17th May 1836.

HOUSE OF LORDS.-(W. H.D.)

No. 1. JAMES HAMILTON, Esq. of Kames, Appellant, v. MISS MARGARET LITTLEJOIN, Respondent. Trust Voluntary-Accession-Held (reversing the judgment of the Court of Session), that a voluntary trust of an old date, acceded to by creditors, which gave them a power to elect a new trustee, in the event of death or resignation, but in the execution of which the creditors had not proceeded, by election of a new trustee, for nine years after the death of the last trustee, was still a subsisting trust, and effectual to bar an action of maills and duties against the truster by one in right of a creditor who had acceded to the trust.

Hamilton bought the estate of Kames from Lord Bannatyne's trust-estate, and granted, in 1810, an heritable security over it for £10,000, half of the price. Part of the above sum, viz. £667. 10s., was assigned in 1815 by the seller to Linning, one of Lord Bannatyne's trustees, who was infeft, and afterwards transferred his right in 1818 to the respondent's brother, who was also infeft, and to whom the respondent succeeded, in December 1825, as heir-portioner with another. She was infeft on a precept of clare constat. In 1815, the appellant's affairs became embarrassed. He thereafter executed a private trust, 16th October 1815, in favour of Campbell, who was infeft-its chief objects being the payment of a preferable annuity of £600 per annum, payable quarterly to the truster during his life (although there was a power of sale), and then the payment of the creditors out of the rents and produce. The trust provided, inter alia,

"That although the trustee shall resign, or shall die, yet the trust shall noways cease or become void, but the trust-right and infeftment to be taken in virtue thereof, and all that shall follow thereon, shall stand and subsist as a security to the whole just and lawful creditors preceding this date, as well those that may herein be omitted, as those that are herein stated."

And provision was made for the appointment of a new trustee by the creditors, in the event of death or resignation. A deed of accession was signed by the great majority of the creditors, and by Linning among the number, for himself, and as trustee for Lord Bannatyne. By this deed the creditors ratified, approved, and confirmed the trust, and

" bind and oblige us, and those who may hereafter have right to our respective debts, to conform thereto, and to the proceedings to be had in pursuance thereof, in every respect, as we are severally concerned. And further, we do hereby agree, covenant, and oblige ourselves, and those for whom we act respectively, SCOTTISH JURIST.

that we or our constituents shall not raise, commence, or follow forth any action, suit, diligence, or execution against the person or estate of the said James Hamilton."

Campbell acted as trustee for about two years, when he resigned, and Wright was elected trustee by the creditors, and infeft. He continued in the management till his death in 1824, when the factor, M‘Rae, was authorised by the creditors to continue the uplifting of the rents, &c. But Miss Littlejohn commenced to intromit with certain of the rents and proceeds of the estate. No meeting of the creditors took place after 1824-5, for about seven years. And at length Miss Littlejohn brought an action of maills and duties against the appellant, who pleaded-1. The trust-deed and deed of accession form a covenant not only between the appellant and his whole creditors, but between the creditors themselves, which cannot be departed from or defeated, without the con sent of all parties interested. 2. The trust executed by the appellant, Mr Hamilton, has not lapsed. By the express terms thereof it is still an existing trust, and its whole provisions are still in force; and nothing has hindered the affairs from being regularly conducted and wound up under it, except the unwillingness of the respondent, and one or two other acceding creditors. And there is nothing to hinder a new trustee from being appointed, on a meeting being called for the purpose, in terms of the trust-deed. 3. The respondent and her authors having approbated the trustdeed, cannot now reprobate the same. She is bound by all the conditions of the trust, in consequence of her having approbated it; and of Mr Linning, in whose right she stands, having been a direct party thereto, and having expressly acceded to it, and subscribed the deed of accession. And she is expressly

barred from taking any steps inconsistent with the trust, or destructive of it. 4. It being expressly declared in the deed of accession that the subscribers agree, covenant, and oblige themselves, and those for whom they act respectively, that they or their constituents shall not raise, commence, or follow forth any action, suit, diligence, or execution against the person or estate of the said James Hamilton, the respondent is barred, by the subscription of the said deed of accession by her author, Mr Linning, and by the said agreement and obligation contained therein, from bringing the present action of maills and duties. 5. The respondent is bound to account, in extinction of her debt, for the whole intromissions had by her, or her VOL. IX.-No. I.