death. That is the reason for my putting the question to Mr. Mure as to the period of Sir Charles' death. I quite concur in the argument of Mr. Mure, that the pursuers, as their father's general representatives, are entitled to demand delivery of all papers connected with the litigations in which their father was a party, such as memorials and opinions of counsel, and other papers; and, if withheld, the pursuers may compel delivery by an action of exhibition and delivery in the usual way. In the meantime, the present diligence ought to be granted for recovery of the six articles in the specification; and as to the remaining numbers, I see no necessity for granting it hoc statu, the correspondence therein mentioned being subsequent to the death of Sir Charles; and besides, the most of the documents ought properly to be in the pursuers' own hands.

Lord Medwyn.-I concur. With regard to the correspondence, the pursuers must have one side of the letters in their own possession, and those sent will be found in the letter-book of their agents; so that to this extent the application for a diligence appears unnecessary.

Lord Cockburn.-Unless the defender had consented, I would have refused the application for a diligence in toto. I am against granting diligences in the preparation of a cause.

Lord Moncreiff-I am of opinion that the pursuers are entitled to the diligence, not on the ground of the defender's consent, but because the pursuers have the right to it. Farther, if any difficulty occurs in obtaining access to the remaining documents, I am of opinion that the pursuers will, at an after stage of the cause, be entitled to recover the whole of them in modum probationis.

The Court pronounced the following interlocutor :"Alter the said interlocutor in so far as regards the first six articles of the specification; and, quoad ultra, refuse the said reclaiming note, and adhere to the Lord Ordinary's interlocutor; and grant diligence against havers, at the pur-uers' instance, for recovery of the said six articles in the said specification; and grant commission to George Moir, Esq. advocate, &c.: Reserve all questions of expenses; and remit to the Lord Ordinary to proceed with the cause."

Lord Ordinary, Murray-Act. Lord Advocate (Rutherfurd), Marshall, Mure; John Whitehead, S.S.C. Agent.-Alt. Anderson, E. S. Gordon; Cuninghams and Bell, W.S. Agents.-R. Clerk-F.H.

11th December 1849. FIRST DIVISION.

No. 45.-JAMES SMITH, Suspender, v. DUNCAN M'INTOSH,

Respondent.

Cessio-Suspension-A debtor who had obtained a decree of cessio suspended a charge upon debts acquired prior to the decree, on the ground that property admittedly received for his behoof by the trustee under the cessio, before becoming trustee, had not been ac counted for--Charge suspended, for the purpose of investigation. The suspender had obtained a decree of cessio in 1834, having granted for that purpose a disposition omnium bonorum in favour of Little, as trustee for his creditors. This was a suspension of a charge upon two debts contracted prior to the cessio, in favour of two creditors who had appeared in that process, and had subsequently assigned their debts to the charger.

The ground of suspension mainly insisted in was, that, in 1833, before Little became trustee under the process of cessio bonorum, the suspender had assigned to him two bills, amounting, with interest and expenses, to £143. This assignation, though bearing to be for value, was admittedly made for the suspender's behoof. He contended, that as neither the trustee nor the creditors had accounted for the property so assigned to them, he was entitled to have the note of suspension passed, for the purpose of investigation.

The charger admitted the assignation of the two bills, but stated that nothing had been recovered under

them. He also judicially declared that he did not insist for diligence against the suspender's person, but limited the charge to property acquired by the suspender subsequently to the decree of cessio.

The Lord Ordinary pronounced the following interlocutor:

"7th December 1848.-The Lord Ordinary having heard counsel in this suspension, and thereafter considered the record, and whole process-in respect that the suspender has not substan tiated, by the statements on record or productions, any valid objections to the claims and grounds of debt charged on, and that the charger has judicially declared that he does not insist in the charge with a view to enforce personal diligence against the suspender, but to attach, habili modo, funds claimable by him as the suspender's creditor, which is legal and competentrepels the reasons of suspension: Finds the charge orderly proceeded, and the charger entitled to expenses, as the same may be taxed by the auditor; and decerns: Declaring that it is not intended, by this judgment against the principal debtor and his cautioner in the suspension, to foreclose any claim or plea competent to his just and onerous creditors inter se in the multiplepoinding specified in the conclusion of the charger's statement of facts, under the debtor's disposition omnium bonorum, or otherwise, or any claim that may be preferred by the charger for advances or loss, in liquidating the funds of the debtor, as accords.

"Note.-The Lord Ordinary is not satisfied, from anything stated on the part of the suspender, that there is any well founded objection to the assigned claims against the suspender, which are commented on in the reasons of suspension. These, certainly, were at one time valid claims constituted against the suspender, and nothing is offered to be proved to cut them down. "In the next place, there does not appear to be any ground for alleging that the charger, or, rather, that the trustee under his cessio, has been guilty of any negligence or mora in the recovery of funds assigned in the cessio. It is not stated what fund or property assigned (if any) the trustee has failed to recover. This case, then, is ruled by that of M'Kissock, (Fac. Coll. 10th February 1814), where a similar plea was repelled.

"As the charger, therefore, has all along disclaimed any intention to enforce personal diligence against the suspender, and as the allegations in articles 9 and 12 of the charger's statement, not specially controverted, show that there were funds which the charger was entitled to attach when he was prevented from doing so by the suspension, it is thought that a decision repelling the reasons of suspension must now pass, to give the charger redress against the suspender and his cautioner, and so as to open a fair competition among the suspender's onerous creditors." The suspender reclaimed.

Lord Justice-General-I do not think we are called on to decide the merits of this suspension. But is the case in such a position that we should at once repel the reasons of suspension in toto? I think not. The case of M'Kissock is a direct precedent. In that case an inventory was handed over-here, there is an express admission of the assignation of these bills to Little. If he got them, he held them for behoof of the creditors. I think there is here a reasonable demand for investigation, and am for remitting the case for that purpose.

Lord Mackenzie.-I think so too. This is not a concluded cause. No proof has been taken, nor, indeed, has any proof been allowed. This is an admitted conveyance of property, of considerable value, to Little. The other side have nothing whatever to produce to show what has been done with it. Are they entitled to throw on the suspender the whole onus of showing what has been done with this property? I think not. When creditors get a disposition omnium bonorum, they are bound to take some charge of the property. They are not entitled to plead against the bankrupt that he has done nothing. I entirely agree in the course proposed by your Lordship. Lord Fullerton.-I don't see any great objection to the course here proposed. However, when I see the circumstances in which this suspender stands-the fact that the assignation bears to be for value out and out-and when no averment is made that the suspender ever offered to prove anything--I own I feel

inclined to differ.

Lord Jeffrey absent.

Alter, and remit for investigation,

Lord Ordinary, Cuninghame-Act. Macfarlane; James Peddie, W.S.Agent.-Alt. Inglis; Clason and Clark, W.S. Agents.W. Clerk.-F.H.]

11th December 1849. FIRST DIVISION.

No. 46.-ROBERT LOGAN, Pursuer, v. EDWARD ELLICE,

Defender.

Jury Trial-Tender-Expenses-Process- In an action to recover payment of £360 as resting-owing under an agreement, and £326 as damages due for breach of the agreement, the defender tendered £205 in full of all claims. The pursuer had a verdict for £148: 15s. as resting-owing, and £33 damages. The Court found the defender entitled to the expenses incurred subsequent to the date of the tender. Question, Whether the pursuer was entitled to expenses prior to the tender, and also to a part of the expense of stamping the mutual agreement?

This was an action to recover payment and damages due under an agreement whereby the turnips and wintering on the farm of Drumderfit, in Ross-shire, were to be taken by the defender to feed sheep belonging

to him.

Three issues were sent to trial. The first was, whether the agreement had been entered into; the second and third were as follows:

"2. Whether, under the said agreement, the defender is indebted and resting-owing to the pursuer in the sum of £80 sterling, or any part thereof, with interest thereon, as the price or value of the said outrun or pasture; and in the sum of £288 sterling, or any part thereof, with interest thereon, as the price or value of the said turnips?

3. Whether, in violation of said agreement, the defender, by himself or others, and for whom he is responsible, acting on his behalf, wrongfully failed to have the said turnips properly fed off by sheep folded on the ground, and wrongfully exceeded the period of a fortnight limited for the sheeps' run of the young clover, and wrongfully prevented the pursuer from stripping the said turnips, or any part thereof, for the purpose of being laid on dry ley ground; all to the loss, injury and damage, of the pursuer? Damages £326."

The following tender had been made by the defender on 8th December 1847:

"DEAS, for the defender, stated, that without prejudice to, but under express reservation of, all legal rights and pleas competent to the defender, in the event of this offer not being accepted of, be now, with a view to terminate this litigation, tendered to the pursuer £205 sterling, and the expenses of process (as the same shall be taxed by the auditor of Court) incurred by the pursuer up to this date, as in full of the pursuer's claims under the present action; and he offered instant consignation accordingly, upon its being intimated at the bar that this tender was acceded to; or instant payment, on any arrestments used in his hands being withdrawn or discharged.'

On 28th July 1849 the jury found

"for the pursuer on the first issue: On the second issue, find that the defender is resting-owing to the pursuer, for the pasture and turnips, the sum of £148: 158., with interest thereon from 11th January 1847; and find for the pursuer on the third issue, and assess the damages at £33."

The case was in the roll to-day to apply the verdict, when the pursuer claimed expenses prior to the date of the tender.

Deas, for defender, cited Muckarsie v. Dickson, 28th November 1848, supra, vol. xxi. p. 31; and Strachan v. Munro, 5th July 1845.

Inglis for pursuer-The tender is of a sum, with expenses up to its date. If the tender had not included these expenses, it would have been a bad tender. If the tender had been accepted by me, I would have had

my expenses up to the date. In Strachan v. Munro, nothing whatever was decided as to prior expenses.

Lord Justice-General-I see no principle laid down in these authorities as to expenses prior to the tender. This seems to me a discretionary matter, which we shall be in a better situation to deal with when the account is before us.

Lord Mackenzie.-I am of the same opinion. But I won't say that I will altogether disregard the tender as an element. I won't say whether it is conclusive one way or the other. Lord Fuller ton concurred.

Lord Jeffrey absent.

The Court pronounced the following interlocutor:66 Apply the verdict of the jury; decern against the defender for the sum of £148: 15s. for pasture and turnips, with interest thereon from 11th January 1847, and also for the sum of £33 in name of damages: Find the pursuer liable in expenses subsequently to the 8th of December 1847, being the date of the tender; 'allow an account thereof to be given in, and, when lodged, remit the same to the auditor to tax and to report: And before answer as to the pursuer's claim for expenses prior to the date of the tender, and for the expense of stamping the agreement, appoint an account of these expenses to be lodged."

Act. Neaves, Inglis; L. Mackintosh, S.S.C. Agent.-Alt. Deas, J. A. Wood; Shepherd and Grant, W.S. Agents.-Jury Clerk.-[F.H.]

11th December 1849.

SECOND DIVISION.

No. 47.-HUGH STEVENSON, Suspender, v. W. L. EWING and others, Respondents.

Trust-Clause- Construction--Suspension-Under a trust-disposition and settlement, power was given to assume additional trustees in case any of them should decline to act, or die before the trust-purposes were fully fulfilled. Two of the trustees having predeceased the truster, the majority of the remaining trustees proposed to assume additional trustees; whereupon one of their body suspended, on the ground that the case which had occurred was not one in which the power of assumption was granted. Terms of a deed under which-Note refused.

In June 1843, the late Miss M'Lean executed a trust-disposition and settlement in favour of the four persons there named as trustees, and such other

"person or persons as they may assume in virtue of the powers hereinafter committed to them, and to the survivor of them accepting, as trustees or trustee, for the ends, uses, and purposes after specified-a majority of said trustees named or assumed, accepting and surviving at the time, being always a quorum, and to the onerous assignees of said trustees or quorum, or survivor: And I nominate and appoint my said trustees, and the acceptors and survivor of them, or their quorum, to be my sole executors and intromitters with my moveable estate."

The deed conferred the following power of assumption of new trustees:

"Further, in case any of my trustees decline to act, or in case of the decease of any of them before the purposes of this trust are fully fulfilled, the surviving or remaining trustees, or their quorum, shall have power to add and assume such other proper person or persons as they shall judge fit to be trustee or trustees along with them in place of those who may die or decline to act; and such trustees so to be named or assumed shall possess the same powers and privileges as are conferred upon the trustees above named."

One of the trustees named having died, Miss M'Lean, by codicil dated 13th April 1847, on the narrative, "that since I executed the foregoing deed of settlement, one of my trustees, Charles Macintosh, Esq., has deceased, and being desirous to appoint other trustees to act along with those still remaining," named Mr. George Macintosh and the suspender "to be additional trustees and executors with the surviving trustees before designed,

with all the powers and privileges which are conferred upon my trustees by the within deed of settlement."

For some time before her death, Miss M'Lean was confined in a lunatic asylum. She died on 29th August 1849, survived by three of the trustees named, viz. the respondents, Mr. Leckie Ewing and Mr. Robert Hill, and the suspender Mr. Stevenson.

The surviving trustees having accepted, Mr. Ewing and Mr. Hill proposed to assume two additional trustees; whereupon the suspender presented the present note of suspension and interdict against his colleagues and the proposed trustees, on the ground that the case which had occurred, of the predecease of certain of the trustees named, was not one in regard to which the power of assumption was granted.

The Lord Ordinary on the Bills passed the note, and continued the interdict, which had been previously granted, with the following

"Note.-There is some nicety in this case; but, on the whole, the Lord Ordinary thinks that the note must be passed, to have the construction of the trust-deed deliberately settled, and that no new nomination of trustees should be sanctioned or allowed to be acted on till its legality is thus ascertained.

"There is no general power in this case to appoint or assume additional trustees, at the mere discretion of those who may be acting. It is a special power only 'in case any of them shall decline to accept, or die before the trust-purposes are fully fulfilled;' and the question is, whether the case of some of the trustees named having died (it is not said how long) before the truster, should be held to be one of the cases in which such power may be exercised? The Lord Ordinary rather inclines to think that it is not-1st. Because the deed is properly a testamentary deed, which had properly no existence till the death of the granter, and can therefore only be held as nominating persons who were in existence at that time; and, 2d. Because the whole tenor of the clause in question seems to import that the truster contemplated only the death or declinature of persons alive, and in a capacity to act as trustees at that period. This is clear as to the leading contingeney of their declining to act-which they could only do if alive to make their election; and even as to the other case of death, the words are not who shall have died before me, or who, though surviving and accepting, may afterwards die, before the whole trust purposes are fulfilled; but only the last words, which seem plainly to imply that the persons by whose death the power of assumption emerged, had accepted and fulfilled some of the trust-purposes while alive. It is not even said who may die before any or all of these purposes are fulfilled-but only before the whole are fully accomplished." The respondents reclaimed.

Lord Justice-Clerk.-This is a question rather of some novelty as arising in the Bill-Chamber, and the parties have intimated their wish to obtain the judgment of the Court as on a passed note, so as to make a conclusive determination of the point between themselves. On that account, and also because I had the misfortune, during the argument, to form an opinion adverse to the interlocutor, I was desirous, along with your Lordships, to take further time for consideration of the case.

The terms of the clause in the trust-deed bestowing the power of nomination are, in my opinion, in general, not limited termscomprehending all cases of failure by death, and not specific, and restricted to particular cases. One trustee died before the insanity of the truster. She filled up that vacancy herself. She then became insane. Two of the trustees named by her predeceased her; and the majority of the remaining trustees propose to name, and have named, other trustees. Another of the trustees objects, and has brought this suspension and interdict substantially to try the competency of that nomination. The clause in the trust-deed declares "In case any of my trustees decline to act, or in case of the decease of any of them before the purposes of this trust are fully fulfilled," the survivors shall have power to add and assume such persons as they shall judge fit, in place of those who may die or decline to act.

The case contemplated, of death, is the most general which can be described: It is death before the purposes of this trust are fully fulfilled. That seems to be, to cover the case of death

before the commencement of the execution of the purposes of the trust, as much as death during, and in the course of the fulfilment of the purposes of the trust, after commencement. It was said, that the expression was not in case of decease before me. Certainly not: That would have been a very limited case indeed, and would not have covered death after the testator. But how does the other expression exclude death before the testator, especially in circumstances which preclude any presumption as to her intention, seeing that she was insane at the time of the predecease of those trustees? The trust-purposes are not fully fulfilled: That is clear. Then the two trustees died before the purposes have been fully fulfilled: That is also one of the facts. But it is said that the expression, "before the purposes of this trust are fully fulfilled," imports that the claim is inapplicable unless the execution of the purposes, or some of them, has commenced. That is not, in my judgment, a sound construction of the import of the terms; and, as far as the intention and object of the truster is to be looked to, most certainly the death before the commencement of any operations under and in fulfilment of the trust was only an event which renders the nomination of additional trustees more expedient than if the fulfilment of the trust was far advanced. Suppose two of the trustees had died after her, but before the first meeting of the trustees, (which, at the time of the cholera or influenza in the two last years of her life, might so easily have occurred), according to the construction of the suspender, the power of nomination would have been inapplicable. No doubt the expressions selected have been taken with a view to the greater probability that the trustees would die after her, since she might naturally have expected to have the power of filling up vacancies by death, as she did in one case. But the terms are such as necessarily embrace and extend to the death of the trustees before the operation of the trust com

mences.

I have the less hesitation in arriving at an opinion in opposition to that expressed by the Lord Ordinary, because, in the close of his note, he argues on the supposition that the words had been," before the WHOLE trust-purposes had been fulfilled,” and, on that supposition, says that this imports that some of the trust-purposes had been fulfilled, in the predicament so described. I am not called upon to say what opinion I should form had such been the terms, the remark on which has obviously influenced the Lord Ordinary. On the terms which actually occur in the deed, I.am of opinion, that as none of the trust-purposes are fully fulfilled-as the execution of none of them had commenced, because the death happened when of necessity they were unfulfilled-the power of nomination is open. And while I admit that such power of nomination cannot be exercised in cases in which it is not given, yet, on the other hand, this appears to me to be a clause to which, when there is an alternative between an important and sensible arrangement, and a critical and nice-drawn distinction defeating the power of nomination, the principle ought to be applied, of aiding the object and utility of the clause-always, of course, having regard to the competency of the exercise of the power consistently with the terms in which it is given.

Lord Medwyn.-There is some nicety, certainly, in this case; but I rather incline to the view taken by your Lordship. The testatrix proposed to have five trustees, and named them. It does not appear that she was influenced as to this number by personal regard merely, but thought the trust-management would be best in the hands of five. Now, then, if one "dies before the purposes of the trust are fully fulfilled," power is given to assume a new trustee. I do not think this is limited to one dying after he has begun to act; but that it must apply to one dying at any time before, even before the testatrix, as I see no reasonable presumption that the restricted sense put upon the expression gives the true meaning of the lady. The question before us is only a question of power. I think the trustees have the power they claim; but I wish I could be satisfied that the majority have done what they profess in choosing two additional neutral trustees.

Lord Moncreiff-When I read this case, I thought the interlocutor right, in simply passing the note. After hearing the case argued, and farther considering all that was produced to us, I still think, with the Lord Ordinary, that it is a case of considerable nicety. I should have wished to see the entire deeds. But, taking the case as it stands, I am inclined to think, that, on a right construction, the case in which the respondents have acted is not a case in which the testatrix has given power to assume, generally, other trustees. The appointment is to the

trustees named, being four persons, and "to such other person or persons" as "they may assume in virtue of the powers hereinafter committed to them." Then the power is in these words"In case any of my trustees decline to act, or in case of the deccase of any of them before the purposes of this trust are fully fulfilled, the surviving or remaining trustees, or their quorum, shall have power to add and assume such other proper person or persons as they shall judge fit to be trustee or trustees along with them, in place of those who may die or decline to act." On the death of one of the four named, the testatrix appointed two others. The statements of the parties are at variance as to the date of this last appointment, the suspenders saying April 1846, and the respondent on 13th April 1847. After that, two of the trustees, George Macintosh and Mr. Ogilvie, died, before the testatrix: But the dates are not given; and, in particular, it does not appear whether Miss M'Lean was in the lunatic asylum before these trustees died, or not. And yet that might be exceedingly material, if she was still of sound mind at their death, and made no additional appointment: In this and other points the record is very unsatisfactory. Three trustees survived the testatrix, who constituted a majority, and a sufficient quorum. No one of these has failed since her death. All accepted, and none have died.

In this state of the case, the question is, whether, on a right construction of the power of assumption, it applies to the case, of all the trustees surviving having accepted, and, none of them being dead, there is power to assume, in place of those who died before the testatrix. It is plain that the case of declining to accept, which comes first in the clause, relates to the case of their declining to accept, which must be after her death; and it seems to be not unfairly inferred, that the case of any of them deceasing must also be taken to mean after her death. There are here three surviving; and the necessity which she provided for, of any one declining to act, or the decease of any of them, has not yet occurred. The latter event may occur: But it has not yet occurred; and in the meantime the trust is full, there being three trustees accepting and alive. And non constat, that the testatrix ever intended to give power to them, to name others; in place of those named by herself, who had already died.

But I think the case is attended with difficulty; which is increased by a defect in the record, in not stating dates specifically, and the want of the entire terms of the appointment.

Lord Cockburn. I concur with the majority. I do not think there is any difficulty in the case.

The Court remitted to the Lord Ordinary to

refuse the note.

Lord Ordinary (on the Bills), Jeffrey.-Act. Inglis; Patrick Paul, W.S. Agent.-Alt. Lord Advocate (Rutherfurd), Christison; Webster and Renny, W.S. Agents.-R. Clerk.-[W.G.T.]

11th December 1849. SECOND DIVISION.

No. 48.-DAVID RAMSAY ANDREWS and others, Pursuers, v. WILLIAM KENNEDY LAURIE, Defender. Title to Sue-Completing Titles-Service-Fee and LiferentA woman who held a real burden on an estate, under a destination to herself" in liferent allenarly, and to her children in fee," having died, her children served to her as heirs of provision, and raised an action of poinding of the ground for payment of the debt. The defender pleaded want of title, inasmuch as, under the destination, service was not the proper form to carry the succession-Held that the children had a valid title to pursue. Opinion, That, if service were necessary, a service to the mother as trust fiar was correctly expede.

In November 1810, the late William Kennedy Laurie, by his trust-disposition and settlement, conveyed the lands of Woodhall to trustees, for certain purposes therein specified. The deed contained the following bequest: "And farther, I hereby leave to Robina M'Culloch, daughter of the said deceased John M'Culloch and Margaret Kennedy, and wife of John Andrew, exciseman in Kilmarnock, in liferent, for her liferent use allenarly, and to her children, share and share alike, in fee, the sum of £500 sterling; and I direct my said trustees to pay the interest thereof to the said Robina Mac

Culloch, otherwise Andrew, at the first term of Whitsunday or Martinmas after my death, and annually thereafter."

In 1823, the surviving trustee executed a disposition. and deed of tailzie, in terms of the trust-deed, in favour of the defender's father, on which he was infeft. In the entail, the above sum of £500 was declared a real lien and preferable burden on the estate, and this was specially engrossed in all the subsequent titles and infeftThe defender having succeeded his father, the pursuers, as heirs of provision served and retoured to their mother, the late Robina M'Culloch or Andrews, raised the present summons of poinding of the ground.

ments.

The defender pleaded, in limine, that the pursuers had not a sufficient title to maintain the action. Their only title was a service to their mother as heirs of provision. Now the legacy was bequeathed to her in liferent allenarly, and to her children in fee. Under the destination, the fiduciary fee was in the mother, and the proper way for the pursuers to take up the succession was by a declaratory adjudication; or at least, the service expede was not the proper form of procedure.

The pursuers answered, that the service was correctly expede by them as heirs of provision to Mrs. Andrews, as the fiduciary fiar in the real burden, and that this mode of serving to the fiduciary fiar had been the universal practice since the case of Dundas; but that, in any view, as it was not disputed that they were really the children of Mrs. Andrews, they had a sufficient title to insist in the action.

The Lord Ordinary repelled the defence,"
The defender reclaimed.

Lord Justice-Clerk.-I do not see any necessity for service at all in this case; although, if a service were necessary, I for one am quite satisfied with the form in which the service has been expede. As legatees, they could carry on any action of the kind without a service. If there had been any doubt as to whether these parties were the children of the late Mrs. Andrews, that would have been a different case, and a service might have been necessary. But there is nothing of that kind here.

Lord Medwyn.-I am of the same opinion. I have not the least doubt that the title is quite sufficient.

Lord Moncreiff-I am quite satisfied. Mr. Horne did not refer to the case of M'Intosh, where the decision in Newlands is explained.

Lord Cockburn.-I concur.

The Court adhered.

Pursuers' Authorities.-Bell's Prin. 1713, 1714. Newlands, 9th July 1794; M. 4289, 4294. Wellwood, Bell's 8vo. cases, 197. Dundas, 23d Jan. 1823. Duff's Feudal Conveyancing, pp. 447, 453.

Defender's Authorities.-Newlands and Wellwood, supra. Gibson, M. 11,481. Thomson, 1 Dow, 417. Dewar v. M'Kinnon, 5th May 1825; 1 W. and S. 169. More's Stair, p. 212. Maxwell v. Logan, 20th Dec. 1836.

Lord Ordinary, Wood.-Act. Marshall, Cowan; Patrick, MacEwen and Carment, W.S. Agents.-Alt. Bell, Horne; Andrew Scott, W.S. Agent.-R. Clerk.-{W.G.T.]

12th December 1849.

FIRST DIVISION.

No. 49.-OATES SHARPE, Pursuer, v. STEPHENSON and COMPANY, Defenders.

Summons-Writ-Objection to a summons, that while its date set forth truly the year of the Queen's reign, but contained an error in the year of grace, sustained as a good preliminary defence. In this case the summons was dated as follows:"Given under our signet at Edinburgh the 27th day of June in the thirteenth year of our reign, 1848."

The signet-officer had, as usual, written upon it the date of signeting as "27th June 1849."

The summons claimed interest down to a period set forth in the body of it as "April last, 1849."

The defender pleaded, in limine, that the discrepancy of date made the writ a nullity, or, at least, was a good preliminary defence against the action.

The Lord Ordinary reported the point verbally to the Court.

Inglis (Adam with him) for defender-In the case of Henry v. Mather, 25th Feb. 1837, (ante, vol. ix. p. 331), Lord Corehouse points at a distinction between a flaw of this sort operating as a nullity so as to destroy the summons, and all that may have followed upon it, and its operation merely as a good dilatory defence when stated in limine. I am told I may have the true date by reading the summons, which bears a cause of action extending into the year 1849. But the question is, have I had a proper citation? I am not bound to read the summons for that. I am bound only to read the copy of citation, which refers merely to a summons "dated 27th June current." There is, therefore, a discrepancy between the citation and the summons. I am therefore not bound to answer. And I am here only to say, that I have not been lawfully brought here; because this summons, bearing two contradictory dates, is to be considered as having no date at all.

Lord Mackenzie.-Suppose the summons had said, "in the hundredth year of our reign," the year of grace being correctly given: That would be nonsense. But would it not be quite easy to see what the nonsense meant?]

That would be rather a loose way of dealing with forms of process. In questions of this sort, you must look, not to substance, but to form. Otherwise, how far is this to be carried?-Cooper v. His Creditors, 9th July 1833; ante, vol. v. p. 540.

Neaves (Logan with him) for pursuer The copy of

citation here could not mislead the defender. The date there was correctly given; it is only when the principal summons was seen that the objection was taken. The year of the reign is by custom written at length; while the year of grace is written in figures. This custom shows that the latter is the subordinate date. This is not a nullity. It is competent, therefore, to see whether this was a bona fide objection. But there is authority against giving it this effect. If the falsity of such a date be bad, the erasure of it must be worse; and yet the erasure of the last figure of the year of grace was not held fatal in Ferrier v. Jackson, 26th May 1838. Under that decision, if, in this case, the 8 had been erased, and a 9 had been written on the erasure, this summons would have been a good writ.

Inglis, in reply, cited Taylor v. Malcolm, 5th March 1829; ante, vol. i. p. 132.

Lord Justice-General.-I think the objection is not cured by telling the party to read the summons; and that it is in itself an objection which we must sustain.

Lord Mackenzie.-I incline to the same opinion. I am not for holding the objection to create an absolute nullity. If it were, it would strike at all that the parties had done, even if peremptory defences had been proponed. But, here, nothing has been done. The objection is taken in limine. And I think it the safer course to give it effect when pleaded, as it is here, in due time. Lord Jeffrey.-I am entirely of the same opinion. I have some doubt whether the decisions which have occurred on this point can be reconciled. It seems, however, to have been held in some of those cases that the change had been made on the

The Lord Ordinary pronounced as follows:

"Having advised with the Lords of the First Division of the Court, finds that the error or inconsistency in the date of the summons, although not inferring a nullity of the writ, forms, when stated in limine, a good dilatory defence to the action; and, therefore, dismisses the same; reserving to the pursuer to bring a new action, if he shall be so advised, and to the defenders their defences thereto as accords; and decerns: Finds the defenders entitled to expenses; and remits the account," &c.

No. 50.-ALEXANDER TORRIE and others, Pursuers, v. THE DUKE OF ATHOLE, Defender.

Public-Title to Sue-Right of Way-Three inhabitants of three different towns, all situated at a distance from the estate of A, held to have, as such, a sufficient title and interest to sue a declarator of a public right of way, averred to have been actually used by the public for walking, riding, and driving cattle.

This was an action for the purpose of asserting the right of the public to a line of road from Blair-Athole in Perthshire, to Castletown of Braemar in Aberdeenshire, passing through Glen Tilt, the property of the defender. The pursuers were an advocate of Aberdeen, residing there, a merchant residing in Perth, and a writer to the signet residing in Edinburgh. They averred that the road in question had been used and travelled on by the public, either by riding or walking, or by driving cattle, for time immemorial, or at least for forty years and upwards; that the expense of its repair and maintenance had been defrayed out of funds collected under the authority of various local road acts; that it had been under the management of district trustees appointed under those statutes; that they themselves (the pursuers) had been in use to travel along the line of road in question, but that of late the defender had obstructed the public from using it at all, where it passed through his property, by setting up gates and fences, and by stationing servants to prevent travellers from entering upon it at any point within Glen Tilt.

It was also averred, that on certain specified dates subsequent to the raising of the action, the pursuers had been obstructed by the defender in their attempt to travel along the road in question.

It also appeared that one of their number had paid statute-labour money, applicable to the roads of the county of Perth within which the disputed portion of the road was situated.

The record also contained the following averment:"That in various parts of the said road, the said defender, or his predecessors or others, have, with or without the authority of the said district trustees, at various times made short new pieces of road, connecting together portions of the old road; which new pieces, avoiding ascents and other inequalities of the old road, and possessing the character of repairs or improvements, such as those having the charge of the road might be