"SIR,-As you have this day given me your bill for £230 Sterling, I bind myself to give you credit for the same in my account; and I further bind and oblige myself, in consequence of this payment from you, to free you from all bonds and other claims that I may have against you, on condition that you grant me your bond of annuity during my life, for a sum equal to the balance you owe me, after deducting this £230, at the rate of 7 per cent. (Signed) "JAS. M'NEILL.

(Agreed) "HECTOR F. M'NEILL." Dr M'Neill immediately protested against this agreement; and in 1814, his trustees raised an action of reduction of the transaction, on the ground of facility and misconception, in which they obtained decree before, the Court of Session; and H. F. M'Neill having appealed in 1822, the House of Lords affirmed the judgment on 21st May 1824. In February 1817, the trustees raised the present action, founding on the heritable bond, and concluding for payment of the principal sum therein contained, with the lawful interest thereof from the term of Martinmas 1792. Defences were lodged, in which the defender objected, that the bond was not produced, and that the pursuers' title was exceptionable, being a conveyance in trust by Dr M'Neill in 1814, when, according to the pursuer's statement, Dr M'Neill was in dotage; and that therefore they were not in safety to pay. The Lord Ordinary, on 4th December 1817, decerned for the principal sums and interest as libelled, and found no expenses due. Both parties represented the defender on the merits-the pursuers upon the point of expenses only. Dr M'Neill died in 1817, leaving a settlement in favour of the respondent, Mrs M'Neill. Alexander M'Neill, as the Doctor's heir-at-law, raised a reduction of this settlement, on the head of circumvention, lesion and facility, in which decree of absolvitor was pronounced in December 1822. During the dependence of these proceedings, the respondent brought an action to compel her father's trustees to denude of the trust, including the heritable bond. The trustees, on the other hand, raised an action of multiplepoinding and exoneration, in order that they might pay and denude in safety. These actions were conjoined; and in terms of an interlocutor, of 16th January 1824, the trustees denuded in favour of the respondent. During these proceedings, the present action fell asleep. The action was wakened in 1823, and thereafter the respondent was sisted as a party. A minute was lodged for her, claiming compound interest; but on answers and debate, the claim was repelled. The respondent reclaimed. The Court, on 26th May 1826, pronounced this interlocutor:

"The Lords having resumed the consideration of this note, and heard the counsel for the parties, they alter the interlocutor of the Lord Ordinary complained of; sustain the claim of the pursuers for compound interest on the heritable debt libelled; find that the pursuers are entitled to have the bygone interests, at the rate of five per cent. per annum, accumulated on the 26th day of December 1811 years, with the principal sum, and also to have the same and accruing interests accumulated at the foresaid rate at the end of every two years thereafter, until the whole are paid up, and remit to the Lord Ordinary to proceed accordingly; and further, find the pursuers entitled to the expenses of process, and remit to the Lord Ordinary to modify and decern for the same."

H. F. M'Niell having died, the action was transferred against his brother, the appellant; and on 10th

July 1828, the Lord Ordinary decerned against him for £3300, ad interim. Malcolm M'Neill then entered an appeal to the House of Lords, pleading-I. That the judgment of the Court, ordering the bygone interest to be accumulated with the principal sum contained in the bond, upon the 26th December 1811, and awarding compound interest by biennial rests since that date, is disconform to the grounds of action, and ultra petita of the summons itself.—II. That Lord Alloway's interlocutor of 4th December 1817, decerning for the principal sum, and interest as libelled, having been acquiesced in and suffered to become final by the trustees, the subsequent demand for compound interest was incompetent ;-III. That accumulation of compound interest upon a loan of money is contrary to the established rules of the law of Scotland.-IV. That the respondent had no proper title to discharge the debt. The respondent maintained,-I. That while the accumulation of interest was in no respect contrary to law, it was plainly due in equity, considering the circumstances of the case, and, particularly, that payment of the debt had been so long withheld, in consequence of the illegal and fraudulent conduct of the original defender, Hector Frederick M'Neill.-II. That, in any circumstances, there could be no doubt of the respondents' right to have the accumulation sustained to the full extent of the principal sum and interest, and penalties concluded for in the bond; these penalties being a part of the debt, as constituted by the bond itself, and there being no reason for restricting the penalties, which are below the amount of the interest as accumulated by order of the Court. After hearing parties, the House of Lords ordered and adjudged, "That the several interlocutors complained of in the said appeal be, and the same are hereby reversed; and it is further ordered, that the cause be remitted back to the Court of Session, to ascertain what is due to the pursuer on the heritable bond, with simple interest thereon, to be calculated on the principal debt, and to proceed accordingly; without prejudice to such claim (if any) as the said respondents may be enabled to make for any part of expenses of process incurred prior to the date of the interlocutor of the Lord Ordinary of the 12th (and signed 16th) November 1825, or to the objections which the appellant may be enabled to make against such claim."

Appellant's Authorities.-(1.) Ersk. IV. 3, 3. Bank. IV. 36, 5. Fraser v. Hamilton, 22d January 1679; M. 564. Stair, IV. 3, 2. M'Adam v. The Creditors of Campbell, 25th July 1787; M. 10,051.-(3.) Ersk. III. 3, 78, 31. Stair, I. 15, 8. Bank. I. 21, 9. Lady Braid v. The Earl of Kinghorn, 26th January 1669; M. 16,411. Dun v. Colquhoun, 12th February 1790; M. 16,436. Campbell v. The Earl of Galloway, 3d March 1802; M. App. No. V. Annualrent. Statute, 1620, c. 21. Thornbull v. Evans, 2d July 1742; Atkyns, II. p. 331. Waring v. Canliffe, 12th March 1790; Vesey, Rep. I. p. 99. v. Earl of Winterton, 15th March 1792; Vesey, I. p. 451.

Tew

Respondent's Authorities.-(1.) Lord and Lady Montgomerie v. Wauchope, 1812 and 1813; Dow, IV. p. 133. Hamilton v. Marshall, 25th February 1813. Raphael v. Boehm, September 1805; Vesey, Vol. XI. p. 92. Duke of Queensberry v. Crawford Tait, 11th July 1817, and 23d May 1822.

First Division.-Lords Ordinary, Alloway and Eldin.. Spottiswoode and Robertson, Appellant's Solicitors.-Sidney S. Bell, Respondent's Solicitor.

Printed by M. ANDERSON, Law-Printer.

No. 211.-WILLIAM DUNCAN, W. S., Pursuer, v. THE EDINBURGH AND GLASGOW UNION CANAL COMPANY, Defenders. Partnership Agent and Client-Circumstances in which a partner of a company was found not entitled to charge for professional business done for the Company, as a member of committee, but only for outlay and for part of the business done in his own chambers.

The affairs of the Edinburgh and Glasgow Union Canal Company were managed by a committee, consisting of twelve directors, holding their office honorarily and gratuitously. At a general meeting of the proprietors, in June 1826, it was resolved to appoint an aggregate committee, to consist of the committee of management and twelve other proprietors, for the purpose, inter alia, of investigating and drawing up a full statement of the affairs of the Company. Among the members of this aggregate committee were the pursuer, Mr John Forman, W.S., Mr Roger Aytoun, W.S., Mr John Cay, advocate, &c. This committee held several meetings, at most of which the pursuer attended, and officiated as clerk, taking down, and engrossing the depositions of witnesses, extending the minutes, conducting correspondence, and consulting counsel, &c. besides making considerable disbursements on account of the Company. For payment of these, and of his services as clerk to the aggregate committee, Mr Duncan brought the present action against the Company, concluding for £321, 12. 5. The Company lodged defences, in which they consented to

the sums which the pursuer could instruct to re-pay have been disbursed by him for behoof of the Company, although these might not have been strictly regular and indispensible, but they maintained-That they were not bound to make any remuneration for the pursuer's services as clerk to the committee: That the general meeting of proprietors of June 1826, had not authorised the aggregate committee to employ any one in the capacity of clerk, with a salary or allowance: That the pursuer was himself a member of the aggregate committee, and bound to attend its meetings, and to render personal assistance in its investigations: That the committee understood that the pursuer's services were to be gratuitous, in the same manner as those of the other professional members of the committee who attended, and personally assisted in the investigations of the committee as well as the pursuer: That the recognition of the pursuer's claim would confer on all the other members of the committee a similar right to claim: That the pursuer did not stipulate for any remuneration: That by one of the regulations of the Company it is enacted, "That no person holding any place, office, employment, or con. tract under the Company, shall be capable of being one of the said committee while he holds such place,' dc.; and the pursuer, in the knowledge, and under the operation of that rule, was not entitled, at the same time, to be a member of the committee, and salaried clerk to it. The pursuer, on the other hand,

Vol. III. Conducted by

SJ. W. DICKSON, W. H. DUNBAR, Advocates, JOHN RYMER, W.S., and others, Members of the Bar.

maintained-That the said prohibitory clause of the statute was only directed against the regular officebearers of the Company, and not against those the Company or their committees might casually employ: That he was regularly appointed clerk by the aggregate committee, and attended all their meetings, and devoted his time, his funds, and professional exertions to the furtherance of its affairs, to an extent quite irreconcileable with the notion of gratuitous service. The Lord Ordinary (14th May 1830,) pronounced this interlocutor:

"The Lord Ordinary having considered the closed record, and heard counsel for the parties, In respect the pursuer was himself a member of the Aggregate Committee of the Edinburgh and Glasgow Union Canal Company, and did not stipulate for any remuneration on account of his services in that committee; and in respect it does not appear that the Company authorised the Aggregate Committee to appoint a clerk, to be paid by the Company, for doing any part of the business entrusted to the Committee, assoilzies the defenders from the conclusions of the action, except to the extent of the pursuer's claim for advances in money, which he made by the order, or for behoof of the Committee, with interest at the rate of five per cent. from the date of advance; for which advances and interest, of consent, finds the defenders liable, and remits to the Company to prepare a state accordingly; finds the pursuer liable in expenses, and remits the account, when lodged, to the auditor to be taxed."

The pursuer having reclaimed, the Court (25th November 1830,) ordered him to produce a state of the sums for payment of which he now insisted, amounting in whole to £286, 13. 9. The principal charges in this state, besides outlay, were the following: (1.) Copies of proceedings, &c. made in chambers, £90, 17s. 6d. (2.) Writing proceedings, done partly by Mr Duncan, and partly by his clerk, £17, 18s. (3.) Time occupied in chambers on the days immediately following each sederunt, with clerk, in revising and filling up in words at length the drafts of the minutes taken short at the sederunts, for enabling them to be fair copied at length, being 38 days, occupying from two to three hours of each day at an average, £20. (4.) Writing 93 letters throughout the whole course of the investigation, £15, 16s. (5.) Attendances on Mr Monypenny, W.S., Mr Stewart, S.S.C., &c. as to processes, &c. £2, 13. 4. (9.) Drawings of cases to counsel, &c. £8, 13. 6. (17.) Time occupied in revising proofs and re-proofs of the whole minutes of evidence, extending to 469 sheets manuscript-of the report—of the whole protests-answers-cases to counsel—opinions, &c. &c.—and re-proofs, &c. from the 8th December 1828, to the 19th February 1829, engaged at an average of three hours for 25 days, £20. was also charged about £4 for other attendances, &c. The rest of the state consisted of outlay, viz. £92 for printing-£13, 11s. of counsel's fees, and 17s. 4d. for books and postages.

There

Lord Balgray.I confess I agree with the principle of the Lord Ordinary's interlocutor. If the pursuer meant to act as an agent, he should, at least, have informed the committee beforehand, that he intended to charge as such. He had no better right to be paid than any of the other professional gentlemen who were members of the committee. I would, therefore, strike off those articles which more particularly relate to the pursuer's actings as a member of the committee-viz. Articles 2, 3, 4,

No. XVI.

9 and 17, of the state, amounting to about £83. The pursuer had no right to write the 93 letters charged for, but should have employed the agent for the Company. On the whole, I would decern for £205, which includes a fair and ample allowance for whatever is chargeable.

Lords President and Gillies agreed.

Lord Craigie's only objection was, that encouragement was thus given to partners to make groundless claims against companies, and thought the principle of the Lord Ordinary's interlocutor should be adhered to.

The Court

"Find the pursuer entitled to the sum of £205, with interest from the dates at which the advances were made, and decern; and, quoad ultra, adhere to the Lord Ordinary's interlocutor, -of new, find expenses due by the pursuer."

First Division.-Lord Ordinary, Corehouse.-Act. G. G. Bell; Thomas Landale, S.S. C., Agent.-Alt. Skene and J. S. More; J. G. Davidson, W.S., Agent.-D. Clerk.

8th February 1831.

No. 212. ROBERT GEORGE, Pursuer, v. JAMES SCOTT, Defender Interim-Decree pronounced for a sum of which payment was tendered in the defences, although the defender alleged that the offer was made on condition of his receiving a discharge in full. George brought an action against Scott, for the amount of an account for certain coaches, &c. furnished to him. Scott, in his defences, objected to various articles of the account as overcharged, and stated, "The amount of the different items of the pursuer's account will be found not to exceed, on the highest calculation, the sum of £647 19 0

from which deduct the bill admitted to have been granted by the defender in the account produced,

66

300 0 0

£347 19 0

Leaving a balance of of which the defender hereby tenders payment." And in his answers to the pursuer's condescendence, the defender stated, that he had all along been willing to pay this sum, on receiving a discharge of the account sued for." The Lord Ordinary (Corehouse) "Decerns against the defender for the admitted balance of £347, 19s. Sterling; and unless the same is paid within three weeks from this date, allows an interim-decree to go out and be extracted therefor, accordingly ;"

and, quoad ultra, granted a diligence, &c. The defender reclaimed, and pleaded, That his offer to pay £347, 19s. was only conditional, on receiving a discharge of the account;-but the Court adhered, and found the defender liable in the expenses of this appearance.

First Division.-Lord Ordinary, Corehouse.-Act. J. J. Reid; James Goldie, W.S., Agent.-Alt. James Anderson; John Livingstone, W.S., Agent.

8th February 1831.

No. 213.-A. Pursuer, v. B. Defender.

Process Printing Record.

Objected to a reclaiming note, that it referred to the record printed with a former reclaiming note for the other party, of the printing of which record the present reclaimer refused to pay one half the expense.

Lord President.-Reference is always made to the record previously printed and boxed by the other party. The expense is a matter of after consideration.

Ordered to the roll.

First Division.-Act. Small Keir.-Alt. Patton.

8th February 1831.

No. 214.-JOHN SMYTH, Suspender, v. MRS ANN WEBSTER or GUTHRIE & OTHERS, Respondents.

Commonty-Division-Interdict—Interdict granted against one of the co-proprietors of a commonly taking away stones for building, after the commonly had been staked off with a view to a division.

In April 1828, the suspender instituted an action of division of the commonty of Inverharity and Glen of Glencally, belonging to him and the respondents and others, in common property. Patrick Small Keir, Esq. was appointed commissioner, and a plan and survey of the commonty was made out by a surveyor appointed by him, after which a proof was taken; and the commissioner, on 3d June 1829, issued notes as to the principles of division on which he was to proceed. Thereafter, the commonty was allocated and valued by the surveyor and valuators, and their reports were approved of by the Court, on 26th January 1830, and decreet of division was pronounced and extracted. During the dependence of this process of division, the respondents had engaged in the erection ofa mansion-house, and other buildings, to enable them to carry on which they commenced digging up stones which lay fixed over the surface of the commonty, and known by the name of "Peasy" granite, said to be valuable for building, as being capable of being wrought by the chissel, which is not the case with ordinary gra nite. The suspender presented a bill of suspension and interdict, setting forth the proceedings under the process of division-That the respondents, by digging and quarrying stones at a great variety of places over the surface of the lots set apart to the suspender, had injured the solum, and strewed it with rubbish, besides carrying off the valuable stones which were indispensible for enclosing the suspender's own lots: That the suspender had written to one of the respon dents, in answer to an application for liberty to take the stones, declining to grant such liberty; and although this was subsequent to the allotments being marked off, and march-stones placed by the valuators and surveyor, the respondents had persisted in their unwarrantable proceedings, and therefore praying for suspension and interdict. The suspender pleadedI. None of the co-proprietors of a common can carry off any part of the solum, nor exercise any right not sanctioned by immemorial usage.-II. After the length which the proceedings had gone in the process of division, the respondents were in mala fide to quarry stones on the allotments set apart to the suspender, even if they would otherwise have been entitled to do so. The respondents pleaded-I. The practice of taking large moss-stones from the common has been sanctioned by immemorial usage, and is quite lawful on the part of the co-proprietors.-II. Though the process of division was in dependence, no direct allotment had been made, and consequently no right of exclusive property in any part of the common had been acquired by any of the co-proprietors. Lord Moncreiff passed the bill by the following interlo

cutor:

"The Lord Ordinary (21st October 1829,) having considered, &c. In respect it appears, from the process of division and the papers entituled Interim Reports' by Mr Small Keir, the

commissioner appointed by the Lord Ordinary, and the surveyor employed by him, that the proceedings in the said process have advanced so far, that there is an actual allotment of the portions destined for each of the proprietors in the common, and which, as far as relates to the proportions of the complainer, appears to be final to the extent of the powers of the commissioner; and, in respect that in this state of the process of division, it does not appear to be consistent with justice, that one of the proprietors, in common, should be allowed to work and carry away stones from a valuable quarry, within that portion of the grounds, which is ready to be reported by the commissioner, as set off for another proprietor in the division-Passes the bill, and continues the interdict, to the effect of prohibiting the respondents from appropriating, away-carrying, and using the granite or other stones situated upon those parts of the common, which, according to the allocation made by the commissioner, have been set apart for the complainer, and recals the interdict quoad ultra; but prohibits the clerk from giving out this passed bill, for the purpose of expeding the letters, till the first sederunt day in November, that the respondents may have an opportunity to reclaim; and, provided a reclaiming note be then lodged, till the same is disposed of.-Note.-The Lord Ordinary has not thought it necessary to consider the question, how far the practice of working a quarry is in general within the powers of a proprietor in a commonty, or what may have been the usage in this particular case; because, supposing this to have been a legal act, while no process of division had been raised, he is of opinion, that after such a process had been instituted, and has advanced to an actual allotment by a commissioner, it would be most unreasonable to allow such an interference with the solum of the portion set apart to one of the joint owners. But the interdict asked in the bill is too broad."

Thereafter, Lord Newton, Ordinary,

"2d July 1830.-Continues the interdict, declares the same perpetual, and decerns: Finds, suspends, interdicts, and decerns and declares accordingly: Finds the suspender entitled to expenses," &c.

The respondents reclaimed.

Lord Balgray.-The use here taken of the common was not an ordinary use of the surface at all. The stones might have been of great use to the proprietors of the different lots, for the purpose of enclosing. The right of common property gave no right to the respondents to take away stones. The interlocutor was perfectly right.

The Court adhered.

Authorities for Suspender.-Campbell v. Campbell, 24th January 1830. Robertson v. Duke of Atholl, 22d May 1810.

First Division.-Lords Ordinary, Newton and Moncreiff.— Act. Ad. Anderson; Patrick Pearson, Agent.-Alt. Cuninghame and Sandford; Alex. Shepherd, Agent.-D. Clerk.

8th February 1831.

No. 215.-J. & L. BOOTH, Pursuers, v. MRS BLACK & HUSBAND, Defenders. Settlement to Children-Conditio si sine liberis-Held, that the conditio si sine liberis is implied in a family settlement to children.

This case embraced a great many specialties, out of which various pleas arose. In particular, the Court were satisfied that the settlement in question contained a clear expression of will, that all the members of the family, whether children, or grandchildren representing them, should be equally benefited. But at the same time, they clearly recognised the legal principle, that the conditio si sine liberis was implied in family settlements to children.

Authorities for Pursuers.-Mathieson v. Mathieson, 20th November 1756; Mor. 11,453. Bankton, I. 1. 9. 6. Ersk. III. 8. 46. Yule v. Yule, 20th December 1758; Mor. 6400. Watt v. Jarvey, 30th July 1760; Mor. 6401. Jarvey v. Watt,

7th January 1762; Mor. 8170. Oliphant, 19th June 1793. Colquhoun v. Campbell, 5th June 1829, Sh.

Authorities for Defenders.-Wood v. Aitchison, 26th June 1789; Mor. 6602. Magistrates of Montrose v. Robertson, 21st November 1738. Mackenzie v. Legatees of Holt, 2d February 1781. Wallace, 28th January 1807. Nelson v. Bail

lie, 4th June 1822, and Cases there. Christie v. Paterson, 5th July 1822, and Cases there. Colquhoun v. Campbell, 5th June

1829.

Second Division.-Lord Ordinary, Medwyn.-Act. Skene, Moir.-All. Solicitor-General (Cockburn,) Monro.-H. Inglis and Donald, W. S., and Patrick Irvine, W.S., Agents.-Mr Thomson, Clerk.

8th February 1831.

No. 216.-COLDSTREAM & COMPANY & PARTNERS, Pursuers, v. ROAD TRUSTEES of DUMFRIES & ROBERT THRESHIE, Defenders.

Road Trustees--Clerk Damages-59 Gco. III. c. 3.-4 Geo. IV. c. 49, sec. 16.-Held competent to pursue a new set of road trustees, under a new Act of Parliament, by their clerk, for damages arising out of an act done by a former set of trustees under an expired Act of Parliament, under which the same person had been clerk.

In November 1829, the pursuers brought an action against the defenders, setting forth, that Scales, a partner of the Company, had, in May 1829, when riding in a gig between Langholm and Annan, come against a chain stretched across the road by the trustees, by which collision his horse, gig, &c. had been injured to the extent of £56, 16. 6., and he himself hurt and alarmed-and concluding for damages accordingly; but not setting forth that the chain had been thus illegally placed. The defenders stated, That the chain was at a check-bar, duly authorised and regularly erected, and had, on the evening libelled, been stretched across the road by some boys: That those in charge of the roads were acting under a special act in 1819, but that, on the 1st of June 1829, a new statute had repealed it, and appointed a new body of trustees; and that the only person cited was Threshie, who was appointed under the new act in 1829. They pleaded-That the proper parties, viz. the trustees at the date of the accident, had not been called: That the summons was irrelevant, as not alleging negligence or wrong: That the then defenders were not liable for the acts of their predecessors, especially as no claim had been constituted before their entry to office; and that, even supposing the claim good, it could only be made upon the particular funds of that district, of which none then existed, and could not be drawn from other funds, or from the defenders personally. The act 4 Geo. IV. c. 49, sec. 16, enacted, "That the trustees of every turnpike road may sue and be sued in the name of their clerk or treasurer, for the time being, and that no action to be brought, or commenced by, or against any trustees of any turnpike road, by virtue of this, or any other Act of Parliament, in the name of their clerk or treasurer, shall cease by the death or removal of such clerk or treasurer, or by the act of any such clerk or treasurer, without the consent of the said trustees; but that the clerk or treasurer for the time, to the said trustees, shall always be deemed to be the pursuer or defender (as the case may be,) in every such action or process: Provided always, that all expenses of process or proceedings so incurred by such clerk or treasurer, shall be reimbursed and paid out of the trust-funds of the turnpike road for which he shall act."

The Lord Ordinary allowed an amendment of the li

bel, by which the pursuers averred illegality and negligence in the conduct of the defenders, and inserted the following:

"That the party who is bound to make such reparation to them, is the Road Trustees of the county of Dumfries, through whose wrong and negligence the said injuries were created as aforesaid: That the said road trustees consist of a public body, which has perpetual endurance, and which existed and acted at the time when the said injuries were sustained, in virtue of the statute passed in the 59th year of the reign of King Geo. III. cap. 3, entituled, an Act for making and maintaining certain turnpike roads within the county of Dumfries, and the other highways, bridges, and ferries therein; and for the more effectually converting into money the statute labour in the said county;' and in virtue of an act passed in the 4th year of our reign, cap. 49, and other statutes for preserving and managing highways in Scotland: That in virtue of the same general statutes and another statute passed in the 9th and 10th years of our entituled, an Act for making and maintaining reign, cap. certain turnpike roads within the county of Dumfries, and the other highways, bridges, and ferries therein; and for more effectually converting into money the statute labour in the said county,' the road trustees for the said county of Dumfries still continue to exist and act as the same public body, and are bound to pay the debt incurred to the pursuers, as reparation and a solatium for the foresaid injuries: That, at all events, the said trustees who were existing and acting at the date of the foresaid injuries, still continue liable to pay that debt to the pursuers: That, by the said general turnpike statute, regarding roads in Scotland, passed in the 4th year of our reign, cap. 49, and likewise by the said two statutes, relating to the roads in the county of Dumfries, passed in the 59th year of the reign of King Geo. III. cap. 3, and in the 9th and 10th years of our reign, cap. it is provided and enacted, that the said road trustees may sue and be sued in the name of their clerk or treasurer, for the time being: And further, by the last mentioned statute, it is enacted, that the clerks, surveyors, collectors, and all other oflicers, excepting the treasurer who had been appointed under, and employed in the execution of the said previous act, passed in the 59th year of the reign of King George III. cap. 3, should respectively continue to exercise their offices under the said act, passed in the 9th and 10th years of our reign, cap. until they should respectively be displaced or removed by the said trustees, or be incapable of executing their offices: That Robert Threshie, junior, writer in Dumfries, was the principal clerk of the said road trustees, who were existing and acting at the time when the foresaid injuries were sustained, and he still continues to be the principal clerk of the road trustees who are now existing and acting."

In their amended defences, the defenders, besides denying the allegations in the amendment of the libel, added, that those in charge of the road were at the time acting under a special statute for making and maintaining certain turnpike roads in the county, which provided,

"That every person in his own right, or in the right of his wife, in the actual possession or enjoyment, as proprietor or liferenter of the dominium utile of lands lying in the county of Dumfries, valued in the tax-roll of the said county at one hundred pounds Scots or upwards, or of lands or houses situated therein, or in the several burghs therein, worth of real rent yearly the sum of one hundred pounds Sterling, and all and every the eldest sons of such proprietors and liferenters, and one guardian, or tutor or curator, or trustee of every minor, possess. ed of the aforesaid qualification, &c. should be trustees for executing the act,"

and named certain other persons as trustees: That the new act altered the trustees, roads, &c.; and, while imposing certain debts on the new trustees, remained silent as to any transfer of liability from the wrongs of the former trustees. They pleaded-That

it was impossible to gather from the summons which trustees were pursued, or in what capacity Threshie was cited: That road trustees formed no permanent body: That Mr Threshie was no longer trustee under the former statute: That there was, under the new act, no right to cite the trustees by their clerk: That if Threshie was pursued as under the new trustees, the old trustees should have been called for their interest: That the present trustees were in no sense liable: That there had been no negligence; and that the claim could not be taken out of any but the particular funds of the particular district. The Lord Ordinary (17th December 1830,) dismissed the action, with expenses.

The pursuers reclaimed. At advising,

The Lord Justice-Clerk would give no opinion on the merits. He did not understand the amendment. But he could not throw out the summons.

Lord Meadowbank saw that, however irregular it might be to call the old trustees, Threshie had been called as the clerk of the expired trust.

The Court recalled, and remitted to proceed.

Second Division.---Lord Ordinary, Fullerton.-Act SolicitorGeneral (Cockburn), Skene, Marshall.-Alt. Dean of Faculty (Hope), Gr. Bell.-A. Snody, S. S.C., and Wm. Stewart, W.S., Agents.-Mr Thomson Clerk.

8th February 1831.

No. 217. INGLIS & Co. v. LANE & Co. Admiralty Court-Transmission of Causes-Recal of Interlocutor-An interlocutory judgment having been pronounced by the Judge-Admiral in an Admiralty cause, and the record having been afterwards closed; and the Admiralty Court having thereafter merged in the Court of Session-Held, that the Lord Ordinary had not power to review that judgment without the consent of parties.

Second Division.- Lord Ordinary (Reporter), Medwyn.Counsel-Dean of Faculty (Hope,) Marshall.-John Rymer, W.S., and J. Harvey, Solicitor, Agents.

8th February 183 1.

No. 218. JoHN Low, Advocator, v. ARCHIBALD FARQUHARSON, Respondent.

Bank-Cautioner-Relief-Held, that a cautioner in a cashcredit, being threatened with diligence for payment of the whole sum due, is entitled to insist that his co-cautioner shall pay up his share to the Bank.

In December 1827, the advocator brought an action before the Sheriff of Kincardineshire, against the respondent, setting forth-That they had signed a joint bond of caution, in a cash-account for Innes, to the extent of £500: That Innes had exhausted the account and left this country: That the advocator had been frequently threatened with immediate diligence for payment under the bond in full-and concluding that the respondent, whom he represented as vergens ad inopiam, should pay his half. The respondent, in defence, pleaded-That the advocator had not shewn that the bond was due, or that he had paid any part of it: That he was under no such obligation of relief to the advocator, as libelled. The Sheriff, (8th May 1830,)

"Having considered the process, in respect the pursuer has not paid the balance of the bond in question to the Bank; Finds he is not in a situation to insist in this action; and therefore, in the meantime, sists farther procedure in this action."

And on the 26th of May 1830,

"Having considered the reclaiming petition for the defender;