In this case, the suspender had accepted a draft by Little for £300, in 1825, and it was discounted by the chargers for value. After it fell due, it was settled by Little, who gave the chargers another bill for £300, drawn by him on, and accepted by Beattie. The chargers, notwithstanding, thereafter did diligence upon the original bill, which they had not delivered up. Dickson suspended on the ground of payment. A reference to oath followed. In the course of it, two depositions were emitted by Scot, the agent of the chargers, and "The Lord Ordinary (23d February 1830,) having heard parties' procurators, and considered the closed record, and the depositions of Archibald Scot on the reference by the suspender, Finds it established by the said depositions, that the bill charged for, drawn by Thomas Little upon, and accepted by the suspender, was not paid in cash, and that the only consideration granted to the chargers for its retirement was another bill for the same amount, drawn by the said Thomas Little upon, and accepted by James Beattie: Finds it also established by these depositions, that the said acceptance by Beattie was received by the chargers, or their agent, on the express condition, that the bill now charged on was to be retained by them as a collateral or additional security for the payment of such new acceptance: Finds, therefore, that the chargers were, and are entitled to do diligence upon the suspender's bill, in so far as Beattie's acceptance remained, or remains unpaid; and therefore, and in respect it is admitted that a payment of one hundred and fifty pounds has been made on the acceptance by Beattie, suspends the letters to that amount, and, quoad ultra, Finds the letters orderly proceeded, and decerns; and finds no expenses due.-Note.As both parties have, to a certain extent, been in the wrong, the suspender, in maintaining that his acceptance was absolutely extinguished as a document of debt by Beattie's bill,-and the chargers, in maintaining that there was no connection between the two bills, and that separate value was given for the latter, the Lord Ordinary has found no expenses due." The suspender reclaimed, but the Court "Adhere to the interlocutor complained of, but without prejudice to the suspender to bring before the Lord Ordinary any state of facts, noviter venientes ad notitiam, as to the extinction of the debt charged on: Find the chargers entitled to the expense of opposing this note, and remit," &c. Second Division.-Lord Ordinary, Fullerton.-Act. Jardine. -Alt. A. Anderson.-Walter Dickson, W.S., and John Bisset, S.S.C., Agents.-Mr Thomson, Clerk. 3d December 1830. No. 70.-THE RIGHT HONOURABLE JOHN FRANCIS MILLER ERSKINE EARL OF MAR, Pursuer, v. LADY FRANCES J. ERSKINE and LADY JEAN JANET WILMOT, Defenders. Entail-Provisions to Younger Children-5 Geo. IV. chap. 87, -By an entail, giving power to "the heirs of tailzie" to provide their younger children to "reasonable provisions"—Held, where the free rental did not exceed £6683, it was competent for the heir fan Earl,) to burden the estate with a provision of £20,000 in favour of his two daughters. The estate of Mar was held under an entail, which contained a clause, empowering the heirs in possession to grant provisions to their younger children, in these terms: "And also excepting and reserving full power and liberty to the said Thomas Lord Erskine, and the other heirs of tailzie, to provide their younger children to reasonable provisions, declaring always, that any bonds of provision to be granted by the said Thomas Lord Erskine, and the other heirs of tailzie above-mentioned, shall be so qualified, as that any apprising or adjudication, or any other legal diligence to be led and adduced therefrom, shall only subsist for a real security for the principal sums, an nual-rents and expenses, but that the legal reversion of said diligences shall never expire." In May 1816, John Francis Earl of Mar executed three bonds of provision in favour of his six younger children, by which he burdened the heir of entail in possession with payment of £15,000 Sterling of capital sums, and with £700 annually of annuities. John Francis died in August 1825, and was succeeded in the entailed estate by John Thomas, against whom the younger children of John Francis brought actions. of constitution on their bonds of provision and annuity. John Thomas died in 1828, before decree was given in these actions, and was succeeded in the entailed estate by the present pursuer. Some time before his death, John Thomas executed two bonds of provision in favour of the defenders, his two daughters, the first (for £10,000) in corroboration of an obligation in his marriage-contract, and the second (for £20,000) of provision, and in security of the first. In the second of these bonds, after narrating his powers under the entail, and under the Act 5 Geo. IV. chap. 87, he bound and obliged himself, and the heirs succeeding to him in the estate of Mar, to pay to the defenders, their heirs, &c., at the first term of Martinmas or Whitsunday after his decease, the sum of £20,000, which sum was declared to be in full of their provisions under both bonds. In July 1829, decree was pronounced against the present pursuer, in the actions of constitution at the instance of John Francis's children, on their bonds of annuity and provision; and by a state made up, and lodged in process, it appeared that, when the pursuer succeeded to the estate, these provisions, in favour of John Francis's daughters, with arrears of interest, &c. amounted to £24,185, 1. 3. The pursuer then brought the present action of reduction of the two bonds granted by John Thomas Earl of Mar, in favour of the defenders, on the grounds,-That they were unreasonable and inconsistent with the provisions of the entail, and of the Act 5 Geo. IV. cap. 87: That, at the time of John Thomas's death, the gross rental of the estate was only about £8700; and that it was burdened with the previous provisions in favour of John Francis's children, now amounting to £25,200: That, by the act 5 Geo. IV. only two years' rent is allowed to be imposed on the estate where there are only two younger children, and even in that case where the rental is free. In defence, it was maintained, inter alia,-That the bonds of provision in question were expressly sanctioned by the entail: That they were not affected by the Act 5 Geo. IV. chap. 87; and that, in any view, they must be supported to the extent of two years' free rental. The Lord Ordinary ordered cases, with which he made avizandum to the Court, accompanying his interlocutor with the following note :— "It appears to the Lord Ordinary, that this case depends, in the first instance, on a question of law, which, though of an arbitrary nature, is not properly a question of discretion; and, eventually, in case the first point should be determined in favour of the pursuer, on a question of discretion, which must be decided by the Court, he is of opinion, that, in considering the question, whether the bonds of provision are at all liable to reduction, it is the entail alone which must regulate, and that the Act of Parliament, 5 Geo. IV. c. 87, ought to have no influence on any part of the argument. For, though that Act is referred to, as well as the entail, in the latest of the two bonds, evidently for the general purpose of taking the chance of any advantage it might possibly afford; yet, as the Act in the 12th section reserves, in the most unqualified terms, all powers already granted by any existing entail; and as it is clear, in point of fact, that the defenders in this case do not, and cannot maintain any enlargement of the power by the Statute, the Lord Ordinary thinks that their case must be judged of on the power reserved by the entail, in the same manner as if it had arisen before the Act of the 5th George IV. was passed. The just construction and application of the clause in the entail cannot be affected by a Statute, which expressly reserves the full force of it, and which was intended for cases, where either no power, or a less power than that given, was reserved by the entail. The entail gives power to the heir of tailzie to provide their younger children to reasonable provisions.' In this case, the last Earl of Mar has exercised the power in all due form, and he was the only person whose act or consent was required, either for making the provisions at all, or for fixing the amount of them in the first instance. The question is, Whether this deed is liable to reduction, on the ground that the provisions expressed in it are not reasonable? This is evidently not a simple question of discretion, nor at all the same question which would arise, as in the case of Rothes, if some express condition in the entail had been omitted, or unduly observed, and the Court were called upon, by its own powers of equity, to supply the defect, by supporting the deed to the extent of what they might think reasonable provisions. In the case of Rothes, the Court, after much discussion, found that a consent required by the entail, had not been duly obtained, and they then sustained the deed, to the extent of provisions modified by themselves. But it is thought that if it had been found that the consent had been duly obtained, the Court would probably not have interfered with the deed actually done, though the provisions exceeded what they afterwards, in the exercise of mere discretion, fixed upon as suitable according to the rental at the death of the granter. Although, therefore, there is no doubt that, in the present case, the terms of the entail imply, that, if the provisions granted are unreasonable, this is a relevant ground of reduction to some extent, yet, before the Court can be called upon to exercise the discretionary power of determining what would be reasonable, it must be made out clearly by the pursuer, that there is such a palpable excess, as to render it the duty of the Court to set aside the legal act of the party to whom the discretionary power was in the first instance committed. But it is possible to determine that a given sum is excessive, without previously fixing an absolute measure of what would be reasonable or not excessive. This is necessarily an arbitrary question. To resolve it, all circumstances must be considered, the rental, the existing burdens, the condition of the heir, the condition of the daughters of such a family. The pursuer rests his argument very much on the rules of the Act of 5th Geo. IV. as affording a guide in this matter. The Lord Ordinary bumbly thinks that those rules ought to have no influence on the question. If they were admitted, the consequence would be, that the defenders would receive no provisions at all, because the provisions made by the former Earl are not paid off, and they amount to, or rather exceed considerably the whole amount permitted by the Statute; and the Lord Ordinary cannot think, that when the Court sustained those provisions, amounting to £25,200, as made under this entail, it could be the meaning, that the Earl then in possession, having two daughters grown to woman's estate, should, in the event which happened, of his dying before it was possible to pay off these previous provisions, have no power to provide a shilling to these daughters. The pursuer does not maintain this. And it would be the more difficult to maintain it, because, to the extent of £10,000, the bond executed by the Earl after his succession, was in implement of an onerous obligation, long before undertaken by marriage-contract. The question then, is, Whether the provision of £10,000 to each of the daughters is, on general principles, so plainly unreasonable, that they must be set aside as not warranted by the entail? The gross rental of the estate is agreed upon at £8742, subject to some questions by which it may be increased or diminished to the extent of a few hundred pounds. After all deductions, including annuities, taken simply at their yearly amount, and the interest of former provisions, but without deducting the expense of management, the rental is £6683, which will be increased to the extent of about £194, if it should be found that the annuities ought to be valued. If the provisions of the defenders be sustained, there will be an additional burden thrown on the pursuer, to the extent of the interest of £20,000 annually; and his free-rental will then amount to about £5600, subject to increase or diminution, according as the points referred to in the notes to the rental may be judged of. But there was also an arrear of £1400 of interest and annuities, due at the death of the last Earl. The heir in possession is not subject to a personal obligation for payment of the principal of the provisions. But it is strongly urged by him, that adjudications may be led, whereby he might be deprived of possession of the estate for a length of time; to which it is answered, that, as the bonds of provision afford complete securities, he could easily raise the In this state of the case, money on assignations of the bonds. the Lord Ordinary thinks that the question is attended with difficulty. On the one hand, the burden is heavy upon the heir, arising from two sets of provisions coming into operation at one time; and his condition as Earl of Mar must be considered. But on the other, it would be unjust that the defenders should be left without proper provisions; and their condition as the daughters of the Earl of Mar, must also be taken into consideration. The interest of the provisions, as they stand, taken at four per cent., will only yield an income of £400 to each, and they were both unmarried at their father's death. The question is, Whether such provisions are, in the circumstances of the case, so plainly excessive and unreasonable as to call for reduction? The Lord Ordinary has only farther to observe, that, when the Court, in the simple exercise of equitable discretion, in the case of Rothes, sustained the bonds to the extent of a provision of £6000 to the daughter (though she had succeeded to a separate sum of £3000), and an annuity of £800 to the widow, the heir, who was also an Earl, was left in a much worse condition, even making allowance for his minority, than the pursuer in the present case would be, if the provisions should stand; and, if they shall be reduced to any considerable extent, one of the defenders, who is still unmarried, would not possess the means of living with any decent respectability in her proper rank and condition." The Judges concurred in thinking that the provisions were reasonable, and sanctioned by the entail; and the Court accordingly sustained the defences, assoilzied the defenders from the conclusions of the action, &c. First Division.-Lord Ordinary, Moncreiff.-Act. Miller.Alt. Skene.-Alexander Robertson, W.S., & David Cleghorn, W.S., Agents.-Sir R. Dundas, Clerk. 3d December 1830. No. 71.-WILLIAM ELDER, &c. Pursuers, v. DAVID MARSHALL, Defender. Title-Bill-Prescription-Blank in Drawer's Name-Executry-Confirmation-A testator having, by a last settlement, assigned to a party a bill debt of £600; and after the testator's death, the debtor in the bill having granted new bills for the debt and interest, to the legator, which remained blank in the drawer's name; and having also admitted the debt by letter-Held, that the legator's executors were in titulo to sue for the debt, although their author never confirmed to the testator, and although prescription had run upon the bills subsequently granted. The defender granted a bill, dated 18th February 1803, to Ann Granger for £600, payable one day after date. Ann Granger died in April 1808, without uplifting this sum, and leaving, by a settlement, the late John Granger, W.S., her sole executor and legator, with power to sue for, uplift and discharge all debts owing to her, and in particular, assigning to him this bill for £600, but under burden, inter alia, in the event of his dying without issue, that he and his heirs should be bound to pay to John Marshall's children the sum of £300, at the first Whitsunday after his decease. After Ann Granger's death, the defender granted, on 17th February 1809, a new bill to Mr Granger, W.S., for the £600, to which he had thus acquired right; and of the same date, another bill for £180, as the interest due upon it. These bills, though received by Mr Granger, W.S., were not completed by the adhibition of his signature as drawer; but, on 27th September 1815, he wrote the defender, acknowledg ing receipt of the said two bills, and submitting a statement of what would be due him by the defender at Martinmas then next. In that statement, Mr Granger, after deducting certain legacies which the defender had either paid, or undertaken to pay, brought out a balance in his own favour of £380 of principal, and £113, 7. 6. of interest, payable at the ensuing Martinmas, and expressed a wish to have a settlement at that term. Three days after Martinmas 1815, the defender wrote Mr Granger, acknowledging the receipt of his letter of the 27th September, admitting the accuracy of the state of debt therewith furnished, and inclosing a promissory-note, at one day's date, for the £113, 7. 6. of interest. On the 4th February 1824, the defender again wrote Mr Granger, requesting him to send his (the defender's) title-deeds, to enable him to borrow money on his property; and in that letter he became bound to pay Mr Granger his business account, and also acknowledged that he owed him another debt. Mr Granger died in December 1828, without having received payment of either of these sums of £380 and £113, 7. 6; and the pursuers, as executors confirmed to Mr Granger, brought the present action against the defender for payment of these sums, and of the interest which had accrued upon them. The defender denied the debt, and maintained in defence-That no diligence or action of any kind had been raised on any of the bills granted by him to Ann or John Granger, respectively, within six years of their dates: That John Granger, although nominated executor of Ann, never confirmed, and during his life had no legal title to sue for, or discharge her debts; and the bill for £600, granted to her, was still in ejus bonis: That Ann Granger left little property, besides the £600 bill, out of which the defender had paid legacies to the amount of £406, besides coming under other obligations for her: That the bills for £600 and £180, granted by the defender to John Granger, were never completed by the adhibition of his signature, nor in the defender's letters of 14th November 1815, or 4th February 1824, did he acknowledge the debt contained in the bills therein referred to, extrinsic of the bills themselves, which have suffered the sexennial prescription. The pursuers maintained in law-I. That Ann Granger's debt was effectually vested in John, in respect of her general and special conveyance in his favour, and of the new and corrobative vouchers granted for the debt, in favour of John Granger himself.-II. The debt is now in the pursuers, as the executors confirmed of John Granger; and even if the debt sued for were still in bonis of Ann Granger, the pursuers would be entitled to pursue therefor, producing a confirmation before extract.-III. The bills granted to Mr Granger are valid, although they were left by the drawer unsigned; the debt is, besides, proved scripto of the defender. The Lord Ordinary (8th June 1830,) repelled the defences; decerned against the defender for payment of the principal sum and interest, conform to the conclusions of the libel, and found the defender liable in expenses. The defender having reclaimed, the Court adhered. Pursuers' Authorities.—(1.) Stat. 1690, ch. 26. Ersk. III. 9, 30. Gordon, January 1729. Lyall, 11th March 1823. Spence, 20th February 1751. Watson, 19th June 1782.—(3.) Fair v. Cranstoun, 11th July 1801. Ogilvie v. Moss, 28th June 1804. Macdonald's Trustees v. Rankine, 13th June 1817. Defender's Authority.-Thomson on Bills, p. 680. First Division.-Lord Ordinary, Meadowbank.-Act. Marshall. Alt. W. Bell.-J. Hannay, W. S., and Hunter & Whitehead, W. S., Agents.-Sir R. Dundas, Clerk. HOUSE OF LORDS. (Speeches taken from Mr Gurney's Short-Hand Notes.) No. 72.-Mrs EUPHEMIA RUSSELL or INNES, Appellant, v. There were two questions between these parties. I. Whether a tenant of an entailed estate, whose lease had been reduced, as being contrary to the entail, was liable in violent profits, and for what period? II. Whether the tenant's representatives were entitled to be paid for valuable meliorations, made on the property while it was in his possession, from the date of the lease, up to the period of raising the action of reduction? The facts are fully reported in Vol. III. pp. 14, 15 and 16. *Lord Wynford.-My Lords, the questions that are now for your Lordships' consideration, are raised by two Ap. peals against two judgments pronounced by the Court be low. My Lords, from the statemeut in the case, it appears that very many years ago, the estate of Durris was put in strict entail; and the deed of entail contains these words: that the heir was not to alter, infringe, nor innovate this present tailzie, nor to dispone, wadset, sell, nor away put the said lands, baronies. and others aforesaid," nor to contract debts; and so on. This estate descended in the female line to the late Lord Peterborough. Whilst Lord Peterborough was in possession of the estate, being, as he appears to be, in a state of distress, he was anxious, if he could, to break through the fetters of this entail, and to sell the estate-and a sale was actually accomplished with a person who stands in a very near connexion to the party who afterwards took the lease, which is certainly a very important circumstance in the consideration of this case; and it is also material to recollect, that the party who afterwards took the lease was not only connected with the intended purchaser, but also the Writer to the Signet for that person. That sale was defeated, it being determined by the Court in Scotland, and afterwards in this House, that the entail could not be broken through. After this, my Lord Peterborough granted to Mr Innes a lease of this property; and upon this lease, so granted, these questions arise, * The report of this speech was delayed, with the view of its being revised by Lord Wyntord. namely, first, Whether, that lease being subsequently put an end to by the judgment of the Court below, the persons who have succeeded to the estate of Lord Peterborough were or were not entitled to the violent profits, and for what period? and, secondly, Whether the representatives of Mr Innes, for the property is no longer in him, are entitled to be paid for meliorations of the property during the pe Fiod it was in his possession, from the time of the granting of the lease up to the year 1814, when they were served with process in the cause for reducing that lease. Upon the first point, the judgment of the Lord Ordinary was, that Mr Innes was to be considered as liable to pay violent pro fits from the period of the decision pronounced in this House, in the month of July 1812; because the Lord Ordinary considered that, at that time, it was quite impossible that Mr Innes must not know that any appeal to this House must be fruitless, inasmuch as by that decision it was determined, that, under the word "dispone," which I have stated to your Lordships occurs in this settlement, this a mounted to a disposition of the property, and that therefore the lease was void under that entail. When the ques tion, however, came before the whole Court, the whole Court were of opinion that it ought to be dated back further, and that Mr Innes should be considered as liable to pay violent profits from the time when they, in the Court below, pronounced their decision for the reduction of the lease; and the question that is raised by this appeal is, Was the Lord Ordinary right in ordering the violent profits to be paid from the month of July, when all hope of any success upon the appeal was put an end to by the decision in the Duke of Queensberry's case; or, Was the Court below right in deciding that he was bound to pay those profits four months sooner, namely, from March in that year? My Lords, if there was not another question behind, I should have been inclined to think that the Lord Ordinary was right, and the Court wrong; because, undoubtedly, from the state the Scotch law was in at that time, there was enough of doubt to encourage any man to bring his appeal before this House; but I am of opinion, and I humbly, therefore, submit to your Lordships, that it will not be necessary for us to consider this point, which has been a good deal argued before us, because I am decidedly of opinion, upon another ground, that Mr Innes was liable for violent profits from the period of the judgment; nay, I think he might have been rendered liable for violent profits from an antecedent period. A passage has been referred to in Mr Erskine, in which he states, that the question, whether a party is to be considered in mala fides, turns upon the point when he is served with process. I think, when a person is served with process in an action, that that is the proper date from which to consider whether he has held mala fide or not. It is then he should make up his mind whether he will try the cause, or surrender the estate. If he thinks proper to try the cause, he ought to take upon him all the consequences of that conduct, and that would subject him, (in the opinion of that eminent writer upon the law of Scotland, Mr Erskine,) to be called upon for violent profits from the period of the ser vice. That would carry it much beyond the date which the present judgment carries it; but Mr Erskine adds in the passage alluded to—“In favourable cases, they have postponed the period when violent profits become chargeable, from that of the service of the process to that of the final decision." That, perhaps, brings us to the point upon which both cases are decided :-Whether this is that species of favourable case? Whether there is that kind of bona fides that entitles Mr Innes to be excused from the payment of violent profits to the period when the decision was pronounced, deciding the rights between him and the heritor of this estate? or, Whether it is not a case, most unlike a case of that description, which is entitled to the favourable consideration of this House? I think the latter character belongs to this case. I think there is nothing like bona fides in this case; on the contrary, if we look at the transaction from the beginning to the end, we shall see that it is a case in which a man, conversant with the practice of the law of Scotland, is taking advantage of the distresses of the heritor of this estate, to injure the estate whilst in his hands. Mr Brougham has, with great eloquence, referred your Lordships to that beautiful passage which he has quoted from Grotius; there is the same passage in a higher authority, and certainly a more eloquent one, namely, the authority of Cicero. In this case we are presented with the civil law; and I think-and I am speaking in the presence of those whose attention is now directed to the amendment of our law-it is worthy of their consideration; whether our law should not be rendered more like the law of all the other çivilized states of the world than it is at present, upon the point which gives rise to the present discussion. By our law, if I build upon my neighbour's land, thinking the land is mine, he takes that land and takes my house, without making me any compensation. By the civil law, which is the law administered in Holland, as we have the authority of Euberius; and in Spain, as we have the authority of Garcius; and in France, as we have the authority of Pos thier;-by that law, acted upon by those who lay down rules for the regulation of national conduct, if a man is perfectly satisfied in his own mind that the property is his, and he improves that property, the person who recovers that property from him must either, as it is stated in the Digest, pay him for the improvements; or, if he is poor, and not able to make the payments, he is to allow him to remove those improvements, leaving the estate in the same condition as it was previously. Mr Brougham stopped short in quoting Grotius, and left it, as if, in all cases where a man builds a house upon the land of another, he is entitled to be paid. I was astonished at the construction that was put upon that writer upon the law of nations; because, if one person enters upon the land of another wrongfully, and improves it, he has no right to be paid for the improvements. Mr Brougham lowered his statement afterwards, and certainly it must be taken with the qualification put upon it by the writers I have enumerated; and, in the language of the Code itself, the improvements must be made the party at the time he makes those improvements not being conscious that the property improved is not his; and you must collect that, not from any parole declaration-that species of evi dence you can never get-but from the whole nature of the transaction, from the very words used in the different instruments, and from the conduct of all the parties; and I have no hesitation in saying, that I am decidedly of opinion, where a case is clearly made out to be free from all suspicion, and where the party did not know that the property was not his, he ought to be allowed for those improvements; but, if all suspicion of that knowledge is not removed, he ought not to be allowed any thing. If that is not the rule by which Courts are governed, a man may take possession of my property and ruin me by improvements. That cannot be done; and without troubling your Lordships by going through all this beautiful collection of cases that we have here upon the law of all the different civilized states of Europe, I take the principle of the rule to be, that those inprovements must be made not only bona fide, but that the party must entertain no suspicion that the property was not his. Now, that being the principle, let us look at all the circumstances of this case, and see if it is possible for any man to entertain a doubt that Mr Innes did not rely upon the validity of this lease-that Mr Innes did not consider that, under this lease, he had a sufficient title to this property to entitle him to do what he did, and for which his representatives became responsible. We must not forget the attempt that was made before; and it will be for your Lord ships to say, whether this does not raise a very strong sus picion that this was another mode of succeeding in the attempt in which they had been before defeated. Then, let us come to the lease itself, and see whether the lease does not clearly shew, from the very extraordinary terms of the conveyance, that there was not the least good faith in it. In the first place, it is not a lease of any one farm, nor of any two or three farms, but a lease of all the property that Lord Peterborough had in Scotland, with all the rights and advantages that belonged to it, or were in any way connected with it, or could be derived from it. Even the pews in the church are conveyed, and the right of appointing to the living. Lord Peterborough could not lease away the patronage of the living, but he makes himself an attorney to appoint to the kirk whoever this gentleman should recommend. Then the game is all conveyed away; but there is this curious reservation, though the game is gone, that Lord Peterborough may himself come and shoot over the lands, but he must not be attended by any gamekeeper: and it is not very likely he would trouble the estate for the purpose of shooting game under any such circumstances. The lease for 76 years is to commence after the death of a young man of thirty-five, so that your Lordships must take it that this is an effectual disposition of this property for a period very little short of one hundred years; and persons in the habit of calculating these matters would not consider the freehold, after this period of one hundred years, as worth much. It is in substance, and we cannot shut our eyes against it, a conveyance of all the property, and all that belongs to it, except one thing, and they were not at that time sufficiently learned to know how to convey that away, namely, the right of voting. We are more conversant with that in this southern part of the empire. We have now found out ways by which that right may be conveyed as well as other rights. Then, my Lords, I come to another thing which is decisive. Mr Brougham touched upon it, but glanced away immediately, as he thought most prudent; because a man of his knowledge and experience could not have looked at that lease for a moment without seeing that it is grossly fraudulent. When I use the term grossly fraudulent, I do not mean it offensively; I mean in point of law. I allude to the lease of the mines. Did any man ever see a reserved rent of a thousand a year, or any other sum, and the party to have liberty to open any mines, and carry away minerals, and to pay nothing for them? In an office I had the honour of holding for some time, I was pretty conversant with these leases, and I never saw one where the reservation did not correspond with the quantity of mineral brought to grass, as was the phrase in those leases; I mean in the Duchy of Cornwall. Now, here this gentleman is to dig out the bowels of the earth, and carry it away, and pay nothing for it. I must here take notice of something which has fallen from Mr Brougham. He says, it is necessary to take up lime to manure the estate, and the coal for the purpose of the te nant. The lime they would find very little sale for, but, no doubt, they would find a sale for the coal, and other minerals under the surface of the estate. But the part of the lease relating to the timber is also very extraordinary. This tenant, taking possession of the estate, upon which we are to assume trees were growing fit to be cut, is to be at li berty to cut three acres, and not to plant ten or twenty acres, which would be the case if the lease was properly made, but he is to plant one acre of young trees for every three he cuts down. Is not this a fraud upon the owner of the estate? And then, when he plants one acre, what is to become of it at the end of the lease? The landlord is to pay for one half, and if he does not do that, the tenant is to take it away at the end of the lease. Did any man ever see such a covenant? But it is said this man was misled. He consulted professional men, and they misled him. I have said it is in vain to argue upon the propriety of consulting counsel. No man will lay out L5000 in the purchase of an estate without consulting counsel. If he did, I should say he was a great simpleton; and, though I have passed a great many years in the Courts of Westminster Hall, if I was ever worth any money, and desirous of laying it out in the purchase of an estate, I should consult counsel; but I state, as one of the Judges in the Court below stated, that the opinions given by those counsel, instead of inducing any man to think that this lease could be made, would induce him to think it was the most dangerous speculation he could enter into; for it is, in substance, neither more nor less than this-This is the very best way in which it could be done, but we do not insure you, from a difficulty that is not to be got rid of by any convey. ance; and that difficulty is the narrow estate of the gentleman about to grant it. Is not this enough to put any man upon his guard? I agree with Dr Lushington, and the able argument put by Mr Robertson, who has addressed your Lordships for the first time since I have had the honour of a seat here, and in a very able argument. I do not think this gentleman will be very much out of pocket, or have in equity much to claim. He has had for many years about L3000 a-year clear, and he has expended for that L43,000. I do not think he is much out of pocket if an inquiry is to be gone into; but your Lordships are not looking at the result of the inquiry. The question is, whether any inquiry is to be gone into? I had satisfied myself upon these grounds before I retired to rest last night, but this morning I have looked at a statute I was not before aware of, which decides this case at once. Mr Robertson referred to it, but he referred to it as the 55th Geo. III. It is the statute of the 10th Geo. III.; and I am almost warranted in saying that this lease is a fraud upon that statute. However, before I say any thing upon that, I will notice a case which was referred to, decided by the Court of Session subsequently to that period-the case of Leslie against Orme. It must have been decided subsequently, but it is not material, because it is enough for me to say, that the Judges gave no reason for the judgment—but the statute is never once referred to in argument. Whether I am accurate in the date of the statute, I do not know. It is nine years after the statute, but the statute is never referred to in argument, and the ground upon which it is put is, "That the settler is considered, upon the Act of 1785, as entitled to insert any condition he chooses," &c. (Reading an extract from the case of Leslie v. Orme.) So that here the statute is not touched upon at all. It is put upon the question, Whether these words in the entail operate upon grants under leases, or attach upon conveyances of the whole property. Let us look at the statute of 10 Geo. III. Before that statute passed, the only statute that bore upon the subject was the famous statute of Scotch Entails of 1685. Now, this statute recites the statute of Scotch Entails of 1685, and gives not only a commentary upon the law of that statute, but a history of the practice under it. It says,-" And whereas many taillies of lands and estates in Scotland, made as well before as after passing the said act, do contain clauses limiting the heirs of entail from granting tacks or leases of a longer endurance than their own lives;" so that, under the first statute, they could grant no leases longer than their own lives—“ for a small number of years only." Your Lordships will not consider 76 years after the death of a man aged thirty-five a small number of years only,"—and that much mischief arises to the public from adhering rigidly to this statute. To what extent will this statute enable you to make leases? For two lives, or any number of years not exceeding thirtyone years? If you are to make leases for two lives and thirty-one years, as if you can make four leases for nineteen years each, what becomes of that statute? It is blown into thin air; it is gone from the Statute-book. But in the next clause, if you grant a term exceeding nineteen years, 66 |