Scottish Court of Session Decisions

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^* “The charge of fraud, or wilful misrepresentation, was abandoned at the debate; and the question came to be, whether there was any proof of such erroneous statements on one side, and such radical misapprehension on the other, as should get aside a transaction deliberately entered into by a man of full age, and concluded with the advice and assistance of more than one respectable man of business? The Lord Ordinary is humbly of opinion that there is no such proof.

“It is needless to say any thing here of Mr Darroch's claim for legitim, and of the defences against that claim, founded either on the terms of the marriage-contract of his parents, or on the strong and repeated acts of homologation alleged against himself by the trustees. It is enough to say, that there was debateable matter enough in that question, strongly to recommend to both parties the expediency of an amicable adjustment; and there was also a discretionary power in the trustees, though certainly not to be used in an arbitrary or oppressive manner, to exclude Mr Darroch from the enjoyment of the purchased lands till they were satisfied that he could be safely trusted with their possession.

“In these circumstances, it was proposed that Mr Darroch should abandon his claim for legitim, and that the trustees, in return, should instantly admit him to possession of the purchased lands, and at the same time make over to him all the trust funds which remained unappropriated in their hands. A settlement was accordingly effected, after long negotiations by agents, and repeated consultations of counsel on these terms; and the question is, whether this is now to be opened up at the instance of Mr D.'s creditors (he himself being dead), on the ground that he believed, when he entered into it, that there was a much larger amount of unappropriated funds than has turned out to be the case? They say he had reason to expect from £4000 to £5000, whereas he received little, if any thing, more than £1000.

“The Lord Ordinary's impression of the case is, that there certainly was such an expectation at the beginning of the negotiation, and that it is not improbable that it may have continued to some extent, though with very considerable abatement, down to its conclusion. But what he goes upon, in rejecting this ground of reduction, is, simply, that the trustees, instead of encouraging any such sanguine expectations, seem to have done all they well could to repress it, by positively refusing to guarantee any sum whatever, as the amount of the free or unappropriated funds, and that the matter plainly ended by Mr Darroch being advised to execute the agreement without any such guarantee, and to take his chance as to this particular of the result.

“It seems impossible to hold that Mr M'Intyre's report (which, after all, only shows a balance of less than £2900 in April, 1826, being £4916, liable to a deduction of £2000, with two years’ interest) was offered or received as a complete or responsible statement of the free fund in April, 1827, both because it bears date about a year before, and evidently includes only what had passed through the hands of the professional agent and cashier for the trust.

“But the decisive evidence of the case is to be found in the correspondence of Darroch's agent with the agent for the trustees, and in the terms of the concluded agreement, compared with those of the draft first prepared by the former.

“On the 23d April, 1827, Mr Young, W. S., as agent for Mr Darroch, writes to the trustees’ agent (having formerly pressed him to specify the amount of the free fund), that ‘the proposal for the settlement (which he encloses) is made upon the understanding that the clear fund in the hands of the trustees is not less than £4500.’ Mr Clason answers, that many particulars in the letter require consideration, and that for the present he can make no other answer. On 4th May, Mr Young writes again to Mr Clason, enclosing a draft of the heads of agreement, which he says he was instructed by Mr Darroch to submit to the trustees, the 6th article of which is, that ‘Mr Darroch, in consenting to this agreement, does so on the understanding that the clear funds in the trustees’ hands, alluded to in the first article, do not amount to less than £4000.’

“No written answer seems to have been made to this communication. But on the 11th May, Mr Young states in his accounts, that ‘he went to Greenock at the request of Mr Darroch and Mr Lade (another agent of Mr D. and his brother-in-law) to be present at the settlement with his father's trustees. Meeting with him and you, arranging as to the settlement, and revising the discharge granted by Mr Darroch; three days absent.’ And accordlngly, on the 12th of May, the heads of agreement are regularly executed, Mr Lade, being one of the instrumentary witnesses, and being at all points conformable to the draft forwarded by Mr Young, on the 4th, with this remarkable exception, that every word of the 6th article, already recited, as to the amount of the unappropriated funds, is entirely omitted. Considering the urgency with which such a specification had been previously pressed, the Lord Ordinary considers the omission thus deliberately consented to, as complete evidence that the trustees finally refused to guarantee any sum whatever, beyond what they were then to pay over, or even to sanction Mr Darroch's understanding that any farther sum would be paid; and observing that the pursuers do not now offer any evidence of what passed at the meeting to obviate this conclusion, he holds it decisive of this part of the question.

“As to the act 1621, it may well be doubted whether its provisions are at all applicable to such a case as the present, or whether the averment of Darroch's insolvency, at the time of granting the discharge, is legally sufficient. But it seems enough that the trustees, to whom it was granted—total strangers to his blood, and so far from being objects of his favour, that the only relation in which he ever contemplated them was that of adverse parties in litigation—could not, without manifest absurdity, be considered either at conjunct or as confident persons in the sense of that statute.”