discovered documents: but the pursuer and defender exhausted their pleas in regard to these.

The Court, on 24th February 1835, decerned in terms of the libel, and found neither party entitled to expenses (for opinion of Court, see Vol. VII. p. 261.) -Against this judgment an appeal was brought by Sir Charles Halkett.

The appellant maintained in his case-1. That he in no shape represented the granter of the obligation in 1682. He inherited none of his property; he made up no title as heir; and therefore it was impossible to maintain the present claim against the appellant: Earl of Aberdeen's Trustees v. Lord Belhaven's Trustees, 22d November 1821. 2. The appellant denied expressly in the Court below, that he represented his father universally; and no sufficient evidence was produced or referred to in order to fix such representation on the appellant: Maitland of Pitrichie in 1757; Mor. p. 11,166. Case of Blount in 1783; Mor. p. 9731. Lord Fife and General Duff, 7th March 1828; 6 Shaw's Rep. p. 698. 3. It was, without sufficient evidence, held in the Court below, that the appellant's father, Sir John Wedderburn, afterwards Halkett, would have been liable in the present claim, had he, in place of the appellant, been still in possession of Pitfirrane at the date of this action. And it was, on grounds equally untenable, concluded that this claim had transmitted against the appellant: Stair B. I. t. 7, § 12. Ersk. B. I. t. 1, § 25; B. III. t. 7, § 3. Robertson v. Strachan, 29th July 1760; Fac. Coll. Mor. p. 8087. 4. The predecessor of the respondents, by omitting to claim in the judicial ranking of Henry Wedderburn's creditors in 1780, and by allowing Sir John Wedderburn to be ranked, were barred from afterwards alleging (especially after the elapse of upwards of forty years) that Sir John was not a legal creditor of Henry Wedderburn: Bell's Com. Vol. II. p. 287, 317.

The respondents pleaded in addition, that the obligation of warrandice in question was not lost, nor in any degree affected by the negative prescription, but still formed a valid and complete obligation against the party who should be found to be the representative of the granter, John Wedderburn of Gosford. Prescription, as applicable to actions of warrandice, begins to run not from the date of the obligation on which the action proceeds, but from the date of eviction only; since until eviction there is no distress, and consequently no room for the creditor to sue upon his right: Statute 1617, c. 12. Ersk. III. 7, 36.

Lord Chancellor.-My Lords, the only point in this case which requires particular observation, is, whether the appellant, Sir Charles Halkett, is liable to the obligation of warrandice entered into by Sir John Wedderburn in 1688; for of the respondents' title under it, there does not appear to be any doubt, notwithstanding the defences which were set up against their claim. Sir Peter Wedderburn, the brother of Sir John, was served heir to him as heir of line. He therefore, by the law of Scotland, was clearly liable to all the obligations of Sir John, and amongst others, to the warrandice in question, and this obligation became known, for which he was personally liable, without regarding the value of the property he inherited. Sir Peter settled the estate of Gosford upon his second son Charles, another estate, Pitfirrane, the property of his wife, being settled upon his eldest son. He also settled other property, including a wadset right to 62,000 merks Scots, which had remained unpaid of the purchase money, upon the sale of the estate, as to

which the warrandice had been given upon his son Charles, upon condition of Charles taking upon himself the payment of all his debts. Charles, upon Sir Peter's death, entered into possession, and enjoyed the Gosford estate and the other property, including the wadset, till his death, but did not make up titles to the estate. Upon his death in 1754, his son John made up his title by a general service to him as nearest heir-male of line, tailzie, and provision, and succeeded to the estate of Gosford and the other property settled, whereby he became heir of provision to his grandfather, the entailer, and universal representative of his father Charles. He afterwards sold part of the estate to Lord Elibank for £8855. At a subsequent period, that is in 1770, Pitfirrane, which had been enjoyed by the sons of the eldest son of Sir Peter Wedderburn, came by the failure of the line to Sir John Wedderburn. Both estates being thus united in Sir John Wedderburn, he surrendered Gosford to his younger brother Henry, and assigned to him the wadset for 62,000 merks. He took upon himself all the obligations to which Sir John was subject, as had been provided for in the original settlement of Gosford. Upon the subsequent bankruptcy of Henry, £17,205 (consisting of the £15,500, with accruing interest,) was claimed and allowed to Sir John on that account, and the wadset was again assigned to him in part satisfaction of that sum. This state of circumstances seems to leave no doubt of the liability of Sir John, the defender's father, to the obligation in question. Upon his death, the defender was served heir of line, taillie, and provision to his father, and succeeded to Pitfirrane and the other property, which imposed upon him the liability to all the obligations to which his father had been subject, and amongst them to the charge in question, although the event which has occasioned the demand had not then occurred. The estate of Pitfirrane, to which the defender succeeded, though subject to a destination, was not secured against a sale, or the contracting of debts by the party entitled. It was contended that the Judges below were not justified in founding their judgments upon these circumstances, inasmuch as it was not properly put in issue that Charles, the son of Sir Peter, had taken upon himself his father's debts, or that Sir John, upon the sale of Gosford, received part of the proceeds, and that the deed of the 27th of October 1725 was not in issue. This objection, it was said, was not relied upon below; and it appears in page 24 of the appellant's case, that upon the production of the documents relied upon to prove those facts, permission was given to both parties to add to their cases, and the appellants accordingly prepared an additional case with reference to those documents, in which the objection to their admissibility, upon the ground of their not being in issue, does not appear. A Court of Appeal will not readily listen to an objection of this kind, which was not made in the Court below, and in a case in which it appears that no injustice has been done, both parties having had, and having availed themselves of the opportunity of discussing the facts alleged not to be regularly in issue. It is true the ground upon which the defendant's liability is now contended for, differs materially from the grounds insisted upon by the pleas in law, inasmuch as the documents produced in the progress of the cause, and which form the substance of the additional cases, show that Charles, the son of Sir Peter, when he took the Gosford estate, took also the wadset and other property, and by the acceptation thereof, he and his heirs and assignees whatsoever, became burdened with, and bound and obliged to pay all the debts whatsoever of Sir Peter, which might happen to be resting at the time of his decease. Such are the words of the disposition and assignation of 27th October 1725. The debts and obligations of Sir Peter, of which the warrandice in question is one, became the debts and obligations of Charles, and that Sir John, the son of Charles, was his heir, and made up his titles as heir of line and provision to him; and that the defendant was son and heir to his father, and made up his titles as heir of line to him so that if the obligation in question became the debt of Charles, the liability of John, his son and heir, and the defendant, his son and heir, so claiming titulo universali, seems sufficiently clear. It is however to be observed, that these additional facts are no more than additional evidence to prove the representation upon which the pursuer founded his original claim; and that if they are to be considered as raising a new ground of claim, they were, by leave of the Court, made the sub

ject of additional cases on each side, and although the fact of their not being in issue, is stated in the additional case of the appellants, no objection appears to have been raised or relied upon below upon that ground; but each party having exhausted their observations and arguments upon those additional documents, the judgment of the Court was taken upon the whole case. Under these circumstances, I cannot suppose that your Lordships will think it right to give any weight to this objection; but if satisfied of the liability of the defender upon the whole of the case, that your Lordships will think it right to affirm the interlocutor appealed against, with costs.

Interlocutor affirmed, with costs.

Second Division.-Lord Medwyn, Ordinary.-Spottiswoode and Robertson, Appellant's Solicitors.—[W.H.D.]

4th and 18th March 1839. HOUSE OF LORDS.-(W.H.D.)

No. 3.-J. F. GORDON and OTHERS (Clyne's Trustees), Appellants, v. DAVID CLYNE, Respondent.

Deathbed Title to Challenge - Revocation - TestamentReserved Power-Lapsing-Expenses-Interim Execution pending Appeal-1. Where a party executed in licge poustie a deed excluding his heir-at-law, and afterwards, on deathbed, another deed altering the former in some respects, and equally excluding the heir-at-law- Held (affirming the judgment of the Court of Session), that a clause of revocation in the deathbed deed of the previous one, "in so far only as it interferes with the present deed," was, in the circumstances, an absolute revocation thereof, so as to reinstate the heir-at-law in his right to challenge the deathbed deed. 2. It is no valid objection to an application by a successful party, suing in forma pauperis, for interim execution pending an appeal, that he has appended to his petition a written and not a printed copy of the appeal, or that, being on the poors' roll, he can have incurred no expenses. 3. An appeal against an order for interim execution, is no ground for suspending the operation of the order-the question as to directing or withholding interim execution, being entirely left to the discretion of the Court of Session by Statute 48 Geo. III. c. 151, § 18. 4. Questions, Whether, where a party and his parents executed mutual mortis causa deeds in each other's favour, an appointment of trustees by the deed of the parents was, in the circumstances, to be taken as applicable also to the deed by their son, or a nomination of trustees by a deed on deathbed, was an effectual exercise of a reserved power to nominate trustees, contained in a previous deed executed in liege poustie, so as to bar the challenge of the heir-at-law? and Whether a mortis causa deed, bearing to be granted" in the event of my predeceasing my parents," was, in the circumstances, to be held as lapsed by the granter's survivance of his parents?

The late David Clyne, S.S.C., died on the 1st November 1833, having executed upon the same day a general trust-disposition and settlement of his whole. property in favour of the appellants. The only heritable subject carried by this disposition, was a house in Albany Street, Edinburgh, belonging to Mr Clyne. Previous to this, on the 22d August 1815, Mr Clyne executed a disposition, "in the event of my predeceasing my parents, without leaving lawful issue of my own body," in favour of William Clyne, his father, and Margaret Swanson his mother,

"during their mutual lives, and to the longest liver of them two, and after the death of the longest liver, to and in favour of any person or persons, or for such uses, ends, and purposes as I (Mr Clyne) may name and appoint, by any deed I may execute at any time of my life, and even on deathbed; and in case of my dying without having executed such deed, then to and in favour of such person or persons as shall be named and appointed in any deed that shall be executed (according to law or agreement between themselves in such deed) by my said parents;

and for the same uses, ends, and purposes, with the same powers, and under the same provisions and declarations; which deed of theirs, when so executed, I do hereby declare shall form a part hereof, and that this my deed shall be as effectual for conveying my whole means and estate, and regulating the succession to the same, in the same way and manner as shall be appointed by the said deed of my parents, as if their said deed were already executed, and herein copied verbatim, any law or practice to the contrary notwithstanding."

This deed contained a conveyance of all Mr Clyne's property, real or personal, that belonged to him, or might belong to him at the time of his death; and his parents, and the foresaid persons to be named by himself, and failing such nomination, the persons to be named by his parents in their deed, were appointed his sole executors. Full power was reserved by the granter to revoke or alter, in whole or in part, as he should think fit; and the deed was declared valid and effectual in so far as not altered or revoked.

In the following month, Mr Clyne's father and mother executed a mutual trust-disposition and settlement, with the voluntary concurrence of their son Mr Clyne, in favour of each other during their lifetime, and the longest liver, and after the death of the longest liver, in favour of the said David Clyne, and the heirs of his body, and his assignees; whom failing, in favour of certain parties as trustees, for the uses, ends, and purposes therein mentioned, of the whole estate, heritable and moveable, and all their other property and effects, in the usual terms, for the purposes therein mentioned, and, inter alia, for the purpose of converting their effects into cash, and, after deducting debts and expenses, with instructions to divide the produce into ten parts, whereof one tenth part was declared to be payable to the children of the deceased Alexander Clyne, late tenant in Sordale, of which family the respondent is the eldest son. The deed then contained the following reservation :

Reserving to us, and the survivor of us, at any time of our life, to appoint, as we may see fit and necessary, other persons as trustees for the purposes aforesaid, either in addition to or in room and place of the trustees before named, which trustees so to be named shall have the same powers as the trustees herein before named, &c. ; and farther, reserving full power and liberty to them and to the survivor, but only with the express advice and consent of the said David Clyne, and not otherwise, at any time of their lives, and even on deathbed, to alter, innovate, or revoke the same, in whole or in part, and declaring that any alterations we may make, if done by a regular writing subjoined hereto, or by a paper apart, shall be as valid and effectual, as if they were engrossed in this deed, under which declarations these presents are granted, and not otherwise."

To this deed a codicil was afterwards subjoined, whereby three trustees were appointed in room of two who had died, and one whose appointment was recalled; and an alteration was made as to the distribution of one share of the estate. This codicil was dated 30th October 1826, and was subscribed both by Mr Clyne and his parents, in token of its having been executed with his consent.

Mr Clyne was predeceased by his father and mother. His trust-disposition and settlement of 1st November 1833, in favour of the appellants, proceeded on the narrative, namely:

of January 1828, and the death of my father on the 30th day of December 1829 years; do therefore hereby, and for other good causes and considerations me hereunto moving, give, grant, assign, dispone, and make over" (to and in favour of the appellants)," and to the survivor of survivors of such of them as should accept, the major part alive and accepting being a quorum, and to such other person or persons as they or I myself may afterwards appoint as trustees, for the uses, ends, and purposes therein mentioned; and, inter alia, for payment" of an annuity of £10 Sterling to the respondent."

The deed concluded with the following clause:

"And I do hereby revoke and recal the foresaid settlement executed by myself on 22d August 1815, and another settlement executed by me in voluntary concurrence with my parents, upon the 30th day of October 1826 years, and all other deeds and settlements, if any, in so far only as they interfere with the present deed; but declaring always that the same, in so far as not altered, shall be valid and effectual."

The respondent, who was the cousin-german and heir of conquest of Mr Clyne, brought a reduction of this settlement on the head of deathbed, in so far as the heritage was concerned. To this action the appellants gave in the following preliminary defences: 1. The pursuer (respondent) is barred from challenging the deed under reduction, in consequence of the settlements executed by Mr Clyne and his parents in 1815. These settlements were not absolutely revoked by the deed under reduction, but only in so far as they interfered with the last deed, so that, if this settlement could be reduced by the pursuer, the former settlements would revive. 2. The pursuer has no legitimate interest to reduce the deed now under challenge, as his interest is much greater under the last settlement than it would be under the former deeds, which would necessarily regulate Mr Clyne's succession, if the settlement now under reduction were reduced. 3. The deed under reduction having been executed agreeably to reserved powers in the settlements of 1815, the defenders (appellants) have, in their persons, a sufficient title to exclude the challenge here brought forward on the part of the pursuer.

A record having been made up on these preliminary defences, the Lord Ordinary ordered cases.

The respondent pleaded-1. The deeds of 1815 had lapsed and become extinct before the deed of 1833 was executed. The deed by Mr Clyne himself was to be operative only in the event of his predeceasing his parents, without leaving lawful issue of his own body, so that by his survivance, that deed became a nullity. Again, the deed by his parents was in favour of him and his assignees; whom failing only, in favour of trustees; but as Mr Clyne survived his parents, and took the benefit of their disposition, so that their property was mixed up with his own, the ulterior trust was thereby rendered inoperative. But at any rate, the two deeds by Mr Clyne and his parents were unconnected, being executed by different parties, and in relation to different estates. They cannot, therefore, be viewed as one continuous settlement, though their nature, and the purposes with which they were framed, were similar; nor can the parents' deed be considered as a nomination of trustees under Mr Clyne's own deed. But whatever be the case as to this, it is contended that the deathbed deed ought to be received as a nomination by Mr Clyne under his previous deed, he having reserved to himself the power of nominating

disponees at any time during life, and even on deathbed. But a destination hæredibus nominandis, taken per se, does not convey the property so as to extinguish the rights of the heir-at-law; for if no nomination be afterwards made, the heir-at-law will take: there can be no disposition where there is no disponee. The nomination is therefore necessary to complete the conveyance, and must itself be free from objection, to have that effect. If made in lecto, it cannot stand against the rights of the heir-at-law : Binnies, 22d June 1678; Dict. p. 3242. Pennicuik, 18th January 1687; Dict. p. 3243; Willock, 14th December 1769; Dict. p. 5539. Brash, 23d November 1827; 6 S. and D., 113. Bellenden Ker, 24th February 1829; 9 S. and D., 454. Fordyce, 5th July 1827; 5 S. and D., 897. 2. But supposing that the deeds of 1815 were in existence, they have been recalled and annulled by the revocation contained in the deathbed deed. It is settled law, that a deed executed on deathbed, though it be reduced on that ground at the instance of the heir-at-law, is nevertheless valid and effectual, in so far as it revokes previous settlements, where that revocation is unconditional: Coutts v. Crawford, 12th June 1795, Fac. Col. House of Lords, 12th March 1806. The revocation here is of the deeds, in so far as they interfere with the deathbed settlement, and to that extent, whatever it may be, is absolute. It may operate only to a limited extent, but to that extent it operates absolutely. There is no condition attached to it that it shall only take effect if the deathbed deed be effectual; and a condition of this sort, to have effect, must be distinctly expressed, and cannot be inferred by implication. Nor is the extent to which it will operate immaterial, as the deathbed deed interferes essentially with the previous deeds. The deeds are substantially to different parties, both with regard to the nomination of disponees, and to the beneficial interest accruing under them. But even where the deeds were of similar import, that circumstance has not been held sufficient to take away the effect of the clause of revocation in the posterior deed: Cuninghame, 10th June 1748. Bartley, 2d February 1815, F. C. Moir, 2d March 1820, F. C. Anderson, 17th May 1833; 11 S. and D., 612.

The appellants pleaded-1. In this, as in all cases of settlements, the intention of parties is the paramount principle of decision; and looking to that, it is evident that the deeds of 1815 must be taken together as forming a complete and effectual settlement of Mr Clyne's property, containing provisions which cannot be presumed to belong to a conditional conveyance. If Mr Clyne had considered them to contain nothing more than this, and so to have lapsed by his parents' predecease, he would never have thought it necessary to revoke or alter them. Every presumption is against the existence of the condition, as to the predecease of the parents, maintained by the respondent. Where the testator's intention appears clearly to have been to execute a general settlement, effect must not be given to any supposed condition, deduced only from some isolated words in the deed; especially when to sustain the condition, would infer the intestacy of the testator, which must have followed if the deeds of 1815 were held to have lapsed: Stewart v. Gordon, 14th December 1831, S. and D. Then the disposition to Mr Clyne's parents, whom failing, to trustees to be named,

was in itself a good conveyance: Ker v. Vaughan ; 2 S. and D., 369. It no doubt depended for its effect on the future nomination of the trustees; but the feudal form was complete without it; and as Mr Clyne reserved power to nominate trustees, even on deathbed, the nomination by the deathbed deed was effectual. For nothing can be struck at by the law of deathbed but what is strictly a conveyance of heritage, to the prejudice of the heir-at-law; so that an effectual nomination of trustees may be made on deathbed, on the same principle that the purposes of a trust, validly constituted by disposition, may be declared by testament, or any other deed not requiring dispositive words, if a reservation to that effect is inserted in the conveyance: Willock, Fordyce, Bellenden Ker, ut supra. But supposing that the deathbed nomination were not sustained, that contained in the deed of Mr Clyne's parents, which must be read as part of his own deed, is equivalent to a nomination by himself; and in either event, there subsisted at the date of the deathbed deed an effectual disposition of Mr Clyne's property, by which the pursuer was excluded. 2. The clause of revocation in the deathbed deed was inserted by virtue of a reserved power in his previous deed of 1815, to revoke even on deathbed, and was operative only in so far as the deeds of 1815 might interfere with that of 1833. This places the present case in a different situation from those cases where a clause of revocation in a deathbed deed was given effect to, though the deed itself was set aside. In the case of Coutts v. Crawford, ut supra, which first introduced this doctrine, the clause bore, that all former settlements were revoked generally, and declared null and void; and the former settlements were in favour of a party in all respects different from those favoured by the deed in lecto. Now, the deathbed deed of Mr Clyne is very little different in its objects, from the disposition granted by his parents, except as to the trustees therein named, and some legacies contained in the former deed; and the alteration, such as it is, renders the respondent's condition more favourable. In this way, one element is awanting to the principle contended for by the respondent; for there is no change of will on the part of the testator, to the effect of annihilating the former deeds. Again, the revocation, in every instance where the principle of Coutts's case has been applied, was complete and universal: Bartley, Moir, ut supra. Rowan v. Alexander, 22d November 1775; Fac. Coll. Duke of Roxburghe v. Wauchope; 1 S. and D., 487, 2 S. and D., 141; 1 W. and S., 41. But the present deed does not contain a complete and unlimited revocation of the former settlements; and a revocation, not universal, but partial in its terms, cannot be sustained, when the deed itself is reduced. The revocation can be given effect to only where it appears to have been the intention of the testator that, whatever should become of the deathbed deed, the former deeds should be no longer in force. But as, by express terms in the clause of revocation, its effect may be made to depend on the subsistence of the deathbed deed, so as to stand or fall with it, the same result may follow by implication, wherever it appears, as in the present case, that the clause is connected with the deed itself, and is of a conditional and limited nature. The present clause of revocation contemplates only one contingency, viz., the subsistence

and operation of the deathbed deed; for if it be reduced, the deeds do not interfere at all; to which extent only the previous deeds are revoked. When the possibility of collision between them is taken away by the reduction of the later deed, the clause of revocation must necessarily fall; and its effect is precisely the same as if the former deeds had been revoked provisionally, in the event of the deathbed deed being sustained. The appellants farther pleaded-That the respondent had no interest to challenge the deathbed deed, in respect that the provision in his favour contained in it, was more valuable than the amount of the heritage which would have fallen to him as heir-at-law. -The accuracy of the statement on which this plea was founded was denied by the respondent.

"24th December 1836.-The Lord Ordinary having considered the cases for the parties, and whole process, Repels the dilatory defences, and decerns, but without prejudice as to any question which may arise respecting the amount of the heritage claimed by the pursuer, which is hereby reserved to be discussed with the defences on the merits, or otherwise, hereafter: Finds the defenders liable in expenses; appoints an account thereof to be given in; and when lodged, remits the same to the auditor, to tax and to report.

"Note. It is stated by the defenders that there is no heritage except a house in Albany Street, Edinburgh, and that this is not so valuable as the annuity of £10, which the deathbed deed gives the pursuer, though he be about fifty years old. The Lord Ordinary wished this matter of fact to be fixed before deciding anything else, but both parties were averse to this; and therefore, as its determination is not necessary for the disposal of the dilatory defences, it, or any such matter, has been reserved."

The appellants having reclaimed to the Second Division of the Court, the Lord Ordinary's interlocutor was adhered to, with additional expenses.

Clyne's trustees then appealed. The pleas maintained on both sides were the same as in the Court of Session; but the respondent farther pleaded, that the appeal was incompetent, and ought to be dismissed, in respect that the judgments appealed from only disposed of the preliminary defences in the cause, and so were interlocutory merely; and no leave to appeal was asked or obtained from the Court below, in terms of Statute 48 Geo. III. c. 151, § 15, and 6 Geo. IV. c. 120, § 5.

In answer to this objection the appellants produced a certificate from their counsel, certifying "that there is, in our opinion, reasonable cause for appeal from the interlocutors within complained of, and that these interlocutors substantially exhaust the cause."

After the judgment in the Court of Session, the respondent presented a petition for interim execution, to the effect of enabling him to recover the expenses which had been awarded. After answers, the prayer of the petition was granted, a bond being lodged, signed by the respondent as principal, and his agent, Mr Laurence Mudie Macara, W.S., as cautioner, for repetition in case of reversal. Against this decree Clyne's trustees entered a second appeal, in which they maintained– 1. The petition and application for interim execution was irregularly made, and its prayer could not have been competently granted under the Statute, as no printed copy of the appeal was laid before the Judges of the Court of Session, but only a written copy put into process: Beveridge's Forms of Process, Vol. II. p. 640. Jurid. Styles, 2d ed., Vol. III. t. 5, § 4, pp. 881, 2. 2. The application was farther incompetent,

inasmuch as it was presented without payment of the necessary dues of Court. 3. On the merits of the petition for interim execution, the appellants submit that the discretionary power vested by the Statute in the Court of Session, had been applied in the present instance to a case never contemplated by the Legislature.

On the appeal thus presented, the appellants obtained the usual warrant for service and answers from the House of Lords, which was intimated to the respondent. In the meantime, a charge was given for the expenses, of which a suspension was brought in the Court of Session by Clyne's trustees, on the grounds, 1st, That it was illegal to enforce a decree of the Court, after service of an order of the House of Lords on an appeal against such decree; and reference was made to the case of Lindsay v. Lindsay, 11th July 1811, Fac. Coll.; and, 2dly, That no proper caution had been found in case of reversal, the bond being by the agent, who really was the party to receive the expenses, the respondent being on the poors' roll. The appellants also served the principal clerk Mr Thomson, his assistant, and the extractor, with a copy of the order for service of the appeal.

The respondent answered-1st, By reference to the 18th section of the Statute (48th Geo. III. c. 151), on which the warrant was applied for and granted, which declares, "that it shall not be competent, by appeal to the House of Lords, touching the regulations so made as to such interim possession, execution, and payment of expenses or costs, to stop the execution of such regulations as shall have been so made as aforesaid respecting the same; provided, that when the appeal touching the judgment or decree appealed from shall be heard, it shall be competent for the House of Lords to make such order, and give such judgment respecting all matters whatsoever which shall have been done, or have taken place, in pursuance of, or in consequence of such regulations so made as to interim possession, execution, and payment of expenses or costs, as the justice of the case shall appear to the said House of Lords to require." 2dly, That the clerks had satisfied themselves as to the caution, and that, besides the cautioner, the appellants had the security of the clerks.

Lord Fullerton refused the bill, with expenses, and subjoined the following note:

"The words of the Statute are conclusive against the suspenders (appellants). The judgment in the case of Lady Haddington, November 20, 1811, is exactly in point. The Court there were not called upon to find any thing as to the absolute incompetency of the appeal, though that opinion is ascribed to them in the report. But the judgment allowing the extract to be issued, clearly and necessarily implied their opinion on the point, which certainly was within their cognizance, and warranted by the terms of the Statute, viz., that it was not competent, by appeal, to stay the execution of their former order. Considering the terms of the judgment and order for interim execution here, and the admission of the bond of caution by the proper officer, the other reasons of suspension are obviously inadmissible."

A second bill was refused by Lord Meadowbank, without answers.

The appellants reclaimed. On advising, their Lordships unanimously adhered, with additional expenses.

Clyne's trustees then lodged a third appeal against the interlocutors of the Court of Session in the two suspensions. Their reasons of appeal were: 1. Be

cause an order of service of an appeal by the House of Lords, and service following thereon, necessarily stops all procedure on the decree of the Inferior Court until the appeal be decided. 2. Because it is competent to appeal to the House of Lords against a judgment awarding interim execution pending appeal. 3. Because no sufficient caution has been found by the respondent for repetition of the sums which are the subject of the interlocutor appealed from, in the event of the reversal of the judgment. 4. Because, in the circumstances of the present case, there was no ground for awarding interim execution, and the manner in which it has been attempted to be enforced by the interlocutors and proceedings now complained of, is such as cannot be countenanced by your Lordships.

The respondent did not enter appearance in the House of Lords in the second and third appeals till they were set down for hearing, when he appeared and craved leave to give in answers, which was allowed; and answers were given in by him accordingly. On 4th March 1839:

Lord Chancellor.-My Lords, in this case of Gordon v. Clyne, your Lordships have lately beard three appeals,—the subject matter of the contest between the parties being, according to the case made by the defender, property of less value than a life income of £10 a-year, which the pursuer is entitled to under the deed in question. It is true that, on the part of the pursuer, it was stated that the property was of much larger value, but the defender, the present appellant, contends that the property is of less value than a life income to the pursuer of £10 a-year. The first appeal, which is that which raises the question, was objected to, on the first point, upon the ground of incompetency, inasmuch as it was alleged that the adjudication was upon the mere preliminary defence, and not touching the merits. My Lords, the facts, so far as it is necessary to consider that part of the case, are these, that the pursuer, seeking to reduce a deed upon the ground of deathbed, is met by an allegation that there was another deed, a valid deed, which, if the latter deed were impeachable, would be a bar to his claim, namely, a deed of 1815, which, it is alleged, would equally preclude him from claiming the heritage, so that, under those circumstances, he would have no interest in impeaching the deed challenged, upon the ground of deathbed. This was made the subject of preliminary pleas. The Lord Ordinary decided (which was afterwards affirmed by the Inner-House,) that that ought not to be treated as a preliminary defence, inasmuch as it went to the whole merits of the case,-there being no doubt that the latter deed, the deed to be challenged, was a deed executed so recently before the death of the party as to be void, provided the heir was in a situation to be at liberty to challenge it. The whole case therefore turning upon the right of the pursuer (the heir) to challenge and reduce that deathbed deed, it was obvious that that embraced the whole matter in contest between the parties, and therefore the Court were of opinion that they ought not to treat it as a preliminary objection, but that that should be considered as constituting the whole substance and merits of the case; upon which the defender put in pleas in law to the whole case, and repeated the objections which he had before made as preliminary objections. Now, my Lords, the four pleas were these: first, That "the pursuer is barred from challenging the deed libelled on, in consequence of the settlements executed by Mr Clyne and his parents in 1815. These settlements were not absolutely revoked by the deed under reduction, but only in so far as they interfered with the last deed; so that if this settlement could be reduced by the pursuer, the former settlements would revive. Second, The pursuer has no real or legitimate interest to challenge the deed libelled on; his interest is much greater under the last settlement than it would be under the former deeds," the last settlement giving him an annuity for life of £10 a year," which would necessarily regulate Mr Clyne's succession, if the settlement now under reduction were reduced." Upon that second ground