the reasonableness, by which I mean the reasonableness of the offer at the time the creditors, nine-tenths in number and value, agreed to accept it; for I hold that to be an unwarrantable doctrine ventured by Mr Bell, without any authorities cited by him in support of it, and wholly adverse to the fair policy of the bankrupt law-a doctrine which would enable any creditor, by holding out and entering into a protracted litigation, to bring the matter before the Court in circumstances wholly different from those wherein the creditors were called upon to exercise their discretion, in accepting or refusing the composition. I think the reasonable construction, and the construction suited to the policy of the law, is one which requires the Court only to consider the reasonableness of that offer at the time; and in the circumstances in which it was submitted to a meeting of the creditors, with a reservation, no doubt, of any thing in the nature of surprise-any thing in the nature of misrepresentation of the funds-any thing in the nature of noviter veniens ad notitiam; that is, any new information with respect to the nature of the funds at the time the composition was accepted by the creditors; but, excluding any consideration of the increased value of the property, between the date of the composition accepted and the period of the Court's coming to its decision, the Court is to see where the objection is raised, first, that the composition was reasonable; and secondly, that the statute requisite had been complied with, by nine-tenths in number and value having aceepted. Now, I take it to be clear, that though this raised the question of reasonableness before the Court, it is the duty of the Court, in all cases, to lean much, and I may almost say exclusively, towards that which the creditors themselves, by a large statutory majority in number and value, have thought fit to accept. They decide on the nearest view of the circumstances, and they, at all events, are the best judges of what is for their own interest; and it is a very large proportion of those who are interested which is required by the Legislature to concur-and that is, for this reason, that so large a proportion gives a reasonable and fair security in ordinary cases-that that which has been so offered and so accepted is good for the whole, as well as for the nine-tenths-and that the remaining tenth who do not accept, are influenced by an unsound view of the state of the affairs of the bankrupt, or, probably, by a less sound view of their own interest, than that taken by the very large majority which has accepted. This does obviously not exclude the jurisdiction of the Court, where, from the peculiarity of the circumstances, it is quite clear that the creditors have done wrong; if it is perfectly clear that they have done that, under a false impression of the nature of the funds, or false views taken of their own interest, it is perfectly clear, that, in such a case, the Court has a right to say it is an unreasonable offer they have accepted, although nine-tenths in number and value have agreed to accept the composition; but in all cases, the leaning ought to be clearly in favour of an offer so accepted, and in all cases, the burden of the contrary proof ought to be held strictly and largely to lie upon those who desire to bring the Court to that conclusion. My Lords, with these views of the case, I have looked into the evidence as it has been stated, which was before the Court below, and which has been brought before your Lordships. We have now to judge of the same question, whether the creditors did well in accepting that offer; and I am called upon, by the counsel for the appcllants in this case, to advise your Lordships, that nineteen hundred personsfive or six hundred of whom were actually present at the meeting, and the rest of whom authorised those who were present to act for them-claiming an amount of debt so large as £169,000, were all so little aware of what it most imported them accurate. ly to know, or were all so careless of that which their interests ought to lead them to do for their own good, as either to have taken a composition less than the estate would have afforded, from underrating the value of the estate, or, if they did not underrate the value of the estate, for reasons which have been largely urged at the Bar, other reasons than the mere amount of the sum offered that they have agreed to do that which, in those circumstances, and with their eyes open to the value of the estate, they ought not, upon a sound view of their own interests, to have done. Could I advise your Lordships lightly to come to that conclusion, even if this were a case in which a smaller num

ber constituted the meeting, where it was a statutory majority, nine, for instance, governing ten, that they had formed a wrong estimate either of the bankrupt's estate or their own interest, in preferring the security of a cautioner to the chance of a better dividend if the land were brought to sale. If I thought not, there ought to be very strong circumstances to induce me to suppose that nineteen hundred out of little more than two thousand, and if those six hundred actually present were to be considered, on the representation of a four-hundredth part of the whole coming forward to object, have committed such a mis. take. It appears to me, to say the least of it, a wild supposition of a bare, but most remote possibility. My Lords, Courts of law cannot act on suppositions of such remote possibilities. Courts cannot act upon a thing, merely because it is not absolutely impossible that it should be true; they must act as dealing with the affairs of men upon the ordinary rules which guide men of sound minds in the discharge of their duties to themselves a chapter of ethics which may be most safely left, in nine hundred and ninety-nine cases out of every thousand, to the individuals themselves to deal with; I mean, that they may most safely be trusted, in that great majority of cases, with the knowledge, and the discretion operating upon that knowledge, as to that which is best for their own individual interest. It is clear, that an offer of 20s. in the pound without interest, ready money, with the security of solvent bondsmen, may be a much more advisable thing to accept than the chance of 20s., plus one shilling in the pound of interest, without a bondsman, and conditional, upon the sale of an estate in Scotland being so soon completed, and so successfully accomplished, as to come up to that 21s. in the pound on the amount of their debts; for they are guaranteed against another event, which at all times, and which, in 1827-8-9, of all years, was not surely the most remote possibility,namely, the possibility of a fall in the value of land; at all events, they had the security of the bondsmen to stand against any adverse circumstances of any nature whatever. The meeting took all those circumstances into consideration, and beyond all that, there is the fact, which it seems to me impossible to get over-the vast number as well as great majority of persons upon whom it is impossible to suppose that any imposition can have been practised. My Lords, I have no doubt whatever, that the Court of Session did come to a sound discretion upon this subject; nevertheless, I cannot give my sanction, even by passing it by unnoticed, to the doubt expressed as to the relevancy of the evidence with respect to the amount of the estate. I think that was not justified; for if it had been proved, that, instead of being according to the calculation-£38,000 for instance-if the property was properly sold, it would have amounted to half a million, no one can doubt, that if that great majority of creditors, acting for their own interests, had accepted bad terms, and the proposition ought not to have been accepted; then, that fact being misrepresented, on an exception being taken to it, the matter must have been re-opened. Feeling it my duty just to observe on these things thrown out in the course of the argument, I shall humbly advise your Lordships to affirm the interlocutor appealed from in the first case. With respect to the second case, I certainly am under the necessity of advis ing your Lordships to come to a different conclusion. Mr Smith the trustee, not a man of business, but a country gentleman, acted as what we should in this country call the sole assig. nee of the estate and effects of the bankrupt. In the course of a controversy, which has brought the matter ultimately to this House, he was served with diligence-as it is called a writ, in the nature of a subpoena duces tecum-to bring all instruments in his possession before the Court, for the purposes of justice. After being served with this writ, of the exigency of which he ought to have been aware, he thinks fit to destroy a letter, which letter, even by his own account of it upon his oath, when endeavouring to explain away this rash act of his, clearly appears to have come within the description in the writ, or at all events, not to be excluded from the description, and, consequently, he ought not to have exercised any such discretion,--he ought not to have decided whether it was material or not, even whether it came within the exigency of the writ or not; but it appears to me to be perfectly clear, that it did come within that exigency. I say further, and say it most deliberately, that after having

been served with that process, if he thought it as clear as noon. day that it did not not come within that writ, he ought not to have destroyed it. But admitting, as he does, that it seemed to him not to come within the exigency of the writ, he had no business to destroy it upon any fancied idea of its immateriality. It would be needless to add to your Lordships, that there would be no security in the administration of justice-no security for parties whose dearest interests depend on the conservation of evidence-if such a rule should be established as that, an opening for which is presented by what was said in the Court of Session, in dealing with this evidence; for one of the learned Judges says, that this gentleman appears to have done it through inadvertence. I am satisfied he did not do it through inadvertence. No one shall be heard to say in a Court of law that he destroyed a paper through inadvertence at any time; but least of all, shall any man be heard to say in a Court of law, that he destroyed a paper through inadvertence, when he tells you in the same breath, that he destroyed it after he had been served with notice to produce it; that notice determines inadvertence-that notice puts all question of inadvertence out of Court-that notice makes it advertence, whether he will or not. He is at his peril to be advertent; and he shall not be heard in any Court of law, either in Scotland or England, to say that, after the service of the writ, he destroyed that which the writ called upon him to produce, and to keep for the purpose of production. I say, then, even if he had thought that the paper was not aimed at by the writ, he had no business then to destroy it. There are times and seasons enough for destroying useless papers, other than those times and seasons, important in their nature, suspicious in their occurrence, which intervene between the service of a writ like this, and the day in the same week in which the destruction takes place; and be it observed, too, when the party, in conformity to that writ, was called upon to produce it on an early day, he ought not, at such a time as that, to have destroyed a letter, even if he was aware, which he was not, that the letter was not a letter which the writ required him to keep and to produce. But how much stronger is the case against him and against the decision the Court have unfortunately made, when he only says he doubted the materiality of it-a question which the service of the writ took away from his jurisdiction, and brought within the jurisdiction of the Court, and precluded him from taking into his account, as much as if it had been determined that he was bound to produce it. The service of the writ put an end to the excuse of inadvertence on such a subject; nevertheless, the Court of Session have thought fit to say, that this gentleman was liable to no censure and they have even awarded the expenses or costs incurred by him, in consequence of the application, to be paid by the party who made that application, to Mr Smith, who destroyed this instrument. I cannot understand the ground of that decision. I do not see that it is founded in reason,-I am sure it is not founded in the practice of any regular Court of Justice in any part of the world and I am sure it is inconsistent with the conduct of the Court of Session itself; for in the case which has been referred to, of M'Rae v. Mackenzie, in 2d Shaw and Dunlop, a petition and complaint having been presented to the same Court, or one of the Divisions, against a bankrupt, for having written certain scurrilous letters, the Court disposed of the complaint, on the ground that it was incompetent, by which I infer, they meant that they had not jurisdiction to deal with it. was a case for granting costs against a party bringing another before the Court, to the party who was the object of the application, if such a case could be put, being one in which the Court had no jurisdiction, nevertheless they awarded the costs against the man who was said to be not within their jurisdiction, but they awarded them, because of the impropriety of the expresssions he had used in his letter. That is going on a principle different from that on which they have determined this case, whether they were right or wrong in that, I have no business now to inquire, only I say, that that was a much weaker case for giving costs against the person whose conduct was impeached, than this is, unless it is meant to be said that it is a worse offence for a man to commit, and for the Court to take cognisance of, that a man should write an abusive letter, than that a trustee, after being served with a subpoena duces tecum to

That

keep and produce that letter, should choose to destroy it. There is no comparision between the two cases; and the same principle which induced the Court to give the expenses in the former case, ought, in my opinion, to have induced it to give the expenses in the latter, instead of which they have given the expenses to the other, and as I humbly submit to your Lordships, the wrong way. My Lords, I have said, Mr Smith is not a man of business, and that is the most extenuating circumstance. If he had been a man of business, I should have recommended to your Lordships to remit the case to the Court of Session, with words of censure upon him, not considering that that which he has admitted in his deposition is sufficient to impute to him an act of indiscretion. I go no further, upon the ground that he is not a man of business, and that it is exceedingly possible he may have thought this an act of kindness towards Alexander, who had written, what he calls a private letter, in a moment of irritation. Taking all these circumstances into consideration, I shall propose to your Lordships to remit the case with respect to Smith. With respect to Alexander, the case is somewhat different. I think he had better not, in the peculiarly delicate situation of the bankrupt, have destroyed any part of these papers; but he destroyed them on a supposition, which appears fair and plausible on his part, that they were the corre. spondence between himself and another person on the question of obtaining security, and that treaty having failed, he destroyed them; but there is a material circumstance, and which widely differs his case from that of Mr Smith,-this was before he was served with the diligence of the Court, and, therefore, though I am clear the Court ought not to have allowed him his expenses in this case, I do not think the Court ought to have allowed expenses as against him, in favour of the petitioners; and I shall therefore move your Lordships, that this case be sent back to the Court, with instructions, which I shall dictate from the Woolsack, according to the tenor of the principles I have taken the liberty to lay down. My Lords, I hold this to be a case of more than ordinary importance; for it is highly necessary to guard against whatever would break in upon that most sacred rule-the preservation of evidence-in order to its being produced in our Courts of Justice, and to repress any destruction, by the hand of the keeper of it, of written evidence; and above all, after the Court has issued its process, to bring the evidence into Court. That rule is as sacred as it is important, and it ought, in all cases, to be most sacredly observed. The interlocutor in the first case affirmed.

Lord Chancellor.-In the second case, Is it your Lordships' pleasure that the interlocutor appealed from be forthwith remitted, with instructions to the Court below to dismiss the complaint as against Alexander, but without expenses, and to find that Smith acted with indiscretion, as appears upon his own explanation, in destroying the letter (after stating the date of the letter,) of Alexander to himself, after he had been served with diligence, and thus taking upon himself to judge of its materiality, when he ought to have kept it ready to have produced it under the diligence, according to the exigency of the writ; and find him liable in expenses in the matter of the petition? Ordered accordingly.

Lord Chancellor.-The House gives no costs in the first appeal.

First Division.-Appellants' Solicitor, Alexander Dobie.Respondents' Solicitors, Richardson and Connell.

Printed by M. ANDERSON, Law-Printer.

wages.

Mac

The respondents were chaise-drivers in the service of John Mackay, inn-keeper at Airdrie, who was indebted to them in the sum of £8 each of kay became bankrupt, and the complainer was appointed trustee on his sequestrated estate. The respondents raised separate actions against the complainer, before the Sheriff-substitute at Hamilton exercising jurisdiction under the small debt act, for payment of the wages due to them by the bankrupt, which they alleged the complainer had promised to pay to them, but had failed to do so. The complainer, though personally cited, failed to appear, and decree in absence was pronounced against him. Having been charged to pay the sums so decerned for, he suspended, and maintained-I. That the Sheriff-substitute at Hamilton had no jurisdiction over him.-II. That the charge and diligence were directed against him personally, and therefore were not warranted by the decree. Answered.-I. The Sheriff-substitute has jurisdiction.-II. The decree was a personal decree, and could be nothing else. Any action against the complainer, with the view of establishing a ranking on the estate, or for any other purpose than to establish a personal responsibility, would have been incompetent. The Court on 22d November 1827, (6. S. and D. p. 99,) found that the Sheriff-substitute had jurisdiction, and therefore, that the suspension was incompetent. The complainer then presented the present suspension and interdict, on the ground that the respondents were threatening personal diligence against him, which he maintained was incompetent, as he had no funds in his hands; and he alleged that the Court, at advising the former bill of suspension, although they refused it as incompetent, expressed an opinion that the complainer was not personally liable. Answered-It is denied that the complainer has no funds; but, at all events, he is personally liable to the respondents-and the Court expressed no such opinion as that here alleged. The present suspension and interdict is equally incompetent with the former suspension, and it is further incompetent, as including two respondents who hold separate decrees. The Lord Ordinary (Medwyn,) found that, at the date of the charges, the complainer had not funds in his hands:

"And as the Lord Ordinary is not satisfied that the Court intended that the decerniture in favour of the chargers should be a personal decerniture against the suspender, suspends the letters simpliciter, and decerns; but, under all the circumstances of the case, finds no expenses due."

The complainer reclaimed as to expenses, and the respondents on the merits.

Vol. III.
SJ. W. DICKSON, W. H. DUNBAR, Advocates, JOHN
Conducted by RYMER, W.S., and others, Members of the Bar.

Lord President.-The complainer has paid the expenses incurred in the former action, and how would he have done this if he had not considered himself personally liable? It is in vain to say he has no funds;-he has homologated it as a personal decree.

Lord Balgray.-It often happens that the trustee is willing to take it upon him to pay small debts. He will have relief from the other creditors. The decree could not be against the estate. It was against the complainer personally; and I interpreted it so at the time.

Lord Craigie. I hold it to have been a personal decree; and the conduct of the complainer shews that he considered it so himself. Such proceedings as the present are insufferable in this Court.

Lord Gillies agreed that it was a personal decree; and if he had formerly made any remarks to the contrary, it must have been under an entire mistake.

The Court refused the note for the complainer; and on the note for the respondents, "Alter the interlocutor reclaimed against; find the letters. orderly proceeded, and decern: Find the complainer liable in expenses," &c.

First Division.-Lord Ordinary, Medwyn.-Act. Dean of Faculty (Hope) and Wilson; William Mercer, W.S., Agent. -Alt. Jameson; Wotherspoon and Mack, W.S., Agents.R. Clerk.

10th February 1831.

No. 228.-CHARLES FERRIER, Pursuer, v. W. C. C. GRAHAM, &c. Defenders.

Bankrupt-Oath on Reference-Held incompetent for the defender, in an action brought by the trustee on a sequestrated estate, to refer matters contained in an issue, on which the jury had returned a verdict against the defender, to the oath of the bankrupt, who had been discharged before the trial without any prospect of reversion from the estate.

White, a jeweller in Edinburgh, had been induced to lend to, or procure loans for the defender, of £1200. He obtained assignation to two English bonds, with warrandice against fact and deed by Graham. These assignations were duly intimated. The debtor in the bond died. His trustees resisted payment, on the ground that they were for game debts. White raised an action against the trustees of the debtor for payment, and ultimately against the defender. The trustees of the debtor raised a reduction of the bonds, in which they succeeded. Meantime, White was sequestrated as partner of the Cooperage Company. The pursuer was appointed trustee, and wakened the process brought by White, who was discharged with no chance of reversion. Thereafter, on the 4th of December 1827,

"The Lord Ordinary having advised the mutual revised cases for the parties, and whole process-Primo, Repels the plea of res judicata set up by the defender, In respect that the summons proceeds, in the first instance, against the trustees of the late Sir John Louther Johnstone; and it is only in the event of action being denied against them, on the ground of the bonds being for a game debt, that the conclusion against the defender, Graham, for repetition of the sums paid for the assignations to the said bonds could be proceeded in; that, accordingly, the trustees appeared and gave in defences, but Mr Graham gave in no defences; that, therefore, the interlocutor assoilzieing the defenders can apply only to the trustees, and not to the other defender, who, by the form of the action, could not be called upon to plead till the other defenders were assoilzied: Secundo, Finds that the warrandice in the assignations, is the usual warrandice recognised by our law in the transference of nomina debitorum, and that it imports debitum subesse: Finds, on the supposition that the assignee was ignorant of the state of the

No. XVII.

fact now disclosed, that the statute of Queen Anne annulling the debt, so that no action can be maintained against the granter of the bonds, is no bar to the present claim, by which the assignee seeks repetition from the cedent, one of the parties in the gambling transaction, of the sums which he advanced, on the faith of his obtaining a conveyance to a just debt; and, therefore, also repels the second defence pleaded in the cases, and appoints the cause to be enrolled in the Lord Ordinary's roll, in order to its further disposal.".

This interlocutor was adhered to. An issue, in which the defenders were to be held pursuers, was prepared in the Jury Court in the following terms:

"It being admitted that the pursuer, Charles Ferrier, is trustee on the sequestrated estate of John White, late merchant in Edinburgh, and that the defenders James Brown and Edward M Millan, are trustees on the estate of the defender, William Cunninghame Cunninghame Graham of Gartmore, Esq. It being also admitted that, on the 21st of May 1819, the late Sir John Louther Johnstone, Bart. granted to the said William Cunninghame Cunninghame Graham two bonds in the English form, the one for the sum of £4000 Sterling, voidable on payment of the sum of £2000 on the 21st day of May 1813, the other also for the sum of £4000 Sterling, voidable on payment of the sum of £2000 Sterling, on the 21st day of May 1814: It being also admitted that, on the 22d day of January 1811, the said John White obtained right by an assig nation to the bond first mentioned, and on the 1st day of May 1811, obtained right by assignation to the said last mentioned bond: It being also admitted that, by an interlocutor in this action, dated 6th July 1819, the trustees of the said Sir John Louther Johnstone were assoilzied, on the ground that the said bonds had been granted by the said Sir John Louther Johnstone for money lost to the said William Cunninghame Cunninghame Graham at play, contrary to the statute 9th Anne; and that, in a process of reduction at the instance of Sir John Louther Johnstone's trustees against the said John White, the said bonds were found to be void and null:-Whether, at the time the said bonds, or either of them, were assigned, as aforesaid, the said John White knew that the said bonds, or either of them, were granted by the said Sir John Louther Johnstone to the said William Cunninghame Cunninghame Graham for money lost at play, as aforesaid?"

The Jury found for the defender in the issue, i. e. for Mr Ferrier-White not having been examined as a witness. On a motion before the Lord Ordinary for decree against Mr Graham, the latter referred to the oath of White the facts admitted to the defender's probation, as contained in the issue. When, after debate,

"The Lord Ordinary (8th December 1830,) having considered the revised cases for the parties, and advised the process, Finds, that if it shall turn out that John White is a discharged bankrupt, having no interest in this case, which has been wakened and insisted in by the trustee for his creditors, and that it is carried on solely for their behoof, it will not be competent to make a reference of the same to his oath of verity, as proposed by the defender; but as it is not admitted that the bankrupt has been discharged, appoints the pursuer to produce in process the bankrupt's discharge.-Note. When a bankrupt has obtained his discharge, his interest in the recovery of his estate is at an end; and if there be no improper agreement or understanding between the bankrupt and his creditors, as the cause of granting the discharge, he will become an unobjectionable witness in any cause relating to that estate; and if so, it must be incompetent to refer a cause which is pursued for the benefit of others, to his oath of verity, for which interest is the qualification. If the defender in the present case really wished to have the benefit of Mr White's evidence, he should have brought him forward as a witness on the trial."

The defenders-viz. Graham and his trustees-re. claimed. At advising,

Lord Cringletie thought that the defenders could not effectu

ally plead that they had been previously disappointed of White's oath as a witness, because they might have examined him on the trial. The reference to oath was just asking a second trial. The Lord Justice-Clerk had no doubt that the bankruptcy was complete. White was no longer the party, and therefore, as he had no interest, his oath could not be taken on a reference. Yet his admissibility as a witness was a very different question. The defenders had taken their chance, and not called him on the trial. And they now proposed to put him to the torture, by a reference to oath.

The Court adhered.

Authorities for Pursuer.-Ersk. III. 5. 9. Tait, p. 293, 363. Towers v. Mein, 11th July 1829.

Authorities for Defenders.-Moonie v. Broomfield, 3d December 1736; M. 12,471. Blair v. Balfour, 9th July 1745; M. 12,474. Halkerston v. Lindsay, 26th February 1783; M. 12,476. Buchan v. Barclay, 31st January 1787; M. 11,128. Bell. Com. II. 484; I. 334. Tait, p. 276. Sinclair v. Johnstone, 7th November 1749; M. 12,475. Grant v. Creditors of Grant; M. 12,476. Pringle v. Biggar; M. 12,473. Nairne v. Ogilvie; M. 12,468. Ritchie v. M'Kay, 11th July 1829, and 7th March 1826; Sh.

Second Division.-Lord Ordinary, Medwyn.-Act. Forsyth. -Alt. Rutherfurd, Gr. Spiers.-Lockhart and Swan, W. S., and Deuchar and Knox, S. S. C., Agents.-Mr Thomson, Clerk.

11th February 1831.

No. 229.-JOHN GRAY & OTHERS, Competing with GEORGE AITKEN, in Multiplepoinding GEORGE JEFFREY v. THEM. Legacy-Revocation-Homologation-I. Circumstances in which a legacy to a daughter, in full of all claims, not held revoked by subsequent deeds giving her the half of all money in the testator's possession.-II. A deposit-receipt, taken in name of the testator's daughter, discovered in his repositories at his death, and not claimed by her ;-found proved, by the conduct of the parties, to have been the property of the testator.

John Gray and others, as children and executors of the deceased Ann Aitken or Gray, spouse of John Gray, senior, merchant, Dalkeith, raised an action against George Jeffrey, for delivery of a promissorynote for £250, by Messrs Ramsay, Bonars and Company, (formerly Mansfield, Ramsay and Company,) in favour of Mrs Gray, dated 27th June 1827, which had been put into Mr Jeffrey's hands, that he might pay the interest thereof to Mrs Gray's late sister, Margaret Aitken, who was liferented thereof, in terms of her late father's settlement. Defences were lodged for Mr Jeffrey, stating that the promissory-note in question was also claimed by George Aitken, the brother of Mrs Gray and Margaret Aitken, so that he was not in safety to deliver it to either of them; and a multiplepoinding was afterwards brought in name of Mr Jeffrey, in which Mrs Gray's children, and the said George Aitken, respectively lodged claims. It appeared that James Aitken, the father of George Aitken, and grandfather of the other claimants, died in September 1812, leaving various deeds of settlement, viz.-I. A settlement dated in September 1802, by which he conveyed his whole property to the claimant, George Aitken his son, burdened with £200 to each of his two daughters, Margaret and Susan, and £120 to his other daughter Mrs Gray, which provisions were declared, by a codicil, dated 1804, to be in full of legitim, and every thing else his daughters could claim through his decease. By the settlement of 1802, it was declared, that, failing any of the daughters, the heirs of their bodies should succeed to their provisions; and, failing such heirs, then that the

same should go to the survivors equally among them.— II. A testamentary deed or writing, dated 27th February 1807, in the following terms:

"This is to testify, that what money and household furniture is in my possession at my decease, is to belong to my daughters, Margaret and Susan, and to be their property so long as they live, and to be divided equally betwixt my son George and Ann Aitkens, at their death, or the heirs of their bodies, agreeable to the disposition in their favours; reserving always my power to make any alteration I may think proper. In witness, written with my own hand, and is signed one sheet letter, at Dalkeith, 27th February 1807." (Signed) "JAMES AITKEN." III. A holograph writing, addressed by the testator to his daughter Margaret, in the following terms :"This is to testify, that as my daughter, Margaret Aitken, stands in need of all the interest of £500 to support her in a comfortable way of living, as every necessary is very dear, so I give her full power to uplift interest of the whole sum of £500 in Mansfield and Ramsay's hand; and that neither my son George, nor my daughter Ann Aitken, shall presume to uplift any part of the same till my daughter's death. October seventeen, one thousand eight hundred and ten years, written with my own hand, and signed. (Signed) JAMES AITKEN."-" To my daughter, Margaret Aitken."

Upon the death of James Aitken, his surviving children, Mrs Gray, Margaret and George-Susan having predeceased her father-ratified the above writings and deeds; and subjoined to the ratification there were the following acknowledgments:

"I David Reid, portioner in Dalkeith, hereby acknowledge to have received in trust, for the children of the deceased James Aitken, in bills, the sum of £500 Sterling; and hereby bind myself to see the interest of the whole sum, as above, regularly paid to Margaret Aitken, the deceased's eldest daughter, agreeable to a holograph letter in her possession.” (Signed) “ DAVID REID."

In consequence of the death of Mr David Reid, I acknowledged to have received, by the hands of George Aitken, the two bills, value £500, for beboof of the children of the deceased James Aitken; and farther bind myself to employ the interest yearly, and pay the same to Margaret Aitken, for her use allenarly." (Signed) "GEORGE JEFFREY."

The bills or deposit-receipts lodged with Mr Reid, were a deposit-receipt by Messrs Mansfield, Ramsay and Company for £400, dated 3d February 1803, in the name of the testator James Aitken, and a deposit-receipt by the same firm for £100, dated 27th February 1808, in the name of his daughter Margaret, which was found in his repositories at the time of his death, Another deposit-receipt of the same firm, to James Aitken, for £120, was delivered to his daughter, Mrs Gray, in satisfaction of her provision under the settlement of 1802. At the time when the custody of the deposit-receipts was transferred to Mr Jeffrey in 1821, renewals were procured from Messrs Ramsay, Bonars and Co., by taking from them two deposit-receipts of £250 each, one in name of Mrs Gray, and the other in name of the claimant, George Aitken. This change, George Aitken alleged, was made without his knowledge or consent, by the claimant, John Gray-but this the other claimants denied. In the present processes, George Aitken claimed the one half of the £400 bill which belonged to James Aitken-one half of the £120, which likewise belonged to him, but had been appropriated by the late Mrs Gray, and the whole of the £100 receipt in name of Margarat Aitken, which the claimant,

George Aitken, alleged was her own property, but which the other claimants maintained had been taken payable to her for behoof of her father. Mrs Gray's executors pleaded-I. The whole of George Aitken's deeds are to be taken together, as forming his arrangements for the disposal of his property. The writings of 1807 and 1810 do not contain, nor imply any revocation of the provisions to the daughters in 1802. II. Under those deeds, Mrs Gray's executors are entitled to £250 of the £500, liferented by Margaret Aitken, in addition to the £120 which was payable under the deed of 1802, at the first term after Mr Aitken's death.-III. The deposit-receipt for £100, which was found in the repositories of James Aitken, though taken in name of his daughter Margaret, has been acknowledged by all the parties to have been, and actually was his exclusive property, and formed part of the £500 appointed to be life rented by Margaret Aitken.-IV. George Aitken having suggested, and agreed to the arrangement as to taking the two deposit-receipts for £250 each, in name of Mrs Gray and himself, cannot now repudiate that arrangement. George Aitken pleaded-I. James Aitken's deeds of 1807 and 1810, imply a revocation of the provisions to the daughters by the deed of 1802. -II. The presumption of law is against double provisions.-III. The deposit-receipt for £100 was Margaret Aitken's own property; and IV. The change in the form of the receipts, in 1821, cannot bar the present claim, as it was made without the knowledge or consent of the claimant, George Aitken. The Lord Ordinary (Corehouse),

Finds the said George Jeffrey entitled to the expenses of bringing the process of multiplepoinding into Court out of the fund in medio, and remits to the auditor to tax the account thereof, and to report: Decerns in the ordinary action against the said George Jeffrey for delivery of the £250 bank receipt; quoad ultra assoilzies him from that action; and in the multiplepoinding, prefers the said John Gray and others, claimants, in virtue of their claim and writings produced, to the fund in medio, as claimed by them, and decerns in the preference against the raiser of the multiplepoinding for delivery accordingly, under deduction of said expenses found due to him : Finds the other claimant, George Aitken, liable to the said John Gray and others in expenses of process, and remits to the auditor of Court to tax the account thereof, and to report.-Note.-It cannot be held that the legacy of £120, left to Ann Gray by the settlement in 1802, which was payable at her father's death, and in full of her legitim and every other claim, was meant to be revoked by the testamentary writings, or codicils, as they are called, dated in 1807 and 1810. Every presumption arising from the comparative value of the bequests to her in 1802 and 1807, from the different terms of payment of these bequests, from the state of the testator's family in 1802, 1807 and 1810, and from the conduct of the family after the testator's death, is opposed to the construction for which the claimant George Aitken contends. Nor does any difficulty arise from the codicil of 1807; for by the money in the testator's possession, there mentioned, must be understood either his moveable funds, deducting the sum set apart for Ann, or the money in his natural possession, contra-distinguished from that which was in the hands of his banker. With regard to £100 lodged with Mansfield and Ramsay in the name of Margaret, on which James Aitken tests as his own property, there is abundant evidence in the conduct of all parties, and particularly of Margaret herself, to shew that it really belonged to him."

George Aitken and George Jeffrey reclaimed, (the latter in so far as he was not found entitled to his ex