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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.

It has survived long enough for the copyright to expire and the book to enter the public domain. Af- terwards, however, (13th May 182.5), when it was discovered that this form of action was in- competent to' obtain dccernfturc m terms of the donclusions therein contained, the advocator brought an ordiiiary action against the respon« dent, which' was conjoined with the summary complainf. In 1729, John Duke of Roxburgh executed, in favour of his son Robert, a disposition of the entailed estate, including the lands of Hownam, and consequently the superiority of Samieston ; which disposition contained procuratory of re- signation. Messrs John Taylor and Sons, Ayr, and Messrs M'Harg and Wallace were also partners at the same time. The other Judges havfaig concurred, the note was refused on the understanding expressed. Mr Buchunan proposed to treat him liberally in the new projected establishment ; and the Lord Ordi. The accounts for the neict voyage, in 18, were sfoted with reference to the altered state of the ownership, the suspender's share being regularly stated as one half. The following is the substance of that opinion n^ Lord. Mt U^Chaf^e upm a protested Wf granted to a wjfe h^itre marn''get MMtf Aitket 9umendi6d^ m retpect of the protest b^vig executed in name 9f the husband* In 1820 Mtsa Mary Sftntfa, Who possessed considerable fiknd^ |)Iaced in her bt-other^ the gnspender s hands, L8d O, for which he granted his promt8S6^/-ifo Ye m these terms :— « Arhroat K; 18M Auguii 1820.— tour years after date, I promiad to ^aiv to Mfsa Wary Smith, or order, at the town-clerk*8 office here, LS^i O Sterling It was pleaded by the advocator, — 1st, That a plan nad been preconcerted between the respondent and her uncle to defraud his cre- ditors ; and 2d, That the bankrupt would have been incompetent as a witness in any ques- tion merely affecting his niece, from the rela« tionship of the parties ; and that it was much more incompetent to refer to his oath, after he was bankrupt, a claim made by his niece, which materially affected the interests of his creditors. Parties were also heard by senior Counsel at the Bar, by the appointment of the Court ; and', when the cause. On again hearing parties up- on this remit, the Lord Ordinary appointed the reasons of advocation and answers to oe revised.

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

Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. L In submitting the present Work to the con^ sideration of the Public, the Proprietors confidently trust that a very short statement will be sufficient to demonstrate its utility and importance. Cases having been ordered to the Court, their Lordships found — (, Digitized by Google No. That the L4000 ought not to be deducted from Mr Cochran's executry* II. Instead of following out a process of removing, it was arranged between the Duke of Buccleuch and the tenants whose leases were thus set aside, that the latter should become and continue tenants till Whitsunday, and the separation of crop 1822, and that their removel should be postponed till that term. The Lord Ordinary made avizandum to the Court ; and their Lordships, by the narrowest possible oa- jority, found the letters orderly proceeded in the suspension, and assoilzied the defenders from the conclusions of the action of reduc- tion. to obtain redress against certain alleged encroach, ments or usurpations made by the latter upon the salmon fishings belonging to the pursuers in the river Conon. 41, whereby these forfeited rights were vested in commissioners : Sd^ The statute 24. The defenders, on the othbr hand, rested their claim to the disputed fishing ex adverso of their lands, \st^ Upon acharter in favour of the borough of Dingwall, (September 1587), which contained a grant of fishing in the following words : — r Faculty, Sc« licitoro Genenl, and Buchanan. Every election since then was subject to challenge as much a» that of 1828, and might have been reduced. Coutts and Company, and Marshall, the petitioners de* termined to discharge them ; and, for that pur- pose, sold two portions of the said estate, called Riccalton and Broom. The diligence might have been legal, but still, if oppressively executed, that was relevant to found an action of damages. Meantime, before this decree was pronounced, the pursuer brought an action against the defenders, Wilson and Maclellan, and Macqueen and Mackintosh, concluding for re- duction of the decree in absence. The defender further pleaded, that he had never approved of nor signed this contract : that it had never been sanctioned by a general meeting ; and that, before it was drawn out, he had intimated to the Company the transference of his shares to Mr Tod, W. — which right of transference was secured to him in the original proposals, and that a resolution of the first meeting of the subscribers (before the contract was made) gave subscribers an option cither to sign the contract, or to forfeit their shares. Of these judgments advocations were brought at the instance of both parties, before Lord Ordinary, Corehouse ; who by an interlocutor, (November 1828,) repelled the reasons of advo- cation m both actions, remitted simplicker to the Sheriff. As the parties lived in the same town, and com- municated orally, there was no written evidence by letters upon the subject. Alexander pursued him for restitution, and the Sheriff fiund, that after the widow had drawn her jus relic Ue^ the gift '* afforded quoad ultra with the possession which was. Upon 13th Novem- ber 1817, Inglis and Company intimated this assignation to M'Farlane, (Morison's cedent), but did not then take possession, nor attempt any further completion of the conveyance ; nor did they intimate the assignation to Rowan, who then held the subjects under Morison. As th3 first assignation contained a power to alter, and as tile deed of 1730 was never registered, the son might consider this a revocation of the for- mer rif^t. In extinction of the £300 burden ; and, II, in payment of various accounts due by the pur- suer, for which he (Smith) obtained discharges which the pursuer duly attested. Respondent's authorities.— Fraser's Trustees, TIth Ju Ij T 1800, and authorities referred to b^v the Coiii« plainer* Lord Ordinary, Fullerlon.— Counsel for Complsiner, Forsyth: Lockhart and Siran, W. There were other pleas upoii the import of the evidence and upon the merits, but into these the appellant stated it to be questionable whether their Lordships would then be disposed to go. It dhould be well considered, oefore laying this down as i| general proposition. 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. That, looking lo the principles ofjustice, and the facts disclosed in tliis body of evidence, the conclusion arrived at by the Lord Or- dinary is inevitable^ It was not legal in the directors to ask the bond under reduction, with- out communicating to the cautioners the circum- stances known to them. In particular they founded on a pe- tition, dated 27th August 1562, by the Town Coundl to Queen Mary, with deliverance there- on,— a bequest in 1580, by Mr Clement Little, advocate, to the Town of Edinburgh, of his library|.^-a bequest of the Bishop of Orkney, in 1582, of 8000 merks to the Town of Edinburgh, for founding a college there,— an extent of L2000 imposed upon the freemen and burgesses in 1583, in order to defray certain works and buildings connected with the College, — agree- ment between the Town Council and the Arch* deacon of Lothian, for the demission of his be- nefice, with the parsonage and vicarage of Currie, m favour of the city, to assist in the establish- Ms M of the College, — and bequest of one hun- dred merks to the College, by Mr James Bannatyne, brother to Mr Robert Bannatyne, Justice- Clerk-Depute. Lord Justice-Clerk regretted that the Court weice called upon to review an argument that was formerly before the Judges of tlve Second Division. But he was afraidf, if the case went to appeal, the case of Peacock xrould be used as a precedent for sending it back lo the Jury Court. ci(u- tioner in the confirmation of the executrji for L5770, 7. Sterling for their, several lights end intoreats, to free and relieve the pursuer, a^ fiuetor and agent fbcesaid, of the foresiud order of coosigqa- tion," &c« ' Defences were given in for each of parties ; in which they giencnrally that the action was incompetent^ in irnpoct the conclusions were against the defondem, sa co- trustees, which ;was an ixregalar atten^ to set aside the JSnal interlocutor^ ordering the nmisiff nation in the multipl^oinding raised by dietras- ter*s heir in 1819, aad in whudi mulripfopoindiuii it bad been found» that tbeaum ordained to be eoni^gned could not form a claim i^it ilie trust-estate, not^ in coaseqiie^ce, iigainst ilie Digitized by Google 202 SCOTTISH JURIST. defenders, ^t/a co-lrustees, or as representing co- trustees ; — that a part of the sum thus consign- ed had been advanced to the heir and executor of the truster (defenders) for which they, oi those representing them, might have been found liable, if they personally had been called in an ordinary action. The present de- fenders are now the partners of thifi Company. Addisons, and John Roebuc K, since the death of each of these individuals, the vassals last infeft therein; ano^hat the retour duties and rents, after citation, bejtong to the pur- suer, as superior ; and therefor^ wat the de- fenders should be ordained to make payment of these duties : And further, that if the lands shall be declared to be in non-entry, and the defend- ers are desirous of being entered vassals, that they are only entitled to demand ah entry on paying £500 Sterling of composition, as pro- vided for by the original feu-contract, besides payment of double of the feu-duty stipulated by the said contrac L In defence to this action, — Hams^ 9. This action was remitted to the Jury Court ; and the pursuer got a verdict for L85, 10s. But the giving out of thi B certified copy of the verdict and ju(^gment was supersedea, until the balance due by the pursuer to the de- fender should be ascertained under the present action. Wetnholu— Appeal presented, and Responder wi A to sniwer in a fortnight, and leave for a recu^ anceto be entered Into for the Appellant. It may be the founda- tion oi the diligence of inhibition, arrestment, &c. It stops the currency of prescription, and it would be monstrous to maintain, that all such diligences properly used at tlic time, must fall and become utterly ineffectual by the death of the defender. 2d, The claim of an onerous indorsee is good against the acceptor of 9 bill, although the bill has been protested for non-payment. According to the authorities and ^neral practice, the dili- gence should go on in name of the cedent by whom it was begun. Lord Glenlee stated, that the que.-«tion was, Whether, there existed sufficient evidence, to enable the directors to come to the conclusion, that this agent was no longer trust-worthy ? The pursuers also rest- ed their case on the charter granted by King James VI. On looking to the pleadings, it ap« peared that it was decided, in 1817, by a naa- jority of the Court, that these leases were cut off both by the positive and negative prescrip*- tions. Lord Craigie took a different iriew, and did kipt think, if Mr Cajttpbell had raised an action ngainst the defender in 1813 for a quantum vieruit sum, in payment of his former ser- vices, thi|t he could nave succeeded-^^om 1805 to 1813 he must have been drawing perquisites and accommodations, besides the vdoe of his writings. For Mr Roy, defender, it was denied that he represented the late Kenneth Mackenzie of Dundonnell) but admitted that he was first substitute of an entail executed by the said Kenneth Mackenzie. In ihe year 1802, Lord Cathcart conveyed his lands of Sauchie to the present pursuer. The pursuer then revived his original action; by executing a process of wakening on 22d November 1827, when he was appointed to lodge objections to the defender's state of ac- counts. fit The great number of Csni deeidcd Ust week, bat rendere* CBMaa T the publication of a Supplementery Nuniber/ which w Ui ai on Tburfday, the 4lh of June. Lord Corehouse having reported the case t(i the Inner-House, Lord Balgray held, that it would be attended with most dangerous consequences, if the Court were to permit the valuable rights .secured to a pursuer by the mere act of executing his sum- monsr to fall upon the death of the defender. It was answered by the defenders — Istj The priyileges compe- tent to onerous indorsees cannot be successfully founded on by the pursuer ; because, before his authors, the Stirling Banking Company, oh* tained the bill in question, it was past due, and every banker must have known, ex facie of it, that it had been duly n^ociated, and the legal presumption must have been, that it had been retired by the fuusejitor, as thie person primarily liable ; and 2d, That as Mr Buchanan had re- ceived no adequate value for the bill, it was not a just and eqnitable ground of debt against his representatives or creditors. Sir William Forbes and Company might have been called upon to grant an assignation, but the shorter mode was pre- ferred, which is usual, and quite sufficient.

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