Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 NOBILE OFFICIUM.

Mrs Carstairs' Trustees, Petitioners

Date: 28 November 1775

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In another case, in November 1775, they also refused to interpose. For Mrs Carstairs having made a settlement upon three gentlemen, in trust for several others, the Trustees accepted ; but one of them, a merchant, having, from age and infirmity, retired from business, declined to act farther; so did the other two, being clergymen, and unacquainted with business. Whereupon they all, trustees and those interested, applied to the Court, by petition, to name other trustees, or at least factors loco tutorum, in their room. The Lords, 28th November 1775, ordered the petition to be intimated on the wall, and allowed the petitioners to give in a memorial, and to print the trust-deed for the consideration of the Court. From the deed it appeared that the trust was to the trustees and the survivor, without power of choosing others. So that it fell by their death. But, as yet, they were all alive, and had accepted. The Lords therefore refused to interfere, or even to name a factor, leaving them to extricate the trust as they best could.

The case of Lord Monzle and Others, trustees appointed by Mr Campbell, minister at Weem, collected by Lord Kilkerran, p. 518, is a famous case, where the Court, ex nobili officio, interposed to prevent a settlement on trustees being evacuated by the death and failure of the quorum. See Principles of Equity, p. 53. This was a settlement for public pious uses. They did the same where the trustees refused to accept, with regard to a sum of money mortified by Mi Gilbert Ramsay to the corporation of New Aberdeen, to be applied for burses to students of divinity in the College. This appears from the papers in the case of Campbell. And the Magistrates having refused to accept, the Lords appointed Sir Alexander Ramsay, to whom the defunct had given the presentation of the bursars, to manage and administrate the mortified sum, and name factors for uplifting the annualrents and apply them in terms of the will.

In Lady Cunningham's case, the two Trustees, Sir John Cunningham and Lady Dalrymple refused to accept, 22d January 1758. The settlement was irrational, and all concerned wished to have it away. The Lords were called by the settlement, on failure of the trustees. A challenge was brought in support of the deed, and, though only a mock-fight, the Lords, by their first interlocutor, found that the settlement had not fallen. But, on a reclaiming bill, they altered, and found that it had fallen.

See Principles of Equity, p. 54; also the case Campbells against Campbell, mentioned Principles of Equity, p. 55 and 122.

They seem to make a distinction between deeds for private and for public uses.