after been entrusted by C and D with £900, to be invested
thereon, he made advances to B, as stipulated, to the amount
of £699, and obtained from him an heritable bond over the
subjects, in favour of C and D, for £900, in return for which
A granted B a letter to the effect that only £699 had been
advanced to account of the bond. A having died with B's
bond in his hands, C and D obtained possession of it, and
obtained themselves infeft; whereupon B raised an action
against them, concluding alternatively for payment of the
balance of £231, or for reduction of the bond and infeftment
to the extent of the balance. Circumstances in which the
Court reduced in terms of the summons. Mair and Son v.
Thoms' and Jobson's Trustees, 20th Feb. 1850, p. 259.
DESIGNATION-In a suspension and interdict at the instance

of certain parties as "members of the committee of the ten-
antry of East Lothian," the Court ordered this designation
to be struck out of the record. Mylne and others v. Horne
and others, 8th March 1850, p. 372.
DESTINATION--Fee and Liferent--Warrandice--Succession--
Construction-Entail-Lands belonging to a married woman
were settled by her upon herself, her husband, and the survivor,
whom failing, in favour of A, and his heirs whatsoever. The
deed reserved a power of revocation and alteration in favour
of the spouses, and the survivor. In a second deed, they
altered the destination by calling the heirs of A's body, and
certain other heirs, in place of his heirs whatsoever. The
second deed did not contain a renewal of the power of altera-
tion, but confirmed the former deed, except in so far as
altered. Held, 1. That the surviving husband was absolute
fiar. 2. That the power of alteration contained in the first
deed was not exhausted by its exercise in the second. 3.
That a disposition of the estate by the surviving husband,
in favour of himself and his heirs whatsoever, was within the
powers conferred upon him by the two deeds, and was, there-
fore, not reducible at the instance of an heir called under
the second destination, 4. That a clause of warrandice in
the second deed did not alter the character or extent of the
grant in favour of the heirs thereby called, but merely war..
ranted the deed as it stood-the husband being truly a cre-
ditor under this clause, which ran in the wife's name alone
as granter. 5. That a bequest of £8000 in the husband's
favour, as a burden upon the estate, in the second deed, did
1 not bar the foregoing construction, but was to be considered
as provided with a view to the contingency of his losing, by
predecease, the rights and powers given to the survivor.
Glendonwyn or Scott v. Maxwell, 22d May 1850, p. 408,
DILIGENCE-Charge-Suspension and Liberation-Process-
A decision having been pronounced in favour of the pursuer
of an action in the Sheriff-Court, and the defender having
consigned the principal sum sued for, decree was given for
the expenses, to be extracted in name of the agent, and there-
after an interlocutor was pronounced authorizing payment
to the pursuer out of the sum consigned. This payment was
made, and a charge, at the instance of the pursuer and her
agent, was given for the expenses. A suspension was brought
on the ground that the charge ought to have been in the
agent's name alone; that while the charge bore that the de-
cree was at the instance of the pursuer, the charge itself was
likewise in the agent's name; and that the date of the de-
cree in favour of the agent was omitted in the charge. Note
refused. Campbell v. Turner or Cassils, 24th Nov. 1849, p. 27.

Grounds and Warrants Interdict-Nobile Officium-
Danger to Life--The Court being satisfied, by medical evi-
dence, that ultimate diligence could not be executed against
the person of a debtor, without endangering his life, granted
interdict against the use of any caption or warrant of impri-
sonment the diligence being allowed to proceed against
the debtor's effects... Johnstone v. Glen, 9th March 1850,
p. 391.

DILIGENCE AGAINST HAVERS-See Process.
DISCHARGE, PRESUMED-Executor-Process-A party hav-
ing left a will containing directions to purchase lands, and
entail them under a certain destination, his executors paid
to the first beneficiary, one of their number, the proceeds
accruing from the funds during the first year after the tes-
tator's death. Subsequently, one of the executors having
died, his representative obtained decree in an action of mul-
tiplepoinding and exoneration, in which all the executors,
as well as the second beneficiary, were called, though the
latter did not appear. On the death of the first beneficiary,

it having been decided that the executors of the testator,
and of the first beneficiary, were liable to the second in re-
payment of the proceeds of the first year-Held that, failing
a reduction of the decree, the second beneficiary, by permit
ting exoneration of one executor, had, to the extent of his
share, discharged his co-executors. Macpherson e. Macpher-
son, 14th Dec. 1849, p. 103.
DISENTAIL-See Entail.

Act of Sederunt 18th November 1838-Process-In a
petition for disentail, the deed of consent, executed by one
of the heirs substitute, did not bear that he was upwards
of 25 years of age, as required by the act of sederant.
Sufficient evidence was produced of the fact that he was so.
The Court, nevertheless, superseded consideration of the
petition until a deed of consent, in conformity with the act
of sederunt, should be executed. Smollett, petitioner, 26th
Feb. 1850, p. 334.

Consent Statute 11 and 12 Vict. e. 36-In an appli-
cation for disentail, the deed of consent did not specially set
forth, in terms of the schedule annexed to the act of sede-
runt regulating the forms of consent, that the next heir (who
was in Australia) was 25 years of age, but only that he was
of full age. The petition stated that he was 25, and the
fact was instructed by a certificate from the parochial regis
ter, and relative affidavit produced. Deed of consent sus-
tained. Cuninghame, petitioner, 19th Feb. 1850, p. 258.

Notary Statute 6 Geo, IV. c. 87, § 20-An instrument
of disentail by an heir of entail residing out of Britain, may
be competently executed before one of Her Majesty's Con-
snls, as notary-public. Cuninghame, petitioner, 19th Feb.
1850, p. 258.

Process Statute 11 and 12 Vict. c, 36Opinion of the
Court, That where an heir of entail in possession has died
before carrying out the steps necessary for a disentail, under
an application made in terms of the statute 11 and 12 Vict.
c. 36, it is not competent for the heirs

in his room, and to take up, and cceeding, to be sisted

the application of the previous heir.
July 1850, p. 575. 1-monson

ont to completion.
Scott, petitioner, 16th

Statute 11 and 12 Vict. c. 36 Husband and Wife-
Petition-Competency-Process Terms of an antenuptial
contract of marriage, containing renunciation of the jus
mariti and right of administration, in reference to which—
Held, that a petition for disentail under the recent act 11
and 12 Vict. c. 36, by a wife, as heiress of entail in posses
sion, without concurrence of her husband, who was abroad,
was competent-a curator ad litem having been appointed;
and that the petitioner could, in her own name, validly sub-
scribe the instrument of disentail. Primrose, petitioner, 7th
Feb. 1850, p. 240.

Statute 11 and 12 Vict. c. 86, § 6-Provisions to Chil
dren-In an application for disentail by a married woman,
whose contract of marriage contained an obligation to grant
a provision in favour of the younger children to be born of
the marriage, but where no children existed: Circumstances
in which-Held, that though the petitioner's affidavit made
no mention of this obligation, there was a sufficient compli-
ance with the statute, and that it was not necessary that
any provision should be made for children nascituri. Prim-
rose, petitioner, 7th Feb. 1850, p. 240.
DISPOSITION, EX FACIE ABSOLUTE See Feu-Right.
DIVISION OF COMMONTY-See Proof, Title.

Proof-Servitude-Process-In a process of division of
commonty, certain lands were claimed by two proprietors
in certain proportions, agreed on between them, as their
'exclusive property. A claim of common property in this
land was also made by M-Held, 1. That his titles and the
proof limited his right to a mere right of servitude. 2 That
the lands fell, therefore, to be struck out of the division. &
That his claim of servitude, and the proof applicable to it.
could not receive effect in the process of division, but must
be made the subject of a separate action of declarator. Gor
don of Cluny v. Grant of Monymusk and others, 28th Nov.
1849, p. 171.

Title to Sue-Title to Exclude In a division of com-
monty, a proprietor claimed to have certain portions of the
land struck out of the division as his own exclusive property

Held that an opposing proprietor, the sole competitor as
to these lands, and whose right was merely that of servitude,
had no title to state objections against this exclusive claim.

28th

Gordon of Cluny, e. Grant of Monymusk and others, Nov. 1849, p. 171e sid., dorsa enbudsgrad tell wit DIVORCE See Process. DOMICILE—— Legacy and Residue Duties— A testator, whose domicile of origin was in Scotland, entered the royal navy at the age of thirteen, continued in active service for fifteen years, and then went on half-pay (about £90), which he continued to draw till his death. By the half-pay regulations, A the officer receiving it is required at all times to be ready to obey the orders of the Admiralty, give notice of his place of of the Ad habitation, reside where directed, and not be absent from the kingdom without leave. The testator lived in lodgings in Jersey five or six years after retiring from active service, and then went, taking his wife with him, to Tortola, Virgin Islands, West Indies, as a stipendiary magistrate, appointed under the authority of the statute 3 and 4 Gul. IV. c. 73, for the abolition of slavery. His wife died there, and after a five years residence in that colony, he came to Scotland on a temporary visit, and married a second wife. He never had a dwelling-house in Scotland. In the course of returning to Tortola with his second wife, he died at St. Kitts, about six years after receiving the appointment of stipendiary magistrate. He also was president and senior member of council of the Virgin Islands, having previously been a member of council. No salaries are attached to these offices. The appointment of stipendiary magistrate is made by the government of Great Britain, and is subject to the control and direction of the colonial secretary; and the salary (£300) is paid from the revenues of Great Britian. Held that the testator, at the time of his death, was domiciled at Tortola, and, consequently, that his executors were not liable for legacy or residue duties upon his estate. Queen v. William Gordon, 4th Feb. 1850, (Exchequer), p. 233.11 19 te vil a STVÁ DONATION See Proof

31.181 941 Eran sa gon' EDINBURGH POLICE ACT-See Crown. ENTAIL See Destination, Process

Clause-Construction-Under an entail with the usual fetters, containing a destination to the entailer's second son, and the heirs of his body, whom failing, to certain substitutes, and the heirs of their bodies respectively, by which it was provided, that in case any of the heirs mentioned should have grandchildren, who, or either of them, should succeed under the entail, the said grandchild or grandchildren, and their fan descendants, should be freed from the fetters of the entail— the granddaughter of the second son made up titles to the estate, omitting the fetters of the entail, and referring to the clause of exemption therein contained; and the great-grandson of one of the substitutes succeeded to her under the destinadid not revive against

tion. Held that the fetters of the entail 1850, p. 59752

him. Miln Miln and others, 19th

Clause-Construction Provisions to Children-An entail enabled the heir in possession to grant certain provisions in favour of the children of an "eldest son." The destination called the second son to succeed in a certain event which happened-Held that a provision in favour of the children of that second son was a lawful exercise of the power. Erskine, petitioner, 2d Feb, 1850, p. 230.

Clause-Construction Provisions to Children-An heiress of entail succeeded under a deed reserving to her "full liberty and power, in case she shall happen to marry a second husband, and to the whole other heirs of tailzie hereby called to the succession, and who shall succeed to the said lands and testate in virtue of this present tailzie, to provide their younger children, besides the heir, in provisions which together shall not exceed three years' free rent." She granted bonds of ta provision in favour of her younger children before the date of Lord Aberdeen's Act (5 Geo. IV. c. 87), and never contracted a second marriage. Held that the bonds were invalid, the event in which she was entitled to grant such proviTosion-viz. a second marriage had not taken place. Maitland or Stirling . Gibson, 22d Dec. 1849, p. 219, Clause-Construction-Statute 5 Geo. IV. c. 87-Aberand on a construction of

deen

Act-Circumstances the Aberdeen Act-Held, that the the 4th and 9th sections three years' rent which heirs of entail are entitled to settle as a 2 provision in favour of younger children, was the rent accruing oboduring the three years immediately following the death of the arisgranter of a bond of provision; and, consequently, that, in the

circumstances, a a bond granted under the act was ineffectual where, under a special clause to that effect in the entail, and relative marriage-contract on which the entail proceeded, the estate did not immediately come into possession of the next heir at the granter's death, but into that of a liferenter who drew the rents, and whose liferent endured for more than three years, so as to absorb entirely the rents out of which the provision was payable. Maitland or Stirling v. Gibson, 22d Dec. 1849, p. 219. ENTAIL-Disentail-Statutes 11 and 12 Vict. c. 36, §§ 13, 16, 18; 10 Geo. III. c. 51, § 10; 5 Geo. IV. c. 87-In a petition under the Entail Amendment Act, to charge an entailed estate with sums laid out on improvements-Held that the amount with which it was competent so to charge the estate, in terms of the Montgomery Act, was the amount of four years' free rental, under the burdens in existence at the date of the application, without consideration of any provisions with which the heir in possession night subsequently charge the estate under the Aberdeen Act. The Baroness Keith and Nairne, petitioner, 9th July 1850, p. 536.

Entailer's Debt-Competition-A, an heir of entail in possession, obtained a private act of parliament for the sale of the estate for payment of the entailer's debts, (for which decree had been obtained against the estate), under the provision that, until the sale was made, any heir in possession should be entitled to all the powers competent to an heir in possession. No sale having been effected, A granted a disposition to B and C, the next heirs, of his liferent interest, under the real burden of an annuity to himself. Thereafter C, with concurrence of B, granted to D a bond and disposition in security over the estate so far as his life interest extended, in which D was infeft. Subsequently B granted to C a disposition of his life interest in the estate, whether under A's disposition, or as next heir, under burden of A's annuity. A and B having died-in a competition to be preferred on the rents since C's succession as heir in possession, between D, who claimed the arrears of interest on his bond since C's succession, and A's executors, claiming interest advanced by them, since C's succession, on the entailer's debts, and also arrears of the annuity provided to A-Held that D's claim was preferable. Riddell and others v. Scott and others, 9th March 1850, p. 387.

Expenses-Interest-Interest allowed on the expenses of obtaining and carrying into execution a private statute, for the sale of entailed lands, for payment of debt. Maxwell, petitioner, 6th March 1850, p. 362.

Fetters-Clause-Construction-Sale-Statute II and 12 Vict. c. 36, § 43-Terms of a deed of entail under whichHeld that the prohibition against sales and alienations was not fenced by either an irritant or a resolutive clause; and that the prohibition against contracting debts was not fenced by an irritant clause; and the entail declared invalid accordingly. Baillie v. Baillie, 12th July 1850, p. 554.

Improvements-Construction-Held that a sum of money expended by an heir of entail in possession, for embankments and caul-dykes on the river Clyde, which flowed past his lands, was chargeable on the fee and rents of the estate under the Entail Amendment Act-there being a report by men of skill to the effect that the operations in question were necessary for the drainage of the estate. Baillie, petitioner, 17th July 1850, p. 582.

་་་

Preferable Debt-Montgomery Act-Statute 10 Geo. III. c. 51, § 15—Competition - Question, Whether the assignee to a decree of declarator of improvements at the instance of the heir of entail who expended the money, is entitled to be preferred to the creditors of the heir succeeding to him; or whether, to obtain this preference, he must not take decree against the heir so succeeding? Riddell and others v. Scott and others, 9th March 1850, p. 387.

Prohibitory Clause-Construction-Alteration of Succession-Sale-Suspension-An entail contained the following prohibitory clause:-"It shall be noways in the power of, or leisome and lawful to me, or to any of the heirs or substitutes whatsomever, to alienate, dispone, or sell, or wadset, all or any part of the said lands, or to burden the same, or contract debts thereupon, or do any other deed whereby the same, or any part thereof, may be apprized, adjudged, or otherwise evicted, in prejudice of any other heirs-substitute." Held that the clause was unavailing to prevent an alteration of the succession. Elphinstone v. Burnett, 6th March 1850, p. 368, Statute 11 and 12 Vict. c, 36; § 25-Where provisions

are secured over a particular portion of an entailed estate, it
is not necessary, in selling land for the purpose of discharging
the same, to sell the particular portion so burdened. Erskine,
petitioner, 13th June 1850, p. 445.

ENTAIL AMENDMENT ACT 1848-See Process.

Construction-The 36th section of the act provides, that
in any proceedings under it, no intimation shall be requisite
except to those heirs whose consent would be necessary to a
disentail. In an application, at the instance of an heir of en-
tail, for leave to charge improvements upon the entailed estate,
no name was inserted in the prayer, for the purpose of inti-
mation, except that of the petitioner's infant son, born sub-
sequent to 1st August 1848, and whose consent at the full
age of twenty-five years would have been sufficient, under
the act, to enable the petitioner to disentail the lands. The
Court held this intimation to be insufficient, in respect of the
next heir's pupillarity, and appointed intimation to the next
three heirs, in common form. M'Dougall, petitioner, 9th
March 1850, p. 392.

Construction-The statute requires certain applications
to be intimated by advertisement, "at least once weekly, for
six successive weeks," in such newspaper as the Court should
appoint-Held not necessary that a week should elapse be-
tween the last advertisement and the advising of the petition.
Burton, petitioner, 17th July 1850, p. 583.

Montgomery Act-Meliorations-The Court refused to
extend the benefit of the 16th section of the Entail Amend-
ment Act to an heir of entail who had not executed improve-
ments on the estate, but had reimbursed to certain third
parties the money expended by them in executing improve-
ments under an arrangement with a former heir. Monro,
petitioner, 24th Nov. 1849, p. 26.
ENTAILER'S DEBT-See Entail.
ERASURE-See Writ.

EVIDENCE-See Proof.
EXCAMBION-See Process.

EXECUTOR-See Discharge, Presumed. Process. Proof.

Statute 1617, c. 14-The statute 1617, c. 14, is not in
desuetude, and executors are entitled to one-third of the free
executry, deducting therefrom their respective legacies. Bar-
clay or Bell v. Murray, 29th Nov. 1849, p. 35.
EXONERATION-See Factor Loco Tutoris.
EXPENSES-See Curator. Entail. Guardian and Ward.
Implied Mandate. Jury Cause. Mandatory. Process. Suspen-
sion and Interdict.

Macintosh v. Trustees of West Stirlingshire Turnpike-
Roads, 29th Jan. 1850, p. 195.

A defender objected to the competency of an action, but
failed in his plea. The expenses effeiring to this discussion
were reserved. He afterwards succeeded on the merits, and
was found entitled to expenses generally-Held, nevertheless,
liable to the pursuer for the expenses of the preliminary dis-
cussion. Pollock v. Gibson, 8th June 1850, p. 431.

A petition and complaint was presented against A and
B. It failed against A, but was successful against B; and
the petitioner was found entitled to expenses against the latter.
Held that, under this finding, the petitioner was entitled to
recover from B the full sum paid as fee-fund dues, and for the
Lord Advocate's concurrence, but only one-half of the remain-
ing expenses incurred in the application. Borthwick v. Hunter
and Boyd, 23d Feb. 1850, p. 333.

In an action of damages against the trustees of a party
deceased, there was a verdict for the pursuer with expenses.
The auditor disallowed the cost of printing certain correspon-
*dence. In a subsequent discussion before the Inner-House
upon the question of the trustees' personal liability for ex-
penses, the printed correspondence was boxed to the Court.
The pursuer having been found entitled to the expense of this
discussion-Held that he was entitled to recover the cost of
} the printed correspondence, which had been found necessary
for the subsequent discussion, although it had been previously
disallowed as part of the costs of trial. Gerrard or Kay v.
Wilson's Trustees, 25th May 1850, p. 413.

Advocation-Process-Preliminary Defence-In an ad-
vocation, a preliminary defence which had been repelled by
the sheriff, was of new repelled by the Lord Ordinary, The
question of expenses was not disposed of. The defender moved
the Lord Ordinary to determine that matter, in order that
there might be no objection to the competency of his reclaim-
ing note under the 5th section of the Judicature Act. The

-Lord Ordinary refused the motion-holding, that the statute
requiring judgment to be given for the expenses of a preli-
minary discussion in the Outer-House in the event of the un-
successful party intimating his intention to reclaim, did not
apply to advocations, but only to ordinary actions originating
in the Court of Session. Allan v. North British Bank, 6th
June 1850, p. 427,

EXPENSES-Caution-Bankrupt Process A party, becom-
ing bankrupt during the currency of a process, is bound to find
caution for past, as well as for future expenses. Mackersy
v. Muir, 20th June 1850, p. 463.

1

› Counsel-Case in which the Court allowed the expense
of a third counsel, against the party found liable in expenses.
Craigie v. Marshall, 8th June 1850, p. 437.

Counsel and Agent Jury Cause-A defender got a
verdict with expenses. His agent charged a whole day's at-
tendance, in respect that, on the day appointed for trial, the
pursuer not being ready, obtained a postponement till next
day--Charge allowed. 2. On a motion at the pursuer's in-
stance to shew cause why a new trial should not be granted,
a fee for the attendance of one counsel to take notes was
allowed. Laurie v. Cleland, 13th July 1850, p. 573.

Curator Bonis-Process Two of the nearest of kin on
the father's side having applied for the appointment of a
curator bonis to an imbecile person, and suggested a party to
fill that office, the other nearest of kin on the father's side
objected to the appointment of the party named, and sug-
gested another. The Court having remitted to the sheriff to
name a proper party, he recommended a third person. Cir-
cumstances in which the Court allowed the petitioners only
the expense of the petition, and printing thereof, and to the
respondents their expenses, out of the imbecile person's estate.
Cochran 1. Cochran or Macaslan, 21st Nov. 1849, p. 11.

Jury Cause-A pursuer obtained a verdict with ex-
penses-Held that he was entitled to recover from the losing
party the expense of printing documents to instruct counsel
at the trial. Forbes ». Dunbar, 17th July 1850, p. 582.

Jury Cause-Act of Sederunt 17th July 1844, § 4—
Expenses of professional witnesses, for investigations previous
to trial, disallowed, in respect that application had not been
made to the presiding judge to certify the propriety of allow-
ing such, within the time limited by act of sederunt 17th
July 1844. Geekies v. Hutchison's Trustees, 9th July 1950,
P. 536.
Jury Cause-Bill of Exceptions-Case where, a bill of
exceptions having been sustained, the Court refused to give
expenses to the party excepting, but reserved consideration
thereof till the termination of the cause. Melrose and Co. v.
Hastie and Co. 1st Feb. 1850, p. 207.

- Modification-Jury Trial-An action for payment of
sman account for work done went to trial on alternative issues,
one as to the amount due, and the other, whether, in conse
quence of the pursuer's want of skill, the work was not wholly
useless. A verdict in favour of the pursuer, for a sum less
than he claimed, having been returned, the Court found ex-
penses due subject to modification; and-Held, (distinguish-
ing from Smith. West of Scotland Exchange Investment
Co.), that modification was to be made, not relatively to the
partial success of the pursuer, but according to the discretion
of the Court, in the circumstances of the case. Gunn v. Mar-
vfquis of Breadalbane, 21st Dec. 1849, p. 126.

Print-Jury Cause The defender, who got a verdict
with expenses, had made a print of documents for the use of
his counsel at the trial. Held entitled to charge the expense
of the print against the losing party, Laurie v. Cleland, 13th
July 1850, p. 573.

Process In a case where there had been unreasonable
procedure on both sides, and the Lord Ordinary, in respect of
the special circumstances of the case, found no expenses due
by either party Circumstances in which the Court adhered;
but intimated, that the proper course in such a case was, to
find each party entitled to expenses in so far as he had been
successful. Lowrie v. Jeffrey and Frier, 23d Nov. 1849, p. 22.

Process Poors' Roll-Where counsel other than those
appointed to act for the poor, act as senior counsel for one
suing on the poors' roll, their services are held to be gratuitous.
Robertson v. Finlay, 15th Dec. 1849, p. 112. - *1*
*-*-* Process Poors'-Roll-Held, (in conformity with Ro-
bertson v. Finlay, December 15, 1849), that where counsel
*- other than those appointed to act for the poor, act as senior

counsel for a party suing on the poors'-roll, their services are
taken to be gratuitous. M'Nair or Wark v. Russell, 22d June
1850, p. 470.

EXPENSES-Process-Suspension-Where a charger, after
presenting a suspension, withdraws his diligence, the suspender
is entitled either to payment of the expenses extrajudicially,
or to have the bill passed to the effect of obtaining payment of
expenses. Henderson v. Plenderleath, 22d June 1850, p. 472.

Process-Witness-In an action of damages at the in-
stance of the widow of a workman killed in a colliery, the
death was admitted to have been caused in the circumstances
alleged. The pursuers adduced a medical man as a witness,
to describe the injuries which appeared on the body of the
deceased. Question, Whether the attendance of the witness
was a good charge against the defenders, against whom the
pursuers had obtained a verdict with expenses? M⭑Nair or
Wark v. Russell, 22d June 1850, p. 470.

Trustee-Process-Observed, That, in decerning for ex-
penses against the trustee on a sequestrated estate, the pro-
per form of interlocutor is, to decern against him generally,
and not qua trustee; but, circumstances in which the Court
adhered to an interlocutor of the Lord Ordinary decerning
against him qua trustee. Carr v. Beadie and others, 21st June
1850, p. 469.

Trustee, Liability of Seduction-In an action of dama-
ges by a woman for her seduction by a party deceased, against
his trustees: Circumstances in which-Held, that the trus-
tees were liable in expenses personally, in so far as that might
be necessary from a deficiency of the trust-funds. Gerrard or
Kay v. Wilson's Trustees, 6th March 1850, p. 363.

Witness Jury Cause-In a jury trial, the defender led
no evidence, but got a verdict with expenses. Held entitled
to charge against the pursuer the expense of witnesses whom
he had in attendance, in case it should turn out to be neces
sary for him to lead evidence. Laurie v. Cleland, 13th July
1850, p. 573.

CAUTION FOR-Bankrupt-Trustee-Sequestra-
tion-An action was raised against a sequestrated bankrupt
to reduce a sale of furniture said to have been fraudulently
purchased by him, and for restitution of the subjects sold.
The trustee himself an undischarged bankrupt-sisted him-
self as a defender along with the purchaser. It appeared, 1.
That the sequestrated estate consisted entirely of the furni-
ture which was the subject of the action, and of certain shares
of stock and claims against third parties, on which, however,
no value could be put: 2. That of the three persons who,
though not creditors, had been elected commissioners as duly
qualified under the statute, one was bankrupt another re-
pudiated the defence, together with all liability for expenses-
and the third, whose sole title was a mandate from a creditor,
had lost it by his constituent's act of recal: 3. That none
of the creditors had done anything to incur liability for the
expenses of the action. Held that the trustee could not
insist in his defence without finding caution for expenses.
Richmond and Co. v. Railton and M'Phun, 13th June 1850,
p. 448.

EXTRACTED INTERLOCUTOR-See Process.

FACILITY-See Proof.

F

Reduction Issue Jury Cause-In a reduction on the
ground of facility-Held that the expression in the issue,
"weak and facile, and easily imposed upon," was a flexible
term, and did not necessarily and exclusively mean defect
of understanding, but also that facility, consisting of mere
weakness, which makes extreme age liable to be controlled
by intimidation. Fairservice or Cairns v. Marianski, 18th
July 1850, p. 586.

FACTOR, JUDICIAL Title to Sue-A creditor upon an un-
constituted debt (an account ex facie prescribed) held to have
no title to insist in an application for the appointment of a
judicial factor on the heritable estate of a deceased debtor,
which was in the possession of a party who claimed it as the
debtor's heir, but had not made up a title. Macdowall v.
Loudon, 24th Nov. 1849, p. 24.

FACTOR LOCO ABSENTIS-See Process.
FACTOR LOCO TUTORIS See Process.

1

Exoneration Circumstances in which the Court grant-
ed the discharge and exonération of a judicial factor on the
́estate of a pupil, without remitting to an accountant for an

investigation into the factor's intromissions. Brydon, peti-
tioner, 27th June 1850, p. 508.

FATHER AND CHILD-See Poor.
FEE-Clause-Construction-A testator settled upon his widow
the liferent of his whole means and estate, and the fee of one-
third of it. His settlement contained also the following
clause" Moreover, should it be necessary for her comfort-
able, independent, and respectable support and living during
her viduity, I hereby grant and allow her the full, free, and
unrestrained use and enjoyment of my whole heritable and
moveable means, estate, debts, and effects, to be disposed upon
at pleasure, for the purpose of a comfortable, independent,
and respectable maintenance during her viduity, which it is
my intention should be in all respects such as she may wish for,
and my circumstances and succession can afford."-Question,
Whether this clause imported a conveyance of the fee of the
residue? Thomson v. Campbell's Executors, 6th Dec. 1849,
p. 72.
FEE AND LIFERENT-See Destination. Testament. Title to
Sue. Vesting.

Fiduciary Fiar-Succession-Representation-Process
-Wakening and Transference-The proprietor of an estate
disponed it to himself in liferent, and, after his death, to his
son A, "but for his liferent use only, and to the heirs what-
somever of his body in fee." A was infeft"in liferent, but
for his liferent use only," without mention of the heirs of his
body. He raised, in the character of heritable proprietor in-
feft in the lands, an action of declarator for settling the
marches between the estate possessed by him under the
foregoing destination, and that of a neighbouring proprietor,
and died while the action was in dependence. Held that his
son B, whose title was made up as heir of provision to his
grandfather, did not represent his father in this action; and
that it could not, therefore, be wakened and transferred
against him. Emslie v. Fraser, 13th Feb. 1850, p. 246.
FETTERS-See Entail.

FEU-CONTRACT-See Superior and Vassal.
FEU-RIGHT-Latent Deed-Obligation-Disposition, ex Facie
Absolute-Held, in a question with the superior, that a dis-
ponse of the feuar, who had granted a latent and unrecorded
back-bond (produced in process), whereby his right was de-
clared to be merely a right in security, must be taken as fully
vested with the fee, and, therefore, as liable in the obliga-
tions of the original feuar. Clark v. City of Glasgow Life
Assurance and Reversionary Co. 20th June 1850, p. 459.
FEUDAL-See Sale.

Bounding Charter-Part and Pertinent-Commonty-
Prescription-The titles of a proprietor, containing a clause
of part and pertinent, described his lands as bounded by the
limits of the parish of Monymusk-Held that he could not
acquire, by prescription, a right of common property in land
lying beyond the limits of the parish. Gordon of Cluny v.
Grant of Monymusk and others, 28th Nov. 1849, p. 171.
FIARS-Interdict-Act of Sederunt 21st December 1723-Per-
-sonal Exception-In a particular county the fiars prices were
annually struck by the sheriff, not according to the verdict
of a jury, as provided by the act of sederunt of 21st Decem-
ber 1723, but upon the evidence of certain buyers and sellers
summoned before the sheriff at his own discretion, and exa-
mined by himself without the intervention of a jury. This
practice had prevailed for nearly a century in the county in
question. In a suspension and interdict at the instance of
several farmers in the county, whose grain rents were con-
vertible at a rate to be fixed by the fiars-Interdict refused,
on the ground that this was not the proper form for invert-
ing a long established mode of striking the fiars in that
county; and Opinion, 1. That the proper form was by petition
to the whole Court for instructions to the sheriff: 2. That
the complainers, who had entered into contracts of lease in
the knowledge of this mode of striking the fiars, were barred
by personal exception from calling it in question by suspen-
sion and interdict. Mylne and others e. Horne and others,
8th March 1850, p. 372,

FIDUCIARY FIAR-See Fee and Liferent.
FINAL JUDGMENT-See Advocation.

FOREIGN-See Bill of Exchange. Guardian and Ward. Juris-
diction. Trust.

FOREIGN MARRIAGE See Presumption.
FORUM COMPETENS-See Jurisdiction.
FRAUD-See Relevancy.

FRAUD - Reduction - Summons relevancy Pref. The

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bought 550 bank shares which stood in the name bank advanced the price, for which A granted two bills to the bank, leaving the shares with them in security. He then raised an action against the bank alone, to reduce, as one transaction, both the transfer of the 550 shares in his favour and the two bills, on the ground of fraud. The summons set forth that the pursuer had been induced to enter into the transaction by the fraudulent misrepresentation of the defenders; that the sale had taken place when the shares held a fictitious value, caused by, the fraudulent misrepre sentations and traffic of the bank and its confederates in the market, for the purpose of unduly enhancing the value, of their stock; that B, the seller of the 550 shares, was one of the confederates; that the shares truly belonged to the bank; and that the bank's object in bringing about the transaction was the substitution of the pursuer as a responsible party in place of B, who was not able to meet his engagementsHeld, 1. That it was not necessary to make B a party to the reduction, although he was the granter of the transfer. 2. That the summons contained sufficiently relevant statements for inquiry, although there were no petitory conclusions. Graham v. North British Bank, 9th March 1850, P. 393, FREE TEIND-See Teinds out is foot of 2 de dood standin sedi 911 781 bloods 2bth to 1391 to 190 191 Tobib it f GLEBE DESIGNATION OF See Church, GROUNDS AND WARRANTS+See Bankrupt, Bill of Exchange. Diligence Statute Writ Pole ant lo GUARDIAN AND WARD-See Curator, or to at

1

Tutor-Expenses Foreign Asparty entailed an estate under the condition, that if the heir succeeding should at any time be in minority, he should be restricted during pupillarity to one-fourth, and during minority to one third, of the free rents, and the other three-fourths, or two-thirds, should, be accumulated in bank, and laid out from time to time in the purchase of other lands, to be entailed in terms of the original deed. The entailer was succeeded by his son, who died, leaving an infant daughter, to whom he had nominated tutors and eurators. The pupil was taken by her mother to England, and on her death the pupil's maternal grandfather applied to of the Court of Chancery there to have the pupil made a ward of Chancery The tutors opposed this step, but the question was decided against them on appeal to the House of Lords, without any finding as to costs, and the pupil was appointed a ward of Chancery. During her pupillarity, the tutors regularly paid one fourth of the rents for her maintenance, and accumulated the rest in bank, on receipts taken to them. selves. On her attaining majority, they refused to act as curators, and raised a multiplepoinding the fund in medio being the accumulated is isum-in which they called the pupil, and claimed to be preferred thereon to the amount of the expenses incurred by them in the above litigation: Circumstances in which the Court repelled the claim of the tutors, and preferred the pupil, for the purposes specified in the deed of entail, to the whole of the fund accumulated, without prejudice to the tutors insisting against the pupil personally for the expenses in question. Beattie pBeattie's Tutors, 15th Dec. 1849, P413. it stiegsroftons bus byvoorST 19 qut

17

31

HEIR See Process
Pourer of bloons ton of

his

HERITABLE AND MOVEABLE-See Legacy Duty. Trust-Deed-A party died, leaving a trust-deed, whereby he directed his trustees to sell his estate, and divide the price belled upon her in liferent, for her liferent, use only, and children, the share of each daughter to settled her children in fee. The purchaser of the estate, on the amount of the share effeiring to each of the children being ascertained, retained the portion of the price corresponding to the daughter's provisions, and granted a bond and disposition in security for the same to each of the daughters, in terms of the trustdeed, on which sasine followed. One of the daughters died, leaving two sons and a daughter. One of the sons, a minor, executed a will, appointing an executor, and leaving his whole property to his brother and sister, equally between them. On the same day, he executed a deed nominating his law-agents to be his curators, and another appointing the same parties as his commissioners, to procure him served heir to any persons to whom he had succeeded, or might succeed. Under

After coming of age, he cleared the accounts of his agents, and granted them a discharge of their actings as curators. On his death, in a question between the surviving brother and sister, whether the fund was moveable, and carried by the will, or heritable, and fell to the brother as heir at-law: Circumbstances in which-Held, that it was heritable. Williamson Williamson's Trustees, 14th Dec, 1849, p. 9269uriav a do HERITABLE SECURITY-See Curator Bonisti niaga 287 HERITOR See Process Init of JA 8181 A HOLOGRAPH WRIT See Proof te horengas, HUSBAND AND WIFE-See Aliment. Disentail. Poor, Title oto Sue. botings y el red 200 & 18 19 Separation Held that habits of intoxication, on the part of a husband, will not warrant separation at the instance of his wife; but circumstances in which, such habits being accompanied with personal violence towards her, the Court bgranted separation, Maturin or Fulton v. Fulton, 28th June bs 1850, p. 509. ol latotoviton 870 as paisvest mon 170 Separation a Mensa et Toro-Aliment Process-A for 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 To stage, the Court remitted to the Lord Ordinary to repone him against the interlocutor, on such conditions as might appear proper, as to the expenses or otherwise, with full power to rachis Lordship to entertain and dispose of any application for aliment or expenses which might be made at a future stage of the cause. Sim or Alexander v. Alexander, 16th Nov. 1849, to P202 pistooler omspili 998-TIT I soliq hao walim

IMPLEMENT, SPECIFIC See Raque aw gnivari nofazim IMPLIED CONDITION-See Sale IMPLIED DISCHARGE See Jus Relicta loob & bosies bad na odd ai seda gai IMPLIED MANDATE See Delivery, beantra forand Expenses Agent and Client A having applied obtained sequestration, a petition for recal was presented, to which answers were lodged in name of A and his concurring creditor. After certain procedure, the concurring creditor lodged a minute disclaiming the appearance made for him in the process for recal, and the sequestration was thereafter recalled. The petitioners for the recal having moyed for expenses against the concurring creditor or his agents, the latter compeared in the process, and produced the serof Vice-copy of the application for recal, as evidence of their employment in that process by the concurring ereditor. bCircumstances in which Held, that there was no evidence to redargue the general rule, that possession of the serviceCopy implies a mandate to act for the party on whom service has been made; and the concurring creditor found liable in of expenses Pollock and Stewart v. Crouch, 24th Jan. 1850, P. 150. anon of mradi waillsqaroo vd, Jussiqmi sorotas IMPROVEMENTS See Entail. 79dtinted A smil betool INDEFINITE PAYMENT See Proof. 2 g 8181 vol. Agent and Client-Resting-Owing-C, a law-agent in Edinburgh, was employed to conduct certain processes for M, through K, a writer in the country, with whom C kept ai a general account. C having written to K enclosing his account against M for the process Mv, R, restricted to a ceraltain amount, as also his account against another party, K Jemitted C £150, which C wrote him he had placed" to the a credit of your accounts. Thereafter, C transmitted to M and K states of their whole accounts with him, putting the £150 to K's credit in his account, and in each case stating the account in Me, R as still outstanding, Subsequently, an arrangement was entered into between M and C. by which the 12 balance of the whole accounts, under a certain abatement, was paid to C, leaving the account in M. R for after settlement, M. having pleaded that this account was paid by K's remittance: Circumstances in which-Held, that C was entitled to impute the remittance to the extinction of the general balance due by K, and that M fell to pay the account in M. R without taxation, in respect that he had received