The decree in the action of declarator calling as Defender the next collateral heir is final, and bars all subsequent resistance.
Per THE LORD CHANCELLOR:— Parliament conceived that the maker of the improvements would protect his own issue, and that the collateral heirs would be sufficiently guarded by calling the first of them, — those coming after having liberty to intervene.
Per LORD WESTBURY:— The decree is final against the issue of the collateral heir called, in the same manner as it is final against the improver's own issue.
The decree must shew with reasonable certainty that the improvements are truly within the meaning of the statute.
Held (reversing the decree below), that where the improving heir had obtained and exercised authority under the Rutherford Statute, he abandoned all remedies under the Montgomery Statute.
If an heir of entail makes improvements on the estate with a view to charge the heirs succeeding him, he must annually, within four months of the term of Martinmas, and while the improvements are in progress, lodge in the 260Sheriff's office an account, with vouchers, of the sums expended by him; and such account must be signed by him.
But where the improving heir had died four days before the term of Martinmas, and where, consequently, his signature was impossible:—
Held, that the signature of his executor, or personal representative, was, under the circumstances, sufficient.