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Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. That the arrears of feu-duty were also a debt against the executry, in opposition to the decision of Wilson, 29th July 1718, Morr. 5455.^Upon the 4th and 5tli points, the Lord Ordinary was of opinion, that the sums therein stared must be deducted. Heir and Executor^ — All the leases on the Queensbeny estate having been reduced, as a contravention of the entail, by the decision of the House of Lords in 1819; the lease of Thomas M* Michael, father of the pursuers, was^ in con- sequence of that judgment, reduced and an« nulled by a final decrae of the Court of S^%» gion, of date 20th December 1821. A bill of suspen- sion was presented an J passed (16th Oc- tober 1 804} ; and at the same time, this ac- tion of reduction was raised, remitted to, and discussed along with the suspension. of Teaninich, and the Ho- nourable Mrs Maria Mackenzie of Cromarty, against the Magistrates of Dingwall, &c. The pursuer further founded upon the immemorial possession and exercise of an exclusive right by her ancestors and authors. Lord Craigie considered that a good general rule ; but, in the peculiar circumstances of this case, his Lordship thought it would be better to remit to the Sheriff of the shire to suggest the most suitable individuals* Lord Gillies thought the Court must go back here to the magistrates of 1818. Jn order to prevent the estate in Scotland from being carried off by adjudications which had been raised by two of these creditors, viz. The Lord President considered sequestration merely a step of diligence, which it was unne- cessary to reduce, any more than k would be to reduce a caption. The latter, however, upon dis- covering the error in the protest, immediately raised an action of repetition and datnages against the pursuers, on account of the illegal diligence used against him, and obtained decree in his favour. pany— had paid, previous to the comple- tion of the contract, one instalment on his shares, but had not signed the contract, nor attended any of the meetings of subcriber! ; whereas the original proposals, — 1st, Limited the Company to the sale of gas manufactured by others, — 2d, To the sale of oil gas, — 3d, Did not contemplate the enlargement of the capital, nor the increase of subscribers ; — nor, 4th, The sale of gas without the city of Edinburgh ; — nor, 5th, The continuance of the Company for 60 years. The Sheriff, by an interlocutor (1825), found the process of division, as of runrig lands, com- petent, and subsequently approved of a scheme of division, and declared tne grounds allocated accordingly. It was also stated by the pursuers, and not denied, that be held himself out as owner. — ^Firstofall, Sharp was the ship's-husband • and in balancing ac- counts, he was regularly debited with one-half of any loss* Lang applied to him to advance the insurance, and notified that the Insurance was not paid. Lanff would have been liable if be had not effected the insurance. Upon the death of the widow, her executor carried off the furniture as in bonis defunctie. and Company a cash credit ; and, in security of the advances to be made thereon, granted, of game date, to the said Inglis and Company, a bond and assignation conveying to them hi^ in- terest in the foresaid tack. A title was made up in fee** simple, and thus continued till 1781. In March 1821, Elder, being possessed of an heritable property which was burdened with a debt of £300, employed Smith, the defender, a writer m Dundee, to n^ociate a loan of £500 Digitized by Google 212 SCOTTISH JURIST. Smith procured the loan (for which Elder grant- ed an heritable bond,) and applied the money — I. Fifth, That an offer of exculpatory proof bad been made by the appellant, and rejected by the Ma- gistrates, although he had been seizea ex impro- viso upon the streets of- Inverness, and could not possibly be then prepared with his defence. Bui if it was alleged that there would be a re- version, after the creditors had been paid and m discbaive granted, then his Lordship thongh C the reterence to oath competent. Lord Pitrailly rested his opinion on the circumstance of the uncle being bankrupt; But if it were held, that upon bankruptcy taking place, an oath were not to be received, it womd lead to the greatest confusion in many cases; for example, in the case of bills, where prescription has ta Jkett place, or in the proof of trusts.

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And the answer of Mr Fraser shews that suspi- cions had been entertained for some time before. Lord Craigie stated^ that he had prepared full notes of his opinion, which he would not take up the time of the Court by reading ; but that he would communicate them to the parties if they should ask for them. Bnt irh»K]iad raised an action at that time for a quantu M mnuit sum lie auut have succeeded. Complainer*s Authorities.— -Erskine, 1 .7.7« Baxter, Sth July 1825, Fac. S , being, along with the pursuer, the whole of the said truiitees who survived the tes- tator, and accepted of the trust ; and James Scop, £ q. A regular disposition was af- terwards granted by Mr Casamayor, and the other members of the Devon Company, in fa- vour of Thomas Longridge and others, ** Who are to csrrv on the business of an iron ma- nufactory, and also the business of raising and selling coals, &c. The following interlocur tor was accordingly pronounced : — " Find that the advocation from the interlocutor of the Inferior Court, in this case, is incpmpetent, in respect that th^se interlocutors do aot-exiiaust thp conclusions ,of the original action ; therefore alter the iftterlocutor of the Lord Ordinary, dismiss' the foresaid action, and decern : Find the reapondenc entitled to his expenses ; allow an account thereof to be given in, and^ when lodged, r6mit to the Auditor to tax the same, and report in icommoa Conn.'* Lord Ort Unary, Mackenzie. Jameson and John Russel ; Charles Fisher, Agent — ^Counsel for the jlesponden^ Solicitor. The Mieriff, 31st October 1812, of consent, granted warrant for sequestrating and selling as much of the crop and stocking as would satisfy the past and cur- rent years' rents. The present action was brought upon the nar : Digitized by Google Nu. The summons therefore concluded, that the de- fender should mzke payment to the pursuer of £500 Sterling of jdamages, occasioned by his failure to implement the conditions of tho lease ; and of £150 of damages occasioned by the in- terdict and ejection, nrom the farm : And fur- ther, shouldhold just count and reckoning for the proceeds of the roup, and pay £600 Ster- Kng, or such other sum as should be found to be the balance of said proceeds, after deducting all such claims as should be found legally due to the defender. Jtransferred, although it not be what is technically called a process. The trustee for t^ Company, having been un- able to recover payment of this bill from Mr Buchanan's representatives, raised the present .nctioti against tliem. He £t the Hll to do diligence upon it, and also a tter which is not produced. The agreement was not only a restriction of the legacy, biit ^ ^9raiver of the option alto- gether.

Then there is the evidence of Mr Sinclair of Freswick — the Countess of Caithness — Mr Per- gusson — and Mrs Brodie — showing the surprise of the Bank at receiving the bond signed by the cautioners, considering the circumstances of the agent. — This action of declara* tor was raised bj the pursuers, in consequence of an application presented to tlicro by Dr James Hamilton, jttftior, professor of midwifery, on 21st January 1824, — in which it was stated, that he had been refused admittance as a member of the medical faculty in the University of Edinburgh, upon the verbal objection, that the professor of midwifery is not a professor of medicine^ The pursuers founded their action on the original constitution of the College, their inhe- rent righ U as patrons, and the uninterrupted ex- ercise of these rights in the appointment of pro- fessors, and the institution of regulations for the College. His Lordship stated generally, that he thought the rights of the pur- suer had not been done away with, either by the negative or positive prescriptions. Lord President concurred with Lord Balgray OJ1 the principle of decision. accountant in Edinburgh, the trustee, and Ro- bert Roy, £9q. S., the i cpresenratlve of the said Captain Kenneth Mackenzie, last of Dundonuell, the heir, and the said Thomas Mackenzie, the axecutor of the said George Mackenzie, for whom he is. under the firm oi' the ' Devon Iron Com- pony This disposition was dated 16th and 17th June, and 17th July 1800. The whole effects, except a quantity of hay, dung and turnips, which the defender agreed to take at a valuation of £62, 9s. were thereafter sold by public roup, at which the pursuer was present. The consideration of the count and reckoning was postponed ; but, on the other parts of the cause, tbe Lord Ordinary pronoun- ced the following interlocutor, 17lb November 1818:*- *• The Ordinary is of opinion, that there is no suf- ficient ground for a claim of damages on ^he part of the pursuer, on account of the state of the houses, lences and drains ; and, with respect to the proceed- ings tfi^ the proce Ki of removing and in the sequestra- lion, the Ordinary does oot see any thing stated which infers that the proceedings were contrary to law, or that any applicaiion was made for redress against the Sherii Ts judgments while the process was in depend- ence, or that a reduction hax been brought; aifd, in these circumstances, the Ordinary is of opinion, that even if they had been accompanied with hardship to the pursuer, which, according to the defender's st«te^ ment, is far from being the ease, no redress can be given : And, with respect to the sale of the crop and stocking, finds it admitted that it was not actually gone about in the precise terms of the Sberifl Tis war- rant, and that the roup^o U had never been reported in Court, although, as stated by him, every thing was done with the pursuer's consent, and the* balance of the proceeds of the roup, deducting the preferable rents, left in the hands of Mr Hutchison, to be a fund of division among the pursuer's creditors ; but the Ordinary finds that this matter is not so fully ex- plained 88 to enable htm to pronounce any judgment concerning it : And, on the whole matter, declares lie will hear parties further on the conclusions of the Ibd ibi count and recko Ding, and for damages, in to far as they may have arisen from the roup having been otherwise proceeded in than authorised by the Sheriff; but, quoad ultra, sustains the defences, as-^ soilzies the defender, and decerns." In January 1820, the pursuer raised a sup-' j^ementary action, concluding, that the defender should be ordained to pay him L500 Sterling, '* In name of damages, occasioned by his illegally and improperly disposing of the pursuer's property to the extent of nearly L3d0 Sterling, exceeding what he was entitled to do luider the warrant o^ tha Sherifi F^ in virtue of w^h the sale proteed^^-^by his not having intimated and reported the sale in terms' of the Sheriff's injunctions, — by the conduct of him- self or his overseer during the sale," &c. It would be most dangerous to hold any other doctrine ; for an executed summons is attended with most im- portant consequences. In support of the action, it was pleaded Vy the pursuer— li/, A holder of a bill, in whose favour it fails been indorsed, and with whom it has been deposited ab a pledge, or security of |b debt larc^er than the sum in the bill, is as much to be held ^n oi^erous indorsee, as if he had ac- tually paid exact value for it, and is entitled to the same privileges in regard to it. If that letter were disputed by Ainslie, it might be necessary to produce it, but he admits it.

Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. Mrs Little became pur« chaser of the greater part pf these subjects, at the price of LSSO^being aware of the real bur- den which existed over the whole subjects. L6000, to be restricted to L4000 in the event, which actually took place, of there being oijly one daughter of the marriage. These three actions were conjoined, (23d September 18^.5)- Alexahder objected to the respondent's com plaint, that it was out of form : and^ tof remove this objection, the respondent^ (5tli Decem* ber 1825,) brought an ordinary action fbr relief of the conclusions of the actions at the instance of the advocator. In 1740, the First Duke John executed a conveyance of his estate in favour of his son Robert, and his heirs and assignees, and died soon thereafter, in 174L Upon his death, his son Duke Robert had the option of taking and holding the lands of Samieston, either under the procuratory of 1729, (which, in consequence of the consolida- tion 1737, carried both the property and the entailed superiority of the lands), or under the conveyance of 1740, in favour of heirs and as- signees. The bill was vitiated in the date, and the notary, who extended the pro. the judgment of the Lord Ordinary, in so far as it reduced the titles challenged, and, on the above grounds, asaoilaieing the defenders from the reduction-improbation idtogether, find, ing expenses due, Arc. And, if a loss instead of profit had arisen on their engagements, the Lord Ordinary must be per- mitted to say, that in his belief, the representative of that gentleman would have been quite indignant, if Mr Bu- chanan had called on him to bear one half of the loss. There was some dispute also between the parties as to the precise amount of insurance due by the owners ; but this wasr referred to an accountant, who reported upon it. A decision being pronounced against the pntsuer, he put in a reclaiming petition, which aigued Ae case Printed, Pttbllsbed and Sold by M. This tack was assimed by the Countess on 15th June 1724| to Mr Hurry Maule, and the heixs-male of hn body ; Whom fiiiling, his heirs and asstgnees Whomsoev Qr. fj^ that a p PTMni living under the protection cflhe Sanctuary ii not el^glbte at a Manddtory:' Tiurnbn}! A witness is dis- qualified by his interest in the cause.

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the publisher to a library and finally to you. Soon afler the date of this purchase, Wightman entered appearance in the multiplepoinding, both in virtue of his real security, ^nd as a pre- ditor of Williamson, the seller. By disposition (6th July 180*), Mr Cochran, senior, disponed to Mrs Johnston, excluding her hus*- band's jf« mariti, and reserving his own liferent, a house in Musselburgh, worth L800. This action was (IStli Janu- ary 1826,) conjoined with the previous proceed- ings, without objection by either party. He chose the former, by executing th^ procuratory of 1729, and making up titles under that procuratory. test, instead of filling up the proper date, filled up the « twenty-eighth day of Jvdy ;" so that the bill appeared, ex facie of the protest, to have been protested only three days after it was dated. Indeed, it appears to be quite impossible that Mr Bu- chanan could have made such a demand ; and of course it is plain, that Mr Pollok's representative can only claim a third of the profits. nary conceives to be a third of the net produce, after de« ducting one-eif;hth as the admitted share of Allan Po U lok, and one-fifth of the profits of the trade conducted by Mr Tredway, these deductions being considered aa expenses or burdens on the profits divisible between Mi: Baohoniui and Robert Pullok." Digitized by Google }? 5.] SCOTTts U jurist; J9 The revised cases for the parties having come before the Inner House, the Court unanimously found, that the deceased Robert Pollok held onlj •ne-third share of the* net produce of the concern in which he was a partner with the respondent, David Carrick Buchanan, referred to in the pleadings, afler deducting one-eighth as the admitted shai^e of the deceased Allan Pollok, and one-fifth of the profits of the trade conducted by Mr Tredway : Found the defen- der entitled to the expenses of the discussion of this question • and with these findings, remitted to the Lord Ordinary, in the conjoined actions of count and reckoning between the parties, to proceed further therein as to his Lordship might •eem just? An action having been instituted hy the charger before the Admiralty Court against the suspender, after a variety of procl ENdure, the Joage-Admirai pronounced the following inter- locutor ' — ** 22(2 November 1827.— The Judge- Admiral, having re- sumed eonsideration of the report of the aceoantant, with the objectio Di and answers, and heard Gouniel for the partiesy repels the defence that the insurances in question were made by the pursuer (charger), without any express au Choritj from the defender (suspender), in respect it is instructed, that Jtunes Sharp, the former ship's. On 17th May 1724, the York Bnildingg' Company granted a lease to Mr H. On the 2d and 8d October 1730, the Countess of Panmore and Mr H. luul, for lope .'tin^^, been pursuing JPfiul ^d Cpplk for an. Gordon, Respon- dent^ Contravention of the Salmon FUheriei' Act — not com^ pctent to reduce evidence to writing. Hut, ih the case of a reference to o^th, interest in the cause, so far from being a ground of disquali- iication, is the only reason for the reference. A witness is excluded in the cas^ of near relationship.

The report of Mr Marshal, the inspector, in September 1803, con* tained statements regarding the manner of con- ducting the agency, and the other speculations of the agent, sufficient to attract the notice of the Bank directors ; and the demand of additional Digitized by Google No, 10 SCOTTISH JURIST. The Court accordingly, in respect of the vi- tiation of the bill, and illegality of the protest, and diligence thereon, found the defenders joint- ly and severally liable in repetition to the pur- suer, ; and renntted to the Lord Ordinary to hear the parties on the question of relief, and found the pursuer entitled to his expenses. This doctrine, founded' on general principles, teems fully confirmed by the authorities cited in the re- vised case for Mr Paul. In the ease qf a lease, the right is completed by pos- session. Lis alibi pendens^ in respect of the action brought by the pursuer in the Sheriff-court, dlst August 1H27, against Latta and Com- pany and the Calder district trustees. M.- Gibsois as roprcsenting the Corstor- phine district, pleaded — T. In parti- cular, the existence of the partnership was re- cognised in the following letter, addressed ** To the numerous and respectable te Nuatry of Auchterarder. — Gs NTLk Mf N, It being incoii Yenieiit for me at present to leave Kdin- burgh, I have senx my assistant and partner, Mr Ar* .chibuld^Campbell, W^S., to collect the rents of the estate of Auchterarder for crop 1^]2, and preredings. bell died in January 1823 ; and his trustees plied the present action, to have it found and declared, that Mr Campbell was a partner of the defender from the 1st of January 1813 till his death, and that as such, he was entitled to one- half of the profits and emoluments realised by the concern during that period: And moreover, tliat Mr Campbell was entitled to a fair and adequate remuneration from the defender for the chairge and superintendence taken by him qf the defendei-'s extensive business as clerk, priar to the said partnership, according to the rate of payment which should be declared just and reasonable by persons of experience and in- tegrity in the same profession. M'Leao a Thistees, 3d Juae I800u Lord Ordifiarv, Machanaie.- . «B^Mes Ei^ssssa Exssssass=ipss Beaa Ba Ba Ess8Baa BB3BBBa B^Bais^:s May 27, 1829. M^f^eclmie having obtained paymant or thme expanses from Miuiin, Potters agent in Edin- burgh, a oonsidovble bahnee remained dna by him to Potter of the money whisli had bean advanced for ewrying on the tiidaett OBi Pot- Digitized by Google ^6 SCOTTISH JURIST. It is objected generally, that the charges relative to transacting a loan for L500, amount to above L70 ; but on looking into the ac- count, it appears, that a very considerable part of the sums relates to business altogether unconnected with t\\e loan, and the great bulk of the remainder con- sists of payments made by the defender to other per- sons. whole sums, principal and tntereat, are paid up, and decerns accordingly: Finds expenses due la the pursuer/*^ &c. The respondent, however, denied having entered into any snoh arrange- ment, or given his consent to the removal of the things purchased ; and, at the distance of seven months from the time of the sale, an action was raided before the Sherifl F of Cromarty for the amount of these purchases, in which the Sherifiv 31st August 1827, repelled the defences, and de- Digitized by Google S30 SCOTTISft JURIST. While these back;^nds, however, did not enter the register of rever- sions^ Smith and George took sasines on the con"- Digitized by Google •No. 231 veyances in their own favour, which were duly re- corded. For the defenders, Sir William Forbes and Com* pany, the converse of these propositions was maintained; and, in particular, they contended, that the st Mnte did not render a sale null, mere- ly because it was not reported within eight da3rs. Upon this event, it was discovered that the fiinds left by the deceased were not sufl Scient for the pay- ment of his debts, and of the various provisions left by his deed of settlement. The resl^md^nt had di^bovered the fragment, of a book among the records in the General Rc|^ster-Houise, bearing to be the minutes of the Sherif P Court of Hamilton . It was quite plain, that by taking down the evidenoe, mudi more had been brought before the Appellate Court than the stiitut^ had ever btendea to sub- ject to its review. When the rule IS so strict as to conjunct and confident persons, can the oath of a bankrupt be taken as per se conclusive?

9 securitj, made about a month afterwards, shewed that these statements did attract their attention. The decision in the case of Veo^ man aminst Elliot and Fotter, 2d Februarj^ 1813, on which Inglis and Compmy rely, mxy perhaps be Justified by the specialties which occurred in it ; but some of the observ Htions, which are stated in the report to have fallen ' from the Bettch, appear to be of questionable authoiit^^ ft must be Rdmittpcl, that some inconvenience may arise from this doctiine, where a tenant assigns his lease, mean- ing to remain in possession himself a» sub-tenant to his ajisifrnee. By what criterion is the nature of this possession to be fixed ? That the two dieck-bars (alle:i:ed to have been injurious) were situated in the Calder district, and were in ope- ration before, and im to- the date of the pur- t Buer*s lease — ^that ttic pursuer was bound to have inquired of the Calder district, who alone were re^^ponsible, whether it was intend- ed to remove them. He will shew my commission from the' ijonourable Basil Cochrane, and he vi\\ deliver to you my re- ceipts and diitcbarges for your rents, on payment being made to him. S." There was no writteji cpntr^ct of copartnery, but the business was mansgcd by the kte mv Campbell, and the defender, a;s having equal powers ; and the deeds written by the clerks bore, that they were the clerks of James Thom- son and Archibald Campbell, W. The defender contended, that Mr Campbell's interest in the copartnery was one'third only, instead of one^ ha Jfs and that it only commenced on 1st April 1813. CNo.1S ^r haying become bankrupt, Richard Griffin, lf the Barony of Gorb^ against M'Kechnie, calling on him -to count and reckon for Intro* mission with the said sums, and to make pay- ment to pursuer of the balance thai; might Ibe iouiid due, and to free and relieve the pi^- .«uer of an action brought against him by Mr James Boaz, accountant in Glasgow, for pay- ment of £l4fi 148., beinp^ the amount of an ac- count incurred in the said action at Potter's in- stance. The settlement of eth July 1 825, was no doubt made when the pursuer was in the custody of a mes« senger; and had any specific objection been made to , the charges for business, or the expense of diligence included in that settlement, there might have beetr ground in the circumstances for still allowins them to be taxed i and although there are general allegations of extravagant charges, no specific objection hat been made to any particular article of the accounts ; and, in such circumstances, the Lord Ordinary sees no cause for reducing. And, in the action for the personal debt, tlir Lord Ordinary, 24th January 1829, Digitized by Google ^e. 2U ** Sustaips the clakn of Dr M'Nei H's represeotp- lives to the sum of L330 Sterling, contained in his joint acceptance with Daniel M*Neill of Gallocheliy, 'dated Sd January 1793, and payable at Martinmas that year, with interest of the same from -th« said term of paytneoty and daring the not payment ; Sus- tains also the claim of Dr Mc Neill's represientatives ,to the sum of LZ19, 39, Sterling, bein^ the sum awarded by the extract decreet-srbitrat pronounced ,«fi the submj SMion between Dr M^Neiil and tike paid Daniel M'Neill, wifh interest of that sura from and since the 1 0th day of February 1796^ the date of the decreet-arbitral« and in ti^ie comin;; during t Vi C not payment: Finds, that. [No r4 cemed in terms of tbe libel, and found expenses due. In 1799, a competition for the rents of th^ subjects took place before the Bailies of 'Glasgow, who found tnat they fell to be divided into two parts, — one half to belong to Walter Combs, and the other half to Janet and Marga- ret Barbour, the sisteps of John Barbour, who had man led Robina 'Oumming, for behoof of tlieir nepliew, John Barbour, who had gone abroad, and for their own behoof asiieirs of pro- vision aforesaid, should the said John Barbour •not return. The Lord Ordinary thereafter pronounced the following interlocutor and note, which sufficient- ly explains the grounds of the judgment:^ . — Having heard parties' pro- curators, and thereafler coasidered the closed record and whole process, sustains the defences for 8ir Wi U liom Forbes and Company, assoilzies them from the conclusions of the libel, and decerns : Finds the pur» suers liable to them in expenses, of which appoints an account to be given in, and when lodged, remits to the Auditor to tax the same and report.** ** Note, — The Lord Ordinary does not see why it was competent, as was admitted by the pursuer in ar« Digitized by Google No. In 1817, there- fore, the whole children, except the respondent and James Laing, wl\o had gone abroad and died there, entered into an agreement, which narrated their father's settlement — stated^ tlie insufficiency of funds for carrying its provisions into execution — and contained, on the one hand, a renunciation by all the parties of the provisions in their fuvour; and, on the other, an obligation by the respondent to pay to his brothers and sisters £50 each in lieu of the said provisions, and that at the first term of Martin- mas after their mother^s death. for 1549,' inr which is contained an entry of thto servide of Alexander Bai Uitt as heir inr special to^ his father in the lands of Jerriston. An autlienticated copy from this document lifas ob- tiuned from the Register-House, and presented to the Chancery clerks, who added it to theii^ books, ancf gave ont an extract of the retour in the usual form. The Lord Jus Hce-Clet'k .concurr^ with Lord Moncreiff. As bis Lordship could find no au- thority or principle for this, and as the oath would affect only the interest of creditors, the Court were bound to find the reference incom- petent.

Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. The Jurist will be published regularly every Monday during the sitting of the Court of Session ; and will be found to con- tain authentic information regarding the ju- dicial occurrences of the week immedie Uely Digitized by Google SCOTTISH JURIST. Counsel for the Officers of the Board of Ordnance— Dean of Faculty and Alison ; J. The point was this — Have the pursuers proved suf- ficient facts to support the Lord Ordinary's in- terlocuor ? It was further urged for the pe- titioner, that as Nicol's re)resentatives were in England, they ought to await the decision upon their claim in the Court of Chancery. Ha conceives that the messenger could not have been sub. The pursuer heie paid the debt for the messenger, and was therefore entitled to every relief the messenger had a right to. The Court accordingly recalled the Lord Ordi- nary's interlocutor, found that the field marked B. Accordingly, after the sale, they lodged a claim in the sequestration for a prefe- rence over the price of the subjects ; which claioti the trustee rejected, upon which they presented a petition and complaint against the trustee's judgment, and contended : I. which prevented the subjects from vestlne in the tioistee by virtue of the decree of adjudica- tion, property not being transferred to a trustee by force of sequestration, but by tile adjudica- tfon 0v conveyance from the bankrupt. That fnglis and Company's right remained persoital and incomplete at the date of Mo Hson'^s seques- tration, by reason of the absence of possessicin. That the tack and subjects became, in conse- quence, and by force of the statute; vested in the trustee from the date of the first deliveraitce on the petition for sequestration. That in- timation of the assignation to the Umdlord'is tlot equivalent to possession ; and, IV. The remarks he might throw out, he be^i^ it to he understood, were only illustrative of the views he entertained. who, upon the dependence of' an appeal from the decision of the Court o C Session (March 1829,) in regard to the Pan- mure and Brechin leases, (Vide Ante^ No 184, p. — The Lord Ordinary havins considered the closed record, and whole process, aad having heard parties' procurators thereon, sustains the defences, assoilzies the defender, and decerns : Finds the pursuers liable in expenses, allows an ac- count thereof to be given m, and remits to the Au- ditor to tax the same, and to report.** " AW.— The Lord Ordinary does not think that any sufl&cient ground for reduction has been made out. with soaie diffiealty, bad at last oome fio the aame coudnsio D. This was a case of relationship ;— they are conjunct persons.

You can search through the full text of this book on the web at http : //books . com/| Digitized by Google Cw UK 3co K loo SQl^ ^i L Digitized by Gooq W Digitized by Google Digitized by Google Digitized by Google Digitized by Google THE SCOTTISH JURIST; COKTAINIKa REPORTS OF CASES PEd DSD IN THE HOUSE OF LORDS, COURTS OF SESSION, TEINDS, AND EXCHEQUER, AND TBB JURY AND JUSTICIARY COURTS, FROM ISth January to the 12th May 1829. His Lordship saw no ground to doubt whether the bond applies to past transac- tions of the agent, so as to render the cautioners liable for these. Lord Gillies said, the Court were in the daily practice of recalling and restricting inhibitions. jected in dannagea for neglect, bad it appeared that the do« cument of debt was vitiated or the diligence inept ; and when the defenders compelled the ptirsuer, as his cau- tioner, to pay up the full balance of the debt, with the expense of the diligence, they were bound to assign to him the debt and diligence, with absolute warrandice. 3, eec L ^, the implied obligation must be superseded by the expressed one. He was entitled to say to the defen- ders — *' I pay you the money upon condition that you assign me the debt.^' The debt must exist — must be in rerum natura — and the as- signer is, in that case, bound to warrant its ex- istence. on the plan in process, (named Whiteraes Cross Acre Hole,) cannot be considered as run- rig land^, or subject to the proposed division ; therefore sustained the reasons of advocation, and remitted to the Sheriff to proceed of new on the principle of the above finding. That they (Ing:lis and Company), by virtue of their intimated assig- nation, had o'btained a complete legal right to the 'subjects for the sums for wliich the security was granted, and were therefore preferable over the said subjects for these sums, to the trustee in right of the general creditors. Supposing their (Inglis and Compiany) right incomplete under the original intimation (to M*Farlane), it wjis eftectually completed by tne intimation of 23d September 1819, before any effectual right was vested in tlie trustee. That the^ trus- tee's right stood upon the naked decree of adju- dication in his favour, unclothed witli possession, wliifh could not compete with their (Inglis and Company) right under their prior intimated assignation. That their mtiraation (23d September 1819) to the tenants, was t^quivalent to possession, and formed a mid^mpediineut. That intima- tion of an assignation made after sequestration, does not constitute a mid-impediment, exclud- ing the retrospective vesting in the trustee by virtue of the act 1815, § 30. Irving." " We concur in the foregoing opinion, fiut under tho following explanation: We conceive it to be unneressary to express our sentiments upon the case of Yeoman v. In consequence of this statement, it would be improper to give even an abstract of the opinion delivered by his Lordship. Maule produced these fee-simple tides as a title of possession ; but he did not found upon the entails. 121,) had an-ested all complainer'g rente" m the hands of his tenants and trustees. The decrees taken for the interests which the defender paid as cautioner, and which compose the greater number of the writs called for to be reduced, are, as has latterly been admitted by the pursuer, only craved to be opened up to the effect of taxing the expenses. Hetention^^'Party in a joint adventure held not entitled to retain more than his own share of the proceeds on ae« count of alleged dcmage from. The pursuer, defender, and others, entered into an agreement in November 1825, to run a new coach between Inverness and Eklinbiurgh, in opposition to the old coach called the Caled O' niarty already running on that road. If ao offer of counter proof had cea Uv been made, H vas the duty of the Justuoes to Jiave at onoe ad? But his Lon Uiip did ikot think it xteoeasary to go into that, look* ing, as he did, to the plain intfiiition this Act of Parliament, that tne proeeadhigs ahonld he aummary, and xo Uhma a ijacerd, which, kowever, bad been erroneously adopted by the Jnstioos* . Wi^out cottateral proof, a bond of trust could not be proved by the oath alone.

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. The Court refused the note as k'egarded the tenants, and adhered with expenses, — ^in respect that these tenants had the power of appearing for tliem- selves, if they considered that they were ag- grieved. Wi Uoh.— i) presented a suixiraary complaint against the re- spondent to the Magistrates of Glasgow. The legatees founded their claim on the following deduction of titles : — The lands of Samieston were feus held of the entailed superiority, which was included in the titles of the entailed estate of Roxburgh, under the designation of the lands of Hownam, of which these feus form a part. Turner and Logan, and the late William Cowan, (now represented by the other defender, Henry Cowan, ) purchased each one-sixteenth share of die brig Hero of Ayr, and paid the price there- of. He was opinion» however, that the question before them regard- ed only the Redcraig quarry ; and that an un- derstanding to thit effect should be expressed in this interlocutor. He had been assumed as a pj^tnertp the ej Ltent of a one-eighth share, which was all he held at the dissolution of that concern. When Sharp ceased to be a part owner, he, with consent of the other owners, delivered over the vessel to the charger as ship'a-hus- band ; and in particular, he explained to the charger his previous practice of insuring the suspender's half of the vessel. His Loidship had accordingly prepared full notes, which he liad read over and over again, and should merely read these as containing the opinion which he had formed. 2d, That it Tfas proved, by the evidence ih process, that the lot- tery ticket in dispnte was tlie respondent's pro- perty : and 3d, That even if, to a certain extent, nirther proof were deemed necessary, the res« pendent most be entitled to supplement the pre- sent proof by the oath of the bankrupt. The Court recalled the interlocutor in hoc siatu^ and remitted to the Lord Ordinary to prepare and close the record.

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