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ABANDONMENT OF CLAIM-See Personal Objection.
ABERDEEN ACT-See Entail
ACQUIESCENCE-See Road, Turnpike.
ACT OF SEDERUNT ;-21st December 1723-See Fiars. 13th
February 1730_See Curator, 14th December 1756, S8 5 and
6; 1828, 88 67, 110_See Process. Removing. 18th November
1838_See Disentail. 17th July 1844, § 4 See Expenses.
24th February 1846–See Process.
ADVOCATION-See Expenses. Process.
- Competency–Final Judgment-Statutes 50 Geo. III.
c. 112, § 36; 6 Geo. IV. c. 120, § 45—Process—In a petition
for interdict against the cutting off of any water-courses
leading to the petitioner's works, the sheriff, in the same
interlocutor, recalled the interdict previously granted with
regard to one of these, and assoilzied; but, as regarded an-
other, ordered minutes of debate—whereupon the petitioner
applied for leave to advocate the interlocutor under the pro-
visions of the statute 50 Geo. III. c. 112, $ 36. The Lord
Ordinary having sustained the sheriff's judgment, the peti.
tioner reclaimed; and it being objected, that as this was an
advocation of an interlocutory judgment, the Lord Ordinary's
decision was final: Circumstances in which-Held, that
the judgment quoad the water-course, as to which interdict
had been refused, was a final judgment, and the Lord Ordi.
nary's interlocutor competently submitted to review ; but,
before pronouncing on the merits, remit made to the sheriff
to decide the whole cause. Macfie v. Provost and Magistrates
of Greenock, 15th June 1850, p. 454.
- Interlocutor-Judicature Act-In an advocation, the
Lord Ordinary adhered simpliciter to the sheriff's findings in
point of fact, and did not embody them anew in his inter-
locutor-Held that there was here a failure to comply with
the 40th section of the Judicature Act; and the case was
remitted, in order that the interlocutor might be put into
the shape required by the statute. Wishart v. Motherwell's
Trustees, 3d July 1850, p. 521.
FFIDAVIT-See Bankrupt. Sequestration.
GENT AND CLIENT—See Implied Mandate. Indefinite Pay-
ment. Petition, Summary.
- A law-agent, in rendering his account to his client,
having offered to deduct £32 therefrom, and to accept of
the balance of 120,“ provided the same be remitted by' a
certain day: Circumstances in which-Held, that the
client had not timeously adopted the proposal, and that
the agent was entitled to full payment of his account,
subject to taxation. Cullen v. Mitchell, 19th June 1850,
GENT AND PRINCIPAL_See Delivery.
AGREEMENT—See Bill of Exchange. Pactum Illicitum. Per.
sonal Exception. Sale. Stamp. Trust-Conveyance.
- Clause--Construction--A landowner made an agreement
with an iron-foundry company containing the following
clause :-“ And further, the said J. C. hereby grants to the
said company and their foresaids the command of all the
water on the lands of O., and on any of the neighbouring
proprietors' lands which the said company may think proper
to lead through the lands of 0., in such way and manner as
they or their foresaids may think most proper for the use
of the works, that either now are, or hereafter may be, carried
on by them at M., and that either in making dams, water,
leads, or otherwise, which they, their heirs or assignees, shall
have as full power to do as the said J. C. might have done
before entering into these presents, and that at any time
during the space of 999 years from and after Whitsunday
1787 years." --Held that the company were entitled to use
this water-course as a canal for the carriage of minerals to
their works, and to make a towing-path along its banks for
that purpose. Swan's Trustees v. Muirkirk Iron Company,
1st Feb. 1850, p. 205.
- Contract-Construction-A glazier received an order
to glaze window-sashes before the duty on glass was taken
off. It was admitted that the rate of payment in view of the
contracting parties was the market rate. While the window-
sashes were in the glazier's hands, the duty was abolished,
and a drawback allowed upon unused stock on hand. The
glazier refrained from glazing the window-sashes till he had
received payment of the drawback on the glass employed by
him for that purpose. Held that he was entitled to charge
his employer according to the market rate at the time of
contracting, without allowing any deduction on account of
the drawback: and that the exact time when the glass was
put into the sashes was immaterial to the question at issue.
Malloch v. Hodghton, 28th Nov. 1849, p. 33.
- Mandate-Sale—The holder of scrip for fifteen railway
shares instructed his broker, on 31 March, to sell them next
day at the highest market rate, “ if the market was languid
and not likely to go up." The broker sold on 4th March at
17s. 6d. premium, subject to the approval of his employer,
to whom the sale was intimated. Before receiving the scrip.
holder's answer to this intimation, the broker cancelled the
bargain, and concluded a new sale on the same day, to the
same purchaser, at 20s. premium-that being shewn by the
evidence to have been the highest market rate at that hour
of the day, without any likelihood of a farther rise. The
stock, however, did rise in value that evening, and for some
months following. The scripholder having repudiated the
transaction, and refused to deliver up his scrip so as to en-
able the broker to fulfil his bargain with the purchaser-Held
that the conditional sale at 178. 6d. did not exhaust the
broker's mandate; but that the unconditional sale at 20%.
was covered by it, and was therefore binding on the scrip
holder. Henderson v. Dickson, 5th Dec. 1849, p. 57.
VOL. XXII.-No. XLII.
AGREEMENT-Non-Implement-Damages —A broker sold
fifteen shares of railway stock on 4th March. His employer
wrongfully failed to deliver his scrip so as to enable him to fulfil
his bargain with the purchaser. On 9th July, following, the
purchaser bought, at the then existing market rate, fifteen
shares of the same stock, which had greatly risen in value
during the interval, and debited the broker with the differ-
ence. The broker having paid it-Held that the full sum
so paid by him was the proper measure of damage as between
him and his employer- the purchaser having refrained from
**buying in” at an earlier period (when the stock might have
been obtained at a lower rate) at the request of the broker,
who had been induced to rely on his employer's proposals
for a compromise, Henderson v. Dickson, 5th Dec. 1849, p. 57.
ALIMENT–See Husband and Wife,
DSW Husband and Wife-Circumstances in which the Court,
in absence of the husband, awarded an aliment of £30 per
annum, and £100 for bygone aliment, to a wife living sepa-
rately from her husband. Harper or Macnaughton , Mac-
naughton, 13th Feb. 1850, p. 250.
ALTERATION OF SUCCESSION-See Entail.
AMENDMENT OF LIBEL-See Process. 10bution toidy
pee entaula id cont ind
2. Process- A woman raised an action in her individual
10 character. While the suit was pending, she obtained her-
to self decerned and confirmed executrix of her deceased hus-
band-Held (by the Lord Ordinary, and acquiesced in) that
To she could not, by way of amendment of her libel, introduce
"therein a new separate instance in the capacity of executrix.
Sharp or Smith v. Stoddart, 5th July 1850, p. 532.
APPEAL, LEAVE TO—See Process. 12. Jory &
APPEAL, PETITION FOR LEAVE TO_-Relevancy- A de-
fender presented a petition for leave to appeal against a
unanimous judgment finding the pursuer's case relevant, and
remitting it to the issue-clerks. The pursuer neither opposed
nor consented to the petition, Petition refused hoc statu,
with leave to apply again if the pursuer delayed to bring the
case to trial. North British Bank v. Graham, 28th May
1850, p. 416.
t o aid no mielo
ARBITRATION_See Interdict Reduc
109 Submission-Statute 8 Vict, c. 19, SS 20, 24, 35-Lands
" Clauses Consolidation Act-A railway company, and the
proprietor of lands through which the line passed, having
referred the question of compensation to arbitration, in terms
of the Lands Clauses Consolidation Act, both parties entered
into a minute of agreement prorogating the submission in-
definitely. The proprietor having died before any final de-
Scree-arbitral was pronounced: Circumstances in which-
Held, that the submission still subsisted. Caledonian Rail-
way Company v. Lockhart's Trustees, 12th Dec. 1849, p. 89.
ARRESTMENTS ON DEPENDENCE, RECAL OF_Caution
ww_In a question as to the recal, on caution, of arrestments
1 on the dependence of an action of reduction of a title to an
heritable estate, at the instance of the heir-at-law of the
granter-Observed, That the procedure adopted on a similar
application in the Bargany case-viz, of making the pursuer
find caution for any damage which might accrue from the
** maintenance of his arrestments-was specially adapted to
the circumstances of that case. Marsh 2. Miller, 24th Nov.
19 1849, p. 22.
ASSIGNATION See Procesot tistimo add heyet
о селт едой үтірші
ASSYTHMENT-See Principal and Agent. Be ist
gaived Tid & lo 99210bai odn. Binnea coidqtroagri --
BẠNKRUPT-See Expenses. Expenses, Caution for. "Obligation.
Personal Objection. Proof 1034905's ans
- Affidavit**Account statute 2 and 3 Vict. c. 41, $ 32–
Where the affidavit of a party, claiming to vote in a seques-
tration, referred to an account containing accumulations and
deductions of interest, which, though docqueted in reference,
and attached to the affidavit, was subscribed by the deponent
only, and not by the justice of peace Held that the vote
was bad. M Cubbin . Turnbull, 21st June 1850, p. 469.
Affidavit Sequestration Statute 1 and 2 Vict. c. 41,
U S$ 3, 33–Security-A, the obligant under a cash-credit, in
which B and C were his co-obligants, and on which inhibi-
tion had been used against A, having become bankrupt, B
paid the debt, and obtained an assignation of it, and of the
ist inhibition. Thereafter, C having paid B his share of the lia-
Bibility, and got a receipt from B, claimed to vote on A's se-
questration, but in his affidavit le failed to value the security
of the, inhibition-Held that the yote was incompetent.
Hay u. Durham, 9th Feb, 1850, P. 242. lay Heids saitalange
BANKRUPT- Affidavit. Sequestration - Voucher - It was ob-
tjected to the vote of a creditor in a sequestration, who clained
on a business-aucount, that it did not credit certain sumg paid
to account by the bankrupt, for which receipts were in exist.
ence, and that, consequently, the aecount produced did nog
exhibit the true balance between the parties. Terms of an
affidavit which-Held to proceed entirely on the account
produced, and objection thereto repelled. Hay v. Durham,
9th Feb. 1850, p. 242..
Affidavit-Voucher-Bill of Exchange a Vitiation-
In a competition for the trusteeship on a bankrupt estate-
1. a vote founded on a bill, the place of payment in which
had been altered by scoring out the words in London,"
without mention thereof in gremio ; and, 2. a yote founded
on a bill, in which the syllable " teen" was added, by inter.
polation, so as to read nineteen shillings, instead of nine
t shillings Held bad... M‘Cubbin v. Turnbull, 3d, July 1850,
, P. 52 sdt det bar wodower to use on to t al
are Process In an action of constitution against a party
against whom a commission of bankrupt had been issued
in England, it was pleaded that, in the circumstances, the
proper course was to sist procedure in Scotland, until a claim
should be made by the pursuer in the English bankruptcy.
The action having been intimated to the assignees, who did
not appear-Plea repelled, and the action allowed to proceed.
Roy v. Campbell, 14th June 1850, p. 450.bro mid det
toilis Sequestration Consignation Process Sequestration
of the estates of a deceased debtor refused, in respect of con-
signation of the sum claimed by the petitioning creditor:
w and held that the latter could not uplift any part of the com
signed fund under a petition for sequestration. Rodger ,
Gellatly's Trustees, 8th June 1850, p. 436. Braco
im Sequestration Process Competition for Trustee-In
a competition for the trusteeship in a sequestration, where
the sheriff has not given any judgment on the objections, it
is competent for a party, in an appeal to the Court, to object
to the votes in favour of his competitor, and to redargue
objections to votes in his own favour, without having taken
an appeal. Hay v. Durham, 9th Feb, 1850, p. 242. d dia
Sequestration—Statute 1696, c. 5- Bill of Exchange-
| A granted his bill to B, and by him it was indorsed to C
within sixty days of B's bankruptcy. Subsequent to the
bankruptcy, A having become insolvent, C. accepted from
him a composition on the sum contained in the hill, and dis-
charged him of all liability. B's sequestration was wound
up by a composition-contraet, and the estate having been
reconveyed to him, he reduced the indorsation to C under
the act 1696, c. 5, and claimed payment from him of the whole
amount of the bill: Circumstances in which Held, that
h was not liable in payment of more than the composition Te
bfceived by himself from A. Drummonde. Watson, 29th Jan.
0:1 000, Pucap dagido a betingJon afur.totaido de
mis sequestration Trustee, Competition for Voucher-
Decree Cognitionis Causa --Statute 1695. C. 41-Grounds and
To Warrants -11eld that a decree cognitionis causa, taken in
absence against the representatives of a deceased debtor, and
at not preceded by a charge under the act 1695, was not a sufi.
cient voucher, under the bankrupt act
b to vote in a competition for the office of trustee on the seque-
trated estate of the deceased. Turnbull v. M.Naughton, Xith.
June 1850, p. 505. turpoavec
T1003 Sequestration, Recal of Caution-Held that a bank
7 rupt (the trustee and creditors not appearing) was entitled
anto oppose a petition for recal of his sequestration, without
finding caution. Hooper v. Fergusson and Co. 13th Joly 1850.
-Sequestration, Recal of—Statute 1 and 2 Vict.cl
SS 14, 21-A party who had unsuccessfully opposed Reque
i tration of the estate of a deceased, having presented apel
tion for recal, on reasons identical with those on which be
had opposed the issue of sequestration, the Lord Ordinary
repelled the same, whereupon be reclaimed; and it per
objected that the petition for recal was incompetent, 1835
much as the reasons for recal had been finally disposed of by
the interlocutor granting sequestration-Objection repelled
to but circumstances in which, recal of the sequestration refuet.
Elder v. Thomson, 12th June 1850, p. 440. L eg die
To Stamp m oucher party applying for sequestration
by the estate of a deceased, produced an account-current,
consisting chiefly of payments of cash to the deceased, vouched
by written orders, running __" Debit my account with."-
Held that, though the orders were unstamped, the account
was sufficiently vouched, to the extent of granting seques-
tration - Elder'o. Tlromson, 12th June 1850, p. 440.
BANKRUPT _Statute 1696, c. 5_Reduction Competency-
Question, Whether a reduction, under the act 1696, c. 5,
of an indorsation, as granted within sixty days of bank.
ruptcy, be competent at the instance of the bankrupt
himself, after discharge ? Drummond v. Watson, 29th Jan.
1850, p. 197.
-- Title and Interest - Persona Standi-Affidavit-Where
the affidavit of a claimant in a sequestration, produced with-
out any vouchers, bore that the bankrupt was owing him a
certain sum as the amount of a call due on railway stock,
which had been sold by the claimant to the bankrupt, but
the bankrupt having failed to register the transfer, the call
had been made by the company'on the claimant-the sheriff,
in respect of the want of vouchers, and that the narrative of
: the affidavit did not bear that any debt was as yet owing
the claimant, held that he was not entitled to vote as to the
acceptance of an offer of composition. This judgment was
allowed to become final, but the bankrupt having thereafter
applied for his discharge, the claimant objected thereto; and
having produced an extract decree obtained since the date
of the sequestration, not against the trustee, but the bank-
rupt himself, ordaining him to obtain himself registered as
proprietor of the stock in question, with expenses, together
with execution of the same-as also another affidavit for
the expenses in the action up to the date of the sequestra-
tion-pleaded, that the defect in the first affidavit was now
obviated, or, at any rate, that he was entitled to object on
the second-Held that the claimant had no persona standi
entitling him to appear to'object. Lăng v. Moore, 16th July
1850, p. 576.
Trustee Affidavit In'a competition for the trusteo-
ship on the sequestrated estate of a firm, the name of which
was also the names of the individual partners thereof, the
objection to an affidavit, that it was contradictory, inasmuch
as it bore that the company and the partners by name, " as
such partners and as individuals," were indebted to the de.
ponent, and that, notwithstanding, it proceeded to set forth
that the deponent held " no other person, company or obli-
rant, than the said” company, bound for the debt-Repelled,
in respect that the oath, in the circumstances, sufficiently
set forth that the individnals were bound for the debt. Mac-
Cubbin v. Turnbull, 3d July 1850, p. 523."
-- Trustce, Competition for-Affidavit-In a competition
for the trusteeship on a sequestrated estate, a party intend.
ing to object to the vote of Colin B. and Co., merchants in
Huddersfield, lodged an objection to the vote of John B. and
Co., and the sheriff repelled the objection simpliciter. Held
that the objector was not entitled to object, on appeal, to the
vote of Colin B. and Co., more especially as, among the claim.
ants, was a firm of J. B. and Co., merchants in Manchester.
M‘Cubbin v. Turnbull, 3d July 1850, p. 523.
Voucher-Proof-A party applying for sequestration
of the estate of a deceased, produced an account-current, in
which he credited the deceased with the balance of another
account-Held that the credit did not require to be vouched.
Elder v. Thomson, 12th June 1850, p. 440.
Writer's Hypothec - Security - Affidavit - Question,
Whether a writer's hypothec requires to be stated as a secu-
rity, in the affidavit of a party applying for sequestration of
the estate of a party deceased? Elder v. Thomson, 12th June
1850, p. 440.
BILL OF EXCEPTIONS_See Expenses. Jury Cause.
Where, in a bill of exceptions, the Court sustain one of
the exceptions and allow a new trial, their Lordships will
not determine the validity of the remaining exceptions.
Melrose and Co. v. Hastie and Co. 1st Feb. 1850, p. 207.
BILL OF EXCHANGE-See Bankrupt. Title to Sue.
- Agreement-Proof, Parole--A accepted a promissory.
note for the accommodation of B, who placed it in the hands
of his bankers. It was averred that this depositation was
inerely for discount, and not as a security to the bank for
their general dealings with B. In a suspension at the in-
stance of a charge given by the bank-Held incompetent to
bl prove the above averment by parole evidence, Glen v.
Is National Bank of Scotland, 8th Dec, 1849, p. 79.
BILL OF EXCHANGE Construction - Compensation - A
firm in Huddersfield drew a bill upon their debtor in Glas-
Legow, and transmitted the bill duly accepted and blank in-
sudorsed to a broker in Liverpool, for the purpose of discount
-7 in Glasgow, The broker transmitted the bill to a bank in
D Glasgow with the following letter :- The enclosed has been
119 sent me from Huddersfield, to send to Glasgow for discount ;
ar and if you can do it for me on moderate terms, it will oblige.
BY I have not indorsed it, but I will guarantee my liability the
same as I had put my name to it." The bank having re-
aceived payment from the acceptors-Held liable for the pro-
ceeds to the drawers; and not entitled, under the terms of
the broker's letter, to deal with the bill as his property, and
to set off the proceeds against a debt due by him to them.
To Farrar and Rooth y. North British Bank, 6th July 1850, p. 535.
sasa , Foreign-Proof-Writ or Oath --An English firm em-
sployed an agent in Glasgow to sell their goods on commis-
sion. In the course of their dealings with him, they drew a
bill upon him, which he accepted payable in England, and
which they indorsed to their bankers there. In a charge at
Set the banker's instance on the bill-Held that the place of
- Tepayment did not render it an English bill, to the effect of
enabling the acceptor to prove, otherwise than by writ or
18 oath, that the bankers were merely interposed agents for
* the drawers, whom he alleged to be his debtors. Strathern
10. Masterton and Company, 25th June 1850, p. 483.
- Novation_Delegation-Sequestration-Statute 2 and
3 yict. c. 41, § 119-A and B granted an acceptance to C
- for £200, which was retired by payment of £40, and the
granting of a promissory-note for £160. A having been
b sequestrated, entered C in his state of affairs as a creditor
bofor £200, and was thereafter discharged on a composition.
- Meantime, the promissory note having become due, C drew
od another bill on B for £150, which he subsequently retired
V himself. B having afterwards been sequestrated, c lodged a
claim on his estate, founding on the £150 bill, in which he
deponed that he held no other person bound for the debt,
&D and no security for the same. Thereafter, having raised an
action against A and his cautioner for the amount of com-
position on £160, as a debt due and owing by him at the date
B of his sequestration, and they having pleaded, that A's ac-
bo ceptance to the £160 bill was a forgery; that the substitu-
- tion of the £150 bill for the former bills extinguished the
-debt by novation and delegation; and that the pursuer's
claim was excluded by the terms of his deposition in claim-
ing on B's estate, and by his having transacted separately
with, and given time to, the debtor: Circumstances in
which-Held, that whether the last promissory-note was
I forged or not, A was liable under his former acceptance, and
in virtue of the entry in his state of affairs. M Lennan v.
on Fraser, 4th Dec. 1849, p. 49. Tam
Take Onerosity_Suspension-In a suspension of a bill of ex-
99 change, on the ground that it was the renewal of a £70 bill,
s granted in consideration of a loan of £35, and that £10 was
of charged for the renewal, by the borrower, who was of full
Yoage when the transaction was entered into the suspender
prayed the Court to pass the note, for the purpose of making
inquiry. Note refused. Wedderburn v. Joel, 27th Nov.
1849, p. 28.
- Prescription, Sexennial-The indorsee of a bill having
brought an action of payment, within the six years of pre-
scription, against the acceptor, and obtained decree, the lat-
ter made payment, and the indorsee granted an assignation
in favour of a party on account of the acceptor, who, after
the lapse of the six years, instituted an action against the
drawer, as the true debtor: Circumstances in which-Held,
that the action was not barred by the sexennial limitation.
Roy v. Campbell, 14th June 1850, p. 450.40
- The granter of a promissory-note suspended a charge upon
it on the ground—1st, that it was granted without value
for the charger's accommodation ; 2d, that the charger was
barred by his acceptance of a composition on all debts due
by the suspender. The charger denied that the note had
been granted for his accommodation, and admitted that he
had signed the composition contract, but only on condition
of its acceptance by the suspender's other creditors, who had
pot acceded to it--Held that both grounds of suspension
could be instructed only by the suspender's writ or oath. cancelled the same; and he having farther refused to learl
Connals v. Stalker, 24th Nov. 1849, p. 25. 1o froitas odi to
additional proof, found him guilty, and pronounced sentence
BILL OF EXCHANGE-Stamp-Proof-A bankrupt, in his of deposition. In a reduction, at the instance of the school,
list of debts, stated A to be his creditor by a certain specified master, on the ground that it was incompetent for the pres.
bill. The bill being unstamped-Held that there was no evi. bytery to cancel their own proceedings, and to try him a
dence of the debt. Ogilvie and Son ». Taylor, 7th Dec. 1849, second time—that the evidence of certain of his witnesses
Op. 75. Sid: 195 Tardoid to do so adian teda
had been cancelled, which evidence it was impossible for
for Summary Diligence_Foreign-Grounds and Warrants · him to replace and that certain members of presbytery were
Process_A domiciled Scotsman, during a temporary resi disqualified from judging in the case, by reason of agency:
dence in London, accepted a bill payable there, and drawn Circumstances in which-Reasons of reduction repelled.
upon him by an Englishman _Held that the bill was a good Fergusson v. Skirving and others, 26th June 1850, p. 498.
to warrant for summary diligence in Scotland. Doni v. Kealy, CITATION-See Process. 1 und
2 D VI
30th May 1850, p. 417. 1901 od 9 dotdw dgrudnia CLAUSE_See Agreement. Construction, Croun. Entail Fee
90 9 Summary Diligence Proof_Grounds and Warrants
Landlord and I'enant, Poor-law., Statute 3 and 4 Will. IV.
11. A bill of exchange vitiated in the date, rejected as a 6. 46. Superior and Vassal Testament. Trust. "Vesting.
ground of summary diligence. 2. Held incompetent to cure
Construotions Intention-Mortis Causa Settlement-
the defect by parole evidence. M'Rostie v. Halley, 2d March ai A testator appointed his trustees, after certain special be-
1850, p. 358.290 R OT- Jag 8 - 9
--quests, to make payment of the interest of £6000 sterling
MORE Writ __Summary Diligence-1 Vitiation - A bill of ex ( to my sister during all the days of her life, in the event of
change found torn in three pieces in the repositories of the her surviving me ..... and to place at interest, in the
creditor, held insufficient as a ground of summary diligence. public funds, or with adequate security, £6000 sterling for
Thomson v. Bell, 5th July 1850, p. 534. OS ,281 vom
this purpose, and to account for the whole residue,
BOND_See Delivery. W baie morbida - IOTAHUN s if any, to A, B, and C.” The testator's sister survived him
BOTTOMRY1 See Insurance, Maritime. O&TI Isurde der
for several years, and received nothing during her lifetime
BOTTOMRY AND RESPONDENTIA See Ship ai balist but a very inadequate substitute for her appuity under her
BOUNDING CHARTER See Feudal. dto anoterabadt 9. brother's settlement. In a competition between her ese-
BURGH_See Title to pursue. boilqqu dotard ytatasadad
cutors and the residuary legatees, arising from there not be-
BURSARY__See Testament. big mod noowaad gadus
eing trust-funds enough to make good to the executors the
bir boyuB Vlooimassa sada od Javi b9149
u arrears of an annuity answering to a capital sum of £6000
Held,, under & reference to the clauses of the deed, that
CALLS, NOTICE OF_See Railway. i 1 0.2000 in 1o, the annuity was to be satisfied, preferably to the residuary
CAUTION-See Arrestments on Dependence, Recal of. Bankrupt. 1 bequests, out of the capital of the trust-estate, so far as it
would go for that purpose. Berry's Trustees o. Cox's Tras-
- JURATORY_See Removing.
tees, 18th June 1850, p. 455. isi
CAUTIONER-See Judicial Factor, Removal of.
Construction +Turnpike Açt-Held, upon the construc-
CESSIO—Suspension--A debtor who had obtained a decree of ition of certain local road acts, empowering turnpike-road
cessío, suspended a charge upon debts acquired prior to the trustees "to make and alter, widen, improve, repair and
decree, on the ground that property admittedly received for maintain," certain statute-labour roads " as turnpike roads,"
!'his behoof by the trustee under the cessio, before becoming that the extension of their breadth to the minimum of twenty
trustee, had not been accounted for-Charge suspended, for feet required by the General Turnpike Act was not a con-
the purpose of investigation. Smith v. M'Intosh, 11th Dec. 1. dition precedent to the trustees' right to levy toll—the trus
1849, p. 82.
ttees having assumed these, roads as turnpike-roads mider
CHARGE-See Diligence, beautifu l l mill-
is v their management Macintosh v. Trustees of West Stirling.
CHURCH-See Summons. Jull
i mi me
To shire Tumpike-Roads, 22d Nov, 1849, p. 14. bre to
- Glebe, Designation of_Process In a suspension of a CLERICAL ERROR_See Writ. 2 dy vi bre modif
decree of designation of a glebe, the Court remitted to the COMMISSION -See Trust.
presbytery to reconsider the matter, with power to adhere COMMISSION AND DILIGENCE FOR RECOVERY OF
to the designation already made, or to make a new one. , WRITINGS See Process.
TO A Bola
Campbell and others v. Morgan and the Presbytery of Ler. COMMISSION AND FACTORY-See Title to Sue, en tok
swick, 17th July 1850, p. 583. I SITDA 052 PDAME COMMONTY—See Feudal.
- Process- Record of Presbytery, Authentication of COMPANIES CLAUSES ACT-See Judicial Factor. Jury
Statutes 1686, c. 3; 43 Geo. III. e. 64In a reduction, at Cause, Proof. Railway. 2012 Ez Jagoose ein
the instance of a schoolmaster, of a sentence of deposition COMPARATIO LITERARUM-See Proof, at
pronounced against him by the presbytery, on the ground
OMPENSATIO INJURIARUM- In an action of damages in
fo that the interloentor of relevancy and allowing a 'proof a assault and defamation, the defender craved a counter issue-
deliverance ordering certain portions of the proceedings to whether, a month before the facts set forth in the sumnsons,
24 be cancelled, in respect of a judgment of the Court of Session the pursuer had published a calumpious newspaper article.
Il in a suspension of the same, at the instance of the pursuer— to his (the defender's) loss, injury, and damage Held (by 9
(st and the judgment finding him guilty, and sentence of de 09 majority of the whole judges) that the counter issue mus
position following thereon were not legally authenticated be disallowed; and that the defender must bring a separate
sliby the signatures of the moderators of the meetings of pres action. Opinion, That the issue in the counter action ought
91 bytery, at which the same were pronounced: Circumstances to be tried before the same jury. Tullis v. Crichton, sth
50 in which, on a report as to the practice of church courts ni March 1850, p. 379. his hivaji MLL Naob
22 Reasons of reduction repelled. Fergusson o. Skirving and COMPENSATION-See Bill of Exchange. Novation. Raluray.
Tuothers, 26th June 1850, p. 493. ELKITS ynty
COMPETENCY--See Advocation, Bankrupt. Disentail Erdal
Record of Presbytery, Cancellation of A libel having vi Jurisdiction, Obligation. Pelition, Summary Process Proof
or been raised before a presbytery, against a schoolmaster, after Public. Segriestration. Summons. art.vtirsinnas, be
15 the proof for the prosecution was closed, and the exculpatory | COMPETITION--Multiplepoinding Riding Interest - Title
ad proof partly led, the schoolmaster suspended on the ground # to Pursųe—Process-A party, died in Jamaica, leaving a will
that access to the proof had been denied him. The Lord 1 by which he appointed two executors, one of whom was resi
Ordinary granted interim-interdict against the respondents H dent there. The other having made up titles in Scotland,
pronouncing any ultimate sentence of deposition, but the 18 he raised a multiplepoinding with regard to certain funds or
presbytery proceeded in the cause, to the leffect of finding for the deceased, in which process a party appeared and claimed
the schoolmaster guilty. Subsequently, on their giving in 4 tu as on a riding interest, in respect that he was heir
a minute consenting that all proceedings, subsequent to the Hunearest of kip to a party with whose effects the deceased, in
9 date of the refusal of access, should be held as cancelled, un *» name of executor, had unlawfully intromitted. The exeru.
-97der a reservation to proceed with the case de novo as from en stor, not admitting the claimant's statement Objeder hat
of that date, the Court recalled the interdict. Thereupon the te as the claim was not constituted, it could not be admitted
o presbytery, the schoolmaster having refused to say whether hin the competition as a riding interest. Objection sustained
5 he wished the proceedings in question cancelled or not, and claim repelled, Stevenson « Geddes, All Dec. 1849, p. 31
COMPETITION FOR TRUSTEE_ See Bankrupt..." ,
COMPLETING TITLES See Title to Sue, oh
COMPULSORY POWERSSee Railwdy, niin towali
CONSIGNATION_See Bankrupt.NET T V
CONSTRUCTION–See Agreement. Bill of Exchange. Clause.
91 Crown. Decree-Arbitral. Destination. Entail. Entail Amendment
Act (1848). Fee. Landlord and Tenant. Lease. Lis Alibi Pen-
dens. Partnership. Poor-Law. Poor-Law Amendment Act(1845).
Prescription, Triennial. Railway Statute. Statute 3 and 4 Will.
IV. c. 46. Superior and Vassal. Testament. Title to Sue and
Defend. Trust. Trust-Conveyance. Vesting. "
Clause Trust-Deed and Settlement.A trust-disposition and settlement declared, that, after the purposes were satisfied, the trusteeg should convey the residue of the estate to the truster's brother, "in the event of his
arriving at a sound state of mind, so as to be able to malo nage his own affairs, or failing that event happening, then an to" W. P. The purposes of the trust having been satisfied, Tofand the truster's brother still remaining insanelin à com
petition between 'W. P. and the curator of the lunaticTerms of a settlement under which-Held, that the residue
fell to be conveyed to W. P. Dron's Trustees v. Condie, 1915th March 1850, p. 357. S$ 19. Verdict-In an action against underwriters, the issue
sent to 'trial was, whether there had been a total loss, and on whether the insured value was due to the pursuers. The
pursuers had a verdict, with leave to enter it up for the deJu fenders if the Court should decide that the pursuers were
barred from recovering as for a total loss, in consequence of Ji abandonment having been necessary, and not having been
made in due time, or of the pursuers having elected to treat
the case as one of partial loss. The Court entered up the Hverdict for the defenders. Opinion, That, by doing so, they De not only held the pursuers barred from recovery, but also b that they thereby decided that no total loss had taken place.
Smith o. Fleming and Co: 20th Nov. 1849, p. 7. Dan CONTRACT–See Agreement. Interdict. Lease.Tut.Oni sud) 099 2. Pactum Illicitum---Principal and Agent-A, an English Battorney, entered into an agreement with B, to the effect, 19that A should raise and carry on an action for recovery of
an estate in Scotland, to which B claimed right, at A's own charges, and that, in the event of his securing the estate for B, “then and in such case, but not otherwise," B should pay A not only all the costs and charges incurred by him, but a certain proportional sum'in addition. The suit having
failed, A brought an action against B, libelling on an account - for business on B's employment, and for his behoof, pleading,
that the agreement between them was pactum illicitum-Held, that as the professional services and outlay, in respect of which the account was sued for, proceeded solely on the
agreement, the pursuer was not entitled to maintain that he 10 was employed on a footing inconsistent with it; and defen
der assoilzied. 'Bolden'v. Fogo, 27th Feb. 1850, p. 341/3 CONTRACT OF MARRIAGESee Vesting. Toru s odtedw CONVEYANCE_See Personal Exception. Warrandice.ua eri COPARTNERY_See Proof.- (Hol (a'nabastab oda) aid out SALAT Possession-Pawn broking Act_$tatute 39 and 40 Geo.
III. C. 99 — ProcessH and DŇ entered into a contract of 3d copartnery for carrying on the business of pawnbroking, but
in the name, and under the management, of the latter alone. On the death of D M, his widow and executrix continued in possession ; but the deceased's estate having been seques
trated, I applied for and obtained authority from the sheriff oto enter into possession, and wind up the business, which he
did. Subsequently, the cautioner for a cash-credit which D M had obtained in his own name, raised an action of relief against H, and the deceased's trustee, on the ground that a the credit must be held to have been given to the pawn
broking company. The defenders were found liable, and H 10 paid the debt. Thereafter, the deceased's'trustele raised an Fraction of reduction of the contract of copartnery, on the a ground of contravention of the Pawnbroking Act, and of
count and teckoning against H. The contract having been
reduced, the trustee, in the count and reckoning, claimed 35 from # the full amount realized by him in winding up the
business, without any deduction. He having admitted that he he was bound to pay the amount realized, vinder certain de
eductions : Circumstances in whichi-Held, that He was en.
titled to deduct the sum paid to the cautioner, with expenses of the action of relief on both sides. Gordon v. Howden, 5th
December 1849, p. 53. COUNSEL-See Expenses. COUNSEL AND AGENT–See Expenses. CROWN-Edinburgh Police Act--Clause--Construction-Held,
that as the police act of Edinburgh, under which a police assessment is imposed on the occupancy of buildings within the police limits, contains no express enactment for imposing
police tax on occupation, using or possessing, for her Majesty's ı use, or on property of her Majesty, or on property used for
her Majesty, the buildings used as the General Post-Office of Edinburgh, which are the property of her Majesty, and oc
cupied exclusively for the purposes of the post-office, were - not liable in assessment. Queen v. Police Commissioners of
Edinburgh, 22d Jan. 1850, (Exchequer), p. 145. CULPA-See Reparation.
- Trustee-Law-Agent-Circumstances in which the sole suurvivor of certain trustees, being the factor and law-agent for the trust, was held liable to make good a portion of the trust funds lost by his neglect. Christy v. Thomson, 23d
Nov. 1849, p. 20. CURATOR-Lunatic-Guardian and Ward-Act of Sederunt
13th February 1730-Expenses—The curator of a lunatic failed, in the management of his ward's estate, to observe the directions of the act of sederunt. After his death, his testamentary trustees applied for his exoneration. In an accounting between them and his successor in office, it appeared that the estate had been judiciously managed, and that the funds had been materially increased in the course of management. Held, in the circumstances, 1. That only one-half of the usual commission should be allowed. 2. That the estate of the curator was liable in all expenses beyond
those strictly necessary for an ordinary audit and exonera• tion. Kerr's Trustees v. Moody, 19th June 1850, p. 457. CURATOR BONIS- See Expenses. Parent and Child,
Heritable Security - Opinion, That a curator bonis who is authorized by the Court "to borrow money upon the security of the estate of his ward, and to grant the proper securities therefor," is not entitled to grant a bond and disposition in security containing a power of sale. Stewart v. Kirkaldy, 13th Nov. 1849, p. 1.
- 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 Walker or Ferguson, and others, petitioners, 16th Nov. 1849, p. 2.
DAMAGES-See Agreement. Principal and Agent, Reparation,
Summons. DANGER TO LIFE-See Diligence. DECLARATOR, COMPETENCY OF-See Jurisdiction, DECLARATOR OF BASTARDY- See Proof. .. DECREE ARBITRAL-Reference-Construction Suspension
It was provided in a lease of coal, that any dispute between the parties, in any manner of way relating to the premises, - should be referred "from time to time, as the same shall
arise," to an arbiter named. The tenant having applied to the landlord for leave to sink a new pit, which was refused, he applied to the arbiter for authority to do so, and for damages on account of the loss arising from his landlord's re
fusal. The arbiter issued an interim-decree granting the · authority claimed, and awarding a sun of danıages for loss
suffered up to a certain date. Thereafter, the tenant having · lodged a further claim for damages suffered subsequent to
that date, the landlord suspended, on the ground that the whole question of damages was exhausted, and the arbiter functus by the decree, formerly pronounced. Terms of writs, and circumstances in which-Note refused. Montgomery v.
Carrick and Napier, 8th Dec. 1849, p. 79. DECREE COGNITIONIS CAUSA-See Bankrupt. DEFENDER'S RIGHT TO BE ASSOILZIEDSee Proof. DELEGATION--See Bill of Exchange. DELIVERY See Sale! uw Bond - Agent and Principal-Implied Mandate Preusumption--A, a writer, entered into a missive with B, where
by he agreed to feu certain stances for building, and also to 1. procure the sum of £900, payable in certain instalments, to
be lent to B on the security of the subjects. Having there