of obtaining the opinion of the Court of Session on the construction of the above deeds.

It was contended on the part of Lady Montgomery, that her intention, as expressed in the deeds above-mentioned, extended only to the appropriation of the surplus rents of her estates for a period of five years; and that although, at the expiration of that period, these surplus rents proved insufficient to liquidate these debts, Lady Montgomery's obligation was at an end. On the other hand, it was maintained by the creditors, that Lady Montgomery's obligation was not restricted to a period of five years, but that, by the terms of the deeds, the Commissioners were bound to apply the surplus rents in liquidation of the debts till they were satisfied. It was further contended by Lady Montgomery, that the deed of commission and relative assignation, executed by her in favour of the Commissioners, bore express reference to, and were founded on the calculations contained in the state and minute framed by her advisers, which contemplated the extinction of the debts in five years; and that the obligation being purely gratuitous, was to be favourably interpreted for the granter. Answered for the creditors-If Lady Montgomery had intended to restrict her obligation to a period of five years, she would have inserted in the commission a limitation to that effect; but the commission is expressly declared to continue so long as the object continues unanswered, namely, the extinction of the debts; neither is there any limitation in the assignation to these Commissioners of the period. for which they were to hold the lands assigned, except the period of the extinction of the debts in toto. Lord Ordinary, Gillies (15th February 1822), pronounced an interlocutor, containing, inter alia, the following findings:

"Finds, that Lady Montgomery having succeeded to nothing by the death of her husband, and representing his Lordship no otherwise than having been confirmed his executrix qua relict, was not, in any respect liable for the payment of his debts, in so far as the same exceeded the amount of his funds: That the estimated amount of Lord Montgomery's debts, on the one hand, and the amount of the rent of her Ladyship's estate, on the other hand, formed the basis of the arrangement agreed to by the memorialist (Lady Montgomery); And finds, therefore, that if it appears from the minute (upon the information in which the arrangement was entered into,) that the memorialist at the time laboured under any material error as to any one, or both of these points, and was misinformed or mistaken, either as to the amount of Lord Montgomery's debts, or with respect to the amount and permanency of her own rental, the obligation undertaken by her must be limited and restricted accordingly: Finds, that in the minute it is assumed, as a ground for the proposed arrangement, that, setting aside the sum received by her Ladyship, the free rent of the estate, together with the other funds allotted to the same purpose, would be sufficient in five years to discharge the debts: Finds it stated, that, owing to the depression in the value of landed property and its produce, the rents actually recovered during the five years immediately subsequent to the date of the minute and commissions, fall greatly short of the rents which were payable, or which the estate was calculated to yield, at the period when the arrangement was agreed to: Finds that, notwithstanding this change of circum. stances, the creditors insist that they are entitled to the free surplus rents, not for a period of five years, but for a period altogether indefinite, viz. until such time as those rents, together with the other funds before mentioned, shall be sufficient to pay Lord Montgomery's debts, to the extent of £100,000, as calcu

lated at the date of the minute, with interest from that period: Finds, that such a claim, on the part of the creditors, is inconsistent with what must be presumed to have been the understanding of parties at the period when the arrangement in question was made: Finds, that the obligation undertaken by Lady Montgomery will be sufficiently implemented by her Commissioners making payment, as she proposes that they should do, to the creditors, of the whole free rent which they received, or which, consistently with the rules of good management, they might have recovered from the estate, deducting the sum received by the memorialist, for the period of five years posterior to the commencement of their possession under the commissions, the Commissioners also accounting to the creditors for the price of the property which was sold to the late Lord Eglinton," &c.

This interlocutor having been adhered to by the First Division of the Court, the cause was appealed, and the House of Lords (11th March 1825), pronounced a judgment, finding,

"That under the commission, bearing date the 16th day of July 1814, and the deed of obligation and assignation, bearing date the 10th day of October 1814, the said Commissioners are bound to apply the rents of the estates mentioned therein, after making payment of the sum therein mentioned to Lady Montgomery, and of the other sums and expenses therein provided for, in discharge of the debts due from the late Lord Montgomery, until thereby, and with the other funds mentioned in the foregoing instruments, the same debts shall be paid and extinguished: It is therefore ordered and adjudged, that so much of the said interlocutors complained of in the said appeal, as is inconsistent with the above finding, be, and the same is hereby reversed: And it is further ordered, that the cause be remitted back to the Court of Session in Scotland, to do therein as shall be consistent with this judgment, and as shall be just."

When the cause returned to the Court of Session, it was maintained by the creditors of Lord Montgomery, both those by bonds and bills as well as upon open accounts, that they were entitled to the full principal of their debts and interest, from 16th July 1814, the date of Lady Montgomery's obligation, in terms of that obligation, and of the judgment on appeal. On the other hand, Lady Montgomery contended that her obligation did not extend to the payment of interest; that the debts which she undertook being those of a defunct, whose funds were deficient, the currency of interest was necessarily stopped upon these, as in other cases of death and bankruptcy. The Lord Ordinary, by an interlocutor, 25th February 1829, found, inter alia,

"That the claimants are entitled to be ranked upon the fund in medio, for the interest due to them upon such debts as were constituted by bonds or bills; but that the claimants, who are all English creditors, are not entitled to interest upon the debts which were due to them by open account, which it is admitted do not bear interest by the law of England, &c.; and, in respect to a motion made by the claimants for expenses, finds it competent to award to them the expenses incurred by them in this Court, before, as well as since the appeal to the House of Lords; but finds that, in the circumstances of the case, they are not entitled to the expenses incurred by them in this Court, previous to the appeal: Finds Lady Montgomery and her husband, Sir Charles Lamb, liable to the claimants in the expenses incurred by them, from and since the 13th May 1825, being the date of the interlocutor applying the judgment of the House of Lords,"

&c.

Against this interlocutor, the parties having reclaimed, cases were ordered. On advising which, this interlocutor was pronounced by the Court:—

“12th January 1830, Recal the whole of the findings respecting the expenses in the interlocutor of the Lord Ordinary com

plained of; and, quoad ultra, adhere to the said interlocutor : Find no expenses due to either party, and refuse the reclaiming note for Messrs Rundell, Bridge and Rundell, and others; and, under the above alteration, Refuse that for Lady Montgomery and Sir Charles Lamb."

Lady Montgomery and Sir C. Lamb appealed against the above interlocators, in so far as the creditors were thereby found entitled to be ranked on the fund in medio for interest, and in so far as the appellants were not found entitled to expenses. The respondents entered a cross appeal, craving expenses from the commencement of the competition. The same reasons were urged as in the Court below.

Lord Chancellor.-My Lords, this is a case of very considerable importance. I did for a time entertain a doubt on one point raised by the learned counsel for the appellants; but, no longer feeling that doubt, I will state shortly the grounds on which I deem it my duty to advise your Lordships to affirm the judgment appealed from, on both points. The questions arise out of these facts:-Lady Montgomery, on the death of her husband, came forward, and placed her considerable estates under a course of management, restricting herself to a very moderate share, specially for the purpose of discharging a pious duty to the memory of her husband, by the payment of his large debts. The first question is,-Whether that deed shall be so construed as to impose upon her the obligation of paying the interest on certain debts allowed by the interlocutor, as well as the principal, which was disallowed by the first judgment of the Court of Session, and afterwards imposed upon Lady Montgomery? If the first case had stood over for the decision of your Lordships, which was decided some years ago in this House, reversing the former judgment of the Court below, I should have felt much of that doubt and difficulty with which the Court below appears to have been pressed on behalf of Lady Montgomery; but, after the decision of your Lordships, which does not appear to have done more than called upon the Court below to go into the view of that case taken in that judgment, but which does not appear to have materially altered the opinion of the very learned Judges whose decision was then reversed, Lady Montgomery's obligations were of a nature which, when taken all together, appear to have raised a very fair doubt how far she bound herself beyond the strict terms of the arrangement made. Nevertheless, upon the whole, though I did entertain some doubts, at first, which are not very material to the consideration of the present question, as that question has been disposed of,-I think, upon the whole, the balance of my opinion would have been in favour of the judgment which your Lordships were advised to pronounce by a late noble and learned friend of mine, whose loss to this House, as well as to Westminster Hall, there is very great reason to deplore—I mean the late Lord Gifford; for the words of this deed are very strong, admitting an unlimited construction of the obligation. The minute says, the remainder of the rents of her Ladyship's estates, beyond a certain sum, are "to be applied towards the extinction of the balance of the debt. It is calculated that the debts may, in this way, be all discharged in the course of five years, including the expenses necessary for carrying the arrangment into execution." Then come a commission, deed of obligation, and assignation-all of which, being parts of the same transaction, are to be considered as parts of the same instrument-for the purpose of effecting the object contemplated; and your Lordships find that the words are, after restricting herself to £5000 ayear, applying the remainder of her rents" towards the gradual payment and extinction of the foresaid debts-all as mentioned and contained, so far as the circumstances are at present known, in a statement and minute subscribed by me, of this date." So that your Lordships see they make a calculation only so far forth as they knew the circumstances-so far forth as they can estimate the amount of the debts that is taken to be the amount; and to that amount the appellant, by her obligation, refers, and without, I think, by any means in soundness of construction, binding herself down to the very sum contained in that statement. The words are very material: "So far as the

My

circumstances are at present known, in a statement and minute subscribed by me, of this date, and bearing reference hereto; providing always, that the same commissioners shall be bound to hold just count and reckoning to me for their respective transactions and intromissions, in virtue hereof; and, lastly, I hereby declare that this commission shall endure and continue until the foresaid powers are accomplished, so far as concerns the payment and extinction of the foresaid debts." The word "foresaid," and the reference to the balance, and the words, "so far as the circumstances are at present known," are urged on the one side, to apply to the words, "towards the extinction of the foresaid debts-an account and list of which is to be taken and made up by my said commissioners, so soon as the same can be properly investigated," (the account to be taken and made up by the commissioners so soon as the same—that is, certain expenses-can be investigated,)" until those debts are fully paid and discharged." Upon these grounds, upon the whole, I lean to the opinion expressed in the year 1825, by this House; and that, I think, almost disposed of the present question; because, if interest is due upon these debts,-upon the specialty debts,-in England, and, by the custom of merchants, upon promissory-notes and bills of exchange, in Scotland, the question is only, Whether those debts come under the obligation herein contracted-within the scope of this instrument—or of these three instruments taken as one?-whether, under these particular instruments, specialties, which mercantile instruments, such as promissory-notes or bills of exchange are, do not come with their interest as well as the principal-the principal being disposed of in the former cause, the interest only remaining to be dealt with at the present time?-and the question being, Whether that interest does not come within the scope and meaning of the obligation into which this Lady, so honourably to herself, entered, by which she engaged to pay? On these short grounds, and on others which I mentioned to the learned counsel for the appellants, the last time this cause was under hearing, I am of opinion, that the Court below was right in giving the interest upon these particular kind of debts. Lords, I was extremely moved, certainly, by the argument pressed upon the House by Mr Tinney, and which was an original view of the subject, taken here for the first time;-for it must be admitted, that it had not been mentioned in the Court below; and I requested, upon that ground, that your Lordships would postpone the consideration till to-day, that the counsel might apply themselves to that point;-they have confined themselves strictly to that point, and have addressed their arguments to Mr Tinney's very ingenious argument—and they have, in my opinion, displaced his position, and it ought not to operate to induce your Lordships to reverse the decision. Throughout the whole of the instruments are to be found the word "debts," or some word amounting to debts. Then, says Mr Tinney, the question is, Shall interest be given for those debts? This is an English question-strictly an English question; for it is by the creditors residing in England that the criterion is to be taken, and is so laid down in Scotland. On all hands, it is admitted that the claim of interest, on simple contract debts which are not privileged, is to be rejected; because, though followed in Scotland, no interest is due in England. I wish it were otherwise in England; for, where there is a large sum,-£10,000, for instance,-the interest, amounting to £500 a-year, will bear the expense of a long litigation; and the parties, keeping their money in their own hands, will thus be enabled to support the cause; but that is the law. The question is, Whether, by the English law, this would be allowed? and if so, it is allowed by the Scotch Court; and if not so allowed by the English law, it is not allowed by the Scotch Court. Now, Mr Tinney says, that the interest is not part of the debt, and cannot be proved under a commission of bankrupt; and for that he refers to the case of ex parte Marlar, in 1. Atkyns, 150, and Cameron v. Smith, in Barnewell and Alderson, which is not the first case, in a Court of common law, proceeding on the principle sanctioned by Lord Hardwicke, in ex parte Marlar; for that had been referred to in the Court of Common Pleas. In those cases, it is held only that you cannot add the interest to the principal, on a promissorynote, to make up the hundred, or hundred and fifty, or two

I

hundred pounds, necessary to constitute a petitioning creditor's debt, in suing out a commission of bankrupt, according as there may be one, two, or more creditors. Now, on what does that rest? It is, that interest is not a debt, in the strict legal acceptation of the word debt; but it is damages given for the detention of that debt; and as, at law, the debt must exist, and be a hundred pounds debt, or a hundred and fifty, or a two hundred, as the case may be, that must be a debt, and not damages, for detention of that which is strictly and exclusively called debt. But the bankrupt law is a creation of the statute; the whole arrangement of that law arises out of, and is bottomed in the express provisions of an Act of Parliament; and so nice is the distinction taken in construing that act, by the Courts of common law in England, on the subject of the petitioning creditor's debt, that the strongest equity a man can have against his debtor, shall not endure to the extent of including interest to make up the amount of the petitioning creditor's debt. So, a man may be bound in equity to pay me a thousand pounds upon a bond; and yet I have no power of taking out a commission, unless I have a legal remedy. This is sufficient of itself to constitute a broad distinction between the case relied on by Mr Tinney and that now at the Bar; for it is perfectly clear that the Court of Session, being a Court of Equity as well as a Court of Law, is bound as such to put the construction which equity requires on the word, debt, just as a Court of Equity, assisting to give a party equitable relief, here would give. think your Lordships, therefore, are brought back to the fair construction of the word "debt;" for we find "the debt""the extinction of the debt"-" the liquidation and extinction of the debt"-is the object of this arrangement, according to the various words used in these instruments; and if you find that there is nothing to exclude from the scope of these expressions that which is undeniably due from Lord Montgomery to his creditors-that which constituted the claim of his creditors against the estate of Lord Montgomery-that which his creditors would have claimed against Lord Montgomery's estate, if that estate had been under the administration of the Court below-The question is, Whether or not Lady Montgomery did not, by these instruments, (construed as your Lordships were disposed to construe them, as to the principal, and not construed by that particular argument, unsuccessfully contended to be the true meaning of the obligation she contracted)—or had it not in contemplation to put herself in the place of her deceased busband, with an arrangement to stride itself over a considerable period of time, uncertain, in some measure, as to its extent, but as long as those debts-the debts due from her late husband, the debtor, and for which he would have been liable if he had continued-existed?-whether she did not mean to put herself into his shoes, (if I may so express myself,) bound by his obligation? Now, there cannot be the slightest doubt, that, in these cases, both as to the specialties and as to the privileged instrument, of a mercantile nature, he would have been liable to interest as well as principal, though not recovered under the technical meaning of the word, debt; but in an action on debt due, it would have been recovered under a separate head; and, with that technical nicety which the law raises in this country, it would have come within the general description of his obligation, and would have been that which he was bound to pay, the principal being strictly the debt, but the interest being equally within the scope of the obligation; because it is an obligation upon her to pay that interest until the principal shall be satisfied. My Lords, Mr Tinney's argument, it is admitted, is only to bills of exchange and promissory-notes-and I pressed upon him that distinction. I was not aware at the time that that distinction is also taken in Cameron v. Smith; for there the Court held that the argument did not apply to penalties on a bond. It, therefore, is clear, that all which remains is, to consider how far the argument holds, when it comes to be thoroughly sifted, as to promissory-notes or bills of exchange; and for the reasons I have already stated, I think that it does not apply to this case. The argument which was so ably presented, certainly, for a time, made an impression upon my mind, and that of another noble Lord, who, at that time, felt as I did upon the subject; but on further consideration, I feel that I must dismiss it from this case, and that it is my duty now to offer my humble

advice to your Lordships to affirm the judgment. My Lords, I shall not advise your Lordships to say any thing against the interlocutor refusing the expenses. I shall certainly be disposed to advise your Lordships to affirm the whole of the interlocutors. It is a case, undoubtedly, of no little hardship. The conduct of this Lady was above all praise. She has clearly made herself liable to expenses, which she was little aware of at the time. It is very likely she did not intend to bind herself to the extent to which the House of Lords, reversing the first judgment, has held her liable; and it is quite clear that the amount goes very far beyond her calculations, and that she must be placed in a situation of no little hardship. Upon these grounds, I should not advise your Lordships to allow any costs of this appeal.

Interlocutor affirmed.

First Division.-Lords Gillies and Meadowbank, Ordinaries. -Alexander Mundell, Appellants' Solicitor.-Moncreiff, Webster and Thomson, Respondents' Solicitors.

25th March 1831.

No. 335.-FLORA MACKAY, Appellant, v. J. G. DAVIDSON AND R. S. WILSON, Trustees of MRS ELIZABETH CAMPBELL or MACKINNON, & ALEXANDER MACKINNON CAMPBELL, Respondents.

Incapacity-Death-bed-Reduction—A person given up to morbid habits of intoxication, having executed a settlement to the prejudice of her heir-al-law, and having died seven days thereafter-Held, affirming the judgment of the Court of Session, that the deed was not reducible on the head of incapacity or death-bed.

On 6th December 1822, Mrs Mackinnon executed a trust-deed and settlement in favour of Hugh James Rollo, whereby she disponed, assigned, and conveyed to him, and his heirs in trust, the lands of Ormaig and Blairintibbert, and her whole moveable estate, for the following purposes:-1. The payment of her debts and expense of management. 2. The payment of a legacy of £500 to Mrs Alexander Stewart or Macleod—of £500 to the said H. J. Rollo—of £200 to Mr Rollo's clerk, &c. 3. She left her body-clothes and trinkets to the said Mrs Stewart or Macleod. 4. She bequeathed the residue of her personal estate to Alexander Mackinnon Campbell, a natural son of her deceased son John. 5. She directed her trustees to convey her heritable estates to the said Alexander Mackinnon Campbell, under the fetters of a strict entail; and failing him and his heirs, and a James Mackinnon and his heirs, to Norman Macleod, eldest son of the said Mrs Stewart or Macleod. Mrs Mackinnon died on the 13th of December, seven days after executing this deed. In October thereafter, Major Alexander Mackay, as her heir-at-law, brought an action. before the Court of Session, against Mr Rollo, for having that deed reduced on the head of death-bed and incapacity. In support of this action he averred

That at the time Mrs Mackinnon executed the said trust-deed, she had contracted the disease of which she died; or, at least, she was labouring under the disease from which she never recovered, and which caused her death: That she was confined to her bed by a morbid irritability of the whole system, accompanied by inflammatory symptoms of a mortal character, occasioned by habits of intoxication at the time she executed the deed, and from that time never left her room or bed: That the deed was prepared without instructions from her, when she was unable,

from mental and bodily suffering, to give such instructions, or to revise the deed before it was extended, or to understand the import of it before it was subscribed: That at the date of the execution of the deed, she was so much debilitated as to be almost unable to hold the pen; and when she was in such a state of mental imbecility, through disease and constant intoxication, which rendered her totally incapable of managing her own affairs, or executing any valid deed. Mr Rollo admitted, that the deed was executed on the 6th of December, and that Mrs Mackinnon died on the 13th of the same month, and that, in of the recent death of her last survivconsequence ing son, she was then in some distress of mind. But he denied that, at the date of the deed, she had contracted the disease of which she died, or that she had contracted any disease for four or five days after the date of the deed. The other allegations he denied. On 9th July 1824, a proof was allowed to both parties. Several witnesses were examined on both sides. Mr Rollo, thereafter, tendered himself as a witness; and, in order to obviate objections to his admissibility, he renounced his legacy-assumed the respondents as trustees, and renounced the office; but he was shortly thereafter lost in the Comet steam packet, and was never examined as a witness. Major Mackay rested his case principally on the following witnesses:-Ann Donaldson, who was in Mrs Mackinnon's service from Whitsunday 1822 till the 13th or 14th of November, thereafter deponed,

"That for some weeks before Mrs Macleod (a legatee) came there, Mrs Mackinnon was quite correct in her habits: That, on the Sunday night of her (Mrs Macleod's) arrival, she filled her quite drunk, and she kept her so, all the time the witness was in the house: That she recollects that Mrs Mackinnon was very much the worse of drink on the day of Captain Mackinnon's death: That she was lying on the side of his bed on that day, and was so much intoxicated that she did not know what happened: That Mrs Mackinnon was very often in her bed after Mrs Macleod came, and was not capable of going about, from drink: That after her son's death, she kept her bed more than formerly; but she sometimes got up during the day, and went into the room where her son's corpse lay: That she got spirits occasionally through the forenoon, and if Mrs Macleod happened to go out, she desired the witness to give her spirits if she asked for them: That the deponent has known her drink a bottle and more in a day; but she cannot say how much she took every day That she took scarcely any victuals, and she appeared to the witness to be getting daily weaker: That the deponent never saw her get up after her son's funeral, excepting to get her bed made, which was not always done: That the deponent has heard her, when she got spirits in the night, go through the room retching: That she continued to drink spirits in this way till the deponent left her service."

:

E. Ferguson, who succeeded Ann Donaldson as servant to Mrs Mackinnon, deponed,

"That Mrs Mackinnon never rose out of her bed after the deponent went into her service, except on the second day after she went there, when she expressed a wish to rise, and she got her clothes put on, and went into the dining-room; but she was not there more than five minutes when she called to the deponent to take her back to her bed; and with Mrs Macleod's assistance, and leaning upon her, she did get back to her bed; and, from that period, she was constantly confined to bed; except when she was taken up to get her bed made: That when she did get up for this purpose, she required assistance, and Mrs Macleod and the deponent always assisted her, and placed her upon a couch, until the bed was made, and she then immediately returned to it, only remaining up till it was made; and they were

as expeditious as they could be, in making the bed, as Mrs Mackinnon was in such a state as not to admit of her remaining out of it for any time: That Mrs Mackinnon lived principally upon toddy, taking no sustenance but a cup of tea in the morning, and sometimes in the evening; and, for nearly about the first week, she took an egg in the morning: That she took no bread, and never took any dinner: That it was generally Mrs Macleod who gave her the spirits; indeed always, excepting on one or two occasions the witness gave her some, when Mrs Macleod was out; and it was at Mrs Mackinnou's desire she did so: That on the day on which the deed under reduction was signed, Mrs Mackinnon was, as usual, confined to her bed during that day: That the deponent observed Mrs Macleod frequently giving Mrs Mackinnon toddy in the morning and forenoon of that day, and that rather more than usual: That the day before, the witness remarked, it was dreadful to be giving her so much spirits That Mrs Macleod answered it was all her own. Interrogated, Whether she can say upon her oath, that she (Mrs Mackinnon,) appeared to her to be generally in a state of intoxication? Depones, That she can, and does say upon her oath, that she was always in a kind of stupor, which the witness imputed to intoxication. Interrogated, Whether she appeared to be in that state on the day the will was signed? Depones, That she had taken the same quantity on that day, whatever more; and was in the same kind of way on that day as she always was."

Dr Ross, who attended Mrs Mackinnon's son during his last illness, in November 1822, deponed, That he

frequently saw Mrs Mackinnon in a state of intoxication, and, in the deponent's opinion, that this habit was carried to a great and disgusting extent; and she addicted herself, and continued to drink during the last days of her son's life: That he saw the son about two hours before his death when he was moribundus, and the witness considered him in extremity: That on this occasion the mother was lying on the bed beside her son, and to the deponent's best belief, in a state of intoxication, and apparently unconscious of any thing; and he has seen her repeatedly in the same state of intoxication before her son's death."

Major Mackay also founded on the testator's signature to the deed as contrasted with her signature a few weeks previous, to prove her unfitness for exe cuting a settlement at that time. On the other hand, the respondents founded on the following evidence:— Miss Jean Campbell deponed,

"That she had been acquainted with the late Mrs Mackinnon for several years, and was employed by ber to make mournings on the death of her last son: That she did not see her above three or four times after his death-is certain she saw her thrice. The first time was the day on which Mr Rollo returned from the funeral, which took place in Argyllshire. She and her sister were admitted to the room after Mr Rollo left her. The next time she saw her was at the distance, she thinks, of a fortnight; and the third and last time she saw her was about a fortnight before her death: That betwixt the first and last visit, she and her sister had called once, and were not admitted, on account of her illness: That on these different occasions, she appeared to be perfectly sober and collected; That she spoke very rationally, and had no appearance whatever of having been drinking: That all the deponent observed to be the matter with her was the appearance of the deepest grief.”

Mrs Reid deponed,

"That it never occurred to the witness, that Mrs Mackinnon drank spirits; and depones she would not have continued her visits, if she had supposed she was addicted to them."

Mrs Campbell of Knapp, aunt of the preceding witness, states,

"That she was, for many years, acquainted with the late Mrs Mackinnon. She accompanied her niece, when visiting Mrs Mackinnon; and she concurs with her in stating, that the latter appeared, on every occasion, to be perfectly sober."

Agnes Marshall, a dealer in poultry, and who had

waited on Mrs Mackinnon twice a-week, or oftener, deponed,

"That Mrs Mackinnon always made the bargains with the witness herself, and seemed to know perfectly what she was about : That she never saw her that she could know drink on her."

Alexander Harper, clerk to Mr Rollo, deponed, That he

"went to witness a deed she was to execute : That, so far as he recollects, upon being called for, they went into a back bed-room, where Mrs Mackinnon was in bed. Mr Rollo was in the room, and Mrs Macleod coming and going: That he observed the deed in the room, but he is not sure what part: That Mr Rollo asked, whether the deed had been read over to her, and whether it was according to her wish? And she answered in the affirmative to both: That he does not remember any other conversation passing: That he saw her sign the deed: That she was sitting up in bed unsupported, and was not assisted in signing it: That the deed was sealed with

wafer: That he thinks Mr Rollo put on the paper and wafer, and Mrs Mackinnon applied the seal : That Mr Gordon, one of the instrumentary witnesses, offered his seal, which she would not accept; and Mr Rollo observed, there was a watch at the head of the bed with a seal, and Mrs Mackinnon herself took it: That they all signed the deed in the room; and he thinks the testing clause was filled up before they left it. Depones, That he was quite satisfied Mrs Mackinnon was sober, and knew what she was about."

M. E. Macpherson, an apprentice to Mr Rollo, deponed, "That, at the different times he saw her, she appeared to be quite sober." And, after giving an account of the execution of the deed, similar to the preceding witness, added, "That Mrs Mackinnon appeared at this time to be sober." Dr Ross deponed, that " he saw her on the 9th of December, at which time she appear. ed to him a feeble exhausted old woman, with no formed complaint, except such irritation and weakness of stomach as he conceived to arise from the habits of the party." "On the 11th, a material change had occurred in the aspect of the case," "indicating a disease of the lungs." "No necessary connection, and he conceives none, between the state of the stomach on Monday, and state of the lungs on Wednesday."

per

The respondents also founded on six letters, written by Mrs Mackinnon to the overseer at Ormaig, between 17th April and 21st October 1822, to prove her fect capacity to manage her own affairs. The proof was circumduced, and cases ordered. Major Mackay having died, the appellant was sisted in his room. Thereafter, the Court, on 14th June 1827, pronounced this interlocutor:

"The Lords having considered the revised cases, and evidence adduced for the parties, and minute for Miss Flora Mackay of Laggan, Islay, and heard the counsel, Sist the said Flora Mackay as pursuer of this action, in the room of her brother, Major Alexander Mackay, now deceased; repel the reasons of reduction, in so far as these are maintained on the alleged incapacity of Elizabeth Mackinnon, the granter, at the date of the deed under challenge in this action; and to this extent assoilzie the defenders, and decern: But before farther advising as to the other reasons of reduction, ex capite lecti, appoint parties to be farther heard by their senior counsel at an early day to be afterwards fixed in the course of next Session."

And on 17th January 1828,

"The Lords repel the reasons of reduction ex capite lecti; assoilzie the defenders from the whole conclusions of the libel, and decern; find the defenders entitled to expenses of the discussion in this cause upon the challenge on the head of incapacity; but find no expenses due of the discussion relative to the allegation that the deed under reduction was executed on deathbed; allow an account to be given in, and remit the same, when lodged, to the auditor of Court to tax accordingly, and report."

Against this judgment Flora Mackay entered the present appeal-I. Because it is proved that, at the time of giving instructions for the preparation of the trust-disposition and settlement of the 6th December 1822, and on the day on which that deed was executed, the deceased Mrs Mackinnon, by reason of bodily infirmity and of a morbid habit of intoxication, was not of sound disposing mind; or in a condition to understand the import of any deed; far less of a deed so complicated and important as the one in question. -II. Because the foresaid trust-disposition and settlement contained a death-bed conveyance of the said Mrs Mackinnon's heritable property in Scotland, to the prejudice of her heir-at-law; seeing that it is proved that the said conveyance was made within less than sixty days of her death, and after she had contracted a disease or mortal sickness from which she never recovered, and which occasioned or contributed to, or accelerated her death.-III, Because it is proved that Mrs Mackinnon was in lecto ægretudinis on the 6th December 1822, or so ill at least, as to lay the onus of proving re-convalescence, or that she was not on death-bed, on the respondents; and the single testimony of Dr Ross does not amount to legal probation of that fact, or of any other special fact sworn to by him, as to which he is not corroborated by the testimony of at least one other witness.-IV. Because in no view of the present case are there sufficient grounds for subjecting the appellant in any part of the costs incurred by the respondents in the Court of Session. The respondents answered-I. The trustdisposition and deed of settlement which Mrs Mackinnon executed on 6th December 1822, being ex facie perfectly valid and unexceptionable, it is impossible for the appellant to succeed in her attempt to reduce and set aside that deed, unless she can establish sufficient legal grounds of reduction, extrinsic of the deed itself, by the clearest and most conclusive evidence.-II. The two pretended grounds on which the appellant has attempted to reduce the trust-deed and settlement in question, are totally distinct and separate from each other; and therefore, unless she can completely establish the one or the other, she cannot possibly prevail in her attempt to destroy the deed.-III. The appellant has altogether failed in substantiating the allegation, that at the time of executing the trust-deed and settlement in question, Mrs Mackinnon's state of mind was such as to incapacitate her for the exercise of a disposing will: And on the contrary, the respondents have clearly established, that she was then perfectly capable of the exercise of such a will.-IV. The appellant, so far from having instructed, that, at the time of executing the trust-deed and settlement in question, Mrs Mackinnon was upon death-ded, has actually established, beyond all controversy, that at that period she was not on death-bed, according to any authority whatever, ancient or modern, in the law of Scotland.

Lord Chancellor.-My Lords, in this case, I submit there is no occasion for the learned Counsel, on the part of the respoudents, to be troubled to proceed; as, on the facts and the law, I really have no doubt in the world that the decision of the Court below ought to be affirmed. I say this with great respect for the authority of my Lord Glenlee, who differed with the learned