series of heirs; and by a general disposition and assignation, in the nature of a mortis causa instrument, he conveyed to his said eldest son all estates, real and personal, debts and sums of money, stock in trade, money in the funds, and all other effects belonging to him, subject to the payment of his debts and donations, and directing the son to lay out the same in the purchase of lands in Scotland, to be entailed and enjoyed with his entailed estate of Newliston.

Mr. Hog, the father, died at Newliston on the 19th of March 1789. At the time of his death his family stood thus: His eldest son, Thomas Hog, was married, and had a large family; his second son, Roger, had died, leaving issue two daughters; his third son, Alexander, was married; his eldest daughter, Mrs. Lashley, was married, and had issue; his second daughter, Rachel, was married, and had issue; his youngest daughter, Mary, had died, leaving issue.

At the time of his death he had a real estate in Scotland of very considerable value; his personal estate in that country, remaining in his own possession, was nearly balanced by his debts; but he had a large sum invested in the British funds, and some annuities in the funds of France; and it became a question whether certain large sums in Bank of Scotland stock, which he had transferred to his eldest son, were still to be considered as part of the personal estate of the father, or as belonging to the son.

The two bonds of provision in favour of Mrs. Lashley, which were found in the possession of Mr. Hog's agent after his death, were tendered to her, but she and her husband refused to accept the same; and soon after these parties brought an action against Thomas Hog, the eldest son, the universal disponee and executor of his father, concluding that he should account to the pursuers for one half of his father's moveable or personal estate, in the

name of legitim; and for Mrs. Lashley's proportion of one third of the goods in communion at the dissolution of the marriage by the death of Mrs. Hog in 1760, to which, it was contended, the children were entitled as next of kin to their mother; and the pursuers insisted, that as all the other younger children had released the father, Mrs. Lashley was entitled to share in the division, as if they had never existed.

The previous case of Bruce v. Bruce had shown the grounds upon which questions of this nature should be discussed; accordingly, in the printed pleadings in this cause, not only the dicta of the institutional writers, and the whole course of the decisions in Scotland, were minutely examined; but the doctrines of certain foreign jurists, and the cases decided in England, were also fully stated.

When the very important questions contained in this case came to be discussed in the Court of Session, the Court had difficulty in coming to a conclusion upon several of them. Upon these, conflicting decisions were pronounced, but they came ultimately to this judgment on the following points of the cause: 1st, That the pursuers were not barred from their present claims by any homologation, acquiescence, or acceptance on their part. 2dly, That these claims could not be excluded, or at all affected, by the trust disposition of the father, executed, but not delivered during his lifetime. 3dly, That the releases of the other children had the same effect as if those children were naturally dead, and operated not to increase the dead's part, but the shares of the children who did not renounce. (The Lord Ordinary had decided that these releases operated in favour of the defender; and, in his interlocutor, argued at considerable length for the policy of deciding in that way.) 4thly, That the lex domicilii was to regulate the succession, not only in regard to the

effects situated in Scotland, but also as to personal estate situated in England; and they remitted to the Lord Ordinary, "to hear parties further with respect to the government annuities in France, and to do therein as he should see just." (The Court had at first decided, that the legitim "could in no degree affect the moveables not situated in Scotland at the father's death.") 5thly, That the pursuers were entitled to one half of the free personal estate, as at the death of the father, wherever situated; and it was remitted to the Lord Ordinary, "to hear parties further upon the pursuer's claim, in right of her mother, to a share of the goods in communion at the dissolution of the marriage, and to do and proceed as to his Lordship shall seem just."

Thomas Hog, the defender in the cause, appealed to the House of Lords against the above judgments given by the Court of Session.

His appeal was taken upon the following points:

1. That there was in this case an implied renunciation on the part of Mrs. Lashley, which barred her claim for legitim.

2. That the right of the children to legitim was barred by the deed executed by Mr. Hog in his lifetime.

3. That the share of a child renouncing accrued to the father, so as to enable him to dispose of it by will.

4. That, even though the deed executed by Mr. Hog were ineffectual in Scotland, it operated as a will in England, so as to convey the personal property in that country according to the intentions of the deceased.

5. That the property in the English funds was to be considered as immoveable property, and descendible to the heir, like a fund in Scotland having a tractus futuri temporis.

The cause was pleaded on both sides by persons of great celebrity; by Mr. Grant (afterwards Sir William

Grant) and Mr. Anstruther (afterwards Sir John Anstruther) for the appellant, and by the Lord Advocate (Robert Dundas) and the Solicitor General of England (Sir John Scott) on the part of the respondent. The hearing was continued for four days. At the conclusion of the argument, on the 7th of May 1792, Lord Thurlow, according to his usual practice when he did not depart from the judgment, moved an affirmance, without delivering any opinion of his own upon these important questions. (7)

After the decision of the first cause, relative to the succession of Roger Hog, the parties returned to the Court of Session, to discuss the other points which remained undecided as between the original parties in that cause. These discussions lasted for several years in the Court of Session, and afterwards formed the subject of another appeal to the House of Lords. (m)

In the meantime a new question had arisen in regard to the succession of Roger Hog, the father, in respect of the legitim of Alexander Hog, one of the sons. This came before the Court in an action of multiplepoinding, at the instance of Thomas Hog, as executor of his father, Roger Hog, v. William Thwaytes and others, assignees of Alexander Hog. (n) During the proceedings in the original cause between Mrs. Lashley and Mr. Hog, and till the decision of the appeal therein on the 7th of May 1792, no claim had been made in regard to the legitim of Alexander Hog. During the pendency of these proceedings he had

(1) I am enabled to give in the Appendix a report of what passed in the House of Lords on this most important cause, taken by an eminent counsel (since long a judge upon the Bench), for the use of the respondent in the cause Balfour v. Scott.

(m) Infra, p. 139.

(n) This important cause is not reported. It was decided in the Court of Session, in 1795; in the House of Lords, 24th June, 1802.

become bankrupt, and William Thwaytes and others had been appointed his assignees.

Immediately after the decision in the first-mentioned appeal, these assignees made a claim upon Thomas Hog for a share of the legitim on behalf of Alexander Hog, the bankrupt, under the following circumstances: Alexander was born in February 1750; in 1768, when only eighteen years of age, he entered into business with Messrs. Farquhar and Cameron of London, grocers. On this occasion Roger, the father, advanced him 1500l., and 1007. for certain legacies which had been left to him.

On the 29th of November 1768, Roger Hog wrote to his son Alexander in these terms: "I intend now to trust and pay you off your patrimony, by advancing 1500l. without interest, which is the sum I always allotted to you; and I owed you 907. of legacies, which I make up to 100%.; so you have to grant me your bond for 400l. at five per cent., which I expect the profits of the house will enable you to pay off in a year or two, which profits I also generously give up to you to increase your capital, though I fancy most would think it my due during your nonage, as is the interest of your capital during my lifetime."

Alexander thus received 2000l. from his father at this period; it does not appear that he granted bond for the 400%. as mentioned in his father's letter, but he granted a special receipt, on the 31st of December 1768, for the 1500l. and 100%. before mentioned. The receipt was in these terms: "I, Alexander Hog, son to Roger Hog of Newliston, esquire, grant me to have received from the said Roger Hog, my father, the sum of 1500l. sterling money, as portion bestowed upon me by him." (He also acknowledged receipt of the 100%. of legacies.) "And for both which sums of 1500l. and 100l. sterling so received by me I discharge the said Roger Hog, my father, and oblige myself to reiterate and renew these presents, after I arrive