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The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017807045 DIGEST or HOUSE OF LORDS CASES DECIDED ON APPEAL FROM SCOTLAND, 1709 TO 1864, WITH GLOSSARY OF SCOTTISH LAW TERMS, JOHN BOYD KINNEAJR, ADVOCATE, AND OP LINCOLN'S INN, BABBISTEE-AT-LAW ; AUTHOR OP " A PRACTICAL TREATISE ON THE LAW OP BANKEUPTOT," ETC. EDINBUEGH : BELL & BEADFUTE, 12 BANK STEEET. LONDON : WILLIAM MAXWELL. MDCCCLXV. PRINTED BY NEILL AND COJrPANT, EDINBUEGH, PREFACE. The want of a complete Digest of the Ee|lprts of Scottish Appeal Cases has long been felt by the profession, and in an especial degree by those who have practised at the bar of the House of Lords. Although the several volumes of Shaw's Digest now contain references to the full series of the Scottish appeal re- ports, of great utility to the possessors of that work, they can scarcely be considered as precluding the advantage of a distinct publication ; for the appeal cases are there scattered through four large volumes, in the earlier of which the abstracts were prepared by different hands, and on different principles, many valuable points are omitted, and for want of cross-references, it is difficult to find many which are really included ; the English series of reports, in one or more of which the same case is often to be found, are not generally cited ; and finally, the work is practi- cally inaccessible to the English lawyer, to whom many of the Scottish cases in the House of Lords are of value as great as if they had arisen in English courts. For these reasons, I thought myself justified in continuing the preparation of the work now submitted, even after, in the course of it, I became aware that the compilers of the last volume of Shaw's Digest intended to include Paton's reports in its references. iv PKEFACE. No one, however, can be more sensible than I am of the im- possibility of attaining perfection in such a work. There are two main difficulties to be encountered. The first is the ascertain- ing the point actually decided ; the second in determining under which title it ought to be placed, so as to be most easily found by those who seek for it. The former difficulty is peculiarly great in the early series of House of Lords cases, from the rule of the House, not modified till the begianing of the present century, that no speeches were delivered in affirming a judgment, while, even in reversing, the speeches have often been lost. Where, therefore, a case might have turned on any one of several points, it is frequently impossible to say on which the judgment pro- ceeded. When, indeed, the Court below distinctly embodied the grounds of its decision in the decree itself, and the House either affirmed or reversed the whole decree, I have generally, though noj; always, thought it safe to state all the grounds as affirmed or negatived. But where the decree was m. general terms, and the affirmance or reversal ec[ually general, I could only exercise the best of my judgment in determining, subject to every hesitation, and with such guidance as could be obtained from the arguments, or from subsequent jiidicial mention or exposition of the case, which point or points were really resolved. But it must be kept in view throughout that the Digest is a work of reference, and not of authority, and that the object has been to direct to the sources of the law, and to all that by analogy or inference might aid in elucidating the law, and not at aU to assume to say (although, for the sake of brevity, a proposition may be often found expressed without qualification) what is really the law laid down. Thus, even after the delivery of speeches became the rule, many dicta will be found stated in the Digest which will be of infinite value to the profession, although they cannot always be taken as conclusive judgments. My object, in short, has been PKEFAGE. V in all cases to state as nearly as possible what might fairly seem to be decided^ knowing that in any case the reference would be useful, and the error easily amended. With regard to the second difficulty alluded to — that of arrangement — I have endeavoured to meet it by a very copious use of cross-references from one title to another, and by an ample index. The effect of these, I trust, will be to enable the practitioner to find on any subject all that bears upon it, even though contained in a case properly falling as to its principal points under another head. Under each title the cases are arranged according to date, except when similarity of subject rendered it convenient to place some in juxtaposition. In preparing the abstracts, I have in no instance relied on those given by the original reporters, many of which are well known to be very imperfect, and some absolutely erroneous. I have read through every report of each case in both the English and Scottish series, besides often referring to the appeal cases, a labour of which the amount may be conceived from the fact, that there are 1970 separate cases digested, different reports of very many of which are found in the various series. But as each case commonly contains more than one point of law or ■ practice, the Digest embraces upwards of 2500 distinct abstracts, and by means of cross references furnishes direction to nearly 3000 points of law determined or considered. I cannot but trust that the bringing these into one view will be of service to the profession, even while fuUy conscious that I may not hope to have performed the task in a manner exempt from error. Many of the cases being equally applicable to England as to Scotland, I have endeavoured to give some assistance in dis- ting-uishing them by printing the name of such cases in italics. I have thus pointed out not merely those which directly proceed on English principles, but those which may serve by inference PKEFACE. or analogy to illustrate them. Even, indeed, in the more strictly Scottish cases, of which the references are in Eoman type, the English lawyer will often find matter of value to his argument. But after much consideration, I have not attempted to express any of them in English instead of Scottish law language. The result of such a procedure would be to fail to convey to the Scottish lawyer the full information which the word familiar to him would have imphed, while it would have misled the Eng- lish lawyer, by inducing him to suppose that the law is identical where it is only similar, and that no distinctions exist when the distinctions may happen to be material. The Glossary given at the end of the work will, I hope, afford sufficient explanation, without the danger of suggesting error. Several cases not reported are included in the Digest. It had been my intention to give an abstract of the whole of the unre- ported cases, but as they are numerous, and frequently important, it seemed to me ultimately that a mere abstract would be unsatis- factory, and that it would be better to reserve a complete report of them for a supplemental volume. It may be right to add, as a work similar in purpose was a. number of years ago announced by another member of the Scottish bar, that I did not commence till after ascertaining that he had abandoned the design. Lincoln's Inn, March 1865. ABBEEYIATIONS OF EEPORTS CITED. 1. Appeal Eeports. Eobert. . CoUes . . Cr. & St. P. . . . Br. P. C. . Dow . . Bligh . . S. Ap. . W. & S. . BKgh, K S. Dow & CI. CI. & Fin. S. & M'L. M'L. & E. Uobin. S. BeU . H. L. Cas. Stu. . . M'Q. Eobertson, 1 vol., 1709-1727. Colles's Cases in Pari., 1 vol., 1711. Craigie & Stewart, also formiag vol. 1 of Paton, 1726-1757. Paton, 6 vols., 1759-1820. Brown's Cases in Pari., 8 vols., 1700-1800. Dow, 6 vols., 1813-1818. Bligh, 4 vols., 1819-1821. Shaw's Appeal Cases, 2 vols. 1821-1824. Wilson & Shaw, 7 vols., 1825-1835. Bligh, New Series, 10 vols., 1827-1837. Dow & Clark, 2 vols., 1827-1831. Clark & FineUy, 12 vols., 1831-1846. Shaw & Maclean, 3 vols., 1835-1838. Maclean & Kohinson, 1 vol., 1839. Eohinson, 2 vols., 1840, 1841. Sydney BeU, 7 vols., 1842-1850. Clark's House of Lords Cases, 1847-1862. Stuart's Eeports ia Court of Session and House of Lords, 2 vols., 1852, 1853. Macqueen, 4 vols., 1852-1864. M. . F.C. D. . . Macph. 2. CoiTET OF Session Eeports. Morison's Dictionary of Decisions. Faculty Collection. Shaw, 1st Series, Court of Session Eeports. Dunlop & BeU, 2d Series, Ditto. Macpherson, 3d Series, Ditto. EEEATA AND ADDENDA. Page 88. 89. '81. 85 & 42. In references to Nos. 89 and 165, for " Lord Douglas," read Losd Dunglas." In reference to No. 126, for " Came,'-' read " Carre." In No. late. /or " conflictory," read " conflicting." After title Authority of Judgments, insert " See also osise declared to overrule a previous one, if they were not distinguishable, which was doubtete, Greig v. Johnstone, 5 W. & S. 416 (1833)." End of title Cmurity, after " Heir," insert " 56," and /or " Teustee," read " TbustV End of title Buiulmg, after " Shipping," insert " 11." End of title Error\^c., for " Land Agent, 11," read " Law Agent, 12, 14." End of title Grown, }m' " Public Office, 12," read " Public Office, 1, 2." End of title Damages, Mer " Pabtneeship," delete " 22.' In reference to 55, for 'V S. Bell, 342," read " 1 S. BeU, 868." End of title Revocation, \r " Foefeituke, 50," read " Foefeituee, 15." End of title " Succession\^nd Legacy Duties," insert additional cross reference " Entail ; Transfer No. 18, from title 'ViBiTTEN Document to title Conteact, Salan/ and Services, page 88)ah6 contract in the case not having been in writing. 82. 88. 92. 98. 99. 120. 123. 809. 841. ^■■B. — In consequence of corrections made in\he numbering in passing through press, it will be found in a few instances that tie case intended to be cited in a cross reference is that which immediately foUowathe number actually given. For additional cross references, see also Index b\ Subjects, page 367. IsM^^ INDEX OF CASES. N.B. — The figures refer to the pages. Abercorn, Earl of, v. Wallace, 84. Abercrombie, Rigge v., 262. Abercroraby v. Innes, 322. v. Earl of Seafield, 316. Aberdeen Arctic Co. v. Sutter, 331. Earl of Irvine v., 142, 259, 284. Earl of, V. Earl of March, 52. Mags, of, V. Burnet, 214. Mags, of, Still v., 72. Presb. of, Cuming v., 108, 328. Ry. Co. V. Blaikie, 45, 278. Tailors of, v. Coutts, 7, 27, 37, 40, 220, 282. Abernethie v. Forbes, 140. Aboyne, Earl of, Farquharson v., 164. V. Innes, 20, 165. Lindsay v., 120, 123. Lyon v., 43. Adam, Barclay v., 124. Clerk v., 246. V. Farquharson, 120, 127. M'Aulay v., 31, 42, 219, 220. Adams, M'William v., 257. Adamson v. Barbour, 257. V. Darling, 324. v. Edin. and Glas. Ry. 258. Addison v. Row, 331. Advocate-General v. Comrs. Supply for Edinburgh, 42, 327. Lord Saltoun v., 45, 143, 306. V. Smith, 180. Thomson v., 309. Williamson v., 40, 180. Advocate, Lord, v. Bayne, 113, 136, 140,141. V. Lord Boyd, 162. V. Brown, 309. Co., of Advocate, Lord, Carse v., 94. V. Charteris, 336. V. Diet, 252. V. Douglas,. 252. V. Drummond, 271, 307. Drummond v., 109. Duncan v., 343. V. Lord Dundas, 253. Dundas v., 94, 97. V. Lord Dunglas, 35, 42, 98. Eraser v., 31. Frazer v., 208. V. Hamilton, 97. V. Hay, 260, 261. V. Earl of Home, 252. V. Earl of Hopetoun, 308. ' V. Gordon, 163, 183. V. Mackenzie, 22, 252. V. Menzies, 149. Mercer v., 163. V. Duke of Montrose, 315. V. Patrick, 304. V. Lord Pitsligo, 307. Spears v., 97. V. Urquhart, 107, 197, 280. V. Walkinshaw, 307. Advocates, Faculty of, Haldane v., 96. AfBeck, Mags, of Kirkcudbright v., 75. ■ Aglionby v. Maxwell, 106. Agnew V. Bell, 199. V. Dunlop, 26, 38. Stewart v., 21, 36, 135, 181. V. Earl of Stair, 138, 139. Aikman v. Aikman, 111. Craigdallie v., 110. Duke of Hamilton v., 6, 298, 299. Hepburn v., 329. INDEX OF CASES. Ailsa, Marquis of, Kerr v., 144, 207. Ainslie v. Arbuthnot, 263. Sutton v., 19, 70, 149. Airlie, Earl of, Ogilvie v., 129. Aitchison, Oalder v., 264. V. Mags, of Glasgow, 209. Aitken, Greenhill v., 196. Humphry v., 13. Alton, Cheap v., 247. Albion Ins. Co. v. Mills, 88, 156. Alexander v. Macalister, 20, 245. i V. Mark, 173. Miller v., 288. V. Montgomery, 286. Robertson v., 12, 64. Rowan v., 102. Stirling v., 168. Wilson v., 14, 62, 96. Alison, Ferrier v., 47. — — Graham v., 221. Alison's Crs., Chalmers v., 313. Allan, Blackwood v., 198. . V. De Voz, 86. V. Glasgow, 319. V. Glasgow's Trustees, 179. Henderson v., 201. Jeffrey v., 56. M'Craw v., 258. M'Culloch v., 294. V. Robertson, 282. V. Sinclair, 171. Smith v., 201. ^— Smyth v., 267. South Leith v., 35, 258. V. Tumbull, 249. Walker v., 307, 327. ' Allans V. Mags, of Rutherglen, 330. AUardice v. Robertson, 36, 207. V. Smart, 152, 270. Allen, Pattison v., 8, 55, 284, 326. V. Berry, 217. AUnutt, Scott v., 179. Alston V. Campbell, 200. Annan, Mags, of, v. Farish, 30, 72. V. Shortreid, 75. Annand, M'Dowal v., 60, 165. V. Scott, 193. Annandale, Brown v., 251. Annandale, Marquis of, v. Lord Hope, 269. V. Earl of Hopetoun, 176. . Robertson v., 157, 333. ■ Marchioness of, v. Marq. of, 320. Marchioness-Dowager, v. Mar- quis of, 52, 133, 157. Anderson v. Anderson, 90, 271. Anderson T. Berry, 256. Bogle v., 263. V. Cadell, 83. Campbell v., 36, 265, 307. V. Gill, 10, 12, 20, 833. Gordon v., 96, 211, 217. Guthrie V , 339. . Hamilton v., 300. '- Mead v., 180. Miller v., 228. Andrew v. Murdoch, 342. Angus, Buchanan v., 179. V. Manson, 54. V. Montgomerie, 74. Anstruther v. Anstruther, 83, 126, 132, 177. Cairns v., 4. V. East Fife Ry. Co., 205. Haldane v., 89, 90. i Renton v., 115. Arbuckle v. Innes, 74. V. Taylor, lOO, 247, 343. Arbuthnot, Ainslie v. 263. V. Gibson, 232. Arbuthnot, Lord, v. Gillies, 208. Morison t., 233. Sime v., 25, 183, 255. V. Spottiswood, 8. Viscount, V. Scott, 293. Argyll, Duke of, v. Earl of Breadal- bane, 312. V. Lament, 311. V. Macalister, 318. Armour, Galbreath v., 267. Amot V. Brown, 237. V. HiU, 85. V. Stewart, 287. Arratt v. Wilson, 20, 318. Arrol V. Spaden, 337. Arrot V. Ker, 63. Arthur v. Gourlay, 189. — — Hastie v., 287. Astley T. Taylor, 251. AthoU, Duke of, Dalgliesh v., 291. Keir v., 211. Robertson v., 23, 164, 283, 299. V. Torrie, 331. Auchie, Spence v., 287. Auchindacby v. Grant, 143. Auchterarder, Presb. of, v. Earl of Kinnoul, 96, 253. Auld v. Mags, of Ayr, 181, 241. Ayr, Mags, of, Auld v., 181, 241. Ay ton V. Colvill, 172. Monypenny v., 143. Aytoun, Earl of Rosslyn v., 275. INDEX OF CASES. XI Baillie v. Baillie, 20. ~ — Boyes v., 196. V. Chalmers, 188. Chatto v., 169. (Clyne's Trs.) v. Stewart, 20, 39, 341. (Clyne's Trs.) v. Edinburgh Oil Gas Co., 37, 47, 50, 244, 245. Cochrane v., 114, 116. Denham v., 141. Y. Grant, 57, 58. V. Lockhart, 178. V. M'Gibbon, 63. Manson v., 324. Bain v. Blaclc, 245. V. Whitehaven Ry. Co , 10, 18, 35, 159, 277. Baird v. Baird, 132. V. Fortune, 262, 266. V. Neilson, 110, 251. V. Ross, 246, 298. Bald V. Kerr, 28. Balderstone v. Hamilton, 21n. Balfour v. Borthwick, 76. V. Lumsdaine, 143. V. Lyle, 28, 92. V. Malcolm, 95. Middleton v., 281. V. Scott, 176. Ballantyne, White v., 256. Ballendene, Turner v., 83. Balmanno v. M'Nee, 61. Bank of England v. Pulteney, 7C, 295.' Bank of Scotland, Maberley v., 53. , Royal Bank v., 53. Smith v., 80, 107. Swan v., 79. Thomson v., 78. V. Watson, 264, 304. Bannerman v. Bannerman, 177- Barbour, Adamson v., 257. Barclay v. Adam, 124. Bargaddie Coal Co. v. Wark, 149, 342. Barker, Xorth British Insur. Co. v., 37, 199. Barr, Struthers v., 243. Barry v. Waddell, 40, 64. Barstow, Earquharson v., 327. Bartonshill Coal Co. v. M'Guire, 30, 222, 230. V. Reid, 45, 230. Baskett v. Watson, 98. Bateson v. Jamieson, 43. Baxter, Reid v., 34, 106. Bayne, Lord Advocate v., 113, 136 J40, 141. V. Campbell, 810. V. Comrs. of Forf. Estates, 145. V. Kyd, 243. V. Earl of Sutherland, 3. V. Walker, 208. Beath, Campbell v., 243. Belches, Moore v., 241. Belhaven, Lord, v. Caledonian Ry. Co., 232. Bell, Agnew v., 199. Leith Bank v., 79. Low v., 55. V. Mylne, 14, 294. Stewart v., 215. V. Willison, 243. Bennet, Hamilton v., 337. Bennett, Crauford v., 104. v. M'Lachlan, 61. Beresford, Menzies v., 118, 181. Berry, Allen v., 2l7. Anderson v., 256. Ferrier v., 59, 64. V. Stewart, 292. Bethune, M'Lean v., .'>7, 63. Beveridge v. Smith, 62. Bickerdyke, Sharpe v., 49. Billers v. Duke of Norfolk, 35, 64, 247. Bingham, Ommaney v.. Ill, 187. Birnie v. Weir, 289. Black V. Campbell, 5, 232. CuUen v., 38. Cadell v., 99. V. Gordon, 143. — w Bain v., 245. M'Call v., 263. Black's Trs., Miller v., 82, 320, 321. Blackwood, Cathcart v., 159. V. Allan, 198. V. Hamilton, 269. Blaikie, Aberdeen Ry. Co. v., 45,- 278. Blair v. Douglas, 242. Manners v., 98. '- Murray v., 152. Philips V. 286. Watt v., 100. Blane v. Earl of Cassilis, 20, 173. Blantyre, Lord, Cochrane v., 43, 69, 283. V. Currie, 238. V. Earl of Wemyss, 316. Bogle, Gillespie v., 22. Gordon v., 72. 12 xu INDEX OF CASES. Bogle V. Coch»ane, 128. Smith v., 301. V. Anderson, 263. Brown v., 301. Bonar v. M'Donald, 80. Bontine, Cranstoun v., 55. Graham v., 126, 140, 142, 311. Booth V. Booth, 334. Pentland v., 209. Borrows v. Colqiihon, 213. Borthwick, Balfour v., 76. T. Borthwick, 140. Boswall V. Morrison, 287. Inglis v., 298. Boswell, Hamilton v., 172, 189, 195. Montgomerie v , 14. Boulton V. Mansfield, 250. Bovill, Dixon v., 17. Boyd V. Steel, 89. ■ Lord, Lord Advocate v., 162. Boyes v. Baillie, 196. V. Waring, 1. Boyle, Taylor v., 209. Boyter, Rintoul v., 25, 69. Brack v. Johnston, 110, 156. Brand v. Camming, 11, 157. V. Kennedy, 242. M'Latchie v., 146. Brander, Dickson v., 260. Breadalbane, Earl of, v. Drfke of Argyll, 812. V. Earl of Caithness, 283. V. Innes, 254. Livingstone v., 164. V. Menzies, 3, 232, 267. V. Reay, 157. Russell v., .53, 295. Sinclair v., 262. Marquis of, v. Campbell, 120, 125. ■ v. Marquis of Chandos, -177, 224. V. M'Gregor, 29, 32. V. Sinclair, 262. Brebner v. Haliburton, 67- Paton v., 310. Bremner v. Campbell, 7, 81, 233. V. Kerr, 44, 78. . York Buildings Co. v., 281. Bridges, Fordyce v., 178. Brierly, Macintosh v., 265. British Linen Co. v. Caledonian Ins. Co., 54, 218. Brock, Cabbell v., 3, 34, 213. V. Macallum, 56. Brodie v. Brodie, 339. Brodie, Dunbar v., 292. Gordon v., 11. Grant v., 265. Scott v., 214. T. Sinclair, 31, 43. Bromfield, Paterson v., 114. Brown v. Lord Advocate, 309. v. Annandale, 251. . Arnot v., 237. • r. ^ogle, 301. Brown's Trs. v., 160, 284. Campbell v., 95. V. Chalmers, 85. Duff v., 91. Easton v., 308. Elmsley v., 313. v. Ewing, 36. Goodwin v., 58. Hall v., 203. Hepburn v., 192. Jeffrey v. 26, 62, 303. Lang v., 48. Macgregor v., 120. V. Maxwell, 203. ■ Moniepennie v., 106. V. Earl of Morton, 97. V. Murdoch, 304. V. Paterson's Trs., 10, 66. Peddle v., 87, 279. V. Sinclair, 285. V. Smith, 204. Stein's Assignees v., 35, 156. Syme v., 148. Young v., 229. Bruce v. Bruce, 107, 111, 124,125, 181, 218, 260, 309. -' — V. Carstairs, 133. V. Clesrhorns, 89. - V. M'Leod, 92. Napier v., 77. V. Ogilvie, 243. V. Ross, 329. V. Stewart, 52. Brunton, Douglas v., 56. Bryce v. Graham, 229. Bryden v. Bryden, 328. Brydon v. Stewart, 17, 229. Buccleuch, Duke of, v. Hyslop, 68, 130, 131. Montgomerie v., 131. Buchan, Earl of, Duff v., 283. V. Erskine, 127. Buchan, M'Douall v., 151. Buchanan v. Angus, 179, 180. ^— Carriok v., 120, 182. V. Crawford, 337. INDEX OF CASES. XUl Buchanan v. Douglas, 28. Hill v., 286. V. Morris, 243. Tiiomson v., 201. Budge v. Mage, of Edinburgh, 72- BuUerwell, Murray v., 173. Buntein, Smollett v., 73. Burden v. Smith, 190, 223. Burghs, Convention of, v. Cunning- ham, 44, 93. Burnes v. Penneli, 10, 245, 248. Burnet v. Mags, of Aberdeen, 214. V. Burnet, 167. V. Knowles, 247. Burnett, Jack v., 82. ■ — - Spottiswoode v., 311. Bums, Ewing v., 165, 258. Hill v., 82. ■ V. Stewart, 216. Burnton, WUson v., 159. Burrows, Earl of Traquair v., 13, 76, 158. Burt, Maodonald v., 229. Burys, Sharp v., 49. Bushby, Earl of Dundonald v., 280. V. Hodgson, 67. Butchers, Corporation of, v. Mags, of Edinburgh, 71. Bute, Marquis of, v. Cooper, 205, 269. V. Wortley, 170. Butler, Murray v., 76. Bywater v. The Crown, 26. Cabbell v. Brock, 3, 34, 213. Cadell, Anderson v., 83. V. Black, 99. Northland v., 5, 226, 227. Paul v., 226. V. Robertson, 92. Cairncross v. Lorimer, 110. Cairns v. Anstruther, 4. Carre v. 129. — — Mansfield v., 56. Marianski v., 16, 17, 149. Caithness, Earl of, Earl of Breadal- bane v., 283. V. Countess of, 189. Calder v. Aitchison, 264. V. Provan, 65. Caledonian Canal Co. v. Grant, 27-5. Caledonian Ins. Co., British Linen Co. v., 54, 218. Caledonian and Dumbartonshire Ry. Co. V. Mags, of Helensburgh, 45, 278. By. Co. V. Lord Belhaven, 232. Caledonian Ry. Co. v. Colt, 279. V. Hamilton, 205. V. Lockhart, 50. V. Ogilvy, 278. V. Sprot, 232. Callander, Gray v., 51. Hepburn v., 316. Callender, Clark v., 29, 288. Justice v., 330. Galium V. Ferrier, 229. Cameron, M'Donell v., 211, 213, 301. V. Mackie, 43, 157. M'Lean v., 211. Campbell, Alston v., 200. V. Anderson, 36, 265, 307. Bayne v., 310. V. Beath, 243. Black v., 5, 232. Marquis of Breadalbane t., 120, 125. Bremner v., 7, 81, 233. V. Brown, 93. V. Campbell, 8, 16, 29, 32, 42,t 177, 225, 245, 260, 335. Campbell's Trs. v., 268. V. Cochrane, 186. Cooper v., 99. Craufurd v., 254. Dixon v., 12, 84. Edinburgh and Glasgow Ry. Co. v., 280. Elphinstone v., 231. Gordon v., 199, 323. Grant v., 52, 165. V. Halkett, 105. V. Hamilton, 203. Harley v., 312. . V. Hastie, 71- Honyman v., 186. V. Hume, 231. Kennedy v., 184 . V. Lang, 331. M'Callum v., 168, 224. MacdougaU v., 13, 259. M'Ewan v., 279. V. M'Farlane, 207. M'Millan v., 39, 114. V. M'Nair, 62. V. Pollock, 155, 328. Rankenv., 102. V. Russell, 201. V. Sassen, 189. V. Shepherd, 56. Speirs v., 324. V. SteeleiSll.. XIV INDEX OF CASES. Camplijell v. Stein, 158, 303. Stirling v., 253, 295. Wallace v., 243. V. Walsh, 61. Campbell's Trs. v. Campbell, 268. Thomson v., 222, 224. Canisonv. Marshall, 283. Canongate, Mags, of, Ritchie v., 75. CardroBS, Lady, Hamilton v., 233. Cargill v. Craigie, 91. Carlyle, Murray v., 170. Carmicliael, Union Canal Go. v., 7, 28, 87. Y. Carmichael, 142. Carnegie, Stuart v., 51. Carnegy v. Scott, 69, 212. Carre v. Cairns, 129. V. Haldane, 107. Earl of Wemyss v., 38, 66, . 183. Carrick v. Buchanan, 120, 182. . V. Martin, 230. Oarron Co. v. Ogilvie, 297. Carruthers, Majendie v., 168. Patten v., 264. Carse v. Lord Advocate, 94. Carstairs, Bruce v., 133. Greig v., 312. Casamajor, Pearson v., 329, 337, 358. Cassills, Earl of, Blane v., 21, 173. -. Cathcart v., 167, 173, 174. V. Hamilton, 120. Catanach v. Gordon, 85. Cathcart v. Blackwood, 159. V. Earl of Cassillis, 167, 173, 174. V. Cathcart, 27, 125. Gammell v., 123. Lord, V. Shaw, 129, 133. Catterns v. Tennent, 210, 301. Chalmers v. Alison's Crs., 313. BaUlie v., 188. Brown v., 85. Cunningham v., 12, 33. Douglas v., 227. Johnstone v., 240. Parkhill v., 235. T. Ross, 325. Chandos, Marquis of. Marquis of Breadalbane v., 177, 224. Charteris t. Lord Advocate, 336. V. Earl of Hyndford, 327. Murray v., 70. Chatto V. Baillie, 169. Cheap V. Aiton, 247. Cheape, Johnsione v., 48. Cheisly, Lockhart v., 280. Chippendale, Curtis v., 61. Chisholm, Eraser v., 266. Christie, Royal Bank v., 246, 250. Thomson v., 323. Webster v., 70. Clark V. Callender, 29, 288. V. Glasgow AsB. Co., 32, 313. V. Gordon, 36. V. Earl of Home, 22. Robinson v., 203. V. Sim, 221. Clason V. Cleland, 11, 110, 30.i. Clayton v. Lowthian, 177. Cleghorn, Bruce v., 89. Dempster v. , 298. Dewar v., 41, 128. Eliott v., 139. Cleland v. Clason, 11, 110, 305. V. Paterson, 14. v. Weir, 16, 19, 29, 41, loO. Clephane v. Mags, of Edinburgh, 4.'^, 81. Clerk V. Adam, 246. V. Gordon, 175. Clyde Trs. v. Duncan, 233. Clydesdale, Marquis of, v. Earl of Dundonald, 166, 176. Clyne v. Sclater, 244. Clyne's Trs. v, Clyne, 8, 27, 40, 44, 104. v. Duimet, 27, 31, 32, 51. Coats, Reid v., 67. Whytlaw v.^ 242. Cochran, Scott v., 107, 212. Cochrane v. Baillie, 114, 116. V. Lord Blantyre, 43, 69, 283. Bogle v., 128. Campbell v., 186. V. Craig, 198, 228. ■ Craig v., 311. Dunlop v., 89. Ewart v., 297. Hunter v., 244. v. Earl of Minto, Neilson v., 259. V. Ramsay, 174. — — - Russell v., 325. Cockburn v. Cockburn, Fairholm v., 280, 322. V. Hamilton, 19, 150, 189, 259. ■ Heriot's Hospital v., 34, 312. Paterson v., 69. Codrington v. Johnstone, 175. Cogau V. Lyon, 6, 183. ,267. ,274. INDEX OF CASES. College of Justice, Mags, of Edin- burgh v., 257. Collier V. Stewart, 64. Collins, North British Bank v., 28, 245. ■ ■ V. Young, 250. Colquhon, Borrows v., 213. Douglas v., 232. Colquhoun v. Corbet, 48. T. Colquhoun, 142. y. Mags, of Dumbarton, 290. Duke of Montrose v., 311. Colt, Caledonian Ry. Co. t., 279. Coltart V. Frazer, 318. V. Maxwell, 310, 313. ColvUl, Ayton v., 172. Colville V. Colville, 26, 118, 182. Commercial Bank v. Pollock's Trs., 4. V. Pollock, 53. V. Rhind, 45, 54. Commissioners of Forfeited Estates, Bayne v., 145. V. Drummond, 152, 193, 238. V. Erskine, 52. V. Farquharson, 306. V. Gordon, 306. V. Grierson, 161. V. Duke of Hamilton, 161. V. Hog, 162. V. Lockhart, 94, 105. V. Macdonald, 306. V. Mackenzie, 161, 237, 306. V. Ogilvie, 161. Paterson v., 162. V. Earl of Ruglen, 135, 136. ■ V. Stevenson, 162 V. Stewart, 161, 162. Commissioners of Woods and Forests, Gammell v., 293, Congalton, Hepburn v., 124. Cooper, Marquis of Bute v. , 205, 269. V. Campbell, 99. V. Hamilton, 13. V. Hunter, 280. Coopers v. Kerr, 100. Corbet, Colquhoun v., 48. Porterfleld v., 44, 134, 145, 274. Coulter, M'Nair v., 200. Court, Roberts v., 206. Coutts, Tailors of Aberdeen v., 7, 27, 37, 40, 220, 282. Crauford v., 102, 179. Munro v., 332. Cowan, TumbuU v., 224, 325. Cox V. Stead, 26, 179. Cradock v. Pyper, 324. Craig, Cochrane v., 198, 228. V. Cochrane, 311. r. Douglas, 249. V. Duft'us, 14. Galloway v., 46, 194. V. Duke of Hamilton, 339. V. Howie, 67. v. Robertson, 275. Walker v., 69. Craig's Crs. v. Craig's Crs., 116. Craigdallie v. Aikman, 1 10. Craigie, Hoggan v., 186. V. Mackenzie, 216. V. Mill, 307. Craik v. Craik, 112, 133. Cranstoun v. Bontine, 55. Lady, t. Scott, 191. Crauford v. Bennet, 104. V. Coutts, 102, 179. Gordon v., 163. Craufuird v. Torrance, 137. Craufurd v. Campbell, 254. T. Craufurd, 233. V. Dixon, 14, 84. V. MacCormack, 5, 104. V. Reid, 229. Crawford, Buchanan v., 337. ■ V. Lord Garnock, 140. — - Stewart v., 232. Crawfurd, Weir v., 294. Creighton v. Rankin, 3, 4, 7, 79, 327. Russell v., 68. Crichton v. Grierson, 82, 94. Grie, Ferguson v., 74. Crowder v. Watson, 230. Crown, The, Bywater v., 26. Cruickshank v. Cruickshank, 192, 322 CuUen v. Black, 38. . Ewing v., 16, 188, 227. Mitchell v., 105. Mags, of, Rutherford v., 87. T. Sprot, 253. V. Thomson's Trs., 249. Cuming v. Presb. of Aberdeen, 108, 328. V. Ferguson, 86. Kennedy t., 46, 274. v. Pantoun, 8, 46, 295, 327. Gumming, Brand v., 11, 157. Irvine v., 135. Cuninghame v. Hamilton, 269. Cunningham v. Chalmers, 12, 33. Convention of Burghs v., 44, 93. XVI INDEX OF CASES. Canningham v. Cunningham, 185. v. Dod's Trs., 64, 302. Hendricks v., 23, 65. V. Kinnear, 250. M'Craw v., 3.5, 2.57. V. M'Leod, 90, 108, 192. Moncrieff v , 124. V. Veitch, 72. . T. Warner, 84, 243. V. Whiteford, 103. Cunningharae v. Canninghame, 113. Dickson v., 123, 136, 181. Grieve v., 212. Tasker v., 202. V. Wardrobe,, 253. Cunyngham v. Cunyngham, 167. Cunynghame v. Higgins, 326. Curie, Guthrie v., 68. Scott v., 7, 31, 302. Currie, Lord Blantyre v., 238. Curtis V. Chippendale, 61. Leslie v., 303. Cuthbert v. Paterson, 114. V. Mackenzie, 188, 228. Cuthbertson, Dick v., 44, 59. Gardner v., 58. Young v., 331. Cutlar V. Maxwell, 105. Daer, Lord, v. Stewart, 181, 231. Dalgleish, Earlof Kinnoulv., 183, 290. V. Duke of Athole, 291. Dalhousie, Countess of, v. M'Douall, 225. Earl of, Dunlop v., 210. Dallas y. Dallas, 255. Dalrymple v. Dalrymple, 184. ■ Douglass v., 319. V. FuUerton, 143. V. Hope, 169. V. Hunter, 117. Thorn v., 85. Darley, Kippen v., 41, 273. Darling, Adamson v., 324. ■ Watson v., 320. Davidson t. Fleming, 183, 231. Kyde v., 179. V. Lockwood, 21, 43, 59. Mackay v., 103, 257. V. Robertson, 66, 248. V. Sinclair, 123. • V. TuUoch, 29, 164, 249. — V. Watson, 233, 259. Davies, Selkrig v., 160. Dawson v. Mags, of Glasgow, 70, 71, 318. Deas V. Mags, of Edinburgh, 339. De La Motte v. Jardine, 146. Delvalle v. York Buildings Co., 158. Dempster v. Dempster, 114. V. Cleghorn, 298. Denham v. Baillie, 141. V. Lookhart, 124. Stewart v., 139, 141. Dennistouft v. Lillie, 202. Denny v. Marquis of Lorn, 74. De Voz, Allan v., 86. Dewar t. Cleghorn, 41, 128. V. M'Kinnon, 36, 153,. 339. Dick, Lord Advocate v., 252. V. Cuthbertson, 44, 59. V. Donald, 63. Dickson V. Brander, 260. V. Cuninghame, 123, 136, 181. V. Dickson, 135. Mags, of Edinburgh v., 311. Hotchkis v., 108, 219. Hunter v., 194. Kerr v., 20, 263. — — Syme v., 118. Wight v., 84. Dill V. Earl of Haddington, 192, 339. Dingwall v. Dingwall, 128. V. Farquharson, 298. V. Gardiner, 241. Mags, of, V. Mackenzie, 204, 285, 293. T. Munro, 69. Dixon V. Bovill, 17, 288. V. Campbell, 12, 84. Crautiird v., 14, 84. . V. Dixon, 39, 250, 335. Fisher v., 179, 194, 224. V. Fisher, 274, 284. Graham v., 291. V. Grahame, 10, 32, 198, 266. V. Monkland Railway Co., 276. ~ ■ V. Monkland Canal Co., 1, 12, 145, 275. Dobie, Liddesdale v., 158, 160. Dod's Trs., Cunningham v., 64, 302. Doe d. Birtwhistle v. Vardill, 226. Doig V. Sangster, 289. Dolphin V. Robins, 197. Don V. Don, 123. V. Lippmann, 158. Donald, Dick v., 63. V. Kirkcaldy, 269. Donaldson, Findlay v., 10. V. Haldane, 221. V. Lord Perth, 183, 226, 230. INDEX OF CASES. XVll Dougal, Dundee Harbour Trs. v., 41, 268. Douglas, Lord Advocate v., 252. Blair v., 242. V. Brunton, 56. Buchanan v., 28. V. Chalmers, 227. V. Colquhon, 232. Craig v., 249. ' V. Douglas, 312. ■ Dowie v., 72, 99. Ferguson v., 65, 67, 157. V. Glassford, 119, 122. Gordon v., 36, 250. — ^' Gray v., 242. Duke of Hamilton v., 260. V. Duke of Hamilton, 36, 101, 146, 167, 169, 198, 224. Megget v., 28. — — V. Montgomerie, 151, 175. V. Earl of Morton, 101. V. Murray, 105. — — Duke of Queensberry v., 319. Riddick v., 80. ■ V. Scougall, 203. V. Wilson, 89. Duke of, V. Lord Strathnaver, 141. V. Lockhart, 206. Douglass V. Grant, 165. V. Dalrymple, 319. Dove, Pringle v , 255. Dowie V. Douglas, 72, 99. Downe v. Pitcairn, 3, 27, 106, 248. Downie, Innes v., 1. Drew V. Drew, 48. National Exchange Co. v., 7,248. Drummond, Lord Advocate v., 271, 307. V. Lord Advocate, 109. Comrs. of Forf. Estates v., 152, 193, 238. V. Drummond, 160, 168. Fleming v., 231. V. Hunter, 249, 270. Munro v., 136. Pitcairn v., 47. V. Ross, 53, 136. Walker v., 253. Drysdale, Wemyss v., 217. Dudgeon v. Thompson, 14, 30, 218. Duff V. Brown, 91. . V. Earl of Buchan, 283. . T. Earl of Fife, 17, 106, 107, 116, 143. V. Fraser, 39, 16^, 291. Duif V. Gordon, 282. V. Grant, 266. V. Mags, of Inverness, 265. Lumsden v., 15, 29. V. Henderson, 235. Hunter v , 44, 158. Duffus, Craig v., 14. Duggan V. Wight, 183, 319. Duguid V. Mitchells, 13, 32, 304. V. M'Leish, 286. Dumbarton, Mags, of, Colquhoun v., 290. Dumbreck v. Stevenson, 236. Dumfries, Commissioners of Police of, Newall v., 308. Dun, Macalister v., 184. Dunbar v. Brodie, 292. V. Harvey, 147. Mags, of, V. Heritors of, 257, 305. Earl of Sutherland v., 21. Duncan v. Lord Advocate, 843. Clyde Trs. v., 233. V. Findlater, 16, 44, 101, 222. V. Fowke, 335. Hume v., 261. V, Houston, 57. Low v., 55. V. Ritchie, 255. Stirling v., 264. Dundas v. Lord Advocate, 94, 97, 2.53 V. Dundas, 156, 172. Ogilvie v., 155, 222. Dundee Harbour Trs. v. Dougal, 41, 268. Mags, of, V. Lindsay, 75. Mags, of, V. Morris, 43, 82, 333. Mags, of, V. Presbytery of, 38, 41, 81. Mags, of, Smart v., 268. ShippingCo.,Flowerdewv.,244. Dundonald, Earl of, v. Bushby, 280. Marquis of Clydesdale v., 166, 176. Preston v., 282. Dunglas, Lord, Off. of State v., 35, 42, 98; Dunlop V. Agnew, 26, 38. v. Cochrane, 89. V. Earl of Dalhousie, 210. Fleming v., 28, 75. V. Higgins, 286, 289. V. Lambert, 288. Mackenzie v., 17, 288, 341. Moncreiff v., 247. XV311 INDEX OF CASES. Dunlop, Speir v , 16, 55, 60, 61. . Stewart v., 201. Todd v., 268. Dunn, Gordon v., 25, 315. Hamilton v., 237. V. M'Gavin & Co., 288. Stirling v., 33, 132. Dunnet, Clyne's Trs. v., 27, 31, 32, 51. Dunse, Presb. of, v. Hay, 252. Durham v. Durham, 169. ■ V. Lundine, 314. Du Roveroy v. Mackenzie, 23, 271. Dutch East India Co., Hamilton v., 159. Dyce V. Lady James Hay, 298. Dyer, Grant v., 188, 328. Dykes v. Struthers, 78. Dysart, Mags, of, St Clair v., 297. Earl V. Vass, 226. Easton v. Brown, 308. V. Stirling, 314. Eaton T. Murdoch, 77. Edgar v. Maxwell, 169. V. Miller, 308. Edgars, Robinson v., 76. Edinburgh, Commissioners of Supply for, Advocate-General v., 42, 327. Edinburgh, Fleshers of, v. Mags, of, 71. Edinburgh, Mags, of. Bridge v. , 72. Corporation of Butchers v., 71. ■ Clephane v., 43, 81. V. College of Justice, 257- Deas v., 339. V. Dickson, 311. Greenshields v., 26, 110. Luke v., 87, 253. V. M'Farlane, 275. Milne v., 46, 47. V. Sec. for War, 266. Wishart v., 239. Edinburgh Ministers of, v. Lord Pro vost 72 Oil Gas' Co., Baillie (Clyne's Trs.) v., 37, 47, 50, 244, 245. University of, v. Mags, of, 85. Water Co. v. Hay, 258, 306. Water Co. v. Waugh, 297- and Dalkeith Ry. Co. v. Wauchope, 2, 276. and Glasgow Ry. Co , Adamson v., 258. and Glasgow Ry. Co. v. Camp- bell, 280. Edinburgh and Glasgow Ry. Co. v. Mags, of Linlithgow, 11, 21, 28, 45, 73, 184, 279. and Glasgow Ry. Co. t. Stirlmg and Dunfermline Ry. Co., 278, 305. and Glasgow Union Canal Co., Johnston v., 341. Perth, and Dundee Ry. Co. v. Le«en, 278. Perth, and Dundee By. Co. v. Philip, 279. Edmond v. Gordon, 62, 296. Edmondstone v. Edmondstone, 118. . Morehead v., 197, 265. Eglinton, Earl of, Lord Montgoraerie v., 122, 126. Montgomerie v., 144. Elder, Macdonald v., 88, 146. Stewart v., 323. Elgin, Earl of, v. Halket, 48, 50, 85. Earl of, v. M'Lean, 241. Earl of, V. WeUwood, 131. Ministers of, Innes v., 26, 238. Elibank, Lord, v. Murray, 119. Elliott V. Cleghom, 139. Johnstone's Trs. v., 5. V. Pott, 69, 131. Hewit v., 60. Earl of Minto v., 177. v. Pringle, 231. Wilson v., 139, 200. Ellis V. Henderson, 44, 93. Elmsley v. Brown, 313. Elphinston, Haldane v., 205. Elphinstone v. Campbell, 231. Fallijeffv., 65. Erskine, Earl of Buchan v., 127. Gomrs. of Forfeited Estates v., 52. Earl of Mar v., 133. ■ Mags, of Montrose v., 33. Lord, V. Mags, of Stirling, 291. Syme v., 310. Esten, Duke of Hamilton v., 131. Ettles, Robertson v., 66. Evans v. M'Loughlan, 95, 207- Ewart V. Cochrane, 297. Stirling v. 314. Ewen V. Mags, of Montrose, 82, 272. Ewing, Brown v., 36. V. Burns, 165, 258. - V. Cullen, 16, 188, 227. V. Gilchrist, 64. and Morrison v. Glasgow Police Comrs., 72. INDEX OF CASES. XIX Ewing V. Lawrie, 63. Earl of Strathmore v., 66, 188. V. Wallace, 285. — — V. Wallace, 39. Fairholm v. Cockburn, 280, 822. Fairie v. Watson, 86. Fairlie v. Fairlie, 195. Taylor v. 34, 64, 213. Falconar v. Musliet, 116. Falconer r. King's College, Aberdeen, 339. V. Falconer, 339. Lord, V. Lawson, 214. Lord, V. Taylor, 340. Fallijeff v. Elphinstone, 65. Parish, Mags, of Annan v., 30, 72. Farnie v. Trotter, 236. Farquhar v. Earl of Loudon, 311. Farquharson v. Earl of Aboyne, 164. Adam v., 120, 127. V. Barstow, 327. Comrs. of Forfeited Estates v.. 306. Dingwall v., 298. Mearns v., 166. Farrell, Willcox v., 148. Farries, Stein v., 286. Fenton y. Livingston, 187. Ferguson v. Crie, 74. Cuming v., 86. ■ V. Douglas, 65, 67, 157. Heriot's Hospital v., 312. • T. Earl of KinnouU, 93, 101, 253. V. Mossman, 90. York Buildings Co. v., 90. Fergusson v. Fyffe, 148, 206. V. Gillespie, 315. V. Maitland, 163. V. Skirving, 257. Ferrie v. Ferrie, 180, 340. Ferrier v. Alison, 47. V. Berry, 59, 64. Callum v., 229. V. Hector, 208. V. Howden, 30, 32. Hutchinson v., 18, 212. v. Moubray, 27, 30, 197, 281, 296. V. Mudie, 92. Fife, Earl of. Duff v., 17, 106, 107, 116, 143. Innes v., 198. .V. Mackenzie, 191. . ■ Rose v., 88. Fife (East) Ry. Co., Anstruther v., 205. Stevenson v., 178. Findlater, Duncan v., 16, 44, 101, 222. Findlay v. Donaldson, 10. Grant v., 281. Finlayson v. Innes, 197, 208, 300. Finnie t. Glasgow and S. W. Ry. Co., 38, 87, 278, 279. Fisher v. Dixon, 179, 194, 224. Dixon v., 274, 284. Fle'eming, Davidson v., 183, 231. v. Newton, 227. v. Orr, 35, 45, 100. V. Smith, 204. Fleming v. Dunlop, 28, 75. V. Drummond, 231. v. Fleming, 113. . V. M'Nair, 251. Robertson v., 30, 222. V. Thomson, 79. Flowerdew v. Dimdee, &c., Shipping Co., 244. Fogo v. Fogo, 174. V. Mather, 40, 174. Forbes, Abernethie v., 140. Lady, t. Lord Forbes, 52, 19) , 227, 271, 273. V. Forbes, 101. Gibson v., 232, 258. Grant v., 78. ■ Gray v., 32, 34, 321. V. Honeyman, 320. Keith v., 76. Earl of Kintore v., 2'91. V. Livingstone, 83, 266. Lord, Leys v., 15, 18^ • V. Macpherson, 181, 231. ■ Maitland v., 117, 141. Munroe v., 20, 74. V. Shaw, 239. f. Skene, 123, 169.- V. Smyth, 294. Countess of Strathmore v. , 184. Taylor v., 53. V. Wilson, 147, 241. Fordyce v. Bridges, 178. V. Gordon, 295. Porteous v., 150. V. Crs. of York Buildings Co., 1,55. Forlong V. Taylor's Exrs., 192. Forrest v. Harvey, 73. Robb v., 58. Forrester v. Macgregor, 91, 152. INDEX OF CASES. Forrester, Stirling v., 78. Thomson v., 214. Walkei; v., 22. Forster v. Paterson, 38, 183, 242. Forth and Clyde Nav. Co., Tennant v., 40, 276. Fortune, Baird v., 262, 266. Fowke, Duncan v., 335. Frame, Hart v., 221. Frank v. Frank, 107- Fraser v. Lord Advocate, 31. V. Chisholm, 266. Duff v., 39, 163,291. . V. Fraser, 138. V. Gordon, 10. . V. Hill, 19. V. Lord Lovat, 40, 50, 114. . V. Maitland, 12, 209. Lord Saltoun v., 235. . V. Sandilands, 94. Sinclair v., 159. V. Steven's Trs., 321. V. Vans Agnew, 137. . V. Wilson, 282. Frazer v. Lord Advocate, 208. Coltart-v., 318. V. Macdonell, 281. V. Spalding, 177. Fullarton v. Hamilton, 9, 198. Stewart v., 125, -218. FuUerton, Dalrymple v., 143. V. Hamilton, 8, 121, 122. V. Kinloch, 155. Fyfe V. Williamson, 332, 342. Fyffe, Fergusson v., 148, 206. Galbraith v. Galbraith, 18, 174. Whitehead v., 21, 34, 46. Galbreath v. Armour, 267. Galloway v. Craig, 46, 194. Earl of, V. Comrs. of Treasury, 77, 97. Earl of, V. M'Hutchon, 212. Gammell v. Cathcart, 123. V. Comrs. of Woods and Forests, 293. Garden v. Rigg, 65, 105, 205. Gardiner, Dingwall v., 241. Gardner v. Cuthbertsoii, 58. Hunter v., 57. V. Reekie, 74. V. Scott, 44, 261. Gardners, Stewart v., 235, 322. Gardyne, Royal Bank v., 94, 313. Garnock, Lord, Crawford v., 140. Lord, V. Earl of Glasgow,- 140. Gavin, Sea Ins. Co. v., 201. Geddes, Hamilton v., 88. V. Mowat, 58. • V. Pennington , 38, 183, 289. Wallace v., 205, 243. Wilkie v., 203. Geikie v. Morris, 236. Geils V. Geils, 8, 33, 35, 188, 196. Gemmil v. M'Alister, 220, 342. George,«Hunter v., 9, 66. Gibb, Turner v., 266. Gibson, Arbuthnot v., 232. V. Forbes, 232, 258. Heriot's Hospital v., 340. Hutton v., 283. V. Kirkland, 63. V. Maitland, 138. Paul v., 59. V. Ross, 294. V. Rutherglen, 68. Stewart v., 3, 89, 96. Walker v., 109, 274. V. Watson, 256. Gibson-Craig, ilae v., 28. Gilchrist, Ewing v., 64. V. Macadam, 25. Giifillan V. Henderson, 219. Gill, Anderson v., 10, 12, 20, 333. Gillan, Duke of Gordon v. , 315. Gillespie v. Boyle, 22. Ferguson v., 315. Russel, 9. Gillies, Viscount Arbuthnot v., 208. Gillon V. Mackinlay, 147, 251. Girvan, Mackenzie v., 47, 50, 94. Glammis, Lord, v. Paul, 24. Glasgow, Allan v., 319. Airdrie, &c., Ry. Co., Orr v., 12, 246. Assurance Co., Clark v., 32, 313. and S. W. Ry. Co., Finnie v., 38, 87, 278, 279. Barrhead, &c., Ry. Co. v. Nits- hill Coal Co., 277. Earl of, Lord Garnock v., 140. Earl qf, v. Hurlet AJum Co., 18, 85. Earl of, Miller v., 239. Fleshers of, v. Nelson, 38, 93. Mags, of, Aitchison v., 209. 'Mags, of, Dawson v., 70, 71, 318. Mags, of, V. Murdoch, 308. Police Comrs., Ewing and Mor- rison v., 72. INDEX OF CASES. Glasgow, Unirersity of, v. Hamilton, 310. Univ, of, V. Faculty of Physi- cians, 37, 80, 93. Glasgow's Trustees, Allan v., 179. Glass V. Hunter, 308. Pentlaud v., 57. Watson v., 133, 170. Glassell v. Earl of Wemyss, 91. Glassford, Douglas v., 119, 122. Glencairn, Countess of, Bruce v., 133. Glendonwyn v. Gordon, 96, 274. Napier v., 61. Glennie, M'Phail v., 265. Glenny, Weir v., 204, 267, 300. Gloag, Stewart v., 6, 30, 245. Globe Insurance Co. v. Mackenzie, 326. Glover T. Glover, 47. Glynn, Henderson v., 57, 76. Goddard, Stirling v., 202. V. Swinton, 159. Goldie V. Oswald, 247. GoUan v. Gollan, 109. Goodwin v. Brown, 58. Gordon, Lord Advocate v., 163, 183 V. Anderson, 96, 211, 217- Black v., 143. V. Bog-le, 72. . v. Brodie, 11. V. Campbell, 199, 323. Catanach v., 85. Clark v., 36, 175. Comrs. of Forfeited Estates v., 806. V. Crauford, 163. V. Douglas, 36, 250. . . Duff v., 282. V. Dunn, 25, 31,5. V. Edmond, 62, 296. Fordyce v., 295. Eraser v., 4, 20. ■ Glendonwyn v., 96, 274. V. Gordon, 12. . V. Graham, 18, 210. V. Howden, 254. T. Hughes, 52. . Hughes v., 330. Hyslop v., 4, 20, 52. V. Earl of Kinnoul, 240. • Macintosh v., 152. ■ Maitland.T., 68, 109, 273. . v. Marjoribanks, 340. Maxwell v., 238, 239. Napier v., 164, 236. T. Ogilvie, 167. Gordon r. Robertson, 217. Sutherland v., 153. Marchioness of Titchfield v., 118. V. Tough, 319. V. Urquhart, 190. Duke of, V. Gillan, 315. Duke of, V. Gordon, 283. Duke of, V. Grant, 290. Duke of. Grant v., 293. Duke of, V. Earl of Moray, 292. Duke of, Exrs. of, Innes v., 69, 96, 132. Gourlay, Arthur v., 189. Ivory v., 147. Thomson v., 273. Govan v. Simpson, 191. Graham v. Alison, 221. V. Bontine, 126, 140, 142, 311. Bryce v., 229. V. Dixon, 291. V. Countess of Glencairn, 133. Gordon v., 18, 210. Gray t., 220. v. Henderson, i, 188, 250. Keble v., 37, 150, 205. V. Ker,234. v. Mackay, 95. J ■ V. Maxwell, 9. Murray v., 128. Robertson v., 5. V. Russell, 335. ;. Stewart v., 112, 115. Stration v., 211, 216. V. Templer, 325. V. Watt, 262. V. Weir, 309. T. Writers to the Signet, 93. Grahame, Dixon v., 10, 32, 198, 266. V. Grahame, 10, 25, 34, 142, 170, 188. V. Jolly, 44, 138, 216. V. M'Nair, 202. Grahams v. Graham, 153. Grant, Auchindachy v., 143. Baillie v., 67, 58. Brodie v., 265. , Caledonian Canal Co. v., 275. V. Campbell, 52, 16,5. Douglass v., 165. Duff v., 266. V. Dyer, 188, 328. V. Findlay, 281. ■ V. -Forbes, 78. Duke of Gordon v., 290. INDEX OF CAHES. Grant v. Duke of Gordon, 293. Grove v., 247. Hill v., 106, 157. Leslie v., 24. ■ V. Earl of Morton, 212. ■ Murray v., 41, 150, 305. V. Pedie, 111. r. Shepherd, 109, 170. ■ Stoddart v., 333. • T. Sutherland, 176. Walker v., 210. Gray v. Callander, 51. ' v. Douglas, 242. V. Forbes, 83, 24, 321. y. Graham, 220. ■ V. Duke of Hamilton, 155. Lutwidge v., 302. Y. M'Nair, 49. V. Ogilvie, 239. Stirling v., 70. Lord, V. Mags, of Pertli, 292. Grazier, Gregory v. , 193, 259. Great Northern Ry. Co., Inglis v., 19, 278. Greenhill t. Aitken, 196. Greenock, Mags, of, Shaws Water Co. v., 41, 73. Mags of, Stewart v., 3. Marine Ins. Co., Stewart v ,20i. Trs. of, Y. Shaws Water Co., 73, 327. Greenshields v. Mags, of Edinburgh, 26, 110. Gregory v. Grazier, 193, 259. Greig v. Carstairs, 312. V. Johnston, 336. Wilkie v., 264. Grier v. Mitchell, 149. Grierson, Crichton v., 82, 94. V. Lagg, 36. Lapsley v., 186. Grieve v. Cunninghame, 212. V. Wilson, 145. Grosset, Riddel v., 215. V. Murray, 67. V. Ogilvie, 304. Grove v. Grant, 247. Guthrie v. Anderson, 339. V. Curl, 58. Gwydir, Lord, Miller v., 216. ^ Lady, Pentland v., 37, 340. Gye V. Haldane, 47. Habkin v. Hog, 46, 242. Haddington, Earl of. Dill v., 192, 339. Earl of, Duke of Hamilton v ,325. Haddington, Earl of, Officers of State v., 97, 147. Earl of Wemyss v., 271. Hadinton, Countess of, Richardson v., 158. Haig V. Hannay, 302. Hume v., 149. V. Napier, 287. Haldane v. Faculty of Advocates, 96. V. Anstruther, 89, 90. Carre v., 107. Donaldson v , 221. V. Elphinston, 205. Gye v., 47. V. Earl Marischal, 26. York Buildings Co. v., 157. Haliburton, Brebner v., 67. Halket, Campbell v., 105. :- Earl of Elgin v., 48, 50, 85. V. Nisbet's Trs., 34, 317. Wedderbum v., 167. Hall, Stewart v., 303. V. Brown, 203. v. Ross, 208. Halliday, Maxwell v., 338. Hamilton, Lord Advocate v., 97. V. Anderson, 300. Balderstone v., 215. — v. Bennet, 337- . ■ Blackwood v., 269. V. Boswell, 172, 189, 195. Caledonian Ry. Co. v., 205. Campbell v., 203. V. Lady Cardross, 233. Earl of Cassilis v., 120. Cockburn v , 19, 150, 189, 259. Cooper v., 13. Cuninghame v., 269. V. Douglas, 260. V. Dunn, 237. V. Dutch East India Co., 159. FuUarton v., 9, 198. FuUerton v., 8, 121, 122. V. Geddes, 88. University of Glasgow, 310. 187. V. Hamilton, 153, 166, 177, ■ V. Henderson, 94. V. Littlejohn, 42, 326. MBrair v., 4, 20, 263. Ralston v., 42, 154, 236. • V. Richmond, 13. Tennant v., 148. V. Watson, 80. ■ Wood v., 302. V. Wright, 108, 323. INDEX OF CASES. xxm Hamilton, Duchess of, v. Duke of, 11, 227. Hamilton, Duke of, v. Aikman, 6, 298, 299. T. Craig, 339. Comrs. of Forfeited Estates v., 161. V. Douglas, 36, 101, 146, 167, 169, 198, 224. Duchess of V. 11, 227, V. Esten, 131. Gray v., 155. V. Earl of Haddington, 32.i. ■ • V. Hamilton, 317. ■ V. Mags, of, 40, 239. V. Mather, 4, 316. Earl of Selkirk v., 86. V. Scott, 240, 241. Hance, Orr v., 63. Hannay, Haig v., 302. Macpherson v., 55. Hare, Nasmyth v., 332. Harford v. Harvey, 6. Rohertson v., 31, 286, 289, 301. Harley v. Campbell, 312. Harlow v. Merchant Maiden Hospi- tal, 238. Harper, Inglis v., 333. Hart V. Frame, 221. Harvey, Dunbar v., 147. Forrest v., 72. Harford v., 6. Reid v., 202. Harvie, Rodgers v., 331. Hastie v. Arthur, 287. . Campbell v., 71. Melrose v., 29, 288. Hastings v. Marquis of Hastings, 41, 168. Haswell, Marquis of Lothian v., 74. Hathom, Linwood v., 33, 229. Hay, Lady James, King's College, Aberdeen v., 313. Lord Advocate v., 260, 261. ■ Presb. of Dunse v., 252. Edinburgh Water Co. v., 258, 306. V. Hay, 169, 170. V. Le Neve, 303. V. Marshall, 61. V. Mags, of Perth, 292. V. Scott, 87. V. Marquis of Tweeddale, 121. Wemyss v. 107- Hector, Ferrier v., 208. Helensburgh, Mags, of, Caledonian and DumbartonshireRy. v., 45,278. Henderson v. Allan, 201. Duff v., 235. - Ellis v., 44, 93. • Gilfillan v., 219. • ■ V. Glynn, 67, 76. Graham v., 4, 183, 250. Hamilton v., 94. V. Henderson, 113, 121. Lothian v., 65, 200. V. Malcolm, 130. ■ V. Ramsay, 144. V Selkrig, 59. Shand v.,3, 247. Viscount Stormont v., 208. Wilson v., 156, 172. Hendricks v. Cunningham, 23, 65. Henry v. M'Ewan, 6, 308. Hepburn v. Aikman, 329. V. Brown, 192. V. Callander, 316. V. Congalton, 124. Heriot's Hospital v., 310. V. Earl of Portmore, 252. Heriot v. Makgill, 185. V. Ray, 74. Heriot's Hospital v. Cockburn, 34, 312. V. Ferguson, 312. ■ V. Gibson, 340. ■ V. Hepburn, 310. . V. M'Donald, 39, 312, 340. - — . V. Ross, 81, 314. Heron v. Heron, 122, 171. • . Maxwell v., 76. V. Duke of Queensberry, 114. Stewart v., 191. Hewit V. Elliott, 60- Higginbotham, Reddie v., 90. Higgins, Cunynghame v., 326. . Dunlop v., 286, 289. v. Livingstone, 326. Hill, Arnot v., 85. V. Buchanan, 287. V. Burns, 82. ■ Fraser v., 19. V. Grant, 106, 157. V. Paul. 275, 326. V. Ramsay, 330. Sibbald v., 202. Hoby, Mags, of Renfrew v., 30, 32. Hodgson V. Bushby, 67. Hog, Commrs. of Forf. Estates v., 162. Habkin v., 46, 242. XXIV INDEX OF CASES. Hog, V. Hog, 190. Lashley v., 105, 150, 178, 182, 194, 223, 309. . V. Thwaytes, 223. Hogarth, M'Dougall v., 315. Hogg V. Hogg, 214. Hoggan V. Craigie, 186. V. Ranken, 198. V. Wardlaw, 73. Home V. Home, 172, 179, 295, 322. V. Pringle, 144, 323. Home, Earl of, Lord Advocate v., 252. Clark.v.,22. Duke of Roxburgh v., 290. 7. Duke of Roxburgh, 293. Honeyman, Forbes v., 320. Honymau v. Campbell, 186. Hope, Dalrymple v., 169. Miller v., 96. Raid v., 337. "Wallace v., 160. Wauchope v., 33, 84. Earl of Wemyss v., 9, 84. "Vere v., 115. Lord, Marquis of Annandale v., 269. Hopetoun, Earl of, Lord Advocate v., 308. Marquis of Annandale v., 176. V. Ramsay, 316. Richart v., 123. Wight v., 214. Horne, Maitland v., 317. V. Mackenzie, 148, 291. Rennie v., 125. Hotchkis V. Dickson, 108, 219. V. Royal Bank, 53. Housetiill Co. v. Neilson, 15, 18, 40, 251. Houston, Duncan v., 37. Irving v., 228. V. Maxwell, 108, 175. ■ Mackenzie v., 6, 292. Schaw v., 94, 122, 190, 332. V. Stewart, 56. Stirling v., 23. Houston's Exrs., Speirs v., 79. Howden, Ferrier v., 30, 32. Gordon v. , 254. Porterfield v., 134. Howie, Craig v., 67. V. Merry, 108, 172. Hughes, Gordon v., 52. ^ V. Gordon, 330. Hume, Campbell v., 231. Hume v. Duncan, 261. . V. Haig, 149. Lord Seaforth v., 260. Humphry v. Aitken, 13. Hunter v. Cochrane, 244. Cooper v., 280. Dalrymple v., 117. V. Dickson, 194. ■ Drumraond v., 249, 270. . V. Duff, 44, 158. v.'Tjardner, 57. V. George, 9, 66. Glass v., 308. V. Hunter, 173. • Lord Kinnaird v., 140. V. Earl of Kinnoul, 290. . V. M'Gown, 303. ■ Martin v., 244. . — - V. Miller, 217. Ochterlony v., 67. Hunters, Morton v., 70, 147, 198. Hurlet Alum Co., Earl of Glasgow v., 18, 85. Hutcheson, M'Michan v., 217. Hutchinson v. Ferrier, 18, 212. Hutchison, Mags, of Lanark v. V. Skelton, 337. V. Young, 22. Hutton V. Gibson, 283. Hyndford, Earl of, Charteris 327. Hvslop, Duke of Buccleuch v., 130, 131. V, Gordon, 4, 20, 52. 14. 68, Inglis V. Boswall, 298. V. Great Northern Ry. Co., 19, 278. V. Harper, 333. V. Inglis, 115. V. Mansfield, 31, 56. Robertson v., 185. . Waddell v., 274. V. Walker, 77. Innes, Abercromby v., 322. Earl of Aboyne v., 20, 165. Arbuckle v., 74. Earl of Breadalbane v , 254. V. Downie, 1. • V. Ministers of Elgin, 26, 238. • v. Earl of Fife, 198. • Finlayson v., 197, 208, 300. • V. Exrs. of Duke of Gordon, 69, 96, 132. V. Innes, 148, 225. V. Keith, 299. INDEX OF OASES. XXV Innes, Ker v., 10, 117, 124,170, 173, 254. — — - Kirkpatr'ick v., 319. ■ v. Baroness Mordaunt, 33, 131, 132. ■ Phillips v., 308. Inyerness, Mags, of, Dufi' v., 26.5. Inverury, Lord, Earl of Kintore v., 129. Irvine v. Earl of Aberdeen, 142, 259, 284. T. Gumming, 135. V. Irvine, 191. V. Kirkpatrick, 5, 16, 35, 45, 163, 164, 175. ■ V. Valentine, 3, 212, 284. Irving V. Houston, 228. Ivory V. Gourlay, 147. Jack T. Burnett, 82. v. Lyall, 27. Pearson v., 219. Jackson v. Munro, 23. James v. Telford, 264. Jameson v. Russell, 87, 297. Jamieson, Bateson v., 43. v. Laurie, 302. . M'Arthur v., 172. MitcheU v., 289. Jardine, De La Motte v., 146. Jeffrey v. Allan, 56. V. Brown, 27, 62, 303. M'Taggart v., 60, 104. V. Paul, 63. Duke of Roxburgh v., 71. V. Ure, 62. Jeffreys, Kyle v., 19, 92. .Jerdon, Scott v., 265. Johnston, Brack v., 110, 156. V. Cheape, 48. V. Edin. and Glasg. Union Canal Co., 341. Greig v., 336. v. Johnston, 29, 33, 146, 179. V. Tenant, 74. Wilkie v., 264. Johnstone, Codrington v., 175. v. Chalmers, 240. V. Middleton, 70. V. Phillips, 248. V. Stotts, 290, 291, 293, 305. Watson v., 326. Johnstone's Trs. v. Elliott, 5. Jolly, Grahame v., 44, 138, 216. V. M'Gregor, 186. Jones V. Lindsay, 87. Justice V. Callander, 330, Keble v. Graham, 37, 150, 205. Redder v. Reid, 109. Keir v. Duke of Atholl, 2U. Keith V. Forbes, 76. Innes v. 299. Kerr v., 32, 186. Stonehaven Harbour Trs. v., 276, 299. Tait v., 252. ■ Taylor v., 219. Kello v. Taylor, 185. Kelly, Stuart v., 6. Kelso, Martin v., 41, 118, 144, Kennedy, Brand v., 242. T. Campbell, 184. T. Cumming, 46, 274. • V. Macdowal, 108. Earl of Ruglen v., 117, 254. Ker, Arrot v., 63. ■ Graham v., 234. V. Inries, 10, 117,124, 170, 173, 254. V. -Ker, 130. Ker's Trs, v., 174. Scot v., 59, 60, 244. ■ Simson v., 83. Stewart v., ^14. V. Vaughan, 103. . Wauchopev.,102, 103, 111,255. Kerr v. Marquis of Ailsa, 144, 207. V. Bald, 28. . ■ Bremner v., 44, 78. Coopers v., 100. V. Dickson, 20, 268. V. Keith, 32, 136. Lindsay v., 173. V. Redhead, 130, 211, 212, 218. Duke of Roxburgh v., 135, 224, 283, 317. Scott v., 315. Taylor v., 60. Kibbles v. Stevenson, 108, 198. Kilsyth, Viscount, v. Presby. of Stir- ling, 238._ Kincaid, Midwinter v., 92. King, Earl of Stair v., 115. King's College, Aberdeen, Falconer v., 339. . V. Lady James Hay, 313, Kinloch, FuUerton v., 155. Lindsey v., 1. ■ Murray v., 101. Bocheid v., 117, 119. Kinnaird v. Riddoch, 46. XXVI INDEX OF CASES. Kinnaird, Lord, v. Hunter, 140. V. Matthewson, 208, 2 15. Kinnear, Cunningham v., 250. Kinnoul, Earl of, Presb. of Auchter- arder v., 96, 253. V. Dalgleish, 183, 290. Ferguson v., 93, 101, 253. Gordon t., 2i0. V. Hunter, 290. Robertson v., 11, 318, 319. Kintore, Earl of, v. Forbes, 291. V. Lord Inverury, 129. V. Union Bank, 38, 47. Kippen v. Darley, 41, 273. Kircudbright, Mags, of, v. Affleck, 75. Kirkcaldy, Donald v., 269. Kirkland, Gibson v., 63. V. Nisbet, 342. Kirkpatrick v. Innes, 319. Irvine v., 5, 16, 35, 45, 163, 164, 175. V. ISime, 223, 246. Knowles, Burnet v., 247. Kyd, Bayne v., 243. Kyde r. Davidson, 179. Kyle V. Jeffreys, 19, 92. Lagg, Grierson v,, 36. Laidlaw v. Smith, 51. Wilson v., 247, 251. Laing, Reid v., 186. Earl of Strathmore v., 294. V. Watson, 230. Laird v. Robertson, 202. Lamont, Duke of Argyll v., 311. Lanark, Mags, of, v. Hutchison, 14. Landell, Purves v., 221. Lang T. Brown, 48. Campbell v., 331. V. Lang, 126. V. Struthers, 221. Lapsley v. Grierson, 186. Lashley v. Hog, 105, 150, 178, 182, 194, 223, 309. Lauderdale, Earl of, v. Maokay, 209 Laurie, Jamieson v., 302. Lawrie, Ewing v., 63. V. Lawrie, 138. V. Livingstone, 23, 198. V. Macghie, 38, 121. Lawson, Lord Falconer v., 214. v. Maxwell, 68, 195. v. Ogilvy, 6, 216. V. Stewart, 336. V. Tait, 65. Lead, Ktewart v., 215. Leadhills Mining Co., Scots !Mines Co. v., 29, 41. Leiirmonth v. Livingstone, 243. Lee V. Murdoch, 66. Legrand v. Stewart, 195. Leitch V. Leitch's Trs., 328. Leith Bank v. Bell, 79. Harbour Comrs. v. North Leith, 258. Le NevGj Hay v., 303. Leslie v. Curtis, 303. V. Grant, 24. V. Leslie, 120, 170. Orme v., 130. V. Shepherd, 63. Letham, Scott v., 300. Leven, Young* v., 36, 149, 226. Edinburgh, Perth, and Dundee Ry. Co. v., 278. Leys V. Lord Forbes, 15, 18. Liddesdale v. Dobie, 158, 160. Lillie, Dennistoun v., 202. Lindsay v. Earl of Aboyne, 120, 123. Mags, of Dundee v., 75. Jones v., 87. V. Kerr, 173. London and N. W. Ry. Co. v., 4, 183. V. M'Tear. 257. Tovey v., 196. Wryghte v., 58. Lindsey v. Kinloch, 1. Linlithgow, Mags, of, Edinbura;h and Glasgow Ry. Co. v., 11, 21, 38, 45, 73, 184, 279. Linwood v. Hathorn, 33, 229. Lippmann, Donv., 158. Lister v. Sutor, 246, Little V. Little, 333. Murray v., 33. Taylor v., .58. Littlejohn, Hamilton v., 42, 326. V. Straton, 292. Livingstone v. Earl of Breadalbune, 164. Fenton v., 187. Forbes v., 83, 266. Higgins v.,326. Lawrie v., 23, 198. Learmonth v. , 248. Lord Napier v., 113, 141, 198. V. Proudfoot, 93, 258. V. Warrack, 89. Lockhart, Baillie v., 178. — — Caledonian Ry. Co. v., 50. — V. Cheisly, 280. INDEX OF CASES. XXVll Loekhart, Corars. of Forf. Estates v SJi, 105. Denham v., J24. Duke of Douglas v., 2^,6. Macdonald v., 261. V. Macdonald, 171. Pollock v., IfiS, 260. Ross v., 121, 23.1, 336. Lockwood, Dattidson v., 21, 43, 59. Logan V. Logan, 120. V. Wright, 299, 340. London and N. W. Ry. Co v. Lind- say, 4, 183. Long, Taylor v., 219. Lorimer, Cairncross v., 110. Wrights of Portsburgli v., 72. Lorn, Marquis of, Donny v., 74. Lothian v. Henderson, 65, 200. Marquis of, v Haswell, 74. Loudon, Earl of, Farquhar v., 311. Lovat V, Lovat, 2, 281. Lord, Fraser v., 40, 50, 114. V. Mackenzie, 160, 162, 227, 270. Low V. Bell, 55. V. Duncan, 55. Lowthian, Clayton v., 177. V. Ross, ]78, 19.5. Luke V. Mags, of Edinburgh, 37, 253. Lumsdaine, Balfour v., 143. Lumsden v. Duff, 15, 29. V. Lumsden, 1l6. Lundine, Durham v., 314. Lutwidge V. Gray, 302. Lyall, Jack v., 27. V. Skene, 197. Lyle, Balfour v., 28, 92. Lynedouh, Ochterlony v., 321. Lyon, Cogan v , 6, 183. V. Earl of Aboyne, 43. Reid v., 296. Maberley v. Bank of Scotland, 53. Macadam, Gilchrist v., 25. V. Walker, 173, 185, 255. Macalister, Alexander t., 20, 245. . Duke of Argyll v., 318. V Dun, 184. Gemmil v., 220, 342. ^'!aoalliste^ v. Macallister, 9. Macallum, Brock v., 56. V. Campbell, 168, 224. Macao v. Off. of State, 24. M' Arthur v. Jamieson, 172. Macartney, Mackenzie v., 77, 147, 326. M'Aulay V. Adam, 31, 42, 219, 220, M'Brair v. Hamilton, 4, 20, 263. M'Call V. Black, 263. M'Uaul, Paterson v., 273. M'Cline, Maxwell v., 112. -MacCorraack, Craufurd v., 5, 104. M'Craw, Allan v., 258. V. Cunningham, 35, 257. M'CuUoch V. Allan, 29k V. M-CuUoch, 61, 70, 122, 184, 273. V. Mackenzie, 137, 139. M'Diarmid v. M'Diarmid, 2,:6. M'Donald v. Boiiar, 80. V. Burt, 229. Comrs. of Forfeited Estates v., 306. V. Elder, 88, 146. Heriot's Hospital v., 39, 312, 340. Loekhart v., 171. V. Loekhart, 261. V. Macdonald, 265. V. Lord -Macdonald, 138, 177, 284. — — ■ Macdonall v., 99, 207, 220. V. Mackie, 6. MKinnon v., 167. Meiczies v., 207. Playfair v., 85. V. Ross, 262. Scott v., 57. Lord, V. M'Leod, 265. Macdonall v. Macdonald, 99. Macdonell v. Cameron, 211, 213, 301. Fnizer v., 261. V. Macdonald, 207. .M'Douall V. Buchan, 151. Countess of Dalhousie v., 225. Macdougall v. Campbell, 13, 259. V. Hogarth, 316 M'Dowal V. Annand, 60, 165. Kenneoy v., 108. M'Dowall V. M'Dowall, 23. Ross v., 67. M'Duff, Stewart v., 218. M'Ewan v. Campbell, 7, 279. Henry v., 6, 303. M'Ewen v. Smith, 283. M'Farlane, Campbell y., 207. Mags, of Edinburgh v., 275. - — Napier v., 300. M'Gavin, Montelth v., 75. V. Stewart, 37, 65, 182, 319. and Co., Dunn v., 238. M'Ghie, Lawrie v., 38, 121. xxviii INDEX OF CASES. M' Gibbon, Baillie v., 63. M'Gown, Hunter v., 303. M'Gregor, Marquis of Breadalbane v. , 29, 32, 298. V. Brown, 120. Forrester v., 91, 152. Jolly v., 186. Newbigging v., 201. ■ Duke of Northumberland v., 134. M'Guire,,Partonshill Coal Co. v., 30, 222, 230'.' M'Hutcheon, Earl of Galloway v , 212. M'Innes v. More, 185. Macintosh v. Brierly,- 265. " T. Gordon, 152. v. Mackenzie, 300. Scott v., 199. M'lntyre v. M'Nab's Trs., 209. Mackay \r. Davidson, 103, 257. Graham v., 95, Earl of Lauderdale v., 269. V, Lord Reay, 144. Ritchie T., 13,66. Mackenzie, Lord Advocate v., 22, 252. Comrs. of Forf. Estates v., 161, 237, 306. Craigie v., 216. Cuthbert v., 188, 228. Mags, of Dingwall v., 204, 285, 293. V. Dunlop, 17, 288, 341. Du Roveray v., 23, 271. Earl of Fife v., 191. v. Girvan, 47, 50, 94. Globe Ins. Co. v., ,326. . Home v., 148, 291. v. Houston, 6, 292. Lord Lovat t., 160, 162, 227, 270. V. Macartney, 77, 147, 326. M'CuUoch v., 137, 139. V. Mackenzie, 119, 266. V. Mackilligin, 99. Mackintosh t., 300. Munro v., ^3, 98. V. Orr, 2S!p <. . V. Rose, 293. V. Ross, 14, 39. Ross v., 261, 262. V. Scott, 95, 263. V. Stewart, 137. V. Sutherland, 292. V. Urquhart, 141. Mackenzie, York Buildings Co. v., 1, 322, 323. Mackenzie's Trs. v. Mackenzie's Trs., 339. Maekersy v. Ramsay, 44, 53, 264. Mackie, Cameron v.. 43, 157. M'Donald v., 6. Makilligin, Mackenzie v., 99. Mackinlay, Gillon t., 147, 251. MackinnoB, Dewar v., 36, 153, 339. T. Macdonald, 167. M'Lachlan, Bennett v., 61. Maclaine v. Maclaine, 125. M'Latchie v. Brand, 146. M'Lea v. Walker, 241. M'Lean v. Bethur.e, 57, 63. V. Cameron, 211. Earl of Elgin v., 241. V. M'Lean, 187. V. Murdoch, 219. V. Officers of State, 175. V. Thorley, 287. M'Leay, Rose v., 263. M'Leish, Duguid t., 286. MacLellan v. Macleod, 49. Maclennan, Wilson v., 66, 78. Macleod, Bruce v., 92. Cunninghame v., 90, 108, 192. Lord Macdonald v., 265. V. MacLellan, 49. V. Ross, 312. M'Loughlan, Evans v., 95, 207. M'Miehan v. Hutchison, 217. M'Millan v. Campbell, 39, 114. Macmorran, Newcastle Fire Ins. Co. v., 199. M'Murdo, Duke of Queensberry v., 88. Macnab, Martin v., 72. M'Nab's Trs., M'lntyre v., 209. M'Nair, Campbell v., 62. T. Coulter, 200. Fleming v., 251. Grahame v., 202. Gray v., 49. N'Nee, Balmanno v., 61. Macneil, Smith v., 14, 203, 315. M'Neill V. M'Neill, 206. T. Moir, 256. M'Phail V. Glennie, 265. Macpherson, Forbes v., 181, 231. ' V. Hannay, 56. V. Macpherson, 35, 113, 184, 150, 319, 325. Macqueen, Earl of Wemyss v., 183, 240. INDEX OS CASES. XXIX Macrae v. Macrae, 237. M'Taggart v. Jeffrey, 60, 104. V. Watson, 63. M'Tavish t. Scott, 79. M'Tear, Lindsay v., 257. Macullum v. Robertson, 49. M' William, Adams v., 257. M'Whir, Oswald v., 15. Maidment, Wooley v., 24. Maitland, Fergusson v., 163. V. Forbes, 117, 141. Fraser v., 12, 209. Gibson v., 138. V. Gordon, 68, 109, 273. V. Home, 317. Majendie v. Carruthers, 168. Makgill, Heriot v., 185. Malcolm, Henderson, v., 130. V. Mansfield, 199. Balfour v., 95. . V. Young, 26, 213. Manners v. Blair, 98. Mansfield, Boulton v., 250. V. Cairns, 56. Inglis v., 31, 56. ■ • Malcolm v., 199. Earl of, V. Scott, 8, 39. V. Stewart, 115, 128. V. Wright, 239. Manson, Angus v., 54. V. Baillie, 324. Sinclair v. , 215. Mar, Earl of, v. Erskine, 133. March, Earl of, E. of Aberdeen v., 52. Sawyer v., 9, 146. Marchmont, Earl of, Trotter v., 299. Marianski v. Cairns, 16, 17, 149. Marischal, Earl, Haldane v., 26. Marjoribanks, Gordon v., 340. Mark, Alexander v., 173. Marsh, Miller v., 104. Marshall, Canison v., 283. Hay v., 61. V. Marshall, 146, 195. V. Stair, 63. Martin, Caxrick v., 230. V. Hunter, 244. V. Kelso, 41, 118, 144. V. Macnab, 72. . V. Martin, 178, 334. Masterton t. Meiklejohn, 74. Mather, Fogo v., 40, 174. Duke of Hamilton v., 4, 316. Matheson v. Ross, 29, 304. Mathewson, Lord Kinnaird v., 208, 215. Mathie v. Muir, 165. Mathiaon, Weems v., 21, 100, 230. Matthews, llailton v., 79, 80. Maule V. Maule, 9, 24, 42, 49, 182, 285. V. Moncreiffe, 40, 277. 7. Ramsay, 39, 110, 236. Maxwell, Aglionby v., 106. Brown v., 203. Coltart v., 310, 313. Cutlar v., 105. Edgar v., 169. V. Gordon, 238, 239. Graham v., 9. Halliday v., 338 V. Heron, 76. y. Houston, 108, 175. Lawson v., 68, 195. V. M'Clure, 112. y. Maxwell, 118, 182. Montgomerie v , 213. Scott v., 152, 182. y. Sharp, 19, 46, 234. V. Stevenson, 288, 305. V. Welsh, 143. Mead v. Anderson, 180. Mearns v. Farquharson, 166. Meek v. Mitchell, 100. Megget y. Douglas, 28. Meiklejohn, Masterton v., 74. Mein v. Taylor, 154. Melrose t. Hastie, 29, 288. Melville, Viscount, Preston v., 157, 320, 321. Menzies, Lord Advocate v., 149. v. Beresford, 118, 181. Earl of Breadalbane v., 3, 232, 267. V. Macdonald, 267. V. Menzies, 218. Stewart v., 14, 40, 186, 341. Mercer v. Lord Advocate, 163. V. Ogilvie, 101, 168, 183. Scotland v., 91. V. Williamson, 241. Merchant Maiden Hospital, Harlow v., 238. Meres, York Buildings Co. v., 50. Merry, Howie v., 108, 172. Middleton v. Balfour, 281. Johnstone v., 70. Midwinter v. Kincaid, 92. Mill, Craigie v., 307. Mags of Montrose v., 74. v. Reid, 231 Miller v. Alexander, 288. XXX INDEX OF CASES. Miller V. Anderson, 228. V. Black's Trs., 82, 320, 321. Edgar v., 308. ■ V. Earl of Glasgow, 239. V. Lord Gwydir, 216. V. Hope, 96. Hunter v., 217. 7. Marsh, 101. . V. Miller, 86, 272. 7 Small, 313. Stewart v., 274. Millie V. Millie, 223, 284. Milligan v. Wedderburn, 240. Mills, Albion Ins. Co. v., 88, 1.56. Milne v. Mags, of Edinburgh, 47. v. Robertson, 39, 286. V. Smith, 99. Minto, Earl of, Cochrane v., 267. V. Elliott, 177. .Mitchell V. Cullen, 105. Duguid v., 13, 32, 304. "Grier v., 149. v. Jamieson, 289. Meek v., 100. Morrison v., 9n. ■ V. Off. of State, 240. Smith v., 244. Thomson v., 100. V. York Buildings Co., 83. .Moffat V. Moffat, 256. Moir T. Moir, 19n. M'Neillv., 256. IMolle V. Riddell, 168. Moncreiffv. Cunningham, 124. V. Dunlop, 247. Maulev., 40, 277. T. Moncrieff; 2+. V. Skene, 135,336. V. Tod, 137. Moneypenny v. Campbell, 126. Moniepennie v. Brown, 106. Monkland Canal Co., Dixon v., 1, 12, 145, 275. Railway Co. v. Dixon, 276. Monro V. Monro, 117. Monteith v. M'Gavin, 75. Montgomerie, Angus, v., 74. ; V. Boswell, 14. V. Buccleuch, 131. Douglas v., 151, 175. V. Maxwell, 213. Marquis ot'Queensberry v., 131. — Earl of Wemyss, 130, 139. — - Lady, V. Rundell, 39, 87, 206. ■ Lord, V. Eglinton, 122, 126,144. • V. Wauchope, 20, 320. Montgomery, Alexander v., 286. Montrose, Duke of, Lord Advocate v., 315. ' V. Colquhoun, 311. V. Stewart, 42, 317. Montrose, Mags, of, v. Erskine, 33. Ewan v., 82, 272. V. Mill, 74. Scott v., 315. Stratton v., 99. Vlonypentiy v. Ayton, 143. Moodie t. Stewart, 270, 283. Moore v. Belches, 241. Moray, Earl of, Duke of Gordon v., 29^ . v' Ross, 122. Countess of, Stewart v., 2 11, 228. Mordaunt Baroness, Innes v., 33, 131, 132. More, M'Innes v., 185. Morehead v. Edraonstone, 197, 26.5. > V. Morehead, 119. Morgan v. Morris, 17. Morison v. Viscount Arbuthnot, 233. Robertson v., 323. V. Scott, 193. V. Smith, 249. Murris, Buchanan v., 243. Mags, of Dundee v., 43, 82, 333. Geikie v., 236. — - Morjjan v., 17. . Watt v., 2a3. Morrison, Buswall v., 287. . V. Mitchell, 95. V. Robertson, 49. Morton v. Hunters, 70, 147, 198. Earl of, Brown v., 97. Douglas v., 101. Grant v., 212. V. Stuart, 331. Mossman v. Ferguson, 90. Moubray, Ferrier v., 27, 30, 197, 281, 296. Mowat, Geddes v., 58. Mudie, Ferrier v., 92. Muir, Mathie v., 165. Risk v., 277, 305. Young v., 61, 147. Muirhead v. Muirhead, 171. Munro v. Coutts, 332. Mags, of Dingwall v., 69. V. Drummond, 136. Jackson v., 23. . ■ V. Mackenzie, 43, 98. V. Munro, 111, 114, 124, 225. V. Paul, 7. INDKX OF CASES. XXXI Munroe v. Forbes, 20, 74. Murdoch, Andrew v., 342. Brown v., 304. Eaton v., 77. Mags, of Glasgow v., 308. ■ Lee v., 66. M'Lean v., 219. Mure V. Mure, 102, 118. Murray v. Blair, 152. ■ V. Bullerwell, 173. V. Butlei? 76. ■ V. Carlyle, 170. V. Charteris, 70. Douglas v., 105. Lord Elibank v., 119. V. Graham, 128. V. Grant, 41, 150, 305. Grosset v., 67. V. Kinloch, 101. V. Little, 33. V. Murray, 127, 193. Neilson v., 151, 238. Pentlandv., 211. Earl of Selkirk, 291. Lady Sempill v., 104, 107. V. Thomson, 97. Marquis of Tweeddale v., 214. Mushet, Falconar v., 116. Mylne, Bell v., 14, 294. Nairn v. Nairn, 116. Nairne, J^ord Wharncliffe v., 128. Naismith, Weir v., 76. Napier v, Bruce, 77- — — v. Glendonwyn, 61. V. Gordon, 154, 236. Haig V , 287. V. M'Farlane, 300. V. Napier, 54, 190. V. Seotts, 154. Lord, Scott v., 26. v. Livingstone, 113, 141, 198. Nasmyth v. Hare, 332. ■ V. Samson, 22. National Exchange Co. v. Drew, 7, 248. Neilson, Baird v., 110, 251. . V. Cochrane, 259. Househill Co. v., 15, 18, 40, 251. V. Murray, 151, 238. Nelson, Fleshers of Glasgow v., 38, 93. Newal, Rae v., 309. Newall V. Comrs. of Police of Dura- fries, 308. Newhigging v. Maogregor, 201. Pursell v., 329. Newcastle Fire Ins. Co. v. Macmor- ran, 199. Newlands, Smith v., 163, 181. Newnham v. Stewart, 295. Newton, Fleming v., 227. Nicolson V. Nicolson, 146, 196. Nisbet's Trs., Halket v., 34, 317. Kirkland v. 342. V. Nisbet, 222. Young v., 124. Nitshill Coal Co., Glasgow, Barr- head, &c., Ry. Co. v., 277. Norfolk, Duke of, Billers v., 36. 64, 247. North British Bank v. Collins, 28, 245. North British Ins. Co. v. Barker, 37, 199. North British Ry. Co., Wauchope v., 11, 31. v. Tod, 277. Northland v. Cadell, 5, 226, 227. North Leith, Leith Harbour Comrs. v., 268. North umberland,Duke of, v. Macgre- gor, 134. Norton v. Stirling, 38, 115, 142. Ochterlony v. Hunter, 67. Offliiers of State, Lord Dunglas v., 35, 42, 98. , V. Earl of Haddington, 98, 117. Macao v., 24. M'Lean v., 176. Mitchell v., 240. Ouchterlony v. 239. Porterfield v., 316. Smith v., 268. V. Comrs. of Supply for Wig- ton, 34, 257. Ogilvie V. Earl of Airlie, 129. Bruce v. 243. Carron Co. v., 297. Comrs. of Forf. Estates v., 161. V. Dundas, 165, 222. Gordon v., 167. Gray v. 289. Grosset V. 304. Mercer v., 101, 168, 183. Paterson v. 1, 155. V. Skene, 197. Smart r. 210. Smyth v., 78, 80. V. Wingate, 210. xxxu INDEX OF CASES. Ogilvy, Caledonian Ry. Co. v., 278. Lawson v., 6, 216. Ommamey v. Bingham, 111, 187. O'Reilly v. Baroness Sempill, 171. Orme v. Leslie, 130. Orr, Fleeming v., 35, 45, 100. V. Glasgovr, Airdrie, &c., Ry. Co., 12, 246. ■ V. Hance, 63. Mackenzie v., 296. V. Union Bank, 54. Oswald, Goldie v., 247. V. M'WWr, 15. Ouchterlony v. Lord Lynedoch, 321. T. Officers of State, 239. Willock v., 332, 334. Pantoun, Cuming v., 8, 46, 295, 327. Parker v. Potts, 203. Parkhill v. Chalmers, 235. Paterson v. Bromfield, 114. .Clelaiidv.,14. v. Cockburn, 69. V. Comrs. of Forf Estates, 162. Cuthbert v. 114. • Forster v., 38, 183, 242. V. M'Caul, 273. • V. Ogilvie, 5, 155. V. Purves, 143. V. Russell, 196. V. Wallace, 19, 229. Watt v., 265, 299. Wright v., 165. Patersou's Trs., Brown v., 10, 66. Paton T. Brebner, 310. Paton, Strachan v., 39, 88, 308. Patrick v. Lord Advocate, 304. Shedden v., 182, 225, 226. Patten v. Carruthers, 264. Pattinson, Robertson v., 12, 91. Pattisou V. Allan, 8, 55, 284, 326. Paul V. Cadell, 226. V. Gibson, 59. Lord Glammisv., 24. Hill v., 275, 326. Jeffrey v., 62. Munro v., 7. ■ Earl of Strathraore v., 25, 109, 284. Pearson v. Casamajor, 329, 337, 338. V. Jack, 219. Peddle v. Brown, 87, 279. Pedie, Grant v., 111. ■ V. Swinton, 237. Pennell, Burnes v., 10, 245, 248. Pennington, Geddes t., 38, 183, 289. Pentland v. Booth, 209. V. Glass, 57. V. Lady Gwydir, 37, 340. T. Murray, 211. Perth, Lord, Donaldson v., 183, 226, 230. Mags, of. Lord Gray v., 292. Mags, of. Hay v., 292. Mags, of, V. Presbytery of, 2, 259. * Trades of, v., Pfoudfoot, 71. Philip, Edinburgh, Perth, and Dun- dee Ry. Co. v., 279. Philips V. Blair, 286. Phillips V. lunes, 308. Johnstone v., 248. Pitcaim, Downe t., 3, 27, 106, 248. V. Drummond, 47. Pitsligo, Lord, Lord Advocate v., 307. Pitt V. Pitt, 112, 197. Plaskett v. Stewart, 163. Playfair v. Macdonald, 85. Pollock, CampbeU r., 155, 328. T. Commercial Bank, 53. . V. Lockhart, 158, 260. Pollock's Trustees, Commercial Bank v., 4. Porter, Sturroek v., 262. Porterfield v. Corbet, 44, 134, 145, 274. V. Howden, 134. T. Off. of State, 316. Stewart v., 114, 117, 144. Porteus V. Fordyce, 150. Portmore, Earl of, Hepburn v., 252. Portsburgh, Wrights of, v. Lorimer, 72. Pott, EUiott v., 69, 131. Potts, Parker v., 203. Preston v. Earl of Dnndonald, 282. T. Viscount Melville, 157, 320, 321. Primrose, Crs. of Lord, Earl of Rose- berry v., 141. Pringle v. Dove, 255. ElUott v., 231. Home v., 44, 323. V. Pringle, 101, 271. V. Duke of Roxburgh, 297. Proudfoot, Livingstone v., 93, 258. Trades of Perth v., 71. Provan, Calder v., 65. Provost (Lord), Ministers of Edin- burgh v., 73. Pulteney, Bank of England v., 76, 295. INDEX OF CASES. XXXIU Pursell V. Newbigging, 329. PurTBs V. Landell, 221. Paterson v., 143. Pyper, Cradock v., 324. Queensberry, Duke of, v. Douglas, 819. Heron v., 114. V. M'Murdo, 88. Marquis of, v. Montgoraerie, 131. ' Scot. Union Ins. Co. v., 341. Queensberry's Trs., Duke of, v. Mar- quis of Queensberry, 132. V. Earl of 'Weniyss, 130. Rae T. Gibson-Craig, 28. V. Newal, 309. Railton v. Matthews, 79, 80. Ralston. V. Hamilton, 42, 154, 236. V. Rowat, 148. Ramsay, Cochrane v., 174. Henderson v., 145. HiU v., 330. ■ Earl of Hopetoun v., 316. . Mackersy v., 44, 53, 264. ■ Maule v., 39, 110, 236. Duke of Roxburgh v., 293, 305. ■ Whitson v., 266. Young T., 209. Ranken v. Campbell, 102. Hoggan v., 198. Rankin, Creighton v., 3, 4, 7, 79, 327. Ray, Heriot v., 74. Reay, Lord, Earl of Breadalbane y., 157. ■ Mackay v., 144. Reddie v. Higginbotham, 90. V. Syme, 92. . T. Todd, 276. Redfearn v. Sommerrail, 249. Redhead, Kerr v., 130, 211, 212, 218. Reekie, Gardner v., 74. Reid, Bartonshill Coal Co. v., 45, 230. V. Baxter, 34, 106. V. Coats, 67. ■ Craufurd v., 229. ■ V. Harvey, 202. V. Hope, 337. Kedder v., 109. V. Laing, 186. V. Lyon, 296. Mill v., 231. Renfrew, Mags, of, v. Hoby, 30, 32. Rennie v. Home, 125. V. Ritchie, 45, 194. Rennie v. Tod, 240. Ronton v. Anstruther, 115. Rhind, Commercial Bank v., 45, 54. Bichan v. Stove, 298. . V. Traill, 173. Richards, Taylor v., 219. Richardson v. Countess of Hadinton, 158. Richart v. Earl of Hopetoun, 123. Richmond, Hamilton v., 13. Riddell v. Grosset, 215. . MoUe v., 168. Riddick v. Douglas, 80. Riddoch, Lord Kinnaird v., 46. Rigg, Garden v., 65, 105, 205. Rigg V. Abercrombie, 262. Rintoul V. Boyter, 25, 269. Risk V. Muir, 277, 30.9. Ritchie v. Mags, of Canongate, 75. Duncan v., 255. V. Mackay, 13, 66. Rennie v., 45, 194. V. Ritchie, 34, 196. ■ Wight v., 57. Robarts v. Court, 206. Robb V. Forrest, 58. V. Thomson, 74. Robertson, Allan v., 282. . Allardice v., 36, 207. V. Marquis of Annandale, 157, 333 V. Duke of AthoU, 23, 164, 283, 299. Cadell v., 92. Craig v., 275. Davidson v., 66, 248. V. Ettles, 66. V. Fleming, 30, 222. Gordon v., 217- ■ V. Graham, 5. V. Harford, 31, 286, 289, 301. V. Inglis, 185. V. Earl of Kinnoul, 11, 318, 319. Laird v., 202. ■ Macallum v., 49. Milne v., 39, 286. V. MorisoD, 323. . Morrison, v., 49. V. Pattinson, 12, 91 . V. Robertson, 98, 194. Duke of Roxburghe v., 217. • Smith v., 204. v. Earl of Stair, 139. Young v., 329, 335. Robertsons V. Alexander, 12, 64. xxxiv INDEX OF CASES. Robins, Dolphin v., 197. Robinson v. Clark, 203. V. Edgars, 76. Rocheid V. Kinloch, 117, 119. Rodgers, Harvie v., 331. Roebuck v. Stirling, 251. Rose V. Earl of Fife, 88. Mackenzie v., 293. V. M'Leay, 263. T. Rose, 167, 175. V. Ross, 111, 225. Roseberry, Earl of, v. Crs. of Lord Primrose, 141. Ross, Baird v., 246, 298. Bruce T., 329. . Chalmers v., 32.5. Drummond t., 53, 136. Gibson v., 294. Hall T., 208. Heriot's Hospital v., 81, 314. V. Lockhart, 121, 235, 336. • Lowthian v., 178, 195. Macdonald v., 262. V. M'Dowall, 67. M'Kenzie v., 14, 39. V. Mackenzie, 261, 262. M'Leod v., 312. Matheson v., 29, 304. Earl of Moray v., 122. Rose v., Ill, 22.x T. Ross, 178, 255 (2 cases). Spence v., 154. V. Duke of Sutherland, 18, 291. Earl of Sutherland v., 313. Wyliev., 334. Rosslyn, Earl of, v. Aytoun, 275. Row, Addison v., 331. Rowan V. Alexander, 102. Rowand, Stevenson v., 13, 221, 295. Rowat, Ralston v., 148. Roxburgh, Duke of, v. Home, 290. V. Jeffrey, 71. V. Kerr, 135, 224, 283, 317. Pringle v., 297. - V. Ramsay, 293, 305. . V. Robertson, 217, ■ V. Swinton, 151. V. Waldie, 229. V. Wauchope, 103, 129, 135. Royal Bank v. Bank of Scotland, 53. . V. Christie, 246, 250. V. Gardyne, 94, .313. . Hotchkia v., 53. Ruglen, Earl of, Comrs. of Forf Estates v., 135, 136. V. Kennedy, 117, 254. Eundell, Lady Montgomerie v., 39, 87, 206. Russel, Gillespie v., 9. Russell V. Earl of Breadalbane, 53, 295. Campbell v., 201. V. Cochrane, 325. V. Creighton, 68. Graham v., 335. Jameson v., 87, 297- Paterson v., 196. SawersT.,299. . V. Shannon, 303. VVaddellv., 297. Rutherford, Mags, of, v. Cullen, 87. V. Stormonth, 299. Rutherp^len, Gibson y., 68. Mags, of, Allans v., 330. St Clair v. Mags, of Dysart, 297. Saltoun, Lord, v. Adv.-Gen,, 45, 143, 306, V. Fraser,^35. Samson, Nasmyth v., 22. Sandeman, Scott v., 45, 105, 206. Sandilands, Fraser v., 94. Sangster, Doig v., 289. Sassen, Campbell t., 189. Sawers v. Russell, 299. Sawyer v. Earl of March, 9, 146. Schaw V. Houston, 94, 122, 190, 332. Sclater, Clyne v., 244. Soot V. Ker, 59, 60, 244. V. Stewart, 77, 235. Scotland v. Mercer, 91. Scots Mines Co. t. Leadhills Mining Co., 29, 41. Scott V. AUnutt, 179, • Anna,nd v., 193. Viscount Arbuthnot -v., 293. Balfour v., 176. V. Brodie, 214. Carnegy v., 69, 212. ■ Y. Cochran, 107, 212. Lady Cranstoun v., 191. V. Curie, 7, 31, 302. Gardner v., 44, 261. V. Gillies, 293. Duke of Hamilton v., 240, 241. Hay v., 87. V Jerdon, 255. - V. Kerr, 315. V. Letham, 300. 7. Macdonald, 57. V. Macintosh, 199. Mackenzie v., 96, 263. M'Tavish v., 79. INDEX OF CASES. XXXV Scott, Earl of Mansfield v., 8, 39. V. Maxwell, li52, 182. V. Mags, of Montrose, 315. Morison v., 193. V. Lord Napier, 26. V. Sandeman, 4.'5, 10.5, 206. V. Scott, 122, 329, 334. V. Seton, 280. Smith v., 26, 207. Sprott T., 72. V. Straton, 208. TurnbuU v., 57. V. Yuille, 80. Srottish N. E. Ry. Co. v. Stewart, 45, 279. Marine Ins. Co. v. Turner, 204. Union Ins. Co. v. Marquis of Queensberry, 341. Scotls, Napier t., 154. Scougall, Thomson v., 154. Douglas v., 203. Seafleld, Earl of, v., Abercromby, 316. Seaforth, Lord, v. Hume, 266. Sea Ins. Co. v. Gavin, 201. Sec. for War, Mags, of Edinburgh v., 266. Selkirk, Earl of, v. Duke of Hamil- ton, 86. Murray v., 291. Selkrig v. Davies, 160. Henderson v., 59. Sellars, Towart v., 147, 256. Sempill, Lady, v. Murray, 104, 107. O'Reilly v., 171. Seton, Scott v., 280. Shand v. Henderson, 3, 247. Shannon, Russell v., 303. Sharp V. Burys, 49. Maxwell v., 19, 46, 234. Sharpe v. Bickerdyke, 49. V. Sharpe, 1^5. Sbaw, Earl Cathcart v., 129, 133. Forbes v., 239. Shaws Water Co. v. Mags, of Green- ock, 41, 73. Greenock Trs. v., 73, 327. Shedden t. Patrick, 182, 225, 226. Shepherd, Campbell v., 56. Grant v., 109,^170. Leslie v., 68. Sheppard v. Watherston, 91. Sheriff, Tham v., 263. Short V. Short, 33. Shortreid, Mags, of Annan v., 75. Sibbald v. Hill, 202. Sim, Clark v., 221. Siine V. Visct. Arbuthnot, 25, 183, 255. ■ Kirkpatrick v., 223, 246. Simpson, Govan v. 191. Wilkie v., 240. Simson v. Ker, 83. Sinclair, Allan v., 171. V. Earl of Breadalbane, 262. Marquis of Breadalbane, 317. V. Brodie, 31, 43. Brown v., 285. Davidson v., 123. V. Eraser, 159. V, Manson, 21,5. V. Sinclair, 35, 51. V. Threipland, 9, 113. Wilson v., 145, 285. . V. Young, 22, 106. Sinclairs v. Sinclair, 271. Skelton, Hutchison v., 337. Skene, Forbes v., 123, 169. Lyall v., 197. Moncrieffv., 135, 336. Ogilvie v., 197. Skirving, Fergussonv., 258. Small, Miller v., 313. Smart, AUardice v., 152, 270. V. Mags, of Dundee, 268. V. Ogilvie, 210. Smillie, Soc. of Solicitors v., 182, 300. Smith, Advocate-General v., 180. V. Allan, 201. V. Bank of Scotland, 80, 107. Beveridge v., 62. V. Bugle, 201. Brown v., 204. Burden v. 190, 223. Fleming v., 204. Laidlaw v., 51. M'Ewen v., 289. V. Macneil, 14, 203, 315. Milne v., 99. V. Mitchell, 244. . Morison v. 249. V. Newlands, 153, 181. V. Officers of State, 268. V. Robertson, 204. . V. Scott, 26, 207. V. Yelton, 200. Smollett V. Buntein, 73. Smyth V. Allan, 267- Forbes v. 294. V. Ogilvies, 78, 80. Soc. of Solicitors v. Smillie, 182, 300. XXXVl INDEX OF CASES. Solicitors before Supreme Courts, "Writers to the Signet v., 30, 38, 95, 183, 338. Somerville, Thomson v., 151. Sommervail, Redfearn v., 249. South Leith v. Allan, 35, 2.^8. Spaden, Arrol v., 337. Spalding, Frazer v., 177. Spears v. Lord Advocate, 97. Speir V. Dunlop, 16, 55, 60, 61. Speirs v. Campbell, 321. T. Houston's Exrs., 79. Spence v. Auchie, 287. . V. Ross, 154. Spottiswood, Lord Arbuthnot v., 8. Spottiswoode v. Burnett, 311. Sprot, CuUen v., 253. Sprott, Caledonian Ry. Co. v., 232. V. Scott, 72. Stair, Marshall v., 63. Earl of, Agnew v., 138, 139. V. King, 115. Robertson v., 139. V. Earl of Stair's Trs., 42, 119, 222, 321, 324, 333. Stead, Cox v., 26, 179. Stedman v. Stedman, 195. Steel, Boyd v., 89. V. Steel, 119. Steele, Campbell v., 311. Stein, Campbell v., 168, 303. V. Parries, 286. V. Stewart, 340. Stein's Assignees v. Brown, 35, 156. Steven's Tr., Fraser v , 321. Stevenson, Comrs. of Forf. Estates v., 162. Dumbreck v., 236. V. Fife, 178. Kibbles v. lOS, 198. Maxwell v., 288, 305. V. Rowand, 13, 221, 295. Stewart v. Agnew, 21, 36, 135, 181. . ■ Arnot v., 287. Baillie (Clyne's Trs.) v., 20, 39, 341. v. Bell, 215. — — • Berry v., 292. Bruce v., 52. Brydon, v., 17, 229. Burns' v., 216. Comrs. of Forf. Estates v., 161, 162. ■ ■ V. Crawford, 232. Lord Daerv., 181, 231. - — V. Denham, 139, 141. Stewart v. Dunlop, 201. V. Elder, 323. ■ V. Fullarton, 125, 218. . V. Gardners, 235, 322. V. Gibson, 3, 89, 96. ■ V. Gloag, 6, 30, 245. V. Graham, 112, 115. V. Mags, of Greenock, 3. • V. GreeuockMarinelns. Co., 204. V. Hall, 303. V. Heron, 191. ■ Houston v., 56. V. Ker, 314. • ■ Lawson v., 336. v. Lead, 215. Legrand v., 195. •■ V. M'Duff, 218. ■ M'Gavin v., 37, 65, 182, 319. Mackenzie v., 137- ■ Earl of Mansfield v., 11. "i, 128. V. Menzies, 14, 40, 186, 341. v. Miller, 274. V. Countess of Moray, 211, 228. Duke of Montrose v., 42, 317. Moodie v., 270, 283. Newnham v., 295. Plaskett v., 1 63. V. Porterfield, 114, 117, 144. Scot v., 77, 235. Scottish N. E. Ry. Co. v., 45, 279. Stein v., 340. V. Stewart, 145, 170, 341. Walker v., 48, 87. Whyte v., 173. Still v. Mags, of Aberdeen, 72. Stirling v. Alexander,-168. V. Campbell, 253, 295. . V. Duncan, 264. . V. Dunn, 33, 132. Easton v., 314. V. Ewart, ai4. V. Forrester, 78. V. Goddard, 202. V. Gray, 70. V. Houston, 23. Norton v., 38, 115, 142. . Roebuck v., 251. and Dunfermline Ry. Co., Edin. and Glasg. Ry. Co. v., 278, 305. Mags, of. Lord Erskine v., 291. Presb. of, Viscount Kilsyth v., 238. Stoddart v. Grant, 333. Stonehaven Harbour Trs. v. Keith, 276, 299. INDEX OF CASES. XXXVU Viscount, V. Henderson, 293, Stormont 208. Stormonth, Rutherford v., 299. Stotts, Johnstone v., 290, 291 305. Stove, Kichan v., 298. Strachan v. Paton, 39, 88, 303. Strathmore Peerage, 22.5. Countess of, y. Forbes, 184-. Earl of, V. Ewing, 66, 188. ■ V. Laing, 294. V. Paul, 25, 109, 284. V. 8trathmore's Trs., 42, 103, 30.5, 325. Strathnaver, Lord, Duke of Douglas . v., 141. Stration v. Graham, 211, 216. Straton, Littlejohn v., 292. • Scott v., 208. Stratton v. Mags, of Montrose, 99. Struthers v. Barr, 243. Dykes v., 78. Lang v., 221. Stuart V. Carnegie, 51. V. Kelly, 6. Earl of Morton v., 331. — — V. Stuart, 234. Sturrock V. Porter, 262. Sutherland v. Gordon, 153. Grant v., 176. Mackenzie v., 292. v. Countess of Sutherland, 261. Duke of, Ross y., 18, 291. Earl of, Bayne t., 3. — — • V. Dunbar, 22. V. Ross, 313. Sutor, Lister v., 246. Sutter, Aberdeen Arctic Co. v., 331. Sutton V. Ainslie, 19, 70, 149. Swan V. Bank of Scotland, 79. Swinton, Goddard v., 159. Pedie v., 237. Duke of Roxburgh v., 151. ■ Taylor t., 226. Syme v. Brown, 148. V. Dickson, 118. . V. Erskine, 310. Reddie v., 92. Tait V. Keith, 252. Lawson v., 65. Wilson v., 165. Tasker v. Cunninghame, 202. Tate, Thomson v., 255. Tawse, TurnbuUs v., 153. Taylor, Arbuckle v., 100, 247, 343. Taylor, Astley v., 251. V. Boyle, 209. V. Fairlie, 34, 64, 213. V. Forbes, 53. V. Keith, 219. . Kello v., 185. V. Kerr, 60. T. Little, 68. ■ V. Long, 219. Mein v., 154. V. Richards, 219. V. Swinton, 226. Taylor's Exrs., Forlong v., 192. Telford, James v., 264. Templer, Graham v., 325. Tenant, Johnston v., 74. Tennant t. Forth and Clyde Nav. Co., 40, 276. Y. Hamilton, 148. Tennent, Catterns v., 210, 301. Tham v. Sheriff, 263. Thom V. Dalrymple, 85. Thompson, Dudgeon v., 14, 30, 218. Thomson v. Advocate- General, 309. T. Bank of Scotland, 78. V. Buchanan, 201. V. Campbell's Trs., 222, 244. V. Christie, 323. Fleming v., 79. V. Forrester, 214. ■ V. Gourlay, 273. V. Mitchell, 100. Murray v., 97. ■ Robb v., 74. V. Scougall, 154. V. Somerville, 151. V. Tate, 255. V. Thomson, 153. Yeats v., 158, 333. Thomson's Trs., CuUen v., 249. Thorley, M'Lean v., 287. Threipland, Sinclair v., 9, 113. Thriepland v. Walsh, 1, 55. Thwaytes, Hog v., 223. Titchfield, Marchioness of, v. Gordon, 118. Tod, MoncreifFv., 137. . North British Ry. Co. v., 277. Rennie v., 240. v. Tod, 31 74. Todd V. Dunlop, 268. . Reddie r., 276. Torrance, Craufuird v., 137- Torrie, Duke of Atholl v., 331. Tough, Gordon v., 319. Tovey v. Lindsay, 196. INDEX OF CASES. Towart V. Sellars, 147, 256. Traill, Richati v., 173. Traquair, Earl of, v. Burrows, 13, 76, 158. Treasury, Comrs. of, Earl of Gallo- way v., 77, 97. Trotter, Farnie v., 236. V. Earl of Marchmont, 299. V. Trotter, 35, 156. TuUoch, Davidson v., 29, 164, 249. Turnbull, Allan v., 219. • V. Cowan, 234, 325. T. Scott, 57. Turnbulls v. Tawse, 153. Turner v. Ballendene, 83. ■ V. Gibb, 266. Scottish Marine Ins. Co. v., 2iJ4. V. Turner, 131. Tweeddale, Marquis of. Hay v., 121. V. Murray, 214. Union Bank, Earl of Kiiitore v., 38, 47. Orr v., 54. Union Canal Co. v. Carmichael, 7, 28, 87. Ure, Jeii'rey v., 62. Urquhart, Lord Advocate v., 107, 197, 280. Gordon v., 190, Mackenzie v., 141. V. Urquhart, 114, 305. Valentine, Irvine v., 3, 212, 281. Vans Agnew, Eraser v., 137. Vardill, Doe d. Birtwhistle v., 2 G. \ass, Earl v., 226. Vaughan, Kerr v., 103. Veitoh, Cunningham v., 72. Vere v. Hope, 115. Waddel v. W^addels, 146. Waddell, Barry v., 40, 61. ■ V. Inglis, 274. V. Russell, 297. V. Waddell, 228. Waddels v. Waddel, 146. Waldie, Duke of Roxburjih v., 2l'9. Walker v. Allan, 307, 327. Bayne v., 208. v. Craig, 69. V. Drurainond, 253. V. Forrester, 22. V. Gibson, 109, 274. V. Grant, 210. Tnglis v., 77. Walker, Macadam v., 173, 185, 255. M'Lea v., 241. V. Stewart, 48, 87. V. W'edderspoon, 3, 40. V. Weir, 1,330. Walkinshaw v. Lord Advocate, 3!)7. Wallace, Earl of Abercorn v., 84. V. Campbell, 243. Ewing v., 39, 285. V. Gel^es, 205, 243. V. Hope, 160. Paterson v., 19, 229. Walsh, Campbell v., 61. Thriepland v., 1, 55. Wardlaw, Hoggan v., 73. Wardrobe, Cunninghame v., 253. Waring, Boyes v., 1. Wark, Bargaddie Coal Co. v., 149, 342. VVarner, Cunningham v., 84, 243. Warrack, Livingston v., 89. Warrender v. Warrender, 111, 196. Watherston, Sheppard v., 91. Watson, Bank of Scotland v., 264, 3U4. Baskett v., 98. Crowder v., 230. V. Darling, 320. Davidson v., 233, 259. Fuirie v., 86. Gibson v., 250. V. Glass, 133, 170. Hamilton v., 80. V. Johnstone, 326. ■ Laing v., 230. M'Taggart v., 63. V. Watson, 1 ;4, 234. Watt V. Blair, TOO. Graham v., 262. V. Morris, 2U3. V. Paterson, 265, 299. Wauchope, Edinburgh and Dalkeith Ry. Co. v., 2, 276. ■ V. Hope, 33, 84. Ker v., 102, 103, HI, 255. Lord Montgomerie v., 20, 320. V. North British Ry. Co., 11, o I. Duke of Roxburgh v., 103, 129, 13,5. V. Wauchope, 234. V. York Buildings Co., 261. V\ augh, Edinburgh Water Co. v., 297. Webster v. Christie, 70. Wedderburn v. Halkett, 167. INDEX OF CASES. XXXIX Wedderburn, Milligan v., 240. Wedderspoon, Walker v., 340. Weeius V. Mathison, 2J, 100, 230. Weir, Birnie v., 289. Cleland v., 16, 19, 29, 41, 150. V. Crawfurd, 294. V. Glenny, 204, 267, 300. Graham v., 309. V. Naismith, 75. ■ Walker v., 1, 330. Wellwood, Earl of Elgin v., 131. Welsh, Maxwell v., 143. Wemyss v. Drysdale, 217. V. Hay, 107. V. Wilson, 38. Earl of, Lord Blantyre v., 316. V. Carne, 38, 66, 183. Glapsell v., 91. • V. Earl of Haddington, 271. T. Hope, 9, 84. ■ Moiitgomerie v., 130, 139. Duke of Queensberry's Trs. v., 130. V. Macqueen, 183, 240. Wharnclifi'e, Lord, v. Nairne, 128. White V. Ballantyne, 256. Whitefoord v. Whitefoord, 167, 197. Whiteford, Gunniugham v., 103. Whitehaven Ry. Co., Bain v., 10, 18, 35 159 277 Whitehead v. Galbraith, 21, 34, 46. Whitson V. Ramsay, 266. Whyte V. Stewart, 173. Whytlaw v. Coats, 242. Wight V. Dickson, 84. Duggan v., 183, 319. V. Earl of Hopetoun, 214. V. Ritchie, 57- Wigton, Comrs. of Supply for, Off', of State T., 34, 257. Wilkie V. Geddes, 203. V. Greig, '264-. V. Johnston, 264. • V. Simpson, 240. Willcox V. Parrell, 148. Williamson T. Advocate-General, 40, 180. Fyfev.,332, 342. Mercer v., 241. Willison, Bell v., 243. Willock v. Ouchterlony, 332, S'M. Wilson V. Alexander, 14, 62, 90. . Arratt v., 20, 318. V. Burnton, 159. Douglas v., 89. - — V. Elliott, 139, 200. Wilson, Forbes v., 147, 241. Eraser v., 282. • Grieve v., 145. ■ V. Henderson, 156, 172. V. Laidlaw, 247, 251. V. Maclennan, 66, 78. V. Sinclair, 145, US-'i. V. Tait, 165. — — Wemyss v., 38. Wingate, Ogilvie v., 210. Wishart v. Mags, of Edinburgh, 239. v. Wishart, 77. V. Wylie, 21, 28, 41, 267, 302. Wood v. Hamilton, 302. V. Young, 148. Wdods and Forests, Conirs. of, Gammell v., 293. Wooley V. Maidment, 24. Wortley, Marquis of Bute v., 170. Wright, Hamilton v., 108, 323. Logan v., 299, 340. Earl of Mansfield v., 239. v. Paterson, 165. Writers to the Signet, Graham v., 93. V. Solicitors before Supreme Courts, 30, 38, 95, 183, 338. Wryghte v. Lindsay, 58. Wylie V. Ross, 334. Wishart v., 21, 28, 41, 267, 302. Yeats V. Thomson, 158, 333. Yelton, Smith v., 200. Yelverton v. Yelverton, 38, 183, 187. York Buildings Co. v. Biemner, i81. Delvalle v., 158. Crs. of, Fordyce v., 1, 55. V. Ferguson, 90. V. Haldane, 157. V. Mackenzie, 1, 322, 323. V. Meres, 50. Mitchell v., 83. V. Wauchupe, 261. Voung V. Brown, 229. Collins v., 250. V. Cuthbertson, 331. Hutchison v., 22. V. Leven, 36, 149, 226. Malcolm v., 26, 213. v. Mair, 61, 147- V. Nisbet, 124. V. Rail) say, 209. v. Robertson, 329, 335. Sinclair v., 22, 106. Wood v., 148. Yuille, Scott v., 80. INDEX OF ESTATES IN ENTAIL CASES. N.B. — The figures foUomTu; the name are the numier of the case on the page re/erred to. , Name of Estate. Abertarff; 18, Aboyne, 54, . Ascog, 86, Ashkirk, 154, Aucliendoir, 96, AacMerhouse, 108, 109, Balbithan, 179, Baldastard, 45, Balgownie, 8, Balliliesk, 90, Balnagowan, 58, 69, Balmakewan, 197, Balquhain, r,6, 130, . Barnbarroch, . Bargaly, 67, . Bargany, 62, 63, 205, 1 206, . / Barholm, 68, 160, ) 175, . ] Barocban, 5, . Belleville, 143, Blair-Adam, 84, Blairhall, 43, Blanerne, 208, Bonnington, 81, Buccleuch, 119, 125, Burnbead, 55, Caiplie, 19, 95, 132, Carleton, 87, . Carlo urie, 76, Carraldstone, 26, 201, Carrington, 185, Cavers, 113, . Cbatto, 115, 146, Cliftonhall, 166, Cluny, 9, Cockspow, 98, Coilsfield, 97, 213, Corabie, 10, . Countesswells, 74, Page 115 120 124 136 126 129 140 119 113 125 121, 122 142 120, 130 135 122 121, 122, 143 122, 137, 139 113 134 124 118 143 124 130, 131 . 120 115, 126, 132 125 . 123 116. 143 . 141 129 130, 135 . 138 . 113 . 127 126. 144 . 114 . 123 Name of Estate. Craigieball, 17, Craigmiller, 58, Cromarty, 157, 158, 190, Crombie, 37, . Culdares, 42. . Cults, 21, Dankeith, 39, 215, Dirleton, 79, Dougalstoun, 47, 70, Drum, 148, 194, DrumkUbo, 107, Drumniacbie, 73, Duchal, 141, 142, 211 Ducbrae, 2, 137, Duntreatb, 40, Duris, 126, 127, 131, Earisball, 7, 61, Easter Hailes, 195, . Eccles, 14, Edenbarnet, 129, Edstoun, 118, Fairburn, 144, Feddal, 105, . Fingalton, 52, Finlaystone, 139, Finzean, 54, 99, 100, Fordell, 61, . Fowlis, 15, 34, 85, Gartmore, 94, 177, 178, 198, 199, Garvocb, 124, Glencrutten, 53, 89, Gordonston, 41, Grange, 163, . Greenock, 65, 112, ) 135, . ] Page 115 . 121 136, 141 . 118 . 118 . 115 118, 144 . 124 119, 122 135, 142 . 128 . 123 134, 144 112, 133 . 118 131, 132 113, 221 . 142 114 . 132 . 130 . 134 . 128 120 . 133 120, 127 . 121 114, 117, 124 126, 140, 142 . 131 120, 125 . 118 . 137 122, 129, 133 INDEX OF ESTATES IN ENTAIL CASES. xli Name of Estate. HallhUl, 22, . Hallyards, 152, 162, Harden, 66, Harestanes, 118, Haulkerton, 110, Herbertsliire, 49, Hoddam, 88, . Humbie, 78, . Hyndshaw, 12, 25, Inverleith, 82, 44, Keith, 75, . Kilbirnie, 102, 183, Kilbuobo, 71, 153, Kincraigie, 204, Kinross, 138, Kintore, 110, Kippo, 203, . Lanrick, 51, . Linplum, 60, Livingstone, 36, Locbbuy, 92, Lochhouse, 13, Logiealmond, 20, 103, Lovat, 164, . Luss, 196, Lynedoch, 24, Macdonald, 167, Mar, 140, March, 170, . Meldrum, 11, Merksworth, 38, Morphie, 165, Murdostoun, 105, 106, Neidpath, 118, Newbyth, 133, Orangefleld, 31, Overshiels, 181, Page . 115 135, 137 . 122 . 130 . 129 . 119 . 125 . 124 114, 115, 116 117, 119 . 123 . 140 123, 136 . 143 . 133 . 129 . 143 . 120 . 121 . 118 . 125 . 114 115, 128 . 138 . 142 115, 128 138 133 139 114 118 139 128 130 132 117 140 Name of Estate. Orerton, 92, Fage 126 Phisgill, 2, . . .112 Pitrichie, 19, 77, 191, 117, 123, 141 Polwarth, 209, . 143 Porterfleld, 16, 35, j ^^^^ ^^^^^ ^^^ Queensberry, 117, 118, ) inn ion 119, 120, 128, 130, ] ^■^"' ^-^^ Rainniestown, 102, 128 Reay, 210, . . 144 Redcastle, 59, 169, 121, 138 Redhouse, 136, . 138 Ronton, 23, 200, 115, 142 Riccarton, 27, 57, 116, 120 Rosebank, 186, . 141 Roxburgh, 33, 82,111, ) 117,124,129, / 130, 135. 116, 151, Roystoun, 159, 137 Rutherford, 72, . 123 Scarr, 207, . .143 Seaforth, 46, ' . . 119 Sheuchan, 150, 153, ) IS.*), 137, 138, 161,168,172, S 139. Simprim, 50, . . . 119 Skeldon, 59, - . . 121 Skibo, 12, . 114 Southdun, 6, . 113 Stobbs, 123, 171, 173, 131, 139 Strathbrock, 93, 101, 126, 127 Strathord, 28, . • 116 Tillycoultrie, 80, 86, * 124, 125 Tinwald, 120, 131 Tullibardine, 145, . 134 Turnerhall, 122, . . 131 Westquarter, 4, 191, ) ,^0 -ia-i 192 ( ^^^t ^^^ Westshiels, 83, 174, 186, ) 124, 139, 189, ] 141. DIGEST OF HOUSE OF LOKDS GASES. Abbey. — See Sanctuary. ACQUIESCENCE. 1. Creditors having public notice of an alienation of tteir debtor's property at an undervalue, are by acquiescence barred from setting it aside. — Thriepland v. Walsh, 2 P. 496 (1779) ; Rev. M. 8383. Fordyce v. Crs. of York Buildings Co., 2 P. 500 (1779); Aff. M. 8380. 2. Acquiescence only begins to run from the titne when the party could have acted, and therefore the judicial purchase of an estate by a common agent may be challenged eleven years after the transac- tion, if the relation of common agent subsisted for that space of time. — Torh Buildings Co. v. Mackenzie, 3 P. 378 (1795); Rev. M. 13367. 3. In a claim made by a daughter for her share of the personalty of her father, who died thirty-six years before, when she was only one year of age ; held that nothing was due to her. — Lindsay v. Kinloch, 3 P. 432 (1796); Aff. 4. Evidence of acquiescence iu an exeambion with the minister held to bar an heir of entail from reducing it. — Innes v. Downie, 6 P. 75 (1814) ; Aff. 5. Acquiescence may cure a defective execution of a legal authority, but cannot supply an authority that does not exist. — Walker v. Weir, 6 P. 281 (1817) ; Rev. See Action, 105— Burgh, 16. 6. The son of a deceased factor is not entitled to claim a commission or fee for trouble as due to his father, which the father, in the annual accounts rendered by him, had never stated as a charge. — Boyes r. Waring, 1 ;Sf. Aj>. 121 (1822) ; Aff. See Contract, 15. 7. When a party who had ia 1836, by judgment of the House of Lords, recovered overcharges from the year 1815, brought thereon an action to recover similar overcharges from 1804 to 1815 ; held that the demand was inequitable, and consequently to be refused. — Dixon V. Monkland Canal Co., 5 W. Sf S 445 (1831) -.Aff-^iS 826. ACTION. [Pursuerg. 8. A party entitled to tolls in respect of a railway, such tolls to be payable for every ton of goods so carried, is not barred from re- covering arrears in respect of goods for which, the railway did not consider themselves liable, and therefore did not include in their annual statement of the amount carried, by the fact that he accepted payment of the sums yearly tendered as due under such statement, it not shewing specifically the nature of the goods carried. — Edinburgh and Dalkeith Ry. Co. v. Waucliope, 1 S. Bell,^.252, 8 01 & Fin. 710 (1842) ; Aff. 1 D. 1151. See Bill of Exchange, 13 — ^Bankeuptct, 23 — Buegh, 41 — Cautioner, 21 — Contract, 15. ACTION. I. PCESUBRS, . . . II. Defenders, . . Defemder Abroad, III. Pleadings, . . 1. Sum/mons cmd Con- 2. Defences, .... 3. Defence of Lis Alibi and Bes Judicata, IV. Ebclaiming, . . . . V". Res Noviter Veniens, VI. Consignation, . . . . VII. Incidental Procedure, 5 7 8 9 10 10 10 VIII. Proof, p. 1. Productions and Commdssion, 2. Judicial Remit, . 3. Oath of Party, . 4. Jury Trial, . . (a.) Practice, '{b.) Issues, . . (c.) Verdict, Id.) Bill of Excep- tions, . . IX. Decree, X. Procedure on Remit PROM House of Lords, See also Appeal — Court op Session — Evidence — Sheriff — (dso MULTIPLBPOINDING ^REDUCTION — &C. 11 11 12 12 13 13 15 16 17 19 21 I. Pursuers. 1. It is irregular to sequestrate the rents of an estate at the in- stance of creditors who are not parties to the action in which the sequestration is granted. — Lord Lovat v. Lady Lovat, Eobert. 355 (1721); Eev. 2. The Presbytery of the bounds is entitled to sue for the due administration of a charity in the name of the Kirk-Session, who were the proper parties, but who disclaimed the action. — Mags, of Perth V. Presb. of Perth, Cr. & St. 39 (1730) ; Aff. M. 10723. 3. The committee of an English lunatic has not, in virtue of his appointment, a title to sue in Scotland ; but if the lunatic, being yet unoognosced in Scotland, grants him a power of attorney, though it narrates his own lunacy, his title wiU be sufficient. (Per Lord Hard- Defend&i-s.] ACTION. 3 wicke) — " The law would be the same in England." — Bayne v. Earl of Sutherland, Or. ^ St. 454 (1750) ; Rev. M. 4595. 4. Question whether oj6B.ce-hearers of a joiat-stock company not in- corporated can sue for the company. — Cabbel v. Brock, 3 W. & S. 75 (1828). 5. A company unincorporated may sue by its directors. — Downe v. Pitcaim, 3 W. & S. 472 j 4 BUgh, KS. 550 (1829) ; Aff. 2 S. 658. 6. Question whether one partner can sue on a contract entered into with the partnership? — Stewart v. Gibson, 1 Eobin. 260 (1840). 7. Question whether a party can authorise another to sue in his own name, not assigning to him the right in question'! — -Creighton v. Eankin, 1 Eobin. 99, 7 CL & Fia. 325, May (1840) ; 16 S. 447. 8. A pauper suing for a debt may be ordered to iind security for costs, on its appearing that he had assigned the debt iu security to another, and the assignee refusing to be sistedj but on obtaining a retroeession, he is not liable to find security for future costs, but may be ordered, before proceeding, to pay the expenses of the discussion occa- sioned by the assignation. — Walkers. Wedderspoon, 2 S. Bell, 57 (1843) ; Aff. See Bankeuptct, 75 — BuRen, 15, 27 — Partnership, Dissolution of. IL Defenders. 9. In an action to determine the bounds of a royal forest, the Lord Advocate must be made a party. — Earl of Breadalbane v. Menzies, Or. ^ St. 146 (1735) ; Rev. See Appeal, 71. 10. A burghal parish having been erected and disjoined from the landward parish in an action by the magistrates against an heritor to have a churchya,rd allotted, it is necessary that the Kirk-Session of the new parish should be parties. Interlocutors reversed for defect of parties, without prejudice to the pursuers adding proper parties or commencing a new action. — Stewart v. Mags, of Greenock, 2 P. 486 (1779) ; Eev. M. 8019. See Parish, 1. 11. A landlord having by illegal means obtained possession of a farm on his estate to the prejudice of the tenant's creditors, and thereon again let it, the new tenant is entitled to be heard for his interest in a reduction of the new lease by the creditors. — Irvine v. Valentine, 3 P. 287 (1793) ; Alt. 12. An action of declarator and damages against a company held to be properly directed against their clerk or manager, though there was no clause in their act authorising him to sue or be sued. — Shand v. Henderson, 2 Dow, 519 (1814) ; Eev. 1808. 13. The surviving partner of a company cannot object that the re- presentatives of the other partners ought to be called as co-defenders, A 2 4 ACTION. [Defenders. when the pmsuer declares that none exist, unless he is prepared to state who they ave. — M'Brair y. Hamilton, 2 W. 4r S. 66 (1826); Rem. 4 S. 24. 14. A joint-stock company may be sued by the name of its firm, with the addition of some of the names of the partners. — Commercial Bank V. PoUock's Trustees, 3 W. & S. 365 (1828) ; Aff. 15. A party allowed to appear as defendei; in an action in which decree could not go out against him, nor ioTca. res judicata against him, is not entitled to the costs of appearance, or subsequently, although the defender is assoilzied. — Dulce of Hamilton v. Mather, 2 S. 4' M'L. 586 (1837); Aff. US. 162. See Bankeuptct, 76^Damages. Defender Abroad. 16. The owner of heritable estate in Scotland, though not residing in Scotland, may be sued in respect of an Indian transaction. — Graham V. Henderson, 4 P. 421 (1802); Aff. 17. A suit having been brought by a Scotsman by birth against two other Scotsmen by birth, in respect of transaction in America where all the parties had long resided, though the defenders had property in Scotland which was corrected on the dependance, the Court of Session held it had jurisdiction, and the House of Lords held that the point could not be reconsidered, the decision not having been appealed from at the time, and the suit having been proceeded with. — Hyslop v. Gordon, 2 S. Ap. 451 (1824); Alt. 18. A summons served on 6th July states that the defender had left the country on June last. Held that service at the dwelling-house was proper, there being no proof of the period of absence from the country. — Creighton v. Eankin, 1 Eobin. 99, 7 CI. & Fin. 325 (1840); Aff. 16 S. 447. 19. An English railway company may be sued in Scotland on arrest- ment, jurisdictionis fundandce causa, of funds due to it by a Scottish railway company. Question, whether in case of jurisdiction so estab- lished, the remedy given can exceed the value of the funds arrested. — London and K W. Eail. Co. v. Lindsay, 3 M'Q. 99 (1858); Aff. 18 D. 62. 20. On the death of a party for whom a mandatary has been sisted, intimation ought to be made to his representatives, and in the event of their declining to proceed with the action, the mandatary is liable for expenses up to that date. He is also liable if, on applying to be discharged, the party does not obtemper the order calling on him to sist anew mandatary. — Cairns d. Anstruther, 2 Eobin. 29 (1841); Aff 1 D. 24. Pleadings.] ACTION. 5 21. In an action against an heir on the passive titles, it is not neces- sary to call the personal representatives of the ancestor, or other heirs- portioners who are out of Scotltod, and the heir may be cited, though domiciled in England and in Scotland at the time, for less than forty days. — Irvine v. Kirkpatrick, 2 Eobin. 475 (1841) ; Aft 16 S. 1200. See Bank, 8. III. Pleadings, 1. Summons and Condescendence. 22. A condescendence is evidence against the party of a faCt con- fessed in the condescendence, but it does not prove in his favour a further fact which would avoid the admission. Thus it wiU prove non-dehvery of stock to the purchaser, but not delivery to the order of the purchaser. Failure to file a special condescendence ordered amounts to confession. — Paterson v. OgUvie, Eobert. 499 (1724) ; Aff. 23. An action may proceed on a duplicate summons signeted after the first had been served, and dated after the date of the fiist, which it was alleged on one side had been lost, but on the other side was said to have been vitiated. — Northland v. Cadell> 4 P. 385 (1802); Aff. 24. A charge of fraud against the agent of the opposite party in a lawsuit, if pertinent to the case, is not to be struck out before proof. Observed, that if ultimately found impertinent and scandalous, it is worthy of consideration whether the counsel ought not to bear the costs, rather than the party. — Eobertson v. Graham, 3 Dow, 273 (1815) ; Eev. 25. A remit to valuators is equivalent to a proof, and bars an amend- ment of the Ubel, but if such amendment, when offered, is not objected to, it cannot be afterwards. — Johnstone's Trs. v. Elliot, 2 S. Ap. 461 (1824) ; Aff. 1 S. 51. 26. The subsimiption and conclusion being erroneously directed against Thomas, while the will was (correctly) against "WiUiam, and decree went out against WiUiam, the error is not one to prevent the judgment of the House on the merits on appeal, it being stated that if the House affirmed it could remit to have the error amended, and if it reversed the error was immaterial. — Craufuid v. MaoCormack, 2 W. & S. 569 (1827). 27. In a prosecution for statutory penalties the title of thd prose- cutor must be stated as falling under the precise terms directed by the statute, and it must be proved, and the offence must be proved by strict rules of evidence. — Black v. Campbell, 5 Dow, 23 (1817) ; Eev. See 34. 28. An heir of provision seeking to reduce, ex capite lecU, a deed executed by a previous heir of provision, must libel himself as heir to the party whose deed is to be reduced, not as heir to the original author 6 ACTION. [Pleadings. of the destination, and the objection may be taken even after a proof has been led on the merits, and cannot at that stage be remedied by a supplementary summons. — Harford v. Harvey, 2 Bligh, explained; Cogan V. Lyon, 4 W. & S. 391 (1830) ; Aff. 5 S. 92. 29. The inhabitant of a burgh claiming a right of servitude, as exist- ing in favour of the burgh, must claim it as inhabitant or owner, to the effect of having his right tried by a jury, and cannot foumd upon the possession of persons whom he only states as having property in the burgh similarly situated to his own. — Duke of Hamilton v. Aikman, 6 W. & S. 64 (1832) ; Alt. 8 S. 943. 30. A summons having Ubelled the pursuer's title as tacksman of salmon fishings, he cannot enlarge it by stating himself in the conde- scendence to be also proprietor of lands with a right of salmon fishing ; and though his title to sue is sustaiued, it may stUl be found that he has no title to obtain decree. — Mackenzie v. Houston, 5 W. & S. 422 (1831); Aff. 8S. 117. 31. After answers were lodged to a condescendence, ia which the defender fully set forth the facts on which he relied on the merits, held that it was too late for the Court to dismiss the action on the ground that the pursuer had set forth no relevant ground of action. Observa^- tions on the disadvantage of pleading matter of evidence, and the im- propriety of the Court considering matter of evidence in deciding upon the relevancy. —M'Donald «. Mackie. 5 W. & S. 462 (1.831) ; Eev. 8 S. 686. 32. An heiress of entail, served and infeft, is entitled to sue for penal rent which would have fallen under executry, on amending her summons by adding the words, " and only child of her said father.'' — Lawson v. Ogilvy, 1 W. & S. 397 (1834) ; Aff. 10 S. 5.31. 33. A condescendence ought not to set out a statute^ nor the argu- ment or interpretation suggested for it, as matter of fact. — Henry v. M'Ewan, 7 W. & S. 411 (1834). 34. In an action on a statute which requires " wilful corruption,, or oppression, or culpable negligence, out of which real injury has, arisen," to be libelled, it is enough to libel in the summons the acts complained of as being " irregular^ illegal, wilfully oppressive, and malicious," observed that " cruel" would be equivalent to " oppressive." — Stuart V. KeUy, 7 W., & S. 343 (1834) ; Aff. 11 S. 287.. See Damages. 35. When a summons must libel malice, &c., it is unnecessary that the condescendence should repeat the charge, if it set forth facts which support it. —Stuart v. KeUy, 7 "W. & S. 343 (1834) ; Aff. 11 S. 287. 36. An action, concluding for a partner's concurrence in a deed pro- duced, cannot be amended so as to call for his concurrence in a corrected deed.— Stewari; v. Gloag, M'L. & E. 721 (1839); Aff. 16 S. 86. Pleadings.] ACTION. 7 37. A party who lias appeared in an action in a Sheriff Court cannot object, after decree, that his name, though mentioned ia the statement in the summons, was omitted in the conclusion, there heing a conclu- sion against a class of individuals of whom he was one, and a second summons, remitted to hut not conjoiaed with the first, haying called him by name. — Creighton v. Eankin, 1 Eobin. 99 ; 7 CI. & Kn. 325 (1840); Aff. 16 S. 447. 38. A pursuer of a reduction of a sale under a trust-deed being only libelled as heic of entail, and the entail beiag by a different deed, the summons is not relevant and cannot be amended. — Munro v. Paul, 1 Eobin. 346 (1840) ; Aff. 15 S. 780. See 32. 39. A declarator, concluding to have the whole obligations, &c., set forth in the summons, declared binding on the defender, will support a decree in the pursuer's favour in respect of some of the obHgations ; but a summons narrating a variety of obligations, including some on which the pursuer makes no claim, and concluding for declarator on the whole, so far as unperformed, will be inept. — Tailors of Aberdeen v. Coutts, 1 Eobin. 296 (1840) ; Eev. 13 S. 226. 40. The Court ought not to permit an amendment of a summons which consists in converting a matter stated merely as incidental nar- rative into one of the grounds of the conclusions. — Scott v. Curie, 2 Eobin. 317 ; Aff. 2 D. 348. 41. A pursuer is never bound to state the minimum of what he is to be found entitled to, but under a larger claim may recover any smaller relief which is consistent with and grows out of the facts stated. (Per Lord Cottenham.) — Bremner v. Campbell, 1 S. Bell, 311 (1842); 1 D. 618. 42. A supplemental summons claiming interest on the sum claimed in the principal summons, after expiry of the period at which it coidd have been amended, is incompetent, and the irregularity is not covered by the defender in a reclaiming note praying the Court to alter the Lord Ordinary's interlocutor giving interest. — Union Canal Co. v. Car- michael, 1 S. Bell, 316 (1842); Eev. 43. A condescendence appended in a summons cannot by revision merely be made to support a plea rendered necessary by a decision given pending the suit, but must be amended to have that effect. — M'Ewan V. Campbell, 2 M'Q. 499 (1857); Aff. 16 D. 117. 44. Observations on the loose form of averring facts in Scotland, and on the use of rhetorical or metaphorical expressions. — ISTational Exchange Co. V. Drew, 2 M'Q. 103 (1855) ; 12 D. 950. See 96, 103— Appeal, 35. 2. Defences. 45. The tenor of writs in the defender's hands being libelled, and 8 action: [Pleadings. not acknowledged or denied in. the defence, held confessed. — Cuming V. Pantoun, Eohert. 582 (1726) ; Aff. 46. Before the question of a title to exclude can he gone into, the pursuer must first establish that on the facts he states he has a title to sue. — FuUerton v. Hamilton (Bargany), 4 P. 175 (1801) ; Alt. M. 11171. 47. A defender haying pleaded that the written document by his agent on which he was sued was given without his authority, but having gone on to state a particular want of authority in regard to one part of it, the Court is justified iu takiag the question of authority as established, and in going into the construction of the docum.ent. — Earl of Mansfield V. Scott, 6 W.4' S. 'ill ; 1 CT. ^ Fin. 319 (1833) ; Aff. 9 >S'. 780. 48. It is not correct to deny generally the statements in a con- descendence in so. far as inconsistent with the answer; each statement ought to be specifically admitted or denied. Pleas in. law ought to con- tain only allegations of matters in law, and not be mixed up with matters of fact ; a statement of fact is not converted into a plea in law by a reference to authorities being appended. — Pattison v. AUeli, 7 W. & S. 26 (1833). 49. Defences really on the merits, though called by the party, and in the interlocutor of the Lord Ordinary, dilatory, will be treated as on the merits, and may be appealed firom without leave. — Clyne's Trs. v. Clyne, M'L. & E. 72 (1839) ; 15 S. 911. 50. A party who has pleaded a plea iu bar must insist upon it either before trial, or as matter of law at the trial, and if he does not, he cannot urge it afterwards. — Campbell v. Campbell, 1 Robin. 1 ; 1 CI. ^ Fin. 162 (1840) ; Aff. See 64— Damages, 17. 51. A dilatory defence is one which merely objects irregularity or error in time or form of briagtag the action ; a peremptory defence is one which shows that the plaiatiflf has no case at any time or in any form. — GeUs v. Geils, 1 M'Q. 36, 3 H. L. Ca. 280 (1851). 3. Defence of Ids Alibi and Res Judicata. 52. An action being commenced in Scotland on the same ground on which a bill had been filed in. Chancery in England, the defence of lis alibi is repeUed on the pursuer abandoning the suit in Chancery and producing a decree dismissing ' his bill. — Cuming v. Pantoun, Robert. 582 (1726); Aff. 53. Circumstances suggesting coUusion will prevent a judgment from becoming pleadable as res judicata. — Lord Arbuthnot v. Spottiswood, Cr. ^ St. 284 (1740); Rev. See 5 Br. Sup. 709, for subsequent procedure. See also Entail, 41. 54. A decree finding that a deed was a marriage-contract, and barred a subsequent entail, pronounced in an action of reduction of such sub- Meelaiming.] action. 9 sequent entail by the heir of the marriage, does not form res judicata in an action at the instance of creditors holding a subsequent charge on the estate. — Sinclair v. Threipland, 3 P. 113 (1789) ; Rev. 55. A suspension and interdict does not form res judicata to an action of declarator of the right in question. — Earl of "Wemyss v. Hope, 3 P. 487 (1796) ; Aff. 56. The House having found that a certain obligation, being of a moveable nature, must affect the jus relictce, this does not form res judicata as to any question raised by the discovery of a bond of cor- roboration of the debt -which formed the subject of the obligation. — Graham v. Maxwell, 2 Dow, 314 (1814) ; Eev. 57. The decision of 1801, in the Bargany case, declared to have been only in reference to the action as then libelled, and not to preclude Mrs Fullarton from bringing a fresh action, in which, instead of founding on the nullity of the deed of 1747, she founded upon it as forming her own preferable title, and remit to consider that question on the merits. — Fullarton v. Hamilton, 1 S. Ap. 265 (1822) ; Eem. 58. A judgment of the House in a former case explained not to have been intended to form res judicata in a certain branch of the question. — Maule V. Maule, 2 W. & S. 451 (1826) ; Eev. 2 S. 26. 59. Decree given against a defender, under minute of consent, forms res judicata, though he afterwards alleges that his consent was given in consequence of erroneous advice by his soHcitor as to his legal rights under the law of England, by which they were regulated. — MacalUster V. Macallister, 4: W. Sf S. 142 (1830) ; Aff. 5 S. 871. 60. An interlocutor assoilzieing from an action " as laid," on the ground that the facts averred were not relevant and sufficient, is not res judicata in a new action laid on different grounds. — Giileqne v. Bussel, 3 M'Q. 757 (1859) ; Aff. 19 D. 897. See Aebitbatiok, 25 — Crown, 5 — Foreign Judgment. IV. Eeolaiming. 61. The House, in special circumstances, allowed a party to reclaim in the Court of Session, although the reclaiming days had expired. — Sawyer v. Earl of March, Cr. & St. 479 (1750) ; Eev. M. 16757. 62. The Court may, on a reclaiming note against an interlocutor of the Lord Ordinary ordering further proof, find the proof imnecessaryj and decern on the merits. — Hunter v. George, 7 W. & S. 333 (1834) ; Aff. 10 S. 604. 63. A reclaiming note praying to be reponed against a decree by default, must be marked by the clerk as lodged within the time limited for reclaiming, it being different from an application to be reponed against a decree in absence. Question as to competency of appeal 10 ACTION. [Incidental Procedure. without leave from an interlocutor refusing to repone. — Praser v. Gordon, W. & S. 559 (1835) ; Aff. 64. A Teclaiming note against an interlocutor of the Lord Ordinary sustaining objections to the relevancy of one of two conjoined actions, brings both before the Inner House, and enables it, if repelling the objection, to give decree on the merits. An objection to the relevancy might be made after defences and condescendence lodged. — Bumes v. PenneU, 6 S. BeU, 541 ; 2 H. L. Ca. 497 (1849) ; Aff. 10 D. 689. See 143. V. Ebs IfoVITBB VBNIEira. 65. A deed which had been in the party's possession cannot be alleged as noviter veniens. — Dixon v. Grahame, 5 Dow, 266 (1817); Rev. 66. Deeds recorded cannot be admitted after decree as res noviter veniens. — GrahameY. Grahame, 1 W. ^ S. 354 (1825); Aff. 1 S. 35. 67. An allegation that a witness after examination has made a statement shewing partiality is res noviter, and unless admitted to proof as such by interlocutor, cannot be received under an interlocutor allowing a proof on protest for reprobators. — Anderson v. Gill, 3 M'Q. 180 (1858) ; AS. See Evidence, 4, 19. VI. Consignation. 68. Consignation may be ordered in an accounting before the ob- jections of the party in possession of the funds to the judgment, finding biTn liable in payment, are disposed of. — Brown v. Paterson's Trs., 4 W. & S. 57 (1830) ; Aff. 5 S. 204. 69. An order to consign is a matter entirely discretionary with the Court. Held that it ought not to have been made against English trustees for creditors on the debt having been constituted by action in Scotland, but the pursuer having failed as yet to make out a good title to receive payment. — Eindlay v. Donaldson, 5 S. Bell, 105 (1846) ; Eev. VII. iNCIDENTAIi PbOCBDUEE. 70. In a competition lespectiug lands and dignities, it is desirable (per Lord Eldon) that if possible the question of the dignities should be decided first (p. 383), but held that a question of law on the con- struction of a deed should be decided before entering into evidence of propinquity, it being clear that the title lay amongst the parties com- peting. — KerT. Innes (Eoxburgh), 5 P. 320 (1810). 71. No objection to the non-authentication of the process in closing the record can be entertained after the verdict. — Bain v. Whitehaven Ey. Co., 7 S. BeU, 79 ; 3 H. L. Ca. 1 ; 12 D. 829 (1850). Proof.] ACTION. 11 72. A remit oh contingentiam is competent, altliough both the parties in the two cases are not the same, nor the question the same, and though the first case has heen carried hy appeal to the House of Lords. — Cleland v. Clason, 7 S. BeU, 153 (1850) ; Aff. 11 D. 601. 73. The record heing opened on remit, and new pleas added, hut no new interlocutor pronounced, the parties agreed at the heariag on appeal to hold the former interlocutors as if pronounced in the new record. — Edinhurgh and Glasgow Ey. Co. v. Mags, of Linlithgow; 3 M'Q. 691 (1859). 74. The Court will properly refuse to conjoin actions where one of the parties alleges that such a course would prejudice his defence. • — Wauchope v. North British By. Co.y 4 M'Q. 348 (1862) ; Aff. 23 D. 119. VIII. Pboof. I. Productions on by Goramiidon, 75. After the time for reporting a proof by commission has expired, and a diligence has been obtained for examination of such as had refused to appear, it is incompetent, although circumduction has not passed, to apply for a new commission to examine others, or to re-ex- amine any already examined, unless on res nomter, or such as had been disclosed by the proof as important and were not known before, or on fraud. — Gordon v. Brodie, Eobert. 259 (1720) ; Aff. See Appeal, 12. 76. An examination of a Scottish peer, and party to a suit, allowed to be taken in London, although the other party declared that from , poverty he could not attend out of Scotland. — Eobertson v. Earl of Einnoul, Eobert. 394 (1721); Aff. 77. It was usury to include in the capital sum of a bond usurious interest for the fijst term ; and on this being alleged, the creditor was ordered to confess or deny the facts, and commission was granted to the Chief Justice of England to examine witnesses and inspect the creditor's books and take excerpts. Pending the inquiry the creditor was ordered to transfer to the Clerk of Court the collateral securities granted, and till this was done the Clerk was ordered to retain the promissory-note sued on. — Brand v. Gumming, B/jihert. 511 (1725) ; Aff. 78. A widow having brought an action on her marriage-contract against her son, is bound to produce her counterpart of the contract, defender pleading that she had failed to implement her own obligations, and that his counterpart of the contract was filed in a Chancery suit in England. — Duchess y. Dulce ef Hamilton, Robert. 604 (1727); Aff. 79. Evidence taken in virtue of a commission and diligence granted by the Court for the examination of witnesses under a submission, was admitted by the Court of Session to be read in a subsequent action on the 12 ACTION. [Proof. same grounds, and an appeal against the order was dismissed, on the ground that the appellant had acquiesced for seven years. — Cunningham V. Chalmer, Cr. ^ St. 267 (1740) ; Aff. M. 14044. See Evidence, 2, 16. 80. A haver destroying documents called for after he has heen cited is guilty of high indiscretion, and will be, even if not a man of busi- ness and acting inadvertently, visited with expenses of a petition and complaint against him. A party destroying documents before their production is called for may act indiscreetl;f, but is not deserving of punishment. — Rohertsons v. Alexander, & W. ^ S. I ; 2 Dow ^ Clark, 312 (1831) ; Rev. 8 S. 1055. 81. Diligence will not be allowed for the recovery of writs alleged to contain a qualification of an absolute conveyance, without specifica- tion, by date or otherwise, of the precise writ sought to be recovered. — Eobertson v. Pattinson, 5 S. BeU, 259 (1846) ; Aff. 6 D. 945. 82. A document which, though not part of the case, is a material part of the evidence founded on, and is in the possession of the pur- suer or his agent, must be produced before the record is closed, but the Court may order its production for the purpose of evidence in the course of the proof. — Anderson v. GiU, 3 M'Q. 180 (1858); Aff. See 65, 66. 83. A diligence to recover documents may properly be refused tUl the relevancy of the action has been sustained. — Orr v. Glasgow, Airdrie, &c. Ey. Co., 3 M'Q. 799 (1860) ; Aff. 20 D. 327. See 62— Bill, 12. 2. Judicial Remit. 84. The Court is entitled to look at the grounds stated in the report as those on which the party to whom a judicial remit has been made has formed his judgment. — Dixon v. Campbell, 2 S. Ap. 175 (1824) ; Aff 85. After a judicial remit of consent, neither party can claim a trial by jury of the same question. — Eraser v. Maitland, 2 S. Ap. 37 (1824) ; Aff. See 25. 86. After consent to a judicial remit, a party is barred from leading evidence. — Dixon v. Monkland Canal Co., 1 "W. & S. 636 (1825); Alt. 1 S. 145. See 25. 3. Oath of Party. 87. A party acquitted in the Court of Justiciaiy is still liable in damages in the Court of Session, and may be compelled to depone on reference to his oath ; and failing his appearance to depone, the pur- suer may give his oath in supplement. The granting commission to take oath of reference of a party out of the country, is discretionary with the Court. — Gordon v. Gordon, Cr. & St. 60 (1731) ; Aff. JProof.] ACTION. 13 88. On a reference to the oath of two partners as to certain facts respecting a hond due to one of them only hy name, but alleged to be for the firm, it is competent to take the oath of only the creditor named, the other partner being abroad. — Earl of Traquair v. Burrows, 6 P. 99 (1815) ; Aff. 89. Evidence of intercourse at a date long prior to the period alleged, does not amount to semiplena probatio warranting the oath in supple- ment. A stepdaughter was an inadmissible witness under the old law of evidence. — Humphry v. Aitken, 1 S. Ap. 3 (1822) ; Aff. 90. A party having deponed, on a reference to his oath, that the sum sued for as having been lent to him, was really given under cir- cumstances which warranted the inference that it was not intended as a loan but to effect a collateral purpose, the oath was held negative. — Hamilton v. Eichniond, 1 W. & S. 35 (1825) ; Aff. 2 S. 143. 91. A pursuer having in his oath of calumny refused to answer whether a particular sum, which alone was in dispute, was in his belief still due to him, but having sworn generally that he believed money to the extent sued for was due him, the oath held negative as to the particular sum. — Duguid v. Mitchells, 1 W. & S. 203 (1825) ; Aff. 3 S. 96. 92. An appeal as to a sum. of L.l, 4s. and costs, amoimting to L.30, dismissed, not on the ground of the smallness of the sum, but on the merits, the debtor having, iu a reference to oath, deponed that he knew the sum had been paid by his father, as he had settled with him on that footing, although no note of the payment appeared in the factor's accounts. — Cooper v. HamUton, 2 W. & S. 59 (1826) ; Aff. 2 S. 728. 93. Opinion by the Lord Chancellor, that conviction of a crime, inferring infamy and so disqualifying as a witness, is no objection to being called on to depone on reference to oath, but in other special circumstances the reference refused. — Eitchie v. Mackay, 3 W. & S. 484 ; 4 Bhgh, KS. 535 (1829) ; Aff. 4 S. 534. 94. Eeference to oath will not be allowed in respect of irrelevant facts. — Stevenson v. Eowand, 4 W. & S. 177; 2 Dow & CI. 104 (1830) ; Aff. 6 S. 272. 95. Eeference to oath, in regard to a claim cut down by prescription, is not superseded by the admission of the character in which the debt is alleged to have been incurred, and the non-assertion that it has been paid. — MacdougaU v. CampbeU, 7 W. & S. 19 (1833) ; Aff. 8 S. 959. See Appeal, 122— Bill, 9, 13— Counsel, 3— Evidence, 5, 8, 9. 4. Jury Trial, (a.) Practice. 96. Before trial by jury could be of advantage in Scotland they must 14 ACTION. [Proof. first alter their mode of pleading ia that coimtry. (Per Lord Eldon.) — Wilson V. Alexander, 5 P. 188 (1807). 97. Observed by Lord Eldon that the introdnction of trial by jury was much to be desired. — Smith v. MacneU, 2 Dow, 544 (1814). 98. On a view being ordered, the viewers are to be selected from the jurors returned for the county in which the cause of action arises. When a motion for a new trial has been made and refused, the inter- locutor cannot be appealed from, and the verdict being thus established, there can be no appeal upon any other ground on which it could be challenged. —M'Kemie v. Eoss, 1 S. Ap. 99 and 109 (1822) ; AS. 2 Muir, 20. 99. After a remit to the Jury Court, under the 59 Geo. IIL c. 35, and the cause being retransmitted by consent to the Court of Session for judgment on a point of law before trial, it was competent to order a proof by commission. — Mags, of Lanark v. Hutchison, 2 S. Ap. 386 (1824); Aff. 2S. 318. 100. After a case has been remitted for trial by jury, it is incompetent to have it of consent remitted back to have the evidence taken on com- mission. — Craig V. Duffus, 6 S. Bell, 308 (1848) ; Aff. See observa- tions on this case in Dudgeon v. Thomson, 1 M'Q. 714. 101. When an action is not merely for damages, but in addition ad factum praestandum, it is not imperative to send it to a jury. ■ — • Crau- furd V. Dixon, 2 W. & S. 354 (1826) ; Aff. 2 S. 667. 102. A question as to intromission as heir with the ancestor's estate is proper to be tried by a jury. No appeal lies against an order of the Lord Ordinary remitting a case for such trial. — Montgomerie v. BosweU, M'L. & E. 136 (1839) ; Eev. 16 S. 1086. 103. It is unnecessary to send a case to a jury when, on the docu- ments referred to by the pursuer being examined, it is apparent he has no case. If a party sets out part of a document, he is bound to set out the whole, in so far as it bears on the case. — Bell v. Mylne, 2 Eobin. 286 (1841); Aff. 16 D. 1136. 104. A pursuer of a declarator of marriage, coupled with alternative conclusions for damages for seduction, is not entitled to have the latter branch sent to a jury ; circumstances held not to amount to seduction. — Stewart v. Menzies, 2 Eobin. 547 ; 8 CI. & Fin. 309; Aff. 15 S. 1198. 105. The order directing a cause to be tried at a circuit town, but not at the time of the circuit, under 1 WiU. IV. c. 69, § 11, need not be in writing. Observed that if vsrriting had been necessary, the appear- ance of the parties wotdd not have cured the want of jurisdiction arising from the want of writing. — Cleland v. Paterson, 4 S. BeU, 175 (1845) ; Aff. 5 D. 345. 106. Though parts of the statute 5 and 6 Will IV. c. 83, respect- Proof.] ACTION. 15 ing patents apply to Scotland, the fifth section requiring notice of ob- jections does not, such notice heing provided hy the system of pleading in Scotland. (Per Lord CampheU) — ^The practice of the law of Scot- land in confining the parties in a trial of the general issue to the statements made in the record, is very salutary, and it is desirable that similar rules prevailed in England. — Househill Co. v. Neilson, 2 8. Bell, l;^Gl.^ Fin. 788 (1843) ; Aff. 5 D. 86. 107. When an issue has been sent for trial, it is improper for the presiding judge to suggest that it contains rather matter of law than of fact, and therefore that a special case should be substituted for the verdict of a jury. —Oswald v. M'Whir, 1 S. & M'L. 393 (1835); Eev. 11 S. 552. 108. An objection that in a case belonging to the Second Division the First Division made an order appointing one of the parties to be the pursuer in a jury trial, not having been made at the time, cannot be made after the verdict. — Lumsden v. Duff, 7 S. Bell, 288 (1850) ; Aff. 9 D, 1402. See 105, and Acquiescence, 5. (6.) Issues. 109. After an issue is adjusted, it cannot be explained by reference to the record, and to the other circumstances in the case. Therefore, when the issue was to try whether a certain dam-dyke was to the injury and damage of the pursuer as proprietor of salmon-fishings, it is wrong to direct the jury to consider what would be the efiect of other dam- dykes on the fishing, supposing the one in question were removed. — Leys V. Lord Forbes, 5 W. & S. 384 (1831) ; Aft 9 S. 933. 110. A question being raised whether certain stake-nets feU within the exception of a statute, as being " within the water of Solway," held that such question ought to be put directly by the issue, and that an issue, whether or not they were "within the boimds of the river Nith," was irrelevant and useless. And the parties having by a state- ment of facts, which it was agreed should have the effect of a special verdict, stated that the nets were placed on sands within the Mth, above the point at which it joins the Solway Firth at low water ; remit to direct a new issue to ascertain whether that point is within Solway water or not. —Oswald v. M'Whir, 1 S. & M'L. 393 (1835) ; Eev. 11 S. 552. 111. An issue to inquire whether the defender did certain acts, should not add the words, " or cause to be done," as that is implied in the former expressions. " To the loss, injury," is superfluous ; " to the damage of the pursuer" being the proper phrase. (Per Lord Brougham.) — Oswald V. M'Whir, 1 S. & M'L. 393 (1835) ; 11 S. 552. 112. An issue whether an act be to the loss, injury, and damage of 16 ACTION. [Proof. tlie party suffering, is different from one inquiring whelher it he to the damage only, the former inTolving the question of the HaMity in point of la-w, as well as the damage in. point of fact. (Per Lord Cottenham.) — Duncan v. Findlater, M'L. & R 925 ; 6 GL & Kn. 894 (1839). 113. An issue ought to contain only one question, capable of only two answers, not one capable of three or more answers. In a question as to knowledge of a wiU, the fact of the wiU being referred to by its date in the issue, does not render knowledge pf the date a point mate- rial to be proved. — Cleland v. Weir, 6 8. BeU, 70 (1847) ; Eev. 9 D. 199. 114. It is improper to couple two distiact grounds of action ia one issue, such as " fraudulent concealment or fraudulent misrepresenta- tion." The jury, if such an issue is brought before them, ought to be directed to return a special verdict, applying to each question sepa^ rately. If o judgment can pass upon a verdict unless the record sup- ports it. — . Irvine v. Kirkpatrick, 7 S. Bell, 186 (1850) ; Eev. 10 D. 367. (c.) Verdict. 115. The findings of a jury are conclusive, even though the Court may afterwards be of opinion that the case ought not to have been sent to a jury ; but though they may negative actual fraud, the Court is still bound to consider whether, on the iindings, there is not a case of legal fraud. —Spier v. Dunlop, 2 W. & S. 253 (1826) ; Eev. 4 S. 92. 116. Undistinguished damages being given in an action of which one of the grounds was found irrelevant under a bUl of exception on appeal ; remit to grant a new trial — Moing v. Gullen, Q W. ^ 8. 5Q& (1833) ; Rev. 10 S. 497. 117. When a summons charges a joint and several liability, and the verdict of the jury finds the defenders " liable," there is no variance between the summons and the verdict, and the verdict wiU. be in- terpreted by the summons. — Campbell v. Campbell, 1 Robin. 1 ; 7 CI. ^ Fin. 166 (1840) ; Aff. 118. "Where an issue is directed as to aU or any of certain documents being obtained by fraud or intimidation, and the verdict is entered " for the pursuers," it is a misprision of the clerk in so entering it, for it ought to be entered as an affirmative of every question put in issue as to aU. the documents. It is to be presumed that the judge directed the jury that a general verdict must have that interpretation ; and it is in the discretion of the Court, on the judge's notes, to amend the entry of the verdict accordingly. Observations on the inconvenience of alternative issues. — Marianski v. Caims, 1 M^Q. 212; 1 Stu. 1108 (1851); Ag. UD. 1286. 119. After a trial, on a motion to have the verdict entered up in pursuance of leave reserved, it is incompetent to look at the pleas in Prw/.} ACTION. 17 law to explain the issue. — Erydon v. Steioart, 2 M'Q. 30 (1855); Rev. 120. Under a double issue, 1st, Whether A. is heir-at-law ; and, 2d, Whether A. and B. are next of kin, the jury brought ia a verdict, " We find the case of the pursuer not proven." Held that the issues were right (diss. Lord Brougham), and the verdict not defective iu form, but bad, because of uncertainty as to which of the issues it applied to, and only necessarily meaning that both could not be affirmed. Held that, in such a case, an appeal lay from the interlocutor applying the verdict, without application for a new trial in the Court below. — Morgan v. Morris, 2 M'a 342 (1855) ; Rev. 16 D. 82. 121. After evidence given, a jury ought not to be discharged with- out finding a verdict for one of the parties, or a special verdict of facts, and except with consent of parties they cannot find for one or other, subject to the opinion of the Court, on a point of law. But the con- sent of parties to the case being left to the Court on points of law, after evidence is taken, but without a verdict, does not make the Court an arbiter, and consequently its judgment remains subject to appeal. — Dixon V. Bovill, 3 M'Q. 1 (1857) ; Aff. 16 D. 619. Maclcenzie v. DrniJop, 3 M'Q. 22 (1857) ; Aff. 16 D. 129. 122. On a remit to the Court below, with declaration that the verdict of the jury set forth in an appeal against a judgment applying it, was uncertain, the Court has no power to amend the verdict, but ought to order a new trial It is in the power of the House to order a new trial. On such order, costs reserved. — Morgan v. Morris, ^ M'Q. 323 (1858) ; Rev. 18 D. 797. See 138. 123. On a remit by the House to the Court below, that the Judge who presided at a trial may amend the entry of the verdict according to the substance of the actual findings, and of his notes, it is competent to the Judge to make such amendment from his recollection of the direc- tions he gave the jury, although he has no notes, and on such amendment being reported to the House, it proceeds to dispose of the original ap- peal. — ilfanawsH v. Cairns, 1 M'Q. 766 (1854) ; Aff. 15 D. 268. {d.) Bill of Exceptions and New Trial. 124. A bill of exceptions ought to state the whole of the Judge's observations in the ruUng excepted to, but it does not he for a state- ment as to the effect of the evidence, which can only form ground for a motion for a new trial. There should be only one bill of exceptions on a trial, which ought to include aU the points excepted to ; but —Query, Whether it is competent to bring two appeals on separate bills of exceptions tendered at the same trial f — Dm/ v. Earl of Fife, 2W.^ 8. 166 (1826) ; Aff. 4 S. 335. 18 ACTION. [Proof. 125. Although in a jury trial the admission of improper evidence necessitates a new trial, it does not do so when the evidence is con- sidered by the Court, and their decision does not proceed on the ohjectionahle portion. (Per Lord Wynford.) — Galbraith v. Oalbraith, ?>W.^S. 84 (1831). See Appeal, 112. 126. A bni of exceptions should only state the ruling objected to, and Should not state what the ruling should have been. — Lefys y. Lord Forbes, 5 W. ^ S. 384 (1831) ; Aff. 9 8. 933. 127. The Court, in considering a bUl of exceptions on the ground of misdirection in point of law, are bound to decide whether the law laid down was right or not, and cannot go into the circumstances of the case and the evidence. — Gordon y. Graham, 2 Rohin. 251 ; 9> CI. ^ Fin. 107 (1841); Rev. F.C. M Feh. 1841. 128. If by a direction of the Judge the jury might have been led into error, the exceptions must be allowed and a new trial granted, although the Court is of opinion that on the evidence the verdict was light.— Househill Co. v. Neilson, 2 S. Bell, 1 ; 9 CT. ^ Fin. 788 (1843); Rev. b D. 86, 1180. 129. The jury is supposed to pay equal attention to all the Judge says, and therefore his charge is to be read together, and not by isolated passages. It is not sufficient to support a bUl of exceptions that the charge did not lay down the law in the clearest possible manner, if the law is not mis-stated. One exception being withdrawn at the bar of the House, the fact stated in the judgment. — Ross v. Duke of Suther- land, 3 S. Bell, 315 (1844) ; 6 D. 425. 130. If evidence is only objected to on the ground of surprise, and that is not a valid objection, no other can be considered than that set forth in the bUl of exceptions. — Bain v. Wliitehaven By. Co., 7 S. Bell, 79; B H. L. Ca. 1 (1850); Aff. 12 D. 829. 131. It is irregular for a Judge to insist, after the verdict, on intro- ducing new matter of explanation into the biU of exceptions actually tendered to him and signed by him previously ; but on such amended bin of exceptions being certified by hini, the Coiu?t is precluded from listening to any objection to it. — Earl of Glasgow v. Hurlet Alum Co. 7 S. Bell, 100; 3 H. L. Ca. 25 (1850); Aff. 12 D. 704. 132. The ruling of the judge must be stated accurately where ex- cepted to. The Court cannot look at the documents to which the ruling applies unless authenticated by the Judge's signature. Although evidence is rejected, and exception taken, it is the duty of the party who tendered it to give all the other evidence in his power, and in considering the effect of the evidence rejected he wiU be assumed to have done so. — HutchinsonY. Ferrier, 1 M^Q. 196; 1 Stu. 677 (1852); Aff. 13 D. 837. Decree.] ACTION, 19 133. A recommendation by the Judge is equivalent to a direction. The Judge may append to a biU of exceptions to his charge a note of what he really said. — Sutton v. Ainslie, 1 M'Q. 299 ; 1 Stu. 702 (1852) ; Aff. 14 D. 184. 134. In a question as to the existence of a partnership between pawnbrokers, the defence beiag that it was illegal, as the name of the alleged partner did not appear over the door and in the licences and pawn tickets, it is for the jury to find whether or not this was part of the original contract, because if not it would not vitiate the partnership, and the Judge ought not to chtage the jury that on the facts proved there was no lawful partnership. — Fraser v. Hill, 1 M'Q. 392 ; 2 Stu. H. L. 65 (1853) ; Rev. 14 D. 335. 135. A bill of exceptions allowed where the Judge told the jury that the pursuer could not recover when the question was one of fact on which there was evidence for the jury. Costs in the Court below may be given when the House reversing disallows exceptions, but not when it allows exceptions, because in that case the error has been in the Judge. —Paterson v. Wallace, 1 M'Q. 748 (1854) ; Rev. 16 Z). 243. 136. A bill of exceptions is always construed strictly, and if the words excepted to as stated therein are sound in law, the Court cannot consider the intention to have been to state them otherwise. Opinion that the form of special case should be introduced in substitution for biU of exceptions.— .^2/Zev.Jeire2/s, 3 Jf' a 611 (1859);^/. 18 Z). 906. 137. The Court, in ordering a new trial by jury, may order a new issue. — InglisY. Great NoHhem Ry. Co. ; 1 M'Q. 112; 1 Stu. 749 (1852) ; ^/. 13 D. 1315. 138. 'E&vf trial ordered where the ruling of the Judge might have misled the jury. When there is no appeal against the issue a. new trial can only be ordered on the same issue. — Cleland v. Weir, 6 S. Bell, 70 (1847) ; Rev. 9 D. 199. See Appeal, (Jury Cases), p. 28, and No. 112 — Evidence, 20. IX. Decebe. 1 39. After decree reserving certain points it is incompetent to object either that they did not faU within the conclusions of the action, or that there was lis finita regarding them. — Cookburn v. Hamilton, Eobert. 32 (1712) ; Eev. 140. A decree founded on another decree, which is not produced to the Court, is null. — MaxweU v. Sharp, Eobert. 380 (1721) ; Afif. 141. After an interlocutor deciding the main question, the Court of Session allowed the losing party ten days to bring his accounts for counter-claims; he appealed, before that time expired, against the principal interlocutor, and it was affirmed. It is then incompetent b2 20 ACTION. [Decree. for Tii'm to 'bring in his accounts under the second interlocutor, hut reserving his right to hring an action for any articles that might be due him. — An-att v. Wilson, Eohert. 409 (1722) ; Aff. 142. In a declarator praying to have certain rights found, it is in- competent for the Court to issue findings for other questions than those raised in the summons. — Munroe v. Forhes, 3 P. 23 (1785) ; Eev. 143. The Lord Ordinary may, after the reclaiming days, explain the meaning of his interlocutor. — Earl of Aboynft v. Innes, 6 P. 444 (1819) ; Aff. r. C. 22d June 1813. 144. An interlocutor having directed general objections to be lodged, reserving particular objections, it is not competent to decide finally on objections without calling for particular objections. — Lord Mont- gomerie v. Wauchope, 4 Dow, 109 (1816) ; Eem. . 145. Though a foreign debt was incurred in dollars, the Court ought to express it in sterling money in its decree, but held that they were right in giving interest at the Scottish, not the American rate, from the date of action. — Hyslops v. Gordon, 2 S. Ap. 451 (1824) ; Alt. 146. Decree having inadvertently been given for sterling money, when the sum concluded for was expressed in colonial currency, the cause remitted to ascertain the true corresponding amount in sterling money, and to alter the decree accordingly. — M'Braire v. Hamilton, 2 W. & S. 66 (1826) ; Eem. 4 S. 24. 147. A jury being of consent dismissed on the terms that the de- fender, in settling virith the pursuers for L. 3000, which he acknowledged himself to have intromitted vrith, should be allowed credit for L.1000 as his outlay and account, the Court is warranted in decerning deplano for payment by the defender of L.2000. — BaiUie v. BaiUie, 6 "W. & S. 498 (1833) ; Aff. 148. "When the Lord Ordinary has stated the principle on which an accounting is to be carried on, and the Inner House has adhered to the interlocutor, and remitted to the Lord Ordinary to proceed, it is incom- petent for him to adopt a different principle, even although the Court adhere to it. — BaiUie (Clyne's Trs.) v. Stewart, 2 S. & M'L. 45 (1835) ; Eev. 11 S. 727. 149. It is competent for the Court to decide first the general principle, reserving its application. — Alexander v. MacaHster, M'L. & E. 353 (1839) ; Aff. 15 S. 1061. 150. Unless there is an express finding of the Court, the general decree of absolvitor " sustains the defences," — does not affirm the pleas of the defender.— Kerr v. Dickson, 1 S. BeU, ,499 (1842). 151. Findings in law need not include incidental findings as to the burden of proof or rejection of evidence, — Anderson v. GiU, 3 M'Q 180 (1858). Grounds of.] ADJUDICATION. 21 152. When a summons of declaxator claimed certain rights, part of which the defenders did not dispute, and on the remainder of which they were assoilzied, the judgment was of absolvitor feom the conclu- sions generaUyy the House holding that the record would sufficiently shew what had reaUy been in dispute. — Edinburgh and Glasgow Ry. Co. V. Mags, of Linlithgow, 3 M'Q. 691 (1859). 153. It is not proper that the Lord Ordinary, after a proof in the Sheriff-Court, should merely adhere simpliciter to the interlocutor of the Sheriff, and the Court will properly remit to him to find the facts specificaUy.— Wishart v. WyKe, 2 St. H. L. 68 (1853) : iijff 13 D 1100. V /J 154. When the Lord Ordinary has specifically found the facts established by proof in an advocation, and the law thereupon, it is sufficient if the Inner House adhere simpliciter to his interlocutor. — Weems v. Mathison, 4 M.'Q. 215 (1861). See Appeal — ^Eemit. X. Peocbduhb on Ebmit. 155. When the House has remitted part of a cause for review, any interlocutor by the Court below on what is not included in the remit, is null and void. — Blane v. Earl of CassiHs, 5 P. 307 (1810). 156. The Court is not entitled in any case to suspend the application of a judgment of the House of Lords. — Stewart v. Aenew 1 S An 413 (1823). o > • 1- 157. The Court of Session cannot refuse to apply a judgment of the House of Lords on the ground that it was rendered imperative by a reduction obtained in the Court of Session and not appealed from. — Davidson v. Lockwood, 2 S. Ap. 357 (1824) ; Eev. 158. Interlocutors pronounced by the Court of Session on a remit by the House, if on a branch of the case not intended to be remitted, will be declared void. — Cathcart v. Earl of Cassihs, 1 W. & S. 239 (1825). 159. If a petition to the Court to apply the judgment of the House of Lords prays for more than the judgment warrants, the surplusage should be dismissed with costs. — Whitehead v. Galbraith, 4 M'Q 283 (1861). ADJUDICATION. I. GROTmns of, ... p. 21 | III. Banking of, .... p. 23 II. Possession on, 22 | I. Geounds op. 1. The principal penalty in a bond, and also the termly penalties for non-payment of interest, cannot be included in an adjudication, 22 ADJUDICATION. [Possession on. and where they are, the adjudication is reduced to the effect of only standing as a security for the principal sum. and interest to the date of the adjudication ; or a judicial sale of the estate, proceeding on such adjudication, is reducible even after the lapse of sixty years. — Nasmyth V. Samson, 3 P. 9 (1785) ; Aff. M. 120. 2. Interest accumulated m an adjudication becomes heritable. — Sinclair v. Young, 3 P. 64 (1787) ; Aff. M. 5545. 3. An acknowledgment of debt " for 250(3 or 2300 merks, I know not whether," is a good ground of adjudication for 2500 merks. The accumulation of interest, with capital, in an adjudication, is of the nature of a penalty, and therefore held inadmissible imder the Vesting Act, 20 Geo. II. c. 41, which disallowed any claim for penalties. — Lord Advocate v. Mackenzie, 6 P. 709 (1756) ; Eev. M. 220. II. Possession on. 4. An adjudication being in part reduced, and, as to the remainder, found extinguished by intromissions, the adjudger is bound to account, as in mala fide possession, for his intromissions from the date of citar tion in the reduction and arrestment of the rents. — "Walker v. Forrester, Kobert. 405 (1722) ; Eev. M. 302. 5. In an action of maills and duties by an adjudger, the owner of the estate cannot be allowed to object to the adjudication as extin- guished by payment, or informal, without bringing an action of declarator, or reduction, and the estate is meanwhile sequestrated. Question as to jurisdiction of the Court of Session, and the liabilities of superiors taking an estate under the Forfeiture Act. — Earl of Suther- land V. Dunbar, Eobert. 531; 19 Ap. (1725); Aff. , 6. Charter and sasine on an adjudication does not prevent it being worked off by prescription when not followed by possession or acknow- ledgment within the years of prescription ; and possession of part of the lands under the adjudication and acknowledgment interrupts prescrip- tion only as to that part. Interest on the original debt only allowed from the first citation in the action for maiUs and duties. — Clarke v. Earl of Home, Cr. & St. 533 (1753) ; Alt. M. 10662. 7. Possession for forty years after declarator of the expiry of the legal, but without charter and sasine, does not give a prescriptive title, and the adjudger is stUl liable to account to a posterior adjudger. — Gillespie v. Bogle, 3 P. 305 (1793) ; Aff. 8. A decree of declarator of expiry of the legal cannot be opened up on a plea oi pluris petitio in the adjudication, as against an onerous purchaser of the estate, but it may be opened up to make the adjudger's heirs liable to account. — Hutchison v. Young, 6 P. 783 (1771) ; Aff. 9. Adjudication, whether followed or not by infeftment, but followed ALIEN. 23 by crown charter and sasine, and possession for forty years after expiry of the legal, though no declarator of expiry was obtained, is a good title.— Eobertsonw. Duke of Atholl, 3 Dow, 108 (1815). 10. Prescriptive possession on charter of adjudication and. sasine ex- cludes objection to the warrant of the adjudication, — Lawrie v. Livingstone, 6 P. 194 (1816) ; Aff. See Feaud, 4. III. Banking of. 11. Subsequent adjudications within year and day of the first not made void by the circumstance that they have not been iutimated under the statute 23 Geo. III. c. 18, § 5. — Du Eoveray v. Mackenzie, 3 P. 409 (1795) ; Aff. See Bankkuptct, 53 — Conveyancing, 2 — Cbown, 4. ADMIEALTY. 1. The Admiralty Court of England, not that of Scotland, has juris- diction over a prize brought into a port in Scotland by private captors without commission. — Jackson v. Monro, 2 Br. P. O. 411 (1779); Eev. M. 7522. 2. An action to have a ship condemned as prize is not competent in the Admiralty Court of Scotland, nor in the Court of Session. — Hendricks V. Cunningham, 2 P. 609; 5 Br. P. C. 328 (1783); Eev. M. 11959. 3. A crown charter granting " wrack, wair, and waith" does not confer on the grantee the power of a Court of Admiralty, and neither as such, nor as justice of the peace, is he entitled to take a vessel in distress out of the hands of sailors already in possession of it. — M'Dowallr. M'DowaU, 1 W. 4r S. 22 (1825); Aff. 4. An arrestment juris, fund, causa obtained against a foreigner in the Admiralty Court, in a case not maritime, did not establish jurisdic- tion, and such jurisdiction could not be supported by the fact that the foreigner has sisted himself as pursuer in actions in the Court of Session. — Stirling v. Houston, 1 W. & S. 199 (1825); Aff. 2 S. 672. See Belligeeent. Advocate. — See Counsel. Agent. — See Law-Agent — Peincipal and Agent. ALIEN. 1. A natural-born subject of England had issue bom before the 7th of Anne, out of the legiance of the queen, and such issue had issue 24 ALIMENT OF HEIK. born out of the legiance of the king ; this second issue is an alien, not capable of taking lands for his own benefit in the United Kingdom. Question submitted to English judges. — Leslie r. Grant, 2 P. 68 (1763) ; Aff. 2. The Act 1695, establishing the Bank of Scotland, declares that all the subscribers to its stock shall become naturalised Scotsmen, but that provision applied only to the original subscribers and not to pur- chasers from them. Query, Whether a declarator of naturahsation in which the Officers of State are made defenders, is a proper form of action for trying such a question, and whether the Court of Session, being a local jurisdiction, would, after the Union, have jurisdiction to declare the pubUc law of the whole kingdom. (Per Lord Eedesdale.) — Macao v. Off. of State, 1 S. Ap. 138 (1822) ; Aff. F. C. Uth Nov. 1820. See FoKFBiTUBB, 16 — Legitimation, 1, 7. ALIMENT OF HEIE. 1. -A father with an estate of from L.500 to L.600 per annum, and personal estate of about L.5000 capital, having granted his eldest son an aliment of 2000 merks (L.lll), it ought not to be raised by the Court.— Moncreiffw. Moncreiff, Cr. & St. 162 (1735); Eev. 2. On the marriage of a ward of Chancery, a settlement of the per- sonal property was made by the Court on her for life, and after her death to the children, vesting in them at twenty-one, and the real estate to her for life, remainder to her eldest son in tail. After her widow- hood she removed to Scotland and married there. Held that her eldest son by the first marriage had, after majority, a valuable vested interest in the whole property, on which he could raise money for his support, and on that ground, as well as that the settlement was an English deed, conclusive of the rights of the children, that he had no claim for aliment. — Wooley v. Maidment, 6 Dow, 257 (1818); Mev. F. a 25fh May 1815. 3. A son having the pay of ensign and L.lOO a-year allowance from his father, who was worth L.10,000 a-year, held not entitled to further aliment. 06s. That the Stat. 1491, c. 25, does not compel a Kferenter to support the fiar who is no relation to him. — Maule v. Maule, 1 "W. & S. 266 (1825); Eev. 2 S. 464. 4. An entailer having by relative trust-deed given the estate to trustees for thirty years after his death, for the purpose of excluding the next heir from possession, the latter has no claim for aliment out of the estate, having a small income from other sources. — Lord Glammis V. Paul, 1 W. & S. 183 (1825); Aff. 2 S. 234. Appeal Cases^ APPEAL. 25 5. A peer excluded ^llJ trust-deed from the rents of the family estates, hut having received L.12,000 from his father, has no claim against the trustees for aliment. — Earl of Strathmore v. Paul, 1 W. ^ S. 402 (1825) ; Aff. 2 S. 84. Aliment of Wife. — See Husband and Wife. Of Mothbe, see Damages, 11. Alimentary Provision. — See Assignation, 1 — Provision. I. Appeat. Cases, . . p. 25 11. •From what ConRTS Com- petent, 26 III. From what Inteelocit- TORS Competent, . . 26 (a.) Ordinary Aetioiu, 26 {b.)Jury Cases, . . 28 (c.) Questions of Prac- tice, .... 30 (d.) Questions of Costs, 31 IV. Time for Appealing, . . 31 APPEAL. V. Procedure on Objec- tion to Compbtenct, p. 32 VI. Parties, 33 VII. Hearing, 34 VIII. Judgments and Remits, . 35 IX. Costs, 38 1. Of Appeal, ... 38 (a.) On Affirming, . 40 (6.) On Reversing, . 42 2. Costs out of Estate, . 42 3. Costs helow, ... 43 X. Enforcement op Costs, . 46 I. Appeal Cases. 1. It is the duty of counsel in England, on receiving from Scot- land appeal cases containing irrelevant matter, to redraw them. (Per Lord Loughhorough.) — Simet;. Viscount Arhuthnott, 3 P. 610 (1797). 2. In the case of appeals brought obviously for delay only, the House will proceed against the counsel signing them, in the same way as the Courts do against counsel giving countenance to frivolous or vexatious suits. — Gilchrist v. Macadam, 4 P. 26 (1798). 3. It is a breach of privilege to append the name of a counsel to an appeal case before he is retained or authorises the signature. (Per Lord Brougham) — It is contrary to professional propriety for one counsel to recommend another to be employed with him, or in a case in which he had been consulted. — Grahame v. Grahame, b W. ^ S. 759 (1831). 4. Observations by Lord Brougham on the duty incumbent on counsel of not signing am appeal case unless they consider it proper to be appealed, whether there was division in the Court or not. — Rintoul V. Boyter, . 184. See Adjudication, 1, 2 — Assignation, 2, 5 — Counsel, 1, 2 — Gua- BANTEE, 7 — Peescription, 18, 20 — Provision — Eeddction. BUEGAGE TENUEE. 1. Eemit to the whole Coxirt of Session to consider questions of title and fact as to the subjects of burgage symbols, thirlage, and burgh dues. — Mags, of Glasgow v. Dawsons, 2 W. & S. 230 (1826) ; 3 S. 136. 2. Lands withia burgh held by the corporation in burgage, may be granted by them to be held in burgage, and a tenendas " to be holden in free burgage for service of burgh used and wont," is sufficient to establish that such is the tenure, though the tenant is not expressly declared to hold of the Crown, and the title in some other respects is allowed to be made up in the manner appropriate to feu holdings. In Constitution and Rights^ BUKGH. 71 burgage tenure the town-clerk has the exclusive privilege of preparing sasiaes, and they must be recorded in the burgh register. — Dawson v. Mags, of Glasgow, 4 W. & S. 81 (1830) ; Aff. 6' S.'19. See Husband and Wife, 68. BUEGH. I. Constitution & Eights, . p. 71 1 III. Liability oi' Magis- II. Election of Magistrates, . 73 1 teates, p. 76 See also Coepoeation. I. Constitution and Eights. 1. Held that the magistrates of Edinburgh could not pass a by- law forbidding the sale of tallow except to the candlemakers of the town, and that the Acts 1424, c. 32, and 1540, c. 123, did not form an existing restraint against the vending of tallow for sale. — Corporation of Butchers v. Mags, of Edinburgh, Eobert. 124 (1715) ; Eev. 1715. 2. A charter to a superior erecting his lands and a town within them into a burgh of barony, iucorporates the burgesses and the several crafts as established by usage ; but it leaves the government thereof, and the levying of the customs granted in the charter, in the hands of the superior, and the burgesses cannot gain by immemorial usage a servitude of drying and bleaching clothes and skins on part of the superior's lands. — Duke of Eoxburghw. Jeffrey (Kelso), Cr. & St. 632 (1757) j Eev. M. 2340. 3. A burgh schoolmaster appointed by the magistrates and town- council may be removed by them on just and reasonable cause, and cruel punishments habitually inflicted on the pupils, and engaging in other avocations, form such cause. — Campbell v. Hastie, 2 P. 277 (1772) ; Rev. M! 13132. 4. Eemit to consider whether the Corporation of Edinburgh, which had right to tolls upon all cattle sold at a certain market, could, on the disuse of the market, impose tolls upon cattle sold privately and brought within the city. — FlesJiers v. Mags, of Edinburgh, 4 P. 375 (1802) ; Rem. M. Royal Burgh, Ap. No. 6. 5. The sons and sons-in-law of traders having right to be admitted at lower fees into trade incorporations, and members of trade incorpora- tions having right to be admitted at low fees into the guildry of mer- chants ; held that the sons and sons-in-law of traders have not right to claim entry at low fees into the guildry. — Trades of Perth v. Proudfoot, 4 P. 544 (1803) ; Aff. 6. Freemen or burgesses are only admissible by a majority of the 72 BUEGH. [Constitution and Rights. "whole town-coimcil present at a legal meeting. '■ — Martin v. Macnab (Queensfeny), 5 P. 125 (1806) ; AS. F. C. 26tli Deo. 1803. 7. Eemit as to the power under the charters or by usage of the Corporation "of Aberdeen, to impose upon rough fat sold privately the burgh duties on tallow sold in market, — StUl v. Mags, of Aberdeen, 5 P. 313(1810); Kern. 8. A mason, not being a freeman, might lawfully build a house on his own property within burgh. — Wrights of Portsburgh v. Lorimer, 6 P. 233 <1816) ; Aff. 9. It is not necessary that persons exercising trades ia the JSTew Town of Edinburgh should be burgesses. — Sprott v. Scott, 4 Dow, 290 (1816) ; Aff. F. C. 6th Dec. 1810. 10. The bailies of a burgh of barony may, by consuetude for 100 years, acquire jurisdiction over the inhabitants of a burgh of regality, locally included in the burgh of barony. — Dowie v. Douglas, 1 S. Ap. 125 (1822); Aff. P. C. 30th May 1817. 11. The Dean of Guild may, under the statute 57 Geo. III., c. 53, authorise proprietors of shops to bring forward the fronts of their houses to the pUlars of the piazzas before them, — Gordon v. Bogle, 1 S. Ap. 452, 4th June 1823 ; Eev. 12. A tax being imposed by charter on the sellers and all other im- porters of wine, and the statute 25 Geo. III. c. 28, having abolished the impost as regarded all private families, and granted in place thereof a tax on aU the inhabitants; held that vintners seUing wine were liable for the impost, whether it was imported by them or not, but that they were not liable for the statutory tax in addition — Budge v. Mags, of Edinburgh, 2 W. ^r S. 588 (1827); Aff. 4 S. 522. 13. The town-clerk of a burgh of barony, appointed by the superior of the burgh, is not by law the agent of the superior in preparing charters, and therefore, on an appointment of town-clerk with the fees and emolu- ments formerly enjoyed, a remit made to ascertain the prior particular ■usage. —Cunningham «. Veitoh, 3 W. & S. 491 (1829) ; Eem. 4 S. 579. 14. A town-clerk appointed for five years is entitled to a possessory judgment in an attempt to remove him after the five years, reserving to the magistrates to raise a declarator of their right to remove him. — Mags, of Annan v. Parish, 2 S. & M'L. 930 ; Aff. 14 S. 111. 15. Neither ratepayers nor individual commissioners of police, suing not as a minority, but as ratepayers, have any title to sue the Commissioners of Police in respect of alleged misappropriation of rates. — Emng (^ Morrison) v. Glasgow Police, Gomrs., M^L. ^ R. 847 and 868 (1839); Aff. 15 S. 1128. 16. The magistrates of a burgh, being justices, have jurisdiction imder the Small Debt Act, 6 Geo. IV. c. 48 ; but their clerk, not Mectio7i of Magistrates.'] BUEGH. 73 .being clerk of the peace, is not entitled to sign the summonses- and such defect of jurisdiction cannot he cured hy the party appearing and pleading. —Forrest v. Harvey, 4 S. BeU, 197 (1845) ; Aff. 4 D. 97. 17. The funds of the Corporation of Edinburgh held not liable for failure on the part of the magistrates duly to execute statutory powers committed to them for the collection of a tax for the support of the clergy. — Ministers of Edinburgh v. Lord Provost, 6 S. BeU, 509 (1849) ; Aff. 7 D. 663. 18. Opinion that a grant in a charter to a burgh of toUs or goods passing through it is bad. — Edinburgh and Glasgow My. Co. v. Mags, of Linlithgow, 1 J/'ft 1 (1851); Rem. 19. A water company having contracted to supply a certain daily quantity of " good and wholesome water" to a town, in respect of which the corporation renounced the right to supply water to public works or private houses ; held that the corporation was not prevented from allowing the streets to be broken up for the purpose of enabling miU-owners to lay pipes for bringing sear-water for the purposes to which it could be applied. — Shaws Water Co. v. Mags, of Greenock, 2 M'Q. 151 (1855) ; Aff. 20. A water company which supplies mills with power, held liable to be assessed on the sums received from the millers, although they were also assessed on the value of the mills. — Greenock Trs. v. Shaws Water Co., 4 M'Q. 593 (1864) ; Rev. 24: D. 1306. See Appeal, 19, 81 — Charity, 2 — College, 7— Damages, 4 — Pabish, 3, 4, 7, 19, 20— Poor-Eates, 2, 3, 4, 6— Property, 23, 24r— Public Works, 1 1— Servitude, 2, 6— Statute, 23, 26, 28— Way, 2. .... .'x IL Election of Magistrates. 21. An election of magistrates is not avoided by the apprehension of one and illegal seizure of another of the electors at the instance of the successful party (held proved by the Court of Session), where in any case the majority would have been on the same side. — Smollett v. Buntein, Cr. & St. 26 (1730) ; Eev. 22. The provisions in the Acts 1503, c. 80, 1535, c. 26, 1609, c. 8, requiring magistrates to be merchants residing, is in desuetude. — Smollett V. Buntein, 1 Cr. & St. 26 (1730) ; Eev. 23. A bond under penalty of 500 merks, and also " of being esteemed infamous and unfit for society," entered into by a majority of the electors of a burgh, binding themselves in the choice of magistrates "to give their votes plum to such persons as the major part of them shall think most worthy," is contra bonos nun-es, and invalidates the election. — Hoggan v. Wardlaw, Cr. Sf St. 148; 8 Br. P. C 281 (1735); lifet^. - 74 BURGH. [Mection of Magistrates. 24. In the election of a deacon of a trade, the old deacon who pre- sided had a casting as well as a deliberative vote. The prescription of the statute ran from the date of election of the magistrates. An act of council cannot disqualify a candidate. — Heriot v. Eay, Cr. & St. 171 (1735); Aff. 25. An election reduced on ground of want of notice of meeting and other irregularities. — Marquis of Lothian v. Haswell, Cr. & St. 207 (1738) ; Elchies v. Burgh, No. 9. 26. On a secession of part of the electors, who proceed to election, their proceedings held void, and the election by the remaining electors valid. — Ferguson v. Crie, Cr. & St. 312 (1741) ; Aff. ; Elchies «;. Burgh Eoyal, 16. 27. Burgesses, not beiag councillors, not entitled to reduce the election of magistrates and town-coimcil. The councillors of a burgh need not be resident, but the magistrates ought to be, and the town- clerk cannot hold office as magistrate. — Eobb v. Thomson, 3 P. 21 (1785); Aff.; Johnston v. Tenant, 3 P. 22 (1785); Aff. M. 1888; Munro v. Porbes, 3 P. 23 (1785) ; Eev. 28. An election by the council in room of a decesised member, held void for want of due notice of the meeting to elect. — Denny v. Marquis of Lorn, 3 P. 516 (1796) ; Aff. 29. Election reduced on account of not being by a legal meeting. — Masterton. «. Meiklejohn, 5 P. 298 (1820); Aff. M. Burgh Eoyal, App. 1, No. 17. 30. Election of councillors for Ufe confirmed in special circumstances. — Angus V. Montgomerie, 1 S. Ap. 13; 3 Bligh, 98 (1821); Aff. F. C. 18th Jan. 1817. 31. A party who has several times taken advantage of a charter establishing a new sett cannot afterwards reduce it. • — Mags, of Mon- trose V. MiU, 1 W. & S. 570 (1825) ; Eev. 2 S. 652. 32. Express written mandate is required to authorise a petition and complaint at the instance of an elector who has gone temporarily abroad, against an election of magistrates of a royal burgh ; and the want is not cured by the appearance of counsel, or homologation by the party on his return — Arbuckle v. Lanes, 2 "W. & S. 528 ; 1 BUgh, N. S. 631 (1827) ; Aff. 5 S. 505. 33. Eemit to inquire into the usage by which it was alleged the sett of the Eoyal Burgh of Kilrenny was altered. — Gardner v. Eeekie, 2 W. & S. 531 ; 1 Bligh K". S. 646, (1827) ; Eem. 4 S. 539. 34. A reduction of the election of magistrates under the Stat. 16 Geo. II. c. 11, must be brought within two months. Costs must be given to the unsuccessful party under the statute. — Tod v. Tod, 2 W. & S. 542 ; 1 BHgh K S. 637 (1827) ; AS. Liability of Magistrates.] BUKGH. 75 35. The sett of a burgh authorised the Council, in the case of election of an unqualified Dean of Guild, to elect another ; held that they could not declare the unsuccessful candidate elected. By statute appeals against an election were to be brought within two months ; held that the time in this case ran not from the original election, but from the time when it was irregularly completed by the declaration of the Council, that being the election complained of — Mags, of Dundee v. Lindsay, 5 W. ^ S. 152 (1831) ; Aff. 8 S. 688. 36. The list of electors of the town council being directed to be made up from the roll of Parliamentary electors on the 16th Septem- ber, an elector placed upon it is entitled to vote during the ensuing year, although in the mean time he has been expunged from the Hst of Parliamentary voters by decision of the Eegistration Appeal Court. Observed, that whether the validity of a burgh election can be tried or not by suspension, the Court ought not to interfere by interdict before it takes place. — Monteifh v. 31' Gavin, 3 & ^ M'L 290 ; 5 CI. 4- Fin. 4:59 (1838) ; ^/. 16 S. 122. 37. Suspension and interdict, not combined with declarator, is not a competent process for bringing before the Court a disputed question respecting the election of a Provost. — Hemming v. Dunlop, M'L. & E. 547 ; 7 CI. & Fin. 43 (1839) ; Eev. 16 S. 254. See Member of Paeliament, 1. III. Liability of Magistrates. 38. Magistrates of a burgh held liable conjunctly and severally for damage done by a riot in respect of non-performance of their duty to en- deavour to suppress the riot. — Weir v. Naismith, 6 P. 678 (1 743) ; Mev. 39. The magistrates of a- burgh are liable for the debt if they fail to incarcerate the prisoner on his delivery to them by the messenger-at- arms, although he is only kept for ten hours in a room adjoining the court-house, and does not escape, if he is, in point of fact, not under restraint. Their full liability continues, although the debtor sues out a cessio, to which the creditor consents on part payment of the debt. — Mags, of Annan v. Shortreid, 3 P. 230 (1791) ; Aff. M. 11760. 40. The magistrates are liable for the escape of a debtor, though the prison was in good condition and the escape was effected by means of powerful tools. — Mags, of Kirkcudbright y. Affleck, 5 P. 254 (1809) ; Aff 41. The magistrates having liberated a debtor in bad health on caution that he would reside in a fixed house within burgh, are not liable for the debt on the ground of the non-observance of the condi- tions, the creditor being aware of the non-observance. — Ritchie v. Mags, of Canongate, 5 Botv 87 (1817) ; Aff. F. C. 25 January 1814. 7C CAUTIONEE. [Character. CAUTIONER I. Character and Obliga- tions, .... p. 76 II. For JuDicxiL Officer, . 77 III. Discharge, ... p. 78 IV. Prescription, .... 80 I. Chabactek and Obligations. 1. A bond with a cautioner being granted, and afterwards a bond of corroboration of tbe former with another cautioner, the last-mentioned cautioner, on being compelled to pay, is entitled to relief from the first cautioner to the extent of one-half only. — Murray v. Butler, Bobert. 465 (1724) ; Aff. ; M. 14651. 2. A creditor claiming on the funds of his debtor is not bound to assign to postponed creditors a security which he holds from a cautioner. — Bank of England v. Pulteney, 3 P. 92 (1787) ; Aff. 3. A personal bond being granted by three parties conjunctly and severally, but bonds of reKef being given by the principal debtor to the other two, and the principal being unable to pay, and one of the cautioners paying the whole ; held that he is thereon entitled to rank on the estate of the other cautioner not for the whole, to the effect of getting payment of the half, but only for the half, " each of them being indebted as principal for one moiety, and as surety for the other moiety." — Keith v. Forbes, 3 P. 350 (1794) ; Alt. Maxwell v. Herm, M. 2136. 4. A bond being granted by one as principal, and another as " surety and principal payee," the latter is not entitled to benefit of discussion. — Earl of Traquair v. Burrows, 6 P. 99 (1815); Aff. 5. The trustee on the sequestrated estate of the principal debtor in a bond held, in special circumstances, not entitled to an assignation of a security over the cautioner's estate, although the principal and cautioner were partners- — Henderson t. Glynn, 6 P. 207 (1815) ; Alt. 6. Cautioners in a limited sum for a bank agent, who becomes in- debted in a larger amount to the bank and fails, are not entitled to have the dividends on his estate imputed in reduction pro rata of their liability, nor to an assignation to the bond, so as to draw dividends thereon. — Balfour v. Borthwick, 1 S. Ap. 131 (1822); Aff. F. C. 29th Jan. 1819. 7. Money being advanced on the joint security of two persons, both are liable as principals, although it was to pay off another debt in which one was only cautioner. Although giving time to a principal will release a surety, yet giving time to one of two joint debtors will not release the other. —5o5inso» v. Edgars, 2 W. ^ S. 106 (1826) ; Aff. 3 S. 513. 8. A cautioner for several original cautioners is entitled to relief in For Judicial Officer.] CAUTIONER. 77 full from each of the original cautioners, unless it clearly appears from the evidence that the intention was that the title to relief should he effectual only as regards part of the amount against each of the original cautioners. — IngUs v. Walker, 4 W. & S. 40 (1830) ; Aff. 5 S. 726.; 9. A cash credit being granted hy a hank to a party, for which he and two others became hound, the other two are merely cautioners, though not expressly named as such. — Mackenzie v. Macartney, 5 W. & S. 504 (1831) ; Eev. 8 S. 862. : 10. A husband bound himself by antenuptial contract to iuvest a sum for himself and his wife in conjunct fee aad Hfe-rent only, and to the children in fee, and that on the demand of four persons named, and one of the trustees of the contract, who was not one of these four, bound himself, iu case of the husband's faiUng to implement the ob- ligation, to make it good ; held that the husband was bound to make the investment, although not specially called upon ; that his represen- tatives were liable after his death ; that the cautioner was entitled to the benefit of discussion ; and that the burden of proving the insolvency of the principal before he was sued lay on the parties suing him. Bin passed on caution to try these questions. — Wishart v. Wishart, 2 S. & M'L. 564 (1837) ; Eev. 13 S. 769. 11. A surety for a commission-agent is not liable for the transactions prior to the date of the bond of caution, it speaking of goods " to be shipped," and containing no clause clearly extending the Kability to prior transactions. — Kapier v. Bruce, 1 S. ; Bell 78 ; 8 CI. and Fin. 470 (1842) J Aff. 2 D. 556 See Appeal, 79 — Cbown, 6 — Debt, 6 — Executoe, 3 — Guarantee, 7 — MiNOE, 15. II. For Judicial Officer. 12. A remit to consider whether cautioners for the receiver-general of land-tax are bound for intromission with funds of the Court of Session^laced under his control by a subsequent statute. — Sari of Galloway v. Comrs. of Treasury, 4 P. 165 (1800) ; Rev. M. Juris- diction, Ap. M. 7. 13. Cautioners for curator ionis are liable for sums misapplied by the curator, though coming into his hands in consequence of extra- ordinary acts of management expressly authorised by the Court. — Eaton V. Murdoch, 3 W. & S. 246 (1828) ; Aff. 4 S. 688. 14. Question, Whether the cautioner for a fector appointed by tutors can be ordered to reKeve the cautioner for the tutors without an ex- press action of relief, but merely in actions not conjoined, at the in- stance of the pupil against each cautioner? — Scot v. Stewart, 7 W. & S. 211 (1834) ; 10 S. 392. 78 CAUTIONEK. [Discharge. 15. A bond of caution that a factor should do exact diligence in performing his duty, biuds the cautioner to see that the factor accounts for intromissions, and pay all sums coming into his hand to the proper parties. —Bremner v. Kerr, 2 S. & M'L. 895 (1837) ; Afif. 14 S. 180. 16. The cautioner for a messenger is liable in damages to the party injured by any oppressive and illegal acts committed by the messenger in execution of a warrant. — Grant v. Forbes, 6 P. 731 (1759); Aff. M. 2081. 17. It is no defence to a messenger, or his cautioner, in an action for failiire to execute dihgence, that the grounds of debt on which it pro- ceeded were vitiated and invalid. — Wilson v. Maclennan, 4 W. & S. 398 (1830) ; Eev. 7 S. 401. 18. A cautioner for a sheriff's-of&cer is liable for the expenses of an action against the oflGicer for misperformanoe of duty, although the officer died before trial, and his representatives refused to appear. — Dykes v. Struthers, 7 S. Bell, 390 (1850) ; Aff. 9 D. 1437. See Bankhuptct, 10. III. Discharge. 19. Four parties having granted separate bills in security of a debt, each bill being for one fourth part of the amount, the creditor on re- lieving one of the principal debtors from liability by acceptance of a substituted debtor, and obtaining part payment, is not entitled to sue the sureties, who had not expressly assented to the arrangement, for more than their pro rata share of the balance remaining due from the other principal debtors. — Stirling v, Forrester, 1 S. Ap. 37 ; 6 P. 480 ; 3 Bligli 575 (1821) ; Rev. 20. Cautioners for a bank agent are liberated if the bank permits the agent to persist in an improper course of business without notice to the cautioners, or if it accepts farther security from the agent on condition of giving him time. — Thomson v. Bank of Scotland, 2 S. Ap. 316 (1824) ; Rev. 1 S. 275. 21. A cautioner is not discharged by discharge of a principal on part pajonent, under express reservation of recourse against the cautioner, which was known to the cautioner. — Smyth v. Ogilvies, 1 W. ^ S. 315 (1825) ; Aff. 1 S. 159. 22. An heritable security for a debt being granted by an absolute disposition with back bond, to be held a me only, and sureties being bound for the same debt, in addition to the heritable security, without prejudice to the one or the other, but with the stipulation that, if called upon to pay, they should be entitled to a conveyance of the heritable security; and the debtor having taken infeftment, but neglected to get a charter of confirmation, so that he was eyicted by the trustee Discharge.] CAUTIONEE. 79 on the debtor's baiikrupt estate, the cautioners are discharged by this neglect. —Fleming v. Thomson, 2 W. & S. 277 (1826) ; Eev. 4 S. 221. 23. Cautioners for a cash credit are discharged by the firm which grants it directing, without notice to the cautioners, the credit to be granted by drawing, on their account, on a bank with which they are connected ; and subsequent remittances, by the principal debtor, to the bank are to be imputed to the extinction of any balance for which the cautioners were liable at the date of the credit being transferred. — Speirs v. Houston's Exrs., ^ W. ^ S. 392 ; 4 Bligh, N.S. 515 (1829) ; Rev. 4 /^. 566. 24. A cautioner for a tenant having stipulated that the landlord " should be bound to exercise his right of hypothec before calling on" the cautioner, is not liable if the right of hypothec is not exercised with due diligence, or if the tenant is removed without concurrence of the cautioner.— if' ra?;M7i v. Scott, i W. ^ 8. 410 (1830) ; Rev. 5 S. 597. 25. Cautioners for a bank agent liberated by the bank intrusting him with unreasonably large sums without notice to the cautioners, and permitting a course of action at variance with the contract of agency, and taking a further bond of caution containing a proviso that the first cautioners should be discussed before it was sued on. ■ — Leith Bank V. Bell, h W. Sf S. 703 (1831) ; Aff. 8 8. 721. 26. Cautioners for a cash credit under an agreement stating that the sum due shall be ascertained by an account certified by the bank account, are not liable for such part of a sum so stated as is made up of payments of drafts void under the stamp acts, as being post-dated or drawn beyond seven miles from the bank, and known by the bank agent, when paid, to be so dated or drawn. — 8wan v. Bank of Scotland, 2 8. ^ M'L. 67 ; 10 Bligli, N.S. 627 ; Z CI. ^ Fin. 610 (1835) ; Rev. US. 403. 27. If a creditor, without consent of the cautioner, give time to the principal debtor, the cautioner is discharged, provided the time is given by contract between the creditor and debtor ; but if the creditor merely delays or neglects to enforce his right, the cautioner is not discharged. — CreigJiton v. Rankin, 1 RoMn. 99 ; 7 Gl. 4r Fin. 325 (1840) ; Aff. l& S. 447. 28. A cautioner is discharged from liability by non-communication to him. of facts affecting the credit of the party for whom he becomes bound within the knowledge of the party taking the bond, whatever the motive for such non-communication may have been. — Railton v. Matthews, 3 S. Bell, 56 (1844) ; Rev. 6 D. 536. 29. If a party, having reason to doubt the proceedings of his agent, requires from him further security, without communicating his doubts to the cautioners, the bond will be void, and evidence of such doubts 80 CAUTIONER. [Prescription. and concealment is admissiHe ; but it is not necessary to prove that the concealment was wilfal, or for the advantage of the principal. — Srnith v. Bank of Scotland, 1 Dow, 272 (1813), Eev.; Railton v. Matthews, 3 S. Bell; 56 (1844); Eev. ' 30. It is not iacumhent on a bank, in accepting cautioners for a cash credit, to disclose to them that the new credit was intended for the purpose of payiag off an existing credit, unless the cautioners make the specific inquiry, in which case it must be averred, as forming part of the contract. (Per Lord Campbell) — ^A disclosure need not be made volun- tarily of any relation between the debtor and the bank, unless it be of such a nature as the cautioner could not naturally expect — Hamilton V. Watson, 4 S. Bell, 67; 12 CI. ^ Fin. 109 (1845); Aff. 5 D. 280. ■ 31. A cautioner for a bank agent (who binds himself to undertake no suretyship for another person) is discharged of liability, in all re- spects, by the bank imposing, without notice to the cautioner, a liability on the agent for one-fourth of the losses, although the loss sued for does not arise from such new liability. — Bonar v. M' Donald, 7 S. ■Bell, 379 ■,ZH.L. Ca. 226 (1850) ; Aff. 9 D. 1537. i- See Bankeuptct, 65. rv. Prescription. 32. Although the payment of the money for which the cautionary obKgation is given is not to take place for six years, the obligation pre- scribes in seven years from its date. It also prescribes, though there is no clause of, or separate bond of relief, if it appears on the face of the bond, that the cautioner has that character. But the plea of pre- scription may be elided by a promise to pay, or by a request for time, made by the cautioner, or by the tutor for his son, after the lapse of the seven years. — Eiddick v. Douglas, 4 P. 133 (1800); Alt. M. 11032 and 11045. 33. When a cautioner is bound as co-obligant, without any clause of relief, the septennial prescription does not apply. — Smyth v. OgHvie, 1 W. & S. 315 (1825); Aff. 1 S. 159. , 34. A bond biadirig '' A. as principal, and with and* for him C. and D. as cautioners, sureties, and full debtors, joiatly and severally," though without clause of relief or separate bond of relief, does not bind C. and D. after seven years, even though they may have paid interest after that time, the act not establishing a mere prescription but extinguishing the debt. — Scott V. YuiHe, 5 W: & S. 436 (1831) ; Aff. 8 S. 485. 35. A bond of caution for', intromissions in an office does not pre- scribe from seven years after its date, but from seven years after the party ceasing to hold the office ;' and it does not expire by the death of the cautioner (when it binds the 'cautioner, his heirs and executors), Bequests to^ CHARITY. 81 but continues to bind the heirs, even when minors, for intromissions subsequent to the cautioner's death. — Bremner v. Campbell, 2 S. & M'L. 895 (1837) ; 1 S. Bell, 280 (1842) ; Aff. 1 D. 618. See Debt, 3 — ^Erroe of Law, 2 — Pebsoeiption. CHAEITY. I. Peopertt of, ... p. 81 I II. Bequests to p. 81 I. Property op. 1. Damages cannot be sued for from trustees of a charity in respect of an alleged breach of duty of the trustees in the execution of the trust, where if recovered they cotdd only be paid out of the trust funds. — Heriot's Hospital v. Boss, 5 S. Bell, 37; 12 CI. & Fin. 507 (1846); Eev. 5 D. 589. 2. Queen Mary having by charter, reciting that it was her duty to provide for the ministers of the Word, and to keep up hospitals for the poor, granted to a burgh certain property, and other property formerly vested in the burgh for charitable purposes having subsequently been used with it for providing stipends for the ministers ; held that the burgh is bound to apply the income of the joint property for that pur- pose, including the income from any purchases made out of accumula- tions, but is to apply funds left specifically for other purposes to such other purposes. — Mags. v. Presbytery of Dundee, 4 M'Q. 228 (1861) ; Aff. 20 D. 840. See Parish, Stipend. , 3. The site of the church of Trinity College and Almshouse in Edin- burgh hawing been taken by a railway, under condition inserted in their act that they should either rebuild it in the same style and model, or pay to the town-council a sum of money " as compensation for the said church, and in lieu of the foregoing obligation," and the company having availed itself of this alternative ; held that the town-council are not bound to spend the whole simi in rebuilding the church, or to rebuild it in the same style and model, but are bound to spend only a sufficient sum for that purpose, and in giving to the pubHc the same use of the church as they before enjoyed, and to invest the balance for the advantage of the college. — Clephane v. Mags, of Edinburgh, 4 M'Q. 603 (1864) ; Eev. 22 D. 1222. II. Bequests to. 4. A legacy to trustees, to be applied in aid of the iastitutions for charitable purposes, established or to be established ia Glasgow or the neighbourhood thereof, at the discretion of the trustees, is not void for uncertainty, but observed that it should be applied to iastitutions 82 CHARITY. [Bequests to, actually existing at the date when applicable. The next of Idn may properly bring an action to compel the trustees to perform their duties properly. Costs allowed out of the estate where the next of kin dis- puted the validity of the above bequest. — Hill v. Bums, 2 IF. ^ & 80 (1826) ; Aff. 3 S. 389. 5. A bequest " to such charitable purposes and to such of my friends and relations as may be pointed out by my wife, with the approbation of the majority of my trustees," is effectual. — GricMon v. Grierson, iW.^S. 329; 3 Bligli, N.S. i2i (1828); Aff. 4 S. 552. 6. A wUl having given a sum of L.6000, together with the residue of the testator's estate, to a corporation to found an hospital similar to an existing named hospital, but declared that the sum should be in^ vested and allowed to accumulate till it amounted to the sum of L. sterling, and then should be employed for erecting and maintaining the hospital and educating boys, — ^the blanks in the sum and number make the whole gift void. {N.B. — ^This case declared by Lord Lyndhurstto be followed only where the circumstances are identical. — Mags, of Dundee v. Morris, 3 M'Q. 155.) Ewen v. Mags, of Montrose, i W. 4- S. 346 ; 2 Dow ^ Clark, 74 (1830) ; Eev. 6 S. 479, 7. A testator gave his property to trustees to be applied to such benevolent and charitable purposes as they think proper, and if amounting to L.600 or upwards, recommending to them to apply the income to payments to domestic servants, settled in Glasgow or the neighbourhood, producing testimonials of character after ten years' service. Held that neither the first nor second purposes were void for uncertainty ; that the second was to take effect as to the whole sum, though it greatly exceeded L.600 ; that the recommendation was im- perative, and that the next of kin might apply to the Court to com- pel the due application. Costs out of the estate. — Millers. Black's Trustees, 2 S. 4^ M'L. 866 (1837) ; Aff. 14 8. 555. 8. A gift of land to a college for the support of bursars, the college undertaking to support them equally with its other bursars, subject to a proviso for re-entry in case of failure, vests in the college for its own use any surplus of rents which may subsequently accrue. — Jack v. Burnett, 5 S. Bell, 409 ; 12 CI. ^ Fin. 812 (1846) ; Bev. 6 D. 731. 9. A bequest to found an hospital for education of 100 boys of a certain town is not void for uncertainty, because of not specifying the sum to be applied, or the station in. life of the boys, or whether they were to be clothed or fed. — Mags, of Dundee v. Morris, 3 M'Q. 134 (1858); ^e«. 19 £>. 918. ^/ See Action, 2 — ^Appeal, 132 — 'Hx.mg-ImjBit^, 12. Church. See Dissentees — Parish — Presbytery. Leases and Contracts.] coal. 83 COAL. I. Reserved Right, , . p. 83 | II. Leases and Conteacts, p. 83 I. Ebserved Eight. L The superior of lands who had reserved the coal therein, having heen attainted, the reserved right passes with the superiority to the Crown, and the vassal, thought hereafter holding, under 1 Geo. I., of the Crown, does not acquire right to the coal. — Mitchell v. York Bmldings Co., 6 P. 795 (1777) ; Aff. 3. A proprietor having sold the dominium utile to A., reserving the coal, and blading himself, his heirs, and assignees, to pay any damage caused by workiug it, and having afterwards disponed the coal to B., taking him hound to pay damages in working, A. is bound to proceed for damages caused by the working against B. only, and cannot retain the feu-duties due to the proprietor of the superiority. — Simson v. Ker, 3 F. 238 (1792) ; Aff. M. 2692. 3. The superior of lands feued in runrig, having in his charter express right to the coal, fortified by proof of possession and working, while in the rimrig feus there is no mention of coal in the dispositive clause, but only in the tenandas, he has right to work the coal under the feus. — Anstruther v. Anstruther, 3 P. 483 (1796) ; Aff. See Property, 14. 4. A feu having been granted reserving the coal, and the superiority by attainder having become vested in the Crown, which in a charter of novodamus (but not iu the signature and warrant on which it pro- ceeded) included the coal in the description of the lands, ' but sub- sequently sold the superiority, with' the reserved right of coal, on which possession of the coal followed ; held that the purchaser of the superiority had right to the coal. — Anderson v, CadeU, 4 P. 532 (1803) ; Aff. 5. Remit to consider how far acts of working coal at considerable intervals were sufficient to support prescription, on a charter under the Clan Act, against the purchaser of the superiority, to which a reserva- tion of the coal had been attached. See 6 S. 167, for result of remit. — Forbes v. Livingstone, 1 "W. & S. 657 (1825) ; Rem. 1 S. 282. 6. A party having a reserved right of coal in the lands of A. which he works, is not entitled to pump the water from the coal of the ad- jacent lands of B., leased by him, into the levels of A., from which it flows to the surface of the lands of A. — Turner v. Ballendene, 7 W. # S. 163 (1834) ; Aff. 10 S 415. n. Leases and Conteacts. 7. A coal lease being granted with privilege of communicating the f2 84 eOAL. [Leas^ and Contracts. level to other neighbouring collieries, held that the privilege was available to neighbouring though not adjacent collieries, and was not put a stop to, as regards other collieries worked by the lessee, by the expiry of the lease in which it was contaiued. — Earl of Aberoom v. Wallace, 6 P. 757 (1764) ; Aff. 8. A coal lease havLag stipulated that the level of the coal should not be communicated to the coal of any neighbouring proprietor, except with consent of both lessor and lessee, the landlord is entitled to inter- dict against the tenant communicating it, except on such terms of payment to him by the neighbouring proprietor as he shall thiak fit ; and if the communication is opened without his consent, he may com- pel the neighbouriag proprietor to shut it up, and pay a fair compen- sation for the benefit derived from it while open, — Wauehope v. Hope, 2 P. 286, 338, andhVi (1773, 1774, and 1780); Bev. 9. An exception iu a lease of coal of all the coal within the parks, gardens, and enclosures of the mansion-house, unless the consent of the lessor was obtained to its being wrought, does not authorise the lessor to Work it himself. — Earl of Wemyss v. Hope, 3 P. 487 (1796) ; Aff. 10. Under a contract by lessees of a Ume-kiln to take a certain quan- tity of " great chows and panwood" from the lessor's collieries, held competent to insert the word " coal" after " great," as it was evidently required by the context, and that the lessees, on a deficiency of the supply of coal, were still bound to take as much as could be furnished before resorting to other coUieries. — Wight v. Dickson, 1 Dow, 141 (1813) ; Alt. 11. A condition in a lease of coal that it should come to an end, if, by unforeseen occurrences in the workings, the coal should become in- capable of being wrought to advantage, does not avoid the lease on the coal becoming incapable of being wrought to advantage through a tem- porary fall in the market. — Dixon v. Campbell, 2 8. Ap. 175 (1824) ; Aff. 12. Interpretation of special stipulations in a contract for working coaL — Cunningham v. Warner, 2 S. Ap. 225 (1824) ; Eev. 13. When a lease of coal contains no provision respecting leaving a barrier of coal at the march, but contains a power to make communica- tions into adjacent mines, and an authority to the lessor to inspect at any time, the lessee is not bound, by the general stipulation that he shall work the coal in a proper manner, to leave a barrier to prevent the influx of water from neighbouring mines. — Craufurd v. Dixon, 2 W. ^ S. 354 (1826) J Aff. 2 S. 667. 14. A right to carry a level from a lower coal-field being granted to the proprietor of an upper coalfield — Question, How far, under the agreement, he was entitled to benefit by it in regard to the drainage of COLLEGE. 85 a field belonging to tlie grantee, lying between the two to whicli the agreement referred ? Interest given from the date of summons. — Earl of Elgin Y.Hallcett, 1 S. ^ M'L. 629 (1835); Alt. 11 S. 513. 15. Under a lease of a stratum of alum lying on the top of coal which had already been wrought out, leaving pillars, held that the landlord was not entitled to insist on the alum lessees consenting to the removal of the pillars, and the consequent working of the alum on the top of them, before they found such working profitable. — Earl of Glasgow v. Hurlet Alum Co., 7 & Bell, 100 / 3 H. L. Ca. 25 (1850) ; Aff. 12 D. 704. See Bankruptcy, 39, 59 — Master and Servant, 7, 8, 9, 10 — Mines and Minerals— Paetnbhship, 8. COLLEGE. 1. An election to a professorship not being within the period fixed by the founder's deed, is void, and the right to elect devolves on those next named in the deed. — Brown v. Chalmers, 6 P. 663 (1734) ; Aff. 2. Special question as to the power of Marischal CoUege, Aberdeen, to confer degree of doctor of law. — Catanach v. Gordon, Cr. & St. 401 (1745); Eev. M. 12253. 3. Practice of the University of Aberdeen in. regard to the election of officers. Held that the priacipal has not a double vote. — Thom v. Dalrymple, 6 P. 737 (1763) ; Afif. See Patronage, 8. 4. An election of two persons as joint-professors, the foundation only speaking of the election of one, is void. Question as to the notice necessary to be given of a contemplated election. — Arnot v. Hill, 5 P. 256 (1809) ; Rev. M. College, Ap. No. 3. 5. A statute having declared that elections should for the future be as heretofore usual, and it appearing that the principal had formerly voted, he is entitled both to an original and a casting vote, although subsequently to the statute a principal had renounced the privilege. — Playfair v. Macdonald, 5 P. 266 (1809) ; Rev. 6. The University of Glasgow is a corporation, and may grant degrees in surgery but not in medicine. — University v. Faculty of Physicians of Glasgow, 2 S. & M'L. 275 ; 1 Eobin. 397 ; 7 01. & Fin. .958(1840); Aflf. 15 S. 736. 7. The University of Edinburgh was the college of the town, and therefore the town-council had exclusive right to give directions respecting the granting of degrees and the government of the college, and course of study. — University v. Mags, of Edinburgh, 1 M'Q. 485 (1854) ; Aff. 14 D. 74. See Charity, 8. 86 CONTRACT. [Gm&ral Rules. CONQUEST. 1. Conquest in a question of succession includes lands, adjudications, and heritable bonds acquired by the deceased, whether infeftment had passed on them or not, and whether in his own name, or in that of trustees for bim ; and it also includes bonds of corroboration, secluding executors, of heritable bonds as regards the capital sums. But move- able bonds secluding executors, bonds of corroboration of them, and bonds accumulating the arrears of heritable bonds into capital, do not fall under conquest. Teinds purchased by the deceased of lands which had descended to him, and the dominium utile also purchased by him (taking the conveyance with procuratory of resignation ad reman. whether executed or not), the superiority having descended to him, do not fall under conquest. — Earl of Selkirk v. Duke of Hamilton, Cr. & St. 271 (1740) ; AS. ; Elchies v. Heritage & Conquest, No. 3. 2. Conquest under a marriage contract does not include heritage pur- chased during the marriage with funds belonging to the husband before the mairiage. — Fairie v. Watson, 2 P. 213 (1770) ; AS. 3. Property being conveyed to trustees, with direction to pay the rents to A. during his life, and if he married and had children, to con- vey the fee to him, and if not, then to B. and his heirs and assigns ; and B. having predeceased, and A. died unmarried, the heir of line, and not of conquest, of B. is entitled to the fee, it never having vested in B himself — Miller v. MUler, 7 "W. & S. 1 (1833) ; Aff. 9 S. 295. See Provision to Children, 2, 8. CONTEACT. I. General Rules, , . p. 86^ I III. Salary and Services, p. 88 II. Building and Work, . 87* | IV. Illegal, 88 See also Bond — Landlord and Tenant, 9. I. General Eulbs. 1. Where registration is essential to a contract, and two deeds are executed, one of which is registered, but the other, modifying it, is un- registered, the registered deed is alone regarded (Compromised). — Cum- ing y. Ferguson, Eohert. 577 (1726); Afi. 2. Question, whether a letter by a creditor to a debtor was a contract to concur in personal protection to him on certain terms, and whether the terms were observed, and whether the debtor was entitled to suspend a charge without finding caution judicio sisti. ■ — Allan v. De Voz, 5 P. 110 (1806); Aff. 3. A widow having bound herself to pay her husband's debts out of Building and Work.} CONTRACT. 87 her separate estate, she is not entitled to be set free from it on her estate proviag so deficient in value that the dehts could not be paid off ■withitt the time originally contemplated. — Rundell v. Liady Mont- gomerie, I W. ^ 8. 112 (1825) ; Rev. 2 S. 207. 4. An agreement by a canal company before its formation, that on a quarry being wrought up to it, they should pay the value of the rock below the canal, is not a sale of the rock to them, and therefore interest is not due on the value from the date of agreement, but only from the date at which, after the quarry was wrought fully up, a demand was made on the company for consignation of the value. — Union Canal Co. V. Carmichael, 1 S. Bell, 316 (1842); Reu. 2 D. 23. 5. A conveyance of land with liberty to take water from a stream by a pipe not exceeding twelve inches diameter, does not imply a right to dam the stream so as to keep the pipe always full. — Wallcer v. Stewart, 2 M'Q. 424 (1855) ; Rev. 6. A right may be acquired under a contract by one who is not named in it, but it can only be acquired if the parties contracting in- tended that their contract should be for the benefit of the third party individually, and not merely as one of the public. — Peddie v. Brown, 3 M'a 65 / Aff. ; Winnie v. Glasgow ^ S. W. By. Co., 3 Jf'O. 75 (1857) ; Aff. See Law-Agent, 20, 22. See Inteeest, 10 — Principal and Agent — ^Public Works, 18, 20, 21, 22, 25. II. Building and Work. 7. A contract for building a bridge having referred to a plan signed by the parties which showed no foundations, and stated nothing about the foundation, the builder is not bound to excavate or drive piles so as to make a secure foundation ; and if that course appears necessary after examination of the bed of the river, both parties will be freed from the contract, and the contractor may sell off the materials used or prepared, on refunding any sum abeady paid him. — Mags, of Ruther- glen v. Cullen, 2 P. 305 (1773) ; Aff. 8. In a building contract, containing a penalty in the event of non- completion by a certain date, the penalty cannot be enforced unless it is proved that the delay was through the fault of the builder. — Jones v. Lindsay, 3 P. 563 (1797) ; Aff. 9. Question with reference to the conformity of houses buQt on a feuing plan with the articles of sale. — Jamesons. Russell, 6 P. 29 (1814); Aff. 10. Extra charges by a builder allowed. — Hay v. Scott, 6 P. 146 (1816); Aff. 11. A shipbuilder desired to state, and stating, the rate of wages with reference to intended work, ig not entitled to charge a higher rate on the 88 CONTKACT. [Illegal. ■wages being raised by authority of justices of the peace during the work. — StraehanY.Paton,3 W. ^ S. 19 ; 3 Bligh, N. S. 359 (1828);^/3;S. 529. 12. Failure to use the precise materials stipulated is a ground for damages, though the substitute materials were iond fide supposed to be as good, but were not really so. — Straohan v. Paton, 3 W. ^ & 19 ; 3 BUgh, N. S. 359 (1828) ; Aff. 3 S. 259. See Appeal, 131. See Arbitration, 1 — Shipping.— ' ' III. Salaby and Services. 13. Correspondence on which it was held that a factor's salary was to be fixed at L.450 instead of L.550, as the Court of Session had fixed it. —Duke of Queensberry y. M'Murdo, 4 P. 565 (1804) ; Alt. 14. A contract being entered into by a company with its manager, who undertook; for the salary stated, to devote his whole time to its afiaiis, and do, in addition to the duties specified, whatever else might be required of him for the interest and advantage of the company ; held that it did not exclude a claim for further salary, in respect of the performance of special work, and of the superintendence of work which, at the time of the contract, formed a separate branch of the establish- ment. — Hamilton v. Qeddes, 4 P. 657 (1805) ; Aff. See Interest, 3 — Paiinership, 13. 15. A factor having annually settled accounts on the footing of his salary being L.100 a year, he is not entitled to claim further allow- ances, or legacies bequeathed him, but revoked. - — Rose v. Earl of Fife, 5 P. 115 (1806) ; Aff. See Acquiescence, 6— Bank, 4. 1 6. An oificer having undertaken to prociu?e a commission for another, and for that purpose lodged the price with agents, who failed, he is liable for the price, and also for the pay which would have been due had it been received, up to the date at which a commission was obtained from another quarter. — Maedmmld v. Elder, 5 P. 542 (1811) ; Aff. IV. Illegal. 17. A contract to grant a policy of insurance, which policy would be illegal, but of the illegality of which no notice was given to the in- surers, nor the policy ever deKvered, founds an action of damages, in which the loss intended to be covered by the policy forms the measure of damages. — Albion Ins. Go. v. Mills, 3 W.\ S. 218 ; 2 BUgh, N. S. 519 ; 1 Dow ^ CI. 342 (1828) ; Aff. 18. Action cannot be maiatained in respect of a contract which, though ex facie legal, is shown by subsequent circumstances to have been intended to be carried out UlegaUy. A ship despatched to a foreign port, and having there transhipped into her goods which could not have been legally exported in her, but which were despatched a CONVEYANCE. 89 few days after her on purpose to be so transhipped, is liable to oondem nation as fully as if she had had the goods on board when she sailed, and the whole transaction of her despatch is illegal. — Stewart v. Gibson, 1 RoUn. 260; 7 Gl. Sf Fin. 706 (1840) ; Aff. 12 S. 683. See Bill, 1 — Law Agent, 8 — Pawnbeokee. CONVEYANCING. I. TrcLE AND Conveyance, . p. 89 II. Payment of Price, ... 90 III. Eerors and Latent Incum- brances, p. 90 See also Heir — ^Entail— Property — Provision to Children — Sale. I. Title and Conveyance. 1. An absolute conveyance of lands not followed for many years by possession, which it was admitted by the grantee was to aUow of the lands being redeemed, is not reducible after the grantee has at last been for many years in actual possession. — Douglas v. Wilson, 5 P. 303 (1810) ; Aff. 2. On a sale of lands, with transfer of possession and part payment, but without delivery of the disposition, adjudication for a debt of the vendor subsequent to the minute of sale does not exclude the purchaser. Haldane V. Anstruther, Eobert. 601 (1727); Aif. M. 14174. 3. An absolute disposition being granted for a faU. price, with back- bond of redemption within five years, on the expiry of that time the disposition becomes irredeemable without declarator. — Boyd v. Steel, 2 P. 368 (1775); Aff. M. 7221. 4. The proprietor of a house having by letter accepted an offer to purchase it, and " obHged himself, his heirs and executors, to give up to the purchaser all his rights and titles with full warrandice clear at the term of Martinmas next," he is bound to implement the sale and make a good title, free from incumbrances, and is not entitled to refuse and offer to renounce the sale. — B7-uce v. Gleglwms, 3 P. 5 (1 785) ; Aff. 5. A purchaser of lands being sued by the heir of the seller's ancestor, on the ground that the seller had no power to sell, cannot defend himself by impeaching the title of the seller's ancestor, from whom the title of both parties is deduced. — Livingston v. Warrack, 6 P. 790 (1773) ; Aff. M. 7847. 6. Adjudication in implement cannot proceed on a disposition ex facie absolute, qualified by a back-bond in trust, there being another party in actual possession, though uninfeft. ■ — Dunlop v. Cochrane, 2 S. Ap. 115 (1824); Aff. F. C, 4th July 1820. 7. Although the rale in Scotland (differing from that in England) is, that on a sale the vendor shaU both prepare and pay the cost of the 90 CONVEYANCING. [Errmrs. conveyance ; yet where by a Public Works Act the land of an indivi- dual is authorised to he taken at a price to be fixed by a jury, the cost of the conveyance is to be paid by the purchaser. — JReddie v. Higgin- botJiam, 4 S. Bell, 268 (1845) ; Aff. 8. A power may in Scotland, as in England, be exercised without express reference to the deed creating it, but while in England prouf of the intention to exercise the power must be given by the party taking under the alleged exercise, in Scotland ^e onus probandi lies on the party alleging that it was not intended to be exercised. — CunninghameY. M'Leod, 5 S. ; Bell, 210 (1846); Aff. 3 D. 1288. See FoKFEiTUEB, 9, 10 — Heir, 15 — Outlaw. II. Payment of Price. 9. A contract of sale having stipulated that the disposition should be delivered on 1st Ifovember and the balance of the price paid on the 11th, and possession having been given prior to November, the vendor, on tendering the conveyance, is entitled to demand heritable security for the price, and to refuse delivery till it is given, and to compel the purchaser to accept it on these terms. — Haldane v. Anstruther, Robert. 601 (1727) ; Aff. M. 14174. 10. On a sale of lands on which creditors have claims, and for which they arrest the price in the purchaser's hands, he is not entitled to resile, but the proper course is to bring aU the creditors of the vendor into a multiplepoinding, and on payment of their debts thereunder the purchaser is entitled to absolute warrandice of the several dis- charges and to an assignation of the debts. — Haldane v. Anstruther, Eobert. 601 (1727) ; Aff. M. 14174. 11. A purchaser failing to find satisfactory caution for the price in terms of a minute of sale, cannot compel implement of the sale. — Anderson v. Anderson, 2 P. 22 (1759) ; Aff. III. Errors and Latent Incumbrances. 12. A sale of an estate, under an Act of Parliament, which described it as then let on lease to certain tenants, held not to include the right of reversion to certain wadsets not in fact so leased, but included in the decree of sale made in the Court of Session. — York Bgs. Co. v. Ferguson, 2 P. 541 (1780) ; Eev. 13. In a judicial sale the teinds were represented as valued and exhausted, as proved by a sub-valuation (which the purchasers had opportunity of inspecting), and stated in an interlocutor of the Court, but after the sale it was discovered that the sub-valuation was irregular and invaUd ; held that the purchaser was not entitled to an abatement from the price. — Ferguson v. Mossman, 3 P. 531 (1797) ; Aff. Errors.] CONVEYANCING. 91 14. In a judicial sale of two properties the boundary was marked on a plan, but in the description it was said to be a burn. Held that after the lapse of many years, during which the plan had been followed as giving the boundary, it was incompetent to revert to the description, it being alleged that the course of the burn had meanwhile changed. — Glassell v. Harl of Wermjss, 5 P. 104 (1806) ; Aff. 15. A disposition of " the just and equal half of the nine-shilling land of old extent in the Garth quarter, commonly called BuUshill," carries the whole land called BullshiU, being one-half the nine-shUling land. — Forrester v. Macgregor, 1 S. & M'L. 441 (1835) ; Aff. 9 S. 675. 16. A general conveyance of all a deceased party's estate cannot be set aside on the ground that part of it had been sold for taxes. — Robertson v. Pattinson, 5 S. Bell, 259 (1846) ; Aff. 6 D. 945. 17. Lands being sold with entry at Whitsunday 1807, and assigna- tion of rents for crop and year 1807, the purchaser has not right to the rent paid at Whitsunday and Lammas 1807. — Sheppard v. Wather- ston, 5 Dow, 278 (1817); Aff. See Landlord and Tenant, Construc- tion of Lease. 18. A purchaser of an estate discovered subsequently to be held subject to a right of pre-emption by the superior, held entitled to retain it as against the son of the vendor, on giving him a guarantee that he would not claim under the warrandice in the conveyance in the event of being evicted by the superior. — Scotland v. Mercer, 1 Dow, 229 (1813) ; Aff. 19. The seller of growing timber, to be cut by the purchaser imme- diately, having two years afterwards sold the lands, not knowing that the wood had not been cut, held not liable in repetition of the price of the wood to the purchaser of the land. Eemit to consider whether the purchaser of the lands, having notice that the wood had been sold, can take advantage of the delay in cutting it to stop its removal — Duff v. Brown, 6 P. 332 (1817); Bev. 20. A house being sold for L.90, and on condition that the purchaser should procure for the vendor an ensign's commission, and discharge an heritable debt on the house, which was stated by the vendor not to exceed L.90, and it afterwards appearing that by arrears of interest the heritable debt had been largely increased, on which the purchaser refused to procure the commission, the vendor was held bound to relieve the purchaser of all the debt above L.90, and the purchaser only liable for the price of the ensign's commission and interim interest thereon, but not for the pay of an ensign. — Cargill v. Graigie, 1 S. Ap. 134 (1822); Alt. 21. A purchaser is not liable for melioration claimed by a tenant not under his lease, but under a separate agreement with his landlord ; but the vendor may have relief against the piirchaser if there was a general 92 CORPOEATION. arrangement in the contract of sale tliat the purchaser should pay such meliorations, and he has notice, before the disposition is executed, that the particular one sued for exists. — Bruce v. M'Leod, 1 S. Ap. 213 (1822) ; Alt. See Landlord and Tenant, 11. 22. A purchaser of an estate on which it afterwards appears that there is a latent burden under a lease, but not discoverable from the lease, and unknown to him, is entitled to be relieved of it out of the price. — Ferrier Y. Mudie, 1 S. Ap. 455 (1823); Aff. 23. A purchaser of land who has refused an offer of restitutio in integrum is not entitled to damages from the seller, on the ground that by a concealed lease the land was rendered inappKcable to the purpose for which he had bought it. —. Eeddie v. Syme, 6' W. # & 188 (1832) ; Aff. 9 S. 413. 24. An assignation of rent intimated to the tenant, but not followed by actual receipt of rent from him, is void against a purchaser of the estate without notice. — Balfour v. Li/le, 2 S. Sf M'L. 1 (1835) ; Aff. 11 S. 906. ^yy See LicSfr Agent, 15L,/+ COPYEIGHT. 1. In an action for penalties under 8 Anne, c. 19, it is improper to combine conclusions for damages at common law, or to join as pur- suers parties claiming distinct rights in different books. — Midwinter v. Kincaid, Gr. ^ St. 488 (1751) ; Alt. M. 8295. 2. Although the Copjrright Act, 8 Anne c. 18, gave penalties only in the case of works entered at Stationers' Hall, and there had been found to be no common-law right of literary property, yet as the Statute declared the exclusive property to be vested in the author for a certain term, he has during it a right to sue for damages, or for interdict, in the event of such right being infringed. — Cadell\. Itobertson, 5 P. 493 (1811) ; Eev. M. Literary Prop. Ap. No. 5. See Corporation, 4. 3. In an action for breach of copyright, the ownership may be proved without production of a formal assignment. Opinion that a receipt for the price by the author is sufficient. -^ /i^2/Ze v. Jeffreys, 3 M'Q. 611 (1859) ; Aff. 18 D. 906. COEPOEATION. See also Burgh. I 1. A corporation having passed a rule granting allowances at a fixed rate to reduced widows of members, if of good character, a widow fall- CORPORATION. 93 ing under these conditions is entitled to compel payment to her of the allowance so long as the corporate funds permit. — Fleshers of Glas- gow Y. Nelson, 3 W. 4r S. 209 ; 3 Bligh, N.S. 384 (1828) ; Aff. 4 S. 405. 2. A summons in the name of certain individual office-hearers of the Society of W.S. cannot be sustained, whether they are a corporation or not. Query, Whether they are a corporation? A corporation cannot pass by-laws not consistent with the general law of the country. — Graham v. Writers to the Signet, 1 W. ^ S. 538 (1825) ; Rev. 2 S. 214. 3. A corporation may be established in Scotland without any charter from the Crown, either by the burgh corporation or lords of the barony or regality. No name or special form of words is necessary for its constitution, and it may make by-laws affecting others besides its own members. — University v. Foe. of Physicians, ^c, in Glasgow, 2 JS. ^ M'L. 275 ; 1 RoUn. 397; 7 CI. ^ Fin. 958 (1840) ; Aff. 15 S. 736. 4. The grant of a corporation haTiag conferred right to a penalty for breach of their privileges, it does not take away the common-law right of interdict. — University v. Fac. of Physicians^ Sfc, of Glasgow, 2 8.^ M'L. 275; 1 RoKn. 397 ; 7 C7. ^ Fin. 958 (1840) ; Aff. 15 S. 736. 5. Question, Whether the Convention of Burghs is a corporation, beiag annually dissolved, and not adjourned ? Judgment, that in any case its clerk's salary being voted annually, it may be reduced at plea- sure, and opinion that the terms of appointment do not confer the office for life. — Convention of Burghs v. Cunningham, 1 S. Bell, 628 ; 9 Gl. Sr Fin. 144 (1842); Rev. 1 D. 1077. 6. Action lies for damages against the individual members of a cor- poration or other body if they refuse to perform ministerial duties to the injury of any person. — Ferguson v. Earl of Kinnoull, 1 S. Bell, 662 ; 9 CZ. ^ Fin. 251 (1842) ; Aff. 3 D. 778. 7. A society which by its articles and its charter has power to assign a portion of its funds to the relief of indigent members, and their widows and children, has power to vote a contribution to a widows' fund estab- lished by some of its members, and to assign to it part of the entrance fees of members. Opinion that a member assenting to this arrange- ment for some years is barred personali exceptione from claiming repe- tition of the sums paid. ■ — Ellis v. Henderson {Soe. of S.S.C.) ; 3 S. Bell, 1 (1844) ; Rev. 4 D. 370. 8. The presence of parties, afterwards found to be disqualified, in a corporation or chtirch court does not avoid its acts. — Livingstone v. Proudfoot, 6 S. Bell, 469 (1849) ; Aff. 8 D. 898. See Appeal, 80, 81. 94 COURT OF SESSION. {Jurisdiction. COUNSEL. 1. A bond of anrnuty given to an advocate in consideration of his management of the grantor's law affairs, the annnity to continue so long as he had any law affairs, may he sued upon hy the grantee's assignees after his death for arrears from the date of granting, and being impro- bative, the question whether holograph allowed to be referred to the grantor's oath, and on his failing to depone, he is held confessed. — Fraser v. Sandilands, Bolert 209 (1718) ; Aff. 2. Bonds of annuity to an advocate for professional services done, and to be done, are valid. — Coins, of Foxf. v. Loclchart, Rohert. 514 (1725) ; Aff. 3. Counsel called upon by the opposite party to depone whether they had not seen a cancelled deed ia their client's hands, and on then- refusal to depone, judgment given against their client on the point. — Schaw V. Houston, Eobert. 561 (1725) ; Aff. 4. Counsel or agents drawing pleadings are responsible to the Court for their propriety. — Hamilton v. Anderson, 3 M^Q. 363 (1858) ; Aff. 5. Counsel have authority to refer an action to arbitration without special instructions. ^ — Maclcenzie\. CHroan, 2 S. Bell, 43 (1843); Aff. 3 D. 318. See also Arbitration, 6. 6. Question whether the Dean of Faculty or King's Counsel have precedence at the bar. — Crichton v. Ori^rson, 3 W. 4^ S.. 333 (1-828). 7. Protest of precedence over Queen's Counsel made by Dean of Faculty. —£fflKA; of Scotland v. Gardyne, 1 Jf'Q. 359 (1853). See Action, 24 — Appeal, Appeal Cases — Bdbgh, 32 — Entail, 170. COUET OF SESSIOK I. Jurisdiction, ... p. 94 I III. Judsments, ... p. 96 II. Judges, 96 I I. Jurisdiction. 1. A claim for casualties, alleged to be granted in a Crown charter, must be decided by the Court of Session, and not in the Court of Exchequer. — Dundas v. Lord Advocate, 2 P. 516 (1779). But the point not reported. See the Appeal Cases. 2. The Court of Session is entitled to punish with imprisonment and other penalties a witness prevaricating in his evidence ia a civil suit, but appeal lies agaiast the sentence. — Carse v. Lord Advocate, 3 P. 1 (1781); Aff. Jurisdiction.'] COUET OF SESSION. 95 3. The "Writers to the Signet cannot by action against the Solicitors before the Supreme Courts impeach the appropriation to them of seats in Court by the Court of Session. — S.S.C. v. W.S., 1 W. & S. 348 (1825) ; Aff. 2 S. 753. 4. The Court of Session has jurisdiction to keep inferior Courts, in- cluding Presbyteries, from transgressing the law, or exceeding their jurisdiction, even where their decision is by statute final on the merits ; in all Courts not exempted by statute any proof led must be taten in writing, whether the decision on it be subject to appeal or not, and proceedings against a schoolmaster, under 43 Geo. III. c. 54, form no exception to this rule. — Campbells. Brown, 3 "W. & S. 441 (1829) ; Aff. 3 S. 480, and 4 S. 174. See Patronage, 13. 5. The Court of Session has jurisdiction on matters of law in an advo- cation from the Justices of the Peace, although the statute on which they proceed gives only a summary remedy before them. But when an offence is to be proved before the Justices, the Court can only remit to them to take the evidence with a declaration of the law. — Morrison v. Mit- chell, 4 W. & S. 162 (1830), and 3 S. & M'L. 285 (1838) ; Aff. 5 S. 909 ; 10 S. 230. 6. Where a statute gives to the SheriEf exclusive jurisdiction in all actions or suits relative to the Act, it is incompetent to bring an action of declarator of right in the Court of Session in regard to a matter arising under the act respecting which the Sheriff has power to give a sufficient remedy. — Balfour v. Malcolm, 1 S. Bell, 153; 8 CI. & Fin. 485 (1842) ; Aff. 2 D. 329. 7. When, on a lunatic being apprehended by warrant obtained by the Procurator-Fiscal, his relatives enter into a bond to keep him in safe custody, the Court of Session cannot reduce the bond, the Sheriff and Court of Justiciary alone having jurisdiction. — Mackenzie v. Scott, 6 S. BeU, 84 (1847) ; Aff. 8 D. 271. 8. A statute having authorised review of the decision of the Sheriff by appeal to the Court of Justiciary, on certain grounds, among which incompetency, including defect of jurisdiction, is mentioned, and having declared that no decision under the authority of the act should be otherwise reviewed, the Court of Session cannot reduce a decision of the Sheriff on the ground of his not having had jurisdiction. — Graham V. Mackay, 6 S. BeU, 214 (1848) ; Aff. 7 D. 515. 9. The Court of Session is not deprived of its jurisdiction by impK- cation from the Court of Exchequer being vested by statute with juris- diction. — Evans «. M'Loughlan, 4 M'Q. 86 (1861) ; Aff. 21 D. 532. See Adjudication, 5 — ^Admiralty — Alien, 2 — ^Appeal, 100 — Crown, 5 — Entail, 168 — Forfeiture, 1 — Sheriff. 96 COURT OF SESSION. [Judgments. II. Judges. 10. TbeUnion, Article 19, enacts " that none shall be named ordinary Lords of Session but such as have served in the College of Justice as advocates or principal clerks of Session for the space of five years." An advocate of nearly seven years' standing, who had personally attended the Court during fifteen months only out of forty during that period, and had been absent during the rest of the time in London in attendance on Parliament as a member, was held qualified under the Article. (New act passed in 1724.) — Haldane v. Fac. of Advocates, Robert. 422 (1723); Eev. 11. A Judge is not liable to an action of damages for words spoken from the Bench censuring the general professional conduct of a practi- tioner in his Court. — Miller y. Hope, 2 S. Ap. 125 (1824) ; Aff. F. C, \st June 1821. See Justice of Peace, 4. 12. A Judge who has acted as leading counsel for a party properly declines giving his opinion or vote in deciding the case. Before the Judicature Act (1825), a Judge promoted after the hearing, as well as one who had heard the argument, but who retired before considering matter noviter veniens, was not computed. — Innes v. Exrs. of Duke of Gordon, 4: W. 4- S. 305 (1830) ; Aff. 6 S. 279. See House of Lords, 15, 16. III. Judgments. 1 3. No regulation would be more advantageous, in cases of appeal, than for some mode to be devised for the Judges to send us an authentic statement of the grounds of judgment. (Per Lord Eldon.) — Wilson v. Alexander, 5 P. 189 (1807). 14. Observations (by Lord Brougham) on the impropriety of the Court below stating their dissent from the judgments of the House. — Gordon v. And.erson, 7 W. ^ S. 545 (1835) ; II S. 647. 15. Observations on the duty of the Court to state the reasons of its judgments. (Per Lord Brougham.) — Glendonwyny. Gordon, 3 S. ^ M'L. 76 (1838). ' 16. Observations on the propriety and advantage of written opinions in moving judgment in aU Courts. — Presbytery of Auckterarder v. Sari ofKinnoul, M'L. f B. 316 ; 6 CZ. ^ Fin. 646 (1839). 17. The Court ought to give its reasons in giving judgment. (Per Lord Brougham.) — Stewart v. Gibson, 1 Robin. 277 and 285; 7 CI. 4- Fin. 706 (1840). See Appeal, 5. Grant hy.\ CROWN. 97 CEOWN. I. Property op P- 97 I III. Grant by p. 97 II. Debt due to, 97 | I, Property op. 1. A grant of the Orkney Islands, part of the Crown's annexed pro- perty, heing made, and the grantee haYing heritably burdened the same, and the grant being afterwards reduced as Ulegal, but afterwards a second grant beiag made by Act of Parliament of the same lands to a descendant (though not a legal representative) of the same family, the heritable security does not revive, so as to attach to the new grant. — Brown t>. Earl of Morton, Eobert. 254 (1720) ; Aff. 2. Held that a Crown charter granting the right of entering vassals, and receiving casualties, ia Orkney and Zetland, to a, subject, as ultra vires, and its ratification by a private Act of Parliament immaterial, beittg subject to the Act salvo jure, of the same Parliament. — Dundas V. Lord Advocate, 2 P. 516 (1779) ; Aff. M. 15103. 3. The statutory trustees of a navigable river having, on resuming ground which had once formed part of the bed, agreed to give com- pensation to the private parties who had claims upon it, the Crown is not entitled to require the compensation to be paid to it, as owner of the bed. Costs not given against the Crown. — Lord Advocate v. Hamilton, 1 M'Q. 46 ; 1 Stu. 644 (18r2) ; Aff. 11 D. 391. See Property, 26. II. Debt dub to. 4. The Crown has no preference in the case of adjudications of real estate. — Murray W.Thomson, Cr. & St. 594 (1755); M. 7073. 5. A suit for a Crown debt in Exchequer is no bar to an action in the Court of Session for attachingthe debtor's heritage. — Earl of Galloway v. Comrs. of Treasury, 4 P. 165 (1800) ; Aff. M. Jurisdiction, Ap. No 7. 6. The Crown cannot seize by extent property which its debtor had before the teste of the writ conveyed to trustees for relief of parties who had become cautioners for him, and which assignation had been intimated. — Spears Y. Lord Advocate, M'L. ^R. 585;6CT. ^ i?'m. 180 (1839) ;iJe». See Landloed and Tenant, 19. III. Grant by. 7. A grant by patent of a right to print Bibles, &c. reciting an un- dertaking by the grantee on behalf of himself, his heirs, partners, and assignees, but made only to himself, authorises an assignation of the right in whole or part, and the assigner's right does not fall by failure in the grantee to take the oath requisite. ITie Sovereign can grant a G 98 DAMAGES. [For Illegal Acts. sole right of printing Acts of Parliament and " the hooks of the Com- mon and Municipal laws of Scotland." — Baskett v. Watson, Robert. 197(1717); Aff.M. 13254. 8. The "King hy his prerogative had the right of granting ia England and ia Scotland an exclusive right of printing the Bihle, Common Prayer, Psalms, Confession of Faith, and Catechisms, and the grantees were entitled to prevent the importation of copies printed out of the respective kingdoms. — Manners y. Blair, 3 Wi ^ S. 268 ; 3 Bligh N, S. 391 (1828) ; Alt. 4 S. 559. 9. The grant by charter of the office of Keeper of HolyTOOtJ Park does not convey any feudal right in the property of it, and cannot, by possession or usage, be converted into a right of property in the soU, and though the grant is " with all emoluments," the Keeper is not en- titled to work, for his own profit, even quarries in use to be worked. — Officers of State v. Eari of Haddington, 7 W. & S. 468 (1826) ; Eem. 2 S. 420; and 5 W. & S. 570 (1831) ; Eev. 8 S. 867. 10. A grant by the Crown for a period beyond the Sovereign's hfe of an office of Eeceiver, with a salary beyond the whole receipts charged on other land revenues, is a covert form of granting a pension, and is iRegal — Lord DunglasY. Off. of State, 1 S. Bell, 537 ; 9 C7. ^ Fin. 173 (1842); Aff. 1 D. 300. See Admiralty, 3 — Pateonagb, 2, 3, 4, 7, 11 — Peopbrtt, 6 — Public Oppice, 1^ — Salmon Fishinch-Sanotdabt. DAMAGES. I. Foe Illegal Acts, . p. 98 1 III. Actions' against Public II. For Accidents, .... 99 I Oiticbes, ... p. 100 See also Fraud, 6 — ^Libel. I. Foe Illegal Acts. 1. Pending an action relating to a forfeited estate, one of the parties seized and conveyed the other to his own house by force ; this amounts to battery, and may be sued on under the Act 1594, c. 219, after the original action has been determined, and notwithstanding a subseq[uent statute of indemnity. ^- Eobertson v. Eobertson, Eobert. 55 (1712); Aff. M. 6828. 2. In an action of spuUzie objections to the relevancy must be iirst determined. In proving restitution of the goods one of the party by whose leader the spmlzie was committed is admissible as a witness. Semble, that a military officer acting under general orders from a superior officer may be liable for spuilzie. — Munro v. Mackenzie, Robert. 477 (1724); Alt. Accidents.] DAMAGES. 99 3. Persons present with a tand of marauders, though not proved to have personally committed damage, are liable for the amount of the damage committed hy the hand, which may be proved by the oath iii litem of the owaeis. ^ Machevzis v. Maekilligin, Eobert. 431 (1723) ; Aff. 4. An action against the burgh under the Stat. 1 Geo. I. c. 5, is pro- perly brought against the Magistrates and Town Council. Question, whether the removal of property forms a ground of damages against the burgh. — Stratton v. Mags, of Montrose, Or. 4r St. 369 (1744); Alt. 5. Damages may be given conjunctly and severally agaiast parties engaged in committiag an assault, and evidence of prior assaults is ad- missible to prove malice and premeditation. — Maedoitall v. Macdonald, 2 Dow, 66 (1813) ; Aff. 6. Damages are due for a severe blow on the head with a bar of iron, though the party struck had first given a slight blow on the shoulder with the fist.— Z>om"e v. Douglas, 1 S. Ap. 125 (1822) ; Aff. F. G. 30th May 1817. 7. A party charged on a horning, on which arrestment and caption are both used, is not entitled to damages for illegal arrest on the ground that he had offered part payment on condition of the charger passing from a disputed item, or that two days before the apprehension the same had been consigned and the arrestment loosed, this fact not being proved to have been known to the charger. Query, If it were material ? — Cooper V. Campbell, 1 TF. ^ & 131 (1825) ; Aff. 2 S. 335. See Action, 87 — ^Paetnebship, ^8, 43— Med. Pug. 1 — Superior AND Vassai, 4. Seduction. — See Action, 104 — Husband and Wife, 33. II. Accidents. 8. Children held entitled to damages for the death of their father through fa llin g into an unfenced coal-pit within four feet of the high Toa.d.— CadellY. Black, 5 P. 567 (1812) ; Aff. M. 13905. 9. A party making an opening for the purpose of his work in or leadihg from a highway is not answerable for accidents thereby occa- sioned when he has ceased, although temporarily, to use it for that pur- pose, and while it is being used for purposes over which he has no con- trol. — Milne v. Smith, 2 Dow, 390 (1814) ; Rev. F. C. 8th March 1810. 10. A common stair may be considered as a highway to the extent of supporting an action for damages on account of an accident suffered through passing from it into an unfenced opening. — Milne v. Smith, 2 Dow, 390 (1814) ; Rev. F. O. 8th March 1810. 11. In a claim for damages for injury done by a dog, evidence is. g2 100 DAMAGES. [Liability of Public Officers. necessary that the owner was guilty of negligence, and ohserved that to establish this in England it is necessary to proTe that the owner knew the dog to he of savage habits, but that such previous knowledge is perhaps not essential in Scotland. The owner is not liable if he keeps the dog properly secured, and another person looses him, and incites him to mischief.— i?7ee??img'v. Orr, 2M'Q. 14 (1855) ; Bev. 15 D. 466. 12. A son is bound to support his mother, and therefore the mother has a title to sue for damages for his death by an accident. — "Weems V. Mathieson, 4 M'Q. 215 (1861) ; Aff. See Landlobd and Tenant, 6, 8 — Master and Servant. III. Liability of Public Officers. 13. Thread seized under 28 Geo. III. c. 17, by the Procurator-Fiscal as illegaUy manufactured ordered to be restored, reserving question of damages in respect of the seizure. — Meek v. Mitchell, 6 P. 420 (1819) ; Aff. F.C. 29th May 1818. 14. An action for malicious prosecution wUl not Ue unless there was absence of probable cause. It will not lie against a Procurator- Fiscal where he only acted as private agent, and officially gave concur- rence only. — Arbuckle v. Taylor, 3 Dow, 160 (1815) ; Eem. See 16. 15. Action is competent agaiast one for instigating and abetting another to do an unlawful action without calling the party instigated as defender. But a public officer, holding a gratuitous office, and acting bcma fide in supposed discharge of his duty, is not liable in damages to a party injured thereby. — Watty. Blair, 1 S. Ap. 48 (1821) ; Rev. 16. An obligation by private parties to pay the expenses of a prose- cution instituted by the Procurator-Fiscal to try the legality of a certain manufacture is valid, and entitles the Procurator-Fiscal to relief from actions of damages brought agaiast him on account of the prosecution, at least up to the date at which it was disclaimed by the parties, and to a share in the expenses and damages pro rata, according to his own pecuniary interest in the penalties. — Coopers v. Kerr, 1 W. ^ S. 232 (1825) ; Aff. 2 S. 419. 17. Commissioners of Police being liable to be sued, through their clerk, for anything done or ordered by them in virtue of the Police Act, are not liable to be so sued for misconduct on the part of one of the constables. Neither is the Superintendent of Police liable to be so s-ued for the purpose of making the Commissioners liable. — Thomson ■V.Mitchell, 1 Bobin. 162 (1840); Bev. \& S. 409. 18. Boad trustees are not liable for damages for injury caused to parties using the road in consequence of the negligence of workmen in executing operations on it within the powers of the trustees. Such a question, being one of law, appearing on the defences, ought to have DEATHBED. 101 been decided before sending the case to a jury. — Duneany. Findlaier, M'L. ^ R. 912 ; 6 CT. ^ Fin. 894 (1839) ; Bev. 16 S. 1150. 19. Action for damages lies against the members of a church court if they refuse to perform ministerial duties. — Fergwon t. Farl of Kin- noul, 1 ;Sf. Bell, 662 ; 9 CT. ^ Fin. 251 (1842) ; Aff. 3 D. 778. See Cautioner, 16,17,1 8 — Justice of Peace, 4, 7 — ^Wrongous Impr. , 1 . DEATHBED. 1. Two out of four heirs-portioners having granted renunciation of a right to challenge a future settlement, ex eapite leeti, the renunciation stipulating for certain conditions in favour of those who might sign it, in the event of its not being signed by all the four, but these conditions having been reduced as invalid by the two who did not sign, the re- nunciation is not binding on the two who did. — Murray v. Kinloch, Cr. & St. 245 (1739) ; Aff. 2. Bonds of provision to children executed on deathbed, ia virtue of a reserved power to burden, etiam in articulo mortis, contained in the marriage-contract, are not reducible ex eapite lecti. — Eorbes v. Forbes, 2 P. 8 (1766) ; Eev. M. 3277. 3. In a disposition granted the heir-at-law, a reserved power to burden at any time during the granter's life warrants a burden created on deathbed, at least against the heir taking under the disposition. — Pringle v. Pringle, 2 P. 130 (1767) ; Eev. M. 3287. 4. A conveyance of an heritable debt, by a father as a provision to a younger son, iu fulfilment of an instruction long before given to his agent, but the conveyance being in England, and actually executed on deathbed, and signed by only one notary, none other being procurable at the place, is reducible both on the head of deathbed and of being improbative. —Douglas v. Earl of Morton, 3 P. 671 (1773) ; Aff. 5. Heirs cannot object deathbed to a deed of succession, unless they were called by the last feudal investiture or destination. — Duke of Hamilton v. Douglas, 2 P. 449 (1779) ; Aff. M. 4356. 6. In deathbed, the day of executing the deeds is to be counted as indivisible, and the sixty days acccordingly commence to run from mid- night of that day, but as the last day of them will also be considered indivisible, death after the commencement of the sixtieth day will be considered as beyond the sixty days. — Mercer v. Ogilvie, 3 P. 434 (1796) ; Aff. M. 3336. 7. A gradual decline of health consequent on an accident, constitutes sickness under the statute. — Mercer v. Ogilvie, 3 P. 434 (1796) ; Aff. M. 3336. See 17. 8. A reservation, in a deed conveying land to a stranger, of a power 102 DEATHBED. t.o alter,, even on deathbed, eistends only to. affeet. ths dfeponee, and does not entitle the dispomer to affect the heir's right to reduce a disposition to another party on deathbed. The heir, thongh he takes the benefit of a revocation on deathbed, is not bound to appro- bate the new disposition. Opinion by Lord Loughborough, that; there is, no ground for distinction between express and implied revocation on deathbed, such as was decided in Eowan v. Alexander, M. 11371. Opinion also that the law of deathbed is a rule of great excellence. See 17.— Crauford v. Coutts, 4 P. 100 (1799); Eev. M. 14958. See final declaration of House in M. 14963. 9. An owner of land having by mortis aaiisa deed settled it on one not the heir, reserving power to alter and revoke even on deathbed, and having on deathbed revoked it, excepting as to the clause giving power to revoke, and disponed to another, the disponee under the first, deed is effectually excluded, but the heir of provision under the former iavestitures is entitled to reduce the second deed,, and at the same time take the benefit of the revocation of the first which it contains. A sale on deathbed, not, completed by acceptance of the purchaser before the seller's death, also operates as a revocation of a prior settlement, but is reducible by the heir. Eowan »* Alexander, M. 11371, and 2 HaHes- Q59, was wrongly decided, but cannot now be disturbed. — Crauford V. Coutts, 5 P. 73 ; 2 Bligh, 655 (1806) ; Eev; See 8, 14, 15. 10. By revocable deed in liege povstie, heritable property was con- veyed to trustees to pay debts and legacies, and to be conveyed, as to the residue, to such persons as might be appointed by the settler in writing, and by deed of direction on deathbed he directed, the trustees to sell the whole real estate and pay the proceeds as he there directed ; held that the heir-at-law was entitled to reduce the deathbed deed as to the heritage. — Wauchope v. Ker, 5 P. 559 (1812) ; Aff. See 18. 11. A minute of sale, having been abandoned by the parties, and the purpose it was intended to serve having been effected by a disposition, but which was executed on deathbed, ib is reducible by the heir. — Eanken v. CampbeU, 5 P. 573 (1812) ; Aff. M. Deathbed, Ap. No. 5. 12. Where a party who had executed in liege poustie a bond of pro- vision, executed a new one on deathbed different only in respect of the time allowed for payment, and directed the first to be cancelled, remit to take the evidence of the person who had cancelled it, and of others; for the purpose of ascertaining the true intent of the act. — Mure v. Mure, 6 P. 399 (1818); Eev. F. C. 1st June 1813. 13. By deathbed deed the real and personal estates were directed to be sold and the proceeds to be invested, the interest to. be paid to the heir-at-law for hfe, and after his death the fee to be paid to other parties. The heir-at-law reduced the deed as to the land ; held- that DEATHBED. 103 he could not claim a life interesti in tlie personal estate either under the deed, or as next of kin, and observed that the personal estate might he paid to the party entitled in fee, -without waiting for the heir-at-laVs death.-— Ker v. Wauchope, 1 Bligh, 1 (1819) ; Aff. 14. A deathbed deed altering, but not expressly reiroking, a prior deed, does not admit the heir of iavestiture whom the prior deed had excluded The heir is not entitled to the benefit of a clause of redemp- tion in reconveyance, subsequently revoked as to the lands in question. — Duke of Eoxbuighew. Wauchojje, 6 P. 548; 2BHgh, 619 (1820); Aff. 15. A revocation on deathbed- of a deed containing a power so to revoke, is effectual although the deed containing the revocation is void in its other effects ex capite lecti, and the heir of line may found on the revocation while reducing the dispositive part of the deed. Ques- tion, whether the plea of deathbed would be excluded if the deed were a mere repetition of the prior deed which it revokes. — Cunningham V. Whiteford, M. 16199 (commented on) ; Mudie v. Moir, 2 S. Ap. 9 (1824) ; Aff. r. C. 2d March 1820. 16. An heir of Hne excluded by a tailzie has a title to sue a reduc- tion of a trust-deed by which it is burdened, and of a deed of nomina- tion alleged to have been executed on deathbed, the three deeds forming together the settlement of the estate. — Earl of Strathmore v. Strath- more Trs., 5 W. & S. 170 (1831) ; Eev. 8 S. 530. 17. A deed is not reducible on this head if the disease of which the party died, however soon after the execution, was not contracted at that time, although the habits of the party at that time might render the disease, when taken, more serious. (Per Lord Brougham)- — The law of deathbed is a material part of the law of Scotland, and one so wholesome and judicious that it is of great importance it should be weU understood. —Mackay v. Davidson, 5 W. & S. 210 (1831) ; Aff. 6 S. 367. See 7, 8, 19. 18. A mortis causa deed having directed the trustees to pay the re sidue to such person as might be named in a writing under the settler's hand, and in default of such writing to his next of Idn, the heir cannot challenge such writing on the head of deathbed, being already ex- cluded by the deed. — Ker v. Vaughan, 5 W. & S. 718 (1831); Aff. 8 S. 694. See 10. 19. A son executed a mortis causa disposition of his whole estate, " in the event of my predeceasing my parents without leaving lawful heirs of my body,'' to his parents and the longest liver, and after the death of the longest liver to such persons as he might name by any deed even on deathbed ; and in case of dying without executing such deed, then to such persons as should be nominated by his parents. Held (1.) that a subsequent disposition of all property which might be- 104 DEBT. [Presumption of Payment. long to them at their death, made by the parents in the lifetime of the son, who survived them, took no effect. (2.) That the heir-at-law of the son, not being excluded by an effectual disposition to another, was en- titled to reduce a deed nominatiag heirs made by the son on deathbed. Observations by Lord Brougham on the great benefit of the law of death- bed. — Clyne's Trs. v. Clyne, M'L. & E. 72 ; 6 CI. & Fin. 539 (1839) ; Aff. 15 S. 911. See 8, 19. 20. Under a power in an entail to revoke or alter on deathbed, the whole of the fetters may be revoked, and the destination will remain effectual — MiUer v. Marsh, 2 M'Q. 284 (1855) ; Aff. 15 D. 823. See Action, 28 — Heib, 4, 18 — Minor, 8. DEBT. I. Discharge, .... p. 104 I III. Indefinite Payment, p. 105 II. Presumption of Payment, 104 ] IV. Compensation, . . 106 See also Bond — Security — Interest. I. Discharge. 1. A general discharge having been executed between partners of all vouchers by or to each other, whether as iadividuals or partners, it does not apply to a bond by one partner to another for a private debt, unless the bond is proved to have been intended to be included in the dis- charge. — CraM/Mrti v. ilf'CormicA;, 2 W.^' S. 569 (1827) j Aff. 2. A written receipt (by a minor, but the case seemed not to turn upon the minority) is not conclusive, and without a reduction an inquiry may be ordered how much of the sum contained in the receipt was actually received, or might have been received without wUfol default. — Crauford v. Bennet, 2 W. 4r 8. 608 (1827) ; Rev. 3. A general discharge of debts due before a certain day does not dis- charge a debt arising from a cautionary obligation which subsisted before that day, but in respect of which no demand arose, or payment was made, tiU after it— M'Taggart v. Jeffrey, 4: W. 4r S. 361 (1830) ; Mev. 6 S. 641. See Featjd, 1, 2 — Stamp, 3, 4. II. Pbesumption of Payment. 4. A bill on an agent of the drawer is not presumed to have been paid without proof of payment, although there appears to have been funds in the agent's hands at the time, and no demand made on the bill for nineteen years. A receipt between officers of a regiment is valid, though neither holograph nor tested. — Lcuiy Sem/pill v. Murray, Robert. 282 (1720) ; Rev. M. 16921. Indefinite Payment] DEBT. 105 5. There is no presumption of payment of an annuity due by bond, though not sued upon for forty-four years after its date (including eleven years of minority), and nineteen years after the last payment became due. — Comrs. o/Forf. EstatesY. Lockhart, Eobert. 5U (1725) : Aff. 6. The principal and cautioner being both dead, the fact of the receipt for payment of the debt having been granted to the cautioner held to imply a presumption that he had paid it, though the principal had always paid the interest, the bond was found cancelled in his repo- sitories, and ten years had elapsed without claim by the cautioner's re- presentatives. — Cutlarv. Maxwell, Cr. ^ St. 58 (1731) ; Eev. 7. Special circumstances, coupled with delay of fifty years, held to extinguish a right of action on an acknowledgment of debt. — Campbell V. Halkett, Cr. & St. 427 (1749) ; Aff. M. 11634. 8. Eemission of penalties of a debt due to and adjudged by a trust, being allowed by the factor, are to be presumed to have been autho- rised by the trustees, if not challenged for twenty-five years. Circum- stances which were held to confirm the presumption. — Douglas v. Murray, 4 P. 4 (1797) ; Rev. 9. When property belonging to a son, as coming j5:om his mother, is sold, and the price received by the father, it remaius a debt agaiust his estate at his death, however long afterwards, unless there is positive evi- dence that the son has discharged his claim. — Lashley v. Hog, 4 P. 581 (1804) ; Alt. See Bankruptcy, 73-^-Trust, 52. III. Indefinite Payment. 10. An indefinite payment by a debtor may be ascribed by him sub- sequently to either of two obligations, which otherwise would be pre- scribed, and will not interrupt prescription in favour of both. — Garden V. Rigg, Or. ^ St. 409 (1748); Aff. M. 11274. 11. A law agent in Edinburgh having several accounts due to him by a country agent, and having required payment of one iu particular, and a sum having been in answer sent him to account ; held that it was to be imputed to that particular account, and so far relieved the client from hisjoint ]iabi]ity. — Mitchell r. Cullen, 1 M'Q, 190 ; 1 Stu. 718 (1852) j Rev. 12. Although an indefinite payment may be imputed to interest rather than to principal in the creditor's option, yet when such pay- ment is made under an agreement that 20s. in the pound should be accepted in full of all debts, with interest up to a certain date, it cannot be imputed in payment of subsequent interest. — Scott v. Sarideman, 1 Jf'G. 293; 1 Stu. 882 (1852); Rev. 11 D. 405. 106 DEED. rV. Compensation. 13. Circumstances in which certain debts were held to be iacluded in mutual settlement and discharge, and not afterwards pleadable in compensation.— HiUw. Grant, Cr. & St. 597 (1755); Eev. M. 2661. 14. A moveable debt due by a husband cannot be set off in compen- sation against a heritable debt due to his wife. — Sinelcdr v. Young, 3 P. 64 ; Aff. M. 5545. 15. Compensation is only competent, when the debt is liquid, or capable of immediate Hqiddation. — Downe v. Pitcairn, ZW.^S. 472 ; 4 Bligh, N.S. 550 (1829) ; Aff. 2 S. 658. See Assignation, 5 — ^Bank, 5, 7 — Bankruptcy, 44, 48, 49— Will. DEED. I. SUBSCEIPTION, ... p. 106 I III. EEASnEBS, ... p. 108 II. Testing Clause, . . . 107 [ IV. Delitbrt, .... 109 See alio Will — ^Wbittbn Document. I. SUBSCEIPTION. 1. A dying man having, in signing his will, written half his name without assistance, but been unable to complete it, and his hand hav- ing been guided iu finishing, the subscription is invalid. — Moniepennie V. Brown, Robert. 26 (1711) ; Aff. M. 15936. 2. Deeds executed by a blind and deaf man by means of notaries are void, if it appear that they were not read over to him in such a way as that he could distiactly understand them. — Aglimiby v. Max- well, 3 P. 365 (1794); Aff.. M. 16853. 3. A deed signed by a bliud man iu presence of two witnesses is pro- bative, although not read over to biTn before signing, and can be reduced only on proof (the burden of which lies on the pursuer of the reduc^ tion) that he did not know the contents of the deed, the true question in issue beittg whether the deed was his deed, iu regard to which, the not reading over is admissible, but not conclusive evidence against ths deed ; and the subsequent execution of a deed of alteration of the first is admissible evidence in support of the averment that he knew its contents. — Z)m/v. Earl of Fife, 1 S. Ap. 498 (1823) ; Rev. F.. a aOtt Nov.. 1819. 4. A party so far bhnd as to be unable to. read,- but able to see that ha had subscribed, may subscribe either by his own hand or by notaries, and if in the latter form, it is sufficient if the document state that from defect of sight he cannot see to read writing distinctly. — Reid v. Baxter, 1 Robin. 66 ; 7 CI ^ Fin. 261 (1840) ; Aff'. 16 S. 994. Testing Clame^ DEED.. 107 5. An assignation, written, on two pages, signed only on the last,. Mt with: a forged signature on the first, held vaM, it. not having been proved that the assignees had heen guilty of the forgery. — Scott v. Cochran, 6 P. 719 (1759); Aff. 6. When a deed, is contained in one sheet, signature on the last page is suflScient. A statement hy the suhscrihiag witnesses that they " do not recollect " seeiag the party subscribe or acknowledge his signature will not suffice to iavalidate the deed. Query, whether if they posi- tively deponed that they had not seen the execution, it would infer nullity of the deed, or only the statutory penalty against themselves. — Smithy. Bank of Scotland, 2 S. Ap. 265; 1 Bow, 272 (1813) y Aff. 7. Attesting witnesses may be called to prove that they were not present, nor heard the granter acknowledge his subscriptioiu The witnesses need not sign in presence of the granter on his acknowledging his subscription. The grantee of a bond of annuity executed of even date with a deed challenged, held iaadmissible as witness. — FranJc v. Frank, 5 P. 278 (1809) ; Aff. M. 16824. 8. A probative deed may be reduced, if it be proved that it was not signed in the presence of one of the attesting witnesses, nor the signa^ ture explicitly acknowledged in words or by equipoUents to the wit- ness before his subscription, and the attesting witnesses are admissible to prove that the execution was not in their presence, or acknowledged. — DuffY. Earl of Fife, 2 W. ^ S. 166 (1826) ; Aff. 4 S. 335. See Deathbed, 4 — Law Agent, 8 — Pebsonal Capacitt. II. Testing Clause. 9. The, designation of the writer of a deed as "gentleman" is suffi- cient. — Lady SempOl u. Murray, Eobert. 282 (1720). 10. Where both witnesses were servants to the granter, but only one was so designated, the other being undesignated, the deed is invalid. — Carre v. Haldane, Cr. & St. 51 (1731) ; Aff. M. 16924. 11. The designation of witnesses in the body of the deed is suppliable by the subscription of the several parties, by lapse of time and other adminicles, in deeds prior to the Act 1681, and a condescendence is un- necessary. — -Lord Advocate v. Urquhart, Cr. & St.. 586 (1755) ; Eev. M. 16903. 12. The omission to notice marginal notes in the testing clause may be remedied by proof of their having been added before signature. — Bruce v. Bruce, 2 P. 258 (1772) ; Alt. M. 10805. 13. A testing clause which names and designs the witnesses, but without stating that they are witnesses, each of them, however, having added the word " witness " after his subscription, is valid. — Wemyss V. Hay, 1 W. & S. 140 (1825) ; Aff. 1 S. 47.. 108 DEED. [Erasures. 14. An imperfect testing clause as regards one party to the deed does not make it void, as against another party whose subscription is correctly stated ; and even as to the party whose subscription is in- correctly stated, the defect may be cured by rei interventus. — Kibbles V. Stevenson, 5 W. & S. 553 (1831) ; Aff. 9 S. 233. 15. A bond of annidty of which the testing clause was improbative, through an error in. the Christian name of one of the witnesses, held to be effectual rei interventu against one of the parties subscribing, through whom the consideration, and several terms of the annuity, had been paid, though he was only the law agent of the party for whose be- hoof the money was advanced, and took no benefit by it himself — Hamilton v. Wright, 3 S. & M'L. 137 (1838) ; AS. 14 S. 323. 16. "Within six months after a deed has been given in to be regis- tered, but before it has actually been recorded, it is competent to correct, by an addition to the testing clause, an error which had been made in the name of one of the witnesses. — Cunninghame v. M'Leod, 5 S. BeU, 210 (1840) ; Aff. 3 D. 1288. See GuAEANTEE, 3 — Heir, 44, 45 — ^Infeftment. III. Ebasurbs. 17. Deletions and marginal notes signed by the granter of a convey- ance of patronage, but not noticed in the testing clause, do not give the presbytery a right of objecting. Semble that they do not annul the deed. — Cuming ». Presbytery of Aberdeen, Eobert. 364(1721); Aff. 18. The word "pounds" being written on an erasure, while the penalty was stated in merks proportionate to the sum, had merks been written instead of pounds, annuls a bond, although it had been, in a prior action thirty years before, decreed to be compensated, but, as was alleged, without having been produced in Court. — Kennedy v. Mac- dowal, Eoberii. 488 (1724) ; Aff M." 17063. 19. It is not a fatal erasure, in a deed of entail, that after the words " heir male" in the destination several words axe erased, and the word " whatsoever" written on the erasure. — Maxwell v. Houston, Eobert. 539 (1725) ; Aff. See 26, and Entad, 88. 20. A vitiated date in a disposition cannot be supported by parole evidence, even where a material part of the date is unvitiated. — Howie V. Merry, 3 P. 101 (1806) ; Aff. M. Writ, Ap. No. 3. 21. The date of execution of a deed being stated as the 24th April, the word fourth being written on erasure, it is not a vitiation in essen- tialibus. — Hotchkin v. Dickson, 6 P. 615 ; 2 BHgh, 303 (1820); Aff. 22. The fact of the name of an attesting witness being written on an erasure vitiates the deed, though the witness depones that he has no doubt it is his handwriting, and that he has no doubt he would not Delivery.] DEED. 109 sign as witness unless lie saw the deed duly executed, but has no special recollection of the particular deed. — Walker v. Gibson, 2 Dow, 270 (1814) ; Aff. F. C. 16th June 1809. See 6, 24. 23. Erasures in a deed executed in duplicate, and expressed in the testing clause of both duplicates to be so executed, do not Yitiate the deed, though not noticed iu the testing clause, if the words written on erasure in one duplicate are properly written in the other. — Earl of Strathmore v. Paul, 1 Eobiu. 189 (1840) ; Aff. 15 S. 449. 24. The letters " ohn" of the word John, the Christian name of the disponee, being written on erasure throughout, except in the testing clause, the deed is void. Evidence of the writer and subscribing wit- nesses is inadmissible to prove that writing on erasures was made be- fore subscription, and that the testing clause was filled up in presence of the subscriber. Observations on the facility afforded to fraud by the practice of filling up testing clauses, containing notice of erasures, &c., unless the subscriber indicates his knowledge that the testing clause was so filled up — Kedder v. Eeid, 1 Kobin. 183 (1840) ; Aff. 12 S. 681, and 13 S. 619. 25. When there is no evidence on the face of the deed that an erasure in substantialibus was made before execution, neither the words erased can be restored, nor the words written on the erasure supported by evi- dence, or by comparison with other parts of the deed, and all that has dependence upon them is void. A deed being thus void cannot be set up by homologation, or by either the positive or negative prescription. — Grant v. Shepherd, 6 S. BeU, 153 (1847) ; Aff. 6 D. 464. 26. In the irritancy of the deeds of the institute, " or of any of the said heirs," the words in. italics being written on erasure, do not invali- date the deed, it being capable of being read without them, while it is not admissible to supply in their place imaginary words as those which were erased.— GoUan?;. GoUan, 4 M'Q. 585 (1863) ; Aff. 24 D. 1410. See 19. See Bankruptcy, 17 — Infeftment, 10, 11, 12. IV. Delivbet. 27. A deed not dispensing with delivery, and found in the hands of an advocate who was the usual legal adviser of the granter, is undelivered. — DrummondiJ. Lord Advocate, Cr. & St. 503 (1751) ; Aff. M. 4875. 28. A bond of provision by a brother to his sisters, being in satisfac- tion of former bonds and in fuU of legitim, though not having a clause dispensing with delivery, is presumed delivered on being found in their possession. — Maitland v. Gordon, 2 P. 43 (1760) ; Aff. M. 11161. 29. A gratuitous bond of annuity by one brother to another, framed to take effect immediately, found in the hands of the granter's regular agent, who also acted occasionally as agent for the granter, though it 110 DOMICILE. was not proTed that lie was his paid agent, held delivered. The an- nuity had been regularly paid for a numher of years from the date of the bond, but had then been stopped by orders of the granter. ■ — Maule V. Eamsay, 4 W. & S. 58 (1830) ; Aff. 6 S. 343. 30. A trust-deed though not delivered, nor containing a clause dis- pensing with delivery, but reserving the truster's liferent, held mortis causa, and valid without delivery. — Brack v. Johnston, 5 W, & S. 61 (1831); Aff. 6 S. 111. See Evidence, 1 — Guaeanteb, 1, 4 — Heir, 39 — Husband and Wife, 37 — Multiplbpoinding, 1. DILIGENCE. 1. Diligence may proceed, on an agreement with a clause of registrar tion, — (1.) for an account ; (2.) for production of books ; (3.) for pay- ment of a sum or penalty. — Baird». Neilson, 1 S. Bell, 219 (1842); Aff. 2. Formal objections repelled. — Cleland v. Clason, 7 S. Bell, 153 (1850); Aff. 11 D. 601. See Adjudication — ^Aeeestmbnt— Bankruptcy, 17 — Damages- Inhibition — Sheriff, 5. DISSENTEES. 1. The Magistrates and Court of Session were not entitled to enforce by imprisonment an act of the Presbytery forbidding a clergyman of the Episcopal Church from exercising the ministry within their bounds. — Greenshields v. Mags, of Edinburgh, Eobert. 12 ; CoUes, 427 (1711) ; Eev. 4 Br. Sup. 774. 2. On a difference of opinion occurring in a body of dissenters lead-, ing to a secession of part of the body, the property held in trust for the several congregations remaius with that portion which adheres to the established government of the body, unless the seceders can establish that that portion has departed essentially from the original principles of the body. — OraigdalUe v. Aikman, 5 P. 719 ; 1 Dow, 1 ; 6 P. 618 ; 2 Bligh, 529 (1820) ; Aff. 3. Amemberof a congregation who has duriugthreeyears acquiesced in the transfer of the church, &c., to another religious body, cannot sue to set it aside. — Caimcross v. Lorimer, 3 M'a 827 (1860) ; Aff. 20 D. 997. DOMICILE. 1. A merchant pursuing his business abroad as his residence, loses his domicile of origin, though he may intend to return to it when he DOMICILE. Ill has made his fortune, and he does not recover it hy being ia process of transmitting his fortune to it, not having as yet personally changed his residence. — BruceY. Bruce, 3 P. 163 (1790) ; Alt. M. 4617. 2. A Scotsman entering the navy at twelve, contiauing in it for seven years j then in the Dutch service for several years ; again in the British navy for nine years ; in the Eussian for three ; then for twenty years until his death ia the British, having the residence of his wife and family at Gosport, but occasionally visiting Scotland, boarding his children there, and dying there, and haviag some house property there, held to be a domiciled Englishman. — Ommaney v. Bingham, 3 P. 448 (1796); Rev. 3. A Scottish peer having aU his estates ia Scotland, and which was the place of his residence for the greater part of the year, though resid- ing in London during the sitting of Parliament, and dying there, held domiciled in Scotland. — Ker v. Wauchope {Duke of Roxburgh), 1 Bligh, 1 ; Aff. 4. Where the domicile has been lost, jurisdiction rations originis cannot be sustained. — Grant y. Pedie, 1 TF. ^ & 716 (1825); Rev. 1 S. 495. 5. A Scotsman by birth, and owner of estates in Scotland, but resid- ing and carrying on business in London for fifty years, does not lose the domicile thus acquired, by returning to Scotland for a few weeks occasionally sine animo remanendi. — Rose v. Ross, A: W. ^ S. 289 ; 6 Bligh, N.S. 468 (1830); Rev. 5 S. 605. 6. The owner of estates in Scotland, and bom and educated there, and residing there during the greater part of the year, does not lose his Scottish domicile by holding office in the Government and attending parliamentary duties in London. — Warrender v. Warrender, 2, S. 4^ M'L. 154; 9 BligJi, N.S. 89; 2 CI. ^ Fin. 488 (1835) ; Aff. 2 8. 847. 7. A Scotsman by birth, and owner of estates in Scotland, on which from time to time he resided, does not lose his domicile by residing for several years in London without any regular occupation there. — Munro V. Munro, 1 RoUn. 492; 7 C7. ^ Fin. 844 (1840) ; Aff. 16 S. 18. 8. The domicile of origin must prevail tUl the party has not only acquired another, but has executed his intention of abandoning the first. — IfMJiro V. Munro, 1 RoUn. 492 (1840); Rev. 16 S. 18. 9. Domicile of origin in Scotland held retained by an heir of entail, who always expressed his intention ultimately to return and settle in it, and did reside in it from time to time for considerable periods, although the greater part of his Ufe was spent in other places, and at sea, but not in any settled avocation. Consequent legitimation, by subsequent marriage, of children bom in England before marriage. — Aikman v. Aikman, 3 M'Q. 854 (1860) ; Aff. 21 D. 757. 112 ENTAIL. [■WAo may Execute. 10. Domicile acquired is. England, held retained l)y retention of a place of residence in it, and performing the duties of magistrate, although the principal residence had latterly heen in Scotland, the country of origin. It is competent to examine the party whose domicile is in question, as to the iutentibn with which he changed his residence. — Maxwell y. M'Glure, 3 M'Q. 852 (1860) ; Aff. 20 D. 307. 11. A domiciled Englishman resorting to Scotland to avoid his creditors, and taking a house there on a six years' lease, but with liberty to sublet, held not to have lost his English domicile after an actual residence of four years without returning to England, there being some evidence of an iatention to return if his debts were paid. — Pitt v. Pitt, 4 M'a 627 (1864). See Husband and Wife, 30, 60, 79-83. IX. Powers to Grant Pro- visions, .... p. 132 X. Entailer's Debt, . . 135 XI. Charges on Estate, . 136 XII, SAiiES FOR Debts and Land-tax, .... 138 XIII. Contraventions, . . . 139 XIV. Recording and Making UP TiTUlS, 140 XV. Working off by Pre- scription, 143 XVI. Bar bt Eutherfurd Act, 144 ENTAIL. I. Who mat Execute, . p. 112 II. Form of Entail, . . . 114 III. Description of Heirs Bound 116 IV. Institute, 118 V. Devolution, 120 VI. Revocation and Altera- tions, 122 VII. Fetters, 123 1. By Reference, . . . 123 2. Validity of Fetters, . 123 VIII. Powers to Feu AND Lease, 129 I. Who may Execute. 1. A destination in a marriage-contract to the heirs of the marriage precludes a subsequent entail calling the heirs male before the heir of Hne of the mamage. — Stewart v. Graham (PhisgiU), Cr. & St. 365 (1744) ; Aff. Elchies v. Mutual Contr., ZSTo. 20. 2. A marriage-contract, in which the father biads himself to convey his estate to himself and the heirs male of the marriage, does not pre- vent him from executing an entail in favour of the heirs male of the marriage, with substitutions of his own heirs female before the heirs whatsoever of his eldest son. — Craik v. Craik (Duchrae), Cr. & St. 542 (1753) ; Aff. M. 12984. 3. A power of redemption being reserved to the maker of an entail entitling him to redeem the lands from the entail on payment of a gold noble, he does not need, after using the redemption, to make up titles again in his own person before executing a new entail. — Lord Advo- Who may Execute.] ENTAIL. 113 cate V. Bayne (not reported), Lord's Journals, 10th April 1759, and Appeal Cases; 4. An entail executed by a party having only a personal title to the lands is efifectual against purchasers. — Lord Napier v. Livingstone (West Quarter), 2 P. 108 (1765) ; Afif. M. 15409, 15418. 5. A tailzie, binding the heirs to redeem adjudications for the entailer's debt, which debt was contracted contra fidem of a marriage- contract, by which the entailer had previously conveyed the estate free of debt to himself and the heirs of the marriage, with power to limit the said heirs with such irritant and resolutive clauses as he should think proper, is void. — Fleming v. Fleming (Barochan), 2 P. 588 (1782); Aff. 6. A post-nuptial unilateral deed, whereby the husband conveys his estate to his wife in liferent and his heirs of his body in fee, has not the effect of a marriage-contract to give his heirs a jtts crediti entitling them to challenge a subsequent entail. — Sinclair v. Threipland (South- dun), 3 P. 113 (1789); Eev. 7. The husband of an heiress was by contract of marriage made a creditor on the estate for the purpose of enabling him to raise adjudi- cation and obtain a title, there being prior adjudications completed by declarator of expiry of the legal, infeftment and possession, and the husband afterwards by disposition, first directly to the wife and then to a trustee to lead adjudication, conveyed the estate to himself and wife in conjunct fee and liferent, and to the heirs of the marriage in fee, whom faiLiiig to the wife and her heirs, and afterwards obtained right to the first adjudication and charter of adjudication, both taken to himself and his heirs and assignees, and thereon executed a strict entail of the estate to himself and wife in liferent, and the heirs of his body in fee, and finally to his own heirs whatsoever ; held that the entail was vaHd. — Henderson v. Henderson (EarlshaU) ; 3 P. 686 (1791) ; Aff. M. 4215. 8. An heir under an imperfect entail having ratified a second and strict entail, and possessed under it, and the debts of the original entailer having been cleared off as the consideration for the second entail, the son succeeding to the heir so ratifying and enrolling himself as free- holder thereunder, is barred personali exceptione from afterwards reducing the second entail, though within the quadriennium utile, and though alleging that his titles under it had been made up by trustees in his minority. — Cunninghame v. Cunninghame (Balgownie), 1 W. & S. 103 (1825) ; Aff. 2 S. 232. 9. Eemit of consent to consider whether an entail was ultra vires of the entailer in respect of- a prior marriage-contract. — Macpherson v. Macpherson (Cluny), 5 W. & S. 77 (1831) ; 5 S. 826. H 114 ENTAIL. [Form of. 10. A trust-disposition for tehoof of creditors with power of sale, and on which the trustee is infeft, does not so divest the granter as to invalidate a suhsequent deed of entail of the estate hy him. in the form of a procuratory. — M'MiUan v. CampheU (Combie), 7 W. & S. 441 (1834) ; Aff. 9 S. 551. See Forfeiture, 9, 10— Outlaw. 11. An entail defective in some of the fetters was an effectual bar to the execution, prior to the Eutherfurd Act, of an entaU containing new fetters, and may be reduced by an heir who has made up titles under it. — Urquhartt;. Urquhart (Meldrum), 1 M'Q. 658 (1853) j Aff. 13 D. 742. 12. An entaU good inter heredes, but bad as to third parties, was formerly a bar to the execution of an entail valid in all respects, but it is now, under the Eutherfurd Act, bad as agaiust all parties and (semble) without declarator. — Cochrane v. BaUlie (Hyndshaw), 2 M'Q. 529 (1857); Aff. 17 D. 659; Dempsters. Dempster (Skibo), 3 M'Q. 62 (1857) ; Aff. See 17 ; also Heirs {Destination), II. Form op. 13. A conveyance by resignation of the dommiurn utile to the supe- rior does not bring it within the fetters of an entail of the superiority. — Heron v. Duke of Queensberry (Lochhouse), Cr. & St. 98 (1733) ; Aff. 14. An entailer having by a new deed reciting the previous entail disponed to a new series of heirs, without inserting the fetters, except by referring to them as in the former entail ; held that the second deed, being followed by infeftment, was a new settlement of the estate, and not containing the fetters, nor having been recorded, was void against creditors or a purchaser. — Paterson v. Bromfield (Eccles), 3 P. 50 (1786) ; Aff. M. 15618 ; Cuthbert v. Paterson (same entail), 3 P. 76 (1787) ; Aff. 15. The clerical omission of the words " in favour of and for new in- feftment," in a procuratory of resignation constituting an entail, is not fatal to the entail, the heir called having taken a charter on the procura- tory .— Munro v. Munro (PowUs), 3 "W. & S. 344 (1818) ; Aff. 4 S. 467. 16. An entail having reserved power to nominate heirs, the power may be exercised by the entail of another estate declaring that the heirs whom it calls shall be the heirs of the first-mentioned entail. — Stewart V. Porterfield (Porterfleld), 5 W. & S. 515 (1831) ; Aff. 8 S. 17. 17. A former entail being worked off by prescriptive possession on charter and sasine, held that the charter constituted a valid entail, although the fetters were not contained in the dispositive clause, but only in the quae quidem, and held that words contracted there were to Form o/.] ENTAIL. 115 be so read as to apply them to the heirs of the destination ia the dis- positive clause rather than to the heirs of the prior entail. — Vere v. Hope (CraigiehaU), 2 S. & M'L. 817 (1837) j Aif. 11 S. 520. See 25. 18. A strict tailzie contained power to revoke or alter ; a subsequent deed by the same maker referred to such a tailzie, but without stating its date, and introduced new heirs and new conditions, and declared that they should take under the conditions, &c., in the entail referred to. Held that the two deeds together constituted an entail of the lands, and the Court might order a deed to be prepared and executed by the heirs embodying the two. — Eraser v. Lord Lovat (Abertarff), 1 S. BeU, 129 (1842) ; Aff. 3 S. 14, and 1 D. 887. 19. A valid entail may be made by a procuratory of resignation, with general assignation of writs, granted by one uninfeft, and holding an unexecuted procuratory, and on such last-mentioned procuratory betag used for infeftment, the conditions of entail contained in the other may be engrossed in the sasiue. — Eenton v. Anstruther (Caiplie), 1 S. BeU, 129 (1842); 2 S. BeU, 214 (1843); Aff. 20. An entailer having, in exercise of a power to alter and revoke the entaU, executed a deed which altered, though not expressly revokiog it, the two together constitute the entaU, and if the latter is not recorded, the entail is void. — Earl of Mansfield v. Stewart (Logiealmond), 5 S. BeU, 139 (1846); Aff. 21. Lands may be held to be included in an entail, though not ex- pressly named, if it is clearly proved that at the time they were com- monly known under the general designation of the estate entailed, or were possessed as parts and pertiuents ; but without such proof they will not be held to be included, although contiguous. — Earl of Starr v. King (Cults), 5 S. BeU, 82 (1846) ; Aff. 6 D. 821. 22. A subsequent entail under which the lands were held being ma- teriaUy different from a prior one, and not having been registered, is void. — Inglis v. IngUs (HaUull), 2 Stu. H. L. 81 (1853) ; Aff. 23. A deed executed under a reserved power iu an entaU to alter or revoke, but merely striking out one of the substitutes called, need not be recorded iu the Eegister of Tailzies. — Norton v. Stirliug (Eenton), 2 M'Q. 205 (1855) ; Aff. 14 D. 944. 24. Trustees being directed to convey lands under aU the conditions, provisions, &c., of an existing entail, " so as to form a vaUd and effectual entaU according to the law of Scotland," but the model entail being afterwards found invaUd ; held that the entail to be executed was to be a good one, free from the defects which had avoided the model. — Graham V. Stewart (Lynedoch), 2 M'Q. 295 (1855) ; Aff 15 D. 558. See 104. 25. An obligation to make an entail, foUowed ia the same deed by a procuratory for resigning the lands in favour of the heirs named, and H ^ 116 ENTAIL. [^Description of Heirs lowid. under the conditions by reference of a prior entail, is invalid both as an entail and as a contract to make an entail, and the charter following containing the conditions at length is also invalid as an entail. Query, Whether the obligation, if it had not been followed by the attempt to perform it, would have fallen under the negative prescription. — Cochrane v. Baillie (Hyndshaw), 2 M'Q. 529 (1857) ; Aff. 17 D. 659. 26. A disposition of entail by a party uninfect, containing an assig- nation to an unexecuted procuratory, remains effectual, although the grantee subsequently makes up a title in fee simple on the procuratory, and is the original entail, not merely an obligation on the heirs to execute an entail. — Earl of Fife v. Duff (Carraldston), 4 M'Q. 469 (1863); Aff. 24 D. 936. See Deathbed, 16 — Deed, 26 — Peoving the Tenor, 3 — Trust, 22, 38. III. Description of Heirs Bound. 27. A tailzie made by procuratory in 1684, on which charter was granted in 1686, the tailzie not being recorded under the Act 1685, called first several series of male heirs, whom failing female heirs; then a prohibition against contracting debt was directed against the male heirs doing so, " in prejudice of the heirs female,'' it was followed by powers to provide jointures, and provisions for the succession of the eldest heir female without division, and for their husbands taking the name and arms, then by prohibitions against the heirs female contracting debts or doing deeds by which the lands might be evicted ; " and if they shall happen to contravene, they shall eo ipso lose their right to said lands for all time following, and it shall be lawful to the next heir of tailzie to pursue declarator thereon, and enter into pos- session free from the burden of said debts and deeds-; and in Kke manner they shall be declared to be of no effect, and null and void as against said estate, and the next heir may succeed to the same either as heir to the contravener or to the heir preceding who died last vested and seized in the lands, passing over the contravener." Held that the irritancy applied to heirs male, as weU as heirs female, and that the entail was effectual against contraction of debt by a male heir imme- diately succeeding the maker of the tailzie. — Falconar v. Mushet (Eic- carton), Eobert. 110 (1714); Eev. Craig's Crs. ». Craig's Crs., M. 15494. 28. Prohibitions directed against the heirs female of the fhst sub- stitute (herself a female) or " any other of the heirs male, and of tailzie before mentioned (except the heirs male of the said" first substitute), held to be effectual against the first substitute herself — Nairn v. Nairn (Strathord), Cr. & St. 192^(1 736) ; Eev. Elchies v. Tailzie, No. 5. 29. A tailzie inay be validly made which imposes the restrictions on Description of Heirs bound.] ENTAIL. 117 only one class of the heirs, called such as heirs female. — Maitland a. Forbes (Pitrichie), Cr. & St. 570 (1754) ; Aff. M. 14431. 30. The last substitute in the destination contained in a tailzie, pre- ceding the heirs whomsoever, may convey the estate by mortis causa deed, as if it were a fee simple. — Earl of Euglen v. Kennedy, 2 P. 49 (1760); Aff. 31. An entail contained a destination to a series of substitutes named, and their heirs, and imposed the fetters on the institute by name, and " the substitutes before mentioned and described by name," held that the heirs of the substitutes were equally bound. — Dabymple V. Hunter, 6 P. 807 (1784) ; Aff. 32. Mutual tailzies being made by A. and B., A.'s declaring that it was made on condition that B. should execute a tailzie of his estate accord- ing to the same course of succession, but that if this were not done, any heir of tailzie of A. not succeeding to the estate of B. should be free from the fetters of the tailzie of A., and B.'s tailzie being not identical in the ultimate destination with A.'s, the latter is void at the instance of an heir in possession, even though he has also succeeded to B.'s estate under the first branch of the destination. — Eocheid v. Eanloch (Inverleith), 3 P. 152 (1790) ; Eev. 33. Though the fetters are introduced in the middle of the destina- tion, and refer to " the heirs before mentioned," they are valid against the heirs after mentioned. — Ker v. Innes (Eoxburgh), 5 P. 362 (1810) ; Aff. M. Tailzie Ap. 1, No. 13. 34. A tailzie having, after granting the lands and setting forth the order of succession, declared that any of such heirs succeeding to another estate subject to a name and arms provision should be obliged to denude of the estate now granted in favour of the next heir under the " conditions, &c., contaiued in this present right, and with and under this provision, &c.," and then setting forth proper prohibitory irritant and resolutive clauses, held that these appUed to the whole heirs called, and not merely to the heirs in whose favour a preceding heir might denude. — Monro v. Monro (Powlis), 3 "W. & S. 344 (1828) ; Aff. 4 S. 467. 35. A tailzie is not void on account of some of the substitutions being ultra vires, but may be sustained as to the other prior or posterior substitutions. — Stewart v. Porterfield (Porterfield), 5 W. & S. 515 (1831); Aff 8 S. 17. 36. An entail, though it does not exclude heirs portioners, is effectual until the succession actually opens to such heirs. Special case in which an entail, comprehending two estates, was held effectual after they had passed to different series of heirs, and the restrictions upon heirs of tailzie were held applicable to heirs of the body of the entailer's 118 ENTAIL. daughters after failure of his heirs male. — Mure v. Muie (Livingstone), 3 S. & M'L. 237 (1838) ; Aff. 15 S. 581. 37. The heir whatsoever in the concluding destination of an entail is not an heir of entail, and has no title to sue the last heir of tailzie in possession for contravening, as he is, iu fact, owner iu fee simple. — ColviUei). ColviUe (Cromhie), 4 S. BeU 248 (1845) ; Aff. 5 D. 861. 38. A declarator of irritancy to the effect of resolving the rights of the descendants of a contravener cannot be brought after his death. Observations on Bargany case. — Maxwell v. MaxweU (Merksworth), 5 S. BeU 165 (1846) ; Aff. 6 D. 255. 39. A power to the heirs of entail " so. often as their apparent or presumptive heics are females, to settle the estate upon a younger daughter in preference to an elder daughter,'' enables a daughter suc- ceeding to settle the estate upon an elder sister and her heirs, either by deed mortis causa or inter vivos. — Maitia v. Kelso (Dankeith), 2 M'Q. 556 (1857) ; Aff. 15 D. 950. See Deed, 19, 26 — Heirs (Description of). IV. Institute. 40. The prohibitory, &c., clauses of a strict entail being directed agaiust the " heirs of entail," they do not apply to the iustitute, who is "fiar, or disponee." — Edmonstone v. Edmonstone (Duntreath) 2 P. 255 (1771) ; Eev. M. 4409. 41. The fetters being laid only on the heirs of tailzie, and the heirs succeeding to the lands, the institute is unaffected by them, although he recognises the entail as a destination. A decree of declarator of freedom from the fetters alleged to have been obtained by coUusion, not insisted in as res Judicata. — Marchioness of Titchfield v. Gordon (Gordonston) 4 P. 157 (1800) ; Aff. M. 15467. 42. Under a power to nominate heirs in an entail, a nomination was made of A., whom failing, of B., &c., " as heirs of tailzie,'' but by a dispositive clause following, the estate was conveyed in liferent to the father of A., and in fee to A., &c. ; held (on remit) that A. was institute and fcee from the fetters imposed on heirs. — Menzies v. Beresford (Culdares) 4 P. 242 (1801) ; and 5 Pat. 522 (1811) ; Aff. 43. The prohibitory and irritant clauses being duly directed against the institute by name, and the heirs, and the resolutive applying to " the person or persons heirs of tailzie aforesaid," held that it applied to the institute. — Syme v. Dickson (BlairhaU) 4 P. 471 (1803) ; M. 15473. 44. An entailer having settled personal and real estate, unentailed, on the institute, with directions that the proceeds should be laid out in land to be entailed, the institute is liable to account to the substitutes for aU sums uplifted and not so applied within forty years before the Institute.] ENTAIL. 119 date of an action 'brouglit to that efiect. Eemit to consider whether the claim of the substitute as to sums received before is cut off by the negative prescription. — Eocheid v. Kinloch (Inverleith), 5 P. 35 (1805) ; Eem. F. C. 27th May 1800 and 1st March 1808. 45. Held, on a review of the whole deed, that the expression " my said heirs or members of tailzie," did not apply to the institute. Ob- servations on Duntreath case. — Steel v. Steel (Baldastard), 6 P. 322 ; 5 Dow 72 (1817) ; Alf. F. C. 12th May 1814. 46. The fetters of an entail being imposed on the institute and the heirs substitute, and the institute predeceasing the entailer, the sub- stitute taking by virtue of the conveyance in the deed is bound by the whole conditions and restrictions of the entail. — Mackenzie v. Mac- kenzie, 1 S. Ap. 150 (1622) ; Aif. F. C. 24th Nov. 1818. See Titles. 47. Where the irritant and resolutive clauses are run together and the institute is referred to by name in the irritant clause, but the resolutive is directed against " each and every heir or person so con- travening," &c., the talzie is vaUd. ^ — ^ Douglas v. Glassford (Dougal- ston), 1 W. & S. 323 (1825) ; Aff. 2 S. 487. 48. Trustees being directed to lay out the " residue of the trust funds, interest and proceeds thereof," in the purchase of lands to be entailed, the heirs to be called under the entail are entitled to the interest of the residue after deduction of costs of management from the period of twelve months after the testator's death until the lands are bought, —^art of Stair v. Sari of Stair's Trs., 2 W. ^ S. 414 ^ 614 ; 1 Bligh, N.S. 662 ; 1 Dow ^ Clark, 44 (1827) ; R&o. 5 S. 476. 49. Some of the prohibitions ia a tailzie being directed against the institute by name and the other heirs of tailzie, others, and the resolu- tive and irritant clauses, only against the " said heirs of tailzie above mentioned," though the whole was prefixed by a declaration that the conveyance was with and under the burdens, conditions, restrictions, &c., and clauses irritant after expressed, which were declared to be binding not only on the institute and substitutes but also on the entailer's heirs whatsoever; held that the entail was nevertheless invaUd as against the institute. — Morehead v. Morehead (Herbertshire), 1 S. & M'L. 29 (1835); Eev. 11 S. 863. 50. When the prohibitory and resolutive clauses are directed against the institute by name " and other heirs of taUlie," but the irritant clause is directed only against " the said heirs of taiUie," the institute is not restrained from seUing or burdening. — Lord EUbank v. Murray (Simprim), 1 S. & M'L. 1 (1835) ; Aff. 11 S. 858. 51. An entail disposing to the entailer in liferent and his eldest son in fee, but applying the fetters only to " the heirs descending of my body, or any of the other heirs of tailzie before mentioned," is void as 120 ENTAIL. [Devolution. against the institute. — Macgregor v. Brown (Lanrick), 3 S. & M'L. 84 (1838); AS. 15 S. 837. 52. When in an entail the lands are disponed fiist to one in liferent, the liferenter is not the iastitute, hut the first flar is, although not horn at the time, nor till after the entailer's death. The institute is not harred from challengiag the entail as void from defect of the fetters as against himself, hy the fact that he has made up his title as heir of entail. — Logan V. Logan (Fingalton), M'L. & E. 790 (1839); Aff. 15 S. 291. 53. The resolutive and irritant clauses heiug introduced with the words " and with and under this irritancy," and the resolutive words which immediately followed being expressly directed against the insti- tute as well as the heirs, hut the suhsequent irritancy only against heirs, the institute is not fettered. — Marquis of Breadalbane v. Campbell (Glencrutten), 2 Eobin. 189 (1841) ; Aff. 1 D. 81. 54. An irritant clause, referring to the institute as well as the heirs, but declaring that the acts specified shaU be of no force " and be ineffectual and unavailable against the other heirs called to succeed," is valid as regards the institute as well as the substitutes. There is no ground for the proposition that there may be a valid entail without a prohibitory clause at aU. — Lindsay v. Earl of Aboyne (Aboyne), 3 S. Bell, 254 (1844) ; Aff. 4 D. 843 ; Adam v. Farquharson (Finzean), 3 S. Bell, 295 (1844) ; Aff 2 D. 1162. 55. An entail with prohibitory, irritant, and resolutive clauses, but of which the irritant clause is defective as against the institute, is effectual to prevent the institute from gratuitously altering the order of succession. — Carrick v. Buchanan, 1 S. BeU, 34S; 3 S. Bell, 343 (1844) ; Aff. V. Devolution. 56. A clause providing that in case any heir of entail should succeed to another estate, he and the heirs male of his body so succeeding should be obliged to denude in favour of the next heir, does not exclude all the heirs male of the body of the heir so succeeding, but only his eldest son. — Leslie v. Leslie (Balquhain), Or. & St. 324 (1742) ; Eev. 57. In a tailzie with a clause of devolution it is incompetent for the heir in possession to grant provisions (even if otherwise valid) to younger children, to take effect only in the event of the devolution coming into operation. Other special questions occurred in the same case respecting the devolution of bonds of provision as. altered by a general settlement. — Earl of Cassilis v. Hamilton (Eiccarton), Cr. & St. 381 (1745) ; Aff. Elchies v. Provision to Heirs, No. 6. 58. A clause in a tailzie providing that whenever the heirs " succeed- ing to and possessing my estate shall also succeed to" another estate, " then the right of my estate in their favours shall cease, and the same Devolution.] ENTAIL. 121 shall fall to the next heir of entail appointed to succeed," carries off the estate to the next heir as soon as" the succession opens to a party abeady in possession of the other estate. — Ross v. Lockhart (Bahia- gowan and CraigmiUer), Cr. & St. 610 (1756) ; Aff. 59. Under a clause of devolution the estate must go strictly as direct- ed in the tailzie, though a nearer heir may exist than the tailzie calls. — Lawrie v. Macghie (Eedcastle and Skeldon), 2 P. 309 (1773); Aff. 60. An entail providing that on an heir of entail succeeding to an- other estate, his right should cease from the next term, " or in his option next after he shall have a second lawful son attained to the age of fourteen years, during vp^hich space I dispense with the said heir of entail using my surname and coat armorial," entitles the heir in possession, on succeeding to the other estate, to hold the entailed lands during his life, if he has not a second son born, or if he has, till the son attains fourteen. — Hay v. Marquis of Tweeddale (Linplum), 2 P. 322 (1773) ; Aff. M. 15425. 61. Under a clause of devolution in the event of the heir succeeding to another estate, the heir already in possession of the other estate is bound to denude of the entailed estate on the succession opening to him. An heir taking under the clause of devolution is bound by the fetters. In Court of Session, 3 P. 690. — Henderson v. Henderson, (EarlshaU and FordeU), 3 P. 686 (1791) ; Aff. M. 4215. 62. An heir of entail in possession repudiated the succession before making up titles (the entail not requiring him to make them up), to the effect that his brother, the next heir, might take it, reserving the right of his own heirs on failure of the heirs of the body of his brother ; and the brother brought a declarator of his title thereunder, and obtained decree in absence, and possessed on charter and sasine for thirty-eight years, and then executed a settlement of the estate upon himself and the heirs of his body, whom failing, the heirs of the body of the heir who had repudiated. The next heir, several years after, brought a declarator of contravention agaiust both brothers, and the heirs of their bodies, to which was pleaded a title to exclude in virtue of the positive prescrip- tion. Held that in the circumstances the pursuer had no title to sue, and the validity of the title to exclude was therefore not considered. (Per Lord Eldon) If the case had been res integra it would have been difficult to hold that the repudiation was not a contravention, but the law of Scotland is now settled otherwise. — Fullerton v. Hamilton (Bargany); 4 P. 175 (1801); Alt. M. 11171. 63. A party in right of two entailed estates, the conditions of which are inconsistent, may, in repudiating the one, reserve right to take it up at any future time, and even without such reservation a subsequent 122 BNTAIL. [Eevoeation and Alterations. heir miglit, on the right opening to him, elect to take the estate in spite of the repudiation, and without reducing it, until 'barred hy pre- scription. See prior decision in the same case, 1 Cr. & St. 237, and 1 S. Ap. 265. — Fullerton v. Hamilton (Bargany), 1 W. & S. 410 and Apx. (1825); AS. 2 S. 698. 64. An heir of entail, in which there is a clause of devolution, may, before the clause takes effect, sell the estate ia Tirtue of a defect in the fetters against seUing. — Lord Montgomerie v. Earl of EgUnton, 6 S. Bell, 136 (1847) ; Aff. VI. Ebvocation and Alterations. 65. A tailzie made on occasion of a marriage gives right even to a gratuitous substitute, not being an heir of the marriage, to apply to have it exhibited and registered in the Books of Council and Session, and it cannot be set aside or altered by the maker even as regards such substitutes. — Schaw v. Houston (Greenock), Eobert. 203 (1717) ; Aff. M. 15372. 66. A tailzie not made for onerous cause may, while remainiag per- sonal, be revoked by the maker and institute, although not containing a power to revoke. — Scott v. Scott (Harden), Eobert. 226 (1718) ; Aff. M. 15569. 67. A gratuitous deed of entail undelivered, containing power to affect or burden the lands, may be revoked by the maker. — Heron v. Heron (Eargaly), 2 P. 187 (1770) ; Eev. 68. An entail recorded and feudalised, having been executed in im- plement of an onerous obligation, cannot be revoked by the maker with consent of the institute and of the parties to the obligation. — Mac- cuUoch V. Macculloeh (Barholm), 6 P. 785 (1772) ; Aff. M. 15579, and 1 Hailes, 432. 69. An entail in favour of a stranger as iustitute, redeemable on pay- ment of a stated sum, and under proviso that the iustitute should pay off certain mortgages, held to be capable of being revoked by the maker and the institute. — Earl of Moray «. Eoss, 6 P. 801 (1744); Aff. Elchies, Tailzie, No. 22. 70. An entail containing power to revoke, is not revoked by a subse- quent trust-deed executed by the entailer of all his property, with express exclusion of his entailed estate, and substituting the trustees, of whom the institute was one, for himself in mercantile companies of which he was a partner, and conferring on them a power to contract debt. — Douglas V. Glassford (Dougalston), 1 W. & S. 323 (1825) ; Aff. 2 S. 487. 71. An entail being executed in 1776, and another contravening it in 1809, which was challenged on the ground of fraud, but sustained. Fetters.] ENTAIL. 123 this last annihilates the prior entail. — Dickson v. Cuninghame (Kil- bucho), 5 W. & S. 657 (1831) ; Aff. 7 S. 503. See Deathbed, 20 — Heir (Bevoeation). VII. Fettees. 1. By Reference. 72. A conveyance " under the conditions, provisions, and limitations contained in " a tailzie of other lands is effectual to prevent gratuitous alienation by any of the heirs. — Don v. Don (Eutherford), Kobert. 76 (1713) ; Aff. M. 15591. 73. Lands not included in an original deed of entail, but disponed by a subsequent deed to the same series of heirs, and containing the fetters by reference only, are not effectually entailed although included in the subsequent infeftments of the whole lands. — Lindsay v. Earl of Aboyne (Drumniachie), 3 S. Bell, 254 (1844) ; Aff. 4 D. 843. 74. An entailer having by subsequent deed revoked the whole desti- nation, with the exception of one of the substitutes, and made him the institute, with a new series of substitutions, but only referred to the first deed for the fetters, and assigned the precept and procuratory it contained to the new institute ; held that the new deed was virtually a new entail, and was bad as containing fetters by reference only, that the heirs taking under it were not bound to render it valid, and that the assignation of precept and procuratory by the granter himself was incompetent. — GanuneU v. Cathcart (Countesswells), 1 M'Q. 362 ; 2 Stu. H. L. 32 (1852) j Aff. 12 D. 19. y^ See rOKPEITUEE, 'Sfl. 2. Validity of Fetters. • 75. A prohibition duly fenced against contracting debt, does not in- validate a sale, where there is no special, prohibition against seUing. ■ — Eichart v. Hopetoun (Keith), Cr. & St. 143 (1734) ; Aff. 76. Prohibitions duly fenced against altering the order of succession, contracting debts, or doing any fact or deed that may lead to eviction, are not sufficient to prevent a sale where it is not expressly prohibited. —Davidson v. Sinclair (Carlourie), Cr. & St. 459 (1750) ; Aff. M. 15382. 77. A defect in the resolutive clause as regards contraction of debt, renders the estate liable for debt. — Forbes v. Skene (Pitrichie), Cr. & St. 628 (1757) ; Aff. 78. Question undetermined, whether an entail completed by infeft- ment prior to the Act 1685, but not recorded under that Act, is valid ; but the want of a resolutive -clause in any case held fatal Opinion, per Lord Hardwicke, that an heir next in succession to one contraven- ing, and evicted under such a defect, has good action against the con- 124: ENTAIL. [Fetters. travener and his personal representatives, to purge the estate. — Hepburn v. Congalton (Humhie), 2 P. 17 (1758); AS. M. 15507. 79. A prohibition against doing any fact or deed in prejudice of the other heirs, their right of succession, is not effectual against a sale of the estate.— Young v. Nisbet (Dirleton), 2 P. 98 (1765); Aff. M. 15516. 80. An entail was directed by private act to be made in the same terms as a former entaU. In both, the prohibitory and irritant clauses were good, but the resolutive clause, after resolving the right of all heirs who might contravene and incur the said clauses irritant, or any of them, proceeded to enumerate the particular contraventions, and omitted sales. Held that, though the general clause would have been sufficient, the defect in enumeration was fatal. — Bruce v. Bruce (TUly- coultry), 4 P. 231 (1801); Aff. M. 15539. 81. The omission to mention sales in a resolutive clause is not cured by the mention of " any other deed of omission or commission, where- by the lands may be evicted or affected in manner foresaid." — Mon- creiffw. Cuniugham (Bonniugton), 4 P. 652 (1804); Aff. 82. A prohibition against doing anything to the hurt of these presents, and of the foresaid tailzie and succession, is effectual against altering the order of succession. — Ker v. Innes (Eoxburgh), 5 P. 362 (1810); Aff. M. Tailzie, Ap. 1 No. 13. 83. An entail being held bad as against selling, and the lands being accordingly sold, remit to consider whether there was any obligation on the heir selling to reinvest the price. — Denham v. Lockhart (Westshiels), 6 P. 85 (1815); Eem. P. C. 11th June 1811. 84. An irritancy directed ordy against " debts and deeds whereby the lands might be burdened," but not expressly mentioning sales, which were mentioned in the prohibitory clause, does not apply to sales. — Barclay v. Adam (Blair-Adam), 1 S. Ap. 24; 3 Bligh, 275 (1821) ; Aff 85. It is sufficient if the irritancy be declared against deeds or debts done or contracted as against the other heirs of tailzie, without being declared in themselves null and void. — Munro v. Munro (Fowlis), 3 W. & S. 344 (1828) ; Aff. 4 S. 467. 86. An entail containing a prohibition against selling, but not ex- pressly fenced by irritant and resolutive clauses (Ascog) applying to sale, or fenced by an irritant but not by a resolutive clause (TiUycoultry), is not effectual to prevent a sale, and does not create an obligation for reinvestment of the price for behoof of the substitutes, nor give them any claim for damages against the heir selling. (Per Lord Eldon) " I thiak the doctrine of non-implication, as applied to Scotch entails, has gone a great deal too far, but it must now be supported." — Fetters.] ENTAIL. 125 Stewart K.Fullarton (Ascog), 4 W. & S. 196 (1830) ; Alt. 5 S. 418; Bruce V. Bruce (Tillycoultry), 4 W. & S. 240 (1830) ; Alt. 5 S. 822. See 213. 87. A tailzie defective in, the fetters imposed upon one contravention was not to be held void as to the others. The prohibition against contracting debt being defective, allowed bond fide debt to be con- tracted, but did not allow the order of succession to be changed by means of collusive and simulate debt. — Cathcart v. Cathcart (Carleton), 5 W. & S. 315 (1831) ; Aff. 8 S. 497. 88. The words which would have been the nominative to the verb in the irritant clause (" aU such acts, deeds, and debts") being omitted in extending the deed, they cannot be supplied by the Court, as although it may be clear what they ought to be, it is not certain that the entailer would have made them so. — Sharpe v. Sharpe (Hoddam), 1 S. & M'L. 594 (1835) ; Eev. 10 S. 747. This case explained, House of Lords, 8. See Deed, 19, 26. 89. Sales are not struck at by a declaration that the lands shall not be affected, or liable to be adjudged or evicted for or by the debts or deeds of the institute or heirs, or by their acts of omission or commis- sion. — Marquis of Breadalbane v. Campbell (Glencrutten), 2 Eobin. 109 (1841) ; Aff. 1 D. 81. 90. Where an entail after a full prohibitory clause contained an irritant clause " in case the iastitute, or any of the heirs of tailzie, shall contravene or fail in performing any part of the premises, particularly by neglecting to assume the sirname,'' and proceeded to enumerate other contraventions, but without mentioning sales, and concluded, " or shall contravene or fail in any part of the premises ;" held that sales, not being expressly mentioned, were not invalidated. — Eennie v. Home (Ballihesk), 3 S. & M'L. 142 (1848) ; Eev. 15 S. 372. 91. Question, whether an entail of which the fetters are contained in the dispositive clause is invalid if they are not verbatim repeated in the procuratory and precept, except by the general words, " the conditions, provisions, restrictions, declarations, and reservations before mentioned," without addition of "clauses irritant and resolutive." — Eennie v. Home (Balliliesk), 3 S. & M'L. 142 (1848) ; 5 S. 376. See 101. 92. A prohibitory clause declaring " that it shall not be allowable to sell off or dispose upon any part of the lands, nor to contract debt, or do any other deed whereby the lands may be adjudged or evicted from the succeeding members of entail, or their hopes of succession thereto in any measure evaded," held ineffectual against altering the order of succes- sion ; and the irritant clause declaring, " and if they do in the contrary, all such debts and deeds shall be intrinsically void and null," held not to apply to sales. Observed that Maclaine v. Maclaine (Lochbuy), 23d June 1837, F.C. is not law. Observed that such cases are ruled 126 ENTAIL. [Fetters. only by precedents, and the Act 1685 gives no rule for them. ^ — Lang V. Lang (Overton), M'L. & E. 871 (1839) ; AS. 1 D. 98. But see 104. 93. A prohibition against selling, contracting debt, or doing " any other fact or deed in prejudice of the said tailzie and of the persons above named, and their foresaids ;" and a resolutive clause, " if any of the said heirs shall fail herein, or do anything contrair to this my destination and appointment," and an irritant clause " of aU disposi- tions and deeds whatsomever made or done contrair to the said pro- vision and destination ;" held effectual against' altering the order of succession. Question, whether a prohibition against altering the order of succession needs to be fenced. — Monypenny v. Campbell (Strath- brock), M'L. & E. 898 (1839) ; Aff. 94. Though fetters are not to be imposed by implication, the inten- tion of the entailer, gathered from necessary intendment, is admissible respecting the directions as to the title under which the heir is to pos- sess. (Per Lord Brougham.) — Graham v. Bontine (Gartmore), 1 Eobin. 395 (1840); 15 S. 711. 95. A prohibitive clause, inter alia, prohibited wadsetting or feuing ; the irritant clause was applied to " all such deeds of contravention whether altering the course of succession, selling, alienating, or burden- ing the lands, and all acts done contrary to the above-written condi- tions and provisions shall be void and null" Held that wadsetting and feuing were effectually irritated. — Anstruther v. Amstruther (Caiplie), 2 S. Bell, 242 (1843) ; Aff 3 D. 142. 96. When the prohibitory clause expressly mentioned sales, but the irritant clause only referred to all the debts and deeds contracted, made, or granted, in contravention of the entail, and the conditions, provisions, limitations, and restrictions therein contained ; held that sales were effectually prohibited. Observed that a sale by act only, and rei interventu, need not be provided against in an entail, and would not be enforced by adjudication in implement in such case. Observations on the language and interpretation of entails. — Lumsden V. Lumsden (Auchendoir), 2 S. BeU, 104 (1843) ; Aff. 3 D. 136. 97. A resolutive clause directed merely against " the persons so con- travening," and " such contravention" is sufficient. An irritant clause directed against " such acts and deeds," — " done, acted, committed or granted," is effectual against sales, they having been included expressly in the prohibitive clause. — Montgomerie v. Earl of Eglinton (Coils- field), 2 S. Bell, 149 (1843) ; Aff. 4 D. 425. 98. There being a prohibition against seUing, ahenating, or dispos- ing, followed by an irritant clause against alienating or disposing ; held that it is effectual against sales. A prohibition against doing any other fact or deed, followed by an irritant clause against doing any other Fetters.] ENTAIL. 127 deed ; held that " deed" includes the act of selling. A declaration that the irritancy is so that the lands shall he nowise affected or burdened therewith in prejudice of the succeeding heirs, does- not restrict the irritancy to burdens only. — Murray v. Murray (Cockspow), 3 S. Bell, 100 (1844) J Aff. 4D. 803. 99. A prohibition " to burden or affect the lands with debts," &c., is effectual against the contracting of debts. — Adam v. Farquharson (Finzean), 3 S. Bell, 295 (1844); Aff. 2 D. 1162. 100. An irritant clause declaring that " upon every contravention not only the estate shall not be burdened or liable to the debts, deeds, crimes and acts of the heirs so contravening, but also all debts, deeds, or acts contracted, done, or committed contrary to the above conditions and restrictions, shall be absolutely null ;" and a resolutive clause de- claring that " in case any of the heirs shall contravene any of the before written conditions, provisions, limitations, or restrictions, that is, shall fail or neglect to perform the haUl conditions and provisions above set down, or any of them, or any after restrictions that may be added by me, the person so contravening, by failing to obey the said conditions, or by acting contrary to the above limitations and restric- tions, shall forfeit." Held valid. — Adam v. Farquharson (Fiozean), 3 S. Ben, 295 (1844) ; Aff. 2 D. 1162. 101. In an entail after a full prohibitory clause the resolutive de- claredy that if the heirs, &c., " shall at any time faU herein, or do any- thing contrary to this my destination and appointment, then the person or persons so faOing and doing on the contrary hereof shall amit their right ;" and the irritant clause declared that " all dispositions, and other deeds whatsomever made or done contrary to the said provision and destination, with aU. that shall follow thereon, shall be ipso facto void." Held that these general clauses were sufficient. The prohibitions, &c., need not be repeated in the procuratory and precept in the same deed, if generally referred to. ^- Earl of Buchan v. Erskine, 4 S. Bell, 22 (1845) ; Aff. 4 D. 1430, 1435. 102. After a full prohibitory clause, the resolutive clause declared that if any heir " shall contravene the before-written provisions, conditions, restrictions, and Kmitations, that is, shall fail to obey, fulfil, or perform the said conditions and provisions, or any one of them, or shall act con- trary thereto, he shall amit," &c. ; and the irritant clause declared that "upon every contravention by failing to perform aU. and each of the conditions, or acting contrary to all or any of the restrictions, not only the said lands shall not be burdened and Uable to any of the debts and deeds, acts and crimes, but also all such debts, deeds, and acts contracted, granted, done, or committed contrary to these conditions and restrictions, shall be of no force, and shall be unavail- 128 ENTAIL. {Fetters. able against the other heirs of taikie." Held that sales ■were effectually- prohibited. — Dingwall v. Dingwall (Eainniestown), 4 S. Bell 149 (1845) ; Aff. 4 D. 816. 103. A trust-deed directing the trustees to conTey an estate in terms of a prior unrecorded entail, does not give the heirs substitute any title to challenge a sale made by the first substitute taking under the conveyance by the truster. — Earl of Mansfield v. Stewart (Logie- almond), 5 S. BeU, 139 (1846) ; Aff. See 24. ° 104. An entail with specific prohibitions not to alienate or burden, nor to contract debts, or to alter the course of succession by any fact or deed, omission or commission, with irritant clause agaiust " aU such facts and deeds, omissions and commissions," and resolutive clause applying to altering the order of succession or violating any of the provisions and conditions before mentioned. Held ineffectual against sale. Observed that precedents in the construction of entails are of no authority unless the identical words are found in both. Observed that the language in entails is to be construed in its natural and grammatical meaning. — Murray v. Graham (Balgowan), 6 S. Bell 441 (1849) ; Aff. 10 D. 380. 105. A prohibition to " contract debts upon the lands," followed by an irritancy of " disposing upon or affecting the said lands whereby they may be evicted and adjudged," is effectual agaiast personal debts being made real. Observed that an enumeration of prohibited acts does not impair a general prohibition preceding, unless the entailer appears to have undertaken to enumerate all the acts. — Dewar v. Cleghom (Feddal), 7 S. Bell, 32 (1850) ; Aff. 8 D. 90. Bogle v. Cochrane (Murdostown), 7 S. BeU, 65 (1850) ; Aff. 11 D. 908. 106. Under a defect in the prohibitions against selling, it was in- competent to adjudge for debt. — Bogle v. Cochrane (Murdostown), 7 S. Bell, 65 (1850) ; Aff 11 D. 908. 107. After a full prohibitory clause against selliug, burdening, or altering the succession, an irritant clause, " if the heirs shall contravene or do in the contrary or any point of the premises, then all such debts, facts, and deeds are declared to be void," would be sufficient ; but being followed by the words, " in so far as the same might infer any actions, personal or real, agaiast the next heir or the lands," it is iueffectual against sales. — Lord Wharncliffe v. Naime (DrumkUbo), 7 S. Bell, 132 (1850) ; Aff. 12 D. 1. 108. An entail prohibiting the altering the order of succession, selling, burdening, contracting debts, or committing any other deed, civil or criminal, by which the lands may be adjudged evicted or for- feited, followed by an irritant clause " in case the said heirs shall do or commit any such deeds or contract such debts," is invalid against Powers to Feu, ^c] ENTAIL. 129 selling or altering the order of succession. — OgUvie v. Earl of Airlie (Auchterhouse), 2 M'Q. 260 (1855) ; Aff. 15 D. 252. 109. The general rule in construing a deed of entail is, that the words are to have their natural meaniag, but if equally capable of two meanings, that is to be adopted which is in favour of freedom from the fetters. (Per Lords St Leonards and Cranworth.) — Ogilvie v. Earl of Airlie (Auchterhouse), 2 M'Q. 260 (1855) ; 15 D. 252. 110. An entail which, after a full prohibitory clause, contains an irritant clause, which omits one of the acts prohibited, but irritates " aU other crimes, treasons, deeds, and acts done in the contrary of this present taUlie" (Kintore), or " any one of the several particulars above mentioned" (Haulkerton), is valid, on the principle that the general words include by reference aU the prohibitions though omitted in the special enumeration. — Earl of Kintore v. Lord Invermy, 4 M'Q. 520 (1863) ; Aif. 2 D. 1105. VIII. PowEES TO Eeu and Lease, and Leases and Feus under. 111. A power to feu without diminution of rental does not warrant a feu to the actual tenant of the lands reserving a feu-duty not less indeed than the existing rental, but where a further payment was made by the tenant as a consideration for obtaining the feu. The vassal cannot, in a reduction of the feu-charter in such a case, object that if it were not within the power of the grantor it would import a contravention involviag forfeiture of the estate by the heir of entail pursuing the reduction. Prescription on the charter in such a case commences to run, not from the date of the charter, but from the expiry of the lease which the vassal had held. — Duke of Eoxburghe V. Wauchope, Cr. & St. 126 (1734) ; Eev. in part. 112. In a strict entail a reserved power to grant feus or long tacks of any parts or portions of the lands does not authorise a feu of whole farms, or of the mansion-house and grounds. An heir of entail in possession cannot sell growing timber unfit for cutting, nor even such as is fit if the sale is only to take effect after his death. — Lord Cath- cart V. Shaw (Greenock), Cr. & St. 618 (1756) ; Aff. M. 15399. 113. An entail containing no prohibition against leasing, but in the irritant clause authoiisiug leases for fifteen years and without diminu- tion of rental, otherwise such tacks to be void and import a contraven- tion, does not prevent the grant of a lease for nineteen years ; and a tack granted for niaeteen years if the lessor should Uve so long, and if not, then for as long as the entail authorised, is vahd for nineteen years, though the lessor predecease. — Carre v. Cairns (Cavers), 2 P. 343 (1774) ; Aff. M. 15523. 114. Leases for four nineteens granted to the law agent of the heir 130 ENTAIL. [Pmoers to Feu, ^e. of entail, under a power in the tailzie to grant leases of any part of the lands, are valid, but not as regards the mansion-house, and a lease in reversion is not covered by the power. (Bee explanation in 2 Dow, 113.) — Orme v. LesUe (Balquhain); 2 P. 533 (1780) ; Aff. M. 15530. 115. When a tailzie Hmits the power of leasing to nineteen years, a new lease granted to the tenant in possession, before the expiry of an existing lease, to run for nineteen years from the expiry, is not binding on a succeeding heir of entail for more than nineteen years from the date of granting the lease. — Kerr v. Bedhead (Chatto), 3 P. 309 (1794) ; Rev. BeU Ca. 202. 116. An entail contained a power to grant feus of such parts of the estate as the heir might deem fitting, without diminution of rental. Held, after remit, that feus of the whole estate, with backbond binding the vassal to execute an entail as the superior might direct, were not within the power, and were bad as an alienation. A feu of the man- sion-house and grounds was also bad. — Ker v. Ker (Eoxburgh), 5 P. 609 and 768; 2 Dow, 149 (1812-13) ; Affi M. Tailzie, Ap. No. 18. 117. Under a strict entail, containing a power to grant leases during the lifetime of the granter or grantee, a lease for ninety-seven years is reducible after the granter's death. — Duke of Queensberry's Trustees V. Earl of Wemyss, 5 P. 758 ; 2 Dow, 91 ; Aff. M. Tailzies, Ap. No. 15 ; Henderson v. Malcolm, 2 Dow, 285 (1814). 118. An entail (Neidpath) containing a prohibition to alienate, with a power to grant leases for the lifetime of the heir or the receiver, the same being granted without evident diminution of the rental, renders invalid a lease granted for fifty-seven years (Harestanes), or for any period with a grassum, and a lease granted on the renunciation of a former lease for which a grassum had been paid, is also invalid (Eds- toun). — Montgomery v. Earl of Wemyss (and others) (Queensbeny leases), 6 P. 465, 482, 489, 516, 507; 5 Dow, 293; 1 BUgh, 339 (1820); Aff. F.C. 17th November 1815. 119. An entail (Queensberry) containing a prohibition to dispone, biit not to alienate, with a power to grant leases not for longer spaces than the granter's lifetime, or nineteen years, and that without diminu- tion of the rental, at the least for the just avail for the time, renders in- valid a lease granted on renunciation of a former lease for which a grassum had been paid. — Duke of Buccleuch v. Hyslop, 6 P. 520 ; 5 Dow, 293 ; 1 BUgh, 339 (1820) ; Eev. E.G. 7th March 1816, 5th February 1818. 120. An entail containing a prohibition to set tacks for longer than nineteen years, and without diminution of the rental, and not taking grassums, but such reasonable rents as can be got therefor, does not prevent an heir in possession from taking renunciations of unexpired Poivem to Feu, ^c] ENTAIL. 131 leases, and granting them anew, either at the same or a higher rent, in all cases in which the original leases would have endured till the date of the summons by the next heir challenging them. Eemit to consider whether in other cases the rents for which the new leases were granted were reasonable or not. — Marquis of Queensberry v. Montgomery (Tin- wald), 6 P. 552 (1820) ; Aff. E.G. 17th November 1815. 121. A lease at an under rent granted to a trustee, in order to make a provision for another, is a violation of a power of leasing without evident diminution of rental. Question, Whether receipt of the diminished rents by the successor homologates the lease t — Duke of Hamilton?;. Esten, 6 P. 644; 2 BHgh, 196 (1820); Eev. 122. Eunds being given to trustees to be laid out in lands, which are to be entailed, without any direction as to powers of leasing, and the entail executed containing a prohibition against leasing without diminu- tion of rental, held that the prohibition was valid, and that a lease for 1000 years, with a grassum, fell under the prohibition. ^ Turner v. Turner (TurnerhaU), 1 Dow, 423 (1813) ; Aff. M. Tailzie, Ap. No. 16. 123. In a tailzie the word "dispone" is equivalent to alienate, and an irritant clause directed against dispositions includes an irritancy of alienations, and leases of seventy-seven years with a grassum are such alienations. — Elliott v. Pott (Stobbs), 1 S. Ap. 16; 3 BKgh, 134 (1821) ; Eev. E.G. 10th March 1814. 124. In a strict entail a power to set tacks for such time as the heirs shall think fit, provided it is not at a rent lower than the rate set forth in the tailzie, authorises a lease for 999 years at such rent, with a large grassum. — Earl of Elgin v. Wellwood (Garvoch), 1 S. Ap. 44 (1821) ; Aff. 125. An irritancy incurred by setting tacks with grassums cannot be purged so as to validate the tacks after the contravener's death by converting the grassums into annuities. — Montgomerie v. Duke of Buccleuch, 1 S. Ap. 59 (and Hyslop v. the same, p. 64), 6 P. 819 (1821); Aif. E.G. 6th July 1820. 126. A lease for seventy-seven years of part of an entailed estate is a contravention, and cannot be sustained even for a shorter term, though the prohibitions are only against selling, burdening, or away putting, and it may be set aside after the death of the contravener by a substitute heir serving to the contravener, although its existence was known to the substitute in the Ufetime of the contravener. Away put is correctly translated in the charter as " dilapidare." — Innes v. Baroness Mor- daunt (Durris), 1 S. Ap. 169 (1822) ; Aff. E.G. 9th March 1819. 127. It is not a good objection to the pursuer of a reduction of a lease as ultra vires of an entail that he had, before succeeding to the estate, given a sum of money to the lessee to obtain a cancellation of an I 2 132 ENTAIL. [Powers to Grant Promsiom. agreement with, a prior substitute -whicli recognised the lease. — ^Innes ■V. Mordaunt (Durris), 1 S. Ap. 169 (1822); Aff. 1 S. 150. 128. An lieir of tailzie iu possession having let leases at grassums in contravention of the tailzie, but from its not having been recorded, the lease not being subject to be reduced ; remit to the Court to review their judgment finding the executors of the contravener liable in damages to the heir succeeding to the estate. — Queensberry Trustees V. Marquis of Queensberry, 2 W. & S. 265 (1826) ; 4 S. 320. See 130. 129. In a tailzie a prohibition against disponing strikes at a lease for 300 years of a loch. Query, What period of lease of such a subject would be legal?— Stirling v. Dun, 3 W. & S. 462 (1829) ; Eev. 6 S. 272. .130. "When an heir of entail grants leases in contravention of the entail, but which cannot legally be reduced, a substitute has no claim for damages on account of loss or injury thence arising, but the sole remedy is that which the entail confers in case of contravention. — Duke of Queensberry's Exrs. v. Marquis of Queensberry, 4 W & S. 254 (1830) ; Eev. 6 S. 706. 131. The 10 Geo. III. c. 51, makes leases of longer duration than it sanctions fraudulent (semhle). — Innes v. Exis. of Duke of Gordon, 4 W. & S. 305 (1830) ; Affi 6 S. 279. 132. An entail contained a prohibition and irritancy against grant- ing leases for more than nineteen years, but no corresponding resolutive clause. Held that the defect did not affect the general rule against long leases as being alienation. Observed that no fixed duration has been assigned by any decision for the limit of a valid beneficial lease under an entail, and that both nineteen and twenty-one years are common periods. — Anstruther v. Anstruther (Caiplie), 2 S. Bell, 242 (1843) ; Aff. 3 D. 142. 133. A power to seU the whole of the lands entailed, except the mansion-house, on the purchase and entail of other lands, is not incon- sistent with an entail. — Baird v. Baird (Newbyth), 6 S. Bell, 7 (1847) ; Aff. 6 D. 643. See Acquiescence, 4 — Bona Fide Possession, 3, 4. IX. Powers to Ghant Provisions. " 1 34. An entail having reserved right to the entailer to grant jointures and provisions to a second wife or chUdien, and a subsequent deed, unregistered and undelivered, having restricted this faculty that it should not be exercised to a further extent than L. 100,000 Scots for younger children, " or for the haill provisions in favour of the haiU children or wives of subsequent marriages," and on a second marriage the entailer having provided to his wife a jointure of L.IOOO sterling Powers to Grant Provisiuns.] ENTAIL. 133 a-year by a post-nuptial deed, she was, in a question with the eldest son of the first marriage, found entitled to draw the L.IOOO aryear till the L. 100,000 Scots was exhausted, and no longer. — Marchioness Dowager v. Marquis of Annandale, Eobert. 411 (1722) ; Alt. 135. The heir in possession is bound to keep down interest on bonds granted by him in fulfilment of obligations entered into in the marriage-contract of his daughter, but not on bonds granted gratuitously within the provisions of the tailzie. — Lord Cathoart v. Shaw (Greenock), Cr. & St. 618 (1756) ; AS. M. 15399. 136. A provision in a tailzie on heirs male, binding them to pay a sum to the daughter and heirs female of the entailer's body, is effectual in favour of the daughter, though there being an heir male she is not properly an heir female. — "Watson v. Glass (Eedhouse), Cr. & St. 372 (1744) ; Aff. M. 2306. 137. An heir of tailzie having conceived that the tailzie was invalid, settled his whole estate on the daughter. The tailzie being held valid, the daughter was held entitled to a reasonable provision out of the estate, such as the father had power under the tailzie to grant, although he had not exercised such power. — Craik v. Craik (Duclirae), Cr. & St. 543 (1757); Aff. 138. A tailzie empowered the heir in possession to grant provisions to children such as the estate might conveniently bear, and as might be agreed to by two of the nearest relations, not exceeding a sum left blank, the estate being worth L.IOOO per annum, and having burdens amounting to L. 7000, two bonds of provision to an only daughter of L.IOOO each held within the power. The circumstance of the daughter afterwards, before her father's death, succeeding to another estate does not avoid the bonds, though they had remained undelivered. — Bruce V. Carstairs (Kinross), 2 P. 329 (1773) ; Eev. 139. An entail having conferred a limited power of granting liferent infeftments to wives, held that an apparent heir, dying after being three years in possession, could validly grant a liferent locality to his wife. — Graham v. Countess of Glencaim (Finlaystone), 5 P. 134 (1806) ; Atf. M. Heir Apparent, Ap. No. 1. 140. Under a tailzie empowering reasonable provisions, one heir having provided to the amount of L.24,000 on a gross rental of L.8700, provisions by a subsequent heii' of L. 10,000 to each of his two daughters held not unreasonable. — Earl of Mar v. Erskine (Mar), 5 W. & S. 611 (1831); Aff. 9 S. 126. 141. Under an entail which contained a power to burden the estate with provisions not exceeding three years' clear rental, it is competent for the heir in possession to grant a bond in favour of his daughters, not payable until an heir other than of his own body shall succeed, 134 ENTAIL. [Poioerd to Gf-rant Provisions. and interest on it is due from the time of that event happening. — Porterfield v. Howden (Duchal), 1 S. & M'L. 739 (183S) ; Aff. 12 S. 734. 142. A bond by an heir of entail, undelivered and revocable, pro- viding three years' clear rent to younger children, is effectual against the heirs succeeding, though the granter was not in actual possession, in consequence of a competition of brieves which was only decided after his death, and the rents were drawn by a factor appointed jointly by him and his competitor, and he was in possession (in this way) for only three years and five months, and did not draw three full years' rent. In computing the free rental, the interest only of real burdens is to be deducted, and not the capital. — Porterfield v. Corbet (Duchal) 1 S. BeU, 476 (1842) ; Aff 2 D. 573. 143. Under a power in an entail to provide widows in lieu of terce in annuities not exceeding a fourth part of the free rents of the estate, after deducting certain specified burdens, but that the widows should have no right to possess the mansion-house, or enclosures or policies belonging to it, a widow is entitled to one-fourth of the rent of the home farm, though kept by her late husband in his own hands, and also of the shootings let (and, per Lord Brougham, even if unlet), and the rental is not to be considered as varying from year to year, but as what it was at the husband's death, and not subject to deductions for main- taining an embankment, repairing the parish church, or factor's fee. — M'Pherson v. M'Pherson (Belleville), 5 S. BeU, 280 (1846) ; Aff. 1 D. 794. 144. A wiU having directed lands to be purchased by trustees, and settled on the heirs of an entail of other lands, the first heir who would take is entitled, on succeeding, to grant his wife an annuity over the lands to be purchased, in terms of a power contained in the entail re- ferred to. — M'Pherson v. M'Pherson (Fairbum), 5 S. BeU, 280 (1846) ; Aff 1 D. 794. 145. A power to charge the estate with provisions to children Ues in the discretion of the holder of the entailed estate for the time being, and cannot be exercised by charging the estate with a sum to be applied by trustees for the children in the manner they may think most advisable. It may be validly exercised by giving the provision to trustees for the younger child for life only, without power to him to anticipate it, but it is incompetent to direct the trustees to invest the capital in land, to be entaUed on his children. — Duke of Northumberland v. Macregor {Tul- lihardine), 5 S. Bell, 396 (1846); Aff. 2 D. 1840. 146. Under an entail containing a power to grant provisions to yoimger chUdren, an heir of entail who takes for his life only, and not to the heirs of his body, cannot grant any provision to his children. Entailei's Debf] ENTAIL. 135 Query, Whether he could under the Aberdeen Act ? Observed that though express reference to a statutory power is not necessary to make an execution of it vaUd, yet the statute will not support an execution never intended to operate under it. — DicJcson v. DicJcson (Chatto), 1 M'Q. 729 (1854) ; Aff. 13 Z>. 1291. See Husband and Wife, 52 — Provisions to Children. X. Entailer's Debt. 147. Debts on an entailed estate are extinguished on payment by the heir in possession, whether he takes assignations to them or not. — ■' Corns, of Forf. Estates v. Earl of Kuglen (not reported), Lords' Jour- nals, 12th Feb. 1724-5 ; Appeal Cases. 148. A bond of provision of the entailer in favour of the second son and his heirs, whom failing, the heirs of tailzie, is not extinguished by becoming vested in one of the heirs of tailzie succeeding to the estate, and not making up a title to the bond. — Irvine v. Cumming (Drum), Cr. & St. 103 (1733) ; Aff.M. 3042. See Security, IL 149. A power to burden an entailed estate for the entailer's debt warranted wadsets for the same, which were a sufficient ground of an apprising, whereof the legal might run. — Duke of Eoxburgh v. Kerr, Cr. & St. 156 (1735) ; Aif. See Eeal Burden, 2. 150. A tailzie being made for onerous consideration in favour of the maker as institute, the estate is only liable for his debts incurred previously, and undischarged at his death, and for such debts incurred subsequently as were made real prior to infeftment taken on the entail. — Agnew v. Stewart (Sheuchan), 1 S. Ap. 320 (1822) ; Eev. 151. An heir of entail having discharged a wadset of the entailed lands, by taking not only a discharge, but a resignation ad remanentiam, and executed it by resigning in his own hands, the wadset is ex- tinguished, and the whole estate falls under the fetters of the entail ; but having subsequently disponed the wadset lands to a trustee,^ for behoof of younger children, under the belief that it was in law still subsisting, the rents paid by the trustee under the deed are held as bond fide cmisumpti. — Duke of Eoxburghe v. Wauchope, 1 W. & S. 41 (1825) ; Aff. F. C. 14th Dec. 1815, and 1 S. 487. See 13. 152. An entailer having burdened his heirs in- the entailed estate with all his debts, and having also, in a settlement of his whole other property, burdened it with all his debts, they must be paid rateably out of the entailed and the other estates. — Moncreiff w. Skene (Hallyards), 1 "W. & S. 672 (1825) ; Eev. See Heir, 70 — Heir and Executor, 1. 153. An onerous entail protects the estate against future debt of the entailer (Sheuchan), but a gratuitous entail does not. An entail is not onerous which is made in virtue of a submission between two 136 ENTAIL. [Charffes on Estate. brothers, claimants to the estate, and {gemble) it can only he onerous if made in consideration of marriage. — Dickson v. Cunningham (Kil- hucho), 5 W. & S. 657 (1831) ,• Aff. 7 S. 503. 154. A proprietor of three estates executed different entails as to each, and in that last executed he declared that it was granted under burden of pajrment of his debts, and also under burden of payment of certain additional provisions to his daughters, and made the heirs of entail his executors ; held, on his son, the institute, becoming bankrupt, after succeeding, that the daughters could only rank as personal creditors, but that the heirs would be Kable in their order on succeed- ing. — Kerr v. Keith (Ashkirk), 1 S. BeU, 386 (1842) ; Aff. 14 S. 458. XI. CHABGte ON Estate. 155. An entail being made prior to 1685, on the dispositive clause of which the maker used inhibition against the institute A., in order to prevent his altering the order of succession, and the institute, when in possession, having, with a view to change the order of succession, con- veyed the estate to B., the person he desired to call as heir, and who was a relation of his wife, and at the same time granted him a bond for 500,000 merks, and three years after another bond for L.5000 ; but the bond for 500,000 merks having been reduced by the heir of the original entail on the succession opening to him, as in fraud of it, and the other bond having lain latent for thirty-five years ; held that the bond being gratuitous could not affect the entailed estate, even to the extent of meliorations effected by B., the granted of the bond. — Comrs. of Forf. Estates v. Earl of Euglen (not reported). Lords' Journals, 12th Feb. 1724-5 ; Appeal Cases. 156. Lands are liable for the debts of the institute prior to the registration of the entail. — Lord Advocate v. Bayne (not reported), Lords' Journals, 10th April 1759 ; Appeal Cases. See 150, 153. 157. An entailed estate may be adjudged for debt contracted after infeftment on the entail, but prior to its being recorded, though the adjudications are subsequent to the recording. — Munro v. Drummond (Cromarty), 5 W. & S. 359 (1831) ; Aff 6 S. 945. 158. An entailed estate is liable for the debts of the heir in posses- sion on a current account up to the day on which the entail is recorded, but no longer, and the balance existing on that day, after compensation of mutual claims, may be cleared off by sums subsequently realised from special securities. — Drummond v. Boss (Cromarty), 3 S. BeU, 87 (1844) ; Aff. 3 D. 698. 159. A tailzied estate being sold by. virtue of an Act of Parliament, obtained on the representation that it was burdened with debt to the full value, the next heir is not barred from bringing an action against Charges on Estate.^ ENTAIL. 137 the personal representatives of the seller and the trustees named in the Act, to have the price laid out in land to be entailed, on the ground that the alleged dehts were fictitious and fraudulent. — Mackenzie v. Stewart (Eoystoun),Cr. & St. 578, and 6 P. 711 (1754); Eev. M. 15459. 160. An heir of entail, whether in possession or a substitute, has no title to pursue a reduction of a sale of part of the estate made under the authority of a private Act of Parliament, if he does not claim under the entail, but on a title which is in contravention of it. — M'Culloch v. M'Kenzie, 3 W. & S. 352 (1828) ; Aff. 4 S. 598. 161. A law agent who conducts a litigation by which an entailed estate is recovered, has no legal claim for his costs upon the subsequent heirs of entail on their coming into possession, although his claim, being of the nature of salvage, is the strongest possible in an equitable view. — Eraser v. Vans Agnew (Sheuchan), 5 W. & S. 249 (1831); Aff. 8 S. 585. 162. An heir of entail in possession having agreed with a tenant that the latter should erect a steading, the value to be repaid him at the end of the lease, and receiving, meanwhile, an annual sum as interest, the executor of the landlord is bound to relieve the next heir succeed- ing under the entail of the principal and interest so due to the tenant. Query, Which would be liable on an agreement that the landlord should take a building at a valuation, and pay the tenant the value of lands enclosed by him during the lease. — Moncreiff v. Tod (Hallyards), 1 W. & S. 217 (1825) ; Aff. 2 S. 113. 163. The Montgomery Act (10 Geo. III. c. 51) requires an heir in possession, desirous of making the next heir liable for improvements, to give three months' notice before commencing them to the next heir, and annually to lodge with the sheriff-clerk an account of the sums expended, with the vouchers. Held that the vouchers must be those of the parties who execute the work, and not receipts of tenants to whom the money was paid ; but where the vouchers are correct, the House will not inquire minutely whether the three months' notice had expired before the work was begun; but a- notice given six years back, the work under which had ceased for three years, while many intermediate notices for other work had meantime been given, will not authorise a further execution of the improvements it covered. Costs refused in a declarator at the instance of the heir in possession to establish the liability of the next heir for the improvements. — Craufuird v. Torrance (Grange), 2 W. & S. 429 (1826) ; Eev. F.C., 1st Dec. 1820. 1 64. An entailer authorised a claim for meliorations on the part of his tenants on expiry of their leases ; the heir of entail in possession at that date, instead of paying the claim, granted new leases deferring it to the expiry of the new period of lease ; held that the claim was not valid against the heir who had by that date come into possession, but 138 ENTAIL. [Sales for Debts and Land-tax. was valid as against the representatives of the last lessor. — Fraser v. Fraser (Lovat), 5 W. & S. 69 (1831) ; Aff. 8 S. 409. 165. An heir of entail is liable for meliorations to a tenant under a lease which was granted after the making of the entail, but before it was recorded. (Note — An interlocutor, of which this was one of the findings, was ai&med, but the opinions of the Peers seem to rest their affirmance rather on the second branch of the interlocutor, viz.) An heir of entail may, by receipt of rent under a lease containing an obHgation to repay the tenant for meliorations, homologate the lease. — Graham v. Jolly (MorpHe), 5 W. & S. 280 (1831) ; Aff. 2 S. 730 and 7 S. 824. 166. An heir of entail in possession is bound to invest under the entail a sum given him by a canal company for his consent to a devi- ation of the canal, over and above the price of the land taken, under deduction only of compensation for his temporary inconvenience from execution of the works. - — Gibson v. Maitland, 6 W. & S. 388 (1833) ; Aff. 9 S. 443. 167. An heir in possession under an unrecorded entail cannot charge the lands with sums expended in improvements under the 10 Geo. III. c. 51, and the decree of the Court so charging them may be reduced after the lapse of above a year from its date. — Macdonald v. Lord Macdonald (Macdonald), 1 S. BeU, 819 (1842) ; Aff. 2 D. 889. See Arbitration, 25 — Inhibition, 3— Lifehenter, 2. XII. Sales for Debts and Land-tax. 168. A private act having directed parts of an entailed estate to be sold for payment of debts, by action before the Court of Session brought against the heirs of entail then in being, it is not sufficient to cite infant heirs at their dwelling-place, and their tutors edictaUy, but a proper representative of them must be brought before the Court, other- wise the sale is invalid, and may be reduced even after the lapse of twenty years. Observed, that an error of judgment in the Court in applying the act will not invalidate a sale, but a failure to observe the provisions of the act will. The rents and profits ordered to be repaid by the purchaser, — but this order recalled. — Agnew v. Harl of Stair (Sheucfian), 6 P. 60, 61 (1814) ; Bern. 1 S. Ap. 333 (1822) ; Rev. 1 S. Ap. 413. See 172. 169. Sale of a part of an entailed estate for the redemption of land- tax reduced in respect the seller had not disclosed that the land sold was held under a different entail from that to which the price was ap- plied, but observed that the sale was reduced only because the settler had himself been the purchaser, and that a third party might not have been affected. — Lawrie v. Lawrie (Eedcastle), 2 Dow, 556 (1814); Aff. M. Public Burden, Ap. No. 2. Contrment'wm^ ENTAIL. 139 1 70. A sale of entailed lands for payment of land-tax under autho- rity of the Court of Session, is not reducible, on the ground that by the law, as subsequently interpreted by the House of Lords, the price of the land was incorrectly computed ; or on the ground that the lands were purchased by the counsel who had signed the petition for sale in the Court of Session. — Earl of Wemyss v. Sir J. Montgomery, 2 S. Ap. 1 (1824) ; Aff. 171. A purchaser, tinder a sale for redemption of land-tax, is liable to have the sale reduced on the ground that the Court, in authorising the sale, had not evidence that the lands to be sold, being beyond the value of the tax, could not be divided, or that the sale of the whole was more eligible for the heirs of entail than that of a part wovdd have been. — Wilson V. Elliott (Stobs), 3 W. & S. 60 (1828); Aff. 4 S. 429. See 173. 172. A sale of an entailed estate having been reduced, on 31st July, by the House of Lords on the ground of nullity, reversing the decision of the Court of Session, the rents due at Martinmas following belong to the successful party. Observation by Court of Session Judges on the decision of the House in Agnew v. E. of Stair, 168. — Eobertson V. Earl of Stair, 3 W. & S. 286 (1828) ; Alt. 173. A sale of entailed lands for redemption of land-tax having been reduced as illegally conducted, the pvirchasers held entitled (though aware of one element of the illegality) to restitutio in integrum, so far as possible, while applying the same equity to the heirs of entail. The amount of the land-tax redeemed was therefore declared to be a real burden on the estate in their persons, as also the entailer's debts and provisions to children, which had been paid off with the surplus, but the heirs of entail were not to be personally hable for the principal of these sums, but only bound to keep down the interest. Inhibition used by the purchasers against the heir in possession not recalled on his succeeding to another estate. — Eliott v. Cleghorn (Stobs), M'L. & E. 1033 (1839) ; Aff. E. C, 2d June 1837. XIII. Contraventions. 1 74. The contracting of personal debts on which diligence against the estate has not followed is not an irritancy, nor is the suffering ad- judication for arrears of annuity due to the entailer's widow, that being entailer's debt. — Stewart v. Denham (Westshiels), Cr. & St. 316 (1742) ; Aff. M. 15557. 1 75. A new entail, introducing a new substitute, but without farther charge, is a contravention of an existing entail. — M'CuUoch v. M'Kenzie (Barholm), 3 W. & S. 352 (1828) ; Aff 4 S. 598. But see Heir, 8. 176. Question whether an incumbrance on an entailed estate granted for the life of the heir in possession is not a contravention, as the heir's 140 ENTAIL. [RecordtTig, ^c. right may cease prior to his death. — Graham v. Bontine (Gartmore), 1 Eohin. 347 (1840) ; Aff. 15 S. 711. 177. Although the Act 1685, c. 22, declares that a contravener shall forfeit for himself and his heirs, this only applies to his heirs, where they are declared ui the tailzie itseK to forfeit, and if this is not de- clared, the heirs of the contravener may pursue a declarator of irritancy against him. — Graham v. Bontine (Gartmore), 1 Eobin. 347 (1840) ; Aff. 15 S. 711. 178. An irritancy committed hy selling part of an entailed estate is not purged hy re-acquiring the lands through excambion of another part of the entailed estate, which is a second irritancy. - — Graham v. Bontine (Gartmore), 1 Eohin. 347 (1840); Aff. 15 S. 711. 179. Possessiag upon a title different from the tailzie (in virtue of a decree in absence reducing the entail), and failure to bear the name and arms, may be purged before decree in a declarator of irritancy (and of reduction reductive of the reduction), on the party finding caution against incumbrances incurred during his fee-simple possession. — Abemethie v. Forbes (Balbithan), 1 Eobin. 434 (1840) ; Aff. F. C. 20th June 1837. See 62, 125, 126, 189— Forfeitukb, 14, 15, 16. XIV. Eecokding and Making up Titles. 180. Question raised but not decided whether an entaU made in 1678, and completed by charter and infeftment prior to the Act 1685, is effectual. — Lord Advocate v. Bayne (not reported), Lords' Journals, 1759 ; Appeal Cases. 181. A tailzie made prior to 1685, c. li, and not recorded, does not debar the heir from granting provisions to younger children. — Borth- wick V. Borthwick (Overshiels), Cr. & St. 53 (1731) ; Eev. M. 15556. 182. An heir of tailzie in possession, having made up his titles with only a general reference to the prohibitions, &c., in the original settle- ment or bond of tailzie (which was prior to the Act 1685, and never recorded), has not power to sell for payment of debts, but the rights of the creditors to affect the lands were reserved. — Crawford v. Lord Gamock (KUbimie), Cr. & St. 167 (1735) ; Eev. 183. The Act 1685 applies to tailzies made before its date, and credi- tors contracting with heirs who do not insert in their retours and infeft- ments the prohibitions, &c., except by reference to the original tailzie, may affect the estate. — Lord Gamock v. Earl of Glasgow (Kilbimie), Cr. & St. 281 (1740) ; Aff. Elchies v. Tailzie, No. 7. 1 84. A tailzie executed before the Act 1 685 is invalid, unless recorded in the Eegister of Tailzies, although the charter proceeding on it was so recorded. — Lord Kinnaird v. Hunter, 2 P. 97 (1765) ; Aff. M. 15611. Recording, ^e.\ ENTAIL. 141 185. An entail completed by infeftment prior to the Act 1685, but not recorded under it, is void against creditors, but the defect does not entitle the heir in possession to sell for debts incurred since the death of the maker, reserving the question as to the debts incurred by him. — Earl of Eoseberry v. Creditors of Lord Primrose (Carrington), 3 P. 651 and 654 (1767 and 1770) ; AS. M. 14019. 186. Debt contracted by an heir of tailzie possessing on a personal title cannot be made to affect the tailzied estate, though the tailzie had neither been registered nor feudalised. — Denham v. BaUlie (West- shiels), Cr. & St. 113 (1733) ; Eev. 187. Creditors of a former owner adjudging, but not infeft till after the date of infeftment of the heir in possession under an entail un- recorded, cannot compete with him. — Lord Advocate v. Bayne (not reported). Lords' Journals, 10th April 1759; Appeal Cases. 188. An heir of tailzie though unrecorded, and containing no clause binding the heirs to possess under it alone, cannot alter the order of succession in the tailzie, and if he makes up a title in fee-simple and burdens the estate, he and his representatives are boimd to disburden it at the instance of the next heir. — Duke of Douglas v. Lord Strath- naver (Rosebank), Cr. & St. 32 (1730) ; Aff. M. 15373. 189. Omission of the restrictions in a general retoiu? does not incur an irritancy. — Denham v. Stewart (Westshiels), Cr. & St. 233 (1737); Eev. M. 7275. 190. An entail duly feudalised, but unrecorded, is invalid against creditors. — M'Kenzie «. Urquhart (Cromarty), Cr. & St. 302 (1741) ; Aff. Elchies v. Tailzie, No. 13. 191. A general service as heir of tailzie carries an unexecuted pro- curatory in the deed of tailzie, as well as the precept contained in a charter obtained by the heir to whom service is taken, and the sasine on the procuratory may properly contain the fetters. — Maitland v. Forbes (Pitrichie), Cr. & St. 570 (1754) ; Aff. M. 14431. Lord Napier V. Livingston (Westquarter), 2 P. 108 (1765) ; Aff. M. 15409, 15418. 192. The destination being to an institute and his heirs male, whom failing to his heirs whatsoever, a brother takes as substitute on the death of the institute without issue, and may apply to have it recorded before the death of the institute, but after the death of the entailer. — Lord Napier v. Livingston (Westquarter), 2 P. 108 (1765); Aff. M. 15409, 15418. 193. Production and registration of the charter following on an entail is not registration of the entail. — Lord Advocate v. Bayne (not reported). Lords' Journals, 10th April 1759 ; Appeal Cases. 194. An entail being executed in form of a procuratory, the procura- tory, and not the charter following on it, is the deed which ought to be 142 ENTAIL. [Beecn-dtng, 4rc. recorded in the Eegister of Tailzies. — Irvine v. Earl of Aberdeen (Drum), 2 P. 419 (1777) ; Aff. M. Ap. Tailzie, p. 1, No. 1. 195. An apparent heir executed an entail, the next heir possessed for more than three years on apparency, and his' daughter passing by him made up titles to the party last infeft. Held that she was bound by the personal obligation in the entail to convey the lands in virtue of it. — Car- michael v. Carmichael (Easter Hailes), 6 P. 155 (1816); Aff. 16 E. C. 17. 196. An entailer having called his eldest son as institute, reserving his own liferent and power to seU or revoke, and the deed being unde- livered, and the institute dying before the entailer, remit to consider whether a substitute should have made up his title by general service to the entailer or to the institute. Opinion of all the Court that he ought to have served to the institute if there had been delivery of the tailzie or an equivalent. By some of the Judges it was held, that if the deed was unrevoked it was equivalent to a delivered deed ; but by others, that if there was not actual delivery the course was that the substitute should proceed by declarator of the death of the institute and of his own resulting right. — Colquhoun v. Colquhoun (Luss), 5 W. & S. 32 (1831) ; 7 S. 200. See Heir, 66. 197. An entail appearing in the E«gister of Sasines, but not recorded, is void, though made on occasion of marriage. — Grahame v. Graliame (Babnakewan), 5 W. & S. 759 (1831) ; Aff. 8 S. 231. 198. Two entails of different estates being referred to in one charter and sasine, the clauses identical in each entail being repeated only once, but those which were different being separately set forth, the charter may be construed applicando singula singulis, and is sufficient compKance with the Act 1695, and the omission in the charter of the branches of the destination which before its date had become exhausted, is proper and regular. — Graham v. Bontine (Gaxtmore), 1 Eobin. 347 (1840); Aff. 15 S. 711. 199. A purchaser is entitled to expect that he shall find every con- dition of an entail in each and both of these registers, but it is no objection to the validity of the entaO. that conditions appear in either register, which, in point of fact, are not binding. — Graham v. Bontine (Gartmore), 1 Eobin. 347 (1840); Aff. 15 S. 711. 200. An entail reserving the maker's liferent, and calling his son as institute, is not invalid because described in the petition and inter- locutor for recording as an entail in favour of the maker and his heirs male of his body, &c. An error in transcribing the irritant clause in the register, making it read " in case the heir shaU fail to neglect or perform the conditions," is not fatal. — Norton v. Stirling (Eenton), 2 M'Q. 205 (1855) ; Aff. 14 D. 944. 201. The original deed creating the entail is that which is to be re- Working off, ^e.\ ENTAIL. 143 corded, althougli it is not such, as to enter the feudal progress, and a deed feudalising it, and tearing to be granted in implement of it, need not he recorded.— Earl of Fife v. Duif (Carraldston), 4 M'Q. 469 (1863) ; Aff. 24 D. 936. 202. An entail being made by A. calling his eldest son B. as institute, failing whom and the heirs of his body, C. his second son and the heirs of his body, and A. having, after succeeding and making up his title, died without issue ; held that C. took as successor of A. by disposition in the sense of the Succession Duty Act, and was therefore liable to only one per cent. duty, —ior-ci Saltoun v. Adv. General, 3 M'Q. 659 (1860) ; Bev. See 65 — ^Forfbituee, 15 — Heir, 66 — Inpbftment, 15 — Superior AND Vassal, 4. XV. "Working off by Prescription. 203. Prescription as against a deed of tailzie unrecorded and unfeu- dalised is not interrupted during the minority of the substitutes. — Monypenny v. Ayton, Cr. & St. 649 (1757) ; Eev. M. 10956. 204. A tailzie may be cut off by negative prescription, and the minority of the next substitute does not prevent prescription from running. — Black v. Gordon (Kincraigie), 3 P. 317 (1794) ; Aff. Auch- indachy v. Grant, M. 10971. 205. "Eemit to consider how far a title to exclude, setup on positive prescription by an heir of entail in a declarator of contravention brought by a substitute, is involved in the title of the substitute. — Dabymple v. Fullerton (Bargany), 3 P. 631 (1797). 206. Opinion that a substitute of entail is entitled to deduction of minority in computing the years of prescription on a possession alleged to be in contravention of the entail. (Per Lord Thurlow.) — Dalrymple V. Fullerton (Bargany), 3 P. 644 (1797). 207. Possession by the heir of Hne, on apparency, he being also the heir of entail, does not cut off by negative prescription the right of the heirs under the entail, it having been recorded but remaining personal. — Maxwell v. "Welsh (Soarr), 6 P. 65 (1814) ; Aff. 208. Under a strict entail, recorded, the heirs possessed in apparency for twenty years, then made up titles as heirs of line, and possessed thereon for thirty-two years ; held that a substitute called preferably by the entail is entitled to reduce the fee-simple title. — Balfour v. Lumsdaine (Blanerne), 6 P. 150 (1816); Aff. 16 P.O. 299. 209. The narrating a tailzie in a deed which alters the order of suc- cession and imposes different restrictions, and upon which charter and sasine and possession for forty years follows, does not prevent the tailzie from being worked off by prescription on the charter and sasine. — Paterson v. Purves (Polwarth), 1 S. Ap. 401 (1823) ; Aff. 144 ENTAIL. [BarunderRutherfurdAct 210. A tailzie, before it was feudalised, having been revoked (under a reserved power) as to all but the entailer's heirs of the body, and cancelled with approbation of the entailer's son, but revived by prov- ing the tenor by a subsequent heir of the body, and such heirs having afterwards failed, so that the heir in possession had both a title in fee- simple and as heir of entail in his person ; held that his serving and obtaining infeftment as heir of tailzie, and possessing thereon for more than forty years, did not exclude him from setting up his fee-simple title. — Mackay v. Lord Eeay (Eeay), 1 W. & S. 306 (1825) ; Aff. 2 S. 520. 211. Eemit to the Court of Session to review their interlocutors finding that a deed executed in 1742 on the purchase of an estate to be added to lands tailzied in 1721, was an exercise of a power of inter- jected nomination of substitutes reserved in the tailzie, and was not an alteration in virtue of a power to alter reserved in the tailzie, and that possession on the deed 1721, tUl the period at which the new series of heirs came to have right, was not a prescriptive title excluding the deed 1742. — Stewart v. Porterfield (Duchal), 2 W. & S. 369 (1826) ; Eem. 1 S. 9. 212. Prescription does not run against a separate deed of nomina- tion unrecorded, made under a power to nominate reserved in an entail, though the estate has been for forty years possessed on the entail, without mention of the deed of nomination. — Stewart v. Porterfield (Porterfield), 5 W. & S. 515 (1831) ; Aff. 8 S. 17. 213. An heir in possession under an entail made a new entail pro- pelling the fee, but also containing new and independent provisions, and not referring to the original entail except for the description of the lands. Held that the second deed was a new entaU, but not having been recorded, it was ineifectual, but that possession on it for forty years had worked off the old entail. The heir taking advantage of these defects and selling, is not bound to reinvest the price. Observar tions of Lord Cottenham against the principle of the Ascog case. — Montgomerie v. Earl of Eglinton (CoUsfield), 2 S. BeU, 149 (1843) j Aff. 4 D. 425. See Hbib, 22, 23 — ^Pbbsoription, 13. XVI. Bae under Euthekfded Act.- 214. The operation of the 16 and 17 Vict. c. 94, is retrospective on proceedings imder the Eutherfurd Act. — Kerr v. Marquis of Ailsa, 1 M'Q. 736 (1854) ; Aff. 14 D. 864. 215. An heir in possession may effectually bar the entail with the proper consents at the time being, although other nearer heirs may afterwards come into existence. — Martin v. Kelso, 2 M'Q. 556 (1857); Aff. 15 D. 950. See Forfeiture— Heir, 9. EUROE OF LAW OR FACT. 145 EEEOR OF LAW OE FACT. 1. The claimant of an estate forfeited to the Crown as m possession of an attainted party, having erroneously prosecuted his claim before the Court of Session, which had jurisdiction only when the attainted party was not in possession ; and on reversal of their judgment in his favour, the time having expired for instituting a claim before the proper Court, held not entitled to an enlargement of the time. — Bayne V. Comrs. of Forf. Estates, Robert. 507 (1725); Aff. 2. A cautionary obligation, extended in time by the parties after it had become prescribed, but while they were under the belief that in law it was not yet prescribed, is binding, and an obligation of relief from such obligation is also valid, though granted a,fter the bond was prescribed, and not referring to the prorogation. — Henderson v. Ramsay, 5 P. 155 (1806) ; Aff. 3. There is no claim for repetition for money paid under en-or juris, and none for money paid under error faoti, if the party had full oppor- tunity of leamiug the truth. — Wilson v. Sindair, 4 W. ^ S. 398 (1830); Rev. IS. 401. , 4. Opinion that by the law of Scotland there is no right to recover money paid under mistake of law. (Per Lord Brougham.) — Dixon v. Monkland Canal Co., 5 W. & S. 445 (1831) ; Aff. 8 S. 826. 5. A general trustee for creditors having granted to a creditor, selling under a heritable bond, a guarantee of the amount of his debt, on con- dition of his stopping the sale, after having had an opportunity of examining the bond and sasine, and the sasine being afterwards found void, and the estate insufficient to pay creditors having priority, the trustee is still bound personally by his obligation. — Grieve v. Wilson, 6 IF. ^ /S. 543 (.1833) ; 4/. 6. A compromise and arrangement fairly and honestly entered into under advice of a professional adviser and the opinion of counsel, will not be set aside on the ground that a point of law was overlooked in the case, which, if thought of at the time, might have prevented the party from agreeing to the terms, as making a material difference in his relative situation. — StewaH v. Stewart, M'L. f R. 401; 6 CI. ^ Fin. 911(1839); Aff. 15 S. 112. 7. Two deeds were executed, the second to provide for the case of the first being found illegal ; held that the beneficiary under both, by claiming on the latter, does not abandon his claim under the former, if it is found YaM. — Porterfield v. Corbet, 1 S. Bell, 476 (1842) ; Aff. 2 D. 573. 8. On a statement of the law agent of deceased party after the funeral, that a certain sum was moveable, the heir in heritage signed a minute E 146 EVIDENCE. assenting to its being so considered. Held that he was entitled to reduce the minute on the ground of want of consideration, misrepre- sentation, and essential error, and that an issue might be granted to try- that question, before deciding whether in law the sum was moveable or heritahle.— Johnston v. Johnston, 3 M'a 619 (1859); Aff. 19 D. 706. See Arbitration, 18, 22, 23, 24 — Conveyancing, 13 — Fraud, 5 — Husband and Wipe, 45, 46 — Law Agent, 6. EVIDENCE. 1. The agent of the granter of a deed, being one of the subscribing witnesses, is admissible cum notd to prove its delivery. — Sawyer v. Earl of March, Cr. & St. 479 (1750) ; Rev. M. 16757. 2. Pending a suit in Scotland respecting the legitimacy of a child bom in Paris, a charge of fraud was brought against the parent by one of the parties before the criminal tribunals in Paris. Held that they were bound to stop such proceedings and have the charge dismissed ; and also in case the principal depositions, &c. made in course of it should not be delivered up by the Paris copxt, then to produce all copies thereof in their possession. Held that the witnesses examined in Paris before such order were not incapacitated, but to be received cutn notd, and none of the proceedings before the court at Paris ought to be admitted in evidence. — Douglas v. Duke of Hamilton, 6 P. 763 (1764) ; Alt. See 16. 3. In a reduction on the ground of fraud and facility from age, the solicitor who drew the deed, and who was agent for the defender in the reduction, is admissible as witness for him to prove the sound mind of the party. — M'Latchie v. Brand, 2 P. 312 (1778) ; Eev. M. 16776. 4. It is incompetent to discredit a witness by evidence of conversa- tions in which he had taken part after his examination. — De La Motte V. Jardine, 3 P. 197 (1791) ; Aff. See 19, and Action, 67. 5. Notes in the alleged debtor's pocket-book, with an account made out by him, held not to be sufficient evidence after his death to prove the debt. — Waddel v. Waddels, 3 P. 188 (1790) ; Aff. 6. A negro slave being objected to as witness, as not being a Chris- tian, he was ordered to be examined upon the articles of his faith. — Nieolson v. Nicolson, 3 P. 655 (1771) ; Aff. M. 12639, 16770. 7. In an action of divorce for adultery directed against the wife, the alleged paramours are admissible witnesses for her. — Marshall v. MarshaU, 4 P. 72 ; 7 Br.P.C. 612 (1799) ; Eev. M. 16787. 8. Eeceipt of money can be proved only by writ or oath, and there- fore a judicial declaration on the fact cannot be called for, — Macdonald V. Elder, 5 P. 542 (1811) ; Aif. See Debt, 2. evidence; 147 9. Ill order to allow merchant's books to be a semiplena prohatio they must be regularly kept, and items entered in the margin, or interpo- lated, are not proved. — Ivory v. Gourlay, 4 Dow, 467 (1816) ; Eev. 10. The testimony of an aged person being taken by deposition before a magistrate without authority from the Court, will not be received if objected to, but may be if the objection is waived. — Toviart V. Sellars, 6 P. 301 ; 5 Dow, 231 (1817) ; Rev. See 16. 11. It is iucompetent to remit to the secretary of the Board of Excise to state what weight is to be given to certain entries in excise books. Copies of entries in such books are admissible in evidence, but not on mere certificate of correctness ; they must be proved by some one who has made them, or compared them with the originals. The books of distUlers who supply a public-house are not evidence to support a charge for spirits delivered which had been omitted from a settled account. — Dunbar v. Harvey, 2 Bligh, 351 (1820) ; Rev. 12. An alleged excerpt from a destroyed deed, which is ex fade imperfect and inconsistent, is inadmissible as evidence. — Forhes v. Wilson, 1 S. Ap. 249 (1822) ; Rev. F.G. lOtJi June 1818. 13. Letters between the trustee and the attorneys he employs are evidence against, but not for him. — Young v. Muir, 2 jS'. Ap. 25 (1824) ; Rev. 14. Observations on the impropriety of allowing hearsay evidence, and evidence of the contents of written documents not produced, nor proved to be destroyed. — Morton y.- Hunters, i: W. ^ 8. 379 (1830). 15. In a claim to work quarries in a royal park made by the keeper, founded on usage, it is not admissible evidence — 1st, That the quarries were worked by other persons not proved to be clothed with the same office of keeper, or with permission of the keeper. 2d, That the books of the town-council of a neighbouring burgh contaiued entries reserving their right to quarry stones, directing them to be quarried, directing application for leave to carry them away to be made to the keeper or his tenants, or directing payment for them to be made to the keeper. M, That the keeper granted leases of the park, reserving right to the quarries. But the only admissible evidence is the books or receipts of the keeper, showing he had received money for the stones quarried, or a series of leases of the quarries in which rent was stipulated to be paid for them. — Off. of State v. Earl of Haddington, 5 TF. ^ & 570 (1831) ; Mev. 8 S. 867. 16. Statements made by a witness in a suit are not evidence in another suit to which the witness is not a party. A statement that a certain individual was present at a meeting as agent for another, though embodied in a formal minute, is not evidence of his agency. (Per Lord Brougham.) — Gillon v. Macldnlay, and MaeTtsmie v. Macartney, k2 148 EVIDENCE. 5 W. ^ S. 474, 513 (1831). See Patronage, 8— Presliytery, 2— Executor, 3. 17. In a reduction of a settlement by the alleged heir, a party who also claimed to be heir, but in a diiferent line, held to be a competent witness. —Ealston v. Eowat, 6 W. & S. 468 ; 1 CI. & Fin. 424 (1833) ; Eev. 11 S. 451. 18. In an action arising out of alleged fraudulent representations of the value of shares in a company which afterward^ became bankrupt ; held that the shareholders in the company were admissible witnesses. — Syme v. Brown, 1 S. & M'L. 723; 3 CL & Fin. 412 (1835) ; AJT. 13 S. 407. 1 9. Evidence cannot be impeached by proof adduced subsequently that a statement, not relevant to the issue but only bearing on the witness's character, was false. Question, Whether it would have been admitted if protest for reprobators had been made at the time ? - — Lines V. Innes, 2 S. ^ M'L. 417 (1837) ; Aff. 13 S. 1059. 20. In an action of nuisance it is incompetent to ask a witness for the defence, in cross-examination, whether he knows of a sum having been paid by the defenders to another party on account of the alleged nuisance, and such question cannot be asked even for the purpose of discreditiag the witness. Observed that a bill of exceptions for the refusal to admit a question in examination ought only to be taken when the point in dispute is of great importance. — Tennant v. Hamilton, M'L. ^ R. 821 ; 7 Gl. 4: Fin. 122 (1839) ; Rev. 1 D. 502. 21. A witness is at liberty to refer to a printed copy of a report he has made, when it contains calculations made on the margin by him in pencil, the materials for which exist in his note-book, though not wrought out there. — Home v. Mackenzie, M'L. ^ R. 977 ; 6 01. ^ Fin. 628 (1839) ; Aff. 16 S. 1286. See Proving the Tenor, 5. 22. An account rendered by a mercantile firm being alleged by them to be written on erasure in essentialibus, they are bound to prove by their books that it has been altered, otherwise it will stand good against them. — Fergussmr. Fyffe, 2 Robin. 267; 8 CZ. ^ Fin. 121 (1841); 4/. 16 & 1038. 23. It was not a good objection to a witness that he had an interest in the decision of the question at issue, not having any iu the cause itself. — Willox V. Farrell {or Wood v. Young), 6 S. Bell, 89 ; 1 ff. L. Ca. 93 (1847) ; Rev. 9 D. 766. 24. In a trial as to the liability of a deceased on certain documents, on the ground that his mind was weak when they were granted, entries in his books made by him are admissible to prove his state of mind, though not admissible to prove his non-liability through payments made. A pleading in another action signed by a party is evidence EXECUTOK. 149 against him. — MariamkiY. Cairns, 1 if' Q. 212: 1 Stu 1108 (1851) • Aff. 12 D. 1286. ' ' 25. If a witness examined on commission is permanently resident abroad, his evidence may he read without proof of his being still abroad, but if he has been only temporarily absent, his continued absence must be proved at the trial. — /Sfitttow v. Aindie, 1 M'Q. 299: 1 Stu. 702 (1852) ; Aff. 14 D. 184. 26. Letters and reports prepared by a mining engineer for the guidance of a paity about to institute law proceedings thereon, are privileged as much as a brief for counsel, or a case for opinion. — Bargaddie Goal Co. v. Warh, 3 M'Q. 467 (1859) ; Aff'. 18 D. 772. See Court op Session, 2— Foreign, 28, 30— Landloed and Tenant, 32— Partnership, 16— Public Works, 13, 15— Stamp, 3, 4— Statute, 4, 6, 9, 14— Trust {Constitution of), and 48, 52— Written Documents. EXCISE. 1. After a distiller has given notice to the Excise that he has ceased to distil, although his distiller's license has not expired, he must take out a dealer's license before he can dispose of any stock remaining on hand. — Lord Advocate v. Menzies, 4 P. 92 j 8 Br. P. C. 164 (1799) ; Rev. 2. On 13th June resolutions were passed imposing a higher duty on spirits; on 29th June the Act 38 Geo. III. c. 92, was passed, imposing them on all spirits found on the first actual survey by excise olficers, on or after 13th June in the stock of any distiller. Held (on consulting the English Judges) that the excise officers were entitled, under an order of Council, to enter any distillery after the 13th June, and survey the spirits, and that duty was payable on the amount so ascertained. — Hume V. Haig, 4 P. 95 ; 8 Br. P. C. 196 (1799) ; Rev. 3. N'ew trial granted in respect to the liability of certain salt manu- facturers to excise duties. — Grier v. Mitchell, 6 P. 1 (1814) ; Eev. 4. An excise officer having exacted interest for arrears of duties, held that whether it belonged to the public or to the officer, the party charged could not recover it back. — Young v. Leven, 4 Dow, 138 (1816) ; Aff. See Partnership, 27 — Statute, 20, 21. EXECUTOR 1. An executor, after exhaustion of the personal estate, suing the heir for funeral charges, is entitled to recover such as he was himself contractor for, but not such accounts as he paid after they had become 150 EXECUTOR. prescribed. An assignation to tlie whole right of administration carries right to recover costs in a suit respecting the right of confiimation. — Cockburni). HamHton, Eobert. 61 (1713); Aff. M. 10343. 2. The expenses of confirming executor ought to come equally out of the whole of the deceased's estate, as well legitim as dead's part. — Lashley v. Hog, 4 P. 581 (1804) ; Alt. 3. A testator having appointed his executor universal legatee for the payment of his specified debts, the executor, on intromitting before con- firmation, was ordered, on petition by a creditor, to give up an inven- tory and find caution for the amount before further intromissions. The cautioner is then liable for the whole estate, although no iaventory has been made up, and it may be proved against him by an oath of the executor sworn in another action. — Porteous v. Fordyce, Eobert. 183(1816); Aff. 1715. 4. The partner of a firm in India, in which a deposit was made on special trust, beiag named executor by the depositor, and proving the win, is answerable for the loss of the funds by the failure of the firm, although a power of attorney had been sent to the firm by the exe- cutors in England, and he had left the firm, with their knowledge, before its failure. Held also liable for Indian interest on any balance on settled accounts, or bonds paid to the firm, with allowance for com- mission on transmission. — Graham v. Kehle, 6 P. 616 ; 2 Dow, 17 ; 2 Bligh, 126 (1813-26) ; Aff. 5. Notice coming to an executor under a wiU, in the course of his acting, that another and subsequent will is in existence, does not necessarily imply that aU his acts afterwards are illegal, and in any case by the law of Scotland his acts prior to notice are valid. The opposite rule laid down in Woolley v. Clark, observed not to be settled law in England. — C7eZaMdv. Weir, 6 ,S. Bell, 402 (1849); Aff. 10 D. 199, 924. 6. Under the Act 1617, c. 14, an executor was entitled to one- third of the dead's part, although legacies were given,, them as snch..— Murray Y.Grant, 1 M'Q. 178; 1 Stu. 1069 (1852); Aff. 12 D. 201. 7. An executor receiving funds does not discharge himsetf of liability by. handing them over to a co-executor. If trustees or executors leave their trust unexecuted, they cannot resist a claim for accounting on the ground of lapse of time. — MaopJierson v. Macpherson, 1 M'Q. 243 (1852); Aff. 12 D. 486. See Assignation, 2 — Bank, 5 — Bona Fide Possession, 2-- Prbscription, 1 — Tkust, 23, 36 — Will, ExBcuTBT. — See Acquiescence, 3 — Heie, 75, 78 — Heir and Executor — Heritable and Moveable — Succession. Husband and Wife.] FEE AND LIFERENT. 151 FACTOR 1. A relative acting in charge of an estate, but not formally as factor, held not liable for arrears nor for more than 3 per cent, interest, but not entitled, to costs, as not having kept regular accounts. — M'Douall V. Buchan, 6 P. 330 ; 5 Dow, 127 (1817) ; Aff. 2. A factor having delayed to make up the titles of the heiress of an estate, whereby on her death her husband lost the liferent, held not liable in damages, there not being evidence of fraud. — Thoinson v. Somerville, 6 P. 393 (1818) ; Rev. F. G. 19ih May 1815. 3. A judicial factor is not bound to account for the back rents of a property which, till a decision of the Court of Session, he had probable cause for believing did not belong to the estate. He must, under all circumstances, account for all interest and profits received by him upon the funds in his charge. A power to appoint sub-factors includes a power to allow them reasonable salary out of the estate. — DuJce of Roxlmrgli v. Swinton, 2 S. Ap. 18 (1824) ; Alt. See Acquiescence, 6 — Cautioner, 14, 15 — Contract, 13, 15 — Heibs, 19 — Minor, 6, 9, 11, 13— Partnership, 62— Principal AND Agent — Trust, 35. FEE AND LIFEEENT. I. As BETWEEN HuSBAND AND I II. As BETWEEN PARENT AND Wife, p. 151 | Child, p. 152 I. As between Husband and Wife. 1. A disposition by a woman of her estate in her marriage-contract " to the husband in liferent and the heirs of the marriage in fee, whom failing, to the heirs and assignees of the husband," with reservation of the wife's liferent, followed by procuratory and precept " to the husband and wife and longest liver in conjunct fee and liferent, and the heirs of the marriage in fee, whom faUing, to the husband's heirs and assignees," charter and sasine being taken in these latter terms, vests the fee in the husband. — Douglas v. Montgomerie, Eobert. 99 (1714) j Aff. M. 4223. See\5. 2. A conveyance by the wife in the marriage-contract of her estate to the husband and herself in conjunct fee and liferentj and to the survivor and the heirs of their bodies, without further substitution, gives the fee to the husband, although the wife survives. — Neilson v. Murray, Cr. &,St. 65 (1732) ; Aff. 3. A destination of the wife's estate in her marriage-contract to her husband and herself in conjunct fee and liferent, and to the sons of the 152 FEE AND LIFEEENT. [Parent and Child. marriage, whom failing, to her father's heirs male, whom faiUng, to the heirs female of the marriage, whom failing, to her heirs of any suhse- • quent marriage, whom failing, to the hushand and the heirs of his body of any subsequent marriage, whom failing, to the wife's heirs whomsoever, leaves the fee in the wife, and on her death, gives it to her son by the marriage, who may gratuitously dispose of the estate. — Murray v. Blair, Cr. & St. 251 (1739) ; Aff. Elch. v. gerv. and Conf. No. 5. 4. A disposition by a husband in a marriage-contract to himself and his wife in conjunct liferent, and to the longest Hver of them and their heirs and assignees in fee, vests the fee in the wife on her survivance. — Forrester v. Macgregor, 1 S. & M'L. 441 (1835) ; Aff. 9 S. 675. 5. A bond to a natural daughter in liferent, secluding jus mariti, and to children nascituris in fee, in such proportions as she and her husband might appoint, and failing appointment, equally, and failing issue of the intended marriage, then to the husband in fee, vests the fee in the wife, and on the predecease of the husband and issue, entitles her to payment. Held that she is also entitled to revoke any permission she had given to her husband to invest the money on a different des- tination. — Macintosh V. Gordon, 4 S. Bell, 105 (1845) ; Aff. 4 D. 192. 6. A disposition by husband and mfe of the wife's real estate to themselves and the longest hver, whom failing, to a series of substitutes, reserving power to them and the survivor to alter, gives the fee to the husband on survivance, and enables him to alter the destination at pleasure. And the case is not altered in this respect by the wife having before her death executed, under the reserved power, a new deed of nomination of heirs, failing her husband and herself and the longest liver, and at the same time burdening the estate with a sum of L.8000, payable after her death to her husband, his heirs or assignees. — Scott V. MaxweU, 1 M'Q. 791 (1854) ; Aff. 12 D. 932. See 8, 10. See Husband and Wife, 40, 59, 64. II. As BETWEEN PARENT AND ChILD. 7. A disposition by a father to an infant son in fee, reserving the father's liferent and power to sell, with consent of trustees, for payment of existing debt or for purchase of more convenient lands, which dis- position was followed by infeftment and possession by the son, and subsequently by a personal deed renouncing the liferent only, effectually divests the father, and Vests the fee in the son. — Comrs. of Forf. Estates v. Drummond, Eobert. 290 (1720) ; Aff. 8. A disposition of heritage by the father of the husband to spouses in conjunct fee and liferent, and to the longest liver, and to the bairns to bo begotten between them in fee, gives the fee to the surviving father, although there is issue. — AUardice v. Smart, Eobert. 399 (1722) ; Aff. Parent and Child.] FEE AND LIFEKBNT. 153 9. A disposition to a father, whom failing, to his son nomhiatim and his heirs male, gives the father the liferent and the son the fee, and consequently he'nepd not serve to his father on his death. — Hamilton V. HamUton, Eohert. 493 (1724) ; Eev. M. 14360, 14929. 10. A marriage-contract, in which the hushand binds himself to infeft his wife in liferent, and the heir male 6f the marriage in fee in certain lands, leaves the fee in the hushand, and gives the heir male only a spes successionis, and inhibition used by the latter is not effectual against the posterior onerous creditors of the father. — Sutherland v. Gordon, Cr. & St. 493 (1751) ; AS. M. 4398. 11. A mortis causa assignation by a father to his married daughter (mother of children then born) of bonds and sums of money " in life- rent, and to the heirs of her body in fee," being followed ■S'ith a con- dition that she should pay all his just debts, and power to her and her foresaids to upHft and receive the money and grant discharges, and do everything which the grantor could in life, vests the fee in the mother. — Grahams v. Graham, 2 P. 537 (1780) ; Aff. M. 4277. 1 2. A disposition of, or a direction in a trust-deed to convey, the estate to the natural son of the disponer in liferent for his liferent use aUenarly, and to the heirs to be procreated of his body in fee, gives him a hferent only, and gives the fee to the heirs to be born. — Smith V. Newlands, 4 P. 43 (1798) ; Aff. M. 4289. 13. A disposition by a father to his son in liferent for his liferent use aUenarly, and the heirs of his body, failing whom, and failing his heirs arriving at majority or marrying, then to the disponer's daughters in liferent for their liferent use only, and to their ddldren procreated or to be procreated equally among them in fee, gives a liferent only to the disponer's son, and on failure of his issue gives the fee to the children of the daughters. —Thomson v. Thomson, 5 P. 654; 1 Dow, 417 (1812) ; Aff. 14. A mother having conveyed lands to trustees for herself in life- rent, and her children nominatim in fee, cannot afterwards alter the deed so as to affect the right vested in the cliildren. — Turnbulls v. Tawse, 1 W. & S. 80 (1825) ; Eev. 15. An obligation by a lady, in her marriage-contract, to dispone estates of which she was heir of provision to and in favour of the heir male of the marriage, under reservation of her and her husband's life- rent, leaves the fee in her. — Dewar v. M'Kinnon, 1 W. & S. 161 (1825) ; Aff. See 1. 16. A declaration that a sum of L.10,000, part of the price of an estate sold to the son-in-law of the vendor, should be " secured to the said son-in-law and his wife (daughter of the vendor) in manner follow- ing, viz., the interest of the said sum is to be liferented by the vendee and his wife during their lives, and during the life of the survivor of 154 FEE. AND LIFERENT. [Parent and Child. them, and the said principal sum to be the property of and divisible amongst the issue of the marriage male and female, as their parents, or the survivor of them, might direct, and in default of issue, as the said daughter of the vendor might direct by will," vests the fee in the issue of said marriage during their parents' lives, and gives them preference over the heirs of the vendor. — Napier v. Scotts, 2 W. & S. 550 (1827) ; Afif. 4 S. 454. 17. In the above case the vendor having died before any part of the price was paid, leaving three heirs portioners, who conveyed the estate, reserving a real burden to the extent of the price ; held that on a judi- cial sale, the price obtained being not equal to this real burden, the interest of the L.10,000 liferented must be divided equally between the other two sisters, as falling under the jus mariti of the original vendee, who was liable for the price to the heirs portioners, while the share that would come to his wife fell again imder his jus mariti, and so was again and again divisible till exhausted. — Napier v. Gordon, 5 W. & 8. 745 (1831) ; Air. 8 S. 357. 18. A father having signed an agreement to sell a piece of land, the price to remain a burden on the land, and a bond for it to be granted to him in liferent and his two sons in fee, and having desired them to sign a postscript declaring their consent that the money should not be called up for eight years, which they did, and the purchaser having entered on the land, though neither the disposition nor the bond was ever executed ; held that the fee of the price vested in the sons during their father's hfe. — Spence v. Boss, 3 W. & S. 380; 4 BUgh, KS. 510 (1829); Aff. 5 S. 17. 1 9. A conveyance to a father in liferent and to trustees, expressly or by implication, for his children nascituris in fee, does not give the father the fee, but preserves it for the children, even although the trust be not formally expressed. — Mein. w. Taylor, 4 W. & S. 22 (1830) ; Aff. 5 S. 779. See 12, 14. 20. A conveyance of personal estate to trustees, with directions to in- vest it for the truster's daughter in liferent only, and to take the fee to themselves as trustees for her children by her existing or any future mar- riage, equally among them, does not vest the fee in her children until her death. —Thomsons. Scougall, 2 S. & M'L. 305 (1835) ; Aff. 12 S. 910. 21. Under a provision in a trust-deed of a sum to a father " in life- rent, and his children equally among them in fee,'' the fee of the sum is in the father, whether children are in existence or not, the trust be- ing only for payment and not for holding the estate. — Ealston v. HamUton, 4 M'Q. 397 (1862) ; Aff 22 D. 1442. See Heies, 19 — Hbeitable and Moveable, 18 — Pboviston to Childebn, 21 — Succession Dhties, 2. Contraels.] FOREIGN. 155 FOEEIGN. I. Contracts, p. 155 11. Wills, 156 III. Actions on Contbacts and Wills, p. 157 IV. Judgments of Courts, . . 159 I. Contracts. 1. Intimation by letter, acknowledged in writing by the debtor, is sufficient in the case of an English bond, executed and assigned in England, but of which all parties were domiciled Scotsmen. — Gray v. Duke of Hamilton, Eobert. 1 (1709); Eev. M. 4453. 2. Articles of marriage in English form, binding the owner of a Scottish estate to settle fee-simple lands of L.IOOO a-year clear value on his son's marriage to the use of his son for Ufe, without impeachment of waste, remainder in part to the son's wife for jointures, remainder to the son in tail male, with other remainders over, and other lands of the value of L. 1 000 a-year to the use of himself for life, remainder to the son for life without impeachment of waste, remainder to the son in tail male, with remainders over, are sufficiently fulfilled by a conveyance of cer- tain lands by the father to the son and his wife and the longest Uver, in conjunct fee and liferent, whom failing, to their heirs male, and of other lands to the son and his heirs male, the whole comprising all the father's estate, he reserving liferent in part, without the conveyance being fenced with the clauses of a strict entail ; and although the clear rental of the said lands was less than the stipulated sum, the son may burden it with his father's debts, and may still farther diminish it by granting a power to the father to burden the lands with reasonable provisions to his younger children in satisfaction of their legitim. — Campbell v. Pollock, Eobert. 324 (1720) ; Rev. 3. A personal bond, executed in England but in the Scottish form, is valid in Scotland. — Paterson v. Oyilvie, Robert. 499 (1724) ; Aff. 4. Personal debt incurred in England, and not capable of being charged at the instance of the creditor against the debtor's heir there, may be made a ground of affecting the real estate in Scotland. . — Fuller- ton V. Kinloch, Gr. ^ St. 265 ; Aff. M. 4456. 5. An annuity, constituted by marriage-contract over an estate in Jamaica, is to be construed by the law of Jamaica, and the estate will not be relieved of it by an additional security being, in terms of an obligation in the contract, granted over lands subsequently acquired in Scotland. — O^jZotb v. Dundas, 2 W. ^ S. 214 (1826); Rev. M. Dis- cussion, Ap. No. 1. 6. A contract of insurance, effected in Scotland with the agent re- siding there of a London company, is a Scottish contract. — Albion Ins, 156 FOREIGN. [Wills. Co. V. Mills, 3 W. # S. 218 ; 2 Bligh, N.S. 519 ; 1 Duw ^ CI. 342 (1828) ; Aff. See 15. 7. EngHsli assignees in bankruptcy of a company liave not power to authorise a trust-deed by one of the partners in Scotland for pay- ment of the creditors of what was alleged to be a separate concern carried on in Scotland. — Stein's Assignees v. Brown, 5 IF. ^ (S. 47 ; 2 Dow ^ CI. 171 (1831) ; Rev. 7 S. 686. See Executor, 4 — Intebest, 6, 9 — Succession, 3. II. Wills. 8. A party taking benefit under an English will, which directs per- sonal property to be laid out in land, and settled in the same way as directed by a deed of even date respecting heritage in Scotland, but which deed is defective as a conveyance, is not bound to ratify or make good the defective deed. — Wilson v. Henderson, 4 P. 316 (1802) ; Rev. M. 15444. 9. A will made in India, and by a Scotsman domiciled there, is to be construed by the law of England, even as to questions of intention, and if being insufficient to pass heritage in Scotland, it would also not pass real estate, nor raise a question of election as to real estate in England, it will not do so as regards heritable bonds in Scotland. — TroHer v. Trotter, ZW.^S. 407 ; 4 Bligh, N. S. 502 (1 829) ; Aff. 5 S. 78. 10. A deed by a domiciled Scotsman, and valid as to Scotland, but invalid as to England, having conveyed real and personal estate in Scotland, and real estate ia England to trustees for division equally among the grantor's children, his heir-at-law cannot elect to take the English estate, and also claim his share under the deed. — Dundas v. Dundas, A: W. ^ S 460; 2 Dow ^ Clark, 349 (1830); Aff. 11. A valid trust-disposition of heritage containiug a reserved power to direct the succession as the truster might direct iu Writing, though without the solemnities of a deed, was followed by a will in the English form bequeathing the residue of the testator's estate, con- sisting of heritage in Scotland, but without express reference to the trust-deed. Held that the bequest was a proper exercise of the power, and was effectual as a declaration of trust. — Brack v. Johnston, 5 W. ^ S. 61 (1831) ; Aff. 6 S. 113. 12. A trust-deed validly conveying heritage in Scotland, and direct- ing the trustees to act according to directions contaiaed in a will al- ready executed, or to be executed according to the English form, is to be read as including such directions, and they are accordingly effectual though not probative, on its appearing that they fall under the words of reference. A deed conveying heritage in Scotland cannot be re- voked by an improbative deed, though duly executed according to the Actions on Oontmds, ^e!\ FOREIGN., 157 law of the place of execution. — Oameron v. Mackie, 7 W. (^ S. 104 (1833) ; Aff. 9 S. 601. See Deathbed, 4, 9, 10— Heritable and Moveable, 4— Will, 5, 7. III. Actions on Contracts and "Wills. 13. An English executor can be sued for the testator's debt only in England, though drawing an annuity from his real estates in Scotland, and the annuity cannot be arrested by the creditor. — Marchioness Dowager Y. Marquis of Annandale, Robert. 467 (1724); Rev. 14. A promissory note, valid by the lex loci, granted by a Scot in England, may be sued on iu Scotland. — Brand v. Gumming, Robert. 511 (1725); Aff. 15. A joint-stock company holding lands in Scotland, but having their principal office in England, may be sued in Scotland for damages for failure to re-transfer stock which had been transferred to them in security of a loan, they having agreed to accept payment of the loan in Scotland, and received it there. — Ym-k Buildings Co. v. Haldane, Robert. 521 (1725) ; Aff. M. 4818. See 6. 1 6. A suit cannot be maintained in Scotland by an executor creditor against a debtor of the deceased, when the bond is not produced, and when the wiU was proved in England, and the executor is in England and not made a party. — Earl of Breadalhane v. Lord Reay, Or. ^ St. 181 (1736); Rev. 1 7. An English executor suing on a bond in Scotland, is not liable to account in the Court of Session for his intromissions in England. — Hill V. Grant, Gr. ^ St. 597 (1755) ; Aff: M. 2661. 18. The Court of Session has jurisdiction against the executors of an English wUl proved in England, if either the persons of the executors or the effects of the deceased are within their jurisdiction, but not if the sole ground is that the executors are possessed m their private capacity of her- itable estate in Scotland. — Ferguson v. Douglas, 3 P. 503 (1796) ; Rev. 19. Although the domicile of a deceased party regulates the right of succession of his moveable property, the administration of it must be in that country in which possession of it is legally taken. Conse- quently the executor of a Scotsman proving the will in England, must administer the personal estate in England under direction of the courts of that country, and cannot be called on by the Court of Session to pay it over to the representatives in Scotland. — Preston v. Viscount Melville, 2 Robin. 88 ; 8 CI. 4- Fin. 16 (1841) ; Rev. 16 S. 472. 20. The lex loci contractus does not regulate the question of pre- scription when the debt is sued for in a different country. — Robertson V. Marquis of Annandale, Gr. ^ St. 293 (1740); Aff. 21. A Scottish beneficiary suing in Scotland on an English trust- 158 FOEEIGN. [Actions on Contracts, ^c. deed, is subject to the Scottish law of prescription. — Pollock v. Loch- haH, 2 P. 495 (1779) ; Aff. M. 10702. 22. Debentures in English form by an English company are not cut down by the negative prescription from being ranked on the com- pany's real estates in Scotland, being stiU valid by the law of England. — Ddvalle v. Ym-k Buildings Co., 2 P. 98 (1788) ; ex parte', Rev. M. 4525. 23. Outlawryin England withholds the Court in Scotland from enter- taining an action by the outlaw. — Liddesdale v. Dohie, 3 P. 555 (1797) -.Aff. 24. A bond executed in a country where by law it is retained in the register, may be proved in this country by a notarial copy. — Earl of Traquair v. Burrows, 6 P. 99 (1815) ; Aff. 25. The costs incurred by a London solicitor in prosecuting a Scottish appeal in the House of Lords, are subject to the triennial pre- scription in Scotland. — Campbell v. Stein, 6 Dow, 117 (1818) ; Aff. F.C. 23d November 1813. 26. A Scottish sequestrated debtor undischarged having gone to Eussia and become naturalised there, and his daughter in Scotland having succeeded to his Eussian funds ; opinion of Lord Gifford, that the question whether she was liable for his debts depended on the Eussian law of prescription, applied to the facts of the effect in Scot- land of a sequestration on after acquired property. — Richardson v. Countess of Hadinton, 2 S. Ap. 406 (1824) ; Rem. 27. A biU drawn and accepted in London is subject to the Scottish prescription when sued on in Scotland. — Hunter v. Duff, Q W. ^ S. 206 (1832); Aff. 9 S. 703. 28. When an English wiU (of a domiciled Englishman) applies to personal property in Scotland, it is to be construed by English rules of interpretation, but subject to the Scottish law of evidence, and therefore the Court may look at a will which has not been admitted to probate in England, and without requiring the execution to be proved by wit- nesses, as would be necessary in England. — Teats v. Thomson, \ S. ^ M'L. 795 j 3 CT. 4- Fin. 544 (1835) ; Aff. 10 S. 565. 29. Prescription on a foreign contract is regulated by the lex fori, and is not interrupted by a decree obtained in the locus contractus in a suit of which the defender had no notice, not being then in the country, and war existing at the time between the two countries, and such decree does not set up a new debt or ground of debt. — Don v. Uppmann, 2 S. ^ M'L. 682 ; 5 CZ. # Fin. 1 (1837) ; Rev. 14 S. 241. 30. Documents tendered to prove calls made by an English railway company must be good evidence according to the lex fori, and evidence is not admissible to prove them to be good evidence according to the Judgments.] FOUEIGN. 159 lex loci.— Bain \. Whitehaven By. Co., 7 S. Bell, 7913; H. L. Ga. 1 (1850) ; Aff. 12 D. 829. See Action, 145, 146 — Sale. IV. Judgments. 31. A creditor obtained judgment on demurrer in England upon an English bond, and on releasing the debtor's bail, took from the debtor an acknowledgment that the judgment should not be thereby released. The debtor having afterwards succeeded to an estate in Scotland, the creditor sued in the Court of Session on the English judgment, the acknowledgment of it in the release of the bail, and the bond itself. Held that the acknowledgment did not exclude objections against the judgment, and that the judgment could only be sustained on proof of the facts on which the EngUsh action had been brought, the confession of them by pleading in demurrer not being sufficient. — jOfoddard v. S'winton, Robert. 162 (1715) ; Aff. M. 6445. 32. Condemnation of a vessel by a foreign Admiralty Court is res judicata, and a conclusive plea against a claim of damages against the captors. — Hamilton v. Dutch East Ind. Co., Cr. ^ St. 69 ; 8 Br. B.C. 264 (1732) ; Aff. M. 4548. 33. In an action brought by Scotsmen against an EngHshman in the Court of Queen's Bench, judgment was given for the defendant with costs. He sued the plaintiffs in the Court of Session for the costs, but that Court sustained a defence of the inequity of the judgment. The House of Lords ex parte repelled the defence, and held that the Court of Session was bound to give decree for the costs, with expenses. — Wilson V. Bumtm, 2 P. 11 (1758) ; Rev. M. 4549. 34. The Stat. 5 Geo. II. c. 30, § 7, enacts that aU bankrupts surren- dering under it should be discharged from aU debts owing before bank- ruptcy, and the certificate by the Lord Chancellor should be sufficient evidence, unless the plantiff could prove it was obtained unfairly, or make appear any concealment by the bankrupt. Held that this dis- charge is pleadable in Scotland as weU. as in England, and that non- disclosure of house property belonging to the bankrupt's father, to which he was heir-at-law, but which was only worth L.50, was not fraudulent concealment sufficient to deprive him of the benefit of the act. — Gathcart v. Blackwood, 2 P. 100 (1765) j Rev. M. 4579. 35. The judgment of a foreign Court in an action properly brought in it " ought to be received in other countries as evidence prima facie, and it lies on the defendant to impeach the justice thereof, or to show the same to have been irregularly obtained." — Sinclair v. Eraser, 2 P. 253 (1771); Rev. M. 4542. .36. An indictment for perjury in England -being preferred by a 160 FORFEITURE. Scotsman against another Scotsman, and being found by a grand jury, and warrant issued thereon by Lord Mansfield to arrest the defendant, the Court of Session held entitled to give heavy damages against the plaintiff on proof that the charge of perjury was groundless and oppres- sive. — ZirfcZesc^aZe V. DoUe, 3 P. 555 (1797) ; Aff. 37. The heir-at-law of a domiciled Englishman who was proprietor of an estate in Scotland over which an heritable debt was constituted, being also administrator of his ancestor's persbnal estate in England, claimed in the Prerogative Court of Canterbury that the heritable debt should (as by the law of England) be paid out of the personal estate in England, and the claim was allowed by that Court. Held that this decision did not form res judicata against an action of relief brought in Scotland against the heir by the next of kin, and that they had right to relief against him of their share of the sum so applied in payment of the heritable debt. — Drummond v. Drummond, A P. 66 ; 6 Br. P.O. 601 (1799) ; Aff. M. 4478. 38^ A commission of bankruptcy in England vests in the assignees the bankrupt's personal estate in Scotland without intimation. It did not vest the real estate only because at that time it did not affect the real estate in England. — Selkrig v. Davies, 2 Dow, 230 (1813) ; Aff. 39. A judgment of an American court respecting a legacy left to a Scotsman by a domiciled American, is, if the parties have been properly before it, or had a sufficient opportunity of being heard, to be accepted in this country as settling the question, and not to be overruled by the contrary opinions of American or English lawyers. — Brown's Trs. v. Brotcn, 4 TT. ^ S. 28 ; 4 Bligh, N.S. 569 (1830) ; Aff. 4 S. 108. See Bankkuptct, 26 — Belli geeent, 4 — Evidence, 2. FOEFEITUEE. 1. A private Act of the Parliament of Scotland, in 1672, having directed that a forfeited estate should belong to the son of the forfeitor, reserving to the widow her claims, the son and not the widow is entitled to sue for payment of a debt which had been assigned to her by a post-nuptial deed as a provision. Held further by Court of Session, that payments made by a de facto government, such as that of Crom- well, in Uquidation of bona fide debts, though out of private funds, do not fall under a statute of restitution. Private Acts of the Parliament of Scotland were of the nature of decrees of a Court, and appeala lay to Parliament from the Court of Session. — Wallace v. Hope, Eobert. 91 (1714) ; Aff. See Landlord and Tenant, 27. 2. Case on the statutes passed in reference to the rebellion of 1815. — Lord Lovat v. Mackenzie, Eobert. 241 (1719) ; Eev. 5 Br. Sup. 12. FORFEITURE. 161 1 Geo. I. c. 20 : " If any subject of Great Britain holding lands or tenements of a subject-superior in Scotland, has been or shall be guilty of such high treason or treasons, every such offender who shall be thereof duly convicted and attainted, shall be liable to the pains, penalties, and forfeitures of high treason, and his lands or tenements held of any subject-superior in Scotland, shall recognosce and return into the hands of the superior, and the property shall be, and is there- by consolidated with the superiority, in the same manner as if the same lands or tenements had been by the vassal resigned into the hands of his superior ad perpetuam remanent iam.'' 3. On forfeiture of a mill to the superior under the above statute, the thirlage of lands held by the same vassal of a different superior does not pass with the miU. — Comrs. of Forf. Estates v. Duke of Hamilton, Kobert. 274 (1720); Eev. 4. Held that a disponee infeft base of the disponer, but holding also a procuratory of resignation for obtaiuiug entry with the disponer's superior, was not a vassal of the disponer in the sense of the above statute. — Comrs. of Forf. Estates v. Grierson, Eobert. 298 (1720) ; Kev. 5. Lands of an attainted person, held of a superior attainted at the same date, who was vassal to another subject-superipr, do not faU to this highest subject-superior, but to the Crown. — Comrs. of Forf. Estates v. Mackenzie, Eobert. 335 (1720); Eev. 6. The disloyalty of the subject-superior might be alleged, and two days was not enough to allow for the proof of disloyalty. — Comrs, of Forf. Estates v. Stewart, Eobert. 337 (1720) ; Eev. 1 Geo. I. c. 20 : " If any of his Majesty's subjects of Great Britain having lands or tenements in Scotland in property or superiority, shall be guilty of high treason, every such offender who shall be thereof duly convicted and attainted, shall be liable to the pains, penalties, and forfeitures for high treason, and every vassal and vassals in Scotland, who should continue peaceable and in dutiful allegiance to his Majesty, holding lands or tenements of any such offender who held such lands or tenements immediately of the Crown, shall be vested and seized, and are hereby ordained to hold the said lands or tenements of his Majesty, his heirs or successors, in fee and heritage for ever, by such manner of holding as any such offender held such lands or tenements of the Crown at the time of the attainder of any such offender.'' 7. Vassals of kirk lands who, although by the Acts 1633, c. 14, and 1661, c. 53, the superiority of them had been re-annexed to the Crown, had continued to pay their feu-duties to a subject-superior, held entitled to hold them, on his attainder, of the Crown, but paying the feu-duties to the Crown which they had paid to the subject-superior. — Comrs. of Forf. Estates v. Ogilvie, Eobert. 331 (1720) ; Eev. See Goal, 1. 162 FORFEITURE. 8. Question whether the Stat. 1 Geo. I. c. 20, was limited to the occasion of the rebellion of 1715. A disposition held onerous under the Stat, of 20 Geo. II. — Lord Advocate v. Lord Boyd, Cr. & St. 498 (1751) ; M. 14768. 9. A disposition (on which sasiae had Tbeen taken) granted by a trustee uninfeft, without consent of the beneficiary under the trust, divests the beneficiary so as to prevent forfeiture of the lands on his attaiader. — aomrs. of For/. Estates y. Hog, Rdbert. 341 (1721); Aff. 10. An agreement to seU. lands, followed by a disposition and receipt of the purchase-money and possession by the purchaser, though with- out taking infeftment, divests the vendor, and prevents the forfeiture on his subsequent attainder, — Oomrs. of For/. Estates v. Stewart, Robert. 342 and 345 (1721) ; Aff. 11. The Act 1690, c. 33, enacts " That aU estates forfeited shall be subject to all real actions and claims against the same to all true and lawful creditors, whether personal or real" A personal bond, unre- gistered, except as being included in the list of debts due to the creditor, on confirmation of his executor, forms a valid claim for the creditor under the act, against the real estate on the debtor's attainder. And the Stat. 1 Geo. I. c. 20, enacts " That no conviction or attainder shall exclude the right or diligence of any creditor remaining peaceable and dutiful for security or payment of any true, just, and lawful debt contracted before the commission of the crime." Held that it is not necessary for the creditor to prove that he remained peaceable. — Paterson v. Comrs. of For/. Estates, Robert. 349 (1721) ; Rev. 12. The estate of a person attainted is liable for sums necessary for his maintenance and defence prior to trial, although the attainder draws back to an antecedent period. — Comrs. of Forf. Estates v. Stevenson, Robert. 518 (1725) ; Aff'. 13. On forfeiture for treason, the estate and rights which were in the attainted person in trust only are not forfeited, and he may subsequently execute deeds in execution of the trust. — Lord Lovat v. Mackenzie, Robert. 607 (1727) ; Aff. 14. A tailzie prohibiting treasonable deeds, and irritating in case of treason only the right of the committer, but not of the heirs of his body, does not prevent forfeiture of the estate on attainder during the whole time that any heirs of the body of the party attainted should be in existence, and also whenever the succession should open to the heirs and assignees of the attainted heir. Declaration that the heirs of entail not being of the body of the attainted party, might apply when the succession should open to them, to the Court of Session for their rights. Attainder overrides any prior irritancy incurred by the party attainted not ascertained by declarator before attainder. English Judges FRAUD. 163 consulted. — Lord Advocates. Gordon, Cr. 4r St. 508 (1751) y R&o. M. 4728. 15. Under a destination in a deed of tailzie to the granter and the heirs male of his hody, the second son does not take as substitute on the attainder of his elder brother. A Second deed in which the second son was made a substitute, was ia this case held bad, as being unre- corded, and contaiaing the prohibitions, &c., only by reference. — Mercer v. Lord Advocate, Cr. & St. 538 (1753); Aff. Elchies v. Tailzie, No. 47. 16. A tailzied estate being forfeited by attainder of the heir in pos- session for his life and the lives of the heirs of his body, when the succession would in the ordinary course have opened to his sons bom abroad after the attainder, who, being consequently aliens, would be incapable of taking it, the right devolves at once upon the next heir not being of the body of the attainted party. Opinion of EngUsh Judges taken. — Gordon v. Lord Advocate, Gr. ^ St. 558 (1754); Rev. M. 4737. See Heir, 9.' 17. The son of an attainted party being restored to the estate, Question, "Whether he is bound by the deeds or warrandice of his father prior to attainder. — i>M/ v. Fraser, 5 W. Sf S. 5l (1831) ; Aff. 8 S. 14. See Coal, 1, 4 — ^Erboe of Law, 1 — Papist, 1 — Statute (Penat) — SUPBBIOE AND VaSSAL, 27. FEAUD. 1. A conveyance to an adjudger in possession, obtained from the debtor (who was in prison) for an inadequate price, set aside at the in- stance of the son of the vendor, the sums actually paid, with interest, being charged on the estate. — Gordon v. Crauford, Cr. ^ St. 47 (1730); Bev. 2. Eeduction of a deed obtained for inadequate consideration by a creditor who was using an accumulation of diligence, the debtor being in great penury, and of facile disposition. — Fergusson v. Maitland, Cr. # St. 73 (1732) ; Aff. M. 4956. 3. A lease being reduced by the judicial factor for the lessor, a com- pany, as granted by fraud on the part of the managers of the estate, and the lessee being a participator in the fraud, no claim for damages lies at his instance against the company under the warrandice in the lease. — Plaskett V. Stewart, 4 P. 214 (1801) ; Rev. 4. Although fraud may be made the ground of action after any lapse of time, yet lapse of time wiU afford a strong presumption against the allegation. — Irvine v. Kirkpatrick, 7 S. Bell, 186 (1850); Rev. 10 D. 367. l2 164 GAME. 5. A variety of conjectural estimates, on whicli a family arrangement was based (observed, however, not to be properly of that nature, for the parties were on bad terms), held not to amount to fraud, although, in the circumstances, they were long afterwards found to be not correct. Observations on the necessity of strict accuracy in pleading misrepre- sentation or concealment. — Irvine v. Kirlcpatrick, 7 S. Bell, 186 (1850) ; Rev. 10 D. 367. 6. A personal action of damages against a bank director for fraud, transmits against representatives in so far as they have assets. Opinion of Lord Cranworth, that it is unfortunate such is not also the rule in England.— Z)am(feo« v. Tulloeh, 3 M'Q. 783 (1860); Aff. 20 D. 1045. But see Superior and Vassal, 4. See Arbitration, 5 — Bankruptcy, 13, 14, 18, 19 — ^Husband and Wife, 42 — Minor, 1 — Personal Capacity — Prescription, 16 — Eeduction, 5, 6, 10 — Trust, 24, 25 — ^Wrongous Imprisonment, 4. GAME. 1. There is no right in the public, though qualified, to enter waste lands without the permission of the proprietor, for the purpose of sporting. — Livingstone v. Earl of Breadalbane, 3 P. 221 (1791); Aff. M. 4999. 2. Interdict refused against the Duke of AthoU hunting on certain grounds, being his property, and over which his right to hunt had been established by a decree arbitral, while the servitude of pasturage in them was established to be in the complainer; there being no allegation that the right of hunting was exercised invidiously. The Stat. 1 Geo. I. c. 54, does not apply to deer hunting where there is not an assemblage of numerous persons. The holder of the servitude of pasture is not entitled to bum the heather. — Eobertson v. Duke of AthoU, 4 P. 54, 6 P. 108, and 6 P. 135 (1798, 1815) ; Aff. 3. The owner of land adjoining to, and having right to a common, may drive deer off it to his own ground, in order to prevent another owner of the common killing them there. — Eobertson v. Duke of AthoU, 6 P. 72 (1814) ; Aff. F.G. 2M May 1810. 4. A right of himting and fowling is not a predial servitude, and cannot be carried under the clause of parts and pertinents, and if given in the tenandas of a charter only, but not in the dispositive clause, it is inoperative. Observations on the inconvenience of remitting on appeals. — Earquharson v. Earl of Aboyne, 6 P. 380 (1818); Aff. E.G. 16th November 1814. 5. A right of fowling and fishing may be given by express grant. GUARANTEE. 165 and if so given, it may be communicated to the Mends and senrants of the grantee, but it must be exercised so as not to injure the right of fowling, &c., remaining in the owner of the land. — Earl of Aboyne v. Innes, 6 P. 444 (1819) ; Aff. E.G. nd June 1813. ^See Servitude. GUAEANTEE. 1. In an action on a guarantee two defences were made — \st, That it was for an individual and not for a company of which he was a part- ner, and by the bankruptcy of which the loss was incurred. 2d, That it was delivered to a third party for transmission to the grantee, and was recalled before actual delivery to him. Defences sustained. — Douglass v. Gh-ant, 2 P. 351 (1774) ; Aff. 2. Bills given by a company to a guarantor for them, but not en- dorsed, and returned by him to one of the partners as an individual, to be kept for the guarantor, may be recovered by the guarantor on the company's bankruptcy in preference to their creditors. — M'Dowal v. Annand, 2 P. 387 (1776); Rev. 3. A letter of guarantee of payment, both of past and future mercan- tile transactions, is a document in re mereatoria, and valid though not probative.— "Wright v. Paterson, 6 P. 38 (1814); Aff. F. C, 31st January 1810. 4. A guarantee, with assignation in security, being withdrawn be- fore it is accepted, and a different one substituted, the former cannot be acted on. — Grant v. Campbell, 6 Dow, 239 (1818) ; Bev. 5. Circumstances in which a guarantor for a bill delivered but not endorsed, held to be liable for the amount, and that fraud and not error must be averred to relieve the guarantor. — Mathie v. Muir, 2 S. Ap. 97 (1824) ; Aff. 6. A guarantee by A. to indemnify B. against any liability to C, does not give C. any right to proceed against A. in respect of B.'s debt. — Ewingv. Bums, M'L. # B. 435 (1839) ; Bev. 15 S. 936. 7. A letter guaranteeing payment of the sum contained in a bond, on condition of having the bond assigned to the guarantor on making payment, is not a cautionary but a principal obligation, and does not fall within the septennial prescription. — Wilson v. Tait, 1 Eobin. 137(1840); Aff. 15 S. 221. See Cautioner. 166 HEIRS. [Destination to Heirs. HEIES. IV. Service and Titles, p. 172 V. Representation, . . .175 VI. Apparent Heiu, . . . 176 VII. OOIXATION, . ... 176 I. Destination to Heirs, p. 166 Alteration by Prescrip- tion 168 II. Description of Heirs, . 169 III. Ebvocation OP Disposition, 171 I. Destination to Heirs. 1. A simple destination may be altered by a gratuitous settlement, but such, alteration, though effected by a mutual contract between father and son, may, while not followed by infeftment, be revoked by both, or if by a deed of tailzie containing a power of revocation, by the father alone after the son's death. — Hamilton v. Hamiltons, Eobert. 493 (1724) ; Eev. M. 14360, 14929. 2. I^either a clause of return in a marriage-contract, nor a gratuitous destination unfenced, nor a destination in a marriage-contract (as regards others than the heirs of the marriage), prevents an alteration in the destiaation of the estate by an heir succeeding — Marquis of Clydesdale v. Earl of Dundonald, Eobert. 564 (1726) ; Aff. M. 1262. 3. A disposition to a son and his heirs male, in which the son is infeft either base or publicly, although the sasine is not duly registered, and although the disposition contains a clause of return failing heirs male of the son, and reserves the father's liferent in the lands, and power to sell and dispone thereof, and to charge the same with debts without the son's consent, prevents the father, after the son's death leaving an heir male, from gratuitously conveying the lands on a new destination ; and the title on such new destination cannot be fortified by infeftment and prescription in the hands of an heir holding tmder both titles, so as to take the lands out of the hereditas jacens of the son on the succession diverging. — Marquis of Clydesdale v. Earl of Dundonald, Eobert. 564 (1726) ; Aff. M. 1267. 4. A person cannot on deathbed, nor in minority with consent of his curators, gratuitously alter the destination of his estate in an un- registered bond of tailzie. — Marquis of Clydesdale v. Earl of Dun- donald, Eobert. 564 (1726) ; Aff M. 1267. 5. A mortis causa conveyance of aU lands that should belong to the granter at his death in favour of his brother and his heirs whatsoever, does not apply to the estate of the brother, which, on his predecease, came to the granter of the deed under a destination to heirs male, which was not specially altered by any deed made after his succession. — Mearns ?;. Farquhaxson, 6 P. 724 (1759) ; Aff. M. 2290. See Deathbed, 19. 6. A brother having gratuitously disponed his estate away from his own sisters and heirs general, and the disponee being infeft, absolvitor Destinatvm to Ueirs^ HEIRS. 167 in an adjudication on a trust-bond granted by tbe sister, on the ground of a renunciation executed by her, forms a bar as res judioata against a reduction of the disposition brought by her son, and the son is bound by her renunciation, although in making up his title he would have passed her by. — Gordon v. Ogilvie, 2 P. 61 (1762) ; Aff. M. 14070. 7. Adjudications being purchased by the owner of the estate, which stood destined to heirs male, and the title to them being taken to heirs whatsoever, they do not, on his death, pass to his heirs of line, but' descend to the heir male who takes the estate. — Burnet v. Burnet, 2 P. 122 (1766) ; Aff. 8. A destination with prohibitory, resolutive, and irritant clauses against altering the order of succession, does not bar an heir taking under it from executing gratuitously a new destination passing over his eldest son, who would have succeeded under the original destina- tion, but who is a lunatic, but not otherwise altering the order of suc- cession. — Wedderburn V. Halket, 2 P. 231 (1770) ; Eev. M. 15416. 9. A sale of an estate by the proprietor infeft, as heir of provision of a party attainted, cannot be set aside on the groimd that, after he had made up his titles as nearest heir under the destination, an heir stiU nearer was bom.- — M'Kinnon «. Macdonald, 2 P. 252 (1771); Aff. M. 5279. See Entail, 215. 10. A post-nuptial contract of marriage settled the husband's estate on the heirs male, whom failing, on the heirs female, with power, if more than one daughter, to settle the estate on any one. There was only a daughter of the marriage, and the father settled the estate on her second and third sons. Held that this deed was reducible by her eldest son, as exceeding the powers reserved in the contract. — Cunyngham V. Cunyngham, 2 P. 434 (1777) ; Aff. M. Clause, Ap. ISTo. 1. 11. A deed revoking all prior settlements of an estate, and declaring that it is executed in order that, on failure of the revoker's heirs male and female of his body, the estate should descend according to the ancient investitures, is not a deed of settlement, and the mention of heirs female has no effect on the question whether heirs female succeed or not.— Duke of Hamilton ». Douglas, 2 P. 449 (1779) ; Aff. M. 4358. 12. The heir of a marriage taking under a post-nuptial destination not fenced by prohibitory clauses, may gratuitously alter the succession. — Whitefoord v. Whitefoord, 3 P. 101 (1788) ; Aff 1 3. An investiture of an estate may be competently changed by deeds intended primarily to operate only for the creation of votes. — Eose v. Eose, 3 P. 66 (1787) ; Aff M, 14955. 14. A charter, though obtained for political purposes, is effectual to change the destination of the estate. — Cathcart v. Earl of CassilHs, 1 W. & S. 239 (1825) ; Aff M. 14447. See Trust, 5. 168 HEIRS. [^Destination to Heirs. 15. A description of lands being altered ia a crown charter, foUow- ing a service, and declared to contain certain other lands, the descrip- tion is not binding on third parties. — Stirling v. Alexander, 1 S. Ap. 482 (1823) ; Aff. See Prescription, 17— Property, 9. 16. A charter, if disconform to its warrants, does not alter the desti- nation, and the words heirs male may be read as if heirs male of the body.— Drummond v. Drummond, 3 P. 557 (1797) ; AS. M. 6936. 17. In a deed granting a liferent of part of his estate, the grantor used the words, " and I do recommend to A. who is heir first appointed to succeed me," but without dispositive words. Held that these words were not a nomiuation of A. as heii'. — Mercer v. Ogilvie, 3 P. 434 (1796) ; Aft M. 3336. 18. An heir cannot challenge the conveyance of his ancestor when, by the destination of the estate it set aside, there are nearer heirs. • — M'Callum v. Campbell, 4 P. 32 (1798) ; AS. M. 16135. 19. A service as heir of line does not alter a destiaation contained in a disposition by the ancestor, but it may be altered by a charter expede by the party who has served on a conveyance to a trustee, and recon- veyance by him. iu favour of heirs whatsoever. A disposition to a daughter in liferent and her heirs naseituris in fee, gives her the fee. A general fectory gives power to serve heir. — Molle v. Eiddell, 6 P. (1816) ; AfP. F. C. 13th Dec. 1811. 20. Under a destination in a post-nuptial contract of marriage to the heirs male of that or any other marriage, whom failing, to the heirs female of the marriage, an only daughter may discharge her right of succession after her marriage, but before majority and in her father's life, although inhibition has been used by the trustees of the contract. An entail held cut off by positive and negative prescription. — Majendie V. Carruthers, 6 P. 597 ; 4 Dow, 392 ; 2 BHgh, 692 (1820) ; Aff. r.C. 16th Dec. 1819. See Husband and Wife, 34. 21. Under a clause in a marriage-contract, providing that if the heir called to the lady's estate should succeed to the husband's, the former estate should devolve to the second son, it is competent for the heir in possession of the former, before the case for devolution arises, to enter into an onerous contract resettling the estate without reference to the clause of devolution, and on that being done, the clause of devolution will not take effect. — Hastings v. Marquis of Hastings (Rowallan), 6 S. BeU, 30 (1837) ; Aff. 7 D. 1. See Entail, 57. See Entail — Pebsonal Capacitt, 2. Alteration by Prescription. 22. Where a party has unrestricted right to two titles to an estate, one as heir under a marriage-contract, the other as heir of investiture, Description of Heirsl] HEIRS. 169 he may adopt either, and deal with the estate in virtue thereof without challenge from the heirs of the other investiture. — Edgar v. Maxwell, Cr. & St. 334 (1742) ; Aff. M. 3089. See 3— Prescription, 13, 14. 23. Special services as heirs of line, for a period ahove forty years, do not work off a destination in the original charter to heirs male or female without division, and therefore heirs portioners are excluded on the succession opening to daughters. — Durham v. Diirham, 5 P. 482 (1811); Aff. M. 11220. II. Description of Heirs. 24. The words " eldest heir female of the body," signify the son of the daughter of the eldest son, and not the daughter of the maker of the destination, nor the daughter of the last heir male who had taken under the prior substitutions. — Dabymple v. Hope, Cr. & St. 237 (Bargany) (1739) ; Eev. Elchiesw. Provision & Heirs, No. 2. 25. The son of a daughter is not an " heir female," if the deed obviously intends the words " heir female" to be synonymous with daughter only. — Forbes w. Skene, Cr. & St. 628 (1757) ; Aff. 26. A destination in the settlement of an estate to the settlor's sister in liferent, and her son by a first marriage, and to his heirs and assignees in fee, whom failing, to her son by a second marriage, and his heirs and assignees, carries the estate to the heirs of line of the son by the first marriage, on failure of the heirs of his body, in preference to the son by the second marriage. — Chatto v. BaUlie, 2 P. 243 (1770) ; Eev. M. 14941. 27. The heir of line is called under a destination made by an un- limited fiar to heirs and assignees whatsoever, although the existing investitures were to heirs male. — Duke of Hamilton w. Douglas, 2 P. 449 (1779) ; Aff. M. 4358, 12350. 28. Parole evidence to interpret a destination to " heirs and assignees whatsoever" rejected. — Dulce of Hamilton v. Douglas, 2 P. 449 (1779) ; Af. M. 4358, 12350. 29. The words "heirs male" have a strict technical signification, which is not to be extended by apparent, but not necessary, evidence of being used in a different sense. — Hay «. Hay, 3 P. 142 (1789) ; Aff. M. 2315. 30. Under a substitution " to the eldest daughter of the said A. , with- out division, and their heirs male, whom aU failing, and their said heirs male, to our nearest and lawful heir male whatsoever," the heir male of the body of a third daughter takes, on the failure of heirs male of the bodies of the two elder daughters, before their heirs male in general, and before the final substitution comes into operation. But the heirs female of a daughter are not included in the word daughter. Obser- 170 HEIRS. [Description of Heirs- vations on case of Hay ». Hay (No. 29). — Ker v. Imies (Eoxturgh), 5 P. 320 (1810), and 579 (1812) ; Aff. M. Tailzie, Ap. 1, No. 13. 31. Terms of a destiaation and clause of devolution under wHch it was held that the estate passed to a second son of the elder brother of the last holder, rather than to the eldest son of the same brother, so as to devolve on his second son. — Marquis of Bute v. Wortley, 4 P. 450 (1803) ; Aif. 32. A provision to " daughters and heirs female, one or more," is payable to an only daughter, although she does not succeed as heir female. —Watsons. Glass, 6 P. 681 (1744) ; Aff. M. 2306. 33. A destination to heirs male held effectual, although in certain events the terms in which it was conceived might lead to contradictory conclusions. — Murray y. Carlyle, 6 P. 780 (1770) ; Aff. 34. Under a destination to " A., the heirs male or eldest heir female, lawfully to be procreated of his body," the daughter of A.'s eldest son takes before A.'s second son. — Leslie v. Leslie, 6 P. 792 (1774) ; Aff. 35. A destination in a marriage-contract to the heir male of the mar- riage, and to his heirs and assignees whomsoever in fee, whom failing, to the heir male of a second marriage, and the heirs of his body, whom failing, to the heir female or eldest daughter of the marriage and the heirs of her body, the eldest daughter always succeeding without division, carries the estate, on the death of the only son of the marriage after his succession, to his sisters as his heirs portioners, and not to the eldest sister as substituted to his heirs whomsoever. — Stewart v. Stewarts, 2 S. Ap. 149 (1824) ; Aff P. C. 5th July 1821. 36. A word of fixed import in the dispositive clause will not be revoked by a word of flexible import in the procuratory, and thus the word " descendants" in the latter will not let in heirs female, when the destination is to " heirs male'' in the former. — Grahame v. Grahame, 1 W. &S. 354(1825); Aff. 37. Under a destination (the settlor having only three daughters, A., B., and C.) to the eldest son of A. living at his decease, whom failing, to the eldest son of B., whom failing, to the eldest son of C, whom failing, to the second son of A., of B., and of C, whom failing, to the heirs male of A., of B., and of C, in the same order ; the fourth son of A. takes before the third son of B., firstly, because he has become the eldest son at the time of the succession opening, and, secondly, because the heirs male of the eldest are preferred before the third sons of the younger, in the terms of the deed. — Shepherd v. Grant, 3 S. & M'L. 255 (1838) ; Aff. 15 S. 173. 38. Under a destiaation to " the heirs male of the body and the heirs whatsome ver of the body of the said heirs male, whom faiUng, to the heirs female of the body,", the heirs whatsomever of the body of the first Revocation of Dispqdtioni] HEIRS. 171 heir male take before the second heir male. (Per Lord Cottenham) — It would have been different if "whom failing" had been used instead of " and."— Lockhart v. Macdonald, 1 S. Bell, 202 (1842) ; Aff. 2 D. 377. 39. Trustees of a mortis causa settlement heiag directed to convey the residue, real and personal, to A., her heirs and assignees, and hy a codicil the testator having " disponed and bequeathed B. as successor to A.," held that the fee vested ia A. with a substitution only in favour of B. — O'BeillyY. Baroness Sempill, 2 M'a 288 (1855) ; Aff. 15 D. 789. See Peer, 2, 3. III. Eevocation of Disposition. 40. In an action by a widow against her father-in-law for exhibition of a disposition he had granted to her husband, on a reference to oath he deponed that he had granted it when in prison under the Test Acts, and with a view to save his estate from forfeiture, and that he had de- livered it to his wife to be kept for use, if required, and had cancelled it and the sasine thereon before leaving prison ; held that the cancel- ling was warrantable and the qualifications of the oath admissible. — MuirheadY. Muirhead, Robert. 4 (1809) ; Aff. M. 11504. See Proving the Tenor, 6. 41. A disposition to a son in liferent and to his second son in. fee, on the narrative that the son had agreed to pay off a debt on the estate, is not made void by the fact that the debt is extinguished by the creditor's intromission with the rents. — Heron v. Heron, 2 P. 189 (1770) ; Rev. 42. The heritable and moveable estate being conveyed by deed of settlement to the settlor and the heirs of his body, whom failing, to certain substitutes, with clause dispensing with deHvery, in so far as the deed might be unrevoked, a subsequent marriage-contract by the settlor, in which his estate is settled on the eldest son of the marriage, does not revoke the original settlement, and on the predecease of the only child of the marriage, the estate goes according to the original to it. Neither does the sale of part of the estate included in it amount to revocation as to the rest. — Allan v. Sinclair, 2 P. 403 (1776) ; Aff. 43. A mortis causa disposition of heritage in Scotland, containing a power to alter and to nominate heirs by any writing under the granter's hand, is not revoked by a will executed in the English form in Eng- land, revoking aU other wiUs and testaments, nor by a deed of entail also executed in England, but invalid to convey heritage, by which the estate was conveyed to a different series of heirs. A deed of nomination is ineffectual unless it refer to the deed which gives the power to nominate, and a reserved power to alter is a power only to dispone anew, and not to engraft alterations on the original deed. 172 HEIRS. [Smvrice aiid Titles. (Per Lord Thurlow.) — Wilson v. Henderson, 4 P. 316 (1802) ; Bev. M. 15444. 44. A reserved power to alter vrill not authorise an alteration by an improtative deed. — Wilson v. Henderson, 4 P. 316 (1802); Eev. M. 15444. 45. A conveyance of heritage in Scotland cannot he revoked hy a deed not executed according to the law of Scotland. — Dundas v. Dundas, 2 P. 618 (1783) ; Rev. M. 15585. 46. A disponee under a deed reserving the granter's liferent, hut delivered, is entitled to reduce, on the head of vitiation, a suhsequent dis- position. — Howie w. Merry, 5 P. 101 (1806); Aff. M. Writ, Ap. No. 3. 47. A conveyance by a purchaser at a judicial sale, but uninfeft, of the lands and decree of sale to his wife and her heirs, is not vacated in a question between her and his heirs, by his taking subseqiiently a crown charter to himself and his heirs and assignees, and such con- veyance by the general name of the lands will include all that appeared to be intended to pass, although part of it weis strictly known by a different name. — M' Arthur v. Jamieson, 1 W. & S. 59 (1825) ; Aff. 2 S. 23. See EntaU, 21. See FoEEiGN, 11 — ^Trust, 10. rV. Service and Titles. 48. A retour as heir male and of provision does not make the heir liable to warrant his father's deeds as if heir male merely. — Home v. Home, Eobert. 47 (1712); Aff. M. 5236, 12900. 49. Under a disposition to a person and his heirs of the body, whom failing, to and his heirs and assignees, on failure of the first line, the heir of line of the disponer must serve as heir of provision to hiTn A service in special, " tanquam legitimus etpropinquiw liceres,'' includes service as heir of provision. — Hamilton v. Boswell, Robert. 192 (1717) ; Aff. 50. Service in special cum beneficio, as " legitimus et prqpinquioi- hceres " of his father in certain lands, contained in the marriage-con- tract with his mother, but the inventory including other lands, is not service merely as heir of provision, but as heir of line, and so prevents a challenge of any of the father's deeds by the heir. — Ayton v. Col- viU, Eobert. 221 (1718) ; Aff. M. 14009. 51. A party holding lands by a personal title under a destination, having for political purposes obtained a crown charter of the supe- riority to himself and his heirs whatsoever, held that a general service as heir male and of line to him carried the personal title under the charter, and therefore enabled the party served to alter the destination. But (after remit), held that a general servrice as heir male and of hue does Service and Titles.'] HEIRS. 173 not include service as heir of provision, even where the heir male is also the heir of provision. — Blane v. Earl of Cassillis, 5 P. 1 (1805), and 307 (1810) ; Eem. M. 14447, and M. Service of Heirs, Ap. ISTo. 2. 52. A general service as heir male and heir of line is not equivalent to a service as heir of provision, even though all the facts are proved which would require to be proved had the claim been expressly as heir of provision. — Cathcart «. Earl of Cassillis, 1 W. & S. 239 (1825)'; Aff. M. 14447. 53. In a reduction of a retour finding that the claimant has failed to prove himself heir, another claimant, though not called as defender, is entitled to be sisted for his interest. — Murray v. BullerweU, Eobert. 436 (ex p.) (1723); Eev. 54. An estate being sequestrated, pending an action for establishing the legitimacy of the late proprietor's son, the sequestration was re- called, and the tutors of the son put in possession on the legitimacy of the son being established, although an appeal on the question was pending in the House of Lords. — Macadam v. Walker, 5 P. 673 (1813); Aff. &e Appeal, 17. 55. Two parties having served to the same ancestor, one service was, on evidence, reduced, and an appHcation for leave to give further evi- dence refused. — Whyte v. Stewart, 5 P. 60 (1806) ; Aff. 56. Where a party deceased has left an improbative disposition of his estate to a charity, the trustees of which applied to the Crown for a gift of uUimus hceres, and a distant relative of the deceased served heir to him ; remit to consider whether the charity trustees could re- duce such service before their title under the deed was established, and whether, in order to support the service, it was necessary to prove a precise line and particular degree of propinquity, or whether evidence of repute that a family from which he traced descent was the same family as that of the deceased was sufficient. — Eichan v. Traill, 5 P. 239 (1808) ; Eem. 57. Trustees infeft, and a singular successor under a deed by the last heir, are entitled to appear and be heard for their interest in a competi- tion of brieves. — Ker v. Innes (Eoxburgh), 5 P. 320 (1810); Aff. M. Tailzie, Ap. No. 13. 58. Eeduction of service dismissed on the evidence. — Alexander v. Mark, 6 P. 444 (1819) ; Aff 59. A service reduced on the ground of its being unsupported by the evidence. — Hunter v. Hunter, 1 S. Ap. 459 (1823) ; Aff. 60. Eeduction of service on an allegation of bastardy dismissed, there being no direct proof of the marriage, but the weight of evidence of habit and repute being in favour of legitimacy. — Lindsay v. Kerr, 2 S. Ap. 147 (1824) ; Aff. 174 HEIRS. [Service and Titles. 61. An heir of linp, is not entitled to pursue an action ad exhibendum of the titles after production of a tailzie excluding him until he reduces the tailzie. — Cathcart v. Earl of Cassilis, 1 "W. & S. 239 (1825) ; Aff. M. 3993. 62. General service to a party infeft hase carries an unexecuted pro- curatory, and infeftment thereon is infeftment only in the superiority, the dominium utile remaining in Jiereditate jacente untU consolidated by resignation ad remanentiam. — Ker's Trustees v. Kers, 1 W. & S. 381 (1825) ; Aff. 2 S. 369. 63. Where one person has already expede a general service, it is in- competent for another to expede a second general service to the same ancestor, and such second service is reducible, and is not evidence of propinquity. — Cochrane v. Eamsay, 4 W. & S. 128 (1830); Eev. 6 S. 751. 64. An entail called as substitute a Major Hugh Galbraith, in the kingdom of Ireland, the entailer's cousin, and on failure of the prior substitutes the succession opened about a hundred years afterwards to his line ; held that evidence that the claimant's ancestor was at that time settled in Ireland, a major, and known as a Scotsman, was, in the absence of evidence to the contrary, sufficient proof of identity. — Oal- braith v. Galbraith, & W. ^ S. 84 (1831) ; Aff. 4 S. 734. 65. Two parties having served heir (through different Hnes) to the common predecessor, although the one first served had lodged a caveat against any other service, but had not received intimation of the second petition being presented, and both having brought reductions of the competitor's service ; remit to the Court to direct one or more issues to try which had right, and to direct on which should be laid the burden of proof. Costs of both parties ordered to be paid out of the estate by the judicial factor on the estate. — Watson v. Watson, 7 W. & S, 535 (1835) ; Eev. 13 S. 543. 66. Question undecided, after remit to consider whether a party taking as nominatim disponee after failure of a prior nominatim dis- ponee in the lifetime of the disponer, the deed having been undelivered, is conditional institute or substitute, and whether he ought to make up a title by service to the predeceasing disponee or in what other way, and, if he so served, whether he had a title enabling him to make a vaUd entail ; but held that either by such service, or by the personal title vested in him as disponee, he could validly make an entail. Ob- served that at any rate a declarator is unnecessary. Observed by some of the Peers that such a point should be settled by the House, though it was not absolutely necessary for the decision of the case. — Fogo v. Mather, 2 Eobin. 440 (1841) ; Eem. 2 D. 651. Fogo v. Fogo, 2 S. Bell, 195 (1843) ; Aff. 4 D. 1063. Eepresmtation.J HEIRS. 175 67. After the verdict of a jury iu a service the Court is entitled, on a reduction, to consider the evidence, but if it is conflicting a new trial ought to he ordered. — M'Lean v. Ofiicers of State, 5 8. BeU, 60 (1846) ; Eem. See Alien, 1 — Fee and Liferent, 9 — Landlord and Tenant, 33 — Legitimacy — Phescription, 4, 5. V. Ebprbsbntation. 68. A disposition to a son who died minor and unmarried after taking infeftment, but without- recording the sasine, and no possession havrag followed, is reducible by creditors of the father's heir who had served to him and been infeft in and possessed the estate after the son's death.— Douglas v. Montgomerie, Robert. 99 (1714) ; Aff. M. 13564. 69. A father having entailed his estate on his son and his heirs male, reserving his own liferent, and the son having bound himself and his heirs personally to pay his father's debts, and on the death of the father and son the estate, real and personal, being taken possession of by one of the father's creditors on a disposition a non domino. Held that this is not a vitious intromission relieving the son's heirs from liability, and that the creditor is entitled to payment of his debts, ac- counting only for his actual intromissions, and beiug liable to pro- ceedings if he is proved to have abstracted or taken any particular paper out of the charter chest. — Maxwell v. Houston, Eobert. 539 (1725); Eev. M. 9863. 70. An eldest son joiniag with the special disponee in granting dis- charges, does not become Hable under the passive title of gestio pro herede. — Cleik v. Gordon, 3 P. 61 (1787) ; Eem. M. 9734. 71. Bonds over estates, part of which go to the heir male and part to the heir of hne, are to be paid proportionably by each. — Eose v. Eose, 3 P. 66 (1787) ; Eev. M. 5229. See Entail, 152. 72. After service, the lodging of an inventory, within a year from the ancestor's death, under the Act 1695, c. 4, does not protect from universal representation, and the taking of assignations to the prede- cessor's debts, or payment of them by the successor, does not, without more, keep them alive as burdens on the estate. — Codrington v. Johnstone, 2 S. Ap. 118^1824) ; AS. F. C. 11 Feb. 1818. 73. When an heir-at-law, in order to take benefit by a will which does not affect the landed estate, but raises a case of election in regard to it, makes up his title to the estate for the purpose of collating it with the property passed by the will, he becomes hable on the passive title. —Lrvine v. Kirkpatrick, 1 Eobin. 475 (1841) ; Aff. 16 S. 1200. Sqq 48 — Bona Fide Possession, 1 — Forfeiture, 17 — Minor, 5 — Prescription, 1 — Trust, 6. 176 HEIES. [GullatioH. VI. Apparent Heir. 74. An heir passing by an ancestor who had. been three years in possession iminfeft, and had executed a gratuitous entail, and serving to a remoter ancestor last seized, is not hound to implement the tailzie. — Marquis of Clydesdale v. Earl of Dundonald, Eobert. 565 (1726) ; Aff. M. 1274. 75. The Act 1695, c. 24, does not apply to gratuitous ohligations incurred by an apparent heir, such as penalties in an agreement, but it does apply to onerous obligations, although the apparent heir at the time of incurring them possessed upon a feudal title, which was only reduced after his death, and without rehef (in the special circumstances) against the executry. — Marquis of Annandale v. Earl of Hopetoun, Cr. & St. 235 (1739) ; Eev. Elchies v. Mutual Contract, No. 12. 76. Lands possessed in apparency for more than three years are liable to the debts of the heir so possessing, even although his heir does not make up a title to the lands at all. But lands of which the liferent was during the whole apparency in another are not liable. A minor heir- apparent may reduce adjudications led on his predecessor's debts, so far as concerns their personal effect, but not as regards the lands which he inherits. — Grant v. Sutherland, Cr. & St. 416 (1749) ; Eev. M. 5265. 77. The widow of one who had possession for more than three years on apparency is not entitled to sue the next heir for her jointure, he being unentered, and the estate being alleged to be in natural possession of the widow herself. — N.B. This is treated by More, Notes on Stair, cccxxxv., and BeU, Illm. § 1929, as reversing the prior decision. No. 76, but there are specialties in this case unnoticed by these authors. — Grant v. Sutherland, Cr. & St. 605 (1755) ; Aff. M. 9819. See Bankruptcy, 53 — Entail, 139 — Husband and Wife, 22. VII. Collation. 78. An heir is not obliged to collate the heritable estate in Scotland on claiming right to a share in the personal estate of his father, domiciled in England. — 5aZ/oMrv. Scott, 3 P. 300; 6 Br. P.O. 550 (1793) ; Eev. M. 2379 and 4617, 79. By ante-nuptial contract on a second marriage (there being two children of the first) the husband declared that the children of the in- tended marriage should succeed to an equal portion along with the children of the first, of his whole estate heritable and moveable. There were two children by the second marriage. Remit to consider whether the eldest son by the first marriage was entitled to the heritage, or was subject to coUation, and whether the second child was entitled to a fourth, and was in that case bound to collate a special provision that HEIR AND EXECUTOR. 177 had teen made for her. — Bannerman v. Bannerman, 4 P. 662 (1805) ; Mem. 80. An heir of entail, being also heir of line, must collate the entailed estate in claiming a share of the personal estate of the last owner, or legitim, and this whether he happens to he heir of line of 'the original entailer or not. — Anstruther v. Anstruther, 1 S. ^ M'L. 463 (1835) ; and 2 & ^ M'L. 369 ; 4 CT. ^ Fin. 33 (1836) ; Aff. 14 S. 272. Marquis of Breadalbane v. Marquis of Chandos, 2 S. ^ M'L. 377 ; 4 CI. 4- Fin. 43 (1836) ; ^/: 14 S. 309. See 72 — Foreign, 8, 9, 10 — PEOvisiONa to Children, 6. HEIE AND EXECUTOE. 1. Where a deed of tailzie and a general settlement of moveahles each contain a clause charging the disponee with payment of aU the settler's debts, they are to be paid out of that estate respectively which would, without such clause, have been liable. — Campbell v. CampbeU, Cr. & St. 436 (1749) ; Aff. M. 5213. See Entail, 152. 2. The executor, and not the heir, of one dying in apparency, is en- titled to arrears of rent. — Hainulton «;. Hamilton, 2 P. 137 (1767); Eev. M. 5253-4. 3. A direction in a will executed in England, that the executors shall pay all the testator's debts, does not apply to an heritable debt upon the real estate in Scotland disponed by the same deed. — Frazer V. Spalding, 5 P. 642 (1812) ; Aff. M. Heir and Exeeutor, Ap. No. 3. 4. A sale of land, investment of the price in the Government funds in order to await the expiry of six months' notice to an heritable creditor of an intention to pay him off, and letters stating that the sum was to be so applied, bind the executor to apply it to the payment of the heritable debt. — J?«H ofMinto v. Elliot, I W. ^ S. 678 (1825) ; Aff. 2 S. 180. 6. The purchaser of an estate having agreed, as part of the price, to pay off an heritable debt upon it, and afterwards granted a personal bond of corroboration for the debt, his heir is bound to relieve the executor of the debt. — Clayton v. Lotothian, 2 W. 4r S. 40 (1826) ; Aff. 3 S. 271. 6. When the owner both of an entailed and an unentailed estate left his personal estate to his younger children, and also bound himself and the heirs succeeding in real estates, to pay a certain provision to yoimger children, it forms a burden on the heir of the heir first taking them, without rehef against the executor of such heir. — Lord Macdonald v. Macdonald, 1 S. & M'L. 341 (1835) ; Aff. 10 S. 584. 7. The clause in the 4 and 5 Will IV. c. 22, directing the appor- tionment of rents between the executor and heir, on the last owner M 178 HERITABLE AND MOVEABLE. [Bi/ Character. dying between the terms of payment, applies to Scotland, being ex- pressed to apply to all payments in Great Britain and Ireland, although the language used is that of English law, and the preamble declares the intention to be to amend a statute which applied only to England. —Fordyce v. Bridges, 6 S. Bell, \;\H.L. Ga. 1 (1847) ; Aff. 6 D. 968. 8. The 4 and 5 Will. IV. c. 22, applies to heirs of entail in possession. — BaUUe v. Lockhajt, 2 M'Q. 258 (1855) ; Aff. See Entail, 128, 134. HEEITABLE AND MOVEABLE. I. By Character, ... p. 178 | II. Br Conversion, ... p. 179 I. By Character. 1. A bond to a husband and wife and the longest liver in liferent, and their daughter nominatim in fee, whom failing, to the husband, his heirs, executors, and assignees, is moveable ; and the tutor for the daughter, in taking an heritable bond of corroboration for it, may pro- perly take it to the daughter and the heirs of her body, whom failing, the executors of her father nominatim, so as to save them the necessity of confirming or serving. — Stevenson v. Eife, Eobert. 216 (1718) ; Aif. M. 14852. 2. The phrase in a settlement, " All my goods, gear, debts, sums of money, corn, cattle, and other effects, which shall belong to me at the time of my decease, of what nature or kind soever they are," does not include heritable bonds or debts secured by adjudication. — Eoss v. Eoss, 2 P. 254 (1771) ; Aff. M. 5019. See Husband and Wife, 48. 3. The public funds of Great Britain are moveable estate in Scot- land. Query as to French funds. — Hog v. Lashlmj, 3 P. 247 (1792) ; Aff. M. 8193. 4. Query, Whether an English bond, on which adjudication has been taken in Scotland, is moveable or heritable, so as to pass or not by an English will made by a domiciled Englishman. — Martin v. Martin, 3 P. 421 (1795). 5. An obligation to purchase an estate, and out of the price to pay the vendor's debts, moveable and heritable, as well as certain debts for which the purchaser was liable jointly with the vendor, forms a move- able debt in computing the 'mAom'sjus relictm. — Lowthian v. Eoss, 3 P. 621 (1797) ; Aff. 6. Money remitted by a Scotsman domiciled in India to his attor- neys in England, to be laid out in security on land, and which was invested by them in heritable securities in Scotland, the titles being taken to them in trust for their client several years before his death in By Conversion.] HERITABLE AND MOVEABLE. 179 India, does not pass by his will executed in India, b,ut is heritable estate.— ^2/c?e v. Davidson, 4 P. 63 (1798) ; Aff. M. 5597. 7. Observations by Lord Loughborough on the inconvenience of securities over real estate being considered heritable, and not passing by will. — Crawford v. Coutts, 4 P. 100 (1799) ; Rem. 14958. 8. An heir of entail in possession may assign by an English deed his life-interest in the interest of sums derived from the sale of part of the estate for the redemption of land-tax, the surplus of which had been invested in heritable bonds in Scotland, and the assignation is prefer- able to a subsequent general trust-deed for creditors. — Scott v. Allnutt, 5 W. 4- S. 416 j 2 Dow ^ Clark, 404 (1831) ; Aff. 6 S. 62. 9. A steam-engine and machiuery iacluded in a lease of premises pass by judicial sale of the premises and pertinents. — Cox v. Stead, 7 W. 4 S. 497 (1834) ; Aff. 11 S. 672. 10. The engines and machinery of coal or other pits, of iron-works, of com and thrashing mills, whether erected on property leased or in fee, and whether erected by a trading company or not, including all the smaller portions and tools used for the particular engine, are heritable, but duplicate parts and tools are moveable as regards legitim. Machinery taken by a tenant at a valuation, and to be left by him at a valuation, is moYeahle. — Fisher ^r. Dixon, 4 S. Bell, 286; 12 CI. ^ Fin. 312 (1845) ; Aff. 5 D. 775. 11. Opinion by majority of Lords that a sum invested in an assigna- tion of an heritable bond taken to trustees is heritable as to the succes- sion of the truster. — Johnston v. Johnston, 3 M'Q. 619 (1860) ; Aff. 19 D. 706. 12. The right to a share of heritable estate vested in trustees is heritable, and must be taken up by service, in order to take it out of the hereditas jacens of the last holder. — Buchanan v. Angus, 4 M'Q. 374 (1862) ; Aff. 22 D. 979. See Ereok of Law, 8 — Provision to Children, 15 — Eanking and Sale, 2 — Eeal Burden. II. By Conveesion. 13. In a trust settlement of real and personal estate a power to sell, if not given expressly, or by necessary implication, is not to be pre- sumed, and directions to pay debts apd to invest the proceeds of the real and personal estate in land to be entailed, does not amount to a power to sell unentailed estates for that purpose, and these therefore pass to the heir-at-law. — Allan v. Glasgow's Trustees, 2 S. ^ M'L. 333 (1835); Eev. 10 S. 438. 14. A conveyance of lands to trustees, with power to seU after the truster's death, and to pay debts and provisions, and then to denude M 2 180 HOUSK OF LORDS. [Authority of Judgments. themselves hy assigning, making over, or paying the residue as directed, and in default of direction, in certain proportions to parties named, which in a subsequent deed is recited as a requisition on the trustees to turn the estate into money, is to he taken as a direction to sell, and therefore makes the estate personal in the trustees' hands. — William- son V. Advocate-Ge7ieral, 2 8. Bell, 89 ; 10 CI. Sf Fin. 1 (1843) ; Aff. 15. A domiciled Englishman having, through an attorney in Scot- land, sold an estate there, one-third of the price to be paid at the next term, and two-thirds two years thereafter, during which time they should "remain a burden over the property tiU paid," and interest paid on them, and the vendor having died after the date of payment of the one-third, but before that of the two-thirds, and having left a will in the English form bequeathing all his property ; held that the two-thirds was heritable, and did not pass by the wUl. — Mead v. Anderson, 4 W. ^ S. 328 ; a Dow ^ Clark, 60 (1830) ; Aff. 6 S. 1034. 16. "Under a trust to hold lands for nineteen years, and then to sell and divide the price, the rents being meantime paid to the beneficiaries, an agreement being entered iuto by the beneficiaries that they should be sold before that period if necessary, the share of one dying before sale is moveable as to the capital, but the rent tiU. sold goes to the heir- atlaw. — ^eme v. Ferrie, 2 Stu. H. L. 7 (1852) ; Aff. 17. A trust of heritable and moveable estate to pay debts and legacies, and then " to pay the whole residue, heritable and moveable, to the residuary legatee," with power, but not direction, to sell the heri- tage, does not operate a conversion of the heritable into moveable &s\,sAQ.—Advocate-GeneralY. Smith, 1 M'Q. 760 (1854); Aff. UD. 585. 18. A direction to trustees to " pay over, in equal shares, the residue of his estate," which was both heritable and moveable, with power to them, if necessary, to convert the same into money, is not a trust for conversion, and being dependent on the discretion of the trustees, and not indispensable to the execution of the trust, it does not operate as a conversion. — Buchanan v. Angus, 4 M'Q. 374 (1862); Rev. 22 D. 979. HOUSE OF LOEDS. I. Authority OF JnnoMENTS, p. 180 II. Sitting and Voting of Peers, 182 III. Speeches bt Peers, . p. 183 IV. English Judges Consulted IN Scottish Appeals, . 183 I. Authority of Judgments. I. The House of Lords is not bound by its decisions if it considers them on reconsideration to be bad law. (Per Lord Thurlow) — " There Aidhority of Judgments.] HOUSE OF LORDS. 181 is no rule of law founded on a proposition so absurd, as that even in the last resort there is absolute infallibility." — Forbes v. Maepherson, 3 P. 169 (1790). 2. The decisions of the House are not binding upon it if palpably- erroneous. (Per Lord Stanhope.) — Lord Daer v. Stewart, 3 P. 298 (1793). 3. In affirming on argument a judgment of the Court of Session, opiaion expressed by Lord Loughborough, that, on a new case occurriug, that Court should reconsider their decision. — Smith v. Newlands, 4 P. 43 (1798). 4. Per Lord Eldon : " I own that the judgments given in the cases of Duntreath, and some other cases relative to entails, appear to me to. shock every principle of common sense. In this country, also, a mode was devised by the Judges, of getting rid of entails by fictitious re- coveries, &c. It would have been more principled and wholesome, if the Judges in both countries had applied to the legislature when they deemed the law required amendment, than thus to have repealed it by judgments in Courts. It is too late now to enter into those cases ; the security of much landed property must necessarily lead your Lordships to act on the principles recognised by the Courts, and repeatedly ad- judged in your Lordships' House." ..." Therefore when I move your Lordships to affirm the interlocutor complained of, I shall give my vote as not content, protesting that as a Judge I never could have concurred in the former decisions originally when they were pro- nounced." — Bruce v. Bruce, 4 P. 231 (1801) ; Aff. M. 15539. Menzies V. Beresford, 4 P. 247 (1801). 5. The House of Lords will not rehear an appeal on the merits, but it win correct any error of form it has fallen into, and wUl, either if there has been any fraud upon it, or if there has been any natural mis- understanding in the parties through which any point has not been properly discussed, allow it to be heard again, or remit it to the Court below as may be just. — Stewart v. Agnew, 1 8. Ap. 413 (1823) ; Rev. 2 S. 64. See Appeal, 123 — Bankruptcy, 37 — Sheriff, 9. 6. Observed by Sir John Leach, M.E., that the House may decide cases on grounds not touched upon or suggested in the Court below, and a decision of the House cannot be impugned in argument, directly or indirectly. —^mZcZ v. Mags, of Ayr, 2W.^ S 607 (1827). See 24. 7. The House may come to a different decision, either as regards in- ference of fact or law, from that which it came to in a prior case of the same circumstances, and may correct any error or mistake ; but it wUl, like other courts, endeavour to preserve uniformity of decision. (Per Lord Brougham.) — Dickson y. Cunningham, b W. Sf S. 690 (1831). 8. Explanation, that the House in the Hoddam case inserted in the 182 HOUSE OF LORDS. [Sitting and Voting. judgment the conclusions of the libel per ineuriam, emhraeing in them a point which had not been argued, and on which no decision was in- tended to be given, namely, that the party might alienate for gratuitous causes, and observed, that though that decision might operate as res judicata, it could not be taken as an authority for the doctrine. (Per Lord Brougham.) — CarricJc v. Buchanan, 1 8. Bell, 380 ; 3 S. Bell, 342 (1844). See EntaU, 88. 9. Per Lords Brougham and Campbell : Nothing but an Act of Parliament can alter the law laid down by a decision of the House. — Golville V. Colmlle, 4 S. Bell, 248 (1845). 10. Opinion of Lord St Leonards that the House may correct error of law laid down in its own judgments on future cases occuiring. — Scott Y. Maxwell, 1 M'a 791 (1854) ; 12 D. 932. 11. When the House has made an order that aU the parties should be examined in the Jury Court, and found afterwards that two of the parties were dead, the House, after a search of precedents, ordered its instructions to be struck out. — M' Gavin v. Stewart, 4 W. ^ S. 195 {note) (1830). See 9 S. 17, and b W. S; S. 807. 12. The judgments of the House cannot be interpreted by the opinions delivered by the Peers in moving the judgment, but in any matter not decided by the judgment, great weight is due to their opinions. (Per Lord Brougham.)— JfaztZe v. Maule, 6 TF. ^ S. 661 (1832). 13. Question, Whether, when the Peers in giving judgment, notice without dissenting from the ratio decidendi in the Court below, but do not rest their own judgment expressly on it, it is to be taken as affirmed? — if axweZZ v. Maxwell, 5 S. Bell, 165 (1846) ; 6 D. 255. 14. A judgment of the House of Lords, if obtained by fraud or collusion, is a nullity. Question, Whether it can be set aside by a suit originating in an inferior Court, or only by an application to the House ? — Shedden v. Patrick, 1 M'Q. 535 (1853). See case considered as overruled. Heir, 76, 77, sed qu. Also cases declared not to form precedents or preclude reconsideration. Arbi- tration, 3, 14 — Bankruptcy, 22 — Charity, 6 — Legitimation, 1. II. Sitting and Voting op Peers. 15. Lord Eldon, having been counsel in some previous appeals, stated that it was only as a matter of necessity, from the absence of other Peers, that he sat to hear a subsequent appeal relative to the same matter. — LashleyY. Hog, 4 P. 603 (1804). 1 6. Lord Brougham, C, stated, that having been consulted as counsel for the appellants, he wotdd rather not hear the case ; but at the re- quest of the respondents, and of consent of parties, he heard it. — Soc. of Solicitors v. Smillie, i: W. ^ S. 375 (1830). English Judges consulted!] HOUSE OF LORDS. 183 17. A Peer will not take part in hearing an appeal in which a Com- pany of which he is a shareholder is a party. Question, Whether this rule could be altered otherwise than hy statute ? — London and N. W. Ry. Co. V. Lindsay, 3 M'a 114 (1858). See Court of Session, 12. III. Speeches by Peers. 18. Reasons given on affirming. By Lord Thurlow — Mercer «. Ogil- vie, 3 P. 434 (1796). By Lord Loughborough— Duggan v. Wight, 3 P. 610 (1797) ; Sime v. Viscount Arh.uthnot, 3 P. 613 (1797). By Lord Eldon— Donaldson v. Lord Perth, 4 P. 112 (1800). By Lord Thurlow — Forster v. Paterson, 4 P. 295 (1802). By Lord Eosslyn— Soc. of W.S. V. Soc. of S.S.C. 4 P. 326 (1802). 19. Observed by Lord Eldon that he had often lamented the usage of the House, which prevented the grounds of judgment being stated on affirmance. — Graham y. Henderson, 4 P. 421 (1802). 20. Speeches in affirming, by Lords Eldon and Eosslyn. — Davidson V. Fleming, 4 P. 554 (1804). 21. Eeasons for affirmance, given by Lord Eldon, where he did not approve of aU. the cases treated as precedents. — Uarl of Kinnoul v. Dalgleish, 4 P. 671 (1805). 22. Speech and motion by Lord Lauderdale, opposed by Lord Eldon, who moved to affirm with a variation. — Earl of Wemyss v. Macqueen, 5 P. 210 (1808). 23. Eeason stated on affirmance by Lord Eldon. — Earl of Wemyss V. Carre, 5 P. 219 (1808) ; Arnot?;. Stewart, 6 P. 289 (1817) ; Geddes V. Pennington, 6 P. 312 (1817). 24. On the death of Lord Gifford, and resignation of the Great Seal by Lord Eldon (182 7), Alexander, C.B.,and Leach, M.E., were appointed to hear appeals from Scotland, but had not the power of delivering their opinions in the House. See 2 W. & S. 558. 25. Question whether the opinion of a Peer, who was preseiit at the argument, but absent when judgment is given, can be read to the House. Opinion of Lord Westbury that it can. Observed by Lord Chelmsford, that it is only done when the opinion agrees with the judgment to be pronounced. — Yelverton v. Yelverton, 4 M'Q. 834 (1864). IV. English Judges Consulted. 26. The opinion of the English Judges taken only on a question framed as if it occurred in England. — Gordon v. Lord Advocate, Cr. & St. 558 (1754). 27. Observations on the disadvantage of not having the assistance of the Scottish Judges in the same manner as that of the English Judges. (Per Lord Brougham.) — Cogan v. Lyon, 4 W. & S. 397 (1830). 184 HUSBAND AND WIFE. [Constitution 28. The order for attendance of tte English Judges at the hearing of an appeal discharged on the ohjection of one of the parties. Lords Campbell and Brougham approved of the English Judges heing called ia. — Edin. and Glasgow Ey. Co. v. Mags, of Linlithgow, 3 M'Q. 691 (1859). Note. — English Judges were consulted ia Appeal, 100 — ^AJieu, 1 — Bankruptcy, 30 — Belligerent, 4 — ^Excise, 2 — Forfeiture, 14, 16 — In- surance (Marine), 3 — Statute, 17, 24 — Succession Duties, 1 — and see 24. See Law op Scotland, 1. HUSBAND AND WIFE. I. Makriaqe, Constitution OF, p. 184 II. Ebstraints on Marriage, 187 III. Wife's Capacttt and Lia- bility, 188 IV. Wife's right of Ali- ment, p. 188 V. Marriage-Contracts, . 189 VI. Propbett of Spouses, . 192 •VII. Courtesy and Tbrcb, . 194 VIII. Divorce, 195 I. Constitution of Marriage. 1. A marriage alleged to have been legally solemnised, and also con- stituted by habit and repute, held not established by evidence on either head. — Dalrymple v. Dalrymple, 6 P. 671 (1741); Aff. 2. Appeal withdrawn before answer. — Countess of Strathmore v. Forbes, 6 P. 684 (1751). 3. A clandestine marriage, followed by public cohabitation as married parties for twenty years, is not set aside by strong (but not irresist- ible) evidence of a prior private marriage, concealed till after the husband's death, the alleged first wife having been aware of, and having publicly acquiesced in the conjugal cohabitation ; but there is no per- sonal bar against the alleged- first wife attempting to set up her mai- riage.— Kennedy?;. CampbeU, Cr. & St. 519 (1753); Alt. M. 10456. 4. Letters from the husband introducing the lady as his wife, with others urging her to " come home," &c., found sufficient to prove mar- riage, the nbel being alternately for marriage, or for damages for seduc- tion. — Macahster «. Dun, 2 P. 29 (1759); Aff. 5. Cohabitation for six months in the Isle of Man as husband and wife, and having a child bom there baptised as legitimate, is not suffi- cient to establish marriage. (Per Lord Hardwicke) — ^' The cohabitation required by law to establish a marriage ought to be inter familiares natos et vicinos, where one of the parties has a domicile." — Macculloch V. Macculloch, 2 P. 33 (1759); Afif. M. 4591. 6. The pursuer of a declarator of marriage having founded upon a written acknowledgment, which, on consideration of the defender's judicial declaration, was held insufficient to establish marriage, is not of Maniage.] HUSBAND AND WIFE. 185 entitled to demand to he allowed either to support it by other evidence, or to set up in the same action a different mode of constitution of mar- riage. — M'Innes V. More, 3 P. 40 (Incorrect Eeport. See App. Cases) (1785)jAff. See 7. 7. "Where the only evidence is a written acknowledgment given by the man, some months subsequent to its apparent date, and his judicial declaration, in which he stated it was not given, or accepted, or under- stood by either party as constituting marriage, but merely as a colour to serve a different purpose, which had been concerted between them, which is corroborated by other cii-cumstances, it is not sufficient proof of marriage.— More v. M'Innes, 2 P. .598 (1782) j Eev. M. 12683. 8. Letters addressed by a man to a woman as his wife, with coha^ bitation and evidence of partial repute, held to constitute marriage, although the woman had solemnly denied cohabitation. — Eobertson V. IngHs, 3 P. 53 (1787) ; Aff. M. 12689. 9. Letters of acknowledgment of marriage interchanged, beiug held on evidence not to have been intended or understood, by either party, to constitute a final agreement or marriage, but to have been expressly agreed to be given up if the purpose for which they were given should prove unattainable, marriage is not constituted. — KeUo v. Taylor, 3 P. 56 (1787) j Eev. M. 12687. 10. Evidence of cohabitation, with Hmited repute as husband and wife, and evidence of acknowledgment, held insufficient to establish the marriage in a reduction of a service on the question of legitimacy, the woman being of bad character. — Heriot v. MakgiU, i P. 77 (1799) ; AS. See Heirs, 60. 11. Marriage is constituted by declaration made solemnly, seriously, deliberately, and pubKcly, in the presence of witnesses, and it is not affected by the death of the husband a few hours after, whether by accident or suicide, there being evidence that at the time of the declara- tion he was of competent mind and understanding. — M'Adam v. Walker, 5 P. 673; 1 Dow, 148 (1813) ; Aff M. Proof, Ap. Nos. 3, 4. ' 12. "When a connection has at its commencement been illicit, there is a presumption against its being subsequently converted into marriage. Evidence of celebration and of habit and repute held insufficient. Ob- served that repute, if divided, does not raise a presumption of marriage. — Cunningham v. Cunningham, 4 Dow, 483 (1814); Eev. E.G., 8th March 1810, note. 13. Cohabitation commenced when one of the parties is married, does not become legal marriage by mere continuance after the impediment of prior marriage is removed. To give it that effect there must be some distinct act indicating intention to change its character. Question, "What would be the law if, at the commencement, both parties had bond fide 186 HUSBAND AND WIFE. [^Constitution believed that there was no impediment. — Lapsley v. Grierson, 1 H. of L. Ca. 498 (1848) ; Aff. 14. Mutual written agreements, undated and unaddressed, " to be a true," &c., husband and wife respectively, on condition that the other party was the same, and containing also a promise to keep the docu- ment secret, followed by copula, constitutes marriage. • — Eeid v. Laing, 1 S. Ap. 440 (1823) ; Aff. 15. A clandestine marriage, hurriedly and "suddenly performed, may be^set aside on proof from their conduct before and afterwards, that the parties had no real matrimonial intention, and never regarded the ceremony as binding. Question, Whether, if the result had been other- wise, the action of declarator of marriage and adherence could have proceeded without making parties a man to whom the woman was sub- sequently married, in the life of the first husband, and her children by such second marriage. — Jolly v. M'Gregor, 3 W. & S. 85 ; 1 Dow and Clark, 208; 2 Bhgh, N.S. 393 (1828); Eev. Ferg. Eep. 51. CampbeH v. Cochrane, 3 W. & S. 135, note, and list of cases on parties at p. 202. 16. In a summons of declarator of marriage, it was alleged that from a certain letter, and other letters and documents, and facts and cir- cumstances, it would be proved that the persons were married persons. Held that though the summons was badly drawn, it would support a marriage by promise subsequente copula. (Per Lord Brougham) — The promise may be established by proof of facts and circumstances without writing, and the cohabitation must be in direct connection with the promise. Courtship is not a promise, but it is probable evidence of a promise; and when the probability of a promise is great, it may be turned into certainty by the fact of cohabitation following. — Honyman v. Camp- bell, 5 W. & S. 92; 2 Dow & Clark, 265 (1831) ; Aff. 8 S. 1039. 17. Letters and acts leading to the inference that a contract of mar- riage, beKeved to be bindmg by at least one of the parties, had been entered into, held to prove the marriage, whether they were written and done by the other party with a view of evading the consequences of marriage or not. After copula following on a written promise of mar- riage, it is immaterial whether the letters are given up or not, as the marriage is irrevocable. (Per Lord Brougham) — Even if the promise was surrendered before copula, it might be held to be revived by the copula.— Hogganw. Craigie, M'L. & R 942 (1839) ; Aff. 16 S. 584. 18. A letter declaring a woman to be the writer's wife, in the event of a child being bom, does not constitute marriage, and although delivered after the birth of a child, it does not constitute marriage, if the circum- stances prove it was delivered for another purpose. — Stewart v. Menzies, 2 Eobin. 547 ; 8 CI. & Kn. 309 (1841) ; Aff 14 S. 427. 19. A letter by a man to a woman with whom he cohabits, declar- of Marriage.] HUSBAND AND WIFE. 187 ing her to be his wife, constitutes marriage if shown or read to her, and believed by her to be bond fide, although the purpose of the man in writing it has been to deceive her or others, and though it was not delivered to her. Evidence of communication of such a letter, which was held sufficient. Evidence of habit and repute, being conflicting, held insufficient — Hamilton?;. Hamilton, 1 S. Bell, 736 ;' 9 CI feEin. 327 (1842) ; Aff. 2 D. 89. 20. Evidence of declarations of marriage, or of promise of marriage, subsequente copula, held insufficient, the promise not being in writing, nor followed without interval by copula in Scotland, and it not being certain that the cohabitation could be referred to it. An invalid cere- mony of marriage in Ireland wUl not, when followed by cohabitation in Scotland, constitute marriage. A reference to oath of the defender, before judgment of the House, refused. — Yelverton v. Telverton, 4 M'Q. 743. 21. Marriage with a deceased wife's sister being assumed to be illegal and capitally punishable in Scotland, the law of Scotland would not recognise it though taking place in another country where it is valid. Such marriages prior to the 5 and 6 Will. IV. c. 54, were void in Eng- land, though only challengeable during the Hfe of the parties ; and therefore a foreign Court will not, through courtesy, treat them as vaUd in England from the fact that they had not been challenged. The heir succeeding to real estate in any country must be the heir who is legiti- mate by the law of that country. — Fenton v. Limngston, Z M'Q. 497 (1859) ; Rev. 18 D. 865. II. Restraints on Mabeiage. 22. A bond by one who has possessed three years an apparency in favour of his granddaughter, and declared to be irrevocable, except in the event of her marrying without his consent, if in life, or without consent of certain named persons after his death, is exigible though the lady marries after her grandfather's death without the specified consents. — Jf'ieaK v. M'Lean, 2 P. 95 (1765) ; Aff. 23. Opinion that a codicil revoking a legacy to a daughter, in the event of her marrying or having married a named person, is valid in Scot- land as well as England. — Ommaney v. Bingham, 3 P. 448 (1 796) ; Eev. 24. Legacies to daughters being directed to be paid on marriage, if with the approbation of the trustees of the will, but if without con- sent, then to be held in trust for their children, and if they should not marry, then to fall into the residue ; held that, on the death of the trustees, the consent of their representatives was not necessary to a marriage, and that if the residuary legatee acquiesced, the legacies might be paid at once to any daughter, whether married or not, and 188 HUSBAND AND WIFE. [Aliment of Wife. payment could not be claimed again by their husbands, in the event of a subsequent marriage. — Grant v. Dyer, 2 Dow, 73 (1813) ; Bev. 25. A father having left his estate to trustees for his natural son, provided he did not marry a certain lady, and if he did, then for his own brother, who was in India, and the son having married the lady, and then, by agreement with his uncle's attorneys (who acted without authority), compromised the question by accepting half the value of the estate, expressly leaving the valuation of one part of it to his uncle, and declaring that he had no legal claim to it, he cannot compel his uncle to put a value on such portion. — Graham v. Graham, 1 S. Ap. 365 (1823) ; Bev. III. Wife's Capacity and Liabilities. 26. The office of tutor nominate of her child comes to an end on the second marriage of the mother. — Cuthbert v. Mackenzie, 2 P. 377 (1775) ; Aff. But see Trust, 16. 27. In an action for damages for slander directed against a wife and her husband for her interest, and to which he lodged defences for himself and as curator for his wife, repeating the slander, and offering to prove it, but in which proof he failed, and the wife was found guilty of the scandal UbeUed, and liable in a fine to the Fiscal, damages to the pursuer, and expenses — ^held, 1st, That execution could not pass against the wife's person during the marriage for either the fine, damages, or expenses ; 2d, That neither the husband's person nor estate was liable for the fine or damages ; 3d, That he was not liable generally for the expenses, but was liable for so much of the expenses as was caused by the conduct of the defence, in so far as it was malicious, vexatious, and cahimaious. — Baillie v. Chalmers, 3 P. 213 (1791); Alt. M. 6083. 28. A married woman may without concurrence of her husband sue for damages for slander against herself, a curator ad litem being appointed to concur with her. — Ewing v. Cullen, &W.^S. 566 (1833) ; Aff. 9 iS. 31. 29. A married woman cannot bind herself by signing a bill, even as joint acceptor with her husband. — Earl of Strathmore v. Ewing, 6 W. 4- S. 56 (1832) ; Bev. 4 S. 310. 30. A wife's domicile follows her husband's. Question, How far this continues the rule after a judicial separation. A marriage is held to be in the country of the husband's domicile. — Geils v. Geils, 1 M'Q. 255 ; 2 Stu. H. L. 13 (1852) ; Aff. 13 D. 321. . See 60, 83. IV. Wipe's Right op Aliment. 31. A wife is not barred from suing for suitable aliment, by a con- tract of separation in which she had agreed to accept a small sum,, while they should agree to live separate. L.300 per annum out of the Marriage-Cmtraets.] HUSBAND AND AVIFE. 189 husband's estate of L.llOO per annum granted. — Earl of Caithness v. Countess of Caithness, Gr. ^ St. 654 (1757) ; Aff. 32. It is not adherence on the part of a hushand if he does not re- ceive his wife in his house, but only takes separate lodgings for her, and does not there cohabit or lodge with her, and in these circum- stauces she is entitled to claim a separate aliment. — Arthur v. Gourlay, 2 P. 184 (1769); Aff. 33. Interim aliment cannot be awarded until & prima facie case of marriage has been established, and on failure to prove a marriage, it is incompetent to award permanent aliment to the pursuer on the ground that by a written document she had been represented by the defender at one time to be his wife, it not having been an engine of seduction. — Campbell v. Sassen, ^ W. ^ S. 309 (1826) ; Rev. 2 8. 193, und ~ 3 S. 159. V. Mabriage-Contracts. 34. Inhibition by the parties named in a contract of marriage as those at whose instance execution should proceed, upon an obligation in the contract to settle the estate upon the husband and the heirs of the marriage, prevents a subsequent gratuitous alienation by the husband.— Home v. Home, Eobert. 47 (1712); Aff. M. 5236, 12900. See Fee and Liferent, 10 — Heir, 20. 35. A hiisband being bound by marriage-contract to leave his house- hold furniture and heirship moveables at his death to his widow, and having thereafter granted bond to her for L.7000, payable at the first term after his death, and still later provided her in the liferent of a house after his death, the provision in the contract is not extinguished, but the three rights subsist independently. — Coekhum v. Hamilton, Robert. 61 (1713); Rev. M. 5911. 36. An agreement in the contract of marriage that the estate of the wife should be conveyed to her father, in consideration of a marriage portion given by him, though reduced as to the wife on the head of minority and enorm lesion, yet binds the husband as regards his courtesy, he having been major, but does not bind him in the penalty under which he had bound himself that his wife should ratify the deed when of age. — Hamilton v. BosweU, Eobert. Ap. 346 (1721); Aff. 5 Br. Sup. 21. See Minor, 3. 37. A bond of annuity being granted to a married woman by her husband, on consideration of her renouncing her settlement provisions, and settling her separate estate- on her eldest son, but the deed of renunciation and settlement being never delivered, and afterwards found cancelled in her hands, she is presumed to have cancelled it herself, and is not entitled to claim the annuity, nor to prove the tenor of the 190 HUSBA^fD•AND WIFE. [Marriage- Contracts. deed so as to set it up again, and so entitle herself to the annuity. — Houston V. Schaw, Robert. 561 (1726) ; Aff. 38. A., the uncle and late guardian of B., having obtained from him a conveyance to aU his estate, with warrandice, a month before B.'s mar- riage, to the treaty for which A. was at the time privy, the conveyance merely reserving B.'s liferent, with power to his heir male to redeem on payment of A.'s advances, and in case of no heirs male, power to grant reasonable provisions to daughters, but no mention of provisions to the wife of B., on which conveyance sasine was taken before the marriage, but not registered tiU after it; held that the marriage-contract of B., in which half his estate was provided to his wife in liferent, and on which sasine was taken and registered before registration of the sasine on the conveyance to A., effectually excluded A.'s claim to that extent, and that B. having during marriage assigned to his wife some personal bonds, she was not after his death liable, under the warrandice on the conveyance to A, to make good to him out of these bonds the value of the liferent provision settled upon her. — Napier v. Napier, Cr. & St. 1 (not fully reported). See Lords' Journals, 29th April 1726, and Appeal Case. 39. A lady infeft in jointure lands is not debarred by a personal agreement with her son from having recourse to the lands even in the hands of an onerous purchaser, her infeftment never having been renounced, and she is not excluded by a prior wadset of the lands, the right to which had been acquired by the purchaser, but the amount of which he had retained out of the price of the lands. — Gordon v. Urquhart, Cr. & St. 176 (1736) ; Aff. 40. A provision to children of certain sums, and in case of no children surviving the husband, or of thefr dying before minority or marriage, then in fee to the wife, gives her a jus crediti which she may assign before the condition of the death of children is purified. But provisions made in a subsequent deed in favour of the wife, to take effect in the event of the death of the children before minority or marriage, are not assignable by her before the condition is puri&ed. — Burden v. Smith, 1 Cr. & St. 215 (1738) ; Elchies «. Mutual Contract, No. 7. 41. A father having in his eldest son's contract of marriage conveyed his estates to the son, reserving to himself a liferent annuity, and a provision for his own younger children, and the estate turning out de- ficient, the provisions in the marriage-contract in favour of the son's widow and children take effect preferably to the reserved burdens, and there is no room for the claim, of heneficium competentice to the father. —Hog v. Hog, Cr. & St. 469 (1750) ; Eev. M. 4862. 42. A contract of marriage giving, in default of heirs, the wife's estate to the husband in fee, sustained on the ground that the marriage Marriage-Contracts^ HUSBAND AND WIFE. 191 had actually followed, and that the wife's father was proved of sound mind, although his bodily health was extremely weak, the marriage sudden and against the wife's inclination, and she herself only eleven years of age at the time. — Irvine v. Irvine, Cr. & St. 547 (1753) ; Eev. Elchies v. Eraud, No. 32. 43. An onerous and rational provision made by the owner infeft in an estate in favour of his wife, does not fall by a reduction of his title in virtue of a latent personal obligation. — Stewart v. Heron, Cr. & St. 432 (1749) ; Aff. M. 1705. 44. A widow who under her marriage-contract had been infeft in liferent in lands, but had afterwards concurred with her husband in granting an heritable security upon them, upon which the creditor adjudged and possessed for twenty-five years, but without declarator of expiry, is entitled, on paying off the creditor's debt, to an assignation of the debts and adjudication, to the effect of obtaining relief against the heir. — Govan v. Simpson, 2 P. 27 (1759) ; Aff. 45. A widow having been led to restrict her claims under her mar- riage settlement by the belief that her husband's estate was nearly ex- hausted by debts, and on the consideration that certain bonds of pro- vision to the children, which she believed reducible ex capite lecti, should be implemented, and a valid liferent granted to herself, is en- titled, on discovering that there would be a considerable surplus, and that the deeds were not reducible, to reduce her bond of restriction, and recur to her marriage-contract rights. — Lady Forbes v. Lord Forbes, 2 P. 36 and 84 (1760-65) ; Rev. See Error of Law, 8. 46. A wife is not bound by a renunciation executed by her of the provisions of her marriage-contract proceeding upon an erroneous belief of her rights. — Lady Cranstoun v. Scott, 2 P. 425 (1777); Rev. M. 6108, and Ap. 1, Husb. and Wife, No. 1. 47. The wife's estate being in the marriage-contract conveyed to the husband, and by hitn reconveyed to her after marriage, but afterwards sold, and bonds for the price taken in his name alone, this is a revoca- tion of the gift to her. — Earl of Fife v. Mackenzie, 3 P. 549 (1 797) ; Aff. 48. An assignation by the husband to the wife in a marriage-contract of aU moveable goods, gear, and effects which should belong to him at his death, does not convey money or debts ; and a like assignation by the wife to the husband, his heirs and assignees, does not, on the wife surviving, prevent her from leaving them by wUl to another party. — Farl of Fife v. Mackenzie, 3 P. 549 (1797) ; Aff. M. 2325. See Heritable and Moveable, 2. 49. A post-nuptial contract of marriage by which each party assigned his or her rights to the survivor, providing, in the case of the wife sur- viving, that it should be in fuU of all her legal claims, and that she 192 HUSBAND AND WIFE. [Property of Spouses. should be bound to educate and provide for the children, is not gratuitous or revocable by the husband, even after his means come to be greatly more than at the time of the contract. — Hepburn v. Brown, 2 Doio, 342 (1814) ; Rev. 50. Teims of a marriage-contract referring to a professional annuity due to the widow, under which she was held entitled to have the amount made up by the husband's executors, on its ceasing by her second marriage, or being diminished by other causes. Letters prior to the contract and the husband's wiU are not admissible as evidence by which to construe the contract, but may be looked at to ascertain the circum- stances existing at the time of the marriage. — Forlong v. Taylor's Exrs., 3 8.^ M'L. 177; 5 CI. ^ Fin. 380 (1838) ; Aff. 15 8. 126. 51. An obligation in a post-nuptial contract to pay a certain sum to the wife, or to any person she shall appoint by writing, and whether she survived her husband or not, the sum to be payable at the first term after her husband's death, vests the sum in her on survivance, although she does not exercise her power of appointment, nor calls in nor bequeaths the fund by will — jyill v. Earl of Haddington, 2 BMn. 298 ; 8 CZ. ^ Fin. 168 (1841) ; Rev. 2 D. 214. 52. When a father and son bind themselves jointly and severally to pay the son's intended wife an annuity during her widowhood, the father's personal estate is directly liable, and not merely as cautioner for the son ; and therefore it is not liberated by the son making a farther allowance to his wife, to take effect on widowhood, out of the rents of his entailed estate after the father's death. — Qruiclcshank v. GruicksJiank, 4 S. Bell, 179 (1845) ; Af. 5 D. 733. 53. Powers reserved in a marriage-contract to be exercised on the dissolution of a marriage by death, may be equally exercised on disso- lution by divorce. — Cunninghame v. M'Leod, 5 S. Bell, 210 (1846) ; Aff. 3 D. 1288. 54. A trust-disposition of a woman's lands, made in contemplation of her marriage, to the issue of the marriage, whom failing, her heirs-at- law, is onerous only as regards the issue, and though not containing an express power of revocation, may be revoked on her being divorced without issue. — Cunninghame v. M'Leod, 5 S. Bell, 210 (1846) ; Aff. 3 n. 1288. See Cautioner, 10 — Fee anb Liferent — ^Forfeiture, 1 — ^Heirb, 40 — Minor, 3 — Proving the Tenor, 6. VL Property of Spouses. 55. The husbands of two heirs-portioners having entered into a sub- mission as taking burden on them for their wives (but without the wives signing the submission), respecting an apprising over the estate, Property of Spouses.] HUSBAND AND WIFE. 193 and the decree having ordained the apprising to be conveyed to the husbands and their wives, the husbands to pay the price, and it being actually paid by a real burden granted by the wives over the estate, with consent of the husbands, the fee of the apprising is in the wives. — Murray w. Murray, Eobert. 144 (1715); AS. 56. A wife having assigned a bond to her husband, who by his will conveyed it to her as trustee for his grandchildren, and she having signed the will, and recognised the trust after the death of her husband, she cannot revoke the assignation as a donatio inter virum et uxorem. And the husband having in the will appointed a person as " overseer" of the trust, to whom the widow afterwards assigned the bond on the narra- tive of an onerous cause, and granted to him. a general discharge of in- tromissions, such narrative and discharge does not relieve him of the necessity of proving the onerous cause on challenge of the assignation by one of the grandchildren, even after the lapse of fifty years. — Gregory v. Grazier, Robert. 178 (1716) ; Aff. 57. A bond blank in the creditor's name, being delivered to the wife of one who had conveyed his whole estate by a mortis causa deed to the grantor of the bond, and after the husband's death a new bond having been granted by the same party to the widow by name, on her giving up the original, and binding herself to relieve the grantor of all claims by the excutor of her late husband, the said executor was found to have sole right to the bond. — Morison v. Scott, Robert. 269 (1720) ; Aff. M. 5011. 58. A wife cannot, without her husband's consent, restrict an annuity granted her by her son. — Comrs. of Forf. Estates v. Drummond, Robert. 290 (1720); Aff. 59. A disposition by a father to his married daughter of heritable and moveable estate, in trust for herself in Kferent and for ahment, and for her children, secluding her husband in the event of insolvency from the jtis mariti and right of administration, and declaring the estate not liable for her debts or deeds, and naming trustees to act with the daughter in ease of her husband's insolvency, is effectual against creditors of the husband subsequent to insolvency, but the rents and income accruing prior to insolvency are attachable by the creditors. (Per Lord Mansfield) — This right (ia the wife and children) is exactly similar to a trust in England for the sole and separate use of the wife and her issas:.—Annand v. Scott, 2 P. 369 (1775) ; Aff. M. 5844. See 64, 65. 60. A marriage in England, the husband being at the time domiciled there, does not, except by express agreement, fix the rights of the spouses, in the event of the husband afterwards changing his domicile ; and on the death of either after such change, the law of the domicile at the time decides all questions of personal succession. So also in re- N 194 HUSBAND AND WIFE. [Gourtesy and Terce. gard to the provinces of York and Canterbury. — Lashley v. Hog, i P. 581 (1804) ; Rev. M. 4628, 4619. 61. A contract of separation, whereby a wife accepts an annuity in full of aU her legal claims on the husband's estate after his death, may be revoked by her after that event, on the ground of inadequacy. — HuntffTY. Dickson, b W. ^ S. 455 (1831) ; Aff. 5 S. 266. 62. A husband having borrowed from his wife's trustees money conveyed to them for her, exclusive of the jus mariti as to principal and interest, granted bond for it with the like exclusion, on which bond adjudication was led at the wife's interest ; held that the interest on the bond does not fall under the jus mariti. — Mobertson v. Rohertsun, 7 W. # S. 526 (1835) ; Aff. 13 S. 442. 63. A widow having, by agreement with two of her sons, accepted from them certain payments which were substantially equal to the amounts granted her in a post-nuptial deed by her husband, as in lieu of her legal provisions, and having on receipt renounced in their favour aU her claims, legal and conventional, against her husband's estate, she cannot retain or afterwards revert to her legal rights in competition with others of her children. — Dixon y. FisJier, 2 Robin. 345 (1841) ; Aff. 2 D. 1121. See 37. 64. An assignation by a wife, in security of debts due by her hus- band, of the interest of a fund vested in trustees for her use, which interest is declared to be alimentary only and not assignable, is void ; observed that such an assignation by a wife without consent of her husband, though he was out of the country, would have been void, even if the fund had not been alimentary. A trustee with power to pay debts, and to apply so much of the interest of the residue as he deems advisable to the support of a married woman and her family, the fee being given to the children, is not entitled to assign the estate for payment of the husband's debts, reserving only a fixed aliment to the wife. — Renniev. Ritchie, 4 S. Bell, 221 ; 12 CI. ^ Fin. 204 (1845) ; Rev. 3 D. 192. See 59. 65. An insurance on the husband's life payable to the wife and her heirs, there being no marriage-contract, and it being only a reasonable provision, is not revocable, and is effectual against -his creditors on bankruptcy, if he was solvent when it was entered into. — Galloway v. Craig, 4 M'L. 267 (1861); Rev. 22 D. 1211. See Bankrupt, 1, 20, 63 — Conquest, 2 — ^Fee and Liferent, 17 — Heirs, 5 — Heritable and Moveable, 5 — Legitim, 2, 11 — Lipe- EENTEE, 3, 4, 5. VII. CoUIiTEBY AND TeRCE. 66. Eeduction on the ground of informality of a wife's infeftment Divm-ce.] HUSBAND AND WIFE. 195 after her death does not bar the husband's courtesy. — Hamilton v. BosweU,Eobert. 192 (1717); Aff. M. 3117. See 36. 67. Terce is not excluded by a revocable, but only by a conventional provision to the -wife ; but if the language of the revocable provision expressly or by implication declares that she shaU not take both, she is put to her election. A conveyance of an estate in fee would not of itself put her to election, but if in liferent it would ; and the case is the same whether the estate is in England or Scotland. — Lowthian v. Ross, 3 P. 621 (1797) ; Rev. M. 4631. 68. Terce does not extend to lands held burgage, being part of an estate of which the remainder is held fee. — Lawson v. Maxwell, 4 P. 464 (1803); Aff. VIII. Divorce. 69. In an action of separation on account of cruelty, a proof of alleged calumnious statements was allowed to support the charge of cruelty ; held, on the evidence, that the cruelty was not established. — Moir V. Moir, 6 P. 688 (1751); Rev. Elchies, Husband and Wife, No. 35. 70. In an action of divorce the alleged adulterer was admissible as witness against, or for, the defender. — Nicolson v. Mcolson, 3 P. 655 (1771); Aff. M. 12639, 16770. Marshall v. MarshaU, 4 P. 72 (1779). 71. The defender in an action of divorce for adultery has a right to require that the particulars of time, place, and person shall be stated. — MarshaH v. Marshall, 4 P. 72 (1799). 72. In order to support a plea of condonation or remissio the certain knowledge of the pursuer of the acts of adultery at the time she is said to have condoned them must be proved, and her statements of suspecting them, or a deed by the husband admitting them, but not proved to have been brought to her knowledge, are not sufficient. — Legrand v. Stewart, 2 P. 596 (1782) ; Aff. See 76. 73. Eemit to consider the evidence of the husband's knowledge of the acts of adultery at the time when the condonation took place, and whether condonation can be pleaded while the adultery is denied. — Fairlie v. Fairlie, 6 P. 121 (1815) ; Rem. 74. Condonation by the husband is not established by a continuance of residence in the same house, the parties being separated at bed and hoaxA.—8tedman v. Stedman, 6 P. 675 (1742) ; Aff. See M. 7337. 75. Divorce granted on the ground of adultery, although the pursuer had previously instituted an action for damages against the alleged paramour, but in which the jury, subsequent to the sentence of divorce in the Court below, but prior to the judgment on appeal, found the n2 196 HUSBAND AND WIFE. [Divorce. adultery not proven, and which verdict the Court refused to disturb. — Boyes v. Baillie, 3 Bligli, 491 (1821) ; Aff. 76. The creditors of the husband have no title to oppose a divorce sued for by the wife even as to its pecuniary effects, and though the adultery occurs after the husband's sequestration. Proof of collusion must be offered, if at all, before the oath of calumny is emitted. Condo- nation by the wife will not be implied while she had nothing more than suspicion of her husband's adultery, — Gfreenhill v. Aitken, 2 S. Ap. 435 (1824) ; Aff. 1 S. 296. 77. Withdrawal by a husband from the wife's society, refusing to allow her family or others to see her, or to allow her to go to church, and evident dislike of her, are not sufficient to entitle her to separation. Observed that the habitual use of opprobrious and insulting language, or encouragement to others to use such language, would alter the case. On reversal costs not given to the wife, respondent, but she is allowed to retain the costs given in the Court below. — Paterson v. Russell, 7 S. Bell, 337 ; 3 H. L. Ca. 308 (1850) ; Rev. 78. Divorce granted although the adultery was committed after a separation a mensa et thoro, and denied by the alleged paramour. — Ritchie v. Ritchie, 4 M'Q. 162 (1861) ; Aff. 79. "When a domiciled Scotsman married iu Gibraltar an English- woman, separated from her, under deed, in England, and continued to reside there ; remit to consider whether he could sue a divorce in Scotland, in respect of acts of adultery alleged to be committed in Eng- land, or in Scotland, after separation. Opinions per Lord Eldon and Eedesdale, that after the separation the forum of the wife did not follow that of the husband. — Tovey v. Ldndsay, 1 Dow, 117 (1813) ; Rem. M. Forum Com. No. 6. 80. A domiciled Scotsman, marrying in England an Englishwoman, may sue a divorce in Scotland, on account of adultery committed abroad. Personal service on the wife abroad, and edictal service, is sufficient in such case, without service at the husband's dwelling-house in Scotland. A contract of separation is not a bar to a suit for divorce, and it does not affect the rule that the husband's domicile is the wife's. — Warrender v. Warrender, 2 S. ^ M'L. 154 ; 9 Bligh, N.S. 89 ; 2 CI. 4 Fin. 488 (1835) ; Aff\ 12 S. 847. 81. A sentence of divorce a mensa et thoro, obtained in England in the case of a Scottish or English marriage, is not a bar to an action for divorce in Scotland. — Geils v. Geils, 1 M'Q. 255 ; 2 Stu. H. of L. 13 (1852); Aff. 13 D. 321. 82. A divorce in Scotland of an EngHsh marriage, the parties not having become domiciled in Scotland except for the mere purpose of jurisdiction in the suit, is not effectual in England, and does not INFEFTMENT. 197 operate as a divorce a mensa et thoro. Question, Whether after a separation the wife can acquire an independent domicile ? — Dolphin V. RoUns, 3 M'Q. 563 (1859) ; 7 H. L. Ca. 390; Aff. Ct. of Probate. 83. Divorce cannot be obtained by a husband in Scotland for adul- tery by the wife in England, unless the domicile of succession of the party suing has become Scottish. Question, Whether if it had, the wife remaining in England, the Scottish Courts could grant divorce ? — Pitt V. Pitt, 4 Jf.Q. 627 (1864). See 30, 60. See Appeal, 86 — Evidence, 7. INFEFTMENT. 1. A charter containing a dispensing clause warranting infeftment by the grantee, his heirs and assignees, in any part of the lands though discontinu.ous, carries the privilege to the disponee iu liferent of part of the lands. — LyaUw. Skene, and Ogilvie v. Skene, 2 P. 138 and 141 (1768) ; Eev. M. 8792. See Eeduction, 2. N.B. — The judgment in the former case only extended to a point of practice in special circumstances. 2. Question, Whether the Crown can grant a clause of dispensation uniting lands for the purpose of infeftment, of which part only were held of the Crown, and the remainder of the Prince. — Whitefoord v. Whitefoord, 3 P. 101 (1788); Aif. 3. A charter containing a clause of dispensation authorising sasine to be taken at the manor-house for the whole lands and every part thereof, warrants infeftment at the manor-house in a single portion of the lands, though the manor-house does not lie within it. — Morehead ». Edmonstone, 3 P. 199 (1791); Aff. M. 8793. 4. Question, Whether on sale of part of a barony, sasine at the manor- jjlace, which was unsold, was valid ? — Finlayson v. Innes, 4 P. 443 (1803) ; Aff. 5. The benefit of a clause of union granted to heirs of entail enures to a heritable creditor taking sasine on the lands at the place designated in the clause. — Ferrier w. Moubray, 7 W. & S. 147 (1834); Aff. 10 S. 773. 6. A sasine need not mention the special symbols used in giving infeftment, and the record need not contain the notary's sign and mark. The precept under the quarter seal on which a sasine proceeds need not be produced to support the sasine on its being challenged. — Lord Advocate v. Urquhart, Cr. & St. 586 (1755) ; Alt. M. 9915. 7. An error in a sasine as recorded in stating the designation of the writer of the deed on which it proceeded, and an error in stating that 198 INHIBITION. the symbols were delivered to John Bum the foresaid procui'ator, while his name was previously given as John Bryce, are immaterial, the pria- cipal sasine being lost, so that it did not appear that the errors had not crept in in transcribing into the register. — Lord Napier v. Livingstone, 2 P. 108 (1765). 8. The omission in a sasine of the surname of one of the witnesses of the charter is not fatal. — Lawrie «. Livingstone, 6 P. 194 (1816); Aff. ■ 9. It is no objection to a sasine that the witnesses sign only the last page. — Duke of Hamilton v. Douglas, 2 P. 449 (1779) ; Aff. M. 4358. 10. In a sasine the last syllable of the word Coble-house being written on an erasure throughout, the sasine is void. — Innes v. Earl of F^, 2 W. & S. 637 (1827) ; Aff. 5 S. 559. 11. The non-insertion of the Christian name of the bailie by whom iafeftment is given is immaterial, and the writing the Christian name of one of the attesting witnesses on an erasure in the testing clause is also immaterial. —Morton v. Hunters, 4 W. & S. 379 (1830) ; Aff. 7 S. 172. 12. The words " and three" in the date 1803 being written on erasure, though agreeing with the year of the king, vitiates the sasine. — Hogganu. Eanken, 1 Eobin. 173 (1840) ; Aff. 13 S. 461. 13. It is doubtful if a precept of sasine can be used to contradict the charter. (Per Lord Eedesdale.) — Dixon v. Grahame, 5 Dow, 266 (1817); Eem. 14. A sasine, null through being unrecorded, does not exhaust the precept. —Kibbles v. Stevenson, 5 W. & S. 553 (1831) ; Aff. 9 S. 233. 15. Infeftment in fee-simple on a precept in a charter of tailzie is bad, and does not exhaust the precept. — Cochrane v. Craig, 2 Eobin. 446 (1841) ; Aff 16 S. 1332. /See Deed — Entail, 19 — Peescription, 15-^ProvingthbTenoe, 1 — Superior and Vassal. INHIBITION. 1. The use of the word " bond" instead of " bonds" in the wiU of an inhibition, the narrative setting forth two bonds, does not deprive it of effect as to both bonds. — Blackwood v. AUan, Cr. & St. 640 (1737); Aff. M. 6991. 2. An order of the Court of Session recalling an inhibition as nimious and oppressive, and ordering it to be scored in the record and marked on the margin as done by authority of the Lords, affirmed as regards the recall, but quoad ultra reversed. — Eullarton v. Hamilton, 1 W. &S. 531 (1825); 2 S. 264. INSUEANCE. 199 3. An inhibition on a claim for meliorations by evicted purchasers against the heir in possession of an entailed estate, who has instituted a counter-suit for a much larger sum, recalled without caution. — Agnew V. BeH, 1 W. & S. 709 (1824) ; Eev. 4 S. 51. 4. An inhibiter is not entitled, on a sale in bankruptcy, to draw back full payment from a posterior heritable creditor infeft, but only to draw back from him so much as will put the inhibiter in the same position as if the subsequent heritable security had not been granted. — Gordons. CampbeU, 1 S. Bell, 563 (1842); Eev. 3 D. 629. 5. An error Lu the entry of an inhibition in the records, consisting in a misstatement of the sum, although in other parts of the inhibition the sum is correctly stated, is fatal to it. — Malcolm v. Mansfield, 6 S. BeU, 359 (1849) ; Aff. See Arrestment, 3 — ^Entail, 173 — Feb and Liferent, 10 — Heirs, 20 — Husband and Wife, 34. INSUEANCE. 1. An insurance against being drawn in a militia ballot does not make the underwriters liable if the ballot is void, or if the insured, being really exempt, does not state his exemption. — Scott v. Macintosh, 2 Doie, 322 (1814). 2. A building insured being warranted to be of the fiist-class, which implied that it had no pipe above two feet long leadiag into a chimney, and having, in fact, such a pipe, the policy is void. Observed that every material circumstance is matter of presumed warranty in insur- ance, but that express warranty applies equally to immaterial circum- stances. — Newcastle Fire Ins. Go. v. Macmoiiran, 3 Doio, 255 (1815) ; Reo. 3. A loan by an insurance company on the security of a policy to be effected with them is a legitimate transaction, and it being alleged, on the one hand, that the policy had been allowed to expire, and on the other, that a biU had been given to the manager for payment of the premium due, which he had agreed to take for that purpose ; remit to ascertain the facts, and to consider whether the directors or company could take a bill for such a purpose. — North British Ins. Co. v. Barker, & W.^ S. 323 (1833); Rev. 9 S. 869. See Contract, 17 — Foreign, 6 — Husband and Wife, 65. 200 INSURANCE, MARINE. [Contract of. INSURANCE, MARINE. I. Contract of, . . p. 200 HI. Deviation, . . . p. 202 :i._ Concealment and MisRE- IV. Seaworthiness, . . 203 PRESENTATION, . . . 201 V. Abandonment, . I. Contract of. . 203 1. A security being granted over a ship, in the form of an absolute sale, the original- owner has stiU an insurable interest. — Alston v. Campbell, 2 P. 492 j 4 Br. P. C. 476 (1779); Aff. 2. A ship in a foreign port being insured in this country at a certain sum, " without account," the underwriters are bound to pay it with deduction only for salvage, though it greatly exceeds the real value, and interest is due on the sum from the date of the decree of the Admiralty Court.— ilf'iVair v. Coulter, 2 P. 297 ; i Br. P.C. 450 (1773) ; Rev. M. 7106. 3. Under an agreement relative to a policy in time of war, the owners of a neutral vessel became bound that she should produce proof of being a neutral vessel, with neutral cargo, before a claim was made in case of capture; held that on capture and condemnation, in virtue of the want of a special proof of neutrality required by an ordinance of one of the belKgerents, made at a time when it could not be known to either owners or insurers before the ship sailed, the underwriters were liable, it being admitted that the vessel had all proof usually required of neutra^ Uty. English Judges consulted. — Lothian v. Henderson, 4 P. 484 (1803) ; Aff. M. Insurance, Ap. No. 4. 4. The Diana, without letters of marque, having recaptured the Lady Bruce from the enemy, and the owners of the Diana having effected an insurance " upon the supposed salvage due to the Diana on the Lady Bruce, retaken and carried into Norway," and the Lady Bruce having been again captured ; held that the terms in which the salvage is described as the subject insured were such as to make the policy inept and void. — Smith v. Yelton, 5 P. 139 (1806) ; Rev. M. 11962. 5. An insurance was effected in this country on a trading ship at sea, with liberty to call at a certain port. In former policies on the Kke voyage there had been liberty to call at other ports. On the day on which the policy was dated, she put into one of these other ports, and after sail- ing thence was lost, held that the underwriters were not liable ; but as they had, in fact, incurred no risk from the contract being void ah initio, they were bound to return the premium. — Elliot v. Wilson, 2 P. 411 ; 4 Br. P. C. 470 (1776) ; Rev. M. Ap. vol. i. Insurance, p. 1, No. 1. 6. An insurance on a ship to sail to New Orleans, " to return 1 per Concealment, ^c] INSURANCE, MARINE. 201 cent, if the voyage end at Pensacola," comes to an end on her arrival at Pensacola, if it appears that there was then no intention that she should proceed further, and that, in fact, she could not, the port of New Orleans heiag at the time closed to British vessels. — Newligging v. Maegregor, 1 S. Ap. 1171 (1822); Rev. 7. An insurance to and from a " port ia Spain" covers a loss in an open roadstead, without any artificial works of protection, but used commonly for discharging and loading vessels by means of small craft, and having a "port-captain," custom-house, " and "vice-consul of the port." — Sea Ins. Co. v. Gavin, i W. ^ S. 17 ; 4: Bligh, N. S. 578; 2 Dow ^ Clark, 125 (1830) ; Aff. 5 8. 525. II. Concealment and Misbepebsentation. 8. A policy is not rendered void by non-communication of a letter from the captain stating the great danger of capture on the intended voyage, such danger being a fact well known to the public, and causing the policy to be taken at a 25 per cent, premium. — Thomson v. Buchanan, 2 P. 592; 4 Br. P. C. 482 (1785); Reu. M. 7085. 9. On evidence of a probability of knowledge on the part of owners, at the time of effecting the policy, that the vessel had been captured, the insurance is void. — Stewart v. Dunlop, 3 P. 14 ; 4 Br. P. C. 483 (1785);^/. 10. A policy is void if a leak, though stated to the underwriters, is more serious than they had been led to believe, and if, unknown to them, information has been received by the owners that the ship was overloaded and insufficiently manned. Putting into Elsinore from Stockholm to Dublin, to pay the duties, and get more hands and neces- saries, is a deviation which avoids the policy. — Campbell v. Russell, 3 P. 340 (1794); Rev. 11. Non-communication of the statement of the captain of a vessel as to the date at which he expected her to arrive at her destination, does not avoid the policy. - — Smith v. Allan, 5 P. 229 (1808) ; Aff. 12. Failure to communicate information respecting the amount of repairs which had been needed by the vessel, though she was after- wards certified as sea-worthy, and respecting the inactivity of the captain, which led to her failing, after the date of advice, to join con- voy at the appointed time, and being consequently delayed and ulti- mately lost, held to avoid the policy. — Smith v. Bogle, 5 P. 248 (1809) ; Rev. F. C. 22 Maij 1804. 13. An insurance is avoided if the fact of the vessel having another as tender, which causes some delay, is not mentioned. — Henderson v. Allan, 5 P. 736; 1 Dow, 324 (1813); Aff. F. C. 20 Feb. 1812. 202 INSURANCE, MARINE. [Deviation. 14. A statement to an underwriter at Leith, that the insurance had been partly effected at Lloyd's at a rate which was greatly under the rate actually paid at Lloyd's, avoids the policy. — Sihhald v. Hill, 2 Dow, 263 (1814) j Rev. F. C. 10 June 1809. 15. The owners being well aware that the vessel to be insured was to sail without convoy, insured her at " ten guineas, to return five guineas for convoy and arrival ;" held that th^ policy was void. Ques- tion, Whether concealment that she was a prize coming home for con- demnation, avoided the poHcy? — Retd v. Harvey (Nancy), 6 P. 197 ; 4 Dmu, 97 (1816) ; Aff. 16. A vessel being insured from one foreign port to another, on ad- vices received from the owner's agents at the port of departure, but the agents having changed her destination, and she being lost before sail- ing, of which facts the owners received information on the same day, but concealed the change, and recovered on the policy ; held that they were bound to have communicated the change of destination, that it avoided the policy, and the underwriters were entitled to a return of the sum paid. — Tasker v. Gunninghame, 1 Bligh, 87 (1819) ; Rev. 17. An insurance on 17th June, of a ship as having been intended to sail from a foreign port about 1st May, whereas, m fact, she had ' sailed on 23d April and been captured on 11th May, is bad for mis- representation, though there was no fraud in the owners. — Dennis- toun V. Ullie, 1 S. Ap. 22 ; 3 Bligh, 202 (1821) ; Aff. 18. A vessel being insured on 21st April, on a representation that she was On the point of sailing, and not having sailed tiU 8th June, and war being declared in July and the vessel being captured, the policy is yoO. — Stirling v. Goddard, 1 S. Ap. 238 (1822); Aff. IIL Deviation. 19. A deviation from the proper course, resulting in loss of the ship, must be clearly proved to have been wilful, or the insurance will re- main vaUd. — Grahame v. M'Nair, 2 P. 244 (1770) ; Aff. 20. An insurance on a vessel to Eotterdam, with liberty to call at a port in England, is void if she is despatched with orders to discharge at a port ia England not in the direct route to Eotterdam, except as to such of the underwriters as signed an endorsement of the deviation. — Laird y. Robertson, 3 P. 232; 4 Br. P. C. 488 (1791); Rev. M. 7099. Same case, 3 P. 443 (1796) ; Aff. 21. "Where the original destination in the charter-party was to Eotterdam, but the charterer's agents gave the captain power to pro- ceed to London or Newcastle, the difference of freight being to be Abandonment] INSURANCE; marine. 203 settled by arbitration, an insurance on the freight to London or New- castle ia valid. — Hall \. Broim, 2 Dow, 367 (1814); Aff. F C 2d Feb. 1810. 22. Evidence of a letter from the master, making statements as to the cause of deviation and delay, admitted, though the letter itself was not produced, and an official protest by him ia a foreign port held sufficient to prove justifiable deviation, though it would not be so in England. In case of damage to cargo, the best way of ascertaining it is by sale, but a valuation is admissible. — Smith v. Macmil, 2 Dow, 538 (1814); Aff. 23. A policy of insurance on a vessel, with liberty to her to touch and stay at any port on the voyage, is not vacated by an accident which causes her to be brought back to the port from which she sailed, but continues on her sailing a second time, nor is it vacated by the occur- rence of circumstances which, it is alleged, would make it necessary for her to deviate from the intended voyage, if, in fact, the loss takes place before the deviation takes place, and no intention to deviate was formed prior to sailing. — Brown v. Maxwell, 2 S. Ap. 373 (1824); Bev. 1 S. 403. See 5, 10, 16. IV. Seaworthiness. 24. A vessel which had been lengthened fourteen feet, the addition being without knees, and the rigging and tackle being left unaltered, held unseaworthy. — Watt v. Morris, 5 P. 697 (1813) ; 1 Dow, 32 ; Bev. 25. Although a ship is to be presumed seaworthy, yet when having, after sailing, without any severe stress of weather, become leaky and put back, the onus probandi of being seaworthy at the time of sailing ■ lies on the owners, and on failure the insurance is void. — Bobinson v. Clark (Midsummer Blossom), 5 P. 698; 1 Dow, 336 (1813); Bev. ; Parker v. Potts (La Gloire), 3 Dow, 24 (1815); Bev.; WilUe v. Geddes (Mary), 3 Dow, 57 (1815); Bev.; Douglas y. Scougall (North Star), 6 P. 179; 4 Dow, 269 (1816); Aff. Campbell v. Hamilton (Sarah), 6 P. 219 (1816) ; Aff. See 12. 26. A vessel is not seaworthy if the best bower anchor and the cable of the small bower anchor are defective. — Wilkie v. Geddes (Mary), 3 Dow, 57 (1815) ; Bev. SeeF C. Uth Feb. 1816. V. Abandonment. 27. The vessel having been taken possession of by mutineers, and the cargo having been sold by government officers on her recapture, before she could be recovered by the owners, they are entitled to abandon, and abandonment being duly intimated is not waived by 204 INTERDICT. their acting afterwards for the benefit of the underwriters. — Brown v. Smith, 5 P. 718 ; 1 Dow, 350 (1813) ; Eev. 28. A vessel being captured, and notice of abandonment being given to the underwriters, and accepted by them, it is not competent for them, on receiving intelligence of her recapture, to claim to settle as for only a partial loss. Question as to the law in case the underwriters had not first accepted the abandonment. — Smith v. Rohertson, 2 Dow, 474 (18U ; Aff. 29. The owners after having received advice of their ship having put in for repairs into a foreign port, and being under repair, and per- mitting her to be freighted thence, without notice of abandonment, cannot afterwards claim for a total loss. — Fleming v. Smith, 6 S. Bell, 278 ; 1 H. L. Ca. 513 (1848) ; Ag. 8 D. 627. See Shipping, 1. 30. A ship is totally lost when the cost of repairs would be greater than her value when repaired, and as such she may be abandoned, though the injury is received at the entrance to the dock, but on such abandonment any freight earned belongs to the underwriters. — Stewart V. Greenock Marine Ins. Co. (Laurel), 1 M'Q. 328 ; 2 H. L. Ca. 159 (1848) ; Aff. 8 D. 323. 31. Although a ship may be abandoned to the underwriters as a total loss, yet if she actually delivers her cargo, ajid so earns freight for the underwriters, the owners have no claim against the underwriters of freight for the amount so earned, as it is not a case of loss of freight. — Scottish Marine Ins. Co. v. Turner (Laurel), 1 M'Q, 334 ; 2 Stu. H. L. 46 (1853) ; Rev. 13 D. 989. See Shipping, 8. INTEEDICT. 1. In a petition and complaint for breach of interdict granted by the Lord Ordinary, claiming damages, or fine and imprisonment, it is competent for the Court to renew and modify the interdict. — Mags, of DingwaU v. M'Kenzie, 5 W. & S. 351 (1831) ; Aff. 7 S. 899. 2. Interdict is not, to be granted where the parties against whom it is sought have not done or threatened to do anything inconsistent with the petitioner's rights. — Weir v. Glenmj, 7 W. 4^ S. 244 (1834) ; Aff. 10 S. 290. 3. A railway company having been interdicted from entering certain lands for informality, and having cured the informality and entered before applying for recall of the interdict, held that this was a breach, but only a technical breach, and the Court having fined the company and directors L.300, the fine against the directors was reversed, and against the company reduced to 40s. Costs of the appeal not given, as INTEREST. 205 the judgment was materially altered. — Caledonian Ry. Oo. v. Hamilton, 7 S. Bell, 272 (1850) ; Alt. 4. An interdict will not be granted against a railway company taking steps to procure its dissolution, it having never commenced operations on the works, at the instance of a landowner on the line, with whom an agreement as to the deviation of the proposed line had been made before the biU was procured, but who has failed in the Court below in a declarator of his right to compel them to proceed. The House will not allow the material part of the interdict sought to be abandoned merely to save dismissal. — Anstruther v. East of Fife Ry. Co., 1 M^Q. 98 ; 1 Stu. 691 (1852) ; Aff. 12 D. 127. See Burgh, 36, 37 — Coptright, 2 — Corporation, 4 — Landlord AND Tenant, 18, 46, 64 — Libel, 8 — Master and Servant, 5- — Nuisance — Property, 26 — Salmon, 24 — Sheriff, 4. INTEEEST. 1. Interest is not due on an acknowledgment of debt without express stipulation. — Garden v. Eigg, Cr. & St. 409 (1748) ; Aff. 2. Bonds granted in terms of an Act of Parliament, which does not declare that they shall carry interest, do not bear interest. — Haldane V. Elphinston, 2 P. 546 (1780); Aff. 3. The Court of Session, affirmed by the House of Lords, having fixed the amount of salary past due, on an indefinite engagement, to the manager of a glass-work, interest does not run on the arrears prior to the amount being so fixed by the Court of Session. — Wallace v. Geddes, 1 S. Ap. 42 (1821); Rev. 4. Per Lord Wynford : "I wish that, with regard to interest on money lent, the English law were assimilated to the Scotch." Interest given on arrears of a bond of annuity which had been delivered back by the grantee in a fit of insanity. — Marquis of Bute v. Cooper, 4 W. 4- S. 335 (1830) ; Aff. 5 S. 831, and 7 S. 223. 5. The House having declared that the holder of bonds in India was chargeable with the interest due upon them, and at the rate of 12 per cent, from the time they were paid, subject to deduction of the charge of remittance fi-om India, this deduction only extends to commission and exchange, and does not include a year's interest, which was alleged to be lost by the ordinary form of remittance, in the shape of twelve month's biUs. — Keble v. Graham, i W. 4^ S. 166 ; 7 Bligh, N. S. 410 (1830) ; Rev. 6 S. 119. See Executor, 4. 6. Debts being incurred by a Scotsman in England, and his wife having, after his death, undertaken to pay them, interest is to be com- 206 JUSTICKS OF PEACE. puted as by the law of England, and allowed therefore on debts by- bond or bill, but not on tbose standing on open account. — iMdy Mont- gomerieY. Rundell, 12 Dow ^ Clark, 297; b W. 3^ S. 201 (1831); Aff. 8 S. 286. See Action. 145. 7. Compound interest not allowed on an heritable bond, though re- covery of payment on it had been impeded by fraudulent transactions of the debtor with the creditor while in a state of imbecility. — M'Neill V. M'Neill, ^W.^S. 455 ; 2 Dow ^ mark, 454 (1830) ; Rev. 4 & 620. 8. The holder of an heritable security, being also executor of the debtor, is in neither capacity entitled to commission on the proceeds on seUing it. Being a banker, and allowed by the other creditors to retain the balance pending a settlement, he is liable to them for interest at 5 per cent, but not for the bank profits. — Roharts r. Court, 3 S. 4' M'L. 317; 6 CI. ^ Fin. 65 (1838); Aff. 13 S. 173. 9. An account opened with a mercantile house in India, on which Indian interest was allowed, being closed, leaving a balance due by the company, of which an account was furnished, bearing a docquet that it should bear interest at 9 per cent., the account is thus liquidated, and interest at the said rate is due until paid, although not paid for many years, but compound interest is not due by the law of England, which, in the absence of special custom, regulates Indian transactions. — Fer- gusson v. Fyffe, 2 Rohin. 267; 8 CT. ^ Fin. 121 (1841); Aff. 16 S. 1038. 10. Under an agreement that 4 per cent, should be allowed on a debt ascertained as due by agreement tiU it should be paid, the Court cannot allow 5 per cent, after the lapse of two years, on the ground that it was intended it should have been paid before then. The agreement having also provided that a stated sum should cover expenses, past and fature, this applies to expenses incurred in establishing a certain item of the debt which was disputed. — Scott ir. Sandeman, 1 M'Q. 293; 1 Stu. 882 (1852) ; Rev.W D. 405. See Adjudication, 1, 2, 6 — Bank, 6 — Conveyancing, 20 — ^Factor, 1, 3 — Husband and Wifb, 59, 62 — Insukance, Marine, 2 — Provision to Chiij)ren — Security, 1, 11 — Stamp, 3. JUSTICES OE PEACE. 1. The statute, 24 Geo. II. c. 44, limiting actions against justices of peace to six months, though not expressly restricted to England, does not extend to Scotland. — Duke of Douglas v. Lockhart, 6 P. 706 (1755); Eev. M. 7638. 2. Held that the postmasters of a town, agreeing to raise their rates, Legal Relations.] LANDLORD AND TENANT. 207 might he punished for illegal combination ; but that the justices had no power to fix the rates. — Smith v. Seott, 4 P. 17 (1798) ; Aff. M. 7625. 3. Eemit to review an interlocutor referring to the Lord Advocate to consider the propriety of one guilty of assault being retained in the Commission of the Peace, or of his being bound over to keep the peace ; but observed afterwards that such remit should not have been ma.Ae. ^ Macdonell v. Macdonald, 2 Dow 66 (1813) ; 2 Dow 285. 4. A justice of peace is liable to an action of damages for slander on account of words spoken on the bench, where malice is proved, but evidence of the malice must be given besides the words. (Per Lord Wynford) — Malice may be inferred by a jury if a magistrate employ an agent to prosecute a case which he is to decide. — Altar dice v. Mobertson, 4 TF. ^ /S. 102 ; 1 Dow ^ Clark, 494 (1830) ; Rev. 7 S. 601. ^ee Court of Session, 11. 5. A depute-clerk of justices of peace having brought before them a complaint, in his character as clerk also of road trustees, and prose- cuted it by a clerk of the firm of which he was a member, he was suspended by the Court of Session from his office for a twelvemonth ; but the House considering this too severe, recalled it, and inflicted upon him, by way of penalty, payment of costs amounting to L.269. — Gampl)6ll V. M'Farlane, i W. ^ S. 123 (1830) ; Alt. 5 S. 537. 6. A justice of the peace may take an affidavit although out of Scot- land. — Z^ew v. Marquis of Ailsa, 1 M'Q. 736 (1854) ; Aff. 14 D. 864. 7. A party apprehended on an offence triable by a justice of the peace is not entitled to object to undue detention while the officer is in search of a justice to hear it, although, from the refusal of several justices, such detention lasts for two days, and is at the prison of the town, and the jurisdiction of the justice is not affected by such delay. — Evans v. M'Lmighlan, 4 M'Q. 86 (1861) ; Rev. 21 D. 532. See Admiralty, 3 — Burgh, 16 — Court of Session, 4 — Statute, 22. LANDLOED AND TENANT. I. Legal Eelations, . . p. 207 II. Htpothec, 210 III. Constitution op Lease, . 210 IV, Assignation of Lease, . 212 V. Construction of Lease, p. 213 1. Entry and Removal, . .213 2. Subjects and Improvements, 214: 3. Miscropping, .... 216 4. Wa/ygoing Crop and Straw, 216 I. Legal Eblations. 1. The right of the kindly tenants of Lochmaben to possess in per- petuity and con^y to singular successors, sustained, though not founded 208 LANDLORD AND TENANT. [Legal Relations. on charter and sasine. — Viscount Stormont v. Henderson, Cr. & St. 77 ; 8 Br. P. C. 270 (1732) ; Aff. M. 15195. 2. A lease for 1 140 years on a grassum, on which infeftment has been taken, with possession for above forty years, is vaUd against singular successors, or against the Crown on attainder of the landlord. — Frazer V. Lord Advocate, 2 P. 66 (1762) ; Eev. M. 15196. 3. There is no objection in law to a lease renewable every nineteen years on payment of a fine or grassum. — ^ Scott «. Straton, 3 P. 666 (1772) ; Afi'. M. 15200. 4. Improving leases at an under rent, and for a term of fifty-seven years, not commencing for fifteen years after date, granted by a man of eighty-eight years of age ; held not reducible, facility and lesion not being proved. — Viscount Arbuthnott v. GiUies, 4 P. 1 (1797); Aff. C. S. 1797. 5. After decree of removal of tenants, but before the term of their removal, the landlord sold the estate ; held that the purchaser, though uninfeft, might remove the tenants at any subsequent term, as in respect of the former decree their possession could be ascribed only to the permission of the new landlord. — Finlayson v. Innes, 4 P. 443 (1803) ; Aff. 6. When a tenant has accepted new buildings as sufficient, he is not entitled to damages on their being blown down. — Lord Kinnaird v. Matliewson, 4 P. 429 (1802) ; Rev. 7. In a lease of salmon-fishings with absolute warrandice, so far as the several stations had been hitherto fished or occupied, the lessee is entitled to damages if the lessor, by any operations, injures one of the stations, although the rest are stiU. of value equal to the whole when \et— Hall Y.Ross, 5 P. 729 j 1 Dow, 201 (1813); Rev. 8. A tenant cannot call upon the landlord to rebuild a house burned down by accident, although he may be entitled to abatement of rent. The tenant, though bound to repair and uphold, is not liable to rebuild in such case. Question, as to what is negligence occasioning the Sie. — Bayne Y. Walker, 6 P. 217; 3 Dow, 233 (1815); Rev. F. a, 30 May 1811. See Superior and Vassal, 25. 9. A tenant having agreed to renounce his lease at a future date for a certain sum, and meantime to observe a particular method of cropping, which he did ; but the landlord having become bankrupt before arrival of the period of surrender, and his trustees having advertised the farm as to be let from that period, this does not amount to personal or official homologation of the agreement, and the tenant can only rank as a creditor for the price of renunciation, or retain his lease and sue the landlord for damages for non-implement. — Ferrier v. Hector, 1 S. Ap. 159 (1822) ; Rev. Lp.gal Relations.} LANDLOED AND TENANT. 209 10. The sheriff has power to declare a conventional irritancy as one of the conclusions of a process of removing, and such irritancy is suf- ficiently libelled if the lease itself is libelled. A removing is com- petent, though the landlord is in possession, if the tenant threatens to re-enter. —Taylor v. Boyle, 2 S. Ap. 30 (1824) ; Aff. 11. A singular successor is bound by stipulations in a lease for re- payment to the tenant of meliorations, and the tenant may retain the keys of the houses until the landlord agrees to a valuation being made. — Fraser v. Maitland, 2 S. Ap. 37 (1824) ; Aff. 12. Damages are not due for miscropping after the termination of a lease, unless notice has been given to the tenant at the time. — Fraser V. Maitland, 2 S. Ap. 37 (1824) ; Aff. 1 3. A party taking a lease of the lower mill of three belonging to the lessor, who had advertised them as having an abundant supply of water, is not entitled to refuse payment of his rent on the ground of an alleged deficiency, which, if it exists, is due to the illegal conduct of the tenant of the highest miU ; but he may have a yight to damages against such upper tenant. — AitehisonY. Mags, of Glasgow, 1 IF. ^ ;Si. 153 (1825) ; Aff. 1 S. 503. 14. A landlord having let a paper-mill, but made no objection to its use as an oil-mill for five years, and as a flour-miU for one, is not entitled to require it to be restored to use as a paper-mill. — Young v. Eamsay, 1 W. 4- 8. 560 (1825) ; Aff. 2 S. 793, 15. A landlord is entitled to sequestrate for rent, and bring an action of maUls and duties at the same time, although the lease contains, in addition, a- clause of registration for diligence ; but costs not allowed on account of the hardship of the case. (Per Lord Cottenham) — The landlords- ought to give the tenants some relief from the pressure of the law of hypothec for rent. — Pentland v. Booth, 5 W. & S. 228 (1831) ; Aff. 8 S. 196. 16. A tenant cannot refuse to pay his rent to a creditor infeft in security on the estate, who brings an action of madls and duties, on the ground that the proprietor has subsequently disponed the estate to a trustee for himself, who has sequestrated for rent, for the latter right is clearly postponed to the former. — Pentland v. Boo*h, 5 W. & S. 228 (1831) ; 8 S. 196. 17. A tenant, as well as a landlord, is bound to give forty days' notice of his intention to remove on the expiry of a lease for years, otherwise he will be liable by tacit relocation ; and notice to a factor appointed to receive the rents, but who replies that he has no authority to receive such notice, is not sufficient. Whitsunday is the 15th, not 26th May.— M'Intyrew M'^b's Trs., 5 W. & S. 299 (1831) ; Aff. 8 S. 237. 210 LANDLORD AND TENANT. [Constitution of Lease. 18. The extent of ground and other pertinents contained in a lease having been made the subject of a suhmission, and the arbiters having found that a piece of ground shoidd be included for the pinrpose of a stance for a straw stack, and a right of way allowed over a road, interdict is competent against the erection by the tenant of sheds or houses on the piece of ground or the road. — Walker v. Grant, 1 Bobin. 154 (1840) ; Aff. 1 D. 38. See infra (Assignation of Lease) ; also Action, 11 — ^Appeal, 118 — Bankkuptct, 4, 49, 75, 76 — Coal — Convetancing, 21-24^^ Entail, 111-132 — Hebitable and Moveable, 10 — Liferbnteb, 4 — Mines and Minerals, 1 — Nuisance, 2 — ^Public "Works, 24 — Statute, 29. II. Hypothec. 19. An arrestment on a Crown debt has preference over the land- lord's hypothec. — Ogilvie v. Wingate, 3 P. 273 ; 6 Br. P.O. 498 (1796); Rev. M. 7884. 20. Hypothec extends over grain sold two years before by sample, in open market, and delivered and paid for at the time. — Smart v. OgUvy, 3 P. 490 ; 4 Br. P.C. 498 (1796) ; Aft 21. A hand fide purchaser of grain from a tenant, for which he has paid the tenant, is liable to second payment to the landlord under Ms hypothec, if the sale has been by sample in a market where grain is usually sold in bulk. Affirmance without costs. — Dunlop v. Earl of Dalhousie, 4 W. & S. 420 ; 7 Bligh, N.S. 422 (1830) ; Aft 6 S. 626. 22. Premises being let at a certain rent, and with an agreement that the tenant should pay a further annual sum to be fixed by arbitration, for the use of steam-power and water communicated from an adjoining building, this last sum is not rent for which the landlord can exercise his hypothec, or (in England) distrain. Opinion that it is not a covenant running with the land. — Cattems v. Tennent, \ S. ^ M'L. 694 (1835) ; Bev. 12 S. 686. 23. A landlord is not bound to withdraw a sequestration for rent on receiving from a third party an offer to pay the amount on receiving an assignation to the sequestration. — Gordon v. Graham, 2 Eobin. 251 ; 8 CI. & Fin. 107 (1841) ; Alt. E. C. 2d February 1841. See 15, 16, 41 — Cautioner, 24. ' in. Constitution op Lease. 24. Tenants in possession having made a written offer of lease, which the landlord's factor accepted as regards rent and duration, but re- served for adjustment questions of steelbow and entry, &c., and after- wards sent them a lease to be signed, which they did, and continued in Constitution of Lease.] LANDLOED AND TENANT. 211 possession in acGordance with it, it is binding on a prior incumbrance, though not signed by the landlord. — Stewart v. Countess of Moray, 2 P. 317(1773); Rev.M.i392. 25. Where lands are let subject to general conditions applicable to many farms, and accepted by a docquet, the Court wlU construct the actual lease so as best to carry out the conditions in so far as applicable. Strationy. OraJiam,3P. 119 (1789);i?eTO. F. C. ISthDee. 1811, note.. 26. Possession wiU not support a lease granted by an informal writing, unless it is attributable solely to the writing ; thus an informal agreement for a new lease to commence after expiry of the old one will not be supported by possession attributable to the old lease. — Kerr v. Redhead, 3 P. 309 (1794) ; Rev. Bell, Ca. 202. 27. A government board vested in a forfeited estate having by minute " proposed to grant a lease as prayed for, on the usual conditions," to the widow of the attainted party, whom faiUng, to his daughter, but on which no possession followed, and the estate being afterwards re- stored to her son, and sold by him, the daughter has no claim under the lease against the purchaser. — M'Lean v. Cameron, 3 P. 474 (1796);^/. 28. An offer of lease in writing, retained by the landlord, and fol- lowed by possession on the part of the tenant, is binding, and cannot be controlled by conditions not intimated by the landlord as to the terms.— Keir v. Duke of Atholl, 6 P. 131 (1815); Rev. 29. A parole agreement that the tenant should get another farm on being removed from one he at the time held, on being established in a declarator, is sufficient to bar his removal from the substituted. farm, although he had obtained possession of it on a different title from the agreement ; but question, whether, had he not been in possession of the substituted farm, he could have obtained possession under an agree- ment which was uncertain as to rent and other conditions. — M'Donell V. Cameron, 2 W. ^ S. 592 (1827) ; Aff. 3 S. 340. 30. A reference in a lease to conditions of articles of lease, held as repeated as part of the lease, is sufficient to make them binding. Possession under a draft signed as approved of, but not probative, makes it equivalent to a probative deed. — Gordon v. Anderson, 3 W.4'S.1;3 Bligh, N.S. 351 (1828) ; ^/ 4 ;S. 13, 31. The tutor of a pupil having authorised a tenant to have a buUding lease prepared of the ground he aheady occupied on an agri- cultural lease, which some years afterwards the tenant did, the pupU (then minor) marking the draft as approved, and the former tutor signing the extended deeds, but no apparent change of possession having ensued ; held that the building lease was ineffectual. — Pentland V. Murray, 5 W. 4r S. 28 (1831) ; Aff. 7 8. 502. See Minor, 2. o2 212 LANDLORD AND TENANT. [Assignationof Lease. 32. Letters establishing a tenancy, if in existence, must be produced to prove it in an action, not as against the landlord, but as against an adverse possessor of part of the ground, and must be stamped as a lease. Opinion, that even if .stamped they would be useless as against the actual possessor, as the sole remedy would lie against the landlord. — Hutchinson v. Ferrier, 1 M'Q.196 ; 1 Stu. 677 (1852) ; Aff. 13 I). 837. See Principal and Agent, 14 — Trust, 8 — ^Written Document. IV. Assignation of Lease. 33. The heir of a lessee can reduce an assignation of the lease with- out service. — Scott v. Cochrane, 6 P. 719 (1759) ; Aff. 34. A landlord is not entitled, on a lease, containing a power to assign to assignees to be approved of by the landlord, passing to the trustee ia the tenant's sequestration, to require the insertion of new conditions before recognising the assignation. — Irvine v. Valentine, 3 P. 287 (1793) ; Aff. 35. After assignation of a lease, the assignor stUl remains bound to the landlord as a security for the rent. (Per Lord Thurlow.) — Kerr V. Redhead, 3 P. 309 (1794). 36. A decree of removing against a tenant is effectual against a sub- tenant holding a sub-lease of part of the subjects, sub-letting being ■authorised by the principal lease, but with the declaration that the principal tenant should remain liable for the rent of the whole. — Grant v. Farl of Morton, 3 P. 145 (1789) ; Aff. 37. A lease to a tenant and his heirs, secluding assignees, does not warrant the tenant in assigning the lease, mortis causa, to his second son, but on the landlord accepting the assignee the heir cannot object. — Gh-eive v. Gunninghame, 4 P. 571 (1804); and 6 P. 16 (1814); Rem. M. 15298, and Apjp. Tack, No. 9. 38. Under a lease to the tenant and his heirs, but secluding assig- nees, the tenant's heir entering cum beneficio inventarii, and allowing a committee of the deceased tenant's creditors to manage the, farm, does not incur a forfeiture, and at any rate, on such arrangement being brought to an end, the heir cannot be removed. — Earl of Galloway v. M'Hutchon, 5 P. 169 (1807); Aff 39. A leas.e being granted for thirty-eight years and the life of the party in right of it at the end of such period, and the power to assign being Umited to be exercised within twenty-nine years from the entry, failing which the tack was declared to fall to the heir of the person in right to it at the end of such twenty-nine years, it does not descend to such heir after the lapse of the thirty-eight years and the death of the party then in right of it. — Camegy v. Scott, 1 S. Ap. 114 (1822) ; Rev. Comtrudionof Lease.] LANDLORD AND TENANT. 213 40. It is incompeteiLt for a joint-tenant in a lease secluding assignees, to assign his iaterest to his co-tenant. — Taylor v. Fairlie, 2 W. ^ S. 101 (1826) ; Aff. 4 S. 450. 41. Sequestration for rent may proceed at the instance of the land- lord against a sub-tenant, for the amount of the rent due hy the prin- cipal tenant, and may stand for such balance of rent, however trifling, as may be found due by the Sheriff, including road money and other dues as per agreement for lease. — M'DoneU v. Cameron, 2 W. & S. 595 (1827) ; Eev. 3 S. 341. See also 6 S. 65. 42. Question, Whether an assignation of a lease intimated to and accepted by the landlord, but not followed by any apparent change of possession, the assignee having let the subjects to the assignor, is valid against creditors of the assignor. — Cabbell v. BrocJc, 3 W. t^ S. 75 (1828) ; Bern. 2 8. 52. See Assignation, 11. 43. An assignation in security of a long lease published at the market cross and registered in the Sheriff-Court Books, but not inti- mated to the landlord nor followed by charge of possession, is, if not collusive, not reducible by a creditor of the assignor on his bankruptcy. — Malcolms v. Young, 3 W. 4: S. 404 (1829) ; Rev. 2 S. 158, and 3 S. 388. 44. Assignation of a lease to a creditor, who intimates it to the landlord, but grants a sub-lease to the assignor, on which he continues in possession without payment of rent to the assignee, is not valid as against other creditors. — Cabbell v. Brock, 5 W. ^^ S. 476 (1831) ; Aff. 8 S. 647. 45. In a tack granted to the lessee, his heirs, assignees, and sub- tenants, with warrandice to him and his foresaids, the warrandice does not avail to a sub-tenant. — Montgomerie v. Maxwell, 5 W. 4r S. 771 (1831) ; Bev. 5 S. 935. 46. Under a lease secluding assignees and creditors, the landlord allowed the tenant, for two years after his sequestration, to retain pos- session, and accepted rent fi-om him and from a partner whom he assumed. Held that he could not thereafter, in conjunction wi^h the trustee, obtain an interdict against the tenant and his partner con- tinuing in possession. — Borrows r. Colquhon, 1 M'Q. 691 (1854); Rev. 14 D. 791. V. Construction of Lease. r. Entry and Removal. 47. A lease of teinds having been granted to one for life, and to his son for three nineteens, the entry to both being declared to be the same day, the three nineteens run from that day. A tack cannot be intro- 214 LANDLOED AND TENANT. [Cmstruetion of Lease. duced in the middle of a former tack without annulling it. — Burnet V. Mags, of Aberdeen, Cr. & St. 305 (1741) ; Aff. 48. In a lease the dispositive clause bore " for fifty-seven years in the option of the lessee, and upon the '^provisions and conditions after mentioned." One of the subsequent conditions was to renounce on the expiry of nineteen years, or prorogue the same for three years, in the option of the lessor and lessee. Held that the landlord could not remove the tenant at the end of nineteen years agaiast the tenant's will. — Lord Falconer v. Lawson, 2 P. 442 (1778) ; Aff. 49. In a lease for fifty-seven years an obligation on the tenant to renounce before the expiry of the first nineteen years,, or prorogue the same for three years in the option of the lessor and of the lessee, held to import a power to either landlord or tenant to renounce. — Lord Falconer Y.Laivson, 6 P. 799 (1778); Rev. 50. A lease provided that on two terms' rent falling into arrear, it should become ipso facto void, and also provided a penalty of one-fifth in case of failure in payment ; held that when the tenant had regularly tendered his rents except when prevented by proceedings of the superior against his landlord, neither the irritancy nor penalties were incurred. — Hogg V. Hogg, 2 P. 516 (1780) ; Aff 51. A lease for nineteen years from Whitsunday, binding the tenant at the Whitsunday of its expiry to remove, does not allow him to take a waygoing crop in that year, and the custom of the country is inadmis- sible as evidence to alter the rule. — Scott v. Brodie, 4 P. 311~ (1802) ; Alt. M. Tack, Ap. No. 8. 52. Under a lease to expire at Whitsunday, a question as to liability for payment for the crop grown in that year, and reaped by the tenant, decided by evidence of the number of crops for which rent had been paid, and of payment of a price by the tenant for the crop in question. — Thom- souY. Forrester, i W. ^ S. 136 (1830) ; Aff. See Conveyancing, 17. 53. Under a lease for the tenant's life, binding his heirs to remove at the first Whitsunday after its expiration, they are not entitled to sow crops after his death, but before the period of removal. — Marquis of Tweeddalev. Murray, 6 S. Bell, 125 (1847); Rev. 8 D. 411. 54. A lease commencing at Whitsunday for the houses and grass, and at the separation of the crop from the ground as to the arable land, and renewable on six months' notice before the expiration of nineteen years, is to be held as expiring at Whitsunday. — Wight v. Earl of Hopetoun, 4 J/'Q. 729 (1864) ; Aff. 1 Macph. 1037. See 17, 67-72. 2. Sulg'ects and Improvements. 55. A lease having stipulated a rent of L.600, and that four years of Consti-uctmi of Lease.] LANDLOED AND TENANT. 215 tillage should te succeeded by four years of grass, and that not above 300 acres should he under tillage in any one year, and the tenant having averred that he was led to understand that there were 600 acres on the farm, while by measurement it was subsequently ascertained there were only 440, although it was proved that he had spent a week in personal examination of the farm ; held, 1st, That the lease was reducible by the tenant ; 2d, That for the years in which he held it he was liable for rent at the rate of L.450 per annum; Sd, That there were no claims of damages competent to the landlord for miscropping, or to the tenant for loss from entering on the farm. — Riddel v. Orosset, 3 P. 203 (1791) ; Rev. See 63. 56. Quarries being let by a general name, under which the previous lessee had possessed a special quarry, and this being worked by the new lessee without challenge for five years, the landlord is barred from maintaining that it was not let. — Stewart y. Bell, 3 P. 158 (1790) : Aff. 57. A missive of lease bound the tenant to pay 30s. for every acre, the measurement to be afterwards ascertained ; held that he. was not entitled to any deduction for land occupied by roads, steading, or corn- yard, or rendered unarable. A tenant, taking a farm by its boundaries, but which is also described as formerly possessed by certain tenants, is not entitled to the same seat in church which they occupied, but only to a sufficient seat. — Lord Kinnairdy. Mathewson, 4 P. 429 (1802) ; Rev. 58. A lease and relative obligation having given to the lessee and his assignees the right to a feu of aU houses he or they might erect during the lease ; held that this entitled him to grant feu-charters for building over the whole of the premises. — Balderstone v. Hamilton, 5 P. 234 (1808) ; Aff. 59. A stipulation in a lease that the tenant should keep in repair all the houses set, and be at Uberty to erect additional steading, for which he should be entitled at the expiry to have allowance of the value, does not warrant him in pulling down old houses without buUding new ones in substitution, and entitles him to compensation for only so much as is in addition to and not merely substituted for the original buildings ; but such value is to be estimated as at the expiry of the lease, irrespec- tive of the amount actually expended. — Sinclair v. Manson, 1 S. Ap. 1 ; 3 Bligh, 21 (1821) ; Alt. 60. A lease reserving power to feu the whole or any part of the lands excludes all evidence of the practice of the estate as to the amount usually feued, or the terms on which the feu might be granted. — Stewart v. Lead, 1 W. ^ 8. 68 (1825) ; Rev. 61. A lease provided that the houses and biggings on the farm should 216 LANDLORD AND TENANT. [Construction of Lease. be valued at entry and again at expiry, and the tenant paid for any improved value ; held that this does not apply to new houses erected hy the tenant during the lease. — Graham v. Jolly, 5 W. ^ S. 280 (1831) ; Bev. 6 ;8'. 236, and 7 S. 824. 62. A tenant having stipulated in his lease to he provided with a new road, and after his entry a public road having been so altered as to be equally convenient for his use, the landlord is not bound to pro- vide the new road, nor liable in the stipulated deduction of rent till it is m3.de. — Bums Y. Stewart, 5 W. 4- S. 356 (1831) ; Aff. 8 S. 641. See 11, 18 — CoNVEVANCiNG, 21-24. 3. Miseropping. 63. A stipulation that if the tenant cropped otherwise than as agreed on, he should pay 40s. per acre additional rent, is not a penalty which will be modified. But where the extent of acreage to which the stipu- lation applied was doubtful, remit made to ascertain it. — Stratum v. Graham, 3 P. 119 (1789) ; Bern. F. C. IBth Dec. 1811, note. See 55. 64. A lease bindiag the tenant to a certain mode of cropping, or to pay an additional rent for any deviation, does not give him the option, and the landlord is entitled to interdict against a deviation. — Craigie V. Mackenzie, 6 P. 117 (1815); Aff. F. C. I8th June 1811. See Pawnbroker. 65. Penal rent is due for non-observance of the rules of the lease as to the three last years of possession, although the departure was in compliance with the general system of the estate, and the landlord had been cognisant of it and made no objection till the last year. But acceptance by the landlord of the ordinary rent for the first of the three years bars him from pursuing for the penal rent for that year, though it does not affect his right for the two following years. — Miller v. Lord Gwydir, 2 W. ^ S. 52 (1826); Aff. 3 S. 65. 66. A penal rent of L.IO per acre being stipulated for land broken up before it had been three years in grass, and for two white crops taken in succession, it is exigible in respect of land so broken up, and also next year for a second white crop taken from the same. — Lawson V. Ogilvy, 7 W. f S. 397 ; Aff. 10 S. 531. See 12, 72. 4. Waygoing Crop and Straw. 67. A tenant being bound by lease to remove at any Whitsunday on receiving a year's notice, and on being allowed one year's rent for de- fraying the expense of sowing with grass seeds the lands in tillage that year, and in consideration of leaving the whole lands in grass, he is not entitled, after such notice, to break up grass lands for the purpose Const^-uctionofLeaise.'] LANDLORD AND TENANT. 217 of taking a crop before he removes. — Macmichan v. Hufcheson, 4 P. 170 (1801) ; Bev. 2 Bell, Leases, 101, 102. 68. A clause in a lease providing that the tenant " should at no time sell or give away any of the hay or straw of said farm, which shall be always spent on the ground," prevents him from selling the straw or hay of the waygoing crop, although the custom of the country allowed it to be sold. — Duke of Eoxburghe v. Bobertson, 6 P. 614 ; 2 Bligh, 156 (1820) ; Bev. 69. A stipulation ia a lease, " the whole fodder to be used on the ground, and none carried away at any time, hay only excepted," applies to the straw of the waygoing crop, though the ish was at Whitsunday, and there were no means for the tenant consuming the last crop and straw, and the custom of the country was that it should be sold. But the tenant is not liable in damages for faiUng to consume the fodder during the last year, though the landlord offers him facilities for feed- ing cattle. — Gort^ow Y. Bobertson, 2 W. # & 115 (1826); Bev. 3 S. 656. Gordon v. Anderson, 3 W. ^ S. 1 ; 7 W. ^^ 8. 545 (1828 and 1834) ; Aff. 4 & 13, and 11 S. 647. 70. Where a lease makes no stipulation respecting the manure, the tenant is entitled to the value, from the landlord, of that made in the last year subsequent to the period at which, by the custom of the country, it should be laid on the land for a waygoing- crop. Where the lease provides that all the straw shall be consumed on the farm, the landlord is entitled, without payment, to any left unconsumed, but when the lease terminates at Whitsunday as regards houses and grass, and at the severance of the crop as regards arable land, the tenant is entitled to retain after Whitsunday as much straw as is requisite for the foddering of his cattle up to the severance of the crops. — Allen v. Berry, 3 W. ^ S. 417; 4 Bligh, N.S. 520 (1829) ; Alt. 5 S. 212. 71. A tenant being bound not to remove the hay and straw, except that of the last crop, and renouncing the lease before its expiration, is entitled to remove the fodder of the crop preceding his removal Ob- servations on the' difference between "crop" and "year." — Wemyss v. Drysdale, 6 S. Bell, 455 (1849); Aff. 10 D. 467. 72. Under a lease providing only that not more than one-half should be in any year in white crop, and to farm according to good husbandry, and " to leave at the end of the lease the turnip or fallow breaks once ploughed for the incoming tenant," the entry being at Whitsunday, the tenant is bound to leave one-sixth of the farm once ploughed to the incoming tenant, but is entitled to take a black crop from the remaining part of the half which is not in white crop, though altering the rotation to obtain it. —Hunter v. Miller, iM'Q. 560 (1863) ; Aff. 24 D. 1011. See 51, 52. 218 LAW AGENT. [CJuiracter and Powers. LAW, ADMENISTEATION OF. 1. Courts wMch. administer toth law and equity are bound, ia a peculiar degree, to distinguish, whether they give remedy under the one or the other branch, and in the latter to proceed by rules as clear, per- manent, and precise as if they proceeded upon an Act of Parliament. — Kerr v. Bedhead, 3 P. 309 (1794). 2. Observations on a manuscript report of a case produced for the first time at the last hearing of a cause ; and on its authority, if in the handwriting of the Judge's clerk. — Stewart v. Fullarton, and Bruce v. Bruce, 4 IT. ^ /S. 209, 220, 246 (1830). 3. Observations by Lord Cranworth on the advantage of conciseness in law reporting, and of strictness in pleading. — Dudgeon v. Thomson, 1 M'Q. 714 (1854). 4. Observed by Lord Campbell that the costs in the case, L.277 on one side, were three times as much as they would have been either at common law or in equity in England. — British Linen Co. v. Cale- donian Ins. Co., 4 M'Q. 116 (1861). See Wrongous Imprisonment, 2. LAW AGENT. I. Chabactbr aud Powers, . p. 218 | II. LiABrLrrr of, p. 220 I. Character and Powers. 1. A judicial sale being made, and the law agent who conducted it being the purchaser, he was held not entitled to deductions on account of alleged deficiency in the rental, or in the title, of any part of the subjects, nor to his costs in an action for relieving the estate from an alleged burden, nor to interest on the price beyond the rental during the time he was kept out of possession by the dependence of such action. — Menzies y. Menzies, Bobert. 139 (1715); Aff. 4 Br. Sup. 899. 2. A law agent having in his custody a decree in a furthcoming against his client, in which it was stated that a bond formerly granted by the client had been reduced by decree of certification, brought a new action of reduction of the bond, obtained decree, and afterwards brought an action for his expenses against his client. Held that he could not recover those incurred in the latter action, as it was un- necessary. — Stewart v. M'Duff, 4 P. 85 (1799) ; Aff. 3. A compromise of a doubtful claim, effected with equal knowledge of the facts on both sides, and without fraud, is binding, although one Character and Powers.] LAW AGENT. 219 of the parties is brotlier and legal adviser of the other. — Hotchhis v. Dickson, 2 Bligh, 303 (1820) ; Aff. 4. A law agent, who was also in the position of trustee for his client, having recovered a sum for him, and asked him to name what he would allow for his trouble, without rendering any account, an allowance of a grossly excessive sum was reduced after the death of hoth parties. — Taylor v. Long, 2 S. Ap. 233 (1824) ; Aff. 1 S'. 58. 5. An agreement that a law agent should retain ten per cent, of the sums received in an action held to he not proved. — Taylor v. Eichkrds, 2 S. Ap. 251 (1824) ; Aff. 6. A law agent having obtaiaed a decree for his client, and afterwards discovered facts which proved his client to have no right, hut not disclosed them, and taken payment of the sum decerned for, and paid it over to his cHent's order, is not bound to repay the amoimt on the truth becoming known, the decree itseK having been found irreducible. Question, How far in such a case the agent was bound to disclose the truth on learning it?— Taylor v. Keith, 2 S. Ap. 252 (1824) ; Aff. 1 S. 55. 7. In sustaining a petition and complaiat against a law agent, the Court ought to specify the charges which they hold proved. — Pearson V. Jack, 1 W. & S. 577 (1824) ; Alt. 2 S. 651. 8. A mandate to a law agent signed by a mark (not admitted by the marksman), and by several other persons, coupled with the admission that the marksman had once attended the agent in the matter, is sufficient to warrant the law agent's account. — M'Lean v. Murdoch, 2 W. 4- S. 568 (1827) ; Aff. 3 S. 282. 9. An agreement of partnership or division of profits of business in the Supreme Court between a country agent and an agent in the Supreme Court, is invahd on two grounds, — 1st, That it is between parties only one of whom is entitled so to practice ; 2d, That it was intended to be kept secret. — O-ilflllan v. Henderson, 6 TF. ^ /S. 489 ; 2 CI. ^ Fin. 1 (1833) ; Aff. 10 8. 523. See Writers to Signet, 1. 10. It is not improper, but it is not in general a creditable course, that a law agent on his account being objected to, should add to it charges to which he is legally entitled, but which had not at first been inserted. But if the accounts are objected to merely because they are obscure, it is improper to remodel them except by way of classifying and simplifying them. (Per Lord Brougham.) — M'Aulay v. Adam, 1 S. ^ M'L. 665 ; 3 CI. ^ Fin. 385 (1835). 11. A law agent having had his account prepared by another party, who included in it charges fabricated by himself, and the client having first obtained an order to have it taxed, and subsequently a remit to the auditor to inquire into and report as to these charges, which the 220 LAW AGENT. - [Uability of. agent withdrew as soon as they came to his knowledge, and the auditor having thereon taxed them off without making a special report. Held, \st, That the agent was free from hlame, and in respect of the accuse^ tions made against his character, entitled to the costs of taxation suh- sequent to the withdrawal of the objectionable charges. 2d, That the auditor was not called on, in these circumstances, to make any report besides the taxation. 3ii, That an objection that he had failed so to report must be made in writing. — M'Aulay v. Adam, \ S. ^ M'L. 665 j 3 CT. ^ Fin. 385 (1835) ; Aff. 12. A law agent who prepared a feu-charter, having purchased the feu from the original disponee, is not barred from maintaining that certain conditions in the charter do not form real burdens, there not being distinct evidence that it was intended by the superior that they should be so constituted, and there being no fraud. — Tailors of Aber- deen V. Goutts, 2S. ^ M'L. 609 (1837) ; Aff. 13 S. 226. 13. A law agent holding the title-deeds of several estates subject to his lien, retains, on the sale of one estate, and parting with the titles over it, his lien for the full amount, or balance undischarged, of his bill, over the other estates, though such balance is not proportionate to the value. His charge for adjudging on his debt is included in the lien as against his client, but not as against a prior heritable burden on the estate, and the approval of his biU. by the client does not bar an heritable creditor from requiring it to be taxed. A law agent acting for both lender and borrower cannot set up his lien against the former, unless he communicated its existence before the transaction. — Gray v. Graham, 2 M'Q. 435 (1855) ; Alt 13 D. 963. See EanMng and Sale, 10. 14. A law agent acting for two parties, and obtaining right by as- signation to a security granted by one to the other, and prepared by himself, is bound by the terms of an agreement of which he had been cognisant as to the appUcation of the funds realised. — Gemmel v. M'Alister, 4 M'a 449 (1863) ; Aff. 24 D. 956. See Action, 24 — Bankruptcy, 28 — Debt, 11 — ^Entail, 113, 162 — FOEEIGN, 25. II. Liability op. 15. A law agent held liable, twenty-six years afterwards, for failure to intimate an assignation, the action being brought as soon as the representatives of the client learned the facts, although they had pre- viously given the agent a general discharge. — MacDonald v. Mae- Donald, 1 Bligh, 315 (1819) ; Aff. 16. A heritable bond in security having been drawn with only an obligation for an a me holding, and an indefinite precept and sasine having been taken but not confirmed, by which the bond lost its pre- Liability o/.] LAW AGENT. 221 ference, the law agent who drew the deed, though employed hy the borrower, and not the lender, is liable to the lender for the loss. — Lang v. Struthers, 2 W. 4r S. 563 (1827); Aff. 4 S. 418. i^ee Security, 7. 17. A law agent is not liable for error in. a difficult and undecided point, if he conforms to the regular practice, but he is if the point arises through his unnecessary deviation from custom. — Stevenson v. Roioand, i W. ^ 8. 177 ; 2 Dow 8r Clark, 104 (1830) ; Aff. 5 S. 903. 18. A law agent who had acted for both borrower and lender of a loan, and who had been told by the lender to take care that aU. was right, having taken only a heritable bond without any personal obhga- tion from the borrower, is liable for the loss accruing in consequence of such neglect of usual form. — Clark v. Sim, 6 W. ^ S. 452 (1833) ; Aff. 10 S. 85. 19. A law agent is not Uable for damages arising from his following the course of practice generally believed at the time to be correct, but subsequently decided to be incorrect ; but is Hable for repayment of the expense of preparing superfluous deeds. — Graham v. Alison, & W. ^ S. 518 (1833) ; Aff. 9 ;Sf. 130. 20. A law agent is liable in relief of damages incurred by his cHent in consequence of proceedings which were found illegal, having been based, by the agent's negligence, on a wrong section of the statute founded go..— Hart v. Frame, M'L. ^ B. 595; 6 CI. ^ Fin. 193 (1839) ; Aff. 14 S. 914, 922. 21. A law agent, acting both for the borrower and lender on heritable security, is liable to the latter for failure to complete the security by intimation, and for concealment of the fact that there were prior burdens, though he was in the bond fide belief at the time that the security was ample, but costs of appeal not given against him. —Donaldson v. Hal- dane, 1 Robin. 226 ; 1 CI. Sf Fin. 702 (1840) ; Aff. 14 S. 10. 22. An action against a law agent for neglect lies only where he has shown a want of reasonable s kill , or been guUty of gross negligence or breach of duty, and the summons must expressly state these charges, or facts from which they can be directly and inevitably inferred. The arrest of an alleged debtor of the agent's client on a border warrant, which was held bad as not applying to one domiciled or holding pro- perty in Scotland, whereupon the arrestee recovered damages and costs from his opponent, are not facts from which such inevitable inference of negligence in the agent can be drawn as to dispense with express aUegation. — Purves v. Latidell, 4 S. Bell, 46 ; 12 CI. 4 Fin. 91 (1845) ; Bev. 4 X>. 1543. 23. A law agent, acting in a transaction in which A, B., and C. are interested, and preparing a deed by which A, is to be relieved by B. from liability to C, is not liable to A. for loss by imperfection of the 222 LEGITIM. deed, unless employed by him or by his authority, and not merely by B. for A.'s benefit. — Robertson v. Fleming, i M'Q. 167 (1861) ; Rev. 21 D. 982. See Contract, 6. iSee Factob, 2 — Personal Capacity, 9, 15 — Reduction, 18 — Superior AND Vassal, 4— Trust, 16, 21, 33, 38, LAW OF SCOTLAND. 1. Observations by Lord Eldon, approving of the principle that the law of Scotland is not to be assimilated to the law of England, but that, if not hitherto determined, English rules may be resorted to. — Ogilvie V. Dundas, 2 W. & S. 214 (1826). Earl of Stair v. Stair's Trs., 2 W. & S. 622. 2. The civil law is not of direct authority in the law of Scotland, and is of little weight in questions of mercantile law. (Per Lord Brougham. ) — Thomson v. Campbell's Trs., 5 "W. & 8. 25 (1831). 3. Where there is no peculiar principle of the law of Scotland appli- cable to a question, and especially when the question is raised by a statute common to both England and Scotland, there is great incon- venience and reproach to the law if diflferent rules are laid down. (Per Lord Cottenham.) — Duncan v. Findlater, M'L. ^ R. 929; 6 CI. ^ Fin. 894 (1839). See Statute. 4. When the English law settled in the Courts (though never afiSrmed on appeal) is founded on principles of universal application, not on any peculiarities of EngUsh jurisprudence, imless there has been in Scotland a settled course of decision to the contrary, a different rule from the English will not be sanctioned. (Per Lords Cranworth and Ch&\ms£oT:d.) — Bartonhill Coal Co. v. M'Guire, 3 M'Q. 285. See Salmon EisHiNa, 4 — Statute, 3, 13, 14, 20 — Trust, 33. LEGITIM. 1. An obligation in a marriage-contract to pay certain sums to younger children, not declared to be in full of legitim, does not ex- clude their claim for legitim ; but the legitim, if less than the provisions, will be imputed to it pro tanto, and the remainder only due out of the rest of the personal estate. — Nisbet v. Nisbet, Robert. 594 (1727) ; Aff. 2. On a wife's renunciation in a marriage-contract of het jus relictce, the division of the personal estate is bipartite, into dead's part and legitim. — MsJe^ V. Nisbet, Robert. 594 (1727); Aff. M. 8181. 3. Moveable bonds are subject to the claims of legitim. — Nisbet v. Nisbet, Eobert. 594 (1727); Aff. M. 8181. LEGITIM. 223 4. Eenunciation of legitim is not to be implied from acceptance of a provision not expressly declared to lie in lieu of it. On some of tli6 children renouncing, tlie remaining children take as if they were the only children aUve. Question as to division of goods in communion, the mother having died before the renunciation of some of the children. Hog V. Lashley, 3 P. 247 (1792) ; Aff. M. 8193. 5. The children surviving the father are not excluded from legitim by a deathbed deed giving them a larger provision, which their tutors accepted, but which they did not survive to ratify when of age. — Burden v. Smith, Or. ^ St. 215 (1738) ; Bev. in part, Elchies v. Mutual Contract, No. 7. 6. Legitim is not discharged by a gift to a son in business, for which he granted a receipt " as the portion bestowed on me ;" but a discharge by the father of a loan to the son, declaxing it to be in full of all he could ask by way of legitim, being found in the father's repositories, and after his death handed to the son, and accepted by his assignees in bankruptcy, the claim of legitim is excluded. — Hog v. Thwaytes, 4 P. 364 (1802) ; Alt. 7. Legitim cannot be disappointed by a transfer of personal property to a trustee to be invested in land after the father's death. A transfer of property, though ex facie absolute, wiU be held to be in trust only if the interest is afterwards drawn by the transferrer, and it will not be held, without express evidence, to have been made for the purpose of reserv- ing a liferent, while the fee is given to the transferee. — Lashley v. Hog, 4 P. 581 (1804) ; Pev. M. Legitim, Ap. 2. 8. Sums advanced, or an annuity, to the child before the father's death, must be imputed in part of legitim, but not in part of a share of the goods in communion. — Lashley v. Hog, 4 P. 581 (1804) ; Aff. 9. The claim for legitim is not defeated by a voluntary alienation by the father, several years before his death, to his son, who was his partner in business, of all his property, including the business, and reserving only an annuity. — Millie v. Millie, 5 P. 160 (1807) ; Aff. M. 8215. 10. A claim for legitim is not discharged by failure to make it for twenty-one years, on the part of a sister living in family with her only brother, but the sum wiU be subject to deduction for her board. Interest, however, allowed on it where an annuity had been left to the claimant, of which she was never informed, and which was never paid. — Kirkpatrick v. Sime, 5 P. 525 (1811); Aff. F.C. 1st March 1804. 11. A settlement in the English form, on the marriage between an Englishman and the daughter of a Scotsman, ia which the latter gives a sum to his daughter " as her portion or fortune," does not discharge 224 LEGITIMACY. ter claim for legitim. The proposals for the settlement, also in the English form, provided that the settlement should contain all usual and necessary clauses. Held that this did not imply that a discharge of legitim should he inserted. (In the Court of Chancery.) — Marquis of Breadalbane v. Marquis of Chandos, 2 S. ^ M'L. 377 and 402 ; 4 01. # Fin. 43 (1836); Aff. 14 S. 309. 12. Acceptance hy a child, after the father's death, of a provision granted in his settlement declared to he in satisfaction of legitim, ope- rates in favour of the general disponee, and not to increase the legitim of the other children. (Per Lord Camphell)— The rule is the same in the city of London. — Fisher v. Dixon, 2 S. Bell, 63 (1843) ; Aff. 2 D. 1121. 13. The curator bonis of a lunatic held entitled where no injury was done by it to other interests, to decree of declarator that he was not boimd to elect between legitim and the gifts of a wiH tiU his recovery, though taking an income under the will in the meantime. — TurnhuU V. Cowan, 6 S. Bell, 222 (1848) ; Aff. 7 D. 872. 8ee Heirs — Heritable and Moveable, 10 — Provisions to Children SUOCBSSION, 3. LEGITIMACY. 1. In a reduction of a service, on the ground that the party was a supposititious child, a proof allowed to both parties of all facts and circumstances, and on the evidence the reasons of reduction repelled. — Douglas V. Duke of Hamilton (Douglas cause), 2 P. 143 (1769) ; Eev. 2. The presumption of legitimacy is not overcome by hearsay reports of bastardy after the lapse of 100 years, and although the title impeached was a precept of dare granted to the alleged bastard on occasion of pur- chasing the property from him. — M'Callum w. Campbell, 4 P. 32 (1798) ; Aff. M. 16135. 3. A description in a sasine as filius carnalis is not conclusive proof of bastardy, and a marriage between the divorced adulteress and para- mour prior to the Act 1600, c. 20, does not bastardise the issue. — Duke of Eoxburgh v. Kerr, 1 S. Ap. 157 ; 6 P. 820 (1822) ; Aff. 4. In a competition of services, one party having been let into pos- session by the trustees, and having been always recognised as the legitimate heir, and having held another estate for fifty years on the same title, sequestration of the estate will not be granted on allegation of his illegitimacy, before proof. — Campbell v. Campbell, 4 M'Q. 711 (1864) ; Aff. 1 Macph. 991. See Heirs, 54. See Heirs, 60 — Husband and "Wife, 10, 21 — Legitimation, 4. LEaiTIMATION. 225 LEGITIMATION. 1. An illegitimate cMld being born in America, the reputed father beiag domiciled there, but a Scotsman by birth, is not, by the subse- quent marriage of his parents in America, where the law of subsequent legitimation does not prevail, rendered capable- of inheriting land in Scotland. (Per Lord Eldon) — This case will not be a precedent for any other which is not precisely the same in all its circumstances. — Sheddenw. Patrick, 5 P. 194 (1808); Aif. M. Foreign, Ap. No. 6. See also 1 Macqueen, 632. 2. A peer both of Scotland and of Great Britain, born and chiefly residing in England, having by a domiciled Englishwoman an illegiti- mate son, cannot legitimatise bim by subsequent marriage in Eng- land, even as regards the Scottish peerage. (Per Lord Eedesdale) — There is since the Union no distinct peerage of England and Scotland ; all are peers of the realm (though aU are not Lords of Parliament), and the succession to aU must be regulated by English law. (Per Lord Eldon) — The succession to Scottish peers, i.e., peers domiciled in Scot- land, must be regulated by Scottish law. — Strathmore Peerage, 6 P. 646 (1821). 3. The principle does not apply where the father, though a Scotsman by birth, and proprietor of estates in Scotland, was domiciled in Eng- land ; the son was bom there, and the parents subsequently married during a short visit to Scotland, sine animo remanendi. Observed that the locus of the marriage is immaterial. Observed also that the general principle appeared to be independent of domicile, and would allow legitimation only in the case where the child is born in a country where the rule holds.— Eose v. Eoss, 4 W. & S. 289 ; 6 Bhgh, N. S. 468 (1830) ; Eev. 5 S. 605. But see 5. 4. The maxim " Pater est, ^c," does not apply in the case of a child bom before marriage, and it is legitimated only on proof that the hus- band was, in fact, its father. Declarations 6f the alleged parents are of little weight in such questions. The period of 301 days is within the limits which the law allows as of possible gestation. — Lrvnes v. Innes, 2 8.^ M'L. 417 (1837) ; Aff. 13 S. 1050. 5. Legitimation takes place (irrespective of the place of the marriage or of the birth) wherever the domicile of the father was and con- tinued throughout to be Scottish, the domicile of the mother being immaterial. — Countess of Dalhousie v. M'Douall, 1 Eobin. 475 ; 7 01. & Fin. 817 (1840) ; Aff. 16 S. 6. Munro v. Munro, 1 Eobin. 492 ; 7 01. & Fin. 842 (1840) ; Aff. 16 S. 18. See Domicile, 9. 6. A child legitimated jaer suisequens matrimonium cannot inherit land in England, although for other purposes the comity of nations 226 LIBEL. may cause its legitimacy to he recognised. — Doe ^ Birtwhistle v. Var- dill {English), 1 BoUn. 627, Ap.; 2 CI. ^ Fin. 571, and 7 CT. ^ Fin. 895. 7. A child bom abroad is an aUen, unless his father at the time of his birth is a British subject ; therefore, if illegitrmate at birth, his legitimation per subseguens matrimonium does not draw back to his birth, so as to render him a British subject. — Shedden v. Patrick, 1 M'Q. 535 (1853) ; Afif. 14 D. 721. LIBEL. 1. In an action for libel against an alleged proprietor of a newspaper, who denied his connection with it, the actual proprietor is bound to produce his books to the Commissioner, that extracts may be taken of such entries as may be material. — Paul -v. Gadell, 4 P. 89 (1799) ; Aff. M. 12375. 2. An action for libel on account of a letter published in a newspaper may be directed against both the printer and one designated as pro- prietor, or editor, or conductor, manager, or superintendent, on his in- terest in either character being proved. — Morthland y. Cadell, 4 P. 385 (1802) ; Aff. 3. In an action for defamation only the specific allegations of de- famation can be considered. Evidence that a landlord had expressed suspicions of the probity of his factor in conversation with private friends, such suspicions being proved to have been also entertained by the general public, will not support an action. — Donaldson v. Lord Perth, 4 P. 112 (1800) ; Aff. 4. In an action for damages against several persons as jointly and severally liable, the summons must state and the evidence prove that the words complained of were the words of all the defenders. Obser- vations without decision upon the subjects of malice and want of pro- bable cause, issues, and public documents above stated. — Young y. Leven, 1 S. Ap. 179 (1822) ; Bev. 5. A public officer cannot be compelled to produce the information furnished to him, whether by a subordinate officer or an independent party, in reference to the character of one of whose conduct he is officially entitled to take cognisance. — Earl v. Vass, 1 S. Ap. 229 (1822) ; Bev. F. G. 20th Feb. 1818. 6. Libellous expressions in a petition and complaint are actionable on allegation of malice, although in the answers to the petition the pursuer had also been guilty of intemperance of language. — Taylor v. Swinton, 2 8. Ap. 245 (1824) ; Aff. 1 S. 59. LIFEEENTER AND FIAE. 227 7. A master being sued by a servant for discliarging him, pleaded that the Servant cohabited with a married woman, who kept a house of ill fame, and assisted her in illegal acts ; held that these statements were relevant, and therefore not ground for an action of hbel on the part of the woman, unless malice were proved. — Eioing v. Gullen, 6 W. 4- S. 566 (1833) ; Rev. 10 S. 497. 8. The publication of the names of parties appearing in the registers of protested bills and of homings, &c., is not libellous. Question, "Whether the Court can interdict any publication on the ground of its being Wdq\1ovb'\ — Fleming v. Newton, 6 8. Bell, 175 -,1 H.L. Ca. 363 (1848) ; Rev. 8 D. 677. 9. In a defence of Veritas conviaii against an action of slander, the specific acts on which it is founded must be set forth, and the ndmes of the witnesses given, and an allegation of common report is irrelevant. — Do%glasY. Chalmers, 3 P. 26 (1785) ; Aff. M. 13939. 10. A letter detailing alleged misconduct of deputy-lieutenants in causing troops to flre on a crowd without provocation, is a libel which may be sued for by one of the deputy-lieutenants. Veritas convicii allowed to be ^roY&di'i — MortJiland v. Gadell, 4 P. 385 (1802) ; Aff. See Co"[jRT OF Session, 11 — Husband and Wife, 27, 28 — Justices of Peace, 4. Lien. — See Bank, 2 — Law Agent, 13 — Mastee and Servant, 6- Prinoipal and Agent, 4 — Sale, 19. LIPEEENTEE AND PIAE. 1. A fiar has not right to cut growing timber while a liferent " of the lands, with parks, woods, &c.," is in existence. — Duchess-Dowager V. Duke of Hamilton, Robert. 443 (1723) ; Rev. 2. A deed of tailzie having first given a liferent, and burdened it with " the duty of alimenting and educating the fiar and the other heirs of tailzie," this constitutes a personal obligation only on the Uferenter. — Lord Lovat». Mackenzie, Eobert. 449 (1723) ; Eev. 3. An obligation in a marriage-contract to infeft the wife in certain lands, together with the patronages, and superiorities, and feu-duties belonging thereto, carries to the liferentrix a right to present on a vacancy occurring during the liferent in the benefices, and also a right to enter vassals ; and the defence of bond fide eonsumpti is not available to the heir-at-law who had excluded the liferentrix from these rights. She must, however, keep down the interest on heritable bonds. — Lady Forbes v. Lord Forbes, 2 P. 36 and 84 (1760) ; Eev. p2 228 LUNATIC. 4. The proprietor of an estate -who has granted a liferent locality out of it in favour of his wife's provision, in case of her survivance, and in which she is infeft, may grant agricultural leases to endure after his death. —Stewarts. Countess of Moray, 2 P. 317 (1773) ; Aff. M. 4392. 5. Bonds burdened with a liferent to the granter's wife, and assigned by him to her, with declaration that they were only to be liferented by her, and that the fee should go to her children, cannot be validly dis- charged by the liferentrix. — CutKb&rtY. Mackenzie, 2 P. 37 7 (1775); Aff. 6. Bank stock being bequeathed to trustees to hold for one in life- rent and another in fee, a boniis declared subsequently to the testator's death is not dividend to be taken by the hferenter, but part of the stock of which he is entitled only to the interest. — Irving v. Houston, 4 P. 521 (1803); Pev. M. 8282. 7. The fee of heritable and moveable property being left to A., and the liferent to B. , under burden of payment of all the testator's debts, and with power to B. to sell the moveable estate as far as necessary for that purpose ; held that B. is bound to apply his whole liferent interest to the payment of debts, though exceeding the amount of the moveable fund, but reserving his relief from the fiai, shotdd the amount exceed the liferent interest in the heritage. — Waddell v. Waddell, 6 P. 374 ; 6 Dow, 279 (1818) ; Rev. 8. An heritable bond having been assigned to one in liferent and another in fee, and the liferenter having, on receiving payment from the assignor, granted an obligation, improbative and unstamped, to sub- scribe a formal and valid discharge as soon as it could be prepared ; held that he was entitled, on repaying the money, to absolvitor in an action calling on him to make up a formal title, in the person of the fiar, for the purpose of implementing the obligation.— -Jft'Zfer v. Ander- son, 7 W. 4 S.12 (1833); Aff. 9 S. 542. 9. The fiar of a superiority, uninfeft, having conveyed the liferent of the superiority to another, with power to enter vassals, the liferenter can validly exercise the power, it not being of the nature of a mandate, but an interest vested iu the liferenter. — Craig v. Cochrane, 2 Eobin. 446 (1841) ; Aff. 16 S. 1332. See Aliment, 3. LUNATIC. It is competent to appoint a curator bonis to a party of weak mind on medical certificate only, without cognition, and a petition for recal of the appointment, and for cognition at the instance of the party him- seK and interdictors, under whose care he had previously placed MASTER AND SERVANT. 229 himself, may he remitted to tlie Sheriff of the county to investigate and report, and, on the petition heing refused, the interdictors may be found liable in costs to the curator. — Bryce v. Graham, 2 W. & S. 481 ; 4 BHgh, N. S. 492 (1826), and 3 W. & S. 323 (1828) ; Eem. and Aff. 6 S. 425. See Action, 3 — Couet of Session, 7 — Legium, 13 — Pbesonal Capacity — Poor, 1 — Succession, 2. MASTEE AND SEEVANT. 1. An apprentice bound to serve a certain " concern, or the subsist- ing partners of the said concern who may carry on their business," remains bound though, on the retirement of one of the partners, the name of the firm is entirely changed. — Young v. Broion, 3 P. 42 (1785) ; Aff. 2. An action of damages for dismissal does not lie against the son of the employer, by whom the dismissal was effected, but who does not represent the employer. — Macdonald y. Burt, 3 P. 512 (1796) ; Eev. 3. A master may dismiss a gardener for absence without leave for four days, though one of them was the fast day in the parish, and he had in part been occtipied in the master's business. — Oraufurd v. Beid, 1 S. Ap. 124 (1822) ; Bev. 4. A man having been Trilled by a tree which was being felled falling across the high road, the operation having been apparent to aU passers by, but no precautions having been taken, and the owner of the tree, and master of the servant who cut it down, having been absent and given no orders for the operation, he is not Uable in damages for the a'ccident. — Ldnwood v. Haihorn, 1 S. Ap. 20; 3 Bligh, 193 (1821) ; Aff. F. a Uth May 1817. 5. A master is not liable for breach of an interdict against him com- mitted by his servant, but in his absence and contrary to his general orders.— Dwfe o/Eoxburghv. Waldie, IW. ^ S.l (1825) ; Aff. 1 S. 367. 6. A man employed to cut wood has no lien for wages upon the wood. — Galium Y.Ferrier, I W. ^ S. 399 (1825) ; Aff. 2 S. 102. 7. A coal-pit owner is liable for damages for the death of one of his workmen, if caused by the roof of the pit being left in a dangerous state by the negligence of the owner or his manager. — Paterson v. Wallace, 1 M'Q. 748 (1854) ; Bev. 16 D. 243. 8. The owner of a coal-mine is liable for injury done to any of the workmen by defects in the shaft when returning from work, whether justified in returning at that moment or not. — Brydon v. Stetoart, 2 M'Q. 30 (1855); Bev. 230 MEDITATIO FUUjE. 9. A master is not liaTale for injury done to Ms servant by a fellow- servant engaged in tlie same occupation, assuming that due care has been used in the selection of the servant, and that the servant injured has been properly set to work, and that proper machinery and tools have been supplied. — BartonsMll Coal Co. v. Beid, 3 M'Q. 266 (1858); Rev. 17 D. 1017. BartonsMll Coal Co. v. M'Gnire, 3 M'a 300 (1858) ; Rev. 10. A master is liable in damages for an accident to his servant arising from the patent insufficiency of machinery, or of the mode of its being secured, and, in the event of the servant being killed, his mother, whom he was supporting, may sue, and such action transmits to her representatives. — Weemsv. Mathieson, 4Jif'Q.215(1861); Aff. See Statute, 30. MEDITATIO FUG^. 1. Both the creditor applying for and the magistrate granting warrant are liable in damages when the procedure is informal in respect of the warrant not proceeding upon any oath of verity or evidence of debt, nor on petition setting forth that the debtor was about to leave the kingdom, while the creditor's name was not inserted in the warrant, and it ordained apprehension, not for examination, but for imprison- ment. — Laing v. Watson, 3 P. 219 (1791) ; Aff. M. 8555. 2. Pailuie by a debtor to lodge balances over-due, with a statement that he was going to the east country, and a general impression in the pubUo mind that he was about to go abroad, held sufficient to exonerate the creditor from damages for applying for a meditatione fugcB warrant. — Donaldson v. Lord Perth, 4 P. 112 (1800) ; Aff. 3. A med. fug. warrant, signed by a magistrate, is valid, though the deposition on which it proceeded, and the examination of the party, were not taken before him, but on com mission granted by him to one of the town-clerks. — Carrick «. Martin, 1 S. Ap. 257 (1822); Aff. F. C. 14th Nov. 1818. 4. A married woman, whose husband is a convicted felon, may be arrested on a med. fug. warrant, on demand for restitution of stolen property. — Crowder v. Watson, 6 W. & S. 271 (1832); Aff. 10 S. 29. 5. There is no privilege against arrest for debt available to a party who has been brought from England to Scotland on a criminal charge, and acquitted on trial. — Crowder «. Watson, 6 W. & S. 271 (1832) ; Aff. 10 S. 29. See Law Agent, 22. Election o/] MEMBER OF PAKLIAMENT. 231 MEMBEE OF PAELIAMENT. 1. Privilege of ParHament is a good defence against a reduction of the election of provost of a burgh, on the ground of the imprisonment by an M.P. of some of the electors to prevent their voting, so far as regards the M.P. himself, but it does not protect those who voted with him in the election, though not accessory in the illegal act. — Mill v. Reid, Robert. 452 (1723) ; Aff. 2. The eldest son of a Scottish peer held ineUgible as a member of Parliament. —Z,orc? Daer v. Stewart, 3 P. 293 ; 8 Br. P. C. 1 (1793) ; Aff. M. 8692. Election of. 3. The Statute 7 Geo. II. c. 16, inflicting a penalty on the Sheriff wilfully making a false return in the election of a member of Parlia- ment, did not apply where, on there being doubt, he returned the election of both candidates ; but a penalty on a clerk wilfully returning to the Sheriff a party not duly elected, held to apply to the clerk re- turning one of such candidates. — Campbell v. Hume, Gr. ^ St. 346 (1743) ; Alt. Elch. Member of Pari. No. 13. 4. Remit to take evidence as to the nature of a right of liferent superiority granted by an heir of entail for the purpose of creating a vote. Observed (per Lord Thurlow), that if an estate is granted by the owner in execution of such a design, to a friend, in confidence of its being reconveyed, he depends solely upon his honour, and has no legal power to compel reconveyance. — Elphinstone v. Campbell, 3 P. 77 (1787); Rem.M. 8764. 5. The fact that the statute appoints a particular oath to be put to a party claiming as feeeholder, does not exclude the Court, on appeal from the decision of the freeholders, from ordering him to reply to interrogatories framed to discover the fictitious nature of the qualifica- tion. — i^orSes V. Macpherson, 3 P. 169 (1790) ; Rev. M. 8769. 6. Held that under the Statute 16 Geo. II. c. 11, the objections to enrolment as a voter must be made within four months. — Elliot v. Pringle, 3 P. 237 (1792) ; Aff. 7. Held that the office of coroner of the county of Stirling included with lands in the valuation of a retour, was of no value, and therefore that the lands alone were of sufficient value. — Davidson v. Fleming, 4 P. 554 (1804) ; Aff. M. 8599. 8. Eemit to take evidence as to an alleged fictitious claim to be enrolled. — Fleming v. Drummond, 5 P. 537 (1811); Rem. 232 MINES AND MINERALS. 9. A party objected to as holding a nominal and fictitious qualiflca^ tion, held entitled to require that iaterrogatories should he administered to hiTTi for the purpose of admitting his answer on oath. — Stewart v. Crawford, 1 Bligh, 163 (1819); iJem. F. G. 1th March 1818. 10. In electing a memher of Parliament for a burgh, question, Whether non-residence disqualified a member of council from voting. — Black V. CampbeU, 5 Dow, 23 (1817) ; Eey. 11. Freeholders. Powers of Court. — Gibson v. Forbes, 1 S. Ap. 27; 3 BKgh, 499; Aff. F. C. (1817). 12. Freeholders. Title of one to reduce the title of another. — Gibson v. Forbes, 1 S. Ap. 30. Arbuthnot v. Gibson, 1 S. Ap. 35 (1821) ; Eem. F. C. 19th May 1820. 13. When a retour of the old extent was the same or nearly so as that of the feu-duties, the presumption was that the jury had stated the former from the latter, and therefore the retour did not establish that the lands were a forty-shilling land of old extent. — Douglas v. Colquhoun, 1 S. Ap. 493 (1823) ; Aff. 1 S. 507. See B0EGH, 36. MIKES AND MINEEALS. 1. A reservation of mines and minerals in a feu, with liberty to the superior to work them, does not include a freestone quarry. Observed that in a lease the reservation would be implied, but unless there was an express power reserved to work, the landlord could not enter for that purpose. — Menzies v. Earl of Breadalbane, 1 S. Ap. 225 (1822) ; Aff. F. C. 10th June 1818. 2. A conveyance "of land to a railway, reserving minerals and right to work them, is subject to the impHed warranty that the working shall not damage the railway, and this is not affected by the Act requiring notice to be given of the commencement of such working, with power of purchase. Observed that the same rule would apply to the convey- ance of land for building, or of the upper story of a house. Security may be required against damage before the working is commenced. — Caledonian By. Co.Y.Sprot, 2 M'Q. 449 (1856); Bev. 16 D. 955. Caledonian By. Co. v. Lord Belhaven, 3 M'Q, 56 (1857) ; Bev. See also Coal — Pbopertt, 14. CapacHy and Privileges.] MINOE. 233 MINOE. I. Capacity and Peivileges, p. 233 I III. Father as Administea- II. TUTOES AND CuEATOES, . 234 I TOE p. 235 I. Capacity and Privileges. 1. The maxim, Minor non tenetur plaoitare, does not apply in case of a reduction of the minor's title on the ground of fraud and forgery by his father. The Court of Session will judge, if necessary, of the fraud by inspection. — Craufurd t). Craufurd, Eobert. 28(1712); Aff. M. 9085. 2. A tack granted by a minor, bearing to be with consent of curators, but not signed by them, and followed by possession for thirty years, and payment of rent to the minor's heir after his death, which was four months after he came of age, is not reducible on the ground of non- concurrence of curators. — Hamilton v. Lady Cardross, Eobert. 37 (1712) ; Eev. M. 8952. See Landlord and Tenant, 31. 3. A discharge by a minor without curators of part of the tocher stipulated in the marriage-contract, the discharge being granted privately before the marriage took place, is reducible on the ground of minority and lesion. — Morison v. Viscount Arbuthnot, Gr. Sf St. T ; 8 Br. P. C. 247 (1728) ; Aff. M. 9487. 4. A bond granted by the tutor for a minor, for payment of aliment of the predecessor in the estate, is reducible on the head of minority and lesion only in so far as it liquidates the sum payable. — Davidson V. Watson, Cr. & St. 288 (1740) ; Eev. M. 11077 ; 5 Br. Sup. 200. 5. A minor is not liable for his father's debts as vitious intromitter, nor bound to restore what may have been disbursed for his main- tenance and education by the trustees left by his father ; but he is liable to repay to his father's creditors whatever he may have received from his trustees after attaining majority, and repayment to this extent may be ordered in an action brought against him as vitious iutro- mitter.— Brenmerz;. CampbeU, 2 S. & M'L. 895 (1837); and 1 S. BeU, 280 (1842); Alt. 1 D. 618. 6. Possession of a bUl of exchange belonging to a minor, but not negotiable by his factor, who was accustomed and empowered to re- ceive the interest on it, is not authority to pay the principal to the factor. — Clyde Trs. v. Duncan, 2 Stu. H. L. 57 (1853) ; Aff. 7. An infant British peer having estates tu both England and Scot- land, and born in Scotland, having been made a ward of Chancery, and subsequently a tutor having been retoured to him in Scotland, and being clandestinely removed to Scotland by one of the guardians ap- pointed by the Court of Chancery ; held that the Court of Session was 234 MINOE. [Tutors and Curators. bound, on the application of the other guardian, to make an immediate order for delivering him up, and not justified in delajring consideration for four months, hy which time the pupil woul(J have become a minor. — Stuart V. Stuart (Marquis of Bute), 4 M'Q. 1 ; 9 H. L. Ca. 440 (1561^ ; Eev. 22 D. 1504. See Debt, 2 — Entail, 8 — Heirs, 4 — Heritable and Moveable, 1 — Patronage, 8 — Pbbsceiption, 2, 19, 23, 24. II. Tutoes and Cueatoes. 8. A tutor nominate having signed a tutorial inventory, which was afterwards judicially produced by a procurator, is held to have accepted the tutory ; but if the appointment was made on deathbed, he cannot have the benefit of being liable only for intromissions under Act 1696, c. 8. But it being afterwards shown that the signing was not before wit- nesses, nor judicially under Act 1681, c. 5, the inventories are null and void, unless supported by acts of administration. A letter consenting to the other tutors lending the pupil's money, and oral proof of direc- tions given about the pupil being put to school, and about repairs of buildings belonging to him, are not acts of administration. — Watson V. Watson, Eobert. 134 (1715) ; Aff. M. 3244. 9. A factor cannot, by any right acquired in his own person during the factory, invert the heir's possession, and therefore cannot adjudge while factor. In accounting he must, under the A. S., 31st July 1690 and 22d Nov. 1711, account according to the rental, whether received or not, but charging the aliments paid in each year against the rents received in that year, and not against the interest on the rents. No factor's fee will be allowed where he sets up an adverse title to the estate. —Maxwell v. Sharp, Eobert. 380 (1721) ; Aff. 10. The curators of a minor may validly convert personal into heritable securities, if he previously empower them or subsequently approve, and his approval may be proved by parole evidence. — Wauchope v. Wauchope, 1 Cr. & St. 200 (1737) ; AS. Elchies v. Minor, No. 6. 11. A former curator of a party now of age, but who was of known weak intellect, and soon after interdicted, is liable as negotiorum gestor for any charge he may continue to take of the late minor's affairs, even though he himseK is present, and apparently consenting to the transac- tion. — Graham «. Ker, 2 P. 13 (1758) ; Aff. M. 3529. 12. A tutor neglecting to include in his inventory certain dues pay- able to the pupil, is Hable for interest upon them from the time they were received, and cannot charge commission. A curator, after expiry of the office, but before discharge, may, where there is no fraud, obtain Father as Administrator.] MINOR. 235 the renewal to himself alone of a lease which was granted jointly to himself and the minor's father. — ParkhiU u. Chalmers, 2 P. 291 (1773) ; Aff. M. 16365. 13. Tutors failing to make up inventories are liable conjtmctly and severally, though appointed hy a will declaring that each should he liahle for his own acts only, and one of them is liable in damages for loss occasioned to the pupil by a decree of removing obtained by him irregularly as factor for the landlord. L.200 costs given against ap- pellant as a punishment.— Duff «. Henderson, 3 P. 283 (1793) ; Aff. M. 16375. 14. Tutors having lent money on an heritable bond, and after ex- piry of their tutory discharged the bond, the discharge is inept, and the debt subsists as a charge on the estate burdened, although they were also, in point of fact, trustees with others, but acted only in their cha- racter of tutors. A purchaser of the estate over which the bond sub- sisted, which is thus revived, is entitled to relief from the tutors to whom the amount was paid. — Eoss v. Lockhart, 3 W. & S. 481 (1829) ; Aff. 5 S. 136. See 6. 15. When the office of tutor-dative is given to more than one person, though not expressed to be joint, and when there is no clause of sur- vivorship, and no quorum or sine quo non constituted, the death of one terminates the office as to all the tutors. Question, Whether, if it had not been so terminated, a cautioner for one of the tutors who had been appointed factor by the other, would have been liberated by the death of one of those who made the appointment ? — Scot v. Stewart, 1 W. ^ S. 211 (1834) J Rev. 10 S 392. See Cautioneb, 13, 14, 15 — Husband and Wipe, 26. III. Father as Administrator. 16. A sum of money being settled by bond on a pupil for the pur- chase of lands to be entailed, and his father being appointed his tutor and curator as regards the sum, with power to call for the money when he should think fit, and employ it on security or the purchase of lands, with a salary for management, the father is not entitled to call up the money until lands are purchased, but it will be ordered to be consigned in Court till a purchase is approved by the Court. — Lord Saltoun v. Fraser, Bolert. 312 (1720); Rev. 17. A father, as administrator, having contracted for the sale of reversionary interests of his minor children, he may bring action to enforce the contract. — Stewart v. Gardners, 2 P. 549 (1780) ; Aff. 18. Trustees are bound to pay to the father, as administrator for a pupil son, a sum due to the son under the trust, even though the father 236 NUISANCE. is in poor circumstances, but if in embarrassed circumstances, they ought to require caution, and are not liable if the cautioners, being reputed sufficient at the time, afterwards faU. — Dumbreck v. Steven- son, 4 M'Q. 86 (1861); Aff. 19 D. 463. See Debt, 9 — Partnership, 66. MULTIPLEPOINDING. 1. A multiplepoinding is a suitable procedure for ascertaining which of two parties has right to deHvery of a deed in a third person's hands. — Maule V. Eamsay, 4 W. AIS. 58 (1830) ; Affi 6 S. 343. 2. Interest on interest is due by the common debtor from the date of citation in a multiplepoinding, unless he consigns. — N^apier v. Gordon, 5 W. & S. 745 (1831) ; Aff. 8 S. 357. 3. The Court in its discretion may reftise to admit a new claimant in a multiplepoinding after decree of preference, except upon terms of paying costs, and its discretion in fixing the proportion to be paid will not readily be interfered with. — Geikie v. Morris, 3 M'Q. 347 (1858); Aff. 4. In an action of exoneration and multiplepoinding by trustees, it is competent for the Inner-House, on reclaiming note by the trustees, to open up the record and allow an amended claim, recalling to that effect an interlocutor which had not been reclaimed against, findiTig one of the parties entitled. — Ealston v. Hamilton, 4 M'Q. 397 (1862); Aff. 23 D. 1290. See Bankruptcy, 12 — Conveyancing, 10 — Partnership, 44. jSToticb. — See Arrestment, 4 — ^Assignation, Intimation of — Bank, 5, 7 — ^Bankruptcy, 7, 9 — Executor, 5 — Landlord and Tenant, 17 — Law Agjent, 1, 14. ITUISAJSrCE. 1. Interim interdict granted against whale-oil boiling being com- menced within burgh. — Farnie v. Trotter, 5 W. & S. 649 (1831) • Aff. 9 S. 144. 2. In an action against the owner, tenant, and sub-tenant of a dye- work, for nuisances through the operations of the sub-tenant, an issue was taken against the sub-tenant, and another against the landlord and tenant, and a new trial being ordered on account of misdirection as to PAPIST. 237 the first issue ; held that the soeond also should be sent again to trial, and that the landlord was liable if the operations authorised in the lease would, in the ordinary course of business, create a nuisance, though by possibUity it might have been avoided. — Hamilton y. Dunn, Z S.^ M'L. 356 (1838) ; Aff. 15 S. 853. 3. Interdict continued against slaughtering cattle in buildings in course of erection for that purpose, with (of consent) liberty to apply for an opportunity to try the experiment whether it could be conducted without nuisance.— Pefitev. Swinton, M'L. ^ R. 1018 (1839); Aff. 15 S. 775. 4. In a suspension and interdict on account of an alleged nuisance, the petitioner having consented, after experiments made, and a judicial report that no nuisance was created, to a recal of the interim interdict, without any terms being imposed as to proceeding to trial, he cannot afterwards in the same suit insist on an issue being sent to a jiury as to the fact of nuisance. — Amot v. Brown, 1 M'Q. 229 ; 1 Stu. 694 (1852) ; Aff. 8ee Evidence, 20. OUTLAW. A party, after the alleged commission of a murder, executed an ex facie absolute disposition of his heritage, in reference to which a back- bond declaring it to be in trust for him, his heirs and assignees, was granted. He was subsequently cited edictaUy to appear before the Court of Justiciary,'^and on failuTe, was outlawed. He afterwards directed the trustees to execute a strict entail of his property. Held that the entail was effectual, and not reducible by the heir-at-law. — Macrae v. Macrae, M'L. ^ B. 645 (1839) ; Aff: 15 8. 54 and 1312. See EntaU, 10— Trust, 39. See Foreign, 23. PAPIST. 1. The estate of which an attainted Papist was in possession through a trustee at the date of his attainder, held to be forfeited, it not having been claimed by the Protestant heir, under the Act 1700, c. 3, till sub- sequently to the attainder. — Comrs. of Porf Estates ». Mackenzie, Eobert. 263 (1720) ; Eev. And the estates of the Papist's attainted vassals, which would, under the Acts of Parliament, have escheated to 238 PAEISH. [Maintenance of Church. tlieir superior, if he had remained loyal, in like manner passed on his attaiader to the Crown, and not to the Protestant and loyal heir. — S. C, Eohert. 280 (1720) ; Eev. 2. A chUd of two years old, though the son of Popish parents, could not be presumed a Papist under the Act 1700, c. 3. — Comrs. of For/. Estates r. Drummond, Eobert. 290 (1720) ; Aff. 3. A question on the statutes respectiug the succession of Papists, 1695, c. 26, and 1700, c. 3. — Neilson v. Murray, Eohert. 547 (1726)'; Aff. M. 9593. 4. Disqualification of Papist heir. — NeUson v. Murray, Cr. & St. 65 (1732) ; Aff. PAEISH I. Disjunction and Erec- tion, p. III. Churchtard, . . p. 239 IV. Minister's Stipend, 239 V. Manse and Gi/Ebe, . . 240 II. Maintenance or Church, 238 I. Disjunction and Ebection. 1. In a suit for this purpose before the Teind Court, the whole heritors must be called, and if a perambulation is ordered, it must be done fully over the whole parish, — Viscount Kilsyth v. Presby. of Stirling, Eobert. 65 (1713) ; Eev. 1697. See Action, 10. 2. On disjunction of a parish, the whole amount of the original stipend may be modified to the minister of the original parish, and localled on the lands thereof, though above the legal TninimnTn , and not in use to be paid. — Lord Blantyre v. Currie, Eobert. 88 (1714) ; Aff. 1708. See Action, 10 — Pabtneeship, 29 — Patronage, 9. II. Maintenance of Church. 3. A part of the cathedral of Elgin was used as a parish church ; another part, repaired and fitted up by the magistrates for divine worship, is not the parish church, and may be granted by them for Episcopal service. — Innes y. Ministers of Elgin, Eobert. 69 (1713); Eev. Macl. Crim. 582. 4. Where in a parish, partly burghal and partly landward, there is no custom to regulate the proportion in which the heritors are to con- tribute to the rebuilding of the church, the charge is to be borne by aU owners of land and houses in proportion to their real rents. — Harlow V. Merchant Maiden Hospital (Peterhead), 4 P. 356 (1802) ; Alt. MaxweU v. Gordon (Anwoth), 6 P. 184 ; 4 Dow, 279 (1816) ; Aff. 5. After a Presbytery has found the erection of a new church neces- sary, and called on the heritors to proceed therein, without effect, it Minitter's Stipend.} PARISH. 239 may order the erection, and decern against the heritors for the cost. — Maxwell v. Gordon (Anwoth), 6 P. 184 ; 4 Dow, 279 (1816) ; AS. 6. The Court of Session, having appointed a committee of the heritors to enter into a contract for rebuilding the parish church, in accordance with a prior decree, with power to them to assess the heritors in the sums contained in the contract, and, in general, to take all necessary steps for executing the work, and the work having exceeded the con- tract price, and other expenses and interest having been incurred, for which the committee of heritors granted their personal bUls, they are entitled to relief by the other heritors, and, after the rating powers of the committee of heritors were exhausted, the whole heritors had power to make a rate for payment of the balance due. — Forbes v. Shaw (Falkirk), 4 W. & S. 300 (1830); Aflf. 5 S. 761. !« The heritors are not bound to provide additional church accom- modation in consequence of the increase of population, the existing church being in proper repair. — MiUer v. Earl of Glasgow (Neilston), 7 W. & S. 185 (1834) ; Aff. 9 S. 370. 8. On the repair and reseating of a parish church no change ought to be made in the allocation of seats, and therefore the magistrates of a burgh who had occupied, on an informal and doubtful title, one of the galleries, held entitled to the same after its restoration. — Duke of HamUton v. Mags, of Hamilton, 7 S. BeU, 1 (1850); Aff. 8 D. 844. See SuPBBioB and Vassal, 19. III. Chuech-tabd. 9. A church-yard having been disused, and included within the pleasure-grounds of one of the heritors, he is bound to fence it and to aUow access, on due notice, to all relatives of persons buried. — Earl of Mansfield v. Wright, 2 S. Ap. 104 (1824) ; Aff. 10. Possession for more than forty years without infeftment, on a dis- position a non domino, of a burying-ground, does not give any prescrip- tive right. — Ouchterlony v. Off. of State, 1 W. & S. 533 (1825) ; Aff. 2 S. 437. See Action, 10. IV. Minister's Stipend. 11. The Court of Teinds has no power to grant an augmentation of ministers' stipends out of any other fund (though appropriated to the purpose) than the teinds of the parish. — Wishart v. Mags, of Edinburgh, 2 P. 118 (1766); Eev. M. 7476. 12. The minister of North Leith has no right to teind on fish brought into Leith or Newhaven only for re-exportation, but, in respect of usage, 240 PARISH. [Manse and Glebe. he has a right to teind on fish that have already paid teind where they were caught. — Johnstone v. Chalmers, 2 P. 559 (1781) ; Aff. 13. Appeal lies against the decree of the Court, as Commissioners of Teinds, refusing an augmentation. It is not a valid defence in law against a claim for augmentation that one augmentation has already been granted since the previous. — Milligan v. Wedderhurn .(Kirkden), 2 P. 621 (1784); Eev. 14. One augmentation does not exclude a subsequent claim for aug- mentation, and remit to consider whether possession of the ipsa corpora of the teinds by the minister, for fifty or sixty years, does not found a prescriptive right to the whole. — Mitchell v. Off. of State (TingwaU), 3 P. 140 (1789); Eev. 15. Funds being invested in land, and mortified for the use and be- hoof of the minister, for making up his stipend to 800 merks, he is entitled to the full rents though exceeding that sum, and a final deeree in an action respecting the management of the funds before they ex- ceeded that amount, finding that they were to be applied in the first place to the stipend, and in the second place to some minor purposes, does not exclude the minister from claiming the surplns after these purposes are satisfied. — Eennie v. Tod (Borrowstounness), 5 P. 144 (1806) ; Eev. 16. The Court of Session, as Commissioners of Teinds, had power, even prior to 48 Gbo. III. c. 138, to make further augmentations, though one had already been made subsequent to 1707. — Earl of Wemyss v. Macqueen (PrestonMrk), 5 P. 210 (1808) ; Aff. M. Stipend, Ap. No. 6. Duke of Hamilton v. Scott, 5 P. 224 (1805) ; Aff. 17. During the vacancy of a parish, though by the wrongful act of the Presbytery, the stipend belongs to the Widows' Fund, under 54 Geo. III. c. 169. — Gordon v. Earl of Kinnoul, 4 S. BeU, 126 (1845) ; Eev. 5 D. 12. See Bankeuptoy, 21-^Burgh, 17 — Supbeior and Vassal, 19, 23 — Teinds. Y. Manse and Glebe. 18. On a common being divided among the heritors, one of them undertook that the minister of the parish should have right of grazing on his share. Held that this does not prevent the minister from claiming designation of a grass glebe, and that on such claim it should be designed out of the lands of the heritor who had so undertaken, though his lands were now aU arable, and there were kirk lands in grass in the parish. — WiUde v. Simpson (Foulden), 2 P. 222 (1770) ; Aff. 19. A new manse may be ordered to be buUt on a report by a builder that it would be the best course for all parties, though it is Manse and Glebe.] PARISH. 241 only thirty years old ; and the expense of building need not be restricted to L. 1000 Scots under the Act 1663. — ^ Mercer v. WilHamson (Lethindy), 3 P. 43 (1785) ; Aff. 20. The minister of a royal burgh, having a landward district annexed, is entitled to have a manse and glebe assigned him, and his claim is not barred by acceptance by a predecessor of a sum in lieu of manse. — Earl of Elgin v. M'Lean (Dunfermline), 5 P. 593 (1812) ; Aff. M. Manse, Ap. No. 1. 21. The minister of a royal burgh, having a landward district an- nexed, is entitled to a manse. Specialties in the question whether Ayr is whoUyburghal or partly landward. — Auld v. Mags, of Ayr, 2 W. & S. 600 (1827) ; Eev. 4 S. 99. 22. A declaration by the Presbytery, after repair of a manse, that it is sufficient, does not make it a free manse, and a declaration of free manse does not exempt the heritors from repairs rendered necessary by lapse of time. — Duke of Hamilton v. Scott (Avondale), 5 P. 745 ; 1 Dow, 393 (1813) ; Aff. 23. When a manse has been built, but become ruiaous, the rebuild- ing falls under the second branch of the Act 1663, c. 21, in which the expense is not limited to L.IOOO Scots, and L.1200 sterhng is not too large a sum to be decerned for. — Dingwall v. Gardiner (Aberdour), 1 S. Ap. 10 ; 3 BUgh, 72 (1811) ; Aff. E. C. 27th Nov. 1816. 24. When lands were held in commonty by an abbey and a layman, and a singular successor acquired right to both without distinction, and the Presbytery had set out a grass glebe, on the footing that the whole was kirk-lands, their decree was suspended. — Eorbes v. Wilson (Falkirk), 1 S. Ap. 249 (1822) J Eev. E. C, 10th June 1818. 25. A minister found entitled to the grass glebe designed by the Presbytery, lying within the old park of a castle now in ruins, in pre- ference to another offered by the heritor, which was surrounded by a common, and also found entitled to pecuniary compensation for want of a glebe pending the litigation. — Moore v. Belches (Oldhamstocks), 2 W. & S. 558 ; 1 Dow & Clark, 55 (1827) ; Eev. 4 S. 347. 26. The ministers of the Church of Scotland are Kable to assessed taxes, and to property-tax and rates under local acts, on their manses, glebes, and stipends. — M'Lea v. Walker, 1 BHgh, 535 (1819); Aff. But see Poor-rates, 7. See Acquiescence, 4 — Superior and Vassal, 19. 242 PARTNERSHIP. [Rights of Partners. PAETNEESHIP. I. Rights of Partners inter se, Property oi D. 242 II. Firm, . t" 246 II. Liabilities OF Firm TO Third Parties, . 246 IV. Transfer of Shares, 249 V. Dissolution of Firm, . 250 VI. Liabilities of Partners to Third Parties, . 250 I. Eights of Paetnebs inter se. 1. A partner having made a claim, against the Crown, which was allowed in his accounts, but afterwards having stated that the claim was not reaUy good, and waived it, is still liable to his co-partners for the share due "them of the sum allowed. — Brand v. Kennedy, Bobert. 8(1710); Aff. 2. Two parties having entered into joint contract to execute work, and having afterwards agreed between themselves that each should execute half, and receive haK the consideration, and one having drawn more than his share, he is liable to pay the proper proportion to bis joint-contractor, with interest from the date of its receipt, and costs of an action for obtaining the division. — SabJdn v. Hog, Bobert. 147 (1715); Bev. 3. A contract of partnership provided that the representatives of one deceasing should be entitled to the value of his share as at the last annual balancing ; held that this did not apply where the firm had become bankrupt subsequently, and before the partner's, death. — Blair V. Douglas, 6 P. 796 (1777) ; Aff. M. 14577. See 6. 4. A partner in a company held bound to contribute his proportion of a call made for the payment of its debts, though exceeding the nominal amount of his shares. — Oi-ay v. Douglas, 6 P. 800 (1779) ; Aff. 5. A partner in two companies, one of which. A., was indebted to the other, B., haying received from his copartners in A. funds and secu- rities for the purpose of, and acknowledged by him to be sufficient for, the payment of its debts to B., is not entitled, on the dissolution of B., to claim his share of its assets, as if such debt were paid. — Whytlaw V. Coats, 4 P. 148 (1800) ; Aff. 6. By deed of partnership a balance was to be struck annually (which by custom was done in May), and on a partner dying he was to be entitled to a share of profits according to the last struck balance. Held that on the death of a partner in July his representatives were entitled to a share ia the profits up to the May preceding, though, by the default of another partner, no balance had in fact been struck since the May of the year before. — Forstery. Paterson, 4 P. 295 (1802) ; Aff. Rights of Partners^ PARTNERSHIP. 243 7. Eemit to take evidence of facts as to division of assets. — - Bruce V. OgUvie, 5 P. 706 ; 1 Dow, 38 ; Eem. 8. A contract of partnership for 124 years, for the mutual employ- ment of coal-pits and salt -works belonging to the two partners, with leases of each, is not void on account of the length of the time, and the heirs are honnd by it. Circumstances in which the allegation of fraud, and of the business being a losing concern, as grounds for its dissolution, were repelled. — Warner v. Cunningham, 3 Dow, 76 (1815) ; Aff. 9. A manager of a company receiving, in addition to his salary, a share of profits without advancing any capital, and being liable to dis- missal, is not, as between the partners of the company, to be held as a partner. — Geddes v. Wallace, 6 P. 643 ; 2 Bligh, 270 (1820) ; Rev. See Written Document, 4. 10. In an action by a partner for a share of profits under the con- tract of copartnery, all the existing partners, and the representatives of deceased partners whose interest has not yet terminated, must be called as defenders, whether they are solvent or bankrupt. — Bell v. Willison, 1 S. Ap. 220 (1822) ; Alt. 11. Three partners in a speculation having sold partnership property to one of their number, who resold at a profit, one of them was held barred, in the special circumstances, and by acquiescence, from claiming a share in the profit on the ground of fraudulent concealment ; but costs not given. — Bayne v. Kyd, 5 Dow, 151 (1817) ; Aff. 12. A partner having without authority used the name of the part- nership in a joiut adventure, it is entitled to the profits arising there- £fom, and may use arrestment on debts due to the joint adventure. — Wallace v. Campbell, 2 S. Ap. 467 (1824) ; Aff. 1 8. 53 and 509. 13. One of the partners in a joiat adventure haviug in the written contract undertaken to proceed to India to conduct it, he is not entitled to further remuneration for work done there in winding up the adventure, on circumstances having rendered it improfitable, or for damages on account of loss of profit on his own capital on the concern heiD.gwomidu-p. — CampbellY.Beath,2W.4'S.25{182Q);Rev.3S. 353. 14. A partner having disclaimed a certain adventure, and desired that, if conducted at all, it might be solely in the name of his copartner, he is not liable for loss nor entitled to profit upon it. — BucJianan v. Morris, 2 W. ^ 8. 143 (1826) ; Aff. 4 S. 37. 15. The shares of partners being originally equal, proposals made by one of them for an alteration in the relative proportion, but not definitely assented to, do not alter the original contract. — 8truthers v. Barr, 2 W. ^ 8. 153 (1826) ; Rev. 4 ;S^. 118. 16. A firm having kept no books, private books of one of the parties, in which were entries relating to the firm, are not evidence in his Q 2 244 PARTNEESHIP. [Rights of Partners. favour, there being no proof of their having heen seen by the other partner. — ^?rei!!^ v. Mitchell, 4. W. ^ S. 47 (1830) ; Aff. 5 S. 32. 17. When there is no written contract of partnership there is no presumption of law that there is an equality in the respective shares ; the question is one for a jury, and the equality will only he assumed in the total absence of circumstances to lead a jury to infer a different proposition. The question whether the entering into partnership is a waiver of aU previous claims between the parties is also proper for a imj. — Thomson Y. Campbell's Trs. 5 W. ^ 8. 16; 7 Bligh, N. S. 432 (1831); Rev. 7 S. 650. 18. A contract of copartnery of a joint-stock company provided that " ordinary business" might be transacted by a quorum of five of the fifteen directors, but that other business should require a majority of the directors. Held that the caUing up of the full amount of the shares was not ordinary business, and required a majority. — Clyne v. Selater, 5 W. ^ 8. 625 (1831) ; 9 8. 248. 19. Questions respecting iaterpretation of, and management under, a deed of partnership for the purchase of an estate, it being purchased in name of one partner, who burdened and refused to sell it, and an arbitration clause being called into operation. Question also as to usury from payment of compound interest. — Hunter v. Cochrane, 5 W.4 8. 639 (1831) ; Aff. 9 8. 477. 20. Opinion that a partner in a company may be sequestrated at the instance of other partners on a debt due to the partnership. — Scott v. Kerr, 6 W. & S. 214 (1832). 21. The deed of a joint-stock shipping company stipulated that the free profits should every year be divided, after deduction of 25 per cent, for a sinking fund tOl the fund should reach a fixed sum. Held that before computing the net profits it was a proper course to make a de- duction for deterioration, and that the profits on an insurance account were subject to the 25 per cent, deduction. — Flowerdew v. Dundee, ^c. Shipping Go. 6 TF. ^ ;S. 160 (1832); Aff. 9 8. 373. 22. A partner of a company, sued by it as a contributory, is not entitled to an action of relief against other partners in respect of their liability to the company anterior to the date of the state of accounts on which the company's action is brought. — Martin v. Hunter, 7 W. 4r 8. 574 (1835) ; Aff. 23. When the act of incorporation provides that " no calls shall be made but at the distance of one calendar month at least from each other," it is incompetent to make at the same time two calls payable at a month's interval, and iu such case the first only is good. — Baillie {Clyne's Trs.) v. Edin. Oil Gas Co., 2 8. 4: M'L. 243; 3 CI. 4 Fin. 639 (1835); Rev. 10 8. 723. Rights of Partners!] PARTNERSHIP. 245 24. A resolution of a company incorporated by act to dissolve itself and become merged in another company, is not binding upon share- holders not actually consenting, and they are entitled tq recover the market value of their shares from the company. — Baillie {dyne's Trs.) V. Edin. Oil Gas Go. 2 S. ^ M'L. 243 ; 3 CZ. ^ Fin. 639 (1835) ; Aff. 10 S. 723. 25. Under the terms of a partnership contract the directors held entitled to relief from the partners of their debts incurred m. the management, though to an extent beyond the amount of their shares, and though they had begun business before the whole shares were taken up. —AlexanderY. Macalister, M'L. ^ R. 353 (1839) ; Aff. 15 8. 1061. 26. A director, in whose name as trustee for a company the property of it has been vested, is bound after his retirement to concur when re- quired iu a conveyance, but he is entitled to have the fact that he is no longer a director stated ia the conveyance. — ■ Etewart v. Oloag, M'L. ^ R. 721 (1839); Aff: 16 8. 86. 27. Where a prosecution of two partners, ia respect of an illegality, is compromised, one of the guilty parties has right to contribution from the others. — Campbell v. Campbell, 1 Robin. 1 ; 7 CI. 4r Fin. 166 (1840); 4/. 28. A shareholder ia a company is liable for calls though he has not subscribed the books, which by the partnership deed is necessary before he can claim the rights of a partner. — Bumes v. Pennell, 6 S. Bell, 541 ; 2 H. L. Ca. 497 (1849); Aff. 10 D. 689. 29. A subscription having been got up for the purpose of buildiag new churches and attaching districts to them, and an association formed for the purpose, but. it being afterwards found that the church courts could not attach the districts as parishes quoad sacra, it is not com- petent to part of the subscribers to demand restitution of the money, and sale of the churches, as the maia object could stiU be effected, though by other means than at first contemplated. — Bain v. Black, Q S. Bell, 317(1849); Aff. 30. When it is impossible or very difficult, from the nature of the company, to get the shareholders to examine its affairs (as in the case of a bank which has made advances to its shareholders), the Court will entertain an application by a single shareholder to have its affairs examined on averments of improper acts by the directors, with a view to its dissolution if its affairs are in a position which, under the deed, would warrant that course. — North British BankY. Collins, 1 M'Q. 369 ; 2 atu. H. L. 26 (1852) ; Aff.U D. 349. See 8, 51. 31. A committee formed, and receiving subscriptions, to effect a cer- tain object, e.g., to procure a railway act, is entitled to use the sub- scriptions for the purpose to the full extent originally intended, though 246 PARTNERSHIP. [Liability of Firm. some of the subscribers afterwards object, and is not liable for a sum which might, by a dififerent course of conduct, have been realised. — Baird v. Boss, 2 M'Q. 61 (1855) ; Bev. 32. A shareholder cannot sue for reduction of a call properly made, on the ground of misapplication of the funds so raised, nor for a count and reckoning, until at least he has exhausted all regular means of getting the company to correct its accounts. Inaccurate accounts are not properly objected to as a matter ultra vires of the company. — Orr V. Glasgoio, Airdrie, Sfc. Ry. Co. 799 (1860) ; Ag. 20 D. 327. See 49-52, 54-59 — ^Dbbt, 1 — Law Agent, 9 — Public Works, 13, 15. II. Phopbhty of Firm. 33. Eemit to consider whether heritable estate of a partner, used for the purposes of the partnership, becomes personal as to succession. Opinion of Lord Eldon that it should. — Kirkpatrieh t. Bime, 5 P. 525 (1811); Bev. 1st March 1847. This case was compromised, P. C. 1812-14, p. 684. 34. Next of kin of a partner held entitled to produce evidence of a property in Jamaica having been partnership property, although the executors had fifteen years before settled accounts with the partnership on the footing that it was not. — Lister v. Sutor, 6 P. 78 (1815); Aff. 35. A portrait painted at the instance of an association as a testi- monial to an individual, and which was iutended to be placed ia a public buildiug, but which the managers of the building declared should remain the property of the association, remains its property on the removal of the building to another site, and it is not subject to any obligation to allow it to be transferred. The son of the party has no right to interfere in the disposal of the portrait. ^ Observations on the copyright of letters. — Clerk v. Adam, 6 W. 4- S. 141 ; 1 CI. i^ Fin. 242 (1832) ; Alt. 9 S. 708. 36. Estates purchased in the name of one partner of a company, and in respect of which he exercises all the usual rights of ownership, are not to be considered as in trust for the company, because of entries in the books entitled with the name of the estates, the purchase-money having been advanced by the company, but a later declaration being made that they were the partner's private speculation. — Boyal Bank v. Christie, Bobin. 118; 8 CI. ^ Fin. 214 (1841); Aff. F. C. Uth May 1839. See Action, 4, 5, 6— Bankruptcy, 23, 47 — Insurance, 3. III. Liabilities op Firm to Third Parties. 37. Bonds issued by a company, to themselves, in name of their Liability of Firm.] PAETNEKSHIP. 247 secretary, cannot compete with prior creditors. — Billers v. Dulm of Norfolk, Cr. ^ St. 255 (1739) ; Aff. 38. Eemit to consider whether a contract entered into by an iacor- porated company was still hinding after the lapse of more than forty years, the prescription being alleged to have been interrupted by an action and horning directed, not against the incorporate firm under which by their act the company is to sue or be sued, nor against the directors who subscribed the contract, but against the governor and directors at the date of action, some of whom had ceased to hold office before the homing was given. — Grove v. Grant, 3 P. 17 (1785) ; M. 11283. 39. Goods ordered by a partner prior to, but not delivered tiU after the death of another partner, form a debt against the partnership, but those ordered after the death of a partner abroad, but before the event was known, do not form a debt against the partnership. — Oliewp v. Aiton, 2 P. 283 (1772) ; Alt. M. 14573. 40. A bank having appointed one of its partners to be agent in ex- changing its notes with those of another bank, and the agent having assented to a new arrangement, under which he opened an account with the other bank, and drew upon it for the amount of notes of his own bank which came into its hands, does not in this way bind his own bank for the amount overdrawn in such accoim.t, but another partner of his own bank to whom he communicated the arrangement and who approved of it, may be bound. — Monereiff v. Dunlop, 3 P. 595 (1797) ; Aff. 41. Where an individual was partner in two companies, held that, on the evidence, advances appearing in the books of the one company (which were not evidence against the other) to have been made by it, were fraudulently made to the common partner. — Wilson v. Laidlaw, 6 P. 222 (1816); Eev. 42. When a certain judicature is appointed under a company's act to determine aU questions arising between it and others in pursuance or execution of the powers thereby granted, this does not oust the jurisdiction of the ordinary courts in respect of claims made on the ground that the company had not acted in pursuance of its powers. Eoad and canal companies must observe strictly their powers, under the penalty of damages in case of error or deviation. — Shand v. Hender- eon, 2 Dow, 519 (1814) ; Rev. Ooldie v. Omiald, 2 Dow, 534 (1814) ; Bern. Burnet v. Knowles, 3 Dow, 280 (1815) ; Aff. 43. A company, or the other partners, cannot be sued for damages for malicious prosecution in respect of an alleged theft of partnership property, when the charge was only made by one of the partners as an individual. — Arhuckle v. Taylor, 3 Dow, 160 (1815) ; Rem. 248 PAETNEESHIP. [lAdbility of Firm. 44. When two bills were signed by a partner for the price of some goods, the firm is liable for both in the hands of endorsees for value, and there is no ground for a multiplepoinding to ascertain which is to be paid. — Davidson v. Mobertson, 3 Dow, 218 (1815) ; Bev. 45. A partner in a joint adventure may bind the other partners in respect of the deaUngs of the adventure. — Davidson v. Mobertson, 3 Dow, 218 (1815) ; Rev. 46. Special circumstances in which a bill accepted by a partner under the partnership firm, alleged on one side to have been for benefit of the firm, and on the other to have been for a private debt, held not bind- ing on the firm. — Johnstone v. Phillips, 1 S. Ap. 244 (1822) j Eev. 47. Held on evidence that one company had no partnership with another though they had partners common to both. — Learmonth v. Livingstone, 1 S. Ap. 481 (1823); Aff. 48. Transactions under a particular contract commencing at a parti- cular date, are not to be regarded as a continuation of prior transactions between one of the parties to the contract and an individual member of the firm which became the other party to the contract, even though the firm may pay acceptances made by their partner prior to that date, or a balance due to him. ■ — Downe v. Pitcairn, 3 W. ^ 8. 472 ; 4 Bligh, N. S. 550 (1829) ; Aff. 2 S. 658. 49. liTeither a shareholder in a company nor its law-agent binds it by misrepresentation as to its affairs made to a purchaser of shares. The directors, if they declare dividends out of capital, are guilty of a conspiracy, and are liable criminally as well as civilly. But it is not misrepresentation if the balance-sheet does not disclose future contin- gent liabilities. — Bumesv. Pennell, 6 S. Bell, 541 ; 2 H. L. Ga. 497 (1849); Aff. 10 Z). 689. 50. In an action by a banking company for inoney lent, it is a good defence that it was lent as part of a fraudulent transaction, the purpose of which was to sustain the public value of the company's shares, and the- means were by inducing the borrower to believe that the shares were valuable, when in fact they were worthless, and so to purchase, » through the company as brokers, its own shares to the amount of the loan. Observed that the report of the directors of a company, after being adopted by it, binds the company to its accuracy, and that the principal is liable for misrepresentations made by his agent, although the agent believed them to be true. — National Exchange Go. v. Dreiv, 2 M'Q. 103 (1855) ; Aff. 12 D. 950. 51. Directors of a joint-stock company are not liable for damages to a shareholder in respect of any act which the company has power to sanction, and does sanction, such as loss of funds by improvident Transfer of Sharesi\ PAKTNEKSHIP. 249 advances; but they are liable for false and fraudulent reports, and declaring false dividends, whereby a party is induced to purchase shares. The naeasure of damages in such a case is the difference between the price paid and the true value of the shares at the time of purchase. The whole of the directors need not be sued. — Davidson v. Tulloeli, ZM'Q. 783 (1860) ; Aff. 20 D. 1045 ; Gullen v. Thomson's Trs., 4 M'Q. 424 (1862) ; Eev. 23 JD. 574. See Fraud, 6. 52. The managers of a joint-stock company are the servants of the company and not of the directors, and are equally liable with the directors in damages for loss occasioned by the publication of false reports of its affairs. — OuUen v. Thomson's Trs.] 4 M'Q. 474 (1862) ; Bev. 23 D. 574. See Action, 12, 13, 14 — Fohbign, 15 — Insueanoe, 3 — Master and Servant, 1 — Public Works. IV. Transfer of Shares. 53. The sale of shares to the remaining partners, in terms of the articles of copartnery, held proved by the minutes, though informal, and other evidence. — Morison v. Smith, Roiert. 249 (1719) ; Aff. 54. The share of a partner beiag assigned to the company, under agreement with the Ediaburgh directors, the company is not entitled afterwards to object that by its deed the consent of the directors in two other towns is requisite to such a transaction. — Craig v. Douglas 4 Co., 2 P. 575 (1781) ; Aff. 55. An assignation of a share in a company, duly intimated, is not defeated by the assignor having held the share only in latent trust, the rules of the company not allowing such trust to appear in the books. — Eedfeam v. Sommervail, 5 P. 707 ; 1 Dow, 50 (1813) ; Bev. 56. A partner in a joint-stock company having ex facie absolutely assigned his shares to a bank, which they accepted, they become part- ners, and cannot afterwards free themselves from liability as such by alleging that the assignation was in security merely, and that certain forms of transfer provided for in the deed of partnership had not been observed, the company, by accepting intimation of the assignation, having waived the right to insist on their observance ; but costs not given to the company thus failing to observe its own rules. — Allan v. Tumbull, 7 W.^ S. 281 (1834); Aff. 11 S 487. 57. Eecognition by payment of interest, &c., on the part of a com- pany, of a transfer of a share, prevents it from founding on defect of form in the transfer. — Drummond v. Hunter, 7 W. ^ S. 564 (1835) ; Aff. 12 S. 620. See Assignation, 11 — Public Works, 13. 250 PAETNEKSHIP. [Liability oj Partners. V. Dissolution of Firm. 58. A joint-stock company may, after dissolution, sue in tlie com- pany name for payment of contributions due by a partner. — Gordon v. Douglas, 3 P. 428 (1795); Aff. Y. C. 11th July 1792. 59. In a partnersliip consisting of three persons, all of whom died, the last survivor leaving trustees, who for a short time carried on the husiaess, hut afterwards stopped it, while various actions were brought against the late company, the Court held entitled, on the application of executors of a predeceasing partner, to appoint a judicial factor on the partnership estate. — Dixon v. Dixon, 6 W. & S. 239 (1833); Aff. 10 S. 209. 60. On a firm being dissolved by death of a partner, unappropriated payments made to its creditors by the firm which continued its busi- ness, are to be imputed to discharge of the debts of the former firm, and after they are discharged, securities which had been granted by it are extinguished, and cannot be set up to cover debts incurred by the new firm. Therefore a new security over the same estate, granted to the same party by the apparent heir of one of the partners, is void as against the other creditors of his father, under the Act 1661, c. 24. — Royal Bank v. Oliristie, 2 RoUn. 48 ; 8 CZ. ^ Fin. 214 (1841) ; Aff. F. a, nth May 1839. 61. When a partnership is dissolved by death of one of the partners, it survives, for the puipose of winding up, in the other partners, and the representatives of the deceased are not entitled to have a judicial factor appointed, unless there be neglect or improper conduct. — Collins V. Young, 1 M'Q. 385 ; 2 Stu. H. L. 54 (1853) ; Eev. 14 D. 540. VI. Liability of Pabtnees to Thied Parties. 62. Partnership in a joint adventure established by evidence, though there was no deed or articles, and each partner held liable for goods furnished to order of one who was authorised as preapodtus negotiis. — Cunningham v. Kinnear, 2 P. 114 (1765) ; Aff. 63. A partner by a latent deed conveying all his interest to the other partners, but retaining right to a share in the profits, is stiU liable to the creditors of the firm — Boulton v. Mansfield, 3 P. 70 (1787) ; Aff. 64. In particular circumstances, a party who had intrusted funds to a partnership held entitled to sue a partner who had subsequently re- tired, devolving the business of the old firm upon a new one, which had not been duly intimated to the client, to make good defalcations by the new firm on its bankruptcy. — Qrah-am v. Henderson, 4 P. 421 (1802);^/. 65. The partner of a company is liable fpr all bOls dra'\vn in name of PATENT. 251 the firm, although some of them are on account of another firm of the same name, of which he is personally not a partner, unless the creditor has notice or reasonable grounds of suspicion that he is not a partner in the second firm. — Fleming y. M'Nair (et e contra), 5 P. 632 and 639 (1812) ;4f. 66. A father as administrator for his son, a partner in a company, cannot hiad him hy his admissions of debt, not being the authorised cashier or accountant of the firm. — Wilson v. Laidlaw, 6 P. 222 (1816); Eev. 67. A partner remains Kable for company debts, although by a private agreement with the other partners he has accepted a fixed annuity in place of a share of profits. — Gillon v. MacUnlay, b W. 4^ S. 468 (1831) ; Aff. 9 S. 90. See 9. PATENT. 1. Prior use in England invalidates a patent in Scotland. — Roebuck V. Stirling, 2 P. 346 (1774) ; Aff. M. Priv., Ap. I, No. 2 Note. Brown V. Annandale, 1 S. Bell, 70 ; 8 CI. 4- Fin. 437 (1842) ; Aff. 3D. 1189. 2. In an action for infringement of a patent for a chemical manu- facture, to which the defence was insufficiency of the speci6.cation, and that the patent was only for a modus operandi with known materials to produce a known result, remit to frame issues to try — \st, Which of the patented improvements had been adopted by the defender ; 2d, Which of them had been in use before the patent; 3d, In what particu- lars the patented improvements consisted. Direction that the patentee should be pursuer in the trial. — Astley v. Taylor, 1 S. Ap. 54 (1821) ; Bev. 3. Notorious public use of an invention before it is patented, though discontinued for some time before the patent, will invalidate it ; but mere trials of an incomplete invention do not amount to pubhc use. Query, Whether the patent would be void if the invention has, though at one time in use, been disused so long as to be quite lost sight of ? — Househill Go. v. Neilson, 2 S. Bell, 1 ; 9 Gl. ^ Fin. 788 (1843) ; Bev. 5 D. 86. 4. A party having, on compromising proceedings instituted against him for breach of patent, bound himself to pay at a certain date for all the goods already manufactured in the mode specified, and for all the goods he might thereafter manufacture in that or any other mode with- in the patent, he is not allowed afterwards to dispute that the mode specified was within the patent. —Bairdv. Neilson, 1 S. Bell, 219 ; 8 CI. 4- Fin. 726 (1842); Aff. See Action, 106. 252 PATRONAGE. PATEONAGE. 1. In an action by a patron against the presbytery, who had pre- sented jure devolufo, to have it declared that he was patron, and had presented in due time, the Lord Advocate must be made a party. — Presbytery of Dunsew. Hay, Cr. & St. 475 (1750) ; Eev. M. 9911. 2. On a vacancy occurring, the Crown and a private party claimed the patronage, and each presented a clergjrman. The Presbytery and General Assembly inducted the presentee of the private patron, but the Crown was afterwards found by the Court of Session to have right to the patronage. Held that the Crown presentee must be inducted, and that till this was done the stipend from the date of the vacancy occur- ring ought to be paid to the Crown, under the Act 1592, which is to be held as revived by the Act 10 Anne, though not expressly re- enacted. — Lord Advocate v. Dick (not reported). Lords' Journals, 9th May 1753 j Appeal Cases. 3. The Crown is original patron of aU parishes, and a grant of patronage to a subject may be lost by non user. — Lord Advocate v. Earl of Home, 2 P. 25 (1759) ; Eev. M. 10777. 4. A Crown charter of lands having also conveyed the patronage of the churches, benefices, and chapels of the same, and been followed by exercise on the part of the owner of the right of presentation to a parish of the same name as the lands, and in which they were situate, except when the exercise was suspended by forfeiture or Act of Parliament, the Crown is effectually divested. — Lord Advocate v. Douglas, 2 P. 104 (1765) ; AS. 5. A conveyance of a patronage originally vested in a bishop, and made subsequent to the Act 1685 being ratified by Parliam.ent in 1669, though never acted upon, is effectual. — H*pburn v. Earl of Portmore, 2 P. 218 (1770) ; Aff. 6. Eight of patronage may be exercised by commissioners for the patron appointed for that purpose, and if so exercised prior to the patron himself presenting, the presentation of the commissioners is preferable.— Tait?!. Keith, 2 P. 447 (1778) ; Aff. M. 9938. 7. Question as to the title and acts of possession of patronages which had been vested in the Bishop of Eoss and been granted by the Crown. — Lord Advocate©. Mackenzie, 6 P. 43 (1814) ; Aff. 8. Where the heritors and elders of a parish have purchased the presentation, the presentation may be by vote, and the preses of the meeting has not a casting vote. A proxy by the curators of a female minor is void if not signed by her. Minutes of meeting of heritors, having been altered after the meeting, are not unexceptionable prima PATRONAGE. 253 faeie evidence of its proceedings. — Stirling v. Gamplell, 6 P. 238 (1816) ; Aff. F. C. m, March 1813. 9. On a part of a parish being disjoined and erected into a new parish, endowed by subscription, the patron of the original parish has the right of presentation to the new one. — Cunninghame v. Wardrobe, 6 P. 734 (1762); Aff. M. 9933. 10. The patronage of the city churches in Edinburgh belongs ex- clusively to the Town. Council, and an agreement that the kirk-sessions should have a vote, held reducible. — Walkers. Drummond, 6 P. 761 (1764) ; Aff. 1 1. General words of conveyance of patronages are capable of being interpreted by the usage following, and such conveyance and usage of the right form a good prescriptive title against the Crown. On an earldom being vested in the Crown by statute, and afterwards re-granted by the Crown, with all its rights and privileges, the grant carries par tronages formerly annexed to it. — Lord Advocate v. Lord Dundas, 5 W. & S. 723 (1831) ; Aff. 8 S. 755. 12. It is lawful for the patron, with consent of the incumbent, to appoint an assistant and successor to him — Luke v. Mags, of Edin., 6 W. & S. 241 (1832) ; Aff. 10 8. 307. 13. A presbytery is subject to the jurisdiction of the Court of Session in case of refusal to take on trial and proceed with the settlement of a presentee to a parish, and it is bound so to proceed, and the General Assembly has no power to make an act infringing the right of patron- age, by giving the communicants a right of veto. — Presbytery of AucUerarder v. Earl of Kinnoul, M'L. ^ R. 220 ; 6 CZ. ^ Fin. 646 (1839); Aff. 16 /S. 66L 14. The individud. members of presbytery who refuse to act in taking a presentee on trial, are liable in damages to the patron and presentee. — Ferguson v. Farl of Kinnoul, 1 S. Bell, 662 ; 9 CZ. ^ Fin. 251 (1842) ; Aff. 3 D. 778*. 15. The heritors and elders of a parish having, under the Act 1690, c. 23, paid to the patron the 600 merks fixed in it as the price of the patronage, but not received a conveyance tiU after the passing of the 10 An TIP, c. 12 ; held that the patronage, as conveyed to them, was to be exercised as an ordinary patronage, and not as under the former Act, and therefore to be exercised not at a meeting, but by deed of presentation subscribed by a majority — CuUen v. Sprot, 1 S. Bell, 595 (1842) ; Aff 3 D. 561. See Deed, 17 — Lifeeenter, 3. 254 PERSONAL CAPACITY. PAWNBEOKEE. It is illegal under the Pawnbrokers' Acts, that two parties should enter into a contract of partnership ia that trade with the proviso that the name of only one of them should appear, and the affixing of penalties to the offence does not operate as a license to commit it on payment of the penalties. Eeduction of the contract is not made incompetent by a clause it contaias for the reference of all disputes to arbitration. — Garden v. Howden, 4 S. Bell, 254; 12 01. 4r Fin. 237 (1845); Rev. 5 D. 698. See Action, 134. PEER 1. Question, Whether a peer of Scotland is entitled on a reference to oath, to depone on honour. — Earl of Breadalban-e v. Innes, Cr. ^ St. 181 (1736). See Trust, 2. 2. In absence of any patent, a peerage will be presumed to descend to heirs male, and the rule will not be altered by resignations and new charters of the family estate, in favour of heirs-general, these not specially referring to the title. — Kennedy v. Earl of Ruglen (Cassilis), 2 P. 55 (1762). 3. In a claim to a peerage, a party alleging himself to be entitled, though he has not presented a claim, may be heard in opposition, but not a party who makes no claim to the dignity, but only to estates which are also claimed as passing under the same limitation. When it appears that a dignity might have been granted by letters patent to a series of heirs not including heirs female, it is to be presumed that it was not granted to a series including heirs female. — Ker v. Innes {Roxlurgh), 5 P. 601 (1812). 4. A claimant of a peerage is not entitled to an exhibition to bim of the title deeds of the estate, which he does not claim, in order that he may take possession of the deeds relating to the peerage as his property. — Graufurd v. Gamplell, 2 W. ^ 8. 441 (1826) ; Rev. 2 S. 737. See Action, 70 — Aliment, 5 — Legitimation, 2 — Member of Parliament, 2 — ^Minor, 7. PEESONAL CAPACITY. 1 . Proof before answer allowed of fraud upon, and facility in the maker of a deed executed thirty years before action of reduction, on a special PERSONAL CAPACITY. 255 condescendance of particular instances being lodged. — Eoss v. Eoss, 6 P. 715 (1758) ; AS. Elch. Eraud, No. 9. 2. A son may reduce on the head of facility, a ratification hy his father of deed granted in prejudice of his (the father's) rights, under his parent's marriage-contract. — Dallas v. Dallas, 2 P. 91 (1765); Aif. 3. Evidence which was held not sufficient for the reduction of deeds from sixty to one hundred years old. — Ross v. Ross, 2 P. 393 (1776) ; 4. Deeds executed hy a man ahove ninety years of age, who had had a shock of palsy, which had in some degree affected his memory and speech, hut not sensibly his judgment, sustained. — Scott v. Jerdon, 3 P. 683 (1791) ; Aff. M. 4964. 5. WUl reduced on the groimd of weakness of mind of the testator, although it was not apparent to the witnesses to the execution. In- terrogatories in writing allowed to be put to the defender, in whose faTOUi the will was made. — Pringle v. Dove, 3 P. 521 (1796) ; Rev. 6. A lease reduced granted by a man of above eighty years of age, at a very inadequate rent, the commencement of the lease being only on the expiry of an existing lease which had stUl forty-four years to run, and obtained by a party having special influence, though entire incapacity in the grantor was not proved. — Sime v. Viscount Arhuth- not, 3 P. 613 (1797) ; Aff. 7. A deed signed in a different manner on each page by the grantor, held on evidence not to be liable to reduction on the ground of the age, intoxicated habits, and weakness of mind of the grantor ; a full price having been paid. — Duncan v. Ritchie, 4 P. 37 (1798) ) Aff. 8. Allegations that a testator had previously to the execution of the will been insane, and never after xecovered mental vigour, but remained in a state of imbecility, though not insane, and was then practised on and importuned to make the will, and was blind, and did not hear the will read over, nor understand its import ; held to be either irrelevant or too vague. — Thomson v. Tate, 5 P. 176 (1807) ; Aff. 9. The solicitor who prepared a will executed a few hours before death, and the testamentary witnesses, having proved that the testator was in full possession of his faculties, which was supported by the terms of the will and other circumstances, it was sustained, although the physicians in attendance had previously stated that they considered him unfit for business from loss of mental power, and although the testator mis-spelt his signature. (Per Lord Eldon) — Protection is due from the House to the character of the solicitor so situated. — Ker v. Wauchope, 5 P. 547 (1812) ; Aff. 10. Insanity either before, or after, the doing an act, or the exe- 256 PERSONAL CAPACITY. cution of a deed does not invalidate it, much less evidence of heredi- tary insanity, if the party was of competent mind at the time itself. — M'Adamv. Walker, 5 P. 673 ; 1 Dow, 148 (1813) ; Aff. M. Proof, Ap. No. 34. 11. Reduction of will on evidence of facility, and undue influence of testator's brother. — Ifo/ai v. Moffat, 6 P. 181 (1816) ; Aff. 12. It is no objection to a testamentary or other deed that it was executed by one who had been iasane, and contemplating the possibi- lity of the return of insanity, if he was of sufficient disponing mind at the time. Eeduction of deeds on ground of general insanity wUl hardly be admitted after the lapse of so much time that the witnesses able to speak to the special facts are dead. — Towart v. Sellars, 6 P. 301 j 5 Dow, 231 (1817); Rev. 13. On its being established that a party whose mortis causa deed is challenged was of weak mind, but of understanding and capacity suffi- cient to understand the deed, if duly explained to him, but that it was, in point of fact, not consistent with his intentions in one particular, he will be held quoad hoc, to have died intestate. — White v. Ballantyne, 6 P. 318 (1817) ; and 1 8. Ap. 472 (1823) ; Rev. 14. An agreement executed (in absence of his legal advisers) by a man of thirty years of age, and addicted to drinking, by which he dis- charged a debt of L.3000 heritably secured, in consideration of a bill for L.230, and an annuity at the rate of 7^ per cent, on the balance for his life, held reducible. — Jlf'iVeiZZ v. Moir, 2 S. Ap. 206 (1824); Aff 15. An heritable bond granted by a facile person in security of an alleged debt to his law agents, who did not produce their accounts or vouchers, and from whom he desired a further advance, held reducible. — Anderson v. Berry, 2 S. Ap. 212 (1824) ; Aff. 1 S. 66. 16. A party found generally, by verdict of a jury, to be of mind capable of disposing of his estate, may be also found not capable of judging correctly respecting a deed declared irrevocable, and in such case, the deed being found to be not the free and voluntary act of the granter, though not proved to be obtained by undue influence, wiU be reduced. — CHfeoK v. Fafaorj, 2 W. ^ S. 648 (1827) ; Aff. 4 S. 200. 17. A deed assigning to a daughter a property of L.3000, reserving only an annuity of L.40, executed without full understanding of it by a man eighty-three years of age, facile, drunken, and without taking other advice than the assignees, reduced at the instance of an assignee under a subsequent deed. — M'Diarmid v. M'Diarmids, 3 TT. ^ S. 37 ; 3 Bligh, N. S. 374 (1828) ; Aff. 4 S. 583. 18. Habits of intoxication, however constant, are not ground for reducing a deed, if it is proved that at the time of actual execution the POOE-KATES. 257 party was sober enough to understand it, and fraud was not alleged. — MaekaijY. Davidson, 5 W. ^ S. 210 (1831) ; Aff. 6 S. 367. See Action, 3 — Fbadd, 1, 2— Landlord and Tenant, 4 — Minor, 11 — Prescription, 16 — Kbduction, 4, 6, 10 — Trust, 1 — Will, 3. POOR 1. The Commissioners of Supply of the county, and magistrates of the burgh within the tolbooth of which a pauper crimiual has been ordered by the Court of Justiciajy to be confined, having petitioned the Court to permit his removal, as a dangerous lunatic, to an asylum, which was granted, the Commissioners of Supply are liable in his maintenance there, and have no relief either against his parish of settle- ment, or the burgh, or the Crown. — Off. of State v. Comrs. of Supply for Wigton, 4 W. & S. 43 (1830) ; Eev. 5 S. 767. 2. The poor-law of Scotland gives a title to relief to the " aged poor and impotent ;" held that this does not apply to able-bodied persons out of work, nor to their children living with them. — M'William v. Adams, 1 M'Q. 120 ; 1 Stu. 668 (1852) ; Aff. 11 D. 719. Lindsay?;. M'Tear, 1 M'Q. 155; 1 Stu. 668 (1852); Aff. 11 D. 719. 3. The parish of settlement of the father, however acquired, is the settlement of his legitimate children, without regard to the place of their birth. — Adamsonw. Barbour, 1 M'Q. 376; 2 Stu. H. L. 86 (1853); Eev. 13 D. 1279. POOREATES. 1. Held that the members of the College of Justice were exempt from poor-rates in Edinburgh. — Mags, of Edinburgh v. College of Justice, 3 P. 155 (1790); Aff. M. 2418. 2. When a parish is partly burghal and partly landward, there is no distinction between the two parts as regards the liability of the heritors to maintain the poor of the whole. — Mags. v. Heritors of Dunbar, 1 S. & M'L. 134 ; 3 CI. & Fin. 335 (1835) ; Eev. 11 S. 879. 3. Land being by statute included within the royalty of a burgh, and subjected to its assessments, without being disjoined from the parish to which it formerly belonged, the poor-rates are no longer leviable upon it for the original parish, either directly or as a rider on the claim, of the bnrgh, but are solely leviable by and applicable to the burgh. — ilf'Cmw v. CuningJiam, 2 8-4 M'L. 773 (1837) ; Alt 258 PKESBTTEEY. 4. Lands disjoined from a parish by 39 and 40 Geo. III., c. 88, and annexed to a burgli, held not liahle in poor-rates to the original parish. — jS?wm£? v. Burns, M'L. ^ R. 435 (1839); Bbv. 15 S. 936. 5. The poor-rate is a parochial huiden ; and when a statute directs it shall be levied on lands, it is leviable also on the houses afterwards bunt on the \&-aAs. — Allan \.M' Craw, 2 RoUn. 507 (1841); Aff. 1 D. 513. 6. Lands disjoined by Act of Parliament from South Leith, and annexed to the parish of Edinburgh, but still left Uable to parochial burdens in South Leith, held nevertheless liable to poor-rate only of Edinburgh. — South Leith «>. Allan, 1 M'Q. 93; 1 Stu. 651 (1852); Aff. 11 D. 1391. 7. Although the terms of the poor-law as regards the rating of " owners" would apply to the manses and glebes of clergymen, yet as these had been formerly understood to be exempt, and the Act con- tained an express clause rendering clergymen liable to be rated in respect of their stipends, held that they were stDl exempt' as regards manse and glebe. — GibsonY. Forbes, 1 If'Q. 106 ; 1 Stu. 890 (1852) ; Aff. 13 D. 341. See Parish, 26. 8. The parties receiving harbour dues ought to be rated, if liable at all, and not the dues themselves, and the rate ought only to be in respect of so much of the harbour as is actually within the parish. — I^ith Harbour Comrs. v. North Leith, 2 M'Q. 28 (1855) ; Bev. 15 D. 95. 9. A water company is liable to be rated as owner of the land oc- cupied by the water pipes. — Edinburgh Water Go. v. Hay, 1 M'Q. 682 (1853) ; Aff. 12 D. 1240. 10. Stations are to be considered, in rating to the poor, as part of the railway, and not rated specially in the parish in which they happen to be. — AdarnsonY. Edin. and Glasgow By. Co., 2 M'Q. 331 (1855); Aff. 15 D. 537. See BuEGH, 20 — Parish. PRESBYTEEY. 1. The presence of parties, afterwards found to be disqualified, in a chiirch court, does not avoid its acts. — Livingstone v. Proudfoot, 6 S. Bell, 469 (1849) ; Aff. 8 D. 898. 2. The mintites of a Presbytery are valid, although not signed at the time of the meeting. — Fergusson v. Skirving, 1 M'Q. 232 ; 1 Stu. 824 (1851) ; Aff. 12 D. 1145. See Action, 2 — Court of Session, 4 — ^Damages, 19 — Dissenters, 1 — Parish — -Patronage, 1, 13, 14 — Teinds, 9. Mgative.] PEESCRIPTION. 259 PEESCEIPTION. I. Triennial, .... p. 259 II. VlOBKNIAL, 259 III. Negative, . . . . 259 See also Bills of Exchange — Cautioner — Foreign (Actions). IV. Positive, .... p. 260 V. iNTBRRtrPTION, . . . 261 I. Triennial. 1. Tlie triennial prescription is not iaterrupted by fumisliings to the debtor's funeral. The executors are entitled to be relieved by the heir, after exhaustion of the personal estate, of the funeral charges (amount- iag ia the case to L.421 for the funeral of a Lord of Session) without modification, and also of the costs of an action against the heir relative to the right of confirmation. — Cockbumw. Hamilton, Eobert. 32 (1 712) ; Eev. M. 4981 and 10343. 2. This prescription does not bar actions for aliment of minors. — Davidsons. Watson, Cr. & St. 288 (1740) ; Eev. M. 11077. 3. The triennial prescription applies to servants' wages. Question, Whether it would apply to money due on sales of cattle extending over a series of years t Although prescription may not apply, a long delay during which there are other dealings raises a presumption of pay- ment. — Macdougallv. Campbell, IW. ^ S. 19 (1833) ; Aff. 8 S. 959. See Teust, 53. II. Vicennial. 4. In a reduction of an adjudication it is not necessary, after twenty years, to produce the general and special charges on which it proceeded. — Irvine «. Earl of Aberdeen, 2 P. 419 (1777); AS. M. Ap. Tailzie No. 1. 5. The vicennial prescription under the Act 1617, c. 13, applies to retours under a general service, whether feudal possession follows on them or not. — Neilson v. Cochrane, 1 Eobia. 82 (1840) ; Aff. 15 S. 365. See Trust, 52. III. Negative. 6. The negative prescription does not commence to run in favour of a trustee from the date of an assignation to him, but from the date of the payment of the money assigned. — Gregory v. Grazier, Eobert. 178 (1716) J Aff. 1716. 7. A right to lands is not lost by negative prescription for forty years, as against a party possessing without title. — Mags, of Perth v. Presb. of Perth, Or. & St. 39 (1730) ; Aff. M. 10723. 8. A debt on a bond above one hundred and fifty years old, on r2 260 PRESCRIPTION. [Podtive. which adjudication had heen taken just before the expiry of the first forty years, which twenty-five years after was called for ia a reduction by another adjudger in possession of the estate, and being produced was exempted from reduction, which two years after was made the subject of an incompleted submission, and thirty-nine years afterwards was sued on, no demand or payment of interest having been made in the interim ; held extinguished by prescription. — Lord Advocate v. Hay, 2 P. 266 (1758); Eev. M. 11276. See 18. 9. The benefit of a clause of return, or of a clause of substitution with prohibition to alter, may be lost by the negative or positive pre- scription. — Duke of Hamilton v. Douglas, 2 P. 449 (1779); AS. M. 4358. 10. Prescription runs against the beneficiary under a trust-deed from the moment when he has a right to sue to restrain a breach of the trust, although he abstains tiU the death of the party committing it, because during his life the trustee could have, if challenged, effected the same result by legal means. — Pollock v. Loekhart, 2 P. 495 (1779); Aff. M. 10702. 11. A purchaser in a ranking and sale having granted bonds for the price payable to the creditors to be found to have right thereto in the decreet of ranking, but the process having fallen asleep before such decreet for more than forty years, the bonds are prescribed, and the Court win not order steps to be taken in the ranking at the instance of a creditor not proving nan valentia agere if such steps would be invalid so far as the bonds are concerned. — Dickson v. Brander, 1 S. Bell, 167(1842); Aff. See Bill of Exchange, 2 — Entail, 25, 44 — Pabtnebship, 33 — Personal Capacity, 1, 3 — Peopeett, 28 — Supeeioe and Vassal, 17— Way, 3, 7. IV. Positive. 12. Question, Wliether minorities of the opposing claimant are to be deducted in computing the positive prescription, and whether pos- session by a Hferenter can be reckoned in the course of prescription, and whether the period of gestation in the case of a posthumous child is to be included ? — Campbell w. Campbell, 2 P. 193 (1770); Eev. 5 Br. Sup. 915. See 24. 13. Infeftment in fee-simple for forty years in the lands, though originally effective only as regards the superiority, yet, when coupled with possession of the lands on apparency, gives a title by the positive prescription to the lands themselves, and works off the fetters of an entail under which the same party had right. — Bruce v. Bruce, 2 P. 258 (1772) ; Aff. M. 10805. Interruption.] PRESCRIPTION. 261 14. An absolute disposition for good consideration is not prevented from being the ground of positive prescription by the fact that a wadset of the same lands to the same party had been granted eight days before, with obligation to grant letters of reversion, but which remained unrecorded. — Sutherland u. Countess of Sutherland, 2 P. 415 (1777) ; Eev. 15. A disposition a me vel de me, on which base infeftment only is taken, and the titles on which are afterwards made up holding base of a subsequent disponee of the original granter, is by acknowledgment and prescription for forty years reduced to a holding de ms only. Prescription on the warrandice begins to run from the date of the dis- position of the superiority, by which a public entry is made impossible. — Gardner v. Scott, 2 S. BeU, 129 (1843) ; Eev. 2 D. 185. 16. Possession on charter and sasine for forty years does not exclude reduction of the conveyance on which it proceeded on the groimd of fraud practised on a party of weak mind. — Hume v. Duncan, 5 W. & S. 43 (1831) ; Aff. 7 S. 467. 17. Possession of a barony under Crown charter for more than forty years, held to confer a good title to exclude against a party claiming the superiority of certain lands within the barony. — Macdonald v. Lockhart, 2 Stu. H. L. 104 (1853) ; AS. See Heirs, 15. See Coal, 5 — Deed, 25 — ^Entail, 111 — Paeish, 10, 14 — Property — Servitude — ^Way, 3, 4, 5. V. Interruption. 18. Adjudication on a bond kept alive by lodging a claim on it before the Commissioners for forfeited estates, on the debtor being at- tainted, and by registration of the claim, together with recognition of another debt included in the same adjudication. — Lord Advocate v. Hay, 2 P. 272 (1758); Aff. 19. The minority of a proprietor cannot be founded on to interrupt prescription where his only title was a conveyance to him by his father on the allegation he was going abroad, which is not proved ever to have been delivered. — Eoss v. Mackenzie, 3 P. 676 (1776); Aff. 20. A party cannot plead the negative prescription against his obli- gation to grant a discharge where the bonds which he was bound to discharge are themselves prescribed. — Wauchopev. York Bgs. Go., 2 P. 595 (1781); Aff. M. 10706. 21. An action of count and reckoning by a subsequent against a prior adjudger, who is in possession in virtue of the adjudication and charter and sasine, does not interrupt the running of the positive pre- scription so as to allow a reduction of the adjudication after forty years' 262 PRINCIPAL AND AGENT. [Ldobility of Principal. possession, except upon such grounds as were stated in the count and reckoning. : — Boss v. Mackenzie, 3 P. 676.(1776) ; Aif. 22. Prescription is not interrupted by possession being violently pierented. — Sinclair r. Earl of Breadalbane, 6 P. 728 (1759); Aff. 23. The fact of being impressed into the Eoyal Navy during minority, and thereafter serving continuously in it, does not prevent the prescription, positive or negative, from running. — Graham v. Watt, 5 S. Bell, 172 (1846); Aff. 24. Prescription in Scotland (differing from the rule in England) is interrupted by a supervening minority. — Baird v. Fortune, 4 M'Q. 127 (1861); Rev. 21 D. 848. See 19. See 1, 8, 12 — Bankruptcy, 73 — Debt, 10 — Paetnebship, 38 — Way, 3, 5, 7. PEINCIPAL AND AGENT. I. Liability op Principal to AoBNT, p. 262 II. Liability of Agent to Principal, 263 III. Authority to bind Prin- cipal, p. 264 I. Liability op Principal to Agent. 1. Bonds being sent to an agent in London to be by him uplifted and the proceeds invested, together with any sums the bearer might advance for himself, the bearer is not entitled to make an investment of the proceeds by himseK on the death of the agent ; and the bearer having declared to the agent's son that the acceptance of the invest- ment should be in the option of the principal, and the principal having declined' to accept, without mora, he is not bound. — Rigge v. Aher- crombie, Robert. 438 (1723); Aff. 2. Goods purchased by a factor at a foreign port lie at the risk of the principal, though the order being only partly fulfilled the factor had not advised the purchase. — Sturrock v. Porter, 3 P. 45 (1785) ; Aff. 3. Army agents having, on the representation of the paymaster that he had authority, charged the Colonel of the regiment with certain furnishiags, and sued him thereon, are entitled, on the want of autho- rity being established, to sue the Paymaster both for the sum and for the costs of the action against the Colonel. — McDonald v. Ross, 2 Bligh, 547 (1820) ; Aff. 4. A commission-agent, purchasing under a special agreement as broker, is not entitled to retain the goods for the amount of advances Liability of Agent!] PRINCIPAL AND AGENT. 263 previously made on other goods which he had purchased as factor, and on sale of the goods retained after the priacipal's bankruptcy he must consign the whole price, though other creditors had meantime drawn a dividend beyond what the broker has done. — M'Call v. Black, 2 S. Ap. 188 (1824); Aff. 5. Agents chartering ships in their own- names are entitled to be relieved by their principals of damages arisiag through failure of their principals to pay the stipulated freight. — M'Braire v. Hamiltorts, 2 W. 4- S. 66 (1826) ; Aff. 4 S. 24. 6. After a lapse of twenty years, during which the parties were in frequent communication, without any question as to accounts of a busi- ness in which one had previously employed the other as agent, though these accounts had not been formally settled, the Court refused to allow any question of accounting to be gone into beyond what appeared on the face of the disputed accounts. ■ — Rose v. M'Leay, 2 S. ^ M'L. 958 (1837) ; Aff. 12 S. 631. II. Liability of Agent to Principal. 7. A factor who has advised his constituent of the purchase of goods on his behalf and with his funds, chargiag commission on the purchase, is not allowed afterwards to allege that the goods were not, at the time, purchased nor paid for, from the funds not having been realised at the date of the advice, but were afterwards purchased at a higher rate, un- less he could prove by the principal's oath that he was cognisant of the arrangement. — Tliam v. Sheriff, Robert. 534 (1725); Aff. M. 10092. 8. A factor who takes bills instead of money for a debt due to his constituent, without notice to him, renders himself personally liable for the amount, — Ainslie v. Arbuthnot, 1 Cr. ^ St. 340 (1743) ; Rev. M. 4065. 9. The charging of a del credere commission by a factor, though not stipulated for by the principal, renders him liable to guarantee pay- ment, and if he takes a biU. for the price he is held to guarantee its payment when due. — Mackenzie v. Scott, 3 P. 525 ; 6 Br. P. G. 280 (1796) j Aff. M. 10101. 10. A power of attorney being sent by executors to parties in Jamaica to wind up the affairs of a testator's estate there, and the attorneys having remitted bills for part of the amount to their own correspon- dents in this country, with instructions to hand them to the executors on receiving an indemnity against future claims, the correspondents are not entitled to withhold the bills to meet alleged deficiencies subse- quently discovered in Jamaica. — Bogle v. Anderson, 4 P. 249 (1801) ; Aff. See Bills of Exchange, 17. 264 PRINCIPAL AUD AGENT. [Authority of Agent. 11. An agent selling goods, and guaranteeing the purchaser's bill for the amount, -is not entitled to withhold delivery on the purchaser be- coming bankrupt, and arranging with the creditors by payment of a composition, and thus making the agent liable for the balance of the price. — Stirling v. Duncan, 1 S. Ap. 389 (1823) ; Rev. 12. An agreement between the owner of goods and a merchant that the latter should sell them at a foreign port by his agent on the owner's account, guaranteeing the agent, and receiving 4 per cent, on the amount of sales for commission and guarantee, is a raere del credere obligation on the merchant, and does not make him liable for loss through the agent's breach of his instructions, and the evidence of merchants is not admissible to prove that the written agreement imports anything farther. — Galder v. Aitchison, b W. ^ S. 410 (1831) ; Aff. 9 S. 777. 13. An agent is liable for a sub-agent, though the principal knows that a sub-agent will be employed. — Mackersy v. Bamsay, 2 S. Bell, 30; 9 CI. ^ Fin. 818 (1843); Bev. 2 D. 1003. See Catjtioneb, 11. III. Authority of Agent. 14. A special power to a factor to grant a particular lease, on which possession is given to the lessee, is not superseded or revoked by a sub- sequent power to another factor, granted before the lease is executed, to raise money by lease, mortgage, assignment, or other disposition. — Patten v. Carruthers, 2 P. 238 (1770) ; Bev. 15. A merchant abroad, for whom goods are purchased by a com- mission-agent in this country, is not liable to the sellers for the price, although the agent had bought them in his principal's name as well as his own, but in doing so had departed from the terms of the agreement and exceeded his authority. — Wilkie v. Greig, 4 P- 265 (1801) ; Bev. 16. A foreign merchant is liable for goods purchased by his factor in this country when it appears by his order, shown to the sellers, that they were purchased on his account in joint adventure with the factor. — Wilkiey. Johmton, 5 P. 191 (1808) ; Aff. 17. "When a bank agent also does business as banker on his own account, receipts signed not as agent, and merely dated " bank office," do not bind the bank. — Bank of Scotland v. Watson, 5 P. 655 ; 1 Dow, 40 (1813) ; Bev. F. G. I5th May 1806. 18. BiUs drawn, endorsed, and discounted by an agent in his own name only, though really for goods supplied by his principal, do not infer liability against the principal on the bankruptcy of the agent. — James v. Telford, 2 S. Ap. 219 (1824) ; Bev. 1 S. 290. 19. The agent, as factor for a party abroad, may act for him after his Parts and Pertinents.} PEOPEETY. 265 death, but prior to receipt of credible intelligence of that event. — Campbell v. Anderson, 3 W. ^ S. 384 ; 4 Bligh, N. S. 513 (1829) ; Aff. 20. Third parties are not bound by a latent contract which would have converted a party they dealt with as agent merely into the actual principal. —l/'P7taav. Glennie, 3 W. ^ S. 389 (1829) ; Aff. 3 S. 574. 21. A debtor having authorised a person to receive a fund due to him, and out of the proceeds to pay the debt, the agent having accepted that order is bound to pay the debt out of the fund, although the debtor's bankruptcy supervenes within sixty days. — Macintosh v. Brierly, 5 S. Bell, 1 (1846) ; Aff. 5 D. 1100. S'ee Assignation, 7, 10 — Evidence, 16 — Paetnbeship, 50 — Patron- age, 6 — Eanking AND Sale, 1 — Shipping, 2, 5, 6, 8, 11 — Supbriob AND Vassal, 6 — Tbust, 33. PEOPEETY. I. Parts and Pertinents, p. 265 II. Boundaries, .... 266 III. Roads and Water, . . 267 IV. Sba-shobb, .... p. 268 V. Perries and Harbours, 268 I. Parts and Pertinents. 1. The property in rocks in the sea claimed as part and pertinent by proprietors of opposite islands is to be determined by proof of usage in pasturing, gathering kelp, and the exercise of such other rights of pro- perty as may be practicable. — Lord Maedonald v. M'Leod, 2 P. 583 (1781) ; 4/. 2. Infeftment in lands, with parts, pendicles, and pertinents, together with customary possession of the teinds, forms a good title to the teinds. — Morehead v. Edmonstone, 3 P. 199 (1791); AiF. - 3. The tenant of two farms belonging to the same landlord purchased one, with parts and pertinents as presently possessed by him ; held that he had no title to prove a servitude of taking sea-ware from the shores of the other, either in virtue of his own practice while tenant of both, or of immemorial practice in the farms of the original estate. — Maedonald v. Maedonald, 4 P. 237 (1801) ; Aff. See Servitude, 10. 4. A bounding charter having a clause of parts and pertinents will support a prescriptive title to lands beyond the bounds. — Watt v. Paterson, 2 Dow, 25 (1813); Aff. 5. Land held to be included in the titles as explained by possession. — Duff V. Mags, of Inverness, 5 P. 762 (1813) ; Aff. .6. A grant of mussel scalps by the Crown, supported by possession, sustained. — Grant v. Brodie, 6 P. 779 (1769) ; Aff. 266 PROPERTY. [Boundaries. 7. The presumption of property arising from possession rebutted by evidence of agency brought to light in the judicial examination of the possessor who claLmed the property. — Turner v. Gibb, i W. ^ S. 154 (1830); Aff. 8. A disposition of an inland part of a barony, with parts and perti- nents, does not carry right to a part of the sea-ware on the shore, and the want of grant cannot be supplemented by usage of the tenants, unless amounting to prescriptive possession. — Baird v. Fortune, i M'Q. 127(1861); Eev. 21 D. 848. ' 9. Immemorial possession of grazing ground iinder a clause of parts and pertinents, with a possessory judgment of the Sheriff overrides an express conveyance of the lands in an ancient charter, which had con- tinued to be engrossed in the titles of the opposing claimant. — Mackenzie v. Mackenzie, 6 P. 376 (1818) ; Aff. See Heirs, 15. See Servitude. n. BOUNDABIES. 10. The natural marches on bill grounds may be considered in deter- mining a disputed question of boundary. — Whitson v. Eamsay, 5 P. 664 (1813) ; Aff. 11. Eemit to consider the evidence of boundaries, and whether the parties had not by mutual possession rendered the ground common. — Observed by Lord Eedesdale that in case of Highland properties the possession of sheaJings is probably the strongest evidence of the right, and that buried charcoal is of little importance. — L W. ^ S. 170 (1831). 5. Unless a statute provides expressly, or by plain implication, that an instrument shall be invalid unless its provisions are complied with, it is directory merely, and there is no nullity or invalidity consequent on its breach. (Per Lord Brougham.) — Maxwell v. Stevenson, 5 W. # S. 276 (1831). 6. Usage cannot alter the terms of a statute, if clear, but if the usage is contemporary and uniform it may raise up a certain construc- tion of the statute, even though somewhat forced, and when proof of usage is carried back for a century, and there is no proof of prior contrary usage, it amounts to contemporary usage. (Per Lord Brougham.) — Mags. Y. Heritors of Dunbar, 1 & ^ M'L. 134 ; S CI. ^ Fin. 335 (1835). 7. The inconvenience of a particular interpretation being great is a proper reason for adopting an interpretation, justified by the words, which would avoid that inconvenience. — Misk v. Muir, 5 S. Bell, 14 (1846) ; Aff. 6 D. 677. 8. Observed that the schedtde of a statute is sometimes part of the statute and sometimes not, and when giving a form, the place and date need not be inserted exactly in the place prescribed in the schedule. — Gleland v. Clason, 7 S. Bell, 153 (1850) ; Aff. 11 D. 601. 9. A declaration of the illegality of a process in a certain locality implies its legality elsewhere. It is otherwise if the statute merely affixes a penalty to an act. — Duke of Roxburgh v. Ramsay, 1 S. Bell, 248 (1850) ; Aff. 10 D. 661. 10. A statute saving a prior statute, and an agreement on which it was founded, does not save or give validity to a condition contained in the agreement, but not included in the subsequent statute. — Edinburgh and Glasgow Ry. Co. v. Stirling and Dunfermline Ry. Co., 2 Stu. H. L. 91 (1853) ; Aff. 11. "When a statute is unambiguous in the enacting part, recourse cannot be had to the preamble to create an ambiguity. — Murray v. Grant, 1 M'a 178 ; 1 Stu. 1069 (1852) ; Aff. 12 D. 201. See Salmon Fishing, 31. 12. Observed that Courts will be slow to attribute a retrospective eifect to a statute, if not clearly expressed. (Per Lord Cranworth.) — UrquhartY. Urquhart, 1 M'Q. 658 (1853). 13. The Legislature, in passing an Act for Scotland, must be supposed u 306 STATUTE. [Fenal Statutes. to have used language in the sense which it has acquired through judicial decisions in pari materia in England. — Edivhurgh Water Go. V. Haxj, 1 M'Q. 682 (1853) ; Aff. 12 D. 1240. 14. When a statute applies to hoth England and Scotland, the language must he taken in its popular sense, and not in the technical sense of either country. (Per Lord Camphell.) — Lord Saltoun v. Advocate-General, 3 M'Q. 659 (1860) ; Reo. See 20 — Heir and Exbcutoe, 7 — Justices' op Peace, 1 — ^Poor-rates, 5, 7— Public Works, 6, 10, 12— Trust, 33. II. Penal Statutes.- 15. The Stat. 1 Geo. I. c. 42, enacted that if the several persons therein named should not surrender themselves to one of TTis Majesty's Justices of the Peace on or before 30th June 1716, they should from 13th Ifovemher 1715 stand attainted, and the justice to whom any one surrendered was required to commit him to prison, and give notice thereof to the Secretary of State. Held that a surrender on 23d April 1716 to three persons acting as justices of the peace in furnishing pro- visions to the royal troops, under orders directed to them as such hy the officers in command, which surrender was certified by the extras judicial declarations of the said justices, was sufficient compliance with the statute, although the justices appear not to have held a commission as such, nor reported the surrender to the Secretary of State, and though it was alleged for the Crown that the party had not surrendered, but been captured in arms, and this allegation was supported by the evi- dence of his captors. — Gomrs. of Forf. Estates v. Mackenzie (not re- ported), Lords' Journals, \^th Jan. 1720 ; and the Appeal Gases. 16. Under the above statute, held that a party was not relieved from the penalty by intimation before the day to the officer in command of the forces in the neighbourhood (and also a justice of the peace), that he had ordered a surrender of the arms of his men, and would personally render himself without any delay, the fact being that he never did render himself — it was alleged through illness — and died within two years. — Gomrs. of Forf. Estates v. Macdonald, Robert. 307 (1720) ; Bev. 17. The attainder by statute of "Major-General Thomas Gordon, Laird of AuchintouU," did not apply to Major-General Alexander Gordon, the real Laird of AuchintouU. Ee£ to opinion of English Judges. — Gomrs. of Forf. Estates v. Gordon, Robert. 278 ; 8 Br. P. G. 254 (1 P. Will, 612) (1720); Aff. So the attainder of -Alexander " Farquharson of Inveray," did not apply to Patrick Earquharson of Inveray. — Gomrs. of Forf. Estates y. Farquharson, Robert. 340 (1721) ; Aff. But the attainder of " Wakinshaw of Scotstoun,'' was a suffi- Special Clauses.} STATUTE. 307 ciently accurate designation of Walkinsliaw, who had succeeded to hut was not infeft in Scotstoun. — Walkinshaw v. Lord Advocate, Cr. ^ St. 197 (1737); Aff. M. 4723. 18. The title of Lord PitsHgo having been in frequent use in the family, although the letters patent conferred it under the style of Lord Porhes of PitsHgo, the former was a sufficient designation in an Act of attainder. ■ — Lord Advocate v. Lord PitsHgo, Cr. ^ St. 482 ; 8 Br. P. C. 257 (1751) ; Rev. Elchies v. Forfeiture, Nos. 9 and 10. 19. The Stat. 19 Geo. II. c. 26, declared that the person named not surrendering himself before 12th July, should be held attainted from 18th April preceding. This provision did not render such party incapable of taking lands of which the descent opened to him in the interval, although on his not surrendering they became forfeited as from 18th April. — Drummond v. Lord Advocate, Cr. ^ St. 503 (1751); Aff. M. 4875. 20. The penalties for usury introduced in Scotland by the Stat. 12 Anne, c. 16, were affected by the Hmitation of actions for penalties under that statute then existing in England. — - Walker v. Allan, 4 P. 303 (1802), and 2 Dow, 254 (1814) ; Bern. M. Usury, Ap. No. 1. 21. An action for restitution of penalties and losses incurred through seizure by an oflScer of Excise, sustained in the Court of Session, on the ground that the penalties were imposed, by the order of the justices, not on individuals but on a firm, and other reasons. Question, Whether the statute under which the seizure was made, being for pre- venting the trade of currier and tanner being carried on by the same person, was a revenue statute, or one for regulation of trade. — Campbell v. Anderson, 5 Dow, 412 (1817); Aff. F. G. 28th Feb, 181L 22. A statute creating an offence having declared that a party con- victed by a justice of the peace " shall or may" appeal to Quarter Sessions, and that no such proceeding shaU be removed into the Court of Session, an appeal to the Court of Session instead of to Quarter Sessions is incompetent. — Craigie v. Mill, 2 W. ^ S. 642 (1827) ; Aff. 4 S. 447. See Action, 27 — Fobpeitube — Membbe of Paeliament, 3 — Pawn- BEOKEE. III. SpbciaIi Clauses. 23. A statute (28 Geo. II. c. 29) having given to the city of Glasgow a duty on aU beer brewed, inbrought, vended, tapped, and sold within the city, the brewing immediately beyond its limits, and making an agreement with a party within it to sell the beer so brewed to the customers of the brewery, is an evasion of the statute, and subjects the u2 308 STATUTE. [Special Clauses. beer to the duty as much as if hrewed in the city. — Mags, of Glasgow V. Murdoch, 2 P. 615 (1783) j Eev. 24. The 26 Geo. III. c. 81, gave a bounty to decked vessels clearing out of a port, and proceeding iipon the fishery and continuing to fish for three months. Held that it did not apply to a decked vessel clear- ing out of a port, hut then remaining at anchor, while the crew carried on the fishing in boats, without making any use of the decked vessel. Opinion of English Judges. —Edgar v. Miller, 3 P. 575 ; 6 Br. P. C. 530(1797); Rev. 25. The Statute 33 Geo. III. c. 61, enacted that for every day during which any licensed still should be used in making spirits fcom British materials, the owner should recover an abatement or allowance of two- tenths on every cubical gallon of the contents of the stiU. Held that such abatement was not due in respect of any working of the stiU on Sundays. Question, Whether an abatement can be construed so as to amount to a larger sum than the duty, so as to be iu fact a bounty. — Easton v. Brown, 4 P. 39 (1798) ; Aff. 26. The local militia of the city of Edinburgh having volunteered to extend their service out of their county, under 54 Geo. III. c. 19, and in consequence served for forty-two days at Musselburgh, the men are entitled to the privileges of freemen iu towns, as having been in actual service under 52 Geo. III. c. 68, § 179. — Glass v. Hunter, 1 S. Ap. 128 (1822) ; Aff. 27. Under a series of charters and statutes, lead ore exempted from duty under certain statutes, and found liable under others. — Lord Advocate v. Earl of Hopetoun (and Duke of Buccleuch), 2 W. & S. 644 (1827) ; Aff. 28. A clause in a police act authorisiug the commissioners to remove buildings inoroaching upon or obstructing the lines of streets, does not authorise the removal of buildings not extending beyond the hne of fronts, merely for the purpose of widening a narrow street. — Newall V. Comrs. of Police of Dumfries, 4 TF. ^ yS. 137 (1830) ; Bev. 6 S. 884. 29. The Statute 5 Geo. IV. c. 74, which directs imperial measures, or local measures reduced to imperial, alone to be used, applies only to contracts respecting goods, and does not apply to the grain rent re- served iu a lease. — Henry v. M'Ewan, 7 W. ^ 8. 411 (1834); Aff. 10 S. 572. 30. The keeping open a barber's shop on Sunday morning is not an act of necessity or mercy, and therefore is illegal under the Acts 1579, c. 70, and 1690, c. 21. An apprentice's indenture binding him to work on Sundays is void to that extent. — Phillips v. Innes, 2 S. & M'L. 465 ; 4 CI. & Fin. 234 (1837) ; Eev. 13 S. 778. See Poor-rates, 3, 4, 5, 6. SUCCESSION IN MOVEABLES. 309 SUCCESSION AND LEGACY DUTIES. 1. A Britisli-bom subject dying domiciled in a colony, where his will was made, had debts owing to him in England ; these were collected by his executors, who out of the proceeds paid legacies in England. Held that such legacies were not liable to legacy duty, which attaches only to legacies paid out of funds belonging to one domiciled in Britain. Observed that probate duty is due on wills proved in England, irre- spective of the testator's domicile. English Judges consulted. — Thom- sons. Advocate-General, 4 S. Bell, 1 ; 12 CI. # Fin. 1 (1845) ; Rev. 3 D. 1309. 2. An assignation by five sisters of their whole property to them- selves jointly, BJid the survivors and last survivor, and the heirs of the survivor, without power of revocation, is a gift in conjunct liferent, with the fee to the survivor, and is an onerous and not a mortis causa deed, and the property is not subject to legacy duty on the death of one of the sisters. — Brown v. Lord Advocate, 1 M'Q. 79; 1 8tu. 1024 (1852) ; Rev. /See Hbeitable and Moveable, 14, 17, 18. Succession in Hbbitage. — See Heirs. SUCCESSION IN MOVEABLES. 1. Domicile regulates the succession to the personal estate wherever situated. — Bruce v. Bruce, 3 P. 163 (1790) ; Alt M. 4617. Hog. v Lashley, 3 P. 247 (1792); Aff. M. 8193. 2. A contract being made between nearest of kin in Scotland before the death of a lunatic relative, providing that, in the event of the pre- decease of any of them, their children should take their respective share ; held that the words being general, the contract applied on the lunatic being found to have been domiciled in England, so that the personal estate passed by the law of England. — Graham v. Weir, 4 P. 548 (1804) ; Aff. 3. A claim for a share of the father's personal estate by one of several children is not excluded or affected by an advance made to the child during life, in the shape of a disposition of a small piece of land, other advances in money having been made to the other children, nor by the father having, on the bankruptcy of the child, paid on his behalf a com- position to his creditors, receiving in return an assignation to the bank- rupt's estate, and discharging his own claims against the child on the footing of the same composition. — Eae v. Newal, 5 P. 127 (1806) ; Aff. See Conquest, 1 — Executry — Husband and Wife, 60 — Lbgitim. 310 SUPEEIOR AND VASSAL. [General Rights. SUPEEIOE AND VASSAL. I. GrENBRAi ElOHTS, . . p. 310 I III. CASUALTIES, .... p. 313 II. Feu-Duties and Conditions, 31 1 | I. General Eights. 1. Under a succession of statutes certain lands, originally annexed to the Crown, had been exceptionally granted and confirmed to a suhject. Held that his title was unimpeachable, at least at the instance of a vassal of his own, whose authors had acknowledged him and his pre- decessors for nearly a hundred years as their immediate superiors. — Heriot's Hospital©. Hepburn, Eobert. 118 (1715); Eer. M. 7986. 2. A corporation cannot claim to be entered as an appriser, under the Act 1649, c. 36, but only to have such proper person entered as they may nominate, and till then must account for the rents as in non-entry. Costs in Court of Session and H. of L. given against the respondent on reversal. — Hamilton «. University of Glasgow, Eobert. 172 (1716); Eev. M. 9296. See 31. 3. A charter from the Crown, declaring that the lands granted, for- merly held of an abbey, should be held of it in the same manner as annexed kirk lands, does not prevent the Crown from granting the supe- riority to another party. — Coltart v. Maxwell, 2 P. 482 (1779) ; AfF. 4. Damages beiag claimed from the heirs of a superior, and of his agent, for granting a precept of clare after the superiority had been sold, whereby a bad title was made up, and it was afterwards reduced, the object of taking the precept by the vassal being to defeat an entail, to which the defences were pleaded that such object laid the party open to the objection of versans in illicito, and that a penal action did not transmit against heirs. The defences were sustained. — Syme v. Erskine, 4 P. 510 (1803); Aff. M. Superior and Vassal, Ap. JSTo. 3. See Fraud, 6. 5. A lease of lands for bleaching works beiag granted, with privilege of taking in water from a river by a canal, &c., and the lessees having subsequently entered into an agreement for a feu of the lands, " with aU the rights, privileges, &c., thereto belonging ;" held that they were not entitled to insist on the feu-charter containing an express grant of the water privilege, it being included in the general words, if the heritor could competentlygrant it. — PatoriY.Brebner, 1 Bligh, 4:2 (1819); Mev. 6. Charters granted by a common agent, as in implelnent of a prior contract, and containing a feu-right of grazing, reduced as regards such right, on evidence that the contract was only for a lease of the grazings. — Bayne«. CampbeU, 6 P. 104 (1815); Aff. 7. A superior who has included two separate feus in one charter is Feu-Duties, ^c] SUPERIOR AND VASSAL. 311 not barred from afterwards seUing the superiorities to different indivi- duals.— Duke of ArgyUw. Lamont, 6 P. 410 (1819); Eev. F. C. 23d June 1813. . 8. Lands originally belonging to New Abbey being granted to a sub- ject, and resumed on the establisbment of Episcopacy, but by Act 1695 excepted from the annexation clause of the Act 1690, and several times regranted by Crown charter to the heirs of the original grantee, held to be vested in him, but a vassal held not to be liable in non-entry duties, except from the commencement of the action. — Spottiswoode v. Bur- nett, 6 P. 747 (1763) ; Eev. 9. A vassal held entitled to object to the multiplication of superiors by the granting of liferent infeftments for the making of votes. — Duke of Montrose w. Colquhoun, 6 P. 805 (1782); Aff. M. 8822. 10. A party contracting to have a feu-right granted him cannot after- wards compel the superior to grant the charter to another party already indebted to the superior, for whom he alleges he contracted as trustee, the superior not having notice of such a trust at the time of the caa- tia-ct — Campbell Y. Steele, 2 W. ^ S. 334 (1826); Bev. 3 S. 60. 11. A superior having constructed a drain for the houses built on his feus, and allowed other drainage to pass into it, he is liable for damage done by storm overflow on a lower tenement. — Mags, of Edin- burgh V. Dickson, 4: W. ^ S. 1 (1830) ; Aff. 5 S. 94. 12. A- superior may grant precept of clare to himself in the dominium utile, without establishing his propinquity otherwise, if it iu fact exists. — Craig V. Cochrane, 2 Eobin. 446 (1841) ; Aff. 16 S. 1332. 13. The superior having acquired and possessed without infeftment the dominium utile for more than forty years, it is ipso jure consoli- dated with the superiority, and is not afterwards separated by the superior taking infeftment iu the property, and granting himself a charter of confirmation. - — Graham v. Bontine, 1 Eobin. 347 (1840) ; Aff. 15 S. 711. 14. The title made up by a vassal, who has charged all the alleged superiors to enter, cannot be affected by a flaw in the title of the superior who does enter, and by whom the vassal's title is completed. — Craig V. Cochrane, 2 Eobin. 446 (1841); Aff. 16 S. 1332. See Pbopbety, 24, 25, 26. II. Feu-Duties and Conditions. 15. A vassal in kirk lands, who had advanced money to the Crown on condition of holding of it in future, but always paying to it the usual feu-duties, is not entitled to withhold the feu-duties for his repay- ment on Parliament vesting the superiority in a lord of erection. — Farquhar v. Earl of Loudoun, Eobert. 303 (1720) ; Aff. 312 SUPERIOR AND VASSAL. [Feu-duties, ^c. 16. A general clause of reference in a sasine to the conditions and provisions in the charter particularly mentioned, the charter heing specified by its date and the name of the grantor, is suflScient to secure to the superior, as against creditors and singular successors, all the con- ditions and provisions in the charter. — Duke of Aigyle v. Earl of Breadalbane (1732); Cr. & St. 84 ; Eev. M. 10306. 17. A clause of return in favour of the superior is effectually dis- charged by his granting a charter without the clause, and even if the superiority is conveyed to another, a charter by the new superior with- out the clause wUl, after possession for forty years, extinguish the ori- ginal superior's claim. — Douglas v. Douglas, Cr. & St. 553 (1754); Aff. Elchies ». Provision to Heirs, No. 19. 18. A condition that a vassal should not dig for stones, coal, sand, &c., nor use the lands in any other way than by the ordinary labour of the plough and spade, does not prevent his erecting buildings to any extent. —Heriot's Hospital v. Ferguson, 3. P. 674 (1774); Aff. M. 12817. 19. An exemption in a feu-charter of all public burdens or imposi- tions imposed, or to be imposed, includes land tax, stipend, and school- master's salaries, but not the rebuilding or repair of churches and manses. — Greig v. Carstairs, 3 P. 675 (1775) ; Aff. M. 2333. 20. An original charter contained a reddendo of thirty bolls of com, convertible at 6s. 8d. Scots, at the option of the vassal ; held that the right to convert it at that rate was not lost by usage of delivering the ipsa corpora for ninety years. — Macleod v. Eoss, 2 P. 430 (1777) ; Aff. 5 Br. Sup. 615. 21. Eemit to consider whether it is competent to impose, as a con- dition of a feu, that all conveyances, &c., shall be prepared by the superior's law agent. — Harley v. Campbell, 1 W. & S. 690 (1825) ; 2 S. 341. See Eeal Burden. 7. 22. A vassal is not entitled to retain the feu-duty on the ground that a condition altius non tollendi contained in the charters granted by the superior to other parties has been infringed, his remedy against the superior, if he has been deceived by misrepresentation, being by action for damages only. — Heriot's Hospital v. Cockburn, 2 W. & S. 293 (1826) ; Eev. 4 S. 128. 23. In a charter there being a clause binding the feuar to relieve the superior of all multures, and the feu-duty being then declared to be " for all other burden, exaction, question, demand, or secular ser- vice, wliich can any ways be exacted or demanded," and the superior having always paid the stipend, he is bound to do so. — Heriot's Hos- pital V. M'Donald, 4 W. & S. 98 (1830) ; Aff. 9 S. Teind Ca. 156. 24. The purchaser of land binding himself personally to pay a Casualties.] SUPERIOR AND VASSAL. 313 ground annual (whether with or without sureties, and whether infeft or not), does not free himseK from the ohligation hy conveying the land, and the purchaser does not hecome liable, unless he actually undertakes the liability. — Millar t. Small, I M'Q. 345 ; 2 Stu. H. L. 60 (1853) ; Bev. 11 D. 495. Royal Bank v. Gardyne, 1 M'Q. 358, 2 Stu. H. L. 81 (1853) ; Rev. 13 D. 912. 25. A personal bond for payment of feu-duty by the vassal, his heirs and successors, is not avoided on a conveyance of the land to a pur- chaser, although the obligation is also inserted in the feu-charter. — King's College Aberdeen v. Lady James Hay, 1 M'Q. 526 (1853) ; Rev. 14 D. 675. 26. An obligation in a feu contract, binding the vassal to maintain and uphold a mill in good working order, and to insure it against fire, will bind him or a singular successor to rebuild it if burned down. — Clark v. Glasgow Ass. Co., 1 M'Q. 668 (1853) ; Rev. 12 D. 1047. 27. On a sale of land by auction, under condition that the purchaser should grant bond for the feu-duty, binding himself and all the suc- ceeding heirs and singular successors in the premises, the ptirchaser actually bound himself, his heirs, executors, and successors whomsoever. Held that he remained personally liable for the feu-duty, even after selling the land ; but without prejudice to an action for setting aside the bond granted as beyond the stipulations in the conditions of sale. — ElmsUy v. Brown, 2 ikf' Q. 40 (1855) ; Rev. See Bankruptcy, 64 — LiFiaiBNTBB, 3, 9 — Banking and Sale, 1. III. Casualties. 28. A claim of forfeiture on the ground of recognition being stated but not pressed, along with a claim for forfeiture on the ground of treason, under the Statutes 1 Geo. I. c. 20 and c. 50, 5 Geo. I. c. 20, on which last decree was obtained, the former claim cannot be set up by the superior in a subsequent action. — Earl of Sutherland v. Eoss, Cr. & St. 351 (1743) ; Alt. Elchiest;. Forfeiture, No. 3. 29. Where it is uncertain in whom the right of superiority is vested during a term of years, the retoured duties cannot be claimed from the vassals in non-entry during that period. — Chalmers v. Alison, Cr. & St. 404 (1746) ; Alt. M. 9330. See 8. 30. When the title to the superiority is doubtful, the retour duties only will be allowed during non-entry. — Coltart v. Maxwell, 2 P. 482 (1779) ; Aff. 31. A disponee of a feuar, not restrained from sub-feuing, is entitled to an entry on payment of only one year's sub-feu duties and casualties, and is not liable to pay a sum equal to the rents drawn by sub-feuars 314 TEINDS. [Valmtion. from houses they had erected on the ground. — Heriot's Hospital v. Eoss, 6 P. 640 ; 2 Bligh, 707 (1820) ; Aff. F. C. 6th June 1816. 32. A superior is not entitled to the composition payahle hy singular successors on entering heirs called by an entail who are not of line, or even related to the heir last seized, and a reservation in the iirst charter of his right under any claim he might have at law does not affect the question, as he has no right a,t law. — Stirling v. Ewart (AUershaw), 3 S. BeU, 128 (1844) ; Aff. 4 D. 684. See 2. See LiPERENTBB, 9. TEiJsros. I. Right to, p. 314 II. Valuation, 314 III. Locality, p. 315 IV. Eelibp against Augmenta- tions, 316 I. Eight to. 1. A prorogation of a tack of teinds, on occasion of an augmentation, for six nineteen years, reduced to one nineteen years on appeal by the patron against a decree of 1698, and another of 1708, though an in- termediate decree in 1707, confirming the first, was not appealed from. — Durham w. Lundine, Eobert. 16 (1711); Eev. 1708. 2. Immemorial payment of teind duty (not amounting to the full teinds) to the minister of a parish, does not prevent the titular from claiming in future the full teinds ; but as regards arrears the defence of bona fides is valid in the case of those who for forty years prior to the suit had so paid. The present rental is the basis for valuation of arrears, except in so far as the vassal can show it was formerly lower. Tacit relocation holds in a tack of teinds, and is available to the vassals paying to the tacksman. — Easton ». Stirling, Cr. & St. 90 (1733); Alt. M. 1717. 3. A disposition of lands by the titular not referring to the teinds in the dispositive clause, but in other clauses stating that the purchaser should be liable for augmentations, but with warrandice against eviction of teinds, and with a statement that the price paid was that agreed on for stock and teinds, carries the teinds. — Stewart v. Ker, 6 P. 81 (1815); Eev. See Landlord and Tenant, 47 — Pbopeexy, 2. II. Valuation. 4. An action of valuation of teinds having fallen asleep, and the minister havmg assigned the teinds payable to him, which was re- Locality.] TEINDS. 315 cognised hj the pursuer for some years, lie is bound, on wakening tlie action, to call the assignees as parties. Error in a decree of valuation in absence is a ground of reducing it. — Scott v. Mags, of Montrose, Eobert. 96 (1714) ; Aff. 5. A decree of Taluation having been lost, and the casus amisdonis proved, the sub-valuation may be ratified even after a lapse of a century. — Lord Advocate v. Duke of Montrose, 2 P. 15 (1758) ; Aff. 6. A decree of approbation of a sub-valuation being found after the lapse of 130 years to have been invalid, a new process of approbation may be brought ; but if it appear that the minister was not present nor cited at the valuation, the valuation will be invalid. Question as to formal defects and the effect of dereHction of the sub-valuation by over-payments. — Ferguson ». Gillespie, 3 P. 534 (1797); Aff. M. 15768. 7. A sub-valuation confirmed, although it did not appear that the minister had been cited, he being only a stipendiary, and the titular having been cited. — Smith w. MacneH, 5 P. 244 (1809); Aff. F. C. 3d June 1801. 8. The principal decree of valuation of teinds having been lost, and not supplied, under the Act 1707, for more than a hundred years, an extract in the possession of the party, in which the principal number had become illegible through the wearing of the paper, is inadmissible as evidence of the valuation. — M'Dougall v. Hogarth, 1 S. Ap. 5 ; 3 BHgh, 41 (1821) ; Aff. 9. A decree of approbation of a sub-valuation of teinds, pronounced in absence of the minister of the parish, may be challenged by reduction. The summons in an action of approbation is competently executed by service on the minister after his presentation, though before induction, along with the other ministers of the Presbytery. — Duke of Gordon V. GiUan, 1 "W". & S. 295 (1825) ; Aff 9 S. Teind Ca. 64. 10. A decree-arbitral pronounced in an extra-judicial submission between the titular of teinds and the heritors, to which the minister of the parish was not a party, does not bind the minister, and cannot be made effectual against him by a summons of approbation to which he does not consent. — Gordon v. Dunn, 7 W. & S. 68 (1833) ; Aff. 10 S. 338. 11. Held that certain lands were not included in lands of the same designation, as to the teinds of which a sub-valuation had been obtained. — Scott «. Kerr, 2 S. & M'L. 968 (1837) ; Aff. 9 S. Teind Ca. 233. See Conveyancing, 13 — Paeish, 12. III. Locality. 12. Eemit to review interlocutors altering the locality in an augmen- 316 TEINDS. [Relief against Augmentaticms. tation, on. the production of a title to teinds, which, la the last augmen- tation had not been produced. — Porterfield v. Off. of State, 6 P. 77 (1815) ; Eem. 13. Teind duties, payable under the charter either to the superior or to the minister, are liable to be locaUed on primo loco, and when the vassal has, in fact, paid for many years a stipend larger than the duties, it is to be presumed, in a question with the superior, without produc- tion of the decree of locality, that they have been so localled. — Duke of Hamilton v. Mather, 2 S. & M'L. 586 (1837); AS. 14 S. 162. See 2. 14. Although a decree of locality in an augmentation may be a res judicata in subsequent augmentations, if the right of the heritor to teinds is thereby finally decided, yet a decision on such question does not become res judicata if, in the subsequent proceedings, there are found to be free teinds to such amount as renders the decision of the question unnecessary for the present. — Lord Blantyre v. Earl of Wemyss, 3 S. BeU, 34 (1844) ; Eev. 16 S. 1009. 15. The common agent in a locality has implied power to consent to a decree sustaining a claim of decimm inelusce, and such decree is res judicata, although not extracted. — Earl of Hopetoun v. Eamsay, 5 S. BeU, 69 (1846) ; Aff. 3 D. 685. See 19 — Parish [Stipend). IV. Eblibf against Augmentations. 16. A party holding along lease of teinds, and assigning it, with warrandice against augmentations, in the same deed in which he con- veys landed property, is liable in relief of only such augmentations as are granted within the years of the lease. — Hepburn v. Callander, 6 P. 6 (1814) ; Eev. 17. The patron of a parish having in 1604 acquired a tack of the whole teinds for two hundred and forty years, and having in 1656 assigned the teinds of part of the lands, with warrandice that the teinds assigned should bear no heavier future burden than the rest of the teinds, and his representatives having, under the Act 1690, c. 23, obtained an heritable right to all the teinds not heritably disponed, the warrandice in the assignation of 1656 entitles the assignee to claim that he shall only contribute on an augmentation in proportion to the rest of the teinds. —Earl of Seafield v. Abercromby, 1 S. Ap. 485 (1823) ; Eev. 18. A titular and patron having sold the teinds to an heritor, with obligation on himself, his heirs, and successors, to warrant them against any future augmentations, the heirs of tailzie of the patronage and titu- larity are liable in rehef on the warrandice, without discussing the heirs THIRLAGE. 317 of line of the seller. —Duke of EoxbiHgh v. Kerr, 6 W. & S. 526 (1833); Aff. 19. A feu-disposition of lands, the reddendo heing of a sum in name of feu-duty, and delivery of a quantity of meal and a sum of money for victual and money teind of the lands, with warrandice against all other feu or teind duties, the disponer heing also titular, hut not mentioned as such in the disposition, does not make the meal and money so stipu- lated liable to be allocated primo loco as free teinds, nor give the feuar any right to relief of augmentations by the disponer. — Hamilton v. Duke of Hamilton, 1 S. & M'L. 65 (1835); Aff. 9 S. Teind Ca. 171. 20. Warrandice against augmentation held effectual after lapse of one hundred and fifty years, and after the original estate of the granter had been judicially sold, the heir of the granter being connected with him by acceptance of a provision under burden of his debts, and at other stages of the descent, by special service as heir of line, tailzie, and provision in another estate held under a destination merely. — Halket V. Msbet's Tts., M'L. & E. 53 (1839) ; Aff. 13 S. 497. 21. An obligation, with warrandice to relieve a purchaser of land from futuie augmentations of stipend, does not pass to another pur- chaser without special assignation. — Maitland v. Home, 1 S. Bell, 1 (1842) ; Eev. 3 D. 435. 22. A warrandice against augmentations contained in a contract of sale and subsequent charter is not a personal contract passing to the executors, but is not a contract running with the land, available to aU owners of the land. It passes to the heirs of the purchaser, but they must make up their title to it in a suitable form, and a precept of clare in the lands does not carry it, nor a disposition of the lands with gene- ral assignation of writs. — Marquis of Breadalbane v. Sinclair, 5 S. Bell, 353 (1846) ; Eev. 16 S. 815. 23. An obligation of relief against augmentations, incorporated in the original feu-charter, runs with the land, and so is effectual without spe- cial assignation in the hands of a singular successor against the heir of the superior. — Duke of Montrose v. Stewart, 4 M'Q. 499 (1863) ; Aff. 22 D. 755. Bee SuPBEioK and Vassal, 19, 23-27 — Wareakdice, 3. THIELAGE. 1. A servitude of thirlage cannot be constituted by usage without writing, and lands originally astricted may be liberated by a disposition by the superior, owner of the mUl, conveying the lands cum molendinis, 318 TEUST. {Constitution of. &c., in the tenendas, and containing a reddendo of a sum pro omni alio onere. — Colta.Ttv. Frazer, 2 P. 332 (1774); Aff. M. 16058. , 2. An obligation to briag " the whole grain which shall grow upon the said lands, and other stuff and com they shall happen to grind, to the town of Glasgow's mills, and grind the same thereat, seed and horse corn and hear excepted," applies to grana crescentia only, and not to invecta et illata. — Dawson v. Mags, of Glasgow, 4 W. & S. 81 (1830) ; Eev. 6 S. 19. 3. Thirlage is always to be considered with a leaning in favour of the lightest form, or that on grindable graiu only, and all doubtful words or acts are to be so interpreted, any other form being odious ; and the evidence of one witness is not enough to prove that custom had extended it to grana crescentia. Thirlage cannot be proved without production of a written title, except in the case of kirk or Crown lands. — Duke of ArgyU». Macalister, 6 W. & S. 98 (1832) ; Eev. 9 S. 763. See SuPEEiOE and Vassal, 23. TEUST. I. Constitution, . . . p. 318 II. Continuance, .... 319 III. Rights and Duties of Trustees, .... 320 V. Eights of Benefici- aries, p. 324 VI. Income OP Trust Estate, 324 VII. Trust for Creditors, . 325 IV. Liabilities OF Trustees, 322 VIII. Public Trusts, . . . 326 I. Constitution of. 1. A conveyance ex facie absolute being alleged by the disponer to have been really ia trust, he is allowed to refer the question to the oath of the disponee, and on his failing to depone, the trust is estab- lished. A discharge obtained while the party was under caption at the instance of the party to whom it is granted, is void, and the question of the circumstances under which it was granted may be referred to oath of the grantee. — Arratt v. Wilson, Robert. 234 (1718) ; Aff. 2. A reference to the oath of a peer admitted in a question whether a conveyance to him by a vassal was delivered, or was made condi- tionally, and a reduction of the vassal's title reserved till such oath should be taken. — Bobertson v. Uarl of Kinnoul, Robert. 287 (1720) ; Rev. 3. A conveyance absolute in terms, but alleged by the granter to have been made under certain conditions, and the grantee having de- poned that he never heard of any conditions, and the parties through Contimianee.'] TRUST. 319 whom the transaction took place haTing deponed to the same effect, the conveyanoe is held iinqualLfied. — Robertson v. Earl of Kinnoul, Robert. 394 (1721) ; Aff. 4. An instrument executed by the granter of a prior conveyance for valuahle consideration, declaring it to be granted in trust only, is not relevant proof of trust. — Maapherson v. Macpherson, Robert. 435 (1723);^/. • 5. An absolute disposition to the law agent of the disponer for an inadequate price, not reducible in the circumstances, on the allegation that it was in trust for the creation of a vote. — Douglass v. Dalrymple, 2 P. 187 (1770); Aff. 6. A., a relation of B., having purchased B.'s estate with the declared object of relieving him from difficulties, and having expressed an in- tention, in an agreement with a trustee for B., to settle part of the price obtained on a resale on the family of B., and directed deeds for that effect to be prepared, but having died before they could be exe- cuted, his representatives are bound in terms of the agreement. — Duke of Queeiisberry v. Douglas, 2 P. 603 (1783) ; Aff. See Contract, 6. 7. An allegation that a purchase of land by one was really made in trust for another, can only be proved by writ or oath. — Duggan v. Wight, 3 P. 610 (1797) ; Aff. M. 12761. 8. An allegation that a lease granted to one was granted to him and held really in trust for another, may be proved by parole evidence. — Gordon v. Tough, 5 P. 286 (1810) ; Aff. 9. A bOl of lading does not make the consignee a trustee, but only depositary, and consequently the property of the goods may be proved otherwise than by his writ or oath. — M^ Gavin v. Stewart, 4: W. ^ S. 184 (1830) ; Rev. 6 S. 783. 10. A general trust-disposition having been executed in 1802, and a subsequent general trust-disposition in 1821, revoking all former settlements in so far as inconsistent with it, and the House having decided that in the latter there were no trusts applicable to a certain property, it does not thereby pass to the heirs-at-law, but to the bene- ficiaries under the first settlement. — Allan v. Glasgow, 5 S. Bell, 379 (1846) ; Aff. 4 D. 494. See Deed, 30 — Legitim, 7. II. Continuance. 11. A trust-deed being granted to the trustees nominatim and their assignees, but without mention of their heirs or executors, on the death of the sole accepting trustee the trust right reverts, as to the personal estate, to the personal representative of the trustee. — Kirkpatrich v. Inne^, i W. ^ S 48 (1830) ; Aff. 4 S. 629. 320 TRUST. [Bights and Duties. 12. A trust-deed for a charity gave power to assume new trustees on the occurrence of vacancies ; held that this was sufficient provision for continuance of the trust, although the heirs, &c., of the trustees were not named, hut if not, the Court had power to give directions for its continuance. Approval of the distinction as to exercising this power hetween cases where the trust was intended to continue, and those in which it was intended that the heir should take on its coming to an end.— Miller Y. Black's Trs., 2 S. ^ M'L. 866 (1837); Aff. 14 S. 555. 13. Question, Whether, on the trustees named in a deed declining to accept, the Court can appoint others with the full powers given in the deed, but decided that, the Court having made such an appointment, the title of the trustees, while it stands, cannot be objected to by one of their own number. — Preston v. Viscount Melmlle, 2 Bohin. 45 ; 8 CI. ^ Fin. 16 (1841) ; Aff. 16 S. 457. See Member op Parliament, 4. III. Eights and Duties of Trustees. 14. When a trust-deed appointing a sine quo iwn contemplates cases in which the sine quo nan may be unable to act, the quorum may make a good conveyance though the sine quo non declines to accept. — Forbes v. Honeyman, 5 P. 226 (1808) ; Aff. F.G. 2d Feb. 1808. 15. Money being left by an English testator to trustees, to be in- vested in land in England, and, no advantageous opportunity having occurred, being applied under a private Act to the redemption of bur- dens on the beneficiary's estate in Scotland, for which a bond over the estate was granted to the trustees ; held that they were entitled to call up the money and invest it as directed in the wUl, under direction of the Court of Chancery, on an opportunity offering. — Marchioness of Annandale v. Marquis of Annandale, 6 P. 697 (1755) ; Bev. 1 6. Observed by Lord Eldon, that the appointment by trustees of one of their number to be cashier and agent would in England at least be improper, and that he is not entitled to charge for an accountant in making up his accounts unless it appears that such assistance was necessary. — Lord Montgomerie v. Wauchope, 4 Dow, 109 (1816); Bern. 17. A married woman named as a trustee may act and vote, although her husband is also named, without exclusion of his jus mariti. — Watson V. Darling, I W. 4- S. 188 (1825) ; Aff. 2 S. 607. 18. Where a trust-deed orders annuities to be paid, and the residue of the trust funds to be invested in lands, the annuities are to be secured by the appropriation of a sufficient part of the capital, the sur- Rights and Duties^ TRUST. 321 plus interest of •wrliich. is to be applied as ttie interest of tlie residue, and the capital itself, as the annuities fall in, applied as capital of the residue. —Earl of Stair v. Earl of Stair's Trs., 2 W. ^ S. 614 (1827) ; Rev. 5 S. 476. See Vesting, 6, 7, 8. 19. A trustee who has accepted cannot resign, and must concur in all proper acts of administration. He is not entitled to refuse to join in granting a discharge for money repaid the trust to the investment of which he had objected. — OwhterlonyY.Lord Lynedoch, ^ W. ^ S. 148; 7 Bligh, N. S. 448 (1830) ; Aff. 5 S. 358. 20. A direction to trustees to lend a sum on security, taking the interest payable to a party for life, and the principal payable to the trustees or their foresaids at his death, does not imply a gift of the fee to them personally, but a direction to hold it as part of the trust estate.— ii;f*7ZerT. Black's Trs., 2 S. ^ JJ^'L. 866 (1837); Aff. 14 S. 555. 21. The law-agent of trustees having, in conjunction with one of them, who was husband of the heiress-at-law of the truster, and life- rentrix of the trust estate, made up her title as heiress-at-law, and taken from her a disposition of the estate in alleged security of a debt, which disposition he assigned to a third party ; held that without a reduction of the disposition, or awaiting the issue of accounting, he was bound, at the suit of the trustees, to restore the estate in integrum against the dis- position. Three trustees being a quorum, held entitled to sue, the fourth being called as co-defender, and a fifth resident in England, and alleged by the defender to have resigned before the date of the transaction. — Eraser v. Steven's Trs., M'L. ^ R. 171 (1839) ; Aff. 14 S. 676. 22. Under a trust for the support and maintenance of schools on a specified system, it is competent for the trustees to enter into a con- tract with existing schools to teach on that system, and such contract wiU bind the trustees. — Gray v. Forbes, M'L. ^ R. 530 (1839) ; Aff'. 15 S. 628. 23. A party having executed a trust-deed conveying aU his estate to trustees for family purposes, and afterwards executed an entail, in virtue of a reserved power in the trust-deed, and expressly referring to it, and by subsequent writings shown that his intention was that the entail, though in terms de presenti, should not take effect until the trust was fully executed, the trustees are entitled to compel the heir of line to complete their title, though he is also the heir of entail, and had made up titles under it. — Preston v. Viscount Melville, 2 Robin. 45 ; 8 CT. ^ Fin. 16 (1841) ; Aff. 16 S. 457. 24. Trustees of a mortis causa settlement are bound, before paying legacies, or investing the residue, to retain enough to meet the debts and obhgations of the settler, and therefore they cannot be allowed to 322 TRUST. [IdaUUties of Trustees. plead to such claims that the effects are exhausted hy such investments, but are personally liable in such case. — Cruikshank v. Gruikshank, 4 S. Bell, 179 (1845); Aff. 5 D. 733. See Minor, 18 — ^Public Woeks, 16. rV. Liabilities of Tbustees. 25. A discharge and disposition to a trustee, gained by fraud and circumvention, will be set aside, except as a security for money actually advanced by the trustee. — Home v. Home, Robert. 47 (1712); Aff. M. 5236. 26. Sequestration granted of an estate, long held under a trust for creditors, and in which the House had found the trustee guilty of fraud and failure duly to account. The trustee held liable for a dispo- sition of the estate made by the real owner, who was of weak mind, but with consent of the trustee. Continuance of 25. — Home v. Home, Bobert. 105 (1714) ; Bev. 1714. 27. A creditor purchasing at a judicial sale an estate on which there are several debts besides his own, is bound to communicate to the other creditors the benefit of a bargain made before the sale, to resell the estate to a third party at a higher price. — Fairholm v. Cockhurn, Bobert. 317 (1720); Aff. 28. Trustees for creditors, appointed with a salary, having imprisoned on a judgment debt a debtor of their debtor, and afterwards consented to his release, are liable for the amount of the debt due by him. — Abereromby v. Jnnes, Bobert. 457 (1724) ; Alt. See 32. 29. A party who has become bound for the purchase-money of reversionary interests, in his own name, but really for behoof of another, to whom he assigns them, nevertheless remains liable for the price under the original purchase, although the party for whom he acted sub- sequently grants a further bond for the price. — Stewart v. Gardner, 2 P. 549 (1780); Aff. 30. A common agent, in a ranking and sale, cannot purchase the estate if he takes any advantage of the knowledge or authority which his office gives him, and the sale in that case is reducible, even after a considerable lapse of time, saving the rights of tenants ; and an account will be taken of the rents received, and set against the price paid and sums beneficially expended on the estate, and the difference will be ordered to be paid back. — Torh Buildings Co. v. Maelceneie, 3 P. 378; 8 Br. P. C. 42 (1795); Bev. M. 13367. 31. He is thus entitled to credit for the expense of making up titles, for planting trees and shrubberies, building houses and offices, and not liable for the expenses of the reduction of the sale. But he is not entitled to charge a factor's fee for receiving the rents, nor for outlay Liabilities of Trustees.] TRUST. 323 in boring and seeking for coal. The rents allowed to be computed as received at llth November ia each year, altbougb due at prior terms. — York Buildings Co. v. Mackenzie, 3 P. 579 (1797) ; Aff. 32. Trustees for creditors are liable for tbe defaults of tbeir factor. A decree at tbe instance of creditors against trustees, jointly and severally, is not res judicata against an action of relief by one trustee against another. A trustee who has liberated a debtor to the trust, is personally liable to relieve the other trustees of the amount of the debt. — Stewart r. Elder, 6 P. 186 (1816) ; Aff. 33. The law of England refuses to a trustee appointed manager or receiver of the trust by his co-trustees any remuneration, unless the deed expressly authorises it, and as the rule is statutory, and there is no reason for a contrary rule ia Scotland, it ought not to be contra- vened. (Per Lord Cottenham) — But the House will not re-open settled accounts to give effect to it, where the advantage would be small, and the salary had the concurrence of the beneficiary. But held that a trustee so appointed factor or cashier, whether with or without a salary, is the agent of the other trustees, and they are liable for his in- tromissions only ia so far as the character of agent implies, and they are not liable for such intromissions to the extent which they might be in regard to them, were he merely acting as one of the trustees, and therefore they are not liable for the loss of balances held by him which they did all in their power to reduce. — Home v. Pringle, 2 Robin. 384 ; 8 CT. ^ Fin. 264 (1841) ; Aff. 16 S. 142. 34. Trustees are not liable to personal diligence upon a heritable bond granted by them " as trustees" only. — Gordon v. Campbell, 1 S. Bell, 428 (1842) ; Aff. 2 D. 639.' 35. A trustee for creditors, purchasing a debt due by the common debtor, is bound to communicate the benefit of the transaction to the estate, and must assign the debt to the estate on being reimbursed the price paid. — Hamilton v. Wright, 1 S. Bell, 574; 9 CI. S[ Fin. Ill (1842) ; Rev. 1 D. 668. 36. A curator bonis is not entitled to business charges (except for outlay), over and above his commission on the sums passing through his hands, being on the same footiag as a trustee. — Robertson v. Mori- son {ex p.) 6 S. Bell, 422 (1849); Rev. 37. Trustees, though not specially directed in the deed as to the securities they may iavest the funds ia, are bound to select proper securities, and are personally liable for impropriety in such selection, and for want of proper diligence in obtaining payment on parting with the security. Terms of an unusually broad indemnity clause which might protect them from liability under the former head, but not under the latter. — Thomson v. Christie, 1 M'Q. 236 ; 1 Stu. 925 (1852) ; Aff. x2 324 TRUST. [Bights of Beneficiaries. 38. Trustees held not persoiially liable for the professional charges of one of their numher whom they had appointed to manage the trust, and who had a principal personal interest in it. Douhts expressed on Cradock v. Piper, 1 M'N. & G. QU.—Mamony. Baillie, 2 M'Q. 80 <1855); 4/. 8i). 611. See Error op Law, 5 — ^Fobfbituee, 13 — Law Agent — Minor, 18— Public Works, 16. V. Eights of Beneficiaries. 39. The institute of an entail and apparent heir of the investiture held entitled to be enrolled as freeholder, though the legal estate had been conveyed by his father to trustees for his behoof. Question as to valuation by Commissioners of Supply. — Speirs v. Campbell, 3 P. 201 (1791) ; Aff. M. 8808. See EntaU, 10— Outlaw. 40. The several beneficiaries under two trust-deeds having, by agree- ment, after the settlor's death, renounced the latter and reverted to the former deed, as fixing their rights, the whole conditions of the former deed must be considered as adopted by them as at the date of agree- ment ; and therefore a claim by one that an obligation laid on Mm in the trust-deed to divide a certain sum, on succeeding to it, was to be read as only applyiag to his succeeding prior to the death of the settlor, is inadmissible, and the obligation remains effectual. And one of the beneficiaries is not entitled to security against a minor daughter of one of the other beneficiaries repudiating the agreement, and claiming under the later deed, beyond the security arising from the warrandice of her father, and mother, and other parties, and the power of the trustees, of whom the beneficiaries formed a majority, to secure the fund appor- tioned to the daughter. — Adamson v. Darling, %W.^S. 501 (1833) ; Aff. 10 S. 119. See Forfeiture, 9 — Heritable and Moveable, 11, 12, 16^ — Husband and Wipe, 64 — Prescription, 6, 10 — Vesting — Will, 33, 34, 35. VI. Income of Trust Estate. 41. An heir is not entitled to interest from the testator's death on sums bequeathed to trustees to be invested in land for his benefit. Query, Whether he would be entitled to interest after the lapse of a twelvemonth after the death ? — Earl of Stair v. Earl of Stair's Trs. I W. ^ S. 72 (1825) ; Aff. 2 S. 205. See 2 W. & S. 414 and 614— Entail, 48. 42. A trust-deed having directed an estate to be settled on the first of a series of unborn heirs who should attain twenty-one, and assigned the rents to the truster and his trustees for the use and behoof of the Trust for Creditors.] TKUST. 325 heirs in their order, the rents accumulate for the benefit of the contin- gent heir, and do not belong duiing the interval to the heir at law, as if undisposed of. Question, "What would have been the rule if no express assignation of rents'? Costs allowed out of the estate? — Graham \. Tempter, 3 W. ^. & 47 ; 3 Bligh, N. S. 381 (1828) ; Aff. 4 )S. 460. 43. There is no common-law rule iu Scotland against accumulation for at least the period of thirty years or hves in being, and the Thel- lusson Act (39 and 40 Geo. III. c. 98) applies in Scotland only to personal property. — Earl of Strathmore t>. Strathmore Trs. 5 W. & S. 170 (1831) ; Aff. 8 S. 530. 44. The trustees of a will beiug directed to invest the funds in land, and on occurrence of a certain event to entail the land, the rents till then are undisposed of, and pass to the heir at law. — Turnbull v. Cowan, 6 S. Belt, 222 (1848) ; Aff. 7 D. 872. 45. When there is a direction in a will to purchase real estate to be entailed, with no direction for accumulation, the income goes to the heir-at-law from the testator's death. — Macpherson v. Macpherson, 1 M'a 243 (1852) ; Rev. 12 D. 486. See Entail, 48. VII. Trust fob Crbditoes. 46. A trust bond for general behoof of creditors extinguishes a prior bond granted for his debt to one of the creditors, if he has notice of, and acquiesces in, the general deed, though he does not sign it. — Russell V. Cochrane, Robert. 84 (1714) ; Aff. 1712. 47. A mother haying conveyed securities to trustees for the purpose of paying her son's debts, but with a clause bearing that any creditor who might institute an action against the trustees should forfeit all claim to participate, the creditors have, nevertheless, a good title to sue the trustees for the due execution of the trust ; and if the heir of the truster does not oppose the action, it is jus tertii iu the trustees to ob- ject the clause of forfeiture. — Duke of Hamilton v. £!arl of Hadding- ton, Cr. 4- St. 447 (1750) ; Aff. M. 16201. 48. A trust-disposition for behoof of creditors with power of sale, re- ferring to a separate list of creditors and their debts, and appointing it to be recorded in the Eegister of Sasines, along with the infeftment on the trust-deed, which was done, does not make the debts real burdens, and on the trustees reconveying, and a judicial sale taking place, the credi- tors named in the trust-deed can claim no preference. — Chalmers v. Boss, 3 P. 417 (1795) ; Aff. 49. Concurrence by a creditor, in a trust-deed by the debtor, is suffi- ciently proved by a claim lodged under the trust, and if the trust-deed 326 TRUST. [Public T)-uds. stipulates for time to be given to the debtor, such concurrence liberates his sureties. — Mackenzie ff. Macartimy, 5 W. S( S. 504 (1831); i?e?;. 8 8. 862. 50. A creditor acceding to a private offer of composition, made sub- ject to the condition that all the creditors should agree to it, is liberated if all do not agree. — Pattison v. Allan, 7 W. 4^ S. 26 (1833); Aff. 7 S. 124 51. When a trust for creditors, acceded to by them, provides for the appointment of a new trustee on the death of the first, it is incompetent for one creditor to apply for sequestration of the rents and a judicial factor, or to bring an action of maUIs and duties. — Hamilton v. lAttle- jolm, 7 W. 4r S. 380 (1834); 2 S. # M'L. 355 (1836); Bev. 11 S. 217. 52. An obligation in a trust-deed for creditors to grant such farther deeds as may be necessary for the niore effectually carrying into execu- tion the purposes of the present trust, is to be read in reference to the property actually conveyed, and is not an obligation to cpnvey other property. — /raz v. Paul, 2 Bohin. 524 (1841) ; Bev. 1 D. 27. 53. When a trust-deed for creditors is granted, stating the debts, it obviates the necessity of producing any other evidence of the debts, and makes them no longer subject to the shorter prescriptions which would otherwise have applied to them. The marking of " paid" against a debt in a schedule, without signature, is no evidence of payment, nor admits evidence of a debt similarly marked having been paid. When the trust-deed is not produced by the debtor, a recital of it in an heritable bond is evidence agaiust him. — Watson v. Johnstone, 4 S. Bell, 245 (1848) ; Aff. 54. A mortis causa trust-settlement does not become a proper trust for creditors by a direction to pay the testator's debts, and the fact that he is found to be reaUy iasolvent ; and therefore a preference is acquired, by arrestment in the hands of the trustees, six months after his death. — aiobe Ins. Go. v. M'Kenzie, 7 8. Bell, 296 (1850); Aff. 11 D. 618. See 27, 28, 29, 35— Secukity, 10. VIII. Public Tbusts. 55. Eoad trustees appointed by an Act of Parliament, which gives them power to raise money upon the toUs, may exercise this power by a majority, but no one will be personally bound by the mere vote of the majority, in any matter beyond the limits of the statute, even though he was present and did not dissent, unless he has done some act by which ho has rendered himself personally liable. — Cunynghame V. Higgiiis, 4 P. 401 (1802). Higgins v. Livingstone, 6 P. 244; 4 Dow, 341 (1816); Aff. VALUATION. 327 56. Whea the road under a Turnpike Act is divided into districts, and a part assigned to a committee of trustees, the committee have for that purpose all the general p'owers of the Act, including that of ap- pointing clerk and treasurer, and ^the clerk is the proper party to sue the cautioners for the treasurer. — Creighton v. BanJcin, 1 Robin. 99 ; 7 CI. 4r Fin. 325 (1840) ; Aff. 1& S. 447. USUEY. 1. A charge for redramng bills did not amount to usury. — Cuming V. Pantoun, Eobert. 582 (1726) ; Aff. 2. A time bargain, at a price of 25 per cent, in a year, was not usurious. A penalty of a bond enforced (in a judgment of consent) by the House. — Charteris v. Earl of Hyndford, Eobert. 471 (1724); Alt. 3. A bond, at 5 per cent, interest, for L.12,000, in security for stock value only L.7000, but the capital sum being only exigible in the event of the stock rising 20 per cent., was not usurious. — Farquharson V. Barstow, 4 "W. & S. 9 ; 4 BUgh, K S. 560 (1830) ; Aff. 5 S. 251. 4. Whether the taking more than 5 per cent, for discounting bills was usury was a question for a jury. — Walker v. Allan, 4 P. 303 ; 2 Dow, 254 (1802-14) ; Eem. M. Usury, Ap. No. 1. See Action, 77 — Paetneeship, 19 — Statute, 20. VALUATION. 1. The- Commissioners of Supply are not bound to furnish the col- lector of land-tax with a roU of the persons liable to pay the same. — Advocate-General v. Comrs. of Supply for Edinburgh, 4 M'Q. 387 (1862); Aff. 23 D.' 933. 2. When a property has been stated ia the valuation roU, it must be assessed for all rates directed to be levied according to that roU, and the proper way to raise any question of liability of the property is by appeal against the valuation. — Greenock Trs. v. Shaws Water Co. 4 M'Q. 593 (1864); Eev. 24D. 1306. See Member of Parliament, 7, 13 — Trust, 39. 328 VESTING. VESTING. 1. A conveyance reseiving the granter's liferent right, which light had heen already forfeited, does not suspend the vesting of the right in the grantee. — Cuming v. Presby. of Aberdeen, Robert. 364 (1721) ; Bev. 2. A bond of provision to a son nominatim, with interest from date, but the principal not payable for five years, vests on being granted. — Campbell v. Pollock, Bobert. 324 (1720) ; Af. M. 6342. 3. A bequest to a son, payable on his arriving at thirty-one, or being married, but declared to fall into the residue if he should die under thirty-one or unmarried, vests on Ms attaining the age, though unmarried, the word or in the gift over being allowed to be read as if it were and. —Grant v. Dyer, 2 Dow, 73 (1813) ; Bev. 4. A mortis causa disposition to trustees for the liferent use of the disponer's widow, and after her death or second marriage, for the use of his brother and his heirs and assignees, in fee, if he should then be in life, with a direction that immediately after the death of the dis- poner and his wife, or the survivor, the trustees should convey to the brother, if in Ufe, but if he should have predeceased then to a substi- tute, vests the fee in the substitute, on the death of the brother in the Metime of the widow, and a general disposition by the substitute will efiectuaUy convey the fee, even though he also dies before the widow, and the fee was given to him alone, without mention of his heirs and assignees. — Leitch v. Leiteh's Trs., S W. ^ S. 366 (1829) ; Aff. 4 S. 6.59. 5. A deed of settlement having directed the trustees to denude, at majority of the eldest, in favour of the children procreated of the body of A. then deceased, (leaving two daughters), and of B., who then had no children, the male children always excluding the female, and if no male, then the females taking as heirs portioners. Held that the division was to be bipartite, the daughters of A. taking one-half equally between them, and the male sons of B. taking the other half, and the division being made on the eldest of the daughters of A attaining majority, the sons of B. finding caution to make good the shares due to any other sons who might thereafter come into existence; costs given out of the estate. — Bryden v. Bryden, & W. 4^ S. 354 (1833) ; Aff. 9 ;Sf. 457. 6. The residue being directed by a testator to be invested for the payment of annuities, and on the capital sums becoming tangible by the death of the annuitants, to be divided among certain parties, and the survivors and survivor, at their majority or marriage, with right to the interest till payable, and power to the trustees to advance the share WAERANDICB. 329 of each, and in the event of the death of any before payment, his share to descend to his issue. Held that the shares did not Test till after the falling in of the annuities. — Pearson v. Casamajor, M'L. ^ R. 685 (1839) ; Aff. 15 S. 275. 7. A trust settlement directed a sum to he paid to the family of A. suhject to his distribution, and iaterest to be paid by A. on the legacies till his death, and after the purposes of the trust were fulfilled, the residue to be paid to the settlor's nearest relations then Hving. Held that the purposes were not fulfilled tiU. after the death of A., and that it was incompetent for him, by agreement with his own family, to ter- minate the trust at an earlier period, so as to claim the residue as being himself the nearest relative living at such period, excluding such as might be the nearest after his death. — Scott v. Scoit, 7 8. Bell, 143 (1850) -.Aff.dD. 1264. 8. A direction that "after executing the purposes of this trust, the free residue shall belong to A," the purposes being, inter alia, the payment of annuities, for which A, is to give in addition his personal bond, vests the residue ia A. at the testator's death, and entitles him to im- mediate possession. — Pursell V. Newligging, 2 Jf' Q. 273 (1855) ; Aff. 15 D. 489. 9. Under a direction to pay the residue of an estate under a trust settlement, after the death of the survivor of the testator and his wife, to certain parties, declaring that if any should die without issue before his share vested, it should be divided among the survivors, the sums do not vest tUl the period of payment. Costs allowed out of the fund. — YouTig V. Eobertson, 4 M'Q. 314 (1862) ; Bev. 22 D. 1527. 8ee Aliment, 2 — Conquest, 3— Fee and Liferent, 18 — Husband AND Wipe, 51 — Teust — ^Will (Legacies). WAGER No action lies on a wager. — Bruce v. Boss, 3 F. 107 (1788) ; Aff. M. 9523. See Sale, 15. WAREANDICE. 1. An agreement of sale having bound the seller to give absolute war- randice, and the vendee having assigned his right to a party who was aware of a defect in the title, the assignee must take it as it stands, with warrandice from fact and deed only, or renounce the bargain. — Hepburn v. Aikman, 2 P. 327 (1773) ; Aff. M. 14179. 330 WAY. 2. "Warrandice of a property is not warrandice of its sufficiency for the purpose for whicli it is purchased, unless that purpose is distiactly stated. A reference to missives of sale in the conveyance wiU not let them in to interpret the conveyance, unless it specifies "which missives. In an action on warrandice, a conclusion for damages, in case of evic- tion, win not render it an action quanti minoris, and the formal objec- tion on this ground is not waived by the defender stating that he is ready to meet such conclusion if the Court should consider that it could competently he entertained. — Hughes v. Gordon, 1 Bligh, 287 (1819) ; Rev. F. G. 15th June 1815. 3. On the sale of an estate warrandice was granted against augmenta- tions of stipend, and it was declared that the price might in part be re- tained till real warrandice was given. With the price two estates were purchased, and strictly entailed ; over one of them a bond of warrandice was given, but not over the other. Held that both estates were liable to be adjudged in warrandice, even after they came to be vested in a substitute heir of tailzie. — Justices. CaUander, 4 W. & S. 94 (1830) ; Aff. 5 S. 68. See Conveyancing, 18 — Fraud, 3 — Husband and "Wife, 38 — Landloed and Tenant, 7, 45 — Mines and Minerals, 2 — Peb- SCEIPTION, 15 — Sale, 28 — Teinds, 16-23. WAY. 1. Eoad trustees have not power, on opening or improving a road, to shut up of their own authority another road, and convey the solum. — Walker v. Weir, 6 P. 281 (1817) ; Rev. 2. When the inhabitants of a burgh have a servitude of footpath, they are entitled to prevent the owner of the property from arching it over further than to the extent necessary to carry a roadway across, and on condition of the side walls of the arch being at least 7 feet 4 inches in height. — Allans v. Mags, of Rutherglen, 4 P. 269 (1801) ; Aff. 3. A servitude of road alleged to be constituted by usage for forty years, but the road having been ploughed up for twenty or thirty years previous to action brought, held not established. — Hill v. Ramsay, 5 P. 299 (1810); Aff. 4. The claimant of a servitude of road by prescription must state definitely the extent of his claim, and the purpose for which the road is required, even when it leads to the sea-shore ; and he must support it by evidence of use of himself, or tenants, or servants, though, had it WHALE FISHING. 331 been by grant, the evidence of others would have been admissible. — Earl of Morton Y. Stuart, 5 P. 720; 1 Dow, 91 (1813); Bev. 5. A right of way may be acquired by forty years' use at any time, and if so acquired, it is not lost by subsequent interruptions not acquiesced in. Use for as far as memory could reach (thirty-four years) prior to 1789, when an interruption was attempted, held to warrant a presumption of forty years' possession previously. — Harviev. Rodgers, ^W.^8. 251 ; 3 Bligh, N. S. 444 (1828) ; Aff. 5 ;Sf. 917. 6. On an averment of being in the habit of using a road, and having occasion to use it, it is competent for an individual to bring a declarator of right to use it. Opinion, that one of the public may bring a decla- rator to establish a public right of road. — Duke of Atholl v. Torrie, 1 M'Q. 65 (1852) ; Aff. 12 D. 328. 7. A right of way must be between public places, but it is sufficient if the terminus be a public way. If the witnesses prove public usage for ni3^y years anterior to a certain date, there is a presumption of fact, in the absence of counter-evidence, that it extended to forty years, and so established the right, and evidence of subsequent interruption for less than forty years will not destroy the right, though it may be evidence against its ever having been constituted. A private Act establishing a tow-path does not take away an existing right of way. — Campbell v. Lang, 1 ilf'Q. 451 ; 2 Stu. H. L, 76 (1852) ; ^/. 13 D. 1179. Young V. Guthhertsmi, 1 M'Q. 455 (1852) ; Aff. 14 D. 465. See Shebipp, 4 — Trust, 55, 56. WHALE EISHING. 1. On a whale being struck, and afterwards getting loose, it becomes the property of the first subsequent striker whose harpoon remains fast till it is kUled. — ^cZrfwora v. Row, 3 P. 334 (1794) ; Bev. 2. The rule that a whale after being harpooned becomes subject to be captured by another vessel if the line becomes detached from the boat which first struck it, is general in the North Sea, and is not restrained in any place by an alleged local custom of attaching an in- flated skin to the end of the line before it is cut adrift from the first hosX. — Aberdeen Arctic Go. v. Sutter, 4 M'Q. 355 (1862) ; Rev. 23 D. 465. S32 WILL. [Character. I. Character p. 332 II. Interpretation, . . . 333 III. Etob of Approbate and Ebprobatb, .... 334 IV. Conditio si sine Liberis, 334 WILL. Leoacibs, p. 335 1. Institution and 8ubstitution,335 2. Conditioned, 336 3. Satisfaction omd Compensor tion, 336 4. Pa/yrmnt, . . . . 337 Sec also Foreign (Wilh). I. Character. 1. The removal into his own custody, hy the beneficiary, of a testator's mortis causa deeds, two days before the testator's death, is presumed to be by the testator's direction, and the deeds are presumed to contain the last will, on none later beiag found, though some evi- dence is given of an apparent iaconsistent intention on the testator's part. — Schaw v. Houston, Robert. 552 (1726) ; Aff. 2. A heritable debt secured by adjudication being conveyed to trustees for certain purposes, reserving power to alter, it may be carried to the purposes expressed in. a wiU executed subsequently. — Willock V. Ouchterlony, 3 P. 659 (1772) ; Aff. M. 5539. 3. A will set aside which was prepared by the sole executor and legatee under it, a stranger in blood to the testator, and brought by him to the house of the testator, when on his deathbed, at which time he also burned, without authority from the testator, a prior wiU, although the solicitor who prepared the second will, and witnessed its execution, deponed that the testator was of sound mind when he exe- cuted it. —Fyfe v. Williamson, 3 P. 478 (1796) ; Aff. i. A paper, holograph and signed, being instructions for a codicil, sent to the law agent of the deceased, and called " my codicil," yet being evidently in reference to a codicil to be prepared and incomplete, held not testamentary. Observed that in the case of a wiU to affect property in England, the Court of Session ought not to decide on its validity before it is proved in England. — Munroy. Goutts, 1 Dow, 437 (1813) ; Eev. 5. Any person may prescribe to himself solemnities of execution of a will beyond what the law imposes, and therefore if he states that he has set his hand and seal to his will, it will be bad if not sealed, and held to be cancelled if the seal seems to have been cut off, with the in- tention (which may be gathered from other facts) of cancelling it. — NasmythY. Hare, 1 S. Ap. 65 (1821) ; Eev. 6. A probative testament having directed bequests to be paid by the executor, as directed by a letter signed by the testator of the same date, and a letter being found corresponding in character and date, but not Interpretation.] WILL. 333 holograph nor tested, the letter is part of the will, if it is the one re- ferred to, and -whether it is so is a question for a jury on the evidence. — Inglis Y. Harper, ^ W. ^ 8. 785 (1831) ; Rev. 6 S. 864. 7. When a domiciled Englishman made a will bequeathing heritage in Scotland, with other provisions, and on finding it would not suffice to pass the heritage, made a proper disposition of the heritage, which referred to the bequest of a personal fund ia Scotland made by the will, and then made a second wiU, not expressly revoking the fia'st, and referring to the disposition ; held that the second will, through these references, either kept the first in force to that extent, or that the statement of intention contained in the reference was a sufficient de- claration of bequest. — Yeats v. Thomson, \ S. ^ M'L. 795 ; 3 01. 4^ Fin. 544 (1835) ; Aff. 10 S. 565. 8. A number of separate testamentary writings of different dates, some prepared by professional men and others not, several designated as the " last will," but none expressly revoking nor wholly inconsistent with the others, held to constitute together the wiU of the deceased. Costs ordered to be paid out of the fund. — Stoddart v. Grant, 1 M'Q. 163 ; 1 Stu. 1069 (1851) ; Rev. 11 D. 860. 9. A testamentary writing alleged to be holograph of the testator, must be proved to be in his handwriting before being admitted to con- fi^rmation ; it is not enough that it bears to be signed by him, and appears to be in the handwriting of the party signing. — Andersons. GiU, 3 M'Q. 180 (1858) ; Aff. 10. A will is not cancelled by erasure, unless the purpose was to can- cel it. Opinion that in a holograph writing the words erased may be looked at for the explanation of what remains. In a wiU the omission of a word by evident clerical error may be supplied by the word ap- pearing, in a subsequent codicil, to have been evidently supposed to have been used in the will. The expression of a wish is equivalent to a direction or bequest. — Mags, of Dundee v. Morris, 3 M'Q. 134 (1858) ; Rev. 19 JD. 918. See Deathbed, 12, 19 — Deed. II. Inteepretation. 11. A legacy of a half-year's wages to all servants applies only to those who are servants at the testator's death. — Robertson v. Marquis ofAnnandale, Or ^ St. 293 (1740) ; Aff. 12. Eesidue held in the case to signify residue as at the death of the testator. — Little u. Little, 2 S. Ap. 202 (1824); Aff. 13. Meaning of particular expressions must be limited, if requisite, to permit general intent to receive effect. (Per Lord Eldon.) — Earl of Stair V. Stair's Trs., 2 W. ^ S. 623 (1827). 334 WAY. [Conditio si sine Liberis. 14. The residue being given to the " nearest relations," and the testator having in the will given gifts equally to his relations of the half blood as of the full blood, the former are included in the term. — Scott V. Scott, 2 M'Q. 281 (1855) ; Aff. 14 D. 1057. See also Hbies — Vesting. III. Approbate and Ebprobate. 15. The creditor in a debt on ■which adjudications had been used, conveyed it to his brother in liferent, and to his nephew in fee, reserv- ing power to alter ; by will, subsequently, he gave the residue of his personal estate to the brother in Hferent and nephew in fee, on condi- tion of the nephew's paying to the brother during his life the interest both on the debt above stated, and also the interest on three other bonds on which adjudication had also passed ; and the brother by will bequeathed to others all his personal estate, including rents, interest, and profits due at the time of his death. Held that the brother was entitled to the interest due to his death on all the bonds, and though it had not been paid, it was carried by his will. — Willock v. Ouchter- lony, 3 P. 659 (1772) ; Eev. M. 5539. 16. A party who has taken benefit under a will for sixteen years is not entitled to reprobate it in order to claim as heir-at-law. — Martin V. Martin, 3 P. 421 (1795) ; Aff. 17. A general settlement having burdened the disponee with legacies, and contained no procuratory or precept, and the disponee having repudiated the settlement, but intromitted in part with the funds, and accepted a gratuitous disposition from the heir-at-law who made up titles, he is liable for the legacies. — Wyllie v. Boss, 2 W. ^ S. 576 (1827); Aff. i S 172. See FoEEiGN, 8-12. rV. Conditio Si Sine Liberis. 18. A grandchild held to fall within the doctrine d sine liberis, though the settlement under which she claimed was made in favour of " children alive at my death," and she was bom and her father had died long before the grandfather's death, who had also, when her father was married, apportioned to him his share of the then estate. — Booth V. Booth, 6 W. & S. 175 (1832) ; Aff. 9 S. 406. 19. In the case of provisions granted to children by a trust-deed, the condition si sine liberis applies to a provision of the residue as well as of specific legacies, and whether there is a substitution ia default of the child or not, and also to the issue of a chUd predeceasing, although the gift was not made to the child and his heirs, and the testator Legacies.] WILL. 335 knew of their existence, and although in other cases he had expressly given the provision to the child and his heirs. — Dixon v. Dixon, 2 Robin. 1 (1841) ; Aff. 14 S. 938. 20. Under a clause of survivorship in a bequest to a number of persons, although the son of one dying before the period of vesting takes his father's share, he does not participate in the division of other lapsed shares. — Young v. Rdbertsm, 4 M'Q. 337 (1862) : Aff. 22 D. 1527. V. Legacies. 1. Institution and Substitution. 21. A general Settlement of personalty to A., and in case of A.'s decease, to B., carries the right to B. in the case of A.'s death before taking up the succession, and is not affected by a prior general settle- ment by B. of all effects which may belong to him at death. — Camp- bell V. CampbeU, Cr. & St. 343 (1743) ; Aff. M. 14855. See 26. 22. A testator having bequeathed one-fourth of his estate to his wife absolutely, and the remaining three-fourths among different families of nephews, declaring " that if any of my nephews should die before my will takes place, I bequeath the share of him so dying to his brother or brothers-german, and the heirs of his or their bodies, to be between or among them equally divided," and having then declared " that such three-fourths shall not take place, or be paid tiU after" his wife's de- cease, if she continued single, and having given the interest of it for life to her ; held that the legacies to the nephews vested on the testator's death, though his wife survived, but that the substitution in favour of the brothers took place in the case of a nephew surviving him, but dying intestate before his wife, without leaving issue, and the legacy being moveable, neither service nor confirmation was necessary to make the substitution effectual. — DuTican v. Fowke, 2 P. 290 (1773); Aff. M. 8092. 23. A provision to grandchildren in a trust-deed, equally divisible, with clause of survivorship as to the share of any one deceasing, so far as it remained unpaid, and declaration that the share should become due and payable at the respective ages of twenty-five years, is only a condi- tional institution, and the shares vest absolutely at twenty-five, though not paid by the trustees at that date. — Graham v. Russell, 3 P. 210 (1791);^/. 24. A testator on the same day bequeathed by will his personal estate to his only son, and by a separate deed declared that in the event of his real estate going to a collateral heir, through failure of the issue male of his body, he disponed the furniture, &c., in his house to 336 WILL. [Legacies. the heirs to succeed him in the estate. Held that the disposition to the heirs of entail was only a conditional institution, and that the son, on surviving,, was entitled to dispose of the furniture hy his wiU. Heir- ship moveables descend to the heir of Une, excluding the heir of entail. — Lockhart v. Boss, 6 P. 31 (1814) ; Aff. 25. A declaration appended to a legacy, given by the joint will of husband and wife, that in the event of the death of the legatee before the death of the survivor of the testators, the .legacy should faU to the legatee's executors and nearest of kin, makes the nearest of kin condi- tional institutes, and the legacy does not pass to the assignee of the predeceasing legatee. — Lawson v. Steioart, 2 W. ^ S. 625 (1827); Aff. 4 S. 384. 26. A provision to a brother and sister to be paid at majority, with direction that, on the death of either, the survivor shall succeed to the whole, and in the event of the death of both without children, a third party should succeed, is a conditional institution in favour of the third party, which is evacuated by the survivor of the brother and sister attaining majority, though djdng before receiving payment ; and a pro- vision to a grandson, payable on his attaining majority, but failing his attaining majority, or specially disposing it thereafter, then to an- other, but which on his attaining majority he has taken steps to obtain payment of and realise, becomes vested in him, and on his death before receiving payment, passes to his representatives. Observations on Campbell v. Campbell, 1 Cr. & St. 343 (No. 21), and Brown v. Coventry, BeU's Ca. (1792). — Greig v. Johnston, Q W. Sf S. 406 (1833); Aff. 9/S. 806. See Conquest, 3 — Vesting. 2. Conditional. 27. A gift being made subject to a condition of forfeiture, in the event of the donee interfering with the management of certain trustees, and the trustees never having acted, the forfeiture cannot take place. — Charteris v. Lord Advocate, Cr. 4r St. 463 (1750); Aff. M. 7283. 28. A legacy given on the narrative that the ultimate heir-at-law wiU. succeed to all the entailed and other estates, is not payable if he in point of fact succeed only to the entailed estate, the rest being con- veyed by an intermediate owner to the legatee himself. — Moncreiff v. Skene, \ W. ^ S. 672 (1825) ; Rev. See Husband and Wife, 23, 24, 25 — Provision, 11. 3. Satisfaction and Compensation. 29. It being found that there was not evidence of a sum being due Legaeies.} WILL. 337 by a testator as a debt, for work done, it was held that supposing sUcb a debt existed, there was no ground for regarding a legacy to the claimant as to be imputed towards the extinction of the debt, but no expenses were given on either side. — Arrol v. Spaden, 1 S. Ap. 164 (1822); Rev. F. C. Uth Jan. 1819. 30. Circumstances in which bills blank endorsed and given by the testator on deathbed, were held to be in satisfaction pro tanto of a bequest of half his estate. — Buchanan v. Crawford, 2 8. Ap. 445 (1824) ; Aff. 1 S. 346. 31. Compensation, when pleaded against a legacy, must be by a liquid debt established by undoubted evidence. — Reid v. Hope, 1 W. # S. 172 (1825) ; Rev. 2 S. 408. 32. A testator having given a legacy of L.1500 to each of his children nominatim in liferent, and their children respectively in fee, with proviso that any sum he might thereafter give in his lifetime should be imputed in part satisfaction of this sum, and having given L.IOOO to one of his children, who predeceased him; held that the children of that child could not claim the L.1500, except under deduc- tion of the L.IOOO so given. — Hutchison v. Skelton, 2 M^Q. 492 (1856) ; Rev. 15 D. 570. 4. Payments. 33. A party conveyed his whole estate, heritable and moveable, to trustees for payment of certain legacies, with power to seU certain lands and stock specified for payment of the legacies, the balance to be invested in land and entailed, and the remaining lands to be also entailed ; and the personal property left being insufficient to pay the debts, so that the whole lands, including some which were directed to be entailed, were brought to a judicial sale. Held that the legatees were entitled to rank for full payment on the balance of the price after payment of debts, though the price of the lands directed to be sold should prove insufficient. — Hamilton v. Rennet, 6 W. ^ S. 533 (1833) ; Aff. 10 S. 330. 34. By a mortis causa settlement certain annuities were given, with provision for abatement if the funds proved insufficient, and for dis- posal of the residue if the funds were in excess, and by a subsequent clause legacies were given in the event of the funds being of a certain amount. Held that the legacies had in that event priority over the annidties, and that the latter must abate. — Pearson v. Gasamajor, M'L. 4- R. 685 (1839) ; Rev. 15 S. 275. 35. When a settlor leaves land to be sold for the payment qf annui- ties and legatees, if the annuitants do not compel the sale, they are not 338 WRITTEN DOCUMENT. [Interpretation of. entitled to have any deficiency whicli may arise from that neglect made good out of the interests of those residuary legatees who would have had a share had the property been converted at the proper time. — (Per Lord Cottenham.) Terms of trust-deed which were held in ac- cordance with this rule of law, and under which a surviving annuitant was held entitled to only the free income of one-half of the trust-fund, though less than the iatended annuity, while the other half was divisi- ble, on the lapse of the other annuity, among the residuary legatees. — Casamajor v. Pearson, 2 Eobin. 217; 8 Cfl. ^ Fin. 69 (1841); Rev. F. C. 6th June 1840. See Trust. See Husband and Wife, 35. "WEITEES TO THE SIOFET This body forms a corporation, but has not power to increase their legal fees. The members have the exclusive privilege of preparing and signing Signet letters, and signing summonses passing the Signet, and therefore either to prepare or revise these last for the usual fees, but they have no exclusive privilege in regard to advocations or suspensions. They may enter into partnership with others as regards the branches of their business not exclusive, but not as to their exclusive privileges. — Soc. of W.S. V. Soc. of S.S.C., 4 P. 326 (1802) ; Aff. M. CoU. of Justice, Ap. 'So. 1. See CoEPORATioN, 2 — Couet of Session, 3 — Law Agent, 9. WEITTEF DOCUMENT. I. Interpretation of, . p. 338 | II. Parole Evidence, . p. 339 I. Intbrpebtation of. 1. The dispositive clause being to the disponee and his heirs what- soever, and the procuratory to bim and his heirs male, the latter controls and explains the former, and the heir male excludes the heir of line. — HaUiday v. MaxweU, 4 P. 346 (1802) ; Aff. 2. A clause in a deed must be read in connection with the whole deed. The clause, " The division- to run thus as 9 to 10, — i.e., for every L.IO that shall fall to the share of each of my sons, my spouse and Parole Evidence.] WRITTEN DOCUMENT. 339 three youngest daughters shall he nine," held to give the proportion of L.9 to each of the daughters and the spouse, and not among them as a class. — Brodie v. Brodie, 6 P. 270 (1817) j Rev. 3. Words of fixed legal meaning receive that construction in spite of apparent intention. (Per Lord Eldon.) — Dewar v. M'Kinnon, I W. 4 S. 161 (1825). 4. Eecitals are admissihle to explain the operative part of a deed, but not to enlarge or control it, and they may prove the contents of a lost deed, or the nature of a bargain not reduced to writing. Inter- pretation of interest of partner under deed without liability for loss. — Mackenzie's Trs. v. Mackenzie's Trs., 5 W. ^^ S. 796 (1831) ; Aff. 8 S. 781. 5. Construction of an agreement respecting an assignation of bUls of lading. — Guthrie v. Anderson, 4 W. & S. 20 (1830) ; Aff. 5 S. 694. 6. Terms of an agreement to discharge claims in respect of illegal proceedings, which were held to bar the party dischargitig from claim- ing relief against them in an action brought against him by a third party. —Craig v. Duke of Hamilton, 7 W. & S. 483 (1834) ; Aff. 9 S. 632. 7. When a clause comprises provisions intended to meet a variety of different cases, the true mode of interpretation is to look at what it directs in the particular event which has happened, without taking account of obscurities which it might have presented in a different BYent.— Dill v. Uarl of Haddington, 2 Bobin. 298 ; 8 CT. ^ Fin. 168 (1841); 2D. 214. See, Heirs — Statute — ^Will. II. Parole Evidence. 8. Two testamentary deeds, nearly identical in terms, but differing in amounts, being found in the repositories of a deceased person, it is competent to examine the attesting or other witnesses, in order to ascer- tain whether the later supersedes the former. — Falconer v. Falconer, Robert. 377 (1721) ; Rev. Falconer v. King's College Aberdeen, Robert. 397 (1722) ; Rev. 9. Peuars of building land, to whom apian of the adjacent grounds, laid out as pleasure-grounds, had been shown by the superior at the time when the lands were advertised to feu, with an undertaking that no buildings should be erected on the proposed pleasure-grounds, held entitled to interdict against streets being laid out on the proposed pleasure-grounds, though in their charters no notice was taken of this stipulation. — Deas v. Mags, of Edin. 2 P. 259 (1772) ; Rev. See 12. y2 340 WBITTEN DOCUMENT. [Parole Evidence. 10. A lease contained a clause binding tiie tenants to remove at cer- tain breaks, in the option of the lessor and the lessee ; remit to the Court to admit evidence to ascertain the meaning of the parties. — Lord Falconer v. Taylor, 2 P. 373 (1775) ; Rem. 11. A sale of goods to be delivered being made by writiag, payment being stipulated for in biUs at three months, and a third party guaran- teeing their payment ; remit to allow a prqpf of allegations that it was understood the bills should be discountable, and that they would be discounted by a banker, stated to be also a partner in the guarantor's house. — Stein Y. Stewart, 3 P. 462 (1796); Rev. 12. Exhibition of a plan to intending purchasers, showing certain houses removed beyond the limits of the seller's property, but which is not referred to in the charters granted, does not amount to a warranty or make the plan part of the contract. Observations on Deas v. Mags, of Ediuburgh (So. 9). — Heriot's Hospital v. Gibson, 2 Dou; 301 (1814) y Rev. F. 0. I7th Nov. 1814, note. 13. Ground being feued in lots for building, as delineated on a plan, in which no provision was shown for separating the lots, or any stipulation as to the buildings to be erected, a feuar of one lot is not liable to be restrained at the instance of another from erecting build- ings, not forming a legal nuisance, on the back area of the house first erected on his lot. Observations on the cases of Deas v. Mags, of Edinburgh and Heriot's Hospital v. Gibson (Nos. 9 and 12). — Gordon V. Marjorihanks, 6 P. 351 ; 6 Dow, 87 (1818) ; Aff. F. C. I7th Nov. 1814, note. 14. Usage, contemporaneous and continued, is admissible to expound the meaning of old instruments. — Heriot's Hospital v. McDonald, 4 W. ^ S. 98 (1830) ; Aff. 9 S. Teind Ca. 156. 15. A bargain being constituted by letters, an undated paper, written by one of the parties' agents, stating professedly its terms, but not sub- scribed by the other party, is inadmissible to explain it, — Pentland V. Lady Gwydir, i W. Sf S. 322 (1830); Aff. 16. The question of what is intended to be conveyed by a particular expression in a deed is neither a latent nor a> patent ambiguity, but always a question of evidence. (Per Lord Cottenham..) — Logan v. Wright, b W.^ S 242 (1831) ; Aff. 8 S. 247. 17. Action being brought by a passenger in a canal boat agaiast the canal conipany and the owner of a boat on the canal, jointly and severally, for reparation for a hurt caused by a collision, and it being compromised by the counsel for all the parties, by a written agreement that the defenders should pay the pursuer a certain sum, and all ques- tions between the two defenders should be reserved entire, and in mutual actions of relief by the two defenders, the jury having foimd Parole Evidence.] WRITTEN DOCUMENT. 341 that neither was in fault j held that the agreement imported that in these circumstances each defender should pay half the sum for which the original action was compromised, and that it was not competent for the one party to prove that he had consented only on the understanding that he should he wholly relieved from payment, unless he was found liable in. the action of relief — Johnston v. Edin. and Glasg. Union Canal Co., 1 8. ^ M'L. 117 (1835) ; Aff. 12 S. 304. ' 18. A clerk having refused a salary offered as too low, but worked for several years, claiming the rates usually paid according to the work done, but which his master never paid in full, he was held entitled to a further allowance, based on the practice of the profession, but subject to a certain deduction. — Baillie (Clyne's Trs.) v. Stewart, 2 S. f M'L. 45 (1838) ; AU. 11 S. 727. | -^^ 19. Evidence as to a written contract is admissible, not to prove its ' meaning, but to ascertain if it formed a contract at all — Stewart v. Menzies, 2 RoUn. 547 (1841) ; 8 CT. ^ Fin. 309. 20. Evidence is admissible to prove that an absolute conveyance was intended as in security only, such evidence not being to interpret the deed, but to control it by a superadded equity. There is a presump- tion that an assignation of poKoies of assurance of some standing for a debt is in security only. — Scot. TJn. Ins. Co. v. Marquis of Queens- berry, 1 S. Bell, 183 (1842) ; Aff. 1 D. 1203.- See Trust, 1, 7, 8. 21. A mortis causa deed by a mother in favour of her eldest son, bearing to be in consideration of his having granted her a bond of life- rent provision, and not containing a clause of revocation, and delivered to the joint agent of both parties, is irrevocable, and prior letters cannot be referred to for the purpose of proving that the son stipulated only for a portion of the personal estate, though they may be referred to, to prove that the statement in the settlement that it was granted for onerous causes was correct. A bill indorsed by the mother to another party, subsequent to the settlement, was also reduced, — Stewart v. Stewart, 1 S. Bein9Q {I8i2) ; Aff. 22. Letters written simultaneously with execution of a deed of agree- ment held admissible in construing it, but in the circumstances not to import an alteration. — Ferris v. Ferrie, 2 Stu. H. L. 1 (1852); Aff 23. The assignor of a written contract cannot give evidence of any parole understanding between the original contractors, but he may of an understanding attached to the terms of the document in the usage oi \,Ta.dLQ. — Mackenzie v. Dunlop, 3 M'Q. 22 (1857); Aff. 16 D. 129. 24. Evidence of mercantile custom consists in evidence of a number of particular instances, and evidence of any one instance is admissible 342 WRONGOUS IMPRISONMENT. in law, however slight in fact to weigh with the jury. — Mackenzie v. Dunlop, 3 M'Q. 22 (1857) ; Aff. 16 D. 129. 25. A verbal permission hy the lessor to waive a condition of a writ- ten lease, if followed hy operations consequent on such waiver, may he proved hy parole, and this is the case even though the operations have gone beyond the alleged permission. — Bargaddie Coal Go. v. Wark, 3 M'Q. 467 (1859) ; Rev. 18 D. 112,. 26. A witness to prove usage of trade cannot, in cross-examination, be asked what the receiver of a letter would be entitled, according to mercantile usage, to understand from its terms. — Kirkland v. Nisbet, 3 M'Q. 766 (1859); Aff. 21 D. 1. 27. Parole evidence is admissible to prove what took place at a meeting of certain parties with their joint law agent, at which a bond of security prepared by him was signed by them, in an action of damages against him for rendering such security unavailable by himself taking a preferential security, for which he was subsequently sued by one of the parties. — ffem?wi7 V. M'Alister, 4 Jf'Q. 449 (1863; Aff. 24 D. 956. See Bank, 8 — Bond, 5, 7 — Deathbed, 12 — Husband and Wife, 50 — ^Infeftmbnt, 13 — Landlobd and Tenant, 51, 52, 68, 69 — Patronage, 11 — Pbincipal and Agent, 12 — ^Public Works, 1, 10, 12, 21— Statute — Trust— Will. WEONGOUS IMPEISONMENT. 1. A petition being presented to the Sheriff for warrant to search the house of the nearest relatives of a party jvst deceased for writings belonging to the deceased, charging these relatives with theft of the writings, and for warrant to bring the parties before him for examinar tion, and the warrant to apprehend being executed by an officer and a party of soldiers, the petitioner and Procurator-Fiscal are liable in da- mages. —Fyfe V. Williamson, 3 P. 478 (1796) ; Aff. 2. The date of delivery of a petition for liberation on bail is not conclusively ascertained by the date written on it by the clerk, but may be proved aliunde. The Lord Advocate's concurrence in an action for penalties for wrongous imprisonment is not necessary. The Stat. 89 Geo. III. c. 49, increasing the amount of bail, makes no change in the Stat. 1701. Eemit to consider other points under the Stat. 1701. Observations by Lord HoUand, in a legislative capacity, on the adminis- tration of justice in Scotland. — Andrew v. Murdoch, 2 Dow 401 (1814) ; Eem. M. Wrong. Impr. Ap. No. 3. WEONGOUS IMPKISONMENT. 343 3. Eemit to consider whether the appKcation for a orimiaal warrant must be on oath, and whether a committal " for further examina- tion, or till liberated in due course of law," is a warrant to which the Act 1701 applies, if it was hon&fide for further examiaation only. — Arbucklew. Taylor, 3 Dow. 160 (1815.) 4. Letters of intimation expede in the Court of Justiciary are inept for liberation of a prisoner confined imder charge of "a crime not cog- nisable in that Court, such as fraudulent bankruptcy. Query, "Whether the Statute applies to the Court of Session in any case ! — Duncan v. Lord Advocate, 1 W. & S. 608 (1825) ; Afif. 2 S. 132. See Mbditatio Fug^. GLOSSARY OF TECHNICAL TERMS OF COMMON OOCUEKENCE IN SCOTTISH LAW. Note. — In explaining Scottish terms, the corresponding terms of the Law of England have, for the sake of brevity, been used whenever their signification approached near enough to the meaning of the word under exposition to convey a correct general idea of its sense. But it will be remembered that, the laws of the two countries being different, their language, even though apparently identical, can never have exactly the same meaning. In explaining Judicial Procedure the language of Equity is generally used, as the Scottish jurisprudence in this respect has, in most cases, a closer affinity to the procedure in Chancery, than to that of Common Law. No word is explained unless its meaning, or the law which it implies, is essentially diflferent from its signification in ordinary language, or in the Law of England. ABBEY. The precincts of Holyrood Palace, Edinburgh, still affording protection against execution for debt. ABBREVIATE. Abstract of a decree of adjudication presented for regis- tration. The certificate of registration is written on the back of the abbreviate. ABIDE BY, TO. In an action to set aside an instrument as forged, the defendant is required to declare that he maintains, or abides by, its truth. ABSENCE, DECREE IN. Decree as prayed in the summons (see Action), made when the defendant has not entered appearance, or filed defences. It may be generally opened lip (set aside) by the Court, on the defend- ant filing a note before it is extracted, or if extracted (entered), by means of a suspension (see Suspension) or of an action of reduction within forty years. ABSOLVITOR. Judgment for the defendant. ACCESSARY ACTION. Supplemental suit. ACCOUNTANT IN BANKRUPTCY. This office was created by the Statute of 1856. The Accountant's duty is to keep registers of sequestra- tions, and of the several steps in each ; to superintend the conduct of trustees, and to report to the Court of Session any neglect or contraven- tion of duty on their part. No money passes through his hands. He is appointed by the Crown ; is paid by a salary ; and no fees are exacted from the bankrupt's estate in respect of any of his duties. 346 GLOSSARY. ACCOUNTANTS. These now form in Scotland a body incorporated by Royal Charter. Members of this body are frequently chosen as trustees in sequestrations. They are also frequently appointed judicial factors (receirers) ; and matters of accounting in suits, which in England would be investigated before a chief clerk in Chancery, are often referred to them for examination, and that they may make a report on them to the Court. ACCRESCE, TO. To accrue by survivance ; or, to relate back to and confirm, a prior proceeding or conveyance. ACCRETION. Relation; ACT AND WARRANT. An order of Court, such as one appointing a receiver, or conferring on him special powers. ACTION. Ordinary actions in the Court of Session are commenced by a " summons." This, besides being the writ citing the defender (defendant) to appear in Court, contains the " conclusions of the action" (grayer) ; a " condescendence," or statement of the facts on which the suit is founded, drawn up in separate paragraphs as in a biU in Chancery ; and, lastly, a note of the " pleas in law," or legal propositions, which the pursuer (plaintiff) is prepared to maintain in support of his prayer. The summons is served on the defender (see Citation), and on expiry of the " induciae" (period of notice) it is " called," i.e., entered in the " calling list," under the title of the Lord Ordinary to whom the cause is to be attached. , The calling list is printed and published at fixed periods, generally once a week, and the defender must enter appearance within one day after the publication of the list in which the summons is entered. After appearing he must lodge (file) defences. These consist of " answers" in the form of a direct admission or denial of each assertion in the condescendence of facts in the summons, followed by a " statement of facts" on the part of the defender, and a note of his " pleas in law." Every species of defence, whether matter of demurrer, plea, or answer, must thus be at the first set forth. If satisfied that these pleadings correctly state their respective cases, the parties "close the record on summons and defences ;' ' but if either desires to add to or alter his pleading, he obtains an order to " revise ;" and after both parties have revised, the " record is closed," and the case set down for hearing. When heard, the Lord Ordinary pronounces an interlocutor (decree), disposing of the whole case. Either party may appeal against this to the Inner House by " reclaiming note." (See Court of Session.') Most cases are decided without the aid of a jury, either the facts not being in dispute, or the judge himself determining them on documentary evidence filed by the parties, or on evidence taken orally before himself, or by commission, on points on which he has directed proof to be adduced. But actions for libel, nuisance, and for damages must, and several others may, be tried by a jury. In such cases the issues to be laid before the jury are prepared by the parties after the record is closed, or settled by the Court if they cannot agree 05 the form. In some cases the parties are allowed by consent to select a few individuals to act as a jury. If the defender fails to appear, the pursuer may " take decree in absence." (See Absence.) If he fails to file any pleading or other docu- GLOSSARY. 347 ment ordered by the Court, the pursaer may " take decree by default." If the pursuer fails to prosecute the suit after service, and before it has been set down for procedure before the Court, the defender may have it dismissed by Protestation. ACT OF GRACE. An enactment requiring a creditor to support in prison a debtor whom he has arrested, on condition of the debtor assigning his whole goods for the benefit of his creditors. ACT OF PARLIAMENT. Acts of the Parliament of Scotland before the Union are cited by year and chapter, thus Act 1686, c. 5, ACT OF SEDERUNT. General Rules or Orders made by the Court of Session. ADHERE, TO. To confirm the judgment of an inferior Court. ADJUDICATION FOR DEBT. This is what is commonly meant when the word adjudication is used alone. It is an action for transferring to a personal creditor the real estate of the debtor in satisfaction of the debt — as by a writ of elegit in England. It can proceed only on an ascertained and past-due debt. Adjudications commenced within twenty days of the commencement of the first adjudication are conjoined with it, so as to share in its benefits. Those not so commenced must be separately pro- secuted ; but, if decree is obtained within a year of the first decree, they are entitled to share equally with the first and with each other, called rwnhing pari passu. The lands are redeemable by the debtor within three years, called " the legal "-^^or within forty years, if the adjudger has not meanwhile obtained decree of foreclosure, called " decree of declarator of the expiry of the legal." ADJUDICATION IN IMPLEMENT. When an agreement to convey, or a will, or conveyance of real property, is imperfect in feudal form, but good in substance, specific performance may be enforced by the grantee, purchaser, or devisee, by an action styled an adjudication in implement, the decree in which is equivalent to a conveyance. ADJUDICATION IN SECURITY. This is obtained on a debt not yet due, or uncertain in amount, and only on proof that the debtor is ap- proaching insolvency, or that other creditors are adjudging. It is ranked pari passu with other adjudications, but it is redeemable at any time, and cannot be a ground of foreclosure. ADMINICLE. Documentary (or sometimes parole) evidence in a suit to set up a lost deed. (See Proving the Tenor. } ADMINISTRATION, RIGHT OF. The right of a husband to the interest of his wife's real estate. ADMINISTRATOR-IN-LAW. The title of father as guardian of his children. ADVOCATE— Barrister-at-Law. (See Lord Advocate.) ADVOCATION. Appeal, or removal as by certiorari, of an action from an inferior Court to the Court of Session. AGENT. Solicitors are frequently called law agents, or simply agents. ALIMENT. Alimony of a wife, or maintenance of a child or imprisoned debtor. (See Act of Orace.) ALLENARLY. Only. 348 GLOSSARY. ANNUAL RENT. Interest, generally applied to interest of money on mortgage. APPARENT HEIR. This term is restricted (except in the Entail Act of 1848) to the heir after the death of his ancestor, but before he has "made up his titles," i.e., completed the feudal title to the estate in his own person. (See Title to Land, 2 and 3, c.) APPREHEND, TO. To arrest. APPRISING. The old form of adjudication for debt, q. p. APPROBATE AND REPROBATE, RULE OF. Doctrine of election. ARRESTMENT. An attachment of money or goods belonging to the. debtor, as owing by or in the hands of a garnishee. But it may not only be obtained after judgment, when it is called an Arrestment in Execution, but during the progress of an action, when it is called an Arrestment on the Dependence, — or at the commencement of an action against a foreigner, when the Court has not otherwise jurisdiction over him, and when it is therefore called an Arrestment ad jurisdictionem fundandam. In any case it may be "loosed" on application of the debtor, either simply, when it nad been improperly obtained, or on the debtor deposityig the amount of the debt in Court, or giving security for it. If not loosed the arrestment is carried into effect, on the debt being established, by an action against the holder of the money or goods, called an action of forthcoming. ASSIGNATION. Assignment. In Scotland choses in action may be legally assigned. Intimation to the debtor is necessary to render an assignation valid as against third parties. ASSOILZIE, TO. To give judgment for the defendant. AUDITOR. Taxing master. AUGMENTATION. A suit by a beneficed clergyman for an increase to the living to be decreed out of the tithes in the hands qf lay impropriators. AUTHOR. The party from whom a title is derived. AVIZANDUM, TO MAKE,— or, TAKE TO. To consider before giving judgment or making an order. To make great avizandum is where a Lord Ordinary in the Court of Session transfers a cause before him to the Inner House. (See Court of Session.) AWARD OF SEQUESTRATION. Adjudication of Bankruptcy. BACK BOND. A deed executed to limit the operation of an ex facie absolute conveyance, e.g. declaring it to be in mortgage or trust only. BAILIE. Alderman in a borough, or steward of a manor. BAIRNS. Children. BANK AGENT. Manager of provincial branch of a bank. BANKRUPT. This word, used alone, properly signifies one whose estates have been sequestrated, i.e., who has been adjudged bankrupt. But it is often used as a contraction for notour (notorious) bankrupt, i.e., one who has committed an act of bankruptcy, but who has not been adjudged bankrupt. All executions levied on the goods of a debtor within two months before, and four months after, his becoming notour bankrupt, are ranked pari passu, i.e., held as of the same date, and confer a right to an equal share in the proceeds of the goods in execution. Assignments GLOSSARY. 349 and conveyances and securities given to creditors after, or within sixty days before, notour bankruptcy, are voidable by prior creditors, nndei the Act 1686, c, 5, or at common law if fraudulent. (See also Oonjimct and Confident.) BARONY. Lands held direct of the Crown with, formerly, privilege oi local jurisdiction, &c. BASE FEE. Land held in sub-infeudation of the vendor. BEFORE ANSWER. Before deciding the point of law. BEHAVIOUR AS HEIR. Taking up the inheritance, which involves liability for the predecessor's debts, though beyond the assets. BENEFIT OF DISCUSSION. The right that a creditor shall not pro- ceed to execution against his debtors, except in the order of their legal liability. BILL CHAMBER. A permanent Court attached to the Court of Session, in which several forms of action originate ; from which writs of execution, injunction, &c., issue, subject to the review of the Court of Session. The junior Judge of the Court of Session sits in the Bill Chamber during the sitting of the Court ; in vacation the other Judges sit in it by rotation. The Judge for the time being is entitled the Lord Ordinary on the Bills. BONA FIDES. No suit for mesne rents or profits lies against a party who held hona fi.de on a title ultimately found bad. BOND AND DISPOSITION IN SECURITY, The common form of mortgage deed. (See Title to Land, 5.) BOX DAYS. Days appointed in each vacation for the filing of pleadings, &c. in Court. BURDEN. Incumbrance. BURDEN, REAL. A charge of money on real estate, or a covenant run- ning with the land. BURDENS, PUBLIC AND PARISH. Rates and taxes. BURGAGE TENURE. A peculiar tenure of land in boroughs. BURGH. A borough holding a charter of incorporation from the Crown. BURSARY IN A COLLEGE. Exhibition. CALUMNY, OATH OF. A deposition on oath by a party to a suit (seldom required except from the plaintiflTin divorce suits) that he believes he has good cause of action. CAPTION, LETTERS OF. Writ of ca. sa., now superseded by proceed- ings on a " Charge" q. v. CASE. A written argument ordered by the j udge in causes of difficulty. CASH CREDIT. A current account, limited to a fixed amount, opened by a bank in favour of a party who has given the bank security by mortgage - or sureties for the amount. CASUALTIES. Fines and incidents due to the lord of a manor. (See Title.) CASUS AMISSIONIS. The reason of a deed being lost, evidence of which is generally required before it is allowed to be set up by secondary evi- dence. (See Proving the Tenor.) CAUTION. Security. Cautiokeb. Surety, Actions on this ground are subject to a limitation of seven years. 350 GLOSSARY. CERTIFICATION. A formal notice of what will follow in case of default. CESSIO BONORUM, frequently abbreviated into Ciissio. A judicial pro- cedure resembling that under the Insolvency Acts. It can be commenced only by a debtor who is or has been under, or is threatened with, arrest. The debtor is examined in Court, after notice to his creditors, and the Court may then pronounce decree of cessio, the effect of which is to free the debtor from liability to arrest for any prior debt, and to transfer his whole property, present and future, to a trustee, for payment of his credi- tors. The income of a benefice, salary of an office, half-pay of an officer, &c., are subject to this decree, such portion only being reserved to the debtor as in the opinion of the Court is necessary for his sustenance. CHARGE. A writ issued to require payment of a debt or performance of an obligation within a fixed time, called the " days of charge." The charge for debt proceeds only on a decree of a Court, either in a cause, or on a document containing a clause authorising it to be registered in the books of the Court " for execution," which is equivalent to a warrant of attorney to confess judgment. In bills of exchange, such a clause is held as implied. A charge is given (served) by an officer of Court, and the " charger " (person prosecuting it) may proceed to levy his debt upon the goods on expiration of the days of charge. But if he desires to arrest the debtor, he must obtain a further warrant from the clerk of the bills, if the decreee was by the Court of Session, or from the sheriff-clerk, if the decree was by the sheriff. Such warrant is granted as of course on proof of service of the charge. CIRCUMDUCTION OF A TERM FOR PROVING. A judge's order, closing the time for taking evidence in a cause. CITATION. Service made by an officer of Court, of a writ requiring ap- pearance. In actions, fourteen days must elapse between the citation, when given personally or at the dwelling-house, and the day for entering appearance. This period is called the inducise. When the party to be cited is abroad, he must be cited edictally, i.e., by notice in a register kept for the purpose and published periodically, called the Register of Edictal Citations. No judge's order is required for this, and on the elapse of the induciae, which in this case are twenty-one days, the case proceeds as if personal service had been effected. CLARE CONSTAT, Precept of. (See Title to Land, 3 c.) COGNITIONIS CAUSA, DECREE. Decree in an action for constituting a debt against the heir of the debtor, made after the heir has disclaimed his right to the succession. COLLATION. Bringing into hotchpot. COLLEGE OF JUSTICE. A corporation consisting of the judges, who are senators of it, barristers, officers of the Court, and higher classes of attorneys, which enjoyed some privileges, but never meets. COMMISSARIES. The old ecclesiastical court, now abolished. COMMISSIONERS OF SUPPLY. Commissioners of Land-tax, including nearly all the landowners in each county, and exercising the functions of the magistracy in regard to county rates, prisons, &e. COMMISSIONERS ON A SEQUESTRATED ESTATE. Three of the GLOSSARY. 351 creditors, elected by the general body of creditors, to advise with the trustee, superintend his proceedings, audit his accounts, fix the amount to be divided at each period, direct the sale of property, fix the amount of the trustee's commission, and perform other similar duties. The ofiice is gratuitous, and from their decisions appeal lies to the Sheriff or Court of Session. COMMON AGENT. The solicitor elected by the creditors to conduct an action of ranking and sale, q. v., or by the heritors in adjusting their several liabilities in an augmentation, q, v. COMMON DEBTOR. A person indebted to several creditors, who are suing him at once. COMMONTY. A Common. COMMUNION, GOOD^ IN. The personal property of husband or wife during the marriage not restricted to the separate use of either. They were formerly divisible, in certain proportions, between the children and the survivor on death of either husband or wife — now on death of the hus- band only. COMPEARANCE. Appearance. COMPENSATION. Set-off. COMPETENT AND OMITTED. An objection to the admission of an averment of fact or law on the ground that it might have been, and ought to have been pleaded at an earlier stage. COMPETITION. Actions by several creditors endeavouring to establish a preference. COMPOSITION. Fine paid on purchase to the lord of the manor. CONCLUSIONS OF AN ACTION. The prayer. CONDESCENDENCE. Statement made in the summons (i.e., declaration or bill), or afterwards ordered by the Court, of facts, on which an action is founded. It is divided into distinct heads or articles, and the defendant is required either distinctly to admit or deny each. In so far as not ex- pressly denied, each is held to be admitted. CONDESCEND ON, TO. To make a specific allegation. CONDITIONAL INSTITUTION. Devise or bequest over in the event of lapse in the settlor's or testator's lifetime. CONFIDENT PERSON. A person standing in a confidential relation to another, such as law agent, partner, steward clerk, or servant. (See Conjunct.) CONFIRMATION OF EXECUTOR. Probate or grant of administration. (See Executor.) CONJOINING ACTIONS. Consolidating actions. CONJUNCT PERSONS. Near relatives, as sons or daughters by blood or in law, brothers and sisters, uncles or nephews, &c. Voluntary con- veyances or assignments to a conjunct or confident person by a party insolvent at the time are voidable by prior creditors for valuable con- sideration, under the Act 1621, c. 18. CONJUNCT RIGHTS. Joint Rights. Unless restricted by some further word, conjunct rights of fee in the husband and wife belong to the husband alone in fee, the wife having only a life estate. Conjunct rights given 352 GLOSSARY. to a father and unborn children, carry the whole fee to the father, unless words are added expressly limiting the father's estate to his life only. Where the children are born and named in the conveyance of the conjunct right, they take a joint estate with the father in fee. CONQUEST. Estate acquired by purchase as distinguished from descent. CONSIGNATION. Depositing money, the subject of a suit, commenced or threatened, in Court, or in a bant. CONSOLIDATION. Merger of the estates of the lord and of the tenant of an estate of inheritance. CONSTITUTION, ACTION OF. An action by a creditor to fix the amount of his debt, so as to render the real estate liable in the hands of the heir. CONTINUATION. Adjournment or enlargement of time. CONTRACT. There is no distinction in Scotland between simple contracts and specialties. Most contracts relating to personal property may be • parole. No consideration is requisite to support a promise, whether verbal or written. COUNT AND RECKONING, ACTION OF. Suit for an account. COURTESY. Curtesy. COURT OF SESSION. The Supreme Civil Court of Scotland. It consists of thirteen Judges, or " Lords of Session," and is divided into the Outer and Inner House. Five Judges, called Lords Ordinary, constitute the Outer House, each of whom sits separately, and before any one of whom most actions may be commenced. Unless it is of unusual difficulty, in which case the Lord Ordinary may "report" (transfer) it to the Inner House, he hears it fully and pronounces judgment. Against the judgment an appeal lies to the Inner House. The Inner House sits in two Divi- sions, the First and Second, four Judges sitting in each, and each Division being of co-extensive and independent jurisdiction. In very difficult cases either Division may consult the other Judges, or order the case to be heard before the whole Judges, which is called a " Hearing in presence," and the case is then decided by the opinion of the majority. From either Division an appeal lies only to the House of Lords. Appeals to the Court of Session from inferior Courts may generally be taken either before one of the Lords Ordinary (whose decision in that case is final), or before either Division of the Inner House. In all cases the plaintiff or appellant selects the Lord Ordinary and the Division to which the cause is to be attached. CRUIVES. A method of salmon fishing in rivers by forming an enclosure with stakes. CURATOR AD LITEM. Next friend or guardian in a suit. CURATOR BONIS. A manager or receiver appointed by the Court of Session, where the owner is under some legal incapacity to act for himself CURATOR OF A MINOR. Guardian during minority, i.e., the period from the age of fourteen (or twelve, if a girl) to twenty-one. If the father has not appointed a curator, the minor may do it himself, but he cannot be compelled to do it, nor can the Court appoint one for him. (See Tutor and Minor.) CURATOR OF LUNATIC. Committee. GLOSSARY. 353 DEAN OF FACULTY. The chief of the bar, elected annually, but practically for life or till promotion to the Bench, by the vfhole body of the bar, or Faculty of Advocates, q.v. DEAN OF GUILD. A borough officer charged with superintendence of buildings. DEATHBED, LAW OF. Voluntary deeds relating to real estate executed within sixty days of death, by a person at the time labouring under the disease of which he afterwards dies, unless after the execution he is proved to have been seen publicly at church or market, are voidable by the heir at law by an action of reduction, ex capite lecti. DEBITUM FUNDI. A charge upon land. DECERN, TO. . To decree. Deoeknituee, decree. DECLARATOE. An action to declare a right. It may either be for that purpose alone, or contain a prayer for relief. DEEDS. These in Scotland are not sealed, but must be signed on every page by the parties, and ou the last page the signatures must be attested by those of two male witnesses, whose names and designations, together with the name and designation of the person who wrote the deed, must be stated in the " testing clause" (attestation). In the same place must be stated the number of pages of which the deed consists, and the date when and place where executed. When the necessary formalities above mentioned are complied with, the deed is said to be probative, i.e., it proves itself, unless an action is brought to set it aside on some legal ground. Holograph deeds, i.e., those written wholly by the hand of the grantor, are also privileged to the extent of being admitted without the attestation of witnesses, except as to the date of execution, which, when material, must be proved otherwise. A deed cannot be subscribed by a mark ; but when the party cannot write, it mu.st be subscribed for him in his presence by two notaries, and before four witnesses. There is no distinction resembling that between deeds poll and indentures, but a deed poll is sometimes called a unilateral deed. (See Erasures.) DEFAULT, DECREE BY. Taking the summons pro confesso for default of some pleading. DEFENDER. Defendant. DEFORCEMENT. Rescue or violent resistance to an officer serving pro- cess of a court. DELETE, TO. To expunge. DELIVERANCE. Decree or order of a judge. DEMISSION. Resignation. DENUDE, TO. To divest or reconvey. DEPONE, TO. To depose. DESTINATION. Limitation of an estate. DEVOLUTION. The passing over of a base or conditional estate. DIET. Sitting of a Court, or day appointed for performing some judicial act. DILIGENCE. Mesne or final process against the person or estate. Ap- plied to witnesses, &c., it signifies a judge's order in the nature of a sub- poena. To do diligence on a bill is to issue execution upon it, which may be done without an action. z 354 GLOSSARY. DISPONE, TO. To convey by deed or devise. DISPOSITION. Deed of Conveyance. It may signify a will of real pro- perty, for in Scotland real property cannot "be devised by a will proper, but can only be devised by a conveyance framed to take effect on execution, but whicb is valid, though not delivered before death. DOMINANT TENEMENT. The estate to which an easement is appur- tenant, or appendant. DOMINIUM DIRECTUM, or UTILE. The estate remaining in the superior lord after grant by him to a vassal in fee is the dominium direc- tum. The vassal's estate is the dominium utile. DOORS. The Sheriff may grant warrant to break open doors in executing writs. DOUBLE. A copy of a judicial writ left with the person served. EDICTAL CITATION. (See Citation.) EFPEIRING TO. Legally apportioned to, as interest of a debt ; share of profits to a partner. As effeibs, as law directs. EIK. Addition. Eik to a CoNriEMATiON, further return for probate duty. ENTAIL. Under a strict Scottish entail, made prior to 1848, the tenant in possession had never more than a life estate only, and consequently could not bar the entail. He may now do so with the consent of one or more of those in remainder. If born after 1848, or after the execution of any entail made subsequently, he may bar it without any consent. To make an entail effectual, it must have contained clauses prohibitory against the possessor selling, encumbering, or anew limiting the estate, irritant (avoiding) of any such acts, if he should do them, smiresolutive (forfeiting) of his right to the estate in that case. These three sets of clauses constituted the fetters of a strict entail. Defect in any one avoided the entail as regards the particular procedure, whether selling, encumbering, or devising ; but now it avoids the entail in all respects. ERASURES. Words in a deed or other document written on erasures, are taken pro non script-is, but if in a material clause, they may vitiate the whole document. When words are purposely erased, the fact, and the number of the words erased, must be stated in the attestation clause. Words to be inserted must be writteij on the margin, and attested by the signatures of the parties, the Christian names preceding and the surnames following the marginal note. ESTATE. This word in Scotland has the ordinary sense, not the technical sense in which in England it is applied to real property. EVICTION. Ejectment for default of title. EXCAMBION. Exchange of lands. EXCEPTION. Special plea (at common law). EXECUTION. Certificate of service, returned by the officer of Court by whom the service was made. (See Citation and Charge.) EXECUTION, REGISTRATION FOR. In deeds a clause authorising registration in the books of the Court of Session for execution, is equivalent to a warrant of attorney to confess judgment, and the registration is equi- GLOSSARY. 355 Talent to entering up judgment. Bills of exchange may be registered for execution after being protested for non-payment. EXECUTOR. Signifies both executor and administrator. One who would in England be called executor, is in Scotland called executor nominate. An administrator is called executor dative. In default of confirmation as executor by any one else, a creditor may be confirmed to the extent of ob- taining payment of his debt, and is then called executor creditor. An executor is bound to pay debts and legacies six months after the death. The word executors used generally signifies next of kin. Execute y. Personal estate of a person deceased. EXPEDE, TO. To sue out (a writ) ; to execute (a deed). EXPENSES. Costs. EXTRACT. An office copy of a decree or writ. Before Extract ; be- fore a decree is entered. EXTRACTOR. The ofiicer appointed to give extracts. FACILITY. Weakness of mind not amounting to imbecility. FACTOR. An agent. The steward of an estate. A manager appointed by trustees. Judicial Factor, a receiver appointed by the Court of Session. FACULTY. Power. FACULTY OF ADVOCATES. The members of the bar, who possess a common library, and meet annually to elect officers, and at intervals, as required, to discuss legal reforms or professional questions. FATUOUS PERSON. Idiot. FEU. A freehold held of a superior lord. In Scotland the feudal system is still in full force with respect to land, and subinfeudation is permitted to any extent. Feu right, is the estate of the vassal. Feu contract, or charter, or disposition, the deed by which the superior grants the vassal's estate. Feu duty, rent service. Feuak, vassal. (See Title to Land.) FIAR. Holder of an estate in fee simple, as distinguished from an estate for life. FIARS PRICES. Average prices of grain ascertained in each county every year by the Sheriff and a jury, by which the rates of commutation of tithes and of such rents as are expressed in grain, are determined. FORCE AND FEAR. Duress. FORO, DECREE IN. Decree made after appearance and pleading. FORTHCOMING. An action brought against the person in whose hands money or goods have been arrested (see Arrestment), to obtain their trans- fer to the creditor who arrested, in satisfaction of the debt due to him by their owner. FREEHOLD in Scotland means technically only the estate of a tenant holding of the Crown in capite. FUGITATION. Outlawry. FUNGIBLES. Goods consumed by use, as corn, &c. FURIOUS PERSON. A lunatic. GRASSUM. Fine paid at the commencement of a lease. GRATUITOUS. Without consideration. GROUND ANNUAL. Perpetual rent-charge. 356 GLOSSARY. HABIT AND REPUTE. Common reputation, or commonly reputed. H^REDITAS JACENS . The estate whict belonged to a person deceased, before the heir has made up his title to it. (See Title to Land.) HAVER. A witness having documents in his possession which are to be used in evidence. HEARSAY EVIDENCE. This is admitted in Scotland (in addition to the cases in which it is received in England), in the case where the words repeated were used by a person who is dea^ at the time of the trial, but ■who would, if in life, have been an admissible witness. HEIR PORTIONER. Female Coparcener. HEIRS. Heirs render themselves personally liable for the whole of their ancestor's debts, if they take the inheritance without reservation. For the purpose of inquiring whether the estate is more in value than the debts, they are allowed a year, called the annus deliberandi, after which the superior may compel them either to enter, or a creditor make them liable, or they must renounce the inheritance. (See Title to Lwnd, 4.) An heir may enter citm. heneficio inventarii, i.e.', he may file an inventory of the estate, and declare that he is to be no further liable for the ancestor's debts than to the value of the estate. HEIRSHIP MOVEABLES. The best articles of furniture and of farming stock, to which the heir, and not the executors, succeeds. HERITABLE. Real. Heritage, real estate. These terms are opposed to moveable, and moveables. The distinction is, in the main, the same as between Real and Personal, with the important exception that leases and mortgages are accounted heritage. HERITABLE BOND. Mortgage of land. HERITOR. Landowner. HOLDING. Tenure. HOMOLOGATION. Consent or adoption. HORNING, LETTERS OF. A writ commanding a debtor to pay or per- form his obligation, under pain of being "put to the horn," i.e., pro- claimed rebel. It is now superseded by a charge, q. v. HYPOTHEC. . Landlord's or superior's right of distress. The superior's is for the amount of the feu-duty, and has priority over the landlord's. The landlord's hypothec extends over the crop for the rent of the year in which it was grown, and over the stock on the farm for the current year's rent. (See Sequestration for Rent.) In the case of houses, &c., the landlord has a hypothec on the invecta et illata, i.e., the household furniture of his tenant. The law agent's hypothec is a solicitor's lien over title-deeds. IMPLEMENT. Fulfilment or performance. IMPROBATION. Avoidance of a deed on proof of forgery, or of other legal ground. INDUCI.iE. Period allowed for appearance after service. INEPT. Ineffectual. INFEFTMENT. Livery of seisin. (See Title to Land.) INHIBITION. A writ obtainable by a personal creditor, prohibiting the debtor from selling his lands, or further incumbering them with debt. GLOSSAKY. 357 The writ must be served on the debtor, and afterwards registered in a public register kept for the purpose. The creditor suing it out may set aside any deeds afterwards executed in defeasance of the right it gives him. INSTITUTE. The person first named in a new limitation of an estate. He may be the settlor himself. INSTRUCT, TO. To prove. INTERDICT. Injunction. INTERDICTION. A legal guardianship, either by authority of a Court, or by voluntary deed, on a person of weak mind, though not insane, in regard to the management of his real property. INTERLOCUTOR. Any decree or judgment of a Court. INTROMISSION. Acts of management. To intkomit with ; to assume management of. Vitious Intkomission ; an act which constitutes a party executor de son tort. INVECTA ET ILLATA. Furniture or goods subject to the landlord's right of distress, or grain brought within the manor liable in suit to a mill. INVESTITURE. The completed title to land. (See TUle to Land, 2, 4.) IRRITANCY. Condition of forfeiture or nullity. ISH. Expiration. Also egress. JUS CREDITI. A right on which action may be brought. JUS MARITI. The husband's right of property in the personal estate of the wife, whether belonging to her at the time of the marriage or acquired during coverture. It extends even to the wife's property, not reduced to possession during the marriage. JUS RELICTtE. The third of the personal estate of the husband and wife, to which, in default of a settlement, the widow has right, when the husband has left children. When there are no children, the jus relictae is one-half of the personal estate. JUSTICIARY, COURT OF. The Supreme Criminal Court. KIRK. Church. LAW AGENT. Solicitor. LEASE. It must be remembered that a leasehold for years is heritable, i.e., part of the real estate. LEGITIM. A portion of his personal estate which a father cannot by will leave away from his children. Where he leaves a widow, the legitim is one-third of the personal estate ; where he does not leave a widow, it is one-half. It is divided equally among the children alive at the father's death, excluding the heir-at-law, unless he choose to collate, i.e., bring the real estate into hotchpot. LEGITIMATION. The rendering a bastard legitimate by subsequent marriage of his parents. LETTERS. Often signify a writ. LIEGE POUSTIE. Good health. Used generally in answer to an objection to a deed as granted on deathbed, q. v. LIFERENT. An estate for a person's own life. 358 GLOSSARY. LIQUID. Liquidated or ascertained in amount. LITIGIOSITY. Being subject to the rule of lis pendens. LOCALITY. A suit for determining the liability of the several owners of tithes to contribute to an augmentation, q. v. LOCALITY, WIFE'S. Jointure lands. LOCATION. The contract of hiring. LOCUS PCENITENTI^. Period within which a contract not acted on may be renounced. LORDS OF COUNCIL AND SESSION. Judgesof the Court of Session. MAGISTRATE. Generally restricted to the provost and bailies (mayor and aldermen) of boroughs. MAILLS AND DUTIES. Rent. Action of. An action for compelling attornment of tenants. MANDATE. A power of attorney. Mandatory, one holding a mandate. Mandant, one granting a mandate. MANDATORY IN AN ACTION. A person who becomes security for costs on behalf of a suitor residing out of Scotland. A mandatory must be sisted (joined as party) by every suitor in such circumstances. MANSE. Parsonage-house. MARCH. Boundary between estates. MEDITATIO FUG^ WARRANT. Writ oi ne exeat regno. Generally applied for to the sheriff of a county. MELIORATIONS. Improvements by a tenant. MEMORIAL. Case for opinion of counsel, or instructions for counsel. MESSENGER^AT-ARMS. An officer of the Court of Session, whose duty is to serve summons and execute writs. MINISTER. Parish clergyman, as well as dissenting clergyman. MINOR. A person between the age at which pupillarity ceases (fourteen in boys, twelve in girls), and majority. Minors in trade are liable for trading debts, and all minors are liable to perform their contracts, unless they can prove lesion, i.e., damage arising from the contract, in which case they.may be relieved against it within four years after majority, a period called the quadriennium utile. But in no case will they be relieved against a debt contracted for value, except in so far as both parties can be restored. Minors without curators (guardians) may contract as validly as minors who have curators, and whose curators give their consent. Such consent does not validate an injurious contract. MINUTE IN AN ACTION. A written statement of some fact, or pro- posal, not set forth in the regular pleadings. MINUTE OF DEBATE. A written argument ordered by the Court in cases of difficulty. MISSIVES OR MISSIVE LETTERS. Memorandum of agreement, MODIFY. To fix a sum. MORA. Undue delay, laches. MORTIFICATION. A charity or an estate in mortmain. To Mobtift, to grant in mortmain. MOVEABLES. Personal estate. (See Heritable.') GLOSSARY. 359 MULTIPLEPOINDING. Interpleader suit. It may, however, be also brought by one of the claimants, called then the real raiser, in the name of the holder of the fund, called then the nominal raiser. It may in some cases be brought, although the claimants have not proceeded to execution against the debtor. The fund which is in dispute is called the fund in medio. MULTURES. Mill dues. NARRATIVE IN DEEDS. Recitals. NIMIOUS. Unnecessary and oppressive. NOTOUR. Notorious. (See Bankrupt.) OATH. Frequently signifies deposition on oath; or affidavit. {See Reference to Oath.) OATH IN SUPPLEMENT. The evidence of the plaintiif, received in some cases as conclusive after he has proved a prima facie case. OBLIGATION. Contract or covenant. ONEROUS. For valuable, or good, consideration. OVERSMAN. Umpire. PARTS AND PERTINENTS. Appurtenances. PERSONAL EXCEPTION. Estoppel. POINDING. Execution under a fi. fa. Poinding of the ground ; Distress by a mortgagee. PRECEPT. Writ. (See Title.) PRECOGNITION. In a criminal case, the depositions ; in a civil case, the proofs taken by an attorney for the use of counsel. To Peeoognosce, to take such proofs. PRESCRIPTION, NEGATIVE. Limitation of actions. In most cases, however, the action is not absolutely barred, but the plaintiff, after the period limited, is restricted to proof of his claim by writing under the hand of the defendant, or by the defendant's admission on oath. Merchants' and tradesmen's accounts fall under the rule in three years, parole con- tracts in five, bills in six, covenants by sureties in seven, bonds unattested in twenty, and other covenants in forty years, called the long prescription, and which extinguishes the right. PRESCRIPTION, POSITIVE. An indefeasible presumption in favour of a title to land which has been complete, in a feudal sense, and has formed the ground of possession for forty years. PRIVILEGED DEBTS. Debts having a priority. The principal are deathbed and funeral expenses, and wages of servants, &c. There is no distinction between specialty debts and debts by simple contract. PROBATIVE. A document which proves itself is probative. (See Deed.) PROCESS. An action at law. In a, restricted sense, the pleadings and documentary evidence filed in court in an action. PROCURATOR. An agent. In a suit the counsel or solicitor conducting it is called the party's procurator. Local attorneys in the Sheriff Courts are called Procurators of Court. PROCURATOR-FISCAL. The local attorney who acts as public proseou- 360 ■ GLOSSARY. tor in cases tried in the local Courts, and as local attorney for the prose- cution in cases tried in the Court of Justiciary. PROCUEATORY. Warrant of attorney. PRODUCTIONS. Documents or exhibits produced as evidence in a cause. PROPELLING THE FEE. Conveyance hy tenant in tail to the next in remainder. PROROGATION. Enlargement of time, or submission to jurisdiction. PROTESTATION. Application to have a suit dismissed for want of pro- secution. PROUT DE JURE. In every way which law permits. PROVING OF THE TENOR. An action for setting up a lost deed. PROVISION, HEIR OF. Devisee, immediate or in remainder. PROVOST. Mayor. PUPIL. A boy under fo urteen or a girl under twelve years of age. (See Tutor.) PURIFICATION. The happening of a contingency. PURSUE, TO. To sue. Pubsuek, plaintiff. RANKING AND SALE. An action by a mortgagee in possession or an adjudger (see Adjudication), or by the heir, for having the estate of the debtor or ancestor sold, and Ae price applied in payment of the debts of the creditors, according to their legal priorities. RANK, TO. To admit proof of a debt. To Rank on ; to prove against, the estate. RATIFICATION. Acknowledgment of a deed by a married woman. RECLAIM, TO. To appeal from a Lord Ordinary to one of the divisions of the Inner House of the Court of Session. It must he within twenty- one days in ordinary actions. RECLAIMING NOTE. A note of appeal in such a case. RECONVENTION. The rule by which a foreigner suing in Scotland ren- ders himself liable to a counter-action by the defendant. record", CLOSING THE. A Judge's order declaring the pleadings con- cluded, and the case ready to be set down for hearing. RECORD, TO. To enter a deed in a public register. REDUCTION, An action for" reducing," i. e., cancelling a deed, or will, or setting aside a decree of a Court. In a " reduction improbation" the deed, &c., is set aside if not produced, as fully as if produced and proved invalid. REFERENCE TO OATH. A reference of the facts involved in a suit, made by one of the parties, to the oath of the other. It may be made at any stage by either party. The oath, when given, is decisive of the fact referred, and excludes kll other proof prior or subsequent. The oath is said to be either afBrmative or negative, according as it affirms or denies the fact in question, but sometimes it is qualified, i.e., the party to whom the reference is made does not simply swear yes or no to the question, but adds circumstances relating to it. In this case the Court has to decide whether the circumstances are such as form a necessary part of the oath, or whether they are properly extraneous. In the former case they are called intrinsic, and are received; in the latter case they are called extrinsic, and the oath is read without them. GLOSSAEY. 361 REGISTRATION, CLAUSE OF. Warrant of attorney to confess judgment contained in a bond. REI INTERVENTUS. Part performance. RELEVANT. Pertinent. Relevancy, Objection to. Demurrer. RELIEF. Fine paid by an heir to the lord on admission. (See Title to Land.) Also the right of indemnity over against a third party. REMISSIO INJURIA. Condonation. REMIT, Transmission of a cause to another Court of equal or inferior jurisdiction, or reference to an individual to make an inquiry needed for the information of the Court. REMOVING, ACTION OF. Ejectment by a landlord. REPEATING A SUMMONS. Instituting a cross suit for the purpose of establishing a defence which could not be stated in the original cause. REPEAT, TO. To repay. REPETITION. Repayment. REPROBATOR. Evidence to impeach a witness's credibility. REPONE. To replace. In an action it is to set aside a decree in absence., or by default, and to direct the cause to be proceeded with as if such de- cree had not been made. REPORT, TO. Besides its ordinary sense, signifies transference by a Lord Ordinary of a cause before him to the Inner House, without giving any judgment on it himself. (See Court of Session.') RESCISSORY ACTION. Action of reduction, q. e. RESIGNATION OF AN ESTATE. Surrender by the tenant of a free- hold to the lord, either for the admittance of another as purchaser, in which case it is called resignation in favorem, or to remain in the lord's hands, called then resignation ad remanentiam. (See Title to Land.) RESILE. To withdraw or refuse to complete. RES NOVITER VENIENS AD NOTITIAM. Matter discovered subse- quently to pleading, which may in certain cases be admitted by leave of the judge. RETOUR. Verdict of heir's propinquity in a service, q. v. RETROCESSION. Re-assignment by the assignee to the assignor. REVERSION. Equity of redemption. RIDING CLAIMS are those made in a multiplepoinding by creditors of the creditors who are the immediate claimants. If the riding claims are established those making them obtain payment from the Court, out of the fund to which their debtor is ultimately found entitled. ROLLS OF COURT. Cause lists or papers. ROUP. Sale by auction. RUBRIC. Marginal abstract of a report. RUNNING LETTERS. Under the Act 1701, u. 6, a prisoner committed for trial may " run his letters," i. «., apply to the Court of Justiciary for an order that his trial shall be fixed within sixty days, after which it must be brought to a close within thirty days more, and in default of either condition, the prisoner may obtain his liberty. He cannot be again committed, except on express order of the Court ; and if not then tried within one hundred days, he is free from further proceedings. 362 GLOSSARY. BUNRIG. Lands possessed by the owners in alternate strips. SALE. It may be mentioned that writing is not necessary to prove a sale except in the case of real property and ships. SASINE. Seisin. (See Title to Land.) SCHEME. A statement drawn up to show a proposed arrangement. SEDERUNT. Sitting. Persons present at a meeting. Sedeeckt Book ; Minute book. Act of Sedekunt ; General order or rule of the Court of Session. SEMIPLENA PROBATIO. Prima facie proof in a filiation case, or action of debt, admitting the mother's, or creditor's oath, in supplement, q. v. SEQUESTRATION. Adjudication of Bankruptcy. Also the appoint- ment by the Court of a receiver of the rents and profits of an estate pending litigation of the title. Sequestration fok kent ; Distress by a landlord. SERVICE OF HEIRS. Procedure taken before the Sheriff of a county or the Sherifi" of Chancery in Edinburgh for obtaining a decree declaring an heir to have proved his title to succeed, and which is necessary before he can exercise the full rights of property. Fifteen days' public notice of the application must be given. Any rival claimant may oppose, and any party may carry the case by appeal to the Court of Session, where, if necessary, a trial by jury may be had. General service is service to an ancestor not feudally seised. Special service is service to an ancestor whose feudal title was complete at his death. (See Title to Land, 2, 4.) Service may be either as heir general, heir of provision (devisee), or other- wise, according as the estate happens to be limited. SERVIENT TENEMENT. The estate out of which an easement is granted. (See Dominant.) SERVITUDE. Easement. SHERIFF. The judge of the county civil and criminal court. Till re- cently he was called the SheriiF-Depute. He resides in Edinburgh, and must be in habitual attendance on the Court of Session, but holds frequent courts in his county. He has the power of appointing one or more Sheriff- Substitutes, according to the size of the county. These are constantly resident in the county, and hold daily courts, except in vacation. The procedure resembles that in the Court of Session (see Action) ; in most cases it is commenced before the Sheriff-Substitute, and appeal may be taken to the Sheriff. This is done by filing a note of appeal, when the pleadings and documentary evidence, together with the Sheriff-Substitute's notes of the evidence taken orally before him, and his decree, are trans- mitted to the Sheriff, who gives his decision after argument, sometimes oral, but generally in writing. Both the Sheriff and Sheriff-Substitute must in the decree state the facts which they find proved, and they add a note containing the reasons for their judgment. The Sheriffs jurisdic- tion is unlimited in actions respecting personal property, and in many actions affecting real estate, but he cannot try questions affecting title to real property, or re|cissory or declaratory actions. In actions above L.25 in value an appeal lies to the Court of Session ; under that value there is no appeal. The Sheriff's criminal jurisdiction extends to all crimes, ex- GLOSSARY. 363 cept those for which the punishment is transportation. Besides his proper civil and criminal jurisdiction many administrative duties are imposed on the Sheriff. (See also Small Debt Court.) SHERIFF-CLERK. Clerk of the Sheriff's Court. SIGNET, WRITERS TO THE. A class of solicitors practising before the Court of Session, distinguished by the letters W.S. after their names. They also act as conveyancers, and are solely entitled to prepare certain writs which pass the royal signet, whence their name. SINGULAR SUCCESSOR. Purchaser. SIST, TO. To stay (procedure or execution). To sist in an action is to join as plaintiff or defendant. SMALL DEBT COURT. A Court held by the Sheriff for the trial of cases under the value of L.12, and by Justices of the Peace for cases under the value of L.8. The procedure resembles that by plaint in a, County Court, and the judge's decision is final. SOLICITORS BEFORE THE SUPREME COURT. A class of solicitors practising before the Court of Session, distinguished by the initials S.S.C. Solicitors, or writers simply, form another class, but cannot practise except in the local Courts. (See Signet, Writers to the.) SPUILZIE. Illegal and forcible seizure of goods. STEELBOW. The straw, stocking, or implements on a farm taken by the tenant at entry without payment, and for which at removal he leaves articles equal in quantity and quality. Not a general custom. STIPEND. Salary of the clergy in lieu of tithe. It varies according to the price of grain in each year, determined by the fiars, q. v. SUBJECTS. Parcels, or premises. SUBMISSION. Extrajudicial reference to arbitration. SUBSTITUTE. Remainderman. SUBSTITUTIONS. Remainders. SUMMONS. The writ by which an action is commenced. (See Action.) SUPERIOR. Feudal seignor or lord. (See Title to Land.) SUSPENSION. An action for staying procedure on a decree of an inferior Court, or a decree of the Court of Session made in absence of the defend- ant. The decree itself comes to be reviewed in this form. It is com- menced by the presenting of a note of suspension, or petition, in the Bill Chamber. The party who is plaintiff in this action is called the suspender. The defendant is called the charger, being the party whose charge is sought to be suspended or stayed. TACK. Lease. TAILZIE. Entail. TEINDS. Tithes. TENANT. This term is restricted to a lessee. TERCE. Dower. TERM -DAY. Quarter-day. Rent, interest, &c., are commonly payable half-yearly, and usually at the terms of Whitsunday, 15th May, and Martinmas, 11th November, sometimes at Candlemas, 2d February, and Lammas, 2d August. 364 GLOSSARY. TESTAMENT. "Will of personalty. It must be authenticated in like manner as a deed, q. o. Land cannot pass by testament, but only by words of present conveyance. TESTING CLAUSE. Attestation Clause. In tbis clause are expressed the facts necessary to make a deed probative. (See Deed.) THIRLAGE. Obligation to do suit to a mill. TITLE TO LAND. Subinfeudation never having been prohibited in Scotland, the feudal system is still (modified by the system of registration of deeds) the basis of the title to real property. The following are the leading principles of the system : — 1. All land is held primarily of the sovereign as superior. The vassals of the Crown may by subinfeudation be the superiors of others, these others may be superiors to others still, and so on ad infinitum. Each tenant is called the vassal of his immediate superior, and has no con- cern with any higher superior. The estate remaining in any superior is called the superiority. Practically its value consists in the feu- duty (rent-service) paid by the vassal, and in the right to certain fines, called casualties, on alienation, or succession to the vassal's estate. 2. The title of every tenant (whether arising by grant, purchase, settle- ment, or inheritance) requires infeftment (livery of seisin) to make it complete. This infeftment proceeds on a warrant, called Sk " precept of sasine," granted either by the immediate superior, or by the vendor, and confirmed by the superior. In either case it implies in fact that the superior recognises the vassal's title, and the necessity of this recognition secures the superior, and the other vassals, from any invasion of their rights by the vassal selling or succeeding. But the superior cannot refuse to recognise the alienation when properly effected. 3. The precept of sasine is contained in the following deeds : — a. When the superior grants an estate for the first time, it is con- tained in the deed of grant, called an original charter. h. When a vassal conveys to another party, it is contained either in a "charter of resignation," which the superior grants to the new vassal, on the old vassal resigning the lands to him for that purpose (exactly as in surrender and admittance to copyholds), or in the vendor's disposition (conveyance), of which a " charter of confirmation" is afterwards obtained from the superior. These charters on transmission are called " charters by progress." c. When a vassal dies and his heir succeeds, it is contained in a " precept of clare constat," granted by the immediate superior, which sets forth that the heir's proximity has been clearly shown to the superior. Although he may grant this of his private knowledge, he is not bound to do so till the heir has " served," i.e. proved his proximity before a judge. (See Service.) d. In a few cases it is contained in the decree of Court by which GLOSSARY. 365 the title of the party is established. In such cases the sasine taken must he confirmed by the superior, to put the party taking it in the situation of his vassal. i. Till recently, infeftment or sasine, in obedience to the precept of sasine, was given on the land by symbolical delivery, and a deed was drawn up, called an Instrument of Sasine, which recited that it had been done. The actual ceremony is now abolished, but the deed may be used. It is "recorded," i.e., registered in the General Register of Sasines.at Edinburgh, or in the Particular Register of Sasines in the county in which the estate is situated. This completes the tenant's title. The procedure is called " making up titles," or 'entering with the superior.'' Sasines have priority according to the date of registration, not of execution, and this rule is not affected by notice of an unregistered sasine, though of earlier date. Thus the registers give complete information as to the person who at the moment has a good title to the estate. 5. Mortgages, styled in general " bonds and disposition in security," are regarded as strictly what their name and form import, viz., a cove- nant for repayment of the money borrowed, with a conveyaince of the lands in security of payment, redeemable by payment, but irredeem- able in the event of sale under a power contained in the deed to that effect in default of payment. The deed is registered in the Register of Sasines, which makes it a charge upon the lands, and such deeds have preference according to priority of registration. The mortgage is transferred, transmitted, or extinguished by short entries in the same register. Thus every purchaser or incumbrancer has notice of all existing valid incumbrances, while the incumbrances never affect, legally or equitably (until a sale has actually taken place), the title to the estate itself. The title-deeds remain in the mortgagor's hands, and a second or subsequent mortgage is (within the value of the estate) as easily obtained as a first. 6. Capital sums and rent-charges appointed as jointures, portions, &c., are secured in a similar manner, by the appointment being contained in a deed which is entered in the Register of Sasines. They then form a debt directly charged upon the lands, in whose hands soever they may be, and do not require the intervention of a term for their security. The changes introduced in this system by recent Statutes, consist in allowing registration of a deed of conveyance itself, instead of the instrument of sasine, to operate as infeftment and registration at once, in substituting short writs for precepts, &c. , and in allowing a subsequent deed to refer to the parcels, limitations, &c. contained in a prior registered deed, instead of repeating them. TOCHER. Dowry or marriage portion. TRANSACT, TO. To settle a dispute by arbitration or other non- judicial course. TRANSFER, TO. To revive a suit abated by death of the defendant. TRANSLATION. Transference of an assignment. 366 GLOSSAEY. TRUSTEE IN A SEQUESTRATION. Trader's assignee in bankruptcy. TUTOR. Guardian during pupillarity. When appointed by the father, he is called tutor nominate. When none has been appointed by the father, the nearest male relative on the father's side is entitled to the custody of the pupil's estate, and is called the tutor at law, while the nearest relative through the mother receives the custody of the pupil's person. A tutor dative is named by the sovereign where no tutor at law has applied for the oflHce. A tutor has full control over the pupil's property, except that he cannot sell his real estate. But his accounts must be submitted to a public officer appointed to audit them, and he is subject to the control of the Court of Session. UPLIFT, TO. To receive and get in. UPSET PRICE. Sum fixed as that at which the biddings at an auction are to commence, and under which the sale will not take place. "VASSAL. The tenant of a freehold under a seignor or superior. (See Title to Land.) VERGENS AD INOPIAM. Approaching insolvency. This state autho- rises creditors to take some steps for their security which are not otherwise permitted. VERITY, OATH OF. Affidavit of a fact, not merely of belief. VIOLENT PROFITS. The mesne rents, sometimes by way of penalty esti- mated at double the actual rents, to which a tenant resisting an ejectment is liable. WADSET. Old form of mortgage. WAKEN, TO. To revive a suit abated by want of prosecution for a year. WARRANDICE. Warranty or covenant for title. WILL OF SUMMONS, &o. The part containing the warrant of service. WRONGOUS IMPRISONMENT. False imprisonment. Under the Act 1701, c. 6, magistrates and officers issuing or executing illegal warrants of imprisonment, or acting without warrant, are liable in damages. (See Running Letters.) WRIT. Writing. WRITER The usual name of country attorneys. WRITER TO THE SIGNET. (See Signet.) INDEX OF SUBJECTS. ■^•■fi- — y'w rmmbera immediately following the titles refer to the mimbering of the case on the page stated. Titles in capitals are suA as form separate titles in the hody of the work. Abandonment op Ship. Insurance, Marine, 27-31 , Abatement of Nuisances. See Nuisance. of price. Conveyancing, 13-23, of Legacies. Will, 33-35, Absence, decree in, reduction of. Reduction, 20-22, Absolute conveyance. Written Document, 20, Absolvitor does not affirm defences stated. Action, 150-152, Accidents, Liability for, .... Accumulation not prohibited. Trust, 43-45, for charity. Charity, 6, . AoaUIESCENCE, ..... in acts of association. Dissenters, 3, in use of premises let. Landlord and Tenant, 14, in accounts rendered. Principal and Agent, 6, does not discharge trustee. Executor, 7, Husband and Wife, 56, Partnership, 34, nor legitim. Legitim, 10, affords presumption against fraud. Praud, 4, Act of Bankruptcy. See Notour Bankruptcy. Action, procedure in, ..... by corporation members. Corforation, 2, against do. do., 6, against burgh. Damages, 4, . . . in Foreign Courts. Foreign, 13-39, Adherence. Husband and Wipe, 32, Adjudger, count and reckoning by subsequent. Prescription, 21, Adjudication, ...... as against singular successor. Oonvbtancing, 2, by sequestration of apparent heir. Bankruptcy, 53, against entailed estate. Entail, 157, » in implement. Conveyancing, 6, descent of Heir, 7, ... prescription of. Prescription, 4, 18, Adjudication, Ranking of, ... Ranking and Sale, 3, . Admiralty, .... Page 203 90 337 284 341 20 99 324 82 1 110 209 263 150 193 246 223 163 2 93 93 99 157 189 261 21 89 61 136 89 167 259, 261 23 280 23 368 INDEX OF SUBJECTS. Adultery, divorce or, damages for. Husband and Wife, 69-83, Advances to children. See Satisfaction — Succession, 3, . Advocate. See Counsel. Advocations, ...... Advowson. See Patronage. Affidavit. See Oath. Agent. See Principal and Agent — Law Agent. Agent, death of principal. Pabtnership, 39, Pkincipal and Agent, 19, Alien, ..... Alienations under Acts 1621 and 1696, . Aliment, ..... to children. Provision, 16, 17, 18, to wife. Husband and Wife, 31-33, 59, 64, 188, 189, Assignation, 1, Ambiguity in deeds. Written Docdment, 8-25, Annuities, gift of. Will, 34, 35, . Apparent Heir, .... Heir and Executor, 2, Husband and Wife, 22, Appeal, . . . . ■ . cross, 58, . by leave, excludes costs, 133, 149, vrhen brought for delay, 98, . Appeal Cases, .... delay in presenting by respondent, 85, costs in such case, 141, Appeal Committee, .... Application of verdict. Appeal, 38, 44, judgment. Action, 156-159, Appeal, 211, Apportionment of Rents. Heir and Executor, 7, i Apprentice. Master and Servant, 1, Approbate and Reprobate, under wills. Provision, .21, 8, 9, 10, under foreign wills. Foreign, Arbitration, ..... counsel may refer to. Counsel, 5, Arrestment, ...... recall of. Arrestment, 3, , of price in hands of purchaser. Conveyancing, 10. in hands of trustees of settlement. Trust, 54, ad fund. jur. Action, 19, Assessed taxes, liability of ministers for. Parish, 26, Assignation, ...... Intimation of, excludes Crown. Crown, 6, Page 195 309 .301 247 264 23 54 24 ■ 273 193, 194 51 339, 341 337 176 177 187 25 31 39,40 35 25 34 39 31 30 21 46 177 229 334 273 156 46 94 50 51 90 326 4 241 51 .52 97 INDEX OF SUBJECTS. 369 Assignation of rent void against purchaser. Conveyancing, 24, of contract must be in writing. Sale, 15, English bond. Fokeiqn, 1, . '. in trust. Seccritt, 11, . . . Assignment. See Assignation. Association for public object. PARTNEasnip, 29, 31, 35, . Attainder. See Forfeiture. of papist. Papist, 1-3, .... AtTGMENTATIONS, ...... Parish, 11-16, .... relief against, .... Author. See Copyright. Author's title. Conveyancing, 5, . Backbond. Conveyancing, 3, 6, . Security, 8, : Bail. Wrongous Imprisonment, 2, ... Bank, ........ notes cut for transmission, 3, ... forgery on, 9, 10, manager, dismissal of, 4, . of Scotland. Alien, 2, . . . . agent, power to bind bank. ' Partnebshif, 40, Principal and Agent, 17, cautioner for, . Bankrupt, action by or against, 75, 76, foreign. Foreign, 26, . Bankruptcy, Notour, does not annul order on agent. Principal and Agent, fraudulent. Wrongous Imprisonment, 4, of a husband. Husband and Wife, 59, of a father. Provision to Children, 9, 12, . Bar, plea in. Action, 50, ..... Barony, infeftment in part of. Infeptment, 4, Barrister. See Counsel. Base infeftment. Prescription, 15, ... Bastard cannot inherit land in England. Legitimation, 6, Bastardy. See Legitimacy. Battery. Damages, 1 , 5, 6, . Beneficiaries under Trust, Rights of, Beneficium competentice. Husband and Wife, 41. inventarii. Heirs, 72, . Belligerent, .... Bequest. See Legacy. to class. Will, 20, Bermoney fishing. Salmon Fishing, 18, Bibles, right of printing. Crown, 7, 8, 2a Page 92 287 155 296 245, 246 , 237, 238 315 239, 240 316 89 89 295 342 53 63 54 53 24 247 264 54 64 158 54 56 265 343 193 271, 272 8 197 21 61 225 98,99 324 190 175 64 335 291 98,99 370 INDEX OF SUBJECTS. Bill of Exceptions, . . appeal on, brings up whole case. Appeal, 108, against evidence lies only when important. Evidence, 20, OP Exchange, . Bona fide Consumption, Bond, illegal. Buesb, 23, Bond and disposition in security. See Security. Bonded goods, delivery of. Sale, 11, 19, 20, Bonus on shares is capital. Liferenteb, 6, Boundaries, ..... See Salmon Fishing. Bounding charter. Peopeety, 4, 23-26, Salmon Fishins, 21, Bounties. Statute, 24, 25, . Building contract. Contract, 7-12, plan. WeittenDocumemt, 9, 12, 13, BCEGAGE, ..... Burgh, ..... Burying-ground. See Churchyard. pAffB 17 36 148 65 68 69 73 287, 288 228 266 265, 268 292 308 . 87,88 339, 340 70 71 Calls, payment of. Partnership, 4, 22, 23, 28, 32 Calumny, oath of. Action, 91 . . . Husband and Wife, 77, Canal. Public Works, 1, 2, 5, Company, liability of. Written Document, 17, Cancellation, purpose of. Deathbed, 12, . Heirs, 40, . Husband and Wife, 37, Proving the Tenor, 6, Will, 10 . ' . Cash credit bond. Bond, 8, ... discharge of cautioner's. Cautionee, 23, 26, 30, Casualties, ...... Ga^us amissionis. See Proving the Tenor. Cautioner, ...... whether, may appeal. Appeal, 79, bound by prorogation of obligation. Error op Law, 2, Cessio Bonorum, , . . . . Cestui que trust. See Beneficiaries. Charity, . . . . superintendence of, by Kirk-Session. Action, 2, title of trustees against heir. Heies, 56, . SUPERIOE AND VaSSAL, 21 Charter, with clause of union. Infeptment, 1-5, . 242, 244r-246 13 196 275, 276 340 102 171 189 269 333 70 79,80 313 76 33 145 56 81 2 173 312 197 INDEX OF SUBJECTS. 371 Charter, contradicted by sasine. Infeftmbnt, 1 3-15, of erection of burgh. Bubgh, 2, 13, containing right to coal. Coal, 3, 4, . Charters, obligation to employ superior's agent. Real Bukden, 7; Chukch, repair or rebuilding, .... seats in. Paiiish,'8, .... Landlord and Tenant, 57, Chuiich-yabd, ...... Civil law, authority of. Law op Scotland, 2, Clare constat, Superior may grant himself. Supekioe and Vassal, Clause of return. Heiks, 2, 3, SUPEBIOE AND VaSSAL, 17, Clerical error. Action, 26, Appeal, 61, Will, 10, Coal, . Collation, College, bequest for bursaries. Chakity, 8 College of Justice. Poob-eates, 1, Collusion. Action, 53, House op Lokds, 14, in divorces. Husband and Wife, 77 Combinations, illegal. Justices of Peace, 2, Commission, Proof by, Action, 99, 100, in action of constitution. Bill of Exchange, 12, Commission in army. Bond, 2, Contbact, 16, Conveyancing, 20, Commissioners of Supply. Valuation, 12, Police. See Police. Committal on criminal warrant. Wbongous Impbisonment, 2. Committee of Lunatic. Action, 3, ... See Lunatic. Common. See Cbmmonty. Common agent. Ranking and Sale, 6, 7, • charter by. Supebiob and Vassal, 6, purchase by. Acquiescbncb, 2, oommontt, ..... Pabish, 18, 24, Company, title to sue. Action, 4, 5, defend. Action, 12, 14, register of shareholders. Public Wobks, 13, 15, manager. Pabtneeship, 9, liability of. Pabtneeship, 52, examination of affairs. Pabtneeship, 30. Page 198 71,72 83 282 238 239 215 239 222 , 311 166 312 5 32 333 83 176 85 82 257 8 182 196 206 11 14 66 69 88 91 327 342 2 280 310 1 299 240, 241 3 34 277 243 249 246 372 INDEX OF SUBJECTS. Page Company, dissolution of. Pabtneeship, 24, 30, 58, 61, • . 245, 250 fraudulent representation. Evidence, 19, . . 148 Compensation of debts of assignee by cedent. Assignation, .'5, . 52 of bank account witk bank. Bank, 7, ■ .53 of bills. Bankruptcy, 44, .... 60 of debts. Debt, 13-15, . . . .106 of legacies. Will, 31, . . . .337 Competent and omitted, rule of. Bankeuptcy, 37, . . 59 objection of. Reduction, 14, . 284 Composition. Supekioe. and Vassal, 32, . . ' . . 314 Composition by Bankkdpt, ...... 63 cautioners for. Bankeuptcy, 55, ... 65 Compromise of action. Weitten Document, 17, . . . 340 will not be set aside. Eeeoe of Law, 6, 8, . . 145 without fraud, binding. Law Agent, 2, . . 218 Concealment in Policy. Insueance, 2, . . . . 199 Insceance, Maeine, 8-18, . 201, 202 Condescendence, ....... 5 fact not stated in, waived. Appeal, 114, . . 37 Condition, waiver of. Weitten Document, 25, . . . 341 Conditional Institution in Moveables, .... 335 Legacies, ...... 336 Conditio Si Sine LIbeeis, ...... 834 Condonation. Husband and Wife, 72-76, . . 195, 196 Confession, in pleading. Action, 45, 47, . . . . 7, 8 Conjoining actions. Action, 74, . . . . .11 Conjunct fee and liferent. See Fee and Liferent. in husband and wife. Entail, 7, . 113 Conquest, ........ 86 Consent of parties does not make Court an arbiter. Action, 121, . 17 but see, 27, 41, . . . . . . 5, 7 warrants interim decree. Action, 147, . . . 20 to joint statement of facts conclusive. Appeal, 88, . 34 judgment by, may be reversed. Appeal, 110, . . 37 Conservator at Campvere. Public Office, 1, . . . 274 Consideration supports deed by facile person. Peksonal Capacity, 7, 255 assignation without. Assignation, 6, 8, . . 52 of bill, may be a defective bill. Bill of Exchange, 1, 65 of bond. Bond, 5, 7, . . . . .70 illegal. Bond, 9, . . . . .70 must be proved by trustee taking an assignment. Husband and Wife, 56, .... 193 Consignation. See Multiplepoinding. in action, gives preference. Bankeuptcy, 12, of price. Ranking and Sale, Consignment of goods, bill on, 24, .... Consolidation of action. See Conjoining. 56 281 68 INDEX OF SUBJECTS. 373 Page Consolidation of superiority and property. Superior and Vassal, 13, 311 Construction of entails. Entail, 104, 109, . . 128, 129 lease. See Landlord and Tenant. See Interpretation. Contracts by partners or company. Partnership, 37-52, . 246-249 Contravention of entail. Entail, 38, 62, 125, 126, 130, 174-179, . . . .118, 121, 131, 132, 139, 140 245 242, 244 93 178-180 89 89 92 246 231 93 34 74 Contribution. Partnership, 27, Contributory. Partnership, 4, 22, Convention of Burgbs. Corporation, 5, Conversion. Heritable aitd Moveable, 6, 13-18, Conveyance, cost of. Conveyancins, 7, Conveyancing, ..... Copyright, ...... of letters. Partnership, 35, Coroner of county. Member of Pahllambnt, 7, Corporation, ..... member of, may appeal. Appeal, 80, 81, in burgh. Burgh, 2, 5, cannot claim entrj' as appriser. Superior and Vassal, 2, 310 Costs op Appeal, ....... 38 may be remitted to Court to determine. Appeal, 117, 120, 37, 38 out of estate, ....... 42 how enforced, ...... 46 Reduction, 12, ...... 284 of Crown. See Crown. See Expenses. ' Counsel, ........ 94 duty of, in preparing appeal cases. Appeal, 1-6, . 24, 25 responsibility of, for pleadings. Action, 24, . . 5 Counsel, 4, . .94 how heard in appeals. Appeal, 70, 93, 94, . . 26, 35 appointed by House in certain cases. Appeal, 86, . 34 English, opinion of. Appeal, 95-97, ... 36 Queen's, precedence of. Counsel, 6, 7, . . . 94 bonds to, are valid. Counsel, 12, ... 94 power to refer to arbitration. Counsel, 5, . .94 Country Agent. See Law Agent. Court of Exchequer. Court op Session, 1, 9, . . . 94,95 Justiciary, appeal from. Appeal, 9-11, . . . 26 jurisdiction of. Court op Session, 7, 8, . 95 Court of Session, ....... 94 whether subject to Act 1701 . Wrongous Imprison- ment, 4, . . . . . . 343 . See Jurisdiction. Courtesy. Husband and Wipe, 36, 66, . . 189, 194 374 INDEX OF SUBJECTS. Covenant running with theland. Landlobd and Tenant, 22, SUFEBIOE. AND VaSSAL, 24, Creditors, acquiescence by. Acquiescence, 1, ranking of, on estate of deceased debtor. Assignation, 2, in sequestrations, powers of, in sequestrations, fraud on (Alienations), . Okown, ..... costs, liability for. Appbai, 165, 166, casualties, claim for. Court of Session, 1, See Lord Advocate. Cruires: Salmon-Fishing, 2, 4, 5, 8, 12, 32, Curator. Minor, 10, 11, bonis. Trust, 36, .... Custom of country. Landlord asd Tenant, 68, 69, mercantile. Written Document, 24, 26, Page 210 313 1 51 60 59 54 97 42 94 Action, 111, 112, . . . . undistinguisbed, ground for new trial. Action, 116, measure of, in contracts. Contract, 17, . for misrepresentation. CoNVETANciNe, 13, 22, 23, for failure in contract of sale. Sale, 12, 24, 29, . Damnum fatale. Landlord and Tenant, 6, 8, . Daughter. See Heirs, description of. Dean of Faculty, precedence of. Counsel, 6, 7, Dean of Guild Court, practice. Appeal, 19, authority. Burgh, 11, Deathbed, ..... Debt, ..... Debts, word does not include heritable debts. Her. and Moveable Declarator, decree cannot go beyond summons. Action, 142, House of Lords does not decree. Appeal, 116, absolvitor in. Action, 152, Decree, ..... in House of Lords, . in absence or default. Action, 63, Reduction, 20-22, Deed, ...... lost, evidence of. Evidence, 12-14, See also Proving the tenor. Deer. See Game. Defamation. See Libel. Defaudt, decree ia, is res judicata. Reduction, 21, Defences, .... . . not affirmed by general absolvitor. Action, 150, 152, Defendant. See Defender. Defender, ... ... 290, 291, 293 234 323 217 841, 342 98 15,16 16 88 90,92 287, 289 2, 208 94 27 72 101 104 178 20 37 21 19 35 9 285 106 147 20 285 7 21 INDEX OF SUBJECTS. 375 Page Defender abroad, ....... 4 Del credere commission. Principal and Agent, 9, 12, . 263, 264 Dehveey of Goods to BANKntrpx, ... .56 OF Deeds, ...... 109 ON Sale, ...... 287 Delivery note. Sale, 19, 21, . . . 288 Demurrage. Shipping, 3, 4, . . . . . 302 Denuding. See Devolution. Depute-Clerk of Session. Public Office, .... 274 Description of Lands. Conveyancing, 12-16, . . . 90,91 Entail, 21, . . . .115 Destination, ...... 166 with prohititory clauses. Heiks, 8, 12, . . 167 in entail. Entail, 27-39, . . . 116-118 Deathbed, 20, . . . . 104 Desuetude, rule of, in Acts. Statute, 3, . . . . 305 Acts in desuetude. Bckgh, 22, ... 73 Salmon-fishino, 4, . . 290 Deviation in Insueance, ...... 202 Devolution op Entail, ...... 120 in marriage-contract. Heirs, 21, 31, . . 168, 170 Diligence, ........ 110 Directors of Company, power to take bill. Insurance, 3, . • . 199 quorum. Partnership, 18, . . 244 relief of, do. 25, . . 245 liability of, do. 50, 51, 52, 248, 249 cannot contract with Company. Public Works, 16 278 Discharge of Bankrupt, ...... 63 OF Cautioner, . . . ... 80 Trust, 49, . . . .325 ofdebt, 104 Disjunction and erection x)f parish, . . . . . 238 Dispensation, clause of, in charter. Infeftment, 1-3, . . 197 Dispositive clause. Coal, 3, 4, . . . . .83 Teinds, S, . . . . . ■ 314 not controlled by procuratory. Heirs, 36, . 170 Dissenters, ........ HO Distress, landlord's. See Sequestration for Bent. Divorce, ........ 195 paramour admissible as witness. Evidence, 7, . . 146 execution of power after. Husband and Wife, 53, 54, . 192 Dog, injuries by. Damages, 11, . . . . .99 Domicile, .....••• HO regulates succession. See Succession. rights of husband and wife. Husband and Wife, 30-60, .... 188-193 376 INDEX OF SUBJECTS. Page Domicile regulates divorce, 79-83, ..... 196 Donatio inter virum et useorem. Fee and Liferent, 5, . . 152 Heiks, 40, . . .171 Husband and Wife, 47, 48, 66, 57, 65, . . . 191, 193, 194 Donation, completed. Assignation, 6, 7, ■ . . . 52 Double title. Heiks, 20, 22, 23, . . . . 168, 169 Prescbiption, 13, . . . . . 260 Drainage, damages for defective. Superioe and Vassal, 11, . 311 Duress. Fraud, 1, 2, . . . . . .163 Election, doctrine of See Approbate and Reprobate. See also ff«iV, 78, 80, 176,177 by lunatic. Legitim, 13, . . . . . 224 under foreign wills. Foreign, 8, 9, 10, . . . 156 Election of Magistrates, ...... 73 Professors. College, 1-5, .... 85 English committee of lunatic suing in Scotland. Action, 3, . 2 bankruptcy, not bar to sequestration. Bankruptcy, 26, . 58 claims in Chancery does not exclude action. Bona Fides, 3, 68 debts. Foreign, 4, 7, 13, . . . . 155, 156, 157 law, how proved. Appeal, 95-97, ... 35 wiU. Will, 7 333 English Judges Consulted. House of Lords, 26-28, and note, 183, 184 Entail, ........ 112 obligation to make. Entail, 24, 25, 103, . . 115, 128 Entailer's debts, ....... 135 Real Burden, 2, . . . . . 281 Entry of Tenants. Landlord and Tenant, 47, . . . 213 Heirs. See Service of Heirs. Equity. Law Administration, 1, . . . . 218 Erasure in Deeds, ...... 108 Erasure in caption, fatal. Bankkuptot, 17, ... 57 in merchant's accounts. Evidence, 22, . . . 148 Error op Law or Fact, ...... 145 Error of law in arbitrations. Arbitbation, 19, 22, 23, 24, . 49, 50 of fact in contracts. Contract, 3, 7, 12, . . 86, 87, 88 Conveyancing, 12-24, . . . 90-92 Landlord and Tenant, 55, . . 214 in deeds. Entail, 88, 201, . . . 125,142 clerical, in judgment. Appeal, 61, 150, 169, . 31, 40, 42 Estuaries. Salmon Fishing, 13-17, .... 291 Evidence, ........ 146 objections to. Action, 124-138, .... 17-19 improper, before court or jury. Appeal, 112, 37 in arbitrations, objections to. Arbitration, 9, 11, . 47, 48 as to insurance. Insurance, Marine, 22, 23, . . 203 in another action. Evidence, 2, 16, 24, . 146, 147, 148 INDEX OF SUBJECTS. 377 Evidence, in another action. Executok, 3, Evidence to contkol Wkitino, Exeambion. Acquiescence, 4, . . . . Entail, 178, ..... Pkopekty, 20, ..... Exception does not require proving tenor of lost deed. Pbovinq THE Tenoe, 8, . of deed gratuitous and unrecorded. Reduction, 10 Exchange, foreign. Sale, 10, ... . Exchequer, Officers of. Public Office, 6, . Court of. See Court. Excise, ....... Executor, ....... of English will. Fokeion, 13, 16, 18, 19, liability for interest. Bona Fide, 2, EXECUTRY, ....... Exhibition, action of. Heiks, 61, . Peer, 4, . Expenses, appeal on question of, . petition for, allowed. Appeal, 177, 178, contra. Appeal, 185, of party withdrawing from action. Action, 22, in arbitration. Arbitration, 4, . excessive. Law Administration, 4, decree for, in name of agent. Reduction, 19, . Expressio unius est exclusio alterius. Statute, 9, Facility. See Personal Capacity. plea of, not excluded by prescription. Factor, Presckiption, 16, Pagb 150 239 1 140 267 269 283 287 274 149 149 157 68 150 174 254 31 43 44 27 47 218 285 305 261 151 See Salary. for landlord. Landlord and Tenant, 17, 24, mercantile liability of. Principal and Agent, -21, 209, 210 263-265 Facts to be stated in interlocutor of Lord Ordinary. Action, 153, 154, findings in, exclude further evidence. Appeal, 88, 90, if not stated, no appeal lies. Appeal, 118, remit to consider error in. Appeal, 121, Faculty. See Power. Bean of. See Dean of Faculty. Falsa demonstratio. Statute, 17, 18, False imprisonment. See Wrongous imprisonment. Father as administrator for children. Minor, 16, 18, Fee and Liferent, ...... Ferry, ....... Feu-duties, .... Findings in fact. See Fact. law. Action, 151, .... 21 13 16 17 306, 307 235 151 260 311 20 378 INDEX OF SUBJECTS. Page Findings in law. Appeal, 42, . .30 Fire Insurance. Insukance, 2, . . . . . 199 Fire, liability of landlord for. Landloed and Tenant, 6, 8, . 208 liability of vassal to rebuild after. SuPEnioa and Vassal, 26, 313 Footpath. Way, 2, ...... 330 Foreign, ........ 155 money. Action, 145, 146, .... 20 courts, judgments of. Foreign, 31-39, . 159, 160 proceedings before. Evidence, 2, . . 146 debts. Interest, 6, 9, . . . . 205, 206 attachment. See Arrestment. Forfeiture, ..... Error of Law, 1, by heir of entail. FoKrEiTCKE, 14, 15, 16; Heirs, 9, Fraud, ..... bars cessio honorum. Bankruptcy, 19, ex facie, reduction on ground of. Provision, 14, . in shareholders or directors. Partnership, 50, 51, Freeholders, Court of. Member of Parliament, 5, 11, 12, Freemen in burghs. See Burgh. Freight. Shipping, 1, 8, . Insduancb, Marine, 30, 31, . agents entitled to relief of. Principal and Agent, 5, Future estate, conveyance of. Heirs, 5, . Game, ..... damages by. Appeal, 118, . Gaming debt. Bond, 9, .... . See also Wager. Gaol, escape from, liability of keeper. Bankruptcy, 50, . magistrates. Burgh, 39—41, Glebe, ...... Goods and gear. Heritable and Moveable, 2, in comniunion. Lbgitim, 2, 4, Grass glebe. Parish, 18, 24, 25, . Grassums in entailed estate. Entail, 113, 118-125, Bona Fide Possession, 3, Ground annual. Scpertoe and Vassal, 34, Guarantee, ....... of payment of bills. Written Document, 11, Principal and Agent, 9, 11, 12, Guardian. See Tutor — Curator. English. Minor, 7, Habit and repute. Husband and Wife, 1-20, Harbour, . . . . 160 145 162, 163 167 163 57 272 248 231, 232 302, 303 204 263 166 164 37 70 61 59,60 240 178 222, 223 240, 241 129, 130, 131 68 312 165 340 263, 264 233 184-187 268 INDEX OF SUBJECTS. 379 Harbour, assessment of. Poor-bates, 8, dues. Public Works, 3, Hayer destroying documents. Action, 80, Hearing in House of Lords, House of Lords, 15-25; facts discovered on. Appeal, 101, Heir and Executor, Heirs, ..... Representation of, . Master and Servant, 2, of cautioner, bound. Cautioner, 35, of provision, service of. Heirs, 48-52, whatsoever. Heirs, 7, 38, Heritable and Moveable, . Partnership, 33, Heritable bond. See Security. Holograph writing. Will, 9, Homologation. Partnership, 64-57, Horse, warranty. Sale, 28, Hospital. See Charity. Hotchpot. See Collation. House of Lords, . ... privilege. Appeal, 3, Hunting. See Game. Husband and Wife, .... Hypothec, landlord's. Landlord and Tenant, 15, 19-23, law agent's. Law Agent, 13, Illegal agreement. Law Agent, 9, . Burgh, 23, . Contract, 17, 18, Improvements. See Meliorations. in entailed estate. Entail, 162-167, by tenants. Landlord and Tenant, 69-62; Income of Trust Estate, Incorporation. See Corporation — Burgh. Indefinite Payment. Debt, Indemnity clause. Statute, 1 , Trust, 37, Indian interest. Interest, 9, Executor, 4, Infant. See Minor. Infbftment, . . . ■ ■ on a me holding. Cautionjek, 22,. Security, 7, Inhibition, .... recall of. Arrestment, 3, Page 258 275 12 34 182, 183 36 177 166 175 129 89 172, 173 167-170 178 246 333 249 289 180 25 184 209, 210 220 219 73 137, 138 215, 216 324 105 304 323 206 150 197 78 295 198 51 380 INDEX OF SUBJECTS. Page Insanity, deed during intervals of. Personal Capacity, 8, 10, 12, 255, 256 Institute of Entail, ...... 118 debts of. Entail, 156, . . .136 Insurance, ........ 199 payable to widow. Husband and Wife, 65, . . 194 Insurance, Marine, ...... 200 Interdict, ........ 204 Interdiction of lunatic. Lunatic, 1, . >' . . . 228 Interest, ........ 205 in adjudications. Adjudication, 1, 3, 6, . . .21,22 charged against executor. Bona Fide, 2, . . 68 Interpretation of Statute, ...... 304 of will, ...... 333 of deed. See Written Document. Interrogatories to party in action. Member of Parliament, 5, . 231 Personal Capacity, 5, . 255 Interruption of Prescription, ..... 261 Intimation of Assignation, ...... 52 Intoxication, avoiding deed. Personal Capacity, 7, 14, 17, 18, 255, 256 Reduction, 10, . . . 283 Investiture. See Heirs. Investments by trustees. Trust, 37, Irritancy in entail. See Entail. in lease. Landlord and Tenant, 10, Issues, cannot be explained by pleas. Action, 119, uncertainty in. Action, 113, 120, 122, superseded by admissions. Appeal, 120, Joint and several liability, action on. Libel, 4, Jointure. Husband and Wife, 39, Judges, ..... declinature of. Court of Session, 12, House of Lords, 15-17, liability of, for slander. Court of Session, 11, Sheriff, 71, Judge's directions. See Bill of Exceptions. Judgments of House of Lords, authority of, . in declarators. Appeal, 116, agreeing in substance with Court below. Appeal, 105, when parties do not appear. Appeal, 84, Judgments written or oral. Court of Session, 16, 17, Jurisdiction of Court of Session, .... not ousted. Partnership, 42, in case of English wills. Will, 323 209 15 16 17 38 226 190 96 96 182, 183 96 300 35 180 37 36 34 96 94 247 332 Foreign, 17-19, 157 INDEX OF SUBJECTS. 381 Jurisdiction of Court of Session, over presbytery. Patkonaoe, 13, excluded. Statute, 22, of inferior courts. Coubt of Session, 4-8, See also Sheriff. prorogation of. Acquiescence, 5, Action, 105, . Appeal, 49, . by arrestment ad fund. Action, 19, . Admiralty, 4, Jury Trial, ...... Jus crediti of children. Provision, 3, 5, 9, 20, of heirs of entail. Entail, 6, 103, of wife in provisions. Husband and Wife, 40, Jus devolutum. Patronage, 1, . Jus mariti, seclusion of Hosband and Wipe, 59, 63, Jus qucesitum tertio. Contract, 6, . Law Agent, 21, 23, . Reduction, 13, Jus relictce, renunciation of. Legitim, 2, . Justices op Peace, .... Kindly tenants. Landlord and Tenant, 1, Kirk Session. Action, 2, . Fagb 255 307 95 1 14 30 4 23 13 270, 271, 273 113, 120 190 252 193, 194 87 221 284 222 206 208 2 Lake. See Loch. Landlord and tenant, Land tax. Valuation, 1, Lapse of time. See Acquiescence. Latent burdens. Law Agent, .... liability of, expenses of, in sequestration. Bankruptcy, 28, responsible for pleadings. Counsel, 4, may be suspended. Sheriff, 7, Law of England, how ascertained. Appeal, 95-97, influence of.' Law of Scotland, 1, 3, 4, Law of Scotland, ..... Lead ore. Statute, 27, . . Lease, Constitution of, . Assignation of, . to landlord. Assignation, 11, construction of, . Legacies, .... Legal, expiry of. Adjudication, 7, 8, 9, Legitim, .... discharge of. Provision, 22, Legitimacy, .... 207 327 90 219 220 58 94 300 85 222 222 308 210 212 52 213 235 22 222 274 224 382 INDEX OF SUBJECTS. Page Legitimation, ... . . 225 Libel, ........ 226 Lien, claimed by bookseller. Sale, 27, ■ . 289 solicitors. See Hypothec. Law Agent. LiFERENTEB, ...... . 227 Lex loci. FoBEiGN, 14-39, . . . 157-160 Limitation of estate. See Destination. of actions. See Prescription. introduced by implication. Statote, 20, . 307 Lis alibi pendens. Action, 52, . . ... . 8 Bona Fide, 3, . .68 Ckown, 5, . ... 97 Locality in Augmentation, . . . 315 Locb. PiioPEKTY, 20, 21, . . . . 267 Long lease. Landlord and Tenant, 2, 3, . . . 208 Lord Advocate, as party. Action, 9, . .3 in appeal. Appeal, 71, . . 33 right to reply, do., 89, . . . . 34 Lunatic, ...... .228 may defer election. Legitim, 13, . . . 224 Macbinery. Heritable and Moveable, 10, ... 179 payment for use of. Landlord and Tenant, 22, . 210 Magistrates, order of, appealed. Appeal, 8, . .26 in burgbs. See Burgh — Justice of Peace. Maills and duties. Adjudication, 5, 6, . . . .22 Landlord and Tenant, 15, 16, . . 209 gives possession. Security, 12, . 295 Mala fides. See Bona Fides. Malice. Action, 35, ...... 6 of Judges. Court of Session, 11, . . . .96 Sheriff, 7, 300 in libels. Libel, 4, 6, 7, . . • • 226, 227 Malicious prosecution. Damages, 14, ... . 100 Partnership, 43, . . . . 247 Mandatory. Action, 20, ...... 4 Manse, 240 Marches. Property, 10-15, . . . . 266 Marine Insurance. See Insurance, Marine. Marksman, Law Agent, 8, . . . . . . 8 Marriage, Constitution of, . . . . . . 184 Action, 104, .... 14 Restraints on, ...... 187 with deceased wife's sister. Husband and Wike, 21, . 187 contract, 34^54, 189-192 English. Foreign, 2, . . . . 155 INDEX OF SUBJECTS. 383 Married woman, powers and liabilities. Husband and Wife 126-130 oatli by, in sequestrations. Bankruptcy, 33, cannot make good title. do., 63, may be trustee. Trust, 17, Marshalling assets. Provision, 3, . debts. Entail, 152, Hbies, 71, . Heir and Executor, 1-6, Master and Servant, . • . . liability of, for acts of servant. Master and Servant, 4, 5 do., 7-10, liability to servant, Measures, imperial. Statute, 30, . Meditatio Fug.«!, .... Meliorations, claim for, in entail. Inhibition, 3, of heir of entail. Bona Fide, 4, liability of singular successor for. Convbyanctng, 21, Member of Parliament, Merchant's Books. Evidence, 5, 9, 22, 24, Militia. Insurance, 1, Statute, 26, Mines ahd Minerals, Minor, .... Minutes of meeting not evidence of agency. of Presbytery, signed afterwards. MisoROPPiNG by tenant. Landlord and Tenant, 12, 63-6f Misrepresentation in insuring, . . . " . of authority. Principal and Agent, 3 by company. Partnership, 49-52, . Misrepresentation in Sales, .... of land, Mistake. See Error, Mortification. See Charity. for stipend. Pabish, 15, Mother, entitled to support from son. Damages, 12, MULTIPLEPOINDING, ..... Page 188 59 63 320 270 135 175 177 229 229 229-230 308 Evidence, 16, Presbttbrt, 2, Narrative, eiFect of. 'Vy'RiTTEN; Docuhent, 4, Negative Prescription, .... Prescription, 20, . Neutral vessel. Insurance, Marine, 3, . Newspaper. Libel, 1, 2, 10, ... New Trial, ...... may be ordered by House. Action, 116, 122, Non-entry. Superior and Vassal, 29, 30, Notice, ..... Notour Bankruptct. See Bankruptcy. 230 199 69 91 231 146-148 199 308 232 233 147 258 209, 216 201 262 248-249 285 90 240 100 236 339 259 261 200 226-227 17 16,17 313 236 384 INDEX OF SUBJECTS. Page NUISAUCE, ....... 236 Oath op Party, ...... 12 in declarator of marriage. Appeal, 122, . 38 in sequestrations. Bankruptcy, 24, 32, . 58 of drawer of bill. Bill of Exchange, 9, 66 of indorser of accommodation bill. Bill of Exchange, 14, 66 of grantor of improbative bond. CounsbLj 1, 99 of counsel, do., 3, 94 of supplement. Evidence, 9, ... 147 Offer, ....... 286 Office. See Public Office, 98 caution for. See Cautioner. Onerosity. See Consideration. Open doors, warrant of. Sheriff, 5, . . . . 300 Orphanage. Legitim, 12, ... . 224 Outlaw, ........ 237 Papist, ....... 237 Parish, ....... 238 quoad sacra. Partnership, 29, . 245 assessments. See Poor Rates. Parties, ....... 3 objection of want of. Action, 37, ' . 7 in appeal, ...... 33 liable in relief may be added. Sheriff, 16, 302 Partnership, ...... 242 Parts and Pertinents, ..... 265 include lands. Entail, 21, 115 Passive titles. Heirs, 68-73, .... 175 Patent, ....... 251 Pater est quern nuptice demonstrant. Legitimation, 4, . 225 Patronage, ....... 252 Pauper, suing. Action, 8, . 3 appealing. Appeal, 7, 1 86, 205, . 26,43 costs of, ..... . 45 Payment of Legacies, ..... 337 Pawnbroker, ...... 254 Peer, ........ 254 oath by. Action, 76, .... 11 Trust, 2, . 318 aliment of, ..... . 25 Peerage, procedure in. Action, 10, ... 70 law of succession to. Legitimation, 2, 225 Penal Statutes, ...... 306 Penalties, prosecution for. Action, 27, . 5 Copyright, 1, . 92 INDEX OF SUBJECTS. 385 Pleas in law, cannot supply statement. Police, Comrs. of, not liable to be sued. Paqe Penalties, in adjudications. Adjudication, 1, 3, . . . 21, 22 in bond. Bond, 3, 4, . . . .70 in contracts. Contract, 8, . . . .87 grant of, does not take away right of interdict. Cor- poration, 4, . .... 73 Copyright, 2, ..... 92 Penalty in lease. Landlord and Tenant, 50, . . . 214 for miscropping, 63-66, ..... 216 of usury. Usory, 2, ..... 327 in statutes does not imply illegality. Statute, 9, . . 305 Pension. Crown, 10, ... . .98 Personal Capacitt, ..... . 254 Pleading, evidence against party. Evidence, 24, . . . 148 Pleadings, ........ 5-9 looseness of. Action, 44, 96, . . . 7, 13 Law Administp^tion, 3, . . . 218 scandalous and impertinent. Action, 24, . . 5 Sheriff, 7, 300 Appeal, 114, . . 37 Damages, 17, . . 100 Statute, 28, . . 308 Policies, assignation presumed in security. Written Document, 20, 341 Policy of insurance. Husband and Wife, 65, . . . 194 illegal. Contract, 17, . . . . .88 loan on. Insurance, 3, . . . . .199 See Insurance, Marine. Poor, Support of, ....... 257 Poor-rates, . . . . . . . . 257 Poor-roll. See Pauper. interlocutor placing on, not appealable. Appeal, 22, . 27 Port. Insurance, Marine, 7, .... . 201 Positive Prescription, ...... 260 Possession supporting title. Adjudication, 4-10, . . 22, 23 Coal, 4, 5, . . . .83 Patronage, 4, 7, . ■ . 252 Property, 1-6, . . . 265 Salmon Fishing, 21-29, . 292, 293 Possessory judgment. Sheriff, 4,. . . . . . 300 Powers, exercise of. Conveyancing, 8, . . . .90 after divorce. Husband and Wife, 68, . 192 on deathbed. Deathbed, 2, 3, 8, 9, 15, 20, 101-104 of appointment of heirs. Entail, 16, 20, 23, . 114, 115 Fee and Liferent, 6, . . 152 of leasing, &c. Entail, 111-133, . . . 129,132 of granting provisions. Entail, 134r-146, . 132-134 to appoint factor. Factor, 3, . . . .15 to alter settlement. Heirs, 43, 44, . . 171. 172 2b 386 INDEX OF SUBJECTS. Powers to trustees to sell and convert. Heritable and Move- able, 13-18, .... Trust, 48, further exercise. Provision, 7, form of exercise. Will, 6, Practice, how far appealable. Preamble of Statute. Statute, 11, Precedents, weight of. House op Lords, 1-14, Premium of insurance, return of. Insurance, Marine, 5, Presbytery, ...... Prescription, ..... on adjudications. Adjudication, 6-10, on bills. Bill of Exchange, 2, 4, on entails. Entail, 203-213, interruption, .... by sequestration. Bankrctptoy, 73, supported by acts at intervals. Coal, 5, on foreign contracts. Foreign, 20-30, Presentation to church. See Patronage. Presumed Payment, .... Price, payment of. Conveyancing, 9-11, . Principal and Agent, .... Private Act of Parliament. Public Works, 6, 10, 12, Privateer. Belligerent, 3, ... Prize. See Belligerent. Insurance, Marine, 3, 4, . Probative writ. See Deed. bank-book not. Bank, 8, . Process, borrowing of. Sheriff, 15, Procurator-fiscal, action against. Damages, 13, 14, 16, Productions, ..... Promise, without consideration, void. Assignation, 6-8, Propelling fee of entailed estate. Entail, 213, Property, ...... Prorogation of bond of caution. Error of Law, 2, jurisdiction. See Jurisdiction. Proving the Tenor, ..... Provision to Children, .... in entails, . Heir and Executor, 6, Provisional committee. Partnership, 31, Public Works, 21, 22, 26, Public burdens, what. Superior and Vassal, 19, Public funds. Heritable and Moveable, 3, Public Office, ..... Works, ..... Purchase by common agent. Acquiescence, 2, 179, 180 325 271 332 30 303 180-182 200 258 259 22,23 56 144, 145 261 6i 83 157, 158 104 90 262 276. 277 65 200 53 302 100 11 22 144 265 145 268 270 182, 136 177 254 278, 279 312 178 274 275 1 INDEX OF SUBJECTS. 387 Page Purchase by common, agent. Tetjst, 30, . . . . 322 law agent. Law Agent, 1, 12, 14, . . 218-220 trustee. Trust, 30-35, . . 322, 323 Public Woees, 16, . . . 278 Purchaser. See Singular Successor. Quarries. Crown, 9, ...... 98 Landlord and Tenant, 56, . . . . 215 Public Works, 1, 4, . . . . 275 Railway tolls. Action, 8, . . . . . 3 Public Works, 7, 25, 27, . . 275, 279 charges. 17, ..... . 278 powers to take land. 8, 10, 12, 20, . 726, 278 contracts to purchase land. 21, 23, 26, . . 278, 279 deviation Iftnits, 10, 12, . . . 276, 277 crossings. 9, 20, 28, 29, . , . . 276, 278, 279 arbitration. 14, 28, ... . 277, 279 Arbitration, 26, . . . .50 compensation to tenants. 24, .... 50 meetings. Public Works, 13, 15, ... 277 stations, assessment of. Poor-rates, 10, . . 258 Ranking of Adjudications, ..... 23 in sequestrations, ..... 60 AND Sale, . . . . . ' . 280 Real Burden, ....... 281 See Seritable. Receipt unstamped, when evidence. Stamp, 4, . . . 304 of money, how provable. Evidence, 8, . .146 Debt, 2, . . . 104 Recitals. See Narrative. Reclaiming, ....... 9 judgment may be explained after expiry of days. Action, 143, . . . . . .20 Recognition. Superior and Vassal, 28, .... 313 Record may be opened of consent on remit. Appeal, 119, . 38 limits proof of general issue. Action, 106, . . 14 Recoveries, observations by Lord Eldon. House of Lords, 4, . 181 Redeemable title. CoNVETAJirciNG, 1, 3, 6, . . . . 89 Entail, 3, . . . . 112 Reduction, . . ..... 283 Reference to arbitration, ...... 46 by counsel. Counsel, 5, . . . .94 Register, publication of, not libel. Libel, 8, . . . 227 Registration of contracts. Contract, 1, . . .87 entail, ...... 140 bond acts as intimation. Security, 12, . . 296 388 INDEX OF SUBJECTS. Registration of voidable deed renders reduction necessary. Reduc- tion, 10, errors in. Infeftment, 7, ■ Inhibition, 5, . Rehearing of Appeal. Hottsb op Lokds, 5, Relevancy of summons. Action, 31, 64, . pleas objected to on appeal. Appeal, 87, Relief, stipulation of. Bond, 1, bond of. Bond, 6, . between heirs. Entail, 152, Heirs, 71, . heir and executor. See Heir and Executor. Heritable and Moveable, 5, of wife paying debts. Husband and Wipe, 44, Relocation, tacit. Landlord and Tenant, 5, 17, . Remit, Judicial, ..... Action, 25, ... is decision on merits. Appeal, 25, 26, excludes review. Appeal, 13, BY House of Lords, . . . Procedure on, to add parties. Appeal, 76, 78, Removing of tenants. Landlord and Tenant, 5, 10, 47-54, notice of. Landlord and Tenant, 17, . Renunciation of provision. Provision, 1, 4, 8, 13, 14,'21, 22, Repetition, claim for. Error of Law, 3, 4, Excise, 4, . not granted without reduction. Reduction, 18 Reponing. Action, 63, . Reports, observations on. Law Administration, 2, 3, Representatives, personal. Action, 21, 32, Fraud, 6, Residue, meaning of. Will, 12, . Resignation ad rem. does not extend entail. Entail, 13, Res Judicata, ..... of an arbitration award. Arbitration, 25, against heirs. Heirs, 6, Res Noviter Veniens, .... in arbitrations. Arbitration, 15, Restraints on Marriage, . . . . Retrospective effect of Statute. Statute, 12, Revocation of assignation to son. Assignation, 4, deed. Deathbed, 8, 9, 14, 15, 20, entail. Entail, 65-71, destination. Heirs, 1-21, 40-47, settlement. Heirs, 11, by deed abroad. Foreign, 12, Page 283 197 199 181 6,10 34 69 70 135 175 178 191 208 12 5 28 26 35 21- 33 208-9,213-14 209 270-274 145 149 284 9 218 5,6 164 333 114 8 60 166 10 49 187 305 51 101-104 122 166-S, 171-2 166 156 INDEX OF SUBJECTS. 389 Revocation by deed abroad. Heiks, 43, 45, See Donatio inter virum et uxorem. Also Husband and Wife, 53, 54, River, right to embank. Propertt, 19, navigable, bed of. Crown, 3, Roads, right to, . See Way. Road trustees. Trust, 55, 56, Wat, 1, Royal burgh. See Burgh. minister's manse. Parish, 20, 21, Running letters. Wrongous Imprisonment, 4, Runrig lands. Propertt, 14, right to coal under. Coal, 3, . Rutheefurd Act, .... Page 171, 172 192 267 97 267 326, 327 330 241 343 266 83 144 Salary, ...... .88 of office, how far attachable. Bankruptct, 22, . . 57 when appointment void. Bona Fide, 6, . . 69 Public Office, 7, . 275 factor. Acquiescence, 6, . . . . . 1 clerk. Written Document, 18, ... 341 Sale, ........ 286 Sale of lands. See Conveyancing. Servitude, 7, ..... 297 Salmon Fishing, ....... 290 Salvage, insurance of. Insurance, Marine, 4, . . . 200 Sanctuary, ........ 294 Sasine, objections to. Inpeftment, 7-16, . . . 197, 198 precept of, not exhausted, 14, 15, .... 198 Satisfaction of legacies, . . . . ... 336 provisions. Provision, 6, 8, 12, 15, 16, 18, 271-273 Schedule of Statute. Statute, 8, . . . . 305 School, 294 Sba-shoee, land acquired from, ..... 268 Sea-ware. Property, 1, 3, 8, . . . . 265, 266 Seaworthiness. Insurance, Marine, 24-26, . . . 203 Secueitt, .... ... 294 Seduction, ...... .99 Separation. Husband and Wife, 77, 81, . . . • 196 Septennial prescription. See Cautioner. Sequestration for Debt, ...... 57 rent. Landlord and Tenant, 15, 19-23, 209, 210 of real estate, ..... 296 Servants. See Master and Servant, Will, 11, . . ... 333 Service of Heirs, . . ... 172 390 INDEX OF SUBJECTS. 307 243, 251 248 249 300 300 303 91 209 208 Page Servitude, .... ... 296 of use of water, ...... 296 of light. SERVITtTDE, 8, .... 297 ne altius tollendi. Servitxxde, 9, . . . 298 of pasturage. Sekvitude, 14, 18, 22, . . 298, 299 of golf. . Servitude, 13, .... 298 of walking. Servitude, 15, . . . . 298 stilUcidii. Appeal, 19, .... 27 Set off. See Gompensation. Shall or may appeal. Statute, 22, Share of profits, liability consequent. Partnership, 9, 67. Shareholders, liability of. See Partnership, Public Works. representations by. Partnership, 49, Shares, transfer op, ... . Sheriff, ...... Court, not court of record. Sheriff, 8, . SHIPPINfl, ...... Singular successor. See Conveyancing. not liable for meliorations. CoNVErANCiNG, 21, bound by lease. Landlord and Tenant, 11, . right to remove tenants. Landlord and Tenant, 5, Slander. See Libel. Solicitor. See Law Agent. Solicitors before Sheriff Courts. Sheriff, 3, Supreme Courts. Court op Session, 3, Widows' Fund of. - Corporation, Spes successionis, contract respecting. Succession, 2, Spuilzie. Damages, 2, 3, . Stake nets. Salmon Fishing, 6, 7, 9, 12, 13, 14, 16, Stale demand. Acquiescence, 7, ■ Stamp, ....... Stamp, objection on, not pressed. Assignation, 8, ■' . in sequestration. Bankruptcy, 25, 29, defect in, fatal to a bill. Bill of Exchange, 13, . Statute, .... Stent nets. Sauhon Fishing, 3, Stipend, .... during vacancy. Parish, 17, Patronage, 2, Stonp net. Salmon Fishing, 10, Streets, buildings in. Statute, 28, See Dean of Guild. Sub-agent, liability for. Principal and Agent, 13, Submission, ...... Subscription, Substitutes of entail. Entail, 6, 103, 159, 160, 168-173, 210, 7, 300 94 93 309 98,99 290, 291 1 304 52 58 66 304 290 289 240 252 291 308 264 46 106 213, 113-144 INDEX OF SUBJECTS. 391 Substitution in Moveables, Succession, ..... discharge of right. Heiks, 20, . Duties, ..... Summons, ...... amendment of. Action, 30, 36, 38, 40, 42, 43, See Gondescendence. Sunday. Statute, 25, 30, . Superior and Vassal, .... rights of, to coal. Coal, 1-6, Surety. See Cautioner. Survivorship, clause of. Will, 20, Suspension of executed decree. Reduction, 16, 19, and interdict against election. Buegh, 37, Tacting of incumbrances. Security, II, Taillie. See Entail. Teinds, ..... Tender, effect on costs. ^ Appeal, 180, illegal arrest. Damages, 7, Tenendas in burgage charter. Burgage, 2, containing grant of coal. Coal, 3, Terce. Husband and Wipe, 67, 68, Testing Clause, .... Thirlage, ..... in burgage. Burgage, 1, Time, computation of. Deathbed, 6, Title, making up. See Service of Heirs. Entail, . to exclude. Presceiption, 17, Toll, grant of, to burgh. Buegh, 4, 18, railway. Acquiescence, 8, Town-clerk. Buegh, 13, 14, 16, council. Burgh, 6, . members may appeal. Appeal, 81, fands. Buegh, 17, . Transmission of action. Praud, 6, Treason. See Forfeiture. Triennial Peescription, . Trout fishing. Salmon Fishing, 27, Trust, ..... right to heritage is heritable. Heritable and Moveable, may be dealt with by beneficiaries. do. for creditors, for trustee, Sbcueitt, 11, . does not exclude creditors. Provision, 19, Trustee, rights and duties, .... Page 335 309 168 309 4 6,7 308 310 83 335 284, 285 75 296 314 43 99 70 83 195 107 317 70 101 140 261 71,73 2 72 71 34 73 164 259 292 318 18, 180 16, 180 325 296 273 320 392 INDEX OF SUBJECTS. Trustee, liabilities, .... declining to accept. Trust, 13, . acting as solicitor. Trust, 33, 38, appealing, liable for costs. Appeal, 82, in sequestration, . removal of. Bankruptct, 38, latent, assignation by. Partnership, 53, for creditors, personal liability. Brroe, op Law, taking assignment. Husband and Wipe, 56, Tutor. Minor, 4, 7, 8, 12-15, married woman as. Husband and Wipe, 26, Uncertainty, bequest void for. Oharitt, 4-9, Union, clause of, in charter. Inpeptment, 1-5, University. See College, Usage to interpret Statute. Statute, 6, to interpret deeds. Written Document, 14 of trade. Do., 24,26 USURT, . . • . . Valuation op Teinds, Valued policy. Insurance, Marine, 2, Verdict of jury, Veritas convicii. Libel, 9, 10, Vesting, Fee and Liperent, 18, 20, Husband and Wipe, 61, Vicennial Prescription, View. Action, 98, . Violent profits, liability for. Bona Fide Possession, 3, 5, of heir of entail. Vitious intromission. Heirs, 69, Do., *, Wager, War, trade during. Belligerent, 5, Warrandice, ..... of horse. See Horse. Warrant, criminal. Wrongous Imprisonment, 3, . of search. Do., 1, Waste by tenant in possession. Entail, 112, LiPEIlENTEK, 1, Water, rights to, . . . . . rights of adjacent owners. Coal, 6, 7, 8, 14, privilege. Superior and Vassal, 5, company. Burgh, 19, 20, . Servitude, 6, . . . assessment of. Poor-rates, 9, Pare 822 320 323 34 62 59 249 145 193 233; 234, 235 188 . 81, 82 197 85 305 340 341, 342 327 314 200 16 327 328 164 192 259 14 68 69 175 329 65 329 342 342 129 227 267 83,84 310 73 297 258 INDEX OF SUBJECTS. ?93 Page 267 330 2U, 216, 217 Water pipes. Peopbrtt, 16, Wat Waygoing crop. Landlord and Tenant, 51-54, 67-72, Weakness of mind, ^ee Facility. Whale Fishing, ..... oil boiling. Nuisance, 1, . Whitsunday. Landlord and Tenant, 17, 51-54, . Widows' Fund of Church of Scotland. Parish, 17, Soo. of S.S.C. Corporation, 7, Widows, allowances to. Corporation, 1, 7, Will prior. Bona Fide, 2, EXBCHTOE, 5, foreign. Foreign, 8-12, Witness, prevaricating. Court of Session, 2, to deeds. See Testing Clause. evidence of Deed, 6, 7, 8, discrediting. Evidence, 4, ahroad. Evidence, 25, . Woman, unmarried, may assign bond in trust for herself. Assig NATION, 1, . . . . Wreck. Admiralty, 3, . Insurance, Marine, 27-31, Writers to the Signet, Corporation, 2, right to seats. 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