Bowie

ventory. These documents, and in particular the plan, were absolutely necessary as part of a good and valid progress of titles. Without said plan the subjects were not sufficiently or properly identified or described, and the boundaries and extent thereof could not be ascertained. The plan, and the various portions and lots therein delineated, were expressly referred to, and were incorporated into the description of the subjects, not only in the whole titles thereof, but in the draft disposition by the pursuer, as showing the particular subjects sold and to be conveyed to the defender. Further, without the plan it could not be seen whether the possession by the pursuer on the titles produced had been sufficient and exclusive possession of the whole subjects forming the lands and farm of Broadlie, as delineated on the plan and sold to the defender. In point of fact none of the writs tendered by the pursuer to the defender contained a description of the subjects (but merely one by reference to the plan), nor had a sufficient or particular description thereof ever entered the record. The want of the plan or description had been specially felt since the bargain had been made, and disputes as to the boundaries thereof had been raised by adjoining proprietors. In particular, Mr M'Connell, an adjoining proprietor to the west and south, had claimed part of Broadlie, and had threatened to interdict the defender from taking possession of said part, although it had been specially pointed out by pursuer to defender as part of the subjects sold. Further, the defender was informed that a part of the subjects sold, and lying at the north-west end thereof, was included and had been possessed as part of the adjoining estate of Nether Kirkton.

He pleaded-"(2) The pursuer having failed to deliver and tender to the defender a proper and valid title and progress of titles to the subjects in question the defender should be assoilzied."

The Lord Ordinary (TRAYNER) on 7th December 1888 pronounced the following interlocutor:-"Finds that the title offered by the pursuer to the defender in implement of the agreement is not a valid or marketable title to the lands in question, or such a title as the defender is bound to accept in return for payment of the stipulated price, and supersedes further consideration of the cause hoc statu.

"Opinion. By the minute of agreement executed in May 1887 the pursuer agreed to sell, and the defender to buy, the lands and farm of Broadlie in the parish of Neilston and county of Renfrew. Under that agreement the pursuer bound himself to deliver to the defender, in payment of the stipulated price, a valid disposition of the said lands, and also a valid progress of titles, in virtue of which said subjects are presently vested' in the pursuer. The present action is brought to enforce implement of said agreement, the defender having refused to pay the price of the lands, on the ground that the progress of titles offered to him is not valid or marketable, and is such a progress as he is not bound to accept.

"The progress of titles offered by the pursuer extends back far beyond the prescriptive period, and the objection that it does not contain the disposition No. 17 of the inventory, dated in 1834, seems to me untenable. The only objection

which has been stated (and, I should add, the only objection seriously insisted in) which requiries consideration is that based upon the want of the plan No. 13 of the inventory. To appreciate this objection it is necessary to advert to the description of the lands in question as it appears throughout the whole progress, including the conveyance in favour of the pursuer himself. That description is as follows-All and whole those parts of the lands of Nether Kirkton, known as the farm of Broadlie, partly planted, and marked Nos. 1, 2, 3, 4, 5, 9, and 10, on a plan of the lands of Nether Kirkton, Lambies, Bankholm, Kirkhill, and Costerland, drawn by Peter Macquisten, land surveyor in Glasgow, and subscribed by the trustees of the late John Airston of Greenhill, as relative to certain articles of roup executed by them upon the 11th day of September 1833, . . . which lands and others, as laid down on the said plan, extend to 10 acres 2 roods and 33 falls and six-tenth parts of a fall or thereby Scotch measure, and which subjects are parts and portions of all and whole the twenty shilling land of old extent of Nether Kirkton of Neilston.' This description is followed by the declaration that a part of the land so described and conveyed is not conveyed as absolute 'property,' but is common to the said lands and to the fields marked Nos. 6, 7, and 8 on said plan, and to the Mill of Broadley and adjoining lands.' There are other portions of land excepted from the conveyance.

"In this state of the title the defender maintains that the plan prepared by Macquisten, and specially referred to, is essential to ascertain the extent and exact locality of the lands in question; that without it he cannot know or indicate his boundaries (which, he avers, have already been questioned), nor can it be shown that the pursuer has had sufficient or exclusive possession of the whole subjects as delineated on said plan, and sold by him to the defender. The pursuer, on the other hand, maintains that the progress of titles offered by him is sufficient, and that production of the plan in question (which he has not got, and cannot find) is not essential; that he and his authors have possessed upon that title the whole land, which he now sells to the defender, for more than the prescriptive period; that the said lands were fenced, and no dispute about his boundaries has been raised in his time, and that if the boundaries as claimed by him are now disputed (which he does not admit) he is not bound to fight that question on the defender's behalf. He also points to the fact that the extent of the lands conveyed is stated in the titles to be 10 acres, and so on.

"In this controversy I am of opinion that the defender is right. I think the title offered is not a marketable title or such as the defender is bound to accept. The titles tendered (without the plan) contain no such description of the subjects as plainly identifies them or distinguishes them beyond question from the adjacent lands. The pursuer's title is a bounding_title- North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200but the boundaries can only be ascertained by reference to the plan. Without the plan therefore it is impossible to say whether the land now possessed by the pursuer and sold to the defender is the whole of the land to which the

original title refers, or whether part of it has been lost to the pursuer by adverse possession on the part of an adjacent proprietor. Nor can it be ascertained whether the pursuer has possessed more than was originally conveyed by the title under which he holds. If he has, any land so possessed may be reclaimed, because beyond his boundary he could not acquire by prescriptive possession. Without the plan therefore, it is impossible for the defender to ascertain whether the subjects now offered by the pursuer are more or less than those covered by his title. The necessity for production of the plan is rendered all the greater by the declaration that part of the land undoubtedly covered by the pursuer's title is declared to be his, not in absolute property, but in common only with others, as well as by the declaration that certain lands are excluded from his conveyance.

"The defender having stipulated for a valid progress is entitled to one on which no reasonable doubt or question can be raised. In such a case as this 'the point is not so much whether there is much probability of eviction or of any party challenging the title as whether it would be such a title as would be taken by a purchaser (from the defender) without objection or without some further guarantee, or at least a diminished price-per Lord Mackenzie in Brown v. Cheyne, 12 S. 178. The defender says that the title offered to him by the pursuer has been rejected by a person to whom he applied for a loan over the subjects in question, and I think that statement may be accepted without proof, its probability is so obvious. But that shows that the title now tendered by the pursuer is not of that character which he is entitled to insist upon in return for a full price-Dunlop v. Crawford, May 26, 1849, 11 D. 1062."

Counsel for the Pursuer-Dickson. AgentJ. Smith Clark, S. S.C.

Counsel for the Defender-Shaw. Andrew Newlands, S.S. C.

Wednesday, June 6, 1888.

OUTER HOUSE.

Agent

[Lord Fraser, Ordinary.

A B v. C D.

Jurisdiction-Declarator of Marriage - Acceptance of Service by Agents under Reservation of all Pleas competent to Defender.

An action was brought against a domiciled Englishman to have it declared that he had entered into a marriage in Scotland by declaration de præsenti. The defender had returned to England, and his agents in Scotland accepted service of the summons, but under reservation of all pleas competent to him. Held that the Scottish courts had no jurisdiction over him.

A B, a widow, raised an action against CD to have it declared that they were lawfully married to each other in Scotland on or about 24th

January 1888, or alternatively for damages for seduction.

The pursuer averred that on the morning of Tuesday 24th January a written declaration of marriage de præsenti was drawn out and subscribed by her and the defender before two witnesses, and that in consequence of such declaration of marriage the pursuer permitted the defender to have intercourse with her, which she would not have permitted had she not considered herself legally married to him.

Service of the summons was accepted by the agents of the defender in Scotland, but under reservation of all pleas competent to him, and defences were lodged for him.

In the defences it was averred that the defender, who was born in England, never acquired a domicile in Scotland, and was not subject to the jurisdiction of the Scottish courts.

The defender pleaded-No jurisdiction.

Argued for the pursuer (1) The contract had been entered into in Scotland, and the matrimonial domicile of the spouses was there. Residence in Scotland for forty days was sufficient to found jurisdiction in actions of declarator of marriage. It was only in actions of divorce that the plea of no jurisdiction had been sustainedFraser on Husband and Wife, ii. 1275. (2) But here there had been acceptance of service, which was equivalent to personal citation in Scotland. Whatever pleas were reserved, the acceptance of service barred the defender founding upon want of citation, and pleading no jurisdiction-Campbell's Law of Citation-pp. 66, 67.

Argued for the defender-(1) Where an action of declarator of marriage was raised against a foreigner there must be personal citation upon the defender in Scotland-Fraser on Husband and Wife, ii. 1272 (note a); Wylie v. Laye, July 11, 1834, 9 F.C. 495, and 12 S. 927. (2) There had been nothing here equivalent to personal citation, and all pleas, including that of no jurisdiction, had been reserved in the acceptance of service.

The Lord Ordinary on 6th June pronounced the following interlocutor:-"Having heard counsel on the closed record on the procedure roll, sustains the first plea-in-law stated for the defender of no jurisdiction: Dismisses the action, and decerns: Finds the defender entitled to expenses," &c.

Counsel for the Pursuer-Baxter. AgentWilliam Black, S.S.C.

Counsel for the Defender-Comrie Thomson. Agents-Hope, Mann, & Kirk, W.S.

Friday, July 20.

SECOND

DIVISION.

(Before Seven Judges.)

[Lord M'Laren, Ordinary.

RAES V. MEEK AND OTHERS.

Trust-Bad Investment-Liability of Trustee and of Law Agent in Trust - Title to Sue.

Trust funds, which were held in terms of an antenuptial marriage-contract, were lent on the security of houses in the course of erection, and were lost through the insufficiency of the security. The marriage-contract empowered the trustees to lend on heritable securities, or personal securities or obligations, and contained a clause which declared .that the trustees should not be answerable "for errors, omissions, or neglect of diligence, nor for the insufficiency of securities, insolvency of debtors, or depreciation in the value of purchases." An action was raised by the beneficiaries, who had a contingent right to the fee of the trust-estate, against the trustees and the law agent in the trust, "conjunctly and severally, or severally, or in such other way or manner" as should seem just, to restore the money to the trust. Defences were lodged for one of the trustees and for the law agent.

The Court, after a proof, unanimously held that the security was bad, but, by a majority of seven Judges (diss. Lords Mure, Shand, and Rutherfurd Clark), assoilzied the trustee, and (diss. Lord Young) assoilzied the law agent.

The Lord President, Lord Justice-Clerk, and Lord Adam were of opinion that gratuitous trustees are only liable for such diligence, prudence, and knowledge as they actually possess in the management of their own business, and that, judged by this standard, the evidence showed there had been no negligence on the part of the trustee.

Lord Young was of opinion that the trustee was not liable, as he had acted on what he considered the best advice, that of the law agent.

Lord Mure, Lord Shand, and Lord Rutherfurd Clark were of opinion that gratuitous trustees must show the same reasonable care that a man of ordinary prudence would exercise in the management of his own business, and that the trustee was liable, as the evidence showed he had failed in this.

Opinion per the Lord President that the indemnity clause in the marriage-contract protected the trustee-Opinions contra per Lords Mure, Shand, and Young.

The Lord President, Lord Justice-Clerk, Lords Shand, Rutherfurd Clark, and Adam, were of opinion that the pursuers had no title to sue the law agent, (1) because he was under no contract of employment with them, and (2) because they might never become entitled to the trust-estate, and would in that event suffer no damage.

Lords Mure and Shand were of opinion that there was no liability, even assuming a title to sue, because a law agent is not respons

VOL. XXV.

ible for the sufficiency of a security, unless there is a special undertaking to that effect, which was not averred in the present case.

Lord Young was of opinion that as all the parties were before the Court the liability of the law agent should be determined in the present action, and, on the evidence, that he was liable, as there had been a failure of duty on his part.

In 1852 the Rev. Robert Reid Rae, minister of the parish of Avondale, was married to Miss Jessie Croil, daughter of James Croil, Esq., a merchant in Glasgow. They entered into an antenuptial contract of marriage, by which Mr Rae settled his furniture on his wife, and bound himself to pay punctually the rates to the Ministers' Widows' Fund; Mrs Rae conveyed property of the value of £5000 to the marriagecontract trustees, for the following purposes, viz.-"(First), for behoof of the said Jessie Croil herself in liferent during the subsistence of the said marriage, exclusive of her husband's jus mariti and powers of administration as aforesaid, and in order that she may, by herself, without her husband's concurrence, receive, discharge, use, and dispose of the whole rents, interest, and profits of the said meaus and estate, and in case of the dissolution of the said marriage by the decease of the said Reverend Robert Reid Rae, for behoof of the said Jessie Croil, and her heirs and assignees whomsoever in fee; (secondly) in case of the dissolution of the said marriage by the decease of the said Jessie Croil, for behoof of the said Reverend Robert Reid Rae in liferent from and after her decease, so long as he shall survive her, and remain unmarried, and in order that he may, during the said period, receive, discharge, and enjoy the said rents, interest, and profits; and (lastly) in the case of the dissolution of the said marriage by the event last mentioned, and of there being a child or children thereof surviving at the decease or second marriage of the said Reverend Robert Reid Rae, and attaining twenty-one years of age, or (if a daughter or daughters) being married, for behoof of such child or children so surviving, and attaining majority, or (if female) being married, in fee."

The trustees had a power of sale of all or any part of the trust subjects, "they being bound always to invest or re-invest the proceeds of such sales, and all other principal sums to be realised by them, either in the purchase of heritable property, feu-duties, or ground annuals, or Government or bank stocks, or heritable securities, or even upon such personal securities or obligations as they may approve of as good and sufficient, taking the titles, securities, and obligations always in favour of themselves as trustees for the purposes of these presents." There was a clause of indemnity, which declared "that the said trustees shall not be answerable for errors, omissions, or neglect of diligence, nor for the insufficiency of securities, insolvency of debtors, or depreciation in the value of purchases, nor singuli in solidum, or for the intromissions of each other or of their factor, but each for his or her actual intromissions only, under deduction of all payments bona fide made in fulfilment of the premises." Amongst the trustees appointed were Mr and Mrs Rae, the latter being a sine qua non, John Meek, Esq. of Fortissat, and the Rev. John Ellis Rae, minister of Duntocher, near Glasgow,

NO. XLVII.

In January 1874 the trustees received the sum of £4750, being nearly the whole capital of the trust-estate, for re-investment. Accordingly a meeting was held on 30th January 1874, at which were present Mr Meek, Mr and Mrs Rae, the Rev. John Ellis Rae, and Mr Hotson, of the firm of Hotson & Howie, who acted as solicitor to the family. The minute of this meeting bore that "it being necessary to re-invest the sum, it was resolved to look for heritable securities of adequate value, and Mr Hotson was directed to be on the outlook for such, and to report to the trustees any proposals he might receive."

On the 5th May 1874 another meeting of trustees was held at the chambers of Messrs Hotson & Howie, at which were present Mr and Mrs Rae and Mr Meek. The minute of this meeting bore-“There were laid before the meeting rentals and valuations of several heritable properties on which loans were wanted, after considering and comparing which, the trustees resolved to make a loan of £4500 to Mr William Henderson, one of the applicants, on the security of buildings in Gallowgate valued by Mr Burnet, architect, at £6500: Provided always, that Mr Hotson shall be satisfied with the title, and that such part of the loan shall be deposited in bank in the joint names of the parties' law agents, as Mr Burnet shall judge to be sufficient for finishing the buildings, to be drawn out and paid over to Mr Henderson, when Mr Burnet shall, at his expense, report the full completion of the work." The subject of this security was part of a large block of buildings then in course of erection in Gallowgate, involving an outlay of from £25,000 to £30,000. Mr Anderson, who was a spirit dealer in Glasgow, was building them as a speculative and new experiment for shops below, and for warehouses and workshops above. They were at the date of the loan unfinished, and were charged with a ground annual of £191, 19s. 1d. They were in a part of Glasgow where there had been previously no buildings of the same class or character. Mr Burnet had been employed by Mr Henderson to value the subjects, and he stated in April 1874 that he was of opinion that when the buildings were finished, papered, and painted, ready for occupation, this property will be worth £6500, over and above the annual feu-duty." On 20th May 1874 a bond and disposition in security for £4500 was granted in favour of the trustees. The principal sum in the bond was therein declared to be payable at Martinmas 1874. The whole sum was not paid at once, but at the settlement the sum of £2800 was retained in terms of a report by Mr Burnet to await the completion of the buildings, and deposited in bank in the joint names of Mr Hotson and Messrs Brownlie & Watson, the pursuers' agents. It was paid by instalments as the work proceeded, the last payment being made on 18th October 1875, the buildings being completed in the end of that year. Their cost did not exceed £4000. These payments were made upon reports by Mr Burnet in terms of the trustees' resolution. The rate of interest due under the bond was 4 per cent. It was paid up to Whitsunday 1878. On the 24th January 1879 Mr Henderson was sequestrated, and a trustee appointed on his sequestrated estate. The build

ings proved a financial failure, and did not realise sufficient to pay even the feu-duty. The sum of £4500 contained in [the bond was thus wholly lost to the trust-estate.

This action was raised by the two surviving children of the marriage, Jane Donaldson and Agnes Lloyd Reid Rae, against John Meek, and their father and mother Mr and Mrs Reid Rae, the accepting and surviving trustees who were acting in May 1874, and also against the firm of Hotson & Howie, and Robert Howie, the surviving partner of that firm, as such and as an individual, and Hamilton Andrew Hotson, as universal disponee of his father the deceased John Hotson, the other partner, and also against the whole trustees as trustees, the conclusions of which were for declarator that the defenders were "conjunctly and severally, or severally, or in such other way or manner as to our said Lords shall seem just," bound to make payment to the said trustees as trustees of the sum of £4500, in conformity with the purposes of the trust created by the antenuptial contract of marriage, and for decree for such sum.

The pursuers stated that they had a right on the decease of their surviving parent to have the trust funds paid over to them: They averred-"The said sum of £4500, and interest thereon, was lost to the trust-estate through the gross negligence and violation of duty of the said trustees who were present at the meeting of the 5th May 1874, and through the gross negligence and want of skill of the said Messrs Hotson & Howie, the agents in the trust. The investment was one which no prudent or reasonable man would ever have made, and there were plenty of good and safe investments to be had for the money. The said Mrs Rae and her husband were ignorant of business affairs, and of what was a prudent investment, and they relied upon the knowledge and skill and carefulness of Mr Meek and of Messrs

Hotson & Howie. It was gross negligence and want of skill on the part of Mr Meek and the latter to allow the trust funds to be invested on the said subjects, because, inter alia, the buildings which it was proposed should be erected were of a purely speculative character, for which there was no demand in the locality, because their value had not been tested by an actual rental, and the defenders had not even before them at the time of granting the loan any estimated rental, and because the feu-duty annually payable was such that no person of prudence would have lent £4500 or any sum over the buildings subject thereto. The nature of the locality was well known to Mr Meek and the agents. It was impossible without the grossest negligence to make an investment which would immediately thereafter result in almost the whole of the trust-estate being lost. The said Hotson & Howie grossly failed in their professional duty by allowing the trustees to invest in such a speculation. It was through their advice and on their instigation that the investment was made. It was their duty as the professional advisers of the trustees to have prevented their investing the trust funds on unbuilt or unlet property, the investment being of such a nature as is never sanctioned by agents for trustees.

No appearance was made for the Rev. Mr and Mrs Reid Rae or the Rev. Mr Ellis Rae, but sepa

rate defences were lodged for (1) John Meek, (2) for Hotson and Howie and Robert Howie, and (3) for H. A. Hotson, the substance of which on the merits was that the investment was carried through with all ordinary prudence and care both on the part of the trustees and the agents. The security was a perfectly eligible one, and ample at the time when the advance was made.

It continued so until the failure of the City of Glasgow Bank in 1878, and the consequent depression of trade and deterioration of all kinds of property in Glasgow. The loss could not have been foreseen. Mr Meek maintained that the pursuers under their parents' marriage-contract had no vested interest in the trust funds, and therefore no title to sue, and that he had in the circumstances acted with all ordinary care and prudence, relying on the advice of competent professional men. Hotson & Howie and Robert Howie stated that the trustees were capable of forming and acting on their own judgment, having the guidance of Mr Burnet's report.

The pursuers pleaded-"(1) The said principal sum of £4500, and interest thereon since the term of Whitsunday 1878, having been lost through violation of duty and gross recklessness and negligence of the trustees present at the meeting of 5th May 1874, and through the gross negligence and want of skill of their said law agents, the pursuers are entitled to decree as concluded for.

Mr Meek pleaded-“(1) The pursuers have no title to sue. (2) The defender not having been guilty of violation or neglect of duty as libelled, is entitled to absolvitor, with expenses."

Messrs Hotson & Howie and Robert Howie pleaded-"(1) The pursuers have no title to sue. (2) The averments of the pursuers are irrelevant. (3) No relation of agency having existed betwixt the defender Robert Howie, or the firm of Hotson & Howie, and the trustees acting under the contract of marriage libelled with reference to the loan of £4500, he and the said firm should be assoilzied. (4) In any event, the trustees having taken upon themselves to consider the sufficiency of the security for the said investment, and thereafter accepted the same, and the said John Hotson never having undertaken or professed to advise them as to the sufficiency of the security, the defenders Hotson & Howie, and the defender Robert Howie, should be assoilzied. (5) In any event, the defender Robert Howie is not responsible for the negligence or want of skill of the said John Hotson in executing business which it was beyond his implied authority as a partner to accept. (6) The said loan having been an investment within the powers vested in the said trustees at common law, or in any event, by the said contract of marriage, the defenders Hotson & Howie and Robert Howie should be assoilzied. (7) In any event, there having been no negligence or want of skill on the part of the defenders Hotson & Howie, or the defender Robert Howie or John Hotson, the other partner of the said firm, with reference to the said investment, the defenders Hotson & Howie and Robert Howie should be assoilzied."

H. A. Hotson pleaded-"(1) No title to sue. (2) The pursuers' averments are not relevant. In particular, it is not said that the law agents were employed by the pursuers, but by the

trustees, to whom alone they are answerable. (3) The trustees having on full information and proper advice selected the investment in question, which was within the powers of the marriage contract, no liability attaches to the representatives of the law agents. (4) The security at the time being perfectly sufficient, and forming a safe and suitable investment for the trust funds, there was no negligence on the part of the law agents, and their representatives are not liable for any loss that may afterwards have arisen. (5) The loss having arisen through the general depreciation of property, from subsequent and unforeseen causes, no liability attaches to the defender."

The Lord Ordinary (M'LAREN), after hearing counsel in the procedure roll, dismissed the action. The pursuers having reclaimed to the Second Division of the Court, their Lordships on June 29, 1886, recalled the Lord Ordinary's interlocutor, and allowed a proof before answer [vide 13 R. 1036, and 23 S. L. R. 760].

The proof established the facts above narrated, and its import otherwise appears from the opinions of the Judges, and especially from the opinion of Lord Shand.

The Court, after hearing argument for the parties on 23rd December 1887, appointed the cause to be argued before seven Judges.

The pursuers argued-The security was a bad one for the following reasons. It was over uncompleted buildings, erected on ground feued from the City of Glasgow Improvement Trustees, who had swept away the old streets and the old population. The buildings were put up by a spirit-dealer as a speculative venture. No independent valuation was taken, the trustees relying on the valuation of the borrower, which was at most a mere estimate when it was got. The matter was taken up and concluded with undue haste. There was an enormous ground annual. The cost of the buildings was less than the sum lent on them. There was never any real security at all. For these reasons the security was a bad one, and the parties responsible for it were liable, conjunctly and severally, to make good the loss on it to the trust. (1) As regards the liability of the trustees-There were only three cases bearing on the point in the law of Scotland. These were Forsyth, Jan. 28, 1853, 15 D. 345; Millar's Factor v. Millar's Trustees, November 2, 1886, 14 R. 22; Wyllie Guild v. Glasgow Educational Endowment Board, July 16, 1887, 14 R. 944. They showed three things(1st) That trustees who advance trust funds on a borrower's valuation alone are liable for loss; (2d) that an indemnity clause, such as the trustees had here, will not protect them against want of due diligence; (3d) that buildings in course of erection are not a security on which to lend trust funds. There were, however, in the law of England a number of cases on the point, where the trustees had been held personally liable. Jones v. Lewis, June 26, 1849, 3 De G. & S. 471, the security was unlet houses, as also in Waring v. Waring, December 4, 1852, 3 Irish Ch. Rep. (N. S.) 331, reversing a decision on February 26, 1852; Lewin on Trusts, p. 325. In Drosier v. Brereton, December 2, 1851, the houses on which the loan was made were out of repair, and there was an indemnity clause. In Stretton v. Ashmall, November 7, 1854, 3 Drewry, p. 9, the

In