art, his immediate younger brother, and the heirs of his body; whom also failing before me, then to Andrew Stewart his youngest brother, and the heirs of his body; whom all failing, then to my own nearest heirs and assignees whomsoever, heritably and irredeemably, but with and under the burdens, provisions, and reservations after-mentioned, All and Whole the lands of Hawkshaw, Glengonar, Carterhope, and Fingland: As also, all and sundry other lands and heritages, and all debts and sums of money, heritable and moveable, crop, stocking, furniture, books, silver plate, bank-notes, money, and in general all my goods, means and estate : But declaring always, that the said William Stewart, and the heirs of his body, whom failing as aforesaid, the said Adam Stewart, and the other substitutes before mentioned, shall be bound and obliged, as by acceptation hereof they bind and oblige themselves, and their foresaids, out of the first and readiest of the estate and effects hereby disponed, to pay all my just and lawful debts, with my funeral charges, and any gifts or legacies which I may think proper to leave, and particularly the gifts and legacies following:-To John Govan Stewart, merchant in Edinburgh, brother of the said William Stewart, the sum of £500 Sterling; to the said Adam Stewart, the sum of £1000 Sterling; to the said Andrew Stewart, the like sum of £1000 Sterling; to Christian Smith, otherwise Marshall, my niece, spouse of the Reverend William Marshall, minister of the parish of Manor in the county of Peebles, the sum of £500 Sterling; to John Horsburgh, baker in Edinburgh, my nephew, the sum of £200 Sterling; all these sums to be paid to the several persons above named, at the first term of Whitsunday or Martinmas that shall happen six months after my death, with interest thereon during the not-payment of the same: And further, I appoint the said William Stewart, and the heirs of his body, whom failing as aforesaid, the said Adam Stewart, and the other substitutes above mentioned, to make payment to Alexander Horsburgh, residing in Peebles, brother of the said John Horsburgh, of a free yearly annuity of £15 Sterling, and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas that shall happen six months after my death, and so on thereafter during the whole years of his life: And further, for carrying these presents more effectually into execution, I hereby nominate and appoint the said William Stewart, and the heirs of his body, whom failing as aforesaid, the said Adam Stewart, and the other substitutes above-mentioned, to be my executors and intromitters with my moveable estate, with power to them to expede confirmations and make up all other titles that may be necessary. In which lands and others above described, I bind and oblige myself, my heirs and successors, duly and validly to infeft and scise the said William Stewart, and the heirs of his body, whom failing as aforesaid, the said Adam Stewart, and the other substitutes above-mentioned."

The testatrix died in 1824, survived by her nephew, William Stewart, named in the deed, who paid the legacies, &c. and possessed under the deed, without infeftment, till his death (unmarried) in July 1829— on which event the competition arose among these parties, viz.-1st, J. G. Stewart, brother of William Stewart, and son of a female heir-portioner,-2d, Adam Stewart, his younger brother; and 3d, Mrs E. Smith and Mrs W. Stewart, sisters, and John Horsburgh, nearest heirs whatsoever, (the husband of Mrs Stewart having predeceased the date of the settlement.)

J. G. Stewart pleaded-That William Stewart was constituted the immediate institute, so as to oblige the person taking up the property to carry the personal right in him, by serving heir to him: That the destination to all the substitutes, after the heirs of his body, was qualified and conditional on those previously called failing during the life of the testatrix, which condition had never been purified; and so that the succession to the property, as conquest in Wil

liam, devolved on the claimant as heir of conquest and also heir of provision: That the deed did not indicate any desire to entail the property. Adam Stewart pleaded-That an heir of conquest could never take under the deed, which made no reference whatever to him: That the words "before me," were never meant to exclude the claimant, as substitute to the heirs of the body of William Stewart; and that the heirs whatsoever could not come in during the life of any nominate substitute, or without a variation in their own construction of the word "failing." The other individuals claiming as nearest heirs whatsoever of the testatrix under the disposition, pleaded-That as William had died without heirs-as Adam and Andrew had been called conditionally-as the condition of their nomination had failed-the claimants should come in as if such nomination had never been made : That the claim for Adam Stewart was contrary to the reading and construction of the deed: That, without any special substitution, they would have excluded the heir of the grantee; and that, by express substitution, they excluded the heir of the institute.

The Lord Ordinary (12th November 1830), on making avizandum to the Court, added to his interlocutor the following

The

"Note. This is a very singular case. The Lord Ordinary, notwithstanding the ability of the argument for the heir of conquest, would have no difficulty in coming to an opinion that his claim cannot be maintained. In point of mere form, a service as heir of provision might perhaps be competent, if the right were made out. But he thinks it clear, that unless Adam Stewart is entitled to succeed as a prior substitute, the express destination to the heirs whatsoever of the testatrix must take effect. The question between Adam Stewart and the granter's heirs whatsoever is much nicer. The Lord Ordinary is not able to adopt the construction of the clause maintained for Adam Stewart, that the words whom failing before me' apply only to the heirs of the body of William Stewart; because, in this view, there would be no words of substitution or institution to connect Adam with the failure of William; and the idea is too whimsical at any rate. But still he has the greatest possible difficulty in thinking, that it was the meaning of the testatrix, in this deed, to prefer her own heirs whatsoever to Adam and Andrew Stewarts, in the event of William surviving her, when she distinctly gave the estate to them, in the case of William and the heirs of his body failing before her own death. idea may be consistent in a legal argument, but it is in the highest degree improbable in regard to the actual intention of the party; and, looking to the whole deed, the Lord Ordinary cannot, in a legal view, reconcile the constant description of Ådam, &c. as substitute heirs, with the plea of the heirs whatsoever. For he holds it to be clear, that, in their construction of the clause, Adam is not in any sense a substitute, but purely a conditional institute, who, if William had predeceased the testatrix, would have taken as institute, without any service to William. The cases of Peacock and Colquhoun do not touch this, because in them there was a substitution whether the party predeceased or survived. Whether, even in such a case, the service to a first institute predeceasing the maker is necessary, the Lord Ordinary must think doubtful, when he reflects on the discussions in the case of Seaforth. But the clause in the present case cannot be construed in the way maintained by the heirs whatsoever, without putting it out of all doubt that Adam is called purely as a conditional institute, and, consequently, that the description of him as a substitute is incongruous with this construction of the clause. On the whole, notwithstanding the difficulty in the words, the Lord Ordinary, looking to the whole scope of the deed, and nothing else, is strongly inclined to think that the true meaning of it is in favour of the claim of Adam Stewart. But

the case is so doubtful and peculiar, that he thinks it proper to report it without a judgment."

At advising,

It

Lord Cringletie had come to a conclusion precisely opposite to that of the Lord Ordinary. It did not appear that Adam must have served to William. "Before me" made him a conditional institute. The destination ended with William's children. could not be said that it was not the intention of the testatrix to leave William and his heirs at perfect liberty, if they survived. Adam could not shew that the condition under which he was called had come to pass. The entail was at an end.

Lord Glenlee thought with the Lord Ordinary. There might be circumstances in which a party might obtain a decree entitling him to serve, although, er figura verborum, it might be impossible for any jury to serve him. The deed in question was to all intents an entail, without irritant and resolutive clauses. In one view, every substitute was no more than a conditional institute. But in tailzieing, the presumption was, that the party named was a substitute, without any condition but that those previously named shall have failed. The operation of willing might be resumed in the sequel of the deed, to the effect of making a conditional institute. But such act must be express. There was no provision in the deed to the heir of conquest.

Lord Meadowbank saw that the question was not, Whether there had been an effectual conveyance of the estate? but who was called to the succession? To these two questions, two opposite rules of construction were applicable. In the former, all inquiry into intention was out of the question. In the latter, the voluntas was always to be considered. No particular clause of the deed was to be exclusively considered, unless in so far as it was technical or perfectly explicit. Every word and clause should, if possible, receive a meaning, and a meaning consistent with the rest. These principles guided the great Roxburgh question. Nay, a prior deed was there taken to explain a subsequent one. It would require very express words, indeed, to exclude the second and third nephews, and the heirs whatsoever, in favour of the heir of conquest of the eldest nephew, the heirs of whose body had been named with the rest. As to the remaining question between the nephew Adam and the heirs whatsoever, the Lord Ordinary was right in his interpretation, which seemed the fair one, although the view, designated by him as whimsical, appeared by no means so. The heirs of the body of William Stewart must have served to him, had he died. Then the "and" meant "whom failing," so that "whom failing before me" applied to the heirs of William's body; and, failing the life of Miss Govan, carried the estate to Adam, the second nominate substitute. The heirs whatsoever were obliged to resort to contradictory interpretations-in one case understanding "failing" to mean, dying-in the other, understanding it to mean ceasing to be capable of taking. And, even admitting that double interpretation, these heirs could not apply the second interpretation to all alike, without affecting themselves.

The Lord Justice-Clerk thought the case one of considerable nicety, but agreed with the Lord Ordinary. No clear technical terms could be here pointed out. The meaning of the words must be gathered from the instrument. The claim countenanced by Lord Cringletie was clearly unfounded. The heir of the body of William Stewart must have made up titles to him; and, had he done so, the successor of the heir of conquest would have been an alteration of the order of succession. Lord Meadowbank's construction appeared the proper one as to the other competition. It was not at all whimsical. The meaning which it put upon the deed was the only reconcileable one. A woman so old as the testatrix could never have contemplated the possibility of all those named predeceasing her. Adam was expressly called a substitute in the subsequent clauses of the deed. The parties named had not failed.

The Court

"Find, that Adam Stewart is entitled to be served nearest and lawful heir of provision of William Stewart; and, in terms of the Act of Parliament, the 1st and 2d Geo. IV., cap. 38, Remit to the junior permanent Lord Ordinary to proceed in the service of the said Adam Stewart, and to dismiss the brieves

for the said John Govan Stewart, and Elizabeth and Margaret Govans, and John Horsburgh."

Authorities for J. G. Stewart-Bell v. Carruthers, 21st June 1749; Kilk. p. 513. Kames, No. 107. Peacock, 22d June 1826. Colquhoun, December 16, 1828; Stair, III. 5, 50. Mackenzie v. Mountstewart; Fount. 13th December 1709. Authorities for Adam Stewart.-Peacock v. Glen, 22d June 1826. Colquhoun v. Colquhoun, 16th December 1828.

Authorities for Mrs Smith, &c.-Lib. I. Feud. 20, II. 11; Craig, II. 17, 11; Ersk. II. 3, 4. Little, 25th June 1759; Colville, Spottiswood's Practics voce Feu; Stair, III. 3, 47. Thomson, 28th November 1750; Kilk. Tack, No. 10. Dirleton voce Limitation; Stewart, Mack. Inst. III. 10. Tennant v. Tennant, July 1688; Forbes, Inst. Duke of Hamilton, 1762; M. 4375-6. Leslie, 1710; M. 15,358. Earl of March, 1760; M. 15,412. Hay, 1772; M. 15,429. Fleming, 1804; M. 15,559. Magistrates of Montrose, Nov. 21, 1738. Wilson v. Baillie, June 4, 1822.

Second Division.--Lord Ordinary, Moncreiff.- - Counsel, Lord Advocate (Jeffrey), Solicitor-General (Cockburn), W. Baird, Keay, More, Gr. Bell.-R. Rutherfurd, W.S., Wm. Young, W.S., and Walter Horsburgh, W.S., Agents.-Mr Rolland, Clerk.

OUTER HOUSE.

1st December 1830.

No. 106.-HUNTER v, M'AULAY.

Process-Advocation, Competency of-Found, that an advocation of an action, involving the right to, and possession of certain poinded effects, was competent, though the value at which they were apprised only amounted to £6, 4. 7.

Hunter was under the necessity of sequestrating and selling part of the household furniture belonging to his tenant, Crawford, for payment of arrears of rent. Crawford was also due Hunter £14, 1s. on open account, in payment of which he purchased the furniture that remained after satisfying the rent, the price of which was to be fixed by two respectable men. Immediately on the conclusion of the sale of the sequestrated effects, Douglas, a sheriff-officer and auctioneer, who was employed on the occasion, poinded a part of those unsold at the instance of M'Aulay, for a balance of £6, 4. 7, contained in a decree obtained before the Sheriff Small Debt Court. A warrant of sale was then applied for, when Hunter presented an application to the Sheriff (Dumbartonshire) for an interdict against the sale, on the ground that the effects belonged to him, and that the poinding was illegal and inept. After considerable procedure, and a long proof, the Sheriff recalled the interdict, and preferred M'Aulay in the competition. Hunter advocated, and at the same time brought a reduction of the poinding. M'Aulay objected and pleaded-That the advocation was incompetent, as the cause in which it was brought related to a sum below £12. Answered, 1st, The real value of the effects was above £12, though appraised only at £6, 4. 7. 2d, The act referred to did not apply, as the action involved a question of right to, and possession of the effects. All questions of right or possession must be subject to review, whatever might be the pecuniary amount in dispute between the parties.-The Lord Ordinary repelled the objection to the competency of this advocation, and conjoined it with the reduction.

Lord Ordinary, Moncreiff.-Act. J. Russel.-Alt. R. Thomson.-Edward M Millan, S. S. C., & R. & A. Kennedy, W. S., Agents.

2d December 1830.

No. 107. CRAIG & SIMPSON, Advocators, v. J. & D. Ro-
BERTSON, Respondents.
Process-Record-Reference to Oath-It is incompetent to re-
fer to oath an averment not stated on record.

The respondents pursued the advocators before the Magistrates of Glasgow, for the price of certain articles of furniture. Defence-The purchase was part of a transaction, by which the respondents sub-set to the advocators certain premises for a term of years; but it turned out that the respondents had only a lease for one year, and consequently, the advocators were obliged to take the premises, of new, from the landlord, at an increased rent, whereby a claim of damages arose to them, which they pleaded in compensation of the price. The Magistrates found it not proved that the respondents warranted a lease for more than one year, and decerned for the price of the furniture. In an advocation the respondents pleadedThat, esto, they had guaranteed a lease for more than one year-they were relieved of their responsibility by the new transaction between the advocator and the Jandlord, to which they were not made parties. The Lord Ordinary, while he differed from the Magistrates as to the import of the proof, and therefore advocated the cause, sustained this latter plea, and decerned.

The advocators then offered to refer to the oath of the respondents, that intimation was made to them previous to entering into the transaction with the landlord. Answered, There is no such averment on the record. Replied, The plea sustained was stated for the first time in this Court, and the advocators are entitled to elide it. The Lord Ordinary found the reference to oath incompetent.

Lord Ordinary, Newton.-Act. Neaves.-Alt. Deas.

14th December 1830.

No. 108.-ANDERSON, &c. Advocators, v. GLEN, &c., Respondents.

Process Advocation-Competency of—It having been found in the Inferior Court, that prescription was interrupted, “ unless the defenders" could “instruct” a certain fact-Held that this was, in substance, allowing a proof; and that advocation from such a judgment was competent.

The respondents, as executors of the deceased William Glen, raised an action against the advocators, before the Sheriff of Ayrshire, for payment of £205, contained in a bill granted by them to the said William Glen. The pleas urged in defence were,— I. Prescription; and II. That the debt had been extinguished by Glen's accepting a composition. After a variety of procedure, the Sheriff found that there was produced

"sufficient evidence to interrupt prescription, unless the defenders can instruct that the deceased William Glen acceded to the defenders' offer of composition, and received payment of the composition offered by them."

The Sheriff-Depute adhered, and allowed the defenders to advocate. When the case came before the Lord Ordinary, the respondents Objected-This ad

vocation is incompetent, in respect that it is from an interlocutory judgment, and does not set forth, in terms of 50 Geo. III. c. 112, sects. 36 and 39, that it is founded on "incompetency, contingency," or "objection to the mode of proof." The reservation in the Sheriff's interlocutor, "unless the defenders can instruct," &c. shews that the cause was not exhausted. Answered,-The Sheriff laid on the advocators the burden of a proof, which was unnecessary, objectionable, and irrelevant, in respect that the bill was prescribed, and documents produced to shew Glen's acceptance of the composition offered. It was therefore competent to advocate under the 50th Geo 111. c. 112, sec. 39, or in terms of the 40th sec. of 6 Geo. IV. c. 120, as being a jury question.

The Lord Ordinary was of opinion that the advocation was competent; though the interlocutor was not very accurately expressed, still the Sheriff had, in substance, allowed a proof. His Lordship repelled the objection.

Advocators' Authorities.-Thomson v. Milton, 28th May 1822; Shaw, I. p. 478, and Alexander v. M'Leay, 10th February 1826; Shaw, IV. p. 439, and Cases there quoted.

Lord Ordinary, Mackenzie.-Act. Cuninghame.-Alt. Gordon.-Agents, Adam & Brown, and William Douglas.-B. Clerk.

16th December 1830.

No. 109.-CLYNE v. CARNABY. Process Summons, Vagueness of-A pursuer having libelled on accounts said to be incurred, inter alia, upon "guarantee and special engagement"-Held, that the Summons was inexplicit, in respect that the nature of the engagement and guarantee was not set forth.

In this case, Clyne, the pursuer, raised a summons against the defender, concluding for payment of £86, 7s., as an alleged

"balance, due by him to the pursuer, upon a general account for law disbursements and charges, advanced and incurred by the pursuer for the defender and his brother, the late Benjamin Carnaby, master of the sloop Joseph and Sons, of Thurso, upon the employment, instructions, guarantee, and special engagement of the defender," &c.

Objected-The summons, as laid, is vague and evasive, and does not, as required by the Judicature Act, set forth, in explicit terms, the nature, extent, and grounds of action, the nature of the pretended employment, the tenor of the instructions, and the extent of the guarantee, are not stated. His Lordship, after hearing parties on the summons and defences, pronounced this interlocutor:

"Sustains the dilatory defences, in so far as regards the account pursued for, as founded upon guarantee and special engagement," &c.

Lord Ordinary, Mackenzie.-Act. Boswell.-All. Cuninghame.-B. Clerk.

18th December 1830.

No. 110.-M DONELL, Pursuer, v. THE BANK OF SCOTLAND, Defenders.

Process-Summons-- Amendment of-- Reduction-- Reduction-Improbation-Competency of-A party having raised, first, a Summons of Reduction of certain documents, and then, with the concourse of the Lord Advocate, an action of Reduction-Improbation of the same, on the head of forgery, in which the conclusions of the former action were repeated without the special one, that the said documents should be improven as forged, &c.-Held that it was competent for the two actions to go on together; and amendment of

the libel in the latter ordered, as far as regarded the special conclusion on the head of forgery.

On the 17th December 1829, the defenders were called by the pursuer, in an action of reduction and damages, in which production of certain documents was ordered, and satisfied. Defences on the merits were then given in, and condescendences and pleas in law were ordered. In this situation of matters, the pursuer, having obtained the Lord Advocate's concourse, raised another summons, entitled a summons of reduction, improbation and damages. This latter summons contained the same reasons of reduction as the former, with this additional one, that the signature of a witness to one of the documents was forged and fabricated. The will called on the defenders to bring with them the documents, and to hear and see the same improven as false and forged, &c. But the summons contained no conclusion that these documents should be improven as false and forged, &c. and the users and devisers punished, &c., the conclusions being precisely the same as those in the former action. To the second action the defenders lodged preliminary defences, and refused to satisfy the production, maintaining that the summons was incompetent, and should therefore be dismissed-I. In respect of lis alibi pendens. A defender is not bound to defend himself against double claims for damages, at the instance of the same pursuer, and relative to the same transaction.-II. An action of reduction-improbation, to which the concourse of the Lord Advocate has been obtained, must contain a special conclusion, that the documents alleged to be forged should be" improven as false and forged," &c. and "the forgers," &c. " punished."-III. The writs called for have already been produced in the former action, and the defenders are therefore not bound to satisfy the production in this.-IV. In gremio of the second summons, which is marked supplementary, there is not the slightest reference made to the former summons, or its conclusions. Neither does it conclude that it should be conjoined with the former. Answered-I. There is no lis alibi pendens. The present action is not exclusive of, but supplementary to the former, and when conjoined, their reasons and conclusions, in so far as they are the same, will merge into each other. It was brought for the purpose of introducing a reason of reduction, discovered since the former action was raised; and as that new reason was forgery, which required the Lord Advocate's concourse, and could not therefore be introduced by an amendment of the libel, a supplementary summons was necessary, which, of course, must also embrace the reasons and conclusions of the original action.II. Forgery is a relevant reason of reduction. It may even be pleaded ope exceptionis, where the forged document is founded on-multo majus where the party is regularly convened in a formal action of reduction. The Lord Advocate's concourse is obtained, where forgery is alleged as a reason of reduction. The interest of the pursuer terminates with the reduction of the writs. He is not bound to follow out the criminal conclusions; and if not, he is not bound to introduce them into his summons.-III. The production is already in Court, and satisfied in the former process,

may

and be held as satisfied in reference to this action, when it is conjoined with the other.-IV. The partibus of the summons bears that it is supplementary, and it was not necessary to state this in gremio; at any rate, the pursuer is willing to hold it so. Contingency is the criterion for conjunction. No special conclusion is required. The Lord Ordinary, Moncreiff, sustained the action, but intimated an opinion, that the summons ought to have contained the usual conclusions of a reduction improbation-that the documents should be "improven as false, forged," &c. and allowed the pursuer to give in an amendment of his libel to that effect. The defenders then moved that the former action ought to be dismissed, as the latter one was sustained. This motion was refused, in respect that the former action might be well founded, and yet the supplementary one extremely necessary, after the pursuer had discovered the forgery of the document.

Lord Ordinary, Moncreiff.-Act. James Anderson; John Livingstone, W.S., Agent.-Alt. Skene and Walker; H. Davidson, W.S., Agent.-M. Clerk.

HOUSE OF LORDS.

(Speeches taken from Mr Gurney's Short-Hand Notes.)
7th December 1830.

No. 111.-ARCHIBALD WILSON & OTHERS, Appellants, v.
DUNCAN SINCLAIR, Respondent.

Condictio Indebiti-Reduction-Bill-Protest-Messenger-Negligence-A cautioner for a messenger-at-arms, who had neglected his duty, in the execution of diligence, having paid the amount of the bill on which it proceeded, in terms of a decree of Court, which he alleged was obtained in absence, and having received up the bill, protest, diligence, &c.; and having, after these documents had been in his possession for more than a year, obtained an assignution to them, with warrandice from fact and deed; and having thereafter raised an action of reduction of the decree under which he had paid, and for repetition, alleging, that, after the date of the assignation, he had discovered that the protest bore that the bill had been protested on a wrong date-Held, reversing the judgment of the Court of S. ssion, that it was incompetent to decern for repetition before reducing the decree; and that, as the payment did not proceed from a mistake in point of law, but in point of fact, which appeared ex facie of the protest, and which the cautioner must be presumed to have known, having had that document in his possession for twelve months, that he was not entitled to repetition. Opinion expressed, that it is not sufficient to relieve a messenger-atarms from the consequences of his neglect of duty, that there is an error in the grounds of the diligence which was put into his hands

to execute.

In 1820, the appellants, as onerous indorsees, acquired right to a promissory-note, dated 25th July 1820, granted by Alexander Macra to Duncan Campbell for £130, payable three months after date, and indorsed to J. P. Harrison, and by him to Lang and Welsh, and by them to the appellants. Neither Macra nor Campbell were designed in the body of the bill. It was discounted with the Greenock Banking Company, and protested, at their instance, for non-payment. The bill was thereafter taken up by the appellants, and the dishonour duly notified; but the respondent denied that it was. The appellants' agents, Macqueen and Mackintosh, recorded the protest, and raised letters of horning, inhibition, and arrestment thereon, which they transmitted to

Angus Sinclair, messenger at Oban, with instructions to execute the same immediately, against Macra, Campbell and Harrison. Sinclair returned an execution against Harrison, and reported that the other two could not be found. Caption was then raised against Harrison, and transmitted by Macqueen and Mackintosh to Sinclair, with the following letter :

"4th January 1821. You will execute the inclosed caption against Harrison, on receipt, and report to us, in course, that you have done 30."

At the request of the appellants, Macqueen and Mackintosh again wrote Sinclair (11th January 1821):

"In compliance with the request of Messrs Wilson and Maclellan, contained in their letter to us of the 9th inst., a copy of which is annexed, we send you a state of the debt, interest and charges, on Macra's bill, indorsed to them, per £130. The interest is calculated up to the 20th current; but in case that a Bank draft, or other document, is sent us for the debt, which will not be due before the 20th, you must add interest till the time such draft falls due. The bill and diligence in our possession will be delivered up when the business is finally settled, and payment remitted to us by Mr Harrison."

On the 22d of January, Sinclair transmitted the appellants' agents £29 in cash, and two bills, one for £76, and the other for £35, 4. 6. They wrote him in

answer:

"Your letter to us of the 22d ult. has been communicated to our constituents, Messrs Wilson and Maclellan, who have, by this day's post, directed us to reject the terms of settlement contained in your letter. We, therefore, return M'Callum's draft on M Millan, for £76, indorsed to Mr Harrison, and also Mr Harrison's bill on Mr Mackenzie of Knippoch, and others, per £35, 4. 6.; and we have to request that you will immediately, on receipt, put the caption in your custody in execution against Mr Harrison. Our constituents have given us no discretionary powers. Mr Harrison has been credited with the sum of £29, 9s., received from you. If Mr Harrison pays the balance of his debt to Wilson and Maclellan to you, such payment must be at his own risk; and you will explain this to him, before taking any money from him, as our instructions to you are, merely to put the diligence in execution, after crediting the £29, 9s."

Sinclair having failed to execute the instructions contained in this letter, the appellants raised an action against him and his cautioners, including the respondent, libelling on his misconduct, and culpable neglect of his instructions; and concluding against the whole defenders, conjunctly and severally, for payment of the debt, damages and expenses. This action was called in Court in May 1821. Robert Mackenzie entered appearance for the defenders; but the respondent denied that he was employed by him. The record bears:

"18th May 1821.-Act. Robert Mackenzie.-Alt. Maclachlan. To see.- -Robert Mackenzie, agent."

The summons was returned without defences; and on 31st May, decree in absence was pronounced, and an account of expenses allowed to be given in. A remit was afterwards made to the Auditor, and Mackenzie attended at taxing the account. A correspondence then took place between him and the appellants' agents, respecting the precise terms in which the decree ought to be extracted. On 4th July, Mackenzie wrote them :

"In consequence of an intimation that a caption was applied for, sent me by the clerk, I have returned the process, Wilson and Maclellan against Sinclairs. I wrote Mr Harrison to remit me the balance of the debt still due; so that the expense of farther proceedings, on the part of the pursuers, might be avoided, by settling their claim; and I am in daily expectation of hearing from him, with a remittance. I presume your intention now is to get your account of expenses audited. If so, you will be so good as send me a copy of your account, and the regular intimation, when it is to be audited, so that I may be present, to attend to the interest of my clients. I am," &c. And on 21st November, he wrote :—

"Mr Mackenzie presents compliments to Messrs Macqueen and Mackintosh. He has received their letter, with copy minute, restricting the conclusion for damages in Wilson and Maclellan v. Sinclairs. The state which Messrs Macqueen and Mackintosh formerly rendered to Mr Mackenzie, amounted only to £8 10 7

"For this sum Mr Mackenzie does not mean to oppose decreet being taken. In the minute, the restricted sum is stated to be £16, 18. 1. This must be surely a mistake. Mr Mackenzie observes, that there is allowed a fee to crave decreet, in terms of minute; but he hopes Messrs Macqueen and Mackintosh will pass from this, as there is a motion only to be made, to which there is to be no opposition, and as a fee for decreet has already been charged and allowed by the auditor."

The decree was then extracted, and diligence raised upon it. Caption was sent to Macpherson, messenger at Oban, in March 1822, to be executed against the parties. The respondent then transmitted to the appellants £116, 4. 9., the amount of the debt, including about £10 of expenses, incurred in prosecuting Macpherson for neglect of duty, and stipulated that he should receive an assignation, in order to operate his relief. The appellants, in April 1823, delivered to the respondent's agents the original bill, extract registered protest, diligences, and correspondence; and on 23d June 1824, they executed an assignation of these documents in favour of the respondent, with warrandice from fact and deed. The respondent then raised new diligence, and charged Campbell, one of the obligants in the original bill, who paid him the balance due on the bill. Campbell having afterwards discovered that the bill had not been duly protested, brought an action of reduction, repetition, and damages, against the appellants, concluding that the bill or promissory-note, protest thereon, decree interponed thereto, assignation and diligence, should be reduced for these reasons:

"1st, That the promissory-note had been vitiated, and altered in its date;-2d, That it had not been duly protested, as the instrument of protest was dated 28th July 1820, while the note itself was not payable till the 28th October 1820, three months afterwards;-3d, That the said Duncan Campbell had received no intimation of the dishonour of the note. The action farther concluded for repetition of the sum of £63, 5. 3, Sterling, which he, the said Duncan Campbell, had paid, as the balance of the note, with the interest thereof, and also for damages and expenses."

Both the appellants and respondent denied any previous knowledge of the blunder in the protest, The respondent then raised the present action against the appellants, libelling on the facts now stated, and