if it must be more, I shall send it with the bill for the next instalment at six months, on commencing cutting, which I will do in a short time. I have informed Mr Fenwick, according to your orders, that I have accepted your offer, which I now do, leaving the above point to be disposed of as to yourselves seems meet; and I humbly hope it will be granted, as the buyer in such a transaction as this should have the cast of the bauk (balance), as we say in Scotland, on his side, and which I have no doubt will be acceded to in this. Writing Mr Burrell, I have mentioned my being favoured with your letter and my acceptance, trusting to his goodness in giving this discount. And I am sure it must be agreeable to all parties that our valua tions were so near one another on the whole. Your reply in the course of a few posts, as to my humble request, will oblige," &c.

The respondents' factor replied, 5th May 1818:

"I should have acknowledged the receipt of your's, of the 30th ult., inclosing Perth Bank note of £350, yesterday, but was anxious to see Mr Burrell on the subject previously to writing. His opinion (as well as my own) is, that you have a bargain of the wood at the price I have offered it to you; and when I made such valuation, it was taking it at its lowest average. Upon these grounds, no deduction can be made; and I presume, as you mention you will add the sum deficient in this first payment to the first bill at six months, viz. £58, 13, 4, the affair is settled. The persons who have measured the plantations and trees, Mr Duff and Mr. P. M'Arthur, will attend a meeting at the Strelitz Wood, that they may point out the exact lines which they have sent up to me, in order, previously to cutting any timber, that the quantity may be ascertained, so as to form an average price for those acres we propose to reserve for shelter. I write to Mr Fenwick to give directions accordingly; and I am," &c.

The meeting took place, and the screen or belt of wood was marked off in presence of the appellant. The first five instalments of the price were regularly paid, but the appellant refused payment of the last, alleging that the whole wood in Strelitz plantation remaining uncut, had been sold to him, not under reservation of the screen, but merely under the condition that the respondent should be entitled to purchase back from him, at his own price, as much of the plantation as was necessary for that purpose. The price demanded by the appellant was £40 per acre, while he only paid about £12. The respondent, in 1821, presented an application to the Sheriff, for a remit to land-surveyors to inspect and measure the screen, that its extent and value might be ascertained; and for decree against the appellant for the balance due under the deduction of that value, and for removal of the wood within the time specified in the contract. The Sheriff remitted to a land-surveyor to report. He

submitted three views:

"1st, He estimated the value of the belt, as in proportion to the extent of the wood admitted to have been sold, at the price of £210. 2dly, Its value, as in proportion to the extent of the whole plantations, including the part in dispute, was stated at £192-and, 3dly, The actual value of the wood, as then standing, was estimated at £376."

Among others, the following production was made. It was not signed by any of the parties.

"Basis of agreement with Mr G. Pentland in London, and L. Kennedy-Strelitz Wood, Stobhall.To be cleared in three years. To be paid by bills at six months, equally divided, or cash, the first in advance. The part reserved for screen to be deducted in proportion to the measure, from the value of the whole. With Mr Geo. Pentland of Perth."

The Sheriff pronounced this interlocutor (12th December 1821),—

"Having advised with the Sheriff-depute: Finds that the letter of the pursuer's commissioner, of date 21st April 1818, refers to "the agreements drawn out by us when you were in London last," and the answer by the defender, dated 30th April, acquiesces in the statement, that there were such agreements: Finds that the memorandum produced by the pursuers, is stated by them to be the agreement referred to; aud although this is disputed by the defender, he does not say what these agreements were, or in what the memorandum differs from them; and, therefore, and as the particulars mentioned in said letter seem plainly to bear reference to said memorandums, holds that this is the agreement alluded to: Finds that the bargain was, that the wood was to be cleared off in three years from the commencement of cutting; and as it appears that the cutting down commenced on the 17th June 1818, ordains the defender, without delay, to complete the cutting of all the wood within the reserved screen, and marked red on the plan in process: Finds that the wood reserved for the screen is to be deducted from the last payment, in proportion to the measure, from the value of the whole wood; and, in order to ascertain what was the extent of wood actually bargained for between the parties as sold, allows the pursuer to prove that at the communion, which took place when the memorandum was made out, the abstract of the quantity and size of the timber in the Strelitz plantation, produced, was shewn to the defender as the basis of the communion about the price; grants diligence," &c. To this interlocutor the following note was adjected :—" There is a strong circumstance in favour of the plea of the pursuer relative to this point, on which the proof is allowed, which I do not observe noticed in the pleadings, that the first offer made by Mr Pentland, dated 13th January 1818, is £10 per acre, or £2000 for the whole. Now, as the wood alleged by the pursuer to be sold, consists of 203 acres, it would appear that this was all which, at the time, Mr Pentland contemplated as within his offer. But as this previous offer forms no part of the bargain afterwards concluded, it cannot be held to be decisive on the point."

66

A proof was led, and on 3d July 1822, the Sheriff,

Having advised with the Sheriff-depute, who advised the process: Finds that the old wood, tinged red on the plan in process, is said by the pursuers, and not disputed by the defender, to be separated from the young natural wood which adjoins to it by a feal dyke: Finds that the screen of wood, which the pursuers were entitled to reserve, was marked off in presence of the defender, and goes round the said old wood, and is bounded by the said feal dyke: Finds, under all the circumstances of the case, that the defender must have known that the wood sold to him was the old wood included within the reserved screen, and did not include the young natural wood, or the old wood beyond it, tinged yellow on the plan; and therefore, finds the defender entitled to deduction from the price of the wood, of the sum of £210, on account of the reserved screen, and so decerns against the defender for the sum of £198, 13. 4. as the amount of the last instalment of the price, after deduction of the above sum, with interest from 20th January 1821, and decerns also against the defender for the expense of extract."

The appellant advocated. The Lord Ordinary remitted simpliciter to the Sheriff. In this state of matters the appellant brought an action of declarator and damages before the Court of Session, against the respondents, concluding that his purchase should be found to have embraced the whole wood, both young and old; and that the respondents should be found liable to him in £500 of damages, on account of their interference and non-implement of the contract. processes were conjoined; and the appellant having reclaimed,

The

"The Lords having advised this petition, with the answers thereto, together also with the summons of declarator and damages, at the instance of the petitioner against the respondents: They adhere to the interlocutor complained of, and refuse the desire of this petition; and in the process of declarator and damages, they assoilzie the defenders from the conclusions of the

libel, and decern; and in that process, find the petitioner (the pursuer) liable in expenses; allow an account thereof to be put in, and remit the same, when lodged, to the Auditor of Court to tax the same, and to report thereon."

Pentland then brought up the case by appeal to the House of Lords, pleading-1. That, by the contract of sale between the parties, he acquired the right and property of the whole Strelitz plantations, without exception, subject only to the right specially reserved by the respondents, of selecting a screen or belt of wood, of definite extent, for their own use. Under

that qualification, the whole wood comprehended within the fence or pailing, and passing under the name of the Strelitz Wood, or the Strelitz Plantations, was purchased by, and now belonged to, the appellant.II. Under a just construction of the contract, the appellant was entitled to be paid for the reserved screen, according to the actual value of the wood reserved by the respondents; and he was not bound to accept of payment according to the extent of surface occupied by it, as compared with that of the whole wood sold. The respondents maintained-That the extent of the subject sold was sufficiently pointed out by the real evidence in the cause, the documents and correspondence of the parties produced, and depositions of the witnesses examined; and that the value of the wood reserved for the belt had been deducted from the last instalment of the price, on a just and proper principle.

Lord Wynford.-My Lords, I owe to your Lordships an apology for not being ready to give my opinion in this case yesterday, and, by so doing, avoid wasting a considerable portion of your Lordships' time. I have been misled by the prejudices of an English lawyer in this case. I have no doubt I shall soon forget the English law. Whether I shall acquire a knowledge of the Scotch law, it is not for me to say. Objections were taken yesterday, and most powerfully argued, against the evidence received in the cause, and also an objection, that the judges had taken upon them to decide a question of fact, instead of leaving it to a jury. I am decidedly of opinion, that the evidence received ought to have been rejected; and it would have been rejected in this country in a minute. I allude to the evidence of the document found in London, by which a price is set upon the acres; and I allude to the questions asked, after the man had sworn he heard nothing;-it being permitted to ask him, Can you say such a thing did pass? when he had given an answer before, which shewed he was clearly incompetent to answer the first question. I agree with the learned counsel for the appellant, that the extent of this wood was a question of fact that ought to have been sent to a jury, but it seems that the parties did not ask to have it sent to a jury; and if they did not ask to have it sent, it was competent to the Court either to send it to a jury or not; and they took upon themselves to decide it, not being asked to send it to a jury-and I think they have decided it rightly. When I say that I think they have decided it rightly, 1 mean, that, upon the evidence that was admissible, rejecting all the evidence I have alluded to, I think their decision is right. I have known some exceptions to this rule in England, that where it has been most apparent that the verdict must have been the same way, if the evidence received had not been received, the Court have refused a new trial. Those are exceptions. The general rule is, where evidence has been received that ought not to have been received, as the Court cannot say what effect it has had upon the jury, to send it back to another trial. But there is a

material difference between the case of the jury Court and the Court of Session-the jury are the judges of the fact, and the Judges cannot know the effect the evidence has had upon their minds. The Judges in Scotland are Judges of the law and of the fact; and I believe in Scotland, as in Courts on the Continent, though they have, with certain exceptions, the same rules of evidence that we have here, they do not so rigidly adhere to them, from the whole power being in their own hands, as to the effect to be given to the evidence. But the way I shall put this case to your Lordships is, to put it upon evidence that is admitted on all hands to be good; and, I say, putting it upon that, the judg ment of the Court below is sustainable. I do not put it strong enough, when I say that it is sustainable; but if it was sent down again, and a different judgment was obtained, that judgment would work gross injustice. Now, my Lords, what are the questions? One question was to the extent of the wood purchased; that is, undoubtedly, as I have stated, a question of fact. The second question is,— Whether the allowance for the belt or screen was to be paid by acreage merely, or whether it is to be made,—that is a new point made here, upon which I shall say a word byand-bye, whether it is to be made by value as well as measure? Now, upon the first point, as to the quantity purchased, I do not think it possible for any man to entertain a doubt. On the part of the appellant it is contended, that he purchased 270 acres. On the part of the respondent, it is said that he has purchased 203 acres; but is there not one fact in this case decisive as to the quantity purchased? The first offer made by the appellant is an offer of LIO an acre; and how much does he offer? That which brings it exactly to the quantity of 203 acres. It is quite clear, therefore, when they were calculating the price per acre, it was understood, on each side, the quantity was what I have mentioned. Then they say, to get rid of the difficulty, let us take the other sum, and at L12 an acre they make 203 acres. After that, it is quite impossible for any human being to doubt that 203 acres was the quantity, and not 270. But there is another very strong circumstance. The 203 acres are bounded by the road; and, what is more strong than that, there is the moss-dyke. For what purpose was that put there? Not to keep cattle going from one part to the other, for cattle were not put in-it was only for the boundary. The part above the dyke was plantation solely; the part below the dyke not plantation. I am of opinion that 203 acres were purchased; and these the Court were of opinion the party was entitled to receive. Then, that brings us to the other question ; and my opinion is formed upon that, not by going out of the contract-I take it upon the contract itself. I agree with Mr Brougham entirely, that where a contract is reduced into writing, any previous conversations or writings, except as they are con firmatory of the written contract, ought to be rejected, for this plain reason, that the parties to the contract talk about a thousand different things that ought not to have any weight upon the contract- because each party might have given way. You are not to attend to what passes before the contract, but what passes when it is reduced into writing. Now, let us look at what is the contract, as it appears by these two missives. This is the proposal of Lord Gwydyr's agent. From the estimate of the quantity and size of the timber on the Strelitz Plantation, it appears that the amount of such valuation, at the lowest average, would be L2452; that is, taking it at L12 an acre instead of L10, offered by the letter immediately preceding,-" for which sum I now make you the offer of that wood to be cut, and paid for according to the agreements, drawn out by us when you were in London last, that is, the whole to be cleared off in three years from the commencement of the cutting." Upon this I should certainly say, that there was no other

agreement or agreements that could be adopted into this, but what related to the cutting in three years. Secondly, It is to be paid by bills at six months, dividing the whole into six payments, of which the first payment to be paid in advance, and a bill given at six months for the next pay. ment, and the wood reserved to be deducted at payment of last bill. Thirdly, The screen of wood to be not more than 25 Scotch acres, nor less than 15 acres, and chosen by the proprietor, or his agents. Fourthly, A third of the whole plantation to be cut and cleared yearly, and that in one part only." Then, the answer to this is: "I was favoured with your's of the 21st current, making me an offer of the timber on the Strelitz Plantations at L2452 Sterling. Although I have again perambulated them," so that this gentleman undoubtedly knew the extent of the wood, and what he was purchasing," I really think the same is high." That he would say, if they had asked him L5 an acre, I dare say, as we may collect from his legal reason; but I shall throw myself entirely into your hands; and when you consider it is leaving you without further trouble," he might have added-and making an amazing good bargain for myself" I hope both Mr Burrell and you will be disposed to give me an abatement, and make each payment of the six, L350, which would make L2100," instead of L2452. "That I leave entirely to Mr Burrell's consideration and your's; for a person taking off-hand such a bargain should have a little latitude, and there is considerable risk. Please receive enclosed a Bank draft for L350, payable to you, or order, which would be the first instalment of the price, if allowed to be L2100; but if it must be more," it you are so hard-hearted as to exact L12 instead of L10, for that which I afterwards tell you is worth L40, "I shall send it with the bill for the next instalment, at six months, on commencing cutting, which I shall do in a short time,"—that is all that is material. The question is, Whether there is a contract to pay according to price, or according to value, upon the face of this instrument? Let us see what this gentleman has contended for. He contended, afterwards, it was to be taken according to value, but not the value to be found, comparing that contained in the bill with the other part of the wood, but according to the market price-and he says it is L10. It appears he had bought it at L12; the point he is complaining of now, is entirely an afterthought, or attempt he makes, in the first instance. Having purchased at L12 an acre, he thinks he is to sell him back 13 acres at L40-a more iniquitous attempt was never made. The argument of Mr Brougham, and the excellent argument of Mr Romilly, which I heard with great pleasure, considering who he is connected with, and whom I much respect, would be deserving of great weight, if there was a reservation of the 18 acres to be taken out of any part of the property; but that is not so:—you are to take 15 or 25 acres from the belt, to form a screen round the estate. It was known from what part of the wood it was to be taken; and if this gentleman knew that, and that what was likely to form a screen, was more valuable than the rest, after his perambulation he would have said, you are going to make a screen, and that which you are going to take is of much more value than any other part, and you must pay me much more for it. He does not say a word of the kind-and it is clear he considered the belt and the other part of equal value; probably he considered the belt of inferior value, for as the belt formed a screen to the others, the trees comprised in the belt might not be so large as the trees screened by the belt. But according to this contract, and the conduct of the parties upon it, if, when forming this belt, the respondents' stewards had dipped in further than was necessary for the belt, the other party would have had a right to object and say, you are not taking it for a belt, but

because they are large good trees, all which is not consistent with the terms and spirit of the contract, you are only to take that which is necessary to form a belt, and if that objection had not been entered into, and he had gone into a court of justice, and had said, under the pretence of a belt, by making an angular line, you have embraced trees that cannot be necessary for the belt; if that had occurred, he would have made a good case, and the Court could have decided it, and could have done justice between the parties; but he makes no objection;-he is present at the time the belt is staked out, and the witnesses say they heard no ob jection made, but if any thing unfair had taken place upon the occasion, would not this English gentleman, (and I see they give us southern people credit for too much sharpness; I think it used to be the other way,) would not this English gentleman have sent a written notice and said, you have gone beyond the extent you had a right to go to. I say, he has completely acquiesced in taking this belt; it was fairly set out, and if it was fairly set out as a belt or screen, it is to be taken as of the same value as the other; and if we were to send it down to an inquiry, whether it was of equal value with the other, I rather think that this gentleman would not then have so large an allowance as he is now entitled to, but it would be prolonging litigation; and I am exceedingly sorry to see that a small question of this sort has been in dispute from the year 1819 or 1820, down to the year 1830, therefore we will not indulge Lord Gwydyr, if he was to ask it; and it may prejudice the other party, by sending it down again to make the inquiry, Whether the belt was of equal value with the rest of the planta tion? My Lords, I think, looking at this contract, and never taking our eyes off it, confining ourselves to that to repeat the expression I made use of the other day-which is to be found within the corners of the contract, it is evident that all the 203 acres were regarded by both the contracting parties as of equal value, and that it therefore applies to the only mode by which the apportionment can be made. When this gentleman takes his objection afterwards, his objection is, that he ought to be paid at the rate of L40 an acre, and that he had bought the whole, whereas he had only bought the whole, except such part as Lord Gwydyr, under the instrument, had a right to reserve; that remained in Lord Gwydyr, and did not vest in this person, to be sold back at any fairish price he chose. He says, having bought the whole at L12 an acre, I am generous enough to offer to sell you these 18 acres at L40 an acre. He desires a valuation to be made, and there is a valuation made under the order of the Court. In two or three years the trees could not have much improved, at least, not to the extent of the difference between L12 and L40; but the trees are valued which he had bought at L12 an acre, at L376, which is above L20 an acre. This gentleman is not content with that, but he is desirous of squeezing something more out of Lord Gwydyr, with whom he had made a most advantageous bargain. I humbly, therefore, submit to your Lordships, that this appeal ought to be dismissed, and dismissed with L100 costs.

Appeal dismissed with £100 costs.

Appellant's Authorities.-Gordon v. Hughes, reversed on Appeal. Gibson v. Magistrates of Edinburgh; Dow's Rep. II. p. 301.

Sheriff of Perthshire.-Lord Mackenzie, Ordinary Second Division. Meggison & Poo'e, Appellant's Solicitors.-Spottiswoode & Robertson, Respondents' Solicitors.

Printed by M. ANDERSON, Law-Printer.

COURT OF SESSION.

INNER-HOUSE.

23d November 1830.

No. 33.-JOHN M KENZIE, W.S., Pursuer, v. MORISON'S TRUSTEES, Defenders.

Warrandice-Relief-Mutual Gables-The proprietor of certain feus, having become bound in one of the feu-contracts to insert a clause in the feu-contract of the adjoining feuar, obliging him (the adjoining feuar) to pay half the expense of erecting the mutual gable betwixt the feus; and having omitted to insert this clause, and the first feuar having brought an action against the adjoining feuar for payment of half the mutual gable, founding both on the feu-contract and on the use made of the gable; and the Court haring repelled the first ground of action, but sustained the second-Held, that the first feuar had a right of relief against the proprietor of the feu, for the expenses incurred in maintaining unsuccessfully the first ground of action.

Alexander M'Kenzie, builder, who had taken, jointly for himself and John Hossack, from Morison's Trustees, the heritable proprietors of St Cuthbert's Street, Edinburgh, a stance or feu in that street, numbered 44, applied about the same time (May 1825), and took for the pursuer, John M'Kenzie, W.S., the adjoining stance, numbered 45. The feu-contract, in favour of John M'Kenzie, contained this clause : "Declaring that the said John McKenzie shall have no claim upon the said trustees, for any part of the expense of erecting the mutual gables of the tenement to be built on the area hereby disponed, or the mutual division-walls of the back ground; but he shall have power to add twelve inches from the adjoining feus for each mutual gable, and shall be entitled to claim the expense of building the half of said gables, with the chimney stalks, and of the said division-walls, from the feuars of the adjoining lots, as the same shall be ascertained by two builders mutually chosen by the parties, which shall be payable within one month after the said gables and division-walls are completed, if the said adjoining lots are then feued, or otherwise within one month after such adjoining lots are fened, and shall bear interest thereafter till paid;which gables and division-walls shall thereafter be the mutual property of the said John McKenzie and the said adjoining feuars, and apheld at their mutual expense:" That this feu-contract, and whole clauses and stipulations thereof, the said trustees bound themselves "to warrant to the said John M'Kenzie and his foresaids, from their own proper facts and deeds."

John McKenzie employed the said Alexander M'Kenzie to build a house upon this fen, which was completed about 30th December 1825. Alexander M⭑Kenzie also raised, at the same time, part of the front wall of a house upon his own feu, which rested upon the mutual gable erected by John M'Kenzie, but did not complete it. After his house was erected, John McKenzie got the mutual gable, erected by him adjoining to Alexander M'Kenzie and Hossack's feu, valued by a measurer, in terms of the clause in his feu-contract, and then brought an action against them. for half the expense. Hossack did not appear in the action, but Alexander M'Kenzie gave in defences, and pleaded that his feu-contract contained no clause obliging him to pay any part of the mutual gable to John M'Kenzie. He admitted, however, that the part of the house which he had erected on his feu rested upon the mutual gable in question. The Lord Ordinary (19th December 1828), pronounced this interlocutor:

"The Lord Ordinary having heard parties' procurators, and thereafter, in presence of the parties, inspected the building, Finds, that there being no obligation in the feu-contract of the defender to pay the half of the mutual gable built by the pursuer, he is not liable to make such payment, in terms of the clause in the feu-contract granted to the pursuer: But finds, that although the defender has not built any house upon the feu adjacent to the pursuer's, he has made use of the said mutual gable, by attaching to it a part of the front wall of the house, which is to stand on said feu, and which was built by the defender at the same time that he built the pursuer's house for him, and therefore that he is liable on this ground to pay for the half of the said mutual gable."

Both parties reclaimed from this interlocutor (which was adhered to by the Court, 18th November 1829); and immediately after it was pronounced, John McKenzie brought the present action of relief against Morison's Trustees, on the narrative that they had destroyed one of his grounds of action against Alexander M'Kenzie, by failing to insert a relative clause in his feu-contract, obliging him to pay to the pursuer the half of the expense of the mutual gable: That the Inner-House might possibly alter the Lord Ordinary's judgment, and sustain Alexander M'Kenzie's defences in toto, in which event the defenders must be liable, in terms of the clause of warrandice in the feu-contract, to pay the expense of half the mutual gable: That at all events, the defenders were bound to relieve the pursuer of any expenses that might be awarded against him for insisting against Alexander McKenzie, upon a ground of action which the negligent omission of the defenders (Morison's Trustees) had rendered nugatory. Morison's Trustees defended, and pleaded, inter alia,-That at the time when the pursuer's contract was executed, he must have considered the clause in that contract as constituting a sufficient claim against M'Kenzie and Hossack, without any reference to the existence of a corresponding clause in their contracts binding them. If the pursuer, therefore, understanding that McKenzie and Hossack's contract might contain no clause bind ing them, contented himself with the clause in his own contract, he took the whole burden of making his claim good upon himself, to the entire exoneration of the defenders, more especially as it was particularly provided that he should have no claim whatever upon the defenders: That the said clause in the pursuer's feu-contract was the mere recognition of an obligation, competent against the adjoining feuar at common law: That the pursuer already held a final decreet in absence against Hossack for the sum he sues for in the present action: That although the defenders guaranteed a claim against the adjoining feuars, they did not guarantee the recovery of that claim. The Lord Ordinary (22d May 1830), pronounced this interlocutor:

"Finds, that it is an implied condition in the feu-contract between the pursuer and the defenders, that the feuar of the lot adjoining to that which the pursuer feued, should be taken bound to pay half the expense of building the mutual gable, chimney stalks, and division-walls, to be ascertained in the manner, and payable at the time mentioned in the said contract: Finds, that the defenders, having omitted to insert an obligation to that effect in their contract with Alexander McKenzie, the feuar of the lot adjoining to that of the pursuer, are liable to relieve the No. III.

pursuer of the expenses which he incurred in his action against the said Alexander M'Kenzie; and therefore finds in terms of the first conclusion of the libel, and allows an account of the said expenses to be given in; but, in respect that Alexander McKenzie has been found liable for half the expense of the gable, in consequence of having taken benefit by it to a certain extent, finds it unnecessary to consider the second conclusion of the libel: Finds the pursuer entitled to expenses, and remits the account, when lodged, to the Auditor, to be taxed-Note.-Expenses might have been refused to the pursuer in his action against M Kenzie, on grounds independent of the difficulty of the question; but no allegation to that effect appears on the record."

The defenders reclaimed, and maintained that, according to the decision of Inglis v. Anstruther, no claim of relief was competent here, there being no actual eviction of the pursuer's right: That when the action was brought against Alexander M'Kenzie, it should have been confined to the ground of action, as sustained by the Lord Ordinary in the last part of his interlocutor, in which event no expenses would have been incurred, and no relief necessary: That the pursuer had full opportunity of knowing the groundlessness of his action in regard to the first plea repelled by the Lord Ordinary.

Lord President entirely concurred with the Lord Ordinary on the law of the case. If any improper expenses were incurred by the pursuer in conducting his action, these, of course, would be disallowed.

Lord Balgray concurred, and thought that the pursuer had a right to presume that the defenders would do their duty by inserting the clause. They did not do it, and must be liable.

Lord Gillies thought it necessary to state, that, in his opinion, the defenders had no case.

First Division.-Lord Ordinary, Corehouse.-Act. Keay, M'Dougall. Alt. Skene, J. Browne.- Party, Pursuer's Agent. -Gibson-Craigs, Wardlaw & Dalziel, W. S., Defenders' Agents. -Sir W. Scott, Clerk.

23d November 1830.

No. 34.-JOHN M'KENZIE, Suspender, v. GEORGE SMITH,

Charger. Bill-Protest-Notary-Held to be no valid objection to the protest on a bill, that the Notary who protests it was at the time a partner of the Company who drew it- --an indorsee from them—and an indorser without recourse to the protester and charger. Although this case embraced various points, that to which the attention of the Court was peculiarly directed was the question, Whether a bill had been legally protested? William Smith, notary, son of the charger, had been at one period a partner of Duguid, Ingram and Company, and although he sold his share to them in 1822, did not duly publish his separation. The Company, and William Duguid and Alexander Ingram as individuals, were sequestrated on the 13th of July 1827. William Smith appeared as agent. George Smith was the concurring creditor. The trustee reported, on the 22d of September 1827, an opinion of counsel, on the liability of William Smith as a partner. On the 15th of October 1827, William Smith was also sequestrated, but only as an individual. On the 28th of January 1828, he renewed an offer of composition of 2s 6d., as an individual and as a partner of Duguid, Ingram and Company, which was accepted. The charger became his cautioner, and he was discharged on the 31st of March 1828. His name appeared both as indorsee and as indorser for

value to the charger without recourse, on a bill for £29, 17s., drawn by Duguid. Ingram and Company, on the suspender, and dated 2d March 1827. The latter failed to pay. The bill was protested on the 13th of June 1827, at the charger's instance, by William Smith as notary. McKenzie suspended, and,

inter alia, pleaded-That as William Smith was a partner of Duguid, Ingram and Company at the date both of the bill, and of a previous bill which it renewed, he could not legally protest it as notary. The Lord Ordinary (17th December 1828), found the letters and charge orderly proceded. The suspender reclaimed. At advising, 12th December 1829, the Court ordered a specific condescendence and answers as to the facts out of which the above plea arose; and on the 5th of March 1830, ordered cases on the plea. On advising these,

The Lord Justice-Clerk had thought the point fairly worth inquiry,-nay, had at first been inclined to support the objection to the protest. But looking to analogous cases, and more especially to the opinions given in the case of Farries, it did appear dangerous to sustain such an objection, where there was no serious allegation of fraud.

Lord Meadowbank had read the papers in the case of Farries, and the notes of the late Lord Meadowbank, and found that in that case, Napier, the protesting notary, was to all intents and purposes the Bank itself. Yet even there the Court had thought it perilous to cut down the protest on such a ground. And, accordingly, they had decided the case on a totally different ground, viz. the want of a proper address on the letter of notification. Lord Cringletie could not see how far the danger arising from a decision against the protest might go.

The Court refused the note.

Authorities for Suspender-Leckie, 20th November 1627. Scott, 3d July 1628. Smith v. Farries, 9th June 1813. Russel v. Kirk, 27th November 1827; Thomson, p. 475; Bell's Com. II. 640, 5th edit. and Cases there quoted.

Authorities for Charger.-Russel v. Kirk, 27th Nov. 1827; Sh. VI. 133. Farries v. Smith, 9th June 1813. Douglas, Heron & Co. v. Alexander, 13th February 1781; M. 1606. Second Division -Lord Ordinary, Cringletie --Act. Skene, McDougall.-Alt. Jameson, Thomson.--George Munro, S. S. C., and James M'Cook, W. S., Agents.--Mr Thomson, Clerk.

23d November 1830.

No. 35.-DONALD M'AULAY, Complainer, v. J. M‘KENZIE, Respondent.

Process-Petition and Complaint-Malversation-Concourse— Held that a Petition and Complaint, the prayer of which sought for dismissal, or other punishment of a Sheriff-substitute, for malversation, and contained no private conclusion, although it did contain the alternative clause, to do otherwise," &c. was incompetent without concourse of the Lord Advocate.

For the facts and previous history of this case, see the former report, 10th March 1830, Vol. II. p. 328. At that date the Court delayed its decision, in consequence of certain new views in law having been stated from the Bench. The parties were allowed to alter their pleas accordingly. And at advising, the respondent pleaded-That as the Sheriff-depute was responsible for all the actings of his Substitute, he must be made a party: That as deprivation was sought, it could only be in modum pœnæ, to which no private instance was sufficient. The complainer pleaded-That a penal statute regarding the Sheriff depute laid down no form of process against the Substitute: That although malversation was complained of, it was so because the