EDITOR R. CANDLISH HENDERSON, LL.B., ADVOCATE ASSISTED BY J. B. BALLINGALL, A. C. BLACK, J. SMITH CLARK, M. MILLAR CRAIG D. OSWALD DYKES, D. P. FLEMING, W. A. FLEMING R. W. LYALL GRANT, GEORGE HART, R. HENDRY D. S. MACDIARMID, JAMES MACDONALD JOHN S. MACKAY, W. J. ROBERTSON AND ALEXANDER TAYLOR ADVOCATES OF SCOTS APPEALS IN THE HOUSE OF LORDS FROM 1707 SUPREME COURTS OF SCOTLAND 1800 TO 1873 VOLUME II ELECTION ΤΟ JUSTICIARY EDINBURGH WILLIAM GREEN & SONS T. & T. CLARK AGENTS IN GLASGOW WILLIAM HODGE & COMPANY; JOHN SMITH & SONS 1910 LIBRARY THE SCOTS DIGEST 1800 To 1873 ELECTION CHALLENGE OF DEED, 3-17. DEBTOR, CHOICE OF, 1-2. EQUITABLE COMPENSATION, 22-27, 32. IGNORANCE, EFFECT OF, 9, 29, 39-41, 48– 49, 53. INSANITY, 28. INTESTACY, RIGHTS ON, 61-62. JUS RELICTE, TERCE, AND TESTAMENTARY EXCLUSION OF, see title Husband and LEASE, 30. LEGITIM AND TESTAMENTARY PROVISION, 24, 46-60, 63. tion contract, no new liability was incurred by 3. Deed-Approbate and Reprobate.-A 4. Deed Challenging Refusing Effect to Deed-Exercise.-B was A's testamentary EXCLUSION OF,See title Parent and Child. trustee, and merged his estate with his own, LIFERENTER'S ELECTION, 31-32, 57. and attempted to alter in some respects the MARRIAGE-CONTRACT AND OTHER PRO- testamentary directions of A. Under both VISION, 32, 35-38. REPRESENTATIVES, 33-34, 43. TESTAMENTARY PROVISIONS, 64. A's and B's settlements X was a beneficiary. TRUSTEES, TUTORS, AND GUARDIANS, 9, 53. it, either by vindicating the right of himself 1. Choice of Debtor-Principal and Agent Sale. The purchaser of a horse at an auction held not entitled to sue both the auctioneer and the principal, on alleged breach of warranty. An action against both dismissed as against the auctioneer, in respect the pursuer, alleging that the principal had taken the horse back, must be held to have elected to sue the principal. Ferrier v. Dods, 1865, 3 M. 561; 37 J. 270. 2. Choice of Debtor-Composition Contract Executry.-A son agreed with his deceased father's creditors, that, on his father's estate being conveyed to him, he should pay 15s. on his father's debts, and find caution for the remaining 5s. He afterwards was confirmed his father's executor-creditor, the cautioner for the composition becoming also cautioner in the confirmation. In an action by a creditor against the son and the cautioner, the latter admitted liability for an instalment of 5s. on the debt, but the pursuer insisted further against him as cautioner under the confirmation. Held that, as the son was to have right to the father's whole estate under the composi and the other persons interested in the settle- 5. Deed-Challenging — Effect of. — Ques- read so as to raise a question of election. Ker the deathbed deed only. Battley v. Small, v. Wauchope, 1819, 1 Bligh 1. 2 Feb. 1815, F. C. An 7. Deed-Challenging Effect of. heir who has successfully challenged a convey ance of heritage made to his prejudice in a deathbed deed, cannot claim a legacy made to him in that deed. Kers v. D. of Rocburgh's Trs., 1815, Hume 25. 13. Deed Challenging-Accepting Bequest.-A party executed a deed of entail, in which he called as the first substitute the heir entitled to succeed to him under a previous destination. Afterwards he executed a testament, by which he appointed the same 8. Deed-Challenging Effect of.-Ques-residue should be subject to provisions imparty his residuary legatee, declaring that the tion, whether a party claiming benefit under an English title (which was effectual to convey moveables, but inept to transmit heritage in Scotland) could found on the defect in the conveyance of the heritage, and take it as heirat-law, and at the same time claim the benefit of the will quoad the moveables. Campbell v. Munro, 1836, 15 S. 310. 9. Deed Challenging Ignorance Heirs. A father executed a trust deed for payment of debts and regulating his succession, in fraudem of his marriage-contract, and to the prejudice of the heir of the marriage, and afterwards another trust deed. The two formed together a complete settlement of his whole estate. The heir made up a title under the marriage-contract, and under it possessed the lands contained in the first deed, and took benefit under the second deed, but in ignorance of the existence of the first deed. Held that his trustees were not barred from challenging the earlier deed, but were entitled to elect either to abide by his approbation of his father's settlement or to renounce and restore the benefit he had taken and challenge the first deed. E. of Glasgow's Tr. v. E. of Glasgow, 1872, 11 M. 218; 45 J. 145. 10. Deed-Challenging Effect of.—Held that the heir-at-law could not claim heritage on the ground that it had not been effectually disposed of under a deed, and also claim a provision to him made by that deed. Dundas v. Dundas, 1830, 4 W. & S. 460. Affg. 7 S. 241; 4 Fac. 292. 66 11. Deed Challenging-Accepting Liferent Exercise.-A liferent of part of an estate was left by an English testator to his eldest son. The residue of the real estate, not by him otherwise disposed of," was bequeathed to three younger sons. No mention was made of bonds due by an English company, upon which adjudications had been led against their estates in Scotland. Held that the eldest son, by enjoying the liferent for sixteen years, had approbated the will and could not reprobate it so as to claim that the bonds were not carried by the will. Martin v. Martin, 1795, 3 Pat. 421. 12. Deed Challenging Effect of. - A party may object to a deed disposing of property ex capite lecti and at the same time found on the deed as revoking a prior deed. Mudie v. Moir, 1824, 2 Shaw's App. 9. Crawford v. Coutts, 1803, 1806, 2 Bligh 655; 5 Pat. 73. Revg. 3 Feb. 1801, F. C.; M. 14958 and" Deathbed" App. No. 3. [See title Deathbed, No. 15.] And the revocation will be effectual to exclude a plea of want of interest in the heir to reduce under the tailzie executed by the testator. posed upon the legatee in his character as heir Held that the acceptance of the bequest in this testament did not bar the heir from challenging the deed of entail. Urquhart v. Urquhart, 1851, 13 D. 742 ; 23 J. 325. 14. Deed Challenging on Fraud Effect of. The plea of approbate and reprobate has alleged as the ground of reduction. Dow v. no place where fraud or circumvention is Beith, 1856, 18 D. 820; 28 J. 348, 420. 15. Deed Challenging - Invalidity. Where the deed is a testament which, though made by a person having power to settle land, is unavailing in point of form and solemnity to carry land, the rule of approbate and reprobate does not apply. A entailed the lands of X in 1757. In 1763A by will revoked all prior wills and gave directions as to the settlement of his lands other than X, and of the same date he executed a deed disponing X to a series of heirs different from those in the earlier deed. This last deed was invalid. Held that the heirs by taking benefit under the will of 1763 were not barred from pleading the invalidity of the other deed. Wilson v. Henderson, 1802, 4 Pat. 316. 16. Deed-Challenging.-If three deeds of settlements really constitute together one testamentary settlement, a party cannot reduce the last deed ex capite lecti and at the same time claim a provision made in one of the two former deeds. Black v. Watson, 1841, 3 D. 522; 16 Fac. 508. 17. Deed-Challenging.-Spouses executed two mutual deeds-by one of which they settled their moveables, and by the other their heritage-in each referring to the existence of the other, but the property being settled for different purposes, and each being capable of independent execution, held that the surviving spouse, by taking under the one deed, was not barred by approbate and reprobate from reducing the other. Dow v. Beith, 1856, 18 D. 820; 28 J. 348, 420. 18. Deed-Fulfilment of ConditionsPayment of Legacies.-A testator disponed his heritage to trustees for behoof of his widow in liferent, reserving power "to burden his estate with legacies or donations." On the same day, by a separate deed, he bequeathed his moveable estate to his widow, subject to payment of a legacy. On his death she was confirmed executrix. The moveables were insufficient to pay the debts. An argument |