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cash and furnishings set forth in the accountant's report, do fall under one or other of the descriptions in the interlocutor of the 9th of March 1833, with the exceptions, Ist, of the sum of 10s., being the additional articles of the account of furnishings ending in 1823; 2dly, of the sum of £2. 7s., consisting of cash advances said to have been made by Mr Dunnet to Mr Fraser ; and 3dly, the sum of £10. 15. 3, being the business-account alleged to have been paid in August 1824 by Dunnet to Robert M‘Kay on account of Fraser, the common debtor: Finds that these ibree sums are not proved, by the common debtor's oath, to fall under either of the descriptions mentioned in the foresaid interlocutor, and therefore, to the extent of those three sums, sustains the objections to the accountant's report ;Quoad ultra, approves of the report; finds, accordingly, that the balance now in the hands of the defender, Dunnet, amounts to the sum of £40. 14s. Sterling, with interest from the 1st day of January 1830, and decerns against the said George Dunnet, the arrestee, for the same, superseding extract of the said decree until the pursuer shall have relieved the said arrestee, in terms of the interlocutor of the 9th of March 1833, of the bond of caution granted by him in the loosing of arrestment on the dependence of the action of William Sutherland against Fraser, the common debtor: Finds the defender, the said George Dunnet, entitled to his expenses, and allows an account there. of to be given in, and to be taxed by the auditor,"
The following note was subjoined to this interlocutor:
“ Note. It is with some hesitation that the Lord Ordinary has ultinately formed the opinion that the articles contained in the exceptions in the above interlocutor are not sufficiently proved. Looking at the whole tenor of the deposition, it appears to him that the failure of the defender, even in those points, is mainly imputable to the very natural uncertainty of the common debtor's recollections as to the precise dates at which the alleged transactions took place. Considering, however, that the defender, the arrestee, bas been substantially successful in all the important points of the case, and that a very great, and, as it appears to the Lord Ordinary, unnecessary expense has been created by the very critical mode of account. ing, insisted in with so much pertinacity by the pursuer, the Lord Ordinary thinks that, in justice to the defender, be must be allowed his expenses.”
Next day the following interlocutor was pronounced with reference to the question between the appellants and the respondents, Colonel Williamson's trustees:
“ The Lord Ordinary having considered the process in so far as regards the question between the pursuers and the defenders, Colonel Williamson's trustees, and thereafter called the case -- Finds the pursuers entitled, under their arrestments, to any future dividend that may be declared and become payable to the common debtor by the said defenders in their character of trustees, with any interest that may become due thereupon, and that to the extent only, and in extinction pro tanto of the debt due to the said pursuers ; they always, before extract, relieving the other arrestee of his cautionary obligation, in terms of the separate interlocutor of yesterday's date; finds no expenses due to either party, and decerns to the above effect accordingly."
To this interlocutor the following note was annexed :
“ Note.-. In this case both parties have carried their pleas too far; the pursuer in maintaining that the assignation in favour of Dunnet was of no effect whatever in divesting the defenders, the arrestees : and the defenders in contending that the assignation, though confessedly only an assignation in security, totally and absolutely divested them, without any regard to the question whether the debt secured by it had been paid or not, a point which bas already been decided against the arrestees by the interlocutor of 9th March 1833. In these circumstances, the Lord Ordinary thinks that neither party is entitled to expenses."
These interlocutors were adhered to on 29th June 1837, upon which (Clyne having died in the interval)
the present appeal was presented by Clyne's trustees and executors.
Lord Chancellor.—My Lords, there are some points wbich have been addressed to your Lordships in the course of this discussion which are points of form, and your Lordsbips have also heard the merits of the case discussed. My Lords, the first point, namely of form, is, how far this case falls within tbe provision which prohibits parties from coming to your Lordships, upon interlocutors which have not been the subjects of a reclaiming note to either of the Divisions of the Court of Session, namely, appeals from the interlocutor of the Lord Ordinary only. My Lords, a case has been referred to as deciding that point, namely, the case of Smellie v. Miller. In the view I take of the present case, it will be unnecessary for me to come to any conclusion upon that point. The only object of my referring to it at all is, that there may be no misconception as to the case that has been referred to. My Lords, the case of Smellie v. Miller was a petition which was disposed of by the committee of appeal—not by your Lordships' House, and there. fore can go no fartber than the individual opinion of such of your Lordships as happened to be present upon the committee of appeal; but what was done upon that petition, your Lordships will see in a moment, does not proceed upon the ground for which it has been cited at your Lordships' bar. There were two interlocutors appealed from. The objection to the appeal, as to one, was, that it was an interlocutor of the Lord Ordinary; the objection jaised to the other, was not simply that it was an interlocutor of the Lord Ordinary; because that fact had been gone into by a Division of the Court of Session by a reclaiming
Those were the two points raised upon that discussion; and unless the committee had been of opinion in favour of the case stated by the petitioner on both points, the appeal could not have been dismissed. My Lords, Í bave no recollection of the case, or of the grounds on which it was disposed of; but it is clear that as there were two points raised, it could not have been decided in favour of the petitioner, and the appeal dismiss. ed, unless the committee had been in favour of the petitioner. My Lords, that question will be to be considered, in case it should ever be brought before your Lordships in a case in which it is necessary to come to a decision upon it. It does not appear to me to be necessary to enter into the discussion of that question now, being very distinctly of opinion, that your Lord. ships will find quite sufficient upon the merits of the case to dispose of the appeal now before you. My Lords, the merits of the case may be very shortly stated. A gentleman of the name of Fraser, being entitled to receive certain sums of money from the trustees of Colonel Williamson, and having transactions with the firm of which the respondent, Dunnet, is now the surviving partner, assigned his interest in those sums of moneyhis right to receive those sums—to the bouse of which Dunnet is now the surviving partner, for the purpose of indemnifying them against certain obligations which they bad come under for bis, Fraser's, benefit, and which obligations are specified in the deed of assignment. My Lords, it appears that a dividend of 10s. in the pound was received by the house of which Dunnet is the surviving partner; and it appears that the house, being in possession of this security, and therefore necessarily looking to receive these monies on account of Fraser, made certain advances in money to him, and furnished him with articles which be required, which raised a private debt as between the house and Fraser. After the first dividend of 10s. in the pound had been paid to Dunnet, there being a further dividend expected to be received from Williamson's estate, the present appellant, that is, the person who is now represented by the present appeal, namely, Mr Clyne, having also a demand against Fraser, arrests in the hands of Dannet such money as he might bave belonging to Fraser ; that is to say, such money as he otherwise would have to pay to Fraser, subject of course to all such demands as the house now represented by Dunnet would have against Fraser ; because it cannot for a moment be contended, that the party making the arrestment, arresting the fund, could put the arrested in a worse situation than he would have been in as against the party to whom he was bound to account. Whatever rights Dunnet had against Fraser, he necessarily had against Clyne, who could only claim from Dunnet that which Dunnet would otherwise be bound to pay to Fraser. My Lords, this case came before the Lord Ordinary in the first instance, and the first interlocutor was pronounced on the 1st of December 1832, and by that interlocutor the Lord Ordinary appoints the defender, Dunnet, to put in a statement of the account between him and Fraser, showing the balance that was due at the period of the first dividend: 2dly, at the date of the arrestment; and, 3dly, at the period of the second dividend,the second dividend having been received at a period subsequent to the arrestment. Now, my Lords, the next proceeding was an interlocutor of the 9th of March 1833, which interlocutor was made the subject of a reclaiming note by Mr Clyne, and was adhered to by the Court of Session; and that is the foundation of all that followed. It establishes the right as between the parties; and what has afterwards taken place, merely are the means by which that right is worked out. Tbat interlocutor finds first, “ That in the accounting between George Dunnet, as arrestee, and David Clyne, the former is entitled to take credit, in the first place, for the amount of the debts and obligations in security and relief of which the assignation to him by Fraser, the common debtor, was granted, and all the expenses relating to these debts and obligations.” That was secured and conditioned in the deed by which the debt was assigned to them: the second is now made a subject of contest for all sums paid to or for behoof of, and for all furnishings made to the common debtor prior to Mr Clyne's arrestment in 1825;" and, thirdly, "for all sums which, though paid for behoof of Fraser, the common debtor, after the date of the said arrestment, were paid in virtue of obligations contracted prior to the said date; but finds that Mr Dunnet, the arrestee, is not entitled to credit for any advances or furnishings made to the common debtor subsequent to the date of the said arrestment, and not falling within the preceding finding.” The result therefore, my Lords, is, that the interlocutor of the year 1833 declared, as between the party. arresting, namely, Mr Clyne, and the arrestee, Dunnet, that in taking the account for the purpose of ascertaining upon what sum that arrestment ought to operate, Dunnet was entitled to deduct not only the particular sums specified in the assignation under which he claimed, but that he was entitled to deduct all sums furnished by bim—sums paid, or furnishings, as they are called—to Fraser at the time when the arrestment was made ; and that he was also entitled to set off against what might be found in his hands due to Fraser, such sums as were paid subsequently, provided they appeared to have been paid by virtue of the obligations entered into prior to the time at which the arrestment took place. Now, my Lords, the only question, supposing this to be open now for your Lordships' consideration,-(and I am anxious to show tbe parties that the decision of your Lordships' House, if your Lordships agree with me in the opinion which I have formed, does not proceed upon matter of form, but that your Lordships have the facts so far before you, that if there were no objection in point of form, the decision to which your Lordships would come, would be precisely the same,)—the question is, whether Fraser, as against Dunnet, could either have stopped the second dividend in the hands of the trustees of Williamson, or have compelled Dunnet to pay over to him, Fraser, monies wbich he had actually received, leaving Dunnet to obtain payment as he could, of monies paid, or furnishings supplied to Fraser anterior to the period of the arrestment, or subsequently, in consequence of obligations entered into before the arrestment? My Lords, that no such law can exist in Scotland is manifest,—not only from some of the authorities which bave been referred to, but from the nature of things, because it is not a inatter of set-off; but here is a fund put into the hands of a certain party, and the person whose funds are so put into his hands, induces him to advance monies, which, whether the subject of any special contract or not, are obviously advanced upon the credit which he is furnished with by means of the assigna. tion, which puts into the bands of the party paying, funds belonging to the party to whom the monies are advanced, and which funds are to be accountable for that advancement of money. It might as well be said that a banker to whom monies or securities are given, nothing special being said upon the sub. ject, can have those securities taken out of his hands, without paying him the balance found due upon the money transactions
between the parties. My Lords, it does not however rest upon that, because Fraser himself is examined, (I shall presently consider how far that examination is correct, looking at the state of the pleadings between the parties); and Fraser says that it was a matter of arrangement between the parties that he drew those sums, and was supplied with the furnishings, in consequence of the credit which he was to receive on account of money coming from those trustees. My Lords, it is said that that statement of Fraser ought not to prejudice the question now between these parties, because it is not made a subject of pleading. My Lords, it did not arise upon the pleadings. The pleadings were these, -to what extent the plaintiff was entitled to receive the balance of the account pending between Fraser and Dunnet ; and, accordingly, it is referred to an accountant for the purpose of looking into the account, and reporting what, at the various periods stated in the first interlocutor, was the state of the account between the parties. In taking that ac. count, Dunnet claims certain sums, to which sums he is to establish his title. It may as well be said that, in a proceeding for the purpose of taking the account, every item of account is the subject of a special plea. It arises necessarily in the investigation of the accounts; and in the investigation of the accounts, Dunnet, having claimed a right to retain a certain portion of the monies in his hands for the purpose of paying a certain obligation, proves his right, first, by showing that he did advance the money to Fraser; and he establishes his title to it by showing that the money advanced to Fraser was upon the faith and credit of the money of which he beld an assignation. Therefore, not only is there no dispute, but there is no contest raised at your Lordships' bar, because the account, as taken by the accountant, and as acted upon, and the last interlocutor appealed from, is not the subject of contest as to any item of account which it contained. A very different course of proceeding must bave been adopted if it had been the intention of the appellants to appeal against particular items, but it is not attempted on the part of the appellants to bring before your Lordships a question upon the disallowance of any particular item. The appeal is for a different purpose, and not for the purpose of trying the question as to disallowing any particular sum. The interlocutor of 1833 laid down the principle upon wbich this account was to be taken, giving to Mr Dunnet the benefit of all sums which he could show to have been advanced to him, Fraser, before the date of the arrestment, or subsequently, in consequence of obligations contracted before that time. The cause has proceeded down to the date of the last interlocutor, which was the month of February 1837, without any appeal being brought before your Lordships questioning the propriety of the principle established in the decree of 1833. Interlocutors, in sufficient abundance, appear to bave been pronounced, eleven in number, all of which are made, in part or in whole, the subject of the present appeal. But against the principle established by the decree in March 1833, up to the time when this petition was presented, which I understand was in July 1837, no question was brought before your Lordships as to the propriety of the principle established in that interlocutor of March 1833. Well, then, my Lords, the result of all this investigation has been, that at the time of the arrestment there was nothing due to Fraser, because I consider that to be established beyond all controversy, that there was nothing that the pursuer could claim against Dunnet ; because, whether there was a small balance or not in the hands of Dunnet,
whether it was £7 or £30 in the hands of Dunnet, actually exceeding the amount, which at that time he had advanced and paid, he had at that time come under obligations, binding himself to make payments at a future day for Fraser, to an amount exceeding that which he had in his hands, whether it be considered one sum or the other; and it is impossible to say that the present party, who could not stand in a better situation as against Fraser, had any right to come against Dunnet to obtain a sum of money which he had in his hands. In that state of circumstances, my Lords, in the month of April 1825 this suit is commenced, and the second dividend is subsequent to that.
Mr Russell.-It was instituted in 1830.
Mr Russell.—The arrestment is in 1825, but our suit is begun in April 1830.
Lord Chancellor.- The process is in April 1825; and I asked the date of the last dividend, and I was told in April 1830.
Mr Russell. -January 1830.
Lord Chancellor.---At the time the arrestment took place, there was nothing in his hands. The whole suit proceeds upon the foundation of that arrestment, and the result of the investigation has been, that a certain sum, amounting to £40, was at that time due from Dunnet, not bowever payable; because there was an obligation existing between himself and Fraser which entitled him to be secured, and secured upon money in hand, against the consequences which might follow upon that obligation. My Lords, a question might be made (but it is not necessary to consider that), whether it was quite right to alter the security wbich the party had in his hands; and whether it was not giving the pursuer something more than the pursuer ought to have, he himself baving given an indemnity, in respect to which he had actual money in band. The pursuer, at least, cannot complain of that. The pursuer has all that he could reasonably expect, and perhaps it may be thought that he had sometbing more than he was strictly entitled to; but however that may be, the money balance is found to be £40. Now, up to that moment nothing is complained of. Your Lordships bave no appeal presented to you. The parties, from 1833 up to 1837, are proceeding upon the principle which established the right as bet ween themselves; and now the amount of the account taken is not in dispute- What is it then that has given rise to this appeal, by which, in 1837, the parties complained of an interlocutor of the year 1833, in which they had acquiesced from that time until the time when the appeal was presented ? They are ordered to pay the costs. Now, I have a very strong opinion, that if these costs had been otherwise disposed of, your Lordships would never have heard of the appeal from the interlocutor in 1833 ; and concurring entirely with those opinions which have been referred to, in which it has been stated that this House will not entertain an appeal for costs, it is indispensably necessary, in order to maintain that principle, that where parties appealing for costs, in substance mix up their appeal with some other matter of merits, in order to cover the appeal for costs, they sbould not be permitted to escape from that rule by attempting to mix the one subject matter with the other. But, my Lords, I do feel some satisfaction in baving heard so much of this case, as not to be compelled to advise your Lordships to dispose of it upon that technical ground; because, if you look at the liabilities of the parties to costs upon the merits, it seems to ine that there is no question upon it, and that the Court below bave done, with regard to costs, that which the justice of the case required. Mr Dunnet has no connection with the present appellant, Mr Clyne,-his transactions were entirely with Fraser, -it is for the purpose of a benefit to Clyne that he is permitted to come upon the fund in the hands of another person; and he cannot come upon this fund to the prejudice of that other person-he cannot take money which that other person is entitled to retain, or expose him to a liabi. lity for costs, to which he would not bave been exposed but for the intervention of a stranger. Now, I have already said that at the time of the arrestment he had nothing coming-it turns out, that by means of a subsequent dividend, not by means of any thing which he had at that time, but subsequently he had something, which, whether Fraser received or Clyne, bis (Dunnet's) demands being satisfied was a matter of indifference to him; but till that moment-till bis demands are satisfied, he is not in a situation to be compelled to part with this money to the one party or the other, for be bas still in him a right to look to that money, or any other he may receive, to secure him from any liability which he may have come under to Fraser; and it is only on the condition of relieving himself from that liability that be is entitled to retain the sum of £40. My Lords, then, what has the interlocutor done with regard to costs, so far as these parties are concerned? I am looking to Dunnet only. Why, so far as these parties are concerned, it bas said that Dunnet was entitled to retain this money, he being the stakeholder as between Fraser and Clyne, who was claiming as against Fraser, and he (Dunnet) being involved in litigation, merely because he had in hand a fund which was, so far as regarded the surplus, payable to Fraser, and therefore payable to Fraser's creditors. The only subject of contest is with respect to this
balance, which he is compelled to part with upon the performance of a certain condition; that condition never having been performed, he was never in a situation to part with it; and all that the interlocutor provides is, that lie shall not be put to expense and to costs by proceedings not arising out of his own act, but arising out of the act of the pursuer, who is seeking a remedy which incidentally involves him, Dunnet, as the stakeholder of the fund in question. My Lords, it appears to be quite a matter of course, and according to the justice of the case, and according to every principle by which Courts regulate their proceedings as to costs, that the stakeholder should be indemnified against the expenses which the litigation had occasioned, and with which he had not bing to do, beyond securing himself from the liability arising out of obligations totally independent of the party claiming, namely, Mr Clyne. Then, my Lords, other parties are before us bere, wbo have much less to do with it than Dunnet, namely, the parties from whom the monies were to proceed, which Dunnet, by his assignation, was entitled to.
Those were monies that Fraser in the first instance was entitled to. Fraser's right to receive those monies, had by him been assigned to Dunnet. Why are Williamson's trustees to be involved in that question? The party to whom they were bound to pay had, by his assignation, directed them to pay to another ; and Dunnet they had a right to pay to. I do not therefore see why it was necessary to keep those parties before the Court; but having been brought to your Lordships' bar as respondents, it appears that they have done that which the person to whom they owed a duty, namely Fraser, ordered them to do,--they bave paid to Dunnet ihat which Dunnet was entitled to receive by virtue of the assignation,-au obligation which, on their part, existed at the time when this claim was first made. They have done no more therefore than performing the duty which was incumbent upon them,—they have paid the party, as between themselves, that which he was entitled to receive. Then the appellant brings them here without any thing to ask as against them, because he does not ask for the £40 against them, but for the £40 against Dunnet, so far sanctioning the receipt by Dunnet of that which Williamson's trustees have paid. On this ground, therefore, I also think it is quite clear ibat the Lord Ordinary, though that is not made the subject of any complaint, has done quite right in not making the parties pay the costs. The Lord Ordinary gave neither party their costs;—he seems to have found (but it is not necessary to enter into that) that there was some reason wbich sbould preclude these parties from baving those costs,--the coinplaint is, that they ought to have been made to pay costs; and I think that the pursuer has very good reason to be satisfied with that, so far as-regards Williamson's trustees. The other question, as to denying those costs, is not now under your Lordships' consideration. It is quite sufficient therefore to say, that the interlocutor appears to be quite right, at all events in not ordering costs. My Lords, this exhausts all the points to which it is necessary now to advert. If your Lordships agree with me in the view tbat I take, your Lordships will atfirm the interlocutor, with
Interlocutor affirmed, with costs.
Second Division. --Lord Fullerton, Ordinary. Deans and Dunlop and Spottiswoode and Robertson, Solicitors.-[W.H.D.]
28th February 1839.
HOUSE of Lords.—(W.H.D.) No. 2.—Sir CHARLES HALKETT, Bart., Appellant, v.
Nisbet's TRUSTEES, and Mrs HAMILTON NISBET
or Ferguson, Respondents. Passive Titles - Warrandice-Teinds - Augmentation, Relief
of-A party having been sued upon an obligation of warrandice against augmentation of stipend, granted by a remote ancestor in 1682, for payment of the sums advanced on account of successive augmentations of stipend, and for relief from the existing and future augmentations — Circumstances in which, on a deduction of the titles, held (affirming the judgment of the Court of Session) that the party had incurred a passive representation, so as to be liable, under the warrandice, in relief of the present and of all future augmentations of stipend,
John Wedderburn of Gosford, by disposition, dated 7th August 1682, conveyed to Sir John Nisbet of Dirleton, the lands of Innerwick and Thorntoun, with the teinds; and on the narrative that the teinds were disponed for the same price as he got for the stock, Mr Wedderburn bound himself, “ and his heirs, as well male as of line, taillie, conquest, provi. sion, and all others, his heirs and successors whatsomever, conjunctly and severally, renouncing the benefit of the order of discussing them, to warrant the foresaid teinds, parsonage and vicarage, of the lands and baronies thereby disponed, from all future augmentations of ministers' or schoolmasters' stipends, and from all other burdens and impositions, and all evictions of the said teinds, or any part thereof that should thereafter happen, by whatever act or law made or to be made in any time coming, excepting only the particulars after mentioned."
The subjects conveyed by this disposition descended by regular progress to the late William Hamilton Nisbet of Dirleton, and were now feudally vested in the person of his daughter, Mrs Ferguson, the respondent. Prior to the period of Mr Hamilton Nisbet's succession in 1780, and down to 1789, there was no augmentation of stipend imposed on the lands of Innerwick and Thorntoun, but in the course of the subsequent years between 1790 and 1823, these lands were subjected to three successive augmentations, according to which stipend was paid by Mr Nisbet during his life, and, after his death in 1822, by the respondent, Mrs Ferguson, to the minister of Innerwick for the time being. Upon a calculation of the value in money of these payments on account of the augmented stipend, over and above the old stipend, the amount, inclusive of interest, was, at 5th May 1832 (the date of the summons in this action), stated to be £3532. 18s. 1d. In the first of the three processes in which these different augmentations were obtained, the late Sir John Halkett of Pitfirrane, the immediate predecessor of the appellant, Si harles Halkett, was cited to appear for his interest on letters of incident diligence at the instance of Mr Hamilton Nisbet, and he made appearance accordingly. And, in like manner, in the two subsequent processes of augmentation, Sir Charles Halkett, as representing his deceased father Sir John, was cited to appear for his interest, at the instance, respectively, of Mr Hamilton Nisbet and the respondent, Mrs Ferguson. Founding on the clause of warrandice in the disposition by John Wedderburn of Gosford, in 1682, to their ancestor Sir John Nisbet, the present action was brought by Hamilton Nisbet's trustees and Mrs Ferguson, with the concurrence of her husband, against Sir Charles Halkett and various other parties, as representing on the passive titles the granter of that disposition, for payment of the above sum of £3832. 18. 14., and for relief from the existing and future augmentations of stipend. Decree of absolvitor, however, was allowed to pass in favour of all the defenders, with the exception of Sir Charles Halkett, against whom alone the conclusions of the summons were now sought to be made effectual. His representation of John Wedderburn, the granter of the warrandice, was said to appear from the following deduction :
John Wedderburn of Gosford (afterwards Sir John Wedderburn), the maker of the disposition in 1682, was succeeded in 1688 by his younger brother Peter (afterwards Sir Peter Wedderburn), who made up
titles to him by special service, and also as heir of line in general. Sir Peter Wedderburn married Dame Jane Halkett of Pitfirrane, by whom he had a numerous issue. In 1706, these spouses executed mutual settlements of their respective estates of Gosford and Pitfirrane in the form of procuratories of resignation, but which deeds contained none of the qualifications of proper entails, farther than a destination to heirs, and a prohibition against altering gratuitously the order of succession. By the settlement of Pitfirrane, the destination of that estate was to Peter Wedderburn, the eldest son of the marriage of the entailers, and the heirs-male and female of his body; whom failing, to Charles Wedderburn, the second son, and the heirs of his body; whom failing, to the third son, and his heirs, &c. Gosford, again, was destined to Charles Wedderburn, the second son of the marriage, and the heirsmale and female of his body; whom failing, to James Wedderburn, the third son, and the heirs of his body, &c., as in the entail of Pitfirrane. These destinations were devised for the purpose of preserving a separation of the estates in the persons of succeeding heirs, and it was therefore specially provided by both deeds, that in the event of the succession to Pitfirrane opening to Charles Wedderburn, by failure of his elder brother Peter, and the heirs of his body, Charles should, in that case, be entitled to his option and election, either to keep Gosford and renounce Pitfirrane, or to take Pitfirrane and denude himself of Gosford in favour of the next heir. This election was to be exercised by Charles within year and day after the right of succession to Pitfirrane devolved upon him; and if, in virtue thereof, he chose to renounce Gosford and betake himself to Pitfirrane, it was provided, on the one hand, that the debts incurred by him, after the date of such devolution, should not affect Gosford or his successor therein ; and, on the other hand, that the debts contracted by him during his possession of Gosford should become a burden on, and be paid by the heir succeeding him in that estate. There was also a provision in the entail of Pitfirrane, binding the heir in possession to assume the surname, title, and arms of Halkett of Pitfirrane.
Besides settling Gosford on his second son Charles, Sir Peter Wedderburn afterwards, in 1725, executed a general disposition and assignation, whereby, inter alia, he conveyed to him the sum of 62,000 merks (being part of the price of the subjects purchased from Sir John Wedderburn by Sir John Nisbet, and secured by a wadset over his lands of Dirleton), and also the sums of £1000 and £3000 Scots; besides “all goods and gear, debts, and sums of money, heritable and moveable, principal, penaltys, and a'rents qtsoever, wbich pertained, or were addebted to the said Sir Peter Wedderburn, my fayr. or the said John Wedderburn, my broyr, so far as I have any right or pretence thereto."
This disposition was made under the burden of the granter's “heall just and lawful debts whatsoever,” excepting those which his eldest son Peter, in terms of a bond of relief, was bound to pay.
The succession to the estates of Pitfirrane and Gosford respectively took place as follows:
In terms of the destination of Pitfirrane, Peter Wedderburn, the eldest son (afterwards Sir Peter Halkett), succeeded to that estate on his mother's death in 1713,
being infeft therein, conform to charter and sasine expede upon the procuratory. Sir Peter was married to Lady Emilia Stuart, with whom he executed a postnuptial contract of marriage having reference to the succession of Pitfirrane, but by which the destination of the estate was not eventually altered. Of this marriage there were born three sons, viz., Peter, Francis and James. Of these the eldest, Peter, having proved fatuous, his father, in 1751, made a new entail of Pitfirrane passing him by, and carrying the estate to Francis, the second son, who in consequence having succeeded thereto on his father's death in 1755, continued in the possession thereof until his own death, without issue, in 1760, having been predeceased by his younger brother James, who died, also without issue, in 1758, and survived by his elder brother Peter, now Sir Peter, and the only survivor of the family.
In the meantime, the estate of Gosford descended, on the death of Sir Peter Wedderburn in 1746, to Charles Wedderburn, the second son of Sir Peter and Lady Halkett, who thereupon entered into possession. Besides taking up the property conveyed by the general disposition from his father to him in 1725, Charles possessed the estate, but upon a personal title merely, until 1754, when he died, leaving two sons, viz. John, the father of the appellant, Sir Charles Halkett, and Henry, the grandfather of the other parties called as defenders, but who were assoilzied of consent. On Charles's death, John, his eldest son, made up titles by a general service to him as heir-male and of line, taillie and provison, whereby, inter alia, having obtained right to the unexecuted procuratory of 1706, he thereupon expede a charter and sasine, on which he possessed the estate actually until 1771, but beneficially only until 1767, when his interest therein ceased in favour of his brother Henry. During his possession, John Wedderburn sold part of Gosford to Lord Elibank for £3854. 11. 8.
By Francis Halkett's death in 1760, the right to succeed to Pitfirrane devolved upon John Wedderburn, provided the entail of 1751, cutting off Peter Halkett, who was fatuous, was a good deed; and in order, therefore, to try that question, John Wedderburn having procured Peter cognosced, and himself appointed his curator, brought a reduction of the entail of 1751 in his own and Peter's name. In that action the Court pronounced decree of reduction. The effect of this being to postpone John Wedderburn's succession to Pitfirrane, and consequently his brother Henry's right to Gosford, it was arranged between those parties that an appeal should be taken against the judgment in Henry Wedderburn's name ; and an appeal having been entered accordingly, the judgment of the Court of Session was reversed in the House of Lords in 1770. In consequence of this decision, as well as of the death of Peter Halkett, which happened about the same time, John Wedderburn's right to succeed to Pitfirrane was undisputed, to which, accordingly, having made up titles by service as heir of taillie and provision to his cousin Francis Halkett, he took infeftment in the property in November 1770, and thereafter assumed the name and title of Sir John Halkett of Pitfirrane.
The agreement above mentioned, between John and Ilenry Wedderburn, was entered into in 1768, and it
stipulated, that in the event of the appeal being successful, Henry should have right to the rents of Gosford from 1767, he being bound to relieve his brother of the debts attaching to the estate, the amount of which was fixed at £15,500, and which debts were stated to have been “contracted by the predecessors of the said John Wedderburn, and by himself.” In implement of this agreement, Sir John Halkett, in 1771, executed a disposition of the estate of Gosford in favour of Henry Wedderburn, conferring right to the rents from 1767. By this disposition, Sir John also conveyed to Henry the wadset' for 62,000 merks affecting the lands of Dirleton,—his right to which being thus described in the conveyance: “ To which contract of wadset the said deceast Sir Peter Wed. derburn Halkett, my grandfather, had right, as heir served and retoured to the said John Wedderburn of Gosford, his brother, day of
and to which the said deceast Charles Wedderburn, my father, bad right by disposition from the said Sir Peter Wedder burn Halkett, bis father, of date, &c. &c., and to which I have right, as beir in general, served and retoured to my said father before the Bailies of Edinburgh, 28th day of June 1754."
Henry Wedderburn, after having obtained possession of Gosford, died in 1777 ; and his circumstances being embarrassed, the estate was brought to judicial sale at the instance of his daughter, Lady Cumming. In the ranking, Sir John Halkett appeared and claimed as a creditor, and received payment of the above sum of £15,500, with interest, partly from the price of the estate, and partly by a reconveyance of the wadset for 62,500 merks, which was unredeemed, and, after having returned to him, was by him transmitted to other parties. No claim was entered for the authors of the respondents.
Sir John Halkett possessed the estate of Pitfirrane until his death in August 1793.
In the following year, his son, Sir Charles Halkett, the appellant, made up titles by special service as heir of line and taillie, and provision of his father, and was infeft. Sir Charles was, besides, appointed his father's residuary legatee, under a trust-disposition and settlement executed by him in 1792. By this deed, Sir John Halkett also conveyed to his son Charles, the furniture in the house at Pitfirrane, and the stocking and utensils upon the farm in his natural possession, it being however provided, that in the event of there being a deficiency of funds to pay the annuities bequeathed by the will, the truster's heirs of taillie in the estate of Pitfirrane should be bound to make the same effectual. These effects were, along with the entailed estate, taken possession of by Sir Charles Halkett on his father's death, but he expede no confirmation.
An action was accordingly brought by the respondents against the appellant, for relief, as representative on the passive titles of the granter of the disposition in 1682. The Lord Ordinary (Medwyn) ordered cases to himself, and afterwards reported the same to the Second Division of the Court (for the argument there maintained, see Vol. VII. p. 260.)- When the case was put out for advising, the respondents craved the Court to delay, and to be allowed to give in new papers in regard to the effect of certain deeds which had been meantime recovered from the record. Additional cases were accordingly lodged by both the parties; and no objection was taken to the adınissibility of the newly