of a general meeting of the banking Company creditors, held 9th September 1812, and Mr Gibson proceeded to pay a dividend upon the distillery debts. In March 1813, the assignees intimated their intention of not carrying through the arrangements of 26th September 1812, which authorised the payment of the distillery creditors out of the funds of that concern ; After a variety of correspondence, the respondents raised an action of multiplepoinding, and the assignees, on 8th May 1818, raised an action of reduction, &c. of the trust-disposition of 6th August 1812, on the grounds-I. That the deed was not granted by the distillery company, nor with their consent, but by one of the partners (John Stein) without lawful authority.-II. That it was granted when the partners of the company were notoriously insolvent, and actually bankrupt, the said company being thereby dissolved.-III. That it was granted within 60 days of the legal bankruptcy of the individual partners of the said distillery company, and was not accompanied nor followed by a general accession of all their creditors.-IV. That the commissions of bankruptcy issued against the partners of the distillery company, qua partners of the Banking Company, were sufficient to extend over all their property, wherever situated. Against this action the trustees (Gibson and Brown) pleaded-I. That all the partners of the distillery company had acquiesced in the trust-deed; and the pursuers and their constituents had homologated it, by the resolution of the general meeting, on 9th September 1812, and the letter of 26th September.-II. That the distillery company was all along separate from the Banking Company, and was never legally bankrupt.-III. That the trust-deed was acceeded to by the creditors, in respect of the pursuer's letter of 26th September.-IV. Denied.

The Lord Ordinary, upon advising cases, pronounced an order on the parties to prepare a case for the opinion of English Counsel, upon the question

"Whether, on the supposition that the letters from Messrs Cuthbert, Smith and Duval, to the defenders, dated 26th September 1812, is held to import an authority to the defenders to settle with the distillery creditors in the capacity of trustees, and, of consequence, to be a homologation of the trust-deed to that effect, such authority is, by the law of England, binding on the creditors of Scott, Smith, Stein & Co., and on the present assignees, the pursuers of this action, reference being had to all the circumstances of the case, and in particular to the minutes of the meeting of creditors held upon the 9th of that month ?" Upon advising the case, with the opinion of English Counsel, the Lord Ordinary pronounced (31st Janu ary 1829,) the following interlocutor :

"The Lord Ordinary having resumed consideration of the revised cases for the parties, opinions of English Counsel, &c. ; Finds it proved, that by the law of England, the pursuers, as assignees of Stein, Smith and Co., acting for themselves and the creditors of the Company, had power to homologate the trust-deed executed by John Stein, in favour of the defenders, for behoof of the creditors of the distillery companies: Finds it proved by the documents produced, and facts admitted in proress, that the pursuer did homologate that trust-deed, to the effect of authorising the defenders to realize and distribute the funds of the distillery companies, and for that purpose to ascertain the claims against the companies, and to settle with the creditors: Finds, that the defenders are bound to account to the pursuers for their acting and intromissions, only in the character, and with the privilege of trustees under the said trust

deed; and therefore assoilzies the defenders from the reductive conclusions of the libel, and decerns," &c.

The assignees reclaimed, but the Court adhered, with expenses. The assignees then presented the present appeal, urging, in addition to the pleas maintained in the Court below-I. The appellants conceive, that, in the judgment pronounced, and now under appeal, the Court of Session have not sufficiently. attended to the nature of the proceedings, on the true merits of the question brought before them. Their decision has proceeded upon supposed equitable considerations, and upon what is stated by the respondents to be the extreme hardship of forcing them to account for their intromissions with the bankrupt estate in any other character than as trustees. Now, it humbly appears to the appellants, that the conclnsions of the summons of reduction, from which the respondents have been assoilzied, are not met by this view of the case, and that the original situation of the parties, when the action was brought, has been entirely lost sight of.-II. But the appellants deny that they ever homologated the deed under reduction, or that the respondents had any ground to think that they did so. flomologation depends upon intention, A right to reduce cannot be taken away by mere inference. It must be shewn by the party pleading homologation, that the act from which it is presumed, was done with the view of shewing, that all objection to the reducible deed was withdrawn and its validity admitted. An act doubtful in its nature cannot be viewed as an act of homologation. Mr Erskine says, "the approbatory acts must be so strong and express, that no reasonable construction can be put on them, other than that they were performed by the party from his approbation of the deed homologated; for no man is in dubio presumed to have an intention of obliging himself."-III. The points, then, which the appellants consider to be established by the force of the legal authorities and reasoning, which have been brought forward by them in the course of this discussion, are, 1st, That the trust-deed now under reduction was originally null and void, in consequence of the want of power in the granter; and 2dly, That there is no proof of any intention on the part of the assignees to withdraw their objections to its validity, and consequently to homologate its terms. It remains to be seen whether there is any thing in the equitable considerations which were urged to the Court by the respondents, and which have been sustained as the ground of the judgment.

Lord Chancellor.-My Lords, in advising your Lordships in this case, I feel relieved from all doubt in my own mind upon some of the more complicated questions that have been raised. I put out of view the last question referred to in the conversation that took place as to the matter of account. I put out of view all the subsequent transactions between the parties upon that account; and I put out of view the arguments urged by Mr Knight as to the action of multiplepoinding. I do not rest the judgment, which I am now about to advise your Lordships to pronounce, upon that argument, for reasons which it is needless for me to repeat. It is not decisive of the present question, and I put it out of view. I come now to what is evidently the foundation of this proceeding in the Court below, and which struck me as being the ground whereupon I think, alone, their Lordships rested, or could rest, in affirming this interlocutor, whe

ther I look at the Lord Ordinary's first interlocutor, or the judgment of the Court before which it was brought by review, or to the reasons given by the learned Judges who unanimously pronounced the judgment. I find the Lord President expressly admits-and it is the only reference to the point-that if the law of England, touching the power of assignees, were other, or should turn out to be other than it had been represented to him to be, it might alter the complexion of the case. My Lord Corehouse, as plainly and explicitly, and in terms, rests it upon the law of England. I have already stated the view I take of the power of this Court, which is both a Court of Scotch law and of English law-and of its importing into its decision of a Scotch question its knowledge-which it must take judicial notice of quasi as a Court of Appeal of the English law. No doubt, if it is a question entirely of Scotch law, the Judge, though ever so knowing in English law, ought not to suffer the English law, or the principles of it, to modify the Scotch law; and sitting here as a Scotch lawyer upon a Scotch appeal, he does an inaccurate, illogical and illegal act, if he permits his English law feelings or principles to sway him at all in the slightest degree in deciding a Scotch question: For instance, if a Judge, deciding upon the Scotch law of entail, which proceeds upon principles entirely different from the English law, was to allow-and I have seen it done in this place I grieve to say, I have seen it done by English lawyers now no moreif he was to allow his knowledge of the English law and its principles to come across his mind, and influence his judgment in pronouncing a decision upon the Scotch law of entail, he would do an inaccurate, an illogical, and I think, an illegal act. But the question is different here, where the English law is the question; where the question raised in Scotland was,- What says the English law? There it was a question of fact-there it was ascertained, as a question of fact must always be ascertained, by evidence; and that evidence coming from English statutes to the Scotch Court, and with the lights that they had, and the only lights that they could have, they would have done an inaccurate, illogical and illegal act, if they had allowed their minds to be prejudiced by any other representations than by the evidence of that law. But how stands the matter, when we come into the Court of Appeal, where some of the Judges are Eng. lish lawyers and Scotch lawyers? Is it not a refinement and subtlety to say, that they ought to draw a line in their minds, and say, though true it is, I know what the English law is-İ am here not as an English lawyer, but as a Scotch lawyer-I must paralyse one half of my mind, and throw it into a state of utter darkness, supposing there could be halves of a person's mind, or knowledge-I must only look to the light shed as to the English law in the mind of a Scotch lawyer. The mind is the same-it knows the English law. The Judge cannot dismiss from his mind what he knows the English law to be, and of which he is bound to take notice, not, as I explained before, to shed a deceitful and misleading light upon Scotch law, which is different; but where the only question is, what is the English law, he cannot shut out that judicial knowledge, and he is bound to know the law. That may be a consequence of having a question coming from a Scotch law Court by appeal, to a Court not composed of Scotch lawyers, but of English and Scotch lawyers. The civil law, to the common law Courts, is a foreign law. The ecclesiastical Courts act under that law.

The consistorial law is their code, as the statute and common law is ours, and we import the civil law, as a matter of fact, into our common law Courts. The practice, well known formerly, and often resorted to by the common law Judges, was, to write to the bishop or his officer, the official principal, who is, I believe, Doctor Lushington, or whoever it may be, to certify what, upon a certain point, the ecclesiastical law provides; and they are bound by that-that has been held as the rule of the Court. Then we will suppose there comes before the Court an appeal to make it like this case—there has been manifestly something wrong somewhere-Would not the Court of Appeal, consisting of common law Judges, with one civil law Judge, for instance the Court of Arches, which is a Court of Appeal from Doctor Lushington-Would not Sir John Nicholl, the Dean of the Arches, feel himself called upon to state to his brethren of the common law Courts, "all this is wrong?" Would

he not at once reject the subtlety interposed between them and a right decision, and say, Though true it is you are the consistorial Judges in this Court, as well as the common law Judgesthough true it is your minds are illuminated by all your knowledge as civil and as common lawyers-and though your chief office is to see that justice should be done, and prevent subtleties and technicalities leading to gross and manifest error, (and here because in a Court of the last resort, incurable injustice would be done, though that is your highest office in a Court of Appeal-it is still stronger, because here, nothing but the intervention of the law can alter it, and from the Court of Delegates there is a commission of review; yet in that which is not so strong, is it to be said they cannot get over the subtlety, and overthrow the obstacle attempted to be raised between them and justice?) Would not a Judge say in that case, I am both a civil lawyer and a common lawyer, and I will not listen to what I know, as a civil Judge of the civil law, to be a manifest error, which has been certified to the Court of King's Bench? No man can object to the Court of King's Bench, which, had not the light I have coming before me being bound by that, but I am bound to set that right; and that is one reason why civilians are put in that Court of Delegates, and that is the reason why this House is the Court of the last resort. Then, that being the only difficulty in the way-and I admit it not to be without some difficulty, and not an unargueable question-it was argued with great clearness by the Lord Advocate, and I have stated my view of it. That point being disposed of, there only remains to consider, whether that deed is invalid, which it is, upon the ground that it purports to bind the partners in their partnership concerns; but this was not any partnership businessand also, as being reducible upon the old Scotch Act—that is another ground. The Lord Ordinary presumes it was invalid, or it would not require homologation; and in fact, he puts it upon the homologation. Therefore, admitting it to be invalid by itself-Has it been homologated? I will assume it has, as far as the assignees had the power. But would they homologate any act of the force of a deed which they would not validly have executed? If they could not have executed the deed validly, could they give it validly, when it was invalidly executed, or could any other persons acting for them? That is so clear as to require no argument. Then, was it a deed? No, it was not, unless, ex parte, Whitechurch has ceased to be law, and unless all the law is wrong which has been established ever since I came into Westminster Hall, and which has always recognised er parte, Whitechurch; unless that is to be blotted out, and there be a new authority and a new law which I know not, and for which I look in vain (for that which is held law in first Athens, I am told, is groundless; but it has been acted upon and homologated, if I may use the expression, by the assent of all the Judges)—unless I am to invent a new law to get rid of that, I take it I am bound to act upon it; and acting upon that, I am bound to hold that the assignees had not power to homologate. I would therefore propose to your Lordships, in consistency with what I have now stated, that this cause be remitted to the Court of Session, with the instruction to which I have adverted: That they are to assume that the assignees had no power to homologate. They have proceeded upon the ground that they had the power-they are to be told that they had not the power-and let them proceed further as they should be advised.

Ordered accordingly.

Appellants' Authorities.-(1.) Erskine, B. III. 3, 20. Bell's Com. Vol. II. p. 615. Lumsden v. Gordon, November 1728. Dict. p. 576. Miller v. Douglas, 22d January 1811, Fac. Coll. (283). Struther v. Reid, 1st July 1803. Stein's Assignees v. Bank of Scotland, 20th January 1814. Selkrig v. Davis, 22d March 1814; Dow. Vol. II.

Respondents' Authorities.--Stein's Assignees v. Earl of Mar, 13th November 1827; Shaw. Cullen on Bankrupt Law, p. 229. Palmer and Others v. Hunter, 25th February 1825. Dickson and Co. v. Constable's Trustee, December 1828.

First Division.-Lord Ordinary, Corehouse.--Appellants' Solicitor, S. Hindman and Goddart.-Respondents' Solicitors, Moncrieff, Webster and Thomson.

This appeal arose out of a suspension and interdict against fishing salmon in the Beauly with yairs. The respondent, in virtue of Crown charters, is proprietor of the lands of Lovat and barony of Beauly, with the exclusive right of taking salmon in the river Beauly, "down to the sea." The respondent has also the privilege, with the other proprietors, of fishing in the estuary or Firth of Beauly, ex adverso of his lands. The appellant possesses the estate of Muirtown, on the banks of the said Firth of Beauly, on titles flowing from the appellant's ancestors in 1638, which contain the following words-" cum piscariis lie yairs," with warrandice, contra omnes mortales, and likewise in virtue of a Crown charter in 1783, which, inter alia, conveys to him the right, "et occidendi et captandi omnia genera piscium, tam salmonum quam," &c. Subsequent to the charter in 1638, the Lovat estates were forfeited; and thereafter, in consequence of a gift from the Crown, the authors of the respondent again acquired them. Opposite to the estate of Muirtown, in the Firth of Beauly, there were anciently two yairs for white fish, which had fallen into disuse and disrepair, and the appellant proceeded recently to reconstruct and use them. The respondent presented a bill of suspension and interdict; and after mutual condescendences and answers, the appellant pleaded,1st, Even supposing that the defender's yairs were to be held as one" set in waters where the sea ebbs and flows," in the sense of the statutes, and consequently as falling under the prohibition contained in these enactments, the respondent is not entitled to challenge them in facie of the grant of yairs contained in the charter 1638, warranted contra omnes mortales by Hugh Lord Lovat, the appellant's ancestor; and in the face of the description given in that charter of the northern boundary of the appellant's lands, viz. the sea "called the Roodpool and Fluddes, between the lands of Merkinch, and the said lands of Muirtown," the respondent is not entitled to contend against the legality of the appellant's yair, situated on that northern boundary, and say that it is not on the sea, but on the river, where the tide ebbs and flows, in the sense of the statute. The charter in 1638, warranted by Lovat's ancestor, operates as a complete bar to the present action at the instance of Lovat.-2d, Independently of the present action being barred by the charter 1638, the respondent has no title to pursue. The action on the statutes is not of a popular nature, and in order to authorise such an action as the present, it is necessary to produce a sufficient title. The grant of salmon fishing on which the respondent founds, is applicable merely to the lordship of Beauly or Lovat, and gives right to fish only in the river Beauly" down to the sea," by which last appellation is meant Loch

Beauly, as explained in the titles; and that grant does not give any right of salmon-fishing in the loch itself. -3d, The geographical situation of the appellant's yair is not such as to bring it within the prohibition of any of the statutes against cruives and yairs. Loch Beauly, ex adverso of the appellant's yair, is completely salt, and has nothing in common with a river. It has been decided, that yairs in the sea are not contrary to statute.-4th. The decisions in the Tay cases do not affect the situation of the appellant's yairs, as Loch Beauly differs entirely in its geographical character from the Tay. The fishings in these cases are described as river fishings, while the appellant's titles describe his as fishings in the sea.-5th, Whatever effect statutes may have on Loch Beauly, the appellant is entitled to use his yair, in respect that the neighbouring and opposite proprietors, especially Lovat and his predecessors, have used yairs in exactly similar situations. The respondent answered,-1st, That he does not represent the persons who granted the charter of 1638, in respect that the estate was afterwards forfeited, and has been subsequently acquired by the respondent and his authors in virtue of a gift from the Crown: That stake-nets, and a fortiori yairs, form illegal machinery for killing salmon, in all situations. At all events, they are so, except on the shores of the ocean, and are particularly prohibited in rivers and estuaries.-2d, Stake-nets within rivers and estuaries, where the sea ebbs and flows, are illegal from the source of any such river or estuary down to the fauces terræ, at the mouth of such river or firth, as well as upon sands dry at low water.-3d, A proprietor, with the utmost possible right to yairs, is not entitled to change the nature and character or condition of that sort of fishing, to the prejudice of others.-4th, No grant of salmon fishing by yairs is effectual; and it is even doubtful if such could be confirmed by prescriptive possession. Lord Mackenzie pronounced the following interlo

cutor:

"21 June 1829.-The Lord Ordinary having heard parties' procurators, and thereafter considered the closed record, and whole process, Finds, that the suspender has a sufficient title to complain of the yair erected, or proposed to be erected by the respondent, in case it shall appear that the said yair is in, or is proposed to be placed, not in the sea, but in the river Beauly; and appoints the cause to be enrolled, that an order may be made for trying the question, whether the place of the said yair, or proposed yair, be in the sea or not.”

To the above interlocutor his Lordship attached this note :

"The Lord Ordinary is unable to see any ground of doubt that a yair in a river is even more clearly illegal than a stakenet; stake-nets being not expressly prohibited, but held illegal, because equivalent to yairs, which were expressly prohibited. Nor can he see evidence of a dispensing power in the Crown of Scotland, from public statutes, such as could render yairs in rivers legal by Crown charter. Nor can he admit prescription, or special custom, against general statutes which are still in vigour. If, then, this yair was in the river Beauly, he considers that it was illegal; and, if it was illegal, any warrandice in a grant of it was pactum illicitum, and utterly null. The Lord Ördinary does not think that it could be pleaded, even in bar of the right of the granter to enforce the statute, still less in bar of the right of the present complainer, who cannot represent him in a pactum illicitum. It would be particularly difficult to derive such a representation, through the Crown, by a gift of forfeited

estates.

The Lord Ordinary was averse, at first, to pronounce the above judgment, in consequence of the case of Dumbarton. But, as he does not find that the Court held that case to be undoubted law, he does not think himself at liberty to rest upon it, in the face (as it seems to him) of the statutes.'

Both parties reclaimed; and the Court, on 13th November 1829, pronounced this interlocutor :

"Find that the suspender has a sufficient title to complain of the yair erected, or proposed to be erected by the respondent, on the suspender's instructing that it is so situated as to fall within the prohibition of the statutes made as to the fishing of salmon; and, with this variation, they adhere to the Lord Ordinary's interlocutor reclaimed against; and remit to the Lord Ordinary to proceed farther in the cause, as to him shall seem just."

Against this judgment Duff appealed, urging, in addition to the pleas before mentioned-1. That the interlocutor of the Court was wrong, because it proceeded on the ground, that no right of salmon fishing whatever was conveyed by the charter 1638, while that right was thereby conveyed under the word piscaria, which anciently carried all sort of fishings.— II. The respondent represents the persons by whom the charter 1638 was granted and warranted, and is bound by it.-III. The present is not a popular action for the public interest, but a private one for the appellant's own patrimonial interest, to pursue, which requires a proper title. And no pactum illicitum was intended, or created by the grant in the charter.IV. The Court has left a question of law, not of fact, for the decision of a Jury. The respondent answered, in addition-I. His title to challenge. the operations complained of was complete, by the union of vested right and patrimonial interest. -II. The charter 1638 does not convey a right of salmon fishing; the words are, cum piscariis," not cum salmonum piscationibus."—III. The warranty in the charter was a pactum illicitum, and therefore null.

66

66

Lord Chancellor.-My Lords, in this case, as I am humbly about to submit a proposition to your Lordships to affirm the interlocutor appealed from, I shall not detain you by any observations other than I have thrown out already during the argument upon the point. I have no doubt that the Court of Session have come to a sound conclusion; and I cannot help regretting that the appeal was not presented in an earlier course, and not gone into in the Court below. I do not wish to throw out my opinion upon the acts, (upon which I have no doubt,) except in so far as my opinion might influence their judgment, and prevent an useless appeal. If the Court of Session shall find that a yair in a river was prohibited by the acts, by whatever means it has become a river yair, I shall not quarrel with that construction. I say nothing about costs, as there is some little doubt upon the subject.

The Lord Advocate.—The judgment of the Court below rendered it necessary.

Dr Lushington,-The judgment of the Court below was unanimous, and the parties prayed for leave to appeal, having no right to appeal.

Lord Chancellor.—They had no right to appeal, if it was unanimous; but the Court having given leave to appeal, appears to me a strong argument against my giving costs against them. It shews that the Court were not so decided as to think they ought to refuse the leave to appeal.

Interlocutor affirmed.

Appellant's Authorities.-Chisholm v. Fraser, 17th June 1801; Mor. App. Earl of Kintore, 31st May 1826. Magistrates of Dumbarton v. Graham and Morrison, 16th June 1815. Forbes v. Udney, 3d December 1701; Fol. Dic. Vol. II. p.

360; Stair, II. 3. 7. Duke of Atholl v. Maule, 4th Febru ary 1817; Acts 1424, c. 11; 1477, c. 73; 1488, c. 16; 1563, c. 68; 1581, c. 3; 1685, c. 20.

Respondent's Authorities.-Earl of Kinnoul and Others, v. Hunter and Others, 26th January 1802. Duke of Atholl, ut supra, and 7th March 1812; Acts 1488, c. 16; 1563, c. 68; Ersk. II. 3. 31.

Second Division.-Lord Mackenzie, Ordinary.-Richardson and Connell, Appellant's Solicitors.-Andrew M. M'Crae, Respondent's Solicitor.

25th February 1831.

No. 278.-WILLIAM BRACK, Appellant, v. ADAM HOGG,
Respondent.

Delivery Trust-Deed-A person, a native of Scotland, having executed a trust-disposition in Jamaica, settling his heritable property in Scotland, declaring that his trustees should convey the property in terms of his will or separate writing, to be afterwards made out; and the said disposition having been executed according to the law of Scotland, but containing no clause dispensing with delivery, or power to revoke; and having some months thereafter executed a last will according to the law of Jamaica, leaving his lands, houses, &c. to his nephew; and neither of the said deeds having been delivered at the truster's death-Held, affirming the judgment of the Court of Session, that the trust-deed did not require delivery to render it valid; and that the will was an effectual declaration of the truster's intention as to the heritable property.

The late Daniel Virtue, who died in December 1823, was a native of Scotland. He left some lands and houses in Berwickshire, and considerable property in Jamaica. With the view of settling his affairs, he instructed his law agent in Scotland to transmit him a trust-disposition, framed in terms of the law of that country. This was done. And the deed, which was executed on 30th April 1822, bears, that he,

"having entire confidence in the trustee after named, for executing the trust reposed in him, did, by these presents, dispone, assign, convey, and make over, to and in favour of George Johnston, farmer in Yetholm Mains, in the county of Roxburgh, North Britain, and his heirs and assignees, as trustee, for the uses and purposes after-mentioned, All and Whole that mill situated near Earlston, and piece of ground adjoining there to, formerly occupied by Mr Hogg as a spinning mill; and All and Whole these houses and yards, &c.; as also All and Whole that piece of plough land, &c., with all right, title, and interest, I, my predecessors, and authors, heirs, and successors, had, have, or may have, to the said subjects; but declaring always, that these presents are granted by me, and accepted of by the said George Johnston, in trust, for the ends and purposes following, viz. In the first place, he shall account to me for the rents and profits thereof during my life; and in the second place, at my death, he shall assign and dispone the whole premises to such person, or persons, as I shall specify and name in my will, or by any separate writing or letter to that effect; and it shall be sufficient to my said trustee to dispone the same accordingly, although such writing or letter hath not the legal solemnities of a deed. In the which lands and others above disponed, I bind and oblige me, my heirs and successors, duly and validly to infeft and seise my said trust-disponee and foresaids, to be held," &c.

Then there follow a procuratory of resignation and precept of sasine in the usual terms. The deed was duly tested according to the rules of the law of Scotland. It contained no clause dispensing with the delivery, nor any clause reserving power to revoke; and it was not delivered. On 14th February preceding his death, Mr Virtue executed a last will, according to the forms of the law of Jamaica. By

this deed he revokes all wills formerly made, and he then bequeaths sundry legacies to his natural children, and other connections, and, in particular, he leaves to the appellant, Mr Brack, an annuity of £30 during life. The will then contains this clause :

“Item, I give and bequeath to my nephew, Adam Hogg, the residue and remainder of my property, real, personal and mixed, consisting of lands, houses, &c. in Berwickshire, Great Britain, and of Roxburgh Castle, with the slaves, stock, &c. in this island, he paying therefrom, should my monies be insufficient, the legacies of my reputed sons, John Virtue and William Brack, and make good all the other legacies, and pay my just debts, if any."

This last will and the trust-disposition were found in Mr Virtue's repositories in Jamaica, at the time of his death. And the latter having been forwarded to Mr Johnston, who acted as Mr Virtue's factor in Scotland, he took infeftment on it in September 1824, and immediately conveyed the property to Mr Hogg, in terms of the will. Mr Hogg was afterwards infeft, and his right was confirmed by the superior. In October thereafter, the appellant, the nephew of Mr Virtue, raised a reduction of the trust-disposition, sasine and last will, on these grounds:-1st. The usual ground of defect in legal solemnities.-2d. The foresaid alleged gratuitous disposition, executed by the said Daniel Virtue in favour of the said George Johnston, was neither a complete deed, nor was it delivered by the said Daniel Virtue, but remained in his custody, and was at his absolute disposal, and under his controul, till the day of his death, which happened upon the 16th day of December 1823, and is otherwise null and void.-3d. The said gratuitous and undelivered trust-disposition, granted by the said Daniel Virtue, was, besides, completely revoked and set aside by the foresaid testamentary deed, executed by the said Daniel Virtue upon the 14th day of February 1823 years, by which he expressly revoked all the other wills which he had previously made. The fourth reason of reduction was, that the foresaid testamentary deed, executed by the said Daniel Virtue, upon the said 14th day of February 1823, in so far as it gives and bequeaths to the said Adam Hogg, the testator's heritable property situated in Great Britain and in Jamaica, is null and void; it is destitute of all the solemnities and requisites which, by the law, are necessary for the conveyance of heritable property; and, in particular, it is neither holograph of the granter, nor does it express either the place of signing, or the name and designation of the writer, or the names and designations of the witnesses present on the occasion when it was alleged to have been subscribed; and, besides, the properties bequeathed by it are neither properly described nor sufficiently pointed out.

On 12th November 1825, this interlocutor was pronounced:

"The Lord Ordinary having considered this memorial for the pursuer, with the counter-memorial for the defenders, and whole process, Finds, that on the death of the late Daniel Virtue of Vere, in Jamaica, which took place on 16th December 1823, there were found in his repositories, two deeds; the first, a trust deed, dated 30th April 1822, executed in Jamaica, but, according to the law of Scotland, disponing, with procuratory and precept, certain heritable subjects in Scotland, in favour of the defender, George Johnston, for uses and purposes; and these are declared to be, 1st, to account to him for the rents

during his life; and 2dly, at his death, to dispone them to such person as I shall specify and name in my will, or by any separate writing or letter, although it shall not have the solemnities of a deed.' The second, a will executed on 14th February 1823, according to the forms of the law of Jamaica, but not tested according to the law of Scotland, which has this clause:-Item, I give and bequeath unto my nephew, Adam Hogg, Jamaica, the residue and remainder of my property, real, personal, and mixed, consisting of lands, houses, &c. in Berwickshire, in Great Britain:' Finds, that the trust-deed contains no clause dispensing with delivery, which, indeed, would have been inconsistent with the first and prominent object of the deed; and that the will makes no reference to it as a subsisting deed, or one which was then operative, or which it was to render operative, by declaring its uses and purposes: Finds it admitted, that the trust-deed was not delivered to the trustee in the lifetime of the truster, but that it remained in his custody and under his controul, till the day of his death: Finds, that the trust-deed can have no effect, not having been a delivered deed, nor the delivery dispensed with by the maker of it; and therefore, that it is necessary to consider whether, if it had been an effectual conveyance of the heritable property into the person of the trustee, the will being a deed not tested according to the law of Scotland, would have been held to be a sufficient deed of instructions to the trustee, to make over the heritable property to the defender, Hogg: Finds, that the will is quite inoperative of itself to convey the said heritable property to the defender, as it does not contain disponing words; and therefore sustains the reasons of reduction at the instance of the pursuer, the heir-at-law; and reduces, decerns and declares, in terms of the reductive conclusions of the libel: Finds no expenses due; but the Lord Ordinary allows the defenders to give in a representation against this interlocutor, if they shall be so advised."

"Note. The ground upon which the heir-at-law has been preferred, being different from those pleaded in the elaborate memorial for him, the Lord Ordinary is willing, if the parties incline, to review the interlocutor, in a representation, which, by section second of the Act of Sederunt passed this day, he is empowered to authorise."

On 17th June 1826, the Lord Ordinary adhered to this interlocutor, and added this

"Note.-The Lord Ordinary still entertains the opinion that the trust-deed required delivery to make it effectual, as it was obviously intended to be delivered immediately, since it autho rises the trustee to uplift the rents in the truster's lifetime, and calls upon him to account for them to him. Its never having been delivered, implies a change of purpose, or that the purpose was not fully resolved on; and there is nothing to indicate that the second purpose of the deed was finally resolved to be carried into effect, when the other was not. In his latter will, the testator has not once alluded to it; and as it was not transmitted to this country at first, along with the will, it would appear that the testator and his executor had not regarded the trust-deed as influencing his succession. If the trust-deed were to be held effectual without delivery, and if it were necessary to form an opinion on the pleas still argued so anxiously by the pursuer, the Lord Ordinary does not think he could concur in opinion with the pursuer, that the trust-deed was revoked by the will, or that the will would not have been a sufficient declaration of the purposes of the trust, on the ground that it did not bear express reference to it, assimilating this to the exercise of a reserved faculty to burden. But he would have been inclined to hold that the will, not being tested according to the law of Scotland, was not sufficient to have the effect of conveying Scotch heritage from its legal destination. This is a point of great difficulty, and may be considered, perhaps, as not thoroughly settled; but the Lord Ordinary remembers well the very decided opinion of Lord President Blair, delivered in the unreported case of Lang and Whitelaw, 18th November 1809. The Lord Ordinary avoided the decision of this difficult question, by holding the trust-deed ineffectual from want of delivery."