June 29, 1827. Mrs Noble's trustees and others appealed. Appellants.-Mrs Noble's capacity to dispose of her estate and effects, has been established by a verdict of a Jury. The deeds prove that instructions to draw them were given; and the respondents did not prove that no instructions were given for that purpose. It is immaterial whether she was in such a state of mind as not to be able to judge correctly with regard to the effect of her deeds, as depriving her of all power of revoking or altering the same. That is a matter quite distinct from the capacity to will and dispose of her estate and effects after death, which capacity she is proved to have possessed. The verdict, finding these deeds were not the free and voluntary acts of 'Mrs Noble, but that there is not sufficient evidence to show that they were obtained by the undue influence of the de'fender,' is not only inconsistent with the previous verdict, that she was capable of willing and disposing of her estate and effects, but is so also with itself; it being proved that the deeds were not obtained by undue influence, and yet it is found they were not Mrs Noble's deeds, although she was capable of making them. The respondents took issues as to particular allegations, which not having been proved affirmatively, the result to the appellants is the same as if the Jury had found negatively these points. Indeed the respondents being pursuers, any inconsistency or contradiction in the verdicts must be fatal to their plea. As to signing by notaries, it is sufficient that Mrs Noble felt the defect of her sight, and desired the notaries to sign. The respondents cannot be permitted to falsify the subscription, unless they at the same time prove no authority given the notaries to sign; but the Jury have found that she gave the notaries instructions to sign in her behalf. Respondents.-The incapacity of Mrs Noble to understand these deeds-and that these deeds were not her free and volun 'whatever under that trust-deed, and has not been left any legacy or other provision by the said deed. 2dly, That Mr Hamilton Ritchie has been called as a defender in 'this case, merely to deprive the defenders of the benefit of his evidence, and that he 'cannot be made personally responsible for the costs of suit. 3dly, And that there being necessarily, from the very nature of the case, a penuria testium, Mr Hamilton 'Ritchie is a necessary witness, and admissible as such by the law of Scotland, although he is the nephew of one of the defenders.' This bill of exceptions was disallowed; and against this judgment, as well as one refusing a new trial, the appellants entered an appeal, but the respondents having presented a petition in regard to the competency of the appeal as to those judgments, the appellants withdrew it. tary acts-being established by a verdict of a Jury, the deeds June 29, 1327. cannot be supported. They are not her deeds; and that puts the inquiry at rest. But these deeds were irregularly executed, and ought to bear no faith in judgment, not having been subscribed by Mrs Noble herself, and the reason assigned by the notaries, in their doquet, having been proved to be false. The House of Lords ordered and adjudged that the appeal be dismissed, and the interlocutor complained of affirmed. Appellants' Authorities.-Bell on Testing Deeds, p. 174. Robertson, Feb. 4, and Respondents' Authorities.-Bell on Testing Deeds, p. 207. 55 Geo. III. c. 42, c. 8. MONCRIEFF and WEBSTER,-SPOTTISWOODE and ROBERTSON, |