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Copyright infringement liability can be quite severe. Digitized by Google f 12APR1W0J Digitized by Google THE SCX)TTISH JURIST. But, for such as devote themselves seriously to the Profession of the Law, and whose success depends upon the promptness and formality, as much as on the soundness of their measures, it is also indispensable to know, and be prepared, on every contingen- cy, to avail themselves of the Decisions, and other Judicial Transactions which are daily occurring in the Supreme Courts, and sub- jecting the Law itself and its forms to modi- fication and improvement. Decisions of the Two Di Tisiont of the Coart of Session. Decisions in the Court of Teindtr Decisions of the Jury Court Decisions of the Court of Justiciary. In regard to the house in Musselburgh, their Lordships ordered additional cases. For Cocfanm juid Trvstce— Follarton and Pateiaon; Donaldaoa and Baauay, W. The Lord Ordinary found, (5th February 1824,) that the ground was liable to assessment for poor's rates, in the same way as if it had continued in the hands of a subject : but that meliorations were net to be taken into account in calculating such assessment. Lord Justice Clerk stated, that the Question was important to the Bank, and to the law ap- plicable to cases of this nature. The petition was opposed by Nicol's representa* tives, on the grounds, ibat until their debt, which was regularly constituted, both by bond and decree in the Court of Session, was discharged, the inhibition used in security of it, could not be suspended or restricted : that if the sai4 de- cree of constitution were good, the diligence was unchallengeable, and must receive direct and immediate effect. In regard to the pursuer's reclaiming note, praying for a remit de piano to the Jury Court, they thought, with the exception of Lord Craigie, (who wished the matter of accounting betwixt the parties to be first decided), that they were boi nd^ in accordance with the spirit of the act of Parliament, to remit ; and remit- ted accordingly. tiated the diligence, was not the fact or deed of the defenders, but of the notary. The defender's letter declining to pay the second instalment until the contract should be drawn out and signed, shewed that he considered the terms of that contract important ; and that he did not think his accession to the Company complete, Digitized by Google No. 73 Aqc I, theiii was this contract, when drawn out, ionajide in terms of the original proposals and of the resolutions of the first meeting of sub- scribers ? The Lord President concurred, and thought that the only expenses the defender had bound himself for were those incurred by the Company in their preliminary arrangements. As to one of the fields included in the division, (Whiteraes Cross Acre Hole,) he fear- ed it was not in the situation contemplated by the statute. Mr Paul, how- ever, immediately took possession of the subjects as statutory trustee, and subsequently sold them as part of Mr Morison's estate. The defender had said that the pursuer's claim was and had formed a Tory clear opinion upon them. None of these judgments of the Sheriff were advocated; but the pursuer (El- der) now brought a reduction against the de- fender of all the various decrees, with a couclu- sion for damages. Their judgment, there- fore, could not be sustained by their Lordships^ His JLordship was also of opinion, that there was much in the objection aa to the difference between the Justices set forth in the warran|L and those before whom the final proceedings ana trial had actually been led. The serious error here was, that the Justices had made up a record of trial, with- * out any authority ^om the statute, and to the great injury of the accused, who had been ma£ liable in the expense of it. If he had been a fraudulent bankrupt, he might have put the ticket into the possession of his niece.

About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Not unfrequently a question may be decided to-day, establish- ing legal doctrines or pointsof form never pre- viously considered, which, before a fortnight has elapsed, may be used as precedents in judging or regulating the most important ana- logous cases: — And both Counsel and Agents, in town as well as in the country, may un- avoidably remain for months ignorant of the existence of judgments, which, if seasonably communicated, from being founded on si- milar species /ac Hj would be of essential advantage to them in the preparation of causes intrusted to their care* Considerable expense, and often great inconvenience, is thus sustained, which might have been al- together obviated by a more frequent and early publication of the proceedings of the Supren e Courts ; and, if the conductors of the Scottish Juristy by collecting and circu- lating, WEEKLY, a careful report of those proceedings, in a cheap and convenient form, can in some measure diminish the labours, and facilitate the inquiries of legal practition- ers, they will accomplish the principal object of their undertaking. Counsel for Mrg Johnston — Solidtor- General and More; Tboraaa Darlins* S. On advising a petition and answers, (I4th June 1825,1 the Court adhered to this interlocutor* so far as it found the property liable for poor's rates ; but ^oad ultra^ and as to expenses, recalled the judgment, and remitted to the Lord Ordinary io bear counsel Cases to the Court were or- dered by the Lord Ordinary (15th February 1827;) at advising which, the Judges ex- pressed an opinion, that a valuation should be put upon the property, as la a state of agri- culture. It mut-t be de- cided on the broad principles of equity. They farther (Jenied, that the remainder of the estate would be sufficient to pay their debt. Lord Ordinary, Meadowbank.— ^c^ Dean of Faculty, Jameson. This de- fence was sustained by the Lord Ordinary^ who accompanied his interlocutor with the fol- lowing no/«:— ** Note.— i Hltf Lord Ordinety has found no expenses due, because be ttiinka the pursuer's is a hard case. The pursuer reclaimed against this interlocu- tor ; nnd the Lord Ordinary, upon the Court remitting to his Lordship to reconsider the cause, appointed cases, on advising which, Lord Bahrat/ thought it a case requiring mature consideration. The Court, therefore, refused the reclaiming note, and adhered to the Lord Ordinary's inter- locutor. Lord Gillies thought the application of the statute here must be determined by expediency ; and he was not prepared to say that the division was expedient in this case. inglis and Company had previously intimated their willingness that the trustee should diayr the rents, without prejudice, however, to any claim of preference they might have under their assignation. He had consi- dered it proper to put down in writing tills de* liberate opinion, and he would communicate it to the parties. Maulc, Esq.- Betpondent, Arrestrnffit, — A party who had imd arrestments on a' depending action; htivinfr parti tf tutceeded in taid ae^* tion, found entitled to lity on addihokai arrestments pending an Appeal, This ^vas a bill presented by the Honourable' Wil Uam Maule of Panmure, and Ifis trustees, for letters of loosing arrestment against Wil- liam MUule; Esq. The groimds of action are sufficiently explained in the following inter- locutor of the Lord Ordinary : — ** 27th January 1829. His Lordship thought there was more difficulty as to the ques- tion of service, which ceremony did not seem to Digitized by Google Mo. 860 be co Blenplal€id by the Ant of Par Bametott j Jv thongh there (oerteinly wm great har4«hip in taking up and trying a Minq Qent altogether, ef Lord Mactentiefjithongh. But he took it from his repositories, luad gave it to* the trustee.

The other directors must be presumed to have relied on the confidential information derived from these gentlemen respecting this agent. offered by John Walker, merchant, Glasgow, and D, Discharging him of all debts, contracted prior to ap plication for sequestration. In this instance, Inglis and Company, if they had been vi- gilant, might easily have obtained civil possession. There was a valen Ha in the next substitute to force him to possess upon tliat right under which . As to- Panmure, his Lordship entertabcd a different opinion : He thought there was no prescription here. e been sustained by him subsequent to the 3l8t day of Ae* gust Id'^^so advised; iinds the pursuer liable in expenses.*' The pursuer then^ presented a reclaindng note against this interlocutor ; and^ at the same time, lodged a minute in process, restricting his claim of damages to the loss sustained by him subse- yiept \i \m 31st August 1827. The latter course was adopted ; and cases having been prejpared, the Lord Ordi- nary, 17th February 1829, made gireat avizan- dum therewith to jthe Court, on advising which. By the terms of the deed, these trustees were authorised to i^peiot fttctors, aad each was to be liable for his own intronnssions «nlf . The defender having brought an advocation of these judg- ments, it was objected by the respondent, Grif- fin, that the advocation was incompetent^ in re- spect that the Judgment of the Inferior Court did xm H 4ifpose of the whole merits of Uie cause, in terms ot the late Act of ^ederiujt, sedt. Both the original afit^on and the stimmons of transter^ce Were called in Court on 22d &(ay, and tlw pariilnts bore that the former was agamsl the deceased, as we U its the Imng defender. fi U indorsed after fiemg ne^ciated, — Onerous Trustee. The Court oujrht not to countenance such transactions. — Jamei Miicdonell, Advoc Rtor** A An** VOCATE V, Magiitratks of Dlngwall. Whereas here, his Lordship had^ de piano, ordered them to be printed andoo^ed* before they were lodged, in terms of § 64. He afterwards possessed the subjects t Ul his 'death, which happened soon afterwards; on which his daughter, Barbara Mitchell, the pre- sent defender, expede a service as Lis heir, and possessed them till 1 826. But there seems no suiltctent allegation of that, or denre that the diligence actually went on in name of Ainsli^ and for his behoof; he, though he hnd paid the amount, not choosiog to pay to the effect of extinguishing the bill| nor the payment bdng isecei Ted to that effecu** Hie pursuers presented a reclaiming note to the Court ; on ad Tising which. Infefttment was taken upon the bond, dated 2d and registered 7th August 1793. Lamont : — '* Refuse the desire of this reclaiming note, adhere to the interlocutor suhmitted to review, and decern : Becal the words * under the penalty in the bond,* in that interlocutor: Find expenses due sin)re the date of that interlocutor ; allow an account to be given in, and remit the same, when lodged, to the Auditor to tax and report.'* And on the Note for Robert Herries : — " Alter the interlocutor suhmitted to review, by leaving opt the words ' under the fena Uy in the bond.' Put adhere thereto quoad ultra : Find expenses due, allow an account to be given in, and remit the same, when lodged, to the Auditor to tax and report, and decern.*' Lord M«dwyn, Ordinary.r-^c^ Jameson,— ^/^ Cock- burn and M. You must now have drawn from the property more than the L50 1 was to pay you i and I therefore hope that you will order the tenants to pay their rents to rae at this term." The respondent denied his liability for by- gone rents, an^ made some counter-claims ; and among others, the sum of £50 payable by his father's settlement, in the event of the pursuer choosing the shure of the heritable property in Hawick in preference to the money provision.

If it had been proved that the Bank directors had formed a plan of concealing the truth from the pursuers, It would have amounted to a fraud of a criminal nature, for which they might have been called to account in another Court. Inglis and Company claim a preference^ on the ground that their iiitrmatlon to the sub-tenants lietween the date of Mr Morison's sequestntion and the (rustecs's adjudi- ration, formed a mid.tmpcdiment to the completion of the tru! We do not think that this argument is maintuinnlile. The intimation of the lease to the landlord, if made by William, would have been sufficient to mark the character of the possession. That the general body of the road trustees for the county of Edinburgh were confessedly no parties to the pursuer s contract of lease— that the district trustees are solely responsible in all questions with individuals or the public, as appears from 43. Lord Balgray considered the action relevant- Iv laid, and jfche objection of al Voi pendens ob- viated by the pursuers restricfioh of his libel. Lord Balgray observed, that this was a ca^o vi'here both the partnership a^d amount of sharo must be determined rebus et factis. The »m»uer brought ithe present action, naxratinfl:, tnat he had intromttted with the osteite of the truster on his death, as factor ap- pointed by his oo^trostees ; and that his a Ccouifts had been from time to time rendered to his o D- Imstees, and docqueted by them as corned; ; in j MUtiei^, that ati the tmstiees (exo^ one) had nmt on tbe^lsr July 1818, and ap^ved of a . — By feu-contract, dated 8th Jannary, and 4th and 19th April 1701, the Commissioners of William Lord Cathcart sold, and in feu-farm disponed to James Henry Casamayor, Archibald Montgomery Campbell, Edward Addisouj^Charles Addison, and John Roebuck, , " . 32 ; that the action before the Magistrates, besides con- cludmg for a count and reckoning with the ad- vocator, on account of his said inlxomissiona, also concluded for relief of the action at the in- istance of Mr Boaae, as to whjch no judgment had been pronounced; and further, that the judgment advocated was nothing more tlum an interim-decree. In th^ ctrcum- stancss it was contended, thsit as the iwiudia had not expired till after the death of one of the origin M /lefenders, ^ilt action coold never be called against liiiti at all — that it was not, and never could be made a process as against him — and, consequently, thatt there was nothing which could form the subject of a transference against his representatives — that it was the i Vwas contended, wns plain from the way in^whietft ev&t Y Author treats* of v Hiat \a ^ de» pendence. The late Letoy Buchnnan accepted a bill for L273j drawn lipbn him by Mr Macvey Napier, W. dated 2Bth October 1816, and payable thi^ee months after d^te. Barl of Mar, 13th November 1887, Shaw; Cullen on Bankrupt Law, p. The Court concurred with his Lordship, and accordingly adhered to the Lord Ordinary's in- terlocutor^ with expenses. Breach •/ Interdict — A party interdicted denying theae* curacy of a j Uan , according to which titc Lord Ordinary had granted the interdict^^A remit made to a surveyor to ascertain the facts. Dickaon & Others, Boxing papers^^^lathiii case Lord Ordinary, Newton, on the 14th May pronounced the fol- lowing interlocutor upon the defenders^ motion. ** Prorogates the time for lodging the revised case on the p&rt of John Dickson and Others for ten days from this date; and makes avizandum to the Lords of the First Division of the Court, with- the motoal re- vised cases ; and appoints the same to be printed ancf boxed within the foresaid 'periods, and grants warrant for inro Uhig the cause in the rnner-'House Rolls^ on production of both or either of the revised case« marked duly boxed.'* The pursuers complied with this order, but the defenders only boxed their revised case on the 26th of May. The other Judges concurred, and repelled the pursuers* objection. In that year the two in- dividuals above named, George and Smith, grant- icd new conveyances of the subjects to EHzabeth Bankine or Murrie, the pursuer, who took in- 'feftment, and then brought a reduction of the iiisposition hy Walter Combs and Margaret Barbour to tne defender's father, as proceed- ing a non habente potestatem, \Valter Combs Jiaving omitted to take sasine on the reconvey- ances from theparties, before granting the said disposition. Lord Glenlee stated, that he thought the in- terlocutor of the Lord Ordinary riffht. William Morrison executed a settlement o C his afiairs, bearing date 3d June 1805, by which he conveyed to his spouse in liferent; whom failing, to his only daughter, Mrs Lamont, omo of the defenders, ** In liferent, and for their respective liferent uses only; and, after the decease of the ssid Margaret Morriso Q* to and in fa Tour of the whole lawful chil- dren ef the said Margaret Morrisaa by her fiffisent or any future marriage in fee, equally, share and share alike," All his property, heritable and moveable; and qiecially the bond and infeftment above de- scribed. On 24th March 1826, the pursuer inti- mated to Mrs Liunont, that he intended to pay off the above heritable debt at the following Whitsunday, and required her to be ready to receive the money and deliver a vadid discharge ; and that, failing her doing so, the money would be consigned in terms of the clause of redemp- tion in the bond. An action wa« raised in January 1826, before the Magistrates of Hawick, in which the above claim and counter-claim were insisted in.

Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. After deduction of his account, however, there would not remain sufficient for payment of this heritably debt llie Court unanimously held, that the real lien of Wightman was entire, and that it is not in the power of the Court to deprive a creditor of any part of his lien ; and remitted to the Lord Ordinary to hear parties as to* the proposal made at the Bar, and as to the nature of the writer's claim, reserving all quebtions of ex- penses. The Lord Ordinary, in a note, (gih July 1827)i expressed an opinion that the sum of L4060, above-mentioned, was not a burden on the executry, and could not be charged against it as a debt for which it was ultimately liable.-^ 2. agent— Lord Cringletie, Ordi- nary ; Mr Fergusson, derk. Mr John Sii Bi the Bank's inspector, arrived at Thurso, on a visit of inspection, upon the 13th of July 1804 ; and, the day after his arrival, Mr Sim wrote to his constituents in Edinburgh, that the affairs of the Bank, under Mr Pa- terson's management, were in the utmost con- fusion, and that there was a deficiency of cash to the extent of above L16,000. The Court refused the reclaiming note, and adhered to the Lord Ordinary's interlocutor. S^, That the said lands fell under the operation of the said decree of reduction, in so far as the claimants, the Ladies Mary and Essex Ker, were Digitized by Google 68 SCOTTISH JURIST. Petitioners Agent — Hoh credi- tors were advised to abandon their claims in Chancery, and to commence proceedings against the estates in Scotland for the recovery 'of their debts. Sir Andrew Cathcait, who succeeded to it in HS^, being advised, that* from an omission in the prohibitory clause, he might contract debts, and make them effcatual against the estate ; an^ being apparently anxious to alter the orefore the Lord Ordinary, shall be dis- cussed, and brought, to a final determinaiion," Digitized by Google No. The decree for the expenses went out in the name of the defenders* agents, Messrs Macqueen and Mackiotosh ; and captions were also taken out, both at tlieir instance and at the instance of the other defenders. pointed a committee of management, with power to frame a contr}«ct for the said com- pany, but did not empower the said committee to insert into that contract conditions inconsistent with, or opposed to the objects held out in the original proposals. The action was opposed, on the grounds that the lands in question did not lie runrig in the sense of the statute ; but consisted of extensive fields, forming continu. His Lordship would not say that it was a collusive transaction ; but it was inter conjunctosy and could have no effect in deciding the present question. The«e were accordingiy satisfied^ in particular, the wi- dow drew her third share of moveables in money. * Answered for the pursuer : That prescription cannot run except upon a title originally good ; that the prescription, m regard to Hume, was suf- ficiently interrupted by Tod*s action, (1782); and that the conveyance in Hope's favour was merely intended as a security for repayment of a sum of money advanced to tne Ax Maxwell Morison obtained from Macfarlano a tack of ** certain heritable subjects," which he took actual possession of and built on. Maole, waa assigned by him to his son Wil- liiun, afterwards Earl of Panmure; and, on 8th June 1730, Mr H. Third, That although ^e warrant had been made expressly returnable, by the granting Justice^ to *' me and another Justiee 01 tba Jreace for the county of Inver- ness," the after proceedings hai, m point of fact, been held before two j ustices, of wnorn the granting Magistrate was not one. And sold also by Jambi Doncak, Bookseller^ Glasgow; J. Sin Brand Son, Bonk- sellcrsy Perth; Thomas i VIillkr, Bo(Asc; Uer, Dundee ; Hi MWN and Co., Booksellers, Aberdeen ; Jouk Dick, Bookseller, Ayr; H. He is precluded, where the party asked to depone ceases to have an interest in the subject, as in the case of his having granted an as- signation. If there has been an anomaly before, die Court onght now to find, that it is competent to refer to' thd oalji of a bankrupt, as to any alleged reversion, but that it is not competent so as to affect thd interest of his creditors.

We encourage the use of public domain materials for these purposes and may be able to help. His Lordship held, that the provision of L500 to Mrs Brown was a debt against the whole ex- ecutry.— 3. For the younger cbildnn — Dean of Faculty and Smytbe ; Tho- mas Brace, jun. This agency had been examined by the accountant of the Bank in September 1803. Magisteatbs or Di NGWALU Rigbi of Salmon Fishing — Res Judicata.— An action of molestation, declarator, and damages; was brought (April 1825) at the instance of Hugh Muoro, l Esq. 57, restoring these rights to the heir-male and representative of the family of Cromarty ; 4M, A Crown char- ter (1819) in favour of the pursuer, Mrs Mac- Yo L' I,— No. kenzie, containing the said rights, and sasine fol. All of these deeds conveyed, in general terms, a right to the whole fishings on the river Conon. [^ downwards, had been redueed* Lord Balgray understood the rule which the Court followed^ when an election was sc; aside, which involved by its reduction the reductior^ of several previous or succeeding elections, and when a petition was presented for intcrim-ma* nagersj was, to go back and make the se1ectioi from the last magistrates Ifga/lt/ elected. They accordingly raised processes of constitution against the petitioners (heirs-por- tioners of Ladies Essex and Mary Ker), and obtained decreet, cogniiionis causa^ against the ^aid petitioners, and upon these decreets exe- cuted and recorded inhibitions on their debts. 6-] SCOTTISH JURIST, n Against this Interlocutor, both parties re* claimed ; — ^the pursuer, upon the ground that he was entitled to have the action remitted de piano to the Jury Court, without awaitting the issue of the count and reckoning ; and the defender, upon the ground that the Lord Ordinary had not sustained the objection to the competency of the actio Di — in respect that the pursuer had not reduced, but, on the contrary, had acquiesced in the Sheriff's decrees. Upon these, tlie piilrsuer was apprehended (March ia22)Y and to avoid incarceration, gave an order upon his ctok- account for the sums contained in the decrees. queen and Mackintosh an assigntition, bearing tvarrandice Jrom fad and deed^ of the grounds of debt, thefpursuer succeeded in recovering, by ultimate diligence, the balance due upoa the note from Duncan Campbell, one of the parties in it. — This was an action at the instance of the Edinburgh Portable Gas Company, for recovery of certain sums alleged to be due by the defender, as a partner of the said company. IO each, in a paper of proposals which was issued previous to the formation of the com. lowing erounds: — That he had only signud the proposals, with a prospective intention of be- coming a partner of the company, provided it was formed upon the plan set forth in theso, proposals, subject to modificat on or altera- tion onlif by a general meeting of subscri. Sd^ That nevertheless the said committee had drawn up a contract in direct violation of the original proposals : That the said contract empowered the company,— 1st, To manufacture gas, — 2d, To manufacture gas from coal and other substances, — Sd, To enlarge the capital, and increase the number of subscribers, — (th, To sell their gas at any place within ten miles of Edinburgh, — 5th, Fixed the duration of the Company at 60 years, &c. ous purts of a considerable property, which could not be held to be runrig, anil broken down as such, merely because one or two small stripes, belonging to the respondent, run up the property to a certain extent ; and in particular that one field, Whiteraes Cross Acre Hole, al- leged to be runrig, consisted of a continuous stripe of 8 acres 3 roods 28 falls, which was only intersected by a road, and could in no sense be termed runrig, and that it was from its situ- ation particularly favourable for villas, and there* fore valuable to the advocator — The Sheriff al- lowed the advocator a proof, that any of the lands sought to be included in the division exceeded four acres, which he assumed as the criterion of extent as to runrig lands ; but he limited this proof by a finding, that wheresoever a road intersected a field, the parts of the field on each side of the road, though belonging to the same proprietor, were to be held runrig of one another. — In the former action m the Admiralty Court, the suspender stated himself as owner ; therefore the pursuers of this action were not to blame for continuing to give him that character. His Lordship considered it unneces- sary to go over all the particulars, becau M a Single instance was sufficient. She and Alexander then removed to anotlier house, which it was proved was stocked with the same furniture whicn had belonged to old Crai« gie. In No- vember 1817, Morison, in order to carry on the Imildings on this property, obtained from Ingli? Maule executed a new tack of Brechin, which he likewise attempted to fence With irritant and resolutive clauses. Upon 20t K July 1730, the two assignations in fee-simple Were recorded. Expenses — Held that Inferior Court decrees for expensei extracted and diecharged, are not liable to be opened up on general allegations of overcharge and non-taxation. over the said property, principally with the view of paying off the previous burden of £B00. Fourth, That m violation of the statute, these Justices had proceeded to take down the evidence in writings thereby turning f;hemselves into a Court of Re- cord, and increasing the expense of trial, with- out any authority, to the party accused. " /wttontf.— ^rs Loc KRABT & Others, — Bespohdentu Tutor and Fupil^A turn of money haoine been heritahfy se^ cured tojjupils, andn discharge granted to the debtor ^yium tors-daiwe, eonttining \abiolute warrandice to the Mtor, h U n4tt uecmed (^ u .qwerum, nor t W after the yetfre of puin Uarity fiad exftired, Mid the amount having been re-len$ 'out on security, which proved unavailing — Held, Isl, That thf discharge uhu void, ana the original debtor liable ; but H, That the t^m, wh» hnd snb Kribed tkediseharge^ were^ble ' (n rdi^* The late Charles Loekhart was survived by his -.^«f. Ca Awroan, Bookseller, Kilmarnock; Jou M Jo HNSTOK, Bookseller, Dumfries; John RANri NS, liookseller, Falkirk -, and Gidkot MAt Tf^iii. The result that hfs Lordshijpcame to was, that the oath of the bankrupt could not be competent to affect the interest of his creditors. Lord Cringl^tie was Lord Ordinary m this cause, which he considered to be one of the deep^ est importance to the law of Scotland.

The letter of 20th December 1803 did not disclose the whole motives of the Bank for demanding additional security : and there was nothing stated to shew that the Bank were dissatisfied with the conduct of I here agent. Tlie power of the Court w^ undoubted to recal inhibition, either xn satis- factory security being found for the debt, or when the creditor otherwise possessed ample se- curity, as was found in the case of Bremner, 13th November 1821. Lord Craigie thought the warrandice here one from omissions as well as commissions. In a question between the landlord and the te- nant or his assignees, they are personal rights ; therefore, in a competition between two bonajide and onerous assig- nees, the landloxti t^ bound to prefer him who first inti- nates hu as Mgnution, (which is the way of completing a personal right), and to put him in poases«ion accordingly. It is said, but not ascertaified, thut there was one sob-tenant,' Rowan, at the time Missm Inel Hi obtaitied their right; but afterwards the whole subjects were sub-tenanted, and for two yeara possessed by persons to xvhom Mr Moriton had let them, and from whom be uplifted the rents, yet no intimation was made to any of them." ** Ihtimntion after the seqiiestrcttion was clearly too late, and ineffectual, in terms of the stutute 57 Geo. a: 137; This attempt to intimate to the aob-tenantr •hews the sense of Messrs Inglis of their own negligence in having omitted to make intimation of their assignment during two preceding years, aud that the measure- was ne- cessary to complete their rghr." '* On the whole, we think that the assignment to the lease was not effectual to give a preference to Messrv Inglis and Company in competition with Mr Morisou'a othir creditors.'* (Signed) ** D. Earl William was bound to enter in virtue of the entail, and to have disregarded the fee* simple rights. In 1811, Mr Campbell was appointed factor for Mrs Skene of Hall- yards, one of the defenders clicsnts, for the 4lt- ties of which office he received 50 guineas per annum. The parties differ as to the fact — y^ hether the expenses of the decrees were taxed or not T But as they are evidently not random sums, and are apparently moderate, averaging, exclu- sive of the expense of extract, less than 20s, each, there seems no sufficient cause for opening up the decrees to any extent. With regard to the berita Ue- debt, his Loroship) 24th January 1829, " Repels the objections to the foregoing state;- Finds, in terms thereof, that the sum, as accumula- ted up to the 2jth day of December 16^ years, amounted to the sum of L3696, 2, 5. Janet Cum- ming married, but died without leaving any de- scendants ; Robina Cumming married John Barbour, weaver in Glasgow, and died, leaving' two children, John and Janet, (the former of whom went abroad,) and by her contract of mar- riage with the said John Barbour; Margaret Barbour and Janet Barbour, sisters of her said* husband, fell to succeed, failing children of the marriage. Of these proceedings, the present ac- tion of reduction was brought by Walker and Johnston, containing also a condnsion for repeti- tion and damages. In the year 1804, the pre- sent pursuer purchased the estate of Collonsay from Colonel Archibald M'Niell, when it waa stipulated, that the pursuer should retain s sufficient part of the price in his hands to pay the above heritable debt. There was also a serious error in taking the eyiitence i down ; for a right of appeal was not Intended ; by this statute to be ^ven upon the tneriu of | any procedure under it. MMCt'i Vish, country agent For the Re- spotiflent.— -Patrick Robertson and Chas. His Lordship thought that in this case the oath ought not te be received, as it might affect the interest of the creditors. — It is ad- niitted that there is no chance of the creditors being naid ; therefore this i» a claim to take away the fund from which the creditc M^ are te be paid.-« The Cburt would recollect, that the respondent was her uncle*s house-keeper, a per- son whom the Act of Parliament oraers to be examined in relation to the affaifs of tlie bank* Digitized by Google No. The onl^ case was that of Hal- kerston, relative to a judicial factor. The j^eneral opinion is, that the mere circfinistance of bank- ruptcy renders an oath hiept in all cases; In cases where the interest of creditors only is con- cerned there is no decision allowing the refer- ence.

9 securitj, made about a month afterwards, shewed that these statements did attract their attention. The decision in the case of Veo^ man aminst Elliot and Fotter, 2d Februarj^ 1813, on which Inglis and Compmy rely, mxy perhaps be Justified by the specialties which occurred in it ; but some of the observ Htions, which are stated in the report to have fallen ' from the Bettch, appear to be of questionable authoiit^^ ft must be Rdmittpcl, that some inconvenience may arise from this doctiine, where a tenant assigns his lease, mean- ing to remain in possession himself a» sub-tenant to his ajisifrnee. By what criterion is the nature of this possession to be fixed ? That the two dieck-bars (alle:i:ed to have been injurious) were situated in the Calder district, and were in ope- ration before, and im to- the date of the pur- t Buer*s lease — ^that ttic pursuer was bound to have inquired of the Calder district, who alone were re^^ponsible, whether it was intend- ed to remove them. He will shew my commission from the' ijonourable Basil Cochrane, and he vi\\ deliver to you my re- ceipts and diitcbarges for your rents, on payment being made to him. S." There was no writteji cpntr^ct of copartnery, but the business was mansgcd by the kte mv Campbell, and the defender, a;s having equal powers ; and the deeds written by the clerks bore, that they were the clerks of James Thom- son and Archibald Campbell, W. The defender contended, that Mr Campbell's interest in the copartnery was one'third only, instead of one^ ha Jfs and that it only commenced on 1st April 1813. CNo.1S ^r haying become bankrupt, Richard Griffin, lf the Barony of Gorb^ against M'Kechnie, calling on him -to count and reckon for Intro* mission with the said sums, and to make pay- ment to pursuer of the balance thai; might Ibe iouiid due, and to free and relieve the pi^- .«uer of an action brought against him by Mr James Boaz, accountant in Glasgow, for pay- ment of £l4fi 148., beinp^ the amount of an ac- count incurred in the said action at Potter's in- stance. The settlement of eth July 1 825, was no doubt made when the pursuer was in the custody of a mes« senger; and had any specific objection been made to , the charges for business, or the expense of diligence included in that settlement, there might have beetr ground in the circumstances for still allowins them to be taxed i and although there are general allegations of extravagant charges, no specific objection hat been made to any particular article of the accounts ; and, in such circumstances, the Lord Ordinary sees no cause for reducing. And, in the action for the personal debt, tlir Lord Ordinary, 24th January 1829, Digitized by Google ^e. 2U ** Sustaips the clakn of Dr M'Nei H's represeotp- lives to the sum of L330 Sterling, contained in his joint acceptance with Daniel M*Neill of Gallocheliy, 'dated Sd January 1793, and payable at Martinmas that year, with interest of the same from -th« said term of paytneoty and daring the not payment ; Sus- tains also the claim of Dr Mc Neill's represientatives ,to the sum of LZ19, 39, Sterling, bein^ the sum awarded by the extract decreet-srbitrat pronounced ,«fi the submj SMion between Dr M^Neiil and tike paid Daniel M'Neill, wifh interest of that sura from and since the 1 0th day of February 1796^ the date of the decreet-arbitral« and in ti^ie comin;; during t Vi C not payment: Finds, that. [No r4 cemed in terms of tbe libel, and found expenses due. In 1799, a competition for the rents of th^ subjects took place before the Bailies of 'Glasgow, who found tnat they fell to be divided into two parts, — one half to belong to Walter Combs, and the other half to Janet and Marga- ret Barbour, the sisteps of John Barbour, who had man led Robina 'Oumming, for behoof of tlieir nepliew, John Barbour, who had gone abroad, and for their own behoof asiieirs of pro- vision aforesaid, should the said John Barbour •not return. The Lord Ordinary thereafter pronounced the following interlocutor and note, which sufficient- ly explains the grounds of the judgment:^ . — Having heard parties' pro- curators, and thereafler coasidered the closed record and whole process, sustains the defences for 8ir Wi U liom Forbes and Company, assoilzies them from the conclusions of the libel, and decerns : Finds the pur» suers liable to them in expenses, of which appoints an account to be given in, and when lodged, remits to the Auditor to tax the same and report.** ** Note, — The Lord Ordinary does not see why it was competent, as was admitted by the pursuer in ar« Digitized by Google No. In 1817, there- fore, the whole children, except the respondent and James Laing, wl\o had gone abroad and died there, entered into an agreement, which narrated their father's settlement — stated^ tlie insufficiency of funds for carrying its provisions into execution — and contained, on the one hand, a renunciation by all the parties of the provisions in their fuvour; and, on the other, an obligation by the respondent to pay to his brothers and sisters £50 each in lieu of the said provisions, and that at the first term of Martin- mas after their mother^s death. for 1549,' inr which is contained an entry of thto servide of Alexander Bai Uitt as heir inr special to^ his father in the lands of Jerriston. An autlienticated copy from this document lifas ob- tiuned from the Register-House, and presented to the Chancery clerks, who added it to theii^ books, ancf gave ont an extract of the retour in the usual form. The Lord Jus Hce-Clet'k .concurr^ with Lord Moncreiff. As bis Lordship could find no au- thority or principle for this, and as the oath would affect only the interest of creditors, the Court were bound to find the reference incom- petent.

Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying. -that the parties who shall be found entitled to the whole or any part of the said price should be decerned and ordained to execute discharges ond renuncia- tions, so far as their rights, debts and diligences affect or extend over the said subjects/' The Lord Ordinsry found and declared the •ub^'ec^ disencumbered (29th May 1827), " of the said real lien or burden, to the extent only of the balance of the fupd in medio, payable to the said John Wightman.*' — And to this interlocutqr his Lordship afterwards adhered, (13th November),? For the deff^nders it was contended, that from the executry there must b^ deducted, before the amount of legiiim could be ascertained,—? He was, besides, a farmer and grain- dealer ; and afterwards became a house-builder, ship-owner, and distiller. Reasons of advocation and answers liav- ing heert lodged, the Lord Ordinary , that Uiere was a contract with Baird for the whole work; and that the presumption must follow, that Low was only a sub-contractor, employed by Baird, and trusting to him for payment. The trustee of Ladies Essex and Mary Ker, op- posed the claim of the legatees upon the follow, ing grounds: Ist^ By virtue of a decree of reduc- tion (1806), by which the above deed of instruc- tions, in so far as it conveyed heritable subjects, to which Ladies Essex and Mary Ker were theheira alioqui successura^ was reduced and set aside. The messenger not leaving used due diligence in putting the caption into execution, the defenders brought an action against him and the .pursuer, his cautioner, for payment of the debt and expenses. R0BERT BUENS, Jdvocoior, V, Wl LUAM Bo GLE, Retpondent, Runri^ Lands — ^The respondent, Bogle, in 1824, raised an action before the Sberif F-depute of Lanarkshire, on the act 1695, cap. This decree was extracted ; and a bill of suspension of a threatened charge having been presented, answers were lodged, on advising which, the Lord Ordinary on the Bills, 5th August I8289 sisted execution, and ordered the bill and an^ swers to be printed, in order to be reported to the Court. Lord Alloway considered this a very unplea- sant case in one respect, as it showed a party to be anxious of taking advantage of an argument in law, to get wn to the mo- ment when the disputes had commenced. Na id O.— Mss TON V, C&aioie] Mffoealdci^^Projperttfin^r^VJ illiafa Craigiesei nior gifted certai|;i rurniture to his son Alexander. Lord Craigie entertained doubts as to th9 soundness of the judgment of the Sheriff, which had been cohfirmed by the Lord Ordinary. In these circumstances, and as both naities were anxious that no irregukirity should occur in the conduct of the cause, the matter was broimht nnder the notice of the Lord Ordinary, who neld, that the clause in the statute 1 and 2 Creo. The production having been satisfied, his Lordship made " great avizandum, in terms of the statute, to the Lords of the First Division of the Court, with the ■ommons, and whole process ; and ordains the said smnmons, with the record closed in the Ad- miralty Court, proof and productions, to be printed by ^e pursuer, and boxed ^uam primum J* . — Couniel for the Pursuer, Maidment— John Jameson, S. The present mirioer is h^hr ttnder this investiture. Xbi^ ^Py n Q\(^ Pf PPp Wd to sist himael^as man.- ^a^y £0^ fur^v^ ^ ^^^ process ; and it f|i»ii^taiiie4» tljriaf; as 'fumbull Ijiad not the jqiat^try amino .remanendi, and this mandatory . le upon him of the complaint or of the warrant for hi^ apprehension. A party may refer to the oath of his brother or uncle. His Lordship could not acauiesce in the reasoning, that Heeanse the uncle, could not be examined as a wit Viess, still less could he be allowed to depone ou a refer- ence.

We also ask that you: Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. — adding, in a note, " The real creditor cannot be called upon to discharge the land of his whole debt, on payment of a part of it only." When the case came to Wight- man's counsel, he advispd, at the bar, to assign Wightman's whole right, on getting full pavment Upon tl^e fund in medio, there was a claim lodged at the instance of Mr Robert Adarason, writer in Dumfriei, who craved to be preferred primo loco, in virtue of a right of hypothec which he held over the title deeds. Ist, The L4000, as being a debt affecting the whole mass of the executry funds ; 2d, L500, which Cochran, senior^ became bound to pay to his daughter, Mrs Brown, at the first term of Whitsunday after his death, as contained in her contract of marriage with Thomas Brown, her husband ; 3d, Arrears of feu-duty due by Mr Cochran, senior, at his de^th ; 4th, L500 re- ceived by Mrs Johnston, (claimant of the le^i- tim), received from her father duriqg his life, with interest from the date of the advance ; and, 5th, Value of house in Musselburgh, dis- poned to Mrs Johnston by deed of Qtb July 1804. Of this date, (20th December 1803), the following letter was written to Mr Paterson by the Bank Direc- tors : — ** The Direciors having had under re- view the cautionary bonds given by their agents, — finding that some of their cautioners are dead, and, at the same time, considering that the present amount of your caution is too small for the business done at Thurso, they desire that the amount of your caution may be LI 0,000, by a new bond for that sum, or by a bond for new gecurities corroborating the present one for L5000. 1804, the pursuers signed the ad- ditional bond of caution for L5000. Lord Gillies thought it clear, that the advoca- tor had contracted with the heritors, although he may also have contracted with Baird. 2d, In respect that the special disposition of the lands of Samieston, executed by John Duke of Roxburgh, to whom they Were dis|)oned in 1740, effectually vacated the destination to the heirs of tailzie succeeding to the estate of Rox- burgh, and carried them to his sod Robert, and his heirs of line; and the general disposition by the said Robert which carried them to John last Duke of Roxburgh and his heirs of line. Sequestration pendente ///e.-— The estate of Carleton was held, since 1717, under an jentail containing the usual prohibitory, irritant, and resolutive clauses. No defences being stated, deoree In absence was pronounced against the ptirsuer in May 1821, both for the debt and the expenses. 23, for the division of certain lands belonging to theadvoca* tor, Bums, alleged to be runrig. There, was no infoimation before the Court to shew whether John Ritchie executed a settlement or. The suspender was in possession seven years after his death. Upon his death, this gift wfts found insufficient to exclude the /u« retictce and legitim. If the evidence in this case should be held to amount to r virtae of the sasine in 1771, and Wa Uon and his authors having held the assignation to the bond of reversion for up- wards of 40 years, — ^it appearing to be absolute, and no declarator of trust or other action being brought against die holder in that time ; thereby rendering him the only person competent to call Hume, as John Watson's representative, to ac- count. On 6th June 1739, the tack of Brechin, in favour of Mr H. W|i9 omaii, Y ^Ad^t in point of responsibility 9r%iti Torppujil, lie shqula be received ; but the j Loprd Qrdin^ijry hel^ that a responsible manda- tory C# sim^^^ ' Lord Ordinary, Corehouse.-^^cf. Se- cond^ That be was allowed no opportunity of citing witnesses in exculpation, although the warrant of apprehension contained an express authority to cite them. But there were difiiculties in the case of bankruptcy, either in regard to witnesses or reference to oath, be- cause the real interest is in the bankrupt's cre^ ditors; The rule is quite ffxed, that a bankrupt may be a witness when jjiis testimony is • offered f o diminish, but not when offered to increase the funds. Neither could his Lordship adopt the general reasoning, that in no case can a party be precluded from- a reference to the oath of the opposite party. Upon the same principle, Mr Erskiner has corrected an error that Lord Stair commit^ ted, with regard to the oath of a correus debendu The principle was clear in this case.

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. The Court refused the note as k'egarded the tenants, and adhered with expenses, — ^in respect that these tenants had the power of appearing for tliem- selves, if they considered that they were ag- grieved. Wi Uoh.— i) presented a suixiraary complaint against the re- spondent to the Magistrates of Glasgow. The legatees founded their claim on the following deduction of titles : — The lands of Samieston were feus held of the entailed superiority, which was included in the titles of the entailed estate of Roxburgh, under the designation of the lands of Hownam, of which these feus form a part. Turner and Logan, and the late William Cowan, (now represented by the other defender, Henry Cowan, ) purchased each one-sixteenth share of die brig Hero of Ayr, and paid the price there- of. He was opinion» however, that the question before them regard- ed only the Redcraig quarry ; and that an un- derstanding to thit effect should be expressed in this interlocutor. He had been assumed as a pj^tnertp the ej Ltent of a one-eighth share, which was all he held at the dissolution of that concern. When Sharp ceased to be a part owner, he, with consent of the other owners, delivered over the vessel to the charger as ship'a-hus- band ; and in particular, he explained to the charger his previous practice of insuring the suspender's half of the vessel. His Loidship had accordingly prepared full notes, which he liad read over and over again, and should merely read these as containing the opinion which he had formed. 2d, That it Tfas proved, by the evidence ih process, that the lot- tery ticket in dispnte was tlie respondent's pro- perty : and 3d, That even if, to a certain extent, nirther proof were deemed necessary, the res« pendent most be entitled to supplement the pre- sent proof by the oath of the bankrupt. The Court recalled the interlocutor in hoc siatu^ and remitted to the Lord Ordinary to prepare and close the record.

It has survived long enough for the copyright to expire and the book to enter the public domain. Af- terwards, however, (13th May 182.5), when it was discovered that this form of action was in- competent to' obtain dccernfturc m terms of the donclusions therein contained, the advocator brought an ordiiiary action against the respon« dent, which' was conjoined with the summary complainf. In 1729, John Duke of Roxburgh executed, in favour of his son Robert, a disposition of the entailed estate, including the lands of Hownam, and consequently the superiority of Samieston ; which disposition contained procuratory of re- signation. Messrs John Taylor and Sons, Ayr, and Messrs M'Harg and Wallace were also partners at the same time. The other Judges havfaig concurred, the note was refused on the understanding expressed. Mr Buchunan proposed to treat him liberally in the new projected establishment ; and the Lord Ordi. The accounts for the neict voyage, in 18, were sfoted with reference to the altered state of the ownership, the suspender's share being regularly stated as one half. The following is the substance of that opinion n^ Lord. Mt U^Chaf^e upm a protested Wf granted to a wjfe h^itre marn''get MMtf Aitket 9umendi6d^ m retpect of the protest b^vig executed in name 9f the husband* In 1820 Mtsa Mary Sftntfa, Who possessed considerable fiknd^ |)Iaced in her bt-other^ the gnspender s hands, L8d O, for which he granted his promt8S6^/-ifo Ye m these terms :— « Arhroat K; 18M Auguii 1820.— tour years after date, I promiad to ^aiv to Mfsa Wary Smith, or order, at the town-clerk*8 office here, LS^i O Sterling It was pleaded by the advocator, — 1st, That a plan nad been preconcerted between the respondent and her uncle to defraud his cre- ditors ; and 2d, That the bankrupt would have been incompetent as a witness in any ques- tion merely affecting his niece, from the rela« tionship of the parties ; and that it was much more incompetent to refer to his oath, after he was bankrupt, a claim made by his niece, which materially affected the interests of his creditors. Parties were also heard by senior Counsel at the Bar, by the appointment of the Court ; and', when the cause. On again hearing parties up- on this remit, the Lord Ordinary appointed the reasons of advocation and answers to oe revised.

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Sir John Sinclair was a director of the Bank, and was well acquainted with Paterson and his affairs. Pechapa it may be removed by the 8S«igi:ee taking and recording an instrument of possession, and then grantfng a sub-lease, specifying ttie time at which possession is redelivered to the sub- tenant, and his entry lakes place. The entailed rights must prevail, where there is nothing to give a prefe- rence of one over the other. His Lordship was inclined to hold, that the process in 1740 was such an exercise of the ri^t, as obliged the substitute heirs to con* sider William as entitled to prescribe, and to call upon these heirs to take steps for their security. ITi Lis a Vihi pendens in respect of the said Sheriff-Court action. Whatever tran.sactbn^ you have with him in relation to the estate of Auchterarder, I shall ratify and confirm ; and his receipt for any part of your rent, shall be equ^l to mine. The defender also resisted the claim for a quantum meruit to Mr Campbell as clerk. Co^rutteei'^Lu UHl Uy of The late Geoi^ Mackensie, Esq. After a great variety of procedure, the following interlocutor was pronounced, 4th Feb- ruary 1828 ;— " Having again conudered process, with the jproof adduced by the parties, parole and documen- tary, and minutes on the import thereof, of new de- cerns against the defender for L79, 88. MACA2n Rit W« Tran^'renee^Process may be tran^erred, a Uhou^ not coiled in Caurl till after death of Defender, This was 8 qnestioit Sported W the lisird Otdiiiny, to have the opinidn of tke Inner- Honse, as to whether, one of two defenders, (John and Oeorge Maieandrew) harhig died after the summons had heen exeetfted^ hot before it had been called in Coart, it was competent to transfer that process again Bt ihe deceased defender s representa Chres. eptred; O^rtfe, father of tife pthef defender, died. Again'st this interlocutor, the pursuer p^ sented a reclaming note, in which he maintain- ed, that this interhicutor waa inconsistent with a previous interlocutor of the Lord Ordinary, in the same cause, where he had pronounced against the defender (Smith) decree of reduc- tion contra non produda^ Anduding several de- crees called for, of whicb tne only evidence pro- duced, was the precqvts following on these de- crees.) The defender answered, that these decrees could not he produced hy him, as they were not in his possession, but in the Sheriff-Court, where they were obtained ; and he further pro- duced a regulation of the Sheriff-Court of For- far, shewing, that no decree can go out there for expenses without being taxed. the sure of Ul OO paid by Fre^ derick M'Neifl to Dr M'Neil! The pursuer brought the present advoca- tion of that judfcment ; and the Lord Ordinary, 3d February 1829, ' ** Remits the ttame timpliciter to the Sheriff, and decerns : Finds the adyocator liable to the respon- dent in es penses.'^' The pursuer presented a reclaimin(2^ note against this interlocutor; on advising which, Lord Bai^'ai/ was for adhering. The said Janet and Margaret Bar- bour then transferred theirinterests in the sub- jects, sub JQcttotheirnephew*s right, to James Mit- chell; printer, Glasgow ; and afterwards, in 1803, Walter Combs, having obtained reconveyances from George and Smith, granted a lease of the half of the subjects to the said James Mitchell, who took possession, in virtue of these several rights ; and afterwards, in 1805, obtained a con- veyance to the whole subjects generally, from Walter Combs, and the foresaid Margaret Bar- bour. 150 SCOTTISH JURIST, sss ^ment, for the defenders to t^nnt ma assi^atioiiy ■nd thereupon for diligence to proceed in their name, it should be incompetent to do what was a Terred to liave been done in this case. Heriidble Bond^^Dttcharge of^ tmder a CUnae of Re' dempt KUL By bond and disposition under reversion, datea 1st August 1793, the pursuer, with con- currence of his voluntary interdictors, granted him to have borrowed irom €he late WOliam Morrison of Kirkland, £296, 4. Sterling ; in security of which sum, the pursuer disponed to Morrison, his heu*s or disponees whatsoever, iieritably, but under reversion, the lands of Hopehead and others. The Lord Justice-CZrk stated, that the par- ties were in perfect bona fide in bringing this declarator; and tlmt the whole expenses had been most jiist\y incurred. find Ritchie and Miller, Agents.— Mr Fergunon, Clerk. This deed of agreement was not regularly test^ ; but it was delivered to the respondent, who continued to possess the whole heritable property disponed to him by his father, in virtue of the settlement and agreement, from the period of his father's death till November 1821. Upon intelligence of this, anhaildorf, and 'ohtaitting d H ex- tract attested in the Utiim fortn, infers no wrong ; ^erefore, tiie resfoondeilt^^nottdtfntified him- ijielf Witli ;the clei^s ia Ae Regteter-Qoiise, «ran ^ppoldng they had actied improperly^ ' '0h a^sin^ ^e case, ^ X^uct found ** the complaint incompetent" and dismissed the eame^ assoilaied the respondent, and found expenses ^ne. His Lordship was clearly of opi- nion, that the whole trial' should hare been held before the particular Magistrate who had re- eeived the complaint and issued the warrant. But his Lordship did not wish to lay down a li^neral prin Hple, that the mere circum- stance of bankruptcy was fatal to the oath.

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