Scottish Court of Session Decisions

This was an action of count, reckoning and payment at the instance of Charles Andrew Aitchison, confectioner in Edinburgh, against his brother John Aitchison, also a confectioner in Edinburgh, in the following circumstances.

The pursuer and defender were sons of John Aitchison, baker in Edinburgh, who died in 1823. Besides the pursuer and defender, John Aitchison the father was survived by four sons and three daughters, viz., Alexander, James, George, William, Isabel, Margaret and Catherine. The defender was the third of the family, and the pursuer was the youngest son.

John Aitchison the father was also survived by his widow Jean Inderwick or Aitchison. By trust-disposition and settlement, John Aitchison the father conveyed his whole estate to trustees, for payment to his wife in liferent and to his children in fee, “in such manner and proportion as my said spouse shall determine.”

The trust-estate consisted of shop and dwelling-house in Little King Street and East Register Street, and two small shops in Catherine Street, and a personal estate of £1333.

The trustees did not intromit with the estate, but, with the consent of Alexander and James, who were of age, allowed Mrs Aitchison to take possession of the whole trust-estate, in order that she might carry on the business for the benefit of her family. Mrs Aitchison accordingly, with her two sons Alexander and James, continued the business in the shops in Little King Street and East Register Street under the firm of Mrs Aitchison & Sons or Aitchison & Sons. “No written contract of copartnership was entered into, but the business was unquestionably at first carried on by these three persons for the benefit of the whole family. In 1828, as the business was increasing, and as several of their customers resided in the west end of the town, Mrs Aitchison resolved to extend the business by opening a confectionery shop in Queen Street; and accordingly she took a lease of the shop No. 77 Queen Street, and of the house above it, from her brother Mr Paterson, and there she and her son James commenced and carried on the confectionery business on a small but gradually increasing scale, until it became one of the largest and most successful businesses of the kind in Edinburgh. The other sons as they grew up all came, in one capacity or another, to take part in the business. When the Queen Street shop was opened in 1828 George was put in charge of the Register Street shop, and Alexander took charge of the Little King Street shop. The name of the firm in Queen Street was the same as before, viz., ‘Aitchison & Sons’, or ‘Jean Aitchison & Sons’; and there is no doubt whatever that, from 1828 at all events until 1832, the whole three shops and businesses in Little King Street, East Register Street, and Queen Street were one concern. The bread which was baked at Little King Street was carried daily to East Register and Queen Street, to supply the customers of these establishments, and the drawings of all three places were paid or accounted for regularly to Mrs Aitchison at Queen Street. In consequence of the increase of the business, more assistance was required, and the defender John Aitchison, who had been a clerk in a wine merchant's office in Leith at a salary of £80 a year, gave up his situation, at his mother's desire, and went to Queen Street. He was entirely ignorant either of baking or of confectionery, and he never took any part in the practical department of the business, which was then under the charge of his brother James, and afterwards of James and of the pursuer; and his principal duties were to assist his mother in keeping the books, and attending in the shop or saleroom. The defender admits that he never put any capital into the concern, that no contract of copartnership was entered into, and that he just went to Queen Street because his mother required him. And the business went on as before in all the three shops as parts of one and the same concern, carried on for behoof of the whole family.

“In 1832 George Aitchison left the Register Street shop and went to the shop at the corner of Albyn Place and Wemyss Place, nearly opposite No. 77 Queen Street. He there began the business of baker, ostensibly in his own name; but from that time bread ceased to be sent from Little King Street to the Queen Street shop, and whatever bread was required for the customers of the Queen Street shop was supplied from Wemyss Place.”

George gave up the business in Wemyss Place in 1865 on account of his health, and upon the death of his brother James in 1866 he took the place which James had occupied in the Queen Street business, where he remained until his death in 1874.

In 1835 Alexander, the eldest son, was married, and the baking business carried on in Little King Street and East Register Street was handed over entirely to him, he paying a rent to his mother

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for the premises. “Up to this time Charles, the pursuer, (who was now about twenty or twenty-one years of age) had been from his boyhood employed in assisting in one or other of the three shops, in Little King Street, East Register Street, and Queen Street, though after George's removal to Wemyss Place he seems to have confined his attention almost exclusively to the shop in East Register Street. After Alexander married, the pursuer remained in East Register Street only some months, until he had instructed Alexander's wife in the business, and he then entered the Queen Street establishment, where he remained, actively engaged in the business, until shortly before the institution of the present action. He was the member of the family who was skilled in the manufacture of confectionery.

About or soon after 1835, William, who had been in an architect's office, also joined the Queen Street Establishment, and he gave his whole time to the business till his death in 1874. His principal duties seem to have been to assist the defender in the shop and saleroom, and to pack and nail up the boxes of confectionery in hampers for transmission to the country.

About the same date, Isabell camein to the Queen Street shop, in which she ever afterwards continued. Margaret and Katherine never had anything to do with the shops. Margaret died young, and Katherine in 1848. Both were unmarried, Alexander being the only member of the family who did marry.

In 1847, Mrs Aitchison, being old and infirm, entered into a minute of agreement with her sons James and John in the following terms:—“The said parties having agreed to dissolve the said copartnery as at the term of Martinmas last 1847, the same is hereby held as dissolved as at that date accordingly, and it is also declared that the said Mrs Jane Inderwick or Aitchison retired from the said copartnery as at the said term of Martinmas last, and that her good-will and interest in the business now belongs to the said James and John Aitchison. In witness whereof,” &c.

Mrs Aitchison died on 4th January 1848, leaving a general disposition and settlement dividing her property equally among her children. By a codicil to the settlement she recalled the disposition in so far as it included the pursuer, in consequence of his having in 1846 been sued for damages for breach of promise of marriage by a Miss Tucker. The action had libelled the defender (the pursuer in the present action) as a partner of the firm of Aitchison & Sons, but in defence he stated that he was not a partner of that firm.

On 25th November 1848 a meeting of the family was called together for the purpose, inter alia, of reading Mrs Aitchison's settlement. A minute of the meeting to the following effect was drawn out:—

“Mr Alex. Aitchison stated that the present meeting had been called for the purpose of reading the settlement of the late Mrs Aitchison, and taking the other steps which were necessary thereanent.

Mr Baillie then produced a disposition by Mrs Aitchison, dated 26th October 1830, in favour of her children, and codicil thereto annexed, dated 6th May 1847, and also a writing executed by her on the date last mentioned, in reference to her husband's trust-disposition. These deeds were then read.

There was then also produced to the meeting and read a minute of agreement between the deceased and James and John Aitchison, her sons, in reference to the dissolution of the copartnery between them, dated 23d December 1847.

The meeting, considering that the codicil before mentioned, which recalled the said disposition in so far as it included the said Charles Andrew Aitchison and the heirs of his body, had been executed by the deceased in consequence of special causes which had now ceased to exist, and that the deceased had also resolved, if she had been spared, to cancel the said codicil, agreed and hereby agree to hold the said codicil as cancelled, to renounce all benefit which they and each of them may or might derive under it, and to divide the estate of the deceased, heritable and moveable, in the same manner as if such codicil had never been executed, and also to execute all deeds which may be necessary for carrying this writing into full effect. The meeting also for the same causes agreed and hereby agree to hold the other writing before mentioned, dated the same day as said codicil, as cancelled, to renounce all benefit which they and each of them may or might derive under it, and to divide the estate of their deceased father, heritable and moveable, in the same manner as if such writing had never been executed, and also to execute all writings or deeds which may be necessary for carrying this minute into full effect. In witness whereof,” &c.

Notwithstanding that Alexander had since his marriage managed as his own a separate business, he claimed a share in the interest of the business carried on by his mother, and this claim was finally settled upon 18th March 1851 by a minute of agreement entered into between Alexander Aitchison, on the one part, and John Aitchison, on the part of his other brothers and sisters, and taking burden for them on the other part. The minute of agreement was in the following terms:—

“1. The subjects in Little King Street, in Catherine Street, and shop in East Register Street, which severally belonged to the late Mr John Aitchison, or to his widow or family, and also one share of the Stockbridge Mill Company, are to be henceforth the property of Alexander Aitchison, and his brothers and sister are at their expense to concur in making them over to him, and he is to be infeft therein at their expense.

2. The remainder of the property of the late John Aitchison, or of his widow and family, including the subjects in Broughton Street, is to be henceforth the property of the other members of the family, and they are at their own expense to receive from Alexander Aitchison all deeds which may be necessary for fully vesting them therein.

3. On these objects being accomplished, Alexander Aitchison is to grant a full discharge of all claims that he may have against his brothers and sisters of any kind whatever, and they are to grant a similar discharge to him of all claims they may have against him of any kind whatever, which discharges shall be at the expense of the second party solely. In witness whereof,” &c.

In the same year (1851) the whole family, with the exception of Alexander, executed deeds of

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settlement of their whole estates in favour of the others and the survivor or survivors of them. These settlements were delivered to the defender to keep. At the date of this case the pursuer, the defender, and Isabel were the only members of the family surviving. All the profits of the business and the annual produce of the invested money of the family were banked in the name of Aitchison & Sons, the account being operated upon by James, John, George, and Isabel. When money was drawn from the bank for the purpose of being invested it was invested in the names of one or other of the members of the family without apparently any principle of selection.

The pursuer averred that the defender had taken possession of the whole estate of his deceased father and mother and brothers and sisters, and accordingly called upon him for an accounting.

The pursuer pleaded—“(1) The defender having managed and intromitted with the estate and funds belonging to the family, is bound to count and reckon with the pursuer in terms of the conclusions of the summons. (2) The pursuer, by virtue of his father's trust-deed, and of his brothers' settlements, is entitled to an accounting for his own and their respective shares of the proceeds of the business carried on for behoof of the family, and of the investments referred to. (3) The pursuer, by virtue of the minute of agreement relative to his mother's settlement, is entitled to an equal share of her estate, and he is also entitled to the shares thereof belonging to George and William in terms of their settlements. (4) The pursuer, and his brothers James, George, and William, being equally interested with the defender in the business mentioned in the condescendence, he is entitled, in his own right, and as representing them, to an accounting as concluded for, with expenses. (5) Separatim and alternatively, the pursuer is entitled to an accounting in respect the said business was carried on by the several members of the family in partnership.”

The defender pleaded—“(1) The defender is not bound to hold count and reckoning with the pursuer with respect to the trust-estate of the deceased John Aitchison their father, in respect that the defender was not a trustee or executor of the said John Aitchison, and had no intromissions with his trust-estate. (2) The defender is not bound to hold count and reckoning with the pursuer in regard to the businesses carried on in Little King Street, Register Street, or Wemyss Place, in respect that the defender took no part in the said businesses, and had no intromissions with the funds or profits thereby realised. (3) The pursuer has no title to sue for an accounting relative to the confectionery business in Queen Street, and the defender is not bound to hold count and reckoning with the pursuer in regard to that business, in respect that the pursuer was not a partner, and had no right or interest in that business. (4) At all events, the defender is not bound to hold count and reckoning with the pursuer with respect to the said confectionery business on any other footing than that Mrs Aitchison, James Aitchison, and the defender, were partners thereof down to the year 1847; that the said James Aitchison and the defender were the sole partners from 1847 to 1866, and that the defender has been the sole partner since that date. (5) The defender is not bound to hold count and reckoning with the pursuer with respect to the trust-estate of their mother Mrs Aitchison, in respect that he was only one of her executors, and that he had no separate intromissions with her estate or executry. (6) All parties not called. (7) The pursuer's claims to accounting with respect to the estates of Mr and Mrs Aitchison—father and mother of the pursuer and defender—are excluded by the family arrangements condescended on; and, in particular, by the said agreement of 17th March 1851, and the actings which followed thereupon. (8) The pursuer's statements are not relevant or sufficient in law to support the conclusions of the summons. (9) In respect of the arrangement under which the said mutual settlements of 1851 were executed, and of the said settlements having been executed, and the pursuer, and the brothers whom he represents, having taken benefit under the settlement of James Aitchison, the action cannot be maintained, and the survivor of the brothers and sister will be entitled to the whole property in terms of the said mutual deeds. (10) If the said arrangement shall not so receive effect, the defender is entitled to the whole properties purchased with monies belonging to him, in reliance and on the faith of the said arrangement and mutual settlements being acted upon and receiving effect.”

A proof was taken, the result of which is fully set forth in the Lord Ordinary's note, and in the opinions of the Judges.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 5th December 1876.—The Lord Ordinary, &c., Finds that the defender is bound to hold count and reckoning with the pursuer for his various intromissions, in terms of the conclusions of the summons; but finds that in such count and reckoning the funds realised from or belonging to the business carried on under the name of George Aitchison in Wemyss Place, and the proceeds of the sale thereof in so far as received by the said George Aitchison, now deceased, by the late William Aitchison, and by the pursuer, or any of them, and not accounted for to the general fund managed by the defender, must be accounted for by the pursuer, and taken into the general account, &c.

Note.—In this action the pursuer Charles Andrew Aitchison, confectioner in Edinburgh, calls upon his brother John Aitchison, also confectioner there, to count and reckon with him for his intromissions—(1) with the trust-estate of their father John Aitchison, baker in Edinburgh, who died on 16th January 1823, and with the funds realised from or belonging to the business carried on under the name of J. Aitchison & Sons in King Street, Register Street, and Queen Street, Edinburgh, and under the name of George Aitchison, in Wemyss Place, Edinburgh, and with the property, stocks, loans, and other investments in which the funds of the said trust-estate and business had been placed—and also with the trust-estate of their mother, the deceased Mrs Jean Inderwick or Aitchison, who died on 4th January 1848. The averments of the pursuer substantially are—(1) That from the time of his father's death in 1823 his business was continued and gradually extended by his widow, and was

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carried on by her with the assistance of several of her sons, for behoof of herself in liferent and of her family, consisting of six sons and three daughters, in fee, to be paid to them on her death, but subject to a power on her part to exclude any of the family from participation; (2) that after the death of his mother, in 1848, Alexander Aitchison, the eldest son, was settled with and paid off, but that the business was carried on by the other surviving members of the family, either in partnership or for joint behoof, all being equally interested in the business; (3) that John Aitchison, the defender, began to assist his mother in 1830, and was from the first entrusted with the management of the books of the concern, and that he and his mother, during her life, received the drawings from the business; and (4) that after her death the defender alone received the drawings, and kept the bank account of the concern, which he manipulated at pleasure, and he is now called upon by his brother the pursuer, all the other brothers and two of the sisters being now dead, to account for his intromissions. The defender declines to account for his father's trust-estate, in respect he was not a trustee under his father's settlement, and had no intromissions therewith. He also declines to account for the business carried on in Little King Street, Register Street, and Wemyss Place, in respect he took no part in said business, and had no intromissions with the funds or profits thereof; and he declines to account for the confectionery business in Queen Street, in respect that the pursuer is not a partner, and had no right or interest in that business. He also in his defences declines to account for the estate of Mrs Aitchison, his mother, in respect that he was only one of her executors, and that he had no separate intromissions with her estate. But this plea is not, as I understand, now insisted on, as he admittedly did intromit to a considerable extent, and he has abandoned his sixth plea that all parties have not been called. The defender farther maintains that all claims by the pursuer with respect to the estates of their father and mother are excluded by family arrangements, and particularly by an agreement, dated 17th March 1851, and certain actings which are alleged to have followed thereon. Various other defences are stated, but it is unnecessary in the meantime to advert to these more particularly. An extensive diligence was granted to both parties for recovery of documents, and thereafter a proof was led which occupied three days, and was followed by a long and able debate.

The evidence is somewhat conflicting, and is in many respects not very satisfactory, owing, probably, in some measure to the circumstance that for a period of nearly fifty years the family appears to have been a united and harmonious one, and that its members reposed unlimited confidence in each other, and particularly in the defender, who, as has been mentioned, had charge of the books of the business and the finance of the family. The books, however, seem to have been kept in a most imperfect and unbusinesslike way—they were never balanced, and many of the older books have been destroyed or mislaid. No assistance, therefore, can be derived from the books in answering the question, Who were the parties interested in the business to which the present action of count and reckoning chiefly relates?

But, before considering the import of the evidence in detail, it may be useful to explain the position of the family at the death of John Aitchison the father, in 1823, and the subsequent history of its various members. The said John Aitchison was a baker in Edinburgh, and carried on business, in partnership with his brother Alexander, under the firm of John & Alexander Aitchison, in two shops—one in Little King Street, and the other in East Register Street—both of which belonged to himself individually. He was survived by his wife, Mrs Jean Inderwick or Aitchison, and by six sons and three daughters, whose names and ages, as at their father's death, were as follow:—Alexander, the eldest, was 24 years of age; James, 22; John (the defender), 20; Isabel, 18; George, 16; William, 13; Margaret, 10; Charles (the pursuer), 8; and Catherine, 4. John Aitchison left a settlement, dated 14th October 1819, with a codicil, dated 4th January 1823. By that deed he conveyed to certain persons, as trustees, his whole estate, heritable and moveable, including specially his stock-in-trade, but excepting his household furniture, which he bequeathed to his wife; and the trustees were empowered to sell and dispose of all or any part of the estate as they should think most conducive to the interest of the family; and they were directed to lend out the whole estate on good security, and to pay over to his wife, if the survivor, the whole interest or annual return half-yearly during her life, and after her death to divide the whole estate and capital remaining under their management among the children, with a declaration in the following terms, viz.:—‘The security of my said free estate to be conceived in favour of my said spouse in liferent, for her liferent use allenarly, and to my children in such manner and proportion as my said spouse shall determine:’ and failing any division by the widow, the shares of the children were to be equal, except in the case of Margaret, who was to receive two shares, and of Alexander, who was to receive only half a share, although he was by the codicil placed on an equality with his brothers. But power was given to the widow, if she should see cause, ‘to make a different arrangement among our said children by adding to or diminishing the shares of all or any one of them, or of depriving them, or any of them, of the whole or any part of their respective shares, as she may be satisfied they may deserve or merit.’ Mrs Aitchison along with the trustees were nominated executors, and the provisions of the settlement were declared to be in full of all the legal claims of the widow and children. The personal estate, including the half of the stock-in-trade and book debts of the firm of John & Alexander Aitchison, amounted to £1333, 1s. 9d. The heritable estate consisted of the shop and dwelling-house in Little King Street and East Register Street, and two small shops in Catherine Street. The trustees are all now dead, and it does not appear whether they had any, or if so what, intromissions with the estate. One thing is certain, viz., that no part of the estate was ever paid by them to any of the children of John Aitchison; but they appear, with the consent of those members of the family who were then of age, to have handed over to Mrs Aitchison the entire trust-estate of her husband, including his stock-in-trade and the goodwill

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of the business, in order that she might carry on the business for the benefit of her family. This was a natural and reasonable arrangement, as Mrs Aitchison had plainly a great aptitude for business, and was not only entitled to the liferent of her husband's whole estate, but had power to fix the shares of the fee which each child should ultimately take, and even to exclude any child from participation in the estate. Mrs Aitchison seems to have paid off her brother-in-law Alexander, who had been her husband's partner, and to have herself, along with her two sons then of full age, Alexander and James, continued her husband's business, with his stock-intrade, in the shops in Little King Street and East Register Street, under the firm of ‘Mrs Aitchison & Sons,’ or ‘Aitchison & Sons,’ being assisted also by George, then a lad of 16. No written contract of copartnership was entered into, but the business was unquestionably at first carried on by these three persons for the benefit of the whole family. In 1828, as the business was increasing, and as several of their customers resided in the west end of the town, Mrs Aitchison resolved to extend the business by opening a confectionery shop in Queen Street; and accordingly she took a lease of the shop No. 77 Queen Street, and of the house above it, from her brother-in-law Mr Paterson, and there she and her son James commenced and carried on the confectionery business on a small but gradually increasing sale until it became one of the largest and most successful businesses of the kind in Edinburgh. The other sons as they grew up all came, in one capacity or another, to take part in the business. When the Queen Street shop was opened in 1828, George was put in charge of the Register Street shop, and Alexander took charge of the Little King Street shop. The name of the firm in Queen Street was the same as before, viz., ‘Aitchison & Sons,’ or ‘Jean Aitchison & Sons;’ and there is no doubt whatever that, from 1828 at all events until 1832, the whole three shops and businesses in Little King Street, East Register Street, and Queen Street were one concern. The bread which was baked at Little King Street was carried daily to Register Street and Queen Street to supply the customers of these establishments, and the drawings of all the three places were paid or accounted for regularly to Mrs Aitchison at Queen Street. In consequence of the increase of the business more assistance was required, and the defender John Aitchison, who had been a clerk in a wine merchant's office in Leith, at a salary of £80 a-year, gave up his situation, at his mother's desire, and went to Queen Street. He was entirely ignorant either of baking or of confectionery, and he never took any part in the practical department of the business, which was then under the charge of his brother James, and afterwards of James and of the pursuer; and his principal duties were to assist his mother in keeping the books and attending in the shop or saleroom. The defender admits that he never put any capital into the concern, that no contract of copartnership was entered into, and that he just went to Queen Street because his mother required him. And the business went on as before in all the three shops, as parts of one and the same concern carried on for behoof of the whole family.

In 1832 George Aitchison left the Register Street shop, and went to the shop at the corner of Albyn Place and Wemyss Place, nearly opposite No. 77 Queen Street. He there began the business of baker, ostensibly in his own name; but from that time bread ceased to be sent from Little King Street to the Queen Street shop, and whatever bread was required for the customers of the Queen Street shop was supplied from Wemyss Place. It is one of the questions in this case, and a somewhat difficult question, viz., whether this Wemyss Place shop was a separate and independent concern in which George alone was interested? or whether it was truly another branch of the concern of Aitchison & Sons? And in this question another is involved, viz,—whether George had any interest in the Queen Street business? I shall advert to these questions more fully hereafter; but at present it is important to notice, as a part of the family history, that after the Wemyss Place business was discontinued in 1865, George, after an interval of repose which the state of his health rendered necessary, took in 1866, on the death of James, the place which James had occupied in the Queen Street establishment—viz., the practical superintendence of the cooking department, and continued to fill that place till his own death in 1874. The defender chose to deny this in the witness box, but the fact is in my opinion clearly proved by the evidence.

In 1834 or 1835, Alexander, the eldest son, was married, and an arrangement seems to have been come to by which the baking business carried on in Little King Street and East Register Street was made over entirely to Alexander, he paying a rent to his mother for the use of the premises, and I think there is no proof that any of the drawings from either of those places was ever handed over to Mrs Aitchison after Alexander's marriage. Up to this time Charles, the pursuer, (who was now about twenty or twenty-one years of age) had been from his boyhood employed in assisting in one or other of the three shops, in Little King Street, East Register Street, and Queen Street, though after George's removal to Wemyss Place he seems to have confined his attention almost exclusively to the shop in East Register Street. After Alexander married, the pursuer remained in East Register Street only some months, until he had instructed Alexander's wife in the business, and he then entered the Queen Street establishment, where he remained, actively engaged in the business, until shortly before the institution of the present action. And here I must notice what I am unwilling to characterise by a harsher term, but what is, I fear, due to something more than lapse of memory on the part of the defender, viz., his attempt both on the record and in the witness box to make out that the pursuer has throughout life been weak both in body and mind, and has never been able to engage constantly in any active employment, and that any services which he rendered were of trifling value, and not equivalent to the cost of his maintenance. Now, if anything has been proved in this case, it is, that from the very first the pursuer showed great aptitude for and energy in the manufacture of confectionery, in which department the defender was and is entirely unskilled. He from time to time went to London and Paris to study confectionery under skilful artists in those towns, and he acquired great proficiency in the art. The workmen who

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were employed in the practical department in Queen Street speak of him as having from the first been a hard working man, and a very skilful compounder particularly of creams, jellies and ices, for which the establishment acquired a great reputation. Thus Mr John Dewar says, ‘I knew Charles well. He was employed principally in the confectionery, and took a general management below in Queen Street. He was at the top of the tree as a workman, and in fact I reckoned him the bee that made the honey.’ And even the defender himself, although he denied it in the witness box, is proved in the negotiations for a sale of the whole business to George Lawson in 1873 to have represented the pursuer as superintending the practical department, and as being in possession of invaluable recipes, about which, and the working of them, nobody knew anything except the pursuer. The pursuer may be, and I think probably is, a person not very well versed in the ways of the world, or in the management of business affairs; but I think the evidence clearly shows, that whatever his position in Queen Street may have been, he was for forty years a most useful member of the establishment, and that his steadiness and skill as a confectioner contributed in no small degree to the success of the concern.

About or soon after 1835, William, who had been in an architect's office, also joined the Queen Street establishment, and he gave his whole time to the business till his death in 1871. His principal duties seem to have been to assist the defender in the shop and sale room, and to pack and nail up the boxes of confectionery in hampers for transmission to the country, which is a very delicate and important part of the business of a confectioner, as the safe transmission of such perishable articles depends mainly upon the care and skill with which they are packed; and the defender's attempt to depreciate William's usefulness has failed, as it did in the case of the pursuer. About the same time the eldest daughter, Isabel, came to the shop, where she assisted, and still continues to assist, in the sale department. The other two daughters, Margaret and Catherine, do not appear to have done anything in any of the shops. Margaret died young, and Catherine died, unmarried and intestate, soon after her mother, in 1818.

In 1835, therefore, the state of the family and the occupations of the respective members were as follows:—Mrs Aitchison was at the head of the business in Queen Street, and was assisted there by her sons James, John (the defender), William, and Charles (the pursuer), and by her daughter Isabel,—John, William, and Isabel being engaged in the sale and book-keeping and packing departments in the shop, while James and Charles were engaged below, the former in the cooking department, the latter in the preparation of ices, jellies, creams, and cakes; George was engaged in the baking shop in Wemyss Place, and Alexander, as has been mentioned, had the exclusive charge of the business in Little King Street and East Register Street, apparently for his own behoof. And the principal question now for decision is, For whose behoof were the businesses in Queen Street and Wemyss Place carried on after 1835? The pursuer maintains that they were all one concern, and were carried on for behoof of the whole family; the defender, on the other hand, maintains that the business of Wemyss Place was carried on by George solely for his own behoof, and that none of the other members of the family had any interest in that business, and that the business in Queen Street belonged entirely to Mrs Aitchison, James, and the defender, as the sole partners thereof, until shortly before Mrs Aitchison's death, when, in virtue of an agreement between her and her two alleged partners, the whole business was transferred to them, and was thereafter their exclusive property, and that neither George, William, Charles, nor Isabel had any interest in it whatever. After the best consideration which I have been able to give to the proof, both oral and documentary, I have come to be of opinion that it is not proved that there was any proper partnership entered into between Mrs Aitchison and her sons, or any of them; but that it is proved that until 1835 the business in Little King Street, East Register Street, Queen Street, and Wemyss Place, and after that date until Mrs Aitchison's death, the business in Queen Street and Wemyss Place, were all truly branches of one concern—that they had all derived their existence from the as yet undivided estate of old John Aitchison the father, and that they were carried on by the widow and her sons and a daughter for behoof of the whole family—the mother being interested in the liferent, and the sons and daughters in the fee in equal shares, but with power to the mother to diminish the share of any child, and even to exclude the child altogether; and that from Mrs Aitchison's death the Queen Street business, until now, and the Wemyss Place business until it was discontinued in 1865, were carried on by the surviving brothers and sister, other than Alexander, for their joint behoof. I shall now explain the grounds of this opinion.

In the first place, It may not unreasonably be presumed that where a business in which the deceased father of a family had been engaged, and in which his funds had been almost wholly embarked, is, without any distribution of any part of his estate among his children, carried on after his death by his widow and the grown-up sons (the other children being in minority or pupillarity), the business, until a distribution takes place, is so carried on for behoof of the widow and all the children in proportion to their respective interests in the estate.

In the second place, This presumption derives, in the present case, very great support from the circumstance that, without any distribution of the estate beyond paying off the eldest son, in manner to be afterwards noticed, the business was conducted from the date of the father's death, and for a period of half a century, on the footing of introducing into it from time to time as they grew up, and in one capacity or another, every member of the family, each giving his or her whole time to their respective departments, and all excepting the eldest son, who alone of the family ever married, living together during their joint lives.

In the third place, From the death of the father in 1823 down to 1835, all the profits of the four establishments were regularly paid over to Mrs Aitchison, and applied by her for joint behoof; and after the latter date, and until her death, the profits of the Wemyss Place and Queen Street establishments were paid to Mrs Aitchison, and after her death to the defender,

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and applied for behoof of all the family except Alexander. None of them ever received anything in the shape of wages, but whatever was required for clothing, or other necessaries, was paid to them by the defender as the financial manager for the family, either out of the till in Queen Street or by cheque upon the National Bank account, into which all the earnings of the several businesses were paid. And the defender has entirely failed to make out that any of the family occupied merely the position of servants.

In the fourth place, Out of the accumulated drawings from the profits of the several establishments which I have enumerated, investments of various kinds, such as the purchase of heritable properties, and a great variety of stocks and loans on heritable security, were made by the defender as financial manager, sometimes with, and sometimes without, consultation with his brother and sister, the titles being in many cases taken in name of all the members of the family excepting Alexander, and almost all the rest in the name of at least two, and usually more, of the members of the family, very few being taken in the name of one individual. From the table printed in the Joint Print some idea may be formed of the nature and extent of these family investments, and it will be seen they are numerous and of large amount, but to this I shall advert more in detail hereafter. Suffice it for the present to say that it is clearly proved that the money which was employed in making these investments was all drawn from the National Bank account, which was kept in the name of ‘Aitchison Sons,' and which included not only the shop drawings of the several establishments, but the whole rents, dividends, and annual proceeds of all the family investments, irrespective altogether of the persons in whose name the investments stood.

In the fifth place, The premises in Queen Street, in which the confectionery business was carried on, were purchased by Mrs Aitchison out of the profits of the business, and at her death became the property of James, John, Charles, George, William, and Isabel, but no rent was ever paid to them for the use of the premises. And in 1854 the same persons purchased the property of Mount Vernon, near Liberton, at the price of £5500, which, like other investments, was paid for out of the general bank account of ‘Aitchison & Sons.’ The whole family, except Alexander, when they were not residing in the house above the shop in Queen Street, seem to have resided in Mount Vernon, where there were gardens and vineries and a poultry-yard, the produce of which was all taken to Queen Street and employed in the business there. The defender, no doubt, tries to make out that this was a small affair. He says:—‘The grapes grown at Mount Vernon were a trifling affair. We did not grow them as a mercantile adjunct, but as a matter of pleasure, and when they were there we could not see them wasted.’ But William Frisy, who was gardener at Mount Vernon for three years before September 1874, gives a very different account, for he says:—‘There was a great deal of indoor fruit grown at Mount Vernon—grapes, peaches, and strawberries. The quantity increased every year, and during 1874, by a calculation I made, there were about 2000 lbs. of grapes, 2000 peaches in number, and about 100 lbs. strawberries. That fruit was not consumed at Mount Vernon; it was taken away, and I did not know what was done with it. Charles Aitchison took the principal charge of the fruit-houses, and gave me instructions. None of the other brothers gave me instructions, but they always consulted me, as they took a great interest in the crops.’ Now, it is plain that this large quantity of valuable fruit, produced at Mount Vernon at the common expense (which must have been considerable, for the fruit was all raised under glass), was the joint property of the family; and it is absurd to suppose that the use of the premises in Queen Street, or of the Mount Vernon fruit and other produce, would have been given by the other members of the family for the purposes of the business in Queen Street without charge, unless that was a business in which they were all equally interested. I have mentioned this circumstance for another reason, viz., to point out, that through the whole of this case the defender has systematically endeavoured to depreciate and make light of everything which could be held to be of the nature of a contribution by the other members of the family to the common stock. Thus, as I have already shown, he tried to make out that the services of Charles the pursuer, and of his brother William, were hardly worth the expense of their maintenance, although in point of fact they are proved to have been of very great value to the firm; he denied that George ever took any part in the Queen Street business, although he is proved to have taken an active part in it during the last eight years of his life; and now the supplies of fruit and other produce from the common property at Mount Vernon are represented as trifling, whereas in point of fact they must have been of very considerable money value.

From what has been said, I think it is plain—(1) That until 1835 the business of all the four establishments were carried on as one concern, and for the joint behoof of the whole family; (2) That from 1835 till after Mrs Aitchison's death in 1848, the business at Queen Street and Wemyss Place was carried on for behoof of all the family, except Alexander, who received for his own use the drawings of Little King Street and Register Street; (3) That ever since Mrs Aitchison's death the Queen Street business has been carried on upon the same footing. The question remains, however, For whose behoof was the Wemyss Place business carried on after 1848? Now, I think it is proved that for many years after Mrs Aitchison's death, and until about 1860 or 1861, George Aitchison continued to pay the drawings of the Wemyss Place shop to his brother the defender, for the purpose of being added to the common stock in the National Bank account. Moreover, the wheat from which the flour was made for the baking business at Wemyss Place and for the Queen Street business was all purchased by James Aitchison, and was stored in lofts in the mills, Water of Leith, and when required was gristed and carted, in the shape of flour, to Wemyss Place, where the greater part was retained, some bags being generally sent by George to Queen Street; but for the price of the wheat George himself never paid anything. All the payments for the wheat

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were made by the defender at Queen Street, generally by cheque on the general account of ‘Aitchison & Sons,’ kept in the National Bank, and the price of the offals, after deducting the charge for gristing, was regularly paid by the millers to the defender. The defender, no doubt, denies this; but the evidence of the corn-factors and millers, the most important of whom (Williamson) was not cross-examined by the defender, appears to me to be conclusive on the matter. No doubt the defender says that George gave money to James for the purchase of the wheat, and that, although the price was sometimes paid by the defender himself at Queen Street, it was generally with money given by George to James for the purpose, and rarely by cheque on the National Bank. But this is not supported by, and is indeed disproved by, the evidence; and it is, I think, clear that there never was any balancing or adjusting of accounts between George and the defender in reference to this matter. And it is not unimportant to notice that these grain and flour transactions went on in the manner just described till the Wemyss Place business was given up, although George had for five or six years retained the drawings, instead of handing them over to the defender. Then it is also proved that many of the regular Queen Street customers ordered their bread there, and were supplied by bread being sent from Wemyss Place, and that many of the Wemyss Place customers ordered confectionery there, and were supplied from Queen Street; that the eggs, butter, and sugar required in Wemyss Place all came from Queen Street, and that the biscuits, cookies, and dinner-rolls required in Queen Street were all made in and sent from Wemyss Place, without any adjustment of accounts. Further, the apprentices and other employees in Queen Street, and the journeymen in Wemyss Place, frequently performed duties in both establishments; and it is a somewhat significant circumstance that from first to last it was the uniform repute among the persons so employed that all the members of the family were equally their masters. It is, no doubt, possible that such interchange of service may have been due to the good feeling which subsisted between such near relatives, and may not have been regarded as matter of business. But I do not think that the history of this case warrants such a supposition. It appears to me that the evidence on this branch of the case, when read in the light of the other circumstances already adverted to, leads to the conclusion that the two establishments were but one concern, carried on under different names, but truly for behoof of the same members of the family.

It is necessary, however, now to notice the arguments maintained by the defender against that conclusion. In the first place, he maintains that it is proved by a written document, to which, however, his mother and his brother James were alone parties, that the Queen Street business belonged to them, and to them alone—to the exclusion of all the other members of the family. The circumstances under which that document was executed require some attention. It appears that for some time before his mother's death, Alexander, the eldest son, had been dissatisfied with the share of the family property which had been assigned to him by his mother in 1835, in the shape of the goodwill and profits of the shop in Little King Street and Register Street—and had been claiming, or threatening to claim, to participate in the profits of Queen Street and Wemyss Place. Mrs Aitchison was at this time laid aside from business, and was in very infirm health, and a document bearing to be a minute of agreement was entered into between her and her sons James and John, in which they are designed as “all residing in Queen Street, Edinburgh, and the only partners of the company carrying on business as confectioners in No. 77 Queen Street, Edinburgh.” The terms of the said agreement were as follows:—“The said parties having agreed to dissolve the said copartnery as at the term of Martinmas 1847, the same is hereby held as dissolved as at that date accordingly; and it is also declared that the said Mrs Jean Inderwick or Aitchison retired from the said copartnery as at the said term of Martinmas last, and that her good will and interest in the business now belonged to the said James and John Aitchison.” This document, which is dated 23d December 1847, undoubtedly raises a presumption in favour of the defender's contention; but that is a presumption which may be overcome by the other facts in the case. In considering this part of the case, it is material to bear in mind that Mrs Aitchison had the power, under her husband's settlement, of excluding any of her children from participation in the father's estate, and it appears that about or shortly before the date of this document she had exercised this power by a codicil to her own will and by a separate writing relating to her husband's estate, whereby she excluded the pursuer from all share in either her own or her husband's estate, although she had previously intended the whole to be divided equally among all her children, all of whom appear to have regarded the property which their mother had accumulated, and the business in which she was engaged, as truly her husband's estate, enlarged no doubt by her good management and the aid of her children, but still her husband's estate. In this light, at all events, the pursuer regarded the matter—for shortly before this an event took place in his history which must not be lost sight of. He was in 1846 sued for damages for breach of promise of marriage by a certain Maria Eliza Tucker, and it was in consequence of the scrape into which he had thus got that his mother excluded him from all participation in his father's estate and her own. The case went to trial, and the jury returned a verdict for the pursuer (Miss Tucker) for £200—but she accepted a less sum, and assigned her decree on 31st December 1847 to his brother Alexander, who appears to have advanced the amount. The action had libelled the defender (the present pursuer) as a partner of the firm of Aitchison & Sons, but in the defence it was stated that he was not a partner of that firm, and upon this circumstance the present defender now founds, as proving his case that the pursuer was not then and never was a partner. Now, even if it were necessary for the pursuer's case now to make out that there was a proper partnership between him and the other members of the family, I do not think that the statement made for him in the defences against Miss Tucker's action can be so used against him. Technically, perhaps, the statement was perfectly true, inasmuch as no formal contract of copartnery had

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ever been entered into by the pursuer or anybody else. But the defences seem to have been the composition, not so much of the pursuer, as of Mr Wotherspoon, S.S.C., his agent, with the assistance of James and John, who desired to get the pursuer out of the country pending the litigation, and the statement in question was made after the pursuer had explained to his agent the position which he held of being interested in the family property, including the business—but only in expectancy, as being subject to exclusion by his mother if she should see fit to exclude him.

Thus, while I think the statement made for the present pursuer in that action was literally true at the time it was made, it cannot prevent him from now maintaining that he is, and has all along been, interested in the family property and business, and for that purpose it is not necessary for him to make out a contract of copartnership with his mother or his brothers and sister.

After this, Mrs Aitchison died on 4th January 1848, and a meeting of the family was held on 27th November thereafter, called by Alexander for the purpose of, inter alia, reading the settlement of Mrs Aitchison. Mr W. R. Baillie, W.S., produced the settlement, dated in 1830, and the codicil thereto, dated 6th August 1847, and the relative writing of same date dealing with her husband's estate, all of which were read to the meeting. There was then also produced to the meeting the minute of agreement, dated 23d December 1847, in reference to the dissolution of the copartnery between Mrs Aitchison and her sons James and John. Thereafter, on the narrative that the codicil and other writing referred to, in so far as dealing with the pursuers and the heirs of his body, had “been executed by the deceased in consequence of special causes” ( i. e. the pursuer's entanglement with Miss Tucker, and the proceedings against him at her instance), “which had now ceased to exist, and that the deceased had also resolved, if she had been spared, to cancel” the said codicil and other writing, the meeting agreed to hold the same as cancelled, and to renounce all benefit which they and each of them might derive under the same, and to divide the estate of the deceased, heritable and moveable, in the same manner as if such codicil had never been executed, and also to execute all deeds which might be necessary for carrying the minute into full effect. Now, this minute is signed by all the members of the family then alive, excepting Alexander, and neither he nor any of his brothers or sister stated any objections to the minute of dissolution on the ground that it incorrectly stated Mrs Aitchison and her sons James and John as having been the sole partners in the Queen Street business, and James and John as being now the sole partners. And so far the minute is in favour of the defender's views. But upon this point Charles gives an explanation, the import of which is, that Alexander had frequently complained that he was not satisfied with what had been done for him at his marriage, and that at the time of his mother's death he was making further claims, which John and James resisted; and that James told him (the pursuer) that the minute of dissolution had been got by them from their mother to stop Alexander's claims, and that it would never be used against the other members of the family, and that it was read merely to frighten Alexander, who was then claiming to be a partner in the Queen Street business. Now, I am inclined to believe this story, as told by Charles, to be true, both because it is in itself not an improbable one, and because the defender, who was in Court during the whole of the examination of the pursuer, and was himself recalled and examined at great length after the pursuer's examination was concluded, although he denies that he himself said to the pursuer that the document was taken merely to keep Alexander out of the business, admits that Alexander was then making claims on the ground that he had not got his due share of the family profits, and the rest of the evidence shows that, although Alexander's claims were soon afterwards compromised, the so-called deed of dissolution and transference was never, in point of fact, acted on as regards the other members of the family. I am confirmed in this view by the equivocating way in which the defender explained the transaction between himself and his mother and his brother James which had resulted in the execution' of this minute of dissolution. He at first said that there was no doubt that she got a payment for it,—that he was sure there had been a balance of the books to ascertain her share of the profits, and that a balance sheet had been made up—and yet in answer to the immediately succeeding questions he flatly contradicts himself. He is asked—‘(Q) During all your experience, as having charge of the financial department of that business, did you ever on cebalance your books?—(A) Never. (Q) Did you ever make out a balance sheet in your life?—(A) Never.’ And I am satisfied that there never was any balancing of accounts or any payment by. John and James, or either of them, to Mrs Aitchison to account or in satisfaction of her interest in the business.

But matters become still more clear when the family arrangement, made in 1851, is considered. Alexander had still been pressing his claims, and the result was that on 17th March 1851 an agreement was entered into between Alexander Aitchison, of the first part, and ‘John Aitchison, confectioner in Edinburgh, on the part of his other brothers and sisters, and taking burden for them, on the second part.’ By that agreement the claims of Alexander were compromised by his accepting as his share of the family property (or, as it is termed in the agreement, the property ‘of the late John Aitchison, or of his widow or family’), the subjects in Little King Street, Catherine Street, and Register Street, and agreeing to grant a full discharge of all his claims against the other members of the family, of any kind whatever, while the remainder of the said family property, i.e., ‘the property of the late John Aitchison, or his widow and family,’ was thenceforth to be the property of the other members of the family, who were to be at the sole expense of all deeds necessary for carrying the agreement into effect. It is maintained by the defender that neither the business in Queen Street nor that in Wemyss Place was in contemplation of the parties to the agreement. But I cannot accept that interpretation of the document, because the property which was here divided between Alexander on the one hand, and the other members of the family on the other, was the whole estate which had belonged

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to their father John Aitchison, or to their mother Mrs Aitchison, and which then belonged to the family— i.e., to the family individually and collectively. Now, of what did that property consist? So far as I can ascertain from the proof, it consisted of (1) The estate which had belonged to John Aitchison at his death, and which included the subjects in Little King Street and in Register Street, the stock-in-trade and book debts and cash and other personal property belonging to him, none of which had hitherto been divided amongst his family, except in so far as Alexander had since 1835 drawn the profits of Little King Street and Register Street for his own use: (2) The savings and accumulations which had been made by his widow out of the profits realised by trading with her husband's estate, and which included the subjects in Catherine Street and 76 and 77 Queen Street, which had been purchased by herself: and (3) The businesses which were then carried on in Queen Street and at Wemyss Place by several members of the family; certain subjects in Broughton Street, Broughton Place, and Cumberland Street, which had been purchased in 1845 in the name of the whole members of the family then alive, including Alexander and Catherine; the premises at Wemyss Place, which in the titles are denominated ‘Albyn Place, Queen Street, second flat,’ and three shops in eastmost tenement in ‘Albyn Place,’ which had been purchased in 1847 in the name of James, John, and George; and a house in Ann Street, which had been purchased at the same time in name of James, John, William, and George. It also included house property in India Street, purchased in name of George in 1842, and in Thistle Street in name of William in 1847, and a considerable amount of gas shares, purchased in name of several members of the family between 1842 and 1848. I think, therefore, that the fair meaning of this agreement was that Alexander, in consideration of his discharging all claim which he might have had for further participation with his brothers and sisters in the family property above enumerated, received, as his share of that property, in addition to the businesses in Little King Street and Register Street, of which he had been in the exclusive possession for sixteen years, the subjects in Little King Street, Catherine Street, and Register Street, and left the whole of the remainder, including the businesses at Wemyss Place and Queen Street, to be dealt with by them as their own property, in which all were equally interested. But, further, this deed was acted upon and implemented on the part of Alexander, who had made up titles as heir of his mother in the premises No. 77 Queen Street, where the confectionery business was carried on, and the house above No. 76, in which the family resided, by his conveying the same on 10th April 1852 to his brothers James, John, George, William, and Charles, and his sister Isabel, and their respective heirs and assignees. Now, what followed upon this agreement on the part of the other members of the family is most instructive. On 27th May 1851 the house No. 75 Queen Street was purchased in name of James, John, William, Charles, George, and Isabel, at the price of £1600; and on 9th June 1854 Mount Vernon was purchased in name of the same six persons, at the price of £5500, the price in both instances being paid out of the general bank account kept in name of Aitchison & Sons; and the various other houses and stock enumerated were all from time to time purchased out of the same common fund, the titles being taken sometimes in name of the whole family other than Alexander, sometimes in the name of two or more members, a few small tenements only being occasionally purchased in the individual names of George, or of the pursuer, or of the defender. But in whatever names the titles to the property and stocks were taken, the rents and dividends were, as a rule, collected by John, who in financial matters acted for the whole family, and were by him paid into the general bank account as a common fund. I am therefore of opinion that, whatever weight might have been given to the minute of dissolution and transference of partnership in 1847, had it stood alone, it was never acted on, and was entirely superseded by the family agreement of 1851, interpreted as that has been by the subsequent actings of the defender himself and his brother and sister.

But, in the second place, the defender maintains that the idea that the Wemyss Place business was a part of the common concern is negatived by the actings of George Aitchison, in whose name alone that business was carried on. It appears that in 1860 or 1861, a few years before that business was given up, George discontinued taking over his drawings to Queen Street and throwing them into the common fund, and accumulated the cash in tin boxes, which he left in a cupboard in his shop in Wemyss Place until it amounted to at least £6000, or according to the defender to £10,000; and he would apparently have gone on hoarding the money in that fashion had he not been alarmed by an almost successful attempt at burglary, which induced him to deposit it in the bank. He did not, however, pay it in to the general account kept in the National Bank, but he seems to have divided it between himself and his brothers William and the pursuer, £2000 having been deposited in the Royal Bank in the name of each, and his subsequent drawings, and the sum which he obtained from Mr Neil, to whom he sold the business in 1865, appears to have been applied either in making investments in his own name or in payment to his brothers Charles and William. This, however, is explained by the pursuer in his evidence to have arisen from a suspicion which these three brothers had come to entertain, that the defender in his financial management of the common fund was taking too good care of himself, George having repeatedly asked the defender to exhibit a balance sheet, which however he could not obtain. The defender denies that a balance sheet had ever been asked, but I think it is in the circumstances highly probable that such a demand was made, and that George's reason for accumulating the Wemyss Place drawings in his shop instead of handing them to the defender was to prevent further funds going into the defender's hands until he had explained his past actings, but that he intended on receiving proper explanations to hand the amount to the defender. And it is not a little remarkable, that although George's proceedings appear all to have been known to the defender, he still continued, until the death of George in 1874, to invest the fund accumulating from time to time in the National Bank account, kept by him in name of Aitchison & Son, in purchasing property and stock in name of the different members of the

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family, including George. This is admitted by him in the record, and is very clearly brought out by the list of investments, from which it appears that between the years 1863 and 1867 sums amounting in all to not less than £20,750 were applied in purchasing house property in the names of James, John, George, William, Charles, and Isabell, in equal proportions, the name of James being omitted in the purchases made after his death in 1866. Now, all this is quite inexplicable on the theory of the defender. If it had been the case that he and James, till the death of the latter in 1866, and the defender himself after that date, were the sole partners of and persons interested in the firm of Aitchison & Sons and the Queen Street business, and if George had no interest in that business, it is quite inconceivable that he would have gone on making these large investments in the way above described with funds in which, according to his theory, none of the other members of the family, and least of all George, had the slightest interest. On the other hand, all that was done is just what might have been expected to have been done if the pursuer's theory be, as I think it is, the correct one. I cannot doubt that the defender went on making these investments after George discontinued to pay the drawings into the common account simply because he knew that George had a right to demand the accounting for which he was pressing, and he therefore did not venture to insist upon George handing over his drawings while he himself was refusing to account for the past. He says that he made the investments ‘to keep the family together,’ which, I take it, is another way of saying that he did it ‘to stop their mouths’ by an occasional payment to account, and thus to defer the day of general reckoning.

But it is here right to notice another explanation given by the defender of his reason for making these investments. It is this:—He says that when the rest of the family combined to get Alexander paid off, and his claims discharged, they agreed that each should execute a mortis causa settlement, by which everything of which he or she should die possessed should go to the other members of the family and the survivor excepting Alexander, and that shortly after the date of the agreement each of the family executed a will in those terms, and the whole were taken by the defender into his own custody. And he says that as the property of every member of the family would thus come to the survivor, it was immaterial how the funds of each were invested, and that he therefore, on the faith of these wills, invested the funds of Aitchison & Co., which he says belonged to himself and James alone, in the way already described. The only one of these wills which has been printed is that executed by James, who was the first deceaser, and who died in 1866; and assuming the other wills to be similarly expressed, it appears that these were not mutual settlements. None of them refers to the settlements executed by the other members of the family, and each reserves full power to the granter at any time to alter, innovate, revoke, or annul the settlement. I therefore can attach no weight whatever to the defender's argument, that James and he made the family investments referred to on the faith of his being in possession of these several wills.

Before concluding, I should also notice that the defender, in support of his pleas that the confectionery business of ‘Aitchison & Sons’ belonged exclusively to his mother and his brother James and himself, has produced two or three indentures between that firm and apprentices, in which partnerships are referred to. The first indenture is with Mr Ramsay, and is dated 19 th November 1824, at which time the business was carried on exclusively in Little King Street and Register Street. The masters are there described as ‘Mrs Jean Aitchison, widow of John Aitchison, lately baker there, Alexander Aitchison, and James Aitchison, bakers there, carrying on business under the firm of Mrs Aitchison & Sons.’ The other two indentures are dated 29th May 1830 and 29th November 1833 respectively, after the Queen Street business was started. The masters are there described as Mrs Jean Aitchison, James Aitchison, and John Aitchison, carrying on business under the firm of Aitchison & Sons, confectioners in Edinburgh.’ Now, it is remarkable that no indentures after 1833 have been produced. The defender says they had no apprentices after that time, but that must be a mistake, because the evidence shows that, at all events up to 1851, there were always several apprentices—certainly more than two. But this is really a matter of little moment, because until 1833, when the last indenture produced was entered into, Mrs Aitchison and her three eldest sons, Alexander, James, and John, were, excepting George, the only members of the family who were from their age qualified to carry on business or to undertake the teaching of apprentices. The other members of the family were either engaged in other occupations, or were as yet too young, and George was not a confectioner; and although the fact that Mrs Aitchison and certain of her sons held themselves out to their apprentices, and even to the public, as carrying on a confectionery business under a social firm, would have undoubtedly made them liable to the public as partners, it does not, as between the members of the family, create any presumption that such partnership was for their own behoof alone. At all events, any presumption so created must yield to the facts.

Now, I think that the facts proved in this case abundantly establish that although Mrs Aitchison and her sons James and John may have chosen to call themselves partners, they carried on their business, not for their own behoof alone, but for behoof of all the other members of the family; and that as these members successively came into the business and devoted their time and attention to it, they were in reality, though not perhaps in form or in name, partners also. Indeed, I think it is clear that after 1835—at all events after 1851—if the concern of Aitchison & Sons had got into difficultes, every one of the sons and daughters would, when the facts came to be inquired into, have been held liable for the debts of the concern as partners, in respect of their interest in the capital and profits of the business.

On the whole matter, therefore, I think that the defender is bound to hold count and reckoning with the pursuers in all the matters specified in the conclusions of the summons. The estate of John Aitchison, the father, formed undoubtedly the capital out of which the present business was created, and the defender, by joining his mother in managing that business, is liable to account for the original capital, none of which can be said to have been dissipated by the widow. Then, as a surviving executor of his mother, and as the

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representative of James his brother, another executor, and as undoubtedly an intromitter with her estate, and as indeed admittedly the general financial manager for the whole family, he is bound to account for his intromissions with her estate. And, finally, as the general financial manager of the business of Aitchison & Sons, in which his brothers and sister were equally interested, he is bound to account for all his intromissions therewith, including the drawings from Wemyss Place, in so far as received by him or accounted for to the general fund under his management. But as George Aitchison withheld some of these drawings for some years, and as the amount so withheld was either appropriated by George or given by him to his brother William and the pursuer, and as the pursuer represents both of his said brothers, it is necessary, in order to do justice to all concerned, that the drawings, in so far as not received by the defender, should now be accounted for by the pursuer and taken into account in the general count and reckoning.”

At advising—