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14th November 1849.
First Division. No. 2.-ROBERT GEEKIE, Senior, and ROBERT GEEKIE,
Junior, Pursuers, v. THE TRUSTEES OF WILLIAM HUT
CHISON, Defenders. Jury Trial-Witness-Proof-Under a commission to examine a witness for the defender, questions in initialibus were put by the pursuer to disqualify the witness on the ground of malice and partial counsel. At the trial, the defender objected to the initial deposition being read in the hearing of the jury. The judge directed it to be read aloud by the clerk of Court, telling the jury that the deposition in initialibus was not matter for their consideration, but for that of Court. Exception to this ruling disallowed.
This was a suit between conterminous proprietors as to the ownership of certain interjected stripes of ground.
Wannan, a witness for the defenders, was examined on commission, in consequence of ill health. He died before the trial.
The pursuers had examined him in initialibus, with the view of disqualifying him on the ground of malice and partial counsel. The object of this examination admittedly failed.
At the trial, the defenders' counsel objected to the initial deposition of Wannan being read by the clerk in the hearing of the jury. The presiding judge directed the clerk to read it aloud, but told the jury that this part of the deposition was not matter for them, but for the Court alone.
The defenders excepted to this ruling. The bill of exceptions bore, that the initial deposition was, at the pursuers' request, read before the deposition in causa.
Dean of Faculty (Robertson and Patton with him) in support of the bill of exceptions—The initial examination goes to the admissibility, and not to the credit, of the witness. No objection here was made to admissi. bility, because the deposition in causa was read first. Therefore, the pursuers were not entitled to read the initial deposition at all.
Anderson (Cowan with him) in reply.
Lord Mackenzie.—'This is a very small point. I can't go beyond the statement of the bill as to the facts.
Lord Jeffrey. We are bound to take this case as it stands on the bill of exceptions, and that the proposal to read the exami. nation in initialibus was made before the deposition was opened. I have not the least doubt that it was reasonable, fair and regular, to do so. Where evidence is led in the shape of a deposition, or when a witness is proposed to be examined in initialibus, are the jury to be removed till this prejudicial matter is disposed of? The judge, at the trial, was therefore right in having the examination read to the Court, because it was according to invariable practice to have it, as well as all other evidence taken coram publico.
Lord Justice-General.-I agree that we must confine ourselves to the bill.
Dean.-I don't ask the Court to go beyond the bill.
Lord Justice General.-I agree with the rest of the Court. In The Medical Insurance Company v. Rose, a witness was examined in initialibus. The examination failed. I took it down in my notes, and it was read to the jury.
Lord Mackenzie.--If the evidence is to be read at all, I can see no harm in reading it in presence of the jury, especially if they were told it was matter for the judge.
Exception disallowed, Presiding Judge, Lord Murray,--Act. Anderson, Cowan; J.S. Ducat, W.S. Agent.-- Alt. Dean of Faculty (M'Neill), Robertson, Patton; Graham and Webster, W.s. Agents.--Jury Clerk. |F..
16th November 1849.
SECOND Division. No. 3.—AGNES WALKER or FERGUSON, and others,
Petitioners. Curator Bonis- Process - The Court refused to appoint, as
curator bonis to an imbecile woman, the brother-in-law in whose house she resided; but remitted to the Sheriff-substitute to suggest a proper person.
This was a petition at the instance of Agnes Walker or Ferguson, her husband Samuel Ferguson for his interest, and three other unmarried sisters of Ann Walker, together her nearest relatives in this country, for the appointment of a curator bonis to her. The petitioners stated— “That Ann Walker, who has for several years resided with the petitioners, Agnes Walker or Ferguson and husband, is sistergerman of the female petitioners: That the said Ann Walker is an aged single woman of weak mind, and is quite incapable of managing her affairs: That she is entitled to some personal property through the decease of the Reverend William Walker, her only brother, and is also a pro indiviso proprietor, along with her sister, the petitioner Agnes Walker, of a small heritable subject.” And they suggested the petitioner, Samuel Ferguson, for the office of curator bonis.
The petition having been intimated, and no answer lodged,
Lord Justice-Clerk.— I do not think we can appoint the party suggested. He is the brother-in-law of this imbecile woman, and the person in whose house she lives. If we appoint him her curator, we have no security that she is properly taken care of. For all that appears here, this woman should be in an asylum. The Court remitted to the Sheriff-substitute to name a
proper person as curator bonis. Act. Shand.—John Gardiner, S.S.C. Agent. — T. Clerk. — (W.G.T.
16th November 1849.
Second Division. No. 4.- Mrs. MARY SIM or ALEXANDER, Pursuer, v.
WILLIAJ ALEXANDER, Defender. Husband and Wife Separation a Mensa et Toro - Aliment
Process-A wife raised a summons of separation and aliment against her husband on the ground of maltreatment, in consequence of which she alleged that she had been obliged to leave his house. · The husband denied all the charges of maltreatment. Before closing the record, the Lord Ordinary decerned ad interim, in favour of the pursuer, for bygone aliment, and a farther sum for expenses. The defender having reclaimed, on the ground that a finding of aliment was incompetent at this stage, the Court remitted to the Lord Ordinary lo repone him against the interlocuror, on such conditions as might appear proper, as to the expenses or otherwise, with full power to his Lordship to entertain and dispose of any application for ali. ment or expenses which might be made at a fulure stage of the cause.
The pursuer raised a summons of separation and aliment against her husband, on the ground of maltreatment, in consequence of which she alleged she had been obliged, three years before the date of the summons, to leave his house, along with their two daughters, and had since lived separate from him. The summons concluded that he should be decerned “to make payment to the pursuer of the sum of £300 sterling, or such other sum as shall be found reasonable, for the support and aliment of the pursuer and her said daughters since they left the defender's house, as aforesaid ; and also of the sum of £100 sterling yearly in future, or such other sum as shall be found reasonable, for the support and aliment of her and her said children.”
The defender, who was a teacher of writing and music, lodged defences, in which he denied in toto the charge of maltreatment; and whilst he admitted that the pursuer and his two daughters, both of whom had now attained the age of womanhood, had left him at the time libelled, he stated that long prior thereto the pursuer, who had a most ungovernable temper, began to make his life miserable by her insulting and outrageous behaviour towards him; that there were no good or sufficient grounds for her so separating herself from him; that he was willing to exert himself for her and his daughters' support in family with himself; and their leaving him was their own voluntary act. Further, he stated that the claim for aliment was preposterously large. His present income did not exceed £25 per annum, while the pursuer and his daughters had been, as they were now, supporting themselves in a separate business of their own, from which they obtained a comfortable livelihood.
The Lord Ordinary pronounced the following interlocutors:
“ 20th July 1849.-Having heard the counsel for the pursuer, finds her entitled to interim aliment for the last bygone three years prior to this date, at the rate of £100 per annum, being together the aggregate sum of £300 of interim aliment; for which sum, and also a farther sum of £50 towards expenses of process, incurred and to be incurred, decerns against the defender for payment to the pursuer; and, if not paid within three weeks, allows an interim decreet thereafter to go out and be extracted ad interim. Quoad ultra, as to the conclusions for separation, makes avizandum with the libel."
* 20th July 1849.—The Lord Ordinary having perused and considered the summons, finds the same, in so far as specific charges of maltreatment are libelled, relevant; and quoad ultra, appoints the case to be enrolled."
The defender reclaimed, and pleaded—That it was incompetent to award aliment until the pursuer had made out a prima facie case of ill-treatment, by the production of letters, the admissions on record, or in some other way. Here, the whole charges of maltreatment were denied, and yet aliment had been awarded on the bare statement of the summons.
Lord Justice-Clerk.--The decree reclaimed against is for bygone aliment; but the question, as it has been argued before us, is rather as to granting aliment for the future. Now, the pursuer has not asked any aliment for three years, which shows there can be no very pressing necessity for it: and in fact wife seems to be better off than the husband.
The Court pronounced the following interlocutor :“Remit to the Lord Ordinary to repone the defender against the interlocutors, on such conditions as may appear to him proper, as to the expenses or otherwise, with full power to his Lordship to entertain and dispose of any application for aliment or expenses which may be made to him at a future stage of the cause."
Lord Ordinary, Cuninghame.-Act. N. C. Campbell; John Martin, W.S. Agent.-Alt. P. Fraser; John Robertson, junior, S.S.C. Agent.-R. Clerk.- W.G.T./
cation, and remitted simpliciler to the Sheriff. Before extract, the pursuer having suggested that it was necessary that the interlocutor should contain findings in point of fact, the Court pronounced a fresh interlocutor finding in point of fuct, and of new repelled the reasons of advocation, and remitted simpliciter to the Sheriff See ante, vol. xxi. p. 610.
Action before the Sheriff for wages on account of services performed to a party deceased.
The Sheriff having assoilzied, the pursuer advocated, and the Lord Ordinary decerned in favour of the pursuer.
The defender reclaimed, when the Court pronounced the following interlocutor :
“ Alter the interlocutor complained of; repel the reasons of advocation, and remit the case simpliciter to the Sheriff; but find no expenses due in this Court.”
Deas, for the defender, suggested, that, by the statute 6 Geo. IV. c. 120, it was necessary that, in such cases, the interlocutor should specify the facts which the Court found to be established by the proof; and moved the Court of new to pronounce an interlocutor in the case. The above statute, $11, provides—"That when, in causes commenced in any of the courts of the sheriffs, or of the magistrates of burghs, or other inferior courts, matter of fact shall be disputed, and a proof shall be allowed and taken, according to the present practice, the Court of Session shall, in reviewing the judgment proceeding on such proof, distinctly specify, in their interlocutor, the several facts material to the cause which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide.”
Neaves, for the pursuer— The case is no longer in this Court. It has been remitted to the Sheriff.
Lord Justice: Clerk.—The decree has not been extracted. The case is still here.
The Lords pronounced as follows: “Find that the pursuer had failed to prove any bargain or contract for wages, or any contract of hiring between her and the late William Kemp; and find that the services founded on by the pursuer, as stated in the proof, are not of a kind or extent to infer in law any bargain between her and the deceased for wages as a servant, or to establish any claim in law against the representatives of the deceased : Of new, alter the interlocutor of the Lord Ordinary; repel the reasons of advocation; remit the cause simpliciter to the Sheriff; but find no expenses in this Court due.”
Lord Ordinary, Robertson.-Act. Neaves, Graham ; James Bayne, S.S.C. Agent.-Alt. Deas; D. M. Adamson, S.S.C. Ayenl. T. Clerk.--[W.G.T.]
17th November 1849.
First Division. No. 6.-Sir W. C. ANSTRUTHER, Complainer, v. Tas
EAST OF FIFE RAILWAY COMPANY, Respondents. Interdict - Railway-Private Statute - Contract--A railway
company cannot be interdicted from upplying to parliament to dissolve the company; nor can a party, not a shareholder, but whose lands would have been intersected by the proposed line, obtain an interdict against the repayment of calls, or insist that the private statute incorporating the company, and enabling them to make their railway, is to be taken as a contract between them and him, of which he is entitled to enforce implement, by compelling them to construct the projected line. This was an application against the respondents, who
16th November 1849.
SECOND DIVISION. No. 5.-ELIZABETH MOIR or RITCHIE, and Husband,
Pursuers, v. WILLIAM FERGUSON, Defender. Statute 6 Geo. IV. c. 120, § 11-Process-In an advocation at
the instance of a pursuer, the Court repelled the reasons of advo
were incorporated by act of parliament, to interdict them “ from taking any steps or proceedings having for their object the dissolution of the company, incorporated as aforesaid ; and from returning or paying back to the shareholders the money advanced and paid by them into the said company, in the shape of deposits or calls on the shares of the capital stock of the said company, held by the shareholders thereof; and from violating the contract or agreement entered into between the complainer and the said company, so long as the said agreement remains unimplemented by the respondents; and from acting in any other way prejudicial to the interest of the complainer, under the said contract or agreement, or contrary to the provisions of the statute incorporating the said company; or to do otherwise," &c.
The complainer was not a shareholder, but the proprietor of lands which would fall to be taken for the formation of the respondents' line. The contract referred to was an agreement by which, prior to the passing of the act, the complainer and the respondents had named an arbiter for settling any claims which might arise to the complainer against the company by the construction of their railway.
The present application was made in consequence of the complainer having received information that it was the respondents' intention not to proceed with their line, which had not been begun, but to abandon the project, to pay back the calls levied from shareholders, and to apply to parliament for a dissolution of the company.
The preamble of the respondents' act was in the following terms :
“Whereas the making of a railway from the Edinburgh and Northern Railway, at or near the village of Markinch, to the burgh and harbour of Anstruther Easter, with a branch to the Kirkland works, all in the county of Fife, would be a great public advantage, by opening an additional, certain, and expeditious means of communication between these and intermediate places, and also by facilitating communication between more distant towns and places : And whereas the persons hereinafter named are willing, at their own expense, to carry such undertaking into execution ; but the same cannot be effected without the authority of parliament.”
Section 3 enacted, that the respondents " shall be united into a company, for the purpose of making and maintaining the foresaid railway and branch, as after described, with all proper works, approaches and conveniences, belonging thereto, according to the provisions of the said recited acts, and of this act, and for other the purposes herein, and in the said recited acts, contained ; and, for the purposes aforesaid, such company shall be incorporated by the name of The East of Fife Railway Company,' and by that name shall be a body corporate, with perpetual succession, and a common seal, and shall have power to purchase and hold lands for the purposes of the undertaking."
Section 20 gave the company power to make the railway, and “ to enter upon, take and use, such of the said lands as shall be necessary for such purpose."
Section 22 bore reference to the line as it was to pass through the complainer's property, in the parishes of Elie and Kilconquhar; and it enacted
“ That the southmost line shall be the line adopted by the company in making the railway; and nothing herein contained shall enable the company to take any of the lands on the northmost, (marked 'alternative' line), except such as may be necessary for the formation of the southmost line.”
Section 30 limited to three years the period within which lands were to be purchased by the company.
The present application was presented before the expiry of this period.
The Lord Ordinary refused the note.
Macfarlane, for reclaimer-Every private act of parliament embodies a contract with all the parties whose interests are affected by it. The complainer represented the largest landholder along the line; and the company had powers to take his land compulsorily. He was entitled to force them to go on with their undertaking. This doctrine was recognized by the law of England. The Queen v. Eastern Counties Railway, 10 Adolph. and Ellis, 551.
Patton, in support of the interlocutor—This is truly an attempt to prevent the respondents from applying to parliament to dissolve the company. The company can't be dissolved except by act of parliament, and we have given notice of our intention. If the suspender has any grievance, he has a locus standi to oppose the dissolution bill in parliament.— Blackburn v. Finlay, 4th Feb. 1848.
Inglis, for reclaimer, cited Blakemore v. Glamorganshire Canal Navigation ; 1 Mylne and Keene, 154.
Lord Justice-General.—The English case is different from the one before us; and, therefore, whether the opinions then thrown out are good or not, I am decidedly of opinion, that it now being positively averred that it is intended to apply to parliament to dissolve the company, and that they have given notice of such intention, and that they are earnest in it-and as it is competent for Sir William to bring an action, he may like to vindicate his rights-I am of opinion this note of suspension should be refused.
Lord Mackenzie.--I am of the same opinion. I can see no use whatever in it. An interdict against going to parliament is incompetent, and seems useless, against taking any other steps to dissolve it; for no other step is competent but going to parliament. What step, then, are they going to take? It is not said they are going to take any step to dissolve it. Mr. Inglis said they are not going to murder the company, but to let it lie asleep for ever. Now, eternal sleep may be like death; but are we to grant an interdict against their doing nothing ? Now, as to repayment of calls, has he any right to interfere? There is no action warranting arrestment. I can see no right this party has to object to this repayment. As to the last part of the prayer, I cannot conceive this would be passed. We never granted such a suspension. We cannot presume they are to violate their contract. I never heard that, in a private act of parliament, every person interested was entitled, as if by contract, to enforce fulfilment. But I do not think it necessary to decide it.
Lord Fullerton.-I am of the same opinion. I do not sufficiently understand this English form of mandamus, or what was the exact effect of that form of procedure. When a statute empowers something to be done, and it is found impossible to do it, it is a strong thing to say that, at the instance of a party privately interested, a company may be compelled to go on, at however ruinous a rate to themselves.
Lord Jeffrey.-I am of the same opinion; and, indeed, scarcely think the matter debateable. The application here includes in its general conclusion a prohibition against going to parliament, and must be refused so far. As to the second special request, to interdict the repayment, I do not see any interest whatever this party has. Now, by passing the note of suspension, we intimate that we may at a future stage interdict. A suspension means an interruption of certain proceedings hoc statu. It may not be granted de presenti; but the passing the note recognizes the likelihood of an interdict being eventually granted. Now, if none of the conclusions for interdict can ever be supported, we should refuse the note of suspension. This is enough to decide the question; but I must dissent from the idea, that any but the shareholders of a private company can be held to have a title to interfere generally in this matter. Sir W. Anstruther is merely unus ex publico. As to his lands, he is entitled to nothing but indemnity. Now, here, they are not to be taken from him; and he cannot, therefore, claim to be held indemnis. I take Lord Eldon's dictum to be, that, after the act is passed, there is a contract between the shareholders inter se; and a minority have a persona standi to have the contract carried through, or the reason stated judicially why it should not; but as to all other parties but the shareholders, rebus integris, I hold they have no right. The contract as to them has never been constituted. I hold we are bound to assume here that this company cannot be dissolved but by act of parliament. I therefore assume they are going to parliament; and I think their reception in parliament will extinguish all future actions they are threatened with by this or any other party.
The Court adhered. Complainer's Authorities.-Reg. v. Eastern Counties Railway; I Rail. Ca. 509; 10 Ad. and EIT. 531. Reg. v. Inhabitants of Cumberworth; 3 B. and D. 108; 4 Ad. and Ell. 731, Rex v. Commissioners for Improving Market Street, Manchester; 4 B. and Ad. 355. Chambers' and Porteous' Law of Railway Companies, 563, 564. Hodges on Railways, p. 526. Edwards v. Grand Junction Railway Co.; 1 Myl, and Cr. 650. Stanley v. Chester and Birkenhead Railway Co.; 9 Sim. 264. Lord Howden v. Simpson; 10 Ad. and Ell. 793. 3 R. C. 294. Stone v. Commercial Railway Co.; 1 Rail. Ca. 400. Doo v. London and Croydon Railway Co.; 16. 257. Salmon r. Randall; 3 Myl. and Cr. 439. Rex v. Hungerford Market Co.; I U. and M. 112; 4 B. and Ad. 327. Rex v. Trustees of Luton Rouds; 1 Q. B. 860.
Respondents' Authorities.-Presbytery of Dunoon, 13th June 1844. Blackburn, 4th Feb. 1848.
Lord Ordinary, Robertson.-Act. Inglis, Macfarlane; J. F. Wilkie, S.S.C. Agent.-Al. Dean of Faculty (M·Neill), Patton; James L. Hill, W.S. Agent.-Bill-Chamber Clerk.--|F.H.]
17th November 1849.
Second Division. No. 7.-JAMES ANDERSON and Co. Suspenders, v.
John BURNET, Respondent. Public-Police-Suspension-Competency-Process- The pro
curator-fiscal of a burgh police court raised a complaint in that court against the proprietor of chemical works, in respect of an alleged nuisance under the burgh police act. The defender, on the ground that the nuisance alleged was not of the nature contemplated by the statute, applied for interdict against the fiscal jollowing out his complaint, and the police magistrute from entertaining and disposing of it-Circumstances in which the Court passed the bill, and granted interdict.
The Glasgow police act, 6 and 7 Vict. c. 99, provides, 159" And whereas the collecting of bones in houses, shops, cellars, and other places in populous districts, is attended with annoyance to the neighbourhood, be it enacted, that all persons dealing in bones shall at all times be bound to keep the premises in which bones are kept in a cleanly state, to the satisfaction of the superintendent of police or inspector of cleaning, and, when necessary, to fumigate such premises with chloride of lime, or other purifying matter, for removing offensive smells, at the sight of the said inspector, or of any person acting under him; and access shall at all reasonable hours be given to the said superintendent or inspector, or such other person acting under them, for the purpose foresaid; and any person failing to keep his premises in a cleanly state, or to fumigate the same when required, or to give access as aforesaid, shall, upon conviction in the police court, on the testimony of one credible witness, forfeit a sum not exceeding two pounds for each offence; and if it shall be established in the said court, on the testimony of two medical practitioners, or other evidence, that the collecting, keeping, grinding or using, in any way, bones in the vicinity of any dwelling-house, shop, or other place, is prejudicial to the health or comfort of persons residing or employed therein, it shall be lawful to the court to order such bones to be removed within such time as to the court may seem proper, and to prohibit such collecting, keeping, grinding, or using in future, under a penalty not exceeding five pounds."
And § 242—That "every person who shall, within the distance of one hundred
yards from any dwelling-house, burn any rags, bones, cork, or other offensive substance, to the annoyance of any inhabitant," shall be liable to a penalty of not more than forty shillings.
And $ 282“That if any person shall feel aggrieved by any sentence pronounced by the magistrates under this act, it shall be lawful for such person to appeal to the Court of Justiciary, at the next circuit court to be held at Glasgow .... and it shall not be competent to appeal from, or to bring the judgment of the ma. gistrates under this act under review by advocation, suspension and liberation, or reduction, or in any way whatever, other than is hereby provided for.”
The respondent, as procurator-fiscal of the police court of Glasgow, presented a complaint in that court against the suspenders, who are large manufacturing chemists, on the ground of contravention of the act, in respect of their keeping large quantities of bones on their premises, and manufacturing them in such a way as to be prejudicial to the comfort and health of the neighbourhood. The prayer of the complaint concluded as follows :
"And if it shall be established, to your honours' satisfaction, that the collecting, keeping, grinding or using, in any way, bones by the said James Anderson and Company, and James Anderson, in the vicinity of dwelling-houses, shops, or other places, as complained of, is prejudicial to the health or comfort of persons residing or employed therein, to order such bones to be removed within such time as to your honours shall seem proper, and to prohibit such collecting, keeping, grinding, or using of bones, by the said James Anderson and Company, and James Anderson, in future, under a penalty not exceeding £5."
The suspenders thereupon presented the present note of suspension. They stated, that they had carried on their works for upwards of forty years in the same locality; that the works were on the most extensive scale, and every effort was made to prevent the escape of any deleterious gasses. And they argued, that, though bones were used in the course of their manufacture, and were necessarily collected in great amount in their premises, the prohibitory clauses of the act did not apply to such an establishment as theirs, but only to small collections of bones in cellars or private houses. And the suspenders prayed the Court "to interdict the respondent from interfering with the complainers' works and manufacture, and from molesting and obstructing the complainers in making use of bones in the carrying on thereof, and from taking steps, by way of application to the police magistrates of Glasgow or otherwise, for the obstruc. tion and hinderance of the complainers in such manufacture, and specially from prosecuting and following forth a complaint served upon the complainers upon the 29th day of June 1849 ; and further, to interdict, prohibit and discharge, the police magistrates of Glasgow, or one or more of them, from entertaining or disposing of the said complaint, or from pronouncing any judgment or deliverance calculated to obstruct or interfere with the complainers in the use of bones in their said works and manufacture."
The application for interdict having been intimated to the police magistrate, he adjourned the case, and the Lord Ordinary on the Bills subsequently granted interdict as craved.
The respondent reclaimed, and pleaded—That whatever might be the merits of the suspenders' case, the suspension was incompetent, in respect of $ 282 of the act; and that, at any rate, it was incompetent to present any suspension until the magistrate should have pronounced judgment. At this stage, it was impossible to enter into the facts of the case, to see whether or not it fell within the statute.
Lord Justice-Clerk.-Had we been asked to give judgment in this case as on a passed note, it must have been necessary to go into the statute. But as that is not the position of matters, I think it right to say, that, as this is the first application of the kind under the statute, it is a case of such difficulty and importance, that I think, with the Lord Ordinary, that we must pass the note and continue the interdict. Of course, if the bones should still be kept in such a manner as to be of themselves noxious, the procurator-fiscal will have his remedy. We do not interfere with that, for the complaint in the police court only founds on the latter part of the clause in the statute.
Lord Medwyn.- I think we should pass the note.
Lord Cockburn.--As the note is to be passed, my opinion now is of little consequence; but I cannot agree with the opinions just given; on the contrary, I have the very clearest opinion, at least the clearest I can have when opposed to your Lordships, iu favour of the reclaimer. I entirely adopt his view.
Note passed, and interdict continued. Lord Ordinary, Murray.-- Act. Pepney ; Patrick Paul, S.S.C. Agent - Alt. Lord Advocate (Rutherfurd), Neaves; Webster and Renny, W.S. Agents.-R. Clerk.- W.G.T.]
“ Allows the complainers, or such of them as are feuars, to produce their titles on or before Thursday first."
This order having been renewed, with certification, and the Lord Ordinary having been moved, in respect of the complainers' failure to obtemper the same, to refuse the note, the complainers stated that the titles of Mr. Hogg, the only one of the suspenders who was a proprietor, were in the hands of Mr. John Alexander, S.S.C., who refused to deliver them up. They accordingly craved commission and diligence to recover the titles, and craved his Lordship, if necessary, to allow an amendment of the suspension, to the effect of putting a statement on record that the suspender Hogg was a proprietor.
The Lord Ordinary pronounced as follows :"In respect the complainers have failed to lodge their titles in terms of the interlocutor of 20th July last-also, in respect of the certification contained in the said interlocutor-refuses this note of suspension, and recals the interdict: Finds the complainers liable in expenses.”
The suspenders reclaimed, but the Court pronounced the following interlocutor :
“Remit to the Lord Ordinary to allow a diligence to the reclaimer James Hogg, &c.; and refuse as to the other parties."
Lord Ordinary, Robertson.-Act. Graham ; James Bell, S.S.C. Agent.-All. Mackenzie ; Macritchie, Bayley and Henderson, W.S. Agents.-T. Clerk.---|W.G.T. |
17th November 1849.
SECOND Division. No. 8.-GEORGE CHARLES MACKENZIE and others, * Suspenders, v. JOHN LEARMONTH, Esq. of Dean, and
another, Respondents. Process— Title to Sue-Servitude-Suspension-Certain parties,
as inhabitants and householders, petitioned for interdict against a proprietor and his tenant shutting up a piece of ground over which they alleged that they had, by immemorial possession, acquired a servitude of bleaching. The Lord Ordinary allowed ihe com. plainers, or such of them as were feuars, to produce their titles, under certification. The period limited having elapsed without production, the only one of the complainers who was a feuar stated that his titles were in the hands of a party who refused to deliver them up, and craved diligence for their recovery; but his Lordship, in respect of the failure to obtemper his previous order, refused the note. The complainers having reclaimed, the Lords remitted to the Lord Ordinary to allow a diligence to the feuar, and to refuse the same as to the other complainers.
This was a suspension and interdict against John Learmonth, Esq. of Dean, and Horsburgh his tenant, at the instance of certain parties, as tenants, householders and inhabitants, of the Dean Path, and other places and streets in and around the same, who stated, that they and the public in general had acquired a right of servitude over a certain vacant piece of ground, the property of Mr. Learmonth, with a sunk well therein, for the purpose of drying and bleaching clothes, and other purposes of utility and recreation; and they prayed their Lordships " to interdict the said John Learmonth and Thomas Horsburgh, and all others acting by or under their or either of their authority, from shutting up, or otherwise preventing the complainers from having access to, the piece of vacant ground and well after mentioned, hitherto used by them and others, inhabitants or householders of Dean Path aforesaid, för bleaching and drying clothes and other purposes; and to interdict, prohibit and discharge, the said Thomas Horsburgh from destroying the said well, and waters thereof, by putting filth or other noxious matter into the same; and the said respondents, and all others, from interfering with the complainers and others in their use and occupation of the same, as they and previous occupiers, possessors, and inhabitants aforesaid, have been in use to do from time immemorial.”
The respondents pleaded, that the complainers had shown no habile title.
The Lord Ordinary pronounced the following interlocutor:
17th November 1849.
Second Division. · No. 9.-ROBERT MILLER and others, Petitioners. Process - Factor Loco Absentis - Judicial Factor- Where a
factor loco absentis on a trust-estate has absconded, the proper course is, not to appoint another factor loco absentis in his room, but to sequestrate the estate, and appoint a judicial factor.
The late Andrew Purdon, stabler in Glasgow, by trust-disposition and settlement, dated 20th June 1816, and codicils thereto, conveyed to trustees his whole estate and effects, heritable and moveable.
The principal purposes of the trust were, for payment of certain annuities; and, lastly, for division of the proceeds of the trust-subjects among the truster's grandchildren equally, on the youngest of them attaining the age of twenty-one years complete.
In 1839, all the trustees having died, except one, who was permanently settled in America, a factor loco absentis was appointed. In 1841 this factor was sequestrated, whereupon Alexander Kirkwood was appointed in his room; but he having also become bankrupt, and absconded, the petitioners, the parties having the beneficial interest in the trust-funds, made “ the present application for the immediate appointment of a factor loco absentis, in room of the said Alexander Kirkwood," and suggested William Paterson as a proper person for that office. And they prayed the Court " to recal the appointment of the said Alexander Kirkwood as factor foresaid, and to nominate and appoint the said William Paterson to be factor loco absentis in the management of the said trust-estate, with the usual powers."
Lord Justice-Clerk.-The proper course, in the circumstances, is, not to appoint another factor loco absentis, but to sequestrate the estate, and appoint a judicial factor thereon. You must alter the prayer of the petition to that effect.
The petitioners accordingly altered their petitionstating that they made the present application “ for