interest thereon, at the rate of five per cent. per annum:" That the instrument of sasine under reduction bore, that infeftment was given to the defenders, of the lands and others therein mentioned, in real security of payment to them of the sums of money, principal, interest and penalty, as specified in the said bond; and that the bond, as quoted in the instrument, bore, that security was to be granted for the said sums, not exceeding £5000, and three years' interest thereon at the rate of five per cent.; but no definite sum was mentioned, in terms of the statute.—III. That the name of one of the instrumentary witnesses, at least the Christian name " Matthew," in the testing clause, was written upon an erasure, and must be held pro non scripto; so that it was impossible to say whether the person who subscribed as a witness at the instrument was present when sasine was given, or whether the person whose name originally stood in the instru ment was not different from the one who subscribed as witness. The respondents, on the other hand, contended-I. That there was only one place in the parish of Stevenston called Dubs, and that there the person who officiated as bailie had his dwelling-place. It was denied that, at the date of the instrument, there were various persons of the name of Brown residing at Dubs.-II. That the principal sum and interest which might become due upon the cash-credit, were precisely limited and defined, in terms of the statute.— III. That" Matthew" Brown, the subscribing witness, was one of the persons present when infeftment was given; and that it was of no importance that his Christian name" Matthew" was written upon an erasure.

The Court, on 24th January 1827, after hearing counsel for the parties, and before answer,

allowed the pursuer a proof of the facts and circumstances sited in the first article of his revised condescendence, and to the defenders, a proof of the facts stated in the answer to that article."

A proof was accordingly taken. By it the respondents maintained, that it was clearly proved that James Brown, who resided at Dubs, in the parish of Stevenston, was the bailie; but the appellants contended, that the proof instructed the very reverse. The Lords of the First Division considered some of the points at issue to be attended with difficulty, aud, before advising, directed the following query to be submitted to the opinion of the Lords of the Second Division, and of the permanent Lords Ordinary, namely, Whether the omission of the Christian name of the bailie in the sasine in question, renders the said sasine null and void.'"

The following opinion was returned:

"We have considered the revised cases, and have examined the instrument of sasine in question, and are of opinion that the omission of the Christian name of the bailie in the sasine does not render the instrument null and void. The authority to infeft flows from the command of the superior, or granter of the deed, as expressed in the precept of sasine. The precept must contain a special mandate to this effect, and no general powers, however ample, will suffice; but the name of the person to whom this mandate is committed is left blank in the precept, and never filled up. Any person can execute the precept as bailie. Mr Walter Ross thus describes the manner in which this business is accomplished: The first movement is made by the party or his attorney, possessor of the charter, containing the precept. He requires the attendance of a notary-public to certify the act. They next, in virtue of the blank left in the

precept for the bailie, choose a person to fill that office, and get witnesses to attest the whole fact.'-Ross's Lectures, Vol ii, p. 178. It seems sufficient, therefore, first, for validating the act of the bailie, that the precept of sasine should be delivered to a particular person, no matter whom, different from the attorney and witnesses, and handed over by this individual, whoever he may be, to the person who acts as attorney, in presence of the witnesses, and that after the precept has been read by the attor ney, the person acting as bailie deliver the symbols; and it seems sufficient, secondly, for rendering these acts authentic, that the notary, in the instrument and docquet, attest them to have been done by a certain person officiating as bailie. The name of this person must indeed be given, and it is no doubt usual and proper to insert the Christian name, as well as surname; but this does not appear to be indispensible, if it is asserted on the face of the instrument, and attested in the docquet, that a certain person officiated as bailie, in giving seisin, and if this individual is so described that he may be known and distinguished from others. There is a case reported by Dirleton which illustrates those principles, by proving that even a mistake committed by the notary, in mentioning the name of the person who actually gave seisin as bailie, and confounding him with the attorney, will not invalidate the infeftment, if it appear from other parts of the seisin that there were actually two different persons employed, one as attorney, and the other as bailie:The Lady Cheynes being infeft in an annual rent upon a right grauted by her husband, her seisin was questioned upon these grounds→→→ 1st, That it was null, in so far as the bailie and the attorney in the seisin were one person, who could not give and take the seisin,' &c. The Lords, in respect it did appear evidently that it was a mistake of the notary that the seisin did bear the same person to be both bailie and attorney in the clause of tradition, and seeing by the first part of the seisin it was clear that there was a distinct attorney, who did present the seisin to the bailie, did therefore incline to sustain the seisin,' &c. In the present case a parole proof has been rendered competent and necessary, because the purpose of it is not to contradict the written instrument, but to explain an omission in it, and because one of the reasons of reduction libels, that the bailie is not so designed as to point out the person, or give any information who the bailie was, there being in the parish of Stevenston two places called Dubs,' &c. Now, it appears from the proof, that the person who is said to have acted as bailie, in giving infeftment, was little known by his Christian name; but that, in order, in all probability, to distinguish him from others of the same surname, who lived at no great distance from him (though not on the same farm, nor in the same parish), he was generally designated Old Brown in Dubs,' or Old Dubs,' or Brown of Dubs, in the parish of Stevenston,' or Brown in Dubs.'Defenders' proof, p. 29, D; Pursuer's proof, p. 16, C, &c. It may have been from this cause, joined to the circumstance of the notary filling up the blanks at an interval of time (and not having very perfectly fulfilled the duty, as expressed in these words in his docquet, et in notam cepi), when he only recollected the bailie by the name which was usually given to him in the country, and when the Christian name had either slipped from his memory, or had never been known to him, that the omission in question has occurred."

At advising, Lord Balgray concurred. But the Lords President, Gillies and Craigie, considered the omission of the Christian name of the bailie fatal to the instrument. This interlocutor was then pronounced, 10th December 1828:

"The Lords, upon report of Lord Newton, and having advised the mutual revised cases for the parties, and having consulted with, and considered the opinions of the Judges of the Second Division and permanent Lords Ordinary, they repel the objections to the instrument of sasine; sustain the defences, assoilzie the defenders from the conclusions of the libel at James Morton's instance, and decern."

Morton appealed to the House of Lords, urging the following reasons:-1. That it is essential to an instrument of sasine that the true naine of the

bailie by whom the sasine was delivered should be inserted and known; and the omission to insert the Christian name is as fatal to the instrument as if the entire name had been omitted.-II. That the principal and interest which might become due upon the cash account were not, in the bond and instrument of sasine in question, limited, in terms of the express provision of the statute, to a certain definite sum, specified in the security.-III. That the Christian name of one of the witnesses to the instrument of sasine, being written upon an erasure, must be held pro non scripto; and the witness not being properly named and designed, the instrument is null, in terms of the statute 1681, c. 5. The respondents answered-I. It is not essential, in point of solemnity, that the Christian name of the bailie who officiates in taking an infeftment be mentioned in the instrument, if the bailie be otherwise so described and identified as to point out the person who officiated.-II. The enactment of 54 Geo. III., c. 137, is sufficiently complied with, where the security is expressly limited, as in the present case, to a definite principal sum, with three years' interest thereon, at a stated rate per annum, and when the bond and infeftment constituting the security bear explicit reference to the statute. -III. It is not relevant to aver that part of the name of one of the witnesses is written upon an erasure in the testing clause, when it is not averred that the name, as appearing in the instrument, does not correctly denominate the witness, or that any alteration has been made upon the instrument since it was completed and sent to the record.

Lord Chancellor.-My Lords, in a case like the present, involving questions upon the law of real property in Scotland, the principles of which, in its origin, bore an intimate reseinblance, if they were not altogether the same, with those of the English law, although, by lapse of time, they have come to be so widely different, that, in many respects, they may be rather said to be opposite to one another than merely unlike, I should be very slow, indeed, to take up an opinion, even if I thought I saw ground to maintain it, which went to reverse an advised judgment of those learned persons who adorn the Scottish Bench, after having been for years the ornaments of the Scottish Bar, and practising in that branch of the profession which deals with the rights of real property. I should, I say, come with the greatest hesitation and alarm to any conclusion that might seem to differ from them; for it is needless to remark, how little we generally learn of foreign law, and foreign systems of jurisprudence, unlike our own, by merely consulting statutes which have oftentimes an interpretation affixed them by practice widely different from the apparent and plain meaning of the words of them, or by resorting to judicial decisions or the opinions of text writers, or from the incidental dicta of judges; for all those sources, (and they are the only things from which the law of any foreign country can be learned,) are all liable to be controlled and modified in practice by that which no books can teach, and which can only be learned by being, as it were, incorporated with the profession in whose hands that practice is. This consideration would always be with me a very great reason for receiving, with great reluctance, impressions contrary to the decisions of the Court from which the appeal comes, when that Court has deliberately, by a great majority of its Judges, come to a decision upon a question purely of Scottish law. But in this case, the reasons given by those learned Judges in support of the decision,

and the arguments which arise out of the case, appear to me, from the best attention I have been able to pay to it, so entirely to go along with the judgment itself, and so amply and decisively to support that judgment, that I feel a double confidence, as it were, in the proposition which I am about to submit to your Lordships, to affirm this decision; and, feeling that confidence so strong, I have the less hesitation in presuming to adopt this course, because it saves much time (the time being that of the public) for other causes, which so much crowd the list of appeals. My Lords, I have endeavoured, during the able and very learned argument of the learned gentleman who has addressed your Lordships for the appellant, to examine the cases to which he referred, and the authorities he cited, and the reasons which he urged; and I had also, before coming to this House, examined the printed cases on each side, for the purpose of saving your Lordships' time, and of lending assistance to the learned gentlemen on both sides of the Bar, in conducting their arguments; and I am not, I confess to you, enabled to discover any thing like a reason for impeaching the judgment of the Court below. The first question made, and the only question which will admit of any thing like discussion, is the omission of the Christian name of Brown, the bailie, who is called "Browu in Dubs." And first, it is said, that where the Christian name is omitted, there is a flaw in the instrument, which no evidence dehors that instrument can supply, -that it is fatal to the validity of the instrument, and that it stands as if there were no bailie who is asserted in the instrument to have given sasine. My Lords, the law of Scotland, which was originally the same with respect to the livery of sasine, as our ancient mode of conveyance, which was by infeftment, followed by livery of seisin, has, in process of time, come to be, in one or two particulars, materially different. With us, if the infeftment is good, and there is an actual livery and seisin of the land, that is sufficient. It is usual, I admit, and all our authorities so put it-they say that it is usually safe and convenient; they never go so far as to say, that it is absolutely and indispensibly necessary-that there should be a constat of that proceeding indorsed, which, when it is made, is either appended to the deed, or indorsed, by way of memorandum, upon the deed of infeftment itself; and it generally purports that seisin has been given precisely in the manner which has been 1eferred to by the learned gentleman from Scotland, in the same terms as their instrument of sasine, and precisely to the same purport. It uses the word "attorney" instead of "bailie;" but there is no substantial difference. It states, that livery was given of the land by A. B., attorney for the feoffer, to C. D., the attorney for the feoffee. That proceeding is usual, and it is convenient, but I apprehend it not to be essential. Whatever it may have been originally, in process of time it has ceased to be absolutely essential; and there may be a good infeftment of livery without it ;-but, if there be anything defective in the livery itself; for instance, if there be no livery at all, the infeftment itself would be void as an infeftment of livery, though it might endure as a covenant to stand seised to uses within the restrictions of proximity of blood, to which that mode of conveyance applies. But in Scotland, I take the law to be perfectly different. There the instrument of sasine is essential to the conveyance. There must be a sasine, otherwise the rule of the feudal law applies nulla sasina nulla terra. But there must also be a constat of that act. There must be an instrument of sasine, and that instrument of sasine is an essential part of the conveyance. The question then, is—and here we are upon a question of Scotch law purely, because I have now said the two systems of law, which were alike in their origin, have branched as under, in the progress of time-and the question we have now to consider is purely a question of Scotch law, namely, Whether the instrument of the sasine being so ne

cessary, the omission of the bailic's Christian name is, or is not a fatal defect in that instrument, making the conveyance void, as if there had been no instrument of sasine? Now, my Lords, it is agreed on all hands, that there must be clear proof upon the instrument that there was a bailie. There must be no confusion or doubt upon the instrument, taking it altogether, that the bailie and the seisor (that is to say, the person purchasing and taking the investiture of the title of the seisin) were different persons. It must appear, one way or another, upon the face of the instrument, that there was a bailie to give the sasine, and another person to take the sasine. I will not stop unnecessarily to moot the point; because the question does not arise here, whether or not a sasine would be good in which one person acted, as it were, as a common agent for both parties, and gave the seisin with one hand to the feoffee, which he took with the other hand from the feoffer. That question does not arise upon the facts of this case. But it is necessary that there should be a bailie to give the seisin, and an attorney, or some person on behalf of the purchaser, to take the seisin. Have we therefore these necessary requisites concurring in this instrument? Unquestionably, no man can read it, and doubt that there was a bailie to give, and a person to take the seisin on behalf of the feoffee. But then, it is said that "Brown in Dubs" is a patent ambiguity; and it is endeavoured to be made out to be a patent ambiguity by an ingenious and subtle, but it appears to me, an unsatisfactory and inconclusive process of reasoning. I should hold it to be about as clear a proposition, in point of law, as I ever yet heard asserted, that when an instrument mentioned one man as the individual by one name, with the addition of his place of residence, that that is on the face of it unambigu ous and certain, and that it requires you to go out of the four corners of that instrument, in order to make it appear that there were two or more Browns, or rather, that there were two or more Browns tenants, or otherwise, in Dubs. As far as appears on the face of the instrument, it is very possible (and that is sufficient to make it a latent ambi guity), that there may be no more than one Brown in Dubs, and that is quite sufficient to destroy the patent nature of the ambiguity. It requires averment, as Lord Bacon says, (who first laid down the rule, which has been followed ever since in all the Courts with respect to patent and latent ambiguity,)—it requires averment to prove that there are two Browns in Dubs; and if averment, followed by evidence, of course, shall satisfy you that there were more Browns than one in Dubs, then what at first appeared to be clear and unambiguous becomes ambiguous, and then (for that is the origin of the rule respecting patent and la tent ambiguity), when you have once raised an ambiguity by evidence, dehors the deed, then by evidence beyond that, you are entitled to take more evidence dehors the deed, for the purpose of allaying the ambiguity which that evidence dehors the deed has already raised. But until that evidence, dehors this instrument, shews that there were more Browns than one in Dubs, in my mind, it presents nothing ambigu ous, equivocal, or doubtful whatever. For this reason, I should hold it to be perfectly clear, that unless the law of Scotland has decided that it is fatal to an instrument of seisin to omit the Christian name of the bailie, on the one hand, or has decided, on the other hand, that it is perfectly immaterial to the validity of the instrument, whether the Christian name of the bailie appear or not, I say, unless the law has decided one or other of those two ways, I think it is competent to give evidence, as in the case of a latent ambiguity. But, I take it, the error which the Court has fallen into (with great deference to them, I speak it), to rest herethat they have allowed evidence dehors the deed upon this question, when the law was clear one way, namely, that it was quite immaterial to the validity of the instrument

whether the bailie's name was there or not. The party that propounded that evidence was the appellant. The other party took up the challenge, and the Court, deciding bctween them, allowed them to go into evidence on the one side and the other. But, in my view of the case, the Court, -if its authority is to be followed, which I am most willing to do, because it consists with the reason of the case, and with the principles of the Scotch law, and is unimpeached by any authority, and is wholly unimpeached by any decision-the Court ought to have held that there was no case for evidence, because the immateriality is obvious of the Christian name of the bailie. Their Lordships were pleased not so to hold, the consequence of which has been much expense, considerable protraction of these proceedings, and the laying before your Lordships' House, as the Court of last resort, that mass of anything but legal evidence, which appears to have been, in the first instance, the fruit of that unnecessary proof brought before the Court. I have stated to your Lordships one or two instances of the want of anything like legal nature or aspect in the evidence which has been produced. I have stated, that they allow particular statements of particular individuals to be given in evidence upon a question of reputation, which is not evidence by law. I have observed, that they allow one man to say what he heard another tell him, which is no evidence by law, that mau being alive and produceable as a witness; and, even if he were dead, it being no evidence, because it is too particular upon the question of reputation. I have stated, that, in another case, they go the monstrous length-for I can call it nothing less; and I observe upon this, not from the vain desire of carping at what has been done in the Court below, which is not a decorous proceeding in any Court, but I say it with the practical object, as far as my authority can have any weight with those learned persons who superintend such proceedings, of entreating their attention to a stricter enforcement of the rules of evidence below. I see, here, that one man has not only been allowed to say what another man said, not upon oath, but that he has been allowed to say what another man told him of the contents of a letter, which letter has not been produced in Court, and in fact, was not even seen by the person who swore what he heard another tell of its contents. I never have seen this exceeded, except once, when I saw, in an Irish election committee, the reputation of the neighbourhood given in evidence of the contents of a deed, whether they created an estate-tail or an estate for life. My Lords, I do hope and trust that those learned persons who superintend the taking of proof in the Court below, or, at all events, those learned Judges before whom the proof so taken by commis sioners, from time to time, may come, that they will bethink them of the dangers and fearful consequences to the lives, to the liberties, to the properties, to the most valuable rights of the King's subjects, of opening a door in judicial proceedings to hearsay evidence, which never can safely be trusted, and which, if allowed to enter into the mind of either judge or jury, in dealing with these important ques tions, must, of necessity, be very dangerous to the administration of justice. My Lords, with respect to the substance of the proof, supposing it were competent to go into it at all, I have the clearest opinion. But if I either throw out, on both sides, all that was not legal evidence, or if, following the opposite course, I pursue the course taken by the Court below, and take it all in, whether legal or not-in either way the inference is one and the same, that there is no ambiguity whatever-that there was but one single individual to whom the designation in the instrument of sasine, of " Brown in Dubs," could apply. It was said that there was another Brown in Dubs, and that part of Dubs was in Stevenston, and part in Kilwinning parish; but that statement was wholly without support or warrant from the evi

dence. Whether you regard Scot money, or road money, or.minister's stipend, or militia service as the tests of parochial boundary being tried, in every one of these ways, there is no doubt whatever, that the suggestion fails which would attempt to shew that part of Dubs is in that parish. It is equally clear, that what is there called Dubs, is not what in common parlance is called Dubs, as in the instrument of sasine, but Dubs colliery, which is quite a different thing; and then, as to what is said respecting other persons of the name, one of whom was a relation of the family, another of whom was the relation of a former Brown in Dubs, that is entirely at an end, when your Lordships come to consider the almost technical meaning of the designation Brown in Dubs." It means, in so many words, Brown, the tenant of Dubs; Dubs being a farm as contradistinguished from Dubs' colliery; and the instrument of sasine only says, that the bailie who delivered the infeftment was the tenant of Dubs farm. It is not contended that there was a change of tenant-it is not contended that there were two farms of Dubs-it is not contended that there were two tenants of Dubs. Consequently, I take it to be perfectly clear, even upon the proof itself, whether you take all the illegal evidence, or shut out all the illegal evidence, and merely go upon the legal evidence, that no ambiguity whatever, upon the whole balance of that testimony, is raised, as connected with the face of the instrument of sasine. But then it is argued, and subtilely argued, that the ambiguity is patent, because the mere want of a Christian name is in law a patent ambiguity: That not only in England but in Scotland, the Christian name is a material name, and that the want of what is material in the name, is as if there had been no name at all, and that, consequently, the leaving out John or Robert, or whatever the Christian name might be, is as if the whole instrument had been blank, so far as regards the name of the bailie. My Lords, our law is very nice and very technical in respect of Christian names, and I do not at all dispute the proposition that was laid down at the Bar upon the import of that law. But in Scotland it is wholly otherwise. There is no such nice and technical exigency with respect to the Christian name, dummodo constat de persona, sufficiently in the instrument. The case of Murray v. Gordon has been alluded to in support of this argument. Now, when I come to look at it, it appears to me to operate wholly the other way; and with respect to the four cases cited by Mr Jervis, I must say this, that they come within a description of cases as connected with his argument, which is exceedingly common at the Bar, where, in the pressure of the case, and when there is no authority of a decided case, it is very usual to produce what may rather be termed apologies for cases than cases. They cite a great number of decisions, and they admit, that those decisions are against them, but then they shew that none of the decisions apply to the case before the Court. Now, that is a very amusing way of citing cases, but it does not throw much light upon the question under discussion; because it does not follow that you have given any authority in your favour, however many cases you have shewn, and however successful you may have been in proving that not one of them rules the present question. It is a very good answer, if your adversary's counsel has used those cases, but it is no support to your own argument, and it comes, as I have said, within the description, not of any authority, but merely of an apology. Now, when I allude to Gordon v. Murray, that decision appears to me to be such, respecting the necessity of the Christian name, as cannot be got over; for, observe, it was resisted there, not upon common law, which it ought to have been, if the Scotch law were the same as the English, as to the necessity of the Christian name. It is not rested upon the English law, but upon a statute of the year 1672, chapter 21. Now, when you look to that statute, you find that it is merely directory—that

none of the King's lieges under the rank of a peer, shall sign without his Christian name, as well as his surname. Upon what penalty? Upon pain of nullity? Upon pain of making the instrument void? No such thing. Upon pain of being purished by Lion King at Arms, and his Majesty's Privy Council. Therefore, it was held to be a directory statute, not making the instrument invalid in the decision of Gordon v. Murray, in the 16,818th page of Morison's Dictionary. Taking, therefore, the whole of this first branch of the case, I certainly, upon the reasoning, and upon the arguments which have been brought forward en behalf of the appellant, see no ground whatever for doubting the propriety of this very well considered, and very deliberate judgment upon this question of pure Scotch law, and question of Scotch conveyancing, which has been brought before us from those learned Judges. With respect to the two other points of the statute of 54th of the late King, chapter 137, section 24, I take it to be quite clear, that that is entirely wide of the present objection that there is quite sufficient specification of the sum, when it is said, that "the said sums, taken together, shall not exceed the sum of L.5000, and three years' interest thereon, at the rate of five per cent." I think any words more clear and more plain could not have been employed, to express that the sum meant to be secured was three times L.250, together with the principal sum of L5000. My Lords, with respect to the third proposition, as to the name of the witness, it is said, that the attesting witness's name is written on an erasure. Your Lordships will please to con sider, that this objection as to the erasure is made, not to the subscription of the witness, but to the insertion o the witness's name ia the recital of the testing clause. But then, it is said, that though there is no erasure, whereupo the name is written below the notarial clause, yet that, be cause there is an erasure in the testing clause, the instru ment is made void. Now, I see no warrant, either from the Act of Parliament of 1655, or from any authority that ha been produced, to incline me to deviate, in the slightest par ticular, from the opinion which has been given by the learn ed Judges with respect to the third point. There was n difference, I understand, between the learned Judges upo that point.

Doctor Lushington. They were not consulted upon it. Lord Chancellor.-Therefore, it is unnecessary for me t say any more upon that point. Upon the first, I shoul not have troubled your Lordships at so great length, ha it not been that, upon the first point, there was a differenc of opinion among those Judges, and had it not appeared by taking the opinion of the consulted Judges, that it wa deemed to be a point not quite clearly settled, and ha it not also been for the great deference I feel for the lear ing and experience of the learned Judge (Lord Craigie whose opinion I differ from upon the present occasion Upon the two other points, upon which there is no diffe ence of opinion, I propose to take the course which I a ways intend to pursue. It was the ancient course, and has only been broken in upon within the period of my m mory and my experience at the Bar of your Lordship House, namely, that, when the judgment appealed from w to be affirmed, there were no reasons given, and when t judgment was to be reversed then the Court gave reason I intend, with the permission of your Lordships, never deviate from that ancient and decidedly convenient mode practice, and only to give my opinion at length when eith there has been a discrepancy in the opinions of the Cou below, and when the law may require to be looked into i the purpose of making it clear, or when there may be a versal or a remit, or some direction given as to some furth proceeding in the Court below. For these reasons, I ha no hesitation in moving your Lordships that this judgme of the Court below should be affirmed.

Ordered accordingly.

Appellant's Authorities.-Stair, III. 17, 18, 19. 2 Ersk. 3.35; 2. 3, 37. Murray v. Phillips, 22d June 1821; Act 1681, c. 5. Adam v. Drummond, 12th June 1812. Innes v. Earl of Fife, 10th March 1827.

Respondents' Authorities.-Craig, VII. 2, 2. 2 Ersk. 2, 3, 33. 2 Craig 7. Wilton v. Lady Cheynes, 24th February 1676; Mor. 14,331. Henderson v. Dalrymple, 8th March 1776; 5 Brown's Sup. 586. 2 Stair, 3, 17. Gordon v. Murray, 21st June 1765; Mor. 16,818. Act 54 Geo. III. c. 137. Lockhart v. Hamilton, 5th March 1760; Mor. 16,939. Case of Peebles, 9th December 1825; 4 Shaw & Dunlop, 209.

First Division.-Lord Ordinary, Newton.-Alexander Mundell, Appellant's Solicitor.-Richardson & Connell, Respondents' Solicitors.

4th December 1830.

No. 96.-HUGH COGAN, Appellant, v. GEORGE LYON, &c. CUMMING'S TRUSTEES, Respondents. Process Title to sue-Amendment of Libel-Supplementary Summons-Death-bed-Certain parties, describing themselves as heirs of provision of a party deceased, and narrating his settlement, from which it appeared that they were not heirs of prorision to him but to his widow, which was their true character, having raised an action of reduction of a conveyance granted by the widow on the head of death-bed-Held, affirming the judgment of the Court of Session, that the title libelled was not sufficient to Support the action: That, in the circumstances of the case, the defect could not be cured by an amendment of the libel or a supplementary action; and that the Court was entitled to object to the title, though none of the parties had.

Robert Hunter, who was proprietor of some heritable subjects in Glasgow, executed a disposition and settlement on 28th September 1811, whereby he "gave and disponed, to and in favour of Ann Cumming, my wife, in case she shall survive me, and to her disponees whomsoever; and failing the said Ann Cumming by decease before me, or failing her disponing and conveying the subjects hereby disponed, in case she does survive me, to Mary Murray, residing in Glasgow, wife of John Wilson, now soldier in the 71st regiment of foot, to the extent after-mentioned, in liferent, for her liferent use only, and to her lawful children procreated or to be procreated, equally among them, and the survivors or survivor of them, and the lawful issue, (equally among such issue,) of the deceased or deceaser of them per stirpes, in fee, the share of any of them failing without issue to be equally divided among the survivors, and the issue of any deceaser or deceasers, such issue to succeed equally and per stirpes in the present case; and to Ann Macindoe, residing in Glasgow, wife of Alexander Cogan, officer of Excise there, to the extent after-mentioned, in liferent, for her liferent use only, and to the lawful issue procreated or to be procreated of the said Ann Macindoe, equally among them, to the survivors or survivor of them, and to the lawful issue, (equally among such issue,) of the deceasers or deceaser of them, in fee, the share of any of them failing without issue to be equally divided among the survivors, and the issue of any deceaser or deceasers, such issue to succeed equally and per stirpes in the parent's place; and failing the said Mary Murray and her lawful issue; to the said Ann Macindoe, and ber lawful issue, in liferent and fee, in the terms aforesaid; and failing the said Ann Macindoe and her lawful issue, to the said Mary Murray, and her lawful issue, in liferent and fee, in the terms aforesaid; and failing the lawful issue of the said Mary Murray and Ann Macindoe, my nearest heirs and successors whomsoever, in fee; and also to and in favour of the foresaid Alexander Cogan, Ann Macindoe and John Cogan, acceptor and acceptors, and survivors and survivor, in trust, and in conjunct fee with my disponees foresaid, but for the ends and purposes only of this settlement, and as trustees for behoof of my said disponees, heritably and irredeemably, my whole lands and heritages, tacks, adjudications, and heritable claims, rights and subjects whatsoever, and generally my whole heritable estate now belonging to me, or to which I have any right, claim or title, or which shall belong to me at the time of my decease, or whereunto I may then have any right, claim or title."

The deed then specially conveyed certain heritable subjects. Mr Hunter died a few months after the execution of this deed. After his death, Ann Camming, his spouse, was infeft. On the 4th of November 1812, she executed a trust-disposition and settlement, by which she conveyed to George Lyon and others, as her trustees, her whole heritable estate. Ann Macindoe and her children, John Cogan, and Hugh Cogan the appellant, were thereby excluded from the share of the property to which they would otherways have been entitled. Mrs Cumming died on 14th December thereafter. Ann Macindoe and her children, on the ground that this deed was executed by her while labouring under the complaint of which she died, raised an action against her trustees for having it reduced. The summons called upon the defenders to answer at the instance of our lovites, Ann Macindoe, wife of Alexander Cogan, officer of Excise in Glasgow, and the said Alexander Cogan, her husband, for his interest, and John Cogan and Hugh Cogan, the lawful children of the said Ann Macindoe, and the said Alexander Cogan their father, and administrator-in-law, apparent heirs of the deceased Robert Hunter, sometime candlemaker in Glasgow, to whose great hurt and prejudice the said disposition and deed of settlement was made and granted, and thereby having good and undoubted right to call for exhibition and production thereof, and to prosecute, follow forth, and pursue the action of reduction underwritten." It also called for production of the deed, and concluded that it should be reduced, for the following

reasons:

"Primo, The foresaid disposition and deed of settlement is vitiated and erased in substantialibus, wants the names and designations of the writer and witnesses, is not duly signed or tested, and is defective in the solemnities required by law. Secundo, The foresaid disposition and deed of settlement was granted by the said Ann Cumming to the hurt and prejudice of the pursuers, and without a just, necessary, and onerous cause, whilst the said Ann Cumming was on death-bed, and labouring under the disease of which she died."

The case came before Lord Craigie; and his Lordship, on 20th November 1813, assigned a day for satisfying the production. Against this order the defenders gave in a representation, on the following grounds:

"The pursuers have not produced, nor, from their own shewing, can they have any title to insist in the action. They design themselves as heirs apparent of Robert Hunter the husband, without producing any evidence of their being entitled to that character, or even stating what relation he was to them. But what is more material, even if they were the heirs of the husband, it is impossible they can have any right or interest to reduce a disposition and settlement executed by the widow after the dissolution of the marriage."

The respondents craved the Lord Ordinary "to recall the above interlocutor, and to assoilzie the defenders, or at least to allow them to be farther heard in objection to the pursuers' title to insist in this action."

The pursuers then gave in the following amendment of the libel:

Page 4, after the words apparent heirs (add) of provision; page ead. after the words sometime candlemaker in Glasgow, (add) conform to deed of settlement executed by the said Robert Hunter, of date the 28th day of September 1811, whereby he gave, granted, alienated and disponed, with and under the burdens and declarations therein mentioned, to and in favour of Ann Cumming, his wife, in case she should survive him, and to her disponees whomsoever; and failing the said Ann Cumming by decease before him, or failing her disponing or conveying the subjects thereby disponed, in case she did survive him, to the said Mary Murray, to the extent therein mentioned, in