TEINDS THE GOVERNORS OF GEORGE HERIOT'S HOSPITAL v JAMES PEDIE, W S (Court of Session)

The Lord Ordinary (Jeffrey) having considered his objections, with the answers for the Hospital, on 12th November 1834, appointed the parties to lodge cases, at the same time issuing the following note:

Note .—‘The competency of giving effect to such a claim of relief as this, in a process of locality , certainly appeared to be settled in the case of the Duke of Roxburghe and Ker, 18th Jan. 1831, subsequently affirmed on appeal. But as the Lord Ordinary understands the judgment of the Court, in the later case of Boyes' Trustees v. Marshall, 18th Feb. 1834, the authority of that solemn decision appears to be shaken; and though he would not have ordered cases on this point alone, he thinks it right to put it in the view of the parties.

Rolland's feu is in a different situation, though the special terms there employed are rather against giving a similar benefit in cases where they do not occur.

The division of the burden among the subfeus may be perplexing; but till the general liability is settled, it would be improper to enter into that question.’

st , It is competent to entertain such a question of relief incidentally in a process of locality, which being one concerning a competition of rights, every plea necessary for extricating the competition may be decided; Stair , iv. 35. 1; Carr, 21st Nov. 1821, and 18th Dec. 1822; Gourlay, 19th Dec. 1821; Lockhart, 2d Dec. 1823; Anstruther, 26th June 1827; Scott, 10th June 1828; Cuningham, 27th Jan. 1829; Macdonald, 12th Feb. 1828; Kerr v. Duke of Roxburghe, 18th Jan. 1831.