upon the said bond, or in the sale of the said lands and others; and for that effect, to enter into articles of roup, grant dispositions containing procuratories of resignation, assignation to the writs and evidents, and to the rents, maills, and duties, precepts of sasine, and a clause binding the complainer and his heirs in absolute warrandice of said disposition, and obliging him to corroborate and confirm the same, and to grant all other deeds and securities requisite and necessary by the laws of Scotland for rendering the sale or sales effectual, in the same manner, and as amply in every respect as the complainer could do himself; declaring that the purchasers should be in no ways concerned with the application of the price, or of any of the conditions mentioned in the said bond and disposition in security, but that the sale or sales should be equally good to them as if he himself had made them; and also declaring, that in carrying the said sale or sales into execution, it should be lawful for the said Magistrates and Councillors, or theirs aforesaid, or major part of them, to prorogate and adjourn the day of sale from time to time as they should think proper, notice being always made of such adjournment in the newspapers before mentioned, once weekly, for at least three weeks. And that the complainer bound and obliged himself and his foresaids to ratify, approve of, and confirm any sale or sales that should be made in consequence thereof, and to grant absolute and irredeemable dispositions of the lands, teinds, and others before mentioned, so to be sold to the purchaser or purchasers, their heirs and assignees, and to execute and deliver all deeds and writings that should be thought necessary for rendering their rights complete."

The Magistrates were infeft in November 1825. On the 21st of January 1829, they served upon the suspender a requisition, in terms of the bond, to pay the principal, with interest since Lammas 1828. Six months thereafter they began a series of advertisements; and they brought the subjects to public auction, on the 8th of October 1829, under articles of roup, at £8000. On that day the following minute was prepared :

“The preceding articles having been read over, and no person having appeared to offer for the within-mentioned lands, the judge of the roup hereby adjourns the sale to the 27th day of January next."

It also appeared that one of the required advertisements had been omitted. Accordingly, on the 17th of November 1829, a new series of advertisements, under the bond, without any allusion to the previous exposure, was begun in the Dumfries Courier, and, on the 21st, in the North British Advertiser.

And

on the 27th of January 1830, the lands were again exposed, without any express reference to the previous adjournment, but at the reduced price of £7000, and with certain alterations upon, and additions to the former articles; when,

66 at this stage of the business, and no person having offered the upset, James Barbour of Dunmuir, a personal creditor of the said John Richardson Dickson, stated, that it might be for the advantage of all concerned were the consent and concurrence of Mr Dickson obtained to these articles; and he expected that, if allowed time to apply to him, he could obtain such consent; and it being the opinion of a very numerous company assembled that it would be well to allow Mr Barbour a little time to make the attempt, the judge of the roup allowed half an hour for that purpose, the company to remain until he should return. Mr Barbour having returned, reported to the exposers, the judge of the roup, and a numerous company assembled, that Mr Dickson refused to concur in the preceding articles; and additional articles, with this minute, were again read over to the company; and the lands were again exposed at the upset price of £7000 Sterling, after proclaiming by the common crier of Dumfries that the sale was about to proceed; and no person having offered that sum, the exposers reduced the upset price to £6500

Sterling. Mr George Rogerson in Fourkmerkland offered said sum of £6500 Sterling ;"

and James Barbour became purchaser at £7250, the Magistrates warranting only from fact and deed. On the 27th of October 1830, the chargers obtained letters of horning, and charged on the 29th. Dickson suspended, pleading-That the copy-horning did not bear its date or warrant: That the copy-charge, which mentioned the date and signeting of the horning, did not mention the date of recording the bond: That the sale was made in spite of his offer to pay, on condition of a conveyance to the person who was to advance the money, and was without either due intimation or due advertisement: That he was not bound to ratify an illegal sale; and that, as the charge was not for payment, but only ad factum præstandum, and as the price so much exceeded the debt, no caution was required. The Lord Ordinary (2d December 1830,)

"having considered this bill, with the answers and productions, Refuses the bill: Finds expenses due, and remits the account to the Auditor to be taxed.-Note.-The respondents should have produced prints of the newspapers, and not mere attested copies of the advertisements. This is always done and required in sales under Acts of Parliament, and it seems equally proper here. Indeed, the only doubt that could arise in the case is occasioned by the singularity of the Edinburgh paper selected, where only one was mentioned in the deed; and the Lord Ordinary would have thought it necessary to report the case on this point, if it were not for the decision of the Court in the case of Lord Rosslyn and Others, June 23, 1830. He supposes the paper here referred to to be either the same which was used in that case, or one of a similar description."

The suspender reclaimed. At advising,

The Lord Justice-Clerk could see no sufficient ground for staying the diligence. There was nothing in the objections to the charge, which was in terms of the bond. Had the proceedings on the 27th of January been then treated as proceedings at an adjourned sale, the suspender's statement would have had weight. But the facts did not amount to proof of such adjourned sale. There was no minute bearing " in consequence of adjournment." The second exposure proceeded solely on previous advertisement, in terms of the bond. The first exposure must just be regarded as completely deserted in consequence of the omission. Then, as to the question of due advertisement, the North British Advertiser was peculiarly well fitted for the purpose. Very large statements, which could not be truly called advertisements, often appeared in it, so as to make it a newspaper; and it was, at the same time, specially intended for advertisements.

Lord Glenlee concurred. The advertisements in November, &c., did not bear that the sale, to take place in January, was an adjourned one.

Lord Cringletie concurred. The case might have been different, had the adjournment on the 8th of October been subsequently acted upon, by three weeks' notice in terms of the bond. But the Magistrates, finding that the first set of advertisements had been unduly made, had just begun de novo. The Advertiser was clearly a newspaper.

Lord Meadowbank agreed as to the charge, and as to the fact that the sale on the 27th of January was not an adjourned sale. But as one judgment did not establish the law, it might be proper to consider whether the minority in the case of Rosslyn were not in the right. The law required that every newspaper should pay for a stamp as such. Whenever news were to be inserted in another paper, they must appear as an advertisement, not as part of a newspaper. And if, where particular newspapers were pointed out by name for advertisement, another newspaper would not supply the want of the one required, much less could the defect be supplied by what had only the semblance of a newspaper. But, even supposing the objection to be sustained,

the question would not be disposed of; for the party might have homologated the failure of due advertisement. Although it appeared that the suspender objected at the last sale, little or nothing had been said in regard to homologation. Perhaps, the suspender would be held obliged to point out the defect in the proceedings. But the bill should be passed to try the question.

The Lord Justice-Clerk added, that, had Lord Meadowbank heard the full argument in the case of Rosslyn, he would have thought with the majority.

The Court adhered.

Chargers' Authority.-Rosslyn, 23d June 1830.

Second Division.-Lord Ordinary, Moncreiff.-Act. Gr. Bell. -Alt. Marshall.-Thomas Darling, S.S. C., and J. Hannay, W. S., Agents.-Mr Ferguson, Clerk.

OUTER HOUSE.

19th January 1831.

No. 149.-HERIOT, Pursuer, v. THOMSON, Defender. Inspection of Premises-The Lord Ordinary refused to order an inspection of premises initio litis, without the consent of the other party.

The pursuer contracted to execute the carpenter work, &c. of a house for the defender. Payment was resisted, on the ground that the work had not been sufficiently completed, and the pursuer raised the present action. At the first calling, the pursuer proposed that there should be, before answer, an inspection of the premises, and a report by a person of skill. The defender objected.

The Lord Ordinary observed, that he would not appoint an inspection initio litis, without the other party's consent. That he had once made a similar order, but had been set right by the Court.

Lord Ordinary, Medwyn.-Act. Marshall.-Alt. D. M'Neill. -M. Clerk.

JURY CAUSE.

17th December 1830.

No. 150.-ELIZABETH GAVIN, Pursuer, v. JOHN L. CRAWFORD and PETEr Montgomery, &c., Defenders. Evidence-Parole-Written-Witness-Husband and WifeForgery-General Issue-A pursuer having adduced the wife of a defender as a witness-I. Circumstances in which it was held that she was admissible.-II. That defences intended to have been lodged by one of the defenders in another and a criminal action; and III. The correspondence between one of the defenders and his law-agent, and between his brother and the other defender, were inadmissible as evidence.-IV. Opinion expressed of what could be tried under the general issue, in a reduction upon the alternative grounds of forgery and fraud.

The pursuer brought an action of reduction-improbation of a bill for £800, on the head of fraud and forgery. The bill was in the following terms :£800 Sterling. BEITH, 23d December 1823.

"Twelve months after date pay to me, or order, at the PostÖffice, Beith, sum of eight hundred pounds Sterling, value received," &c.

This document bore to be drawn by the defender, John Lindsay Crawford, and accepted by Miss Gavin, the pursuer, and then to have been blank indorsed by Crawford to Peter Montgomery, the other defender, by whom it was put into the hands of a person of the name of Smith. It was again re-conveyed to Montgomery, and was afterwards in the possession of William Jaffray, junior, trustee on Montgomery's se questrated estate. The bill was protested at the Beith

Post-Office on the 25th December 1824, and registered in the Sheriff-Court books of Ayr, on the 7th June 1825. A charge was given in May 1827, which was suspended, and the present action raised. The pursuer averred, that the signature at the bill under reduction was not genuine, and was either a forgery, or had been obtained by some false and fraudulent device, and without her true and lawful consent. In defence, Crawford denied that he knew the pursuer, or had ever drawn a bill upon her: That he once had put his name to a blank bill for Montgomery, but that the indorsation on the bill under reduction was a forgery. Montgomery maintained, that the acceptance was a genuine signature, and had been obtained with the pursuer's free consent. After the record was made up, the case was tried at Ayr, on the 10th September 1830, before Lord Cringletie. The following issue was sent to the Jury, viz. :

"Whether the bill of exchange, No. 5 of process, bearing to be dated 23d December 1823, and to be for the sum of £800 Sterling, was not accepted by the pursuer, Miss Elizabeth Gavin, residing at Beith, in the county of Ayr?"

The pursuer's counsel, in opening her case, stated, that the issue was so framed as to be capable of trying, not merely, whether the signature was genuine, but also, whether she had signed through fraud and device. Objected-The issue only involves one point. Did the pursuer, or did she not, sign the bill? Replied-The mode in which the signature was obtained, probably by imposition or compulsion, is an indispensible part of the inquiry; for if so obtained, it is not the pursuer's proper signature, being without her

consent.

Lord Cringletie thought, that if the pursuer meant to embrace the plea now maintained, there should perhaps have been two issues-one, Whether she signed the bill or not? And another, supposing she had signed, Whether it was by impetration and imposition? As the issue stood, there was only one point in it, viz. Whether the pursuer did, or did not sign the bill?

During the trial, it was proved that the pursuer was a respectable old lady, about 80 years of age, living close to the Post-Office of Beith, of undoubt. ed solvency, and in the habit of lending money on security, though not of becoming security for any one: That she had granted bills to Montgomery; and in 1821, had put her name to a blank bill stamp for him, which had been filled up with £200 Sterling; and that, on 14th December 1826, Montgomery certified under his hand-writing, that no bills, "with the exception of the said £200 one, existed between them." It was proved that Crawford had been transported for forgery by the High Court of Justiciary: That Montgomery had also forged his brother John's name to a bill; and that he, and his brother William, had, at a subsequent period, been banished beyond seas for uttering forged notes: That the bill under reduction was in Peter Montgomery's hand-writing: That the signatures of the drawer and acceptor appeared to be genuine, though Crawford's indorsation was forged. The pursuer then tendered in evidence a letter from Montgomery to his law-agent, the deceased Mr Webster. Objected-Webster was confidential agent of Montgomery-he was the same as Montgomery himself, and therefore, the letter could not be admitted as evidence against him. Answered-Though it could not be produced in the cause to which it related, yet

this being quite a different and subsequent cause, it ought to be received. The objection was repelled, and exception taken by the defender. The pursuer then proposed to produce the correspondence between Montgomery and his agents, Webster and Wylie, relative to a criminal prosecution for forgery, raised against Montgomery by the Crown regarding the bill under reduction, but which had been abandoned by the Lord Advocate. Objected-This correspondence is confidential, and regards the bill in dispute. Answered-Though objectionable as far as might concern the criminal suit, to which it related, yet it was admissible evidence in a civil cause.

Lord Cringletie.-The letters related to the very bill in question, and the party was entitled to object to their production. Objection sustained, and exception taken by the pursuer. Letters by William Montgomery (who was also banished,) regarding his brother's affairs, to John L. Crawford, were then tendered; when it was objected, there is no evidence that these were written by the authority of Peter. Answered, in græmio, They bear that character; and the proof of it will be found in the letters to Webster, relative to the foresaid criminal prosecution; and though they have not been admitted, being confidential and connected with this cause, yet they may be founded on to prove William's authority. Objection sustained, and exception taken by the pursuer. A defence, holograph of Crawford, and intended to have been lodged by him in the said criminal action, which had been abandoned by the Lord Advocate, was then proposed to be put in evidence, and rejected. The pursuer excepted. Mrs Crawford, the wife of the defender, Lindsay Crawford, was then called as a witness: Objected-Her husband has set up a defence directly opposite to that of the other defender, and it is her interest to support that defence, to the injury of Montgomery. AnsweredThis was warranted by the famous case of Brodie and Smith. Her evidence was rejected. The defenders had a verdict; and the pursuer moved for a new trial, in respect that the verdict was contrary to evidence. At advising,

Lord President observed, that the point before the Court was of a very delicate nature. It was, Whether there should be a new trial allowed or not? The bill under reduction was of a very suspicious kind. It was accepted by an old lady of most penurious habits, who was quite willing to lend her money on good, though not on bad security. It was, at a very long date, payable and protested at the Post-office. The drawer and indorser were notorious bad characters, and had been punished for forgery. But though the subscription of the acceptor does not appear to have been forged, and the bill was sought to be reduced on the head of fraud, yet there was no account given of how, when and where the circumvention was accomplished. The old woman had given bills to Montgomery for various other sums; and one had even been given blank. His Lordship thought that a new trial should be granted on the general ground, that the case had not been fully and properly brought out at the Circuit.

As to the points of law to be settled,-I. Of Mrs Crawford's evidence. The pursuer kept Crawford as a defen.. der to the very last, as much so as she did Montgomery. Could she bring forward Crawford's wife as a witness, when the first word she spoke might have made her husband as guilty as Montgomery? The verdict found the bill good; and if Gavin did not pay it, then Crawford would be liable to Montgomery. Under these circumstances, Mrs Crawford could not be adduced as a witness against her husband.-II. The paper called

intended defences, which were to have been lodged in another and a criminal cause, could not be received as evidence. They were to have been given in when he had a halter around his neck; as they were not given in, he must be held to have changed his mind.-III. The correspondence between Montgomery and Webster could not be admitted as evidence. Webster was his agent, and advised him how to conduct his cause. The correspondence, therefore, fell under that kind which was protected from its confidentiality.

here.

Lord Chief Commissioner thought the case one of great difficulty. Had justice been attained by the verdict? Was it contrary to evidence? The Court had undoubtedly a discretion in granting or refusing new trials; but a cautious line of distinction should be drawn where the verdict was against a party from mis-direction of the Judge, and from the party's defective conduct in trying his case. The Court should not relieve the pur suer by granting a new trial--it would establish a bad precedent, and be giving her an advantage of bettering her case at the second trial. It would have been very different had the ver dict been contrary to evidence. He saw nothing of that kind There were only suspicions. It would be dangerous, in these circumstances, to grant a new trial. In the case of Scott v. Wilson, 15th July 1825; Murray's Reports, III. p. 518, in the Jury Court, though the fact was different, yet a sound principle was laid down. There was apparent fraud in that case ;-it went beyond suspicion. But in the present case the bill was protested. The lady had been in the habit of giving bills to Montgomery, and had even so much confidence in him as to sign a blank bill stamp, and deliver it to him. These facts should make us pause before we grant a new trial. In the machinery of Jury trial, the cases in England have been held apposite. In 1756, in the King's Bench, Lord Mansfield tried a case, which is wonderfully similar to the present. The proof of forgery failed, and they went on to the fraud. This point, however, was not particularly stated to the jury, and Lord Mansfield granted a new trial; because, if the Judge had minutely stated the case of fraud to the Jury, the verdict might have been the other way.-I. Crawford's declaration in the intended defences could not be received as evidence.-II. The confidence of Webster could never expire. The principle was clear. It must be transferred from the one cause to the other. It fairly applied here.-III. As far as regarded Mrs Crawford's evidence, What was in the issue which went to trial? Purely the reduction of the acceptance. The bill as to the indorser was left entire. Accordingly, had Crawford not been a defender, he would have been a competent witness. Parties in bills were allowed to be witnesses, provided they had not an interest in the question, and could not turn the verdict in their own favour. Thomson and Bailley in their books had laid down the principles. Crawford might be called to reduce the acceptance, so that his evidence was contrary to bis interest, because it removed the acceptor between himself and the indorsee; whereas, if the acceptance stood, Gavin was between him and the indorsee. The verdict could not be used by Crawford for his advantage;-he must pay. If, then, the husband would be an admissible witness, so must also his wife in this case, which was one between the acceptor and the indorsee. After the defence which Crawford gave in, he was not liable in expenses. The case of Hamilton, in the Jury Court,

came within this rule.

Lord Gillies.-There was one point of difficulty not spoken to, and that was the import of the issue. He doubted if the issue let in fraud, or any thing but forgery.

Lord Chief Commissioner explained, that, after due deliberation, the Jury Court were in the practice of trying cases like the present on the general issue. In regard to the drawer or acceptor, the issue would be, Whether the party was indebted or not? This, it was understood, would try every point. In cases of reduction, like the present, it would be, Whether the acceptance was not that of the acceptor? This prevented all ground of sur prise at the trial, and was capable of trying the case of forgery, fraud, imposition, &c., and every point which was in the condescendence. Such was the understanding of the Court and of the parties.

Lord Gillies. If such were the general understanding, he would proceed to state his opinions regarding the evidence. It

appeared to his Lordship to prove fraud. Suppose a bill were produced for £1000 by a notorious thief and swindler, and the granter could not tell how it was got-Was not the holder of it bound to tell how he came by it? His Lordship thought he was as much so, as a thief, to say how he got the goods found in his possession. The bill, on which this action was raised, was not protested at the woman's house; she got no notice of it. The circumstances of the case carried to his Lordship's mind a conviction that fraud had been practised, and that the jury were wrong in finding that none had been used. As to the admissibility of Crawford's wife as a witness, it depended on the point, whether he had or had not an interest, and not on the fact of his being a party. If he had no interest, then she was admissi ble. Now, it was plain he had no interest. The question at issue was, Whether the acceptance was good or bad? The husband's indorsation remained, whether the acceptance were found valid or not, so that it was against the husband's interest that the wife was called to give evidence. Take the case of a deed in favour of A. and B., by which landed property is conveyed on death-bed. A. acknowledges, but B. denies that it was on death-bed. The issue is-Was it, or was it not granted on death-bed? If the pursuer, in a reduction of said deed, adduced the wife of A. as a witness, would your Lordships object? Undoubtedly not; for her husband had no interest. In the case before the Court, the point was- Whether the acceptance was good or not? So if, in the case of the deed, the wife were admissible, multo majus was she so in this case of the bill? His Lordship thought a new trial should be granted; and in the other points concurred with the Lord President and Lord Chief Commissioner.

Lord Craigie.-If, on the verdict in this case, it was competent to try the question of fraud, his Lordship was of opinion that the verdict was against evidence, and that there should be a new trial. No evidence had been adduced to shew how the woman came to subscribe the bill. His Lordship concurred with Lord Gillies on the other points, and as to the admissibi. lity of Crawford's wife as a witness.

Lord Balgray. Though not present at the argument on both sides of the case, yet concurred generally with the majority of their Lordships as to granting a new trial.

There was one point of difficulty in which he differed, and that was, as to the admissibility of Mrs Crawford as a witness. The law of Scotland was tender regarding the admissibility of a wife as a witness, whether for or against her husband. The pursuer had made Crawford a party; as a defender, he had an interest. There was no doubt, that as long as he continued a defender, he could not have been adduced as a witness, nor on the same principle could his wife.

The Court then pronounced this interlocutor: "The Lords set aside the verdict in this cause, and grant a new trial, upon the pursuer paying to the defender the expenses of the former trial; and the Lords find, that the Judge on the former trial did wrong in rejecting the evidence of Mrs Craw ford; but, that his Lordship did right in refusing to admit as evidence the draft or scroll of the intended defences for Crawford, and also the correspondence betwixt Webster and Peter Montgomery, and William Montgomery and Crawford; ordain the defender to give in an account," &c.

An exception was taken to the judgment of the Court.

Jury Cause, First Division.-Act. Lord Advocate (Jeffrey,) and Shaw. Alt. Solicitor-General (Cockburn).—William Patrick, W.S., William Mercer, W.S., and William Wallace, W.S., Agents.-Jury Clerk.

HOUSE OF LORDS.

Speeches taken from Mr Gurney's Short-Hand Notes.)
9th December 1830.

No. 151.-DAVID CARNEGY, Appellant, v. MARGARET SCOTT,
Respondent.

Bona Fides-Violent Profits-Circumstances in which a party, who retained possession of a farm under a lease, for several years after it was held to have expired, was found liable for violent profits, not from the date of the Sheriff's judgment de

cerning in the removal, but from the date of the judgment by the House of Lords.

The lease of the farm of Upper Dysart was exposed to sale by public roup in 1769, by the proprietor, the appellant's father. The respondent's father was the highest bidder, and he subscribed a regular tack. By that deed, Mr Carnegy set, and

"in tack and assedation lets, to the said Patrick Scott, his heirs and assignees, (such assignees being always made in manner and within the space after expressed,) all and hail the town and lands, of Mains of Meikle or Nether Dysart, with the mill lands, dovecot, parts, pendicles, &c., consisting of about 218 acres of arable land, and 78 acres of pasture or barren ground, all lying within the parish of Maryton and shire of Forfar, and that for the space of two nineteen or 38 years and crops, and after the expiration of the said two nineteen years, for all the years and crops of the lifetime of the person having right to this present tack, at the expiry of the said two nineteen years, either as heir or as assignee appointed within the space after expressed, from and after their entry to the said lands, which is hereby declared to be and begin, to the said dovecot at the term of Martiumas next; to the houses, yard, and grass at the term of Whitsunday 1770; and to the arable land at the separation of crop 1770 from the ground; reserving always to the said Thomas Carnegy an acre of land or thereby of the lands hereby set, which lies in the heart or middle of that land presently possessed by William Milne, weaver, and which the said Thomas Carnegy intends to add to the said William Milne's possession, or to set to any other person he shall think proper, and that during the whole years of this present tack: And further, the said Thomas Carnegy hereby gives and grants full power to the said Patrick Scott and his foresaid to assign this present tack, at any time before the expiration of the first 29 years thereof; but if such assignees are not made, and the assignation duly intimated to the said Thomas Carnegy, or his heirs and successors, before that time, then this tack is to fall to the heirs of the person having right to the same at the end of the said 29 years; and all assignations made of this present ta k after the lapse of the said 29 years, and although then made, if they are not duly intimated to the said Thomas Carnegy or his foresaids before that period, are hereby declared to be void and null."

Scott did not avail himself of the power of assigning; and he died in 1814, having possessed the farm for about six years more than the thirty-eight years. Upon this a summary action of removing was raised against the respondent, his daughter, and the son of a daughter, deceased, as his heirs-portioners, before the Sheriff, at the instance of the appellant, the landlord. This action was opposed by the respondent, on the ground that it was incompetent, being summary and illfounded on the merits, in respect that the lease, which was her title of possession, was, by its express terms, to subsist during all the years of her life, as being the heir of the person having right to the tack at the end of the 29 years. It was maintained by the landlord, on the other hand, that the lease had expired by the death of the respondent's father; and that she was liable to be removed in a summary manner, and without warning, as being the heir of a liferent tenant. The Sheriff, on 21st June 1814, pronounced this judg

ment:

"Having advised with the Sheriff-depute, in respect the late Patrick Scott did not assign the lease of the farm in question in terms of the tack; finds that the right of the said Patrick Scott to continue tenant after the first 29 years of the lease is not to be held forfeited or taken away by inference from ambiguous clauses in the lease, without an express declaration to that effeet; finds that Patrick Scott remained tenant after the first 29 years of the lease, and was, at the expiry of the second 19 years specified in the lease, the only person having right to the tack; finds, therefore, that the tack terminated at his death;

finds, that the defenders will be entitled to reap the crop of any fields that were sown at the time of Mr Scott's death, on their paying a proportion of the whole rents effeiring thereto; finds that the pursuer must pay a bona fide price for the labouring or sowing of any ground which has been laboured or sown since Mr Scott's death; and with these explanations, decerns in the removing, and ordains all the defenders to remove within twelve days from this date; but finds no expenses due."

The respondent advocated. The bill was refused by Lord Glenlee on 4th January 1815; but the Court, on 11th March, altered, and remitted to pass the bill. The letters having been expede, the case came before Lord Pitmilly, who pronounced this interlocutor, 11th July 1815:

"The Lord Ordinary having heard parties' procurators, and thereafter considered the process, finds that the clause in the lease, on which the advocator's claim is founded, is not applicable to the case which happened, of the original tenant not having assigned the lease within the stipulated term of 29 years from its commencement; but having survived the period of 38 years from the date of the lease, and baving himself remained in possession of the farm during his lifetime, finds that the clause of the lease referred to by the advocator provides for the continuance of the lease, after the fixed period of 33 years, during the lifetime either of an assignee who might have acquired right to the lease before the expiration of the first 29 years, and, in virtue of his assignation, might have been in possession at the end of the 38 years, or during the lifetime of the person who may have been the heir of the tenant at the end of the 29 years, and afterwards might have succeeded to the lease, and been himself in possession at the expiration of the 38 years; finds that the right of liferent adjected to the fixed period of 38 years was intended to be given to the person in possession when the liferent was to commence, and was accordingly, in one of the cases mentioned in the tack, conferred on an assignee to the lease; and finds that there is no room for holding, either that the heir of the original tenant could dispossess the tenant in possession, or that the duration of the right of the tenant in possession, after the fixed period, was to depend on the length of the life of the person who may have been presumptively his heir at the end of 29 years from the commencement of the lease; repels the reasons of advocation, and remits the cause simpliciter to the Sheriff." The respondent reclaimed. The Court, on 10th June 1817, being equally divided, they appointed the cause to remain for subsequent decision, in terms of the statute. And on 17th June, they altered the interlocutor complained of, advocated the cause, assoilzied the respondent from the conclusions of the process, and found the appellant liable in expenses. claiming petition, the Court adhered. The appellant then brought the case before the House of Lords, by whom this judgment was reversed, and the Lord Ordinary's affirmed, on 6th March 1822. The appellant then presented a petition to the Court of Session to get the judgment of the House of Lords applied— to decern in terms thereof,

On a re

and to find the respondent, and her cautioner the said George Robertson Scott, liable to the petitioner for payment of damages, violent profits, and expenses, and to repeat and pay back to the petitioner the said sum of £214, 12. 11. of expenses, with interest thereon since the 28th day of May 1819, till paid, in terms of the bond of caution granted for the same; or to grant warrant to, and ordain the Clerks of Session to deliver up to the petitioner and his agents the bond of caution granted for the same, in order that he may proceed thereafter to recover the said sum of expenses and interest, and to decern accordingly." The Lord Ordinary, on 10th July 1822, found the respondent liable in violent profits, from the date of the commencement of the action in the Sheriff Court.

This judgment was represented against, and informations were afterwards ordered. Upon advising these pleadings, the Court, on 4th December 1827, found, "That the pursuer is not entitled to violent profits from any earlier date than the 6th of March 1822, when the judg ment of the House of Lords was pronounced," &c.

Mr Carnegy appealed to the House of Lords against this interlocutor, and pleaded-I. That his claim was merely to protect himself from the loss arising from the unwarrantable possession of the farm by the respondent, by resisting the action of removing.-11. That, under the terms of the judgment of the House of Lords, specially affirming the Lord Ordinary's interlocutor, the defence of bona fides could not be maintained, so as to protect the respondent in the enjoyment of the lease from the period of her father's death; and there was no possession had by her of such a character as is necessary to found the defence of bona fides.-III. That there is no authority whatever in the law of Scotland for holding, that one interlocutor in favour of a party, obtained in an advanced period of the litigation, is sufficient to establish the plea of bona fides in a defence against the present demand. The reasons urged by the respondent, in support of the judgment appealed from, were:—I, That the respondent was in bona fide to maintain possession of the farm of Nether Dysart, under the sanc tion of the repeated judgments of the Court of Session in her favour, until those judgments were reversed by the House of Lords.-II. That the respondent's title of possession, being a lease to her father, the late "Patrick Scott and his heirs," was a good ex facie title of possession in favour of the respondent.-III. That, in the principal question which occurred be tween the parties, viz. as to the endurance of the lease, the respondent had a probabilis causa litigandi, until the final judgment of the House of Lords deciding that question against her.-IV. That the ambiguous clause in the lease, which misled the respondent's father, so as to prevent him executing a special assig nation in favour of the respondent, and which has given rise to the protracted litigation between the appellant and respondent, was framed by the appellant's father alone, being copied verbatim from the articles of roup, in the framing of which the landlord alone was concerned.-V. That the respondent has suffered severely from this ambiguity, in being deprived of the provision intended for her by her father, who had laid out the remains of his fortune in improving this farm.-VI. The appellant is at present enjoying, and has, since 1822, enjoyed, the benefit of these improvements; and it would be contrary to equity to increase this advantage (which he never would have obtained had the words of the lease been unambiguous) by supporting his claim for violent profits previous to 1822.

Lord Chancellor.-Mr Stewart, I wish you not to give yourself any trouble with respect to the first question; for I never saw a case more clear from question than the construction of this. By making "heir" a word of purchase-for that is what is really done here--they give a sort of entire vested right in the person who answers to the description of heir; whereas, after all, she was only one of the co-portioners. She did not answer that description; but, even if she had, that is so violent an absurdity, that the Lords, in reversing, set up the first judgment in a very peculiar