ought to be recalled, the only estate being a claim of damages against the petitioning creditor, and the trustee and commissioners being virtually his nominees, and his obvious object being to put an end to the action of damages against himself, without allowing it to be tried for the benefit of all the creditors. The reclaiming note was refused, with expenses.

M. P., SMITH's Trustees.—June 27.
Property-Competition-Equitable Estate.

This action was raised by the trustees of Mungo Smith, who died in 1814, for the purpose of disposing of the residue of his trust estate. By the trust deed the trustees were directed, after realizing, to pay the residue to the truster's son, John Smith. John Smith died in 1830, before the estate had been realized, leaving a general trust disposition and settlement. A claim was lodged in this action by Alexander Grant, for himself and other creditors of John Smith, for the residue, which he maintained had been carried by John Smith's general disposition and settlement to his trustees. This claim was opposed by other claimants who had expede confirmations as executor-creditors of John Smith, who maintained that as John Smith's trustees had not confirmed, the residue remained in the hereditas jacens of his estate in so far as not taken up by them as executorcreditors. On this point, the Lord Ordinary (Kinloch) held that the executor-creditors were preferable, having acquired a jus in re, while the trustees had merely a jus ad rem.

Another question arose between one set of creditors who had confirmed as executor-creditors of John Smith in 1852, and who had valued his estate at L.4000 in the inventory, and another set who had expede a confirmation in 1854 to the excess of said estate above the valuation in the former inventory, amounting to L.18,900. The Lord Ordinary held that the former confirmation was only effectual to the amount of the inventory, and that the second carried the balance. The Court adhered on both points.

GRANT'S TRUSTEES v. GRANT AND OTHERS.-July 2.

Trust-Conditional Institution-Implied Institution.

This process involves the succession of the late Lady Grant of Monymusk, and depends on a variety of deeds. The properties involved are, (1.) the lands of Woodhill, and furniture in the mansion-house of Woodhill; (2.) the house and grounds of Denham Green; and (3.) the general residue of the estate.

Lady Grant died on 15th December 1852. She was survived by three sons and four daughters-another daughter, Mrs Farquharson, having predeceased, leaving children. Of the three sons, the eldest was the then Sir James Grant-the second, Isaac, now Sir Isaac Grant-the youngest, Robert Grant of Tillyfour. Robert Grant died on 15th March 1857, leaving two sons and a daughter. Sir James died on 30th August 1859. Sir Isaac Grant still survives. Sir James and Isaac Grant were both, at their mother's death, in a condition of mental incapacity, from which Sir James never recovered, and in which Sir Isaac still remains.

The lands of Woodhill were conveyed by Lady Grant to trustees by a deed, bearing date 30th April 1844, the conveyance also containing the household furniture, plate, and other effects in the house of Woodhill.

THE COURT OF SESSION.

The purpose of the trust is declared to be, that the house of Woodhill and furniture should be maintained as a residence for Sir James Grant, with whom, by that deed (though this direction was altered by an after codicil), Lady Grant directed that his brother Isaac should reside during their joint lives. She appoints, that after the death of my said son Sir James Grant, whether he survives my son Isaac Grant or not, my trustees above named, or others to be assumed as after mentioned, shall denude themselves of this trust, and execute a disposition and conveyance of the said property of Woodhill, with the house, offices, furniture, and household goods, and others foresaid, to my third son, Robert Grant of Tillyfour, and his heirs.' But this direction is qualified by an after provision, 'that if it shall happen that my said son, Sir James Grant, recovers from his present unfortunate state of derangement, and becomes restored to a perfect sound mind, in that case, the said property of Woodhill, and other effects there, shall be at once conveyed to him, his heirs and assignees, absolutely, and without restriction, with the furniture and other effects therein.' The question now arises, Who has right to Woodhill, and the It is contended, on the part of furniture and effects conveyed with it? Sir Isaac Grant, that, in consequence of Robert Grant predeceasing Sir James Grant, no right was ever vested in Robert Grant; and the property must be held intestate succession of Lady Grant. On the other hand, Mr Archibald Grant, the eldest son of Robert Grant, maintains that under the destination to Robert Grant, and his heirs,' the property now devolves on him as the heir-at-law of Robert Grant.

6

The question as to Denham Green, and that as to the general residue of Lady Grant's estate, arises out of another series of deeds. By a deed of trust, dated the 7th November 1850, Lady Grant conveys the property of Denham Green to certain trustees, for the purpose, in the first instance, of applying the revenue arising from it in keeping the house and grounds of Woodhill in repair, and otherwise promoting the comfort of Sir James Grant; and then of accumulating and investing, upon trust securities, real or personal, as they shall think proper,' whatever of the revenue was not necessary for this object. The deed thereafter proceeds thus :-' And I direct and appoint that, upon the death of the said Sir James Grant without recovering from his present unfortunate state of mind, my said trustees shall immediately hand over to my son, Robert Grant, Esq. of Tillyfour, any balance of the revenue arising from Denham Green, or the price thereof, if sold, which may then be in their hands; and also the whole, or such part of the residue of my other means and estate which they may have received from my executor, the said Robert Grant, together with any accumulations thereof which may, in the above event, be in their hands; and shall also convey and make over to the said Robert Grant the subjects hereby disponed, or, if sold, the price obtained therefor, to be used and disposed of by him as his own absolute property.' There follows a similar provision as in the disposition of Woodhill, that, in the event of Sir James's recovery, the whole should be 'at once handed over or conveyed to him, his heirs and assignees, absolutely and without restriction, to be thenceforth used and enjoyed by him as his absolute property.' A power to sell Denham Green, but no express direction to do so, is contained in this deed-the price to be held on the same trust with the property itself. VOL. VI.-NO. LXVIII. AUGUST 1862.

3 H

By a general disposition and settlement, dated 21st February 1850, Lady Grant appoints her son Robert Grant of Tillyfour her trust disponee of all other heritable estate belonging to her not specially conveyed by the other deeds, and also her sole executor and universal disponee in moveables. These are conveyed for the purposes, and for discharging the legacies or other burdens, to be set forth in any writing under her hand. By another deed of the same date, she leaves annuities to her daughters, Ann and Louisa, and bequeaths sundry other legacies; and with regard to the residue of my means and estate, both heritable and moveable, conveyed by my said general disposition and settlement, I appoint my said executor to hand over the same when realized to my trustees acting under the foresaid conveyance of Denham Green, to be applied by them for the comfortable support of my son, the said Sir James Grant, in manner therein provided, during his life, or, in the event of such residue or part of it not being required for that purpose, to be invested by my said trustees from time to time on such securities, real or personal, as they may consider adequate; and which residue and accumulations thereof shall be disposed of upon the said Sir James Grant's restoration to a sound state of mind, or upon his death, in manner therein directed.'

The true point of controversy is, what Lady Grant must be held to have instructed by this deed with reference to the interests of the parties now in the field. It is pleaded on behalf of Sir Isaac Grant, that the right given to Robert Grant, and which is given to him in this case without mention of heirs, must be held to have never vested, in consequence of the predecease of Sir James, and that both Denham Green and the residue are intestate succession of Lady Grant. On the other hand, it is pleaded on the part of the children of Robert Grant, that the right to both these subjects must be held to have passed to them, by application of (the condition si sine liberis decesserit. A subordinate question is raised by these children amongst themselves, how, in that event, the property is to be held distributable.

Lord Ordinary Kinloch held that the intention was that Woodhill, the furniture, Denham Green, and the residue should go to Robert Grant's children, the heritage to his eldest son, and the executory to his other children; and the Court adhered, Lord Curriehill dissenting as to Denham Green, and holding that the doctrine si sine liberis did not apply.

EDINBURGH AND LEITH GLASS COMPANY V. THE NORTH BRITISH RAILWAY COMPANY.-July 5.

Lands Clauses Act-Intersectional Damage.

This was an action at the instance of the Edinburgh and Leith Glass Company for the recovery of L.3300, being the amount of compensation claimed by them under the 68th section of the North British Railway Consolidation Act, 1858, conform to notice given in writing to the defenders on 18th October 1860. By the section of the statute the pursuers are entitled to compensation from the defenders for such loss, damage, or inconvenience (if any) as they may sustain by reason of their being deprived by the passing of this Act of any rights or privileges secured to them under any contract of agreement now in force, and binding on the Company, or to which they may be otherwise entitled;' and such com

pensation is to be settled in the manner provided by the Lands Clauses Act for the settlement of cases of disputed compensation. The Glass Company accordingly served on the Railway Company a notice, stating that they had been deprived of all access from the north to their property situated near the Old Leith Harbour, and of the rights and privileges secured to them under a contract or agreement entered into between them and the proprietors of the Leith branch of the Edinburgh and Dalkeith Railway, dated 22d and 30th August 1836, and recorded 5th September 1836: And whereas the said Edinburgh and Leith Glass Company had sustained great loss, damage, and inconvenience in consequence of being deprived of access as aforesaid, and of the rights and privileges secured to them under the said contract or agreement: Now therefore, we, the Edinburgh and Leith Glass Company, do hereby, in pursuance of the authority of the said Act, and the Acts therewith incorporated, give you, the said North British Railway Company, notice, that we claim from you the sum of L.3300, as compensation for the loss, damage, and inconvenience sustained by the said Edinburgh and Leith Glass Company, by reason of being deprived of access as aforesaid, and of their rights and privileges under the said contract or agreement: And further, take notice that unless you are willing to pay to us the said sum of L.3300, it is our desire to have the amount of compensation due to us in manner foresaid determined by a jury.' The Railway Company not having applied to the Sheriff within twenty-one days after service of the notice to summon a jury for settling the pursuers' claim, the latter maintained that they were entitled to decree for the sum claimed. The defenders pleaded: No compensation whatever being due by the defenders to the pursuers, the pursuers' notice and claim was incompetent, and the defenders could not be called upon to summon a jury under the Lands Clauses Consolidation (Scotland) Act, 1845. In particular, the pursuers not having sustained any loss, damage, or inconvenience whatever, and not having been deprived of any rights or privileges secured to the pursuers under any contract or agreement in force and binding on the defenders or otherwise, the pursuers' claim was wholly unwarranted, and no jury could be competently called to fix the amount thereof.' The Lord Ordinary dismissed the action, holding that the notice of claim libelled, given by the pursuers to the defenders, does not set forth in a proper and sufficient manner any just or relevant ground upon which the defenders could be required to make compensation to the pursuers in terms of the North British Consolidation Act, 1858, referred to, and that on that footing the defenders were not bound to take proceedings upon the said notice of claim, and are not now liable to pay to the pursuers the amount of compensation claimed by them.' The pursuers reclaimed, and the Court were of opinion that the claim made by them was neither well made nor well founded in law. Their Lordships, therefore, assoilzied the defenders, with expenses.

CAUTION FOR JUDICIAL FACTOR.-July 8.

Judicial Factor-Caution.

William Steven, accountant, Dundee, was appointed, on the petition of Mrs Keating and others, judicial factor on the estate of the late Daniel Collins. He proposed a cautioner, who was rejected. He now proposes a bond of caution of the British Guarantee Association. It was argued

that such a bond could be received under cases decided under the Pupils' Protection Act, 12 & 13 Vict., cap. 51, sec. 27, which allows, upon cause shown, caution to be found to a specified amount. The Court held that the Pupils' Protection Act did not apply, and that under the Act of Sederunt, 13th February 1730, they had no power to limit the amount of caution, and that a bond of the British Guarantee Association would not be sufficient.

ANDERSON v. ADAM AND ANDERSON.-July 8.

Accounting-Diligence.

This was an action of count and reckoning at the instance of William James Anderson, formerly of Techmuiry, in Aberdeenshire, against Messrs Adam and Auderson, advocates in Aberdeen, concluding that those gentlemen should be ordained to produce a full and particular account of their intromissions as trustees for the pursuer, under a trust disposition and conveyance granted by him; and also as his factor and law agents from 1837 to the present date. Mr W. J. Anderson was a partner of the firm of Arbuthnot and Anderson, of Peterhead; and as such, and individually, it was said, had obtained very large advances from the Edinburgh and Glasgow Bank. This resulted in proceedings at the instance of the bank, in which they obtained judgment against Arbuthnot and Anderson, on the decree in which they used arrestments in the hands of Messrs Adam and Anderson, as individuals, as trustees or agents, or any manner of way, for L.40,000. Arbuthnot and Anderson had also been mixed up in transactions with the North of Scotland Bank, and had conveyed to that bank some of their estates in security of advances. The debt due to the Edinburgh and Glasgow Bank led to a trust conveyance by Arbuthnot and Anderson in favour of trustees for that bank, and subsequently to a transaction between that bank and the North of Scotland Bank and conveyance, whereby the Edinburgh and Glasgow Bank, with consent and concurrence of Mr W. J. Anderson, as a partner of Arbuthnot and Anderson, and as an individual, conveyed over to the North of Scotland Bank the whole reversionary interest in the pursuer's estate, covered by the trust conveyance in favour of the Edinburgh and Glasgow Bank, or by the arrestments in the hands of the defenders, with all right to call them to account. Such accounting, it was said, afterwards took place with the North of Scotland Bank as assignees of the Edinburgh and Glasgow Bank and the pursuer, and the balance on that accounting was paid over to the North of Scotland Bank, who granted a discharge to the defenders of their whole actings and intromissions as trustees appointed by the pursuers, and of all sums which might be due by them, or either of them, to the North of Scotland Bank, or the Edinburgh and Glasgow Bank, or to Arbuthnot and Anderson, or to the pursuer under the trust, or other matters or transactions, or under and in virtue of the arrestments, and all right competent to me (the manager of the North of Scotland Bank), or to any of the parties before named, to call the said Adam and Anderson, and William Adam and Alexander Anderson, to account.' The defenders in consequence pleaded-1st, That the pursuer had no title to sue; 2d, That they had accounted for their intromissions to the pursuer's assignees; 3d, That