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There was nothing in Marshall's report to lead them to think so. Sinclair's evidence shewed that this agent had applied the funds of the Bank to his own purposes » and recalled the Sheriff's interlocutor, quoad Jeffrey, — decerning against him for the sum of L25, ISs. to them in 1582, enabling them to found the College, with the power of selecting, instituting, and removing such peasons as they may think fit to teach the different branches of philosophy and science. by Pat Rose, residing in Edin- burgh, and discharging him of debts contracted psior to 2ad Nov. There was nothing new here, except tlie plea of minority. Fonyth, Cockbuni and Rutherfun L — Pursuer's Agents, Greig h Morton, W. The liquidation of previous claims could not have been an element of die partner- i Bliip agreement in 1813. Lard Gi Ht M said, there were two questions here — I. If he had brought an action against the defender then, he would have been entitled to a ' great deal. The Lord Ordinary, on 11th December 1828, pronounced the following interlocutor : — ** The Lord Ordinary having heard* the Counsel for the different parties in this cause, in respect, H ap- pears to the iiord Ordinary, that the sumroons, as against James Scott, Robert Roy and Thomas Mac- kenzie, executors under the will of the deceased George Mackenzie, Esq. Lord Mansfield, who was infeft on 26th November 1825. Objections and answers having been given in, the Lord Ordinary, 21st February 1828, remitted the whole to Mr Guthrie Wright to examine and report. Edikbuboh : Print id, Pablished, and Sold by Michail Aif Dnsc i4iw-Printer, I .. The word process was vaguely used by institu- tional writers, but he considered it to possess a wider signification than the term action. C^ses were ordered by the Lord Ordinary^ with which ha .aifterwiurda made avisandum to tlie Cour L Lord Balgriy, with whom the other Judges concurr^ ip opinion, could not conceive how a party taking a bill after it was dye, and ha4 Deed retireo, should not be subiect to ^11 excep- tions competent against his author. The Lord Justice-Clerk having concurred, an interlocutor, adhering to that of the Lord Ordi- nary, was pronounced.

7d., being the restricted sum pursued for, with interest from 1st July 1822, and finding Jeffrey liable in expenses, both in this and in the Inferior Court, — ^reserving con- sideration of the question as to the other defen- der. This charter confirms the previous grant by Queen Mary, in 1565, of certain revenues to the pursuers, for the purpose of founding a college, of which they were to be the founders and patrons ; and it bestows upon tlie pursuers, in a more explicit and direct man- ner, the powers and duties which Queen Mary's grant bad merely implied. Henry George Watson, accountant in Edin- burgh, trustee on estates of R. Dicksons, archi- tects and builders there and in Portobello, as a Ca and as individuals. He saw no reason to in- duce him to alter his opinion, that the leases in question had been cut off both by the positive and negative prescription. It has been so decided in regard to a lease of teinds» The (question then, is — Was there a title of pre- scrip Uon in William Earl of Panmure ? It was not consistent with an .ordinary view of these transactions to /a Mppo^ that Mr Campbeirs share was to be .one-half. It is impossible to maintain the pro- position, that when he was principal clerk and manager of the bnsinessi he was to get nothing except for his writings. IVhenlie wins as- sumed as a partner (of which there is clear evi- ^dence^) were his former claims discharged by that ? his father, the defenders, is Jrregular- ly and incorrectly laid, in so fsir as regards the con- clusions against them ; therefore, dismisses the action quoad the said defenders, and decerns ; iiodi them en- titled to their expenses, appoints an account thereof to be given in, and remits to the Auditor of Court to tax the same, when lodged, and to report, — reserving to the pursuer, such action as may be competent to him against the proper representatives of the deceased Captain Kenneth Mackenzie, the l? The present action of reduction-improbation, declarator of non-entry, &c« was brought by Lord Mansfield for reducing the minute of sale and disposition by the original feuars in favour of Thomas Longridge and others, as being in direct violation of the terms of the feu-contract, and for having it found and declared, that the pursuer has the onlv good and undoubted right and title to the lands ; or at least, that the lands have been in non-entry as to the respective shares belonging to J. Under this remit, the accountant brought out a balance of L99, KK 5. An action was beg^, and (according to old phra- seology) intented by executing the summons; oiiid his Lordship considered, that from the time the stimmons was executed, it was a depending action, susceptible of transference. It might b« indorsed, no doubt, but whenever it was taken out of the circle, and it appeared u nor if Fraser Houston and Co^ had proceeded to ac- cept Walter Logan's drafts, and referred for payment to Fraser, Perring, Godfrey, Shaw, Barber and Co«;— this was merely equivalent to an order on their own bankers ; but by the conception of the obligation, the guarantees rely on the acceptances of Fraser and Co« not of any bankers they might choose to emp lor.— There was a great and essential change produced by the new measure, on the security in contemplation under the obligation of guarantee, and therefore inti- roadon and approbation seems to me to be requved. Mbssi Is Gr B90N- Homdogalion,'-' Circumstances uru Ur which!

It was not the common bond oi a party, a new man, to a Bank, de fuiuro ; it is a Dond applicable also to past transactions. An inhibition wa3 not a regular way of compell- ing payment : it was merely a security ; and if sufficient for payment of his debt, the creditor ^lad no right to demand more. When he incautiously, however, accepted of an assignation, bearing the limited warrandice from fact and deed, the Lord Ordinary is of opinion, that, in terms of the doctrine laid down by Mr Brskiiie, fi. Suppose this had been a forged bill, would the messenger have been required to exe- cute diligence upon it, or could his cautioner have been liable for his neglecting to do so ? On the^ cause coming before the First Divi- sion, their Lordships desired the opinion of the Judges and Lords Ordinary of the Second Di- vision, which was returued in the following terms : — " The rule of law is, that real rigtit» are o Owp Teted Ky delivery. »rne or sjinboiical delivery ; and in suhjects which do not admit of ssstne, by giving natural or civil possession. Elliot and Foster, we think that it is not sppli^ cable to the present. At pre- sent it seemi enough to state, that his Lord- ahip was of opinion, that there were no grounds upon which the pleas rested, either on the positive or on the negative prescription, by wnich they could be supported* Lord Medwun stated, that he had the misfor- tune te differ from both of the opinions which bad been delivered. The Question was-* Wnat was the title at the death ot Harry Maule ? As to Panraure, it stood in virtue of an entailed as- signation. At his deatli, he possessed upon tlie fee-simple rights. At a* former stage of the case (May 1828,) when it was still undecided whether tii the late Archibald Campbell, W. There was no specific agreement as to salary ; hut he receivea payment of his wrlting B from time to time. Indeed, the Lord Ordinary can see no reason why the decrees themselves should be set aside. 291^M j^artly oir the ground, tlmt no personal debt exi Rtea, at least, that its amount was disputed ; and partly, because prescription had run upon it. In the agreement it was stip^ated, 1^/, That the coadh was to be supplied with horses by the pursuer^ and Mr Granti for the stage betwixt Perth and . Lard jyfancr Hff^lmd that the of |he war- rant «jiould have expresdy borne, that the ace- ensed was to be bcooght smmediateij/ before tibe Justices, without erasion or delay. The statute allowed a proof of co/t- fidence by the oath of the conjnnct person.

His Lordsliip thought, that there was evidence suf- ficient to shew, that the Bank were in possession of information connected with this agency, which they did not communicate to the cautioners, and which were truly their reasons for demanding ad- ditional security. The Lord President considered the inhibition a mere step of diligence to keep the lands open for adjudication. On the contrary, the messenger might have been liable in damages if he had proceeded in such a case. - Tacks, ii T one respect, are personal, and, in another, real rigbta. We think that Messrs Inglis ought to have intimated the assignment in their ftivour, not only to the landlord, or to the person from whom their ced Mit obtained the lease, but also to every sub-tenanr. Wolfe Murray." The Court, in conformity with the above opi- nion, found that the tnist-ces* deciision (rejecting- Inf^lis and Company's cluiin of preference,) was rig;)it ; fher(^forc dismissed the petition and com^ plaint, and found expenses due; Petitioners* Authori:ies,— (! These entails did not convey the uwnec U to himself, but to a special set ot sub* sti^tes. It was not until after his death that possession came to be held under the entails. Then the entallea rights came into operation, which are good until redu* ced. About the year 1805, awl from that period to 1813, Mr iampbell's attention f W9A directed to calls and correspondence with Mr Thomson's clients, which diminished the amount of earnings from his writings to less than L50 per annum. Tlie defender may have been a sharp creditor, but he was clearly entitled to take decree for the sums he was compeired to pnv for the pnrsuer. niight possibly have secured himself otherwise, by ob- taining an assignation pro tanto from the heritable creditor, but such assignation would have been more expensive than the decrees. The following are the interlocutors of the Lord Ordinary. Title— Reduciibn.~ln' 1757, Walter Cum- itiing, merchant, Glasgow, w^as proprietor of certain house-property there. On his death the subjects descend- ed to his three daughters, Janet, Robina, and Jane, who also possessed" them as heirs-portion^ ers, without making up a* title. Mouliqeam, and for the oth^r stages by the other ' proprietors ; and 2df That the subscribers were *es and Company, proceeded to follow oat the diligence, and to poind the effects of the Sursners, — a sale of which, by' warrant of the iherifp of Perth, took place (29tb September 1825^ ; and the sale having been reported (20th October), the Sheriff found, that after imputing the proceeds of that sale, a balance remained due to Sir William Forbes and Company of L8, 4. He approved of the report, an4 ordained the proceeds to be paid over to the porsner. The commissioners of the late Archibald M'Niell of Co Uonsay, 15th September 18D3» granted an heritable bond over that estate to Joseph Littledale, brother of the deifender, for £2000, with corresponding interest from Whit- sunday 1803, and penalty as usual; Joseph Littledale was infeft on this bond ; seisin dated 19th September and 3d October, and registered 29th October 1803. 9 1 Acts of fisdeoint, December Ir, 17fil, and July », X7b S; Ker, Itk July WC; M'Oowal, 3a February 1741, Mor. He a Jao thought it a substantial error, to have diar^ranlr ed the injunction by the Justice granting the warrant, to htlng tli» delinque Bat " b^qre me.'- For here thene was either a ^eadly vioe in the limited form of the original warrant, or a fatal error in the jnanner of its execution. But Erskine says that this practice has roen departed from, and that a creditor is obliged to prove his debt by collateral evidence; If writing could not have been received without other evidence, neither was the oath admissible by itsel L His Lordship held, that the oath of the bankrupt might be taken, if there was no fraud Lord Glenlee explafned the old practice ; and said, that he had been a good deal moved by what was said in the case df M'Kay, lately de* cidcd in the House of Lords, because it shewed that there were circumstances in which an oath might be excluded. There is no decision under such circnni« stances where it was held competent to prove a debt lay the bankrupt's oath; The ciftrly cami do not apply.

You can search through the full text of this book on the web at http : //books . com/| Digitized by Google Cw UK 3co K loo SQl^ ^i L Digitized by Gooq W Digitized by Google Digitized by Google Digitized by Google Digitized by Google THE SCOTTISH JURIST; COKTAINIKa REPORTS OF CASES PEd DSD IN THE HOUSE OF LORDS, COURTS OF SESSION, TEINDS, AND EXCHEQUER, AND TBB JURY AND JUSTICIARY COURTS, FROM ISth January to the 12th May 1829. His Lordship saw no ground to doubt whether the bond applies to past transac- tions of the agent, so as to render the cautioners liable for these. Lord Gillies said, the Court were in the daily practice of recalling and restricting inhibitions. jected in dannagea for neglect, bad it appeared that the do« cument of debt was vitiated or the diligence inept ; and when the defenders compelled the ptirsuer, as his cau- tioner, to pay up the full balance of the debt, with the expense of the diligence, they were bound to assign to him the debt and diligence, with absolute warrandice. 3, eec L ^, the implied obligation must be superseded by the expressed one. He was entitled to say to the defen- ders — *' I pay you the money upon condition that you assign me the debt.^' The debt must exist — must be in rerum natura — and the as- signer is, in that case, bound to warrant its ex- istence. on the plan in process, (named Whiteraes Cross Acre Hole,) cannot be considered as run- rig land^, or subject to the proposed division ; therefore sustained the reasons of advocation, and remitted to the Sheriff to proceed of new on the principle of the above finding. That they (Ing:lis and Company), by virtue of their intimated assig- nation, had o'btained a complete legal right to the 'subjects for the sums for wliich the security was granted, and were therefore preferable over the said subjects for these sums, to the trustee in right of the general creditors. Supposing their (Inglis and Compiany) right incomplete under the original intimation (to M*Farlane), it wjis eftectually completed by tne intimation of 23d September 1819, before any effectual right was vested in tlie trustee. That the^ trus- tee's right stood upon the naked decree of adju- dication in his favour, unclothed witli possession, wliifh could not compete with their (Inglis and Company) right under their prior intimated assignation. That their mtiraation (23d September 1819) to the tenants, was t^quivalent to possession, and formed a mid^mpediineut. That intima- tion of an assignation made after sequestration, does not constitute a mid-impediment, exclud- ing the retrospective vesting in the trustee by virtue of the act 1815, § 30. Irving." " We concur in the foregoing opinion, fiut under tho following explanation: We conceive it to be unneressary to express our sentiments upon the case of Yeoman v. In consequence of this statement, it would be improper to give even an abstract of the opinion delivered by his Lordship. Maule produced these fee-simple tides as a title of possession ; but he did not found upon the entails. 121,) had an-ested all complainer'g rente" m the hands of his tenants and trustees. The decrees taken for the interests which the defender paid as cautioner, and which compose the greater number of the writs called for to be reduced, are, as has latterly been admitted by the pursuer, only craved to be opened up to the effect of taxing the expenses. Hetention^^'Party in a joint adventure held not entitled to retain more than his own share of the proceeds on ae« count of alleged dcmage from. The pursuer, defender, and others, entered into an agreement in November 1825, to run a new coach between Inverness and Eklinbiurgh, in opposition to the old coach called the Caled O' niarty already running on that road. If ao offer of counter proof had cea Uv been made, H vas the duty of the Justuoes to Jiave at onoe ad? But his Lon Uiip did ikot think it xteoeasary to go into that, look* ing, as he did, to the plain intfiiition this Act of Parliament, that tne proeeadhigs ahonld he aummary, and xo Uhma a ijacerd, which, kowever, bad been erroneously adopted by the Jnstioos* . Wi^out cottateral proof, a bond of trust could not be proved by the oath alone. The letter of 20th December 1803 did not disclose the whole motives of the Bank for demanding additional security : and there was nothing stated to shew that the Bank were dissatisfied with the conduct of I here agent. Tlie power of the Court w^ undoubted to recal inhibition, either xn satis- factory security being found for the debt, or when the creditor otherwise possessed ample se- curity, as was found in the case of Bremner, 13th November 1821. Lord Craigie thought the warrandice here one from omissions as well as commissions. In a question between the landlord and the te- nant or his assignees, they are personal rights ; therefore, in a competition between two bonajide and onerous assig- nees, the landloxti t^ bound to prefer him who first inti- nates hu as Mgnution, (which is the way of completing a personal right), and to put him in poases«ion accordingly. It is said, but not ascertaified, thut there was one sob-tenant,' Rowan, at the time Missm Inel Hi obtaitied their right; but afterwards the whole subjects were sub-tenanted, and for two yeara possessed by persons to xvhom Mr Moriton had let them, and from whom be uplifted the rents, yet no intimation was made to any of them." ** Ihtimntion after the seqiiestrcttion was clearly too late, and ineffectual, in terms of the stutute 57 Geo. a: 137; This attempt to intimate to the aob-tenantr •hews the sense of Messrs Inglis of their own negligence in having omitted to make intimation of their assignment during two preceding years, aud that the measure- was ne- cessary to complete their rghr." '* On the whole, we think that the assignment to the lease was not effectual to give a preference to Messrv Inglis and Company in competition with Mr Morisou'a othir creditors.'* (Signed) ** D. Earl William was bound to enter in virtue of the entail, and to have disregarded the fee* simple rights. In 1811, Mr Campbell was appointed factor for Mrs Skene of Hall- yards, one of the defenders clicsnts, for the 4lt- ties of which office he received 50 guineas per annum. The parties differ as to the fact — y^ hether the expenses of the decrees were taxed or not T But as they are evidently not random sums, and are apparently moderate, averaging, exclu- sive of the expense of extract, less than 20s, each, there seems no sufficient cause for opening up the decrees to any extent. With regard to the berita Ue- debt, his Loroship) 24th January 1829, " Repels the objections to the foregoing state;- Finds, in terms thereof, that the sum, as accumula- ted up to the 2jth day of December 16^ years, amounted to the sum of L3696, 2, 5. Janet Cum- ming married, but died without leaving any de- scendants ; Robina Cumming married John Barbour, weaver in Glasgow, and died, leaving' two children, John and Janet, (the former of whom went abroad,) and by her contract of mar- riage with the said John Barbour; Margaret Barbour and Janet Barbour, sisters of her said* husband, fell to succeed, failing children of the marriage. Of these proceedings, the present ac- tion of reduction was brought by Walker and Johnston, containing also a condnsion for repeti- tion and damages. In the year 1804, the pre- sent pursuer purchased the estate of Collonsay from Colonel Archibald M'Niell, when it waa stipulated, that the pursuer should retain s sufficient part of the price in his hands to pay the above heritable debt. There was also a serious error in taking the eyiitence i down ; for a right of appeal was not Intended ; by this statute to be ^ven upon the tneriu of | any procedure under it. MMCt'i Vish, country agent For the Re- spotiflent.— -Patrick Robertson and Chas. His Lordship thought that in this case the oath ought not te be received, as it might affect the interest of the creditors. — It is ad- niitted that there is no chance of the creditors being naid ; therefore this i» a claim to take away the fund from which the creditc M^ are te be paid.-« The Cburt would recollect, that the respondent was her uncle*s house-keeper, a per- son whom the Act of Parliament oraers to be examined in relation to the affaifs of tlie bank* Digitized by Google No. The onl^ case was that of Hal- kerston, relative to a judicial factor. The j^eneral opinion is, that the mere circfinistance of bank- ruptcy renders an oath hiept in all cases; In cases where the interest of creditors only is con- cerned there is no decision allowing the refer- ence. The evidence in the cuse was partly circum- stantial and partly direct. **• An Index to Uie Cooten U will be given it Uie end of the EDINBURGH : Printed and Pub Uthcd by SC Amosssox. The Court concurred, and accordingly re- stricted the inhibition in terms of the prayer of the petition. The messenger had evidently no duty to dis- charge, and consequently his cautioner could not be liable. But in a question with the singular successors of the landlord and the tenant' or his s^signee, a tack is a real right by force of the statute r44'9, and therefore it is in- complete unless possession, natural or civil, has been at- tained. In feudal rights, possession upon an mfeflment affords a prescriptive title. In 1&13, he became a partner of the defender, and as such, conducted the whole bu- siness when the defender was absent. Mow i tinnphffj Osthsai, W.a Agaot,— Conntai for Ratpondaati^ Aadiav Ruthaifard; Gibto R-Ciaiga Md , Warcflaar, W.a Agents— Mr Tbomaoo, Clerk. Gavnir^ Advocation^ Oomp Heney ff«— Williani Maa- Kechnie, writer in Glas^w, reeeiv«d varioas snms of money from Darid Potter, bookseller there, to defray the expense of an acdon of d^ niages at his instance, in which he nldmately obtained a verdict in his fivonr, widi £44) Ster- ling of damages, besides expenses of process. '* In regard to the business accounts, the fii st was settled by the parties so far back as y S2\, and has been long paid. Sterling ; and that, in terms of the interlocutor of the Court, of date 26th May 1886^ the interest accruing doe sulv sequent to said 25th^ December i S25, falls to be ac- cumulated at the rate of 5 per cent.^ per annum, at the end of every two years thereafter, until the. Jane Cumming married John Combs, shoema Jcer in Glasgow, and left a son and heir» named Walter.— In 1792, this Walter Combs, usurping the right to the whole subjects, grant- ed a disposition, conveying one third of them to Samuel George, saddle-tree maker, Glasgow ; and thereafter, ih 1797, he granted another dis- position, conveying the other two-thirds in fa- vour of Thomas Smith, saddler in Glasgow.— Tliese conveyances bore te be absolute ; but the parties granted baclc-bomls, declaring them to have been in trust-. The ground upon which the pursuers rested was, that after a bill had been paid to the drawer, in whose name diligence bad proceeded, it was incompetent for the party who nad paid it to follow out that diligence in name of the drawer ; and that the proceedines having been carried on in the name of Sir Wu'* liam Forbes and Company, they were liable for any irregularities or improper st^ps that migi^t have been adopted ; ana, in particular, that they were liable in consequence of the sale of the poinded effects not having been reported, in terms of the statute, within eight days, for a U the consequences and injury therefrom arising. — The late John Laing, by disposition and deed of settlement, daited 19th April 1810, fconveyed the whole of his property, heritable and moveable, tp bis eldest son, under certain burdens ; and, inter alia, un- der the burden of a legacy to the pursuer, of ,"€100; or else, in the pursuers option, to dis- pone and make over to him a hidf tenement of houses in Hawick, upon the pursuer making payment to him of £50 Sterling. John Laing, the testator, died on 8th December 1816, leaving a widow and eight children. In the year 1808, William Broderick, stating himself to be a partner of Joseph Littledale, (who waa then dead,^ and that he was a creditor of tl^e company of Littledale and Broderick, and of J6seph Littledale, took measures for obtain- ing right to the above bond* On 7th Decem-* ber 1808, he charged Isaac Littledale, the de- fender, as brother of Joseph, to enter heir to hiin ; he then raised a process of constitution, and got decree in absence for the sum of £2273, xe did not object to his name. This was accordingly done, and the petitioii and complaint taken entirely out o^ Court. If this conviction was, therefore, to be sustained, there might very soon be before their Lordships anfi appeal in whidi they ftad evidence, and would be asked to con- sider it ; and another appeal in wliich there ap- peared no evidence, and theijr Ludships could not be required to go into any. If it is Iwld do¥ni as the rule, that debts m|iy be proved by the bankrupts oath, which is to be conclusive, the whole funds may be carried off by the bankrupt's friends. But that is not al- leged ; and the evidence of Sir J. In terms of the lafe bankrupt statute, the as^iignn Cton must held to be of the date of the inti- mation ; and an assignation by the bankrupt^ after he i» aequpstrated, is clearly incompetent.'* *' We are of opinion, therefore, that the deliverance of the trustee, rejecting the claim of Inglia and Company, is correct.' (S%ned) •* D. Little stress can be laid on the general service; such a step being neither usual nor useful to take up a lease. The other Judges concurred ; and the Court, accordingly altered the interlocutor complained of, sustaining the dilatory defences, and found the respondents liable in expenses. His Lord- ship thought it clear there was a partnership ; and that, upon the principles oi the civil law, Scots law, and common sense, that share must be held to have been cme-half. Mm Cbaio or Tnb MMHit Jbr Ssqitss- TRATION AND i MVBEDXCr. state of aocounts previoudv rendered, diewiiig a bidance against him ef d&59, 12. He pto- •eeeded to complain, however, that tn 1819, ^ike heir of the truster had cailled him and his co- trustees hi a mnltiplepoindifig, for the puijpose of having his accounts opened up; and that, in eonsaquenoe of remits to the Aiulttor of Court, and to a supawte ^aeeonn Vant, th^y had hoen ite- exandned, wmt »- balance Mated agaiiast him of £394, 10. S., whidi former sum he had also been •rdamed to ^xnsign. y ., " Partners under the firm, name, and description of the Devon Company, for the purpose of making and manufact ring of iron, their heirs and assigneesi, and the heirs or assignees of each of them, heiitablv and irredeemably, the farm of Kasi-side of Sauchi*? The Lord Ordinary, 3d I^eb- mary 1829, pronounced this interlocutor : — " The Lord Ordinary having heard parties' procu- rators, and .thereafter co DS'dere|d the process, apd be- ing of opinion that the obje/ction ought to be repel- led, appoints the cayse to be enrolled in the roll of motions, and the respondent, Riohard Griffin, to come prepared to say %vhether he intends to bring such judgment, when pionounced, under re Tiew. On tlie other side it was argued, that the word *' process,"^ had both a popular and a technical meaning. This bill bore to have been gi*anted for value ; but it was alleged that Mr Buchanan had only received L40 for it» And that it had been granted as an accommodation to Mr Napier, by whom it pwas .-i^coui^teitl With the British Linen Company. This was a petition and complaint at the in- stance of Mrs M'Kenzie against the ^fagistrates of Dingwall, for breach of an interdict granted by Lord Corehouse, prohibiting them from fish- ing in the river Conon, above a certain line, as delineated on a plan, from the information af- forded in which his Lordship had formed his judgment. Upon which the pursuercr moved the Court to dispose of the case m terms* of 6. Lord Ordinary, Newton.— ^^c^ Henderson, — Alt, Solicicor-Cvenera U — Thomas Kanken, and W. The defender, on the o Ui^ hand, brought a reduction and declarator against the pursuer, concluding that it shoidd be fonnd and declared, that, as the said Walter Combs had never had a feudal title in his own person, he • could confer no title on another ; and, as the whole personal titles were clearly in the defend- er s favour, and she was in the lawful possession of the subjects, she was the only party in right of the subjects ; and, therefore, the only party en- titled to ma|ce up a feudal ti Ue to the subjects. Sir William Forbes and Company were hound to have granted an assignation. On 15th May 1826, at the place of redemp- tfton qiecified in the bond, the pursuers procu- rator attended with the money ; and, as no per- son appeared to receive it and tender the ne- cessary discliarge, it was consi^ed in the hands of the agent for the Bank of Scotland at Dum- fries ; the pursuer protesting that the lands should be held from thencefordi to be lawfully redeemed, and that the defender would be liable in the expense of a process of declarator of re- demption if k should become necessai*y. In defence, it wa« maintained, that the action was unnecessary, in respect that a discharge by Mrs Lamont as liferenter in her own right, and as fiduciary fiar for behoof of her children, was sufficient. After a great deal of procedure, the Magistrates, 16th February 1827, found, that the respondent was •nly lianle' for rents of the heritaole subjects from Whitsunday 1821 to Whitsimday 1824— 8|]staine4 the counter-claims of thb respondent, including £50, conditioned by the settlement in the event of the pursuer choosing the half tene- ment in preference to the legacy — " And in respect, the counter-claims of the dc* fender (respondent) so sustained, exceed the sums so found due by him to the pursuer, assoilzie the defender from the conclusions of the action ; but, in respect of the particular circumstances of the case, find no expenses due to either party, except the ex- pense of extract, for which find the pursuer liable, and decern accordingly *' The Magistrates thus held, thjjt until the pur- Digitized by Google No. SSft suer declared his option in regard to the heri- table property, the respondent was tp be regard- ^ as a bona fide possessor, and not bound to ac« count for bygone rents. Sinclair proves, that the Bank directors wete in the knowledge of circumstances in 180S, which it was illegal for them to withhold from the cautioners. It was no public adverse act to mark the commene&- ment of the prescriptive right. Tllere was no advance of cash by Mr Campbe^, but he contri- buted what was of equal importance, intelli- gence, knowledge and activity. Sffitcitraiion ^ Children^ and removal fiam FMer* custody, Tlu8 was a petition at Uie instance of Mm Sliomson, spouse of Andrew Thomison, meiv 43liaat in 6ias(^w, in which the comnliuner arerred, that, m consequence of the^aaukery and grossly immoral' conduct tf the said An* drew Thomson, she had been obliged to re- Ihiquish his society, and im take a separate Astinblishment for herself and her children, (four of whom wei^ under fourteen years age,) and to institute an action of divorce against him, the summons in which was pro- •duoed; that the said Andrew Thomson had latdy expressed his determinalion to r^aove the said diildren from 1^ custody of their mo- ■jier, and to carry away the fumitore from Ihe Touse occupied by her. Of this final decree bf consignation, he called upon the de Asndei^s, as his co-trustees, or representing his co-tnlsteitet to free and relieve him,— ^he s^Mumptive daaie of his summons being as follows :— ''And although the pursuer has o(! /' The contract declared, that the feuars and thei foresaids *' Shall not be entitled to use the lands hereby feued, for any other purpose than erecting an iron foundry, and other buildings thereon, necessary for carrying on the works/'-i-" Nor to sell the sarar, nor grant kub-feus thereof, without consent of the said Willi Rm Lord'Cathcart, and hi^ heirs and sifc- ccssors.'* The reddendo of the contract provided, tluit the feuars, ahd their foresaids, should pay to Lord Cathcart, and his foresaids, ' " At the term of Martinmas Ibl Syears^and every tm en t} -fifth year thereafter, the double of the fore- said feu-duty, in lieu and place of the composition for entry of heirs, or the entry of singular succeaaom, in the share or fthares of any of the said parties in the ctiid feu, while it remains with the company as such.** Digitized by Google^ No. SOS — -*' But in can^, Dotwithstanding the declaration above written, ^^inst selling, the said J. Casa- nifiyor, &c, or their heirs, shall, at any time hereaf* ter, sell or dispone the grounds hereby feued, then the singular successors, paving a composition of ;€500 Sterling to the said William Lord Cathcart, and his foresaids, for their entry to the said subjects, in case of a total sale, and so proportionally, for any lesser part or parts.** The original feuars were inkft on this con- tract, in July 1794. " Notcr^The Lord Ordinary thinks that the in- terlocutor of the Inferior Judge was not interim but final, and was intended to be all that the pursuer was to ask' under the action. Baxtul Sequesiration* — The pursuer took a lease for 19 years from the defender of the farm of As- currie, on the estate of Idireis, at the rent of £315. In 1812, he fell, into arrear of rent; and a statement of accounts having been mado up, the pursuer wrote to the defender : — ** Jfundee, 12^ il««r N« 1812.— J ohm Bastes, Esc;^ Sia, The above is a true state of my account with you, and I acknowledge the' Uilance due you by me tu be L509 Sterling, exclusive of interest.*' Process of aeqnestration was raised by thf^ diefender ; and, 22d September 1812, the Sheri^ of Forfar appointed Charles Geekie to superin- tend the cutting down and stocking the coruf on the farm. In the technical sense, it is an action Which is brought before a . When ihis bill fbll due it was regularly retired, but it did not appear from the face of it by whom it had "been paid. The respondents denied that they had committed a breacn of interdict, and maintained that the plan, from which the Lord Ordinary had derived his information, was inaccurte, and did not afford sufficient directions for enabling them to avoid a breach of interdict. •Her, action also concluded for reduction of the pursuer's titles, ;as acquired collusively, without ' yahie. And, akhough not bound to grant it, it was reasonable to a«k from tliem a letter assigning the diligence. Ainalie, the joint acceptor, was not bound to haye paid the whole bill, to liberate Walker and Johnston from their debt. * IVlrs Lamont, after the consignation had been made, presented an application to the First Di- vision of the Court, on 7th July 1826, praying that a curator bonis might |m appointed to her younger children to concur in uplifting the con- tents of this heritable bond. The pursuer brought the decision of the Ma- gistrates before the Court of Session, by the present process of advocation, in which the par- ties lodged reasons and answers, with pleas in law; and the record haying been closed, the Lord Ordinary pronounced the following inter- Ipcutor : — " nth March 1828.— The Lord Ordinary havi Qg' resumed consideration of the debate, and advised the process, Finds, that John Laing, by his deed of set- tlement, conveyed his whole property to the respon* dents, including the tenement of houses in question, under an obligation to pay Ll OO to the advocator ; or, at the advocator's option, to make over to him the half of the property opposite the Paqtwell of Hawick, upon making payment to the respondent of Lo O : Finds, that the deed of agreement in 1817, though not duly executed, and therefore not now binding on the parties, affords sufficient evidence, in addition to the admitted fact of the respondent re- maining in possession, without any payment to the advocator, that the advocator did not insist for fu U ftlment of the provision in his favour, nor declare his option to take the tenement in question : Finds no Evidence that the advocator meant to depart from the agreement subscribed by him in 1817, lill the letter of November 1821 ;.

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