1820.

HERIOT'S

HOSPITAL

V.

J. C. ROSS.

entry of a purchaser. The Respondent proposed to pay 4207. the amount of one year's sub-feu duty. The Appellants refused to accept less than one year's full value of the land, as improved and increased by the buildings. The Respondent thereupon brought an action against the Appellants, seeking a declaration that purchasers were entitled to demand an entry from the Appellants, as superiors, on payment of 4207. in full of the composition exigible by the superior upon the entry of the singular successor; and that the Appellants and their successors, as superiors, should be decerned to enter purchasers and singular successors of the Respondent, as vassals, accordingly on payment of 4207. or the amount of sub-feu duties for one year, in full of non-entry duties, casualties of superiority, and other claims for entry of singular successors.

The Appellants contended in their pleadings in defence, that they were entitled to a full year's value at the time when the entry was to be given.

The Lord Ordinary and the court, upon a reclaiming petition, after condescendences and a hearing, delivered judgment for the Respondent. Upon a further reclaiming petition, praying the court to alter the interlocutor pronounced, so far as to find that the Appellants were entitled for the entry of an adjudger or purchaser to one year's sub-feu duty, and one year's average value of the whole profits derived by the pursuer and his successors from his sub-feus, by casualties or in any way whatever, the court by an interlocutor, pronounced on the 6th of June 1815, adhered to their former judgment *.

* See the Report in the Fac. Coll, vol. P.

From these several interlocutors the appeal was presented.

For the Appellants :-The Lord Advocate, Mr. Warren, (and Mr. J. Miller.)

For the Respondents :-Sir S. Romilly and Mr. Moncrieff.

The authorities cited were,

For the Appellants, Aitchison v. Hopkirk, Fac. Coll. 14 Feb. 1775; Jordanhill v. Craufurd, 13 Feb. 1752; Kilkerran, 395, and Lord Elchie's, voce Tack, No. 18. Alison v. Ritchie, 3 Feb. 1730; Diet. vol. 2, p. 419; Bankton, B. 2, tit. 9, §6; Erskine, B. 2, tit. 6, § 27. Cowan v. Lord Elphinstone, 20 March 1636; Stair, B. 3, tit. 2, § 24 and 27; Ersk. B. 2, tit. 11, § 24. Erskine v. Earl of Home, 17 July 1630, Durie. Brandon Baird, contra, 18 July 1633, Gibson; Ersk. B. 2, tit. 5, § 7 and 12. Cathcart v. Tait, 15 Feb. 1782, Fac. Coll.; Kaimes's Stat. Law, voce Feu. Almond v. Hope, 9 March 1639, Durie. Gray v. Allan and Taylor, 1810.

For the Respondents,--
Heriot's Hospital v. Ferguson, July 30, 1773,
Fac. Coll. vol. 5, No. 83; Elchie's Decis. voce
Feu; Craig, 2. 20. 32; Stair,
3. 10. 19; Ersk. 2. 12. 24.
Rothes, March 23, 1622;
Murray, 30 March 1637, Durie; Stair, 2. 4. 66.
Monkton v. Yester, 15 Feb. 1634, Durie. Cowan

3. 2. 27; Bankton, Ramsay v. Earl of Durie. Paterson v.

1820.

HERIOT'S
HOSPITAL

v.

J. C. ROSS.

1820.

HERIOT'S

HOSPITAL

บ.

J. C. ROSS.

v. Lord Elphinstone, 26 March 1636, Durie; Spottiswoode's Practicks, p. 56. Almond v. Hope, 9 March 1639, Durie. Stair, 2, 4. 32; ib. 4. 45. Bankton 2, 4. 66.

The case stood over for judgment from the time of the argument in 1818 until the end of the Session 1820, when the Lord Chancellor, in moving the judgment, observed, that it was a question of great importance and difficulty; that he had bestowed upon it, at various times since the argument, much and repeated attention, but he could not venture to advise the House to disturb the judgment.

The result of his deliberation was, that the majority of the judges below had decided the case properly. Judgment affirmed.

24th July 1820.

INDEX.

N. B.-The initials L. R. in the following Index, subjoined to
some of the articles, denote the opinions expressed by Lord
Redesdale. In all other cases the opinions are those of the
Lord Chancellor.

ACCEPTANCE.

Vide BILL OF EXCHANGE.

ACCOUNTS. Vide ARMY AGENTS.

EVIDEnce. EXCISE.

FRAUD. INTEREST. PLEADING. PRACTICE.
ACQUIESCENCE. Vide DECREE. PARTNERSHIP.
ACTION. Vide PLEADING.

AFFIDAVIT:

Semb. That affidavits (filed upon interlocutory proceedings)
are to be considered as matters of record, and that the
facts disclosed by affidavits so filed may be viewed by the
court in deciding upon the validity of a plea.—Quære.
Wood v. Rowe

p. 596

AGENT. Vide ARMY AGENT.
AGREEMENT. Vide FRAUD. FAMILY COMPACT. INTEREST.
PARTNERS. PLEADING.

According to all law, and upon principle, where there is
fairly a doubt as to the rights of parties, and an agree-
ment without fraud, it is binding. In a case of doubt as
to legitimacy, an agreement between claimants to divide
the property is valid.-Hotchkis v. Dickson

·

348
The case is different where there is a question, whether the
parties dealt with equal knowledge of the subject ib.
So where (as in the case of Gordon v. Gordon) there is a
suppression of a material fact by one of the parties, viz.
the private marriage of the father, which the defendant
knows, and calls a mere ceremony. The fact, what-
ever its character may have been, should be com-

municated at the time of the agreement.-Hotchkis v.
Dickson

P. 348

Such communication is essential to the fairness and validity
of the transaction between brothers on a question of rights
depending upon legitimacy.-Id.
- 348, 349

ALIENATION. Vide TAILZIE.

AMBIGUITY. Vide CONSTRUCTION.

APPEAL. Vide COSTS. DECREE. INTEREST. PRACTICE.
Care should be taken in framing cases to show what are the
points of appeal. (L. R.)-Lansdowne v. Lansdowne - 97
APPOINTMENT. Vide DEVISE. POWER.

An appointment under a power given by contract, being of
a sum of 3,000l. a year, lawful money of Great Britain,
issuing out of lands in Ireland, such sum must be paid in
such lawful money, unless the instrument of contract in
all its other parts manifests a clear intention to the
contrary.-Lansdowne v. Lansdowne
- 92, 93
APPROBATE AND REPROBATE. Vide DEATII-BED.
ARMY AGENTS,

Having distinct accounts with the colonel and the pay-
master of a regiment, upon the assurance of the pay-
master that he was authorized by the colonel, and on
his account, to provide certain articles for the regiment,
transfer to the debit of the colonel a sum standing in
their books, originally debited to the paymaster; and
having settled accounts with, and the balance due from
the paymaster, sue the colonel for the balance claimed
as due from him, including the sum upon the debit trans-
ferred. Pending this action, the paymaster, on the re-
quisition of the agents, furnishes them with a letter from
the colonel as the authority for the charge against him.
The agents being fully satisfied as to the extent and
meaning of this authority, in the course of their pleadings
maintain strenuously the right of the paymaster to act
under it, and judgment in the first instance is given in
their favour. After they had obtained this judgment,
apprehending the possibility that it might be reversed,
they re-transfer the sum in dispute from the debit of the
colonel to the debit of the paymaster, giving him notice