Scottish Court of Session Decisions

John Fleming was tenant of Mrs Bethune Morrison of Haughton, under a nineteen years' lease, of Grange of Aberbothrie, at a rent of £210. He executed a disposition omnium bonorum in favour of trustees for his creditors. His lease, which had still eight years to run, excluded assignees, but Mrs Morrison agreed, on getting a written renunciation of the lease, that Fleming and the creditors should have certain privileges as outgoing tenants in the same manner as if their lease expired at Martinmas 1834. A renunciation was executed by Fleming and his trustees in March 1834, Fleming being bound to remove at Martinmas following. Some communings afterwards ensued between David Fleming, a brother of John, and his nephew John Fleming, junior, who was a minor, on the one hand, and Mrs Morrison and her factor, on the other, with a view to make a new agreement of lease for the eight years which would have had to run but for the renunciation; but parties were at issue whether any concluded agreement was effected. After the renunciation was executed, Mrs Morrison, considering no agreement to have been made with the Flemings, let the farm to Duncan Cameron for nineteen years from and after Martinmas 1834.

In October 1834, John and David Fleming raised an action to compel Mrs Morrison to grant a lease for eight years, and concluding alternatively for reduction of the renunciation; but the conclusion of reduction was afterwards departed from. On 3d November she presented a petition to the Sheriff of Perthshire for warrant of ejectment of Fleming. Answers were lodged by David and John Flemings, which were followed by replies, and the Sheriff, on allowing duplies by 19th November, ordained them to find caution for violent profits by that day, or to show cause in the duplies for not doing so. Flemings then presented a bill of advocation ob contingentiam of the process of implement against Mrs Morrison; and this bill was passed de plano.

In the advocation Mrs Morrison pleaded that before going into the merits of the question of contingency it was necessary for Flemings to find caution for violent profits just as much as if the process of removing were still before the Sheriff.

Flemings answered that the processes ought to be conjoined, and that in the circumstances no caution should be required, at least hoc statu.

The Lord Ordinary “ordained the advocators to find caution for violent profits within three weeks from this date.”

The advocators reclaimed, and appended no record to their note, the record not having been made up, and the interlocutor being one which did not dispose of the merits of the case. The respondent objected to the note as incompetent owing to the want of a record, as reasons and answers of advocation had been prepared, though the record was not closed. The Court “appointed the respondent to print and box the reasons of advocation, with the answers thereto,” reserving the question what party should be liable in the expenses.

On advising the note on the merits,