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all which time she was in possession of a judgment in her favour, shewing not only that she was in bona fide, but that she was right in point of law, and entitled to hold on, does not protect her? Could I advise your Lordships that there was a call upon her to say, 'It is true they have decided in my favour, but I knew they were wrong in their views of the Scotch law, and could not construe the instrument according to its plain intent, and therefore I will abandon the judgment in my favour, and pack up my goods, and remove from the farm?' They say she was in mala fide during all that time, but they must be prepared to shew that. But then (and that is the most effective mode of putting the question), it is argued by Sir Charles Wetherell and Mr. Wilson, that this is not the common case of a deed sought to be reduced; they say there is this distinction, that if there was an entail, and the question was, whether a lease was granted under fetters of entail in contravention of those fetters, which was the case of Eliot and Pott, or if there was a lease sought to be reduced on the ground of force, or fraud, or concussion, which is a head of force in the Scotch law, so as to shew that that lease ought not to stand, but ought to be set asidein those cases, they say, the question will arise of bona fide possession; and while they admit that they have no instance of a person being held accountable for violent profits because he is in malá fide possession, there standing a judgment in his favour, though they admit there are no such instances, they put it to the other side and say, 'Do you produce a case in all respects like the present, where the tenants have been held to be in bona fide possession with or without a judgment—where

1830.

CARNEGY

บ.

SCOTT.

1830.

CARNEGY

V.

SCOTT.

there is no reduction of any deed,' but a case resembling the present, which arises on the construction (as I understand them) imposed upon the deed, and not the destruction of the deed by a reduction.

I cannot see that there is any solid ground for this distinction because the title of the party is the lease: the lease may be bad on various grounds; it is bad if it is granted in the non-execution of a power; it is bad if it is granted in contravention of the fetters of a good entail; it is bad if it is granted by a person non habens potestatem to grant; it is bad if it is extorted by force, or obtained through fraud; or if it is granted by a married woman without the consent of her husband, or by an infant without the consent of the guardian, in which case it is reduceable as against the infant. There are all these various heads of reduction ; but there is also another head on which the lease is not valid, to convey the interest sought to be established by it, and that is, that the construction of the lease itself, in point of law, does not give the right contended for to the lessee. I do not see, upon principle, any distinction whatever between those various sources of invalidity in the title of the lessee; all that is different in this case is the ground upon which the title shall be held invalid. The invalidity of the title of the lessee is the only question: he has no valid title, whether that flaw in his title arises from the entail being contravened, under which the lessor made the lease; or whether it arises from force or fraud impressed or imposed upon him when he granted the lease; or whether it is bad from the words of the lease never having conveyed an estate to the

lessee for
years. In all those cases, the invalidity
of the lease is the material point; and that being
once established, the only question that remains
is, whether he was in bona fide or mala fide during
the period of possession. Such being the grounds
on which I have put this question; and having
repeatedly asked for a case in which there ever
has been a decision, or even an obiter dictum of
the Court to the contrary, can I move the House
to reverse the judgment? I observe, also, that
Lord Pitmilly first of all pronounced an interlo-
cutor as Lord Ordinary, by which he found violent
profits due, which interlocutor your Lordships set
up yet with all that leaning in favour of the
original decision, and holding it to be a clear case,
as he had a right to do at all times, and still more
after the decision affirming his interlocutor, Lord
Pitmilly afterwards, as a Scotch lawyer, when he
came to re-consider the question of violent profits,
and discussed the question with his brothers, gave
it in favour of the lessee, notwithstanding his own
interlocutor.

I therefore cannot, on these grounds, recommend to your Lordships to do that which would be for the first time introducing into the law of Scotland a principle, not only never before acknowledged in that system of jurisprudence, but which is negatived by repeated decisions, between the principles of which decisions and the present I can discover no distinction. In this case the House would certainly not be disposed to give any costs.

Interlocutors affirmed.

1830.

CARNEGY

v.

SCOTT.

INDEX.

ACCUMULATION. See EXECUTORY DEVISE.

ADVOWSON, APPENDENT.

AGREEMENT. See EQUITY.

See PREBENDARY.

PARTNERSHIP.

AMENDED BILL. See PRACTICE.

ANSWER TO CROSS BILL. See PRACTICE.

BOND. See EQUITY.

CHURCH. See PREBENDARY.

CLERGY. See PREBENDARY.

CONSIDERATION. See EQUITY.
CONSTRUCTION. See AGREEMENT.
DEVISE. See EXECUTORY DEVISE.
ELECTION.

A party claiming under an instrument raising, as he con-
tends, a case of election in equity against a party in
possession under a legal right, must make out a clear
and satisfactory case, to entitle him to displace the legal
right.
Where under the will of a son giving benefits to his

father, but of doubtful construction, there was no
evidence that the father understood that a case of
election was raised by the will, or that, in fact, he
elected to take under it, and to give up estates disposed
of by the will to which he was entitled under a mar-
riage settlement; and where it was in evidence that the
father did acts in opposition to the will of the son, and
where, by his own will, he so disposed of the estates
that his daughters might either claim life estates under
that will, or estates in fee under the will of the son;
and it was in evidence that by letters they declared,
and executed deeds reciting that they took as tenants
for life under the will of their father; and, especially,
where the equity, if any, arose forty-three years before
the suit, and the daughters had then the opportunity to
call on the father to elect, and failed to do so: Held,
that it was doubtful whether a case of election existed,
and that a party claiming under the daughters as heir
could not assert such right after such lapse of time in a
court of equity.

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