"It is said that this provision is merely a substitution, and that not being fortified with clauses prohibitory, it creates no limit on the right of the parties primarily favoured. But we do not think it is a substitution, or even a direction to constitute a substitution. It is, by its form, a provision and declaration, forming a condition of, and limiting the grant, or rather it is the direction to the trustees, in reference to the grant, to which we think it is impossible to apply the rules applicable to mere substitutions.

"Next, it is said that it is a clause of return; and though there scarcely seems to be any dispute that general clauses of return in gratuitous grants do constitute a limitation on the right of the grantee to a certain extent, yet it is observed, that in this case, the return being to the heirs of the granter, not to the granter himself, it cannot create any limitation against even gratuitous alterations, to establish which, the case of Wauchope, 22d December 1752, (Morr. 4404) is referred to. We think that case not sufficient to support the doctrine. For in that case the clause was contained in the bonds of provision granted in implement of a contract of marriage (so found); and therefore it was incompetent to insert in them any clause that in effect went beyond a mere substitution, or to give such effect to such a clause if inserted. It is impossible, therefore, to rely on it as establishing any general doctrine of the kind alleged.

66

Again, it is observed that when a grant is to heirs alioqui successuri, a clause of return has no force beyond a substitution; and the case of the Marquis of Clydesdale, 26th January 1726, (Morr. 1262), is referred to on this head. We doubt also the sufficiency of this decision to support the doctrine rested on it. For in that case, the party contending for the benefit of the clause of return, was not the heir to whom the return was provided, but a prior heir-male, called only as a substitute, and in whose favour the return was not conditioned.

"The answer, however, which appears to us to be the true one on this point is, that the clause here is not a clause of return, but a clause of direction to trustees. Now, though it has been said that clauses of return are to be strictly construed, yet we are aware of no authority for applying such strict interpretation to clauses of directions to trustees, particularly where provided with sufficient powers to execute the trust,' and general instructions to settle and secure the estate' according to these directions. Such trustees, we think, have no duty but to find out fairly the true meaning of the truster; and when found out, to give it effect, in the form that is best fitted for that purpose; but at any rate in some form, so that it may not be defeated. In whatever way, therefore, the present trustees ought to fulfil their duty, we do not think they can comply with the demand of Alexander Duncan Tait, because that is a demand not agreeable to the true intention of the truster.

"It has been observed by the Lord Ordinary, that this interpretation would deprive the parties primarily favoured of all use of the trust-funds for a long time, because their right to the rents and profits of these funds is not separable from their right to the capital. In this we do not agree. It is the residue, i. e. the capital of the residue of the trust-funds only to which the limiting conditions of the trust-directions apply. There is no direction of that kind having application to the rents and profits, or from which it can be inferred that the trustees were to secure these, so that they should remain subject to the rights of any person in any contingency. We see no words to prevent the paying or assigning over of these annually as they arise, after the death of the truster's wife, Mary Simson or Duncan. They are payable or assignable over immediately, just as the capital also might have been, if there had followed no conditions referable to it, by which such immediate payment or assignation was restrained. The separation is effected by the application of the limiting conditions to the capital, and the non-application of them to the rents and profits accruing annually. On the whole, then, we remain unable to think that the claim of Alexander Duncan Tait ought to be sustained."

At advising,

Lord Justice- Clerk.-I concur with the majority of the con

sulted Judges. We are bound to give effect to the intention of the testator; and in doing so, we must consider the whole deed, and put the most rational construction upon its provisions. It is most important to observe, that when the truster gives directions as to the payment of the residue, he declares that it is to be made" subject to the annuities." This is inconsistent with an intention of creating a permanent trust. There is nothing in the deed to indicate such an intention, or that the truster wished to form a tailzied succession. On the contrary, the two grandchildren are evidently the persona predilectæ.

Lord Glenlee.-Since the death of Mrs Duncan and the majority of the defenders, the proper period has come when the trust must be held as terminated. But the trustees should just dispone in the precise terms of the truster's deed, leaving any question as to the effect of the substitution still entire.

Lords Meadowbank and Medwyn concurred with the minority of the consulted Judges.

Their Lordships pronounced the following interlo

cutor:

66

Find that the trust created by the deceased Alexander Duncan, by his trust-disposition founded on, has come to an end and is now expired: Find that the pursuers are only liable in once and single payment, and that they are bound to pay over the residue and remainder of the said trust-estate, and the rents, issues, and profits thereof, equally to the defenders and claimants, Lady Duncan and Mr Tait, without any provisions or restrictions whatever; and, quoad ultra, remit the process to the Lord Ordinary."

Lord Ordinary, Jeffrey.-Act. M'Neill; John Yule, W.S., Pursuers' Agent.-Alt. for Lady Duncan, Solicitor-General (Rutherfurd), Miller; John Yule, W.S., Agent.—For Lieutenant Tait, Dean of Faculty (Hope), Robertson; Robert Haldane, W.S., Agent.—[J.D.M.]

11th July 1837.

SECOND DIVISION.-(J.D.M.)

No. 345.-GENERAL THE HONOURABLE SIR ALEXANDER HOPE, Pursuer, v. THOMAS SPEARS, Defender.

Teinds-Stipend-Augmentation-Superior and Vassal-Relief-Clause- Where a proprietor of lands, who had also an heritable right to the teinds thereof, feued out the lands but not the teinds, and in the clause of warrandice bound himself to free and relieve the vassals and their successors from "all cess," &c., "ministers' and schoolmasters' stipends and salaries,' "teinds and casualties payable furth of the said lands to my superiors thereof, and that of all terms bygone, present, and to come"-Held by the majority of the whole Court, that this clause of relief did not extend to the minister's stipend allocated on the lands for the first time, and more than a century after the date of the grant.

By a disposition, dated the 4th of February 1729, Sir Thomas Bruce Hope of Kinross and Craighall, in consideration of the price of £129,108 Scots, conveyed to Charles Earl of Hopetoun, the lands and baronies of Craighall, comprehending, inter alia, the su periority of the lands and barony of Kinninmont, with the teinds of the same, with the lands of Baldonie, mill and mill-lands thereof. The pursuer is now in right of the estate of Craighall, as heir of entail, under an entail executed by John Earl of Hopetoun, son of Earl Charles.

Previous to the sale to the Earl of Hopetoun, the lands of Kinninmont had been feued out by Sir Thomas Bruce Hope to Thomas and Robert Pitcairn, in equal halves, by two feu-charters, dated the 18th of April 1721, both of which are precisely in the same tams.

These charters contained no conveyance of teinds, but the following clause of warrandice and of relief occurred in each of them:

"And lastly, I, the said Sir Thomas Bruce Hope, under the reservations@ mentioned, and burden of the yearly feu-duty and services above written, and others foresaid, bind and oblige ine, my heirs and successors, to warrant the lands, mill, and mill-lands and pertinents foresaid, and right of feu thereto above specified, to be valid at all hands, as law will; and also to free and relieve the said Thomas Pitcairn, and his foresaids, from all cess, out-reeks of horse and foot militia, and other public burdens whatsoever, ministers' and schoolmasters' stipend and salary (except the sum of seven pounds three shillings four pennies Scots yearly, payable by the said Thomas Pitcairn and his foresaids, to the schoolmaster of Ceres, beyond the feu-duty @ mentioned), teinds and casualties payable furth of the said lands, to my superiors thereof, and that of all years and terms bygone, present, and to come.'

"

The defender is now proprietor of both halves of the lands of Kinninmont.

The above clause of relief was never inserted in any of the feudal investitures in favour of the Pitcairns or their successors.

It was averred by the defender that the feu-duty at which the lands were set in 1721 was their full agricultural value at that time.

No minister's stipend was then payable from the lands, and it was first demanded from the defender in 1828. He having thereupon withheld payment of the feu-duty on that and other grounds, the present action was brought by the pursuer for the payment thereof, and for having it found and declared that the defender, as vassal in said subjects, has no right of relief, or any other right or claim whatsoever against the pursuer, as his superior aforesaid, for or on account of the minister's stipend payable out of the teinds of the foresaid town and lands of Kinninmont, mill and mill-lands of Baldonie, and others, or of any augmentation or augmentations thereof, which may already have been or may hereafter be granted; but that the said stipend and augmentations thereof are exclusively payable by the said defender, his heirs and successors in said town and lands, mill and mill-lands, and others, now and in all time coming, without any claim of relief, retention, compensation, or other claim whatsoever against the pursuer, and the heirs succeeding to him in the said lands and barony of Craighall, as superiors of the said town and lands of Kiuninmont, mill and mill-lands of Baldonie, and others, saving and excepting always the right of the said defender, and his foresaids, to retain the said stipend and augmentations thereof out of the teinds of the said town and lands, mill and mill-lands, and others, in any action which may be brought against him or them, by the pursuer or his foresaids, for recovery of the said teinds.

The defender pleaded-1. The pursuer being bound, as the condition of demanding the feu-duty, to relieve the defender of all demands for stipends or teinds exigible from the lands of Kinninmont, he cannot claim the feu-duty without relieving the defender of all stipends and teinds exigible from the lands, and the declaratory conclusions of the summons are therefore groundless and inconsistent with the terms of the original feu-charters, which must regulate the rights of parties: Stewart v. Russell, 3d June 1813; Low v.

Beaton, 31st January 1821. 2. As the feu-duty payable for the lands was their full yearly agricultural value at the date of the original feu-charters, and as no stipend was ever paid by the vassals in these lands prior to 1828, the pursuer, as superior, would, independent of the express obligation to that effect, be obliged to relieve his vassals of any claim for stipend or any similar burden: M'Donald v. Heriot's Hospital, 12th February 1828, affirmed by the House of Lords, 7th April 1830. 3. The defender is entitled to retain the feuduty stipulated in his charters, till the pursuer shall comply with the conditions specified in the feu-charters, on which alone he is entitled to demand the payment of the feu-duty.

"19th December 1835.-The Lord Ordinary appoints the parties to prepare short cases, directing their attention chiefly to the question, Whether by the condition of the superior generally, or by the terms of the clause founded on in the present case, there is an obligation laid on the superior to relieve the vassal of augmentations of minister's stipend, in order that the cause may be reported to the Court; the cases to be lodged by the box-day, and thereafter exchanged and re-lodged by the second sederunt-day in January.

"Note. The Lord Ordinary regrets very much that this cause should have been delayed. After hearing it very fully argued (and he has reconsidered the notes of the able argument brought before him), he thought that, though there were other points involved in it, not perhaps of any great difficulty, there was really no case at all, until it should be determined that the material conveyance imported an effectual warrandice against future augmentations of stipend. The question, whether that obligation passed against the singular successor in the superiority of the lands, is entirely separate. It being known, however, to the Lord Ordinary, that a case extremely analogous, on the question of warrandice, Heriot's Hospital v. Pedie, had been fully prepared for judgment before he ceased to be junior Lord Ordinary, and had been actually disposed of by Lord Jeffrey, on the 12th November 1834, by an interlocutor ordering cases on the question to the First Division, with a note expressive of his own doubt on the point, and as to the conclusiveness of the case of M'Donald, 12th February 1828 (House of Lords, 7th April 1830), the Lord Ordinary thought it but right to delay pronouncing any judgment in this case, in the hope that the parties might be saved the expense and trouble of an unnecessary discussion by the decision in that cause. He finds, however, that nothing has been done in it since that order by Lord Jeffrey. He cannot, therefore, any longer delay putting this cause in order for decision. But it is evident that, being aware that the very same point substantially has been appointed to be laid before the First Division of the Court, and being himself very strongly impressed with the same doubts which are expressed by Lord Jeffrey in regard to the case of M'Donald, he should do very wrong if he were to pronounce any judgment on that question. He may perhaps make a short note on the point, when he sees a written argument. But at present, he should not be inclined to say any more than what is expressed in Lord Jeffrey's note the whole, or at least the part of which applicable to this question, ought to be appended to the cases to be lodged in this cause."

The interlocutor here referred to was pronounced by Lord Jeffrey, in relation to a similar question between Mr James Pedie, W.S., and the Governors of Heriot's Hospital, in the locality of St Cuthbert's. The part of his Lordship's note applicable to this point is as follows:-" But it is on the general question of the possibility of subjecting a superior to payment of stipend, and especially of augmented stipend, without a special and express clause in the feu-charter, that he wishes to see a written argument. The inclination of his own opinion is so strong against such a constructive liability, that he would at once have rejected the claims of the objector, but for the deci

"The cases are ordered with reference to this point only. But if it is thought to save expense to the parties, they may agree to make a concise statement of the other points in the cause, so as to obtain a conclusive judgment at once."

The pursuer pleaded-1. That the original clause of warrandice, considered as a personal obligation, and with reference to its effects against the granter and his heirs, does not infer relief against augmentations. By the words of the clause, the granter binds himself to relieve the feuar of "ministers' and schoolmasters' stipend and salary." Had the clause stopt there, it is perfectly evident that this could not have been held to apply to augmentations. But then the clause goes on as follows: "Teinds and casualties payable furth of the said lands to my superiors thereof, and that of all years and terms bygone, present, and to come." Now, the qualifying words, "payable furth of the said lands to my superiors thereof," must be held as applicable both to "teinds" and "casualties," which makes this a reasonable and ordinary clause of relief, by which the superior undertakes to relieve the vassal of his own obligations to the overlord. At the date of the feucharter, Sir Thomas Bruce Hope was proprietor both of the stock and of the teinds of the lands. He did not, however, feu out the teinds along with the lands; and accordingly the direct clause of warrandice does not apply to the teinds at all, but only to "the lands, mill, and mill-lands and pertinents foresaid.". It is only in the special clause of relief, which is subjoined to the warrandice, that it can be even argued that any obligation was incurred having reference to teinds. The superior is thus supposed, according to the view of the defender, in one and the same deed, to feu the lands, reserving to himself the teinds, and consequently reserving the power to sell or alienate the teinds to singular successors; and yet to bind himself in all time coming to relieve the vassal of any demands that may be made against him in regard to teinds, either by the minister, or by himself or his singular successors in the titularity. It is believed that there have been cases in which a party who had no right to teinds, and who consequently could not feu them out along with the lands, yet bound himself by a peculiar and anomalous clause of relief, substantially to warrant to the vassal a full right to the teinds. But such a stipulation is altogether absurd in a party who has an heritable right to the teinds as well as to the lands, and who, therefore, if he had chosen, might have given the vassal a direct right to the teinds, and a direct warrandice of teinds, as well as of the lands. It seems, therefore, proper to interpret the clause in question, as applying to such teinds, teind-duties, or annuities of teinds, as well as casualties, as payable out of the lands to the granter's superiors. Besides, although the obligation of relief be held not to be restricted by the words that follow, this will not infer an obligation as to future augmentations. For that purpose it is necessary that the charter should contain warrandice in express terms against future sion of the First Division in the case of M'Donald against Heriot's Hospital, 12th February 1828 (F.C.), afterwards affirmed on appeal, 7th April 1830, (4 Wilson and Shaw, 98). In the face of that decision, it seems difficult to reject the claim of Mr Pedie. But the circumstances are not identical, and it may not be too late to reconsider the general question."

were

augmentations, or at least equivalent expressions, which may be explained by a subsequent course of practice to mean the same thing. Accordingly, the Court has found expressions similar to those used in the present case, and even stronger, not sufficient to extend to a warrandice against future augmentations: Colquhoun v. Smollet, 21st January 1798; Mor. Syn. 1808, 1814, p. 761. Plenderleath v. Earl of Tweeddale's Representatives, 31st January 1800; Dict. 16,639. Alexander v. Bruce Dundas, 9th June 1812; Fac. Coll. Petrie v. Lindsay Carnegie, 27th January 1813; Connell on Teinds, 1st edit. II. 479. Earl of Hopetoun's Trustees v. Copland, 8th December 1819; Fac. Coll. Hamilton v. Calder, 13th June 1823; Fac. Coll. In the cases of Low and Cunninghame, referred to by the defender, the granter of the original feu-right had no right to the teinds of the lands which he feued; and having that distinctly in view, he nevertheless undertook to warrant or insure the vassal from all demands upon him in regard to teinds. The case of M'Donald, referred to in the Lord Ordinary's note, is founded on by the defender. But that case was a very special one; and the judgment of the Court, as well as the opinions of the Judges, proceeded entirely upon specialties. In particular, the conduct of the parties was held to afford decisive evidence of their understanding and agreement. The superior had all along paid the stipend due from the lands, and that for a length of time, which could leave no room to doubt what was the true meaning of the parties. The Court accordingly found, "from the terms of the feu-contract, and in respect of the practice of the hospital having all along paid the stipend of the lands of Powderhall, that there is sufficient evidence of the understanding of the parties to that effect." Again, in the case of Sir A. Hope v. Lumsdaine, 26th February 1836, Fac. Coll., as to the lands of North Callange, while it was impossible to make sense of the expressions in the clause, without referring them to future augmentations, the superior had for a long time been in use of paying the stipend. 2. Supposing that the clause of relief were effectual to relieve from future augmentations, it is only a personal obligation: nor does it appear, either in the conveyance from the original superior to Lord Hopetoun, or in any subsequent title of the superior, nor in any renewal of the vassal's right. It is therefore not binding on the pursuer, who is a singular successor of the granter.

The defender adduced the cases of Cunninghame v. Cuthbertson, 27th January 1829, Fac. Coll., and of Low, as materially affecting the import of the previous decisions relied on by the pursuer, and establishing that the clause in dispute in the present case could not be confined to relief of stipend payable at its date, if there had been any, but extended to future augmentations also. The case of M'Donald was likewise referred to as a fortiori to the present, where a feuar who had become bound to pay, in name of feu-duty, what was supposed to be the full agricultural value of the lands feued to him at the date of his feu-contract, was held entitled to claim relief from his superiors of the stipend payable for the lands, although the feu-contract contained no obligation whatever on the part of the

superior to relieve the vassal of stipend, or of any other public burden.

"June 13, 1836.-The Lord Ordinary having considered the revised cases for the parties, makes avizandum with the cause to the Court, and appoints copies of these cases, and of the record, to be put into the boxes of the Lords of the Second Division of the Court, and that within eight days, in order to be reported.

"Note.-The Lord Ordinary will not enter particularly into the argument of these cases. He will only say, that he reports the cause solely on the ground on which Lord Jeffrey reported the case of Pedie v. Heriot's Hospital, viz. the application which is here made of the decision in the case of M'Donald. He is humbly of opinion, 1. That on principle, and according to the authorities, there is not even in the first title of the vassal any obligation of warrandice against future augmentations of stipend; 2. That such an obligation cannot be inferred against a superior, merely from the nature of the feudal title, whatever may have been the value paid for the land: where the teinds are not conveyed, any estimate of the value of the lands supposes them to be taken with their natural burdens, if not expressly excepted: 3. That the attempt to maintain this against a singular successor in the superiority, where no words at all are inserted in the vassal's seisin, as if such an obligation were a natural incident to the feudal tenure, shows in a very strong light the singularly dangerous nature of the plea itself; and 4. That it can make no difference whatever on the legal state of the question, that it arises upon the demand of the superior for payment of his feu-duty. To assume that it does, is to take it for granted that the feu-right is burdened with such a condition, which is the thing to be proved. The Lord Ordinary cannot but regard the case of M'Donald v. Heriot's Hospital, as a case in which the Court proceeded on specialties only. According to the report, the Judges certainly stated the general rule to be otherwise. Lord Wynford's speech in the House of Lords seems also to treat the case as special. But if it had been there supposed that there is a general rule of wider import, the Lord Ordinary would, with all deference, think, that as the judgment was a simple affirmance of a judgment of this Court, the real grounds of it would deserve to be reconsidered in any case not precisely the same in its circumstances." The following unanimous opinion was returned by the consulted Judges:*

"The two points on which we have been consulted are, 1st, Whether an obligation to relieve the vassal from augmentations of stipends was constituted against the original superior; and 2dly, Whether this obligation, if constituted, has been effectually transferred against the pursuer, a singular successor in the superiority?

"On the first of these points, we are of opinion, that no such obligation was originally constituted. It has occasionally been supposed, that there is some discrepancy between the judgments which have been pronounced in the cases that have occurred in this matter. But any such discrepancy has only been in the application of the rule to the special circumstances of particular cases; and the rule itself is quite fixed. It is, that in order to create and leave such a burden on the superior, there must be a distinct warrandice to this effect,-not necessarily by the use of any particular words, but by the use of terms which unequivocally import the obligation. The course of practice by the parties subsequently to the grant, may be referred to in order to explain their understanding of the meaning of its terms; but, one way or other, an unequivocal obligation to relieve the vassal of future augmentations must be established, and no mere implication, or probable conjecture, will suffice.

"Now, on applying this rule to the terms of the grant before us, they do not appear to us to import any such obligation. We need not analyse the words here. It is sufficient to refer to the explanation given of them in the pursuer's case, and to

The Lord President being an heir of entail of the estate of Craighall, did not give any opinion.

say, that we think they can all receive a satisfactory construction without rearing up this burden, which is not one of the natural incidents of such a transaction.

"This being the case, the second point is superseded; for if there was no obligation created, it is unnecessary, or rather impossible, to consider whether it was transferred.'

At advising,

Lord Justice-Clerk. I have some hesitation in concurring with the consulted Judges. I think that there was an intention here to give relief from the minister's stipend.

Lord Glenlee concurred with the consulted Judges. Lord Medwyn.-I have some difficulty. I think that this case is very like that of North Callange.

The Court pronounced the following interlocutor: "The Lords having advised the cause, with the opinions of the consulted Judges, and having considered these opinions, Find that the defender, as vassal in the lands mentioned in the summons, has no claim against the pursuer, as his superior of these lands, for relief of the minister's stipend payable out of the teinds of the same, and to this effect repel the defences, and decern in terms of the declaratory conclusion of the libel; and also decern against the defender for payment of the arrear of feu-duty libelled, with exception of the capons, as to which supersede consideration of the case until the first sederunt day in November next; and also reserve all questions as to expenses, and allows interim extract to go out and be extracted for the arrear of feu-duty hereby decerned for."

Lord Ordinary, Moncreiff.-Act. Dean of Faculty (Hope), H. J. Robertson: James Hope, W.S., Agent.-Alt. More; Walter Cook, W.S., Agent.-J.D.M.]

11th July 1837.

SECOND DIVISION.-(J.D.M.)

No. 346.-WILLIAM FORRESTER, Pursuer, v. ANDREW FORRESTER and OTHERS, Defenders. Proof-Witness-Admissibility-In an action of proving the tenor of a will, a witness examined in Jamaica having previously made affidavit as to the subject-matter of his evidence -Held no objection to his admissibility.

The

This was an action of proving the tenor of a last will executed in Jamaica. Certain objections taken in the course of the proof were reserved for the opinion of the Court. These were pleaded as in the case of objections, in the course of a proof on commission, brought before a Lord Ordinary, which their Lordships considered the proper method of advising them. following was the only point decided:-One of the pursuer's witnesses, resident in Jamaica, and an instrumentary witness to the will, deponed, on his examination in causa, when cross-interrogated, that he had sworn to two affidavits, along with another instrumentary witness, to the same effect as his present examination.

It was objected by the defenders, 1st, That the affidavits should not have been taken at all: 2d, That they ought to have been cancelled, as the previous deposition of the party before his examination; and, 3d, That this was a case of two witnesses being precognosced together; and that if the agent in Jamaica received instructions from the party's agent in Scotland, the proceedings objected to became the act of the Scottish litigant.

It was answered for the pursuer, that admitting the fact, the objections in question were not a ground of disqualification, more especially looking to the country where the examination of the witness took place; and