tion: That, on petition for the respondents, the Justices did, on the 23d of July 1830,

"unanimously find, (1.) That the new line of turnpike road, mentioned in the petition, from Westkerse to or near to Glentirran Mills, and from thence to Broich Bridge, has been completed and opened to the public. (2.) That a proper and sufficient road of communication has been opened by Mr Campbell of Boqulian from Burntown to the Glen road, as stated in the said petition. (3.) That another proper and sufficient road of communication has also been opened by Mr Campbell from the said new line of turnpike road, near to Glentirran Mills, to the old turnpike road about one hundred and fifty-two yards to the eastward of the wester road, leading from the said old road to Musichall the said old road, for the said space of one hundred and fifty-two yards or thereby from the said point of junction, being to be used as the communication from thence to the said wester road to Musichall: And the Justices do therefore order and authorise the petitioner to shut up the said old turnpike road from the east march of the Gargunnock lands to Courthill, and from the farm of Beild to the wester march of the farm of Crowtree, and from Burntown to the wester road leading from the said old road to Musichall; but expressly under this condition and burden, that the part aforesaid, of the said old road, from the point of junction above mentioned (one hundred and fifty-two yards or thereby, to the eastward of the said wester road to Musichall,) unto the said wester road, shall be kept open as part of the road of communication leading from the new turnpike road near Glentirran Mills to the said wester road leading from the old road to Musichall; and decern." That the orders of the Justices were about to be put in force, without complying with the terms of the statute. The suspenders sought interdict against shutting up the turnpike-road, from the head of Glentirran loan to the Musichall road, or any part thereof, until the communication be opened between Glentirran Mills and the wester road. The respondents answered, That the proceedings had been entirely correct, and that the Quarter-Sessions formed the only competent court of appeal under the following clauses of 4th Geo. IV. c. 49, and 8th Geo. IV. c. 96, respectively:

"Provided always, and be it further enacted, that any person' who shall think himself or herself aggrieved by any proceedings to be had before any justice or justices of the peace in the execution of this act, for which no particular relief has been hereby provided, may, within six months after the matter complained of shall be done, but not afterwards, appeal to the justices of the peace, at the Quarter-Sessions of the shire or stewarty where the cause of complaint shall have arisen, the appellant giving fifteen days previous notice of such appeal to the defender or defenders, and to the clerk of the said trustees, and the clerk of the justices of the peace, which justices shall have authority to hear and determine the matter in dispute, and their judgment therein shall be final, without being subject to review by advocation, suspension, reduction, or otherwise." "And be it further enacted, that the said recited act of the fourth year of the reign of his present Majesty, and all and every the powers, exemp tions, penalties, forfeitures, payments, remedies, matters, and things therein contained, save and except such parts thereof as are expressly varied, altered, or repealed by this act, shall be as good, valid, and effectual for carrying this act into execution as if the same had been repeated and re-enacted on the body of this act."

"The Lord Ordinary (20th August 1830,) having advised this bill, with answers, passes the bill, but recals the interdict.Note.-The Lord Ordinary thinks that the suspenders are entitled to have an opportunity of proving their averment that the statute has been violated; but he is satisfied that, in the mean time, they can suffer no inconvenience by the recal of the interdict."

In consequence of this, a second bill of suspension was presented, under the idea that the recal of the

interdict was a virtual refusal of the bill. To this, also, answers were given in, in which it was pleadedThat the suspenders did not allege any intention on the part of the respondents to do any thing in their own names: That no excess of power on the part of the Justices was alleged: That there was no prayer for suspension of their decree: That none such was competent, as the Justices had not exceeded their jurisdiction: That, even supposing it competent to apply to the Court of Session, there must be an intermediate appeal to the Quarter-Sessions: That there was nothing in the act to prevent part of the old road from forming part of the new communication, or to require imperatively the shutting up of the old road; and that the road offered was sufficient

"The Lord Ordinary (24th September 1830,) having considered this bill, answers and productions, appoints the bill and answers to be printed, and boxed on the first sederunt day in November next, in order that the case may be reported to the Second Division of the Court, and continues the interdict un-.. til the bill and answers come to be advised.-Note.-Considering the clauses of the statute founded upon by the respondents,. the Lord Ordinary thinks the competency of the suspension very questionable; but, as the very same point is raised in the first bill of suspension, passed by a former Lord Ordinary, he has thought it best to pronounce the preceding order, it being arranged by the parties, that the first bill and answers are at the same time to be brought under consideration of the Court." At advising,

The ap

Lord Glenlee thought, that there was no such clear incompetency in the bill as to warrant its refusal. The clause in the general act was to be taken as part of the local act. plication to the Justices did not proceed on the narrative that there was a new road, and that the old one was useless. On the merits the demand of the suspenders, if as represented by the respondents, would be indeed a severe one.

Lord Cringletic thought that the Court might interfere. The Justices had done something not under the Act of Parliament. The suspenders complained of appearing to proceed under the act, and really not doing so. "Another" never could mean "the same" road. The bill should be passed.

Lord Meadowbank agreed with his two brethren. The only difficulty he had, regarded the interdict in the meantime, as it was admitted that a communication existed. The bill had been passed to try the question of competency.

The Lord Justice-Clerk had considerable doubts. The bill should be passed, in regard both to the competency and to the merits. But there should be no order to shut up the old road, The Court passed the bill.

Authority for Suspenders.-8th Geo. IV. c. 96.

Authorities for Respondents.-4th Geo. IV. c. 49. 8 Geo. IV. c. 96. Merry v. Dallas, 29th Nov. 1828; Sh. VII. 90. Craigie v. Mill; Sh. IV. 447; Wilson & Sh. II. 642. Alexander v. Seymour, 2d December 1826.

Second Division.-Lords Ordinary, Pitmilly, Meadowbank," Fullerton. Act. More, Hope.-Alt. M. P. Brown.-Campbell and Mack, W. S., and W. Home, W.S., Agents.-Mr Ferguson, Clerk.

14th December 1830.

No. 101.-JOHN MUNRO, Pursuer, v. JOHN HOGG, Defender, Diligence-Bill-Poinding-Contract-Bona Fides-A creditor having poinded his debtor's furniture, but omitted to report the poinding to the Sheriff; and another creditor having soon after incarcerated the debtor, and obtained from him a disposition omnium bonorum, under the Act of Grace; and having adver◄ tised a sale of the furniture; and the poinding creditor having then come forward and agreed to purchase the furniture from

.

the second creditor, on obtaining an assignation, containing warrandice for house rent and taxes; and having thereafter refused to pay the price, in respect of his previous poinding-Held, that he was bound to pay the price, in terms of the contract; and opinions expressed-I. That the poinding was ineffectual, from not having been duly reported.II. That, by entering into the said contract, and allowing the poinding to remain latent, it was abandoned.-III. That a bill having been granted, and paid before it fell due, with the exception of a small balance, for which a renewed bill was granted; and, during the currency of the renewed bill, the creditor having raised diligence, and executed a poinding upon the old bill-the poinding was null and void.

The pursuer having incarcerated James B. Ford for a debt of £489, the latter, on 15th September 1827, on obtaining the benefit of the Act of Grace, executed a disposition omnium bonorum, in favour of the pursuer, for behoof of his creditors. The pursuer proceeded to inventory Ford's furniture in a house in George Street, and advertised a sale. At the same time (7th April 1828), he addressed a letter to Deuchar and Knox, S.S.C., who acted for Ford's family, intimating the intended sale, and offering the furniture, at a valuation, to any friend of Ford's who might wish to purchase them for him. In answer, Deuchar and Knox (8th April 1828,) wrote the pursuer as follows:

"On behalf of a friend of Mr Ford's, we, as suggested in your letter on the subject, offer to pay you for the furniture in Mr Ford's house in George Street, the price that shall be fixed by two appraisers mutually chosen, one by each, the price to be payable as soon as the assignation by you, as Mr Ford's disponee, is executed, which shall be done at the expense of you and the buyer equally. On receiving your acceptance of this offer we shall fix on the appraiser on our part."

And soon after, Deuchar and Knox, in another letter, informed the pursuer, that the purchaser, for whom they acted, was the defender, Ford's brotherin-law. The pursuer immediately wrote accepting the offer. The furniture was then appraised by two persons mutually named, and valued at £85, 7. 11. Deuchar and Knox then prepared a draft of the assignation to the furniture, to be granted by the pursuer, as Ford's disponee, in favour of the defender. The draft set forth

"the price to be payable as soon as the assignation, &c. should be executed. Therefore, and in consideration of the sum of £85, 7, 11. instantly paid to me, the said John Munro, I, the said John Munro, have sold, assigned, &c. all and whole the said household furniture, &c. belonging to the said J. B. Ford," &c.

The draft further, as originally prepared by Messrs Deuchar and Knox, took the pursuer bound

"to warrant the furniture to the said John Hogg and his foresaids to be free, safe, and sure from all cess, minister's stipend, rent, taxes, and other preferable claims, prior to the date hereof."

In revising the draft, the pursuer, thinking the terms of the warrandice too vague, deleted from the draft the words "other preferable claims," and, with this alteration, returned it to Deuchar and Knox, who, in reply, stated, that they had sent the revised draft to the defender, (Mr Hogg's) agent, and begged to inclose a letter from him, containing the following paragraph:

"The addition of "from Whitsunday 1827 to the," in red ink, with the deletion of the words under them, are, so far as I

am aware at present, what cannot be allowed; but if Mr Ford will make up a state showing the amount of taxes due, or will certify that there is none due, then it will be easy to ascertain whether there will be any deduction from the price of the furniture on this score; but if Mr Munro does not choose to procure such a state, he must, of course, warrant the effects against all such claims, as well as all other preferable claims whatever, as it is only the free proceeds that Mr Hogg can impute pro tanto of his preferable claims."

After some further correspondence between the pursuer and Duchar and Knox, the latter, on 25th April 1828, wrote as follows:

"It is impossible to arrange the terms of the assignation so quickly as you mention. You are aware that the bargain is already completed; and although we see no harm in adopting the draft as altered by you, we cannot, without incurring more responsibility than we wish, extend the assignation without Mr Hogg's concurrence. We shall, we expect, be able to send it before dinner."

And again, on 26th April, thus:

We

"We now send the assignation, together with the draft. shall get it signed by Mr Ford either before or after you do so, and we have written Mr Hogg's agent to send a note of the rent, and to fix a time for settling."

Four days after this (April 30, 1828,) it was intimated to the pursuer that the defender did not mean to pay any thing for the furniture, in respect that he held a preference over it, not only for his rent, as Ford's landlord (which was admitted, and included in the warrandice), but also for £98 odds, the amount of a debt, with expenses, for which he had executed a poinding in July preceding. That poinding was executed under these circumstances:-On 16th May 1826, the defender drew a bill, which was accepted by Ford, for £300, at twelve months. This bill was discounted by the defender at the Commercial Bank, on 27th March 1827; and, during its currency, Ford made partial payments, amounting to £210, leaving a balance of £90 due. On 16th May 1827, three days before it fell due, a renewed bill, for the balance of £90, was granted by Ford to the defender, payable four months after date; and this renewed bill was discounted at the Commercial Bank, on 8th June 1827. In the meantime, the defender having retired the first bill for £300, protested it on 7th July, and on 16th July 1827, raised diligence upon it, and executed a poinding of Ford's effects. This poinding was never reported to the Sheriff, and remained latent till April 1828, when it was brought forward, as above-mentioned, as a set off against the price of the furniture which the defender had bound himself, in terms of the bargain with the pursuer, to pay, upon receiving the foresaid assignation. The pursuer, conceiving that, both from the circumstances in which the poinding was executed, and its latency during the defender's negociation with the pursuer about the furniture, it was ineffectual, raised the present action against the defender for the stipulated price of the furniture, under deduction of the public burdens and house rent. The defender resisted payment, on the grounds-That the furniture was legally attached by his poinding, before the disposition omnium bonorum was granted in favour of the pursuer: That, in his negociation with the pursuer, although he did not expressly mention his poinding, it was still intended to be included in the clause of warrandice, under the term " prefer

able claims." In reply, the pursuer maintained—I. That the poinding was inept and ineffectual, in respect it was executed before the alleged debt was legally due the £90 bill, the only sum alleged to be due, being current at the time; and further, in respect the poinding was not reported to the Sheriff for nine months after execution, nor even yet. II. That, even although it had been a subsisting burden at the time of the negociation between the parties, it was completely waived and passed from by the conduct of the defender in keeping it latent, and entering, at same time, into a bargain with the pursuer to pay over the price to him, on receiving an assignation to it: That even the term "preferable claims" had been finally deleted from the clause of warrandice in the assignation, with the consent of the defender's agents, Deuchar and Knox; and that, from beginning to end of the correspondence, the defender had never once alluded to his alleged poinding. The Lord Ordinary ordered cases, on considering which his Lordship pronounced (17th June 1830,) the following interlocutor and note:

"The Lord Ordinary having considered the mutual revised rases for the parties, and whole process, Decerns against the defender in terms of the libel, and finds the pursuer entitled to expenses; of which allows an account to be given in, and remits the same, when lodged, to the auditor to tax and to report.Note. It is admitted that Deuchar and Knox, in the employment of Ford, the common debtor, and with the knowledge and authority of the defender, made the offer contained in the letter dated 8th April 1828, for the purchase of the furniture in question; and the Lord Ordinary is of opinion, that, from the terms of the offer, as well as from the circumstance of the name of the person offering being concealed, the pursuer was entitled to transact upon the footing and in the belief that, after retaining the amount of those debts for which, by the operation of the law, the subject was avowedly and primarily liable,—namely, the taxes due to the Crown, and the rent due to the proprietor of the tenement in which the furniture was placed, the surplus of the price was to be paid over in money to him for behoof of himself and the other creditors; and that, in point of fact, when the name of the person in whose behalf the offer was made was communicated to the pursuer, he was aware that the defender, as proprietor of the said tenement, had a preferable right of hypothec for the amount of the rent thereof, and that the same was then due; but that it does not appear, and is not alleged, that the pursuer was at that time actually in the knowledge of any other right or claim of a preferable kind which the defender had or was entitled to maintain to or over the said subject. In these circumstances, the Lord Ordinary thinks it was particularly incumbent upon the defender, and upon the agents acting under his authority, and for whose proceedings he is responsible, in the first instance, and on communicating that he was the person in whose behalf the offer aforesaid was tendered, to have stated, in explicit terms, the claim of preference in virtue of his alleged poinding, on which it is now averred the defender had it always in contemplation to insist; and that this obligation was rendered still more imperative by the delay which is admitted to - have taken place in following out the diligence on which he intended to rest, and when the corrections made upon the terms of the assignation clearly demonstrated the ignorance under which the pursuer laboured of any such grounds of preference being in existence. It must therefore be held that the defender, either from want of reliance upon the validity of the diligence aforesaid, or from considerations arising from his wish to grant accommodation to the common debtor, with whom, it appears, he was connected, or otherwise, entered into the transaction in question upon the implied condition of only insisting upon his preference over the price of the furniture to the extent of the rent of the tenement in which it was placed."

The defender having reclaimed,

Lord Balgray said, that he concurred with the Lord Ordinary. The law of this country set its face against deception, and would never assist a party in an attempt at unfair advantage. The pursuer here had a clear and legal title to the furniture, by his disposition omnium bonorum. When taking possession, and about to sell the goods, and apparently in ignorance of any preferable claims upon them, except the landlord's hypothec and the writ of the Crown, he was stopped by this offer of the defender. This offer was contained in the letter by Deuchar and Knox, of 8th April 1828, in which there was an unqualified offer to pay the price on receiving an assignation, and not one word about a poinding or preferable claims of any kind. The offer was accepted, and then came some communing about the pursuer warranting out of the price payment of the house-rent and taxes, and a vague allusion to preferable claims, but nothing about the poinding which the defender had in his pocket all this time. He was bound to have instantly communicated this burden, if he meant to abide by it; but, on the contrary, he concealed it, and the bargain was closed by the letters of 25th and 26th April, wherein the defender's agents expressly consented to the deletion of the terms "preferable claims," clearly giving the pursuer to understand that the defender had none. It was impossible to countenance such deceitful, or almost fraudulent conduct. Then, as to the poinding, it was not worth a farthing, being executed while the bill for £90 (the only debt due) was current. Nor was it reported to the Sheriff in due time, as required by the statute. In every view, whether considered as a case of gross deception, or of irregular diligence, it was impossible to sustain the defence.

Lord Gillies concurred, and would even go farther- Esto, that there was a poinding,-the defender clearly abandoned it, both in his negociation with the pursuer, and by not reporting it. Suppose the pursuer had sold the goods with the defender's consent, could he have afterwards reared up this lien against the purchaser ?

The Court adhered.

Pursuer's Authorities.-Leas v. Landale, 16th Jan. 1828; Fac. Coll. Finlayson v. Russell, 4th June 1829; S. and D. 56 Geo. III. c. 137. sec. 4. Tullis v. White, 18th June 1817. Samson v. M'Cubbin, 15th May 1822.

First Division.-Lord Ordinary, Meadowbank.-Act. Skene, Neaves.-Alt. Lord Advocate (Jeffrey), Moir.-A. Hutcheson. Pursuer's Agent.-John Wight, W.S. Defender's Agent. -Sir W. Scott, Clerk.

14th December 1830.

No. 102.-FRASER'S TRUSTEES, Pursuers, v. ALEXANDER FRASER, Defender.

Foreign-Principal and Agent-Statute of Limitations-A Scotsman having employed an English Solicitor (born, and having property in Scotland, but domiciled in England,) to recover, in the English Courts, a debt due by an Englishman; and the creditor's representatives having, at the distance of 10 years, sued the English Solicitor for the debt (which he admitted having recovered-Held that the claim was barred by the English Statute of Limitations.

The late Captain Fraser of Brightmony, by trustdisposition and settlement, dated 12th October 1810, conveyed to the pursuers, and the acceptors and survivors of them, and their assignees, the whole property, heritable and moveable, then belonging to him, or which should pertain and belong to him at the time of his death. He likewise appointed them his executors, and conferred on them full powers to recover and realise his funds, and to apply the proceeds in payment of the debts, legacies, and provisions therein particularly specified. Captain Fraser died on 29th January 1814, and the pursuers immediately. entered on the trust, and appointed Mr Cosmo Falconer, writer in Edinburgh, their factor, to realise the

outstanding debts, &c. Prior to Captain Fraser's death, he had instructed the defender (an English attorney, resident in London,) to recover a debt of £300, with interest from 1780, from a Mr Cumming resident near London, and the defender accordingly instituted proceedings in the English Courts, and recovered the whole about the 11th April 1814. The pursuers raised the present action (13th February 1826) against the defender, for payment of the debt thus recovered by him. The defender maintained, in limine,-I. That, being an attorney, domiciled for 40 years in England, and the cause of action arising in England, being the recovery in an English Court, by a party domiciled in England, of money secured by an English bond, and due by a person domiciled in England, he (the defender) was not liable to the jurisdiction of this Court. The pursuers maintained,That the defender was liable to the jurisdiction of the Scots Courts, in respect,-I. He was a Scotsman by birth, and possessed heritable property in Scotland.II. That the pursuers had, at all events, subjected him to the jurisdiction of this Court, by arrestments used in the hands of his (the defender's) debtors in Scotland, jurisdictionis fundanda causa, and thereafter, addi tional arrestments on the dependence. The Court (25th May 1826,) repelled the preliminary plea; on which the defender further pleaded,-I. That the action was cut off by the English Statute of Limitations; the cause of action having occurred in 1814, and the action being raised only in 1826.-II. That the pursuers had no right of action on this debt, in respect the testator (Captain Fraser) in a letter to his daughter, Mrs Fraser of Leadclune (produced), containing the following paragraph, directed the money, when recovered, to be paid to her daughters, which the defender accordingly did :

"PERTH, 12th January 1814.-My Dear Daughter, I have received your's of the 5th current. I have only to inform you that I am in as good health as I could reasonably expect. I forgive you with all my heart; and did you but know what I have laid out on your daughter and daughters, you would not ask me for any more. As to Cumming's money, I am willing to give Lincoln every necessary power to recover and lodge that money for the benefit of your daughters. Cumming is an old man; if trouble will attend the recovery of it, the fault is not

mine."

III. That the defender having paid over this money to the testator's grandchildren bona fide, cannot be liable in double payment. After the opinion of English counsel had been taken, which held the claim to be prescribed, the Lord Ordinary (24th January 1830,) sustained the defence founded on the English statute of limitations, assoilzied the defender from the conclusions of the action, and found the pursuers liable in expenses. The pursuers having reclaimed, the Court, before answer, ordered cases on the application of the English statute; and on considering them,

Lord Balgray thought Mr Fraser's defence a good one, and the case an important one. Mr Fraser was called to account as a person domiciled in England, and the law of England was found to apply, and of course the statute of limitations. The arrestments, ad fundandam jurisdictionem, could not affect the question of domicile.

Lord Gillies concurred, and also thought that Mr Fraser had acted with perfect bona fides.

The Court adhered. Pursuers' Authorities.-Sande, I. 12. Huber, 1. 3. 7. ; Ersk, III. 7. 48. Kames's Prin. III. 8. 568. Thomson; Mor. 4504. Rutherford; Mor. 4505. Renton's Trustees; Mor. 4516. Randall; Mor. 4520. Ker; Mor. 4522. Barret; Mor. 4524. Countess of Haddington, 6th March 1821; Fac. Col. Broughton, 24th February 1826.

Defender's Authorities.- Rickman, 24th May 1827. Grove; Mor. 4501. Lord Lovat; Mor. 4512. Macneil; Mor. 4517. Hailes, p. 225. York Buildings Co.; Mor. 4528. Delvalle; Mor. 4525. Campbell, 5th June 1818. Dow, VI. p. 116. Ersk. III. 2. 40. & III. 4. 7. Glyn and Co. v. Johnston, 8th June 1830. Gordon, 12th November 1818; Fac. Coll. Fortune, 19th January 1610. Galbraith, 15th November 1626. Hyde, 7th February 1634. Worde, 5th January 1650, Chatto, 10th January 1702. Daikell, 18th February 1675, &c. &c.

First Division.-Lord Ordinary, Meadowbank.-Act. Buchanan, Ad. Anderson.-Alt. Hope, Ivory.-J. Shand, W. S., and Tho. Mackenzie, W. S., Agents.-Mr Hamilton, Clerk. 14th December 1830.

No. 103. FRASER'S TRUSTEES, Pursuers, v. COSMO FALCONER, Defender.

Assignation-Bona fides-Opinion expressed, that a letter by a father to a child, expressing his willingness to pay her, for her children's behoof, a sum of money due by another, was a suffi cient assignation of the debt, and exonerated the factor, employed by the father's trustees to recover the outstanding debts, for not pursuing the debtor, who, by virtue of this letter, had paid to the child.

This was an action brought upon the same species facti as the preceding, and concluded that the defender should be bound to relieve the pursuers of the preceding action, raised against Alexander Fraser, solicitor in London, and also to pay the sums concluded for against him, if his defence should be sustained. The present action was founded upon a commission and factory, executed by the pursuers in August 1814, in favour of the defender, empowering him to sue for and uplift all debts, &c. belonging to the trust-estate of Captain Fraser, under the pursuers' management, and narrated that the defender had neglected to pursue Mr Fraser, solicitor in London, for the debt (due by Cumming) recovered by him. The defender pleaded, inter alia, That the testator's (Captain Fraser) letter to his daughter, of 12th January 1814, was a complete assignation of the debt to his grandchildren; and that the factor was not bound to sue Mr Fraser, solicitor, for a debt which he had properly disposed of by the testator's direction. Lord Gillies thought the letter a sufficient assignation. The Court assoilzied the defender. Counsel and Agents, ut supra.

14th December 1830.

No. 104.-CLAUD GIRDWOOD & Co. Suspenders, v. JOHN CAMPBELL, Esq., Charger.

Clause-Construction-Harbour Dues-Private Statute-Circumstances in which it was held that a private statule, conferring a power to levy harbour-dues, was not invalidated by long disuse, nor by the absence of evidence of provisions of the statute having been complied with by the proprietor of the dues.

The suspenders brought the present suspension in order to try the right of the charger, Mr Campbell of Stonefield, to levy a duty at the rate of a halfpenny per ton on their steam-boat, named the Maid of Isla, on each occasion of her entry into the harbour of East

Tarbert. The charger's author, Macallester of Tarbert, obtained, in 1708, a private Act of Parliament, containing the following clauses :

"Whereas there may be a necessary and convenient harbour or key made at East Tarbert, in the shire of Argyll, for ships, hoys, vessels, barks, or boats, used in the fishing trade, and other vessels and boats to anchor in. Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, that it shall and may be lawful to and for Archibald Macallaster, Esq. (proprietor of the soyle of East Tarbert aforesaid,) his heirs and assigns, to erect and make, or cause to be erected and made, a harbour or key in East Tarbert, aforesaid, to extend from the point of Garvall on the north, to the Oakenhead to the south, and such wharfs and buildings as shall be thought necessary by the three next Justices of the Peace to the said East Tarbert, the Sheriff-principal of the shire, and the said Archibald Macallaster, his heirs and assigns, or any three of them, the said Archibald Macallaster, his heirs or assigns, to be always one, for the anchoring of all ships, vessels, barks, hoys, and boats, which shall come into the same, and for the landing and laying any fish, or other goods and merchandizes, as shall be brought in or discharged there: And be it farther enacted, that for the making, and from time to time, keeping in good and sufficient repair the said harbour and key, and wharfs thereunto belonging, it shall and may be lawful for the said Archibald Macallaster, his heirs and assigns, or such person or persons as he or they shall authorise and empower, from and after the five-and-twentieth day of March, which shall be in the year of our Lord, one thousand seven hundred and eight, to ask, demand, take, and receive, of and from all and every person and persons, master or masters, of any ship, vessel, bark, hoy, or boat which shall come into, and anchor within the extent of the said harbour or key; and that all and every such master and masters, of any ship, vessel, bark, hoy, or boat, do pay the respective summe and summes of money hereinafter mentioned: That is to say, for every ship, vessel, bark, hoy or boat, the summe of one halfpenny per ton, and for every ship, vessel, bark, hoy or boat under eight tons, the sum of fifteen pence per annum, upon their first anchoring, the said respective sums to be of lawful money of Great Britain," &c.

A subsequent clause directed the sums so collected to be expended in preserving, amending and maintaining the said harbour of East Tarbert. Under this statute, the charger maintained, that he was entitled to demand a halfpenny per ton on the Maid of Isla, every time she entered the harbour; while the suspenders maintained, inter alia.-I. That the statute founded on, had been prescribed, by disuse, for upwards of 60 years after it was enacted.-II. That it did not authorise any dues to be levied until a plan of the works, to be erected and maintained by means of them, had been approved of by three Justices, and the Sheriff of the county, which proceeding had never taken place; and III. That, at all events, the rate leviable was not a halfpenny per ton every time the vessel entered the harbour, but only a halfpenny per ton in the year. In answer, it was maintained-I. That dues were levied by the charger's great-grandfather and grandfather, from 1774 downwards: That these dues were regularly farmed out to tacksmen: That although there may have occurred occasional intermissions in the collection of them since 1774, the right was never disputed till the present action was raised; and although there was no proof of any having been collected previous to 1774, that might have arisen from the embarrassed state of Macallester's affairs; and, from the remoteness of the period, it was impossible to prove whether

they had been collected then or not.-II. That the Act does not require any plan of the work to be submitted to the Justices and Sheriff, but only their approval of such as should be necessary; and as no formal evidence of the approval is directed to be preserved, it must be presumed, at this distance of time, that the requisite approval was obtained.-III. That the meaning of the Act, as shewn by what has followed on it for 50 years, evidently is, that a halfpenny per ton is chargeable on every vessel above eight tons every time she enters the harbour. The Lord Ordinary (11th March 1829),

"In respect the clause in the Act of Parliament, with regard to the amount of the duties in question, is ambiguously expressed, and may competently be explained by usage, and that various aged witnesses have been already examined on that subject by the authority of the Court; allows both parties a proof of their respective averments, as to the possession had by the respondent and his predecessors, of levying the said duties."

And cases having been ordered on the import of the proof, the Lord Ordinary (15th June 1830,) pronounced this interlocutor:

"The Lord Ordinary having considered the revised cases for the parties, proof adduced, and whole process; Finds the letters orderly proceeded, and decerns: Finds the suspenders liable in expenses, and remits the account, when lodged, to the auditor to be taxed."

The suspenders having reclaimed, the Court unanimously adhered.

First Division.-Lord Ordinary, Corehouse.-Act. Skene, Pyper.-All. Hope, Colquhoun.-Macmillan and Grant, W.S. Suspenders' Agents.- Archibald Connell, W.S., Charger's Agent.-Sir W. Scott, Clerk.

14th December 1830.

No. 105.-J. G. STEWART, ADAM STEWART, & MRS E. GOVAN or SMITH, Claimants & Advocators.

Destination-Substitute-Under a destination to a nephew, and the heirs of his body, "whom failing before me," to his younger brother, and the heirs of his body, "whom also failing before me," "whom all to his youngest brother, and the heirs of his body, failing," to the heirs whomsoever of the framer-the brothers being elsewhere in the deed called substitutes; the institute having succeeded, and died without issue and without infeftment— Held, that the younger brother excludes the heirs whomsoever of the framer, and the heir of conquest of the eldest brother.

This competition of brieves, which the Lord Ordinary reported on cases to the Court, arose out of a disposition and deed of settlement, executed in April 1820, by Miss Agnes Govan, to whom, as heir-portioner of the deceased William Govan, along with three of her sisters, and Horsburgh, the son of a fourth, the intestate succession of that individual came in 1819. The property was amicably divided. The testatrix got, as her fifth share, the lands of Hawkshaw. Christian Govan, one of the other sisters, settled her portion chiefly on the claimant, her nephew, John Govan Stewart, and died in 1823. Agnes Govan executed the settlement above-mentioned, in the following terms:

"I, Agnes Govan, residing in Edinburgh, do, by these presents, give, grant, and dispone, to and in favour of William Stewart, my nephew, second son procreate of the marriage betwixt my sister Margaret Govan, otherwise Stewart, and the deceased William Stewart, brushmaker in Edinburgh, and the heirs of his body; whom failing before me, then to Adam Stew..