ture, relationship by affinity is for the purposes HOLDER-RIGHT TO COMPEL FIRST BONDHOLDER of the Act equivalent to relationship by consanTO DISCHARGE.-Adair & Thorburn, Stranraer, guinity. The first of these points is scarcely were proprietors of certain heritable subjects in disputable; nor is it disputable that it involves, that town, over which they granted (1) a bond among other things, that marriage between an and disposition in security for £1000 in June uncle and niece consanguineous is unlawful. But 1877, now held by the defender; (2) a bond and the second point is, in my opinion, equally settled. disposition in security for £400 in December The Act itself makes express reference to relation- 1877, now held by the pursuer; and (3) a further ship by affinity; the institutional writers are bond, of which particulars were not given. The agreed that, in a question of capacity to marry, the firm of Adair & Thorburn, and the individual rule is that consanguinity and affinity are on the partners thereof, were sequestrated in August same footing; and that rule was the basis of the 1885; but the trustee in the sequestration did judgment in the case of Fenton v. Livingstone, not take up the property, as there was no prospect which, although it was pronounced ex parte, was of any reversion after meeting the bonds. The unquestionably a well-considered judgment. As, pursuer, as second bondholder, gave the usual therefore, it cannot be disputed that a marriage statutory premonition, and on 10th August 1894 with a niece consanguineous is unlawful, the same exposed the property to sale by public roup, under result must follow when the marriage is with a the powers contained in his bond. The property niece by affinity, unless-what is not suggested was sold for £1172. On the same day he made there is some exception either in the statute or in premonition to the defender, as first bondholder, Scripture applicable to that particular case. I may that payment would be made to him of the sum add that, in this case, there is no room for any such of £1000, with interest, at Martinmas 1894. The argument as that which was considered but rejected defender refused to take payment of the amount in Fenton v. Livingstone, viz., that the general rule due under his bond, and the present action was did not apply to the case of a marriage with a brought to compel him to take payment and to deceased wife's sister, by reason of the peculiar discharge the bond. Held that the defender must terms of the 18th verse of the 18th chapter of be assoilzied, with expenses. Lord Stormonth Leviticus. I may also add that we are not here Darling.-The real question was whether the called upon to decide anything as to the construc- pursuer, as second bondholder, could compel the tion of the penal statute of 1567, cap. 14. That first bondholder to discharge his bond, and he was statute is not expressed in the same terms as the of opinion that he could not. It might be difficult civil statute of the same year, and has a different to see what the defender's precise interest was to object, and may possibly fall to be construed on resist this demand, because most bondholders different principles. In regard to the plea which would probably be quite satisfied to receive payis stated for the child of the marriage, to the effect ment in full where the margin was so small as it that he must be held to be legitimate by reason of was here. The defender said that he was satisfied the good faith of his parents, I do not think it is with his investment, and did not wish it disturbed; desirable to say more than that, in my opinion, but whatever was his motive he demanded a judg the averments upon which the plea is based are ment on the legal question, and was entitled to it. plainly irrelevant and insufficient. The question seemed to his lordship to be concluded by the opinions expressed in the case of Nicholson's Trustees v. M'Laughlin (19 R. 49), which decided that, when there were two pari passu bondholders, either might bring the security sub Lord Kyllachy and Lord Stormonth Darling concurred in Lord Low's opinion. Their lordships of the Second Division gave no opinion on the case, but simply stated that they agreed with the opinions of all their lordships.-jects to sale without consent of the other, but the MP., PURVES' TRUSTEE v. MRS RAMSAY OR PURVES AND OTHERS; 16th March 1895. security of the other would remain unaffected Counsel for the Pursuer, Wilson; Agent, Peter Convener of Foreign Missions, the Convener of Home Missions, the Zenana Mission, and others. Mrs Beckett died on 26th March 1894, leaving movable estate amounting to about £12,000, together with heritable estate of small value. She left two undated writings. In one of these, the testatrix, after bequeathing several legacies, said: "The residue to go to my two sisters, and after their death Robert Harold Beckett £500; £1000 to the funds of the High Church, if it could be made secure that if the Church was disestablished they could not take it, £100 more, the interest to go to keep my husband's and my father's graves in good order; £100 to the Nursing Association; the residue to go to the schemes of the Church of Scotland, the Home and Foreign Missions, that is, after my sisters' deaths, all free of legacy-duty." The other writing concluded in terms very similar. The question raised was whether the pursuers had a liferent only of the residue of the testatrix's estate, or held it in fee, and they sought to have it declared that the legacies purporting by the writings to be payable to the defenders upon their death had lapsed in consequence of their having survived the testatrix. The defenders, who main tained that the right of the pursuers was limited to a liferent, averred that it was the intention of the testatrix to allow to her sisters the enjoyment of the income of the residue during their lives; and as they were both childless, and about 60 years of age, the testatrix had provided for the division of the funds in accordance with her wishes after their decease. Held that, on a sound construction of the holograph writings libelled, the pursuers were entitled to the residue of the estate of the deceased Mrs Beckett as their own absolute property in fee, but that there was a valid substitution in favour of the defenders and others therein mentioned defeasible at the will of the pursuers. To that extent, the Lord Ordinary found in terms of the conclusions of the summons, and quoad ultra assoilzied the defenders from the remainder of the conclusions, and found no expenses due to or by either party. Lord Stormonth Darling.-The case turned on the construction of two holograph wills left by the late Mrs Beckett, who died at Kilmarnock on 26th March 1894. They were in almost identical terms, and, in so far as they differed, his lordship apprehended that both must receive effect, for it was impossible to say which was executed last, and neither contained any clause of revocation. They were both in the form of direct bequest, and there was no nomination of executors. The pursuers, who were the only surviving sisters and next-of-kin of the testatrix, had been decerned her executrices-dative. After leaving certain legacies, the testatrix used these words: "The residue to go to my two sisters," and then she provided for more legacies, and the residue to the schemes of the Church of Scotland, but twice over she declared that these were only to "go" after her sisters' deaths. The defenders, who were the persons in right of these latter legacies, maintained that the true effect of the will was to confer only a liferent of the residue on the pursuers, the fee being in the defenders themselves. His lordship could not assent to that view. The words of gift were, undoubtedly, apt to confer a fee. Standing by themselves, they could mean nothing else. The context did not seem to him to derogate from the right so given. There were no words indicating that the pursuers were only to receive the yearly produce of the residue. In short, there was nothing to suggest a liferent, except that there was a destination over. It was urged by the defenders that, as the pursuers were childless and somewhat advanced in years, it was the intention of the testatrix to allow them merely the income of the residue during their lives, and that this construction afforded an easy explanation of the whole settlement. He agreed that such a method of disposing of her estate would have been a perfectly intelligible and workable one if the testatrix had adopted it, but it seemed to him she had not done so, either expressly or by necessary implication. While, therefore, he agreed with the pursuers' main conclusion, he thought they went too far when they contended that the legacies payable to the defenders had lapsed altogether. On the contrary, he thought there was a valid substitution in favour of the defenders, which would take effect if not evacuated by the pursuers. There was, no doubt, a certain presumption against substitution in movables, and this succession was mainly of that character. But it was a presumption which would always yield to such words as occurred here, expressly declaring that the gift was to take effect after the death of the institute. the pursuers had carried their conclusions too far, he thought the case was not one for expenses.MITCHELL AND ANOTHER. GENERAL ASSEMBLY OF THE CHURCH OF SCOTLAND AND OTHERS ; 24th April 1895. As Counsel for Pursuers, Burnet; Agents, Carmichael & Millar, W.S.-Counsel for Defenders, C. N. Johnston; Agents, Menzies, Black & Menzies, W.S. For A. D., J. C. Supplement to "Scots Law Times," 11th May 1995.] INDEX OF CASES ACCORDING TO NAMES OF PARTIES. Note. The figures refer to the number of the Case, and not to the number of the Page. L signifies House of Lords Decision. O signifies Outer House or Bill Chamber Decision. S signifies Sheriff Court Decision. J signifies Justiciary Court Decision. A. v. B., O 23, 381. A. B., Petitioner, O 304. A., B., and C., Procurator-Fiscal, Aberdeen v., S 271. Aberdeen Procurator-Fiscal v. A., B., and C., S 271. Abernethy, Adamson v., O 508. Abinet v. Fleck, O 21. Adair, Moodie v., S 119. Anderson & Co. v. Macintosh, O 326, 445. Anderson and others v. Gardiner, Sillars and others, 341. Annan Dist. Com. of Dumfries County Council, Thomson Antrim Iron Ore Co., Ltd., v. Urquhart, Lindsay & Co., 141. Armstrong v. Thompson, O 75, 525. Arthur v. Lindsay and others, O 499, 531, 532. Adair's Judicial Factor (Rankin) v. Clyde Navigation Arthur v. Lord Advocate, O 373, 490. Trs. and Connell's Trs., 343. Adair's Trustee v. Adair's Factor, O 593. Adams v. Glasgow & S. W. Ry. Co., 262. Addie & Sons, Robt., Collieries, Ltd., M'Garrot and others Advocate, H.M., v. Macfarlane and others (Dunlop's Trustees), L 91. Advocate, H. M., v. Archibald MacRae, J 62. Advocate, Lord, Arthur v., O 373, 490. Advocate, Lord, Duke of Fife v., O 507. Advocate, Lord, v. Dunlop's Trustees, O 394. Advocate, Lord, Gwydyr v., O 269. Assessor, Coltness Iron Co. v., L.V.A.C. 515. Assessor v. T. Robertson Aikman, L.V.A.C. 514. Assets Company, Ltd., Macrae v., 206. Auchincloss v. Duncan, 208. Auditor of the Court of Session, Petition, 140. Ayr Harbour Trs. and others v. Assessor for Newton-on- Ayr, Northern District Committee of the County Council Advocate, Lord, v. Mrs Jameson M'Culloch and Husband Ayrshire Foundry Co., Cunningham v., 50. Baird, Berkley v., O 320, 487. Ballantine, L. H., Assessor v., L.V.A.C. 562. Ballingall, A. H. and others, The Hon. Sir Donald Alex. Smith, K. C.M.G., v. O 497. Ballingall, Mitchell v., S 215. Bannatyne and others, Tait's Trustees v., O 186. Barlas, Strachan v., O 54. Barnett and Mandatory, Petition, 387. Baxter, Edmund, Petition, 140. Bayne, Mrs Emma Duckworth or, and others, Special Bonar, Elizabeth Gavan or, v. J. & G. Thomson, Ltd., Cassels and others, Mrs Houston or, v. Houston's Trustees, 122. Charlton v. Charlton and another, O 57. Charlton and others v. Grierson & Scott, 342. Christie, Shirress v., $ 39. Breadalbane, The Marquess of, v. West Highland Ry. Christie, Whittall and Mandatory v., 313. Co., O 251, 447. Bruce and Milne, Glen v., O 479. Bryce v. Norman and others, 467. Bryson v. Lawrie, O 521. Christie's Trs. v. Christie, O 277. Church of Scotland, General Assembly of, Mitchell and City Real Estate Trust Co. and others v. Campebll and Clark and another, Gibson v., O 510. Clarkson and others v. R. L. Stuart, P.F. for Midlothian, J 241. Clay, Black v., L 117. Clyde Navigation Trs. and Connell's Trs., Rankin (Adair's Clyne, James, Petition, 42. Coles and others, Tulloh's Trustees v., O 405. Bryson and M'Intosh v. The Caledonian Railway Co., O Colquhoun v. Mackenzie, 260. 101. Buccleuch, Duke of, v. Gilmerton Coal Co., O 18. Burnett, Mrs Alice Stuart or, v. Burnett's Trs., 159. Burnley Steamship Co. v. Commissioners for Lower Burns, G. & J., Columbia Steam Navigation Co. v., 442. Butchart, Watson v., O 509. Byng and another . Campbell and another, 107. CADENHEAD, Smart v., J 240. Cairns and another, M'Gaw's Trustee v., O 264. Caledonian Canal, Commissioners of, v. County Council Caledonian Ry. Co., Brahan v., O 543. Caledonian Ry. Co. and others, Jeffray v., O 471. Caledonian Ry. Co. and J. Nimmo & Co. v. The N. B. Callander School Board and George Watt, Bayne and Callander and Trossachs Hydropathic Co. and others, Calver v. Howard, Baker & Co., 231. Coltness Iron Co. v. Assessor, L.V.A.C. 515. Columbia Steam Navigation Co. v. G. & J. Burns, 442. Conolly and others v. Young's Paraffin Light and Mineral Cook's Trustees, The Governors of Heriot's Trust v., O Corke v. Fry, 529. Cornwall, Hope Johnstone v., O 83, 448. Costadasi v. Boyes, J 200. Coull's Trustee, Craig v., O 484. Coutts' Factor . Securities Insurance Co., Ltd., O 79, Cowan, Mrs Agnes Stenhouse Steel or Neilson or, Watson Cowan & Sons, Limited, v. Assessor for the Lothians, Cowan v. George Strachan and J. Thomson, S 221. Cowan, Watson v., O 345. Culcreuch Trustees v. Sir James Home and others, O 192. Dunlop's Trustees, Lord Advocate v., Cunningham v. Ayrshire Foundry Co., 50. O 394. EASTERN Cemetery Co., Ltd., Welsh v., 46. Cunninghame and another . Securities Insurance Co., Eccles, Malcolm v., R.Á.C. 329. Ltd., O 4, 588. Currie v. Allan, 164. Currie's Executors v. Dinwiddie and others, 138. DAHLBERG . The Greenock Harbour Trustees, O 87. 552. Dalgleish and others v. Dodds, R.A. C. 376. Eddington, Petitioner, 533. Edinburgh, Magistrates of, Hogg v., 146. Edinburgh, Magistrates of, v. Thomson, S 584. Edinburgh Northern Tramways Co. v. Mann & Beattie, 121. Elder's Trs. v. Mrs Margaret Blair or Elder and others, Elderslie Steamship Co., Ltd., Petition, 492. Trust Elgin, Locality of, Duke of Fife v. Lord Advocate, O 507. and Mortgage Insurance Corporation, O 90. Davidson and others (Davidson's Trs.) v. The Caledonian Davies or Davidson v. Henderson & Co., 539. Dechan, Dempster and others, Petitioners, v., S 156. Dempster v. Ferrier, S 413. Dempster and others, Petitioners, v. Dechan, S 156. Eliott v. Purdom (Sir William Eliott's Trustee), 137. Esslemont, Mary Smith or, Glasgow District Subway Co. Esslemont and another (Webster's Trustees), Kissack v., FAIRHOLME, Swan & Sons v., O 80. Falla's Trustees. The Assets Co. v., O 302, 360. Dennistoun and another, Tennant's Trustees v., O 88, Ferguson v. Rodger, S 580. 158. Devine v. County Council of Linlithgow, 538. Dewar and another (Durie's Trs.) v. Aytoun, O 130, 258. Dickson's Trustees, John, and others, Petition, O 59. Dodds, Dalgleish and others v., R.A.C. 376. Dog, Poultry and Pigeon Insurance Co., Ltd., Bidston v., Dombrowizky v. Dombrowizky, O 470, 502. Douglas, Reid & Co., Tr. in Sequestration of Stiven v., 566. Dowell, Mrs Brodie v., O 2. Dowie, Mrs Amelia V. Hagart or, Petitioner, 204. Drummond's Factor, Petitioner, 124. Drumsheugh Baths Co., Governors of Heriot's Trust v., Dryburgh v. Dryburgh, O 193. Fernie v. Bell and another, O 303. Fife County Council v. Leven Police Commissioners, O Fife, Duke of, v. Lord Advocate, O 507. Financier, Ltd., and others, The Hong Kong Fire Insurance Finlayson v. Matheson, S 214. Fisher, Mrs Margaret Brown, Petitioner, 207. Fletcher and others (Currie's Executors) v. Dinwiddie Forbes, Commissioners of Peterhead v., O 469. Forbes, R.S. (Surveyor of Taxes) v. The Standard Life Forrester and another (Forrester's Trustees) and others, France, Murdoch v., O 316. Fraser's Trustees and others, Special Case, 29. Fullarton and others, Rainie v., 0 411. Fulton's Trustees, Hardie v., O 519. Furnace Gases Co., Ltd., and Shotts Iron Co. v. Assessor Fyfe v. Binnie, S 26. Duckworth, Mrs Emma Bayne or, and others, Special Fyfe, Gibson v., J 579. |