The Scottish Jurist: Containing Reports of Cases Decided in the House of ...

to the application, but afterwards objected. According to the report of Mr Wight, accountant, to whom the process was remitted, the only creditors upon the estate at the time of this application were Mr Dickson, in a sum of £17, 2. 2., and the heir, James Carruthers, for his share of the £800 bond, who opposed the sale. Decree of sale was, however, granted in 1811, and the sale was carried through. The estate was purchased, under protest by the heir, James Carruthers, who, along with his son, soon thereafter raised the present action of reduction and declarator of the decree of sale in 1811, and all that had followed thereon, on the following grounds: I. That the petition to the Court, of 6th June 1806, and whole subsequent procedure, were illegal; because none of the persons, in whose names the proceedings were instituted and carried on, were either parties to the said process of ranking and sale, or just and lawful creditors either of the entailer or of the pursuers, the present heirs of entail.—II. That the proceedings were also illegal, because they were carried on without a common agent. On the first of these pleas it was stated for the pursuers, that of the five individuals who instituted the proceedings, not one was a real creditor of the estate. The first, Christopher Carruthers, was, by the entailer's trust-deed, a mere annuitant, and not entitled to bring the estate to sale. The second, Mr Phillips, was, according to the accountant's report, a creditor of Christopher Carruthers, and not of the entailer. The third, John Burney, could produce no sufficient voucher or claim. The fourth, Mr Little, the judicial factor, was, according to the Accountant's report, a debtor to the estate for £49, 14. 9; and the fifth, Mr Dickson, if a creditor at all of the entailer, was only to the extent of £17, 2. 2, expended in payment of some old accounts, and even with regard to that sum, the Accountant had reported, that

"these debts had been purchased or paid by him (Mr Dickson), after the date of the interim-decree of division, and were not produced, and of course not contained in the decreet of ranking; and it might have been alleged that one of them, if not two, were prescribed, and that the whole were struck at by the extracted decreet, contra non producta."

With regard to the 2d plea, as to the proceedings having been conducted without a common agent, it was admitted on the record, that in the year 1805, before the petition for sale was presented, Mr Dickson, the common agent, had retired from business, and the defender, Mr Johnstone, at the request of Mr Dickson's trustee, "assumed" the charge of the process of ranking and sale. Mr Johnstone was not appointed common agent by the creditors, but was disqualified for being appointed, as he acted as the agent of the whole alleged creditors-Act of Sederunt, 11th July 1794. In defence against these pleas, it was maintained for the defenders-I. That the summons of reduction was defective, inasmuch as it did not call for reduction of the acts and warrants whereby the lands of Longdyke were sold, and unless these were reduced, the pursuers could not obtain reduction of the consequent decree of sale.-II. The pursuers were barred from insisting in the present action, by the rules applicable to pleas, competent and omitted, in questions on the

effect of decrees in foro. Mr James Carruthers, pursuer, was not only a party to the process of ranking, but a purchaser, although under protest.-III. That all the parties in the petition of 6th June 1806, were creditors: That, in particular, Phillips was a creditor of the estate in sums expended in permanent improvements That Burney was a creditor for similar improvements: That Mr Dickson was a creditor of Hardriggs, and of Christopher Carruthers: That Mr Little was entitled, by Act of Sederunt, 23d November 1711, to become a party to the petition, whether a creditor

or not.

This action being conjoined with the previous process of ranking and sale, the Lord Ordinary reported the whole cause on cases to the Inner-House; and their Lordships having remitted the process to Mr Stuart, accountant, to report what debts, if any, were due, and affecting this bankrupt estate at the date of the petition to the Court, for the second sale, in 1806, and at the date of the sale in 1811. Mr Stuart reported a balance of claims directly affecting the estate at 1806, amounting to L696, 1. 10, while the estimated value of the estate was only about £1700, and of claims directly affecting the estate in 1811, amounting to £891, 10s.51d., while the funds were then estimated at £1981, 6s. 9ɗ.

Lord Balgray considered the present a pure question of law and relevancy. Was the Court entitled, upon the evidence produced, to reduce the decree of sale of Longdyke? The case did not appear difficult. The pursuer appeared in two capacities, as heir of entail, and as purchaser. It was difficult to perceive his interest in reducing the decree of sale, which was a surer and more advantageous title to him than the entail. But laying that out of view, the case was clear on principle. After the first decree of sale, while one shilling remained unpaid, the creditors were entitled to petition for the renewal of the sale. The pursuers had not brought a reduction of the grounds and warrants of the original decree; and if any improper claims had been sustained by the accountants, it would still be in the pursuers' power to object to them in the relative action' of ranking and sale, still pending. Mr Stuart's report had satisfied his mind, that, in 1806, there were just grounds for renewing the proceedings in the ranking and sale, and that these grounds still subsisted in 1811.

Lord Craigie differed, and thought that if the only valid claim against the estate in 1806, was the common agent's debt of £17, 2s., the petition then presented could not be considered a bona fule proceeding, when the estimated value of the property was taken into consideration. Although the common agent was a trustee for the creditors, he also acted as the officer of this Court, and for behoof of the heir, and was not entitled to sacrifice, without due necessity, his interests; and the heir himself, although his title under the decree of sale might be more advantageous to him than his title under the entail, could not, in justice to his son, and the succeeding heirs of entail, acquiesce in any irregular proceedings, by which the succession had been evicted from them.

Lord Gillies thought it would be attended with very serious consequences to reduce this decree of sale. The question must be determined on the same principle, as if the purchaser under this decree had not been the heir, but a third party; and if a third party had made a bona fide purchase under a regular and final decree of this Court, could his property be evicted from him on such grounds as those stated here?

The Court then pronounced as follows:

"The Lords having resumed consideration of the revised cases in the cause, with the report of Mr John Stuart, accountant, and heard parties' procurators, they assoilzie the defenders, John Dickson and his trustee, and the representatives of the late Wil

liam Johnstone, from the whole conclusions of the action of reduction and declarator, and decern, reserving the question of expenses; and quoad ultra, remit to Lord Newton, Ordinary, to hear parties as to all claims made in the process of ranking and sale, and to proceed as accords."

First Division.-Lord Ordinary, Newton.-Act. J. I. Henderson.-Alt. Gillies.-Thomas Ranken, S. S.C., Agent for Messrs Carruthers.-William Johnstone, S. S. C., Agent for himself, and J. Dickson. -Mr Hamilton, Clerk.

12th November 1830.

No. 2.-H. C. Rutherfurd, Pursuer, v. NISBETT'S TRUSTEES, Defenders. Title to Pursue-Service-Reduction-Destination-Held, that an apparent heir-male and of provision, seeking to reduce a special service and consequent deeds of one who had been in possession of the lands, solely for the purpose of having it declared that the pursuer had right to serve himself in special, needs neither to set forth more than his propinquity (if not denied), nor to produce a service as heir of provision; and that an adjudication led against the pursuer's ancestor, subsequent to the destination by a prior ancestor, does not bar the reduction.

In 1749, Sir Alexander Nisbett, failing his own descendants, settled the estate of Dean upon his nephew, Henry Rutherfurd, and the heirs male of his body, without any prohibition against selling, contracting debt, or altering the destination. Henry Rutherfurd, the pursuer, was great-grandson and heir male of line to the Henry Rutherfurd above-mentioned. Sir Alexander left issue, two sons, of whom Sir Henry died without issue. Sir John, the other son of Sir Alexander, and possessor of Dean, left two sons, of whom the second died issueless, and the eldest, John, was, on the 15th August 1781, served heir of provision in special to him in the estate, and on the 10th of October 1781, infeft. This person assumed the title of Sir John Nisbett, and as such executed a trust in favour of the defenders. The defenders raised letters of special charge against the pursuer, as heir of provision to their truster. And the pursuer, on the 15th of June 1829, brought a reduction of the truster's service in 1781, and of his trust-settlement, on the ground of illegitimacy. To this action the defenders gave in dilatory defences, setting forthThat the truster was heir of line and provision to Sir Alexander, had possessed the estate in fee-simpleand evacuated the destination in the procuratory by the execution of the trust: That the pursuer had produced no service as heir: That the grandfather of the pursuer had got a Mr Edgar to adjudge his right, and bring a reduction against Sir John, on the 23d of December 1790, on the same ground; but that the then defender was assoilzied with expenses: That the pursuer applied, on the 10th of February 1829, for leave to appeal, and sist himself as pursuer in the old action, but that his application was dismissed as incompetent: That the warrants of Sir John's service, and the title challenged, were prescribed. They pleaded want of title to pursue, and res judicata. Cases were given in. In his the pursuer pleaded, that, as he would have been the person entitled to take up the hereditas jacens of the truster's father, in the event of the truster's non-existence as a lawful heir, he was entitled to reduce the truster's service, in order to clear the way for his own special service, although not entitled, without a service, to take out of the

hereditas jacens of the ancestor a right remaining vested in him: That a general service would not be the proper course: That the adjudication by Edgar formed no bar, being merely an inchoate right. The defenders pleaded-That although the pursuer was entitled to complete a title, he had not libelled that title, or even the right of apparency, or produced any proper title (which behoved to be a service as heir of provision in general to the person whom he represented as last legally vested), but merely a special service to his great-granduncle, James Lauder, and to his father, as heir-portioner of his great-granduncle: That nei ther his service nor his apparency could give him a right, until the re-transference of Mr Edgar's right.

The Lord Ordinary (12th May 1830), having considered the summons, and the first dilatory defence, and heard parties' procurators thereon, and having thereafter considered the mutual cases for the parties; in respect it is not denied, that the pursuer possesses the title of propinquity set forth in the summons, and is expressly admitted in the defences, that, but for the evacuation of the destination libelled on by the trust-deeds called for, the pursuer would have been entitled to succeed to the estate as heir of provision under that destination, and in respect of the special nature of this action of reduction, Repels the objection to the pursuer's title, founded on the want of service as heir of provision; and farther finds, That the title is sufficiently set forth in the summons, in so far as it is therein stated, that the pursuer, by virtue of the propinquity deduced, is the heir entitled to succeed to the estate of Dean under the procuratory of resignation narrated, in consequence of the death of the late Sir John Nisbett, (son of the granter Sir Alexander) without lawful issue, and the failure of the other substitutes : Finds, That the decreet of adjudication, said to have been obtained by Mr John Edgar, proceeding on the trust-bond granted by John Rutherfurd, the pursuer's grandfather, forms no bar to the present action: Therefore repels the first dilatory defence ; and in respect the defenders state, that they are not to acquiesce in this judgment, find them liable in expenses; allows an account thereof to be given in, and when lodged, remits the same to the anditor to tax and report; and appoints parties to be farther heard on the defence of res judicata.-Note.-It has been held in practice, that before a party can be allowed to insist in a reduction of infeftments, proceeding on the deeds of a former proprietor in the fee, in respect of a title of succession, as heir of provision under previous investitures, he must produce at least a general service as heir of provision to the ancestor upon whose death he claims to be heir. But this rule is not of universal operation. In most of the cases in the books, though not in all of them, the grounds of reduction were of the nature mentioned in the pursuer's case, where the right of action was vested in the granters of the deeds themselves, and where the grounds of it therefore could only be insisted in by a party who had taken up that right, and assumed a representation of the deceased. The case of death-bed is not of this description, and is admitted to be an exception. The case of reduction by an heir of entail, on the ground of contravention of the tailzie, or by the heir of a marriagecontract, on the ground of the deed being centra fidem tabularum, may probably rest on the jus crediti held to exist in such cases, though the form of the title is merely apparency. In the case of Polmood, the reduction was laid partly on death-bed, but partly also on a clause of return; and while the only title produced was a general service as heir male and of line, (not of provision), to Robert Hunter a remote ancestor, and not the last infeft under the deed of destination, to whom it had been found Adam Hunter could obtain no service on account of a bastardy intervening, it appears to have been held, that that general service was only useful as affording prima facie evidence of the pursuer's propinquity, and that he might have insisted in the reduction without any service. The present case is of a very peculiar The last infeft under the procuratory was the granter of the trust-deeds. The reduction is not laid on any ground which ever was competent to him; but on the ground that his own title was funditus bad, in respect that though served and in

nature.

effect of decrees in foro. Mr James Carruthers, pursuer, was not only a party to the process of ranking, but a purchaser, although under protest.-III. That all the parties in the petition of 6th June 1806, were creditors: That, in particular, Phillips was a creditor of the estate in sums expended in permanent improvements: That Burney was a creditor for similar improvements: That Mr Dickson was a creditor of Hardriggs, and of Christopher Carruthers: That Mr Little was entitled, by Act of Sederunt, 23d November 1711, to become a party to the petition, whether a creditor

or not.

This action being conjoined with the previous process of ranking and sale, the Lord Ordinary reported the whole cause on cases to the Inner-House; and their Lordships having remitted the process to Mr Stuart, accountant, to report what debts, if any, were due, and affecting this bankrupt estate at the date of the petition to the Court, for the second sale, in 1806, and at the date of the sale in 1811. Mr Stuart reported a balance of claims directly affecting the estate at 1806, amounting to L696, 1. 10, while the estimated value of the estate was only about £1700, and of claims directly affecting the estate in 1811, amounting to £891, 10s. 54d., while the funds were then estimated at £1981, 6s. 9d.

Lord Balgray considered the present a pure question of law and relevancy. Was the Court entitled, upon the evidence produced, to reduce the decree of sale of Longdyke? The case did not appear difficult. The pursuer appeared in two capacities, as heir of entail, and as purchaser. It was difficult to perceive his interest in reducing the deeree of sale, which was a surer and more advantageous title to him than the entail. But laying that out of view, the case was clear on principle. After the first decree of sale, while one shilling remained unpaid, the creditors were entitled to petition for the renewal of the sale. The pursuers had not brought a reduction of the grounds and warrants of the original decree; and if any improper claims had been sustained by the accountants, it would still be in the pursuers' power to object to them in the relative action of ranking and sale, still pending. Mr Stuart's report had satisfied his mind, that, in 1806, there were just grounds for renewing the proceedings in the ranking and sale, and that these grounds still subsisted in 1811.

Lord Craigie differed, and thought that if the only valid clainy against the estate in 1806, was the common agent's debt of £17, 2s., the petition then presented could not be considered a bona fide proceeding, when the estimated value of the property was taken into consideration. Although the common agent was a trustee for the creditors, he also acted as the officer of this Court, and for behoof of the heir, and was not entitled to sacrifice, without due necessity, his interests; and the heir himself, although his title under the decree of sale might be more advantageous to him than his title under the entail, could not, in justice to his son, and the succeeding heirs of entail, acquiesce in any irregular proceedings, by which the succession had been evicted from them.

The Court then pronounced as follows:

First Division.-Lord Ordinary, Newton.-Act. J. I. Henderson.-Alt. Gillies.-Thomas Ranken, S.S.C., Agent for Messrs Carruthers.-William Johnstone, S. S. C., Agent for himself, and J. Dickson.—Mr Hamilton, Clerk.

12th November 1830.

No. 2.-H. C. RUTHERFURD, Pursuer, v. NISBETT'S TRUSTEES, Defenders. Title to Pursue-Service-Reduction-Destination-Held, that on apparent heir-male and of provision, seeking to reduce a special service and consequent deeds of one who had been in possession of the lands, solely for the purpose of having it declared that the pursuer had right to serve himself in special, needs neither to set forth more than his propinquity (if not denied), nor to produce a service as heir of provision; and that an adjudication led against the pursuer's ancestor, subsequent to the destination by a prior ancestor, does not bar the reduction.

"The Lord Ordinary (12th May 1830), having considered the summons, and the first dilatory defence, and heard parties' procurators thereon, and having thereafter considered the mutual cases for the parties; in respect it is not denied, that the pursuer possesses the title of propinquity set forth in the summons, and is expressly admitted in the defences, that, but for the evacuation of the destination libelled on by the trust-deeds called for, the pursuer would have been entitled to succeed to the estate as heir of provision under that destination, and in respect of the special nature of this action of reduction, Repels the objection to the pursuer's title, founded on the want of service as heir of provision; and farther finds, That the title is sufficiently set forth in the summons, in so far as it is therein stated, that the pursuer, by virtue of the propinquity deduced, is the heir entitled to succeed to the estate of Dean under the procuratory of resignation narrated, in consequence of the death of the late Sir John Nisbett, (son of the granter Sir Alexander) without lawful issue, and the failure of the other substitutes: Finds, That the decreet of adjudication, said to have been obtained by Mr John Edgar, proceeding on the trust-bond granted by John Rutherfurd, the pursuer's grandfather, forms no bar to the present action: Therefore repels the first dilatory defence; and in respect the defenders state, that they are not to acquiesce in this judgment, find them liable in expenses; allows an ac. count thereof to be given in, and when lodged, remits the same to the anditor to tax and report; and appoints parties to be farther heard on the defence of res judicata.-Note.-It has been held in practice, that before a party can be allowed to insist in a reduction of infeftments, proceeding on the deeds of a former proprietor in the fee, in respect of a title of succession, as heir of provision under previous investitures, he must produce at least a general service as heir of provision to the ancestor upon whose Ideath he claims to be heir. But this rule is not of universal operation. In most of the cases in the books, though not in all of them, the grounds of reduction were of the nature mentioned in the pursuer's case, where the right of action was vested in the granters of the deeds themselves, and where the grounds of it. therefore could only be insisted in by a party who had taken up that right, and assumed a representation of the deceased. The case of death-bed is not of this description, and is admitted to be an exception. The case of reduction by an heir of entail, on the ground of contravention of the tailzie, or by the heir of a marriagecontract, on the ground of the deed being contra fidem tabularum, may probably rest on the jus crediti held to exist in such cases, though the form of the title is merely apparency. In the case of Polmood, the reduction was laid partly on death-bed, but partly also on a clause of return; and while the only title produced was a general service as heir male and of line, (not of provision), to Robert Hunter a remote ancestor, and not the last infeft under the deed of destination, to whom it had been found Adam Hunter could obtain no service on account of a bastardy intervening, it appears to have been held, that that general service was only useful as affording prima facie evidence of the pursuer's propinquity, and that he might have insisted in the reduction without any service. The present case is of a very peculiar The last infeft under the procuratory was the granter of the trust-deeds. The reduction is not laid on any ground which ever was competent to him; but on the ground that his own title was funditus bad, in respect that though served and in

nature.

feft, he should not have been so, being no heir. It is plainly impossible for the pursuer to serve heir to him, consistently with the nature of his case, neither can he be served heir in special to the preceding heir, because the infeftment of the late Sir John stands in the way. It might, indeed, but for a very late decision, be thought not to be incompetent (though the necessity is much more doubtful) for him to expede a general service to that ancestor, notwithstanding the previous services; and the Lord Ordinary should have thought so. But the House of Lords, by reversing the judgment in the case of Sir A. Cochrane v. Ramsay, have excluded this also; because, as the last Sir John's special service, as heir of provision, included a general service in the same character, it is now determined that a second general service to the same ancestor is incompetent. In the peculiar state of the present case, therefore, the pursuer never could get a title by service at all, as a title to maintain this action, because he cannot by possibility serve to the last Sir John. Neither could he get a good title by trust-bond; for the charge to enter, which is to stand in place of service, must require him to enter heir to somebody; and if it required him to enter heir of Sir John, the son of Sir Alexander, it would be liable to the same objection with a service to him in the same character, viz. that the title had been already taken up, and vested in another party by general service. If the point, therefore, would have been doubtful before, there seems to be no alternative now, in such a case as this, but to sustain the title of apparency, where the propinquity is admitted or proved. On the cases referred to by the defenders, the Lord Ordinary may observe, that that of Carmichael does not appear to be applicable, the question there being, whether the title on the investiture being quite open, in consequence of the total error in those made up by Sir John Carmichael, Miss Carmichael was not bound to enter fully to James Carmichael before she could challenge the onerous marriage-contract of Sir John; and as she must thereby have incurred a passive title sufficient to support the deed under the Act 1695, that question in reality involved the whole merits of the case. Neither is the case of Cunningham v. Glen in point; for if there had been a fee in George Cunningham, requiring to be taken up by service, it had not been taken up; and the decision only imports, that in such circumstances a general and not a special service was the proper course for founding the right to reduce the standing infeftment. The case of M-Callum v. Campbell is more applicable. But perhaps there is a material difference in this, that the entry in that case had been by precept of clare constat, which has not the same effects with service."

The defenders reclaimed, pleading-That, in consequence of the decree absolvitor, the pursuer wished to omit his grandfather in the progress, which could not be legally done, as the jus actionis had come into the person of the grandfather. The pursuer answered-That the defenders had shifted their ground, inasmuch as while they had formerly pleaded that the pursuer had not produced a service to Sir John Nisbett, (who, according to his account, was legally vested,) they had come now to insist that he should serve to his grandfather.

Lord Glenlee thought that, in order to determine on the adequacy of the title, it was material to consider the character of the action, and the terms of the conclusions. The latter were for nothing but reduction of the opposite service and trust, and a consequent declarator of the pursuer's right to be served in special as nearest heir male and of provision under the original deed, to Sir John, the second son of the destinator. There could be no objection to a reduction for the purpose of paving the way to a special service.

Lord Cringletie was astonished to see the want of a special service pleaded, when the very object of the action was to clear the way to a special service.

Lord Meadowbank gave no weight to the plea raised on the adjudication, but thought that it would be going a step farther than any former decision, to require for such an action no title whatever. The case of Cochrane, especially considering Lord

Wynford's speech, could not be regarded as settling the law. It was very doubtful if mere apparency would do. Looking to the cases of Polmood, &c., a general service appeared necessary. It might perhaps be desirable to have the opinion of the other Division. But he would bow to the opinion of the majority.

The Lord Justice-Clerk did not see how the Lord Ordinary could have done otherwise. If ever a point had been fully considered, it was that in the case of Cochrane, in which the law on the general question had been settled.

The Court adhered.

Pursuer's Authorities.-Ersk. III. 8. 34; IV. 1. 20. MeHunter morial for Archibald Douglas, p. 32, Nov. 19, 1761. v. Lady Forbes, 8th July 1812 Dr Ramsay v. Sir Alexander Cochrane, 11th March 1828. Ballenden v. Lady Essex Ker's Trustees, June 6, 1823; Sh. & D. June 17, 1825; W. & Sh. Authorities for Defenders.-Ersk. III. 8. 54. 74. 172; IV. 1. 20. Buchanan v. Campbell, February 21, 1793; M. 16,135. Edgar, July 21, 1738; Stair III. 6. 14. Crawford Randale, July 15, 1760; M. 14,066. Gordon v. Ogilvie, Feb. 17, 1760; M. 14,070, affirmed on Appeal. Hepburn v. Scott, July 25, 1781. Ballenden v. Ker's Trustees, June 6, 1823; Sh. June 17, 1825, W. & Sh. Kilk. 579. Tweedie v. Bell, 13th June, 1781; M. 16,079. Dowhill v. Kinfauns, July 1592; M. 16,081. Mure v. Mure, 11th February 1635; M. 16,088. Edmonstone v. Edmonstone, 16th March 1637; M. 16,089. M'Callum v. Campbell, 21st February, 1793. Cunninghame v. Glen, 27th February 1812. Carmichael v. Carmichael, 15th Nov. 1810.

Second Division.-Lord Ordinary, Moncreiff. Act. Cockburn, H. Robertson.-All. Keay.-Lockhart & Swan, W.S., and Scott, Findlay, & Balderston, W. S., Agents.-Mr Thomson, Clerk.

12th November 1830.

No. 3.-MAGISTRATES OF SELKIRK, Pursuers and Defenders, v. ADAM CLAPPERTON & OTHERS, Defenders and Pursuers. Melioration-Lease-Bona fides-Held, that a party having right to repayment of the price of an erection by him, as tenant, at the end of 20 years, if no new lease was entered into, and possessing by relocation for 20 years longer, paying only a nominal rent for the 49 years, is not entitled to the price of said erection: That having obtained a permanent title, afterwards reduced, his meliorations were, under it, made bona fide, till judgment in the reduction, and did, if permanent, form a claim against those evicting the subject.

In 1768, Middlemiss agreed with the Magistrates of Selkirk to erect a waulk-mill, under a tack for 20 years, at 2s. 6d. per annum, with a power of removal, and an obligation to pay the then value of the mill, if the tack should not be renewed. In 1781, Robert Clapperton, the purchaser of the mill and the tack, fened and built a dwelling-house on a piece of ground from the town. He and his heirs possessed from 1788 to 1817, on tacit relocation. And down to October 1823, he, his sons and others, made various additions to, and repairs upon the machinery, &c. On the 11th of June 1817, the defenders bought the subjects. And on the 24th of June 1817, the defenders obtained a charter from the pursuers, of two-thirds of the ground on which the buildings had been erected, although the whole machinery was all necessarily connected together as part of a waulk-mill and woollen manufactory. This charter was afterwards reduced by the following interlocutors, in an action of reduction, declarator and removing, brought by the Magistrates in May 1825:

"The Lord Ordinary (12th May 1827), having considered the revised cases, closed record, and whole process, finds, That the original right to the waulk-mill rests upon minutes of Council, dated in June and July 1768, whereby the Magistrates and

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