Scottish Court of Session Decisions

The Earl of Rosebery, as heir of entail in possession of entailed estates situated in the counties of Edinburgh and Linlithgow, presented this petition praying for authority to sell the sum of £5110, 18s. 9d. of consols, and to borrow the proceeds on the security of his fee-simple estate of Malleny.

This sum represented the compensation money paid for part of the entailed estates acquired by the Forth Bridge Railway Company. It had been invested in consols in the names of the Honourable Bouverie Francis Primrose, C.B., and Mr James Auldjo Jamieson, W.S., as trustees for the petitioner and the succeeding heirs of entail.

On 1st May 1888 Mr John Montgomerie Bell, W.S., was apointed curator ad litem to the heirs of entail first and second next entitled to succeed, who were then in pupillarity.

On 12th May 1888 the Lord Ordinary ( Trayner) granted the prayer of the petition in so far as it related to the sale of £5110, 18s. 9d. consols.

With reference to that portion of the prayer in which the Court were asked to authorise the loan of this money by the trustees to the petitioner, the Lord Ordinary reported the petition to the First Division.

“ Note.—The petitioner prays the Court (1) to authorise the sale of certain stock held by trustees for behoof of the heirs of entail of the estates of Newhalls and others, of which he is at present the heir of entail in possession; and (2) to authorise the said trustees to lend the proceeds of such sale to the petitioner ‘on the security of his fee-simple estate of Malleny.’ The first part of the prayer I have granted, but with regard to the second part it is pointed out by the reporter that in the case of Innes, 10 D. 870, a case in all essential particulars the same as the present, it was announced by the Lords of the Second Division (after consultation with the other Judges) that it had been ‘determined never again to sanction the money being lent to the heir of entail himself.’

That being so, I regard myself as precluded from considering whether the authority prayed for is unreasonable in itself, or from doing anything except giving effect to the determination of the Court so announced. The Court, however, may reconsider, and if it think fit alter the decision announced in Innes' case, and I have reported this matter that the petitioner may have the opportunity which he desires of being heard thereon before the Court.”

Argued for the petitioner—The case of Innes was decided before the passing of the Rutherfurd Act, which made material alterations on the law of entails. Besides, in that case the same party was both borrower and lender, while in the present case there was in existence an independent trust. The only practical question was the sufficiency of the security; that could be ascertained by a remit to the Lord Ordinary, and all other interests were fully protected by the trustees— Innes, Petitioner, March 8, 1848, 10 D. 870.