it, and the pursuer was allowed a fee for professionally examining it, and satisfying himself of its accuracy, and therefore was guilty of professional negligence, for which he himself is responsible, for having execated it. IV. The claim is groundless,-in respect that the objection to the precept was omitted to be stated as a ground of suspension, and after having been incidentally stated was abandoned; and that the pursuer, instead of founding upon that omission and abandonment, concealed it, and did himself obtrude the objection on the notice of the Court, in order to withdraw attention from the fatal errors for which he himself is responsible.-V. Even had there been no errors in the precept, the letters would have been suspended, on the ground of the errors in the charge, and in the execution, and also on the ground of there having been no debt owing by M'Ghie to the pursuer; and, therefore, he is not entitled to attribute his alleged loss and expense to any mistake in the precept. -VI. Even were the defender liable for any part of the loss and expense of which the pursuer is claiming relief, the pursuer is already indemnified for such loss and expense by the funds belonging to M'Ghie, which he, the pursuer, is retaining in his hands.

The case came on for advising on the 20th January 1831.

Lord Cringletie concurred in the opinion delivered by Lord Glenlee, when this case was last before the Court. He had now read these cases, and could not alter the opinion which he then delivered. Henderson, who is a writer, obtained this deeree. He must have known who the Sheriff-clerk was, and to what jurisdiction he was limited. What gentleman accustomed to carry on business, who takes a decree, and desires and obtains a precept such as this was, but must have seen the mistake? Henderson must have known well that he never got a decree at Glasgow. He got his decree at Hamilton, and he is bound to know that a precept on that decree was bad, if it did not bear the truth. In that situation, he gives a charge on the precept. The old system of pleading was at that time in operation, and it was necessary to argue the whole case, both on the preliminary point and on the merits. It is objected in the outset, that the precept does not bear faith with the records from which it is extracted. The action had come before himself, and there were long pleadings on the merits. He thought Henderson ought to have stopped short whenever he saw the objection to the precept stated. It was different from an ordinary precept, and he ought to have stopped short and said, "This precept is not true; give me a proper extract; I cannot support this one for a moment." The defender's attention ought to have been directed to the defect. But instead of this, the pursuer went on and engaged in long pleadings. The suspender in that action then saw that he was likely to succumb on the merits, and, accordingly, he resorts to his original objection. Then an investigation is ordered, and then, for the first time, notice of the objection is given to the defender. From the date of that notice, he held the defender liable for all the proceedings. He should have stopped short, and not have attempted to support the bad precept. For every thing, therefore, that occured after his interference, he held him to be clearly liable. But, formerly, he thought that Drysdale ought not to be held liable for what took place prior to the notification of the objection to him, and he still thought so.

Lord Glenlee's opinion remained very much the same. The argument in the pursuer's third plea in law, that he was not strictly bound to intimate the objection at all, he thought incorrect. He thought, if the pursuer trusted to the defender at all, be ought to have given him notice immediately of the objection. Another reason for this is, that the party may have an opportunity of settling the matter privately without further expense. The cases of writers and others, who have gone wrong professionally, are not applicable; but, at any rate, in all of those cases,

it will be found that the objection has been stated to the writers as soon as discovered. Suppose that Mr Henderson, instead of acting for himself, had been acting for a client, and had taken such a precept, would he not, in that case, have been liable to his employer? He would not have been liable, to be sure, if there had been no fault; but here there was a fault. The pursuer says himself, that if the precept had been palpably ex facie, and indefensibly null, he would not have been justified in delaying to give notice of the objection. Now, this concession is applicable to the present case. The precept here was palpably ex facie, and indefensibly null, and so the Lord Ordinary found. The nullity was apparent ex facie; for the precept bore to be dated at Glasgow, and to have been extracted from the Sheriff Court books there, whereas it is notorious that this was not the fact. The objection, therefore, ought to have been intimated; by failing to intimate, the pursuer failed both in a legal and in a moral duty, which the whole world observes in similar circumstances. If intimation had been given, Drysdale would probably have paid the debt. Therefore, he adhered to his former opinion, and concurred with Lord Cringletie. and al

Lord Justice-Clerk.-This was a very important case; though it was very fully and ably argued before, he was not sorry that they had an opportunity of considering it in cases. But, attending to every part of this argument, he had not arrived at the conclusion, that the pursuer's claim ought to be sustained in toto. In certain circumstances, he held it to be imperative on a practitioner to see that errors have not been committed. In the present case, and every case of the kind, the practitioner is paid for taking out the precept. If he takes out a blundered instrument, he is liable to his client for the consequences, and the public officer may also be liable. But the question is, what is the extent of this liability? and in the present case, that depends very much on the manner in which the case has been discussed. As soon as the objection was made, certioration ought to have been made to Mr Drysdale. But from the time that Mr Drysdale appeared, and after he had notice, he could entertain no doubt of his responsibility. It was part of the duty of an agent to see that the precept came from the proper quarter. This was a piece of business transacted at Henderson's own door, and he could not but have seen the mistake. There was, besides, another circumstance in this case which he could not lay out of view, and which had weighed very considerably with him;-the charge given on this precept was incorrect,-it bore to be in virtue of a precept from the Sheriff-Court books of Lanarkshire at Glasgow. Now, that was an irregularity for which Henderson was responsible. It was a new and separate ground of objection. There is therefore here a two-fold objection,-first to the charge, and then to the precept, and both objections were stated; and seeing this, it was the duty of Henderson to say "I shall go no farther," and to have intimated the objection to Drysdale. Not having done that, Drysdale cannot be liable for the expense of the discussion on the merits. Therefore he conceived, that while we find the Sheriff-Clerk liable for all that took place after he was formally made acquainted with the objection, he is not liable for any of the expenses incurred before he received notice.

Lord Meadowbank said, that had he delivered his opinion before hearing that of their Lordships, he should have come to an opposite conclusion. One of his doubts was founded on the fact, that no good could have arisen from an earlier notice to Drysdale. He, for anything that appeared, would have gone on defending the precept. This was the ground of his doubts.

Some difficulty having arisen regarding the terms of the interlocutor, as to Mr Drysdale's liability for the original debt, the Court pronounced this order, (20th January 1831),

"The Lords having advised the cause, and heard counsel for the parties, recal the interlocutor submitted to review, and, before further answer, appoint the parties, by minutes of debate, to be lodged within three weeks from this date, to state their arguments as to the state of the principal debt, and the defender, Mr Drysdale's alleged liability for the same; and these minutes, when lodged, to be seen and interchanged, revised, and finally lodged, within eight days thereafter."

The pursuer contended that M'Ghie died bankrupt: That the principal debt was constituted by decree, and that Drysdale was liable for it, with the expenses incurred, as he had failed in his defence of the erroneous precept, in consequence of which the letters had been suspended, and the cautioner lost. Answered-The pursuer has been overpaid, in respect that, by a final judgment of this Court, he has been found lia ble to M'Ghie in £77, 14. 5: That no claim to any debt against M'Ghie had been established, because the case had been suspended initio litis. In consequence of the error in the precept, no right to establish the debt had been lost. It could have been easily remedied by issuing a new and correct precept, or by turning the charge into a libel. The caution in the suspension was conditional. Nothing was payable under it, except it had been found that there was wrongous suspending. But the reverse took place.

At advising, on the 3d of March 1831,

Lord Cringletie said, that as Henderson had lost the benefit of the cautioner, in consequence of the defect in the precept, Drysdale was liable for the debt in the decree, if justly due. But Henderson was bound to prove its validity, and was not entitled to throw the burden of proof on Drysdale, who must just stand in the place of the cautioner.

The other Judges concurred. As to the question of expenses,

Lord Justice-Clerk observed, that the party was not in the situation of one who gains his whole cause, and therefore that expenses in toto could not be given.

The Court pronounced this interlocutor:

"Find that the defenders are, conjunctly and severally, liable to the pursuer for the expenses incurred by him in the process of suspension with John and James M'Ghie, from and after the 23d day of December 1825, when intimation of the said process was made to the defender, Campbell: Find that the expenses decerned for, and incurred against the pursuer, in the said process, amount to the sum of £57, 2s.; and for payment of this sum, accordingly, decern against the said defenders, conjunctly and severally, with interest thereof, from and after the 18th day of March 1828, when the same was paid, and until payment: Find 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, from and after the said 23d December 1825, with interest from one year after the date of the last article in the account thereof; and remit to the auditor to tax the account

of said expenses when lodged, and report: Find the pursuer entitled to the expenses incurred by him in this process, subject to modification; and remit the account thereof to the auditor, to tax and report, and particularly to distinguish the expenses incurred in the said process prior, from these incurred subsequent to the presenting of the reclaiming note for the defender, Mr Drysdale; and quoad ultra, assoilzie the defenders from all the conclusions of the libel, and decern, reserving always to the defenders their mutual claims against each other as accords."

Pursuer's Authorities.-Scotts v. Grieve, 3d January 1696; Mor. 13,958, Johnstone v. Pedie, 9th December 1709; Mor. 13,959. Brown's Sup. V. p. 59. Robertson v. Gibson, 27th July 1725; Mor. 13,963. Home v. M'Kenzie, &c., 4th July 1735; Mor. 13,133. Mason v. Thom, 4th February 1787; Mor. 3535. Lillie v. M'Donald, 13th December 1816, F. C. Chatto v. Marshall, 17th_January_1811, F. C. M'Millan v. Gray, 2d March 1820, F. C. Slater v. Henderson, &c., 17th January 1822, S. & D. Highgate v. Bogle, 12th February 1823, S. and D. Currie v. Colquhoun, 17th June 1823; S. and D. Morrison v. Ure, 2d June 1826; S. and D. Struthers v. Lang, 24 February 1826; S. and D. Rowand v. Stevenson, 6th June 1827; S. and D., affirmed on Appeal. Pitcairn v.

Defenders' Authorities.-Ersk. III. 3. 86.

Umphry, 27th July 1775; Mor. 3161. Ersk. II. 3. 32. Dunbar v. Muirhead, 30th November 1709; Mor. 2149. Hebertson v. Rattray, 12th June 1793; Mor. 2157. M'Lean r. Grant, 15th November 1805; Diet. voce Reparation, App. No. 2. Liddell v. Ure, 29th November 1748; Mor. 13,964.

Second Division.-Lord Ordinary, Medwyn.-Act. Skene & William Bell.-Alt. Dean of Faculty (Hope) and Marshall.— Hunter and Whitehead, W. S., and Alexander Fleming, W. S., Agents. Mr Ferguson, Clerk.

This was a suspension of a charge, on a bill for £1, 2. 10., on the ground that the charger was not an onerous bona fide holder, and that the charge was inept, being on a protest recorded in the Sheriff-Court books of Aberdeenshire, and executed against the suspender while he resided in Banffshire. Answered -The charge in question was withdrawn, and a regular charge of horning executed against the suspender, two days before the present bill of suspension was presented. The charger is a bona fide onerons holder of the bill, and no reference is offered to his oath. The Lord Ordinary (Moncreiff,) refused the bill, and found expenses due. The suspender reclaimed, and pleaded-That instructions had been sent to Edinburgh to present a suspension before the new charge was given, and the bill ought to be passed, to the effect, at least, of trying the question of expenses. The Court recalled the interlocutor, and remitted to pass the bill, on consignation.

First Division.-Lord Ordinary, Moncreiff.-Act. Robert Thomson; James M'Cook, W. S., Agent.-Alt. Milne; James Marshall, S.S.C., Agent.-H. Clerk.

4th March 1831.

No. 305.-JOHN MILLER & OTHERS, Pursuers, v. Mas
AMELIA MOODIE or ANDERSON, Defender.

Heritable Bond--Obligation-Expenses--Circumstances in which the sum due by an heritable bond having been paid to a lady, who became bound to grant a valid discharge, but it afterwards appearing that she was, ex facie of deeds, only a liferentrix (although she claimed to be fiar, but had brought no declarator to that effect); and she having offered to repay the money, that it might be consigned in terms of the bond-Held, in an action against her to grant a discharge, that, on repaying the money, she was entitled to be assoilzied, with expenses.

In 1823, the defender, Mrs Anderson, and her sister Mrs Forbes, obtained payment of the sum of £3000, for which they were heritable creditors over certain lands in Perthshire. Mrs Anderson's half of this sum having come into the hands of her agent, he, with her consent, lent £275 thereof, on an assignation by one of the pursuers, Mr Roy, to an heritable bond and disposition in security which had been granted in his favour for that sum, by another of the pursuers, Mr Miller, over certain subjects in Milnathort. This assignation was taken in favour of the defender in liferent, and of her two daughters, Margaret and Johan Anderson, equally in fee, and to their respective heirs and assignees, and infeftment followed in terms thereof, in favour of Mrs Anderson and her daughBoth the daughters died, and their heir-at-law was Mr James Anderson of Golland, their uncle. The defender alleged that she was not aware of the desti

ters.

nation in the assignation, which went to deprive her of the fee of her own money, till shortly before the present action was raised, the assignation having remained in the hands of her agent, who was also agent for Mr Anderson, to favour whom, it was averred, the destination had been so framed as to make him the fiar of the money. This allegation was, however, distinctly denied; and it was stated, that the defender had lent out other sums on bonds taken payable in similar terms, it not being contemplated that the daughters would have died—and the draft had been revised by her brother-in-law, Mr Forbes, a professional man; and Mr James Anderson was willing to make up a title and denude at the defender's expense. In December 1827, the pursuer, John Miller, proprietor of the subjects in Milnathort, with consent of the other pursuer, Mr Roy, for his interest, sold the said subjects to Mr Macdonald, tenant in Outh, for £363, and granted a disposition accordingly, and received the price. On 1st May 1828, the pursuer, Mr Roy, paid the defender the principal sum and interest due upon the bond which he had assigned to her, by paying part of the amount in cash, and granting her a bill or obligation, signed by himself and Mr Robertson of Touchie, for the balance. At same time, the defender granted the following letter to Mr William Thomson, writer in Kinross, another of the pursuers, who acted as Mr Roy's agent:

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HALLHILL, 1st May 1828.-SIR, I hereby acknowledge that you have, now and formerly, fully and finally settled and paid to me the bond and disposition in security, granted to you by John Miller, portioner in Milnathort, for £275, and assigned by you to me: And I declare that I have no farther claim under the said bond: And I hereby oblige myself to subscribe and deliver a formal and valid discharge, as soon as the same can be prepared,-four words delete.-I am, Sir, your most obedient servant, (Signed) AMELIA MOODIE." (Addressed to) "Mr William Roy, West Dron, by Bridge of Earn."

The purchaser of the subjects having become urgent to have the bond and disposition in security discharged, the pursuer, Mr Thomson, on the faith of the above letter, granted an obligation to the purchaser in the following terms:

"9th May 1828.—I hereby oblige myself to procure and deliver to you, without any expense, a discharge by Mrs Anderson of Hallhill to John Miller, portioner of Milnathort, of an beritable bond by him to Mr Roy of Ledlanet, and assigned by Mr Roy to Mrs Anderson, and that within a month. (Signed) WILL. THOMSON." "I also oblige myself to give you up the titles of the above property in my possession, within the above period. (Signed) WILL. THOMSON." (Addressed to) Mr Donald Macdonald."

After a variety of correspondence, Mr Macdonald, the purchaser of the subjects, raised an action on 8th December 1828, against the pursuers, Mr Miller, Mr Roy and Mr Thomson, to compel them to get the foresaid heritable debt discharged, or to pay the amount thereof to him; and upon this action Mr Macdonald executed an inhibition. In the course of the correspondence between Mr Thomson and the defender's country agent, the latter wrote on 19th December 1828:

"I have now to intimate to you, as agent for Messrs Miller and Roy, that, as Mrs Anderson is still unable to grant any discharge and renunciation of the said debt, she is ready to repay the money she received to account of the principal sum,

with interest from the time of receiving it, so that your clients may consign the amount in terms of the bond."

To this letter Mr Thomson answered, that upon the faith of Mrs Anderson's letter, he had granted his personal obligation to deliver a discharge of the bond to the purchaser, and that an action had been' raised to compel him to do so, and that he had therefore given instructions for raising an action to compel Mrs Anderson to implement her obligation. Accordingly, on 10th January 1829, the present action was raised, concluding, that Mrs Anderson should be ordained to make up a title to deliver to the pursuers a valid discharge of the heritable bond, and to relieve the pursuers of the foresaid action at the instance of the purchaser, and of all expenses they might incur thereanent. The Lord Ordinary Meadowbank,

"In respect the defender maintains that she is not bound, at her own expense, to take any steps for making up and completing a title to the heritable bond in question, and therefore declines to take any steps under the interlocutor of 25th May last, Repels the defences, and decerns against the defender, in terms of the whole conclusions of the libel: Finds expenses due; appoints an account thereof to be given in, and, when lodged, remits to the auditor to tax the same, and to report."

Mr James Anderson died during the dependence of this process. On 26th November 1830, the Court sisted the process till Mr Anderson's heirs should be called as parties. A minute was lodged for the children of Mr Anderson and their tutor, stating that the children being minors, nothing whatever could effectually be done by them.

Lord Balgray.-I can see a very considerable difficulty as to how a valid discharge is to be obtained. By the action at the purchaser's instance against the pursuers, they are called on, either to procure such a discharge, or to pay the debt. But how can we, in this shape, do any thing whatever? A judgment against them would be quite nugatory. The granter of the assignation became bound that the money should be paid to Mrs Anderson in liferent, and her children, and their heirs in fee. It now appears to be conceded, that the lady has the fee, and not a mere liferent; but there should have been a declarator to that purpose. Then comes the more delicate question, (which seems to be the kernel of the cause,) as to the expenses of process. I think all the parties have been in the fault; and I do not see well how we can give expenses to either of them.

Lord President.-The offer to restore things to their original state, by paying back the money, is a strong circumstance. I cannot see how the pursuers could have an interest to ask more.

Skene for the tutor-at-law.-I am satisfied Mr Anderson's children can never get the fee of the money, from the shape of the deeds; and we are willing to grant any discharge which may be of use.

Lord President.-I am not sure if that would be right or safe. At all events, I am for giving modified expenses to the defender, in respect of the offer to pay back the money.

Lords Balgray, Craigie and Gillies concurred in this view; And the Court

"Recal the interlocutor reclaimed against; and in respect of the offer made by the defender, on the 19th day of December 1828, to repay the sum of £275, (which offer has now been repeated by her Counsel,) of consent, decern against her for payment of said sum, with interest due thereon since the first day of May 1828, and until paid; and, quoad ultra, assoilzie her from the conclusions of the action, and decern: Find the pursuers liable in the defender's expenses, incurred in this action, subject to modification; appoint an account thereof to be put in, and remit to the Auditor to tax, and report. The sum to be repaid by the defender to be under deduction of the sum contained in the bill or obligation granted by the said William Roy and Robertson of Touchie, to the defender, for part of

said money, upon delivering up such bill or obligation, so as to restore the pursuers to the same state as they were previous to paying the defender in money, and giving her the obligation above alluded to."

First Division.-Lord Ordinary, Meadowbank.-Act. Jameson & Coventry; Robert Wilson, S. S. C., Agent.-Alt. Dean of Faculty (Hope) & J. S. More; MacRitchies, Bayley & Henderson, W.S., Agents.-For Tutor-at-law, Skene; Agent.-D. Clerk.

4th March 1831.

No. 306. ALEXANDER DUNCAN & OTHERS, Suspenders, v. JOIN FORBES, Respondent. Prescription-Ship's- Husband-Oath of Reference-An action being brought against the joint owners of a vessel, for payment of a prescribed account for furnishings; and on a reference to oath, the ship's-husband, who was also a joint owner, having deponed affirmative to the constitution of the debt, and admitted that he had not paid it; and the other owners having deponed that they knew nothing whatever of the account-the oath of the ships'husband was found not to bind the other owners, who were accordingly assoilzied.

The suspenders were joint owners of the sloop Neptune, along with Alexander Jameson, who acted as ship's-husband from 1822 to 1824. In November 1827, the respondent raised an action before the High Court of Admiralty, against the suspenders and Jameson, for £71, 15. 5., as the amount of an account for furnishings, &c. for the sloop Neptune, from 22d Juné 1822 to 8th April 1824, deducting £15 paid in part. In defence, the suspenders stated, that they had no knowledge of the account, which was prescribed. The respondent offered to refer the constitution of the debt, and non-payment of it by Jameson, to Jameson's oath, and the non-payment of it by the suspenders, to their oaths. The suspenders maintained-I. That the account being prescribed, the oath of one owner, although ship's-husband, would not bind the other owners, and that the pursuer must refer to oath both the constitution and subsistence of the debt.-II. That Jameson, for whom no defences had been lodged, had an interest in the action, and an evident controul over it, so that he was an inadmissible witness. This last plea was founded on an averment, that Jameson had furnished documents to the respondent, proving his having had the management of the vessel, and had written letters to the respondent's agent, in one of which he stated, that he had been desired by the respondent to inform him, that he had relieved Mr. Duncan, one of the suspenders, from the process," but be sure and hold the rest good for the money;" and "if this relief require to be extended on stamp, forward it to be signed by John Forbes (the respondent,) and me." "The respondent, on the other hand, maintained -I. That the ship's-husband had full power to bind the owners, and that it was competent to refer the constitution of the debt to the oath of Jameson, and resting-owing to the oaths of the suspenders.-II. That the respondent was no party to any letters written by Jameson, and had received no documents from him.

The Judge-Admiral (4th December 1828,)

"Finds it alleged by the pursuer, and not denied by the defenders, that they are part owners of the Neptune, on account of which the furnishings in question are alleged to have been made; finds it admitted by the defenders that Jameson was

the managing owner at the time: Repels the plea of prescrip tion maintained by the complainers, in respect they do not, allege that they, or either of them, made payment of the furnishings in question; but finds that the offer of the pursuer, to prove resting and owing by the oath of the defender, Jameson, espe. cially in the particular circumstances in which he stands, is not a competent mode of proof against the defenders: Appoints the defenders to give in a minute, and therein to confess or deny, whether the furnishings were made or not to the vessel; and if they acknowledge they were made, to state whether they allege that payment of those furnishings is established by the writings in process."

The suspenders having declined to implement this order, as it might infer a departure from their plea of prescription, the Judge-Admiral (5th March 1829,) repelled the defences, and decerned in terms of the libel. On advising a bill of suspension and answers, the Court, 2d July 1829,

"Recal the interlocutors of the Judge-Admiral complained of, and sustain the plea of prescription; but remit the process to the Judge-Admiral to allow the pursuer still to prove resting and owing, by a reference to the oaths of all the defenders, in common form, and to proceed accordingly, reserving the consideration of the question of expenses incurred before the Court of Admiralty, and this Court, to the Judge-Admiral, until the final issue of the cause,"

On the 23d of July, the Judge-Admiral applied the judgment, and allowed the charger to give in a minute of reference, in these terms:

"The charger refers to the oath of the said Alexander Duncan, Alexander Thomson, James Geddes and Alexander Jameson, the point, whether the account pursued for is resting and owing, or has been paid by them respectively?"

and this reference was sustained by the Judge on advising the minute, with answers, under the qualification,

"that it imports a reference of the constitution as well as of the subsistence of the debt."

Jameson being examined upon oath, deponed, That he acted as ships'-husband from 1822 to 1824,"That during the period he so acted as ship's-husband for the Neptune, he received furnishings of cordage, and other articles for the vessel, from the pursuer, John Forbes, amounting to the sum of £71, 15. 5. ; but in the account of these furnishings, Mr Forbes made a charge for his own trouble in going to Banff, to survey the vessel. Depones, That Mr Forbes several times rendered to the deponent an account of these furnish ings. And the account, No. 3 of process, being shewn to the deponent, depones, That he is of opinion that it is a just copy of that formerly rendered to him: Depones, That James Geddes, the defender, gave the deponent an acceptance for £15, which he indorsed and discounted, and paid the money to Mr Forbes, on account of these furnishings: That when Mr Geddes gave the deponent said bill, he told Mr Geddes it was to be applied in part payment of Mr Forbes's debt: That when the bill became due, Mr Geddes did not regularly retire it, and the deponent got it protested at his own instance, upon which Mr Geddes paid it: Depones, That during the time he so acted as ship's-husband for the Neptune, the deponent made no other payment to account of Mr Forbes's said debt. Interrogated, Whether he has since paid any farther sum to account of said debt? Depones, That he has not; but at the time that this account was incurred to Mr Forbes, the deponent kept a shop in Buckie, and Mr Forbes incurred a shop account to the deponent, to the extent, as he thinks, of £66 Sterling; but since the deponent got into bad circumstances, the whole of this account has been discharged by Mr Forbes, part of it having been paid on the deponent's account to Mr Alexander Brown, writer in Elgin, and part to Mr John Smith, solicitor in Banff. Depones, That the whole of the furnishings so made

by Mr Forbes, and stated in the account in question, were applied to the use of the Neptune. Interrogated for the defender, Whether this action was not raised by his advice?-Whether, since it was raised, he has not corresponded with the pursuer's agent in Edinburgh? and, Whether he has not assured one of the other owners of the vessel, viz. Mr Alexander Duncan, that the debt was not due? Depones, That the action was not raised by the deponent's advice; but he admits that, as the other owners of the Neptune owed the deponent a large sum of money, the deponent, one time he was going to Edinburgh, sometime betwixt the year 1824 and the date of raising this action in 1827, carried the ship's papers to Edinburgh, and left them with a Mr Annand, with the view of recovering the money so due to him; aud after he had returned home, he, by Mr Forbes's desire, wrote to Mr Annand to show some of these papers to Mr Robert White, agent for the pursuer : That this was after the raising of the action. Depones and admits, That he did write to Mr Duncan a letter, saying the debt in question was not due, but at the time he wrote such letter, he did not expect to be put on oath. Interrogated, Whether he recollects corresponding with the said Mr Robert Bain, as agent for the defenders? Depones, he does not recollect. And a letter,

dated the 8th day of January 1829, addressed to Mr Bain, and subscribed Alexander Jameson, being shewn to him, in which he states that one shilling of this claim is not due, depones and admits, That the letter is written by the deponent, and subseribed by him; but he cannot, when put on oath, swear to the fact of the debt not being due, as stated in said letter; which letter is docqueted and subscribed by the commissioner and the deponent, as relative hereto. And the letters, Nos. 22 and 23 of process, being shewn to the deponent, he acknowledges that they are written and subscribed by him."

The suspenders, Alexander Duncan, Alexander Thomson, and James Geddes, deponed pointedlyThat they knew nothing whatever of the account in question, or of the furnishings therein mentioned, having been made; and Geddes farther

44

Depones, in regard to the £15 bill, said to have been granted by the deponent, and credited in the account in process, That the deponent did grant a bill along with Alexander Jameson, which Jameson requested the deponent to accommodate him with, in order that Mr Forbes, the pursuer, might get the cash, which he had occasion to give to a man of the name of James Loggie, mason in Buckie, to whom Forbes was indebted, Jameson most solemnly promising that the deponent never should have any trouble with it; but when the bill became due, it was protested at Forbes's instance, and the deponent was obliged to pay it. Depones, That when he accepted said bill, he did not understand it to be an acceptance on account of any furnishings for the Neptune, but purely an accommodation bill, as aforesaid, and the amount of it, and expenses, are due to this moment; and denies, generally, that he knew any thing of the furnishings in question being made to the Neptune. Depones, That when he subscribed said bill, Jameson did not say that the bill was to go in part payment of any furnishings made to the Neptune."

The question, whether the debt was resting-owing, was not put to any of the suspenders. The JudgeAdmiral ordered cases, and having advised the same, and whole process; decerned in terms of the libel, with expenses, and added the following note:

"It is a settled point of law, that a ship's-husband binds the whole owners for furnishings made to a vessel, and it is established that Jameson was both the ship's-husband and a partowner; whatever suspicion, therefore, may attach to the oath of Jameson, I conceive that a reference to his oath was a competent mean of proof, and he has sworn that the debt is resting and owing. It appears to the Judge, also, that the competency of his oath was virtually sustained by the judgment of the Court of Session-for, by the judgment pronounced by this Court, his oath was found incompetent, and this judgment was altered without excluding his oath. If the other defenders have been

aggrieved by his oath, it is apprehended they have themselves to blame; for, without doubting that the judgment of the Court of Session is sound in point of law, yet, if they had acquiesced in the judgment of this Court, the pursuer must have been obliged to prove the furnishings to the vessel aliunde."

A charge being given on this decree, a bill of suspension was presented, to which answers were lodged.

Lord Craigie.-I think the interlocutor is right. The case which comes nearest to this is that of a wife who is præposita negotiis, and her oath is held to be the oath of party to prove the constitution of the debt; but when you come to the question of resting-owing, this is proved by the oath of the husband, to whom it belongs to pay the debt. I think it is proved here, that the furnishings were made; and if the suspenders had looked the accounts of the ship's expenses, they would most probably have found them entered therein. The question, therefore, is, holding the debt to be constituted, how are you to prove resting-owing? It appears to me that the constitution of the debt has been competently proved by the ship's-husband; and as it is not pretended to have been paid, the interlocutor is well founded. The respondent has nothing to do with the fact, that Jameson, who is a party, may have stated what was not cor

rect.

Lord Gillies.-This case is totally different from the case to which the suspender has likened it-that of a debt constituted by writings at the time. An entry by any servant, clerk, or book-keeper, when furnishings are made, will prove against the master; but would their oaths do so after the years of prescription? The Act of Parliament obliges the creditor to prove by the oath of party. The case of a wife may seem to be an exception; but it is not so-for a wife is, in the eye of law, eadem persona with her husband. If Jameson had not been a part-owner, the respondent could not have got his oath at all, except as a witness. Being a defender, his oath may prove resting-owing against himself, but it is no evidence against the other owners. There are only two parties to an oath-the party who refers, and the party who depones on the reference. In considering the case of the other owners, therefore, we must lay Jameson's oath out of view, and when we do so, the debt is not proved against them.

Lord Balgray agreed. A writing entered in the books at the time, is quite different from the subsequent oath.

son.

Lord President also agreed. The oath is good against JameIf he pays, he may operate his relief against the other owners if he can. We have nothing to do with that here. The question of resting-owing was never put to the suspenders, although it was put to Jameson.

Lord Craigie.-The clear evidence of the whole case proves resting-owing. The decisions referred to on the other side are quite correct, but they do not apply here.

The Court sustained the reasons of suspension, assoilzied the suspenders, and found them entitled to ex

penses.

Suspenders' Authorities.-Campbell v. Stein, 23d November 1813, Fac. Coll; affirmed on Appeal in 1815. Bell v. Gib, 231 November 1619; Monteith v. Smith, 19th June 1694; Ker v. Lady Covington, 13th March 1627; Ersk. 4. 2. 10.

Respondent's Authorities.-1. Bell's Com. p. 410-11, 4th Ed. Gleadon v. Tinkler, Holt, 586. Cochran v. Lyle, Kilk. No. 4, voce Husband and Wife. Paterson, 23d January 1771. Young, Trotter and Company v. Playfair, 2d December 1802. Syme. Douglas, Heron and Company, 15th January 1789. Buchanan, &c. v. Magistrates of Dunfermline, &c. 20th November 1828; 7. Sh. and D. p. 35. Leslie v. Mollison, 15th November 1800.

First Division.-Lord Ordinary, Moncreiff.-Act, Cuninghame and Hopkirk; Alexander Duff, W. S., Agent.-All. Hugh Bruce; Robert Whyte, W. S., Agent.-D. Clerk.