(1773) 2 Paton 291
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Tutory — Inventory — Discharge.—
1. Held, in consequence of a tutor neglecting to give up in his inventory, a lease of dues current at the deceased's death, that he was liable in payment of interest of these, from the dates at which they were respectively paid, and this, notwithstanding a discharge being granted for £889, as the sum effeiring to the minor's interest therein, in full satisfaction of all claims on that account, the minor having been kept ignorant of the claim and the state of the account. 2. Held, for the same reasons, that the curator was not entitled to charge any commission for his trouble. 3. Held that the curator, who had himself been a partner along with the deceased in the said lease current at the death, was not bound, on expiry of the same, to take a renewal also in the pupil's name; but entitled to procure that renewal in his own individual name—the pupil having then attained full age, and the curatory expired.
The appellant's and respondent's fathers, John Parkhill and Alexander Chalmers, were in partnership together, viz. in a lease from Lord Erskine of the coal of Alloa;—a lease from the Magistrates and Town Council of Edinburgh of the shore dues of Leith;—and a lease of the duties of the lights of the Isle of May.
The present question arose out of the latter lease, which had been renewed to the parties, for the third time, at Whitsunday 1749, for eleven years, at the same rent as formerly, of £150 per annum. During the currency of this lease, and a year after the commencement thereof, John Parkhill died, leaving a settlement, appointing his partner, Alexander Chalmers, along with others, tutors and curators for his only surviving children, the appellant and his brother, who were then both infants.
The tutors and curators thus appointed, accepted of the office; and Alexander Chalmers, having been so nearly connected
Sometime thereafter, his son Robert Chalmers, the respondent, called on the appellant, and stated, that from his father's books he found that at the time of his death he was owing him £889. 11s., as the proceeds of the Isle of May Light dues. This, the appellant alleged, was the first time he had heard of the claim. He was then of age, and was paid the amount; and he granted a receipt, without seeing any curatorial accounts. But sometime afterwards, the parties met in Edinburgh, when a settlement of the tutorial accounts was expected, and when the appellant was induced to grant a discharge, on the respondent's representation that the curators might object to the nature of the receipt formerly taken. This discharge acknowledged full payment and satisfaction of his father's share of the joint lease in question, referring to a particular account, which did not comprehend the Isle of May duties. There was superadded a general discharge, discharging all their intromissions with his estate and effects. He was immediately thereafter called away on foreign service; and it was not for seven years that, on his return to Scotland, he procured possession of his father's books, and saw for the first time that his father had an interest in the lease, and that a greater sum was due him than was paid. Accordingly, in these circumstances, the present action of reduction, declarator, count and reckoning, was raised, 1st, To reduce the two discharges above referred to, and to have the defender to render and pay a fair account of his intromissions with the Isle of May dues, for the lease
June 29, 1769.
Of this date, the Lord Ordinary pronounced this interlocutor:
“Finds that the not mentioning the tacks of the duties of the Isle of May Lights, of the shore dues of Leith, and of the duty of the great coal of Alloa, (in all which the pursuer's father, John Parkhill, was a partner,) in the tutorial inventories, although not appearing to have proceeded from any bad intention against the pursuer, or his brother, the pupils, as the deceased John Parkhill's being concerned in these tacks was notour, and as Alex ander Chalmers, the defender's father, who was himself a partner in these tacks, kept a most accurate account of the profits on these tacks, distinguishing in his books the share which fell to Mr. Parkhill's representatives, which could only be with a view to account fairly for the same, but which he was prevented from by death, yet whatever was the cause of the neglect, which probably Mr. Chalmers, had he been alive, might have explained, the pursuer is entitled to the legal consequences of this neglect; and particularly, as thereby the pursuer remained ignorant of the claim, so cannot be allowed to suffer for not demanding regular payment of the said profits, as from time to time they came into Mr. Chalmers' hands, therefore Alexander Chalmers was, and now the defender, as representing him, is bound to pay interest for the said profits, from and after the first term after they came into his hands, until the said profits were paid up; and that from the term preceding John Parkhill's death, the pursuer has right to these profits, so far as not cleared with John Parkhill himself, notwithstanding of the discharge by the pursuer's brother of part of these profits, as supposed executry, when yet they belonged to the pursuer, the heir, reserving to the said defender, Robert Chalmers, action for recourse against the
pursuer's brother. But finds, that notwithstanding these tacks were current at John Parkhill's death, neither the defenders, the tutors as a body, nor Alexander Chalmers, one of their number who had been partner with John Parkhill in them, were bound, upon the expiry of the old tacks, to procure new tacks in like copartnery with this pursuer, then very young, and thereafter a military man; the pursuer's interest in these tacks having ceased upon their expiry. And further, finds the defender Mr. Chalmers, not entitled to charge any sum for commission to himself or his father, on account of the trouble they were put to in levying the pursuer's share of the profits, the same being forfeited on account of neglecting inventories, as the law directs.”
This interlocutor was acquiesced in by the respondent, so far as related to the 12 ½ per cent, stated for his father's trouble, whereby the appellant recovered £900. But the appellant preferred a representation against that part of the interlocutor, which found him not entitled to a communication of the profits of the lease acquired in Alexander Chalmers' own name, of the Isle of May dues, after the expiry of the copartnery lease, which was current at his father's death.
The case was then taken to the Court, on report by the Lord Ordinary (Auchinleck) upon proof and memorials on this point. Upon advising which, this interlocutor was pronounced, “Find the defender not bound to communicate to the pursuer any share of the benefit arising on the lease of the May Light duties let to Alexander Chalmers, the defender's father, by Mr. Scott of Scotstarvet, in November 1759, to commence at Whitsunday 1760; and remit to the Lord Ordinary to proceed accordingly.”
Jan. 24, 1772.
Feb. 5, 1772.
The appellant thereafter insisted for expenses, on the ground that he had been successful in a great part of the cause, whereupon the Lord Ordinary, in respect that the defender was not, “in any part of the proceedings, either litigious or tergiversing, and that he has prevailed in a very great point of the cause, and paid up the sums which were found due directly, found no expenses due.” And, upon reclaiming petition, the Court adhered.
Against these three interlocutors the present appeal was brought.
Pleaded for the Appellant.—The office of a guardian is a most sacred and important trust, and it has been the wisdom
In regard to expenses, no party complaining has a better
Pleaded for the Respondent.—The respondent does not dispute the principle of law referred to, in regard to the acquisitions of curators; but denies its application to the present case. The new lease, in which the appellant claims an interest, was not entered into until several years after the appellant was of age, and no longer a minor. He had therefore no interest, as that interest was at an end with the expiry of the former lease, current at his father's death. After this event, and after he had attained majority, the respondent had no authority to act for the appellant, nor was he bound in law to act for him in regard to the lease in question. The whole transaction, in so far as the respondent's father was concerned, was fair, and to be expected in the circumstances. The appellant was a man devoted to the military life. He was actually on foreign service. And the respondent's father could not form the remotest idea that he could possibly have a wish to join in commercial affairs. Nor is it likely that he would have got his father to join him in such a project, far less likely that the landlord would let these duties to a young officer in the army. Nor has there been any concealment proved, such as to shew a fraudulent intention on the part of the respondent's father. The omission of all the joint leases or adventures, from the tutorial inventory, was not evidence of such fraudulent intention; as this was deemed proper by the whole curators, because, at that time, it was not certain whether these would be attended with profit or loss. For the same reason, or by an error of the clerk, notice is not taken of these in the Sederunt book. These omissions were part of a plan, upon which the tutors exercised their judgment for the best. Besides, all claim is now cut off by the discharges, as well as long acquiescence; and it is no objection to this, to say, that a general discharge, subjoined to a list of particulars discharged, will not be construed to extend to matters of a quite different nature, which are not presumed to have been under the view of parties; because this rule holds differently in regard to particulars of the very same kind with those that are discharged, and more especially where the discharge is of the acts and deeds of a tutor.
After hearing counsel, it was
Ordered and adjudged that the appeal be dismissed, and
Counsel: For Appellant,
For Respondent, Ja. Montgomery; Al. Wedderburn, Ilay Campbell.