Sir David Baird, of Newbyth, Bart. v. Margaret Baird and Others, substitute heirs of tailzie of the lands of Newbyth, and Walter Jas. L. Gilmour [1847] UKHL 6_Bell_7

UKHL
Sir David Baird, of Newbyth, Bart. v. Margaret Baird and Others, substitute heirs of tailzie of the lands of Newbyth, and Walter Jas. L. Gilmour
[1847] UKHL 6_Bell_7
Terms of exception from fettering clauses held not to destroy their effect.

Subject_ Ibid. —

A power to the heirs in an entail, to dispone in feu-farm—to excamb—or to sell or dispone such parts of the lands as they shall think fit, on condition that, previous to the sale, the heir making the sale purchase other lands of equal value to those sold; and that the titles of the lands purchased or taken in exchange, be taken to the heirs in the entail under the same conditions as in the entail; and that the purchaser of the lands in the entail should see to the performance of these conditions, is not such a power as nullifies the entail, either as being destructive of the fetters or as making the entail inconsistent with the Statute 1685.On the 4th of august, 1737, Sir John Baird executed a deed of entail of a variety of lands, including part of the barony of Whitekirk, the barony of Gilmertoun, with the exception of specified parts of it, parts of the barony of Drum, the entire barony of Broomhills, and parts of the baronies of Fordell and Ellam, in favour of himself and the heirs male of his body, and a variety of other substitutes, “declaring always that it shall be lawful to me to alter, innovate, and change the succession of the heirs male or female of my own body in the saids lands and barony of Broomhills, and teinds, parsonage and vicarage thereof, and in the saids lands of Over Monenet and Wester Winshiells, and parsonage-teinds thereof, and corn and walk milns of the same; as also, that it shall be lawful to me to alter, innovate, and change the succession of the said Alexander Baird my brother, and the heirs male and female of his

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The conditions of the entail were that the heirs should use and bear the name and arms of Newbyth; “as also, that it shall not be liesom nor lawful to any of the heirs of taillie above mentioned, to alter, innovate, or change the foresaid taillie, and order of succession above mentioned, or to do any other deed, directly or indirectly, whereby the same may be u anywise altered, innovate, or changed; nor to sell, dispone, wadsett, or impignorate, the lands, baronys, and others above mentioned, or any part or portion thereof, except the lands barony, teinds, and others, after mentioned, which they have power to sell, or otherwise dispose of, by virtue of the faculty hereafter specified, conceived in their favour;” then followed prohibitions against contracting debt or altering the order of succession, fenced as to all the prohibitions by irritant and resolutive clauses.Immediately after these clauses followed this exception, “Excepting and reserving always, furth and from the saids clauses prohibitory and irritant, full power and liberty to the saids whole heirs and members of taillie above mentioned, to sell, gift, or dispose of, the saids lands and barony of Broomhills, comprehending as aforesaid, with the teind-sheaves, and whole pertinents thereof, above mentioned; as also, the saids lands and roum of Hairhead, and that particle or portion thereof called Rislabridge, the said lands of Bothwell, with the miln thereof, the saids lands of Birkencleuch, and pertinents thereof above mentioned, with the parsonage-teinds of the saids lands of Hairhead, the saids lands of Over Monenet, and the saids of lands of Wester Winshiels, with the corn and walk milns of the same, and warrandice lands thereof above specified, with the teind-sheaves and parsonage-teinds of the said lands of

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Then followed a power to the heirs of taillie to grant liferents to wives and husbands, and to provide for younger children; and after this was a clause in these terms, “And further, reserving full power, liberty, and license to the saids heirs, and members of taillie above mentioned, to dispone in feu-farm such parts of the said taillied lands and estate as they shall think fitt, provided the feu-duties payable by these feu-rights be without diminution of the rentall, and that the feu-rights be to be holden of the granter, and the same heirs of taillie who are hereby appointed to succeed to the saids lands and estate, and that the feu-duties be payable to the granter and the saids heirs of taillie, and no others: as also, to excamb such parts of the said taillied lands and estate as they shall think expedient, with other lands of the same value and yearly free rent with those parts of the said lands and estate so excambed: as also, to sell off and dispone such parts and

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A series of titles was made up by successive heirs under this entail, until the lands came to be vested in the Appellant, who likewise made up his title under it.In the month of May, 1841, the Appellant brought an action against the substitute heirs of entail, concluding to have it

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The defence to this action was rested generally upon the terms of the entail, as excluding the power which the Appellant sought to have declared.Subsequently, the Appellant assuming that he had the power, sold a part of the lands to the Respondent Gilmour, who brought a suspension as of a threatened charge for the purchase-money, upon the ground that the Appellant could not give him a title. This suspension and the action, at the instance of the Appellant, were conjoined, a record was then prepared in which a variety of pleas were stated by the parties, which need not be repeated here, as only two points were relied upon at the hearing of the appeal, which will be stated in their proper place.On advising the record the Lord Ordinary, ( Cunningham ,) ordered the entail and the record to be printed and boxed for the Inner House, in order to the case being reported by him. At the same time he issued the following note, which will give a general idea of the shape the arguments assumed in the Court below.
“The deed of entail, which is the subject of the present action, contains certain clauses so uncommon, and so much at variance with the purpose and object of tailzies in general, that the Lord Ordinary feels it his duty to report the case, as one of novelty and importance, to the Court.
The entail was executed by Sir John Baird of Newbyth,

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According to the first branch of the tailzie, and, in particular, by the leading clause of prohibition (Deed of Entail, p. 17), the heirs of entail are expressly prohibited from selling; but, towards the conclusion of the clause, there is a reservation of a faculty to sell the lands of Broomhills, and certain parts or pertinents, apparently connected with the same, which the heirs are permitted to sell at any period they might think fit, and without any onerous cause or restraining precaution, it being only provided that the price of that portion of the lands, if sold, should be liable for any debts or donations that might be left by the entailer.It is not on that permission of the tailzie that the question at issue arises. But, by a subsequent and separate clause of the entail, a power is given to sell or excamb the whole estate , and even any lands that might be acquired in lieu thereof for ever; the only exceptions from that power being the manor-houses of Gilmerton and Newbyth, and the pleasure-grounds and lawns connected therewith. The question is, If that power be consistent with the spirit or letter of the Act 1685; and next , If it is regulated and restrained by such irritant and resolutive clauses as the Act requires to keep every right conferred on heirs within the limits indicated by the entailer.I. The first question arising for consideration, it is supposed, must be decided on general principles, without the aid of precedents in point, as it does not appear that any entail of similar structure and powers has ever fallen under review of this Court in any prior case.

The extensive powers conferred by this entail, as to selling

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As at present advised, the Lord Ordinary views this as a question at least of great doubt, well entitled to the most deliberate consideration of the Court. It is thought that the view of the Legislature, in passing the Act 1685, was to enable proprietors to secure the succession in their families of specific estates , to which they had an attachment of longer or shorter duration. In the case of Ascog, that was a leading consideration to show that the heirs, after sale, were no longer bound to reinvest the price. But an entail with a never-ending power of sale, of nearly the whole entailed subjects, is truly not an entail of land, but it is an entail of its price or value, which the statute never contemplated.When it is found, however, that a species of succession is attempted to be created, in the form of an entail, which is not consistent with the true object and purpose of the Act 1685, it will not be sustained as an effectual or subsisting entail under the statute. Thus, in a class of cases of a different description, which were long the subject of very learned discussion, when the succession of a tailzied estate falls to

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II. A second and relative inquiry falls to be discussed in the present case, founded on the position and phraseology of the power of sale in the deed of entail, which is, Whether the perpetual, and (in one sense) unrestrained powers of sale, given to the heirs under this tailzie, are so framed and guarded as to place the rights and titles, both of the sellers and the buyers of new estates purchased, effectually beyond the reach of the onerous creditors of heirs making the purchases?The power of sale, under the latter clauses of the entail, is given under the condition, (printed Entail, p. 20,) “that the heirs of tailzie so selling shall, previous to the sale , purchase other lands to the full value of so much of the lands and estate as shall happen to be sold off ;” and the right of the purchaser of the entailed estate is qualified with the following provisions, that “the purchasers of any part of the said taillied estate, whether by excambion or sale, shall be holden and obliged to see that the lands purchased by the said heir of tailzie are at least to the value of the lands to be sold by him, and that the rights and securities thereof are taken to the same heirs of taillie, and in the same terms and upon the same conditions, restrictions, faculties, and irritancies, with

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These clauses are explicit and clear in their import; but the pursuer contends that they are ineffectual and inoperative against third parties and creditors, as the contravention of them, either by heir or purchaser, is not fortified with irritant and resolutive clauses . The Lord Ordinary conceives this to be a plea attended with great difficulty; and it does not appear to have been presented to the Court, under the same specialties, in any preceding case.The answer made to it by the substitute heirs is, that the primary clause of prohibition prohibited all sales, excepting only under the faculty created by the subsequent general power to sell, conferred towards the conclusion of the deed; and, therefore, that sales not in precise conformity with the faculty, fall expressly within the irritant and resolutive clauses of the entail. But it is manifest that the faculty reserved in the prohibitory clause, here referred to, applies solely to the lands of Broomhills and pertinents, which immediately follows the irritant and resolutive clauses, (see Deed of Entail, pp. 17 and 18,) and does not apply to the more general and extensive sales permitted under the latter clauses of the deed.The general and very material question, then, which arises here, is, whether, when an entailer first prohibits sales generally, and afterwards recalls that prohibition, and grants a power of sale almost unlimited, in point of extent and occurrence, that condition of the tailzie can be effectual against onerous third parties, without being fortified by irritant and resolutive clauses.It has been argued that permissive clauses, following prohibitory, irritant, and resolutive clauses, do not, in general,

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As a question occurring now for the first time in the law of entail, the Lord Ordinary cannot venture to offer a decisive opinion upon it, without farther conference with the Court.The summons contains an alternative conclusion, founded on the two preceding pleas, to the following effect:—right of any soft arising to, the said heirs of entail, or any of them: Or, at all events, that in purchasing other lands, in lieu of the lands and others by the said entail allowed to be sold, he is entitled to make the price of the lands so purchased a real burden, in whole or in part, on the lands purchased; which burden shall be effectual to the creditors therein, notwithstanding of any entail that may be executed of the said purchased lands.”
“That it ought and should be found and declared, by decree of our said Lords, that the pursuer is entitled to sell, dispone, wadset, or impignorate, either for onerous causes or gratuitously, at his own pleasure, the whole , or any part, of the lands and estates contained in the said entail, other than, and except, the said two manor-places of Newbyth and Gil—merton, office-houses thereto belonging, and yards, parks, or other inclosures, about the said two manor-places, for the time, without interference from, or consequent claim or

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Farther, in order to try the validity of a sale , the pursuer has actually sold a portion of the estate of Newbyth to his neighbour Mr. Little Gilmour, without following out the order prescribed by the entail, by purchasing and entailing an equivalent portion of other land. If that be a valid and effectual restraint, binding on purchasers and third parties, Mr. Gilmour will not be safe in entering into the transaction; and he has presented a Note of Suspension, to try the question, against a threatened charge for the price. That suspension has been conjoined with the present declarator, and must of course follow its fate.With regard to the other pleas stated for the pursuer, under the 3rd, 4th, 5th, 6th, and 7th heads of his argument, the Lord Ordinary has only to state generally, that he has not been able to satisfy himself that any of these pleas can be sustained with due regard to late decisions of authority, in which similar pleas have been overruled upon entails, the terms of which gave at least as much room for maintaining the objections as the entail now before the Court.In particular, the objection to the irritant clause of the entail here urged (under the 6th head of the pursuer's case) does not seem tenable. The clause here sets out with the comprehensive declaration, that “if any of the heirs of tailzie above mentioned shall act and do in the of the particulars above specified, or any them, ” &c., &c., the act shall be null, &c. If an irritant clause, so expressed, were not

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The whole pleas in the case are, without farther observation, submitted to the consideration of the Court.”The Inner House directed the papers to be laid before the other Judges for their opinion, and ultimately, by interlocutors of the 10th February and 5th March, 1844, in conformity with that opinion, “sustained the defences and assoilzied the defenders from the conclusions of the action, and in the suspension suspended the letters simpliciter.”The Lord Advocate , Sir F. Kelly , and Mr. Anderson for the Appellants.I. The prohibitions in the entail against selling and burdening the lands apply solely to the manor-places of Newbyth and Gilmerton. The only entire barony conveyed by the entail is the barony of Broomhills; as to Gilmerton and the other baronies mentioned, only parts of these were conveyed. When, therefore, the exception from the fettering clauses speaks of “the lands, barony, teinds, and others,” it uses expressions applicable to the whole lands embraced by the deed. It is no doubt true that there follows a faculty specially applicable to the barony of Broomhills alone, amounting to a power to take it entirely out of the entail; but had the exception from the fettering clauses been intended to apply to this, the leading word would not have been “lands,” but “barony”, and the name of the barony would have been given, whereas the words used, “lands, barony, teinds, and others,”are comprehensive enough to embrace the whole lands, the sole entire barony as well as the parts of baronies conveyed, and for this purpose are strictly accurate in using the word “barony” in the singular; no necessity, therefore, arises from that use of the word to

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As to the use of the word “faculty,” in the singular, in the exception from the prohibitory clauses, there is nothing which should confine the application of that exception to the power to take Broomhills out of the entail, if it could be so applied, and prevent its application, at the same time, to the power to sell any of the other lands conditionally. There is nothing either inconsistent or ungrammatical in using “faculty” to imply a power of one kind as to certain lands, and of another or of several other kinds as to other lands, any more than there would be in confining the exercise of the power to one kind in regard to these other lands, instead of extending it to include several kinds; and yet the entailer has used the word in this plural signification, for he uses the word “faculty” as comprehending powers to dispone in feu-farm—to excamb—and to sell or dispone: all of these he comprehends by the words the above “ faculty ” The term “faculty,” therefore, in this exception from the fettering clauses, is, in the language of the entailer, used in an extensive generic sense, to comprehend powers of various kinds, a power to take Broomhills out of the entail altogether and unconditionally, and to dispone in feu-farm, excamb, or sell the other lands conditionally, with the exception only of the manor-places of Newbyth and Gilmerton. The exception, therefore, is broad enough to embrace both powers to sell Broomhills unconditionally and the other lands unconditionally. But if it must be confined to one and a choice must be made between the two, a comparison of the language used in both points

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“Excepting and reserving always furth and from the said clauses, prohibitions,” &c.,
as if for the first time mentioned, whereas the power to sell conditionally, as if it had been spoken of before, begins at once:—
“And reserving full power, liberty, and licence to the said heirs and members of taillie above mentioned, to dispone in feu-farm,” &c.
If this be so, then all that is included in the faculty to sell conditionally, that is, all the lands except the manor-places of Newbyth and Gilmerton, is excluded from the prohibitory clause, and the entail is as if it had no prohibitory clause except in regard to these manor—places.II. Assuming that the exception in the prohibitory clause applies only to the power given to sell Broomhills, the question still remains whether the power given in regard to the other lands to sell or excamb them, with a provision that lands of equal value be brought within the entail, does not nevertheless destroy the fetters of the entail. The clause is introduced after the fetters by these words:—
“And further reserving full power, liberty, and licence,” &c.;
it is a reservation, therefore, or exception from these fetters of a power to sell, toties quoties , without end or restriction, and with an introduction of all the inconveniences which were so fully considered, and which formed so material consideration in the judgment of this House in Stewart v. Fullerton , 4 Wil. & Sh. 196.Even if this provision, in regard to bringing within the entail lands of an equal value with those sold or excambed, were in the form of a condition annexed to the power to sell or excamb, it would be a condition not incapable of performance, but incapable of performance for any effect. In regard to these new lands, should the heir exercising the power to sell or excamb be in debt at the time, and perform the condition in its terms by executing a new entail of lands purchased by him to supply

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But in truth it is no condition at all. It rests entirely upon obligation—it imposes an obligation upon the heir exercising the power of sale to purchase other lands. This obligation may or may not be the foundation of an action against the heir to compel its performance, but its nonperformance would not void the sale which may have been made—that would stand unchallengeable, for the obligation is no way fenced,

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III. If the power to sell or excamb be upon condition of a repurchase of other lands, an entail with such a power was not in contemplation of the Statute 1685, and is not protected by its provisions. Such an entail would be an entail in the abstract—capable of being shifted from one set of lands to another, and not confined to any in particular. The policy of the Statute was to enable landowners to preserve their particular estates in their families by putting them extra commercium , whereas an entail like this contradicts that policy, by giving a power to sell as often as whim or caprice or any other motive may dictate.It is under the Statute alone that entails have any validity. Unless, therefore, the deed in question can be brought within the provisions of the Statute, it cannot have any effect against an onerous purchaser; now the Statute in express terms gives power to the lieges to tailzie, not any lands, but “ their lands,” and the tailzie is to be with clauses whereby “it shall not be lawful” to the heirs “to sell, annailzie, or dispone the said lands or any part thereof, or contract debt, or do any deed whereby the succession to the lands may be frustrate,” and it declares that only “ such tailzies” shall be allowed “in which these clauses shall be insert.”

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The Statute makes no mention of sale, absolute or conditional, or upon conditions precedent or subsequent, beneficial or injurious. It mentions simply a prohibition against sale. A power which enables the heir to put an end to the entail at once and for ever may be very good; but one that enables him, as the power in the present case does, to do that which is manifestly inconsistent with the entail, and at the same time requires him to keep up the entail, is without the contemplation of the Statute, and cannot be good.If conditions are once introduced, where is the Court to stop ? May there not be a mere nominal condition? Or if the condition must be valuable, how is the proportionate value to be ascertained? according to what lights, for the Statute gives none? It protects entails with simple prohibitions against sale; but a power to sell, whether absolute or upon condition, is equally against the prohibition and destructive of it, at least as to the particular lands entailed.The Statute allows parties to entail “their” lands, but if the entail gives power to sell these lands upon condition of entailing others, and so doing, toties quoties , the entail is not of any particular lands, as contemplated by the Statute, but of any lands whatsoever.The Hon. Mr. Wortley and Mr. Rolt were heard for the Respondents.Lord Chancellor .—My Lords, in this case the object of the suit in the Court of Session was to have it declared that the entail was entirely void, or at all events, that there was a power of sale, arising from the imperfect mode in which the estate was guarded against sale by the deed of entail; and the question turns principally upon the construction which has been put upon three clauses in the deed.

The deed of entail prohibiting sale has this exception, “Except

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Now that would be a very strange construction, beyond all doubt, because it would be proving that the party had intended that which was absurd upon the face of it, prohibiting nothing to be done, except that you may do it. It might by possibility happen, that by inadvertence some such provision might have crept into the deed, but it is a construction which a court of justice would be most reluctant to admit, because it is quite clear that it could not be the intention of the party. But when we come to look at the subsequent parts of the deed, it does not appear to me that there is any difficulty whatever in putting a construction upon the clause quite consistent with what most obviously was the intention of the party. It is, “Except the lands, barony ,” in the singular, “by virtue of the faculty,” in the singular, “hereafter specified.” There are two faculties. There are two powers after specified. The one applies to the barony of Broomhills, which was not intended to be included in the entail at all; that is to say, power was given of sale absolutely so far as concerned the barony of Broomhills and the lands belonging to it. And there is another faculty, which authorised what we should, in this country, call a power of sale and exchange.With regard to the barony of Broomhills, the power is, “Excepting and reserving always furth, and from the saids clauses prohibitory and irritant, full power and liberty to the saids whole heirs and members of taillie, above mentioned, to

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Then, when we come to look to this exception, we find it described as reserving out of the clauses prohibitory and irritant, full power to sell, &c. But when we come to the clause giving power of sale and exchange, that form of expression is entirely dropped, and we have a power of sale and exchange, not excepted out of the prohibitory clauses, but “further reserving full power, liberty, and licence to the said heirs and members of taillie” to sell such part of the lands as should be thought expedient, substituting other lands in their place.Here, therefore, there is one barony; and the exception is only of one barony. We find that the first faculty applies to the barony of Broomhills by name; it is so described, and as to it there is given an absolute power of sale. When we come to the faculty or power to sell or exchange, it applies to all the rest of the estate, with the exception of the mansion-houses, which are particularly excepted. Now, to say that the exception applies to the second faculty or power to sell and exchange, would be putting a construction upon this deed as to which there is not a moment's doubt. The intention of the parties is very clearly expressed,—the exception in the prohibitory clause applies only to the barony of Broomhills.Then other objections have been raised as to the power of sale and exchange. And I believe that the only reason why we thought it expedient to hear the case out on the part of the Respondent, was, that it was stated to be a new point. Now, it was very extraordinary that it should be a new point, and that no case should be referred to where the precise question had arisen, because it is neither more nor less than that which is of continual occurrence in this country—a power to sell and exchange; that is to say, to exchange one portion of land as a substitute for another. The only difference here is, that you do not substitute one portion of land for another, but you sell a

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Now, it has been argued that there might be difficulties in effecting this purpose. It does not appear to me that, if such was the purpose, those difficulties, whatever they may be, at all affect the question, because here the entail is to cease, that is to say, the power of selling is to come into operation upon the happening of a future event; and it is not disputed that the entail of the estate may be made so to determine. Then what is the event upon which this entail is to determine? It is, upon other lands being procured and substituted and settled for the same purposes as the lands originally entailed, then the entail as to those lands is to cease, and, by means of the power of sale, a good title is to be given to the purchaser. That event is to precede the power of sale. That may no doubt create difficulties, but not difficulties insurmountable, because we know that it may be so arranged that the transaction would be simultaneous, the money coming in for the estate sold may be the means of paying for the estate purchased.But if those difficulties are such that they cannot be overcome, all that can be said is, that the event has not happened upon which the entail is to cease and the power of sale is to arise. Nothing can be more plain in the terms of this faculty than that, previously to the sale, other lands are to be purchased and to be taken in favour of the same series of heirs, and subject to the same conditions as the lands originally entailed.Then it is said that there is an omission here, that there is no provision that the entail of these newly-purchased lands is to be registered. All I can say upon that is, that the event

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My Lords,these considerations seem to me to remove all doubt as to the present case. In short, except for the construction of the original entail, I apprehend that the question would not have been raised; and when that deed is looked at, the construction appears to be very plain, that the exception applies to the lands of Broomhills; and with regard to the rest of the lands, there does not appear to me to be the least difficulty.Lord Brougham .—My Lords, I take exactly the same view as my noble and learned friend, and have done so from the beginning and throughout the argument. I quite agree with him, that had it not been for the question upon the entail, we should not have heard much upon this point. But in this I also agree with him, that there is nothing in this case but the question of whether the exception eats up the rule or not—whether if there is a rule laid down, it is entirely eaten up by the exception. I, with my noble arid learned friend, do not mean to say that it is impossible that the deed could have been so inadvertently framed. It clearly could never have been the intention of the parties; but I do not say that it might not per

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My Lords,I therefore entirely agree with my noble and learned friend, that in this case we ought to affirm the decision of the Court below, and to affirm it with costs.Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutor therein complained of, be affirmed with costs.Solicitors: Spottiswoode and Robertson— Deans, Dunlop, and Hope, Agents.