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tion of the statute of Elizabeth, which was the English Act relating to the poor; and there was no substantial difference in the language of the Scotch Poor-Law Act. They were all held liable, because the only persons exempted from rateability are the Crown, and the immediate servants of the Crown-as, for example, such a building as their Lordships' House would be exempt, because it was connected with the Government of the Crown. Therefore it was distinctly held that docks, wharfs, and such property, inasmuch as they had nothing to do with the Crown or public government were not entitled to any exemption. It might have been thought, therefore, that the very point now sought to be raised in the present case had been concluded by the case of the Clyde Docks decided last year. But on looking at the journals of the House, in order to see what was the judgment of the Court of Session then appealed from, it appeared that though in strictness the harbour dues were not held in that case to be included, still what was deficient in that case may now be taken to be supplied by the present case; and it must be taken henceforth as finally decided that in Scotland, as well as in England, the trustees of all public docks, harbours, and the like, were assessable to the poor in respect of their receipts from the property vested in them, whether these receipts were in the form of dues or otherwise, and no matter how the trustees are bound to apply these receipts. Then, as regards the point of res judicata, relied upon in the present case, it was much more plausible than substantial. The question raised in 1818 was whether the Commissioners were rateable to the poor, in respect of the receipts for the year 1846-47. The Commissioners resisted the action then raised, and pleaded that, because they held the property for public purposes, they were not liable in respect of the revenue of that particular year. It was decided that they were not liable; and however general may have been that decision in its terms, still it was only a decision as regards the revenue for the year 1846. It would be, indeed, a grievous misfortune if by any such action it could be concluded for all time to come, that the trustees of public property like this would be exempt from rateability on any ground whatever, and certainly no such effect as that can be given to the former judgment in 1854. Therefore, as the matter of the present action has not been concluded by any former judgment, the appeal fails on both grounds, and must be dismissed with costs.
Lord Chelmsford and Lord Kingsdown concurred.
BECKETT v. CAMPBELL AND HUTCHESON, CLERKS TO THE DUMBARTONSHIRE
STATUTE LABOUR ROAD TRUSTEES.-Feb. 26.
Road Trustees-Obligation to repair Road. The appellant, a proprietor of lands in the 8th statute labour district of Dumbartonshire, brought this action to have it found and declared that the road trustees were bound to keep the statute-labour roads in that district, including a road called the Langmuir Road, in proper and sufficient repair.
The Lord Ordinary (Kinloch), after remitting to a surveyor, found that the trustees had failed to perform their duty of maintaining the road, and that they were at least bound to put the road in repair for ordinary country traffic. The Second Division (Inglis, J.C., absent), recalled this interlocutor, and held that the trustees, under the provisions of their Act, were entitled to exercise their own discretion as to the extent of repairs or expenditure to be made on the road, and could not be controlled in the exercise of that discretion by the Court, and dismissed the action as incompetent.
The Lord Chancellor (Cranworth) said that, according to his construction of the local Act, it imposed on the trustees no general duty to repair, but merely to meet and consider what was the best mode of raising and expending the money which they were authorised to raise. If so, theu no action could be raised against them for not doing that which they were not directed to do. There was another remedy provided by the statute; but these trustees were to have the final decision of such matters as the extent and necessity of the repairs confided to them.
Lords Chelmsford and Kingsdown concurred.
WELLER AND ANOTHER, v. Ker's TRUSTEES.—March 2.
- Power—Personal Bar. This was an appeal in an action of multiplepoinding and exoneration raised by the trustees of the late Robert Ker of Argrennan. The sixth purpose of the deed was that “the trustees shall hold the residue in trust for the use and behoof of Robert Ker, my eldest son, and the heirs whatsoever of his body, whom failing, to the second son," &c. Then the trustees were, on the sons in the order expressed attaining majority, forthwith to convey and make over to the said Robert Ker the said residue and remainder of his means and estate; and, in particular, to convey to the said Robert Ker the estate of Argrennan. The deed contained also this clause —“Declaring that, in case any of our said children shall marry or otherwise conduct themselves so as not to merit the approbation of my said trustees, or a majority of them accepting and acting at the time, the provisions hereby made in favour of said children. so marrying or acting shall only belong to them in liferent for their liferent use allenarly, and to their issue or heirs above mentioned in fee; but it is hereby declared that a regular minute must be entered in the sederunt-book of the trustees expressing their disapprobation of the conduct of any of my said children, to restrict them to a liferent as aforesaid.” In a codicil the truster directed his trustees not to convey the estate to Robert at his attaining the age of twenty-one, but only when he should attain twenty-five.
The truster died in 1854. Robert Ker, his eldest son, married when twenty-two, and the trustees entered in their minute-book an approval of his marriage. The marriage settlement proceeded on the footing of Robert's having right to dispose of the fee of the property, and was adjusted between the law-agent of the intended wife, and a lawyer who was agent both for Robert Ker and for his father's trustees. The minute of approval of the marriage was also adjusted by him at sight of the lady's law-agent. Just before Robert Ker attained the age of twenty-five, a majority of the trustees entered in their sederunt-book a minute disapproving of the son's conduct, and restricting his right in the heritage to a liferent. In this multiplepoinding claims were lodged for the marriage contract trustees of Robert Ker and his wife and for his creditors; and in a competition with a claim for the father's trustees.
The Lord Ordinary (Kinloch) held that the trustees had validly restricted the son's interest in the estate of Argrennan to a liferent.
The marriage contract trustees appealed. The respondents' counsel were not called on.
The Lord Chancellor (Cranworth) said, the grounds on which the appellants relied were three. First, that the power referred to did not apply to the eldest son at all, but this was an argument not much insisted upon, and indeed could not bear a moment's discussion. The second ground was more plausible, and was this—that, though the power given applied to all the children, still it could be exercised only as to the children on reaching majority, and did not extend to them between that age and till they attained the age of twenty-five. He (the Lord Chancellor) was at one time impressed with that argument, but on consideration he thought it was unfounded. He thought the true construction was that that power was not confined to the age of twenty-one, but was to endure for all the time the property was in the hands of the trustees, and until they conveyed it to the children. Then the only other question was whether the trustees, inasmuch as they had expressed their approval of the marriage, and not only the marriage, but take it that they had approved also of the settlementcould then divest themselves of the duty to consider the conduct of the child at the time that the property was about to be conveyed. By the law of England, it would be clear that they could not divest themselves of this duty; and though it was not necessary to say whether the law of Scotland differed from the law of England, still, if å testator gave to his trustees power to take into consideration the conduct of the children before conveying to them the property, it would be strange indeed if they could give up or discharge this power without ever exercising the discretion. But whether that was so or not, it could not be taken in this case that these trustees ever did divest themselves of the power. It was enough to consider what it was that was settled on the son's marriage. He purported to convey only the interest which he himself had under his father's will; but that must have been taken as subject to the power of the trustees still to exercise their discretion upon his conduct when it became necessary to do so. This power, therefore, must have been considered by all parties as still existing as a contingency, and nothing that was done excluded the trustees from exercising the power when the son should attain twenty-five.
Lord Chelmsford and Lord Kingsdown concurred.
STRANG v. STEWART.- Feb. 15.
Property-Murch-Sheriff. In an action of declarator at the instance of the proprietor of one of two farms, which had formerly been parts of one estate, against the proprietor
of the other, it was held in the Court of Session that the hedge and ditch separating them were not common property, that they did not together form a march fence between the properties, and that the regulation of the march fence belonged to the Sheriff. The pursuer appealed, maintaining that the hedge and ditch together formed the march.
The Lord Chancellor (Cranworth) said — The simple question was whether the interlocutor of the Second Division ought or ought not to be supported. Now the appellant, in his summons, seeks to have it declared that the hedge, together with the ditch, formed together the march fence, and was the common property of the appellant and respondent. That was what the appellant was bound to make out. By the law of Scotland it appeared that the Sheriff had jurisdiction, if there was no adequate boundary between two adjoining properties, to compel the owners to make one suitable to the circumstances, and to keep it in repair. That was a march fence. It was part of the law of Scotland at the same time, however, that if a þoundary had formerly served as a division of fields when belonging to the same owner, then, after the fields on one side had been sold to a third party, it might be agreed to be treated as a march fence between the estates thus separated. That may be done by express agreement, or, if there is no express agreement, then if the parties had acted in such a way with reference to the boundary, that one may imply such an agreement, it would come to the same thing. Now, the state of the case is this : There was a hedge to the north, and a ditch to the south. The owner to whom the fields on both sides originally belonged sold the property on the north side to one Kennedy, who was now represented by the appellant; and afterwards he sold the property on the south side to the predecessors of the respondent. Since that date, the ditch had never been touched by the parties, but had been allowed to be choked up. The hedge itself had also gone to decay, and the cattle of both parties occasionally strayed through it. But during all that time it fully appeared that the cattle on both sides fed up to the roots of the hedge. The ditch was lost sight of altogether. Now, what the appellant is bound to establish is, that what was not originally a march fence became so by reason of the property on both sides being severed and sold to different parties. But there is a total absence of evidence to show that the parties so treated the subject. There was the very slightest evidence possible of some occasional repairs being done to the hedge. That may be doubtful so far as regards the hedge being treated as a boundary. But, as to the ditch, there was not a shadow of evidence that it was ever cleared out at the part expense of the parties, or was ever treated as the march fence or part of it. That being so, the interlocutor of the Court of Session must be affirmed.
Lord Chelmsford concurred.
Lord Kingsdown concurred, and said that the effect would be that the cause would go back to the Sheriff
, who would have jurisdiction to decide what repairs should be made on the hedge, but the question of the ditch would be taken entirely out of bis jurisdiction.
Affirmed, with costs.
COURT OF SESSION.
Arrestments—Heritable and Moveable. The respondent brought an action against a Mr Learmont for payment of a debt, and arrested on the dependence, in the hands of Mr Learmont's father's trustees, on the supposition that they held funds belonging to him. Decree in absence was pronounced in this action. Thereafter, Shearer brought an action of furthcoming against the trustees, in which decree in absence also passed, and on which a charge was given. The trustees then brought the present suspension of that charge, on the ground, inter alia, that they had no funds in their hands belonging to Learmont. On inquiry it appeared that there were no moveable funds in their hands belonging to him, but that he was interested in an heritable estate conveyed to them by his father's trust-deed.
The Court (affirming the Lord Ordinary Ormidale's interlocutor) suspended the charge complained of, on the ground that, as the trust-deed contained neither directions nor power to sell the heritage, and there was no evidence that the circumstances of the estate made it necessary to do so, the jus crediti of Mr Learmont under the deed was heritable, and therefore not capable of being arrested.
Hodgson And Son v. Donn.—March 3.
Sale-Contract of. The present action was brought in order to enforce payment of the price of ten tons of turnip manure alleged to have been sold and delivered by the pursuers to the defender in May 1864, at the price of £7, 5s per ton. It is admitted that the manure was sent by the pursuers to the defender. An invoice of the manure, setting forth that it was bought from the pursuers, is admitted to have been sent and received shortly after. It is further admitted that the manure was taken possession of and used by the defender. The defence was in substance that the manure was not furnished on the credit of the defender, but on the credit of a Mr David Buchan, who is alleged to have been substantially the purchaser from the pursuers. What was said was, that the defender had entered into an arrangement with Buchan, by which he, the defender, was to supply Buchan with potatoes, and Buchan was, on the other hand, to supply the defender with manure. And it was alleged that Buchan bought this manure from the pursuers in order to fulfil his contract with the defender. The result was that Buchan, and not the defender, was the debtor of the pursuers. The action was brought in the Sheriff Court at Jedburgh. The Sheriff-Substitute (Russell) and on appeal the Sheriff-Principal (Rutherfurd) assoilzied the defender. The pursuer advocated, and the Lord Ordinary (Kinloch) recalled the Sheriff's interlocutors, and decerned against the defender. His lordship was of opinion that the defence was not established by the evidence; and that, on the contrary, the pursuers established their allegation of a direct con