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The principle is confirmed by the case of Ross against Clayton, Nov. 12. 1824, and very strongly by the observations in the House of Lords in deciding it, as quoted by Mr More. In the present case, it was by the act of the testator himself that the portion of the price retained was made a real burden on the property, which he never removed; and though he granted also a personal bond, for the convenience of the vendor, that is precisely what occurred in the case of M'Nicol, and could not alter the nature of the debt passive , as an heritable debt so created by the debtor's own will.’
Lord Justice-Clerk .—I cannot find sufficient grounds for altering this interlocutor. The principle laid down in the case of Fraser is paramount, and I cannot draw any distinction between that case and the present. I have the same remark to make with regard to the case of M'Nicol.
The Court accordingly adhered to the interlocutor of the Lord Ordinary, and found expenses due.
Pursuers' Authorities.—M'Nicol, 16th June 1814, and 31st Jan. 1816; Fraser v. Fraser, 13th Nov. 1804.
Defender's Authorities.—Case of Fraser; Ross v. Clayton, 12th Nov. 1824; affirmed in House of Lords.
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