instrument of resignation is not sufficient to destroy that instrument,-(1.) As to the erasure. The word must necessarily have been either last or next, as their is no room for the specification of the year in the ordinary way. It could not be next, because that would have made the disposition bear date ten months subsequent to the instrument. The word, therefore, could be nothing else than last. A similar objection was repelled in Maxwell v. Houston, decided in the House of Lords, 30th April 1725; Robertson's Appeal Cases, p. 539, et seq.-(2.) As to the discrepancy in the day of the month, it was not necessary, in describing the disposition, to mention the day of the month. It is enough to describe the procuratory, so as to leave no doubt of its identity. II. The objec tion, although it were well founded, is not sufficient to destroy the entail; for, (1.) Although David Campbell conveyed the lands to Mr Ferrier in trust, still the radical right remained in himself. The trust-deed was merely a burden on that right, and consequently, David Campbell having in him a valid feudal title, could make an effectual entail of the lands, independent of the re-conveyance by Mr Ferrier.-(2.) David Campbell had, at all events, a personal right to the lands, in consequence of Mr Ferrier's disposition, and might therefore make a valid entail of the lands.(3.) If the feudal right be still in Mr Ferrier and his heirs, it is so in trust for behoof of David Campbell and his heirs, and consequently Mr Ferrier, or his heirs, are bound to reconvey to the truster, or his heirs, under such conditions as the truster may have directed by a deed under his hand. The deed of tailzie is such a declaration of his purpose, and such an instruction as must guide Mr Ferrier and his heirs, if now required to denude.-III. The pursuers have no right or interest to insist in the present action. It is only through David Campbell that the defender can claim; but the defender has already recognised the deed of David Campbell, which was recorded before the pursuers became his creditors. They cannot plead that they trusted to, or were misled by the record, and can no more repudiate the deed of entail than the defender himself can. The pursuers pleaded-I. The instrument of resignation is vitiated and inept,—(1.) As to the erasure, it is essential in a notarial instrument, that the warrant should be described by its date, but as the word last in the present case must be held, pro non scripto the year is left blank.-(2.) As to the discrepancy in describing the warrant of the resignation, as dated 24th, instead of 25th March, it is clearly fatal, as the resignation is described as having proceeded on a procuratory which never existed. II. The pretended resignation ad remanentiam, being void and ineffectual, the feudal right of property remained with Mr Ferrier, and is still in his hæreditas jacens; and no deed granted by David Campbell could carry the feudal right to the lands, or serve as a competent warrant for expeding charter and infeftment.—(1.) The radical right to the lands did not remain in David Campbell subsequent to the trust, but a mere jus crediti. A disposition in security, or other redeemable right, bears no resemblance to a trust, by which the lands are conveyed absolutely in payment of the debt, with the single qualification that the truster has a

right to a reconveyance of the reversion. An infeftment in security may be effectually extinguished by renunciation, payment, or intromission, but nothing less than an instrument of resignation will take away an infeftment which is not a mere security. In the case of Campbell of Ederline, and other cases of adjudication, it was merely the right of reversion which was adjudged. (2.) A personal right to the lands might enable David Campbell to assign a procuratory or precept in his author's disposition, but could never enable him to grant a valid procuratory or precept in favour of another. He had a mere jus crediti, which he might have assigned, but he could not execute a valid feudal conveyance of the estate. (3.) The deed of entail can in no sense be termed a deed of instructions to the trustee, to whom it was neither intimated nor addressed. The only instruction given to Mr Ferrier, was to reconvey and resign, ad remanentiam, in favour of David Campbell absolutely, in March 1808. Besides, the right of David Campbell to instruct his trustee in regard to the terms on which he was to reconvey, can never supersede the necessity of a reconveyance.-III. The obligation of the defender to give effect to the entail executed by his father, is nothing more than a personal obligation, which the creditors may defeat by real diligence. The entail is nothing more than an assignation by David Campbell, of his jus crediti in favour of his heir, alioqui successurus, and cannot be the foundation of a valid feudal title, in a question with a party not barred, personali exceptione, from challenging it. The case of Paul v. M'Leod seems to have been viewed as a case of fraud, and has no resemblance to the present. The case of Fairlie v. Fergusson, referred to by the defender, is in favour of the pursuers. The Lord Ordinary (Moncreiff) reported the case to the Court, with the following

The

"Note. As this case involves important questions, and is prepared on cases, it appears to the Lord Ordinary that it may be most convenient for the parties and the Court that it should be reported without a judgment. But he shall state the views which occur to him on the points of law raised:-I. He is inclined to think, that the objection stated against the validity of the instrument of resignation ad remanentiam is a good objection. There can be no doubt that the date of the disposition, containing the procuratory in virtue of which the resignation had been made, is an important and essential part of the instrument. instrument clearly bears two erasures in that date; and whatever ingenious reasonings may be used as to the words which could or did stand in the deed before the erasures were made, the Lord Ordinary apprehends that the legal rule is, that the words must be taken pro non scriptis, in which case the instrument is blank as to the year in which the disposition was executed. The case of Maxwell v. Houston, quoted by the defender, was different in this respect, the import of the clause being the same in law, with or without the word written on erasure. There is farther, in the present case, a discrepancy in the day of the month,-the instrument bearing that the disposition was dated on the 25th March, whereas the disposition founded on is dated 24th March. The Lord Ordinary thinks this alone fatal; because on the face of these title-deeds, non constat that there may not have been another disposition and procuratory bearing the date of 25th March. II. If the instrument of resignation ad remanentiam is held to be invalid, the consequence is, that David Campbell, the maker of the entail, had no feudal title under the disposition in his favour by Mr Ferrier. His titles then stood thus: He originally stood fully invested under his original titles to the estate before he conveyed it to Mr Ferrier. He had disponed it

to Mr Ferrier in trust for the payment of his debts, and with a power of sale, under an obligation to reconvey the residue to himself, or his heirs or assignees; and on this conveyance Mr Ferrier stood infeft. And by Mr Ferrier's disposition to David Campbell, there was a personal right vested in him, with an unexecuted procuratory of resignation. The question between the parties is, whether, under any of these titles, David Campbell had power to execute a deed of strict entail, in the form of a procuratory of resignation, to the effect that when the title was completed by charter and sasine, the entail should be effectual against the creditors of his immediate heir?-III. It is maintained that David Campbell had power to execute the entail-1st, In virtue of his original radical title preceding the trust-conveyance to Mr Ferrier; and 2d, In virtue of the personal right which stood in him under Mr Ferrier's disposition. The first of these points appears to the Lord Ordinary to be the most important; and he thinks that it is ruled by the principle first settled in the case of the creditors of Campbell of Ederline, January 14, 1801. It seems to be impossible to explain away the doctrine of that case in the manner attempted by the pursuers. The facts are simple :-Dugald Campbell stood infeft in the estate; he conveyed his estate, heritably and irredeemably, to trustees, expressly for payment of his debts, with power to sell, and under an obligation to reconvey any residue under a strict entail. The trustees were infeft; Mr Campbell died, and a competition arose between adjudgers from the trustees and prior adjudgers, who had proceeded directly against the estate as in hæreditate jacente of him, by charging his heir to enter. There could not be a more perfect state of the case for trying the question, whether the feudal title subsisted in the truster? The creditors who adjudged the hæreditas jacens did not adjudge any mere jus credili; they adjudged the estate itself, by charging the heir to enter; which charge necessarily implied, that it was competent for the heir to be served in special as heir of the investiture: And accordingly, the interlocutor of Lord Eskgrove, adhered to by the Court, expressly found that Dugald Campbell was not completely divested of the real right and property of his estate, by the trust right and infeftment thereon, founded on by the objectors, the same having been a trust for the granter's behoof, though it contained a power to the trustees of selling the lands,' &c. The Lord Ordinary is of opinion, that wherever an estate can be adjudged as in hæreditate jacente, to the effect of carrying a feudal title by ebarter of adjudication, it must be equally competent to the heir to be served and infeft. And he thinks it a self-evident proposition, that wherever a man's title so stands by his investiture, that upon his death his heir might be served and get a feudal title directly as heir, he himself must be in titulo, while alive, to convey the estate, subject to all existing burdens; because, if his investiture subsists to the effect of the estate being carried by the service of his heir, he must have by his sasine the powers of an undivested fiar to convey, however he may be restrained by conditions, or affected by burdens. The case of Ederline settles the point, that a trust-conveyance, almost iden tical with the trust in the present case, does not divest the granter of his feudal title, and is only to be considered as a burden on that title. The form of the question in that case appears to have been very favourable for bringing out the point. But it occurred much more lately, in a case not adverted to in the papers, the case of Mr Bellenden Kerr against the Trustees of Lady Essex Kerr. John Duke of Roxburgh conveyed his whole unentailed estates to trustees, for payment of his debts, and then for purposes to be appointed by him. On his death, the trustees were infeft in the estate. The heirs-at-law, Lady Essex and Lady Mary Kerr, challenged the deed by which the residue was settled, and having succeeded, they obtained a conveyance from the trustees, and completed their title. But afterwards a defect occurred in regard to the transmission of a part of the estate from Lady Mary to Lady Essex, in consequence of which Mr Bellenden Kerr and others, as heirs-atlaw, claimed those lands, as not having been so vested in Lady Essex as to warrant her conveyance of them. In order to ob viate this plea, it was maintained that Lady Essex and Lady Mary Kerrs, before getting the title from the trustees, had made up a title by adjudication upon a trust-bond directed

against the estate as in hæreditate jacente of Duke John himself, and as Lady Essex had a general service to Lady Mary, it was maintained that this title by adjudication-which had remained personal—was sufficient to vest a personal right in ber, which she could convey. The Court had no doubt that that adjudication by trust-bond was a valid title, clearly assuming that a feudal title remained in Duke John and in his hæreditas, notwithstanding the trust-deed and the infeftment on it. It was found indeed to have been superseded by the complete feudal title established under the conveyance of the trustee. But there was no doubt entertained that it was a valid form of obtaining_a feudal title in the estate, subject to the burden of the trust. In the case of Sir James Fergusson, the conveyance to Lord Her.. mand was ex facie absolute and unconditional. The Lord Ordinary therefore thinks the point quite settled; and as he cannot enter into the idea that these cases suppose merely the competency of adjudging a jus crediti or personal claim to be made effectual through the trust, but, on the contrary, thinks that they necessarily import that a direct feudal title might be taken as remaining in the truster, he is of opinion that the plea of the pursuer is thereby met by a conclusive answer.-IV. The separate ground taken by the defender, that the entail was effectual under the personal right vested by Mr Ferrier's disposition, appears to the Lord Ordinary to be very doubtful. The title by infeftment, completed in the defender's person, depended on the resignation ad remanentiam by David, and must therefore be laid aside; for though it might have been made effectual in another manner, this was not done. Then, although it was held in the case of Livingston v. Lord Napier, that a personal right might be entailed even against creditors, it is to be observed, that James Livingston the institute, or first substitute in that case, was not the heir even of the personal right, and far less heir of any investiture. He had therefore no other title. But in the present case, the defender was the heir-apparent under Mr Ferrier's disposition, and in the reversionary right under every view of his father's title. It would be at least a very difficult matter to establish that his creditors are affected by such a personal entail, consistently with the decisions in the case of Denholm of Westshiel, and other similar cases. Yet the Lord Ordinary is sensible that there is considerable difficulty in this question. The procuratory of resignation creating the entail, simply designs the granter as heritable proprietor, without reference to any particular title. If the Lord Ordinary were to pronounce a judgment, he would adopt nearly the words of the first part of Lord Eskgrove's judgment in the case of Ederline, and then find that David Campbell, not having been divested by the trust-deed, had power to execute the procuratory of resignation containing the entail; and that the titles made up under it were validly and effectually made up; and on this ground assoilzie the defender."

The Court, 4th March 1831,

"Find, that David Campbell, not having been divested by the trust-deed, had power to execute the procuratory of resignation containing the entail; and that the titles made up under it were validly and feudally made,-and therefore assoilzie the defender from the conclusions of this action, and decern."

M'Millan and Others appealed, pleading-I. That the infeftment in the person of the trustee extinguished for the time the whole feudal right which had belonged to David Campbell, and that that feudal right could not be revived, except by a reconveyance from the trustee, completed according to the feudal forms. -II. The ground assigned in the case of Ederline, for sustaining the adjudication which was led against the heir of the truster, was, that the trust was created "for the granter's behoof." And the appellants can easily understand, that a trust of that description may be so constituted as to impair in no degree the substantial right of the granter. A trust for the management of the granter's property, defeasible at the will of the granter, and under which the trustee is respon

Of

sible to the granter alone, may fairly be held not to impair the radical right of the truster. In like manner, a trust contained in a mortis causa settlement, and the object of which is the distribution of the granter's estate amongst his gratuitous legatees after his decease, stands almost precisely in the same situation. this description was the trust-deed of the Duke of Roxburgh, alluded to in the Lord Ordinary's note. Down to the period of the Duke's death, the infeftments by which he held his estates could not be affected by a deed, the effect of which was necessarily suspended until after his death. In short, his Grace died infeft in the subjects in which Lady Mary and Lady Essex Kerr might competently have made up a title to him by special service.-III. But there is another view of the case to which the appellants conceive that sufficient attention has not been given. A trust may be created, either by a qualification expressed in the infeftment of the trustee, or it may be created by a separate writing, or even by the simple acknowledgment of the trustee himself. The difference between those several species of trust may often be very important in questions with third parties deriving right from the trustee. But in questions between the truster and trustee individually, it seems very plain, that a trust being admitted or proved, the rights of the truster and trustee must be the same, whatever be the nature of the proof by which it is established. In terms of the Statute 1696, c. 25, a trust can be proved only by the writ or the oath of the trustee-but being once proved in either of these ways, the trust is as effectually constituted as if it had been incorporated in the trustee's infeftment.-IV. Two or three decided cases were mentioned at advising the cause in the Court of Session, as supporting the judgment then pronounced, but which the appellants, with all submission, cannot regard in that light. Answered-I. The conveyance by David Campbell to Mr Ferrier, did not divest David Campbell of the radical right to the property, or put an end to the feudal investiture in his person. It was merely a conveyance in trust for a limited pose-the payment of debts; and although it contained powers of sale, these powers were merely granted in explication of the trust, and are common in a mere conveyance in security. There was no intention on the part of either party that the lands should be given or taken in absolute satisfaction of the whole debts, or of any definite part of them, or should belong to Mr Ferrier himself. The lands were merely placed under a certain control for the immediate security and ultimate payment of the creditors, and even that control ceased when the object was accomplished. Even if David Campbell had died without obtaining any reconveyance, his heir could have made up a valid feudal title to the lands by a service in special as heir of the investiture, or the creditors of David might have adjudged the estate as in hæreditate jacente. This was decided, in the case of Campbell of Ederline, in 1801, and has been uniformly recognised as settled law ever since. II. At all events, David Campbell had a personal right to the lands, and therefore was in a condition validly to make the entail; and the present defender is not at liberty to defeat it, more especially

pur

after having homologated it before the present pursuers became his creditors.

I

Lord Wynford.-My Lords, this is an action of reduction and declarator, which has been heard in the Court of Session in Scotland. It was brought by the creditors of a person of the name of Campbell, to set aside a settlement, which had been made by Campbell the father, of an estate. My Lords, the question for your Lordships is, Whether Campbell the father, at the time of making that settlement, had a sufficient legal estate to enable him to make that settlement. The facts are these:Campbell the settler, had conveyed away this property by a deed, to a person of the name of Ferrier; and it appears in the case, that the object of the conveyance was to make Ferrier a trustee, for the purpose of paying creditors. If any part of the proceeds of the estate remained, he was to pay these proceeds back to Campbell the father, or if any part of the estate remained unsold, he was to reconvey that estate to Campbell the father. A part only of the estate was sold-the remainder the trustee intended to reconvey. He made a reconveyance which the Judges in Scotland decided was imperfectly made, aud consequently, that no estate passed back by that conveyance. The question then is, whether Campbell the father-the estate having been conveyed in the manner I have stated to your Lordships, and no effectual reconveyance being made of such estate-was disabled from creating the settlement which he did create of his property. cannot, my Lords, be misled by the prejudices of an English lawyer; because if this case had occurred in England, undoubtedly Campbell the father, would not have had such an estate as would enable him to levy a fine, or suffer a recovery, because the legal estate was clearly out of him; but we must consider this is a case depending on Scotch law,-and your Lordships cannot know what the Scotch law is, except by Acts of Parliament, and by the decisions of the Courts of Scotland. I would state to your Lordships, that I should humbly hope you would be very careful how you reverse a decision of Scotch Courts of Justice, when proceeding either on the practice of pleading in the Court, or the practice of conveyancing; because it is quite impossible that persons in this country can be so conversant with that practice, or those forms of conveyancing, which would follow from the application of that law, as the Judges of the Court of Session. This is a pure question of Scotch conveyancing; the only question being, whether, notwithstanding this conveyance, there was not, according to the understood law of Scotland, a sufficient legal interest remaining in Campbell still to enable him to make this settlement. If he had been living in England, a Court of Equity-though he had made such a conveyance-would have compelled the person in whom the legal estate was, to complete his conveyance ;-it would have been imperfect at common law; but there is a great difference in the Courts of Scotland in that respect, for there is in that country but one Court exercising a jurisdiction of law and equity, and that may have led to the difference upon this subject. The Scotch Judges have decided, that, notwithstanding this conveyance, as it appeared upon the face of the deed itself, it was a conveyance for the purpose of paying debts. We should say, in England, in such a case, that the settler still remained infeoffed in this property-still possessed of such a legal estate as to be able to convey it. Under such circumstances, we should clearly be acting against equity, if we set aside this settlement. We are not to hesitate in doing that, if we see that the law clearly requires it; but we must see that to be perfectly clear before we overturn the judgment of the Court of Session, which is consistent with the justice of the case, which stands upon, perhaps, an artificial sort of reasoning, but which we are bound to consider to be consistent with the Scotch law. This judgment appears to me to be consistent with equity, for this reason, that if the interest was not all disposed of, it belonged to Campbell, the original settler; and those who claim under him have a right to the disposal of it. A trustee holding under such a deed in this country, would have been compelled to reconvey that title. What right, in equity, then, have the creditors of Campbell's son to come and claim;-they can have no right but through the father; and if the father had made a strict settlement, they ought not to appear and defeat that settlement ;

-

the settlement was made by the father, not for the benefit of immediate successors, but the benefit of the line of successors. The Scotch Judges have held, that in consequence of the deed to Ferrier, the legal estate was out of the father, but that as it was conveyed to Ferrier for a particular purpose, enough of it remained in the person who conveyed, to enable him to make such a settlement as that before your Lordships. My Lords, I consider this as a perfectly decided case. In that which is laid down by the learned Judge, my Lord Moncrieff, who was the Lord Ordinary in this case in the Court below, I would express my entire concurrence. His Lordship referred to two cases, which I cannot distinguish from the present, in which the same doctrine is asserted: The one of a settlement by a person of the name of Campbell, a gentleman of the same name with the settler in the present case, who conveyed his estate in nearly the same words, giving a power of sale, for the purpose of the estate being sold for the payment of debts. There was no reconveyance of that estate; but the Court, about 30 years ago, held, that the person originally conveying had still the legal estate in him. This appears to me precisely the same with the present case. The words in which Lord Eskgrove delivered his judgment, are certainly very strong. In giving judgment, bis Lordship said, "A conveyance, such as this, does not divest the granter of his feudal title, and is only to be viewed as a burthen upon the land;" those words are express," the feudal title remains undisturbed in the settler of the property." This cause, which, as I have stated to your Lordships, was decided about 30 years ago, was never appealed against to this House. If there was to be no law in Scotland, except that settled by appeals to this House, there would have been very little law indeed; but decisions acquiesced in, are of great authority, as there is unquestionably a strong disposition on the part of the good lieges of Scotland, where they can find a good reason for appeal, to bring the case under the consideration of this House. It appears to me, therefore, that we must consider the judgment of the Court of Session in this case, so acquiesced in, as founded in law. The Bar of Scotland is, as your Lordships know, a most enlightened body of men. I have no doubt it was as much so at that period as it is now; and I do not know a more learned body of men than those who constitute that Bar at present. That appears to me, then, to be a case of great weight. In a subsequent case, the same question came under the consideration of the Court, in the case of the Duke of Roxburgh, where a conveyance similar to the present was made, and where it was held, that, notwithstanding, the Duke of Roxburgh still remained the legal owner of the estate, and was entitled to make a legal conveyance of that estate, as the legal owner. Here are, therefore, two decisions. Is there, then, any decision to oppose these; if not, then unquestionably the balance of authority which constitutes the rule of the Court in cases of this description being all on one side, your Lordships would be bound to affirm this judgment. The learned Lord Advocate, whom your Lordships have heard at your Bar, who appears to have paid a great dead of attention to the case, and who has brought forward all the learning upon it which the books of law afford, has referred your Lordships to one case, the case of Sir Adam Fergusson of Kilkerran, who made a new fen of the lands of Drumellan to his brother, Lord Hermand, his heirs and assignees whatsoever,-upon which Lord Hermand was infeft. After this, Sir Adam Fergusson conveyed away his property; the question was, whether he was in a condition to make that conveyance, having previously made a conveyance to Lord Hermand. The Court of Session were of opinion that he was in no condition to do that-the legal estate having passed to Lord Hermand; but your Lordships will see the distinction between that case and this. In that case, there was no object expressed, such as the payment of debts. In the present case, there is the expression of that object, and the object ceases for which it was made; so that every one would see that it was not conveyed to him absolutely, but for certain purposes. A person claiming an interest, therefore, would be called upon, in the present case, to look and see whether those purposes were answered or not. the conveyance to Lord Hermand, by the brother, there was nothing of the kind. It was a conveyance, probably, for love and affection, and was an absolute conveyance; and after the object

In

for which it was conveyed was accomplished, the estate was reconveyed, but the conveying it back appears to be an acknowledgment that that was a valid conveyance. The deed objected to being a deed executed between the first and the second conveyance, it appears to me it is impossible that that can stand. Lord Hermand had reconveyed it before the death of his brother, and from that moment Sir Adam Fergusson would have been in the legal possession of the estate; but a reconveyance, after a certain deed had been made, could not give validity to that deed; and there is a manifest difference between these two cases. A person looking at that deed, could not possibly have said that a scintilla of interest, either in law or in equity, remained in the legal owner of the estate. My Lords, this is the only case which has been attempted to be brought to bear upon this case, by the learning by which your Lordships have been assisted at the Bar this day. It appears to me there is a manifest distinction between the two cases; therefore, upon the weight of authority, as has been already stated by the learned Judges of the Court of Session, it appears to me we are called upon to affirm this interlocutor. I shall therefore humbly advise your Lordships to affirm it, and I should humbly advise your Lordships to affirm it, with costs. I never recommend to your Lordships to give what are called vindictive costs;-they should never be given by way of punishment, for that is preventing the party doing that which, by the law of this country, he has a right to do; but if a person thinks proper to appeal, he ought to do it at his own expense, and not at the expense of the other party; that is strict justice between man and man. I know it has been usual to mention a particular sum, but I understand from one of your Lordships' officers, from whom we are in the habit of receiving great assistance, that that practice has been lately departed from in some cases. I very much approve of that departure. I feel that it is desirable, before your Lordships decide what you should give in the shape of costs, that you should be informed what the costs actually amount to. I shall therefore humbly recommend to your Lordships to postpone the consideration of the question of costs, desiring, at the same time, that the agents for the respondent will submit to the Officer of the House their bill, that the Officer of the House may inform your Lordships on another day, as to the amount. I shall therefore now only humbly move your Lordships, that the judgment of the Court below be affirmed.

Interlocutor affirmed.

Appellants' Authorities.—Douglas of Kilhead. Creditors of Ross of Kerse; Mor. p. 15,616. Monboddo's Cases, Brown's Supp. 5, p. 907; Mor. p. 10,300. Bell's Cases, p. 166. Gordon's Trustees v. Harper, 4th December 1821; Fac. Col. Stair, II. 11, 6. Bell, II. p. 291-2-3, 5th edit. Brown's Supp. 5, p. 310. Munro v. Mackenzie, 27th January 1756; Bell, Vol. II. p. 496. Carmichael v. Gibson Carmichael, 15th November 1810; F. C. Fairlie v. Sir James Fergusson and Others, F. C., 11th July 1827. Mure and Dalrymple v. MacAdam, 7th March 1781; Lockhart v. Wingate, 19th February 1819.

Respondents' Authorities.-Maxwell v. Houston, 30th April 1725; Robertson's Appeal Cases, p. 539. Campbell of Ederline, 14th January 1801; Mor. v. Adjudication, App. No. 2. Fairlie v. Fergusson, ut supra. Napier v. Livingston, 20th July 1792; Brown's Supp. 5, p. 888. Paul Robertson's Trustee v. M'Leod, 28th May 1828; F. C.

First Division.-Caldwell & Son, Appellants' Solicitors.Alexander H. M'Dougall, Respondents' Solicitor.

29th June 1832.

No. 2. THE EARL & COUNTESS OF STRATHMORE, Appellants, v. WILLIAM EWING, Respondent.

Bill of Exchange-Husband and Wife-Obligation-1. Held, affirming decree of the Court of Session, that a person was liable for certain bills, although he alleged, that under a diligence and proper accounting, he could show that the amount claimed was not due.-II. Decree by the Court of Session against a married woman, vestita viro, as joint accepter of the said bills, reversed.

The late John Buchan, W.S., acted as agent for the appellants. Many bill transactions took place between them. Mr Buchan died in 1822, when both his and the appellants' affairs were involved in much confusion. The respondent was thereafter decerned his executor-creditor, and raised the present action against the appellants, for payment of nine bills, which he had found in the possession of the deceased, amounting to nearly £3000. The appellants lodged defences, objecting, that Mr Buchan had never rendered a specific account of his intromissions, whereby the amount of debt might be ascertained. The Lord Ordinary decerned in terms of the libel, and the Court ultimately adhered. The defenders appealed, plead. ing,-I. Considering the relative situations of agent and client, in which the late Mr Buchan, and the appellant, Lord Strathmore, stood to one another for so many years, and the long train of transactions which took place between them;-and, considering that, on the one hand, Mr Buchan intromitted with various funds and securities belonging to Lord Strathmore, and, on the other hand, that the bill transactions in which they were mutually concerned were numerous, complicated and connected with one another; that most of them were entered into for the purpose of raising money at the Banks, without any sum being actually advanced at the time by the drawer to the acceptor, and that one bill was often granted in order to raise means for retiring or paying a former one ;and, considering that, from the circumstance of Mr Buchan being Lord Strathmore's agent and man of business, the whole documents connected with these transactions were in the hands and keeping of Mr Buchan ;-the respondent as executor-creditor of Mr Buchan, deceased, is not entitled to pick out and select from the repositories of that gentleman, such individual bills or documents as may best serve for the foundation of an action against the appellants, and to pursue for payment of these, without first, or at least unico contextu, exhibiting an account of Mr Buchan's intromissions, and showing the state of the whole transactions between him and his clients, the appellants. II. Before decree for payment of the bills libelled on in the summons should have been pronounced against them, the appellants were entitled to obtain their demand of a diligence in the usual form, to enable them to recover and get access to the papers, documents and account books, in the repositories of Mr Buchan, their agent, as well as for the recovery of any other documents connected with the bills, and other transactions which had taken place between that gentleman and them, and by which they averred they would prove that these bills were not due by them to him.-III. Even deprived, as they have been, of access to the papers and accounts connected with the transactions that took place between them and Mr Buchan, the appellants have actually condescended upon various intromissions with their funds by that gentleman, which have never been accounted for, and for which no credit is given in the present action; and an account of these has been demanded in the action of count and reckoning that has been raised against Mr Buchan's representatives, by the appellants, since the commencement of the present action.

-IV. Notwithstanding their having been deprived of access alike to their own papers and to those of Mr Buchan, and to all that can throw light upon the transactions in question, the appellants have condescended upon certain specific objections to the particular bills, of which payment is demanded in the summons; although it is clear that this cannot be satisfactorily done without a knowledge of the state of the whole transactions between Mr Buchan and the appellants, which can only be obtained by production of the whole documents, books and accounts, and an investigation of these by a professional accountant. V. Certain of the bills and notes libelled. on in the summons, have the name of the appellant, Lady Strathmore, as joint acceptor upon them; and for these, decree has been pronounced against her, individually, and steps have been taken upon that decree against a separate estate which she has, exclusive of the jus mariti. But this is contrary to the principle of the law of Scotland, established by a long train of decisions, that a married woman, fœmina vestita viro, is not capable of incurring personal obligation, even with the consent of her husband.

The respondent made no appearance.

Lord Wynford.-My Lords-There was a case argued before your Lordships yesterday, of Lord Strathmore against Ewing, which was an appeal against a judgment of the Court of Session in Scotland. Your Lordships are placed in rather an unfortunate situation in this case. It was an ex parte proceeding, and I was afraid of giving judgment in it yesterday, having heard only one side, and I thought it right, therefore, not to advise your Lordships to dispose of the case finally, till I had had an opportunity of reading every scrap of paper belonging to it. My Lords, several questions arise in this case. It was an action brought to recover the amount of certain promissory-notes and bills of exchange. There appeared to me at first, to be some doubts as to the bills of exchange, but after some consideration, I do not entertain any doubt upon that part of the case. These bills are found in the hands of Mr Buchan, the person that the plaintiff in the action below represents. There is evidence that these bills of exchange were paid by him, and he is entitled to recover to the extent of these bills. With respect to the promissory-notes, many of them appear to be joint promissory-notes by Lord Strathmore and Mr Buchan. Now, without some evidence, it would appear that they were given for a joint debt; and it would be improper to charge Lord Strathmore with the whole. But upon looking into the printed cases, I find that the Judges below state, that there is very satisfactory evidence that these promissory-notes were given for the benefit of the Earl of Strathmore; and if they were paid by Mr Buchan, he has a right to recover for that amount in this action. What evidence they had of that kind, I do not know. I have read through every letter. They are not so explicit as I could wish, but they most clearly prove that most of these transactions, if not the whole, were for the accommodation of the Earl of Strathmore; and it appears from these letters, that this unfortunate man, Mr Buchan, had been reduced to beggary by the advances be had made for Mr Bowes, before he became Lord Strathmore, and for the accommodation he afforded him, by becoming security upon these bills. And there is one letter written after these transactions have closed, in which that is distinctly stated. It was argued yesterday, that there was an account between the parties, and that your Lordships could not proceed till that account was taken. But after the letter written from St Omer, long after the transaction had closed, it is clear it was one man coming forward to save the other, and that has happened in this case that too often happens, that instead of one, both are ruined together; and it appears by the evidence in this cause, that this unfortunate man, Mr Buchan, was ruined by his unfortunate connexion with this party. I cannot, therefore, advise your Lordships, though we have beard nothing on the other side,-under all the circumstances, though I