of an annual committee of ten proprietors; and it is then provided, That the committee of ten shall appoint a secretary and a treasurer, who shall keep regular minutes and accounts, to be annually submitted to the whole subscribers at a general meeting. That the committee of ten shall appoint their own preses and treasurer, who may be either of their own number, or of those subscribing to the amount of twenty guineas; and the committee for the time being, having the sole power of appointing the treasurer, shall be liable for his intromissions. That

if money sufficient for finishing the buildings and procuring a clock shall not be obtained by subscription, the committee shall be authorised to borrow money, and grant security on the buildings, if required, until the debt be liquidated.'"

And with regard to realising the subscriptions, it is provided,

"That as soon as £500 shall be subscribed, the subscribers shall be called together, to appoint a committee, in terms of the above articles, and which committee shall receive estimates, and contract with tradesmen for having the buildings finished agreeably to the plan fixed on.' And by article 12th, The committee, on its election, shall proceed immediately to uplift the money subscribed by regular instalments, in the following proportions, viz. one-fifth part immediately after their appointment, and an equal proportion every three months till the whole be collected.' Article 3d provides, that every person subscribing one guinea shall be a member of the Society;' and the concluding article bears, that every person, by subscribing to the proposed buildings and clock, in terms of the above articles, shall be considered as bound by them.' To these articles and regulations, there is immediately subjoined a minute in the following terms: We, whose names are hereunto annexed, agree to pay the following sums affixed by us to our respective names, for the purpose of erecting a town-house and clock in Saltcoats, agreeably to the above regulations and plan submitted to us.' There then follow the subscribers' names-and among others the names of the suspenders, as subscribers to the amount of £5, 5s.

After a piece of ground was taken, the chargers, being the committee duly appointed in terms of the above articles, proceeded to contract for the building, to borrow various sums of money, and complete the work. The suspenders, besides attending several meetings of the subscribers, paid £2 2s., being the amount of the two first instalments of their subscription; but having afterwards refused to pay the remaining £3, 3s, the chargers raised an action against them before the Sheriff, who repelled the whole defences, and decerned in terms of the libel. Thereafter, the present suspension was brought by them, in which, among other defences, they, for the first time, advanced an objection to the chargers' title, to this effect:

"The action was prosecuted in the name of the chargers, 'as a committee of management appointed for the current year, at a general meeting of the subscribers to the Saltcoats Town-house Society, instituted for the purpose of erecting a town-house and steeple in the town of Saltcoats.' The chargers are a mere committee of subscribers, appointed for the special purpose of superintending the buildings, receiving estimates, &c., and are not the office-bearers of the body of subscribers; and it is not alleged, nor does it appear from the minute of their appointment, that they are authorised to prosecute actions for behoof of the alleged society, or that they have any better right to do so than any of the other subscribers. Supposing, however, that the chargers were the regular office-bearers of the alleged society, that body, being neither incorporated by royal charter, nor being a friendly society, qualified as the law directs, cannot sue or be sued by its office-bearers.'

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The Lord Ordinary (19th November 1829), ordered cases upon the question of title. In the suspenders' case it was argued-I. That the body represented by

the chargers, being neither incorporated, nor a friendly nor mercantile society, had no persona standi in judicio. -II. That at common law, no joint stock companies or partnerships, except strictly mercantile, or falling within the operation of the statute, 7 Geo. IV. cap. 67, possess the privilege of suing or being sued by their office-bearers, or of appearing in any action in their social character.-III. That the chargers are not entitled to the plea of actio contraria mandati against the suspenders, as the action was raised by them as office-bearers of the Society, and not as the mandatories of the subscribers. On the other hand, it was maintained for the chargers-1. That the Society represented by them was of the nature of a partnership, and therefore not illegal at common law, as mason lodges, trades' combinations, which are discountenanced in courts of law as contrary to free trade and public policy: That such copartnerships as the present have been recognised in England and in Scotland, both before and after the Bubble Act: That where societies have not been recognised in their social capacity in courts of law, it has been on account of the inherent illegality and impolicy of their constitution or objects, which cannot be alleged of the present, established for private patrimonial purposes: That in the case of Wilson and Kippen, the First Division of the Court sustained the title of the majority of the committee of the coffee-room to sue (23d June 1821), and although the Second Division, in a posterior judgment (June 7, 1823), held that the same pursuers had no right to maintain the conclusions of the libel, this finding had more relation to, and was more regulated by the conclusions of the libel (which were most illegal and incompetent, viz, to dissolve the Society, and appropriate to themselves the funds), than to the title of the party to sue.-II. That the present Society is of the nature of a mercantile society, or proper copartnership, recognised at common law, and entitled to the same privileges.-III. That the suspenders, besides, bound themselves specifically to pay £5. 5s, and by subscribing the articles, authorised the committee (the chargers) to contract with tradesmen for the completion of the building, and "to uplift the money subscribed by regular instalments:" That this constituted a mandate, which can be enforced at common law.

The Lord Ordinary (12th May 1830), pronounced this interlocutor:

"The Lord Ordinary having considered the revised cases, and whole process, Appoints the cases to be printed and boxed within eight days, and makes avizandum therewith to the Lords of the First Division of the Court, in order to report; grants warrant to enrol the cause in the Inner-House roll at the expiry of the said eight days, upon production to the Keeper of the InnerHouse rolls of a catificate of the boxing of one or both of the printed cases.-Note.-The Lord Ordinary would have repelled the objection to the title of the pursuers, had it not been for the decision in the case of Wilson against Kippen, 7th June 1823. The authority of this decision may indeed be thought to be weakened, in consequence of some later judgments in the case of private Banks; but as the companies there were more of a commercial character than the Society which the pursuers represent, and as it very nearly resembles that which was the subject of consideration in the case of Wilson, he thinks it proper to report the case for the judgment of the Court." At advising the cause,

Lord Balgray observed, that in the case of public companies, not mercantile, it required the royal authority to enable their office-bearers to prosecute. But from the subscription paper, art. 6, in the present case, it was clear that the chargers were in the capacity of mandatories. The suspenders were not entitled to leave the committee in the lurch.

Their Lordships pronounced this interlocutor:— "They repel the reasons of suspension, founded on the objection to the title of the chargers: Find the suspenders liable in the expenses incurred before this Court in discussing the question of title, and remit the account thereof," &c.

Suspenders' Authorities.—Mason Lodge of Lanark v. Hamilton, &c. 11th June 1730. Wilson v. Bryson, 30th June 1750. Crawford v. Mitchell, 13th June 1761. Wilson v. Dobson, 12th December 1771. Canongate Kilwinning Lodge, Edinburgh, r. Lawson, &c. 7th July 1810. Wilson v. Kippen, &c., 7th June 1823; S. & D. Vol. II. p. 378.

Chargers' Authorities.-Gow on Partnership, 2d Ed. 1825, p. 2, 137. Adair v. New River Company, 1805; 2 Vesey, 429. Cockburn v. Thomson, 1809; 16 Vesey, 321. Cousins v. Smith; 13 Vesey, 542. Moore, &c. v. Hammond, 5th May 1827; Darn. & Cresswell, VI. p. 456. Rogget v. Bishop, 1826; Carrington & Payne, II. p. 343. Wilson .. Kippen, 23d June 1821; S. & D. I. p. 88; 8th February 1822, S. & D. I. p. 336; Stair, I. 17, ch. 1, 2; Hein, D. Lib. III. tit. 4, sec. 439.

First Division.-Lord Ordinary, Newton.-Act. Houston.Alt. Sol.-Gen. (Hope), and J. Hamilton.-William Patrick, W.S., and James Moore, S. S. C., Agents.-Sir R. Dundas, Clerk.

19th November 1830.

No. 20.-MRS M'KENZIE or CULLEN, Pursuer, v. WILLIAM EWING, Defender.

Title to sue-Husband and Wife-Curator ad litem.-Circumstances in which a wife, having raised an action of damages, and the husband refused to concur, was found entitled to pursue, and her father appointed curator ad litem.

This was an action of damages, raised at the instance of Mrs McKenzie or Cullen against William Ewing, narrating, That in 1825, the pursuer, "deriving little assistance from her husband, and having no other means of supporting herself and two daughters, born of a former marriage, took a house in Edinburgh for the purpose of receiving boarders:" That she then received as a boarder a gentleman of the name of Wight; who having raised an action against the defender, William Ewing, which came to depend in the Jury Court, the latter in his pleadings there, introduced a variety of false and malicious statements, injurious to the pursuer's (Mrs M'Kenzie or Cullen's) character. A petition for the appointment of a curator ad litem was presented by the pursuer, and remitted to Lord Newton, before whom the action of damages depended. This petition was not disposed of by the Lord Ordinary. After narrating the objectionable passages, the summons concluded, " that the defender should be ordained to make payment to the pursuer of the sum of £2000 in name of damages," &c. Ewing denied the whole libel, but also pleaded as a preliminary defence, that the action was incompetent, upon the ground that it had been raised by a married woman without the concurrence of her husband.

The Lord Ordinary (13th May 1830), "Sustained the dilatory defence pleaded against the action; dismssed the action, and decerned; and found expenses due."

The pursuer reclaimed, and prayed to have a cura

tor ad litem appointed to her. She pleaded-That the defender and her husband had combined to ruin her reputation, and thus deprive her of the means of subsistence: That, in these circumstances, her husband refused to concur in carrying on the action. Answered-The pursuer is a married woman, and must have her husband's concurrence. It is an action of damages for slander, and the sum, if any should be recovered, would belong to the husband, who expressly disclaims any desire to obtain them. Suppose the defender was assoilzied, the husband, in these circum stances, would not be liable for the expenses.

Lord Craigie observed, that the general rule of law was, that a married woman could not maintain an action without the concurrence of her husband. But there were circumstances in this case, where the husband and wife were living separately, which entitled her to pursue, without the concourse of the husband, and to ask the appointment of a curator ad litem. The pursuer kept boarders and lodgers in order to support herself. Good character was essential to her success; and if she were not enabled to defend herself against attacks like the present, it would be a hard case. He would alter the Lord Ordinary's interlo

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They alter the interlocutor complained of; nominate and appoint Nicol Mackenzie, the complainer's father, to be curator ad litem to her, and remit to the Sheriff-depute in Glasgow, or his Substitute, to administer to him the oath, de fideli, in common form: Find the respondent liable in expenses; appoint an account to be given in," &c.

Pursuer's Authority.-Finlay v. Hamilton, 5th February 17:8; Mor. 6051.

Defender's Authority.-Ersk. 1. 6. 21.

First Division.-Lord Ordinary, Newton.-Act. Jo. Wilson. -Alt. Keay and Maitland.-Agents, William Dalrymple,' S.S C., and Daniel & Ross, W.S.-Mr Hamilton, Clerk.

This was a charge at Grindlay's instance against Mrs Risk, for payment of a bill of this tenor:

"ST MARGARET's, near CAMELON, July 20, 1826.-£45, 5s. 6d. Sterling. Two months after date, pay to me, or my order, at the office of James Grindlay, writer in Falkirk, the sum of forty-five pounds five shillings and sixpence Sterling, value of me, in cash. (Signed) JAMES GRINDLAY, JEAN RISK. Mrs Jean Reid or Risk, residing in Bainsford."

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Mrs Risk brought the present suspension of the charge (which, on her death, was insisted in by her cautioners), and averred that she did not know, and had never had dealings with the charger: That the charger's son, James Grindlay, jun. writer in Falkirk, was at one time her agent, and may have fraudulently obtained her signature to the bill by misrepresenting

its purport, and stating her subscription to have been necessary for the management of her affairs: That the bill charged on was fraudulently written by James Grindlay, jun., or some person employed by him, and no value whatever was given for it: That the said James Grindlay, junior, was also the notary who protested the bill; and the protest bears that the bill was presented for payment at his own office in Falkirk: That it never was presented to the suspender; and she knows nothing of the protest: That the said James Grindlay, junior, on one occasion, induced her to sign one or two pieces of blank paper by misrepresentation. The charger answered-Before the date of the bill charged on, the parties were upon an intimate footing, and frequently visited each other. The respondent advanced to the suspender in cash, the sum contained in the bill charged on, and received that bill in return. The suspender was perfectly aware of the nature of the transaction. The respondent repeatedly demanded payment of the bill charged on from the suspender extrajudicially. She never denied her liability, but merely alleged that it was inconvenient at the time to make payment. The suspender pleaded-I. A protest, executed upon a bill of exchange by a notary, who made the presentment at his own office, and was the son of the alleged creditor, is an irregular and illegal instrument, upon which summary diligence cannot proceed.-II. The charger cannot enforce payment of a bill, for which neither he nor the drawer gave value to the acceptor.

III. Action cannot be sustained on a bill of exchange, obtained by means of fraud. The charger pleaded-The suspender is bound to pay her accepted. bill, unless she can establish, by writ or oath of party, a valid exception against it. No relevant statement of facts is made, which can take the case out of this general rule, more especially in a process of suspen

sion.

The Lord Ordinary pronounced this interlocutor : "The Lord Ordinary, (13th May 1830), having considered the closed record, and heard counsel for the parties, repels the reasons of suspension, founded on the circumstance, that the notary who extended the protest, the presentment being at his own office, was the son of the creditor in the bill; and sists process for 14 days, to give the suspenders an opportunity of bringing an action of reduction of the bill, on the ground of fraud, if they shall be so advised."

The suspenders reclaimed and pleaded-That there existed a strong analogy between the situation of a notary public and a judge; and that as relationship disqualified the latter from exercising his office, it ought to have the same effect regarding the former, who was entrusted with duties of vital importance to society.

Lord Balgray observed, a notary public cannot act if he be a party. The partner of a Bank cannot protest a bill.

Their Lordships unanimously adhered, and found the suspenders liable in the expenses of the discussion of the preliminary objection.

Suspenders' Authorities.-Voet. Lib. xxii. 4, 5. Bank, p. 502. Kirk v. Russel, 27th November 1827; Fac. Coll. & S. & D. Leckie, 20th November, 1627; Mor. 16,878. Dalgleish v. Scott, &c. 18th June 1822; Shaw, Vol. I. p. 506. Farries, 9th June 1813; Fac. Coll.

First Division.-Lord Ordinary, Corehouse.-Act. Dean of

Faculty (Jeffrey) & Christison.-Alt. Solicitor-General (Hope) & Forsyth.-W. Renny, W. S., & James Stuart, Agents.Sir R. Dundas, Clerk.

19th November 1830.

No. 22. PATRICK DUDGEON, Pursuer, v. Hugo ARNOT,
Defender.

Liferenter and Fiar-Deed-Construction-Held, that the fiar under a trust-settlement, being also heir-at-law as well as heir under the entail of a separate estate, is bound, if he takes under the settlement, to pay from the date of the settlement, the interest of a sum left to the younger children but not payable till the death of the widow liferenting, under a clause binding the individual or individuals drawing the benefit of the disposition.

The late Hugo Arnot, advocate, proprietor of the entailed estate of Balcormo, executed, on the 3d of September 1785, a disposition and settlement of all his other property, which was registered on the 28th of November 1786, and which, inter alia, contained the following clauses:—

"Therefore I, by these presents, dispone and convey to Margaret Bennet, my wife, in liferent, in liferent allenarly, during all her life, and to Hugo Arnot, my son, in fee; whom failing, to the eldest son that I may have in lawful marriage, who shall survive, or leave lawful children surviving; whom failing, to Christian Arnot, my eldest daughter; whom failing, to the eldest daughter may have in lawful marriage, who shall survive, or leave lawful children surviving me; whom failing, to the heirs of entail in their respective order, appointed by the deed of entail executed by my deceased mother, Mrs Christian Arnot of Balcormo, dated at Balcormo, the 10th day of July 1770 years, of the said estate of Balcormo, All and whole," &c.-" As also, I convey and dispone to the said Hugo Arnot, my son; whom failing, to the eldest lawful son that I may have in lawful marriage, who shall survive, or leave lawful children surviving me; whom failing, to Christian Arnot, my eldest daughter; whom failing, to the eldest daughter I may have in lawful marriage, that may survive, or leave lawful children surviving me, (and it is also my will and resolution, that if my eldest son Hugo, or my eldest daughter Christian, should die before me, and should leave children, that their children should come in their place, and enjoy what is now and hereby devised to them in part of this disposition, in the same manner as I have already mentioned respecting my other children); whom failing, to Margaret Bennet, my wife; whom failing, to the Dean of Faculty of Advocates, for the use of their library, my whole household furniture, plate, china, rings, jewels, pistols, coins, medals, and the indented mahogany box containing those medals; as also, my whole pictures, prints, books, and manuscripts, but with and under the following reservations, namely, that the said Hugo Arnot, my son, or whichever of my children, in the series already described, may reap the benefit of the said disposition, that they be obliged, as by acceptance hereof, they oblige themselves to give the liferent use and possession of the said household furniture, plate, china, &c. &e., to Margaret Bennet, my wife, during all the days of her life and widowhood, but declaring that if she shall marry again, she shall thereby instantly forfeit all right to the liferent of the said furniture, and shall instantly denude of the same: And further, that the said Hugo Arnot, my son, whom failing, whichever of my children, in the series already described, may reap the benefit of this disposition, shall also be obliged to pay to my younger children £300 Sterling, at the first term of Whitsunday or Martinmas after my decease, with annual-rent thereof from the said term of payment, during the not-payment,-the said £300 to be divided equally among my younger children," &c. "But I dispone the whole subjects above mentioned under this restriction, namely, that if Hugo Arnot, my son, or whichever of my children may succeed me in the land and houses bought from Alexander Mayes, as above conveyed, or to the lands of Rinkmuir, above mentioned, shall die before he or they attain the years of majority, and unmarried, then the said Hugo Arnot, or whichever of my children shall succeed to the land purchased from

Alexander Mayes, or to the lands called Rinkmuir, as above conveyed, shall not have liberty to dispose upon the same at pleasure, but these lands must fall and accrue to the person succeeding him or them in the estate of Balcormo, agreeably to the entail of said estate; but after marriage, or the years of majority, he or they may dispose upon the same at pleasure: And further, in case my said son Hugo, or whichever of my said children shall succeed me in my household furniture, plate, china, rings, jewels, pistols, coins, medals, books, manuscripts, pictures, and others above enumerated, as above conveyed, shall die before attaining to marriage or majority, he or they shall not have liberty to dispose upon the same at pleasure, neither shall they be divided equally among my children, but shall go from my son Hugo to his immediate younger brother, if he has any, and so through the male line; which failing, to Christian, my eldest daughter; whom fail. ing, to her immediate younger sister, and so through the female line; which failing, to Margaret Bennet, my wife; whom also failing, to the Dean of Faculty of Advocates, for the use of their library, but after marriage or majority, he or they may dispose upon the same at pleasure: And further, I declare that this disposition is intended by me to comprehend not only such lands, debts, or effects, heritable or moveable, as I am possessed of, or have a right to at present, but likewise, all such real or personal estate as I shall acquire or succeed to between the subscribing this conveyance and my decease: Moreover, for completing the purpose hereof, I give full power to the said Hugo Arnot, and the other heirs of my body, as said is; whom failing, to the other persons named my disponees, in their respective order, to complete the proper titles to my said real and personal estate, as the law directs, to enter into immediate possession, to uplift, intromit with, and dispose upon the same at their pleasure, and generally to act respecting the premises as I myself could have done: And I hereby nominate and appoint the said Hugo Arnot, my son, whom failing, my other children before mentioned, in the order above set down, to be my sole executor and universal legator to my whole moveable goods, gear, means, and effects before mentioned, in the manner before expressed, with power to them severally to expede confirmations, and to do every other thing that an executor-nominate may do by law; and I hereby burden my said son Hugo, failing whom, my other children before mentioned, in the order before exprest, with the payment of all debts that shall be owing by me at the time of my death, and with the charges of my funeral; and also, besides the foresaid £300 to my younger children, with the further sum of £500 Sterling, contained in a bond of provision granted by me to the said Christian Arnot, my eldest daughter, and my other younger children, of date the 18th day of June 1783; and, likewise, besides £200 Sterling, left by my mother to my daughter Christian, and secured to her upon the lands of Rinkmuir: Declaring always that the provisions hereby made in favour of my wife are over and above, and without prejudice to a bond of locality I have formerly granted to her upon the lands and estate of Balcormo; declaring also, that in case of the death of any of my younger children before uplifting the foresaid £300 Sterling, the share thereof belonging to such deceasing child or children is to belong I also desire and recomequally to all my surviving children. mend it to my son Hugo, and his tutors and curators, and to Margaret Bennet, my wife, that he, from the rents of Balcormo, which he will succeed to at my death, and she, from the jointure by locality that I have provided to her, will amicably, conform to their respective abilities, maintain and educate my younger children. At the same time, I reserve the liferent of the whole of said premises to myself," &c. I, the within-designed Hugo Arnot, appoint that my coins, medals, rings and jewels, shall be preserved entire for the heir of entail of my family for the time being; and I will that the same shall be the property of the heirs of my body, seriatim, shall not be disposable of by them, but shall go along with my estate of Balcormo; and failing such heirs, that the same shall be delivered over to the Faculty of Advocates," &c.

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Mr Arnot died on the 20th of November 1786, leaving a widow, three sons and five daughters, and leaving certain individuals tutors and curators to his family. At the request of those persons, Greig made

for John, the second son, certain advances, in security of which the latter executed in 1797, with consent of his curators, a bond of corroboration and assignation of his one-seventh of the £300, with past and future annual-rents thereon. On the death of Greig, his widow obtained decree for, and payment of £196, 9s., the amount due by John Arnot from the curators. The pursuer obtained from them an assignation of their claim for the above £300, and interest, and granted a discharge, 25th February 1826, containing the following clause:

"Declaring, notwithstanding of the above limitation, that I and my foresaids shall not be entitled to pursue the said Hugo Arnot, in virtue of the foresaid writings, for payment of the share of a sum of three hundred pounds provided to the said John Arnot, and the other younger children, by their father's deed of settlement, and to which share I have now right, as trustee foresaid, unless the said Hugo Arnot shall hereafter enter into possession, and make up titles to the property thereby conveyed, and which is burdened with the said sum of three hundred pounds."

The widow of Mr Arnot, senior, died on the 12th of November 1826, having enjoyed her provisions under the above settlement, as well as a locality off the entailed estate. The defender, although ready to

pay John Arnot's share of the £300, refused to pay interest thereon farther back than the death of his mother. And, accordingly, the pursuer brought an action against him for £42, 17. 2., with interest from 15th May 1787, in so far as necessary to reimburse the curators for their advances, and for their expenses in recovering, or attempting to recover those advan

ces.

The defender pleaded,―That, under the settlement, no interest was due while his mother's liferent absorbed the estate: That as he never had entered to possession, or made up titles under the settlement, the pursuer was bound by his own discharge of 25th February 1826: That he (the defender) was entitled to set off his expense in alimenting and educating the younger children in minority; and that he was entitled to reject the settlement altogether, and leave the subjects.

"The Lord Ordinary (11th March 1830,) having resumed consideration of the debate, and advised the process, Finds, from the whole conception of the disposition, 3d September 1785, that the defender, or whichever of the disponees reaps the benefit of it, by intromitting with, or possessing any of the subjects therein conveyed, becomes liable to pay to the younger children £300, with interest from the first term of Whitsunday or Martinmas after the late Mr Arnot's death, and that the pursuer, as in right of the curators of John Arnot, have a claim upon the share of this sum which falls to the said John, in proportion to the sums advanced by them along with the curator, whose heir does not concur in this process: Finds that the claim of interest prior to 1792 is not cut off by the application of the rents of Balcormo to the aliment of the younger children, in respect that this application was in terms of the recommendation of the late Mr Arnot, and plainly contemplated by him; and appoints the cause to be called, in order to apply these findings."

The defender reclaimed. At advising, the pursuer pleaded, That support by the widow who drew the rents, could afford the defender no claim of compensation against the children, however it might affect the mother, especially as he had sanctioned that application of the rents by the mother for 40 years.

Lord Cringletie never heard that where a deed was capable of a plain interpretation, the Court would give it any other interpretation. Whoever reaped the benefit of the disposition was to be bound in the whole interests, and the obligation evidently covered the benefit from the whole deed. Very probably, Mr Arnot had not contemplated that his wife would survive him for 40 years. But the defender could only escape by throwing up the whole deed. The recommendation in that deed did not import an obligation. And the defender had no claim to a greater extent than the annual interest for his advances under that recommendation. Yet, if he could shew what he advanced under it, he should be repaid..

Lord Glenlee had great doubts as to the last part of the interlocutor. The recommendation was no obligation.

The Lord Justice-Clerk thought it perfectly plain that the disposition referred to covered all. Any doubt would be removed by the last clause. The Court could not make a new deed.

The Court adhered.

Second Division.-Lord Ordinary, Medwyn.-Act. Jameson, Wood.-Alt. Dean of Faculty (Jeffrey), Ivory.—Party, and Alexander Stevenson, W. S., Agents.-Mr Thomson, Clerk.

20th November 1830.

No. 23. HUGH FALCONER, Suspender v. PETER GRAY,

Charger.

Bill of Exchange-Suspension-Diligence-- Agreement--Construction-A party having granted a bill to a tradesman, under the condition that he was only to pay when convenient; and having afterwards renewed this by another, at four months, and when charged for payment of the second bil', granted an obligation to pay within a certam time; and having failed to perform this obligation; and the diligence on the second bill having, in consequence, been renewe—Held, that there were not sufficient grounds of suspension in the avern ents that the conditions of the first bill were not fulfilled, and that the bills were for a tradesman's account, upon which a year's credit should

When the bill fell due (5th February 1830), it was renewed at four months; and not being then paid, was duly protested, and a charge (12th July 1830), given on it. After various communings and attempts to arrange the payment, during which the suspender maintained that he was only bound, by the original agreement, to pay when convenient, the charger again put his diligence in force, and apprehended the suspender (18th August 1830). The suspender then granted a letter of obligation to the charger, undertaking to pay half the amount of his bill within one month, and to accept a bill for the balance at six months. The suspender was then liberated, but failed to fulfil this last obligation. The charger was again proceeding with his diligence, when the suspender presented this bill of suspension, in which he maintained-That the diligence was oppressive, in respect the bills were granted for the charger's accommodation, as the account for which they were granted was not a year due (the period of credit usually allowed in the trade), the last article being furnished on 2d November 1829: That the express understanding on which the goods were taken and the bills granted was, that

the suspender was not to be harassed until he could conveniently pay. The suspender offered to consign the amount of the claim. The charger in his answers maintained-That the meaning of the original agreement was, that when the first bill fell due it should be renewed for such a time as Mr Falconer should require: That it was, in consequence, so renewed by the second bill at four months: That, even if the first agreement had been such as represented by the suspender, it was virtually and voluntarily departed from by the letter of obligation, of 18th August 1830; and that, even if a year's credit had been exigible (which was denied) that period had expired. The Lord Ordinary (16th October 1830),

"Passed the bill, on the complainer making consignation, as therein proposed."

And the charger having reclaimed,

Lord Gillies observed, that some latitude was due to the original agreement, but the suspender had exceeded that. He had stipulated for delay until he could conveniently pay. But he had admitted that he was prepared to consign; and if it was convenient to consign, it was as convenient to pay. Upon the most favourable view of a year's credit, the time had expired.

The Court then altered, and remitted to the Lord Ordinary on the bills to refuse the bill, and found the suspender liable in expenses, &c.

First Division.-Lord Ordinary, Craigie.-Act. Pyper.— Alt. J. W. Dickson.-James Souter, W.S., & Andrew Bayne, Agents. Sir W. Scott, Clerk.

20th November 1830.

No. 24.-ALEXANDER BROWN, Jun. &c. Suspenders, v. EDWARD SANDEMAN, Charger.

Any

Suspension-Bill-Caution-Partnership-Quorum-Minority -Circumstances in which a Bill of Suspension of a charge upon an ex facie regular and valid decreet was passed on juratory caution. The suspenders were, along with seven others, members of a Committee of Management, appointed by a Dissenting Congregation in Stockbridge, to superintend the erection of a chapel upon a feu which they had purchased there, and had feudally vested in the said Committee for the general behoof. five of the Committee were declared a quorum, and as such entitled to transact with workmen, tradesmen, &c., in completing the church, and to bind the congregation therefor. John Moncur, plumber, supplied the plumber work, for which three members of the Committee granted their bill, dated 7th July 1827, at six months, which was protested for non-payment, and afterwards renewed by another bill, accepted by four others of the Committee of Management. This bill was indorsed by Moncur to the charger at whose instance it was protested. The charger then raised an action of constitution upon the bill against the suspenders, in which he obtained decree in absence Being unable to recover payment of his debt, he entered at length into an arrangement with the other creditors, to which many of the shareholders, and most of the Committee of Management acceded, to sell the chapel to another congregation, who had offered £1600. Seven of the Committee of Management, in whom the chapel was vested, signed the conveyance to this congregation, but the five suspenders refused to sign; and the crediters, being displeased at what they