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letter of even date, the late Mr Miller declared that so long as there should be on the ground a powder-magazine of the value of £1000, it was not his intention to enforce said clause, and "so far as I legally can do so, I hereby dispense with the necessity of your building such dwelling-houses." The pursuer contended that the irritancy of the lease and the statute had been incurred, that the lease was null from the beginning, because the backletter really formed part of it, and dispensed with a condition essential to its validity; that purgation by now erecting dwelling-houses was not proper purgation in the statutory sense. The defender mainly contended that, even if the lease were struck at by the statute, it might be restricted by the Court to twenty-five years, for which period the heir in possession was entitled under the entail to let leases for building or other purposes. The Lord Ordinary (Kinloch) held that it was a deliberate contravention of the entail and funditus null and void; and referred for the principles applicable to it to Mordaunt v. Innes, 9th March 1819, F. C. aff. 1 Sh. App. 169. The defender reclaimed; but the Court (Lord Curriehill diss.) substantially adhered.

The LORD PRESIDENT, Lord DEAS, and Lord ARDMILLAN were of opinion that nothing could now be done to save the tenant's right. It was not that the lease was ab initio null. Ex facie it was quite a good lease when granted, and the back-letter did not by itself nullify it. If within ten years from its date, the necessary dwelling-houses had been erected the lease would have been valid. But then that had not been done, and the question was, whether the tenant's failure to implement that condition of the statute did not nullify his right from and after the expiry of the ten years? Their Lordships thought it did; and, further, the irritancy thus created was not of the nature of a penal irritancy which was purgeable at the bar. It was an irritancy, attaching to the act of a disqualified person who, attempting to take advantage of an enabling statute, had failed to comply with its conditions. There was no authority for holding that an irritancy so arising could be purged, or that the period allowed by the Act for purifying the condition of the lease could be extended. The only question which remained was whether the lease should be reduced in whole or part. It had been suggested that there was a power under the Act to grant leases for thirty-one years, and that there was a power in the entail to grant leases for twenty-five years; but in the former case it was clearly agricultural leases which were contemplated; and the leases in the entail were plainly such as were granted in the course of ordinary administration and for ordinary purposes, not such as were granted for a long period as here, to enable the tenant to do an extraordinary thing-viz., to erect a large building upon the ground. To restrict the lease would, in the circumstances, be to make an entirely new bargain between the parties; and that the Court had never yet done.

Lord CURRIEHILL held (1) that, in accordance with the general rule of law, the irritancy was purgeable by the tenant-the present case not differing essentially from any other case of legal or conventional irritancy; and (2) that, even if the lease fell to be declared void as a lease for ninety-nine years, it was yet good for twenty-five years at common law, and under the entail, and therefore ought to be restricted to that period in accordance with the practice of the Court in various decided cases.

Act.-Gifford and Duncan. Agent-Robert Pringle, W.S.-Alt.— Watson and Shand. Agents-Campbell & Smith, S.S.C.

SECOND DIVISION.

CAMERON V. ROBERTSON.-Feb. 21.

Landlord and Tenant-Removing-Title to Sue.

A crofter on the estate of Lochiel sued for reduction of a summary warrant of ejectment pronounced by the Sheriff-Substitute of Argyleshire at the instance of the defenders, and for damages. The crofters on that part of the estate, of whom the defenders are a committee, have separate arable lots and hill pasture in common. They hold from year to year. The pursuer has had a croft rent free since 1847 in consideration of acting as cowherd for the others, and also a shilling a year from each crofter. He was engaged by the committee of crofters. The committee, in spring 1865, resolved to dismiss him, and one of their number intimated to him on 3rd April that he would not be required as cowherd after Whitsunday, and that he would then require to remove from the croft. On 1st June they petitioned the Sheriff for a warrant for his summary ejection, which the Sheriff, in absence, granted. The Lord Ordinary (Barcaple) reduced the decree, on the ground that the defenders, assuming them to represent the whole crofters, had no title to eject the pursuer. It did not appear, on their own statement, that they were tenants in common of the pursuer's croft, and in possession of it through him. The arrangement by which a cowherd was to occupy a croft rent free was an accommodation to the other crofters, but was also for the benefit of the landlord, as enabling him to let the other crofts to advantage. When the notice was given, the crofters had clearly no control over the occupation of the pursuer's croft for the following year. It might be that when they took their crofts for that year, by tacit relocation or otherwise, they were entitled to rely upon the landlord continuing to give them the benefit of a cowherd being kept by him in possession of a croft rent free, to give them his services for a small fee. But that would be only a claim against the landlord, and not a right in the special subject entitling them to eject the pursuer. The defenders reclaimed; but the Court adhered.

The LORD JUSTICE-CLERK had no doubt. It was not clear whether, in any circumstances, tenants under a verbal lease could pursue a summary removing. No authority had been produced to show this. But here the defenders were not tenants at all of the pursuer's croft. They had no written lease of it, nor had they possession of it under a verbal lease; and there could be no verbal lease without possession. The only person who could have legally ejected the pursuer was the proprietor. The general body of crofters had a perfect right to prevent the pursuer from taking charge of their cattle any longer; but none to eject him from his croft. The other Judges concurred.

Act.-Watson, Rhind. Agents-Crawford Guthrie, S.S.C.Alt.-A. R. Clark, Trayner. Agent-William Mitchell, S.S.C.

PTN.-COLLINS.-Feb. 28.

Poor's Roll.

The applicant brought an action of damages for personal injury against his employers, Messrs King, boiler manufacturers, in the Sheriff Court of

Renfrewshire, and obtained two judgments from the Sheriff-Substitute and the Sheriff, sustaining the relevancy, and allowing a proof. The defender advocated, and applied to be admitted to the poors'-roll. He had been on the poors'-roll in the Inferior Court; and his application was based chiefly on that ground, and on the further ground that he had been brought into this Court with two judgments in his favour, and with a view to a jury trial. He founded on Miller v. Gordon (10 Jur. 326.) He admitted that he was earning 25s a-week, but stated that his employment was of a precarious

nature.

Lord Cowan said—I think that we cannot at present grant this application. I know no case where a man with so large an income as 25s a-week has been put upon the poors'-roll. But it is said that the applicant was on the poors'-roll in the Inferior Court. But we know nothing of the circumstances under which, or the mode in which, he was put upon the roll there; and we must form our judgment on the circumstances now presented to us. This further specialty has been stated to us, that the case has been advocated for a jury trial. But that is a mere assumption. The action may still go off upon relevancy; and it is, I think, competent for the Lord Ordinary to take the proof before himself under the recent Act. This last observation disposes of the case of Miller; for in that case issues had actually been adjusted, and the day of trial fixed before the application was presented. With regard to the apparent large amount of the applicant's income in Miller's case, it is clear that his real income was very different from his nominal income. I am therefore for refusing the application in hoc statu. I do not say what I may do if the case is eventually sent to a jury, and this application is then renewed.

The other Judges concurred.

Act.-A. Nicholson. Ayent J. Coldstream, W.S.-Alt-Rhind. Agent R. Johnston, S.S. C.

SMYTH V. WALKER.-March 6.

Letters of Horning-Execution—Interpolation-Erasure.

Reduction, improbation, and count and reckoning. Reduction was sought of a bond and disposition in security for £300, by the pursuers' father over tenements in Dundee, in 1816, to which defender acquired right, and of diligence following thereon in 1835, and decrees obtained by defender in actions of count and reckoning and declarator at his instance relating to the same matter. The grounds of reduction mainly insisted in were-1. That in the letter of horning two additions had been made between the signetting and recording-first, the words "at Croll's Rocks, in or near Dundee," as the address of the respondent; secondly, the words "sasine in favour of," in narrating the links of the petitioner's title. 2. That, in the execution of horning, the three first letters of Alexander Smith, the respondent's name, were written on erasure. 3. Incompetency in the proceedings of the Magistrates in an action of count and reckoning in the Burgh Court of Dundee. It was replied that the letters of horning were warrants and not grounds of debts, and were protected by the vicennial prescription.

LORD JUSTICE-CLERK-It was unnecessary to decide how far the hornings were protected by prescription, because the alterations were immaterial. It

was not averred by whom they were made, and the defender was not to lose his diligence on account of any unimportant mistake which might have been made by a party for whom he was not responsible. The granter of the security-Smith-was sufficiently identified without the words said to be added. And so with the other objection, the links of title connecting the party were sufficiently set forth, if the words objected to had been abIn the execution, the objection was too critical; and, besides, the name occurred another time where the objection did not apply. It was too late, after so great a lapse of time, to examine into the regularity of proceedings in the Burgh Court to which no objection was taken at the time. The other Judges concurred; and the Court assoilzied the defender from the reductive conclusions of the summons.

Act.-Millar, Webster. Agent-W. Officer, S.S.C.Alt.-Gifford, Thoms. Agent-W. Miller, S.S.C.

LOCALITY OF ORWELL- QUESTION BETWEEN THE COMMON AGENT AND MINISTER AND MR RICHMOND OF COLLISTON.-March 8.

Teinds-Valuation-Commonty.

The question in this case was whether the teinds of portions belonging to Mr Richmond of the divided commonties of Cuthill Muir and Berrymuir were to be held as having been included in a sub-valuation obtained in 1630. The subjects in Richmond's titles are described as "All and whole the lands of Collinstain or Colliston and Strenton, with houses, biggings, yards, parts, pendicles, and pertinents of the same whatsoever lying within the Barony of Cuthill Groudie, and Sheriffdom of Perth ;" and the titles of his authors since 1633 are in the same terms. The common ties were divided, and the portions in question allocated to Colliston and Strenton in 1774. Richmond maintained that the teinds effeiring to the right of commonty in the undivided commons then belonging to Colliston and Strenton must have been included in the valuation, and therefore that it included the teinds of those specific portions of the commonty which now represent the rights over the individual commonty which existed prior to the division. The minister maintained that the teinds in question were quite separate from those valued in 1630; that there was no proof that any rights of commonty were attached in 1630 to the lands of Colliston and Strenton; and that there was at all events no proof that the decree of valuation included any such pertinents of the lands valued as rights of pasturage, or other rights over an undivided commonty.

The Lord Ordinary (Barcaple) sustained the pleas of the minister, proceeding upon the construction of the decree of valuation, which did not, as in the ordinary case, ascertain the rent in stock and teind, but set forth the teind "apart and severally "-as "29 bolls victual, twa part meall, and third part bere." His Lordship held that this was only a valuation of parsonage teind, and could not therefore include the teinds of a commonty, which must necessarily have been vicarage. The heritor reclaimed, but the Court adhered-Lords Benholme and Neaves taking the same ground as the Lord Ordinary, and Lord Cowan adding that, looking to the fact that the onus always rested on the heritor founding on a valuation, it was not proved that there was any right of property in the commonty in question belonging to Colliston and Strenton in 1630.

Act.-Cook, Duncan. Agents-Jardine, Stodart, & Fraser, W.S.Alt.-Clark, Asher. Agents-Leburn, Henderson, & Wilson, W.S.

SOUTAR V. LEIGHTON.-March 8.

Trust-Vesting-Payment to Account.

The

Multiplepoinding arising out of the following circumstances:-Alex. Leighton died in 1857, leaving a trust disposition and settlement. trustees were directed after the death of the truster's wife, who predeceased him, to divide his whole property equally among his three sons, Robert, Stewart, and George, with power to retain the shares and apply the proceeds for the aliment of the beneficiaries, or to buy annuities, or to make advances before the period of division and adjustment, upon which interest was to be paid, and of which repayment might be demanded: declaring that the provisions were not to become vested interests until payment or application for behoof of the beneficiary; bnt, in the event of the decease of one son, his share was to be applied for behoof of the others. By a codicil the trustees were directed to assign the leases of certain farms to Robert and Stewart, with the crop and steading at a valuation. On the truster's death, the trustees accordingly assigned the leases. They further advanced £6000 to Stewart and George, and took security for their advances. In April 1864, a meeting of trustees was held, at which it was resolved to wind up the trust, and, with that view, to raise this action. In 1865 Stewart died, leaving a settlement in favour of Mrs Soutar. Mrs Soutar appeared in the multiplepoinding, and claimed Stewart's share, contending that the advances to him so far as not exceeding his provision had vested in him—1. Because there had been undue delay in winding up the trust; and, 2. Because his share had been paid to him, the resolution of the trustees to wind up the trust having the effect of converting the advances to the beneficiaries into payments to them in the sense of the settlement. Robert opposed the claim, on the ground that there had been no settlement of the accounts, and no payment, real or constructive, to Stewart Leighton.

The Lord Ordinary sustained Mrs Soutar's second plea, holding that the course adopted by the trustees, and particularly their resolution to wind up the trust, made the advances to Stewart payments to account. Robert reclaimed; but the Court unanimously adhered, adopting substantially the view of the Lord Ordinary.

Act.-Gifford, Spittal. Agents-Mackenzie, Innes, & Logan, W.S.— Alt.-Young, Arch. Broun. Agent-Thomas Sprot, W.S.

MACLEAN & HOPE v. FLEMING.-March 9.

Process-Commission-Witnesses Abroad-Evidence Act 1866.

-A. S. 1841.

On a motion for Commission to take the evidence of witnesses beyond the jurisdiction of the Court under the Evidence Act 1866, sect. 2, held that "the existing practice "prescribed by the statute is regulated by A. S. 1811, and that the examination must proceed upon affidavit and adjusted interrogatories.

Act.-Young, Mackenzie. Agents-White-Millar & Robson, S.S.C.Alt.-Clark, Watson. Agent-John Henry, S.S.C.

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