OUTER

These rules have the force of law, and if a HOUSE. decree is pronounced contrary to the rules, Wilson v. then I have no doubt that it is illegal and it Gorman. may be suspended in this Court.

December 6,

1923.

Rule 22 requires the defender, if he intends to state a defence, to enter appearance in the statutory form before the expiry of the inducia and exhibit the service copy of the writ to the sheriff-clerk.

The complainer fulfilled this rule.

The sheriff-clerk, in terms of Rule 34, must then enrol the cause for tabling on the first Court day occurring after the expiry of the induciæ.

As the date of the citation appended to the service copy of the writ bore to be the 6th of September the cause was enrolled for tabling on the 15th September. The respondent, however, did not appear and table the action and it dropped from the roll in terms of Rule 35. The complainer made no application for protestation.

Rule 35 provides: "An action which has not been tabled, and in which protestation has not been craved, shall drop from the roll, but within three months the Sheriff may direct it to be again enrolled for tabling under such conditions as to notice, or re-service, or expenses, or otherwise as he shall think fit.'

In the present case this rule was not complied with. It implies that in a case which has been dropped from the roll, an application shall be made to the Sheriff, in order that he may direct it to be again enrolled."

The respondent's agent-probably through an innocent mistake-made no such application. If he had, I am convinced that, in the circumstances, the Sheriff would have felt bound by

the rule either to have ordered re-service of the

writ or notice of the application on the complainer. I think it is clear from the terms of the rules that a defender who has entered appearance to defend is entitled to know the date at which the cause is to be enrolled for tabling.

The course adopted by the respondent's agent was, in my view, irregular and contrary to the rules. He exhibited the execution of the citation to one of the officials in the process office," and the case appeared on the roll on the 29th September. I think this procedure was illegal and is not warranted by any of the rules in the statute. In result it prevented the complainer from knowing or having notice of the enrolment for tabling, and thus deprived him of the opportunity of stating his defence to an action which he had entered appearance to defend. I think, accordingly, that the decrees were obtained illegally and contrary to the rules of the statute, and I shall grant the prayer of the note.

Mrs Maria Irvine or Fraser, of 23 Great Western Place, Aberdeen, daughter of the deceased William Irvine, who resided latterly at Durno, Pitcaple, Aberdeenshire, raised this action against John Wight, bank agent, Durno, Chapel of Garioch, Aberdeenshire, as general disponee and sole executor and legatee of the said William Irvine under the pretended testamentary settlement after mentioned, and also against Mrs Jane Gilmour or Irvine, wife of George Irvine, a son of the said William Irvine, and also against the whole next-of-kin of the said deceased William Irvine. The conclusions of the action were, inter alia, for the production of the said pretended testamentary settlement bearing to be executed by the said William Irvine on 23rd January 1923, and for its reduction. The action was defended by the said John Wight, Mrs Jane Gilmour or Irvine, and George Irvine.

The pursuer averred, inter alia, as follows:

COND. 2. The said William Irvine died on 5th April 1923, aged eighty-one, at Durno, Pitcaple, aforesaid, the residence of his son, the defender George Irvine.

The parties resident in said house for some time prior to said date, and in particular on or about the

date of execution of the after-mentioned pretended testamentary settlement, were, in addition to the said deceased, the said George Irvine and his wife, the said Mrs Jean Gilmour or Irvine.

COND. 3. For at least one-and-a-half years prior to his death the said William Irvine had been in illhealth and weak in his mind. His condition was gradually getting worse until about the middle of January 1923, when he fell ill and was confined to William Irvine had become very feeble. He suffered bed. During the said one and a half years the said from weakness of intellect which was gradually increasing. He was very feeble and frail bodily, and absent-minded. He was affected by chronic bronchitis and his heart was in a very bad condition.

COND. 4. On 4th April 1921 the said deceased William Irvine had executed a will in conformity with instructions given by him to Mr Henry John Gray, advocate, Aberdeen, under which he appointed his son, the defender the said Edward Irvine, to be his sole executor. [Here followed a summary of the terms of the will.]

COND. 5. The said George Irvine and his wife, the said Mrs Jane Gilmour or Irvine, knew that the said William Irvine had executed said will and also were aware of its terms. They considered when the said William Irvine became seriously ill in January 1923 that he was on his death-bed and conceived the scheme of procuring from him another will, well knowing that were the said William Irvine in full possession of his faculties they would not have succeeded in getting him to make a testamentary settlement more in their favour than the one previously executed by him on 4th April 1921. Taking advantage of the mental condition and physical infirmity of the said William Irvine, and in furtherance of said scheme, the said George Irvine and his wife, the said Mrs Jane Gilmour or Irvine, caused to be prepared another will for the signature of the said William Irvine, and on or about 23rd January 1923, while the said William Irvine was as they well knew in a semi-conscious state and incapable of giving any directions of a testamentary nature, induced the said William Irvine to sign said newly prepared will, the said pretended settlement referred to in the summons. [Here followed a summary of the terms of the pretended will.] This will was, it is believed and averred, prepared without consulting a solicitor and without medical advice being resorted to. The doctor in attendance on the said William Irvine, viz.

Dr Lyall, Yale, Wartle, who visited the deceased regularly from 22nd January 1923 until his death, was not consulted as to Mr Irvine's fitness to make a will or give instructions for the preparation thereof, and was in entire ignorance of the fact that any such acting was contemplated. The said will bears to be witnessed by the son and daughter of the defender John Wight.

The detailed circumstances under which the will under reduction came to be

signed by the deceased William Irvine are outwith the pursuer's knowledge. As stated, however, the said William Irvine was, at the date which the said will bears, viz. 23rd January 1923, quite unfit by reason of mental and physical weakness to give any directions of a testamentary nature. Had the defender Wight consulted medical advice before taking instructions to prepare or tendering the said will for signature, he would have been informed of this.

It is believed and averred that any statements made by the said William Irvine to the defender Wight on his visits in January were repetitions of statements previously dictated to him by the said George Irvine and Mrs Jane Gilmour or Irvine, and in no way represented the true wishes of the said William Irvine.

COND. 6. Said will or settlement dated 23rd

January 1923 is not the deed of the said William Irvine. At the date when the said pretended settlement was executed, and for some time prior thereto, the said William Irvine was not of a competent disposing mind. He was incapable of understanding the nature, meaning, or purport of the said document, and did not in fact understand it or validly authorise

Exr.

The defenders pleaded, inter alia, that the Irvine's pursuer's averments were irrelevant and that the action ought to be dismissed.

The pursuer tendered two issues for the trial of the cause, the first raising the question of the testator's mental capacity, the second being an issue of facility and circumvention.

The case was heard in the roll for the adjustment of issues on 11th December 1923, when the following authorities were referred to: Morrison V. Maclean's Trs, 1862, 24 D. 625; Spring v. Martin's Trs., 1910 S.C. 1087; and Horsburgh v. Thomson's Trs., 1912 S.C. 267.

On 13th December 1923 the Lord Ordinary refused the proposed issue of facility and cir

cumvention.

Lord Morison.-The pursuer has, in this action of reduction, tendered two issues for the trial of the cause-the first raising the question as to testator's mental capacity, and the second raising an issue of facility and circumvention. It was conceded that the pursuer's case was relevantly stated as regards the first issue, but it was contended by the defenders that there were no relevant averments in support of the second.

Mr Brown pointed out the fundamental distinction between the two issues and argued, on the authority of Spring v. Martin's Trs. (1910 S.C. 1087), that they raised such distinct, and indeed inconsistent, issues in fact, that a verdict on both issues could not stand. He contended that the pursuer nowhere alleged that the testator was facile at any time and that it was not said on record that he was liable to be easily influenced by Mr and Mrs Irvine, or that they did influence the testator or obtain the will from him either by impetration or by exercising their influence unfairly over him while his mind was weak.

Mr Gilchrist, on the other hand, contended that the use of these expressions in a summons of this kind were mere words of style.

I do not agree with this view. A case on the second issue is alternative to that upon the first. In order to constitute a relevant case for the purposes of the second issue, I think it is necessary for a pursuer to state distinctly that at or about the date of the alleged will the testator-although not mentally incapacitated -was weak and facile in his mind and easily imposed upon, and that someone had taken an unfair advantage of this facility and impetrated the deed from him.

This is not only not alleged by the pursuer on record, but the case as averred is inconsistent with these suggestions. At or about the time

December 13, 1923.

Fraser v.

December 13, 1923.

OUTER when the will in question was executed, the HOUSE. testator's mental condition is thus described The said William Irvine was at the date which Irvine's the said will bears, viz. 23rd January 1923, Exr. quite unfit by reason of mental and physical weakness to give any directions of a testamentary nature (Condescendence 5); and also in Condescendence 6: "The said William Irvine was not of a competent disposing mind. He was incapable of understanding the nature, meaning, or purport of the said document, and did not in fact understand it or validly authorise its preparation. He was, as stated, in a condition of the greatest weakness and infirmity both of body and mind on the date of its alleged execution.'

Charles Frederick St Clair Anstruther Thomson, Esq., of Charleton, in the county of Fife, heir of entail in possession of the entailed lands and estates of Charleton and others in certain parishes in the county of Fife, presented a petition to the Lord Ordinary on the Bills on 13th May 1919 craving authority to sell the said entailed lands and estate, to apply the prices realised by such sale or sales for the payment of debts secured upon portions of the said lands and estates, and to apply the surplus money for the purchase of other lands contiguous to the said lands and estates. The deed of entail and settlement of the said lands and estates was made and executed by John Thomson, Esq., of Charleton, in favour of himself and the heirs male of his body, and was dated 27th January 1776 and registered in the Register of Tailzies on 24th November and in the Books of Council and Session on 17th December, both

1781.

Ordinary raised a question as to the competency or necessity of registering in the Register of Tailzies the dispositions of the lands purchased with the surplus money after payment of debts. The report bore:

If the proposed purchases are sanctioned by the Court a question will arise as to the actual terms of the dispositions, dependable upon the competency or necessity of the dispositions being registered in the Register of Tailzies. The petitioner's agents contend that such registration is neither competent nor necessary, and they have asked the reporter to bring the matter under the notice of the Court, as either way. They point out that the Entail Act of in their view there can be found no direct authority 1882 gives no direct instruction to record in the Register of Tailzies such as is provided by the 37th section of the Rutherfurd Act with regard to a contract of excambion. The direction in the 1882 Act, section 23 (6), reads: "the purchased lands shall be settled in conformity with the subsisting destination." No assistance is given by any of the other Entail Acts or by section 67 of the Lands Clauses (Scotland) Act. In the case of Lumsden's Trs. v. Lumsden (1917 S.C. 579), the Inner House indicated that the effect of the 1914 Entail Act was to end the Register of Tailzies. The petitioner's agents therefore submit that it is not competent to register the dispositions now in question in the Register of Tailzies. They also further submit that, even if competent, such registration is unnecessary to protect the new lands brought under entail. The dispositions will be taken to the petitioner and the heirs substituted by the deed of entail, and they will contain by reference the whole irritant and other clauses of the deed of entail. The petitioner's agents further contend that after infeftment by registration for preservation and publication neither the petitioner nor any subsequent heir of entail nor any creditor of any such heir can deal with the subjects brought under the entail except on application to the Court or in consequence of some future Act of Parliament dealing with entailed estates. Registration in the Entail Register will not, they submit, make the settlement of the existing destination any stronger or improve the position of the subjects embraced in the dispositions. If your Lordship should be of opinion that the effects. of the Entail Act or otherwise will be that it is not competent nor necessary to register in the Register of Tailzies, and that registration for preservation and publication is not sufficient to protect the rights of future heirs, the petitioner's agents suggest that the dispositions may be taken in names of the trustees to be appointed by your Lordship to hold the Government stock in which the balance of the consigned moneys is proposed to be invested. The reporter accordingly submits this point for your Lordship's consideration.

It humbly seems to the reporter that registration in the Register of Tailzies is necessary in order to bring the lands, authority to purchase which is prayed for, under the fetters of entail, and that for the following reasons:

it shall be effectual as a settlement of strict entail. It is true that the Act of 1882, section 23 (6), does not prescribe registration in the Register of Tailzies, but looking to the fact that such registration is in general necessary in order to impose the fetters of entail it does not seem to the reporter that the silence of the 1882 Act on the subject can be construed as equivalent to a dispensation from the necessity of registration. The reporter would refer your Lordship to the Lands Clauses Act of 1845 (8 Vict. cap. 19), sections 67 and 73. Section 67 provides for the purchase-money of lands taken under the Act from, inter alios, any heir of entail being paid into bank (if exceeding £200), to the effect that the same may be applied, under the authority of the Court of Session, to one or more of the purposes therein specified, one of which is in the purchase of other lands to be settled upon the same heirs and in the same manner as the lands in respect of which the consigned money was paid had stood settled. Section 73 provides that if the consigned money shall be laid out in the purchase of lands to be held under entail the conveyance shall be recorded in the Register of Tailzies. It seems to the reporter that this proviso would not have been made if such registration was not necessary in order to impose the fetters on the new lands, and if there is such a necessity with reference to land purchased and added to an entail in virtue of the provisions of the Lands Clauses Act, it cannot be supposed that there is no such necessity with reference to land purchased and entailed under the 1882 Act, unless section 23 (6) of that Act is to be read as dispensing by implication with the necessity of registration, which, as already indicated, the reporter does not think can be the case. The reporter would respectfully call your Lordship's attention to the Entail Act of 1882, section 2, which provides that all the Entail Acts (including the Acts of 1685 and 1882) shall for all purposes and to all effects be read as one Act.

The reporter has endeavoured to ascertain the practice in the matter now under consideration, but he has not been able to discover any case in point, except the case of petition Guthrie of Guthrie for order of sale, the final interlocutor in which is dated 16th May 1922. In that case, which is parallel with the present one, registration in the Register of Entails was not ordered. If your Lordship approves of the reporter's views as to the necessity of tailzie registration the two dispositions of the proposed purchases will each have to contain a clause consenting to registration in the Register of Entails.

On 13th December 1923 the Lord Ordinary on the Bills granted the petition, and held that registration in the Register of Tailzies of the dispositions of the lands purchased with the surplus money after payment of debts was both competent and necessary.

Lord Murray. In this petition for an order of sale certain entailed estates have been sold under authority of the Court, and the price thereof has been consigned subject to the orders of the Court.

The Court is now moved to authorise the

BILL

application of part of the consigned moneys in the purchase of certain lands which lie CHAMBER. contiguous to the petitioner's entailed property, Anstruther the dispositions of the same to be taken in Thomson conformity with the subsisting destination -Petr. (Entail Act, 1882, section 23 (6)).

I am prepared, on a consideration of the reports No. 58 and 59 of process, to grant the necessary authority.

A question has, however, been raised for the consideration of the Court as to whether it is now competent or necessary that the dispositions of the lands so to be acquired should be registered in the Register of Tailzies. I am of opinion that such registration is competent and necessary, and this in order to subject these lands to the fetters of the entail.

It is not disputed that such registration under the Act of 1685 is an essential provision of a valid entail, but it is argued that no such registration is required in a case where entailed estates have been sold under orders of the Court, and the consigned moneys fall to be applied in whole or in part in the purchase of other lands to be entailed on the same series of heirs. It is further argued that since the passing of the Entail Act of 1914 such registration is not now competent.

The series of entail statutes do not throw much direct light upon the point now raised; it may be for the reason that the statutory Powers are more concerned with the freeing of estates from entail fetters. It may be noted, however, that in the case of contracts of excambion entered into by heirs of entail under the authority of statute, the statutes, either expressly or by clear implication, provide that dispositions of the substituted lands are to be registered in the Register of Tailzies. Reference may be made to 6 & 7 Will. IV. cap. 42, section 3; 1 & 2 Vict. cap. 70, sections 1 and 3; 4 & 5 Vict. cap. 24, and 11 & 12 Vict. cap. 36, sections 5 and 37.

Where entailed estate has been acquired in virtue of the powers of the Lands Clauses Act and the price falls to be applied in the purchase of lands to be re-entailed, the statute plainly tion of the lands so settled in the Register of contemplates the registration of the disposiTailzies (Act of 1845, sections 67 and 73). I see nothing in the terms of section 23 of the Entail Act of 1882 which leads to any contrary conclusion.

The only other statute to which I was referred was the Entail Act of 1914. This statute, by section 2, declares that the Entail Act of 1685 shall not apply to and prohibits the recording in the Register of Tailzies of any deed dated after the passing of the Act. By the first proviso to this section the date of any operative Act of Parliament, deed, or writing

December 13,

1928.

Tutrix-Power to complete title to heritage-Mother, as tutrix of her pupil son, petitioning for authority to complete title, with a view to sale, to heritage to which the child had succeeded as heir-at-law upon the death of his father intestate Guardianship of Infants Act, 1886 (49 & 50 Vict. cap. 27), section 12 -Pupils Protection Act, 1849 (12 & 18 Vict. cap. 51);

sections 7 and 25—Authority to complete title refused as unnecessary.

Mrs Edith Watson or Ferrier, as tutrix and administratrix-in-law of her pupil son, | Thomas Gibson Watson Ferrier, presented a petition in which she craved special power to make up and complete title in his name to certain heritable subjects to which he had succeeded as heir-at-law of his father, who died intestate. It was stated in the petition, inter alia, that the estate of the deceased was not solvent; that an offer had been received for the property, which the petitioner considered as adequate, and that the purchaser had stipulated that the authority of the Court should be obtained as craved.

On 19th December 1923 the Lord Ordinary (Murray) refused as unnecessary the crave for power to complete title.

Lord Murray. In this petition the petitioner, who is the mother and, in virtue of the Guardianship of Infants Act, tutor and administratorin-law of her pupil son, craves power to make up and to complete titles in the name of the pupil to certain heritable subjects to which the pupil is entitled as heir-at-law of his deceased father. It was explained that she proposes to complete title, if power be granted, by special service in the usual way. The circumstances

in which the petition is presented are explained in the petition, the petition being the first step towards a proposed sale of the heritage. There is no crave for power of sale.

The provisions of the Consolidation Act or the Trusts Act in regard to obtaining warrant to complete title do not appear to apply to the case of a tutor and administrator-in-law, which is the case in hand. (See Consolidation Act, 1868, section 3, "Judicial Factor"; Trusts Act, 1921, section 2.)

Under the Guardianship of Infants Act, 1886, the statutory guardian is in the position of a tutor (see section 12), and by virtue of section 25 of the Pupils Protection Act, tutors, albeit they are not factors, are entitled to the powers conferred upon factors by section 7 of the statute. These powers, to obtain which special provision is made by application to the Court through the Accountant, are, however, concerned only with certain extraordinary powers, and, in my opinion, the section has no application to the present case. For the completion of title in name of his ward by the tutor is an ordinary act of administration, and the common law not only clothes the tutor with power to him do this at his own hand, but imposes upon in general the duty to do so. Indeed, for breach of this duty, the tutor is liable at common law if the ward thereby sustains loss. That the tutor has such power at his own hand at common law is either expressly stated or is implicit in the institutional writers (Stair, I. vi. 18; Erskine, I. vii. 24; Bell's Comm., Vol. I. p. 129), and this is also laid down, with citation of authority, in Lord Fraser's book on Parent and Child (3rd ed., p. 621).

Though the practice of the Court can hardly be said to have been entirely uniform, the general principle is clearly laid down in the judgment of the Lord Justice-Clerk in Graham (1852, 14 D. 357). In that case a tutornominate presented a petition for authority to complete title in the person of his ward, and thereafter to sell. The Court refused the prayer and declined to pronounce an interlocutor, the Lord Justice Clerk observing: "I know of no case where the Court have acceded to such an application in the case of tutors-nominate. In fact they do not require such powers. After reference to certain authorities the Lord Justice Clerk continued: In all these cases the applications were made by factors loco tutoris who stand in a position entirely different from tutors - nominate. These last are not officers of Court. Their powers are different from those of factors, and we should alter the whole law as to the powers of tutors, were we to give them powers such as are now asked, whenever they choose to apply for them.

66

They do