line from the said Robert Dunlop for £12, 10s., on the 15th of May last, being the balance of what was due to her by him prior to that period. Depones, That the bill charged on was never in her possession, and that she still holds the line for £12, 10s. before mentioned, which she produces, and which is marked by the commissioner and deponent as relative hereto. Depones, That the said bill was offered to her by Mr Dunlop ; but she requested him to keep it for her, having full confidence in his honour: That she received no payment from Mr Dunlop to account of said bill or obligation since the 15th of May last, and she gave full value for the line or obligation, and could have had the bill in her possession, if it had not been her own fault. Depones, That she authorised the said Robert Dunlop repeatedly to use diligence on the said bill; but she does not recollect when. Depones, That she does not know when the bill charged on was payable, as she never read it, having trusted altogether to Mr Dunlop's honour. And depones, That she does not know the date of the bill."

"The Lord Ordinary (28th January 1831,) having considered this bill, with the deposition by the charger, and the writs produced, and the minute given in for Patrick Ford, to whom the charger is said to have been married since the date of the charge, Holds the said Patrick Ford as sisted for his interest: And in respect that the deposition is negative of the - matter referred, and imports that the bill was indorsed to the charger for value of wages, Refuses the bill, finds expenses due," &c.

The suspender reclaimed, but the Court adhered, and found additional expenses due.

First Division.-Lord Ordinary, Moncreiff.-Act. Wilson; G. Lang, Agent.-Alt. Maidment; Robert Dunlop, W. S., Agent. S. Clerk.

2d March 1831.

No. 298.-WILLIAM GIBSON and his MANDATORY, Pursuers, v. DUNCAN STEWART, Defender.

English Law-Statute of Limitations-The English Statute of Limitations does not apply to a debt contracted in England by a person domiciled there, but whose subsequent residence, except for a short period, was in Scotland.

Mr Gibson, merchant in Liverpool, and his mandatory, brought an action against the defender, concluding, 1st, For £1272, 8. 7. Sterling, being the balance of the defender's share of the loss sustained in 1806 and 1807, on the ship Washington of Liverpool, in which the defender held one-eighth share under written missives, which stipulated that he was to receive a corresponding proportion of the profits, or bear a corresponding share of the loss. 2d, For £1132, 9s. 4d., said to have been received by the defender, who sailed from Liverpool as supercargo of the vessel, from the pursuer's agents at Barbadoes, on the pursuer's account; and, 3d, For £139, 16. 3., as the balance due on certain accounts between the parties. The defender pleaded various defences, and, inter alia, That the claims sued for were cut off by the English statute of limitations, in which country, and in others subject to its law, they are alleged to have been contracted. In obedience to an order of the Lord Ordinary on the defender, to state specifically the place of his residence since 1808, the following minute was lodged:

"1. Prior to 1807, the defender had no residence in Scotland for many years, and, so far as known to the defender, he was in no respect amenable to the Scotch Courts. 2. In 1808, the defender had a residence in Liverpool; he lived there for twelve months, and he had traded from that port and London for 14 years, viz. from October 1792. The defender sailed two voyages out of London, which occupied nearly two years,

viz. from January 1802 till November 1804. 3. In 1806, when the defender sailed from Liverpool, on the voyage out of which this question arises, he sailed with the full purpose and intention of returning to Liverpool. 4. The defender returned to Liverpool from the West Indies in the latter end of October 1807. He remained there for three weeks, till the middle of November; he then went to Glasgow, where he remained till May 1808; he then went to Edinburgh, where he remained till May 1809; and thereafter he settled as a surgeon at Borrowstounness, and has been domiciled there ever since."

The Lord Ordinary (Newton), 12th January 1831, "Finds, that as it is admitted by the defender, that he has been constantly resident in Scotland since November 1807, and has been settled as a surgeon at Borrowstounness ever since May 1809, the English statute of limitations cannot apply to the present claim, and repels the defence founded on that ground; and in respect parties have not hitherto been fully heard on the other defences, appoints them to debate thereon."

The defender reclaimed, and pleaded-The parties must have contemplated payment in England. The presumption is, that parties will return and settle their claims where they are contracted. If the statute of limitations was once begun to run, it must continue to regulate the claim. The case which has occurred, of a person who contracted a debt in Ireland, and subsequently came to Scotland, is not in point here, as the Irish statute of limitations applies only to Ireland, but the English statute of limitations includes the four seas. It is quite decided in England, that the statute extends to both plaintiffs and defendants in Scotland, and the opposite rule cannot consistently be adopted here.

Lord Gillies.-If they hold in England that the English statute of limitations extends to Scotland, they ought to hold that the Scots triennial prescription applies to persons in England. In the case of a bill of exchange, the locus solutionis is mentioned; but in other contracts, it is implied that the place of payment is the place where the debt can be demanded."

The other Judges concurred; and the Court adhered, with expenses since the date of the Lord Ordinary's interlocutor.

First Division.-Lord Ordinary, Newton.-Act. Keay and James Millar; John M'Kenzie, Agent.-Alt. J. A. Murray and Cuninghame; John Baird, W.S., Agent.-D., Clerk.

2d March 1831.

No. 299.-MATHEW ATKINSON & MANDATORY, Pursuers, v. EBENEZER BEATTIE, Defender.

Ready Money Transaction-Bill of Exchange, Retention of— A party having, in payment of a ready money transaction, paid a certain sum in cash, and afterwards, in farther payment, transmitted a bill, the acceptor of which was unknown to the seller,Hell, that the seller, before the bill was retired, was entitled both to retain it in security, and to raise action for the price of the ar

ticles sold.

The pursuers sued the defender for payment of a debt, amounting originally to £293, 11. 6., being the price of sheep purchased by the defender. The price was to be payable on delivery. The stock was delivered; and after various communings with the defender, £100 was paid shortly after the bargain, and a bill for £180, a. three months, was afterwards transmitted in farther payment. The pursuers, however, as they knew nothing of the acceptor of said bill, wrote the defender, that they declined to take it as cash, but intimated that it would be returned to him as soon as his account, with interest and expenses,

was settled. To this letter no answer was returned by the defender, and the present action was raised on the 30th December 1829. Whilst the condescendence and answers were revising, the bill for £180 was duly retired on the 3d March 1830. The Lord Ordinary on 11th January 1831, pronounced this interlocutor:

"The Lord Ordinary having heard parties' procurators, repels the defences, and decerns against the defender for payment to the pursuers, or to Donald Horne, writer to the Signet, their mandatory, of the principal sum of £293, 11. 6. Sterling, with the legal interest thereof from the 24th day of September 1829, till paid; deducting therefrom the sum of £100, paid to account thereof on the 8th December 1829; and also the further sum of £180, being the amount of the bill which the pursuers received payment of to account thereof on 3d March last, and decerns: Further, finds the pursuers and their said mandatory, entitled to their expenses, and remits the account thereof, when lodged, to the auditor to tax the same, and to report."

The defender reclaimed, and pleaded-I. That the £100 paid in cash, together with the bill for £180 which had been duly retired, diminished the debt to £13, a sum for which it was incompetent to pursue in the Court of Session.-II. That the pursuers were not entitled to retain the bill for £180, and also bring the present action for payment: That if they did not choose to have received the said bill in payment, they were bound instantly to have returned it to the defender, who knew that it was a good bill, in order that he may have cashed it. The Court, without hear ing the pursuers, unanimously adhered.

Second Division.-Lord Ordinary, Medwyn.-Act. Dean of Faculty (Hope) and W. Robertson.-Alt. Skene; Horne & Rose, W.S., and L. Mackintosh, S. S. C., Agents.-Mr Rolland, Clerk.

2d March 1831.

No. 300.-CRUTTENDEN, M'KILLOP & COMPANY, Pursuers, v. WALTER STIRLING GLAS, & G. PENTLAND, Trustee for his Creditors, Defenders.

Process-Adjudication-Competency-A party having pleaded, in defence of an action of adjudication, that it was incompetent, in respect, I. That the lands sought to be adjudged were at the time under sequestration, awarded by the Court; and II. Had also been disponed under a disposition in a cessio omnium bonorum-Held, that said defences were no bar to the action, and decree given, in terms of the libel, accordingly.

The pursuers, merchants in Calcutta, and their attornies, raised an action, and supplementary action of adjudication, in terms of the act 1672, c. 19, against Walter Stirling Glas, on the narrative, that the deceased John Glas, father of the said Walter, had died largely indebted to them, and that they had charged the said Walter S. Glas to enter heir to his said father. The pursuers concluded, that the debt being still unpaid, the lands, &c. belonging to the late John Glas, father of the defender, should be adjudged from him, and declared to belong to the pursuers; and that he should be ordained to exhibit and produce all the writs, &c. concerning the said lands, &c.

Pentland sisted himself as a defender, and, inter alia, pleaded in defence and bar of the action, that it was inept and incompetent, in respect-I. That the whole estates sought to be adjudged were under a subsisting sequestration, awarded by the Court of Session.-II. That the defender, Walter Stirling Glas, had, in a process of cessio bonorum, disponed to the defender,

George Pentland, for himself and the other creditors, his whole estates and effects: That the defenders had, under said disposition, a preferable right to the pursuers, and all other posterior creditors.

Lord Mackenzie pronounced this interlocutor:

"The Lord Ordinary (February 3, 1831,) having heard parties' procurators on the grounds of this summons and defences for George Pentland, and also on the grounds of a supplementary action and defences between the same parties, conjoins the said processes ob contingentiam, repels the defences, and adjudges, decerns and declares, conform to the conclusions of the libels, reserving all objections contra executionem; finds no expenses due either to or by the defender, George Pentland."

Pentland reclaimed-but the Court unanimously adhered.

Second Division.-Lord Ordinary, Mackenzie.-Act. Jameson & Christison.-Alt. Dean of Faculty (Hope) and Buchanan. -W. Renny, W. S., and J. J. Fraser, W.S., Agents.-Mr Thomson, Clerk.

3d March 1831.

No. 301.-WILLIAM HOWATSON, Pursuer, v. JOHN MURDOCH, Defender. Process-Conjunction-A pursuer having brought an action of reduction of an ex facie absolute disposition, on the ground of fraud and circumvention, and on the Act 1621, c. 18; and having, in making up the Record, recovered documents which he conceived went to shew that the disposition had been executed in trust for the granter; and having thereupon brought a supplementary action, to have it found, in the event of the deed not being reduced, that it had been granted in trust--Held, that these two actions were consistent, and might be conjoined.

On 21st April 1825, the deceased Andrew Howatson executed an ex facie absolute disposition of the lands of Craigdarrock, &c. in favour of the defender, for a price paid. On 30th December 1828, the pursuer, as brother and heir-at-law of Andrew Howatson, and a creditor on his estate for £300, under their late father's settlement, raised an action of reduction of the above deed, on the ground, 1st, of fraud and circumvention, and, 2d, under the Act 1621, c. 18. In the course of making up the record, certain documents were recovered, from which the pursuer conceived it could be established that the disposition, granted by Andrew Howatson to the defender, though ex facie absolute, was in reality granted in trust for the said Andrew Howatson and his heirs. With this view, the pursuer raised a supplementary summons of declarator of trust, and count and reckoning, against the defender, setting forth the proceedings in the former action, and the writings recovered, and concluding, that,

"in the event of our said Lords not reducing, decerning and declaring, in terms of the conclusions of the original summons, it ought and should be found and declared, by decree of the Lords of our said Council and Session, that the foresaid disposition, granted by the said Andrew Howatson, in favour of the said John Murdoch, was a trust in his person for the use and behoof of the pursuer, his heirs and assignees ;"

and that the defender should be decerned to denude, &c. and to count and reckon with the pursuer for the rents. To this summons it was stated, as a dilatory defence, that the conclusion in the former action to have the deed set aside, as having been impetrated from the granter by fraud and circumvention, was inconsistent with the conclusion in the present sum

mons, to have it found that the deed was granted in trust for behoof of the granter, and, therefore, that the latter action was not supplementary to, and could not be conjoined with the former. The Lord Ordinary (Moncreiff),

"Having heard parties' procurators on the motion of the pursuer, for having the supplementary action of declarator conjoined with the previous process of reduction at the pursuer's instance, also in this day's roll, and the objections of the defender to this motion, Refuses to conjoin the said processes; and on the motion of the defender, sists this action till the issue of the said action of reduction; and in respect the pursuer intimates his intention to submit the interlocutor to the review of the Court, finds him liable in the expenses incurred by the defender in discussing the preliminary defences."

The pursuer reclaimed. The Court thought that the conclusions of the two actions might competently have been introduced into one summons, and that it was equally competent to bring forward the alternative conclusion of trust by a supplementary action; and therefore altered the interlocutor complained of, conjoined the two actions, and remitted to the Lord Ordinary to proceed accordingly, reserving all questions of expenses.

First Division.-Lord Ordinary, Moncreiff.-Act. Dean of Faculty (Hope) and Whigham; Thomas Thorburn, W. S., Agent.-All. Keay and Shaw Stewart; William Patrick, W. S., Agent.-D. Clerk.

3d March 1831.

No. 302.-MUIR & COMPANY, Suspenders, v. M'DONALD & M'NAB, Respondents.

Bill of Exchange-Onerosity-Proof-Found not sufficient, in a question with the drawer of a bill, duly protested, to deprive the holders of the presumptions of onerosity and bona fides, that part of the contents were paid by the acceptor, by means of a sum borrowed from the drawer ;-that one of the holders (a company) was the acceptor's brother-and that no indorsation was obtained from the Bank by the holders, but the bill was delivered to them with the previous indorsalions unscored.

Donald McDonald, cotton-spinner, Windford, granted his promissory-note to the suspenders for £125, 10s. on 11th January 1828, payable four months after date. The suspenders indorsed the note to R. & J. Blackburn, by whom it was indorsed to Andrew Blackburn, who discounted it with the Ship Bank, Glasgow. When the bill fell due, the chargers (one of whom is brother to the granter,) paid the contents to the Ship Bank, and received up the bill with the indorsations unscored, but without any indorsation by the Bank, and charged the suspenders to pay the amount, deducting £30 paid in part. A suspension was presented, on the ground that the chargers had retired the bill with the funds, or for behoof of the granter, to whom the suspenders originally gave full value; and in evidence of the collusion between the granter and the chargers, the suspenders stated, that the £30 deducted from the charge was lent by the suspenders to the granter, to assist him in retiring the bill when it fell due, on the promise of re-payment in a day or two: That the chargers, although the charge bore that the bill had been indorsed to them by Andrew Blackburn, had in fact obtained no indorsation from that individual, whose indorsation was made in favour of the Bank, and not transferred by the Bank to the chargers, by any subsequent indorsation; and

the suspenders therefore pleaded-I. That the promissory-note in question was not bought or acquired by a stranger on his own account.-II. That it was not intended by the holders of it, i. e. the Ship Bank, to be transferred to a stranger, but was delivered up as a paid bill.-III. That it was in fact retired, either with the money directly of the granter, or by the chargers acting as his confidential friends.-IV. Even supposing it was retired with the chargers' funds, it must be held, that they did so for the honour of the granter; and that they cannot be placed in a better situation, with regard to the complainers, or the subsequent indorsers, than the granter did. The respondents pleaded-That the £30 deducted from the charge was paid by the suspenders to the Bank, (whether through the medium of the granter or not they did not know): That the bill was delivered by the Bank to the chargers, free and uncancelled, on their own account, and that the chargers were entitled to the benefit of the presumptions of onerosity and bona fides, and the contrary could only be disproved by their writ or oath.

The Lord Ordinary (Corehouse),

"In respect it is not proved that the chargers are not oner. ous holders of the bill in question, finds the letters orderly proceeded, and decerns: Finds the suspenders liable in expenses, and remits the account to the Auditor to be taxed.-Note.-It is not meant, by this interlocutor, to touch the question, Whether, when a party, whose name is not upon a bill, retires it, after the term of payment, from a Bank where it has been discounted, a proof, prout de jure, may not, in some circumstances, be allowed that he retired it with the acceptor's funds, and as his trustee? But in this case no proof is offered by the suspenders, except the admissions of the chargers in the record. Now, the circumstances, as admitted, that the bill was past due-that part of it was paid by the acceptor, by means of a sum borrowed from the suspender-that Macdonald, a partner of the chargers' firm, was the acceptor's brother, and that no indorsation was taken by the chargers from the Bank, do not appear, per se, sufficient to prove that the bill was retired with the acceptor's funds, or that it is now held by the chargers in trust, for his benefit."

The suspenders reclaimed.

Lord President. The delivering up of the bill by the Bank, without indorsing it, was the same as an indorsation without re

course.

Lord Balgray. It was at one time held in our law, that a past-due bill could not be indorsed; but since the sexennial prescription was introduced, it has always been held that a bill may be indorsed within the six years after it is due. The bill, in this case, was correctly protested. The Banks put their names on bills as seldom as possible.

The Court adhered; but, on the motion of the sus penders, allowed a reference to oath to be put in.

First Division.-Lord Corehouse, Ordinary.-Act. Jameson and Dunbar; Samuel Wordsworth, W. S., Agent.-All. T. Maitland; Charles Fisher, Agent.

3d March 1831.

No. 303.-WILLIAM HENDERSON, Pursuer, v. JOHN DRYSDALE & JOHN CAMPBELL, Defenders.

Sheriff-Clerk, Responsibility of-Precept, Error in-Principal-Expenses-A Sheriff-Clerk having granted commission to a Substitute for a particular ward of his county; and the Substi tute having issued an erroneous precept, in consequence of which the charge given on it was suspended-Held, I. That the Sheriff-clerk and his Substitute were jointly liable in certain of the expenses incurred in said suspension.-11. For the sum charged

for, supposing it could not be recovered from the original debtor, and that no good objections lay against it, and the decree on which the charge proceeded.-III. In modified expenses incurred in an action of relief and payment, raised against the Sheriff-clerk regarding said suspension, and expenses and damages thereby sustained.

In 1822, the pursuer raised an action against John M'Ghie of Highstonehall, for payment of an account for professional business. Decree was obtained before the Sheriff-Court at Hamilton, for the principal sum of £50, 15. 2., together with £17, 9. I. of expenses of process, besides £4, 5. 6. as the dues of extract. M'Ghie having failed to make payment, was charged in virtue of a precept issued by the defender, John Campbell, who then officiated as Sheriff-clerksubstitute at Hamilton, under an appointment from the other defender, John Drysdale, Sheriff-clerk for the county of Lanark. Campbell's commissions were in the following terms:

"HAMILTON, 11th August 1824.-SIR,-In consequence of the indisposition of Mr James Thomson, Sheriff-clerk-depute of the Middle Ward of Lanarkshire, I hereby nominate you as Substitute-clerk during his absence, and confer on you all the powers necessary for discharging said office of Sheriff-clerk-substitute of the said ward. I am," &c. " JOHN DRYSDALE." "To Mr John Campbell, writer, Glasgow."—" Hamilton, 26th February 1825,-SIR,-I hereby nominate and appoint you to act as Sheriff-clerk-substitute, pro tempore, for the Middle Ward of Lanarkshire, until a regular depute be appointed instead of Mr Thomson, whose commission has been recalled; and I confer on you all the powers necessary for the discharge of the duties of the said office." (Signed) "JOHN DRYSDALE." "To Mr John Campbell."

The precept issued by Campbell bore to be

“given and subscribed by the clerk of Court, at Glasgow, the 34 day of September 1824 years. (Signed) JOHN CAMPBELL, Sub."

A suspension of the charge given on this precept was brought, and after a variety of procedure, the letters were simpliciter suspended, on a preliminary plea that the precept was null, in respect that it bore to be given at Glasgow, whilst, de facto, the decree on which it proceeded was pronounced at Hamilton. Against this judgment a reclaiming note was presented, but the Court (14th December 1827, S. and D.) unanimously adhered, and M'Ghie was found entitled to expenses. M'Ghie having, in the meantime, died insolvent, the pursuer, on the allegation that he had incurred great expense, and lost the benefit of the caution found in the suspension, and thereby the principal debt, with the expenses of process, and the dues of extract, raised the present action of relief and payment against the defenders, concluding that they were responsible for the whole loss and damage sustained, in consequence of the inaccuracy of the said precept. Lord Medwyn pronounced this interlocutor:"The Lord Ordinary (11th July 1829,) having heard parties' procurators on the closed record in this case, and whole process, finds that the pursuer, William Henderson, writer in Hamilton, obtained decree at his instance before the Sheriff-Court of Lanarkshire, at Hamilton, upon the 3d day of September 1824, against John M'Ghie of Highstonehall, in the county of Lanark, for the principal sum of a business account libelled on as due to him, amounting to £50, 15. 2. Sterling, with interest thereof as libelled; and also for £17, 9. 1. Sterling of expenses of the process, and £4, 5. 6. Sterling, as the dues of extracting the decreet: Finds, that upon the said decree a

Sheriff's precept was issued by the defender, Mr John Campbell, as Sheriff-clerk-substitute, under an appointment by the other defender, Mr John Drysdale, Sheriff-clerk of Lanarkshire Finds, that this decree and precept became the subject of a process of suspension before Lord Cringletie as Ordinary, and latterly by review of his Lordship's judgment before the Lords of the Second Division of the Court, at the instance of the said John M'Ghie: Finds, that sundry reasons of suspension were stated by the said John M'Ghie, suspender, touching the merits of the said decree; and after advising memorials in the cause, Lord Cringletie, of date the 22d day of December 1825, without entering into the discussion of the merits of the decree, before answer, ordained the suspender to state his objections to the precept of the decree charged on: Finds, that a condescendence of these objections, and answers thereto, were accordingly lodged, and that a record was, upon the 1st day of June 1826, closed as to the preliminary question relative to the validity of the precept and charge: Finds, that the dependence of said process of suspension was intimated notorially to the defender, John Drysdale, conform to the instrument of requisition and protest produced in this process, dated the 13th day of January 1826, under the hand of John Torrance, notary-public: Finds, that the objection to the precept was, that it bore ex facie to be given under the hand of the said John Campbell, as the Sheriff-clerk-substitute at Glasgow,' the said 3d day of September 1824, whereas the decree was pronounced on that day at Hamilton, the head burgh of the middle ward of the said shire of Lanark, within which ward only, the defender, Mr Campbell, was duly authorised to act as Sheriff-clerk-substitute, under the mandate of commission from the other defender, Mr Drysdale, Sheriff-clerk principal of Lanarkshire: Finds it instructed by the judicial proceedings in the said process of suspension, that, upon the 14th day of November 18:26, Lord Cringletie pronounced the following interlocutor:- Having advised the proceedings constituting the record, in so far as directed to the preliminary objection or ground of suspension, that the precept on which the charge was given is null and void, sustains that reason of suspension, suspends the letters simpliciter, and decerns; and, in respect that the long pleadings on the whole cause were prepared before passing of the statute G Geo. IV. c. 120, and when the whole pleas, peremptory and dilatory, were required to be pleaded at once, finds the suspender entitled to expenses ;'-which judgment was finally adhered to by the Lords of the Second Division of the Court on the 14th day of December 1827: Finds, that the account of the said expenses so found due by the present pursuer to the suspender in said process, were taxed by the Auditor, and modified to the sum of £162, 15. 11. Sterling: Finds, that the suspender, John M'Ghie, having died during the dependence of these proceedings, James M'Ghie, his son, was sisted as his representative in his stead: Finds, that by the interlocutor, of date 11th March 1828, approving of the Auditor's report, Loid Cringletie decerned in favours of the said James M'Ghie, who had been so sisted as a party in the process, in room of the original suspender, the deceased John McGhie, for the sum of £57, 12. 4. Sterling, as the amount of said expenses, paid by the said deceased John M'Ghie, his father, to Alexander Fleming, writer to the Signet, his agent: Finds that the taxed amount of the account of expenses incurred by the suspender, M'Ghic, to Robert and George Aiton, writers in Hamilton, the suspender's country agents, included in the said general account of expenses, was £20, 12. 1., but for which no decree went out in their name, qua agents: Finds, that a farther sum of £31, 4s. 10d. of said aggregate expenses was decerned to be paid to James Young, the suspender's cautioner, in reimbursement of advances to the suspender's agent by him, and the residue of the said £162, 15. 11. Sterling, being £50, 16. 8. was ordained to be paid to the said Alexander Fleming, the suspender's agent in this Court: Finds that, in the whole circumstances of this case, the defenders are conjunctly and severally liable to the pursuer in relief of the pecuniary loss sustained by him through the nullity of the foresaid precept, and of the expenses paid or incurred by him in consequence thereof: Therefore, under the obligation to assign after-specified, decerns against the said defenders, conjunctly and severally, for payment to the pursuer of

the foresaid sums contained in the said decreet and precept, as due by the said John M'Ghie to the pursuer, William Henderson, viz. the said principal sum of £50, 15. 2. and interest thereof, in terms of the said decreet and libel, the said sum of £17, 9. 1. of expenses of process, and the said sum of £4, 5s. 6d. as the expense of extract, with interest thereof since the said 3d day of September 1824, the date of the decree, and in time coming during the not-payment as libelled: Decerns against them, also, conjunctly and severally, for relief, reimbursement, and repayment to the pursuer of the said sum of £162, 15. 11., being the taxed amount of expenses in the said process of suspension, with interest from and after the date of payment and advance by the pursuer, and during the not repayment of the same; but under deduction therefrom of the foresaid two sums of £57, 12. 4., part thereof, decerned to be paid to the said James M'Ghie, the son and representative of the said John M'Ghie, the pursuer's said debtor, and the foresaid sum of £20, 2. 1., also part thereof, being the taxed amount of the account of the said Robert and George Aiton, the suspender's country agents, both sums having been confessedly retained by the pursuer at settling said expenses: De. claring, that every plea of retention competent to the pursuer, touching the said last-mentioned sum, is expressly reserved entire for the behoof of the defenders; and in case of a demand for payment being at any time made by the said Robert and George Aiton, qua agents foresaid, the pursuer, on being relieved thereof by the defenders, shall be bound to co-operate with them in establishing said claim of retention, and shall be also bound, but always at the defender's expense, to assign them, conjunctly and severally, into his right. Moreover, on receiving payment of the before-mentioned sums, under deduction and retention as aforesaid, the pursuer shall be bound to assign his said claim, decreet and vouchers, and instructions thereof against the said John M'Ghie, and his said representative, and his means and estate, to the said defenders, with absolute warrandice that the said debt was due to him, aud has not been paid, compensated, or discharged : Finds the defenders, conjunctly and severally, liable to relieve the pursuer of the expenses incurred by him to his own agent in the foresaid process of suspension, as between agent and client, and remits to the Auditor to tax the account thereof when lodged, and to report, and decerns accordingly: Finds the pursuer entitled to the expenses incurred by him in this process, subject to modification, and remits the account thereof to the Auditor to tax, and to report, reserving always to the defenders their mutual claims of relief against each other as accords."

The defender reclaimed-and the Court having entertained great doubts as to the extent of Drysdale's liability, before farther advising," ordered cases. The pursuer pleaded-I. The defender, Mr Drysdale, as principal Sheriff-clerk, is responsible for his deputes and substitutes, and is bound to indemnify the pursuer for all loss and damage which he has sustained, in consequence of the irregularity in the mode of authenticating the precept or extract, issued to the pursuer by the defender Campbell, as Sheriff-clerk-substitute of Lanarkshire, seeing that, as a public officer, Mr Drysdale is responsible for the correctness and regularity of the official instruments and warrants issued under his authority.-II. The defender, Mr Campbell, as having undertaken an office of public trust, is also, without prejudice to the foresaid obligation, incumbent on his constituent, individually responsible for his official acts and deeds, and, in particular, is bound to make reparation to the pursuer for the loss and damage resulting from the irregularity in the precept in question.—III. It was not legally incumbent on the pursuer, at any stage of the process of suspension, to have notified to the defenders, or either of them, that one of the reasons of suspension was founded on, or

resulted from, the irregularity in the mode of authenticating the precept, seeing that the defenders were bound to furnish the pursuer with a regular precept or extract, on which execution might proceed, and that under a general official responsibility for its correctness, and a consequent obligation to indemnify the pursuer for any loss or damage which he might sustain, by reason of the irregularity or informality of such precept or extract.-IV. The pursuer is not ac countable to the defenders, or either of them, for the manner in which he conducted or pleaded the action of suspension against M'Ghie; and when he communicated to the defenders the state of the procedure in that action, he did so, ex gratia, and not in implement of any legal obligation on him to that effect.-V. Even supposing that the pursuer had been bound to apprize the defenders that a reason of suspension, founded on the informality of the precept or charge, had been stated, and that the pursuer had been accountable to the defenders for the manner in which the action of suspension had been conducted from the outset, the defenders having been informed by the pursuer, debito tempore, that such a reason of suspension had been stated, and that he would hold them responsible for the consequences of its being sustained; and having given them an opportunity of suggesting what course of pleading or statement they thought best, and of obviating the objection if they could, of which opportu nity they availed themselves, they are not now enti tled to review the proceedings in the process of suspension, or to raise any objection to the manner in which that action was conducted on the part of the pursuer. VI. Supposing it were competent for the defenders now to review and object to the manner in which the action of suspension was conducted, that process having been duly pleaded in conformity with the rules of pleading at that time in observance, and with due regard to all the maintainable pleas of the pursuer, there are no termini habiles for the objections stated by the defenders on that ground.-VII. Although a considerable proportion of the expenses of the process of suspension, awarded against the pursuer, and incurred by him to his agent, was incurred before the objection to the precept was discussed as a sepa rate reason of suspension, yet, the letters and charge having been ultimately suspended with expenses, in respect of the official irregularity committed by the defenders, they are bound to indemnify the pursuer for the whole of the expenses of process, as well as for all other loss and damage condescended on. Answered for Drysdale-I. The defender is not liable for the alleged loss and damage pursued for,-in respect no such loss and damage was created by the alleged error in the precept, or by any act or omission on the part of the defender, or of any person for whom he is responsible.-II. The pursuer cannot insist in this claim against the defender,-in respect that no intimation of the objection to the precept was intimated or known to the defender, until the pursuer's proceedings, which caused the alleged loss and damage, were nearly terminated, and almost all the expense thereof incurred.-III. The claim pursued for is groundless,-in respect the mistake in the precept clearly appeared on the face of