they regard those printed by the reclaimers as insufficient or misleading. The reclaimers have no right to impose that burden upon the respondents. In my opinion the reclaimers must print and box the whole document or leave it alone.

That the reclaimers are entitled to print and box No. 304 of process if they are so minded I have no doubt at all. The document, as I have said, is included in the inventory of productions put in evidence by them, and I am disposed to think that it was rightly included there. For I observe that the volume was put without objection to Dr Oberlander in cross-examination. In these circumstances, while the reclaimers may not print a truncated edition of No. 304 of process, I see no warrant for forbidding them, if they are so disposed, to print and box it as a whole.

At the same time I cannot make it too clear that the learned Dean of Faculty will not be precluded by anything which we decide to-day from arguing at a later stage of the case as to the extent to which the Court can competently consider the contents of No. 304 of process. In other words, permission to print and box that document is in no way to be construed as a licence to use it. With regard to that question the respondents' rights remain intact. Probably they reserve themselves. But in a matter of this importance I desire to make express what is probably implied.

I propose, therefore, to your Lordships that the application should be disposed of in the sense which I have suggested.

Lord Ormidale.-I agree with your Lordship that the crave of the note should be granted. The note proceeds on the recital that the defenders and reclaimers propose to print in an appendix to the reclaiming note, and as part of the evidence to be laid before the Division, excerpts from the bound volume of the House of Lords case and appendix in an appeal in an action in the High Court of Justice in England, the excerpts consisting of certain portions of the pleadings of parties in the appeal and certain portions of the shorthand notes of the evidence led at the trial. The respondents object that they are not evidence in the present action. Without either affirming or rejecting that proposition stated in so absolute a form, the procedure proposed by the reclaimers is, in my opinion, incompetent in respect, first, that the excerpts are not entered in the inventory of productions put in evidence by the reclaimers at the trial; second, that they have not even been lodged in process; and third, that they have not been considered by the Lord Ordinary, questions relating to their contents having been disallowed by him as incompetent. The bound

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1928.

volume from which they have been excerpted is 2ND DIV. No. 304 of process, and is entered in the inven- British tory of productions put in evidence by the Thomsonreclaimers, without objection being taken by Houston the respondents. The latter contended before Co. Ltd. v. us that No. 304 had not been proved. I express worth no opinion as to that. It is a question not Peebles relevant, in my judgment, to the issue presented & Co. to us at this stage, and is in no way affected by December 21, the judgment which your Lordship now advises the Court to pronounce. But the mere fact that the selected passages-I do not use the term in any invidious sense-are to be found in No. 304 supplies no warrant, in the circumstances I have referred to, for printing them as a separate entity in the appendix which the reclaimers propose to box. In effect as well as in form they constitute a new production. The question we are now deciding has not arisen very frequently in practice, but the cases cited by the Dean, without definitely instructing any general rule, afford illustrations at least of the Court's declinature to receive any writing or other production which has not already been considered by the Lord Ordinary and presented to him in the identical form in which it is tendered in the Inner House.

Lord Anderson.-The reclaiming note in this action was sent to the roll on 17th October 1923, and the case will come on for hearing next term. In view of the hearing the reclaimers propose to print and box to the Court a certain appendix. The respondents object to this being done, and the prayer of their note is that the Court should not allow the said appendix to be boxed to the Court or received by the clerk of Court.

66

The reclaimers have not moved to be allowed to answer the averments contained in the note. These must therefore be taken pro veritate, and the note must be disposed of on the footing that its averments accurately describe what is proposed to be done. In the note the respondents aver that the reclaimers have intimated to them their intention of printing in an appendix to the reclaiming note and as part of the evidence to be laid before this Division excerpts from the bound volume of a House of Lords case and appendix thereto in a pending cause between the respondents and a company named Duram Ltd. The subject-matter of the litigation is a patent belonging to the respondents which is a different patent from that which forms the subject-matter of this action. The respondents go on to aver in their note that the excerpts which the reclaimers propose to print consist of certain portions of the pleadings of parties in the foresaid House of Lords appeal, and of certain parts of the shorthand notes of the evidence led at the trial of that action. None

66

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1923.

2ND DIV. of the said excerpts were spoken to by any of British the witnesses in the present action, and they Thomson- were in no way made part of the evidence Houston therein." The legal basis of the prayer of the Co. Ltd. v. respondents' note is that these excerpts are worth not evidence in the present action." Peebles The bound volume containing the said House & Co. of Lords case is No. 304 of process. In the December 21, course of the proof the reclaimers' counsel attempted to use that case in this way. In cross-examination of one of the respondents' witnesses named Dr Oberlander a question was asked as to certain evidence given in the Duram case by a witness named Swinburne who had been a witness for the respondents. The question was objected to and the objection sustained. The next question put was: "(Q.) I shew you No. 304 of process, being the record of the evidence in the English Court, and direct your attention to certain passages. This line of evidence was disallowed by the Lord Ordinary. The object of the reclaimers in printing the proposed appendix seems to be to utilise at the hearing the evidence in the English case although they were debarred from doing so in the proof.

It remains to be considered whether our procedure sanctions this proposal. By our practice in proofs it is necessary that productions which it is proposed to use in the proof should be lodged in process with an inventory or inventories of these productions. The Act of Sederunt of 31st May 1902 provides that such productions must be lodged on or before the fourth day prior to the day appointed for the proof. The provisions of this Act of Sederunt may be relaxed by the Court on cause shewn. It does not follow that all productions which have been lodged in process are put in evidence as part of the proof. At the conclusion of the oral proof and before the hearing on evidence each party must put in evidence, along with an inventory, all productions which are to be founded on as part of the proof. No production may be put in evidence which is not probative or which has not been proved by witnesses or admitted by consent of counsel. No. 304 was put in evidence by the reclaimers prior to the hearing on evidence. We are not concerned, however, with No. 304 of process, but with a proposed new production.

In my opinion the prayer of the note falls to be granted for a variety of reasons.

In the first place, the proposed appendix has never been in process at all. The proposed excerpts, it is true, are all contained in No. 304, which is in process, but the contemplated appendix is really a new production, being certain parts of No. 304 divorced from the context and assembled as an ex parte compilation. If this view is sound, what is proposed to

be done seems struck at by the cases of Williamson (7 D. 842) and Grierson (1912 S.C. 173). In the next place, assuming that the proposed appendix has been in process in gremio of No. 304, it has never been put in evidence. The Lord Ordinary did not have it before him when considering the proof. This is fatal to its production now (Shedden, 8 D. 1057). Again, the proposed excerpts, as the respondents aver in their note, have never been proved. Presumably, the excerpts will consist of those parts of the appeal case which the Lord Ordinary interpelled the reclaimers from attempting to prove. In consequence, these excerpts cannot now be used as evidence (Galbraith, 5 S.L.T. 164).

This

Finally, the reclaimers are responsible for the accurate and complete printing of the productions. No. 304 of process is a document which, rightly or wrongly, was allowed to be put in evidence at the close of the proof. having been done, the reclaimers are probably entitled to print and box No. 304. But they will not be allowed, in the absence of consent, to print parts of the document only. They must print the whole document, or so much thereof as satisfies the respondents. The reclaimers may, therefore, if they desire to do so, print and box the whole document No. 304 of process quantum valeat. It must, however, be clearly understood that, if the reclaimers print and box this document, it does not follow that they will be entitled to use it as evidence in this case, or indeed for any other purpose. On the other hand, nothing we are deciding precludes the reclaimers from maintaining, if they see fit to do so, that the Lord Ordinary was wrong in excluding the evidence which the reclaimers desired to obtain from Dr Oberlander. This is a point which does not require the proposed appendix or the appeal case itself for its determination. All we decide is that we must interpel the reclaimers from boxing to the Court the proposed appendix and the clerk of Court from receiving it if presented.

Counsel for Pursuers, The Dean of Faculty (Sandeman, K.C.), Macmillan, K.C., Normand; Agents, Webster, Will & Co., W.S.-Counsel for Defenders, Moncrieff, K.C., Burn-Murdoch; Agents, Davidson & Syme, W.S.

W. R. G.

18.

OUTER HOUSE.

(Lord Ashmore.)

20th December 1923.

Glasgow's Trustees v. Garcia's Representatives.

Succession

- Will-Construction-Substitution-Trustee

directing sum of £10,000 to be invested and income paid to A-Upon A's death after B became twentyone whole sum payable to B-Declaration that leaving lawful issue and without disposing of the sum "the said sum shall fall into the residue of my personal estate subject always to the life interest" of A, "until the extinguishment whereof the said sum is to remain invested " -Further declaration that the above declaration was not to "affect the absolute vested interest . in the said sum" given to B-A dying in 1891-B becoming insane in 1874 at age of nineteen and

if B died after attaining twenty-one without

dying in 1921 unmarried and intestate without having ever recovered-Capital of £10,000 retained by trustees who provided for B's maintenance-Held that the substitution was operative, was not evacuated by reason of the failure of the trustees to pay over the £10,000 to B or someone on his behalf immediately

upon A's death, and that the £10,000 fell on B's

death into residue.

Douglas Kay Mitchell and John Robertson, writers in Glasgow, the surviving trustees acting under the last will and testament of James Glasgow, senior, sometime resident in Gibraltar, brought an action of multiplepoinding and exoneration as pursuers and real raisers in which claims were lodged by (1) the Lord Advocate on behalf of the Crown as ultimus hæres, (2) Mrs Maria Josefa Gourdie, residing at Blantyre, Lanarkshire, the representative of the late James Glasgow, junior, a reputed and adopted son of James Glasgow, senior, and (3) John Mackintosh, merchant, Gibraltar, and others, the representatives of the residuary legatees under the late James Glasgow, senior's, will.

The facts of the case and the directions in the will which were the subject of legal construction are fully set out in the opinion of the Lord Ordinary (infra). The fund in medio was a sum of £10,000 which the testator bequeathed subject to certain conditions to his son James Glasgow, junior.

The case was debated in the Procedure Roll and on 6th December the Lord Ordinary made avizandum.

On 20th December 1923 the Lord Ordinary (Ashmore) issued a finding that on a sound construction of the will the sum of £10,000, in which James Glasgow, junior, had acquired a vested right, fell on his death into the residue of the truster's personal estate; and subject to this finding continued the cause.

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Lord Ashmore. This action of multiple- OUTER poinding and exoneration has been brought at HOUSE. the instance of the trustees acting under the Glasgow's will of the truster, the late James Glasgow, Trs. v. senior, merchant, Gibraltar, in order that Garcia's questions which have arisen in connection with Reps. the trust estate may be judicially determined.

The truster, who was a Scotsman by birth, went to Gibraltar in 1814 and died there in 1863. He was never married. His will, executed in Gibraltar, is dated 1st April 1859; it is in the English form, and by it the truster conveyed to trustees his whole estate for various trust purposes, and he appointed his trustees to be guardians of his reputed and adopted son, James Glasgow, junior, during his infancy.

The only questions which came up for decision at this stage have reference to a sum of £10,000 bequeathed by the truster, as to which conflicting claims have been made.

The truster directed his trustees to invest £10,000, and made various provisions for the payment of the income of the fund to a lady, described as his friend Ramona Garcia, and to or for behoof of his reputed and adopted son, James Glasgow, junior. consideration,

The questions now under however, refer only to the principal and not to the income of the £10,000.

On that subject the will gives directions applicable to different conditions and circumstances which the truster contemplated might arise; but, in the events that happened, the contentions of the parties in the present competition relate mainly and directly to only three of the truster's directions.

The three directions referred to read as follows:

"1. Upon trust to pay the said sum of ten thousand pounds so invested, and the whole produce thereof to my said reputed and adopted son James Glasgow immediately after the decease of the said Ramona Garcia, if she die after the said James Glasgow shall have attained the age of twenty-one years, for his use and behoof:

2. And I further declare that if my said reputed and adopted son, James Glasgow, shall die after attaining the age of twenty-one years without leaving a child or children lawfully begotten him surviving, and without disposing of the said sum of ten thousand pounds so bequeathed to him in his lifetime or by will, deed, or otherwise, that the same, or such part thereof as may remain undisposed of, shall fall into the residue of my personal estate, subject always to the life interest in the said sum of ten thousand pounds hereinbefore given by me to the said Ramona Garcia, until the extinguishment whereof the said

December 20,

1923.

beyond all doubt (Johnston v. Greigs, 1831, 9 S. 806, per Lord Fullerton at p. 827; 1833 (Greig v. Johnston), 6 W. & Sh. 406; Lawson v. Imrie, 1841, 3 D. 1001, per Lord Fullerton at pp. 1004, 1005; M'Dowall v. M'Gill and Others, 1847, 9 D. 1284, per Lord Fullerton at p. 1290).

In my opinion the intention of the truster and the meaning of the clause, read in the light of the context, are not open to doubt; and the construction which I have put on the will seems to me to be in accordance with the ordinary and natural sense of the language used by the truster-applying, that is to say, what Lord Wensleydale called the golden rule for construing written instruments (Lord Kinnear in Turner's Trs. v. Turner, 1897, 24 R. 619 at p. 621, quoting Lord Wensleydale's opinion in Grey v. Pearson, 6 H.L.C. at p. 106). It was further contended for the Crown and for the representative of James Glasgow, junior, that in the circumstances the substitution must be held to have been evacuated. It was maintained (a) that according to the directions of the truster the trustees ought to have paid the £10,000 to James Glasgow, junior, immediately after the death of Ramona Garcia in 1891; (b) that the failure of the trustees to carry out the truster's directions ought not to prejudice the interests of those who are entitled to claim payment as representing him, and in his right in this competition; and (c) that the payment which the trustees ought to have made must be held to have been made according to the maxim quod fieri debet infectum valet.

The argument so stated for the claimants seems to me to be based on the erroneous assumption that the trustees had failed in their trust duty.

It is true that they did not make payment of the £10,000 to James Glasgow, junior; but, so far as appears, the non-payment was due not to any failure of duty on the part of the trustees, but to the unfortunate inability of the beneficiary, owing to his insanity, to take payment and discharge the trustees at any time of his life subsequent to the date of the death of Ramona Garcia.

that action by them on the lines referred to would be inconsistent with their duty to the HOUSE. truster or with their position in relation to the Glasgow's residuary legatees; and I may add that I Trs. v. think that there is room for doubt as to whether Garcia's Reps. in the circumstances a payment made to a curator bonis or judicial factor would have had December 20, the effect of evacuating the substitution created by the will.

No authority was cited by counsel for the claimants who maintain that the substitution was evacuated on the question now under consideration; but the case of M'Dowall v. M'Gill (1847, 9 D 1284) was referred to by counsel for the residuary legatees as shewing that the Court in determining whether an institute had evacuated a substitution disregarded the fact that the institute had been disabled by insanity over a long period of years from managing or attending to her own business affairs.

I think that the question in this case must be decided on general principles and that the true solution of it is that as the substitution was not evacuated it ought to receive effect according to its terms.

For the reasons which I have given I will find that on the sound construction of the truster's will the sum of £10,000 in which James Glasgow, junior, had acquired a vested right fell on his death into the residue of the personal estate of the truster; and subject to that finding I will continue the case; and I will grant leave to reclaim.

Counsel for Pursuers and Real Raisers, D. Jamieson; Agents, Morton, Smart, Macdonald & Prosser, W.S.-Counsel for the Lord Advocate, D. P. Fleming, K.C., J. Stevenson; Agents, James Ross Smith, S.S.C.-Counsel for Claimant Mrs Gourdie, Fraser, K.C., Gibson; Agents, Patrick & James, S.S.C.-Counsel for Claimants John Macintosh and Others, Chree, K.C., Gillies; Agents, Morton, Smart, Macdonald & W. G. Prosser, W.S.

HOUSE OF LORDS.

Phillimore, and Blanesburgh.)

The claimants make no averments of any circumstances calculated to create any special duty, and I do not think that as trustees under the will any obligation of the kind suggested in the argument was incumbent on the trustees. It is possible that they may have considered

19.

6th December 1923.

"Vitruvia" S.S. Company Limited v. Ropner Shipping Company Limited. Process-Pleading-Amendment of record-New ground of defence emerging at proof-New ground of defence argued, without amendment, before Lord Ordinary and Inner House On appeal to House of Lords, case remitted to Court of Session to allow amendments to record and to take proof thereon-Davidson v. Logan (1908 S.C. 350) disapproved.

1923.