"of yards and office-houses." But this power obviously also in a matter of administration, though also without any restriction in words as to the parts and portions of the estate to be feued, except the mere discretion of the heirs, was held in the middle of the last century as insufficient to warrant either a feu of a barony forming nearly half the estate, or the feu of those acres adjacent to the mansion-house and gardens, though with an increase of rental. And, at the same time, under this power, a feu of nineteen acres, convenient for the extension of the town of Greenock, was sustained, though obviously conferred at a great under value on the daughter and heir-of-line of the granter, otherwise very well endowed. He considered that on the authority of this decision much property may have been arranged: And though he saw the controul, which it sanctioned, could hardly be exercised according to precise and definite rules, he did not think himself at liberty to depart from it, founded, as it appeared to be, on a general and just principle: That with respect to powers of management and administration, the will of the entailer was to be observed; and that a power granted for the comfort and advantage of the familia predilecta, was not to be perverted to its destruction, or for the conversion of a princely estate entailed upon it into a mere annuity. He observed that destruction was not too strong a word; for as the law now stood, the feuar, if the feus, were sustained, might purchase the entailed superiority at 18 or 19 years purchase; and the lands acquired with the price, at 28 or 30 years purchase, might be again feued, and the superiority again sold, till, by the mere operation of conveyancing, nothing was left for the heir of entail. On these grounds, he was against either sustaining or cutting down the feus generally; but being of opinion that Duke William was entitled to make a liberal and ample provision for the defender in the situation in which he stood, by a reasonable exercise of the power of feuing, and that the method followed of making separate feus, enabled the Courts to sustain what was adequate for this purpose, while they reduced what was exorbitant, and in fraudem of the entail; he concluded that the parties should be heard upon this matter, as to which there had as yet been no discussion. A great majority of the Court, however, concurred in pronouncing the following interlocutor: "12th January 1808.-Find that the late Duke "of Roxburgh held the estate of the Dukedom of Roxburgh under the "fetters of a strict entail: Find that the deeds now challenged were not granted in the due exercise of the reserved powers in that entail, of "granting feus, tacks, and rentals, and therefore sustain the reasons of "reduction thereof, and of the sasines thereon; reserving all objections "to the title of the pursuers, and to them their answers as accords. Lord Ordinary, Act. Robt. Craigie, Thomas Thomson et Ad. Gillies. Agents, James Horne, W. S. Hotchkis and Tytler, W. S. and Buchanan, Clerk. No. XXIII. January 14. 1808. ATKINSON, MURE, and BOGLE, AGAINST LEARMONTH and LINDSAY. CONFIRMATION.-1st, Arrestment used in the hands of the nearest in kin, before confirmation, is inept. 2d, In a competition between an arrestment in the hands of the nearest in kin, partially confirmed, and a confirmation as executor creditor, ad omissa, the former attaches no more than the fund specially confirmed, and the latter is the only valid diligence by which the remainder can be attached. A RCHIBALD HAMILTON, residing in St Domingo, was indebted to Atkinson, Mure, and Bogle, to the amount of L.4919 Sterling, and was likewise indebted to Learmonth and Lindsay to the amount of L.1567 Sterling. Hamilton remitted money to John Miller in Glasgow, to the amount of L.5717 Sterling, by whom it was placed in the branch of the Royal Bank of Scotland there. John Miller shortly afterwards died; and George his brother acted as his executor. In the year 1799, Hamilton died abroad, and left a will, wherein he appointed certain executors, of whom several resided abroad, and all ultimately declined to accept or act. To secure this fund the parties proceeded in the following manner : Learmonth and Lindsay, on the 25th July and 12th December 1799, executed an arrestment to found jurisdiction; and having raised an action. of constitution before the Admiralty Court, against the testamentary executors of Hamilton, and against Mrs Mary Hamilton his sister and nearest in kin, arrested the fund in medio on the 27th March and 4th July 1800. At this time Mrs Mary Hamilton had not made up any title by confirmation; and having renounced, she was assoilzied from the action of constitution. Learmonth and Lindsay, however, raised a reduction of this decree, and obtained a decree of reduction, constitution, and payment against her on 25th July 1803. Atkinson, Mure, and Bogle, on the 29th and 30th December 1801, executed an arrestment to found jurisdiction; and having raised a process of constitution against the testamentary executors, and Mrs Mary Hamilton, arrested the fund in medio on the 4th and 5th January 1802, while it lay in the branch of the Bank, Glasgow; and on the 13th and 17th January 1803 after, it was removed to the Bank of Scotland in Edinburgh. On the 9th March 1801, Mrs Mary Hamilton, as nearest in kin to Archibald Hamilton, expede a partial confirmation to the extent of L.100 Sterling. Farther, Atkinson, Mure, and Bogle expede a confirmation quoad omissa, as executor creditor to Hamilton, on the 8th February 1803, on discovering that the confirmation expede by Mrs Hamilton was a a partial one. On the 11th February 1802, George Miller had raised a process of multiplepoinding, in the course of which the above interests were produced. Atkinson, Mure, and Bogle objected to the diligences produced by Learmonth and Lindsay, 1st, That their arrestments being laid prior to the date of Mrs Mary Hamilton's title as executor by confirmation, were inept. 2d, That even if the arrestments had been effectual, yet as Mrs Mary Hamilton had only expede a partial confirmation to the extent of L.100 Sterling, the arrestments could only attach to that amount; and therefore the confirmation as executor creditor quoad omissa, was the regular and preferable diligence. 27th July 1779, Sloan Laurie against Spalding Gordon. The Lord Ordinary pronounced the following interlocutor: "Finds "that the arrestments used by Messrs Learmonth and Lindsay, although "prior in date to those used by Atkinson, Mure, and Bogle, cannot give "them any preference, or be of any avail, in respect the same were used "before the time that Mrs Mary Hamilton had by confirmation vested any proper right to herself in the funds in question; and that therefore "the arrestments used by Atkinson, Mure, and Bogle being used poste"rior to Mrs Mary Hamilton's confirmation, are to be held preferable to "the others: Finds, however, that as Mrs Mary Hamilton did not ex"pede a general confirmation, but only the confirmation of a particular "fund to the extent of L.100; so the arrestments used against her can not give the users of such diligence any right to a greater sum further "than to the amount of the L.100 specially confirmed: Finds that "with regard to the remainder of the funds not confirmed by her, "they remained in bonis of Archibald Hamilton the defunct, till-taken up in a habile manner; and finds that this was done accordingly, by the confirmation of Atkinson, Mure, and Bogle, as executors cre"ditors ad omissa, whereby they vested in themselves a right to the said "funds, and in consideration of which they have by that diligence a preferable right to the other competing creditors, who neglected to use "that diligence in proper time.' The Lord Ordinary afterwards reported the case to the Court on memorials, and the Lords adhered, (14th January 1808.) In deciding the question between these parties, it was unnecessary for the Court to do more than to adhere to that part of the Lord Ordinary's interlocutor, which finds, " That the arrestments used by Learmonth and Lindsay, although prior in date to those used by Messrs Atkinson, "Mure, and Bogle, cannot give them any preference, or be of any avail, "in respect the same were used before the time that Mrs Mary Hamil"ton had by confirmation vested any proper right to herself in the funds " in question; and that therefore the arrestments of Atkinson, Mure, and "Bogle, being posterior to Mrs Mary Hamilton's confirmation, are to be "held preferable to the others;" because the arrestments of Learmonth and Lindsay being in this respect inept and null, there was no longer any party having an interest to agitate the second and important point of law laid down in the last finding of the Lord Ordinary's interlocutor. But But it is proper to notice historically, that the Court were no less clear with respect to that part of the interlocutor. They considered that, in a competition, confirmation as executor creditor ad omissa was the only proper and regular diligence to attach the fund in medio, where the nearest in kin had only expede a partial confirmation; and that this question had been well and solemnly decided in the case, 27th July 1779, Sloane Laurie against Spalding Gordon, quoted in support of the pursuer's argument. Lord Ordinary, Cullen. Act. J. W. Murray. Alt. W. Boswell. Tod & Romanes, Alex. Boswell, and Robinson & Ainslie, Agents. No. XXIV. M. Clerk. J. W. January 19. 1808. ROBERT CRAIGIE AND JAMES HORNE, Trustees of Sir JAMES NORCLIFFE INNES KER, AGAINST SIR JAMES NORCLIFFE INNES KER, and against GENERAL WALTER KER, and JOHN BELLENDEN KER. APPEAL.-ADJUDICATION.-TAILZIE.-An alledged heir may, for the purpose of making up a title, grant a bond to trustees, and, on that bond, they may charge him to enter, adjudge the estate, and convey the adjudication to him,-1. Though the same alledged beir has already attempted to serve, and his service has been suspended by the effect of an appeal to the House of Lords,-2. Though the right of the truster to the estate be disputed in toto, and be under trial in the House of Lords,-3. Though he be heir of a strict entail. TH HE report of the case Sir James Norcliffe, &c. 23d June 1807, No. cclxxxvi of the last volume of this Collection, must be read as the narrative of this case. Sir James Norcliffe Innes having obtained the last interlocutor mentioned in that report, which is there dated the 7th July 1807, on the day following attempted to complete his service. But Bellenden Ker appeared in it, and objected, that he had already intimated a petition of appeal to the House of Lords, against the interlocutor 13th January 1807, and the interlocutor 23d June 1807, adhering to it: that therefore the service being suspended by the interlocutor of the macers, 17th February 1806, till a direction on the point of law should be be obtained from the Court of Session, avizandum being made to the Court, with the case, for this purpose; the case then being carried from the Court of Session to the House of Lords by appeal against the interlocutor pronounced on that report, and that appeal being in dependence, so that no direction could be obtained, it was impossible for the service to proceed. The question arising on this objection was reported by one of the Lords, assessors to the Court, which on that report pronounced this interlocutor, 10th July 1807,-"In respect of the said appeal, remit to "the macers, with this instruction, that they suspend, in hoc statu, fur"ther proceedings in the said service." Soon after it was pronounced, General Ker intimated to Sir James Norcliffe Innes a petition of appeal to the House of Lords, at his instance, against the interlocutor 7th July 1807. Sir James, aware that it might be out of his power to make up a title to the estate by service, without much delay, had already determined to do it in another way, to wit, by adjudication on a trust bond. For this purpose he granted, 14th March 1807, to Robert Craigie and James Horne, a bond for L.1,500,000 Sterling. Upon this bond they charged him to enter heir in general and in special to the late Duke of Roxburgh and his predecessor Duke John, in the estate of Roxburgh; and on the expiration of the days of charge, they raised a summons against him for adjudication of this estate in payment of the above sum. The Lord Ordinary ordered intimation of the process to be made in the MinuteBook, and on the walls, in ordinary form *. General Ker and Bellenden Ker then came forward as defenders in the process of adjudication, by representations against this interlocutor. After some procedure, the Lord Ordinary reported the case, on minutes and answers. The Court appointed a hearing in presence. On hearing counsel, the interlocutor of the Court was,-15th Dec. 1807, " Remit to "the Lord Ordinary to repel the objections, to call the case without an "hour, and to decern in the adjudication." The Lord Ordinary accordingly called the cause the same day, and his interlocutor was,-" Repels "the objections, refuses the representations for Brigadier-General Ker "and his attorney, and for John Bellenden Ker; and adjudges, decerns, and declares in terms of the libel." Against this interlocutor General Ker reclaimed, and his petition was answered. Argument for General Ker. I. The present action, according to the account given of it by the pursuers, is intended to make up titles to the estate of Roxburgh, in the person of Sir James Norcliffe Innes. But the very same thing was the object of the service; and the interlocutor, 7th July 1807, found that Sir James was entitled to succeed in it. This interlocutor is now under appeal; and, accordingly, it seems clear U The Court afterwards expressed an opinion, that this form was superfluous in this case. |