Scottish Court of Session Decisions

In March, 1832, Mrs Helen Guthrie or Hagart, wife of Peter Conacher Hagart, residing at Glenisla-House, purchased, from Mrs Ann Webster, the lands of Inverharity Wester, and others. Mrs Webster had previously borrowed £500 from John Robertson, farmer at Leitfie, and disponed the lands to him in security. The disposition contained a power of sale, “in case you (Mrs Webster) or your foresaids should fail to make payment to the said John Robertson or his foresaids, of the sums that should be due on the personal obligation therein contained, within three months after a demand should have been made to you or your foresaids, personally, or at your dwelling-places, if within Scotland, in presence of a notary-public and two witnesses.”

In May, 1834, a demand of payment was made by Robertson upon Mrs Webster before a notary and witnesses, accompanied by an intimation of the purpose of selling the lands, in case of failure, to pay the debt. Schedules were also served on Mrs Helen Guthrie or Hagart and her husband, at their dwelling-place of Glenisla-House, where it appeared they all lived together. A regular instrument of intimation was executed, which bore, that the service had been made by delivering the schedules to “Mrs Helen Guthrie or Conacher, or Conacher Hagart, for herself personally,“and by giving her the schedules for her husband and Mrs Webster. In the schedule served on Mrs Helen Guthrie or Hagart, there was a misnomer in her own Christian name, which was written Anne, in place of Helen; but she was described as “spouse of Peter Conacher, or Conacher Hagart, residing at Glenisla-House.” There was no other person than Mrs Helen Guthrie, or Hagart, to whom this designation applied. Her husband had originally been named Peter Conacher, but took the addition of Hagart on succeeding to an estate.

Robertson haying advertised the lands for sale, in terms of his bond, Mrs Guthrie or Hagart, and her husband, presented a bill of suspension, without caution or consignation, alleging that no intimation had been given to her, the proprietrix, as no schedule had been left for her, but only for a Mrs Anne Guthrie or Conacher, or Conacher Hagart. Robertson answered, 1st, That as the principal instrument of intimation was ex facie regular, it could not be impeached but in a reduction; 2d, That the designation was complete, as she was correctly set forth as spouse of Peter Conacher, or Conacher Hagart, residing at Glenisla-House; and, 3d, That in the circumstances, as all the parties lived together, and the schedule served on Mrs Webster, who was the party to whom Robertson had lent the money, as then proprietrix, was correct, an error in the schedule left for the purchaser was not material.

The Lord Ordinary, “in respect that the bill is offered without caution, refused the same and found the complainer liable in expenses.”

The suspenders reclaimed.

The Court considered the objection to be ill founded, but, in the circumstances, “remitted to the Lord Ordinary to refuse the bill, on condition that the sale of the lands shall not be proceeded in till the 8th day of April next, and to the above effect recalled the interlocutor reclaimed against, and, quoad ultra, refused the desire of the reclaiming note.”