ordinary partnership, any right to transfer their shares at common law. Their right to do so is conferred by the statute alone; but it attaches a condition to the right thus conferred, which is, that all calls due upon the shares proposed to be transferred shall have been paid. In this case, calls had been made, but they remained unpaid down to the date of the transfer complained of.

Lord Advocate for respondents-The complainers have no title: They are merely creditors. There is no case in which the interest of a creditor to institute a challenge of this sort has been sustained. This is an act of ordinary management on the part of the directors. It is quite unheard of that a mere creditor should be entitled to control them in the exercise of their discretion in this respect. But they misconstrue the legislative enactments on which they rely. These enactments were for the protection of individual shareholders, or of the company. It was to enable them to say to a defaulter, You shall not sell your shares until your calls are paid. This is a right which a creditor cannot found upon. Besides, these complainers cannot prevent the directors from declaring a forfeiture. Farther, the complainers are in this dilemma: Either the transfer is illegal, or it is not. If it be legal, then the complainers have no case. If it be illegal, then the complainers have no interest; because they will in that case be entitled to sue these parties just as if the transfer had not been made.

Marshall in reply—We have a very clear interest as creditors to prevent insolvent persons from being substituted to solvent persons as our debtors. It won't do to say, that if the transfer be illegal we have no interest. We have the interest to avoid the necessity of instituting a reduction to set aside the transaction. We have this farther interest, that, being entitled only to sue those parties whose names stand on the register, we must prevent the names of those solvent persons from being taken out of the register, and the names of insolvent parties substituted on the register in their stead.

Lord Justice-Clerk.—I am clear that there are no grounds for an interdict to the extent prayed for. But I am not much disposed to hold this on the grounds adopted by the Lord Ordinary. If I was, I should be inclined, in the first place, to pass the note to try those questions. I incline to go on the practical ground, that these complainers have not averred any distinct injury which can entitle them to get this note passed. I do not think the construction of the statute contended for by the respondents to be by any means so clear as the Lord Advocate seemed to think. But the complainers have not shown sufficiently how what is to be done will be to their prejudice. They have not averred any special cases of insolvent parties to be substituted to solvent parties on the register. A party applying to the Court for an interdict of this sort is bound to show distinctly how that which is proposed to be done is intended to operate against the interest of the complainers. It is not said that this transfer is part of a plan by which the respondents are to shake themselves. loose from their contract with the complainers. It is not said that the capital now in the respondents' hands is insufficient to meet the complainers' demand. Whether any case of this sort is to be made hereafter-that the respondents are fraudulently seeking to get rid of their contract-we need not anticipate. Besides, these complainers have other remedies, such as that of arrestment. It is an additional ground for our not interfering, that these calls have not been attached by arrestment. I do not agree with all the grounds taken up by the Lord Ordinary, by any means. If I inclined to go on those grounds-such as the construction of the clauses of the statute-I would pass the note to try them. What I desiderate in this note of suspension

and interdict is, a proper statement of facts showing an intentia of injuring these complainers. There are nothing but som vague statements about letting off some solvent shareholders; but whether enough won't remain to satisfy the complainer claim even if these calls should remain unpaid, is not made matter of averment.

Lord Cockburn.-I have come to the same result, and up the same grounds. I abstain from expressing any opinion) the question of title, or the question as to the true constructi of the statutes. There is nothing here complained of suffic to justify us in passing this note. The complainers merely | lieve, and they state very vague grounds for doing so, that the directors intend to prostitute their character as members of company, and their character as its directors, by letting off tain solvent shareholders, and putting a set of bankrupts in the place, and this as part of a project which may be called criminal the project of liberating themselves altogether from this tra action. This may be true, but I cannot believe it on such vane grounds as are here alleged; at any rate, I cannot so beli as to make it a ground for passing this note of suspensie Lord Murray.*-I agree with both your Lordships. It had been any pregnant allegation of fraud, I would be for p ing the note. But there is no such allegation as could ju us in following that course.

No. 96.-WILLIAM HAY, Appellant, v. JOHN DURHA Respondent.

Bankrupt-Sequestration-Process--Competition for Trude - In a competition for the trusteeship in a sequestration, where sheriff has not given any judgment on the objections, it is compac for a party, in an appeal to the Court, to object to the rates o favour of his competitor, and to redargue objections to votes it lo own favour, without having taken an appeal. Bankrupt-Affidavit-Sequestration Statute 1 and 2 Fict c 41, §§ 3, 33-Security-A, the obligant under a caden which B and C were his co-obligants, and on which inhibitusa hud been used against A, having become bankrupt, B paid the delta obtained an assignation of it, and of the inhibition. Thereafter, having paid B his share of the liability, and got a receipt from bi claimed to vote on A's sequestration, but in his affidavit he ja to value the security of the inhibition-Held that the vote was a competent.

Bankrupt-Affidavit-Sequestration-Voucher-It was olijpen to the vote of a creditor in a sequestration, who claimed on a bas ness-account, that it did not credit certain sums paid to accoust the bankrupt, for which receipts were in existence, and that, co sequently, the account produced did not exhibit the true bulm between the parties. Terms of an affidavit which-Held to pro entirely on the account produced, and objection thereto repeliai. See ante, vol. xxi. p. 583.

The appellant and respondent were competitors f the office of trustee on the sequestrated estate of Jam Campbell, merchant in Dundee. The result of the d cision on Hay's appeal, reported as above, having be to give him the preference, Durham was proceeding state objections to the votes given for Hay, when it objected that he had taken no counter appeal.

Thereupon the Court pronounced as follows:"Before answer as to the motion made by Mr. Durhan counsel, to state objections to the vote given in favour of M Hay, appoint Mr. Durham's counsel to give in a minute as

* His Lordship had been called in to form a quorum in c sequence of the absence of Lords Medwyn and Moncreiff.

he practice of stating such objections where the party wishing state them has taken no appeal in terms of the statute." Durham lodged the following minute :"MONCREIFF, for Mr. Durham, stated, that all due inquiry ad been made as to the practice in stating objections where e party wishing to state them had taken no appeal in terms the statute, but it did not appear that any regulating pracee existed in cases where the Sheriff had not decided upon jections tendered against the votes of creditors."

The appellant lodged the following note of authorities n the point :

Counter appeals were presented in the cases subjoined, with face to the disposal of objections to the votes of creditors the competition in the note appended or prefixed by the rid to the declaration of the election of a trustee :-Andera. Thomson, 9th July 1847; 19 Jurist, 638. Dyce v. Pater19th Dec. 1846; 9 D. 311. Couper v. Leslie, 10th March 47; 19 Jurist, 415. Woodside v. Esplin, 15th July 1847; 19 trist, 657. Macfarlane and Wright v. M'Laren and others, th Jan. 1848; 10 D. 551. Watson v. Cowan, 22d Feb. 1848; Jurist, 258. Smith v. Borthwick, 6th Feb. 1849; 11 DunA517. Forrest v. Borthwick, 23d Dec. 1848; 11 Dunlop, 308. nuear v. Low, 22d June 1849; 21 Jurist, 468. No case has en found by the appellant in which the merits of objections posed of in the Sheriff's note were entered into at the inance of the respondent without a counter appeal."

The Court having taken the opinion of the other Divion on the question, held the proceeding competent. The bankrupt had a cash-credit with the Eastern ank of Scotland, in which Scott, Duncan and Hunter, ere co-obligants, and on which, in January 1848, the ank raised inhibition. By operations on the cashredit, the bankrupt became indebted to the bank in the am of £521: 8:4, including the expense of the inhition. This debt was paid by the representatives of cott, in whose favour an assignation of the cash-credit bond and inhibition was granted by the bank on 29th January 1849. The sequestration took place on 7th February thereafter; and, on 14th February following, Junter and Duncan paid Scott's trustees their shares the debt, expense of the assignation, and interest, mounting to £176: 8:11 each, for which sum they ak receipts from Scott's trustees. Each of the cobligants then claimed on that sum, Duncan voting for Jurham, and Hunter for Hay. Duncan deponed"That the said James Campbell was, at the date of the seestration of his estates, and now is, liable and bound to reeve and pay the deponent the sum for which he was bound, od has been obliged to pay as his share of said bond, and he is stly indebted and resting-owing to the deponent the said sum £173:16:14, and £2:5: 9, amounting together to £176: 18. Depones, That no part of the said debt has been paid or pensated to the deponent, and that he holds no other person an the said James Campbell bound therefor, and no security or the same. All which is truth," &c.

To this vote Hay objected, inter alia

"The inhibition forms a security for Mr. Durham under the and, and he has claim and right to what preference and adFantage may arise from said inhibition. The inhibition is specilly assigned in the assignation produced and founded on by the laimant, and the statute reserves the effect of all inhibitions o the creditors. In the affidavit, he was bound by the statute, §§ and 33, to specify this diligence and security, and also to put specific value on the preference to be received therefor, and pecify the balance; and he cannot vote nor act in the sequestion until this be done. The other parties in the cash bond ave specified the preference, and deducted."

The Sheriff-substitute pronounced no decision on this oint, there having been, under his judgment, votes nough, without Duncan's, to carry the election in avour of Durham.

David Scott, for Scott's trustees, deponed, that he "and the said other trustees hold no other obligant for the said debt than the said James Campbell, and no other security than the foresaid bond and assignation thereof, and the said letters of inhihition. Further, in compliance with the 33d section of the act 2 and 3 Vict. c. 41, the deponent hereby values the security of the foresaid letters of inhibition at the sum of £3: 16: 1, which being deducted from the foresaid sum of £173:16: 1, leaves a balance of £170, for which the deponent, for himself and the said other trustees, claims a right to vote in the sequestration of the said James Campbell."

Hunter also valued the inhibition at £1.

Moncreiff, for Durham, pleaded-The only objection is, that a nominal value is not put on the inhibition, for real value it has none. The statute, however, though it requires the party to value securities held by himself, does not apply to the case of securities held by another, through whom the claimant may acquire right. The inhibition never was in our hands; we have no assignation to it merely a receipt from Scott's trustees; and it is by them that the security, in the sense of the statute, is held.

Patton, for Hay-The rule is, that every security must be valued, however small the value put on it. The co-obligants have an undoubted right to, and can use, the inhibition. Scott's trustees and Hunter each only paid one-third of the debt, and both have valued the security.

Lord Fullerton.-I do not understand Mr. Moncreiff to dispute the general doctrine.

Moncreiff-We admit the general doctrine; but this security is not held by the claimant in the sense of the statute. It is held by another party, to whom the claimant was liable, and through whom he may make good his right under it.

Lord Justice-General.-I am afraid we must hold this a valid objection. I cannot get over the statute; the security may be worth little, or much—but still it must be valued.

Lord Mackenzie.-I am afraid we must hold it worth something.

The Court sustained the objection.

Moncreiff then objected to the vote of Hunter, who claimed to vote on

"the sum of £269:15:11 sterling, being the amount of an account for business performed by the deponent, to and for the said James Campbell, and disbursements made on his account and employment, conform to an account thereof, commencing on the 26th day of May 1841, and ending on the 8th day of November 1848, and which account is produced herewith."

Moncreiff-Though Hunter has produced one account, he has not produced the whole accounts between himself and the bankrupt. There are in existence two receipts, which are not mentioned in the account produced. That account, therefore, cannot show the balance as between agent and client, and is no voucher of the debt.*

The receipts referred to were two receipts from Hunter to the bankrupt, dated 1842 and 1843, for the sums of £22 and £12 respectively, which were stated to be placed to the bankrupt's credit in his account with Hunter.

Patton-The affidavit proceeds on a certain businessaccount, which we have produced, as well as vouchers for the disbursements therein noted. These receipts are not stamped, and the account under which they fall is undoubtedly not a business-account.

*This objection was not decided on by the Sheriff; Hunter's claim having been rejected on another ground, which decision was reversed as above reported.

events by the book-keeper of said company, acting under hi the charger's immediate and express directions: Finds tha the said entries are to be regarded, and must receive effect in the present question, as the proper writ of the charger: Finde accordingly, that it is now established thereby that the charge did not pay the sums mentioned in the assignation granted i his favour by Kyle with his own money; but that the same were advanced and paid out of the funds of the company, where Cochran himself is the principal partner; and, moreover, the this was done, not for behoof of the charger, or for any particula interest of his, or to enable him to purchase the assignation which he now founds for any purpose or interest of his own but on the special and exclusive credit of Cochran, who becam thereby in his own person indebted to the company, and wh private account with the company was, accordingly, debis with the same in the company's books: Therefore, and in s spect that it is nowhere set forth in the record that the charg received the assignation, or in any respect acted throughout the transaction, or has given the present charge in the character of trustee for the company-his allegation, on the contrary, having been all along, and in the most absolute and positive t that the money was advanced and paid by him nomine p and out of his own proper means-finds that the charger not a bona fide and onerous assignee to the debt charged o was not, as such or otherwise, in titulo to execute summay diligence in his own name against the suspender; while Cochran whom the charger's company have taken as their sole deb in the matter, has discharged all claim whatever against t suspender: In these circumstances, sustains the reasons of pension so far as founded on the above species facti, suspe the letters simpliciter, and decerns: Finds expenses due; b in respect of the suspender's having failed in a former bran of the cause, subject to modification; appoints an account, The charger reclaimed.

Lord Advocate for reclaimer-There are two points 1st, Is Martin an onerous holder of the decree, or does he merely hold it in trust for Cochran; 2d, What i the effect of this charge. As to the first point, no onerosity can only be proved by the party's writ o oath. Here, it is endeavoured to be proved by the party's writ. We admit that these books are taken as his writ, so that the question arises as to the import of the entries. There was another company called Cochran and Company. Knox was a partner of that company. It had nothing to do with the subsequent company of Cochran and Martin. An ac tion was raised against Cochran and Company upo this debt, in which decree was obtained by the credito Diligence was raised upon the decree against Cochra Cochran then comes to Martin, with whom he had en tered into copartnership, and obtains his consent to tak the debt out of the hands of Kyle by paying for s assignation out of the copartnery funds. It was M tin's money as well as Cochran's which went to p Kyle. Therefore, Martin takes, and was entitled take, an assignation in his own name. With regard the second part of the interlocutor, it is an error assume that any discharge of the claim against Kn was ever granted.

Lord Justice-General.-We cannot adhere to the final par graph of the last finding of the Lord Ordinary. But as to other finding, on the question, whether or not Martin be onerous holder of this decree, I think the Lord Ordinary ri I can't lose sight of this party's allegation on the record. the assignment by Kyle, he says that he advanced his own m -not constructively, but in point of fact. Now, that it was so is proved by these books-which being kept under his e must be taken as his writ. Nothing can be more clearly prov under these entries, than that he holds this decree in trust Cochran. I am for adhering on this point.

Lord Mackenzie.-I am of the same opinion. The interlocu

get to stand after the last finding is taken out. The assigion was made for Cochran's money; and Cochran paid it. Lard Fullerton.-I am of the same opinion.

The Court pronounced the following interlocutor:"Adhere, except in regard to the final paragraph of the last ding therein, which is not necessary for the decision of the

use.

Lord Ordinary, Ivory.-Act. Lord Advocate (Rutherfurd), rson; John Cullen, W.S. Agent.-Alt. Inglis, Macfarlane; Larles Fisher, S.S.C. Agent.-L. Clerk.-(F.H.)

13th February 1850.

FIRST DIVISION.

No. 98.-THOMAS KYLE, Pursuer, v. ROBERT

STEVENSON, Defender.

escription, Triennial-Proof-Resting-Owing-Writ-Contruction--A creditor, against whom the triennial prescription was peated, undertook to prove the debt by the defender's writ, and ced three letters-the first of which was written in reference the employment in question during the currency of the account for, and the other two, dated after the expiry of the statutory d of three years, acknowledged that the account was still Pattled-Held that the statute applied, but that the letters, together with parole proof as to the quantum and reasonableness of de charges, were sufficient to instruct the pursuer's claim.

This was an action to recover payment of an account £11:4:3, being charges for taking levels, drawing tions and plans, &c., with reference to an embanknt made for the defender by a party named Collins. first item of the account was dated in April 1842, the last was incurred in September 1843. The defender pleaded the triennial prescription. The pursuer produced, in support of his claim, the e following letters, written by the defender. The st and third were addressed to the pursuer himself, the second to a third party, who had written to Tenson in Kyle's behalf.

"Park, 24th August 1842. DEAR SIR-I have as yet made nothing of Collins, the conetor for the embankment on the sea-greens on this farm, as ted out to you when here, and in fact the embankment just as when you saw it; and as I want to lay the whole busibefore my landlord, I would like you to make a sketch with ons of the work done, in order that it may be compared with ne originally made by Mr. Horne. Will you therefore have goodness to do this; at sametime make a short report as to amount which should be paid the contractor for what he has and how much more it would take to make the embankcomplete, that is, how much per cubic yard it would take on the additions according to the following dimensions-The east and south emb, all along, 4 feet broad on top, ing 2 feet to 1 outside and 14 feet to inside; the south emb, #thigh, and of course the east emb on level with; and the east emb along the inside of the railway, (termed a mere ry), was to be 376 yards long, 4 cubic yards in the runng yard, taking the average thereof. This, I trust, you will attention to, and forward to me at your earliest possible venience, as I expect his Lordship in a day or two at most. you are at any time in this quarter, I shall be glad if you d spend a few hours at Park. Your account will be paid estion to after this transaction. I am," &c. "RO. STEVENSON."

"Park, 19th August 1846. "DEAR SIR-I was duly favoured with yours of the 12th, and er due consideration, I do not feel inclined to give Mr. Kyle my farther trouble in the matter, and will therefore call first eam in Glasgow, and pay the account myself. I am," &c.

"RO. STEVENSON." "Park, 9th July 1847. "DEAR SIR-I should have answered your favour sooner in ard to your account, but permit me to say that I will attend it in the course of a few weeks at most. I think I am due

Mr. Steele also, which will have my first attention also. I hope you will not put yourself to any trouble about it. I am," &c. "RO. STEVENSON."

The Sheriff-substitute (Clark) pronounced the following interlocutor, to which the Sheriff adhered on appeal :

"Finds that the defender's holograph letter, produced in process by the pursuer, are sufficient to elide the plea of prescription proponed by the defender; and before further answer, allows the parties a proof of the other averments respectively made by them in the record."

After considering the parole proof adduced, the Sheriff-substitute pronounced the following interlocutor:

"Finds that the parole proof adduced by the pursuer, and the documents founded on by him, establish the justice of his claim; and, therefore, decerns against the defender in terms of the conclusions of the libel."

In an advocation at the defender's instance, after certain procedure (reported supra, vol. xxi. p. 416), the Lord Ordinary pronounced the following interlocutor:

"20th July 1849.-Having heard counsel for the parties, and considered the closed record, writings produced, proof, and whole process, finds, in terms of the statute 1579, c. 83, that the debt libelled not having been pursued for within three years, the pursuer can have nae action except he either prove be writ or be aith of his partie:' But finds, that in the whole substance of the grounds of action-that is to say, in all that regards the original employment of the pursuer by the defender-the constitution of liability and debt under said employment, and the continued subsistence of said debt, and its remaining still restingowing and unpaid at a date considerably posterior to the lapse of the three years-there has been adduced sufficient writ of the defender to satisfy the statutory requirements; and that, in this way, nothing remains but to support the quantum and reasonableness of the charges made in the account, which it was competent to do, and which has been satisfactorily done, by the supplementary parole proof to that effect led by the pursuer : Therefore, on the whole matter, and especially in respect of the authority of Smith v. Falconer, 17th February 1831, repels the reasons of advocation; remits the cause simpliciter to the Sheriff; finds the pursuer entitled to his expenses in this Court; and appoints an account," &c.

66

Note.-The Lord Ordinary is satisfied that the judgment now pronounced is the only one calculated to meet the honesty of the case, and has no idea that it trenches in any just sense upon the principles laid down by the Court in Alcock, 20th December 1842, in the general soundness of which decision he entirely concurs.

"The specialty here is, that the essential elements of the debt pursued for, both as regards its constitution and subsistence, are established scripto. Had the matter been referred to the defender's oath, and he had sworn-1. to his employment of the suspender at and prior to the 24th August 1842; 2. to the nature and character of that employment; 3. to his acknowledgment of the debt thereby constituted, as well as of its being still a subsisting debt, not only on the 19th August 1846, but again on 9th July 1847, both of these dates occurring after expiration of the statutory period of prescription; and, 4. to his promises to pay, as at both of these dates, without any proof or allegation that he had even so paid. There seems no room to doubt that such an oath must have been held conclusive of the case, as being specifically an affirmative answer to the substance of the reference. But the defender's three letters, of 24th August 1842, 19th August 1846, and 9th July 1847, all concur to precisely the same effect; nothing remains, therefore, but the quantum of charge. And so far the law has never denied the power of proving by extrinsic evidence.

"The judgment of Smith v. Falconer, 17th July 1831, is, in this view, precisely in point. And the dicta of some at least of the Judges in the recent case of Anderson, 11th June 1847, shows, even in a much less favourable question than the present, that an application of the principle of Alcock's case, so excessively rigorous as that for which the defender here contends, is not one likely to receive countenance."

The defender reclaimed. At advising,

Lord Probationer Dundrennan.—I think the interlocutor ought

to be adhered to. The statute clearly applies, and the Lord Ordinary has given this party the full benefit of it. But the employment is clearly proved by these letters, which are his writ. The case is even stronger than that of Falconer. I think the interlocutor well-founded.

Lord Justice-General.-I am for adhering. It is said that the Sheriffs committed an error in not finding, in the first place, that the statute applied. That error has been set right by the Lord Ordinary. There is a distinct acknowledgment here, posterior to the period of prescription, to the effect that this was an unsettled claim. This interlocutor is therefore right, and ought to be adhered to.

Lord Mackenzie.-This expression of eliding was not invented by the Sheriff. It was known long ago, and it did no harm, since everybody understood its meaning. I never heard of an erroneous judgment being given in consequence of it. The Lord Justice-Clerk has, however, corrected this matter-though I don't think the word made any difference as to the substance of the thing. I think the Lord Ordinary's interlocutor correct, and that the cases cited by him are a fortiori. In the case of Falconer, the evidence was very scanty--still the Court thought there was enough. I think we have a stronger case to deal with here; and I am therefore for adhering.

Lord Fullerton.-I am of the same opinion.

The Court adhered.

Lord Ordinary, Ivory.-Act. Cowan; John Morrison, S.S.C. Agent.—Alt. Craufurd; M. Lawson, S.S.C. Agent.-W. Clerk.— (F.H.)

13th February 1850.

FIRST DIVISION.

No. 99. JAMES EMSLIE, Pursuer, v. F. G. FRASER, Defender.

Fee and Liferent-Fiduciary Fiar- Succession-Representation-Process-Wakening and Transference-The proprietor of an estate disponed it to himself in liferent, and, after his death, to his son A, "but for his liferent use only, and to the heirs whatsomever of his body in fee." A was infeft"in liferent, but for his liferent use only," without mention of the heirs of his body. He raised, in the character of heritable proprietor infeft in the lands, an action of declarator for settling the marches between the estate possessed by him under the foregoing destination, and that of a neighbouring proprietor, and died while the oction was in dependence. Held that his son B, whose title was made up as heir of provision to his grandfather, did not represent his father in this action; and that it could not, therefore, be wakened and transferred against him.

In 1808, the defender's grandfather executed a conveyance of the lands of Findrack

"to and in favour of himself in liferent, and, after his death, to Francis Fraser, younger, his eldest son, in liferent, but for his liferent use only, and to the heirs whatsomever of his body in fee."

Francis Fraser was infeft on the disposition after his father's death. The infeftment was "in liferent, but for his liferent use only," without mention of the heirs of his body.

The lands of Findrack lay to the eastward of the conterminous lands of Tullochvenus, belonging to the pursuer. A question arose between the proprietors of these two estates, whether the boundary line between them ran along the summit of a hill called the hill of Tulloch, or whether the true boundary was a road lying to the eastward of that hill, and including it within the estate of Tullochvenus.

In 1822, Samuel Emslie, the pursuer's father, raised an action of interdict and damages against Francis Fraser before the Sheriff of Aberdeenshire, on the ground of certain alleged trespasses by the latter and his tenants across the line of march. A proof was led, on considering which the Sheriff allowed Emslie to give in a state of the damage claimed by him.

While this order was current, Fraser, as heritabl proprietor infeft in the estate, raised, in 1822, a sum mons of declarator of marches in the Court of Session This was followed by an advocation ob contingential of the Sheriff-Court process. The case was remitte for jury trial. The last order in it was made on 170 January 1825. It was in these terms:

"It is ordered that, in respect of the death of the pursuer, s process in this case be re-transmitted to the Court of Session.

Many years after his father's death, F. G. Fraser (th present defender) raised an action of declarator damages against James Emslie, the son of Samue Emslie pleaded lis alibi pendens, in respect of the fo mer declarator at the instance of Francis Fraser. Th Court (vide supra, vol. xvii. p. 143) sisted process un he should bring a wakening and transference of the pro cess on which his defence of lis pendens was founded

The present was the action brought in consequenc of that order. The summons stated

"That to follow out the said process, and bring the sam a conclusion, it is necessary that the pursuer have the s wakened, and also transferred, so far at least as regards the ma ters of heritable right, title, and interest, and of servitude a marches involved therein. against the said Francis Garde Fraser, Esquire, now of Findrack, as heritable proprietor, now in possession as such, of the said lands of Wester Tolm and others, before described, or in such other character, and such other grounds, as it shall appear to our said Lords that d cree of transference ought to be pronounced, to the effect, either case, that the said James Emslie, as heir of the said d ceased Samuel Emslie, his father, and as heritable proprietor the lands of Tullochvenus, and others foresaid, may obtain cree of absolvitor from the said action, in whole or in part, the case may be, or such other judgment as our said Lords sha think just, and may have such action and execution, so far as t gards the matters of heritable right, title, and interest, and servitude and marches involved therein, against the said Franc Garden Fraser, if he appears and defends the same, as he wou have had against the said deceased Francis Fraser in his lifetime or as he might have against him were be yet in life; or otherwise to the effect that the said James Emslie may have the said ac tion proceeded with, in such manner, and to such extent as to our said Lords shall seem meet, and justice administered in the premises as to their Lordships shall seem proper."

The defender pleaded-As the defender does represent the late Francis Fraser on any title known law, and, at any rate, as no such representation been libelled, the action, so far as directed against hi or in so far as it is intended to affect him or his iat rests, is untenable, and he ought to be assoilzied wi

expenses.

The Lord Ordinary pronounced the following inte locutor:

"Finds that the late Francis Fraser of Findrack, the defa der's father, was infeft in the lands of Wester Tolmads = others, and that he instituted an action against the deceas Samuel Emslie of Tullochvenus, the predecessor of the prese pursuer, the object of the said action being to adjust and settle marches betwixt the properties of the two parties named, whi properties adjoin to one another: Finds that, from the st of the titles, the said Francis Fraser, the pursuer of the origi action, as heritable proprietor of the said lands, being a lifere and fiduciary fiar, infeft and in actual possession, had a go and sufficient title to insist in an action of declarator for adju ment of marches; and that no objection was taken to his to pursue: Finds, that the said action being of the nature of real action, in which judgment fixing the boundaries would ha been binding against the proprietors of the estates mutually, be competently transferred against the defender, F. G. Fra the present proprietor, and eldest son of the pursuer of the o ginal action; and that he is not entitled, merely by serving bi