liferent, for her liferent use only, and to her lawful children then 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 deceasers 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 parent's place, but under the burdens therein mentioned; and, in the first place, under the real burden, lien, and declaration, that the said disposition in favour of the aforesaid Mary Murray, and her issue, should extend to the right and property of the eastmost foreshop only of the tenement thereby disponed, and the cellar annexed to that shop, and to no farther extent; and the disposition thereby granted to the pursuer, the said Ann Macindoe, and her issue, should extend to the right and property of the whole subjects except the said shop and cellar."

The representation was ordered to be answered at the Bar. And on 19th January 1814, the Lord Ordinary admitted the amendment, and assigned another day for satisfying the production. The representation was never refused. The production was satisfied by the defenders, great avizandum made, and the cause remitted to the Lord Ordinary to discuss the reasons of reduction. His Lordship appointed the pursuers, before answer, to condescend in support of their action. The pursuers averred, that the deed was executed within 41 days of Mrs Cumming's death; and that, for 12 months before that period, she had been "in a weak and infirm state of health, attended with a decline or general decay of nature, and unable to go out of her house; and that, more particularly, at the time of executing the said deed of settlement, the said Ann Cumming laboured under a bowel complaint, and was upon death-bed, or had contracted the disease of which she afterwards died."

The respondents answered, that

"it is not true that Mrs Cumming was confined to her house for twelve months previous to the date of the deed, as she was in the exercise of the powers, both of her body and mind, by going abroad unsupported, and transacting her usual business relative to her property, &c. It is not true that Ann Cumming, at the time of executing the deed, was on death-bed, or laboured under any complaint which ultimately terminated in her death. She had not even the bowel complaint specified in the condescendence; and although she lived in the second flat of a tenement, she was repeatedly down stairs after executing the settlement. She was also going through her house and attending to family matters in her usual manner, and this even on the very day on which she died. Her death happened very suddenly; and, in proof that she laboured under no complaint of any consequence in her bowels or otherwise, there was no surgeon or medical person in attendance upon her."

A proof followed. On considering the proof, the Lord Ordinary ordered memorials-and thereafter sustained the reasons of reduction. The defenders

reclaimed. And, on 29th May 1823,

"The Lords having resumed consideration of this petition, with the answers thereto, before farther procedure, appoint parties to give in mutual minutes on the question, whether the pursuer, Ann Macindoe, possesses the proper character of an heir entitled to pursue a reduction on the head of death-bed; the minutes to be interchanged in ten days, and given in in ten days thereafter, under an amand of forty shillings Sterling."

Minutes having been lodged,

"The Lords (27th May 1825,) having again resumed consideration of this petition and answers thereto, and advised the same, with the minutes for the parties, find, That the libel, both as originally laid, and as subsequently amended, being at the instance of the respondents, as apparent heirs, or apparent heirs of provision of Robert Hunter, is an incompetent proceeding for challenging, on the head of death-bed, a deed executed by Ann Cumming; and therefore dismiss the action, but find no expenses due, and

decern; reserving to the respondents to proceed in any other competent action, and to the petitioners their defences as accords."

The appellants in a reclaiming petition, prayed the Court to sustain the reasons of reduction; or to allow them to give in a minute correcting the erroneous designation, or to permit them to amend the same, or to conjoin a supplementary summons newly raised with the present action; but the Court adhered. John Cogan and Ann Macindoe having died in the course of these proceedings, Hugh Cogan appealed to the House of Lords, pleading-I. That the appellant, as the only surviving child of Ann Macindoe, was preferred to the succession of a part of the heritage of Robert Hunter, on the failure of Ann Cumming, by his deed of settlement. And the appellant, being thereby constituted an heir of provision to Ann Cumming, was entitled to set aside all deeds executed by her on deathbed to his prejudice, as such heir of provision.-II. That the summons was framed in terms sufficient to support the conclusion, that the trust-deed should be reduced ex capite lecti.-III. That, even were the plea, that the pursuers were designed in the libel the heirs of provision of Robert Hunter, and not of Ann Cumming, in itself a good defence, it could not be sustained, after the parties had joined issue on the merits, and a proof led, and three consecutive judgments pronounced against the respondents.-IV. That if the pursuers' title had been erroneously stated, they ought to have been allowed to have amended it, in terms of the prayer of their last reclaiming petition.-V. That the judgments of the Lord Ordinary were fully supported by the proof, and therefore the Court ought to have affirmed these judgments. The respondents argued I. That in their very first pleadings they had objected to the pursuers' title: That they never departed from the objection: That their representation was never disposed of: That the Court was entitled to object, though none of the parties had; and that the amendment of the libel proposed was incompetent. II. That as the appellants, under Robert Hunter's settlement, held no absolute and unqualified right to take up the title to the lands vested in Ann Cumming, they did not possess the character in virtue of which reduction of the deed could be called for; and their situation was not altered by Ann Cumming's deed having been executed in lecto.-III. That there was no evidence to instruct that Ann Cumming, at the date of the deed, was labouring under a mortal malady, from which she never recovered, and from which her death ensued.

Lord Chancellor.-My Lords, by the law of Scotland, a death-bed deed is set aside under certain restrictions, either at the instance of the heir of the maker of the deed, or him in remainder; that is to say, the heir of provision to that person. I will not say of, but to that person. A death-bed deed, or, at least, one which was deemed to be reducible, as it is called (to be set aside), on that ground, having been granted by Ann Cumming, in the execution of a kind of power which she had, under a settlement made by Robert Hunter, of giving the estate which was vested in her for life; after the termination of her estate for life, the present Appellants brought their action in the Court of Session, and stated themselves in the summons to be the heirs of Robert Hunter, which by amendment, not now contested, stands now thus:-The heirs of Robert Hunter, according to, or underconform, as it is called, under a deed which vests the life

estate in Ann Cumming, with certain powers of appointment to her, and in default of the execution of such powers, with remainder to those parties who state themselves, nevertheless, to be the heirs, not of Ann Cumming, but of Robert Hunter. The short question this appeal brings before the House, is this,---and it is a question wholly of Scotch law pleading, and Scotch law practice---Whether or not the pursuer, has a sufficient title to pursue an action for the reduction of a deed on death-bed, seeing that in his summons he states himself to be the heir of A, in which capacity he would have no right to pursue the reduction, but who, by amendment to that, has afterwards been permitted to state himself not truly and absolutely to be the heir of A, but the heir of A. under a deed, which being set forth in the summons, shews him not to be the heir of provision of A., but the heir of provision to B ; and it being admitted that, in his capacity of heir of provision to B, he might have pursued this action of reduction to set B.'s death-bed deed aside? The simple question which this action brought before the Court, and on which alone the Court has adjudged, is, Whether this summons sets forth a sufficient title to pursue; or rather, Whether it does not, on the face of it, introduce such a title as excludes the party setting it forth from pursuing the reduction? That the decisions of the Court below should ever be held in a Court of Appeal to be unimpeccable, as it has been called by the learned counsel for the appellant who has argued this caseI can say no more, than, with his usual ingenuity and talent— that the judgment brought into question by the appeal should be held to be an overruling authority, and decisive in a Court of appeal, is a proposition really too absurd and too contradictory to be for a moment entertained. But, my Lords, I certainly should feel disposed to pause, even where I did not myself see the best and soundest reasons supporting the decision in the Court below, when, on a pure point of practice and the formality of pleading in that Court, I find the weight of six most learned Judges there, in one voice, deciding that the objection to the pursuer's title is fatal, and when of those six there is only one, who, after a considerable period given for deliberation and review of his opinion, comes round to an opposite view, and stands, therefore, in direct opposition, on this point, to the whole of his brethren. The principles which have been alluded to, (rather than very clearly defined,) on which the Scotch Courts hold this very great strictness, are those which are chiefly to guide us, and to furnish the rule enabling us to decide between the opinion adopted by Lord Alloway, and that of the five other learned Judges, whose authority I take, undoubtedly, to be very eminent on such a question. I would refer your Lordships, also, to the principles which have been stated, and, as far as they go, borne out by one or two of the cases, particularly the old case of the servitude, and which I can by no means agree with the counsel for the appellant in agreeing to be wholly inapplicable. It is relied on by Lord Glenlee as bearing mainly; and it does not merely say that a person, having a right of servitude which is an easement--a right of way--has no right to support an action for a partition of common--that is not the real view of the case; but the case is this, that it being found, on the face of the libel, that he had so set forth a servitude in himself, and nothing more, the Court set aside all the proceedings that had taken place, the libel, the condescendence, the answer, and the proof which had been made in the cause all those proceedings were set aside at the eleventh hour, because the libel only set forth the servitude. Upon these grounds, I incline to the opinion of my Lord Glenlee, (as far as I can be supposed to have an opinion on a point of such a strict and technical nature,) adverting to the extreme strictness which the rules of pleading require in setting forth a pursuer's title, taking into consideration the effect of the doctrine of death-bed, and that it is known to all Scotch lawyers, as next to questions of conveyanc

ing, in respect of entailed property under the Act of 1685, the one on which the greatest strictness, and the most technical nicety are required-taking this into account, and not laying out of my view the answer given to the difficulty by the learned counsel for the respondents, respecting the way in which this deed is inserted, by amendment in the summons, so as to become, as it were, not an averment, or a portion of the averment of the pursuer's title, but rather a part of the evidence referred to by him in support of it-that title stands upon the face of the summons by plain distinct averment; for there is an averment in this case that the pursuer pursues as the heir of Robert Hunter, and not as the heir of provision of Ann Cumming, the maker of the deed. Taking these things into account, and considering, above all, the peculiar nature of this question but even had I not seen my way so clearly as I think I do, I should have been most slow to urge your Lordships to reverse, upon such a point, a decision so come to; still more should I be slow to urge your Lordships to reverse, when I think I do see my way to a conclusion conformable to that at which the Court below arrived-I shall only state, that, if I were now to advise your Lordships, I should humbly submit to you to affirm this judgment. I shall only further submit the reason why I would abstain, for the present, from urging you to that course. Much of the weight due to the decision of the Court below must needs depend upon their having had a just, accurate, and correct view of all the facts before them when they pronounced that judgment; and I should have no doubt whatever of the deference due to that authority, if I saw distinctly, from the view taken by the Judges who gave their opinion, the greatest number of them against the pursuer's title, in respect of the manner in which the summons set forth his claim, that they had clearly and distinctly before them the amendment of the summons. There are one or two expressions used by the Judges which would lead me to suspect they had confounded the amendment of the sum-` mons with the supplementary summons, one of them distinctly speaking of the amendment as to be rejected in that stage of the cause. I think that can only have meant the supplementary summons, for the amended summons had been received. These matters seem to me to require that I should, before submitting to your Lordships the proposi tion for affirming this judgment, carefully look through the opinions of the Judges, and look, so far as I shall be able, to the forms and styles, as they are called, the mode in which the summons of reduction, under the head of death-bed, is usually conceived in the Court of Session. I should like, for my own satisfaction, to see them, and I should like, for my own satisfaction, to look more clearly and deliberately through the opinions of the Judges which now lie before us; as, in all probability, the affirmance of this decision will be that which I shall advise your Lordships to adopt. I cannot help again expressing my deep regret, that this will lead to so unsatisfactory a result for both parties, and I may say, for the cause of justice; for I am afraid the inevitable consequence of affirming the judgment will be, that it must

go

down to be argued again upon the merits, this being only a preliminary objection, or in the nature of a preliminary objection, in point of form. My Lords, I have looked in the case of Harford v. Harvey, in this House, reported in the second volume of Bligh, and I find it by no means applies. It is not at all a precedent for authorising this House to do so extraordinary a thing as to constitute itself a court of original jurisdiction in a case brought by appeal, for that was an objection to a part of the evidence; but there remained a sufficient part of the evidence, which was unexceptionable, to support the judgment to which the House came; and the Lord Chancellor, in moving the judgment of the House, expressly states, that the ground on which he proceeded was, there being evidence in the cause sufficient to support the judgment which he was about pronouncing, even if he rejected all the evidence which was

objected to. My Lords, if both parties should, on further consideration, agree, as by consent, to save the additional expense and delay of having the cause sent back to the Court from which it came, after a judgment on the preliminary objection shall have been given, then, undoubtedly, there can be no objection to this House doing that which it would wish above all things to do-rectifying the great defect in the cause as it now stands. It is gratifying to know, that, of these objections, we shall hear nothing in respect of cases since the late Jury Act; but in this case, the Court proceeded according to the ordinary course of practice which had been adopted for ages, and did only that which was sanctioned by that practice. It is a very happy circumstance for the suitors of that part of the kingdom, that the better mode of trial by Jury will prevent those circumstances recurring. These are the grounds, in reference not only to the forms of your House, but to the authority of the very learned persons who decided this case, that I should beg to propose to your Lordships that the further consideration of this case be adjourned; and I shall propose to move your Lordships to proceed to judgment on Saturday morning, proposing to sit on that morning on Scotch appeals.

Lord Chancellor.-My Lords, this case, which was argued a few days ago, is one on which, as I have already stated, there are several matters of considerable nicety touching the Scotch forms of pleading, and some with respect to the general principles of law which must govern the case. There is no material discrepancy with respect to the law of deathbed, but with respect to the particular form of pleadings, where there is a question of fact and of law, there was the greatest possible difference; and although I entertained, myself, a pretty confident opinion what the result of the case ought to be, I was desirous of ascertaining whether the learned Judges who pronounced the judgment had taken a correct view of the facts, in consequence, as your Lordships will recollect, of some of the learned Judges using the expression "amended summons," when it is clear the amended summons made no real difference in the form of the pleadings, and it rather appeared to me, that it was the supplemental summons which was adverted to, the amended summons baving been admitted. I wished to look into the case a little further to remove that doubt. Further inquiry has removed my doubt; and I am now about to submit to your Lordships, as the result of the attention I have been able to pay to the case, my opinion, that this judgment ought to be affirmed. I have stated on a former day, that it is not my intention, in moving your Lordships to affirm the judgments of the Court of Session, generally speaking, to offer reasons for that proposition. Upon this occasion, I shall simply add to that which I stated before, that it appears to be a question simply and purely of Scotch law and Scotch pleading; that I find no reason to doubt, upon the authorities, the soundness of the judgment in this case, as involving a question of Scotch law, which the learned Judges have pronounced. One learned Judge, Lord Alloway, gave a distinct opinion as to the technical niceties of the case; his Lordship afterwards appears to have varied, if not changed his opinion. The other learned Judges held to the opinion they had first pronounced. It is a very great nicety no doubt. It is a nicety which we do not certainly, by our rules of pleading, admit at all, at least by our rules of civil pleading, though your Lordships know very well, that, in the criminal proceedings in this country, there are some rules so imperative and of such exigency on parties pleading that nothing equivalent can supply the defect of words. I refer to cases of felony and murder. But it appears that, in Scotland, actions for reduction of deeds executed on deathbed being very little favoured, the Courts have held, that, in setting forth the ground upon which the pursuer seeks to reduce such a deed, he must set forth distinctly the right in which he sues. It appears that this party set himself forth

originally as the heir of provision to Robert Hunter,—the words heir of provision to Robert Hunter in the amended summons being stated to be conform to a particular deed, but the pursuer not being the heir of provision to Robert Hunter, but the heir of provision to Ann Cumming, the maker of the deed, he did not sue-describe himself as, and insist, as he could not, in this action, on his right of heir of provision to the granter of the deed, Ann Cumming. According to the rules of Scotch pleading, a defect in the title of heir cannot be cured by equivalent words, and can still less be amended in a later stage of the case, by a supplemental summons, which is not admitted at all, and which, in fact, creates a new action. We have niceties of pleading, as your Lordships well know, in our civil pleadings. In a writ of right, the person must set himself forth correctly in the title in which he demands, and nothing can supply a defect of that nature; but whether that amounts to so great a nicety as there is in the Scotch Courts in such a case as this, is a question on which I will not take up your Lordships' time, nor is it necessary to occupy your Lordships' time upon it. I cannot help, upon the present occasion, expressing what has often occurred to me as counsel before your Lordships, and which I have very often considered in a legislative capacity, in reference to the amendment of our laws, both in Scotland and in England, the peculiar hardship under which your Lordships are placedunder which the Scotch courts are placed-under which the Scotch law and the people of the country of Scotland are placed, by the want of consistency of professional men, and of learned Judges cognisant of, and from long habit daily conversant with the law, particularly where there occur the technical niceties of the law of that part of the United Kingdom. Your Lordships are aware how much better we are off in England in reference to English law questions, where the learned Judges differ, and where writs of error are brought, involving points in which the people of this country are interested. In respect of decisions of the Court on those points, your Lordships, wherever any difficulty oc-. curs, wherever any nice questions, if such a question is presented, would have the assistance of the twelve Judges, and acting as the assessors of your Lordships, and whose opinion is hardly ever deviated from, though, undoubtedly, it is not binding on this House. Unfortunately no mode is presented in which we can have any such assistance on Scotch law questions, and this leads those who advise your Lordships to be extremely slow on technical questions-on reasoning from technical rules of the law of Scotland, and slow they ought to be, in the situation in which I describe them to be-slow they ought to be in calling upon your Lordships to reverse decisions deliberately come to by those most conversant, most constantly conversant, with those points of pleading and of technicality in the Scotch law. I would humbly move your Lordships, without going farther into this case, that this judgment be affirmed. For this case I should propose no costs. Ordered accordingly.

Appellant's Authorities.-(1.) Regiam Magistatem; Skene's Translation, B. II. c. 18. Stair, III. 4, 33. Bankton, III. 5, 2. Erskine, III. 8. 38; III. 8, 100. (3.) Ersk. IV 1, 66-7. Respondents' Authorities.-Case of Cairnmuir; Mor. 2472.Peacock v. Glen, 24th November 1821. Jackson and Hus-band, 9th December 1825; Shaw. A. R. Macdonell, 20th January 1826. Kerr v. Baird, 10th July 1827; Shaw. Maule. v. Maule, 4th March 1817. Webster v. Langlands, 1st March Act of Sederunt, 7th February 1810. (2.) Buchanan v. Buchanan, August 1758; M. 3285. Bertram v. Weir, 8th February 1706; M. 3258. Pringle v. Pringle, 28th February 1768; M. 3287.

1823.

Second Division.-Lord Pitmilly, Ordinary.-John Butt, Appellant's Solicitor.-Andrew M'Crae, Respondents' Solicitor.

Printed by M. ANDERSON, Law-Printer.

COURT OF SESSION.

INNER-HOUSE.

10th December 1830.

No. 97.-MISS ELIZA M'LARTY, Pursuer, v. IVOR BORLAND,

Defender.

Competency-Proof-Haver-Criminal Action-Opinion of the Court, that it is incompetent to examine as a haver, a party accused of abstracting process papers during the dependence of a criminal action against the party for the same offence.

Mr Livingstone, W.S. having borrowed up from the Clerk, and granted his receipt for the summons and productions in this process; and having failed to return them, the pursuer took out a caption against him, on which Mr Livingstone presented a bill of suspension, in which he stated that Mrs M- had obtained, and was in possession of the said steps of process, and refused to deliver them up. He therefore moved the Lord Ordinary to grant commission and diligence at his (Mr Livingstone's) instance, to recover the said writs, and to examine the havers to be cited under the diligence. Mrs M- and her hus-. band were cited as havers, but before they appeared, they were served with a criminal process at the instance of the procurator-fiscal, in regard to the abstraction of the said writs. On appearing before the Commissioner, to depone as a haver, Mrs M stated,

"That Mr Livingstone, on whose application, and at whose instance she is now called to be examined as an alleged haver, of a process for which his receipt stands, and which he appears to have lost, has lately had recourse to other proceedings against her: That a criminal charge, relative to the said process, has been preferred against her and her husband, who are there charged with having criminally obtained possession of, and concealed or destroyed the said process; and upon that criminal charge they have been committed for trial and held to bail : That these criminal proceedings have been instituted in name of the procurator-fiscal, upon the information, and at the instigation of the said Mr Livingstone, and are supported mainly or solely by his statements: That while these criminal proceedings are depending over her, she respectfully declines to submit to any examination at Mr Livingstone's instance on the same sub.. ject-matter."

Mr M----, when called upon to depone, stated the same objection; and the Commissioner having certified the proceedings to the Lord Ordinary, his Lordship reported them to the Inner-House. At advising, it was maintained for Mr Livingstone, that although it might not be legal to extort from Mr and Mrs M, judicial declarations which might be afterwards used against them at the criminal trial, it was still competent to examine them as havers: That the competency of such a mode of examination was evident, by the provisions of the bankrupt act, and from the case of Moffat. On the other hand, it was argued for Mr and Mrs M, That it was illegal and incompetent to examine them during the criminal proceedings.-See cases of Maciver v. Macallum. Dick v. Aytoun, &c.; Tait, p. 304. At the same time, if the Court thought it competent, Mr M expressed his readiness to be examined.

Lord Balgray thought the case one of some difficulty, in the shape in which it was presented. This Court was the custodier Vol. III.

Conducted by {RYMER, W.S., and others, Members of the Bar.

W. DICKSON, W. H. DUNBAR, Advocates, JOHN

of all processes depending before it, and with it lay the jurisdiction in matters connected with these processes. The proper mode of obtaining redress, therefore, in such cases as the present, was by petition and complaint to the Court; and the Acts of Sederunt would furnish many instances where parties, accused of taking away process papers, were examined at their Lordships' table. At present, there was no evidence of the abstraction, except the receipt; and it would therefore be necessary, in the first place, to examine Mr Livingstone's clerks; and then, if necessary, proceed to examine Mrs M- here. In the circum-stances in which she was placed, she was not bound to depone, as a haver. Suppose she burned them, could she be obliged to admit that, with a criminal prosecution hanging over her.

Lord Gillies had formed a decided opinion that Mrs Mcould not be examined. It was one of the most sacred principles of our law, that no man was bound to criminate himself. The cases to which Lord Balgray had alluded, were not cases where crime was alleged, but merely contempt of Court or delinquency, But here a criminal process was actually commenced. And, could Mrs M be called upon to make ad.. missions in this examination as a haver, which could be immediately used against her in the criminal suit? Surely not; and as to Mr M- involved as his interest was with his wife's, he could not be legally examined, even with his own consent. Lord President concurred, and considered it a case which did not fall within the jurisdiction of the Sheriff.

"

Lord Craigie concurred.

The Court were therefore of opinion, that the examination of Mr and Mrs M- as havers, during the dependence of the criminal action, was incompetent and illegal.

First Division.-Lord Ordinary, Newton.-Act. Buchanan. -Alt. D. M'Neill.-Hugh Macqueen, W.S., Agent for Me Livingstone.-George Logan, W. S., Agent for Mrs M

10th December 1830.

No, 98.-A. v. B.

Proof-Oath on Reference-An oath on reference, that a sum sued for has been all advanced, though neither all, nor any of it on the day libelled; and that it was still due, having been held affirs mative of the libel-Found, that the pursuer is not entitled to travel out of the oath, in order to explain it by the guarantee under which the advance had been made.

For a notice of this case, see Vol. II. p. 411, 26th May 1830, on which date the Lord Ordinary reported it to, and obtained the opinions of the Court. He decided accordingly. Both parties reclaimed-the defender pleading, That the Court were entitled to look beyond the oath, to a guarantee under which the sum was alleged to have been advanced, in order to see if the advance corresponded with the guarantee ; as the belief of the pursuer, that he had advanced un der it, was of no avail, and as resting-owing would not suffice without proof by whom the debt was resting-owing.

The Court refused both notes.

Second Division.-Lord Ordinary, Medwyn.-Act. Keay.→ Alt. Jameson, J. M'Donald.

11th December 1830.

No. 99. GEORGE PENTLAND, Pursuer, v. THE ROYAL EXCHANGE ASSURANCE COMPANY & OTHERS, Defenders. Competency-Multiplepoinding -- Rents - Res Judicata-A landlord, called by his creditor in an action of maills and duties against his tenant, and acquiescing in a decree in favour of the creditor for that year's rent-Held not barred by that decree from raising a multiplepoinding in name of the tenant for distribution of the next year's rent, although the creditor has the No.. VIII.

same claim over it-Opinion expressed, that it was incompetent to bring a multiplepoinding in relation to rents "to become due." In 1822, Pentland took from Lord and Lady Elibank a lease, for 31 years, of the lands of Bachilton, at a rent of £779, 2s., payable at Lammas yearly. On 29th December 1829, a multiplepoinding was raised in Pentland's name against Patrick Campbell (the real raiser), as trustee for Lord and Lady Elibank, and the Exchange Assurance Company, concluding that the pursuer (Pentland) should be found and declared liable in once and single payment of the rents due, and to become due by him during the lease, to the person or persons having the best right thereto. Pentland objected to the competency of the action-I. In respect the rents "to become due" could neither be condescended on, consigned, nor divisible by the Court during the currency of a lease, twentytwo years of which were to run, the nominal amount of rent payable yearly being subject to fluctuating deductions. II. With regard to the rents due for the years 1827 and 1828, the Exchange Assurance Company had, some years ago, raised an action of maills and duties against the nominal pursuer relative to them, in which process Lord Mackenzie, Ordinary, pronounced this interlocutor (7th February 1825),

"Finds that the pursuers have right to insist in this action against the defender, to the effect of recovering rents sufficient to enable them to make payment of the annuity, in security of which they hold the trust-disposition from Lady Elibank and her husband, but not in hoc statu, to the effect of enabling them to pay over any surplus to Lady Elibank or her husband; and, therefore, ordains the pursuers to give in a condescendence of the amount of the rent necessary for enabling them to pay the said annuity."

That by this interlocutor (which became final) it was found that Lord and Lady Elibank were not entitled to claim any part of the rent from the nominal pursuer, and consequently no other person in their That thereafter (16th December 1829), the Lord Ordinary, in the same process in which the real raiser was also a party,

name.

"decerned against the defender, George Pentland, for payment to the pursuers of the sum of £779, 2s., being the amount of the rent of crop 1827, and allows an interim-decree to go out and be extracted accordingly."

That this interlocutor was adhered to by the Inner House (5th December 1829,) in these terms:

"In respect that, on the part of Patrick Campbell, trustee for Lord and Lady Elibank, it has been expressly admitted at the Bar, by his counsel, that the pursuers in this process are preferable to him in their claim to the rents decerned for by the interlocutor of the Lord Ordinary under review; adhere to that interlocutor; refuse the prayer of the note."

That these judgments, which have been acquiesced in by the real raiser (although appealed to the House of Lords by the nominal raiser), preclude the possibility of a competition between the real raiser and the Exchange Assurance Company, the only pretended claimants upon the fund. The real raiser (Patrick Campbell) then lodged a minute, restricting his claim to the rents actually due. The Lord Ordinary (2d June 1830,) pronounced this interlocutor :—

"Having heard eounsel for the parties; Sustains the foregoing minute of restriction of the libel; finds the raiser of the multiplepoinding liable only in once and single payment; appoints him, betwixt and Tuesday next, to give in a condescen

dence of the funds in his hands; and the defenders, within four. teen days thereafter, to lodge condescendences of their claims, with pleas in law, in terms of the Act of Sederunt."

The nominal pursuer reclaimed

Lord Balgray said, the only question related to the competency of the multiplepoinding. Now, looking at the date of the summons, December 1829, the present action was clearly relevant for the rent due at the previous Lammas. The judgment of 5th December 1829, was only final as to the rent due for 1827.

Lord Gillies also considered the action competent in relation to the rent due for 1828. At the same time, a multiplepoinding was quite incompetent for rents not due. He could see no date upon the minute of restriction-such omissions were most common, but most inexcuseable; and the Court would do well to check such irregularities, by fining the parties.

The Court adhered.

First Division.-Lord Ordinary, Meadowbank.-Act. Hope, J. W. Dickson.-Alt. Buchanan.-J. J. Fraser, W.S., Pursuer's Agent.-John Young, S. S. C. and Walter Dickson, W.S., Defenders' Agents.-Sir W. Scott, Clerk.

11th December 1830.

No. 100.-WILLIAM KEY, &c. Suspenders, v. STIRLING and DRYMEN BRIDGE ROAD TRUSTEES, Respondents. Iuterdict-Suspension-Competency-Road Acts-Opinions expressed in favour of the competency of a suspension and interdict, from a decision of the Justices under the Acts 4 Geo. IV. c. 47, 8 Geo. IV. c. 96, without any intermediate appeal to the Quarter-Sessions, when it appeared that the Justices had exceeded the powers committed to them by the said Acts.

In August 1830, the suspenders presented a bill of suspension and interdict against a threatened suppression of a piece of road by the respondents, under an Act of Parliament, 16th January 1827, 8th Geo. IV. c. 96, empowering them to make certain new roads, and to supply old ones, in the neighbourhood of Kippen, and containing the following clause :

"That, when the new line of road from Westkerse or Redhall to Broich Bridge or to Arngibbon, shall be completed and open for the public, in lieu and place of the present old road, such old road from the east march of the Gargunnock lands to Courthill, and from the farm of Beild to the wester march of the farm of Crowtree, and from Burntown to the wester road leading from the said present old road to Musichall, will be rendered useless to the public; and, as the new road and the old road will both pass through the grounds of the same proprietors, be it enacted, that the ground occupied by the old road shall be allotted respectively to the proprietors through whose grounds it passes, and its value deducted from the value of the grounds to be occupied by the new road; and the said old road shall be shut up as useless in all time thereafter; any thing contained in any act or acts of Parliament to the contrary notwithstanding: Provided always, that before the said old road from Burntown to the head of Glentirran Loan shall be shut up, a road of communication shall be opened by the proprietor of the estate of Boquhan from Burntown to the Glen road; and before the said old road from the head of Glentirran Loan to the Musichall road shall be shut up, another road of communication shall be opened by the said proprietor from, or near from, Glentirran Mills to the wester road aforesaid."

The suspension set forth-That while the new lines of road had been opened, no communication had been opened from, or near from, Glentirran Mills to the Musichall road, or any part of the wester road, although there was an access by a former and very circuitous route, which, with certain alterations, was proposed as a substitute for a direct new communica