that the objects for which the fund was subscribed had been accomplished, and, therefore, as the distress at New Brunswick had been alleviated, that the money ought not to be remitted for that purpose, but that it should be paid over to the Pictou Academical Institution, or for the purpose of endowing schools at Miramichi.-II. That a number of the original subscribers had addressed to the defender a mandate, ordering the proportion of the funds in his hands, belonging to them, to be paid over to the said institution. III. That, in these circumstances, the defender had, with a view to his exoneration, raised an action of multiplepoinding before the Sheriff of Lanarkshire. The pursuers in the count and reckoning having lodged a claim in the multiplepoinding, then brought it up to the Court of Session ob contingentiam. The trustees of the Pictou Academy, M'Gavin the treasurer, and a minority of the Glasgow committee, and several of the original subscribers, pleaded-I. The subscriptions were made for a specific purpose. The object of the subscribers having been accomplished, the committee, who merely acted as trustees, are bound to repay the surplus to the subscribers, or to apply it in the way they shall direct. The distress must have ceased, as appears from a letter of the Rev. James Thomson; for he requests some of the money to endow schools, but says nothing of misery still existing among the inhabitants from the fire, though three months thereafter he writes a contradictory account, which is founded on by the Glasgow committee. -II. The relief meant to be afforded was temporary. The committee have allowed the balance of the fund to lie for three years, without employing it for the purposes for which it was destined. This is a strong presumption that the distress is at an end.-III. The committee having differed as to what were the views of their constituents, in regard to the application of the said balance, it was the duty of the majority to have consulted their constituents, by calling a general meeting of the subscribers.-IV. The funds pertaining to the proportions subscribed by a minority of the committee, and by several of the original subscribers, have been assigned to the trustees of the Pictou Academy, who are therefore entitled to pursue. Answered-I. The fund was irrevocably placed in the hands of the committee (a majority of whom are now acting), for a specific purpose, which has not yet been accomplished; so that none of the contributors have any right to demand that the fund shall be paid to them, or applied to other purposes than that for which it was destined.-II. The distress has not yet been relieved, as appears from the document now in process, dated at Miramichi, 18th August 1829, subscribed by the High Sheriff, the Rev. James Thomson, and various other clergymen and respectable persons in the colony.

Lord Fullerton pronounced this interlocutor and

note:

"The Lord Ordinary (5th February 1831,) having heard parties' procurators on the closed record in the conjoined actions: In the count and reckoning decerns against William M'Gavin for the sum of £642, 7s., being the admitted amount of the subscription in his hands, under deduction of the expense of collection, with interest at 23 per cent. from the 30th day

of May 1828: And, in the multiplepoinding, prefers the pursuers and claimants, William Ewing and others, to the fund in medio: Finds them entitled to expenses; and allows an account thereof to be given in, and to be taxed by the Auditor.-Note.The action of count and reckoning and payment, is brought by the committee, or a majority of the committee, appointed to receive and superintend the application of the subscriptions in aid of the sufferers by the fires in Miramichi. It concludes against Mr M'Gavin, the secretary and treasurer appointed by that committee, for the balance of the subscription in his hands. The action of multiplepoinding was raised by Mr M'Gavin, in consequence, it is said, of the pretensions of several of the subscribers, or the assignees of these subscribers, to get back their subscriptions, on the ground that the object of the subscription had been fully accomplished. The claimants in the multiplepoinding are, on the one hand, the pursuers of the action of count and reckoning, and, on the other, the trustees of the Academy at Pictou, who hold assignations from several of the original subscribers. The Lord Ordinary thinks, that, when subscriptions are made for a charitable or any other legitimate purpose, the committee appointed to receive and apply these subscriptions must be considered in some measure trustees for the accomplishment of that purpose, with large discretionary powers in the selection of the individual objects included in it; and he holds it to be quite clear, therefore, that subscribers are not entitled, after payment to the committee, to retract their subscriptions as a matter of right. On the other hand, it is possible that cases may occur in which there is such clear and absolute evidence of the non-existence of any objects falling under the scope of the subscription, as to warrant a demand on the part of the subscribers for a division of any balance remaining unapplied in the hands of the committee. But the present is certainly not such a case. In the subscription-papers, the contributions were made in aid of the sufferers by the late fires in the province of New Brunswick;' and nobody can well doubt, upon considering the nature and consequence of such a calamity, that, however large the contributions in other quarters may have been, there must still be cases of suffering and distress falling within the scope of the subscription, and the limits of the discretionary power vested in the committee; and, if any confirmation of this were necessary, it is to be found in the paper signed by the High Sheriff, and various other respectable persons in the colony. In these circumstances, whatever right individual subscribers may have to inquire into the objects to which the committee proposes to apply the balance, and to object if these objects are truly foreign to the proper objects of the subscription, it is clear they cannot interfere between the committee and the treasurer appointed by that committee, upon the general allegation, and the offer to go to a Jury on the point, that the whole distress occasioned by the fires at Miramichi had been relieved. But that is the only question here; and the Lord Ordinary thinks it must be decided in favour of the committee, merely demanding the balance of the subscriptions from the party appointed by themselves to hold those subscriptions, until they found it convenient to apply them."

The minority of the Glasgow committee and the subscribers having reclaimed,-at advising,

The re

Lord Justice-Clerk.—Saw no difficulty in the case. solutions were exceedingly broad. They proposed to relieve disHe tresses caused by calamities of a most unparalleled extent. would give full credit to the document, dated 18th August 1829, founded on by the pursuers. It was written evidently with a view to correct erroneous apprehensions which had gone forth, that the alleviation of the distress had been completed. This document was signed by the High Sheriff of the county, and other respectable men. The defenders say, that they do not wish to re- pocket their subscriptions. What do they wish, then? Why, to contribute the money to the Pictou Academy. This was clearly a deviation from the object for which it was subscribed. Had the committee chosen to have given it away for any such purpose, the subscribers would then have been entitled to have called on them to return the money. But the committee were desirous of applying the fund to the purposes for which it had been contributed. In the destructive fires, many individuals

must have been mutilated, and they had a claim to relief whilst a farthing of the fund remained. He would adhere to the Lord Ordinary's interlocutor.

Lord Meadowbank observed, that the Lord Ordinary had most clearly pointed out in his interlocutor, the legal principles which ruled the case.

The other Judges concurred-and the Court unanimously adhered.

Second Division.-Lord Ordinary, Fullerton.-Act. Dean of Faculty (Hope) and Marshall.-Aut. Monteith, Dick, Skene, and Rutherfurd.-James Pattison, W. S., Claimants' Agent.— W. A. G. & R. Ellis, W.S., Reclaimers' Agents.-Mr Thomson, Clerk.

21st May 1831.

No. 368.-MRS ELIZABETH FINLAYSON or MUIR, Complainer, v. DONALD STEWART, TRUSTEE for JAMES FINLAYSON, Respondent.

Sequestration-Petition and Complaint-Expenses-A meeting of creditors on a sequestrated estate being called to consider an offer of compromise made by one of the debtors to the estate; and a mandate being produced, addressed by one of the principal creditors to the trustee, to vote against the measure, but on which mandate the trustee declined to act; and the other creditors present having agreed to the offer, which was subsequently sanctioned by absent creditors, so as to make up a majority-Held, that the whole proceedings were irregular; and the trustee and concurring creditors found liable in expenses.

In June 1829, James Finlayson was sequestrated, and Mr Stewart was appointed trustee on his estate. There existed various claims and transactions between the bankrupt and Mr James Pedie, senior, W.S. In February 1831, Mr Pedie offered to compromise these claims by paying to the trustees for the credi tors £120, on receiving a discharge; and a meeting of the creditors was called by advertisement in the Gazettes, to be held at Tain on the 16th of that month, to determine on Mr Pedie's offer. The complainer, who was a creditor to the extent of £1833, 5. 10., transmitted a mandate, on 12th February 1831, to the trustee, authorising him " to act for me at that meeting, and to vote for me against Mr James Pedie's proposition of compromise." The meeting was attended by two or three creditors whose claims were of small amount, and by Mr Gilbert Gordon, a creditor to the extent of £1619, 14. 10. The minutes bore, that the trustee, after stating the purpose of the meeting, mentioned,

"that he had received a letter, dated the 12th current, from Mrs Elizabeth Muir, late of Seafield, a creditor who lodged a claim for £1833, 5. 10., directing him to vote against the said James Pedie's proposition, which letter he produced to the meeting,-upon which Mr Pedie remarked, that the mandate in question was obtained through the agency, and at the instigation of the bankrupt, for the purpose of swaying the decision of the creditors at this meeting; and stated, that he has seen a letter so late as Thursday last, written by the bankrupt to James Bisset, writer in Edinburgh, his private agent there, directing him, Bisset, to wait upon Mrs Muir, the bankrupt's sister, and procure from her a mandate to the purpose of the one laid before the meeting, and for the purpose of swaying the decision of this meeting; and further, that it consisted with his knowledge that another mandate to a similar purpose was sent by Mrs Muir, or on her account, to the said Gilbert Gordon, but upon which, it appears, Mr Gordon declined to act."

The trustee then stated, that he declined to act for Mrs Muir, but that,

"to protect himself, the trustee thought it right to lay the letter before the meeting, so that Mrs Muir's sentiments on the

proposition for the consideration of the creditors, should appear on the minutes. At this stage of the proceedings, the said Gilbert Gordon left the meeting, and declined to take any part in the deliberations of the same. Mr Pedie then repeated to the commissioners, and to the creditors present, the offer he had formerly made, to pay them £120, for a mutual discharge between him and the creditors, of all claims presently subsisting between them, and that as soon as the discharge can be prepared; which offer being taken into consideration by the trustee and commissioners, and creditors present, they were unanimously of opinion, that the offer ought to be accepted, and au thorise the trustee to accept of the same accordingly. But the trustee wished it to be understood, that owing to the extraordi nary circumstances connected with the letter addressed to him by Mrs Muir, he declined to vote thereon, more particularly, as he saw that the creditors present, whose interest he represented, objected to his doing so."

Subsequent to the meeting, viz. on the 17th, 18th and 19th February 1831, Mr Pedie obtained the concurrence of Mr Gordon and three other creditors, who had not been present at the meeting, to his offer of compromise, and the trustee then wrote to Mrs Muir, stating what had taken place, and that Mr Pedie, by the concurrence of absent members had obtained a majority in favour of his offer. Mrs Muir then presented the present petition and complaint, and pleadedThat the whole proceedings were irregular, and ought to be rescinded and set aside: That by the 34th section of the bankrupt statute, it was the majority in value of the creditors assembled at the meeting who alone could agree to Mr Pedie's offer; but that as Mr Gordon had withdrawn, and the complainer's vote fell to have been given against the offer, no such majority was obtained. If the consent of the creditors could subsequently be obtained, the provision of the 41st section, that the resolutions of the creditors at their general meetings may be complained of within 30 days, would be nugatory. Answered-I. The creditors present at the meeting who voted at all, unanimously agreed to accept Mr Pedie's offer. The trustee had previously informed Mrs Muir, that he could not act for her on any occasion, and no one represented her or voted for her at the meeting-II. The sense of the other creditors was collected after the meeting, and the majority both of the creditors and commissioners are in favour of the compromise. The complainer, who objects, is a mere tool in the hands of her brother, the bankrupt. The Lord Ordinary (Cringletie,) pronounced the following interlocutor:

"21st April 1831.-The Lord Ordinary officiating on the Bills having advised this petition and complaint, with the answers thereto, and whole productions, Sustains the complaint, recals the resolution of the meeting of creditors complained of, and decerns; reserving to the trustee to call another meeting for taking into consideration the proposed compromise with Mr James Pedie, if so advised; and in respect of the irregularities which took place at the meeting, and of the subsequent illegal attempts to obtain consents, finds the complainer entitled to expenses; appoints an account thereof to be lodged," &c.

The respondents reclaimed, and pleaded-That though they admitted there were irregularities on both sides, which might set aside the proceedings, still they ought not to have been subjected in expenses. The Court were clear the interlocutor was right, and unanimously adhered.

First Division.-Lord Ordinary, Cringletie.-Act. Whigham; John Macandrew, S. S. C., Agent.-All. Skene; H. Inglis & Donald, W. S., Agents.-D. Clerk.

24th May 1831.

No. 369. WILLIAM ROBISON, Pursuer, v. ADAM CHARLES,

Defender.

Acquiescence-Homologation Servitude Circumstances in which a party having right, by his title-deeds, to take water from a stream in a certain way, not found barred from exercising his original right by an acquiescence of 13 years in a different arrangement, said to have been verbally agreed to by his predecessors, and on the faith of which considerable sums had been expended by the other party.

The pursuer brought an action of declarator against the defender, setting forth, that by feu-charter, dated 7th September 1804, granted by John Innes, W.S., as trustee for Robert Barclay Allardice, Esq., superior of the lands therein mentioned, Mr Innes conveyed to Robert Selbie and William Selbie, a piece of ground or beach on the north side of the water of Cowie, containing, in whole, three roods English

measure,

"with liberty and privilege to the said Robert Selbie and William Selbie, to take in by a lead opposite to said piece of ground, water from the said water of Cowie, for the purpose of driving or turning machinery only :"

That the said piece of ground and right to the water came to be vested in James Burness, bank agent in Stonehaven, conform to disposition in his favour, dated 13th April and 1st May 1828, granted by John Popplewell & Company, and Charles Chalmers, the trustee on the Selbies sequestrated estate; and the said James Burness conveyed the same to the pursuer by disposition, dated 23d December 1828: That the pursuer's authors had, till lately, enjoyed the use of said stream, and, in particular, in or about the year 1804, the said Robert Selbie and William Selbie introduced the water to said piece of ground by a lead opposite the same, for the purpose of driving a mill for washing cloth and yarn, which lead and mill they voluntarily discontinued about the year 1815: That, in 1826 or 1827, the said John Popplewell & Company erected a new sluice upon the said piece of ground, for the purpose of admitting the water from the Cowie; but the pursuer's right to use the water as aforesaid had lately been disputed and interrupted by the defender, who had obtained an interdict before the Sheriff of Kincardine against Mr Burness, the pursuer's author, interdicting him from introducing the water as aforesaid, and concluding that it should be found and declared that the pursuer had good and undoubted right to take in, by a lead opposite the said piece of ground, water from the said water of Cowie, for the purpose of driving or turning machinery, and to make such leads or cuts through the beach or piece of ground intervening between the pursuer's said property and the water of Cowie, as might be necessary for the due enjoyment of the said right. To this summons defences were lodged, stating that the defender was proprietor of the piece of ground (intervening between the pursuer's ground and the river) through which the pursuer claimed the right of cutting leads or cuts for the purpose of obtaining the use of the water. The defender acquired this piece of ground in feu from Mr Barclay Allardice about the year 1804, but possessed it without any written title till 1811, when he obtained a missive of feu. In

1825, the defender obtained a regular feu-charter, on which he is infeft, and the defender's title is not burdened with any servitude whatever. The charter granted to the pursuer's author contains no special servitude, but merely a general right to take water from the river opposite the ground feued. Sometime after obtaining this charter, the Selbies and the defender, by erecting a temporary dam-dike, so as to raise the level of the water, were enabled to form sluices, introducing the water to their respective mills, but this dam-dike having been erected without authority, and proving injurious to the flour mills of Cowie, the proprietors of which threatened to take measures for having it removed; and having been swept away by a flood in 1814, the above mode of taking water from the river was entirely abandoned, and an agreement was entered into between the defender and the Selbies, in consequence of which a new dam-dike was erected about 100 yards farther down the river, and a new lead therefrom was cut, passing through between, and supplying the mills both of the Selbies and the defender. All this was done at the joint expense of the defender and the Selbies. The old lead which passed through the defender's ground, and which is now sought to be re-opened, was filled up by the Selbies, and converted into garden ground. The defender also filled up his previous lead, and, on the faith of the above agreement, he converted his waulkmill into a spinning-mill, made large additions to it at a great expense, and completely altered the nature of the machinery. These operations were acquiesced in by the Selbies and their successors, from 1815 to 1827, when Popplewell & Company, the then proprietors of the pursuer's ground, made a demonstration of an intention to renew the old lead, but on this being opposed, immediately desisted. Mr Burness, on acquiring the property in 1828, cut a lead, brevi manu, through the defender's ground in the line of the old one, but the defender obtained an interdict against him from the Sheriff. The pursuer has therefore now no right to resume the mode of taking water which was abandoned by the agreement in 1815, of the acquiescence in which for 13 years, the pursuer was aware when he purchased the property from Mr Burness. Besides, it would be impossible for the defender to take any benefit under the decree craved, without, at least, particularly injuring the property of the defender; for, (1.) The pursuer has no right to erect a dam-dike across the river, and without such dam dike, no water could be brought through the proposed lead. (2.) The pursuer has no outlet for such water, and it would inundate and injure the lower property of the defender. (3.) The introduction of water into the proposed lead, would deprive the defender's mill of its proper and previous supply of water by the mutual lead of 1815. Answered-I. The pursuer does not know, and does not admit the statements of the defender. The pursuer is entitled to introduce the water into his feu, as libelled, in virtue of his feudal title containing that privilege. -II. Any title which the defender may have to his ground is posterior in date to the title of the pursuer and his authors, and so cannot compete therewith.

III. The pursuer's right being apparent from the records, and the defender having purchased, knowing the same, cannot use his posterior right to the pursuer's prejudice.-IV. The acts and deeds of the Selbies, implying a departure from the privileges in question, cannot affect the defender, a singular successor, nor can said privilege be lost by acquiescence.

The Lord Ordinary (Corehouse)

"Finds, that Robert and William Selbie, the pursuer's authors, by the disposition produced, dated 7th September 1804, obtained right to the piece of ground marked B. B. in the plan of process, with liberty and privilege to take in by a lead opposite to said piece of ground, water from the said water of Cowie, for the purpose of driving and turning machinery: Finds that the pursuer has now right to this subject by progress from the said Robert and William Selbie: Finds that the defender has not adduced nor offered evidence competent to prove that the pursuer or his authors abandoned the privilege of taking in and using the water, in the manner, and for the purpose mentioned in the disposition; therefore finds, decerns and declares in terms of the libel: Finds the defender liable in expenses."

Lord Balgray.-Does the defender maintain, that, in 1815, there was an express written agreement with the Selbies, renouncing or restricting the right of servitude?

Rutherfurd, for Defender.-We admit that there was no written agreement, but we offer to prove that the alterations were made, and the servitude restricted, with consent of the person infeft in the pursuer's property at the time. The pursuer is now excluded by acquiescence, on the faith of which the defender expended considerable sums of money, from challenging the arrangement then made.

Lord Balgray.-This being a process of declarator, and not a mere possessory question, it is impossible to hold that the alterations made in 1815 were agreed to be permanent, unless the agreement had been reduced to writing.

Lord President.-I understand the arrangement in 1815 to have been a mere temporary arrangement, and we are bound to consider it so, unless it had been reduced to writing.

Rutherfurd, for Defender, objects to the broad terms of the summons, as concluding for declarator of a right which cannot be exercised.

Lord President.-The pursuer is entitled to have his right declared. If he does any thing illegal in attempting to carry it into effect you have your remedy, but we must decern in the declarator.

The Court adhered.

Pursuer's Authority.-Lang v. Dixon, 29th June 1813.

First Division.-Lord Ordinary, Corehouse.-Act. Munro ; James Burness, S. S. C., Agent.-Alt. Rutherfurd & Graham -Bell; Dennistoun & Christian, W. S., Agents.-S. Clerk.

24th May 1831.

No. 370.-ROBERT KERR, Claimant, v. DUKE of Roxburghe's TUTORS, Respondents, in Locality of Roxburgh. Teinds-Augmentation-Warrandice-The titular and patron of a parish having granted a disposition of teinds at six year's purchase, in favour of an heritor; and having bound himself and his heirs, &c. by the disposition, to warrant the teinds “from all future augmentations of stipend to be imposed thereupon"Found, that the titular and his heirs are bound to relieve the heritor and his heirs from all augmentations subsequent to the date of the disposition.

This was a claim of relief made by Mr Kerr against the respondents, in the locality of the parish of Roxburgh, in virtue of a clause of warrandice contained in a disposition by the Duke of Roxburghe, as patron and titular of the parish, to Mr Kerr's predecessor, Christian Kerr, Esq. of Chatto, in 1740. A preliminary objection was repelled on 18th January 1831, vide ante, Vol. III. p. 179. The disposition narrated,

[May

that by a process of valuation, modification, and locality pursued by the Duke and the minister of the parish, against Mr Kerr and the other heritors of the parish, for having the teinds of their respective lands valued, and a sufficient stipend modified and localled to the minister,

"the rent, stock, and teind of the said lands of Sunlaws, belonging in property to the said Christian Kerr, is rated, and valued, and acquiesced in, to be the sum of one thousand four hundred merks Scots money yearly, a fifth part whereof, being two hundred and eighty merks, is teind, and subject to a proportion of the minister's stipend; and in which process, the said Lords, by their decreet of modification and locality, of date the 20th day of December 1738 years, modified the yearly stipend to be paid to the minister of Roxburgh, with the communion elements, to 1250 merks Scots money for crop and year 1738, and in all time coming, and localled the same upon the several heritors, to be payed by them to the minister out of the teinds of their respective lands, ilk ane of them, for their own parts, in manner thereby divided; and the proportion of the said stipend and communion elements, modified and localled to the minister out of the foresaid teinds, parsonage and vicarage, of the said lands of Sunlaws, by the foresaid decreet, is decerned to be the sum of £173, 4s. Scots yearly (including £88 Scots formerly in use to be paid of stipend by the heritor of Sunlaws, to the said minister of Roxburgh); and whereas, after that proportion of stipend is deducted out of the foresaid sum of 280 merks of free teind of Sunlaws, there remains the sum of £13, 9s. 4d. Scots of reversionary teinds yearly, acclaimable by us as patron or titular foresaid, furth of the said teinds of Sunlaws; which reversionary teinds, the said Christian Kerr of Chatto is desirous to purchase from us, agreeably to the laws and statutes made in that behalf, which we agree to; and now that the said Christian Kerr of Chatto has made payment to us of the sum of £80, 16s. Scots, as the neat and agreed price, at the rate of six years' purchase, of the said reversionary teind of £13. 9. 4. Scots yearly, after payment of the minister's stipend as afore. said, and has also made payment to us of the interest of the said price, from and since the term of Whitsunday 1739 years, whereof we hereby grant the receipt, and hold us well content, satisfied and paid, renouncing all exceptions in the contrair: Therefore witt ye us, as patron foresaid, to have sold, annalzied, and disponed"

the said teinds, &c. under the burden of the foresaid sum of £173, 4s. Scots of yearly stipend to the minister. The disposition then contained obligation to infeft and to warrant the title at all hands, and against all deadly. The clause of warrandice then continued as follows:

"And likewise to warrand the teinds above disponed from all future augmentations of stipend to be imposed thereupon, beyond the present stipend payable to the minister furth of the said teinds, conform to the decreet of locality before-mentioned.”

In