any cattle beyond what forms the proper stock of the dominant tenement.

The defenders pleaded-(1.) The loch being by its nature liable to vary in extent according to the moisture of the season, and the defenders being entitled to follow the water as the boundary of their rights, the pursuer cannot insist upon having the extent of the loch marked out by any particular line, or upon having its boundaries declared fixed and unchangeable in all time to come. (2.) As the expressions contained in the decree-arbitral are ambiguous, it is competent to prove the practice before and subsequent to the decree, for the purpose of explanation, and also to examine the documents upon which the arbiter founded his decision; and, (3.) In this view, and in terms of the decree-arbitral, the defenders are entitled to occupy the land down to the margin of the loch, to fish and shoot thereon, to cut reeds and rushes, and other herbage along therewith, to exercise the right of pasturage within the space overflowed by the loch in winter, as far as cattle can reach within the water-marks at other seasons, which right of pasturage is not confined to the mere putting of cattle to graze on the ground, but extends to cutting the grass and removing it for use, and to occupy and possess the same for every purpose to which it could be converted.

"25th May 1836.-The Lord Ordinary having heard counsel for the parties, and considered the records in the actions of declarator and advocation, productions, minute for the defenders, Messrs Hamilton and Warner, and whole process, conjoins the said actions quoad all the parties, except the said Messrs Hamilton and Warner; recals the interlocutor of the Sheriff: Finds that the rights of all the parties, in so far as the questions at issue in this process are concerned, must be regulated by the decree-arbitral pronounced by James Ferguson, Esq., in 1807: Finds, that under that decree, the defenders, with the exception of Patrick Warner, have a right to a servitude of pasturage at low water in the Loch of Stevenston, and cutting reeds and rushes within the same, opposite to the banks of the lands severally belonging to them in property: Finds, that under a servitude of pasturage, the defenders are not entitled to cut and carry off, or to make into hay, the grass or herbage on the ground over which the servitude extends, except in so far as it is unavoidable in cutting rushes or reeds: Finds it proved, that the terms rushes and reeds in the decree-arbitral, import the large rushes or bulrushes, and the reeds growing on the side or within the loch, as described in the proof, neither of which plants is proper as fodder for cattle, or generally used for that purpose: Finds that these terms do not comprehend sprits or sprats, a species of coarse grass or herbage, which is fit, and generally used for fodder, and which cannot be cut with the scythe, without at the same time cutting the grass or other plants among which they grow; and in respect it is not denied that the defender, John Dunlop, or his tenants, have cut and carried off, or made into hay, coarse herbage or grass, grants the interdict as craved in that matter, and decerns; and, before further answer, allows the pursuer a proof of the averments contained in the sixth and seventh articles of his condescendence (viz. as to alleged diminution of the loch, through acts of the defenders), and to the defenders a conjunct probation.

"Note.-These actions have been brought to ascertain the meaning of a decree-arbitral pronounced by Mr Ferguson in 1807, and to enforce it; by which decree all the parties are bound, or have consented to be bound, in so far as the questions at issue are concerned. It is settled that the Lock of Stevenston, that is, the water with the ground it covers, is the exclusive property of the pursuer, Mr Cuninghame; and the first question is, whether Mr Dunlop and his tenants, under a servitude of pasturage to which he has right by the decree, and which extends

were

over the ground covered by the loch when full, but left dry when the water subsides, are entitled to make into hay, and carry off the herbage growing there? To the Lord Ordinary it appears that they are not entitled. A servitude of pasturage is a limited right well known in the law of Scotland. The proprietor of the dominant tenement is entitled to feed the cattle of that tenement on the servient tenement; and if he keep no cattle on the dominant tenement, or not enough to consume the pasture, the owner of the servient tenement is entitled to use the whole grass, or the surplus. If the servitude man allowed to cut and carry off the grass in the shape of hay, he might sell it without restriction as to quantity, or use it for purposes having no connection with pasturage. Further, pasturing cattle improves the ground on which they feed, whereas making the crop into hay tends to impoverish it; and accordingly, it is believed that no such right is understood to be included in the grant of a servitude of pasturage. It is said, however, that the defenders are entitled to do this under the finding in the decree-arbitral, by which they are allowed to cut rushes and reeds. But this matter is well explained in the proof by the witnesses cited for the pursuer. There are large rushes or bulrushes growing by the side of the loch, and also a considerable way within the water, sometimes reaching the height of six or eight feet, and as thick as a goose quill. These are altogether unfit for fodder, but are cut for thatch to houses, stacks, and similar purposes. There are also reeds equally unfit for fodder, but used by coopers and other tradesmen. Both of these may be cut without interfering with the herbage. But there is likewise a small plant, called a sprat or sprit in Scotland, which grows not merely by the side of lakes, but generally where there is wet ground, or where the subsoil is wet, and which constitutes a principal part of the herbage of such ground, and is relished by the cattle. These plants are sometimes called rushes, or in Scotland, thrashes, and not improperly, for though of a very different size and quality from a bulrush, they have an affinity to the tribe. But the arbiter, in giving a liberty to cut rushes and reeds, could not have had this plant in his eye, otherwise he would have found at once, that the defenders might cut the whole herbage by the side of the loch; for it is impossible to separate the one from the other. The same thing may be said of paddock or puddock-pipes (equisetum, or horse-tail), a small plant intimately mixed with the grass in wet places. The question with regard to cutting herbage was properly raised before the Sheriff; a proof was competently allowed, and being ready for decision, the Lord Ordinary has given judgment upon it. But the other question is in a different situation. The arbiter found that the property of the loch is in the pursuer, who avers that some of the defenders, or their tenants, with a view to increase the extent and value of their right of pasturage, cut a drain or drains from the loch, or unnecessarily deepened the aqueduct to the mill, by which he is deprived of part of his property, or the servitude improperly extended. Some evidence was taken before the Sheriff on that point, but the greater part of it relates to acts done fourteen or fifteen years before, and which, therefore, could not be completely proved in the possessory action. That evidence, therefore, is irregular, and cannot be referred to, unless parties consent to abide by it, which they have not done. Undoubtedly, Messrs Hamilton and Warner are entitled to clear out their aqueduct, but they are not entitled to deepen it, unless a supply of water, according to use and wont, cannot otherwise be procured. If the drain or aqueduct was unwarrantably made, it is thought the pursuer is entitled to counteract its effects, by raising a mound to restore the loch to its original size, which may be discovered, if, as he alleges, it was originally bounded by march-stones. But if, on the contrary, no such illegal act is proved, it may be doubted whether the march-stones will be of any advantage to him; for the arbiter has made no provision for the case of the loch being diminished, gradually and slowly, by the accumulation of soil in the basin from natural causes; and in that case, it may be thought that the rights of parties will be regulated by its varying magnitude. But this point is left for argument, after the proof now allowed has been taken. It is not probable, however, that its surface should have been di

minished in that way, to the extent of twenty acres since 1807, the difference, as is alleged, between its size then and at the present time.'

The defenders reclaimed. At advising, the Court adhered, without hearing parties. The averments of the pursuer as to the diminution of the loch, through the acts of the defenders, still remain on proof before

answer.

Pursuer's Authorities.-Dick, 17th November 1769; Morr. 12,813. Ersk. II. 9, 14. Breadalbane, 15th June 1741; Brown's Sup. pp. 710, 725.

Lord Ordinary, Corehouse.-Act. G. G. Bell; Gibson and Donaldson, Agents. Alt. Mure; George Dunlop, W.S., Agent.-B., Clerk.-[G.D.F.]

20th December 1836.

FIRST DIVISION.—(G.D.F.)

No. 99. JOHN CAMPBELL, Raiser, v. DAME SARAH ANSTRUTHER and OTHERS, Claimants.

Heir and Executor-Grass Farm-Corn Farm-In a competition between heir and executor for the rents of the farms on a landed estate, the criterion for judging whether the farms are to be held to be grass or corn farms, is the source from which the profits are chiefly derived.

The late Sir Robert Anstruther, of Balcaskie, Bart., died on 2d August 1818. He had been married to the Lady Janet Erskine, but she predeceased her husband, leaving a family, of which a son, Brigadier-General Robert Anstruther, and two other children, also predeceased their father. A surviving daughter, Mrs Campbell, was one of the claimants in this process of multiplepoinding. The father executed a trust-deed of his whole property, heritable and moveable, in favour of Mr Campbell of Stonefield, the present pursuer. The heritable property was by that deed given to Sir Ralph Anstruther, the truster's grandson, and eldest son of Brigadier-General Anstruther. The moveable succession, as there was no widow, was divided into two parts: one of which, as legitim, belonged to the children. Under the trust-deed, Mr Campbell for a course of years intromitted with the rents of the heritable property (situated in Caithness), as the guardian of the heir:

He also intromitted with the whole moveable property left by the truster: and he afterwards instituted in the Court of Session this process of accounting, in order that the various claims upon the moveable property might be discussed. Of these the most important were, the claims for legitim due to the children or their representatives. The record was closed, and a judgment on some of the points under discussion was given by the Lord Ordinary, after which the case was remitted to Mr H. Ivory, accountant, to examine the accounts of the raiser, with a view to ascertain the amount of the fund divisible as legitim, and the shares of the claimants. He accordingly reported, when various objections were taken by the parties; and one of those which came into Court on a reclaiming note from the Lord Ordinary's decision, deserves notice, as affording a rule for determining what farms are to be considered as grass, and what as corn farms, in questions in regard

to the division of rents between an heir and executor. It appeared that Sir Robert Anstruther survived Whitsunday 1818, and it was admitted that the rents of the first half of crop 1818 belonged to the executry, but it was disputed whether the rents falling due at particular terms were in reality due for that crop.

On the part of the claimants, it was argued, that the term of entry being in most instances at Whitsunday, and as possession also ran from Whitsunday to Whitsunday, the farms must be held to be grass or pasture farms; and that, in this manner, the rents payable at Candlemas and Lammas 1818, being for possession from Whitsunday 1817 to Whitsunday 1818, must have been due for the grass crop of 1817, and the corn crop of 1818; and those payable at Candlemas and Lammas 1819, must, in like manner, have been due for the grass crop of 1818, and the corn crop of 1819. While, on the other hand, the rents payable at Lammas 1818, and Candlemas 1819, so far as arising from grass farms, being in this view due for the last half of the grass crop of 1817, and the first half of the grass crop of 1818, would, of course, belong to the executry, and a claim was accordingly made, that an addition to that extent should be made to the sum given credit for in the report.

It was on the other hand maintained, on the part of the trustee, that Whitsunday was the usual term of entry in Caithness, even to corn farms; and that, in the present instance, the whole were in reality corn farms. The rents payable at Lammas 1818, and Candlemas 1819, which were thus due for the second half of the crop of 1818, and first half of the crop of 1819, and which became exigible only after Sir Robert Anstruther's death, could not, it was alleged, form part of the executry. The question between the parties, therefore, came to be, and to depend on this, whether the farms were to be held as grass or corn farms.

Many of the tacks and old rentals, and accounts for the property, had been produced to the accountant, but neither these, nor the more recent tacks or rentals, afforded any very direct evidence on the question.

The accountant had made up his account between the parties, on the principle that the farms were corn and not grass farms. In his remarks appended to the report, he stated, that if it should be held, conformably to the argument in the case of Campbells against Campbell, 11th June 1745, Dic. p. 15,908, that where any victual, however little, is paid as rent, the farm is to be accounted a corn farm, then the inference drawn from the mere fact of the entry being at Whitsunday, is completely obviated; for the entry to several of the farms paying a victual rent was at that term, and several other farms, which now pay their rent in money, formerly paid it in victual. It farther appeared to the accountant, that, in the present case, no weight could be attached to the mere fact of the term of entry being at Whitsunday, or of the rents being payable for the farm from Whitsunday to Whitsunday, as affording any proof of the farms being grass farms. On the contrary, there seemed to him to be no marked difference between those farms which were admitted to be corn farms, and the others; and the presumption, therefore, rather was, that all of them were truly corn farms.

In evidence of what the accountant stated, he referred to a rental subjoined to his report, and to a report on the state of the whole of the Caithness property belonging to Sir Ralph Anstruther, which was made up by Mr George Robertson, the accountant, in 1827, and which exhibited the extent of arable ground and pasture, and the relative value of each on the different farms. The accountant considered the following general remarks, made by Mr Robertson, in regard to the extent of the farms, the nature of the crops, and the kind of cultivation usually adopted, as strongly corroborative of the opinion which he entertained as to the particular class to which the farms belonged:

:

"The farms are generally small, varying in size from 5 to 60 acres of arable land, only a very small number exceeding that extent. There is usually a considerable quantity of pasture or uncultivated land in each possession, but this is of little value, a great deal of it having been cast up and carried off for divot and muck feal. The herbage it produces is usually a coarse benty grass. The crops cultivated are oats and bear or bigg little wheat or barley is sown, and when sown, seldom comes to maturity." "The rotation usually followed is oats, barley and oats, barley in succession. This has been the course followed on the best or infield farms from time immemorial. A rig of potatoes is usually planted for the use of the family, but few turnip are raised, and as little red clover or sown grass. The cattle are usually grazed during the summer season on the pasture or waste land of the possession, or upon the moor or mosses contiguous, which are usually common to all the adjacent farms."

The accountant stated, that it had been objected by the defenders, that any statement contained in Mr Robertson's report, which is dated only in 1827, could not be depended on in a question regarding the state of the property in 1818. But the accountant was not disposed to place much weight on this objection, as the greater number of the farms of those even which paid victual rents, were possessed for a long time previously either to 1818 or 1827, without any lease, and merely from year to year, so that it was scarcely to be presumed that any material alteration could have been made on the kind of cultivation in the interval between these dates; considering the kind of farms and description of tenants, there could be little doubt that the same system of management and cropping, as was described in Mr Robertson's report, had been previously in use for a very long period; at all events, there was nothing to show that, during the above mentioned interval, the tenants had converted their farms from grass into corn farms.

The claimants objected to the accountant giving credit, in conformity with his opinion, to Sir Robert Anstruther's trustee for the amount of £1013. 14. 7., on account of the rents of the Caithness estates. They objected to his deducting from the executry fund, by this article, the rents of the estates payable at Lammas 1818 and Candlemas 1819; and they maintained, that most of the farms on the estates, with reference to the payment and division of rents, ought to have been dealt with by the accountant in making up his report, on the footing of their being grass or pasture farms, and not corn farms.

On 11th July 1835, the Lord Ordinary pronounced an interlocutor; and in respect parties are at issue on the fact, whether certain farms mentioned in the ob

jections are grass or corn farms, which may affect the division of the rents between the heir and executor, of consent remitted to James Traill, Esq., late Sheriff of Caithness-shire, to inquire into the matter, and to report to the Lord Ordinary by the third sederunt-day in November next. The reclaiming notes for both parties were advised by the Inner-House on 10th March 1836, when the Lords adhered to the interlocutor reclaimed against, in so far as regards the remit to James Traill, Esq., late Sheriff of Caithness.

Afterwards, a report was presented to the Court by Mr Traill; and on 31st May 1836, the Lords remitted to the accountant to reconsider the case, who then reported, with respect to the farms considered grass ones, that the half-year's rent due at Lammas 1818, payable for the last half of the grass crop of 1817, and the half-year's rent due at Candlemas 1819 for the first half of the grass crop of 1818, would fall to be added to the executry.

The report by Mr Traill is as follows:

"In obedience to the above appointment, I have minutely inquired into the tenures by which the estates of the late Sir R. Anstruther, in the county of Caithness, were held at the time of his death, and from the result of that inquiry, together with the personal knowledge I have of the state of the property, I may state generally, that the estates of Wattin and Dun, containing the whole of Sir Robert's lands situated in the parish of Wattin, are, with the exception of Flex, Scorryclett, Badlibster, Achalibster, Bolanglo, Strathbeg, and Halsery, to be considered as corn farms; by which I mean to say that grain is their chief produce, and may fairly be said to be the source from which the rents are paid, and the farmers' profit drawn. In one or two of them a dairy stock is kept, but in general the grass is barely sufficient for the support of the farming stock, and the supply of the tenants' families with milk. A detailed examination might furnish small shades of difference, but this would involve a critical investigation into the state of each farm.

"The excepted farms are partly arable and partly pasture grounds, varying also a good deal in the proportions of each; but assuming a principle similar to what has been adopted in the former case, namely, the source from whence the profits chiefly arise, these are to be considered as grass farms, at least to the extent of two-thirds or three-fourths of the rent. the same may be said of the whole lands and estate of Braemore, where the grazings are extensive and profitable, and the cultivation confined to small portions of land, the produce whereof is barely sufficient for the support of the inhabitants."

And

Heritable Creditor-Disposition in Security-Sale-Clause— Rent-1. Where a party holding a bond and disposition in security over a tenement, of which the debtor was in the natural possession, brought it to sale- Circumstances in which the debtor was held liable for a half-year's rent to the purchaser, though the title of the latter was not completed till the last day of the half-year. 2. Where a party was infeft in "all and haill that back house"- Circumstances in which his right was

held to extend beyond the extremity of a measurement specified in the titles, so as to entitle him to rent for the whole subject.

In 1830, the suspender, on receiving a loan from the charger of £490, gave him a bond and disposition in security, with power of sale, over certain property in Inverness, which is described in the title-deeds as follows:

"All and haill that back house formerly possessed, &c, with the garden possessed, &c., the whole making in breadth from south to north, as it fronts and lies close by the high road leading from Inverness to Clachnaharry, and terminates at the gable of that barn belonging to Andrew Macfadreck, 45 feet, and from east to west, in length 135 feet, as marked and ascertained by polled stones, and which ground is part of the lands of Muirtown, holding of the Crown, and lies within the shire and parish of Inverness, together with the houses and other buildings lately erected by him, the Reverend John Clark, on the said ground, or as the said space of ground and others are or may be described in the present and original rights and infeftments thereof."

The charger's bond contained the usual powers of sale, in virtue of which the subjects were exposed to sale by public auction on the 7th April 1835, after due advertisement and premonition to the suspender. By the articles of roup, the term of entry was declared to be Whitsunday 1835, from which term the rents were to be assigned. The suspender was in the natural possession of the subjects; and the charger, upon the 2d April 1835, being forty-three days before the term of Whitsunday, transmitted the following letter to him:

"Reverend and Dear Sir,-On reference to the sale of your subjects on the 7th instant, I hereby give you notice that you will require to remove from the subjects at or before Whitsunday next; and should you remain after that time, I now intimate that I will hold you liable in a rent of £25 Sterling for the house you occupy. I am," &c.

To this letter no answer was returned by the suspender.

The sale did not take place on the 7th, and the subjects were afterwards offered at reduced upset prices. On 12th June 1835, they were purchased by a Mr Craigie for £300, who was preferred to the purchase, and enacted himself in terms of the articles of roup. On 2d September 1835, Mr Craigie made over the property to the charger, who was infeft on the 4th November following. The charger then raised an action against the suspender before the Sheriff, for payment of £12. 10s. as the rent of the half-year from Whitsunday to Martinmas 1835, in which decree was pronounced against the suspender, who thereafter presented a bill of suspension, to which answers were given in on the part of the charger.

The suspender contended-1. That, even supposing that he had continued in possession of the houses built upon the subjects embraced in the bond, he could not be liable in rent, inasmuch as he himself was heritable proprietor in possession, and was not divested of that character till the conveyance to the charger was feudalized on 10th November 1835. Down to Martinmas 1835, the charger was no more than a creditor holding a bond and disposition in security, and could not dispossess the suspender until Whitsunday 1836, by a regular action of removing; nor could the charger have

any claim for rent. 2. That it was quite illegal to attempt to fix a quantum of rent as due by the suspender, by the letter of 2d April; for if the charger could not succeed in an action of removing against the suspender, which was impossible so long as he was not heritable proprietor, he could not fix a rent, and for the same reason was not entitled to expect an answer to that letter. Besides, 3. The suspender had at Whitsunday 1835, quitted possession of that part of the subjects covered by the charger's security, and now belonging to him. The feu in question was limited to an express measurement of 135 feet by 45 feet, and the house occupied by the suspender extended beyond the extremity of the feu, so that the gateway, door, entrance, passages, a distinct room and lobby, were erected upon property belonging to the suspender, and held under a different tenure. Since Whitsunday 1835, the suspender had confined himself to this portion of the house, so that he had ceased occupying what belonged to the charger, for which alone he could be liable in

rents.

The charger replied-1. That as the property was exposed to sale in virtue of the powers conferred by the suspender in the bond and disposition in security granted by him, it was the same as if the sale had been made by the suspender himself; and by the articles of roup, the entry of the charger, who was the purchaser, was declared to be at Whitsunday 1835, from which term the rents were assigned to him. Hence the suspender must be liable in rent, as he would undoubtedly have been had the sale been made by himself under these conditions. 2. The quantum of rent was now fixed beyond dispute by the letter of 2d April, which the suspender acquiesced in by not answering it. 3. While it was not true, in point of fact, that the suspender had quitted possession of a fraction of the house before the sale, this was of no consequence, as the disposition in security conveyed the whole house, which must therefore be held to belong to the charger, notwithstanding the measurement referred to.

The Lord Ordinary having refused the bill, and found the suspender liable in expenses, Clark reclaimed, and the Court (13th December,) adhered.

Lord Ordinary, Cockburn.-Act. Wood; James Macdonell, W.S., Agent.-Alt. Ivory, Cowan; Hunter, Campbell and Company, Agents.-[J.D.M.]

20th December 1836.

SECOND DIVISION. (J.D.M.)

No. 101. JOHN Ross, Charger, v. REV. JOHN
CLARK, Suspender.

Removing-Heritable Creditor-Sale-Clause- Where a party was infeft in "all and haill that back house"- Circumstances in which his right was held to extend beyond the extremity of a measurement specified in the titles, so as to entitle him to remove the occupant from the whole subjects.

This case arose out of the same circumstances with the preceding, to which reference is here made. The charger brought an action of removing before the Sheriff against the suspender, who gave in defences, in which he stated his willingness to remove, and averred that he had already done so from that part of the premises belonging to the charger, but objected to being called upon to remove from the whole subjects. The Sheriff

having decerned in the removing as to the whole subjects, Clark presented a bill of suspension, to which answers were given in for Ross. Thereafter, the suspender was ordered to produce his titles to the subjects adjoining the charger's property, from which it rather appeared that the house occupied by the suspender was built partly beyond the extremity of the measurement of 135 feet by 45,-not on any other ground belonging to the suspender, but as an encroachment on a lane or thoroughfare which led in that direction. In these circumstances the charger pleaded, That the erections, which appeared to be of the nature of an encroachment, besides being comprehended in the disposition in security, fell to him as pertinents of the subject he had acquired.

The Lord Ordinary having passed the bill, Ross reclaimed.

The Court (13th December,) remitted to refuse the bill.

Lord Ordinary, Cockburn.-Act. Ivory, Cowan; Hunter, Campbell and Company, Agents.-Alt. Wood; James Macdonell, W.S., Agent.-[J.D.M.]

22d December 1836.

FIRST DIVISION.-(G.D.F.)

No. 102.-SIR JOHN DALRYMPLE, Bart., and Others, Trustees of the late Earl of Stair, with concourse of HIS MAJESTY'S ADVOCATE, Petitioners, v. ARCHIBALD COULTER and OTHERS, Respondents. Interdict, Breach of Contempt of Court-Punishment-Process-Expenses-A petition and complaint having been presented against certain parties, alleged to be guilty of breach of interdict of fishing for salmon, previously obtained against them, praying the Court to award a suitable punishment; and several lodged answers negative of the averments in the petition, and one of the parties failed to appear— The Court, (1.) remitted to the Lord Ordinary to make up a record between the petitioners and respondents; and (2.) awarded the expense of the application (modified to £3. 3s.) against the non-appearer in modum pœnæ.

The petitioners obtained an interdict against Archibald Coulter, and certain other parties, from fishing within the limits of the salmon fishings in the bay of Ballantrae, belonging to them as trustees of the late Earl of Stair; and on the averment of breach of the interdict, and condescendence of specific acts by certain of the parties, the petitioners presented this application to the Court, with the following prayer:

"May it therefore please your Lordships to order this petition and complaint to be served upon the said Archibald Coulter, slater in Ballantrae; Thomas Eaglesham, residing there; James M'Credie, innkeeper there; Robert M'Gregor, residing there; Donaldson Millar, teacher there, and William and John Cumming, sons of William Cumming, boat-builder there, and ordain them to put in answers thereto within such short time as may be deemed reasonable; and thereafter, on resuming consideration of the present petition and complaint, with or without answers, to inflict on the said parties such punishment, adequate to their offence of breach of interdict, as to your Lordships may seem proper, and to find them liable in the expenses of this application and procedure to follow thereupon; or to do otherwise as your Lordships shall see cause in the circumstances of the case.'

Answers negative of the petition were lodged in name of all of these parties except Donaldson Millar.

With regard to the respondents, the Court remitted to the Lord Ordinary to make up a record between them and the petitioners; and quoad Donaldson Millar, he was held as confessed.

Thomas Maitland, for petitioners, craved the Court to award such a punishment against Millar as was suitable to the offence.

Lord President.-The expense of the application will, I suppose, be a sufficient punishment.

The Court

"remit to the junior Lord Ordinary to prepare a record; and with respect to Donaldson Millar, hold him as confessed, and hold him liable in expenses, and modify the same to £3. 3s.

Act. Thomas Maitland; Eneas Macbean, W.S., Agent.— Alt. Thomas Anderson; Hamilton and Macnight, W.S., Agents. -D., Clerk.-[G.D.F.]

22d December 1836.

FIRST DIVISION.-JURY CAUSE.—(G.D.F.) No. 103. RUTHERFORD, Pursuer, v. DAVIDSON, Defender.

Damages Tender, Judicial—Jury Cause—Process--A. brought an action against B., concluding for £200 in name of damages, and B., before the summons was called in Court, offered to pay expenses, and a sum of £10 in name of damages, which A. refused, as well as a similar tender made by B. in his defences; and after the issues were adjusted, and he was required to go to trial, A. stated his readiness to accept of the tender, to which B. would not accede- The Court found A. liable to B. in the expenses he had incurred, both previous and subsequent to the tender.

The pursuer, on the allegation that his house had been considerably injured at different times by the projection of missiles against it, and that, in one instance, the defender was taken to the Police-Office and fined for having assaulted the pursuer, and thrown a stone against his dwelling, brought an action, on 1st December 1835, against the defender for damages and reparation for the injury thereby sustained.

The defender explained the circumstances, and stated that he offered, through a friend, immediately after the action was raised, and before the summons was called in Court, to pay £10 in name of damages, and expenses incurred up to that date. The offer was refused, but a like tender was made in the defences. The following issues were thereafter prepared :

“(1.) Whether, on or about the 16th November 1835, at or near the pursuer's house," "the defender did assault the pursuer, to the loss, injury, and damage of the pursuer? (2.) Whether, on or about the 26th day of said month, the defender wrongfully struck the side of the pursuer's house, or one of the windows of the same, with a stone, to the loss, injury, and damage of the pursuer ?" Damages laid at £200.

This

Thereafter, the pursuer, on being required to go to trial, intimated by letter, on 19th December 1836, his intention not to proceed, and stated that he would accept of the tender contained in the defences. request was not, however, acceded to, and the case was enrolled before the Division, to crave the Court to interpone their authority to the letter of 19th December, and for expenses against the pursuer.

D. M'Neill for defender.-In reference to overtures made after the raising of the action by some friends of the defender, for an extrajudicial settlement, viz., of