Thos. Graham - Giffor - Wedderbur - Alison v. Jas. Graham - Warre - Sugde - Robertson [1823] UKHL 1_Shaw_365
[1]That as his attorneys (with whom the respondent voluntarily transacted suo periculo) had no authority to enter into the compromise, the appellant could not be bound by it to any greater extent than that to which he had consented:—that he had declined to give anything on account of the house and political interest; and, besides, as it was left to his discretion to say whether he would allow anything for them, it was not competent to compel him to do so.[2]That the summons did not allege that the appellant had ever consented to the transaction with the attorneys, but merely averred that he had entered into possession by virtue of that transaction, and of the decree of declarator, which was not qualified with any condition that the appellant should pay any thing to the respondent, and was of itself a sufficient title; and therefore the summons did not state any cause of action which could warrant the decrees that had been pronounced.[3]That the agreement was in itself of such a nature as a Court of Law could not enforce, being an attempt to defraud, the will of the truster.[4]That political interest was not a subject on which a Court of Law could put a value; and that; in interpreting the contract, the Court was not entitled to assume that by political interest was meant the superiorities; and that, even if it were so held, it could not have been the intention of the parties that these Footnote * Not reported. Page: 377 ↓ superiorities, independent of the feu-duties, (of which the respondent had received one half,) were to be valued; because it was not possible to convert the superiorities into money, and at the same time to reserve the feu-duties.[5]That the Court were not entitled to send an issue to the Jury Court to estimate the value of the superiorities, seeing that the agreement referred specially to ‘political interest,’ and the interlocutor, by which it was found expedient that the case should be tried by Jury, was limited to ‘political interest;’ and besides, that the verdict merely estimated the value of the superiorities, without saying anything as to the political interest, so that no answer had been made as to the point on which the Court made the remit: And,—[6]That, at all events, as the sum decerned for had not been ascertained and constituted till the verdict of the Jury, it was not consistent with law to find the appellant liable in interest prior to that period. To these pleas it was answered,—[1]That the appellant, both by his letters and by his acts and deeds, had sanctioned and homologated the transaction with his attorneys generally, and he was not now entitled to object to it; and therefore, if he refused to put a value on the subjects, as to which he was made the arbiter, a Court of Law was entitled to interfere and do justice.[2]That although it was not expressly stated on the face of the summons that he had sanctioned the agreement, yet it was substantially so averred there, and expressly on the record of the process.[3]That the agreement was perfectly legal; and it was extremely doubtful whether the condition imposed in the trust-deed on the respondent was effectual in law; and if it was not valid, the agreement was undoubtedly unobjectionable.[4]That by political interest the parties meant the value of the superiorities, which of themselves, and independently of the feu-duties, and as giving an elective franchise, had a commercial value, and accordingly were daily sold and bought.[5]That, in remitting the case to the Jury Court, the words ‘political interest and superiorities’ had been used synonymously, and as explanatory of each other; so that there was nothing inconsistent between the interlocutor and the issue, nor between the issue and the verdict: And,—[6]That as the appellant ought, on his arrival from India, to have put a value on the subjects, and paid the one half to the Page: 378 ↓ respondent, and as he failed to do so, the respondent was entitled to interest from that period. In the course of the discussion at the Bar on the above points, The Lord Chancellor asked—What is the letter you say contained what the law would call a ratification? The letter in 1803 does not prove that the appellant knew that the marriage had actually taken place, and that the respondent had at that time forfeited. Mr. Sugden. —At the bottom of the original letter of 5th April 1803, it appears that he approved of the marriage. Lord Chancellor .—Suppose that to be so; but could any Court be a party to an agreement, because he afterwards approved of the marriage—that marriage taking place without his knowledge—and at any rate, whatever may be the feelings among parties, nothing can be clearer than this, that where a trustee and devisee set about together to disappoint the will of a testator, it should be as clear as daylight what is meant, before a Court ought to interfere. It is impossible in the nature of the thing, that, when he wrote in 1803, he should know of the marriage. Then the question upon that letter will be this:—Supposing he had given his consent to the marriage antecedent to the marriage, and it took place upon that antecedent consent, and so taking place he was bound; yet, if it had not been had before the marriage, would he have been bound at all? Mr. Warren. —I will state the words of the letter which are not printed. It is stated that he approved of the whole transactions. The letter is dated the 8th of April 1803, from Calcutta, part of which is set out at the bottom of page 6. In that letter there are these words:— “Having little doubt of the information given me some days ago by Mr. Anstruther being correct, when he read an account of your marriage of the 10th October.” Lord Chancellor .—Take this along with you. You yourself state in your Case, that, before any communication could reach the appellant, the marriage took place. Mr. Warren. —That is so, certainly. Lord Chancellor .—Then the question would arise—Suppose Mr. Thomas Graham had agreed, before the marriage, that the forfeiture should not operate wholly, could he, or could he not, have insisted that it should, after it had taken place? Mr. Warren. —I apprehend that might depend upon the terms of the letters subsequently written. His words are, “Having little doubt of the information given me some days ago.” Page: 379 ↓ Lord Chancellor .—That is subsequent to the marriage taking place. Mr. Warren .—It is not in the printed Case, my Lord; it is a letter of the 8th of April 1803, part of which is in the printed Case. But what I am going to read is not, and it is this:— “Having little doubt of the information given to me some days ago by Mr. Anstruther being correct when he read an account of your marriage of the 10th October, I beg leave to offer you and Mrs. Graham my most sincere congratulations on the occasion, with best wishes for a long enjoyment of that domestic felicity only to be found in the marriage state. I trust the day is not far distant of having the happiness of assuring you personally of how much I am your affectionate uncle, Thomas Graham.” Lord Chancellor .—I suppose nobody will deny that if, before that letter was written, you had brought an action in the Court of Session to implement this agreement, you could not have succeeded. Will that letter give you such a right? Mr. Warren .—He wrote it with a view to all the preceding transactions, and writes it as confirmatory of the transactions entered into by his attorneys with his nephew. In reference to the question as to the political interest, The Lord Chancellor observed:—Without prejudice to any observation on the law of Scotland, let us see what the law of England would be. Suppose two persons had made an agreement, each to purchase the political interest of the other; and from the agreement it should be clear that the political interest was to have a value set upon it, and set upon it by the individual himself; and taking it that the law of England is that which we suppose it to be—not meaning to say it is, or it is not:—if the individual would not put a value upon, the political interest, would any Court put a value upon political interest? But an issue has been here directed to find what is the value of the superiority and the political interest; and the verdict states only the superiority; but the verdict does not go to the whole of the issue. In regard to the objection as to the terms of the summons, The Lord Chancellor observed:—In the first place, I would ask you to be kind enough to look at your summons. It proceeds upon this, that this Mr. Graham was in India, and that these persons were his attorneys, who could not, without his previous authority or subsequent authority, enter into such a transaction as this for him. The agreement, you will observe, is in September 1802. This gentleman marries immediately Page: 380 ↓ afterwards, and then there is a long period before it was possible that Mr. Thomas Graham could know anything in India of the matter. Then there is an action of declarator, raised in the Court of Session, stating to that Court there had been a forfeiture of the estate, which action is followed by a decree of forfeiture so early as January 1803. Now I should be glad to know the effect of that. The estate is forfeited, and a decree of forfeiture is pronounced in January 1803, previous to April 1803; and of course I suppose nobody can say, that when Thomas Graham, the appellant, wrote the letter in April 1803, he was cognisant of the fact that there was that action and forfeiture. I wish, therefore, to know—however honest and proper the agreement might have been in a moral point of view—whether Mr. Thomas Graham could be compelled to act under that agreement, entered into by his attorneys? It is stated in the summons, “that the said Thomas Graham is now in possession, in virtue of the aforesaid transaction and agreement.” But if that was the transaction or agreement, and if he could not be recognised as being acquainted with the nature of this agreement between these two parties, could your client, under this testator's will, and after the decree of forfeiture, have gone to the Court to rescind this decreet; and if not, could that decree be a ground for carrying into effect any part of the agreement? Mr. Sugden. —The action was raised by the trustees under that agreement. Lord Chancellor .—But they had a right to sue; and if, in the execution of their duty, they had a right to sue, and to call upon the Court to have a forfeiture declared, then the question is—Whether, after such a transaction, the Court will interfere as to any part of such agreement? The first thing is, to get rid of the want of the allegation in your summons of the subsequent approbation of the agreement. Mr. Warren .—It appears by the letter of April 1803 that the whole of these transactions must be considered as ratified by Thomas Graham, for he takes his share of moveables. Lord Chancellor .—He did; but that was by virtue of the decree, which had passed without his knowing anything of it. Mr. Warren .— He would not perhaps know what were the terms, though he knew of the thing that was to be done. I am not sure whether your Lordships mean that something more ought to be stated. Lord Chancellor .—I do not think his approbation is sufficiently shown in the summons. You are called upon to make such an allegation in the summons, and not to act upon moral representation; and besides, this is an agreement between two Page: 381 ↓ persons claiming under this will, in direct fraud of the testator's intention—a legal fraud, but still in its nature such, that the claim made upon the effect of such transaction should leave nothing in doubt. Mr. Warren .—I was upon this point, whether such an action could be maintained. There is a case which has never been overruled in Pere Williams:—Two agreed to divide the property by a will. I am aware that case has been doubted, but it has never been overruled. Lord Chancellor .—There is a case where two persons agreed, that if a testator left unto one of them the whole of his property, and which the testator did, meaning the other should have none, they would divide it. In that case of Pere Williams, the agreement was held to be a good agreement, but in subsequent cases it has been stated that the Court would not accede to that doctrine. Suppose this had been an agreement free from all observation, you might have gone into the Court of Session; instead of which, the Court of Session proceeds upon this as a forfeiture—as an unsanctionable breach of the testator's will, and in consequence shifting the property of the testator's estate. Mr. Warren .—Upon that I should say, that it was for the appellant, if he chose, not to take advantage of it, by allowing a forfeiture to be made in the way in which it appears to have been made, and to content himself by taking such portion as he was allowed to take. Lord Chancellor .—You were in too great a hurry to be married. You were in so great a hurry, that you got married before it was possible you could know what had been proposed by persons who were called his attorneys. That is not the whole of this transaction. After this takes place, a suit is immediately instituted to make a forfeiture. The appellant could not have known of the suit, or the decree of forfeiture. Then you state nothing in your summons of subsequent approbation, though you talk about it. The next question is, whether that amounts to a legal obligation to repel fraud? Mr. Warren .—Your Lordships know the summonses in Scotland are not drawn so strictly as pleadings in this country. Lord Chancellor .—The question is, whether you can enforce it? Mr. Warren .—That is supposing it to be an objection which the Court must take, it not having been taken by the defender below. Mr. Attorney-General .—I take the objection, and so I opened it. Page: 382 ↓ Mr. Warren .—I am talking of the forfeiture—not that to which my learned friend alludes. It is a different question whether the contract could be enforced: it is one thing to know whether you would allow an action to be brought in consequence of the forfeiture. Lord Chancellor .—There is another way of putting it. Take your summons from the beginning to the end, it contains no allegation of subsequent approbation, except that this gentleman is in possession of the estate by virtue of these transactions. There is no letter written to that effect. But because he takes possession of the estate which has been forfeited, would that ratify the acts of his attorneys, arising out of a marriage to which he was no party? Then comes this question: If you have not alleged subsequent approbation, independent of his taking possession, whether the summons contains any cause of action whatever? But if the summons contains no cause of action, there can be no judgment. If, then, the only cause of action which is laid in the summons is, that this person, in consequence of this agreement and transaction, took possession of the estate—if they have produced a decreet of forfeiture in his favour, and he was not a party to these transactions previously—what was there to hinder him taking possession of the estate? He has a right to say, they acted as my attorneys, but for this purpose they were not my attorneys. This young gentleman has married, and here has been a decreet of forfeiture. I was no party to the marriage; and the attorneys had no authority from me to sanction the marriage; and I will take possession. Here is a judgment in my favour. Mr. Attorney-General .—It is stated that it was by virtue of the decreet he took possession. Lord Chancellor .—That is exactly what I state. Mr. Sugden .—How could it be otherwise? Mr. Warren .—There is certainly no allegation of subsequent approbation upon the face of the summons. That cannot be denied; but that did not appear to be an objection in the Court below, either to the Judges or to the counsel. The House of Lords “ordered and adjudged that the interlocutors complained of in the said appeal be, and the same are hereby reversed.” Lord Chancellor .—My Lords, there is a very singular case which was before your Lordships a few days ago, in which Thomas Graham, Esq. of Kinross in the county of Kinross, is appellant, and James Graham, the illegitimate son of the late George Graham, Esq. of Kinross, is respondent. This was an action brought by the respondent to have paid to him, Page: 383 ↓ as the son of the late George Graham, the sum of £15,000; and that demand arose out of the following circumstances: A Mr. George Graham, since deceased, was the unlimited proprietor of the estate of Kinross in Kinross-shire. Mr. James Graham, the respondent, was his natural son. He had formed an attachment to Miss Muter of Annfield, from which his father apprehended that a marriage might follow. Of this attachment the father disapproved, and he intimated his unalterable prohibition of such a connexion; and in order to prevent it, on the 27th of July 1801 he executed a trust-disposition and settlement, by which he conveyed his whole estates and effects, heritable and moveable, in favour of his trustees, Thomas Graham the elder, who was a gentleman at that time in India in the service of the East India Company,—Colonel Alexander Park,—Robert Graham, now Moir, a physician in Stirling,—John Anstruther of Arditt, advocate,—John Græme, writer to the signet; and John M'Glashan, writer in Edinburgh,—and the acceptors, and survivors or survivor of the acceptors; “declaring always, that these presents are granted by me in trust only for the use and behoof of myself during my own lifetime, and at my death, in the event specially after mentioned, only for the use and behoof of James Graham”—that is, his natural son—‘my only son in life procreated betwixt me’ and a lady whom he mentions, “and the heirs male or female that may be lawfully procreated of my own body; whom failing, the said Thomas Graham, my brother consanguinean”—that is, the gentleman who is the appellant, “and the heirs lawfully procreated of his body.” Then there follows this:— “That whereas the said James Graham, my son, has for this some time past formed or threatened to form a matrimonial connexion with Miss Muter, daughter of Mr. Muter of Annfield, much contrary to my wishes or intention; and that it is my fixed determination, if he either already has formed or shall hereafter form such connexion with that lady, or with any other lady except Miss Anna Maria Graham, eldest daughter of the said Thomas Graham, my brother consanguinean, without my consent, or the consent of the majority of my trustees surviving and accepting at the time, that the said James Graham shall take nothing under the present settlement, he being thereby in such event expressly excluded and debarred from any share of my said estates, real and personal: Therefore the said trustees shall only denude in favour of the said James Graham, my son, in the event of his having married, excepting as said is, with my consent signified in any way, or marrying with the consent of a majority of my trustees surviving and accepting at the time, previously had and obtained in writing, and no otherways: And in the event of his dying unmarried, or marrying without consent as aforesaid, (except as said is,) the trustees shall, immediately after either of these events happening, denude of my foresaid lands and whole other estates, real and personal, in favour of the next person appointed to take under the substitution before set down, who shall be at liberty to enter into the possession of the said landed and personal estate, in the same way, as if the said James Graham had never been mentioned in this deed, Page: 384 ↓ he and the heirs of his body procreated of any marriage without consent as aforesaid being hereby totally excluded from taking anything in virtue of this deed, excepting such payments, by way of a reasonable annuity, which my said trustees are to be judges of, as he may have actually received previous to the marriage.” My Lords, George Graham, the author of this settlement, died on the 18th of December 1801, at which time the respondent had made an offer to marry Miss Muter, which, it is stated, he could not in honour withdraw. During this period the appellant was in India, and after his father's death, the respondent James Graham endeavoured to obtain the consent of the trustees to his connexion with Miss Muter, inasmuch as he conceived, that if he could obtain their consent, he would not forfeit the estate. The trustees, however, thinking themselves bound to attend to the wishes of the testator, refused to give their concurrence. In consequence of this, the appellant having certain attorneys in London, namely, Mr. George Templar, Mr. Nathaniel Middleton, Mr. Richard Johnston, and Major John Hume, applications appear to have been made to those attorneys of the appellant, and transactions to have taken place between the respondent and those attorneys; with respect to the entering into which transactions, and the final agreement which was the result of them, it appears to me to be perfectly clear that those attorneys had no authority whatever to enter into that agreement, which by its own force could bind the appellant not to take advantage of the forfeiture, if the respondent committed one. However, my Lords, it appeared that the respondent set about making a compromise with the appellant's attorneys, to secure to himself one half of the value of his father's property; and he wrote to those attorneys, who were unauthorized, as it appears to me, for this particular purpose, a letter, dated 7th September 1802—[His Lordship then read the letter, see ante, p. 367.]—The attorneys of the appellant, as the Cases upon your Lordships' table state, “were clear that two things should be excluded from the valuation;” and then follows the statement which raises the real question in this cause, “that there should be excluded from the valuation, as being subjects which no way augmented the value of the estate, the house of Kinross and the political interest attached to the estate.” The Cases then proceed to state why that house ought not to be made the subject of valuation, and why the political interest should not be made the subject of valuation. I need not trouble your Lordships with stating at length that which has been so often stated—the nature and effect of these letters; but, after a good deal of correspondence, in which there are expressions which are made on both sides the subject of much discussion, Mr. Keith, to whom the value of this property had been referred, having died, and Mr. Selkrig having been nominated by Mr. Adam in his room, a report was made by Mr. Selkrig, of which there is an abstract in the papers, followed by remarks which relate to the mansion-house at Kinross, and the political interest arising from the qualifications, and the eventual benefit to be Page: 385 ↓ derived from that property. I ought indeed to mention the fifth article which is excluded—“the casualties or compositions payable upon the entries of heirs and singular successors of vassals on the estates.” On considering that report, the following award was pronounced by Mr. Adam:— “I perfectly approve of the principles on which Mr. Selkrig has estimated this property, and make the division according to this valuation; and I decide, according to the powers vested in me, that they do make the division accordingly; and I do not consider that any of the articles stated in the remarks should be allowed to constitute any part of the value.” Some of the articles mentioned, your Lordships observe, are the mansion-house of Kinross, and this thing called political interest. “I make one exception, however, to this generality. I consider that the avenue and green of Kinross house should be valued as grass, and not for tillage. Subject to this deduction, my award is, that the value put by Mr. Selkrig be the value on which the parties are to transact.” My Lords, a great deal of correspondence follows after this, which seems to close, or nearly close, with a letter which strikes me with being of great importance in this cause. It is a letter dated the 26th of March 1806, which is addressed, ‘To the Attorneys of Thomas Graham, Esq.’ and is in these words:— “Gentlemen—As the accounts between my uncle, Thomas Graham, Esq. and myself, so far as respects the heritable property of my late father, George Graham, Esq. of Kinross, are now finally settled, and mutual discharges ready to be granted by you, as my uncle's attorneys and myself; and as it appears to be your wish to have some information respecting my ideas of the points reserved in the submission to Mr. Adam—namely, the value of the house of Kinross, and the political interest of the estate,—I have no hesitation in declaring that I have no legal claim on my uncle, Thomas Graham, Esq. for either of these objects; but that, in terms of my agreement with my uncle's former attorneys, they are to be referred entirely to my uncle himself.” My Lords, I observe in passing, that there are various missives between these parties, up to this date, which have various expressions and passages in them, to which criticism may impute different meanings. But the real question, I apprehend, here is, what the parties meant? And I know of no better way of considering this, than by looking at the clear expressions in which the party states what is his own view upon the subject. My Lords, it is only necessary to mention to your Lordships, that, excluding these subjects, the attorneys did agree—certainly without authority, but nevertheless what they did agree to might afterwards be sanctioned by the party interested—they did agree to a value being set upon those other subjects and matters in discussion in the transaction, and to the appellant receiving a moiety of the value. I do not take notice of the circumstance of their want of authority, except so far as that want of authority goes to matters to which the appellant did not agree. My Lords, as soon as the agreement, so far as understood between the parties, had been made—but, though so far understood, there is an express letter by which the respondent undertakes to indemnify the trustees, Page: 386 ↓ in case the appellant should afterwards call upon them in consequence of the forfeiture about to be incurred—Mr. Graham, the respondent, married the lady long before it was possible that a communication could be received from India by the appellant, and thereby incurred the forfeiture; and having incurred that forfeiture, the appellant appears to have heard of the fact of the marriage some six months, I think, after the agreement had been entered into. But it was quite impossible that at that time he could have heard there had been a decree of forfeiture in the Court of Session; for the parties applied to the Court of Session, and stating this forfeiture, they called for a declaration of the forfeiture; and the Court proceeded upon this as a bonâ fide transaction, and on the respondent having incurred a forfeiture. The Court, to carry into effect the will of this testator, if I may describe him as such, did (and they could do no otherwise) declare this a forfeiture, and that the estate belonged to the appellant. My Lords, the appellant afterwards came to England; and, for nine years after his return to England, no demand of the sort made in the suit which I am about to mention was made by the respondent—to be allowed to participate in the value of the house at Kinross, and what is called the political interest. But, at the end of nine years, an action was raised by a summons, on which some observations have been made in the hearing, but on which I do not mean to trouble your Lordships; for, in my view of the case, it ought to be decided entirely upon the evidence, which sets forth the demand of the respondent himself, that he had no legal claim whatever to participate in the value of those subjects. I will however just remark, that the summons states the gentlemen in England to be attorneys of the appellant, which they certainly were, but not attorneys authorized for this purpose at all; and states the decree to have been obtained from the Court of Session, as a decree that was due upon an acknowledged forfeiture, without one single syllable stated to the Court as to the agreement under which this forfeiture had been made—an agreement obviously entered into to defeat the disposition of the testator. It simply states, without entering into particulars, that this gentleman, the appellant, entered to possession by virtue of that decree; and then it prays that those matters may be made the subject of valuation—I mean the political interest and the house at Kinross, the respondent himself putting a value upon them of £15,000. My Lords, the correspondence that was referred to for the information of the Court of Session, is stated in different parts of the papers; and I take leave to observe in this place, that we are often extremely misled by the summons, if we do not bear precisely in mind the nature of these summonses. In our part of the island, where the general issue is pleaded, you give in evidence any thing which can be considered as evidence in defence; but if you are proceeding rather more as the Court of Session proceeds than in our Common Law Courts—that is, as a Court of Equity—you must in your bill in Equity, (which is analogous to a summons in the Court of Session,) if you mean to take up the circumstances, state a great Page: 387 ↓ number of circumstances which you are left in these cases to find out, not from the record, or that part of it called the summons, but from allegations and admissions here and there dispersed through a variety of papers. My Lords, I pass over the nature of this suit, as it respects the circumstances, with saying no more upon it than this, that where a suit is brought for the purpose of carrying into effect such a claim as that which is made on the part of the respondent, (in this case the pursuer in the Court of Session,) one thing, I think, one may venture safely to state, that, considering the nature of the suit, and the nature of the questions that arise in it, it is absolutely incumbent upon such a pursuer to leave no doubt whatever with respect to what were the facts of the case, and what was the legal meaning of the agreement. In the first place, this is a suit proceeding on a contrivance to destroy the disposition of the testator entered into between the two objects of his bounty;—in the next place, it is founded on a decree which the Court of Session had been called upon to make, for the purpose, apparently, of carrying into effect that disposition, but without its being intimated to the Court of Session that the very purpose for which they were applied to, was to defeat the very object which was the prayer of the application;—and, in the last place, whatever may be said upon the subject, it may be stated at least as a very delicate sort of proceeding, suing in a Court of Justice, to carry into effect an agreement for the value of political interest. I do not state these objections to the proceedings as decisive; but I think they call upon your Lordships to see that the party clearly makes out his case. The suit proceeded upon the ground, that the appellant was bound by agreement to part with the house of Kinross and the political interest upon certain terms:—that he had no option whether the political interest and the mansion-house of Kinross should or should not be subjects of valuation; but that it was left to himself entirely to say what the value should be, it being nevertheless incumbent on him to permit a valuation to be made; and then the Court of Session say, according to cases which have been determined, that in as much as he would put no valuation upon these subjects, they, the Court of Session, will take upon themselves the execution of that duty; that as he would not put a value on subjects of which he was bound to permit a valuation, the Court of Session must put that value—and the respondent professing, that if any thing like a reasonable value had been put upon the subjects, he would have been content. For the purpose of this cause, it does not appear to me at all necessary to enter upon a discussion of that view of the case; because the way in which I look at this question is this—I first of all say that the respondent, who is here the pursuer, was bound, in a case of this nature, to make out facts that left no doubt whatever as to the matter of fact upon the mind of the Court; —in the next place, that those attorneys had no right whatever to bind the respondent;—in the third place, that it comes to this, How far has the appellant adopted or not adopted their acts? The appellant contends that he was (and nobody can deny that he was) in circumstances in which he might have said (and indeed the respondent admits it by giving an Page: 388 ↓ indemnity which the supposed attorneys in this country called for,) that the appellant was under no obligation whatever to concur in such an agreement as this; and it is a fact indisputable, that the decree of forfeiture had actually passed before he could hear of the matter. He might nevertheless bind himself, though it is difficult to say what consideration he could have for binding himself under such circumstances. In the letters which passed both before and after, as I before observed, there are expressions which may be construed, some of them as importing that he was to set a value upon the premises, and that that value the respondent was to permit. Others of those expressions import that he was, if he thought proper, to make them the subject of valuation: or, in other words, that this young gentleman meant to refer to his honour and his good pleasure whether these matters should or not be the subject of valuation. Then, my Lords, is it not a much safer thing for your Lordships to proceed upon the construction this party has himself put upon his correspondence, than upon the construction put by counsel at your Lordship's Bar? Look at the facts. The fact is, that the appellant was in England nine years, without his making any such claim,—and that in 1806 he expressly said, I have no legal claim upon my uncle. If he had no legal claim upon his uncle, the expression imports that his uncle was under no legal obligation to permit any valuation to be made of those subjects. Therefore it does seem to me, that, upon the effect of the evidence taken altogether, without entering into any very nice questions, these interlocutors of the Court of Session cannot be supported. My Lords, I can easily conceive that this is a case in which this young gentleman, having engaged his heart to this young lady, and feeling it a matter of honour to marry her, may expect some exercise of feeling on his behalf. Persons in judicial situations—perhaps the older we are, the more we think about that—may feel very strongly in favour of the demand of this young man. But that will not do; because, in Courts of Justice we have no right to enforce by rules of law such considerations. Upon the whole, I think it my duty humbly to advise your Lordships to reverse this judgment. Counsel: Appellant's Authorities. —(6.)—2. St. 1. 25; 2. Ersk. 1. 25; Miln, July 19. 1715, (1759); Leslie, Feb. 9. 1765, (1761); Smith, Feb. 6. 1810, (F. C.); Ramsay, Jan. 10. 1673,(2925); Nesbit, July 10.1707,(1769); Elliot, Jan.21.1767,(550.) Solicitors: Leake,— Spottiswoode and Robertson,—Solicitors. ( Ap. Ca. No. 3.) 1823