entail and co-trustee. Colonel Kinloch, by way of security, insured his life with the Royal Exchange Assurance Company, and he also gave a security for the payment of the premiums.

At the time when this transaction was under negotiation, it was communicated to one of the trustees, Mr. Ouchterlony, who dissented from it; he was dissatisfied with this mode of applying the funds, which he considered to be inconsistent with the terms of the deed, and in the course of the correspondence or communication which took place upon that subject, he said he would not act any longer in the trusts. By the terms of the deed, three of the trustees are declared to be a quorum. It was necessary that three should concur in any act; and any act done by them was declared to be valid and binding as long as there were three trustees remaining. Nothing further took place with respect to this transaction during the lifetime of Colonel Kinloch. In the year 1824 he died; at that time there were but three trustees living: Mr. Ouchterlony, Lord Lynedoch, and another. Application was made to the insurance office for the payment of the money. The insurance was made, and properly made, according to the law of Scotland, in the names of all the trustees. The insurance office refused to pay the money without a discharge from the three trustees. Application was made to Mr. Ouchterlony to unite in giving this discharge; he refused, and in consequence of that, this suit was instituted against him, calling on him to join in the discharge; and judgment of the Court of Session was pronounced against him to that effect; from that judgment there has been an appeal to your Lordships' House.

1830.

OUCHTERLONY บ.

LY NEDOCH.

1830.

OUCHTERLONY

V.

LYNEDOCH.

After the judgment was pronounced, and, I believe, pending this appeal, Mr. Ouchterlony was advised to sign the discharge; a discharge was accordingly signed, and the money was paid. Still however, Mr. Ouchterlony has a right to your Lordships' judgment, with respect to the validity of the decision in the Court below. Mr. Ouchterlony stated, that he did not conceive he should be justified in signing the discharge; that it would make him a participator in the original act; that he had condemned the original act; that he was not liable by that deed for his omissions, but for his intromissions; and that, by signing the deed and receiving the money, he should be an intromitter, and should be liable, if the estate had suffered any thing by this mode of investing the funds. I apprehend that these objections were altogether frivolous. In the first place, if the money was misapplied - if it was an improper investment— it was the duty of Mr. Ouchterlony, as one of the three surviving trustees, to do every thing in his power for the purpose of recovering the money, that it might be invested more in conformity with the terms of the deed. The signing the discharge, under the circumstances in which he was placed, would not have made him a participator, or at all responsible for the original investment of the money. I conceive, therefore, that the excuse and reason he has assigned for not signing the discharge is altogether unsustainable.

There is, however, another part of this judg ment which is material, and which is brought under the consideration of your Lordships' House. The Court below have not only ordered that he should sign the discharge, but they also declared

that he is bound, in the future management of the estate, to act along with the trustees, and to concur with them in all proper and necessary acts of administration, and have decreed accordingly. Now the question is, whether the Court below had authority to make a decree of this description. Mr. Ouchterlony has accepted the trusts. By the terms of the trust three persons were necessary to concur in any act to give effect to that act: all the trustees, except Mr. Ouchterlony and two others, had died. If Mr. Ouchterlony, therefore, did not concur in any act, nothing could be done under the trust. He had accepted the trust; and, according to the opinion and decision of the Court below, he having once accepted the trust, could not withdraw from it, so as to defeat the object of the trust; and it appears to me that this opinion is confirmed by the law of Scotland. But according to some suggestions which were stated at the bar, it was conceived that there was no authority to support such a decision. On the contrary, it was suggested that there were authorities the other way. I attended, however, with great patience to the statement of the learned counsel, and have since endeavoured to find such authority. I have found, however, nothing in any text writer, or any case to establish such a position; no such passage was quoted, no such opinion was referred to, no such case was shewn to exist. I therefore feel it my duty, under all these circumstances, to advise your Lordships to concur in the decision of the Court below; the effect of which is, to uphold this trust, to give effect to it, and to compel Mr. Ouchterlony, who accepted the trust, to act in discharge of it in the manner stated

1830.

OUCHTERLONY

บ. LYNEDOCH.

1830.

OUCHTERLONY

v.

IYNEDOCH.

in this decree: that is, to concur in all lawful and necessary acts, for the purpose of giving effect to the trust to which he was a party, and which he had regularly accepted. I should, under these circumstances, humbly advise your Lordships to affirm this decree.

Judgment affirmed.

t

Upon a contract for the sale and purchase of a wood, in which the vendor reserved a power to retain a certain number of acres to be taken out of the belt, and in a suit in the Court of Session respecting the price or value of the part selected to be reserved, evidence was admitted by the Court which ought to have been rejected, and judgment was given for the vendor, the purchaser not having asked of the Court to direct an issue to the Jury Court.

Upon appeal against this decision, the House of Lords, being of opinion that the judgment was supported by the other evidence in the cause, and ought to have been the same if the evidence improperly admitted had been rejected, and that the Court was judge of the law as well as the fact: Held that the judgment was right, and that an issue as to the value ought not to be directed.

N. B. That the same exception to the general rule as to new trials prevails in English courts of law, where, although the effect produced upon the jury by the improperly admitted. evidence cannot be ascertained, the courts, in some instances, refuse to direct a new trial.

LORD WYNFORD. - In this case objections were taken, and most powerfully argued, against the evidence received in this cause; and also an objection that the judges had taken upon them to decide a question of fact, instead of leaving it to a jury. I am decidedly of opinion that the evi

Nov. 12.