320

The respondents having reclaimed, cases were ordered, and on 23d November 1827, this interlocutor was pronounced:

"The Lords having resumed consideration of this note, and whole cause, and having heard the counsel for the parties, alter the interlocutor of the Lord Ordinary submitted to review: Find the trust-deed, in this case, effectual; although it contained no clause dispensing with the delivery, and was not delivered during the life of the granter: Find the will, afterwards executed by him, likewise effectual as a declaration of his intention and instruction to his trustee, relative to the disposal of his heritable property in Scotland after his death: Therefore sustain the defences, assoilzie the defender from the conclusions of the action, and decern."

Brack appealed, pleading-I. The deed of trust in question is null and void, in consequence of its not having been delivered by the granter of it prior to his death.-II. Unless both of the writings, the trustIdeed and the West India will, are sustained, the respondent can have no case.-III. The trust-deed was revoked by the will, and cannot be taken into view at all, in considering what is the import and effect of the settlement found in the repositories of Mr Virtue at the time of his death.-IV. By the law of Scotland, no reserved faculty can be effectually exercised without express reference to the deed in which the power of exercising it is reserved.-V. It is incompetent to reserve a power of testing on heritage, or of doing any other act which is contrary to the established rules of the law of Scotland.-VI. Supposing the objections hitherto stated were to be got over, still the West India settlement cannot be held as a due and competent exercise of the reserved faculty in the trustdeed, in respect that it was not executed in a manner which would have sufficed for the conveyance of heritage, even if the words employed in the will had been sufficient, and if it had been the intention of the granter that it should have stood as the sole conveyance of his succession. In other words, the appellant's plea is, that a will or other paper of nomination of an heir is good for nothing, unless it is duly tested according to the rules of the law of Scotland. The respondent pleaded, that the judgment of the Court below ought to be affirmed,-I. Because the mode adopted by Mr Virtue for disposing of his heritable property in Scotland, satisfies all the feudal rules required by the law of Scotland for the valid transference of heritable property.-II. Because there has been a series rerum judicatarum recognizing the validity of vesting heritable property in trustees for purposes to be afterwards specified, and thereafter of declaring these purposes in any will or deed, or paper of instructions, which may be executed according to the lex loci, or which could be authenticated as the genuine deed of the writer.III. Because the law of death-bed has no application whatever to such a case as the present, particularly where both the trust-deed and the will, or paper of instructions, were executed so long before the death of the testator.-IV. Because the trust-deed referred to the will, to be afterwards executed, for the instructions to be given to the trustee; and it is absurd, therefore, to allege, that the will, which contained these instructions, can be held to have revoked the trust-deed.-V. Because the trust-deed being, so far

as related to the disposal of the heritable property after the death of Mr Virtue, a mortis causa deed, required no delivery, nor any clause dispensing with delivery, to make it effectual.

Lord Lyndhurst.-I am not quite sure whether I understand it. Mr Johnston, the grantee, was he in possession of the rents and profits, and did he continue so, up to the time of the death of the testator?

Mr Robertson. It was distinctly stated in the Court below, that Mr Johnston had not possession.

The Lord Advocate.-At any rate, it is not alleged that he retained this improperly. It is admitted that he accounted for all be got. It is not denied that he was executor under the will executed long after the deed. No doubt, there is the denial of the fact of his continuing the factory. We maintain that he was, from first to last, the joint executor of Mr Virtue. They say he was not. They omit stating throughout the whole course of the proceeding, who were, if he was not.

Mr Robertson.-We stated in the Court below that there was no management after the trust-deed, on the part of Mr Johnston.

Lord Lyndhurst,-I confess it strikes me, that as far as relates to the trust-deed, it did not require delivery to render it valid. First, It did not require delivery to render it valid, because the granter himself had an interest; and, secondly, Because, as far as related to the deed, it was a deed mortis causa. On these grounds, I am disposed to recommend your Lordships to affirm the opinion of the Court below. I further think, that, as far as relates to the will, it was intended by the party to be an execution of the patent contained in the first deed. It is impossible to consider the nature of the transaction itself, as mentioned in the first deed, and the description of the property, and not to come to the conclusion that the party intended to execute that. The question that remains then is, Whether the mode of execution was sufficient? If the mode of execution was sufficient, then there is an end of the question. I can hardly distinguish this case from the case of Willoch and Auchterlonie. It was considered at that time, that that was a question of very little doubt. Under such circumstances, I move your Lordships that this judgment be affirmed. Although I entertain this opinion, I think it is a question in which I ought to recommend your Lordships that the judgment be affirmed, without any costs. Ordered accordingly.

Appellant's Authorities.-(1.) Ersk. III. 2, 43. (2.) Cases of Crawfurdland in House of Lords; of Battley, 2d February 1815; Moir v. Mudie, 2d March 1820; and Scott v. Scott, unreported. (5.) Roxburgh Succession, 13th December 1816; F. C., affirmed 25th May 1820. (6.) Bell on Testing, p. 110; Ersk. III, 2, 22. Logan v. Logan, 7th February 1823; S. & D. Laing v. Whitelaw. Simpson v. Barclay; Elchies, V. Testament. Colville v. Colville, December 1664; M. 15,927, Brand v. Brand, 4th December 1735; M. 15,941.

Respondent's Authorities.-Willoch v. Auchterlonie, 14th December 1769; Erk. III. 2, 44. Hadden v. Shoreswoode, 19th June 1668; Stair, Vol. I. p. 541. Stevenson v. Stevenson, 26th July 1677; Stair, Vol. II. p. 550. Stark v. Kincaid, 11th December 1679; Stair, Vol. II. p. 720. McBride 371. v. Brysson, 6th June 1680; Stair, Vol. II. p. Trotter v Pitcairn, 1st January 1706; Fountainhall, Vol. II. p. 305; Tait on Evidence, p. 143. Duke of Hamilton v. Douglas, 9th December 1762, Faculty Decisions.

Second Division.-Lord Medwyn, Ordinary-Appellant's Solicitors, Spottiswoode and Robertson.-Respondent's Solici tors, Richardson and Connell.

Printed by M. ANDERSON, Law-Printer,

COURT OF SESSION.

INNER-HOUSE.

www

24th February 1831.

No. 279.-WILLIAM SIM, Suspender, v. NINIAN HODGERT, &c. Commissioners of Police for the New Town of Paisley, Char

gers.

Process-Suspension Statute-Police Commissioners-Justices of the Peace-Quarter Sessions-The Commissioners of Police having presented a petition to the Justices of the Peace, praying for removal of, and interdict against an alleged nuisance-Held, I. That such application and deliverance were incompetent.-II. That judgment having been obtained in absence, though no appeal was made to the Quarter Sessions, that appeal to the Court of Session, by way of suspension, was competent.

The chargers, in the capacity of Commissioners of Police for Paisley, under a statute passed on 12th July. 1806, presented to the Justices of the Peace for the county of Renfrew, a petition against the suspender, setting forth-That, adjoining to the suspender's soap work, in West Croft Street of Paisley, there was a vacant space of ground, to which the feuars in the New. Town have, in virtue of their titles from the superior, a common right, and which has been used for unloading goods from boats trading on the river Cart: That the soap waste proceeding from his work, which had been in operation for many years, in the New Steading, had been laid down on said piece of ground, and had been complained of, not only as an infringement on the rights of the feuars, but as a nuisance. The petitioners, inter alia, prayed the Justices

"to ordain the said William Sim instantly to remove the nuisance complained of, and to interdict him from laying down his soap-waste on the said vacant ground."

Decree was pronounced in absence, exactly in terms of the prayer of the petition, and a charge given, of which a suspension was presented on the following pleas :I. The Justices had no jurisdiction to entertain a petition of the nature of that presented by the chargers. -II. To warrant proceedings under a statute, it is necessary to libel upon it, and more especially where it is a local statute, introducing penalties and forfeitures.-III. Supposing that the chargers had libelled upon the statute, still, as the facts alleged do not bring the complaint within the statute, and no such powers are bestowed upon the Justices as those which they were called on to exercise, and which they did exercise, the petition and consequent warrant were incompetent and ultra vires.-IV. As it is declared by the statute, that no action shall be competent after the lapse of three months from the time of the act alleged being committed, and it was not averred that the act imputed to the suspender was committed within three months, the action could not competently be entertained. V. The charge is incompetent, because it proceeds, not on a warrant under the hand of any of the Justices, but on a warrant subscribed by the clerk of Court, and contains a certification of poinding.VI. The chargers have no title to insist. In particular, they have none in the character of Commissioners of Police for the New Town of Paisley and suburbs Vol. III.

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

thereof, nor in the character of Commissioners of Police, to insist for behoof of other parties, and for private purposes.-VII. The libel is quite irrelevant, even although it were laid on the statute, there being no averment that the chargers made any regulations in terms of it, or that the suspender violated such re gulations, or that he had incurred any penalty whatever.-VIII. Neither is there any relevant allegation of nuisance, it not being averred that the soap-waste is prejudicial to the health and comfort of the public in general, or even of the immediate neighbourhood. -IX. Supposing there were a relevant allegation of nuisance, still the chargers and the adjoining proprie tors are barred by acquiescence, and the suspender is entitled to the benefit of a possessory judgment.-X. As the petition and procedure were incompetent, and the Justices exceeded their powers, and the action was not founded on the statute, the suspender was not bound to appeal to the Quarter Sessions. swered-I. The suspension is incompetent. The Court of Session has no power to review the decision complained of. The Quarter Sessions is declared by the statute to be the proper court of review of the proceedings of the Commissioners of Police, or of the Justices of the Peace, acting under the statute. words are (sec. 107,)

An

The

"That if any person or persons shall think him, her or them. selves aggrieved by any order or other proceeding of the said Commissioners, it shall and may be lawful for him, her or them to appeal to the Justices of the Peace for the county of Renfrew, at their then next general Quarter-Sessions assembled, who are hereby empowered to hear and determine the matter in dispute, and whose order thereon shall be final and conclusive." There is no ground whatever for maintaining, that the proceedings were of such a nature as to entitle the complainer to come immediately for redress to the Court of Session, even although it were true that the petition ought to have been founded expressly upon the statute, and that the Justices exceeded their powers. There is not sufficient grounds for excluding the mode of appeal which the statute directs. It cannot be denied, that the grounds of the present com. plaint are against proceedings of the commissioners elected in virtue of the statute, and acting under its authority; and the remedy of appeal to the Quarter Sessions is expressly provided against ANY order or other proceedings of the Commissioners or of the Jus, tices. The decisions referred to by the suspender are all of them inapplicable to proceedings under a statute, by which a special court of review is appointed.-II. Supposing the suspension is competent, it is a suspension of a decree in absence of the Justices of Peace. The proper remedy in such cases, is provided by the statute 6th Geo. IV. cap. 12. sec. 43, which makes it competent for a defender, on consignation of the expense, to apply to have the decree recalled. The respondents do not even now object to the complainer being reponed against the decree in absence, on pay. ment of expenses.-III. With respect to the respondents' title, (1st,) The statute is entitled, "An Act for paving, lighting, cleansing, and watching the burgh of Paisley, and suburbs thereof." The New Town is so called, to distinguish it from the burgh of Paisley. The New Town is, in fact, in the suburbs of Paisley. No. XXI.

The title, therefore, of the petition, in which the respondents are described as Commissioners of Police of the New Town, is perfectly correct, as they were elected Commissioners of Police for the New Town. The complainer is barred by acquiescence, from maintaining that the respondents had no right to sue in the character of Commissioners of Police for the New Town. (2d) The statutory jurisdiction of the Commissioners extends all over the burgh and suburbs, to the effect of preventing all nuisances, whether on public or private property, which may be prejudicial to the safety and comfort of the inhabitants The statute, section 11, gives power to the Commissioners

"for removing obstructions, and removing nuisances of every kind, on the foot pavements, streets, and other places within the said suburbs."

(3d,) The jurisdiction of the Commissioners comprehends the quay, which is common property, and the streets per expressum into which the quay opens.-IV. As to the relevancy of the libel:-1st, It was not necessary to libel upon the statute. It is declared, by sect. 112. to be a public Act, "and shall be judicially taken notice of by all Judges and others, without being specially pleaded." The petition was presented in the name of the respondents, who were therein designed as Commissioners of Police; so that there could be no doubt that it was a proceeding under the statute. 2d, It was unnecessary to state in the petition, why the soapwaste was regarded by the inhabitants as a nuisance, for that word implies something hurtful. The petition libels, that the soap-waste was an obstruction, which, independently of its being a nuisance, was a relevant ground of complaint. 3d, It was quite competent for the Commissioners of Police to apply for an interdict against the suspender. The nuisance complained of had been admitted, and it was not of a casual or incidental nature, for which a fine imposed by the Commissioners, in terms of the 11th section of the statute, was the proper remedy. As to the objection, that the action was not brought within three months from the date of the complaint, that evidence was not taken before the Justices; and that it was only competent to levy the expenses of the action by the proceeding of distress and sale, it will be observed, that the object of the petition was not for the recovery of fines or penalties previously imposed by the Commissioners, as to which action must be brought within three months, but for an interdict against the continuance of an admitted nuisance.-V. As to the alleged incompetency of the proceedings.-1st, In every thing connected with the general comfort and safety of the inhabitants, the Commissioners are entitled to bring actions in their own name, and the Justices of the Peace or Bailies are expressly empowered by the Act to judge in such cases. The petition did not require the Justices to decide, either upon the import of feudal titles, or contracts or promises, or to deprive the complainer of any possessory right. 2d, The subject-matter of the petition was not ultra vires of the Court to which it was presented. "The Justices are entitled to decide all matters and questions arising in the said suburbs;" and the statute declares, that it shall be competent to the Sheriff and Justices of the Peace for the county, to exercise the same power and jurisdiction within the said burgh and suburbs, as

were competent to them before the passing of the Act. Even independent of the statute, therefore, the Commissioners of the Police, as representing the public, were entitled to apply to the Justices, as the proper Court for removing an obstruction from the public way. With respect to the objection, that it was ultra vires of the Justices to decern against the suspender, and in his absence, the statute does not warrant such a plea. The decree was warranted by the admission of the suspender as to the fact of the nuisance, and his various applications to the lenity of the Commissioners.-Lastly, The charge proceeding upon the decree of the Justices, is not incompetent. The decree on which the charge proceeds, is signed by two Justices; and even, therefore, if it had been pronounced for recovery of the penalties imposed by the statute, it would not have been incompetent. But it is only for the recovery of these penalties that the statute directs that the proceeding shall be by distress and sale. The certification of poinding in the charge refers to the expense of the suit, for which the Justices were entitled to decern, and for enforcing payment of which there is no special mode of proceeding prescribed by the statute.

The nature of the case is also set forth in the following interlocutor and note of the Lord Ordinary :

"The Lord Ordinary (14th December 1830,) having resumed consideration of the debate, and advised the process, repels the plea of the respondents, that this suspension is incompetent, because the suspender did not appeal to the Quarter Sessions, in respect that this is a decreet in absence, obtained, as is alleged, by the suspender, after he was given to understand that the case would not be proceeded in without farther notice, and which was extracted before he knew that it had been pronounced, so that he had no opportunity of applying to the Quarter Sessions; and that the penalty for not appealing first to the Quarter Sessions, which has been enforced in proceedings under statutes similar to the Police Act of Paisley, seems only to apply where the decree of the Justices has been pronounced, not in absence, but on hearing the parties in foro: Finds, under all the circumstances of the case, that, if a renit were to be made to the Justices, with instructions to open up the decree, and hear the suspender on his defences, it would be without calling upon him to pay any previous expenses; and as various objections have been stated, some of them very critical, to the form of the application to the Justices, which may be obviated in a new petition, suspends the letters and charge, and recals the interdict, but finds no expenses due; without prejudice to the respondents, or those interested, presenting another petition to the Judges or the Judge Ordinary on the subjectmatter in dispute, and to the suspender his defences as accords, and decerns. Note.-In an application of this kind, and after the communications extrajudicially with the suspender, and his own admissions and promises, adverting to his own statement of the nature of his right in the piece of ground as given in the letters of suspension, the Lord Ordinary does not think that the objections to the form of the application are such as to make him dismiss it as incompetent with an award of expenses; and as to the objections to the decerniture and charge, if these were laid open by a remit, as in the usual case of a decree in absence, they would be there redressed. Though the application is not dismissed as incompetent, some of the objections are plausible at least, and sufficient to prevent an award of expenses against the suspender, besides that the respondents have maintained a plea of incompetency which the Lord Ordinary could not sustain. Both parties, then, bave pleaded their case too high. In these circumstances, if the proceedings are now to commence before the Justices, each of the parties paying their own ex penses (and looking at the bulky record, these must be considerable, and might have been in a great measure saved, if the suspender had simply contented himself with praying for a re

mit, as in an ordinary case of a decree in absence), it seems better for all parties to commence de novo with an application, to which the suspender cannot state any such objections, and where his right to occupy this piece of ground in the manner he does will be fairly tried."

The chargers reclaimed on the merits, and the suspender in respect that he had not been found entitled to expenses.

Lord Justice-Clerk was of opinion, that there was nothing in the statute which gave the Justices of the Peace a right to interdict. There was no jurisdiction in the Police Commissioners, to entitle them to obtain an interlocutor against any thing being done in future by the complainer. They might get orders for removing obstructions in the streets. Had the application beza confined to this, he could have understood its competency. There was no authority in the Act of Parliament for granting interdicts, and he was not prepared to extend the powers of the Justices of the Peace beyond what they enjoyed at common law. The powers conferred by the statute must be exercised after hearing the party. There is nothing to warrant a decree in absence. They should have proceeded on a proof or confession. The prayer of the petition had been granted in absence, so that the limiting clause of the statute founded on did not apply; and therefore, as the Justices had gone beyond their powers, he was of opinion that the proceedings should be entirely suspended. He thought, also, that expenses should be given, but, as he did not approve of all Mr Sim's conduct, subject to modification.

Lord Glenlee was inclined to suspend simpliciter, reserving to the Commissioners to proceed as they might be advised. He thought the application and proceedings altogether incompetent and irregular, and that the suspender should get his expenses. The petition should have set forth the terms of the statute. The Commissioners should have made regulations, and published them. They do not found on a breach of such regulations. The Justice of the Peace Court was not the proper tribunal to try a matter of fact as to the nature of the property.

Lord Cringletie concurred. He thought the pleadings, however, were far too long. He doubted very much if the case fell at all within the four corners of the statute; for this quay in question, on the river side, did not appear to be a street. The prayer of the petition is not in conformity with any of the clauses of the statute. The Justices had exceeded their powers, so that the party was bound to come to the Court of Session. He did not think that a remit was the remedy; for how could there be a remit to a Court which had no jurisdiction, and therefore the letters should be simpliciter suspended.

Lord Meadowbank was of the same opinion as that expressed by their Lordships. He thought that the interlocutor should be recalled, and the letters suspended, as the case did not at all fall under the statute. But he would hesitate to say that the Justices of the Peace had not, under it, power to pronounce decrees in absence. When a party does not appear, he is presumed to confess.

The Court then pronounced this interlocutor :"The Lords having considered this note, and another note for the chargers complaining of the same interlocutor, with the other proceedings, and heard counsel thereon, Recal the interlocutor of the Lord Ordinary: Find, that under the local act of Parliament, referred to in the pleadings, the original application for interdict, as made by the chargers to the Justices of the Peace, was incompetent: Therefore suspend the letters simpliciter, and decern; reserving to the parties to proceed in due form as accords, and they shall be advised: Find the suspender entitled to expenses, but subject to modification."

Authorities for Chargers.-Police Act for Paisley and Suburbs, 12th July 1806 6 Geo. IV. c. 120, sec. 43. Alexander v. Seymour, December 2, 1828. Miller v. Craigie, 2d Wilson and Shaw, p. 642.

Authorities for Suspender.-(2.) Parlane v. Templeton, 28th June 1825, in relation to the Bankrupt Act; and Pollock v. Clark and Others, 12th November 1829, in regard to proceed ings under the Vagrant Act. (3.) Justices of Peace for Clackmannanshire, 5th December 1772 (7619.) Mitchell and Com

pany, 29th May 1818. Guthrie, 18th May 1821. Mair v. Mill, 7th June 1822. (5.) Lord Advocate, 20th February 1811; Fac. Coll. Appen. No. I. (10.) Russell, 18th January 1664 (7353.) Countess of Loudon, 28th May 1793 (1798.) Dawson, 18th February 1809; Fac. Coll. Heritors of Corstorphine, 10th March 1812. Young, 28th June 1814. Brown v. Heritors of Kilberry, 1st February 1825, and 15th November 1825. Rose, 2d March 1826.

Second Division.-Lord Ordinary, Medwyn.-Act. Jameson, Skene and Shaw.-Alt. Dean of Faculty (Hope) and Spiers.-M'Lean & Giffen, W.S., and William Patrick, W. S., Agents.-Mr Thomson, Clerk.

24th February 1831.

No. 280.-COCHRANE'S TRUSTEES, Pursuers, v. T. & R. FERGUSON, Defenders.

Cautioner-Oath, Reference to-Competency of—A cautioner having successfully pleaded the septennial prescription; and reference having been made to his oath, whether the debt was resting owing-Held, that such reference was incompetent.

In 1819, the defender, Thomas Ferguson, became tenant of the farm of East Kirkton, by public roup, The rent was £120 per annum, for payment of which his father, Robert Ferguson, bound himself as cautioner. Thomas having been guilty of offences against the revenue, absconded, and his crop and stock were sequestrated by the landlord. Sales took place, which were superintended on the part of the tenant by his father Robert, the cautioner, and the proceeds handed over to the pursuers towards payment of the rent. On the sequestration, which happened in 1820, the pursuers arrested, and in 1827, brought an action for an alleged balance against the tenant and his cautioner. In defence to this action, the cautioner successfully pleaded the septennial prescription (antea, Scot. Jur. II. p. 156.) The case having gone back to the Lord Ordinary, the pursuers proposed to refer to the oaths of the defenders whether the debt was resting-owing. Objected-I. The words of the statute are, that no cautioner "shall be bound for longer than seven years," and that then he shall "be, eo ipso, free of his obligation." A total extinction of the obligation is therefore operated, and the reference must be restricted to the oath of the principal debtor, Thomas Ferguson.-II. Supposing it were taken, it would not be effectual against the principal debtor, not being the oath of the party, which the statute requires. The Lord Ordinary, however, (12th February 1830,) "Having considered the minute of reference, with the answers thereto for Robert Ferguson, Sustains the said reference to the oaths of the defender, reserving to the respondent to be heard on the import of the oath, when emitted."

And, after the depositions were taken, his Lordship pronounced this interlocutor, (May 25, 1830):

"The Lord Ordinary having heard parties' procurators on the depositions of the defenders, Finds, that although the defender, Thomas Ferguson, depones negative at the close of his deposition, on the interrogatory, if the debt be resting-owing, this must be taken in conjunction with, and as explained by the previous part of his deposition, wherein he does not allege that he did any thing himself to the discharge of the said debt, but refers to what was done by his father, the other defender: Finds, on referring to the deposition of the said Robert Ferguson, that no payments are deponed to as having been made by him, which are not already credited in the libel, and, therefore, that the balance concluded for is resting-owing; decerns, therefore, ut libellatur, against the defender, Thomas Ferguson, with expenses, applicable to this defender; allows an account thereof

to be given in, and, when lodged, remits the same to the auditor of Court, to tax and report: With regard to the other defender, Robert Ferguson, sustains the defence of the septennial prescription of cautionary obligations, and as he is concluded against solely as cautioner, adheres to the interlocutor of 20th December 1828, assoilzieing the said defender with expenses, reserving to the pursuers to bring a new action against him on any competent ground, and to hear his defences thereto, as accords." Both parties reclaimed. The pursuers in so far as Robert Ferguson, the cautioner, was set free; and the defender, Thomas Ferguson, in respect that he had been decerned against on the import of the cautioner's oath, whilst his own oath was negative. The Court pronounced this order (18th December 1830)—

"The Lords having considered this note, with the other proceedings, and heard counsel thereon: Before farther answer, appoint the parties to give in minutes, both on the competency of the reference in this case, and on the import of the depositions that have been taken, to be given in and exchanged at the box-day in the recess, and to be boxed on the first sederuntday thereafter."

The pursuers maintained-I. That the defenders had not reclaimed against the reference in time, as they had allowed the deposition to be taken.-II. That though, as cautioner, Robert Ferguson might get rid of his obligation on the statute 1695, still the reference to his oath was competent, in justice to the principal debtor and his creditors: That having acted as negotiorum gestor for the principal debtor, he was bound to say whether he paid the debt during his management: That it was absurd to refer the matter of resting-owing to the son, who, in consequence of his absconding, was entirely ignorant of it. Answered-I. The obvious meaning of the Lord Ordinary's interlocutor is, that not merely the import of the oath, but also the liability it might infer against the party about to be sworn in the meantime, was reserved.-II. Robert Ferguson is not a party. His plea of the septennial prescription has been sustained, and in terms of the statute, he is " eo ipso" free of his obligation. The term of prescription having elapsed before the present action was raised, it was not competent to allow a reference of resting-owing to his oath. He never acted as negotiorum gestor.-III. With regard to Thomas Ferguson, the principal debtor, the oath of the cautioner can prove nothing against him, in respect that it resolves into the oath of a witness, and not of a party, as is required by the statute.

At advising,

Lord Justice-Clerk thought that the point before the Court was one of some nicetv. He was of opinion that their Lordships could not look at the deposition of Robert Ferguson at all; for the septennial prescription had run, and, he was freed. The pursuers, in their summons, concluded against him merely in the capacity of cautioner, and not that of negotiorum gestor. The principle on which reference to oath proceeds is, that the party has an interest, but here the cautioner has no interest. The reference to his oath was clearly incompetent. In this case, a reference to Robert Ferguson's oath is not similar to referring to a party's books. The books make a part of his oath. To sustain the reference to the cautioner's oath, would, in the present case, be deciding on the evidence of a single witness against Thomas Ferguson, whose oath is negative.

Lord Cringletie concurred with the Lord Justice-Clerk, Lord Meadowbank.-The question was one of difficulty. If the reference to Robert Ferguson's oath were competent, he did not think it was necessary that he should have been concluded against. The question was just this, was it competent

to refer to Robert Ferguson's oath, not as a witness, but as a factor? He was rather inclined, in the circumstances of the case, to sustain the reference.

The Court pronounced this interlocutor :— "The Lords having resumed consideration of this note, with the minutes of debate formerly ordered, and the other reclaiming note for Cochrane's trustees, and heard Counsel, Adhere to the interlocutor of the Lord Ordinary, in so far as it sustains the defence of prescription pleaded for Robert Ferguson, and refuse the desire of Cochrane's trustees thereanent: Quoad ultra, recal the findings against Thomas Ferguson: Find, that his oath is negative of the reference of resting-owing, Sustain the defences for him, and assoilzie him from the conclusions of the action, and decern: Find, of new, expenses due in the question with Robert Ferguson, and find, also, expenses due in the case with Thomas Ferguson; allow the accounts to be given in, and thereafter to be taxed by the auditor in common form; and further, allow the above decree to go out in name of Thomas Ferguson."

Pursuers' Authorities.-Young, Trotter and Company, 2d December 1802; Mor. 12,486. Colbrook; Mor. 9384, voce Oath. Douglas, Heron and Company; Mor. do. do. Cooper v. Hamilton, 20th February 1824, S. & D. Bell's Com. I. p. 333. A. v. B., 26th February 1751; Mor. voce Proof. Callander v. Wallace; Mor. Oath of Party. Hay v. Fulton, 26th June 1786; Mor. 13,220. Mette, &c. v. Dalyell, January 1830; S. & D., Vol. VIII. No. 174.

Defenders' Authorities, ut supra. Ersk. IV. 2. 4.

Second Division.-Lord Ordinary, Medwyn.-Act._ Keay & J. A. Maconochie.-All. Jameson and Hamilton.-Thomson Paul, W.S., and Mowbray and Howden, W. S., Agents.-Mr Thomson, Clerk,

25th February 1831.

No. 281.-GEORGE PENTLAND, Advocator, v. ELIBANK'S
TRUSTEES, Respondents.

Process- Sequestration – Advocation ob contingentiam-A party having raised an action of maills and duties for the rents of former years, and for such as might become due during the advocator's possession as tenant; and said action having fallen asleep; and the tenant having refused to pay; and sequestration of his crop and stock having been obtained-Held, I. That such sequestration was good.-II. After the maills and duties had been wakened, an advocation of the sequestration, in order to have il conjoined, ob contingentiam, with the maills and duties, was dismissed.

In 1824, an action of maills and duties was raised by the Royal Exchange Assurance Company, against the tenants of Lord Elibank, in order to secure the rents, and operate payment of an annuity of £450, payable during Lady Elibank's life, in consideration of a loan of £4950, obtained by Lord Elibank from said Company. The summons concluded for payment of the rents of the advocator's farm during the period of his possession. In defence, the advocator maintained-That the landlord was bound by the lease to expend a certain sum in raising steadings, which had not been done. Judgment was given for the crop and rents of 1825, and Pentland, the advocator, one of the tenants, also paid his rent during 1826. He however retained the rent of 1827, amounting to £779, when the respondents applied to the Sheriff, and on 23d December 1828, obtained sequestration of the whole stock, crop and bestial, in security of the rent of said year, and of 1828. In the meantime, the respondents wakened their original action of maills and duties, and Lord Mackenzie, on 23d June 1829, decerned against Pentland for the rent and crop of 1827, which was adhered to by the Court on 5th