BIBLIO

terlocutor of the Lord Ordinary (Lord Medwyn), reclaimed against, and remit to his Lordship to decide the whole case, and particularly the pleas of prescription urged by Lord Fife, and to do therein as his Lordship shall see cause."

"18th December 1828.-The Lord Medwyn, Ordinary, ordains Lord Seafield, and his curator, to give in a minute, stating, without argument, the several titles, with their dates, upon which he founds his right to the teinds of his lands within the parish of Keith; and ordains the trustees of Lord Fife to give in a similar minute, stating the titles and their dates, upon which Lord Fife founds his prior feudal right to the titularity of the teinds of the said parish; as also, the several acts of possession which Lord Fife alleges of the said titularity, specifying the written documents by which such acts are established. Both the said minutes to be lodged by the first sederunt-day in January next."

"June 30, 1829.-The Lord Ordinary having resumed consideration of this case, finds that Lord Seafield has, in addition to the right to the teinds of Ardneadly and Muldarie already sustained, right by charter and sasine to the teinds included under the general name of Kempcairn, contained in the Crowncharter 1735: Finds, as to the rest of the lands of Kempcairn, and of Auchoynanie, that in virtue of possession under the personal titles, Lord Seafield and his predecessors have acquired an heritable right to the teinds of these lands, and that he is only liable to be localled upon as having such right; and, therefore, repels the objections made by Lord Fife to the locality, so far as regards Lord Seafield's lands, and decerns.-Note.-The Earl of Fife, at the pleading, founded his right as titular of the teinds of the Earl of Seafield's lands of Auchoynanie and Kempcairn on two different titles:-1st, Charter of apprising, with the sasine thereon, in favour of Robert Forbes, tutor to Craigievar, in 1666; and 2dly, Charter of adjudication in favour of Alexander Duff, in 1682, with sasine thereon in 1689. In the view of the Lord Ordinary, it would not aid Lord Fife, if he were to get the benefit of both these sets of titles. But it seems impossible, after disclaiming the latter title as not carrying the titularity of the teinds, to admit of his reverting to it again in this process. (See printed record, p. 11, and pp. 31-2.) The charter contained the patronage also, and yet it is unquestionable, that the family of Craigievar was, and continued to be patron. Robert Forbes, who was infeft in the teinds in 1666, conveyed, in 1682, the teinds of Keith and Grange, to Duff of Lettach; but there is no evidence of sasine ever having been taken upon this conveyance; and it appears to the Lord Ordinary very clear, that no infeftment was taken upon it, just because all parties were satisfied that no other right was in the person of the Craigievar family, than the long tack mentioned in the proceedings. The conveyance was sufficient, without sasine, to vest the right of tacks in the disponee; and the first use made of this right by Duff was in 1685, (as appeared in the question in 1808, between Lord Fife and Innes of Edingight,) relative to the teinds of Grange, when not founding on any absolute right to the teinds, but on the decreet of prorogation, whereof the right by progress now stands in my person,' as his title, he binds himself to grant the heritor a tack of bis teinds for the years yet to run of 10-19 years' tack in his person. It is objected, that William Duff, under his special service, 1706, took infeftment in the teinds, as if they could have been taken up by a special service, whereas his father had never been infeft in them; and this error never having been corrected by any subsequent titles, still leaves the teinds in the hæreditas jacens of Robert Forbes. As the defect in Lord Fife's plea appears to be want of possession under these titles, were he even entitled to claim the benefit of the charter and sasine 1666, as the commencement of his prescriptive title, this would not avail him, so that the objection need not be further noticed. From the history of the teinds of this parish, which was a parsonage, it is quite clear, that the title in 1666 was a non domino, and must be forfeited by prescription; but it does not appear that there are sufficient acts of possession condescended on as to any teinds in the parish, far less as to these teinds of Auchoynanie and Kempcairn; for in a question with an heritor pleading an heritable right to his teinds, the rule seems to be tantum præscriptum quantum possessum, and it is quite conceivable that,

under this title, Lord Fife might acquire by possession a feudal right as to the teinds of certain lands, but not of others. Giving full effect to the decree in 1694, the next exercise of the right of titular is not till the disposition of the teinds of Birkenburn in 1768, and the only other act is a proceeding in the locality, in which decree was pronounced in 1770, where Lord Fife's agent insisted on giving in a locality as titular, but in which he did not claim the privilege of a titular by exempting his own teinds till the other free teinds were exhausted. These acts of possession, (the first of them probably with the view to enforce the tack-duties payable as in right of the long tack,) seem quite insufficient to support a plea of prescription in a case where the possession, by the nature of it, should have been exercised annually; and thus it does not appear that these teinds have ever been acquired under the titles pleaded on by Lord Fife, and therefore still remain unfeudalized. Lord Seafield, on his part, claims an heritable right to the teinds of Kempcairn and Auchoynanie. To the first his title commences with a decree of adjudication in 1701, adjudging various lands, together with the teinds of the foresaid lands, (if any be,') which is now in Lord Seafield's person. Part of the lands so adjudged hold of the Crown, and of these Lord Seafield, in 1735, obtained a Crown-charter of adjudication, on which infeftment was taken una cum decimis dictarum terrarum (si aliqui sint). With regard to the rest, which hold of a subject superior, his title is still personal. As to the teinds of Auchoynanie, his title is also personal, commencing in 1757, by a disposition without infeftIt is not disputed that, since the property of both Kemp. cairn and Auchoynanie has been acquired, Lord Seafield's family have been in possession of the teinds, and this fact is a sufficient answer to the criticism on the term if any be.' There can be no doubt, that the right to the teinds in the Crown-charter 1735 is unquestionable; and even as to the remaining teinds claimed by Lord Seafield, as these had not been previously feudalized, the personal rights afford sufficient titles for prescription, which was accordingly run in virtue of the possession of the teinds by the heritor, without any interruption by the titular. As to the decision in the case of Grange, 1809, that case was so far different, that more acts of possession were pleaded upon, and the competition was with an heritor who claimed no higher right to his teinds than a tack. In the case of Ancrum, 1797, the heritor had no title of any kind.”

ment.

The Earl of Fife reclaimed-when the Court, 3d June 1830, ordered fresh cases, applicable to the then shape of the cause, and containing a correct statement of the acts of possession founded on by the Earl of Fife. At advising these,

Lord Glenlee was clear that Lord Fife must shew either a right a habente potestatem, or a prescriptive possession. There appeared no possession to interfere with Lord Seafield. Then, as to the question of habens potestatem, it all depended on Lord Saltoun's title, stated by Act of Parliament, 1609; and so expressly limited to tacks, that he could never, under it, have granted a title to the teinds themselves. If Lord Fife's pre

decessors were in a capacity to make up a title, it was the same as their having a title. But what possession had followed? Titularity was not an unum quid, of which, if you possess part, you possess the whole. The titular possessed the teinds only in so far as they were possessed by no one else. pear that any of the heritors, called by Lord Fife in the actions on which he founded his possession, were those of the lands in question.

It did not ap

Lord Cringletic thought that a personal right to tythes was a valid prescriptive title, provided they never had been otherwise feudalized. But in this case there must be a title a habente potestatem, or a title a non domino, with prescriptive possession. It was matter of doubt, whether the parsonage of Keith was not annihilated by 1606. There did not appear to be evidence of the erection of a parsonage after the restoration of the bishops. But these were not sufficiently enforced; and, therefore, till he saw his way, he could not venture to alter.

Lord Meadowbank had been puzzled; but he could see no sufficient evidence of possession.

The Lord Justice-Clerk thought, that, although the case was difficult, there were not sufficient grounds for altering the inter.. locutor. It would be very difficult for Lord Fife to make out his right through the adjudication of Balvenie. The teinds had never been feudalized in his predecessors; and it was not to be presumed that he had brought his actions as proprietor, and not merely as in right of the tacks. There was nothing in the decision in the case of Grange to affect the question regarding Lord Fife's titularity of Keith. He did not allege that he had been bona fide proprietor of the teinds, as titular; and so his acts of possession could not avail against a personal title to the teinds themselves, or the undoubted prescriptive possession.

The Court adhered.

Authorities for Lord Seafield.-1592, c. 181. Th. Acts, III., 650. 1609, c. 56, Th. Acts. IV., 404, App. p. 22. Connell on Tythes, II., 218, 417-427; 1649, c. 39; 1661, c. 9; 1693, c. 25. Arbuthnot v. Nicolson, 19th November, 1729; Fol. Dict. II., 103. Douglas's Peerage, (Duff).

Second Division.-Lord Ordinary, Medwyn.-For Re claimer, A. Wood-For Respondent, H. J. Robertson.-H. Inglis & Donald, W. S., and Mackenzie & Innes, W. S., Agents. -Teind Clerk.

22d January 1831.

No. 175.-BLINCOW'S TRUSTEE, Pursuer, v. ALEXANDER
ALLAN & Co., Defenders.

Process-Verdict-Supplementary Action-Reductive Conclusion-1696, c. 5.-Bill-Banker-A trustee having, on 1696. c. 5, raised a reduction of certain bills and indorsations by a bankrupt, in favour of his bankers, and claimed repetition of their proceeds, against which a cheque had been presented by the bankrupt; and the vrdict of a Jury having found that the whole funds against which the said cheque had been presented, were not paid in the ordinary course of trade, but for the purpose of an undue preference-Held, 1. That said verdict did not reach cash payments nor indorsations by a third party.-II. That, after verdict, a supplementary action, which contained no reductive conclusion, was incompetent, and could not be conjoined with the original action.-111. A point which had emerged after the judgment in the Outer-House, remilled to the Lord Ordinary for further inquiry.

John Pattison, jun. W.S., trustee on the sequestrated estate of William Blincow & Co. raised an action of reduction, declarator and repetition on the Act 1696, c. 5, against Messrs Alexander Allan and Company, bankers in Edinburgh, concluding, inter alia, for reduction of the indorsations of, and re-delivery of 30 bills, or repetition and payment of £1662, 6. 9., with interest, as the contents of said bills, that had been indorsed to, or discounted with, the said Alexander Allan and Company, defenders, by the said William Blincow, or William Blincow and Company, when in insolvent and bankrupt circumstances, and within sixty days of sequestration being awarded of their estates, in order to create an undue preference in favour of the defenders, by providing a fund or deposit in their hands, for the payment in full to them of a certain debt, consisting of the second and third of three equal instalments, of the sum of £2500, contained in a personal bond (for which his brothers, John and Valentine Blincow, were cautioners,) owing to them by the said bankrupt, in defraud of, and to the prejudice of the other just and lawful creditors of the said William Blincow, and William Blincow and Company. The pursuer also concluded for reduction of two other cheques, dated 7th May 1827, for the sums of £833, 6. 8. and £45, 8. 4., made and granted by the said William Blincow and Company, against the said fund or deposit so created in the defenders' hands, which sums were applied in extinction or payment of the said second instalment, and interest due

thereon, respectively. The pursuer also concluded for reduction of another cheque, dated the 12th of May 1827, for the sum of £838, 18. 4. also made and granted by the said William Blincow and Company, and which was presented to the defenders on the 14th May 1827, against the fund previously created or deposited in their hands, for the purpose of meeting it, the amount of said cheque being then applied in payment or extinction of the said third and last instalment, and interest due thereon. The 30th bill, for £155, was described by the pursuer as drawn by the said William Blincow and Company, and accepted by Valentine Blincow, payable to, and indorsed by the bankrupt to the defenders, in security of the said prior debt. In defence, it was stated, that the transactions sought to be reduced, were in the fair and ordinary course of trade. A record, by condescendence, answers and notes of pleas, was made up and closed, the parties agreeing, by minute, that it contained" their whole respective averments in point of fact, and their whole respective pleas in point of law." Cases were ordered; and thereafter, the First Division pronounced this interlocutor, 3d December 1828:

"The Lords Find, that, in the circumstances of the case, it was legal for the defenders, Alexander Allan and Company, to take from William Blincow the bond, dated the 28th day of September 1825 years, comprehending therein the sum of £500 Sterling, being a debt acknowledged to have been formerly due by William and Henry Blincow; therefore sustain the same, and assoilzie the defenders from the claim of £375 Sterling, made relative thereto; also Find, that the payment, on the 7th' day of May 1827, of the sum of £833, 6. 8. Sterling, and £45, 8. 4. Sterling of interest thereon, made to account of the second instalment of the foresaid bond, the same being past due from the 4th day of April preceding, and in the way and manner stated, was a legal and valid payment; therefore sustain the same, and assoilzie the defenders from the claim relative thereto, and decern; but Find, in the circumstances of the case, particularly the situation of William Blincow, and the third instalment of the bond not becoming due till the 4th day of October 1827, that the payment of £833, 6. 8. Sterling, and £5, 6. 8. Sterling of interest accruing thereon, made on the 12th day of May 1827 years, by means of a cheque or order, was not legal, and is to be considered as an evasion of the statute 1696; therefore sustain the reasons of reduction quoad said payment, and reduce and set aside the said cheque or order; and Find that the said sums are to be replaced to the account-current between the parties, in the same way and manner as if the said order or cheque had never been granted, and decern and declare accordingly Farther Find, that the defenders, besides being common creditors by bond, were also the ordinary bankers of William Blincow and Company, that they transacted their business, and discounted their bills in the ordinary way of trade, and that such transactions do not fall under the sanction of the statute 1696, and therefore assoilzie the defenders on that head, and decern; but Find, that they are bound to account to the trustee for the creditors of William Blincow and Company for their intromissions in the ordinary way, reserving the rights of the defenders as ordinary creditors, and also the rights of all parties interested, as accords of the law; and, for ascertaining the whole of the said matters, remit to the Lord Ordinary to proceed, and do farther in the case as to his Lordship shall seem proper, reserving all question of expenses until the final issue of the cause."

Parties having disagreed as to the true import and meaning of the judgment of the Court, in regard to the points falling under the remit to the Lord Ordinary, his Lordship appointed cases; and the Court, on the 12th June 1829, pronounced the following interlocutor:

"Upon report of Lord President, in absence of Lord Newton, Ordinary, and having advised the mutual cases given in for the parties, and heard the counsel for the parties, the Lords, of new, remit to the Lord Ordinary to inquire Whether the funds in the defenders' hands, against which the cheque for the amount of the third instalment of the bond was presented, were paid to the defenders in the fair and ordinary course of trade, or were deposited with the view, and for the purpose of affording to them an undue preference over the other creditors of the bankrupts ? with full power to his Lordship to proceed and decide, as to his Lordship shall seem proper."

Thereafter, on 2d December 1829,

"The Lord (Moncreiff) Ordinary, having heard the counsel for the parties on the remit from the Court, remits the cause to the Jury Court, to determine the question referred to in the interlocutor by the Court, contained in said remit."

In consequence of this remit, the following issue was adjusted and tried in the Jury Court, on the 18th March 1830:

"It being also admitted that, on the 14th day of May 1827, being within sixty days of the said sequestration, a cheque or order, dated 12th May 1827, by William Blincow and Company, for the sum of £838, 13. 4. was presented to the defenders, and the proceeds applied in payment of the third instalment of the said bond:- Whether, in terms of the interlocutor of the First Division of the Court of Session, dated 12th June 1829, the funds, against which the said cheque was presented, were not paid to the defenders in the fair and ordinary course of trade, but were deposited with the view, and for the purpose of affording to the defenders an undue preference over the other creditors of the said William Blincow and Company?"

The Jury found,

"In respect of the matters proved before them, that the funds, against which the cheque was presented, were not paid to the defenders in the fair and ordinary course of trade, but were deposited with the view, and for the purpose of affording to the defenders an undue preference over the other creditors of William Blincow and Company."

After verdict, it appeared that there were funds in the defenders' hands to the amount of £342, 8. 10., against which the cheque for the third instalment had been presented, and which arose from cash-deposits. The pursuer then raised a supplementary summons, in which he described the said bill for £155, (which, minus discount, amounted to £151, 7. 8.) in these terms:- "And lastly, there was also indorsed to them another bill by Valentine Blincow," &c. This bill the pursuer admitted had been retired by Valentine Blincow, the proper debtor therein, after William Blincow and Company's bankruptcy. The supplementary summons contained no reductive conclusion, but called for repetition of " any sums of cash or money" which might have been deposited to meet the said cheque within 60 days of the bankruptcy of William Blincow and Company, and concluded, that the supplementary action should be conjoined with the original one, in which the verdict had been obtained. To this conjunction, the defenders objected as incompetent, and maintained, that the action itself could not affect the cash payments. When the verdict came to be applied before the Lord Ordinary, the defenders pleaded, that the funds against which the cheque for the last instalment of the bond was presented did not consist wholly of the contents of bills payable to the order of the bankrupt, and indorsed by him to the defenders, as was alleged in the summons and record; but, 1st, Of an apparent balance of £132, 19. 9. which remained

at his credit in account, on 7th of May 1827, after payment was made of the second instalment; 2d, Of £221, 4. 8., being the proceeds or contents of certain bills indorsed by the bankrupt to the defenders on 14th May 1827; 3dly, Of £342, 8. 10. paid by the bankrupt into his account in cash; and, lastly, There was indorsed to the defenders, not by the bankrupt, but by Valentine Blincow, who was one of the obligants in the bond, a bill for £151, 7. 8., (minus the discount,) which was drawn by him upon, and accepted by William Blincow and Company. AnsweredIt is proved that deposits were truly created to the amount of both instalments of the bond, arising from proceeds of the indorsed bills, specified in the summons, and that the additional deposit of £342 of cash, the proceeds of bills discounted elsewhere, was only to replace part of the previous deposit arising from bills indorsed to the defenders, which had been drawn out to pay other prior debts due to the same defenders, no cash having been actually drawn out during the sixty days before bankruptcy. According to the true spirit of the bankrupt statutes, therefore, the first action affords sufficient grounds for decree being pronounced therein for repetition of the whole third instalment, the payment of which has been actually reduced and set aside.

After hearing parties on the original action, Lord Moncreiff pronounced this interlocutor and note:

"The Lord Ordinary (18th December 1830,) having considered the verdict of the Jury, and the whole state of this process, and having heard parties' procurators thereon, Finds, in terms of the verdict, with reference to the conclusions of the summons in this action, That the funds against which the cheque was presented were not paid to the defenders in the ordinary course of trade, but were deposited with the view, and for the purpose of affording to the defenders an undue preference over the other creditors of William Blincow and Company:' Finds, that under the verdict, as applied to the summons in this action, there are termini habiles for reducing the transaction by which bills enumerated in the summons were indorsed by William Blincow and Company to the defenders, and funds were thereby deposited in their hands, against which the cheque in question was made and presented: Finds it sufficiently ascer tained that there were funds in their hands, created by the indorsation of such bills, to the amount of £354, 4. 5., and that the pursuer is entitled to decree of reduction, and for payment to that amount; reduces, decerns, and declares accordingly, and decerns for payment of the said sum of £354, 4. 5., with interest at the usual rate then allowed by the Banks, from and after the 14th day of May 1827, the date of presenting the cheque granted as the amount of the third instalment of the bond, till the date of the execution of the summons, and thereafter, at the rate of five per cent. till paid: But, in respect that there is a difficulty in applying the interlocutors of the Court, and the verdict of the Jury, to the conclusions of the summons in this action, so as to give any decree to a greater extent, which difficulty the pursuer has endeavoured to obviate by a supplementary action, raised after the issue in this cause had been tried and a verdict returned, makes avizandum to the Court with this process quoad ultra, and appoints the parties to lodge, print, and box short minutes of debate, explaining their severel views as to this part of the cause-the minutes to be interchanged by the box-day in the ensuing recess, and printed and boxed by the third sederunt day in January next : Finds the pursuer entitled to the expenses incurred by him in the Jury Court and in the trial; allows an account to be given in, and remits the same to the auditor to tax, and to report; and reserves all questions as to the expenses incurred in the Court of Session.-Note.—The Court, by final interlocutors, sustained the defence as to the second instalment of the bond, but reduced the cheque drawn for the third instalment.

But a question remained as to the right of the defenders to retain the funds in their hands, independent of the cheque or the payment of it. Holding this to be a seperate case, the Court ordered an issue for trying it; and the issue, in conformity to the interlocutor, was so expressed as to apply to the whole funds against which the cheque was drawn. The verdict is in the same terms. After getting this verdict, the pursuer, on looking into his summons, thought it imperfect, or at least of doubtful effect. After the cheque had been reduced, the question was, whether the pursuer could also, under the act 1696, reduce the transaction by which the funds were deposited, so as to bar the plea of retention. And having this in view, he had concluded in his summons for reduction of the indorsations of a great number of bills particularly enumerated. It now turned out that a considerable part of the funds in the hands of the defenders, had not arisen from the indorsation of these bills by Blincow and Company, in as far as a sum of £342, 8. 10. had been paid to the defenders in cash; and the last bill mentioned did not exist in the form stated, though a bill of the same amount, accepted by Blincow and Company, and drawn by Valentine Blincow, who was no partner of the Company, but one of the cautioners in the bond, had been indorsed by him to the defenders. But the summons contains no conclusions which can be applied to the transaction by which the funds were deposited, otherwise than as they were supposed to arise from the indorsations of the bills, particularly stated by the bankrupts, Blincow and Company. To supply this defect, the pursuer raised a supplementary action, and moved that it should be conjoined with this action. The Lord Ordinary has seen difficulty in conjoining a new summons with an action which has already terminated in a verdict, and also thinks it impossible to make the summons in the original action effective to the extent of the terms of the verdict, without holding it to apply in a manner contrary to the admitted state of the fact. He has therefore thought it advisable to give decree as far as the summons clearly admits of, and quoad ultra to report the ease, in order that the Court may determine the effect of the verdict. If the Court should find the difficulty insuperable in this process, it will remain to be considered how far the case can be extricated under the supplementary action. There may be more doubt as to the application of the original summons to the bill for £155, than as to the cash-payment. But there being great difficulty in that also, the Lord Órdinary has thought it necessary to leave the point open."

Of the same date, his Lordship, in the supplementary action, pronounced the following interlocutor and

note:

"Having considered this supplementary summons, with the defences and closed record, and having heard parties' procurators in this and the relative process, and particularly on the motion of the pursuer, that this action should be conjoined with the previous process, in which a verdict of a jury has already passed, makes avizandum to the Court, and appoints the parties to lodge and box short minutes of debate for the information of the Court, as to the state of the cause.-Note.-In a note to an interlocutor of the same date, in the original process, the Lord Ordinary has adverted to the difficulties arising from the form of the summons in the original action, and the objection to conjoining them after verdict. If this supplementary summons should be considered entirely by itself, in so far as its object is not attained by the previous summons, the Court will then have to decide in what manner it ought to be proceeded in. It may be a question, whether the verdict in the other cause between the same parties, might be held by the Court as conclusive evidence in point of fact, excluding the necessity of farther proof, and whether they might then consider the case of the money which was deposited in cash, and the bill indorsed by Valentine Blincow, as making a case of law, to be judged of on the assumption of the finding of the jury in point of fact.

This may

be attended with difficulty. But supposing that difficulty to be overcome, there would still be this separate difficulty in point of form,-that the supplementary action contains no reductive conclusion; and this being a challenge, depending entirely on the act 1696, it may be impossible to reach the act of paying or depositing the money within the sixty days, without such a reductive conclusion."

Against the interlocutor in the original action, the defenders reclaimed, to the effect that £118, 19s. must be deducted from the sum of £132, 19. 9., decerned for by the Lord Ordinary, in respect that since his Lordship's judgment, two of the bills libelled on had been returned dishonoured: That these two bills amounted to £164, 0. 6. of which the defenders, through the bankruptcy of the obligants, had only drawn a dividend of £45, 1. 6. Answered,-The bills fell due before the record was closed. This averment was not before the Lord Ordinary, and is now made too late. The defenders, in their minute regarding the original action, maintained,-I. That the conclusions of the pursuer's summons only included such funds as had been created by means of the indorsations of the 30 bills, by the bankrupt to the defenders, and, therefore, that there were no termini habiles for extending the conclusions to such cash payments as had been made by the bankrupt within the 60 days, though to such the verdict might seem also to apply. Because, whatever might be the terms of the issue or verdict, they must be interpreted in conformity with, and never could go beyond the grounds of action-the nature and extent of which must be explicitly set forth in the libel. II. That the summons could not be held to apply to the bill for £151, 7. 8., accepted by William Blincow and Company, but drawn and indorsed by Valentine Blincow, and paid by him into the account, in respect that it could not be considered identical with the bill for £155, drawn by Blincow and Company, and accepted by Valentine Blincow, and that the conclusions were only directed against such bills as were payable to, and indorsed by Blincow and Company to the defenders, and not against indorsations by third parties. Answered,-I. The terms of the verdict extend to repetition of the whole third instalment, being the funds against which the cheque was presented.II. The defenders are barred from stating this objection, after having satisfied the production. There is no evidence that the said bill for £155, which the defenders have not produced, was drawn by Valentine Blincow. In regard to the supplementary action, the defenders pleaded,-I. It is incompetent to conjoin an action, in which the record has been closed, and the verdict of a jury returned, with a new action, proceeding on totally different species facti.-II. Cash payments are not struck at by 1696, c. 5, though made in contemplation of bankruptcy, if bona fide received; and the party so receiving them, is entitled to retention of them in extinction of a bond not payable till after the bankruptcy.-III. The supplementary summons, though founded on 1696, contains no reductive conclusion, and is therefore inapplicable to the said cash payments. Answered,-I. It is matter of everyday practice for the Court, even at the latest stage of a cause, and long after the record has been closed, to sist process until a supplementary action be brought and conjoined with the original, where the conclusions of the latter were not sufficient to warrant decree to the extent required by the justice of the case.—II. As an independent action, the cash payments may be reached under the supplementary summons, by reference to the verdict in the original action, as evidence that the whole funds against which the cheque for

the third instalment was presented, were paid contrary to the usual course of trade, and to establish an undue preference.-III. No reductive conclusion was necessary; for there was, after the verdict of the jury, nothing to be reduced. All that was then required was payment of the sums deposited to meet the third instalment. At advising,

Lord Balgray observed, regarding the £118, 19s., that the object of the reduction was to set aside 30 bills, on the ground that they had been improperly indorsed to Allan and Company, the defenders, who were bound to score and produce them. The Jury were to find, whether the bills had been indorsed in the usual course of trade or not. The verdict of the Jury found, that they had not been indorsed in the ordinary course of trade. Allan and Company must produce the bills. It is a petitory conclusion of the action, and arises after the reduction. When they are produced, it will be seen whether they have been fully paid, or if there is only a partial payment on some of them.

Lord Gillies thought, that as that point had not been before the Lord Ordinary, but had emerged since his Lordship's interlocutor, that it should be remitted to him for farther inquiry. The other Judges concurred.

With regard to the supplementary action,

one.

Lord Balgray was of opinion, that it was contrary to common sense, and all form, in the circumstances of the case, to allow a supplementary action and conjunction with the original The action proceeded on the act 1696; and if the supplementary summons could have been sewed into the heart of the original action, so as to have got the benefit of its conclusions, it might have been all very well. But as it was, it ought to be dismissed.

Lord Craigie.-Might not the pursuer be allowed to amend his libel?

Lord Balgray.-A summons, in the situation of the present, where it was faulty in essentialibus, could not be amended The defenders were wrong in saying that there was now nothing to reduce. The former reduction only set aside the cheque. Nothing was said as to cash paid in. Cash was struck at by 1696, just as much as bills.

Lord President concurred.

The Court then pronounced this interlocutor-In the principal action of reduction,

"Remit to the Lord Ordinary to hear parties on the defenders' claim for deduction of the sum of £118, 19s., upon which they have not been heard before his Lordship: Quoad ultra adhere to the interlocutor reclaimed against, and refuse the desire of the note, and decern; and allow decree to go out and be extracted ad interim, for the sum decerned and found due in the Lord Ordinary's interlocutor, under deduction of the foresaid sum of £118, 19s. and corresponding interest; reserving all questions of expenses incurred in the Court of Session."

And in the supplementary action,

"Sustain the objection to the supplementary summons, that it contains no reductive conclusion; dismiss the same, and decern; reserving to the pursuer to bring a new action of reduction and repetition, if otherwise competent; find the pursuer liable in the defenders' expenses, incurred in the supplementary action appoint an account," &c.

;

Pursuer's Authorities in Supplementary action.-Scott v. Napier; S. and D. VII. p. 338. Dougal v. Campbell; S. and D. VII. p. 460. Lyle and Trustee v. Balfour, &c., 17th No. vember 1830; Scottish Jurist, Vol. II. p. 10. Thomson v. Gilkison, 18th November 1830; Scottish Jurist, Vol. II. p. 19. Defenders' Authorities in Supplementary action.-Stair, IV. 40. 8. Lady Monboddo v. Lady Newmains, 3d July 1712; Mor. 12,151. Act of Sederunt, 1726. Act of Sederunt, 7th February 1810; 6th Geo. IV. c. 120. sec. 10. Webster v. Lang, 1st March 1823; S. and D. Sir John Johnstone's Trustees v. Elliot; Shaw & B. Vol. I., and decided in House of Lords, 22d June 1824; Shaw, Vol. II. p. 461. Scott v. Napier, & M'Dougall v. Campbell, ut supra. 6th Geo. IV. c. 120. sects. 2, 6, 10, 11, and relative Act of Sederunt, sec. 115.

First Division.-Lords Ordinary, Newton and Moncreiff.Act. Skene & Wilson.-All. Dean of Faculty (Hope), Whigham and Sandford.-John Pattison, Junior, W. S., and Allan and Bruce, W. S., Agents.-Sir R. Dundas, Clerk.

OUTER HOUSE.

21st January 1831.

No. 176.-MRS SCOTLAND or HAY, Pursuer, v. JOHN
DRYSDALE, Defender.

Poinding of the Ground-Heir-Calling of Parties-In a poinding of the ground-Held, I. That it was not necessary to charge the heir to enter before calling him—nor, II. To call a liferentrix and disponees.

The pursuer raised a summons of poinding the ground, founded on an annual-rent right over certain subjects in Dollar, granted by one John Drysdale, grandfather of the defender, to the pursuer's father, on which he had been infeft. To this action, she called as parties the supposed tenants of the subjects, and the defender, as grandson and representative of the deceased John Drysdale. In defence, it was stated-I. That the subjects sought to be poinded were not the subjects mentioned in the bond of annual-rent. II. That the defender, though called as representative of his grandfather, did not represent him; and though the action concluded, that he should let the subjects be poinded, and be subjected in payment of expenses, he had not been charged to enter heir. III. That by a disposition subsequent to the date of the bond, part of the subjects had been disponed to two persons, who were not called as parties to the action; and by the trust-disposition and settlement of the rest of the property, the defender's mother was constituted liferentrix, and his brothers joint fiars with her That as neither the disponees, nor the liferentrix, nor the fiars were called, the action fell to be dismissed. Answered-I. That the subjects were the same as those mentioned in the bond.—II. That as the poinding the ground was a real diligence, which did not conclude personally against the heir, no previous charge to enter was necessary: And that as it was not averred that infeftment had been taken either in favour of the purchasers, or on the trustdisposition, the pursuer was not bound to know of the existence of these dispositions, and so was not bound to call the persons who might derive right from them. The Lord Ordinary repelled the defences, in so far as they were founded upon the plea of the heir not having been charged to enter, and on the failure to call the disponees and liferentrix; but granted a diligence for the recovery of the titles, to ascertain the fact as to the identity of the subjects sought to be poinded with those conveyed in the bond.

:

Pursuer's Authorities.-Oliphant, 2d January 1667; Mor. 2171. Spottiswood, 9th December 1609; Mor. 2238. Lord Ordinary, Newton.--Act. Patton. Alt. Duncan M'Neill. Cuningha ne and Bell, W. S., and James Moore, Agents. Mr Pringle, Clerk.

TEIND COURT. 26th January 1831. No. 177.

The following augmentations were awarded:Foggo-Presbytery of Dunse-Old stipend modified 1809, 5 chalders, with a farther quantity equal to £105 Sterling, and