parties interested, and for apportioning the same among them. Against these interlocutors the feuars presented petitions to the Court of Session, under 32 Geo. II. c. 62, sec. 5. The first of which, in respect that the application had not been made within the statutory period of twenty-one days, was refused as incompetent; and in the second, the Court (15th December 1829, Vol. II. p. 113,) altered the judgment of the Sheriff, and found that, instead of a servitude, the petitioners had a right of property in the water-side ground; and remitted to the Sheriff to have the same valued by a jury. On the 24th December 1829, the feuars of Clyde Street raised a summons of reduction, declarator and damages, in which they narrated the above interlocutors of the Sheriff, and concluded that they should be reduced and annulled, and the pursuers restored thereagainst, in integrum-1. Because by their feu-contracts, on which they have been infeft, they are entitled to

"a proportional part of the water-side grass opposite to Clyde Street, corresponding to the lands above feued, which is to be a common property to the vassals in Clyde Street in all time coming."

II. That all right to said water-side ground, except the superiority, was conveyed to the pursuers by said feu-contracts; and that they have always exercised over it the most open and unequivocal rights of proprietorship, whilst the defenders never interfered nor pretended any right of property to said ground-III. That whilst the pursuers produced before the Sheriff their titles to the said water-side ground, the defenders produced none whatever. In defence, it was maintained, in limine-I. This action is incompetent, in respect that the only mode of challenging the judgment of the Sheriff, upon the import of the titles prescribed by the statute, is by a petition to the Court of Session, and not by an action of reduction.-II. Supposing such a form of review were competent, it has not been done within the twenty-one days prescribed by the statute, so that the Sheriff's interlocutor is final, and incapable of being reviewed in any way. Lord Moncreiff, on hearing parties, ordered minutes of debate on the preliminary point, and made avizandum therewith to the Court. His Lordship added the following

"Note. As this matter has already been before the Court, and relates to the effect of a summary jurisdiction by complaint, it seems proper that it should be disposed of by the Court. The Lord Ordinary is of opinion, 1. That the action of reduction is not excluded by the judgment of the Court refusing a petition and complaint, after the statutory time, as incompetent; and, 2. That it is not excluded by the statute itself. On this last point, it appears to him that there is an important distinction to be made. The jurisdiction to decide on the effect of the heritable titles is given to the Sheriff for a specific object-viz. for carrying into effect the purposes of the act, in order to which it was essentially necessary that the damage done on the ground taken should be ascertained and valued at the time when the thing took place, and before the condition of the ground should be changed; and as discussions about the title might have deayed this, the Sheriff is empowered to decide such questions; and it is provided, that if any party be dissatisfied, it shall be competent to him to obtain redress within twenty-one days, by complaint; and that if no complaint be presented within that time, it shall and may be lawful to the Sheriff-depute, and he is hereby empowered, to proceed to the ascertaining of the amount of the damages,' &c. To the effect, therefore, of war

ranting and requiring the Sheriff to proceed, and even to order payment of the damage or value ascertained, his judgment may be made practically final, if not complained of in the way or within the time pointed out, although no finality is expressly declared. But the statute has gone no further. There is nothing in it which can be held to make the judgment on the heritable titles conclusive, as between parties alleging right to the property, to any other purpose or effect. It does not declare the judgment final at all; and it appears to the Lord Ordinary that it would have been a very strong measure indeed, to have made such a judgment of a Sheriff absolutely conclusive on the most important competitions of heritable rights. This is altogether different from the case of the election statutes. These statutes relate to matters of public law, not to matters of private right; and the summary jurisdiction given is directly given to the same Court, who might otherwise have tried the matter in another form. By the terms of the statutes, the decision on any complaint necessarily exhausts the whole matter, and ascertains the election made; and the whole object of the statute would be defeated, if another mode of challenge were competent after the statutory period. It is not so in this case. The whole purposes of the act may be obtained; and yet a question of title of the utmost difficulty and intricacy on its final merits may remain to be tried. Further, according to the terms of the clause, it may be doubted whether, if a complaint was presented within the time, and the Court decided on it, the Sheriff would be barred from proceeding, by an appeal to the House of Lords. If he would not, the case is again quite different from the case of election; and it would be singular if a man might have his estate adjudged to belong to another, without having the ordinary means of trying the merits of his title; but if an appeal would stop procedure, the object of the clause would be in a great measure defeated. The Lord Ordinary takes this view of the matter, supposing the provisions of the statutes to have been observed. But he has some doubts on that point also. The argument of the defender goes chiefly to this, that the pursuers are barred by their own acts and consents from objecting to the regularity of the proceedings; but the Lord Ordinary doubts whether any consent to a proceeding before the Sheriff Court could bar the review by this Court, if that proceeding has not been precisely in conformity to the statute, supposing that it would have been barred, if the statute had been followed."

The pursuers pleaded-I. The review of the Court of Session is not per expressum excluded, therefore it is not imperative on a party to have recourse to the summary and statutory mode of review-the words of the statute are "shall be competent." The finality declared in the statute, 32 Geo. II. c. 62, is not as to the Sheriff's judgment upon the import of the titles and rights of competing parties, but only as far as regards the sum ascertained by the jury as damages. -II. By 10 Geo. III. c. 104, only the value of the ground is to be determined by the Sheriff, when there is a dispute regarding it between the owners and the Magistrates. In the present case, there is no difference between the Magistrates and the owners;-the question is entirely between the several parties pretending right to the ground as to their respective titles and rights.-III. The Inferior Court proceedings are not in conformity with the provisions of the statutes, so that, assuming a statutory exclusive jurisdiction, they are not entitled to the benefit of it— 1. Because the statute prescribes that the petition to the Sheriff should have originated from the owners of the property, and not as in this case from the Magistrates. 2. The incidental petitions, by which this error was attempted to be remedied, were not in terms of the statute,-they did not set forth the title and interest in the property, but only referred to the former incompetent petition of the Magistrates. No

warrant in writing, for its service on all interested, was issued-no copy was delivered to the Magistrates -and no answers ordered or returned, in terms of the statute. The present defenders never presented petition at all, but entered appearance by a minute, long after various proceedings had taken place, and which was never served on any person.-IV. The 6th Geo. IV. c. 117, has no application to proceedings which took place long before it passed. Answered -I. The jurisdiction of the Sheriff is of a statutory creation, and cannot be reviewed in any other way than in terms of the statute, by petition to the InnerHouse within twenty-one days of the date of the judgment of the Sheriff.-II. The pursuers joined issue with the Magistrates on their petition, and thus homologated, by their conduct, the procedure as conform to the statute. They are not entitled now to defeat what has taken place, by taking advantage of their own error, in having originally improperly deviated from the statute.-III. The jurisdiction of the Sheriff and of the Court of Session, under the said harbour statutes, being exclusively statutory, the principles which regulate election cases must be held analogous and applicable to the present case.-IV. If an action of reduction were entertained in cases like the present, the greatest possible evils and damage to parties who could not retrace their steps would ensue, by opening up decisions of the Sheriff, after parties had acted on the faith of their being final. -V. The 6th Geo. IV. c. 117, sec. 84, renders every thing done in execution of the said Clyde navigation acts unimpeachable, after twelve calendar months from the time when the thing is done.

At advising,

Lord Balgray thought that the statute could be interpreted in consistency with law and the rights of parties, so as to protect their property, without carrying the jurisdiction of the Sheriff the length contended for by the defenders. I. By the statute, the Sheriff is to determine the prima facie rights of the parties. II. To remit to a jury to ascertain the value and damage; and, if not complained of within 21 days by petition to this Court, the Magistrates may take possession of the ground, and proceed with their works. This is necessary in improvements, whether it be the making of roads, canals, &c.; for if public roads were to be stopped till the ultimate rights of the parties were determined, the benefits of the statute would often be totally lost. It frequently occurs in road acts, that the titles of the parties, where the road goes through the property, are in dubio. The Sheriff is empowered by the statute to do so and so; and if his judgment is not complained of within a certain time, he must go on, and then his decision as to the value of the property, and possession of it by the trustees, is invincible; but that by no means decides the question of title. If the Sheriff says, on a talis qualis evidence, that the price of the land appropriated belongs to A, when really it should belong to B, this is not to affect the Magistrates in appropriating the property-nor to prevent the party having the proper right from afterwards obtaining payment. His Lordship thought the action competent, and that the preliminary defence should be repelled.

Lord Gillies.-The power is given to the Sheriff, per expressum, to make the proceedings valid regarding the value of the property. The price is to be given to the party who shall be found ultimately entitled to it. On the arguments maintained by the defenders, a judgment of the Sheriff might make a Duke of Roxburghe; for if a canal or a road were to be made through his estate, it might be disposed of, and declared to belong to another, and which, if not petitioned against within the statutory period, would be final. The idea was extravagant. The pursuers were clearly entitled to reduce.

Lord President concurred. Suppose that a younger brother

had got payment of the price of the portion of land appropriated, would the elder brother, who had been abroad, be prevented, when he came home, from claiming and obtaining it, because the Sheriff, under the statute, had, on the evidence before him, decided that it belonged to the younger? Undoubtedly not. Reduction would be quite competent, and the Magistrates, at the same time, safe in taking possession of the land.

The Court then pronounced this interlocutor :"Find the action competent, and remit to the Lord Ordinary to proceed in the cause: Find the defenders liable in the expenses incurred by the pursuers in discussing the preliminary defences; appoint an account thereof to be put in," &c.

Pursuers' Authorities.-32 Geo. II., c. 62. 10 Geo. III., c. 104. 49 Geo. III., c. 74.

Defenders' Authorities.-Statute, ut supra, and 6 Geo. IV., c. 117. Young v. Johnston, reversed in the House of Lords; Wight, p. 339. Robb v. Thomson, 1785. Tod v. Tod, 2d June 1826; Fac. Coll. Cook v. Mill, 17th December 1823; S. and D. Campbell v. Mill, 28th June 1823; S. and D. Craig . Mill, 11th February 1826; S. and D. Selkirk . Laidlaw, 10th June 1826; S. and D.

First Division.-Lord Ordinary, Moncreiff.-Act. Lord Advocate (Jeffrey), and D. M'Neill.-Alt. Dean of Faculty (Hope), More, and A. M'Neill.-James Burnside, W.S., and W. A. G. & R. Ellis, W.S., Agents.--Sir R. Dundas, Clerk.

25th January 1831.

No. 183.-JOHN REID MILES, Petitioner & Complainer, v. MATHEW FINLAYSON, Manager of the Ballindalloch CottonWorks, &c. Respondents.

Process-Petition and Complaint-5th Geo. III. c. 49.—A petition and complaint, stating that notes in contravention of the statute had been issued, but without mentioning when and where, &c.-Held to be too vague, and dismissed accordingly. A petition and complaint was presented to the Court of Session, stating that notes, in contravention of the statute, 5th Geo. III. c. 49, had been issued, but without mentioning when and where, &c. The Court dismissed the petition and complaint as incompetent against James Finlay and Company, as a firm, but reserved to Mathew Finlayson the manager, and Peter Mitchell the clerk or cashier of the said Company, to give in a minute on the practice and procedure in cases of usury, &c. whether on summons or petition and complaint--(Vide Vol. III. p. 8.) The respondents maintained-That the complaint was of a criminal nature, concluding for very severe penalties, and must have been prosecuted before the Justiciary Court, had it not been for the provisions of statute 5th Geo. III. c. 49, libelled on, which established a jurisdiction in the Court of Session: That the same strictness and precision must be observed in this petition and complaint as in a criminal indictment: That it was not stated when, where, and by, and to whom the cheques were issued: That this defect could not be remedied by condescendence or amendment of the libel. Such was the practice in cases of usury, fraudulent bankruptcy and forgery. Answered-The object of the complaint is to recover penalties in a civil Court for a statutory offence. The charge has been sufficiently and specifically enough set forth, as to enable the respondents to prepare their defences. It is stated that the complainer has received 36 unstamped notes for five and seven shillings, issued by the respondents; and the deductions are:-I. That the provisions of 5th Geo. III. c. 49, have been violated; and II. That the respondents are liable in the penalties imposed by

that statute.

The jurisdiction is by statute civil, and bears no analogy to the criminal jurisdiction exercised by the Court of Session in other cases. The complainer has a civil interest to the amount of the penalties. At advising,

Lord Gillies thought the petition and complaint too vague as to the facts-they were left to be got at by inference. It was too late to allow amendment. He thought the case should be dismissed.

Lord Balgray concurred-quomodo constat, that the cheques were issued in Scotland?

The Court pronounced this interlocutor :— "They find, that the complaint, as libelled, is too vague, and therefore dismiss it, and decern; find the complainer liable in the respondents' expenses, subject to modification; appoint an account," &c.

Respondents' Authorities.—(1.) In cases of fraudulent bankruptcy-Bell, II. p. 529 and 599. Aitken, 11th December 1810, F. C. (2.) Of forgery-I. Hume, 2d Edit. p. 1589. (3.) Of usury-Hume, I. p. 500, and Cases there quoted. Vide Lord President Blair's speech, (quoted in the printed papers of the present Case,) in Watt v. Ritchie, not reported. Johnstone, 15th May 1810. Morison, 24th November 1808, voce Usury, App. No. 2. Inglis and Company v. Paul, 20th January 1824, F. C.

First Division.-Act. Dean of Faculty (Hope) and Maitland.-Alt. Lord Advocate (Jeffrey, ) & Solicitor-General (Cockburn). John Cullen, W. S., and Gibson-Craigs and Wardlaw, W.S., Agents.-Sir W. Scott, Clerk.

25th January 1831.

No. 184.-Poor DOCTOR BATCHELOR, Advocator, v. JOHN M GILVRAY, Respondent.

Process-Proof-Interlocutor-6 Geo. IV. c. 120, sec. 40The Lord Ordinary having, in dismissing an advocation in which there had been a proof, omitted to specify in his interlocutor the facts which he found-The Court remitted to his Lordship to specify, in terms of the Act, the facts which he found.

The advocator raised an action before the Sheriff of Forfarshire, against John M'Gilvray, the respondent, treasurer of the Dundee Commercial Society, on the ground, that he had been improperly dismissed as salesman of the said Society. The Sheriff, after a proof, on the 3d November 1829, pronounced this interlocutor:

"Circumduces the term for proving; and having advised the proofs for the parties, memorials thereon, and whole process and productions, finds, that the defenders were justified in dismissing the pursuer from their service, in respect that he had not found proper security for his faithful conduct and intromissions to the extent of £100 Sterling: Therefore assoilzies the defenders, but finds no expenses due; decerns accordingly."

To which interlocutor the Sheriff-substitute subjoined a note in these terms:

"Note. When the pursuer was first appointed shopman, he found security; when he was appointed the second time, the committee became his security to the extent of £50; but the company were justly dissatisfied with the committee being the security for the person they had to superintend; besides, that the security was not to the amount required. After his dismissal, the pursuer became a candidate for the office without security, and was rejected. He then claimed and received a fortnight's wages, on account of his losing office. He did not lay claim to any thing more, or to his office for the year.

He did

not protest against, or oppose in any way, but, on the contrary, acquiesced in the defenders' proceedings. The other grounds

of complaint against the pursuer are not very satisfactorily established, and would have hardly warranted his dismissal.”

To this interlocutor the Sheriff depute adhered; and the complainer having advocated, Lord Newton pronounced the following interlocutor, 9th July 1830: "The Lord Ordinary having heard counsel for the parties; Repels the reasons of advocation; remits the cause simpliciter to the Sheriff, and decerns; but finds no expenses due."

The advocator reclaimed; and when the case came to the roll for advising,

Lord President observed, that the interlocutor of the Lord Ordinary did not seem to be in terms of the 40th section of the Judicature Act, 6 Geo. IV. c. 120, which enacts, "That when, in causes commenced in any of the Courts of the Sheriffs, or of the Magistrates of burghs, or other Inferior Courts, matter of fact shall be disputed, and a proof shall be allowed and taken according to the present practice, the Court of Session shall, in reviewing the judgment proceeding on such proof, distinctly specify in their interlocutor the several facts material to the case which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide; and the judgment on the cause thus pronounced shall be subject to appeal to the House of Lords, in so far only as the same depends on, or is affected by matter of law, but shall, in so far as relates to the facts, be held to have the force and effect of a special verdict of a Jury, finally and conclusively fixing the several facts specified in the interlocutor." The Sheriff finds no facts, and gives no reasons; though he issues a note, that is not part of the interlocutor. The Lord Ordinary just does the same. He simply repels the reasons of advocation.

The Court pronounced this interlocutor:

"Before answer, remit to the Lord Ordinary to specify in his interlocutor the facts that he finds proved, in terms of the Act of Parliament."

First Division.-Lord Ordinary, Newton.-Act. Dean of Faculty (Hope,) Fergusson and Mylne.-Alt. Deas.-John Jameson, and Brown and Miller, Agents.-Sir W. Scott, Clerk.

25th January 1831.

No. 185.-JAMES BARBOUR, Pursuer, v. THOMAS BELL, &c. Defenders.

Title to sue-Trust-deed-Disposition Omnium Bonorum— Circumstances in which, held, that a voluntary trust for creditors, not acceded to by them, did not denude the bankrupt, to the effect of rendering a subsequent disposition omnium bonorum, executed by him in prison, an invalid title to pursue for the violent profits of subjects conveyed by both deeds-the former trustees concurring, to the effect of securing the defenders against a second claim at their instance.

In June 1825, Underwood, assignee of Linton to a tack, &c. executed a general trust-deed for his creditors, whereby, after describing the subjects in question, he conveyed them,

"together with all right, title and interest, which I, my predecessors and authors had, have, or may have, can claim or pretend thereto, or to any part or portion thereof, in time coming: And also all right of action competent to me against Alexander Linton, wheel-wright in Lockerbie, my author, or the possessors of the said subjects, their cautioners, or others, for all violent profits arising to me, from having been interrupted and deprived in obtaining possession of the said property in due time: But declaring that these presents are granted by me, with and under the conditions and provisions, and to the ends and purposes following, viz." &c.

To this none of his creditors acceded. In Febru ary 1827, while incarcerated on caption at the pursuer's instance, he executed, in order to his liberation under the Act of Grace, by consent of the pursuer, a disposition omnium bonorum in his favour. On this

the pursuer brought an action against the defenders for the violent profits of the subjects, from Martinmas 1818 till Whitsunday 1825, in certain proportions. Bell, and his cautioner and attestor, pleaded, inter alia, That the disposition omnium bonorum gave no title, in respect that Underwood was denuded by the unreduced trust-deed of 1825.

"The Lord Ordinary (19th June 1830,) having heard parties' procurators, and considered the closed record and productions, repels the defences maintained by Thomas Bell, James Masterton, and Christopher Smyth: Finds them liable, as libelled, in violent profits for the period of the said Thomas Bell's possession of the premises, from the term of Martinmas 1818 until Whitsunday 1821: Finds the defenders liable in expenses; allows an account thereof to be given in, and remits the same to the auditor to tax, and to report: And appoints the case to be enrolled, in order that parties may be heard on the mode of ascertaining the precise amount of the said violent profits.-Note. -It does not appear to the Lord Ordinary, that the trust-deed granted by Underwood in the year 1825, and to which none of his creditors seem to have acceded, effected such a divestiture of the granter as to invalidate the disposition omnium bonorum forming the title of the pursuer in the present process. All that the defenders can require is, security against any claim that may be founded on that prior trust-deed, and that is sufficiently provid ed for by the proposed concurrence of the trustees under that prior deed. Upon looking at the Inferior Court process in the action of removing against Thomas Bell, the Lord Ordinary is satisfied that he is not entitled to the character of a bona fide possessor during the period libelled."

The defenders relaimed; but the Court adhered. Second Division.-Lord Ordinary, Fullerton.-Act. Jame son, Marshall.-Alt. Dean of Faculty (Hope), Gr. Bell.William Dalrymple, S.S.C., and William Martin, S. S.C., Agents.-Mr Thomson, Clerk.

25th January 1831.

No. 186.-DONALDSON'S TRUSTEES, Pursuers, v. FINDLAY, BANNATYNE & Co. Defenders. Process-Record-New Plea-Expenses-A defender bringing forward, for the first time, in his re-revised answers and notes of pleas, after a tedious preparation of the record, a plea in law, which, if well founded, would put an end to the action, and which rested on facts with which he himself was acquainted from the first-Held not entitled to introduce it, without paying the expenses incurred by the pursuer in the preparation of the record, reserving, however, the right of the defender to reclaim the said expenses, should the merits be ultimately decided in his fa

tour.

The pursuers brought an action of count and reckoning against the defenders. On condescendence and answers, the pursuers moved for, and were refused an interim decree. The Lord Ordinary then remitted to an accountant, with power to call for documents, &c. But the Court recalled the remit, until diligences granted should be exhausted. The condescendence and answers were thereafter revised, and the Lord Ordinary issued the following

"Note.-The conclusions of the libel do not seem so separate as to require three separate condescendences, or one condescendence divided into three distinct parts, answerable by the defenders separately. It must be very difficult to reduce the statement of a case of this sort to any thing like an ordinary condescendence."

When he had ordered the parties to be ready to say whether they would close the record, the pursuers moved for deletion of the first plea in law, attached, not to the revised, but, for the first time, to the rerevised answers, viz. that

"the respondent having been all along settled in England, animo remanendi, and having no Scotch domicile, the debt alleged to be due by him is to be dealt with as an English debt; and by the law of England, the pursuer's right of action would have been cut off by the statute of limitations."

But" the Lord Ordinary (16th December 1830,) having heard parties' procurators, Repels the motion made by the pursuer for deleting the first plea in law in the defenders' re-revised answers, reserving to the pursuers any claim of expenses they may have on account thereof-and allows the parties to amend their re spective papers, the pursuers to the box-day in the ensuing recess, and the defenders to the first sederunt-day in January

next."

The pursuers reclaimed, praying either for deletion, or for full expenses since the original defences, pleading-That the plea introduced for the first time into the defender's case in the re-revised answers, was, in truth, a totally new defence-a defence which would, if substantiated, exclude the action,-a defence which must have been obvious from the first, which arose out of the fact appearing from the very title of the original defences, and which did not need to be brought out by an examination before an accountant. The defenders answered,―That the plea was not a new defence, but just an additional plea strictly on the merits; and that its absence in the previous stages of the case had not occasioned any additional expense.

Lord Cringletie remarked, that a dilatory defence was one that merely delayed the action. A preliminary defence, such as that in question, was a different thing. It cast the action. But it could not be judged of till the cause was prepared by a record. Had the act permitted such a thing, it would have been advantageous to make up a separate record on each branch of the case. There was another circumstance to be observed, viz. that the party might not have been previously acquainted with this, which was an English plea, be it good or bad. The interlocutor should be adhered to.

Lord Glenlee would have been disposed to adhere, and let the record be closed before doing any thing, had no proceedings already taken place. But the defenders had failed to state at the outset, an objection which might have put a stop to the cause, and therefore they should pay all expenses occasioned by their delay and silence-just as if they had objected at a late stage of the cause, that the summons was unduly executed.

The Lord Justice-Clerk considered the point as an important one. There were certain cases in which the Court, although they felt a delicacy in disturbing the management of the cause by the Lord Ordinary, must interfere. The pursuers were entitled to expenses, total or partial. The record had been ordered in reference to the particular defences given in. The Court had previously corrected the proceedings as to a premature remit to an accountant. And at this late stage this new plea had been inserted. Now, although it was competent to introduce a new plea in law, yet that proposed truly involved a defence, which, if good, would make all the previous pleadings worth nothing. Therefore, according both to the spirit and to the letter of the Act of Parliament, previous expenses were due. They could not be reserved. That would do little good. The claim for expenses would be a very hopeless one, if the defences should be sustained in the end. The defenders, if successful, might claim back the expenses paid by them for the admission of the plea.

The Court

"Find that the defenders are entitled to add the first plea in law set forth in their re-revised answers, herein referred to; but, before doing so, find that they must, in the first instance, indemnify the pursuers of their previous expenses in preparing the record in this cause, reserving always to the defenders their right to reclaim such expenses, in the event of a decision on the merits in their favour, In so far varying the interlocutor of the Lord Ordinary complained of; and remit to the Lord Ordinary

to ascertain and modify such expenses, and to proceed farther, as to his Lordship shall seem just."

Authorities for Pursuers.-Pierce v. Turner, November 1828. Second Division.-Lord Ordinary, Mackenzie.-Act. Dean of Faculty (Hope,) Marshall.-Alt. Solicitor-General (Cockburn,) Ivory.-Andrew Scott, W.S., and Eneas Macbean, W. S., Agents.-Mr Thomson, Clerk.

26th January 1831.

No. 187.-JOHN B. GRACIE, Pursuer, v. WALLACE'S TRUSTEES, &c. Defenders.

Rents-Bona Fides-Payment-Entail-The reducer of titles in contravention of an entail having been found entitled to recover the rents due at a certain term; and a judicial factor having been thereafter appointed to manage the estate and collect the rents-Held, that indefinite payments, made by tenants to the latter, were to be held as applicable, in the first place, to the rents due at that term ;-that the tenants and intromitters with the rents were liable in legal interest,—and that the trustees of one of them were only liable qua trustees.

The defenders in this case were proprietors of the lands of Sheuchan, under titles obtained in contravention of the entail. The judgment of the House of Lords reducing their titles, was pronounced on the 31st of July 1822, without prejudice to any question in the Court of Session regarding the rents and their application. Thereafter, the lands were sequestrated and put under a judicial factor for a year, who drew from the tenants certain indefinite payments to account of rent. On the recal of the sequestration, decree of removing was pronounced, and a remit made to adjust the factor's accounts. That being done, the Court of Session found,

"That the defenders were bona fide possessors of the several subjects purchased by them, down to the period of the judgment of the House of Lords, on the 31st day of July 1822, and therefore repel the claim of the pursuer, so far as concerns the rents thereof for crop and year 1822."

This judgment having been appealed from, the House of Lords (22d July 1828,) found,

"That their Lordships having, on the 31st of July 1822, declared the title of the then appellant, John Vans Agnew, to have the lands in question restored to him, the possession of the respondents in the present appeal could not be deemed a bona file possession after that day, and the said John Vans Agnew ought to be considered as entitled to demand from the tenants of the lands the rents due from them, as if he had then first succeeded to the title under the entail under which he claimed, unaffected by any act to his prejudice; and their Lordships are of opinion that the representative of the said John Vans Agnew is entitled to receive the rents which fell due at Martinmas 1822, being after the judgment of this House: It is therefore ordered and adjudged, that the interlocutors complained of in the said original appeal, so far as they repel the claim of the appellant, as the representative of the said John Vans Agnew, to the rents due from the occupiers of the lands in question under the respondents, which became due at Martinmas 1822, subsequent to the judgment of this House of the 31st of July 1822, be, and the same are hereby reversed; and it is also declared, that the appellant is entitled to the rents which became due at Martinmas 1822, from the several tenants of the lands in ques. tion, without prejudice to any question, whether, if the respondents, or any of them, were in the personal occupation of any part of the lands in question, and had sown crops thereon, they were entitled to the benefit of such crops gathered before Martinmas 1822, although subsequent to the 31st of July preceding: And it is farther ordered, that the cause be remitted back to the Court of Session to give directions accordingly."

The claim under this judgment, at the instance of the pursuer as judicial factor, applied to two classes of

persons-viz. those who, at the date of the judg ment, had let their parts of the lands to tenants, and those who, at that date, were in the natural possession of the lands; and a variety of special details were discussed. At length,

"The Lord Ordinary (18th June 1830,) having considered the remit from the Inner-House, dated the 13th day of November 1828, and the revised cases for the parties, and whole process, finds, Primo, That all the defenders are liable in ordinary legal interest on the rents received by them, and which they are now to repay: Secundo, In respect to the defender Mr Maitland, finds no circumstances stated from which it can be inferred, that the money received from the tenants, by the judicial factor, was legally applicable to the rent of any, more than another, of the whole years or terms for which the judicial factor had power to recover the rents; and therefore finds, that the same must be applied equally and proportionally to the arrears to which Mr Maitland desires to apply it, and to the after rents receivable by the judicial factor: In respect to the defenders, the heirs of Mr Hannay, finds, That Mr Agnew appears to have adopted the lease of the lands evicted from them, and therefore must have paid, or allowed out of the sums stipulated in that lease, for improvements, after he became entitled to possession, if the same had not been paid by the said heirs of Mr Hannay: Therefore sustains their counter claim for said payments, in so far as sufficiently vouched, under deduction of £50 for the half year's rent which they drew and retain; sustains also their claim for public burdens, in so far as sufficiently vouched: In respect to the lands which were in grass on the 31st day of July 1822, finds, That a proportion of rent ought to be paid for the same, on account of the possession from the said date down to the time when the possession of the defenders ceased: And appoints the cause to be enrolled, that the above findings may be applied."

"10th July 1830.-Having heard parties' procurators in explanation of the interlocutor of 18th June last, finds, That the parties, actual possessors of the lards, are liable in the legal interest on their rents, as well as those who received rents from tenants: Farther, finds that there are no circumstances suili. cient to establish a distinction of bona fides in the case of Wallace's trustees."

The defenders reclaimed-the majority of them praying the Court to

"alter the foregoing interlocutor of 18th June last, in so far as it finds that the defenders are liable in ordinary legal interest on the rents which they received, and are now to repay; and that a portion of rent ought to be paid for the lands which were in grass on 31st July 1822, on account of the possession from that date till Martinmas thereafter; and also to recal and alter the interlocutor of 10th July last in toto; and to find, Primo, That the defenders are not liable in more than Bank interest on the sums for which they are now to account in name of rents or profits. Secundo, That they are not liable for any sum in name of rent, or otherwise, for the grass lands which were in their natural occupation during the period from 31st July to Martinmas 1822; and, Tertio, That the trustees of William Wallace, miller at Corsewall, were bona fide possessors until their right was challenged by the institution of an action of reduction thereof; and that, in case any sum be found to be due by them, they are liable for the same only qua trustees," &c.

The pursuer also reclaimed in reference to the retention of rent by Mr Maitland, and the counterclaim by Mr Hannay. The Court

"alter the second finding of the interlocutor complained of, and find that the indefinite payments, made by the tenants to the judicial factor, to account of their rents due prior to and at Martinmas 1822, must be held as having been applicable, in the first place, to the payment of the rents that had become due to the proprietor, John Vans Agnew, at the said term of Martinmas 1822; and in the question with the said defender, Patrick Maitland, remit to the Lord Ordinary to proceed accordingly, and in particular, to hear parties further on the said defenders' claim of