Glenfinlas Street, and find the reclaimers entitled to expenses so far as refers to this branch of the cause; and quoad ultra remit to the Lord Ordinary to dispose of the cause." Lord Ordinary, Murray.-Act. Penney, E. S. Gordon; D. J. Macbrair, S.S.C. Agent.-Alt. Dean of Faculty (M'Neill), Mackenzie; Arnot and Malcolm, W.S. Agents.-W. Clerk-F.H.| 23d November 1849. SECOND DIVISION. No. 17.-DAVID LOWRIE, Pursuer, v. JAMES JEFFREY and JAMES FRIER, Defenders. Expenses Process- In a case where there had been unreasonable procedure on both sides, and the Lord Ordinary, in respect of the special circumstances of the case, found no expenses due by either party- Circumstances in which the Court adhered; but intimated, that the proper course in such a case was, to find each party entitled to expenses in so far as he had been successful. The pursuer, as proprietor of certain heritable subjects in the West-Port of Edinburgh, raised the present action of count and reckoning against the defenders for their intromissions with the rents, in virtue of their title as trustees under the settlement of the late Mrs. Margaret Goodall or Lowrie. The defender Frier was described in Mrs. Lowrie's trust-deed as " grocer, Lawnmarket, Edinburgh," and was called in the summons under the same designation. The messenger, in executing the summons, left the copy for him at the dwelling-house of James Frier, grocer, Lawnmarket, which, it appeared, was the house of the defender's son, of the same name with the pursuer, and occupying the same shop and house formerly possessed by his father. In these circumstances, the defender Frier stated a preliminary defence of no process, in respect that he had not been duly cited; and, founding on the same objection, Jeffrey pleaded, that all parties interested had not been called. "The Lord Ordinary having heard counsel for the parties on the preliminary defence stated in the defender's first plea, which the pursuer insists can only competently be pleaded by way of reduction, and the defender having proposed to obviate this objection by at once repeating a reduction, if the pursuer will consent to waive citation and the running of the induciæwhich, however, the pursuer refuses to do-supersedes farther consideration of the said defence till a reduction can be brought in common form." The defender Frier thereupon instituted an action of reduction in regular form; and the pursuer subsequently raised a supplementary summons of count and reckoning against him. The Lord Ordinary pronounced the following interlocutor: "11th July 1849.-The Lord Ordinary having heard counsel for the parties, conjoins with this process a process of reduction at the instance of the defender Frier, as also a separate supplementary action at the pursuer's instance against that party; and, 1st, in the said reduction, of consent, sustains the reasons, and, pro forma, reduces the original execution of citation against Frier, and decerns; 2d, in the supplementary action, repels the preliminary defences, and sustains the competency of the action; 3d, in this leading action, in respect of the reduction of said execution, finds the preliminary defence, rested on the irregularity of said execution, to have been in itself well founded; but in respect of the supplementary action, and that the defender Frier has been thereby de novo concluded against, and duly brought into Court, finds that any objection that might other wise have been competent because of said preliminary defence has now been obviated: And, finally, in all the conjoined processes, having a just regard to the special circumstances of the case, and, in particular, to the nimious and unreasonable procedure on both sides, finds no expenses due by either party to the other, so far as regards any branch of this preliminary discussion, and decerns; and, with these findings and decernitures, appoints the cause to be enrolled, that it may be proceeded in as accords upon the merits." The defenders reclaimed, and pleaded-That as the preliminary defence was sustained, they were entitled to expenses. In the course of the proceedings, a lengthened correspondence had taken place between the parties, and it was founded on by both to show that there had been unnecessary and unreasonable procedure. Lord Medwyn.-I don't like to touch the interlocutor of a Lord Ordinary in a case of expenses. And, really, the defenders seem here to have no claim for expenses. This man was called in the summons just as he was designed in the trust-deed. That designation certainly was not correct; but this was an action of count and reckoning, in which the defender says he was, or, at any rate, he ought to have been, ready to go into the merits at once. Instead of that, he makes this indefensible defence, which lies at the bottom of the whole difficulty. Lord Justice-Clerk.-I am much of the same opinion. At the sametime I must observe, that in all cases where the Lord Ordinary finds expenses due to neither side, the best plan is to give expenses to each on all the points on which that side has been right. I believe that is the true way of settling the matter in cases like the present; it is better than saying, You have both been wrong, and, therefore, we give expenses to neither. In this case, however, as the Lord Ordinary has adopted the latter method, I am not disposed to alter. Lord Moncreiff-I agree. I don't wish to differ from the Lord Ordinary on a point of expenses. Inglis, for defenders-Then, if the former expenses are to be disposed of in this way, the expenses of reclaiming should be treated in the same manner. Lord Moncreiff-No. We adhere. The Court pronounced the following interlocutor:"Adhere to the interlocutor complained of; refuse the desire of the note; and find the pursuer entitled to the expense of opposing the reclaiming note, but exclusive of the expense of the appendix of correspondence furnished by him; allow the account," &c. Lord Ordinary, Ivory.-Act. Moncreiff, Pattison; John Murray, junior, SS.C. Agent.-Alt. Inglis, Macfarlane; John Henderson, S.S.C. Agent.-T. Clerk.—|W.G.T.| 24th November 1849. FIRST DIVISION. No. 18.-SARAH MARSH, Petitioner, v. JOSEPH Arrestments on Dependence, Recal of—Caution—In a question *And be it enacted, "That from and after the said 31st day of December," (being the 31st day of December 1838), “it shall be competent to the Lord Ordinary in the Court of Session, before whom any summons containing warrant of arrestment shall be enrolled as judge therein, or before whom any action, on the The arrestments in question had been used by the respondent upon the dependence of an action raised by him as heir-at-law of the late William Henry Miller of Craigentinny, to set aside certain deeds settling the succession of the deceased's heritable and moveable property upon the petitioner. It may be shortly stated, that the late W. H. Miller executed a deed of strict entail of the lands of Craigentinny in favour of certain parties named in a deed of nomination executed of the same date as the entail; that the deed of entail specially excluded from the succession the heirs of a particular person, of whom the respondent was one; and that the deed of nomination settled the lands on the petitioner and certain substitutes. On 30th October 1838 he executed a revocation of the fetters of the entail, but ratified the destination contained in it, declaring that he and the heirs called under that destination should possess the lands in fee-simple. He died on the following day. The action of reduction was founded on the respondent's alleged title as heir-at-law, and on the deed of revocation. It was contended by him that this deed was effectual to revoke the deeds adverse to his right, but ineffectual, ex capite lecti, to make the proposed new settlement in fee-simple, and, therefore, that he was entitled to succeed to the estate. On the dependence of this action he used inhibition and arrestment against the petitioner, who had entered into possession of the estate. The sums arrested were £4000 in the hands of the North British Railway Co., due by them in name of damages, and certain sums in the hands of tenants of the estate of Craigentinny. The Lord Ordinary recalled, without caution, the arrestment used in the hands of the railway company"and on the petitioner finding caution to the extent of £4000 sterling, and on the understanding and consent of the respondent that no arrestment shall be used of the rents of Craigentinny, to become due at Martinmas 1849, and Whitsunday 1850, recals the other arrestments complained of." The petitioner reclaimed. Cowan, for petitioner, contended that the arrestments should be recalled without caution; and cited Fullerton (Bargany case), 2 S. D. 264; and Earl of Hopetoun's Trustees v. Goodinge Johnstone, 1st Dec. 1838. Inglis, for respondent-There is a marked distinction between those cases and the present. There was not there any limitation of the caution, or recal of the arrestment. Here, the caution is limited to £4000, which is not more than a single year's rent. We do not claim the right of renewing our arrestment every year, nor do we read the interlocutor as giving us that right. We stand on the privilege which the law gives a pursuer. The Court cannot hold that our case is prima facie dependence whereof letters of arrestment have been executed, has been or shall be enrolled as judge therein, and to the Lord Ordinary on the Bills in time of vacation, on the application of the debtor or defender by petition duly intimated to the creditor or pursuer, to which answers may be ordered, to recal or to restrict such arrestment, on caution or without caution, and dispose of the question of expenses as shall appear just, provided that his judgment shall be subject to the review of the InnerHouse by a reclaiming note, duly lodged within ten days from the date thereof." worthless-that we are not entitled to that privilege. Besides, the want of information on the merits of the case is caused by the defender, who refuses to produce certain deeds, which, she says, would still exclude us, even if we were to succeed in this reduction, although we have called for these deeds. Moreover, this lady is a foreigner, having no connection with Scotland; and she may at any time, and when there seems a prospect of her losing this suit, leave the country, carrying the rents with her. Lord Advocate, for petitioner-My client is connected with Scotland. She is infeft in the estate of Piershill, in this country. The appropriate remedy here, if the other party were in a condition to ask it, is sequestration. If they are not in a condition to ask sequestration, they are not in a condition to arrest. In Hope Johnstone's case, the arrestment was loosed without caution. Anderson, in reply. Lord Justice-General.-There was, in this case, first, an inhíbition, and then an arrestment. The pursuer arrested a sum of £4000 in the hands of the North British Railway-a sum having no connection with the rents. That arrestment was recalled without caution. There were then the arrestments used in the hands of tenants. The inhibition secures this pursuer against the loss of his claim by alienation. The question is, whether security to the extent of £4000 is to be required before loosing these arrestments. The principle is, to loose the arrestments without caution where no risk is thereby incurred on the part of the pursuer. In the case of Bargany, the object of the arrestment was to impede the defence; and, therefore, we coupled the loosing of arrestment on caution with the proviso, that the arrester of the rents and funds should find caution to answer for the damage which might accrue from the maintenance of his diligence. I am inclined to adopt here the same procedure as that in the Bargany case. Lord Mackenzie.--When a suit is not vexatious, nor in bad faith, the pursuer has the right of arresting upon the dependence. Such arrestments may be loosed; but, generally, not without caution. A very strong case is required to justify a loosing without caution. Here, the first arrestment was recalled. There is no question as to the amount of funds arrested. The amount for which caution is to be found is £4000; and the reclaimer prays that the arrestment is to be loosed without any caution at all. I don't think there are grounds sufficient for a recal without caution. It is said that the usual course in such cases is a judicial sequestration; and that a party who is not in a position to ask for that remedy is not entitled to arrest. There is no authority for that proposition. A sequestration is in many respects a much stronger proceeding than an arrestment; for it cannot be loosed on caution, but the party is utterly dispossessed and superseded by the judicial factor. No doubt it protects from the effect of bona fide perception and consumption of rents. A sequestration may be refused where arrestment would be granted. It would surely be a strong thing to turn out a man from his possession of an estate merely because a lawsuit is raised against him. We cannot recal without caution, unless a very strong case be made out for our doing so. Your Lordship has proposed that we should do here what was done in the Bargany case: I see no great objection to that. Lord Jeffrey.-Let me understand the effect of this proposal. Is it to tie down the pursuer practically to maintain his arrestment in forma specifica, as it stands, and to prevent him from consenting to a recal on caution? It seems to me hard to drive him to that course, especially where the sum for which the Lord Ordinary thinks caution should be found is so small. Lord Mackenzie.-The caution to be found here is for a very moderate sum. In the Bargany case, caution was asked for £200,000. So far as I remember, my reason for suggesting to the Court the course which was followed by them in that case, was the very heavy sum for which caution was required, and also the long delay of the pursuer's challenge. The same reasons don't apply here. And the cautioner would have to answer if the sums were lost from remaining in the hands of tenants; which would be hard, seeing the other party is only asked to find caution to the extent of £4000. Still I don't object to the course proposed by your Lordship. Lord Fullerton.-The Bargany case was viewed as a very special one, and a very peculiar course was there followed. That course was not followed by the Court on any presumption that they would decide the case a particular way. This is not the ordinary case of an arrestment on the dependence of an action for the recovery of a debt. Even there, the Court will interfere to limit the sum for which caution is to be found. Here, the pursuer alleges a better title to the estate than that of the defender, and, on this ground, seeks to reduce the latter. I may observe that the pursuer's success in reducing the defender's title does not necessarily imply that he is to obtain repetition of the rents previously received bona fide. Is there here such a case set forth by the pursuer, that it seems probable not only that he will succeed in reducing the title, but also in getting repayment of the rents? We must look on the case as it stands. It is a strong thing to say, that, after a party has possessed an estate for many years, when an action of reduction is brought, he must find caution for the rents. Is the pursuer's title so clearly good, and that of the defender so clearly bad, that a liability to refund the rents as received in bad faith will accrue? The application for arrestment may be renewed if, on further investigation, it should turn out that the defender's case is so bad as to justify it. Lord Jeffrey. This is an application to the discretionary power of the Court. Arrestment on a dependence is the privilege and common law right of pursuers. We have the power of considering whether there is an abuse of this privilege; but, except in the case of Bargany, in which this power was otherwise exercised than by lessening the sum for which caution is to be found-down to zero, if necessary- I am not aware that any other mode of exercising that power was ever resorted to. In that case, a remedium extraordinarium was adopted. But I have a repugnance to adopt remedies of that sort. I like better to abate the amount for which caution is to be found, than to encourage a new kind of litigation for damages, to which the proposed cautioner for the pursuer would be exposed. It has been truly observed by Lord Fullerton, that success in the reduction does not necessarily imply that the pursuer will be entitled to pursue a forthcoming as to the rents now attached, if the defender shall make out a case of bona fide perception. In such a case, no doubt, the pursuer may have right merely to delivery over of the real estate, and to no personal fund-whether rents or anything else, which could properly be the subject of arrestment. Still we must contemplate the possibility of the pursuer's success, and of his being entitled to certain of the rents, in consequence of the defender's bona fides ceasing by a judgment against her, before the pursuer has access to the property. Therefore, considering the possibility of some pecuniary claims accruing to the pursuer, beyond the right to delivery over of the estate to him, I rather think some caution ought to be interposed. I do not think his case so unlikely of success that he should be deprived of that right. Nor do I think the defender's case so likely to fail, as to make a very heavy amount of caution necessary. I rather incline to mitigate the amount, and to propose its reduction to one-half. Lord Advocate-As my client is anxious to do anything in the way of reasonable accommodation, we consent to relieve the Court from the necessity of deciding the point, and shall find caution for £2000, as suggested by Lord Jeffrey, if this proposal be acceded to. Caution restricted to £2000. Lord Ordinary, Robertson.-Act. Lord Advocate (Rutherfurd), Cowan; Dundas and Wilson, W.S. Agents.-Alt. Anderson, Inglis; John Cullen, W.S. Agent.-W. Clerk.-[F.H.} 24th November 1849. FIRST DIVISION. No. 19.-Dr. JOHN MACDOWALL, Petitioner, v. WILLIAM LOUDON, Respondent. Factor, Judicial-Title to Sue-A creditor upon an unconstituted debt (an account ex facie prescribed) held to have no title to insist in an application for the appointment of a judicial factor on the heritable estate of a deceased debtor, which was in the possession of a party who claimed it as the debtor's heir, but had not made up a title. Prescription, Triennial-Question, Whether this prescription applies to an account for medical attendance continued till the day of the debtor's death-payment not being averred by the heir ? This was an application for the appointment of a judicial factor upon the estate of the late Miss Loudon of Fairy Knowe, who died on 19th September 1846. The petitioner made affidavit that there was due to him from the estate a sum of sixty-five guineas for medical attendance upon the deceased in the months of April and May 1846, and also during the month of September, till the day of her death. The respondent claimed the estate as Miss Loudon's heir, but had not completed his title by service. He was in possession of the estate, which was claimed by her Majesty as ultima hæres. Minutes of compearance were given in for the Crown, and for certain relatives of Miss Loudon on the mother's side, who had applied for a gift of her estate. Both compearers concurred in the petitioner's application. The Lord Ordinary pronounced the following interlocutor: "10th October 1849.-The Lord Ordinary having heard the agents for the parties, and resumed consideration of the petition of Dr. Macdowall, with the minutes of compearance for the Lords of the Treasury, and for James White and others, and whole productions, finds that the said Dr. Macdowall, who applies merely as an alleged creditor of the deceased Agnes Loudon, and produces no other evidence or voucher of his debt than an account which has ex facie fallen under the triennial prescription, has no legal title to insist in such an application, and therefore refuses this petition simpliciter, and decerns; and in respect that the other compearing parties merely intimate their willingness to concur in his application, and decline giving in any separate petition, or direct application, for themselves, finds that the instance having fallen by the refusal of the only petition before the Court, their mere concourse cannot now supply the want of any such instance, or of a principal pursuer, and that there are truly no termini habiles for granting or offering any such concourse: Finds the said Dr. Macdowall liable in expenses to the respondents, William Loudon and others; allows an account to be given in, and remits to the auditor to tax and report; but finds no expenses due by, or to any other parties. "Note. The Lord Ordinary has great doubt whether any creditor, on the most undoubted grounds of debt, has a title to make such an application; but a claimant on a prescribed account, of whom the law has said 'that he shall have no action,' except to establish his claim by the writ or oath of the debtor, is not legally entitled to the character of a creditor at all. The respondents are in peaceable and open possession, and are in cursu of making up legal titles; and having offered full caution to the petitioner extrajudicially, seem well entitled to the expenses of opposing this incompetent attempt to disturb them; at the same time, as they have been intromitting, without title, now for upwards of two years, the Lord Ordinary would not have hesitated in appointing a judicial factor, if any direct application had been made to this effect by any relative of the defunct, or even by the Crown as ultimus hæres, and is glad to learn that the respondents have agreed to find caution in Exchequer, to the satisfaction of the Queen's and Lord Treasurer's Remembrancer." The petitioner reclaimed. Craufurd, (Ivory with him), for petitioner-We ask the Court to protect from dilapidation an heritable estate in which we are interested. Loudon has been in possession for upwards of three years without any show of title at all. This is set forth in the inter locutor. We apply for a judicial factor. There is no legal recognized possession to meet us. The only party whose possession would be superseded by granting our application is a party without any title. The Crown, who claims as ultimus hæres, does not oppose the application. A personal creditor can apply for sequestration, and, therefore, a fortiori, an application of this kind is competent. It was held incompetent in the case of Broomhall's Creditors, M. 14,341; but its competency is established by the cases of James Hunter, M. 14,344; Bogle v. Cochrane, 10th July 1847; Keiling, 15th June 1839. See also More's Notes, lxxvii.; and 2 Shand, 981. Lord Fullerton.-But your first point is, whether you are a creditor at all, so as to be in a position to raise this question. Your debt is said to be prescribed.] This is a claim for medical attendance, and the party's representatives don't aver payment. Therefore the triennial prescription don't apply.-Leslie v. Mollison, 15th Nov. 1808; Elder v. Hamilton, 15th May 1833; Ritchie v. Little, 15th Jan. 1836; Fisher v. Ure, 5th March 1836; Ross v. Guthrie, 12th Nov. 1839; Auld v. Aikman, 7th July 1842. [Lord Justice-General.-You need not read decisions to show the determination of the Court to adhere to the rule laid down in Leslie v. Mollison.] Alcock v. Esson was not a case in which the debtor had died; it did not, therefore, fall within the rule of Leslie v. Mollison. Lord Mackenzie. This case does not fall within the rule of Leslie v. Mollison. It was there held, with much difficulty, that where some time elapsed between the close of the account and the death of the debtor, the whole period from the death was to be deducted in ascertaining whether the prescription applied. I reported the case, and I recollect I would have felt inclined to doubt the soundness of the decision, if I had been at liberty to do so.] Lord Jeffrey.-Is there not a late case in which we applied the principles of Alcock v. Esson?] There is the case of Darnley v. Kirkwood. Deas, for respondent-Whether or not the plea of prescription may be elided here, is a question. But, after Alcock v. Esson, it cannot be doubted that the statute has a prima facie application. That is sufficient against the present application. Besides, there is no case in which such a proceeding as this was adopted on the application of a personal creditor. Lord Justice-General.-It is very inexpedient to sequestrate this estate. The respondent is in the course of making up a title. Besides, there is sufficient security to answer this petitioner's claim. Lord Mackenzie.-I don't think that an apparent heir in possession can be turned out of possession by the appointment of a judicial factor, at the instance of a personal creditor to any 24th November 1849. FIRST DIVISION. No. 20.-J. and D. CONNAL, Suspenders, v. JOHN STALKER, Respondent. Bill of Exchange-Promissory-Note-Non-Onerosity-ProofWrit-Oath-The granter of a promissory-note suspended a charge upon it on the ground-1st, That it was granted without value for the charger's accommodation; 2d, That the charger was barred by his acceptance of a composition on all debts due by the suspender. The charger denied that the note had been granted for his accommodation, and admitted that he had signed the composition-contract, but only on condition of its acceptance by the suspender's other creditors, who had not acceded to it-Held that both grounds of suspension could be instructed only by the suspender's writ or oath. This was a suspension of a charge upon a promissory-note for £89: 12: 6, granted by the suspenders to the charger. The suspenders averred that the note had been granted for the charger's accommodation without value. They further averred, that they had offered a composition to their creditors, which Stalker had accepted, and that this debt was covered by the composition. They did not tender caution for the sum charged for, but offered security for the second and third instalments of the composition; the first instalment having been consigned. The charger denied that the note had been granted for his accommodation. He admitted that he had signed the composition-contract, but averred that he did so only on the understanding that the other creditors should accede, which they had not done. The Lord Ordinary pronounced the following interlocutor: "In respect, 1st, That it appears that all the creditors have not acceded to the composition-contract; 2d, That the complainers decline to prove the alleged non-onerosity by the oath of the charger; and, 3d, That no caution is offered for the debt; Refuses the note." The suspenders reclaimed. P. Fraser, for the reclaimer-A party, after accepting a composition, is not entitled to sue upon the old debt. If the acceptance was conditional, the condition must be proved. But no condition was adjected to Stalker's signature. We don't admit that the other creditors refused to accede. Kilpatrick v. Miller, 9th June 1825, is in point. We admit that we must prove non-onerosity by writ or oath. But the only question is, are we entitled to have the note passed on caution for the instalments of the composition. Lord Jeffrey.-Is not your case entirely rested on the point of non-onerosity? Look at your statements and pleas. You must prove non-onerosity in the Bill-Chamber before passing the note.] No doubt we must, if that were the only ground of suspension; and if we merely relied on the averment that this was an accommodation-note. But we found on the charger's own statement, to show that this is not a new debt, but an old one. Macfarlane, for the charger, was not called on. Lord Justice-General.-We have no doubt whatever. You must make out your grounds of suspension by the party's writ or oath. The Court adhered. Lord Ordinary, Robertson.-Act. P. Fraser; John Robertson, junior, S.S.C. Agent.-Alt. Macfarlane; Robert Deuchar, S.S.C. Agent.-L. Clerk.-F.H. 24th November 1849. FIRST DIVISION. No. 21.-DAVID MONRO, Petitioner. Entail Amendment Act (1848)-Montgomery Act-Meliorations- The Court refused to extend the benefit of the 16th section of the Entail Amendment Act to an heir of entail who had not executed improvements on the estate, but had reimbursed to certain third parties the money expended by them in executing improvements under an arrangement with a former heir. This was a petition by an heir of entail to enable him, in terms of the 16th section of the Entail Amendment Act, (11 and 12 Vict. c. 36), to grant bond of annualrent with reference to certain improvements executed upon the estate. The 13th section* enables an heir of entail to grant such a bond with leave of the Court, where the heir himself shall have executed such improvements before the passing of the statute, and shall have obtained decree therefor in terms of the Montgomery Act. The 16th section gives the same privilege to heirs who, either before or after the passing of the statute, have executed improvements of the nature of those contemplated by the Montgomery Act, but has failed to ob And be it enacted, "That where an heir of entail in possession of an entailed estate, holden by virtue of any tailzie dated prior to the said 1st day of August 1848, shall have executed improvements on such estate previous to the passing of this act, and shall have obtained decree for three-fourth parts of the sums expended thereon, in terms of the said recited act of the 10th year of the reign of his Majesty King George the Third, and shall also have obtained the authority of the Court of Session as after mentioned, it shall be lawful for such heir to execute, in favour of any party he may think fit, a bond of annualrent, in ordinary form, over such entailed estate, or any portion thereof, binding himself and his heirs of tailzie to make payment of an annualrent during the period of his own life, and twenty-five years thereafter, such annualrent during his own life not exceeding the legal interest of the said three-fourth parts of the sums expended as aforesaid; and, during the twenty-five years after his decease, not exceeding the sum of £7: 2s. for every £100 of such three-fourth parts as aforesaid, and so on in proportion for any greater or less sum; and such annualrent being payable by equal moieties half-yearly, at the terms of Whitsunday and Martinmas, beginning the first term's payment at the first term of Whitsunday or Martinmas after the date of the bond, for the proportion of annualrent then due, with legal interest, and penalties in case of failure." "That where an heir of entail in possession of any entailed estate, holden by virtue of any tailzie dated prior to the said 1st day of August 1848, shall, whether prior or subsequent to the passing of this act, have executed improvements on such estate of the nature of the improvements contemplated by the said last recited act," (10 Geo. III.), "but shall not have obtained decree therefor in terms of the said act, by reason of the provisions thereof not having been adopted, or not having been duly complied with, it shall be lawful for such heir to apply by summary petition to the Court in manner hereinafter provided, setting forth such improvements, and the amount of money, not exceeding the amount authorized by the said act, expended thereon, and praying the Court for authority to grant bond of annualrent, as is hereinbefore provided in the case of improvements for which decree in terms of the said act has been obtained; and the Court shall, after such proceedings as they may think fit to direct or to adopt, proceed to consider such application, and to take such evidence, and institute such inquiry into the facts alleged in such petition, as they shall judge necessary; and if it shall appear to the Court that such improvements are of the nature contemplated by the said act, and that such expenditure was bona fide made, they shall find accordingly, and shall also grant warrant for execution of a bond of annualrent, as herein provided in the cases of improvements for which decree in terms of the said act has been obtained." tain decree in consequence of non-compliance with the provisions of that act. The petitioner did not execute the repairs mentioned in the petition. He had merely reimbursed the sums expended in making them by certain third parties(a tenant and his assignee)-under an arrangement with a previous heir. The improvements in question were of the nature of those contemplated by the Montgomery Act. The petitioner contended that, although his case did not fall within the words of the 16th section, still, upon an equitable construction of it, he was entitled to the privilege thereby conferred-the money having been truly expended by him with reference to the improvements in question. After a remit to investigate the circumstances, Lord Justice-General.-We cannot extend the application of a statute like this to a case not falling within it. The application must be refused. Petition refused. James Cooper, tenant in Hillbrae of Bourtie, Aberdeenshire, raised a summons against the North of Scotland Banking Company, and James Westland their manager, as also against Alexander Davidson and Son, and Alexander Davidson and James Davidson, the individual partner of that firm, agents for the said bank at Inverury, stating "That the pursuer, who is a farmer and cattle-dealer, has frequent money transactions, to a considerable extent, with the North of Scotland Banking Company: That the pursuer, accordingly, has a bank account opened with the agent of the North of Scotland Banking Company at Inverury: That the pursuer's pass-book being in arrear during the spring to the year 1848, it was left for several weeks with the defenders Alexander Davidson and Son, or one or other of the individual partners of said firm, or with their authorized clerk, for the purpose of having the requisite entries filled up as usual; it so remained in Alexander Davidson and Son's possession from about the 7th of March to the 12th of May 1848: That during this time, and upon one or other of the days between the 7th March and the 12th May foresaid, the pursuer sent, by the hands of his servant George Greig, a sum of £280 sterling, to be paid in and put to the credit of his account at Inverury, and said sum was accordingly so paid by George Greig to Alexander Williamson, residing in Inverury, clerk to the said Alexander Davidson and Son, defenders, authorized by them, and acting on their behalf: That upon getting back his bank-book, and seeing the state of his account, the pursuer stated that there must be some mistake, as the balance in his favour should have been greater; and, upon examination, he discovered that the foresaid sum of £280 had been altogether omitted to be placed to his credit: And although the pursuer has frequently desired and required the defenders to make payment to him of the foresaid sum of £280, with the interest which may be due thereon, or at least to place |