in respect the record has been closed, so that no farther production can be made by the pursuer, to render this action more competent, recals the interlocutor complained of, assoilzies the defender, and decerns, but finds no expenses due to either party; reserving to the pursuer to bring a new action against the defender, when he finds himself in a situation so to do."

Low advocated-having paid his half of the bondpleading, That as the parties were bound to relieve each other, he was entitled, even before paying his half, to call on the respondent for payment of his: That, as he had paid his half, he could not be called on to pay more, in order to maintain his action: That he was proved to have paid more than his half, leaving a balance unpaid; and that he was entitled to further proof. The respondent pleaded-That while the bond obliged the parties equally, it provided no extraordinary relief inter se; and that the advocator having, at the date of the action, neither paid nor been distressed, had no claim of relief in law or equity.

"The Lord Ordinary (20th November 1830,) having considered the closed record, and heard counsel thereon; In respect the advocator and respondent stand in the relation of co-cautioners to each other, and that the advocator does not aver that he has paid any part of the sum of which he claims to be relieved by the respondent, repels the reasons of advocation, remits simpliciter to the Sheriff, and decerns; but finds no expenses due."

The advocator reclaimed, pleading-That, even if Innes had been vergens ad inopiam merely, he himself could have insisted for relief. The respondent pleaded-That the receiving of urgent letters was neither payment nor distress, without which there could be no recourse against a co-cautioner.

Lord Glenlee thought Low entitled to demand that Farquharson should pay his half, when a demand was made, and diligence was threatened for the whole.

Lor! Cringletie had no doubt that such distress for the whole entitled to demand the half-that both might go together and make payment each of his share. The advocator was a distressed cautioner, because he could not pay the whole, just as truly as if he had paid it all.

The Lord Justice. Clerk thought the distress and the risk proved-and the first conclusion, viz. for payment to the Bank, cor

rect.

The Court

"Alter the interlocutor of the Lord Ordinary, sustain the reasons of advocation, advocate the cause, and decern in terms of the first conclusion of the original summons before the Sheriff: Find expenses due, allow an account," &c.

Second Division.-Lord Ordinary Medwyn.-Act. Keay.All. Skene.-C. F. Davidson, W.S., and Dallas and Innes, W.S., Agents.-Mr Rolland, Clerk.

9th February 1831.

No. 219.-EARL of STIRLING, Pursuer, v. KING'S ADVOCATE, &c Defenders.

Proving of Tenor-Designation of Pursuer-Peer-Held competent for the claimant of a dormant peerage, standing on the Union roll, who had voted as a Peer without protest, to assume the title, in pursuing a proving of the tenor, in order to establish his claim to that title.

This proving of the tenor was previously before the Court, March 4, 1830, (Scott. Jur. II. 298,) when the Court dismissed the action, as appears in the report of this case already given. A fresh summons was raised by the pursuer, still assuming to himself the title of Earl of Stirling, &c. At advising, (25th Ja

nuary 1831,) the pursuer stated-That he had voted as a Peer in 1825: That the Earl of Wemyss had been acknowledged as Earl before he had established his right.

Lord Cringletie thought that the shape of the case was difficult-for the pursuer would not be Earl, unless he proved the tenor; yet, in that very action, he called himself Eari.

The Lord Justice-Clerk thought that the Court should be cautious in disposing of the question. For although it originally appeared that the objection to the action, from the assumption of the title, was insurmountable, in consequence of the recent resolution of the House of Lords in 1825, that none but the heirs of the body of the last occupier of a title on the Union roll could vote;-yet, considering that the pursuer had actually voted in 1825-had been sworn in by the Lord Chancellor had voted without any protest, (because the mere observation by a Peer was not equivalent to protest,) it was pretty evident that the regulation was held to apply, not to dormant peerages on the Union roll, as this was, but only to the succession of peerages presently enjoyed.

The Court consulted the other Division; and, after having done so, sustained the instance, and sent the case to the roll.

Second Division.-Act. P. Robertson, A. Anderson.-Alt. Lord Advocate.-E. Lockhart, W.S., and Edward M Millan, S. S.C., Agents.-Mr Thomson, Clerk.

10th February 1831.

No. 220.-JOHN REDDIE, Pursuer, v. DAVID SYME, Defender. Relevancy-Sale-Actio Quanti Minoris-Fraud-Disposition -Damages-Circumstances in which a purchaser of lands, who had accepted of a disposition, and paid the price-Held barred from going back upon the missives of sale, and the communings and correspondence of the parties, to prove that he had been deceived and misled by the seller, who had represented that the lands were agreed to be let under a certain lease, whereas the purchaser had discovered, after the disposition was granted and the price paid, that the lands were let under a totally different lease, much less advantageous to the landlord;—and an action of damages at the instance of the purchaser dismissed as irrelevant.

The pursuer brought an action against the defender, setting forth-That in 1828, the defender, as heir cum beneficio inventarii of his late father, and as trustee for his father's creditors, had advertised for sale a long narrow tract of muir ground, called Cuthil Muir, or Southfield of Cuthil, consisting of about 93 Scots acres, and bounding with the pursuer's lands of Cuthil to the extent of about half a mile: That the pursuer, who had a taste for planting and improving operations, became desirous to purchase this piece of ground, for the purpose of planting and improving the same-altering the line of road to the pursuer's lands of Cuthil, which at present runs by a very awkward and circuitous line, for a nearer and more level line-opening up a communication with the great north road to the west-feuing out portions of the land, which bounds with the public road, for building cottages, and interspersing the whole with clumps of planting, which, with the benefit of drains and enclosures, would at once render such parts of the land as were worth cultivation more valuable, and afford shelter to the pursuer's other lands of Cuthil, as well as yield an adequate return from the cuttings of the wood, &c. to the proprietor: That with these views, the pursuer, accompanied by Mr Wood, landvaluator, and Mr Williamson, writer, waited on Mr

Wardlaw, the agent for the defender, on 25th July 1828, and made an offer of £1000 for the lands, explaining at sametime that this offer was made on the understanding that the lands were not under lease, as the pursuer's object was to plant and improve the same: That Mr Wardlaw stated, that the lands were agreed to be let, but that there was full power reserved to the landlord, by the lease, to resume such portions of the ground as he might think proper, for the purposes above-mentioned; and in evidence of this statement, Mr Wardlaw produced and read a draft of a lease, which he said had been agreed upon between the landlord and Daniel Campbell, letting the lands to Campbell for 19 years after Martinmas 1824, and which lease contained, inter alia, the following clause: Reserving power to the said David Syme, his heirs and successors, to take off ground for planting trees within the farm, at such places as he or they may judge proper, and to search for, and work coal, lime, or metals or minerals of any description, to make roads, and do every other thing necessary for carrying on these operations, and also for taking off ground for building whatever houses the landlord may think fit, and for gardens and other grounds adjacent thereto, to be possessed by such persons as he may think proper; and likewise, to straighten the marches, or excamb any part of said farm, the tenant being allowed indemnification for the ground occupied for any of the above purposes, as the same shall be ascertained by two arbiters to be mutually chosen, or by an oversman to be named by the arbiters, in case of their differing in opinion:"

66

That the said draft also contained clauses binding the tenant to accept

"of the whole houses, fences, roads, drains and gates on the farm, and in particular, the tofting which has been erected since his entry, 6 as in good and sufficient tenantable and habitable condition,' and to leave them so at his removal;-to cultivate the lands according to the rules of good husbandry, and, in particular, not to take two white crops in succession from the same ground,"

and to consume on the farm the whole straw and dung produced thereupon, and to leave the straw and dung of the last crop on the farm at a valuation; and "the said Daniel Campbell likewise binds himself and foresaids, that during the last four years, he or they shall, each year, have not less than one-fourth of the whole lands hereby let in fallow or green crop, effectually dunged and cleaned, not more than one-fourth in barley or oats, which shall be sown with a sufficient quantity of clover and rye-grass seeds; one-fourth in grass, which has been pastured for one year at least, and not less than one-fourth in hay :"

That the said lease contained also various other clauses restrictive of the tenants' rights, and in favour of the landlord; and the pursuer being satisfied therewith, left in the hands of Mr Wardlaw an offer to purchase the lands at the price of £1000, and in a few days thereafter received from Mr Wardlaw the following letter of acceptance :

"Edinburgh, 30th July 1828.-Sir, since receiving your offer for the property of Cuthil, I have had some correspondence with Mr Syme, and the gentlemen concerned with his affairs, and they have authorised me to accept of your offer of £1000 Sterling, payable at Martinmas, when your entry is to take place. The stamp-duty on the conveyance to be divided according to custom-the title to be accepted of as it stands, without requiring an entry with the superior-and the lease to Mr Campbell to be confirmed on the terms specified in the scroll, which was shewn to you when here some time ago. If Mr Williamson is to make out the disposition in your favour, the title-deeds will be sent to him. I remain," &c. (Signed) "Dav. WARDLAW." (Ad

dressed)" JOHN REDDIE, Esq. of Cuthil, Milnathort, Kin

ross."

That the scroll of the lease thus referred to in Mr Wardlaw's missive letter was the foresaid draft, containing the clauses above quoted; and Mr Williamson, the pursuer's agent, wrote immediately to Mr Wardlaw, offering to pay the half of the stamp-duty, if the purchase price was made £998, 10s., which Mr Wardlaw agreed to; and on these conditions the bargain was concluded: That on 6th August 1828, the defender wrote the pursuer, transmitting the foresaid draft of the proposed lease, and also another draft, of the existence of which the pursuer was not previously aware, which the defender stated had been prepared by the tenants' agent, but that in the

"material conditions they do not differ, and that the principal disagreements are as to the management of the lands, more particularly during the four last years of his possession. Perhaps the stipulations of the original draft are not quite applicable to a farm of that kind, while those of the other seem to be rather loose:"

That this last-mentioned draft contained a similar clause with that before quoted from the original draft, reserving power to the proprietor, and his heirs and successors, "to take off ground for planting trees on such places of the farm as they may think proper," with the addition of these words, which were not in the draft shewn to the pursuer, viz. "to the extent of acres." It also contained power to make roads and straight marches, to take off ground for building houses, with gardens, &c. ; as in the other draft, bound the tenant to cultivate the lands according to the rules of good husbandry, but contained no restrictions as to the mode of cropping, except for the four last years of the lease-the quantity during which period to be in green crop and summer fallow was left blank: That there were sundry other discrepancies of minor importance between the said drafts, and the pursuer returned the same to Mr Syme, with remarks thereon; and Mr Syme then writes, on the 21st day of August 1828:

"I shall send the scrolls, with your memorandum, to Campbell, that he may compare them, and say that he is satisfied and agrees:"

That thereafter the pursuer, at the request of the defender, and in order to oblige him and conciliate the tenant, endeavoured to arrange with the tenant as to the mode of cropping; but not having succeeded in this, and perceiving that the tenant was inclined to be troublesome, the pursuer wrote to the defender, reminding him that his object in making the purchase was to have the lands planted and improved, and

"without this liberty I would not have been disposed to make the purchase, and must beg leave to refer you to Mr Wardlaw, who will recollect, when he informed me there was a tack, I withdrew the offer I had made, until he shewed me the clause reserving liberty to plant what the landlord should think proper:" That in this state of matters, and as not the slightest hint was given by the said David Syme or Mr Wardlaw to the pursuer, which could lead him to suppose that the said Daniel Campbell had it in his power to keep possession, or to force a lease of the lands on any other conditions than those contained in the original draft exhibited to the pursuer, and referred to

in the missives of sale, the pursuer was induced, about the term of Martinmas 1828, when his entry was to take place, to pay the price of the lands, on receiving a disposition thereto, subscribed by the said David Syme, dated the 15th day of November said year, containing clause of absolute warrandice, and other usual clauses: That the pursuer having no reason to suppose that Campbell had it in his power to force a lease of the lands on any other conditions than those contained in the draft referred to in the missives of sale, and relying, therefore, that Campbell must either accede to that draft, or that he had no written lease at all, the pursuer, soon after his term of entry to the lands, procured upwards of sixty thousand trees, and employed a great number of workmen, who proceeded to line off the ground, and make preparations for planting the same; and the pursuer also agreed with a neighbouring proprietor to erect a march fence, to the extent of about half a mile, to protect his proposed plantations, for the half of the expense of which fence he is liable; but the pursuer's operations were put a stop to by the following intimation, which he received from Mr David Tod, writer in Kinross, as Campbell's agent:

"KINROSS, 5th December 1828.-Dear Sir,-Your tenant, Mr Campbell, has called on me this evening about the improve. ments which you have begun at Cuthil. From Mr Campbell's missive of lease, there is no liberty reserved by the proprietor to plant, or to interfere with the property in any way whatever,and if you are still to persist, I am instructed to make application to the Sheriff for an interdict:"

That this was the first time the pursuer was made aware of the existence of an unconditional missive of lease in favour of Campbell, and he, on the same day, wrote Mr Syme, requesting a copy thereof, and also to get back the two scrolls before referred to. Mr Syme did not think proper to answer this letter himself, but the pursuer received an answer from Mr Wardlaw, dated 8th December 1828, in which he says,

In the missive of sale, the benefit of the lease to Mr Campbell was reserved to him, according to the draft of that contract, but without specifying in particular which draft was referred to; and as there were two drafts in existence, one prepared by us, and another by Mr Campbell, which is different in some respects from ours, a difficulty arises as to the exact tenor of the lease to be granted;"

And as there seemed some chance of a law-suit between the pursuer and Mr Campbell, Mr Wardlaw said he had advised Mr Syme not to interfere in the matter: That, to this letter, the pursuer answered, that the difficulty did not arise so much from there being two drafts, both of which contained a power to plant and improve the lands, as from their being a secret unconditional missive of lease to Campbell, which enabled him to prevent the whole improvements, for the sake of carrying on which the pursuer had purchased the property, and the pursuer therefore requested to know if such a lease actually existed, as, if it did, it would be in vain for the pursuer to litigate with Campbell-and the pursuer reminded Mr Wardlaw of the statement which he made at the time of the bargain, that the landlord had reserved full power to plant, and of the clause which he read from the draft of the lease to that effect; but Mr Wardlaw,

in replying to this letter, which he did on the 10th December 1828, neither denies that such were the terms of the bargain with the pursuer, nor states whether Campbell had or had not the unconditional missive of lease which he alleged, but merely says, he is sorry that he cannot give the pursuer a satisfactory answer on the subject: That the pursuer's agent then applied for, and obtained from the said Daniel Campbell's agent, a copy of the alleged missive of lease, which was in the following terms:

"Conditions-Daniel Campbell's lease.-The lease to be for nineteen years, money rent to be annually for the first five years, £25; for the seven years following to be £35, and for the remainder of the lease £40; to be paid halfyearly, in equal portions, beginning the first payment at the term of Candlemas immediately after the separation of the crop, and the next at the term of Lammas following, and so on to the end of the lease. There was to be a suitable tofting put upon the lands the first year of the lease. The tenant to drive the carriages for the sum of £14, if the wood was taken from the Pottiehill or Blairadam-the stones from the nearest and most convenient quarry, and the reed from the Rhind. The fences were to be put in a good state of repair the first year of the lease, and were to be left so at the expiry thereof. The tenant was to have one hundred loads of small or lime coal, and forty load of chouse free at Kelty, when he had occasion for them. The above and foregoing are the conditions of Daniel Campbell's lease, to the best of my recollection. (Signed) JNO. BIRREL, Kinneswood, 7th August 1827. The above is the conditions upon which I am bound to grant a tack of Cuthil Farm to Daniel Campbell. He is not answerable for the expense of erecting the tofting. (Signed) DAV. SYME, Edinburgh, 27th February 1828;"

That the pursuer's agent wrote the said David Wardlaw, with a copy of this missive, on 23d December last, stating,

"We have not seen the original, and it will now be absolutely necessary that Mr Syme distinctly say how this matter stands ;" and thereafter, a great deal of correspondence ensued between the parties, in the course of which it was acknowledged, on all hands, that the pursuer's avowed object in purchasing the lands was to plant and improve them; but it was alleged, on the part of Mr Wardlaw and Mr Syme, that the pursuer was aware there was no concluded bargain with the tenant, while, at the same time, it was not denied by them that the foresaid missive of lease had actually been granted by Mr Syme, by which a concluded bargain is made with the tenant, or, at least, Mr Syme becomes bound to grant him an unfettered and unconditional lease, in terms which are exclusive of all right on the part of the landlord to carry through the very operations and improvements, for the sake of which the property was purchased by the pursuer: That the pursuer had thus, in the purchase of the said lands, been deceived and misled by the defender, and Mr Wardlaw, whose proceedings the defender had sanctioned and homologated, the pursuer having been kept in entire ignorance, till after the disposition was granted, and the price paid, of the existence of the said unconditional missive of lease in favour of Campbell, whereby the lands were rendered of comparatively little value to the pursuer-the conditions of the bargain had been violated, and the expense which the pursuer had incurred, with a view to his improvements, &c. had been rendered useless-by all which the pursuer

had suffered great loss and damage, and his favourite plans for improving his property-to which, by devolving the charge of his manufacturing business upon others, he had made arrangements to devote his whole time and attention—had been disconcerted and destroyed, and therefore concluding for £800 in name of damages, &c. The case was remitted de plano to the Jury Court, and a record was prepared; but, on the motion of the defender, the process was sent back to the Court of Session to discuss certain points of law, which, the defender alleged, went entirely to bar the pursuer's action. The Lord Ordinary (Corehouse) ordered cases on the relevancy, with which his Lordship made avizandum to the Court. In this discussion the only question was, Whether, supposing the pursuer's statement of facts to be correct, the action was relevant to go to a Jury? The defender pleaded-I. It is now incompetent to go back on the missives of sale, and on the communings and correspondence of the parties, which preceded the payment of the price, and the acceptance of the disposition, which contains no such stipulations as those founded on by the pursuer, but a mere clause of absolute warrandice in the usual terms. Besides, the words founded on in the missives of sale do not confer a right, but impose an obligation on the pursuer; and as to the disposition, the pursuer cannot found on it as the basis of his right, and yet go beyond it as not containing all the conditions of the bargain.-II. The pursuer's action is of the nature of the actio quanti minoris, and so has no place in the law of this country. -III. The pursuer was bound, in the first place, to discuss the tenant, by compelling him to agree to the proposed lease.-IV. In the most favourable view, the pursuer could ask no more than a restitutio in integrum, which has been all along offered to him, and rejected. The pursuer cannot make out a case of fraud; and if there has been error in essentialibus, there is no contract, and matters fall back to their original state. The pursuer pleaded,-I. It is quite compe tent for the pursuer to go back on the missives of sale to prove that the lands were sold, as let under one lease, whereas they were, in fact, let under anotherthis being a matter which did not at all fall to be taken notice of in the disposition, the clause of warrandice in which does not even except current leases. The granting of the disposition was only implement pro tanto of the missives of sale, which formed the written contract of the parties, and under which the pursuer and his heirs would have had a right to the lands, though no disposition had ever been granted. The representation of the seller, and the stipulation in the missives, prevented and superseded all inquiry, on the part of the pursuer, into the nature of the tenant's rights. As the missives refer to a lease which was shewn to the pursuer at the time of the bargain, it is competent for the pursuer to prove what lease this was. The only communing on which the pursuer founds is that at which the bargain was made; and the correspondence to which he refers was subsequent, and not prior to the bargain, and therefore cannot have been superseded by the terms of that bargain. The acceptance of a disposition was never held to bar the purchaser from pleading that he had

been deceived and misled in the transaction. The case of Hughes v. Gordon, 15th June 1815, F. C., was reversed in the House of Lords, simply because the ground of action in the summons was confined to the warrandice in the disposition, (1. Bligh, p. 309, et seq.) but the pursuer's summons is of a very different nature. There is, besides, a distinct allegation of fraud, which in all cases opens up the transaction to a proof.―II. It is not certain that the actio quanti minoris is excluded from the law of Scotland, but, at all events, the pursuer's action is not of that nature, but an action of damages for breach of a mutually understood bargain, in which the pursuer was misled by the intentional misrepresentation of the seller. Even the actio quanti minoris has unquestionably place wherever fraud or deception are alleged. In the cases of Hannay, 1785, and Inglis, 1788, the lands were sold by judicial sale, in which the plan and rental founded on, were intended only for the guidance of the Court, and not for the security of the purchaser. These cases, as well as that of Gray, in 1801, were cases of slump bargain, in which no specific extent or rental were upheld-and as no fraud was alleged, the purchaser was found entitled only to a restitutio in integrum.-III. The tenant was in pos session on the missive of lease granted by the defender, and the pursuer was not bound to dispute its validity with him. The defender was all along aware of the existence of the secret leases; and in his letter to the pursuer, of 23d January 1829, when he found concealment no longer practicable, he says

"Campbell certainly has a letter from me of 1824, obliging myself to grant him a tack; and in all my communications with you, I was careful to call him the tenant."

The defender thus avers, that while he all along held out ostensibly to the pursuer that there was no tenant, and by his letter of 6th August 1828, stated that the conditions of the lease were still unsettled, he was artfully framing his correspondence to bear the construction, ultimately, that there actually was a tenant who was in possession on a valid lease. The pursuer has averred in his condescendence,

That, subsequent to the date of the disposition in favour of the pursuer, the defender advised Campbell, that the secret unconditional missive of lease, held by him, was quite valid; that the pursuer had no right to interfere with any part of the property, for the purpose of planting, or otherwise, without Campbell's consent, and recommended to Campbell to pull up the trees if the pursuer should plant any."

The defender cannot, therefore, now change his ground, and maintain, that the secret lease is invalid, nor require the pursuer to challenge it as such; but the defender, if he considers it not binding, must set it aside by a declarator, either in his own name, or in that of the pursuer.-IV. No restitutio in integrum has been offered to the pursuer. The defender merely requested the pursuer to say, whether he would accept repayment of the price and interest, but the defender refused to bind himself to these terms, in case the pursuer should agree to them. Besides, repayment of the price, with interest, would not be a restitutio in integrum to the pursuer, who has incurred great expense on the faith of the bargain; nor is the pursuer obliged to give up the purchase, or forego his reasonable hopes of profit by the transaction. The same

plea was stated in the cases of M'Lean v. M'Neil; Gordon v. Hughes, and Ferrier v. Mudie, and overruled. The whole of the defender's pleas, even if otherwise good, are inapplicable in the present case, where the defender alleges that he was intentionally misled and deceived, which is the very essence and definition of fraud.

Lord Balgray.-I never saw a clearer case, nor a looser transaction. I was at first a good deal misled by the statement which is made on the part of the pursuer. If it had so happened that the seller of the lands had come to the purchaser, and said, here is a scroll of a lease of the lands, which I take you bound to confirm ; and if it had afterwards turned out that there existed a different lease, this would have been a case of gross misrepresentation. But I never saw a looser transaction. I don't know which draft it is that is referred to in the missives. A squabble took place between the tenant and the purchaser, so that the latter must have known how matters stood; and yet he goes on and accepts of the disposition, and pays the price, without saying one word, by way of complaint, as to being deprived of the power of planting; and how can he now go beyond the disposition, and come upon the seller?

Lord President.-I am of the same opinion.

Lord Craigie was understood to say--the only difference between the pursuer and the tenant was, as to the mode of cropping. They had none as to the planting.

The Court assoilzied the defender, and found him entitled to expenses.

Defender's Authorities.-(1.) Per Lord Chancellor Eldon, in Case of Dalswinton Settlements; 1 Shaw's Appeal Cases, 317. Hughes v. Gordon, 25th March 1819; 1 Bligh's Appeal Cases, 287. (2.) Ersk. III. 3. 10. Gray, 23d June 1801; M. voce Sale, App. No. 2. Hannay, 26th January 1785; Mor. 13,334. Inglis, 27th June 1788; Mor. 13,335. Hughes v. Gordon, ut supra.

Pursuer's Authorities.-(1.) Per Lord Glenlee, F. C. Vol. XVIII. p. 437. M'Lean v. M'Neil, 23d June 1757; Fac. Col. Ferrier v. Mudie and Ford, 9th March 1823; I Shaw's Appeal Cases, 455. Stewart v. Fraser, 15th May 1829. Hughes . Gordon, 15th June 1815, Fac. Col. (2.) Per Lord Glenlee, Fac. Col. 15th June 1815, p. 437; also M‘Lean and Ferrier, ut supra; Ersk. III. 1. 16.

First Division.-Lord Ordinary, Corehouse.-Act. Dean of Faculty (Hope,) and Deas; Brown & Miller, W. S., Agents.Alt. Solicitor-General (Cockburn,) and Ivory; Gibson-Craigs, Wardlaw & Dalziel, W.S., Agents.-D. Clerk.

10th February 1831.

No. 221. SIR CHARLES HALKETT, Pursuer, v. EARL OF ELGIN, &c. Defenders.

Process-Remit-Report-Objection-Competency-Held incompetent to move for a remit to the Jury Court to ascertain facts regarding which a report had previously been given, and a fuller report had been afterwards ordered to be given, by a man of skill, originally appointed with consent of parties, regarding certain coal fields.

In this case various reports by men of skill had been obtained. In particular, a report was given in by Mr Taylor, a man of skill mutually chosen. To this report revised objections and answers were lodged. On considering these, the Lord Ordinary (10th July 1830,) issued the following

"Note.-What does the objector desire? A remit to Mr Taylor to reconsider along with the objections? Or does he desire a proof, or Jury trial? Or a judgment of the Lord Ordinary as the case stands? There ought to be a consent of parties to some mode, if the case be not to come to a trial." And thereafter,

"The Lord Ordinary (23d November 1830,) having consi

dered the revised objections, revised answers thereto, and whole process, Remits of new to Mr George Taylor of the Ayr Colliery, to reconsider his report, together with the objections for Sir Charles Halkett, and answers thereto for the Earl of Elgin, and to make any additional inquiry that may appear to him necessary; and thereafter, to report whether any, and what modi. fications of his present report he thinks proper, and particularly whether or not he thinks the value of the communication ought to be greater or less than he has at present reported."

Against this interlocutor the pursuer reclaimed, praying the Court

"to alter the interlocutor complained of, and to sustain the pursuer's objections to Mr Taylor's report, in respect of the judicial statements and admissions of the defender already on record; Or, at all events, to remit the case to the Jury-Court roll, in order to have the facts, in so far as still controverted, as well as the just worth and value of the communication of the Pitfirrane level to the defender, under the agreement of 10th November 1818, finally ascertained by the verdict of a jury."

The Court-holding that unless corruption were averred, it was not allowable, on finding unfavourable the report made by a person to whom a general remit had been made with consent of parties, to come forward with an offer of proof before a jury, or otherwise-adhered, with expenses, since the Lord Ordinary's interlocutor.

Authority.-Dickson v. Monkland Canal Company, House of Lords, 29th June 1825.

Second Division.-Lord Ordinary, Mackenzie.-Act. Keay, Cuninghame. Alt. G. J. Bell, P. Robertson.-W. H. Sands, W.S., and Adam Rolland, Junior, W. S., Agents.-Mr Rolland, Clerk.

OUTER HOUSE.

5th February 1831.

No. 222.-BOYES'S TRUSTEES, Pursuers, v. D. MARSHALL AND J. BRYSON, Defenders.

Process-Reduction-Defences, Dilatory and PeremptoryAct of Sederunt, sec. 36.-After production had been satisfied -Held I. That a party was not afterwards entitled to plead that certain parties having interest had not been called.-II. That it was still competent to propone the plea of res judicata, founded on a decree sought to be reduced: And III. That it was unnecessary to decide in hoc statu as to a plea, that the pursuers were bound to pay the expenses incurred by the defenders in the process in which decree was pronounced, if the plea of res judicata should be repelled.

The pursuers brought an action of reduction of a decree (dated 16th January 1826,) of the locality of the stipend of the parish of Hamilton, on the ground that an augmentation, imposed on the teinds of the defenders, had been improperly transferred to the lands of Earnknock-muir, as possessed by them and another proprietor pro indiviso, and as liable in special and real warrandice, while the deed, in consequence of which the transference was made, contained no warrandice against augmentations. The production having been satisfied, the defenders stated the following defences, inter alia, viz.-I. That all parties having interest had not been called, viz. the titular and heritors, and particularly, the proprietors of the other half of Earnknock-muir.-II. That the question raised by the pursuers was res judicata.-III. Supposing the question raised by the libel still open for discussion,