It occurred to those who had in Scotland the duty of attending to the interests of Mr. and Mrs. Lashley, to contend, first, with respect to those thirty-nine shares, that they would be entitled to legitim upon them, because, in the first place, this testamentary disposition could not take effect upon them; and, in the next place, because the obligation itself was never cancelled nor meant to be cancelled; that there was, as they asserted, a sacred trust between the son and the father in respect to the thirty-nine shares, and a sacred trust also as to the father in a subsequent act as to the eighty-one shares. Mr. Hog was himself called upon, according to the forms of the law of Scotland, to give an account of what he conceived his interest to be in the shares of stock, and particularly in those shares of stock, with respect to which he had given any acknowledgment whatever to his father, and he represented in his answer to the interrogatory addressed to him for that purpose, "that about twenty years ago or upwards," (and as far as I recollect the time of his examination it would bring that back to the year 1774) — that about twenty years ago or upwards, but the precise year he does not remember, the deponent's father purchased some shares in the stock of the Bank of Scotland, which were transferred to the deponent; and some time afterwards he gave a letter to his father, the exact words of which he does not recollect, nor the number of shares to which it related, but that in general it imported that these shares were to be considered as his father's, and an obligation on the deponent to transfer these shares to him or his order when required so to do: that, some time after this, at an annual election of directors of the said bank, the deponent, who was at that election elected a director, stated to his father, that in consequence of his having granted him the above mentioned letter he could not take the oath as a proprietor or director, as not holding the said shares free and independent; upon which his father told him he need not give himself any concern on that account, as he intended the deponent should have a complete right to the said shares, to serve as a fund for providing for his younger children, and added, that he would cancel the letter or declaration which the deponent had granted, and therefore that he was at perfect liberty to take the oath required: that, upon this the deponent was satisfied, took the oaths of trust, and has continued to be elected annually, and to act as a director in his father's presence during his life and ever since; and the deponent is certain that at no

subsequent period did he ever grant any letter or declaration to his father relative to the above shares, or to any others which were afterwards acquired for him by his father; and that he never saw the above-mentioned letter after he granted it to his father, and does not know or suspect where it is.

This declaration, your Lordships observe, refers to a period twenty years or upwards preceding the time at which the deposition was made; and it is but fair to observe, that upon a transaction which had so much of ambiguity about it, both as respected the father and the son, the son, in his deposition, might, without blame, be somewhat inaccurate; and the father might, without being exposed, I think, to the imputation of being an extraordinarily inaccurate man, be also in some degree inaccurate.

It has been stated, I think, at your Lordships' bar, that it requires ten shares of stock to be a director of the Bank of Scotland; and in order, therefore, to try the effect of this deposition, it becomes necessary to look very attentively to the number of shares which Mr. Hog had from time to time, throughout the period in which it appears that he was in the habit of making purchases of shares, either in his own name or in his son's name; and unless I mistake the effect of the evidence in this case, it will be extremely difficult to say that at any period of the twenty years or upwards, to which this deposition can be supposed to refer, it can be a very accurate account of the transaction, that it was the intent of the transaction, in which the letter was given, to qualify the son to be a director of the Bank of Scotland, and conscientiously to take the oath to enable him to act as such director: if he had less shares than ten, that could not be the object; if he had a great many more shares than ten, that could not be the sole object. Yet still that might be one object, among others; and it might be the intention of the father at once to qualify him for being a director of the Bank of Scotland, and also to give him a capacity of making that provision for his younger children, which this deposition asserts was the fair intention which his father's mind had conceived the means of effecting at one and the same time.

It may be misapprehension, but it will be worth while to examine the evidence upon that subject, whether it could be possible that the son can speak accurately. I do not mean to lay great stress upon the subject; if it be an inaccuracy in point of time, it is likely enough to be so without making any

imputation upon the moral honesty of this gentleman. But, unless I misapprehend the fact, it will be found extremely doubtful whether any letters he could give, at that period, could have reference to such a number of shares, as could enable this gentleman to act as a director at that time.

If this were a question merely between the father and the son; and if the purpose of the father was to give such a number of shares to the son as would enable the son to act as a director, whether taking any oath or not; but much more, if it were to enable the son to take this oath and act as a director, where the father must, if he had that intent alone, be holding out his son to those who had interests to be well and duly attended to, and managed by a person properly qualified, in respect of property, to be placed in that situation in which he cannot be placed, according to the law, unless he has so many shares as to render himself properly qualified; and upon principles much more sacred and much more important, if he placed in his son's name a property, informing that son that he might pledge himself to God and man by his oath as the person really entitled to that property, in a question between the father and the son, to be determined immediately after that transaction took place, no Court of Justice would have suffered the father to have holden a language, which imported that he had not effectively done, what he promised upon the outside of the thing to do. This is quite familiar in this country. Your Lordships know there are a great many situations with reference to which qualifications are necessary. One is familiar with this, that a person cannot have a seat in Parliament in this country unless he has a clear freehold estate of three hundred pounds a year at least, at the time he takes his seat. That estate once given, it is supposed can be taken back, but it cannot be taken back as against the creditors of the man to whom it has been given; and whatever may be the question as between the party who gives and the party who receives, public considerations having determined that he shall receive that estate before he can act in the character of a Member of Parliament, I conceive that there would be no manner of doubt that every judgment which the receiver of that property had recorded against him in Westminster Hall would follow that property if it went back again, even by conveyance, into the hands of the man who granted it. For where the law requires that a man shall have a property, and where a third person intervenes to give

him the qualification in order that the law may be satisfied, the law will not permit either the one or the other to disappoint the purposes for which that law was made. I take it, therefore, to be quite clear in this case, that it is impossible to touch these thirty-nine shares, if they should be found upon examination to be the subject of transfer made with this intent, if the question is to be considered as a question merely between the father and the son.

If, therefore, these thirty-nine shares had been given, whether twenty years ago or ten years ago, or at any other period, and nothing further had occurred in the case than that there was that gift; if, for instance, the dividends and profits of the thirty-nine shares had remained dead in the bank, and had been received by nobody; if there were no evidence to show that there was a re-transfer contracted for, or a trust bonâ fide afterwards had, it would be perfectly impossible to touch this property, unless you are to say, that whatever the rule may be between the man who makes the conveyance and the man who receives the benefit of the conveyance, the rule shall not operate to the prejudice of third persons; and it has been argued at your Lordships' bar, and strongly argued at your Lordships' bar, that although you would not permit the father to say, as against the son, that that gift which he had made in order to qualify him to act as a director, swearing to his qualification, should be looked at as any thing short of a gift perfectly absolute and perfectly consummate in its nature; yet, if the purpose of that gift was really to defraud the other children of the marriage, you would, in such a case as that, say that at their instance you would examine the real nature of the transaction; and, examining the real nature of the transaction, you would, as with respect to third persons, set it aside.

Now it appears to me, without saying more upon it, for it is not necessary, in my view of the case, to say more upon it, that it would be a difficult thing to maintain that proposition. In the case of a creditor in this country, unless he has carried forth his diligence to such an extent that he has got a lien upon a man's property, if he upon whose property the lien is conveys it to another to make a qualification, he fails in his purpose, inasmuch as it is not a qualification free from incumbrance; but, supposing the subject unfettered by any incumbrance, and to be conveyed in truth from A. to B., the creditors of A., who had no lien upon the property whilst it

was in the hands of A., had no reason to complain; it was their own fault that they had not acquired a lien. So, when it comes into the hands of B., the rights of B.'s creditors immediately attach upon it, and it cannot be the property both of A. and B. for the purpose of permitting the claims of the creditors of both one and the other to attach upon it; and it would be found extremely difficult to say, that if this matter of the thirty-nine shares had been to have been decided immediately after the transaction took place, it would have been competent for the younger children to have raised that contest which the father himself could not possibly, upon the ground of the policy of the law, have been permitted to raise in a question directly between himself and his son, to whom he had made the transfer.

But it is extremely possible that the thing may acquire a very different complexion by the subsequent transactions between the parties with respect to the property; and it is alleged in this case that, notwithstanding these thirty-nine shares, or notwithstanding any other shares, more or less in number, were originally placed in the name of the son, or were by transfer placed in the name of the son, yet that, in point of fact, all the transactions of the father in his lifetime with reference to all the shares, whether they stood in the name of the father or stood in the name of the son, were transactions which would have taken place precisely in the same manner as they did take place, if every one of those shares, to the whole amount of a hundred and forty-four, had, from the beginning of the time that any of those shares were purchased to the end of it, stood in the name of the father and the father only.

It is said that the expence of these transfers was paid by the father; if further subscriptions were called for, the sums paid in discharge of the further subscriptions were paid by the father, and the dividends de facto accounted for in the manner which I shall have occasion to take notice of. The dividends upon the whole were in fact carried to the account of the father, being received by the father's bankers, as they necessarily perhaps must be received. Some of your Lordships will know more correctly whether I am right or not, than I can say I know myself to be upon this point; but I presume where shares stand in the name of any individual they cannot be received but by the authority of that individual. But whether the authority was or not given by both father and son, the pro