on payment of a trifling composition, can be entitled to challenge his own act, bona fide accepted of by the defender in ignorance of any impending bankruptcy. It is still stronger, that he should be allowed to maintain such a reduction on an argu ment which implies that he himself, who may well be supposed to have known his own condition, though it was unknown to the defender, committed a positive fraud against his creditors, and should now strive to avail himself of that fraud, not to set aside the only preference actually obtained by the defender, (for the is yielded), but to involve the defender, whom he induced accept of the bill as partial payment, in a liability to him which the creditors never even stated against him. daid no ab But I apprehend that such a case cannot be maintained in law. Though, by the statute of 1696, (which is a very valuable law), such a transaction, when it turns out to be within sixty days of a sequestration afterwards taking place, is liable to restrictio under certain defined circumstances which must be established in such an action, the indorsation was perfectly good at the time when it was made, to place the indorsee in titulo of the bill And although it may be true that, in some sense, that rule of the statute was established in order to avoid the necessity of proving actual fraud on the part of the receiver of the security, I appre in the right cop

hend that it is not necessarily null and votatute, but m

struction and application of the words of

be reduced by a proper action, in which all the qualities of the statute may be duly established, the notour bankruptcy of th debtor at the time, the fact that the act done is "in preference to other creditors," and, according to the authorities, that it is in prejudice of prior creditors existing at the date of it. I up prehend that the pursuer, in such a case, is not entitled to treat it as a case of actual fraud. That is not in the summons; und if the pursuer had alleged in his summons that he did it in actual fraud, I should think that the Court would not permit him to avail himself of it. dan bios 80099897 o da af den

But now the case is simply this that no reduction having been brought, or even threatened, the defender, left to exercise his own discretion, is allowed to settle with the creditors of Cumming un such terms as he can obtain; that he does settle in bona fid what he and the others interested reckoned to be fair terms, wil yet no interpellation had been used against him; and that, after this is all past, and twelve months after Cumming and his credi tors have been discharged, this pursuer, getting an assignment by his own creditors, and not contented with getting all the pre ference which the defender had really obtained, or could obtain, insists for reduction of the indorsation, to the effect of subjecting the defender to responsibility for the full amount of the bill

It seemed to be confessed that no such case had ever occurral and I am of opinion that we should do grievous injustice wa were to sanction it against the defender, or to give the pursar such an intolerable advantage of his own confessed wrong. When he gets the £40, it is all that the defender got, or could get, by the indorsation. If he were to get more, it would be encourag ing a second fraud on his part, in misleading the defender m accept of the settlement with Cumming's creditors, in the belie that no reduction to any other effect would be attempted. It is going far enough to give him this, where no reduction had been brought before that settlement. It was truly said, that the pursuer would have had a better action against the defender if had not claimed and accepted the fair composition which the other creditors agreed to.

Lord Cockburn.-It appears to me that this is a very simple

debtor in the bill; and that upon thus learning that the indorsee was about to enforce payment as much as he could, the trustee Si nothing to interpel him. The trustee was also called to a reeting of the acceptor's creditors. And the indorsee actually aimed to be ranked on this bill on the estate of his indorsers. Yet throughout all these proceedings the defender was not only warned, but he was allowed, without any interpellation, to ve to take, and to receive 8s. In the pound for this very bill. In these circumstances, it appears to me that the defender rukes a most ample sacrifice when he tenders the £40 of consition. If he had chosen to refuse even this, I see strong gands on which that resolution might have been defended. ppose that the trustee, instead of challenging the bill, had “ted the defender's chaim, and paid him a composition out of the ser's estate-could he reclaim this? Certainly not. Now, I not think he did much less. He allowed the defender to rate on the bill, as not meant to be reduced; and then he tries raciaim the produce. I do not at present see a good answer - defence of bona fide consumption against such an attempt. the defender's willingness to give up the £40 leaves the sent case without a doubt.

Lord Medicyn absent.

The Court pronounced the following interlocutor:Find that the indorsation of the bill in dispute, as being an dorsation granted within sixty days of bankruptcy, in security * prior debt, is liable to challenge under the provisions of the #ute 1696, and other statutes libelled; reduce the same acingly, and decern: Find that the defender, as the creditor 2. the bill libelled, and acting, and believing himself entitled to in his own right, and for his own interest, did agree to acthe composition by Richard Cumming, the debtor in the said which composition was as large in point of amount, and as arable in all other respects, as could then, by any legal steps qerwise, have been realized on a full and absolute surrender distribution of the said Richard Cumming's estate, and, at Levents, was in bona fide accepted as such by the defender, he eving himself at the time to be treating for his own proper terest, as creditor in the debt: Find that the defender, who nas discharged the said Richard Cumming of liability in spect of the said bill, is not liable in payment to the pursuer More than the amount of the composition which he himself, the above circumstances, was induced to accept, and actually ved from the said Richard Cumming: Find that the deader, having all along, et ante lilem motum, tendered to the purpayment of his composition, the present action was uncalled Therefore, on the whole matter, find the defender liable vake payment to the pursuer only of the sum of £40, being Kotaount of composition received by himself as aforesaid, with interest thereon since the 26th day of May 1846, being the te at which he received the same; and decern: On the other d, and in the special circumstances of the case, find the deer entitled to the expenses of process, but subject to modion," &c.

Lord Ordinary, Ivory.-Act. Neaves, Donaldson; John Robertur, S.S.C. Agent-Alt. Marshall, Macfarlane; Inglis and ts, W.S. Agents.-T. Clerk-(W.G.T.)

31st January 1850.

SECOND DIVISION.

No. 82.-NEILL and COMPANY, Pursuers, v. CAMPBELL and HOPKIRK and others, Defenders.

-Oath in Reference-Resting-Owing--Triennial Prescrip-Terms of an oath in reference, und of letters therein referred which-Held to establish resting owing, in an action for paywhat of an account.

Action at the instance of Messrs. Neill and Company, iters in Edinburgh, against the dissolved firm of Jars. Campbell and Hopkirk, W.S., and John Glassrd Hopkirk individually, (the other partner having en discharged under a sequestration), for £101, the mount of an account for law-printing, ending 4th November 1814, and executed for the dissolved com

any.

"In answer to yours of yesterday, I beg to say, that I have not recovered payment of any part of your account. I have, however, authority to receive and discharge all accounts due by my late firm; and as I trust very shortly to be in funds, I hope for your indulgence for a little while longer."

And again, on 22d September 1847

"I have received a demand from Messrs. Neill and Co. for payment of an account for printing, due by the late firm of Campbell and Hopkirk, and amounting to £101, with intimation that an action will be raised if not discharged, in consequence of which I have taken the liberty of troubling you with the following explanation.

The account in question was incurred on the employment of Mr. John Campbell, and is almost entirely for personal processes of his. He was sequestrated, and his estate not yielding above sixpence a-pound, the account is demanded from me, being incurred during the copartnership. Mr. Campbell is largely indebted to me; and I need hardly say, that the accounts which comprehend the printing account of Messrs. Neill and Co. are an entire and irrecoverable loss to me. I have been put to much trouble and inconvenience by Mr. Campbell, which have prevented my getting the funds of the company collected; but an arrangement has now been made, by which his trustee has given up all claims upon the company, or me as an individual. I had a meeting with the late lamented Mr. Fraser, your partner, and the whole circumstances were explained to him, and he promised, that not only would time be given, but a considerable abatement made, on account of the circumstances I have now stated. I hope that you will kindly confirm his intention, and refrain from any law proceedings; and if so, I will consider myself bound to resort to Messrs. Neill and Co. for any printing which my partner Mr. Forsyth and I may have; and will study to have the claim discharged as early as I possibly can."

On 28th March 1848, the present action was raised. Hopkirk averred that the printing charged for in the account libelled was done, not for the company, but for behoof of Campbell alone, and pleaded prescription.

The pursuers having referred to his oath, Hopkirk deponed as follows:

"Having been shown the account No. 5 of process, and his own holograph letter of 5th February 1846, No. 6 of process, and interrogated-- Depones, I cannot say that the said letter refers to that account, as I had not seen the account at the date of that letter. Being shown the subsequent letter of 224 September 1847, addressed to Dr. Neill, in which he says- I have received a demand from Messrs. Neill and Co. for payment of an account for printing, due by the late firm of Campbell and Hopkirk, and amounting to £101;' and interrogated, Whether the said letter refers to the foresaid account? Depones, To the best of my belief and recollection, it does. Interrogated, Whether, since the date of the said letter, he has made any payment to the said Dr. Neill, or to Messrs. Neill and Company? Depones, I have not. I add, in explanation, that the last mentioned letter refers to an interview I had with the late Mr. Fraser, the managing partner of Neill and Company. I had two interviews with Mr. Fraser, and the letter refers to the last. On the first occasion, which was at the end of 1845, or beginning of 1846, Mr. Fraser called for me regarding payment of an account for printing. I explained to Mr. Fraser at that time that Mr. Campbell was his employer. I stated to Mr. Fraser that I never had sent a paper to their office. I put it to Mr. Fraser's recollection, whether he had not printed papers for Mr. Campbell previous to the copartnery of Campbell and Hopkirk-which he admitted. I mentioned to him that I could not admit the responsibility of either myself or the company for the account. I also stated, that I understood that the account was for the printing of papers in processes which were carried on by Mr. Campbell before the copartnery. Mr. Fraser said that he would see about lodging a claim on Mr. Campbell's estate. Mr. Fraser called on me again some months afterwards, when he complained of the loss which Neill and Company had sustained, as Mr. Campbell's estate was likely to yield a mere trifle. Mr.

Fraser then spoke of raising an action against the company; and I hinted to him that, without admitting the responsibility, I might be induced to pay him a sum to get quit of the claim, in order to avoid a lawsuit, and in which case I would require an indorsation or assignation of the account; but I added, that I would require time to gather in funds; when Mr. Fraser said he would consider of it, and went away. I had no farther communication with him on the subject, so far as I recollect. It was to this last interview with Mr. Fraser that the letter of 224 September 1847 refers; and which letter states, that 'the account in question was incurred on the employment of Mr. John Campbell, and it is almost entirely for personal processes of his.' In reference to that part of the letter which states, that the accounts which comprehend the printing account of Messrs. Neill and Company are an entire irrecoverable loss to me,' I wish to explain, that, if I had advanced any sum, as hinted at, to Mr. Fraser, I could not have recovered it from Mr. Campbell's share of the profits, to effect which was the reason why I proposed to take an assignation to the account; for by this time it had been ascertained that Mr. Campbell was largely indebted to the company of Campbell and Hopkirk. Interrogated, Whether said last mentioned letter was written of the date it bears, and is holograph of the deponent? Depones affirmative. Interrogated, Whether, as the said letter begins by referring to a demand received from Messrs. Neill and Company for payment of the account, the deponent is possessed of the letter making the demand? Depones, I am not aware that I have such a letter; but I will make a search, and if I find it, I will send it to the commissioner. Interrogated-Depones, The partnership between Mr. Campbell and me commenced on the 15th May 1843, and was dissolved on the 24th November 1844. Interrogated, Whether, after the company of Campbell and Hopkirk was established, the processes above referred to were carried on in the name of the company; and whether the name of the company was indorsed on the printed papers? Depones, I do not know, as I never interfered with the conducting of these processes, as Mr. Campbell took sole charge of them. Interrogated, Whether there are any entries in the books of the company relative to said processes? Depones, Yes, there are. Interrogated by the commissioner, on the suggestion of the defender's counsel, Whether the company had any interest in the profits of the processes above referred to? Depones, They had not, as it had been arranged, on entering into the copartnery, that they were to be carried on by Mr. Campbell for his own behoof. Interrogated, Whether, during the subsistence of the copartnery, they employed a printer in the company cases? Depones, They did; Mr. Burness was printer to the company. Interrogated, Whether the account sued for was incurred, as set forth in the libel; and whether it is now resting-owing? Depones negative."

The Lord Ordinary pronounced the following interlocutor:

"20th December 1849.-Finds that the said oath is not sufficient to establish the libel and resting-owing of the account sued for, by the company of Campbell and Hopkirk, and, therefore, that the same is negative of the reference: Assoilzies the defenders from the conclusions of the libel; and decerns.

"Note. This action is laid for an account of printing, amounting to £101: 2: 6, betwixt 17th June 1843 and 9th November 1844, said to be due by the company of Campbell and Hopkirk, 'having been incurred for and by order of the said company of Campbell and Hopkirk, defenders.' The action not having been instituted until the 28th of March 1848, prescription was pleaded, whereupon the pursuers referred the libel and the restingowing of the account sued for to the oaths of the defenders, Mr. Hopkirk and Mr. Campbell.' The reference to the path of Mr. Hopkirk was sustained and taken; and the Court having determined that the reference to the oath of Mr. Campbell was incompetent, the question now comes to be determined on Mr. Hopkirk's oath. That oath must be taken as a whole, and be read along with the letters therein referred to. The first of these letters is dated 5th February 1846, in which Mr. Hopkirk says, that he had not recovered payment of any part of the account of the pursuers, but that he had 'authority to receive and discharge all accounts due to my late firm; and as I trust very shortly to be in funds, I hope for your indulgence for a little while longer.'

"Now, on this it is to be observed-1st. That a mere promise of payment, and a solicitation for time, before prescription has

occurred, are not sufficient to set up a claim; and, 2d. This letter is not a sufficient acknowledgment of the account in question being a company debt, more especially as Mr. Hopkirk expressly swears, I cannot say that the said letter refers to that account, as I had not seen the account at the date of that letter. He also swears, that the account refers to processes which wen carried on by Mr. Campbell for his own behoof; that the com pany employed a printer of their own, and had no interest in these processes. He says, indeed, that there are entries in the company's books about the processes, but what these entrie are, is not explained. It is not said that there are any such en tries with respect to the printing; and although the question in put, whether the company's name was indorsed on the printe papers, Mr. Hopkirk swears that he does not know how the fact stands. As no printed papers appear to have been exhibited to him (although these papers were surely within the power the pursuers) bearing such indorsement, it must be held th they did not show the name of the firm.

"The other piece of evidence is the letter of 22d Septembe 1847, being also during the currency of the years of presc tion. That letter does not acknowledge that the account w incurred on the employment of the company, but expresy bears that it was on that of Mr. Campbell. It no doubt bea 'Mr. Campbell is largely indebted to me; and I need hardy say, that the accounts which comprehend the printing accom of Messrs. Neill and Co. are an entire and irrecoverable to me.' But this must be taken with the explanation gives in the oath, which bears that, at the conference with Mr. Fras to which the letter refers, Mr. Hopkirk had explained that le did not admit the responsibility-had suggested that a claim should be made on Campbell's estate; and although he stated that he might be induced to pay a sum to get quit of a lawsuit any sum which he so paid would be a loss to him, and could a come out of Campbell's share of the profits, as that gentleman was largely indebted to the company. This also must be take as so far explanatory of the concluding paragraph of the letter in which Mr. Hopkirk promises, under certain conditions, to have the claim discharged as soon as possible. The oath, the whole, may not be very satisfactory, or the case free m difficulty; but, taken as it stands, the Lord Ordinary does think that it establishes the employment by the order of Camp bell and Hopkirk, nor the liability of that company for the des which is here the sole ground of action. Assuming that they were not the employers of the pursuers, the letters referred to would not of themselves establish a personal ground of action against Mr. Hopkirk. But, at any rate, such is not the nature of the present action or reference, on the oath taken under which this cause must be determined." OCEL wollor adi gainions The pursuers reclaimed. ay or anin link Lord Justice-Clerk.-I must say I have no difficulty in this case, although I differ from the Lord Ordinary. In reading an oath in reference, we are not entitled to disregard the circa stances under which parties are admittedly acting. Now, appears from the oath that a law firm, consisting of two pe sons, was constituted between Campbell and Hopkirk. Is part of a law-agent's necessary business to have certain papa printed for the parties for whom he acts, for the use of the Court. In the course of the business of this firm, Neill Company were employed by Campbell to print certain paper which, however that may have happened, undoubtedly find thei way into the books of this firm of Campbell and Hopkirk. Now there can be no doubt that one partner of a company may bind the other, without the knowledge of that other. If, indee Hopkirk had, at the time, communicated to Neill and Com pany that Campbell was ordering the printing of these papers on his own responsibility, and that the credit of the company was not to be looked to, that would have been different; but b did not do so, and a private agreement between the parti themselves can have no effect on their contracts with thin parties. It is said that there is no evidence that this printing was done for the company; but in nine cases out of ten, suc printing, being within the scope of a law-firm's business, is jus ordered by one of the partners, and nothing is said about it being a company obligation on either side. Then, I must hold that the letters written by Hopkirk refer to this account; an they certainly do not amount to a denial of his liability, but as I think, treat the debt as one for which the company is liable Lord Moncreiff-I am of the same opinion, and on the sam grounds. This is a debt of the company, and Neill and Com

any must have relied on the company in doing this work. Nor an I get over the correspondence, where the debt is treated as company debt, and indulgence and delay are asked. I dareay Mr. Hopkirk may have believed it to be a debt of Campell individually, and for that reason resisted payment; but, in hatever way the debt may have been contracted, I cannot oubt that Mr. Hopkirk is liable for it as a company debt. Lord Cockburn.-I concur.

Lord Medwyn absent.

The Court pronounced the following interlocutor:"Alter the interlocutor complained of: Find the constitution subsistence of the debt as resting-owing sufficiently proved, decern against the defender for payment of the same as eiled: Find expenses due; allow the account," &c.

Lord Ordinary, Robertson.-Act. More, Inglis; W. A. G. and Ellis, W.S. Agents.-Alt. Dean of Faculty (M'Neill), Pattison; 'arty Agent.—T. Clerk.—(W.G.T.)

K

1st February 1850.

FIRST DIVISION.

No. 83.-THE TRUSTEES of JAMES SWAN, Pursuers, v. THE MUIRKIRK IRON COMPANY, Defenders. reement-Clause-Construction-A landowner made an agreewant with an iron-foundry company containing the following clause: And further, the said J. C. hereby grants to the said company and their foresaids the command of all the water on the lands of O., and on any of the neighbouring proprietors' lands which the said company may think proper to lead through the lands of O., in such and manner as they or their foresaids may think most proper for the use of the works, that either now are, or hereafter may be, rried on by them at M., and that either in making dams, waterwads, or otherwise, which they, their heirs or assignees, shall have as pocer to do as the said J. C. might have done before entering to these presents, and that at any time during the space of 999 years from and after Whitsunday 1787 years."-Held that the company were entitled to use this water course as a canal for the Page of minerals to their works, and to make a towing-path agus banks for that purpose.

The

pursuers were owners of the lands of Oldhouse. in Ayrshire, under a trust-conveyance made by ames Swan. John Campbell, a former owner of these ards, made in 1790 an agreement with the defenders, ntaining the following clause :

And further, the said John Campbell hereby grants to the a company and their foresaids the command of all the water the lands of Oldhouseburn, and on any of the neighbouring prietors' lands which the said company may think proper to Pad through the lands of Oldhouseburn, in such way and man

as they or their foresaids may think most proper for the use the works, that either now are, or hereafter may be, carried by them at Muirkirk, and that either in making dams, waterad, or otherwise, which they, their heirs or assignees, shall are as fail power to do as the said John Campbell might have

e before entering into these presents, and that at any time anng the space of 999 years from and after Whitsunday 1787 jer-the like powers having been granted to them for the space of 38 years from that time, by tack dated the 13th and 17th days of June 1787 years, granted by the said John Camphell to the said company."

The tack also contained the following clause:“And further, the said company, in consideration of the proangation of the power of using the water, and of carrying the proposed canal or water-lead through the lands of Oldhouseber, the said company and their foresaids shall be obliged to y to the said John Campbell and his foresaids an additional yearly rent, at the rate of fourpence halfpenny per fall, for what part of his ground shall be occupied by the said water-lead, to mmence from the time the said company shall break ground er making the same; and the said company shall, at their own xpense, and as soon as the said canal is made, put one stone bridge, and four wooden ones, over the same, in such parts of Oldhouseburn ground as the said John Campbell or his foresaids shall point out.”

Campbell also conferred upon the defenders, by the above tack, the right of removing limestone from the estate for the period of 35 years from Whitsunday 1790.

In 1839, the defenders began, and afterwards continued, to use the water-course in question as a boatcanal for the carriage of minerals to their works at Muirkirk. For this purpose, they made towing-paths along its banks. The pursuers received rent, in terms of the agreement, for the additional land taken up in consequence of those operations.

In October 1844, the pursuers presented to the Sheriff of Ayrshire an application for interdict against the defenders, praying the Sheriff

"to interdict, prohibit, and discharge the said company, or their said manager, and the said individual partners thereof, and all others in their name or employment, from using said towingpath or track alongst the side of the water lead or course, made by the said company for the use of their iron-works at Muirkirk as aforesaid; and also to interdict, prohibit, and discharge them from conveying minerals by dragging boats alongst said water-lead or course by means of horses travelling over said towing-path or track."

The application was disposed of by the following interlocutor of the Sheriff-substitute (Jamieson), to which the Sheriff (Bell) adhered :—

"Finds that, by the said tack dated 1790, the petitioners' author granted to the Muirkirk Iron Company, for the period of 999 years, the command of all the water on the lands of Oldhouseburn, &c. for the use of their works, and that either in making dams, water-leads, or otherwise, and with as full power as the granter himself possessed: Finds that, by the said lease, the respondents agreed to pay an additional yearly rent of 44d. per fall for the ground that should be occupied by the proposed water-lead or canal: Finds it admitted that the respondents, shortly after the date of the lease, constructed the proposed canal, and have occupied the same, with its banks, to the present time, and paid rent therefor: Finds that a considerable part of the rent is paid for the use of the banks, it being averred, and not denied, that the extent of ground paid for amounts to 586 falls, of which only 220 are occupied by the canal: Finds that, under the unqualified grant of the command of the water for the use of the works, the respondents are entitled to use the canal for the conveyance of minerals in boats: Finds that the ordinary uses of a canal imply the use of a towing-path or track for towing boats along the same: Finds no allegation that more ground is required for this purpose: Finds that the respondents have used the canal banks in this manner since the year 1839; and that the petitioners have not averred that they have suffered any additional loss or inconvenience from the use of the banks for which they have accepted an equivalent in rent: Therefore, sustains the defences on the merits, refuses the interdict, and decerns: Finds the petitioners liable in expenses."

The present process of declarator was raised in 1845. It contained, inter alia, the following conclusion :

"Therefore, it ought and should be found and declared," &c. "that the defenders, the said Muirkirk Iron Company, and individual partners, are not entitled, in virtue of the said tack or otherwise, to use or employ the foresaid waters, or the said water-course or lead, in so far as the same passes through the foresaid lands, for the purposes of a navigable canal, or for the purpose of plying boats or vessels; and farther, that they are not entitled to use or employ the banks or sides of the said watercourse or lead as a track for horses in dragging boats or vessels: But, on the contrary, it ought and should be found and declared, by decree foresaid, that the defenders are only entitled to employ the said waters in so far as they arise in, or pass through, the foresaid lands, for the proper and necessary use of their works at Muirkirk, in the same manner as the said waters were employed by them previous to their commencing to ply boats or vessels as aforesaid, or in any other way not inconsistent with the fair and legitimate exercise and enjoyment of their rights under the foresaid tack, as these may be determined in the course of the process to follow hereon; and farther, that the defenders

are not entitled to use, occupy, or encroach on any part of the foresaid lands of Oldhouseburn or Auldhouseburn, except in so far as necessary, for the purpose of leading or conveying the said waters to their works at Muirkirk."

The pursuers also presented a note of advocation of the process of interdict, with which the process of declarator was conjoined.

The Lord Ordinary pronounced the following interlocutor:

"In the declarator, assoilzies the defenders from the declaratory conclusions of the action, and also from the conclusion for damages, in so far as the same is dependent upon, or connected with, the declaratory conclusions; and in the advocation, advocates the cause; adheres to the interlocutors complained of: Of new, sustains the defences for the respondents in the Inferior Court; and refuses the interdict craved by the complainers; and feds the respondents entitled to the expenses in the Inferior Court, and decerns: And in the conjoined processes, finds the defenders in the declarator, and respondents in the advocation, entitled to all the expenses incurred by them in reference to that portion of the conjoined processes disposed of by this interlocutor; and allows accounts of expenses," &c.

Robertson for respondent

This is a narrow point upon the construction of a lease. We contend that the clause of the tack gives us an absolute command and dominium over the whole of the water for the purposes of our works. There is no limitation introduced into the grant. It is as unlimited as it could possibly be made. We are entitled to deal with the water just as Campbell himself could have done. The pursuers aver on the record, that we, "the lessees in the said tack, some time ago commenced, and still continue, to ply boats or vessels for the carriage of various commodities to and from their works at Muirkirk, along the said water course or lead; and they have also formed a towing-path or track alongst one of the banks or sides of the said water-course or lead, whereon, or along which, they are in the practice of driving horses for the purpose of dragging the said boats or vessels." Does not this fall within the terms of the grant? We do all this as subservient to the purposes of the work. The defenders themselves state, that we are making use of this water-course for the purposes of the works. They say they are singular successors. But they have been in possession many years; and ever since 1889, they have accepted rent for the whole space occupied by the water and by the towing-path. They are therefore barred by acquiescence, The repeated use of the word canal in the tack shows that one of the uses of the water, contemplated by the parties to this agreement, was the conveyance of minerals.

Inglis in reply

The Court must consider the tack along with the state of possession which has taken place for 40 years prior to 1839. The state of possession during that period shows that the grant has been practically construed in the sense contended for by us. In a question of this kind, the state of possession is of the greatest importance. It is not said that, when the water-course was changed into a canal, there was any change made on the works.. It is not averred that, during the long period which preceded 1839, it would not have been the interest of the defenders to change the water-course into a canal, if they had been entitled to do so. The state of possession for so many years construes the grant. Take the case of a paper-mill, for which manufacture a considerable amount of spring water is necessary; Suppose a neighbouring proprietor should grant all the water on his estate for the purposes of such a mill: Pipes or an open cut might be formed for leading it away to the mill. But would that imply the right of changing these conduits into a navigable canal? Such a grant confers merely a right of road to carry away water; it does not imply that the water itself is to be used as a roadway. This agreement contains a tack of limestone.

[Lord Justice General.-The clause as to the limestone is of much importance, as showing that the means of conveying it by the canal was in contemplation.]

But the tack of limestone is for 35 years only, whereas the grant of the water is for 999 years. As to that right, the tack expirea long ago, and during its existence the water never was used as a means of conveying away the limestone. All the right which the defenders have is to lead through the lands of Oldhouse sch water as they might collect, either from these lands, or which they might obtain a grant of from neighbouring proprietors. It is a right to lead the water through. Now, a navigable canalisa stagnant water. The words, "which they shall have as full poser to do as the said John Campbell might have done," are limited by what precedes. The defenders are entitled to do the particulat things enumerated as Campbell might have done. The wor "canal" does not help the defenders' case. Any conduit pap may, with perfect propriety of speech, be called a canal. The words, canal or water-lead, are here used as convertible term A water-lead has sometimes been called a canal; but a ca gable canal has never been called a water-lead. If the defend argument be sound, vessels of any burden might be set to ar gate this canal. Besides, there is no provision for land to taken to serve as a towing-path, or that the bridges to be shall be so built as to admit of the passage of boats. The fenders are entitled to use this water-course merely as a wate power, or as an ingredient for the use of their manufacture

Lord Justice-General.We have a very distinct and articniat interlocutor by the Sheriff-substitute, which has been approved of by the Lord Ordinary; and I must say that I entirely agre with his Lordship.

These works have existed for more than half a century. It was clear that much water would be required by them, and this contract was therefore entered into. No doubt, if this contrast was in any respect ambiguous, or of doubtful meaning, it wo be very desirable to resort to the state of possession for the par pose of construing it. But I am of opinion that it is altoget unambiguous. It confers upon the defenders a full command all the water collected from the lands for the purpose of thef works. It is said that the words, "making dams, water-less, or otherwise," infer a limitation. No doubt the word others is not to be construed as giving a new right altogether, ba intended only to show the extent of the right. This is sh by the other clause in the deed-(reads the second clanse, store quoted). Is it possible, on any principle of fair construction to suppose that this water was for some special manufacturas purpose, and was not a grant of the command of the whole waler for any uses serviceable to the works? And what use is more reasonable than that which appears to have been begun in 1839, and for which rent at the stipulated rate of 44d. per falls we received by the pursuers? This clearly shows acquiescence in th use to which the water was put. I think the Sheriff-subst put from the first a sensible and rational construction upos (4 clause; and that the interlocutor of the Lord Ordinary, confirm ing that judgment, is well founded.

Lord Mackenzie.-I am of the same opinion. This case was be construed as a lease for rent. It must receive a fair reasonable construction. I think the interlocutor is right. Th tack grants to the defenders the command of all the water whacke they can collect on the lands of Oldhouse; that is the first thing Then it grants a right to the land so far as necessary for the f use of that water, and of the water collected from neighbour estates, so far as it can be obtained. The defenders are to hate the land at a certain stipulated rent, so far as necessary for re full use of the water. They are to have the power of dis this as fully "as the said John Campbell might have done: that is to say, so far as this-the command of the water-18 0 cerned, the defenders come in place of the proprietor. Surdy if ever there was a direction to construe a grant liberally, ther is such a direction here. And why not? What have the por suers to fear? The more land that is taken from them under this clause of the tack, the greater the rent they will receive. I think, therefore, the defenders are entitled to use this canal for the carriage of things requisite for their works. I don't say that they are entitled to put shipping of the largest size on this canal-though I don't see what interest the proprietor could have to object to this. It is plain, however, that all that was intended here was merely a boat canal. The use of the wind canal in the tack supports this construction. It certainly ca not be considered as excluding it. The right to a towing-pat of course, depends on the other question. Is it a lawful apperdage to that other right? I think it is. Besides, whatever land the defenders take for this purpose, they must pay ren