on death-bed: Finds, that it must be presumed, that when the pursuer gave authority for recording the said entail, he was acquainted with the nature and contents of that deed: Finds, that upon the admitted facts that the deed was executed on the 15th March, that the testator died on the 16th of the same month, and that the pursuer came to Glasgow immediately thereafter, there is clear ground for inferring that be was aware, at the date of the mandate, that the testator died within 60 days after the date of the said deed, and also sufficient ground for presuming, in the absence of any offer of proof to the contrary, that he was in the knowledge that the deceased was, on the 15th March, ill of the disease of which he died on the 16th: But finds, that the acts and deeds founded on, for establishing homologation, are not of such a nature as necessarily to infer or presume, as matter of fact, that the pursuer was acquainted with the law of death-bed, or aware of his right to reduce the entail on that ground: Finds, that the law of homologation proceeds on the principle of presumed consent by the party who does the acts, to pass from grounds of challenge known by him to exist; and sciens et prudens, to adopt the challengeable deed as his own: Finds that, though in general, where onerous contracts have been entered into, or important rights have been established to third parties, rei interventu, following on acts approbatory of particular deeds, the law will presume knowledge of the whole rights of the party, both in fact and law, unless positive deception be proved, the same presumption does not apply in the case of acts done without any onerous consideration, and on which nothing has followed to alter the condition of third parties: Therefore, finds that, in the circumstances of the present case, the acts founded on by the defender, are not sufficient to infer a deliberate consent by the pursuer to abandon his preferable title as heir-at-law, so as to establish against him the defence, by personal objection, of homologation of the death-bed deed: Repels the defences, and reduces, decerns, and declares in terms of the first conclusion of the libel: Finds no expenses due.-Note.-The Lord Ordinary thinks the case nice and difficult. On the facts of it, however, it appears to him that the circumstances are such, as not only not to raise a presumptio facti that the pursuer was aware of his right, but rather to produce a conviction that he did act sub errore juris. For it is not easily conceivable that without any motive assigned on this record, he should have voluntarily put himself under the fetters of such an entail, when he had so easy a course for establishing a right in fee-simple; and when it is observed that the defender does not state that either Mr Thomas Graham, or any one else, explained to the pursuer the right competent to him, and does not even aver that it was in fact known to him, there seems to be no real doubt that he arted in ignorance. Although, therefore, there is no allegation or insinuation of any fraud having been intended or committed, the Lord Ordinary finds himself unable to decide the case on an assumption of knowledge, which he fully believes not to have existed. And, on the law of the case, after examining all the authorities, he has come to the opinion that, in such a case of gratuitous acts, not implying, as matter of fact, any knowledge of the right surrendered, and not leading to any involvement of the rights or interests of third parties, the legal bar of homologation cannot be established, where the circumstances do not admit of the assumption of an actual knowledge of the right, both in fact and law. If there had been issue of the marriage, the case would have been essentially different, in respect of the marriage; because, in a question on an onerous contract, it must be held that a man is bound to know his own rights before he transacts with third parties, and is barred by personal exception from pleading ignorance. This was the precise nature of the case of Mackenzie in 1768, (Hailes, p. 252.) But it is impossible to read the opinions delivered in that case, without seeing that the distinction is pointedly recognised, and that the judgment would have been different, if it had not been for the consideration that the party defender was the heir of the marriage-contract. In the case of Cunningham v. Cunningham, 20th February 1823, affirmed April 15, 1825 (which was not mentioned in the debate), the decision also essentially depended on onerosity in the ratification, and representation by the party challenging.

"The cases chiefly founded on by the pursuer, are Colquhoun,

16th December 1828. Lord Reay, 25th November 1823, affirmed June 7, 1825. Murray, 21st January 1826. Bayne v. Belshes, 1793, (Bell on Testing of Deeds, p. 205, &c.) 9th July 1822, Leiper v. Cochrane. 6th July 1827, Brodie. 5th August 1778, Carrick v. Carse. July 16, 1733, Stirling v. Lauderdale, (Mor. 2930). 13th February 1810, Munro. 29th November 1825, Johnstone v. Paterson.

"Those relied on by the defender are-February 8, 1706, Bertram. 1768, Mackenzie, (Hailes). July 15, 1760, Ander

son.

January 13, 1774, Steel v. Steel, (Hailes)." Against this interlocutor both parties reclaimed, -the defender on the whole,-the pursuer, praying—

"That it may please your Lordships to recal the said finding, and to find that it is admitted by the defender, that the pursuer did, in 1817, institute an action of reduction of the said entail, and that it is averred, in the 13th article of the pursuer's revised condescendence, that the only reasons why he did not then proceed with that action, were, 1st, That his affairs became embarrassed, and that his trustees, who had come under considerable advances for him, declined to make the further advances necessary for carrying on the law-suit; and 2dly, That he was obliged, from the state of his circumstances, first to go to the Island of Arran, and afterwards to America, where he remained upwards of five years; that, on his return, his embarassments continued for some time longer; and that he was unable to follow out legal proceedings till the date of the present action; and, quoad ultra, to adhere to the said interlocutor; or to do otherwise in the premises as your Lordships shall seem just." The defender did not appear. The Court refused. his note; and on the note for the pursuer,

"The Lords, with reference to their interlocutor of this date, on reclaiming note for the defender, refuse the desire of this note for the pursuer, with this variation, that the pursuer did institute an action of reduction in 1817, but that it was not proceeded in; and they therefore recal the findings of the Lord Ordinary's interlocutor, above referred to."

Second Division.-Lord Ordinary, Moncreiff.-Act. Christison.-Alt. J. A. Murray.-William Renny, W.S., and John Whitehead, S. S. C., Agents.-Mr Rolland, Clerk.

3d December 1830.

No. 76.-JOHN LOCKHART & SONS, Pursuers, v. JOHN
WIGHTON, Defender.

Agent and Client-Expenses-Held that an agent, who has failed, tempestive, to execute, and attentively to follow out the instructions of his client, in raising an action for recovery of a debt, so that the debt is ultimately lost, and has incurred great expense by a want of professional skill, is not entitled to recover his expenses from the client.

The deceased David Wighton, brother of, and represented by the defender, sold five head of cattle to Blair, in March 1825, and on 21st April 1825, received Dunlop's holograph obligation for the amount, which, although not mentioned in the letter of obligation, otherwise appeared to be £61. Wighton instructed a writer in Glasgow, to employ an Edinburgh agent to prosecute for the price. The following letter was the consequence :

"GLASGOW, 3d May 1825, "MR Writer, Edinburgh.--Please send me summons at the instance of David Wighton, cattle-dealer near Forfar, against John Dunlop, cattle-dealer in Stewartou, for £61 Sterling, conform to account and holograph obligation, by the defender, herewith produced.' As the matter will likely be settled, you can annex me a note of fees. I am, dear Sir, your's truly."

The account and obligation referred to, were not then forwarded to the Edinburgh agent. But he raised, on the 4th of May 1825, a summons against Dunlop, setting forth:

"That John Dunlop, cattle-dealer in Stewarton, is justly in

debted and owing to him the sum of £61 Sterling, conform to account and holograph obligation, by the said John Dunlop, herewith produced and referred to."

This was sent to the Glasgow agent, who returned it with the following:

"GLASGOW, 1st June 1825. "MR .-I inclose you summons at the instance of David Wighton ». John Dunlop. No settlement having taken place, you will, of course, have it called in Court-the day of appearance, you will observe, is Friday first, the 3d instant. I also inclose you the obligation founded on in the summons. I am," &c.

The summons was called on the 3d of June 1825. The agent of Dunlop stated by letter, on the 14th, that his client, although he believed the price to be much less than what the summons set forth, was willing to pay whatever he should be satisfied was the price, by a writing under the hand of Blair, or otherwise; and that the obligation did not specify the sum. And Dunlop gave in defences, stating-That, as he was bound only as cautioner for Blair, who had not been cited, the action was, hoc statu, incompetent. The process was sisted till a supplementary summons should be brought against Blair. In this, which was brought on the 23th of June 1825, the pursuer set forth: "That John Blair, flesher in Kilmarnock, is justly addebted and owing to him the sum of £61 Sterling, conform to holograph obligation by John Dunlop, cattle-dealer, Stewarton, for the said John Blair, produced in process at the pursuers' instance against the said John Dunlop, presently depending before Lord Meadowbank, Ordinary, and here referred to brevitatis causa," &c.

In the meantime, Dunlop had consigned the £61, and proposed to take Wighton's oath as to the price. The original summons was thereafter (January 5, 1826,) amended, and made to run as follows:

"That John Dunlop, cattle-dealer in Stewarton, is justly indebted and owing to him the sum of £61 Sterling, conform to account and holograph obligation by the said John Dunlop, herewith produced and referred to, which obligation is of the following tenor:- Glasgow, 21st Aprill 1825.-As I oundertak that John Blar has bowght 5 cattell of you Daved Wathon (Wighton,) and if John Blar does not pay them, I will pay them may sellf thes day uek. I am yours, (signed) JOHN DUNLOP." That this obligation was granted by the said John Dunlop on occasion of the pursuer and the said John Dunlop and the said John Blair having met in the Glasgow cattle-market on or about the 21st day of March 1825, when the said John Blair proposed to purchase five cattle from the pursuer at the price of £61 Sterling; but which the pursuer refused to sell to the said John Blair, as he was not acquainted with his circumstances: That, upon this, the said John Dunlop offered to take the cattle himself, and be answerable for the price: That the pursuer, who is an illiterate country man, desired the said John Dunlop to grant him an acknowledgment for the receipt of the cattle, which the said John Dunlop pretended to do, and thereupon granted the acknowledgment above recited, in which, however, he only stated himself as a cautioner, and in which he fraudulently inserted an erroneous date: That the pursuer, having received the foresaid acknowledgment from the said John Dunlop, which he was assured by him was in all respects regular, delivered over the cattle to the said John Dunlop and the said John Blair, by whom they were taken away, and by whom, or one or other of them, they were afterwards slaughtered and sold: That immediately after the said bargain was concluded, the said John Dunlop boasted to several of his acquaintances, as the pursuer is ready to instruct, that he had imposed upon the pursuer, by inducing him to accept of a document which was not binding in law, from the date which it bore, and the manner in which it was framed That the said John Dunlop nevertheless admitted that he had received the cattle in manner above mentioned."

On the 4th of February 1826, Dunlop having given his bill for the £61, and agreed to pay the expenses, when ascertained; and both he and Blair being then solvent, though afterwards not so, Wighton's Glasgow agent wrote to his agent at Edinburgh, to have them ascertained. The latter rendered his account to David Wighton. Towards the end of 1828, he drew on David Wighton for the amount, in favour of the pursuers. But the bill was dishonoured by non-acceptance. And the pursuers, in January 1829, brought their action for the contents, £30, 8. 3, against the client. This action was continued against the defender, as representing his brother. The pursuers pleaded-That their cedent had well discharged himself for the defender's ancestor, according to instructions; and that he had fully divested himself in their favour. The defender pleaded-That as the Glasgow agent, the only person instructed by his deceased brother, had lost the debt by not obeying instructions tempestivè, and by not properly following up proceedings, he could claim no law charges; and that the pursuers had no right to the sum pursued for, because their author was never employed by the client, and would have had no claim on him; at any rate, that the Glasgow agent had not been discussed.

"The Lord Ordinary (20th February 1830), having resumed consideration of the debate, and advised the process, In respect that, from incorrect or insufficient information communicated to the cedent of the pursuers, by his immediate employer in Glasgow, much unnecessary expense was incurred in prosecuting Dunlop and Blair, which was of no use to the creditor, and that there is no offer to instruct that either the express instructions of David Wighton, or the true facts of the case, justified the form of the action, Sustains the defences, assoilzies the defender, and decerns; finds expenses due, allows an account thereof to be given in, and when given in, remits to the Auditor to tax the same, and to report."

The pursuers reclaimed. At advising, Lord Cringletie thought it a difficulty that.. (the Glas gow agent), had not been called as the person directly employed. (the Edinburgh agent) seemed to have omitted to state the objection which appeared on the face of the obligation, when forwarded, thinking, perhaps, that a settlement would be made. The Lord Ordinary said, not “needless," but "much unnecessary" expense; whence it followed, that some expense had been necessary.

Lord Glenlee thought the expense incurred quite unwarranted. Lord Meadowbank thought the interlocutor right. It was impossible to recover the expenses of a process in which so many blunders had been committed. Although the words “unnecessary expense" deserved consideration, it was difficult to discover any necessary expense.

The Lord Justice-Clerk would not alter. It was his duty to say, that serious blunders had been committed. That in the first summons was excuseable; but the constant repetition of the error, and the amendment of the libel, not by the correction of the true error, but by going into a question of deceit, with which the Court had nothing to do, rendered it impossible for the pursuers to recover. solvent at that time. instituted against him. taken in time. There of action against

....

Dunlop was not denied to have been No regular proceeding had ever been And his voluntary offer had not been could be no objection to reserving right (the Glasgow agent). "The Lords adhere, without prejudice to any competent action of relief against writer in Glasgow, and the defences thereanent: Of new, finds expenses due," &c. Second Division.-Lord Ordinary, Medwyn.-Act. Hope, A. M'Neil.-Alt. Jameson, J. Paterson.-A. P. Henderson, & J. Campbell, Agents.-Mr Thomson, Clerk.