respondent from the Right Hon. Charles Grant, his brother, being gratuitous, and granted with the view of supporting the political influence of the disponer, the sitting member, and then candidate for the county of Inverness, and under strong presumptions of confidence existing between the disponer and disponee, and the casualties and feu-duties thereby conveyed being quite illusory, and the disposition being defective in giving the right of entering vassals, does not confer on the respondent that unqualified and independent right, essential in a freehold qualification.II. The respondent is enrolled on part of the barony of Glenelg, which belonged of old to the Laird of Macleod, and which was entered in the valuationbooks in 1691, in two cumulos of £1508 and £700; and, so far as appears from the books, there never was division or splitting of these cumulos, there being any no entry in the cess-books of any separate valuations of the lands composing these cumulos until very recently; and although the respondent founds upon an alleged division of the cumulos in the year 1774, not then entered in the cess-books, that alleged division appears to have been quite irregularly and incompetently carried through, inasmuch as the two separate cumulos above-mentioned were thrown together into one cumulo of £2208, and this new cumulo, thus incompetently created, was divided generally over the lands.-III. Subsequently to 1691, and previously to the division thus alleged to have been made in 1774, part of the lands of Bernera, forming a part of that portion of the barony of Genelg on which the respondent is enrolled, was conveyed to Government as a military station, upon which barracks were erected; and although the ground so conveyed was considerable, and had a considerable salmon fishing attached to it, which was also conveyed, yet in the division of the cumulo valuation in 1774, no part of the valuation was apportioned to the lands so conveyed, but the whole of it was divided over the remaining lands, which thereby got more than their share of the cumulo valuation; and consequently, the lands on which the respondent is enrolled are stated at an exaggerated and untrue value, whereby they are made to appear capable of affording a freehold qualification, while, in point of fact, they would not have afforded a qualification, had the ground conveyed to Government received its just proportion of the cumulo.-IV. The said piece of ground was lately re-acquired by the respondent's author or his predecessor; but it was so re-acquired, on the condition that it should be in the power of Government to resume the same at any time during pleasure, and consequently a part of the lands of Bernera, essential in any view for making up the respondent's qualification, is held by a defeasible title, being resumable at pleasure, and that appears on the face of the charter and title itself.-V. The lands of Scolbeg and others, on which the respondent is enrolled, are not entered in the cess-books at all, as of any particular value, and no separate cess has ever been paid for them.-VI. The respondent claimed to be enrolled in general terms, without any limitation, and he was admitted to the roll in general terms, without limitation, although another person then stood enrolled upon these lands as liferenter, and still re

mains upon the roll as liferenter. The words, "as fiar, not to vote but in absence of the liferenter," &c. were added by the respondent and his friends, to the entry in the roll next day, which they were not entitled to do. The respondent pleaded-I. There is not even the semblance of any legal ground for the plea of nominality, nor is such a plea relevantly stated in the record. The facts condescended on in support of it are-That the right is gratuitous; that it is a bare right of superiority-and that the casualties are taxed to a nominal sum. But, though all of these circumstances were admitted, they do not amount to a legal objection. The other statements under this head are so vague and indefinite that no weight can be given to them.-II. The decree of 1774 not being charged with any informality, cannot be set aside upon allegations of iniquity or error, except in a proper process of reduction.-III. It is a mistake to say, that any separate cumulos were united by the decree. What the complainers erroneously call two cumulos were truly one cumulo, being the value of separate interests in the same lands. The valuation of the lands and heritages within the county of Inverness was finally adjusted in 1691, and in the valuation book of that year, the barony of Glenelg is entered as valued at £1508 and £700, the first of these sums bearing to be the value of the interest of the Laird of Macleod, and the second, the value of the interest of Lady Macleod, for her rent or jointure, making together, for their different interests in the same lands, £2208, the valuations of which different interests are to be counted as one cumulo.-IV. The objection as to Bernera is founded on a total mistake in point of fact, and is, besides, trivial and frivolous. No evidence is produced of the complainers' statements on this head. They have totally failed to shew any title in the Crown, either in 1692 or in 1774, when the valued rent was divided. The explanation of this transaction is as follows:-Prior to 1691, Government, with the consent of the Laird of Macleod, had assumed possession of part of the promontory of Kirktown on Glenelg, for the purpose of erecting thereon a military barrack, which was accordingly done. The complainers expressly admit that the barracks were completed in 1692. But as the general valuation of the county took place in May 1691, it is quite clear, that if the barracks were com pleted in 1692, the arrangements for ceding the ground to Government, and the other measures preparatory to such an undertaking at that period, must have been completed, and possession actually taken by Government before the month of May 1691. This the respondent avers was the fact; and in that case, as the valuation of the barony would not include the barrack-ground as part of it, so there could be no reason for allocating any part of the cumulo on that barrack-ground, in the division of 1774. Accordingly, the whole cess exigible on the cumulo valuation of the entire barony was paid by Macleod, down to the year, 1774, which is real evidence that the barrackground had not been included in that cumulo; or, in other words, had been in possession of Government at or before the month of May 1691. In 1774, when the Commissioners proceeded to divide the valued

rent of Glenelg, no title had ever been completed to the barrack-ground, nor, to this day, has infeftment been ever taken in favour of the Crown, on any conveyance to that ground; and while the records therefore shewed no title, all that the Commissioners could see or know was, that, de facto, the Crown was in possession of the ground, and barracks built thereon. On the other hand, the cess exigible on the £2208, the cumulo of the whole barony of Glenelg, had been regularly paid by Macleod from 1691, downwards. The Commissioners therefore seem to have held, either that the ground had been ceded to the Crown before the 1691, and, consequently, was not included in the cumulo, nor entitled to a share in the division; or that, if the Crown had assumed possession since 1691, still, as they probably did not consider that the Crown could be liable in cess, and saw that the whole had been paid by Macleod, they considered that the whole cumulo was still divisible among his lands. At all events, the proportion of valuation that could have fallen to the barrack-ground, was so perfectly trifling, that it was probably not considered worth the trouble of being taken into the computation. The barony of Glenelg contains upwards of 46,000 acres, and this barrack-ground consists only of 48 acres, the proportion of the valuation applicable to which would make an error of about £30 Scots, diffused over 46,000 acres, which is too trivial an error to have any effect.V. The decree of 1774, though otherwise objectionable, has been fortified by the long prescription, as well as by acquiescence and consent of parties, for sixty years ;the lands, as separately valued, having been entered in the cess books, and cess paid, conform to that separate valuation, besides enrolments of five freeholders in 1774, and of other five in 1814 and 1817, whose qualifications were never challenged.-VI. The complainers' plea, that the barrack-lands of Bernera are liable to be resumed at any time by Government, is absurd, as the complainers admit that the barrackground is not comprehended in the respondent's titles. -VII. The objection, that the respondent is enrolled in general terms, though another person stood enrolled as liferenter, is unfounded in law, as the rights of the fiar and liferenter will always be extricated by them, independent of the entries in the minutes of the freeholders; and it is erroneous, in point of fact, as the respondent's name stands on the roll as "fiar of the lands on which David Stewart of Gordon stands enrolled as liferenter. The fiar not to vote but in absence of the liferenter, or in case of his declining to vote." Complaints on precisely similar grounds were presented by the petitioners, against the enrolments of various other persons who stood in the same situation as Mr W. T. Grant, except that he was the brother, and they were the connections and intimate friends of Mr Charles Grant. All these parties adhered to the pleadings of Mr W. T. Grant, as containing the merits of their case.

The Court dismissed the whole petitions and complaints, and found the complainers liable in expenses. Respondent's Authorities.-(2.) Wight, p. 185; Bell, pp. 225.6. Sinclair v. Freeholders of Caithness, 8th March 1826; 4 Shaw & Dunlop, p. 537; Barkley, 31st May 1826; 4 Shaw & Dunlop, p. 635. (3.) Traill v. Freeholders of Orkney, 23d

February 1791; Bell, p. 60, and Note. (4.) Gordon v. Fairlie, 11th March 1819; F. C. (5.) Bell, p. 204-5-6; Wight, p. 49; Blackwell, 1 Shaw & Dunlop, p. 539.

First Division.-Act. Dean of Faculty (Hope) and D. M'Neill; Bowie & Campbell, W.S. Agents.-Alt. Jameson and Buchanan; Hugh Macqueen, W. S., Agent.-D., Clerk.

1st March 1831.

No. 289.-WILLIAM WALKER, W. S., Pursuer, v. PETER THOMSON & MARY WILLIAMSON, his Spouse, Defenders. Agent and Client-Expenses-Circumstances in which a party found liable for the expense of certain law proceedings carried on when she was a minor, but which she was held to have sanctioned after majority.

Mr Walker brought an action against the defenders, and John Williamson in Auchtermuchty, brother of the defender, Mary Williamson, for the amount of certain accounts of expenses incurred to Mr Walker, as agent for these parties, in carrying on various actions at their instance before the Court of Session and Jury Court. These actions commenced, and were chiefly carried on, when the defender, Mary Williamson, was a minor; and she pleaded-That she had been deceived and misled by her brother, John Williamson (against whom Mr Walker obtained decree in absence for his accounts of expenses), in order to render her liable for a share of the expenses, which were in reality due only by him; and that part of the accounts were incurred in consequence of the omissions or irregularities of Mr Walker himself. Mr Walker maintained-That the defender, Mary Williamson, had all along concurred in his employment, and had sanctioned the proceedings, by signing certain letters (which, however, she averred to have been fraudulently obtained from her by John Williamson), and by making a payment to account, after she came of age; and that he had nothing to do with the alleged fraud of John Williamson. The case was a special one, involving no point, except the proof of the above averments. The Lord Ordinary (Newton) decerned in terms of the libel, and found the pursuer entitled to expenses. The defenders reclaimed; but the Court, without difficulty, adhered.

First Division.-Lord Ordinary, Newton.-Act. J. S. More; John Renton, Agent.-Alt. William Forbes; John Johnson, Agent.-H. Clerk.

1st March 1831.

No. 290-JOHN THOMSON, Pursuer & Respondent, v. THE PROPRIETORS OF THE GLASGOW FREE PRESS NEWSPAPER, Defenders & Advocators.

Letter of Guarantee-Promissory-Note-Stamp Acts-Statute 1681-Probative Writ-A bill having been dishonoured, and a third party having undertaken, in writting, to pay a part of the debt constituted by said bill-I. Circumstances in which said writing was held to be a letter of guarantee, and not a promissory-note, and therefore, that it could be properly stamped as an agreement.-II. That it was granted in re mercatoria, and probative, without the solemnities of 1681.

In this case the Magistrates pronounced decree against Alexander Paterson, one of the defenders who advocated, and, after a variety of preliminary pro cedure, the pursuer, John Thomson, cashier of the Royal Bank, raised a supplementary action against the other proprietors of the said newspaper, which

was conjoined with the advocation by an interlocutor of the Lord Ordinary, and adhered to (antea Vol. III. p. 19,) by the Second Division, on the 18th November 1830. Mr Northouse, the editor of the said newspaper, drew a bill for £350, accepted by two individuals in Glasgow, which was indorsed blank to the Royal Bank, and protested for non-payment. After diligence had been raised, Alexander Paterson, as treasurer for the proprietors of said newspaper, granted to the pursuer the following document, on which the present action proceeds :

"GLASGOW, 28th March 1826.-SIR, As the treasurer appointed by the company of proprietors of the Glasgow Free Press, I hereby undertake to pay to you, for behoof of the Royal Bank, Glasgow, two hundred pounds Sterling, as a debt due to you by Mr William S. Northouse.-I am, Sir, your obedient servant. (Signed) A. PATERSON, Treasurer. (Addressed)-John Thomson, Esq. Royal Bank, Glasgow."

The defenders, inter alia, averred, that no part of the money ever was advanced by the Bank. On the 11th February, the Lord Ordinary pronounced this interlocutor:

"The Lord Ordinary having resumed consideration of this cause, and having heard parties' procurators-Finds that the same reasons which induced him at the debate, when the two processes were conjoined, to refuse the advocator's application to have that process dismissed, with expenses, still apply, as it appears that, being himself one of the proprietors, and acting as their treasurer, there seems to have been no very good reason for insisting upon the rest being called, and that, at all events, he must remain a defender in the process, and incurs no additional expense by the advocation not being disposed of immediately: Finds it unnecessary to decide whether the defenders, who have been called into Court since the record was made up in the original action, are to be held parties to said record, now that the two actions are conjoined, as the Lord Ordinary, in disposing of the case, does not think it necessary to go beyond the supplementary summons, and the defences thereto: Finds it admitted by the defenders, that the proprietors of the Glasgow Free Press authorised the defender, Alexander Paterson, to subscribe the document libelled on, as their treasurer: That it is holograph of the defender Mr Northouse, and that he was then editor of their newspaper: Finds that this document is not a promissory-note, but is a letter of guarantee, and it is so termed by the defenders themselves in their defences; and that the objection that originally it was unstamped, has been obviated: Finds that the letter of guarantee undertakes to pay £200 as a debt due by Mr Northouse; and that the debt so due is sufficiently set forth in the summons; and as the said letter was written and subscribed by the servants of the defenders, if there be any defect in it from want of specification, it must be interpreted against them; besides, that Mr Northouse is a defender, and has not appeared to dispute the statement, that he was, and still is due the sum in the bill, dated 12th September 1825, Finds that this letter of guarantee, being thus granted for the debt constituted by said bill, is a document in re mercatoria, and therefore probative, without the solemnities of the act 1681: But finds it alleged by the defenders that the said document was, by their authority, subscribed by Paterson, in order to obtain an advance of cash to the extent of £200, which was to be replaced by means of a cash-credit, about which the parties were then negotiating, and that although the document was put into the hands of the pursuer, or of his law-agents, that no advance of money was made by the pursuer upon it; and as this is a relevant defence, appoints the cause to be called, in order to be put in a train for enabling the defenders to prove said defences."

The proprietors of the newspaper reclaimed, and pleaded-I. That the document in question was not a letter of guarantee, but a promissory-note, and

therefore, being written originally on unstamped paper, a defect which, by the stamp acts, could not be remedied, that it was null and void : That there was no technical form of a promissory-note prescribed by the stamp acts: That they did not require the word promise to make such a note; and that the word undertake, in the present case, was synonimous with promise: That, being a promissory-note, it could not be changed into a letter of guarantee, by merely af fixing to it a stamp, proper to an agreement.—II. That, supposing the said document to be a letter of guarantee, it was not granted in re mercatoria, and is therefore null, in respect that it wants the solemnities of the act 1681.-III. That the last finding of the interlocutor was inconsistent. Answered-The stamp acts define what is meant by a promissory-note, and the present obligation does not fall under the enumeration. The bill for £350 had been dishonoured, and the defender, by the letter in question, agreed, or un dertook to pay, or see £200 of it paid. It was clearly of the nature of a cautionary obligation.-II. That, being granted in security of the debt contained in the said bill, it was a transaction in re mercatoria, and therefore probative without the statutory solemnities. At advising,

Lord Glenlee thought that the Lord Ordinary's interlocutor was right. He was of opinion that the document was a letter of obligation, and had been properly stamped, and also that it was probative without the solemnities of 1681. The defenders insisted, on other points, to be assoilzied, and the Lord Ordinary bas decided them. This explains what is called an apparent inconsistency in the interlocutor.

Lord Meadowbank concurred.

Lord Justice-Clerk would also adhere to the interlocutor complained of. He was of opinion that the document libelled on was a letter of obligation, and not a promissory-note. As the defenders insisted on other points, the Lord Ordinary was bound to decide them. He has only found that they constituted a relevant defence.

The Court unanimously refused the note.

Reclaimers' Authorities.-M'Intosh v. Stewart, 13th May 1830; Scot. Jurist, Vol. II. p. 375. Alexander v. Alexander, 26th February 1830; Scot. Jurist, Vol. II. p. 273.

Respondent's Authorities.-Fosso v. Milliken, 18th December 1739; Mor. 16,979. Brembner, Petitioner, 18th January 1803; Mor. 17,060. Paterson v. Wright, 31st January 1810; Fac. Coll.

Second Division.-Lord Ordinary, Medwyn.-Act. More.Alt. Skene and Maitland.-James Dundas, W. S., and John Cullen, W.S., Agents.-Mr Ferguson, Clerk.

1st March 1831.

No. 291.-ALEXANDER ALLAN & Co. Chargers, v. JOHN ALLAN, Suspender.

Bill-Acceptor-Cash-Account-Bankruptcy-Bankers having received from the drawer of a bill, another bill in part payment thereof; and having been desired to apply the sum on the credit side of the drawer's cash-account with them, to extinguish said bill; and they having acquiesced-Held, that though the drawer became, immediately afterwards, bankrupt, and was owing them large sums, that they were not entitled to go against the ac ceptor for payment of said bill.

The chargers, Alexander Allan & Co., acted as Mr Rennie of Phantassie's ordinary bankers in Edinburgh, with whom he had a cash-credit, and was in the habit of discounting bills. The suspender accepted two

bills, drawn upon him by Rennie, one for £704, which fell due on the 30th, and another for £1000, which was payable on the 31st day of July 1829. These bills Rennie had indorsed to the chargers, but the bill for £1000 was renewed. The suspender alleged that the bills were accommodation bills; and the chargers averred that they bore to be for value. On the 30th July 1829, the chargers wrote Mr Rennie as follows:

"SIR,-In reply to your letter of this date, we inclose G. Dunlop, Junior, bill discharged, a statement of which is on the other side. We also inclose our receipt for the proceeds of your draft on Ewing, which makes the balance of your account as below:

£1 11 10, which, you will observe, is deducted from Ewing's bill. If Allan does not pay to-day, you need not draw upon us."

In answer to this letter, Mr Rennie, next day, (the 31st July) addressed this letter to the charger:

"MY DEAR SIRS,-Your's I received, as also one from John Allan, who is in London about getting his estate sold. He incloses me a stamp, which I have filled up for £1000, which I hope you will discount, and I shall draw none. The balance will be paid by him. As he is a cousin of the Tom Allan, Royal Exchange, and as he is a particular friend of your Mr Allan, I hope you will not proceed as you say. You may depend on John Allan being perfectly good. I am," &c.-" If I had a stamp, I would have sent you a draft for £140, which I will do, that would cover Allan's due yesterday, with what is in my account." To which the chargers replied the following day ;"Edinburgh, 1st August 1829.-We have received your favour of yesterday, covering John Allan's acceptance for £1000 Sterling, to meet his due this day for the same amount. We trust the other of Allan's for £704, due on the 30th ult., will be taken up, as you propose, immediately.—We are," &c.

:

Mr Rennie proceeded immediately to York, from which he, on the 1st August, wrote the chargers as follows, inclosing a bill for £140:

"DEAR SIRS, I here inclose a bill for £140, and the cash at my credit will pay Mr John Allan's bill for £704; and I hope you have renewed the one for £1000.-Having a great lot of wheat on hand, I have made up my mind to see the crops in the south, and am so far on my road, and shall make as short a stay as possible. At the same time, I am most anxious to see the principal corn counties. Now, should any of my customers not be pointed when I am away, do not proeeed to any steps or I get back, as it may do a great deal of harm."

The cash on the credit side of Mr Rennie's ac

count at this time, amounted to £575, which, with the bill for £140, more than extinguished the suspender's acceptance for £704. Rennie returned to Scotland on the 12th August, and immediately afterwards declared himself insolvent, and was sequestrated on the 28th of that month. The bill for £704. was allowed to remain in the hands of Allan & Co., and on the 18th August they informed the suspender that it was unpaid, and a charge was given for payment on the 24th, when a suspension was presented, and the Lord Ordinary pronounced this interlocutor: "The Lord Ordinary (11th January 1831) having heard the counsel for the parties on the closed record, suspends the letters and charge simpliciter, and decerns: Finds the suspender entitled to the expenses incurred, and allows an account thereof to be given in, and, when lodged, remits the same to the auditor to tax, and report."

The chargers reclaimed, and pleaded-I. The bill bearing to be for "value in stock," the suspender, who is the acceptor of that bill, is not entitled, in a question with onerous indorsees, to maintain that it is an accommodation bill.-II. The suspender, as acceptor and primary obligant in the bill, was bound to see it retired when it fell due, and is not entitled to plead the want of a notification that the drawer had not retired it.-III. The bill remaining unpaid, and no funds having been appropriated to its payment, the suspender is still bound to retire it, nothing having been done on the part of the chargers, by which his primary obligation has been extinguished, or their right to recover from him waived.-IV. Rennie, while on the eve of bankruptcy, was not entitled to call on the chargers to appropriate any apparent balance arising on his account from the discount of current bills, and which bills were dishonoured and refused acceptance, so as to liberate the suspender from his obligation on the bill, of which he was acceptor; and, at any rate, nothing having been done on the part of the chargers after the intimation they received from Rennie, the acceptor is still bound. Answered by the suspender,-I. The bill charged on being, in so far as the suspender is concerned, an accommodation one, and the drawer having made an arrangement with the chargers, by which the amount thereof was placed to the debit of his account, and the chargers having acquiesced in this mode of payment, are not now entitled to claim the amount from the suspender, -II. Whether the chargers acquiesced in that arrangement or not, Mr Rennie was entitled to point out to them which of the debts he owed was to be extinguished by the remittance he made.

"A creditor in two or more separate debts cannot refuse to accept the payment of any one of them, though the debtor should not offer to clear off the others, or even the interest due upon them."

III. Intimation ought to have been made, and "a horning without delay," as the chargers threatened, onght to have been sent the suspender, if they were not inclined to consider the bill as paid.-IV. The person for whose use an accommodation bill is made being the primary debtor, and the others merely sureties, (Bell's Com. I. 427.), the chargers were bound to intimate the dishonour of the bill in question to the suspender, if they wished to preserve their re

course against him.-V. The chargers have no right, after the statement of Mr Rennie's account, made in their letter of 30th July, to go back, when his failure took place, and say that the amount for which they then gave him credit was truly fictitious.-VI. At all events, the chargers, having received the £140 bill expressly in part payment of that for £704, are bound to give the suspender credit for that amount. At advising,

Lord Justice-Clerk had no doubt the chargers entered into the transaction as bankers in an ordinary account. Rennie is put on his guard, that, in certain circumstances, be need not draw on them. Accordingly, he writes them a proposal, and sends a good bill for £140, which, with the sum in his cash-account, was more than sufficient to pay John Allan's bill for £704. They answered on the 1st August, and agreed to it. The chargers were not entitled now to open up that concluded transaction, when Rennie was bankrupt, on the ground that Rennie's paper was bad. He would adhere to the Lord Ordinary's interlocu

No. 292.-CHARLES M'CAUL, Pursuer, v. MONKLAND & KIRKINTILLOCH RAILWAY COMPANY, Defenders.

Process Contract, Construction of-Submission - A party having contracted to execute a certain piece of work, and agreed to refer all disputes as to the meaning and execution of the said contracts to arbiters named therein-Held, I. On raising an action on the contract, that the said disputes should have been submitted to the said arbiters.-II. Process sisted as to other points in dispute, till such submission was disposed of.-III. Opinion expressed, that the said action was premature.

M'Caul entered into three contracts with the Monkland and Kirkintilloch Railway Company, to make and finish, according to a certain plan, three lots of their railway. By the contracts, he was taken bound to perform any additional or extra work which the Company might think necessary; and special provisions were inserted, that the amount and value of this extra work was to be ascertained, if the parties differed, "by two arbiters of skill in such works, mutually chosen." In the conclusion of the contracts, the parties agreed to refer all disputes or differences "relative to the meaning or execution" of them, to Professor Davidson of Glasgow, or Professor Bell of Edinburgh. The pursuer brought an action of count, reckoning, payment and damages, narrating, that he had completed the three lots, in terms of the contract, and concluding, 1st, For count and reckoning as to the contract prices for each lot, and payment of the balance still in the defenders' hands.-2d, For payment of a large account of extra work, which he alleged he had performed upon the several lots, or,

alternately, that the parties should concur in naming men of skill to fix the amount of the said account. It was in limine pleaded, in defence, That the parties were bound, by a provision in the contracts, to refer all disputes relative to the meaning and execution of them to the arbitration of Professor Davidson, of Glasgow College; whom failing, Professor G. Joseph Bell, Edinburgh, and therefore, that the action was incompetent, and should be dismissed; at least, that it could only be maintained, to the effect of having the whole matters in dispute, with the counter-claims of the defenders, remitted to the arbiters provided by the contracts.

Lord Mackenzie, after hearing the parties, pronounced this interlocutor:

"Sustains the dilatory defences, to the effect that the questions betwixt the parties in this cause must be submitted to Messrs Davidson or Bell; and sists process for 14 days, that the defenders may put into process a draft of the submission."

The pursuer reclaimed, and pleaded-I. That the two clauses in the contracts must be construed in consistency with each other; and that the second one did not supersede the first: That the Professors could say nothing about the prices and measurement of the extra work.-II. That the Lord Ordinary should not have dismissed the action, but should have sisted process till Professor Davidson had decided if there was, or was not extra work done. Answered-I. Whether extra work was or was not performed, falls under the clause in the contracts, which provides, that disputes "relative to the meaning or execution" of the contracts, shall be referred to the Professors. When this point is settled, the pursuer, if the parties differ, will have the benefit of the decision of the "arbiters of skill in such works, mutually chosen," to fix the prices. The action is premature, and if sustained, virtually supersedes the office of Professor Davidson, provided by the contract.-II. The Lord Ordinary never meant that Professor Davidson was to decide on the measurement and prices of the extra work, but merely whether there was or was not extra work executed. At advising,

It

Lord Glenlee thought the interlocutor went too far. would have been better had the Lord Ordinary ordered a draft of a submission to be laid before Professor Davidson, and sisted process till the result of it.

Lord Meadowbank was of opinion that the pursuer had been premature. The first thing he should have done was to have gone to Professor Davidson, to have it determined whether there was extra work or not. Quomodo constat, that Professor Davidson would have found that there was extra work? This Court was not entitled to judge on that point. Supposing the Professor had decided that there was extra work, then the parties (only, however, if they disagreed,) would have had recourse to the second submission. As the pursuer had come into Court, it might, perhaps, in substantial justice, be better to follow Lord Glenlee's suggestion, and not turn him out of doors.

Lord Justice-Clerk thought the Ordinary had gone too far, when he said that all questions betwixt the parties must be submitted to Professors Davidson or Bell. It should only have been as far as regards the meaning and execution of the contracts. He would recal the interlocutor to that extent, and sist process. If the Professor says there is no extra work, then the case is at an end. If he says there is, then the parties, if they disagree, must take the opinion of the men of skill. The Court pronounced this interlocutor: "Adhere to the interlocutor complained of, with this variation,