creditor undertakes this as a part of the contract between them? Can it be supposed that the parties in such a contract understand that the creditor reserves a right to evacuate at his pleasure the cautioner's relief by a posterior loan to the same debtor? We really can have no doubt, that every cautioner who enters into such a bond, fully and perfectly understands that the creditor is bound to grant him an assignation for relief, if necessary, without any such exception; and that every creditor in such a bond perfectly understands such to be the understanding of the cautioner. We cannot think that the right of relief under such a contract can be defeated by a posterior loan, more than by a voluntary purchase of the subject by the creditor, or by the purchase by the creditor of a posterior debt due to a third party, or by a renunciation or voidance of the first real security, or, in short, by any act, either of commission or omission, such as occurred in the two last-decided cases to which we have referred." Lord Cuninghame returned the following opinion: "I concur entirely in the opinion of Lord Mackenzie, and am unable to add any thing to his Lordship's exposition of the general principles of law upon which, as I conceive, the decision of the present and similar questions depend. But in reference to the specially pointed out in the Lord Ordinary's note, which at first appeared to me of great weight, it may be proper to state, that I do not think that it ought to affect the cautioner's plea. "The special plea urged by the creditor here, is founded on the fact, that the respondent Mrs Menzies was bound originally not only as cautioner for the debt,-but also to keep the premises insured against fire for the full sum of £4000, whereas she, as is alleged, without authority from the creditor, dropped £1000 of the insurance, in consequence of which the creditor, on the occasion of the fire which destroyed a large part of the premises, recovered only £3000 instead of £4000 from the insurance office. Now, had the second loan been given by Mr Sligo prior to the fire, and before Mr Sligo knew that the insurance was dropped, I should have thought his plea peculiarly cogent, that the cautioner was barred by a personal exception from demanding an assignation to the balance of the first security, seeing that that balance was not otherwise realised, solely by her own fault in not insuring for the full amount, in terms of her original obligation. But matters were entirely changed after the fire. It was not till after that event that Mr Sligo gave the proprietor the second loan of £2000, when he knew well that the first insurance was dropped, and no longer insisted on the cautioner keeping the premises insured to any extent, being apparently aware that the solum of the premises alone, which could not be destroyed by fire, was well worth the small balance of £1000, which was all that remained outstanding on the first security. The very fact that the premises subsequent to the repair, were considered by those interested as sufficient to secure not only the second loan of £2000, but a third loan of £2500, affords an irresistible inference, that both parties were then satisfied that the pursuer's agreement for insuring a certain sum for the security of the primary mortgage, might then be safely abandoned. "At all events, when Mr Sligo, after drawing the payment which he did from the first policy of insurance, neither stipulated that a new policy should be opened, nor made any complaint that the cautioner had failed in doing what was incumbent on her as to insurance, he seems barred from now bringing forward for the first time, any plea on this ground against the cautioner, when distressed by an unexpected demand preferred against her under the first bond." At advising, Lord Justice-Clerk. I do not see any ground for altering the opinion I formerly expressed, which is that of the majority of the consulted Judges. Too much has been said about catho lic and secondary creditors, which is different from what we have here. The creditor is not entitled to do any thing productive of injury to the cautioner. Lord Meadowbank concurred. Lord Medwyn.-I was considerably puzzled with this case. On the one hand, there was the authority of Erskine; and on the other, the equity in favour of the cautioner. It is a pure case, free of any specialties affecting the question which is raised in consequence of the fall of the property in value. The question is, whether a cautioner, who has contracted without stipulating for heritable security, can object to the collateral security being postponed, on the ground that he is entitled to an assignation of it. There is no case in which this has been discussed. The case that comes nearest it is Pitcairn, in 1710. I think it clear that Erskine holds it to be a general rule, that no creditor can be compelled to assign to the prejudice of his own rights. But there has been a remarkable progress in our law in favour of cautioners. The law of Rome never gave to cautioners the facilities of our laws. The progress in our law is well illustrated by the cases—(His Lordship here referred to the following cases: Watt, 1665; Hume, 1666; Wood, 12th December 1695; Erskine, 14th January 1780.) This last case is an express authority for holding that, in maturing our law, the opinion of our institutional writers does not, any more than decisions, stand in the way. Is, then, the relation between creditor and cautioner the same as that between catholic and secondary creditor? I think not. There is no privity between the latter; whereas in the former there is a direct contract. And, though there was nothing expressed about communication of security, if the cautioner had asked this of the creditor, it would not have been refused. I cannot conceive that the cautioner would not be liberated by the serious step of taking another security, if it were to affect the security for the debt for which the cautioner is bound. Lord Moncreiff.-I have twice already delivered my opinion; and I adhere to it, with all respect to the majority of the Court. I think the doctrine is laid down by Erskine, our leading authority, most explicitly. And it is not less an authority, if taken from the refined system of the Roman law. I have seen nothing in Mr Erskine's work, or any where else, different from the doctrine he lays down. The Court "Recal the interlocutor complained of; and find that the respondent, John Sligo, is bound to rank his bond of 1829 secundo loco, after his previous bond of 1828, and is not entitled to postpone the said bond of 1829 to the subsequent bond of 1833; or otherwise, that the reclaimers are entitled, on payment, to an assignation of the said bond of 1829, to the effect of their ranking the same in its due and proper order secundo loco, after the said bond of 1828; and remit to the Lord Ordinary in the ranking, to proceed accordingly; but find no expenses due." Authorities for Mrs Menzies.-Ersk. III. 3, 66. Bell's Com., I. 359. Kaimes' Equity, B. I. part 1, sect. 1. Hamilton, 4th July 1628; 1 Brown's Sup., 158. Sinclair, 3d December 1662; 2 Brown's Sup., 297. Leslie v. Gray, 10th January 1665; M. 2111. Nicholson, 23d July 1708; M. 3357. Fleming v. Thomson, 23d May 1826; 2 W. S., 277. Storie v. Cairnie, 3d June 1830; ante, Vol. II. p. 434. Hume v. Youngson, 12th January 1830; ante, Vol. II. p. 135. Boyes v. Ogilvie, 10th January 1738. Elchies vo. Cautioner, No. 7. Scott v. Campbell, 14th February 1834; ante, Vol. VI. p. 265. Eadil and Laird, 29th June 1793; M. 3403. Authorities for Mr Sligo.-Kaimes' Equity, B. I. part 1, c. 3, sec. 1. Ersk. II. 12, 66; III. 5, 11. Chiesly, 19th July 1672; M. 3365. Bruce, 11th February 1676; M. 3365. Milne, 6th November 1678; M. 3367. Scotland, 3d January 1696; M. 3367. Pitcairn, 21st December 1710; M. 3371. Preston, 22d February 1715; M. 3376. Lord Ordinary, Moncreiff.-For Mr Sligo, Pyper; Davidsons and Syme, W.S., Agents.-For Mrs Menzies, Penney; Andrew Howden, W.S., Agent.-T. Clerk.-[J.D.] INDEX. CASES DECIDED IN THE COURT OF SESSION, &c. A ACCOMMODATION-BILL-See Bankrupt. ACCOUNTS, DOQUETED-See Process. ACCRETION-Alluvion-River-Feu-Right- Property- ACT OF ASSEMBLY, 1834-See Church. ACTS OF SEDERUNT, 14th December 1756-See Land- ACTION QUANTI MINORIS-See Landlord and Tenant. IN IMPLEMENT-See Bona Fides. COUNTER, IF NECESSARY—See Proof. AGENT-See Expenses. but that the lender was entitled to be restored against the AGENT AND CLIENT-See Caution. Husband and Wife. ALIMENT-Cessio-A superannuated Custom-house officer, Factor Loco Tutoris-Minor-Circumstances in See Parent and Child. ALIMENTARY FUND—See Husband and Wife. ALYTH, Augmentation to the Minister of, p. 218. Provision-A testator having executed different deeds, forming a general settlement of his estate and effects, heritable and moveable, mortis causa, in which, inter alia, he directed the free yearly proceeds of certain unentailed lands belonging to him to be paid over to his two daughters equally, indicating his intention that they should not claim legitim-Held that one of them having claimed legitim, as she had not expressly discharged it, and having succeeded in her claim, was not entitled to the moiety of the yearly proceeds of the unentailed lands, p. 400. ARBITRATION-Decree-Arbitral-Submission-Reference -Suspension-Charge for payment on a decree-arbitral suspended, on the ground that it had been pronounced parte inaudita, p. 445. Decree-Arbitral. - Reduction. LesionCorruption--A railway company, and a party whose lands were intersected by the railway, entered into a submission, whereby they empowered an arbiter to fix the sum the party should receive as compensation by reason of the execution of the Act. The arbiter was empowered, without leading evidence, unless he should see fit, to pronounce an interim award to account of the claims,-it being provided that the balance of the claims should lie over till the completion of the railway. The arbiter visited the ground, accompanied by the parties; and after considering in writing the particulars for which damage was claimed, and heard the agents of the parties viva voce thereon, and afterwards considered in writing the answers of the company, he gave an interim award of £1750 for little more than three imperial acres-Circumstances in which the Court refused, hoc statu, to set aside the award as being extravagant; but "in respect the sum awarded in the interim decree had been paid, but might be found ultimately to exceed the sum to be awarded in the final decree, superseded farther consideration of the case till the arbiter should have investigated the facts, and be prepared finally to fix the amount of damages," p. 307. See Friendly Society. ARRESTMENT See Process. RECAL OF See Diligence. ASSESSMENT-See Society. ASSIGNATION-Intimation-Reputed Ownership-Trust, Latent-Bank Stock-A person was ostensibly the proprietor of a number of shares of bank stock, and in that character signed, by mandate, the contract of copartnery, and received a certificate of his being proprietor. The calls were not, however, paid up by him, but by another party, for whom he acknowledged that he held the shares; but this acknowledgment was not intimated to the bank-1. Held by the Lord Ordinary, and acquiesced in, that in virtue of a provision in the contract of copartnery, the bank were entitled to dispose of the shares in satisfaction of debts due to them by the ostensible owner. 2. Held that an assignation of the shares in security of a debt previously contracted, granted by the ostensible proprietor, and intimated to the bank before any intimation of the latent trust, was preferable to the latent trust, p. 622. See Title to Sue. ASSIGNEE--See Bona Fides. ASSOCIATION-See Society. AUTHORITIES, NOTE OF-See Process. BANK-See Caution. B BANK STOCK-See Assignation. Corporation. BANKRUPT ACT, § 78-2 and 3 Vict. c. 41-TrusteeForeign Interdict. Process A few days prior to the first deliverance on a sequestration, a creditor of the bankrupt attached certain funds in London belonging to the bankrupt, by process in the Lord Mayor's Court; and having taken measures, after the confirmation of the trustee, to follow out the process, the trustee, claiming right, in terms of the 78th section of the Bankrupt Act, to these funds, as vested in him by the sequestration, presented an application to the Court to interdict the creditor, who was a resident domiciled Scotsman, from proceeding with his diligence in England. Answered, that the Court had no jurisdiction over the funds, and could not interdict the creditor from insisting in a process duly taken in a competent court; that this was lis alibi, and that the Statute did not declare that proceedings in England should be ineffectual-The Court, viewing the 78th section of the-Statute as completely vesting in the trustee an unqualified right to funds and effects wherever situated, but subject to all claims of preference, interdicted as craved, p. 631. BANKRUPT-Advertisement-Stat. 2 and 3 Vict. c. 41— Question, whether the enactment in section 75 of the Bankrupt Statute, requiring that advertisements of meetings of creditors be inserted at least fourteen days previous to the meetings, is imperative, and must be strictly complied with; or, whether it is in the power of the Court to correct an inadvertent omission duly to insert the advertisements? p. 668. Liberation A party during incarceration for non-payment of a bill, applied for sequestration, and subsequently for liberation, but the Court, in the special circumstances of the case, which inferred a misapplication of funds, refused the application, p. 664. Liberation-2 and 3 Vict. c. 41, § 15-Liberation refused to a party seeking that remedy under the 15th section of the recent Statute, where he was unable to make out a prima facie case for the benefit, p. 212. Personal Protection-Protection granted to a party who disputed his falling under the description in the Sequestration Act, until he should be examined as a haver, with a view to show that he did fall under the Act, p. 664. Process Sequestration Statute 2 and 3 Vict. c. 41-It is competent, under 2 and 3 Vict. c. 41, § 4, to award sequestration of the estate of a party who died before the passing of the Act-Circumstances in which held not shown to be inexpedient to award sequestration, p. 523. Process - Sequestration Statute 2 and 3 Vict. c. 41-International Law-Chancery-Held, 1. That it is not only competent to, but imperative on, the Court to award sequestration of a deceased debtor's estate, answering the description in the Statute, though he died before the passing of the Statute, and though sequestration be in the circumstances inexpedient: 2. That the appointment of a judicial factor on the estate, who subsequently obtained from the Court of Chancery power to uplift funds abroad, is no bar to sequestration, p. 524. -Process Statute 2 and 3 Vict. c. 41-Oath of Verity-Minor-Held that, under the Bankrupt Statute, the oath of verity of a minor, not legally incapable of taking an oath, is sufficient to entitle him to petition for sequestration, to vote, or to draw a dividend, p. 523. Ranking-Composition-Deposit-Bill of Exchange-Accommodation-Bill-Lien-A party granted accommodation-bills for £800 to a trader, on the security of four promissory-notes, accepted to the trader for £200 each, being indorsed to him; these notes were not discounted; and the creditor, having been obliged to retire the accommodation-bills in consequence of the bankruptcy of the trader, claimed on his sequestrated estate for the full amount of his debt, the affidavit bearing that he held the notes in security, but was not obliged to deduct their value as the bankrupt was the primary debtor. This claim was not objected to, and, the bankrupt having offered a composition, was computed in making up the legal concurrence thereto. Thereafter three of the promissory-notes were paid in full, and a dividend received on the fourth from the bankrupt estate of the granter -Held that each of the four promissory-notes must be regarded as deposited in security of the whole debt of £800, and that the granters, although creditors of the bankrupt, for whose accommodation the notes had been subscribed, were not entitled to rank upon the composition until the principal creditor had drawn therefrom full payment of the balance of his debt of £800, p. 393. Sequestration Trustee Commissioner Three persons having been elected trustees in succession by a majority of votes at a meeting of creditors-Held that the Sheriff had warrantably exercised a sound discretion in selecting the last nominee, the other two being connected, by themselves, or through near relations, with a creditor whose interest was adverse to the general body of creditors, although that connection, in the case of one of them at least, did not amount to a legal objection to eligibility as trustee. The manager and partner of a bank, which has acquired preferences which it would be the duty of a trustee to try to reduce, is ineligible as trustee or commissioner, p. 566. BANKRUPT-Statute-Trustee, Competition for OathWhere an objection was taken, in a competition for the office of trustee, to an affidavit emitted by a creditor of a sequestrated bankrupt, on the ground that the debt was not due till after the sequestration, and that in these circumstances deduction should have been made in the oath for the amount of interest, from the date of sequestration till the day of payment, the Court repelled the same, in respect that, in the circumstances, the oath proceeded not on a bill said to be current at the date of sequestration, and with regard to which the objection was taken, but on an account referred to in the oath, which was past due, p. 669. Statute 1696, c. 5-Prior Creditor-Circumstances held to amount to a device by a bankrupt for giving a preference to one of his creditors within sixty days of his bankruptcy, p. 324. Statute 2 and 3 Vict. c. 41, § 5-Clause— Construction-Held that a noble Marquis, who was in possession of a considerable entailed estate, and property which he had acquired, and who held fifty shares of a banking company, and ten shares of a fire and life assurance company in Scotland, was liable to sequestration, in terms of the 5th section of the 2d and 3d Vict. c. 41; and opinion, that the first portion of the 5th section of the Statute, rendering bankers, underwriters, &c., liable to sequestration, was not to be limited in its operation by the portion of the clause immediately following, commencing with the words, " and generally, the estates of any debtor, subject as aforesaid, who seeks, or has sought his living, or a material part thereof," &c., p. 159. Statute 2 and 3 Vict. c. 41-Sequestration, Expenses of Heritable Creditor-Cessio Bonorum-Held that, under the clauses of the recent Bankrupt Act, the creditors named in a disposition omnium bonorum, executed by the bankrupt in a process of cessio sued by him eight years previous to his sequestration, and conveying his interest in certain heritable subjects to the trustee, who was infeft,were not entitled to claim an exemption for these funds from liability for the expenses of the sequestration, as if they were heritable creditors, p. 318. Afterwards held, that the rents of the heritable subjects specially conveyed by the cessio, were not liable for the expenses of the sequestration, on the ground, that as infeftment and possession for the creditors in the cessio had followed on the disposition, and as this was under a judicial proceeding, a sequestration brought by subsequent creditors, could not impair the preference of the cessio creditors in regard to the heritable subjects and the rents, p. 419. See Burgh. Cautioner. Expenses. Process. BASTARD-Legitimation per Subsequens Matrimonium— Husband and Wife Mid-Inpediment- Marriage-Subsequent to the birth of a bastard child, the mother contracted a lawful marriage with a party who was not the father. On the dissolution of the marriage, of which issue was procreated, she intermarried with the father of the bastard, both parties having been at the time of its conception, and of the subsequent nuptials, under no legal disqualification from marrying -Held by a majority of the Judges, that the intervening marriage formed no bar to the legitimation of the bastard per subsequens matrimonium of the parents, p. 403. See Parent and Child. BERVIE, Augmentation to the Minister of, p. 183. BILL OF EXCEPTIONS-See Expenses, Heritable. Proof. BILL OF EXCHANGE-Accounting-Bill of exchange held not to have been accepted for the drawer's accommodation, p. 242. BILL OF EXCHANGE-Indorsation-Value-A bill accepted, as the accepter alleged, for the accommodation of the drawer, having been discounted by him at a bank, and when past due, having been retired, as it appeared from the bank books, with the proceeds of other bills then discounted by him -Held that the bank agent was not entitled, by virtue of an acknowledgment indorsed upon the bill by the drawer, that the bill had been retired, not with his funds, but with those of the bank agent, to hold the bill with the privileges of a bona fide onerous indorsee, or to maintain action upon it against the accepter otherwise than in the right of the drawer, and subject to all objections competent to the accepter against the drawer, p. 547. 66 Negociation-Liability-A party who owed a balance on a cash-credit to a bank, transmitted to them in a letter a bill of exchange which he had drawn on a debtor in " 'India," which he requested them to "be so good as forward for payment." In answer the bank stated, we will forward" it "for payment, and at maturity place to your credit." The bank had no correspondent in India, but they transmitted it to their usual banker in London, who forwarded it to a house in India for recovery, with instructions to remit the proceeds. The house in India, which was at that time admitted to be in good credit, received the amount, but became bankrupt five months thereafter, and no sum was ever recovered by the bank to whom the bill had been given in the first instance-Circumstances in which opinion, that the bill was merely given to the bank for negociation, not in payment of any balance due to them; and held in an accounting, that they were not liable for the loss through the bankruptcy of the India house, p. 489. Payment Presumption - Facts and circumstances which were not held sufficient to infer payment of a bill not prescribed, and found in the repositories of the creditor at his decease, uncancelled, though no demand of payment had been made of it from the debtor for several years, p. 417. Prescription-The accepter of a bill, which had been discounted at a bank, having failed to retire it, the drawer advanced the funds, and retired the bill. After the years of prescription the representatives of the drawer, whom they alleged to have been the accepter's agent, raised an action for payment, not libelling on the bill, but concluding as for a cash advance made in his character of agent--Plea of prescription sustained, p. 664. Suspension Personal Exception -Circumstances in which note of suspension of a charge of payment on a bill of exchange refused, p. 177. See Bankrupt. Prescription, Ne gative. Tender. BILL, TAVERN-See Proof. BONA FIDE CONSUMPTION-See Obligation. BONA FIDE PERCEPTION-Testament-Trust-Reduction-Deathbed-A party having died on 1st November 1833, leaving a settlement mortis causa, executed on deathbed; and intimation having been made by the heir-at-law prior to Whitsunday 1834, that he meant to challenge the settlementHeld, in the circumstances, that he was entitled to the rents of the subject from that date, p. 246. BONA FIDE POSSESSION-Fructus Bona Fide Percepti -Mala Fides-Reduction-Circumstances in which, where a deed under which a party had entered to possession of an heritable subject, and realised the fruits, was reduced by the heir-at-law, the Court held that the possessor was not bound to account for them, except from the first legal term after the date of citation to the reduction, p. 382. BONA FIDES-Assignee-Adjudication in Implement-Circumstances in which, where the validity or a transfer of two shares of "the Kilmarnock Building Company" by a bankrupt to his brother, was under discussion in a submission between the latter and the trustee for the bankrupt's creditors, which terminated in a decree-arbitral in favour of the trustee, his rights were held not prejudiced by a second transfer by the brother to a third party, notwithstanding the alleged onerosity of the acquisition by the assignee, and his alleged BULK-See Sale. BURDEN, REAL-See Heritable and Moveable. See Church. BURGH OF BARONY-Town-Clerk-Election-Statute 3 MANAGERS FOR-See Nobile Officium. C Guarantee, Mercantile-Firm, Company-Con- Guarantee-Retention-Agent and Client-A See Inhibition, Recal of. Process. Suspension. self was not discharged. Several years thereafter he entered Process. JUDICIAL, WITHDRAWAL OF See - CESSIO BONORUM-Concealment of Funds A party -See Aliment. Bankrupt. Process. Jurisdiction-Interdict-A majority of a presby- Jurisdiction Interdict-The General Assembly |