of having the action dismissed with costs, in respect of the pursuer having ceased to insist in it. A proof was allowed, and ultimately the sheriff found neither party entitled to expenses. The pursuer claimed his expenses, and advocated the cause: Objected to the competency of the advocation. The whole question is one of expenses; and it has been decided, that in estimating the value of a cause with a view to advocation, expenses are not to be included. Murray v. Mitchell, 10th March 1855; Hopkirk v. Wilson, 21st December

1855.

Replied, The conclusions of the summons afford the proper criterion of the value of a cause in a question as to the competency of advocation. Objection repelled; a process of interdict, being in its own nature, capable of being advocated, and its money value not to be estimated by the money value in the conclusion of the summons, nor by the expenses decided for.

GRAHAM BARNS and OTHERS v. HILL and OTHERS.-March 5.

Liability of Trustees-Negative Prescription.

The late Mr Barns died in 1791. He had executed an entail of his lands in favour of a certain series of heirs, and conveyed his remaining means to trustees to be invested in land, and entailed by them on the same series of heirs. The funds realized L.7800. In 1812, the trustees purchased the estate of Hobsland for L. 12,000; and, in order to make up the purchase money, they borrowed L.2000 under a personal bond granted by themselves, and laid L.2200 as a real burden on the land. The then heir of entail approved of the purchase, and drew the free annual produce of the estate till his death, in 1850. The present pursuer then succeeded to the estate; but the lands being much depreciated in value, he repudiated the purchase, and brought an action of count, reckoning, and payment against the trustees, calling on them to invest the L.7800 in the purchase of lands to be entailed, and to take the purchase of Hobsland on themselves. He pleaded, that the trustees had no right to purchase land for a price beyond the amount of the trust funds; and that, when they had done so, they ought at once to have sold a portion to pay off the debt. The trustees explained, that no suitable property could be found for a smaller price, and that the depreciation in the value of land which followed the peace of 1815 prevented a re-sale. They pleaded the negative prescription. Replied, the negative prescription cannot be pleaded in an action of accounting. Held, that the circumstance, that the present action arose out of trust matters, did not bring it within the exceptions to which the negative prescription did not apply. Therefore the plea in defence sustain as a bar to a challenge of the purchase of Hobsland, in 1812, but without prejudice to all questions of accounting between the beneficiaries and the trustees.

R. N.-JAMES DENNY.-March 6.

Process-Remit from First to Second Division.

In the single bills, at moving a reclaiming note, an application was made by all the parties to the cause to have the case remitted to the Second Division, in order that it might be more speedily disposed of than the pressure of business in the First Division would allow. The Court felt themselves compelled to refuse the application, being of opinion that they had no power to grant it. Once introduce the element of consent, and a case might at once be carried per saltum from the Sheriff Court to this Court, or vice versa, at the pleasure or caprice of parties.

Petition, MACFARLANE.-March 6.

Judicial Factor-Bankruptcy Statute, 19 and 20 Vict., cap. 79.

The parties interested in the succession of a person deceased, entered into an agreement by which they regulated their respective interests. No title had been made up to the heritage or moveables of the deceased, but there had been certain acts of management. Application was now made for the appointment of a judi

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cial factor, under section 164 of the recent Bankruptcy Act, 19 and 20 Vict., cap. 79. Petition granted; but the appointment made not on the nomination of parties,—a principle which the Court intimated would regulate all similar appoint

ments.

MESSER v. SIMSON'S TRUSTEES.-March 7.
Process-Amendment of Libel.

This case was before the Court for the adjustment of issues, and was a conjoined process of declarator of right to a piece of moss land. The pursuer described the moss as " part and portion of, and comprehended within the bounds and marches of the lands and estate of Nether Blainslie, the property of the pursuer;" whereas it was not so comprehended: but the error was avoided in the issue. The pursuer now moved for leave to delete," and comprehended within the bounds and marches of," from the conclusion of the summons. Held, that it was incompetent to do so, and that the blunder was fatal.

Petition, HAMILTON.—March 10.

Entail-Mode of estimating Burdens on Estate.

In estimating the burdens on an entailed estate, they are to be taken as at the date of the petition; and it is not competent to take into consideration the amount of the improvement expenditure which the Court are prayed to sanction as a charge on the estate, with a view to deducting the interest thereon from the gross rental.

ROBERTSON V. MENZIES, March 10.

Landlord and Tenant-Joint Tenancy.

The curator bonis of the late Duke of Athol, in 1843, let a farm to Malcolm and Robertson, and the survivor of them, and the heirs of the survivor; it being declared that the lease should terminate at the Duke's death, unless his heir allowed it to run to a natural termination,-which event happened. The tenants entered into possession, and for their own convenience, they divided the farm, and each paid a half of the rent. In April 1851, Malcolm assigned his right and interest in the tack to Menzies, who was his nephew, but not his heir-at-law. The assignation was intimated to the landlord. In August 1851 Malcolm died, leaving a trust-settlement, by which he directed his trustees to make over to Menzies his whole crop and effects on the farm at the time of his death. Menzies entered in April 1851 into possession of that part of the farm occupied by Malcolm. He reaped the half of the crops, and paid half the public and parochial burdens. He also paid half the rents, and his name was entered in the landlord's rentalbook as joint tenant. In July 1853 the pursuer requested him to remove, and on his declinature, raised this action of declarator and removing against him. He pleaded, that the assignation in favour of the defender, being founded on Malcolm's right, expired with Malcolm's death. Replied, the destination in the lease, being gratuitous, could be altered at pleasure; therefore the assignation was unexceptionable. Farther, the pursuer was barred, by acquiescence and homologation, from challenging it. Defence repelled, on the ground that there was not enough to overturn the pursuer's right under the original lease.

SMITH and DAVIDSON V. WILSON.-March 11.

Exclusive Privilege-Letters Patent not Invalidated by Contemporaneous

Invention.

Smith and Davidson, in November 1853, obtained letters patent for an invention for ruling ornamental figures. They thereafter filed a specification, describing the nature of the invention. Wilson also invented similar improvements prior to November 1853, the date of the provisional protection; but he did not use the invention for the purposes of his trade till after that date, though the machine invented by him was capable of being so used. But having afterwards used it, the pursuers brought this action for alleged infringement of their patent.

Held, That there was not such prior use as to invalidate the pursuer's patent; also, that it being not the discovery in which the public are interested, but the disclosure, the inventor who had disclosed his invention and made his bargain with the public, by giving them the benefit of it and obtaining a monopoly of the profit, was entitled to be protected. Therefore, although there had been here a bona fide race of invention, judgment given for the pursuers, with

expenses.

SECOND DIVISION.

ANSTRUTHER v. CULLEN and MITCHELL.-March 6.

Process-Declarator-Reduction-Competency.

Macfarlane and Anstruther, as joint owners of a ship, were found liable in an account for repairs to Dobie and Company. Anstruther alleged that he was unable to pay his share of the debt. Dobie and Company raised an action against Macfarlane and Mrs Mitchell his sister concluding for reduction of a deposit receipt granted to her by a bank, for declarator that the money contained in said receipt was truly the property of Macfarlane, and that it should be paid to them as Macfarlane's creditors. Issues were adjusted and appointed to be tried by jury. Cullen, Mrs Mitchell's agent, under the advice of counsel, paid the debt due by Macfarlane, then deceased, and took an assignation of Dobie and Company's decree in his own favour, in order that he might obtain relief from Anstruther of the portion of the debt due by him effeiring to his share in the vessel. Anstruther was charged, and the charge was suspended on consignation. See Dobie and Mandatory v. Mitchell, Nov. 22, 1854, xvii. D., pp. 97-302-750; Mitchell v. The Royal Bank, Dec. 19, 1854, xvii. D., pp. 228-657. The present action was raised by Anstruther, as Macfarlane's executor and tutor to Macfarlane's only child, against Cullen and Mrs Mitchell, alleging that the money paid by Cullen, and contained in the assignation, was not paid out of his own funds, but was advanced through him by Mrs Mitchell from funds in her hands belonging to Macfarlane, the assignee's name having been only used in pursuance of a scheme to withdraw Macfarlane's funds from the pursuer as his representative; and concluding for declarator that the money so advanced by Cullen was paid out of Macfarlane's funds, as above stated; that neither Mrs Mitchell nor Cullen, as the pretended assignee, had right to uplift the said sums of money from Anstruther as an individual or as Macfarlane's executor, but that the same belonged to him in the latter character; and that they should be decerned to assign and transfer the extract decree at Dobie and Company's instance to him as Macfarlane's executor. The defenders pleaded-1st. That as the summons contained no reductive conclusions or declarator of trust, the conclusion to have it found that the pursuer had right to the debt, and the defenders were bound to make it over to him, were incompetent; and 2d. That the averments were not relevant to support the conclusions of the action. The Lord Ordinary (Mackenzie) found the conclusions competent, and the averments relevant to support them. To this judgment the Court adhered (the Lord JusticeClerk dissenting, and Lord Wood absent), and adjusted issues for trial by jury.

Authorities.-Gillies v. MacLachlan's representatives, Feb. 11, 1846, viii. '., p. 487; Leckie v. Leckie, Nov 21, 1854, xvii. D., p. 77 ; Stair's Inst. iv. 4, § 1.

D.,

GALE BENNET.-March 7.

Process-Mandatory-Reparation--Husband and Wife.

An action was raised, in the name of a married woman, and her husband, as her administrator-in-law and for his interest, against the printer and publisher of a newspaper, concluding for reparation and solatium for injury, by

the publication of a libel on the female pursuer. It was stated that the male pursuer had gone, as a ship's steward, on a voyage to Australia; but his ship having been wrecked, he had got employment on board a cruising pilot cutter belonging to a port in the colony. A curator ad litem was appointed to the female pursuer. Held, that the defender was not entitled to insist that ante omnia the male pursuer should sist a mandatory.

Authorities-Finlay v. Hamilton, Feb. 15, 1748, M. 6051; Mackenzie v. Ewing, Nov. 19, 1830, ix. S. and D., p. 31; affirmed July 24, 1833, i. Sh. Sup., p. 101; Milne v. Gauld's Trustees, Jan. 14, 1841, iii. Ď., p. 345; Smith v. Stoddart, July 5, 1850, xii. D., p. 1185.

ANSTRUTHER v. MITCHELL.-March 10.

Reduction-Competency-Trust.

In an action of reduction of an assignation of furniture, the pursuer averred that the deed was granted in order to protect the effects from the diligence of the granter's creditors, and that it was understood and agreed between the parties to the deed, that the defender was to hold the furniture in trust for the granter, and to re-convey it when required. The Court held that an ordinary reduction without declaratory conclusions was not the proper action in which to insist for establishing the trust averred and set forth on record; and therefore dismissed the action. It was remarked that, on the pursuer's own statement, the object of the granter of the assignation was to constitute a latent trust, to which the statute 1696, cap. 25, clearly applied.

THOM. BRIDGES and MACQUEEN.- March 11.

Bankruptcy-Title to Sue.

In an action against parties who had acted as law-agents for the pursuer, it was alleged that they had, in violation of their duty as agents, betrayed his interests, and thereby caused him loss, injury, and damage. Damages and solatium were concluded for. The pursuer became bankrupt subsequent to the date of the alleged injuries, but was discharged before raising this action; the trustee on his estate was sisted as a pursuer. The Court held, adhering to the interlocutor of the Lord Ordinary, that there was no claim for damage or solatium, that did not pass by sequestration to the trustee.

Authorities-Milne. Gauld's Trustees, Jan. 14, 1841, iii., D., p. 345; Neilson v. Rodger, Dec. 24, 1853, xvi., D., p. 325; Stat. 2 and 3 Vict. c. 41, sects. 13, 78, and 123.

BUCHANAN v. COWAN.-March 11.

Process-Trial of Questions of fact before Lord Ordinary-Statute 13 and 14 Vict. c. 36, sect. 48.

In an action of count and reckoning, the Lord Ordinary pronounced an interlocutor, finding that specified questions of fact should be tried by himself without a jury. After the trial, an interlocutor was pronounced by his Lordship, containing his findings. Certain of these findings were held to be ultra vires in respect they did not fall under the questions stated in the interlocutor appointing the trial. So far as points were decided, not specified in the interlocutor ordering the trial, the Court recalled the judgment, and remitted the cause to be disposed of.

OUTER HOUSE.

DRUMMOND v. INGLIS.

Road-Public and Private.

The summons in this case concluded to have it found and declared, that a public road passed over a piece of ground in the village of North Queensferry, particularly described in the summons, or otherwise that there was a right of

access over that ground to certain lands belonging to the Guildry of Dunfermline, or otherwise that there had been a public road over that ground up to 1810, and that, since that time, the space had remained open to the public for recreation and other purposes. The Lord Ordinary held that it was incompetent to conclude in the same summons alternatively for a public and private right of road, although the same individuals pursued both conclusions, as, in the one case, it was virtually the public who pursued, and, in the other, private parties. The pursuers then abandoned the second conclusion, and were found liable in a modified sum of expenses.

(Before LORD HANDYSIDE.)

A. B. v. C. D.

Divorce-Forum-Oath of Calumny.

This was an undefended action of divorce on the ground of adultery both in Scotland and in England. The marriage was an English one, between English parties, but jurisdiction against the husband, who was defender, was constituted by a 40 days' residence. Lord Handyside called attention to the averments of adultery in England before sustaining the relevancy. After hearing counsel, he, however, sustained it, and, on a statement of the special circumstances in which the pursuer was placed, granted a commission to the British Consul at Paris to take the oath de calumnia.

(Before LORD BENHOLME.)

ANDERSON ANDERSON.

The pursuer in this case used an inhibition on the dependence of the action. The defender, having been assoilzied, moved for and obtained from the Lord Ordinary a warrant to the Keeper of the Record of Inhibitions to mark the decree of absolvitor on the margin of the record.

DODDS v. M'CALLUM.
Expenses.

This was an action of accounting against the defender as surviving trustee on an estate in which the pursuer had an interest. The Lord Ordinary found that the defender was not indebted to the pursuer to any extent, and therefore assoilzied him from the conclusion of the action. The pursuer, however, proved that her agent in Glasgow had twice written the defender for an explanation of the state of the trust funds in August 1853, but had got no explanation up to the date of executing the summons in October 1853. The defender stated, which was admitted, that he had written the pursuer's agent in August, promising to furnish a state of the accounts as soon as possible; and he also alleged, which was denied, that he had waited upon the pursuer's agent in Glasgow with such a state, and that the pursuer's agent had declined to receive it on the ground that he had ceased to act for her. Having failed to prove this allegation, the Lord Ordinary found the defender not entitled to his expenses, on the ground that he had not given any timeous and satisfactory answer to the pursuer or her agents, although required in writing to do so, as to the amount and disposal of the trust funds under his charge in which she had a contingent interest previous to the raising of the action."

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JURY TRIALS.

[We made arrangements for reporting the cases tried by Jury at the late spring sittings; but those which were not either compromised or abandoned, presented no features of the least professional interest.]

In Losh, Wilson, and Bell, v. Douglas and Co., the question was whether an insurance effected by a broker in Glasgow on a cargo of iron rails sent to