A reclaiming note being presented against this interlocutor, the Court (17th June 1830), superseded the cause till the third sederunt day of November 1830; and on resuming the cause this day (no mandate being yet lodged), the Court adhered to the Lord Ordinary's judgment, with expenses.

First Division.-Lord Ordinary, Newton.-Act. M'Neill.Alt. Christison.-John Nairne, S. S. C., and Renny & Hunter, W. S., Agents.-Mr Hamilton, Clerk.

17th November 1830.

No. 8.-ARCHIBALD LYLE & TRUSTEE, Pursuers, v. RoBERT BALFOUR & GEORGE DUNLOP, Defenders. Process-Declarator---Competency-Held that a declarator, in which there is no conclusion against a person cited as defender, is incompetent as against him.

In 1814, Graham of Gartmore granted part of his entailed estate in lease for 19 years, at £70, 4. 10. to Mr G. Dunlop, W. S., who possessed, and granted a sub-tack in 1815 to George Graham, excluding assignees and sub-tenants, for £180, during his own lease. The sub-tack was recorded. Almost immediately thereafter, Dunlop, for £700, assigned the sub-tack, to the extent of £100 surplus rent, to Thomas Balfour, who, for £650, transferred the assignation to the defender in December 1816-the assignation and transference being formally intimated, in March 1820, to George Graham, who appeared in the rental books as sub-tenant. Nevertheless, in December 1820, Gartmore excambed the lands for those of Gartschell. In 1822, George Graham agreed to renounce the sub-lease to the pursuer, who afterwards let the lands to another. Dunlop became insolvent. The pursuer, who had obtained disposition to Drum from Gartmore's disponees, in October 1826, took infeftment in February 1827; and in April 1827, the defender, Balfour, brought against him an action of declarator and payment for the surplus rent of £100. On the closed record,

"The Lord Ordinary (16th December 1828), Finds that Mr George Dunlop, being Gartmore's tenant in the lands of Drum, granted a sub-tack of these lands, and assigned the surplus tack-duty, to the extent of £100 yearly, during the currenof the sub-tack, to the cedent of the pursuer, which assignacy tion was duly intimated to the sub-tenant: Finds that the defender acquired the lands of Drum, and was allowed to draw the full sub-tack duty directly from the sub-tenant, the annuity being regularly paid to the pursuer by Mr Dunlop, who was also bound in personal warrandice: Finds that the sub-tenant having professed his inability to continue to pay the sub-rent, renounced his sub-lease, which was accepted by the defender, without any communication with Mr Dunlop, the principal tenant; Finds, under these circumstances, that the right of the pursuer being validly constituted, cannot be defeated by this transaction between the defender and the sub-tenant: Therefore finds that the defender is liable, as coming in place of his sub-tenant, to pay to the pursuer the sum of £100 half-yearly, during the years which would have been the currency of the sub-lease, if not renounced, commencing with the half-yearly annuity due at Whitsunday 1827, the first payment subsequent to citation in the process, and that he is bound to grant an assignation to that extent, out of the rent payable by the tenant: Finds no expenses due, and decerns.-Note.-The defender ought to have inquired as to the leases on this property at the time of his purchase, and he would have ascertained that Graham was only a sub-tenant.

The matter indeed ought to have been distinctly explained to him at the time. Again, when he accepted the renunciation of the sub-tack from George Graham, on seeing that he was not principal tenant, he should have been led to communicate with Mr Dunlop, the principal tenant, which must have produced an explanation which would probably have put matters on their proper footing, although it seems impossible to defeat the assignation which was validly completed, because the defender, through neglect of his own interest, was deceived into the belief that he was safe to transact with the sub-tenant. Expenses have not been given, because the pursuer, by not levying the annuity directly from the sub-tenant, but consenting to receive it from Graham's agent (which he could not refuse, perhaps, as he was guarantee for it), contributed to continue the defender in his ignorance of the true state of his rights. The citation in the process is due intimation that henceforward the assignee is to claim the annuity from the subject charged with it, in terms of the intimated assignation."

The pursuer reclaimed, and at advising, was allowed to lodge an additional plea in law regarding the trust relation between Mr Dunlop and Gartmore. But as, when prepared, it included a new averment, it was not allowed in its then shape. Meantime, the pursuers brought against both the defenders a declarator to have certain facts, pertaining to the alleged trust in Dunlop, and his consequent actings as trustee, declared, for the purpose of founding on them in the sisted action at the defenders' instance, with an additional conclusion for expenses in a certain event. Decree in absence went against Dunlop. The defender Balfour appeared; and the pursuer pleaded, in limine, that he had no title or interest to appear; and that, though he had, he was bound by the decree in absence against Dunlop. The Lord Ordinary having, on the 13th of January 1830, ordered cases to the Court, while he decerned in absence against Dunlop, the pursuers pleaded-That, as they had got decree on the declaratory conclusions against Dunlop, and did not demand the contingent expenses in the libel from Balfour, he had no interest whatever to appear; and that, so far from endeavouring to evade the Judicature Act, they were in the legitimate course of declaring a trust. The defender pleaded, That the pursuers, having called him as a party, could not object to his appearance ;-That the avowed object of the action was to affect his assignation, by making use, in the other process, of decree in this, which merely declared a trust in the person of Dunlop-and so to deprive him of a decree otherwise beyond alteration : That decree in absence against one defender could never affect another appearing with an equal interest: That there was an obvious attempt to evade the salutary strictness of the Judicature Act in regard to a closed record, where there was no res noviter veniens: That no party could bring a declarator of facts, in which he alleged no interest, and from which he inferred in his summons no legal rights or consequences That Gartmore and Dunlop, or others in their direct right, were the only parties who could insist in such a declarator. At advising both cases, the pursuers argued, that if the defender pleaded no possible use to be made of the declarator in the other action, the declarator was innocu utilitatis in regard to him: That the Court could not anticipate a judgment against them as to the use which they proposed to make of the declarator; and that the de

fender had been called only to shew why decreet should not be taken against Dunlop.

The Lord Justice-Clerk had formerly thought with Lord Glenlee, that Dunlop was acting in the matter just as the confidential agent of Gartmore; but as the trust did not seem to be explicitly enough pleaded, a new plea was allowed. On advising the minute and answers, on the 4th of July 1829, it was certainly the understanding that strictly a counter summons of declarator should be raised. This is not such a declarator. It ought to have concluded, not only regarding the lease and trust, but that, in consequence of the trust, Lyle was absolute assignee. The Court were not called upon to give an abstract opinion on a bare declarator of trust. The competency of such a declarator, destitute of all petitory conclusions (for the conclusion for expenses could not be held so), was very doubtful. Such a case came very near that of Zetland. The action appeared incompetent; and therefore there was no occasion to inquire into the relation between the two actions.

Lord Glenlee agreed. The only doubt was, whether, independent of all application to the other process, the decree of declarator might not be otherwise beneficial. Another circumstance

worthy of argument was, that the principal tack contained no power to sub-set.

Lord Cringletie thought the case just like that of Zetland. There was no conclusion whatever against Balfour, drawn from the declarator of trust.

The Court sustained the preliminary defences, and dismissed the action quoad Balfour.

Authorities for Pursuers.-A. v. B., February 21, 1828; Sh. & D., 571. Cook v. Cuthill's Trustees. Wylie v. Thomson, January 1830. First Division.

Authorities for Defenders.-Pollock v. Turnbull, January 16, 1827; Sh. 195. Gifford, &c. v. Traill, &c 8th July 1829. Redfearn v. Sommerville, 26th May 1813; House of Lords, 1 Dow, p. 50. Gordon v. Cheyne, 5th February 1824.

Second Division.-Lord Ordinary, Medwyn.-Act. Dean of Faculty (Jeffrey), More.-Alt. Skene, Shaw.-Edward M.Millan, S.S.C., & James Pedie, W. S., Agents.-Mr Thomson, Clerk.

18th November 1830.

No. 9.-JOHN CAMPBELL Suspender, v. ROBERT MANN,

Charger.

was

Damages Slander-Defamation-A Pursuer having averred in Court, and ex brevi intervallo, out of Court, that a surgeon's certificate of the defender's dishealth lodged in causa, false, and that the certifier was sometimes in liquor; and the surgeon having brought an action of damages for slander— Held, that an offer to prove occasional intoxication was irrelevant to elide the action; but that the falseness of the certificate (although not alleged to have been mala fide) was a relevant fact, if proved, to mitigate the damages.

John and Ann Stewart, residing at Baillieston, being indebted to the suspender (Campbell) in a sum, were cited at his instance, to appear before the Justices of the Peace, in a Small Debt Court at Hamilton, on 5th January 1829. When the case was called, a certificate was presented to the Bench by the debtor's procurator, of this tenor :—

"BAILLIESTON, 4th January 1829.—This is to certify that John Stewart has been in a bad state of health for more than two weeks, and his sister, Ann, for a much longer time ;-therefore, in my opinion, it would not be safe for either of them to venture far from home till their health be further improved.

(Signed)

"ROBERT MANN, Surgeon." Campbell having just before seen one of the defenders, Ann Stewart, in Hamilton, to which she had walked (a distance of four or five miles) from her residence on that day, denied that the certificate was correct; and

being asked by the Bench and the procurator for the debtors, if he knew anything about the surgeon who granted it, made answer, that he was sometimes the worse of liquor; and shortly after, on the same day, he repeated this statement concerning Mann to a third party, after leaving the Court-house. Mann, thereupon brought an action of damages against him for defamation, averring in his summons that the statement was false and malicious, and calculated to injure him in his character and profession, &c. In defence, it was maintained,-I. That the action was vexatious and frivolous.-II. That the statement libelled was privileged, being made by a litigant in causa, and pertinent to the cause.- -III. That it was true. In his condescendence, the charger did not repeat his allegation of Campbell's statement being "false and malicious;" and a proof being allowed, the Sheriff pronounced as follows:

"Finds that the slanderous words spoken by the defender, were calculated to hurt the pursuer's feelings, and might injure his professional reputation; but that these words were not uttered voluntarily in the first instance, in the Justice of Peace Court, but in consequence of questions put to the defender by the Justices, and by the agent for the defenders in the action before the Justices; and that the slanderous words afterwards spoken, were uttered in the same way, and while the defender was under the influence of temporary passion: Further finds, that the pursuer has not alleged, or offered to prove, that the defender had ever before spoken disrespectfully of him; therefore, under the whole circumstances of the case, decerns against the defender for the sum of £10, and for the expense of process, of which allows an account to be given in, and remits to the Auditor to tax the same, and to report."

The complainer having presented a reclaiming petition to the Sheriff-depute against the interlocutor, the following sentence was pronounced :—

5th February 1830.-Having considered the reclaiming petition, and reviewed the proof, and whole process, and advised with the Sheriff, adheres to the interlocutor complained of, in so far as it finds damages due; but in the whole circumstances of the case, modifies the same to £5, and refuses the desire of the petition, quoad ultra.”

A charge being given for this sum, and the expenses, Campbell brought a suspension on the grounds,I. That malice was not proved nor properly alleged.II. That the statement was made judicially and privileged; and III. That the suspender's averments, that the Stewarts were in good health a few days before, and that Mann was addicted to intoxication, were relevant, and should have been admitted to proof by the Sheriff. Answered, I. and II. The calumnious statement being repeated by the suspender after he left the Court, and when it could no longer affect his cause, afforded substantial proof of malice. -III. That the suspender's averments in relation to the certificate, were irrelevant, as he did not aver that it was granted mala fide, or sine causa cognita: That although Ann Stewart was in Hamilton when it was presented, she was in bad health, and unable to attend the Court; and the averment that Mann was addicted to habits of intoxication was quite vague and irrelevant. The Lord Ordinary pronounced this interlocutor and note:

"Edinburgh, 13th October 1830.-Having considered this bill, with the answers thereto, and productions, refuses the bill, but finds no expenses due.-Note.-The Lord Ordinary entertains

some doubt whether, instead of a formal action of damages, the expense of which would be far greater than the sums awarded in name of damages, the charger ought not to have applied by petition and complaint to the Justices, and called upon them to protect him as one who, in his professional capacity, had given evidence in a question before them. It appears of no importance whether the injury was done in Court, or immediately after, and as a consequence of what had passed in Court. It will be observed, too, that the certificate by the charger was not correct, importing that the parties summoned, or either of them, could not venture far from home until their health was improved, which was not the fact, at least as to one of them, who had gone to Hamilton for the purpose of attending the Court; and if upon this ground the suspender had rested his bill of suspension, the Lord Ordinary would have passed the bill, for the purpose at least of mitigating the amount of the damages awarded. The Sheriff, it appears, bad properly diminished the sum originally given to the extent of one-half, but, upon the same principle, a still farther reduction should have been made; but instead of this, the suspender has improperly and irrelevantly insisted for a proof, not of the respondent's having been intoxicated at all times, or at that particular time, but merely of occasional intoxication, without reference to his situation when the certificate was made out, while the certificate itself goes far to prove the contrary. In these circumstances, the Lord Ordinary has refused the bill, but has followed out his opinion, so far as not to award the expenses of the answers."

A second bill was then presented, and refused; and on a reclaiming note, the Court, after observing that the certificate was very loose and objectionable,

No. 10. WILLIAM SCOTLAND, Suspender, v. EDWARD
WALKINSHAW, Charger.

Process-Title to insist-Partnership-A part owner not entitled to sue in his own name for a Company debt.-A part owner (or proprietor of one-half) of a ship, having raised action in his own name for a Company debt, and being met with an objection to his title; and having then raised a supplementary action in name of the other part owner for half the debt, and also restricted the conclusions of the original action to one-half the amount; and no conjunction of the actions being made, and decree in absence being given in the supplementary action against the defender: Original action dismissed as incompetent, with expenses.

In January 1829, the suspender, designing himself "William Scotland, shipowner in Kincardine, owner of the brig or vessel called the Trusty of Kincardine," brought an action before the Court of Admiralty, against the charger, for payment of a certain sum of demurrage, on account of the detention of the said vessel. The defender having lodged a bond of caution, the Judge-Admiral remitted the cause de plano to the Jury Court, where defences were lodged, in which it was maintained, in limine, That the pursuer (Mr Scotland) being only a joint owner of the brig Trusty, with his brother, Robert Scotland, had not a sufficient title, without his co-owner's authority, to maintain in his own name, an action relative to their joint property. The Jury Court having re-transmitted the case to the Court of Admiralty to consider the preliminary defence; the pursuer, to remedy the defect, raised another action in the name of his

brother and co-owner, Robert Scotland, narrating the proceedings in the previous action, and concluding for one-half the sum of demurrage claimed in that action. He at the same time lodged a minute in the original action, restricting his conclusions to onehalf the sum at first concluded for. He then moved the Court to conjoin the relative actions, but this was opposed by the defender, on the ground that it would prejudice the interests of the cautioner in the original action, who had relied upon the technical objections to the competency of that action. The Judge-Admiral at first repelled the objection to the pursuer's title, and remitted the cause to the Jury Court; but afterwards, upon a reclaiming petition, appointed the parties to give in cases on the point, "Whether in any, or what cases, a part owner of a vessel can sue for his own share of claims relative to the concern?" In the meantime, the second action, at the instance of Robert Scotland, came forward, and the defender being unable to find caution for the conclusions of the action, decree went out against him, and was extract

And in the original action, the Judge-Admiral pronounced the following interlocutor:

"The Judge-Admiral having advised the revised cases for the parties, and whole process, Finds that it is the general rule of law that a part owner of a vessel cannot, per se, insist in an action for debts due to the whole owners : Finds that this action was brought by one part owner, without concurrence of his co-owner, for payment of the whole claim alleged to be due to both; and in this action, caution having been found in the usual form, was remitted to the Jury Court, and was thereafter remitted by the Jury Court to this Court, to consider the preliminary defence now insisted in: Finds that, after this last remit, the pursuer raised a supplementary action against the defender, concluding for his share of the claim originally libelled, and craved liberty to restrict his original libel to the sum concluded for in this supplementary action: Finds that thereafter the cautioner in the original action took a protest, that in virtue of those proceedings he was liberated from his bond of caution: Finds that thereafter an action was brought into this Court by the pursuer's co-owner, Robert Scotland, for his share of the claim, who obtained decreet in absence ag inst the defender : Finds that the proceedings which have taken place since the date of the original action cannot cure the defect in that action, nor bring the case under any of the exceptions to the general rule above alluded to; therefore, alters the interlocutor complained of, and assoilzies the defender, reserving to the pursuer to bring any other more competent action, as he shall be so advised: Finds the pursuer liable in expenses, of which allows an account to be given in, and remits to the Auditor to tax the same, and decerns."

Walkinshaw having charged the suspender on this decree for payment of the expenses, the present suspension of the charge was brought, in which it was maintained, That the supplementary action at Robert Scotland's instance, for payment of one-half the demurrage, and the restriction of the conclusions in the original action, remedied any defect in the title to insist in the original action: That it would be attended with the greatest inconvenience to prevent part owners from suing for their share of the common property, in cases where the concurrence of the coowner might be refused from caprice, collusion, &c., or where his concurrence might be impossible, from his having no persona standi, not being compos mentis, and many other causes: That Robert Scotland could not now concur in another action, as he had

already got decree in an action at his own instance: That the suspender would thus be deprived of all re

course.

The Lord Ordinary (Moncreiff), to his interlocutor appointing the bill to be answered, appended the following

"Note.-The original defence proceeded on a mistake, in assuming that the complainer and his brother were joint owners of the ship. They certainly were not so, but part owners only, the shares being defined in the registry, whereby each had, like an heir portioner, a separate estate, which he could dispose of. Still the general rule seems to be settled in England, that even pirt owners must concur in actions against third parties for money due on account of the ship. But this rule is complicated with something in the form of pleading, and does not infer a nullity in the action, as far as the Lord Ordinary is informed. He, therefore, thinks that the point deserves consideration under our law, lest we should act on a rule without being aware of its limits, or understanding the proper remedy."

In the answers, it was maintained, That the pursuer's title to sue in the original action was inept, he being libelled as owner, while he was, in fact, only a part owner of the vessel: That the objection was not remedied by the minute of restriction lodged in the action, limiting the conclusions to one-half the original amount, in as far as this minute did not alter or amend the statement in the original precept, wherein the pursuer's title was set forth: That an amendment of the libel was requisite: That the objection was not removed by the supplementary action at Robert Scotland's instance, which was a distinct action, and never conjoined with the original process : That a part owner was not entitled to sue by himself individually for his own share of freight, demurrage,

&c.

The cause having been reported to the Court,

Where

Lord Balgray considered the suspender wrong in law. joint owners or a company sued for a company debt, it might not be necessary to have all the parties in the field. The managing partner might have power or mandate to transact for the rest, and But here a to grant valid discharges in name of the company. part owner brought an action in his own name for the whole debt, of which only a part was his. He was properly met by an objection to his title; he could not discharge the debt. If the supplementary action had been conjoined, or a new one brought in name of both, he could have understood it.

Lord Craigie was for allowing modified expenses, but not the whole which had been given by the Judge-Admiral. The origi nal action was incompetently brought; but the charger, if allowed his expenses for lodging a defence to the title, had no equitable grounds for resisting the conjunction of the processes, and should not get expenses after that date.

Lord Gillies.-The whole question was, whether a part owner was entitled in his own name to bring an action for a company debt? The defender, before going to the Jury Court, was not entitled to open his mouth; but on going there, he immediately lodged his defence; and was he not entitled to his expenses at that time? The pursuer should immediately have consented to withdraw his action. Suppose the two actions had been conjoined, would he not have been entitled to his expenses at the date of the conjunction? The suspension was groundless.

The Court remitted to the Lord Ordinary to refuse the bill.

First Division.-Act. Dean of Faculty (Jeffrey), et alii - Alt. Solicitor-General (Hope), et alii.-Charles Fisher & W. Mackersy, W.S., Agents.-Sir W. Scott, Clerk.

OUTER HOUSE.

13th November 1830.

No. 11. GRAHAM'S TRUSTEE, Pursuer, v. ATKINSON, &C., Defenders.

Process Summons, 6 Geo. IV., c. 120, § 2.-In an action for interest on arrears of fen-duties, against an unent red heir of entail, Held, that the summons must state specifically on what ground it is demanded from him.

The pursuer raised an action against the defender for the sum of £15, being the interest of arrears of fen-duties from the lands of Powmill. The estate of Powmill was under strict entail, and the defender had not made up any titles to it. The summons contained the following subsumption :—

"That where Atkinson, son of Sir George Atkinson, residing in Ireland, or elsewhere abroad, grand-nephew and heir of entail, or heir general of the deceased John Crawfurd Balfour in the lands and estate of Powmill," &c.

In defence it was objected in limine,-I. That the action, as laid against the defender, was incompetent, as it concluded against him for interest of the arrears of feu-duties from the lands of Powmill, without libelling that he had been served to the late John Crawfurd Balfour, either as heir of line or otherwise, or had been charged to enter, or that he represented him on any of the passive titles known in law, or that he was vested in the estate of Powmill.-II. The summons was not in terms of 6 Geo. IV., c. 120, sec. 2, as it did not state on what ground the sum in question was claimed from the defender; whether in respect of the said John Crawfurd Balfour's original liability for it, and the defender's representation of him, or otherwise. The Lord Ordinary pronounced this interlocutor:

such depending causes; and that the same course shall be followed by the Divisions, or Lords Ordinary, in ordering and directing those proceedings, as that which has been heretofore practised in the Jury Court,"-p. 4.

Who shall choose the Division and Or. dinary in Ad. miralty causes remitted to the Jury Court.

II." And in regard to the causes remitted from the Court of Admiralty to the Jury Court, and which were depending in the said last mentioned Court at the time its jurisdiction ceased," they "Enacted and Declared, That the pursuer in the cause before the Court of Admiralty shall choose the Division, or the Lord Ordinary, before whom the case shall proceed. And that in all depending Admiralty causes prepared for trial, the pursuers, advocators, or suspenders, shall choose the Division in which such last mentioned cases shall be placed; so that the Lord President of the Division, who is to preside at the trial of the cause, if it is to be tried in Edinburgh, may be ascertained, and all proceedings necessary for bringing such causes to trial, shall be before the Division, the Lord President, or the Lord Ordinary so chosen, respectively: Provided always, that if the pursuer shall fail to make such election within ten days after being required to do so by the defender, the defender shall have the power to choose the Division or Lord Ordinary to which such cause shall belong; and all proceedings after verdict shall be in the Division, or before the Lord Ordinary, so chosen as aforesaid,”—p. 4, 5.

No. 14. MRS EUPHEMIA RUSSELL or INNES, Appellant, v. THE DUKE OF BEDFORD & OTHERS, TRUSTEES of the late DUKE of GORDON, Respondents. Process-Judges-Votes-Entail-Ameliorations-Bona fides -A cause having been heard in presence of the whole Court— memorials ordered and opinions returned by the consulted Judges, and documents thereafter discovered and transmitted to the Judges, and additional opinions returned-Held affirming judgment of the Court of Session, that the vote of a Judge who had retired from the Bench before the documents were discovered, and that of another who had been appointed after the hearing, could not be received, and that a Judge who had been a leading counsel in the cause was not bound to vote-And circumstances in which an heir of entail was held not liable for valuable meliorations made on the estate by a person whose lease he had reduced as being contrary to the entail.

The estate of Durris, situated in Kincardineshire, is held under an entail, whereby it is declared,

from them, in prejudice of the next person succeeding in the foresaid tailzie, be virtue of the foresaid substitution, nor their foresaids, in any sort."

These prohibitions are guarded with irritant and resolutive clauses. In 1793, the Earl of Peterborough, the heir of entail then in possession, entered into a transaction with the late Mr Russell, of Westfield, in order to ascertain the validity of the entail, when the Court found that the Earl had no power to sell. In August 1794, his Lordship, after laying a case before Solicitor-General Blair, afterwards Lord President, and Mr Mathew Ross, Dean of Faculty, granted a lease of the estate in favour of Mr Russell, for four 19 years, or for 76 years, and for the life of the tenant in possession at the expiration of the said period, at the reut of £1000 per annum during the first two 19 years; £1100 for the third 19 years; £1200 for the fourth period, and £1300 for the rest of the then tenant's lifetime. By the lease and a relative agreement, it was stipulated that the tenant should rebuild and repair the farm-houses and offices, construct fences, plant wood, build a mansion-house, &c.; for all which he was to be allowed a just and reasonable sum before removal, at the expiry of the lease. And in consideration of £15,107, 14s., at the same time paid by Mr Russell, the Earl passed from his right to the rent stipulated for his own lifetime, and made over to Mr Russell all arrears of rent due to him by the tenants, the furniture and effects in the mansion-house, the right to the game, and the power of filling any vacancy in the church that might occur during the Earl's life. He also became bound to sell the estate to Mr Russell, for a farther sum agreed on, if it should have been found by the House of Lords, on reviewing the judgment of the Court of Session in relation to the sale, that he had power to do so. In 1794, certain proceedings took place before the Sheriff, at the instance of the Earl and Mr Russell, in order to ascertain the condition and value of the estate. And the result of the depositions and report was said to be, that the actual rent had never exceeded £958;that the houses were ruinous, and fences and plantations neglected. Mr Russell thereafter assigned his lease and relative agreement to his brother-in-law, Mr Inues, who immediately commenced extensive improvements on the estate, which he continued for about 20 years, down to the death of the Earl of Peterborough in 1814. It was alleged that, during this period, he planted about a thousand acres of fir and forest timber-built thirty miles of stone walls— made about thirty miles of road-and erected fifty new farm-steadings and a handsome mansion-house. In consequence of these meliorations, the rental of the estate was alleged to be increased to about £5000. The Earl of Peterborough was succeeded by Baroness Mordaunt, and in her name an action of reduction of the deeds under which Mr Innes possessed the estate was immediately instituted. On 20th June, 1817, the Court, by a majority of one, found,

"That the deeds of lease, brought under challenge, were in violation of the deeds of entail of Durris, founded on, and therefore reducible; but before further answer as to the pleas now stated from the Bar, that the leases, though they cannot be sustained. in toto, may be sustained for a shorter period of duration: Ap. point the parties to prepare mutual memorials."