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Full text of "Decisions of the Court of Session, from November 1825 to [20th July 1841] .."

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X. 




J' PA 




C^^'t^ ^ ^actLAitru-, 



INDECISIONS 



OF THE 



COURT OF SESSION, 



FROM 



\Wi November 1831 to \9th July 1832. 



COLLECTED BY 



FRA». SOMERVILLE, J. TAWSE, J. CRAIGIE, and 
AD. URQUHART, Esquires, Advocates. 



• * ;.- : 






BT AFFOINTMBNT OF THE FACULTY OF ADVOCATES. 



EDINBURGH : 
PRINTED FOR ADAM BLACK, NORTH BRIDGE. 



1832. 



295357 



• • • 



Jim« WAiker, PiiDter, 
Old Bank CIc 



JUDGES 



OF THE 



COURT OF SESSION, 



DURING THE PERIOD OF THESE REPORTS. 



FIRST DIVISION. 

Right Honourable Charles Hope, Lord President. 
Robert Craigie, Lord Craigie. 

David Robertson Williamson Ewart, Lord Balgray. 
Adam Gillies, Lord Gillies. 

Lords Ordinary. 

George Cranstoun, Lord Corehouse. 

Lord Medwyn appointed (18 Feb.) to officiate during Lord 
Newton's indisposition. Lord Fullerton appointed 
(23 June) an Ordinary of the First Division, in room of 
Lord Newton, deceased. 



SECOND DIVISION. 

Right Honourable David Boyle, Lord Justice-Clerk. 
Sir William Miller, Bart. Lord Glenlee. 
James Wolfe Murray, Lord Cringletie. 
Alexander Maconochie, Lord Meadowbank 

Lords Ordinary. 

Joshua Henry Mackenzie, Lord Mackenzie. 
John Hay Forbes, Lord Medwyn. 
John Fullerton, Lord Fullerton ; appointed to the First 
Division, S3 June, in room of Lord Newton. 



IV 



Lord Ordinary on the BiUs^ ^c. 
Sir James Well wood Moncreiff, Bart. Lord Moncreiff. 



John Hope, Esq. Dean of Faculty. 
Francis Jeffrey, Esq. Lord Advocate. 
Henry Cockburn, Esq. Solicitor-General. 



OKN 



OUAUTV eONTROl 




INDEX OF NAMES. 



Pwiueri. 


A 

Defenders. 


No.: 


Page. 


A^TOcate, Lord 


Kirkwall, Magistrates of, 


63 


256 


AitchiBon and Co. 


Bumside's Trustees, 


59 


235 


Andenon 


Anderson, 


130 


539 


Aii8tniiher> Mrs 


Anatruther, Sir William, 


38 


149 


An^ibald 


Bridges, 


145 


627 


Attwood and othen 


Kinnear and Sons, 


144 


620 


Defenders, 


Pursuers* 






Agnew, Sir Andrew 


Kincaid, Lennox, 


91 


347 


Allan and Simpson 


Mack, 


65 


262 


Amos, Helen 


Maijoribanks, 


18 


76 


Anderson and others 


PerUi Union Bank, 


9 


42 


Anderson, Dr Charles 


Scott, 


72 


281 


Anderson 


Anderson, 


130 


539 


Annan« Magistrates of 


Pool, 


33 


123 


Anstmther, Sir WiUiam 


Anstmther, Mrs, 


38 


149 


Amott, Dr, and othen 


Johnstone, 


125 


508 


Anld 


Black, 


42 


163 


Pursuers, 


B 

Defenders, 






Baird 


Polmont, Common Agent of, 


135 


567 


Barr 


Clyne, 


79 


294 


Beck 


Learmonth and Co. 


17 


72 


BeU 


Bank of Scotland, 


23 


93 


Berford 


Brown, 


118 


474 


Beveridge and Maclarty 


Livingston, 


11 


57 


Bignald*8 Tmstee 


Campbell, 


127 


515 


Btrtwhistle's Trostees 


Macro, 


107 


422 


Black 


Auld, 


42 


163 


Blackete 


Forster's Trustees, 


114 


449 


Brownlee and others 


Waddell and others, 


8 


36 


Bronghton 


Cameron's Trustees, 


81 


300 


Bronghton 


Cameron's Trustees, 


82 


306 


Bruce 


Hamilton, 


50 


198 ^ 


Buchanan 


Zuill, 


108 


425 


Buns and Trustee 


Henry, 


100 


401 


Burntisland Whale-Fishing Co. 


. Leven, Trotter, and others. 


37 


146 


Defenders, 


Pursuers, 






Baikie, Steyenson, and Scott 


Stewart and Curator, 


86 


315 


Baillie, Mrs, and others 


Scott, 


14 


65 


Baird 


Raeburn, 


138 


583 


Bennet and others 


Hamilton, 


64 


258 


Bennet and others 


Hamilton, 


83 


308 



INDEX OF NAMES. 



Defenders. 


Pursuers. 


No. Page. 


Beveridge 


Freen, 


132 


553 


Binnie 


Taylor, 


129 


621 


Blair 


Watson, Mrs, and others. 


3 


7 


BIyth and others 


Maberly's Assignees, 


143 


617 


Breadalbane, Marquis of 


Maclaren, 


34 


136 


Braidwoods 


Muir, 


16 


68 


Bremner and others 


Kerr, 


141 


592 


Bridges 


Hamilton and others, 


51 


201 


Bridges 


Archibald, 


145 


627 


British Commercial Insurance 


' 






Co. 


Paul, 


93 


369 


Brock 


Ridgway and Nephew, 


24 


98 


Brown 


Berfordi 


118 


474 


Bruce 


Lang, 


142 


594 


Burnside^s Trustees 


Aitchison and Co. 


59 


235 


Bruntisland Whale- Fishing Co. 


. Trotter and others. 


84 


309 


Pursuers. 


C 

Defenders. 






C«lderhead*s Trustees 


Marshall and others, 


112 


439 


Caledonian Foundry Co. 


Clyne, 


28 


110 


Caledonian Foundry Co. 


Clyne, 


29 


111 


Campbell, Archibald 


Campbell, Mrs, 


73 


282 


Campbell, Sir A. 


Westenra* Hon. Mrs, 


133 


560 


Cheyne 


Thomson, 


119 


479 


Cogan 


Lyon and others, 


53 


208 


Cox 


Stead, Mrs, and others, 


26 


105 


Crowder 


Watsons, 


7 


30 


Defenders. 


Pursuers. 






Cameron *8 Trustees 


Broughton, 


81 


300 


Cameron's Trustees 


Broughton, 


82 


306 


Campbell 


Macmillao, 


45 


170 


Campbell, Mrs 


Campbell, Archibald, 


73 


282 


Campbell 


Bignald*8 Trustee, 


127 


515 


Chalmers' Trustees 


Maclellan, Mrs, 


75 


286 


Clark 


Sim, 


19 


78 


Clyne 


Caledonian Foundry Company, 


28 


no 


Clyne 


Caledonian Foundry Company, 


29 


HI 


Clyne 


Barr, 


79 


294 


CoWille and others 


Guthrie and others. 


95 


375 


Caven 


Mackie, 


104 


416 


Cox and Megget 


Turcan and others, 


66 


265 


Craufuird, Mrs, and Soa 


Torrance, Mrs, and Husband, 


40 


157 


Pursuers. 


D 

Defenders. 






Dick 


Taylor's Trustees, 


5 


16 


Dickson 


Gracie and Ferguson, 


68 


272 


Donaldson's Trustees 


Eadie, 


99 


399 


Duddingston, Kirk«Semion of 


Halybnrton and others, 


41 


161 


Dundee & Newtyle Railway 


HaMan and others. 


55 


212 


Company 








Defenders, 


PursuerSm 






Dizona and others 


Fisher and others, 


10 47 



INDEX OF NAMES. 



Defenders* 


Pursuers. 


No.] 


Page. 


Donftldton 


Scott and Livingston, 


25 


102 


Donaldton's Trustees 


Finl<y, 


98 


396 


Dundee, Kirk-Sesrion of 


Niooll, 


126 


514 


Ducat's Trustees 


Munnay's Trustees, 


131 


547 


Pursuers* 


£ 

Defenders. 






Edinburgh, Magistrates of 


Officers of State, 


6 


22 


Defenders. 


Pursuers. 






Eadie 


Donaldaon's Trustees, 


99 


399 


Edinburgh Life Insurance Co. 


Sir Wm. Forbes and Company, 


92 


351 


Purtuers, 


F 

Defenders, 






Farquharson 


Thomson, 


97 


387 


Fife 


Fraser, 


76 


287 


Finlay 


Donaldson's Trustees, 


98 


396 


Finlay and Co. 


Fleming, 


134 


564 


Fisher and others 


Dixons and others, 


10 


47 • 


Forbes, Sir William, and Co. 


Edinbargh Life Assurance Co. 


92 


351 


Freen and others 


Beveridge, 


182 


553 


Defenders. 


Pursuers. 




» 


Usher 


Scott, 


57 


226 


Fleming 


Finlay and Co. 


134 


564 


Forster s Trustees 


Blackets, 


114 


449 


Fraser 


Fife, 


76 


287 


- 


G 






Pursuers. 


Defenders, 






Gibson 


Stevenson and others, 


106 


421 


Gifford 


Kerr, 


80 


298 


Gilfillan 


Henderson, 


96 


385 


Gillespie and others 


Hope and others, 


36 


142 


Glasgow's Trustees 


Glasgow's Heirs, 


87 


332 


Gowans 


Oswald, 


31 


117 


Gtttbria and others 


CoWille and others. 


95 


375 


* 

Defenders. 


Pursuers. 






Garvie 


Perth, Hammermen of, 


136 


572 


Glasgow's Heirs 


Glasgow's Trustees, 


87 


332 


Glasgow Police Commissioners 


Watson and others, 


94 


370 


Glennie and others 


.Weir, 


58 


229 


Gracie and Ferguson 


Dickson 


68 


272 


Graham 


Simpson and others, 


12 


62 


Greig 


Henry, 


47 


187 


Pursuers. 


H 

Defenders. 






Hamilton and others 


Bridges, 


51 


201 


Hamilton 


Bennet and others, 


64 


258 


Hamilton 


Bennet and others, 


83 


308 


Hamilton 


Russell, 


105 


419 


Henderson and others 


Reid, 


120 


490 


Henry 


Greig, 


47 


187 



INDEX OP NAMES. 



Ptarsuera. 
Henry 
Henry 
Hopetoun^ Earl of 



Defenders. 
Haldan and others 
Halyburton and others 
Hamilton 
Harris and Bell 

Hay and others 

Henderson 

Henry 

Hope and others 

How 

Hunter and others 

Hunter and others 



PuTiuerg. 
Inelis and Co. 
Johnston 
Johnstone 

Defendere, 
Inglis 
Inverkeithing Locality, Com< 

mon Agent of 
Jobeon 
Irring and others 



Pwnurs. 
Kemp 
Kerr 
Kincaid 
King 
Kirkland and others 

Defenders. 
Kerr 

Kerr and Inglis 
Kinnear and Sons 
Kirkpatrick 
Kirkwall, Magistrates of 



Defenders. 


Ko. ] 


Page. 


Macewan, 


110 


430 


Watt and others. 


122 


496 


Inverkeithing Locality, Com* 






mon Agent of, 


67 


270 


Pursuers, 






Dundee & Newtyle Railway Co. 


. 55 


212 


Dnddingston, Kirk-Session of, 


41. 


161 


Bruce, 


50 


198 


Northumberland, Duke of, and 






others, 


70 


275 


Rae, 


61 


241 


Gilfillan, 


96 


385 


Bums and Trustee, 


100 


401 


Gillespie and others. 


36 


142 


Mein, 


2 


4 


Luke and others, 


62 


247 


King, 


103 


412 


I&J 






Defenders, 






Lane and Co. 


71 


276 


Inglis, 


52 


205 


Amott and others. 


125 


508 



Johnston, 



Pursuers, 



Hopetoun, Earl of, 

Reid, 

Richardson, 

K 

Defenders, 
Mackenzie, 
Bremner and others, 
Agnew,''Sir Andrew, 
Hunter and others. 
Slater, 

Pursuers, 
Gifford, 

Woods and Croudace, 
Attwood and others, 
Minto and Garin, 
Lord Advocate, 



52 205 

67 270 

115 456 

117 467 



78 
141 

91 
103 

35 



80 

139 

144 

39 

63 



291 
592 
347 
411 
138 



298 
587 
620 
144 
256 



Pursuers. 
Laird 
Lang 
Lawson 

Lockhart and others 
Luke and others 



Defenders. 
Middleton, 
Bruce, 
Ogilrie, 

Lanark, Magistrates of. 
Hunter and others, 



21 I 89 

142 594 

101 403 

49 191 

62 247 



INDEX OF NAMES. 



Defenders, 


Pursuers, 


No. Page. 


Lanark, Magistretes of 


Lockhart, 


49 


191 


Lane and Co. 


Inglis and Co. 


71 


276 


Learmonth and Co. 


Beck, 


17 


72 


Leven and others 


Burntisland Whale- Fishing Co. 


87 


146 


LmngBtone 


Beveridge and Maclarty, 


11 


57 


Lyon and others 

« 


Cogan, 


53 


208 


Pursuers, 


M 

Defenders, 






Maberly's Aasignees 


Blyth and others, 


143 


617 


Macdonald and others 


Macdonald, Lord, 


113 


441 


Macgill 


Melvin, 


15 


67 


Mack 


Allan and Simpson, 


65 


262 


Mackie 


Caven, 


104 


416 


Mackenzie 


Reid and Nicolson, 


20 


84 


Maclaren 


Breadalbane, Marquis of, 


34 


100 


Maclean 


Sheriffs, 


44 


167 


Maclellan and Spouse 


Chalmers' Trustees, 


75 


286 


Macmillan 


Campbell, 


45 


170 


Marm and others 


Macartney, 


60 


237 


Maijorihanks 


Amos, 


18 


76 


Megget 


Scoular, 


48 


189 


Mein 


How, 


2 


4 


Meek 


Smith, 


124 


505 


Minto and Gavin 


Kirpatrick, 


39 


154 


Mitchell 


Morrison and others, 


46 


180 


Montrose, Magistrates of 


Scott, 


43 


164 


Morrison and Co. and others 


Tumbull and Morrison, 


54 


210 


Mnir 


Braidwoods, 


16 


68 


Murdoch and Brown 


Wylie and Noble, 


88 


340 


Murray s Trustees 


Ducat's Trustees, 

■ 


131 


547 


Drfenders. 


Pursuers, 






Macartney 


Macra and others. 


60 


237 


Macdonald, 


Wordie, 


30 


114 


Macdonald, Lord 


Macdonald and others. 


113 


441 


Macewan 


Henry, 


110 


430 


Mackenzie 


Kemp, 


78 


291 


Macra 


Birtwhistle's Trustees, 


107 


422 


Marshall and Fyfe 


Calderhead's Trustees, 


112 


439 


Melvin 


Macgill, 


15 


67 


Menzies 


Stewarts, 


111 


438 


Middleton 


Laird) 


21 


89 


Miller and Kerr 


Scott and Gifford, 


80 


298 


Momson and others 


Mitchell, 


46 


180 


Mansie and others 


Torrie, 


116 


462 


Pursuers, 


N 

Defenders, 






Nasmyth or Macqneen & others Nasmyth, Sir J. trustees of. 


90 


343 


Neijaon 


Thompson, 


89 


342 


Nicholson 


Roberts, 


69 


273 


NicoU 


Dundee, Kirk-session of. 


126 


514 



Northumberland, Duke of, and 
others, Harris and Bell, 



70 275 



INDEX OF NAMES- 

Defenders, « Pursuers. No. Page. 

Nwrnyth, Sir J. TtosIma of Nasmydi or Macqueen & otheis, 90 343 



O 



Pursuers. 


Defenders. . 






Orr and others 


Vallance and others, 


92 


90 


Defenders, 


Pursuers. 






Ogilvie 


Lawson, 


101 


403 


Oliver 


Scotts, 


4 


13 


Officers of State 


Edinburgh, Magistrates of, 


6 


22 


Oswald 


Gowans, 


31 


117 


Pursuers. 


P 

Defenders. 






Paul 


British Commercial Insurance Co. 93 


369 


Perth Union Bank 


Anderson and others. 


9 


42 


Perth, Hammermen of 


Garvie, 


136 


572 


Pool 


Magistrates of Annan, 


33 


123 


Defenders. 


Pur&uerS. 






Pirie 


Stephen and Dnirs, 


56 


222 


Pollock 


Young, 


109 


427 


Polmont, Common Agent in 


Baird, 


135 


567 


Pringle • 


Tate and others, 


140 


590 


Defenders. 


Q 

Pursuers. 






Queensberry Executors 


Taylor's Trustees, 


5 


16 


Pursuers, 


R 

Defenders. 






Rae 


Hay and others. 


61 


241 


Raeburn 


Baird, 


138 


583 


Reid 


Jobson, 


115 


456 


Ridgway and Nephew 


Brock, 


24 


98 


Richardson 


Irving and others, 


117 


467 


Defenders. 


Pursuers. 






Ranken 


Tborbum, 


74 


285 


Reid 


Henderson and others. 


120 


490 


Reid and Nicolson 


Mackenzie, 


20 


84 


Richardson 


Wyld and Co. 


102 


406 


Roberts 


Nicholson, 


69 


273 


Rogerson 


Smyth, 


85 


310 


Russell 


Hamilton, 


105 


419 


Pxvrsuers. 


S 

Defenders. 






Scott, W. and A. 


Oliver, 


4 


13 


Scott 


Baillie and others. 


14 


65 


Scott 


Anderson, 


72 


281 


Scott 


Fisher, 


57 


226 


Scott and Gi£ford 


Miller and Kerr 


80 


298 


Scott and Liyingston 


Donaldson, 


25 


102 



INDEX OF NAMES. 



Pursuers. 


Defenders, 


No. 


Page. 


Sfaarpe 


Sliarpe and Others, 


137 


577 


Sheddan 


Sharp, 


77 


289 


Sim 


Clark, 


19 


78 


Simpson and others 


Graliam, 


12 


62 


Snclair 


Wilson and Maclellan, 


121 


493 


Smyth 


RogersoB, 


S5 


310 


Stark 


Smith, 


32 


120 


Stein's Assignees 


His Trustees, 


123 


498 


Stephen and Dnin 


Pirie, 


56 


222 


Stewait 


Stewart, 


128 


516 


Stewait and Curator 


Baikie and others, 


86 


316 


Stewarts 


Menzies, 


111 


438 


Defenders. 


Pursuers. 






Sandenoan and Miller 


Thomson, 


1 


1 


Scotland, Bank of 


Bell, 


23 


93 


Scott 


Montrose, Magistrates of. 


43 


164 


Scoalar 


Megget, 


48 


189 


Sharp 


Sheddan, 


77 


289 


Sharpe 


Sharpe, 


137 


577 


Slater 


Kirkland and others, 


35 


138 


Sberrifls 


Maclean, 


44 


167 


Smarts 


Young, 


27 


107 


Smith 


Stark, 


32 


120 


Smith 


Meek, 


124 


505 


Stead and others 


Cox, 


26 


105 


Stein*s Trustees 


His Assignees, 


123 


498 


Stewart 


Stewart, 


128 


516 


Ste^enaon and others 


Gibson, 


106 


421 


Pursuers. 


T 

Defenders. 




- 


Tate and others 


Pringle, 


140 


590 


Taylor's Trustees 


Qneensberry Executors, 


5 


16 


Taylor 


Binnie, 


129 


521 


Thomson 


Sandeman and Miller, 


1 


1 


Thorbnm 


Ranken, 


74 


285 


Torrance and Husband 


Craufuird and Son, 


40 


157 


Torrie 


Munsie and others, 


116 


462 


Trotter and others 


Burntisland Whale- Fishing Co. 


84 


309 


Turcan and others 


Cox and Megget, "^ 


66 


265 


' Defenders. 


Pursuers. 






Taylor 8 Trustees 


Dick, 


5 


16 


Thomson 


Neilson, 


89 


342 


Thomson 


Farquharson, 


97 


387 


Thomson 


Cheyne, 


119 


479 


Tnmbull and Morrison 


Morrison and Co. and others. 


54 


210 


Defenders. 


V 

Pursuers* 






Vallance and others 


Orr and others, 


22 


90 



INDEX OF NAMES. 



W 



Pursuers, 


Defenders, 


No.] 


Page- 


Wataon and others 


Blair, 


3 


7 


Wateon and othere 


Glasgonr Police Commissioners, 


, 94 


S70 


Weir 


Glennie and others, 


58 


229 


Wilson 


Webster and others, 


IS 


63 


V^^ooda and Crondace 


Kerr and Inglis, 


139 


587 


Wordie 


Macdonald, 


SO 


lU 


Wyld and Co. 


Richardson, 


102 


406 


Defenders. 


Pursuers, 






Waddell and others 


Brownlee and others, 


8 


36 


Watsons 


Crowder, 


7 


SO 


Watt and others 


Henry, 


122 


496 


Webster and otliers 


Wilson, 


)S 


63 


Westenra, Hon. Mrs 


Campbell, Sir A. 


ISS 


560 


Wilson and Maclellan 


Sinclair, 


121 


493 


WyUe and Noble 


Murdoch and Brown, 


88 


340 


Pursuers, 


Y 

Defenders, 






Young 


Smarts, 


27 


107 


Young 


Pollock, 


109 


427 


Defender, 


Z 

Pursuer, 






Zuill 


Buchanan, 


108 


425 






• ' . 



DECISIONS 






OF THE 



COURT OF SESSION. 



SECOND DiriSJON. 
No. I. 12 November 1831. 

THOMSON 

agaiiut 

SANDEMAN and MILLER. 

« 

Bill of Exchange* — Proof. — I. What held sufficient evidence of 

. notice ofdiehonour of a bUL 

II. The evidence of an agents thai a bill for the price of a consignment, 
was indorsed^ at his desireyfor the accammodatian of the consignor y 
by a party not responsible for the purchasery is incompetenty in a 
question between such party and the consignoTy as holder of the hiU^ 

Datid Thomson consigned a parcel of goods to William Rich- 
ardson, commission-agent in Leith, for the purpose of being sold or 
bartered by him» on the consignor's account. Richardson accord- 
ingly exchanged the consignment for other goods» which he trans- 
mitted to Sandeman and Miller, merchants in Glasgow, who sold 
part of them to one Hunter, for L.22 : 19 : 4. For this sum Hun-< 
ter accepted a bill drawn by Sandeman and Miller, who blank in-, 
dorsed and transmitted it to Richardson. The bill was afterwards 
discounted by Thomson, with the branch of the National Bank ai 
you vii. A 



2 DECISIONS OF THE No. I. 

If Not. 1831. Oalashiels. The acceptor/ heing unable to retire his obligation, 

^"^y^ gave Sandeman and Millei? another bill, drawn by a third party 

Sandeman'and ^P^^^ ^^^^9 ^'^^ which, ' without indorsing it, they transmitted to 

Jkdiiler. Richardson, who .sent St to his constituent Thomson. The origi- 

Aal bill was, aboiit the same time, returned dishonoured to the Bank, 

* • 

and was afterwards retired by Thomson. 
8ttBpcDd«n* The se^nd bill having been, in like manner, dishonoured, 
FlMt. Thomson raided diligence upon it against Sandeman and Miller, 

who.suspi^nded payment, upon the grounds, 1. That the goods were 
■oldby'diem, as agents, upon an ordinary commission, of which the 
ac^^ount-sales rendered to Richardson was evidence, it being un- 
• \'derstood between them and Richardson that they should not be re- 
'. ' V 'sponsible for the solvency of the purchasers ; and that, accordingly, 
they indorsed the bill, simply as an accommodation to the charger, 
and in oxder that it might be more easily discounted. 2.. That the 
renewed bill was received, both by Richardson and the charger, with- 
out complaint, though it was expressly stated to the former, at the 
time it was transmitted to him, that it had been granted by Hunter 
and his cautioner in security of the payment of the old bill. 3. That 
recourse against the suspenders, as indorsers on the bill charged on, 
was lost, in consequence of the failure to intimate the dishonour of 
the bill, and the intention of the charger to hold them responsible 
for it* The suspenders &rther pleaded, in point of law, that Rich- 
ardson having been the accredited agent of the charger in the trans- 
action in question, the latter must be bound by that party's acts, 
and by the evidence aflforded by his writ and oath, equally as he 
would be by evidence of the chai^er himself. 

Caiarger*f Xhe oharg«r did not admit die alleged understanding between 

the suspenders and his agent Richardson, who, they stated, had no 
authority to bind them in that matter. And he pleaded — I. That 
the suspenders' liability was not discharged by his taking a new bill 
in security of the old one which was reined. 2. That the sus- 
penders oan prove their allegations by the charger's writ or oath 
only. And, 8. That due notice of the dishonour was given to the 
suspenders ; and, besides, notice must be presumed, from the sus- 
penders having, within the period when notice ought to hav^ been 
given, procured a renewal of the bill from tiie aceeptor. 

A proof being allowed of the notice of the dishonour of the bill, 
the bank-agent, with whom the bill was discounted, and who was 
also the charger's private agent in the transaction in question, and 
a clerk in the Bank at thd time the bill was returned dishonoured, 
were the witnesses examined. The former stated, that the bill was 
dishonoured by the acceptor, and was returned to the deponent froni' 



Nb. 1. COURT OF SESSION. 9 

m 

6Iasg<w, an jer protest, on the 29tli of March 1827 ; thtt heintima^lS Not. is.?]. 
ted the dishonour of the bill to the suspenders by letter, dated 6th ^^^V^^ 
April 1827, being the day on which the charger retired the bill from stmkniMi^and 
the Bank ; that he could not say that he personally put the letter in Miller. 
die Post*Office, but he had no doubt that, in the ordinary course of 
bumness, and according to the practice of his office, that either he or 
his clerk did so on the day on which the letter was written. The 
evidence of this clerk, whose occasional duty it was to intimate the 
dishonour of bills, and put letters into the Post-Office, went merely 
to shew, that there was regularity and attention observed by all 
parties who had the charge of putting letters in the Post^Office ; 
and that he remembered of the bill in question being returned dis- 
honoured, and also having seen a letter addressed to the su^nders, 
from the Bank-Office, but he could not speak as to the date or ob- 
ject of the letter. On the other hand, Sandeman and Miller, being 
examined as havers, deponed, that they never received a letter of 
any description in relation to the bill, either from the charger, his 
agent, or any other person. 

The Lord Ordinary * found it proven, that intimation of the dis- 

* honour of the bill charged upon was given to the suspenders, and 
' therefore repelled the reasons of suspension founded on the denial 
^ of aaid intimation ; repelled also the other reasons of suspension ; 

* found the letters orderly proceeded, and the suspenders liable to 

* tlie charger in e:cpenses.' 

A reclaiming note against this interlocutor was unanimously re- 
fused. 

Lord Cringletie was of opinion, that it must be held that the sus- OpinioD of 
penders got regular notice of the dishonour ; and that it was impos- ^**"'*' 
sible to get the better of the evidence of the bill itself, unless their 
allegations could be proved by reference to the charger's oath. 

Lord Glenlee. — Holding the letter of intimation to have been 
written and put in the Post-Office, there remains nothing in the 
other objections. The suspenders' statement just resolves into 
this allegation, that as to them there was originally no ground 
of debt And it may be true, that they might have been free had 
they not put their names on the bill in question. But having 
done so, how is it possible that their allegation can be received ? 
I must go on the ordinary rule, that, as drawers and indorsers, 
they are liable. With regard to the question o( intimation, I 
cannot lay aside the oaths of the suspenders, who swear that they 
got no siich letter as is alleged to have been sent Their private 
knowledge that Hunter was not to pay Che bill will not do, as there 
asuatbe official notice. If there was evidence that the letter iras 

a2 



4- DECISIONS OF THE Nb. r.' 

12 Not. 1831. sent to the Pbst-OflSce, that would be' enough. ItU, however, 
^^V^*^ not denied, that the notice was for some time at least delayed, and 

siin^nuLD and ^^ ^9 ^^ must have been at the instance of the charger, and he had. 

Miller. then got a new bill. But, on the whole, the evidence of the writing 

of the letter, and the belief that it was sent to the Post-Office, is 
strong, and I dare say the Lord Ordinary was right in holding that 
it was so in £sict. 

Lord Meadowbank, — I agree in thinking that the interlocutor is^ 
right, and, in particular, that the evidence of the intimation is suf-. 
ficient. The circumstances here come very near those stated in the 
opinion of Lord Ellenborough, in the case of Hetherington, cited 
by the charger, (4 CampbeWs Rep. 194), as affording sufficient 
evidence. 

LardJustice^Clerk. — I am of your Lordships' opinion, that the 
suspenders having chosen unqualifiedly to indorse the bill, they 
must be held liable, whatever may have been the real nature of the 
transaction as understood between them and the charger's agent. I 
also hold the evidence of intimation sufficient, and concur with Lord 
Meadowbank in viewing the case of Hetheringfton as an authority 
in point. 

Lord Mackenzie, Ordinary. For tbe suspenders, Dean ofFac (Hope^J MaUeidh, 
Js. PatHeon^ W. S. Agent. For tbe charger, P. Rnbertmm^ Qraham BdL 

Jm. Ueher, Agent. T. Clerk. 

S. 



SECOND DIVISION. 

No. IL 12 November 1881. 

ALEXANDER MEIN 

affoinst 

WILLIAM HOW. 

Jus Tertii. — Jurisdiction. — Sesuestration. — An action bein^ 
brought before an inferior courts against a trustee on a sequestrated 
estate^ for payment of dividends on the pursuer' 8 dd>tj and the trustee 
having raised an action of relief against a third party^ to wham 
these dividends had been already paid, found that the alleged in^ 
competency qfthe inferior court to entertain the original action was 
not pleadable as a defence in the action of relief. 

A bill for L. 175, held by one Swan, was, without objection, 
ranked on the sequestrated estate of the GJasgow ^ew.TanwQrk 



No. 2. COURT OF SESSION. S 

Company; and dividends on the same were accordingly declared 18 Nov. 1831. 

in the scheme of division, and paid by Roxburgh, the trustee, to ^^^V^^ 

the defender How, who appeared to have authority to receive *'""' 

them. Swan afterwards brought an action in the burgh court of 

Glasgow against Mein, Rozbui^h's successor in the trusteeship, for 

payment of these dividends, alleging that they had not been paid 

to him, and that he had never given How any authority to uplift 

them. The trustee, in consequence, instituted an action of relief 

before the same court against both How and Roxburgh. The two 

actions were conjoined, after the record in the original action had 

been closed, without objection on the part of the trustee to the 

jurisdiction of the court* But, subsequently, an objection to that 

effect was taken by How, as a preliminary defence in the action of 

relief. The magistrates, however, decerned against the trustee in 

the original action ; and thereafter, in the action of relief, ^ found 

* that any right which the defender Mein may have had to object, 
' as trustee on a bankrupt estate, to the jurisdiction of an inferior 

* court, was personal to himself, and is jus tertii to the defender 

< How; and therefore repelled the preliminary defence, now urged 

< by the defender How, and sustained the competency of the action 

< of relief against the defender.' 

In an advocation How pleaded — 1. The original action being Defender's 
brought against Mein as trustee, while the sequestration was still ^i«^ 
in dependence, the inferior court was not competent to entertain 
the action, notwithstanding the attempt on the part of the trustee 
to prorogate its jurisdiction ; Mitchell v. Mein, 7 July 1829 ; 
54 Geo. in, c. 137 ; and, consequently, a decree obtained in such 
action could not be the foundation of the action of relief. 

2. Even if the attempt to prorogate the jurisdiction had not been 
in itself incompetent, it was rendered so by the previous institution 
of the action of relief, and conjunction of the two processes, where-i 
by the defender became the verus dominus litis, and was entitled 
to plead the objection to the jurisdiction of the inferior court, 
equally as the trustee himself. 

It was answered — 1. When the official management of a trustee Pursucr^a 
is not brought into question, but merely a claim made against him ^'*^ 
for admitted dividends which had been regularly declared, an action 
for payment of such dividends is competent before an inferior court. 
The case of Mitchell v. Mein involved a question as to the trus- 
tee's management, and judgment proceeded on that ground ; but 
no such question occurs here. 
. 2. Assuming that the competency of the origiiuil action .nugh^ 



6 



DECISIONS OF THE 



No. 2. 



Pursuer's 
Pleas. 



]^ Nov. 16S1. have been sueeeflsfully contested by the trustee, yet it was an ob» 
. jection personal to himself, which he might waive; and it was jus 

' tertii to the defender. How, to object to the trustee prorogating the 
jurisdiction of the inferior court. The objection was accordingly 
waived by the trustee, and the decree pronounced in &vour o£ 
Swan implemented by payment. 

8. ^The objection of incompetency was not stated tempestive. It 
was not brought forward by How till six months after the record 
in the original action had been closed, prior to which How had 
lodged defences in the action of relief, wherein there was no aliu^ 
sion to any such objection ; and, therefore, as the objection was 
stated too late to be available as a defence in the original action, it 
cannot, with justice, be pleaded by How as a defence in the pre-* 
sent action. 

The Lord Ordinary, < in respect it was not incompetent for Mr 
^ Mein to bring an action in the inferior court, against the advoca* 

* tor, for repayment of the dividend due upon Swan's bill, alleged 

* to have been unduly received by him, repelled the reasons of ad* 

* vocation, and remitted the cause simpliciter to the magistrates ; 
^ and found the advocator liable in expenses/ 



Opinion of 
Court. 



Against this interlocutor a reclaiming note was unanimously re- 
fused. 

The Court did not think that the defender was precluded, by the 
proceedings in the inferior court, from pleading the objection ; bat 
their Lordships held that it was not a good objection when urged 
by the defender, whatever the effect might have been if pleaded 
by the trustee in the original action. 

Lord Cringletie said — I cannot see where the alleged incompe- 
tency is. This case is totally different from that of Mitchell and 
Mein, which involved a charge against the official conduct of a tru** 
tee. Here the dividends form just a simple debt payable by the 
trustee, there being no dispute that these dividends were properiy 
set apart But even here it is not, as in the case of Mitchell, the 
trustee who states the objection, but a party from whom the trustee 
demands repayment of the dividends, as having been received with- 
out authority. I therefore think the interlocutor right. 

Lord GUnlee. — I think the interlocutor right I shall not say 
that it would not have been competent to the trustee to maintain 
this objection on the authority of the case of Mitchell and Mein» 
But that is not the question here. Could the trustee not legally 
pay the dividends without being compelled by an action brought 
before this Court ? I cannot understand that The trustee might 
have paid without any action. It is therefor^ no good obJectiDn 



Vo. 2. COURT OF SESSION. 7 

luat the aedon-in wlueb the trustee gubmitted to decree against him It Nov. lasi. 
is supposed to be an incompetent action, when he might liare paid ^"^V^^ 
the debt without any action at alL M eJnp.H ow. 

Lord JuiHee^ClerL'^l am of the same opinion. The interlocu- Opioion of 
tor does not impinge on the case of Mitchell* Court. 

Lard Meadmebank considered Mitdiell's case as a question re- 
garding the trustee's management of the sequestrated estate, while 
he thought no such question was inrolved in the present case. 

LBfdMtimymf Ordiiiuy. For ihrodvocator, JDtm o/Fac, (Bcf^) AiL Pattn^ 
A. ۥ Howdet^ W. S* Agtnt. . For the respondent, VAw^, Cko. Craiie. 

W. S. Agent. T, Clerk. 



PIRST DIVISION. 
No. III. 16 November 1831. 

Mas HENRIETTA MAXWELL or WATSON, and hbr 

Husband, and theib Children, Pursuers ; 

against 
ALEXANDER BLAIR. 

Prbbvji FTIOM. — Legacy. — *A testatrix havinff, by a codicil, bequeath* 
edio a party and her children ^ the sum o^ jLlOOO belonging to me^ 

< and preeemtbf vested in the^fioe per cent* Government stock, orpub^ 
' Uc funds ; andjurtbery in the event of my not being possesud of 

* L^IOOQ fioe per cent* Oovemment stock at the time of my death, 

* out of tehich the foresaid legacy may be paid^ having bequeathed 

< ^'Sum if XmIOOO sterling, in place of the special legacy herein 
^ b^bre l^ tliem ;' and having thereafter, by a deed inter vivos, 
nuide. oi tranrfer to. the legatee of LAOOO of four per cent* stock, 
(Ae^fioeper cent, stock having, in the mean time, been converted by 
Government into fmr per cent, stock,) and the legatee having, by 
writing, provided thai the interest of ike sum in question was to be 
paid ta the testatrix during her life; — held, in an action at tlie instance 
ofAe .legatee, against the representative of the testatrix, for payment 
ef.ihe Ugaey, t/wt the transfer in question was not to be held as an 
anticipation or rfivocption of the previous legacy f but an additional 
dmsation inter vivos, and that tlie l^atee was entitled to payment of 
Ae kgeny ako, vi$ terms- of tiie codicil 



8 DECISIONS OF THE No. 3. 

J6 Nov. lasi. By deed of setdiement, (26 April 1802,) the late M» Irvina Max- 
^"^V^^ well disponed all her estates and effects, real and personal, in fiei- 

Biair^"* ^ ^^^ ^^ ^^^ defender Mr Blair, who was married to a niece of Ae 
testatrix, and appointed him her executor, under the burden of cer- 
tain legacies. 

In April 1810, the testatrix, ndio was then residing at Cliflkon, 
^executed another setdement, by which she ol new appointed the 
defender her executor, and conveyed to him, in trust for his daugh- 
ters, her dwelling-house in Edinburgh ; and about six months there- 
After she executed another settlement, by which she also appointed 
the defender her sole executor, under the burden of certain lega- 
cies, and recalled her first settlement of 1802, and all other settle- 
ments made by her, excepting the one executed in April 1810, 
which was to remain in full force* 

In May 1822, Mrs Maxwell executed a codicil to her last will 
and testament in the following terms : * I, Mrs Irvina Maxwell, 

* only surviving sister of Sir David Maxwell of Cardoness, Baronet, 

* and presently residing at Clifton, near Bristol : Whereas I some 

* time ago executed a deed of settlement or last will and testament, 

* disposing of whatever I should be possessed of at the time of my 

* death, and it being my intention in so far to alter said will or tes- 

* tainent by making the present writing, which I declare to be a 
^ codicil to my said will : Therefore, and for the love and favour 
^ and affection which I have and bear to Mrs Henrietta Maxwell, 

* my niece, daughter of the said Sir David Maxwell, and wife of 
^ Andrew Watson, Esq. writer to the signet, Edinburgh, I do here- 
'^ by legate, bequeath and devise, to and in favour of the said Henk 
^ rietta Maxwell or Watson, and to the children procreated of the 
^ marriage between her and her said husband, the sum of L.1000 

< belonging to me, and presently vested in the five per cent. Govern- 

< ment stock or public funds, their right thereto to conunence im- 
' mediately after my death, and the first dividend payable there- 

* after to belong to them ; declaring, that the said Henrietta Max- 
^ well or Watson shall have full power, by any writing to be exe- 

< cuted by her, to divide the said L.1000 five per cent, stock adiongat 

* her children, in such proportions as she shall deem proper ; but 

* that failing her making such division, the said sum shall, iqMmher 

* death, be divided equally amongst her said children ; and that she 
' shall also have full power to uplift and discharge, not only the di- 
' vidends arising due on said stock after her succession thereto, but 

* also the capital of the said stock itself, without the consent of her said 
« cliildren : And further, in the event of my not being possessed of 

< L.1000 five per cent. Government stock at the time of my death, 
' out of which the foresaid legacy may be paid, I do then legate, 



Vo. 3. COURT OF SESSION\ » 

bequeath, and devise to the said Henrietta Maxwell or Watson, l» N«r. 1931. 
and to the children procreated or to be procreated of the marriage 
between her and her said husband, under the declaration before ^^^^ 
specified, the sum of L.1000 sterling; which sum, with the due 
and lawful interest thereof from the period of my death, I do leave 
a burden upon whatever property, heritable or moveable, I shall 
be possessed of^ wherever the same may be situated at the time 
of my death, but declaring, that the said sum and interest shall be 
duQ and payable only to my said legatees, in place of the special 
legacy herein before left them : And in case said special legacy 
shally from my having disposed of my stock in the foresaid sums, 
or any other cause, not be exigible by my said legatees, I hereby 
reserve full power and liberty to myself, at any time, and even on 
deathbed, to revoke or alter these presents in whole or in part; 
but in so &r as this deed shall not be revoked or altered by a 
writing under my hand, I hereby declare that it shall be good, 
valid and effectual, to all intents and purposes ; and I consent to 
the registration hereof,' &c« 

This codicil was transmitted by Mrs Maxwell to her niece the 
pursuer, Mrs Watson, who was a younger sister of Mrs Blair, 
Subsequently, Mr Watson paid several visits to Mrs Maxwell at 
Olifton. On occasion of one of these, in 1824, she gave L. 600 to 
Mr Watson and his wife; and during another visit, in 1825, a 
transfer was made by her to them of L.1000 of four per cent stock. 
The following entry was made in the cash ledger at the Bank: 

< L.1000 four .per cents* transferred, 19 April 1825, to Andrew 
^ Watson, writer to the signet, and wife.' Between the date of 
the codicil in 1823 and this transfer, the five per cent stock had 
been reduced by Government to four per cent Of the same date 
with the transf^dr in favour of Mr Watson and his wife, the former 
wrote a letter, in the following terms, to Mrs Maxwell's bankers, 
Messrs EUton, BaiUies and Co. : ^ Please to pay the dividends 

* arising on L.1000 new four per cents* standing in the name of 

* Andrew Watson, writer to the signet, Edinburgh, and Henrietta 

< Maxwell or Watson, my wife, as they become due, unto Mrs 

< Irvina Maxwell, during her life. I am, &c. (Signed) An* 

* DREW Watson.' 

Mrs Maxwell died at Clifton in August 1 826. Mrs Watson and 
her husband brought the present action against the defender Mr 
Blair, as her representative, founding upon the above codicil, and 
concluding that he should be ordained to transfer to them, for their 
respective rights, ^ the sum of L.1000 vested in the five per cent. 

* Government stock or public funds, which belonged to the said 
' Mrs Irvina Maxwell, and which was specially bequeatlied to the 



10 



DECISIONS OF THE 



Vo. S. 



Blair. 



it^NtfT. ia^. i pursuers by the foresaid eodicil, with the dividends payable there- 
^ from, from and afiter her death, &c. Or otherwise, in case it ahidl 

< appear that the saud Mrs Irvina Maxwell had disposed of th« 
^ stock in the foresaid funds, or that, from any other cause, the said 
' legacy shall not be exigible by the pursuers, the said Alexander 
' Blair should be ordained to make payment to the puisaers of the 

< sum of L.1000 sterling,' &c 



Pursuen* 
Pl«u. • 



Defender's 
Pleas. 



In support of the action the pursuers pleaded-^ 

I. The oodidl executed by Mrs Maxwell having remained un* 
revoked at the period of her death, is a vialid and subsisting deed, 
and must be implemented by her executor and legal representative. 

IL The legacy therein left to the pursuers constitutes a valid 
and effectual bequest in their &vour, for their respective int^eMs, 
OS therein specified. 

IIL Mrs Maxwell not being possessed of L. 1000 five per cent. 
Government stock at the time of her death, die pursuers are en^ 
titled, in terms of the said codicil, to demand payment, for their 
respective interests, of the sum of L. 1000 sterling, with lawful in* 
terest from the period of Mrs Maxwell's death, out of any property^ 
heritable or moveable, which she died possessed of. 

IV. The defender being the admitted executor and representor 
tive of Mrs Maxwell, and having intromitted with the whole pro^ 
perty, heritable and moveable, belonging to her at her death, is 
bound to fulfil the conditions of the codicil; and, in terms thereof, 

to make payment of the said legacy to tiie pursuers. 

J** 

<^ 
leaded for the defender — 

L The legacy pursued for having been a special one, of aeertaia 
amount of stock which belonged to the testator, and the pursuers 
having received a transfer of that very subject from the testator 
herself while she was alive, they are not entitled either to claim 
the subject of that legacy a second time, or to claim, in lieu ihere^ 
of, a transfer of anotiher sum of stock, or payment of any sum of 
money. It was not properly a question of revocation of a legacy,* 
but the whole circumstances prove the transfer to have been an 
anticipated payment of the legacy, and that it was not the inten-< 
tion of the testatrix to give both. 

II. If the pursuers, Mr and Mrs Watson, did not receive the 
L. 1000 of stock which was transferred, as before mentioned, in sa- 
tisfaction of the bequest pursued for, they were bound to account 
for that stock to Mrs Maxwell, and are now bound to account for 
the same to the defender as her executor ; and the legacy pursued 
for would thereby be extinguished compeiasatione, or by retention, 
in respect that, both in fact, and according to the presumption of 



No. 8. COURT OF session; 11 

law, ebe nev^r intended to confer it upon tb^m as an additional 10 Mot> 1891. 

IIL Tbe above defences are not affected by tbe circumstance^ BiairT"*^*' 



that the legacy was destined, to jome extent, to the children of Mr ' 
and Mrs Watson, in respect ^at tbe destination was not granted p]*^" *'* 
(0 sucb children nominatim, but only to children designative and 
naacituri ; that, consequently, the fee of the entire legacy was con* 
ferred upon Mrs Watson, who had power, by the terms of the co« 
didl, to uplift and discharge the same, without the consent oi her 
children, and that it therefore devolved jure mariti upon ber bus* 
band ; that the defences of payment or satisfaction, and of compen*' 
sation or retention, being effectual* against Mr and Mrs Watson^ 
fore effectual against all concerned. 

< The Lord Ordinary repels the defences, and finds tbe defender 

< liable to tlue pursuers for their respective rights and interests in 
' tbe sum of L. 1000 sterling, witb interest from tbe 17tb. day of 

< August 1826, being tbe date of Mrs Irvina Maxwell's death, and 
^ decerns : And in regard no expenses of process are asked on tba 
' part of the pursuers, finds no expenses due.' 

* Naie. — Tbe legacy of L. 1000 in question, properly speakings 
^ was not a special legacy. It was a legacy payable out of a spe- 
^ cial fund, namely, tbe five per cent, stock, belonging to the testae 

* tor in tbe public funds. It is not asserted in tbe record, that at 
( tbe date of the codicil Mrs Maxwell bad only L. 1000 in tha 
^ five per cent, stodc ; on tbe contrary, it was candidly admitted at 

< tbe debate, that she bad a much greater value of five per cent. 

* stock, all which, bowever, in consequence of a measure of Go- 
( vemment relative to that stock, was converted into four per cent. 

* stock before ber dealb, and at ber deatb a much larger sum of 

* stock, so converted, belonged to her. The conversion, therefore, 

* plainly does not affect tbe question. Fartber, it was not a special 

* legacy in tbis respect, also, that there is a provision in tbe oodidiy 

* that if tbe testator bad not L. 1000 of five per cent stock at the 
' time of her death, the legacy should be paid out of tbe general 

< funds. In tbese circumstances, it does not ^pear that any rule 
^ can apply to tbis legacy, whicb would not bold in the case of a 

* general legacy. But a donation inter vivos, of a sum equal to 

< that bequeathed by an unrevoked mortis causa deed, is not to be 

* considered as a revocation of tbe bequest, unless very pregnant 
' evidence be adduced of the testatcM^'a intention to revoke. It is 

* thought that no sudi evidence exists in tbe present case.' 

To tbis interlocutor the Court adhered, on a reclaiming note for Judgment 
iha defender.. 



12 



DECISIONS OF THE 



No. 3. 



Waitofit V. 
Blair. 

OpinioD of 
Court. 



16 Nov. 1831. Lard Balgrajf observed — That the present was a questicm of pre^ 
sumed intention, which must be galliered from the terms of the 
codicil, and of the transfer of the L. 1000 of four per cent stock ; 
and the question was, whether there was sufficient evidence before 
the Court to satisfy their Lordships that this transfer was intended 
by the testatrix to come in place of the special legacy left by the 
codicil ? His Lordship thought there was not. There was no ques- 
tion as to the donation of L.600. With regard to the legacy, the 
terms of the codicil were clear and explicit, that the legatee was to 
have L.1000 of five per cent stock, if the testatrix had such stock at 
the time of her death, or otherwise that the sum of L.1000 was to be 
paid out of her general funds. The terms of this bequest must have 
been known to the testatrix at the time she made the transfer of 
L. 1000 of four per cent stock ; and if she had intended this to come 
in place of the legacy, she would have declared this in express 
terms, but not having done so, his Lordship thought the Court 
could not, on a vague presumption that this was her intention, go 
contrary to the solemn and explicit declaration contained in the co- 
dicil. 

Lord Gillies concurred, and said — That there were two other 
grounds on which he thoi^ht the interlocutor was well founded. — 1. 
In order that the transfer might be considered as in anticipation of the 
legacy, it was necessary that the subject of it should be the same, 
viz. either L.1000 in the five per cent stock, or L.1000 sterling ; 
but neither of these were the subject of the transfer. It was L. 1000 
of four per cent stock, which, although perhaps of nearly the same 
value, was not exactly the same, which was necessary to render it 
an anticipation of the legacy. But, 2^%, What was the occasion 
of going llirough th6 form, and of incurring the expense of this trans- 
fer, if the object merely was to anticipate or secure the payment of 
the legacy ? The testatrix had ample funds, and the legacy was 
already secured by the terms of the codicil, and was not rendered 
more effectual by this transaction, which therefore must have had 
some other object in view; and this ought to be considered in a 
question of presumed intention. 

Lord Craiffie was desirous of having further time to make up his 
opinion, as, under all the circumstances of the case, he thought it 
was attended with considerable doubt 

The Lard President had always considered the general rule of 
law to be clear, that revocations of legacies were not to be pre- 
sumed on light grounds, and that the presumption rather was, that 
donations or gifts of the nature of the one in question were to be 
considered as flowing from an increase of good will and affection to- 
wards the persoa favoured. It was. not incumbent, therefore, on 
the pursuers to produce direct evidence of the intention of the tes-i 



No. 3; COURT OF session; IS 

tatriz to make this additional bequest in her &votir, but on the de- 16 Nov. I83|« 
fender to prove an intention contrary to the presumption of law, ^"^^y^^ 
which, however, he had not done. Moreover, the codicil was deli- ^^^ ' ^* 
vered to Mrs Watson, and contained a declaration, that it should —^ 
Stand good unless revoked by a writing under her hand. Writing couru " ^ 
was therefore necessary to revoke, and revocation by implication was. 
excluded ; and least of all could it be held that the legacy was revok* 
ed, not by a writing under her own hand, but by a donation of some- 
thing different from that which was the subject of the legacy, and this 
on a mere presumption that it was to come in place of the legacy. 
If the transfer had been intended as a payment, why was not this de- 
dared by the testatrix, as it might easily have been done eitiier by. 
letter, or in the entry of the transaction in the books of the Bank ? 
Supposing that she had made a transfer of any other subject, as, for 
instance, a house, in favour of the pursuers, instead of L.IOOO of four 
per cent, stock, could it have been said, witiiout a declaration to thift 
effect, that tiiis must be considered as in payment of the legacy, be- 
cause the value of the subject might be nearly the same ? The le- 
gacy was so &r special, that it specified tiie fimds out of which It 
was to be payable, viz. five per cent stock; but it went on to de- 
clare, that the legatees were to have L.1000 sterling out of the ge- 
neral fimds, if she had no such stock at her death ; and the pursuers 
having received neither, and the testatrix having left no five per 
cent stock, they were entitied to insist on the alternative contained 
in the codicil. 

Lord Ordinary, Corthcmu, Act. Dean €f Fac. (Hoj^) Maoomchk^ Woker 

FudiiymM, W.S. Agenu Alu JEm^, Manhatt. H^h Blair, W.S. AgmiU 

S. Clerk. 

c. 



SECOND DIVISION. 

No. IV. 16 November 1831. 

W. AND A. SCOTT 

offainst 

ANDREW OLIVER. 

Jurisdiction.— Poinding.— 54 Geo. III. c. 137.— Circumstance$ 
in which a burgh of regality or barony was held independent of the su*- 
penary to the effect of entitling tiie magistrates of the burgh to 



14 DECISIONS OF THE No. 4. 

16 Not. 1831. receive reports ofpamdinffs jproeeeding cm letters qfhamififf, cmd to 
^•^V^^ grant warrants afsakfoUawinff an suck reportsj as judges ardmary 
V. 'au^^W' ««*^ ^ hanirupt act. 

Ter. 

Oliver, in virtue of letters of homing, obtained on a decree of the 
Sheriff of Roxburgh, against W. and A. Scott, executed a poinding 
of certain effects belonging to one of these parties ; and the execu«* 
tion of poinding being reported to the bailies of Hawick, they 
gpranted a warrant of sale. The Sootts brought a suspension of this 
warrant, particularly on the ground that the bailies of Hawick, 
whidi is a mere burgh of barony, are not judges ordinary, in terms 
df the bankrupt act, to whom it was competent to receive the report 
at die poinding and grant warrant of sale. 

The Lord Ordinary found the letters orderly proceeded ; and 
Ae suspenders having reclaimed, the Court ordered minutes of de- 
bate as to the regularity of the proceedings before the ma^trates 
of Hawick. 

Buspenden* ^^ ^^^ suspenders it was pleaded — From the general enactment 

Pleas. of the 20 Geo. IL c. 43, abolishing jurisdiction competent to burghs 

of regality and barony, those burghs only are excepted, * which are 
* independent of the lord of regality, or baron respectively.* But 
such independence had not at any previous period, nor has it 
ever since, been acquired by the burgh of Hawick. By the char- 
ter of erection, the baron did not denude himself of the superiority 
of the lands comprehended' in the grant, but, bn the contrary, de- 
clared, that they were to be holden by the grantees in feu, heritage, 
and free burgage of barony ; and the charter also specifies the duty 
and services to be rendered to the superior. Accordingly, the mo- 
dern, as well as the more ancient titles to the property in the town 
bear frequent reference to the barons of the barony of Hawick, 
as the superiors. Charges by adjudgers and others have been given 
to the successive proprietors of the barony as superiors, and the lat- 
ter have frequently concurred in granting or confirming the. titles to 
the inhabitants. ' The burgh of the barony of Hawick' is included in 
various acts of Parliament, and ratifications in favour of the proprie- 
tors of the barony about the end of the seventeenth century. The su- 
perior has frequently interfered to prevent the magistrates from im- 
posing duties and customs beyond what were authorised by their ori- 
ginal charter ; see Laird of Drumlanrig v. Bailies of Hawick, 15 Jan. 
1624, M. 3509. The successive superiors of the town have always 
been infeft in the burgh, with the fidia, customs and inunimities 



No. 4. COUET OF SESSION. 16 

thereof; and the present Duke of Bttccleugb is so in&ft, and does '^ Hot. issi. 



uplift these customs, as the baron or superior of the town. Finally, 

this family actually received the compensation provided by the ju- „^ Undraw OU- 

risdiction act, as the value and price of ^ the heritable office of the ver. 

* lordship and jurisdiction of the regality of Hawick.' 

The suspenders deny that the magistrates of this burgh have 
been in use to exercise the jurisdiction in question ; but even if 
they had, such usage could not relevantly be pleaded in opposition 
to the enactment of a public statute. 

All poindings were, by the act of sederunt 1754, to be reported 
to the Sheriff. The bankrupt act so far altered this provision, as 
to make the reporting of the poinding competent to * other judges 

* ordinary.' But a just construction of the statute will limit the 
jurisdiction thus extended to these ' other judges,' to cases of poind- 
ing that may issue on their own warrant, while the Sheriff is com- 
petent to all poindings, and exclusively competent where the dili- 
gence proceeds upon the warrant of the Supreme Court, or upop 
signet letters. 

. Pleaded for the respondent — That the bui^h of Hawick is one of Responjknt't 
those which, before the jurisdiction act, had been made independent ^^^^ 
of the superior, is established by the case of Graham, 27 Feb. 1805, 
iL App. Juris. No. 15« See also ErsL i, 2, 15, and i, 4, 20, and 
80; Magpstrates of Paisley and J. Adam, 80 Nov. 1790, M. 7687. 
According to the statement of the town-clerk of the burgh of Ha- 
wick, ^ the magistrates, from time immemorial, have exercised a ju- 

< risdiction in civil causes to an unlimited extent, and in criminal 
^ matters they have exercised a jurisdiction equal in extent to that 

< exercised by the magi9trates of royal burghs. Homings passed 

* upon their decrees previous to the abolition of the inferior court 
' records : homings siso passed up<^n their decrees of registration. 

* They grant warrants meditatione fugse ; and warrants of sale in 

* poindings are reported to them by messengers and others. In 
' gmeral, they act as judges ordinary within the limits of the 
' burgh.' 

Upon resuming consideration of the case, the Lord Jmtic^Ckrk Opinion of 
observed — Attending to the decisions referred to by the respondent, ^"'^ 
I am bound to hold that tl^is burgh was independent of the supe- 
rior. Here the jmagistrates are in use to grant authority to poind; 
and it would be most extraordinary if they were not to be held judges 
erdinary, in the sense of the bankrupt act» with respect to the ul- 
terior proceedings necessary to carry thfit warrant into effect. 



16 DECISIONS OP THE No. 4- 

16 Nov. 18SI. The other Judges having oonearred, the Court refined the re- 
^T^^^l claiming note, with expenses* 

W. & A* Scott 

V. Aiidifew OIU Lord Mackenzie, Ordinary. For the Soipender, RuAerfia^ Cfrmham BeO. 

^*''' WilUam Dimeanjmhr, Agent. For the RMpondent, Detm e/Fae. fHepe,J 

Judgment* Wiltm. John Paiktmjtmkr, W. & AgMit. T. Clerk. 



SECOND DIVISION. 

§ 

No. V. 17 November 1881. 

DICK offaifui TAYLOR'S TRUSTEES^ 

AND 

TAYLOR'S TRUSTEES offoina the Executors of the 

Duke of Queensbebrt. 

Warrandice. — Tack. — A. held a lease of a firm to himsdfj his 
asstffnees and sybtenantSj to endure fir nineteen years; a retbtction 
of this lease was raised by the heir of entail^ who succeeded the granter 
in the possession of t/ie lands ; after Hie summons of reduction was 

' raised, and during the dependence of the actionj A, granted a sub^ 
tack to B.y to endure for nine years, but with a quaUfied clause of 
warrandice, that in tiie event of the action of reduction prooing suc^ 
cessfidj the granter of the subtack should be bound only during ike 
validity of the principal lease ; but that, in such event, the damages 
that might be recovered from the personal representatives of the 
granter of (he lease should be proportionally appropriated to the be^ 
hoof of the subtenant effeiring to his possession : The action of re- 
duction proved successful, and decree of removing was pronounced* 
against Ae tenant one yectr before tiu natural expiry (f the sublease 
foundfinanactionatAeinstanceof the subtenant against the princi^ 
paltenant, that he was entitled to recover from Ae latter whatever loss 
and damage he could instruct, in consequence of having been deprived 
(f the possession of his subtack for one year ; and, in an action at 
the instance of the prindpal tenant against the representatives of the 
granter of the lease, that they were bound to relieve him of the da^ 
mage found due to the subtenant in the other action. 

The trustees of John Taylor obtained, in 1810, a lease to them- 
selves, their assignees and subtenants^, of the farm of. Castle of 



No. 5. COURT OF SESSION. 17 

Sanquhar, from tlie late Duke of Queensberry. The tadc was to ^7 Nov. isai. 
endnre for nineteen years, and contained a clause of absolute war- ^/^^^^^ 
randice against the grantor. In 1813, the Duke of Buccleugh? lor's Trustees, 
who sacceeded to the Duke of Queensberry, as heir of entail, in and Taylor** 
these lands, commenced his actions of reduction of all the leases Executors t>f 
which had been granted by his predecessor. In 1814, the Trustees ^^ ^^^^ of 
of John Taylor, acting under a family arrangement, granted a sub- "**"* ^^^^' 
lease of the &rm of Castle of Sanquhar, at a considerable advance 
of rent, to Robert Taylor, (the son of their constituent,) to com- 
mence from Whitsunday 1814, and to endure for nine years there- 
after. By the missiye of this sublease the warrandice was limit- 
ed by the following declaration, viz. ^ that if the Duke of Buc- 

* deugh and Queensberry shall succeed in reducing the original 

* lease, we and the other trustees are bound only during the vali- 

* dity of said lease. But in such event, the damages which may 
< be recovered from the Executors of the late Duke of Queensberry 
( shall be proportionally appr^riated to your behoof, effeiring to 

* your possession.' With regard to the stocking then on the farm, 
it was provided, that the subtenant should take it at a valuation, 
which value he was to redeliver to his authors at the expiry of 
his lease, they giving him value for any^surplus value, if it should so 
happen to exist at the time of the redelivery. 

The Duke of Bucdeugh was successful in his actions of reduc- 
Ikm, and decree of removing, as at Whitsunday 1822, was finally 
pronooneed against all the tenants. 

Actions of damages were accordingly raised by all the tenants 
against the Executors of the late Duke of Queensberry upon the 
warrandice in their leases, and, amongst others, by the Trustees of 
John Taylor. The rule by which the damages were assessed in 
all these cases was, where the lands were let to a subtenant, to take 
Ae difference between the principal rent and the subrent for each 
year's loss ; and when the lands remained in the occupation of the 
principal tenant, to allow him a claim also, in name of tenants' pro- 
fit, efeiring to the real worth of the produce of the land, (see 4 
Murray^ Jury Cowt, Hep, p. 18>) besides all other contingent da^ 
tnag^ which the tenants suffered by the claims on the part of land-' 
hnrd for violent profits, &c. The Trustees of John Taylor accord- 
ingly stated their claim of damages for the loss of the lease of the 
Castle of Sanqobar, from Whitsunday 1822 to 1823, at the surplus 
of the subrent payable by Robert Taylor to them over the original 
rent payable by them to the landlord, and for each subsequent year 
of their lease at the difference between the rent payable by them 
and the real value of Uie land, including tenants' profits. And they 
accordingly obtained decree for these sums, as well as for the vio-^ 

VOL. VII. :B 



18 DECISIONS OF THE No. 5. 

J7 Not. 1831. lent proBts which might be found doe to the landlord, and a reseiu 
.^^V*^ ration < of their claim of relief for whatever sums might be found 

lor's Trustew * ^^® ^ *^®^' Subtenants.' 

and Taylor's Dick, who was the trustec for the creditors, and assignee to the 
Executors of ^^^blease of Robert Taylor, brought an action against the trustees 
the Duke of of John Taylor, upon the clause of warrandice in the subtack grant- 
rry. ^ ^ ^^ them, for a share of the damages which they might recover 
from the Queensberry Executors, effeiring to the year from Whit- 
sunday 1822 to 1823, during which he had been deprived of pos- 
-tession under the subtack ; and also for compensation of the loss 
which he had suffered, by being obliged to dispose of his stock in 
1822 instead of 1823, when, he alleged, that prices were more fii^ 
vourable* 

The Trustees of John Taylor resisted these demands, on the 
ground, that their warrandice of the endurance of the sublease was 
limited to the subsistence of the original tack, in the action of reduo^ 
tion brought by the Duke of Buccleugh, and that their liability 
ceased when the decree of removing was pronounced against them 
in that action : That, therefore, there could be no claim for aily loss 
arbing from the sale of stock in 1822 instead of 1823, because 
the decree in the action of reduction of the original lease brought 
the sublease to its proper termination : And that, with regard to 
the claim for a proportion of the damages recovered from the Queens- 
berry Executors for the crop of 1822 to 1823, the defenders had 
only recovered, for that year, the difference between the subrent 
and the original rent payable by them, and nothing in the name of 
tenant's profits which could be due to the subtenant The subte- 
nant having no right of action against the representatives of the 
granter of the original lease *, could have no claim to recover any 
thing from them. 

The Lord Ordinary sustained the defences, and explained his 
views in the following note : 

* 2 March 1829. — The Lord Ordinary has advised this case. 
< It is distinctly proved, that the lease of the Castle of Sanquhar 
^ was held by John Taylor, fiEither of Robert Taylor, in whose right 

< the pursuer Mr Dick claims. John Taylor held various other 

< leases, and conveyed the whole of his property to the defenders^ 
' as trustees for behoof of his family ; with directions to them how 
* to act in the division of his estate, but at the same time vesting 
^ them with discretionary powers in the exercise of their functions* 



• Before thU cause was advised in the Inner-House, the judgment in the case of 
Maxwell against the Executors of the Buke of Queensbenry, 1 1 July 18^7, had b«ea: 
reversed. ... 



No. 5. COURT OF SESSION. IS 

* They, at Robert Taylor's desire, sublet to him the form of San- 17 Kov. la^l. 
« quhar at a rent of L.I80 yearly, and he accepted of it in full of 

* all that he could demand of his father's means and estate. In the i^r^*. Trust Jea, 

* sublease to him, which was for nine years after Whitsunday 1814, and Tayior*s . 

* they expressly stipulated, * That if the Duke of Buccleugh and Execmorsof * 
<< Queensberry shall succeed in reducing the original lease, that W6 the Duke of 
** and the other trustees are bound only during the validity of said **"^"' ^^^y* 
" lease, but in such event the damages that may be recovered from the 

*^ Elxectttors of the late Duke of Queensberry shall be proportion- 
^ ally appropriated to your behoof effeiring to your possession.* 
^ The Didse of Buccleugh having prevailed in setting aside the lease, 
^ the subtenant was removed in 1822, a year before the sublease 
' expired in its natural course. It is thus clear that no claim of ' 
« warrandice could arise from the reduction of the lease against the 

* defenders, for it was expressly declared, that they were bound on- 
« ly during the validity of the lease ; but in addition to this, the 
^ Lord Ordinary thinks it highly questionable, whether, although 

* no such declaration had been made by the defenders, they would 
' have been liable in absolute warrandice, unless they had positive- 

< ly given it. The sublease was not given as in an ordinary trans- 

* action between man and man. It was given by the defenders as 

< trustees in distributing a succession, and accepted by Robert Tay- 

< lor as his share thereof, and therefore could not be meant to be 

* absolutely warranted to him by his trustees, but to be granted tan- 

* turn et tale as it stood. With respect to the pursuer, it is equal- 

* ly cleat that he is placed identically in the same situation with, and 

< no other than that in which Robert Taylor stood. He is identified 

* in the transaction, by having been a party in the sublease to Ro- 
' bert Taylor, and a cautioner for him for the rent ; and as it was 

* a part of the bargain, that the right to the sublease should be as- 
^ signed to him, so he accepted the assignment, under all the con- 

< ditions and qualities that were inserted in that sublease. 

* It being then indisputable, that the defenders were not bound 

* for a minute after their original lease was set aside, and cohse- 
' quently not liable for damages for the reduction of that lease, ex- 

< cept in so far as they agreed to communicate a share of what might 
^ be recovered, the only question is, what is the meaning of the sti- 

* polation, that ' the damages that may be recovered from the Exe- 
<* eutors of the late Duke of Queensberry shall be proportionally 
*< appropriated to your behoof effeiring to your possession.' 

' The Lord Ordinary's idea is this : That the parties had in con- 
^ templation that the defenders would recover from the Executors 

* damages in name of tenants' profits, over and above their subrent ; 

* and thatlhey would communicate these profits to Robert Taylor 

b2 



20 



DECISIONS OF THE 



No, 5. 



17 NoY. 1831. 



Dick V. Tay- 
lor *s Trustees, 
and Taylor's 
Trustees v. The 
Executors of 
the Duke of 
Queenfeberry. 



for all the years during which he might be deprived of posses- 
sion under his lease. He was to get a proportion of these da- 
mages effeiring to his possession ; meaning the time that he might 
be deprived of it. There seems no other interpretation consis- 
tent with good sense ; for the defenders never can be supposed to 
have meant that they were to pay him the surplus subrent, if they 
got no more to themselves, as that in hct would be depriving 
themselves of any damage arising from the reduction of the origi- 
nal lease. The damage, therefore, that was to be appropriated 
for Robert Taylor's behoof must have been tenants' profits, ex- 
pected to be recovered over and above the subrent ; and as it is 
not disputed, that they did not get any other damage than the 
surplus rent from the Executors of the late Duke of Queensberry, 
and indeed could not get more for the year from 1822 to 1838, 
as the surplus subrent was all they lost, it appears quite clear to 
the Lord Ordinary, that the defenders are not liable to the pur- 
suer for any part thereof. If the pursuer shall say that the clause 
in his sublease, relative to damages, entitles him to recover da- 
mages from these executors, he may try the question with them, 
but in the present action with the defenders he can recover none. 

< With regard to the pursuer's claim, on account of his being ob- 
liged to part with his stock and cattle and implements of husban- 
dry in the year 1822, instead of the year 1828, the Lord Ordi- 
nary considers it to be so untenable that he is surprised at its be- 
ing advanced. 

< In the first place, by the sublease, no person can doubt tHat he 
was bound to deliver to the defenders all these commodities at the 
expiry of his sublease. The words of it wont bear another con- 
struction than actual redelivery of them ; and as the expiry of 
his lease was the period of the expiry, or rather the reduction of 
the original lease, which happened in 1822, it is evident that he 
was bound to deliver the whole in that year, and could not retain 
them, unless with consent of the defenders, till the year 1823. 
It is then impossible that he can claim damages from the defend- 
ers, for his being obliged to implement his obligation to them in 
1822. 

< 2dly, Even in the cases where the tenants brought the ques- 
tion of damages arising from the reduction of their leases to trial 
by jury, which was done in many instances, no damage was ever 
given on account of loss by an alleged premature sale of stocking. 
It was claimed in every case, but was refused, and most justly ; 
for no one can tell what the stock might have been in a year af- 
ter it was sold, in what condition it might have been, or what 
4he. demand for it, the prices at the time, or what losses upon it 
might have occurred in the course of the year.' 



No. 5. COURT OF SESSION. 21 

The pursuer reclaimed — And the Court was of opinion, that under 17 Nov. 183I. 
the terms of the sublease, he was. entitled to recover from the de- ^^^/"^^ 
fenders the loss which he had sustained by losing possession of the | Jf^ Trustees 
fiiim for the crop 1822 to 1823, which, on the other hand, they and Taylor's 
would be entitled to recover, under the reservation above mention- TbeE^utort 
ed, from the Executors of the Duke of Queensberry. The cause of the Duke of 
was accordingly taken up, along with that at the instance of the ^"^"'^T* 
Trustees of John Taylor against the Queensberry Executors, with 
which the Lord Ordinary made a\dsandum as to this point, and 
the following interlocutors were pronounced in each cause respec- 
tively. L Interlocutor in causa Dick against Taylor's Trustees : Judgmeat. 

* The Lords having advised the cause, and heard counsel for the 
^ parties, recall the interlocutor of Lord Cringletie, submitted to 
^ review : Find, that in virtue of the absolute warrandice contained in 
^ the principal tack in favour of the defenders, and the unlimited 

* power conferred on them to assign and subset, and also in virtue 

< ai the obligation in the original sablease in favour of Robert Tay- 

< lor, the right to which was acquired by the pursuer, the pursuer is 
' entitled to recover from the defenders, as trustees of the late John 

< Taylor, whatever loss and damage he can instruct he has sustained, 

< as subtenant of the farm of Castle of Sanquhar, in consequence of 

< his removal therefrom at Whitsunday 1822, one year before the 

* expiry of his subtack, over and above the subrent and other casual- 

< ties and prestations payable by him under his sublease; and quoad 

< ultra, remit the cause to Lord FuUerton, Ordinary, to proceed 

* therein as accords, reserving to his Lordship to decide all ques- 

* tions of expenses, and decern.' 

IL Interlocutor in causa Taylor's Trustees against the Execu- 
tors of the Duke of Queensberry : < The Lords having advised the 
cause, and heard counsel for the parlies, find, that the Executors 
of the Duke of Queensberry, defenders, are bound to relieve the 
Trustees of John Taylor, pursuer!, of the damages sustained by 
Dick their subtenant, in consequence of his being deprived of the 
possession under his sublease of the farm of Castle of Sanquhar 
for the year from Whitsunday 1622 to Whitsunday 1828, re- 
serving all objections to the expenses incurred by the procedure 
at the instance of either party, in the questions between the Trus- 
tees and the subtenant, and the procedure relative thereto; and re- 
mit to Lord FuUerton, Ordinary, to proceed accordingly, and decern .' 



Lord Ordinary CVnyM#. Ad. {tor Dick,) Whighimu AU. (for Taylor'g Trui- 
tees,} OrahamJM, (For QuMntbcrry Executors,) J. J, MurraUf and C«iy* 

John Forrester, Thomas Banken, and J, Lamont ff Newton, AgenU, F. Clerk. 

u. 



22 DECISIONS OF THE No. 6. 



SECOND DIVISION. 

No. VI. 18 November 1881. 

MAGISTRATES of EDINBURGH 

offainst 
OFFICERS OF STATE. 

Jurisdiction. — Consuetude.— Stat. 1681, c. 16. — AjurUdu> 
tion of Admiralty^ ffranted prior to the act I68I9 and uninterruptedly 
exercised to the present time^ sustained, 

James VI. by a charter dated 3 April 1616, granted to the Magu^ 
trates and Council of Exiinburgh a right of admiralty jurisdiction in 
the following terms : ^ Igitur nos fecimus, constituimus et ordi- 
^ navimus Prsepositum, Balivos et Consules burgi de Edin. eorum- 
^ que deputatos, presentes et futuros eligend., judices omnibus nau- 
^ tis, magistris ac navigatoribus frequentantibus, vel qui ad dictam 
^ villam de Leith, tempore a futuro frequentari contingerent, tarn 
^ nostris subditis quam peregrinis de quacunque patria vel natione^ 

< in omnibus maritimis (lie seyfaring) aliisque actionibus, et causis 
^ quibuscunque prosequendis,' &c. 

This grant was specially confirmed by a charter of King Charles I, 
dated 23 October 1626, in these words :— -' Una cum carta oon« 

* cessa per dictum quondam nostrum charissimum patrem, sub suo 
' magno sigillo, dictis Prseposito, Balivis, Consulibus et communis 

* tati dicti nostri burgi de Edinburgh, de jurisdictione portus et lie 
^ harborie de Leith, facien. et constituen. ipsos judices inter naucle- 

< ros, magistres et nautas in Leith, et omnes alios naucleros, magis^ 
^ tros et navigatores, tarn subditos nostros, quam extraneos existen. 

< cum ipsorum navibus et cimbis lie barkis pro tempore^ infra dio^ 
^ tarn villam de Leith, et portum ejusdem, in omnibus maritimis ac^ 
^ tiouibus et causis, lie seafairing causes, et aliis causis quibuscun^ 

< que, cum potestate ipsis, acta et statuta fSsu^iendi, pro incremento 
*' navigationis infra dictam villam de Leith.' 

And a statute of King Charles II, bearing date 22 March 1661, 
contains the following ratification of this right of jurisdiction : 
^ Likewise a charter granted by our late dear father under his great 
' seal, to the Provost, Bailies, Council and community of our said 

* town of Edinburgh, of the jurisdiction of tlie port and harbour, 

* making and constituting them judges between owners, masters of 
^ ships, and mariners in Leith, and all other owners, masters and 



r 



No. 6. COURT OF SESSION. 23 

^ sailors, as well our ain subjects as foreigners, with their ships, 18 Nov. 1831. 
*4)ark8, and boats within the said port and town of Leith, for the ^*^V^^ 

< time, in all maritime affid rs and actions, and other causes whatso- ^^f^u^^T ""^ 

* ever, with a power to make acts and statutes for the benefit of Officers ut' 

* navigation, within the said village of Leith/ ^^' 

Doubts having been raised in regard to the existing rights of the 
Magistrates under these grants, they brought a declarator to have 
it found and declared, < that the pursuers, in virtue of the foresaid 

< darter from the Crown, and other grants ratified in Parliament, 

< and of the immemorial exercise of the rights of admiralty juris-* 
(^fiction following thereon as aforesaid, have undoubted right to 

< exercise and enjoy this jurisdiction as heretofore, not only by means 
' of an Admiral-depute of Leith, and one or more Admirals-substitute 

* there appointed for that purpose, and as in no respect affected or 

< done away by the act 1681, c* 16, but that the pursuers are Uke- 

* wise entitled to exercise their admiralty jurisdiction aforesaid at 
' Edinburgh, by means of one or more of the Bailies of the said city 

* of Edinburgh acting as Admiral-depute, in the same manner, and 

* to the same efiect, as the said Bailies have hitherto been in the 

< use to exercise the same/ 

« 

In support of this action it was pleaded for the pursuers — 1. The Punuen' 
act 1681 was passed, not for the purpose of abolishing inferior ^^ 
admiralty jurisdictions flonang direcdy from the Crown, but solely, 
as the preamble bears, ^ for clearing and establishing the jurisdic-^ 

< tion of the High Admiral,' in reference to the claims of the Jus-t 
ticiary to a concurrent jurisdiction in cases of piracy; Articles of 
Union, art 19 ; JETione, i. 479, and ii. 35, 2d ed. ; Bank. iv. 12, 2 ; 
Ersk. I 3, 35 ; Stat 1685, c. 40 ; 1689, c. 4 ; 1 Geo. I. c. 50 ; 
1 ffUHam IV. c. 69; 4th Report of Parliamentary Commissioners for 
inquiring into Courts of justice in Scotland^ pp. 53 and 56, sect. 4. Such 
being the plain intention of the act, no general expression contain- 
ed in it can be justly construed to import an object so very different 
as that of extinguishing all inferio]^ jurisdictions of Admiralty which 
did not flow from the High Admiral himself. But, in truth, the 
prohibition to * dl other judges to meddle with the decision of any 
^ of the said causes in the first instance, except the Great Admiral 
^ and his deputes allenarly/ can create no di£Bculty, when it is re- 
membered, that formerly the Judge of the High Court of Admiralty 
was himself a mere depute of the Great Admiral, and that it is on- 
ly of late years that he came to hold a commission from the Crown \ 
Ersk. i. 3,. 33.. Besides, the second branch of the statute is at va- 
riance with the construction alluded to ; for it ' declares, that tliQ 

* High Court of Admiralty is a Supreme Court, and that tlie de- 



24 



DECISIONS OF THE 



No. «. 



Magistrates of 
Edinburgh v. 
Officers of 
State. 

Pursuers* 
Fleas. 



18 Kov. lasi. < ereets and acts of all other inferior Courts of Admiralty are siib- 
^ ject to the review and reduction of the said High Court of Ad- 
^ miraitjr/ 

II. The pursuers having, without interruption or objection, ej^er-" 
cised the jurisdiction in question from tlie year 1616 down to the 
present day, and the exercise of it having been recognised and sanc- 
tioned in numerous instances and various ways, both by the High 
Court of Admiralty and the Court of Session, it is impossible that 
its legality can be now challenged, supposii^ the terms of tho 
statute 1681 were of doubtful import, or even decidedly opposed 
to the pursuers' construction ; Craig v. Jamiesons, 5 March 177:2,' 
M. 7518; Munro v. Magistrates of Edinburgh, 20 Feb. 1781, M. 
7629, also Hailes^ Report, 884 ; Bruce and others v. Sandemaii^ 
16 May 1827, in House of Lords, 1830, WiUm and Shaw; 
SttttTy i. 1, 16 ; Bank. i. 1, 60 ; BrsL Princ. u 1, 16, and InM» u 
1. 45 ; Prior of St. Bathan's v. Carmichael, 16 June 1626, Durie, 
M. 3102 ; Dickson v. Scott, 7 March 1632^ Durie^ M. 3102 ; 
Crawford v. Oliphant, March 1685, Jf. 3103 ; Mag^istrates of Pats' 
ley and Adam, 30 Nov. 1790, M. 7687 ; Innes v. Innes, 8 Dec. 

1622, Durie, M. 3100 ; Innes t;. Grant, 7 Dec. 1622, and 12 Febi 

1623, Fol Die. M. 3101 ; Blair v. Incorporation of Mary's Cha- 
pel, July 1730, Fol Die. M. 3099 ; Dowie v. Douglas, 80 May 
1817. 

Tlie right in question has been also specially recognised and sanc- 
tioned by various British statutes ; 28 Geo. III. c. 58, § 23 ; 30 
Geo. III. c. 44, § 16 ; 47 Geo. III. c 3, § 24. 



Defenders' 
Pleas. 



For the defenders it was pleaded — L The jurisdiction chimed 
by the pursuers is plainly inconsistent with the leading clause of 
the act 1681, which declares, that ^ the High Admifal hatli the soU 

< privilege and jurisdiction in all maritime and seafaring causes, Uh' 

< reign and domestic, whether civil or criminal, whateoever, within 

< this realm, and over all persons as they are concerned in the same ; 

* and prohibits and discharges all other Judges to meddle with the 

< decision of any of tJie said causes, in the first instance, exoept the 

< Great Admiral and his deputes allenarly.' Here is an unquali- 
fied declaration, that the H%fa Admiral has the sole jurisdictiDD in 
all maritime causes, and an equally absolute prohibition to all Judges 
against meddling with the same, except the Admiral and his de^ 
putes. But according to the pursuers' interpretation of the subae*" 
quent clause, declaring that the decreets and acts * of all other in-? 

* ferior courts of Admiralty' are suhject to the review <rf the High 
Court of Admiralty, the Admiral and his deputes have not jthis ex-* 



No. 6. COURT OF SESSION. 26 

douve jurisdiction, and all other Judges are not the parties against is Nov. lasi. 
whom this prdkibition is directed. Wy«i^ 

The pursuers' theory, with regard to the object of the Legishitare, ^^^by^ v, 
rests npon a mere assumption of &ct» which is not set forth in the officers of 
slatate itself. Not only is the Court of Justiciary not once mention- 
ed in the statute, but it ascertains as well the civil as the criminal 
jurisdiction of the Admiral ; and, in so m^y words, declares his 
jorisdictioa to be exclusive, not of the Court of Justiciary, or of any 
particular Court, but of ^ all other Judges.' Indeed, even if the pur<* 
poae of settling the controversy between the Admiral and the Court 
of Justiciary had been set forth in the preamble of the statute, it 
would not support the pursuers' interpretation of the Leading dausoir 
upon which the defenders found ; it being a settled rule, that the 
preamble cannot control the enacting part of a statute, the terms of 
which are dear and unambiguous; Lees v. Summergill, 17 Fes* 
jun* 508 ; Crespigney v. Wittenvom and another^ 4 Temu Jhp. 
790 ; Rex v. Pierce, 3 Maule and Selwyny 62. 

But according to the plain and obvious interpretation of the se- 
cond clause, the statute is not contradictory, for ^ the inferior 
^ csourtB of Admiralty' there mentioned are no other than the Courts 
of the Admiral-deputes, mentioned in the first and leading clause* 
Such, aooordingly, is the interpretatien which the statute has uniform^; 
ly received ; Stair^ ii. 2, 5, and iv. 1, 5 ; ErJu i. 3, 39 ; Hume ii. 
85 ; Munro o. Magistrates of Edinburgh, 20 Feb. 1781, M. 7529 ; 
Mn^trates of Rotbsay v. Officers of State, 22 June 1620 ; Cal- 
derwood and others, 26 May 1823, in Court of Justiciary. 

II. With regard to the plea of usage. In the first place, it is cer- 
tain that no custom or usage, however general, can be pleaded, in 
Imposition to a statute which, like the act 1681, is confessedly not 
in desuetude, nor has been repealed ; Case of Bothsay, ut supra ; 
Houston's Tutors o. Lord Ross, 15 July 1708, Forbes^ M. 3107 ; 
Murray v. Thonumi, 15 Dec. 1824. But, in the second phice^ 
there is nothing here alleged of the nature of a general or univer- 
sal custom in opposition to the statute. There is merely the prac- 
tice of a particular burgh ; and it is absurd to contend that such 
local usage shall be supported, contrary to a statute admitted to be 
la foree, and applicable to the whole kingdom. 

Jjord CringUHe. — The pursuers say, that it was on account of the Opinion of 
Court of Justidary claiming a ocmcurrent jurisdiction with the Adrai* ^"'^ 
ral that the act 1681 was> passed, but they needed not have restricted 
themselves to the Justidary Court alone, for although the act 1609, 
e. 15, gives to die Admiralty the diaracter of a sovereign Court, 
yet Mr Erskine, i. 3, 33, mentions, that of old, the jurisdiction of 



28 DECISIONS OF THE No. 61 

18 Nov. 1831. the Admiralty was cumulative with this Court ; and Lord Karnes^ 
^^y^^ in his Law Tracts, L 327, mentions the same, and adds, ^ One 
^^hu^vf ^ P®<^liarity, indeed^ there was in this cumulative jurisdiodon, that 
offioere of < when a maritime cause was brought before the Session in the first 
^' ^ instance, the Judge of the Admiralty Court took his place among 

Opinion of < the Lords of Session, and voted with them ;' Lord Bothwell 
^"""^ V. Flemings, 9 March 1543. The statute 1681 was therefore in- 

tended to remove the interference of the Court of Session, as well 
as that of the Justiciary, with the Admiral* But it could not enter 
into the mind of the Legislature,, that there could be any interference 
with that Judge by the subordinate maritime jurisdicdons ; and ao-^ 
cordingly he is expressly set over them by the stat 1681, decla-* 
ring that he has the power of reviewing the decrees of the inferior 
courts of Admiralty. 

In my opinion the rule, quod optima legum interpres est consue- 
tude^ applies in this case in the strongest manner. When such a per- . 
emptory statute as the act 1681 was passed, vindicating the rights 
and privileges of the High Court of Admiralty, it is impossible to be- 
lieve that the maritime jurisdiction of the Magistrates of Edinburgh 
would have been allowed to subsist While the cumulative powers 
of this Court were instantly put down, the jurisdiction of the Magis- 
trates would have been also challenged, instead of which it has 
peaceably remained, and has been exercised not only without chal* 
lenge, but has been recognised in every way by the Judges of this 
Court, acts of the Legblature, and reports of Parliamentary Com- 
missioners, all detailed in these pleadings. I may, however, refer to 
48 Qto.IIL c.58j and 47 Gea.IILc, 3, §34. Tlie case of Munro 
is incorrectly stated by the defenders. The express contrary of 
what is stated by them was there pleaded, and most properly ; for, in 
war, particular instructions are given by the Admiralty and Govern- 
ment relative to the condemnation of prizes, as is aUuded to in 
Mttnro's case ; and it is impossible to think that the Government 
should send instructions to such a petty court as that of the Admi& 
ralty claimed by the Magistrates of Edinburgh. The Admiralty 
powers of this last-mentioned court are, however, recognised by 
the pursuer in the ease of Munro. 

In so far as respects usi^e, I must think that no usage can be 
set up in express contradiction to a statute ; and therefore, if there 
had been no words in the act 1681 to admit construction or inter- 
pretation of the meaning of the statute, I would have thought that 
the usage was of no importance, and £alls under the rule, quod tna- 
lus usus abolendus est But the use to which I apply the custom 
is to expbdn what the true meaning of the statute was understood 
to be, and 1 cannot believe that if it had been intended to put dowQ 



No. 6. COURT OF SESSION. 27 

the juriadiction in question^ the Judge of the High Court (for at i8 Not. 18Sf. 
that time the emolument arose from sentence money,) the clerks and ^v^^ 
the procurators would have suffered the exercise of a jurisdiction so ^aklbaivh ^ 
immediately under their eyes to have subsisted for one hour« Officers of 

As to the right of holding courts in Edinburgh as well as Leith, ^ ^^' 
I have doubt that it may be exercised in Edinburgh, or that it was Opiiiioii of 
given to the Magistrates of Edinburgh by their charter. Custom ^""^ 
should again come in here to explain the charter ; and as they have 
held courts at Leith for the general accommodation of seafaring peo-> 
pie belonging to or connected with that port, they should not be al« 
lowed to hold courts any where else. Besides, the words of their 
charter, I think, limit them to the exercise of the maritime juris-^ 
diction at Leith. The charter makes them judges between ail 
owners, masters and mariners, whether subjects or foreigpers, with-* 
in the said port and town of Leith, * in all maritime affairs and 
* actiansj with a power to make acts and statutes for the benefit ofna» 
< viffotian within the said mUage of LeithJ There can be no naviga** 
tion within the village, and, therefore, the acts and statutes are to be 
made within it, and the causes to be judged there. 

It is said that the jurisdiction claimed is not specifically stated 
in the summons ; but, in my c^inion, it is special enough. It is as 
special as the terms of their charter, which is constituting them 
judges in all maritime or seafaring causes. It is impossible to be 
more specific, for all such causes cannot be enumerated or fisuicied* 
It is only the exception that can be judged of when it occurs. The 
exercise of maritime jurisdiction in Edinburgh is expressly denied } 
and were the charter sufficient to constitute the jurisdiction, it would 
be of little consequence whetiier they had done so or not, for they 
were entitied to begin at any time. But I think the true meaning 
of the charter of Charles II, is, that the jurisdiction is to be exer«» 
dsed in Leith ; and as there can be no prescription without a titie, 
I think it is of no consequence whether the jurisdiction had been 
exercised in Edinburgh or not If it was, it was without titie, and 
ought to cease. 

Lord Glenke. — The act 1681 appears, by its own terms, intend- 
ed to confirm and to carry into effect the very short act of James I, 
there referred to, along with some additional regulations. But there 
is nothing in the whole tenor of that statute which imports the abo«« 
lition of all inferior judicatories, which, if intended, might have 
been very easily said ; but no declaration to this effect is to be found 
from beginning to end of the statute. 

The right of admiralty claimed in the case of Rothsay was 
founded on a very ancient grant, and for mcHre than 100 years the 
grantees had never exercised any jurisdiction at all. And what ap- 



28 



DECISIONS OF THE 



Na6, 



Sute. 

Opinion of 

Court. 



18 Not. 1831. pears to me to have been said by the Court in that ease was, that 

^^^V^*^ the attempt to resume the jurisdiction, after so long an interval, was 

Tsl^bwAv! ^^g^^^ ^^® general policy of the act 1681, which is avery different 

Officers of thing from saying, that such a jurisdiction as is alleged to have been 

exercised by the Magistrates of Eldinburgh was abolished by this 

statute. 

As to the precise manner in which the jorisdicdon has been 
ezerdsed by die bailies, I should like to see better how the fiicts 
stand ; for if I saw a constant use in Edinburgh as well as Leith^ 
I would not go so fiur as to say diat such usage was excluded by 
the charter — for as to the act 1681, 1 hare ahready said that it ha» 
nothing to do with the matter. Perhaps it would be better to let 
things stand as they are, unless something very faulty in die exer- 
cise of the Jurisdicdon has occurred* But I confess I am not suffi- 
ciently prepared to give an opinion on this part of the case. 

Lord Meadowbank. — I perfecdy concur with Lord Glenlee, that 
we would require more information before we could decide the second 
point But as to the first branch of the case, if this quesdon had 
occurred immediately after the passing of the act 1681, I would 
hare considered it a quesdon of difficulty, whether this jurisdicdon 
had not been taken away by the act. But, as my brother has 
stated, consuetude is the best interpreter of all statutes ; and as 
from the dme when the act was passed to the present the ju- 
risdiction in quesdon has been exercised, I do not feel myself at 
liberty to give any other opinion, than that the statute did not mean 
to abolish this jurisdicdon. Even if I had found that the words of 
die statute were more disdnct than they are, I would have come 
to die same opinion, because I have always understood it to be the 
law of Scotland that statutes do fidl into desuetude by a contrary 
consuetude, and that this may happen even to parts of a statute o£ 
which other parts remain in force. Therefore, if I had found that 
this jurisdicdon had been even expressly taken away by the sta- 
tute, yet, as from that time the Magistrates have been in the con'* 
stant practice of exercising that jurisdicdon, I would have been for 
sustaining it. Some years ago I had pardcular occasion to con- 
sider the effect of usage in the frice of statute, when the matter was 
before Parliament It was stated that the law of England reoog«» 
nised no such principle. On that occasiim I had the benefit of con- 
sulting the late Sir Islay Campbell, who gave the opinion I now 
deliver. He stated, that it was altogether a mistake to say that a 
statute falls into desuetude, but a contrary usage imports a repeal 
of a Scotch statute. 

As to what may be the effect in regard to statutes passed since 
the Union, I give no opinion. We are considering a Scotch statute ; 



No. 6. COURT OF SESSION. 29 

and if I had found that consuetude in this case had prescribed '^ Nov. 1831. 
against the express provisions of the act 168 1, I would have been 
of opinion that the Magistrates had made out their case. As to Ed^burgh v. 
what is taken for granted in the late statute abolishing the Admiral- officers of 

ty Court, I can give no weight to it We all have too much reason _J . 

to see how very loosely these statutes are sometimes drawn up, — Opinion of 

things being taken for granted as law, which no lawyer ever dreamed 

of to be such. Therefore, on this part of the case, I simply go on the 

fiact of the consuetude for 150 years. But this does not apply to 

the second branch of the case, where the same consuetude is not 

tijade but, and regarding which a great deal more inquiry may be 

necessary. 

Lord Jrutiee^Clerlu — I agree with your Lordships in thinking we 
have not sufficient grounds for iGnding that the Magistrates have not 
a jurisdiction of some kind. Great stress is laid on the case of 
Rothsay ; but when I read you my notes in the case, which I have 
now before me, your Lordships will see, that although some of the 
Judges did rest upon the act 1681, yet that was not the ground 
of the judgment Three Judges gave it as their opinion, that the 
charter did not g^ve the jurisdiction claimed, and, therefore, that 
case can aiFord no authority for deciding this one. I hold myself 
perfectly firee to connder this question, giving all effect to the terms 
of the act, and attending to llie inveterate usage. I am of opinion, 
that the usage is the best interpreter of this clause in the act 1681, 
and that there has been such usage in the present case as must 
interpret it in fevour of the pursuers. But then comes the second 
question, whether the Magistrates are entitled to hold courts out of 
Leith ? If the Magistrates can condescend on a uniform practice 
of holding courts as much in Ekdnburgh as in Leith, that might 
do ; but, in the meantime, we have no information on that point, 
and all that we should do at present, is to fifid for the pursuers on 
the first branch of the summons, and remit the case to the Ordi- 

The Cotart^ accordingly, pronounced the following interlocut<Nr : judgment. 
^ Find, that the pursuers have a right of Admiralty jurisdiction, as 

< claimed in the summons ; but as to the mode and place of exer- 

< dsing such jurisdiction, or the limits within which it may be ex- 

< erased, remit to' the Lord Ordinary to hear parties farther, &c. 

Urd CrhgUHct Ordinary. For Punncrt, L'Aw^, JuMy» Ta»M> Bofflt^ %- 

Hmdtnm^ W. & Agents. For Def«nder% JDmm qfFaa. (Hcp^,) Sol^^Qmu 

Cockbwm^ Brown. Stodart f Frater, W. S. Agents. T. Clerk. 

s. 



3a DECISIONS OF THE No. 7. 



SECOND DIVISION. 

No. VII. 19 November 1831. 

CROWDER OR TURNLEY 

againtt 

WATSONS. 

Meditatio Fuoa. — FoRBiGK. — Aftotigner who has been brovght 
into Scotland by a criminal warranty and is detained there after 
trial against his will^ is liable to be arrededas in medUationefugtBf 
en the ground of a ddd contracted in this country by delict; and 
this although the original detention after trial was caused by an 
irregular warrant of detention obtained by the incarcerating creditor^ 

Elizabeth Crowoer^ an Englishwoman, was suspected of beings 
accessory to the robbery of the Banking House of Messrs James 
and Robert Watson, in Glasgow, in December 1830. She was 
accordingly apprehended in London by a criminal warrant, and 
was brought to trial for. the housebreaking and theft, on the Autumn 
Circuit at Glasgow, along with a person called Heath, at the in-* 
stance of the public prosecutor. The trial resulted in the convic- 
tion of Heath, who was condemned and executed, and in the ac-^ 
quittal of Crowder ; respecting whom the Jury found, < that the 

< pannel Elizabeth Crowder or Tumley, alias Allan, was in the pre- 

< yious knowledge of the theft, but had no participation therein ;* 
and the Court accordingly, in respect of this verdict, assoilzied and 
dismissed her from the bar. Almost immediately after the trial 
she was arrested on a meditatio fugae warrant at the instance of 
Messrs Watsons, who were taking steps to bring a civil action 
against her for restitution of the property stolen from them, amount* 
ing in notes and specie to the sum of L.2185. Upon considering 
the application for this warrant, and the oath emitted by one of the 
partners of the house of James and Robert Watscm, the Sheriff-sub- 
stitute refused to grant the warrant against the woman. The Sheriff- 
depute, however, altered his interlocutor, and granted the warrant 
craved. Crowder thereupon presented a bill of suspension and libe- 
ration to Lord Cringletie, as Ordinary, who, upon the 24 September 
1831, passed the bill, and granted the liberation prayed for. His 
Lordship, along with this interlocutor, intimated his opinion, that 
the application for a warrant against the oomplainer, as in medita- 
tione fugse, was well founded ; but that he had passed the bill in con- 



Ho. 7. COURT OF session; 31 

sequence of a fonnal irre^larity on the face of the oath, which was lo Not. last 
made by one of the partners of Messrs Watson, whose name did ^*"^v^*' 
not appear on the application. The Messrs Watson, in the mean- TurniA'^v!' 
time, had been advised of the irregularity of their application, and, v^atsons. 
accordingly, whilst the cause was depending before Lord Cringletie, 
and before his interlocutor passing the bill and granting liberation 
was issued, they withdrew their warrant, and, by formal letter, inti* 
mated to the jailor their consent to the liberation of the prisoner. 
They had her, however, immediately afterwards arrested, as in 
meditatione fugse, on a new warrant, on which, the petition and oath 
being quite regular, she was again committed to prison. 

Crowder now presented a second bill of suspension and liberation, Pnrsoer't 
in which she pleaded — 1st, That it was incompetent, pending pro- ^^ 
ceedings under the former warrant, to apply for a new one. Sdly, 
That the judgment of Lord Cringletie, granting the liberation up- 
on the former bill of suspension, was res judicata in her favour against 
any other warrant proceeding substantially upon the same grounds. 
3d, That the respondents were barred, personaU exceptione, from pro- 
ceeding against her by a new warrant, because, but for the deten- 
tion which she had met with by her illegal apprehension under their 
former warrant, she would not have been in Scotland at all, nor sub- 
ject to apprehension in this country at the date of the second appli- 
cation ; Archer v. Law, 18 June 1791, M. 8894; Haliburton 
V. Stewart, 21 July 1709, M. 2. 4th, That the complainer, 
being a native of England, and having been brought by oompulsioa 
from her domicil in that country, solely for the purpose of stand- 
ing her trial on a criminal charge, was entitied to return home, and, 
in so doing, cannot be considered legally as in meditatione fugse for 
the purpose of avoiding her creditors. Vid. 2 Bell^ 563, where 
the law is explained to be, that, ' where a foreigner is for a time, 
< and witiiout fraud, in this country, for a particular and temporary 

* purpose, as a journey of health, of pleasure, or of business, his 

* proper domicil being in his own country, where he is ready to^* 

* answer, there does not seem to be any good ground for authori- 

* sing this sort of warrant to be issued against him, either at the in- 

* stance of a foreigner or that of a native of Scotland, in order to 
^rnake him responsible to the courts of this country;' Bryson, 
10 March 1812. Hie complainer is in some measure in the same 
ffltoation, and entitled to tiie same protection as a person who is 
brought out of the sanctuary for tiie purpose of attending a civil or 
criminal trial as a witness, to whom the court which issues the war- 
rant of citation does, at the same time, grant a protection against 
other dilig^nuce being used against them whilst tiiey are in atten^ 



DECISIONS OF THE 



No. 7. 



ro Not. 1831. danoe on tUe trial to which they have been summoned ; 2 BeU^ 
672. 5th, The complainer is a married woman, and, therefore, is 
protected by her covertmre from liability to personal diligence for 
a civil debt, in which shape alone any action can now be raised 
against her. 6th, The oath of the respondent respecting the claim 
of debt being only an oath of credulity, founded on the hearsay of 
others, cannot be said, in any fair or legal sense, to be an bath to the 
verity and existence of a debt against the complainer. 



Crowder or 
Turnley v, 
Watsont* 

Pursuer's 
Fleas. 



Respondents* 
Fleas. 



The respondents answered — 1st, That all proceedings under the 
former warrant were dischai^ed by the respondents before they 
applied for a new one, and that, consequently, there was no lis alibi 
pendens at the time when they made the second application. 2d, 
That the judgment of the Lord Ordinary on the former suspension 
and liberation, proceeding upon a formal irregularity in the manner 
of taking the oath, could not operate as a res judicata, to prevent 
the respondents from applying for a second warrant in a more re* 
gnlar manner. 3d, The detention of the complainer under the 
former warrant cannot form any personal exception against the 
re^ondents to prevent them from applying for a new one. They 
did not make use of any trick to induce the complainer to leave a 
place of protection, and, consequently, there is no analogy between 
the present case and those of Archer v. Law, or Haliburton v. Stew* 
art The respondents may perhaps be liable to pay in a different 
maimer the penalty of having used an irregular warrant ; but the 
circumstance of having done so can be no obstacle to their enfor- 
cing a proper one after abandoning the former. 4th, The com- 
plainer, although an Englishwoman, is amenable to the Courts of 
Scotland in an action for a debt contracted in this country ; and 
her declared intention to return immediately to England in such 
circumstances, is the very diing which the law considers as a medi- 
tatio fug80. She is not in the situation of a witness brought up 
from the sanctuary to give evidence, and receiving for that purpose 
protection from tiie court in which her attendance is required, for 
she has no protection from the Court of Justiciary, and her connec- 
tion with it ended when she was dismissed from its bar. 5th, The 
marriage of the respondent is denied, or at least her alleged hus* 
band is proved, by a certificate from the Old Bailey Calendar, to 
be a convicted felon, under sentence of transportation for life, and 
the respondent, consequently, is no longer entitled to the civil pri- 
vileges of coverture. At all events, the summons which has been 
raised against the complainer concludes for the repetition of stolen 
|)roperty, said to be in her possession ; and it is none of the privi- 
leges of a married woman to refuse obedience to such a demand, if 



No. 7.. COURT OF SESSION. 33 

the libel shall be proved against her. 6th, The oath of the respon- jo Not. 1831. 
dent bears,, that the complainer < is jusdy resting oving to the de- 



< ponent and his partner in trade in the sum of L.2185, stated in ST"'^ °' 

JLtirOlGT U» 

< the patitioD)' and it is therefore, in all strictness, an oath to the watsons. 
yerity of the debt; the knowledge of the respondent, upon which ^~ — 7 , 
he has made such an avemient, beinf^ founded on circumstances pieas. 
which bring home complete qonyiction to his mind, that the com- 
plainer is in the guilty possession of the property which was stolen 

from him. 

> • 

The Court unanimously refused the bill. judgment. 

The Lord Justice-Ckrk* — In considering the merits of this bill Opinion of 
of suspension. and liberation, I shall willingly dismiss from my mind ^^^ 
all that has come to my knowledge of the previous history of this 
ease, in consequence of the proceedings in the Court of Justidary, at 
which I was present, and shall look at the grounds of the applica- 
tion on their own merits. But, in doing so, I cannot find that any 
suffident reason ha9 been offered why we should pass this bill. 
1st, As to what took place under the former warrant which was ob- , 
tained by the respondents against this woman, it is clear that the 
plea of lis alibi pendens is removed by their departure from that 
warrant, which put an end to all the proceedings under it. Then, 
as to the pretended res judicata, in consequence of Lord Cringletie^s 
interlocutor granting the liberation under the former bill, it is evi- 
dent, from his Lordship's noite, that his judgment on that bill pro- 
ceeded on a technical objection to the oath upon which the warrant 
proceeded, and not upon any of the merits of the application, whi^h 
cQuld prevent the re^ndents from amending their proceeding unr 
der a new peddcrn. I piay say here that I am not at all influenced 
by the peculiar terms of the verdict, in consequence of which thi» 
party was assoilzied in the Court of Jusdciary. I pay no regard 
to it whatever in the consideration of the question, as I think. the 
claim of debt in the civil court would be equally competent, if die 
verdict of the Jury had found this pannel not guilty, and if she had 
been dismissed from the b^ without a shade of suspicion attaching 
to her character. 3d, As to the objection that the complainer is a 
foreigner, I must take this al6ng with the allegatioii by the re- 
spondents of her former residence at Glasgow at the time when 
the housebreaking was committed. But I do not enter into the 
question of her domicil at all. I loo}c upon the claim of debt up- 
on which the summon^ is founded, and to which the respondent has 
made oath, as an obligation contracted in Scotland, and for the en*- 
forcement of which the courts of this CQuntry are undoubtedly com^ 
petent ; and I know of no authority or decision which absolutely rcr 

VOL. VII. c 



34 



DECTSIONS OF THE 



No. 7, 



Crowder or 
Turnley v. 
Watsons. 

OpiDion of 
Court. 



19 Not. 1831. quires that a debtor shall have a legal domicil in this eountiy, be- 
fore an application for a meditatio fog» warrant can be oampetent- 
ly made against him. 4th, As to the allegation that the compbiner 
is- a laarried woman^ I think both the answers made are sufficient ; 
1st, That, «ven though she were entitled to die privileges of a 
married wdman in not being liable to personal diUgence for an or- 
dinary civil debt, the present cbdm is founded on a delict, and the 
eonolnsion of the summons is for the restoration of stolen pttperty 
alleged to be in her possession ; and against such a condnsion I 
know of no privil^es of coverture which could protect her* 2dly, 
Her marriage is denied, or at least it is asserted, and strong prima 
fade evidence' is offered in support of the assertion, that, in eonse- 
quence of the transportation of her husband, she has lost the privi* 
kges attending that status, and we are therefore not entitled to re- 
fose the re^)ondents the benefit of their diligence till the fiiot be 
expiscated. Finally, The only other question whidb remains is 
that whidi is raised upon the manner in which the compklner im 
brought into and detained in this country, viz. by criminal warranty 
for the purpose of standing her trial in the Court of Justiciary. 
There is no analogy whatever between this case and that of a 
person who is brought out of the sanctuary, under the protectkm of 
a court, for the purpose of being examined as a witness. In such a 
situation an application is always made to the court which requires 
the attendance of the witness for a protection, which is granted with 
a special limitation of time, beyond which it does not extend. Any 
creditor attempting to do diligence against his debtor, in the foce 
of such a protection, would be guilly of a contempt of court; but 
the moment that the time for which the protection is granted ex- 
pires, the debtor is again liable to arrest Now, in the present 
case, the Court of Justiciary had granted no protection to the com* 
plainer against any diligence which might be used against her for 
a civil debt ; and if one had been applied for, it would certainly have 
been refused. All concern which the Court of Justiciary had with 
the Gomplainer was closed, as soon as the judgment was pronounced 
which dismissed her from the bar. Neither is there any thing in 
the plea, that the party has been detained in this country after her 
trial by an informal application. There is nothing like a case of 
fordble detention or fraud stated against the respondent. There is 
no legal objection to the oath now made, which is explidt, and 
goes to the verity of the debt. 

Lord Glenlee. — I am of the same opinion. It is no doubt true 
that the complainer was apparently brought into this country much 
against her will ; but I am surprised to see it so anxiously stated 
and set forth in her bill, that the respondents had nothing whatever 



No. 7. COURT OF SESSION. 85 

to do with her original apprehension, bat that it was brought about 19 Not. lasi, 
entirely on the ^plication of the public prosecutor. If there was ^^^^^ 
any thing in her plea, it would be entirely obviated by this circum- i^trniey v.' 
stance, and she would have at least a more plausible plea if she had Watsons. 
been originally broi^ht into Scotland by a criminal warrant ob- opinion of 
tained at the instance of the respondents, and they had then avail- Court. 
ed themselves of finding her in this country, (having first brought 
her here by their own act,) to sue out a meditatio fugsB warrant 
against her. It comas, therefore, simply to the case of a foreigner 
being found in this country, and arrested by his creditor upon a 
meditatio tfig» wanant Now, in some sueh cases there may be 
oonsidexable difficulty* As, for instance, when one foreigner applies 
for a wttraat against anodier on a debt coatracted in the foreign 
eoiintry where they both have their natural domicil, and the place of 
payment^ the q>plicati<m is plainly inconqpeteat. Or even when 
the application is made by a Scotsman against a foreigner, tran- 
riandy in this country, if the place of payment is naturally at the 
damidl of the debtor, the applicatiim will be refused* But in the 
prasent case there is no such difficulty^ for the debt here was con- 
traeted by delict in Scotland, and it is only in this country that the 
ioqpiiry oonceining its constitution can be pnqperly or practically 
made. Besides^ we cannot shut our eyes to the circumstances of 
tUa case, or look upon it as one of a foreigner returning home to 
Us own country, where he has a proper or fixed domidl, in which 
he will be responsible to his creditor before the courts of his own 
lesidence* The probability appearing from the terms of the oath, 
and the examination of the complainer, is, that this woman has no 
fixed domicil at all, but is in medilatione fuge not only from Scot- 
hind, but finom any country into which her creditors can follow her 
to recover payment of their debts. 

Lards Orwgktie and Meadoiobank concurred. 

Lonl Ordinarj, FiJkrUm, Act. Jmiiemm, RAerimm uid luorjf. Alt Dean qf 
Foe. (Hopt^J Skeatf and Petmey» C. J, F, On, and SmWt ff Kxmwar, W. S. 
Agents. F, Clerk. 

u. 



c2 



36 DECISIONS OF THE No. 8- 



FIRST DIVISION. 

No. VIII. 22 Nwember 1881. 

GEORGE BROWNLEE and Others 

affainst 
WILLIAM WADDELL and Oihers. 

Husband and Wife. — A husband and wife having executed a nm- 
tual dispogUion^ conveying^ infawmr of the survivor^ aU property^ 
heritable and maveablef which shcfuld belong to them at the period 

> of the death of the party predeceasing^ with a reservation of a right 
of liferent^ and power of alteration to each of themj and the wife 
having thereafter^ when the husband was on deathbed^ and on the 
narrative that he had expressed a wish that one half of the residue 
of his means and effects^ subject to her liferent^ should be disponed in 
favour of certain near relations of his own^ executed a deed in favour 
of these parties, in terms of the narrative^ reserving her own liferent, 
but containing no express power to alter , and having, some pears 
afterwards, executed a new settlement or trust-deed, revoking all 
former deeds,^found, in an action at the instance if the heirs of one 
qf the parties favoured by the deed bearing to be executed in fulfil- 
ment of her hudkOuF swishes, that this deed, being testamentary and 
mortis causa, was revocable sua natura, and was revoked by the 
subsequent trust-deed. 

On 22 June 1816, Mr and Mrs Denholm executed a mutual 
disposition and settlement, whereby, on tke narrative of the ioye, 
favour and affection they had for each other, they mutually dispon- 
ed to and in favour of the survivor of them, and the heirs, execu- 
tors and assignees of such survivor, all heritable and moveable pro- 
perty then belonging, or which should belong to them at the pe- 
riod of the death of the party predeceasing, with the usual obliga- 
tions to infeft, &C. The deed contained the following reservation : 

< Reserving always to each of us our liferent right of the heritable 

< and moveable subjects, and sums and others before respectively 
* disponed, during all the days of our lifetime, and full power and 

< liberty, at any time of our life, to alter these presents in whole or in 

< part, as either of us shall think fit; and we dispense with the deli* 
^ very hereof, and declare that the same, though found lying by either 

< of us at the time of our deaths or in the custody of any other per- 



No. & COURT OF SESSION/ S7 

^ son, shall be as valid and sufficient as if delivered in our own life- S2 Nov. 1831. 

* tame.' ^^\^*^ 

Thereafter (31 August 1822,) Mrs Denholm executed a deed, Sth^*^"** 
which, after narrating shortly the previous mutual disposition, pro- Waddell and 
ceeds thus: < And ferther, considering, that since the date of the said ^ ^"' 

* mutual disposition, the means and estate of the said James Den- 

* holm has considerably increased ; and he having, while in extreme 

* bodily bad health, but in sound mind, expressed a wish, that the one- 
' half of the free residue and balance of his nieans and estate, house- 

* hold furniture excepted, subject to my liferent right, and under 

* the declaration and provision after written, should be disponed 

* and made over to the persons after named, being his ' nearest rela- 

< tions, and I, being desirous to fulfil and obey the wishes of my 

* said husband in all respects, do therefore hereby, under the provision 

* and declaration after mentioned, dispone, convey and make over 

* to and in favour of Mrs Helen Mann or Pender, spouse of Tho- 

* mas Pender, comptroller of stamps, and Mrs Ann Mann or Hill, 

* spouse of James Hill, and George Brownlee, (father of the pur-^ 

* suers,) presently employed in the office of my said husband, and 

* their heirs, share and share alike, AH and whole one-half of the 

* free residue, (household furniture excepted, which is hereby re- 

* served for my own disposal,) of the means and estate of my said 

* husband, as the same shall be ascertained at my death, the same 

* being always subject to my liferent use, as before mentioned ; 

< aiid declaring also, as it is hereby specially provided and declared, 

< that in the event of its being thought advisable by the said Tho-' 

* mas Pender, and by William Waddell of his Majesty's Printing 

< Office, John Smith, spirit-dealer in Edinburgh, and Francis Wil- 

* son, writer to the signet, (whose advice I am requested by my said x 

* husband to take,) or to any two of them, to purchase a life annuity, 

< for my more comfortable subsistence, with part of the means and 

< estate of my said husband, as they may stand at his death, that I 

* shall be at perfect liberty so to do, notwithstanding these presents, 

< and that the said Helen Mann, Ann Mann and George Lees, or 

* their foresaids, shall have no right or title whatever to interfere with 
^ the purchase of the said annuity, or be entitled to any consideration 

< therefor at my death, notwithstanding the one-half of my said hus- 

< band's means and estate, above provided for them, may be thereby 

* diminished — under which declaration and provision these presents 

* are granted, and no otherwise/ 

Mr Denholm died the following day, and at the meeting after his 
funeral, the deed of 1816 was produced by Mr Francis Wilson, the 
agent of Mr and Mrs Denholm, and ordered to be recorded ; and 
he also exhibited the deed executed by Mrs Denholm in 1822; but 



S8 



DECISIONS OF THE 



No. a 



Brownleeand 
Otfaeno. 
W«ddell and 
Othen. 



S8 Nov. 1631. this < the meeting request Mr Wilson (the agent) to ke^ in his 
^ possession, for the behoof of all concerned.' Afterwards Mrs 
Denholm, as executrix and disponee under the mutual deed of 
1816, gave up an inventory of die estate, and continued to possess 
the whole property down to her death, until which period, the 
above deed executed by her remained in Mr Wilson's custody. 

In July 1828^ Mrs Denholm executed a new settlement and 
trust-deed of her whole property, including that contained in the 
deed 1822. The deed conveys the whole of Mrs Denholm's pro- 
perty, real and personal, to the present defenders, as her trustees, 
for various uses, ends and purposes, and contains a special clause^ 
revoking and recalling all deeds formerly executed by her. Mrs 
Denholm died 28 July 1829, and the defenders (the trustees named 

in the last deed) entered into the possession and administration of 
the property. 

Thereafter the pursuers, the children of Geoige Brownlee, (one 

of the parties favoured by the deed of 1822,) brought the present 

action of count and reduming against the defenders, founding upon 

the deed 1822, which, they maintained, gave them a right to a third 

share of half of the property and effects left by Mrs Denholm (ex* 

elusive of the household property) at the time of her death, and 

which she had no power to alter. 



Pursuers* 
Pleas. 



In support of the aetion the pursuers/^dM — 1. The mutual dis* 
position and conveyance, executed by Mr and Mrs D^ihoim on 22 
June 1816, was a deed revocable by both, or either of these parties, 
during the subsistence of the marriage, and was effectually innova« 
ted and altered by the deed executed by Mrs Denholm on 31 Au« 
gust 1822. 

2. The disposition and deed of conveyance, executed by Mrs 
Denholm <m 81 August 1822, was a completed^ absolute and irre- 
vocable conveyance of the property thereby conveyed) and could 
jiot be revoked, cancelled nor altered in any respect by her. Un- 
less this deed had been executed by Mrs Denholm, die presump- 
tion was, that one to the same effect would have been made by her 
husband, in whose power it clearly was to have executed such a 
deed ; for the narrative, which neither Mrs Denholm, nor any in 
her right, can dispute, set forth, that it was executed in compliance 
.with his wishes. 



Defender** 
Pleas. 



Pleaded for the defenders-*!. If the deed of 1822 could even have 
been held (as alleged by the pursuers) to constitute or import a 
personal obligation upon Mrs Denholm, in &vour of the present 
p^rsuers^ it would have been wholly null and ineffectual, that 



No. 8. 



COURT OP SESSION. 



30 



deed having been executed by Mr» Denhblfli, stente matrimonio, ^ Nov, \&SU 
aQdwidbnitdieooiiseotor eaneurrenee of her husband^ which conseiit "^v^^ 
or Mttcurreace eould only have been competently given or proved othert v. *" 
by the husband being made a party ta the deed, or at least by wri- WaddcU and 

«• J I • 1 J Others. 

ting under hia hand. ^ 

S. The deed of 1822 havii^ never been delivered by die granter, Defenden' 
ekber to tlie gvanteea, or to any pera^m for their behoof, tilmt deed ^^' 
remiiined wholly ineffectual, and cannot affect tibe gencaral convey- 
ance eoBtaiiied in the testatrix^s subsequent trust-deed in &vottr of 
the defenders. 

SL The deed of 1882 being wholly gratuitous, testamentary, or ait 
least iii.it8 nature mortis oausa, it would have been revocable by the 
tnakeiv even although it had been delivered ; and it'was validly and 
effectually reFoked by the aiier trustnlsqposition in fiivour of the de- 
fenders. 

4. If the deed of 1822^ had been of the nature aVetred by tibe pur*- 
•uers, it would have been truly and substantially a donation by Mrs 
Denhohn ia &vour of her husband, procured at his requ^t, and 
through Us iaflnenoe, and would therefore hare been revocable by 
the grantor. 

The Lord Ordinary pronounced the following interiocutor ; 

< The Lord Ordinary having considered the closed record, and 

* heard counsel for the parties, finds, that if the dispositi<m executed 
^ by Mrs Denholm in August 1622 be considered as a deed inter 

* vivos, it is not effectual, because it was not •executed by the au^ 

< diortty of her husband, nor was he a party to it $ Neither is ther^ 

* competent evidence offered that he knew or iqi^roved of the terms 

< in which it is conceived : finds, that if it be considered as a tes* 
^ tamentary or mortis causa deed, it was revocable sua natura, and 

< accordingly was revoked by Mrs Denholm's settlement in 1828: 

* Finds, that no competent evidence is offered that Mr Denholm 

< abstained from revoking the marrii^e settlement in 1816, on the 

* £Eath that Mrs Denholm's disposition in 1822 was to remain e£- 

< fectual, and that no personal exception to Mrs Denholm's power 

< of revocation has been raised, on that or any other ground : Finds, 

< that, whether the said dispotttion in 1822, be held as a deed in*- 
^ ter vivosy or <^ a testamentary nature, it is not proved to have been 

< deMvored, in respect that Francis Wilson, the custodier, was Mrs 
' Denholm's ordinary agent, and prepared it by her directions ; and 

< although it was exhibited by him to the persons who met after 

< Mr Denholm's funeral, there is no evidence offered that this was 

< done by Mrs Denholm's autlunrity, or with her consent : There- 
' fiHTo, assoihEies the defenders from the conclusions of the libel, and 

* decerns ; Finds no expenses due to either party.' 



40 



DECISIONS OF THE 



^ No. a 



Brownlee and 
Others v, 
Waddell and 
Othen. 

Opinion of 
Court. 



22 Not. 1831. This interlocutor being brought under review by a reclaiming 
note on the part of the pursuers, Liord Craigie said — I entertain 
great doubts of the interlocutor of the Lord Ordinary. By the 
mutual settlement each of the parties was authorised to make any 
alteration they might think fit The power is expressly given to 
^ either' of them. As long, therefore, as Mr Denholm, tiie hus- 
band, was in possession of his faculties, he might have withdrawn 
his name from the settiement, or he might have conveyed to his 
relations, or otiiers, his whole effects, heritable and moveable, 
with the burden of his wife's right of terce in the subjects liable to 
it, and her share of the goods in communion. It is proved by a 
deed regularly subscribed by the wife, and the truth of which is 
not disputed, that the husband, instead of exercising his powers 
in the fullest extent, proposed that the wife should, in consequence 
of his desire, give up to some of his nearest relations one*half of 
the means and estate belonging to him; she having, at the same 
time, a power, with the approbation of certain friends, to increase 
her income, by the purchase of an annuity out of the funds. This 
writing was put into the hands of the husband's man of business, 
and there it remained until the death of the widow. It would seem 
that she had called for it, for what purpose is not said ; but although 
it had been then delivered, she could not warrantably, or with pro- 
priety, have cancelleH or revoked it. The deed, in short, as it ap- 
pears to me, must be considered as the deed of the husband ; and 
being in reference to tiie previous settlement, and in pursuance of 
it, and under the direction of a respectable man of business, came 
in the place of a deed, which^ the husband had power to make in 
terms far more un&vourable to the wife ; and being truly a deed 
mortis causa, although to a certain extent obligatory on the parties, 
might have been executed by the wife, without the husband's con- 
currence. It would appear from a letter recited in the appendix, 
that the person thus referred to thought the widow might revoke 
the deed, altiiough very properly he would not give it up to her ; 
but on this point I cannot agree witii him. It has been said, that 
the wife only meant to comply with a wish of her husband when in 
a dying state. But where the husband had the power of doing the 
same thing, or more, his will was necessarily a law to her, and the 
attempt now made appears to be as improper as can well be 
imagined. In the case of a mutual settiement like this, either of 
the parties may revoke, so £bu- as the deed may import a donation 
between man and wife ; but even in such a case, it was decided, and 
most justly, in the House of Lords, in the case of Cunningham, 
20 July 1814, reversing a judgment of the Court of Session, that 
the revocation must be made in such a way, as that the other party 



No. a COURT OF SESSION. 41 

may have an opportunity also of altering the deed. In this case, S2 Not. 1831. 
so far from giving such an opportunity, the husband was allowed to 
die in the belief that what he wished was to be fulfilled. Here ouien r. 
also it may be observed, that if the nlutual settlement was to be re- Waddeil and 
voked as a donation, it could only be by the husband, the condi- ' 

tions on the whole beinir ereatly favourable to the wife. Opinion of 

fViiirt. 

Lord Balgrajf was of a** different opinion, and had no difficulty 
about the case. Whatever obligation, in point of honour, might have 
been incurred by Mrs Denholm, in virtue 4>f the deed 1822, the 
legal rights of the parties under it was a very different question ; in 
considering which it was competent only to look to the terms of 
the deed itself; and the simple question was, whether it was a mor- 
ds causa settlement or not? His Lordship was clear that this was 
the nature of the deed, that it was therefore revocable on the part 
of the granter, and was accordingly revoked by the subsequent 
trust-deed in 1828. 

Lord GiUies concurred, and thought that the interlocutor of the 
Lord Ordinary was well founded. A deed of this kind executed by 
a wife, and bearing to be done in compliance with the wishes of her 
husband, was of a suspicious nature, and his Lordship had great 
doubts how hx a court of law was bound to give effect to it But 
it was said, that if this deed had not been executed, the husband 
would have made one of a similar nature in fietvour of the persons 
named in it, in virtue of the reserved powers contained in the pre^* 
vions deed of 1815. But quomodo constat that this was the case? 
The only evidence in support of this allegation was the narrative 
contained in the deed ; but it was impossible to gpive effect to such a 
narrative. A court of law could only j udge of and give effect to deeds 
actually executed, and not to what it might be alleged that parties 
would have done under certain circumstances. If the argument of 
the pursuers was successful, it would overturn the whole doctrine 
of our law. The rule of law was, that the consent of the husband 
was necessary to deeds executed by his wife ; but, according to this 
doctrine, if a married woman were to execute a deed disposing of 
her property, to whatever extent, and in any way, and bearing 
to be done in compliance with the wishes of her husband, it would 
be binding against herself and all other parties, although in point 
of fact it may have been executed even without his knowledge. 
But this was contrary to the principle of our law, and ought not to 
be sanctioned. 

The Lord President also concurred. 

The Coiart therefore adhered, and found expenses due. judgment 



49 DECISIONS OF THE No. 8- 

80 Nov, 1831. Jjord Conkou^, pidiimry. AcL RMOmfurA, Ad. PaUrmn. A. C. Howdem^ 

^s^V^^ W. S. Agenu Alt SkeHe, Graham BefL George Stodart Jf W, FroMerjun, 

Browolee and W. S. AgeQts. H Clerk, 

Others ». . ; r* 

Waddell and 

Others. 



FIRST DIVISION. 
No. IX. 124 N4MMiler 1831. 

PERTH UNION BANKING COMPANY 

agaimt 
ANDERSON akd Othees. 

Competition. — Executor-Creditor. — Arrestment. — A cfe- 
cree in a multipkpoindinff, preferring the claimants according to tfie 
priority of: their arrutmentsy having become Jmoi^ and one of the 
chimanti haoing subeequentfy obtained himse^ confirmed executor" 
creditor of the common debtor^ found that the conftrmatian was pre* 
ferahk to prior ^ ap'estmentSj notwithetanding Hie previous decree of 
pr^erence. 

m - » 

Roderick Robertson sold a house in Dunkeld to the Duke of 
Athol, but died in embonrassed ciieumstances before the price was 
paid* Various arrestments having been used in his Grace's hands 
by Robertson's creditor^ a process of multiplepoinding was brought, 
in which different claimants appeared. By an interlocutor pro* 
nounced in ' 1324, and ^ich was aUowed to become final, the 
Duke of Athol was preferred primo loco for certain sums of which 
he claimed retention* Charles Blair was preferred secundo loco 
for a debt of L.400. The Perth Uaiim Bank were preferred tertio 
loco for L,426 : 9 : 6, being the amount of two promissory-notes, 
pn which arrestments had been used on 17 February 182d« Ro* 
derick Anderson and others, (the predecessors, of the present re* 
spondents,) were prefenred quarto loco for a debt of L.263 : 10 : 4, 
upon which arrestments had been used on 21 February 1824; and 
the Perth Union Bank were preferred ultimo loco, for a fordier debt 
t>f upwards of L. 12,000, being the balance of a stated account. 

After this interlocutor had become final, the Perth Union Bank 
entered into an arrangement with the Duke of Athd, by which his 
Grace gave up his claim oi retention, and the Bank got themselves 
confirmed executors-creditors of the common debtor, in which con* 



No. 9. COURT OF SESSION. 4S 

finnation Anderson and others, tike respondents' predeeessors, were ^ Nov. IS3|. 
joined. 

The Bank then lodged an additional daim in the mnltiplepoind* BankiDg^Com- 
ing, amounting, with the claim formerly lodged, to upwards of panyv. Ander« 
L.24,000, upon which they claimed to be ranked pari passu with ^^^ 
the respondents' predeoesBors. This was objected to by die respon- 
dents, who, founding upon their arrestments and the final interior 
cutor f(Hm,erly pronounced, insisted that the preferences, as already 
ascertained in that final ranking, could not now be disturbed. 

The Lord Ordinary ordered cases to the Court, and added the 
following note: ' The Lord Ordinary considers it to have been 
settled by the cases of Carmichael r. Mossman, and Fleming v* 
Wilson, that a confirmaticm as executor-creditor is prefemUo to 
an arrestment used during the common debtor's life, provided no 
decree of forthcoming has been obtained before the confirmation. 
But the present case differs in so £eur from these, that the arrester 
here had obtained a decree of preference in the mnltiplepoinding, 
and this in a competition with the creditor nHko subsequently ob«- 
tained a confirmation. The main point at issue seems therefore 
to be, whether such a decree of preference is to be held eqiiiva* 
lent to a decree of forthcoming, and as completing the diligence 
of the arresting creditor ? The Lord Ordinary thinks it question** 
able if the decree, in the circumstances of the present case, can be 
held to have snch an effect; bnt as such decrees are somewhat pe* 
euliar in their nature, and their effects not very distinctly defined, 
he has thought it proper to report the case, that the opinion of 
Court may be obtained.' 

Pleaded for the Bank — ^The claim lodged for the respondents' is £xecutort.cre- 
founded upon arrestments used by them ; but an arrestment is an ^^"* ^^^^ 
inchoate or incomplete step of diligence, and is only completed when 
foUowed up by a decree oiF forthcoming ; the claimants, on the other 
hand, found upon their decree of confirmation as executors-creditors, 
which is a complete diligence of .itsel£ It has been solemnly 4mU 
judged by this Court, that a confirmation as executor-creditor was 
preferable to an arrestment; Carmichael v. Mossman, 27 June 1742, 
KOk. M. 2791 ; Fleming v. Wilson and McMillan, 26 June 1823. 

Neither can the interlocntor formerly pronounced in this multi* 
plepoinding, ascertaining the preferences on the different daims 
as then lodged, have the effect of a decree of forthcoming, so as to 
transfer the fond from the debtor to the creditor, or preclude the 
rights of parties afterwards appearii^, by founding upon more com* 
plete diligence. An action of forthcoming is a demand for a spe- 
cial decree, concluding for payment of the fund arrested ; and a 



44 DECISIONS OF THE No. &. 

24 Nov. lasi. judgment, therefore, in terms of the conclusions of the libel, must 

^^V^^ have the effect of a complete transference. But it is a matter of 

Banking'^Cofn. established practice, that in a multiplepoinding there is no finality 

pany v. Ander- while there are other claimants who have not appeared, or other 

^^^ *"• interests or claims to be insisted upon than those already decided. 

Executors-cre- An interlocutory judgment allowed to become final, and deciding 
1 ore ear. ^^ preference as between the interests and claims upon which ap- 
pearance has been made, may be final between those parties, to the 
effect of determining the particular question so pleaded. But, till 
the fund is actually disposed of by a final decree of ranking, it is 
competent for any creditor to claim a preference on a new ground 
or interest not yet pleaded, just as it is competent for a creditor who 
has not appeared at all to step in and carry off the fund from all 
the parties concerned. 

There was no representation of the deceased, except by the con- 
firmation as executors-creditors. By the decree of confirmation their 
diligence was completed, and when produced in process it was a 
completed transference. Any decree before there was an executor at 
all must have been, as a transference, inept, and unfit to carry the 
fund ex bonis of the deceased. There was no final decree of rank- 
ing in the multiplepoinding ; there was merely an interlocutor 
adjusting the preferences on the claims then lodged, and to that 
effect it may be res judicata^ that the arrestment of the one party 
was preferable to the arrestment of the other; but that can never 
form a res judicata with regard to other claims, and other diligence, 
not then pleaded upon. There may be res judicata in regard to 
all the interest or grounds of preferences pleaded by the creditors, 
and yet there may not be an effectual transference in regard to any 
one of them ; and even a creditor who has already appeared, and 
who may be excluded by res judicata from stirring points already 
determined, is not thereby precluded from bettering his situation, 
by improving his diligence, and making a more effectual ground 
of claim, even pendente processu, so long as the fund is extant, 
and where there has been no final scheme of division. 

Arresters* Pleaded for the respondents — 

When a claim of preference in a multiplepoinding, founded on 
an arrestment, has been sustained, and the interlocutor sustain- 
ing it has become final, it cannot be challenged or disputed by a 
claim for another, creditor, claiming a preference as executor-cre- 
ditor of the common debtor, upon a confirmation expede after 
the finality of the interlocutor. At least, a claim of preference 
so sustained cannot be challenged or excluded, where the object- 
ing creditor, founding on his confirmation as executor-creditor, of 



Pleas. 



No. 9. COURT OF SESSION. 45 

date subsequent to the finality of the interlocutor^ was, {^evious to 24 Nov. 1831. 
the pronouncing of that interlocutor, a party appearing in the mul- ^^v*^ 
tiplepoinding, and disputing the preference* BarJcing^CcIin- 

If the respondents' claim; rested upon their arrestments alone, pany v. Ander- 
then, upon the authorities quoted for the Bank, it might be held '^ '*" *"' 
that the confirmation was preferable. This is all that was decid- Arresten* 
ed in the cases referred to by the claimants ; for there the creditor, 
in competition with the confirmation as executor-creditor, had no- 
thing to found upon but arrestments. But the present case is entire- 
ly different Both parties had claimed in the multiplepoinding, and 
their several preferences were adjusted by an interlocutor, which 
was allowed to become final. So that here there was not merely 
an arrestment, but an ascertainment, by a final judgment in a com- 
petent process, of the rights of the claimants upon the fimd, which 
must be equally effectual as a decree in a forthcoming, or any other 
final decree. A decree of preference in a multiplepoinding is equal 
to ah intimated assignation ; it is a judicial assignment to a certain 
extent of the debt; and the arrester being a party to the process, 
the mere pronouncing of the judgment necessarily infers intima- 
tion; It will not be disputed, that an intimated assignation would 
be preferable to any subsequent confirmation as executor-creditor. 
Although it may be true that a decree of preference, allowed to 
become final, may be got the better of in the process of .multiple- 
poinding, without the necessity of a reduction, if there has been 
no final decree of distribution, yet this only applies to a case of a 
claim, preferable at the time when such decree was pronounced, 
and does not apply to diligence posterior to, or grounds of challenge 
of a later date than the decree. The limitation of the decree of 
preference < for aught yet seen,' means merely, that if it can be 
shewn*; that the interlocutor was truly unfounded, in respect of its 
being obtained, when there was, at its date, a preferable right, the 
finality of the interlocutor will not prevent the Court from correct- 
ing it If there }iad been a final decree of distribution, it would 
require a reduction to set it aside ; but such reduction would not pre- 
vail, if it were founded on rights acquired, or diligence completed 
subsequently to the decree. The party must shew that the decree 
was not well founded at the date when it was pronounced; and the 
same is required in opening up a decree of preference^ in the pro- 
cess of multiplepoinding itself, before a final decree of distribution has 
' gone but It to this extent alone that it may be said, that a de- 
cree of preference does not become final td the effect of cutting out 
other and preferable claims which existed at the date when the de- 
cree was pronounced ; but such decree does become final, to the 
effect of excluding claims which did not exist, or diligence which 



% 



DECISIONS OF THE 



No. 9. 



21 Nov. 1831. was not completed, till after thefioalky of &» decree of preference ; 
^"^V^ which is the case here, the confinnation as ezecutor'-creditor not ha- 
Bimitnff'cM. ving been expede till after the decree of preference, which was pro- 
panyv. Andcr- noohced in a competition with the same party, had not only been 
■on aodOtheiB. pjohounced, but allowed to become finaL 



Arresters* 
Pleas. 

Judgment. 



Opinion of 
Court. 



The Court unanunoasly snstained the cbdm of the Bank, and 
't])at the balance of the fond in medio < is divisible among 

< the exeoators-crediton of Roderick Robertson, pro rata, accord- 
^ ing to their seyeral rights and interests ; therefore they rank and 
* prefer the «ud John Stewart for the Perth Union Banl^ and the 
« other creditors confirmed along with the Bank, pari passu upon the 

< balance of the said ftind, and decern/ 

Imr4 Bdlgray observed, that the only difficulty in the case seem- 
ed ilo/acrise from not attending sufficiently to the nature and object 
•o#^' process of multiplepoinding. Its object was to enable the rai- 
(ser to pay in safety; and when competing creditors appeared, ister- 
.laeutors of preference formed a res judicata as between these parties, 
-«Bd upon die points litigated, but no £» ther. Even after sudi de- 
cree' (^ preference, any creditor having a better right might come 
in and cut out all the previous daimants ; and even a creditor who 
had daimed might, pendente prooessu,. complete his diligence, or 
make his title more complete, and bring forward this corrected and 
aml]:^te tide instead of his former defective one, and carry off the 
whole fund from the other claimants. If the process of multiple- 
poinding had been brought during the lifetime of the common debt- 
or^ then it might have been a question, whether tiie decree of pre- 
ference following upon die arrestment might not be considered equi- 
valent to a forthcoming. But the action was not brought in the 
lifetkne of the common debtor. At the time this decree of prefer- 
ence was pronounced, the fund in medio was in bonis defimcti. A 
decree of preference never could operate as a transference, or take 
the fond out of die defunct This could only be done by a confirma- 
tion. As to the question of litigiosity, Erskine has laid down the 
doctrine a great deal too broadly in his last section upon adjudica- 
tions. Mr Bell in his Commentaries has explained this with mudli 
accuracy, and shewn how fer the doctrine pendente lite nihil inno- 
vandum can feirly and legitimately be carried ; it was to prevent 
voluntary conveyances by die debtor, but never can prevent a cre- 
ditor from bettering his stuation, even in a competition with other 
creditors. The law on this point has been distinctly laid down in 
the case of Massie v. Smith, 12 July 1785, M 8377. 



No. 9. COURT OF SESSION: 47 

Urd (MiMiy, Niwiom. For OmamatBf Skate. Wk, Mvrmfi W. S. Agtnt. IM Not. 1831. 
For Respoodents, Dean of Foe* (Ba^) A, Wood, Ja$, MacdantB, W. S. Agent, ^i^m^t^^ 
D, Clerk. . . Perth Umon 

"■ 'Y, Banking Com- 

pany o. Ander- 
son and Offaers. 



SECOND DIVISION. ■■ 
No. X. M ^^9bmber 183L 

* a 

FISHER AND Others 

agaiM 
DIXONS AND Others/ 

Protision to Heirs and Children. — Legitim, — Afaiker ha- 
mnfff by a moriisoauiasHtbmentf provided 
kk damghben in Ufertnif fir their Ufereni use aUenarfyf and to 
thar dtiidrtmimfee^ and declared thai iho^epromi^^ 
fi$U to each (tfhi» daughters, their hmbands^ children^ ^tr., of all 
their legal or commdimudi^amu upon hM right 

if the childnm of one of his daughters io the fee ijf'the provision so 
bequeathed UHis natpr^udiced tf their mother rqmdiiating the li^' 
rod, and betaking hermifto her 



The kte Mr WilUam Diion, by his tnislrdisposidon and setde- 
ment, and codicil thereto, made a pronsion of LJMOO to each of 
Us dapghtevB, far dwir lifereiit use aUeiiarlyt and to their children 
in feO) which profision be declared should be exclusive of their hus- 
band's jus mariti) &e. and in full * to each of my daughters, their 

< hnsbaiids, children, or assignees, of all that they could ask or daim 

< in and through my decease, legally or conventionally, or any other 

* wujJ In the eodicH he directed the above-mentioned provisions 
to be lent out in the name of his sons and another person as trus- 
tees, ^ for the use and.b^oof of the said daughters in liferent al- 
^ lenarly, and their children in fee, the fee facing to be divisible 
^ among the children, by any joint deed of the parents, or the sur- 

* vivor ; and fidling sudi writii^ bebg executed, to be divided 

< among the children equally smA prc^ortionally, share and share 
« alike.' 

Mrs Margaret Dixon, one of the daughters of the testator, was 
married at the time of his death to Mr Fisher, by whom she has 
had several children. After Mr Dixon's death Mr and Mrs Fisher 
raised an action of multiplepoinding in the name of his executor. 



48 



DECISIONS OF THE 



N«. 10. 



Fisher and 
Others v. 
Dixoa and 
Others. 



4^Nov.^l83l. i^QJ ^^ ^^ action of count and reckoning against them, to ascer- 
tain the amount of her father's executry, with a view to repudiate 
her provisidn under the settlement, and to betake herself to her le- 
galclaims. 

At the same time an action of declarator was raised by her chil- 
dren against the executors and representatives of the testator, to have 
it found and declared, that this right to the fee of the foresaid sum 
of L.4000 belonged to them, and that the executors were bound to 
invest it, as directed by the settlement, in the names of the trustees, 

so that it might be made forthcoming to the pursuers upon the 
death of their mother. 

The executors of Mr Dixon defended themselves against this 
claim, on the ground that his settlement was declared to be a provi- 
' sion to his children, in full of all their legal claims ; and that if the 
mother of the pursuers repudiated the provision, and betook her- 
self to her legitim,' the provision of the fee in favour of her children^ 
being part of the provision in her favour, would become void. 

The Lord Ordinary took the cause to report on cases, and issued 
the following note of his opinion : ^ The question, whether, in the 

* case of a bequest by a father to a child for his liferent use allenarly, 

* and to the children of that child in fee, the declaration, that the 

< bequest shall be in full of all the child's legal claims, imports a 

< condition, on the compliance with which the right of fee as well 

* as that of the liferent is dependent ? is one which appears to the 

< Lord Ordinary to be attended with considerable difficulty. The 
^ case of Watt v. Ewan, 10 July 1828, founded on by the pnr- 
<. suers, is certainly very nearly in point ; and on the strengUi of 
^ that decision, the Lord Ordinary was at first inclined to^ give 

< judgment in favour of the pursuers. But, in the present case, in- 

* dependently of the expressions in the settlement, marking, per- 

< haps, more clearly the testator's intention, there is this additional 

< distinction, that the provision is in &vour of the testator's daugh- 

* ters in liferent, for their liferent use allenarly, and < tbdr children 
" in fee.' While in the case of Watt r. Ewan, the provision was 
<< in favour of my son John, and his present wife, and longest liver 
<< of them in liferent, for their liferent use of the interest thereof, 
<< and the fee thereof to the children procreated between them, 
<< share and share alike ;' which expressions might perhaps be held 

< to denote a right in tlie wife, and the children of the specified 

< marriage, more absolute and unconnected with the rights of the 

< father, than that created by the general expressions employed in 

< Mr Dixon's settlement. As the point is of some importance, and 
^ as the report of the case Ewan v. Watt does not aflford the means 



No- 10. COURT OF SESSION. . 49 

^ of ascertaining the precise grounds npon which it was decided, the ^^ ^o^* ^^^}' 

< Lord Ordiimry has 'thought it inost advisable to order cases. 
' f The multiplepoiriding, and. count and reckoning depending be* others v. 

f tween the present defenders and the mother of the pursuers, in- iDi^^oo. and 
delude the whole fiinds of the testator; the very sum now pursued ^"' 
^ for is lent out on security, in virtue of an order made in these 

< processes ;' and the Lord Ordinary understands that the determir 
^ nation of the pursuer^s laother to claim legitim, or. to ^UH^pt the 

* provisions of the settlement, will depend on the result of these 
'proeeflses. 

* < But Aie quetjiBt^ how far the right of fee in the children is in 
' any way conditional on that tietermination ? admits of being sepa^ 
.'-rately discussed ; and that course seems to have been sanctioned 
*• by Lord Cringletie's interlocutor of the 26 May 1829, repelling 
'^ the preliminary defence, that this action ought to be dismissed or 
" remitted hoc statu to the multiplepoinding,' and appointing the 

* parties to prepare a record.' 

• 

The pursuers pkaded-^TbBt the settlement of Mr Dixon consisted Punuen* 
of two provisions quite distinct and independent of each other, viz. ^^ 
of the liferent of L.4000 to his daughters, and of the fee of the sam^ 
sum to their children ; and that this was secured by directing the 
sum to be laid out in the names of triistees, so as to secure both 
parties in their separate interests. The provision that the money 
was to beloi^ to his daughters only, for their liferent uSe allenarly, 
is quite inconsistent with the idea that they could defeat the pro- 
vision of the fee to their children by any act of theirs ; and the provi- 
sion of the fee to the grandchildren of the testator is unencumbered by 
any conditions. The decision in the case of Watt v. Ewan, 10 July 
1828, is directly in point There is nothing in the terms of the set- 
tlement to show that the right of the pursuers to the fee of the provi- 
sion was made to depend upon the acceptance by their mother of the 
liferent given to her. 

The defenders annoeretf^— That it was a special condition of the Defenders* 
provision in dispute, that it was made to Mrs fisher, (the mother of ^'^"' 
the pursuers,) jointly with her children, and in satisfaction and lieu of 
her. claim for legitim, and all her other legal or conventional claims 
i^on her fiather's funds ; and that the only fair or rational meaning 
ef the setdem^it, and the enixa voluntas attached to the bequest, are 
that payment of tine provision cannot be claimed by any party who 
does, not fulfil the condition by tendering a valid and effbctual dis- 
charge of the claim of legitim. . The provision of L.4000 is made as 
anunnm quid to be liferented by the mother, and, on her death, to 

VOL. II. D 



50 



DECISIONS OF THE 



N4. 10. 



Fisher and 
•Others V. 
Dixon and 
Otbera. 

DefeDdtfM' 



24 Nov, 1831. be divided amongst the children, in such portiimiBi as their parents 
might appoint ; and it is expressly declared, * that the proviaioBS 
' above mentioned shaU be in fall to each of my daughters, their 
^ husbands, children or assignees, of all that tiiey conld ask or 
f claim in and through my decease, legally or conrenlionally, or in 
^ any other manner of way.' The present being a question arising 
on tlie construction of a settlement, is purely a question of inten«» 
tion ; and on the above clause, as well as all the other terms of ihi 
testator in speaking of the destination of the whole L.4000 as a 
provision in favour of his daughters, there can be no donbt that he 
intended the provision of the fee as well as of the liferent to oome in 
place of his daughters' claim of legitim. The case of Watt ▼; Ewan 
was decided in respect to the pecuUar terms of the settlement, which 
were different firom those used in the present case ; and the only 
point which appears to have been much contested in that case was, 
whether the fee of the provision vested in the liferenter or remained 
in pendenti. The mother of the pursuisrs is the only person who can 
demand payment of the provisions in the present case, as, by the 
terms of the settlement, they are made payable to her alone ; and 
die is constituted fiduciary fiar for her children who may survive her, 
with an unlimited power of division amongst them. 



Opinions of 

consulted 

Judges. 



As the only direct authority founded on in tfie argument 
the case of Watt v. Ewan, which was decided in the First iMvi- 
sion, the Cotaf^ before advising this cause, thought fit to require 
the opinions of the other Judges in writing upon the cams. 
The following opinions were accordingly given in : 
Lords Presibent, Craioie, Balgray, Gillibs, Corebouse 
and Moncreiff. — * We have carefully considered the disposition 
*and settlement of the deceased Mr William Dixon, dated 11 

< April 1817 ; as also the codicil thereto annexed, dated 15 
' March 1820. 

* By these deeds it is declared, that the provisions to his daugk- 

< ters * shall not be subject to the jus mariti or right of administra- 
<< tion of thdr husbands, or liable to be attached for their debts or 
*^ deeds, but shall belong exclusively to my daughters in liferent, 
<< for their liferent use allenarly, and to their children in fee, and 
'< shall be so secured at the sight of my said sons, or the survivor 
«* of them.' 

< Also, in the codicil conferring an additional provision, it is de- 

< dared, < That the said present, like the former provisi^, shall 
«( not be subject to the jus mariti, debts, deeds, curatory, or admi- 
** nistration of any husbands whom my said daughters have or may 
^* marry, but shall, along with the said former provision, be lent 



No. 10. COURT OF SESSION- ai 

<* onl imd iemired on goodsecurily, at the s^ht and in the name of ^ Not. issi. 
** mj aatd aoM or annriTori along with Mr Nathaniel StevenBon, ^^^/^^ 
*^ writi^ui daflgoW) aa tniateee, for the ase and behoctf of my said otbm^ 
** dajii|;htan» in liferent allanarly» and their children in fee, the fee Dixon and 
'^ being to be dirinble among the children by any joint deed of the ^"' 
^ paventa or the surriYCHr/ Opinions of 

< We consider these dauses of great importaace, and we think ^^^^^ 

* that the graater^ by these deeda» created two separate and distmct 

< eatnliMt the one of liferent a^d the other of die fee, and that these 
^ catastea were in no ways dq)eBdeot npon one anolher. We are the 
' SMNre iaotined to be of this 44>inion, from the cireumstanee (tf trus^ 

< tn^tk being appointed to hold ths fee separately for behoof of the 

< dnldien, independant of the right of their parents* We therefore 

< cannot aee upon what gromids in justice the children can be de« 

* pitvad of the fee by any act ^ deed of the Itferanters, who are en- 
^ titled to manage their own prcq[>erty as they think fit, without con- 

< tiol on the part of their chiUren. 

< The expraaMons made use of in Mr Dixon's settlement, and to 

< wbiak the defenders refer, are to be ccmsidered with great caution, 

* partioalariy when dir^ and positiye rights are created. Where 

< tha intention of a granter is clear and e:q>licit, the inductire cause 
' is of Utile in^pwtance in testamentary deeds. Whatever were Mr 
^Dixen'aialentians in a cettain event, yet as that certainly has not 

* taken plaoe^ without an express declarati<m it cannot be maintained 

< that the daughters, by claiming any thing due to them, either as a 

* share of the goods in communion at their mother's death, or in the 
> name of legitimat their foiher's death, could deprive their children 

* of ar^ht of fee, with r^ffixd to which their mother had no interest 

< whajfcever but that of liferent. If Mr Dixon had intended to make 
« ihe renunciation ni those rights a condition <tf the grant of the fee, 

< he ought to have expressed his intention in a more direct and ex* 

* plidt manner. 

* Under these circumslanees^ we conceive it to be improper for 
^ a Court to extend a condition frmn presumed intenti<m* In the 

* present case, we think that neither of the parties could make the 

* condition of the other better nor worse. 

< Upon the whole, we incUae to think that the case of Watt a 

* Ewing, decided 10 July 1838^ is very nearly in point* and ought 

< to be followed as a precedent 

< It may be observed, that the plea ef har^jbyp which has been 

< stated on the part of the defendere is not altogether just or cor- 

* rect The grantor's heira will eigoy the liferent of the grand- 

* children's provisiona during the. life of their mother, and so an- 

* nually diminish the daim.' , 

d2 



5^ 



DECISIONS OP THE 



No: Id; 



Fisher and 
Others v. 
Dixon and 
Others. 

Opinions of 

consulted 

Judges* 



24 )7oT. 1831. l^Td FuLLERTOM. — * I concor in the foregoing opinion. If the' 

< present could be viewed as a mere qaestion of probability^ very 

< plausible reasons might perhaps be given for the supposition thaf 
^ the testator intended to make the right of fee, as well as that of 

< liferent, dependent on the surrender of the l^tim by the daugh* 

< ters. But I do not think that the deeds contain words capable of 

< supporting such an intention. 
< The effect of the deeds clearly is to create two distinct and in^ 

* dependent rights— that of liferent in favour of the daughters, and* 

* that of fee in &vour of die children of those daughten. Then 

* follows the declaration, < that the provisions above mentioned shall 
<< be in full to each of my daughters^ their husbands, children or as- 
'< sig^ees, of dl they could ask or claim in and tjurough my decease, 
** legally or conventionally, or any other manner of way/ Now, I 
^ conceive that it would be outstepping the limits of le^timate con- 
^ Btruction to connect with the surrender of legitun^ not only the 

* provisions of liferent created in fevour of the daughters who had 
' a right of legitim, but the provision of fee in &vour of the chil- 
^ dren who had no such right ; so as to raise by implication a con- 

* dition affecting the bequest to the children* The question seemtf 
^ to be substantially the same with that raised and decided in the 

< late case of Ewan r. Watt ; and though there may be some sHght 

< difference in the expression of these deeds, I do not think that the 
^difference is such as to warrant th6 application of a different prin- 

* ciple to the present case/ 



Lords Mackenzie, Medwyn, and Newton. — * 1. In this case; 
' the testator declares, that the provisions are granted as ^ provi- 
*^ sions to my daughters, and for the love and favour which I bear 
*' to them.* The mode adopted of providing the daughters is, by 

* giving them sums of L.4000 each. These sums, to be sure, are 

< directed to be laid out on securities, for them in liferent allenarly, 
^ and their children, natis aut nascituris, in fee. But still, the whole 

* grants of these sums were certainly viewed as provisions on the 
'<langhters, insomuch. that, even in case any daughter predeceased, 

< it is expressly mentioned, that the children of that daughter are t6 
^'receive it < as coming in place of their mother f and powers over 

< <the fee, at least of one-half, if not of the whole, — powers of great 

< importance, — are reserved to the daughters, or their husband^. 
'^ The whole of each provision is manifestly viewed as unum qiiid, 
'* provided in favour of each daughter. Nor is there any thing aV- 
'^ «urd, but the contrary,* in making provisions for daughters by k 
' < destination such as is here done, which reserves the fidl benefit of 

< it for themselves and their children. 



1*). 10. COURT OF SESSION. 69 

« IL The deed then bears, that ithe provirions aboVe Mentioned «i Nov, 1831 



^* shall be in full to each of my said daughters, their husbands, chil- 
^ dren, or assignees, of all they i could ask or claim in and through o^hen v. 
'< my decease, legally or conventionally/ The * husbands, children, iKzon and 
«< or assignees,' are evidently mentioned onty as persons to whotn •' 
•4 the daughters' right might pass. The substance of the clause re- opiiuon« of 
^ lates to daughters; that is, that these provisions were to be in ^^1^ 

* full of their claims, legal and conventionaL The idea of applican- 

* do ^pUcandis is inadmissible. The < husband, children and as- 
.^* rignees,' could obviously hieive no right, legal or conventional, of 
<^ their own, not derived through the daughter, that was the wife, 
^ mother, or cedent. The provision, then, may be read as if the 
'* words had been simply, * that these provisions shall be in full to 
>^ my said daugbters of all they could ask or claim in and through 
►-*• my decease.' 

< III. The daughter Margaret Dixon, Mrs Fisher, refuses to give 
^ up, and claims her l^tim : and she repudiates the provision, — 

* which she bas full power to do. Yet her children claim the fee 
•^ of the provision, as being settled on them, independently of hen, 
^ or her deeds. We think the answer to this claim good,<*-tliat the 
^ manifest intention of the testator was, that the provision, as nDum 
^ quid, should have effect, as a provision on his daughter, and as a 
^^ satisfiMsdon of his daughter's claim, legal or conventional, .and 
** not otherwise; and therefore, if it cannot have this effect, it can- 
-^ not have effect at all. He never intended it, nor has he ejq>ressed 
^ it, 88 a separate independent legacy on his grandchildren* 

< This construction, we think, is certainly agreeable to the true 
'* intention of the testator, .and we are not aware of any principle 
>^ by which that intention can be defeated, and a result produced 
< which the testator never intendedi Tlie case of Ewan does not 
^ appear to us to be one in which the circumstances were precisely 
•^ dmilar to the present In that case, there does tiot appear to have 
"* been the same grounds for certainty that the provision was viewed 
'* as one provision on the child whose legttim was to be dischaiged, 

* and, on the want of this evidence of intention, we believe the de» 
'* ciaon of the case must have rested. In this case, we see ho room 
^ for doubt on that subject' 

When the case returned for advising to the Second .Division 
'Witii these opinions. 

The Lord Jtutice^Clerk said— When this cause was formerly be- opinion of 
tone as, I suggested the propriety of consulting the other Judges, Court 
seemg that it was said to depend upon the case of Watt against 
flwan, decided by the other Division ; but now that it has returned 



u 



DECISIONS OF THE 



No. 10. 



FiAerand 
Othenv. 
Dixon tnd 
Others. 

Opinion of 
Court. 



24 Not. 1831. to US wttk did be&efit of the Opinions of the consulted Judges, which 
I have conridered mth all the attention in my power, I must <ion- 
fesB that the opinion which I hare foimed concurs with that of the 
minority. In whatever shape this demand may be now made by 
the punuers of this action, or in whatever form of action the par- 
ties interested may have chosen to try the question at issue be- 
tween them, it must necessarily result merely into a question of 
construction of the terms of Mr IMzon's settlement I do not 
think, therefore, that any advantage can be taken by the pursuem 
in consequence of having raised this action of declarator, whidi 
they would not have equally enjoyed if they had tried their ri|^ts 
in the process of multiplepoinding which has be^i raised in the 
names of the defenders, and is now in dependence. The question, 
in whatever foim it is l»onght out> must always be the same^ vk. 
What is the true meaning and construction of Mr Dixon's settle- 
ment taken as a whole ? Now, with regard to this, I mustobserve, 
that from the beginning to the end of the instrument, the declared 
object* and purpose of the grantor is to make provisions for his 
daughters ; and whatever arrangements may be made as to the terms 
of payment, or manner in which their provisions are directed to be 
. secured, they are expressly dechured to be made as provisions to his 
said daughters, and proceed on the narrative of love ahd&vour to- 
wards them. There is no word of love and fiLVonr to his grand- 
children, or of any intention, on the part of the testator, to make 
provisions in their favour independent of their mother. This b4- 
ing the case with regard to the first L. 0000 provided in the origin 
nal deed, in whidi tiiere is no nomination of trustees, and also with 
regard to the additional L. 2000 provided by the codicil, I cannot 
see. that any farther provision as to the manner in which the money 
was to be secured by taking the rights in the names of trustees, but 
still < for tiie use and behoof of my said daughters, in liferent use 

* allenarly, and their children in fee,' can overrule the original con^ 
ception of the bequest which is in £Btvour of his daughters ; more 
.especially as the clause, * that the provisions above mentioned shall 

* be in fiull to each of my said daughters, their husbands, children 

* or assignees, of ail that they could ask or daim in and through my 
\ decease, legally or conventionally,' rides over the whole settie- 
ment Look again at the clause which gives to the unmarried 
.daughters power of disposing by will of one-half of the fee of tiieir 
provisions, and at the power of division given to the married 
daughters and their husbands of the principal sum of the provision 
amongst their diildren ; and all these clauses, taken together, con- 
firm me in the view, that this must be taken as aprovision made to 
the daughters of the testator in lieu of their legitinL The o^ly 



No. 10. COURT OF SESSION. S5 

wmy in wbieh th« purstten cut make out their olaim is by dividing 9i Nor. I8S1. 
the deed) and sepairating the interests of the da^ght^rs of the testa- ^^«^y^^ 
tor from that of their children. But, on taking the whole deed to- ol^enr"^ 
gether^ 1 cannot do this, seeing that the proyisioiis both of the life- T)Mn and 
tent and fee are nfade in the same oktuse, and upon the same bar- ^"' 



mtiYe, of ^ making payment to each of iby daughters who shall be Opinion of 
^ in life at my deaths or the lawful issue of such of thein aft may pre- ^^ 
* dcoease me, as ooming in right of thdr mother deceased ;' and that 
.the wetds whidi I hove ahready quoted, declaring, that ^ the pre- 
^ Tiaicnia above mentioned,' (evidently embracing both the fee artd 
liferent,) shall be in full of all daim^ legal or conventionaL It only 
remains finr me to notice the case of Watt against Ewah, of which 
I shall only lay that it does not appear to me to be identical with 
the present case. In it there was an express provision to the Wife 
and her diildren, independent of her husband, th^ son of the testa- 
tor, and the party who had made his election to take his l^tim ; 
4tnd the fee was secured to them in a way which could not be d6* 
feated by any act of the hjisband* For these reasons I think that 
the daim made by the pursuers in this action cannot be sustained. 
Lard QUnUe. — I entirely concur with your' LoiNlship* I could 
easily conceive a case of great difficulty, if, ex figura Verborum^ there 
were a separate and independent estate constituted in fiEnroitr of the 
diildren. But here, ex figuia verborum, there is but on^ provision^ 
which is directed to be secured in the names of trtstees^ for the use 
and behoof of the daughters ill liferent, and of the children in fee ; 
and, by the terms of the settlement, the qualification that it shall be 
in full of all chums, l^;al or conventional, attadies to the Whole pro- 
vision ; and the intention of the testator appears to me so obvious, 
that I can see no ground for going contrary to the natural import 
ef his words, that the condition shall so attach. Suppose that Mrs 
Fisher, after surviving her &ther, though but for a very short time, 
80 that her daim for legitim had vested, had died without doing any 
thing to in(ficate an inteiotion one Way or another with regard to 
this providon, could yon, in such an event, have allowed her chil- 
dren to daim both the l^tim, as in right of their mother, and also 
the pravisian made to them by the settlement ? Or would it not 
have been a suffident answer to them to say, that by the clause in 
Ike settlement the providon was given in lieu of the legal claim ? 
The providon in the settlement is truly of the nature of an offer 
made by the testator to his daughter. Now, suppose he had 
made the offer in bis lifetime, of making the providon in fitvour of 
heisdf and her children, on condition that she repudiated her clahn 
to legitim, is there any reason, from the terms of the settlement, 
to siqipose thai he would have given the providon to the children if 



56 



DECISIONS OF THE 



No.lJ). 



Fiiher and 
Othen V. 
Dixon and 
Others. 

Opinion of 
Court. ' 



24 NdT. 1831. the offer.liad been rejected by the mother ? What is called a fee in 
the children is a right of a very anomaloas nature* A proper fiar 
has a right of disposal of the subject; but in this cue Mrs Fisher 
and her husband may entirely disappoint any one dP the chtldreB* 
The material point for our consideration is, whether we axe bcmiid 
by the case of Watt against Ewan. Now, I confess that I should 
scarcely hold. a smgle decision, even if it were in pobt, sufficient 

• to settle a question of this kind. But it appears to me from the 
reports of that case, that the principal question which is debated in 
the case now before us was not raised in that of Watt, and perhaps 
there were no termini habiles for doing so* The question argued 
there was in whom the fee was vested; and it is plain that, by the 
tenns of the settlement in that case, there was a right vested in the 
wife of the testator^s son, which her husband could not discharge. 
- hord Crififfletie. — I concur with your Lordships, and with the 
minority of Uie consulted Judges. The opinion of the majority of 
the consulted Judges proceeds on a mistake in point of fact, in hoU*' 
ing that Mr Dixon has not made a renunciation of the claim of le*- 
gitim by his daughters a condition of the grant of the fee of th^ 
provision to their children. It appears to me that he has expressly 
done so, and that we cannot sustain the claim now made by the pur* 
suers without entirely disregarding that clause in the settlement, 
which declares, < that the provisions above mentioned,' (which 
clearly includes both the fee and liferent,) ^ shall be in full to each 

* of my daughters, their husbands, children, or assignees,' of all 
claims, legal or conventional, on his estate. 

Ztord Meadowbanh. — There is no help for difference of opinion 
amongst Judges, but I confess that mine concurs with that of the 
majority of the consulted Judges. . The only question is, what in« 
tention Mr Dixon has expressed in his settlement in a legal man-* 
ner ? And I am therefore bound to throw all probabilities, and sup«- 
position of what he may have intended to say, out of the question. 
Mr Dixon appears to me to have created two separate estates, one 
of fee, and the other of liferent, and to have attached a condition to 
the acceptance of one of them, that the party to whom it is given 
shall accept it in place of legal rights which were otherwise oom-^ 
petent to her. But there is no such condition attached to the ac- 
ceptance of the fee. I am not moved by the cases put by one of 
your Lordships. This is not the case of an offer made by the tea* 
tator, but of a declaration in his settlement, which we must take as 
he has left it, without reference to what he might probably have 
done had he anticipated this result And as to the other suppo6t< 
tion, that Mrs Fisher had died after her right to legitim vosted^but 
before making her election, I should in that case have sustained 



>lo. 10. COURT OP SESSION. ^7 

the dum of her chil^n to both the provision and to her share b£.<l *y»'^8» l, 
Ihelegitiin. ' WlT 

The foUowing interlocutor was pronounced : < The Lords, &c Otbere v. 
in respect of the opinions of the consulted Judges, find, that the othen. 
right of the pursuers, the grandchildren of llie deceased William — — 
Dixon, to the fee of the provisions in their fiivdur in the settle^ V°»^^ 
ments of their said gprandfather, will not be affectable by the re- 
putation by their mother, Margaret Dixon.or Fisher, of her right 
to the liferent of the said provisions; and with this finding, remit 
to the Lord Ordinary to proceed further in die cause as to his 
Lordship shall seem just.' 

• Lord Ordinary, RJUrUm. Act. Dmn of Rie. fBopB,) Fon^ hwy, Alt 

Kttofi ifailil. Akx. Fcr^flhf and 7W jr 'Romomii W. & Agents. IL Cleriu 



SECOND DIVISION, 

' No. XL 24 November 183L 

THOMAS BEVERIDGE and MISS M^LARTY 

offairui 
LIVINGSTONE. 

Reparatiok. — Law-Aoknt. — Proces^. — AUlunigh tiie-borrower of 
a process do not prove its actual lossy yet if there be no reason to 
presume that he has destroyed or conceals itj or that its return is 
within his power, execution of a process-^caption against him wiU 
be suspended, on his Jindiny caution to the extent of the adverse partes 
legal claim under the action, together with the expenses consequent on 
Reprocess not having been duly returned* 

Miss M^Larty brought an action against Iver Borland, setting 
forth, that Murray, her agent, had lent L.550 of fiinds belonging 
to her, to the defender, and subsequently gave her his acceptance 
for the same, payable on demand, and bearing to be on account of 
die defender : That Murray having afterwards become bankrupt^ 
the pursuer applied to the defender for payment; but he denied all 
responsibility for the debt, or authority to Murray to borrow money 
for him : That the trustee on Murray's sequestrated tetate was in 
possession of a correspondence between the defender and Mr and 
Mrs Murray, proving such authority, but refused to deliver it up to 



TO DECISIONS OF THE No. 11. 

H Nov. 1931. the pursuer : That either the defender had gjiveu diifl authority, luid 
^"^V^^ was bound to repay the money, or Murray had been guilty of a fftc^ 
Wm M^Ltttv ^vftud, punishable by another Courts and which rendered it proper, 
V, Ufia g n u ai . before proceeding in that Court, to ascertain whether the said Irar 
Berimd is liable or not : And, therefore, eonduding Hoar pajnent of 
die foresaid pnacipdljnai wmiuibamL TbmhSL and a relative let- 
ter quoted in the sununons were produced by the pursuer. 

The summons and productions were borrowed up by Livingstone, 
the suspender, acting, at the request of Murray, as agent for the 
defender, who was resident abroad. No defences, however, wer^ 
lodged; and the summons and productions not having been return- 
ed to the clerk, a proees8-c^>tion was issued against Livingstone. 
In a bill of suspension of this diligence, Livingstone alleged, that 
^e summons and productions were taken away from his house by 
the wife of Mr Murray, and that he had in vain applied to these 
parties to give them up. But the Lord Ordinary, (Balgray,) ^ in 
< respect, Imo, that the complainer is primarily responsible for the 

* process in question ; 2d0, that the caption has been issued accord- 

* ing to law and practice ; and, QiiOj that the complainer has not 

* offered to find caution to tiie extent of the sums concluded for 

* in die summons of Miss Eliza M^Larty against Iver Boriand, Esq. 

* refused the bill,* &c. < reserving to the complainer to proceed 

* against all whom it may concern, either in a summary mode or 

* by regular process, for his relief and exoneration.' 

Suipendtr's A second bill was presented, in which Livingstone argued, that 

Miss M^Larty could qualify no injury in consequence of the process 



flotbeii^ returned when the caption was issued ; and with r^;ard to 
die supposed loss of the summons, diat was completely supplied by 
a new summons, in the same terms, raised and executed by him, with 
permission of her agenti; and, therefore, there was no principle on 
whidi he could be required to find caution. 

The suspender farther maintained, that the bill of suspension 
ought not to be disposed of till every means was used for recovering 
the process, and, in particular, till Mrs Munray should be judicially 
examined. If, on the other hand, die process were to be held as lost, 
the effect of the caption as a compulsitor for the recovery at the ip* 
sum corpus of the process ceased. The enfcvcement of the diligence^ 
on that supposition, would be absurd, for this would be perpetual 
imprisonment ad factum prsestandutt, while the fact to be performed 
was confessedly impracticable. What other relief the law might 
give was not a question which could be oensidered here. It was 
dear that the party who might be responsible for the less at the 
process could not be subjected per saltnm in the whole conclusions 



No. II. COURT OF SESSION. SB 

<if the actuni. AU tliat could poniUy be denumded against htm H Nov. 18M. 
was, ihat he should be found to have Incurred an equal liability ^"^v^*^ 
with that of the defender, giving him, of oonrse, the benefit of all ^|^ Molrty 
pleas competent to the former* But for ascertaining the suspend- «» UftngMoii*. 
er^a responsibility, whatever it might be, a separate action would be 
requisite ; Wright and Anderson v. OHenly, 8 Feb. 1627, S. jr D. 

For the chargers it was mmoeredt — A party against whom a pro- Chaigcn* 
ceaa-oapiion has been regularly issued can libetate himself from ^*^ 
its effects only in oneof these way8,*-^by productioh of the process, — 
by proving a casus &talis, whereby it has been lost, without blame 
imputable to him,«^or by extbgulshing all interest in the pursuer 
and the derk to the process to insist for execution of the diligence, 
by making payment of the debt^ or otherwise sopiting the cause of 
action ; Act of Sederunt, 1 i Nor. 1681 ; Beveridge's Forms of 
Process, L 250; Home v. Mackenzie and Justice, 4 July 1735; 
FoL DieLj M. 13123; Chatto and Co. v, Marshall, 17 Jan. 1811 ; 
Macmillan v. Gray, 2 Mar. 1620. 

It is absurd to maintain diat the new summons can supply the loss, 
not merely of the original summons, but of the bill and relative letter. 
The suspender's explanation of the cause of his alleged inability to re- 
turn the process, supposing it to be true, is irrelevant. It is to the 
agent who borrows the prooeedings, and not at all to his employer, 
that the derk of the process and the opposite party look for their 
safe custody and return. But Mr and Mrs Murray, in their cor^ 
reqpondence with the suqpender, disdaim all knowledge of the pro* 
ceas, and throw the whole responsibility on him. Besides, even his 
own stat^nent does not exculpate him from extreme negligence 
both in pardng with the proceas, and also in his apparent attempts 
to recover it. 

Neither is it a rdevant ground for staying execution of the dilir 
genoe that a new action would- be necessary for instructing the 
damage occasioned to the pursuer by the loss of the process. She 
is not here seeking any daiinages ; but if the suspender is unwilling 
to submit to imprisonment, hk only remedy is to extingmsh the 
interest to insist in the diligence. 

The Lord Ordinary, Cring^etie, passed this bill, < on sufficient 
< caution being found by the oomplainer, that he will indemnify 
' the nominal charger, Thomas Beveridge, arising from the process 

* referred to in the pleadings not having been replaced in his pos* 

* session ; and akO| that^ the oomplainer wiU pay to the pursuer of 

* that- process. Miss M^Larty, all sudi damages and expensea as he 
^ may be found liable for in any action to be h^eafter nosed against 



«0 



DECISIONS OF THE 



JNo. 11. 



Sttipeodei^t 
Pleu. 



H Not. l8St. « him by tliat lady, on acoount of said prooew riothaviDg; been re- 
BM^dlT^ * tamed to the saideleTk of eourt, and allows to the complainer 
MiM M^Urty * ten days for finding snch cantion.' 

.«* iiviogstone* 

The suspender having reclaimed — The Court was of opinion^ 
that there ought to t>e more inquiry before assuming the foot of the 
loss of the process ; and the suspender having stated, that he in- 
tended to institute criminal proceedings against Mrs Murray, their 
Lordships superseded fiurther consideration of the case. Such pro* 
•ceedings were acfcordingly commenced, but the public prosecutor 
afterwards saw reason to abandon them. The suspender next pre- 
-sented a petition and complaint to the First Division against Mr 
and Mrs Murray ; and both respondents underwent a judicial exa- 
mination. But the Court, upon considering their declarations, held 
that the complaint was unsupported by evidence, and dismissed it.. 



opinion of 
Court. 



The present case being afterwards resumed, LordCringUtie ex- 
pressed an opinion, that, although no one was more strongly im- 
pressed with the danger of impairing the responsibility of an agent 
to return the process or productions borrowed by him, the chargers 
•were attempting to carry the rule too great a length, while they 
maintained that, because the suspender had not proved sudi a cause 
«f the loss of the process as would have relieved him from all re* 
sponsibility, he must either suffer inqirisoninent, or pay the alleged 
-debt, without inquiring into the grounds of it The suspender may 
-be liable for any damage consequent on his not returning the pro- 
cess ; but it would be most unreasonable to hold, that he must submit 
^ go to jail, or sati^ a demand that may have no foundation in 
law or justice. Now, what is the case here ? There is confessedly 
no obligation against the defender Borland, unless he gave Murray 
autiiority to borrow money for him. On the other hand, if there 
exist in the hands of the trustee on Murray's sequestrated estate a 
correspondence between Borland and Mr and Mrs Murray proving 
such authority, which is the allegation in the summons, then that 
^rrespondence may be sufficient to eotablish the debt without the 
aid of the lost productions. Besides, it is stated that the suspender 
lias raised a proving of the tenor of these documents, which would 
eeem to be an easy matter. Furtiier, his Lordship could not enter 
into the idea of the charger's counsel, that, whatever grounds there 
might be for the Court's interference, if the suspender were impri- 
soned on tiie process-caption, these could not be pleaded to the effect 
of staying execution of the diligence. On tiie contrary, he thought 
that the question ought to be considered in the same light as if it 
•had occurred in a suspension and liberation. 



No-U.: COURT OF SESSI014; 81 

The Lord Justice-Clerk said — Their Lordships would proceed M Nor. isdl. 
with very great caution, indeed, in relaxing the rules for the reco- ^•"^y*^ 
very of processes or judicial productions ; and, accordingly, time was ^cJ^TM^iIrt* 
allowed to the suspender to take those steps, of which the result o. Litingstone. 
waa now before the Court His Lordship was of opinion, that the — - 
case was reaumed under more feyourable circumatances for the aua- ^^ " 
pender than when it first came before the Court. He agreed with 
Lord Cringletie, that the question must be looked to as if the party 
were actually in jail, and applying for liberation ; and, upon the 
whole, he now thought that the diligence ought to be suspended* He 
wasy. however, of opinion, that. the caution must be moreampla 
than was required by the Lord Ordinary, and ought to be to the 
full extent of any valid claim whidb the pursuer preferred in die 
original process. 

Lord Glenki. — He formerly thought, that, after all, the process 
might not be lost, and the case was accordingly delayed, that the^- 
suspender might take steps for its recovery. The steps oontem-^ 
plated have accordingly been taken, without, however, affording 
any evidence on one side or the other. But it is quite evident that , 
the process is not at this moment in Livingstone's power ; and the^ 
(Sonaeqnence is, that he must satisfy by damages the obligation 
which the granting of the receipt imposed on him, and which he is 
otherwise unable to fulfil. I see. no propriety in the course prcK 
posed, of Livingstone being imprisoned first, and then liberated 
on the same grounds as are now pleaded by him. • ~ » 

Ijord Meadowbanh, — The proposition from the chair seems to me 
to do ample justice to the parties, and this is all which die pursuer 
can ask. I do not see what interest she has to go farther; for as 
to the punishment of the party supposed to be in fault for not re- 
turning the process^ that would be a question, not for the pursuer 
to insist in, but for. the Court itself to take up, if there appeared 
ground -fyr snch proceeding. 

Hie Qnirt altered the interlocutor, so fiir only as to require cau- judgment, 
tipn, < to make, good to Miss M^Larty all she can legally claim 

< under her original acdon, and on account of die loss of the pro-» 

< cess, togedier with the expenses .she may have incurred there-* 
* anent.' 

Xords Ordinary^ Balgn^ and CruigklM. For Suspender, P. Hoberttant J, Afdtnotu 
Hvgh M*Queenf W. S. AgenU For Cbargeray Dean qfFac. f Hope J Cqumou 
Hwikr, Campbdli' CaOicari, W. S. Agents. F, Clerk. ' 

s. • 



t 



92 DECISIONS OF THE N*. 12. 



SECOND Div&mtr. 

No. XII. 8» Novimber 1881. 

GEORGE SIMPSON awd Otrbiis 

ogcwtt 
WILUAM A. GRAHAM* 

Ramkiho AMD Sale^-^Rwht IN SEcuRiTr.-***^ funking ami 
sab is no bar to the exercise of a power of sale in am herOahk so* 
curiiy preoiaudy completed bjf ix^efhienL 

AuxAND£A Graham b^ng* infeft opoii a bond md diapoaitioii in 
ae€urit]r» for J^4000, granted bj WilUmn &nith, over hia eitste of. 
Land, advertised the property for sale, in virtoe of a clause in tlia 
bond to that effect ; but no offerera having appeared, the ndewaa ad- 
journed to a particular day. In the meantime^ Simpeon and othen, 
aa creditors of WiUuun Sonth'a deceased &thef^ who had done di*- 
Ugence within the three yeais^ instituted a process of ranhing anA 
ssle of the wliole heritable subjects to which the son had succeed- 
ed, induding die estate of Land. 

The usual interlocutor in the ranking and sale, allowing a pveof 
of the common debtor's banknq[>tcy^ ftc, havii^ been pronounced, 
Grahaos, the creditor in the bond, wlio had not previously nade 
appeareneo in the process, presented a reclaiming note, praying 

* to recal the interlocutor; to diuniss the process; or, atall events, 
^ to allow the reclaimer to proceed with the sale, to die effect of 

* his recovering the sums contained in the bond.' 

At the advising, however, the reclaimei's counsel stated, that he 
did not insist in the prayer to dismiss the process, hat only to be 
allowed to proceed with the sale ; which he alleged would be no 
interference with that process ; bat which, at all events, the bail- 
ing of such action afforded the pursuers no title to prevent ; Beve- 
riii^ V. Wilson, 17 Jan. 1829. 

Answered for the pursuers — In the case of Beveridge, which 
was a question between an heritable creditor and the trustee on tlie 
debtor^s sequestrated estate, the majority of the Judges, although 
they held that the trustee could not de jure prevent the creditor firom 
bringing the subjects to sale, qualified their opinions by admitting, 
that if it could be shewn that the sale was prejudicial to the in« 



No. 1«: COURT OF SESSION. «d 

terests of tho whole creditorB, the trustee would be warranted in 25 Nor. 1631. 
interfering. But here the pursuers arer that the exercise of the *^-"^y^*-^ 
power of sale would be exceedingly injurious to the other creditors, oAnvv.*" 
whose rights, being perfiM^ted by diligence within the statutory pe- Graham. 
riod, are preferable to the security in question, which, besides, ex- 
tends only to part of the lands included in the process of ranking. 

hoird Olenke said — It is impossible for me to conceit tkat this Opinion of 
proceeding of the creditcMr in the bond can interfere with the ^^^^ 
ranking a&d sale. It is said that the sale would be injurious to 
the interests of die other creditors ; but this is not the place to dis- 
eoss that matter. Let these creditors try the question in a sus*- 
pensicm and interdict of the proceedings to effect a sale, and we will 
hear them there. In the meantime, the right of exennsing the power 
of sale under the bond is not injured or impaired by the ranking 
and sale, nor at all connected with that process, which was not 
raised till after the creditor's infeftment on his bond. 

The other Jiidges hairing concurred,'— 

The Court qualified the interlocutor, by finding, < that the pro^ judgment. 

< oeedings in the process of ranking and sale hare created no bar 

< to the proceedings of the heritable creditor, in pursuance of his 

* bond and di^)06ition in security, without prejudice to the pup- 
^ sners of said process making any competent application thereanent, 

* and to the heritable creditor his defences as accords.' 

Z«vd Mmckmxk, Ordinarf. For the Piinniflra, SUm, If Aon. J. Ynikh W. 8- 
Agml. For Um Defendwr, a J. BO. 7. 71lor6«ni, W. & Agont. T. 
aerk. 

S. 



FIRST DIVISION. 

No. XIII. 26 Niwember 1831. 

ANDREW WILSON 

agoingt 

JAMES WEBSTER and Others. 

Title to pursue. — A cofgunetjtar is enticed to pmnmB a redyeikm 
of titles in favour of a third party prefudiciai to his right of fee, 
mihout ooncurrence of the other Jtars^ 



64 DECISIONS OF THE No. 13s 

I 

28 Not. .1831. BV dispoBition, dated 8 September 1795) George Tod, the pur^ 

^^'^/^ su^s grahdflEither, conveyed certain subjects^ which he had acquir* 

^^^H^^l^ ed by adjudication from Thomas Goodair^ to ^ Jean Tod, his 

Oth«n.. < daughter, and Andrew Wilson, her husband, (the pursuer's father 

f and mother,) in conjunct fee and liferent, for their liferent use only^ 

^ during all 'the days of their lifetime, and to the chihl or children 

* procreate, or to be procreate of their marriage, in fee/ Afiter the 
death of G'eorge Tod, the grand£Etther, Andrew Wilson, the pur- 
suer's £Bither, obtained from Goodsir, from whom the subjects had 
been adjudged, a disposition to the said subjects, and he then con- 
veyed these subjects to the defender Webster. The pursuer j de^ 
signing himself < eldest son and heir procreate of. the marriage be- 
< tween Mrs Jean Tod, otherwise Wilson, and the said Andrew 
' Wilson senior,' brought the present action for redudog and set- 
ting aside the conveyance by Goodsir to his father, and the con- 
veyance by his fiither to the defender Webster, on the ground that 
Goodsir was not in right of the property at the time, the subjects 
having been long previously a^udged from him, and the title com- 
pleted in George Tod, the pursuer's gtandfietther ; and the said sub- 
jects were conveyed by George Tod to the pursuer's father and 
mother in liferent only, and the fee to their children, and that the 
conveyances under reduction were granted when the pursuer was 
in pupiUarity or minority, and to his great hurt and lesion ; and, 
fiBtrther, concluding to have it found and declared, that the pursuer 
has the only good and undoubted title to the fee of the subjects, 
subject to the liferent of his fitther. 

As a preliminary defence against this action, it was pleaded that 
there were three children of the marrii^e between Mrs Jean Tod 
and Andrew Wilson, viz. a son and daughter, besides the pursuer. 
The daughter was still in life, and no evidence was produced of 
the death of the other son. Under the destination in the disposi- 
tion of 1795, the property conveyed by it would have devolved, 
on the death of the conjunct fiars and liferenters, not on the eldest 
son, but on the children of the marriage equally ; Ersk. iii. 8^ 48; 
Hay.v* Morison, 17 Feb. 1663; Stair,i. 180; Mar. 12,899; Car- 
negie V. Smith and Husband, 10 July 1677; Staivj ii. 536; 
Mor. 12,840. The pursuer, therefore, was not endded to bring 
this action in his own name without the consent and concurrence 
of the other fiars, his brother and sister, or to conclude to have it 
found and declared that the fee of the whole subjects belonged ex^^ 
«lusitely to him. 

The Lord Ordinary repelled the preliminary defence, < reserving 

* all questions as to the effect of the clause in the deed libelled on.' 



No. 13. COURt OP SfiSSlttN. 6S 

AimI to tUb jndgiienttbe Coicrf adhered, onadyising a redaiming f$ Nov. T831. 
sole for the defender. 



Lord Bai^rmg wem of opinion, d»t it ttouM be proper that the we^rer'ond 
other oUldreii dMHiUI be made partiee to the action, but the pniv Others. 
Mier cottkL ttot ccnnpel tbem to beeome pareuen(. It was in the power judraienu 
of the defender, however^ to edU them into Coutt. Opinion of • 

Lomd aWiei eoasiderdl the interkeutor (tf the Lord Ordinary ^"""^ 
well feonded. If the eliher children were to refnse their concur- 
reiioe^ and the pmsuer coald not compel them to giye ft, was he 
therefore to be cut out of his rights ? 

IgOtd Pf^uideni thought enoi^h had been done by ihe reserva- 
tion in the Lord Ordinary's interlocutor, which reserved any ques- 
tion SB io the efiect of the daose in tiie dispoidtion libelled on, or 
the ahare of the subjects to which the pursuer might tdtiinately be 
entitled* 

Lard M^it^Brmg, Ordimrv. Act. BonnU. Jamm Jol^, Agent. AlL CWw- 
viffham. Qm. HeggU, W. S. Agent. S. Clerk. 

T* 



FIRST DIVISION. 
' No. XIV. W N0f>mber 1831. 

JOHN SCOTT 

against 

Mrs MARION BAILLIE and Others. 

Process. — Suspension of a cliarge on the decree of an tJiferisrjt 
' /or expenses imooaaqmtenty tdken the quesHm of expenses catmet be 
judgsi, <f iniepeadenjOjf if the merits. 

Scott, as agent for the Paisley Union Bank, having disooonteil 
certain biUs drawn by Rodger and Bailiie, wood-modiants in 
Hamilton, was obliged to protest them for non-payment, and after- 
wards raise diligence upon them. He then used arrestments in the 
kands «f John Reiwat, whom he supposed had funds belonging to 
Itodger and BaiHie, which he followed up by a process of ferth- 
ccmnng before the Sheriff of Lanarkshire, in which he called 
Rowat the arrestee, Rodger and Baillie as a firm, and Rodger as 
the surviving partner. He also called Mrs Baillie and her children, 

VOL, VII. E 



66 



DECISIONS OF THE 



No. 14. 



Scott o. 
Baillie and 
Others. 



20 Nov. 1831. the widow and children of the other partner Mr Baillie. It was 
pleaded for the widow and children, that the company of Rodger 
and Baillie was dissolved by Baillie's death, three years before the 
date of the bills founded on, which defence was sustained, and the 
defenders assoilzied, with expenses. A decree for the expenses hal- 
ving been extracted by the defenders, and a charge given, Scott 
presented a bill of suspension, in which he stated, that he was in 
cursu of raising a process of reduction of the decree. The chargers 
objected to the competency of the suspension, as the decree on the 
merits was not brought under review, ^md it was impossible to judg« 
of the question of expenses alone without considering the merits. 

The Lord Ordinary, (Lord Corehouse,) refused the bill, with 
expenses, and added the foHowing note : ^ A suspension of a de- 

* cree of an inferior judge, for expenses of process, is not neces* 

< sarily incompetent, although the decree is not brought under 

< review on the merits, for cases can easily be supposed where 

* the question of expenses is independent of the merits. But 

< where, as in this case, it is impossible to judge whether expenses 

< have or have not been improperly awarded, without forming an 

< opinion on the merits, and the merits are not, and cannot be 

< brought under review in the suspension, it does not appear that 

* the diligence ought to be staid upon the ground that the bus* 

< pender states, that he is in cursu of bringing an action of redue- 

< tion.' 
A second bill of suspension was then presented, and along with 

it was produced a libelled summons of reduction ; but Lord Craigie 
refused this bill, with expenses, * upon the grounds stated by the 

< Lord Ordinary on advising the first bill.' 



Judgment. 



Opinion of 
Court. 



The suspender then presented a reclaiming note, but the Court 
adhered. 

Observed on the Bench. — The opinion expressed by the Lord 
Ordinary on advising the first bill is a sound opinion. Cases may 
occur where the question of expenses may be independent of the 
merits, but that was not the case here. The suspender had him- 
self to blame in not having brought an advocation before the de- 
cree was extracted. 



Lords Ordinary, Craigief Corehouu, Act. Jameson, WoAerqwm jr Mlaek, W. S. 
Agents. Alt, Dean o/Fac. {Hope. J F. HamiUon, W. S. Agent. S. Clerk. 

T. 



No. 16. COURT OF SESSION. 67 



FIRST DIVISION. 

No. XV. 26 November 1831. 

JOHN MACGILL 

against 
JAMES MELVIN. 

Process. — Act op Sederunt, 11 July 1828, § 72. — A party ha- 
vififf allowed judgment to go out agaimt him hy the Lord Ordinary 
fir not lodging a paper in tlme^ is entitled to be reported upon a re^ 
claiming note to the Courts with the paper required^ and on payment 
of modified expenses^ although he had been previously reponed against 
a decree in absence. 

In an aedon at the instance of Macgill v. Melvin, for pajrment of 
a business account, decree having been pronounced in absence, the 
defender was reponed, upon a reclaiming note, in terms of the act 
of Sederunt. Afterwards the defender having failed to lodge an- 
swers to a condescendence within the time prescribed, ihe Lord 
Ordinary, < in respect the defender James Melvin has failed to 
^ lodge answers to this condescendence within the time limited, re- 
* mits the business account libelled to the Auditor to tax and re- 
< port, previous to pronouncing decree.' The defender presented 
a reclaiming note, craving to be reponed in terms of the act of 
Sederunt, and at the same time produced the answers to the con- 
descendence. « 

It was objected for the pursuer, that the defender having once 
been reponed against a decree in absence upon a reclaiming note, 
it was not competent to apply to be reponed against a second vio* 
lation of the provisions of the act of Sederunt, by neglecting to 
lodge a paper in time. If this were sanctioned, it might lead to 
those very delays which it was the object of the act of Sederunt to 
prevent 

In answer to this objection, the defender founded on the 57th 
and 72d sections of the act of Sederunt. 

The Court unanimously held, that, under the 72d section, a party judgment. 
was entitled to be reponed against a decree pronounced for not 
lodging a paper, if he presented a reclaiming note, and produced 
the paper ordered within the reckdming days, and upon payment 
of reasonable expenses. They therefore repelled the objection, and 

e2 



68 DECISIONS OF THE No. 16. 

26 Nov. 1831. remitted to the Lord Ordinary to repone the defender, upon pay- 
j^^y^'^ ment of such expenses as his Lordship might consider reasonable. 

Mdvin. 

Lard Newton, Ordinary. Act Jamu Andenonu Party^ Agent. Alt. Mar- 

shall, Andrew HUl, W. S. Agent. H. Clerk. 

T. 



FIRST DIVISION. 



No. XVJ. 00 Novemb&t 1831. 

JAMES MUIR 

uffiivnxt 

JOHN AND THOMAS BRAIDWOOD. 



Process.'— Bill of Exchange. — The drawer if a biUi inanacticm 
for payment against the acceptor^ having set firth in his gumnunu^ 
^ that Cohere thepurmery by bOlf dated 2fi February 1826^ drawn 

< by himnpan and accepted by ^* ^c.^ whereasy infact^ the biU teme not 
signed by him as drawer^ hd by another person^ under his aythori^ 
although diis was not stated m Ae lU^lj-^hetd, that the puirsuer 
andd not obtain decree in his favour under this acttan^ tcAtcA was 
accordingly dismisaedy < reserving to the pursuer io brikg his action 

< an tiie biU in a con^teni shepe** 

The advocator Muir brought an action before the Sheriff-couit of 
Lanarkshire, against the respondents John and Thomas Braidwood^ 
(as representatives of John Braidwood, deceased,) for payment of 
a bill for L.200 ; and setting forth, ^ that where the- pursuer^ by 

< bill, dated 22d day of February 1826, drawn by him upon, and 
' accepted by John Braidwood, mason in Uddi&gston, now deceas- 

< ed,' &c., and concluding, that the defenders, as representing the 
said John Braidwood, should be decerned and (wdained to make pay* 
ment to the pursuer of the said sum of L.200. 

The l^eriff-substitute, after some procedure, pronounced the 
following interlocutor : * In respect the pursuer has admitted that 

< his name, as drawer of the bill in question, was not written by 

< himself, but by the acceptor ; that the pursuer has not alleged 

* that his name, as drawer, was so written by his, the pursuer's, pro- 

* curation, but that, on the contrary, the summons libels the bill, 

< not as signed by procuration, but by the pursue himself; and iai 



No. 16. COURT OF SESSION. 6d 

* respect that a recovery on the bill so libelled on in this aotion 30 N©v. 193?. 

♦ ooold ilol be pled in bar of another action on the same bill, aver- ^/^y^A 
^ring it to have been drawn by procuration ; on the authority of^oods. 

< ike dedsion in the case of Jacks(»i and Husband v. Williamson and 

< H^iderson, (9 Dec 1825, S. jr D.) dismisses the action, assoilaies 

< the defenders, and finds them entitled to expenses.' 

In an advocation, Muir pleaded — 

I. It is not necessary to the validity of a bill that has been duly Pursuer*s 
accepted, that it should be subscribed by the drawer. On the 
contrary, the acceptor's obligation is complete by his acceptance, 

and the person who appears to have been intended as the payee, 
or to stand in the payee's right, is entitled to demand payment, 
even without the drawer's name being filled up. 

II. In the biU in question, there can be no doubt that the pur- 
suer, whose name is mentioned in the bill as drawer and payee, 
and who is, and has all along been, in possession of it, was truly 
the drawer, and the party to whom the bill was payable. The cir- 
cumstance of his name, as inserted in the bill, having been written 
by a third party, who was also writer of the bill, cannot make the 
bill less available than if no such insertion of the name had beea 
made. If the bill would have been good had no sueh insertion 
taken place, it cannot be injured by such insertion, which was not 
meant to represent the drawer's signature, but, according to a very 
common custom in the country, was merely intended to point out 
more distinctiy who the drawer was. 

III. Even assuming that the insertion of the name of the drawer 
had been necessary, and that the name inserted in the bill had been 
Intended to represent his signature, it became his signature to 
every legal effect by his adopting and homologating it, and the ac- 
ceptor has no right to refuse payment of the bill, on the ground 
that the name of the drawer is not inserted in his own handwriting. 

IV. There is nothing in the form of the summons, or in the man- 
ner in which the action has been brought, to preclude the pursuer 
from recovering on the bill against the defenders, as representing 
the acceptor. It is described in the summons as a bill drawn by 
the pursuer, which It truly was. There is no statement in the 
summons that the insertion of the name was in the drawer's hand- 
writing, which was not necessary to his being truly the drawer of 
the bill. On the contrary, it is expressly stated on the fiice of the 
record, tiiat though the bill was drawn by him, his name, as it ap- 
pears in the bill, was inserted, not by himself^ but by the writer ot 
the bill. 



70 



Decisions of the 



No. 16. 



Muir V. Bnid- 
woods. 

Defenders* 
Plcti. 



30 Kor. 1831. Pleaded for the defenders — 

I. Where, in an actioii for payment of a biU, the summons li- 
bels the bill as a bill subscribed by the apparent drawer himself, 
and not per procuration of him, or where such is the import of the 
summons, and it appears, or is admitted, that the drawer's name 
was not subscribed by himself, the action cannot be maintained. 
In raising action on a bill where the drawer's name has not been 
subscribed by himself, but by another with his authority, it is ne- 
cessary that the libel should expressly bear that the bill was so sub- 
scribed* 

II. Where an action is raised for payment of a bill in the above 
form, and the bill is challenged as false and forged, and the pursuer 
in answer denies that the bill is false and forged, but states that 
the subscription of the drawer was not adhibited by him, but by « 
another person, the bill is not a probative or valid document, and 
action on it cannot be maintained ; Mrs Margaret Jackson and 
Husband v. J. Williamson and W. Henderson, 9 Dec* 1825. 

III. Even if the form of the summons were not fatal to the ac- 
tion, the &ct that the subscription of the drawer was not adhibited 
by himself, would, under the circumstances, and particularly where 
it is not averred on the record that the name of the drawer wa» 
adhibited by his direct authority, or per procuration of him, afford 
sufficient ground for dismissing it; Jackson v. Williamson and 
Henderson, 9 Dec. 1822, ut sup. 

The Lord Ordinary repelled the reasons ^ of advocation, remitted 

* simpliciter to the Sheriff, and decerned, and found tlie advocator 

< liable in expenses.' — * Nate, The Lord Ordinary has decided the 

* case on the authority of the decision of the Court in that of Jack- 

< son. It does not appear to him that there is any such difference 

< in the circumstances of the two as to justify a different judgment, 
^ and that the Sheriff was warranted in dismissing the action.' 



Opinion of 
Court* 



Muir having reclaimed^ Ijord Bcdgray said — That the moment a 
bill of exchange was brought into Court, it ought to be in a fair, ne- 
gotiable and marketable state, by having the signature, or what the 
law held as equivalent to the signature, of the drawer attached to it. 
But all that the Court had here was a bill, bearing to be drawn by 
Muir, and accepted by Braidwood, whereas it was admitted by the 
pursuer that it was not signed by him as drawer, as libelled in the 
summons, but by some other person under his authority. But quo- 
modo constat, from the evidence before the Court, that the pursuer 
was the James Muir designed in the bill. There might be fifty 
people of the same name. It was no doubt true, that he might es- 



No. 16. COURT OF SESSION. 71 

tabliah his right to the document by evidence <^ various circum- SOKot. 1831. 
stances, such as by proving that it was signed by his procuration ; ^•— v-"*^ 
and he might have a good claim against the defenders, but not oer- ^"^ 
tainly under the present summons. The principle of the 



was plain. In order to entitle him to a decree, the fmner of an ^^"^ "^ 



action must, in his summons, set forth a fvsper title, which in the 
present case he has nBt ^ane. 

Xm^ Gmg/te expressed a doubt, whether the judgment of the 
Lord Ordinary rested merely on the form of the libel ar flonmons, 
as not properly expressing the facts of die caee ; or whether it im- 
ported a finl aeqaiMuioe {ran the ^om. But even in the first of 
these views he would consider the objection as too critical. The 
words of the summons did not import that the bill was in the draw- 
er's handwriting, which was not necessary, nor even that the sub- 
scription was his, because the bill might be subscribed by pro- 
curation for him by notaries, a circumstance which the pursuer was 
not called upon to mention in the summons ; and if the bill had been 
written by the acceptor himself, or by another person, and at the 
time known to be so by the acceptor, which was to be presumed 
from the acceptance itself, more strictness seemed to be required 
tiian was agreeable to our forms, or to the nature of such transactions. 

The Lard President and Lard Gillies concurred in the opinion 
delivered by Lord Balgray. The pursuer might have a good claim 
against the defenders, but not under the present action. 

Their Lordships therefore adhered to the interlocutor of the Judgment. 
Lord Ordinary, ^ reserving to the pursuer to bring his action on the n 
* bill in a competent shape, and to the defenders all objections 
< thereto, as accords,' &c. ; of new found expenses due, &c. 

Lord Conhoiae, Ordinary. For the Advocator, More, MontaUu W. A. O, jf 

IL ElHs, W. S. Agenu. Alt. Jam^ton, Wood, A. Fkmangt W. S. Agent. 
JD. Clerk. 

c. 



79 DECISIONS OF THE No. .17. 



FIRST DIVISION. 
No. XVII. 30 Naomher 1831- 

JOHN BECK 

offainst 

WALTER LEARMONTH and Co. anj> JOHN LEAR^ 

MONTH. 

TaiBNNiAi* Prescription. — Stat. 1579, c. 83. — A merchant ui 
London havioffy in consequence of orders given to his traveller^ for-^ 
warded tu)0 parcels of goods to a party in Scotiandt and^ qftar an in^ 
terval <f cutout two yearsj having forwarded a third parcel^ onanor^ 
der given to a difi^^^nt travellery which yw paid for soon cfter its 
deliveryf-^heldi in an action brought for pa^jfrnent of the tl90 former 
parcels^ more than three years after their delivery ^ that the oftuVn. was 
prescribed, and that the prescription toas not interrupted by the suh^^ 
sequentfumishingj which, it was alleged by t/ta pursuer tf^rvwd oue 
cwrrent^aocount between the parties, so as to prevent prescription from 
running antecedently to the date ^the last furnishing. 

In April ac^d iu August 1823, the pursuers, Alexander Lear- 
mopth and Co. of Ixuidoi^ forwarded two parcels of goods to th0 
defender, John Beck, (a ooachiuaker in Dumfries,) in condeqnenca 
of an order given by him to their then ttaveller, Jolinstonef who, 
in February 1825, wrote for payment in the following terms : < I 

< have taken the liberty of inclosing a bill for your aeceptanoe, die 

< amount of your account with Messrs Learmondi and Company,' 
&c. < Have the goodness to return your acceptance in a post or two 
* to* them.' It did not appear whether any answer was returned to 
this letter, or what became of the bill referred to therein. In March 
following, another parcel, to the amount of L.19 : 9 : 6, was also 
furnished, on an order given to Appleby, then the pursuers' tra- 
veller. A demand for payment was made by Appleby in May 
1826, and in September the amount was paid by Beck to a person 
in Dumfries, who was authorised by the pursuers to receive it. 
In December Appleby wrote to him, saying, ^ When at Dumfries, 

< you informed me that Messrs Walter Learmonth and Company 

< had empowered some person at Glasgow to obtain the amount of 

< their account, L.19 : 9 : 6, and that you had paid it to some person 
^ in Dumfries.' 



No. IT; COURT OF SESSION. 73 

In 1827 a demand wa3 made by the pui^uers against Beek for 30 Nor. !83t. 
payment of the two fonner paroelii amountii^ to L.35 : 6 : 6, in ^"^V^ 
the following terms : < You cfe^n determined «ot to understand ]^raonA*^^d 

< the state of the aooount sent yoi^ being for goods sent you, by Co. 
^ orders through Mr J. H. Johnstone^ as under, and which we have 

< never received payment of. You paid Mr Eraser for goods furnish- 
« ed you by orders through our traveller, Mr Appleby, L.10 : 9 : 6^ 
« which is at your credit. We will wait untU ooiurse of post, giving 

< our attorney final orders to proceed, &fi, 

* lesa. April la. To goods, - - La? 7 Q 

« Aug. 86, Do. * - - 7 9 6 



'ii F> I 



< L.95 6 6 
< 3^ interest! - •* 8 15 



iWW«*^ 



« L.99 1 6' 
Upon pigment being refused^ Learmontb and Company brought 
an action agfiinst Beck before the Sheriff of Dumfriesshire, con- 
cluding for payment of the amount, ^ a9 the balance of an account- 

< CQirent betwixt the said Joseph B^ok ^nd the complainers, for the 
' prices of goods furnished by them to him, down to the 10th of 

< March 1B25.' 

In defence it was fteaded^^ThsA the daiss for the goods furnished Defendert* 
to the order of J^nstone In 1888, (five years previous to the ^**"* 
raising (tf the present action,) was prescribed, and resting-owing 
was denied. The furnishing made to the order of Appleby in 1825 
was a separate transaction, and quite distinct from the furnishings 
Wfifi^ to the ordel- of Johnstone* These furnishbgs must also 
bt presntned to have been paid for separately at the time ; and the 
pmrsiiers are not now entitled to connect them, as it they had ever 
farmed items of a genersl aeoountrourrent between the pursuers and 
the defender, for the obvioua purpose of excluding a competent de-< 
fenc«. Besides, the pursuers having given orders to their agent in 
IflSM to teosver payment of the aooouot for the fornishinga in 
iaa&, Without any toferenea to the previous furnishings in 1828^ 
shew dttt these fuj^aishings had been previously paid for. 

It was a]Mt0^fvif-*^That althwgh the credilnnde of the ^econnt was Pursuer's 
of course aHertd by ^ payment in 1806, the debit^ide remained ^'^®"^* 
asfiDrmeriy. The rule of tke kw was, that the triennial preserip- 
tioB runs only from the date of the last article in the account be-^ 
twcen the parties, and that < the furnishing of any one new article 
' within the three years interrupts the prescription, and preserves 



74 DECISIONS OP THE No. 17. 

^W^* * the currency of the account ;' Ersk. Hi. 7. 18. According to this 
Beckv^WfOter ^^®» ^^ prescription for the furnishing in 1828 was interrupted 
LearraoDthaDd by the furnishing in 1825 ; and when the prescription was thus le- 
gally interrupted, a new course must run fi^m the date of the inter- 
ruption, and there is neither principle nor authority for maintaining 
that the effect of the interruption may be defeated by a subsequent 
payment of any article in the account, unless the accounts between 
the parties were dosed as at that time, and a new account opened, 
or unless there had been a ready-money paymcui fa r any pariicdlT 
article subsequently purchased. , But here the articles were sold on 
credit, and entered in the account against the defenders ; and it 
could not therefore be maintained, that by paying the last article in 
the account, the defender created a good legal defence against any 
daim to the preceding articles, founded on the triennial prescription, 
which, but for such payment, would not confessedly have applied. 
The Sheriff-substitute, 10 November, < sustained the plea of pre- 

< scription ;' but the Sheriff-depute, upon appeal, < altered the judg- 

< ment appealed from, repelled the plea of prescription, and decerned 

< in terms of the libel, and found expenses due.' 

In an advocation, the Lord Ordinary, &c. < In respect it is 
' proved, under the hands of the pursuers, that the articles fur- 
' nished by them on the order to Appleby, in March 1825, were 
^ paid by the defender, recalls the interlocutor of the 16 March 

< 1830 ; remits, with instructions to the Sheriff-depute to return 

< to the interlocutor of the Sheriff-substitute of the 10 November 
* 1820, and decerns ; finds the pursuers liable in expenses.' 



Judgment. The Court adhered. 

Cou^ ^^ iorrf Balffray said — There was no doubt that the last furnishing in 
1825 had been specifically paid, and the account settled. With re- 
gard to the previous furnishings, it was to be observed, that the tri- 
ennial prescription was founded on a presumption of payment ; and 
in the present instance this presumption was fortified by the evi- 
dence in process. His Lordship was much moved by the letter of the 
17 February 1825, in which Mr Johnstone, (through whom the order 
for the two first furnishings was given,) in demanding payment there- 
of, inclosed a bill for Beck's acceptance, and said, < Have the good- 
< ness to return your acceptance in a post or two,' &c. It did not, 
it was true, appear what had become of the bill here referred to ; 
but it was impossible to believe that no new demand would have 
been made for years, if the bill had not been returned as desired. 
At all evetits, the pursuers had opened a door for the plea of pre- 
scription, and had, by their conduct, corroborated the legal presump- 
tion. 



No. 17. COURT OF SESSION. 75 

Ijord Craigie observed — That the difficulty here arose from the 30 Not. 1831. 
employment of two separate agents in forwarding the goods, and ^^^^y^i^ 
receivin&r payment As between the sellers and purchasers there ^^ ^' ^^^^. 

o r J r ^ Learmontb ftod 

was but one account, and of this account only a part is proved Co. 
to have been paid ; and unless for the long delay, on the part of the •'"^'"^f 
former, in making a demand for the apparent balance, there might Coort. 
have been a doubt as to the effect of prescription. Still his Lord- 
ship could not but entertain a suspicion that payment of the sums 
in question had not been made ; and he would wish to learn thie 
result of the oath, which might yet be required from the defender, 
referring to his books and other circumstances. 

Ltord Gillies thought that prescription clearly applied. His Lord- 
ship, however, thought that it was a question of pure law, and not 
affected by the particular circumstances of the case. The law was, 
that a merchant's account prescribes in three years, and that pre- 
scription runs only from the last article contained in the account ; and 
in order to bring the present case within this rule, it was said that 
the furnishing in 1825 formed the last article in the account, and 
therefore interrupted the prescription. But it appeared that this 
was a separate transaction, and it was admitted that the furnishing 
was specifically paid for. How could it be said, therefore, to form 
an article of an account-current between the^ parties ? This would 
lead to dangerous consequences. Suppose, for instance, that a per- 
son who had been in the habit of running annual accounts for wine, 
and which were for some years annually discharged, should after- 
wards discontinue this practice, and for a course of years should pay 
in ready money for such purchases as he should make ; it would 
be attended with serious consequences if, on a demand for payment 
of the previous furnishings on credit, to which the triennial pre- 
scription applied, die wine-merchant should be allowed to defeat 
this defence, by alleging that the prescription was interrupted by 
the subsequent furnishings, which formed articles of the same ac- 
count-current between the parties, although some of these articles 
might have been afterwards paid for« They still, it might be argued 
according to this doctrine, formed but one account; and as prescrip- 
tion could only run from the date of the last article, it could not 
therefore apply. JRnt this would be a dangerous doctrine, and 
ought not, in the present case, to be sanctioned. 
The Lard President also concurred. 

Lord CorehoMU, Ordinary. Act. D$an of Fac. (Hope^J OilUes, Bob. WM, 
AgtnL Alt. SheMt Lumaden, John Wright, W. S. Agent. D. Clerk. 

c. 



76 



DECISIONS OF THE 



No. 18. 



FIRST DIVISION. 



No. XVIII. 



30 Jthvemier 1831. 



MARJORIBANKS 
HELEN AMO& 



Suspender's 
Pleas. 



Aliment. — Parent and Child. — Sequestration. — Tbe claim 
ingainst afatherx fit aUmeni to his natural ckUd^ ii not cut off by 
thefather^s didduarge wader a sequestration. 

Marjoribamks, the £ELther of a natural child by the chargper Amos, 
gpranted an obligation, in January I8289 to pay her L.20 per an- 
num for the maintenance of the child, (which was both blind and 
dumb), during its life, or so long as it should continue blind. Soon 
after thb obligation was granted^ the suspender's affidrs having be- 
come embarrassed, he was sequestrated ; but he afterwards, with 
ooneurrenoe of the requisite number of creditors, obtained his dis< 
charge from the Court in November 1880. Having failed to pay 
the aliment of the child, the charger raised an action before the 
Sheriff, for payment of two years' aliment, due in January 182^ and 
January 1830. In defence it was ple^uled, that he had not the 
me^s of paying the aliment ; that although he had succeeded to an 
entailed estate, yet it was so burdened 1^ ta yield him nothing. It 
was farther pleaded in the inferior court, that in so fiir as the sum 
dauped by the pursuer exceeded a reasonable aliment, it was strucJc 
at by the discharge in the sequestration. The Sheriff pronounced 
aA interloouUur, finding, < that, in the <drcumstances of the case, the 
( sum of L.SM) pw annum is not exoessive as an alimentary provi- 
^ sion for the ohild in question, particularly as the child is both 
*■ bHnd and dumb, and, therefore, is altogether helf^ess, and requires 

* 1^ very unusual degf ee of attendance, and as the aliment does not, 
^ as in the ordinary case, cease with childhood, but must continue 
^ during youth and oianhood, if the child survive ; and therefore 

< decerns against the defender in terms of the libel ; finds him 

* liable in expenses.' 

The defender sui^ended £( enlarge given upon this decree^ and 
pleaded — That having been discharged by the Court, in terms of the 
bankrupt statute, < of all debts contracted at or prior to the seques- 

< tration,' this debt, whickwas contracted before, the letter of obli- 



W6. \& COURT OF SESSION. 77 

gBtion being dated prior to ik^ teq^estration, mint be held as in* SO Noy. 1831. 
ringed in the e^eneral diseharchs* The obliffation founded on was ,«^^TT^ 

• MarJonbaBks 

a debt <M>nttMted prior to the sequeMmtbn. The daim of the re* v. Amot. 
spondetit, to the extent of ^dasonable aliment for the child, was a 
<^lii of debt For which She waB entitled to be ranked upon the sus- 
penders seq^estttnted estate ; and it is not of importance wh^her 
such claim arises from the suspender's legal obligation to contribute to 
the support of hb child, or from the missive letter whieh he granted 
to that eiibct; Betl i. 643; fiialtebtyii^ t). Dunlop, 17 Feb. 
1814. A creditor entitled to be ranked at all, is equally entitled to 
be ranked for a future debt as for a debt already due ; and, there- 
fore, the respondent was entitled to rank, and might have ranked, 
not merely for the arrears, but for the future annuity. Every debt 
which affords a good claim to be ranked may be effectually extin- 
guished by the dischai^ of the bankrupt under the statute. 

Jngioered — The aliment claimed is what is due since the segues- Charger's 
tradon ; for what was due before that, besides some other claims ^^*^^ 
which she had, the respondent raidred on the suspender's seques- 
trated estate as an ordinary creditor. But this is a claim not aris- 
ing merely from a civil obligation) but ex jm>e naturae, which a dis- 
charge under the bankrupt act could not extinguish. 

The words Of the discharge cannot in^port a dischaige of future 
dlment. Each year's fdiment does not become a debt that can be 
operated v^n until it is due ; so the aliment sued for since the se- 
^piestration cannot be said to be a debt contracted at or previous to 
dve sequestmtionv Besides, the natural obligation to aUment still 
remains ; and if the respondent had ranked in the sequestration for 
the full value of the future aliment, or accepted of a sum in lieu 
thereof, stiil the suspender's obligation to support his diild remain- 
ed entire; abd as the respondent has no daim founded in herseL^ if 
the child wlis removed from her custody, he would still be obliged 
to aliment it, dotwitfastanding any settlement with the respondent 

Lmrd FuUerton refused a first bill; and on a second bill being 
presented, it was also refused by Lord Craigio) who added tike fol- 
lowing note : * The Sheriff has most properly found, that the ali- 

< flleot claimed by the charger, and vouched by the suspender's 
« ObUgatibiH was not more thaa Was truly due antecedently ex jure 

< natnrse ; and to s«ch obligations the bankrupt statutes, which re- 

< kte to ordinary contracts, cannot apply/ 

The suspender reclaimed^ but the Court unanimoQsIy adhered. Judgment 
Observed on the B^m^A^— The claim does not rest upon the letter 



78 



DECISIONS OF THE 



No. 18. 



Marjoribanki 
V. Amos. 

Opinion of 
Coart 



SO Nov. 1831. of agreement, which can be considered nothing more than an ac- 
knowledgment of the paternity, and an admnnon of his liability ; 
but the claim arises ex jure nature, which would remain good, al- 
thoi^h the written obligation had not been given, or had been de- 
stroyed. The natural obligation of a father to aliment his illegitimate 
child can never be cut off by a ^Bscharge under the bankrupt act. 



Lords Ordinary, JFVi&ffoii, Craigie» Act Shme, . 

Agenta. Alt Dem ofF«c (Hop^) J». MUkr. 
IL aerk. 



Scott jr Bffmer^ Solidton. 
Aw. Ckmn^ W. S. Agent 

T. 



FIRST DIVISION. 



No. XIX. 



2 December 18S1. 



JAMES SIM 

against 

CHARLES CLARK. 



Reparation. — Law- Agent. — Circumstances in which a lauMXffentf 
who fiad granted a feu of lands belonging to himself^ and had been 
employed^ when making out the disposition^ to create a real burden 
on the subject^ in favour of a creditor advancing money for erecting 
a building upon the ground feued^ was found liable in damages to the 
creditor for not having properly secured his interest. 

In 1811, certain persons in and near Cupar- Angus, of the Asso- 
ciate Burgher Synod of the Secession Church, formed themselves 
into a society for public worship, and appointed some of their mem- 
bers a committee of management In December of that year this 
committee entered into a minute of sale with the defender, a writer, 
by which they feued from him a small piece of ground in the village 
of Cupar- Angus, for the purpose of erecting a chapel or meeting- 
house on it. In 1815, before the feu-disposition had been granted, 
the committee applied to the pursuer (who had been a member 
of the congregation,) for a loan of L.200 to complete the church ; 
and the pursuer having agreed to advance the money on receiving 
proper security, the defender was instructed, when making out 
the feu-disposition, to prepare the necessary deeds in favour of 
the pursuer. The defender, as he alleged, informed the commit- 
tee, that the most effectual mode would *be to take a disposition 



No. 19, COURT OF SESSION. 79 

to themsdvesy on which they might be infeft, and then to grant 2 Dec 18SI. 
an heritable bond to Sim, upon which he should be infeft ; but this ^>^y^^ 
(he said) was objected to on the part of the committee, on the ground ^*™ •• ^^^ 
of additional expense. The defender denied that he was employed 
personally in the matter by Sim ; but by the evidence of one of the 
committee, the importof what was said by the pursuer to the defender, 
at a meeting between the parties, was, that he < hoped the defender 
' would take care that all the papers were right, as he had no other 
^ agent in the business.' No bond, however,. was granted to the pur- 
suer ; but in the feu-disposition granted by the defender, in favour 
of the committee of management, there was the following clause : 
' And as we have been accommodated by James Sim, farmer at 

< Whiteby, with the sum of L.200 sterling, to enable us to build • 

< the said church, it is hereby declared, that after the feu-duty pay- 
^ able for said ground, which is declared a prior and preferable bur- 

< den, the said sum, and the legal interest from the date hereof, and 

* whichshall be payable to the said James Sun, his heirs and assignees, 
^ (but the principal, which cannot be demanded for two years after 
^ this date,) shall also remain a real burden affecting the said sub- 
^ jects, and, as such, is appointed to be engrossed in the infeftmeilt 

* to follow hereon.' This writing, however, was not subscribed by 
the members of the committee. The precept of sasine was in these 
terms : < For infefting the said committee, or any succeeding com- 

< mittee to be elected by the said Associate Burgher Congregation, 

* but always with and under the burdens, declarations and reservations 

< before expressed,'and particularly the said feu-duty of L.4, 4s. ster- 

< ling, and burden of L.200, and interest from the date hereof, pay- 

< able to the said James Sim and his foresaids.' The deed, however, 
contained no personal obligation on the part of the borrowers for 
the repayment of the L.200, nor was there a power of sale inswted 
in favour of the pursuer in case of non-payment 

The members of the congregation having joined themselves to 
another in the same village, the church was shut up, and the value 
greatly deteriorated, no part of the L.200 having been paid. to the 
pursuer, and considerable arrears of interest being also due. 

In 1828, the defender cited the committee in an action of declara^ 
tor of irritancy ob non solutum canonem, and obtained decree (12 
June) ; but in this action the pursuer was not made a party. 

Thereafter the present action was raised by the pursuer nominally 
i^iaiast the committee of management, but chiefly against the de- 
fender Clark, for payment of the L.200, with the arrears of interest 
due, in which it was set forth, ^ that it has been thus through the 

< culpable negligence or ignorance of the said Charles Clark in not 
.*. preparing proper deeds, containing personal obligations on the 



80 



DECISIONS OF THE 



No. 19. 



Siln V. ClariL 



2 Dec. 1831. « cDnmitt^ it ttiattag'^iMiit, and m tte Mpreseiltiitfv<68 of the eon- 

* gfegatioft at large, bimKfig the whole mefiibers theteof for the 

* paym^i; of the saM bond and interest, and eonveying t4) the pnr« 

* 8uer, by a falid deed or deeds, oont^ning all tlie nsiial and ne^ 

* oeiMry clauses, the piece of gtound^ and chapel or meetlng4ioi]S6 

* themselv^ in security, ti^at the loss and damage to the pursuer 
< hsis atiscM ; and the said Charles Claifc is thereby, in the event of 
** ^ pursuer not making good his daim from the eaid o6mmllliee 
^ of management, in regaid of their non-liability orinability) SaMe 
^ and boufid to indemnify the pursaer for sach loss and danli^,* 
&C., and concIu^Bng that he should be ftund liable in payment 



Defender*! 

Pleas. 



Pursuer's 
Pleas. 



Judgment. 



In defence it was jofecufe^f— That die defender had transacted 
properiy alt the business tliat ipus required to be done by his pib- 
per employers, ^the committee of msnagement^) and they ihade 
no oompfaint ts^inst him ; tmd that not having been employed by 
Ae pursuer in the business, he Wb» not responmUe to him : That he 
himself had suggested that the committee should fimt talce infeft- 
ment) and then grant an heritable bond to tlie pursfiter ; aiid it tvus 
tlie interest of the defender that this should Imve been done, as his 
own emoluments would tiieneby have biien increased ; but that tftAs 
%us objected to on the part of the committee, on the ground of tim 
^itpense : That with regard to his not hating taken the comttiMe 
of maxuigement, or the members eS die ciMigregation) peMonaMy 
bound to repay ikt money, his obKgation to do iU» would depend 
upon l^B instructions he received ; and that there bemg no e^cpress 
directions to that effect, such an obligation cotdd net be lalsed 
against him by implication. 



It was «cfm0i?ml*^That it had been setded by judgmente of tim 
Court in various cases, that it was incumbent upon an agent, in the 
Brtuation of the dander, to look to the interests of boA parties in 
such a transaction. Although nominally employed by line bor rewe i s 
of the mofaey, he was bound at common law, as well as by the in- 
structions he received, to see that the usual and necessary seen* 
rities were taken in fevour of the lender ; and having failed in this 
duty, he necessarily became liable in all the consequences Of hb 
ignorance 6t ikeglect. 



Hie Lord Ordinary sustained the defences, assoihned the 
fender, and decerned, mid found the defender imtitled to ezpensos. 

But the Court J hfter hearing counsel for tlie parties <m a reekitt- 
ing note for the pursuer, < Alibered the interiocuter reclaimed 
* agriust, repelled the defences for CSiatfes Ckrk, and 4ecem^ 



Nb. 1ft. COURT OP SESSION. « 

-^ 'i^aiittl hin^ inform it the condusioiis of tlie'suinmona ; bat found 0. Dec 1831' 
•< tliat be 18 entitled, on payment to the pursuer, to an assignation of ^!^^V^ 
* die debt, so as that he may operate his relief as accords ; found **" *' ^ ' 
^ the defender liable in expenses,' &c* ' 

' Zdnl Balgray said — That, in his (pinion, the defender had acted ^^^ 
^aa the agent for both parties in the transaction, and that it was his 
'duty to execute the obligation according to the known forms of 
iaw and practice ; but this he had not done, having taken no per- 
sonal security or obligation of any sort from the committee of m»- 
tnagonent^ and tiie obligation being in other respects conceived in 
« Uuadered form. It was true, tiiat in general it was tiie heritable 
security that was chiefly looked to in lending money ; bat, in die 
-preaent instance, that was comparatively of Uttie importance, the 
'Tslde of the subject being precarious, and it being the personal se- 
eorityd the borroweia which it was the interest of tiie lender to 
^have, and it was the duty of the defender to have obtained thii. A 
bond was not necessary ; but tiie defender ought to have tak^i a bill 
fmn the debtors, which would have been sufficient But, besidefl^ 
the terms of the obligation, such as it was, were not intelligibly ex** 
pressed ; for although it declared that the sum borrowed should 
'be * payable to the said James Sim, his heirs and assignees,' &e«, 
it did not bear by whom it was to be payable, or who were liable 
to fiiliil die oblation. In short, the whole proceeding seemed 
to hove been incorrect, and to have arisen from the misapprehen- 
lion,' or professional ignorance of die defender ; and for such blan<- 
ders his Lordship thought he must be held responsible. It would 
otherwise be a case of great hardship on the part of the pursuer, 
who, in lending his money, had trusted that his interest would be 
pifoperly attended to by the defender. 

• Lord CrmgU concurred, and said — ^That a law-agent or convey** 
loieer, especially when resorted to by persons unacquainted with legal 
Ibrms, was obliged to decide as to the proper course of proceeding, 
ttnd not less so to avoid diose measures, whicli, to any one poa* 
tetfsed ol ordinary skill and attention, must be considered as incom* 
l^ete and inefficient. This duty the agent owed, not only to the 
iaiKvidttais by whom he was immediately empkyed, but to others 
interested in the transaction ; and he might be made liable in da* 
mages consequentially, in all cases where his immediate employers 
became so, owing to his fault In diis case it had been sufficiently 
proved, that the defender was the only agent employed, and oon« 
sidersd as agent fot the whde parties. In addition to the erroi^ 
ahrdady referred to^ his Lordship observed, that the clause in tb^ 
feO)p>right intended' to create a real lien could not be ultimately efr 
Ibeluidi tfae deed not ;baving been subscribed by the proper parties* 

VOL. VII. F 



82 DECISIONS OF THE No. 1», 

f Dfte. IdSh The decree of declarator too, to which the pursuer would hare 
rtmA ^^^ ^ necessary party, if a proper security had been giyen to him, 
......,_ had not been in any way or form intimated, so as to enable him to 

Opimon of object to it, although very injurious to him, the defenders in the 
action being thus relieved from their obligation to pay future feu- 
dutaes, and the value of the subject, so £eu* as he was interested, 
thereby greatly reduced* On this ground alone, and still more, 
when joined to those already mentioned, hb Lordship thought the 
defender ought to be subjected in damages. 

f Lard Gillies took a very different view of the question firom the 
' Judges who had spoken. It was not a point of strict law they were 
to determine, but whether they should find an agent liable in da- 
mages on the ground of gross neglect of duty, and his Lordship 
thought that this ought not to be done on slight grounds. After 
-stating the circumstances, hb Lordship asked, if, under these, it was 
incumbent on the defender expressly to have made the borrowexv 
personally liable. It was now admitted that the heritable security was 
good, though not of much value. It would perhaps have been more 
complete, if an heritable bond, in common form, had been granted ; 
but while this would have added to the profits of the defender in his 
capacity of agent, it would also have increased the expenses of the 
other party. But having made out the security in the way directed by 
his employers, it was said that it was his duty to have suggested that 
personal security ought to have been granted. But his Lordship 
did not think that it was his business to do so. If the pursuer, the 
lender of the money, wished the members of the congregation to be 
personally bound, he ought himself to have demanded that a bill or 
note should be granted, or a letter would have been sufficient As 
to the decree of declarator which he had obtained, ob non solutum 
4;anonem, and for which Lord Craigie thought he ought to be sub- 
jected in damages, his Lordship did not see what other remedy was 
open to him when the feu-duties remained unpaid. But although 
a bond was not taken expressly binding the conunittee, there was an 
obligation of repayment on them, implied from the nature of the 
transaction. Suppose, for instance, that A. conveys his estate to 
B. for L. 10,000, that L. 5000 of the pric6 is declared in the nar- 
rative of the conveyance to have been got from C, ani that B* con- 
tinues in the possession of the estate for fourteen years, could it be 
listened to at die end of this period, that B. was not under an obliga* 
tion to pay up the L.6000, because he had not signed the di^xm*- 
tion, and was not expressly taken bound to pay this sum ? In the 
same manner, in the present case ilie disponees (the committee of 
management) were the parties personally liable; and after being in 
possession under an infeftment tor fourteen years, can it be said 



Nb: 19: COURT OF SESSION. 8* 

that they are not bound to repay the money, from the want of a per- 2 Dec. 1831. 
sonal bond obliging them to do so, and is the agent to be found lia- ^^y^^ 
ble in damages, because he did not advise such a bond to be tar ""'' * 
ken ? On the contrary, his Lordship thought the defender acted Opinion of 
Y^ry honourably in conducting the matter in a way very much against ^^"^ 
his professional gain. A letter acknowledging the debt, or a bill of 
exchange by the committee, would have been binding against them, 
and so was the obligation implied in the nature of the transaction. 
Bat the question was not whether such an obligation existed, but 
whether the writer should be found liable in damages for neglect of 
daty. It was not alleged, indeed, that there was no such obligation^ 
but that, from the bankrupt situation of the parties, it could not be 
rendered effectual ; and if so, the situation of the pursuer would not 
have been improved, although a personal bond had been taken.' 

The Lord Presidejitj upon first considering the case, had been of 
{he opinion delivered by Lord Gillies, but upon considering the 
evidence of the members of the committee who had been examined, 
he had come to a different conclusion. A letter of acknow:ledgment, 
if granted by the committee, as suggested by Lord Gillies, would not 
have done any good, but a bill of exchange would have secured the 
interest of the pursuer ; for upon the separation of the congregation, 
he might have given a charge to the committee for payment, and 
they woidd have had their recourse against their constituents, the 
members of the congregation. But the ground oh which his Lord- 
ship rested hh opinion was, that, according to the evidence of one of 
the committee, the pursuer said to the defender, at a meeting be-^ 
tween the parties, * that he hoped the defender would, or rather had 
^ taken care that all the papers were right, as he had no other agent 
*• in the business*' From that moment the defender was constituted 
agent for the pursuer, and took the agency upon himself. If he did 
not intend to do so, he should have expressly declined, and desired 
the pmrsuer to get another agent to attend to his interest* But he 
did not do this, and truly undertook the agency himself, and was 
eonsequently liable in damages for the loss which had arisen from 
the want of a proper security. 

LordNuoUm, Ordinary. Act. JDmr f^Tw, CBopt^) Samdfbrd, Abx, Shep» 

ktrd, W: & Agent. Alt. Kn^, A. Murray. Jot. Ferguson, W. S. Agent* 
Z>. Clark, 

C. 



f2 



84 DECISIONS OF THE No. 80. 



FIRST DIVISION. 

No. XX. 2 Dtember 183L 

KENNETH MACKENZIE 

against 

JAMES REID AN0 RODERICK NICOLSON. 

Pb<)ce88.^ — Asummana having been raised againU two defindtrs^ char* 
ging Aanjoindg with having sent a memorial to a pubKc office^ com* 
taining false and injurious statements against thepursuer^ and for ha^ 
ving circulated the same^ and also charging fariher injurious acts dons 
by ihe defenders separately^ and concluding Jbr a joint or for a several 
Kabilitgj-^foundj 1. That it was competent^ in such summonsy to Kbd 
upon such separate acts ; andy 2. That it was not necessary to Kbel 
toant of probable cause. 

The pursuer raiaed an action of damages against the defenden» 
letting forthy that the defenders, having conceived a most ground- 
less malice, hatred, and ill will against the pursuer, had taken every 
opportunity of defaming, vilifying, and traducing his character, both 
as a private individual and in his official capacity : That the defend*' 
ers had prepared, shewn to several individuals, and transmitted to 
the Commissioners of Customs, a memorial, containing a variety of 
mistatements, insinuations, and misrepresentations of the pursuer^s of- 
ficial conduct, calculated and intended to prejudice the Commission- 
ers, and all others to whose knowledge it came, against the pursuer. 
The summons then narrates the import of that memorial, and adds,^ 
that the whole false and malicious statements contained in the said 
petition, and the said petition itself were framed from motives of 
hatred, ill will and malice, and were intended and calculated to vili- 
fy, traduce, and destroy the character and respectability of the pur- 
suer, to his great loss, hurt, and prejudice : That the defenders not 
only forwarded the said petition to the Board of Customs, but they, 
both and each, or either of them, in furtherance of their design 
to ruin the pursuer and get him dismissed, gave publicity thereto 
at different times and places, all with the foresaid malignant inteutiouo 
Some of the persons are then named to whom the memorial was 
alleged to have been shewn. The summons then proceeds, * That the 
< said James Reid and Roderick Nicolson, or either of them, have 

* also been in the constant practice, and have taken every opportu- 

* nity, both public and pri^^ate, of vilifying and traducing the pur- 



i^. so. COURT OF SESSION. 85 

* suer'fl chasracter, to different persons, at sundry times and places, i Dec. 1831. 

* with the maiig^nant intention of ruining him in their esdmation, ^"^V^^ 

' and of destroying his reputation and credit ;' and then states se- ^^^^'^^ 
veral articulate charges to that effect against the defenders sepa- coiton. 
rately ; and adds, < That the said James Reid and Roderick Nicol- 
^ son have also, at sundry other times and places, and before a great 

* variety of individual^ defiuned, vilified, traduced, and injured the 

* pursuer in his character and reputation, all as will be more parti- 

* cttlarly condescended upon in the oourse of the process to follow 
< hereon/ The summons concludes against the defenders severally 
for L.2000 of damages each, or conjunctly and severally for L.4000 
damages. 

Against this action the defenders stated, as a preliminary defence, 
that the summons, as laid, was incompetent The summons first 
complained of the defenders jointiy for having framed, transmitted, 
and circulated a petition to the Board of Customs, and then it com- 
plains of the defenders separately as individuals. This is not con^ 
petent in a libel. In so &r as any party has a supposed claim of 
damages against others individually, he is bound to convene them 
in separate actions, and he cannot state daims of damage against 
two individuals in the same summons* 

As a first peremptory defence, (which is all that is necessary to 
b€| stated in this report,) the defenders pleaded — That in so&o* as 
the libel relates to the memorial presented to the Board of Customs, 
it is admitted to have related to matters within the proper business 
of the defenders ; and therefore, even though erroneous, would not 
l>e die ground of an action of damages. It was not set forth that 
.the statements in the memorial were made without probable cause, 
which has been decided to be essential to subject the party com- 
plainu^ of a public officer to damages. 

The Lord Ordinary ordered cases on the preliminary and first 
peremptory defence. 

Pleaded for the pursuer — 

1. Ti^e preliminary defence is directed against tiie concluding Pursuer '• 
branch of the libel, but it was competent so to lay that charge, as a ^^^^ 
combination on the part of the defenders, to do him a joint wrong, 
forms the basis or grounded action. This is apparent from an ana- 
lysis of the summons, which sets out with the general position, that 
the defenders had conceived a most groundless malice, hatred, and ill 
will against the pursuer, and had taken every opportunity to de» 
fiu&e his character, and ruin him in the eyes of his friends, die pub- 
lic^ and the Board of Customs* This is the key to the whole sub- 
sequent details of the summons; and this general charge is fol- 



^ DECISIONS OF THE Hb. 30. 

%Dfc. 1831. l0W9d by n statement of the mode in which the defend^s have a£- 
^'^y'^ tempted to cany these injurious purposes into effect The defend- 
fidd and^lH- ^^ ^^ ^^ general charge^ are accused of a joint design to do the 
coiflOD. pursuer wrong. This combination on the part of the defenders 

Pursuer*! foHUS truly and substantially the ground of action against tiiem. 
PleM. Although the words ^ combination' or < conspiracy' are not used, y^t 

these are not technical terms, essential to the relevancy or competency 
of a summons concluding against different parties as joint wrong- 
doers; Hamilton v. Rutiierford, 10 Aug. 1771, Mar, 13,924, where 
an action of damages was sustained against four defenders, con- 
taining a conjunct and several conclusion ; Leven v. Young & Co., 
8 July 1822, Shaw's Appeal Cases j i. 179. 

But even if the summons had contained separate claims of da- 
mage against different individuals, it would afford no well-grounded 
objection to the libel. It has been long the practice to call in tiie 
same summons various defenders upon unconnected grounds of debt, 
and the same course has been followed in cases similar to the pre- 
sent, where the object of the action is to recover damages for ver- 
bal slander ; Robertson v. Barclay AUardice and Boswell, 24 March 
1828, Mwrra'jfs RqwrtSf iv. 509; Armstrong v. Vair and Alston, 
28 Feb. 1823, Murray's Rep. iii. 315. 

JI. The first peremptory defence proceeds upon the fidlacy that 
this is a case of privilege. The observations of Lord Chancellor 
£ldon in the case of Leven, upon which the defenders mainly found, 
were made in a case of pure privilege, where tiie action was laid 
upon a complaint against the pursuer in his official capacity as an 
lofficer of excise, and admitted to have been communicated only to 
jiiis superiors, the Board of Elxcise and the Lords of the Treasin^y. 
JBut that is not the case here. The pursuer not only libels on a 
complaint made to tiie Board of Customs, but on the circulation and 
communicating of that complaint, and that this was done from mo- 
tives of malice, hatred, and ill will against the pursuer, and in fur- 
therance of a design to ruin him and get him dismissed from the 
service, which excludes it entirely from being a case of privilege* 
It may be a palliation, as affecting tiie amount of damages, if the 
defenders had probable cause for their conduct ; but the dreum- 
stance, that it is not libelled that this malicious circulation was done 
without probable cause, will be of no avail as affecting the rele- 
.Tancy of the summons. 

But it may well be doubted if the rule said to have been laid 
4own in the case of Leven by Lord Chancellor Eldon, that it was 
necessary to libel ^ without probable cause,' is sound, as applicable 
4o the law and practice of Scotland. The rule recognised in the 
^Scotch courts is, that in actions of damages for judicial slander, 



No. 90. COURT OF SESSION. 8Z 

fidsehood and malice must be set forth and proved ; but tbere is ik> ^ Dec. IdSI.' 
case where it has been held necessary to libel * want of probable ^"^y^ 
• cause;* Swinton r. Taylor, 4 June 1824, Shaufs Appeal Cases^ p^^" NU 
ii. 245; Keddie v. Walker, 14 March 1822, Murrains Reports^ ooison. 
Si. 38; Aitken v. Dudgeon, 16 Dec, 1822, /ft. 227; Gilchrist v. ^.^^^^ 
Dempster, 10 Sept. 1828, lb* 368; Robertson v. Barclay Allar-* Pleai. - 
dice and Boswell, ut sup. All that was required in these cases was, 
frlsehood and malice should be libelled. The same rule has been 
adopted in odier cases of privilege; Warrand v. Falconer, 19 Nov. 
1771, M 13,933; Ut Hamilton v. Dr Hope, 27 March 1826, Mur- 
rmfs Rep. iv. 222; Watt v. Blair, 18 July 1828, lb. 571 ; Hosie 
V. Baird and Finlayson, 11 Jan. 1828, lb. 416. 
' In all these cases the want of probable cause was not libelled^ 
although, in some of them, it was raised as a defence or a couatet^ 
issue. 

« 

Pleaded for die defenders— . 

The pilrsuer is not entitled to accumulate chatges against the' j_. . , 
j^arties, applied to them separately, and in characters totally distinct pImi. 
and tmconnected with each other. The summons, in this case, con- 
tains three distinct and separate sets of charges, one against the de-^ 
fenders jointly, and one against each of them separately, so that in* 
reality it involves three actions against separate parties. The ge-' 
iieral rule is, that claims against separate parties, or obligations pres- 
table from them separately, must be sued for in separate actions* 
And this applies peculiarly to actions of damages, where parties are 
charged with separate alleged acts of injury not connected with or 
dependent upon each other. There is no precedent for such a 
practice as now attempted by the pursuer, and no authority for it 
in our institutiimal writers. It is not sufficient to say that a con-* 
spiiacy between the defenders is to be inferred. No such conspiracy 
or previous concert is alleged, nor is it stated' that the subordinate 
or separate acts charged were done in pursuance of any precon* 
eerted conspiracy or concert between the defenders. ' 

The cases referred to by the pursuer have no application to the 
present objection. In the case of Hamilton v. Rutherford, there 
were no doubt four defenders ; but the libel was laid upon two let- 
ters, each of which was subscribed by all the defenders, so that they 
were charged with the same act, done at the same time. In the 
ease of Leven v. Young, idso founded on by the pursuer, the whole 
proceedings were set aside in the House of Lords, so that can form 
no precedent; and, from the opinion expressed by the Lord Chan* 
cellor in that case, it is plain that his Lordship condemned pointed^ 
ly the very form of the libel w|dch tiie pursuer now wishes to get 



DECISIONS OF. THE 



Nd&aOt 



Defenders' 
Pleat. 



2 Dec. isau suftdnecL' All that Is establUhed in the other eases referred to by 
M k^^' the pursuer is, that more than one defender may be cited in one 
Reid aad Ni- action of damages, without alleging conspiracy, when they have 
coison. ][)^ei| conjoined in the same wrongous act, and been jointly access 

sory, on the same occasion, to the injuiy done to the pursuer ; but 
the actions there never would have been sustained, if the pursuers 
had libelled on separate acts of slander or injury done by the de«. 
fenders sepiurately, and at different times^ which is the case here. 

II.' Even the first or leading charge is irrelevant, in so fiir as it 
is not libelled that the memorial was presented and circulated with* 
out probable cause. Without such an averment the action cannot 
be sustained. This is distinctly laid down in the law of England^ 
Sdwyffs Niai PriuSf ii. 988; and in the case of Young v. Leven, 
8 July 1822, Shawns App. Cases^ I 179, Lord Chancellor Eldon re-^ 
marked, ^ You must not only make out that the charge was mali- 

< dous, but you must make out that it was without probable cause ; 

* and your Lordships know that it has been decided over and over 
^ again, that if a man's malice is as foul and black as it can be re- 

* presented, but yet if he has probable cause for the complaint, hor 
^ cannot be liable to any action for a malidoos prosecution; and, 

< on the other hand, if it has been found that he has no prdbable. 
^ cause of complaint, but if his mind is devoid of malice, neither 
^ can an action be sustained, and therefore the question here first 

< to be considered is, were there botk malice and probable cause ?* 
In that case a strong opinion was entertained by the House of 
Lords, that the hiw of libel, founded on communications to the pub* 
He boards, was the same in Scotland as in England. 

In regard to the other cases founded on by the pursuer, the ob« 
jectibn now stated was never mooted, and therefore they can form 
no authority against the objection now raised to the relevancy of 
this libel. Although the averment of want of probable cause may 
not be necessary in cases of common libel, yet in instances of in- 
formation lodged with a magistrate or officer within the scope of his 
jurisdiction, and more particularly in the line of the person's ordi- 
nary business, want of probable cause must be averred, in order to 
make the libel relevant. 

The Lord Ordinary, on advising the cases, repelled the prelimi- 
nary and first peremptory defence, and added the Allowing note : 

< The Lord Ordinary is satisfied, on considering die cases aad 

* authorities referred to by the pursuer, that when a summons 

* charges two or more defenders jointly with Imving conceived ma* 
« lice against, and a design to injure the pursuer, by defiuni^g hia 

< diaracter, and states certain joint acts as done with this view» it la 

< not incompetent, -by the law and practice of Scotland, to charge 



No^so; 



COURT OP SESSION. 



8» 



fivdier aetfli of ddonAtiaii) though dene ^^ep«rately> more €ip6ci&lly 2 Dtc. lasi.* 
vhen the suininoiis condudes alternadyely for a joint or for a se^ 



▼end liability. He eees abo no sufficient reason to think it essen- ^^^y'. 

tial to libel want of probable ^lause^ even in aetioQB of injury done coImd. 

in the eowee of judioial proeeedings ; for, whatever nmy be th^ 

law of England in suoh maftterSi it has not. been the ptaedce in 

this country ; and various actions of this nature* where the lib^ 

contained no such allegation^ have been allowed to proceed ^th- 

oQt olgec^on on this ground^ though otherwise most keenly liti^ 

gated, and where the defence was conducted by Qouns^ of thet 

&8t ability. He would not have considered it sufficient to obviatt 

the first peremptory .defence, that the pursuer chibrges not only 

the sending the memorial to the Commissioners of the Customs^ hu\ 

the communicating it to other persons in Stomoway ; for he uii"* 

de^stsnds the defence tp iq^ply merely to the first, and as intend-* 

ed to preclude it alone as a relevant ground of chaige/ 

The defenders redaimed, but the Court unanimously adhered* judgmmt. 

Xortf iVocrfoa, Ordinary. Act SoL-Gen* {CodAurn,) Cwuighame, Adamjf 

JShwM, W. 8. Agefits. ' Alt. Kuty, MaiOand. Rod. Maehnzu, W. S- 
AgcnC. D. Clerk. 

T. 



FIRST DIVISION. 



No. XXL 



2 Deembtr ISftL 



ALEXANDER LAIRD 
againtt » 

WILLIAM MIDDLETON. 

Process. — Act of Sederunt, 11 July 1828, § l^^-TTie Lord Or^ 
dinary en the Bilk hamng refuMtd a bitt qf stapention of a judgment 
of an inferwr eovrt proceeding on a proof wMout ttating in iie in- 
tarhevtor the facte held to be estaUiehed by the proof t/ie interloeu^ 
tor recaUedf as not being in terms of the Act ofSedertmt* 

MiDDLETON brought an action before the Water Bailie of Glas- 
gow against Laird, as agent for the Mersey and Clyde Steam Packet 
Company, for the value of some goods alleged to have been abstract* 
•d from a box, when under chai^ of the Steam Faeket Company/ 



M t)£ClSIONS OF THE No. iU 

1 Dtc. 1831. having been put on board one of their packets at Liveipool, ad- 
^*"^v^*^ dressed, and to be delivered to the parsuen After a proof, the 

dlMonT " ^A^f Bailie found the libel suffidently instructed, and decerned 
in terms thereof. A decree being extracted, a chai^ for payment 
was given, upon which Laird presented a bill of suspension, which' 
the Lord Ordinary refused dimply, but expressed generally in it 
note tibe ground of his opinion. 

A reclaiming note was presented, and the suspender at the same 
time complained, that the interlocutor of the Lord Ordinary refusing 
tiie bill was not in terms of the 7th section of the Act of Sederunt 
1 1 July 18Q8, which requires that the Lord Ordinary, on advising a 
biU of suspension of a judgment of an inferior court, proceeding on' 
a proof, * distinctly to specify in the interlocutor the several fiict^ 
^ material to the case which he finds to be established by the proof,' 

* and express how fiu* his judgment proceeds on the matter of fact 

* so found.' 

The charger answered — That die Lord Ordinary had, in the note 
attached to the interlocutor, expressed very distinctly the grounds of 
his opinion, which was a sufficient compliance with the spirit of the* 
Act of Sederunt. 

The Courts however, being of opinion, that the note formed no 
part of the interlocutor, and that it was necessary that this provi- 
sion in the Act of Sederunt should be strictly complied with^ < re- 
Judgmtni. ( called the interlocutor, complained against hoc statu, and remitted 

< to the Lord Ordinary on the Bills to advise the bill, answers and 

* proceedings, taking into his consideration the provisions contained 

< in the 7th section of the Act of Sederunt, 1 1 July 1828.'' 

Lord Craigief Ordinary. Act BormOL «/afai Naim, Agent Alt JUmA 

TTm. Wadded Agent. D. Clerk. 

T. 



SECOND DIVISION. 

■ 

' No. XXIL 2 December 1831. 

ORR AND Others 

affainst 

VALLENCE and Others. 

Summary Application.^-Buboh Royal. — It is inconyfetent ta 



Nt. 29. COURT OF SESSION. •! 

' ^Vfhf hf ^fttQ'^'t'^ ond interdict to prevent a person wko'has been 2 Dae. MdU' 
elec^ fiom acting as magistrate of a burgh^ without previoudg ^"^st^^^ 
setting aside the minute of his election^ either by petition and com- ^1^\,^ y^j, 

. plaint^ or by reduction* leoce «nd 



Others. 



The Town-Council of the burgh of Lauder consists of two Bailies 
imd fifteen Councillors ; and by the sett it is provided) that the 
manner of electing the Bailies shall be as follows ; ^ Item, These 

< fifteen Councillors, with four other new ones, chosen by the Bailies 

< and Council eight days before Michaelmas head-court, makes a leet 
* of four of their number to go out with the present Magistrates, 

< and elects the Bailies for the ensuing year out of that number^ 

< whereby the old Magistrates may continue.' There does not ap^ 
pear to be any provision in the sett for removing the Bailies, or for 
elecdng others in their place, in the case of a vacancy between one 
Michaelmas and another. 

At the election at Michaelmas 1830, Peter Dods and James 
Shaw were duly elected Bailies, and entered on the office* In the 
following spring, however, Dods left this country, and went to re* 
side in America, without any intention, as was believed, of return* 
ing to Scotland. Accordingly, at a meeting of Council held on the 
15th of June, it appeared by the minutes that the following proce- 
dure took place : ' James Smith,' (one of the present oomplainers,) 
' stated, that Bailie Dods had left the' country, and had been ab* 

< sent since the 1st day of March last, and that a Councillor should 

< be chosen in his place, and moved, that the same be done this day 
^ eight days.' The day of meeting was afterwards changed, at the 
desire of the original applicants, from the 22d to the 2dd of June, 
on account of the sacramental fast, which fell on the former day* 
On the 2dd of June, Mr Smith and his party attended the meet* 
ing, which had been summoned by Shaw, the other Bailie ; but now 
finding, contrary to their former expectation, that they formed a 
minority of the members present, they protested against the whole 
proc6e<tings, on the ground that the meeting had no right to de* 
dare any vacancy, as Dods was still alive, and had never. resigned 
his office ; and they consequently declined voting, or taking any 
further part in the proceedings. The majority of the Council then 
proceeded to elect the respondent, Archibald Vallence, a Councillor 
and Chief Magistrate of the burgh in place of Dods, and he imme* 
diately entered on his office accordingly. 

Orr, Smith, and the other dissenting members of the Council af« 
terwards presented a bill of suspension and interdict against Val- 
lence and the members who had elected him, praying for an inter- 



92 



DECISIONS OF THE 



No. 22. 



8 Dm. 1841. diet against him, acting or taking upon himaelf the oAce of bailie 
of the burgh, in consequence of this pretended election. 

Othen 9, VaU 

lence and xhc respondents objected to the competency of this application 

' upon various grounds. 1st, That it was incompetent to proceed by 

Respondenu* sttspeusion and interdict, under any circumstances, to challenge an 
election of magistrates actually completed ; the only proper mod# 
of challenging such elections being either by petition and complaint, 
under the express sanction of statute, against an annual election 
jnade at the regular time, or, in cases to which the statute is inap- 
plicable, by a proper action of reduction. 2dly, That the bill of 
suspension and interdict was incompetent, in respect that the only 
act against which the interdict could have applied was already done, 
vi2. holding the meeting on the 28d of June for the purpose of 
making the elecdon. 3d, That the whole members of the Council 
were not made parties to the action ; Dods, (who, according to the 
plea of the complainers, was still a magistrate,) and another coun- 
cillor of the name of Smeal, having neither concurred in the appli- 
cation, nor being included in it 4th, That the complainers were 
barred, personal! exceptione, firom objecting to the meeting or pro* 
ceedings on the 2dd June. 



Judgment. 



Opinion of 
Court 



The Lord Ordinary took the bill and answers to report, and in 
the meantime recalled the interdict; and the Court unanimously 
refused the bill as incompetent, proceeding entirely upon the first 
objection above mentioned, without giving any opinion as to the 
other points raised in the answers. 

The Lord Justiee-Clerk.^^1 am clearly of opinion that this bill 
is incompetient, and that there is no competent manner of challeng- 
ing the proceedings of a town-KM>uncil in matters of election of ma- 
gistrates, except either by petition and complaint in terms of the 
statute, or by action of reduction, when a petition and complaint 
is inapplicable. It would be quite premature to enter into the 
discussion, whether all the necessary parties are here called into 
the field, or of any other questions raised either by the complainers 
or req[>ondents. 

Lord Glenlee* — I am entirely of the same opinion. I do not say 
what might have been tiie case if Mr Dods himself had appeared, 
and complained of being excluded firom his office by an intruder. A 
very different question, as to the right of possession, might then 
have been raised. But I question whether, in any case of an ap- 
plication to this Court to regulate possession, any party can come 
forward and appfy for an interdict, except the one who is excluded 
from tiie possession. 



No. 92. COURT OF SESSION. 9S 

Ijoird$ Cringibtit and Meadowbani concuned. 8 Dm. 1831. 



Lord Ordiauy, Falbrten. Act J. A. JAongr ud 7i«iv. Alt. D«ati of Fee. 2?^^ 

fHopt,) and ilmfanm. JoAn £9iim«^ and GAioi»>Oa(|^ WandZna jr Dakdl, y^x^acttxA 
yr. & Agentf. Others. 

U. 



SECOND DIVISION. 

No. XXIII. 3 2)«efm6<r 1681. 

BELL 

agatHtt 

Thb bank of SCOTLAND. 

Bankbuft. — Stat. 54 Geo. ill. c. 137. — An tnterlocutor award" 
vug sequesiratian is no bar to an heritable creditor inf eft from pro- 
eeieiing vASk a poinding of the ground against his dehton^s estdiej 
or from selling the goods so poinded, tender a decree obtained toithin 
sixty dags of the date of the sequestration* 

In Marcli 1824, three brothers, James, John and Alexander 
Smith, who carried on business as cattle-dealers, obtained a loan of 
L.9000 from the Bank of Scotland, for which they granted their 
joint bond, and each respectively gave heritable security onf their 
estates, with the usual clauses of assignation to the rents of the 
lands, in which the Bank was duly infeft 

Alexander Smith died in 1827, but his brothers continued to 
carry on business together as cattle-dealers till midsummer 1820, 
when tiiey became bankrupt In June 1829 the interest on the 
heritable bond being theh two terms in arrear, Mr Cadell, as trea- 
surer of ihe Bank of Scotiand, raised a summons of poinding of 
the ground, in which decree was pronounced by the Sheriff, on the 
12th of that mondi, and letters of poinding upon this decree werer 
forthwith expedehy tiie Bank, which were signeted on the 22d, and 
executed on the 25th June 1829, whereby the whole crop, imple- 
ments of husbandry, and stocking, &c. on the lands, were poinded, 
appraised and valued in the usual form. This execution having 
been reported, warrant of sale was granted by the Sheriff on Ae 
10th July, 

A similar decree of poinding the ground was obtained by l&e 
Bank on a separate bond for L.6000 on the estate of James Smith, 



94' 



DECISIONS Ot* THE 



No. 9d. 



Bell p. The 
Bank of Scot- 
land.. 



5 Dec. 1881. on which the letters were expede, and executed on the dd and 6th, 
and warrant of sale was pronounced upon the 15th of July 1829. 

In the meantime, the estates of John^and James Smith as a 
company, and also as individuals, were sequ^trated on the 3d of 
July 1829, and the suspender Mr Bell was appointed trustee. 
Immediately upon entering on this office, Mr Bell presented a bill 
of suspension and interdict against the Bank proceeding with the 
sales for which they had thus obtained warrants, on the ground that 
the interlocutor awarding sequestration superseded all diligence, 
by poinding or otherwise, agidnst the bankrupt's estate, which was 
not completed more than sixty days prior to its date. 

The Lord Ordinary on the Bills (Moncreiff) passed the bill on 
caution, with the following note : * If the Lord Ordinary were to 
< act simply on the inclination of his own opinion, he would refuse 

* the bill, becanse he is strongly inclined to think that the clause 

* in the act of Parliament referred to has no relation to poindings 

* of the ground by heritable creditors, and that, in general, such ere- 

* ditoTs afe ehtitled to do what they can within the sixty days, or 

* even after the sequestration, to esfoblish their preference. But 
\ the case deserves discussion, and, therefore, the Loxd Ordinary 
' passes the bill.' 

When the cause came before Lord Mackenzie on the expiede 
letters, his Lordship repelled the reasons of suspension, and accom- 
panied his interlocutor with the following note t ' 

*' A poinding of the ground on a debitum fundi, whatever may^ 
have' been its origin, seems to the Lord Ordinary to have be- 
JBome, in our law, different in kind from an ordinary poinding, 
of the moveables of a diebtor. The latter proceeds on a mere per^ 
sonal debt, the former on an infeftment only. The latter affects 
all moveables, but the former is confined to the moveables on the 
fundus, in which the poinder is infeft The latter requires a de* 
cree against the person who is debtor, and a chaise on the de^ 
cree, and is limited to his property. The former proceeds oh a 
decree against the land, (though the existing party in right of it 
is called in the action,) needs no charge, and will operate direct^ 
ly against the moveables of whoever becomes possessor of the land« 
It may be, that the party interested in the fundus is not at 
dl bound personally for the debt, but may be free by giving up 
the fundus* He may be a tenant Kable for his own rent, but not 
liable, personally, for the debitum fundi, or a singular successor^ 
or heir-apparent not entering, or even charged to enter. Ordi- 
nary poindings are all equal inter se, or preferable by priority of 
time of execution onTy. If they coincide in 'time, one creditor may 
ask' to be conjoined in the poinding with the other. Poindings 



No. 83. COURT OF SESSION. W 

of the ground, inter se, it seems perfectly certain) are not equal, 3 Dec. \ss\i 
nor depend on priority of time rf execution : That proceeding on V^^^^ 
the first infeftment is preferable, though there appears to be a re^ Bank^o/sMt- 
medy wliere the preferable creditor unduly lies by. Vide Staii^ Und. 
B« 2, tit 5, sect 12, confirmed by all our writers. It seems not 
possible to account for these peculiar qualities of poindings of thfe 
ground in any other way than by admitting that tiiey are founded 
on real right, whidi not only affects the fundus, but tiie moveable^ 
thereon, as accessaries thereo£ It is true that this real, right, 
in so far a9 it affects tiie moreables, is of rather an anomaloitt 
kind, and weaker than the right to the land itself. For it is 
liable to be excluded by all completed alienations of the movcs 
ables, either voluntary or judicial, to persons who have no 
connection with the land, as well as by the rights of tenants, 
excepting to the amount of the rent due by them. The latter 
(estriction did not exist originally, but exists now, by virtue 
of an express statute, extended by later practice ; and even ye^ 
to a certain extent, the goods of the tenant are poindable for a 
debitum fundi, though not for any personal debt of the landlord 
The former restriction in fiivour of conqpleted alienation is abso>- 
lutely necessary to any management whatever of tiie fundus, as 
well as to tiie safety of the public, and has been introduced by 
customary law. But still, though this right be subject to great 
but necessary limitation, it seems to be a real right sui generis^ 
founded on the sasine in the land, and creating, where it is not 
legally defeated, a preference according to the priority of the 
sasine. If it be such at all, however, it seems impossible to carry 
tiie exception so fiEir as to admit ordinary poindings into equal 
cdnq>etition with it, when these are not completed before the pro<^ 
cess for actual exercise of the real right is commenced. That 
would, in truth, be doing away all notion of a real right whatever. 
And it would seem strange to hold, that while a poinding of the 
ground, or a debitum fundi, with a prior infeftment, was prefer- 
able to a poinding of the ground on a posterior infeftment, yet a 
poinding on an ordinary personal debt, without infeftment at all, 
was on a full level with the poinding of the ground on the first 
infeftment, tiieir preference depending merely on priority id 
time. The Ixird Ordinary, therefore, does not tiiink that there 
is any full similarity or equal competition between poindings of 
the ground and ordinary poindings; and this opinion is confirm- 
ed by all that is to be found in our writers, in reference to actual 
practice, and, particularly, in Mr Ross, though he does not ap- 
prove of the practice. It is confirmed, lastly, by the case of 
Tullis ; and tiie case of Hay is not contrary to this view, merely 



DECISIONS OF THE 



No. i&. 



3' Dec. 183). 



Bell v: The 
Bank of Scot- 
land. 



dewii^ (me of the exceptions or limitations on the realiig^bt of 
debitum fdndi, as affecting moveables, above stated. This b^ing^ 
the case, the Lord Ordinary does not think, that an ordinary 
poinder can be entided to be conjoined with a poinder of tiie 
ground^ or that he can have the benefit of any of the provisions 
for dividing the prodoet of poindings among creditors. The 
Lord Ordinary is satisfied, that in all these provisions, ordinary 
poindings of moveables of persons — ^for the debts of persons-' #erb 
in view — not poindings of tiie ground for debita fundi. Hiere ia 
nothing in any of the acts of Sedermit or statutes, to AtiW tiial: 
any such change in our law was ever contemplated. Nor doels 
tiiere seem any impossibility in giving a construction to these pro- 
visions exdnding poindings of the ground. It is'only neftessa^ 
to believe, that the term poindings oi^ poindings for debt wa^ 
nsed in the sense of ordinary poindings, poinding of the ground 
being )^ewed as a complex name for a pecnHar process sui ge- 
neris, and so not included under tiie other terms, and then there 
remains no difficulty in the eonstruction. In the act of Sederunt, 
10 August 1754, it seems manifest that ordinary poindings only 
were in view ; for the act, in its preamble, mentions < the great 
^ inpistice done to the creditors of notour bankrupts, by the {mtc- 
^ ference given to arrestments and poindings according to tiieiJr 
^ dates,' which was not the case in relation to poindings of the 
gronndl In the particular clause of the last bankrupt act which 
is libelled, the words ^ poinding of a debtor's effect^* may e^ly 
be held not to include poindings of the ground, which aihe nXbe^ 
viewed in low as poindings of the figurm moveables on the debittfrii 
fundi, tii«i as poindings of a debtor^s effects. Ncnt would it be 
easy to find in the act provisions suited M die case of poinding^ 
of the grotmd, such as may easily occur, — ex gr. in ckse of a te- 
nant i>oinding to a small extent for a large debitum fundi, 6f a 
singular successor in the fundus, or an af^slrent heir not person- 
ally liable for the debitum fundi. The provision of seet. 4, is said 
to be, in practice, applied to poindings of the ground. If it b^ 
so, this cannot be otiierwise than by an equitable ext^ndon <^ this 
clause, which isus^ul and convenient in all cases to cA conl:rerki- 
ed, imposing no loss on any body ; and it is not possible to apply 
it strictiy to all poindings of the g^round. It would not follow, 
however, that other clauses were to have a similar extension, to 
tiie effect of taking away existing preferences, nowhere mention- 
edintiieactasfittobe abrogated, and still less taken away ek- 
presdy.' 



The suspender rtdaimedL, and the cause wu argued in cases, id 



No. 23.. COURT OF SESSION. 97: 

which he pleaded — That, by the sequestration of the bankrupts^ 3 Dec 1831. 
estates on 3 July 1829, their whole moveable and personal pro- ^^^v^^ 
perty, wherever situated, was completely attached and transferred ^f'scotl^idl 

to the general body of their creditors : That the 40 th section of ; 

the statute, which deprived all poindings and arrestments which p"^as!"^*" 
were not completed before the sixty days of any preference, 
made no distinction of poindings, nor any exception in favour of 
poindings of the ground, as distinguished from those proceeding 
on personal diligence : That the same remark applied also to the 
5th section, which established the pari passu preference of ^1 
poindings within the sixty days preceding, or the four months sub- 
sequent to bankruptcy : That the infeftments in favour, of the Bank 
gave them a real lien over the land conveyed to them, but not over 
the crop, slocking and moveables upon it ; Hay v. Marshall, 7 July 
1824 : And that the diligence of poinding, which the Bank had 
used in execution, was merely inchoate until completed by sale, foii 
which they^had not obtained warrant till after the date of the se- 
questration. 

- The re^ondents answered* — That the interlocutor awarding se- Respondents' 
questiation only tied up the hands of the bankrupt himself, but ^^^^^' 
could not interrupt or prevent heritable creditors, who were already 
iofeft, and had previously acquired from him all the right which he 
could give, from following out, by the course of law, the rights of 
which they were already possessed in substance ; Buchan i>. Far- 
quharson, 24 May 1797, Mor. 2905 : That the disposition ;n fa- 
vour of the Baiik conveyed not only the lands, but also gave a real 
right to the moveables found upon them, at least in so far as to give 
the heritable, creditor infeft a privilege to attach and. distrain these 
moveables, so long as they remained on the ground ; Webster v. 
Donaldson, 13 July 1780, Mor. 2902; Parker v. Douglas, Heron 
and Company, . 5 February 1783, Mor. 2868 ; White v. Tullis, 
18 June 1817 : And, lastly, that tho' provisions of the statute^ 
54 Geo. III. c. 137, § 40, respecting personal poindings, do not 
apply to poindings of the ground. 

The Court unanimously refused the note, and adiiered to the Judgment. 
interlocutor of the Lord Ordinary. 

Lard Glerdee* — I can add nothing to what has been said by the Opinion of 
JLord Ordinary in his note. ^®"*'^* 

' JLord Meadowbanh. — It is impossible for the suspender to main- 
tain his argument in this case. I am clear that the Court must 
adhere. 

The Lords Cringletie and JusHce^Clerk concurred. 

VOL* VII. a .... . 



98 DECISIONS OF THE No. 23, 

S Dec. 1831. Lord Oi^P«ry» M<9ckpixi4* ^ft, Ihtm tfFae. »nd Whigham. Alt. 8kmi wi 
V;^,l^y W^lktr. BrodifiM ^ Ketmfdy, W. S. «nd B. Davidwn, W. 9. Agents. JP. 

•fSmlMid. 17. 



-m— imj 



SECOND DIVISION. 
No, XXIV. 6 December 1881. 

• 

THOMAS RIDGWAY & NEPHEW 

HENRY BROCK. 

Society.— Bankrupt. — If a mercantile oompamfj carrying on bud^ 
neiSj and having contracted debte^ thall afterwardi form a new eo^ 
partnery by assuming additional partners^ and continue to carry oil 
the same business witliout winding up the trffdirs of the old company ; 
the estate of the new copartnery will be liable for the debts ofifte oU 
company J as well as the private estates of the individual partners of the 
former company, — hut not the private estates of the new associates^ 
unless the new company shall have granted a corroborative obligation 
for the debt 

RiDGWAY and Nephew were crediton of Archibald Duncan and 
C0.9 for an account incurred by them previous to December 1826, 
for which they obtained decree in the Sheriff-court of Glasgow in 
December I830» During the time when this account vras incurred, 
the copartnery of Archibald Duncan and Co. consisted only of 
Archibald and James Duncan ; but in the course of 1827, they as- 
sumed Thomas Lancaster into partnership, and began to carry on 
business under the double firm of Archibald Duncan and Co., for 
weaving, and of Lancaster, Duncan and Co., for dyeing and print- 
ing ; the old copartnery having been previously engaged in both 
businesses. On the 14i;h of May 1827, a regrular contract of copart- 
nery was entered into by Archibald and James Duncan, and their 
new partner Thomas Lancaster, by which the double firm under 
which they were now to do business was established ; and it was 
provided, inter alia, ^ That each of the said partners shall have 
^ power to subscribe the companies' firms, but only in regard to the 

< business of the companies, and in no other whatsoever, excepting 
' in so far as the Ifirm of Archibald Duncan and Company is required 

< for the winding up of the late business of the said Archibald and 



No. U. COURT OF SESSION. 99 

Jiunes Duncan, or as either of the firms may be granted to the said 6 Dec. 1831. 
Thomas Lancaster for the winding up of bis late business. That ^*^V^^ 
the capital stock of the said company shall consist of, and be ad- K^p^w^JT 
vanoed in manner following, viz. the said Thomas Lancaster shall Brock. 
advance the whole capital at present belonging to him, as the 
amount thereof shall be ascertained on a final winding up and ba- 
lancing of the books of the concern lately carried on by him, made 
up to the Ist day of August last, at which date the said late concern 
is hereby declared to have ceased and determined ; and the said 
Archibald Duncan and James Duncan shall severally advance the 
amount of capital at present belonging to tliem, both as copartners 
and as individuals, as the same shall be ascertained on a final wind* 
ing up of the business lately carried on by them, in like manner to 
the Ist day of August last, when their business is also dedared to 
have ceased.' 

The new company carried on business for some years till they 
became bankrupt, and their estates were sequestrated on the 23 
February 1830. The req>ondent Brock was appointed trustee in 
their sequestration ; and the complainers, Bidgway and Nephew, 
having constituted their debt by decree against Archibald Duncan 
and Co., and Archibald Duncan as an individual partner thereof^ 
made affidavit, and lodged a claim upon the sequestrated estate. 

Tie trustee gave a judgment upon their claim to the following 
effect : < Deliverance by die trustee on the estates of Lancaster, 
Duncan and Company, and Archibald Duncan and Company, 
merdiants in Glasgow, and of Thomas Lancaster, Archibald Dun- 
can and James Duncan, partners of said company, as individuals,' 
upon the claim lodged against the estate of Archibald Duncan 
and Company by Thomas Ridgway and Nephew, bleachers at 
Wallsuches, in the county of Lancaster. The trustee rejects ike 
olium as a ranking upon the estate of Archibald Duncan and Com- 
pany under sequestration, in respect that the debt claimed was 
contracted prior to the formation of the present company of Lan- 
caster, Duncan and Company, and Archibald Duncan and Com- 
pany, of which the said Thomas Lancaster, Archibald Duncan 
and James Duncan were the partners, and was contracted while 
the only partners were the said Archibald Duncan and James 
Duncan. The trustee, for these reasons, refuses to rank said 
claim upon the present company-funds of Archibald Duncan and 
Company, and Lancaster, Duncan and Company, which is one 
and the same company, but sustains the same as a claim upon the 
funds of Archibald Duncan and James Duncan, as individuals.' 
ay and Nephew complained of this deliverance, by petition 

a2 



100 



DECISIONS :OF THE 



No, 24, 



6 Dec.. 1831. 



Ridgway and 
Nepbew o. 
Brock. 



tp the Lord Ordinary on the Bills, who pronounced the following* 
interlocutor : 

^ The Lord Ordinary officiating on the Bills having advised.this 
petition, answers thereto, copy .of the contract of copartnery. be-» 
tween Thomas Lancaster, Archibald and James Duqcan, dat^d 
14th May 1827, and whole process produced, recals the interlo-*' 
cutor or deliverance of the trustee on the sequestrated estate of 
Lancaster, Duncan and Company, and Archibald Duncan and 
Company, and the individual partners thereof, and remits to said 
trustee to rank the debt due to the petitioners on the sequestrated 
estates of said companies, and the individual estates of Archibald 
and James Duncan, but not on the private or individual estate of 
said Thomas Lancaster, and decerns : Finds said respondent lia-^ 
ble for expenses to the petitioners, and remits to the Auditor of 
Court to tax the same/ 

^ Nete.-'It is admitted that the debt claimed on by the petition- 
ers is a just and true debt against Archibald and James Duncan^ 
and it is farther admitted that it was conU^acted by Archibald and 
James Duncan and Company. In this situation the Lord Ordi"» 
nary cannot admit that partners of a company having contracted 
a debt, can withdraw their funds from payment of that debt by 
the mere act of entering into a new copartnery with a third per- 
son, and that too without notifying to the public their intended 
measure, and. calling on all their creditors to demand payment of 
their debts, and the debtors of the company to pay what they are 
owing. Any person entering into such copartnery, without such 
previous measures, appears to the Lord Ordinary (to use the 
gentlest language) to consent that the funds of the new company 
must remain liable for pa3rment of the debts of the company with 
whom he has associated himself. But in this case there is no 
need for presumed consent. By the contract of copartnery the 
consent is express. The stock, to be contributed by Archibald 
Duncan and Company is their free fund after payment of their 
debts existing at the date of the contract. There is an express 
stipulation that they may use the firm of the company to grant 
bills and other documents as renewals of such debts, or evidences 
thereof; that accordingly such documents have been granted ; and 
the trustee admits, that where such have been granted, he has 
ranked them on the estates under his management But the Lord 
Ordinary considers that the express stipulations in the contract of 
copartnery have the same effect as if a bill had been granted to 
the petitioners, except that these stipulations could not have war- 
ranted diligence as a bill or bond would have done, or a dem^md 
against Lancaster as an individual. The right to sign the com- 



.No. 24. :COURT OB' SESSION. ^ Idl 

* pany finn to a document renewing dir acknowledging a debt of 6 Dec. 1 83 1. 

< Archibald Duncan and Company is contained m the contract ; it ^^^^y^^ 

« is equivalent to a declaration that the stock !rf 'the new company ^"^ff^^y •"«* 

< was liable for such debt ; it is in perfect confom^ty to the clause, Brock. 

< stipulating that the stock to be contributed by Archibald I])uncan 

< and Company was to be their funds remaining free after, ^yH)ent 
^ of their debts ; and as a consequence of this, the stock of the new 

^ company remained subject to such claims ; nor can the Lord Or-. ' 

* dinary assent to the plea of the trustee, that by the act of injustice ; 

* by Archibald Duncan and Company in resisting payment of the ' 
-< debt due to the petitioners, instead of giving a bill for it, as they 

> were bound to do, since the debt is admitted to be just, the funds 
^ of the new company are not to be liable. For all these reasons, 

> the Lord Ordinary has dissented from the opinion of the trustee. 
^ As no such bill, however, was granted, the Lord Ordinary does 

< not think that Thomas Lancaster's private estate is liable.' 

The trustee reclaimed^ but the Court unanimously adhered. judgment. 

Ixnrd Glenlee* -^The interlocutor appears to me to be right; the opinion of 
general doctrine expressed in the note is sound ; and with reference Court, 
to the stipulations in the contract, there can be no doubt that the 
new company took upon itself the debts of the old one. It is very 
true that no bill was granted, but the decree is just as good a con- 
stitution of the debt. 

Lard Meadowhank concurred. 

Lord Ji£sHce-Clerk ssid — I am of the same opinion as the Lord 
Ordinary on all the branches of the case. On looking at the con- 
tract of copartnery, I find that one clause provides, that the stock 
to be constituted by the old firm of Archibald Duncan and Co. is 
their free fund after paying their debts, which, of course, made the 
new company take the estate of the old one under burden of their 
debts ; and the preceding clause provides, that the partners of the 
new company shall not use the firm of the old one, except for the 
purpose of winding up their affairs ; which evidently contemplates, 
that they were to wind them up by discharging their obligations. 
I think it is a fortunate circumstance for Mr Lancaster, that his 
individual estate has not been made liable ; but as there is no reclaim* 
ing note against that part of the interlocutor, it is unnecessary to 
enter into that question. 

' Lord Crinffletie. — I have already expressed my opinion, as Lord 
Ordinary, in the note, and I have seen no cause to alter it. 

Xmd Ordinary, Crmgklm, Act. Bvbwm* Alt. J)ean ofFac. and Wood. J>« 
Campb^ and JR. Wdih^ Agents. F. Clerk. 

U. 



102 DECISIONS OF THE * No. 2S. 






• • • 



FUtST DIVISION. 



No. XXY. 8 D*eemb€r 188L 

THOMAS SCOTT and JOHN LIVINGSTON 

againai 
ALEXANDER DONALDSON. 

PRESCRirrioN.— Stat. 1579, c. 89.— Law-Ag£NT« — CircumMiw/ues 
in which a party alhwed to plead the triemual preseripHony who die^ 
niedf when action was brouffht against him after Ae expiraHon of 
three yeare^ that he teat truly the employer of lauMigentiy who eon^ 
ducted a procesi in his Tiame as defendery and in which he hadpr^ 
cognosced wiinesseSf and contributed information towards the defence. 

Ik 1801, die defender, Alexander DonalddOD, purchased from the 
late Mr Little, a poperty in the Cowgate, consisting of two flats 
and two areas ; and shortly after the purchase he erected certain 
bnildings in the area, which were challenged by the proprietors of 
the adjoining tenements. Among other proceedings, an action of 
declarat<» and damages was raised against the defender, for these 
alleged encroachments, in 1822, by John Macglashan, a proprietor, 
who had succeeded to one of these tenements in right of certain 
tninors. Upoii this, the defender (according to his own statement 
in the present action against him,) waited upon Mr Murray, writer 
to the signet, who was one of Little's trustees, and their law'^gpent, 
and stated, that they (the trustees) were truly the defenders, and 
were bound, by the warrandice, to defend his possession of the dis- 
puted subjects, or to indonnify him for the loss of them. . The de- 
fence, however, was afterwards carried on by Mr Murray in the 
defender's name, and freqnent communications took place between 
bim and Mr Murray in the course of the litigation, the witnesses 
being precognosced by him, and information afforded to their agent 
Mr H* Inglis was afterwards assumed into partnership by Murray, 
and another process of the same nature was carried on by them, 
also in Donaldson's name, as defender. 

In January 1829, the present action was brought by the pur- 
suers, (as assignees of Messrs Murray fmd Inglis,) against the de- 
fenders, .concluding for payment of the sum of L.88 : : 1 ster- 
ling, as the amount of a business account, commencing 30 October 
1822, and endings 18 December 1828^ and of the sum of L.80, 



No, as. COURT OF SESSION. 1©8 

128. 2d. •terling, as the amount of an account commencing 13 May ^^^- l^'- 
182a, and ending 19 April 1825. s^^tt^^ 

Uvingston v« 

The defender p2a]i&i— The accounts pursued for falling under the Donaldson. 
prescription, the constitution and subsistence of the debt, as Def^J^ 



one due by the defender, can be established only by his own writ or Pl««i. 
oath ; and the defender's admission, that he did employ Mr Murray 
to conduct the defences, which were carried on in his, the defend-* 
er's name, must be taken in connexion with the qualification annex- 
ed with it, viz. that although nominally a defender, it was^ Lit* 
Ue's trustees who were truly the parties interested, and tiiat it was 
on their account that Messrs Murray and Inglis carried on the de- 
feneea. This qualification is not extrinsic* It forms an essential 
part of th» defsnder's statement, aad the whole must be taken 
together. 



ie constitution of the debt being proved, by the Punucn* 
admitted employment of Messrs Murray and Inglis, and payment T^ 
not being averred by the defender, the plea of the triennial prescrip- 
tion is excluded; ihe allegation that the employment was not for 
behoof of the defender, though carried on in his name, being an 
extrinsic qualification, which the defender was bound to prove ali- 
unde* The presumption of law is, that he was the real and responr 
sible defender ; and the burden of proof rests upon him to shew that 
there was an understanding or stipulation that Messrs Murray and 
Inglis were to defend the action for Little's trustees, or considered 
them as the only real defenders, or as exclusively rei^nsible to 
thi 



The Lord Ordinary sustained the defence founded on the trieiH 
oial prefcriptimi, and assoilzied the defenden-^^o/e. * The de- 
fender has made no admission oth^Lving employed Mr Murtay# 
or Messrs Inglis and Murray, to do the business for which pay- 
ment is claimed ; on the contrary, this k expressly denied. Neither 
is the constitution of the debt proved scripto of the defender, and 
the daim is liable to the triennial prescription. The Lord Ordi» 
nary at first entertained some doubts whether the admission by the 
defender, that the process was carried on in his name, did not so 
fiir pi^yve employment^ as to throw on him the burden of proving that 
the expense was agreed to be borne by Little's trustees ; but be 
seeS) from the case of Campbell «. Stein, 28 Nov. 1813^ that 
this circumstance was not held sufficient to prove employment, 
and that the triennial prescription was there sustained/ 



104 



DECISIONS OF THE 



No. 2S: 



Scott and 
Livingston v, 
Donaldson. 

Opinion of 
Court. 



B Dec. 1831. After hearing counsel on a retiaiming note for Scott and Living<> 
ston, Ijord Gillies observed — That the case was attended with some 
difficulty, and required a good deal of attention ; for besides a ques* 
tion of law of some importance relating to the triennial prescription, 
as to which the decisions of the Court were somewhat contradictory, 
a question of evidence was involved, as to whether Murray and In<> 
glis were truly employed by Donaldson, as defender, to conduct 
the defences. From the evidence before the Court, it did not ap- 
pear whether the encroachments which were challenged were made 
on the subjects falling under the conveyance to him by Little, or 
by the defender's taking possession of new subjects, and, conse- 
quently, it did not appear whether warrandice would have been in*- 
curred by I^ittle's trustees by the result of the action against Do- 
naldson. On the other hand, the defence was conducted in hi» 
name, and he had a good deal of communication with the agents 
during the proceedings ; and the question arose, whether they were 
truly employed by him or not. Various points of difficulty occur- 
red, which his Lordship was not prepared to decide, neither could 
he at present concur in the views of the Lord Ordinary. 

Lord Balgray thought the interlocutor well founded, although it 
was admitted by Donaldson, that upon the action being raised 
against him, he had gone to Murray as agent, who conducted the 
defence in his name. This admission was qualified by the state- 
ment, tliat in so doing he distinctly intimated to Murray that he 
held Little's trustees, under the warrandice, as truly the defenders 
in the action, Murray himself being one of the trustees, and Little'^s 
Taw-agent ; and his Lordship held this qualification to be clearly 
intrinsic. Under these circumstances, the use of his name, as de- 
fei)der in the action, and the interest he took in the proceedings, in 
furnishing information, and precognoscing witnesses, ought not to 
have the effect of subjecting him in the expenses of the action, 
without other evidence that he was truly the employer of Murray.* 

The Lord President concurred ; but thought that the two de^ 
fences of prescription and non-employment should not have been 
blended as they had been, and that Donaldson should have rested 
his defence on one alone ; but, on the other hand, he did not think 
that the assistance which he gave in the proceedings ought to have 
the effect of subjecting him, it being ho more than what, as dis- 
ponee, he was bound to afford to his author, whom he looked to for 
relief under his clause of warrandice. 

Ijord Craiffie also concurred, although with considerable hesita- 
tion. The burden of the defence, in tlie action referred to, appear- 
ed to his Lordship to depend on the event, of the litigation, which 
having been, in general, favourable to the defender, ought to have 



No. 25. COURT OF SESSION, 105 

fidlennpon him as the purchaser; and agaiilst him the claim was 8 Dec. 1831. 
not properly for payment of a writer's acooant, but for relief of 
sums nsefuUy employed for his behoof. Livingston v. 

• The Court therefore adhered. Donaldson. 

JLord NnDtont Ordinary. Act Skau, J, Andencn. J, Livuiffeion, W. S. Agents 
Alt. Rytherftard, LuUdm. Z>. CampbiU, W. S. Agent. Z>. Clerk. 

C. 



SECOND DIVISION. 
No. XXVI. • 10 December 1831. 

JAMES i^OX 

against 

MISSES STEAD and Others. 

Bankrupt. — SEQU£8TRATiON.-r.PROCE86. — I. It is competent to 
. reclaim against interlocutors of the Ordinary on the Bills^ in appli- 
cations to his Lordship under the bankntpt act. 
II. It is not competent for a trustee on a sequestrated estate to petition 
for confirmation of commissioners, orfojr authority to dispose of the 
bankrupts property by private sale. 

Cox, as trustee on the sequestrated estate of Stead and Patersoh, 
presented a petition to the Lord Ordinary officiating on the Bills 
daring vacation, stating that there was a contested election of com« 
missioners, but neither set of persons nominated had taken any steps 
for bringing the merits of the election to judicial determination ; and 
therefore praying that one or other of the parties should bie found 
to have been duly elected. There was a farther prayer, * In the 

* meantime, to authorise and appoint the petitioner to sell and dis- 
' pose of the stock in trade by private contract, upon a valuation by 

* person^ of skill, at such price, and upon such terms as can be got 

* most beneficial to the estate ; and to submit and refer doubtful 
< and disputed claims and differences.* 

It was answered by certain of the creditors — That the petition 
M'as incompetent. The duty of tiie petitioner, as pointed out by 
sections ^7 and 34 of the bankrupt act, and exemplified in daily 
practice, was merely to transmit the minutes of the election to the 
process of sequestration, leaving it to the parties claiming the of- 



loe 



DECISIONS OF THE 



N6. M. 



Cox V. Stead 
anil Otbcri. 



10 Dec. 1831. fice of commbsioners to apply by petidon for confirmation of theif 
election. The other parts of the prayer of the petition were equal-* 
ly unprecedented and incompetent. 

The Lord Ordinary < having particnhurly considered the mode 
^ of the application relative to the matter mentioned in the petition, 
^ finds tliat the same is not in proper form ; therefore, refoses the 
< application at the instance of the present petitioner, and finds him 
^ liable in expenses to the respondents, reserving always entire 

* to either set of commissioners to apply to the Lord Ordinary on 
^ the Bills, in the usual and proper form, to be confirmed in the man- 
^ ner pointed out by the bankrupt act, and whereby the rights of 

* the competing comuMssioners will be legally determined.' 



Respondent*! 
Pleaa. 



The tmstee having redaimedy it was objected, that as the Lord 
Ordinary, by the bankrupt act, is, when the Court is not sitdng, 
vested with the full powers of the Courts his judgment cannot be 
subject to review. But the Court, in respect of the decision in the 
case of Dunlop v. Auchterson and others, 9 June 1827, repelled 
the objection. 



Court. 



Judgment. 



On tke meritiy haw t i t u^, their Letdshi y i #eie dearly of opinion, 
that the petition was in all respects incompetent. It was observed, 
diat, on the supposition of the refusal of both sets of eommissionert 
to accept (he ofiice or to apply for confirmation, the course which 
the trustee ought to have followed, was to come to the Court for 
authority to call another meeting of the creditors for a new election 
of commissioners. 

The note was accordingly refused, reserving the question, whe- 
ther the trustee personally, or the sequestrated estate, was liable for 
the expenses of process. 



Lard Bti^rt^^ Oidinary. For the PetitioiMr, P. Eobertmnkt A. MwimSU Jm$* 
Tmfhr, Agent. For the Respondenta, Dmmo/Fac, fBopeJ^ OreenthukU^ 

C, J. F. Orr, W. S. Agent. F. Clerk. 

S. 



No. 37. COURT OF SESSION. 107 



JPII^T DIVISION. 

No. XXYII. 14 Decmbtr IWi. 

JOHN YOUNG 

againgt 

A. W. & G. SMART. 

ACTOB. — Sale. — A commUsion^eni hairing purchoHd grmfi fir 
his emphftrf tut without menticninff the employer's name^ and the 
eellet having taken the agenfe bill fir the amount^ andthecammie^ 
eion agent having fidled m debt to his principal before the bill fir 
the grain became due, found, that the seller had no recourse against 
the principal fit the amowU of the bill* 



](oB£RT CowAK^ wbo wBB employed by the defenden as 
agent in purchasing grain, purchased from the pursuers 320 boUi 
of wheat at the price of L464^ He did not iafonn the pursuer 
that he made the purchase for the defenders^ and the pursuer took 
Cowan's own bill for the amount at four months* Two days after* 
Ward% Cowan wrote to the defenders that he purchased this wheat 
for them, and at the same time sent an invoice, which mentioned the 
date at which the price was payable, and that he had debited them 
with the amount At that time Cowan had grain of different kinds 
belonging to the defenders on consignment for sale ; and aJEter the 
purchase of the wheat, but before the bill which he had granted 
for it became due, he had sold different parcels of the defenders' 
gndn, not only to the amount sufficient to cover the price of the 
wheat, but to leave him debtor to the defenders in a balance of L.86. 
Cowan soon afterwards jGEuled, and the defenders ranked upon his 
estate for the above balance. 

When the bill for the wheat which had been granted by Cowan 
became due, the pursuer appHed to the defenders for payment, <m 
the groimd that the purchase was made by Cowan, as their agent, 
for their behoof; but the defenders having denied their liability, the 
pursuer raised the present action against them, concluding for the 
price of the wheat. 

Pleaded for the pursuer — 

The defenders having, by the intermediation of their agent, pur- Punuer*! 
chased the wheat from the pursuer, and having received delivery ^'***'' 
tlbereo^ were Gable in payment of the price at^ the expiry of the 



)08 



DECISIONS OF THE 



No. 27. 



Young i;. A. 
W. andG. 
Smart. 



H Dec. 1831. Stipulated period of credit They were informed by their agent of 
the time when the price was payable ; and, therefore, they would 
not have been freed from a liability for that price to the seller, even 
if they had advanced the amount to their agent in the intermediate 
period ; but at any rate, having made no advances or payment on ac- 
count of the price of the wheat, they are not entitled to withhold 
payment of the price from the pursuer, in order that they may ap- 
ply it towards payment of a debt due by Cowan arising out of sales 
made by him as their, agent. 



Defenders* 
Pleai. 



* ' Pleaded* by the defenders- 

There havingf been, in point of fieu^t, no contract between the pur- 
suer and the defenders for the grain in question, the defenders are 
not liable for the price. 

The pursuer having made his election, and dealt with Robert 
Cowan, not as the agent of the defenders, but relying on his credit 
alone, and having taken his bill for the price, and the defenders being 
no party to the bill, no action can be maintained against them for 
the amount; Hood v. Cochrane, 16 Jan. 1818. 

The transaction having been made with Robert Cowan in such 
a way as to put it in his power to retain the price from the defend- 
ers' funds in his hands, and he having actually done so, and become 
insolvent, the loss thence arising ought, in equity, to be thrown upon 
tl^e pursuer. 

The Lord Ordinary sustained the defences, but found no expen- 
ses. due. His Lordship added the following note : < The Lord Or- 

< dinary conceives this case to be regulated very much by the prin- 
^ ciples adopted by the Court, in deciding that of Hood against Coohr 
'j^ane, 16 January 1818. The wheat here, though no mention 
^ was made of the defenders at the time of the purchase, was bought. 

< by Cowan for them ; and the pursuer, if nothing further had fol- 
^ lowed, might have been entitled to demand payment of the price 

* either from Cowan or from them. But having, when he knew, as- 

* he admits in his condescendence, that the purdiase was for Uieir 
^ behoof, taken a bill from Cowan individually, he must be held to 
^ have made his election, and to have taken him for his debtor. By 
' taking the bill, also, he put it in the power, of Cowan to retain for 

* his relief the price of grain sold by him for the defenders, which 
^ they were demanding, and which it was possible they might other- 

< wise have recovered before Cowan's bankruptcy. But, as the 

< question is not free of difficulty, the Lord Ordinary has not given 

* expenses.' 



Judgment. 



The pursuer reclaimed^ but the Court adhered, and found the de- 
fenders entitled to expenses, subject to modification. 



No. 27; COURT OF SESSION. 109 

Lffrd Balgray observed — That the general principle, as to the lia- ^* Dec. 1831 
bility of a party for contractions by his agent or factor,, does not ap- ^'^f^^ 
ply to the drcumstances of this case. The pursuer, at the time the \r."aiKl^6. ' 
sale was made, does not seem to have known who the parties were Smart. 
for whoip Cowan acted. He trusted to Cowan's responsibility alone, opinion of 
and took his own personal bill for the amount ; and this would ap- Court, 
pear to have been done even after he knew the purchase was for 
the defenders. The defenders, seeing that the pursuers trusted to 
Cowan's personal responsibility alone, were justified in putting 
Cowan in funds to meet the obligation, which in fact was the case, 
by their allowing him to sell the grain they had consigned in hi| 
hands, and apply the proceeds towards extinguishing the sum which 
was at their debit in his books from the purchase of the wheat 

Lord President and Lord Gillies concurred. 

Lorfl Craigie observed, that a considerable part of the grain in 
question had been delivered by the bankrupt to the respondents, 
after his public bankruptcy, which, as proprietor of the grain, he 
could not warrantably do. But, as it appeared to his Lordship, the 
bankrupt had, at no time, bectome proprietor of the grain. Although, 
by subscribing billsy he had made himself liable for the price, he had 
previously announced that the purchase was not for himself; and 
that the respondents were the purchasers, was proved by the terma 
of the invoice m^de out two days after the sale, and sent to the re- 
spondents, in which the circumstances of the transaction are correctly 
stated, the defenders being mentioned as purchasers, and the bank* 
rupt as their commission-agent. . By receiving and acting upon this 
invoice, the respondents became liable for payment of the biUs, 
which were not due, and in fact were not paid at the date of the 
bankruptcy. The accounts referred to, which are continued fot 
some time after the bankruptcy, do not prove payment, but the con- 
trary. 

Lord Neufton, Ordinary. Act. Jameaon. S. WordsworUi, Agent* Alt. Shenet 
A, Wood. Fotherijngham jr Lwdaay^ W. S. Agents. D. Clerk. 

T. 







no 



DECISIONS OF THE 



No. S8. 



SECOND DIVISION. 



No. XXVIII. 



14 Deetmbtr 1881. 



CALEDONIAN IRON AND FOUNDRY COMPANY 

affcdnit 
DAVID CLYNE. 



Pursuers* 
Pieaa. 



Defender*! 
Pleai. 



AFPBAL.~-Exp£NSE8.-^^jW(^men/ cfthe House of Lards reversinff 
a decree in terms of the libdy and remitting to ^ Cotcrt to doftt" 
ther in the cause cls shall be jttst and consistent with this judgment^ 
entiOes the Court to entertain the defender's claim fir expenses prior 
to appeal^ and to award the whole or part of such expenses^ regard 
being had to the special grounds of reversal 

In an action at the instance of a majority of the partners of the Ca- 
ledonian Iron and Foundry Company, a joint-stock concern, against 
Clyne, for payment of several instalments of his subscribed shares 
of the Company's stock, the Lord Ordinary decerned in terms 
of the libel, and found the defender liable in expenses ; and the 
Court adhered, and found additional expenses due. The case be- 
ing taken to appeal, the Court granted warrant for interim execution. 
But by the judgment of the House of Lords, it was ordered and 
adjudged, * that the interlocutors complained of be reyeraed ; and 
* it was fiurther ordered, that the said cause be remitted back to the 
' Court of Session in Scotland, to do further therein as shall be 
< just, and consistent with this judgment.' 

In the petition to the Court to apply the judgment of the House 
of Lords, the defender prayed to be assoilzied from the conclusions 
of the action, and to be found entitled to the expenses incurred by 
him in this Court. 

To the latter demand it was objected, 1^, That as the judgment 
of the House of Lords simply reversed the interlocutors of the 
Court, without saying any thing about expenses, it was incom- 
petent to the Court, under the remit, to award to the defender any 
part of his expenses. 2dj Supposing the competency of such de- 
mand, yet, as the ground of the reversal was not amongst the de- 
fences mainly relied on in this Court, the defender's ultimate suc- 
cess affords no reason for finding him entitled to any expenses. 

Answered — Ist^ The ground of decision in Dick v. Cuthbertson, 
19 Jan. 1828, applies a fortiori to the question of competency in the 



No. 28. COURT OF SESSION- HI 

present case. It cannot reasonably be doubted that the cau^e was re- l^ ^^* l^^ 

mitted for no other purpose than to enable this Court to find expenses 

due to the defender, it not being the practice of the House of ],^q ^nd 

Lords to give expenses against the respondent in the appeal. tM, Foundry c^ 

Although the Lord Chancellor held one of the defender's pleas suffi* ^' ^'^ 

dent for the decision of the cause, it appeared that he entertained 

no doubt of the validity of the other grounds of defence. 

The JudfftM were unanimously of opinion, that the judgment of Opinion of 
the House of Lords did not preclude the consideration of the de- 
fender's claim for expenses ; and that the question was to be taken 
up just as if it were before them on a reclaiming note against the 
Ordinary^s interlocutor, and they, differing from his Lordship, had 
decided the cause on the particular ground proceeded on by the 
House of Lords. In this view, therefore, their Lordships lield^ 
that, as the defender was ultimately successful on a ples^ which cer- 
tainly was not his main defence, he could not be found entitled to 
his whole expenses, though it was reasonable that some part of them- 
should be given him. 

The Court accordingly assoilzied the defender from the eondu* Ju()g««ot. 
sions of the action, and found him entitled to expenses hitherto in- 
curred in this Court, subject to modification, tt^ether with the ex- 
penses of the present application. 

For the Funuen, RytJt^/urd, A, Dunhp* Jofm Ksanedy, W. S. Agwit For 

the Defender, Dean ofFac. ^ Hope, J More, MaidmenL Party, Agent. 

s. 



^^^^^^wT^^ S 



SECOND DIVISION. 
No. XXIX. 14 December ld3L 

CALEDONIAN IRON AND FOUNDRY COMPANY 

offavist 
DAVD CLYNE, 

E^^PENSES. — Process. — Judicature Act, 6 Geo. IV, c. 120. — 
h The judicature act doe^ not authorise a» abandonment ofan action 
in the COUTH of the prepetraiion of the eanee. 

11. It U ineompeteittf be/ore the recgrd is elosedj to pronounce decree of 



112 



DECISIONS OF THE 



No; 29. 



14 Dec. 1831. 



Caledonian 
Iron and 
Foundry Co» 
V. Clyne. 



. absolvitor on the puntuer abandoning the causey without ^finding the- 
defender entitled to expenses. 

After the presentment of the appeal mentioned in the immediate-^ 
ly preceding report, the pursuers in that case raised a second ac-« 
tion against Clyne, for payment of two other instalments which 
subsequently became due. An ineffectual attempt was made, at 
the commencement of the cause, to sist procedure till the issue of 
the appeal, the pursuers having adjected to the proposal a condi- 
tion to which the defender refused to accede. The parties, there" 
fore, proceeded to prepare the record ; but while in the course of 
doing so, the judgment of reversal was pronounced. Thereafter 
the defender having moved the Lord Ordinary to make avisandum 
with the process, preparatory to closing the record, the pursuers 
gave in a minute, stating, that, as the objection sustained by the 
House of Lords to the former calls applied also' to those sued for 
in the present action^ they had determined to abandon the case, to 
consent to abscdvitor being pronounced, reserving their right to pro- 
ceed against the defender as a partner of the Company, for payment 
of such share of the loss as, on a final winding up of the concern, 
might appear to be due by him. The defender objected to the pro* 
posed reservation, and to any judgment being pronounced other 
than an unconditional decree, proceeding on the judgment of the 
House of Lords, and the consent and motion of the pursuers, sus- 
taining the defences, assoilzieing the defender from the conclusions 
of the action, and finding him entitled to expenses. 

Thereupon the Lord Ordinary intimated to the parties, that he 
was to report verbally to the Court < the point stated in the minute 

< and answers, whether it be competent to the Lord Ordinary 
' to assoilzie the defender from this process, on the pursuers aban* 

< doning it, with the view of bringing another action against the de- 
^ fender, without finding them liable in expenses to him *.' 

* Hia Cordabip iaaued at the aame tfane the following note : ' The Ltotl Ordi- 
' nary haa taken this point to report at the request of the pursuers* The opinion which 
' he has formed upon the point is this i While it is imperative on the Court (in virtue of 

* section 10 of the judicature act,} to award full expenses to the defender, if the pursueft 
' after the record is closed, ynd all the expense in noaking it up incurred, wishes to aban- 
' don the cause, in order to supply an omission in point of fact, which, at an earlier pe- 
' riod of the process, might be supplied by an amendment of the libel, that it is not im- 
' perative to awsond expenses, if the ground for not proceeding with the process be not 
' the improper omission of an averment in point of fact, but arises from some other 
^ ground, with regard to which the pursuer is not in fault by having wilftilly withheld 

* or negligently omitted it, ntore especially if the record is not completed and cldked ; 
* * and that the judicature act has left the effect of such a step as this to the ordinary rules 

' by which expenses ar« awarded on the dismissal of a process. These rules are to be 

* found in the conduct of the panics. Now, the former action against the defender con- 



N^. 29. 



COURT OF SESSION. 



113 



This point being accordingly reported to the Court, tlie Lord 1^ ^^' l^^l* 
Justice'Clerk said — I entirely concur with the Lord Ordinary, that ^^^VT^ 
the provision of the act of Parliament does not apply to a case like jron ^ndT 
the present. But then comes the question, is not the defender entitled Foundry Co. 
to his expenses, upon the pursuer's abandonment of the action and ^"^' 
consent to a judgment of absolvitor ? I think he is so entitled ex de- Opinion of 
bito jnstitise ; and in giving that opinion, I do not look into the me- 
rits of the former action, or grounds of the judgment of the House 
of Lords. 

Lord Glenlee. — I am entirely of the same opinion. 

Lards Crianghtie and Meadowbank also concurred. 

The Lord Ordinary, accordingly, in respect of the instructiops judgment 
of the Coigif assoilzied the defender, and found him entitled to ez- 



Lord Mtdw^ OrdiiMiy. Far the Pursuers, BnAtrfitrd, A, Dwdtap. John 

Kamedy, W. S. Agent. For the Defender, Dean of Foe, fHope^J More, 

MaidmaU, Pkurty, Agent. F» Clerk. 

S. 



daded for die amount of four calls of stock, alleged to be due by the defender, which 
wem aU that were tbeo due. In that action decree was obtained, and, as the report 
bears, unaainsoualy. In April the present actioo was raised for two further calls. 
The defences are extremely numerous and minute ; but it is not stated as a defence 
that the calls were made by a quorum only, and not by a majority of the directors : 
Neither is this fact stated in the answers, so that the defender plainly did not rest up- 
on this defence. Nay, it ia not eren stated in the vevlsed answers, nor any plea in law 
founded on it 

* When this process came before the Lord Ordinary, a proposal was ineffectually made 
as to sisting process till the result of the appeal of the other action should be known. 

* The judgment in the first acdon was rerersed, on the ground that the calls had been 
mide only bj a ^norum of the directm. 

< On this it was intimated to the defender, that the pursuen did not mean to proceed 
with this actioo, so that he need not revise the answers which were to be given in by 
the first sederunt^ay in November. 

* The present minute was lodged of this date, (Nov. 14i.) consenting to absolvitor 
being pronounced, reserving right to proceed againat the defender aa a partner of the 
company. The defender otgects to thu reservation, and insists farther, that the pur- 
suers can only abandon their action on payment of expenses. 

' Under all the circumstances of the case, it is the opinion of the Lord Ordinary, that 
If it be not imperative by the etatute, that the defender shall have expenses on being 
asBoOaied, the ctrcumatances of this case do not warrant this daio on any o4cr ground ; 
but further, it does not appear that any reservation need be inserted in the decree of 
absolvitor, for the medium concludendi of the proposed action, as well as the sum to 
be concluded for, are not the same as those contained in the present action, and that 
an absolvitor fVom it will not interfere with the right cf the partners of the company 
to claim a share of the loss from a copartner in a new action, with a proper narrative 
and conclusions. If the Lord Ordinary is right in this opinion, it is a further con- 

VOL. VII. H ' 



•114 DECISIONS OF THE No. 30. 



SECOND DIVISION. 

- No. XXX. 15 December 1831. 

WORDIE 

offainsi 

MACDONALD. 

Forum Competens. — Citation. — Two persons carrying on busi- 
nesSf apparentty tn partnership together, being cited as individuals^ 
and not its a company^ within a jurisdiction where they had no per" 
sonal domicil but only a place of business^ and one of them who 
had been personally cited having entered appearance ^for himself 

' * ctnd the other^ but having died before decree was pronounced^ — 

founds that the proceedings were null as against the other dtfender^ 

who had entered no appearance^ had received no personal citation^ 

and denied the partnerships or tliat he had any domicil within the 

jurisdiction of the Court to which he was cited, 

Macdonald brought an action before the Justices of Peace for 
the county of Lanark, for wages, against John and William Wor- 
dies, carriers between Glasgow and Stirling. The defenders were 
father and son, and, as the pursuer alleged, carried on business iu 
partnership together. Their place of residence was at Stirling; 
but there was an office at Glasgow, where packages were received 
and marked to go by their carts. The execution of citation bore 
that the officer made due and lawful intimation of the petition 
and deliverance to the within-designed John and William Wordie, 
by delivering a copy to the said John Wordie, personally appre- 
hended.' 

Answers were lodged to the petition, drawn by a writer in Glas- 
gow, which were signed by * John Wordie for self and W. Wordie.' 
The Justices, on considering the answers and replies, allowed a con- 
junct probation to both parties; but in the interim John Wordie 
died, and there was no evidence that William Wordie attended 
the proof which was led by the pursuer, or took any charge of the 
process. The Justices then pronounced the following interlocutor 



* firmation of the view be takes of the inappUcubility of the judicature act to this case, 

* as he undentandft that such a reaerratioii would be necessary in the case there provid. 
< ed for, to enable tlie party to institute a second action, and that the price of this pri« 

* vilege is the payment of the full expenses of* the Hrst aclfon/ 



No. 86. COURT OF SESSION. 115 

and decree : * In respect that the defender John Wordie is dead, 15 Dec. 183L 
^ vacates the process quoad him until his representatives be called ; ^^^m^/^^ 

* but in respect that the defender William Wordie has failed to w***^'* **; . 

* prove, circumduces the term allowed him for proving, and eon- 
^ eludes the proof; and on the merits, decerns against him for the 
^ balance of wages, L.5, lOs. concluded for ; further, finds him liable 

* in expenses,' &c. 

When this judgment was extracted, William Wordie brought it Suspender's 
tmder review by suspension, sndpleeuled — That the charge was null, ^^ 
because the suspender had no domicil in Lanarkshire at the date 
of the above citation, and therefore was not amenable to the juris- 
diction of the Justices of that county. 2d7^, That even if there had 
been a cqNirtnership between John and William Wordie, which 
the suspender denied, and if the company had been properly cited, 
then William Wordie as an individual was not cited, and the charger 
was not entitled to take any decree against him ; and, 3i%, That 
the record shewed that the proceedings had been taken against him^ 
not as a partner of a company, but as an individual, and that, con- 
sequendy, he had never been properly cited, or made a party to the 
action. 

The respondent answered — That John and William Wordie ha- Respondent's 
irmg had a place of business at Glasgow, might be competently ^'^*^ 
cited to answer in an action of this nature within that jurisdiction. 
And that even although the objection to the decree, on the ground 
that the defender had no domicil within the jurisdiction, had been 
well founded, the citation was homok^ted in this instance, and the 
jurisdiction prorogated by John Wordie having entered appearance, 
and subscribed tiie answers both for himself and the other defender. 

The Lord Ordinary pronounced the following interlocutor : ^ Finds« 

* That in case there truly was a company of John and William 
^ Wordie, and the debt libelled was due by that company, as aver- 

< red by the charger, then the appearance of John Wordie in de- 
' fence against the charger's action, as for himself and his partner, 
' before the Justices, was sufficient to warrant them to sustain pro- 
' cess against the company, and to decern against the suspender 
' personally, as one partner thereof; but finds the existence of the 

< company, and the contraction of debts by that company, denied 

* by the suspender, and therefore allows the charger a proof oi 

< these averments prout de jure, and to the suspender a proof of the 

< contrary ; and grants commission,' &e. 

H 2 






IIG 



DECISIONS OF THE 



No. SQ- 



Wordie v* 
Macdonald. 

Judgment. 
Opinion of 
Court. 



15 Dec. 1831. The suspender redaimed; and the Court altered the above inter- 
locutor, sustained the reasons of suspension, and suspended the let- 
ters and charge simpliciter. 

Lord Meadowhank. — It is not averred in the record that William 
Wordie was present at the taking of the proof, or at any other step 
of the process in the inferior court ; and therefore holding that he 
was not present, and that nothing has been done by him to obviate 
the defect of the citation, we can here only decide upon the bare 
question of form, whether a citation such as was then used was 
sufficient to bring him into the Justice of Peace court of the shire 
of Lanark, either as an individual or as a partner of an alleged com^ 
pany ? I think it quite clear that it was not, for there is no dta^ 
tion of the company. It might have been a different question if 
he had appeared and sisted himself^ as John Wordie seems to 
have done. But he could not enter appearance for the other de* 
fender, except by mandate produced. I therefore think the objec- 
tion to the citation insurmountable, and fiettal to the whole proceed- 
ings. 

Lord CrinffleHe* — I was a good deal puzzled, because it is admitt 
ted by the suspender, that parties might have dispensed .with dtav 
tion by entering appearance ; but in this case all sort of formjseems 
to have been neglected. In the proof taken in the inferior court 
no partibus are mentioned. 

The Lord JusHce-Ckrk. — There have \\f^i great irregularities 
here ; and although one must regret the neoeasity of «nfoK;ing the 
strict rules of form in such a case as the present, I could figure some 
of the most important questions tiiat could arise, in which all .our 
rules of procedure would be shaken, if we eould sustain such a ci- 
tation as thk. 
* Lord Gknke concurred. 



Lord Ordinaiy, Mmckmwm, Act. Oamgkame^ Alt Sham and P^Unon, 

. W. Mob$nKn and i7. CuBm, Agents. T, Clerk. 

u. 



No. St COURT OF SESSION. 117 



FIRST DIVISION. 

No. XXXL 16 December 1831. 

JOHN GOWANS 

offoinst 
DAVID OSWALD. 

TuTOB AHD Curator. — Prescriftiov. — Stat. 1696, a 9. — 
Hdd^ 1. I^at a curator had not forfeited the benefit of this statute 
by neffleetinff tomake up inventories ; and^ 2. That he hadnot waived 
the defence of 'prescription^ by consenting extrajudtdatty^ before an 
actum of count and reohmxng was brought against him^ to give the 

pursuer information respodtxng the affairs of the curatory* 

♦ • 

Iv 18045 the defender, David Oswald, maternal uncle of the pur«- 
sner, John Oowans, was appointed his eurator, and entered upon 
the management of his affidrs, without, as it appears, having made 
op inventories. The pursuer reached majority in 1811, but made 
no demand t^)on the defender until 1827. Mutual claims were 
then made by the parties against each other. The pursuer, as a 
man of business, had been employed by the defender to conduct 
certain roups of his crop and stocking, and a demand was at this 
time made by the latter for a settlement. On the other hand, the 
-defender, in answer to applications by the pursuer for an account 
^ his intromissions, wrote the following letter, 25 Jan. 1827 : ' In- 

< closed you have a statement of my intromissions, as curator for 
^ you on your late father's estate of Stanrae, together mth your 
^ roup-roll and goods sold off said estate, during 1804-5, which I 

< hope you will find correct, and prove satisfieictory to you. It ought 

< to have been finally settled long ago, but it was always my un- 

* derstanding that it was settled betwixt us already ; for you, as 
^ well as your mother, knew perfectly well how matters stood in 
^ that respect But as the state now of the affairs is herewith 

* sent, I hope you will examine it soon, and let me know how you 

* find the statement, and when it may be finally adjusted,' &c. 
Thereailer mutual actions of count and reckoning were raised by 
the parties against each other. The one at the instance of the pre* 
sent pursuer concluded, that the defender should be decerned and 
ordained to exhibit and produce a full and particular state of ac-- 
counts of his whole intromissions with the pursuer's estate, with the 
whole vouchers and other documents relating thereto, and that he 
should be ordained to make payment of the balance, &c. 



118 



DECISIONS OF THE 



No, 3r. 



Gowans v. 
Oswald. 

Defender's 
Pleas. 



16 Dec. 1831. In defence it vrs^ pleaded — 1. The defender's actings as curator 
for the pursuer were known to, and approved of by him and his 
mother, both at the time and since he became major. The pursuer 
never challenged these actings, nor did he allege that the defender 
owed him any thing till long after the years of prescription, when 
he did so, merely as a set-off against a demand made by the de- 
fender against him. The defender denies that he is in the pursuer^s 
debt On the contrary, he expended much more on his account 
than he ever intromitted with, a thing known not only to himself, 
but to his mother and other relations. 

2. The act 1696, c. 9, enacts, < That all actions of count said reo- 
^ koning competent to pupils and minors against their tutors and 

* curators for making up their accounts, not pursued and insisted 

* in within the space of ten years after the majority of said pupils 
^ and minors, or after their death, they dying in their minority, 
^ shall, after that time, prescribe for ever; and the saidtuttHV and 
' curators, and their successors, shall be as fully exonerate and 
"^ liberate, as if the said pupils and minors after their majority had 

* fiiUy and amply discharged the same.' In terms of this enact- 
ment, it is incompetent for the pursuer, after the lapse of upwards 
of eighteen years from the date of his attaining majority, to insist 
in an action of count and reckoning against the defender as his cu^ 
rator. 



Pursuer's 

Pleas. 



Answered for the pursuer — 1. The defender never having made 
up or rendered a proper account of his curatorial intromissions widi 
the pursuer's estate, and never having come to any settlement there- 
of, although he was constantly called on, and often promised to do 
'both, from the expiry of his office down to the institution of the pre^ 
^ent action, he is still liable to render a just count and reckoning of 
fais intromissions, and to make payment of the balance that may 
be ascertained to be due thereon. 

2. The defender not having complied with the requisites of die 
act 1672, c. 2, in making up curatorial inventories on entering into 
the administration of the pursuer's estate, is still liable to account 
for all his intromissions thereof, and is not entitled to the benefit of 
the presumptions and prescription contained in the act 1696, c. 9.. 

8. The defender having admitted, by writing under his own 
hand, after expiry of the years of the decennial prescription, that 
his curatorial accounts had not been settled or adjusted, and that 
this ought to have been done long ago, and having only lately Ten- 
dered his accounts, though in an incorrect state, long after that pe<- 
riod, he is now barred from pleading the benefit of the presumption 
and prescription introduced by the act 1696. 



N6. 31. 



COURT OF. SESSION, 



119 



The Lord Ordinary finds, * That more than ten years had elapsed 16 Dec. issr. 

* firom the termination of the pursuer's minority, before the present ^^"^V^^ 
^ action was brought : Finds, That a curator, by ne^ecting to make q^.^^jj^, ''' 

* up inventories, does not forfeit the benefit of the statute 1696, 
^ c 9, which introduced the decennial prescription of tutorial and 

* curatorial accounts : Finds, That the defender did not waive the 
^ defence of prescription, by consenting extrajudicially, before the 
^ action was brought, to give the pursuer information respecting the 

*• affidrs of the curatory : Therefore sustains the defences, assoilzies ' 

< the defender, and decerns : Finds him entitled to the expenses of 
' process, and remits the account thereof to the Auditor, to tax 
' and to report*' 

^ Note. — In the case of Mercer v. Irvine, not mentioned in tlie 
^ pleadings, it was found that a tutor has the benefit of the act 1696, 
' c. 9,. though he neglect to make up inventories. In other respects, 

* this action is brought in circumstances singularly unfavourable for 
' the pursuer. The pursuer attained majority in 1811 ; more than 
' sixteen years afterwards, he intromitted with funds belonging to 

< the defender, and having refused JUi account for them, an action 

< was raised against him by the defender, as a set-off against which 
> he insists in this process.' 

The Court unanimously adhered, after hearing counsel for the judgment. 
pursuer on a reclaiming note for him. 

Lard Balgray said — That the statute in question was one highly Opinion of 
beneficial to the country* The office of curator was a gratuitous one, ^""^ 
and generally attended with a good deal of trouble ; and the near re- 
lations were induced to undertake it for the benefit of minors, in con- 
sequence of the protection afforded by the statute. Notwithstand- 
ing all the care they might take, it was possible that inventories 
might not be made up, and that other inaccuracies might occur ; and 
it would be a great hardship on parties, to subject them, after the 
kqpse of the statutory period, for alleged omissions, against which, 
it appeared to be the intention of the Legislature to protect tliem. 
Inst^ul of narrowing the provisions of the statute, the tendency of 
the Court ought to be to extend them. It substantially declared, 
that after the lapse of ten years, it should be held that an account- 
ing between the parties had taken place, and the curator dis- 
charged, the very purpose of the statute being to protect the party, 
who, after this time, had no accounts to produce. With regard to 
the letter of 1827, his Lordship was induced to put a very favour- 
able construction upon it, as shewing a disposition on the part, of 
the defender to afford all the information in his power, without de- 
parting from his legal defence. His Lordship wa^ clear that the 



120 DECISIONS OF THE No. 31. 

16 Dec. 1831. loterlocutor was well founded, both on the principles of law^ and 
^""^V^*^ on the circumstances of the case. 

olwM. ''' "^^^ ^^^ Judges concurred. The Lard President placed the 

same interpretation upon the letters of the defender. Although he 
had a clear legal defence on which he was entitled to rely, without 
entering into particulars, it was &ir in him to say that he was rea- 
dy to afford explanation. If this was held as a bar to the plea of 
prescription, it would discourage relations from undertaking this 
useful office. It was a gratuitous one, and in this respect different 
from that of a factor loco tutoris, and other judicial appointments, 
where salaries were allowed. 

Lard Gillies observed — That nothing ought to be done by the 
Court to discourage relations from taking this office, which was so 
beneficial to minors. His Lordship was also clearly of opimkm, that 
the defender was not barred from pleading prescription by his let- 
ter in 1827, in which, instead of standing on his strict legal def^mce, 
as he was entitled to do, he, acting like an honest man, offered 
to give the pursuer all the information in his power. 
Lard Craigie also concurred. 

Lord CcrAoMBt Ordinary. Act. ShmB^ TftZnon. TFm. MtrctTt W. S. AgCDtk 

Alt. More^ Brmunke, AUx, Johnston, W. S. Agent. D, Clerk. 



SECOND DIVISION. 

No. XXXII. 16 December 183K 

STARK 

Offainst 

SMITH. 

Bill ov Exchange. — Proof. — Redelivery of a biU beisng claimed^ 
an the allegation thai the defender had violated an agreement to dis^ 
count itj and pay the proceeds to the pursuery and the defender hor 
ving admitted that he did not give any present value for the bLlj 
but received it towards payment of a debt, said, to be ovnng by the 
pursuer y but which the latter affirmed to hope beenpaid^^^owsd^ that 
judicial examination of die definder was competent^ though pleaded 
that the only legal proof of Hie pursuer's allegation was by unit or 
oath of the defender. 



No. as: COURT OF SESSION. 121 

jStaak presented a pedtion against Smith to the Sheriff of Lanark* I6 Dec. 183K 
shire, stadng, that he had, two days before, put into the hands of ^*^V^^ 
anith abiU for L>,28, lOs., drawn by him upon and accepted by ^^^^' 
one Bryden, * for the purpose of his discounting the same, or get- 
tfaig it discounted, and under the express agreemenib that Smith 
should meet the petitioner at a p£tfticular place and hour on 
the day following, either to give the petitioner the proceeds, 
under dlBduction of the ordinary discount, or to return him the 
Mil :' That Smith did not attend according to appointment, but 
sent his son, with a state and letter, produced with the petition, 
from which it would appear, that, in breach of the trust reposed 
in him, and in violation of the special purpose for which the bill 
was indorsed, he means to appropriate the same towards payment 
of a pretended old bill which he says he holds against the petition- 
er and others, but which was long ago paid by the acceptor.^ The 
petitioner concluded for a warrant for apprehending Smith for exa- 
mination, and thereafter that he should be ordained forthwith to 
restore the bill, or the proceeds thereof, to the petitioner. 

Smidi gave in answers to the petition, affirming that the bill 

* was giren to the respondent towards settlement of accounts be- 

* tween the parties, 'and the pursuer said not a word about an im- 

< mediate return of its contents ; nor would the respondent have 

< come under any such engagement, though he certainly intended 

* to give to Mr Stark any difference that might appear to arise be- 

< tween the amount of that bill and the other sums owing by him 

< to the respondent,' being, as stated in the letter referred to in the 
petition, L.3 : 2 : 2* ^ But on a more accurate investigation of the 

* state of accounts between the parties, the respondent found, that;, 
^ even after crediting the bill in question, Mr Stark would be the 

* respondent's debtor,' &c. The pursuer having, along with his 
replies, produced an alleged holograph acknowledgment of the de- 
fender of payment of the debt, by means of which the defender 
had thus turned the balance of accounts in his own favour, the 
latter ultimately expressed hiis willingness to abide by his first 
state. But he pleaded, that neither the alleged nonronerosity 
of the indorsation of the bill in question, nor the conditions upon 
which the bill was said to be delivered to the defender, could be 
prored otherwise than by his writ or oath ; and, consequently, the 
proposed judicial examination was incompetent. The Sheriff, < in 

< respect that the pleas of both parties infer a ehatge of decep- 
> tion and fraud against each other,' ordered them respectively to 
undergo a judicial examination. Both parties accordingly emitted 
declarations, upon considering which, the Sheriff ordered the de- 
fender to lodge in process the bill in dispute, and afterwards re- 



122 



DECISIONS OF THE 



No. 32: 



Stark V, 
Smith. 



16 Dec. I83l.pelled the defences; found the pursuer entitled to have die bill 
restored to him, and authorised die clerk to take the same out of 
process, and to deliver it to the pursuer as his own property. 

The defender advocated the cause, and, besides the defenees ori- 
ginally pleaded in the inferior court, maintained, 1st, That as the 
pursuer's statement resolves into a plea that the bill in question, 
which he admits to have been indorsed and delivered to the defend- 
er without qualification, was so indorsed and delivered to him as 
trustee for the pursuer, and under an obligation to deliver the 
proceeds to him after it was discounted, and not, as the defender 
alleges, in payment of a debt due to him by the pursuer, the 
only competent proof of such alleged trust is by writ or oath of 
the defender* 2d, But assuming the correctness, in point of 
form, of the proceedings before the Sherifi*, the interlocutors com- 
plained of were inconsistent with the evidence. The case of Lyon 
V, Fell and Others, 16 Feb. 1830, founded on by the pursuer, can- 
not be pleaded to any greater effect than. this, that when a party 
admits that he did not give present value or cash for the biU, he 
may, not incompetently in certain circumstances, be ordained to un- 
dergo a judicial examination ; but the party will still be entitled to 
the benefit of the legal presumption of value, provided hb judicial 
declaration is not irreconcileable with such presumption, which it 
certainly is not in the present ease. 



FurRuer*9 
Fleas. 



The pursuer inter aiiaL pleaded — 1st, That the circumstances pre- 
sumed fraud, and, therefore, took tiie ease out of the ordinary rule 
of evidence applicable to the indorsation of bills. 2d, That this rule 
is, besides, inapplicable in a case where no present value is alleged 
to have been given, but value consisting in old debts of which the 
existence is denied ; Lyon v. Fell, ut sup. 



The Lord Ordinary repelled the reasons of advocation, remitted 
•the cause simplidter to the Sheriff, and found the defender liable 
in expenses. His Lordship, added the following note : < The com- 

< plainer admits, that, when the bill was delivered to him, he gave 
,< no value for it ; but he avers, that it was given to him, in order 

< that, with the proceeds, he might pay himself all claims he might 
^ have against the respondent, and pay the respondent the balance ; 

* and this the xespondent denies, averring that it was given to 

< the oomplainer to get it discoimted, and to pay over the money 

< to the respondent, under a deduction for discount. In these cir^ 

* cumstances, it does not appear to the Lord Ordinary that it is a 
^ case in which proof miist necessarily be by writ or oath of the 

.^ complainer, or in whidi tiie examination of the parties was com- 



No. 32. COURT OF SESSION. J23 

* petent ; and if such extioaJnation w» competent, it is pretty evi- 16 Dm. 1831. 

< dent that it was almost the only evidence that eould exist in the ^^ v ^ "^ 

< circumstunces. Looking to the examinations, then, and comparing ^^^' 
^ them with the other statements of the respondent, the. Lord Or-* 

^ dinary is indaced to believe the averment of die respondent to be 

< the true one, and therefore thinks he ought to adhere to the Slie- 

* riff*s judgment' 

' The defender hmng redaifned^ the Lard Judiee^Ckrk said— 'If I Opinion of 
could persuade myself that this is the case of an ordinary bill tranS" ^"'^ 
action, I could not have the shadow of doubt as to the incompetency 
of the proceedings in the inferior court. But is this such a case ? 
(Here his Lordship went minutely into the case, and then pro- 
ceeded.) I am decidedly of opinion that the Sheriff did right in al- 
lowing a judicial examination, for the case presented to him was 
one of breach of trust, approaching nearly to a charge of a crimi- 
nal nature. The case of Fell is an authority here ; but I do not 
require such authority, for this is clearly out of the case of an ordi- 
nary bill transaction. With reference to the effect of the declara- 
doDS, I have no hesitation in concurring with the Lord Ordinary^ 
for a more shuffling and evasive examination than- that of the de- 
fender I never saw. 

The other Judges having concurred, the note was refused, with Judgment, 
additional expenses. 

JMl Madun2kt Ordinary. For the Pursuer, Maidtaidt J> Patersom. John 

CwBm, W- a. Agent. For the Defender, Jameson, MonteUh. J, Paterson, 
W. S. Agent. T. Clerk. 

S. 



FIRST DIVISION. 

No. XXXIIL 17 December 1831. 

POOL 

against 

MAGISTRATES OF ANNAN and COLLECTOR OF 

TAXES. 

Jurisdiction. — Act of Grace. — Prisoner. — 1. Whether a perr- 



124 DECISIONS OF THE No. 38t 

11 Dec. 1831. gtm imprisoned far a Craum debt is entided to ihe benefit of (he Act 

p I'^Cr of Orate. 

trates'of Ai^** 3* Whether the Court of Session have any jurisdiction in As ease of 
nan and Coiiec a party imprisoned in virtue of a Crown proeesSj in reference to any 
tor of Taxes. ^^^^ arising out of such imprisonment, either in regard to the 

amount or justice of the debt, or Oie aUment or liberation rfthepri^ 

soner *• 

Pool, wearer in Annan, was incarcerated in the jail of diat btirgli, 
npon a warrant signed by two Commissioners of Supply, on the ap** 
plication of the Collector of Taxes, for payment of L.3 : 13 : 6, being 
the game daty. Having no funds to support himself in prison, he 
applied to the solicitor of taxes for aliment, which was refused, on 
the ground that the Crown was not liable in the aliment of its 
prisoners. Pool then applied by petition to the Ma^strates of 
Annan for aliment, which petition was refused. He then present- 
ed a bill of suspension and liberation, to which answers were lod** 
ged, both for the Magistrates and for the Collector of taxes. The 
Lord Ordinary reported the bill and answers to the Court $ and af^ 
terwards, upon advising with their Lordships, appointed ' the Ma*- 
gistrates and Collector of taxes to prepare and print cases, both oil 
the question of jurisdiction, and on the merits of the question be* 
tween them, and allow the complainer, if so advised, to put in any 
statement which he may think necessary to his interest; and, in 
the meantime, ordains the Magistrates of Annan to furnish ali- 
ment to the complainer at the rate of tenpence per day, from and 
after intimation of this interlocutor, reserving all questions of re- 
lief/ 

( An objection having been stated, that the application was irre- 
gular, the party not having applied for the benefit of the Act of 
Grace, but first by petition to the Magistrates for aliment, and af- 
terwards by a suspension, it was agreed between the parties to waive 
that objection, and that the question should be argued as if the com- 
plainer had regularly applied for the Act of Grace, and advocated 
the judgment of the Magistrates refusing it) 

Picas for Col- Pleaded for the Collector of Taxes — 

]0ctor of Taxes. 1. By the Statute 6 of Queen Anne, c 26, (which established the 

* Although the interlocator ultimatdy pronouDced bj th« Coiitt did not decide -the 
questions stated in the abbreviate, yet these c|ueitions having been fuUy argued by the 
partiesy and the opinions of all the Judges given upon them, it has been considered 
proper to report the cise. 



So. 3a COURT OF SESSION. 125 

Court of Exchequer in Scotland,) it is in iU various provisions de- 17 Dec ISSI 
dared, that every revenue or Crown debt question &lls under the -*t^^ 
jurisdiction of the Court of Exchequer, with the exception of hen- gi^^^s of * 
table rights, which it is declared by sect 22, shall continue still to be Annan and 
tried before the Court of Session, and it has been decided that this xu«k 
jurisdiction of the Court of fb^chequer is exclusive; Duke of 
Queensberry, &c. v. Officers of State, 15 Dec 1807, M. App* v* Ju^ 
risdktion. No. 19 ; Warrender v. Mackenzie, 19 June 1810 ; and 
the wbiJe of the earlier authorities proceed on the same principle i 
Erik. L 3. 31 ; Receiver-General of Customs o, Fcgo, 12 July- 
1734, M. 7589 ; Mitchell t;. Commissioners of Excise, 27 Jan« 
1748, M. 7690; Ramsay v. Adderton, 17 July 1747, M. 7590 ,<» 
Shaw V. Grosset, 5 Jan. 1750, Elch. v. JurisdicHoni No. 51 ; Thom- 
son V. Martin, 19 Dec. 1752, EIcL v. Jurisdiction, No. 59; 
Martin v. Watt, 1766, Brcmes Supp. v. 495 ; Hailes, 186. 

The principle of all these authorities is, that wherever an action 
necessarily, invidves^ny question of revenue law, oor the legality of 
any claim by or against the Crown, it is incompetent in the Court 
of Session. In so far then sb suspension and liberation is sought in 
the present case upon any grounds connected with the revenue laws^ 
the application is incompetent in this Court If redress is competent 
any where, it is only in the Court of Exchequer. 
' 2. The Act of Grace does not apply to a rjsvenue prisoner. The 
Court of Session could not decide (he obligation of the Crown to 
aliment its prisoners, without deciding the legality of a claim against 
the Crown, which is only competent in the Court of Exchequer. 
Indeed^ a case precisely similar to the present was decided, finding 
that the Court of Sessicm had no jurisdiction in an application for 
the benefit of the Act of Grace by a person imprisoned for payment 
of a tax ; Roy v. Young and Wilson, 17 Feb. 1824. 

It was fiurtber argued on the part of the collector, that the burden 
of alimenting revenue prisoners fell upon the burgh, and not upon 
the Crown ; but upon this point no <^inion was given by the Judges* 

For the Magistrates of Annan it was pleaded — That the burden Pie* for Ma- 
of aliment €xt a revenue prisoner must be laid on the Crown, the Bis^^^^e** 
incarcerating creditor, and not on the burgh ; the object of all the 
statutes relative to alimenting poor prisoners being to relieve the 
burgh of that burden. On the question of jurisdiction, or compe- 
tency, it was not necessary for them to enter, that question was 
more for the other parties to discuss. 

On advisiBg these cases, the opinion of the whole Judges was re« 
quested* on the following statement and query : 



126 DECISIONS OF THE No. S3. 

17 Dec. 1831. « The suspender, Pool, was incarcerated in the tdibootli of An- 

p fXT^- * ^^^9 itt virtue of diligence raised against him on a Crown prooess^ 

strateg'of An- ^ by Benjamin Irving, Collector of tlie Crown taxes for the bnrgK 

lectoT f T°^" * Annan, for non-payment of L.3 : 13 : 6, the tax due for a game 

' < license. Pool applied to the Magistrates, under the act 1696, 

^ c. 32, commonly called the Act of Grace. Hi* application having 

^ been duly intimated to the Collector, in terms of the said statute, he 

^ refused to lodge any aliment for Pool, alleging that the Crown is 

* not obliged to aliment persons imprisoned for non-payment of taxes. 

* The opinion of the Judges is required, ^ Whether, in consequence 
<* of the refiisal of the Collector, on the part of the Crown, to ali- 
*^ ment the prnoner Pool, the Magistrates are bound, under the 
'^ above ad, to liberate him. 

' < N» B. — The Judges will observe from the cases, that the ap- 
^ plication to the Magistrates was not in terms of the Act of Grace ; 

* and the First Division were going to refuse Pool's suspension and 

* liberation on that ground, leaving him to apply de novo in proper 

* form. But the Solicitor-General interposed, and very properly 
' stated, that this proceeding could only occasion delay and expense ; 
^ and therefore he consented that the case should be determined on 
< the footing that there had been a regular application under the Act 

* of Grace, and proceeding therein as above supposed.* 

Opinions of LoRDS JuSTICE-ClERK, GlENLEE, CrINGLETIE, MACKENZIE, 

J^dffw ** Newton, Medwyn and Fullerton, concurred in the foUowbg 

- opinion : 

We have considered the bill of suspension for Robert Pool, aad 
the cases for Benjamin Irving the Collector of Taxes, and the Ma- 
gistrates of Annan, respondents, with the question submitted to us 
by the Judges of the First Division ; and presuming tiiat the ques- * 
tion as to the jurisdiction of this Court, as well as that with regard 
to the application of the Act of Grace to the situation of tiie suspend*^ 
er, are fully before us, we are of opini<m, — 

1st, That as the suspender in this case was incarcerated under re- 
gular £xchequer process for non-payment of a duty or tax due to 
the Cro\i'n, the Court of Session possesses no jurisdiction in regard 
to any question touching eitiier the justice or amount of such duty 
or tax, the right of the party incarcerated to aliment during his cob* 
finement, or the mode that may be competent to him for effecting 
his liberation* This point was deliberately considered and deter* 
mined, on the 17 February 1824, in the case of Roy v. Young 
'and Wilson, which was identical with the present, and where the 
decision of the Magbtrates of Irvine, refusing to award an aliment, 
or to liberate under the Act of Grace, had been regularly brought 



Uo. 33. COURT OF SESSION/ 127 

under review by a bill of advocation, and we have seen no reason 17 Dec. 1831/ 
to doubt of that decision. Vi^i^y^ 

2dly, Although the suspender Pool may be said to have been in- ^^^| J „ J^^ n." 
carcerated for a civil cause or debt^ in contradistinction to a crimi- nan and Coi. 
nal one, it has not been made out, to our satis&cdon, that the Act Se ctor of r axc«' 
of Grace is applicable to persons incarcerated for duties or debts due Opinions of 
to the Crown, and we have seen no case in which its enactments ^'^"^^ 
have been found to attach to theniL The process for attaching the 
property as well as the persons of Crown debtors issues either di-» 
rectly from the Court of Exchequer, or is provided by special sti^ 
fates, and is altogether distinct from ordinary civil process, or cap- 
tions issued for proper civil debts due to individuals. We are not 
satisfied, therefore, that Crown debtors can be held as comprehend- 
ed under the terms of the Act of Grace, which contain no words 
whatever that include the interests, either of the Crown or the offi- 
cers of its revenue ; and we cannot but think, that if-Ae provisions 
of that Act had ever been understood to apply to Crown debtors, 
diey must have been resorted to long before the recent attempt in 
the case of Roy. The late statute providing aliment for persons 
imprisoned for debts due under the law* of the customs or exdse^ 
though unfortunately omitting other descriptions of debtors of the 
Crown, appears to aJSbrd, as was noticed by Lord Pitmilly in the 
case of Roy, a strong corroboration of the view of the Act of Grace 
which we have now taken. We must, however, add, that as we 
conceive that the Court of Session has no jurisdiction whatever in 
regard to the suspender's application for liberation from his confine- 
ment, under the process of the Court of Exchequer, we are of opi- 
nion, that his bill 6f suspension ought to be refused upon that 
ground alone, it being always open to him to apply to the Court of 
Exchequer for every redress that the law can affonl. 

Lords Meadowbank and Corehouse. — We concur in the 
above opinion, that the Court of Session has no jurisdiction in this 
question, and therefore consider it unnecessary to g^ve an opinion on 
the merits. 

Lord Moncreiff. — I understand, that the opinions of the Judges 
are required on the law of this case, on the supposition^ that the com* 
plainer, Pool, had presented a petition to the Magistrates of Annan, 
according to the established form, founding on the statute 1696, 
c. 82, and demanding an <vder on Mr Irving, as the incarcerating 
creditor, to lodge aliment, and fisdling his doing so within ten days, 
demanding his liberation ; and that, on the prayer of his petition 
being refused, or on liberation being, after due notice to the credi-* 
tor, refused by the Magistrates, he had applied to this Court by 
bill of advocation, or by bill of suspension and liberation. 



128 DECISIONS OF THE No. 38. 

17 Dec lasi. The question, in the terms in which it is stated, seems to relate 

^^y^^^ simply to the competency of an application by the prisoner, to the 

s^x^or An ' Magistrates of Antian, for aliment under the Act of Grace, and the 

nan and Col. effect of the refusal of the Collector of taxes to give the aliment, to 

ect orof ax es. j.g,jj^, j^ imperative on the Magistrates to liberate the prisoner. 

Opinions of Tiie law is clear, that, in any other case of civil debt, die prison- 

Jiid^s/ ^^' ^^ making such an af^ication, and taking the oath required* 

would, if no opposition were made on relevant grounds, have been 

entitled to the usual order, and, on the fiulure of the creditor to 

lodge aliment in due time, must have been liberated. 

The peculiarity here is, that the debt, for which the complainer 
stands imprisoned, is a debt to the Crown, for taxes payable to the 
Collector, and the diligence may be considered as substantially a 
process issuing from Exchequer. It is not strictly so ; but I think 
that it may be so taken. This state of the case appears to raise 
two questions. 1st, Whether this Court has jurisdiction to deter«* 
mine the question, whether^ in the circumstances assumed, the Mar 
gistrates were bound to grant the liberation or not ? and, Sd* Whe- 
ther, if the Court has jurisdiction, a prisoner incarcerated for such 
a debt is entitled to the benefit of tha Act of Grace ? 

It appears to me, that these two questions are inseparably in* 
volved in one another. I think, that, if the Act of Grace applies 
to the case at all« it must follow, that it can only be enforced by an 
amplication to the MegiBtrates of Annan in the first instance, and 
that this Court, and no other, has power to review the proceedings 
of the Magistrates in regard to it. I am aware, that an idea has 
been entertained, that the Act of Grace may be held to apply to 
the case, and even that the appliqation to the Magistrates might be 
competent, and yet that the power of review must belong to the 
Court of Exchequer. Or, perhaps, it should rather be stated thus : 
that, in considering the question, whether this Court has jurisdic- 
tion <M* not, the question, whether the Act of Grace applies or not, 
and bow it is to be extricated if it does i^ply^ should be entirely 
waived. I shall state the reasons why I am unable to concur in 
this view of the subject, as they appear to me to be fundamental in 
the question at issue. 

Wherever a question arises, whether jurisdiction in a particular 
matter belongs to one Su{Hreme Court, or exclusively to another, 
that question of juffisdidion must be decided by the Court who are 
called upon to judge of the matter in controversy ; and it appears 
to me to be no argument against this to say, that if the same ques- 
tion were presented to the other Court, it is possible that they might 
pronounce an opposite judgment. The plain necessity of the case 
requires, thai the Court shall say, whether, in their opinion, they 



No. 38. COURT OF SESSION. Kp 

have jiiriadietion or not; and the preaumption is, that all Courts 17 Dec. 1631. 
will have the same qunion. But, before any Court can judge of ^y^"^, 
a question of jurisdiction in a special case» they must take some gtretetofAl^ 
view of what the wecial case is» and of the grounds on which it nan ^od Col- 
Stands under the laws and statutes of the realm* They may see .... 
very denrly, that, under a particular statute, another Court has an opiniont of 
excluaive jurisdictiQa in a certain general class of matters apd causes. j^Tes. 
Qttt the qu^stioiii whethm: the special matt^ in oootroversy is with- 
in that exclusive class, must depend on a <we&l c<msidemtion «f 
the nature of it ; and if the demand made rests upon another star 
tiite of more general operation, and in full force, and t|ie Court see 
clearly that their jurisdiction (undoubted in all other case^ relating 
to 1^) ean only be excluded by holding that^tatute to be totally in- 
operative in the particular case, it must be their dujty .to inquiry, 
according to their own lights, whether it is so ineffectual, either 
f nder general rules of law, or by the force of the atatate on which 
the jurisdiction is founded. To assume, therefore, in the present 
ease^ that it beUmgs only to the Court of Exchequer to determine 
whether the Act of Grace applies to the Crown debt or not, ap- 
pears to me, with all deference, to be an assumption of the point of 
jurisdiction ilael^ without extricating the legal grounds on which it 
must depend. 

At the same time, it must be observed, that any questi(>n as to 
the effect of tike Act 1696, which is a general statute, and was in 
fidi force before the act for establishing the Court of Exchequer, 
must be a quesdon much more peculiarly fitted for the determinar 
tion of the Court of Session, than for that of a new and peculiar 
Cobrt^ whose decbions are not guided by the rules of the mnnici- 
pal law of Scotland. 

It th^efore appears to me, that, in order to come to a sound and 
safe conclusion on the question of jurisdiction, it is necessary to be- 
gin with taking a correct view of the effect of the act 1696, inde- 
pendently of the act of the 64h Anne ; and then to inquire, how £ur 
it has been impaired or limited in its operation by that statute. 
And if it shall be held to be still in full force, and to reach the case 
of Crown debtors, the question of jurisdiction will then be resolved 
by considering, 1st, Whether the application to the Magistrates of 
the bmgh is competent and necessary ? and, 2d, Whether, if it is, 
the power of review belongs to the Court of Session, or to the Court 
of Exchequer ? 

My opinion on the whole case rests on the following proposi- 
tions: 

1. That the act 1696 did, previous to the Union, apply equally 
to the debtors of the Crown as to other debtors. The tenns of the 

VOL. vii. I 



13a DECISIONS OF THE No. 83. 

17 Dec. 1831. act are quite general, applying to * any person/ who is a prisoner 
^■^y^^^ for * any civil debt or cause.' It contains no exception. And it 

straterorAn- *PP®^"^ *^ ™^> ^^^^ ^^^ terms of the preamble, hx from proving 
nan and Col. that, previous to the act, the burden of maintaining poor prisoners 
lect or of Tax e». £^^ ^^y^^ legally attached to the burgh, do rather imply the reverse ; 
Opinions of though it secuis natural to presume, that, from motives of huma- 
^dmT ^^^^ ^^ administrators of the burgh would give some aliment, ra- 
ther than allow a prisoner to starve. But, at any rate, I see no 
ground for supposing, that after the act was passed, the Crown 
debtors stood in any different situation from other debtors ; and no 
authority, to shew that they had not the benefit of the act, has been 
produced. 

2. That the statute, 6 Anne, c. 26, does, neither by express 
enactment, nor by the necessary import and effect of any of its pro- 
visions, repeal the act 1696 in its application to Crown debtors, or 
make any change on the legal operation of it in this respect. I 
cannot see any ground in law, on which it can be maintained, that 
that statute produced the effect of withdrawing the Crown debtors 
from the operation of the act 1696. It did, no doubt, in very 
anxious and ample terms, vest in the new Court of Exchequer an 
exclusive jurisdiction < for deciding questions concerning the re«- 
* venue of customs and excise' in Scotland, in conformity to4;he 
19th article of the Treaty of Union ; and it gave a similar jurisdic- 
tion with regard to all debts, duties, and profits of every kind due 
to the Crown. But, whatever may be the effect of these provisions 
of the statute in regard to the question of jurisdiction, it seenos to 
me impossible to maintain, that, if the act 1696 did previously ap- 
ply to the Crown debtors, the force of it was in any respect im- 
paired in this respect by the establishment of the Court of Exche- 
quer. Unless it could be shewn, that that act 1696 was inconsis^ 
tent with the Treaty of Union, and so fell under the provision of 
the 25th article, (which is impossible,) it clearly subsisted in all its 
strength as a part of the established law of Scotland. 

d« That, if the act 1696 continued, after the Act of Union and 
the act of 6 Anne, to be legally applicable to the Crown debtors, it 
can only receive effect, in the first instance, by a complaint or pe- 
tition presented to the Magistrates of the burgh, in the jail of which 
tiie debtor is imprisoned. This seems to me to follow necessarily 
from the nature and terms of the act 1696. The Magistrates of 
tiie burgh are the proprietors and custodiers of the public jail. 
The object was, in the case of poor prisoners who had no means of 
subsistence, to throw on the creditors incarcerators the burden of 
Maintaining them. And the provision is, that < it shall be leisome 
^ to the Magistrates of the burgh where the prison is,' upon a com- 



No. 88. COURT OF SESSION. 131 

plaint by the prisoner, < and his making ftdth in their presence/ to 17 Dec 1831. 
intimate the petition to the creditor ; and on the creditor failing to ^tf*\^^^ 
provide aliment within the ten days limited, or to consent to the li- ^^^ ^' ^^' 
beration, * it shall be leisome to the said Magistrates to set the said nan and Coi. 
* poor indigent prisoner at liberty.' These provisions are so pecu- Sect or of Ta iet. 
Uar, and so specifically applied to the Magistrates, as the custodiers opinions of 
of the burgh jail, that I can see no possibility of carrying the act consulted 
into effect in any other way, than by a petition to the Magistrates* 
I cannot imagine, how a complaint under this statute could be pre*! 
sented to the Court of Exchequer, or what form it could assume to 
have even the appearance of competency. It would be impossible 
to express that prayer which is essential to the object ; viz. that, if 
security for aliment be not found within ten days, the Court ap- 
plied to, (which should be, expressly, the Magistrates, as custodiers 
of the jaO,) should set the prisoner at liberty. Neither could the 
prisoner pray, that the Magistrates should set him at liberty, when 
the application uras not made to them. Further, it would be im- 
possible to take the necessary oath ; for the oath must be taken in. 
presence of the Magistrates ; and there is no warrant for any other 
authority to administer it And, finally, the Court of Exchequer 
have no power to order the Magistrates to set the prisoner at liber- 
ty. They have no general jurisdiction over jails in Scotland, or 
over the Magistrates of burghs, as the holders thereof. Neither 
the one statute nor the other gives them such a power ; and, in a 
question as to the execution of a special statute of the Scotch Par* 
liament, which applies indiscriminately to all cases of debtors, I can- 
not think that it could be executed at all, otherwise than according 
to the precise remedy which it has itself provided. I am therefore 
humbly of opinion, that, if the act applies, it was the prisoner's 
right to apply to the Magistrates of Annan, and that he could not 
competently follow any other course. 

4. That, if the application to the Magistrates of Annan was a 
competent application under the Act of Grace, the Court of Ses- 
sion, and the Court of Session alone, must have jurisdiction to re- 
^ew any judgment or proceeding adopted by the Magistrates under 
that application. 

The proposition which raises the difficulty in this point is, that 
the debt was a debt due to the Crown, and that the Court of Ex- 
chequer has an exclusive jurisdiction with regard to all questions 
relative to Crown debts, and also with regard to all claims made 
against the Crown. I entertain doubt, whether the terms of die 
act are such as to reach all claims of every sort which may be made 
against the Crown, or, more particularly, against the subordinate 
officers of the Crown. And I believe that many examples of the 

1 2 



183 DECISIONS OF THE No. 3S. 

17 Dec. 1831. contrary erist. But waiving this doubt, I am very humbly of opi- 
nion, that none of the provisions of the statute are such as to com- 

stimteT'oriur prehend this peculiar case. 

nan and Col- If it be once settled^ that the act 1696 reaches the case, and that 
^ ^ the application may or must be made to the Magistrates of tho 

OpinioDi of burgh, I think it inevitably follows, that the Court of Exchequer 

JudgM. <^&Q ^ve no exclusive jurisdiction in this matter ; for, if they hadt 

it must exclude the Magistrates from entertaining such a petition^ 
and render any judgment pronounced by them upon it incompe* 
tent This would contradict the previous positions. But I cannot 
see, how the admission of a jurisdiction in the Magistrates, in re- 
spect of the special terms of the statute, can be reconciled with the 
plea, that, in consequence of the act 6 Anne, no Court in the 
kingdom can take cognisance of any question relative to the debts 
or revenues of the Crown, or specially of this question upon the 
act 1696, as being of that description. The plea founded on the 
6 Anne must be good, to the full extent of excluding all interfe* 
rence by any Court ; or otherwise it must be admitted, that there 
is a specialty in the act 1696, which takes it out of the operation 
of that statute. And it humbly appears to me, that there is this 
very great specialty, (if it may be so called,) that the applicatkm 
' made imder the act 1696 has no reference to the nature or consti- 
tution of the debt, or to the validity of the process by which it is ta 
be enforced, but arises out of a qiiality attached by the statutory 
law of the land to diligence upon every debt, whatever may be ita 
nature, and whoever may be the creditor, from which the Crown 
has no exemption. I do not think, therefore, that it can be cor- 
rectly stated, that this question has any relation to matters of re-^ 
venue, or is one of the things committed to the Court of Exche- 
quer. And if it were so, I should think the consequence inevita- 
ble, that the jurisdiction of the Magistrates of the burgh must be 
excluded, which, in my opinion, would render the act inoperative 
in a case to which, by its terms, it does i^PP^y) ^^^ ^ to which it 
has never been repealed. 

But I have fartiier to observe, that, if the Court once make up 
their minds to the point, that an application to the Magistrates of 
the bui^h is competent, there can be no review, as far as I can see, 
of tiieir judgment, except by the Court of Session. I suppose it 
to admit of no doubt, that, in general, this Court has power to re- 
view the proceedings of Magistrates of burghs in applications on 
the Act of Grace. The review, therefore, must be competent in 
this case, unless it is excluded by the Court of Exchequer. But 
there is no form of process that I am acquainted with, by which the.. 
Court of Exchequer could review such proceedings. Neither ad- 



No. 33, COURT OF SESSION. 133 

Toeadon) nor suspension, nor reduction^ nor appeal^ is provided by 17 Dec. Id3k 
any statute ; and I am not aware, that the common law powers of ^"^v^*^ 
the Court of Exchequer afford any process which could be effectual g^l^'J^^^ 
to the purpose. They have, indeed, abundance of jurisdiction to nan and Coi- 
review the proceedings of justices of the peace, and other inferior *< ^'^Q^T ax<a. 
judges, in cases where special powers are committed to sueb Ma- OpEnionsof 
gistrates by the revenue statutes. But, as a Scotch lawyer, I can ?*^***^ 
discover nothing in the act of 6 Anne, and nothing in the nature 
of the jurisdiction thereby established, which confers a power of 
reviewing a sentence of the Magistrates of a burgh, pronounced in 
the exercise of their ordinary powers as Magistrates, and under the 
express provisions of a general Scottish statute. And, unless there 
be such a mode of proceeding laid down, either generally or parti-' 
cularly, in some statute, I am under the necessity of thinking, that 
there is no form of process by which such a review could b^ carried 
into effect. It will be observed, that it would be to take an appeal 
from a court which is not a court of revenue, and not acting as a 
court of revenue, to a court which is solely and exclusively a 
court of revenue. It would be to make the Cou^ of Exchequer 
review the act of the Magistrates, in ordering their jailor to libe- 
rate a prisoner, or their sentence refusing to make that order when 
they ought to do it. And, supposing that such a case were in any 
form brought into Exchequer, I do not see how it could be effec* 
tnaUy extricated there. If the Magistrates had refused to liberate, 
and the Court thought that they ought to have done so, I have 
doubt as to the power of that Court to order the liberation. They 
could, indeed, order the officers of the Crown to consent to the pri* 
sonei^s liberation. But the question is, whether they could make 
a legal order of liberation upon the Magistrates df a burgh. Again, 
if the Magistrates had liberated the prisoner, or made an order to 
that effect, in consequence of the Collector having chosen to disre- 
gard the intimation, would the Court of Exchequer have power to 
compel them to receive the prisoner again into the jail ? Possibly, 
ways might be found of extricating these last difficulties. But 
the main difficulty would remain, that there is no statute, and 
no law yet pointed out, which provides a mode of review in such a 
case. 

As I am sensible that this opinion differs from the view taken 
of this question by the Second Division of the Court, in the case 
of Roy 9. Young and Wilson, February 17. 1824 ; and that it is 
also different from the opinion still entertained by many or most of 
the consulted Judges ; I have thought it necessary to state fully 
die grounds on which I am compelled to hesitate in Concurring witJi 
them ; and I mean to express those doubts with all possible respect 
and deference. 



134 DECISIONS OF THE No. 83- 

J7 Dec 1831. In answer to the question as stated, I am of opinion, that, in 
consequence of the refusal of the Collector, on the part of the Crown, 
strates of An-' ^ aliment the prisoner Pool, the Magistrates of Annan are bound, 
nan and Col- under the act 1696, to liberate him from jail. 

lector of Taxes. ^-^ j • • ^i i . . 

_^^ On advismg these cases and opinions — 

Opinions of Loni Gillies observed — That the case came before the Court. 

Judges. rather awkwardly. The opinion of the consulted Judges proceed 

upon the hypothesis, that a regular application had been made under 
the Act of Grace, which was not the case ; and, indeed, the Magis- 
trates plead, that if such an application had been made, they would 
have sustained it, and liberated the prisoner, as the burgh was not 
bound to aliment him. But, upon the footing on which the opi- 
nions of the consulted Judges proceed, that we are to consider this 
a case under the Act of Grace, I concur entirely in the opinion so 
fully and ably given by Lord MoncreifF. The words of the Act of 
Grace are exceedingly distinct and plain. (His Lordship here read 
them.) Under these words, none but Magistrates have the juris- 
diction of receiving an application under the Act of Grace. They 
may grant or refuse it, they may do right or wrong in the one or 
the other, but they alone can judge of the matter in the first in- 
stance. Lord Moncreiff's argument on this point is conclusive ; 
but after the Magistrates have disposed of the application, what 
Court is competent to review their judgment ? Surely it is not the 
Court of Exchequer. If the Magistrates liberate the debtor, could 
the Exchequer issue their warrant for his re-incarceration ? I should 
doubt this extremely. I consider the jurisdiction in claims of ali- 
ment under the Act of Grace is necessarily and exclusively with 
the Magistrates in the first instance. If they go wrong, their pro- 
ceedings can only be reviewed by the Court of Session. 

I have not been able, after a most careful consideration of the 
act of Queen Anne establishing the Exchequer and the subsequent 
statute, to discover any good ground for the opinion, that the Act 
of Grace does not apply to Crown debtors. The words of the sta- 
tute apply generally to any prisoner ' for a civil debt or cause.' 
The Act of Grace was prior to the act of Queen Anne. It conferred 
an important boon on the burghs of Scotland, which cannot be 
taken from them by implication ; and I have not been able to dis- 
cover any statute, or clause in a statute, which excepts from the 
Act of Grace revenue debtors. It is no answer to say, that this 
would be interfering with the rights of the Crown as creditor. The 
debt remains as entire after the prisoner's liberation as before. The 
Magistrates, in applying the Act of Grace, do not touch the debt, 
or give any opinion as to its legality. The diligence of the Crown 
has many privileges over the property of its debtor, but I am not 



No. 83, tJOURT OF SESSION. 135 

aware of its having any superior privilege over the debtor's person ; 17 Dec 1831; 
and if this had been a regular application under the Act of Grace, p^^^CT"^. 
I think the Magistrates would Iwve been entitled to have applied gtratesof An- 
that act to the suspender's case. I concur in every part of the opi- «■» ■'*4^^" 
nion of Lord Moncreiff. ..... 

Lord Boigray expressed himself to be of the same opinion. OpinioM of 

L^rd Craiffie. — I concurred in the decision of the Second Divi- judg«, 
sion in the case of Roy, and I still remain of the same opinion. 
Although the Solicitor-General has, with great propriety, waived all 
objection in point of form to the proceedings in this case, I rather 
think it would have been better, if he had taken such steps in Ex- 
chequer as would have been foUowed out, if the Magistrates of An- 
nan had signified their purpose to release the prisoner, either upon 
the Act of Grace, or upon any other ground of law. In that way 
only coidd the authority of the Court of Exchequer, and the effect 
of execution upon their decrees, upon debts due to the Crown jure 
coronas, have been directly and properly tried. The Act of Grrace 
1696 was a deviation from the common law; and it is therefore]^in- 
cumbent on the party cUdming the benefit of it to shew that his case 
is within the act 

The Court of Exchequer in Scotland was established after the 
date of the Act of Grace ; and from the terms of the statutes, the 
form of proceedings known in the English Courts, both as to real 
and personal estates, and execution against the person of the debtor, 
is altogether diffierent from what is known in Scots law. 

The benefit of the cessio bonorum is of much more ancient date 
than the Act of Grace, being part of our common law ; but no at- 
tempt, so frur as I know, has been made to seek the benefit of it, by 
a person imprisoned for a debt due to the Crown qua such ; and 
upon a late occasion an objection being made, that the Officers of 
State had not been called, on account of a Crown debt due by a 
bankrupt, it was disregarded in this Division of the Court, on the 
ground that the Crown was not affiected by a decree of cessio. 

Lately an act was passed, by which debtors to the Crown on ac- 
count of the excise or customs might have an allowance of 4|d. per 
day, but, by some oversight, the case of taxes under the game laws 
was omitted. It would be strange, however, that in this way a 
debtor of this description should be benefited under the Act of 
Grace. Indeed, the regulation would have been altogether unne- 
cessary and absurd, if under the prior law a greater allowance could 
be obtained ; and still more so if, in virtue of the act 1696, the party 
might in all cases obtain an immediate release, if aliment was not 
paid. 

I do not see how any question of jurisdiction properly arises here. 



130 



DECISIONS OF THE 



N0.8& 



17 Dec. 1831. The proceedings are not of a jacii<aal, but of an official natoi^. 
^^^V^ There is no judgment pronounced on the debt, but a warrant of li« 
M of AnI heration, if the application is within the statute; and immediately on 



fltntes 



nan and Col- the Same debt, the debtor maybe again imprisoned in the same place, 
lect or of Tto e^^^^j ^ ^^^ warrant must be obtained by the debtor on intimation 



OptniooB of 

consulted 

Judges. 



made to the creditor. No example has been shewn, where legal 
execution issued against the person or estate of Crown debtors can 
be tried in any other Court but the Court of Exchequer, unless 
where it can be shewn that there has been an excess in the execu- 
tion, and where the jurisdiction of the Court of Ebtchequer does 
not extend, but no such plea has been or can be used in this ease. 

The Lard Pretident concurred in the opinion expressed by Lord 
Moncreiff and Lord CKUies. 

But it having been stated from the bar, that Pool was not now in 
prison, having been liberated of consent of the Crown, the Court, 
in respect the suspender was not now in prison, found that it was 
unnecessary to pronounce any judgment in this case. 

Lord Mcmeniff, Ordinary. For Pool, Graham BetL ThomoM Johmitm^ Agent* 
For Magistrates of Annan, John A, Mwrray, Wm. Martin^ Agent. For 
Collector of Taxes, SoL'Gtn, (CoMum^) G, Napitr. Wm, Frascr junior, 

W. S. Agent* D, Clerk. 

T. 



SECOND DIVISION. 



No. XXXIV. 



20 December 1831. 



MACLAREN 

offainst 

The marquis op BREADALBANE. 

Removing. — Writ (requiring Stamp.) — It is not necessary far 
a landlord to give warning^ when a tenant has granied an engagement 
to dispense with it during the currency of the last year of his tack, 
and at a time when the landlord might otherwise have given regular 
warning ; and an engagement to this effsct held binding^ aUJwugh 
it was not written on a stamp. 

Maclaren was tenant of a farm on th^ Breadalbane estate, upon 
a lease which expired at Whitsunday 1831 as to the houses and 
grass, and at the separation of the crop of that year as to the arable 
land. On the 15th of March 1881, he granted a missive to his 



No. 8i. COURT OF SESSIO!*. \Sl 

kadicdl, by which he bound himself < to remove from his present 20 Dec. ]83i. 

* ponenion at Whitsunday first as to the houses, yards and pas- ^^•V^^ 

< tare, and from the arable land at the separation of the crop from ^^'j{^" „j, 

< die ground, and that without any warning or process of removing of Breadal- 
( used against me/ This missive was regularly executed, but not ^°®* 
upon stamped paper* 

The landlord, relying upon this agreement, did not think it ne-* 
eessary to give any regular warning, but upon the 27th of May 
presented a petition to the Sheriff for summary removing against 
his tenant. Msudaren resisted the application, upon the ground, 
1st, That the obligation not being stamped was improbative ; 2di 
That, at any rate, it did not supersede the necessity of giving no* 
tice to remove previous to the term of Whitsunday ; and, finally, 
That It could not be the foundation of a summary process. The 
landlOTd answered, 1st, That the obligation being ad factum prse- 
standmn, and merely expletive of the terms of the original lease, 
which was regularly executed, did not require a stamp ; and, 2d, 
That such an obligation, granted by a tenant in the last year of his 
lease, and for the express purpose of superseding any warning or 
process of removing, was effectual, and might be enforced by a 
summary application ; Brown v. Peacock, 27 Feb. 1822. 

The Sheriff decerned in the removing. Maclaren presented a 
bill of suspension, which the Lord Ordinary refused, without an an- 
swer, and added to his judgment the following note : < The Lord 

< Ordinary would have taken an answer if he had entertained any 

* doubt. But in a case of removing, where the landlord may be in- 

* volved in inextricable difficulties by delay, he has thought it his 

* duty, after considering the inferior court record, and being clear 
' in his opinion, to decide on the complainer's own representation of 

< his case. According to that statement, the complainer is attempt- 

< ing to carry through a most flagrant breach of good £Edth, for 

< which not even a pretence of apolc^ is offered. And as to the 

* points of law pleaded, the Lord Ordinary is of opinion, 1st, That 
( as it is not denied on the record that the complainer did delibe- 

* rately, on 15 March 18S1, engage to remove without warning, at 

* Whitsunday and Martinmas 1831, these being the admitted terms 

< of removal by the deed of lease, it is not necessary to consider 

< whether the writing to that effect strictly required a stamp or not 

* But separately, the Lord Ordinary is inclined to think, that the 

< writing, being merely intended to carry into effect the agreement 

* under the lease, without the necessity of action or warning, must 
' be taken as part of it, or as explanatory of the engagement under 

< it, and, therefore, being otherwise probative, may be looked at^ 

< though bearing no stamp. 2d, He is clearly of opinion, that the 



138 



DECISIONS OF THE 



No. S4, 



so Dec. 1831 . < plea JEbS to the necessity of warning, even after an engagement on 

^^y^^, * the 16th of March to dispense with it, is untenable ;. and he thinks 

l>» Maquis of * *^® <*»® ^f Brown ». Peacock, 27 Feb. 1822, applicable a for- 

BreadaltMuie. < tiori.' 



Judgment. 



Opinion of 
Court. 



The complainer reclaimed^ but the Court unanimously refused his 
note. 

The Lard JusHce^ClerL — There is no difficulty whatever in this 
case. The interlocutor is clearly right 

Lord Cringletie. — It is right in every point of view. Suppose we 
take the writing merely as a declaration, on the part of the tenant^ 
of his intention to quit his fiurm at the ensuing term after its date, 
the landlord was entitled, nay, bound, to rely upon it as such, and 
to act accordingly ; for it is not necessary for a tenant to give any 
more formal warning of his intention to remover The provisions 
of the statute 1555, and Act of Sederunt 1756, apply only to warn-» 
ings given by a landlord* 

Lord Ordinary, Moncaniff^ Act. Jamuon and A, Wood, AXu Skene and Outram, 
And^* CUuon and H, Davidson, W. S. Agents. R, Clerk. 

u. 



SECOND DIVISION. 



No. XXXV. 



20 December 1831. 



KIRKLAND and Others 
JOHN SLATER. 



Proof. — Jury Trial. — With a view to a jury trial in an action 
brought by certain claimants on a sequestrated estate against the trus-- 
tee^ a commission to examine the bankrupt^ who liad absconded^ ha^- 
ving been obtained by the pursuers^ on titeir agenfs affidavit^ that he 

. had received accurate information of the bankrupfs place of residence 
abroadf but the intention to execute this commission having been cf" 
terwards abandoned^ without producing any explanatory affidavit^—^ 
found incompetent to receive as evidence the bankrupts judicial exa- 
minations in the sequestration^ 

JosiAH Rowley stopped payment in 1818, and apparently settled 
with all his creditors by an extrajudicial composition of 1 Is. per 



No. 35. COURT OF SESSION. JSIT 

pound. In 1822, he declared himself again insolvent, and his es- SO Dec^Wl< 
tate was sequestrated. In the statutory examinations of the bank- ^r^x^ 
nipt on oath, he admitted the concealment of funds under his former q^i,^^ ^^ 
bankruptcy, the payment of some of his creditors in full, and that he Slater, 
purchased the apparent acces»on of others to the composition-con- 
tract by sums over and above the stipulated composition. Kirk- 
land and others, who were creditors of Rowley under his first bank- 
ruptcy, and received the composition and signed his discharge, ha-, 
ving (as they alleged) afterwards discovered the bankrupt's frau- 
dulent conduct, lodged claims in the sequestration for payment of 
the balances due to them on their original debts. This having 
been objected to by the trustee, the .claimants presented a petition 
to the Court, complaining of his decision, and at the same time in- 
stituted this reduction for setting aside the bankrupt's discharge, on 
the ground that the pursuers were fraudulently induced to accept 
the compensation and subscribe the discharge. 

In the meanwhile, the trustee having discovered that the bank- 
rupt had been concealing and disposing of his effects, had him ap- 
prehended under a warrant from the Sheriff; but he escaped from 
the officers of justice ; and though a considerable reward was offered 
for his apprehension, he got out of the country, and sailed, as was 
supposed, for America. 

A record was made up in the reduction, in which the judicial 
examinations and depositions of the bankrupt were specially found- 
ed on by the pursuers, and the issue adjusted for trial was, whether 
the discharge in question was not the deed of the pursuers ? 

At the trial, the pursuers proposed to read the bankrupt's decla- 
rations as evidence. This was objected to by the defender ; but 
allowed by the Court on the following grounds, as set forth in the 
notes of the presiding Judge, (the Lord Justice-Clerk), < That the 
pursuers had claimed in the sequestration, and attended the meet- 
ings of creditors both before and after the examinations : That 
the claims had been rejected in respect of the unreduced discharge 
granted by the pursuers : That, although the present proceeding 
was in form a reduction, it was substantially one arising out of 
the sequestration, and the statute gave to all claiming to be 
creditors a right to found on the bankrupt's declaration : That 
although the cross-examination of the bankrupt cannot be here 
obtained, the trustee was bound to have expiscated the matter by 
all competent questions ; and the petition to the Sheriff, and war- 
rant following on it, with the trustee's own advertisement, had 
been put in, or was held as put in, to account for the bankrupt's 
not being produced as a witness ; and, finally, that the declarations 
in question, if what they are supposed to contain be true, have a 



140 DECISIONS OF THE No. 35. 

so See. ISai. ( tcmdency to diminish, «nd not to increase, the divisible fund, which 
^"^V^^ ^ removes any objection to their being read on the score of the 
ShtlT^ &t ' bankrupt's interest- The effect due to the declarations will be 
ter. < quite open/ 

In consequence of the admission of the declarations, the case was 
given up, and a verdict returned for the pursuer. A new trial be- 
ing moved for, in respect of that admission, cases were ordered ; and 
afterwards the opinion of the other Judges was required, < on the 

* question therein discussed, whether the examinations of the bank- 
' nipt were legally admitted as evidence on the trial.' Their Lord- 
ships accordingly gave the following unanimous opinion, in conse- 
quence of which it becomes unnecessary to report the argument 
in the pleadings on the more general view of the question. 

OpinioD of I" ^® particular circumstances of this case, as set forth in the 

coDflultfid revised case for Slater, and not in any shape contradicted in that for 
" ^^ Kirkland, &c., we are of opinion that the declarations of the bank- 

rupt Rowley, taken in the sequestration, ought not to have been 
admitted as evidence on the trial. 

It appears from the statement above referred to, that on 1 June 
1830, an affidavit was emitted by the pursuers' agent, * That on 

< the 16th of May preceding, he was informed, and verily believes, 

< that the said Josiah Rowley resides in the neighbourhood of Ha- 

< boken Ferry aforesaid,' i. e. on the Jersey side, New York. 

On producing this affidavit, the pursuers obtained from the Jury 
Court a conunission to examine Rowley, and one Neilson, also sworn 
to be residing at the same place, and for that purpose were ordered 
to prepare interrogatories. 

Not havifig done so, on 28 June 1830, die defender gave notice 
of a motion for the recall of the said commission, in respect of the 
failure to give in the interrogatories. 

On 1 July the Court ordered, ^ that the interrogatories for the 
^ examination of witnesses abroad be finally settled on or before the 

* 30th current, and that the commission be reported by the 80 No- 

* vember next' 

But on 29 July, the pursuers' agents wrote to the defender's 
agent, that ^ after having prepared our interrc^tories for Rowley 

< and Neilson, our counsel has, for reasons unnecessary to be ex- 

< plained, deemed it unnecessary to lodge them.' 

On this, the defender's agent inquired, < whether he mistook this 

* communication by inferring from it that the intention of examin- 

< ing Rowley and Neilson had been abandoned.' 

To this the pursuers' agents answered, ^ That our communica- 

< tion of the 29th ultimo, did not state that we did not mean to exa- 



Ne. 36. COURT OF SESSION. 141 

^ mine Rowley and Neilson, but merely that our counsel did not 20 Dec. I83K 
< deem it expedient to lodge the interrogatories allowed by the ^^^y^^ 
•Coort' ^^«* 

On the defender's agent applyii^ for an explanation of this, the Slater. 
porsners' agents answered, on 10 August, ^ That it is not our in- opinion of 
* tention to act under, the commission granted by the Court^ consulted 

Under these circumstances, the cause came on for trial on 17 ^^ 
January 1831, wlien the proceedings took place on which our opi- 
nion is asked. 

Now, as it is not stated that any new affidayit had been put in, 
either stating that Rowley was since dead, or even that the pur- 
suers had since learned that they were misinformed as to Rowley's 
place of residence, and did not know where to find kim so as to 
execute the commission, (though we doubt if this would have been 
sufficient reason to dispense with the examination of Rowley,) we 
are of opinion that it was not competent to receive as evidence any 
declaration or deposition of Rowley, whether taken in the seques- 
tration or in any other manner^ seeing that on the face of the pro- 
ceedings it appears to have been quite possible to have the deposi- 
tion of Rowley regularly taken by commission, on which occasipn 
kis very former deposition might have suggested to the defender a 
variety of matter <m which to cross-question him, and thereby ob- 
tain very material explanations, perhaps even contradictions, of what 
ke had formerly deponed. 

We hold it, tkerefore, to be unnecessary and premature to give 
any opinion as to the competency of admitting Rowley's former de- 
positions as evidence under a different situation of matters. 

In confmrmity with this opinion, the Court granted a new trials judgment. 
reserving the question of e^ipenses. 

For tbe Pumieny D^an qfFtK. fEcpt^J FmtyOi^ Shaw. Bowie jr Ctfmp&eS; W. & 
AgcotB. For tbe Defender, SoL-Cfen, (CockbwniJ Cwang/ume, TfiZnm. 

J. B. Brodw, W. & Agent. R. Clerk. 

s. 



142 DECISIONS OF THE No- 36. 



FIRST DIVISION. 

No. XXXVI. 22 December 1831. 

MISS F. GILLESPIE and Others 

against 
JAMES HOPE, W. S. and Others. 

Legacy. — Expenses. — A testator having^ by his trust^disposi"' 
turn and settlement^ appointed his general disponee to pay any fe- 
gacies which he might have by any writing under his handy < pro* 
* vided the same express my will and intention^ and are written^ 
' dated and signed by me ;' and having by a holograph codicil^ but 
not signed^ left certain legacies^ and by an after codicil on the back 
of the same paper^ holograph and signed^ repeated the same lega-- 
ciesy and by a later codicil^ also holograph but not signed^ but 
setting out with the name of the testator j again repeated the same 
legaciesy—foundy that separate legacies were due under each of the 
codicils; and that, in the circumstances of the casCy the expenses should 
be paid out of the trust-funds. 

The late James Donaldson of Broughton Hall, by trust-disposi- 
tion and settlement, left his whole property, heritable and moye- 
able, to Mr John Irvine, W. S., as his general disponee and exe- 
cutor, in trust, first, for the payment of all his just and lawful debts; 
secondly, ^ I do hereby direct my said trustee to pay all gifts, le- 
' gacies, annuities, or bequests, which I have already, by separate 

* writings under my hand, of various dates, made and granted in 
' favour of any person or persons whatsoever ; and also all the gifts, 

< annuities, legacies and bequests, which I may at any time here- 

* after make and grant by any separate deed of legacies or codicils, 

< or by any separate writings or memorandums, although the same 

< be not formally executed, provided the same express my will and 

* intention, and are written, dated and signed by me.' The deed 
in the last place directs the trustee, after paying ail the expenses 
of the trust, to pay over the free residue of the estate to ^ the re- 

< siduary legatee or legatees named, or to be named and appointed 

< by me, by any writing or writings under my hand at any time of 

< my life, or even subscribed by me on deathbed.' 

Mr Donaldson, by a separate deed, had appointed Mr Irvine, 
Mr Hope and others, residuary legatees, for the purpose of ap- 



No. 36. COURT OF SESSION. 143 

plying the whole free residue in building and maintaining m hos- 22 Dec 183L 
pital for boys and girls. His property amounted to upwards of ^ 
L. 200,000. , g«!^:.-^ 

After Mr Donaldson's death, the following codicils were found Hope »id 

1 • Othen. 

among his papers : 

« 85. Princ^fs Street, 16 April 1829. 
^ Additional Codicil, confirming to Hospital for Children for- 
merly left by Will. 

M.I leave to Margaret Fullerton Gillespie, Twenty pounds a- 
^ year additional 

* 2. To Jane Wood, Twenty pounds a-year addi- 

tional. 

< 8. To George Augustus Frederick Wood, Twenty 

* pounds a-year additional. I Children of 

* 4. Elizabeth Wood, Ten pounds a-year addi-V Mr wuuam 

tional ( ^"^ •"'«*^- 

' 5. Thomas Wood, Ten pounds a-year additional. 

< 6. William Wood, Ten pounds a-year additional. 

* 7. John Wood, Ten pounds do. do. 

* Edinburgh, 25 April 1829. — I repeat and leave to the seven 
' persons mentioned in the preceding page, exactly the same legacies 

< as is therein specified.' (Signed) < James Donaldson. Also ' 

< to James Donaldson Gillespie, Ten pounds a-year additional. 

* Signed before these witnesses, William Forrest, my clerk, and 

* John Fairley, my servant' (Signed) * William Forrest, witness. 

* John Fairley, witness^ And on the back of said paper, there is 
the following marking : < Additional Codicilj April 16. 1829. J. D.' - 

* Additional Codicil, 
« 85. Princess Street, May I. 1830. 
^ I James Donaldson of Broughton Hall leave the following ad- 

< ditional legacies to my former codicil : 

* I. Ten pounds a-year to Miss Margaret Fullerton Gillespie. 

* 2. Twenty pounds a-year to Miss Jane Wood. 

< 8. Twenty pounds a-year to George Frederick Augustus 

* Wood. 

< 4. Ten pounds a-year to James Donaldson Gillespie.' 
All these codicils were holograph of Mr Donaldson, and this last 

one was marked on the back, also holograph of Mr Donaldson^ 

< Additional Codicil, May 1. 1830.' 

A question having arisen whether, under these codicils, separate 



144 



DECISIONS OF THE 



No. 36. 



GiUcspio and 
Others v. 
Hop0 and 
Otben. 



S2 Dec. 1031. I^[ax:ie8 were left, <Mr only a repetition of the eame legncjr, or whe- 
ther the codicils were effectual, and in terois of the jMruicipal deed, 
a process of multiplepoinding was brought, in name of Mr InrinCa 
as general disponee and executori in whidi die special legatees, 
Miss Gillespie and others, daimed, 1st, Double the amount of lega- 
cies specified- in the codicil of 16 April 1829, in terms of the codicil 
of 25 April ; and 2dly, Thi6 legacies contained in the codicil of 1 May 
1830. On the .other hand, the trustees for the hospital, as resi* 
duary legatees, claimed to be preferred to the fund in medio, subject 
to the deduction of only one legacy to each of the seven persons, 
as speeified in the hologF^>h writing pf date 16 April 1889, coP"* 
firmed by the holograph writing of date 25 April 1829. 

In support of these respecttve daima, the following pleas in law 
were maintained : 



For the special legatees — 

1. The codicil of 25 April 1829, according to its plain and ob- 
vious meaning, was not a mere confirmation or ratification of the 
legacies bequeathed by the codicil of 16 April, but was truly in- 
tended to be, and must be construed, as a duplication of them. 

2. The codicil of 1 May 1830 not merely expresses a dear in- 
dication of the testator's wiU and intention, but is likewbe suffi- 
ciently authenticated as a testamentary document 

For the residuary legatees — 

L The codidl of date 16 April 1829 is of itself insu^dent to 
constitute any bequest, the same not being signed by the alleged 
grantor, nor in any way tested. 

2. That independent of this objection, which would be suffident 
in any case, the trostnlispesition and settlement by Mr Donaldson 
in favour of Mr Irving does specially direct his trustee to pay only 
such gifts, legacies, annuities and bequests, which the said James 
Donaldson might at any time thereafter make and grant in &vour 
of any person or persons, by any sepiurate deed of legades or codi- 
cils, or by any separate writing or memorandum^ < provided the 

* same express my will and intention, and are written, dated and 

* signed by me.' 

3. That the writing dated 25 April 1829 is merely a confirma- 
tion of the bequests stated in the preceding page, and which Mr 
Donaldson felt to be necessary to give effect to these bequests, from 
the first page not being signed by him, and there being no room 
either for his own signature or the signature of witnesses, whidi 
was his invariable method of executing writings of this kind. 

4. That the additional writing or alleged codicil, af date 1 May 



No. 36. COURT OF SESSION. 145 

1660» 18 niiU mod void, the same not being signed by Mr Donald- st Dm. issi. 
son, the allq^d gianter, nor in any way tested. ^^^^v^ 

Gillespie and 
Others v. 

The Lord Ordinary pronounced the following interlocutor : Hope and 

* The Lord Ordinary having heard counsel for the parties, re- ^^^^^ 
^ pels the claim of Miss Margaret Fnllerton Gillespie and others 
^ to the annuities disputed in the present process, and to that ex- 

* tent prefers the clakns of Mr Donaldson's trustees, and decerns in 
'•the preference in their &Tour and against the raiser of the mul- 

* tiplepoinding accordingly : But in respect of the circumstances of 
' tUs case, finds Miss Gillespie and others entitled to the expenses 
' incurred by them out of the trust-funds, and the raiser also en- 
<- titled to his expenses, as well as die said trustees, all out of said 
< funds.' 

The special legatees reclaimed against this interlocutor. 

Zjord Balgray. — I cannot concur in this interlocutor on principles Opinion of 
of law. The intention of the testator must be carried into effect, ^^"^* 
and I think his intention is quite clear. The testator says, that 
whatever legacies he may leave, by any separate writings, shall be 
paid, * provided the same express my will and intention.' Can any 
person doubt Mr Donaldson's intention in these codicils to repeat 
the previous legacies ? But it is objected that these codicils are not 
in the terms required by th^ principal deed. I cannot go into this. 
They are all written by Mr Donaldson himself, and are dated, and, 
according to my view, they are signed by him also ; for altliough 
the first page is not signed, the second is ; and it is clear by the 
law of Scotland, that the third page being signed is sufficient. 
This was decided in the case of Williamson, in 1742, reported by 
Lord Kilkerran, and also in the more recent case of Smith v. Bank 
of Scotland, 4 July 1816. I consider the approbation signed on 
the second page quite sufficient. It validates the writing on tiie 
first As to the codicil of 1 May, that is, I think, equally effectual. 
It expressly sets out, ' I James Donaklson,' &c. which I consider 
equal to its being signed, the writing being holog^raph. 

Lord GillieM, — I am of the same opinion. The whole depends on 
the meaning of the word < repeat' I think there is no doubt as to 
what was the testator's intention ; that it waa his intention, by re- 
peating these several legacies, just to leave ^ many additional le* 
gacies, and to that we are bound to give effect 

Lord Craigie. — The effect of holograph writings, bf^ing the 
superscription of the writer, but not subscribed by him {n the ordi« 
nary way, is not argued in the record, and the books of authority 
are almost silent on the subject There are several decLsioiis to be 

VOL. VII. K 



146 



DECISIONS OF THE 



Naae. 



Others p. 
Hope and 
Others. 



OpinioQ of 
Court* 



**v^' Jff/ ■ ^^"^ ^^ ^ ^^^^y P«"<xJ> and before the date of the act 1681. But 
GilleTiTand ^^^'^^^s'^ there 18 no special exception in the case of holograph 
writings, the regulation itself appears to be confined to writings 
that are not holograph ; and the chief object of the law seems to have 
been, to correct the laxity formerly known with regard to witnesses, 
who, although not subscribing, were probative witnesses, and of 
course might confirm the writing by their oath. The act requires 
the subscription of such witnesses, and that they should be design- 
ed in the body of the deed, and this seems to have been the lead- 
ing purpose of the enactment. 

In this case, - in regard to some of the legacies, besides the wri- 
tings being holograph and snpencribed, there are additional lega- 
des on the same sheet of paper, bearing the subscription of the 
party, and where the subscription may with propriety apply to the 
first legacies as well as the second. When the practice of the 
party is so clearly established, it does not appear that the objection 
should be listened to. 

Lord President concurred. 

The Court adhered in so fer as the interlocutor found that the 
expenses were to be paid out of the trust-funds, but altered quoad 
uUra. 



Judgment 



Lord Ckrdwum, Ordinary. 
Stewirt, W. S. Agent. 
Agent H, Clerk. 



Act. Dean of Fac. fJSopeJ, Man. Charka C 

Alt. Aeoy, Ad, Andenotu Waker Cook, W. S. 

T. 



SECOND DIVISION. 



No. XXXVII. 



22 December 1881. 



The BURNTISLAND WHALE-FISHING COMPANY 

against 

JOHN LEVEN, W. S. WILLIAM TROTTER and 

Others, and JOHN MORRISON, Assistant 

Clerk of Session. 

Process. — Act of Sederunt 11 July 1828. — Reasons of suspen- 
sion were found to be regularly lodged in terms of the 25th section 
of this acty being in the clerKs hands before the time for calling, al- 
though not annexed to the suspension at the time when it was lodged / 
arid a protestation for not calling was found to he properly served 



No. 37. COURT OF SESSION. 147 

t» terms of the QOth section^ by a certificate from the clerk that the 22 Dec. ISS'h 
m^feneion uxu lodged in his hands for the purpose of being calledj \^y^»^ 
although the letters ofsuupensian were not accompanied with the rea^^ ^\^^w 
sans at the time when they were so lodged* Company v. 



Trotter and others presented a bill of suspension and interdict 
against the Burntisland Whale- Fishing Company, which was pass- 
ed, and an interim interdict gpranted by the Court On 7 Decem- 
ber 1830, (see Fac. ColL of that date). The respondents appealed 
against this interlocutor, but, on the 1 October 1831, the appeal 
was dismissed, and the judgment affirmed, with L.200 costs* When 
the cause was thus finally decided in the Bill-Chamber, the respon- 
dents, on the 15 November 1831, put up protestation for not calling', 
enrolling and insisting. In order to meet this protestation, which 
might have been extracted on the 25 November, the suspender 
lodged with Mr Morrison, the clerk, the letters of suspension, with 
the partibus regularly marked, in order to calling, and obtained from 
him a certificate in ordinary form, which being presented to the 
keeper <^ the Minute-book, the protestation was scored. This being 
done on the 24th of November, the calling could not take place 'tiU 
the following Thursday, viz. the 1st of December, and until that 
time the respondents had no right to borrow up, or to see the let- 
ters or reasons of suspension. They however discovered, by pri- 
vate inquiry at the clerk, that the reasons of suspension and pleas 
of law had not been lodged along with the letters, and, in point of 
bet, they were not so lodged till Tuesday, 29 November, the second 
day before the calling, when they were duly given out to the re- 
spondents in ordinary form. 

The respondents not being satisfied with the procedure of the 
cause, gave in a petition and complaint against the suspenders, 
their agent Mr Leven, and Mr Morrison the clerk, founded on a 
very critical interpretation of the 1st clause of the 25th section of 
the act of Sederunt, which requires, that in every suspension, < at 
^ the lodgment of the letters for calling, reasons of suspension or 

' advocation shall be lodged therewith, and if not so lodged, the 

' letters shall not be called.' They therefore complained, that as 
the reasons of suspension had not been lodged at the same time 
with the letters, the clerk was not entitled to receive them after- 
wards, and had acted improperly in granting the certificate upon 
whieh the protestation had been scored. 

The parties complained against answered — That the petitioners 
had received no possible injury from the omission of which they com- 
plained, seeing that they were not entitled to look at the reasons of 



Leven and 
OUitfi. 



14B 



DECISIONS OF THE' 



N<>. 87. 



82 Dec 1831. suspension before the time of calling, previous to which day they 
were lodged ; and that the true meaning of the provision of that 
clause of the act of Sederunt, as explained by the last words, and as 
it had uniformly been acted on, was, that the reasons of suspension 
must be lodged before calling, but not that it was necessary to give 
them in exactly at the same time with, or annexed to the letters. 



BumtiBland 
Whale-Fishiiig 
Company v, 
Leven and 
Others. 



Judgment. 



Opinion of 
Court. 



The Qmrt dismissed the petition and complaint, and found the 
oompbuners liable in expenses. 

Lard Cringletie, — I have some doubts in this case, and should 
like to see the exact terms of the certificate granted by Mr Morri^ 
son. I have no doubt that gentleman intended to act fairly and 
properly in the dischai^ of his duty ; but the words of the act of 
Sederunt are imperative, and reqiure that the reasons shall be lodged 
along with the letters of suspension. 

Lord GUnke. — The meaning of the act of Sederunt is quite dif<^ 
ferent from the sense put upon it by tlie complainers. I can see 
no words which necessarily imply that the reasons of suspension 
must be annexed to the letters, or that they must be given in at 
the same instant ; or that the lodging of a suspension is a mere 
nnllity unless the reasons be given in at the same moment along 
with it The act, sect. 80, only requires that the silspension shall 
be duly lodged, in order to warrant the scoring of the protestation^ 
without saying any thing about the reasons. And the purport of 
the 25th section is only that the suspension cannot be called unless 
the reasons are given in previous to calling. 

Ijord MeadambanL-^l concur entirely with Lord Glenlee. A 
distinct penalty is attached by the act of Sederunt to a particular 
aol^ viz. that if the reasons of suq>ension are not given in previous 
to the time of calling, the letters cannot be called. But by the 
SOth section it is provided, that a protestation may be scored upon 
a certificate that die letters are lodged. It is clear to me that tbe 
act of Sederunt does not bear the meaning put upon it by the com- 
plainers. 

The Lord Justice Clerk. — I agree entirely with Lord Glenlee 
* and Lord Meadowbank. The evident intention of the provision 
in the act of Sederunt is, that the suspension shall not be caUed till 
the reasons are lodged. 



Act. P. EobaiMon. Alt. Dmn qfFac. (Hope, J and RMtifiartL A. P, Mmitrm 
son and John Leven, W. S. A genu. T, Clerk. 

u. 



No. 38. COURT OF SESSION. 149 



SECOND DIVISION. 

No. XXXVIII. 23 December 1831. 

Mbs MARIAN ANSTRUTHER and Husband 

tyaiiut 
SiB WINDHAM CARMICHAEL ANSTRUTHER. 

Sequestration. — Proof. — I. Sequeilration awarded^ although 
there was no depending j^rocess of competition in regard to- the sub* 
jeets sequestrated. 

IL In an application to sequestrate^ correspondence that passed 
between the agents of the competing parties, with a view to ar^ 
range an extrajudicial interim arrangement^ allowed to be founds 
ed on, for the purpose of shewing that the respondent meatrwhile, 
and without intimation to the petitioner, had uplifted part of the 
disputed funis. 

Sir John Carmichael Anstruther died in pupillarity, on SI 
October I88I9 in poflsesaion of tiie entailed estates of Carmichael 
and Anstmther. The succession to these estates opened to Sir 
Windham Anstruther, the deceased's uncle. Sir Windham, some 
years before, had sold his contingent reveisionary interest as heir 
of entail ; but the tutors of Sir John, with his personal funds, ac- 
quired the purchaser's right, under a declaration, that in the event 
of tlieir ward dying during the term of his pupillarity. Sir Wind- 
ham should have power to redeem his life interest, on repayment 
to the heirs of Sir John of the sum paid for it 

Sir John left also a large exeeutry, consisting principally of rents 
accumulated during his minority, which were invested partly in 
heritable, partly in personal securities, and partly in the Govern- 
ment funds. There were, besides, arrears of rent of the year in 
which Sir John died. By the leases, the rents for the crop of 
each year were payable one-half at Whitsunday, and the other at 
Martkmuts ; but by tiie practice of his tutors, the tenns of pay- 
ment were Martinmas and Whitsiyiday. 

Mrs Anstmther, the sister of Sir Windham, presented a peti- 
don to* the Court, (2S Nov. 1881,) alleging right to the whole 
exeeutry, including the rents due at Martinmas and Whitsunday for 
crop 1831, as Sir John's only next of kin, and praying for seques- 
tration <^ihe same, and the appointment of a judicial &ctor there- 
on ; < and in respect it is admitted by Sir Windham Anstmther 
^ that he has no ckuoi upon one-half of said fund, to authorise the 



190 



DECISIONS OF THE 



No. 38. 



23 Dec. 1831. ^ Said judicial factor, after deducting expenses, to pay over said 
^ half to the petitioner.' 



Austruther and 
Husband v, 
Anstrutber. 



Respondent's 
Pleas. 



This application was grounded upon the statement, that when 
about to expede a confirmation, and to adopt such other measures 
as would enable the petitioner to enter into possession of the whole 
executry of her nephew, she was unexpectedly interrupted by her 
brother Sir Windham claiming a half of the executry, and that 
without collation : That while a correspondence was going on be- 
tween the agents of the parties, with a View to an amicable arrange- 
ment for the interim management of the disputed succession, until 
the judgment of a court of law could be obtained, it turned out that 
Sir Windham had drawn a portion of the rents of the Carmichael 
estates, payable at Martinmas, and intimated an intention of up- 
lifting a still larger portion, although these rents clearly formed part 
of the moveable succession, whether considered as proper executry, 
or as belonging to the heir, since, even in the latter view. Sir Wind- 
ham could have no right to interfere with the rents at all till the re- 
demption-money of his life interest was paid, which he had not done. 

As evidence of the petitioner having been misled into a belief 
that no such measure was in contemplation, and also of the alleged 
admission mentioned in the second part of the prayer of the peti-^ 
tion, the correspondence now alluded to was founded on and ap« 
pended to the application. 

It was answered for Sir Windham — That this correspondence 
liaving passed between the parties' agents, for the purpose of effect- 
ing an extrajudicial arrangement, is evidently a confidential corre- 
spondence, and whatever, therefore, might be there stated or admit* 
ted, with the view of promoting that arrangement, ought not to 
have been produced in Court, and cannot be founded on, so as to 
become the ground of any judicial proceeding ; Pentland , 

fiO May 1829. 

But even although the petitioners wfere entitled to found on that 
correspondence, still the application would be altogether incompe- 
tent A regular competition of rights must be actually in Court, in 
order to authorise sequestration of the disputed subject ; BanLL 15, 
15 ; Ersk.]i. 12, 56 ; Lordand Lady Hawley, 1712, 7 S.SfD. 394, 
footnote ; Graham and Others v. Fraser and Others, 13 Feb. 1745» 
Fak, M. 14,345; Simpson's Creditors, Petitioners, 18 Jan. 1750, 
Kilk. M* 14,345; Duke of Hamilton and Others v. Douglas, 28 Nov. 
1761, M. 3966; Blackwoods, Supplicants, 24 July 1781, M. 
14,349 ; and the Koxburghe Competition. But here, not merely 
is there no process of competing rights ; the petitioner has not even 
a legal title of any sort, either to the proper executry, or to the 
heritable property acquired during the minority of her nephew. 



No. 38. COURT OF SESSION. 161 

When the cause came to be advised, the petitioner, for the pur* 23 Dec. lasi. 
pose of obviating the alleged objection to the competency of the ^^^V^^ 
application, in reference to the circumstances in which it was origi- Hu^band^w"" 
nally presented, founded upon the following supervening proceed- Anstruthcr. 
ings: First, The respondent had brought a multiplepoinding (9 
December) for ascertaining the right to the redemption-money and 
his reversionary interest in the entailed estates : Secondly, The 
petitioner had obtained (2 December) a decree-dative as nearest 
of kin of her nephew : And, Thirdly, She had raised .(14 Decem- 
ber) a summons of declarator and adjudication against the re- 
spondent, concluding to have it found that the respondent must 
either collate the rents of the entailed estates, or renounce his claim 
to any part of the ezecutry, and for adjudication of the lands con- 
veyed to the tutors of Sir John by the purchaser of Sir Windham's 
reversionary interest. The petitioner, however, still maintained the 
competency of the petition, as originally presented, on the fol- 
lowing authorities, BoTik. i. 15, 15 ; Ersk ii. 12. 55 ; lb. iii. 
1, 50 ; Cathcart v. Cathcart, 1 1 Feb. 1829 ; Leiths v. Bryce, 8 July 
1830, 5. jr D. In the Roxburghe case, though competing brieves 
had been obtained, the action of reduction and declarator, if execu- 
ted, was certainly not called in Court when sequestration was ap- 
plied for by Sir James Innes. 

With regard to the correspondence between the agents, the pe- 
titioner explained, that he founded on it, not for the purpose of sup- 
porting^ her claims by any concessions which may have been made 
on the part of the respondent, but in order to prove the interfe- 
rence with the disputed funds, and the consequent necessity for the- 
interposition of the Court 

The respondent, on the other hand, maintained, that in determin- 
ing the competency of the petition, the Court could judge of it only 
as it stood at the time it was presented, without any reference what- 
ever'either to the subsequent proceedings founded on by the peti- 
tioner, or to the correspondence. 

The Lord Justice^Clerk observed — I am quite sensible of the de- Opinion of 
licaey of this proceeding. Originally I had the greatest diflBculty ^^"'^* 
on the petition and answers ; but it is impossible to doubt that the 
case is most materially altered by the supervening circumstances. 
I see nothing to prevent the petitioner from referring to the cor- 
respondence between the agents of the parties in justification of the 
application to sequestrate. The circumstances to which I have al-. 
luded are the extracted decree-dative, and the multiplepoinding 
brought by the respondent. In these circumstances am I not en«. 



152 



DECISIONS OF THE 



No. S8. 



OpinioQ of 
Court 



SS Dec. I83K titled to look to the impcMlant fiicC, that according to long custom, 
/""^V^ the rents of 1813 were not exigible till Martinmas of that year and 
Husband v. Whitsunday 1832, so that the rents payable at the former term are 
Anstruther. claimed as proper executry ; and further, that, pending the pro- 
ceedings for an extrajudicial adjustment of the interest of parties, 
the respondent proceeded to collect the rents, as due according to the 
terms of the leases ? I do not mean to state an opinion with regard 
to his right to do so, but to shew the ground there is for a com- 
petition, and that Sir Windham has not hesitated to give effect to 
his own claim by laying hold of the funds in dispute. If Mrs An- 
struther had been aware of Sir Windham's intention to uplift; the 
rents contrary to the custom of the estate, she would hare been en- 
titled to an interdict against such proceedings, more especially as 
she was then in cursu to obtain herself confirmed. Again, with 
regard to the various securities acquired by the tutors of the late 
Sir John, these were confessedly purchased with the executry funds, 
and no party is yet in possession. The declarator and adjudication 
shews that the petitioner is serious in her purpose to bring the 
question before the Court. In all these circumstances, I think 
there are perfectly legal grounds for our interference by awarding 
sequestration. Without such proceeding there may be great in- 
convenience, and, I think, positive risk of loss, while it is clearly for 
the benefit of all concerned that the interest and rents should be 
immediately collected. 

Lord Gknlee. — 1 am quite of an opposite opinion. I am very 
clear that, for any thing yet shewli, there is not power in the Court 
to sequestrate. I know of no instance where sequestration is con- 
sidered as an original independent process. It is, on the contrary, 
always considered as incidental to other processes, where the rights 
of parties may be com|)etentiy settled. I do not say, however, that 
there is no conceivable case in which the Court may not interfere in 
such an application as this, — as, for instance, in order to preserve the 
subject firom imminent destruction. But the present is not a case 
which could j ustify the Court's interference on any such ground. The 
case of Cathcart, referred to by the petitioner, does not appear from 
either of the reports of the case to be at all in point There is no- 
thing in these reports to shew, tiiat the alleged fact of the induciss 
not being run, and the process of course not in Court when the se- 
questraticm was ^plied for, was argued and insisted on before die. 
Court ; and, therefore, it cannot be considered as a decision on the 
point Even if the petitioner had been confirmed at the date of 
this application, I do not think it would have made any difference. 
A party in legal possession is not entitled to apply to the Court to 
sequestrate the subject in order to avoid some inconvenience to him. 



No. 88. COURT OF SESSION. 164 

Neither does the muldplepoinduig appear to me to make the applicar S3 Dm. I8S1. 
tion competent to any extent. Until an action for trying compet- ^"^y^^^ 
ing rights is in such a state as some order or judgment may be pro- '^^'iiiuteBd 
nooncedin it» it will not be competent to apply for sequestration of v, AnttnitiMr, 
the subject, though that may in itself be an expedient proceed- ^ . .^^^ 
ing. Then, with regard to die sums invested in the different se- Court 
eorities, tides would require to be made up to these before a judicial 
fiftctor could demand payment. At present, therefore, I cannot say 
that sequestration is a competent proceeding, and still less a neces- 
sary proceeding. 

• liord Cringletie observed, that the question just came to this, had the 
Court, fropi its equitable powers, a right to award sequestration for 
the interest of all concerned ? and he thought the Court had the 
power, and ought to exercise it, neither party having attained law- 
ful possession ; although he admitted that, in general, sequestration 
was a contingent and incidental process, and that he did not remem- 
ber any case where it was applied for in such circumstances as here 
occurced. 

Lord Meadowbank. — The question raised is not, whether it is ex- 
pedient, but whether we have power to award sequestration. Now 
it is admitted on all hands, and by Lord Glenlee, that if the fimd 
is in danger of perishing, the Court has the power ; and, indeed, it 
would have surprised me if there had been any doubt on the mat- 
ter. I appeal to tiie Roxburghe case as clear and precise on the . 
point, that sequestration may be awarded without a depending pro-^ 
cess. It appears that Sir James Innes, on the 11 November, pre- 
sented a petitioti for sequestration. On the 24th of the same month 
he raised a summons of reduction ; and it was not even said, in the 
application for sequestration, that such action was intended to be 
brought • It was not till the 17th of December that the competing 
brieves were reported to the Court of Session ; but, before that date, 
the Court had sequestrated. There was not therefore a process in 
Court, to which that of the sequestration could be incidental. It 
was a process by itself, originating in a petition, that being the on- 
ly way of getting at the nobile officium of the Court. Seeing, then, 
diat the proceeding is competent, and there is risk of loss without 
sequestration, I cannot doubt the propriety of granting the applica* 

The Court granted the prayer for sequestration, and refused Judgmmt. 
it quoad ultra. 

JFor Uie- Petitioner, Dtctn qfFac. {HcpeJ Jttmeaon, H. Bruce, ffwOer, Campb^^ 
Caihcart, W. S. Agents. For the Respondent, O, /. Pell, /. A, Murray. 

JSmr ^ Dickson, W. S. Agents. F. Clerk. 

VOL. VII. L 



M4 DECISIONS OF; THE No. 8». 



SECOND DIVISION. 

No. XXXIX. 23 Decern^ 1881. 

J. MINTO AND J. GAVIN 

against 
JOHN KIRKPATRICK. 

Pkocbss. — Act of Sederunt, 11 July 1828| sect. C2. and-IOS. 
— I. It is competent to the Lord Ordinary ^ who Jiofi appointed a 
paper to be lodged by a box-day in vacation^ to grant a prorogatioOf 
ifU the party putting in a note fir that purpose any time previous to 
such day ; and the interhcutor of his Lordship^ granting or refusing 
the application^ is subject to review^ of the Court. 

IL The necessity of ffnphying. counsel new to a case of a cofnplieated 
character^ found to be sufficient cause for the Lord Ordinary proro" 
gating^ in terms of the 109 section of this Act of Sederunt^ 

In. this case, which originated in 1797, and in.\)rhich there haA 
been milch litigation, a record was closed in terms of the judiear 
tore, act; and thereafter the Lord Ordinary, (1 July 1831,) ap"* 
pointed the parties to lodge cases upon the whole cause, ^ and that 

< by the first box-day in the ensuing vacation, (1 Sept.), and when 

< lodged, allowed the same to be seen, revised, adjusted, and re*» 

* lodged by the second box*day in the said vacation^ and made 

< avisandum to himself with the revised ca^es when lodged.'. Oa 
the day immediately preceding the first box-day, the defender 
gave in a note to the Lord Ordinary for a prorogation of the time 
for lodging the case ordered, on the ground that, in consequeno^ 
of the absence of the counsel, who had long been the defender's 
only counsel in the cause, and who had prepared the record, it was 
necessary to employ a counsel new to the case, who, from the 
shortness of the time that the process was before him, found it im- 
possible to have the case prepared by the first box-day. The pur* 
suers gave in answers to this application, in which, although it was 
denied that cause had been shewn for granting more time, ten ad- 
ditional days were consented to be allowed to the defender for 
lodging his case ; but, if not lodged within that time, decree was 
craved in terms of the libel, with expenses, in virtue of the 62 sec- 
tion of the act of Sederunt, 11 July 1828, which enacts, < That 

* when the Lord Ordinary, in due preparation of any cause, shall 

< or^er cases for advising in the Outer-House, he shall appoint the 



No. 89. COURT OF SESSION. 155 

saqie to be lodged within a certain period to be fixed by him, on 23 Dee. IMt* 
a due consideration of the circunistancesy and at the same time V^>/^ 
shall appoint them, after being so lodged, to be seen, interchanged ^^ "^ 
and relodged, within a certain period also fixed by him; andfedl* KiikpiitriA. 
ing of the cases, or either of tJiem, being so lodged or relodged, 
the Lord Ordinary shall dismiss the action with expenses, or de* 
G^rn with expenses, as the case may be, against which the party 
shall be reponed only upon a note to the Inner^House, accom- 
panied by the case, and on payment of the previous expenses, 
without prejudice to the opposite party's moving the Lord Ordi» 
nary to pronounce some other interlocutor,' &c. 

* The Lord Ordinary (26 Nov. 1881,) pronounced the following 
interlocutor : * Having advised the note for the defender, answers 

* thereto for the pursuers, and having heard parties' procurators 
^ thereon, refuses the note ; and, in respect the defender's case was 

< not lodged in terms of the order to that effect, on the application 

* pf the pursuers, decerns, in terms of the second conclusion of the 

< libel, for the sum of L. 5000 sterling, with legal interest there<- 
' of,' &c. ; * finds expenses due.' 

i 

The defender redaitned, and founded on the 109 section pf the nefendcr's 
act of Sederunt 1828, which declares, < That in all interlocutors, Pi«^ 
.< ieither of the Lord Ordinary or of the Court, ordering or allow- 

* ing papers froin both or either of the parties, a time shall be fix- 

* ed for giving in the same, with due regard always to the nature 
' and circumstances of the case, which time may be prorogated, 

* provided, before the lapse thereof,' special application, by note or 
' otherwise, shall be made for such prorogation, and no proro^tion 
'* shall, in any instance, be granted, except on cause shown, and 
^ oftener than once.' In terms of this provision, it was muntained, 
that the note was competently presented to the Lord Ordinary ; 
and, on the other hand, as it was clear that the review of his 
Lordship's interlocutor is not excluded by the act of Parliament, 
or act of Sederunt, upon whatever ground it proceeded, and as 
Bufficient cause had been shewn for granting the application, the 
deliverance ought to be recalled, and the defender's case allowed 
to be received. 

The Lord Justice-Clerk said^In point of practice this is a ques- ^ . . 
tion of very considerable importance ; and if my opinion were Coun. 
against the defender, I would be bound to consult the other Divi- 
sion. But I do not think that the 62 section of the act of Se- 
derunt, notwithstanding its apparently unqualified terms, can be 
considered as imperatively binding on the J^ord Ordinary, or that 



156 



DECISIONS OF THE, &c. 



No. 99. 



MintoAiid 
Gvrin v* 
Kiikpatrick* 

Opinion of 
Court. 



^ Dea 1831. the question is to be ruled by tbat section alone, but by it taken in 
conjunctlbn with the 109 section, which certainly entitled the defend- 
er to give in^e note in question to the Lord Ordinary, that haying 
been done previous to the first box-day. This being the case, and 
as there is no exclusion of the review of the Lord Ordinary's in- 
terlocutor, we are necessarily brought to consider, whether what is 
stated in the note to his Lordship was sufficient dause for the iqp- 
plication* Now, I am of opinion that, considering the general na- 
ture of the action and complicated proceedings, if ever there was a 
case in which a pror<^tion was asked on reasonable cause shewnf, 
this must be held to be one. We every day grant prorogation 
upon a statement of the necessity of laying the case before new 
counsel. Numbers of notes are given in to the Court at each box- 
day for delay on similar grounds ; and if the Court is in the practice 
of granting this, it cannot be said that the Lord Ordinary may not 
do the same* 

Lord Glenke. — I agree with your Lordship, The note was com- 
petent in itself ; and I cannot conceive it to be incompetent to re- 
view the Lord Ordinary's refusal of that note. 

Lord Meadowbank. — I am clear that the Lord Ordinary was 
wrong in his opinion, that he had not power to prorogate. 

Lord Cringietie.'^l am of the same opinion. 

The Court accordingly altered the interlocutor, and directed die 
Lord Ordinary to allow the defender's case (which was now pre* 
pared) to be received. 



JudfmiiiC 



Xoftf FuBertont Ordinary. For the Punuen, J. A. JAmQr, J, PvUrmm^ SooUf 
Ihdeqf if JBoUkrsitm, W. 8. uid LeMart, HtoU&r ^ WhUehmd, W, S, Agcnii. 
For the Defender, Sktm, RuUnBirfwrdf Ivory. JE. Madean, W. S. Agent. 

T. Clerk. 



No. 40. COURT OP SESSION. 167 



FIRST DIVISION. 

No. XL. 17 Jamcory 1832, 

MBS MACMIKIN TORRANCE anb HUSBAND, 

againii 
MRS MARGARET CRAUFUIRD and SON. 

Pbocbb8v-»Ei:pbnbe8,— ^ im aeHon before the Covart tfSettian, de* 

cree hemg prwawced in term$\f ihe Ubdf and expentesfoimd dm 

to thepurmaTf eaud the inierheitior being^ ypan appeal to the House 

of IjjrdSf parSg affirmed^ but to a greater extent reoenedy en tium^ 

rit$^ and reversed in toto a» to expeneesy and Ae came remitted to Ae 

Court of Seeeienj with inetruetione to * proceed farAer Aerein as is 

^.consistent with thisjudgmentj and as is just^^ — hJdf that a daim 

. hg Ae defender for the expenses incurred prior to appeal was com^ 

' petentj—but^ under the circumstances of the ccue, expenses were re^ 

fused. 

Mrs Macmikin Torbakce, the substitute heir of entail in pes- 
aessioB of the entailed estates of Kilsaintninian and Grange, in the 
eounty of Ayr» together with her husband, in virtue of the 10th 
Geo. III. c. 51, gave to the late Archibald Craufuird, writer to the 
signet, the next heir of entail, several notioes, between the years 
1810 and 1817, of their intention to make improvements on the 
estates ; and these improvements were afterwards executed. 

An action of declarator, founded on the above statute, was after- 
wards brought against Mr Craufuird, by Mrs Torrance, with con- 
sent of her husband, stating, that she had laid out L.1572 : 10 : 3j, 
for three-foorths of which, being L.1179 : 7 : 8^ she was a creditor 
of the succeeding heirs of entail ; and concluding, therefore, to have 
it found that Mrs Craufuird, or die heirs entitled to succeed after 
the pursuer, were liable to her in payment of the said sum, and 
' that the heirs, executors, or assignees of the pursuer shall have 
< right, and be entitled to demand and recover payment thereof, as 
* pointed out by the said statute,' &c. Under this general claim 
there were embraced the several sums expended on tiie estate, re- 
lative to which notices had been given. 

In defence it was objeded generally — That in regard 4x> some l>efeDden' 
of the improvements; the terms of the statute had not been strictly *^ 

VOL. VII. M 



158 



DECISIONS OF THE 



Na. 40. 



Torrafice and 
HusbftDd V, 
Craufuird and 
Son. 



}7 Jan. 1832. Complied with, and that the expenses could not therefore form 
a just charge against the estate, or against the succeeding heir of 
entaQ. 

But the Court, upon advising mutual informations, (1 Dec. 1820,) 
repelled the objections proponed by the defender ; found that the 
outlay condescended upon had been duly made and authenticated 
in terms of the act, and therefore decerned in terms of the libel, and 
found the defender liable in expenses. The expenses of process were 
modified to L.70 : 16 : 1, and were afterwards paidr 

Against these judgments the defender entered an appeal to the 
House of Lords ; and upon his death, the proceedings were carried 
on by his widow, the claimant, Mrs Craufuird, as curatrix of her 
son, and the trustee for the creditors of her husband. 

The following judgment was pronounced by the House of Lords : 

< It is ordered and adjudged by the hords Spiritual and Temporal 

* in Parliament assembled, that the interlocutors complained of io 
^ the said appeal be, and the same are hereby reversed, except aff to 

* the sum of L.230 : 5 : 8, being three-fpurths of the sum of L.154t 

* 2s. 7d. expended in building a garden-house at Grange House, and 

< of the sums of L.49 : 5 : 11, L.40 : 12 : 5, and L.62 : 18 : 11, ex- 

* pended on the said entailed estate for draining and planting ; as to 

* which, it is further ordered and adjudged, diat the said interlocur 

< tors be, and the same are hereby affirmed : And it is fiirther order-* 

< ed and adjudged, that the said interlocutors, witli respeet to the 

* costs thereby awarded against the appellant, be, and the same are 

* hereby reversed : And it is farther ordered, ^t the cause be 

* remitted back to the Court of Session in Scotland, to proceed 

* further therein as is consistent with this judgment, and as is 

* just *.* 
The cause, upon a petition by Mrs Craufuird for applying this 

judgment, was remitted to the Lord Ordinary, and the appellants 
claimed not only repetition of the respondents' expenses in the Court 
of Session, which they had been decerned to pay, but also the whole 

* The grounds upon which the House of Lords appear to have proceeded were» 
1. lliat the accounts of ezpenditure» by an heir of entail, under the statute in question, 
must specify the particulars, and not state merely the sum*total expended. 9. That the 
Touchers or receipts must be granted by the party performing the operations, and not by 
tenants "vdio have been authorised to get them done, or had right to them by their leases. 
3, That a notice gi^en in 1810; and operations performed under it in that year, and 
thereafter in 1816, and when interYening notices as to other parts of the estate had 
been made, was not sufficient to authorise improvements in 18)6 ; and, 4 (with regard 
to the expenses awarded to the pursuers,) That it is incompetent to award expenses in an 
acdoB of declarator under the above statute ; see Wilsonand Shaw's Appeal Cases, 
26 May 1826. In reference to the subject of the present report, it does not appear 
necessary to enter further into the details of these objections. 



No. 40. COURT OP SESSION. 159 

expenses incurred by themselves previous to appeal ; to which last 17 Jan. idSS. 
it was objected, that the claim was incompetent, in respect of the ^"^y^^ 
decisions of the Court in the cases of Reid v. Hopes, 18 Nov. u^^^ 
1835, and M^Tavish v. Turner, 12 Feb. 1831. Craufuirduid 

The Lord Ordinary, (7 July 18SI,) found the claimants entitled ^"* 
to repetition of the expenses paid by them ; and, with regard to the 
second claim, his Lordship, (30 Nov. 1881,) < Fmds that there is 
^ no incompetency in the claim ; and in respect that the pursuers 
' claimed to burden the substitute heirs with three-fourths of the 

* sum of L.1572 : 9 : 4|, and that the EDouse of Lords has sustain- 
' ed the claim only to the extent of three-fourths of L.d07 : 5 : 8, 

* being less than one-fifth of the sum demanded ; and that of the 
' sum so sustained, L.227 : 1 : 6| was admitted by the defender in 

* his information to the Court ; finds the pursuers liable in expen- 

* ses, allows an account thereof to be given in, and remits to the 

< Auditor to tax and report.' 

* Note. — It seems to be established by various late cases, parti- 

< cularly that of Stirling against Dunn, 14 Jan. 1831, that it is 

* competent ta give expenses prior to appeal, when the judgment 

* of the House of Lords is silent as to this matter. It was, no 

* doubt, found incompetent to do so in the cases of Reid against 

< Hopes, 18 Nov. 1825, and M'Tavish against Turner, 12 Feb. 

< 1831 ; but the remit in the former case was limited specially to 

< repelling the defences and decerning, giving no discretionary 

* power to do any thing farther; and, in the latter, there seems to 

< have been no remit at alL In the present, there is a remit in the 
' same terms as in that of Stirling, viz. * to proceed further therein 
*< as is consistent with this judgment, and as is just;' and the Lord 

< Ordinary sees nothing which ought to make a different rule ap- 

* plicable to the two cases.' 

The respondents having reclaimed. Lord Balgray^ at the advising. Opinion of 
regretted the strict rule oT interpretation which had been put by the 
House of Lords on the statute in question, which had been passed 
for the purpose of encouraging heirs of entail to lay out money in 
improving the entailed lands. It had formerly been held by the 
Court that the statute, which was of a beneficial nature, and intend- 
ed for the improvement of the country at large, ought to be given 
effect to upon the most liberal principles, and only required to be 
substantially obeyed, and that, in several respects, it was impracti- 
cable to obey it literally. But the House of Lords had put a dif- 
ferent interpretation upon it, and that judgment being pronounced, 
it must form the rule of decision. With regard to the question 
now before the Court, viz. the claim for the expenses prior to ap- 

m2 



wo DECISIONS OF THE No. 40. 

17 Jan. 1632. peal, his Lordship had no doubt that it was competent; but, under 
V^y^ die circumstances of the case, he did not think they ought to be 

SSt"* ^"^^^ ^^^* •» ^^ ^^^ ™"°K ^® improvements had been misled 
Cmufuird and by the general practice and understanding at the time, and his 
^ °' claim, the whole of which was supported by considerations of equity. 

Opinion of had, after all, been sustained to a certain amount in the House of 
^**^ Lords, and the remainder cut down by applying rules of strict in- 

terpretation, which had not formerly been done in such cases. 

Jjord Craigie concurred with Lord Balgray as to the consfxuction 
€i the statute; but the judgment of die House of Lords being 
otherwise, and the defenders' plea being sustained to so great ex* 
tent, he wasl afraid that their right to expenses, or at least to a con- 
siderable part of them, must follow as a matter of course. 

Lord GiOi€$ concurred with Lord Balgray. The giving of ex- 
penses was a matter of discretion with the Court, in whidi they 
were to be guided by the particular circumstances of each case ; 
and, in the present case, his Lordship thought, that under the prac- 
tice which had previously existed, the heir of entail had a probabilis 
causa, and was in perfect bona fides in chdming the expenses laid 
out in improvements, and, for this reason, he did not think she 
ought to be subjected in the expenses of the action. 

The Lord Prendeni thought that the claim was competent, but 
that, under the circumstances of the case, expenses ought not to be 
awarded against the pursuer, who, in the opinion of the Court for- 
merly, certainly had a probabilis causa, when they found her en«- 
tided to expenses, her whole claim being founded in equity. 
Judgment ^^ Qnort therefore found, < that it was competent to claim ex- 

< penses prior to the appeal ; but altered the interlocutor of the Lord 
^ Ordinary, and found no expenses due.* 

Lord Naotonj Ordinary. For Mrs Craufuird, Buehanam, TF. Akximder, W. S. 
ilgent. Alt. Greenskukh, J, jr A. Smiih, W. & Agents. S. Clerk. 

c. 



No. 41. COURT OF SESSION. 161 



SECOND DIVISION. 

No. XLI. 17 January 1882. 

KIRK-SESSION OF DUDDINGSTON 

offainst 
HALyBURTON AND OTHERS. 

Kirk-Tard. — KiRK-S£8SioN. — I. A kirk-session have no right to 
prevent any proprietor of yrotind within the parish from dispomg 
of it as a cemetery for Ae use of the parishioners or others^ aJthongh 
Ae parochial church'-yard be sufficient for the whole inhabitaants. 

n. Held^ That immemorial practice cxmfsrs an a kirk^session an exclu^ 
sive right of hiring out mortdoihs. 

The defenders having built a chapel in the parish of Dudding- 
ston, and in the vicinity of the village of Portobello, for the use of 
persons of the Episcojml persuasion, and having got a piece of the 
smrrounding ground consecrated as a cemetery, according to the 
forms of the Church of England, proceeded to advertise this, ground 
to be sold or let, in small lots, for places of sepulture. This was 
opposed by the Kirk-Sesrion of Duddingston in the present action, 
which concluded mainly for interdict, on the ground that the public 
parochial church-yard, of which they were the exclusive managers, 
was in all respects sufficient for the use of the whole iAabitants of 
the parish, and that the proposed cemetery would interfere with 
their immemorial right of levying certain dues for the benefit of 
the poor, upon the funerab of those interred there, and for the 
use isi mortcloths hired out by them on such occasions ; Magis- 
trates of Grreenock v. J. Shaw Stewart, 4 July 1777, M. App. Kirk- 
yardj No. 1.; Kirk- Session of Kippen i;. M'Claws and Others, 
10. Aug. 1756, ilf. 8013; Kirk-Session of Dumfries v. Incorpora- 
tion of Squaremen, 18 Feb. 1783, M. 8018. 

In defence, it was maintfdned-r-That the pursuers had no better Defenders* 
right to prevent the appropriation of the ground in question to the ^^^ 
intended purpose, than to prohibit any individual in the parish from 
setting apart a portion of his own ground for a cemetery for himself 
or his fiamily, which, however, was undeniably within the legitimate 
exercise of the right of property. But the defenders at the same 
time stated, that they had no desire or intention to evade the ezac* 



162 



DECISIONS OF THE 



No. 41. 



17 Jan. 1832. tion of any dues for the use of mortcloths at interments in the 
^^^V^^ proposed burying-ground, to which the pursuers have a legal title. 
DuddiT^toii Lord Ordinary sustained the defences, assoilzied the defend- 

Hai^burton and ers, and found them entitled to expenses. His Lordship subjoined 
Others. ^^ following note : * The conclusions, as expressed in the libel, 

< relate partly to the right of managing the existing church-yard of 

* Duddingston, and hiring out mortcloths in that parish. So far 

< they ought not to have been insisted on against the defenders, 
^ who have not interfered with that management, or attempted to 

< hire out mortcloths. In so far, on the other hand, as the conclu- 

< sions import a right in the kirk-session, or even the heritors, to 
' prevent any other persons from making and keeping up a ceme- 

< tery within that parish, and selling or letting parts of it, or the use 

< of parts of it, for the burial of the dead, the Lord Ordinary sees 

< no authority in law produced sufficient to support them. It is 

< the law of Scotland that the dead may be buried in church-yards, 

< though not in churches ; and even that the church-yard must be 

< made sufficiently large to receive the bodies of all dead parish- 

< ioners, whose relations choose to make use of it as a cemetery, no 

< other public cemetery being provided within parishes; and it may 

* be law that certain payments are exigible by kirknsessions from 
^ persons burying bodies in church-yards ; but it does not follow, 

* that, in order to increase the amount of such payments, the forma- 

< tion of all private cemeteries, or letting out the use of such for price 

< or hire, is illegal. No statute, dlscision, or dictum is cited, which 

* appears to be to that effect.' 



Judgment 



7%e Courtj on a reclaiming note for the pursuers, and without^ 
hearing counsel for the defenders, unanimously adhered, < and that 

< in respect that the interlocutor shall not be held to interfere with 

< the pursuers' right of hiring out mortcloths.' 



Lord Mackenzie, Ordinary. For the Punuersi Shmi§, MarAaJL And. Seottp 
W. S. Agent. For the Defenders, Dean o/Fac (Hope, J BuMtdU A. jr •/• 
Pderson, Agents. M, Clerk. 

s. 



No. 48. COURT OF SESSION. 16Q 



SECOND DIVISION. 

No. XLII. 19 January 1832. 

BLACK 

agaimt 

AULD. 

Process. — Statute, 6 Geo. IV. c. 120. — In an advocation of an 
action against the jfudgment of an inferior courts upon the merits of 
a case^ the Lord Ordinary has power to decide a plea upon the com- 
petency of the original action before the inferior ju^e, previous to 
making up and closing a record in the Court of Session. 

In an advocation of an action from the Sheriff-court at Wigton, 
by Black against Auld, in which the record had been closed in the 
Sheriff-court without objection, and a judgment had been pronoun- 
ced on the merits of the action, the first additional plea In law sta- 
ted by the advocator in the Court of Session was, that ^ the pre- 

* sent action was incompetent before the Sheriff, being in substance 
^ an action of declarator.' ^ 2. At all events, it was incompetent in 
' a summary form.' 

The counter plea to these on the part of the respondent was, 
that ^ the objections, both as to the Sheriff's jurisdiction, and as to 

* the summary form of the action, cannot now be admitted, in re- 

< spect that these two pleas, although of a preliminary nature, were 
^ not stated either in the original defences or answers* or in any 

< other part of the proceedings in the inferior court.' 

The Lord Ordinary, before making up the record in the advoca- 
tion, ordained the parties to print the letters of advocation and notes 
of additional pleas in law, in order to report to the Court the follow- 
ing question, viz. ^ Whether he has power to decide upon the com- 

< petency of the original action before the Sheriff, previous to mar 

< king up and closing the record in this Court ?' 

Wlien the cause was put out for advising, the Lord Justioe-Cleri Opinion of 
stated, that the point bad been considered in the robing-room by ^^^ 
the whole Judges of both Divisions, and that they were unanimously 
of opinion, that it was competent for the Lord Ordinary to take up 
th;e objection t9 the competency of the Sheriff's jurisdiction in tbie 
original action, as a preliminary plea in this Court, and to decide it 



164 DECISIONS OF THE No. 42. 

19 Jan. 1832. before making up a record in the advocation; and the Court in- 
^^V^**^ structed the Lord Ordinary to proceed accordinerly. 

Black V. Auld. J r © • 

J , ^ Lord Ordinary, JtfifcAffuw. Act, Brown, A\U Marihatt, Campbdlff Mac- 

^ * dowatt, and Jas, Wem^ti, A genu. 

u. 



FIRST DIVISION. 

No. XLIII. 20 Jamanj 183*2^ 

MAGISTRATES OF MONTROSE 

ar/ainst 

G. R. SCOTT. 

Glebe. — Lands originally belonging to Dominican friars^ and after 

the Reformation granted by the Crown to the Magistrates of a burgh 

for behoof of an hospital^ found liable to be designed for a glebe, 

as church lands, without affording a claim of relief against the heri" 

tors of temporal lands in the parish. 

The minister of Montrose having applied to the Presbytery for 
a glebe, the Presbytery, after the usual procedure, designed for 
that purpose about four acres of the lands called Hospital lands, in 
the immediate vicinity of the town, and belonging to the Magis- 
trates, which the Presbytery found to be kirk lands, and as such 
liable to be designed as a glebe. These lands, called Hospital 
lands, had been granted by charter of mortification, dated 9 March 
1517, by Patrick Panter, the last master of the Hospital, to the 
preaching friars or Dominicans of Montrose, and fell, with other 
church property, to the Crown, after the Reformation. By char- 
ters dated 1 Jan. 1570, and 9 July 1587, King James the Sixth 
granted to the Magistrates of Montrose, for behoof of the Burgh 
Hospital, the whole lands, revenues and other possessions which had 
previously belonged to the preaching iriars or Dominicans of Mon^- 
trose. The ancient Hospital of Montrose had been suppressed be- 
fore this time ; but the Magistrates continued in possession of these 
lands, the rents and revenues of which were kept separate from the 
other burgh funds, and applied solely and exclusively, in terms of 
mortification, for the support of the poor of the burgh. 

The Magistrates brought under review of the Court of Session 
the judgment of the Presbytery, designing a portion of the Hospi* 
tal lands for a glebe, on the ground that these lands were not kirk 
lands in the sense of the statute relative to the provision for minis- 
ters in manses and glebes, but the Court afiirmed the judgment of 
the Presbytery. 



No. 43. 



COURT OP SESSION. 



165 



The Magtttrates then brought the petent action of relief i^nst so Jan. 1832. 
all the heriton of the parish, concluding that they should concur ^"^^^^ 
with the pursuers in having the value of the lands so designated Monn^^. ^^ 
ascertiuned, and that being done, that the defenders should pay to Scott. 
the pursuers their several prq)ortion8 of such value. The action 
was brought both against the heritors of kirk lands and of temporal 
lands, upon the ground that the lands designated were not kirk 
lands but temporal lands ; but, in either case^ that the pursuers were 
entitled, for the uses and purposes of the above mortification, to 
relief and compensation against tiie whole heritors of die parish of 
Montrose pro rata. 

In drfence against tiiis action Mr Scott pleaded — ^That as it had Defender'* 
already been found, in the previous proceedings between the Ma- ^^^'^ 
gistrates and the Presbytery, that the Hospital lands were kirk 
lands, the pursuers were not entitied to relief out of the defender's 
lands, on account of die designation, in respect the lands ^ich 
were designed are church lands, whereas the defender's lands are 
tempoial lands ; and it is only in die case where diere are no church 
lands in a parish that temporal lands are liable to be designed; Mi- 
nister of Kingsbams, II June 1799, Jkf. 5140; Laidlaw t^. Elliot, 
2 Dec 1800, M. App. voce QUhej No. & 

The Lord Ordinary pronounced the following interlocutor and 
note : < Finds, diat the lands in question, which belonged to the 
preachmg friars or Dominicans at Montrose at the Reformation, 
and which were granted by James the Sixth to the Magistrates 
and Council of the burgh for behoof of the Hospital, are to be 
held as church lands, and liable in that character to be designed 
for the glebe of die minister : Finds, that the pursuers, in conse- 
quence of the designation, are not entided to relief from the heri- 
tors of temporal lands in the parish ; therefore sustains die defen- 
ces, assoilsks the defender, and finds him entided to his expenses.' 

< NqU. — There are two questions in this case. Ist, Whether 
die hospital lands are subject to designation as church lands or on- 
ly as temporal lands ? 2dly, If they are designed as church lands, 
what is the extent of the pursuers' right of relief? 

< On the first point, it may be remarked, that the statute 1644 
excepts church lands mortified to universities, schools and hospi- 
tals from designation. That statute fell under die act rescissory ; 
but as it is held by Stair, and all die other text writers, to have 
been revived in many respects by the act 166S» there is no reason 
why it should not have been revived in this respect also. The point 
was considered as doubtful in the case of Lord Forret, Feb. 6. 1678, 
and reserved for farther consideration ; but the result of die case is 



166 



DECISIONS OF THE 



No. 43. 



80 Jon. 1832. 



Magistrates of 
Montrose v, 
Scott. 



Judgment. 



not reported. It appears, however, from the authority of Stair, ii. 
3. 40, that the statute is not in force in this respect; for he 
lays it down, that lands mortified to a College are liable to the 
burden as church lands ; and so it was found by the first interlo* 
cutor in the case of Kingsbams, June 11. 1799, — a finding which 
is not affected by any of the £Eurtber proceedings in that case. 

^ On the second point, the authority of Stair and Bankton is ex- 
press, that the glebe is to be designed out of chmrch lands, and 
that it is only in the case of there being no church lands in the pa.* 
rish that temporal lands are subject to designation. The opinion 
of Erskine, who refers to Stair, is to the same effect ; although 
there is an expression in his larger work, which is somewhat am- 
biguous. In his Principles of the Law of Sodtland ao watik «m- 
bigai^ oecuiB. T l ifr ■ iil l Hii il i n nir MgicuA le to die doctrine laid 
down by the Court in the first case of Kingsbams, June 10. 1794, 
and by the first interlocutor of the second case of Kingsbarns, June 
1 1. 1799. That interlocutor was recalled in the special drcumstan- 
ces of the case, namely, a virtual agreement on the part of the heri- 
tors of the temporal lands at the time of the disjunction of the parish 
of Kingsbams firom that of Crail, and on an express obligation, on 
their part, afterwards that they should be liable for the minister's 
glebe, or a sum paid in lieu of it The last decision, therefore, does 
not touch the general principle as laid down by the text-writers; and 
the Note in Council on Parishes, p. 370, relative to that case, as a 
late writer observes. Bell's Principles of the Law of Scotland, 
p. 302, is not to be relied upon. If it^is clear, therefore, that tem- 
poral lands cannot be designed for a glebe while there are church 
lands in the parish, it follows, that if church lands are designed, 
there can be no daim of relief against the owners of temporal lands. 
A passage in £rBkine, which has sometimes been quoted to the 
contrary, is decisive against this claim of relief. He states, in 
general terms, that * a right of relief, or recourse, is competent 
^ to the heritors whose lands are set off for the manse or glebe, 
' against the other heritors in the parish.' But he afterwards ex- 
plains, that that relief is in terms of the second part of the act 
1644, which ordains, ' that the whole heritors in the parish con- 
' tribute proportionally for making reocmipense to the heritors out 
' of whose lands the said manse or glebe shall be taken respective, 
* viz. heritors of kirk lands when kirk lands are designed, and the 

heritors of all lands of other holding, when 4he designation is of 

other lands, not kirk lands." 

The pursuers reclaimed^ but the Court unanimously adhered. 

Lord Cor0hamae, Ordinary. Act. Hu^erfitrd, Ivory* OSbson-CnUgBf Wordlaw f 
Dahielf W. S. Agents. Alt. Domo/Fac f Hope, J H. J. Robort$(m. Pear- 
WiUtie ff Robertson, W. S. Agents. S. Clerk. 

T. 



son. 



No- 44. COURT OF SESSION. 167 



FIRST DIVISION. 

No. XLIV. 21 January 1832. 

JOHN MACLEAN 

affaingt 

J. L. SHIRREFFS, Trustee on the Sequestrated Estate 

OF Georoe Wilsok. 

Privileged Debt. — The wages and board wages of a gardener^ who 
was also occasionally employed in the cultivation of a Jew acres of 
land, held, an the bankruptcy of his employer, to be a primUged debt. 

Maclean was engaged by Mr Wilson as gardener, to take chaise 
of a garden, let with five acres of land, in the cultivation of part of 
which he was occasionally employed, and also in attending to a plan- 
tation of about 20 acres. He was hired for the year subsequent to 
Martinmas 1829, at L.25 of yearly wages, payable half-yearly, and 
six shillings weekly of board wages. In this capacity he served for 
one year, at the termination of which there was due to him, for 
wages and board wages, a bahmce of L.29, 8s. In October 1830, 
Mr Wilson's estates were sequestrated ; and Maclean having lodged 
a claim on the footing of its being a privileged debt, the trustee dis- 
allowed the claim, and ranked him pari passu with the other per- 
sonal creditors. Maclean brought this judgment under review by 
a petition and complaint, which was followed by answers ; on advi- 
sing which the Lord Ordinary, < in respect that the situation of 

< gardener is, by the old and accustomed practice of Scotland, con- 

< sidered to be a domestic servant, and as such acknowledged by 

< the public law relative to the imposition of taxes; and as the pre- 

< sent application involves a general question, (the facts not being 
* disputed, but candidly acknowledged and stated,) appoints the par- 

< ties to lodge mutual cases,' &c. 

Maclean pleaded — That whether he was to be considered as a Petitioner*! 
domestic or £Eurm servant, he was entitled to a preference. The ^'^**' 
only intelligible definition of a domestic, is a servant who forms 
part of the proper domestic establishment, or whose labour contri- 
butes daily to the wants and comforts of the fiaunily. Under this 
definition a gardener fidls, and he is therefore entitled to all the or- 
dinary privileges of a domestic. The case is different with regard 
to those servants whose labour is employed for purposes of profit. 



168 DECISIONS OF THE No. 44. 

21 Jan. 1832. such as market gardeners, and those employed to raise vegetables 
^'^V^^ for sale, to whom the privilege, being strictly interpreted, may not 
Shirrcfl^ ^* extend ; and even vnih regard to proper farm-servants, it may be 
. . , true, that the privilege given to them is an extension of the ordinary 
Pleas. ^^ sanctioned only by inveterate custom. But an ordmary gar- 

dener, by whose labour fruit and vegetables are supplied for the 
daily consumption of the fiamily, is as much a part of the domestic 
establishment as any servant belonging to it. To maintain that the 
work must be performed within doors, would exclude the coachman 
and other out-door servants, whose claims have never been ques- 
tioned. In the cases referred to by the respondent, where the pri- 
vilege had been denied, the occupations of the persons claiming it 
were entirely different from those of a gardener. Besides, the pe- 
titioner having, according to his agreement, been also employed to 
take part in the ordinary work of the grounds let with the garden, 
18 entitled to all the privil^es enjoyed by ordinary farm-servants. 

Respondent's The trustee answered — There are only two classes of servants 
Pleas. whose wages are held to be privileged debts, viz. farm-servants, (in- 

cluding among that number reapers and agricultural labourers, en- 
gaged by the day or week,) and domestic servants, in the strict 
sense of the word, i. e. servants hired for domestic purposes ; Mel- 
ville V. Barclay, 23 Jan. 1779, M. 11,853, Ad Sed. eo. die; Lock- 
hart r. Paterson, )4 Nov. 1804, M. Ap. Privileffed Debt^ No. 3; 
Crawford v. Hutton, 25 Nov. 1680, Fount. M. 11,832; but under 
neither description does the petitioner £Edi. Being regularly hired 
as a gardener, and only occasionally employed in tr^&ig jobs o(m- 
nected witii the cultivation, not of a fiurm, but of a small field, tiie 
respondent would not have been warranted in holding him to have 
been a farm-servant ; and the only question, and hitherto an unde- 
cided one, is, whether the wages of the petitioner, as a gardener, 
are to be accounted a preferable debt, on the footing of his being 
a domestic servant. But a gardener performs no domestic duty. 
His work consists entirely of out of door work ; and he is as com- 
pletely removed from the domestic establishment, and his duties 
have as littie relation to domestic uses and purposes as those of the 
gamekeeper or forester, neitiier of whom fidls under the description 
of domestic servants; 1 Banlu 2. 54. In various eases, claims of 
preference, on aQeged grounds of equity, and as being analogous to 
the case of domestic and farm servants, have been repelled ; White 
V. Christie, 31 Jan. 1781, Jf. 11,853; Ridley v. Haig's Creditors, 
3 Feb. 1789, M. 11,853; Marshall v. Philip, 12 Feb. 1828; Lock- 
hart, 14 Nov. 1804, HaiUs Dec ii. 1061, M. 11,838; M^Ghishan 
t). D. Athol, 29 June 1819. The act of Parliament, (52 Geo. IIL 



No. 44* COURT OF SESSION. 199 

c 98^) with regard to the imposilioii of taxes, merely prescribes si Jm. 1S38. 
the manner in which the duties there granted are to be levied, and S^y«*^ 
was not intended to be dedaratiMy ^f the relative situation of ser- ^^^^2^*' 
vants, the only object of the dassification being the convenience of , 
government in carrying into effect the imposition of the various Sj^^*^*^^' 
duties dierein contained. 

At the advising the Lard Prtddent observed — That without en- Opinion of 
tering upon the general question, or deciding that an ordinary gar- 
dener was entitled to the privilege as beio^ omisidared a domestio 
servant, there were specialties in the case which appeared to justify 
the daim, and, in particultt*, the eircnmstance of die petitioner re- 
ceiving board wages went £ur to bring him under the denomination 
of a domestic servant 

Lord QiOies was also of opinion that the q>ecial circumstances 
of the case were sufficient to authorise the claim, but add^d, that^ 
in point of equity, it would be hard to deny the privilege to one 
in the situation of a fionily gardener. 

Lord Craigie -f^A indined to take a different view of the case; 
but thought, before dedding it, it might be proper to take the opi- 
nions of the other Judges. At present his opinion was un&vourable 
to the claim of preference, whidi being contrary to the general rules 
of law, must be xegulated by practice, and strictly interpreted; and 
as the question, if it could be stirred, mnst have arisen in the many 
sequestrations occurring since the year 1772, the claimant could 
be at no loss to establish his preference if tiie practice was favour- 
able to it The preference due to fium-servants is founded in rea- 
son, and a consequenc^e of tiie landlord's right of hypothec. As the 
fruits of the land belong to tiie landlord until his rent is paid, it is 
but just tiiat he should pay for the labour employed in bringring those 
fruits to perfection. And if farm-servants are preferable to the land- 
lord himself, tiiey must a fortiori be preferable to those to whom 
tiie landlord is preferred. The giving of a similar preference to 
house-servants is not so easily explained. The first dedsion to be 
found in the books is in the case of Crawford, (noticed by Lord 
Stair,) 25 Nov. 1680. In accounting with tiie creditors of the de- 
ceased, an executor confirmed had taken credit for payments of fees 
to house-servants, as well as of the fees of physicians and others 
standing in similar circumstances, and he was allowed credit for 
those payments for the year or last half year witiiin which the de- 
ceased died, according to the terms of the engagements. But 
whedier this was rested upon the same prindple witii fees due for 
medicines, &c. does not appear. In point of reason, house-sevvants 
have so £Eur the advantage over others, that by living in the house of 



170 



DECISIONS OF THE 



No. 44. 



Maclean v. 
ShiireuBB 

Opinion of 
Court. 



SI Jan. 1882. their employers, they receive part of their reoompence in advance, 
in the daily food with which they are supplied. But that circumstance 
could not, without practice and usage, create a preference. With 
regard to gardeners, and others who are not maintained in their 
master's house, it would be very dangerous to establish such a 
right. The same rule would apply when more gardeners than one 
were employed, and to gamekeepers, foresters, hunting and racing 
grooms, and all others, who are truly servants, although they may 
occasionally be engaged in duties ordinarily fulfilled by housenser^ 
vants, but who do not form part of the household, and have separate 
establishments of their own. 

Ijord Balgray said — That on the general question he concurred 
with Lord Craigie, that privileges of this nature were not to be ex- 
tended by implication, and he also thought that, in the general case, 
the definition of the civil law, that a domestic servant is properly 
a menial, (inter mcenia,) applied; but under all the circumstances 
which occurred here, he was inclined to sustain the preference. 
It was a ooDunon thing for servants in the country, as, for instance, 
the man-servant of a clergyman, to act in different capacities. At 
the same time he thought it right to state, that the conduct of the 
trustee in bringing the matter forward was perfectly correct ; and in 
this opinion the other Judges concurred. 

Their Lordships, therefore, < in the circumstances of the case,' 
remitted to the trustee to find that the petitioner was entitled to a 
preference ; and found expenses due. 

Lord Balgrmft Ordinary on the BiUs. For the Petitioner, Jchn Ghfrdon, SioddarL 
James WaUon, W. S. Agent. Alt Daunmf, James RosSf S. S. C. Agent. 

c. 



Judgment. 



SECOND DIVISION. 



No. XLV. 



21 January 1832. 



MCMILLAN 

affoinsi 
CAMPBELL. 



Execution. — Appeal. — Stat. 20 Geo. II. c. 43.— -4 certificate 
by the agent of an appellant, toithout tcitnesses, is not sufficient* evi' 
dence that a copy of the appeal was regularly served upon t/ie oppo^ 
site agent, in terms of the provisions of the statute 20 Geo. IL aU' 



No. 46. COURT OF SESSION. 171 

ihoridng an appeal in certain ea»e$from istferior courts to the Cir- ^\ J*°« 1^^ 
cuit Court of Justiciary. 

CamplMll. 

In this case an appeal was taken by McMillan from a judgment of 
the Sheriff of Renfrew^ to the Circuit Court at Glasgow, and, ac- 
cordingly, his appeal was lodged with the clerk of court within ten 
days after the judgment was pronounced ; but the only eyidence of 
a copy of the aj^eal having been served, as prescribed by the sta- 
tute, upon the opposite party, was a marking on the back of the 
reasons of appeal lodged with die derk, in the handwriting of the 
appellant's agent, and in the following terms : < I David Glassford, 

* procurator for the appellant, did this day serve an exact doubly 

< of the within on Mr Archibald M^Kinnon, writer in Greenock, 

< procurator for the defender, personally apprehended.' Signed 

< David Glassford. — Greenock^ 4 May 1829.' 

A preliminary objection was taken to the competency of the ap- 
peal at the Circuit Court, on the ground, that there was here no 
evidence that a copy had been served on the opposite party, or his 
agent, as required by the 34th section of the statute, 20. Geo. II. 
c. 43; and the Judge on the Circuit certified the case to the Court 
of Session, for the decision of the Judges upon this point, by the 
following interlocutor: < Glasgowj 26 September 1829. — Having 

* heard parties' procurators on the regularity of the service of this 

* appeal ; in req)ect it appears very doubtful, whether a mere cer- 

< tLEcate by the agent of the appellant can be received as suflBdent 

< evidence that the copy of the appeal was regularly served on tlie 

* apposite agent, and diat it is stated to have been previously de- 

< dded at the Glasgow Circuit by Lord Pitmilly, in a case of Tay- 
' lor and several other cases, that this i^^not sufficient; and in re- 

< spect that it is &rther stated that there is a variety of practice in 

< this matter, and as it is of importance that this matter of form 

< should be definitively settled, certifies this case to the Second Di- 

< vision of the Court of Session, and appoints parties to state the 

< question in mutual minutes, to be seen and interchanged.' 

The appellant pleaded — 1. That the appeal had been taken in Appellant's 
open court at the time when the judgment complained of was pro- ^®**- 
nounced, according to the more simple form allowed by the Ist 
clause of the 34th section of the statute ; and that the certificate 
on the back of the process copy of the appeal was only an attesta« 
tion taken by his agent of his having delivered a copy, which in 
strict law he was not bound to do. In support of this plea, he re- 
ferred to a notice in the minute-book of the Sheriff-court, and a 



172 



DECISIONS OF THE 



No. .45. 



M'MUkin 0. 
CampbelL 

AppeUant'i 
Fleas* 



71 Jan. lase. certificate by the depute sheriff-derk and his aaufltant, < tbat the 
' procurator for the pursuer did, at pronouncing final judgment on 

* the 24 April 1829, intimate in open court an appeal of said cause 

* to the then next Circuit Court of Justidary,' &c» 
2dly, Supposbg that this inttmation in open court was insuffident, 

the service of the copy of the app^ which was lodged within ten 
days thereafter, was suffidently vouched by the attestation of tiie 
appellant's agent; as the statute does not enjoin, or indeed authorise, 
any service by a messenger as an actus legitimus, but merely re- 
quires that a copy shall be served upon, that is, delivered, to the 
opposite party or his agent ; and the £act of such delivery may be 
proved in any manner, and is not denied in the present case. 



Retpondent't 
Pleas. 



Judgment. 



Opinions of 

consulted 

Judges. 



The respcmdent answered'^lBtf Tliat there was no proper inti- 
mation of appeal in open court; because there was no written mi- 
nute or entry in the process of sndi appeal by the pursuer or his 
procurator, and because no caution had been found, or offered, at 
tiiat time for the expenses, which the statute requires to be done 
at the time when the appeal is taken* 

2dly, That the service of a copy of the appeal required by 
tiie statute was an actus l^;itimus^ which could only be performed 
by a messenger or officer of court ; or at least that it ought to be 
done before witnesses mentioned in the attestation of service ; and 
that a m^e certificate by & single interested person, like the agent 
for the i^pellan^ could bear no fidth. 

ThQ Court required the opinions of the whole Judges on the 
point raised, and the following printed opinions were consequently 
given in : 

The Lord PresidetU^ LordM Baigray^ Craigie^ Gillies and Mm- 
creiff. 

This case relates to an appeal attempted to be taken firom a judg- 
ment of the Sheriff of Renfirew to tiie Circuit Court at Glasgow^ 

The act SO Geo. II. c 43, allows such appeals to be taken, 

1«^ In open court, at the time of pronouncing decreet by the 
inferior judge ; or, 

2c%, Witiiin ten days thereafiber, by lodging an appeal in the 
hands of die derk of court, ' and serving the adverse party with a 

< duplicate thereof, personally, or at his dwelling-place, or his pro- 

< curator, or agent in the cause, and serving, in like manner, the 

< inferior judge himself, &c. &c, and such service shall be sufficient 
( summons to oblige the respondent to attend and answer,' &c. &e« 

It does not appear that a copy, or duplicate of the appeal lodged 



No. 45. COURT OF SESSION. 173 

with the clerk, was served on the respondent by any officer of the SI J^n. ]S3t. 
law, as no ^xeciition by any such officer is produced. ^"^^^^ 

Further, it appeaM that what was substituted for such service, cl^ben.^' 
was merely a certificate %y the procurator for the appellant, that he -rr^ 
had served an exact double on the procurator for itte respondent, conluhi3^^ 
personally apprehended, wbich certificate is sipied by the procura* Judges. 
tor for the appellant, but without any witnesses to such service. 

We are clearly of opinion that this is not in compliance with 
the statute. 

Isiy When an act of Parliament, in regard to any legal proceed- 
ings, re^i^es the service of any process ot legal notice on a party, 
we are clear that the act must be held to require the actus legiti- 
mos known in law by the term service, particularly when we con- 
sider the oonseqaences whidi may foUow upon the app^ not only 
to the parties, but to tiie inferior judge ; and, of course, that the 
proMM or notice shall be solenmly intimated to the party by an 
officer of the law, of which the regular evidence is an execution of 
service by tiie messenger, or other officer, before, at least, two wit^ 
neass s to the act of service. 

%dy Even if we oould hold that notification or service, by tiie 
private agent of one party, could be held to be sufficient, yet, in 
this case, as such certificate of service does not bear that it was 
made before witnesses, we cannot hold that it is sufficient ; for it 
would be absurd to give greater weight to the certificate of an in- 
terested and partial individual, (as the agent of a party must be,) 
than to the execution of a regular and impartial officer of the law, 
whose execution of service would be null without witnesses. 

Therefore, we are cleariy of opinion that the appeal in this case 
was not served in terms of the statute. 

But we doubt if it be necessary to determine this point, in re- 
spect that it is now stated, that a bond of caution to abid^ by the 
judgment of the Circuit Court, and for payment of the costs, if any 
shall by that Court be awarded, was not lodged in due time, in 
terms of the 36th section of 20 Geo. II, c. 4d» which provides, 

* That where such appeal shall be brought, such complainer, at the 

< same time he enters his appeal, as aforesaid, shall lodge in the 

* hands of the clerk of Court from which the appeal is taken, a 
^ bond, with sufficient cautioner, for answering and abiding by th^ 
^judgment of the Circuit Court, and for paying the costs, if any 

< shall be by tiiat Court awarded ; and the derk of Court shall be 
' answerable for tiie sufficiency of such cautioner.' 

, The condition under which the appeal is allowed by the above 
clause, is^ that the party at the time he lodges his appeal must 
lodge his bond of caution, which in this case was not done. 

VOL. VII. N 



174 



DECISIONS OF THE 



No. 45. 



ri J«D. 1S38. Lord Mtmcreiff. — I concur in this opinion, except that I do not 
think that the appeal was effectually taken in open court, because 
it appears to me dtat the terms of the statute necessarily import, 
that, in order to do so, some writing must be < lodged' with the 
clerk of Court, and that a mere note by the clerk, in the minute 
or diet book, is not what the act contemplated. 



M'Millan v. 
CampbeU. 



Opinions of 

consulted 

Judges. 



Lords Mackenzie^ Medwyn and Newton. — One object of the Legis- 
lature in enacting the Jurisdiction Act was to introduce a simpler 
form of obtaining a review of the sentences of inferior courts in cri- 
minal causes, and in civil causes within the value of L.12, than the 
ordinary forms by advocation and suspension. Instead of a petition 
termed a bill, presented to the Bill-Chamber, which may be refu- 
sed, but which, if passed, allows the appeal, and is a warrant for 
letters of advocation or suspension, issuing under the King^s signet, 
which authorise messengers-at-law to summon the respondent to 
appear in court, the party is at once authorised to appeal; and this 
appeal he may take and enter in open court, at the time the Judge 
pronounces decree, or within ten days, by lodging the same in the 
hands of the clerk of court, and serving the adverse party or his 
procurator with a duplicate of it ; and such service, it is declared, 
shall be sufficient summons to oblige the respondent to attend and 
answer. 

The facilities thus afforded for such appeals were, that the party 
had full power to appeal, without obtaining any warrant from the 
Judge officiating in the Bill-Chamber, or the intervention of the 
royal authority to bring the respondent iuto court by the execu- 
tion of letters under the signet, which requires the intervention of 
an officer of the law. 

The form seems obviously adopted from the mode of appeals to ^ 
die House of Lords, where the petition of appeal does hot require 
to be served on the respondent by a messenger, or other officer of 
the law; and to require this in an appeal to the Circuit Court 
would be again resorting to some of the troublesome and expensive 
machinery which it was intended to abolish. 

Besides, a messenger or sheriff-officer must hold some warrant in 
the King's name, or the Sheriff^s, for serving a notice calling upon 
any person to appiear in court. Of his own authority, no messen- 
ger can do this, and the Jurisdiction Act does not authorise him ; 
on the contrary, it says, that, taking appeal in open court, or 
lodging the appeal with the clerk within ten days, and serving a 
duplicate on the party or his procurator, shall be sufficient summons. 
And it appears, that the very circumstance that service on the pro- 
curator is sufficient, shews that the intervention of a messenger or 



No. 46. COURT OF SESSION. 175 

other officer is not required. The authority of the messenger might 21 Jan. 1832: 
be necessary to summon a party to appear in court ; but if notice ^^^V^^ 
of the appeal to his agent be sufficient, it is clear that the parties ^p^'eii ^' 
are still held to be in court; that the appeal removes them into the ■■ 

Court of Appeal, and that all that is necessary is entering the ap* ^q,u\^°^ 
peal, and giving due notice of it to the adversary, which may be Judges. 
given any how, if the appeal be not in open court, — ^it not being 
said that it must be done by a messenger, and it being contrary to 
the evident intention of the statute to require such a formality. 

If it had been intended that a messenger or other officer diould 
summon the respondent to appear, instead of saying that the appeal 
shall be sufficient summons, we think the act would have provided^ 
that entering appeat should be sufficient warrant to authorise a 
messenger to summon, or to authorise the inferior court to grant 
warrant to its officers to serve it on the party. But no applicatioi^ 
is ever made to the inferior judge, on entering or lodging the ap« 
peal, to grant warrant to an officer to serve the appeal on die oppo- 
site party, and to ordain him to attend and answer. To ordain a 
party to appear before a court, whether of appeal or original, be-^ 
longs to the jurisdiction of that court; but the act has also dispen* 
sed with this, as the appeal is of itself declared to be sufficient sum* 
mons for this purpose^ 

The practice, though not uniform, and where it would be so na- 
tural to adopt the mode of service by a messenger or other officer, 
as in the case of first calling a party into court, confirms this view 
of the law ; and we see no risk in dispensing with a regular citation 
by a messenger. The party who had been successful, whether he 
has occasion or not to extract his decree, can always easily learn if 
an appeal has been taken in open court, or lodged with the clerk 
within the ten days; besides, if service of the appeal upon himself 
or his agent be disputed, it must be established, like any other 
fact, by the testimony of two witnesses ; but we think that service 
by a messenger, and a return upon the execution by him, is not re- 
quisite, as a solemnity like the execution of a summons, which is 
expressly introduced and regulated by statute. It appears, there- 
fore, that where the appeal is not made in open court, it is suffi- 
cient that it is not disputed that the appeal was intimated, (as. 
is the case here,) or that an acknowledgment is produced from the 
party, or his procurator, that it has been served upon them, by 
sending them a copy of it; or, if this has been declined, the party, 
or any one for him, may deliver it before two witnesses, who mu8t> 
be ready to prove this in court ; and, by way of assisting their me-> 
mory, it would be proper that there should be a certificate upon tlie 

n2 



176 



DECISIONS OF THE 



No. 45. 



21 Jan. 1632. 



M'Millan v. 
Campbell. 



Opinions of 

consulted 

Judges. 



process copy, of tlie fitct of delivery} subscribed by the two wit- 
nesses, as well as by the party serying it 

Entertaining this opinion, it is perhaps unnecessary to notice the 
eertifioate by the depute sheriff-clerk, that at pronouncing judgment 
in this case, an appeal was taken in open court, and that a marking 
to that effect is entered in the minute-book of Court. We entertain 
Tery great doubt whether we can admit diis certificate, to prove 
furtfier than that such a marking appears in the minute-book. It 
seems to us, that the only evidence which can be admitted of an 
appeal in open court, is an entry to that effect in the minutes of 
Court, which contain the procedure in each cause, and that a mere 
entry in the diet-book of Court will not supply the want of this or 
a written minute of appeal. All proceedings in such Courts are 
in writing ; and we doubt if the Jurisdiction Act meant to introduce 
a viva voce announcement of the intention to appeal, as equivalent 
to the act of appealing without a written minute to that effect. 

Where an appeal is duly taken in open court, all persons inte- 
rested in the appeal being present in Court, the adverse party and 
the Judge require no other notice or service of the appeal on tliem ; 
and it is only if the appeal b entered at a subsequent period, and 
out of the presence of the parties, that intiipation by service of the 
appeal is required. What seems to have been done here, on read- 
ing out the interlocutor deciding the case, was merely a statement 
by the procurator that he would appeal ; and we are the more con- 
firmed in this, as it does not appear that a bond of caution was then 
lodged, or in the course of that day, as it ought to have been, if 
this was intended as the entering of the appeal in open court au- 
thorised by the statute, for caution was not lodged till the tenth 
day after the interlocutor was pronounced. 

Lard Corefunue* — I concur in this opinion, only I am inclined 
to think, that written evidence of service, by the certificates of two 
witnesses, is necessary, and that the mere acknowledgment of the 
party, or his procurator, that a copy was received, is not enough. 

Lord FuSerton. — I do not think that the appeal in this case can 
be held to have been entered in open court* Independently of 
any inference from the practice in other cases of appeal, the terms 
of the statute seem to be conclusive on this point It provides, 
that * such appeal it shall be lawful for the party conceiving himself 
« aggrieved to take and enter in open court, at the time of pro- 
nouncing such decree,' &c. < or at any time thereafter, within ten 
< days, by lodging the same in the hands of the clerk of Court, and 
* serving the adverse party with a duplicate thereof personally, or 
at his dwelling-house, or his procurator or agent' It further di- 
rects the ^ serving in like manner the inferior judge himself, in 



No, 46. COURT OF SESSION. 177 

< case the appesd shall ooniau) any conclusions against him by way si Jan. 1839. 

* of censure, or reparation fwr damages for alleged wilful injustice, ^^^T*^ 
' oppression, or other malversation/ These expressions neeessarily campbdL ^ 
imply that * the appeal' must consist of some minute or writing, ^ 
containing the appellant's demands, and admitting of being lodged consuhed ^ 
with the derk of Court, and of being served in duplicate on the re- Judgea. 
spondent Although, therefore, the appellant did, as appears from 

the clerk's certificate, intimate an appeal, t. e. intimate his' in ten- 
don to appeal, at the time of pronouncing judgment on the 24th of 
April, I do not think that an appeal can be said to have been taken 
and entered in the sense of the statute until the 4th of May, when 
the paper purporting to be an appeal was lodged with the clerk. 
Accordingly, the paper so lodged removes all doubt upon this point 
From the quotation made in the respondent's minute, pages 6 and 
7, of which the accuracy does not se^m to be disputed,, that paper 
did not contain merely reasons of appeal, but bears to be the appeal 
itself, which < appeal the appellant lodges in the hands of the derk 

* of Court ; lodging caution, and serving the ol^er party with a 

* duplicate hereof in terms of law,' &c. Indeed, this cireumstance 
of the lodging of caution is decisive of the appeal, as the statute re- 
quires, sect 36, that the appellant shall lodge eaution < at the same 
' time he enters his appeal.' 

The appellant's case, therefore, must stand on the second or al- 
ternative mode of entering an appeal authorised by the statute, 
which requires the lodging of it with the clerk of Court, and the 
service of a duplicate on the opposite party, 'or,his procurator, with- 
in ten days. Now, upon this point I should have great difficulty in 
adopting the argument of the respondent to the full extent, and in 
holding that the term service denotes an actus legitimus to be per- 
formed exclusively by an officer of the law, and attested in due form 
by an execution. No authority is referred to in support of this 
proposition ; and it rather appears to me, from the construction put 
on the term in other cases, that it is not confined to the act of an 
officer of the law, but may indude any formal and sufficiently at-* 
tested intimation or delivery of the document to be served. But 
this less rigorous construction of the term appears to be sufficient, 
on the present occasion, to support the case of the respondent 

The object and effect of serving the adverse party with a dupli- 
cate of the appeal, is to oblige the respondent to appear at the Cir- 
cuit Court, under the usual sanction, that if he dpes not, judgment 
msy be legitimately pronounced against him. Accordingly, it is 
enacted, that ^ such service shall be sufficient summons to oblige the 
' respondent to attend and answer at the next Circuit Court,' &c. 
And this provision seems to apply not only to the case of an appeal 



178 



DECISIONS OF THE 



No. 45. 



M'Millao V. 
Campbell. 

Opinions of 

consulted 

Judges. 



91 Jan. 1B32. praying merely for an alteration of the judgment, but to that of its 
containing any conclusion against the inferior judge himself, ^ by 
^ way of censure, or reparation of damages for alleged injustice, op- 
^ pression or other malversation.' But procedure of this kind, and 
capable of producing such consequences, seem necessarily to re- 
quire, according to every analc^, not only a formal intimation to 
the party against whom the demand is directed, but intimation 
made in such a way as to admit of being the subject of an accom- 
panying attestation, su£Scient, until redargued, to satisfy the Judge 
of the court of appeal that such intimation has been made. 

In the present case, however, all that appears is a certificate of 
the agent for the appellant, stating, < that on the 4th of May 1829, 

< he served an exact double of the appeal on the agent for the other 

< party.' Now, whatever latitude may be allowed in construing 
the term service, I cannot hold this to be sufficient. Considering 
the object and effect of the service of the appeal, and considering 
that the service, as well as the lodging of the appeal with the clerk, 
must take place within ten days after the decree appealed from is 
pronounced, I should think, that an intimation or delivery of the du- 
plicate before witnesses, and consequently capable of being made the 
subject of an accompanying attestation, proving, until challenged, 
its own date, was indispensable to support the appeal, unless some 
other and less rigorous form of service had been sanctioned by inva- 
riable usage. And as I do not understand this to be the case, I 
am inclined, on the grounds above stated, to sustain the respondenfis 
objection to the appeal. 



Opinion of 



V!>'" 



When the cause was put out for advising with these opinions, 
The Jjord Justice Clerk said — I am decidedly of opinion, notwith- 
standing the certificate by the depute sheriff-clerk, that there was 
here no proper appeal taken in open court at the time of pronoun- 
cing judgment, and therefore the only question that remains is, whe- 
ther the service of the appeal, which was afterwards taken within 
ten days, is properly attested to have been made on the agent of 
the opposite party. Now, although I do not go so far as to think 
that the service of a copy of appeal which is required by the statute 
is an actus legitimus, which can only be competently performed by 
a messenger or other officer of court, yet I do think that it is an act 
which requires to be attested by that sort of evidence which is pro- 
bative in all such cases, and, therefore, that it should be done before 
witnesses, whose names should be mentioned in the attestation. My 
opinion, in short, coincides in every point with that of Lord Ful* 
lerton. 

Li^d Cringletie was precisely of the same opinion. 



No. 46. COURT OF SESSION. 179 

Ijord Meadawbank. — I agree with your Lordships in thinking that 21 Jan. 1832. 
there was here no proper appeal taken in open court at the time 
when judgment was pronounced. I am likewise of opinion, that no campbeu/* 

particular form of service of the copy of appeal upon the opposite 7-; 

party or his agent is required by the statute, and that it is not an court, 
actus legitimus, which can only be performed by a messenger. In- 
deed, it cannot possibly be so, because the statute neither provides 
nor authorises any warrant of service, and a messenger acting with- 
out a warrant can be no better than a private individual. I look 
upon the delivery of a copy required by the statute, therefore, 
merely as a fact, which may be proved prout de jure, either by wit- 
nesses, or by the oath or admission of party ; and as the respondent 
here does not seem to deny that the service was actually made, ac- 
cording to the attestation of the appellant's agent, I think there is 
no objection to the service. 

Lard Glenke. — It is very clear that there was here no appeal 
taken in open court Then, as to the objection to the attestation 
of the service, it is very true, that there is no warrant given by 
the statute for service by a messenger, and that it cannot therefore 
be considered strictly as an actus legitimus, which only a messen- 
ger with a warrant can perform ; but, nevertheless, the service is 
required to be made by the statute within a certain time, as an es- 
sential solemnity in order to the validity of the appeal ; and the 
Court should have, in evidence of such a solemnity being per- 
formed, the same sort of evidence as bears &ith in all similar cases. 
It ought regularly to be done by something like a notarial instru- 
ment, and the attestation should perhaps be extended by a notary ; 
at all events, it should be done in the presence of witnesses named 
and described in the attestation. 

The Lards having considered the minutes and opinions of the Judgment 
consulted Judges, sustained the objection to tlie evidence of the ser- 
vice of a copy of the appeal upon the respondent's agent, and dis- 
missed the appeal with expenses. 

Lord Reporter, Moncreiff. Act. Dean of Fac. (Hope,J and M. Napkr, Alt. 

JU MaauaU Jmiet Stwart, and Madean f Onffiny Agents. F. Cltrk. 

u. 



180 



DECISIONS OF THE 



No. 46. 



SECOND DIVISION. 



No. XLVI. 



21 January 1832. 



MITCHELL 

against 

MORRISON & Others. 

JuBi6DicTiON.— Process. — Statute. — A road act providing^ thai 
a fatty being ocmvided of evasicm of toUs^ before any one or more 
Justices qfOie Peace^ shaU forfeit a certain sum ; and thaty if any 
person shall think himself aggrieved by the judgment qf the JuMceSy 
it shall be lawful to him to apply for redress^ by summary com- 
plaint^ to the Court qf Session, — held, Ist, that a sentence of the 
Justices may be competently revieufed. by advocation ; and, 2d, that 
the Court if Session has not jurisdiction to find a defender liable 
in penalties who has not been convicted before the Justices. 

By the Stirlingshire road act, 34 Geo. III. c. 13% sect. 42, con- 
Jirmed and continued by 50 Geo. III. c. 16, it is enacted, that 
every person offending against the provisions <^ that statute, ^ and 
being thereof convicted, on the oath, or other legal testimony of 
one or more credible witness or witnesses, before any one or more 
Justices of the Peace for the said county of Sturlingy.ahaU,. for 
every such offence, forfeit and pay to the said trustees, or to 
their treasurer for the time being, Uie sum of 20s. sterling,' j&c. 
By the 70th section of the same statute it is further enacted. 
That if any person or persons shall think him, her or themselves 
aggrieved by any order or other proceedings of the said trustees, 
or by the order of one or more Justice or Justices of the Peac^,.it 
shall and may be lawful for the said person or persons to appeal 
for redress to the next General Quarter Sessions of the said coun- 
ty,' &c. ; ^ and if any person or persons shall think himself ^ her- 
self, or themselves ag^eved, by the judgment of the Quarter Ses- 
sions, it shall be lawful to such person or persons to apply for redress, 
by summary complaint, to the Court of Session ; provided always, 
that, before such application, the party making the same shall find 
caution to pay the sum of 40s. sterling, besides full costs of suit, in 
case such party shall not prevail.' And by the 48th section it is 
enacted, ^ that all forfeitures and penalties by this act inflicted, or 
authorised to be imposed, in relation to any matter or thing in this 
present act mentioned and contained, the manner of recovering 



No. 46. COURT OF SESSION. IM 



wbereof is aot' otherwise partieidariy Greeted) shaU^ upon proof 2i Jan. iHd^. 
itf the said oflFence before any one or laore Justice or Justloes of ^'■''v^^ 
die Peace of the said county of Stirling,' either by oonfession of ^l,*^'';^^ 
the party, or other legal evidence, be levied %y distress and sale othcn. 
of the goods and chattels <tf the party or parties so offending, by 
warrant under the hands of any soch Justioe or Justices of the 
Peace,' &c ; < and in ease.safficient distress cannot be fonnd, or 
such penalties or forfeitures shall not be forthwith paid, it shall 
and may be lawful for any Justice or Justices- of the 'Peace for the 
said county of Stirling, and he and tiiey are hereby required, fcn'; 
warrant und» his or their fauids, to cauos soeboffender or offend- 
ers to be conunitted.to the house of correction or common jail )of 
the county or place where the offence shall be conunitted, therein 
to remain,' &C4 

In terms of tiiis statute, Mikchell, as lessee of the Kerse Uil* 
bar, with concurrence df Ihtf derk of theioad trustees, presented 
an application to the Justices of the Peaee of Stirlingshire, fw re* 
coming the toll-duties and- penalties of the stetate, alleged lo have 
been incurred by Morrison and others conveying passengers iit 
carriages, .betwixt Grangemouth and Lock No. 16, on tiie Forth 
and Clyde canal, along the towing-path on the bank of tiie eanal, 
and tiius anroidix^ tiie tolt^ttties payable at tiie Kerse toll-borj 
through which tiie parties con^dained of would have been necessi^ 
tated to pass had they traveHedby tiie pnblic hnmL The Justices, 
in respect that the turapiko'^u^ specially exempts fimm the pay- 
ment of toU, and from all daim for penalty, on tiie ground of eva« 
sion, all those who merely cross tiie turnpike-road, and do not tra* 
vel more than 100 yards thereon, and tiiat the pursuers themselves 
plead, tiiat tiie defenders travelled altogether on the canal bank, and 
not on ibe tnmpiko-road, found tiiat the defenders had been guilty 
of no evasion subjecting tiiem to thepenalties of the statute^ and 
assoilzied tiiem from tiie condusions of tiie petition.^ Againsttius 
judgment Mitchell i^pealed to the Quarter Sessions ; but the Jus- 
tices dismissed the appeal, * it being admitted by die parties in pre^ 
* sence of the Court, that the coadies in-question, in travelling from 

< Look No. 1& to Grangemouth, traveUed on the canal bank from 
^ Baiosford to the latter place» but did not travel on tiue Kerse 

< turnpike^ except in crossing tiie same where it crosses tiie canal 

< bank at Dalgreen.' 

Mitdkell having brought itimse proceedings under revi^ of tiie 
Court of Session by ImU of advocation^ tiie Lord Ordinary (Eldin) 
remitted to the Justices^ ^ with instructions to readl their intsrlo- 

< cutors against the complainers, to find that all persons ^o use 

< coaches or other carriages, for tiie purpose of travelling upon the 



183 



DECISIONS OF THE 



No. 46. 



Mitcbell V, 
Morrison and 
Others. 



21 Jan. 1832. < traddng-path or roads upon the bank of the canal, must be consi- 

* dered as evading the tolls in the true meaning of the statute, and 

< liable to the penalties therein contained ; to allow the complainers 

< a proof of their allegations, and thereafter to decide according to 

< the rules of justice,' &c This interlocutor was recalled by the 
Court, and the bill of advocation ordered to be passed. 

Thereafter, upon the expede letters, the Court * advocated the 

* cause ; found the respondents guilty of evading the Kerse toll- 
^ bar, by driving their coaches and carts along the banks of the ca- 
iNaal, and therefore liable to the advocator in the forfeitures and pe- 
^ nalties imposed by the statute libelled on ; and remitted to the Lord 
^ Ordinary to ascertain the amount thereof, and to decern for the 
^ same,' &c. 

The defenders presented an appeal against this interlocutor, and 
the House of Lords pronounced the following order : * Inasmuch 
as a question has been raised at the bar of this House, respecting 
the jurisdiction exercised by the Court of Session in this matter, 
which does not appear to have been discussed or considered in 
that Court, it is ordered and adjudged,' &c. ' that the cause be 
remitted back to the Second Division of the Court of Session, to 
consider and state their opinion, whether that Court has, by the 
law of Scotland, any jurisdiction, upon a bill of advocation, to find 
a defender liable in penalties under the acts in the pleadings in 
the said cause mentioned, or either of them, such defender not be- 
ing convicted before a Justice or Justices of the Peace ? And the 
said Second Division of the Court is hereby required to take the 
opinion of the Judges of the other Division of the Court, and of 
the permanent Lord Ordinaries, upon this question.' 



Pursuer's 
FImi. 



Under this remit the Court ordered cases, in which it was 
Pleaded for the pursuer — I. By the statutes in question, the 
Court of Session has jurisdiction to convict for penalties, where the 
Justices refuse to do so on legal evidence. It is true, that the power 
of judging, in the first instance, in this matter is vested in the Jus- 
tices ; but it is expressly enacted, that * if any person shall think 
> himself aggrieved by the judgment of the Quarter Sessions, it 

< shall be lawful for such person to apply for redress by summary 

< complaint to the Court of Session ;' which plainly implies, that 
the Court of Session may give the redress sought directly them- 
selves, where the particular circumstances of the case warrant such 
course of procedure. The acts here complained of were admitted 
by the defenders, in the presence of the Justices in their Quarter 
Sessions ; but they refused to convict, either upon that or any other 



No. 46. COURT OF SESSION, 193 

legal evidence, holding that these acts were not an evasion of tJie 21 Jan. ids?, 
toll-duties, or a violation of the act The admission in question is ^^^^^ 
the ratio decidendi given by the Justices for dismissing the com- M*^'TOii*and 
plaint ; and their judgment at once establishes the complaint, and otben. 
ascertains that they disregarded legal evidence, on which they were ^ ^ 
bound to have convicted. The Court of Session, therefore, gave pleas. 
the proper redress, by finding the defenders liable in the penalties, 
and remitting to the Lord Ordinary to ascertain their amount. 

IL Advocation was a competent and proper form of bringing un- 
der review the proceedings before the Justices. The act, no doubt, 
declares < it shall be lawful to apply for redress by summary com- 

< plaint to the Court of Session ;' but from the introduction of this 
extraordinary remedy, it would be contrary to just principles of in- 
terpretation, to infer the exclusion of the ordinary modes of seeking 
redress against erroneous judgments of the Justices. 

III. The defenders are barred, personal! exceptione, from chal- 
lenging either the jurisdiction assumed by the Court of Session, or 
the manner in which that jurisdiction was exercised, in consequence 
of acts which phdnly import a virtual prorogation of both. For the 
objection in question was not in any manner alluded to in the va- 
rious procedure in the Court of Session, and only for the first time 
pleaded at the bar of the House of Lords. 

Pleaded for the defenders — I. Under the statute, the Court of Defenders' 
Session could not competently do more than declare that the acts ^ 
complained of were evarions, and thereupon remit to the Justices 
to recall their interlocutor, and proceed in terms of the statute. 
The radical and primary jurisdiction is conferred on the Justices 
exclusively. The only conviction authorised by the statute is a 
conviction < on the oath or other legal testimony of one or more 

< credible witness or witnesses, before any one or more Justices of 

< the Peace for the said county of Stirling;' and, on the other 
hand, the only jurisdiction which the statute confers on the Court 
of Session is a j^risdiction to review the judgment of the Quarter 
Sessions. For it is merely enacted, that ^ if any person shall think 

< himself aggrieved by the judgment of the Quarter Sessions, it 

< shall be lawful to such person to apply for redress, by sunmiary 

< complaint, to the Court of Session.' That a prosecution for the 
statutory penalties could not originate in the Court of Session is 
undeniable. But, for the same reason, it must be equally incom- 
petent for that Court to entertain, for the first time, under a process 
of review, questions on which the Justices have given no decision ; 
for this would just be exercising that original jurisdiction which 
confessedly is given to the Justices alone. In the present case. 



182 



DECISIONS OP THE 



No. 46. 



Mitchell V. 
Morrison and 
Others. 



21 Jan. 1832. ( traddng-path or roads upon the bank of the canal, must be eonsi- 

* dered as evading the tolls in the true meaning of the statute, and 
^ liable to the penalties therein contained ; to allow the complainers 

< a proof of their allegations, and thereafter to decide according to 

< the rules of justice,' &c. This interlocutor was recalled by the 
Court, and the bill of advocation ordered to be passed. 

Thereafter, upon the expede letters, the Court * advocated the 

< cause ; found the respondents guilty of evading the Kerse toll- 

< bar, by driving their coaches and carts along the banks of the csl- 
^mslf and therefore liable to the advocator in the forfeitures and pe- 

* nalties imposed by the statute libelled on ; and remitted to the Lord 

* Ordinary to asoertdn the amount thereof, and to decern for the 
^ same,' &c. 

The defenders presented an appeal against this interlocutor, and 
the House of Lords pronounced the following order : ^ Inasmuch 
^ as a question has been raised at the bar of this House, respecting 

< the jurisdiction exercised by the Court of Session in this matter, 

< which does not appear to have been discussed or considered in 

< that Court, it is ordered and adjudged,' &c. ' that the cause be 

* remitted back to the Second Division of the Court of Session, to 

< consider and state their opinion, whether that Court has, by the 

* law of Scotland, any jurisdiction, upon a bill of advocation, to find 

< a defender liable in penalties under the acts in the pleadings in 

* the said cause mentioned, or either of them, such defender not be* 

* ing convicted before a Justice or Justices of the Peace ? And the 

* said Second Division of the Court is hereby required to take the 

< opinion of the Judges of the other Division of the Court, and of 

< the permanent Lord Ordinaries, upon this question.' 



Pursuer's 
Pleas. 



Under this remit the Court ordered cases, in which it was 
Pleaded for the pursuer-^I. By the statutes in question, the 
Court of Session has jurisdiction to convict for penalties, where the 
Justices refuse to do so on legal evidence. It is true, that the power 
^f judging, in the first instance, in this matter is vested in the Jus- 
tices; but it is expressly enacted, that < if any person shall think 

< himself aggrieved by the judgment of the Quarter Sessions, it 

< shall be lawful for such person to apply for redress by summary 

< complaint to the Court of Session ;' which plainly implies, that 
the Court of Session may g^ve the redress sought directly them- 
selves, where the particular circumstances of the case warrant such 
course of procedure. The acts here complained of were admitted 
by the defenders, in the presence of the Justices in their Quarter 
Sessions ; but they refused to convict, either upon that or any other 



No. 46. COURT OF SESSION. 193 

legal evidence, holding that these acts were not an evasion of the 21 Jm. 1633. 
toll-duties, or a violation of the act The admission in question is ^""^V^ 
the ratio decidendi given by the Justices for dismissing the com- ^)^^^„^j„,ii 
plaint ; and their judgment at once establishes the complaint, and others, 
ascertains that they disregarded legal evidence, on which they were -. ^^^,^ 
bound to have convicted. The Court of Session, therefore, gave Pleas, 
the proper redress, by finding the defenders liable in the penalties, 
and remitting to the Lord Ordinary to ascertain their amount. 

XL Advocation was a competent and proper form of bringing un- 
der review the proceedings before the Justices. The act, no doubt, 
declares ^ it shall be lawful to apply for redress by summary com- 
< plaint to the Court of Session ;' but from the introduction of this 
extraordinary remedy, it would be contrary to just principles of in- 
terpretation, to infer the exclusion of the ordinary modes of seeking 
redress against erroneous judgments of the Justices. 

III. The defenders are barred, personali exceptione, from chal- 
lenging either the jurisdiction assumed by the Court of Session, or 
the manner in which that jurisdiction was exercised, in consequence 
of acts which plainly import a virtual prorogation of both. For the 
objection in question was not in any manner alluded to in the va- 
rious procedure in the Court of Session, and only for the first time 
pleaded at die bar of the House of Lords. 

Pleaded for the defenders — I. Under the statute, the Court of Defenden' 
Session could not competentiy do more than declare that the acts ^*^ 
complained of were evasions, and thereupon remit to the Justices 
to recall their interlocutor, and proceed in terms of the statute. 
The radical and primary jurisdiction is conferred on the Justices 
exclusively. The only conviction authorised by the statute is a 
conviction < on the oath or other legal testimony of one or more 

* credible witness or witnesses, before any one or more Justices of 

* the Peace for the said county of Stirling;' and, on the other 
hand, the only jurisdiction which tiie statute confers on tiie Court 
of Session is a jurisdiction to review the judgment of the Quarter 
Sessions. For it is merely enacted, that ^ if any person shall think 

< himself aggrieved by the judgment of the Quarter Sessions, it 

< shall be lawful to such person to apply for redress, by summary 

< complaint, to the Court of Session.' That a prosecution for the 
statutory penalties could not originate in the Court of Session is 
undeniable. But, for the same reason, it must be equally incom- 
petent for that Court to entertain, for the first time, under a process 
of review, questions on which the Justices have given no decision ; 
for this would just be exercising that original jurisdiction which 
confessedly is given to the Justices alone. In the present case. 



184 . DECISIONS OF THE No. 46. 

2lJaii. 1833. the only question raised before the Justices was the relevancy of 
the acts charged to infer liability for the penalties ; and their opi- 
MorrisoD^and ^^° ^^^^ ^^^ these acts, even though committed, did not constitute 
Others. evasion, and they decided, and had occasion to decide, nothing else* 

Defender!' Tbis too was the only question competently before the Court of 
I*l«». Session; and as here an opposite opinion was entertained, the Court, 

sitting merely as a court of review, could do no more than remit 
the case to the Justices, with instructions to recall their interlocu- 
tor, to find that the acts charged were evasions, and thereupon to 
proceed as the statute directs. This would have been the only 
competent procedure, even if each of the defenders had admitted 
every act of alleged evasion libelled, because, until it was establish* 
ed that these admitted acts were acts of evasion, there was no room 
for the Justices to find that the penalties had been incurred. But 
there is, in &ct, no admission to this extent^ or indeed to any ex- 
tent which could authorise a conviction for any specific penalties ; 
Higgans t;. Barony Parish, 9 July 1824 ; Snuth v. Christie, 18 Jan. 
1776, M. 11,816; Chirk v. Johnstone, 7 Dec. 1787, M 11,818; 
M^Whinnie v. M<Fadzen, 11 March 1801, M. App. Primmer^ 
No. 1 ; Heiitois^f Cairney v. Presbytery of Strathbogie, 21 Feb. 
1786, M. 8514; Porteifield v. Gaidiner, 19 Dec; 1829. 

II. The incompetency of the course of procedure adopted ap- 
pears manifest from considering, that a decree of the Court of 
Session ascertaining the penalties could not be enforced by any 
diligence for which that decree could be the immediate warrant 
By the statute, penalties are to be levied by distress and sale of the 
goods of the offending pitrty, under the hands of the Justices of the 
Peace ; arid in case sufficiei^t distress cannot be found, or the pe- 
nalties are not paid, th^ Jtxstices are likewise required to issue a 
warrant for imprisoning the offender for any period not exceeding 
three calendar months. 

III. It was incompetent io review the judgment of the Justices 
to any effect in a bill of advocation, in respect that the only mode 
of applying for redress which the statute prescribes is ^ by summary 
< comphiint to the Court of Session.' Whenever a statute confers 
new jdrisdictton in r^;ard to offences'which it creates, the form of 
procedure there prescribed must be preeisdy followed out ; because, 
whatev^ is not done by authority ai the act, is done without any 
authority at all ; Alexander v. Seymour, 2 Dec 1828. Besides, die 
intention of the statute to exclude otlier remedies is plainly indi- 
cated by the provimon, that the party complaining to the Court of 
Session is to find caution, not merely for expenses, which he would 
have to do in an advocation, but for forty shillings more. 



No. 46. COURT OF SESSION. 186 

IV. So fisur as the objection relates to the jurisdiction assumed 21 J«d. id32* 
by tUs Court to determine questions which had not been dedded ^"•'v^^ 
by the Justices, there was not, and could not, be any prorogation of MoHM/and 
that jurisdiction on the part of the defenders. They were not bound Otben. 
to anticipate that the Court would entertain these ulterior questions, Drfendew' 
after it had reviewed the only judgment which the Justices had pro- PleM. 
nonneed ; and, ihevefoie, it was only in the appeal that the objection 
could be taken. 

Upon considering these pleadings, the whole consulted Judges 
concurred in the following opinion : 

This question has arisen in the course of certain procedure in- Opinion of 
stituted by the pursuer and advocator^ for recovering from the re- j^a^. 
spondents and defenders the penalties imposed by the Stirlingshire 
Road Act, 34 Geo. III. ci^ 138, confirmed by the 50 Geo. III. 
cap. 16, on persons guilty of evading the payment of toll-duties. 
The applitation was made, in teims of the statute, to the Justices of 
die Peace of the Falkirk district ; and afiter various steps of procedure, 
on the 18 November 1823^ the Justices, upon a particular construc- 
tion of the clauses of exemption in die statute, and of the averments 
of the pursuer, found that the defendeis had been guilty of.no eva^ 
sion of the toll-duties, and assoilzied them, with expenses. The 
pursuer then, agreeably to the. provisions of the statute, brought 
this judgment under the review of the Quarter Sessions ; and, on 
die 2d of March 1824, the Justices there assembled, in respect of 
the view they took of die legal effect of the admissions made by the 
parties, dismissed the appeal, and adhered to the interlocutors of the 
Justices, A bill of advocation was then presented, upon considering 
which. Lord Eldin, Ordinary in the Bill-Chamber, remitted to the 
Justices to recall dieir interlocutor ; to find, in tenns of certain in- 
structions regarding die legal import of die provisions in the sta- 
tute ; and < to allow the comphdners a proof of their allegations ; 

* and thereafter to decide according to the rules of justice.' 

Upon a petition by die defenders and respondents to the Second 
Division of the C!ourt, their Lordships remitted to the Lord Qidi-* 
nary to pass the bill. The discussion then proceeded in ordinary 
form ; and the cause having been reported to die Seeond Division 
of die Court, upon cases, the Court pronounced the judgment of 
die 7 July 1827, by which they, inter alia, < find the respondents 

* guilty of evading the Kerse toll-bar, by driving their coaches and 

< carts along the banks of the canal, and therefore liable to the 

< advocator in die forfeitures and penalties imposed by the statute 

* libelled on ; and remit to die Lord Ordinary to ascertain the 

< amoimt thereof, and decern for die same,' &c. 



186 DECISIONS OF THE " No. 4ff. 

1^1 Jan. 1832. That judgment having been brought under review of the House 
.^""^V^^ of Lords, the case has been remitted for the purpose of obtaining 
Moiri^Q^and ^^ opinion of the whole Judges, on the question, < Whether the 
Others. c Court of Sessiou has,, by the law of Scotland, any jiurisdiction upon 

Opinion of ^ ^ ^^^ ^^ advocation, to find a defender liable in penalties^ under 
consulted c the acts in the pleadings in the said cause mentioned, or either of 
udges. ^ them, such defender not being convicted before a Justice, or Jus^ 

* tices of the Peace ? 

In answering this question, we are not disposed to adopt the ar- 
gument of the defenders, on the absolute incompetency, under any 
circumstances, of advocation from the judgments pronounced by the 
Quarter Sessions. The statute merely provides, < that if any per- 

< son or persons shall think himself, herself, or themselves, aggrie-* 

* ved by the judgment of the Quarter Sessions, it shall be lawful to 

* such person or persons to apply for redress by summary complaint 

* to the Court of Session ;' and considering that the right of review 
by advocation is one which might, at common law, have been com- 
petently exercised, we do not think that the pointing out in the 
statute, of a summary mode of redress by complaint, can, in sound 
construction, be held to exclude that right. But then, of course, 
no judgment or finding can be competently pronounced by the 
Court in such advocation, which is inconsistent with the provisions 
of the statute. The express provision of the statute, in regard to 
penalties for the evasion of toU-bars, is, < That any person being 

< thereof convicted on oath, or other legal testimony of one or more 

< credible witness or witnesses, before any one or more Justices of 

< the Peace for the said county of Stirling, shall, for every such 

< ofience, forfeit and pay to the said trustees, or to their treasurer 

< for the time being, the sum of L.20 sterling.' In the present 
case there was no conviction before one or more Justices : On the 
contrary, the Justices, adopting a particular view of the legal effect 
or relevancy of the pursuer's averments, found it unnecessary to 
proceed to proof, and at once assoilzied the defenders. Now, in 
these circumstances, we do not consider an advocation to be incom- 
petent ; and, on the supposition of the judgment of the Justices be- 
ing erroneous, we think that it would have been competent, in such 
advocation, to remit tlie case to the Justices, with instructions cor- 
recting their error, and directing them to allow the pursuer a proof, 
and to proceed to determine the case in terms of the statute. 

But by the interlocutor appealed from, the defenders are found 
guilty of evading the toll-bar ; and a remit is made to the Lord 
Ordinary to ascertain the amount of the penalties. It appears to 
us, that this mode of procedure fs not only unauthorised by, but is* 
contrary to the provision of the statute, which requires a conviction 



No. 46. • COURT OF SESSION. 187 

of every Buch offence, ^ on the oath or legal testimony of one or 21 Jan. 1832. 

* more credible .witnesses, before any one or more Justices of Peace /^V^*^ 

< of the connty of Stirling.' And therefore, in answer to the ques- MorriLa'and 
tion now put to us, we submit, under the above explanation, that, Otbera. 

in our opinion, < the Court of Session has not, by the law of Scot- opinion of 

< land, any jurisdiction upon a bill of advocation, to find a defender consulted 

* liable in penalties, under the acts in the pleadings in the said " ^^ 

< cause mentioned, or either of them; such defender not being con- 

* victed before a Justice or Justices of the Peace.' 

The Lord Justice^Clerk said he concurred in this opinion. 
The Court found in terms of the opinion of the consulted judgmeni. 
Judgesr 

For the Pursuer, P. Robertson. Arch, Wuihcari, W. S. Agent. For the Defend, 
ers, BuaiO, Hiypkirk i Mach, W. & Agents. F, Clerk. 

s. 



FIRST DIVISION. 

No. XLVIL 24 January 1832. 

LIEUTENANT-COLONEL R. HENRY 

affainst 
ROBERT GREIG. 

Sequestration. — At a meeting for the election of a trustee in a se^^ 
qutstratianj and where there was no competition for the office^ the 
creditors having resolved that the vote of a particular creditor should 
not be received^ and that the trustee should keep it out of his catcula- 
iions in the after stages of the sequestration^ in the same manner as 
if the daim had never been producedy-found^ that the said resolu- 
tion was irregular and incompetent. 

The estate of David Bums, distiller at Bimam^ being sequestrated, 
Robert Greig was first elected interim factor, and afterwards trus- 
tee. Both of these elections were without opposition. 

The petitioner, Colonel Henry, lodged a claim against Bums 
with Greig. Part of this claim had been the subject of a submission, 
in which a decree-arbitral had been pronounced, but which decree- 
arbitral was under reduction. The remainder of the claim arose out 



188 



DECISIONS OF THE 



No. 47. 



Henry v* 
Greig. 



24 Jan. 1832. of certain other transactions between the petitioner and the bank- 
rupt At tbe*meeting^«t which the tnutee was elected, and imme- 
diately flfter the election was over, die ^creditors entered into a dis- 
cussion as to the claim lodged for Colonei Henry, (who was not 
present either by himself or* by a mandatary,) and resolved, ^ That 

< Colonel Henry's vote should not be rec^ved ; and instruct the 

< trustee acconfingly to keep it out of his states and calcidationa in 
^ the afiter stages of the sequestration, in the same manner as -if it 

< had never been produced, and that it shall not be counted in estii- 

< mating the value and number of votes ranked upon the estate.' 



PuntMr*B 
PleM. 



Defender's 
Pleaa. 



In a petition and complaint agmnst that resolution of the credi- 
tors, Colonel Henry pleaded — That it was incompetent for a meet- 
ing of creditors, met for the statutory purpose of electing a trustee, 
and where there was no competition for the office, to decide upon 
any claim that had been lodged against the bankrupt estate. All the 
claims duly lodged must be received at that meeting ; and if there is 
any competition for the office of trustee, the party dissatisfied may 
take a protest against any particular vote being received, and try 
the validity of the claim by a petition to the Court; but it is not 
competent for the creditors at large to decide at that meeting upon 
the validity of any of the claims. In this case there was no com- 
petition for the office, and therefore the trustee was the only party 
entitled to. decide on the claims in the first instance, leaving the 
party aggrieved to complain of his judgment in the manner pointed 
out by the statute. 

Answered — The resdution complained of was not to the effect of 
rejecting the petitioner's claim altogether. Its true meaning was to 
reject the claim as giving a title to vote ; and this seemed necessary, 
as the claim was in every respect a groundless one, and was made 
for the purpose of afterwards influencing the proceedings in the se- 
questration. But ftnrther, it was not necessary for the petitioner 
to present a complaint against that resolution, as the respondent 
had intimated to him by letter that he did not mean to act upon it, 
and he had offered to get the consent of the creditors to its being 
recalled. 



Judgment. 



On advising the petition and answers, the Court were unanimous- 
ly of opinion, that the proceedings of die creditors were quite irre- 
gular ; that the trustee was the sole judge of the claims in the first 
instance, although his judgment, disposing of the claim, was subject 
to review in the manner pdnted out by the- statute. As the reso- 
lution had not been recalled, nor a meeting of creditors called for 



No. 47. COURT OF SESSION. 189 

tl«t purpose, the petitioner was not botind to be satisfied with the 24 Jan. isJe. 
assurance of the trustee diat he wonld not act upon that resolution, ^«4i>v^»^ 
and therefore was entitled to complain to the Court They there^ ^^°/^ ^' 
fiMre sustained the complaint, recalled the resolution of the creditors 
oompbiined of, and found the petitioner entitled to his expenses. 

J^tL SkMM, A. Wood. Geo, JUtdM, W. S. Agent Alt Dwn of Fat. (HopeJ 
. Coufon. Wnu DougUu, W. S. Agent. S. Clerk. 

^ T. 



FIRST DIVISION. 

No. XLVIII. 24 January 1883. 

THOMAS MEGGET 

offaimt ... 

JOHN SCOULAR. 

Title TO pubsue. — A party who had been sequestrate^ and obtained 
a dischorge upon a composition to his creditors^ and who had con" 
veyed his whole property to a trustee^ in security and fir relief of 
his ^iutioners in the corr^sitiony fiund entitkdy witfi consent of the 
trustee^ to pursue an action in his oum name^fir recovery of a debt 
due prior to the sequestration. 

The pursuer was sequestrated in 1826. The sequestration was set- 
tled by a composition* In security of the cautioners for the com- 
position, and for other purposes, the pursuer, with concurrency of 
the trustee on the sequestration^ executed' a trust-deed in fitvour of 
Mr Robert Christie, accountant in Edinburgh, conveying the wliole 
sequestrated estate and effects and outstanding debts. 

The pursuer, in his own name, raised the present action against 
the defender, John Secular, for payment of a debt due prior to the 
sequestration. Before doing so, however, he obtained a letter firom 
Mr Christie, his trustee, stating, < that as objections might be taken 

< to your instance in that action, seeing that I hold firom you a 
' trust-disposition to certain property and funds, the residue of 

< your late sequestrated estate, and also stand assignee to the out- 

< standing debts due to the late firm of Aitken Megget and Com- 

< pany, I hereby, in both of the above characters, authorise and 

< empower you to sue, in your own name, for recovery of the sum 
« or sums due by the said John Secular, and to apply the same, 

VOL. VII. o 



190 



DECISIONS OF THE 



No. 4& 



Megget ». 
Scoular. 



S4p Jan. 1 832. < when recovered, to your own use* And I hereby renounce all right ' 
< to sue for the said debts in your &vour, and all claim to the fund 
^ realised therefrom.' This letter was narrated in the summons. 

It was stated by the defender, as a preliminary defence against 
the iiction, that the pursuer had no title to pursue, even if the dainx 
maintained in the summons was well founded. He had conveyed 
his whole property, including the present claim, to his trustee, and 
no evidence was produced to shew that the trustee had right to 
transfer it to the pursuer; and the letter from Mr Christie to the 
pursuer being unstamped, and being of the nature, not of an as<- 
sig^tion or conveyance to the pursuer, but of a renunciation of the 
right which he held for behoof of others, could not effectuate any 
transference or right in favour of the pursuer. 

Farther, supposing the pursuer to be in titulo to pursue the pre- 
sent claim, he must find caution for expenses before he can be al- 
lowed to proceed in the action ; Manuel and Co. v. Bain, 1 Jan. 
1826. 



JudgnMnt. 

Opinion of 
Court. 



The Lord Ordinary repelled these preliminary defences ; and the 
defender having reclaimed^ the Court unanimously adhered. 

Lord Gillies observed — That when a party who had been seques* 
trated had obtained a discharge under the sequestration, he was as 
much entitled to pursue an action in his own name, as if he had 
never been bankrupt 

Lord President. — It is very common for a bankrupt under se- 
questration, who has settled with his creditors by a composition, 
to convey his whole property in relief of the cautioners for his com- 
position ; but that will not deprive him of his title to pursue an 
acdon after he has got his discharge. 



Lord CorAouie, Ordinary. Act Cumnffhanu. MeggU jf /Zoy, W. S. Agcnta. 

Alt. DMA ofFac. (Hcp€j Pyper, Robert MaefaHoM, W. S. Agent. D. 
Clerk. 

T. 



No. 49. COURT OF SESSION. 191 



SECOND DIVISION. 

No. XLIX. S4 January 1832^ 

LOCKHART and Others, Landward Heritors or tu£ 

Parish of Lanark, 
agairui 
The magistrates and TOWN-COUNCIL of the 
B0RGH OF LANARK, and The INTOWN HERITORS 
OF THE Parish. 

Manse.— Kirk. — When a parish consuls of a royal burgh and a 
landward district^ founds that the harden of building and repairing th^ 
manse foils upon the landward heritors and the corporation of the 
burghi in proportion to the cess paid by them^ witlwut prejudice to any 
claim by the corporation for relief against the heritors of the burghs 

The parish of Lanark is partly landward, and includes also the rojral 
burgh of that name, to which a considerable territory is annexed^ 
which is partly held burgage, and included within the proper limits 
of the burgh, and partly contained in a feu-charter from the Crown 
to the community, and held by it under the ordinary tenure of land* 
The cess payable by the landward heritors to the county collector, 
upon their valued rent, amounts to L.6d, 6s., whilst that payable 
by the burgh, being the proportion rated on it of the cess levied in 
all the burghs in Scotland, amounts to L.23 : 7 : 8} sterling. 

The minister of Lanark has, for time immemorial, enjoyed the 
Hceommodation of a manse ; and the expense of several repairs on 
different occasions had formerly been borne by ^ the out and in pa« 
^ rish,' or by the proprietors of land holding burgage within burgh» 
' proportionally, according to their valuations in the cess-books*' 
At length, in the year 1810, the heritors came to a resolution to 
make a considerable addition to the manse ; and the meetings at 
which this resolution was taken, and subsequently followed out, wer^ 
fegularly called, and attended by several landward heritors, by the 
Provost * for Lady Ross Baillie and for the burgh of Lanark, in so 
' iarns they are heritors,' and by several in town heritors, who were 
also magistrates of the burgh. 

. The estimated expense of the repairs agreed to at the first meeting 
amounted to L.568; and on tlie 27th April 1811, a meeting came 
to the following resolution : ' As things may occur during the execu* 
* tion of the work and afterwards, Mr Oairdner, the collector, is ap* 

o2 



192 DECISIONS OF THE No. 49. 

24 Jan. 1832. c pointed to coUect the sum of L.60,0 sterling, two-tliirds to be paid 
TP'^T^ * by the heritors of the out-parish, and one-third by the town, or 

V. Town.Coun-^ heritors of the in-parish, agreeably to the proportions of the last 

cil of Lanark, c repairs of the manse and offices/ 

The landward heritors afterwards found it necessary to advance 
the whole sum, under threats of a prosecution against them by the 
contractor for the arrears of L.200, which had been directed to be 
raised from the burgh or intown heritors* They then raised the 
present action, in which they called as defenders both the magis- 
tnttes of the burgh, as representing the community, and the intown 
heritors, and concluded against both parties alternatively for re- 
payment of the foresaid sum of L.200. 

The Lord Ordinary took the cause to report on cases, and It 
was afterwards argued in a hearing in presence, in which 
Purauen* The pxkvmien pkaded — That it being admitted, that a portion of 

Pleas. ^Q landward part of the parish was territory belong^g to the burgh, 

and consisting of lands held burgage, the^«^ circumstance which 
came into consideration in the case was, that it appeared from all 
the minutes, both upon the present, and on former occasions when re^ 
pairs were made upon the manse, that the magistrates of the burgh, 
as representing the community, had appeared and acted qua heri- 
tors ; and that the question of relief to the corporation by the in« 
town heritors, either of the lands or houses held burgage, had never 
yet been stirred. Seoondf The allocation of the area of the church 
is always made as .between the landward heritors on the one party 
and the corporation on the other ; and the magistrates subdivide 
the portion which is allotted to the burgh, and dispose of it, by let- 
ting it out for hire, or otherwise, among the holders of burgage 
lands, in any way that they think expedient Thirdy That the 
Provost, as acting for the burgh, had attended the meetings with 
reference to the addition to the manse now in question, and had 
oonsented to the outlay, without intimating any opposition op die 
part of the coloration to the share proposed to be iJlotted upon it. 
It is thete£ore material to ccmsider, 1st, That the land within die 
intown part of the parish is the proper territory of die buigh ; 
2d, That it is held in burgage ; 9d, That it is liable in all burgh 
burdens and taxes, such as watching and warding, stent, &o. ; and, 
finally, that it bears its proportion of the cess imposed upon the 
burgh. There is therefore no distinction, in any of these respects^ 
between the part of this territory which is not yet built upon, 
and that which is covered with streets and houses ; — it is all burgal 
property. If the actual holders of property within burgh are di* 
rectly liable to the present claim, they can only be so on the ground 



No. 48. COURT OF SESSION. 193 

tliat tbey are heritora in the parish ; and Ihe consequence would be^ €i Jan. 1839. 
that eyeiy householder in the bunjfh would fell to be considered as ^^^V^*^ 
an heritor in the sense of the statutes, and would be entitled to p^ownlcoun- 
all the privil^;es attached to that character, such as attending pa- cii of Lanark, 

lish meetings, electing schoolmasters, and having a <tirect right to ^l 

haye a portion of the area of the church allotted to him* Whether Punuen* 
the magistrates may not have recourse ultimately upon the proprietors ^^' 
within burgh, and may not be entitled to levy an assessment upon 
them for the expense of these repairs, is a different question, and 
one which the pursuers do not wish to agitate. The plea which 
they at present maintain is, that the corporation must be liable, in 
this as in other public burdens, such as the cess, in the first in« 
stance. The principle upon which this liability is incurred prima- 
rily by the community is, that the corporation is not the superior, 
but the vassal of the Crown, and the proprietor of the lands which 
are granted to it in burgage. The territory is granted to the 
burgh an an nnum quid for the benefit of the community ; and the 
magistrates cannot alienate it, or convert themselves into mere su- 
periors, by granting it out in feu-holdings. The Crown, therefore, 
in respect of the cess, and other parties in respect of other pub- 
lic burdens, are entitled to look to the corporation, in the first in- 
stance, as their debtors, leaving it to assess upon the property within 
burgh, aceorcBng to its real worth ; Magbtrates of Perth v. Stewart, 
18 Dec 1830 ; Daw8<m and Mitchell v. Magistrates of Glasgow, 
14 Nov. 1827 ; and Dixon r. Lowther, 1 Feb. 1823. 

In all questions relating to this matter of building either churches 
or manses, the corporation of the burgh has been held as the he» 
ritor, and has both borne the burdens, and enjoyed the privileges, 
with a share in the area of the church, attached to diat characten 
In the resdnded act 1640, c. 45« it was specially provided, that 
< burghs, and the heritors of landward parts of parishes,' should pro- 
vide manses ; and the omission of that clause in the re-enactment of 
the stafaite 1663, c. 21, only shews,' that, in the view of the Legis- 
lature, the burgh was included in th^ term heritors. In the statute 
1600, c 23, concerning patronages, the magistrates, town-council 
andldrk-session are taken, as representing the burgh, to call the mi- 
nister along with the heritors of the landward parish, in all paiiAes 
partly burgal and partly landward. In all the decisions which have 
hitherto been pronounced, though none of them are perhaps directly 
in^point, the magistrates have been held, in aU questions of this kind, 
to represent the community ; Williamson v. Ramsay, 26 March 
1685, j9f. 5121 ; Heritors of Parish of Kingborn v. The Magis- 
trates, 16 Feb. 1761, M. 7918; Ure, &c. v. Carnegie, 16 May 
1793, M. 7920; Case of Parish of Campbelltown, 1 Feb. 1775^ 
M 7021; and Farie, &c. v. Magistrates of Kutherglen, 2 Feb. 16ia 



194 DECISIONS OF THE No. 4tf. 

. H /an. 1839. ' In conclusion, if the Magistrates are not found liable, as repre* 

^^"^y^^ sehting the community, for the portion of the expense effeiring to 

t>. Town'^oun- *^^ Property of the burgh within the parish, theii the pursuers must 

cii of Lanark, have a good claim, under the altematiye coudusiona of their sum^ 

mons, directly against the proprietors of burgage property, as heri« 

tors in the parish. 

T?7^.^^""- The Magistrates and Town-Council angwered—That the burden 

cil s Pica*. /. 1 .1 1. 1 - • . .1 « . . 

of building and repairing manses is, by statute 1663, c. 21, impo* 
sed expressly and exclusively upon heritors ; and this term has been 
explained to mean the proprietors or holders of the dominium utile 
of lands within a parish ; case of Sir Lawrence Dundas, 2 July 
1778, Haileis Dec, The corporation, therefore, cannot be liaUe 
for any share of the burden, either in so &ir as it is merely the su-^ 
perior of lands held by feu-holding, and subfeued Out to other vas* 
sals, or in respect of burgage lands, in which the Magistrates mere-^ 
ly act as the King's bailies to give infeftment to the proprietors, 
who are the true vassals of the Crown in that descripdon of pro* 
perty. The corporation of a burgh has occasionally borne a share 
in the burden of building churches in parishes partly landward ; but 
that has tnerely been on account of the interest which it has there- 
in, in having a part of the area allotted to it j and the same rule 
cloes not apply to manses ; Farie v. Magistrates of Rutherglen, 
2 Feb. 1813. There is no evidence of any practice in the parish 
of Lanark which can infer a liability against the corporation in this 
case, which would not &11 upon it by common law; and the Pro- 
vost merely attended the meetings^ and consented to the outlay on 
the part of the burgh, in so far as it was an heritor, that is, in so 
far as the corporation is still possessed of the dominium utile of 
lands held in feu-holding of the Crown, and valued in the cess- 
books of the county. 

Intown Heri- . The intown heritors pleaded — That the burden of repairing a 
manse is subject to the same rule as that which governs the repairs of 
a church, and therefore must be defrayed by those to whom a por- 
tion of the area, or seats in the chm'ch, is allocated on a division ; 
^nd in so far concurred in the plea maintained by the pursuers 
against the corporation. 

Judgment. The Court unanimously found the Magistrates liable in the first 

instance, reserving any daim which they mig^t have against the 
intown heritors. 

Opinion of laord Justice-OerJu — In delivering an opinion on this case, I 

must begin by observing, that I do not think there is any sufficient 
-evidence of such an established usage in regard to the mode of as* 



No. 4d. CO0RT OF SESSION. 195 

•esBing in ihu parisli of Lanark^ either a& to the building or repair- .24 Jao. 1898. 
ing of the church or lAanse, as can warrant our deciding the ques- ^^V^^ 
tion that has now been raised upon the ground of usage, and that v.'towcTcouii. 
there is no ground for holding that any of the parties are barred by cii of Lanark, 

tisage from now urging the pleas which they have mamtained. ^[ 

The question is quite open, both in regard to this particular parish, OpiDton oC 
and others supposed to be similarly situated, and- must be decided ^^^^ 
according to the general principles and analogies of law, and con- 
siderations of equity, as &r as the letter can be held to apply to 
such a case. 

Now, keeping in view that this is a parish consisting partly of it 
buigh, and partly of a landward territory, and that there are a num» 
ber of proprietors of houses, as well as of houses and land held bur* 
gage, and which are liable only for a portion of the cess laid upon 
the burgh, and whose property is consequently not rated in the cess 
books of the county, it appears to me, that in regard to this action 
brought by the landward heritors for payment of L.200, being one^ 
third of the expense of repairing the manse of Lanietrk, the claim is 
properly brought against die Magistrates and Council, as represent- 
ing the corporation and community of that burgh, and that it does 
^ot lie (in the first instance at least) against the individuals who 
possess houses or property held by burgage tenure, as heritors. 

In 90 £airy of course, as the burgh is possessed of property valued 
in the county cess-books, and situated beyond the limits of the 
bm^h, it must be liable through its Magistrates, and proceeded 
against as an ordinary landward heritor. 

But in respect of the territory which is included in the grant of 
the burgh itself, and no part of which is liable for county Cess^ it 
appears to me that, on a fair consideration of the statutes and deci<^ 
sions referred to, the Magistrates and Council, as representing, the 
community, are primarily liable. I do not, however, say that thiey 
are so without relief from the possessors of the burgh territory { 
but, as the question of relief as between these parties has not been 
properly before the Court, all that we can do at present is to insert 
a reservation in the judgment, in case the Magistrates desire it, of . 
their claims of relief firom such parties, with all competent defences 
thereto. 

Were the question raised as to the exact proportion of the ex- 
pense of the repairs in questicm which is to be laid upon the buighi 
it might have been attended with some difficulty ; at least I think 
that we hiftve heard nothing yet to shew why the exact sum of one« 
third should be lidd upon it. But the parties seem to have agreed 
limongst themselves that such shall be held to be their proportion^ 
and the Court is thereby relieved of any question on the subject* 



196 DECISIONS OF THE No. 49. 

H Jan. I8S9. ' My roaMOB for holding the eorpcsmCion liable, primarily liablo^ 
^•••V"^ are, fint^ That I cannot read the act IMS, c. 21, aa it has now 
^^^'.*^^;>een finally interpreted not to exclude the daim of the numater cf 
cii of Lanark, a loyal bui^h, with a landward parish annexed, for a manae^ wid^ 
*^ V out seeing that it comprehends the Magistrates and Council as hei> 

Opinion of tors in respect of the burgh territory* I think they are dearly 
^"'^* comprehended under the term heritors. 

Qd7y, I feel strongly the argument founded on the act 1690, with 
regard to patronages, in reference to the case of a boi^h with, a 
landward territory. By that statute it is provided, that where there 
is no landward parish, the magistrates and kiric-«essidn are akme to 
call the minister, and not any dass, or the whole body %A the pror 
prietors within bui^h, under the den<Hnination of heritors ; and 
when there is a landward parish annexed to the burg^, then the 
magistrates and kirk-session, as before, together with the landward 
heriton, are to have that rig^t. I look, therefore, upon this sta* 
"tute as a recognition by the Legishture of the prindple, that the 
corporation of the burgh is the heritor quoad its proper territory. 

I think there is one criterion .» to the proper meuiing of the 
term heritor, as used in the statutes, with reference to all qaeadons 
of this kind, which is decisive i^;ainst the argument of the corpora- 
tion in the present case. If the mere holders of buigh property, 
are to be held as heritors in the view of these statutes, must they 
not enjoy all the rights and privileges which are attached to that 
character, as well as bear the burdens which are inqnised upon it? 
and amongst these, must they not have a right to a share of the 
area of the church? Now, it is admitted on ail hands, that none of 
the holders of property within burgh have, in that dmacter, any 
share of the area aUotted to them ; but, on the contrary, the por» 
tion of the church allotted to. the bufgh foils to the Magiatratoii 
who divide it amongst the burgesses and inhabitants, and dispose of 
it by sale or lease, in any way that they think advisable in die die* 
charge of their official trust 

Neither can we altogether overlook the great inoonvenienoe there 
would arise in all sudi cases, from the multitude of persons who 
would be entitled to act as heritors, if the hdders of property with- 
in burgh were recognised as such. 

It has already been decided in the case of the heritors of Dun- 
bar, 2 June 1881, that in a question as to the management of the 
poor's funds, it is sufficient to call the magistrates and coandl of 
the burgh, as representing the community, though th^y {beaded, as 
H preliminary defence, that all the proper parties had not been call- 
ed, inasmuch as the < proprietors within burgh had not been called 
* iis defenders.' 



No. 46. COUftT OF SESSION. IW 

Loddiig at the genenl impoft of the other decisioiis whidi have 24 Jan. lese. 
been referred to, it appears that, in qaeetions bodi as to chnrcfaeli ^^y^*^ 
mod mansee, the magistrates, when the piMsh is |»rtly bnrgal and ^f^^(>]^ 
partly hmdward, have been faeU to represent the community, and cU of Lanark^ 

that it was not neeessary to make proprietors witiiin burgh parties ^^ 

as heritors of tim parish, to sndi actions. Opiaon of . 

In the ease of Kirkcaldy, (Williamson v, Ramsay, &c.) aidiough ^^^ 
wme effect seems to hove been given to a local usage, it was held 
Aat the town of Kirkcaldy, as wril^ the Balsosaey heritors, wal^ 
liaUe. So in the case of Kinghom, the town, with the heritors!, 
were held liable in proportion to the cess payable by theburgh, 
and entitled to a part of the area of the charrii effeiring to that pro^ 
portion. No donbt in that case also effect was given to the prac- 
tioe of the parish. 

In die case of Campbetttown the Court foond, ^ lliat the loifr- 
4 land church of Campbdltown being a parochial church, must be 

< repaired and rebuilt at the expense of the heritors and burgh ; and 

< as the defenders' (irfio were pursued as inhaUtants) 'are licft 
^ heiitor% find, that ihey are not entitled to any part of the area, 
^except audi share of tiiat part as may effeir to them in propertioA 
«^ with the other inhabitants.' 

As fiir as we are informed of the history of the resei^ed questioh 
of relief in the case of Linlithgow, it appears that nothing at least 
was done inconsistent with the view which I now ramntain. 

As to the case of Rutherglen, in which an atten^ was made to 
give effect to a certain usage of the parish, said to have followed 
upon a dedsion pronounced by Lord Swinton in 1786, by endea- 
vouring to subject the hdklers of certain seats in the church for 
the expense of the manse, it is quite manifest that no question was 
raised then as to the liability of the magistrates and council as re- 
presenting the community, though the clear opinion of the Court 
was, that the expense of building the manse must fiiU on the heri- 
tors and the corporation of the burgh, and not by these seat^holders, 
who had merely acquired their rights by purchase from the magis- 
trates. The seat-holders had been found liable by the Lord Ordi- 
nary, but they were assoilzied by the Court. Therefore, nothing 
can be concluded from that case i^inst the plea of the pursuers, in 
fevour of the defence of the Magistrates of Lanark. 

The Lards OknUej Crh^UtiB and MeadoushaxA concurred entire^ 
ly in the above epinien. 

The folfowing interk>cutor was pronounced :— * The Lords ha- Judgment. 
ving heard the counsel for the parties, and advised the cause, 

< Find, that in parishes consisting partly of royal burgh and 
* partly of a landward district, the magistrates and town-council 



198 



.DECISIONS OF THE 



No. 4«. 



.$4 Jan. 1832. 



Lockhart, &c. 
-9, Town- Coun- 
cil of Lanark, 



Judgment 



.of sacli burgliy a3 representing the community thereof, are he- 
ritors in the sense of the statute 1663, c. 21, and liable, in that 
character, along with the landward heritors, for a proportion of the 
expense of building and repairing the minister's manse ; and in 
respect that the parish of Lanark is a parish of this description, 
and in respect, further, that the fiaimessof the proportion, viz. one»> 
third part of the expense of repairing the manse of Lanark on the 
occasion libelled, claimed by the pursuenr, as representing the 
landward heritors, by whom the whole of the said expense .di^ ori- 
ginally defrayed, has not been disputed by the Magistrates of 
Lanark, find the said Magistrates and Council, as representing 
the community of the burgh of Lanark, liable to the pursuers for 
the said proportion of the said expenses, and decern accordingly 
against the Magistrates, in terms of the libel, for payment to .the 
pursuers of the sum of L.200, \inth the legal interest thereof, from 
and since the term of Whitsunday 1811 till payment ; assoilzie the 
other defenders from the conclusions of the present action ; resep- 
ving to the said Magistrates all claims of relief competent to. them 
against the proprietors dr intown heritors of the burgh, and to the 
said proprietors or intown heritors their defences agsdnst such 
claims of relief as accords : Find no expenses due to any party, 
and decern*' 



Lord Ordinary, Medwyn. Act. Dean tff Fac, fHope^J and MiBer, Alt. (for 

Magistrates,) Keay and Maitiand, (For lutown Heritors,) Shme and WtUsotu 
LoMoH ff Swan, Jas. Annan, and Jdin jr A, S$«iik, Agents. F, Clerk. 

u. . 



SECOND DIVISION. 



No. L. 



27 Janmry 1832. 



BRUCE 

dffainst 

HAMILTON. 

Bankrupt. — Stat. 1696, c* 5. — The act 1696 does not apply to 
purchases made by a creditor from his debtor^ (being a farmer^) iii 
the ordinary course of business^ at a public roup of farm-stocking 
andproducey previous to bankruptcy^ 



Hamilton was a creditor of Mr Rennie of Phantassie previous to 



No. 60. COURT OF SESSION. !99 

the 26 July 1829, for L.60, being the price of a horse purchased 27 Jiiu 183?* 
by him from Mr Remiie, and paid for, but JEifterwards retomed id 
the seller as unsound, and for which Mr Hamilton had not got back HamiitoD, 
the price* On the above-mentioned day, Mr Rennie had, in the 
ordinary course- of his business, a great sale of cattle and sheep be-^ 
longing to him at Phantassie, by public roup, at which stock was 
sold to the amount of L. 12,000. One of the articles of roup oii 
the day mentioned \eas, that purchasers to the amount of L.dO should 
give bilk at three months with'secunty, or be allowed 5 per cent 
discount for ready money. The stock after being knocked dowil 
to be at the risk of the purchaser, and to be removed from the pre- 
mises within eight days. Mr Hamilton attended this sale^ and pur- 
chased two horses at the price of L.147 ; which, being in good cre- 
dit, and well acquainted with Mr Rennie, he carried off immediate- 
ly after the roup, without granting any bill, or coming to any settle- 
ment with Mr Rennie for the price. Mr Rennie was at this timd 
in good credit; but he soon afterwards declared his insolvency, and 
lis estate nas sequestrated on the 20th of August 1829. 

Mr Bruce, who was appointed the trustee on his estate, raised 
the -present action, in which he concluded against Hamilton, eithet 
that the sale to him should be reduced on the statute 1696, c. 5, ot 
he should be obliged to pay the whole stipulated price of L.147, 
without taking credit for the L.60 which was due to him by Mr 
JRennie. 

The defender offered payment of the price under deduction of 
4^e L.60, and pleaded, that the purchase in question having beed 
tnade in the ordinary course of dealing, and without fraud or coUu- 
aion on either side, did not fidl under the operation of either th6 
statute 1696, c. 5, or 54 Geo. III. c. 137. 

The Lord Ordinary pronounced the following interlocutor and 
note :— * The Lord Ordinary having considered the closed record, 
and heard parties' procurators thereon, sustains the defences, as- 
soilzies the defender, and decerns ; finds expenses due, and re- 
mits the account, when lodged, to the Auditor to be taxed.' 
* Nate. — The grbunds of judgment are very simple : The Lord 
Ordinary is of opinion that die act 1696 has no application to a 
case like this. It is certainly not necessary, in a reduction on that 
statute, to aver or to prove fraud. The statute gives a presump- 
tion of fraud, where the &cts which it points out are plainly in- 
volved in the transaction* But the Lord Ordinary conceives, that 
it is necessary, by the very words, and by the plain spirit and 
meaning of the act, that * the disposition, assignation, or other 
* deed' challenged should appear to have been * made or granted* 
by the debtor ^ in favour of his creditor, either for his satisfaction 



200 



DECISIONS OF THE 



No. 50. 



87 Jan. \B32» 



Bruce tk 
Hamilton* 



< or farther flecuritjr, in preference to other creditors ;' and, though 
it is nndoubted law that the statute is of sufficient efficacy to reach 
indirect as well as direct transactions of the description oontem<» 
plated^ and that it cannot be evaded by any covert proceeding 
where the truth is disclosed, it is nevertheless equally true, and 
has always been held, as very distinctly expressed by Mr Bell, 
(iu 217,) that this rule only applies the statute to all conveyances 
to a creditor, < if directly or indirectly intended to confer on him 

* a preference over other creditors.' Before, therefore, there can 
be any room even for reasoning on a case as within the statute, it 
must at the least appear that the conveyance was made with the 
intention of giving to the particular creditor satisfiiction or securi* 
ty of the prior debt ; for if tins intention did not exist, there could 
be no intention to give it as a preference. Hence all the cases 
which have been decided as to transactions in the ordinary course 
of business, where a preference may be actually obtained by the 
indirect effect of the dealings of the parties, although tliere was 
no intention to give either payment or security. Now, in the 
present case, there is no averment in the record, either that the 
sale of the two horses was made to the defender < for' or as in* 
tended either directly or indirectly to operate in payment or se- 
curity of the prior debt ; and on the &ce of the transaction it may 
be assumed that no such thing could be averred. The purchase 
was made at a public auction, at which Mr Rennie sold stock to 
a large amount, about L. 12,000, as averred by the defender. It 
is no doubt a very possible thing, that even under such a sale, a 
preference under the act 1696 might be covered, if a preconcert 
or design to give and take it were averred ; but there is no such 
averment here ; the sale was open to all the world, and it is not 
even stated that the price offered publicly for the horses was be- 
yond their £eur value. The pursuer, indeed, is even at pains to 
state that it was not by any special agreement with Mr Rennie 
that the defender got possession of the horses without granting his 
bill. The disputed fiict, as to this, appears to the Lord Ordinary 
to foe of no importance ; the averment is «t least probable, that 
other pers<Hi6, who were not prior creditors, but known to be of 
good credit, got delivery of articles purchased in the same man- 
ner. But the Lord Ordinary thinks that the question would have 
been exactly the same as it is, if the defender had granted a bill 
for the price : It woidd stiU have remained to be decided whether 
he had not a right of compensation or retention ; and if the act 
1696 does not reach the transaction as it now stands, it would a^ 
little have applied to it in the otlier form, while without it the 
claim of retention would have been clear. But the Lord Ordi* 



No. 50. COURT OF SESSION. 201 

nary sppvehencb, that on the &ce of sach a traiiMtctioii as a sale S7 Jan. 1888: 
and purchase of a single article in an extensive public auction, ^*^V^ 
there can be no presuiiiption of any intention as to a particular £[!!f[|^Q 
creditor. A sale in open market may fall under the act 1696, if 
a previous contrivance be proved ; but if no such contrivance be 
averred, ' a sale in market for a fiiir price is not challengeable,' 
(Bell, ii 219) ; and yet that is not so strong a case as a sale by auc- 
tion, because the bankrupt does specially transact with the parti* 
cnlar creditor, even where he sells in market 

< The case of Hepburn v. Bell, July 1 L 1816, as shortly reported 
by Mr Bell, (vol. ii. p. 214,) is undoubtedly very much in point, 
and applies a fortiori. But even tiiough it were to be doubtied 
whetiier the judgment pronounced in that case may not have gone* 
too iar, the only ground of hesitation would be in a point not at 
all applicable to the present case. 

< The Lord Ordinary might not perhaps have thought it neces- 
sary to state tiie grounds of his judgment so particularly, if it had 
not been represented to him that tiiis is a leading case, and that 
there are a number of other cases under the same sequestration^ 
which will be regulated by tiie decision of it.^ 

The pursuer reclaimed^ but the Contrt unanimously adhered, with-- judgment, 
but hearing counsel for the respondent 

Loffd Ordinary, Umemff. Act. Jbr^CA. Alt Jtamatm and Cidk^ JMm 
jr Bni€$9 and WiMm^ Bkktird$9m ^ MibSbt Agantk ' J*. Clark. 



SECOND DIVISION. 

No. LI. 28 January 1882. 

HAMILTON, &c. 
againM 
BRIDGES, Clerk to the Commissiokers for the Improve- 
ments OF THE City of Edinburgh, und£r Stat. 7 and 8 
Geo. IV. c. 76. 

Statute 7 and 8 Geo. IV. c. 76. (for improvement of city of 
Edinburgh.) — An heritable creditor having been called as a party 
having irUerestf an an oppHcaHon by the Ckmrnsibmrs under th§ 



202 DECISIONS OF THE No. 51. 

29 Jan. 1889. above statute to the Sheriff to imparmel a jury to value premises about* 
^"^^"^^^^ to be taken possession of by the Commissioners^ foimd^ that he was 

V. ^BAdm. ^' entitled to yet a u>arrant to uplift the money consiyned by the Com^^ 

missionerSf in consequence of Ae verdict^ upon assiyniny to them his 
security^ without beiny at the expense of makiny up titles to the sub^- 
jeet in Ute person of the heir of the debtor. 

Dr Hamilton held a first heritable security, with a power of sale, 
over a house in Brown's Square which belonged to the late Dr 
James Miller, for L.400 ; and Mr Nisbet held a second bond, and 
disposition over the same house for L.300. Dr Miller died insol- 
vent^ and the heritable securities were supposed to exceed the value^ 
<^ Ids house, which continued to be occupied after his death by his 
widow and her children, as tenants. 

The house in Brown's Sqiiare fell within the line of buildings 
required by the Commissioners under the improvement statute, (7 
and 8 Geo. IV. c. 76,) for the South approach. An application was 
accordingly presented by them to the Sheriff for a jury to be im- 
pannelled to assess the value of the house. In this application the 
Commissioners called as parties, 1st, the widow and children of the 
deceased Dr Miller, as his representatives ; and, 2dly, both the he- 
ritable creditors upon the subject. Appearance was made befdre 
the jury for the widow, as tenant in possession of the house, and' 
for the postponed heritable creditor for their respective interests ; 
and in consequence of a minute agreed to by the parties, and signed 
by their counsel, * the jury found a verdict, awarding the sum of 
L.900, payable at Whitsunday, to the heritable creditors, and 
L. 150 to the widow as tenant, ^ in respect of any right that she 

< may possess,' for the immediate possession of the house *. 

The provisions of the statute authorise juries impannelled by the 
Sheriff to assess the value of property required to be taken by the 
Commissioners in carrying into effect the purposes of the act, to 
fix the price that shall be paid to the owners and occupiers of the 
subjects ^ for their respective estates and interests in the same ;' 
and declare, that the price so awarded shall be binding and con- 
clusive both against the Commissioners and against ' all or every 

< person whatsoever, having, or claiming any right, title, trust, or 
* interest, of, in, to, or out of such lands, houses,' &c. And it fur- 
ther enacts, that upon payment of the sum so awarded into one of 
the chartered banks in the manner directed by the act, it shall be 
lawful for the Commissioners ^ to remove, pull down, convert, feu 

* There were a few words omitted, by en ovcnigbt, io the end of the verdict, respect* 
ing the sum to be allowed to the tenant ; but these were easily supplied from the minute, 
»Bd did not affect the question at ijiuc between the partiee to the present application. 



No. 51. COURT OF SESSION. 20a 

< Ottt» aifd otherwise* dispose of such lands, houses, &c. and the said 28 Jan. I882*> 

< Commissioners shall be indemnified therein, and shall be vested Si^y^^^ 

* in the possession of the premises so to be converted and disposed ^'gridtfci,*^* 

* of under the authority of this act' By a subsequent clause it is 
provided, that in case any dispute should arise between the parties 
claiming a title or interest in the subjects so purchased, or that they 
shall refuse to accept the price, or shall not be able to make out a 
' good title to the premises, to the satis&ction of the said Commis- 
' sioners, or if the person or persons entitled to such premises shall 

* not be known or discovered, then, and in such case, it shall 

< be lawful for the Commissioners' to pay the money into one of 
the foresaid bamks, * subject to the order, controul, and disposition 

* 6f the Court of Session.' 

In the present instance, the clerk to the Commissioners consigned 
the sum of L.900, awarded by the Jury to the heritable creditors, 
in the Bank of Scotland, to the credit of the parties interested, ha- 
ving declined to pay it to the creditors, except on the condition that 
they should furnish the Commissioners with a regular feudal title to 
the house from Dr Miller's heirs-at-law. 

Dr .Hamilton and Mr Nisbet, (the two heritable creditors,} each 
applied by petition to the Court for a warrant to get payment out. 
of the money lodged in the bank of the principal sums in their 
respective bonds, and the interest due upon them, which fully ex^ 
hatisted the money so consigned. 

The clerk of the Commissioners opposed these petitions, on the 
ground that no title to the property of the house, such as they were 
bound to require, had been tendered to the Commissioners, and the 
statute only conferred upon them a title to enter in possession of the 
subjects, and did not, in any case, dispense with the necessity of a 
conveyance in regular feudal form to the property, so that the pro- 
ceedings under the statute would give no protection to the build- 
ings that would probably be ultimatery built upon the site of the 
house. 

The Court, before answer, appointed the petitioners to intimate 
ike petition to the heirs and representatives of Dr Miller, and the 
respondent to state in a minute what title he desires. 

The respondent, in obedience to this order, stated, that the Com- 
missioners required a regular feudal title to the property, and sug- 
gested the following modes in which one might be made up, viz. 

1st, By precept of clare constat and sasine in favour of Dr MiW 
ler's heir, followed with a disposition to the Commission. But the 
practical and insuperable objection to this mode was, that Dr Mil- 
ler's heir would not incur the representation which such an additio 
l^iereditatis would have imposed upon him. 



204 



DECISIONS OF THE 



No. 51. 



Hamilton, &c. 
». Bridges. 



S8 Jan. 1832. 2diy, By decree of adjudioation in fitvoor of the CkmrnusiiM, fol- 
lowed by charter of adjudication and sasine) and proceeding upon a 
chai2;e and decree of constitution against the heir-apparent of Dr 
Miller. 

3dly, That the preferable heritable creditor shonld exercise die 
power of sale in his bond, and that the CommisGSon might purchase 
the subject at the price agreed on ; or that the heir-apparent of Dr 
Miller should raise an action of sale under the statute 1695, c. 24. 
The objections, however, to these proposals were, that as the pro- 
ceedings must take place by public sale, they would defeat and ren- 
der inept the statutory sale already made, under the verdict of the 
Jury, to the Commission. 

Finally, the Commission required that the title, however made 
up, should be granted at the expense of the heritable creditors. 



Opinion of 
Court. 



The Cawrt were unanimously of opinion^ that the demand of the 
Commissioners was unreasonable, in so' far as it required that the 
heritable creditors should bear the expense of making up a feudal 
title to the subject in the person of Dr Millet's heir, for the puipoae 
of obtaining a reg^nbur conveyance from them, or taking a decree of 
constitution and adjudication against them in fiivour of the Coomiis- 
sion, and that they were only bound to assign and convey their owa 
heritable right to the CommKsioners, if they were required so to do^ 
upon obtaining warrants for the payment of their debts, to the 
amount of the sum consigned with the bank. 

Lord CWn^?efie.-^This appears to me very like a question raised 
for the purpose of getting the dispositions to all the subjects in a 
ramilar situation drawn by the agent for the Commission. Look at 
the clause of the statute which authorises the Commissioners to ap- 
ply to the Sheriff for a jury. Then you have in this case the ver** 
diet of the Jury, awarding L.900 to the heritable creditoi% and 
L.160^ to the tenant, as the full value of the house. The statute 
declares that the payment of these sums, so found by the Jury, to 
tiie parties having right to them, shall vest the Commissioners mth 
the fuU power of pulling down, feuing out, converting, or odierwise 
disposing of the subjects. I should like to know what such a power' 
is, if it be not a right of property ? To be sure, the next clause 
of. the statute goes on to say, that in case of any dispute between 
the parties claiming right to die property, or that they shall not be 
able to make out a good title, the Commissioners shall consign the 
money. This, however, is to provide for the case of a disputed 
right, or where the proprietor is uncertain, or cannot be found ; and, 
even in ihat case, die Commissioners, on making consignment, are 
authorised to enter into possession^ in the same manner as before. 



No. 51. COURT OF SESSION. 205 

But here there* id no depute as to Dr Hamilton's and Mr Nisbet's.^ Ji^u. is:^?. 
rights under their bonds. And put the oise that they had no power ^*^^V*^ 
of sale in their honAsi what more could te required of them than to ^^ B^ldgl^.** 
grant a renunciation and assignation in favour of the Commis- 

'J Opinion of 

sionersr' ^ Court. 

Lard Qlenlee. — I do not see how it is possible to burden the heri- 
table creditors with the expense of making up a title in the person 
of Miller^s heir, eVen supposing that the Commissioners are en- 
titled to demand it. The heritable creditors can only be required 
to assign and convey their rights to the Commissioners; and if the 
la€ter think it necessary, for their own security, to make up a feu- 
dal title to the subject, in their own persons, by adjudication or 
otherwise, through Dr Miller's heir, they must do so at their own 
expense. 

The Lordi Meadowbanh and JuHice^'Clerh concurred entirely with 
Lord Olenlee. 

The Court accordingly granted the warrants, as prayed for by the judgment, 
heritable creditors, to uplift the money. They being bound in the 
first place, if required, to gprant discharges and renunciations of their 
rights in &vour of the Commission. 

Act. 8km$, l^higkiM, A. M*NeilL Alt. thaiCof^ac (Hope), Mowro. A. GnUis, 
Crco. Ihmhp and Jomef JBHdptg, (Party,) Agenu. F. Clerk. 

■ • u. 



SECOND DIVISION. 

■ No. LII. . 28 January 1832. 

GEORGE JOHNSTON 

against 

JOHN INGLIS. 

Tack.^-Suhmary Diligence.— I. A stipulaiian in a lease of a 
quarn/y that a certified accotmt made up by the landlord from t/ie te^ 
nanfs books should warrant summary diligence^ found effectual for 
recovering renty arising from stones quarried beyond the prescribed 
boundsj under a subsequent agreement^ contemplated in the leascj but 
entered into without express reference to any of its conditions. 

11/ Illiquid claims of damages against a landlord for non-fulfilment of 

VOL. VII. p 



206 



DECISIONS OF THE 



No. 52. 



28 Jan. ia3?. 



Johnston v. 
Inglis. 



offreenients relative to the lease of a quarry^ wiU not autJunise reten' 
tion of rent ascertained from the tenants booksj in terms of the lease^ 
and sought to be recovered by diligence proceeding on a clause ofr^ 
gistration, 

Mr Inglis granted a lease to George Johnston ^ of the freestone 

* quarry of Redhall, with the field or indosure in which the same 
' has been lately worked/ &c. ^ the quarry not to be worked, with* 

* out permission of the proprietor, nearer the Lanark road than 

< eighty feet,' which distance, accordingly, is declared to be the 
bounds of the working in that part of the rock. The lease 
obliges the tenant to keep certain books, for the use of the landlord, 
to shew the sales of stones made by him ; and it declares, that when 
the books thus to be kept by the tenant have been examined and 
checked by the proprietor, they shall be held to be the rule for as- 
certaining the amount of the royalty or tack-duty payable by the 
tenant, ^ without prejudice, nevertheless, to such corrections as may 

< afterwards be made in consequence of errors that may be dis* 
^ covered,' &c.; ' and it is further declared, than an account made up 

< from the said books by the said proprietor, and subscribed by himi 
^ shall be sufficient to liquidate a charge against the said George 

< Johnston -and his foresaids, and to oblige him to make payment 
^ of the same' accordingly ; and on which balance to be ascertained, 

< letters of horning on six days' charge, and all other diligence, 
' shall proceed in the same manner as if the amount of the rent had 
^ been fixed by the said tack.' 

Agreements for enlarging the limits of the working were subse- 
quently entered into in 1823 and January 1830 ; and in November 
1830, being the commencement of the last year of the lease, it was 
verbally agreed between the parties, that the tenant should be al- 
lowed to quarry a piece of rock within the eighty feet from the 
Lanark road mentioned in the original lease. 

In virtue of letters of horning proceeding on the lease, and a re- 
lative account made up and subiscribed by the landlord in terms 
thereof, the tenant was charged for payment of the last year's rent^ 
he being then in possession by tacit relocation for an additional year. 
Against this charge a bill of suspension was refused by the. Lord 
Ordinary. A second bill was presented on the grounds, 1. That 
as the lease does not specify any particular sum of .rent, or make 
any limit to the debt, it could not warrant diligence. . 

2. The charge is not given for sums due in virtue of the lease, 
the whole of the stones, (with a small exception,) the price of which 
is now in question, having been quarried, under the verbal agree- 



No. 62. COURT OF SESSION. 207 

ment of November 1830, from rock not comprehended, but ex- 29 Jan. 1832. 
pressly excluded in the original lease. ^^^/^^ 

3. The tenant has brought an action of damages against the j^^^^^" *'* 
landlord for not implementing an agreement entered into between 
the parties in January 1830, by which the originial limits of the 
' wbfking' we'te enlarged, and also for hiiving interdicted him from pro- 
secuting his operations under the verbal agreement of November 
1830. The principle of the rule, that a liquid debt cannot be com- 
pensated by an illiquid claim, as it has been applied in cases be- 
tween landlord and tenant, is, that the lease itself liquidates and 
fixes a certain sum of rent, which is not done by the lease in ques- 
tion. 

Answered — 1. Such stipulations as those which here occur in re- Defender's 
gard to the mode of liquidating a charge against the tenant as a ^^*^' 
warrant for diligence, have been found effectual in questions as to 
bonds for cash-accounts, bonds of caution for bank agents, and others 
of a similar description. There is no allegation here of any devia- 
tion from the prescribed manner of making up and certifying the 
account, or of an overchai^e, and, therefore, the objection in point 
of form is groundless. 

2. The lease provides for the extension of the prescribed bounds 
of working the quarry, in the quarter where the stones, the price of 
which is said to be chiefly in question, were taken ; and so soon as 
the tenant availed himself of the permission given by the landlord 
to work this part of the rock, he did so, subject to all the other con- 
ditions and stipulations of the lease ; for it is not alleged that there 
was even an understood departure from any of these. 

3. The tenant's counter claims are not ascertained to be well 
founded ; but even supposing them to be so, they neither are specific 
in point of amount, nor are they alleged, (but the contrary,) to 
liav€^ arisen through a failure to implement any of the prestations 
of the lease. No rule, however, is more fixed than that illiquid 
and extraneous damages do not entitle the tenant to retain his rent 
constituted by a decree of reg^tration. 

The Lord Ordinary' pronounced the following interlocutor : 
^ Having advised the bill, with the former one refused by Lord 

< Balgray, the ianswers thereto^ and writings produced, sees it ad- 

* mitted by the complaiber, that by both the- agreements in 1823 

* and January 1830, with reference to the lease granted to the c(mi- 

< plainer, the whole obligations in the lease were held and agreed to 

< be oopiprehended in those agreements, with the exception of the 

< limitations, of the extent of the rock in the lease, which were en- 
' larged by these agreements ; and, among others, it was agreed 

p2 



208 



DECISIONS OF THE 



No. 53. 



28 Jan. 1832. 



Johnston v. 
Inglis. 



that a statement) made out from the books kept for the quarriesi 
to ascertain the amount of the rent due, should be a sufficient war- 
rant for letters of hcnming : In respect that it is admitted, in this 
bill, that the whole stones quarried, and for the rent of which this 
charge was given, were quarried from rock which the complainer 
was allowed to work by the agreement 1830 *, and as the rent is 
in no way disputed to be correctly stated, and is therefore a liqui- 
dated debt, against which the complainer only opposes a V9gue 
claim of damages; and further, that he is still in possession, and 
will have rents to satisfy any such claim, if it at aU exists, reuses 
this bill, but sists execution,' &c. < that the complainer may reclaim 
to the Court, if he shall be advised so to do.' 



Judgment* 



The suspender reclaimed^ but the Omrt unanimously refused the 
note, without hearing counsel for the charger. . 



Lords Ordinary, Balgrajf and CrijngUtiB. For the Cbargery Dtan of Fee (Bap^) 

Ad, Andanon. Dickson jf Staoari, W. S. Agents. For the Suspender, 

Jameson, Graham BeB, Alex, Johnston, W. S. Agent. F. Clerk. 

s. 



SECOND DIVISION. 



No. LIII. 



28 January 1833. 



HUGH COGAN 

offainst 

GEORGE LYON & Others. 



Succession. — Substitute akd Cokditional Institute. -« 
Deathbed. — A huahand having comoeyed heritable property to 
kU wifey in caee she survived him^ and to her dispofnees tohKnMh' 
ever; and failing her by doeease before him^ or failing her dupoi^ 
ing the property y in the event of her survivaneey to a third person 
described ; and the wife having survived and executed a disposition 
unth a different destination; the substitute heir in tlie kuAand^s 
settlement found to have a good title to pursue a reduiOion of the 
wife's deed on the head of deathbed. 



• Hiis admission refers, not to the agreement of January 1890, alluded to in the 
preceding part of th? interlocutor, Imt to tha Teibal agreement of 1830^ preriouily man- 
tioned in the report* 



No. 5d. COURT OF SESSION. 209 

Robert Huntbb executed a deed of settlement, conveying certain S8 Jan. IS32. 
heritable subjects to Ann Gumming, his wife, ^ if she should survive ^^"^V^ 
^ him, and' to her disponees whomsoever ; and fidiing the said Ann l^aothen!^^ 

* Gumming by decease before him, or failing her disponing or c6n'> 

* veying the subjects thereby conveyed, in case she did survive 

< him,' to Ann Madndoe, to the extent therein mentioned, in life-* 

rent, for her liferent use only, and to her lawful issue, equally 
among them, &c. in fee. 

Ann Gumming survived her husband, and executed a deed of 
settlement of her whole property, including the subjects condition* 
ally diq>0Bed to Ann Madndoe and her children, in favour of the 
defenders, to the entire exclusion of the former. 

Ann Macindoe and others brought a reduction of Ann Gum* 
ming^s settlement on the head of deathbed ; which having been 
dismissed on a point of form, (see Fac. Coll. 7 Dec. 1826, No. 13.) 
a similar action was afterwards instituted against the same parties 
by Hugh Gogan, as < being now the only surviving child of the de- 
^ ceased Ann Madndoe, wife of Alexander Gogan, and so the ap- 

< parent heir of provision of the deceased Ann Gumming, by virtue 
^ of, and conform to' Robert Hunter's deed of settlement 

In defence against the title to pursue this action it v^raa pleaded — Defenders* 
That as Ann Gumming survived her husband, and disponed the sub- ^^^ 
jects in question, the pursuer's conditional right of succession never 
opened to him or came into existence at all. If Hunter's settle- 
ment had given the property to Ann Gumming, and any persons 
to whom she might convey it, either in liege poustie or on death- 
bed, and failing of such conveyance to the pursuer, there could be 
no doubt that his right as heir of provision would have been effec- 
tually cut off by the disposition which she did execute. But this 
is the true nature of the settlement as it stands. The leading des- 
tination is * to Ann Gumming, if she shall survive me, and to her 

< disponees whomsoever.' The defenders, therefore, as such dis- 
ponees, are called to the succession, to the exclusion of the pur- 
suer, by the act of Hunter himself. They are not merely disponees 
of Ann Gumming — ^they are virtually disponees of Hunter also ; and 
take preferably to the pursuer, not so much by virtue of the deed 
under reduction, as under the express destination of Hunter, the 
original testator, from whom the pursuer pretends to derive his whole 
right and title of action. 

The Lord Ordinary ' repels the said defence ; and in respect 

< that the Lord Ordinary is of opinion, that the defence, as plead- 
' ed, falls under the rules of the act of Sederunt, sect. 36, with re- 

* ference to the 5th section of the act of Parliament^ and the dc- 



210 



DECISIONS OF THE 



No. 53. 



28 Jan. 1632. c 



Cogan V. Lyon 
and Otiiers. 



Dcfeuderii* 
Pleas. 



fenders^ being required, declare that they do not acquiesce in this 

< interlocutor, finds expenses due by the said defenders,' &c. — 

< Note. The Lord Ordinary is clearly of opinion, that the circum* 

< stance of the property being conveyed to Ann Cununing, and her 

< disponees whomsoever, and only £uling her by decease, or fidling 

* her disponing, to the heirs substituted, cannot have the effect of 

< excluding reduction on the head of deathbed, at th^ insttoce of 

< the heir so substituted. That heir is undoubtedly:theheir alioqui 

* succe8surus,-^the heir of provision under the title by which Ann 

* Gumming held the property ; and as it was given to her in fee- 

< simple, the diq)ol^itibn to her and her disponees was no more than 

* what would have been implied in the conveyance to hetself. But 

* though she had full power to dispose of the property by deed, it 
' by no means follows that she, any more than any other proprie- 
' tor in fecHsimple, could exclude the heir of the destination by a 

< deed executed in lecto. This is altogether different from a con- 

< veyance with a reserved power to the granter to alter or dispone 

< etiam in lecto seg^itudinis. As the cases mentioned in the debate 

< do not appear to the Lord Ordinary to apply to this case, it is un- 

< necessary to advert to them/ 



Judgment. The defenders reclaimed^ but the C<mrt unanimously adhered. 



Lonl Ordinaiy, Mtmcn^. For Uie Pursuer, GrmaihiddBy Mai^tmd, CampM 
4* Mack, W. a Agents. For. the Defenders, A. M'NaH F. Clerk. 

S. 



SECOND DIVISION. 



No. LIV. 



28 January 1832. 



MORRISON & COMPANY, and Others, 

affainst 
JAMES TURNBULL and ALEXANDER MORRISON. 



Bankrupt. — SEgUESTRATioN.— 54 Geo. III. c. 137. — Sequestra- 
tion recalled^ in respect part of the requisite amount of debt on tphich 
the application proceeded was a current bill drawn by the bankrupt^ 
and therefore held contingent^ although^ as afterwards appeared^ the 
bankrupt^ along with a third party as cautioner j had become bound 
to the acceptor^ before the bankruptcy^ to retire the hill. 



No. 64. COURT OF SESSION. 211 

The estate of William Torrence was sequestrated on the joint ap- 28 Jan. 1632. 
plication of the bankrupt and Alexander Morrison, founded on two ^"^^V^^ 
bills held by the latter, amounting together to a trifle more than q^^'^" ^ 
the requisite sum of L.100. One of these bills was an acceptance Others v. 
of ihe bankrupt, and the other was a bill, then current, drawn by JJjJ]!^^ 
him upon, and accepted by one Davy, and indorsed to Morrison by 
parties who stood as the first indorsees. 

Thereafter certain other creditors of Torrence applied to the 
Court for a recall of the sequestration, on the ground tiiat tiie latter 
bill was, in regard to the bankrupt, a contingent debt, depending 
on the condition that the acceptor should not retire the bill, which, 
howerer, he did do, and therefore not a claim that entitied the cre- 
ditor to join in the petition for sequestration ; 54 Geo. III. c. 187, 
aect 24; BdFs Cam. ii. 320. 

It was answered by the trustee and Morrison, the petition- 
ing creditor, — !</, That even supposing Davy, the acceptor, had 
been truly the ultimate obligant, as in a question with Torrence, 
the bill was not a contingent debt. In a question with the holder 
of a bill, the whole parties upon it are conjunctiy and severally liable, 
BO that, if the bill is not paid at the instant it £Edls due, the holder 
is not bound to discuss one before another, but may come against 
any one, or all of them at the same time. And as it is admitted, 
that it is competent to use a bill, when current, as a petitioning cre- 
ditor's debt,' tiie holder of the bill is as well entitled to consider the 
drawer, as he is to consider the acceptor, his debtor. 

2dj There was conclusive evidence, that although Torrence's 
name stood as drawer on the bill, he was, at the date of the seques- '. 

tration, the principal debtor, and bound to relieve Davy, just as 
much as if their situation had been reversed on the bill. For it 
appeared that Davy, having addressed a letter to Torrence, stating 
his inability to meet his bill obligations, these parties, along with 
one Webster, as cautioner for Torrence, entered into a written 
agreement, by which Davy made pyer to Torrence his whole goods 
and debts due to him, on consideration of the latter and his surety 
binding themselves to pay all Davy*s creditors in full, according to 
a relative list of debts, which included the bill in question. This 
transaction was accordingly completed, by the goods being imme- 
diately put into Torrence's possession some time previous to his bank- 
ruptey. Tlie bill was retired soon after itbecame due by the acceptor's 
friends, or, as the respondents alleged, privately by one of the peti- 
tioners, in order to allow theitn afterwards to assert, in the present 
application, that the bill had been duly retired by the acceptor him- 
self. It is impossible, therefore, to say, that the claim in regard to 
this bill against Torrence, or his estate, was a contingent claim in 



212 



DECISIONS OF THE 



No. 54. 



Morrison & 
Co. and 
Others v, 
l^imbull and 
Morrison. 



28 Jan. 1632. any sense wluttever. It depended on no contingency whetiier be 
was not to be bound absolutely, and, in all events, to make ulti- 
mate payment of the bill. If he had continued Bolvent, he would 
liave been bound to retire the bill in any question with Davy. If 
it is now in the hands of any third party, thut party will be entitled 
to rank upon Torrence's estate, and the estate will have no claim 
of relief against Davy ; or even if Davy himself has actually reti- 
red the bill, he will be entitled, notwithstanding his apparent cha- 
racter as drawer, to rank for the contents on the estate of Tonreace. 
It is of no importancci in the present question, that the true poei*^ 
lion of the parties did not appear upon the &ce of the document itv 
self. In determining that question, the sole point of inquiry most 
always be, what was the real and actual, not the apparent, situation 
of parties as debtor and creditor ; Buchanan v. Diinlop, 24 Fek 
1827, S. §• D. 



opinion of 
Couru 



Judgment. 



Lord Glenke was of -opinion, that the sequestration fell to be rep- 
ealled, as ultra vires of the Court There could be no doubt that 
the debt, as appearing from the bill itielf, was a contingent debt 
In the case of Thorn v. Black, 10 Dec. 1828, the whole Judges 
held as contingent a debt very similar to the present ; and he did 
not think that, in the present question, itt character was to- be eon* 
sidered as changed from a contingent to a mere future debt, in eon*- 
sequence of the circumstances now founded on by the respondrats^ 
in opposition to the terms of Morrison's affidavit. 

The other Judges concurred. 

The Court accordingly recalled the sequestration* 

For the Petitioners, Sol -Gen, fCockbum,J MaUland, John Culkn, ^V. S. Agent. 

For the Respondentfi, Jameson, Campbdl jr MacdowaUf Agents. T* Clerk. 

s. 



5sr 



SECOND DIVISION. 



No. LV. 



31 January 1832. 



THE DUNDEE AND NEWTYLE RAILWAY CO. 

against 
HALDAN AND Others. 



Statute. — WniT. — A private act of Parliament being obtained to 
co7istitute a joint stock company^ for the purpose of carrying on a 



No. 55- COURT OF SESSION. 21» 



fpeeified und^takUifff and eoniaininff eUam$^ dedatinfff 1^$ Thai 3^ J^o* 1882. 



four^fifSiB qf ihB eHimated expense of the work had ahready been 
embeeribedi under a contract binding the eubeeriberSf their keirsj exe^ Newiyie luiu 
ewtore^ jr^» which contract had been laid befbre the Hauee ofLord^ ^&y ^» v. 
dimig wUk the bill; 2d^ Thai the voihoU of the eetimaied expenee q^J^, 



should be subecribed before ang qf the powers given by the etatiUe 
AaU be put in force; and, 9dy That the^st general meeting of the 
Companjf^ for putting the act into execuOan^ shatt be hdd vgpon a 
certain dag named in the UaMe i-^fimnd, 

Y\nX% Thai Ac benefit of ffw statute was not lost to the subecri* 
bersj in consequence of one ofAe signatures to the original contracts 
presented to JParliamentf and reprired to make up ihefbiur^f\fth$ of 
the esOmated expenee, having been adhibited bg an unasMatisednua^. 
daiarg, and canMequentig not binding an Ae principal parig, the man'' 
datarg being hM in that eaee to hone bound himself > 

Second, ITuU the said principal party was entitled to olgect to 
the contract^ as ineffectual against him, in consequence of the want of 
mandaief natmfhetemdingihe dedaratian in tiu statute reepecting the 
saideontracL And 

Thirdt That the Company was effectually constituted and auiho^ 
rised to act under the statute, hawing held their ^st meeting upon 
the day appovntod by the act, although <&« whok estimated expenee 
of Ae undertaking was not siubseribed till after that day ; no other 
step hamng been taken, or operation commenced, till (xfter the whole 
. sum had been subseribed. 

Ik the year 1825, tome gentlemen connected with the county of 
Forfar circulated a prospectus, and obtained subscriptions, for the 
purpose of carrying a ndlway from Dundee into the vale of Stimth<« 
more. The prospectus contemplated the advantage of carrying the 
railway through Strathmore in various directions, by branch^,^ 
They afterwards applied for an act of Parliament^ and obtained one,- 
eonstitttting a company, far the purpose of making a luilway froaa 
Dundee to Newtyle, at the entrance oi Strathmore, and restrictbg 
the liability of the partners to the amount of their respective sub«' 
scriptions. The estimated expense of the undertaking embraced 
by the statute was L.27,600 ; and, in compliance with a rule re- 
quired by the Honse of Lords before passing any such act, there 
was laid upon their table, along with the bill for the act, a contract, 
purporting to bind subscribers to the amount of L.22,500, being 
more than four-fifths of the estimated expense of the undertaking. 
And, accordingly, it was provided in the statute, section 30, That 
^ whereas the probable expense of making the said railway, accord- 



214 DECISIONS OF THE No. 65* 

31 Jan. \eS2. * ing to an estimate made thereof, will amoant to L.279600 sterling, 
^*<«^V^^ * and four-fifths and upwards of this sum have been already subscri- 
^^^^1^ ^ ^^ ^^' defraying such expenses, under a contract binding the 
way Co. o. ^ Subscribers, their heirs, executors and administrators, for payment 
HjJdan and « ^ ^^ ^^^j^ ^£ nj^ugy g^ subscribed by them respiectively ; be it 

* enacted, that the whole of the said sum of L.27,600 shall be sub- 

< scribed in like manner, before any of the powers giren by this 

* act shall be put in force.' Another clause of the statute, section 
14^ provided, that the first general meeting of the Company should 
be held at Dundee, on the third Friday after the passing of the 
act 

One of the signatures to the contract thus laid before Parliament, 
and mentioned in the thirtieth section of the statute, was that of 

< Will"" Bisset, per mandate, for W" C. Maodonald, Edinburgh, 

* five shares, L.250 ;' without which sum, consequently, there would 
not have been subscriptions to the amount of four-fifths of the esti- 
mate. 

Mr Bissef s sole authority for adhibiting this subscription on the 
part of Mr Macdonald, was a letter from tliat gentleman, request- 
ing him (Mr Bisset) to attend a preliminary meeting of the subscri- 
bers on his behalf, and expressing a wish to become a shareholder 
to the extent of five shares; but this letter was dated more than a 
year before the contract was subscribed, and Mr Macdonald was 
then at home, and no other application appeared to have been made 
to him for his subscription, until after the operations had commen- 
ced under the statute, when circulars were sent to him as a sub- 
scriber; upon receiving which, he wrote to a friend at Dundee, de- 
siring him to call on the secretary, and to request, as a fiivour, that 
he would get his name removed frt>m the list of subscribers* 

The first meeting of the Company, after the statute was obtain-* 
ed, was held at Dundee on the 16th June 1826, being the day ap- 
pointed by the 14th section of the act, but at that time the fall 
amount of L.27,600 had not yet been subscribed. The subscrip- 
tions were, however, speedily completed to that sum, and the 
Company commenced operations. 

At meetings on the 21st July and 6th October 1826, Mr Mil- 
ler, one of the subscribers of the original contract, along with three 
other parties to it, protested against die Company going on, in con- 
sequence of not having had the full sum subscribed previous to the 
meeting of 16dL June ; but they offered to withdraw their opposition, 
provided tiieir names were witiidrawn from the list of subscribers. 
The meetings to which the proposal was made refused to comply 
with it; and the work proceeded and was carried on in terms of the 
statute. 



No- 56. COURT OF SESSIOK. 215 

In 1827, the Company raised an action against the defenders of 31 Jan. 1832. 
the present process, and other subscribers, for calls on their shares, ^""^"V^ 
made in terms of the statute. At the time when this action was ^ewt^ie R^l. 
raised, shares to the reqniute amount of L.27,600 and upwards had way Co. v. 
been apparently taken by the defenders, and others, who had set q^^ ^^ 
down dieir name to the prospectus, and acted as partners by at- 
tending meetings and otherwise ; but no supplementary contract, in 
addition to that which had been laid before Parliament, had been 
subscribed, and consequently there was no contract ex facie bind- 
ing upon the subscribers, their heirs and successors, for the full 
sum of L.27,600, as required by the 80th section of the statute ; 
and none such Was founded on in the summons. Preliminary de- 
fences were consequently gi^en in against the title of the pur- 
suers to insist, in this action, on the ground that the summons did 
not set fortii that the requisites of tiie statute were complied with, 
and that, oohsequentiy, the Company was not entitled to pursue in 
its corporate capacity. The Lord Ordinary, Cringletie, sustained 
this defebce, and dismissed the action by die following interlocutor, 
of date 19 June 1828: < In respect tiiat the act of Parliament li- 
« betted on requires that the sums subscribed to the railroad therein 

< referred to shall be by a contract binding on tiie subscribers, their 

< heirs, executors and administrators, for payment of the money 

< subscribed, and that it is not libelled, nor even alleged, that there 
' is any such contract executed by the defenders, dismisses the ac- 

< tion, and decerns,' &c. 

The pursuers acquiesced in this judgment, and having, in the 
meantime, got a supplementary contract signed by subscribers to 
the amount of 102 shares, or L.5100, (making, along with tiie for- 
mer contract which had been produced in Parliament, the' full sum 
of L.27,600,) tiiey abandoned tiieir former action, and raised the 
present against Dr Maodonald, (tiie heir of Mr Macdonald), Mr 
Miller, and otiier alleged partners of the Company who still refused 
to pay the calls which were made upon them in terms of the sta- 
tute. 

The defenders stood in different situations, and had separate de- 
fences. 

•T 

Istf Di J. C. Macdonald, tiie representative of Mr Maodonatd, Dtfendcn' 
denied tiuit Mr Bisset, who had signed the original contract as his ^^ 
mandatary, had held any power which autiiorised him to do so, and 
that, consequentiy, his allied constituent was not bound by that 
signature, or by the contract. 

2dj Messrs Soots and Haldan, three of the other defenders, had 
not signed either of the contracts, but had subscribed for shares in 



216 



DECISIONS OF THE 



Mo. 55; 



way Co. v» 

Halclanimd 

Others. 



Defenders' 
Pleas. 



3lJao. 1832. the profipectu^, and had aeted as partners ef the Company after it 
was formed ; and the action against them was founded on those act* 
Newtyie Rail- "igs, by which it was libelled that they had made themselves part- 
ners of the Company to the amount of the shares which they had 
taken* 

3df Mr Miller had taken shares himself, and also represented his 
father, who was one of the parties to the original contract. 

All the defenders, besides their separate defences on the £EUSts 
applicable to their respective cases, objecUd to the title of the pur- 
suers under the act of Parliament : Ist, That it waa res judicata 
that the Company could hot pursue, nor exercise any of the other 
powers conferred by the statute, until a valid contract was signed 
by subscribers to the amount of L.27,600, whereas several of the 
signatures to the former contract were adhibited by mandataries 
without sufficient authority from their alleged constituents, and 
some of the subscriptions were not probative according to the requi* 
sitesof the act 1681. 

2d^ That the objection to Mr Macdonald's mandate, if sustained, 
was sufficient to destroy the powers of the Company under the sta-* 
tute^ because his subscription of L.250 was requisite to make up 
the four^fifths of the estimated expense of the work, which was re- 
quired by the dOth section to be subscribed before the statute pas»* 
ed. 

3<4 That the Company Jiad lost the benefit of the statute, be-^ 
cause the whole sum of L.27,600 had not been subscribed before 
the meeting on the 16 June 1826, the day appointed by the act 
for the first meeting ; and that such meeting, and dU the subsequent 
resplttdons, were oonsequendy null, because the statute, at the same 
time that it ordered the first meeting to be held on a particular day, 
also enacted, that n<me of its powers should be exercised until the 
whole sum of L.27,600 was subscribed. 

4iA, Tlat tbe subscribers were not bound, because the Company 
had deviated from the line of the canal originally, proposed, both in 
the prospectus, and in the contract which was subscribed before. iq[H 
plying to Parliament 



Pursuers* 
Fleas. 



The pursuers answered — 1st, That the judgment of Lord Cringle- 
tie, on which the plea of res judicata was founded, had only de- 
clared that the f((»mer action, brought after the defenders had be- 
come partners, but before a regular contract to the full amount oi 
L.27,600 was signed, was premature, at least, that the pursuers 
could not found on the act of Parliament till they produced such 
a contract ; but that objectbn was now removed under the present 



No, 55. COURT OF SESSION. 217 

sumiDQDS) by the supplementary oontract for L.51()0 which was 31 Jan. \SdS. 
produced. ^^^"^"^ 

2d, That neither I^ Macdonaldy nor any of the subseribeni of ^"^yie Bail. 
the origisal contract which had been presented to Parliament, way Co. v. 
could object to the validity of their subsCTiptions to that deed, be- othen! * 

cause the statute itself had declared, sect. 30, that the contract so ; 

produced to JParliament was Inuiding^ upon the parties, their heirs, p"^^^" 
&a» and had thereby prednded die possibility of afterwards stating 
any technical objection to the manner in nUoh the signatures were 
adlubited. 

3d^ That the mandates granted by the parties who had not sub- 
sciibed by mandataries were valid, and offered to be proved, and 
that, ev^ supposing that the authority held by Mr Blsset had not 
been sufficient to warrant his subscription as mandatary for Dr Mae- 
donald, he had in that case bound himself, if not has oonstitnent, so 
that the requisites of the statute were stili compHed with, for there 
was stiU a contract binding on the subscribing parties, their hein), 
&e. to the full amount of L,22,500, although, on the supposition 
that the mandate was insufficient, it would be Mr Bisse^ and not 
Dr Maodonald, who would be bound. 

Adbf That it was sufficient to satisfy the provisions of the slatdt^, 
that the first meeting of subscribers had been held on the day ap- 
pointed, on the third Friday after the passing of the act, and that 
the whole sum of L.S7,600 had been subscribed before any opera- 
tioD had been b^^, any call upon the subscribers made, or any 
other acting had taken place except holding this meeting, which 
was, in effect, only iq[)pointed for the purpose of taking measures to 
raise the necessary sabseriptions, and to carry the act into executidif. 

&ihf That the statute was binding on the subscribers of the con- 
tract, notwithstanding its variation from like prospectus originalljr 
circulated ; and that the Company had not subsequently devbted 
fiNMn the plan laid down in the statute, further than diey were em- 
powered, if necessary, to do by the act 

The Lord Ordinary took the acti<m to report on cases, and add- 
ed to his interlocutor the following note : 

* N0te. — The pleadings embrace various points on the title a& 

< well as the merits, and, with one exception, the Lord Ordinary ik 
* rather inclined to an opinion in favour of the pursuers^ 1^, It is 
^ set forth, by way of recital, in the SOth section 6{ the statute, that 

< a certain sum has been subscribed, under a eontraet binding the 

< subscribers, their heirs, &c. ; and although he cannot adopt the 

< argument of the pursuers, that this is equivalent to an enactment,' 
^ that the contract produced to the Legislature was actually binding 



218 



DECISIONS OF THE 



No. S&. 



31 Jan. 1832. 



Dundee and 
Newtyle Rail- 
way Co. v» 
Haldan and 
Ocben. 



on those who were apparently parties to it, he thinks that the pni- 
duction of such contract to the Legislature, for the purpose of be- 
ing made the ground of such a statute, was such a homologation 
of, or rei intenrentus on the contract so produced, as to bar all 
merely formal objections to its execution. 
' 2dfyy He thinks, that the objection to the signatures by manda- 
tary is effectually taken off by the averment and offer of proof that 
mandates did exist; and that, at all erents, the parties have sanc- 
tioned the acts of the mandataries, by admitting their liability, and 
paying their calls, as members of the copartnery. 

< Sdfyj Considering that the 80th section clearly contemplated the 
passing of the act before the whole sum of L.27,600 should be 
subscribed, and that the 40th section provided specially, that the 
first < general meeting of the said Company for putting this act 

into execution shall be held at Dundee on the third Friday next 
after the passing of this act,' he does not think that the whole 
act necessarily fell from the circumstance of the full amount not 
being subscribed before the day appointed for the fiist general 
meetijig, and that the general meeting held that day was entirely 
unauthorised. Considerable difficulty on this point certainly arises 
from the mode in which the different clauses jare expressed, but, 
upon the whole, he thinks that, in sound construction, that meet- 
ing and subsequent meetings were i^uthorised, although the powers 
of the Company for actually commencing operations carrying the 
measure into execution were suspended until the full sum was 
subscribed. 

< 4£A/y, There seems no ground for the defence on the merits, that 
the defenders are free, because a clause was inserted in the statute 
contrary to the circulated, prospectus, and to the bill as originally 
proposed ; by which clause, it is said, the; railway was necessarily 
prevented from ever being carried further than Newtyle. It is 
dear, in the first place, that the parties subscribers were bound to 
attend to their own interefsts, in regard ta the terms of the statute 
actually adopted by the Leg^lature. But, besides, the bill circu- 
lated and approved of bore to be a bill for making a railway only 
to Newtyle ; and consequentiy, the insertion of a clause prevent- 
ing it from being carried further, cannot be viewed as any change 
in the essentiab of the measure proposed. 

* 5l&Zy, Although the irregularities alleged to be committed by 
those who took an active charge, by commencing operations be- 
fore the statute was in force, and by deviating, in some particu- 
lars, from the line pointed out in the statute, may raise very im- 
portant questions regarding the application of the Company's fiinds, 
and the personal liabilities of those by whom such irregularities 



No. 55. 



COURT OF SESSION. 



219 



were committed, it does not appear that they afford a good defence 31 J*n. 1832* 
against the present action. This is an action for caUs ; and it is 
expressly provided by the statu te, that in an action brought * by i^ewtTklaail- 
reason of any call or calls made by virtue of the act, it shall be way Co. v. 
sufficient to declare and allege, that the defendant or defendants Q^t^en, 
are proprietor or proprietors of so many shares in the said under- 
taking, is or are indebted to the said Company in such sum or 
sums of money as the call or calls,' &c. ; and that it should only 
be necessary to prove, that the < defendant or defendants, at the 
time of mkking such caU or calls, was or were a proprietor or pro- 
prietors of such. share or shares in the said undertaking, and that 
such call' or calls was or were in fact made, and that such notice 
thereof was given as is directed by this act' Indeed, indepen- 
dendy of such express provision, the irrelevancy of such a defence , 

was lately determined by the Court in the case of the Caledonian 
Iron Company against Clyne. 

^ There is, however, one point upon which the Lord Ordinary 
feels great difficulty indeed, and that is the objection to the titie 
founded on the signature of the contract by mandate for the late 
Mr Macdonald. This signature is objected to by the represen- 
tative of Mr Macdonald, on the ground that the mandatary had 
no authority ; and as it is res judicata of the judgment formerly 
pronounced by Lord Cringletie, now final, that to support the title 
of the pursuers as a corporate body, the act of Parliament re- 
quires that the specified sum shall be subscribed < by a contract 
< binding the subscribers, their heirs, executors and administrators ;* 
and as it is admitted that the subscription by Mr Macdonald 
to the contract is necessary to complete the statutory sum which 
has yet been subscribed by formal contract, the titie of the pur- 
suers truly comes to depend upon the validity of that subscrip- 
tion. 

< Now, the mandate founded on is a letter of the 28tii of October 
1825, addressed by Mr Macdonald to Mr Biaset, which certainly 
seems to authorise Mr Bisset to attend and act for him at a meet- 
ing at Dundee, giving as the reason, that he is prevented firom at* 
tending that meeting himself; and it may be fairly cons.trued as aur 
thdrisirig Mr Bisset to subscribe for five shares at that meeting* 
It does not se/em yet to be ascertained, whether Mr Bisset did at- 
tend and subscribe at that meeting or not ; but the bet is undoubt- 
ed, that there was no contract subscribed at that meeting ; that 
the contract was not prepared for several months afterwards, and 
that it was not signed by Mr Bisset, as mandatary for Mr Mac* 
donald, till the 14th Aj^ 1826, Mr Macdonald being at home» 
and* no appEcatira being made to him personally for bis sigoatore.. 



220 



DECISIONS OF THE 



No. 55. 



31 Jan. ia3S« 



Dundee and i 
Kewtyle Rail- 
way Co. r. 
Haldan and 
Others* 



Opinion of 
Court. 



N0W9 the imprefision of the Lord Ordinaiy is, that' this signatnife 
was unauthoriBedt as he does not consider that an authority to at- 
tend a meeting, and subscribe a certain ntimber of shores, giireh 
on the ground that the party is prevented from attending that 
meeting, does form a mandate to subscribe a regular contract df 
copartnery six months afterwards, the party himself being on th^ 
spot, and neither the terms nor even the existence of such a con- 
tract ever having been communicated to him* 
< The Lord Ordinary has thought it right, however, to order 
cases, and to afford the pursuers an opportunity of obtaining the 
opinion of the Coiurt, before any interlocutor be pronounced on ^ 
point so deeply and extensively affecting dieir rights.' 



' The Cata^f on advising the cases, were of opinion, that the objec^- 
.tion to the title of the pursuers was not well founded, but that the 
special defence for Dr Macdonald was effectual against the claim 
^nade upon him. 

; Lord Ohnike.'^With respect to the defence against the title to 
liursue, famided on the alleged objection to Mr Macdonald's sub^ 
•seription) I understand the difficulty to lie in this, that the statute ' 
requires that the fuU sum of L.27,600 must be subscribed before 
the Company can act upon it, or avail themselves of its provisions, 
and it is said^ that without this subscription you had neither that 
sum nor the foil sum of L.22,500 said in the statute to have been 
subscribed at the time when the act was passed. Now, it may hap- 
jpen that various defences may be competent to several of ^e in- 
dividuals who are ex fade parties to the contract ; but that is a very 
different thing from a defence against the title to pursue, founded 
<in the allegation that the contracts do not substantially exist The 
only question at present before us is as to the title to pursue, which 
depends upon whether contracts to the amount of L.27,600 binding 
upon some parties, no matter w&om, have been really entered into. 
K0W9 though 1 doubt whether the proposition of the pursuer, tliat 
a mandatary who signs as such without a sufficient warrant be-> 
eomes himself a party to the contract in place of the constituent, in 
case the latter is not bound, can be maintained in every case ; (be- 
cause, although it is very true that a person representing himself as 
a mandatary, and taking upon himself to bind another party, comes 
thereby under an obligation to produce his constituent, and will be 
liable in damages if he does not do so, still his obligation would not 
be as a partner himself to the contract, but under a separate action 
of a different nature) ; yet when I look at the terms in which both 
the first and second contract are subscribed in this particular case, 
and see tkit autfiy of the subscriptions^ and this of Mr Bisset for 



No. 5fl. COURT OF SESSION. Ml 

Mr Maodonald amongst the rest, are adhibited oetentibly by man* 31 Jm. 183t. 
dataries who ostensibly bind their constituents, but at the same ^^^r^^^ 
time expressly bind theitaselTes, their hebs and successors, aeoord- Newt^ Rail- 
ing to the declaration of the act of Parliament, I have no doubt way Co. v. 
that the bond, in such circumstances, contains a sufficient obligation q^^J^ ^° 

upon the subscribers for the fiill sum« It may be a question, to be 7-; 

sure, whether Mr Bisset or Mr Maodonald is the proper party Ua- oourt?'^ ^ 

Ue for the fire shares taken by him ; but it is sufficient to iw^iti tftiif 

the title to pursue, that the bond is obligatory either on one or other 

of them. It may be said, that Bisset ought to have been called 

as a party in this action ; and his not being so may, to be sure, be 

a very good reason for not finding him liable at present ; but that is 

a very different tiling from dismissing the action against the other 

parties, on the ground that the pursuers have no title to insist in it 

- Lord Cringhtie concurred. 

Lord MeetdawbanA. — I am of the same (pinion ; and I shall only 
say &rther, that I do not think the terms of the act of Fbriiament 
are se precise as the parties and your Lordships seem to have as** 
sumedL It requires, no doubt, that shares to the amount of 
L»27,600 shall be subscribed before the act comes into operation ; 
but I do not see that it requires that the names should be adhibited 
to a regular contract It appears to me to be a sufficient compliance 
with the requisites of the act, if there were subscribers to that amount 
actually bound as partners, no matter whether by subscribtfig a re- 
gular contract, or by taking shares in a prospectus, and afterwards 
acting as partners. I do not, however, wish to rest my opinion on 
this, as I also concur entirely in the views taken by Lord Glenlee. 
The Lord Justice-Clerk. — I am also of the same opinion as to the 
objection to the title founded on Bisset's signature for Mr Macdo- 
nald. Then, as to the second general objection to the title, found- 
ed on the first meeting under the statute having been held on the 
day appointed by the act, but before a contract for the additional 
L.5100, required to make up the full sum of L.27,600, had been 
subscribed, I think, in the circumstances of the case, that there is 
no ground for this objection, seeing that the meeting was neces- 
sarily held on a particular day appointed by the act, but that no 
calls for money were made upon the subscribers, nor any step taken 
to carry on the operations of the Company till the whole subscrip- 
tion was completed. 

The other Judges concurred in this view as to the second general 
objection to the title of the Company to pursue. 

On the merits of Dr Macdonald's defence, the Cottrt was unani- 
mously of opinion, that the mandate granted by the late Mr Mac- 
donald to Mr Bisset had not been properly acted upon, and did not 

VOL. VII. Q 



?2t DECISIONS OF THE No. 55: 

31 Jan. 183^, authorise his subscription as for Mr Macdonald ; though, as it was 
-^Y^^ sufficient to bind himself, either to produce a proper mandate, so a» 

Newtyie^RaiU ^ ^make the contract binding on Mr Macdonald's heir, or to make 

way Co. V. huos^lf liable to the other parties to the contract, it appeared a suf-. 

Othm *" ficient subscription, in terms of the statute, to sustain the action at 
the instance of the Company against the other parties. 

The following interlocutor was pronounced : ^ The Lords having,, 
on report of Lord Fullerton, Ordinary, advised this process, and 
heard counsel, repel the several jobjections pleaded by the defend-r 
ers against the title of the pursuers to maintain the present ac* 
tion ; in respect that no appearance is made for John Frands 
Plaine, decern against him in terms of the conclusions of the li* 
bel ; sustain the special defences pleaded by Dr John Caddel 
Macdonald, and assoilzie him from the conclusions of the libel, bu^ 
find no expenses due, reserving to him his claim for such against 
Mr jBidset, refenred to in the pleadings, and to Mr Bisset his de- 
fence as accords ; repel the several defences pleaded for all the 
Qther defenders cited, decern iagainst them respectively in terms 
of the conclusions of the libel, and find them liable in expenses of 
process, subject to modification; allow an account to be given 
in, and thereafter taxed and reported on, in common form.' 

XiOrd Ordinary, JWflierfoii. Act Skene, AUton and Brown. Alt. Murray, Jtaneton^ 
Cowan, and W. BelL Pat Teimani, and J. IL Stoddart, John Donaldion and 
W. WadtkU, Agents. T. Clerk. 

U. 



FIRST DIVISION. 

No. LVL 1 February 1832. 

JOHN STEPHEN & JAMES DUIRS 

against 
JAMES PIRIE. 

Proof.^-Writ. — /ft a seUUment of accounts between near rela-- 
tionSf the creditor having marked a memorandum of advances in 
cash and farm'Stoching made by him as * settled^' and delivered 
it to the debtor^ his nq^hew^ whUe there toas found in his reposi- 
torieSf after his deaths an < achnowledgment^ qf the same daie^fbr 
the amount qfihe advances^ in his handwrUing^ but bearing the sig-^ 
nature of the nephew^ — held^ in an action against the latter at the 



No. 66. COURT OF SESSION. 22^ 

instance of the rqnreaentatites qf the deceased, /bunded onthe^ac- ^ F«b. 1832. 
^ knmole^fymentf' that alihough not stricdy probative according to ^^^V^^ 
lawy ffet being granted inter rusticosj and as in re mercatoria bettaeefi Duin^v/pinV 
near relations, it afforded sufficient evidence of the debt, and that the 
defender teas liable for the money, and interest from its date^ the 
advances being admitted, and payment not being alleged, thedebtor 
merely averring that they had been intended as donations. 

In the year 1616, the respondent, James Pirie, became tenant of 
the &rm of the Mains of Barras, in the county of Kincardine^ 
From that period down to the year 1819 various articles of farm- 
stocking, and also sums of money, were furnished to him by hii 
unde, the late John Pirie, and in February 1819 there appeared to 
have. been a settlement between the parties. On the one hand, a 
memorandum was furnished by John of the articles said to be due by 
James to him, and amoimting to L.805 : 17 ; 7^, and on the back 
of this memorandum there was a marking by John, dated 19 Feb-? 
ruary 1819, f Settled the within account,' and signed by him; 
and this was delivered to James. On the other hand, there was, 
of the same date, the following < Acknowledgment,' in the hand- 
siting of John, but bearing the signature of James ; 

« Little Caimbeg, 18 Feb. 1819. 
* James Pirie to John Pirie, Dr. To sundry articles of farm- 

* stocking and money, - . - L.285 17 7i* 

« Little Caimbeg, 19 Feb. 1819. 
< I acnoleage the above account to you, due by me, for which 
( I shall grant you my bill, or pay when you call for it ; and am 

* yours truly, (Signed) J«. Pirie. 

' To John Pirie, Farmer, Little Cartibeg! 

No jhrther transactions appear to have passed betweeiFthe par- 
ties during the lifetime of John« After his death, in 1 827, at a meet- 
ing of the parties interested, a minute was made up of the various 
vouchers of debt found in the repositories of the deceased, among 
which the acknowledgment above mentioned was included. This 
minute was signed by the defender, James Pirie, as one of his un- 
cle's executors, as well as by the other parties present. 

Thereafter the advocators, John Stephen and William Thompson, 
as executors qua nearest of kin to the late John Pirie, brought an 
action before the Sheriff of Kincardineshirie. against the defender^ 
for payment of the sum of L.285 : 17 : 1\, contained in the above 
acknowledgment in 1819, with interest from the date thereof, and 
expenses^ 

82 



224 



DECISIONS OF THE 



No. 56. 



Sttphen and 
Duirs V. Pirie* 

Defender's 
Pleas. 



! Feb. 1832. Ill defetice^^The aclvtmcefl were admitt^ ; but it was maintained 
that they had been intended as donations by John Pine to his ne- 
phew^ the defender, and that to prevent aU questions relative to 
these advances, the said John Pirie had lUarlced the account which 
he had kept of them as < Settled/ and gave it to his nephew, so that 
no action could now be brought against him for repayment The 
admission of the advances must be taken with die qualification ad« 
jected to it — that they were intended as donations, and bad been 
discharged accordingly ; Grierson v. Thompson, 14 Jan. 1830. The 
alleged ^ acknowledgment by James Pirie not being hok>gniph, and 
being defective in other forms required by law, was improbative, and 
could not be founded on agaiust him ; Alexander t;. Alexander, 26 
Feb. 1830 ; and no supposed admission on the part of the defender^ 
as to his subscription, (which, however, he did not recollect,) could 
supply the informalities of that writing ; Tait on Evid. p» 120« 
Neither could his signing the list of vouchers, at opening the re- 
positories of John Pirie, have any effect upon the question ; for 
even if he had been aware of its insertion among other docu- 
ments, that was not the proper time for explaining its nature. 
The circumstance of John Pirie not having demanded payment, 
nor a bill in conformity with the document, affords additional evi- 
dence of the debt having been discharged. 



Punoers' 
Pleas. 



It was answered — That the advances by John Pirie being ad- 
mitted, it was incumbent on the defender to prove a discharge, which 
he had not done, the marking on the back of the memorandum af- 
fording no evidence of the extinction of the debt, more particularly 
when taken In connexion with the < acknowledgment' founded on 
and produced by the pursuers. The account and memorandum 
produced by the defender, bearing the same date with the doquet 
libelled on, tend materially to support that writing, as specifying 
the mode in whi<^ the account against the defender had been settled 
by the parties. The acknowledgment by James Pirie being a mere 
doquet of accounts, passing inter nisticos, and between near relations, 
and in re mercatoria, (according to the proper construction of the 
words,) is sufficiently formal and probative to establish the existence 
of the debt i^ainst the defender, the constitution of which he has 
admitted, and of the extinction of which he has produced no legal 
evidence ; Maclurg v. £. of Dalhonsie, 2 Jan. 1678^ M. 16,970 ; 
Leslie v. Millers in Rosemarkie, 27 Jan. 1714, M. 16,978; Stew- 
art V. Agnew, 17 Dec. 1680, M. 12,624,- Currier v. Haliburton^ 
March 1683, M. 12,625 ; Tait on Evidence^ p. 114. 

Besides, the insertion of the document in question in the inven- 
tory of the vouchers of debts due to the deceased, taken at the 



No. 66. COURT OF SESSION. 885 

cpeniag of lie repositiNriesi aod certified by the defender him$elf» i Feb. 183«. 
by his subscription of the relatiye minute, a^urly amounts to an ad* Wy^/ 
mission on his part of the subsistence of the debt at that date. d^^^^ 

The Sheriff found, ^ That the irregular, unauthenticated and un- 
^ stamped writing (founded on) is no sufficient evidence of a debt 

* due by the defender to the late John Pirie, and this the more es- 

* pecialiy, as there is no evidence that John Pirie (although he 

< lived more than ten years after the date of said writing,) ever 

< demanded payment of the supposed debt, or a bill for the amount ; 

* and if a bill had even been granted, instead of the writing referred 

* tOf such bill would have been prescribed long before this time : 
^ < Therefore assoilzied the defender, and decerned ; but found no ex- 

^ penses due/ 

Both parties having brought advocations, the pursuer on the me- 
rits, and tiie defenders on the ground of expenses being refused, the 
Lord Ordinary repelled the reasons of both advocations, and remit- 
ted the t»nise to ihe Sheriff simpliciter, found neither party enti- 
ded to expenses in this Court, and decerned. 

But the Court, after hearing counsel for the parties on mutual Judgment. 
reelaiming notes, * alter the interlocutor reclaimed against, advocate 

* the cause, and deeern against the defender for payment of the 

* sum of L.285 : 17 : 7^ sterling, with interest thereof from the 
^ 19th day of February 1819 ; find the defender liable in the pur- 

* suers' expenses in this Court and in the inferior court,* &o. 

Jj>rd Balgray said that he had formed a very clear opinion on q^\j^\q^ of 
die p<nnt liOoking to the nature of the traosaetion, which seemed Court. 
to be a setdement ^ accounts between near relations living in the 
country, and truly in re mereatoria, his Lordship was of opinion 
that the doquet, though not strictiy forKoal and probative, affcnrded 
suffid^it legal evidence of the existence of the debt ; and this was 
confirmed by the circumstance of the marking on the back <tf the 
memoraiidum, es being < settled,' and the doquet or acknowledg- 
ment in question being of the same date, which shewed the mean- 
ing of the transaction, viz. that the one party, the creditor, mark- 
ed the account as * settied,' upon the other, the debtor, granting an 

< ai^owledg^ent' for the sum finally agreed upon as the amount 
of what was due, the trifling difference between the soms rather con- 
firming the nature of the settiement The Court had frequentiy been 
in tibe habit of sustaining documents of this nature in similar cir- 
cumstances, especially where payment of the debt was not alleged ; 
and indeed it would be difficult or nearly impossible to carry on the 



526 DECISIONS OF THE No. 50. 

) li'eb. 1832. ordinary transactiont of life between parties in sach situations^ if 
^<^V^^ writings of this nature were not to be sustained, 
^hen and rJ^^^ ^^^^ Judges concurred. 

Duin p. Pine. ^ 

IsOfd Neuflon, Ordinary. Act •/ajRCton, Pyper. G, HeggiCf W. S. Agent. 

Alt Rutherfurd. Deimulon {• Chriitian, W. S. Agents. 

c. 



FIRST DIVISION. 
No. LVII. 2 February 1832. 

PETER SCOTT 

DAVID FISHER. 

Title to pursue. — A party possessing upon a precept of dare con^ 
Stat and charter from the superior^ but not infefi^ foimd not entitled to 
prosecute an action of removing, 

Fisher having entered heir to his paternal uncle by precept of 
clare constat and charter of confirmation, but without being infeft, 
brought an action before the Sheriff-court, upon the act of Sederunt 
1756, against Scott, tenant of the mill of Glendevan, (under a mis- 
sive of lease from the pursuer's uncle,) setting forth, that the de- 
fender was indebted three years' rent ; and concluding, that it should 
be found and declared that the tack was irritated in consequence 
of the rent being more than two years in arrear ; and also conclu- 
ding for payment of the rent in arrear, and that the defender should 
be removed, and be subjected in violent profits and expenses. 

While the defender, on the merits, denied that there were two 
years' rent in arrear, and pleaded that no irritancy was incurred, 
he stated as a preliminary defence, that the pursuer had no title to 
insist in this action, not being infefl ; and, farther, that the action, 
as laid on the act of Sederunt, was incompetent in reference to its 
conclusions. 

The Sheriff found that the defender had irritated the tack by al- 
lowing two years' rent to be in arrear, and decerned against him in 
the removing. 

The defender presented a bill of suspension of this decree, which 
was passed, after which the defender obtained himself infeft on the 
charter of confirmation. 

The Lord Ordinary, on passing the bill, stated in a note, * Though 



1 



No. 57- COURT OF SESSION. 1J27 



.< the {M>iBt attempted to be maiBtained in the answers, that an ap- ^ ^^- ^832. 

* parent heir generally has, by mere apparency, a title to pursue a -J^^^^'t 

* removing, appears to the Lord Ordinary to be obntrary to all au- 

< thority, he is inclined to think, that in this case the title wa^ 

< sufficient, on the ground that, by the entry by pjfecept of clare con*- 
' Stat, and the charter of confirmation obtained, the pursuer was in 

< a situation to raise the action, completing his tide by infeftment 

* before decree.' 

The suqpender pUaded — That the diarger not being infeft at the Suipender*! 
time he raised the action or obtained decree, was not in titulo to 
prosecute a. removing. This was only competent to the heritor 
^ or setter of the lands. The charger was not heritable proprietor^ 

but merely held a personal right to the lands, under a precept and 
charter from the superior as heir of his uncle, but no infeftment 
bad been taken by the charger ; neither was he the setter of the 
tack, the tack having been granted by his uncle, and the pursuer 
did not found on that character in his summons.^ 

Answered for the charger — The proceedings in the inferior court Charger's 
were all regular. It was not necessary that the charger should be ^°*^^'^ 
infeft before raising this process. It was sufficient if he was infeft 
before extracting tiie decree, his titie of apparency being clear un-^ 
der his precept of clare constat and charter from the superior. The 
suspension was raised before the decree was extracted. This was 
not'a summons concluding merely for removing on the act of Se* 
derunt 1756 ; it contained various other conclusions, in regard to 
which a titie of apparency was quite sufficient The suspender, 
in this case, had acknowledged the charger as landlord, and had 
brought an action of damages against him as landlord, for not im-*- 
plementing his obligations in the lease. He could not, therefore^ 
object to the titie of the charger. 

The Lord Ordinary pronounced the following interlocutor: — 

< The Lord Ordinary having considered the closed record, and 

* heard parties' procurators thereon, in respect the charger took 

< decree in the action of removing before being infeft, imd did not 
^ take infeftment till after a bill of suspension of the decree had 

< been passed, sustains the objection to his titie, suspends the let* 

* iers simpliciter, and decerns : Finds the suspender entitied to ex-v 
^ penses, both in this suspension and in the inferior court process, 

* but subject to modification, and remits the accounts when lodged 

* to the Auditor, to tax and to report.' His Lordship added the fol- 
lowing note : < The parties, in the debate before the Lord Ordinary, 



!226 



DECISIONS OF THE 



No. 67. 



H Feb. 1838. 
Scott V. Fisher* 



confined themselves, in a great measure, to the question of tide, 
and it is upon this point solely thfit die cause has been decided. 
The Lord Ordinary is aware, that the strict rules of the ancient 
law, as to the necessity of infeftment, have been of late years re- 
hixed to a certain extent, but he knows of no case where it has 
been found competent to support a decree of removing by taking 
infeftment subsequently. In the two latest cases, 2 March 1808, 
Campbell v. M^Kellar, and 3 March 1810, Johnston v. Martin, 
the Court held, that infeftment was not necessary at the time of 
executing a summons of removing, and that it was enough that it 
was taken before calling the summons. In both cases, as appears 
from the reports, the Court proceeded on the ground, that by the 
act of Sederunt 1756, the calling of the summons is made equi- 
valent to an execution of warning, and that it is sufficient, there- 
fore, if the pursuer be infeft before this step. 

< There is, no doubt, in a note to the report of the former of 
these cases, mention made of an unreported one, 10 February 
1802, Brown v. Lang, where it is said infeftment was held suffi- 
cient, though taken after the cause had been some time in Court 
But the authority of this case, which seems not to have been con- 
sidered at the time as worth reporting, cannot be great, more 
especially as it appears inconsistent with the ground assigned as 
the ratio of the later decisions above noticed. At any rate, it can- 
not support the present removing, where infeftment was taken, 
not only after the calling of the sununons, but after decree was 
taken, and even after its validity had been brought under consi- 
deration of this Court, by the passing of a bill of suspension. 

< The Lord Ordinary has found expenses due, subject to modi- 
fication, because a gpreat part of the expenses has been occasioned 
by otiier pleas of the suspender, most of which appear very ques- 
tionable.' 



Judgment 

Opinion of 
Court. 



The diarger reclaimed ; but the Court unanimously adhered. 

Lord Balgray. — The pursuer brought this action as heritable 
proprietor, and he concludes for removal of the tenant on account of 
two years* rent being in arrear. When a tenant is called upon to 
give up possession, he is entitled to see that the person so calling up- 
on him has a legal title. There is no lawftd title but infeftment 
I know of no instance where a decree of removing has been pro-* 
nounced before the party .prosecuting it has produced an infeft- 
ment. I think the decree in this case, before infeftment was ta- 
ken, is null and void. 

The other Judges concurred, resting their opinions on the gene- 



No. 67. COURT OF SESSION. 226 

ral ground, that there could be no decree of removing founded ^ P^* 1839. 
solely on a personal rie^ht to the lands. 

LardNtwiont Ordinary. For Charger, Soln^Oen, (CoMwm.) JEne^ 

M*B^an, W. S. Agent. For Suspender, Moir. Wotherspoon ff Mack, 

W. & Agents. S. Clerk. 

T. 



FIRST DIVISION. 
No. LVIII. 4 February 1832. 

ROBERT WEIR 

GAVIN GLENNIE, and J. & W. M«ROBBIE. 

Servitude. — By a joint agreement 0f proprietors^ a dam^dihe had 
been buUt^ and a canal or water'course cut Arouyh their respective 
properties^ Ae parties being at Ae joint expense of making and up^ 
holding the damnKke, and each party being at the expense of ma* 
king and repairing the canal Arough his own properhf^-^Jbundj that 
att Ae parties concerned^ or those properly attthorised by them^hada 
right to go along the banks of the eanalj for the purpose ofexamimng 
its condition^ and repairing it and the dam-dihe if necessary, and 
regulating the sktiee, ciOiough no right of road or passage along the 
caned was stipulated in the agreement. 

Weir was proprietor of the lands of Tamaree, on the banks of the 
Carron, on which there was a xnilL He was also tenant of the pa- 
per-mill of Stoneywood, a little farther down the river Carron, which 
belonged in property to Mr Morehead. On the intervening lands 
between Tamaree and Stoneywood there were also mills, the pro- 
perty of J. and W. M'Robbie, and of which Glennie was the te- 
nant. 

In 1802, the then proprietors of these several lands entered into 
an agreement to erect a dam-dike across the river Carron, < above 

< Tamaree bum, from the lands of the said William Morehead, on 

* the north side of the river, to the lands of the said John Reid, 

* (Weir's author,) on the south side thereof; and tiiat a cut or ca- 

< nal, five feet wide and two feet deep, shall be made from the said 

< dam-dike through the lands of the said parties, on the south side 

* of the river Carron, to the present mill-dam of the present mill of 

* Stoneywood.' It was then stipulated, that each party should be 



230 DECISIONS OF THE No. 6a 

4 Feb. 18^ nt the expense of making the cut or canal through his own lands, 

* and the expense of maintaining and repairing the said dam-dike 
nic, &c! * ^ shall be defrayed by the said three parties equally in all time co- 

^ ming,' and each party was to uphold the canal in so iJEir as it 
passed through his own lands. 

Napier and Reid, (the proprietors of the lands farthest up the 
river,) were further taken bound not to * suffer or allow any ashes, 

< rubbish or other nuisances to be thrown into the said canal, which 

* may be hurtful to the washing of paper or other operations in the 

* said paper-mill of Stoneywood. Neither shall the said Archibald 

< Napier nor John Reid, at any time, or for any space, be at liberty 

< to interrupt the course of the water in the said canal, so as to stop 

< or injure the operations in the said paper-mill.' 

The dam-dike was accordii^ly erected, and the canal cut, which 
was connected with the dam by a sluice on the lands of Tamaree, 
by which the quantity of water admitted into the canal was regu- 
lated. 

Weir presented a petition to the Sheriff of Stirling* against 
Olennie, narrating the above agreement, and complaining that 
Glennie had, >by himself and others in his service, trespassed on his 
lands of Tamaree, pretending to have an unlimited right to the wa- 
ter in the dam, and to raise the dam-sluice at pleasure, and had 
accordingly done so, by which the canal was overflowed, and the 
banks injured. And £etfther complaining, that Glennie had been 
accustomed to use a rood along the canal, whidi was the exclusive 
property of the petitioner, in virtue of a feu-contract, wherein he 
was taken bound to be at the sole expense of maintaining and in- 
closing the said road for his own use. The petitioner prayed the 
Sheriff to find, that Glennie had no right to interfere with the sluice 
of the dam, (of which the petitioner always kept the key,) or to 
have a greater supply of water in the canal than 2^ feet ; and to 
interdict him from interfering with the sluice, and from treq)a8sing 
on the lands of Tamaree* 

Dereoden' In defence it was pleaded for J. and W. M^Robbie, and for 

Fleaa. Glcnnic as their tenant, that all the parties through whose lands 

the canal was cut had an interest in the dam-dike, it being upheld 
and maintained at their joint expense, and, therefore, they had a 
right to examine it, and see that it was repaired when necessary. 
The joint interest which all the parties had to the water of the ca- 
nal for their respective mills entitled them to go along the canal, 
for the purpose of seeing if there was any interruption to the flow of 
the water, and removing any obstruction where it existed, and this 
)iad been the constant practice since the dam was formed and the 



No. 58. COURT OF SESSION. 231 

canal cut. That the injury done to the banks of the canal was not 4 Fef>. f 83^ 
owing to the quantity of water admitted by Glennie, but to the ^"^V^ 
run of water being obstructed by a quantity of stones which had q}^^^ 
fidlen into the canal. 

The Sheriff allowed a proof, and then pronounced the following 
interlocutor : ^ Having considered the proofs of parties, and whole 
process, finds, from the evidence adduced, that the occupiers of 
all the mills supplied with water by the cut or canal in question 
have been in the practice, without interruption, of raising and 
lowering the sluice at the dam-^ke, as occasion required ; and 
finds, that, as no arrangement was made by the parties to the 
agreement founded on in the complaint respecting the reg^ulating 
of the sluice, each was entitled to exercise his right in this man- 
ner : Finds it proved, that, at the period mentioned in the sixth 
article of the pursuer's condescendence, some of the defenders^ 
servants- passed into the pursuer's lands, and towards the place 
where the water burst through the bank of the canal : Finds it 
not proved, that, on the day this occurred, the defender or any of 
his servants had raised the sluice : Finds it sufficiently instruct- 
ed, that, at the time, . there was no greater quantity of water in 
the canal than was necessary for the defender's mill, and that tb^ 
injury occasioned to the canal was not so much owing to the quan- 
tity of water in it, as to the insufficiency of the bank at the place 
it gave way, and to the extraordinary pressure upon it, caused by 
the water being impeded in its free course by the quantity of 
stones which fell into the canal a little below the spot : Finds it 
sufficiently proved, that there has always been an open communi- 
cation to the dam-dike and sluice from the lower mills, by which 
the proprietors or occupiers thereof have been in use to proceed . 
to the dam-dike, to repair the same, and clear away sand which 
sometimes accumulates at the sluice ; and that they have xmei 
this coAnnunication at other times, when deemed necessary ; and 
that it is imposnble for the defender and his servants to go along 
the canal to the dam-dike or sluice, for the purpose of repairing 
the same or otherwise, without passing through the pursuer's lands 
by the road in dispute, which is the only communication from the 
lower miUs thereto : On the whole, finds that the pursuer has 
£Buled to prove that the defender has acted illegally or unwarrant- 
ably ; and, therefore, assoilzies him from the conclusions of the 
complaint, and decerns.' 

Weir then advocated, and the Lord Ordinary < Finds that it was 

not con^tent to the Sheriff to determine, from the terms of the 

contract alone, and without any reference to the possession, that the 

advocator's property is burdened with the servitude of a road ; apd 

^ that any judgment in the present cause can only be of a possessory 



282 



DECISIONS OF THE 



No. sa 



^Mt. )83& 



Wairv. Glen, 
nie, &c« 



nature : Finds it not proved that the ^ocujiiers of the lower miUf 
had possessed a road or access to the dam*head, or been in use to 
regulate the sluice there, for seven years previous to the com- 
mencement of this action ; and that, on the contrary, it is jamveA 
that any possession by tjiem does not reach back for nearly so 
long a period : Finds, that as the respondents have no express 
grant of servitude, or decree of dechirator to ttus effect, and when 
they have Itfui no possession suflBcient to endtle them to a pooes*- 
sory judgment, the advocator, as proprietor of the ground, was 
justified in applying for an interdict to prevent them or their ser> 
vante from using the road in dispute, and in so &r grants the in- 
terdict craved ; fdso grants the interdict craved as to the use of 
the road to Tamaree mill, acquired by the advocator's predeoes'- 
sot by £su-oontmct from the late Archibald Napier, the reqMn^s- 
dents making no claim thereto, and decerns : Finds it unneces- 
sary to grant any interdict as to the regulation of the sluice, the 
advocator's right to the sole regulatbn fbUowing from his ezdu^- 
sive possession of access thereto : Finds the advocator entitled to 
expenses, subject to modification ; allows an account thereof to be 
given in, and remits to the Auditor to tax the same, and to re^ 
port* 

The Lord Ordinary added the foUomng note : < The contract 
is quite silent as to any road or access to the dam*head ; and 
if the present action were tiie proper one for determining, whe»> 
ther a right to such road can be implied from the provisions of 
the contract, the Lord Ordinary would have great difficulty in 
arriving at the condusion the Sheriff has done. Where ser^ 
vitudes are essential to the enjoyment of an admitted r^ht^ they 
may be iitferred from it, as the right of a road to a moss follows 
neoeStarily from a servitude of casting peats there ; but there seems 
no necessity in such a case as the present, that the servants at aH 
the mills should interfere in the regulation of the sluice, or that 
there should be a common road along the whole course of the 
mill-lead. Take for example the mills <m the Water of Leitb. 
The m}114ead proceeding from the dam-head immediately below 
the village of the Water of Leitb, afiker serving several mills be- 
longing to the corpoKation of bakers, supplies water for the sulls 
at Stodibiidge, l^vermills and Qmonmills, and does not join 
the river till a great way below. It was never thought of (the 
Lord Ordinary presumes) that the occupiers of all these mills and 
their servaats had a right to go to the dam-head and alter the sluice 
at their pleasure, and the lead passes in many places through pri- 
vate property completely indosed, so as to admit of no road or 
passage akmg the banks. The owners of the lower mills in the 
present case have a sufficient security for the siq>ply.of water in 



No. 6& COURT OF SESSIOl^ &8d 

< die obligation to fimiiih it, under which the advoeatoir lies by die 4 Feb* 168S. 

< contract ; for if he ahall, either by neglecting the datU'-head, to ^"^y^^ 

< ^Hiich, from his situation, he is primarily bound to attend, by im- ^^'^^l ^'*°' 

* pr«^er management of the sluice, or allowing the lead within his 

< ground to get into disrepair, so that the proper supply is not sent 

* down, he may be liable in the whole damage sustained/ 

The defsnders havinir redodrntd-^- 



Lord Bdlgray. — This does not appear to me to be a qnefttioii Opinion of 
eidtet of possession or declarator, but a pure question of law. We ^"^ 
have to consider what was the agreement between the parties^ It 
Was a joint concern entered into for their mutual benefit, and to 
die expense of whidi each party ooutributed. It might have formed 
part ef the agreement, diat die pardes were not to go upon each 
other's property for the purpose of seeing the state of the canal of 
the dam-dike ; and if that had been the case, we would have been 
bound to give effect to that part of the agreement as well as the 
Others. But diat is not the case here. There is a total silence as to 
the right of the other parties to go upon the pursuer^s property for 
the purpose of ascertaining the cause of damage and removing it ; 
but diere is no prohibition against the inferior heritors doing so. 
The pardes agreed to make a canal of certain dimensions ; each Was 
to keq[i it up throng dieir respective grounds, and they were joint- 
ly to be at the expense of maintaining the dam-dike. Therefore, 
eadi of the parties had a right to see that the dam*dike and the 
whole eanal was kept in repair, and that a sufficient supply of wa- 
ter was given ; and in agreeing to thls^ parties must be held also to 
have agreed to what was necessary to make that right effectual^ and 
dus could only be done by allo^sring die parties access along the 
banks of the canal. This right iqppears to me to follow necessarily 
from die common interest of parties, imd that it was not to be left 
to a party who might be injured, either by an obstructi<m in the 
canal, or a deficiency of a supply of water from the sluice, to seek 
his relief by an application to die Judge Ordinary. Each party was 
•added to a legitimate use of a passage along the canal, for the pur- 
pose of aecuring his interest in it. If any improper use was made 
0f that rig^t, it would then be time enough for the party to com- 
plain. 

The Lord President concurred. Even if there had been an express 
right of access reserved by the agreement, still that right would 
have been controlled if an improper use had been attempted to be 
made of it. The lower heritors were entided to a sufficient supply 
of water ; if they did not get this, diey were entided to go along 
the banks to see what was the cause <^ this ; and, in the same way, 
if any diing went wrong at the lower part of the canal, and the 



234 



DECISIONS OF THE 



No« 58* 



4 F^. 1892. 



Weir V. 
Glennie, &c. 



Opioion of 
Court. ' 



Judgment. 



water thrown back» the upper heritors were entitled to go through 
the lower grounds to ascertain the cause of this. 

Lard Craigie thought the interlocutor of the LfOrd Ordinary right. 
There was no doubt as to the defenders' right and obligation to 
maintain the canal, and to do what was neceissary for that purpose. 
The question was as to the opening or shutting the sluice, which 
could not be admitted to all the parties, but properly and regularly 
left, in the first instance, with the pursuer and his authors, as ha- 
ving the chief and immediate interest in it. 

Lord Gillies concurred with the Lord President and Lord Bal*^ 
gray* The right of managing the sluice and preserving the canal 
does not belong to one of the parties, but to all the parties, and 
each of them must have a right to go along the canal for that pur* 
pose. When any thing goes wrong, it is not sufficient to say that 
a party may complain to the Judge Ordinary. Before such a com* 
plaint may be presented, the cause of it might be removed, and the 
party has a right to see this done. If any improper use is made of 
the rights of course that will b^ checked, in the same way it would 
have been done if the right of road had expressly formed part of 
the agreement between the parties. 

The following interlocutor was pronounced : 
* Advocate the cause ; and in respect, 1. That by an agreement 
entered into, of date 10 Aug. 1801, between Mr Morehead, Mr 
Napier and Mr Reid, it was agreed that a dam-dike should be 
erected across the river Carron, and that a cut or canal should be 
made, of certain dimensions,* through the lands of the parties, in 
such a direction < as should be found most suitable for all concern* 
^ ed,' and that the parties should have full power and < liberty to 
^ erect such mills as they should think proper upon the sides of the 
^ canal, each within his own property;' by which agreement an ope* 
ration was undertaken and executed for mutual benefit and advan« 
tage, and in which all were jointly interested : 2. In respect that 
such mutual contract and agreement necessarily imposes on all con* 
cerned an obligation to implement what has been respectively under- 
taken, and creates a legal interest in all to whom it belongs to see 
that it is so done : 3. In respect that a contract entered into for mu^ 
tual benefit and advantage also necessarily supposes such conces-* 
sions of right, and such permissions, hinc inde, as may enable par^ 
ties to support their agreement, and that the law of Scotland al- 
ways prefers the preventing of injury or damage to any future re* 
parations by indemnification in the way of damage : Therefore re- 
call the interlocutor of the Sheriff and of the Lord Ordinary, and 
find, I. That in consequence of the foresaid agreement, Uie re-» 
spective parties concerned, or persons properly authorised by 
|j|iem, have a right to pass along the bank of the cut or canal tg 



No. 5S. COURT OF SESSION. 289 

•ezamiiie the «UDe» and see that it is kept in proper repair hy all 4 FA 18S& 
concerned, and that the stipulaied quantity of *water is supplied ^<«^v*^^ 
to tiie parties interested, and so as either to prevent apparent in- ^^^^^ &c. 
jury, or to remedy such, when it does hiq;>pen, as speedily as pos« 
sible ; but for no other end or purpose : 2. Find that such right 
4>f passing along the banks of tiie cut or canal, for the purpose 
aboTC mentioned, is not to be exercised unnecessarily or nimious^ 
ly ; and, if any such improper exercise of the right should be at^ 
tempted, resenre to all concerned right to complain to the Judge 
Ordinary thereupon : Find, in the whole circumstan^^es of tiie 
case, no expenses due to either party, and decern/ 

r 

lard NewUm, Oniinuy. Act. Shme^ Jonmoii. W. Bdl. M'Uan i Qiffm^ 
W. S. Asenti. AlU Dwm qf foe. (Hope^J Wkighim^ J, Macomdmo^ 
Agrat S, Clerk. 



SECOND DIVISION. 

No. LIX. 4 February 1832. 

JOHN AITCHISON and COMPANY 

affoitut 
ALEXANDER BURNSIDE'S TRUSTEES. 

SociEiT.^PROCESS.'-^^r/ion dismissed^ in respect it was brought 
simply in name of a company^ expressing the name of one of the 
partners ^ 4c Company^* notwithstanding co7isiderable procedure 
had therein^ and the objection was not taken by the defenders. 

David Burnside granted a commission and factory for his own 
behoof in favour of John AitchisiHi, and he drew three bills, for 
L.300 each, upon the trustees of his deceased brother Alexander 
Burnside, in &vour of John Aitchison and Ck>mpany. In 1824 an 
action was brought before the Sheriff of Lanarkshire, in name of 
John Aitchison and Company alone, against Alexander Bumside's 
trustees, for payment of one of these biUs. Various steps of proce* 
dure took place in this action, and, in particular, a remit was made 
to an accountant Subsequentiy a multiplepoinding was brought 
by the trustees in the Court of Session, ob contingentiam of which 
the action depending before the inferior court was advocated* In 
the advocation various pleas in law were stated by the defenders, 
and,^ in particular, that the pursuers, John Aitchison and Company, 



S86 



DECISIONS OF THE 



No. 6». 



i F«b. issSi were bound to specify who were die pertnen of that CoB^Nuy» it 
^^^^y^ being alleged that there never existed any real company under that 
Co!^o!?iim^ name, and that, in £Eict» the only pursuer was John Aitohison indi'^ 
side*! Trustees, vidually, against whom a comuussion of bankrupt had been issued. 
The Lord Ordinary having, in consequence, ordained the puisniers 
to state the names of the partners, they stated, < that the partners 
of the said company were the said John Aitchison and David 
Bumside*' Thereafter his Lordship < found, tha^ in the (areuJKi<«> 
stances of this case, as now appearing from the reoord and pro* 
duodons, this action cannot prooeed at the inslauce of Aitchison 
and Company, and therefore dismissed the action.' The Lord 
Ordinary added the following note : < The former interlocutor of 
the Lord Ordinary related solely to the defence dien founded on 
the bankruptcy of Aitchison, as being individually the sole pursuer 
in this action. The Lord Ordinary did not think it appeared that 
he was pursuer merely as an individual, and therefore that his 
bankruptcy did not take away the instance, which was in the 
name of Aitchison and Company. But now it appears that the 
company is as dissolved by Aitchison's bankruptcy, in truth be- 
fore they came to do any business at all, so that the concern was 
as if it had never existed; and forther, in case it could be viewed 
as having any existence, then David Bum^ide, not Aitchison, was 
the only person entitled to do any thing in name of the company. 
In these circumstances, an attempt by Aitchison alone^ against the 
will of David Bumside, and without concurrence of his own cre- 
ditors, to raise any action in name of the company, seems quite 
inadmissible. Nor is it easy to see how, in such circumstances, 
there could possibly be room, in any shape, for an action, of whiA 
the effect was to be to enforce the inputting of stod^ into tiiis 
perished company.' ; 



Opinion of 
Court. 



Judgment. 



The pursuers having redaimedj Lord Meadawbank said — That the 
summons being raised simply in the company name, which was not 
-A uomen juris, the Court was bound ito refuse to entertain the ac- 
tion, although this was an objection which had not been taken by 
the defenders at any stage of the proceedings. Tlie other Judges 
having concurred, 

The Court adhered to the interlocutor dismissing the action, but 
tills merely < in respect the action was raised in the name of Aitchi* 

< son and Company only, without prejudice to any competent action 

< being brought for payment of the bilL' 

L4frd Mackenzie, Ordinary. For the Pursuers, Dean ofFac f Hope, J J. ffamUUm, 
James Bvmtide, W. S- Agent. For the Derenders, JR, Tkomion, John 

CampbeO, W. 8. Agent JR. Clerk. 

S. 



No. eo. COURT OF SESSION. 237 



FIBST DIVISION. 

No. LX. 7 February 1832. 

ALEXANDER MACRA and Others 

against 
ALEXANDER MACARTNEY. 

Meditatio Fug£. — Abbey of Holyrood. — Held that, when 
debtors had retired to the Sanctitaryy it was competent j upon the ap^ 

plication of the creditor^ shewing probable grounds of belief of 
their intention to leave the country, to incarcerate them in the 

jail of the abbey, * until they find caution, dejudicio sisti, in any 
< action to be brought,* ^c, * or to abide the diligence of the law,* 
(in the case of a bill,) * any time within six months from the date 
of the warrant. 

The suspenders, Macra and others, who were cattle-dealers in 
Invemess-shire, suddenly left the county and came to Edinburgh, in 
December 1831| and they took refuge in the Sanctuary of Holy- 
roodhouse, with the view, as they alleged, of taking out a seques- 
tration, and of obtaining protection against diligence ; and seques- 
tration was awarded by the Lord Ordinary on the Bills, 29 Decem- 
ber 183L On the other hand it was stated, in a letter from the agent 
of the Commercial Bank at Inverness to the Bank in Edinburgh, 
that these persons had absconded, and taken reiiige in the Abbey, 
preparatory to their departure for Van Dieman's Land. In these 
circumstances the respondent, Mr Macartney, the manager of the 
Commercial Bank in Edinburgh, presented a petition to the Bailie 
of the Abbey, setting forth, that the complainers were indebted to 
him, in that character, in the sum of L.200 sterling, contained in a 
bill held by him against the complainers, which had fallen due, and 
that they were in meditatione fugse, with the view of defeating the 
claim of the petitioner and their other just and lawful creditors, 
&c. ; and therefore praying for warrant ^ to apprehend the said Mur- 

* doch Macra, Angus Macra, and Alexander Macra, and each of 

< them, and bring them before you for examination ; and upon its 

* being admitted or proved that the said persons are in meditatione 

< fug», to grant warrant for committing them, and each of them, to 

* the tolbooth of the Abbey, or other warding place, therein to re- 

< main until they respectively find caution, acted in your Honours' 
' books, de judicio sisti, in any action to be brouglit by the peti- 

VOL. VII. R 



238 



DECISIONS OF THE 



No« 60. 



7 Feb. 1832. 



Macra and 
Others v. Moc- 
ttrtncy. 



^ tioner against them, within six months, for payment of the fore- 

* said debt, or to abide the diligence to be raised on the said bill,' 
&c. In the oath emitted by the respondent, it was stated that the 
ground of the deponent's belief of the suspenders being in medita- 
tione fugse was the above letter from the Bank agent at Inverness, 
from which it appeared that their intention was notorious in Inver- 
ness, they having clandestinely fled, after having secreted or dis- 
posed of their effects, and the said Alexander Macra having, in par- 
ticular, removed his furniture clandestinely from the house occupied 
by him at Inverness *. 

The suspenders were severally examined by the Bailie, and from 
their examinations it appeared, that they had suddenly and clandes- 
tinely left Inverness, and with a view, as they alleged, of obtaining 
a sequestration, or otherwise settling with their creditors ; — that two 
of them had brought considerable sums with them, one of them to 
the amount of about L.270, while another refrised to state the 
amount taken by him. 

Upon advising the petition, with the oath of the petitioner, and 
the declarations of the suspenders, the Bailie ^ grants warrant to 

< the officers of court, and other officers of the law, to incarcerate 

< the said Alexander Macra, Murdoch Macra, and Ang^s Macra, 

< within the tolbooth of Holyroodhouse, until they find caution, de 

< judicio sistt, in any action to be brought by the petitioner against 

* them, before any competent court, for payment of the debt within- 

< mentioned, or to abide the diligence on the bill mentioned in the 

< petition, any time within six months from this date.' 

The suspenders were accordingly incarcerated, and a bond of 
caution, in terms of this interlocutor, was prepared, whereby the 
cautioner was taken bound, on due intimation, to produce the par- 
sons of the suspenders ^ within the court-house of the Abbey, and 
^ that under the penalty of being Hable in payment of the bill,' &c. 
In a bill of suspension and liberation it was pleaded — 



Suspenders* 
Pleas. 



1. That it was illegal, and ultra vires of the Bailie, to grant war- 
rant for the imprisonment of the complainers until they should find 
caution to abide the diligence raised, or to be raised on the bill in 
question, such an obligation being equivalent to caution judicatum 
solvi; and it being now the established law of the land, that a debtor, 
apprehended as in meditatione fugae, is only bound to find caution 
de judicio sisti, in common form, which the complainers were ready 
to do; Ersh i. 2, 21 ; BeU^ i. 381, 384; Scott v. Sandilands and 
Manderson, 7 Dec. 1744; Falc. Kilk. M. 1929. 



* A siimilar application was presented on the part of Mr Mackenzie of Applecross, b,\m 
a cri'Jlior of the suspenders. 



No. W. COURT OF SESSION. 239 

2. Besides, the estates of the complainers not being equal to the 7 Feb. 1838. 
payment oi their debts, to confine them in the Abbey jail until they ^"^^V^ 
find eaation to abide the respondent's diligence is equivalent to otben v!^M«c. 
perpetual imprisonment; and as it will be impossible for them to utney. 
find any sort of caution, by keeping diem in jail, they are even de- 
prived of that last remedy, which is open to all other debtors, name- 
ly, an application for the benefit of a cessio bonorum; for an im- 
priscmment in the Abbey jail, ad fiEurtum preestandum, is not a suf- 
ficient foundation for a process of cessio, while, on the other hand, 
no creditor is entitled to arrest them there for payment of debt, they 
being within the privileges of the Sanctuary, and their whole debts 
having been contracted out of it. 

8. The respondent has shewn no sufficient g^unds for his al- 
leged belief of the complainers' intention to leave Scotland. They 
had no such intention, or they would not have taken refuge in the 
Saactnary, and have sued out a sequestration, when they could 
easily have absconded. They also denied having secreted their 
effects; but admitted that one of them had returned some new fur- 
niture to an upholsterer in Inverness, when he found he could not 
pay for it 



It was answered — It is no doubt incompetent, upon an applica- chorg 
tiOD against a person as in meditatione fug», to require caution ^^^^ 
jttdicatum solvi, as well as de judicio sisti ; but that b not here de- 
manded. The nature of the caution which it is competent to re- 
quire depends upon the situation of the debt, as well as upon the 
situation of the creditor. When the debt is illiquid, or stands upon 
an open account, the caution must be de judicio sisti in any action to 
be brought for payment before a competent court, within a limited 
space, generally six months. Again, if the debt rest on a bill, as 
in the present case, the creditor has it in his power, either to sue 
for payment of the bill by action, or avail himself of the privilege 
of raising diligence summarily, by recording the protest, and by fol- 
lowing up the protest by horning and caption. In the same way, 
Aen, if the debtor be in fuga, the creditor is entitled to have his 
person secured, widi the view to either course of proceeding. He 
is entitled to have caution de judicio sisti, with the view to his pro- 
ceeding by action ; and he is entitled to have caution that the debtor 
shall abide the diligence, in the event of his proceeding to raise 
diligence summarily. 

2. The difficulty, if any, arising from the nature of the imprison- 
ment in the Abbey, is one arising from the choice of the complain- 
ers, and could easily be obviated by their offering themselves to the 
ordinary diligence of the law ; and, besides, all tliat was demanded, 

Rl2 



er « 



240 



DECISIONS OF THE 



No. 60. 



Charger's 
Pleas. 



7 Feb. 1832. was caution to produce the persons of the debtors ^ within the court- 
^^^V^fc^ * house of the Abbey,' which would give the respondeat relief if 
Macra and ^jj^y i^fj. ^jjg icingdom, while it did not interfere with the privilege 
artney. of the Sanctuary. 

3. The warrant of imprisonment does not rest upon the respon- 
dent's belief of an intention to leave the country. His reasons of 
belief were condescended on in his oath, and the warrant of im- 
prisonment does not proceed upon these alone, but also upon the 
facts and circumstances elicited from the suspenders in the course 
of their examinations, which, in the mind of the Bailie, inferred an 
intention of fuga. 

The* Lord Ordinary on the Bills appointed the complainers to 
produce the proceedings before the Bailie, and added the following 
note : * The Lord Ordinary is entirely satisfied that the ground of 

< suspension mainly insisted on (the first) cannot be maintained. 

< Though the bond bears that the complainers shall abide the dili- 

< gence raised, &c. the obligation is only to produce ^ his person 
<' within the court-house of the Abbey,' where it can have no more 

* force than in Jany other case ; and as the respondent holds a li- 

< quid ground of debt, the case is plainly within the principle of 

* the judgment in the case of Cockburn r. Inglis, 25 June 1776, 

< which is fully recognised in practice,' &c. 
Thereafter, having considered the proceedings before the Bailie, 

&c. his Lordship refused the bill, and found expenses due : ^ Note. — 
' The Lord Ordinary is satisfied, 1. That the proceedings have 

< been regular and correct ; 2. That the grounds of belief of an in- 

< tention to leave the country, being very clearly and fairly stated, 

< are probable and pregnant, and that they are materially confirmed 

* by the admissions of the defenders as to the circumstances under 
^ which they severally disappeared from their places of residence, 
' the admissions of two of them as to the money brought with them, 

< and the refusal of Alexander Macra to state the amount of the 
' money which he had in his possession ; and, 3. Tliat the plea 

* founded on the peculiar nature of an imprisonment in the jail of 

< the Abbey, as excluding the possibility of a process of cessio bo- 

< norum, is altogether absurd ; because, if there were a serious diffi- 
' culty, it would arise from the choice of the complainers them* 

* selves, and because they surely know, that whenever they choose 

< to offer themselves to the ordinary diligence of the law, that diffi- 

* culty will be at once removed.' 

The Court adhered. 

The Lord President observed — That it was not necessary to pro- 
duce direct evidence of an intention to leave the country. It was 



Judgment. 

Opinion of 
Court. 



No. 60. COURT OF SESSION. 241 

sufficient if probable grounds of belief were set forth, as had been "^ ^^' |®^ 
done in the present instance ; and the conduct of the complainers ^ ^^'^ 
was, in many respects, attended with very suspicious circumstances, others v, Mac« 

Lord GiUies added — That it was generally impossible, in such »rtney. 
cases, to produce direct evidence of what were truly the feelings of 
the mind of the parties charged with an intention to abscond. All 
that could be required was, that probable grounds of suspicion be 
established. 

Lord Craigiey however, expressed a doubt whether, in the case 
where there was an opportunity of raising diligence within a very 
short time, it was proper to extend the cautionarv obligation to 
«ix months. 

Lord Ordinary on the Bills, Moncreiff* For the Suspendcrsi SoL^Gtn, (CoMum^) 
John Wilton, Ad, Wilson, AgenU Alt. Jamuon, David Houtton, Agent. 
B. Clerk. 

C. 



SECOND DIVISION. 

No. LXI. 7 February 1832. 

WILLIAM RAE 
againU 
JOHN HAY AND Others. 

Mutual Contract. — Naut^, Caupones, Stabularii. — The 
stranding of a vessel^ and consequent necessity of landing the cargo^ 
mil not liberate the shipowners from their strict responsibility^ 
under the contract of affireightmenty as carriers^ while afterwards 
forwarding the goods by land or water to their original place of 
destination. 

William Bae, draper in Glasgow, brought an action before the 
Judge- Admiral against the London and Edinburgh Shipping Com- 
pany, setting forth that a truss, containing two pieces of broad 
cloth, amounting in value to L.dd : 12:3, ordered by the pursuer 
from the manufacturers in England, and addressed to him, was de- 
livered into the custody of Thomas Hosie, the defenders' agent and 
wharfinger at London, * and was, by the said agent and wharfin- 
* ger, shipped on board of the smack or vessel called the Comet of 
< Leith, then lying at the said wharf belonging to the said London 



242 



DECISIONS OF THE 



No. 61. 



Rae V. Hay 
and Others. 



7 Feb. 1832. ' and Edinburgh Shipping Company, and loading for Leith, as is 

< instructed by the acknowledgment of the said Thomas Hosie, 
* produced in process ; that the said goods have not been delivered 

< to the pursuer ;' and therefore concluding, that the defenders 
should be ordained to deliver the said truss, or to make payment of 
its said value, under deduction of the customary freight and charges 
due upon it 



Pursuer's 
Pleas. 



The defences contained the following statement : * The defend- 

< ers admit the truss in question to have been shipped on board of 

< the Comet, as mentioned in the libel. The defenders were 
' prevented from making delivery of this truss in consequence of 

< its having been lost by an unavoidable accident, for which they 

< are not responsible under their contract as carriers. The Comet 

* sailed from London with the truss on board, 23 April 1824, and 
^ by stress of weather was, on the day following, driven on shore 
^ on Waxham Beach. It was impossible to get her off without 

< unloading the cargo, which was accordingly put into boats, land- 

* ed on the open beach, and carted to Yarmouth, a distance of about 

< 14 miles, from whence, in so far as it had been saved, it was af- 

< terwards shipped in another vessel and brought to Leith. The 

< vessel remained on shore eight or ten days, and was ultimately 

< got off at great expense. In the course of removing the cargo 

* into the boats, of landing it on the beach, and of carting it to 

< Yarmouth, various packages were lost; and, indeed, in the confri- 

< sion and bustle which necessarily take place on such occasions, 

< it is quite impossible to prevent such accidents. Among the 

< goods so lost was the truss in question.' The plea in law on this 
part of the case accordingly was. That the package in question 
having been lost in consequence of the stranding of the vessel, the 
defenders could not be made responsible for its value. 

To this it was answered — That it did not appear that the pack- 
age in question was lost by the stranding of the vessel. As the 
whole of the other goods had been saved, the pursuer's package 
might also have been saved had sufficient care been taken of it 
It did not appear in what way it was lost ; but it was necessary 
for the defenders to show that it arose from the act of God or the 
King's enemies, otherwise they must be responsible to the pur- 
suer. 

The Judge- Admiral having closed the record, * Finds it admitted 
^ by the defenders that the goods in question were on board the de- 

< fenders' vessel, the Comet, at the time she was stranded near Yar- 
' mouth, and have not been delivered : Finds it not alleged by the 



No. 60. COURT OF SESSION. 248 

* defenders that any of the goods on board of the vessel were lost 7 Feb. 1832. 

< at sea at the time the vessel was stranded ; but that it is asserted ^"^^V^^ 

< merely that, in the eonfosion attending the landing of the goods, f^Q^^^ 

* some packages were lost, and, among others, the goods in ques- 

< tion : Finds it asserted by the defenders, that every prudent 

* measiire was adopted by die master and the men in order to pre- 
^ serve the cargo ; and, before answer as to the relevancy of the de- 

< fence, allows the defendeis a proof of their averments respecting 

< the care and diligence of the master and men in the preservation 

* of the cargo.' 

A proof was accordingly led on the part of the defenders, both 
at Leith and at Yarmouth ; on advising which, the Judge- Admiral 
pronounced the following interlocutor: < Finds it proved, that 
after the vessel was stranded, every due exertion was made by 
the master and crew to land and preserve the goods on board : 
Finds sufficient grounds to presume that the packet in question, 
if not washed out of the vessel by the force of the sea, was lost 
amidst the confusion arising in consequence of the wreck of the 
vessel : Finds that the defenders are not responsible for a loss 
arising in such extraordinary circumstances : Therefore assoilzies 
them from the action, with expenses of process.' 
The pursuer brought a reduction of the Admiral's decree, alleg- 
ng the irrelevancy of the proof led by the defenders, in so far as it 
was directed to shew that there was no deficiency of care and dili- 
gence on the part of the master and crew, and others employed by 
him, in order to save and preserve the cargo after the stranding of 
the vessel ; it being contended, that the defenders' obligation to de- 
liver the goods continued precisely the same after as before that 
occurrence, and that they could not liberate themselves unless by 
shewing that the goods were lost directly in consequence of some 
inevitable accident, which was not to be traced to any form of human 
agency or intervention ; BelPs Comm. ii. 308, and 909 ; Abbots 
dth edit. Part III. c. 3. sec. 2, and c. 4. sec. 1 ; Jeremxfs Law of 
Carriers^ 57 ; Forward v. Pittard, 1 T. jB. 27 ; 2 Holfs Laws of Ship- 
pinffi 87 ; Shipmaster's Assistant and Oumer^s Manual^ 16 th edit. 
Lend. 389, and 390. 

In drftnce the fact was strongly founded on, of the sea having Defenders* 
carried away the top of the skylight of the cabin, and having con- ^^^^ 
tinned to wash in and out of the cabin, through the skylight, with 
great violence, for two or three days after the vessel was stranded and 
lay on the beach, as a probable cause of the loss of the bale of goods 
in question ; but, on the supposition that the loss happened during 
the confusion which unavoidably attends the landing of a cargo in 



244 



DECISIONS OF THE 



No. 61. 



Rae o. Hay 
and Others. 



7 Feb. 1832. fiuch circumstances, the defenders argued, that this was such a direct 
consequence of the stranding, as to be held a loss arising from the 
perils of the sea, and consequently falling within the exception to 
their responsibility. On the other hand, they maintained, that if 
it were supposed that the goods were subsequently lost while the 
cargo was in the course of being forwarded by land and water to 
Yarmouth, this was enough to free them from any liability : For 
the proof shewed that every thing was done for perservation of 
the cargo that could be reasonably required of the master and crew, 
both in landing it on the beach, and transporting to Yarmouth, and 
there reshipping it on board of another vessel for Leith ; and the 
strict responsibility of the defenders, as shipowners, ceased to attach 
to them after the stranding and discharge of the cargo; Abbot^ 
edit. 1809, 241 ; Lawes^ on Cliarter Parties, ed. 1813, 356. 

The Lord Ordinary reduced and decerned in terms of the libel, 
and found expenses due. To this interlocutor his Lordship sub- 
joined the following note : * The Lord Ordinary is far from think- 
ing that the case is not attended with difficulty. He has given to 
it a great deal of consideration, both during the hearing and since; 
but after having read the entire record several times, he finds it 
impossible for him to affirm the judgment brought imder reduc- 
tion. He thinks, that if the case is considered as depending pn 
matters of fact, the party bound to prove has not proved what it 
was necessary for him to prove ; and that, as a case of law, with- 
out such evidence, it involves principles of great importance to the 
mercantile world. 

^ It would require a long statement to explain all the grounds 
on which the Lord Ordinary founds his opinion. The main 
point is this : It is proved and admitted (notwithstanding a very 
groundless objection to the title) that the goods were delivered 
into the hands of the defenders, or their agents at London, for 
transportation. They were not delivered ; and it has not been 
proved at all, in what manner, or by what cause, at what time, or 
at what place, they were lost. It is proved, indeed, that the ship 
was stranded ; but the defenders' own statement; as well as all the 
evidence, establishes that all the goods which were in the ship 
were got safely out of it. The first interlocutor of the Judge- 
Admiral on the merits, never complained of, and clearly final 
when the last judgment was pronounced, expressly ^ 'finds it not 
^ alleged by the defenders that any of the goods on board of the 
< vessel were lost at sea at the time the vessel was stranded.' And 
this is followed by the finding, that the averment of the defenders 
was simply, that the goods were lost among others, < in the con- 



No. 61. COURT OF SESSION. 245 

* fusion attending the landing of the goods.' Whether this, if 7 Feb. 183t. 
proved, would have furnished a good defence, may be doubtful. ^«<«>y^>«^ 
But there is no such fact in evidence : It is not proved that the ^Sthe*^ 
goods were so lost ; and the probabilities are great — ^increased by 
the evidence of care and attention ^that they were not so lost. 
The Lord Ordinary will not be supposed, in dealing with a case 
of law, to say or insinuate any thing to the prejudice of the parti- 
cular parties in the cause. But the fact is, that the matter is left 
in such a state by the evidence, that for any thing that appears, 
the bale of goods might have been still in the possession of the 
defenders when the action was raised. It should not have been 
so. It is stated that inventories were made, and the defenders 
had them in their own possession. The defenders were in every 
view bound to preserve these lists— to compare them with the 
manifest, which must then at least have been in their power — and 
to communicate them to the pursuer, which it is not averred they 
ever did. As the matter stands, whether from necessity or other- 
wise, it is left in absolute doubt and uncertainty in what manner 
the goods were lost, or whether they were lost at all, and were 
not safely delivered to the defenders at Leith. 
< The case therefore resolves into this important question, whether, 
by the event of the stranding, the contract of affreightment was 
so ended, that the strict responsibility of the defenders as carriers 
was extinguished, and they became merely liable in ordinary di- 
ligence as mandataries or negotiorum gestores. The Lord Ordi- 
nary thinks it imnecessary to give any opinion on the point, whe- 
ther they have shewn such diligence or not The greatest fiiilure 
is in the non-preservation or production of the manifest and inven- 
tories, which they should have had, and compared and preserved 
from the first moment of the report of the accident — still the more 
especially as the master was alive for at least six months after the 
raising of the action. But these things seem to the Lord Ordi- 
nary to be of comparatively little consequence. Supposing the 
defenders to have proved generally the utmost apparent care, the 
question is, are they thereby relieved as carriers, subject to the 
Roman edict under our law, fdllowed as it is by the equivalent 
rule of the conmion law of England ? The Lord Ordinary hum- 
bly thinks, that it frirnishes no relevant defence. He can by no 
means enter into the idea that this responsibility ceased by the 
stranding. He holds that the master's duty continued to preserve 
the goods and earn the freight, and that as long as he was so pro- 
ceeding, at least without notice to the owners of the goods, (though 
the competency of ending the contract by such notice seems to be 
more than doubtful,) the shipowners must still be considered as 



246 



DECISIONS OF THE 



No. 61. 



Rae V. Hay 
and pthen. 



7 F«b. 1832. < subject to the general law applicable to their peculiar trade. How 

< far that goes even beyond what is necessary for the case of the 
^ pursuer appears from the authorities, some of which are quoted 

< in the summons. And the Lord Ordinary is of opinicm, that it 
^ is a law of great and general importance, however it may appear 
^ occasionally to bear hard on individuals. 

^ The interlocutor of the Judge-Admiral, finding the pursuer 

* liable in the whole expenses, notwithstanding the serious discus- 

< sion on the objection to his title, could not, in any view, be sup- 

* ported.' 



Opinion of 
Court. 



Judgment 



The defenders having reclaimed — 

The Lord Juetice'Clerk entirely concurred in the interlocutor, 
•and the opinion expressed by the Lord Ordinary. A carrier by 
land or water was absolutely bound to deliver every package which 
he undertakes to convey ; and it is of no avail to bring witnesses to 
prove his care and diligence as an excuse for the non-fulfilment c^ 
his obligation. 

Lord GlenUe. — I think the interlocutor is right It was in the 
defenders' power to have ascertained at the time whether the truss 
was lost in consequence of the stranding of the vessel ; and they 
have materially fedled in thii. In reference, however, to the ques- 
tion of expenses, I must say, that this is one of the hardest cases 
•ever brought against sndi parties, and that this should have some 
effect in determining that matter. 

Lord Meadawbanh oould not see grounds for altering as to ex- 
penses, and was simply for adhering to the interlocutor. 

Lord Crinffktie thought the interlocutor quite right, not only for 
the reasons stated by die Lord Ordinary, but also on the ground 
Ihat^ as it appeared to him, the vessel had been stranded through 
mismanagement of the shipmaster. 

The Court accordingly refused the reclaiming note. 

.Lord Manereiff', Ordinary. For the Pursuer, SoL-Gen, fCoMunifJ WiUon, 

SmSlie i Murdoch, Agento. For the Defenders, Dean of Fac, (Hope^J Bos^ 
woU, Honu ff BoMj W. & Agents. T. Clerk. 

& 



No. 63. COURT OF SESSION. 247 



FIRST DIVISION. 
No. LXII. 10 February 1882. 

ADAM LUKE and Others 

affoingt 

Rev. JOHN HUNTER and Others. 

Patronage. — Burgh Royal. — Tlie TovmrCouncil of Edinburgh 
hamng^ at Ihe request ofcnevf the minitters of a cottegiate church 
of the city, (who was far advanced in life and unable to discharge 
tlie minikerial duties, J appointed an assistant and successor to kUn, 
and the presentation hamng been susiainedby the PreAyUry,^^faund, 
in a r^tuetianofthatpresenkOionyAatihe Towr^C&tmcU hadariyht 
to appoint an assistant and sueeessor, and that the expedieney and 
propria of the appointment fell, in the first instance, to bejutfyed 
of by the church courts. 

On so April 1829, the Rev. Dr Sintpflon, oae of the minkterB of 
the Tron Church, Edinburgh, addressed the following letter to the 
Lord Provost : * My Lord, having been ordained a minister of the 
« Church of Scotland in 1771, and a minister of Edinburgh in 1786, 
' I felt about three years ago that my strength, and particularly 

< my voice, was scarcely sufficient for my public duties ; and, widi 

* the fall approbation of my people and my colleague Dr Brunton, 
« I appointed Mr Goldie my assistant in die Tron Church. I am 

* informed that that gentleman is shortly to be presented to a p»- 

< rish in the country ; and it is my earnest wish that the congre- 
^ gation of the Tron Church should have the important advantage, 

< in my lifetime, of the labours of a minister of standing and expe- 

* rience in the church, as already ordained, and such a one as 

< would be deemed by your Lordship and the Council worthy to be 

< appointed to the charge were it actually vacant I now use the 

< liberty to state to your Lordship, for the information of the Ma- 
^ gistrates and Council, that it would give me much comfort and sa* 

< tisfieu^tion to have such a minister associated with me as my assis- 

* tant and successor, if that arrangement shall be agreeable to your 

< Lordship, and the Magistrates and the Town-Council.' 

This letter was laid before the Town-Council on the 6th of May, 
and it was understood, that at the next ordinary meeting of the 
Council, it was to be proposed to elect the Rev. John Hunter, mi- 
nister of Swinton, as assbtant and successor to Dr Hunter. At 



248 DECISIONS OF THE No. 62, 

10 Feb. 1832. the following meeting (on the 13th) a petition was presented by 

^^«^V^ six of the elders of the Tron Church against the appointment of 

Luke and ^j, Hunter; but the Council resolved * to present the Rev. John 

Others v. Hun- ' , .1 t> -n^ x^tmi* 

ter and Others. ^ Hunter to be assistant and successor to the Hev. Dt William 

* Simpson, one of the ministers of the Tron Church and parish 

* of this city, under this express condition, that the Rev. Dr 

< Simpson shall settle on the said Rev. John Hunter such a pro- 

< vision during his, the said Dr William Simpson's lifetime, as 

* shall satisfy' the Presbytery of Edinburgh ; against which resolu- 

< tion Treasurer Luke protested for himself, and such as might ad- 

< here to him.' 

A presentation in favour of Mr Hunter was laid before the 
Presbytery on 29 July, and the Presbytery sustained the presen- 
tation. Against this judgment some of the members of the Pres- 
bytery dissented and complained, and subsequently brought the 
matter first before the Synod, and afterwards before the General 
Assembly, by both of which church courts the judgment of the 
Presbytery was affirmed. 

The present action of reduction, for the purpose of setting aside 
the resolution of the Town-Council, agreeing to present Mr Hun- 
ter, and the deed of presentation, was then brought at the instance of 
Adam Luke, John Chambers and John Gladdow, members of the 
Town-Council for the year 1829, and as burgesses of the city; and 
also in name of William Henderson, James Aikman and John 
Young, members of the Tron Church session, and also as burgesses 
of the city. The defenders called in this action were the Lord 
Provost, Magistrates and Council, the Rev. Dr Simpson, and the 
Rev. John Hunter. Before this summons was executed, a new 
elecrioh of Magistrates had taken. place; and in May 1830, they 
agreed, by a majority, not to make any appearance, or to lodge any 
defences in the action. Defences were given in for Dr Simpson 
and Mr Hunter. 

During the dependence of this action Dr Simpson died, and a new 
election of Magistrates having taken place, they, in 1831, resolved, 
by a majority, to raise a reduction of the presentation granted by 
their predecessors in favom* of Mr Hunter, and a second summons 
of reduction was then raised in name of the Lord Provost and Ma- 
gistrates and Council for 1831, calling as defenders the Rev. John 
Hunter, and the individuals who had filled the situation of Provost, 
Magistrates and Council for 1829. These two summonses were af- 
terwards conjoined. 

As the arguments for the parties are fully embraced in the note 
which the Lord Ordinary gave out with his interlocutor, and which 
will be found below, it is only necessary to state the pleas in law 
on which the parties respectively founded. 



No. 62- COURT OF SESSION. 249 

Pleaded for the pursuers — 10 Feb. ]8S9. 

!• The appointment of Mr Hunter was illegal, because it was ^^"^y^^ 
neither necessary nor expedient. oSicrs'v. Hun- 

2. It was illegal, because it is incompetent in principle, and un- terand otheM. 
sanctioned by usage, for any patron to appoint an assistant and sue- Pureuers^ 
cessor, or, in other words, a new minister to a benefice that is not Pl«<»' 
vacant. 

3. This is peculiarly illegal in the case of a town-council, which 
has no right to anticipate or forestall the patronage of its predeces- 
sors, and to deprive them of the power of exercising their own dis- 
cretion upon the occurrence of a vacancy while they are in oflSce. 

4. This was the more illegal in any Town-Council of fidinburgh, 
because it is repugnant to the principles, regulations and acts of 
Council which have been prescribed for the direction of thb parti- 
cular body. 

5* The appointment of Mr Hunter was not made at a meeting 
of Council lawfully called and constituted. 

Pleaded for the defenders — 

1. The question is no longer open, whether it was expedient and Defenders' 
necessary, in consequence of Dr Simpson's infirmities, to appoint ^' 

an assistant and successor, the appointment having been sustained 
in the church courts, who are the only and proper judges of that 
question. But, moreover, the necessity and expediency of the ap-^ 
pointmentwere sufficiently proved to the patrons before it took place. 

2. The church court having found that the appointment of an 
assistant and successor was expedient for the interests of the parish, 
and the incumbent having given his full consent, the parties vested 
in the right of patronage were entitled (as well as bound by the 
duties toward the parish) to appoint an assistant and successor ; and 
no one has a title or interest to object. 

3. The presentation being granted by the majority of the Town- 
Council, a minority of the body cannot object in a court of law to 
the act, if the power vested in that body was regularly exercised, 
upon any grounds which were the proper subject for the delibe- 
rations of the body having the right of patronage. 

4. By the law and practice of Scotland, an assistant and suc- 
cessor may be named by the patron, where the circumstances of 
the parish require it, although the benefice should not be vacant ; 
and, in this matter, there is no distinction in principle, and no 
distinction has ever been made in practice, between individuals and 
corporations possessed of the right of patronage; see 19 Geo. Ill, 
c. 20 ; 48 Geo. Ill, c, 50; Cannett an the Law of Parishes^ 517. 

5. The proceedings pi the Town-Council of Edinburgh, in the 
election of Mr Hunter, were conformable to the sett of the burgh, 



250 



DECISIONS OF THE 



No. 62. 



lb Feb. 1832. as it has been understood in practice tat more than a centnry. 
^^*^V^^ The meetings of Council at which this matter was discussed were 

Otfi^*". Hun- lawfully called and lawfully constituted* 

ter and Others. 6. Unless some valid objection can be stated to the legality of 
the meeting of the Town-Council by which the presentation was 
granted, or to the powers of the Town-Council to appoint an as- 
sistant and successor, on the ground that the full right of patronage 
is not vested in them, and that they are not competent to Ailfil all 
the duties of patrons, there is no question for die determination of 
the civil court 

The defenders fiirther referred to forty-three cases where, at pre- 
sent, there were assistants and successors in di£ferent parishes in Scot- 
land ; and to a similar practice of the Town-Council of Edinburgh 
in electing assistants and successors to Professors of the University ; 
and more recently, viz. in January 1828, the Town-Council, patrons 
of the parish of Fala, elected an asdstant and successor to the then 
minister of that parish. 



The Lord Ordinary, after hearing counsel at great length, sus- 
tained the defences, assoilzied the defenders^ and found the pur- 
suers liable in expenses. 

His Lordship added the following note of his opinion : 

< The Lord Ordinary has considered this case with care, because 
it has been treated as a case of importance. It is undoubtedly a case 
of great importance in some views of it ; but he should not do jus- 
tice if he did not state, that it is a case in which he has never en- 
tertained the slightest doubt 

< The material facts are simple : Dr Simpson, at the age of 
eighty-five, intimated to the Town-Council that he had no hope 
of being able to continue to discharge the duties as minister of the 
Tron-Church of Edinburgh, and that he was desirous, if the 
Town-Council approved of it, of having an ordained minister of 
experience appointed assistant and successor to him. The pro- 
posal lay a week on the table of the C/Ouncil, and was then ap- 
proved of. Dr Brunton, the coll^ate minister of the same 
church, expressly consented. On the 13 May 1829, the Coun- 
cil resolved to present Mr John Hunter, a person in all points 
qualified ; and no step having been taken to prevent this, a pre- 
sentation was given to him on 10 June 1829. That presentation 
was regularly sustained by the Presbytery, without any objection 
having been stated by any private party. Then a question on 
the ecclesiastical merits of the case arose among the members of 
the court themselves, and was terminated by a final judgment of 
the General Assembly, 1830, holding the presentation to be good ; 



No. 62. 



COURT OF SESSION. 



251 



terand Othen. 



but, as an action of redaction had been.raised) on the eve of the 10 Feb. 1832« 
sitting of the Aaaembly, superseding^ the induction till the issue ^*<^v^^ 
of that process, according to the uniform practice since tiie case otLmT^Huiu 
of Lanaric 

< Mr Hunter's induction was prevented solely by the proceed- 
ings in the church courts, to which tiie pursuers were no parties, 
and if he had been inducted, there must have been an end of the 
matter. 

< The first reduction was not brought till after the presentation 
had been sustained by the Presbytery, and their sentence had 
been affirmed by the Synod* There seems, therefore, to be much 
ground £Dr the plea, that the pursuers had no right afterwards to 
insist in any reduction, the act 1567, c. 7, being explicit as to the 
effect of the judgment of the church courts, and no civil impediment 
having been previoudy attempted. But the Lord Ordinary does 
not rest his opinion on this, though he has yet heard no good an- 
swer to it. 

< The main question is, — Had tiie Town-Council, the undoubted 
patrons, power, on tiie applicaticm of Dr Simpson, to grant the 
presentation to Mr Hunter ? There is no difficulty in form. The 
particular objections stated appear to be groundless, and were 
scarcely insisted on at the bar ; and the pre6entati<m is in the 
usual form in such cases. The question is, — Have the patrons 
power to make the presentation to die effect of. warranting the 
Presbytery to ordain or admit Mr Hunter as minister, assistant 
and successor in the parish? 

' The case has been argued to the Lord Ordinary on a denial 
of the legality of this in any parish. He is humbly of o{»nion 
that the plea is untenable as matter of law, and irrelevant and 
groundless in any other view. 

< In order to take a right view of this question, it is necessary to 
attend to the genius and constitution of the Church of Scotland. 
It cannot justly be tried by any reference to the rules or the pro- 
prieties appliotble to establishments of a different nature, or by 
anal<^es drawn from offices of a different character. The fun- 
damental principle of the Scottish Church is, that every man ad- 
mitted into ecclesiastical orders — every man ordained as a minis- 
ter—must be ordained as actually the minister of some parish, or 
of a chapel 'district precisely fixed. There is no such thing in 
the Church of Scotland as ministerium vagum, either practically 
or theoretically — ^no such thing as plurality of benefices — ^no such 
thing as a minister ordained without a cura animarum, to which 
he is appointed for his life* 

< From this principle, fixed at the Reformation, difficulties have 



252 



DECISIONS OF THE 



No. 62. 



10 Feb. 1839. 



Luke and 
Others v, Hun. 
ter and Others. 



naturally arisen, when ministers fall into great age or infirmity. 
These difficulties are lessened by the practice of {^lowing candi- 
dates for the ministry to preach after being licensed by a Presby- 
tery. But these are not, and cannot be ordained ministers, ena- 
bled to administer the sacraments, and to discharge other duties 
dependent on ordination; and still, therefore, in many special 
cases, a different remedy was required. That remedy was found, 
at an early period, in the plain, simple, and very sensible expe- 
dient of the presentation and induction of a fit person into the con- 
dition of a minister of the parish for his life, as assistant and suc- 
cessor to the existing incumbent The person so appointed be- 
comes immediately an ordained minister of the church, subject to 
all the obligations implied in the character. He is received as a 
member of the Presbytery and Synod, entitled to vote whenever 
the principal is absent, and eligible as a member of the General 
Assembly. These things are beyond all doubt, and are sanction- 
ed at least by a century of undisputed practice. 

< It is manifest, therefore, that the institution of assistants and 
successors in the Church of Scotland, introduced from a necessity 
inherent in the very constitution of the Church, and for the ad- 
vantage of the people, has no resemblance or affinity to grants of 
offices in reversion, and is essentially different even from the ap- 
pointment of assistants and successors in any other case. And it 
must be kept firmly in remembrance, that it is attended with the 
most important securities against abuse. The consent of the ex- 
isting minister, at least if he is capable of consent, is indispensa- 
ble. The patron of course must consent ; but when these two are 
agreed, the consent of the Presbytery, and, if called for, of the 
Synod and General Assembly, must be obtained. The whole 
question of reasonable necessity, expedience and propriety, un- 
doubtedly belongs to these courts ; and if they think the measure 
improper, or an abuse of the patron's right, they certainly have 
power to put a negative on the proposal. And practically the 
statement of the pursuers, as to the small number of such appoint- 
ments, compared with the number of livings and vacancies, while 
the legality of them has been recognised for a century, demon- 
strates that these checks have been effectual, that the practice 
has been kept under due control, and that there is no evil or 
abuse involved in it. 

< It is admitted on the record, that there b a series gf examples 
to the number of forty-three, well authenticated, of assistants and 
successors so appointed, from 1742 to the present time. There 
is reason to think that the practice was introduced much earlier. 
See note in Connell on Parishes^ 515. These examples run over 



No. 62- COURT OF SESSION. S53 

the whole church and country. They comprehend royal burghs 10 Feb, 1838. 
as well as country parishes : — Glasgow, Dum£ries» Montrose, ^^y^^ 
Cupar, Ayr ; and one of the last instances, tiiough in a country ^^^ uun- 
parish, was by the presentation of the Town-Council of Edinburgh, ter and Othen. 
In not one of all die cases was the legality of the appobtment, as 
matter of civil right, disputed. The Lord Qrduuury holds this 
alone to be dedsiye of the general question, — an admitted and 
unchallenged practice over the whole church during ninety years. 
It might have been more extensive if any serious abuse had been 
practicable ; but if the control is efficient, the extent of the prac- 
tice is of course limited by the necessity. 

^ But there is much more in the case. In the first place, the le- 
gality of such appointment has been recognised by the church 
courts. The assistants and successors have not only been duly 
ordained and inducted, but they have been recognised as members 
of all the church courts, exercising the most important rights, both 
ecclesiastical and civil. They have been incorporated in the con- 
stitution of the church, and public acts to which they are parties 
have been recog^nised in all the civil courts. In the next place, 
they have been expressly acknowledged as holding a legal status, 
both by the Court of Session and by the Court of Teinds ; see 
CanneB on Parishes^ 517-8, Case of Cadder; Muir v. Dunlop, 
Dec. 9, 1791 ; and Campbell v. Stirling, March 4, 1813« And 
see the case of Melrose, CanneU on Tithes^ i. 455, where a process 
of augmentation having been brought by the principal minist^, 
and the augmentation having been refused to him, the Court, on 
a petition by the assistant and successor, and with the consent of 
the heritors, awarded an augmentation to him out of the teinds. 
He could not indeed have raised the process, because he is only 
condition^y vested in the benefice, as decided in Shaw v. Heri- 
tors of Roberton, Jan. 29, 1806. But his character was clearly 
recogfnised as a lawful status, otherwise no consent of the heritors 
would have warranted the proceeding. 

< In the third place, these assistants and successors have been 
recognised in various Bridsh statutes. They are so in the acts 
establishing the Widow's Fund, 17 Geo. II. (1744,) cap. xi. 
sect 11 ; 22 Geo. II. cap. 21 ; and 19 Geo. III. cap. 2. sect. 9. 
Their status as churchmen is therefore sanctioned by statutes in 
full force ever since 1744. They are to be deemed and taken to 
be ministers to all the purposes of the acts. But the later statute 
of 48 Geo. III. cap. 50, relative to grants of offices in reversion, 
is still more important, as containing an express exception from its 
provisions, which, it is assumed, might otherwise have been taken 
to apply to the case, ^ that nothing in this act shall extend, or be 

VOL. VII. s 



264 DECISIONS OF THE No. 62. 

10 Feb. 1832. « construed to extend, &e., to prohibit the appointment of aasiS" 

^^^^^'^"^ '* tants and successors to the parochial clergy of Scotland.' 
Otbera V. Hun- * I^ Seems to the Lord Ordinary to be quite impossible, in the 
tn and Others. < £gice of these facts, and without a single authority or decision on 
' the point, to maintain that such appointments, when duly pro-' 

< ceeded in, are illegal. The passages in Erskine and other authors 
^ which are quoted, only announce the undoubted general truths 

< that no patron can present to the expectancy of a benefice. Thi» 
^ plainly does not contemplate the special case of the immediate in-* 
' duction of an assistant and successor into the whole duties of the 

* parish, on a declared necessity, by the proper authority. That ia 

< not a presentation to an expectancy, bat to an immediate cure, 

< and) at any rate, it is a special case, fully established by a long- 

* usage. 

< Neither do the cases referred to by the pursuers appear to hare 

* any material application to the question. The only one to which 
^ it seems necessary to advert, is that of Arnott, &c. v. Flints, &c., 

< as decided by the House of Lords 26 May 1809. Though that 
' case was much relied on by the pursuers, it humbly appears to the 

< Lord Ordinary that it can afford them no aid. For, Ist^ It was 

< the case of a professor in a university. That is altogether diffe- 

* rent from the case of a minister of the church ; it has not in it the 

* important quality, that without ordination the full duties of the 

* place cannot be performed. Neither has it the same sanctions ; 

* and each university being independent of all the rest, may be only 

< affected by practice within itself. 2(/, The very case pf assistants 

* and successors in the ministry is expressly acknowledged as be- 

* yond dispute lawful by both the parties in that cause. 3dy It was 
' the case of a professorship where the other professors were the 
^ patrons, and where, consequently, there could be no jurisdiction 

* to control an abuse. 4thy The King being the visitor of all col- 

< leges, it might be competent to the King's courts to control the 

* exercise of the right of patronage in such a case, and more espe- 

< cially to determine whether it was warranted by the terms of the 

* endowment, which was one of the points put in issue. 5/A, It was 

* plainly a case of the grant of an expectancy ; for the very terms 
• * of the appointment shewed that it was not intended or expected 

* that Dr Flint junior should immediately, or at any given time 

* while his father lived, enter on the duties of the office : And, 6tft, 

* It was in its circumstances liable to very serious objections. But 

* while these considerations plainly place the decision, the particuhir 

* grounds of which are nowhere reported, on a footing which en< 

* tirely removes it from the principles of this case, it is to be re- 

< membered, that it was only in the previous session of Parliament 



No. 62. 



COURT OF SESSION. 



255 



(1608) that the statute 48 Geo. III. was passed, in which all lOFeb. laat. 
g^rants of offices in reversion were prohibited, with the express ex- ^^py^^ 
ceptkiik of the appointments of assistants and successors to the pa- ^* ^^^ 
roohial clergy of Scotland, while no such exception was made of Hunter imd 
similar appointments to professorships. Othcn. 

^ If the general plea of the punoers against the legality of such 
presentations cannot be sustained, it setms to be clear that there 
is no specialty which can avail them. The Town*Council of Edin- 
burgh have the same powers as other patrons ; and the question 
being onie which relates to the church at large, it can be of no 
consequence whether the practice has been followed, or has been 
frequent in Edinburgh or not. What has been law for Glasgow, 
Ayr, &c, and generally over Scotland, must be law also with re- 
gard to the powers of the patrons of Edinburgh in this matter. 
They have power to present upon actual vacancies by death, &c., 
and they have power to present assistants and successors when 
the cases which render this necessary or expedient arise. And 
the Lord Ordinary can see no evil or danger in this. For, the 
question of expediency being subject to the control of the Pres- 
bytery when the case does occur, the Council for the time is just 
as competent to present a fit person for the benefit of the public, 
as any Council which succeeds them can be presumed to be. If 
they do not take due pains, that is their &ult, and, in a question 
of law, is not to be presumed. They are to exercise the power 
(as Dr Simpson expressly asked them to do) precisely as they 
would if there was a vacancy by death. 

* As to the statement of this being a collegiate church, Dr Brun- 
ton being fully competent to the whole duties, &c. the Lord Or- 
dinary thinks them altogether yrelevant in this Court They 
were very fit to be stated in the Presbytery, if the pursuers thought 
them of importance ; and though the pursuers did not state them, 
it has been stated by the defender, that they were fully canvassed 
in all the church courts. As the church or parish has two minis- 
ters by law, it must be presumed that two in full orders are neces- 
sary ; and this may well be, from the nature of thie population, 
though the parish be not large. Dr Brunton is also a professor in 
the University ; but though he had not been so, he had a right 
to an effident colleagpie, and Dr Simpson was eighty-five years of 
age. 

' The church court, therefore, having confirmed the appointment, 
and ordered the induction, the Lord Ordinary is of opinion that 
all questions of particular expediency are excluded, and that the 
case must stand on the same footing as if it had arisen on the last 
presentation of an iusistant and successor, given by the Town- 

s2 



Cooru 



256 DECISIONS OF THE No. (52. 

10 Feb. 1888. * Cottocil of Edinburgh, or on such a presentation by any other pa- 
W yi*^ < tron, which had been sustained by the Presbytery.* 

Luke and 
OtherB o. Han- 

tef and Others. The puisuers redaimedf but the Court unanimously adhered. 
Judffment. i^^rf GtUieSj while he concurred in the interlocutor under review. 

Opinion of and hi the very able opinion which had been expressed by the Lord 
Ordinary, could not go the length of saying that it was altogether 
incompetent for this Court to judge of the question of expedieney. 
The church courts were certainly the judges of that in the first in- 
stance ; but if any thing like a mere job was made out, he was not 
prepared to say that this Court were precluded from considering the 
question of expediency. 

In this remark the Lord Presidera concurred. 

Lord Momrtifft Ordinary. Act. S^L^Chn. fCoekhimJ, Fur^, P. Etbtrtmm. 

DanidFiaher, S. S. C. Agent. Alt. Dean of Fac f Hope, J M, P. Bnwm. 

Hunter, Campbdlff Caihcart, Agents. D. Clerk. 

T. 



SECOND DIVISION. 
No. LXIII. 14 February 1832. 

The lord ADVOCATE 
cyainst 
Thb MAGISTRATES OF KIRKWALL. 

Expenses. — King. — In a law^suit carried on by the Lord Advocate 
or the Officers ofState^ a$ representing the King^Jbund ineampetent 
to give decree for expenses against the Crown* 

An action was raised by the Lord Advocate, on behalf of his 
Majesty, by virtue of letters under the sign-manual, addressed to 
him for that purpose, against Lord Dundas and the Town of Kirk- 
wall, respecting the patronages of the churches in Orkney, which 
formerly belonged to the Bishop, and were now claimed by the 
King, as coming in his right In defence against this daim Lord 
Dundas founded upon his infeftment, followed by prescriptive pos- 
session ; and the town of Kirkwall produced a Crown charter, coa- 
taining a valid disposition and grant of the patronage which belong- 
ed to the community of the burgh. The defences for both parties 



No. 63. COURT OF SESSION. 267 

were, after some Ktigation, altimately sustained both in tbb CouH; u Feb. 1638. 
and in the House of Lords. ^*"^V^^ 

When the cause was returned to this Court, the defenders en- ^^ Advocate 
rolled it, for the purpose of making a demand for their expenses, of KirkwaU. 

The Lord Ordinary took the cause to report verbally as between 
the Crown and the Magistrates of Kirkwall, and stated, that the 
nature of the action against them, and of their defence, had been 
such, that if the action had been between two private parties, there 
could have been no doubt but that the defenders would have been 
entitled to their expenses; and that his object in reporting the 
point was to get a judgment of the Court on the competency of 
giving an award of expenses, in any case, against the Crown. 

The Magistrates of Kirkwall pleaded — That the incompetency Defendcw* 
t)f awarding expenses against the Crown, in the Court of Session, ^^ 
had never yet been decided in Scotland; and that, prior to the Union, 
it was not uncommon to do so ; neither had that treaty made any 
change in the power of this Court to deal widi the Crown as with a 
private pursuer : That the rule in the Court of Exchequer was 
* borrowed from English practice, which ought not to be adopted in 
this Court, in a matter which, even in that country, was considered 
as a great hardship and oppression on the subject, rather than a public 
benefit ; and that public boards, such as the Boards of Ordnance, 
Customs and Excise, which in reality pursued for the interest of the 
Crown, had repeatedly been found liable in expenses, like other 
litigants. 

The Lord Advocate answered — That the rule was perfectly esta- Punuer't 
blished, both in the Courts of Exchequer and Justiciary, that the ^^^^ 
Crown never demanded, and could not be subjected in expenses ; 
and no instance could be produced since the Union of a claim simi- 
lar to the present having been sustained in the Court of Session. » 
Tlie question of expenses of prosecutions by public boards are in 
general regulated by the statutes under which they act ; and, at all 
events, they are not af all analogous to prosecutions by the Officers 
of State, or the Lord Advocate, at the direct instance of the Crown. 
There is in fact no party against whom a decree for expenses could' 
be enforced. 

The Qmrt was unanimously of opinion, that the demand was judgment. 
both unprecedented and incompetent ; but — 

Lord Meadowbank intimated, that a distinction might perhaps be Opinion of 
taken between law-suits instituted by the King through his Officers, ^"^^ 
regarding property which belonged to \i\m jvre privato^ and ques- 



268 DECISIONS OF THE No, 68. 

14 Feb* 18SS. tions which related to the public or hereditary revenue of the 
^-•t*^ Crown. 

Lord Advocate 

9* Magistratet 

of Kirkwall. Lord Ordinary, MaekuaU. Act. SoL^Qtn. (CodAwm.) W. H. SmidM^ Accnt. 

Alt. RmOim^fiard. 

V. 



SECOND DIVISION. 

No. LXIV. 14 February 1632. 

JOHN HAMILTON, Commok Agekt ik the Ranking and 

Sale of Gairdoch, 

again^ 

BENNET AND Others. 

Leoact (special and general). — A testator having conveyed 
the whole of his property to trustees, with instructions to pay his 
debts and legacies^ both those specified in the deed and those which 
he might thereafter grant, with authority to his trustees to setl 
certain portions of his heritable estate ft^r the purpose of paying 
these debts and legacieSf^and to vest the surplus, (qf such portions 
directed to be sold, J if any, in the purchase qf land, to be entailed, 
along with the rest qfhis heritable property, by the trustees, upon 
a certain series qf heirs ; and the price of the part qfhis heritable 
property thus directed to be sold having been insufficient to dis* 
charge his debts and legacies i-^ound, that all the legacies, both 
those contained in the trust-deed, and those subsequently granted 
by codicils, were burdens upon the whole trust^^state, and that the 
residue to be entailed could only be taken after all these legacies, 
as well as the debts, were discharged. 

The late Mr Ogilvie of Oairdoch execute4 at trust-deed of settle- 
ment, by which he oonyeyed hia whole property, heritable and move- 
able, to trustees, for the purposes set forth in the deed^ viz. to 
pay his debts and a jointure to ^is widow, and provisions to his 
children in the event of his marriage ; also for the payment of certain 
legacies therein specified : * Item, For payment of all other annui- 

* ties, legacies or donations which I may hereafter grant to any 

* person or persons, by a regular deed, or by any writing, instruc- 

* tion, or letter to my said trustees under my hand, at any time du- 



No. 64. COURT OF SESSION. 259 

* ring my life, or even on deathbed.' The next clause of the deed 14 F«l>, 1832. 
authorised and appointed the trustees to sell certain portions of the ^^"y^^ 
landed estates therein specified, and directed them to invest the ^T^^°' ^^' 
surplus of the price to be obtained by the sale, if any, after pay* Others, 
ment of his debts and legacies, whether granted by the deed or by 
any subsequent writing, to be reinvested in land to be entailed 
along with the rest of his estate. He then directed the whole re- 
sidue and remainder of his lands and estate to be entailed upon a 
certain series of heirs, who were to become bound to use the name 
and arms of Ogilvie of Gairdoch. The deed contained the usual 
powers of alteration and revocation during the granter^s life. 

After the execution of this deed, the testator made several altera- 
tions, both in the nomination of the trustees and in the order of 
succession of the heirs of the tailzie. He also left, by different 
codicils, several additional legacies to Mr and Mrs Bennet and 
others. 

On his death all these deeds were found in his repositories, along 
with several letters of directions to his trustees, containing a mi- 
nute specification of the lands directed to be sold, upon which the 
truster apparently placed rather an exorbitant value. 

When Mr Ogilvie died his aJBhirs were found to be in great dis- 
order, in so much that a ranking and side was brought of his estate 
by the Bank of Scotland, as one of his creditors. In 1830 all the 
lands directed by him to be sold were purchased at a price amount- 
ing to near L.60,000 ; but this sum was insufficient to discharge 
the whole of his debts, and it was found necessary to proceed, under 
the ranking and sale, to sell part of the remaining property, in 
order to pay off the debts. 

In the ranking on the estate, Mr Bennet and others, who were punuen' 
legatees under the codicils executed subsequent to the date of the ^^^"^ 
trustnieed, claimed to be ranked for their legacies on the general 
estate of the truster, after his creditors, and pleaded^ That it could 
only be the residue of his estate, after full payment of the legacies, 
that was to be entailed ; and that, although the lands directed to be 
sold were insufficient for the purpose of paying debts and legacies, 
the legatees could compel the trustees to sell so much of the resK 
due, directed to be entailed, as was required to pay the legacies ; 
Erskine's Trustees v. Wemyss, 13 May 1829. 

The heirs of entail ansivered — That the provision of the subjects Defcndin* 
which Mr Ogilvie directed to be entailed, in so far as they consist ^^^ 
of the lands, &c. specially described in the trust-deed, was of the 
nature of a special provision or legacy, and was consequently pre- 



360 DECISIONS OF THE No. 64. 

14 JH. 1692. femUe to sueh general legaciea as those claimed by the legatees, 
^^V^^ which could only rank on the free funds, viz. those which were ap- 

^I^Duet imd P^™^ *o ^^ payment of debts and legacies, after payment rf 
6th«rs. the former. 

The common agent in the ranking found, < That these legatees 
f may rank upon the price of the lands which have been sold, pes- 

< terior to the onerous creditors of Mr Ogilvie, but cannot be allow- 

* ed to rank upon the rents or price of those lands which were or- 

< dered by Mr Ogilvie to be entailed.' 

The legatees objected to this judgment, and the Lord Ordinary 
altered it by the following interlocutor : ^ The Lord Ordinary ha- 
^ ving resumed consideration of the debate, and advised this branch 

< of the process. Finds, that the late Mr Ogilvie of Gairdoch conveyed 

* his whole heritable and moveable property to trustees, by a deed, 

< in 1798» for payment of his debts, and certain annuities, l^pftcies, 

< and donations therein specified : * Item^ For payment of all other 
<< annuities, legacies or donations which I may hereafter grant to 
<' any person or persons, by a regular deed, or by any writing,' &c« 

< That the trustees were authorised to sell certain parts of his heri- 

* table property specially enumerated, ^ and to apply the price in 
" payment of my debts, and of the legacies and donations herein 
^< after mentioned, and of all other l^acies and donations which I 
*< may hereafter grant :' That the deed fitrther provides, ^ That my 
« trustees, after payment of the. expenses to be incurred in the exe- 
<^ cution of this trust, and the debts due by me, the legacies and 
<' donations hereby granted, and all other legacies and donations to 
<< be hereafter granted by me as aforesaid, may lay out and employ 
<< the surplus, if any shidl be, of my personal estate, and the pro* 
<< duce of my land estate, in the purchase of lands, and thereafter 
<^ execute a valid entail of the lands so to be purchased, and of the 
<< whole residue and remainder of my lands and others herein par- 
<^ ticularly and generally before mentioned, to and in favour of,' 

< &c» : Besides his liferent, the truster reserved power to sell and 
/ burden the subjects at his pleasure, as well gratuitously as for 

< onerous causes, and also to cancel, revoke, or innovate the trust- 

< deed : Finds, that subsequent to its date, Mr Ogilvie, by various 
' codicils, left instructions to pay legacies to various persons who are 

< now claimants : Finds the instructions to entail the whole residue 

< and remainder of his lands, beyond those specially -enumerated 

< which were to be sold, cannot be construed to imply a special pro- 

< vision or conveyance to the heirs of entail of specific lands, enti- 
^ tling them to plead that it must be preferable to general legacies ; 

< and although instructions have not been given to sell lands suffi- 

< cient for payment of these legacies, it must be presiuned that this 



No. 64. COURT OF SESSION. 261 

bfls ariflen from his not sapposiog that his pei^onal funds, and lands li Feb. i^3S. 
sold, would fidl short of the sum necessary for fuIBUing all the ^""^^v^*^ 
purposes of Ihe trust, and not that it was with the view of prefer- ^^^'^' 
ring the heirs of entail at all events, to the disappointment of le- otbcn. 
gatees subsequently jayoured by him : Therefore finds, that the 
lq;atees are entitled to payment out of the trust-estate, and the 
residue to be entailed is only after all the other purposes of the 
trust have been executed ; and ordains the common agent to alter 
the order of ranking in terms of this interlocutor, and decerns/ 

The common agent redaimed^ but -the Court, (Lord Cringletie Judgmenu 
dissenting,) refused the note. 

7%e Lord Justice^ClerL — ^I have no doubt that the interlocutor is Opinion of 
well founded. On looking at the terms of the deed, I find that the ^^"^* 
specific purposes of the trust are set forth, viz. first, to pay debts, 
and, secondly, the legacies which might be either provided in the 
deed, or by subsequent writings. It is pretty evident, indeed, from 
the memorandums left by the truster, that this gentleman appears 
to have estimated his property at a greater value than what it has 
brought; and no doubt there are special instructions to sell parti- 
cular lands for the purpose of paying his debts and the legacies ; but 
I cannot find in the deed any limitation or instruction that these 
legacies shall not be paid out of the reserved lands, in case that 
which was directed to be sold should turn out insuflficient for the 
purpose. 

Lord G&fi&e.^-I am of die same opinion. I cannot see how the 
doctrine of a special legacy can apply to this case ; for, by the very 
concepti<m of the deed, it is impossible that this, which is called a 
special legacy, viz. the residue of his estate, can exist till all the 
other legacies are paid. I should be sorry to go at all, in such a ques- 
tion, upon any opinion which I may form of the presumed intention 
of tiie truster. But even if it were competent to do so, I really can- 
not see in the circumstances any thing to lead me to tiiink that 
he intended to favour the heirs of entail in preference to the lega- 
tees ; or any elements from which I can form an opinion of his in- 
tention one way rather than the other. 

Lord^ritiffletie. — I am of a different opinion, and agree with the 
reclaimer, that this provision of the lands directed to be sold must 
be taken as a special legacy. It is very true, that the deed con- 
veys the whole lands and estate, in itiie first place, to his trustees, 
but it is under a special instruction to them to reconvey the lands 
directed to be entailed to the heirs of entail. I look upon this as a 
special donation to these heirs in tiieir order. Could the legatees 
take the furniture in the house of Carron, for instance, or any of . 



262 



DECISIONS OF THE 



No. 64. 



HamilioD, &c. 
V. Bennet 
and Others. 

Opinion of 
Court. 



U Feb. 1839. the Other subjects wUch the truster has q)pointed to be made over 
to particular persons, in payment of their legacies, merely upon the 
ground, that all these subjects are conveyed to the trustees, in the 
first instance, under burden of the purposes of the trust ? I think 
not ; and, therefore, I go entirely on the ground, that this proTision 
of the lands directed to be entailed is a special donation, and con- 
sequently not liable to be burdened with any general legacies. 

l/yrd Meadowbank. — I concur with the majority of your Lord- 
ships. No doubt the provision of the lands to be entailed is a spe- 
cial provision ; but it is a special provision, burdened, by the very 
terms of the deed, not only with the debts of the testator, but also 
with all the legacies which were either included in the settlement, 
or which he might afterwards leave ; for it is only the residue of 
his lands and estate which the trustees are directed to entail. 



Lord Ordinary, Medwjfn, Act JCm^ and MankaXL Alu Dum qfFae. (HcftJ 
and Andeiwn. John HamUUm and Andrew ScoUt Agenti. T. Clerk. 

u. 



FIRST DIVISION. 



No. LXV. 



17 February 1832. 



JOHN HAMILTON MACK 

affainst 
JAMES ALLEN and ROBERT SIMPSON. 



Reparation. — Damages. — Fotmdj that the proprietor oflands^ the 
minerals of which were let to a tenant j was primarily liable to another 
tenant for the value of a horse, and the damage sustained by his loss, 
the horse having been killed by falling into an old ironstone pit en 
the lands, which had not been sufficiently fenced. 

The respondents, Allen and Simpson, brought an action before the 
Sheriff of Lanarkshire against the advocator Mack, as judicial fector 
on the estate of Cliftonhill, in which they set forth, < That at a public 

< roup, the complainers took from the said John Hamilton Mack a 

< pasture field on said estate for the current year, in which they in- 

< tended to graze a number of horses : That upon the evening of 

< Sunday the 24th, or morning of Monday the 25th day of May 

< last, one of the horses which grazed in said field, and belongmg 

< to the complainers, went amissing, and, on a search being made. 



No. 65. COURT OF SESSION. 263 

it was disoovered to have fidlen into an old ironitone pit, which is 17 Feb* 1032. 
situated on the said estate of Cliftonhill. about twenty yards from ^^y™ ^ 

Made ti Allen 

the compbdners' park, and to hare been killed : That the pit ^^ simpsoo. 
into which said horse fell is situated on the side of the turnpike- 
road leading from Edinburgh to Glasgow, and is within less than 
one 3rard from the side of that r^oad : That there was no fence 
surrounding the mouth of said pit at the time, or betwixt the said 
turnpike road and pit : That it is the established law of Scotland, 
that when any pit is disused, the proprietor of the land is bound, 
either to fill up such pit, or to surround it with a proper fence, so 
as to prevent any occurrence similar to the present, and the party 
sustaining any loss or damage through the neglect of a proprietor 
to obey that law is entitled to compensation for such loss cmt da- 
mage : That the oomplainers have sustained considerable loss and 
damage from the loss of their said horse, besides its actual value,' 
&c. and concluding that the defender should be ordained to pay the 
value of the horse, and damages, &c. 

The main defence was. That, assuming that the complainers were 
entitled to damages for the injury which had been done, they could 
not competently be claimed from the defender, as representing the 
prq>rietor of the land, but from the tenant to whom the minerals 
were let, and to whom the pit truly belonged. It was he who had 
put down the pit, and, for anything known to the defenders, it may 
have been in a working state, or at least left open for his operations* 
But it cannot be maintained that a proprietor, who lets the minerals 
on his estate to a tenant, is liable, during the currency of the lease, 
for any omission on the part of the latter in not fencing his pits du- 
ring the currency or subsistence of the lease. A master has been 
found liable in damages caused by the negligence of his servant, in 
the performance of work committed to his charge, but a landlord 
and tenant stand in very different relative situations. The act of 
the servant is, in law, considered the act of the master, in matters 
entrusted to him ; but those of a tenant, during the currency of his 
lease, are exclusively his own, and for them the proprietor cannot 
be held responsible ; and even a master is not, in all cases, liable for 
the conduct of a servant, or for accidents happening under his opera- 
tions; Linwood v. Hathom, 14 May 1817, affirmed 19 March 
1821. 

Answered — The pit in question having been left wholly unpro- 
tected, the defender (as representing the proprietor) is liable for 
the price of the pursuer's horse, and for damages. The owner 
of die land, who, by the result of his operations, has made it 
possible for third parties, pursuing their lawful occupations, to 
suffer injury, is undoubtedly responsible for the consequences of 



264 



DECISIONS OP THE 



No. 65. 



i7 Feb. ISdK his criminality ; Black v. Caddell, 9 Feb. 1804, M. 13,905 ; and 
^^""■^V^*^ he 18 equally liable for saeh neglect on the part of hig tenant as 

aodTsimpMlir.'' ™*y ^^^ ^ *^® injury of third parties. In the present case, 
therefore, the defender is liable to the pursuers in the first in- 
stance, and may afterwards have his relief against his tenant, if 
there be just gprounds for it ; but the pit had not been worked in 
for many years, and the moment the tenant desisted from working 
it, the landlord was bound to see that the public were protected *. 
After advising a proof, and other procedure, the Sheriff decern- 
ed against the defender for L.2d, (the sum of L.15 being for the 
value of the horse, and L.8 for damages,) and for expenses; and 

In an' advocation at the instance of the defender Mack, the Lord 
Ordinary < Finds, that the horse of the respondents, mentioned in 
the pleadings, was killed by fiilling into an old ironstone pit on 
the estate of Cliftonhill : That the pit was situate on the side of 
the turnpike road from Edinburgh to Glasgow, and within about 
a yard of that road, and that it was not fenced in any way except 
by some rotten boards laid over the mouth, and partially covered 
with rice or spray : Finds, that the averment of the respondents, 
that the horse was worth L.15, is not distinctly denied, and that 
no proof to the contrary is offered : Finds, that the respondents sus- 
tained damage, by the want of a horse for four days, to the amount 
of L.8; and therefore remits simpliciter to the Sheriff, and de- 
cerns : Finds the advocator liable in expenses both in this and in 
the inferior court, and remits the account thereof, when lodged, 
to the Auditor, to be taxed.' 

* Note. — It is assumed, in the advocator's pleadings, that the pit 
was worked, at the time of the accident, by Messrs Dixon, and 
that they were bound to have it fenced; but the averment as to 
the working is intentionally equivocal, and it is disproved by the 
fiict that the pit was full of water when the horse fell in. The 
sum allowed by th^ Sheriff in name of damages appears to be 
large, but the advocator has afforded no data for reducing it He 
has failed to prove that another horse might have been hired to do 
the work for four days at a less sum, or that the men thrown idle 
might have been otherwise employed, so as to diminish the loss.' 



Judgment. 



To this interlocutor tlie Court adhered, after hearing counsel for 
the parties, on a reclaiming note for Mack. 

At the advising Lord Balgray said, that there coidd be no doubt 
that the pit ought to have been protected to prevent accidents, and 

* Thera were various specialties regarding the state of the pit, and the condltioos of 
the Tease, and other pteas in law founded on by both parties, but the judgment of the 
Court proceeded upon the general ground above stated. 



No. 6?. COURT OF SESSION. 265 

where a proprietor let the coals or other minerals upon his estate^ 17 Feb. las?. 
it was his duty to see that the works were properly fenced. In the ^"^V*^ 
general case, therefore, he was primarily liable, though this might and^simpson. 
be altered by the conditions of the lease, or by other drcomstances, tT'^ 
of which, perhaps, the ISieriff ought to have allowed a proof. But, q^^^^ ^ 
as the case stood, his Lordship was inclined to adhere. 

The Lord President observed, that in the case of damage done 
by a coachman or carter, it was the master who was primarily lia* 
ble ; and in the same way the proprietor of lands, in which coal»pits 
or other works were carried on, was bound to see that they are mx£^ 
iiciently protected for the safety of the public. 

Lard Gillies also had no doubt on the general ground, and in the 
absence of any specialty, that in the case of a person losing his horse 
by falling into an unprotected pit, he was entitled to go directly 
against the proprietor of the lands for his relief, leaving the ques- 
tion of ultimate liability to be settled between him and his tenant 

Lard Cor^imue, Ordinary. For Uie Advocator, Jameton. Woihtrspoon ^ 

Mock, W. S. Agenti. Alt. M. P. Bhnnu T. 4* J. DitHmg, W. & Agents. 
B. Clerk« 

C. 



SECOND DIVISION. 
No. LXVI. 17 February 1832. 

TURCAN AND Others 

offatnst 

J. COX AND A. MEGGET. 

• 

Bankrupt.— SfiguESTRATioN. — Statute 54 Geo. Ill, c. 137. — 
I. Where there is a donble election of commissioners on a bankrupt 
estate^ neither set of candidates can lawjvUy undertake the office wiAr 
out obtaining confirmation^ tipon t/ieir petition to the Court for that 
purpose ; and^ therefbrcy although the one set may appear as object- 
ors in such application of their opponents^ the success of their opposi- 
tion will not obtain confirmation of their own electionj unless aecom^ 
panied by a counter petition. 

IL A claimant in a sequestration^ as assignee in trust for creditors 
against whom the trustee had raised an action^ concluding for a con* 
siderabU sum, upon grounds whichf if good^ would also materially 
affect the claim^ found to be disqtialijiedfrom being a commissioner. 



266 



DECISIONS OF THE 



No. 66. 



17 Feb. I8S8. Xhe applieation of the trustee, for Gonfinnation of commissioneTS 
^^*^V^^ on the sequestrated estate of Stead and Paterson, having been found 
Others v. Cox incompetent by the interlocutor of the Lord Ordinary, which was 
andMegget. adhered to by the Court, (see Cox r. Stead and Others, 10 Dec. 
1831, Fac. ColL)j a petition was presented for confirmation, in the 
names of James Turcan, William Thomson and Andrew Bell 
Mid>on, one set of the candidates for the office. Answers were 
put in for John Cox and Aitkin Megget, two of the opposite can- 
didates upon whom the petition was served ; and afterwards, the 
Ordinary ordered cases to the Court *. 



lUspondenu* Obfeded by the respondents. — 1. The petitioner Mr Turcan, 
Objections. ^j^^ ^ assignee in trust for creditors, (Misses Stead,) is ineligible. 



* ' Hifl Lordship added the following note : The Lord Ordinary is in difficultj, and 

* therefore pronounces no judgment. The interlocutor of the Court may imply, and 
' so it is represented by one of the parties, that, in the case of a competition for the 

* office of commiuioners, it is necessary that there should be an application for con- 

< firmation by the opposed candidates* The Lord Ordinary finds no such thing in 
' the statute ; and though the interlocutor seems to refer to the act of Parliament, he 
' does not think that this was the meaning of it. But the parties differing as to the 
' views of the Court, and the precise objection being raised, that the respondents have 

* no title to object, because they have not presented a petition for confinnation, (to 
' which proposition he is quite unable to assent,) he thinks it his duty to report the cause. 

' In other respects, the case seems to depend on the following very important 
' points : 

' On the one side— 

' I . Whether a creditor, who happens to be nephew of the trustee, is thereby ob* 
' jectionable as a commissioner. 

' S. Whether the cautioner of the trustee is objectionable. 

' On the other side — » 

' 1. Whether a person, claiming as a creditor, for whom the debt has been pur. 

* chased and assigned, under a guarantee against all eipense, is qualified to be elected. 

' N» ^— The fact of guarantee denied, but the purchase for the purpose not ap- 
' parently disputed. 

* 8. Whether an assignee in trust is eligible, where the creditor, being a woman, 
' would not be eligible. 

' 5. Whether there is ground for inferring an adTcrse interest in the Misses Stead, 
' and, of coursCy in their trust-assignee, sufficient to disqualify him from being a 
' comm'issioner. 

' The Lord Ordinary is inclined to think, that the case mainly depends on this last 

< point ; and, as it is stated, and, apparently, is according to die fact, that nearly all 

< the creditors who voted for the commissioners recommended by the Misses Stead 

* have, in fact, been created by themselves, it is difficult to escape from the belief^ 
' 4faat the object is to quash the action which has been raised against them by the 
' trustee. He may be right or wrong in that measure ; but this is not a mode of 
' stopping it which can be entitled to favour. 

* It does not appear that, in this sequestration, there is much room for choice of 

* impartial commissioners : two named appear to be quite clear of objection-— Mr 

* Mabon and Mr Megget, 



No- 66. COURT OF SESSION. fl«7 

He is not a creditor, but the mete nnmdatary of a creditor, who 17 Feb. 18S2. 
may withdraw the mandate at pleasure ; Bettf iL 385 ; Berry t;. ^"^y^^ 
Whyte and Ferrier, 1 Feb. 1826, S. ^ D. SZT^Cox 

2. This indindaal is further ineligible, on the ground, that his and Megget. 
constituents, being women, would not themselves be eligible to the n^p^ndenu* 

office of commissioners. Objections. 

3. Mr Thomscm, another of the petitioners, is also disqualified, 
in respect, both that luadaim, which only amounts to L.20, 6s., was 
purchased by the Misses Stead, and given to him for the very pur- 
pose of enabling them to nominate him to the office ; and also^ that 
he holds from these ladies a guarantee, that he will be indemnified 
against all expenses which may be incurred in supporting his eleo* 
tion* 

4. There is an adverse interest in the Misses Stead with respect 
to the estate sufficient to disqualify their trust-assignee for the of** 
fice* The claims of the creditors who voted for the petitioners, 
Turcan and Thomson, amounted to L.2131, 16s., while the total 
amount of the claims of those who voted for die two opposite can- 
didates was L.1467, 16s. Of the former sum, the claim of the 
Misses Stead amounts to L.2077. This consists of alleged rents 
for the jeven remaining years under which the bankrupt company 
were tenants of these ladies* But the claim is excessive, and 
must, unavoidably, give rise to serious questions between Misses 
Stead and the estate. On the other hand, the trustee has raised 
an action against them in this Court, .which was signeted on the 
day of the election of commissioners, concluding for repetition of 
upwards of L.2000 of overpayments of rents, which ought to have 
formed a deduction from the stipulated sum payable by the lease, 
on account of certain valuable machinery, that was amongst the sub- 
jects originally let, having afterwards become the property of the 
company ; Campbell and Others v. M^Nair and Learmont, in House 
of Lords, 11 July 1806 ; see BeU^ ii. 367, note 2. 

Anmoered — 1. The debt in question being fully constituted in the peUdonen* 
person of Turcan, as assignee, though only in trust, there is no rea- ^"BwerB. 
son why he should not be held as the creditor to the effect <tf being 
leligible to the office of commissioner ; Bell^ ii. 342. 

2. There is neither reason nor authority for alleging that a 
woman is ineligible to such an office, and certainly the statute im- 
ports no disability of this kind ; see sect 73. But even although 
the Misses Stead were themselves inadmissible, it would not follow 
that such disability must follow the claim in the person of their as- 
signee. 

3. The purchase and guarantee said to affect the eligibility 



268 



DECISIONS OF THE 



No. 66. 



Turam and 
Others v. Cox 
anil Megget. 



17 Feb. 1832. of Mr Thomson are denied. But if the respondents' averments 
were true, the result would only be, that this party held the debt in 
trust for the Misses Stead 

4. It wiU not be supposed that Misses Stead could feel it neces- 
sary to resort to indirect means in order to quash an action so 
utterly groundless as that instituted by the trustee against them ) 
but, in truth, it is not within the statutory powers of the commis- 
sioners to effect such an object Besides, the commissioners were 
elected befdre the summons in that action was executed. 



Petitionen* 
Objections. 



Objected by the petitioners — 1. The respondents not haying, pe- 
titioned to have t^ir election confirmed, have no tide to oppose 
this application. By the 27th section of the bankrupt act it is di« 
rected, < that in case any question shall arise as to the election either 

< of the interim &ctor or of the trustee, the same shall be reported 

< to the Court of Session,' &c. ^ to decide in the most summary 
^ manner on the merits of such election ;' and by the S4th section it 
is enacted, that in the event of a disputed election of commissioners, 

* the same shall be reported and summarily advised by the Court of 

* Session, or Lord Ordinary on the Bills, in the manner before di<* 

< rected as to tiie election of interim hcU^r and trustee.' Hie es- 
tablished and invariable usage in reference to these enaetmoita isy 
that the contending parties respectively present petitions to the 
Court, stating tiiat they have been duly elected, and craving a con- 
firmation of the election. The act (28th sect) provides, tiiat * the 

* unsuccessful party claiming to be elected hcUx or trustee shall 

* pay the expenses of the proceedings/ This necessarily implies 
that both the contending parties shall apply for confirmation ; for if 
it be sufficient, where there is a double election, for the one party, 
without craving confirmation, to oppose the election of the adverse 
party, then, though his opposition were unsuccessful, he could sot, 
vi statud, be subjected in the expenses of the proceedings. Fur- 
ther, a party who has not applied for confirmation, tacitiy admits 
that he has not been duly elected, or, at least, that he repudiates 
the office. The criterion of his acceptance is a petition for confirma- 
tion ; Brown v. Dawson and Others, 25 Nov. 1809 ; White, pe- 
titioner, 28 Jan. 1824; M'Callum v. Tasker and Others, 1 Dec 
1827 ; Cox v. Stead and Others, 10 Dec. 1831. 

2. Even if the respondents had applied for confirmation, the pe- 
titioners, as having greatly the majority of votes in value, would be 
entitled to be preferred. 

8. Mr Cox, one of the respondents, is ineligible, because he is 
nephew of the trustee, and the cautioner for his intromissions ; Belly 
ii. 415. 



No, 66. COURT OF SESSION. S69 

' 4. Mr Mej^e^ tlie other reapondenty to alio inelifiU'e) becaiisei ^'^ ^^^* ^^• 
from hi» intimate eonnexion in bniinew with the tru«te^, be <9om0f '^^^"V^^ 
under tha charaoter of a confident pereon with regiurd to the latter, pulpra v!"a>z 

Amwired^l. A counter iq^plieation by the respond^nte for omif^ n^^^nw 
ination is neither required nor eanctioned by the etatute* The elep- Answers. 
don of tmetae and of commiwionere stands on a totally different fnQt^ 
ing. The former is not complete till confirmed by the Court ; iipbile 
the tiectioh of the latter is complete by the mere act of ^leption. It 
is true, tiiat when there is a contested election, the dispute mPSt bf 
setded by means of an application to the Court from one or other 
set of oommiasioners, not properly for confirmation, but to hare it 
found that they were duly elected ; but if this applieatiw is refu- 
sed, it follows, of course, that the election of the opposing party must 
stand good although they do not petition. 

2* In reality, the whole rotes for the petitioners, with a sipglo 
exception, are the votes of the Misses Stead. 

.& Unless it be supposed that the trustee is himself objectionable, 
it can be in itself no ground of disqualiiication to Mr Cox, that he 
stands in the relation of nephew to the trustee ; and it is not prer 
tended that the bankrupt act gives any countenance to such an ob- 
jection. Nor is it any objection to him, but, on the contrary, a' cir- 
cumstance in his fiivour, that he is cautioner for the trustee. 

4. The objection to the admissibility of the respondent, Mr Meg- 
get, is groundless and absurd, even if there were such connexion in 
business between him and the trustee, as alleged, but which is not 
the fact 

The Court was unanimously of opinion, that, in the case of a Opinion of 
disputed election of commissioners, by the express terms of the bank- ^^"^^' 
nipt act, the proceedings must be reported, and confirmation applied 
for, by petition to the Court, in n^me of the persons desirous of 
holding the office ; and consequently, as the respondents had not 
presented such an application, their election could not, supposing 
there were grounds for it, be declared and confirmed, so thai; the^ 
objections to the petitioners' nomination were to be considered as 
being urged by the respondents simply in their character of credi- 
tors. 

Upon the merits of the case, the Lord JuUice-Clerk s^id — The case 
of Paterson's sequestration, 15 Jan. 1812, shews the discretionary 
powers exercbed by the Court in regard to confirmation of the 
trustee's election, and I have not the lea^t doubt that the Court has 
the same powers of control over the election of commissioners as 
over that of the trustee. Now here, though the action at the in*- 

VOL. VII. T 



270 



DECISIONS OF THE 



No. 66. 



Turcanand 
Othen V* Cos 
and Meggeu 

Opinion of 
Court. 



17 Feb. 1832. Stance of the trustee against the Misses Stead was only signetedon 
the day of the election of commissioners, yet it is dear, that the 
parties knew perfectly well that the claim of these ladies was a mat- 
ter in dispute, and that the action would certainly be brought ; and 
it appears to me, that though we did quite right in confirming the 
Lord Ordinary's interlocutor in the former proceedings, yet we ought 
now to set aside the whole election on the ground alluded to* 

Lord GlenUe. — I am quite of that opinion. 

Lord CringUHe. — I am also perfectly of the same opinion. As to 
the election of the other set of commissioners, even if they had re* 
gularly applied for confirmation, the Court could not have sanctaon* 
ed their appointment, as they were not elected by a majority. 

Lord QUntee. — Yes, this would have been a sufficient objection 
as to them. 

Lord Mecidowbcmh* — I am of the same opinion ; but even if the 
respondents had been elected by a majority, yet I would have held 
there were grounds of disqualification affecting some of them. 

The Court accordingly found the whole election null and void. 



Indigent. 



Lord Moncniff, Ordinary. For the PeCitionen, Dttm ofFm* fBcp*^) GnenMdda^ 
C. J. Fox, W. S. Agent For the Respondents, P. Babatson, A. M^NeUL 

J<m€$ To^hr, W. & Agent. F. Clerk. 

S. 



SECOND DIVISION. 



No. LXVII. 



18 February 1833. 



EARL OF HOPETOUN 

against 

COMMON AGENT in Locality of Inyerkejthikg. 

Teikds. — In making iip a scheme of locality for successive augment 
tationst the conversion for each must be taken at the average prices 
of grain for seven years preceding the date of each respective aug^ 
mentation^ and not at the average of the whole years during which 
each augmentation lasted. 



In the dependence of three conjoined processes of locality for the 
parish of Inverkeithing, of successive augmentations granted in 
1794y 1807, and 1823, the common agent took the conversion of 
the Earl of Hopetoun's victual-teind for the two former augmenta* 



No. 6i. COURT OF SESSION. 271 

tions at the average of the prices for the years 1793 to 1805, both ]8 Feb. 1832. 
inclusive, for the first, aiid for 1806 to 1822, both inclusive, for the ^^»y«^ 

second. Ewl of Hope- 

toun V. Com- 
mon Agent ia 

The Eurl of Hopetoun objected to this scheme, on the ground, Locality of- 
that the rule had been fixed by the Court, in the case of Ramsay ^"^ ^ '°^* 
Irvine v. Ramsay Maule, 14 May 1794, M. 15,698, that in all such 
cases the average prices of the last seven years preceding the date 
of the augmentation should be taken. 

The common agent answered — That the rule taken in the case of 
Ramsay Irvine applied only to prospective payments ; bnt that, in 
a case like the present, where the payments were past, no &irer or 
more certain rule could be taken, than the average for the whole 
period of years during which the augmentations had been current. 

The Lord Ordinary repelled this objection. 

The Earl of Hopetoun reclaimed; and the Court, before answer, 
remitted to the Teind Clerk to report upon the practice, fitHn the year 
1794 to the present period, in making up schemes of locdity^ 
whether the average prices were taken from a series of years pre- 
vious or subsequent to the interlocutor of augfmentation. 

The Teind Clerk reported, that in Jthe period from 1794 to 1808^ 
the practice as to the manner in which victual was converted had 
not been uniform; and that, since 1808, the rule laid down by the 
statute passed in that year, for the rate of conversion of stipend from 
money to victual, and vice versa, in the case of surrender of teinds> 
&c. viz. the average fiar prices for the seven preceding years, had 
gradually come to be adopted in modifying schemes of locality *. 

The Court altered the interlocutor of the Lord Ordinary, and judgment. 
found that the conversion in the locality ought to be made accord<i> 
ing to the average fiar prices for the seven years preceding the dat^ 
of the aiigmentation. 

Lord Glerdee, — It rather appears to me that the rate of convrr- opinion of 
sion in the locality must be taken as at the date when the augmen- Court. 
tation was granted ; and I cannot see how, in that case, any other 
average can be taken, except that of the seven years preceding that 
date. 

Lord Ordinary, Newttm. Act Dean ofFac, f Hope, J Walker, James Hope, Alt. 
Skem, CvOen, Joe. Hope^ and W. Cfrienon, Agents. TeM Clerk. 

u. 

* The report by the Teind Clerk is bound up along with the session papers in this 
case. 

t2 



272 DECISIONS OF THE No. 69. 



FIRST DIVISION. 

No. LXVIII. 23 FAruaiy 1832. 

JOHN E. DICKSON 

offointt 

J. 6RACIE AND GEORGE FERGUSON. 

Procsss.' — A reclaiming note^ %toiOiout a prayer to aJter in whole cr 
in part the interlocutcr reclaimed offainety refuted as tneampetenL 

9 

This was a process of multiplepoiiiding, in which judgment was 
pronounced by the Lord Ordinary un&yourable to Mr Fergnsony 
who presented a reclaiming note in these terms : * In this case Lord 
< Corehouse, Ordinary, was pleased to pronounce the prefixed inter- 
* locutor, which the defender, Mr Ferguson, begs to submit to the 
^ review of your Lordship. In respect whereof,' &c. 

When this note was moved, it was objected that it was incompe- 
tent, as it oontabed no prayer for an alteration of the interlocutor 
reclaimed against, and therefore the Court, not being required to 
pronounce any judgment, could do nothing. 

Answered-^The purpose of the note is to review the judgment 
of the Ordinary. It has been decided in the Second Division of 
the Court that a prayer was not necessary. 

Opinion of Lord Prerident. — The act of Parliament expressly requires that 

^^^ the reclaiming note should pray the Court to alter die interlocutor 

reclaimed against in whole or in part This provision of the act 

of Parliament had been overiooked by the Second Division when 

they allowed a reclaiming note without a prayer to be received. 

The reclaiming note was refdsed as incompetent 

Lord Corehou9e, Ordinary. Act. jSAom, O, Ihmdoi, Jekn Dwidu, W. S. Agent 
Alt. RMerJwdf Biaidmni. J. B. GraeU, W. & Agent. D. CWriL 

T. 



No, 69. COURT OF SESSION. 273 



SECOND DIVISION. 
No. LXIX. 23 February 1832. 

NICHOLSON 

offainst 

ROBERTS. 

Bankrupt. — Stat. 33 Geo. Ill, c. 54— PROCEfis.— ^^^%€n ajira 
adjudger is nai in a rihuUian to get a decree without making up a 
rt09rd and trying ike merits of his actianj t^ second adjudger^ who 
has availed himself of the provisions of the statute^ sect. 9, to HM 
his sumnumSf and lodge the same in the clerk's hands^ without adl-' 
ing it, fir tiie purpose of being coffined in the decree of the first ad'^ 
judger, is not entitled to take the lead^ and to get his decree before 
the first a^udgery without following out the ordinary course of caU- 
ing his summons^ and proceeding according to the usual steps ofpro^ 
cess* 

FoRBiANy as trustee for the creditors of the late A. L. Ramagei 
raised a summons of adjudication against James Roberts, mason in 
Queensferryi which came before Lord Mackenzie, who, on the 8th 
December 1831, ordered the usual intimation to be made, in terms 
of the statute. 

Nicholson, another creditor of Roberts, then availed himself of the 
provisions of the statute 33 Geo. Ill, c. 54, sect 9, to libel a sum- 
mons of adjudication, and lodged the same, together with the do» 
cuments of debt, in the clerk's hands, with a view of being included 
in the decree along with the first adjudger. 

Roberts, in the meantime, had given in defences to the summons 
at the instance of Forman, and satisfied the Lord Ordinary of the 
necessity of ordering a condescendence, with a view to make up a 
record. The second adjudger, to whose summons no defences had 
been lodged, appeared at the bar when the cause was enrolled by 
Forman, for the purpose of obtaining a decree on his summons and 
the defences, and craved a decree upon his libel, at the same time 
that the Lord Ordinary ordered a condescendence by the defender 
in the action ndsed by Forman. 

This motion of the second adjudger was opposed by the first ad- 
judger, on the ground that the statute had given subsequent ad- 
judgers the privilege of coming into Court without calling their 
summons, for the purpose, and to the effect of being conjoined in 



S74 



DECISIONS OF THE 



No. 69. 



2.3 Feb. 1832. the decree along with the first effectual adjudger ; but that it did 
/'^V^^ not contain any warrant for them to take the lead, and obtain a 

Roberts. decree prior to the first adjudger, without going through the pre- 

liminary steps of calling their actions and abiding the ordinary form 
of process, by intimation, &c. in common form. 

The second adjudger answered^^That harlng been regularly 
brought into Court under the statutory intimation, his libel had 
thereby become a depending action, and that, as no defences had 
been lodged by his debtor, he was entitled to decree in common 
form, and could not be stopped short, merely because it turned out 
that the leader of the first adjudication was not in a situation to 
obtain decree. Neither could the first adjudger suffer any preju- 
dice by the second action now taking the lead ; because, if he suc- 
ceeded ultimately in obtaining decree under his summons, his ad- 
judication would come in pari passu along with the second. 



Opinion of 
G>urt. 



JudgmenL 



The Lord Ordinary took the question to report verbally ; and 
the Court WBS unanimously -of opinion, that the second adjudger 
was not entitled to take the lead, or to obtain decree under his sum- 
mons before the first adjudger, without following out the ordinary 
forms of process. 

The Lord Justice^Clerk. — I am quite clear that the words of the 
statute in the 9th section do not authorise this attempt on the part 
of the second adjudger. The privilege conferred on him by the 
statute, of bringing his action into Court, merely by calling his 
Summons without executing it, only entitles him to be conjoined in 
the decree to be obtained by the first adjudger. How, therefore, 
is it possible for him, under these words, to go on and take the 
lead, by getting a decree before the first adjudger ? 

Ijord Cringletie. — There can be no doubt of the meaning of the 
statute ; but tne second adjudger may now, if he chooses, go on to 
execute his summons, and make intimation, and he will then be 
able to obtain decree in common form. 

The Court accordingly directed the Lord Ordinary to refuse thfe 
motion of the second adjudger. 



Lord Ordinary, Mackenzie, Act MaUmeni, All. J. iS. Mart. 



u. 



Na 70. COURT OF SESSION. 274 



SECOND DIVISION. 

No. LXX. 23 February 1832. 

THE DUKE OF NORTHUMBERLAND and Others, 
Pkoprietors of Salmon Fishinos in the River Tay, 

against 
ALEXANDER HARRIS and JOHN BELL. 

Pbocess*— Summary Appjlicatiov. — A petition and complaint 
JiUb to ilie groundf unless it beserved^ in obedience to the warranty 
in due time to enable the respondent to put in answers on the day 
appointedjbr so doing by the warrant of set-vice ; and it is incom- 
petent Jbr the complainer^ of his own authority^ to prorogate the 
time for giving in answers. 

A petition and complaint for breach of interdict^ praying for pu* 
nisftment byjlne^ imprisonment^ or otherwise^ is incompetent with* 
out the concourse of his Majesty's Advocate, 

The proprietors of salmon-fishings in the river Tay presented a 
petition and complaint, for breach of interdict, against Harris and 
Bell, the tacksmen of the fishings of St Fort and Scotscraig, which 
was dated on the 1 July 1831. On the 9th of that month the 
Court < granted warrant of service in common form,' and ordained 
the respondents to give in written answers ^ by the first box-day 
* of the ensuing vacation ; and remitted to the Lord Ordinary to 
' receive the same, and to proceed in terms of the act of Parlia*' 
< ment' 

Hie first box-day in that vacation fell on the 1st of September. 
No day being fixed for service of the petition and complaint, the 
eomplainers neglected to do so till the 27th of ^August, some 
conununing having been held in tlie meantime with the respondents 
on the subject ; but on the 25th of August, two days previous to the 
regular service, the agents for the complainer intimated to the re- 
spondents a formal consent to prorogate the time for giving in an- 
swers till the second box- day, being the 29th day of September. 

The respondents lodged their answers on the last-mentioned 
day, under protest, that by doing so they should not be held to 
have departed firom the objection to the competency of the service. 

The Lord Ordinary not having authority to decide such causes, 
look it to report on cases, in terms of the statute. 



276 



DECISIONS OF THE 



N<a70. 



Respondent!* 
Fleas. 



23 Feb. 1832. The complainers pleaded — That the respondents had suffered no 
^^V^^ prejudice by the delay of service, as it was competent to the com- 
Northumber- plaiuers, who Were the only parties interested, to prorogate the time 
landand'otbers for giving in auswcrs. 

V. Harris and 
Bell. 

The respondents answered — That it was not competent for either 
of the parties to take upon themselves to pr(Mrogate the time for ser- 
ving the petition 'and complaint, or for giving in answers ; and that 
no shorter time being fixed by the interlocutor for giving in an- 
swers to the petition and complaint, they were entitled, as in the 
ordinary case, to have fifteen free days for preparing their answers; 
and that the petition not having been served so as to give them that 
time before the first box*day, the warrant for service had fallen to 
the ground. 

The Court was unanimously of opinion, that the plea of the re- 
spondents was well founded. 

The petition and complaint in this case was presented without 
the consent of his Majesty's Advocate, and its prayer concluded on- 
ly for punishment by fine, imprisonment^ or otherwise, and for ex- 
penses, ^ reserving to the petitioners all claim of damages competent 
* to them.' 

Their Lordships also intimated an opinion, in conformity with the* 
decision in the case of Macaulay v. Mackenzie, 123 Nov. 1890, that 
such a petition could not be insisted in without tlie concourse of the 
public prosecutor. 
Judgment. The Court accordingly dismissed the complaint 



Act. Xeasff Shaw. Alt Wkigham and /oofy. 

Martin, Agents. F, Clerk. 



Bowie i CampMl, and Wm, 

U. 



SECOND DIVISION. 



No. LXXI. 



23 Faruary 1832. 



JAMES INGLIS & Co. 

agairiM 
WILLIAM LANE & Co. 



Ship. — Statute, 6 Geo. IV. c. 110. — Process. — Parties having , 
exchanged a missive of sale of a shipy not containing any recital of the 



No. 71. COURT OF SESSION. 277 

reffMy^ fMr haouig been pmenUd to the eoUedor and comptroller 83 Feb. 18de. 
of Report in which she was repiiteredy in terms of the above statute^ Si-^Y-ifc^ 
and the purdiasers hamng granted a promismy'-note for part of the J"L«if &Co 
price^ and hairing afUrwwrdM faSLtd to retire the same^ and refused 
to implemmt the sale ; the seUers hamng raised an aetionj tendering 
a reguhr vendition and possession of the shipy and concluding fbr 
pagnuni ofihe promissery^notiy as part payment of the price ; — the 
Court diMUSsed this condtaum of the action^ but remitted to the Lord 
Ordinary to hear parties on an altem&tive conclusion^ which resolved 
into a eowst and reckoning with the dcfimders, fbr the time during 
which they had been in possession of Ae shipj tqnm the footing that 
Hu property remained wUh the sellers. 

Upon the 18 September ISSG, Inglis and Co. became the osten- 
sible purdMfleTS of the schooner^ Dolphin of Liverpool, at an Ad- 
miralty sale at Leith, and took the decree of vendition in the name 
of James Inglis, the only partner of the company. It appeared 
Aat Lane and Co. w^re the real parties who intended to maJce the 
purdiase ; but as Inglis and Go* had agreed to advance L.200 to 
them on secnrity of the vessel, an arrangement was made to take 
the vendition in their name. Accordingly, a missive of sale was 
exchanged between the parties at the same time, by which Inglis 
and Co. agreed to sell the schooner to Lane and Co. for L.301, of 
which they acknowledged the immediate receipt of L.101, and 
agreed to take Lane and Co/s promissory-note for L.2(K), at fouf 
months, on the retiring of which the sale was to be completed. 
Lane and Co. were in the meantime to receive possession of the 
schooner, and to insure her for L.400 on a voyage to Fayal. 
Lane and Co. accepted this offer, granted their note for L.200, and 
took immediate possession of the vessel accordingly. The promis-' 
s(Mry-note was afterwards renewed on the 18 January 1827 for two 
months, bearing to be * for value received, being the balance due 

< them' (Inglis and Co.) * by us' (Lane and Co.) < for the schooner 

< Dolphin.' 

In the course of the voyage to and from Fayal sundry accounts 
for furnishings and repairs to the vessel were incurred, for which 
Inglis and Co. became responsible, as registered owners. 

A dispute afterwards arose about the payment of these accounts 
and of the pronussory'>note ; and after much corresp<mdenoe and 
negociation, Inglis and Co. raised an action in the Admiralty Court 
against Lane and Co., in which, upon the foregoing narrative, they 
concluded, that, as the pursuers were ready to deliver to the said 
William Lane and Co. a register vendition in tiieir favour, and to 
give them possession of the said schooner, therefore the said WiU 



278 DECISIONS OF THE No. 7L 

S3 Feb. 1838. liam Lane mid Co. should be decerned and ordained to make pay- 
^^yi*"^ ment of the foresaid snm of L.200, contained in the said promissory- 

^"^*iPcoL ^^^* ^^ interest, and also to free and relieve the said James 
Inglis of all demands which have been or may be made against him, 
as registered owner of said vessel, for furnishings, &c. ; and in the 
event of their fsEuling so to relieve the pursuers of all these chums, 
then to make pajonent of L.500, or such other sum as shall be as- 
certained to be the amount of claims made against them, and of the 
loss and damages arising to them from Lane and Co. taking pos- 
session of the vessel as aforesaid^ and of all other loss and damage 
arising from their frdlure to implement the missives of sale. 

The case originated, and a record was made up, in the Court of 
Admiralty, and, after the abolition of that jurisdiction, came before 
the Lord Ordinary. 

The defenders objected to the relevancy of the summons^, in so 
&r as it concluded for payment of the L.200 contained in the pr«>- 
missory«note, in implement of a baigain for the sale of a ship, in 
respect of the statute 6 Geo. IV. c. 110, $ 31, which requires, that 
property in any ship or vessel, or any part thereof, < shall be trans* 
' ferred by bill of sale, or other instrument in writing, containing a 

< recital of the certificate of registry of such ship or vessel, or the 
^ principal contents thereof otherwbe such transfer shall not be va» 
' lid or effectual, for any purpose whatever, either in law or in equi- 
^ ty,' &C. ; and sect 37, by which it is enacted, * that no bill of sale, or 

< other instrument in writing, shaU be valid and effectual to pass 

* the property in any ship or vessel, or in any share thereof, or for 

* any other purpose, until such bill of sale or other instrument in 

< writing shall have been produced to the collector and comptroller 

< of the port at which such ship or vessel is registered, or to the col* 

< lector and comptroller of any other port at which she is about to 

* be registered de novo, as the case may be, nor until such coUee- 

< tor and comptroller shall have entered in the book of registry, or 

* in the book of intended registry of such ship or vessel, as the case 

< may be, the name, residence and description of the vender and 
^ mortgager,' &c 

The Lord Ordinary took the cause to report on cases upon the 
point of relevancy, in which 

Punuen' ^^ pursuers pleaded — That although Mr Inglis was the appa* 

Pless. rent owner of the vessel, yet he held it under a personal obligation 

to convey it to the defenders, whidi was legal and binding upon 
both parties from its date ; and that although the missive of sale in- 
terchanged by the parties might not, in itself, be effectual to trans- 
fer the property of the vessel, it laid the parties under an obligation 



No. 71- COURT OF SESSION. 279 

to implement dieir contract, which was accordingly now dbne, by 2S Feb. 1832« 
the pursuers^ on their part, now tendering a regular vendition to the ^^"^V^ 
defenders, who were bound, on the other hand, to relieve them of J°Lanf &^ 
all the obligations which they had come under, as the osten9ible Co. 
owners, rince the date of the missive. The parties are in the same 
situation as if they had exchanged a missive of sale for a landed 
estate. It is very true that such missive would be insufficient to 
transfer a regular feudal title to the property, but payment of the 
price might nevertheless be enforced by the seller, provided he ten* 
dered, as is done here, a regular diq>08itiOn, when he raised his 
action upon the misrive. 

The defenders answered — That the transaction between the par*> Defenders* 
ties could not be termed a sale in any proper sense, and that the ^^*^ 
condudons of the summons, in so for as they insisted for payment 
of the L.200, as in fulfilment of a concluded sale, were utterly in- 
consistent, both with the narrative of the summons, the cmidescen*- 
dence, and the terms of the missive, which suspended the comj^e- 
tibo of the sale till the promissory-note should be retired. If the 
nussive is founded on as a proper missive of sale, it is impossible to 
look at it in a court of law, as the statute expressly enacts that such 
writings, in which the proviuons regarding the registry are not 
complied with, shall not be valid or effectual for any purpose what- 
ever. But it is evident, that the missive which passed between the 
parties only contemplated a future sale, which was to depend upon 
the retirement of tiie promissory-note by tiie defenders. 

The Court was of opinion that the argument for the defenders 
was well founded. 

Lord Crifigletie^ — I have studied this case with great attention ; Opinion of 
^but I observe tiiat tiie parties are at issue on an important Seu^t, viz» ^"^ 
whether there was intended to be a sale to Mr Inglis at the time 
when the decree of sale was taken in his name, or whether the real 
purchasers at that time were intended to be Lane and Co. and 
Mr Inglis only got the decree taken in his own name, in secu- 
rity of his loan. The summons is in this respect inconsistent with 
the condescendence. The summons libels expressly on a sale by 
'the pursuers to the defenders. It proceeds on the narrative, that 
' by missives, dated the 15th and 16th of September last, the com- 
^ plainers sold to the said William Lane and Co.' &c. They now 
wish, in their condescendence and pleadings, to convert it into an 
.agreement to sell. That may be very true ; but it is inconsistent 
with the summons, which proceeds on the narrative of a sale, and 
concludes for payment of L.200 as balance of the price. Now this 



280 DECISIONS OF THE No. 71. 

93 Fab. 1839. conclosion is directly contrary to.the provitioiu of the statiite, Aere-^ 
^^<^^\^^^ fore that part of the sammons is out of the question* But the other 
v^Lanf &^ oondusion of connt and reckoning, for the loss sustained by the 
Co. pursuers, in consequence of the defenders having taken possession of 

o inion of ^^ vessel, and for loss and damage arising from non-^fiilfilment of 
Court. the missive, depends upon common law, and maybe insisted in 

without touching the statute. 

Lord Justiee^Clerk.'-^l have considerable doubts whether even the 
latter cimclusion can afford matter of action under this summons^ 
which proceeds entirely on the narrative of a sale having been made 
to the defenders. I am therefore not satisfied that there is any re«> 
levant matter at all in the condescendence, for the action rests on 
the basis of a sale having been completed by the missive interchan- 
ged on the 15th and 16th September 1826 ; and in c<m8idering the 
question of relevancy, we are compelled to look at the misnve, and 
I hstve not yet heard any satisfiictory answer to the argument on 
the clauses of the statute, which dechire that such writings shall not 
be valid or effectual to pass the property of such ship or vessel, or 
for any other purpose. It may, however, be sufficient to dismiss 
the action, in so fiur as it relates to the first conclusion of the sum^- 
mons, and to allow parties to be further heard on the other point. 

Lord Glenlee. — I had a good deal of difficulty in arriving at a 
satisfiEustory result in forming my opinion in this case. The first 
thing that must strike one, on looking at the summons, is, that the 
first conclusion is altogether inconsistent with, and inapplicable to 
the narrative on which it is founded, for it proceeds on the narra- 
tive that a sale was actually concluded by the missive, and then it 
immediately after goes on to say, as on the footing that there was 
only an agreement to sell to a certain extent, that the pursuers are 
ready and willing to grant a regular vendition, upon receiving pay- 
-ment of the balanoe of the price. Now, as the matter stands, the 
whole condition on which payment of the price is demanded is un- 
tenable, and it is quite impossible to give decree in terms of the 
fint oondusion of the libel. But then a very material quesdon and 
claim remains behind, which just comes to a count and reckoning 
between the parties, fDr the consequences of the defenders having 
taken possession of the vessel on the footing of owners, and sent her 
on the voyage to Fayal. This is a conclusion in the summons quite 
independent of the former. It is not, to be sure, expressly libelled 
as for a count and redconing, but it just resolves into one. I am 
not at all clear that the registry statute would interfere with an 
alternative obligation, either to purchase the vessel at such a pricey 
or to pay for the use of it, which this second conclusion of the sum- 
mons comes to. 



No. 7L COURT OF SESSION. 281 

The following infeerioeutor wiui pronoimced : < The Lords having 83 Feb. 1838. 
advised this cause, and heard counsd for the parties, sustain the ^*^v^^ 
objection to the action, in so fiu- as relates to tiie first conclusion ^°Liiiie &^' 
of the summons, and decern ; and remit to the Lord Ordinary to Co. 
hear parties furtiier as to the otiier conclusion thereof for count j„dgni«t. 
and reckoning, and to decide thereon in so &r as he may find tiie 
same competent under the summons of this action ; reserving also 
to his Lordship to decide, as to all questions of expenses, as to him 
may seem just' 

Lord Ordinary^ Mtdm/tu Act DeoM t^Tmo. (Hopt^J For^fth* Alt, Skmeg 

ManSuJL John Ifymer and John Harvejff Agents. F, Clerk. 

u. 



FIRST DIVISION. 
No. LXXII. 24 February 1882. 

DAVID SCOTT 

against 
DR CHARLES ANDERSON. 

Prescription. — Stat. 1579, c. 88.-*-irrfrf, That commission fees 

fir paymevit of money and advances in cashj contained as items in 

a writer's account^ fall under the operation of the statute^ the agent 

not having acted under a special commission or factory ^ but in the 

ordinary line of his profession. 

The pursuer acted as law-agent for the late Dr James Gregory, 
surgeon, R. N. from the year 1814 until the death of the latter in 
1828, but he did not act under any written commission or fiictory. 

After tiie death of Dr Gregory, and tiie lapse of three years from 
die date of the last article in the account, the pursuer brought an 
action for payment against the defender, Dr Ch'egory's trustee. 
The triennial prescription being pleaded in defence, it was answer- 
ed, (and tiie answer was ultimately restricted to this extent,) that 
tills defence could not apply, either to commission fees for payment 
of money, or to outlays made by the pursuer, and contained in his 
account, these being equivalent to advances in cash, which, it was 
settled, did not fall under the operation of the statute. 

The Lord Ordinary < sustained the defence of the triennial pre- 
< scription to all the articles of business stated in the accounts pur** 



282 



DECISIONS OF THE 



No. 72. 



94 



Scott u, Ao- 
denon. 

Judgment. . 

Opinion of 
Court. 



< sued on, including commission; diai^es for payment of money/ 
&c. and 

The Court unanimously adhered. 

It was observed from the Bench^ that if, in this ease, the pursued 
had acted under a particular fiEictory or commission, his claim would 
have been of the nature of an accounting, and the different articles 
of charge might have been demanded, as long as the factory 6t 
commission was binding upon the parties, and the statutory limita- 
tion could not have been applicable. But the action here was 
brought for payment of a writer's account, which, being presumed 
to be settled at the end of every year, had been held, by the deci- 
sions of the Court, to fell under the general clause of the statute. 
With regard to the alleged distinction between the different articles 
of the account, it was impossible to hold that one part or item should 
suffer prescription, and the other not Indeed, in this country, the 
accounts of most agents of femilies possessed of considerable landed 
property are made up of fees and commission, and these have been 
held to suffer prescription, as do also claims for fees advanced to 
counsel. 



Lord Ccfikmue, Ordinary. 
Alt. Man, H. Bruce, 



ArL WUaoH, RhuuL J, A. CampbeU, W. S. Agent. 
B- W. Jamieaon, W. S* Agent, D. Clerk. 

c. 



a=5-S! 



FIRST DIVISION. 



No. LXXIII. 



24 February 1832. 



ARCHIBALD CAMPBELL 

affainst 
ANN THOMSON or CAMPBELL. 

Process. — Jurisdiction.— 1 Stat. Wil. IV. c. 69. — In an action 
of divorce before the Commissary Courts against a party domiciled 
abroad^ a proof having been allowed prior to the passing of the above 
statute, but not condudedj and the process having afterwards fallen 
asleep; — held, 1. That a summons of wakening was competent be» 

fore the Commissaries ; and 2. That personal intimation to the de^ 

fender of the wakening was not necessary. 

The advocator raised an action of divorce before the Commissaries 
egajnst his wife, the respondent, (who was residing in America,) 



No. 78. COURT OP SESSION. 283 

on the ground of adultery, and the summons was executed against 24 Feb. lS3i. 
her edictally, as being forth of the kingdom* A condescendence ^''^y^^ 
was then ^ven in, and the Commissaries, in respect the defender ^^^^ ^^ 
had been cited edictally only, appointed a copy of the summons, and CampbelL 
of the condescendence, to be intimated to her personally, or left for 
her at her place of residence. The action having fiJlen asleep, a 
process of wakening was raised against the defender, and executed 
against her, first edictally, and thereafter (10 June 1830) she was 
personally served with a copy of the original libel of the conde* 
ecendenee, and also of the summons of wakening. 

The process was wakened, and the Commissaries allowed the 
pursuer a proof; but the process was again allowed to fall asleep, 
and a second wakening became necessary ; and the question occur- 
red, whether the summons of wakening should be brought in the 
Court of Session, or before the Commissaries. The doubt arose 
from the terms of the stat. 1 Will. IV. c. 69, which was passed 
subsequently to the order allowing the proof, and by which the 
jurisdiction of the Commissary Court, in actions formerly peculiar td 
that Court, was transferred to the Court of Session. The general 
provirion (sect 83.) Is, ^ That all actions of declarator of marriage, 

< and of nullity of marriage, &c. shall be competent to be brought 
^ and insisted in only before the Court of Session.' But it con- 
tains (sect 34.) the foUowing reservation, with regard to cases where 
a proof had been allowed, but not concluded, previous to the com- 
mencement of the act : ^ And be it enacted, that all such actions, 

< which shall be depending before the Commissary Court at the 

< commencement of this act, shall be transmitted to the Lord Presi- 

< dent of the Court of Session ; provided always, that where a proof 

* shall have been allowed by the said Court of Commissaries pre- 
^ viously to the commencement of tfiis act, such proof shall be con- 

* eluded before such action shall be transmitted, as herein directed.' 

The advocator, upon the ground that a process of wakening was 
not an original process, fidling under the 3dd section, but fell under 
the exception contuned in the 34th, raised a summons of wakening 
in the Commissary Court, which was executed edictally, the defender 
being still furth of the kingdom. But the Commissaries, upon ad- 
vising the process, with the previous proceedings, found that they 
had no jurisdiction to awaken the action, and therefore dismissed 
the libel as incompetent ; and added the following 

< Note, — In this case it appears that the defender is resident in 

* America. Accordingly, upon 2 May 1828, the Commissaries, in 

< respect the defender had been edictally cited only, appointed a 

< copy of the libel and condescendence to be intimated to her per- 

* sonally, or left for -her at her place of residence. The process was 



264 



DECISIONS OF THE 



No. 73- 



84 F«b. IBdt. 



Campbell 8. 
Thomson or 
Campbell. 



< allowed to &U Mle^p ; and a summons of wakening was laked, 

< which, with the original libel and condescendence, were notarially 

< intimated to the defender. The process was then wipkened, wd 

< on 6 Augost 1830 a proof was allowed. The process was ignin 
^ allowed to sleep, and a new libel of wakening has been raised and 

< executed edictally against Ihe defeqder ; but no other intimatioii 

< appeuv to have been given to her« If, therefore, the Commis** 

< saries had now even the competent jurisdiction, the present Bwaoir 

* mens of wakening should, in the first place, be of new a|^nted 

< to be intimated to the defender personally. But it Is thought that, 
^ under the late judicature act^ the Commissaries have now no juris- 

< diction to make such an order, &r less to proaoonoe decree in the 

< process of wakening. It is true, no doubt, that there is a power 
^ reserved to them in the act to conclude prooft, (before transmission 
^ of the action to the Court of Session,) in those cases in which they 

< themselves had previously appointed proo& to be taken before 
^ passing of the act. But they apprehend, neverthelelSff that this 

< reserved power of concluding proofs cannot be extended to the 

< act of entertaining a summons of wakening, or of pronouncing a 

* decree therein. On these grounds they have deemed it proper to 

* dismiss the present action as incompetent,' 

The hofd Ordinary reported the case to the Court} with the fml* 
lowing note : * The Lord Ordinary has reported this bjU, in the 
first instance, because he is very much at a loss to determine whi^ 
order should be made on iU If it were simply an advocation of 
an interlocutory judgment of the Commissaries, in a eause which, 
by the late statute, still remained with them, for concluding a proc^ 
previously allowed, he would of course have appointed the bill 
to be answered, and afterwards dieposed of the ease aceonling to 
his view of the point raised. But here there is ne party in Court, 
and properly no process, exc^t a mere 6umm<ms of widening 
executed edictally. To appoint intimation in sueh circumstaQces 
would answer no purpose ; and the competency of it must depend 
on the view taken as to the competency of advocation at all, on 
the merits of the ulterior point as to the competency of the sonsh 
mens of wakening in the Commissary Court Though there may 
be a defect in the statute, in not providii^ for this case of a pro* 
cess falling asleep while a proof is in dependence, the Lord Ordi- 
nary thinks that it must be implied in the provision as to all 
clauses in which a proof has been allowed, but not concluded, that 
all the powers and jurisdiction of the Commissaries, necessary for 
enabling them to bring the proof to a conclusion, and to bring the 
process into that state which is necessary to enable and require 
them to transmit it to the Court of Session, must remain as they 



Ho. 73. CX)URT OF SESSION. 285 

* wore befiace^ for^ ot]ierwwe> it is evideiit that the party would 24 Feb. 1832, 
^ be left without any remedy. He therefore thinks^ that conetniing ^^^s^^fe*^ 
«: the d8d ttud d4th sectioiM of the statute reasenably, and m con- ^^^"^r 

*. neadon with one another^ it cannot be held that a summons of Campbell. 
^wakeah^g in a caaae in wliich there was a dq>ending proof at the 
*' date of the act ia rendered incompetent^ nnder the geneial words 
f evidently Applicable only to new or original actions of maniage,^ 
^.nnttity a£ marriage^ legitimacy, bastardy, divorce and sepatation* 

< He thinks^ therefore, that the judgment of the Commissariea ia 
<i wraagt aod that there shonM be a remit to alter it, and waken the 

* ptoeeesL Periaqpa it may be thought that there should first be an 

* Odder to answer, and an edicts^ intimatiaa^ but diere is no im- 
<. peialiTe rule sb to receiving an answer, 

' > jAs to the necessity of the snomwiis of vnke^ittg beibg person-' 
«.aily intimated^ the Locd OMinafy cannot tkbk tlMkt there i^such 
^m aet^essity; for the petsooal intlBatlon in the original proeeed- 

* ing is not required as a necessary form, but as matter oC jesttoe, 

< that the party may know of the action brought But when that 

< ifotace htti b^a g^iren, and nir appeaMinoe made, and the ease is 

< tmder piM^ k would be stretching the rule very for to re<|Qire a 
^ Hka notice ef a summons of wakening. 

^ Bafit llm ease is alti^ether so pecnfiar, that itseems prc^>er that 
^ the Coatt sboakl dispose of it^' 

The Courtj upon the grounds stated by the Lord Ordinary, re- judgment. 
fus e d the bfll ; bat rendtted the same to the Commissaries, with in- 
structions to alter their interlocutor, and awaken the process, no per- 
sontd intimation being necessary* 

Lord Moncreiff, Ordinary. For the Advocator, Whighanu John M*Andrew, 

Agent. 

c. 



SECOND DIVISION. 
No. LXXIV, 25 February 1832. 

THORBURN 
affainst 
RANKEN. 

Bankrupt. — Stat. 54 Geo. III. c. 137. — Mandate." 

In a competition for tibe office of cemmon agent in a ranking and 

VOL. VII. u 



286 



DECISIONS OF THE 



No. 74 



Thorbum v. 
Raoken.- 



85 Feb. 1832.' sale, a vote was tendered in respect of a debt due to the Bank of 
Scotland, as to which the oath of verity was emitted by Mr Henrys 
Ooodsir, one of the tellers in the Bank, who deponed, < That 

< William Cadell, Esq., treasurer of the said Bank, is now absent 

< from Edinburgh, and has granted procuration to the deponent to 
^ act for the said William Cadell, in the execution of his office 
<.as treasurer aforesaid, during his absence from Edinburgh ; and 

< that the sum of L.13,709,' &c is justiy due to the said Governor 
and Company, &c. The rest of the oath was in the usual terms. 

It was objected to this claim, that * the oath of verity bears to 

< be taken by Mr Henry Goodsir, designing himself teller in the 

< Btok, per procuration of William CadeU, Esq. treasurer. But 

< neither the Bank's charter, nor any procuration by Mr CadeU, is 
<. produced ; nor is any such procuration referred to as of any parti- 

< cular date ; and, at any rate, the Bank's treasurer could not grant 
* such a procuration, nor delegate his powers, either to Mr Good- 
*. sir, or to any otiier person.' 



Judgment* 



The Lord Ordinary and the Qntri unanimously repelled the ob- 
jection, holding that the affidavit was sufficient prima fiide evi- 
dence, both of the terms of the procuration, and of the authority of 
Mr CadeU to devolve the execution of his duty as treasurer, during 
his absence, upon another officer of the Bank, the same. not being 
objected to on the part of the Bank* 



Lord Ordinary, Jliaekeime. Act. M*NeiJL Alt WhigfiaL 
and M. N. M'DonaU, Agenu. 7. CUrk. 



U. 



SECOND DIVISION. 



No. LXXV. 



25 JPe&ruory 1882. 



JANET M'LELLAN and SPOUSE 

offoitut 
CHALMERS' TRUSTEES. 



JvKumcao's.'-fNciik offieiwiuj 

The Court refused, as incompetent, the petitioa of a married wo< 
nan and her husband to appoint a judicial fiidor for bodi their in- 



Na. 75. COURT OF SESSION. 287 

terestS) or a judicial fieietor for the husband and a curator bonis for 25 Feb. 1832. 
the wife» for the purpose of brining an action to call to account ^""^v^ 
the trustees under their marriage-contract^ who were also the trus* spouae v. ^^ 
tees under the marriage-contract of the wife with a former hu8-» Cfaalmen* 
band. 

It was remarked, that they might raise the action, if so adrised, 
in their own names ; and if, as was alleged, the wife had an inte- 
rest se|MKrate from and independent of her husband, the proper 

course was to apply for the nomination of a tutor ad litem for her, 
when the action was brought 

Act. R. Tkommm, Ak. Mai^atuL O. J. Ure and Edward M^ditUan^ AgenU. 
T. aerk. 

U. 

» ■ 



JPIRST DIVISION. 
No. LXXVL 28 February 1832. 

Dr ALEXANDER FIFE 

against 
JOHN JAMES FRASER. 

Process. — Act of Sederunt II July 1828. — I. A reclaimvig 
naie.affainst an inierlocuiar in Ae BiU^ChanAer refumg a biU, 
cannoi be received unless boxed withix^fourteen days of the date of 
ihe inierhcidoT.-^ll. It is not competent for the Lord Ordinary to 
prohibit the clerk Jrom issuing the certificate qfrefusalj (to aRow the 
complavner to apply to the Courts) for a longer period than fourteen 
days from the date of the interlocutor. 

Dr Fife haying been chaiged to make payment of a biU, present- 
ed a bill of suspension, which the Lord Ordinary refused upon an- 
swers OB ftl January 1832. Upon a note presented by the com- 
plainer, the Lord Ordinary, on 6 February, prohibited the clerk 
from issuing the certificate of refusal of the biUfor fourteen days, in 
order that the complainer might reclaim, if so advised. A reclaim- 
ing note was lodged within fourteen days from the date of the last 
interlocutor, but more than fourteen days from the date of the in- 
terlocutor refusing the bill. 

When this note was moved in Court, it was dgected by the re- 
spondent, that it could not be received, being too late ; That by 

u2 



288 



DECISIONS OF THE 



No. 76; 



Defender's 



2H Fei>. Idas, the 14 section of the aet of Sedenmt 1 1 July I828» it was provided, 

^^^V^ tlttt interlocuton pasdi^ or refuaboig bilk ^ shall take effect as sooa 

Fifet.. Fcser. , ^^^ cleik of the biUs shall hav« delivered up the passed biU, in 

( order to the expeding of the letters^ or duly issued a eertificate 

< of the refusal of the bill ; but the Lord Ordinary on the Billa 

< may either^ by the interlocutor itself, or suhsequendyt on cause 

< shewn by a note for the party, p<Jiibit tbe delivery c^ the bill or 

* issue of the certificate^ during such time as he may judge reaseor- 

* able, for enabliug the party to obtain a review of the ioteriecufenr.' 
And by sect 15, it was provided, that all interloeutors in the Bill* 
Chamber shall become final if not reclaimed against within fourteen 
days. Although, therefore, the Lord Ordinary might prohibit 
the issuing the certificate to enable the party to reclaim, yet he 
could only do so within the reclaiming days, and, therefore, the in- 
terlocutor of the Lord Ordinary in this case, prohibiting the issuing 
of the certificate for fourteen days after the 6di of February, was in- 
competent, the reclaiming days having ejq)ired before the fourteen 
days elapsed. As the reclaiming note in this case was not lodged 
within fourteen days from the date of the interlocutor refosiiig the 
bill, it could not now be received, notwithstanding the second in- 
terlocutor of the Lord Ordinary, which waa incompetent 



Answered — The power given to the liord Ordinary by the 14th 
section, to prohibit the issuing of the certificate, was not limited 
to any particular period, bat during sueh time as the Lord Ocd0^ 
nary might consider reasonable to aQow the party to reolaiBi. An 
interlocutor prohibiting the issuing of the certifieate for fowtcen 
days after the dth of February was proaouneedy and that intedoastor 
was not redaimed against by the respondeat The reelauoung note 
was lodged within the time allowed by the Lord Osdinary'aliist in- 
terlocutor, and was therefore competent 



Opiaion of 
Court 



Bafyrmfi -^The act of Sederunt 18S8 ntade » gi«at aHei»« 
tion, in so for as it limited the time for i eclatraiBg agwnst a Bilt- 
Chamber interlocutor. No doubt the Lord Oidiauy may piohftit 
the issuing of a certificate ; but he has no power to prorogito the 
reclaindng days, and therefore cannot give an indidgenoe beyond 
the time when the int^ocutor would become finaL 

Lard Plfeddmvt. — Unless there is a prohibition by the Lord Or* 
dinary, the cerdficate of refusal may be issued wkhin fotty^^iglit 
hours after the bill is refused. But although the Lord Ovdinary' 
may prohibit the issuing of the certificate, he cannot do that beyond 
the redrtiming days. 



Uo. 76- COURT OF SESSION. 28d 

Tlte Court refiised tlie note as incompetent 28 Ftb. 1832. 

Lord Mtmeni^^ Ofdinary. Act Ihm o/Fac, (Bop^J Neaves. P. Hendtnon, ^*^^ ^' *'''**^^''- 



AgeoU Alt. Sfene* Party, Agent. B. Clerk. 

T. 



Judgtnfht. 



FIRST DIVISION. 

No. LXXVII. 28 February 1832. 

JAMES SHEDDAN 
WILLIAM SHARP. 

Paoc£sb.-— Expenses.— Advocation.^^Stat. 2 Geo. IV. c. 38. 
— 1. In an advocation of brieves under the above statute^ Jhund^ 
that the Lord Ordinary has power to award expenses, aUhough 
smh power is twtmpresaly given by the etaiiUe.^^^. Oneofthepar" 
ties hairing withdrawn his hritffrom the competition before any 
proof woM aUoiwed, and the Lord Ordinary having Jbimd him lia^ 
bk in esopenseSf /bstndi that these expentes did not include the expense 
^ the other party in taking the deposition of aged witnesses to lie 
inretsnOs. 

William Sharp having purchased a brief, for serving himself 
heir in general and of conquest to the deceased John Sheddan, ob^ 
tuned from die Magistrates of Canongate a commission to take a 
proof. I^eddan having also token out a brief, advocated both 
brieves to the Court of Session, in terms of the 2d of Geo. IV. 
c. 38, seet 1 1, which provides, < that in all cases of competition of 

* brieves, as well as where a party claiming right to appear and op- 

< pose a service shall make such appearance, either party may ap- 

* ply for and obtain advocation of the brieves to the Court of Ses- 
^ rion $ and the Lord Ordinary before whom the letters of advoca- 
^ tion shall be called shall advocate the brief, and remit to the fifth 

< or junior p^manent Lord Ordinary for the time, to be judge in 

* Ae said service.' 

Lord Corehouse, to whom the advocation was presented, without 
advocating the brieves, remitted the advocation to the junior Lord 
Ordinary, Lord Moncreiff, who pronounced this interlocutor : * In 

< respect the counsel for the advocator states that his client has gi- 



290 



DECISIONS OF THE 



No. 77. 



26 Feb. 183^ < y^i^ up |j^e case, adrocates the brief of tlie respondent ; finds him 
< entitled to expenses.' 



Sheddan v. 
Sharp. 

Pursaer'g 
Pleas. 



Opinion of 
Court 



Jodgment. 



Opinion of 
Court. 



Sheddan presented a reclaiming note, upon which he pleaded — 
1st, That the interlocutor of the Lord Ordinary was irregular, and 
not in terms of the statute, in respect his Lordship remitted to the 
junior Lord Ordinary without first advocating the brieves. 2d, As 
the statute gives no authority to the Lord Ordinary to find ex- 
penses, the interlocutor by Lord Moncreiff, finding the advocator 
liable in expenses, was not authorised. 

The Judges expressed an unanimous opinion, that the Lord Or- 
dinary had in this case the same power to award expenses as in any 
other case, and that, wherever a judge had jurisdiction to try the 
merits of a case, he had a common law power to decide the ques- 
tion of expenses. 

Upon this opinion regarding expenses being expressed, the ad- 
vocator waived the other point, and the Court adhered, (14 Febru- 
ary 1832.) 

When the account of expenses was given in, the Auditor refused 
to allow the expenses of examining several old witnesses, whose evi- 
dence had been taken to lie in retentis. The respondent objected 
to this part of the Auditor's report, and pleaded^ that these formed 
truly part of the expense to which the party had been put by the 
advocator's opposition. By advocating the brieves, the advocator 
prevented the respondent from proceeding with his fo'oof, and 
therefore it was necessary for him to secure the evidence of those 
old witnesses, which otherwise might have been lost, in order that 
he might be able to prove his propinquity when the: competing 
brieves came to be discussed. This would not have been neoes* 
sary if the advocator had allowed the respondent to complete his 
proof; but that having been opposed, it was necessary for him to 
get the evidence of these witnesses taken, to lie in retentis* 

The Court repelled the objection, and approved of the Auditor's 
report 

Ltord President. — A depending process is not necessary to entitle 
a party to apply to have aged witnesses examined, their evidence 
to lie in retentis. This is often done, even upon a libelled sum- 
mons ; but when the summons is called, and the defender does not 
appear, could he be liable in these expenses ? It is a measure that 
a party takes upon his own responsibility, and for his own safety, in 
case die process should go on ; but it does not follow that he shall 
be entitled to these expenses against his opponent if the action 



No. 77. COURT OP SESSION. 291 

does not go cnf and the evidei|ce of these witnesses should be of 28 Feb. 1S32. 
no use. Vi^v^ 

The other Judges concurred. ^^ ''• 

Lord Momarmfft OrdiiMrjr. Act. P. Robertaon* A, M. Andtnon, Agent. Alt. • 
M, P. Bnvm. MMn^ jr Howdmi^ W. & Agenu. S. Clerk. 

T. 



SECOND DIVISION. 

No. LXXVIII. 28 Faruary 1882. 

HECTOR KEMP 

againd 

ALEXANDER MACKENZIE. 

Bankrupt. — Sequestbation. — Stat. 54 Geo. Ill, c. 137. — 
L Where nine'tenths of the creditors in number and value^ at 
a meeting caUed in terms of the bankrupt acty agree to accept 
the composition offered by Ae bankrupt^ it is the trustors duty^ 

. under the statutejforthwith to report the proceedings of the meeting to 
the Court rf Session^ although it is not incumbent on him to apply 
for the consent of the absent creditors, or the approval oftiie compo^ 
sition by the Court* 

IL It is the duty of ike trustee^ under the statute^ in regard to the in^ 
terest qf both the creditors and tlie bankrupt^ not to surrender pos^ 
session of the baaiikrupt estate to the cautioners for a composition, so 
long as the contract of composition has not been approved of and 

. confirmed by the Court. 

Kemp^s estate having been sequestrated, he made an offer of compo- 
sition at a general meeting of creditors, held 3d of September 1827, 
which, was unanimously approved of by the creditors present ; two 
of whom, Mr Alexander Mackenzie of Millbank, and Mr William 
Mackenzie of Contin, agreed to be cautioners for the same. Ac- 
cordingly, the bankrupt, as principal, and these individuals, as cau- 
tioners, granted a bond in &vour of the creditors for payment of 
the composition, and lodged it with the trustee. 

Thereafter, the cautioners were allowed by the trustee to super- 
sede him in the management, and to intromit with and appropriate 
to themselves the whole, or the greater part of the sequestrated 
i^tate and effects. Mr Mackenzie of Milllxuik afterwards be- 



292 DECISIONS OF THE No. 781 

28 Feb. 1 832. came bankrupt ; and nothing was done by the trustee to caary 
^^^V^^ through the composition. 

keoTie.'' ^^' Three years subsequent to the offer of composition, the bankrupt 
presented a petition and complaint against the trustee, complaining 
of his neglect to report to the Court of Session the proceedings re-* 
lative to the composition, in terms of the bankrupt act, sect. 69, 
or to take any other step for obtaining the approval of the Court ; 
and of his having, meanwhile, relaxed in his statutory duty, and al- 
lowed the cautioners to obtain possession of the funds and super- 
sede him in the management of the estate ; and therefore praying 
that the trustee should be ordained forthwith to take the necessary 
'steps for obtaining the approval of the composition by the Court ; 
' or failing thereof, or in the event of the said arrangement, by 

< reason of the foresaid irregularities or otherwise, proving abortive, 

< then to ordain the said Alexander Mackenzie immediately to pro- 
' ceed in realising and distributing the sequestrated estate, in so 
' far as that is now practicable, in terms of the statute,' without pre- 
judice to the claims of damages of the petitioner or his creditors, 
against the trustee or the cautioners, on account of their illegal and 
injurious proceedings. 

It was answered by the trustee — That it was not the practice, 
and the trustee was not bound to report the proceedings in ques- 
tion to the Court, without having evidence of the statutory accep- 
tance of the offer by creditors, in regard to number and value ; and 
that it was not his duty, b'ut that of the bankrupt himself, to pro- 
cure such acceptance, or to apply for the approval of the Court. 

The LfOrd Ordinary pronounced the following interlocutor ; 

* The Lord Ordinary having considered the petition and complaint, 

< and answers, with the closed record, and having heard parties' 

< procurators, in respect of the decision of the Court, in the case of 
' Pentland v. Paterson, December 8, 1827, Finds, that it was tiie 
' duty of the respondent, under the statute, forthwith to report the 

< proceedings of the meeting of the creditors, held on the 3 Sep- 

< tember 1827, at which, it is admitted, that more than nine-tenths 

* of the creditors in number and value agreed to accept of the oom«- 

* position which had been offered at the preceding meeting : But 
' in respect of the same decision, and of the practice previous to the 

< date of it, and further, that it does not appear that the coroplainer 

< made any requisition to the respondent, calling upon him to pre- 

< sent such a report, finds, that it cannot be held, that in not doing 

< so, he committed any wrong sufficient to warrant a petition and 

* compkinl against him, at the instance of the bankrupt himself: 
^ Finds, that it was the duty of the respondent, under the statute, 
' in regard to the interest of the creditors and all concerned, not to 



Na 76. COURT OF SESSION, 393 

surrender the possession of the bankrupt estate, as long as the 28 Feb. 1832. 
contract of composition had not been approved of and confirmed ^*^V^^ 
by the Court : Finds, therefore, that the respondent acted incor- ^^^^J^; *"• ^^**'' 
rectiy in giving up the management and possession of the estate 
to other persons, as admitted in the record ; but, in respect that 
itm aidmitted by the complainer, that the possession was given to 
Alexander Macdcenzie of Miilbank, and William Mackenzie, the 
two persons who, along with the complainer, had subscribed the 
bond of caution for payment of the composition — that, though 
the complainer d^es the raspondeRfs statement, that the pos- 
session was given to the complainer himself, in conjimction with 
the cautioners, he does not allege that the &ct of their kaving 
been so allowed to take possession was unknown to him, €uid that 
the Lord Ordinary is satisfied that it must have taken place with 
his consent, express or implied: That no complaint, judicial 'or 
extrajudicial, appears to have been made by him on the subject, 
during nearly four years, which elapsed previous to the bank- 
ruptcy of Alexander Mackenzie; and, farther, in respect that 
none of the creditors complain of tlie proceedings, finds that the 
complainer is not now entitled, under this complaint, to insist on 
any penal conclusions against the respondent on that account ; 
but ordains the respondent forthwith to report the proceedings of 
the said meeting of the creditors on the 3 September 1827 ; and, 
in the event of the composition not being appoved of, to proceed 
to recover the estate, in so far as it may be stiil in existence ; and, 
in the mean time, to take such measures as tiie circumstances may 
admit of for the safety of all concerned : Finds no expenses due 
to either party, and decerns/ 

' The bankrupt reclaimed ; but the Court unanimously refused the Judgment, 
note. 

Tlie Lord Justice^Clerk observed — -That all the findings in the in- Opinion of 
terloeutor, in point of law, were perfectiy dear. Court. 

Lord Glenlee said — The trustee is not bound to take any steps 
as to the application to the Court for its sanction to a composition 
and the buikrupt's discharge, other than to prepare and transmit to 
the clerk of the sequestration a report of the proceedings of the 
meeting of creditors relative to the offer of composition. The 
trustee, in particular, has nothing to do with the obtaining of the 
consents of the creditors to the composition. Therefore, the first 
part of the prayer of the petition is incompetent, and not counte- 
nanced by any thing in die statute. 

The other Judges concurred. 

Lord Moncreifff Ordinary. For the Petitioner, P, Robtiisoh, If m. BetL Mm 

Mttckauie^ W. S. Agent. For the Respondent, Graham Bell, Ja$» MacdonaM, 
John P. JRvbcrtsorij W. S. Agent. JT. Clerk. 

S. 



394 DECISIONS OF THE Na 70. 



FIRST DIVISION. 

No. LXXIX. 1 Mardi 1832. 

JAMES GRANDISON BARR 

against 
DAVID CLYNE, et e contra. 

Law-Agent. — Act ov Sederunt 16 June 1819. — Pactum illi- 
ciTUM. — An agenif appointed by the Court in the usual toay to 
conduct the cause qf a pursuer on the poof's roll, having allowed an^ 
other agent who had been previously employed to take charge of the 
proceedings^ in which he advanced money^ and decree being obtained 
in favour qf the pursuer^ while the expenses for which the decree 
went out in name of the agent for the poor were paid to the other^ — 

. held^ that the agent for the poor was only entitled to such articles 
qfthe account qf expenses as applied to acts qf agency performed 
by himself^ or which he assisted in* 

In 1 824, the defender, Mr Clyne, was employed by John David- 
son to raise an action of damages against Sir Benjamin Dunbar^ 
(now Lord Duffus,) and after the summons was prepared and exe- 
cuted, Davidson applied for, and was admitted in the usual way^ 
to the benefit of the poor's roll. The pursuer, Barr, was the agent 
in the remit, but he took little or no charge of the proceedings^ 
which were carried on by Clyne ; and the cause was remitted to 
the Jury Courts the necessary expenses being defrayed by Clyne. 
On a motion in that Court by Lord Duffus to have the action dis- 
missed, on the ground of its not being conducted by the proper 
agent, Barr appeared, engaged to give his personal attendance, and 
to hold himself responsible as agent, and the motion was dismissed ; 
but Clyne still continued as formerly to take charge of the pro- 
ceedings, though Barr attended in the Court The trial having 
afterwards gone on, verdict of damages was pronounced in favour 
of the pursuer for L.189, 10s. and he was afterwards found entitled 
to expenses, amounting to L.d44 : 13 : 6. Decree for these went 
out in the name of Barr^ and also a charge against Lord Duffus ; 
but after a bill of suspension for Lord Duflfiis had been refused, the 
whole debt was paid, by authority of his Lordship, to a messenger 
employed by Clyne. 

Arrestments to a large extent having been used against Lord 



No. 79. COURT OF SESSION. S95 

Dnffut during the dependence of this action, he afterwards brought l Mar. 1888. 
an action of damages against Davidson, Barr and Clyne, on the '^-•y^^ 
groimd of an alleged malidons and oppressiye nse of the diligence ; ^' ^^ 
bot it was stated in the summons that Barr had not acted as agent 
in the canse, and that the proceedings (although in his name) were 
carried on ezclosively by Clyne. Separate defences were lodged 
for the different defenders ; but upon a denial by Barr that he had 
acted as agent in any part of the proceedings. Lord Duffiis granted 
a discharge in his fiBtvour of all the claims against him. 

The cause having afterwards been tried in the Jury Court, aver- 
dict was pronounced in £Eivour of the defenders, Davidson and 
Clyne. 

During the dependence of Davidson's action, Barr not being en* 
tided to act as an agent in tiie Admiralty Court, had requested 
Clyne to conduct, in that Court, die cause of one Johnstone, (a 
client of Ban^s,) which Clyne accordingly did. It was alleged by 
Barr, (though this was not admitted by Clyne,) that the pleadings 
were all prepared by him, although afterwards revised and subscribe 
ed by Clyne. Decree was ultimately pronounced in the Court of 
Session, (Dec 1826,) (to which the cause had been carried by a re- 
duction,) against Johnstone, and Barr applied to Clyne, in John- 
atone^s name, for his account of expenses, which was accordingly 
sent 

Barr then offered to compromise the claim on die footing of 
counter claims of expenses by him against Clyne in Davidson's 
case, but Clyne refused to accede to the proposal, or to refer the 
matter to arbitration, and brought an action against both Johnstone 
and Barr for the amount of his account, (L.82 : 7 : 2.) 

On the other hand, Barr brought the present action against 
Clyne for recovery of the sum of L.849, 13s. of expenses, allied 
to have been paid by Lord Dufius in Davidson's action, under de- 
duction of such sums of actual disbursements as Clyne could in- 
struct, and maintained, that as the agent for the poor, appointed 
by and responsible to the Court, in the action at Davidson's in- 
stance, and decree for expenses having gone out in his name, he 
alone was entitied legally to conduct the proceedings, and was 
therefore entitied to repayment of the expenses which had been 
found due, or, at all events, that he was entitled to decree of con- 
stitution against Clyne, to the effect of setting off the amount by 
way of compensation against the claim made by Clyne. 

. In defiance Clyne pleaded — That an action like the present, for Defender*! 
the avowed purpose of compensating his, the defender's, claim in ^^"^ 



896 



DECISIONS OF THE 



lf9.f&. 



Biiro. ClyMi 

Defender's 
Pleas. 



1 Mir. 1832. aaotber fictioo» and agaiost other purtie8» was incompetent^ md that 
hBf ike defender) having taken the sole charge of the prooeedtngs 
in Davidson's aotkm^ and having di^ursed the whole expenses, was 
eatitled to the expenses awarded, and that the action against him 
was untenable. If the pnrsuer, as the agent in the readt, had aay 
professional cfaaxge against Davidson, his aetipn should have been 
direeted against that pecson* The action against the defender, by 
whom the pursuer wsis not employed, was altogether unfounded. 



Pursuer's 
Fle*s. 



It^wrss an#iMredf-**That the defence was preduded by Ae act of 
fiedemnt, ( 16 Jime 1819^) feladve to the poorVi roll, wUeb pMvides^ 

< that no other advocate or agent than those appointed a» above 
^.shaU be omployed, or allow their names to be used in any stage 

< of the cause, iinless on an iqpplication to the Lord Ordinary or the 

* Court, by a note> to be signed by the advocate and agent already 
^ appointed, the assistance of one of ihe other advocates or writers 

< for the poor shall be spedally authorised ; in which case, those first 
^ appointed, and those so added, shall thereafter act conjunctly in the 

* cause f and that no such ftpplicadon or appointment having been 
made, it was incompetent and illegal for the defender to carry on 
the proceedings either with or without the pursuer's oonaent, and 
that if such consent had been given^ it would have been a pactum 
illicitum. 



Defender's 
Fleas. 



. MepUed^-This is too strict an interpretation. of the act of Sede* 
rant, which was passed for the protection of the lawyers and agents 
for the poor, and could not have been intended to prevent thein from 
allowing another agent, who could better undertake the outlay, to 
Conduct the cause in their name ; and that, supposing there was a 
pactum illicitum, the objection could not be pleaded by the pursuer, 
who himself had contravened the provisions of the act 

In the action at Clyne's instance against Johnstone and Barr, 
the Lord Ordinary found the defenders < jointiy and severally liable 
<.for the account libelled,' &c. ; and in a note observed, ^ he can see 
( no ground for compensating the pursuer (Clyne^s) demand, by a 
« daim made by the defender (Barr) against the pursuer in another 
< action. Each action must be decided on its own merits.' 

The defenders reclaimed ; but in consequence of the process being 
mislaid by tiie defenders before the advising, no interlocutor was 
pronounced by the Court. 

In the present action, the Lord Ordinary < finds the pursuer en- 
^ titied to the different charges for agency in the account of ex* 



No. 70. COURT OF SESSLON: 297 



< p^noea wd state of debt fibelled on; abd remUs to' tibe AuAiot to i Mar. 1S321 
* MoeKlna tko «noiint thereof and report,' fcc W^^^fe^ 

B«rr i». dyne. 



ClyM hftWiig reclatiiM^fy Z>)rri JUpay, at the tdvirii^y said — That Opinioik of 
1m ^ottld Aot coacitr in the strict iaterpra^diiHi which had heexx: ^"^ 
ptit bjr Alt puTBuer and the Lord OocEnaiy on the aet of Sede-» 
nsntf whkik had been paned for the protection of the imfyers and 
ageiHs foi thi^ poor, and to praTent causes feom being taiken out of 
their hands by the dienit and other agents^ after pevhsfie eoosider«N^ 
able outibj by the agent, and wlien die ease appeared to take afa*^ 
^onraMe torn* But it freqnendy ha^^pened that tibe agent bt the 
poor was enmUing, and perhaps nanal]^ to adsranee snms in oase^^ 
where mneh ontlay was required, and he conld not be compelled to" 
d» so; and in sack case& justice would be denied to the pisor liti- 
gant, if third puties, who had the aseans,' were hotaUewed to come 
fi»rwaid in the manner here done, and ti^e cfaaqfe of the proceed- 
ings* 

Lard Craigie took a different view of the question, and thought the 
itkterleeutor well founded, ih terms of the act of Sederunt, which 
was a wise regulation, and passed not merely for the protection of 
the agents and lawyers for the poor, but for the benefit of the pub- 
lic generally. Both parties had acted irregularly in the proceed- 
ings, and it occurred to his Lordship that both actions should be dis- 
missed, as contrary to law, and to the rules of the Court. 

The Lord President and Lord GiUiet thought that Lord Craigie 
was interpreting the act of Sederunt too strictly. The former ob- 
served, that by such an interpretation ruin might be entailed on 
parties admitted to the poor's roll. For instance, the present case 
(which was an action of damages, and in which great expense must 
necessarily be incurred in preeognoscing witnesses, and bringing 
them up from Sutherland^) had been remitted to the lawyers and 
agents for the poor. But how was all this expense to be defrayed ? 
It was certaidty net hiieiimbeBt on the lawyers to advlnce money^ 
and the agents who wm' generally among the yeusgest in Us ^lo- 
feasioB, might not feel very* wilKpg^ andindeec^ naigfat not hate die 
meaos of enoountering sogreat an ottday. in these cutoamstancfcs, 
if it ^^te net coinpeteal f^t infri^nd of the poor Utigant, who might 
have both the inclination and the means to assist Imny to take ehaarge 
of the proceedings, with the consent and under the controul of the 
agent Jfor dfe podr, the ^hdk wteU be, that the paupet wodd be' 
tHtned out:, of Co^rt, and Jose hia caaoe^ however well foimd&d. Ida 
groiixid of eetien noghJb be. Bui his Lordydp did not tinak tiieiiei 
was any thiug unlawful or incompetent in such interfer qnfte, pro- 
vided the agent for the poor, for whose benefit the act was peased. 



298 



DECISIONS OP THE 



Na.7d. 



Court. 



1 ifcr. lassi. gave his consent It was admitted by Clyne tliat the pnnuer was 
^"^^V^ entided to remuneration for all such acta of agency as were pefform- 
^* " ''' ^'^ °^ ed by himself, while the latter admitted that Qyne was entided 
opinioii of to deduction of all his actual outlay; but die pursuer could only 
prove hk agency by hii books, whereas it was adaiitled by him 
that there were no entries in his books applicable to diese proceed- 
ings *• dyne's bodes again, if referred to by the pursuer, would 
only disprove die fiict of his agency. All he was entided to claim 
was the expense of his attendance in the Jury Court, and such acts 
of agency as he. could prove. to have been performed by hims^. 
Their Lordships, dierefore, * Alter the interlocutor of the Lord 

* Ordinary reclaimed against, and find the puKSuer, Barr, entided 
^ only to such articles of die account of expenses as shall appear 

* to apply to acts of agency performed by the puiwier himself, <Nr 

< which he assisted in performing or conducting; and remit to Iki^ 

< Lord Ordinary to proceed fiurth^ in the cause as to him shall 
^ seem just, reserving all questions of expenses/ 

o/Fae. fScpe^J SoL-Gai. fCoMmrmJ Partjft Agent 5. Cleric 

c. 



Judgment. 



FIRST DIVISION. 



No. LXXX. 



2 March 1832. 



SCOTT AND GIFFORD 

againti 

MILLER AND KERR. 

Frocbss. — JuBT Trial. — Competent and Omitted. — Where a 
bill of excepticm hat been tendered at a jury trials an the ground 
qfan alleged misdirection of the Judge^ it is not competent Jbr the 
Courtf in reviewing the proceedings^ to entertain a ground qfex^ 
eeptionf yohich was neither taken at Ae trials nor contained in the 
bill o/ exceptions. 

The pursuers^ as owners of a vessel on wkicli tiie defenderSi as un- 
derwriters» had effected an insurance, and which was lost, brought 
an action against tiie defenders for payment In defence, it was 



• Thtt was fn^i«Sttfi< by him, on a diligence bdng grasted to recover eridenee. 



No. 80- COURT OF SESSION. 29» 

pleaded, inter alia, that» at the date of die contract, the pursuers 8 M«r. 1832. 
were not truly the owners of the vessel, but merely held it in trust ^^<^v^^ 
for one Manticka, a foreigner, in violation of the Registry Acts. „ ^^^ ^ 
It was answered, that the registry of the pursuers, as owners of the Kerr, 
vessel, afforded condusive evidence of die right of property, and 
could not relevantly be challenged. 

The Court, however, held, (25 Nov. 1828^ vide Fac CdO.) < that 
f the registry of the vessel in question, in the name of the pursuers 

< Scott and Gifford, is not evidence per se that the said vessel is 
^ truly thdr property, and that it is incumbent on the said pursuers 

< to prove the fiu^t by other evidence ;' and remitted the cause to- 
the Jury Court* 

Issues for trying the question were accordingly sent to a jury ; 
and, in the ooune of the trial, and after evidence was led by the 
pursuers, the defenders, among other witnesses, brought forward a 
derk to Messrs Potts and Greig, writers in Greenock, (now decea- 
sed,) who deponed, that in their books, which he produced, there 
was entered, in the handwriting of Mr Greig, a charge against Man- 
ticka, for a letter explanatory of the manner in which the pursuer 
Gifford held one-half of the vessel in question. The witness did 
not produce the letter, but deponed that he wrote it, that Clifford 
signed it, and that it stated that he held the vessel for behoof of 
Manticka. No objection was stated at the time to the competency 
of this evidence, and a verdict was pronounced, on one of the issues, 
in £Btvour of the defenders. The pursuers then excepted to the 
charge given by the Chief-Commissioner, but the bill of exceptions 
was tendered on the sole ground of an alleged misdirection in point 
of law. 

When the cause came to be heard on the bill of exceptions. 
Lord GiUies said, he had great doubts how &r the above parole 
proof, which was redted in the bill of exception, was legal and com- 
petent evidence of the contents of a written letter, it not being al- 
leged that the letter itself was lost or destroyed, and wished to 
know on what grounds it could be supported by the defenders. 

On the part of the defenders it was dbjecUdr^ThsX as the compe- Defendtn* 
t^dcy of this evidence was not excepted to at the trial, nor was ^'^^^ 
made a ground of exception in the bill, the objection could not now, 
according to the forms of jury trial, be entertained. 

It was . answered — That supposing it to be the opinion of the Punuen" 
Court that the verdict had been pronounced on improper evidence, ^^ 
it was consistent with the nobile offidum of their Lordships, and 
with the justice of the case, that a remedy should be afforded by 



300 



DECISIONS OF THE 



No. 80. 



2 Mar. 1832. them, alUioQgli the objeetioii hftd not been brougbt forward «tndtiy 
nceor&tng U> form. 



Scott & <7iffbrd 
v. MiFlct & 
Kerr. 



Opinion of 
Court.' 



Judgment 



Tlie pdiit beiag conridered of aome • difiority «id kwp o rttm ccy 
Ihelr Xoidohips dkl n^t at tke time deeide it; and wkeo the csoM 
came again to be advised, the Lord PreddeKt said. That he had 
eorrespoflded on the snljettwieh the X.ord Chie^aalke (Tindal) 
of the Ckmrt of CcmixMm Pieaiy and had senthanaoopyoCtiieblP 
of erceptioss ; and that hia Juotdsbip was clearly of opiirioii^ Aat, 
aocording to the ferais of the kw of England, it wao not eoiapplMt 
for the Covit to Bsten to any thing wUcb was pot^ontakved fai die 
bill of exceptions ; and in this opinion their LordsUpa now; nnaiii-* 
mously cononrrdd. 

The oaase waa aeeerdingly oi dated to ba heard on the e jtaeptkni 
token atihe trial 

Alt. JamesoHt ^vory. CmitpbtU ff M^DowaDf Agents. Jury Clerk. 

c. 



SSCOlfD DIVISION. 



No. LXXXr. 



8 march '1899; 



DROUGHTON 
CAMERON'S TRUSTEES. 



PnansroN to Heirs and Children. — SsRvtCE and CoirFiRSf a- 
TICK. — Rbrsoital and Real.— il person having conveyed hh^ 
estate to trustees^ during his lifetime^ Jbr ffie purposes ofmanage^ 

' mentj and of pending off' annuities andburdensj impfyrng -a long 
coarse of administration^ ttthiek might preheXbf exHend heyond ihe^ 
granted s lifetime^ and having provided for that event by naming 
the trustees Ms execuiorSf giving them directions for the payment 
of pr&oisfions to his widtm and younger children^ And declaring^ 
that before they should be < called upon to denude iyhisetdesi' 

< son, and premmpthe heiry in the extent of his decease, or other- 

< heir succeeding to him, he^ or such other heir so succeeding,* shall 
homologate and rattfy oH the actings (f the trustees i^^found^ 
that after the death of the gnmter there was no right vested in' 
tJie eldest son by the trust-deed vshich CQuld be carried by an ad- 

judication against him^ without taking any step, either hy service 



No. 81. COURT OF SESSION. 301 

or charge to enter heir^ to vest him with a right to the hareditas 3 M«r. 1832. 
Jacens of his deceased Jather, ^"^v^"' 

Broughton v. 
Cameron's 

In the year 1817, George Cameron of Letterfinlay conveyed his Trustees* 
estate to trustees, for the purposes of management^ and of paying 
off debts and annaities, provisions to his younger children, an an- 
nuity of L. 100, or such odier larger sum as the trustees, in the 
drcumstances of the estate, might think fit for the subsistence of the 
truster and his family, and a similar annuity to Gordon Cameron, 
his eldest son, ^ unti Ithe succession of my said lands and estate 

* shall open to him by my death/ Finally, the trustees were nomi- 
nated executors and universal legators t)f the granter, in the event 
of his deadi during the subsistence of the trust; and it was decla- 
red, that the trust should subsist until the whole debts mentioned in 
the deed should be paid off and discharged, < or the creditors there- 

* in consent that the present trust shall cease and determine, and 

< accept of the security of the succeeding heirs/ And also, tliat 
before the said trustees shall be called upon to denude * of the trust, 

< or of the lands and others foresaid, in &vour of the said Gordoii 
^ Cameron, my eldest son and presumptive heir succeeding me in 
' the event of my decease, or other heir succeeding to me, he, or 

* such other heir so succeeding, shall homologate, ratify, &c. the 
' actings of the trustees/ 

The trust-deed proceeded upon the narrative o( certain law-suits, 
and' a submission between the granter and his eldest son, and of a 
decreet-arbitral pronounced therein, and bore to be executed at the 
sight and with the approbation of the arbiters. 

The truster died during the subsistence of the trust, in Jun^ 
1829. He was succeeded by his eldest son, Gordon Cameron ; and, 
in November of that year, Broughton, a creditor of Gordon Ca- 
meron, raised an action of adjudication and declarator against him 
and the trustees, concluding for an adjudication of his right and 
interest in the lands, and that the trustees were bound, on the pay- 
ment and discharge of the debts mentioned in the trust-deed, to de- 
nude in fiivour of the adjudger, for payment and satisfaction of the 
debt due to him* 

Decree in absence, in terms of the libel, was pronounced in this 
action against Gordon Cameron, in May 1830 ; but he died in Sep- 
tember of that year, witiiout any steps having been taken during his 
lifetime, either by service, or charge to enter heir, to vest in him 
any right to the lands independent of the trust*deed. 

The question, therefore, came to be, whether there was aiiy right 
vested in him by the trust-deed, which could be carried by the ad- 
judication to his creditors. 

VOL. VII. X 



902 



DECISIONS OF THE 



No. 81. 



Brpogbloii V. 

TrusteMk 



&Mar* IfiSf. The Lord Ordinary pronounced the foUowiog inlerloentor and 
note : ^ The Lord Ordinary having heard partiaa* procumton, and 
considered the closed record and productions, finds, that the late 
Geor^f Cameron of Letterfinlay executed. In the year 1817, a 
tru0t«d«ed, oonveyiog the lands of Lettei&day and odien, as there 
specially described, to certain trustees, of whom the defender b 
now the sole sunivor, for certain parposea» and, inter alia, for 
those set forth in the summons : Finds, that the truster died in 
June 182 V, and that, in Norember of that year, an action of ad- 
judication and declarator was taised by the pursner against the 
late Gordon Cameron, eldest son and apparent heir of the said 
George Cameron, and against the trustees, concluding, li^ For 
the adjudication of the said Gordon Qiraeron's right and interest 
In the foresaid lands under the asid trust-deed, in payment and 
satifl&ction of certain debts due by Gordon Cameron to the pur- 
suer ; and, 2dfyt concluding, That upon the said ac|}udieation being 
decreed, It ought to be dedared that the trustees were bound, on 
the payment and discharge of the heritable and other debts men- 
tioned in the trust-deed, to denude and divest themselves of the 
whole of the said lands and estate in favour of ihe pursuer, for 
payment and satisfaction of the debt due to him : finds, that de- 
cree of abjudication in absence was pronounced against the-ttid 
Gordon Cameron, in terms of the libel, on the 27th day of May 
1880 : Fmds, that the said Gordon Caineron died in September 
of that year : Finds, that no steps were taken during the lifetime 
of the aaid Gordon Cameron, either by service or charge, to enter 
heir, or otherwise to vest in him m right to the said lands^ hide- 
pendcintly of the trust-deed ; and that consequently the effect of 
the foresaid adjudication is necessarily confined to such right as 
may have been actually vested in Gordon Cameron by the said 
trust-deed ; but finds, that the terms of the said tntst-deed were 
not suth as either to divest the truster, George Cameron, from the 
date of its execution, or even to create on his death any vested 
right in relation to the said lands in the person of the hte Gordon 
Cameron, his apparent heir ; and therefore finds, that the adju- 
dication obtained against the said Gordon Cameron was ine£^ 
tual in regard to the said lands, and cannot support the declara- 
tory concluttons of this libel against the defenders, this trustees ; 
and therefore assoilzies the defender, now the sole surviving trus- 
tee, from the conclusions of the action : Finds no expenses due to 
either party, and decerns/ 

< Note. — The terms of this trust-deed are rather unusuaL In the 
first place, however probable it may be, frmi the circumstances 
leading to its execution, that it was intended to divest the grahter 



No. ai. 



COURT OF SESSION. 



S03 



of all light during. his lifetime, it contains no clause suffiotent for S Mm*. 1839. 
that purpose. There is^ confessedly^ no express declaration to ^^"^V^^ 
that effect; and though the endurance of the trust beyond the eli^^^»"''* 
period of the truster's lifetime is clearly contemplated, the pur- Trustees. 
poses of it are not such as to be absolutely iujcompatible with its 
extinction during his lifetime. Indeed in one dause^-^that ap* 
pointing the trustees his executort-*^tfae existence of tho trust at 
lii» death is evidently considered only as a contingency. It nUm^s 
the trustees his executor*, < in the event of the decease of me the 
* said George Macmartin^ otherwise Cameron^ during the subsi^ 
< tence of this trust' 2dfy, The trust-deed, though providing that 
the trust shall subsist and endure until the heritable debts are 
paid, or the creditors consent that it shall cease and determine, 
does nowhere provide, as is usually. done, that the trustees, upon 
the termination of the trust, shall convey the lands in &voUr of 
Gordon Cameron ncHbinatim, or even generally in fieivour of the 
heirs of the grantor. In these dtcumstanoes the Lord Ordinary 
does not think, either that the grantor was divested by the execu- 
tion of the deed, or that any right was instantly created by it in 
favour of Gordon Cameron, on his father's death. After the exe- 
cution, of the deed the fee still remained in the truster, burdened 
with the trust The trustees were no doubt liable to be called on 
to denude, and to quit the possession on the extinction of the 
trust ; but, in the opinion of the Lord Ordinary, the right to en* 
force that liability was attached to the right of fee remaining in 
the truster, and consequently required to be taken up on his death 
by service, or some equivalent form^ before it could be effectually 
attached by adjudication. Of course these observations apply only 
to that general demand for the whole trust^state which is made 
in the present (Summons. It contains no conclusion as to the right 
to possess the farms of Muccomer and Tarness — a right which 
does not seem properly to arise under the trust, but which is made 
the subject of a separate action by the pursuer.' 



The pursuer reclaimed^ and pleaded^^^hsX the trust-deed being Pursuer** 
onerous in so far as Gordon Cameron's interest was concerned, be- ^^'^ 
cause it proceeded on a decreet-arbritral in which he was a party, 
and which was prononnced to secure his rights under his father's 
marriage-^contract, was irrevocable by the truster ; and that Gor- 
don Cameron was therefore the only person who doutd fall on 
the trustees to denude* He had, consequently^ a vested right by 
the trust-deed it^lf^ which it was not necessary for him to take up 
by service of his fhther. He was in fact creditor of his father un- 
der the decreet-arbitfat, and the trustees held the reversion of the 

xl2 



804 



DECISIONS OF THE 



No. 81. 



3 Mar. 1832. estate for his interest and behoof. This right, therefore, of calling 
them to account, was vested in his person, and fell under the adju* 
dication led against himy without the necessity of any other step* 



Broughton v. 

Cameron's 

Trustees. 



Defenders* 
Answers. 



Opinion of 
CourU 



The defenders answered — That the sole question was, whether 
any right was vested in Gordon Cameron, independent of what he 
might take up as heir to his fiather, by the conception of the trust*' 
deed ? And it was plain that there was not ; for the trustees are 
not directed or authorised to denude in his favour, lior had he any 
right to call upon tliem to account, except in the character of heir 
to his father, which he could only take up by service to him. 

The Court (Lord Cringletie dissenting) thought that the judge- 
ment of the Lord Ordinary was well founded. 

Ijord Qletdee. — I do not see any use of the clause in the interlo* 
cutor which finds that the terms of the trust-deed were not such as 
to divest the truster from the date of its execution, or what effect that 
can have on the matter before us. We have nothing to do with 
any right which Gordon Cameron may have had under his father's 
contract of marriage, or under the decreet-arbitral. The only thing 
carried by the decree of adjudication is his right under the trust* 
deed. , It is the only writing refened to or called for in the sum- 
mons ; and it is sufficient to support the interlocutor to find, as can- 
not be disputed, that the terms of that deed do not convey to him 
any vested right which can &11 under the adjudication. No doubt 
Gordon Cameron might have called upon the trustees to denude in 
his favour, but he could not have done so in consequence of any 
right conveyed to him by the trust-deed, but only as heir to his 
father, or under some other title, as creditor under the marriage- 
contract or decreetrarbitral. Now, it is sufficient to support this 
interlocutor, that the only right carried by the adjudication is his 
claim under the trust-deed. It might have been a different question 
if the trust-deed had directed the trustees to denude in his favour, 
or had conveyed any direct right to him. In that case, the adjudi- 
cation might have carried it. 

Lord Cringletie, — The only difficulty that I have arises from the 
admission, that Gordon Cameron might have called on the trustees 
to denude, by taking on himself tlie burden of the debts, and other 
purposes of the trust. It is very true that there is no direct obli- 
gation on the trustees, by the terms of the deed, to do so ; but 
there is certainly an implied one. He is acknowledged as the eld- 
est son and heir of the granter in the outset of the deed ; and the 
marriage-contract and decreet-arbitral, upon which his right is 
founded, are both narrated. He was also himself one of the trus- 



No. 81. COURT OF SESSION. 305 

tees nominated and appointed in the deed. There is no clause di- 3 Mar. 183^ 

rectly obliging the trustees to denude at all ; but it is taken for ^^^V^^ 

granted that they are to denude, and that Gordon Cameron is the cimeroi?" ^' 

person in whose favour they shall do so, by the clause which de- Trustees. 

clares, < that before they shall be called upon to denude in favour 

^ of the said Gordon Cameron, &c., or other heir succeeding me/ 

he or they shall be bound to homologate and ratify their actings. 

Now, my difficulty lies here ; suppose Gordon Cameron had come 

forward and offered to discharge the debts, or to find security to the 

sadsiaction of the creditors, and had called on the trustees to denude, 

could they have refused to do so until he had taken up the right to 

call them to account by a service as heir to his father ? I think it 

would have been sufficient for him to have said, that the purposes 

of the trust are now fulfilled, and I am the person in whose fevour 

you are directed to denude. 

The Lord JusHce'CIerL^^l am of the same opinion as Lord 
Glenlee. I agree with him that the clause of the interlocutor, 
which finds, that the terms of the trust-deed were not such as 
to divest the truster, is perhaps unnecessary ; but the subsequent 
finding is quite sufficient to support the judgment I cannot con-' 
cur with Lord Cringletie in tlte construction of the clause referred to 
by him, as implying that the trustees are to denude in favour of Gor-* 
don Cameron, because that clause refers to the trustees being called 
upon to denude by the said Gordon Cameron, my eldest son, and 
presumptive heir, &c., ^ or other heir succeeding to me, he, or such 
^ other heir so succeeding, shall, in the first place, homologate, ra- 
< tify and confirm the acting of the trustees ;' — thereby clearly in- 
dicating, that it was only in the character of heirs of the truster 
that any person could call upon the trustees to denude, and that a 
service was necessary for that purpose. 

Lord Meadowbank concurred with the Lords Justice*Clerk and 
Glenlee. 

The Lords accordingly, in respect that the trust-deed did not Judgment. 
convey any right to Gordon Cameron, refused the note. 

Lord Ordinary, FuHertoti, AcL S. Mere and Pattntm. Alt. Boyd Greauikidd» 

and Shaw. Scoii, FuuUay jf BaUersUm, and Wm, Mackenzie, W. S. Agento. 
T. Clerk. 

u. 



3(le DECISIONS OF THE No. 82. 



SECOKD DIVISION. 

No. LXXXII. 8 March 1832. 

BROUGHTON 

CAMERON'S TRUSTEES. 

Hebitabls and Moveable. «—7%e arrears of an armuiiy are mave^ 
abkj and no right to them U carried hy ajt adfudicatien ted agamtt 
the anamiant. 

In the trust-deed executed by Mr George Cameron of Letterfinlay, 
mentioBed in the preceding report, provision was made for the pay- 
ment of an annuity of L.100 per annum to his eldest son, Grordon 
Cameron, during the lifetime of the truster ; and by a subsequent 
dause in the deed it was declared, that ^ aa the annuity gpranted to 
the said Captain Gordon Camerooi is only meant to continue du- 
ring die lifetime of me^ the said George M^Martin, otherwise 
Cameron, it is hereby decfaffed, that the same shall cease at my 
death accordingly ; mid in Ueu thereof, the said trustees are here- 
by directed to put and continue him in possession of the fimns of 
Muocomer and Tamess, free of all rent,^ &c. ' And upon the 
deadi of the said Ci^tain Gordon Cameron, if sudli should happen 
before the purposes of this trust are canried into execution, to put 
the heir or heirs entitled to succeed to my said lands and estate, 
in their order, in possession of these £snns, and that free of rent»' &c 
Mr Broughton having, as above mentioned, obtained decree of 
adjudication against Gordon Cameron, of date 27 May 1830, 
raised a supplementary summons against the trustees, executed on 
the 23 August 1830, in which he concluded, ^first^ for the arrears 
of the annuity, wUch he alleged were unpaid up to the term imr 
mediately preceding old Mr Cameron's death, viz. Whitsunday 
1829 ; second, for the rents of the fiurms of Muccomer and Tamess 
since that term ; and, thirdly, to be put in immediate possession of 
these farms, and to hold the same free of rent, until the debt con- 
tained in the decree of adjudication should be extinguished. 

Gordon Cameron died, as already mentioned, soon after this sum- 
mons was raised, viz. in September 1830. 

The surviving trustees gave in defences against this action, in 
which they pUaded-^first, That the decree of adjudication obtained 



No. 82. COURT OF SESSION. 391 

in 1630, could not transfer any right to demand the arrears of an 3 Mar. 1838. 
annuity which had expired at Whitsunday 1829. Second, ThsLtGor^ '^•^V^^ 
don Cameron's supposed right to possess the &rms of Muccomer ^J[^^J|IU "' 
and Tarness expired at his death ; and that the decree of adjudica- Trustees. 
tion could confer no title on his creditors to demand possession 
thereafter; and, thirdy That, in point of fact, Gordon Cameron had 
been in possession of those farms from the period of his father's 
death to his own. It was also objected, that the parties interested 
in the alleged arrears of annuity, and the rents of the farms for the 
year 1829-30, viz. the nearest of kin of Gordon Cameron, had not 
been called. 

The Lord Ordinary pronounced the following interlocutor : 
The Lord Ordinary having beard parties' procurators, and con- 
sidered the closed record, in respect that the arrears of annuity 
concluded for do not competently form the subject of adjudication, • 
sustains the objection to the title in regard to the conclusion for ^ 
the arrears of annuity of L.lOO, prior to Whitsunday 1829; and 
in regard to the conclusion for putting and continuing the pursuer 
(the adjudger) in possession of the farms of Muccomer and Tar- 
ness, finds, that the clause in the trust-deed on which that con- 
clusion rests was applicable, personally, to the late Gordon Came- 
ron, as the heir entitled to succeed to the lands of Letteriinlay ; 
that the right of possession, after his death, devolved, by the terms 
of the trust-deed, on the next heir, and therefore was not attach- 
able by Gordon Cameron's creditors : Therefore assoilzies the 
defenders from the above-mentioned two conclusions of the action, 
and decerns. And in regard to the conclusion for the rents of 
these farms of Muccomer and Tarness, from the death of the 
truster, and during the lifetime of Gordon Cameron, appoints 
the case to be enrolled, with a view to a disposal of the question 
of feet at issue between the parties, whether the late Gordon 
Cameron was or was not in possession of the said farms from the 
death of his father until his own death.' 

The pursuer reclaimed ; and the present action was advised Judgment, 
along with the preceding case ; but the Court was unanimously of 
opinion that the above interlocutor was well founded, and refused 
the note. 

Lord Ordinary, FvUerton, Parlibus, tU supra. T, Clerk. 

u. 



808 DECISIONS OF THE No- 88. 



SECOND DIVISION. 

No. LXXXIII. 3 March 1832. 

JOHN HAMILTON 

against 

BENNET AND Oth£B8. 

Expenses. — Proc]sss«— /n a ranking and sale^ the Lord Ordinary 
and the Court having sustained objections of certain creditors to the 
order of ranking^ withoid any finding or reservation as to expenses^ 
a subsequent application to the Lord Ordinary for expenses found 
incompetent 

In the ranking and sale of Gairdoch, objections to the prepared 
sts^te were lodged by Bennet and others, which being advised with 
answers, were sustained by the Lord Ordinary, and afterwards by 
the Court, upon a reclaiming note by Hamilton, the common agent, 
without any finding by either as to expenses, (see siune parties, 
14 Feb. 1832.) Thereafter, upon the motion of the objectors, 
the Lord Ordinary foimd them entitled to expenses. This inter- 
locutor was reclaimed against, on the ground that it was incompe- 
tent to go back to the Lord Ordinary to ask expenses, the judgment 
of the Court being altogether silent on the subject, and the inter- 
locutor reviewed not being an interlocutory order but a final judg- 
ment in the cause, against which the common agent would have 
been entitled to appeal. 

Answered — The Lord Ordinary did not originally give expenses 
jM>lely because the case was, notwithstanding the interlocutor, still 
before him ; Logan v. Burk, 27 Jan. 1824. 

The Court unanimously altered the interlocutor, on the ground 
that their judgment affirming that of the Lord Ordinary determined 
the whole question between the parties, the case having returned 
to his Lordship merely for the purpose of directing the common- 
agent to alter the order of ranking accordingly. 

Lord Medtopif Ordinary. For the Common Agent, JTeoy, MarshalL Party, 

Agent. For the Objectors, Dean of Fac- (Hope,) Ad. Anderson, And, 

Scott, W. S. Agent, T. Clerk. 

S, 



No. 84, COURT OF SESSION. 30a 



SECOND DIVISION. 
No. LXXXIV. 3 March 1832. 

TROTTER AND Others 

against 

THE BURNTISLAND WHALE FISHING COMPANY. 

Proof. — Nuisance. — Interdict. — Interim irUerdict^ granted in 
the BiOrChamber agaimt the manufactory of whale oil^ recalled 
after the record was made upy to the effect of allomng an experi- 
ment of the manufacture to be madcj with a view to a jury trial of the 
question of nuisance. 

The interlocutor in this case, of date 7 December 18S0, (vide 
Fac« CoIL) having been affirmed in the House of Lords 1 October 
1831, and a record afterwards'made up, the Lord Ordinary, in ac- 
cordance with an opinion expressed by the Lord Chancellor, < before 
^ answer, allows an experiment to be made, whether the respondents' 
( manufiicture, as condescended on, would be a nuisance, or hurt- 

< ful, or offensive to the property of all or any of the complainers, 

< or persons residing thereon, and that by the respondents carrying 
( on the said manufiicture for such a time as will be sufficient 

* for such experiment ; but this under the inspection and direc- 
^ tion of Professor Sir John Leslie, whom failing, &c. ; with 
^ power and instructions to the said inspector to fix the time of be- 

< grinning the working, in so far as may appear necessary to insure 

< that it may be fairly tried, and to stop die said working as soon 
' as the experiment shall appear to him to have been sufficiently 
^ made ; four days' notice being always given to the agent for the 
' complainers of the time fixed for the experiment, under the hand 

< of the agent for the respondents, by delivery to him personally, 

< or at his office, and to report to the Lord Ordinary on the na- 

* tnre and result of the said experiment ; and recals the interdict to 
« the above effect only, — ^and with power and instructions to admit 

* two or more persons, to be named by each party, to be present at 

< the experiment, besides the respondents and their workmen.' 

The respondents reclaimed, but the Court unanimously adhered. Judgment. 
adding, however, a recommendation to the inspector to take the as- 
sistance of some persons practically acquainted with the operation 
in question. 

Lord Ordinary, Mackenzie. For the Sufpenders, SoL-Gen. (CocJdmnitJ RiUhar- 

Jwrd. John Leven, W. S. Agent For the Respondents, Dean of Fee. 

(Hope,) A, McNeill A* P, Henderson, Agent. T, Cierk, 

S. 



310 DECISIONS OF THE No. 85. 



SECOND DIVISION. 
No. LXXXV. 6 March 1832. 

CHRISTOPHER SMYTH 

m 

against 
GEORGE ROGERSON. 

Arrestment, — Warrandice. — Tack. — Wheie a sublease^ 
with warrandice from fact and deed only^ gives a right to possess 
in terms of the absolute warrandice of the principal lease^ but no 
direct claim against the gratder, an heir of entail ; and the prin- 
cipal tenant brings an action of relief and damages against the 
grantef^s representatives^ in consequence of a reducticn cf the 
lease and suUeatef brought by a succeeding heir of entail ; an 
arrestment by a creditor of the subtenant^ used in the hands of 

m 

the principal tenant^ after bath were removed from the landt, duc- 
ting the ewrremy of the lease, but before aag damages were reeo- 
veredt or even liquidated^ found effeetuai to attach the stAtenoTsfs 
claim^ 

The late Jdkn Jchnatoae obtained a lease from the late Duke of 
Queensbetry of the ftnaof Feniieisaiig^ for nineteen years from 
Whhninday 1806. Johnsloiie affaerwank assigited the lease to 
William TbomflOD; and snbsequentlyy in 1810, these penons 
giapted a sublease of this fiorm^ for the remaining peciod of the prin- 
cipal lease^ to John Calvert; The original lease was granted with 
abflokrte warramfice^ and that of the sublease was cositBined is die 
loUowing dbuiae : < Said &rm to be tkoiceforth peaceably possessed 

< by the said John Calrert and his foresaids^ in terms of the wairan- 
^ dice by his Graoe^s CommissioHer in liic said ptinctpal lease ; 

< and whici sabset the granteis hereof bind tfaaaaehres^ and their 
' ketis and swccesMrsy to warrant from all facts and deeds done by 
^ them prejudicial dieretot' 

The lease cf Peiuiersau^;ks wai^ along with the otb^ lanes on 
the Queensberry estate, reduced at the instance of the Duke of 
Bttodeugh, and the tenant and subtenant were» in censeqaence, 
remored ia 16S2^ being three years befoee the exptratioii of tie 
pdrindqpail leaae and Sublease. 

Meanwhile, in December 1821, Thomson, the assignee of the 
principal lease, and Mtiyor Johnstone, the son and heir of the ori* 
ginal tenant^ brought an action against the executors of the Duke 



No. 86. COURT OF SESSION. 31 1 

of Queensberry, reciting the lease « to John Johnstone, his heirs, 6 Mar. 1 8:^2. 
^ assignees and subtenants^' and the reduction at the Duke of ^^^s/^^ 
Bucdeugh's instance, and concluding, that the defenders should be ^^^ ^' ^^ 
decerned and ordained * to maintain and defend the pursuers and 
' their foresaids in the peaceable possession of the said lands and 
' others, let by the said tack, in manner foresaid, during the whole 

< years and terms thereof^ and according to the terras and under the 

* conditions therein specified, and to make payment to them of the 

< expenses incurred or to be incurred by them in defending the said 

* process of reduction, and generally to relieve them of the said ac- 
^ tion, and all its consequences ; or otherwise, the said defenders 

* should be decerned and ordained, by decree foresaid, to make pay- 

* ment to the pursuers of the sum of L. 1 0,000 sterling, or such 

* other sum as shall be ascertained in the course of the process to 

* foUow hereon, as the loss and damage occasioned to the pursuers 
*■ by the said defenders, as disponeesand executors foresud, in terms 

< of the obligadons by the said deceased William Duke of Qneens- 

* berry, in the tack foresaid.' 

The result of this action was, that on tiie 11 June 1828 the 
pursuer, Thomson, recovered damages, including those to which 
the subtenant Calvert had a claim, for the Idss of possession of 
the farm for three years that remained of jthe period of the tease 
when the removing took place. 

On the 31 May 1827, Christopher Smyth, as a creditor of Cal- 
vert, used an arrestment in the hands of Tliomson, on 6 July 1828. 
George Rog^rson, another of Calverf s creditors, in like manner 
used an arrestment in Thomson's bands ; and the former creditor 
having brought a multiplepoinding in name of Thomson, the mahi 
question there discussed was, whether Calvert's daim or right to the 
dunages which formed the fund in miedio was an arrestable subject 
pri<Nr to their being liquidated and recovered, Smyth's diligence 
having been used before such liquidation and recovery, whfle Ro- 
gerson's arrestment was of a subsequent date. 

The Sheriff of Dumfries, before whom the multipIepoui<fing 
was brought^ preferred Rogerson's claim, holding that of Smyt^ 
^ inept, In respect tiie arrestee had no fundis in his hands, at the 
^ time Bmyth's arrestment was used, belonging to the common debt- 

< or, nor was under any obligation to account to him.' 

The cause was advocated at the instance of Smyth, who, besides, 
brought a reduction of Rogerson's arrestment. The Lord Ordi- 
nary * found, that the fund in medio did not come into the raiser's 
'hstnds till II June 1828; and that although pricMr to that date 
* Qdvert, the cottmon debtor, had a claim of damage competent to 

< him against the raiser, it could not be the subject of arrestment 



312 



DECISIONS OF THE 



No. 85. 



Smyth V. Ro* 
genoD. 



6 Mar. 1832. < at the instance of any creditor of his, till it was liquidated and 

* received by the raiser, and that therefore the arrestment used by 

< the advocator Smyth, upon the 31 May 1827, was inept : Found 

< that the respondent Rogerson used an arrestment in the hands 

< of the raiser on the 16 July 1828 :' Found the objection against 
Rogeison's arrestment could not be pleaded by Smyth to the effect 
of setting aside that diligence : Therefore repelled tlie reasons of 
reduction, and assoilzied the defender from the reduction ; ' and 
' upon the whole advocated the cause, preferred the claimant Ro- 
^ gerson on the fund in medio to the amount of this debt, and found 

* the advocator liable in expenses.' 



Ad?ocator*t 
Pleas. 



The advocator reclaimed, BXiApleaded — The judgment in the case 
of Macg^ Maxwell v. the Queensberry Executors, 11 July 1827, 
having been reversed on appeal, 12 Oct. 1831, it must be held as 
a fixed point in the present case, which is in all material circum- 
stances similar to that of Maxwell, that a claim of relief and damages 
was not competent to Calvert, the subtenant, directly agaixist the 
Queensberry executors; and, therefore, an arrestment used in their 
hands by a creditor of Calvert would not have been effectual. A 
consequence of this must be, either that there was an arrestable 
daim, in favour of Calvert, against the grantezs of the sublease, or 
that there was here a fund which was not attachable at all. But 
according to the judgment of the House of Lords, Thomson, the 
assignee of the principal lease, had in him the only jus exigendi as 
to any damages in which the executors were liable ; and, according- 
ly, the object of the action at Thomson's instance against the exe- 
cutors undeniably was to relieve the pursuer and his subtenants of 
the consequences of the reduction at the instance of the Duke of 
Buccleugh. When, therefore, he thus claimed from these parties 
such damages as were due to the subtenant under his lease, he acted 
in the character of trustee for him ; and it has been repeatedly 
found, that an arrestment in the hands of a trustee is effectual 
for attaching funds, which, at the date of the diligence, have not 
been realised. It is not therefore of the least consequence when 
the money was paid to Thomson. His liability to account to Cal- 
vert, the subtenant, is the criterion of the right to arrest ; BeU, ii. 
74. and 75. 



Respondents* 
Pless. 



It was answered — Thomson, the granter of the sublease, only be- 
came debtor to Calvert the subtenant by actually receiving the pro- 
portion of damages due to him. The warrandice of the sublease being 
simply from fact and deed, there was previously no pecuniary claim 
or debt competent to the latter against the former. But at the 



No. 85. COURT OF SESSION. 813 

date of the advocator's arrestmeiit the damages in question were 6 Mar. 1832. 
not even liquidated. It is true, that, under his lease, Calvert might ^^V^^ 
have a right to compel Thomson to take the proper steps against gerLn.* 
the Queensberry Executors for recovering the damages due to him 
as subtenant ; but this could only found a right to adjudge Thom- 
son's right of action against these executors. The action at Thom-- 
son's instance against them had not the effect of constituting him 
Calvert's debtor. The summons did not refer to any claim that 
might be made against the pursuer by his subtenant, and, in fact, 
no such claim had been made. Nor can it be said that there was, 
at any period, a trust created in him for behoof of Calvert, in re* 
ference to the claim of damages competent to the latter. But in all 
cases, other than that of a trustee, diere must be actual possession 
of the fund or subject in order to sustain an arrestment ; Carmichael 
t7. Mosman, 22 June 1742, C Home^ M, 740 ; Stalker v. Alton, 
9 Feb. 1759, M 745. 

The Lord Juatice'Clerk said-^In consequence of the judgment Opinion of 
of the House of Lords in MacgiU Maxwell's case, I must hold it to 
be settled law, that no subtenant has any direct action against the 
granter of the principal lease, when there is not an assignation to 
the landlord's warrandice. In the present case, therefore, Calvert 
had no immediate claim against the Queensberry Executors. But, 
on the other hand, though Thomson, and Johnstone the principal 
tenant, only granted warrandice to Calvert from their own fects and 
deeds, the sublease bore that he was to possess the farm in terms of 
the warrandice in the principal leaie, which was absolute warran- 
dice. Accordingly Johnstone, in 1821, made a claim against the 
Queensberry Executors, not only for his own damages, but also for 
those due to the subtenant The undoubted certainty of the claim 
against the executors must be assumed here, and that it was only 
the quantum of damages that remained to be* ascertained. There- 
fore the advocator's arrestment was of an obligation against Thomson 
to account for what he should receive as damages, certainly and 
truly due to Calvert. The cases of Kyle's Trustees, 14 Nov. 1827, 
and Lothian, 27 Nov. 1828, shew, that an obligation by parties as 
trustees, to account for what they should afterwards recover, is an 
obligation that may be effectually arrested. Thomson's claim 
against the executors, which included that of Calvert, was just an 
^'-aisknowledgment of his obligation to account, or of his pursiung, as 
to the subtenant's claim of damages, in the character of his trustee. 

Lord Gkfdee. — I confess I could not agree with the Lord Ordi- 
nary's interlocutor ; and, on the other hand, I thought the Sheriff's 
interlocutor well founded. But on the supposition that, in 1821, 



SU DECISIONS OF THE No. 86. 

a iwur. 1832. Thomson raiaed an action against the Qaeensberry Exeaitora, ae- 

'""^V^^ knowledging his oblation to account to Calvert, the case comes 

tejitb V. Ro- ^^ ^^^ ^1^^ decided cases alladed to by your Lordship, that I would 

be for sustaining the advocator's arrestment 

Opmwn of j^j Cr/ii^fcftV.— This is just my doubt, whether there was an 

acknowledged obligation on die part of Thomson to account to Cal« 
vert The question, as it appears to me, comes to this, niiether 
Thomson was under an obligation to Calvert to do any other thing 
than simply to grant the assignation to the warrandice of the prin* 
cipal lease ? I would have been satisfied if there had been audi 
an assignation ; for what puEzled me was, whether there was here 
a direct obligation to account on the part of Thomson* 

Isord Meadowbank. — The difficulty suggested by Lords Glenlee 
and Cringletie appeared to me to be removed by what was stated 
from the chair, in reference to Thomson's action, including the sub- 
tenant's claim. Both parties plead, that Thomson was, in cons^ 
quence, liable to Calvert for a proportion of the damages which he 
should thereby recover from the representatives of the granter of 

/ the principal lease. If the judgment of the House of Lords in 

Macgill Maxwell's case be correct, was not Thomsmi, by his own 
act and deed, placed in the predicament of being a trustee,, bound 
to recover from these parties the damages in question, for behoof 
of hjls subtenant ? and if so, according to the decisions in similar 
cases, the advocator's arrestment must be competent While,. theBe- 
fore, I am clear, that the principle laid down in Ae Lord Ordi- 
nary's interlocutor is erroneous, yet, in the circumstances^ I cannot 
go back to that of the Sheriff, 

In consequence of these opinions the case was allowed to stand 
over, that the parties might inform the Court more particularly in 
regard to the nature of the action at Thomson's instance against 
the Queensberry Executors, 

The question being thereafter resumed, the Lord JusHce^CUrh 
said — I have seen no reason to alter the opinion which. I f<»inerly 
expressed. I take into view the distinction between the present 
and the case of Macgill Maxwell, so much relied on by the respon- 
dent, viz. that there was absolute warrandice by the granter <tf the 
sublease in the latter, while in the former Thomson's warrandice 
was only from his own fact and deed* But Thomson gave Calvert 
a right to the absolute warrandice in the principal lease, and if he had 
notwithstanding acted so iniqultously as to refuse to proceed against 
the representatives of the granter of the principal lease, a court of 
law would have given redress. It now appears that the summons 



No. 8S. COURT OF SESSION. 315 

at Thomaon's instance against the Qneensbeny Executors stated, e Mar. lass. 
that the reduction raised by the Duke of Bucdeugh was served on ^«^v^^ 
Calvert, and it concluded, that the defenders should maintain the ^^^ '* ^^ 

ffenoiu 

pursuer and his subtenant in possession, or pay damages for the 

loss of it Thomson was thus in the regular course of getting the ^^^" ^^ 
general claim of damages liquidated, and in due time he conde- 
scends on Galverf 8 claim. I cannot make any distinction between 
the case where a party, as trustee, is bound to recover and account 
and the present case, and in the former it has been found that there 
is an arrestable interest. 

ZiOrd Cringletie. — If this case had occurred before the judgment 
of the House of Lords alluded to, I should not have thought that 
there was here arrestable interest. But, as a consequence of that 
judgment, it was competent to the subtenant to go directly against 
the granters of his lease, to compel them to make good his claim of 
damages ; and I tiunk this was, in the circumstances, an arrestable 
interest 

Lsrd Gbniioe..^ When the common debtor has a vested right to 
call another to account, it does net rignify, in regard to such a 
question as the present, whether the fund has been recovered* No 
doubt Thomson was bound, by the very nature of the thing, to pay 
over to Calvert whatever damages he might recover from the 
Qaeensberry Executors, so £Eur as Calvert's claim extends, though 
it may be doubtful whether he had originally and apart from the 
action against the executors, undertaken any obligation to Calvert 
to recover sudi damages ; and perhaps this may do, for it will be 
understood^ that the judgment proceeds on there being a vested 
right in Calvert to call Thomson to account, as at the date of the 
fint arrestment in Question. 

Lord Mead(wbank.-^1 concur in what has been said from the 
ehair. 

The Courts accordingly, ^ in respect that, at the date of the ar- judgmenu 

< restment used by the advocator, diere was a vested right in Cal- 
' vert, the common debtor, as a subtenant, to call Thomson, the 

< principal tenant, to account for and communicate to him his due 

> pr<^rtion of the damages to be recovered by him from the Exe^ 

> cutors of the Duke of Queensberry, alter the interlocutor in the 

* advocation, and prefer the advocator prime loco on the fund in 

* medio, to the extent of the debt covered by his arrestment ; find 

< it unnecessary to determine the points raised in the process of re- 
^ duction ; find expenses due,' &c. 

Lord Medwyn, Ordinary. For the Advocator, Dmm qfFae. f Hope, J Qraham 

BeB, /. Bisset and J, MbrriBon, Agents. 'For the Respondent, SkeM, lUid, 
WiUiam Stewart, W. S. Agent. T. Clerk. 

s. 



316 DECISIONS OF THE No. 86. 



FIRST DIVISION. 

No. LXXXVI. 6 March 1832. 

JAMES STEWART and CURATOR 

against 
JAMES BAIKIE, ALEXANDER STEVENSON, and 

ALEXANDER SCOT. 

Tutor. — Curator. — Pupil. — Factor. — Cautioner.— Pro- 
cess. — I. It being found that a gift of tutory in favour of three 
individuals^ appointing them tutors^dative to a pupil, ^without men-- 
tion of a quorum or survivorship, did not fall by the death of one 
of them, — held, \st, that the cautioner for the tutors continued 
bound for all their actings and intromissions, and for those of a 
factor appointed by them ; and, 2dly, in like manner, that the cau- 
tioner for the factor continued bound for all his intromissions, and 
voas liable in 7'eliefto the tutorial cautioner, 

II. After the record is closed, it is incompetent to give in a 
minute conttiining averments not made therein "*. 

In the year 1814 a gift of tutoty-dative, in the following terms, 
was obtained from the Court of Exchequer in favour of Mrs Marion 
Stewart, (the pursuer's mother,) Thomas Strong and Alexander 
Stevenson,'— < Nos fecimus, constituimus, et ordinamus, dilectos 

< nostros, Magistram Marionam Stewart, Thomam Strong, et Alex- 

< andrum Steveilson, tutores-dativos dicti Jacobi Stewart, ac admi- 
^ nistratores omnium et singularum terrarum suarum hii^editatum 

< possessionum, bonorumque omnium mobilium et immobilium, u»- 
^ que ad ejus legitimam »tatem pervenerit; proviso tamen quod 

< diet* Magistra Mariona Stewart, Thomas Strong, et Alexander 

< Stevenson, faciant et perimpliant dioto Jacobo Stewart omnia et 

< singula qu» tutor dativus de jure seu regni nostri consnetudine 
^ &cere et perimplere tenetur. Et cum ad ipsius legitimam setatem 

< pervenerit, sibi et propinquioribus suis amicis de dictis terris, fir- 
* mis, reditibus et bonis, fidelem computum et ratiocinium reddant' 

The bond of caution, in which the defender, Mr Baikie, was a 
co-obligant, was in these terms : ' We, Mrs Marion Stewart, other- 
^ wise Strong, relict of the deceased James Stewart, last of Brugh, 

< Thomas Strong, merchant in Leith, and Alexander Stevenson, 

• Sec foot note, p. 328. 



No. 86. COURT OF SESSION- 317 

* writer in Edmbuighy as principals^ and with and for us, James 6 Mtr. 1839. 

* Baikie, Esq. of Tankemess, as cautioner in manner and to the ^"^^V^^ 

< effect afifcer mentioned, considering that his Majesty, with advice b2^&c?* ^* 

< and consent of the Right Hon. the Barons of his Court of Ex- 

* chequer in Scotland, hath by gift,' &c. and after narrating the 
terms of the gift, the deed proceeds, < Wit ye us, therefore, to be 
^ bound and obliged, as we Uie said Mrs Marion Stewart, otherwise 

* Strong, Thomas Strong, and Alexander Stevenson, as principals, 
^ and I, the said James Baikie, as cautioner, bind and oblige our* 
^ selves, conjunctly and severally, and our heirs, executors, and suo- 
^ cessors, to make just count, reckoning, and payment to the said 
^ pupil, when he shall arrive at the age prescribed by law, of all in- 
^ tromissions, omissions, commissions, and acts of management, had 
^ by us, the said tutors, under and by virtue of the said gift, as ao- 
^ cords of the law ; and that we, the said tutors, shall give up inven- 
^ tories of the said pupil hb whole means and effects, both heritable 

< and moveable, conform to and in terms of the act of Parliament 

^ made thereanent, and that under the penalty of L.200 sterling, ^ 
^ over and above performance. And we, the siud tutors, bind and 
^ oblige us, and our foresaids, jointly and severally, to free and re- 

* lieve the said James Baikie, and his foresaids, of his cautionary 
^ for us in the premises, and of all damages and expenses he may 
^ sustain theretJirough, in any manner of way whatsoever.' 

The tutors so appointed entered upon the management of the 
pupil's property. By the following deed they appointed their co- 
tator, Alexander Stevenson, their fiictor and conmussioner : * We, 
^ Mrs Marion Strong, otherwise Stewart, and Thomas Strong, mer- 
^ diant in Leith, two of the tutors-dative of James Stewart, now of 

< Brugh^ only son and heir of entail of the deceased James Stewart, 

* Esq. last of Brugh, conform to gift of tutory-dative in favour of 

< us, and Alexander Stevenson, writer in Edinburgh, dated the 2d 

* day of June 1814 years, considering that the said Alexander Ste- 
^ venson has hitherto acted as our commissioner, factor and cashier, 
^ in the management of the said pupil's affidrs, and that it is neces- 
^ sary for us to confirm his appointment by a regular commission, 

< with the usual powers ; and having full confidence in the integrity 

< and ability of the said Alexander Stevenson for that purpose, 

* therefore we do, by these presents, nominate, constitute and ap- 

< point the said Alexander Stevenson to be our commissioner, fac^ 

< tor, cashier and agent, for the purposes after mentioned, giving, 

* granting and committing to him full power, warrant and com- 

< mission for us, and in our names, to manage, transact and con- 
' duct all the affairs and concerns of the said James Stewart, our 

< pupil, as fully, freely and completely, in all respects, as any other 

VOL, VII. y 



81S 



DECISIONS OF THE 



No. 86. 



6Uit.imt 






owftinwaioner» fiauctor, cashier or ageaii^ im*d wkL the 
pie powers^ could' do in the lib mmu ; and/ particularly, with- 
out prejuifiee to diis general comaiiiflaion, with full power to our 
said cOmmffistoner to Buperintend the management of tho Irivfe 
affidrs and concerns of the ealntea ia Oriowf aad Sbelhnd be- 
iMging to tbe Mi fcrnsff Stewttty and of any other lands or heri- 
ftyr which he may acquire or succeed to in time coming; as 
also, with power to sell and dispose of the whole kelp, whidi shall 
be produced and mnau&ctured upon the shores of the entailed 
estato belonging to the said James Stewart, to sudi pemon or 
pemons as he shall think fit, and at such prices as he can obtain 
for the same, and receive die prices thereof ; to insure the said 
kelp, according to such advices as he shall receive from the fiictor 
in Orkney, and to settle all disputes and diflPerences which may 
arise with the buyers, underwriters, or others, either by arbitfatian 
or otherwise, as he shall see more fit ; as also, for us, and in our 
name, as totors foresaid, to demand, uplift, receive, and, if neces- 
sary, pursue for all debts and sums of money, (exclusive of prin- 
cipal sums lent out on bond,) due, or to become due to the said 
James Stewart now of Brugh, or to us, as his tutors,' &c« Tbe 
deed likewise authorised the &ctor to make the necessary disburse- 
ments for supporting and educating the pupil, and managing his 
estate and affidrs, and to settle accounts with the sub-iactors. But 
it is ^ declared, that the said Alexander Stevenson shall, by accept- 

* ance hereof, be bound and obliged to hold just count, reckoning and 

* payment, to us, or our quorum, for his whole intromissions, in virtue 
^ hereof, after deduction always of his necessary debursements, charges 

< and expenses, in the execution hereof, with a reasonable gratification 

* for his own trouble tlierein ; declaring the said Alexander Steven- 

* son's acceptance hereof shall not hurt or prejudge his right as one 

* of the tutors of the said James Stewart.' 

And the defender, Mr Scot, became cautioner for Mr Steven- 
son, by a bond, in which the parties bind themselves, conjunctly and 
severally, ^ that I, the said Alexander Stevenson, shall hold just 

< count and reckoning with the said tutors, or any person appoint- 

< ed by them, not only for my whole actings, management and in- 
^ tromissions whatsoever already had by me with the estate, funds 

< and effects of the said James Stewart, as one of, and as acting for the 

< other tutors-dative, since the date of the said gift of tutory-dative, 

< but also for my whole actings, management and intromissions 
^ whatever, to be had by me in virtue of the before-mentioned 

< commission and fectory, or as their factor, cashier or agent in 
^< any manner of way ; and that I shall submit to the said tut<HRS, 
'< for their examination and satisfaction, my accounts, yearly, or so 



No. 86. COURT OF SESSION. 819 

< ofken 88 I shall be required by them to do io ; and that I^ the ^ ^v • ISSSk 

< said Alexander Stevenson, shall make payment to the said tutors *^^V^ 

* of all sums of money which I shall uplift and receive in virtue Bt^d^&i^ ^ 

< of the said factory and commission, or the balance that may remain 

< due thereon at the time.' 

In 1620 Mr Strong, one of the tutors named, died ; and, in 18i2S, 
Mr Baikie first presented a petition to the Court of Exchequeri 
praying to be relieved of the cautionary obligation, and aiter* 
wards brought an action of exoneration before the Court of Session; 
eonduding to have it found, that his liability for the intromissions 
«f the tutors had ceased at the death of the said Thomas Strong, 
by which event it was contended the gift of tutory felL Being met 
by the defence of lis alibi pendens, Mr Baikie applied to the Ba-^ 
rons for leave to withdraw his application to them, which was ac* 
cordingly granted. 

Defences on the merits were lodged for Mrs Stewart and Alex- 
ander Stevenson, which the Lord Ordinary (Cringletie) repelled, 
<aO May 1823-4), and found that the tutory had fallen by the 
death o( the said Thomas Strong; and thereafter (7 July) decree 
of exoneration was pronounced in favour of Mr Baikie, there being 
at that date a balance in favour of Mr Stevenson, as JEtctor. 

In 1826, the pursuer, who had attained the age of puberty, 
brought, with the consent of the curators appointed by himself, the 
present action against Mr Baikie, concluding for reduction of the 
decree of exoneration in his favour, on the ground that, quoad the 
present pursuer, then in pupilarity, it was a decree in absence, and 
that it proceeded upon the erroneous supposition that the gift of 
tu4x>ry had fallen by the death of Mr Strong in 1820. The action 
also concluded for a count and reckoning of aU tlie intromissions 
and actings of the tutors until the termination of the pursuer's pu- 
pilarity, — Mr Stevenson, one of the tutors, and the &ctor for the 
otiierB, having, before this time, become insolvent, with a large ba^ 
lance of the pursuer's funds unaccounted for. 

Another action was also brought by the pursuer against the de« 
fender Mr Scot, as cautioner for Mr Stevenson's intromis»ons as 
fiictor. 

Against the former action various defences were stated by Mr 
Baikie, and, after a variety of procedure, and full pleadings, and, 
having taken the opinion of the other Judges, the Court pronouns 
ced judgment, (vide JF'ac. Rep. 28 Jan. 1829, Stewart, &c. v. Baikie, 
ficc.) whereby they ^ find, in terms of the opinion of the majority, 

< t^t the tutory in question did not fall by the death of Mr 

< Strong, and decern in the reduction accordingly, and appoint par- ' 

< ties to debate on the consequences to follow from this judgment;' 

y2 



920 



DECISIONS OF THE 



No. 86. 



6 Mar. 1832. and they afterwards (29 Jan.) remitted the case to the Lord Ordi- 
^^«^V^^ nary, * to hear parties on the consequences to follow upon the judg- 

B^bt&c^ ^ * ™®°* pronounced by the Court on the 24th current, and to dispose 
' of the whole remaining conclusions of the libel,' &c. 

In the action at the instance of the pursuer against Mr Scot, 
the Lord Ordinary (Eldin) found, 29 June 1827, the defender 
^ liable for the balance of Alexander Stevenson under the factory 
^ in question,' &c« But, on advbing a reclaiming note against that 
interlocutor, the Court, of the same date with the above judgment, 
29 Jan. 1829, remitted the cause to Lord Newton, to whom the 
former case had been remitted, * ob contingentiam, with power to 

* hear parties as to the consequences which ought to follow from 

* the judgment pronounced by the Court in the case of Stewart v, 
^ Baikie, and to proceed farther as to his Lordship should seem 

* proper/ 

Both cases came before Lord Fullerton, Ordinary, as having suc- 
ceeded Lord Newton on the Bills, and his Lordship, after hearing 
counsel, ordered cases, and issued the following note in the action 
against Mr Scot : ^ After the full discussion which the case has re- 
ceived, it is with g^reat reluctance that the Lord Ordinary issues 
the above order. But, upon a full consideration of the whole dr- 
cumistauces, he foresees the possibility of great inconvenience, and 
even injustice, in separating entirely the present case from that 
depending between the same pursuers and Mr Baikie, the cau-* 
tioner for the tutors, which has not been argued before him, and 
which must now, in all probability, fall to be decided by another 
Judge. 

< It is due to the parties, however, to state the view entertained 
by him on the points in dispute. If the factory had been gprant- 
ed to a third party by two tutors in their tutorial character, with 
the implied sanction of the remaining tutor, and had thus been a 
proper tutorial act, the judgment of the Court, holding the tutory 
not to have fallen on the death of Mr Strong, would have been 
conclusive against the cautioner for such &ctor. But here there is 
the peculiarity, that the factory or commission is granted by two in* 
dividual tutors in fevour of a third, Mr Stevenson, and Mr Soot is 
cautioner for Mr Stevenson's intromissions, * in virtue of the be- 

'< fore-mentioned commission and factory, or as their &ctor, cashier 
f* or agent, in any manner of way.' This specialty gives rise to 
two questions : Firsts Whether the factory, not being a proper 
official act of the whole tutorial body, did not fall by the death of 
one of the individuals who had granted it ; and, secondly y What 
is the extent to which the cautioner is bound? 

< In regard to the first of these points, the Lord Ordinary, though 



No. 86. COURT OF SESSION. 821 

with Bome hesitation, indines to the opinion, that the commission 6 Mar. 1832. 
may be held, in consequence of the peculiar nature of the appoints v^^^^ 
ment of the tutors, as ascertained by the judgment of the Court, g^j^^fj^^l^' *'' 
to have been granted by the two tutors and the survivor of them, 
and therefore did not fall by the death of Mr Strong. The se- 
cond question is attended, perhaps, with still more difficulty. The 
cautioner is bound for Mr Stevenson's intromissions, in virtue of 
the commission and fectory, or as the factor, cashier or agent of 
the two tutors who granted the factory. But Mr Stevenson being 
also a tutor himself, and whose power in that character was ex- 
pressly saved in that commission and factory, had a right to intro- 
mit as tutor, which circumstances raise the question, whether any, 
or which of his intromissions are to be held as intromissions in 
virtue of the fectory, for which intromissions alone the cautioner 
was bound. This again seems to lead to an inquiry into the true 
character and effect of the commission or factory, whether it 
should be treated as a commission to a third party, whose whole 
intromissions must be imputed to it alone, or as a mere devolution 
on one tutor by the other two, of the whole powers previously 
shared by them all. Now, it appears to the Lord Ordinary, that 
this is a point in which Mr Bailde, the cautioner for the tutors, 
may have a material interest, and which does not admit of being 
separated altogether from this case ; as, according to the first view, 
Mr Baikie would, in all probability, have the benefit of Mr Scot's 
cautionary obligation, while, according to the second, that obliga- 
tion might possibly be construed as merely protecting the two in- 
dividual tutors who granted the commission, and as not available 
to Mr Baikie in regard to Mr Stevenson's intromissions, which 
intromissions might be held to be properly imputable, not to the 
factory or commission, but to his inherent powers as tutor, for 
the due exercise of which Mr Baikie was unquestionably bound. 
Accordingly, Mr Baikie's fourth plea in law seems to involve a 
question of this kind, and, besides, the remit of the Court in the 
present case is expressly granted ob contingentiam, meaning, as it 
is presumed, the contingency of the case with that in which the 
Court had pronounced judgment, being the case of Mr Baikie. 
^ In these circumstances, the Lord Ordinary has pronounced the 
above interlocutor, as most conducive to the interests of the whole 
parties concerned.' 
The general question in the action against Mr Baikie wa9, 
whether he, as cautioner for three tutors, in the circumstances 
above detailed, and under the conditions of the bond of caution, 
was relieved of his obligation by the death of one of the tutors du- 
ring the currency and existence of the tutory, the tutory itself ha- 
ving been found not to fall by th?it event ? 



322 DECISIONS OF THE No. 86. 

6 Mtr. 1832. Pleaded for the pureniers — Mrs Stewart, Mr Strong, and Mr Ste- 
^"^^^/^ venson were appointed by the Crown tutors and guardians of the 

B^e*&<t^ minor, Mr Stewart. They had the custody of his person, and the 
— — ^ management of his estate. They came in his place, and could not 

P\^^^ be called to account for their management until he should reach his 
fourteenth year complete. For such trust and confidence they found 
caution ; and Mr Baikie became bound, conjunctly and severally 
with them, for all intromissions had by them during the subsistence 
of the tutory, and to coimt, reckon and make pa3rment to the minor, 
when he should arrive at the age prescribed by law. Mr Baikie, 
having executed a bond to this effect, was evidently responsible du- 
ring the whole period of the tutory ; and the minor, during pupil- 
arity, was excluded from calling the tutors, or their cautioner, to 
account While, therefore, any one of the tutors survived, while 
the tutory existed, Mr Baikie continued bound. The duration of 
the tutory, as to this matter, can only be considered as a punctum 
temporis. It will not do for Mr Baikie to assimilate his case with 
that of a cautionary obligation amongst adults in mercantile affairs ; 
he must view it as that of a cautioner in a lease, who is bound du- 
ring the whole period of its subsistence. The Crown had commit- 
ted the custody and protection of Mr Stewart's person and property 
to his tutors, during the term of pupilarity, under an express obli- 
'gation granted by Mr Baikie, that, at the end of this term, he 
should account to the minor for their whole intromissions. He was 
not taken bound to account earlier ; and he could not be relieved of 
his obligation, unless by consent of the Crown, or the death of the 
parties. The pupil could give no consent, neither could his tutors. 
They might as well have discharged a debt due by themselves, or 
any of them, to the pupil's estate, without payment, as discharge 
an obligation which might prove eventually of benefit to their pupil. 
The Crown had exacted the security, and none but the Crown 
could have altered it. After Mr Strong's death, Mr Baikie made 
the attempt; but the Crown refused to sanction any alteration. In 
these circumstances, of what has Mr Baikie to complain? He is an 
advocate, and knew the law. He knew also that Mr Strong might 
die before the expiry of the trust, and, by the law of Scotland, that 
the tutory would subsist notwithstanding. If then Mr Baikie grant- 
ed an obligation broader than he intended, he has himself alone 
to blame. He cannot blame the pupil, who was no party to the 
transaction, nor the propriety of his taking the benefit of a security 
'which the Crown thought it proper to exact. There cannot be a 
doubt, therefore, that Mr Baikie, in terms of his bond, is liable for 
the tutors' intromissions, and that Mr Stewart, who is now past 
fourteen, is, with the concurrence of his curator, entitled to call him 
to account. 



No. 86. COURT OF SESSION. 323 

/VMufed for Mr Baikie— 6 Mar. 1832. 

1. The decree in foro, obtained before Lord Cringletie in the ^"^^^v^^ 
action cf exoneration at the instance of the present defender, forms j^^^^g^^ ^' 
a res judicata in the present case; for it having been found, by the — 7-7^ 
infeerloctttor of the 29 January 1830, that the tutory itself did not ^ea^^'^ "" 
fell by the death of Strong, and that the sundyors remained the 

lawful tutors of the pupil, it can no longer be assumed, that he 
(the pupil) was then a minor indefensus; and the exception of res 
judicata is as effectual against a minor defensus, as against any other 
person, unless he can establish pleas competent and omitted ; Purves 
V. Lady Kincardine, 6 Feb. 1696, Brown's Supp. 4. 307 ; Cuby v. 
Cubys, 7 Nov. 1699, FaiaU. 3f. 9017 ; Oakley t7. Telfer, 23 Jan. 
1705, Fount. M. 9019 ; Badenoch v. Kehnans, 10 Feb. 1769, Hailes, 
S76. 

2. Although it has now been decided that the office of tutory, 
upon the death of one of the tutors, accresced entirely to the two 
survivors, it does not follow that the cautionary obligation, which the 
defender undertook for the three original tutors, was also a cautionary 
engagement for the two survivors, after the tutory underwent this 
change. That must depend upon tiie terms of the bond of caution ; 
and by these, the acts of management, omissions, &c., for which 
the defender became responsible, were those ^ had by us, the said 
< tutors, under and by virtue of the said gift,' or, in other words, by 
the three original tutors, Mrs Stewart, Mr Strong, and Mr Steven- 
son. Al(hough the office itself might be so constituted, as to be 
eapable of undergoing changes, by which it might vest in any one 
or more of these individuals, the defender's obligation was expressly 
limited to the intromissions, &c. of the body, consbting of the three 
individual, for whom he became responsible ; and it is a rule in all 
questions arising under cautionary obligations, that they are to be 
strictiy interpreted, and are not to be extended beyond the strict 
meaning of the words in which they are expressed ; Ersk, iii. 3. 64. 

3. Even supposing that the defender's liability did not fidl ipso 
jure by the death of Mr Strong, it was competent for him to with* 
draw from any future responsibility, and this was the object of the 
action of exoneration at his instance. His obligation was prospect 
tive, and for the faithful discharge of the duties of an office ; and it 
is in the power of such a cautioner to withdraw his cautionry in 
futnrum, upon giving due notice of his resolution to do so, and 
leaving it to his principals, if called upon to do so, to find new cau- 
tion. Belly i. 280 ; Welsh v. Welsh, 14 Feb. 1778, M. 16,373. 

4. But supposing the obligation remained in operation, not 
merely after the death of Strong, but after the above judicial pro- 
ceedings, it by no means followed that, by having become cautioner 
for the tutors themselves, the defender was also cautioner for the 



324 



DECISIONS OF THE 



No. 86. 



Mr Baikle^s 
Fleas. 



6 M«r. 1838. fitctor Mr Stevenson, who was employed to mam^e the aflhirs of 
^«^V^^ ^® pupil) and for the balance due by whom to the pursuer the pre- 

^ki^^^' ^' ^^^ demand is made. It is quite clear, that if the appointment as 
factor has been conferred upon a stranger, the defender would not 
have incurred any responsibility for his intromissions and manage- 
ment But it was quite competent in law to appoint Mr Stevenson 
factor for the tutors, although he was one of their number — ^Lady 
Montgomery t^. Wauchope, 4 June 1822; and the purpose of the ap- 
pointment was to confer the fiftctory upon him, in the same manner as 
if he had been a stranger. It was qua &ctor that he acted ; and it 
was the defender Mr Scot, and not Mr Baikie, who became liable 
for his management as such. The two cautionary obligations were 
applicable to different classes of transactions, Mr Baikie's being so 
framed as to be incapable of being extended to transactions which 
might occur posterior to the failure of any one of these original 
tutors, either by death or otherwise, while that of Mr Scot was 
framed so as to extend to the whole actings of Mr Stevenson, either 
during the subsistence of the factory, or even after its legal termina- 
tion, as long as he should be allowed to act as factor or cashier ; and 
such a right of caution, acquired by guardians in the management 
of their ward's affairs, is acquired for behoof of their ward ; Corsbie 
17. Finlay, 20 Nov. 1627, Brown's Supp. i. 238; Ruthvensv. Wal- 
lace, 13 July 1688, M. 16,330. 



Pursuer s 
Flras. 



Pleaded for the pursuer (in the action against Mr Scot) — 

1. The defender, Alexander Scot, by his bond of caution speci* 
fied in the libel, is bound, conjunctly and severally, along with the 
other defender, Alexander Stevenson, to account to the principal 
pursuer and his curators for the whole of the said Alexander Steven- 
son's actings, management and intromissions with the estate, funds 
and effects of the pursuer, either in virtue of the gift of tutory, and 
as one of and acting for the other tutors-dative since the date of 
the gift, or in virtue of a commission and factory from the oUier 
tutors-dative ; or as their factor, cashier or agent in any manner of 
way, since the date of the gift. 

2. The commission and factory granted by Mr Stewart and Mr 
Thomas Strong, two of the tutors-dative, to Mr Stevenson, one of 
their own number, did not expire by the death of Mr Strong in 
August 1820. That commission and factory declares that it shall 
subsist till recalled ; and it never was recalled, but, on the contrary, 
was acted upon by Mr Stevenson down to the period of the pupil- 
arity and election of curators. 

3. The gift of tutory granted in favour of Mr Stewart, Mr Tho- 
mas Strong, and the defender Mr Stevenson, did not fall by the 
death of Mr Strong in August 1820. A gift of tutory to three 



No. 86; COURT OF SESSION. 325 

persons subsists in full force although one of them should die ; and 6 Mar. 1832. 
the office may be executed by the survivors, where the appointment ^^^y^*^ 
is not to the tutors named jointly, and where no quorum is express- ^*TJ^^^' ^' 
ed in the gift ; Stair^ i. 6. 13. and 14; and i. 17. 4. and 12 ; Ersh. 
i. 7. 9. 30. and 34, and authorities there referred to. 

Pleaded for the defender — 

1. A gift of tutory to three individuals, being granted to the ]>efeiider*a 
whole of the persons named in the gift, expires by the death of any Pl«>** 
one of them, unless a quorum is mentioned, or where there is a 

clause of survivorship. This is qiute understood in the Court of 
Exchequer, where a new gift of tutory is always applied for when 
any one of the persons named becomes incapable, by death or other- 
wise, of dischai^ing the office. The reverse of this no doubt has 
been decided in the action against Mr Baikie ; but except in so far 
as that decision may be authority in this case, it is still open to 
plead it; at least it can form no res judicata against the present de- 
fender. 

2. By the established principles of the law of mandate, a joint 
mandate by two individuals expires by the death of one of them ; 
* morte mandantis perit mandatum,' and therefore, at all events, the 
fectory in JEtvour of Stevenson fell by the death of Strong ; Diffest^ 
17. 1. 238; Stair, L 10. 6; Bank. L 8. 17; JErsk. iii. 3. 40. 

3. Cautionary obligations are strictly interpreted, and therefore 
no claim can lie upon the defender, as cautioner of Mr Stevenson, 
beyond the precise terms of the bond of caution, which limits his 
obligation, as cautioner for Mr Stevenson's intromissions as one of 
the tutors, to the date of the bond, and for his intromissions as 
&ctor for the other tutors to the duration of the factory, which 
came to an end by the death of Mr Strong, at which time a ba- 
lance of upwards of L.200 was due to Mr Stevenson as fisictor. 
It is also fixed law both here and in England, that a cautionary 
obligation, addressed to two or more parties in fevour of a third, 
is not transmissible to other parties, but is strictly personal to 
those to whom it is addressed ; that it &lls upon any of those exe- 
cutors ceasing, by death or otherwise, to have an interest in the 
matter, and, what is still stronger, that it is held to expire by 
the assumption of other persons as creditors, although that circum- 
stance should rather enhance than diminish the security of the can* 
tioner ; and in the present case, the defender's letter of guarantee in 
favour of Mr Stevenson being addressed to Mr Stewart and to 
Mr Strong, necessarily fell by the death of the latter ; Philip v. 
Melville, 21 Feb. 1809 ; Elton Hammond v. Michael Nelson and 
others, 24 June 1812; Myers and others v. Edge, Fell an GW- 



326 



DECISIONS OF THE 



No. 86. 



Stevart, &c. ». 
Baikie^ &c. 



6 Ufar. 1838. rantee ; Daiice and others o. Oirdler and others, JPdZ, 1!27 ; Strange 
and others t). Lee, FM^ lt25. 

The Lord Ordinary, Monoreiff, (before whom tihe canse came,) 
after considering the cases in the action against Mr Soot, ordained 
the pursuer to enrol the separate action at his instance against Mr 
Baikie ; and thereafter his Lordship made avisandumwith the whole 
cause to the Court, and issued the following note : < The Lord 

< Ordinary regrets that, in this very diflBcnlt cause, he has not had 

< the benefit of a debate. It had been fully lieaid, and the cases 

< had been ordered by Lord FuUerton, before it devolved on the 
' present Lord Ordinary ; and after he had considered the cases, 

< he found it necessary to make some orders in the relative action 

< of Stewart v. Baikie, in order that both causes might be disposed 

< of at the same time, according to the intention of tiie Court. 
' Both causes being now fully prepared, he thinks it expedient to 

* report them. They have not been conjoined, the interests and 

< pleas in each being, in a great m^ure, distinct, though so ma- 

* terially connected, that they ought to be decided together. 

< The points in the case of Baikie are these : 

< 1. Is the judgment of the Court, reducing tiie decree of exo- 
neration to the effect of finding that the tutory did not &11 by Mr 
Strong's death, conclusive against its operation as a release to Mr 
Baikie ? 

< 2. K it is not, is that decree res judicata as to the termination 
of Mr Baikie's obligation as cautioner, either at the death of Mr 
Strong, or at the date of the summons? The Lo?d Ordinary 
thinks that it is not res judicata. 1st, Because tiie judgment may 
have depended on the point on which the Court has already re- 
duced it ; and, 2d, Because, though, by that decision, it is settied 
tiiat the pupil was not without tutors, those tutors were the very 
persons for whom Mr Baikie was cautioner ; and therefore a tu- 
tor ad litem was indispensable. 

< 3. Did Mr Baikie's obligation fitU by tiie deatii of Mr Strong ? 
The Lord Ordinary thinks that tiiere is much gpreater difficulty 
in this point than the pursuer is willing to allow. It is finally 
settied that the tutory did not fkll. But the very peculiar terms 
of the bond of caution do certainly leave a question of importance 
open, whether the cautioner is lidble for the actings of two of the 
tutors, after the death of one has removed his superintendence, 
and put an end to his obligation of relief. There is great diffi- 
culty in holding, that the tutory was so framed as to subsist, and 
the bond of caution so expressed as to fall. It could not be so 
intended : But whether it was that the bond was framed on a 
different view of the effect of the tutory, or from what other 



No. 86. COURT OF SESSION. 827 

* cause, the terms of the bond are such as to render it very diffi- e Mar. 1832. 

< colt, nnder the common rules as to caationary obligations, to ob- v^^/^ 

< yiate Mr Baikie's plea. The Lord Ordinary does not mean to Snwwvt, &c t>. 

* say, that he has formed a decided opinion that it is good ; but at ^**^*' ^^' 

< present the only answer made by Mr Stewart is not satisfactory 

* to him. 

* 4. Supposing that the cautioner's obligation did not &I1, is 

< Mr Baikie liable for the intromissions of Mr Steyenson as &ctor ? 

< The Lord Ordinary thinks that he is ; because, though Mr Ste- 

< venson received the money as &ctor, yet, being tutor also, as soon 

* as he had it in his hands, he was bound, both as tutor and &ctor, 

< to account for it, and pay it to the minor. 

< If it should be found that Mr Baikie is released, the action 

< against Mr Scot will be of great importance to Mr Stewart. 

< But if Mr Baikie should be found still liable, the interest will lie 

< chiefly between him and Mr Scot. The Lord Ordinary there- 

< fore allowed Mr Baikie to see Mr Scot's paper, and to put in 

< an ai^ument in that view. 

< The points in Stewart v. Scot are these : 

^ 1. Whether the pursuer has a title to found upon Mr Stewart's 
bond of caution ? The Lord Ordinary thinks that there is nothing 
in the objection that this was not stated as preliminary, because 
it is equally a defence on the merits. But he is of opinion that 
ihe plea is not well founded. He apprehends, that where tutors or 
trustees have power to grant factories, and they do grant a faC"' 
tory, and take a bond of caution for the factor's intromissions, the 
bond is available to the minor or constituent, and that it can make 
no difference that the tutor had previously found caution. He 
has no idea that Mr Scot's bond was only taken as a protection to 
Mrs Stewart and Mr Strong. The question, to what it binds Mr 
Soot, is very different 

< 2. Whether the factory fell by Mr Strong's death ? 

< This is a question of difficulty, and not absolutely resolved 
by the judgment finding the tutory to subsist ; for the factory 
being to one of the tutors, it cannot be held that it was so a tu- 
torial act that it must have subsisted as long as the tutory. If 
Mrs Stewart had died, it could not have stood, — the factor being 
himself sole tutor. The question therefore is, whether, as a man* 
date, (clearly different from contracts of lease, loan, &a), it fell 
by the death of one of the g^ranters necessary to its constitution, 
or, as a tutorial act, subsisted as long as the nature of the tu- 
tory admitted of it The point is far from being clear. But the 
Lord Ordinary is inclined to think that it did subsbt 

« 3. Whether, if the factory fell, Mr Scot is liable for Mr Ste« 



928 



DECISIONS OF THE 



No. 86. 



6 Mar. 1832. 



Stewart, &c. v. 
Baikiey &c. 



venson's intromissions, either as tutor or agent. The question, 
whether he would be liable on the ground of Mr Stevenson ha- 
ving acted as agent, is not precisely argued by the defender, and 
is not clear. But the Lord Ordinary is of opinion, that there 
are no words in the bond which could make him liable for intro- 
missions as tutor ; and is inclined to think, that, notwithstanding' 
the words as to the character of agent, the true spirit and purpose 
of the bond made it dependent on the subsistence of the factory. 

< 4. Supposing that the factory did not fedl, did Mr Scot's ob* 
ligation as cautioner fall by Mr Strong's death ? 

* This seems to be the most important question in the cause, 
and it is certainly attended with difficulty. There is nothing 
in the bond to settle it. Mr Scot, though bound conjunctly and 
severally with Mr Stevenson, is so bound expressly as cautioner, 
and it is no solution of the point to say, that, if Stevenson was 
liable, Scot is liable ; Stevenson must have been liable in every 
event But the question, whether the cautioner's obligations 
subsisted to cover intromissions had after die death of one of those 
to whom it was given, must depend on other principles* The 
cases quoted by the defender are evidently of importance, and 
some of them come very near to the point. And again, it would 
be difficult or impossible to say that the cautioner would have 
continued bound if Stevenson had become the sole tutor. On the 
other side, if the tutory and the factory both subsisted, and if £he 
bond of caution be held to have been taken for the pupil's be- 
nefit, and to be available to Mr Baikie, it is not easy to hold the 
tutorial act of taking it as having become ineffectual de future by 
the death of one of the tutors. The Lord Ordinary has not a 
very decided opinion on this question. He has not been able to 
get over the general rules applicable to cautioners, as recognised 
both in the Scotch and in the English cases. But he sees much 
difficulty in applying them. 

< 5. Whether, if the factory subsisted, all the intromissions of Mr 
Stevenson must be considered as falling under it ? 

' If special facts to the contrary were condescended on, this might 
raise such a difficulty as that suggested by Lord FuUerton. But 
the Lord Ordinary does not think, that it could be maintained as 
matter of presumption, that money uplifted by the factor was not 
uplifted in that character, but as one of two tutors.' 



opinion of 
Court. 



At the advising Lard Balgray said * — I have been a good deal 



* Before the Judges proceeded to deliver their opinions upon the merits, it was pro- 
posed by the counsel for the defender Mr Scot, (in the event of the cause being taken 
to appeal, and with the view of shewing the practice,) to give in a minute, stating the 



No. 86. COURT OF SESSION. 829 

perplexed in this case by the varioufi points which have been agi- 6 Mar. 1832; 
tated, both in the pleadings for the parties, and in the notes of the Vi^py^*^ 
Lords Ordinary ; and it was some time before I could discover the ?^T?^'^*^ ^' 

principles of law on which this case should be decided. One difficulty ! — * 

arose from the former judgment (29 January 1829) reducing the pre^ Opinion of 
vious decree of exoneration in favour of Mr Baikie, and finding that 
the tutory had not fiedlen by the death of Mr Strong ; so that the 

rcsull of an investigation he had xnado into aU the initances, in which similar gifts of 
tutofy to more than one individual had been granted by the Court of Exchequer, from 
the year 1806 down to 18S8. In the relative case with Mr Baikie» a report as to the 
practice had been made by the King's Remembrancer ; but as Mr Scot was no party to 
tbat action, it was maintained that the judgment could form no res judicata against bim« 

It was of^iMlac^— That as the record in the present case contained no such averment 
as that DOW made with r^ard to the practice, it was not now competent to produce evi- 
dence in support of it ; and, besides, an objection made by Mr Scot (23 January 1829, 
vide Rtport, p. 397-8,) to the report of the King's Remembrancer, as incomplete, had 
already been overruled. 

The Court held that the proposed minute could not competently be received. 

Loird GUUeB was clearly of opinion, that if any attention was to be paid to the form 
of process laid down by the judicature act, the minute proposed could not now be re- 
ceived into process. The object of the regulations there prescribed was, that the case 
Bobmittad to the appellate jurisdiction should be the same as that upon which the de* 
ciaion of the Court below had ^proceeded ; but the proposal here was to lay evidence 
before the House of Xiords which had not been produced before the Court of Session ; 
and the consequence might be, tbat although the House of liords might concur en- 
tirely on the grounds on which the judgment here proceeded, they might be of a dif- 
fierent opinion on the new evidence, on which the Court of Session had no opportunity 
of judging. If the record had not been closed, the case would have been different ; 
but the record was now closed, and it appeared to his Lordship quite impossible to 
allow a proof of averments not contained in it, when the House of Lords could only 
competently judge of the case as it appeared on the record. The only remedy was, 
to open up the record, and prepare a new one, and this could only be done by pay* 
ment of the whole previous expenses. 

In this view the Lord Pregidait and Lord Bal^ajf concunred.~The Lord Freadent 
had some doubts also, whether the former judgment was not res judicata against Mr 
Soot, for the action against him was remitted to the Lord Ordinary ob oontingentiam^ 
with power to hear parties on the consequences which ought to ibUow from the judg- 
ment pronounced by the Court in the action against Mr Baikie ; but no consequen- 
ces could follow upon that judgment affecting Mr Scot, unless it was to be held as a 
judgment against him. 

Lord Craigie wished for further time, and an inquiry into the pmctice, with regar4 
to a point which was of some importancet Although the Court might think them* 
selves bound to follow the judgment in the case of Baikie as a precedent in the pre» 
sent action, it could not be considered as a res judicata, the two actions not having been 
conjoined. He was also of opinion, that in r^ard to the judgment now to be pro- 
nounced, the proposed minute could not, without opening the record, have any effect ; 
but even after decree, he understood that such a statement might be given in, with a 
view to proceedings which might afterwards take place, and as affording competent, and 
indeed the best evidence that such averments had been made. Upon examination into 
the records of the Court, he was confident that many examples of the same kind would 
be found, and he never saw it opposed, it being competent to the other party, if he 
thought fit, to giv« in an answer. 



330 DECISIONS OF THE No. 86. 

6 Mar. 1839. defender Mr Baikie now fitands in the same ntnatkm as if Strong 



had lived, until the pursuer Mr Stewart had reached the age of 
Baikie/&c' ' pupilarity ; and the question had arisen, (as it now occurs,) what 

r: was the nature and extent of the obligation undertaken by him un« 

CouTt. der his bond of cautionry ? It is no doubt true that such an obliga* 

tion is to be strictly interpreted, but, like other contracts, it muM 
be fairly and reasonably interpreted ; and in this view it is necessary 
to look to the nature of the obligation, and to construe it according 
t^ the true objects and principles which were in view of the par- 
ties at tiM time whan it was undertaken. Now, it is well knowii 
that a gift of tvlodry flowii^ from the Crown is held as a munus 
publicum, and that the first step b the finding of caution before the 
grant can be made, or wttctant given to meddle with the estate of 
the minor. The object of &e caution required is, to {protect the 
goods and effects of the pupil ; and it is a contract between him and 
the cautioner, whereby the latter engages;^ that the tutors appointed 
shall manage fidthfully the a&irs of the pupitt ^^^ ^ guilty nei- 
ther of acts of omission nor conunission to his pv^udic^ so that he 
becomes a superintendent over their conduct, and bk truth no hard- 
ship is imposed upon him. For suppose, in the present ctae, that 
Mr Baikie had relied on Mr Strong, it was competent for Mm, on 
the death of this gentleman, to have gone to the Court of Ez<dte- 
quer, and have withdrawn Ids name as cautioner, which, after payw 
ment of any balance that might be due at the time, he was quite 
entitled to do, and so be relieved of all future liability. I have 
known this done in many instances; and the Court of Exchequer 
themselves have required additional security, where a cautioner has 
fidlen into doubtful circumstances. But in anodier view, the plea 
of the defender Mr Baikie was inconsistent ; for, supposing that 
the gift of tutory, and the relative obligations of Mr Baikie^ had 
fallen by the death of Mr Strong in 1820, it was his duty at the 
time to have represented this to the proper court, and to have in- 
sisted upon the appointment of new tutors ; but instead of Ais, he 
allowed the management to go on without objection, and in hands 
in which the whole estate of the pupil might be lost In these dt^ 
cumstances I have no doubt that Mr Baikie is liable, under his 
bond of caution, to account for the conduct and management of 
the tutors, and I see no evidence that their actings did not &11 un- 
der the tutory. 

With regard to Mr Scot, I fear that the same rules of law must 
apply. Where there are many tutors, it is impossible that all can 
concur in every act ; and in the case of a quorum, the acting of 
such is die acting of the whole. The appointment of a &ctOT ako^ 
on the part of the tutors, for the management of the estate^ is a 



No. 86. COURT OF SfiBSION. 331 

oaHM»|ifa«eiriiii^;.aadiatliftpKegentcate, Ic^ 6 Mar. 1&% 

men of Stevengon aa audi, and witli the nmai bond of cautioD» a ^^m\^ ^ 
fiiir and proper exercise of the act of tutory, and the team of th^ mS^&^ ^* 
hood are ■» braad^aBd esteaaive, as to leave no doubt of the liabi- ■ 

Ht7 of the cautioner Mr Scot ^^J^^ ^^ 

Lord Craigie. — I am of opinion, on the gronnds I have just ex- 
pressed, (note supra,) that Uie judgment in the case of Mr Baikie 
cannot be held as res judicata in the present question ; and upon 
the mmts, my (pinion remains the same as when the case was for- 
merly before the Court If, however, in consequence of the judg^ 
ment against Mr Baikie, thait gentleman continued cautioner for 
the tutors subsequent to the deaA of Mr Strong, it s^ems to foK- 
low, that, when settling accounts as oautioiier, he is entitled to an 
assignment of the bond of caution, obtained from the other defender 
Mr Soot, so as to recover whatever sums he may be compelled to 

pay- 

Lard Gillies. — I agree in the opinion delivered by Lord Balgray. 
It is true, .no doubt, that cautionary obligations are strictissimi 
juris, but we are bound to interpret them fidrly and reasonably ; 
whereas, if we were to listen to the interpretations attempted by 
the defenders, it would render such obligations altogether nugatory 
and useless. In the present case, the terms of the bonds are suffi- 
ciently broad to cover all that is demanded by the pursuer. 

The Lord President. — I am also of the same opinion, and I think 
we are plaeing a sufficiently strict interpretation on the obligation 
before us; for, holding that the tutory did not &31 by the death of 
Mr Strong, Mr Baikie continued bound as long as any of them 
remained. He might, no doubt, upon that event, or at any other 
period, have withdrawn from his obligation, by taking the necessary 
steps ; but he did not do so, and he therefore continued bound as 
cautioner. The case of Mr Scot is even stronger ; for he concurred 
in the appointment of Mr Stevenson, and bound himself in the 
broadest terms for ail his actings, so that he is liable in relief to Mr 
Baikie. With regard to Stevenson himself, his acceptance of the 
appointment of fisictor was a clear concurrence in this act of tutory. 

The Court pronounced the following interlocutors : ' The Lords judgment. 

< having advi^ this case, with the case for James Baikie, defender, 

< and heard parties by their counsel, find the defenders liable, as 

< cautionefs for the tutors*-dative of the pursuer, far the whole intro- 

< misuons of the said tutors, and of their factor Alexander Steven- 

< son ; but jBnd the said defender James Baikie (in so fer as he may 

< be made liable for the intromissions of the said Alexander Steven- 

< son, as &ctor named by the said tutors,) entitled to relief against 
* Alexander Scot, who became bound as cautioner for the said 



332 



DECISIONS OF THE 



No. 86. 



6 Mar. 1832. 



Stewart, &c p. 
Baikie, &c. 



Judgment. 



factoids intromisBions, and remit the cause to the Lord Ordinary, 
to proceed further in the cause as to him shall seem just : Find 
the pursuers entitled to expenses, and remit the account thereof, 
when lodged, to the Auditor of Court, to tax the same, and to 
report* 

^ The Lords having advised this case, with the case for Alexan- 
der Scot, and heard counsel, find the defender Alexander Scot 
liable as cautioner for Alexander Stevenson, iactor i^pointed by 
the tutors^dative of the pursuer, for all the acts and intromissions 
of the said Alexander Stevenson, as &ctor foresaid : Find him also 
bound to relieve James Baikie, the cautioner for the tutors-dative, 
o^ all responsibility foiling upon him on account of the said fectoi^s 
intromissions, and remit to the Lord Ordinary to proceed &rther 
in the cause as to him shall appear just : Find the pursuer en- 
tided to expenses, and remit tiie account thereof, when lo<%ed, 
to the Auditor of Court, to tax the same, and to report' 



liOrdB Ordinary J^dm, MUrttm and Mommiff* For the Puimer, IMm ofFoi. 

(Hopt^) J, J. Hatdgrmm. Job, M'Qfk^ W. S. Agent. For Mr Baikie* 

Skene, MorshaU. Phin ff Piteaim, W. S. Agents. For Mr Scot, JUdhar- 

furd, Sandford. Damd FUker, Agent. B. Clerk. 

c. 



FIRST DIVISION. 



No. LXXXVII. 



7 March 1832. 



GLASGOW'S TRUSTEES 

against 

THE HEIRS OF ENTAIL and THE HEIRS-AT-LAW. 



Trust. — Presumftion.^-Tailzie. — Expenses.— I. A forty hal- 
ving disponed to trustees the whok moveable and heritable property of 
which he should die possessed^ (with the exception of lands convey-- 
ed under former deeds ofentail^) with instructions^ after payment of 
his debtsy ^c. to apply the < produce or proceed/ of the same in pur- 
chasing lands near the entailed estate^ and to be entailed on the same 
series of heirsy and under the same limitations^ ^c, butno expresspower 
of sale being given^^foundy that such powery although not ezpres9^ 
edy was impliedy being held necessary to carry into execution thepur^ 
poses of (he trusty and that the trustees were entitled to grant valid 



No. 87. 



COURT OF SESSION. 



333 



ti&s t0 pureHmstrSf aaid a^pbf ihe price of swJi hrndt as they told J M«r. 1832. 
tn punkasing ctkersj and entailing them in terms of the trm^^deed^ V^y^^ 
Ih The expenses of the litigation ordered to be paid out of the trust" j>^^^ ^, 
fundgj and ike amaant to be regulated betioeen the trustees and the The Hein of 
heir^at'law, as in a question between agent and client. 



Entail and 
the Heir-at- 
Law, 



Br deed of entail, (10 Feb. 1816,) the late Mr Glasgow setdcd 
lis estates of Mon^eenaB and others, in the oounty of Ayr, faiU 
ing heirs of his body, on Robert Robertson, Esq. of Prendergaest, 
and his children by his wife, Mrs Anne Glasgow or Robertson, 
(the entailer's natural daughter,) and oertain other substitutes. 

Subsequently to the execution of this entail Mr Glasgow ac* 
quired other heritable property, also in the oounty of Ayr, of which 
he execttHed a supplementary deed of entail, (23 June 1821^) con- 
taining tlie same provisions, and in fitvour of the same heirs. Of 
the same date he also executed a general trust-disporition and set* 
tement of his whole heritable and moveable estate situated in 
Scotland. The trust-deed proceeds on the narrative of the two 
d^eds of entail, and of the truster's intention < to enlarge the said 
< estate by farther purchases ;' and he assigns and dispones to the 
trustees^ * AH and sundry lands and estate, heritable bpnds> adju- 
dications, and all other heritable subjects, of whatever kind or 
denomination, pertaining and belonging to me, or wbiA shall 
^ pertain and belong to me at the time of my decease, in Scotland, 
but excepting always therefrom the foresaid lands and estate of 
Montgreenan and others, contained in the foresaid deed of entail.' 
One of the purposes of the trust is declared to be, < that my said 
trustees shall, out of the produce of my said means and estate, pay 
all tiie just and lawfiil debts which shall be due and owing by me 
-at the day of my death,' &c. 
Another purpose is, ^ To the end and intent that my said trus- 
tees shall, as soon as they shall have it in their power, from the 
state of the tmst-fiinds, wd as they shall think proper, appropriate 
and apply such produce or proceeds of my real and personal estate 
hereby conveyed, to the purchasing of lands or other heritages 
in Scotland, lying contiguous, or as near as may be, to my said 
lands and estate of Montgreenan, in Scotland, as such purchases 
call be met with, and most conveniently and advantageously made ; 
and take the rights of the lands, and other subjects to be purchased 
by them, to and in fitvour of themselves, and the survivor of them, 
as trustees, for the ends, uses and purposes particularly before and 
after meationed.' * To the end. that my said trustees or trustee 
shall, immediately upon making the said purchases, and having 
their titles thereto completed, or as soon thereafter as can be, make 

VOL« vii. 2 



334 



DECISIONS OF THE 



No. 87. 



Glasgow's 
Truslees v. 
The Heirs of 
Entail and 
the Heir-at* 
Law. 



7 Mar. 1632. * and execute a deed of entail of the said lands and others so to be 

< purchased by them, settling and disponing the same to and in fa- 

< vour of the said Robert Robertson,' &c. The trust-deed, how* 
ever, contained no express power of sale of any part of the heritable 
property. 

Before the date of these different deeds, Mr Glasgow had acquired, 
and was in possession of, a villa, called Seafield, in the neighbour* 
hood of the town of Ayr, at a considerable distance from the lands of 
Montgreenan, for which he had paid L.4000, and which was bur- 
dened with a feu-duty. This property, however, was not contain- 
ed in either of the deeds of entail, neither was it specially convey- 
ed in the trust-deed. In 1824, a mutual contract was entered into 
between Mr Glasgow and an intended purchaser for the sale of 
the property ; but it was not completed, in consequence, as was al- 
leged, of the sudden illness and subsequent dei^^ of Mr Glasgow. 

After the death of Mr Glasgow, the trustees,, with the view of sell- 
ing and applying the price of Seafield to the general purposes of the 
trust, determined to bring it to sale ; but as the trust-deed contained no 
express power to sell any part of the heritable property, an action 
of declarator was brought by them, in which, after setting forth that 
the property of Seafield was not contained in either of the deeds 
of entail, nor specially conveyed by the trust-deed, although fiEdling 
under the words of the general disposition thereof, and that it appear- 
ed to have been the declared intention of the entailer to have disposed 
of the property on account of its distance from the entailed lands, 
in pursuance of which intention, a verbal contract of sale had been 
entered into, though not completed, it concluded, that the trustees 
should be found entitled ^ to sell and dispose of the same at public 

< roup, at such a reasonable price as can be obtained, and to grant 

< a valid and unexceptionable title to the purchaser ; and after com- 

< pleting the said sale, and receiving payment of the price, to ap- 
^ propriate and apply the same to the purchasing of lands or other 

< heritages in Scotland, lying contiguous, or as near as may be, to 

< the lands and estate of Montgreenan,' &c. ; and to < make and 

< execute a deed of entail of the said lands' in fetvour of the same 
series of heirs mentioned in the former deeds of entail, in terms of 
the trust-deed. 

In this action the trustees first called the heirs of entail only as 
defenders, who appeared, and gave in defences. The Lord Ordi- 
nary ordered cases for the Inner-House ; but when the cause came 
to be advised, their Lordships were of opinion that process ought 
to be sisted until the heir-at-law should also be called as a party ; 
in consequence of which a supplementary summons was raised ; 



No. 87. COURT OF SESSION. 335 

and after defences were given in by the heir-at-law, supplementary 7 Mar. 183^. 
cases were ordered by the Lord Ordinary^ V^iPs^^^ 

Glasgow's 
, , , Trustees v. 

The pursuers pleaded — L The present question, arising out of The Hein of 
the construction of certain mortis causa deeds of settlement, exc- ^g^*^?!**l 
cuted by the late Mr Glasgow, must be determined according to Law. 

what may &irly be presumed to have been the intention of the ' 7 

maker of the deeds ; and it is settled law, that where the intentions pieas. 
of a testator are distinctly evident from the deed which he has exe- 
cuted for the settlement of his affidrs, a court is bound to give ef- 
fect to these intentions ; and that the persons interested under the 
deed are entitled to demand that a fair and liberal interpretation 
be given to all its clauses, in conformity with their general object 
and tendency, in the explanation of any difficulty of a merely for- 
mal or technical nature ; Kamei Principles ofEquxty^ i. 1.8; Hill 
V. Bums, 14 Dec. 1824; Crichton v* Crichton's Trustees, 12 May 
1826 ; Drummond v. Drummond, 17 July 1782, Jtf. 2313 ; Skene 
V. Skene, 31 July 1725, Edgatj M. 11,354; Robson v. Robson, 
18 Feb. 1794, M. 14^598; Erskine's Trustees v. Wemyss, 13 May 
1829. 

2. The terms of the various deeds executed by Mr Glasgow de« 
monstrate his intention, that after paying his debts and legacies, 
his whole property of every description, land as well as money, 
(other than the lands which he had himself entailed,) should be 
realised, and employed in the purchase of lands contiguous to 
Montgpreenan, and to be added to the entailed estate. 

Holding, then, the intention to be clear, and that the lands in 
question were sufficiently conveyed by the terms of the general 
disposition, it follows, that all the power which was in the truster 
to execute the purposes he has expressed, must be held to be vest- 
ed in the trustees, or in the Court, with a view to the benefit of 
those for whom the trust was intended, and for fulfilling the va« 
nous purposes of the trust 

Pleaded for the Heirs of Entail — Admitting the intention of the pieas of the 
testator to be such as stated by the pursuers, and also that it would H«ira of En- 
be for the advantage of the defenders themselves, that lands nearer 
to the entailed estate of Montgreenan should be entailed, in pre- 
ference to a villa situated at a considerable distance from it, yet 
the terms of the trust-deed, being the only authority under which 
the trustees act, must be held to be the criterion of their powers ; 
and that deed contains no clause whatever empowering the trustees 
to sell the property in question, or, indeed, any landed property 
whatever. The trustees are empowered to apply the proceeds and 

z2 



.336 .DECISIONS OP THE No. 87. 

7 Mar. 1832 . p^o^uce of the heritable property in the purchase of kuub, but no 
GuTX^ power is given to them to sell any of the real estate ; so tbiM; there 
ivostees t;. being no warrant for the measures contemplated in the deed, such a 
Fnulii a!i^^^ .pow^T eadfi<)t be inferred by impUcaition ; nor is it eempetent tQ re- 
the Heirat- mody a defect of this oatore, however de^ the intentum may bo sup* 
^^' posed to be^ by siich an action as the present, the object of which ift to 

call . upon the Court to supply the supposed omission in the testae- 
tor's settlement 

picas of the Pleaded foj the Heir-at-Lawi— 

LaT. * '• The property of Seafield not having been conveyed specially 

to the pursuers, add the truster having had na intention of entail- 
ing that property, the pursuers are ncft entitled, by virtue of the 
trust-deed^ either directly or indireetly, to ioipose on Seafield, or 
on the surrogatUm tliereof, the fetters of an entatl, to the prejudice 
of the deiisBder, aa one of tbe triust^r'^: beirs-at^law* 

II. Supitoeing that Seafield should be held td &U under the^^ 
neral description of subjects jeonveyed to the pursuers, there are 
no termini halnles in the trust-deed for selling Seafield; or other- 
wise realising its price or proceeds, in order to their being applied 
fot behoof of the heirs of entail* 

. III. All attempts to impose tbe fetters of an entail being strio* 
tissimi juris, and not matter of implication, and the provisions, of 
the trust being quoad Seafield inextrictd)le, unintelligible or de^ 
fective, that property, to which the limitations contemplated have 
not been duly extended, must, in dubio, be suffered to descend 
agreeably to the legal coutae of succession, nor, in such drcum- 
6tanceS| can the authority of a court of law be interponed in aid of 
an unsuccessful attempt to impose nniavourable restraints upon, or 
to defeat the rights of the heir-at-law ; Ersk. iii. & 129 ; Lord Eldon's 
Speech in the case of the Duke of Roxburghe v. Kerr, Daw^sRe^ 
ports^ ii. 210. 

IV. In order to entitle trustees to sell or entail lands, especially 
to the prejudice of the heir-at-law, it is not enough that the trus- 
ter intimate, or even express an intention to that effect; there tauist 
also be formal clauses in the deed, giving tbe trustees ponrer to 
carry the intention into effect; and in the present instance^ there is 
no evidence of an intention to entail the lands of Seafield^ «i? of 
an intention that the trustees should have a power to sell, these 
lands, and apply their price in the purchase of lands to be entailed. 
At all events, the trust-deed contains no clauses whereby such 
supposed intention can be lawfiilly carried into effect ; and as the 
deeds in question must be strictly interpreted, a court of law can- 
not competently supply this defect. 



No. W. CX)URT OF SESSIOK. 387 

V. Ev^n suppoBing tliat tlie lateBtion of the truster had been 7 Mar. \SS2. 
less ttBbig^oimly expressed than it is, l^e present net being a ques- ^""^V^^ 

tion in which a mere expression of intention^ without the legal and ^r„sf^^*^ ' 

tecbnioal means of carrying that intention into effect, can be of avail, The Heirs of^ 

the defender is not barred from taking advantage of any defect or the Heirliu- 

ambiguity in the trust-deed, in order to free the trust-estate, or Law. 
part there(^, from fetters attempted to be imposed to his prejudice. 

At the advising Laxd Balgray sud — Although, in construing set- Opmion of 
tlements of this nature, whereby the heite-at-law of the testator ^^^^ 
were excluded, they were entitled to the benefits of any doubts 
which might arise as to the interpretation, yet that, taking the whole 
deeds executed by the deceased together, he had formed a clear 
opinion in favour of the powers claimed by the trustees. As to the 
intention of the testator there was, and could be no doubt ; and 
although no express power of sale was contained in the deed, }'^t 
snch a power was clearly implied from the varisovs clauses and the 
expressed purposes of it, the leading one of which was to enlarge tlie 
entailed estate by father purchases. The lands in question were 
anfteiently conveyed to Ae truslees by the general terms of the dispo^' 
sitive Manse ; and the trustees are empowered to enter into possession 
of the whole eitate and effects conveyed, to tevy, sue for,, receive and 
diteharge the interest and produce thereof,. &c. ; and, * in general, 

* to do, ^r cause to be done, all matters and things whatever con-'' 
^eemfaig the premises, which I couM do -myself if in life,' &c. 
The iostrttCti<ms for the purchase of lands were repeated and expli-i 
eit It is provided, that all the testator's ^ monies, whefher heri-^ 

< tably secured or otherwise,' or other personal estate, which should 
belong to him at the time of his cleath, (with the excfeption always' 
of the entsuled |Hroperty,) should be laid out in the purchase of laod^ 
in the vicinity of Montgreenan. And, again, the trustees are di- 
rected, < as soon as they shall h^ve it in their power, from the stat^ 

* of the trMist^fdnds, and as they shall think proper, to appropriate and 
^ apply ouch produce or proceeds of my real and personal estate,' 
^ hereby conveyed, to the purchasing of lands or other herifages in' 
' Scotland, lying contiguous, or as near as may be, to my said lands 

< and estate of Montgreenan,' &e. The iiitentibii, thereifbre, of the 
testator was obvious ; and unless a po^er of sale was implied, al- 
though not expressly conferred, the declared purposes of the trust 
oeiMllotbejCarried into execution, for dmng which the trust-deed 
eontained a procuratory and precept Further, it was to the heir of 
entail alone that the trustees were accountable, it being provided 
by the testator, that (tfter the residue or free reversion of his said 
estate should be so invested, (in the purchase of lands,) the trus- 



838 DECISIONS OF THE No. S7. 

7 Mar. 1832. tees are < to denude of this trust, and to pay over any balance in 
^■^V^^ ' their hands,' &c. < to the said heir of entail in possession for die 
Tru^ees v. * ^^^ ^' ^"^ ^ deliver over to him the whole title-deeds, &c of 
The Heirs of the lands 80 purchased, together with the vouchers and dischaiges 
the Heir^au ^^ debts, and all other writings connected with the trust. 
Ijbw. Lard Craiffie was of a different opinion. The pursuers toM 

Opinion of claim nothing unless by the acts and deeds, of the late Mr Glas- 
Court. gow ; and by these they could take no part of the lands, unless 

under the fetters of an entail in all respects similar to that pre- 
viously executed by him. The lands of Seafield were not con«- 
tained in the entail. On the contrary, it has been admitted, and 
proved by real evidence, that these lands had been ex proposito 
left out Again, none of the subpeqiient deeds specify the lands 
of Seafield, and there is no procuratory of resignation or precept 
of sasine, without which they must remain in hsereditate jacente of 
Mr Glasgow, until taken up by his heirs-at-law. There is no 
power to sell these lands. < The proceeds and produce' of the 
real and personal estate, or, as it is otherwise denominatedi * the 
< residue or free reversion of the said estate,' do not^ in words, 
or by necessary implication, indude the lands of Seafield. And 
' whether this arose from Mr Glasgow having, at the time, lost sight 
of the lands, or whether, intending to dispose of them himself, be 
did not think it necessary to take notice of them, the Court had no 
autiiority to add to the deed as made out by Mr Glasgow what was 
absolutely necessary for attaining the objects of the action now de- 
pending. Conceding all that could be said of intention, and also 
admitting the power of Mr Glasgow to dispose of the lands, of 
which there could be no doubt, the case appeared to faU under the 
rule, < quod voluit et potuit, non fecit' The only case quoted, 
which is in any degree applicable to the present, is that of Erskine's 
Trustees v. Wemyss, 18 May 1829. The question arose, like 
the present, from a tmst-deed, by which extensive estates were 
to be entailed, and among the rest the lands of Atherney. There 
were other lands of considerable amount to be sold for payment of 
debts, legacies and annuities ; and, in an amicable suit between 
the trustees and the heirs of entail, a state was given in, from which 
it appeared, that after a sale of the lands last mentioned, there 
would be a shortcoming of about L.200 a-year, until annuities to 
that extent should come to an end. The case was compared to that 
of a process of cognition for the sale of lands belonging to a minor, 
and on that ground the trustees obtained authority to sell certain 
lands ; but that decision appeared to be erroneous, botii from the 
want of powers in the Court, and because opposed to the express 
deed of the entailer, requiring the lands to be entailed. 



No. 87. COURT OF SESSION. 339 

Tke Lord Prerident and Lord GilUes concurred in the opinion T Mar. 1332. 
first delivered. - ^^^sr^ 

Lord GilKes observed ^That it was true that the trust-deed xru^elut;. 
contained no express power of sale, but such a power might be given The Heirs of 
by implication from (lie various clauses and general purposes of the ii^^^jj^yr^ 
trust-deed) although this was no doubt a delicate point. It was — :— 
• true, also, that fetters were not to be imposed by implication ; but Q^^ru" ^ 
this was not a question of fetters, but of the testator's intention as 
to die destination of his property. His whole estates, with the ex- 
ception of the lands entailed, but including the property in ques- 
tion, had been conveyed to trustees. If it could be held that this 
property did not fall under the conveyance, the case would be very 
different; but this was not even alleged. How, then, was this ge- 
neral conveyance followed up ? The trustees were directed, after 
the payment of debts and legacies, to apply the whole proceeds of 
the estates so conveyed to the purchase of lands in tlie vicinity of 
the entailed estate, and to entail them upon the same series of heirs. 
But this purpose could not be effected, and the trustnleed would 
thus in a great measure be rendered nugatory, if a power of sale, 
jfer the very purpose of purchasing other lands, were not held to be 
c(Miferred upon the trustees. If such a power could, in any case, 
be found to b« given by implication, his Lordship could not figure 
ft stronger case for such a construction than the present. 

Upon the question of expenses, their Lordships were unanimous- 
ly of opinion, that they ought to be paid out of the trust^funds, and 
that the amount should be regulated between the trustees and the 
heir-at-law, as in a question between i^nt and client. 

The Cawrt, therefore, ' fiind and declare, that, under the direc- Judgment. 
tions contained in the trust-disposition and deed of settlement 
executed by the deceased Robert Glasgow, Esq. the trustees have 
full power and authority to sell and dispose of the lands of Seafield 
within mentioned, for such price as can be obtained for the same 
by public sale; find and declare, that the said trustees have full 
power to grant a valid and unexceptionable title to the purchaser 
of the said lands, and to apply the free proceeds of tlie said lands 
in purchasing lands to be settled and entailed in terms of the di- 
rections in the trust-disposition and deed of settlement : Further, 
find the trust-funds in the hands of the said trustees chargeable 
with the whole expense of the process, and authorise the trustees 
to take credit for the same accordingly, in accounting for their in- 
tromissions under the trust, and decern : Find the trustees liable 
as such to William Allan, called by a supplementary summons as 
f a defender, in the full expenses incurred by him in this litigation. 



340 BECISIONS OF Ttl£, I^o. 87. 

7 Bfar. lass. < and Temit, the aaooniit tber^ to tk$ Ajiditof) to Oiz (he saaae w 

^■^ y^ < between client and agent, and to report.' 

Glasgow's 

The HeiHof •'^^^ Cordiome, Ordbary. Act. Dmdi ^ Fac (Hcpe^J Ketufi Sob, BoherUtm, 
EatMl and the Robertson jr Beimet, W. S. Agents. For the Heirs of EnUil, Arthur Comt^ 
Heir.afc-Law. For the Heir-at-Law, Skene, RutherfM, Wm. Sdl, McLean ffO^B^, 

W. a Agents. 5. Clerk. 

c. 



FIRST DIVISION. 

■ 

No. LXXXVIII. 8 Mardi 1832. 

MURDOCH AND BEOWN 
WYLIE AND NOBLE. 

r 

Procbas. — Advocation. — £xp£K6£S. — Where decree is gwen in 
an u^erwr court inffuvour <^a peartyy bid no expef^eefatmd dtitfy it 
is nojnpeieM, idih&Uffh no advocation has been brodtght on thisgrewd^ 
to find stuh party entitled to these cftpensfis in an advooation on th^ 
merits^ brought at the instance of the other papfy^ 

• 

The respondents, Wylie and Noble^ raised an aetion before the 
Sheriff of Ayrshire agunst the advocators, Murd<Ksh and BrowBt 
setting fprth, that they (the advocators) were joint tenants with the 
pursuers in a lease, although their namaa did nQt-ani^^ in the wri(>- 
ten contract, and concluding that they should be decerned and or«> 
dained to free and relieve the pursuers of certain sums, as the h|Jf 
of the rents then due, &c. The Sheriff found the defenders liable^ 
jointly and severally, for the sums, and interest thereon ap libelled ; 

< but, in a question where there has been a good deal of looaeness 

< and inaccuracy in doing business, ./{neb no esipenses due.^ 

The defenders brought an advocation dn t)he marits, but the pur- 
suers did not advocate on the finding as to expeoQes ; and the Lord 
Ordinary advocated the cause, and ordained another person to be 
called as a party ; and, after a good deal of procedure, which it is 
unnecessary to notice, the Lord Ordinary remitted the caiise Simpli«- 
eiter to the Sheriff, and found the respoBdents * entided to exp^ose^ 
* both in this and in the inferior court' 

' . The advocators reclaimed^ and with regasi to expenses, object^y 
that it was incompetent, under the circumstances^ to award them. 



N4». 88. COURT OF SESSION. 841 

The Sheriff had expressly found no expenses due ; and as the respon- 8 Mar. 1832. 
dents had not brought that part of his judgment under review in the ^*^V"^ 
only competent way, viz. by a counter advocation, the present advo- srownt. ^" 
cators were entitled to the benefit of it, and this had been express- Wyiie and 
ly found in the case of Pollock, Oilmour and Company r. Harvey, ^' 
5 June 1828. 

It was answered^-^Tbat by the advocation on the merits, which Defeoden' 
was raised by the other party, the whole cause was brought from ^"' 
the inferior court before the Court of Session, and there was no* 
thing for the successful party to advocate, so that it could not be 
incompetent for the Court ci Session, if they saw fit, to find the 
respomlents entitled to the expenses incurred by tketti in the ^ in- 
ferior coturt. 

Their Lonkhips held th«t the judgment of this Division in the Opinion of 
OBse of PbHpck and Company v. Harvey was clearly in point; but 
one dedsion did not eonstitute law; and the Lord President said, 
that before deoidang the point, dieir Lordships wiould consult the 
other Judges. When tlie ease came again before the Court, his 
Lordship* intnmted, that the whole C!onrt were now utimAtsiomif 
of opinion, diat the decision in the case referred to was^rfone^ 
Gos, and ou^t not to be foUowed. It was true (hat, in tliepresent 
ease, there was no' oMmler anivMlrtion, but ttiete vn»iio oocttiioii fov 
nochm piooeeiding, for, by the adfMation on die merits, and the in* 
teiioouter of the LotdCMbnr^ advwatingite (ftMe,^life4rhdeeaiaM 
was 'brought hiefone die Court m if it'w^re tti «rigi]|al actiM) so 
that there was nothing for die other party to advocate; and it-irao 
eonsoquaoidy ompetent for die -Court fo pi e wwmoo such judgment 
aa'thoy«i([^ flunk just,^ther on the merits or on the question of 



ir Lordships therefore refosed the note* judgment 

hari CMkdvte, Ordhukiy. AcW Sm^^ 8kaw» Mmm Qsmmti, AgunL Ait. 
Joaewm, Cowan, Hamiitatu Daaddmm ^ Qa^fbtU, W. S. Agents. * jEL 
Clerk. 

a 



842 DECISIONS OF THE No. 89. 



FIRST DIVISION. 

No. LXXXIX. 9 Mardi 1882. 

NEILSON 

against 

THOMPSON. 

Process. -^JoEisoicTioN. — Adrogation. — Statute (General 
Turnpike Act) 4 Geo. IV. c. 49, — An adoocatian of a judff" 
ment ptimounced by a Sheriff under this statute is incompetent. 

The advocator, Neilson, presented a summary petttion to the She- 
riff of Lanarkshire, setting forth, that although fidling under the 
exemption contained in the d6th section of the General Turnpike 
Act, he had been required to pay toU-dues by the respondent, the 
tacksman of th« tolls in that district^ and praying the Sheriff to find 
that the exaction was illegal, — to ordain the respondent to repeat 
the toll-duty levied, and to pay a fine, of L*5, as Ijie. statutory penalty. 
The respondent waived objection to the competency of the action 
before the Sherifl^ on the understanding that, whatever the issue 
might be, the penalty sued for would not be exacted ; and on the 
merits he maintained, tha^ under a fidr construction of the whole 
statute, the pursuer was not entitled to the exemption claimed by 
liim. 

The Sheriff having sustained the defences, and assoilzied the de- 
fender, the pursuer brought an advocation ; to which it was object- 
ed, under the 12th section of the statute, that it was inccnnpetent, 
in respect that the judgment of the Sheriff is thereby dedared to be 

< final and conclusive,' and < not subject to review by advocation, 

* or suspension, or reduction, or by any process of hiw whatsoever, 

* any law or usage to the contrary notwithstanding.' 

The L<ml Ordinary < sustained the objection to the competency 

< of the advocation, &c. and found expenses due ;' and the Court ad- 
hered. 

Some of their Lordships entertained doubts how iar the original 
acdon, being of a declaratory nature, was competent before the 
Sheriff; but holding it to be competent, (and the party here had se- 
lected hb own court,) they were of opinion, that the judgment of 
the Sheriff was final, and could not be brought before the Court of 
Session by advocation. The intention of the Legislature, in com- 



No. 89. COURT OF SESSION. 848 

mitting jurisdicdon to Sberiffii under the turnpike act, (the usual 9 Mar. l8Sf. 
nature of the action being for recovery of toll-duties,) was to set- Wv^«^ 
tie all such disputes at once ; whereas, if advocations were allow- i^^!^^, 
ed, this intention would be defeated, and an endless field of litiga- . 
tion opened up, and therefore it was provided that the judgment of 
the Sheriff should be final 

Jjntd Ofrdnonm^ Ordinary. For the Advocator, Vtaii of Foe. fHoptJ A, M'NaU. 
Chas. Fisher, Agent. Alt. Pai, RoberUon, Jamu Anderstm. John M*GiU, 



Agent. 5. Clerk. 



c. 



SECOND DIVISION. 

No. XC. 9 March 183*2. 

Mrs KASMYTH or MACQUEEN, and Others, 

offoinst 
Sir JAMES NASMYTH'S TRUSTEES. 

Provision to Heirs and Children. — Annualrent. — Jnmud^ 
rent not aOowed uponfoymmb made by ajat/ier, diainff his life, to 
axy of his dtiUhren, when oaleulaHnff the amount of these paymentsi 
in order to make vp an equal portion efUr his death to another 
daughter. 

In this case, as already reportedi of date the 39th January 1831, 
the Court found as follows: < The Lords having considered this 
^ note, with the other proceedings, and heard counsel, alter the inter- 
* locutor complained of: Find, that under the oomplainer's contract 

< of marriage, to which her fiither, the late Sir James Nasmy th, be- 

< came a party, she is entitled to draw a provision equal in amount 

< and value to that which has been made in favour of any of the 

< other daughters of the said Sir James Nasmy th ; and that in as- 

< certaining the amount of the provisions made to any of his other 

< daughters, there must be taken into account the sums that may 

< have been advanced or paid to such other daughters during his 
^ lifetime, in name of annuity, or of interest on the capital sums of 

< such provisions payable at his own death ; reserving to the par- 

< ties to be fiurther heard on the complainer's claim of accumulated 
^ interest eflfeiring to such advances, as set forth in her pleadings : 



344 DECISIONS OF THB No. m, 

9 Mar. 1832. < And with these findiilgS) remit to the Liord Ordioaiy to proceed 

^^^V*^ < fitrthcr in the cause as to Us Lonlship shall seem fust' 

Marqmen, &e. '^'^ caose accordingly returned to the Lord Ordinary, who, on 

n. Nasmytb*8 the 18th Jane 1831, pronounced the fbllowinff^ interlocutor: * Tlie 

' Lord Ordinary having heard parties' procarators on the didm made 

^ by Mrs Macqueen to have her interest in tiie moltiplepeiadiiig 

^ sustained to the effect of giving her such a share as shall be equal 

< to the portion or fortune which her sister, Mrs Dafaymple, has 
^ ceived and become entitled to, through or from her &ther, 

< reject the Court has, by the interlocutor of 29th January last, 
^ found that Mrs Macqueen is entitled to draw a provision equal 

< in amount and value to that of any of the other daughters, and 
^ that the provision would not be equal in value unless it be held that 

< the interest was received half-yearly, as is stipulated in Mrs 
^ Dalrymple's contract of marriage, therefore appoints Mrs Mao- 
^ queen to put in a state of her ebuBi, in terdis of this interlocutor, 

< and when given in, allows the same to be seen.' 

m 
m 

The defender redaimedi and the Court, before answer, remitted 
to the Lord- Ohlinary to receive the ^Me of daims oidered by the 
interlocutor under review, and ^tiiepeafter to hear parties fiurther 
thereon ; it < being understood that &e claims of Meb .Macqueen 

< for interest upon sums equivalent to those payable half yearly to 
^ her sister, • Mis Dalrymple, in the -lifetitte' of .hec &thei^ aftike mt 

< terest of the principal sum provided by her nintriagf» ooniwct, 
^ahaHbeheldasstiHopenibrdiMsassion.' i 

Hie cause accordingly ietiini^d«4o "the Lord . Osdinary, «nd \an 
additional claim was made by Mrs Macqueen, in which she atiked 
the interest upon each half-yearly payment of the annuity, from the 
term at wliick k was paid^ b^iiiailDg widi the .fiast ,pa|ane]lt jof 
L.to at lifertfainM 1615, down to the fast tetmbiifim Sic JiOMS 
Nasmyth'g death, at Whitaunday 1^89 ; the wMe principal awas 
of annidty paid during ihis period. bebg L; 1450^ and the iateiMst/ 
(holding it ^ bedue npstt eachf«d«attce.£ran tisdate, irai with-* 
out anyatecttfliuladon tinto aaww^oapital)) amoahtHig.to Xi^Si Ifisi 
Md. 

The Lord Ordinary ordered sainntes «paii dris AddMoaal daim, 
and afterwards took the cause lo<nf)«vti with tke foUowing.inteib^ 
cutor and note ; 

< The Lord Ordinary makea anuandnm to the Lords o£ the Se- 
« cond Divisiaii *ef tbe Coort widrtbe aumiftes for the parties, and 

< whole process^' &e. 

< TMe^ — Hie view taken of this case by the Lord Ondinary 
^ waS) that when die fether stipulated to give Us 



No. »«. COURT OF SESSION. 845 

tei Bttdi ihue or pwypiptim».of to c fcc te at iiii detdi as sball be D Mkir. 1882: 
eqiid (D the portion mt futibnn wbidk any of Mi- danghtero shall ^"^y*' 
ham or becoaw: entidfid to thiaugL. or firam- him, he alluded to ^'^l^u^^^c. 
the capitel aom seMlad aa a p^aviaioft or marriage poitioo, and v. NamyUi's 
tih^ ^ vaa the share at hisifiyrlmie he meant to be bestowed up* '^^^^^' 
on: his daughter; A. tnafriage. provision or toeber he indined 
to'view aa tixe capital auai stipulated in the contract at whatever 
time payable ; and that if a fother agrees also to pay the interest 
during his life to any of his daughters, this is a payment in addi- 
tion to Ihe marriage pottioD^ made-enaooonnt of the husband not' 
being in aAuent cnrcumstances, saved firom his own annual ineome, 
and which he would otherwise have expended, if the means of the 
manried pdrhhd' beev moferampie.. . In- short, that sadi would be 
an addxtion 'to; die peovision, but net* the povision kself. He 
coaeeivad Sir James Nasmyth to have noted on these principles, 
on the marriage of him thsee eldest daughters, suiting the diffe^ 
rent8tipobdon&.indiei^ nspocdve coBioraots to the diffisMnt oir^ 
eumstancesi . Net being aUe to say, at die time cX the first mar- 
rii^;e^ what pr o vkieMs^he would be able to make upon his-daug^ters, 
^he agieed ta give Mrs Maoqueea as large a pertion as any other 
daaghtsr. On Mrs Villim he setded an annuity of L. 100^ and to 
Mm Salrymple he agreed* to pay, by way of provision or toeher, 
the spedfie sum of L.20W), wiA the legal interest from the term 
preeediiig her marrii^. The Court, however, did not adopt this 
view^ and held, that the interest paid during the fiither's life was 
to be reckoned a part of MfsDalrymple's provision or toeher, and 
that Mrs Macqueen was entided to be put<>n a feodng of equality 
with her. The Lord* Ordinary does not see how this can be done 
without taking into view that this interest was not only payable, 
but aetaifly paid half yearly. It is no doubt true, ttot interest 
upon interest is not exigible bythe kw of Scodand ; and if Mrs 
Dalrymple had forborne during her fether's life to ask payment, 
sire Gould only claim, at his deadi, the principal sums of interest. 
But as the interest was actually paid to Mrs Dairymple> and as 
die payments to her are to be the measure of the share of the fii- 
ther's effects, to be paid at his death to Mrs Macqueen, the Lord 
Ordinary cannot see how she can be put on a footing of equality 
widi her sister, unless the claim is sustained to the utmost extent 
made by her. 

< If the Lord Ordinary has not misunderBtood the illustration from 
dM case of legitim put by the respondent, he is inclined to doubt its 
bearing on the present case. If money is to be repaid with inte- 
rest by a debtor, compound interest cannot be exacted. But where 
it is not to be repaid by the person who has received it, but is to 



346 



DECISIONS OF THE 



No. M. 



Nasmytb or 
MacqueeD, ftc. 
V, Naamyth's 
Trustees. 



9 Mar. 1832. * be retained by him, as legally ISb own share of a eertam fand, and 

* another person is to get an equal shaie with him of this fund, and 

< farther, if the payment to him was by way of annuity half-yearly, 
^ would not simple interest on the^e payments be taken into ao- 

< count, on tiie same prindple ^t it would be due on the single 

< capital sum in the case put ? To Teomc L. 1400.at the end -of four- 

< teen years is a very different thing finim receiving L.50 half yearly 

* during that period, and will be a very different share of a man's 

* fortune. 
* Under these circumstances, the Lord Ordinary has thought it 

< best to report the case for decision by the Inner-House/ 



ClaimanU' 
Pleai. 



Respondents* 
Pleas. 



The claimants jdeaded—That as it was now fixed by the judgment 
of the Court that Mrs Macqueen was entitled to claim a provision, 

< equal in amount and value' to that made in &vour of any of the 
other daughters of Sir James Nasmyth, and that, in ascerttdning 
such amount, the payments made in his lifetime, ' in name of an<* 

< nuity or of interest,' to any of his other daughters, must be taken 
into account, the only question which remained to be inquired in* 
to was, what was the value, in the year 1829, of payments actually 
made and advanced at Martinmas 1815, and in the successive in- 
termediate years ? And that the claimant would not be put on an 
equality with her sister, unless interest were allowed to run on each 
payment from the time when it was advanced. The present is not 
a demand for compound interest, but merely for simple interest up- 
on )Biach advance separately made, which formed a principal sum in 
so &r as the claimants were concerned, and wUdi tiiey had a right 
to demand on the death of Sir James Nasmyth. 

The respondents oit^UTer^^— That by Mrs Baltymple's marriage'-' 
contract, to whose provision Mrs Macqueen now assimilated her 
claim, Mrs Dalrymple was secured in a tocher of L.2000 sterling, 
payable at tlie first term after Sir James Nasmyth's death, with 
legal interest thereon from the term of Whitsunday 1815, payable 
half yearly. The claim, therefore, now made is obviously for com- 
pound interest, or for interest upon the interest which was paid to 
Mrs Dalrymple. This demand has not been decided by the previous 
judgments of the Court, but is eiipressly reserved as one which is still 
open for discussion. The provision made for Mrs Dalrymple was a 
portion of L.2000, payable at her father's death, with interest from 
the time of her marriage ; but suppose that the L.2000 had been 
instantly paid to her, which would have been a more valuable pro«> 
vision, it is obvious that the claimants would only have been enti-^ 
Ued to demand simple interest upon that sum from the date of pay-* 



No. 90; COURT OF SESSION. 847 

ment, which would just be th6 amodnt of the payDaekits made to 9 Mar. 1839* 
her in the name of interest during the life <^ Sir James Naffinyth^ ^s^v^^ 
without any accumulation of interest upon theak The claimi there* Macqueent &c. 
fore» now made is for compound interest^ which is uidmown and v, Nasmyth's 
disallowed by the kw. ^'"''*^ 

The Court held^ that they were not precluded hem considering Judgment. 
the merits of this claim by the terms of their former judgment, and 
pronounced an interlocutor, finding that interest could only run upon 
the accumulated sum from the time of Sir James'Nasmyth's deaths 
and not upon the termly payments made in name of interest duriog 
his life. 

Lord Ordinary) Midwyn, Act. Dem of Foe, f Hope, J and J. More. Alt* An^ 

denoH, James Sridyes, and Cranetaun jr Andereon, Agents. T. Clerk. 

u. 



SECOND DIVISION. 

No. XCI. 9 March 1832. 

JOHN LENNOX KINCAID 

againat 
Sir ANDREW AGNEW. 

Member of Parliament. — Stat. 16Gbo. II. c. 11. — 1. Where 
a retotar does not offer complete evidence of the old extent^ it is com" 
petenJt to suppfy the deficiency from another retour including the same 

lands. 

2. A sUght discrepancy between the extent in cumvlo in the valent and 
the mm toted of Hie several parcels included in the descriptive clause 
wUl not affect the valuation of any particular parcel as stated in the 
latter clause, 

3. Where a party is served heir in the pro indiviso half of certain 
landsf will the retour of such service prove the valuation cdso of the 
other half in a claim of enrolment on the whole lands f 

At the election in May 1891 for the county of Wigton, Mr Lennox 
Kincaid claimed to be enrolled as a freeholder on the lands of Bal- 
goone or Balgowan, which, he alleged, were proved to be a three- 
merk or forty-shilling land of old extent by the following retour of 



S4S 



DECISIONS OT THE 



No. 91. 



Kincdd v. 
Agnew. 



4 Mar. i9Qt Janet Campb^ HI ISaey^ashrir-portimertoJiergrandftUfaer: «Qiu^ 

< quendmn Flidaiis Caflupbellde Oomrell, avw Jaiiete OEonpbell far* 
^ triete pneeeatiiiBa, efent ultinio vestit etfladt ut de feodo^.ad fidem et 
^ pacem S. D^ N. Regis d; siior. pradeeeissorum de bmDtiM»et siiq^ 
^ lis decern mercatis cum dimidia mercat. temur, siibeoripiTiSk tKtraii 

< mercatis terrar. de Airie ; tribos mercatis terrar. de Knokbrek et 

* Anel»nss^ tiibus mercatb ti^rrar. de Balg^oone ; et de viginti^so- 

< lidatis terrar*. de Banibrok,a]itiqtti exteatus, com peitiiien. jflcen* 

* in pnochift de Kirkomn, infra vieeeomitat de Wigtoon^ Et qtio4 
^ diet. Jeoieta* est una de duabus hseredibus poili^nariis diet qnond^ 
' Fihlaij avi stti, de preddiet. terris, cum pertiDen. viji.de dlttildietats 

* eanm. extenden. ad quinque mercat et quadraginta denariar* terw 

* rarum supra script. Et quod est legltimse SBtatis. Et q. prsedict 
^ quinq. mercat» et quadri^nta denariisur. terrarum ptedict ^ 

< decern mercat. cum dimidia mercat terrarum prescript valent 

< nunc per annum, decern libris et decern solidis usualis monetss 

< regni Scotiae ; et tempore pacis valuerunt tribus libris et decem 

< solidis monetse prsescript/'&c* 
And in corroboration of this retour, the claimant further produced 

a retour of John Macdowal of Gbirtiiland to his fatiier, Uchtred 
Macdowal, dated 17 October IMO, is^rhich, in the descriptive ckmse, 
enumerates various lands composing the barony of Corswell, and, 
in particular, the four parcels mentioned in the former retour, (oiiut- 
ting, however, the words * et Auchinss,') as constituting a 10^ 
merk-i-land; and the- amount of the whole lands is stated in that 
clause to be 60§ merks, with which Sum total the cumulo valuati<m 
in the valent clause predsely corresponds, dllibugh, according to 
the correct summation of the several items in the descriptive clause, 
tlie amount ought to have been only- 61 merkg. 



Pursuer's 
Fleas. 



The freeholders having reAised to sustain the claiiQ,. Mr Lennox 
Kincaid presented a petition and complaint to the Court of Ses- 
sion, and pleaded-i-^h A retour, which states in- the descriptive* 
clause the respective values of several parcels of lands, and in (he 
valent clause the corresponding vahie. of the whole in oumulo, af- 
fords sufficient evidence of the value of each parcel ; «Wight^ 10B ; 
therefore, if Janet Campbell had been served sole heir of her grand- 
father, and the valent clause had accordingly stated the whole tbIuc 
of the lands enumerated in the descriptive clause, sudi retour must 
have been held unexceptionable evidence of the old extent of the 
hinds on which the present claim is founded* 

But this evidence is in no degree affected by the ciromiistBiice,. 
tliat Janet Campbell was served as one of two faeirs-portbners in 
the half of the lands in question ; for if the retour prove tiie value 



Ho. 91. COURT OF SESSION- 849 

<»f .the half of these hinds, it most, of absohite necessity^ establish the 9 Mar. 1832. 
valoe of the whole, sinoe her right is to a })ro inditriso half of the ^I'^V^ 
whole lands in which her ancestor died last vest and seised, and of ^"1^1^ ^' 
which, consequently, there could not in the interim have been any .— — 
legal division. The case of Macdowal v. Buchanan, 20 Feb. 1787, ^j^J^^^;*""*''' 
M. 8625, relied on by the respondent, affords no rule for the de- 
termination of the present question. In that case, the ancestor, 
Sempitl, never was vested in the whole subject. He died vested 
only: in ^ all and whole the half of the 26s. 8d« land of Blackburn^ 
* extending to a ISs. 4d. land ;' and it was stated in the valent 
clause that the half did accordingly extend to the latter sum. . But 
t^ere was this radical objection, that there was no proof whatever 
that the half in which the ancestor had died vested was the exact 
mathematical half of the whole. The retour produced had relation 
to property already divided ; but when or how divided, no account 
whatever was given. The other half referred to in SempilPs retour, 
if ever valued under a retour at all, might have been rated much 
lower than his portion, and consequently his valuation did not ne- 
cessarily prove the extent of the other half to he the same. 

II. The valuation deducible from Janet Campbell's retour is con- 
firmed by the Garthland retour ; for while the former states the 
valuation of the pro indiviso half of the several subjects, the. latter 
gives the corresponding cumulo valuation of the whole ; Davidson 
v. Hill, 22 June 1802, M. 8597. No material discrepancy exists 
between the two retours, in consequence of the name Auchins being 
omitted in the Garthland retour ; for, if necessary, it were easy to 
instruct that it is a pendicle of Knokbrek ; Bell an Elect, 181. The 
difference of half a merk between the valent and descriptive clauses 
of the Garthland retour is obviously a mere error calculi, and there* 
fore not to be regarded; fViffhtf iii. 2 ; Bell, ]71« 

• 

Answered — I. It is the valent clause only which can afford legal Respondent's 
evidence of the old extent ^ Wigkt^ 167 ; BeU on Ekct. 169. Be- ^^^ 
sides, in the descriptive clause of Janet Campbell's retour, the va- 
luation of the lands in question is not described as being of old ex- 
tent ; the words ^ autiqui extentus^ Yeferring merely to the imme- 
diately preceding lands of Carnbrock, and not, as maintained by the 
petitioners, to the 9everal subjects there enumerated. 

On the other hand, the valent clause does not prove the cumulo va- 
luation of the whole lands. This clause applies only to a half of the 
lands; and for any thing that appears, the other half may never 
have been extended at all, or, if extended, to a very different va- 
lue. The conclusion drawn by the petitioner is not warranted by 
the terms of the retour. Janet Campbell is not served as an heir^ 

yoh. vih 2 A 



860 DECISIONS OF THE No. 91. 

9 Mar. 1832. pordoner pro indiviso in die whole lands, so as to give her an un^ 

\^^y^^ divided interest with the other heir-portioner in every gleba terr» 

a«ioi!n ''' ^^ *^® ehtire subject On the contrary, there seems to have be«i 

— — some sort of division of the lands ; for while the entire subject is 

B^ndent s jegcrii)^^ ^s consisting of a ten and a half merk land, the service of 

Janet Campbell is limited to the * dimidietate earum, extenden. 

* ad qoinque mercat. et quadrag^ta denariar. terrarum supra script' 
Accordingly, the valent clause is expressly limited to this half; 
Macdowall v. Buchanan, ut supra ; BeWs Supp. to Wight^ 36 ; Bell 
<m Elect. 170 ; C&nneUy 105. 

II. The Garthland retour does not ascertain the Value of the 
lands of Balgowan as a separate subject These lands are described 
only as a portion of a parcel of lands, and this parcel, again, is it^ 
self one ^f many others composing the barony of CorswelL The 
valent clause, in like manner, has nothing separately applicable 
either to Balgowan or the individual parcel of which it is -a part; 
Montgomery v. Ainsley, 15 June 1813. 

Further, while the valent clause of this retour extends the whole 
barony to 60^ nierks, on adding together the extents of the several 
parcels of lands enumerated in the descriptive clause the sum total 
is 6 1 merks. Now, if the valent dause must r^^late, the neces* 
sary resuU is, that in one or other of the particular items set forth 
in die descripdve chuse there has been an error of half a nierks 

A discrepancy between the two retOurs affords another fatal ob- 
jection. For, in Janet Campbell's retour, the lands are described a^ 

< tribus mercatis terrar. de Airie, tribos metcatis teitah de Knok- 

* brek et Auchiness, tribns mercatis terrar. de Bklgoone, et de vi* 

* gind solidatis terrar. de Cambrock ;' whereas these kUidii are de- 
-scribed in the GartUand retour as < decani mercatis cufli dimidia 

< mercate terre de Airie, Knokbrek, Calm^brok, et Biitlingowyne f 
Wight, 170. 

Opinion of The Lord Jtutice-Chrk held, that the dompet^ncy of fenncKng on 
Court. i)Qth retours to prove the complainer's qualification vras fixed by 

decisions, and pardcularly by the unreported case bf Gunning- 
hame, 6 Feb. 1802, in wldch his Lordship was a party, the Courts 
in sustaining the qualificadon in diat case, having proceeded <m 
evidence afforded by a combined view of three iseveral retonrt» 
Although his Lordship thought the case of Buchanan could not 
rule the present, which was materially different from the /ormer, 
he was not prepared to go the lengdi of holding that Janet Camp- 
bell's retour was alone sufficient to support the claim i but, on the 
other hand, he was dearly of opinion, that what was defecdve in 
that retoor was supplied by the Garthland retour, which was not 
liable to objection in consequence of the slight discrepancy of half 



No. 91. COURT OF SESSION. 361 

a merk between the cumulo of the valent elause, aud a correct sum- 9 Mar. 1832. 
auvdon of the several pareeb eontaiiied in ike deseripiive clause, J^^^C^ 
his Lordship holdiog tliis differeuce as a mere error c^ilculi. Agoew, 

The other Judges having oonearred^ 

Tl)e Cuurt sustained the oomplaiat, aitd or^aed the compkiiier Judgnwnf. 
.to be enrolled. 

Lord Moncreiff, Of dinary. For the Complaincr, Dtan qf Fac. {Hope^J Arch* 

BeU, VuHM Hathwrn^ W. S. Agent For ihu Respondent, Jamaon, 

Ivory. 77to$. Muckauief W. & AgeM. T. Clerk. 

& 



FIItST DIVISION. 

No. XCII. 10 Mardi 1832. 

Sir WILLIAM FORBES akd COMPANY 

(K/ainBt 
EDINBURGH LIFE INSURANCE COMPANY. 

Insurance.— 'Jury Triai^ (Biixof Exceptions). — L At afro- 
poMlJbr a iijk injsurattcey the p«rtp tohoee Ufe was to be iummed 
iiamng dedared that he woe then in heedih^ and thai Ms central 
health WM goodf cmdthe party ejeckngikat msarance hofoing made 
that declaration the conditioti of the poUcy^ otherwise the insoroMce 
to he nuttf and the ordinary rate ifpremimm hamng been agreed on ; 
•^ftmndy thai this was em express warrantjfihat tl$e iwmranee was 
not hazardous^ bid me oJ[ ordinary rish. 

11. — Li an action upon a policy^ payment having been refused on t/t^ 
groitndihat the assured had not disclosed the fact oftlie party whose 
Ufe was insured hadng been in the hsibit of taking opium to a great 
extent^ and the judge at the triai having directed the jury to con" 
sider^ whether a general question as to habits, put by the insurers 
to the parties referred to by the assured^ remained unanswered, and, 
if held unanswered^ whether this did not imply a waiver ffailf^r^ 
ther imgmiry as to habile g—^utut, that this was a misdirection im 
law, and that the jury should ha9e been told, that no such waiver 
was to be implied to relieve the assured from He disclosure qf every 
fact material to be known, as having a probable effkct aniheli^in^ 
sured. 

III. — In a bill of exceptions, a party may either except generally, or 
stale the growds of law which he maintains ought to have been hid 
down to the jury. 

2 a2 



d6g 



DECISIONS OF THE 



No. 02. 



10 Mar. 1832. In 1825 the late William Inglis, writer tothe signet, eifected/an 

^^«tf*y^^ insurance with the defenders on* the life of the late John Thomas, 

Sir W. Forbes Earl of Mar, to the extent of L.dOOO. When the. insoiance was 

and Co. v. 

Edinburgh proposed, the defenders gave out the usual questtona to be answered 
Life Insurance jjy ^^ party whose life was to be insured. In his answers to these 
questions Lord Mar stated, that he was * at present in perfect health, 
^ and that the general state of his health was good.' In answer to 
the question, ^'If at any time he had been afflicted with insanity, 
< gout, asthma, dropsy, liver complaint, or been subject to consump- 
' tion or spitting of blood, fits, hernia, or any other disorder tending 
^ to shorten life ?' Lord Mar answered, that he had never been 
afflicted nor subject to any of these complaints. His Lordship then 
referred to Dr George Wood, as a medical man, and Mathew Weir, 
writer to the signet, as a private friend. 

To the answers by Lord Mar was annexed the following deda- 
ation by Mr Inglis : < I William Inglis, writer to the signet, ha- 
ving an interest in the life of John Thomas Earl of Mar, the party 
mentioned on the other side, do hereby declare, that the preceding 
statement of his present and general health, age, and every thing 
therein contained, shall be the basis of the contract betwixt me and 
the said Edinburgh Life Assurance Company. And if any of the 
&cts set forth in the above proposal be not truly stated, then all 
monies which shall have been paid on account of the assurance to 
be made in consequence hereof shall be forfeited, and the assu- 
rance itself absolutely null and void. Dated at Edinburgh, the 
19th day of September 1826.' 

The following questions were then sent to Dr Wood and Mr 
Weir, to which the respective answers subjoined were returned : 



Have yon seen bis Lordship' 
lately, and how long since ? 

Was he then in good health ? 

Do yon believe he is now in I 

good health ? j 

What is the general state off 

his health ? f 

How long have you known! 

him? / 

Have you at any time known ' 

him to be afflicted with b- , 

sanity, dropsy, liver com- 
plaint, or been subject to > I have not. 

consumption, gont, fits, 

asthma, hernia, spitting of 
• blood? 



AnswerB by Mr Weir. Ana. by Dr Wood. 

I saw his Lordship on the ) «r i ^ , 
19th of last month. J Very Utely. 

He then appeared in per- 1 tt ,^ 
feet health. > tie was. 



I have every reason to be- I j « 
lieve he is so still. J ^ 

His general state of health f p « 
is good.- j 

For a good manf years, v Many years 



» I have not. 



No. 92. 



COURT OF SESSION. 



353 



Has he any other disorderl 

which has a tendency to > Not to my knowledge. 

shorten life ? j 

Can yon give any» and what, ^ 

infooBiaiidn respectii^ his 

habits? 
Whether active or seden- 
' tary? 

Temperate or free ? 

Do you know any reason why ^ 
an assorance on his lifof i 



Aiuweri by Mr Weir. Ana. by Dr .Wood, lo Mtr. 1682^* 

I believe he has 



not. 



He takes moderate exer- 
cise, and is temperate 
in his living. 



Sa W. Forbe» 
and Co. v. 
Edinburgh 
Life Ipsurancf 
Co. 



,j . ^r 1 >A Know ot none* 

would be more than usual- f 

ly hazardous? j 



He is active. 

' He is tempe* 
rate. 

I do not. 



Additional query to Dr Wood. Answer. 

Are you the ordinary medical at-1 From his Lordship never residing in 
' tendhmt on him ? if so, for how > Edinburgh, 1 have not had occasion 

* long? 3 to attend him profiBssionally. 

• 

Upon these documents the insurancerwas completed^ and a poU'* 
cy delivered by the defenders to Mr Inglis. Mr Inglis assigned 
this policy to the pursuerSf in part secnrity.of a bill for L.7OOO9 
drawn upon and accepted by the Earl of Mar, and which Mr Inglia 
had discounted with die pursuers. 

Upon the death of the Earl of Malr, the pursuers applied to the 
defenders for payment of the sum under the policy. This, after 
some delay) wa8.refased9 on the ground that there had been con-* 
cealment and misrepresentation .of .facta at the time of effecting the 
insurance. In particular, that then, and for some time previous, 
Lord Mar. had been in the habit of indulging in the use of laudanum 
and opium to a pernicious extent, so as to have engendered the seeds 
of disease dangerous to life, and although cautioned by his .medical 
attendants as to the danger of this habit, he continued to indulge in 
it to the time of his death; and that, from the effects of this habit, 
the Earl of Mar, at the time the insurance was effected, was much 
impaired and enfeebled in his strength and constitution, and his 
health was broken to such a degree diat his life was not insurable, 
or at least an insurance on his life was more than usually hazardous 
The concealment of these fects from the defenders, at the time, the 
insurance was effected, voided the policy. 

The present action was in consequence raised, and the following 
issue sent to a jury : 

< It being admitted, that on the 26th day of September 1826, 

* the defenders granted the policy of insurance. No. 6. of process, 
< whereby, in consideration of a certain premium, the defenders 

* agreed to pay to William Inglis, writer to the signet, the sum of 



3S4 DECISIONS OF THE No. 9S. 

10 Mv. 1932* ' L.dOOO gterlFng) on tie death of John Thomas Earl of Mar, and 

^««PV^ * ^^ ^ ^^^^ to ^^^ ^^ policy is now In the piirsnere; — 
Md Co ^^^^ * ^^ ^^^ ^^ admitted, that on the 20th day of September 1828, 
Edinixirgb * the Said Earl died ; — 
Life in«urance < Whether the defenders are indebted and resting owing to the 

* pursuers in the said sum of L.3000, contained in the said policy ?' 

The witnesses adduced for the pursuers all knew Lord Mar ; and 
their eridenoe went to establish, that he was in general good health ; 
that he Was an early riser, accustomed to take daily exercise, was 
acute in business, and had a very retendve memory ; that they 
never saw him intoxicated, or in a state of stupefactioii, and were 
not aware of his being at any time given to the immoderate use of 
opium or laudanum, and never observed any symptoms of that; 
that his affairs having got embarrassed, he after that became much 
mor^ retired and low spirited. His medical attendant in AUoa, 
who visited him frequently, deponed to his Lordship being ooca- 
sionally afflicted with rheumatism, but had no other complaint: 
That he knew he took laudanum occasionally when he was niiwell,. 
but never saw any symptoms of his having taken It to exeess, and 
thinks, if he had done so, he mqst have observed it. Loud 'Mar 
died of jaundice* 

The evidence for the defenders went to establish the famishing 
<yf large quantities of laudanum and opium to Lord Mar. From the 
excerpts from the books of the druggists who had l>een employed 
by Lord Mar, it appeared, that from September 1835 to February 
I6C69 large quantities of opium had been furnished by Robert 
Brown, druggist in Durham, in the neighbourhood of which city 
Lord Mar then lived ; and Mr Brown deponed, ' That these far* 

< nishings were made in considerable quantities at a time, that is to 

* say, 8 oz. of laudanum and 1 02. gum opium about every seven 

< days/ It was also proved by the bi»oks of the deceased Alexan- 
der Jamieson, druggist in AUoa, that large quantities had been fur- 
nished by him from 34 March to 11 July 1826; in that time 218 
OE. of opium had been furnished. From 7 Aug. to 6 Dee. 121 drs* 
of opium, and 304 oz. of laudanum had been furnished by Mr James 
Reid, then druggist in AUoa. Mr John Young succeeded Jamie^ 
son, and supplied Lord Mar with opium and laudanum from June 
1827 till the tune of his deatii in October 1828. During that time 
he furnished as foUows : 

1st Period, Opium and laudanum 138 days, 192 oz. laudanum. 
2d Period, 49 days, 107 oz. laud. 8 dozen opium pills, 
dd Period, 444 days, 1.004 oz. laud. 1 drachm opium, 25 dozen 

opium pills. 

2^ oz. a-day laudanum. 



No. 92. COURT OF SESSION; 35fir 

Sdme of Lord Mar's acTFants nroie to haTiog brought in laudaoum io Mar. 1832. 
to his Lordship. One of the haiadceeporQ swore to having^ at dif- Wy"^>^ 
fefsnt times, administend it to him; and another swore to his ha- l^^^o.^^^^* 
ving said he had taken it for thirty years. Drs Abercrombie, Mao- Edinburgh 
lagui, Duhean, Alison and Christison, concurred in opinion, that ^^ i^'^^nnc. 
taldag q>ium insueh quantities was pernicious to health : That its 
offiMt depended mneh on the constitution ; but that it prediq)osed to 
disease, ii^ured the stomach, and tended to shorten life : That the 
disease of which Lord Mai died (which was jaundice) was not an 
unnatural consequence, although not a necessary result, of such a 
habit. Dr Abererombie stated, that he had seen Lord Mar once 
qt tnrice m 1886 or 1826, and again, before his death in 1828: 
That before he saw him the first time he had got a hint from some 
of his firiends of his habit of taking laudanum : That he could not 
in 1825 certify that he was in sound health, and would have con- 
sidered the insuaance of his life as a risk of more tiian ordinary ha* 
xard ; and in estimating timt risk, tiie [wactice of taking laudanum 
was materiid to be known. • ^ 

After a chiffge by the Lord Chief-Commissioner, to the effect 
afkaiwards noticed in the bUl of exceptions, die jury returned ^ a 
verdict for the pursuers. The trial took place in March 1830-. 
No objection was taken at the time to the charge, nor any intiaoa- 
tion g^ven of an intention to move for a new trial; but, in die en* 
suing session, and within the time limited by the Actof Ptoliament, 
a motion was made in the Jury Court by the pursuers for a new 
trial, on the grounds of the verdict being contrary to evidence. 
Counsel were fully heard on this motion ; but, before the Court gave 
judgment, the act of Parliament came into force which merged the 
Jury Cfmrt into the Court of Session, so that the Jury Court, as a 
a^Nurate court, was no longer in existence, and no provision was 
made in the act for the disposal of the cases then in dependence. 

In this sitnatiMi it was arranged by the parties, widi the consent 
of the Court, that a bill of exceptions, which would embrace die 
pmnts of law, should be received, and, at the same time, the motion 
for a new trial, on the ground of the verdict being contrary to evi- 
dence, should be revived. 

This was accordingly done. The defenders tendered a bill of 
exceptions, which narrated the issues iand the evidence, and then 
proceeded as follows : 

^ Wfae]reiq>on the Lord Chief-Commissioner, in directing the 

< jury, told them that insurance is a contract of indemnity, and is 

* of a most sacred nature, in which the material £Eicts must be dis- 

< closed, whether the subject is a ship, a house, or a man. In all 

* of them, there is a sum paid to get indemnification in the event of 



356 



DECISIONS Ot THE 



Ifo. 9S. 



l<y Mar. 1932. 



SirW. Forbes 
and Co. c. 
Bdinburgh 
JLife Insurance 
Co. 



a Idss^ and tis the premium is in proportion to the nak, oonceai^ 
ment v'oids' the policy; but the party objecting must make out^ .to 
the satisfkctioA of the jury^ that the fact was material. His Loid-^ 
ship then directed the jury to consider the certificate of Dr Wood 
as to the questions put respecting the habits of the Ekw 1 of Mar: 
That by the paper it appeared that there was no answer g^ea to 
the questioifi, < Can you give any, and what information respect^ 

* ing his habits ?' That to the next question, < Whether actire or 

* sedentary ? Dr Wood answered, * He is active/ To the next 
question, ' Whether temperate or free?' heanswers, ^Heistem^ 

* perate/ The Lord Chief-Commissioner told the jury, that tiiey 
must consider whether the first question remained unanswezed; 
and if unanswered, whether tiiis did not amount to a waiver, ^r 
an abandonment of the inquiry as to the Earl of Mar's general 
habits : That the counsel for the defenders contended, Tliat the 
Lord Chief-Commissioner should have told tlie jury, that it was 
the province of the Court to oonstrue the certificate as a written 
instrument, and that he should not have left it to the jury to put 
a construction upon it, and that those questions were not to be 
construed separately, but diat the first question was to bercon- 
ffldered as a preface to the two last questions ; and that by answer* 
ing the two last questions, Dr W'Ood had fulfilled the object of 
the defenders in the inquiry, and answered to the whole. And 
the counsel for the defenders further contended. That even assn* 
ming that a separate general question as to habits had been in- 
tended, that the defender remaining satisfied without a speeific 
answer to the general question could not be, in law, considered 
as a waiver or abandonment of the objection to the validity of the 
insurance, arising out of their not having been made acquainted 
with a fact, material and important for them to know, in judging 
of the risk; and the said counsel contended, That the Lord Chief' 
Commissioner should have directed the jury to consider, whether 
the habit instructed by the defenders' evidence was not a hetmof 
terial to the risk, or which the insurers might reasonably consider 
as material, and that if they (the jury) were satisfied of this, 
then that the policy was void, seeing that the defenders were led 
to effect the assusance in ignorance of the hatnt; and the said 
counsel also contended, That, over and above the implied war^ 
ranty, which exists in all cases of the kinci^ the defenders were 
entitled, from the terms of the document on which the policy was 
entered into, to hold Lord Mar's life to be a sound one, and about 
which, either as regards habits or otherwise, there existed nothing 
to render an insurance on his life more than usually hazardous ; 
and t^t upon all, or one or other of these grounds, the Lord 



Ito. d2. COURT OP SESSION. 367 



« duef-CamminiOner shcKdd bare directed the jury to find a ver^ 10 Mar. leSjU 
' diet for the idefendera* Bat the Lord Chief-Commiasioiier, asthere 



< was no evidence to instruct that the assured (William Inglis) ^ q^ ^^ 

* knew of the habit of the Earl of Mar, left it to the jnry, if they Edioimrgh 

* were satisfied on the evidence on the whole case, to find a verdict q^^ Munuce 

* for the pursuers.' 

- Counsel were fully heard On this bill of exceptions and motion 
for a new trial. 

' In support of the bill of exceptions, it Was pleaded for the de* 
fenders 

I. The first misdirection in the charge r^^ards die certificate Defenders* 
from Dr Wo€k1, from which it was left to the jury to say, whether ^'*^ 
there was a waiver on the part of tiie defenders as to the habits of 
Lord Mart This is a mistake. The answer by Dr Wood is an 
answer to the whole question as to the habits of the party whose 
life was to be insured, of which the first part is introductory ; and 
the Court ought to h^ve construed the question and answer, and 
say, whether there was or was not a waiver, and notleft the con* 
ataruetion of a written instnimeirt to a jury. 
• The contract of insurance is one • in which every mliterial fistct 
must be disdoeed; concealment wiU void ,the contract. The basis 
of ihis; insurance was, that the life was a good life, and that, the 
party was not subject to any disease or peculiar habits tending' to 
impair health t>r to shorten life. The habit to which Lord Mar was 
addicted was a most important fact; but it* was CMioealed from the 
defenders, and therefore there was a fiiilure of the wananty.upon 
which the contract rested, which puts an end to the contract. There 
was no Waiver on the part of <the company as to the habits ; that 
question is distuictly put ; it is answered by Mr Weir, who in his 
answer circumflexed the whole questions as to habits ; and although 
Dr Wood did not do this, his answer to the questions as to his being 
sedentary or active, temperate or free, must be held as an answer 
to the introductory question, * Whether he could give any, ot 
' what, information as to his habits.' , 

II. The next misdirection in the charge was in the statement 
that there was no evidence of Mr Inglis being in the knowledge <of 
Lord Mftf^s habits. Mr Inglis was his Lordship's confidential agent 
-^was frequently with him after he came last to Scotland, and it is 
impossible he could be ignorant of this habit, and, from part of the 
evidence, it would appear be must have known it 

III. But the jury in law ought to have been directed, that if the . 
•statements made to the office were fiilse, it was of no consequence 



968 DECISIONS OF THB No. 90. 

10 Mar. idftSL Whether Mr InglU was in the kn^wled^ of that' or not If the 

^«^y^^ stetements weiro not trne^ then tho oontimct wm different fraai that 

^d c^.^T^ contemplated, and the office was induced to take a different ride 

Edinburgh from the risk they meant to take, the consequences of which must 

me iMurance ^jj ^^ ^^^ ^^^^ through whom, and for whom, these statenetits 

were made, llie contract was one of ordinary risk, and for which 

Pkwk^"*' the ordinary ppemium was payable ; but 1^ fitet wfaieh was con- 
cealed made it a hazardous insurance, if, indeed, with such a habit, 
the life was insurable at alL If the subject to be insured is not 
issumble, or is a more hi^aidous risk than the terms in whieh the 
contract was entered into contemplated, then the contract is at an 
cfnd, whether the fact was known to the party insuring or not This 
is the principle laid down In the Englkh authorities ; Marsbett mi* 
Inmtmmej 153, 157, and cases therein quoted. Although these ner 
not eases of life insuranee, yet the same general rules a|^ly to life 
assurance as to Sea and other insuianees; Path en Imuraiksef MS;: 
BiarshaUy p. 788. 

A misrepresentatiim as to any materia iaet whldi was necesnry 
to be eommunieated, to enable the underwriten to form a just es-' 
timate of the risk, whatever may be the fenn of using it by the in*** 
sured or his agent, if it have die effeet of imposing upon or mis- 
leading Ae underwriters, will be fiital to the oontvaot; MahkaU^ 
440. It is of no ccmsequence whether the misrepresratation be by 
the party or his agent, or proceed from "fraud, mistake or n^gli* 
gence, because the insurer is led into an errcN*, and oaleulstes his 
risk upon fidse grounds ; Marskall^ 456. It is father now deei' 
ded by more reeeitt dedirions io England, that the parly Or parties 
referred to for information is, in giving that information, the agent 
of the insured, who is bound by the representations of sudi agent ; 
Maynard v. Rhodes, 8 Nov. 1884, Doititrng and Bybnufs Bep. v; 
866; Everett v. Desborough, 87 May 1819, Bitiffhanfs Sep. v. 
60S. 

' Lord Mar in this ease was Mr Inglis^ agent, and the conoeebnent 
by the agent is the ocmcealm^at of die principal, whether he was 
in the knowledge of it or not Lord Mar knew the haint to whidi 
he himself was addicted, imd he misled the company by referring 
to Dr Wood, who did not attend him as a medical man, and not 
referring to Dr Abercrombie, who did attend his Lordship, and was 
aware of and would have stated this habit, as bebg one whidi he 
considered material for the Insurance Conqpany to know. 

IV. The verdict was contrary to evidence. The evid«ice of 
all the witnesses for the defender cleariy proved, that Lord Mar 
had been in die pracdoe of taking very large quantities of opinih 



and Cottf. 
Ediobvirgb 
Li£» iDuirmiicf 
Co. 



Pami«r»* 
PleM. 



Na 99. COURT OF SESSION. 3S9 

and laadanmn for seyeral years ; and die opbion of themefical men 10 Mar. leaa 
in general was to tiie effeet tibat ibia pncdee was iiQurieua to 
healtb. .^.^! 

A n no ered for tkepumiera--* 

Hie basis of the contract was the proposak for insuranoe^ in which 
it is not alleged diat there waa any misrepresentation or conceal- 
ment The contmct wies» that Lord Mar should make certain an* 
9wers and certain referenees, which he did. The qnestions put to 
the medical men were put by the company, not by Mr Inglia. 
They took the responsibility of the questions on tbemselvee. Dr 
Wood told them that he did.not attend Lofd Mar professionally^ 
and the company wene satisfied ; they were all private interrogato- 
ries, not fovming the basis of the contract There is no mtsrepre* 
sentaAion allied, but only ooneeahnent There is a diflferenoe be-^ 
tureen the concealment ef a disease, and the concealment of a habit, 
the effect of which may not be known. This distinction is ackaow'^ 
le<^f^ in the EttgHsh oases; Erevett v. Desborough, ante; Liu"* 
deran v. Desborongh, Bant. andCrei. Etparti, viiL 586; MorrisoQ 
9. Miffspratt, Bniff. iv. 603 ; Maynavd v, Rhodes, Lhwlin^g Rep. 
V. 266. 

There was ne misdirection as te waiver. It was not the duty of 
the Court to construe the answers of Dr Wood. The questions were 
piit by die Insurance Company in writing, aqd they got their an- 
ewers in writing. There is no difference between written and ver* 
bal answers ; and if Dr Wood had answered these questions yerbal* 
ly before ihe jury , itwasthedutyof the jury, and net the Court, to 
eenstrue them. 

11. The yer^Kct was net contrary te evidence. The Conrt and 
jury might entertain different views of the evidence, but it was the 
proviilce of tiie jury to decide. The disease of which Lord Mar 
died was jaundice. None of the witnesses say ke died of the ha-t 
bit ef opium taking. It is proved by the medical men, that if he 
had taken 3^ oz. a-day, it would have been visible ; but none of 
the witnesses ever saw him in a state of intoxication or stupe&ction. 
His mind was entire, his habits active, altiiough latterly depressed 
fr^m die state of hb aftdrs ; and it is further proved, tiiat he used 
laudmium externally for rheumatism, while there is no evidence 
that he took intemaUy the quantity he is alleged to have been fur- 
nished with. 

There is no ground, tiierefore, for a new trial; Gnmt cu New 
Ttial^ 170 ; Carstsirs v. Stein, Maude and Selwyfts Rep. iv. 192 ; 
Campden v. Foley, 1 Biaclu 418 ; l£afAm^, $ Termhf Rep. 435. 



360 DECISIONS OF THE No. 92. 

10 Mar. 1S38. On actvising these pleadings-^ 

^^*N^^ The Lord Chief'Commissioneri said-^That the opinion which I 
and Co. v, ^^^ formed on this case may be understood, I must call the^attan 
Edinburgh tion of your Lordships to the manner in which it has come before 
Q^ naurance ^j^^ Court in its present shape. It wasitried on^'gaheraltiasnein 

,*- these words i 

Courir °^ * Whether the defenders are indebted and restli^ owiiq^ toc^the 

^ pursuers in the sum of L.3000 contained in the policy.' 

• The policy, asyour Lordship knows, *wa8:on the. life of the late 
Earl of Mar. 

It is material, in considering the bill of exceptions, to bear iil 
mind that the case was tried under the general, issue. 

• The history of the case is shortly *this; After a trial in - March 
1830, which occupied twelye or fourteen hours, the jury found a 
verdict for the pursuers. There was no exception taken to my di- 
rection in point of law, nor any intimation at that time of moving 
for a new trial ; but in the following session of the Court, -within 
the regular time, a new trial was moved for, founded^both jonitfae 
ground of misdirection by the Judge in matter of ^law^ and:<»Tthe 
ground of the verdict being contrary to evidence* The misdireo- 
tion of the Judge then contended for was the same with that^which 
has found its way into the first branch of the present bill of except 
tions. 

The case went on, and the arguments for the new trial were not 
concluded till the 5th or 6th of July 1880. Lord Mackensde sat 
with me) and heard the arg^uments for the new trial ; and the matter 
being so various and important, we took time to consider, ■ and had 
several conversations on the subject I looked very, minutely into 
the cases, and re-examined very carefully the doctrine which I laid 
down at the trial, and I have no hesitation in saying, that. I then 
began to entertain doubts of that doctrine. This is not material in 
so far as it refers to myself; but, as it may bear upon any future 
proceedings in the many cases which may be brought forward as to 
insurances on the same life, it is material. 

Lord Mackenzie and I found it impossible to deliver the opinion 
of the Court before the 10th of July, when the session closed ; and 
whe^ the winter session began, we found it out of our power^ £Mr 
the Jury Court had in the meantime been abolished, without. any 
provision in the act of Parliament to enable it to conclude the de» 
pending causes. In this situation a number of difficulties occurred^ 
which led finally to the case i^pearlng here in its present shape. 
- It appeared to me, that the only certain way of settling all tbe 
points which the case embracedf was for the parties to agree to have 
a bill of exceptions so framed as to settle all matters of law, and at 



No. 98. COURT OF SESSION. 361 

the same time to revive the motion for the new trial oh the verdict 10 Mar. 1892. 
beinff contrary toevidenee. It ivas material to have the bill of ex- ^^V^^ 

• Sir W ITnrhjJi 

ceptions^ because I thought that there were reasonable grounds to g^^ ^^ ^ 
suppose that I was wrong in the legal doctrine which I laid down Edinburgh 
at the trial, in respect to what was called the wmver or abandon- q^^ nsuranc* 

ment of inquiry into certain habits of the Earl of Mar, which had -^ 

not been disclosed to the insurers. The doubts which I began to eourtT" ^^ 

entertain were first suggested to my mind, by an) attentive perusal 

of the case on a policy on the life of Sir James Ross, which was 

tried by Lord Mansfield in 1780. In that case Lord Mansfield 

lays down distinctly all the law which I shall think it necessary to 

re£er to in the consideration of the case before us, without going 

into the detail of the subsequent cases which, have. been referred to 

at^ the -bar. 

The case of Sir James Ross embraces, the question of non-dis- 
closure or concealment It appears from that case, that full disclo- 
sure of all that is known to the party making the insurance is a 
duty, but that if the assured and assurers are both equally ignorant, 
that the assurers must stand.the risk; and I am not aware, that 
either in principle, or by any decided case,, that doctrine has been 
shaken. This was very important in considering the* question* of 
misdirection as it affected the motion for a: new triaL * It did not 
appear at the trial that Mr.Inglis, the assured, was in the know- 
ledge of the fiict of the Earl of Mar^s. taking laudajCinm: to. excess, 
which, was the concealed habit on which- the insurers refused to 
pay the sum insured. I considered it to be most material that 
this should be brought into the view of your Lordships in deliver- 
ing judgment upon the new trial in this case, because, if a new trial 
had been g^ranted on my misdirection, oft the ground of waiver or 
abandonment of inquiry into the habits of Lord Mar, that ground 
woiildhave been rebutted by the &ct of Mr Inglis' ignorance ; and 
as he was not proved to have been in the knowledge of the fact^ 
the granting of a new trial would have been abortive, as. his igno- 
rance relieved him jfrom the effect of non-Klisdosure, and kept the 
insurers liable under the policy. Now all. tUs is cured by the bill 
of exceptions. 

When I signified my readiness: to have the bill, of exceptions by 
agreement of parties, I intimated that I should sign any bill which 
excepted to what I was conscious of having stated at the trial as di-* 
iceiction in matter of law, and of course to sign whatever law I had 
omitted to state, and which ought to have been stated. 

Having said this, I shall begin by making a few observations on 
the form of bills of exceptions. It has been correctly said at the 
bar, that I have lately been in correspondence as to billa of excep- 



fles DECISIONS OF THE No. 92. 

10 Mar. I83£. tions witb the highest English authorities, the Lord Chief-Justice 

^-^T^' of the King's Bench, Baron Bayley, and other Judges, 
fid G^.^!*** Lord Kldon had laid it down in the second appeal in Lord Fife's 
Edinburgh case, and desired it to be pardcularly attended to, that the party 
^e nsumn ^^^ excepts should state the grounds of law that lie contended for. 

From that time it Was the constant habit of the Jury Court to re- 

CouTtT' ^ quire the party who except to slate their views of the law* It be«- 
came doubtful how bt this was proper or necessary, and the oor« 
respondence to which I have alluded tihen commenced. The result 
of that correspondence has been (with the dppiobatibn of Lord El- 
don) the adoption of the opinion of Lotd Tenterden, Uiat it was 
better to leave parties to their own discretion, and to allow them 
to state, or not to state, their views of the law, according as they 
should judge most expedient It was apprehended that there might 
be some cases which required the law, as contended for by the parties, 
to be fully stated, and on the other hand, there might be cases 
where it woiild be better simply to state the law excepted to, and 
that there could be little difficulty in the Court with a bill of except 
tidns drawn in eilJier form ; and in conformity to this, the present 
bill has been drawn. It partly coincides with the previous .practice, 
and pwtly does not ; and I think it right to announce to the gentle- 
men of the bar, that in future, parties are to be at liberty to exer- 
dse their discretion, either in stating the law as contavided far by 
themselves, or m not stating it* 

Having made these few preliminary observationB, I now come to 
the merite of the case» 

This bill contains tiiree brandies ; fint, an exceptim lo the btW 
v^ich I laid down at the trial respecting the ivaiver or abandonment 
'of -die inquiry into Lord Mar^ habits ; the secend relates to the 
warranty, not implied, but express ; the third excepts to the state- 
laent as to the materiality of Mr Inglis' ignorance of the faet 
of die habit. 

Now, as to the j&k of these, cousel have not only objected to the 
directioii given, bat thiey have also slated the law oohtended fer by 
them* As to the vaomitf, .they say thai I ought to have directed tlM 
jury, as there was an express warranty, to find a verdict for the de* 
f^decs. And od the Mrd point, they merely say that t did 
wrong, because I ashamed the maleriaiity of Mr InglUi' knowledge 
as to the feet, and directed the jury to find for the pursuers, In- 
^[lis' knowledge or ignorance being rendered immaterial by the 
question that ari^les on the warranty. 

On VbBjInt^pmtA, which relates to the direction which. I gave at 
the trial respecting t^e question of waiver, I shaU be very short 
When a Judge makes up his mind at the trial, more especially 



No. ©2. COURT OF SESSION. 363 

where it has lasted for many hours^ and is obliged on tlie instant iO Hw. (832. 
to address the jury» if his opinion in matter of law is objected to, .^^V^"^ 
he is bonnd to reconsider it with great care. The effect of a change ^^^ co. v. 
of opinion is likely to give a dangerous tendency to the other side, £<iiDburgh 
such is the structure of the human mind ; against this tendency I co. °* 



have endeavoured to fortify myself to the utmost I have exa- .-; 

mined this case with very great anxiety. I may say I have de» c^urir' 
voted my mind to it both by day and night ; and the result of my 
deliberations and my examination of the decided cases is^ that I 
was mistaken in the law I laid down at the (riaL I do not think 
that the law stated by the counsel in the bill of exceptions is cor- 
rect ; and as this case may go farther, and as in the last resort it is 
material that the grounds of judgment should be known, it becomes 
me to observe in what respect I consider the opinion I gare at the 
trial to have been erroneous. 

I stated to the jury that they were to consider whether, because 
Dr Wood did not answer the first question as to the habits of 
Lord Mar, this was not to be held as an abandonment or waiver 
of the inquiry as to such habits ; and if abandoned, whether they, 
the Insurance Company, could now set up the. habits against the 
payment of this insurance. 

Now it is stated, that I ought to have construed the instrument^ 
and that I did not construe it, but^teft it, contrary to law, to th^ 
jury to construe. Now, I codd not let the case go to the jury 
without having construed the instrumeni;; and being sitti^ed that 
the three questions were separate afid that the two particular qnes^ 
tions that followed, were not a repetition or expodtion of the same 
question, I thought that they were all separate questiims, and I 
think so still ; and I think 1 am fortified in this, tot it coincides 
with the opinion of Lord Lyndhurst^ In the case which has been 
cited by the defenders. I am also fortified in it by the case as 
stated in the defences by the defenders themselves, hook at the 
pleas in law. The defenders state the question as to the habits not 
being disdo6ed as the ground of their resistance to pay. Now, 
the two questions as to his being < active or sedentary, temperate or 
< firee,^ were answered, and the pleas in law could have no reference 
except to the first general question. What I say ought to hiri^e 
been the law stated by the defenders is this, that an implied aban^ 
donment or waiver does not relieve fiht>m a distind and conscientious 
obligation to disclose every thing material, that the lai^ enforces 
the performance of such obligations as are binding on the conscience, 
and that such obligations are more especially enforced in contracts 
of insurance. Now this I conceive is the correct law ; and on a 
most deliberatie review of all the cases and principles, this, I now 



364 DECISIONS OF. THE No, 92. 

10 Mir. 1892. think, is the law which I ought to have laid down at the trial. If 

s^rs/^^ the case therefore turned solely on the question, bow £Eir I mistook 

Sir w. Forbes the nature and construction of the instrument and the oblie:ations 

and V* V. ••/• 't iii»»« it it 

Edinburgh arising trom It, I am now clearly of opinion that I ought to have 
Lifelosatancedijected in the above terms. And tliis is of extreme importance, 

' because it is evident that the doctrine, as laid down by me at the 

G^nion of .trial, had great weight with the jury in forming their verdict. 

AU this matter is to be got in Lord Mansfield's summing up in 
the case of Sir James Ross. . He lays down the doctrine of the ne- 
.cessity of fairness, suid the effects of disclosure and non-disclosure ; 
and the more you, examine it, the more apparent it is that that case 
comprises every thing of importance. Suppose, then, that the pre- 
sent case had been left in the position in which it stood under the 
jdirection I gave at the trial being erroneous, if this were the ques- 
tion for the new trial only, and not the question on the bill of ex- 
ceptions, I should say, on the ground of misdirection in law, that 
the new trjal ought to be granted. But, in ; considering the 
effect to be given to this part of the bill of excepdons, we must also 
keep in view the situation of Mr Inglis. Now, if Mr IngUs was 
ignojant of the habit, (and the evidence did not prove that he was 
acquainted with the habit of Lord Mar,) that would have counter- 
balanced the. effect of my misdirection ; and so granting, the new 
trial would have been abortive. . On this point there does not.apr 
pearto be any evidence tending to instruct that Inglis was iiiform-;> 
ed. If that be so, I think the .verdict of the jury (bad no other 
question been raised by the bill of exceptions) must have been 
against the party who excepted. But the case takes a very diffe- 
irent shape, in my mind, when I cpme to consider the second excep- 
tion, which relates to the warranty. .This exception, cost me a con- 
jsiderable degree of, I will not say trouble, but of care and attention, 
m order to see how it was brought forward; for, at the trial, 
there was nothiiig whatever agitated, but the conceahnent or mis- 
representation as to, the habit. The whole question pn both sides 
turned on that, and almost all the law. turned on it; and if any 
thing eke turned upon it, it escaped me at the time, and it escapes 
me now ; but it makes no difference in regard to the result. It 
comes exactly (o the same result, according to the opinion I am 
about to give. 

. I have examined the proceedings, and I have stated that this is 
a general issue, which embraces every question that can arise in 
this case. . In the case of all policies, whether op lives, houses or 
ships, the great load of the case generally rests on the defender^ 
and the general issue tak^s in all his grounds of .defence, lo an 
^^rance on ships, it takes in^the question of sea vy^orthiness-r-naC 



Bid. 9a. COURT OF SESSION. SM 

depMrtin^ widi oonvo/^-Hteviation from the voyage, and so on ; and lo Mar. 189f . 
ao in life insuraaoea, the general issne admits all grounds of de* ^^ " ^ v *^^ 
fimce, nnlesa they should be matter of surprise, by being unnoticed f^^^"''*** 
in the previous pleadings. Now, I find in the defences, the first Edinburgb 
paper put in, the defenders set forth, almost ipsisdmis verbis the ^ in«uraiic« 

preeike objeedoh that is taken in the shape of exception, under the 

head of warranty. They slate in the defence, that the life insured ^^^ ^ 
was not a sound one, — that it was more than ordinarily hazavdous 
to insure it,*-*that there was diseaae tending to shorten life. Now, 
Aeae are the heads that are incorpomted in the second exception^ 
in which it is stated, that as this was a warranty arising dat of the 
documents, it must be considered as a case where it was necessary 
to prove the warranty completely ; and the judge should have told 
the jury, that if they were satisfied that the warranty was not made 
out, th^ should find for the defenders. 

This leads to the oonsideration of two questions, the one a ques-* 
tion of law, the other of &ct With regard to the question of Uiw, 
it is to be derived from the case to which I have alluded, — ^the case 
of iKr James Ross. Ldrd Mansfield lays down the distinctbn be- 
tween warranty and fifaud ; and with regard to warranty, he says^* 
if litigated, it must be proved, so that a warranty supersedes all 
other questions. Accordingly, it annihilates the question that re- 
lates to Mr Inglis' ignorance or knowledge. It renders it unne-* 
oessary to enter into that question. His ignorance is of no conse- 
quence, — he must make good his warranty. 
- The next question is one of fact, and it is divided into thre^ 
parts. 

. The first branch relates to the papers signed by the EbitI of Mar, 
in which he declares that he is then in perfect health, and that hb 
health is generally good. This is a declaration of the state of his 
health ; and in that declaration by Lord Mar, Mr Inglis indorses 
on the back of it his proposal to the company, and the insurance' 
is made ; and the terms of it are, that if what is contained ia the 
preceding paper is not true, the policy is void, (and the assured 
must prove its truth). Here then Mr Inglis confirms the terms of 
dmt warranty. 

But then there come the answers of Dr George Wood and 
Mr Weir, and they are subsequent These are, that there was 
no disease in the Earl of Mar tending to shorten life, or to render 
insurance more than ordinarily hazardous. These likewise are de« 
elarations of warranty. It may be said that they affect Mr Inglis 
on the one hand, because they are pars ejusdem negotii ; and on 
die other hand, that they do not affect Mr Inglis, because they were 
not made with his knowledge or sanction, or by his desire. Lord 

VOL. VII. 2 b 



see DECISIONS of thr na 9*. 

iOMar. 1839. Lyndliurst directs the answers in the case of Dnckett to be laikeik 
. ^'^V^ by the jury into their consideration. The presumption thetvfore 

atid Co. v! ^^) ^^ ^^^ ^ ^^ <^^^ ^^ discovered, that he thought them pars ftjus* 

Edinburgh Life dem negotii. But the solution of this question, as to whether Mr 
'^^^ °' Inglis was cognisant of these answers of Dr Wood or not, doel tact 

Opinion o£ seem to be material at present ; because, if I am right, and if the 
^"'^ Court agrees with me in opinibn, that in tliis part of the MU of 

exceptions there must be a judgment in favour of the bill, it then 
follows as a necessary consequence, that if it goes down to trial» die 
fret of Mr Inglis' knowledge or ignorance will be inquired into; 
but, hi any rate^ I am conscious that I summed up nothing: to the 
jury on the head of warranty ; and the omission of a judge in ilrt 
bridging the attention of the jury to an important pmnt of law, h 
as much a ground for a bill of exceptions, as stating law which Ift 
erroneous. If any of your Lordships will take the trouble of look>« 
ing into Lord Eldon's able speech in Lord Fife^s £rst trial, yoU 
will find what a judge must do, and that hfa faults of omission ar« 
as much subjects of exception as those of commission. 

N0W7 what I suppose is Contended for here (and what I admit 
was the duty of the judge) is, that the jury should have been tdd, 
that in the case of Lord Mar there is a warranty of perfect health, 
and general good health ; and Mr Inglis' proposal proceeds upon 
the truth of that statement* I might then have gone on td say^ 
there are likewise warranties contained in the answers of Dr Wood 
and Mr Weir. They may not apply to Mr Inglis ; but if X had 
said they did not apply to him, it would have been putting a con- 
struction on the instrument, which would have been the subject^ 
matter of a bill of exceptions. But, at any rate, it goes to trial 
again if the exception is allowed ; and it will be seen then, in point 
of fact^ whether Mr Inglis was cognisant of Dr Wood and Mr 
Weir^s^ answers or not. In case he was cognisant, there is theit 
only one head of warranty, — the warranty of health. 

Now, we come to the evidence. The evidence almost turns en* 
tirely on ^e subject of the habit, and of the dangerous nature of 
the extent of the habit ; and the reasoning is also all on the babit» 
The question to be put to the jury is, whether the taking of opium 
tcdces away the representation of perfect health. The law of war* 
ranty must be laid down. It must be laid down and applied to the 
esse ; aiid then it must be left to the jury to decide,, whether they 
think this warranty fulfilled or not. That was not done, and ther^ 
fore there was error. With regard to those questions that felL un« 
der Dr Wood's answer, they come more home as applicable to. the 
subject-matter of the habit ^ Whether he knew any reason why 
*. an .insurance on Lord Mar's: life would be more than, usually: 



)r0t $* COURT OF session: 367 

^-faazardoiiS)^ is a question more extensive, and gives greater la* 10 M«r. iBSS; 
titttde for ike consideration of the iury with Tescard to their find-* ^••y^^ 
ing. But, at all eyents, it is clear in my mind, that to try this fnd Co.^ 
case well it ought to be tried in this way ; and on the subject of Edinbuish 
warraaty, it is dear that it absorbed the pther two points, and ^ i«mw»»»c« 
leaves the question for the jury on the warranty alone. TT"^ 

, With regard to the motion for a new trial, on the ground of the gP;^^» «^ 
verdict being contrary to evidence, which is all that I presume now. 
remains behind, I shall be short I always think it advisable, that 
when a new trial is applied for, on the head of the verdict being 
agai^t levidence, that the Court, in stating their grounds in sending it 
to a new trial, should do it with as much caution as possible, and that 
ihey should be as careful as possible in giving an opinion as to the 
efieet of the evidence ; because, if a strong opinion is expressed by 
th^ Court, the case goes down with mor^ or less disadvantage to a 
second trials which is often injurious to the fair decision of the case, 
which ought by all means to be sent down to the jury as pure as 
posisibIe» In this case such risk may be avoided, as it must go to 
another trial on the nusdirection. As I have observed that what 
I «aid at the trial was a misdirection, I am bound in justice to adfl^ 
that it is my clear impression, that what I said on the waiver of the 
habit had great weight in causing the verdict; for the jury, a yery 
respectable one, retired, and in a very short time found for the pur^ 
soers, their consciences being satisfied that the waiver was a good 
ground for their verdict. Accordingly, they did not take sufficient 
time to examine into the evidence. In fact, it. was a verdict with** 
out due consideration of the evidence. Under all these ,circum«>' 
stances, my opinion is, that the bill of exceptions ought to be.al- 
loWed, and that the rule for a new trial should be made absolute*. 

Ziord Balgray said — That the Liord Chief-Commissioner had ex-* 
phiined most distinctly the grounds on which he wished the bill to 
be allowed, and the new trial to be granted, and fully coincided 
idth bis Lordship. 
* Jjord Craigie concurred. 

Lord Gillies said he was of the same opinion with the Lord Chief-^ 
Commissioner* But he vras also clearly of opinion that the new 
trial should be granted, on the ground that the verdict was against 
evidence. He aiMed, that if their Lordships allowed the bill, that 
judgment could be appealed firom, and if they granted a new trial, 
as in the case of a verdict being contrary to evidence, that judgment 
could not be appealed from ; and perhaps, therefore, some arrange-i 
ment should be made between the parties. 

- The Lord President*— The £arl of Mar's statement is not only 
an express wananty, but it con^ns an un&ir representation. | 



396- DECISIONS OF THE i^. M. 

I0tf«r* IBS$. tkmk diat he*did not act -as be ought to have done in (ainieasy by 
^-^ y""^^ referrinir to Dr Wood. Under all the cbcumstances wUefa liad 
and Co. v. U^en place, the fair answer which Lcurd Mar oaght to have made, in 
EdiniMirgii reference to a medical man to ateertain hia present and geneffd 
^ ^"^'^^^ health, was, that he had been in England for tome years, and had bO 
medical attendant in Scodand, but that he had occarion to consult Di^ 



Court Abercrombie. In fidmess he ought to have mad^ tiiis disclosure* 

Dr Wood knew little -more than Mr Weir — it was a farce to refer 
to him as a medical man* 

In regard to the knowledge of Mr In^^is as to his Lordship^ft 
habits, that is done away with now attogether, by holding that he 
was bound to know what Lord Mar knew. Take the case of a 
ship t it may be lost when I am making the insurance. This may 
be considered as a hardship, but it is cured in England, by putting 
into the policy the words, < lost or not lost.' It is not so abroad, 
however. In most foreign countries no such words are in use, 
because they hold, that when both parties are necessarily ignorant 
die insurer runs the risk. I insure a ship fraoi Newfoundland to 
Lisbon. I receive intelligence that she was to sail on such a time, 
but it turns out that she has been lost three weeks before. That 
is nothing to the purpose ; the insurer must suffer the loss. On the 
other hand, it may happen that, by a qnidc passage, the ship has 
arrived in time. That makes no difference ; the insurer retains the 
premium. In the same manner, if I were to insure the life of a 
person in India, upon the receipt of a letter from a mutual friend^ 
stating that he was in good health when he wrote,' it may aftM> 
wards turn out, that the man was dead before the insoranoe w^ 
effected. But that would be nothing to the purpose ; the risk is 
run. In such a case, where the ignoiaiioe was positive, and wA^ 
out any blame in either of the parties, the insurer runs the risk. 
But that is not the case here. Lord Mar is examined, he makes 
these answjers, and Mr Inglis knew the answers^ Under these 
circumstances, a bill of exceptions ought to be allowed | andia 
regard to a new trial, I suspect that -tiie jury*- have paid* very 
little attention to the evidence, in consequence of. the directioii 
that there had been a waiver or abandonment of- the inquiry. It 
was a verdict given without evidence at all. ^ 



r* 



The Dean of Faculty, in reference to what fell from Lord.Giti 
lies, suggested, that their Lordships should aUow the judgment t^ 
stand over till the following day. ? 

When the ease was resumed the next day, iadffment was sim*^ 
ply asked both on the bill of exceptions and on the. motion f<»< a 



No. a^ COURT or sfission aet 



tMt «mI the Caart aceordiogly praMmiieed die ioOowmg tOMw.4839* 
InterloeHlon: * The Lorda. having heard coaniel for the partba in .^^^V^^ 
« mppett of 1U4 UU'ef ezeeptionB, and ia ntpport of the verdict of ^^^^^ 
^ llie 1107, sustain dm bill of ejweptioB% set aiide the refdict, and Edinburgh 

, . J* t • .%• f Life InturADOt 

^ gnoit a new trial m tub eauae^' Co. 



* The Loida having heard oonnsel in rapport, of this motion far ^^ 
^ a n^w triaV and alto in anpport of die verdiet» aet aside the ver- J"*™**- 

* diet, and grant a new trial in this case ; reaenring coosidwalion of 

* the point of expenses till the final setdement of the caose^' 

dtnom, W. 8. A^nts. Alt. Z>«oi qf JP«c (Bop9,J D. M*NaB. J. Ty 

Miuna^f W. S. Agent. 

T. ' 



SECOND DIVISION. 

•No. XCIIt. 10 March 1882. 

WILLIAM PAUL 

affainst 

The BRITISH COMMERCIAL INSURANCE CO. 

Proof.— -Jt^RY Trial. — A eommiman far a second examinatiM of 
a wttKO^ voWi a view to ajtay trials grantedj but the report ordered 
io he sealed t^toKein retenOsy it heing hdd competent to the oppo^ 
site party ecfierwards to state any valid ohfection to Ae eoidenee thus 
obtained^ •, 

in an aedon at thehistance of the tmsibe cin die s^nestrated* mI 
Wte of the late Wflliam Inglis f^ainst die British Cmunercial In- 
stirance Company, for payment of a snm insured on the Mfe of die 
kte Earl of Mar, a commiiBion was obtuned by the defendeii to 
dzamine, as a witness. Lady Fhmces Jemima Erskine or Goodeve^ 
the EarPs danghter, who was rcfrident in England. Her ladyship 
was accordingly examined, and answered aU the intem^tories put 
to her ; but Iiavin|^ deponed merely as to her belief in regard to a 
particular date, teforred to in- two of these quesdons, (Odi and 
24th,) which was important, and die defenders being afterwards in- 
formed that she could with certainty speak to the precise period, from 
a wridng which she had recentlyfbuiid, but wlddi ^e cauld ao^pait 
with, applied to the Court for a commission to re-examine her lady- 



«7a DECISIONS OF THK N«. 9t. 

10 Mar. 1832. fel^p upon thk Specific matter. Their Lordships doubtiag, upon 'ge* 

^"^y^^ neral grounds, the competency of the motion, and also considering^ 

^mmerd!u"^ that the point ought to be authoritatively settled, consulted the 

Inturaocc Co. Other Judges, who were of opinion, that while the granting of libe 

second commission was not in itself incompetent, it would still re* 

main a matter for after omsideration, whether the additional exai* 

mination ought, under all itt dreumstances, to be laid before a jury, 

as evidence in the cause* 

JodgmeDt. 1^® Cmirt, in accordance with this opinion, < r^iew the commi»- 

' sion for examination of Lady Frances Jemima Goodeve, in refe* 
* rence to lier answers to the sixth and twenty-fourth intent^ato* 
> ries formerly put to her, which examination is to proceed on in- 
^ terrogatories and cross interrogatories to be adjusted before the 
■ derk, and the report of the said commission to be sealed up to lie 
< in retentis.' 

For the Punuer, BtHhir/ird, IngVi f( Dmdd, W. & Agcnti. For the Defender^ 
D. M'NVU. J. T. Mwmy, W. & Agent 

S. 



SECOND DIVISION. 

' No. XCIV. 10 Manh 1882. r 

JAMES WATSON and Others 

offaintt 
The commissioners or POLICE of GLASOOW. 

Public Officer,— Process, — StnuM art APFLicATjaK. — ^L -4 

. police statute h/caring promded^ that no Tegubtion which ike Commie^ 

turners were empowered to. make should be valid tiU confirmed by the. 

. Magistrates and Town^Council^ nor any h/C'law tiUpubUshed m /^ 

' newspapers of the ofy, and the Commissioners having noted by bal^ 

' lot at the election of the Superintendent ofPoUce^ in virtue of a ge^ 

. neral resolution introducing this mode of voting, contrary to former 

practiecj — the Court grajUed interdict against iho induction of the 

party thus elected, in respect, 1st, that ihe above resokition wajf 

. not confirmed or published as the statute directs, and, Sdly^ that po^ 

' 'ting by ballot was HhgaL 

il^^A suspension and interdict hdd a .competent process Jar trying^ 



»a. m; court op session; art 

' A/BvoKdity of such eUcHon^ the party not being in possession of the \o Mar, isai^ 

Watson and • 

The Board of General Commissioners mider the police act for the „|„lonerft ^'^ 
^ty of Glasgow, 47 Geo, III. c» 29, appoint the Master or Super* Police of 
inlendent of Police, as well as all the other officers and servants of *^^** ' 
theje^tabUshment. The act provides, that the individual authorised 
to preside at the meetings of this Board < shall have both a delibe<* 

< ratite'and casting vote, in cases of equality, in all matters and ques- 
^tions which shall come before them/ The General Commission- 
ers* are empowered by the statute < to make^ ordain or establish 

< orders^ rules and regulations for the direction and government o£ 
^ the whole servants belonging to the establishment, appointed as. 

< aforesaid ; as also to make, establish and ordain bye-laws, for the 
^better executing this act, particularly as to erecting sheds, and 
\ laying down building materials on the streets, and for removing 

< obstructions and encumbrances, and preventing nuisances and an-» 

* noyances on the said streets, ot on the foot pavements, or othet 
^ placed within the said city ; and also, from time to time, as occa- 

< sion may require^ to repeal, add to, and amend or alter such rules^ 

< orders and bye*laws as to them shall seem necessary and expe- 
^ dient, and to enforce the same by pecuniary penalties, not exceed*-^ 

< ing in any case the sum of L.5 sterling, to be levied and ap- 

< plied ia manner herein directed ; Provided always, that none of 

* the said orders, rules and regulations shall become valid, or take 
f eifect, till they be ratified and confirmed by the Magistrates And 

< ToWn-Council of the said city, in council assembled, nor the said 

* bye^laws, tilLth^y be published in two or more of the newspapers- 
^ of the said city ; and the said Magistrates, and other General 

< Commissioners, are hereby directed to cause the said orders, rules,. 
^ regulations and bye-laws, to be printed and affixed on conspicuous 
f places in the police-offices and watch-houses, and such other parts 

* of the said city as to the said Magistrates and other General Com* 

< missioners shall seem proper, for publishing the same, and to cause 
^ such prints to be renewed from time to time, when torn down, ob- 

* literated or defaced ; and provided also, that no such regulations 

* or bye-laws shall be repugnant to the laws of Scotland, or to any 

< thing contained in this act.' 

. At a meeting of the Commissioners, held 21 July 1831, it was 
resolved) contrary to the former practice, that the vote at the eleor 
tion te offices should in future be by ballot, ^ the casting vote of 

< the chairman, in case of an equality of votes, being always xeserr 
^vedto him*' 

This regulation or bye-law, though never ratified or published is^ 



S71 DECISIONS OF THE Mc 9C 

M Mar. Test. ^^ manner required by the above enactnient» leae followed in the 

Vi^y^w^ election of a surgeon to the establishment, and some time afterwards 

^tson and ©f ^ superintendent For the latter office there were several can- 

mittiooera of didatos ; but the final ballot was taken for Mems Wat8<m and 

Police of Denovan only; and the votes, as counted by the chairman, beki|^ 

^^^* equally divided, he proceeded to give a casting vote for the latter 

candidate, who accordingly was declared to be duly elected^ and 

the clerk was directed to inform him of the result 

A few days after this election, Mr Watson and several Con* 
missioners and others presented a bill of suspension and interdict 
against the induction of Mr Denovan into the office of Si^>erintei!i« 
dent^ and the ezerdse of its functions by him, until it should be m^ 
eertained^ by competent authority, that he had been validly elected 
thereto. Tie grounds of the application were, L That the eiee^ 
tion by ballot was illegal, in as much as this mode of ascertaimog 
the vote was contrary to former practice, to the act of Parliament, 
and to the common law of the land. 

The complainers maintained, that the vote by ballot was at va« 
riance with different provisions of the statute, and particukriy with 
the enactment which gives the chairman both a deliberative and 
casting vote in cases of equality, such casting vote being contrary 
to the very nature of secret voting. Farther, one of the prindjpal 
tads of the popular election of the Commissioners would be defeat- 
ed by this form of proceeding, as it would effectually take away 
that responsibility to their constituents which the act intends tose* 
cure, by providing that a record shall be kept of the whole pro- 
ceedings of the Commissioners, < which shall, at all reasonable times^ 
' be open to the inspection of every burgess of the city, and per- 
« sons contributing to the foresaid assessments, who shall and may 
< peruse and inspect the same without fee or reward.' For this 
valuable right of the citizens would be rendered of comparatively 
little avail, by a departure from the invariable custom of insert*- 
ing in that record a specific list of the voters on each question. 

But independentiy both of the practice and the statute, the com- 
plainers contended, that adoption of the ballot, or other concealed 
mode of voting, into the proceedings of any public municipal 
body, like this Board of Police Commissioners, was in direct oppoei- 
tion to the common and constitutional law of the country. 

11. The actual majority of votes was given in favour of Mr Wat* 
son, and, consequentiy, the chairman's casting vote was an illegal 
assumption of power. This the complainers offered to prove by 
competent evidence^ and, in tiie meantime, produced a declaration 
of the feet, signed by a majority of the Commissioners who voted 
on the occasion. 



H^ BK COURT OF SCSSION. S78 

; lie Lord Ordiiiary hK^bng reportdi the hti tn tte Court; the ta ^^r: im. 
Feflpoiide&t% ilitir ttttis |»fe£iAit^Thil Mr DeiAVwilwtiog f^ pos^ ^ <^^ ^i ^ ^ 
session of the office before the application was frabcHted, hii Action Waboband '^ 
could not be questioned, except in a regular reduction ; Orr v. nii^dnen of * 
Vdance,^ Dec. 1891. PoikeofGias- 

gow. 

The Jtistice^Clerk said — 1 am clearly of opinion tliat Mr De- opinion of 
novan cannot be held to have been inducted, and in possession of Court. 
the office ; and therefore a suspension and interdict is not an in- 
competent process to try this question. The case of Valance is 
in no respect parallel to the present. The former referred to a 
burgh election, as to which there must be either a petition and com- 
plaint, or a reduction. 

The question then comes to be, whether the course of procedure 
here complained of can be sanctioned. Even if it had been com- 
petent to the Commissioners to make the bye-law which introduced 
the voting by ballot, yet as it was not sanctioned by the Magistrates, 
or published in the way which the statute points out, I hold it 
to be of no force. The question, therefore, on general grounds, is 
this, can a court of law sanction the ballot as a regular and lawful 
way of voting in such an election as the present ? In the case of 
Montrose, this matter was thoroughly considered, and the Court was 
unanimously of opinion, that such a course of proceeding could not 
be sanctioned, and the consequence was, that the election was set 
aside. I am therefore of opinion, that we must grant the prayer 
of this application* 

Lord Meadowbank. — I am of the same opinion. I have not the 
least doubt as to the competency of this application. The case of 
Valance has not the least application. With respect to the ballot, 
I agree also with your Lordship. The casting vote of the chair- 
man is quite inconsistent with die principle of the ballot. Besides, 
this was not a mode of voting which, in virtue of the bye-law, could 
be resorted to till that bye-law had been sanctioned and published 
as the statute requires. Farther, I hold a vote by ballot contrary 
to the common law, and accordingly, I find a statute in the reign 
of Charles II, declaring this mode of voting to be illegal in Par- 
liament. 

Lord Cringletie. — I am of the same opinion. It is impossible to 
say that this is not a bye-law in the sense of the statute, and there- 
fore it could not authorise a vote by ballot so long as it was publish- 
ed in terms of the act 

Lord GUnlee. — I confess I was satisfied with the want of the 
statutory sanction or publication of the bye-law in question as a 
sufficient ground for tiie application. 

VOL. VII. 2 c 



374 



DECISIONS, &e. 



No. 94. 



10 Mar. 1832. The Court passed the biU^ and graiited the interdict as craved, 
V^yi^ without prejudice to the Conmussioners proceeding to « new eleo- 
Wfttaon and ^^^ according to law. 

Others v. Com- ' ^ 

missionefB of 

Police of Glas- z^rd M<men^, Ordinary. For the Complainers, Skmi, Ivory, Dkk. J119, 

«®^" Pediejtnr* W. S. Agent For the Respondents, Dean ^ JFoc. (BoptfJ 

Sd-Qm, fCoMmhJ Monro. Waiter Dkkaon, W. a Agent. 

S. 



Judgment 



No. 95. COURT OF SESSION. 375 



FIRST DIVISION. 
No. XCV. 12 May 1832. 

GUTHRIE AND Othbrs 

against 
COLVILLE AND Others. 

Jurisdiction. — Burou of Barony.— Process. — Tlie Magis- 
trates of a burgh of barony being vested by the burgh charters uxith 
general powers of jurisdiction^ and specially witli power to exclude 
aU persons from tlie privileges of. trading within the burghy except 
those that skaU receive burgess tickets^ < and excepting likewise those 
^ who shall procure heritable fom of any part of the houses^ yardsy 
< and incorporate acres of kauP within the burgh^ founds that the 
Magistrates were incotnpetent judges in an application by their 
Treasurer against certain individuals carrying on trade within the 
burgh without having taken out burgess tickets^ the defence beings 
that the exception of heritable feus included mere personal rights to 
such feus within burghj and there being no such distinct averment of 
an established usage in support of the exclusion o) parties possessed 
of such personal rights as to found a jurisdiction in tlie Magistrates 
on the ground of use and want. 

The town of Kilmarnock was erected, by the Earl of Kilmarnock, 
then in right of the barony, into a bargh of barony, in the year 
1591, confirmed by a charter under the Great Seal, which was 
soon after ratified by an act of Parliament In 1690 and 1700 the 
then Earl of Kilmarnock made a new g^ant to the burgh, confer- 
ring certain rights and privileges upon the inhabitants, and various 
powers upon the Magistrates and Cocmcil of the burgh, and, inter 
alia,