June 5, 1818. the authorities, those who took these new estates, can be held to be purchasers for consideration, or VOLUNTEER. can be regarded in any other light than as volun

MORTGAGE.

Limitations teers.

to collaterals in a marriage settlement

chaser for val.

con. in the

same manner

as if the settlor had had the fee.

Then the doctrine whether new estates could be made by tegiven to them as volunteers by one who was himself nant in tail, only tenant in tail was considered, and the point voluntary as against a sub- very ingeniously argued. There could be no doubt sequent pur- that if he had previously suffered a recovery, or if the estates had been given to him in fee, the brothers and their sons would be volunteers; and they say, on the other side, that there is no substantial distinction in this respect between tenant in fee and tenant in tail: and so the Court below determined, in concurrence with the unanimous opinion of the Judges of the Court of Common Pleas. I cannot advise your Lordships to reverse that decision; and then the question returns to the decree with reference to the other creditors and legatees.

There can be no doubt as to the point considered as a question between the volunteer and the executors of Plaistow, a mortgagee and creditor. If the mortgaged estate should not be sufficient to make good the debt, he has his remedy against the general assets not included in the settlement. But if the estate should pay more, then a question may arise, what is to be done as to the residue between the volunteer and the other creditors; and what is to be done with reference to the legatees. I believe the real meaning of the decree is to decide the question only as between the volunteer and the mortgagee, claiming against this specific estate, con

firming the other creditors to the general assets. June 5, 1818. And then there may still be a difficulty with respect to the legatees.

What I propose to your Lordships then is to affirm this decree, with a declaration that, the affirmance is without prejudice to any question with other creditors besides the Respondents who represent the mortgagee, or between the Appellant and the legatees. This declaration can do no harm; and if the real meaning of the decree should be that to which in construction it is liable, it may be important to declare that our affirmance is without prejudice.

Decree AFFIRMED, with declaration as above.

MORTGAGE.-
VOLUNTEER.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

GORDON-Appellant.

MARJORIBANKS and others-Respondents.

CHARTER.

THE erection of a kitchen, billiard room, and a covered Feb. 9, 16, passage on the back area of a house in St. Andrew's 1818. Square, Edinburgh, opposed on the ground that it would be contrary to the original plan of the new town, and a PLAN.nuisance. The feu charter contained several restrictions, CONTRACT. but none as to building on the back area. Held by the Court of Session that the buildings might legally be erected, on the ground, as it was understood, that the erection would be no material deviation from the original plan. The judgment affirmed in Dom. Proc.

Feb. 9, 16, 1818.

PLAN.

CHARTER.-
CONTRACT.

The Lord Chancellor being of opinion that the mere exhibition of a plan was not a contract or engagement, that all that was there represented would or must be done or adhered to, unless specially referred to as stated in his judgment, post. Vid. ante Gibson v. Feoffees of Heriot's Hospital. Vol. 2. 301.)

Question at issue.

Plan 1767.

House feued

to Lord An

THE question in this case was whether the proprietors of a house in St. Andrew's square, Edinburgh, were entitled to erect a kitchen and other offices according to a plan in process on the back area of their house. The building was opposed on the allegations that it was contrary to the original and general plan of the new town of Edinburgh, and that it would be a nuisance to the neighbourhood; both which allegations were denied, and it was also contended that the mere exhibition of the plan was no restriction, the feu charter containing no such restriction nor any reference to the plan as a restriction in this particular.

The magistrates of Edinburgh, before feuing out the ground on which the new town is built, procured a plan delineating the intended streets and squares, and marking out, by letters, the different areas to be feud. The front row, or lines for the fronts of the houses, were delineated on the plan; and the back areas are marked as pieces of vacant ground, shaded green; the ground being then in grass or tillage. The plan was engraved and published.

The area marked letter N. in the plan, on the kerville, 1784; South side of St. Andrew's square, was, in 1784,

1818.

CHARTER.—

CONTRACT.

feued by the magistrates to David Ross, Esquire, Feb. 9, 16, afterwards Lord Ankerville, and purchased from his trustees, in 1809, by a club of gentlemen called the PLAN.New Club; and the rights taken in the names of the Respondents as their trustees. The charter purchased by granted to Mr. Ross proceeding on the narrative of Club, 1809. his having paid the sum of 2301. " as the rated Feu charter. purchase money of 424 feet of ground of area, "letter N. lying on the south side of St. An"drew's square," dispones to him, his heirs and

assigns whomsoever, heritably and irredeemably, "all and whole the said 424 feet in front of area, "letter N., lying on the south side of St. Andrew's

square," &c. The charter, like the charters of the other feuars in the square, besides conveying to each of the feuars his house, cellarage, and back area, granted as common property, "the "whole space of ground within the line of the "street-ways of the square, as now levelled and " enclosed by a parapet-wall and iron rail, and that as a common property with the several feuars "around the square. But under the condition "that the aforesaid space be used allenarly for the

66

pleasure, health, or other accommodation of the "feuars or their families, but no way to be converted

into a common thoroughfare, or used to any other "different purpose whatever." With respect to the other parts of the subjects disponed, viz. the dwelling-houses, cellarage, and back ground of

the New

the areas, there is no restriction in the charters, ex- Restrictions.

糖

cept upon the right "to subfeu, sell or dispose of

"all or any part of the piece of ground before dis

poned, or house or others built thereon, to be

Feb. 9, 16, 1818.

PLAN.

CHARTER.-
CONTRACT.

"held of them or their heirs, or of any other interjected superior, but allenarly to be held of and "under us and our said successors in office, as superiors, in all time coming." In every other respect the charters respectively declare, that, with regard to the space feued, it should be lawful for the proprietor "to exerce any other act of ownership "which may not be inconsistent with the manner

of holding hereby prescribed;" but under this declaration," that if the said David Ross, Esquire, or "his foresaid, shall convert the subjects built upon "the piece of ground hereby feued into breweries, 66 or do any other act or deed to infer a claim of thirlage, they are to free and relieve us, and our

successors in office, the piece of ground hereby "feued, and feu-duty payable for the same, of and "from the payment of all multures which can be "claimed furth thereof, as payable to any mill to "which the same may have been restricted."

Mr. Ross built in the front of his area a house with a series of closets behind it, reaching to the second story of the house, and about six feet above the highest part of the wall which divides his area from the adjacent property. He also, in his back area, built a coach-house and stables, above which there were two apartments, intended for servants, and a hay-loft. One of these apartments, in the end of the coach-house next the Appellant's property, had a chimney. But neither the Appellant's uncle, the late Baron Gordon, nor the Appellant's father, ever complained of the smoke from this chimney.

In like manner, the other proprietors on the