Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Sir Alexander Cuming
v.
John Vere Kennedy

Date: 10 December 1708

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Sir Andrew Kennedy, having in anno 1689, got a commission from King William, to be, during his lifetime, conservator of the Scottish privileges in the Netherlands, and his Majesty's resident: he, in anno 1697, procured a new commission to himself and his son, narrating and ratifying the former; with a novodamus to them, during the lifetime of Sir Andrew, to be conjunct conservators and residents, and to John Vere Kennedy, to be conservator and resident after his father's decease, during the King's pleasure. Sir Andrew Kennedy having, for malversation, been deprived of his office of conservator, January 16, 1708; and of the office of resident, January 29, 1708; and the decreet extracted: John Vere Kennedy stepped in for his interest, and contended, That notwithstanding the reduction of his father's right, the commission quoad him stood good during his father's lifetime, and, thereafter, durante beneplacito reginæ; and, therefore, Sir Alexander Cuming's right to the office could not be declared.

Alleged for Sir Alexander Cuming,—The son's right depended on the father's as to any fixed period of time; and when the father's came to cease, the son's right to the office resolved in a beneplacitum, which is declared by a new gift from her Majesty to Sir Alexander Cuming. For can the clause appointing him conjunct with his father during his father's life, make him conjunct with his father, when his father cannot be conjunct with him? or, can the words conjunct conservator during his father's life, import conjunct conservator without his father, during his father's life? This is the very reverse sense of the words. And can any man of common sense imagine, that Sir Andrew, who had right to the office in solidum by the first commission, which was ratified in the second, did forfeit his office to his son, and not to the sovereign? This were indeed to encourage vice, and reward iniquity with a witness. So that, by the conception of the gift, both the life and conjunction of the father are necessary to exist together, for sustaining the son's title beyond the sovereign's good pleasure.

Answered for Mr. Kennedy,—His being conjunct in the commission with his father, was only a conjunction in the right and title, and not as to the exercise: for he and his father might have acted separately in the administration. And though a gift of this kind, to any single person during his life, implies the condition of quamdiu se bene gesserit, and is understood to continue ad vitam, aut culpam: such a gift, in favours of two, jointly during the life of one of them, that terminus must strictly be understood of the other's natural life allennarly, without the foresaid implication or extension to culpa. For seeing Sir Andrew could not, either by voluntary dismission, or incapacity to officiate, prejudice his conjunct, far less could he by his transgressions.

Replied for Sir Alexander,—1. If the right to the office fall upon dissolution of the conjunction, the exercise must fall in consequence; for it is no less absurd for Mr. Kennedy to divide the exercise from the right itself, than it is for him to pretend any other right than ad beneplacitum, after his father is laid aside. 2. The distinction betwixt a grant to one person during his life, and a grant to two during the life of one of them, has no foundation in law, unless the two persons' rights were in distinct commissions: whereas, here the father and son are individually conjoined in the same gift. 3. Upon the ceasing of the father's right, whether by death or otherwise, the son's right falls to the ground, and resolves in a beneplacitum; as the office of tutors named jointly falls by the death or incapacity of one of them. June 17, 1671, Drummond contra the Feuars of Bothkenner. Mandates, commissions, factories, and letters of actornie, granted to two jointly, are void, and return to the granter by the death of one of them. So an office granted to two, not conjunctis et divisis et alteri eorum diutius viventi, vacates upon failing of one of them: as the Lord Coke observes in the 11th book of his Reports in Auditor Curl's Case, and in the case of the Sheriffs of London; and Plowden, fol. 382, and fol. 180. Because thereby the trust and confidence required in the office is broken; nam securius expediuntur negotia commissa pluribus. So that Mr. Kennedy loses his right upon his father's deprivation; not by way of punishment, but by an implied limitation in the conception of the gift itself, bearing only to them jointly, which cannot subsist in one.

The Lords found, That the reduction of Sir Andrew's right upon malversations, had the same effect against his son's right, as if he, Sir Andrew, were naturally dead.

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