COURT OF SESSION.

INNER-HOUSE.

www.

28th January 1831.

No. 195.-JAMES JEFFREY, Raiser, v. DAVID CLYNE,

Claimant.

Multiplepoinding-Raiser--Error-Expenses-- Circumstances in which a previous error on the part of one afterwards raising a multiplepoinding, and an advantage derived by him from being allowed to raise it, were held to exclude his demand upon the fund in medio for the expenses of bringing the action into Court. Alexander Gall died 10th June 1828, (indebted to the claimant,) intestate, and leaving, as his nearest of kin, an imbecile brother Charles, and a sister Mary, married to Simms, the latter of whom, with his agent Milne, took possession of Gall's books, &c. Among these was found a bill for £20, dated 1st December 1827, accepted by the raiser, and holograph of, but not signed by the deceased. The claimant wrote more than once to Milue for payment of the debt due to him by the deceased. At length, in January 1829, he raised an action in the Court of Session against Simms, as vitious intromitter with the effects of the deceased-arrested on the dependence, in the hands of the raiser, for the debt as due by Simms, and obtained decree against Simms in June 1829. Having raised a furthcoming on the arrestment, he obtained decree therein, 11th July 1829, against the raiser and Simms, for the above debt. By a subsequent arrangment, Simms filled up his own name as drawer, and gave it up to the raiser for a new bill by him, holograph of, and indorsed to Milne, who afterwards retired it when due. The claimant charged the raiser on the furthcoming. He suspended. The bill was passed by the Lord Ordinary, who added the following

“Note.—It appears to the Lord Ordinary, that the respondent mistakes the state of his own claims against the complainer. He pleads, that the complainer, as the debtor of Gall, had no right to grant the bill to him, because Simms had no active title as representing Gall. This may possibly be true, but the respondent's arrestment and decree of furthcoming rest on the assumption, that Simms had an active title against Jeffrey; for otherwise Jeffrey was not debtor to Simms, and was not bound to pay any person suing as his creditor. Nor does it alter the case, that the decree against Simms was on the passive titles. For though he may have made himself liable on the passive title of vitious intromission, the respondent's own plea is, that he had no active title. He could only have an active title by the bill, and consequently, the respondent's whole claim against Jeffrey must rest on the bill, as giving a title to Simms. In order to have attached the debt as due to Gall, independent of Simms, the respondent evidently required a confirmation as executor-creditor, and if he had taken that course, it is very probable that Jeffrey could not have defended himself against an action for payment, on the ground of the bill granted to Simms. In this state of the case, the arrestment, being of money only due by a bill, and it being stated that the bill is in the hands of an onerous indorsce, and a multiplepoinding brought, though it is very possible that there may be a collusion between him and the holder, the Lord Ordinary does not think that, in a question with Jeffrey, the acceptor, he can assume any case of collusion, and therefore, he thinks it necessary to pass the bill; and it is also to be observed, that, though the respondent says he was willing to accept of the exact sum due, the charge has not been restricted to any definite sum, and yet it seems scarcely to be disputed Vol. III. Conducted by

SJ. W. DICKSON, W. H. DUNBAR, Advocates, JOHN
RYMER, W.S., and others, Members of the Bar

that the full sum of £30 charged for, was not due at the date of the charge; but though, for these reasons, the Lord Ordinary thinks that the bill must be passed, he is equally clear, that the charge being on a decree of this Court, it can only be passed on caution."

The claimant afterwards abandoned his charge. Milne threatened diligence on the new bill. And in consequence, Jeffrey raised a multiplepoinding. Milne objected to the competency, on the ground that he himself was a bona fide onerous holder of the bill. But the action was allowed to proceed, reserving the question of expenses, by an interlocutor, to which was appended the following

"Note. The summons is perhaps not quite so distinct as it ought to have been. But as it appears from the documents produced, and in particular from the interlocutor of the Lord Ordinary, passing the bill of suspension at the instance of the present pursuer, of the charge given to him on the decreet of furthcoming, that the sum there decerned for included the amount of the bill in question, as forming a debt due by the present pursuer to Simms, the original drawer; and as it also appears from that interlocutor, that the claim of the pursuer of the action of furthcoming rests on the averment of collusion between, Simms, the drawer, and the present holder, the Lord Ordinary does not conceive himself warranted in dismissing the present action."

Thereafter the claimant appeared, and not only objected to the claim of the raiser to expenses, but sought his own expenses against the raiser. Milne lodged no, claim. The raiser pleaded-That since he had brought the multiplepoinding, as debtor to Simms, and in consequence of claims by Milne and the claimant, as cre ditors of Simms, he was liable only in once and single payment; and that he was entitled to have, out of the fund in medio, his expenses in raising an action, the competency and necessity of which had been decided. The claimant pleaded, inter alia-That Simms, a vitious intromitter, could not receive and discharge a debt due to the defunct, to the prejudice of a lawful creditor: That the pursuer was in mala fide to arrange the debt with Simms, and was liable in the full debt, with expenses; and that, in so far as the claimant was concerned, the multiplepoinding was quite unnecessary.

"The Lord Ordinary (10th July 1830,) having heard parties' procurators, and considered the closed record, Finds the raiser liable only in once and single payment of the sum libelled: Grants warrant to the claimant, David Clyne, to uplift the fund in medio consigned, upon producing a confirmation as executor-creditor of Gall, if required by the raiser; and appoints the clerk to deliver to him the deposit-receipt for that purpose: Farther, in respect that the necessity of the present process must, as regards the said David Clyne, be held to be imputable to the raiser, and that the raiser has truly had the benefit of the decreet pronounced in it, repels the claim of the raiser to his expenses out of the fund in medio, and decerns; reserving to the raiser his right to move for his expenses against John Milne, or any of the other parties called as defenders; and to those parties their objections against such claim: Finds the raiser liable to the said David Clyne in the expenses incurred since the interlocutor of 20th January 1830: Allows an account thereof to be given in, and remits the same to the auditor to tax, and to report-Note.-In determining the question of expenses, the Lord Ordinary holds himself bound to inquire, first, to whom the necessity of the process is truly imputable; and secondly, who substantially derived the benefit from it. Now, it appears to him, that in this particular case, the raiser stands in both of those predicaments. For, in the first place, No. XV.

there could have been no competition, but for the circumstance of the raiser granting an indorsable document to Simms, without inquiring into his title as Gall's executor; and secondly, in virtue of the conclusion for once and single payment, and of the decreet of preference in favour of Clyne, in competition with the other defenders called, the raiser has clearly secured himself from all claim founded on the indorsable document which he had unwarily granted. Indeed, this seems to have been the very object of the process of multiplepoinding. If Clyne had held back from this competition as a creditor of Simms, decreet of preference must have gone as a matter of course in favour of Milne, and the raiser would then, according to his own admission, have been obliged to pay the same sum again, without deduction, to Clyne, on his producing a confir mation as executor-creditor of Gall; and since Clyne has appeared in competition with the other defenders called, and has thus afforded to the raiser the means of excluding, by the decreet in this process, all claim on the part of Simms, or his indorsee, it would seem contrary to every principle of equity to give that benefit to the raiser at Clyne's expense, which would be the necessary consequence of giving him his expenses out of the fund in medio. If the raiser has a claim for expenses, it must be not against Clyne, but against the other parties called as defenders."

Both parties reclaimed-each in regard to his own claim for expenses. But the Court refused both notes. Second Division.-Lord Ordinary, Fullerton.-dct. Ivory.-→→→ Alt. Boswell.-H. Inglis and Donald, W.S., and Party, Agents. -Mr Thomson, Clerk.

N. B. See, in relation to this case, Jeffrey v. Milne, 5th December 1829, and 11th February 1830, Sc. Jur. Vol. II. pp. 63, 237.

29th January 1831.

No. 196.-SIR JAMES MONTGOMERIE, Raiser, v. SIR J. M. NASMYTH, &c., Claimants.

Provision to Children-Held that a daughter-to whom, on her marriage, her father provides that she shall, at his death, have that proportion of his property which shall be equal to the portion or fortune which any other of his daughters shall have, or become entitled to, from or through him, before or after his death-is entitled to derive from her father's estate exactly the sume advantage, by annuity, accumulation of interest, or otherwise, which the others draw, or are entitled to, or have drawn from the estate.

In November 1813, an indenture was entered into among Sir James Nasmyth and his daughter Jane by his first wife, John M Queen, and Charles Murray, and Gilbert Mathison, in the prospect of marriage between Miss Nasmyth and MQueen. In providing for the former, the indenture bore:

"Whereas the said Sir James Nasmyth, on the treaty for the said intended marriage, did agree, that, on his decease, whether the said Jane Anne Nasmyth should survive him, or happen to die in his lifetime, such proportion of the property he shall leave at his decease, as shall be equal to the portion or fortune which any other of his daughters shall have or become entitled to, from or through him, by any means, either in his lifetime or after his death, shall be paid to, or vested in trustees upon the trusts herein after declared :-Now this indenture witnesseth, that, in consideration of the said intended marriage, the said Sir James Nasmyth for himself, his heirs, executors, and administrators, doth covenant and agree with the said Charles Scott Murray and Gilbert Mathison, their executors and administrators by these presents, that if the said intended marriage shall take effect, and whether the said Jane Anne Nasmyth shall survive, or shall happen to die in the lifetime of the said Sir James Nasmyth, then the heirs, executors, or administrators of him the said Sir James Nasmyth, shall, within the space of six calendar months next after his decease, well and truly pay or transfer, or cause to be paid or transferred unto, and legally vested in the said Charles Scott Murray and Gilbert

Mathison, their heirs, executors, administrators or assigns, such sum or sums of money, out of the estate, property or effects, which he the said Sir James Nasmyth shall die possessed of, or entitled to, or such share or proportion of such estate as shall be equal to the portion or fortune, which any one of his other daughters shall have or become entitled to, through or from him, by any means, either in his lifetime or after his death: And it is hereby agreed and declared, by and between all the parties to these presents, that in case the said intended marriage shall take effect, the share, portion or fortune, sum or sums of money, which shall devolve to the said Jane Anne Nasmyth, or which she shall become entitled to, of, in, or out of the estates of the said Sir James Nasmyth, in any manner howsoever, and the monies or property, which shall become payable or transferable to the said Charles Scott Murray and Gilbert Mathison, their heirs, executors, administrators and assigns, under the covenant of the said Sir James Nasmyth, herein before expressed and contained, shall be duly conveyed, transferred, or assigned to, and placed out or invested in the names of the said Charles Scott Murray and Gilbert Mathison, or the trustee or trustees for the time being, acting under these presents; and that they shall stand, and be possessed thereof and interested therein, upon the trusts, and for the purposes, and subject to the powers, provisos, and agreements herein after expressed and declared concerning the same: That is to say, in trust from time to time during the natural life of the said Jane Anne Nasmyth, to pay the rents and profits, interest and annual proceeds of the trust-estates, monics and premises, so to be conveyed, assigned, placed out, or invested as aforesaid, into the proper hands of the said Jane Anne Nasmyth, to and for her own sole and separate use and benefit, exclusively of the said John McQueen, and not to be subject to, but entirely free from his power and controul, debts, and engagements; and for which rents, profits, interest, and proceeds, the receipts of the said Jane Anne Nasmyth, notwithstanding her coverture, and whether sole or married, shall be, and are hereby declared to be good and sufficient discharges; and from and after the decease of the said Jane Anne Nasmyth upon trust, during the natural life of the said John M'Queen, to pay the rents, profits, interest, and annual proceeds of the same trust-estates, monies, and premises, unto the said John M'Queen for his own use; and from and after the decease of the survivor of them, the said John M'Queen, and Jane Anne Nasmyth, as to, for, and concerning all the said trust-estates, monies, and premises so to be conveyed, assigned, placed out, and invested, and hereby agreed to be settled as aforesaid, upon trust, for all and every the child and children of the said intended marriage," &c.

Previous to this, viz. in April 1807, Sir James had provided to each of his younger children £1000, and, by a separate bond, he obliged himself, and his heirs of entail, to pay each a farther sum of £1000,-both payable at the first term after his decease. In 1814, he settled £100 annually on his daughter Mrs Villiers, then married. The same he did to three other daughters, married in 1815, 1818, and 1828; and in November 1817, he executed a trust-disposition in favour of the raiser and the late Lord Alloway, conveying to them his entailed and unentailed estates, heritable and moveable. He died in December 1828, succeeded by the claimant. And the other purposes of the trust having been exhausted, the raiser, as surviving trustee, brought a multiplepoinding and exoneration, for the purpose of having the balance of the estate duly divided among the children of the former Sir James by two marriages, or among others having right. With this action the Lord Ordinary, 10th June 1830, conjoined one brought by Sir J. M. Nasmyth, for distribution of three years' free rent of the entailed estate among the younger children. Mrs M'Queen gave in a claim, which was answered by Sir J. M. Nasmyth.

The former pleaded-That, under the deed of covenant, she was entitled to be put on the same footing with any of the other daughters, and to have a share equal to that paid to, or exigible by any one of them, including interest as well as principal, and including also all legitim, dead's part, or other provisions which could be claimed by any of the younger children. The latter answered-That Mrs M·Queen's claim must be restricted to £2000, the largest principal sum which Sir James had become bound to pay to any of his daughters: That she could not justly rank on the sum specially set apart for their provisions: That as the younger children were all expressly excluded from legitim, so was Mrs M'Queen under her own marriage-contract; and that her claims must be restricted by the subsequent deeds of provision.

"The Lord Ordinary (8th December 1830,) having considered the closed record, and heard counsel thereon, Finds, that under the deed of covenant, the claimant, Mrs M Queen, is only entitled to the sum of £2000, payable six months after her father's death; repels her claim quoad ultra, and decerns; and in respect no expenses are asked, finds no expenses due."

Mrs M'Queen, &c. reclaimed, At advising,

The Lord Justice-Clerk could not concur in the interlocutor. The expressions in the marriage-contract, when fairly interpreted, meant just to provide for Mrs M'Queen a perfect equality with the other daughters. Sir James was uncertain what he could give to each, but stipulated that none should receive more than she. Supposing the other daughters to have had annuities, the value of these annuities would fall to be calculated. It was by no means the same thing to get merely £2000 at Sir James's death, and to get it with accumulated interest for 15 or 20 years, which alone would put Mrs M'Queen on the same footing with the other daughters.

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Lord Cringletie had no doubt as to the interpretation of the clause, viz. that the provisions were to be equal in all events. The words "portion and fortune" meant the same as provi. sion and tocher." The deduction of the interest would create the very greatest difference between the provisions. Qui citius solvit plus solvit. The ultimate amount of the fund did not affect the principle of division.

Lord Meadowbank would have been disposed to order cases, had there been any difference of opinion. The deed must be interpreted in the way most beneficial for all parties.

The Court

"Alter the interlocutor complained of: Find that, under the complainer's contract of marriage, to which her father, the late Sir James Nasmyth, became a party, she is entitled to claim a provision equal in amount and value to that which has been in favour of any of the other daughters of the said Sir James Nasmyth; and that, in ascertaining the amount of the provisions made to any of his other daughters, there must be taken into the account, the sums that may have been advanced or paid to such other daughters during his lifetime, in name of annuity, or of interest on the capital sums of such provisions payable at his own death; Reserving to the parties to be further heard on the complainer's claim of accumulated interest effeiring to such advances, as set forth in her pleadings; and with these findings, remit to the Lord Ordinary to proceed further in the cause as to his Lordship shall seem just."

Second Division. -Lord Ordinary, Medwyn. - For Mrs M'Queen-Dean of Faculty (Hope), A. Anderson. For Sir J. M. Nasmyth-Jameson.-Cranstoun and Anderson, W.S., and James Bridges, W.S., Agents.-Mr Rolland, Clerk.

1st February 1831.

No. 197. THE REV. DAVID WILSON, Pursuer, v. LIEUTENANT-COLONEL VANS PATRICK AGNEW & MRS ANN RoBERTSON, Defenders.

Teinds Warrandice-Stipend-Entail--I. An obligation by a su

perior to relieve the lands of“ all teind, parsonage and vicarage, and public burden, payable” forth thereof," and that for ever hereafter," covers all future augmentations of stipend.-II. A conveyance of the lands carries this obligation as an accessory, though not specially assigned.—III. The lands being mortified to the ministers of a certain parish, the minister for the time being, who is entered as vassal, and has paid the stipend, is entitled to pursuc an action of relief against the heirs of the granter of the obligation.-IV. The heir of the granter of the obligation having entailed his estates, including the superiority, the heirs of entail, as his representatives, are liable to implement the obligation, from the period when they respectively succeed to the estate.

By contract of fen, dated 25th January 1691, Andrew Agnew of Sheuchan disponed to Gilbert MacHallie, certain pieces of ground therein described, lying in the parish of Leswalt and shire of Wigton, for payment of a yearly feu-duty of £32 Scots; it being declared, that

"the said Gilbert M'Haffie and his foresaids are to quit and relieve the said Andrew Agnew and his foresaids of the samen teinds and public burdens that may be craved furth of the said park, longshot, and little croft above disponed, in all time coming."

Mr M'Haffie conveyed this property to Mr Walter Lawrie, minister of Stranraer, his heirs and assignees. A contract of feu and alienation was entered into between Andrew Agnew of Sheuchan, and Mr Lawrie, on 17th May 1716, which narrated the previous titles, and contained the following clauses : "And seeing the said Mr Walter Lawrie has made payment to me of the composition due for receiving him into the said lands, and of the bygone feu-duty, teind, and public due and unpaid, preceding Whitsunday last, whereof I grant the receipt, and fully exoner and discharge him and his foresaids of the same, for ever; and that it is agreed betwixt the said Andrew Agnew and the said Mr Walter Lawrie, that the foresaid teind, parsonage and vicarage, and public burden, should be liquidated and taxed to the sum of £10, 13. 4. Scots yearly, to be paid by the said Mr Walter Lawrie and his foresaids, by and attour the said sum of £32 money foresaid of feu-duty; and that the said Andrew Agnew and his foresaids should free and relieve the said Mr Walter Lawrie and his foresaids of all teind and public burden due and payable forth of the said lands in all time coming."

Therefore, Mr Agnew ratified and confirmed Mr Lawrie's title, and of new disponed the lands to him, to be holden of Mr Agnew and his foresaids, for payment of said feu-duty of £32,

"and sicklike of the said sum of £10, 13. 4. Scots yearly, payable in manner foresaid, in name of teind duty and public burden aforesaid. And I, the said Andrew Agnew, further bind and oblige me and my foresaids, to free and relieve the said Mr Walter Lawrie and his foresaids, of all teind, parsonage and vicarage, and public burden, payable forth of the said lands, for payment of the foresaid sums, and that for ever hereafter; with power to the said Mr Walter Lawrie to intromit with and receive from the tenants the teind and public, he always paying to me the duty aforesaid "

On this contract Mr Lawrie was infeft, and on 29th July 1736, he executed a disposition and deed of mortification, whereby he disponed and mortified the above mentioned subjects for behoof of his successors serving the cure as ministers of the parish of Stranraer; declaring, that as the disponces were to come in place of his heirs, therefore,

"to prevent any dispute that may arise between my superiors and them thereanent, my will and intention is, that each mini. ster of Stranraer, upon their succeeding to one another, whether by death, transportation, or otherwise, shall be obliged, upon the proper charges and expenses of the minister so succeeding,

to enter of new with the superiors, and to pay the same duties for every such entry as my heirs would have been obliged to do, if the lands and others above disponed had continued in the right line."

On the

Various precepts of clare constat were granted by Mr Andrew Agnew's successors to the successive ministers of Stranraer, in which the holding was declared in the same terms as in the above contract, but the obligation of relief was not repeated. In a process of augmentation and locality at the instance of Mr MacCubbin, minister of Leswalt, in 1805, the pursuer, who had succeeded to the incumbency of Stranraer, lodged a minute, craving that the stipend payable from the above lands might be laid on Mr John Vans Agnew of Shenchan, in respect of the obligation come under by his predecessor, but the teind clerk refused to give effect to the obligation in that process; and the pursuer being thereafter charged to make payment to the minister of Leswalt of the teind of said lands, (which had, in the meantime, been valued in a process at his instance,) from 1805 to 1817, both inclusive, amounting to £283, 6. 3., besides £6, 4. 8. of expenses, the pursuer paid these sums, together with £40, 3. 8. as his proportion of the expenses of the decreet of valution, and raised the present action in 1818, against the late John Vans Agnew of Sheuchan, for relief of the sums so paid, to which the pursuer had received an assignation from the minister of Leswalt. It being objected that the pursuer had no title to pursue, the Lord Ordinary, in July 1821, ordained John Vans Agnew to grant a precept of clare constat to the pursuer, on payment of a composition of £56 Sterling, on which precept the pursuer was infeft. other hand, the defender's title stood as follows: Andrew Agnew (the granter of the obligation contained in the contract of 1716,) was succeeded by his son, Robert Agnew, whose only child, Margaret, was, in 1753, married to John Vans of Barnbarroch. In December 1757, a deed of tailzie of the estates of Sheuchan and Barnbarroch was executed by John Vans and his father-in-law, Robert Agnew, on which infeftment followed in May 1775. Under this tailzie, which had been duly recorded, Robert Vans Agnew, the son of John Vans, succeeded in 1780. Robert Vans Agnew was succeeded in 1809 by his son, John Vans Agnew, against whom the present action was raised, and afterwards, on his death, transferred against his son, Colonel Vans Agnew and Mrs Robertson, his executrix. The Court, on 13th June 1823, repelled the defences, and decerned in terms of the libel; but the defenders having reclaimed, and stated various new pleas, the case was remitted to the Lord Ordinary, and these pleas allowed to be received, on payment of all past expenses. The pursuer pleaded-I. The contract, 1716, is sufficient to bind the granter, and all the heirs succeeding to him in the estate of Sheuchan, for implement thereof. The defender, Colonel Agnew, as well as his late father, represent Mr Andrew Agnew; and the other defender, Mrs Robertson, is liable to the extent of her intromissions. The heirs are liable for the period anterior as well as subsequent to their succession.-II. At all events, the contract 1716, and renewals of the investitures, render said contract binding on the superiors,

though they should be only heirs of tailzie or singular successors-Vide Diet. voce Personal and RealIII. It is only the glebes modified to ministers, in terms of law, which are teind free-1621, c. 10; but if the defender maintains that the lands in question come under that denomination, it is open to him to try the point with the proprietors of the teinds.-IV. The expense of the process of valuation is due, as being necessary to ascertain the extent of the obligation in which Andrew Agnew had subjected himself and his heirs.-V. The right of relief passed to Mr Lawrie's heirs and assignees along with the lands, without the necessity of any special assignation.-VI. There being no conveyance of the teinds by the contract 1716, but a mere obligation of relief, that obligation extends to all future augmentations of stipend, as well as to what was then payable.-VII. The action is properly transferred against Colonel Vans Agnew. The original action was brought against his father, as representative of Andrew Agnew, and it is transferred against the defender as his father's representative, "to the effect the pursuer may have such action and execution against him" as he would have had against his late father. The defenders pleaded,-I. The clause of warrandice libelled on is so conceived as to be personal to Andrew Agnew; for although it obliges him and his "foresaids," there is no antecedent in the deed to which the term foresaids can apply.-II. Neither the late John Vans Agnew, nor the defenders represent the said Andrew Agnew, nor could the heirs of entail. though liable, be subjected for the period prior to the succession opening to them respectively.-III. The subjects in question having, by Mr Lawrie's deed, been made a glebe, are exempt from payment of teinds. -IV. The late John Vans Agnew was no party to the process of valuation, and takes no benefit by it.— V. The clause of warrandice founded on not having been assigned by Mr Lawrie's deed, the pursuer has no title to insist in this process.-VI. The said clause of warrandice bears reference merely to teinds then payable, and not to minister's stipend or subsequent augmentations.-VII. The action being transferred against the defender, Colonel Agnew, solely as his father's representative, he cannot be made liable as the representative of Andrew Agnew. The Lord Ordinary (Newton,) reported the question on cases to the Court, with the following note :—

"The Lord Ordinary is disposed to think that none of the separate defences can have the effect to preclude the consideration of the question as to the import of the warrandice; but he entertains very considerable doubt, whether, considering the conveyance which the deed contains, of a right to intromit with the teinds, the clause of warrandice which follows, can operate an obligation to relieve from future augmentations of stipend."

Lord Balgray.-There are just three questions here:-1st, Whether Mr Wilson, the minister, is in titulo to pursue? 2d, Whether the defenders are liable? 3d, What is the nature and extent of the obligation contained in the contract of 1716? As to the first point: The mortification by Mr Lawrie was correctly executed and feudally carried into effect. He was extremely well advised on the occasion. To prevent all objection on the part of the superiors, he declared that the successive ministers should be the vassals in the lands, and should be bound to enter as such on their succeeding to the incumbency. Therefore, there is not the least doubt that the minister is the vassal, and properly entered as such. 2d, As to whether Colonel Agnew re

presents the granter of the obligation-Will any one say that the heirs of entail, by getting the entailer's property, do not represent him in his obligations? They are liable to the full extent, and for ever, for all his debts and obligations. Besides, if an heir of entail takes up a superiority, he is liable for all the obligations incumbent on him by the act of the original superior. 3d, As to the nature and extent of the obligation, a great deal of law has been urged, which is not very applicable. The question was well considered in the case of Cuningham v. Cuthbertson. There have, no doubt, been cases in which the Court have gone a little too far, and found that, if there be no express warrandice against future augmentations, these are not covered by the obligation; but in the last well advised case, the Court held, that synonimous expressions may be equally effectual, and that if such appears, from the acts and deeds of the parties, to have been their ination, augmentations will be included in the warrandice, though not expressly mentioned. There is, however, no room for such a plea here, though otherwise applicable. If the teinds had been conveyed, the tack-duty or teind-duty must have been first allocated, when an augmentation was awarded; but there is here no conveyance of the teinds. The agreement was nothing but a common contract of insurance, to relieve the lands of teind on payment of a certain sum.

Lord President agreed. All the heirs represent the maker of the entail.

Lord Craigie.-The nature of this obligation was such as could not be cut off by the negative prescription. It was a fair bargain between the parties. The only doubt I have is as to the expenses of the valuation.

Lord Gillies.-If the defender, Colonel Agnew, takes no benefit under the valuation, he cannot be bound for the expenses.

The Court,

"Repel the defences (with the exception of that against the conclusion for payment of the expense of the process for valuing the teinds of the mortified lands in question), and decern and declare, in terms of the libel, against the defender, the executrix of John Vans Agnew, as such, for the arrears in question, from the year 1809, when the said John Vans Agnew succeeded to the estate of Sheuchan, to the term of Whitsunday 1825, the term previous to his death, when the other defender, Patrick Vans Agnew, succeeded to the said estate; and against the said Patrick Vans Agnew for the arrears since the said term of Whitsunday 1825, and for the stipend in future: Find the defenders, jointly and severally, liable in the expenses incurred by the pursuer since the date of the interlocutor finding the pursuer entitled to previous expenses; appoint an account thereof to be put in, and remit to the auditor to tax it, and report; reserving to the defenders their relief against each other as accords; and they remit to the Lord Ordinary to hear parties farther on the expenses of the process of valuation of teinds, and to do therein as shall be just."

Pursuer's Authorities.-(1.) Campbell, 29th November 1815, F. C. Orr v. Watson, 16th February 1634; Mor. 9767. Forbes v. Fullerton, 23d March 1636; Mor. 9771. (5.) Kyle, 30th December 1821, F. C. (6.) Earl of Hopetoun v. Jardine, 3d July 1811, F. C. Low v. Bethune, 31st January 1821. Ker v. Duke of Roxburghe, 24th November 1821. Cuningham v. Cuthbertson, 27th January 1829, S. and D. (7.) Earl of Dumfries . Campbell, 13th June 1795.

Defenders' Authorities.-(6.) Plenderleath, 31st January 1800. Alexander v. Bruce, 9th June 1812. Earl of Hopetoun . Copland, 8th December 1819.

First Division.-Lord Ordinary, Newton.-Act. Baird and Marshall; J. R. Skinner, W. S., Agent.-For Colonel Agnew-Jameson and Shaw; Tod and Hill, W. S., Agents.-For Mrs Robertson-Pyper; J. B. Gracie, W.S., Agent.S. Clerk.

1st February 1831.

No. 198.-HERITORS OF NEILSTON, Suspenders, v. ANDREW MILLAR, Charger.

Church-Enlargement-Repair-Heritors-Held, that unless a church be ruinous, or in such a condition as to require rebuild

ing, the heritors of the parish cannot be obliged to enlarge it for an increased population—Also, that the collector appointed by a presbytery to collect an assessment for enlarging the church may, as charger, be decerned against for expenses in a suspensionOpinion expressed, that where an increase of population arises from villages, the heritors are not solely liable in the expense of enlarging the church.

In this case the Presbytery of Paisley, in consequence of the increase of the population of the parish of Neilston, and the need which existed for certain repairs upon the church, had, after fruitless attempts to obtain contributions for a chapel of ease, decerned, on the application of certain parishioners, against the heritors for an assessment of £4556, in order to the enlargement and repair of the church. The first report by tradesmen represented the church as having walls and roof in good condition. But a fresh remit was made. The heritors declined to acknowledge the subsequent proceedings. The Presbytery, 7th August 1827,

"having received the reports of the tradesmen appointed by them to examine the state of the church of Neilston, as well as that of the session-clerk appointed to ascertain the population of the parish, and having, moreover, personally inspected the church, are of opinion that it is greatly deficient in the extent of the accommodation, and is not in a good state of repair, either in the wood or walls; but, in consideration of the great importance of the subject, and the thinness of this meeting, agreed to decline coming to a decision at present, and refer the consideration of the whole matter to a meeting of presbytery, which, from the present insufficiency of the church as a place of worship, they request the moderator to appoint to be held at Paisley, the usual place and hour, on the last Thursday of August current, being the 30th day of the month."

The

Thereafter, 30th August 1827, they resolved, that "the church of Neilston appeared to the presbytery, at last sederunt, as greatly deficient in the extent of accommodation, and not in a good state of repair, either in wood or walls. presbytery did, and hereby do adhere to and adopt said opinion, and do find and decern accordingly: Find that the church of Neilston is, according to the census verified on oath by Mr Anderson, totally insufficient and inadequate for the accommodation of the parishioners of Neilston capable of attending public worship Find that the parish of Neilston contains at present 6808 persons, of which number 4789 are above twelve years of age: Find that two-thirds of 4789 make 3192 examinable persons who have, by law and practice of the Supreme Court, a right to be accommodated with seats in the church of Neilston: Find that only 830 persons are at present accommodated in said church, which, deducted from 3192, leaves 2362 persons to be accommodated: Find that additional accommodation ought to be provided for these 2362 agreeable to law, and decern accordingly."

And on the 2d of July 1828, notwithstanding of various repairs by the heritors, with which the presbytery seemed satisfied, they imposed the assessment of £4556, for enlargement and repairs, on the heritors, and appointed the charger their collector. In their suspension, the trustees pleaded-That as the church was in repair, they could not be bound to enlarge or rebuild it for any mere increase of population: That the proceedings of the presbytery were highly irregular: That their judgment was unsupported, even by the reports irregularly obtained by them; and that, at any rate, the whole burden of enlargement and repair should not fall upon them, as the parish contained many villagers and feuars. The charger maintained the reverse of these pleas.

"The Lord Ordinary (5th July 1839,) having heard parties'