and elders did not certify that the applicant was of good character and worthy of credit, although the fact of his honesty rested entirely on his own statement. 2. That the person (David Milne,) who intimated the application was neither a notary-public nor a messenger-at-arms, although he subscribed as a notary. Answered-1. The certificate bears, that the minister and elders are aware of the applicant's residence, and have no reason to doubt his proverty. 2. Milne is entered in the Almanack of 1819, as practising at Arbroath as a notary, which is prima facie evidence of his being so; and if the contrary is alleged, the certificate can be challenged by a reduc tion. The Court repelled the objections, and found the objectors liable in £2, 2s. of expenses.

First Division.-Act. Hugh Bruce.-Alt. J. W. Dickson.

2d February 1831.

No. 203. ANTHONY MURRAY, Assignee of PATRICK CARNEGIE, Pursuer, v. A. SMITH, &c., Heirs-portioners of A. WATSON, Defenders.

Settlement-Heirs and Assignees-Intention-Where an individual had executed conveyances of his heritage in favour of himself, and the heirs whomsoever of his body, whom failing a series of persons there named, and afterwards setiled his moveable estate on another individual, and gave to her the liferent, and to "his heirs and disponees" in fee, certain of his lands-Held, that the heirs and disponees so mentioned must, in absence of all indication of alleged intention, be held to mean, not his heirs of line, but the heirs called under the former settlements.

The circumstances of this case are sufficiently detailed in the interlocutor and note of the Lord Ordinary. The pursuer brought an action of constitution, to have it declared that a settlement by the ancestor of the defenders (22d January 1798,) in favour of the pursuer's cedent, contained certain lands, and to have the defenders ordained to make up titles to them, and transfer them to the pursuer, in implement of the above settlement.

"The Lord Ordinary (10th July 1830,) having heard parties' procurators, and considered the closed record-Finds that the late Alexander Watson of Turin, by his deed of settlement of 13th October 1797, disponed certain parts of the lands belonging to him in favour of himself, and the heirs whomsoever of his own body; whom failing, his father in liferent, for his liferent use allenarly; and Miss Mary Carnegie, daughter of the deceased Sir James Carnegie of Southesk, Bart., in fee, and the heirs whomsoever of her body; whom failing, Patrick Carnegie, Esq. of Lower, and the heirs whomsoever of his body; whom failing, his own nearest heirs and assignees whomsoever: Finds, that by deed of 22d January 1798, the said Alexander Watson, his father being at that time dead, executed a general disposition of the whole property, heritable and moveable, belonging to him, or which should belong to him at the time of his death, in favour of himself, and the series of heirs called in the former deed: Finds that Miss Mary Carnegie, the first substitute named in these deeds, died in the beginning of February 1828: Finds that upon the 8th of March 1628, the said Alexander Watson, upon the recital of his favour and regard for Miss Elizabeth Carnegie, a sister of the above-mentioned substitute,-of his wish to provide for the payment of his debts, by making them real burdens affecting his lands, and of his intention to settle and dispose of his moveable means and effects,' disponed, inter alia, a certain part of the lands belonging to him, being those contained in the first settlement, of the 13th October 1797, to and in favour of the said Miss Elizabeth Carnegic in liferent, during all the days of her lifetime, in case she should survive him, for her liferent use al

lenarly, and to his heirs and disponees in fee: Finds that this last mentioned deed contains no express revocation of the former settlements: Finds that the whole of these deeds were found uncancelled in his repositories at his death: Finds that, in these circumstances, and according to the legal construction of the said settlements, the deed of 8th March 1828, cannot be held to imply a revocation or alteration of the former settlements, in so far as regards the fee of any part of the lands of the disponer; and, therefore, repels the defences, and declares and decerns in terms of the libel; finds no expenses due.— Note. It is perfectly understood that the term 'heirs and assignees' does not necessarily and technically denote the particular series of heirs of line. It admits of construction, and may be construed as referring to persons on whom the character of heir or disponee has been conferred by the granter's former settlements. No doubt such a reference is often completely excluded, as in the case supposed in argument on the part of the defenders. When a party dispones his lands in favour of one series of persons, and afterwards dispones the same lands in favour of another series of persons, whom failing, his heirs and assignees, this last expression could not well be held to apply to the parties called in the first deed, for the very obvious reason, that their character, whether as heirs or disponees, would, in that case, be extinguished by the force of the revocation, or alteration of the disposition in their favour, necessarily implied in the appointment of the new disponees in the second deed. This seems to have presented a great difficulty in the case of Weir v. Steele, and Pattens v. Hamilton, in which the terms of the marriage-contracts in favour of the children of the marriage, admitted, upon very plausible grounds, of being considered as in themselves revoking the former dispositions, and consequently, as necessarily excluding the application of the term heirs and assignees' to these former disponees. But even in those cases, the difficulty was got over, on the ground, as the Lord Ordinary understands, that the effect of the marriagecontracts, in relation to the previous dispositions, was qualified by reference to the particular object of those contracts, and that, consequently, except in regard to that object, viz. the interest of the children, the rights of the former disponees remained in force. In the present case, no such difficulty occurs. The late Mr Watson, by his first deeds of 1797 and 1798, in favour of himself, and the heirs whomsocver of his body, whom failing, the series of persons there named, truly constituted those persons his heirs,' if regard be to be had to the form of their succession, and his disponees,' if regard be had to the nature of the deed by which that succession was appointed. But the deed 1828 contains no disposition of the fee of the estate in favour of any individuals preferred to the parties called by the former settlement, but proceeding on the narra tive of his regard for Miss Carnegie, and of his intention to settle his moveable estate, it conveys the whole moveable estate to her, as executrix, and certain of his lands to her in liferent, and his heirs and disponees' in fee ;-a form of expression which, it may be observed, is peculiar, and is very different, indeed, from the general clause of devolution employed in his former deeds, viz. his nearest heirs and assignees whomsoever.' In these circumstances, it appears to the Lord Ordinary, that, according to the true construction of these settlements, the term 'heirs and disponees,' employed in a deed executed, according to its narrative, for the purpose of creating a liferent, cannot be held to denote, and was not intended to denote his heirs of line, but is applicable to the parties clearly entitled to that designation in virtue of the former deeds, and not deprived of it by any thing contained in the deed in dispute."

The defenders reclaimed. At advising,

Lord Meadowbank thought that the note exhausted the cause. Lord Cringletic would have decided this case as the Lord Ordinary had done, even on its own merits, had there been no previous decisions to rule it. The voluntas testatoris was to be sought. He did not appear to have had any predilection for his heirs of line.

The Lord Justice-Clerk had no doubt on any ground. The intention in the testator to empower the lifereuter to make his

debts burdens on his estate, accounted for the expression "good causes." The evidence of intention was perfectly clear.

The Court adhered.

Authorities for Pursuer.-Ersk. III. 8. 47. Weir v. Steele, 7th February 1745; M. 11,359. Robson, 18th February 1794; M. 14,958. Anderson, 11th June 1829; Stair, III. 5. 12.

Authorities for Defenders.-Reid v. Proudfoot, 6th December 1758. Duke of Hamilton v. Douglas, 9th December 1762. Kendal & Co. v. Campbell, 18th June 1766. Maule v. Liddle. Pattens v. Hamilton, 16th May 1797; Mor. 11,376.

Second Division.-Lord Ordinary, Fullerton.-Act. Skene, Smythe. Alt. Greenshields, Keay.-John Gibson and Anthony Murray, W. S., and Macmillan & Grant, W. S., Agents.— Mr Ferguson, Clerk.

3d February 1831.

No. 204.-WILLIAM EWING, Suspender, v. WILLIAM WALLACE, Charger.

Attorney License-Competency-Suspension-Expenses-An agent for a pursuer who gained his cause, having given a charge on a decree, for expenses obtained by him in his own name, against a defender in the Jury Court-Held, that it was incompetent for the defender to present a suspension in the Court of Session, on the ground that the agent had not an attorney license.

The charger acted as agent for a person of the name of Wight, in an action in the Jury Court, against the suspender, from April to December 1827, in which an account of expenses was incurred to the charger, for which he took decree of that Court in his own name against the suspender, on 5th March 1829. A charge being given on this decree, the suspender presented a bill of suspension, on the ground that the charger had no attorney license for the period when the account was incurred. This bill was refused by Lord Cringletie, but a second bill was passed by Lord Corehouse. The charger then offered, in order to avoid litigation, to give up the amount of his profits on the account (£5, 12s.); and thereafter he offered to pass from the whole claim, and to pay the expense of the second bill of suspension, under deduction of the expenses of his answers to the first bill. This offer the suspender declined, unless the charger would pay the whole expense of both bills. The suspender then pleaded-I. The want of the attorney license, 25th Geo. III. c. 80, sec. 1, and 37 Geo. III. c. 90, sec. 7.—II. Its not being duly recorded.-III. That these pleas were not competent and omitted, it being equally competent to suspend a decree in absence of the Jury Court, as of the Court of Session-Robertson v. Strachan, 29th June 1826; and -IV. That the charger, by his letters, had abandoned the charge. Answered-I. The charger took out two licenses, applicable to the period in question; the first in November 1827, and the second in June 1828.-II. There was no officer then appointed in the Jury Court for recording licenses of practitioners before that Court, but the charger was enrolled as a writer to the Signet in 1808, and his name stood in that roll in 1827. The charger got his licenses recorded by the proper officer of the Court of Session in March 1829, before the present charge was given. Registration was not necessary in Scotland in 1827, by the act 25th Geo. III. The act 37 Geo. III. c. 90, does not apply to Scotland.-III. The decree charged on is a decree of the Jury Court, pronounced in foro, and cannot be suspended by this Court. The plea now urged ought to have been stated in the Jury Court,

and is competent and omitted. The acts quoted only prohibit the prosecution of suits, but not the using of diligence, if decree has been obtained.-IV. The suspender is not entitled to found on the charger's extrajudicial proposals, which were not accepted by the charger. The Lord Ordinary (Newton)'

:

"Suspends the letters simpliciter, reserving any claim for the expenses charged for, which may be competent to Archibald Wight Finds the suspender entitled to his expenses, both in this process and the Bill-Chamber, &c.-Note. The Lord Ordinary does not hold the extrajudicial offer to pass from the charge as conclusive of the merits of the case, seeing the offer was not accepted of under the condition on which it was made; but he thinks the merits are with the suspender. The objection of competent and omitted was ineffectual in the case Robertson v. Strachan, 29th June 1826, where a charge was suspended in circumstances similar to the present; and the Lord Ordinary is not aware of any distinction betwixt the proceedings in the Court of Session and those in the Jury Court, as to taking out decrees for expenses in the name of the agent, which should render that decision inapplicable as an authority to the present case. He has made a similar reservation to that which was inserted in the Court's interlocutor in the case of Robertson." The charger reclaimed.

Lord Gillies. The difficulty I have is, that, if a decree of this Court might be suspended, why may not a decree of the Jury Court? I doubt, however, if the doctrine of competent and omitted was taken into consideration in the case of Robertson v. Strachan. If the objections now urged had been stated in the Jury Court, they would have been considered before the decree was pronounced. Suppose a decree of the Justiciary Court for expenses, would it be subject to suspension? Besides, although the act prohibits a person without a license from prosecuting actions, if he actually does prosecute and obtains decree, how can the act apply? I do not see that the act deprives the party of his title to sue out diligence.

Lord President.-It is clear that the taking out of the licenses in November will not do for the previous part of the year. It was decided in Ellis v. Connell, 26th June 1822, that they must be taken out 10 days before the time, and that they caninot draw back. The Crown may depart from the penalty, but that does not authorise the party to pursue actions. This objection might, however, undoubtedly have been stated in the Jury Court, and there is nothing in the act which prohibits the suing out of diligence.

The Court

"alter the interlocutor complained of; find the letters orderly proceeded; find the charger entitled to expenses," &c.

First Division.-Lord Ordinary, Newton.-Act. Dean of Faculty (Hope,) and Maitland; Wotherspoon & Mack, W.S., Agents. Alt. Cuninghame; Party, Agent.-H. Clerk.

3d February 1831.

No. 205.-JOHN HUNTER & OTHERS, Petitioners, v. GEORGE GARDNER, &c. Respondents. Sequestration-A sequestration which had been awarded of the estales of an individual, as an insurance-broker in Edinburgh, recalled, on its being shewn that the Company with which he had insured his life was an English Company, consisting of the persons insured, and having merely a board of management in Scotland. Mr Gardner is comptroller-general of his Majesty's Customs for Scotland, with a salary of £500 per anHe also draws the interest of a sum belonging to his wife, and a surplus rent of a farm in Forfarshire, making his income about £600 per annum— burdened, however, with annuities to his two sisters, amounting to £75, besides £25 as the annual premium on an insurance on his life, effected with the Norwich Union Life Assurance Society, to the extent of £1000. Mr Gardner, by speculations and otherwise, had contracted debts to the extent of £2300, besides the above

num.

annuities; and in July 1830, he, with the concurrence of Sir William Forbes and Company, creditors to the extent required by law, applied for, and obtained sequestration of his estates under 54th Geo. III. c. 137, as being

66

an insurance-broker in Edinburgh, or at least a partner or holder of a share or shares in the undertaking, known by the name of the Norwich Union Insurance Life Society, for insurance on lives and granting annuities."

The petitioners, as creditors of Mr Gardner, presented an application to have the sequestration recalled, on the ground-I. That Mr Gardner's sole connection with the Norwich Union Life Insurance Society, which is perfectly solvent, is his holding a policy of insurance on his own life from that Society, which is a mere mutual benefit society, the proper funds of which alone, and not the members, are responsible for its obligations; and no part of the surplus funds or savings of which are divided, but, a part thereof is added as a bonus to the sums insured by the policies, and the rest goes to increase the funds of the Society. II. The said Society is an English Society, and all its policies are dated and signed in England. Answered-I. The business of the Society in question consists in trading in annuities. Every individual, by insuring his life with the Company, becomes a member or partner of it, and participates in the profit or loss. -II. The Company carries on its business in Edinburgh by means of a board of management. The partners are Scotch as well as English. A considerable part of their funds is vested in Scotland, and all applications are made to the board of management in Scotland. The Lord Ordinary reported the question to the Court.

Lord President.-Mr Gardner applies for sequestration as a partner of the Norwich Union Assurance Company; but that Company is an English Company, and does not carry on business here.

Lord Balgray. I am for recalling the sequestration.

Lord Gillies. So am I, on the terms of the Act of Parliament, which says, that the applicant must be a merchant or trader, &c. in Scotland. Now, is this gentleman an insurancebroker in Scotland? He says he has insured his life in England. But insuring his life in England, or in France, or in any other country, will not make him an insurance-broker in Scot land.

The Court recalled the sequestration, and found the respondents liable in expenses.

First Division.-Lord Ordinary, Meadowbank.-Act. Dean of Faculty (Hope,) and G. Napier; Deuchar and Knox, S.S.C., Agents. Alt. Skene and Adam Anderson; James Burness, S.S.C., Agent.-D. Clerk.

3d February 1831.

No. 206.-JAMES BROWNLEE, Suspender, v. ROBERT MILLAR, Charger. Bankrupt-Sequestration-Cautioner--Commission-I. A trustee on a sequestrated estate, who had realised no funds, allowed only 5 per cent. of commission on the composition paid by the bankrupts, and on the amount of the expenses of the sequestration. II. The commissioners having fixed a higher sum of commission, their resolution not regarded, as it was passed after the composition had been approved of.-III. The cautioner for the composition and expenses of the sequestration is not liable for the expense of actions against debtors to the estate, instituted after the creditors had agreed to the composition.

The estate of Mather and Greig, fleshers in Glasgow, was sequestrated on 10th December 1814, and the charger was appointed interim-factor, and after

wards trustee. On 28th April 1815, a composition of 6d. per pound was acceded to by the creditors, and James Brownlee, messenger in Glasgow, and another, became cautioners for the composition, and also "for the whole expenses of the sequestration." The composition was approved of by the Court in July 1815, but the decree of approval and discharge was not extracted till June 1816. At a meeting of the commissioners, held on 10th September 1816, the charger's commission, as trustee, was fixed at £30, and the meeting declared themselves satisfied with the charger's acting and management, and that he should be exonerated. The charger having realised no funds, raised an action against the bankrupts before the Sheriff of Lanarshire, in which he obtained decree in absence against them, on 19th June 1816, for £44, 10s. 74d. as the expenses of the sequestration (in which he, being a writer, had himself acted as agent). The charger subsequently obtained a similar decree against the bankrupts for £30, 7s. of expenses, incurred in proceedings against certain debtors to the estate (from whom nothing was recovered), commencing 30th October 1815, and ending 22d May 1816, and for £30 as the amount of his commission. The charger having recorded the bond of caution, raised horning and caption against the suspender in 1820, for payment of the above sums; and the suspender being concussed, as he alleged, when suffering under family distress, paid £6 to account, and nothing farther was done till 1825, when a new charge of horning was given, of which the present bill of suspension was presented. The suspender pleaded-I. The charge is ab initio inept. The suspender was not called in the actions in which the charger obtained decrees in absence against the bankrupts; and the debts contained in these decrees are not constituted against him, nor can the charge be turned into a libel after the record is closed.-II. The charger has produced no account of his intromissions, shewing that there are no funds.-III. After the composition was agreed to, the charger parted with the books and documents connected with the estate, which he was bound to hold in security.-IV. If the charger recovered no funds, his charge for commission is absurd, and it was incompetent for the commissioners to sanction that charge five months after the sequestration was at an end.-V. The charger had no attorney license during the period when the accounts are said to have been incurred. Answered-I. The debts were sufficiently constituted by decrees against the principal debtors; and the charge, which was for the expenses of the sequestration, in terms of the registered bond, was quite regular. The charger is, however, willing to turn the charge into alibel.—II. The charger realised no funds, and the minute of the commissioners exonerates him.-III. The charger was bound to give up the books and documents on the composition being approved of.-IV. The commission fixed by the commissioners was reasonable and proper.-V. The business accounts were incurred to Mr John Brown, the charger's partner, who had a license; and the charger himself complied with the provisions of, and is entitled to sue under the indemnity act 7th Geo. IV. c. 44. On a remit to the auditor, the account of £44, 10. 7. was taxed at £25, 12s. 6d. and the auditor reported, that he did not

think the suspender, qua cautioner for the expenses of the sequestration, liable for the account of £30, 78., incurred in actions against those who were debtors to the estate, especially as these actions were instituted after the composition had been accepted; and that as no funds were realised, he considered 5 per cent. on the probable amount of the funds (which, by adding together the composition and expenses, he estimated at £100,) as a sufficient commission. The Lord Ordinary (Newton),

"having heard counsel for the parties on the objections to the report of the auditor, and having considered these, and the whole process, repels the objections, and in terms of the report, finds the charger entitled to the sum of £25, 12. 6. as expenses of the sequestration, with the sum of £5 as commission, and to the extent of these sums, finds the letters orderly proceeded; but suspends the same quoad ultra, and decerns; finds the charger liable in expenses, subject to modification," &c.

The charger reclaimed, but the Court adhered. Charger's Authorities.-(1.) Campbell v. Macdonnell, 22d February 1827; 5 S. and D. p. 412.

Suspender's Authorities.-(1.) Anderson v. Wood, 25th May 1821; 1 S. and D. p. 31. Harkness v. Maxwell, 9th March 1822; 1 S. and D. p. 392. (4.) Barbour v. Mitchell and Clark, 27th May 1828; 6 S. and D. p. 856.

First Division.-- Lord Ordinary, Newton.--Act. Cuninghame; Tweedie, Graham and Anderson, W.S., Agents.-Alt. Wilson; John Pattison, Junior, W.S., Agent.- S. Clerk.

4th February 1831.

No. 207.-WILLIAM LOCH, Pursuer, v. Loch'S TRUSTEES, Defenders.

Trust-Circumstances in which trustees not entitled to take credit for advances towards acquiring a lease for the daughter of the truster and her family, when in distress, on the ground that the advance was not a contribution consented to by the party beneficially interested in the trust, but a mere investment of funds.

This case was before the Court on the 26th of November 1829, when the Court remitted to the Lord Ordinary to hear parties in regard to the right of the defenders" to take credit for the sums paid towards acquiring a lease for the benefit of Mrs Gardner, or paid over to her, or for any part of the said sums." For the circumstances of the case, reference is made to the former report (Sc. Jur. Vol. II. p. 60.) Under the above remit the Lord Ordinary ordered cases,-and, "having considered the remit from the Inner House, dated the 26th day of November last, the revised cases for the parties, and whole process, Finds, of new, that the defenders are not entitled to take credit for the sums paid towards acquiring a lease for the benefit of Mrs Gardner, or paid over to her, or any part of the said sums.-. .-Note.-It still appears to the Lord Ordinary, that from the written evidence in process it sufficiently appears, that although the use of this part of the liferented fund, in the acquisition of this lease by his father, was consented to by the pursuer, yet there is no reason to think that it was understood by either party, that the pursuer thereby gave up his expectation and right of receiving the money at the death of his father. (1.) It seems very clear to the Lord Ordinary, that the lease was acquired entirely for behoof of Mrs Gardner, and held in trust only by the father and son for her. He thinks it would be quite desperate for the pursuer to attempt claiming this lease as his own; and that a declarator of trust must pass against him on the written evidence. (2.) The Lord Ordinary then sees no sufficient reason to believe that the pursuer ever intended, or was understood to intend to make a gift to Mrs Gardner of a portion of his fee. Neither the way in which his consent to the application of this money was asked, nor the way in which it was given, imply so much. The transaction seems to have been loose, but it appears to the Lord Ordinary an ar

rangement to facilitate a provision by the father to his daughter -not a free gift by the brother to the sister."

The defenders reclaimed. At advising, the pursuer's counsel referred to a letter (not printed), containing an absolute declaration of trust, and explaining why the liferent had been taken to John Loch, and the fee to William-and that William had merely consented in the meantime to the advance made to Mrs Gardner.

Lord Cringletic was inclined to adhere. The £300 was part of John Loch's liferent and William Loch's fee. The only question was-Did William Loch consent to the purchase of the lease as an investment for himself;-or, was it part of the portion given to the Gardners? The letter entirely explained the

matter.

Lord Meadowbank was clear, even without the letter, which set the matter beyond all doubt.

The Lord Justice-Clerk agreed with the Lord Ordinary. The letter proved that the thing was done er præposito-on one hand to avoid the claims of creditors, on the other, to enable the trust to be declared.

The Court adhered.

Second Division.-Lord Ordinary, Mackenzie.-Act. P. Robertson, William Bell.-Alt. More, Brownlee.-Dickson and Stewart, & Peter Couper, W. S., Agents.-Mr Thomson, Clerk.

4th February 1831.

No. 208. THOMAS PATON, Petitioner, v. CHARLES FERRIER, Respondent.

Sequestration-Competency-Sale-Caution for price-He'd not incompetent to apply to have a claim entered on a sequestrated estate, after a meeting of creditors have adjusted all the payments, and held the trust substantially at an end. Where A. sells to B., making the price a real burden, and C. gives A. a bond of coution for the price; and B. afterwards sells to D., who retains the amount of price corresponding to that real burden, D., on paying the heritable debt to A., and getting assignation to the bond of caution oriğinally granted by C., cannot have recourse against C. on that bond.

Paton, as trustee on the sequestrated estate of J. B. Fraser, presented a petition and complaint against Ferrier, as trustee on that of George Lyell, demanding that Ferrier should rank him, or, at any rate, enter his claim on Lyell's estate, for the claim arising out of a bond of caution by Lyell, for instalments of the price of a property purchased by Douglas from Wilson, and sold by Douglas to Fraser, after the date of the said bond. The respondents, besides objecting on the merits of the claim, pleaded, on the competency of the application-That the voluntary sequestration of Lyell in 1819, had been brought to an end by a minute adjusting the payment of all the credi tors, and holding the affairs of the trust at an end, although there had been neither recal nor discharge; and that Frazer had never entered any claim similar to that brought. The following interlocutor of the Lord Ordinary points out the nature of the claim itself:

"The Lord Ordinary (15th November 1830,) having considered the closed record, and heard parties' procurators thereon, Finds, that on the supposition that the complainer had a good claim of debt against Mr Lyell, the state of the process of se questration, at the time when the claim was first presented to the respondent, was not such, that, under any of the provisions of the statute, the claim and this complaint can be held to be legally incompetent: Therefore repels the objection stated on that ground; and finds the complaint competent, in point of form, for trying the validity of the claim of debt: But on the merits, Finds, that the title of James Bristow Fraser in the lands of Blackburn having been burdened with the real lien of £11,000, effectually constituted in favour of James Jordan Wilson; and the said James Bristow Fraser, or others in his right, having fully paid to the said James J. Wilson the said sum of

£11,000, in order to stop the proceedings then in progress for making the said real lien effectual, the cautionary obligation of Mr George Lyell, which had been constituted in favour of the said J. J. Wilson, as a subsidiary security for the three first instalments, and the whole interest of the said price, was by such payment legally extinguished; and that it was incompetent for the said J. J. Wilson to grant, or for the said J. B. Fraser to receive, or to use with any legal effect, any assignment of the said bond of caution: Finds, that neither the complainer, nor any creditors who may have advanced money in order to enable Mr J. B. Fraser to pay the debt to Mr Wilson, and thereby relieve the lands of the real burden affecting them, can be in a better situation as to this claim than Mr Fraser himself: Therefore finds, That the complainer has no good claim of debt against Mr Lyell, the party under sequestration; dismisses the complaint, and decerns: Finds expenses due, and allows an account to be given in.-Note.-Though Mr Ferrier might, in the circumstances, be perfectly justified in refusing to recognise the claim at all, the Lord Ordinary does not think that it would be warranted by the statute, or would be a safe construction of it, to hold the complaint to be absolutely incompetent. The case on its merits, though it may assume an appearance of perplexity, is in reality reduced to a very short point. Douglas sold to Wilson; Wilson, being infeft, re-sold to Douglas for £11,000. This price was declared to be a real burden, in a form which was found to constitute a real security; and Wilson received, in addition, the bond of caution of Lyell and Dick for the three first instalments and the interest. Then Douglas sold to Fraser for £11,500. Fraser paid the £500, but retained the £11,000 for his relief of the real lien. He received no bond of caution from Lyell. Wilson charged Fraser, as if he had been his debtor personally, but failed in this; because Douglas was the proper creditor of Fraser, and he alleged personal claims of compensation against Douglas. Wilson then resorted to his real lien, and was proceeding with a poinding of the ground, when Fraser paid the debt, and obtained the assignation of Lyell's bond of caution. But it is evident that Wilson had no right to assign the bond for Fraser's relief. If Wilson had proceeded on the bond against Lyell, it is clear that Lyell, on paying the debt, could have demanded an assignation to the real lien for his relief, and then he could have proceeded on it against Fraser, and if Wilson had surrendered his real lien to Fraser without getting payment, he would have lost his claim against Lyell. But Fraser, holding the lands, could not resist the claim, in so far as the real burden affected them; and his only security consisted in his right to retain the £11,000 stipulated with Douglas. He could have kept that price, and let the lands go; or he could pay the price to Wilson, and keep the lands. He could not do both. He preferred the latter course; and, no doubt, when he did so, he took his chance of the value of the lands, and he had no security for his claims against Douglas, on the guarantee of the rents, &c. He took his chance of this also. But surely Lyell can be under no obligation to him, when the debt has been paid in full to Wilson, the proper creditor, and that solely by the force of his real lien, which was bis first security, and to the benefit of which Lyell had a complete right. The case appears to the Lord Ordinary to be extremely clear."

The petitioner reclaimed.-At advising,

The Lord Justice-Clerk held, that the Lord Ordinary was equally correct on both points. On the merits there was not a shadow of doubt. The complaint was bottomed on injustice. The Court adhered.

Second Division.-Lord Ordinary, Moncreiff.-Act. Forsyth, Buchanan.-Alt. Cuninghame.-James Martin, and W. Douglas, W.S., Agents.-Mr Thomson, Clerk.

COURT OF JUSTICIARY.
31th January 1831.

No. 209.-CROWN v. MURDOCH M'KAY, JOHN CAMERON, &c. Indictment-10 Geo. IV. c. 38.-Opinion expressed, that the whole section, and not merely a clause thereof, should be quoted in the indictment.

The prisoners, under 10 Geo. IV. c. 38, were accused of having discharged fire-arms at the officers of Excise. The indictment did not quote the whole section of the act.

The Lord Justice-Clerk remarked, that this indictment, like the one against Hardie, (24th January 1831,) only quoted a clause of the section of the statute under which it was laid. His Lordship thought the whole section should have been given., however long; and he was not inclined to sanction a practice which might lead to questions of a delicate and important nature, especially where the lives of individuals were at stake.

Lord Gillies and Lord Medwyn were of opinion, that where the parts of the indictment hung well together, as they seemed to do in the present case, the indictment was good, although the whole section was not quoted.

The pannels' counsel was not inclined to throw any obstacle in the way of proceeding with the trial.

The Lord Justice-Clerk thought that the Crown Counsel should be prepared by next Monday, to support the relevancy of the indictment by argument.

Solicitor-General said, he would rather come three weeks hence, prepared with a new and unobjectionable indictment.

Act. Solicitor-General (Cockburn) and M. P. Brown, &c.Alt. James Anderson.-David Cleghorn, W.S., Crown Agent, and L. Mackintosh, S. S.C., Pannels' Agent.-Justiciary Clerk.

HOUSE OF LORDS. 22d December 1830.

No. 210.-MALCOLM MNEILL, Appellant, v. MARY BLACK M'NEILL or JOLLY, Respondent.

Interest, Compound—Circumstances in which a judgment of the Court of Session, sustaining compound interest, was reversed, and case remitted.

On 20th August 1787, Daniel M'Neill granted to Dr James M'Neill an heritable bond, whereby he bound and obliged himself, his heirs, &c. to content and pay to the said Dr James M'Neill, his heirs and assignees, the sum of £1000 Sterling, and that and against the term of Whitsunday 1788, with £200 of liquidate expenses in case of failzie, together, also, with the due and lawful interest of the said principal sum from the date of the said bond: And for further security, Daniel M'Neill bound and obliged himself, and his foresaids, to infeft and seise Dr James M'Neill, and his foresaids, heritably, but redeemably, in an annualrent of £50 Sterling, being the annualrent then corresponding, or in such an annualrent, less or more, as by law, for the time, should correspond to the sum of £1000, to be uplifted and taken yearly, at Whitsunday and Martinmas. Dr M'Neill was infeft on this bond, and the interest was paid up to Martinmas 1792. Daniel M'Neill was also indebted to Dr MacNeill in a personal debt. He died in 1794, and was succeeded by his eldest son, Daniel M'Neill, who died in 1801, and was succeeded by his brother, H. F. M'Neill. In February 1806, a state of the accounts as between Dr M'Neill and Daniel M'Neill was made up, and a balance brought out against H. F. M'Neill of £2156, 0. 8., but Dr M'Neill restricted his claim to £2136; and in the event "of the above restricted capital, with interest from the above date, being paid soon, Dr M'Neill shall formally discharge the said Hector M'Neill, Esq. of all the above particulars." This settlement was never completed. In 1811, the following missive or agreement was entered into between Dr M'Neill and II. F. M'Neill: