cluding assignees and sub-tenants. It was represented to the pursuer that Mr Bruce was anxious to join Mr Wingate in this tenancy; and the pursuer intimated his willingness to receive him as joint tenant. The defenders Messrs Fisher & Watt, who were the pursuer's ordinary law agents in Glasgow, were employed to prepare the minute of agreement between Bruce and Wingate, at the expense of these gentlemen; and they drafted a deed expressing that Mr Wingate was to be considered to hold the lease for the joint behoof of himself and Mr Bruce. As originally drawn, the pursuer Mr Wallace was no party to the deed; it was exclusively the deed of Bruce and Wingate.

In returning the draft revised, Messrs Bruce and Wingate proposed that the pursuer, as landlord, should sign the minute in token of his approval; and in this view they had added on the margin of the draft these words after the name of the pursuer: "By whom these presents are also signed in testimony of his approval thereof." The minute, with this addition signed at the top by Messrs Bruce and Wingate, in token, it is said, of their approval of its terms, was left with the defender Mr Fisher, who, before extending it, added to the words so introduced the words "without prejudice to his legal rights." Mr Fisher apparently did not think it necessary to communicate the addition of these words either to the pursuer or to Messrs Bruce and Wingate; and extended the minute with the words added to those suggested by Bruce and Wingate. The minute as thus extended was signed by Mr Wingate and by the pursuer, and was taken away by Mr Wingate for the purpose of his obtaining the signature of Mr Bruce.

This took place in the month of May 1862; and on the 7th November of the same year, the deed not having re-appeared, the defenders wrote to Mr Wingate, saying, "The agreement between yourself and Mr Bruce being now signed, as we suppose, we request you will send it to us immediately, that we may have the testing clause filled in, and the deed completed." A renewed request to the same effect was made to Mr Wingate in a letter dated 1st December 1862. The deed was not sent back, and matters so remained when, in May or June 1864, Mr Wingate absconded, indebted to the pursuer in a considerable sum of rent.

It now became the interest of the pursuer to hold Mr Bruce, if possible, responsible for these rents; and the action already alluded to was raised by him against Mr Bruce. It was decided against the pursuer by an interlocutor of Lord Jerviswoode, affirmed by the Court, on the ground-"that the pursuer has failed to prove that the defender approved of the draft-minute of agreement referred to on record, as the same was ultimately framed and extended, or that the defenders ever subscribed or executed the same."

It is now contended that the defenders undertook a professional responsibility to the pursuer to get this minute signed and returned by Mr Bruce; and that it was through their professional negligence that he was prevented from succeeding in his action against Mr Bruce, in consequence of the want of a completed minute.

I consider this plea wholly untenable. The minute, it must be remembered, was substantially the deed of Bruce and Wingate. The pursuer Mr Wallace had nothing further to do with it than to give his approval as landlord to the assignation of the lease by Wingate in favour of himself and Bruce jointly. The deed was not one desired or

sought by the pursuer; or in which he had any material interest, or, indeed, any interest at all, until Wingate's failure in 1864 made it expedient to endeavour to extort the rents out of Bruce. It was not a deed to be returned to the pursuer, or kept as the pursuer's evident by himself or his agents. It was the deed of Bruce and Wingate, to be gone on with to completion, or not, as these gentlemen might think proper. If they did not proceed with the deed, and dropped the idea of a joint-tenancy, I see no ground whatever on which the pursuer, Mr Wallace, could have compelled the execution of the minute; and more especially no ground on which he could lay the burden of enforcing this execution on the defenders Fisher & Watt. It appears to me altogether opposed to the true relation of the parties, to suppose that Fisher & Watt undertook a professional responsibility to the pursuer Mr Wallace to get the deed signed and returned. It was for Bruce and Wingate to complete the deed if they thought proper. If they did not choose to do so, the pursuer could not lay on the defenders the consequences of the refusal. It might be very proper for the defenders, who had prepared the deed, and naturally fell to fill in the testing clause after it was executed, to ask it to be returned to them for this purpose. But when no response was made to their request, I am wholly at a loss to perceive any ground on which they can be held to have been bound to the pursuer Mr Wallace to get the deed completed and made effectual.

What the pursuer contends ought to have been done by the defenders was, to renew on Mr Bruce an urgent demand for the return of the completed deed. But suppose that they had done so, it does not in the least follow that Mr Bruce would have complied with the demand. In the circumstances, I think the strong probability is that Mr Bruce would have first delayed, and afterwards refused, its execution; as, in point of fact, he did ultimately refuse. Now, in order to make out any good claim against the defenders it would be necessary for the pursuer to show, not only that the steps proposed should have been taken, but that they would have been successful, and would have issued in the deed being executed. It is impossible for the pursuer to show this. In every point of view, therefore, I consider this ground of claim against the defenders to be without foundation. The defenders, as agents, undertook the preparation of the minute in question, in terms of their instructions. They were bound also duly to complete it by the insertion of the testing clause, if the deed was brought back to them for that purpose. But to hold them responsible to any one that the deed should be completed and effectual, and especially to hold them so bound to the pursuer, appears to me a very unwarrantable and a very extravagant conception.

But the pursuer further pleads, that the defenders committed professional negligence, or exercised a want of professional skill, by their insertion in the minute of the words "without prejudice to his legal rights," without communicating the insertion to Mr Bruce; and that to this professional culpability must be ascribed the loss of the action against Mr Bruce, which was laid in part on the signed draft as followed by rei interventus.

Here again the observation naturally occurs, that as the signed draft, even if unobjectionable would have been ineffectual without proof of re interventus, it does not appear whether any effectual

case of liability would have been made out had no ground of objection lain against the draft; that is to say, it does not appear whether any sufficient rei interventus could have been proved to set up the draft as an obligatory instrument. But waiving this consideration, it is plain that the pursuer must establish that what occurred constituted professional misconduct on the part of the defenders towards him, the pursuer. The question now is not with Mr Bruce. It is with the pursuer, who alleges that in their character as his agents, the defenders did something amounting to professional culpability.

was

I conceive that nothing of this kind can be justly predicated of the defenders. In adding to the approval by the pursuer of Mr Bruce's adoption as tenant the words "without prejudice to his legal rights," the defenders were eminently acting in the interest of the pursuer, and doing what the pursuer himself wished done, namely, to take care that this adoption of a new tenant did not affect any accrued rights then existing in his own person. That the defenders did not communicate this addition to Mr Bruce by any formal letter, before sending him the extended deed (which shewed it on its face), does not, I think, constitute any professional negligence or want of skill on the part of the defenders, far less that gross culpability which would be necessary to sustain a claim of legal reparation. The defenders thought that the addition was so much a matter of course, and was so entirely inoperative to create a variance in the relations of the parties, that such a communication was unnecessary. To "without prejudice to his legal rights say what all must have understood, and what the nature of the case implied, without any formal expression. It did not in the slightest degree alter the position of the parties, or vary the obligations as they stood previously. The pursuer Mr Wallace expressly depones to this having been his own opinion. The addition did harm to nobody; perhaps good to none. It only put a clear expression on what was otherwise understood. So the defenders argue, and maintain that no professional culpability can be inferred from the proceeding. I agree with them to this effect, that no such culpability took place as can form the foundation of a legal claim. In a very strict point of view it may be said that an agent ought not to add a single word—not even such as may be necessary to complete the sense-to an approved draft. But something a great deal more than this would be requisite to infer the gross negligence, or want of ordinary professional skill, which must lie at the foundation of a claim of liability. I think to say that such occurred in a question with the pursuer, when the defenders, acting in the pursuer's own interest, added “without prejudice to his legal interests" to his approval of the lease, is, again, a very unwarranted and a somewhat extravagant conception.

It is true that in the action afterwards raised against Bruce it was found by the interlocutor of Lord Jerviswoode, affirmed by the Court, that the circumstance of this alteration in the draft minute, being unauthorised by Mr Bruce, was sufficient to exclude all liability on his part arising out of the signed minute: and this judgment we must now hold a well-founded judgment. But the judgment did not in the least settle the question now before the Court, whether this result is justly attributable to professional culpa

bility on the part of the defenders. It might well be that the Court held Mr Bruce liberated by any addition, however slight that was, unauthorised by him, without entering on the question what was the nature of the alteration, or its effect on his interests: but it does not follow that in a question between the pursuer and defenders the insertion of the addition shall be held a piece of professional misconduct. This is a widely different question, depending for its solution on wholly different considerations. There are many cases in which it has been held that an act was illegal, so as to justify suspension of diligence, and the like; and yet that the agent under whose professional guidance the act was performed was not liable for the consequences. To bring home responsibility to

an agent, it is indispensable to show that the act involved gross professional negligence, or want of ordinary professional skill: and I do not conceive such to be established in the present case.

It was thrown out in the course of the discussion that the defenders were at all events bound to make good to the pursuer the expenses of the former action, (to which the pursuer ultimately limited his claim), in respect that these expenses were occasioned by the defenders concealing from the pursuer the fact that the addition was made to the draft after it had been revised by Bruce, and so allowing him to carry on his suit on a false medium, which it is said he would not have done had the true state of things been disclosed to him. I am of opinion that this subordinate ground of liability also fails the pursuer. I do not think it clear from the evidence that the defenders did in point of fact conceal from the pursuer the circumstance of the addition being made after Bruce revised the draft. I am thoroughly satisfied that there is no ground for imputing to the defenders any false statement on this head; and that so soon as the matter came up they made no attempt to conceal how it really stood. But assuming the pursuer's statement as to the non-communication of the fact at the outset of the case, the question always remains, whether in what is alleged there was professional culpability involved. Supposing the circumstance not communicated, the immediate defence is that the fact was not mentioned, and did not even dwell in the mind of the defenders, simply because they thought that in the circumstances the fact was wholly immaterial. They considered the validity of the minute to be unaffected by the addition; and the minute as falling to be dealt with on the footing of being wholly unobjectionable. They did not anticipate, and could not be held bound to anticipate, that the Court would take so strict and as the pursuer himself characterised it at the time so narrow a view as what ruled Lord Jerviswoode's interlocutor. The point was one on which different opinions might be reasonably entertained; and all that can be said is, that the defenders entertained, as did the pursuer himself, a different legal opinion from that ultimately arrived at by the Court. Such is the argument of the defenders, and I confess it is satisfactory to my mind. I cannot see sufficient grounds for holding the alleged non-communication to involve professional culpability; and, without such culpability, there is no case established against the defenders. I would only say, in conclusion, that I think the Court ought rigidly to enforce the rules of professional responsibility wherever it is established that there has been gross negligence, or a want of ordi

nary professional skill.

On the other hand, to make an agent liable for want of success, where no such culpability can be fairly charged on him, and he was acting not only in good faith, but with zeal for the interest of his client, would be against all equity, and against all sound policy.

LORD PRESIDENT-The damage concluded under this summons is only the expense of the action against Mr Bruce, in which the pursuer failed, but as regards the two first grounds of action they would go much farther and make the defenders liable for all the consequences of not getting the deed duly executed and completed. The first ground is, that the defenders are liable because they did not get a deed completed which would have bound Bruce as a joint-tenant; if this were so, the defenders ought logically to be liable for all the rents, lordship, &c., which the pursuer failed to recover from Mr Bruce. But it appears very evident that the defenders did not undertake to get the deed executed, and the pursuer himself did not wish to have it executed.

As regards the second ground of action, viz.— the altering of the draft after revisal-in order to establish this as a good ground the pursuer must make out a great many things. He must make out clearly that the defenders never communicated the alteration, and the circumstances under which it was made, to himself or to the other parties to the deed. He must, moreover, make out that Bruce, possessing along with Wingate, would in consequence of that draft minute, with possession and rei interventus following on it, have been liable as a joint-tenant. I cannot say that I would hold that he would be so liable; very difficult questions would arise as to whether one who was merely a beneficiary, as Bruce was under that minute, would be liable as a joint-tenant.

Then there is another very important objection; every liability of this kind must arise from a failure to discharge a duty undertaken. The professional men here did not undertake to adjust a minute which, followed by possession and rei interventus would operate as a contract. Such a ground of action would lead to claims much more extensive than those in this summons. If the tenant was lost to the pursuer by the neglect of the defenders, they would assuredly be liable to the pursuer for all he lost through the failure of his

tenant.

The last ground of action, if well founded, would justify this summons and go no farther. It is this, the pursuer was allowed by his advisers to raise an action, which was unsuccessful, without their telling him that they had caused to be altered after revisal, and had not seen duly executed and completed, a deed on which his case rested. The pursuer says that if he had been told of this he would not have raised his action, but we have no evidence of that. Now, when the judgment in the former action was pronounced we thought the ground very narrow and very difficult, and yet the pursuer says he would have foreseen that the non-execution and alteration of the deed would be fatal to his action. I think it not the least surprising that the defenders did not specially call the pursuer's attention to the alteration after revisal and non-execution of the deed, because

they thought it of no consequence. Had they known of the importance of the alteration and noncompletion, and not communicated it to their client,

that might have been ground for professional liability, but it was not so here.

On the whole matter, I am of opinion that the interlocutor reclaimed against should be recalled and the defenders assoilzied from the conclusions of the summons.

LORD ARDMILLAN gave no opinion, having been absent in the Registration Court during the debate.

The Lord Ordinary's interlocutor recalled, and the defenders assoilzied from the conclusions of the action, with expenses.

Agents for Pursuer-Hill, Reid, & Drummond W.S.

Agent for Defenders-P. S. Beveridge, S.S.C.

Saturday, November 5.

HOOD V. HOOD.

Process-Sheriff-court-Competency-Amendment of Summons-Aliment - Contract of Separation, Held that arrears of aliment were due to a wife on a formal, though voluntary, contract of separation, up to the date of the action, when the husband judicially revoked the contract; and that, the circumstances being suspicious, the husband must satisfy the Court of his bona-fides in revoking the contract and offering to receive back his wife, before they will finally dismiss the claim for future interim aliment. Held, farther, that an action for interim aliment only is competent in the Sheriff-court. Record allowed to be amended by the insertion of the word "interim," and of the grounds of separation and claim for aliment.

This was an appeal from the Sheriff-court of Forfarshire, at the instance of Mrs Margaret Philips or Hood, against the Sheriff's interlocutors pronounced in an action for aliment brought by her against her husband, the respondent, William Hood, a guard on the Caledonian Railway at Aberdeen, afterwards a carter in Brechin, and now, since the date of the summons, residing in Brazil, or elsewhere abroad,

It appeared from the condescendence lodged in the Sheriff-court that in April 1867 the appellant had been obliged to separate from her husband in consequence of his alleged ill-treatment of her, and of his alleged drunken habits. A minute or memorandum of agreement of separation between them was duly executed. This agreement set forth as the cause of separation, simply, "dissimilarity of temper and other circumstances," and in it the respondent agreed to permit his wife and children to occupy certain premises, and undertook to pay her weekly in name of aliment and support for herself and children, at the rate of nine shillings a week. The parties accordingly did live apart from the date of this minute of agreement, but Mrs Hood did not receive her aliment in terms of the agreement. Accordingly, on Nov. 4th 1868, she raised a summons in the Sheriff-court of Forfar, concluding for aliment under the deed of separation, up to the date of the action, under deduction of certain sums paid. In Nov. 1869 she was obliged to apply for a meditatione fuga warrant against her husband, which was refused, and at the same time raised another action for aliment from the 4th Nov. 1868, in the same Sheriff-court.

It was in this action that the present appeal was taken.

The respondent's statements went to shew that at the date of the separation, he was a guard on the Caledonian Railway, residing at Aberdeen, and that at first he had paid the stipulated aliment, at least partially. That he had in March 1868 been discharged from the service of the railway company, and then became unable to continue the said payments; that he had gone to his native place, Brechin, where he had ultimately obtained employment at a very much reduced rate of wage, and had been unable to resume his payments to his wife, especially as he had been burdened in addition with the payment of debts incurred by her. That in consequence of her proceedings against him he had lost his employment at Brechin, and was now at Liverpool, endeavouring to obtain an appointment on the railway in Brazil, which he hoped shortly to get. While unable to pay his wife the stipulated aliment, he had several times, judicially and otherwise, recalled the agreement of separation, and offered to take her and their children to his house. This offer he again repeated in this action, and stated his readiness to take them with him to Brazil, in the event of his obtaining the situation which he expected. The appellant replied that these offers, and especially this last one, were quite elusory, and were made for the purpose of evading his legal obligations. In point of fact, since the raising of this action, the respondent had left the country without making any provision for his wife and children, either for their 'support here or for their joining him abroad. And farther, that though he might have, through his ill-conduct, lost certain situations, he had lately succeeded to a considerable sum of money, amounting to more than two hundred pounds, and therefore was quite able to make the requisite provisions for herself and children.

Such is a narrative of the circumstances in this case, but an objection was taken in the Sheriffcourt to the relevancy and competency of the summons. It concluded for the sum of nine shillings weekly," in name of aliment and support" for herself and two children-" from and since the 4th day of Nov. 1868, and that in one sum, so far as now due and payable up to the date of the present summons, and thereafter weekly, so long as the said William Hood shall, as he has done during the period libelled, live apart and separate from the pursuer and her said children, or shall fail to find security for the future aliment," &c.

Against this summons the respondent took the following preliminary pleas:-"(1) There is no jurisdiction in this (the Sheriff) Court to entertain an action for permanent aliment at the instance of a wife against her husband. (2) The summons is irrelevant, no ground which the law recognises as sufficient to justify the pursuer in separating from, and remaining separate from her husband being libelled. (8) Generally, the action is incompetent, and the summons irrelevant and defective, and ought to be dismissed.

The Sheriff-Substitute (ROBERTSON) found “that the summons did not set forth the grounds of action, and that it is, as laid, vague and irrelevant, and, in respect the action is one between husband and wife, and in respect cruelty is averred in the pursuer's condescendence, which, if proved, will justify the Court awarding interim aliment, allows the pursuer to amend her summons if so advised," &c. In his note the Sheriff-Substitute adverted to the

fact that no litigant in the Sheriff-court has any right to trust to a condescendence for disclosing his grounds of action, as a condescendence is entirely in the discretion of the Court.

On appeal the Sheriff (MAITLAND HERIOT) sustained the appeal, adhered to the interlocutor appealed against so far as it found the summons to be vague and irrelevant, but recalled the remainder, and dismissed the action, on the ground, as stated in his note, that this summons was so very irrelevant and confused that it seemed hopeless to cure matters by any amendment."

Against this interlocutor the pursuer appealed to the First Division of the Court of Session. When the case came up for hearing, the Court, before answer, allowed the appellant to lodge a minute of the amendments which she proposed to make on the summons. This was done, and the summons as amended concluded for the same sum "in name of interim aliment," instead of merely aliment, and that "so long as the said William Hood shall, as he has done during the period libelled, fail to provide for the future aliment and support of the pursuer and said children, and so long as such aliment may be required by them, or until a permanent arrangement of the rights and interests of the parties shall be made by a competent court, which aliment, primo, is due under and in virtue of a certain minute or contract of separation between the defender and the pursuer, dated 5th April 1867; secundo, is, separatim, due in consequence of the defender having, through cruelty to the pursuer, dangerous to her health and life, compelled her and the said children to live separate from him since a date anterior to said 4th day of November 1868; and, tertio, is in any event due in consequence of the defender having, since a date anterior to said 4th day of November 1868, wrongfully failed to provide for the aliment and support of the pursuer and the children foresaid, &c."

These amendments the Court allowed.

BLACK, for the appellant, pleaded that the action as originally laid was competent, and referred to Ersk. 1, 5, 30, for the principle, and to Soutar's Styles as evidence, of the practice. He admitted, however, that the existing practice in some Sheriffcourts was contrary, and accordingly, in deference to this, the action had been confined to interim aliment. He submitted that under the contract of separation, voluntary though it was, he was entitled to arrears of aliment, and to interim aliment until there should be a bona fide proposal of the husband to provide for his wife at bed and board with himself. He relied upon the following cases —Reid v. Black, Hume, p. 5; M'Leod v. Telfer, Hume, p. 18; Hamilton v. Wylie, 8th July 1824, F. C., p. 583; Grahame v. Grahame, 4 S. 670; Braick, 8 S. 284; Kelly v. Kelly, 9 S. 871; Williamson, 22 D. 599; Cowper, 23 D. 68; Paterson v. Paterson, 24 D. 215; Coutts, 4 Macph. 802.

FRASER, for the respondent, argued, upon the case of Bell v. Bell, 22d February 1812, F.C., that the appellant could not sue upon the contract at all, there having been no judicial separation. It was a purely voluntary contract, which might be ended at the will of either party, and its only effect is to give the husband the plea of personal bar to the wife's claiming more than the aliment agreed upon. He admitted that, were the respondent unwillingly to take back his wife, the Court might give decree for aliment; but he contended, on the principle of Hamilton v. Wylie, 8th July 1824, F.C., he, offering to receive back his wife, could not be held so liable. The cases of Donald v. Donald,

22 D. 1118, and Malcolm v. Malcolm, Hume p. 2, were also referred to.

At advising

LORD PRESIDENT-The contract of separation here, a tested instrument, is a good ground of action for sums due under it, and will be so in all time coming for sums accruing, till revoked. The husband may revoke it judicially, and he has done so in form of words. So, all we can do is to give decree for so much in name of aliment down to the date of the action. Peculiarities here, however, lead one to doubt the bona fides of that revocation. The husband offers to take home his wife and children, but this, if not in good faith, is no answer at all. The question, therefore, remains, how are we to be satisfied as to the bona fides of this offer.

LORD DEAS-I have no doubt at all that under such a contract, while unrecalled, the aliment due may be sued for in any competent Court in the kingdom. If the husband says he revokes the But if contract, that may be a prima facie answer. the wife replies that it is a mere pretence, and condescends upon facts and circumstances to show that the revocation is not in good faith, e.g., if she were to say that he is living in a house of ill-fame, and getting drunk every day, that might be let go to proof in that action, and if proved to the satisfaction of the Court, aliment must continue so long as matters are in that situation. I hardly think your Lordship meant to say it must stop, even in the meantime, from the date of the action. If there are good grounds for suspecting mala fides on the part of the husband, interim aliment should go on till that be ascertained, in place of leaving the wife to starve. It appears to me that it ought to be continued; while of the competency of the action I have no doubt whatsoever.

LORD ARDMILLAN-I have no doubt that payment of the contract-aliment may be enforced up to the date of the action. The counsel for the defender says truly that the law frowns on the separation of husband and wife, but it is upon the act of separation, and not upon the contract for aliment during separation, that it frowns. If they are to separate, the aliment is not the evil part of the separation. Yet here the defender maintaining the fact of separation says that the law frowns upon the contract. That is neither law nor sense, and the case of Malcolm, quoted, is sufficient authority against it, if authority be required. I have The more difficulty on the other part of the case. bona fides of the husband is a question of evidence. Viewed as a question of first impression, it might be treated unfavourably for the husband; but we are not entitled to take it as a question of first impression, and I am satisfied that we should continue the aliment and enquire into the bona fides of the husband.

VOL. VIII.

the contract of separation, and I have no doubt that the wife can sue upon it until it is brought to an end. Until revocation by the husband, it is a good contract to found an action at the instance of the wife. In this case, then, we have both circumstances combined-firstly, the husband keeping himself separate from the wife and refusing her aliment; and secondly, the contract of separation binding him to aliment his wife. There may be a good defence on the merits; as, for instance, that he is willing to receive her; that he has revoked the contract of separation, and so forth; but these being defences on the merits, are to be enquired into hereafter, not now.

The Court accordingly sustained the appeal, and recalled the Sheriff's interlocutor, and gave decree for the aliment sued for, up to the date of the action; and, before proceeding farther, appointed the defender to satisfy the Court as to the measures he intended taking for the support of his wife, and for enabling her to join him abroad.

Agent for Pursuer-Andrew Fleming, S.S.C.
Agents for Defender-Henry & Shiress, S.S.C.

Saturday, November 5.

MENZIES V. MACDONALD. Process-Interdict-Expenses. Interdict will only carry expenses when the trespass alleged is proved or admitted. Circumstances in which interdict was craved with expenses, and the complainer contended that interdict should be granted, and expenses given without a proof. The respondent was ready to let interdict pass without expenses. Held that, the parties being at variance on the subject of trespass, the complainer could only get his expenses if he succeeded in proving trespass. If he failed in so doing, the circumstances might be such as to entitle him to interdict, but he could not then get his expenses. If he insisted in his expenses in any case, proof must be allowed.

This was a suspension and interdict brought by Sir Robert Menzies of Menzies, Bart., against Mrs Macdonald, innkeeper, of the Macdonald Arms, Kinloch Rannoch, seeking to interdict and prohibit the respondent, "her servants, friends, guests, lodgers, family, and dependants, or others in her name and employment, or acting under her authority or permission, or as in her right, from entering, landing, or in any way trespassing upon any part of the lands adjacent to, and the islands situated in the lake or loch, called Loch Rannoch, in the shire of Perth, forming part of the estate of Rannoch, the property of the suspender, and also from drawing nets or boats upon, or landing oars or nets or fishing implements, or tackle, or any other articles upon, or in any way making use of the said lands or islands;" and praying their Lordships "to find the respondent liable in expenses."

The note was passed without caution, and interim interdict granted. The record was closed upon the reasons of suspension and answers, and the parties were heard in the procedure roll, when the Lord Ordinary (MACKENZIE) pronounced an interlocutor of this date, October 28, 1870, allowing the parties a proof of their averment on record, in respect that, although the complainer was willing to renounce probation, the respondent refused to renounce pro

NO. VI.