Cessio Bonorum-Any party called as a creditor, has a right to oppose a cessio,

It was objected to the appearance of an opposing creditor in a cessio, that his debt had been contracted since the process of cessio was brought, and that his claim was merely for the expenses of a suspension, for which he had caution.

Lord President.-The cautioner may fail. It is enough that the opposing party is called as a creditor.

The Court having thereafter heard parties' procurators on the merits, refused the cessio in hoc statu. First Division.-Act. P. Robertson and Rhind.-Act. Dauney.

8th July 1831.

No. 493.-THOMSONS, Claimants, v. YOUNGS, Respondents. Guardian, English-Powers of-Tutor-Curator-Minor-Pupil -Curator Bouis-Intimation- Dispensation-An English guardian, duly appointed, but domiciled in England, having granted a discharge of a Scotch heritable bond, with one of her wards who was a minor, and for the other who was a pupil, both resident in England-Hell, I. That such discharge was not sufficient.-11. Intimation of a petition for the appointment of a curator bonis dispensed with, in respect the petitioners had no next-of-kin on the father's side in Scotland.

The late Robert Thomson, master in the royal navy, was a Scotchman, and his wife a native of England. Whilst resident in Scotland, Thomson lent to James Stuart, Esq., the sum of £3800, for which he received a first heritable security over the estate of Dunearn, to himself and his wife" in joint fee and liferent," and to Paget and Alexander Thomson, their second and third sons, " in fee." Thomson died in 1829, and left his wife guardian of his children, under an English will, which was regularly proved, and probate and administration obtained on the 21st March 1829. Mr Stuart's estates having been sequestrated, Dunearn was exposed to sale, and purchased by the Messrs Youngs, the respondents. Some disputes having arisen among the creditors, the trustee raised an action of multiplepoinding in name of the purchasers, and Lord Medwyn pronounced an interlocutor, which, inter alia,

"ranks and prefers the heirs of the said Robert Thomson, of the royal navy, who shall produce a valid title to the bond mentioned in process, primo loco, upon the fund in medio, to the effect of their drawing payment of the sum of £3800, with interest since Whitsunday 1829, and for expenses."

Mrs Thomson, the guardian, and her two sons, one of whom was under 14, and the other above that age, were resident and domiciled in England. The trustee prepared, and offered the purchaser a discharge executed by her, along with her son, Paget, as taking burden upon herself for him, and also for Alexander, who was still in pupillarity, and for her own interest as liferentrix. The purchasers objected-that this was not a valid discharge; and after a report from Thomas Cranstoun, Esq. W.S., declaring, that, from the points of English law involved, he was incompetent to decide whether it was a sufficient discharge or not, Mr Campbell, an eminent English counsel, gave it as his opinion, on a joint case for the parties, that the discharge must be regulated entirely by "the law of Scotland, the lex loci rei sitae."

Lord Medwyn then pronounced this interlocu

tor:

"The Lord Ordinary (12th February 1831,) having resumed consideration of this case, Finds, that Mrs Thomson, being duly appointed guardian to her two sons, Paget and Alexander, by a deed valid according to the law of the domicile of her husband, her discharge, along with her son Paget, as taking burden upon her for her said son, and also for Alexander, who is still in pupillarity, as well as for her own interest as liferentrix, will be a valid discharge of the bond and infeftment in question: And, on such discharge being delivered duly executed, ordains payment to be made of the sum due under said bond out of the fund in medio, and decerns: Finds Messrs Young and Co. liable in the expense of the remits to Mr Cranstoun and Mr Campbell.-Note.-The Lord Ordinary wishes that the difficulty which had occurred as to the discharge by the heritable creditor had been stated to him, as it seems to him that some expense and delay might have been thereby saved. But both the remits to Mr Cranstoun and to Mr Campbell were made upon a statement from the Bar that such was the proper course to follow, without much, if any, discussion. For it appears to the Lord Ordinary, that our own law must determine what is the proper discharge of an heritable bond and infeftment, and that, in this case, it was necessary or proper to resort to the law of England, only to say, whether, by the deed of settlement, 5th November 1828, Mrs Thomson was duly constituted guardian of her two sons, Paget and Alexander, the fiars of the bond. It seems nothing to the purpose, that, as would appear from Mr Campbell's opinion, a guardian cannot, in England, grant a discharge of a mortgage, if a tutor in Scotland may validly receive payment, and grant a discharge of an heritable debt, which the debtor wishes to pay up. That such a discharge would be good to the debtor, it is presumed, will not be disputed; and it is quite possible that a contract, valid according to the lex loci, may have different effects, sometimes greater, and sometimes less, if sued on in this country, than it would have had in the country where it was entered into. Upon this principle the celebrated marriage-cases were decided-See also Laing v. Weir, 6th December 1821, and other cases, such as those to which a foreign prescription applies, or where, by the removal of the defender to another country, to which the prescription of the locus contractus does not extend, it is held not to apply-See also Ersk., B. 3, t. 2, sects. 40 and 41. Hence, as, I presume, there is no dispute that Mrs Thomson, by her husband's settlement, has been duly appointed guardian to her two sons, it seems to me that she has all the powers she would have had if the settlement had been executed when the parties were domiciled in this country, and had nominated her tutrix and curatrix; and that she can grant a valid discharge, in concurrence with her son Paget, who is above pupillarity, for his interest in the bond, and in her own name alone for her son Alexander, who is still in pupillarity, and that such discharge will be effectual to the debtor."

The purchasers reclaimed. March 1831),

At advising (10th

Lord Justice-Clerk observed, that the point had never been settled, and was one of such nicety as ought not to be hurriedly discussed.

Lord Glenlee concurred. The question before the Court was, Whether an English guardian, appointed under an English will, was vested with the powers of a Scotch tutor and curator. If such powers were enjoyed, then the discharge offered would be valid. But until these were ascertained, the Court should pause.

Lord Cringletie thought that inventories should have been made up, in terms of the Act 1672, c. 2.

Lord Meadowbank.—In England, minors labour under a personal incapacity, and cannot grant any deeds. The question decided by the Lord Ordinary was one of great nicety.

The Court ordered cases. The claimants maintained-I. That a testamentary guardian, appointed by a father to his minor children, in a will made in England, with all the solemnities required by the law of that country, was invested with the character and power of tutor and curator nominate in Scotland : That the term guardian was in the English law synonimous with tutor and curator in the Scotch and civil law. II. That, ex comitate, an English testamentary guardian, regularly nominated, ought to be acknowledged by the Scotch Courts, as concentrating in his person the powers of tutor and curator.-III. That, from the increasing intercourses between England and Scotland, the Court, seeing there were no express authorities on the point, ought, from considerations of equity and expediency, apart from the individual hardship of the present case, to recognise the doctrine contended for.-IV. That the claimants, being foreigners, and having no relatives in Scotland, had not the privilege of choosing curators, or of having a tutor-dative, or of law, appointed; and, besides, supposing such possible, it was inexpedient that there should be parties in England, and also in Scotland, exercising similar co-existent and co-extensive powers in the affairs of minors. Answered-I. Admitting an English guardian to possess the powers of a Scotch tutor and curator, Mrs Thomson has not made up inventories in terms of the Act 1672.-II. She is not under the jurisdiction of the Courts of this country.III. There is no security that she will not alienate the minors' property, or alter their succession to it.— IV. That, by the law of England, guardians have no powers to discharge real debts due to their wards, and it is impossible that these can be extended, because they are to be exercised in Scotland.

When the eases came on for advising, on the 3d June 1831, it was stated for the claimants-That both the fiars were now above 14 years of age, and that, by the law of Scotland, minors were, of themselves, entitled to discharge debts without curators.

Lord Justice-Clerk observed, that his mind was by no means yet made up, that an English guardian possessed the same powers as a Scotch tutor and curator.

Lord Meadowbank was of the same opinion. He would take the opinions of the other Judges on the point.

Lord Cringletie thought, that if the guardian had made up tutorial and curatorial inventories, in terms of 1672, c. 2, she would have had power to grant a valid discharge. An English guardian and a Scotch tutor and curator could not have different powers. The appointment of a guardian would exclude the choosing of curators. The only interest which the purchaser had, was to have the estate disburdened.

It having been suggested from the chair, that the

difficulty would be removed by the appointment of a curator bonis to discharge the bond, the Court superseded the case; and, thereafter, a petition for the appointment of a factor toco absentis and curator bonis was applied for, and intimation of it dispensed with, in respect that the petitioners had no next of kin on the father's side, major, and resident in Scotland.

The curator bonis not having found sufficient caution, the Court, on the 8th July, pronounced this interlocutor:-

"Recal the interlocutor complained of; find that there has not yet been produced any sufficient discharge to the purchasers. Find the raisers entitled to their expenses, of which allow an ac count to be given in, and taxed in common form, reserving all questions as to interest and expenses between the claimants; and remit to the Lord Ordinary to proceed accordingly."

Claimants' Authorities.-Blackstone's Com. Lib. I. c. 17. sec. 1. 12 Car. II. c. 24. Roberts on Wills, Vol. II. pp. 174, 180, 214, Ersk. I. 6. 55; I. 7. 11. 33; III. 2. see. 39, 40, 41. Stair, I. 6. 32. Bank. I. 7. 50, 52. 1555, c. 35; 1672, c. 2; 1474, c. 51. Koechler, 31st January 1772; Mor. 8975, and Authorities there quoted.

Respondents' Authorities.-Koechler, ut supra. Wilson, 10th March 1819; F.C. Gibson, 21st December 1811; Ersk. I. 7. 23. Guthrie, Mor. 16,319. Ersk. I. 7. sec. 18, and Note, 213, Ivory's Edition. Hay, Mor. 8973. Lyon, Mor. 16,272. Forbes, Mor. 16,287. Grahame, Mor. 16,383. Ersk. I. 7. 3, 4. Countess of Callander, 23d February 1693; Mor. 14,701. Ersk. III. 2. sec. 40, Note 90. Kirkman, Mor. 8977. Cruickshanks, 11th February 1819; F.C. Sharpe, Mor. 16,234.

Second Division.-Lord Ordinary, Medwyn.-Act. Skene, Spiers, and J. W. Hay.-All. Dean of Faculty (Hope) and C. Baillie; Jo. Wotherspoon, W. S., J. and L. Davidson, W.S., and D. Fisher, S.S. Č., Agents.-Mr Thomson, Clerk.

OUTER HOUSE.

5th July 1831.

No. 494.-HENRY, Advocator, v. M'DOUGAL'S TRUSTEES, Respondents.

Process-Record-A process having been dismissed before the Sheriff on a point of competency, without closing a record; and an advocation having been brought of the judgment-Held, that a record must be prepared in the Court of Session.

In this case the Sheriff dismissed an action, which was brought before him on a preliminary point of competency. This judgment having been advocated, it was moved, that the reasons of advocation and answers should be revised. One of the parties suggested that this was unnecessary, and that, being an advocation of a judgment on a preliminary point of competency, without any record in the Inferior Court, his Lordship might hear and decide it de plano, just as if it had been a preliminary defence in an action raised before himself.

The Lord Ordinary was of opinion that some record must be made up before he could pronounce judgment. Though a point of competency in the Inferior Court, yet, when advocated, it constituted the merits of the advocation.-His Lordship ordered the papers to be revised.

Lord Ordinary, Mackenzie.-Act. Wood.-Alt. Cowan.William Douglas, and Gibson-Craigs, Wardlaw & Dalziel, W. S., Agents.-W. Clerk.

Printed by M, ANDERSON, Law-Printer,

No. 495. WILLIAM MAULE, Pursuer, v. THE HONOURABLE

WILLIAM RAMSAY MAULE, Defender.

Process-Res Judicata-1. Circumstances in which certain judgments and proceedings in the Court of Session and House of Lords, not held to form res judicata, nor to bar the pursuer from insisting in a reduction of a decree of the Court of Session, pronounced in 1782, and not appealed against within five years. 2. The plea of res judicata repelled (as a preliminary defence,) and the defender ordered to satisfy the production.

The pursuer claims to be heir of tailzie and provision in various subjects possessed by the defender— viz 1st, In the estate of Kelly; 2dly, In the estate of Ballumbie; 3dly, In two long leases of the house and parks of Brechin, and the houses and parks of Panmure; and, lastly, In a bond for £9000, to be employed in the purchase of land. The deeds upon which the pursuer alleges that his rights are founded, are certain entails executed in 1730. They consist of, 1st, An entail of the estate of Kelly, executed by Mr Harry Maule, the proprietor of that estate. 2d, An entail of the estate of Ballumbie, executed by William Maule, his son, afterwards Earl of Panmure. 3d, An entail of the lease of Panmure, executed by Mr Harry Maule, along with the Countess of Panmure. 4th, An entail of the lease of Brechin, executed by Mr Harry Maule himself. And, lastly, Of an obligation by William Maule, afterwards Earl of Panmure, to employ the £9000, already mentioned, in the purchase of lands, to be entailed on the same series of heirs who were called to succeed to the lands and to the leases. In the entail of Ballumbie, executed by William, afterwards Earl of Panmure, he was himself the disponee or institute. In the other entails of Kelly and of the leases, Mr Harry Maule was the institute, and his eldest son, William, afterwards Earl of Panmure, was the first substitute. In consequence, as the pursuer alleged, of the relation in which the Panmure family, at that period, stood to Government, from their connection with the rebellion, the above entails, instead of being recorded, were executed in duplicate. One set of the duplicates was entrusted to Mr John Maule, advocate, afterwards Mr Baron Maule, and the other set was retained by his father, Mr Harry Maule. On the death of Mr Harry Maule in 1734, his son William, afterwards Earl of Panmure, did not connect himself with the entails, but made up a title by special service as heir to his father in the lands, and by general service as to the leases. William Earl of Panmure lived till 1781, and, during the period of his possession, he executed various deeds inconsistent with the entails, particularly, two settlements of strict entail, the one dated in 1775 and the other in 1779, by which he settled his whole estates, failing himself Vol. III. Conducted by

W. DICKSON, W. H. DUNBAR, Advocates, JOHN
RYMER, W.S. and others, Members of the Bar.

and his brother, and the heirs of their bodies, on George Earl of Dalhousie, his nephew, in liferent, and his second and other sons in their order, in fee; and a third deed of entail, dated in 1781, with substantially the same destination. Under these last entails, the defender, who was the second son of George Earl of Dalhousie, succeeded, in prejudice of the pursuer, who was the heir under the entails of 1730. On the death of Baron Maule in 1781, the entails of 1730 were found in his repositories, and were sealed up, and placed in the hands of Mr Leslie, W.S., till it should be determined who had the best right to them. The pursuer's father, Lieutenant Maule, who claimed to be heir under the entails of 1730, was alive at this time. Various actions were raised after the discovery of these entails. There was first a multiplepoinding in the name of Mr Leslie, the custodier of the papers, for ascertaining to whom those papers ought to be delivered up. In that action, the Earl of Panmure and the present pursuer's father were called as parties. There was, secondly, an action of exhibition and declarator raised by the Earl of Panmure, in which both Mr Leslie and Lieutenant Thomas Maule were called as defenders. The conclusions of that action were in substance, that Mr Leslie should be decerned to deliver up to the pursuer the papers contained in the different parcels already alluded to; and, in so far as concerned Lieutenant Maule, the conclusions were, that

"it ought and should be found and declared, that the pursuer has the absolute and unlimited right to the several estates and subjects before-mentioned, and that he is not bound by the fetters, limitations, and obligations contained in any of the foresaid writings; and the whole of the said latent writings ought to be found null and of no avail, or at least not binding against him in any shape, unless according to his own will and pleasure."

The Earl also instituted a separate action of reduction and improbation, for setting aside the various deeds of entail already alluded to. The reductive conclusions were founded chiefly upon the lapse of the years of prescription. In that action, he called as defenders both Lieutenant Maule and his son, the present pursuer, then a minor. The two first of these actions were conjoined, and a proof was led ; but before the action of reduction came into Court, the Earl of Panmure died. The pursuer's father then raised, in his own name alone, a counter-action of reduction, for setting aside the settlements executed by the Earl of Panmure, and by which the Earl of Dalhousie, and the defender, his second son, had been called to the succession of the various subjects conveyed by the entails 1730. A brieve was also obtained by Lieutenant Maule, directed to the Sheriff of Edinburgh, for serving him nearest and lawful heir-male of tailzie and provision in general to the late Earl of Panmure, in virtue of, and conform to the deed of tailzie in 1730. But of this brieve an advocation to the Macers was obtained by the late Earl of Dalhousie, who, as administrator-in-law for the defender, obtained on his part a brieve, directed to the Macers, for serving the defender nearest and

No. XXXVII

lawful heir of tailzie and provision to Lord Panmure, in terms of the tailzie of 12th October 1781. Assessors were appointed to the Macers, who were pleased to order informations, in order that the whole matters might be decided by the Court. In the mean time, they adjourned the consideration of the brieves and the services, until the opinionef the Court should be obtained. The different actions above mentioned were conjoined with the brieves; and on advising the informations, an interlocutor was pronounced on 5th March 1782, in the following terms:

"On the report of Lord Gardenstone, senior Lord Assessor, who, along with Lord Kennet, attended the Macers in the above-mentioned competition of brieves, and having advised the mutual informations given in by both parties, with the several processes which were now conjoined, writs produced, and proof adduced, and having heard parties' procurators in their own presence, the Lords find, that the decd of tailzie executed by the deceased Mr Harry Maule of Kelly, with consent therein mentioned, in the year 1730, of his lands and estate of Kelly, and also the deed of tailzie executed by the late William Earl Panmure, in the foresaid year, of his lands and estate of Ballumbie, are cut off both by the positive and negative prescription, and that the obligation for employing £9000, executed by the said William Earl Panmure in the aforesaid year, is cut off by the negative prescription; and therefore sustain the reasons of reduction of these three deeds, and reduce, decern, and declare accordingly: Find, That the said William Earl of Panmure had full power to make the deed of tailzie, executed by him in favour of the said Mr William Ramsay Maule, and his administrator-at-law; repel the reasons of reduction of that deed of tailzie, and assoilzie the said Mr William Ramsay Maule, and his administrator-at-law, from the process of reduction improbation and declarator, at the instance of the said Lieutenant Thomas Maule, against them, in so far as the same relates to the estates of Kelly and Ballumbie; and also from the process against them for implement and performance of the prestations contained in the obligation for the £9000: Find, That the said Mr William Ramsay Maule was entitled to be served heir of tailzie and provision to the said deceased William Earl of Panmure, his granduncle, in virtue of the foresaid deed of tailzie in his favour; and remit to the Macers to proceed in his service accordingly, on the brieve brought before them by him and his administrator-in-law: Find, That the said Lieutenant Thomas Maule has right to take up the leases of the house and parks of Panmure, and house and parks of Brechin; and decern against the said Mr William Ramsay Maule, and his said administrator-in-law, in the conclusions of declarator and removing in the foresaid action at the instance of Lieutenant Thomas Maule, so far as the same respects these leases, and remit to the Macers to proceed in his service in so far as regards these two leases; but find that he is not entitled to be served heir-male of tailzie and provision to the said William Earl of Panmure, in virtue of the deed of tailzie of the estate of Kelly, executed by the said Mr Harry Maule, nor in virtue of the deed of tailzie of the estate of Ballumbie, executed by the said William Earl Panmure; and that his service on the brieve taken out by him cannot proceed with regard to the estates of Kelly and Ballumbie; and remit to the Macers to dismiss the same accordingly, in so far as concerns these two estates, and decern."

Against this judgment, so far as it related to the leases of Panmure and Brechin, an appeal was entered, on behalf of the defender, to the House of Lords. A cross appeal was prepared for Lieutenant Maule, against that part of the judgment which related to the estates of Kelly and Ballumbie, and to the bond for £9000; but this cross appeal was not presented, in consequence of a transaction being entered into between the Earl of Dalhousie, as administrator-inlaw for the defender, on the one part, and Lieutenant

Maule, on the other part, for himself, and as administrator-in-law for the present pursuer, by which the appeals were agreed to be departed from, and the defender's right to the lands and leases recognised, on condition that £3500 should be paid to Lieutenant Maule. This transaction was made, to assume the form of a submission and decreet-arbitral; and the above sum was vested in the arbiters, as trustees, for the pursuer's father in liferent, and for the pursuer himself in fee or remainder, to the extent of £2500, with a declaration, that if the pursuer should challenge the award he should forfeit the money. The pursuer was at this time nine years of age, and no tutor ad litem was appointed to him. The pursuer's father, Lieutenant Maule, died in 1789. The decreet of 1782 was extracted, and the pursuer received the interest of the money on expeding a service as heir to his father, secundum decretum arbitrale, but the pursuer incurred no general representation of his father. In February 1810, the pursuer, who was then thirty-seven years of age, raised an action before the Court of Session, against the present defender, concluding for reduction of the deed of submission and decree-arbitral, and of his service secundum decretum arbitrale. On 9th March 1813, the Second Division of the Court assoilzied the defender from the conclusions of this action. The pursuer submitted this decision to review, by appeal to the House of Lords, when the following judgment was pronounced, 10th May 1816:

"Find, that in this action and proceeding between the present appellant and respondent, the alleged submission and alleged decree-arbitral, of the respective dates of the 30th March 1782, and 2d April 1782, ought not to be considered as being or having in law the effect of a submission or decree-arbitral, but as a form in which an agreement previously made between Thomas Maule, the appellant's father, and George Earl of Dalhousie, parties to the said submission, was concluded; and with this finding it is ordered, that the said cause be remitted back to the Court of Session in Scotland, to review the interlocutor complained of in the said appeal, and upon such review to do therein as is just and consistent with this finding."

When the cause returned to the Court of Session, the pursuer contended, that the decree-arbitral being swept away, the judgment of 1782 was final in his favour, never having been submitted to review by the present defender in any competent shape. On the other hand, the defender contended, that the judg ment of 1782 was not final, and formed no res judicata, and, at all events, that, if the decree-arbitral was void, still the agreement on which it proceeded was binding. On 2d December 1817, a judgment was pronounced by the Court of Session in general terms, sustaining the defences and assoilzieing the defender. A second appeal was entered against this judgment. On 10th July 1819, the House of Lords

"ordered and adjudged, that the said interlocutor therein complained of be, and the same is hereby reversed, so far as it is inconsistent with the order of this House of 10th May 1816, remitting the cause back to the Court of Session in Scotland to review the interlocutor of 9th March 1813, complained of in the former appeal, and so far as it sustains generally the defences pleaded for the defender, and except as herein after expressed; and it is farther ordered and adjudged, that the instrument of 2d April 1782, purporting to be a decrec-arbitral, ought to be set

aside and reduced as a decree-arbitral affecting any rights of the appellant; and it is declared, that, under the circumstances of this case, the interlocutor of 1st March 1782 is not to be considered as final and conclusive against the respondent with respect to the leases in question; and therefore, as to so much of the appellant's action of reduction and declarator as seeks a declaration of the rights of the appellant to such leases, it is farther ordered and adjudged, that the said interlocutor of 2d December 1817 be, and the same is hereby affirmed, but without prejudice as to any question between the parties in any other action touching any property comprised in the deeds of tailzie in the pleadings mentioned."

On moving this judgment, Lord Eldon said,

My Lords, before the counsel proceed, I will direct your Lordships' attention to the case of Maule v. Maule. The House were moved the other day to affirm the judgment; but, on looking into the pleadings, it appears that a general affirmance of the judgment would be inconsistent with that which the House has done before. Your Lordships will recollect that the interlocutor of the Court of Session, in March 1782, was followed afterwards by what is called a decreet-arbitral.

There

was an action in the Court of Session in order to affect that decreet-arbitral, and in that action the Court of Session sustained all the defences. Now this House afterwards declared that that was not to be considered as a decreet-arbitral, and sent it back to the Court of Session to review the interlocutor, with that declaration of this House. A general affirmance, therefore, of all the interlocutors sustaining all the defences will be quite inconsistent with the foregoing judgment of this House, that some of them could not be sustained; and the opening the interlocutor of 1782, considering it as not res judicata, must be considered as opening it altogether. Therefore, this must be taken as an affirmance only as to the matters argued at the Bar, and the judgment must be without prejudice to that interlocutor. I have, therefore, altered the terms of the judgment the House meant to give, and the agents on both sides will see the terms on which we now propose the judgment shall be given, in case your Lordships shall please to adopt those as the terms of the judgment; and if any thing should occur to them there will be an opportunity of altering it. (Signed) W. B. GURNEY."

As soon as this judgment was pronounced, the defender, on 3d November 1819, raised an action against the present pursuer and the trustees appointed to hold the money awarded by the decree-arbitral, which money the pursuer had of course repudiated when he raised his action in 1810. The summons was founded on a penal clause levelled against the pursuer nominatim in that alleged decree-arbitral ; and it contained a conclusion, that the present defender had the only right to the principal sum of that money, and also the following conclusion against the pursuer personally:

"And the said William Maule, defender (now pursuer), ought and should be decerned and ordained, by decreet foresaid, to make payment to the pursuer (now defender) of the interests of the aforesaid remaining sum of £2500 Sterling, received by him or any of his creditors in his right, from the term of Martinmas in the year 1789 to the term of Martinmas 1815."

In the meanwhile, the pursuer, in 1821, raised a new action before the Court of Session, founding upon the entails of 1730, and calling for reduction of the settlements executed by Lord Panmure in 1781, as inconsistent with these entails. On 5th June 1823, Lord Alloway pronounced the following interlocu

tor:

"Finds, that by the extracted decree of the Court of Session, of 5th March 1782, by the judgment of the Court of Session, 9th March 1813, by the judgment of the House of Lords, 10th May 1816, by the judgments of the Court of Session, 21st May 1816, and the 4th of March and 2d December, 1817, by the

judgment of the House of Lords, 10th July 1819, and by the extracted decree of the Court of Session, 7th March 1820, all right and interest which the pursuer claims under the present summons of reduction and declarator are totally excluded, and the subject-matter of this action is res judicata by the judgments above referred to, therefore assoilzies the defender from this action, and decerns."

The Court having adhered to this judgment, the pursuer brought the case under review by appeal, when the following judgment was pronounced by the House of Lords on 26th May 1826 :

"It is ordered and adjudged by the Lords Spiritual and Temporal, in Parliament assembled, that the interlocutors complained of in the said appeal be, and the same are hereby affirmed with respect to the estates of Kelly and Ballumbic, and the bond for £9000 in the said interlocutors mentioned, so far as the said interlocutors find that all right and interest in the said estates and bond, which the appellant claimed under the summons of reduction and declarator in the said interlocutor mentioned, are totally excluded, and the subject-matter of the action then before the Court as to such estates and bond was res judicata by the judgment contained in the decreet of the Court of Session, of 5th March 1782, in the said interlocutors mentioned, inasmuch as it appears to their Lordships, that it was not competent to the appellant, by the summons of reduction and declarator in the said interlocutors mentioned, to impeach such decreet of the 5th of March 1782, so as the same respected such estates and bond, and such decreet has not been impeached by reclaiming petition or appeal, or any other proceeding competent to impeach the same; and it is farther ordered and adjudged, that the interlocutors complained of be, and the same are hereby reversed, so far as the same find that all right and interest which the appellant claims in the leases of Brechin and Panmure, under the summons of reduction and declarator in the said interlocutors mentioned, were totally excluded, and that the subject-matter of the action then in question touching such leases was res judicata by all the several judgments referred to in the interlocutors complained of, inasmuch as the said decreet of the Court of Session, of the 5th of March 1782, instead of excluding, expressly affirmed the title under which the appellant claimed such leases; and the judgment of this House, of the 10th of July 1819, in the said interlocutors mentioned, expressly left all questions open to both parties with respect to the said leases, notwithstanding such judgment, or any of the proceedings in the Court of Session to which such judgment referred, such judgment of this House having declared that, under the circumstances of the case, the decreet of the 5th of March 1782, was not to be considered as final and conclusive against the respondent with respect to such leases; and, therefore, as to so much of the appellant's action of declarator and reduction then before the House as sought a declaration of the rights of the appellant to such leases, founded on the said decreet of the 5th of March 1782, aflirmed the interlocutor of the 2d of December 1817, then complained of; but having also expressly declared that the affirmance of such interlocutor by this House was without prejudice to any question between the parties in any other action touching any property comprised in the deeds of tailzie therein mentioned, the intent and meaning of the whole of such judgment being, to leave all questions respecting the rights to the said leases, as well as to the rest of the property comprised in the deeds of tailzie therein mentioned, open to be discussed in such manner as the same might be properly discussed in any future proceeding properly instituted for that purpose; but as it appears that the Court of Session, in pronouncing the interlocutors complained of, have not entered into any question touching the right to the said leases, except the question,-whether, by the several judgments in the said interlocutors mentioned, all right and interest which the appellant claimed under the summons of reduction and declarator then before the Court were totally excluded, and whether, therefore, the subject-matter of that action respecting such leases was res judicata by the judgment referred to in such interlocutors, so that the right of the appellant to the benefit of such leases has not been properly discussed in the action of reduction and de