No. 228 Dec. 7, 1821. R. M'INTOSH, Suspender.―Jardine. J. WATT, Charger. Removing.-Letters of ejection having been obSECOND DIVISION. tained by Watt against his tenant, M'Intosh, under Bill-Chamber. the act of sederunt, the latter presented a bill of susLord Meadow- pension, on the ground, inter alia, that at the date bank. McK. No. 229. Dec. 7, 1821. of the decree of removing he was not a year's rent in arrear. The Lord Ordinary refused the bill; but the Court, on an offer of caution at the bar, passed it. J. HERIOT, W. S.-CAMPBELL & MACK, W. S.-Agents. J. ROBERTSON and Others, Petitioners.-Mackenzie. Burgh Royal. Decree renewing in favour of the SECOND DIVISION. petitioners the powers conferred on them, 19th December 1819, to act as interim managers of the burgh of Inverness for twelve months, or till it was restored to a legal magistracy. M'K. No. 230. Dec. 7, 1821. SECOND DIVISION. B. M'QUEEN & M'INTOSH, W. S.-Agents. J. JACKSON, Petitioner.-D. McFarlane. Tutor-Factor Loco Tutoris.-An application having been made by Jackson to be appointed factor loco tutoris on the estate of pupils to whom he was entitled to serve tutor at law, and the Court having refused to do so except on condition of his acting gratuitously, he withdrew his petition.* C. J. F. ORR-Agent. See No. 238. A. KELLY Claimant.-P. Robertson. W. FERRIER, Common Agent.-A. Connell. No. 231. Dec. 7, 1821. F. The Lord Ordinary had dismissed a claim by Kelly in the ranking and sale of Buchanan's estate. SECOND DIVISION. The claim was partly unvouched, and partly sup- Lord Cringletie. ported by documents which did not afford complete legal evidence. The Court adhered as to the part unvouched; but remitted to his Lordship to hear parties quoad ultra. D. M'TAVISH, W. S.-W. FERRIER, W. S.-Agents. MOFFAT'S TRUSTEES, Pursuers.-Corbet-Cranstoun. Ro. Bell. No. 232. M'K. Husband and Wife-Donatio inter Virum et Uxo- Dec. 7, 1821. rem-Title to pursue.-James Moffat and Cathe- SECOND DIVISION. rine Gray had been married for many years, when Lord Bannatyne. the latter, in 1793, purchased certain lands, and took the titles, and also a personal bond, in her own favour, exclusive of her husband's jus mariti. In 1803, they, by a mutual deed of settlement, disponed the lands to themselves, in liferent, and to Andrew Gray, in fee, and appointed trustees for special purposes. The deed contained a power to revoke; and, in 1809, Catherine Gray, without the knowledge of her husband, revoked it, and disponed the subjects in favour of trustees, for purposes different from those in the mutual deed. She died in the course of the same year without issue, after which her revocation being discovered by her husband, he also revoked, and raised an action of reduction,-1. Of the title-deeds and bond acquired by his wife to the exclusion of his jus mariti: 2. Of the mutual settlement in 1803; and, 3. Of the trust-disposition in 1809; to the effect of having it found that he had the sole right to the lands, and the contents of the bond. The grounds on which he rested were,-1. That the funds with which the lands and bond had been purchased, were acquired by his wife by succession to her brother stante matrimonio, and belonged to him jure mariti, and over which she had no right. 2. That if she had any right, it was by donation, which he had revoked. The defences by her trustees were,-1. That there was no evidence that the lands and bond had been acquired from funds falling under the jus mariti. 2. But assuming this to be the fact, the presumption of law post tantum temporis is, that the funds were given to the wife not as a donation, but in remuneration, 3. That although they were to be held as given in donation, yet he was not entitled after his long acquiescence, and after the death of his wife, to revoke. 4. That as the jus mariti extends only over the rents of the heritable property of the wife, and as there was here no room for the courtesy, so there was nothing which the husband could resume: And, 5. That, at all events, his claim can extend to only one-half of the money with which the land was purchased, and not to the land itself. The Lord Ordinary found it proved that the lands and bond were bought with funds falling under the jus mariti of James Moffat; that the right he had to re⚫voke the titles of lands acquired from such funds, or ⚫ the personal bond obtained from part thereof, so far as to the prejudice of his interest in them under his 'jus mariti, is equally competent to be exercised after the death as it was during the life of the said Cathe، rine Gray : that it affords a sufficient title to call for production of and challenge the titles of these ' lands, and of the personal bond, so far as conceived ⚫ in terms exclusive thereof, and to the prejudice of his jus mariti, and of all the settlements of the same, so far as made on the supposition of their f being her absolute property, to the effect of its being determined to what extent he is entitled to challenge the same, so far as it can be shewn that they are revocable as to the prejudice of his jus ma' riti; and, on these grounds, repels the objection to the title of the pursuer to insist in the present re'duction and declarator, To this judgment the Court finally adhered on the 8th March 1816, in respect that it merely decided the question of title, and remitted quoad ultra to his Lordship. Thereafter Moffat died, having left his property to trust-disponees, who sisted themselves as pursuers. The case was thereafter reported; and the Court, after having pronounced an interlocutor in favour of Gray's trustees, altered it, and sustained the reasons of reduction of the disposition and ' trust-settlement executed by the late Catherine Gray, in so far as it imports a revocation or altera'tion of the disposition and settlement dated the ، 26th of April 1803, executed by the said C. Gray and her husband, and decern, and remit to the Lord ؟ ، Ordinary to proceed accordingly ; and they after wards adhered, W. JOHNSTONE-T. JOHNSTONE,-Agents. No. 233. Dec. 7, 1821. T. Waddell, Pursuer.-M'Farlane. J. GILCHRIST and Others, Defenders.—Cuninghame Jameson. Small Debt Act.-Statute 39. and 40. Geo. III, SECOND DIVISION. C. 46. Decree in absence was pronounced against Lord Pitmilly. Waddell in the small debt court at the instance M'K. of Gilchrist. Having been charged on it, he presented a petition to two justices of the peace, who granted a sist till parties should be heard. He did not consign the debt; but intimated the sist to Gilchrist. The latter, however, poinded Waddell's effects. An action of reduction of the decree and execution of poinding, and of damages, was then instituted against Gilchrist and the justice of peace clerk, on the grounds,-1. That the debt was not justly due: 2. That the extract of the decree was irregular, in respect the record was not kept in terms of § 10 of the small debt act, as it consisted merely of a roll of the parties names, sums claimed, and abbreviate of the judgment, signed by the preses; and, 3. That the poinding had been executed in violation of a sist by the justices. The Lord Ordinary assoilzied the defenders, in respect that viewing the decree of the justices as a decree in absence, the pur⚫ suer did not follow out the course pointed out by 'the statute; and that if parties had been heard be'fore the justices, the decision of the justices on the • merits of the dispute, as stated by the pursuer himself, would not have been one of such a description as ought to have been reviewed in this Court on |