remaining £900 which they had disputed, and which formed the subject of the foresaid issue; and the said pursuers were entitled to a verdict for the said last mentioned sum, as due by the said defenders and said Banking Company, on the said 29th July 1827, the date mentioned in said issue; and the said counsel for the said pursuers did then and there pray the said Lords Commissioners, to admit and allow the said matters so produced and given in evidence for the said pursuers, to be, in the circumstances, conclusive evidence in favour of the said pursuers, to entitle them to a verdict under the said issue, and to bar the said defenders of their defence. But to this, the counsel learned in the law, of the said defenders, did then and there object and insist, before the said Lords Commissioners, that the same was not sufficient, nor ought to be admitted or allowed, to entitle the said pursuers to a verdict, or to bar the said defenders of their defence to the said action, founded on the said draft or order, as instructing a payment by them of £900 on the said deposit-account, or exclude them from producing it in evidence, seeing that it was not instructed that they were in the knowledge that Sunnyside, the place where it bears to be dated and issued, was not within ten miles of the office of the Bank, and of which circumstance, on the contrary, they were entirely igno rant. And the said Lords Commissioners did then and there declare and deliver their opinion to the Jury aforesaid, that the said several matters so produced, and given in evidence on the part of the said pursuers, were not sufficient to bar the said defenders of their defence aforesaid; and that to exclude the said draft or order from being received in evidence on the part of the defenders, as a sufficient voucher to discharge them of the said sum of £900 contained therein, it would have required to be instructed on the part of the said pursuers, that the defenders did not act ignorantly, and were in the knowledge that the said place at which it bears to be dated, and was issued, was not within ten miles of the office of the Bank at Greenock, and with that direction left the same to the jury-and the jury aforesaid, then and there gave their verdict for the said defenders. Whereupon, the said counsel for the said pursuers, did then and there, on the behalf of the said pursuers, except to the aforesaid opi. nion of the said Lords Commissioners, and insisted on the said several matters, as an absolute bar to the defence; and inasmuch as the said several matters so produced, and given in evidence on the part of the said pursuers, and by their counsel aforesaid, objected and insisted on, as a bar to the defence of the defenders, do not appear by the verdict aforesaid, the said counsel for the said pursuers, did then and there propose their aforesaid exception to the opinion of the said Lords Commissioners, and requested them to sign the said bill of exceptions, containing the several matters so produced and given in evidence on the part of the said pursuers, as aforesaid, according to the form of the statute, in such case made and provided: And, thereupon, the said Lords Commissioners, at the request of the said counsel for the said pursuers, did respectively sign this bill of exceptions, pursuant to the aforesaid statute, in such case made and provided, on the said 26th day of July, in the first year of the reign of his present Majesty." At advising, The The Lord Justice-Clerk thought the exemption in the schedule must be compared with the clause in the body of the act. Bank denied that they were in the knowledge of the distance. The onus probandi that they were, lay on the objector. Lord Glenlee agreed. The Bank could not be deprived of the benefit of the admitted payment, without libelling their actual knowledge of the distance, which had not been done. The Lord Chief Commissioner was of the same opinion. Prima facie evidence of knowledge, on the part of the Bank, was essentially necessary. The place was obscure. The onus was on the party who claimed, notwithstanding of an admitted pay Second Division, Jury Court.-Lord Ordinary, Medwyn.-Act. Jameson, A. Wood, Dunlop.lt. Lord Advocate (Jeffrey), H. Robertson, Aytoun.-Robert Welsh, and Pearson, Wilkie & Robertson, W. S., Agents.-Mr Thomson, Clerk. 15th December 1830. No. 116.-THOMAS BINNY, Pursuer, v. CAPTAIN JOHN Maills and Duties-Forehand Rent-Intimation-Held, that a tenant, to whom intimation of the right of an heritable creditor had been made before his rent fell due, was not entitled to resist payment on the ground of having (as he alleged) paid his rent to the debtor as a forehand rent, by agreement. Binny, heritable creditor of Grant, by disposition. in security, June 1827, for £6000, and infeftment in August 1827, brought an action of maills and duties in September 1829, against several tenants, and among them, against M'Lean for £210, the year's rent, down to Martinmas 1829, of lands rented by him from Grant, the debtor, his brother-in-law. M'Lean pleaded, in defence,-That, while his rent was a forehand rent, the pursuer had not intimated his right till long after; and that he had paid bona fide to Grant, or, bona fide retained in payment of certain claims the whole rent, except £80. The pursuer added, in reply, that M'Lean was interpelled by various diligences at the instance of other creditors of Grant, especially by an arrestment in July 1829, with furthcoming thereon. "The Lord Ordinary (July 6, 1830,) having heard parties' procurators, repels the defences pleaded by the defender, Mrs Jane Hannah or Grant; and remits to Mr Neil M Lean, landsurveyor, to inspect the subjects in question, possessed by Mrs Grant, and to report to the Lord Ordinary, quam primum, what is a fair rent payable therefor; and quoad the defender, Captain John M'Lean, decerns against him for the half-year's rent legally due at Martinmas 1829, and for the subsequent rents, in terms of the conclusions of the libel: Finds him liable in his proportion of expenses; allows an account thereof to be given in, and when lodged, remits the same to the auditor of Court to tax, and report.' The defender reclaimed chiefly as to expenses, praying that the should be found liable. pursuer Lord Cringlelie saw that the pursuer could not have known whether the whole rent had been paid or not. The defender's plea had been repelled. Lord Glenlee had no doubt that the defender was liable in the whole expenses of process. There was not a vestige of ground for subjecting the pursuer. The Lord Justice-Clerk saw that there had been a pluris petitio of a half-year's rent, which should affect the expenses. The Court "Adhere to the interlocutor of the Lord Ordinary, with this explanation, that the expenses found due to the pursuer shall not include any part of the general expense of bringing the present action, and shall be restricted to one-half of the other expenses occasioned by the particular litigation maintained by the defender, Captain M'Lean; and refuse the note quoad ultra." Second Division.-Lord Ordinary, Medwyn.-Act. Buchan-. an.-Alt. Wood, Ch. M'Dougall.-Pearson, Wilkie and Robertson, W.S., and George Munro, S. S.C., Agents.-Mr Thomson, Clerk. 15th December 1830. No. 117.-WILLIAM ELMSLIE, Pursuer, v. GRANT Maills & Duties-Intimation-Compensation-Held, that a creditor, bringing an action of maills and duties on a right prior in date to the rent pursued for, but not intimated till after that rent fell due, is not entitled to that rent, when compensated by the debts of the proprietor to the tenant. In this case, which related to that of Binny v. M'Lean, &c. of the same date, Elmslie brought an action of maills and duties, in September 1829, against the defenders, concluding for the rents due by them to Patrick Grant, the debtor, at Whitsunday 1829. They pleaded, interalia, That, down to the date of the action, when the right of the pursuer, dated in 1827, was intimated, for the first time, to them, the whole rents due by them were compensated by the debts of the proprietor, Patrick Grant. "The Lord Ordinary (6th July 1830,) having heard counsel for the parties; In respect that the defenders, Mrs Grant and Captain M'Lean, were not summoned to this action till September 1829, and that they were legally entitled to have settled their half-year's rent, due at Whitsunday preceding, with the common debtor, and therefore, are entitled to compensate the said half-year's rent with the claims they have to a greater amount against him, and for the discharge of which, pro tanto, it appears that they had respectively entered into possession of parts of the estate of Lakefield; sustains the defences, assoilzies the defenders; but, in the circumstances of the case, finds no expenses due, and decerns." The pursuer reclaimed upon the merits-the defenders as to expenses. The Court, holding that unless an offer were made to prove that, at Whitsunday 1829, there was no compensating debt due, the defenders must be assoilzied-refused both notes. Second Division.-Lord Ordinary, Medwyn.-Act. Buchanan-Alt Wood, M'Dougall.-Party, & George Munro, Agents. -Mr Thomson, Clerk. 16th December 1830. No. 118.-CAPTAIN ARCHIBALD CAMPBELL & OTHERS, Pursuers, v. MRS E. STEVENSON or M'INTYRE & OTHERS, Defenulers. Liferent and Fee-Trust-A person hating, by a trust-dced, conveyed his property to trustees, with directions to lay out and secure a part of the residue for the purpose of paying the liferent to a mother, and the fee to her child ; and having, by a subsequent codicil, revoked the part of the trust-deed relative to the fee of this part of the residue, which he now directed to be paid to a third party, and the interest to be paid to the residuary legatee of the previous trust-deed; and the mother having liferented the share, and on her death, her child having claimed another liferent, in terms of the codicil, which he alleged converted him from being the residuary legatee into a liferenter; and the claim being opposed by the third party, (the fiar under the codicil,) aoho maintained that the mother was, by the trust-deed, both liferentrix and fiar, and her son only a conditional fiar, and that it could not be the intention of the truster to constitute two life. rents on the same share-Held, that the child was a far by the trust-deed, and therefore, in terms of the codicil, entitled to his liferent-and opinion indicated that the mother was also entitled to her liferent. Captain James Stevenson died in May 1828, domiciled in Scotland, leaving a trust-deed and settlement, dated 31st January 1815, and a relative codicil, dated 9th December 1815. By the deed of settlement he conveyed his property, heritable and moveable, to the pursuers, in trust, for payment of debts, legacies, &c.; and, with regard to the free residue, he directed the trustees to lay it out in proper security, and to hold it in that state for a period of five years, during which they (the pursuers) were to make every inquiry (by advertisement, &c.) to discover if the testator's three sisters, or any of their lawful children, were in life, to the former of whom (the sisters) the residue was to be made over in liferent, and to their children in fee. But if, within the five years after the testator's death, neither the sisters nor their children appeared, then the trustees were directed to divide the residue equally, and pay it over to "my other relations after-named"-(then followed the names of twelve male and female relations.) The deed then contained the following clause with regard to two of the twelve shares : "But in regard that I intend that the shares of the said Elizabeth Stevenson, my niece, and of the said Frances Thomson shall be held by them in liferent, and that the fee thereof shall go to their children respectively, I appoint my said trustees to lay out and secure their shares accordingly, and in such a manner as that the fee or capital falling to the said Mrs Frances Thomson shall, after her death, go to her children by the said Dr James Stevenson." By the relative codicil, executed 9th December 1815, the testator made the following alteration on his previous settlement, in regard to the residue of his estate : "I, Captain James Stevenson, designed in the foregoing deed, do hereby declare, that I have resolved to revoke the same, in so far as regards the fee of the sums disposed to my residuary legatees, in the event that any of my sisters therein named, or their heirs, shall not appear as therein specified. And it is now my will and pleasure that the residue of my subjects, which I appointed by the said deed to be paid over to the said residuary legatees, shall remain under the power and management of my trustees, named in the said deed, and the interest thereof paid by the said trustees, by way of annuity, to the said residuary legatees during their natural life; and at their death I appoint the principal sum to be paid over by my said trustees to the said Elizabeth Stevenson, if in life, and failing thereof to her heirs, as their absolute property. And with this alteration, I declare that the said deed shall have full effect, and be good and valid, to the intents and purposes thereof. In witness whereof," &c. Captain Stevenson died in May 1818, and his trustees accepted and acted. None of the testator's sisters or their families were discovered within the five years; and at the expiry of that period, difficulties having occurred in the trust-management in regard to the construction of the settlement and codičil, the trustees raised a multiplepoinding, in which Mrs E. Stevenson or M'Intyre (the testator's niece,) appeared and claimed, inter alia, I." As, by the codicil of 9th December 1815, the fee of the whole of the residuary estate is vested in the claimant and her heirs, burdened with certain liferents, she claims that it shall be found and declared, that in proportion as the fee shall be disburdened by the death of any of the liferenters, the trustees are bound, immediately after such death, to account and pay over to the claimant, and her foresaids, the principal sums effeiring to such liferent, and retained to answer the same."-II. "Payment at present, not merely of the interest, but also of the principal sum effeiring to her own share of the residue, because her own liferent cannot be accounted a burden on a fee held by herself." The Court, by a judgment, 30th June 1826, found, inter alia, "1. That the said Mrs Elizabeth Stevenson or M'Intyre is entitled, as fiar of the residue, to uplift and receive, at present, the portion of the fund in medio corresponding to the annuity provided to herself by the deed of settlement, as being both liferenter and fiar, her liferent being in consequence extinguished. 2. Find that, upon the death of each of the remaining annuitants, the said Mrs Elizabeth Stevenson or M Intyre, and her representatives, will have right to the capital sum set free and disburdened by the death of each annuitant, until the whole of the residue of the fund in medio, set apart in the meantime for answering the annuities, shall be paid over to the said Mrs Elizabeth Stevenson or M'Intyre, and her representatives." In August 1828, Mrs Frances Thomson or Stevenson (one of the annuitants by the trust-deed,) died, when Mrs Elizabeth Stevenson or M'Intyre appeared and claimed the principal sum effeiring to Mrs Stevenson's annuity. The claim was opposed by the respondent, Captain Edward Rowland Stevenson, Mrs Stevenson's son, on the grounds-I. That by the trust-deed he was constituted the fiar of the sum liferented by his mother; and-II. That by the subsequent codicil, his fee was converted into a liferent, which he was entitled to before the claimant (Mrs M'Intyre) could be entitled to receive the principal. Cases having been ordered on the question, it was maintained by the claimant, Mrs M'Intyre-I. That upon a sound construction of the will and codicil, set forth in the proceedings, it must be held not to have been the intention of the testator to create two liferents in regard to the same legacy, and two liferents were not constituted by the testator: That by the original trustdeed, Mrs Thomson was not a mere liferentrix, but a limited fiar: That Mrs Thomson was the institute, and her child (the respondent) the substitute in the fee: That Mrs Stevenson having already enjoyed a liferent, it was not, and could not be the testator's intention, by the codicil, to create a second liferent in favour of the respondent: That Mrs Stevenson, and not the respondent, was the residuary legatee, whose right was converted by the codicil into a liferent. II. It is determined by the proceedings which have taken place in this action, and is res judicata, that no such claim as that now made by the said Major Stevenson, can be supported under the said will and codicil: That Mrs Stevenson's share being in the same situation, by the trust-deed, as the claim ant's, and the Court, by the judgment, 30th June 1826, having found that the claimant was the only liferentrix under the codicil, to the exclusion of her children, who, by the previous trust deed, were constituted the fiars, the same rule must apply in the present case. For the respondent it was maintainedThat the effect of the codicil, of 9th December 1815, was to convert the persons who were to have the fee of the residue divided amongst them, into liferenters of their shares: That the respondent, as the only child of Dr and Mrs Stevenson, was one of the heirs entitled to a share of the residue, by the trust-settlement, burdened with a liferent in favour of his mother; and the effect of the codicil was to convert him into a liferenter in regard to that share: That his mother, Mrs Stevenson, was not an institute fiar by the trust-deed, but a mere liferentrix: That the fee was in the trustees for behoof of the respondent: That the fee could not have been in Mrs Stevenson, unless directly conveyed to her and her heirs, in which case the respondent would have only had spes successionis: That it was of no consequence to the respondent that his mother drew a previous liferent, because, at all events, the respondent himself would have been entitled to draw it: That the judgment of the Court, of 30th June 1826, can in no sense be a res judicata here, as— S-I. The respondent was not in the field then; II. The whole of Mrs M'Intyre's children expressly concurred in waiving their rights of liferent in that action. What Lord Balgray was for preferring Major Stevenson. was the import of the rights under the trust-deed? By it, the the respondent had an undoubted fee. It was now clearly es tablished law, that, in trusts of this nature, the parents are not the fiars. The trustees hold the fee for the children. Now, if Major Stevenson was a fiar by the trust-deed, his right was con verted into a liferent by the codicil. Lord Craigie concurred. By the powerful machinery of a trust, property could now be destined in an infinite variety of ways. It was clear that the testator here at first intended to give the respondent the fee of the share, and the codicil necessarily converted him into a liferenter. In regard to his mother also having enjoyed a liferent of the share, it might have been legally her due; for, what was commoner than to convey a subject in liferent to two persons, and the remainder to the survivor of them. The Court then preferred the said Major E. R. Stevenson, to the extent of the liferent claimed by him in the said process of multiplepoinding, and found Major E. R. Stevenson entitled to expenses, &c. First Division.-Lord Ordinary, Meadowbank.-Act. Jameson. Alt. Rutherfurd.-Robert M'Kenzie, Pursuers' Agent. -John M'Kenzie Agent for Major Stevenson.-E. M'Millan, Agent for Mrs M'Intyre.-Sir W. Scott, Clerk. 16th December 1830. No. 119.-THOMAS ALEXANDER FRASER of Lovat, Pursuer, v. THE GLOBE INSURANCE COMPANY, Defenders. Bond, Heritable-Redemption, Order of-Clause-Construction-In an heritable bond and disposition in security, containing a personal obligation, obliging the borrower to repay the loan at Candlemas 1829, and also a clause of redemption, which declare that it should be competent for the borrower to redeem at Candlemas 1835; and it being also declared in the deed, that if interest on the loan were regularly paid, it should not be competent for the lender to call up the money till Canillemas 1835— Held that, in terms of the personal obligation, the borrower was entitled to repay the loan, and redeem the lands, at any term between Candlemas 1829 and Candlemas 1835, on premonition. In May 1828, Mr Fraser of Lovat borrowed from the Globe Insurance Company of London the sum of £60,000 Sterling, for which he granted them an heritable bond and disposition in security over the lands of Strichen. This bond, which was revised on the part of Lovat by W. M'Kenzie, W.S., contained, 1st, The usual acknowledgment of having borrowed the sum. 2d, The following obligation to repay: "Which sum of sixty thousand pounds Sterling, I bind and oblige me and my heirs, executors, and successors whomsoever, renouncing the benefit of discussing them in their order, to repay to the said Sir George Abercromby Robinson, Joseph Dorin, Frederick John Pigou, and James Taddy, and to the survivors or survivor of them, (any two of them being hereby declared a quorum, so long as more than that number shall be alive), and to the heirs of the survivor of them, in trust, for the use, benefit, and behoof of the said Globe Insurance Company, and to the assignees or assignee of the said trustees, or of the survivors or survivor of them, or of the heirs of the survivor of them; and that at and within the head-office of the said Globe Insurance Company in the city of London, and at and against the term of Candlemas, which shall be in the year 1829, with the sum of twelve thousand pounds Sterling of liquidate penalty, in case of failure in punctual payment; together with the interest or annual rent of the said principal sum, after the rate of five per centum per annum, also at and within the head-office of the said Globe Insurance Company, in the said city of London, and without any deduction or abatement whatever, for or in respect of any present or future taxes, rates, assessments or impositions, or any other matter, cause, or thing whatsoever, from the date thereof to the foresaid term of payment; and half. yearly, termly and proportionally thereafter, during the not-payment of the said principal sum, at two terms in the year, Candlemas and Lammas, by equal portions." : The bond then contained the following declarations “But declaring, that this bond is granted under this express condition and provision, that so long as the said interest or annual rent shall be punctually paid in the manner above stipulated and provided for, it shall not be competent to the said trustees of the said Globe Insurance Company, or their foresaids, to demand payment of the said principal sum till the term of Candlemas, which shall be in the year 1835; but if the said interest or annual rent shall not be paid punctually at the terms above mentioned, or at least at the termination of thirty days after each of the said terms, then, and in that case, the said principal sum shall be demandable and exigible at the said term of payment, or at the first term of Candlemas or Lammas thereafter, that shall happen, and shall next ensue, after such default of payment of the said interest, as said is: And further declaring, that it shall be optional to me and my foresaids, to make repayment of the said principal sum of sixty thousand pounds Sterling, either wholly, and at one time, or in such instalments or proportions, as I or they shall think proper-such instalments or proportions never being less than, or under the sum of ten thousand pounds Sterling.' Then followed the usual clauses, containing conveyance of the lands in security under redemption-obligation to infeft-procuratory of resignation-obligation of absolute warrandice-assignation to writs and titles-power to enter into possession-warrandice of writs, titles and rents-declaration of cumulative and corroborative rights-clause of registration; and then followed the precept of sasine, in græmio of which was engrossed the following clause of redemption: "But declaring always, as it is hereby expressly provided and declared, that the said lands and other heritages, with the pertinents before described and disponed, are and shall be redeemable by me and my foresaids, from the said Sir George Abercromby Robinson, Joseph Dorin, Frederick John Pigou, and James Taddy, or the survivors or survivor of them, or the heirs of the survivor, as trustees and trustee foresaid, or the person or persons in right of these presents and sums hereby due at the time, at the aforesaid term of Candlemas, or 2d day of February, which shall be in the year 1835, or at any term of Lammas or 1st day of August, or Candlemas or 2d day of February thereafter, upon premonition of the intention to redeem of six months, to be made by me or my foresaids to the said trustees, or the survivors or survivor of them, or the heirs of the survivor of them, at the head-office of the said Globe Insurance Company, in the city of London." The bond concluded with the usual clause of sale, &c. Upon this bond the Globe Company were infeft in the lands. In May 1829, Mr Morison, W.S., the pursuer's agent, intimated by letter to the agents in Edinburgh for the Globe Insurance Company, the pursuer's desire to have the interest on the loan reduced, and failing that, his resolution to obtain a more favourable loan elsewhere. In reply, the agent for the Globe Company wrote, declining to reduce the rate of interest below the 5 per cent. stipulated in the bond; and further stating, that the loan granted by the Globe Company was for a fixed term of years, within which it was not competent for the Globe Company to ask payment, nor for the pursuer to offer payment of the loan, &c. ;-that by the clause of redemption in the bond, the lands disponed to them in security were not redeemable till Candlemas 1835. The pursuer then raised the present action of declarator of redemption, which, after nar rating the tenor of the bond-the terms of the personal obligation to repay, and the absence of any clause restraining the borrower from paying up at any term after Candlemas 1829-concluded to have it found and declared, that the pursuer had an undoubted right to pay up and discharge the principal sum and interest at any term after Candlemas 1829, upon premonition; and, upon making payment, to have the lands declared to be freed and disencumbered. In defence, it was maintained by the Globe Company, That the bond (especially the clause of redemption therein,) precluded payment of the loan or redemption of the lands before Candlemas 1835: That the pursuer must follow out the order of redemption specified in the bond: That the clauses of the bond must be construed in connection, and with equity to both parties: That, in consideration of the large sum advanced upon rather a bare security, and allowing the money to remain for a certain number of years, the pursuer, on his part, agreed to the high rate of interest, and to the permanency of the loan. Replied for the pursuer,-That the security for the loan was ample, the free rental of Strichen being confessedly considerably upwards of £3000, and the property itself valued at upwards of 140,000: That the rate of interest on good securities, at the time of the transaction, was 4 per cent.: That the defenders' construction of the bond would defeat the terms of the personal obligation to repay, which was principal object of the bond, and would also render ineffectual the optional clause in the bond, giving the pursuer power to pay up in sums of £10,000, as it was in the power of the defenders to call up the whole loan at Candlemas 1835. the The Lord Ordinary (June 18, 1830,) pronounced an interlocutor, sustaining the defences, and assoilzieing the defenders from the conclusions of the action, &c. The pursuer having reclaimed against this interlocutor, Lord Balgray observed, that he had maturely and anxiously considered this case, both on its own account, and from the respect he entertained for the opinion of the Lord Ordinary, whose judgment was brought under review. He had found himself constrained to differ from the Lord Ordinary. This bond differed from most he had seen, and he could not avoid saying, that it was clumsily and awkwardly framed. In all the bonds of this kind which had come under his observation, the clause of redemption exactly tallied with the personal obligation. If the parties wished the loan to continue for a period of years, they made the end of that period the term of payment in the personal obligation, and in order to secure the regular payment of interest, introduced a clause, empowering the lender to call up his money sooner, on failure of regular payment of interest; and in the same manner with the clause of redemption, which must exactly correspond. Here the personal obligation required, and, of course, therefore, empowered the borrower to pay up the principal at Candlemas 1829, and this primary clause of the bond could not be overruled by the clause of redemption; and then, it was quite impossible to reconcile the optional clause in the bond with the defenders' construction. He was for altering. Lord Craigie differed, and although not free from doubt, was rather inclined to support the Lord Ordinary's interlocutor. All the clauses in the bond should be construed in relation to one another, and his impression, on an examination of all the clauses, was, that the parties intended the loan to continue for seven years, and with that view shaped the clause of redemption. The defenders were taken bound not to call up their money for seven years; and where there was a reciprocity of advantage there ought to be a reciprocity of obligation. But Lord Gillies, with every deference to the opinions of the Lord Ordinary and Lord Craigie, found it impossible to concur in the interlocutor complained of. Parties might assuredly stipulate for mutual advantages, but it did not follow that they must do so. Suppose a tenant were to stipulate in a 19 years' lease for a break at the end of seven years, it did not follow, if the tenant did not wish to avail himself of the right, that the landlord could break the lease at that term. It might be that the parties here misunderstood each other, and intended to impose mutual obligations in regard to the period of redemption. the Court had nothing to do at present with that, and must judge by the terms of the bond. Nothing could be clearer than that the pursuer was entitled to pay at Candlemas 1829. It was difficult to comprehend how the optional clause could be enforced on any other supposition; for, after seven years, the pursuer had no power to pay by instalments. Another important consideration arose from the clause of sale: Suppose the Globe Company were to sell the lands before the expiry of the seven years, what could they do with the money? According to their construction, the lands cannot be redeemed till 1835. Thus the loan might be paid up, and the lands still remain unredeemed. Lord President concurred with Lords Balgray and Gillies. "Alter the interlocutor of the Lord Ordinary complained of, and find that the pursuer is not bound to retain the sum contained in the bond, until the term of Candlemas 1835 years, and that he has an undoubted right and title to pay up and discharge the same, either wholly or by instalments, as specified in the obligation, for repayment of the money borrowed, contained in said bond, and decern: Find no expenses due to either party; and with these findings, remit the cause to the Lord Ordinary, to proceed farther as to his Lordship shall scem proper." First Division.-Lord Ordinary, Corehouse.-Act. Hope, Gordon and Dunbar.-Alt. Solicitor-General (Cockburn), Rutherfurd.-John Morison, W. S., Pursuer's Agent-GibsonCraigs, Wardlaw & Dalziel, W. S., Defenders' Agents. HOUSE OF LORDS. [Speeches taken from Mr Gurney's Short-Hand Notes.) No. 120.―JOHN MACTAVISH, Appellant, v. JAMES SCOTT, TRUS- dents. Lease-Landlord-Cautioner-Hypothec Circumstances in which it was held, reversing judgment of the Court of Session, that a cautioner for a tenant was freed from his obligation for the rent, in consequence of the landlord having neglected to make his right of hypothec effectual by sale in due time. Kenneth Mackenzie of Dundonnell, held the house, farm, garden, and offices of Seabank from the proprietor, Mr Scott, at the rent of £150, under a lease, dated 14th October 1815, expiring at Martinmas 1822. In 1818, Mr Mackenzie resolved to subset these subjects; and Mrs Fraser, wife of Captain Simon Fraser, with the view of becoming sub-tenant, addressed the following missive to Mr Macandrew, Mackenzie's agent at Inverness :— FRASERFIELD, 14th May 1818.—SIR, I, Mrs Jean Fraser, spouse of Captain Simon Fraser, residing here, with his consent, as my legal guardian, hereby offer you, Mr John Macandrew, &c., to subset the house, &c. of Seabank, as presently possessed by Dundonnell," &c., "the sum of one hundred and thirty-five pounds of yearly rent," &c., " and that for the unexpired term of Dundonnell's lease, commencing the first payment at the term of Martinmas 1819, for the crop of that year, and the possession of the house, garden, and offices, for the year from Martinmas next to said term, and so forth to the end of the lease. offer you a rent of seventeen pounds ten shillings Sterling, for the half-year's possession of the house, garden, and offices, from Whitsunday next in this present year, being the term of my entry, till the term of Martinmas next. I shall be bound by the I also whole clauses in the original lease, except as to payment of the rent, Dundonnell being bound, by acceptance hereof, to relieve me therefrom, and to maintain me in peaceable possession of these subjects during the currency of the subset, and to pay whatever damage I may incur in the event of the subset being challenged by the creditors of the proprietor, or any other deriving right from them. I shall find caution to your satisfaction, if required, for payment of the rent offered by me, and failing my doing so, oblige myself to remove from the premises at Martinmas next; Captain Fraser consenting, as my legal curator, to my entering into this transaction, is not to entitle him to any benefit therefrom, or interest in the farm; and your acceptance of these terms to be binding on your constituent, who shall be bound to execute a regular subtack when required. In witness whereof, I subscribe this offer, at Fraserfield, this fourteenth day of May 1818, and Captain Fraser also subscribes as my curator.' The following letter of guarantee was then granted for Mrs Fraser's implementing her part of the above missive : "INVERNESS, 26th May 1818.-We, Edward Fraser, merchant in Inverness, William Fraser tacksman of Borlum, and John Mactavish, writer in Inverness, hereby guarantee the rent of one hundred and thirty-five pounds, offered by Mrs Jean Fraser for Seabank, in manner stated in her missive,-the principal tacksman, Dundonnell, being bound to exercise his right of hypothec, before calling upon us to fulfil this obligation." (Signed) "JOHN MACTAVISH, per mandate from Mr Wm. Fraser. JOHN MACTAVISH. EDWARD FRASER." In consequence of this guarantee, Mackenzie, by letter, dated 29th May 1818, accepted of Mrs Fraser's offer, stipulating that he should be allowed to retain possession of a servant's house till Martinmas, and that a shade and some articles of furniture should be taken at a valuation, &c. The first year's rent became due on 26th November 1819, and not having been paid, the tenant's effects were sequestrated on the 30th of that month. A warrant of sale might have been obtained on 6th December 1819; but none was applied for till 26th August 1820. In September thereafter, a partial sale took place. A renewed warrant was applied for on 5th October, which was only granted on 21st March 1821; and on 10th April, the officer reported that no part of the sequestrated effects were to be found. The sum ultimately realised, after paying taxes and expenses, only amounted to £25, 7. 11, while it was alleged that the effects sequestrated amounted in value to between £400 and £500. In October 1820, Mackenzie obtained a warrant to cut down and secure the crop of that year, being for the second year's rent. And he sequestrated 786 stooks of oats and barley, a field of potatoes, and another of turnips, besides some articles of furniture and some farm stock, which, it was alleged, were greatly more than sufficient to pay the rent. On 21st January 1821, he applied for a warrant to sell; but so completely were the sequestrated effects dilapidated by that time, that the amount of the roup-roll was only £8, 4. 1; and, after paying the expenses of cutting and sequestrating, the debt, instead of being reduced, was increased £14, 17s. 11. For the third year's rent, which fell due at Martinmas 1821, Mackenzie applied for sequestration in January 1822, but he did not inventory the crop, &c. until 11th February, when there were found some implements of husbandry and household furniture. No warrant of sale was obtained until 11th May, and, on the 28th of that month, the officers, upon a search, reported no effects. By the provisions of the Act of Sederunt 1756, it is declared, |