or the said issue, at the times and in the manner following.' Then follow provisions in particular events to the children, and these are very clearly made. If only one child arrives at majority, or if a daughter is married, and survives the longest liver of the spouses, then the sum of £10,000 is to be paid to the child. If two children fulfil these conditions, then £12,000 is the sum to be paid. If three children should stand in this position, then the entire trust capital is to be divided among them equally, but subject to a power of division by the husband. Now, that is the whole scheme of the trust, and it is provided that in either of the two first events of there being only one or two children, then the residue of the trust capital is to be at the disposal of the husband. The deed then provides for the case of there being no child of the marriage, or issue of such children, at the death of the longest liver of the spouses. In that event the capital is to be paid over to the representatives of the spouses in proportions similar to the contributions from which it derived its existence.

This is not a deed difficult of construction. I think the different events contemplated are clearly dealt with, and the provisions are made in plain language. The part of the deed requiring construction is that which speaks of the residue of the capital in the event of there being one or two children of the marriage. The capital as originally provided amounted to £18,500, and it is explained to us that from various favourable causes it is now more. Thus in the event of only one child satisfying the provisions of the marriage-contract and surviving both the spouses, then the residue would be the difference between £10,000 and the amount of the capital, and if there are two children, then the residue would be the difference between £12,000 and the amount of the capital. Now, it is to be observed that there are no directions to the trustees in any event to pay over the residue. In the event of no child at all surviving the spouses, then there is a direction "to pay over, assign, and convey to and in favour of the assignees, executors, or nearest of kin of the said James Montgomery and Eleanora Anstruther Thomson respectively the whole of the said trust capital, and that in the proportions respectively advanced by or for them as herein specified.' In short, in that case the £16,000 provided by the husband was to go to his representatives, and the £2500 to those of the wife. There is a distinct direction to pay over the amount, but as regards the residue-that is, the difference between £10,000 or £12,000 and the capitalthere is no direction to pay at all. What is directed is, that the residue is to be at the disposal of the husband or his heirs or executors or assignees. Now, I do not think that that means any more than that he might dispose of the residue by a deed to be effectual after his death. think that this is clearly a power of testamentary disposal, and the use of the word "assignees makes no difference in my view, because trustees in a testamentary disposition are assignees, and if so, it is plain that it was not intended by the marriage-contract that the so called residue should ever be paid to the husband in his lifetime.

If, indeed, it had happened that it was not necessary to keep up the marriage-contract for the protection of interests, it might have followed, on the authority of many cases, that

the capital might have come into the hands of the husband during his lifetime. For example, if the two existing children consented to put an end to the trust, that might have been a different case. For if they had consented to take payment now by an agreement with their father I do not think the trustees would have had any interest to interfere. But this is not the case, and we cannot do anything that may be adverse to interests under the marriage-contract. All we know is that there are two children who are entitled to £12,000. It has been said that it would be enough security to them if the trustees were to retain the £12,000, and pay over the balance to the husband. I do not think that that would be within the meaning of the marriage-contract. It might be safe, but I think they are bound under this deed to do more. I take this marriage-contract to mean that it shall be kept up in the events which have happened in order that the intended benefits to the children may be secured, and that the whole fund is to remain in trust for this purpose. It is possible that if the trustees were to set apart and invest £12,000, it might transpire when the rights to it emerged, and payment was demanded, that the security had fallen in value, and that the money or part of it had been lost, and the provisions would not have that security which the marriage-contract contemplates. But if the trust must be kept up till the children can claim the money, what of the husband's position? All that is provided for him is an alimentary liferent of the trust funds which he is entitled to draw. I do not know if he has any interest to have the provision to him converted from an alimentary into a non-alimentary provision, and I do not know if we could aid him in doing that. All we know is that he is entitled under this deed to an alimentary liferent of the entire trust funds, and we must accordingly find that the trustees are not entitled to pay over the surplus.

LORD MURE concurred.

LORD ADAM-We are not here dealing with a marriage-contract or a trust which has failed, or one in which the purposes have been implemented, or one which has become inoperative. Here the marriage-contract rules a subsisting trust, and that being so, the question is, what construction are we to put on it in order to carry out the intention of the parties to it? Now, the husband is to receive an alimentary liferent of the whole trust funds. The fourth purpose provides for the disposal of the fee, and then it will be observed that directions are given as to what is to be done after the death of the longest liver of the two spouses-that is to say, what is to happen on the death of the busband, he being the survivor. At the death of the longest liver the trustees are directed to pay £10,000 if there is one child, and £12,000 if there are two children. I agree with your Lordships that the absence of any direction to pay the balance of residue to the surviving spouse is significant, and like all the other directions points to this, that the disposal thereof is to take place at the death of the longest liver. What is not said is that Mr Montgomery shall have the disposal of any part of the resi

FIRST DIVISION. DICK V. RUSSELL AND ANOTHER. Arrestments--Recall--Colliery Labourer--Precarious Wage-Alimentary Provision.

The wages of a colliery labourer were 12s. per week, but his employment was precarious owing to an accident. Under his father's settlement he was entitled, as an alimentary provision, to the income of a share of residue, which yielded on an average 12s. per week. He was unmarried. Arrestments

were used, upon a decree for expenses, to attach the latter sum. In a petition for recall of these arrestments-held that the petitioner's income was not more than sufficient for his support, and arrestments recalled.

This petition was presented by John Dick, colliery labourer, Hamilton, for the recall of arrestments used in the hands of the trustees acting under his father's settlement.

This settlement directed the trustees to hold the residue for the liferent use allenarly of the truster's surviving children, and to pay to them the interest half-yearly, which provision was declared to be for their alimentary use allenarly, and not affectable by their debts or deeds, or liable to the diligence of creditors.

In an action at the instance of the petitioner against the trustees for the reduction of this settlement he was unsuccessful, and the defenders obtained a decree against him for £290, 13s. 2d. of expenses. Mrs Dick, the defender's stepmother, was one of the trustees, and a defender in the action. She died during the dependence of the action, and her executrices, Mrs Margaret Dick or Russell and Annie Dick, were sisted in her place. Upon this decree arrestments were used in the hands of the trustees by Mrs Dick's executrices.

John Dick then presented this petition for recall of the arrestments, in which he averred"That in December 1879 the petitioner, while employed in a tanyard in Hamilton, fell into a vat containing a boiling liquid, and was so seriously injured that he was bedfast for

six months, and he has not yet recovered, and never will entirely recover from the shock which his system then sustained. He is besides suffering from a dropsical affection in his feet and legs which prevents him from working save at light labour. His employment is accordingly precarious, and when working he only earns about 12s. a-week or thereby. That the petitioner, while he is anxious to meet the heavy obligations incurred by him under the said decree, is unable to set aside towards that object any portion of the alimentary income from his father's estate, and he at present depends upon it for his support. The said alimentary income is not of an excessive amount, as it only averages about 12s. per week, and the action of the said Mrs Margaret Dick or Russell and Annie Dick in endeavouring to attach the same by arrestment is incompetent, unreasonable, and oppressive."

The respondents lodged answers, in which they stated-"The petitioner is a flesher by trade, and is at present employed as a flesher in Hamilton. He is unmarried, able-bodied, and is subject to no incapacity, physical or mental. The respondents are unaware of any accident having happened to the petitioner as stated in the petition. The respondents believe and aver that the petitioner is in receipt of a wage sufficient to aliment and maintain him suitably to his position and station in life, and they therefore submit that the petition should be refused with expenses.'

At advising

I

LORD PRESIDENT-There is no doubt that the fund held by the trustees is alimentary. The only doubt is whether the man's income is excessive, his aggregate income being about 24s. per week. cannot say that I think that is more than is necessary for the support of a man in his position. If he were able to earn larger wages the case would be different, but it is evident that he is not, in the proper sense of the term, able-bodied, and that he cannot earn more than 12s. a-week, and that even that is somewhat precarious. He is a labourer in the pits, and his work is apt to be interrupted owing to the state of his health. His wages therefore depend on his being constantly in employment. In these circumstances I am for recalling the arrestments.

LORDS MURE and ADAM concurred.
LORD SHAND was absent from illness.
The Court recalled the arrestments.

Counsel for the Petitioner-Guthrie. Agents - Fodd, Simpson, & Marwick, W.S.

Counsel for the Respondents-Deas. AgentRobert D. Ker, W.S.

M'MURCHY V. EMSLIE & GUTHRIE. Arrestments-Recall-Wages Arrestment Limitation (Scotland) Act 1870 (33 and 34 Vict. cap. 62), sec. 1 and 2.

The Wages Arrestment Limitation (Scotland) Act 1870 provides by section 1 "that the wages of all labourers, farm servants, manufacturers, artificers, and work people shall cease to be liable to arrestment for debts contracted subsequent to the passing of this Act, save as hereinafter mentioned." Section 2 provides--"If the amount of wages earned exceeds 20s. perweek any surplus above that amount shall still be liable to arrestment as before the passing of this Act.'

Under an agreement with his employers, a lamplighter's wages amounted during the summer months to 18s. per week. During the winter months he received £2, 4s. per week, out of which he was bound to pay the wages of two assistants which reduced his own wages to 19s. per week. Held that he was a workman in the sense of the statute, that the agreement in reference to the winter months did not put him in the position of a contractor, and that his wages were not arrestable.

This petition was presented by Donald M'Murchy, lamplighter, Oban, for the recall of arrestments of his wages used in the hands of the Police Commissioners of the burgh of Oban.

The petitioner stated that he came under an engagement for lighting, extinguishing, and cleaning the lamps of the burgh of Oban for a year from 18th August 1887, by acceptance of an offer of the Police Commissioners of the burgh.

Under his engagement he undertook to light, extinguish, and keep clean the lamps from 18th August to 20th April 1888 for the weekly sum of £2, 4s., from which sum he had to pay the wages of two assistants whom, under his engagement, he was bound to employ. The wages of these assistants amounted to the sums of 15s. and 10s. per week respectively, so that his actual income during the period of his engagement was 19s. per week. From 20th April to 18th August 1888, during the lighter work of the summer months, the services of the assistants were dispensed with, he himself doing the work at the wages of 18s. per week.

The petitioner averred that these weekly payments from the Police Commissioners were the only source of income which he possessed, and that from these payments he had to meet the wife and four expenses of maintaining a children.

In the beginning of 1887 the petitioner raised an action of damages for slander in the Court of Session against Peter Campbell, lately Inspector of Police in Oban, and J. C. Maclullich, Procurator-Fiscal for the county of Argyle, and residing at Inverary. In this action he was unsuccessful, and in connection with it incurred liability to Messrs Emslie & Guthrie, S.S. C.,

Edinburgh, who acted as agents for the defender Campbell, to the extent of £31, 10s., the amount of their account.

Upon 20th July 1887 Messrs Emslie & Guthrie obtained decree for this sum as agents disbursers, and upon this decree used arrestments in the hands of the Police Commissioners, of date 11th and 26th November 1887, by which they claimed to have attached the whole wages of the petitioner under his engagement, and the Police Commissioners accordingly, since 26th November, refused to pay the petitioner the sum of £2, 4s. under their contract.

The petitioner stated that, while anxious to discharge his liabilities to the arresters, he was yet unable to set apart from his weekly wages of 18s. or 19s. a sum to that end, as his wages were barely sufficient to secure the necessaries of life for himself, his wife, and family. Further, that he was suffering great inconvenience and hardship from the use of these arrestments, as he was unable to employ and pay for two assistants, whom he was bound to employ in terms of his engagement with the Police Commissioners, and thus he might be driven, by the action of the arresters, to an infringement of his contract, and the consequent deprivation of such means of livelihood as he possessed. In these circumstances he averred that the use of the arrestments was unreasonable and oppressive, and the arrestments themselves were incompetent, and he prayed for their recall.

The respondents denied that the proceeds of the contract constituted the petitioner's sole income. They averred that besides receiving remuneration for lighting private lamps from residenters, he had the whole day at his disposal for other employment, as his contract involved the discharge of no duties during the day, and any assistants he might employ were also then free to do any work they liked. They submitted that it was incompetent in a petition for recall to determine or affect their rights under the arrestments, and in any view, that the petitioner had not set forth relevant grounds showing them to be incompetent or stated circumstances instructing that their use was unreasonable and oppressive.

Argued for the petitioner-The arrestments were not competent under the Wages Arrestment Limitation (Scotland) Act 1870. The Court was in a position to say that they should never have been used at all-Vincent v. Lindsay, November 2, 1877, 5 R. 43; Dick, Petitioner, December 24, 1887, ante p. 281.

Argued for the respondents-The petitioner's income was larger than he admitted. He was in the position of a contractor, and was not a workman in the sense of the Act. This was an arrestment in execution following upon a decree, and there was no authority for the Court interfering-Erskine, iii. 6, 12.

At advising

LORD PRESIDENT-The question here is, whether the petitioner is within the first section of the Act, and to be within that section he must be a labourer or workman, for the other descriptions used by the Act do not apply to a man of his class of occupation. If he is a labourer or workman, then he is within the statute. The only other question is, whether his wages are under 20s. per week. It is clear that as regards what

v Emslie &

4, 1888

may be called the summer months, from April to August, that the petitioner is the labourer or servant of the Police Commissioners, and receives 18s. per week. So that as far as the first part of the year is concerned there is no doubt. The only question remaining is whether for the other eight months of the year he changes this character of labourer for that of a contractor. I think there is not enough in the agreement to effect this change. No doubt during the latter period he is allowed £2, 4s. a-week, but out of that he has to pay for two assistants, and in practice it just amounts to this, that he makes during these eight months 19s. instead of 18s. I do not think there is enough difference between his payment in one part of the year and the other to take the case out of the statute.

LORD MURE Concurred.

LORD ADAM-I observe that in the petition the petitioner is called a lamplighter, and he seems to be properly designed. He is therefore a labourer or workman. The substance of the agreement is that three men shall be employed to do this work, and the petitioner is one of them; and that being so, the law says that his wages under a certain amount must be regarded as alimentary and not attachable. That is the position of the petitioner. His wages seem clearly to be 18s. in summer and £2, 4s. in winter, but the latter sum is so much reduced by what he pays his assistants under his agreement that we must take him as making 19s. per week during this part of the year. Thus his wages are not arrestable.

LORD SHAND was absent from illness.

The Court granted the prayer of the petition and recalled the arrestments.

Counsel for the Petitioner-Lyell. AgentsSmith & Mason, W.S.

Counsel for the Respondents-Forsyth. Agents -Parties.

Tuesday, February 7.

SECOND DIVISION.

[Lord M'Laren, Ordinary. SPENCE V. BOYD AND OTHERS. Trust-Breach of Trust-Agreement-Homologation-Bar.

By antenuptial contract of marriage a wife conveyed to trustees her whole estate for her liferent use allenarly, exclusive of the jus mariti, and for the liferent use of her husband if he survived her. The fee was to go to the children of the marriage. There was no conveyance of any property by the husband, but he became bound to effect an insurance upon his life, the policy being taken in name of the trustees, and to pay the premiums as they fell due. The proceeds of the policy were to be held for his widow in liferent, and the children of the marriage in fee. It was provided by the marriage-contract that in the event of the trustees finding it necessary at any time to

.

pay the premiums, then the husband should be bound to repay to them the amount so expended. There was a power to the trustees to advance to the husband out of the wife's funds a sum equal to the amount of the policy of insurance, and this was done. Shortly thereafter the husband became bankrupt, and in order to prevent the policy lapsing, the trustees paid the premiums out of the income of the wife's estate. This they did from 1865 until 1877. The wife acquiesced, upon the statement of one of the trustees, who was a law-agent, that it was within the powers conferred upon the trustees by the marriage-contract. In 1875 the wife first consulted an independent law-agent, who suggested that there might be a question raised as to these payments. In 1878 she intimated to the trustee above referred to, who was then the only one surviving, that she could not sanction any further premiums being paid out of her income. A correspondence followed between the wife's legal adviser and the firm of law-agents of which the trustee was a partner, the result of which was that the wife wrote a holograph letter to the trustee in 1878, in which her husband concurred, authorising him to sell the policy, and retain the proceeds as forming part of the trust funds under his management, and undertaking to grant a deed of exoneration, if required, in respect of the sale. The policy was sold, and the proceeds added to the capital of the trust. In 1887 the spouses raised an action against the trustee for the amount of the premiums paid between 1865 and 1877 out of the interest of the wife's estate.

Held that the pursuers were barred by the arrangement under which the policy was sold from insisting in their claim.

Miss Mary Munro and Andrew Spence were married on 21st October 1862. An antenuptial contract of marriage was executed by them of the same date. There was an obligation in it by the husband to pay his wife, in the event of her survivance, a free yearly annuity of £100, but there was no conveyance of any property by him to the trustees. By the fourth clause of the contract Mr Spence bound and obliged himself, within three months from the date of the contract, to effect an insurance upon his life with the Colonial Life Assurance Company, for £600, in name of the marriage-contract trustees; "and the said A. Spence hereby binds and obliges himself and his foresaids to make payment to the said Assurance Company, regularly as the same falls due, of the sum of £13, 13s. 6d. as the annual premium on the said policy, or of such other sum as may annually be necessary for keeping the same in force, and to report to the said trustees the receipt thereof, and in the event of the said trustees finding it necessary at any time to advance and pay to the said Life Assurance Company any sum or sums on account of the said premium, the said A. Spence binds and obliges himself and his foresaids to make payment to them or their foresaids of each sum as the same may be instructed by the company's receipts therefor, with interest of such sum or sums at the rate of five per centum from the time at which the same falls due and till payment,

and a fifth part more of liquidate penalty in case of failure, which policy of insurance, and the price and proceeds thereof, the said trustees shall hold in trust for behoof of the said Mary Munro in liferent, for her liferent use allenarly, free of all rights of every description competent to her said intended husband, or any husband she may marry, and unaffectable by his debts and deeds, and they shall pay over to her the annual proceeds of the sum or sums to be recovered under the said policy, which annual proceeds shall be received by her in payment and satisfaction pro tanto of the annuity herein before provided, declaring that the receipt of the said Mary Munro shall be sufficient without the consent of her husband: And upon her death the said trustees or trustee shall hold the said policy, and the price and proceeds thereof, for behoof of the issue of the said marriage, and failing issue for behoof of the nearest heirs or assignees of the said A. Spence, declaring the said intended spouses or survivor shall have the power of regulating the shares of such issue, and the period or periods of division."

Mrs Spence conveyed to the trustees the whole heritable and moveable estate and effects then belonging or that might belong to her during the subsistence of the marriage, in the first place for her liferent use allenarly, declaring that the jus mariti and all other rights of the husband were thereby excluded, and that the same should not be affectable by his debts or deeds; in the second place, for the liferent use allenarly of her husband in the event of his survivance; and in the third place, for behoof of the issue of the marriage, and failing issue for her heirs and assignees. The trustees were empowered "to advance to the said Andrew Spence out of the said trust-estate a sum not exceeding £600 sterling upon his own personal security, if they are of opinion he can make advantageous use of it in his business or otherwise." original trustees were David Munro, residing in Madeira Street, North Leith; David Munro junior, residing in Madeira Street, North Leith; James Laurence Boyd, of Leith, S.S. C.; John Sheppard Shields, wine merchant, Leith; John Drever Spence of the Scottish Widows Fund and Life Assurance Society, Edinburgh; and Pillans Scarth, W. S., Leith.

The

A policy of insurance for £600 was effected with the Standard Life Assurance Company in accordance with the terms of the marriage-contract, and was taken in name of the trustees. After the marriage the trustees advanced to Mr Spence the sum of £600 under the authority given to them by the marriage-contract. Spence not long afterwards became bankrupt.

Mr

Owing to Mr Spence's bankruptcy he was unable to pay the premiums of insurance upon the policy for £600, and in order that the policy should not lapse the trustees paid the half-yearly premiums as they fell due out of the income of the estate conveyed to them by Mrs Spence down to the year 1877. On 5th April 1878 a letter was written by Mrs Spence, with concurrence of her husband, to James Laurence Boyd, then the sole surviving trustee, in which they requested and authorised him to sell the policy of insurance, and to retain the proceeds "as forming part of the trust funds under your management, of which I am entitled to en

&

joy a mere liferent, and I undertake if and when required by you to grant a deed of exoneration in your favour in respect of the sale now authorised by me." The liferent of the estate had by this time been assigned by the spouses in security of advances, and the concurrence of the assignee was obtained to this proposal. The policy was accordingly sold, and realised the sum of £113, which was added to the capital of the trust.

In 1887 Mr and Mrs Spence raised an action against James Laurence Boyd, the sole surviving original trustee under their marriage-contract, as trustee, and also as an individual, for payment of the sum of £306, being the amount, with interest, of the premiums of insurance paid halfyearly out of Mrs Spence's liferent from 1865 until 1877. There were also called as defenders-J. H. Jamieson, W.S., and J. D. Kelly, S.S.C., who had been assumed as trustees, and also J. Hastie, S.S. C., the assignee of the pursuers' liferent for their respective interests, but decree was only asked against them in the event of their appearing to oppose the conclusions of the

summons.

The pursuers pleaded-"(1) The defender Boyd having paid the said premiums out of the pursuer, the said Mary Munro or Spence's said life interest in breach of his duty as trustee and agent as condescended on, is bound to repay to her these sums, with interest as concluded for."

The defenders pleaded-"(2) All parties not called. (3) The defender Mr Boyd being only one of a number of trustees, is not in any event liable in solidum. (5) The trustees having acted within their powers in paying the said premiums of insurance out of revenue, for the purpose of keeping the said policy in force, should be assoilzied, with expenses. (7) The pursuers having authorised, or at least homologated, the payment of the said premiums out of the said revenue, the defenders are entitled to absolvitor, with expenses."

On 12th March 1887 the Lord Ordinary (M'LAREN) sustained the defenders' second pleain-law, and sisted process to enable the pursuers to raise a supplementary action.

"Opinion.-I think I must sustain the second plea-in-law for the defenders.

"The action is no doubt a personal action in this sense, that the trustees are said not to have fully accounted for the income of the lady's property; that they have debited her with payments which were really payments on account of the husband. Now that is nothing but an action founded upon accountability. My view is that trust is a joint office, a joint estate, a joint power of administration, and a joint obligation to account; and where there is no allegation of fraud or other wrong, but a claim to have items of credit disallowed, it is necessary to proceed against all the trustees. I think that this is not a mere technical view, because where the obligation to account is joint, then if any of the defenders is unable to perform his share of the obligation or pay his share of the money, that is a loss to the pursuer.

"I shall therefore sustain the second plea, and sist process until the other trustees or their representatives are called.

"I am inclined to think that it is a case that falls under the rule, that where the party has