Roughead v. Lord Kinnear. Nov. 16, 1912. is in such circumstances bound to continue his obligation longer than it is convenient for him to do so." That is to say, a person had gratuitously undertaken a cautionary obligation to the bank for indefinite sums for an indefinite period, guaranteeing the transactions of the bank's debtor so long as that obligation should subsist. Certain debts had been incurred for which the cautioner was undoubtedly liable, and he then said :-"I must withdraw. The guarantee is good up to this date; but I do not propose to continue it any longer for indefinite future liability, of which I know nothing"; and he was found quite entitled to do so. But that is a totally different position from the pursuer's, which is that of a person who, as a principal debtor, became bound by a fixed obligation, which was indefinite only in respect of its duration, but which, according to its own terms and legal effect, would subsist until the creditor should call up his money or the debtor should pay. I can see no reason in equity by which he should be entitled to relief from that undertaking irrespective of the terms to which it binds him. But if there were any such general or universal equity in favour of cautioners it would not apply here, because, for the reasons I have already given, the pursuer is not a mere cautioner. He is a principal debtor as in a question with the principal creditors, and he remains liable, as long as he remains a principal debtor, to pay his proportional contribution as in a question with his co-debtors. The second ground of the pursuer's argument was quite different. He said that by obtaining from the creditors assignations of the bonds to new creditors the defenders had entered into new transactions, after he had ceased to be a member of the company, by which he was in no way bound; he was bound, he argued, only to the creditors with whom he had personally contracted, and the defenders had made new obligations for him with persons of whom he knew nothing. If he had maintained upon that state of the facts that the new bonds were, so far as he was concerned, invalid and ineffectual, and that he was under no obligation as debtor in these bonds to the assignees of his original creditors, I think there might be some very obvious answers in law to that contention. But whether that would be well founded or not I do not think it necessary to determine, because that would raise a question which it would be impossible to decide in the absence of the creditors in the bonds. That is not the foundation of the pursuer's case, even if the contention were well founded in law. The plea that the transactions are new transactions, by which he is not bound, does not support the conclusions of the summons, and is not a reason for compelling the debtors in the bonds to pay their debts immediately or alternatively to make payment to the pursuer of a sum to enable him to pay the debts for them. There is no logical connection between the contention and the conclusions of the summons whatever, and his remedy would be totally different. But, although the argument to which I have just referred was pressed, the action is based on the hypothesis, not that there is no liability, but that there is liability; it is only on the hypothesis that the pursuer is liable in the bonds libelled in his summons that he can claim that the defenders should relieve him of that liability. I think the hypothesis upon which the whole case proceeds is plainly and obviously that there is a good liability Roughead v. against him. Whether that be so or not there is no relevant ground to my Nov. 16, 1912. mind for compelling the defenders to relieve him of such liability; if it be good, because it is a liability still attaching to him; and if it be bad, because White. his remedy in that case would be to get rid of the bonds altogether. I come, therefore, to the conclusion upon the whole matter that the Lord Ordinary was right in sustaining the second plea in law for the defenders, which is that the pursuer's averments are irrelevant, and that the summons should, therefore, be dismissed. LORD DUNDAS.-I agree in thinking that the interlocutor reclaimed against is right. Mr Murray, for the pursuer, complained that the Lord Ordinary had gone wrong because he proceeded wholly upon the bond of relief as finally regulating the pursuer's rights in the matter, and ignored what counsel described as the pursuer's position at common law as a cautioner for the principal debtors, his former copartners in the Association. It was to this latter aspect of the case that Mr Murray directed his able argument. The distinction suggested by counsel seems to me to be one rather of words than of substance. It is probably sufficient to point out that it is not accurate to describe the pursuer as a cautioner. He is not, and never was, a proper cautioner. He was a partner, and he retired from the partnership concern. By the terms of the articles of agreement the pursuer was entitled to withdraw from the Association without finding a substitute member to its satisfaction, in which case he would have forfeited all sums of money contributed by him to the funds of the Association, and in addition would have been bound to pay, when called upon by the Association, his proportion of any loss which it might sustain. Alternatively he might find a substitute to the satisfaction of the Association. The pursuer chose the latter of these courses. The terms upon which he should withdraw became, therefore, a matter for arrangement and consent between him and his copartners. In the bond of relief prepared by the pursuer and granted by his partners at his request, one finds what appear to be the terms upon which he and they agreed that he should retire. cannot be said that, since the bond was granted, the defenders have acted otherwise than in a lawful and normal course of carrying on their business, a course that was within their powers and must be taken to have been within the contemplation of all parties when the articles of agreement were entered into. In these circumstances I am unable to see how the pursuer can now, after an interval of years, appeal to the rights open by law to a partner who is entitled to retire from his business simpliciter without consents asked or given; still less to any right that may be available to a proper cautioner, which, as already pointed out, the pursuer is not, and never was. I have some sympathy with him in his anxiety to be finally quit of all concern or possible liability in connection with the Association; but I cannot see any sufficient ground upon which we could grant the decree sought for by the summons. I think we must adhere to the Lord Ordinary's interlocutor. It LORD MACKENZIE.—I am of the same opinion. I would only add that I think that what your Lordships have already said disposes of another Lord Kinnear. Roughead v. Lord Mackenzie. Nov. 16, 1912. point that Mr Murray argued, namely, that the pursuer was free in consequence of the death of James Ross, and the sequestration of the estate of William. Tait. This point seems to me to depend on his establishing that the rights which he has are those of a cautioner at common law. If they are regulated by the terms of the bond of relief, then this point, depending as it does on his success in establishing that his position was that of a cautioner, fails. What the Lord Ordinary has said upon this question is perfectly sound, viz., that there is no allegation that the Association is not at present duly constituted in terms of its articles, or that it is not carrying on its business in terms of these articles in a bona fide manner. Therefore, when one fully apprehends that the bonds which are libelled in the summons in this case are the original bonds upon which the pursuer became a co-debtor, I think there is nothing in this point. I confess I share with my brother, Lord Dundas, his sympathy for the pursuer in the position in which he is placed; but after careful consideration I think it necessarily follows from the whole facts of the case that his rights must be regulated by the bond of relief, and that he cannot succeed upon the very skilful argument presented by Mr Murray to the effect that his rights were not to be regulated by that bond, but emerged independently of the bond when once it was shown that he had taken the necessary steps to withdraw from the Association and to have another member substituted in his place. It would have been possible had he been able to get the consent of the Association to make a bargain in different terms; but looking to the terms of the bargain upon which he went out I think the conclusion at which your Lordships have arrived is inevitable. THE COURT adhered. ALLAN M'NEIL, S.S.C.-SOMERVILLE & WATSON, S.S.C.-Agents. No. 23. Nov. 19, 1912. Pringle's Basta. ROBERT HENRY ELLIOT AND ANOTHER (Pringle's Marriage-contract WILLIAM CHARLES ROWCLIFFE (Claude Mark Elliot Pringle's Succession-Faculties and Powers-Validity of exercise of power-Power to apportion fund among children—Appointment of liferent of part of the fund to one object of the power, and whole fee to the other object. By a contract of marriage it was provided that the trustees should hold the capital of the trust funds "as a provision for behoof of the child or children " of the marriage, divisible "in such shares and proportions" as the spouses jointly or the survivor might appoint, and failing appointment, then equally. The husband died survived by his wife and by a son and a daughter. Held that a deed executed by the surviving wife, whereby she appointed a liferent interest only in part of the trust fund to her son, and the fee of the whole fund to her daughter or the daughter's heirs, was a valid exercise of the power. THIS was a case remitted by the Honourable Mr Justice Joyce, one Nov. 19, 1912. of the Judges of the Chancery Division of His Majesty's High Court Pringle's of Justice in England, in terms of the British Law Ascertainment Trustees v. Act, 1859 (22 and 23 Vict. cap. 63), for the opinion of the First Basta. Division of the Court of Session. The questions at issue related to the marriage-contract in Scottish form entered into between Chetwode Drummond Pringle and Mrs Ellen Eliza Elliot or Pringle, his wife, and had arisen in a suit in which the plaintiffs were the trustees acting under the marriagecontract, and the defendants were (1) Claude Mark Elliot Pringle, the only son of the marriage, who was represented by a guardian ad litem; (2) Count Carlo Basta, husband of the deceased Violet Pringle, the only daughter of the marriage; (3) the children of Count and Countess Basta, who were represented by a guardian ad litem; and (4) certain assignees of Count Basta, who did not compear in the Court of Session. The facts as set forth in the case were: "1. The above-named Chetwode Drummond Pringle (hereinafter called Chetwode Pringle) married the above-named Ellen Eliza Pringle (then Ellen Eliza Elliot, and hereinafter referred to as Mrs Pringle) at Cheltenham, on 29th March 1871. "2. After the said marriage two postnuptial settlements were entered into by the spouses, viz. :-(1) a settlement (in English form, and hereinafter referred to as the English settlement), dated 23rd December 1871, and made between Chetwode Pringle, of the first part, Mrs Pringle, of the second part, and [certain trustees], of the third part; and (2) a postnuptial contract of marriage (in Scottish form, and hereinafter referred to as the Scottish settlement), dated 23rd December 1871 and 2nd January 1872, and registered in the Books of Council and Session on 20th January 1872, made between Chetwode Pringle, of the one part, Mrs Pringle, of the second part, and the said Robert Kerr Elliot (father of Mrs Pringle), of the third part. "3. By the English settlement a sum of £3000, to which Chetwode Pringle was entitled expectant upon the death of the survivor of his parents, was assigned by him to the parties thereto of the third part as trustees, and settled upon trust to pay the income to Chetwode Pringle for his life, and after his death to Mrs Pringle for her life, and after the death of the survivor of them, as to both capital and income, upon trust for" the children of the marriage. "4. By the Scottish settlement, and for the consideration therein mentioned, the said Robert Kerr Elliot (now deceased) bound himself during his life to pay to his daughter Mrs Pringle an alimentary annuity of £100 sterling during the joint lives of himself and Mrs Pringle, and he further bound and obliged himself and his heirs, executors, and successors, to pay to [certain persons] as trustees for the purposes thereinafter mentioned the sum of £3000, at the first term of Whitsunday or Martinmas after his death"; and Mrs Pringle granted a disposition of acquisita et acquirenda in favour of the trustees. "5. By the Scottish settlement it was declared that the said sum of £3000, and the estate, means, and effects thereby conveyed should be held by the trustees thereof for the following purposes, viz. :(First) to pay the yearly interest, dividends, and produce, after deduction of the trust expenses, to Mrs Pringle during her lifetime exclu 1ST DIVISION. Pringle's Basta. Nov. 19, 1912. sive of the jus mariti or right of administration or other right of Chetwode Pringle or any other husband she might marry, as an alimentary income; (Second) in the event of Mrs Pringle predeceasing Chetwode Pringle, to pay the same to Chetwode Pringle as an alimentary income during his lifetime; (Third) that the trustees 'may and shall hold the capital of the said trust funds and estate as a provision for behoof of the child or children to be procreated of the marriage. divisible if there shall be more than one child in such shares and proportions, and to vest at such age or time ages or times within the limits allowed by law, as the said Chetwode Drummond Pringle and Ellen Eliza Elliot, now Pringle, may during their joint lives appoint by any joint writing under their hands, and failing such joint appointment, then in such shares and proportions as the survivor of them may appoint by a writing under such survivor's hand, and failing any such appointment, then equally among them share and share alike, declaring that the said child or children should not under the above gift in default of appointment have a vested right in his, her, or their provision until the decease of the longest liver of the said Chetwode Drummond Pringle and Ellen Eliza Elliot, now Pringle; but in case any such child shall die before having obtained a vested right in his or her provision leaving lawful issue, such issue shall be entitled to the share which would have fallen to the parent had he or she survived, which provisions shall be payable or the investments thereof transferable at the first term of Whitsunday or Martinmas after the decease of the longest liver of the said Chetwode Drummond Pringle and Ellen Eliza Elliot now Pringle'; (Fourth) dealt with the event, which did not happen, of there being no issue, or of issue failing to take a vested right. "6. The trustees now acting under both settlements are the said Robert Henry Elliot and James Moffat, who are the plaintiffs in the present action. The capital of the trust funds held under the English settlement consists of:-(1) £2961, 6s. 7d. India 3 per cent Stock; and (2) £146, 10s. Od. Consols. The capital of the trust funds held under the Scottish settlement is now represented by heritable bonds to the amount of £4666, 13s. 4d. over certain estates in Scotland. "7. Chetwode Pringle died at Arcachon, Gironde, France, on 30th December 1878, survived by Mrs Pringle and two children only, viz., (1) Claude Mark Elliot Pringle (hereinafter called Claude Pringle), who was born in the Azores on 20th October 1874; and (2) Adelaide Eleanor Violet Pringle (afterwards Countess Basta), who was born at Biarritz, France, on 17th February 1878. "8. Mrs Pringle died at Rome on 20th January 1911, having resided in Italy for many years prior to her death. Claude Pringle, who is a defendant in the present action, is incapable of managing his own affairs, and has been for many years, and is now, resident in Italy. The said Adelaide Eleanor Violet Pringle was married to the defendant Count Carlo Basta at Rome on 2nd December 1897, and died at Rome on 10th March 1910, survived by three children only, the infant defendants in the present action. The defendant Count Basta was at the time of his marriage, and still is, a domiciled. Italian. By an order in the present action, dated 26th October 1911, the Official Solicitor of the High Court of Justice in England was appointed to be guardian ad litem of the defendant Claude Pringle, and also of the three infant defendants for the purposes of this action. |