ing the materials wherewith to carry on his trade, he, of course, became indebted to those who furnished the materials, and the way in which he managed to pay his creditors was sometimes by cash if he had it, but oftener by endorsing to them customers' bills-that is to say, he took the bills which he had received from a customer for the goods manufactured for and furnished to them, and endorsed these bills over to the creditors who furnished him with the materials of his trade, and so discharged the debt of that creditor. The defenders, in particular, obtained an endorsation of certain of these customers' bills in payment of goods furnished by them, and there are three bills in particular-namely, those in question before us-which were endorsed to them within sixty days of the sequestration. Now, these bills were given for the debt then due by the bankrupt. They were not bills the term of payment of which had come, but, on the contrary, they were payable at a date which occurred subsequent to the date of the sequestration, and the endorsing of these bills was for the purpose of satisfying or securing a debt due by the bankrupt; and it is also quite clear that if the endorsees of these bills get the proceeds and so have their claim paid in full, they will thereby obtain a preference over the other creditors of the bankrupt. To sustain the endorsation of bills in these circumstances would be plainly against the rule of the statute, and would defeat the object of the statute of 1696, because it would put it in the power of the bankrupt to make his endorsations in favour of the creditors whom he may prefer, and leave others to find their rankings on the bankrupt estate after the sequestration comes. Therefore on the face of these proceedings there is plainly an assignation made in favour of a certain creditor in satisfaction or security of his debt to the prejudice of the other creditors, which brings the case directly within the words as well as the principle of the statute. But then it is said that this was done in the ordinary course of business, and that if it be done in the ordinary course of business it does not matter whether the statute directly applies to the case or not, because a thing done in the ordinary course of business is excepted from the operation of the statute. Now, it does not appear to me that this can be said to be done in the ordinary course of business at all. The ordinary course of business for a trader like this Mr Stewart, in a state of solvency, and carrying on his trade under advantageous circumstances, would have been thisthat every one of these customers' bills which he so endorsed would have been lodged by him with his banker, and placed to his credit in his current account with his banker, and when he paid his creditors' accounts for goods furnished to him in his trade, he would have paid them by cheques on that account. That is the ordinary course of business, and this is an extraordinary course of business, only resorted to because the bankrupt was in such labouring circumstances and could not make these bills available except in the way in which he did it. If he had lodged these customers' bills with his banker, they would have gone to wipe off the balance with his banker. But that was not what he wanted. He wanted to make them available as cash, and so, instead of lodging them in the ordinary course of business in his banker's hands, he endorsed them over to

his own creditors. Now, that is not the ordinary course of business, nor the course anyone would resort to except in difficult circumstances, in which this bankrupt was at the time. Reference has been made to some authority for the purpose of supporting this argument of the defender as to the ordinary course of business, and the authority of Mr Bell is alluded to in this passage of the second volume (5th ed., vol. ii. p. 218)-" Payments and other operations in the course of a running account between two merchants, or between a banker and his customer, whether made in cash or by the endorsation of bills, are effectual notwithstanding the statute." Now, in regard to this statement, I think perhaps there is a little misunderstanding in the first reading of it, from his speaking of a running account as if the word account is not of the nature of a cash account. Certainly the authorities to which Mr Bell appeals are cases of running accounts for cash, and nothing else; they are accounts into which money enters on both sides, and nothing else. And I think really that is what Mr Bell means here, that payments made into a running cash-account, whether made in the shape of money, or in the shape of endorsation of bills, are not struck at by the statute. The first case that he refers to is the case of a banker-Stein's Creditors v. Sir William Forbes & Company (M. 1142)—where there was an ordinary current cash-account which Stein, the trader, had with Sir William Forbes and Company's bank, and the bills in the ordinary course of business were lodged by the bankrupt with, and endorsed by him to his banker. Nothing could be more clearly in the ordinary course of business than that. The second case was Richmond and Freebairn's Trustee v. Pelican Insurance Company, June 26, 1805, F.C. Now, there again the relation of parties was apparently a current cash-account, and could be nothing else. The bankrupt was the agent of The Pelican Insurance Company in this country, and the account was caused thus-he remitted, in the shape either of cash or bills, the premiums which he received, and they formed the one side of the account; and the other side was composed of sums remitted by The Pelican Insurance Company for the purpose of settling claims. Nothing would enter that account except cash, and whether it came in the shape of bank-notes, or in the shape of drafts or cheques or endorsed bills, was of no consequence to the rule laid down, because of responsibility in that respect caused on account of the bankruptcy. In that case Mr Bell reports certain observations which were made by Lord President Campbell, and which are very important. He said "that the principle held by the Court in the case of Sir William Forbes & Company with Stein's Trustees settled the case; that this was not a security for a prior debt, but was a case of mutual debt and credit under a running account which must be taken altogether as one transaction; the articles, hinc inde, being counterparts not to be disjoined." Now that is the second case. the third case is that of Dundas v. Smith, June 2, 1808, F. C. That was a case of an insurance broker and an underwriter. And there again the account was, from the nature of the relation of the parties, an account consisting of money on both sides, and nothing else. It was a

And

v. Ramsay

26

running cash-account, and the entries were, of course, of this nature, that when the underwriters had incurred a loss they remitted to the broker in order to settle that loss, and when the brokers received premiums of insurance from the shipowners they entered in the account the money received on that head, so that in that case the only entries in the account, hinc inde, were cash entries. All these cases therefore proceeded on the same principle as is applicable to the case of a banker, and which is expressed in the words I have just quoted from Lord President Campbell's opinion. Now, it is very plain that these cases, and the rule deduced from them by Professor Bell, so far from supporting the contention that this is a proceeding in the ordinary course of business, present a very marked contrast, and show what the ordinary course of business would be in dealing with customers' bills-it is to lodge them in an account with a banker or with somebody with whom you are in constant dealing, and where you require to keep up a certain amount of credit on the one side in order to balance the debts on the other. Therefore, so far, I think, there is no help derived by the reclaimers from any of the authorities appealed to. There is only one case I think that gives an apparent support to what they have maintained, and the reason it gives that apparent support to their case is because it is an isolated and single act of the endorsation of a bill-I mean the case of Watson v. Young (4 Sh. 507). This was a case of indorsation within the period of constructive bankruptcy. But the difficulty in applying that case to the present state of the facts so as to be available to the reclaimers is this, that the relation of debtor and creditor did not exist between the endorser and the endorsee. It arose out of a contract of sale of oats, and without going into the particulars I may state generally, that the substance of the matter is this-it was a cash transaction, and the seller of the oats was not to part with his goods until he received the payment of the price in cash, and therefore the relation of parties was that of seller and purchaser only, and not that of debtor and creditor, and the relation of debtor and creditor did not exist between them at all at any time except in regard to a balance which I shall mention immediately. The buyer did not pay cash on delivery except a small sum, but handed to the seller at the very time of the delivery of the last parcel of oats an endorsed bill for £56, 10s., and which was taken as payment of the price of the oats pro tanto, leaving a certain small balance of about £26, which was still due to the seller when the action was raised Now, it was not possible to hold that the statute applied to that case, because the endorsation was not there given either in satisfaction or security of a prior debt, and there was no creation of any preference in favour of one creditor over another. It was merely the endorsation of a bill to satisfy the obligation of the purchaser in taking delivery of the oats. And so neither the words nor the principle of the statute applied to the case. It is perhaps a little unfortunate that the case is so shortly reported, and particularly that the opinions of the Judges have not been reported at greater length than a mere statement by the Lord President that "this is apparently a cash transaction," because it does

require a somewhat minute examination into the precise facts of the case to show what the ratio of the decision in the case was. But when that is once arrived at it plainly has no application here. Now, I do not pursue the examination that has been made on both sides of subsequent decisions, for none of them are at all applicable to the present case. I think this case depends for its decision entirely on the question whether the indorsation of the bill was not an alienation or assignation of the contents of that bill to a prior creditor in satisfaction or security of a debt, and not done in the ordinary course of business, and about that I entertain no doubt.

LORD SHAND-I am of the same opinion. In argument on behalf of the reclaimers it was not disputed that this transaction was one which is struck at by the statute of 1696, unless the reclaimer were able to make out that the transaction was one in the ordinary course of business, and covered by the principle of the decision of the three earlier cases to which your Lordship has referred. The bankruptcy takes place within sixty days of the indorsation of the bills. The bills were not matured. They had a currency, and the creditor got them in security of furnishings which had been made before, and had retained these bills until they had matured before he got payment of them, as the Lord Ordinary has stated. Therefore, prima facie, this is a case in which one creditor is getting a preference over other creditors of the class which is struck at by the statute of 1696. In order to elide the effect of this it has been maintained that the transaction was one occurring in the ordinary course of business; that the particular trader was in the habit of making payment in this way, by indorsing bills that had a currency. But it is necessary to notice precisely what was the position of the bankrupt, and in what way it came about that these bills were given to these creditors. Now, as to the bankrupt's position I think it is quite clear on the evidence that from the year 1881, when he called his creditors together, and made an arrangement to go through a composition settlement, that the business they carried on thereafter was carried on under labouring circumstances. The trustee explains in his evidence that during that period he found the creditors— various creditors of the bankrupt-had raised actions against him at intervals prior to sequestration. He mentioned the names of several of the creditors, and adds that several of these had not only become creditors and raised actions, but had executed poindings with the view of recovering their debts or part of them, and that all or most of them were still creditors seeking to rank in the sequestration. Now, that, is the position of the bankrupts in carrying on their business. I have taken the account of Ramsay & Company, the persons who were said to have got this preference, and I find this state of facts. It embraces the period between January 1881 and October 1883, and at the beginning of the transaction, and for some time, for goods ordered money was paid-I do not say paid at the time the goods were ordered, but paid from time to time after certain credits were allowed. But that soon ceased. The bankrupts were unable to give cash payments, and then the next thing is, they granted their acceptances for goods, and

we have three such acceptances in the accountcurrent, one on 4th July, another on 3d July 1882, for £25 and £23 respectively, and the third on 3d April of the following year for £37, 10s. Now, the system between the parties so far as these last transactions were concerned, was intended to be this, that the bankrupts having given their acceptances when these matured, it was certainly contemplated that they should be met by cash payments. But instead of that we find that in the account these bills are entered on either side, not as having been met, but by being under the entry "bill withdrawn.' We have three entries at three different periods "bill withdrawn," showing that the bankrupts were not able to meet their bills, and immediately after the withdrawal of the bills instead of paying money they endorsed bills having a currency, and gave these over towards security in the first place, and towards payment of the bills due on the account. Now, that is the system which this account discloses, and the nature of the transaction, and I must say anything more out of the ordinary course of business I can scarcely well conceive. It was ingeniously put in argument that the case might be that of a large wholesale manufacturer or merchant dealing with another, who had purchased from him considerable quantities of goods for the purpose of re-sale, and that an arrangement was made that on his re-selling the goods the wholesale manufacturer should be willing to take all the bills of the purchaser from the middleman (if I may so call him), and place them to the credit of the current account, and keep that account going year after year upon a regular system by which he agreed to give goods constantly, and on the other hand to take the bills in that shape, and put them to the credit of the account. If the case had been one of that kind, in which business was so managed as to make the wholesale dealer as it were the banker in all his transactions, I can quite well see they might have been represented as a series of banking transactions of the parties, so arranged, and that the case might be brought within the exception of transactions of the nature commented on by Bell in the passage to which your Lordship has alluded. It would be an unusual arrangement that a wholesale merchant should become a banker-that he was to apply the bills recovered when discounted, or to apply them when current without discounting themand it is not a case likely to be met with in mercantile transactions. But all I can say is, that this case totally differs from a case of that kind. This is just a case in which a trader having failed to pay cash or meet his acceptances, was driven to the third resource of giving over bills at a period of currency such as were endorsed here, and that such securities are especially securities struck at by the statute. It appears to me, therefore, that this is a case in which the endorsation must be set aside on the trustee's action, and that the transaction cannot be defended as having taken place in the ordinary course of business.

LORD ADAM-1 am clearly of opinion that the endorsations in question here were not granted in the ordinary course of business. I have no doubt it is common enough that where a trader, as in this case, has neither money nor credit with

SECOND DIVISION.

SPECIAL CASE-GILCHRIST AND OTHERS. Succession-Settlement-Conveyance of Heritage Words Importing a Bequest of HeritageGeneral Word followed by Enumeration 'Property."

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A holograph will in these terms-"I hereby dispone, leave, and allocate all the property, goods, money, gear, stock, shares, boats, scrip, &c., which I may be possessed of at the time of my death,"-held habile to carry heritage.

Observations (per Lord Young) on Brown and Others v. Bower and Others, January 26, 1770, M. 5440.

William Oag, a fishcurer at Wick, died possessed of moveable property and heritable estate, consisting of certain houses at Wick. He left the following holograph last will, dated 22d March 1856:-"I, William Oag, fishcurer in Wick, being of sound mind and in full possession of my reason, do hereby dispone, leave, and allocate all the property, goods, money, gear, stock, shares, boats, scrip, &c., which I may be possessed of at the time of my death, whenever that may happen, to be divided into three equal shares at any time after my death as shall seem most convenient, to my trustees hereafter to be named, one of which three equal shares shall be given to my sister Alexandrina Oag, and one share of the same to be given to my sister Margaret Oag, and the remaining third share to be used by my said trustees as they shall consider would be most in accordance with my wishes in life; and to execute these premises I appoint as my trustees my said sisters Alexandrina Oag and Margaret Oag."

The two sisters made up a title to and divided the personal estate. A question arose whether the will was good to carry heritage. The present Special Case was adjusted to have this question decided, a decision upon it having been found necessary in consequence of the condition of the family, which it is unnecessary here to detail. Margaret Oag having become insane, her interest was represented by her curator bonis, James Gilchrist, agent for the Commercial Bank at Wick, the first party to this case. The second and third parties were those members of the family who contended that the will was ineffec tual to carry heritage. The Court were asked to

26

determine whether it did or did not carry heritage.

This Special Case was presented to the Court by James Gilchrist, as Margaret Oag's curator bonis, of the first part, and by Mrs Margaret Oag or Corner and James Crawford, eldest son of Mrs Janet Oag or Crawford, a daughter of Alexander Oag, of the second part, as the two heirs-portioners of the testator's brother Alexander.

The only question of law here requiring to be noticed, on which the Court were asked to express an opinion, was the question whether William Ong's will was effectual to carry heritage.

Argued for the first party-The will was a perfectly operative deed to convey heritage. There were such dispositive words as clearly expressed the intention of the testator. The word "dispone" followed by general words was amply sufficient. Feudal clauses were not requisiteGlover and Others v. Brough, Fac. Dec., Dec. 7, 1810. The question then fell to be answered affirmatively.

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Argued for second and third parties-There was here a derogation from the general bequest of "property" by the particular enumeration of goods, money, gear, &c.," which followed it. The will, then, was inoperative to carry heritage. In the case of Edmond v. Edmond, Jan. 30, 1873, it was held, in conformity with the principle now contended for, that a bequest of "the whole of property either in money, bonds, debts, business, and other effects whatever," could not be construed as including the lease of an inn. In the case of Brown and Others v. Bower and Others, Jan. 26, 1770, M. 5440, it was held that the words 'means and effects, heritable and moveable," were insufficient to convey a proper heritable subject. In Cockburn v. Cockburn, Nov. 18, 1803, Hume's Decisions, p. 131, a clause conveying "the whole horses, nolt, sheep, stocking on farm, household furniture, labouring utensils, lands, heritable or moveable, and whole other effects, heritable or moveable," was found not to apply to the tack of a tenant's farm. If there was any doubt as to what a testator intended, it was not competent for the Court to spell out his intention-Lord President's opinion in M'Leod's Trustee v. M'Luckie, &c., June 28, 1883, 10 R. 1059. In the case of Furquharson v. Farquharson, &c., July 19, 1883, 10 R. 1253, the word "property" did not occur.

At advising

LORD JUSTICE-CLERK-No doubt there have been some cases that turned upon more narrow constructions of words in testamentary settlements in regard to the question whether heritage was or was not intended to be conveyed. I think it is not a technical question in this case at all; it is simply a question whether or not the testator intended to convey his heritable property. He says in his settlement-"I dispone all my property," and then he goes on to enumerate of what his property consists. The words in the settlement are- I, William Oag, fish-curer in Wick, being of sound mind, and in full possession of my reason, do hereby dispone, leave, and allocate all the property, goods, money, gear, stock, shares, boats, scrip, &c., which I may be possessed of at the time of my death, whenever that may happen," and so on. Now, I

VOL. XXII.

cannot bring myself to think that he meant anything else than that it was his desire to settle all his affairs-to make that a general settlement of the whole property that he possessed, whether heritable or moveable. He was possessed of some houses, and in the common parlance among people of that rank property signifies heritage. They talk about property in a burgh, meaning houses in a burgh, and this gentleman seems to have thought that such goods as fishing gear and so on would not be properly denominated by that name. On the whole matter I do not think it is necessary to go into the facts of the case; but I am of opinion that it is not a narrow case of its category, and that the intention of the testator is sufficiently indicated by the words he uses. I think he meant to dispose of his whole heritable and moveable property.

LORD YOUNG-I am of the same opinion. The case would have been too clear for stating if the words used had been "all the property which I may be possessed of at the time of my death." The word "property" is quite different from "means and effects," which was the expression under construction in one of the later cases. And as for the case of Brown, I am not quite satisfied that the decision in that case would be repeated if the same facts occurred at the present time, unless indeed it were in deference to that authority. The same expression was under construction there; but it is quite clear that if the disposition there had contained the word "property" instead of the words means and effects" the Court could not possibly have decided the case as they did, for "means and effects" were followed by "heritable and moveable; "and if the word "property "here had been followed by "heritable and moveable it would have been the clearest case in the world -"1 dispose of my property, heritable and moveable. There must, therefore, have been a clear distinction in the minds of the Judges between "property" and "means and effects." And I repeat that if it had been simply a disposition of "my property of which I may be possessed at the time of my death," I do not think it would have been a stateable case that heritage was not included.

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Well, then, if all that be so, the argument is reduced to this, that the generality of the expression is limited by particular words which follow-"goods, money, gear, stock," and so on. We have a doctrine which is quite intelligible, and is often used, leading to just and reasonable conclusions, that the enumeration of particulars may modify the extent of the meaning of the general expression which precedes. But that, again, is upon the principle that the enumeration satisfies the Court, judging of the deeds, of what the party alone was thinking-that he meant his description to apply in a limited sense-that the enumeration is such as to show the Court construing the document that he did mean to limit it. I do not think the enumeration here indicates that; therefore that principle which alone can be relied upon, if I am right in my previous observations, would not apply. The words here employed satisfy my mind that by property he here meant heritage; and that he adds "goods, money, gear, stock," &c., not as an enumeration of property, but of what was not comprehended

NO. L.

If a

in the word property which he thus used. fishcurer at Wick speaks of his property at Wick, he does not mean his money or fish, although technically he is the proprietor of money and fish; but what he means is his houses there. I think that is what is meant by the expression, "I dispone all the property of which I die possessed, and all the goods, gear," and so on. Now, it is impossible, I think, to lay down any other rule with respect to the effect of an enumeration of particulars in limiting the comprehensiveness of the meaning of a preceding general word otherwise than I have attempted to do. It would be in other language, but it is to that effect, that it will or will not limit the meaning according as the enumeration is such and so introduced as to satisfy the Court or not that it was so intended. Here I am satisfied that it was not so and that the word "property" must intended; have all the meaning which would attach to it, if "goods, money," and so on had not followed. Therefore it comes back to the original proposition, that a disposition by a proprietor of all the property of which he may die possessed will comprehend his heritage.

Lord CraighilL-I am of the same opinion. The question comes to be one of intention, for if a testator did intend that the word "property" as used by him should carry heritage, there is no doubt that his intention ought to be given effect to, always provided that that intention is clear from the expressions used in the deed intended to regulate his affairs. Now, reading this clause together, it appears to me to be clear that the word "property" must be held to comprehend not merely moveables but also heritage. I further think that the word "dispone which is used in the beginning of the clause very clearly shows what was the view of the testator himself. Taken altogether the clause must be read as having the effect it would have had supposing he had disponed all his property, and left and allocated his means and effects for the purposes specified in the deed. If that had been the form of the clause I do not think there would have been a stateable case. It further appears to me that if there is any doubt about the matter, the reasonable course to follow is to hold that whatever property may be reasonably held to be comprehended must be covered by the word. Words

of enumeration which follow have not the same effect, it appears to me, that they have when you begin by special enumeration, and finish up with a general word. Allowing that words which do follow may have a derogatory effect, still, looking to the deed as a whole, and to the words which have been commented upon in particular, it seems to me that they were not introduced by the testator for the purpose of limiting the word "property" to the moveables which he left.

LORD RUTHERFURD CLARK concurred.

The Court answered the question of law in the affirmative.

Counsel for First Party-Nevay-M'Lennan. Agent-William Gunn, S.S.C.

Counsel for Second and Third Parties-Lang -Crole. Agents-Duncan Smith & Maclaren, S.S.C.

Tuesday, June 30.

FIRST DIVISION.

[Lord Fraser, Ordinary.

TEULON V. SEATON AND OTHERS.

Process-Caution-Effect of Failure to Find Caution-Title to Sue.

A married woman, who was one of the beneficiaries under a trust-deed, raised an action against an intromitter with the trustfunds, and also against the trustees acting under the deed of settlement, seeking to have the intromitter decerned to exhibit a full account of his intromissions with the trust-estate, and to pay to her or to the trustees such sum as should be ascertained to be the balance of his intromissions. The Court, in respect of the pursuer's husband not being a consenter to the action, and that the trustees did not propose to prosecute the claim, appointed the pursuer to find caution, and on her failure to do so, assoilzied the defenders from the conclusions of the action.

Terms of a deed of entail which were held to imply, in giving a power to provide for younger children in bonds over the estate for a sum equal to three years' "free rent," that the "free rent" should be calculated without any deduction in respect of the provision for the widow secured over the estate under the same deed.

Archibald Thomas Frederick Fraser, Esq., of Abertarff, died on 2d March 1884, and was succeeded by Lord Lovat as his nearest lawful heir of tailzie and provision in the lands of Abertarff and others. The entail under which the lands were held had been executed in 1851 in obedience to judgments of the Court of Session and House of Lords finding that the heir in possession was bound to execute an entail of the lands so as to give effect to a deed of entail in 1808 and a nomination of heirs following upon that deed in 1812.

The powers reserved to the institute and heirs of entail by the said disposition and deed of entail and settlement of 15th August 1808, and by the said disposition and deed of entail of Sth February 1851, were identical. In the latter