“Et similiter quod minime licebit dict. Domino Pedro Fraser, nec ejus hæredibus talliæ et provisionis supra script. in dict. tallia et substitutione content. modo et in ordine ut inibi describitur, nec eorum prædict. dict., talliam mutare, infringere, seu innovare, neque dict, terras, baronias, aliaq. prædict. disponere, seu impignorare, vendere, dilapidare, neque debita desuper contrahere summam viginti millium marcarum monetæ prædict. exceden.” &c. On the death of Sir Alexander, his eldest son Peter succeeded to the estate, which he held till 1730, when he died without issue. Charles Fraser, the other son, had also died without issue. In the mean while his daughter Carey had married the Earl of Peterborough and Monmouth; and she having died, leaving a grandson, Charles Lord Mordaunt, (who afterwards became Earl of Peterborough and Monmouth,) he made up titles to the estate by serving heir in special of tailzie and provision to Sir Peter. Earl Charles was twice married. By his first marriage he had two daughters, Lady Frances Mordaunt or Bulkely, and Lady Mary, afterwards Baroness Mordaunt, (one of the respondents); and by his second marriage he had an only son, Charles-Henry. On the death of Earl Charles, he was succeeded by his son Charles-Henry as Earl of Peterborough, who in 1780 made up titles to the estate of Durris under the entail, in virtue of which he was infeft. After attempting to sell it to the late Francis Russel, Esq. Advocate, (but which it was found in a suspension he had no power to do,) he entered into an arrangement with that gentleman, in the form of a lease, on the 28th of August 1784, by which he let to him the whole lands and estate of Durris, comprising an entire parish, for the period of four 19 years, or 76 years, and for the life of the tenant to be in possession at the end of that time, together with the fishings, woods, mines and minerals, and game,—giving him right to cut down the woods on condition of planting one acre of forest trees for every three acres of firwood cut down, binding himself to present to the parish church any qualified person recommended by Mr. Russel, and conveying to him the whole furniture in the mansion-house, with the mansion-house itself, and power to build a new one, subject, however, to the right of the heirs of entail to enter to possession of the house Page: 172 ↓ on certain conditions; and he agreed that, in the event of an appeal which he had entered against the judgment in the suspension being successful, he should sell the estate to him at a certain price. * On the other hand, Mr. Russel bound himself to pay£1000 per annum of rent for the first two 19 years,—£1100 for each of the third l9 years,—£1200 for each of the fourth 19 years,—and£1300 yearly for the lifetime of the tenant in possession at the expiration of the last of these periods. Prior to entering into this lease, reports had been judicially obtained from persons of skill, from which it appeared that the farm-houses were so ruinous, that they were not worth more than£100 ;—that the plantations and enclosures were greatly destroyed, and of very bad quality;—that the mansion-house was in a dilapidated condition;—and that the lands themselves were almost in a state of nature, so that the annual produce did not exceed£960 . By a separate agreement in the shape of a lease, the rent during the Earl's life was restricted to£300 per annum, in consideration of which, and of the assignation of the furniture, the arrears of rent, &c., Mr. Russel bound himself to pay£15,107 . 14s. The right to this lease and agreement was, in October 1794 and May 1795, assigned absolutely by Mr. Russel to the appellant Mr. Innes, who immediately proceeded to make large and extensive improvements on the estate, in accomplishing which he alleged he had expended, between the period of his entry and the year 1814, upwards of£80,000 . In particular, he alleged that he had erected 50 farm-steadings, 50,000 ells of stone dikes, a mansion-house and offices, and a bulwark on the river Dee to defend 200 acres of land;—that he had made 31 miles of road, planted 900 acres of wood, and trenched and ploughed 300 acres of ground out of heather, and brought them into a regular rotation of cropping. In virtue of the lease and assignation, he continued in the undisturbed possession till 1814, when the Earl of Peterborough died; and Lady Bulkely having predeceased him in 1798, he was succeeded by the respondent Mary Baroness Mordaunt, who obtained herself served heir of tailzie and provision to the Earl, and was thereupon infeft. In the mean while, and in the year 1797, an agreement had been entered into between Mr. Innes and the Marquis of Huntly, (who was entitled to succeed to the estate on the death of Lady Bulkely, of the Baroness Mordaunt, and of the Duke of Gordon,) which proceeded on the narrative, that “whereas the said Marquis is one of the heirs of entail of the estate of Durris in the county of Kincardine, and will be entitled to succeed thereto in case of the Footnote * The appeal was subsequently withdrawn. Page: 173 ↓ failure of the Earl of Peterborough, who now enjoys the same, and of the other heirs of the body of the late Earl of Peter-borough, &c.; and whereas the said John Innes is in possession of the said estate, under a lease for a long term of years granted by the said now Earl of Peterborough, subject to payment, &c.; and whereas the said Marquis made offer to the said John Innes to give up and convey his eventual interest in the said estate, and rents thereof, to the said John Innes;”— therefore, in consideration of the payment of certain sums of money, his Lordship assigned to Mr. Innes his interest in the estate, and the whole claims which he might have under the lease in the event of his succession. In 1805, his father, the Duke of Gordon, after certain communings between his agents and those of Mr. Innes, repaid to that gentleman the money which he had advanced to the Marquis, with interest thereon, in consideration of which Mr. Innes discharged the obligation granted by the Marquis, and delivered up the deeds whereby it was constituted, in order to be cancelled. Immediately on her succession to the estate, the Baroness of Mordaunt (who resided in England) raised an action of reduction of the lease granted to Mr. Russel, and assigned to Mr. Innes, and of removing, on the ground,—1.“That the said contract or lease, and relative articles of agreement, were granted and entered into by the deceased Charles Henry Earl of Peterborough and Monmouth, in contravention of the provisions in the entail after mentioned, under which he held and possessed the lands and estate of Durris, and it was therefore ultra vires, of the Earl to grant the same;”—and, 2. That “the foresaid contract or lease contains various other clauses and conditions altogether incompatible with the rights and powers of an heir of tailzie, and which formed no proper part of, and are not to be found in an ordinary tack.”