-Found not to be abandoned, although a record and cases had subsequently been prepared on other parts of the cause, and varrious reports of an accountant had been obtained on the merits. -IV. In these circumstances, the action being dismissed as incompetent, neither party found entitled to expenses.-V. The mandatory for the defender in the action of transference, is not liable for the expenses of these proceedings, but the pursuer found liable to the mandatory in the expenses of discussing the manda. tory's liability.-VI. Observed―There can be no prorogation of jurisdiction against a foreigner; and where the objection was to the want of jurisdiction, the point should have been decided without the nomination of a mandatory.

In March 1816, the pursuers raised an action of count and reckoning before the Court of Session, against the late Mr Ralph Rob, which, in June 1818, was remitted to an accountant, who having lodged a report, to which objections were stated, various other proceedings took place, and a remit was again made to the accountant on 1st July 1823. Some days before the last interlocutor had been pronounced, the defender Ralph Robb died, leaving a settlement, appointing his widow, the defender, to be his trustee. The pursuers raised and executed a summons of transference against the defender, and the children of the late Ralph Rob, to which defences were put in, stating,-1. That the defenders, being natives of England, and having no residence in Scotland, and no effects there, were not subject to the jurisdiction of this Court.-II. That the children did not represent their father; And III. That the present defender had acted only qua trustee; had incurred no passive title, and was responsible only to the Courts of England for her intromissions. The pursuers, on seeing these defences, abandoned that action, but, on 11th March 1824, they raised letters of arrestment ad fundandam jurisdictionem, against the defender; and having arrested in the hands of a natural son of the late Ralph Rob, who resided in this country, they raised a new summons of transference against the present defender alone. On this summons, the Lord Ordinary (Meadowbank) pronounced the following interlocutor, in absence of the defender:

"17th June 1824.-Decerns, and transfers in statu quo.” Thereafter, the Lord Ordinary, on 22d June 1824, "In respect the process has now been duly transferred against the relict and executrix of Ralph Rob, deceased, of new, remits to Mr Samuel Clerk, accountant, with power to him to receive evidence," &c.

Before the reclaiming days against this last interlocutor expired, the defender put in a representation, in which she recited both the foresaid interlocutors of 17th and 22d June 1824, and, besides a full argument on the merits, she maintained,

"In the first place, it is laid down as a general maxim of law, that no Judge can pronounce sentence on persons or subjects without his territory. As, therefore, the representer is a native of, and residenter in England, she contends that she is not amenable to the jurisdiction of the Courts of this country, and cannot consequently be affected by any judgment of these Čourts. If this rule of law is well founded, the representer must necessarily be assoilzied altogether from the action of transference. But, in the next place, trustees are by law accountable only for the trust-funds in their hands. The representer is not the representative of her late husband, nor liable universally for his debts. She is merely and nominally a trustee acting under his trustsettlement; and in that character, she can only be liable to the

extent of the trust-funds in her hands, under deduction of the expenses attending the execution of that trust."

And in conclusion, the defender prayed the Lord Or+ dinary

"to resume consideration of this case; to recal the several interlocutors represented against; and in respect of the represen ter's living without the jurisdiction of this Court, to assoilzie her from the action with expenses; or, at least, to find that she can only be liable, as trustee under her husband's settlement, to the extent of the trust-funds in her hands, under deduction of all expenses attending the trust. And, at all events, to recal the remits to the respective accountants, and, before farther procedure, to make avizandum of new with the accountant's report, objections thereto, answers, replies, duplies, and whole process; and thereafter, to pronounce such interlocutor upon the merits of the different points brought under consideration, as to your Lordship may seem proper."

Upon this representation, the Lord Ordinary, after making two previous orders for the production of a mandate, pronounced, on 13th January 1825, the following interlocutor:

"Renews the order for the mandate, formerly ordered, being produced, and also to lodge with the accountant all the documentary evidence upon which the defender means to found; and that within eight days, under certification that no farther writings shall hereafter be received by the accountant."

Various documents were then produced; and among others, a mandate in favour of Mr Andrew Hutton, writer, Stirling, in whose name, as well as that of Mrs Rob, the subsequent proceedings were conducted. After this mandate was lodged, the Lord Ordinary, on 5th February 1825,

"In respect of the mandate and documentary evidence now produced, remits of new, before farther answer, to Mr Clerk, in terms of the interlocutor of 22d June 1824, and renews the remit to Mr Claud Rassell, accountant, to report in terms of the interlocutor of 6th March 1823, (this was a remit as to the accountant's charges. ) reserving the farther consideration of the representation until the additional report is produced."

In terms of the interlocutor recited, parties went before the accountant; and after a farther production of documents by the defender, Mrs Rob, and her mandatory, the accountant made an additional report, which went to avizandum. The case then proceeded, and the defender, and her mandatory, in a paper entitled Objections to the Accountant's last Report, referring to former pleadings given in by Ralph Rob, upon the question of accounting between the parties, and lodged,

humbly and earnestly entreat" the Lord Ordinary "to pronounce judgment in reference to those principles of accounting, as to which the parties are at issue."

After this, the process was appointed to be enrolled, with a view, as stated in a note by the Lord Ordinary, of determining "the form it would be best to adopt, for having the case fully discussed." On 1st December 1825, the Lord Ordinary,

"Having heard parties' procurators, appoints Mrs Mary Rob and her mandatory to give in a condescendence, in terms of the statute 6 Geo. IV. cap. 120, and relative Act of Sederunt, within four weeks; appoints answers to the condescendence, also in terms of the statute, and relative Act of Sederunt, to be given in within four weeks thereafter. Before answer, as to the previous expenses, appoints Mrs Christian Reoch or M'Lachlan and husband, to lodge in process an account of these expenses," &c.

The rest of the interlocutor related to the payment of the accountant's charges. The condescendence and

answers ordered by the above interlocutor were lodged, and were afterwards revised and given in, accompanied with notes of pleas in law, in terms of an order to that effect; and, by an interlocutor of March 11, 1826, previous to the final revisal of the condescendence and answers, cases were ordered to be put in by both parties. Neither in the condescendence and pleas (which were confined to one branch of the cause), nor in the cases, was any mention made of the question of jurisdiction. On 22d May 1827, the Lord Ordinary, upon advising the cases, granted a diligence for recovering writings, and ordained the defender, Mrs Rob, and any other party to the cause not furth of Scotland, to appear before the commissioner at Edinburgh, and depone and exhibit; and remitted, of new, to the accountant, reserving all questions of expenses. The accountant made a final report, shewing a balance in the pursuers' favour of £3212, 16. 4. The expense of these various reports by the accountant exceeded £1200. The record was closed on 8th July 1829; and the case being enrolled for debate, upon the report and objections lodged for the defender, in which the question of jurisdiction was stated as a preliminary point, the Lord Ordinary, on 26th January 1830, appointed mutual cases, arguing the question of jurisdiction, to be lodged, and made avizandum to the Court. The pursuers pleaded—I. The defender is now foreclosed from stating any objection to the decree of transference on the ground of want of jurisdiction. The whole course of procedure proves, that the reservation in the interlocutor of 5th February 1825, did not apply to that question at all; but, assuming that it did, still the farther cousideration of the representation was only reserved till the additional report should be produced, after which the procedure was such as necessarily imports a repelling of the objection to the jurisdiction, and a complete abandonment of it by the defender. The motion by the defender for a judgment on the merits, and the subsequent preparation of a record and cases thereon, implies a relinquishment of all preliminary objections. If the defender had considered herself aggrieved by the interlocutors of the Lord Ordinary, by which her objection to the jurisdiction was not per expressum disposed of, she had it in her power to have reclaimed to the Court; and not having done so, she must be held to have acquiesced. Farther, the representation founded on, although it complained of the decree of transference, was not lodged in the process of transference, but in the original action.— II. The plea of want of jurisdiction is not in itself well founded; for-(1.) The action of transference was preceded by an arrestment jurisdictionis fundanda causa, to which it is no relevant objection that there are no funds in the hands of the arrestee, seeing it is clear that the arrestee had a long course of transactions, not only with Ralph Rob, but with Andrew Rob, whose estate Ralph managed as tutor for Andrew's children; and, consequently, it is only by an exact scrutiny of these transactions that it can be determined whether he is debtor to the defender or not, which scrutiny cannot be gone into Irere, it being periculo petentis whether there be funds to warrant the

arrestment, and, consequently, whether the decree shall be available or not. (2.) There was no necessity for an arrestment jurisdictionis fundandæ causa. The jurisdiction here was founded by litiscontestation against the defender's predecessor, and the process against the representative is merely an accessory process, for the purpose of continuing the original process against him, on his predecessor's death. (3.) The obligation of the defender's husband, to account as a tutor-at-law, was an obligation to account in this country, undertaken by him, not only for himself, but for his heirs, executors and representatives. A party resident in England is entitled to be admitted to the office of tutor (Rob v. Rob, 22d December 1814), which could not be the case if he and his representatives were not bound to account here. The original contract and ground of action had their rise in Scotland, and Scotland was the place where the contract was to be carried into execution. The defender pleaded-I. The objection to the jurisdiction was sufficiently stated in the defender's representation, and was reserved by the Lord Ordinary's interlocutor of 5th February 1825. This representation was applicable to the action of transference, which just formed a part of the original action, and is so numbered by the Clerk. The defender agrees that the preliminary question should have been ante omnia disposed of; but she could not controul the Lord Ordinary, who, although the case has depended for upwards of 13 years, has never pronounced a single finding on the numerous written pleadings that have been lodged. The defender's representation has never been disposed of, and there is nothing in the proceedings which prevents the question of jurisdiction from being still considered an open question.-II. The plea of want of jurisdiction is in itself well founded. (1.) There were no funds in the hands of the arrestee; and, if the doctrine of the pursuers were to be adopted, a jurisdiction might be founded against foreigners in every case. The messenger might execute arrestments in the hands of his own clerk, or of any one else. But this will not do. It is essential that there should be funds. (2.) The defender can no more be held amenable to the jurisdiction of the Scots Courts, in an action of transference, than in an original action. The general rule is stated by Erskine, I. 2. 16, without any exception. The case of Dundas v. M'Leod is not applicable to the present case, where no arrestment was used against the late Ralph Rob. The real question in the case of Dundas was with the cautioner. (3.) The representatives of a tutor-at-law are in no different situation from any other representatives.

At the advising, on 25th June 1830-the pursuer having contended, that the mandatory was at all events liable for the expenses-the Court,

"before answer, ordain the parties to give in mutual cases on the point of the liability of the mandatory for the expenses incurred by the pursuers in this cause, since the representation, No. 145 of process, was put in."

In the pursuers case, on this point, they pleaded generally, that as it had been decided in Lindsay v. Lindsay and mandatory, 8th February 1827; 5 S. and D. p. 310., that a mandatory for a defender was liable

in expenses; and as the mandatory in this case was dominus litis, and bound to have had the objection to the jurisdiction disposed of without going into the merits, he must pay the expenses to which the pursuers had thus been unnecessarily put, if that objection was sustained. Answered-There has been no impropriety on the part of the mandatory in conducting the cause, and there is no precedent or principle for subjecting him personally in expenses, where his principal is not liable. The general rule fixed in Leigh v. Rose, 19th Dec. 1792, that a mandatory is not personally liable in expenses, has never been departed from, although it has been relaxed, where the conduct of the mandatory has been such as to subject him in personal liability. The mandatory intrusted the case to regu lar practitioners before this Court, and although the Lord Ordinary chose to make repeated and expensive remits to an accountant, without pronouncing any finding on the defender's pleadings, the mandatory and practitioners intrusted with the management of the cause were not warranted in incurring the risk of additional expenses, by running counter to the views of his Lordship, and cannot be blamed for the inaccuracy of those views.

On the question of jurisdiction

Lord President said, there can be no prorogation of jurisdiction against a foreigner. The Court cannot entertain the question at all, unless they have the power to enforce execution of their judgment, which they could not do in such a case. If funds are arrested, we pronounce a judgment in order to attach the funds, but it is different where there are no funds to attach. Lord Balgray agreed.

Lord Gillies also agreed. The plea, that the defender is not subject to the jurisdiction of this Court, could not be more distinctly stated than it is in the representation; and it is actually reserved to her. It was equally the duty of the pursuer as of the defender, to have had this plea disposed of in limine.

Lord Craigie. I am entirely of the same opinion. The plea, that the defender was not subject to the jurisdiction of this Court, was stated before going into the discussion on the merits, and it stood clearly on record all along.

As to the liability of the mandatory for expenses, Lord Balgray said, The mandatory is responsible for the issue of the cause, and I consider him as dominus litis; but the question still remains, Has the mandatory acted so as to subject himself in the expenses? That is the only point. I think both parties were in fault. It was the duty of both to have got the objection disposed of, but it peculiarly belonged to the pursuer to see that he had the proper party in the field. I cannot find any thing improper in the conducting of the litigation on the part of the mandatory; but I can easily see an interest on the part of the pursuers to go on. Evidence, by writing and by witnesses, was obtained, which was of importance to them. It was, therefore, their interest to have an expiscation before the ac. countant, which might be of future use. The mandatory has done nothing to warrant us in finding him personally liable in

expenses.

A re

Lord Craigie.-I am clearly of opinion that the mandatory is not liable. My only doubt is, Whether the pursuer should not be found liable in expenses to the mandatory? No blame attaches either to the mandatory or to those employed by him. The decree of transference was pronounced in absence. presentation was given in, stating the objection, which has not till now been disposed of. The question recurs, Who was the author of all this expense? I think it was the pursuer, who proeeeded against a party not subject to the jurisdiction of this Court.

I

The

Lord Gillies.-I am very much of the same opinion. action was brought against a foreigner, not resident here, and, as it turns out, who had no effects here. It is said that it is luce clarius that the objection should have been disposed of in limine. say it is luce clarius that the action should never have been brought. An arrestment was laid on jurisdictionis fundanda causa; but it turns out there were no funds in the hands of the arrestee. The arrestment, therefore, is entirely inept. A representation was very properly given in, stating the objection to the want of jurisdiction, as it might not be agreeable to a person who once resided in this country to have a decree against her, though that decree should be ineffectual. The Ordinary at once ordered a mandate to be produced. It was the duty of the pursuer, as much as of the mandatory, to get the objection disposed of. If it can be shewn that the mandatory acted in mala fide, I can understand the argument; but the mandatory naturally rested on the Ordinary's judgment, as the objection was reserved. I think the mandatory should get, and not give ex

penses.

Lord President concurred. It was totally incompetent to have a mandatory at all, and his appointment should never have been ordered. Where the objection is of such a radical nature as that there is no jurisdiction at all, it is ridiculous to ordain the party to sist a mandatory, who can only be appointed in cases in which the party himself ought to be here.

On a motion for expenses on the part of the defender, Mrs Rob,

Lord President observed, We cannot give expenses to a party whose objection is, that she neither is nor can be here.

Lord Gillies. That is an important question, and I doubt whether we cannot give expenses. A person cited, over whom the Court has no jurisdiction, is often found entitled to expenses; and I am not prepared to say that a foreigner is not entitled to appear in this Court, to the effect of having it decided that he is not subject to our jurisdiction, and to obtain expenses. I have no objections to refuse expenses, but it must be on the whole circumstances, without deciding this point.

Lord Craigie.-If we decide on the circumstances, generally, that no expenses should be given to the defender, I have no objections; but I conceive it quite clear, that a party appearing, on being cited to a Court possessing no jurisdiction, is entitled to the expenses of supporting his objection.

Lords President and Balgray concurred, that the decision refusing expenses was on the whole circumstances.

Expenses were then moved for on the part of the mandatory. The Court were clear that the mandatory must have the expenses of defending himself against the claim made against him for expenses; and the following interlocutor was pronounced:

"Recal the interlocutors complained of in the representation, No. 145 of process; sustain the objection to the jurisdiction of this Court, pleaded by the defender, Mrs Mary Rob; dismiss the action of transference, and decern: Find there are no grounds for subjecting Mr Andrew Hutton, the mandatory of Mrs Rob, in expenses; assoilzie him from the said claim, and decern: Find the said Andrew Hutton entitled to the expenses incurred in defending himself against the said claim, subsequent to the 21st June last: Allow an account to be given in," &c. Pursuers' Authorities.-(2) Dundas v. M'Leod, 13th December 1743; M. 2038; 1 Bell's Com. p. 338. Rob v. Rob, 22d December 1814.

Defenders' Authority.-(2) Ersk. 1. 2. 16.

First Division.-Lord Ordinary, Meadowbank.-Act. Lord Advocate (Jeffrey), Jameson & Wood; Alex. Dougal, W. S., Agent.-Alt. Solicitor-General (Cockburn) & J. S. More; John Renton, W.S., Agent.-H., Clerk.

14th May 1831.

No. 346.-MOLISON, Pursuer, v. HIS CREDITORS. Cessio-Bonorum-Pension-A lieutenant, having a wife and five children, and enjoying half-pay of £82 per annum, found No. XXVII.

entitled to the benefit of the cessio, on assigning £20 per annum to his creditors.

The pursuer was a lieutenant in the army, on half pay. Previous to the peace, he took a farm at the rent of £600 per annum, but in consequence, as was alleged, of the subsequent depreciation of agricultural produce, he became insolvent. His debts amounted

to £6000; and his funds, it was expected, would yield about 10s. in the pound. He had a wife and five children. No opposition was offered to the cessio; but it was contended that he ought to assign to his creditors a portion of his half-pay, which amounted to £82 per aunum. The Court found the pursuer entitled to the benefit of the cessio, on assigning to his creditors £20 per annum out of his half-pay.

First Division.-Act. Dauney.-Alt. Neaves.

14th May 1831.

No. 347.-JOHN & JAMES MITCHELL, Complainers, v. ALEXANDER MEIN, Respondent.

Expenses-Honorary-I. Circumstances in which the fees of two counsel only allowed, although three had been actually employed. -II. Observed―The number of counsel whose fees ought to be allowed against a losing party, depends on the nature of the case.

In this case, which was a petition and complaint against the respondent, as trustee on a sequestrated estate, and is reported antea, Vol. III. p. 65, the Court found (2d December 1830,) that there had been irregularities on the part of the trustee, but that it would be inexpedient to remove him from his office, and found him liable in expenses, subject to modification. When the account came to be audited, it appeared that three counsel had been employed for the complainers, viz. the Dean of Faculty, Mr Skene, and Mr Neaves. The Auditor struck off the fees paid to Mr Skene, on the principle that the employment of two senior counsel was unnecessary. The complainers objected to the Auditor's report, and pleaded-That there was no such general rule as that gone upon by the Auditor; and that this was a case of such intricacy and importance, that three counsel were necessary. Answered, Although there may be no general rule on the subject, the employment of three counsel was not called for in this case, which was merely an ordinary petition and complaint for the removal of a trus

tee.

Lord Balgray.-A question of expenses, raised after the circumstances of the case are no longer fresh in our recollection, can never be so satisfactorily disposed of as at the time. By the terms of the interlocutor, the account falls to be modified by the Court. The Auditor has struck off certain charges as illegal; but that has nothing to do with the modification, which falls to be fixed by the Court, after the Auditor has taxed the expenses at the proper amount. I do not see how it is possible that the Auditor can make a general rule that the fees of three counsel shall not be allowed, as there are many cases in which the employment of several counsel may be quite proper and necessary. But, on the other hand, where it can be shewn that such employment was quite unnecessary, the losing party is not to pay for the over anxiety of his opponent. So far as I remember, this was not a case of such intricacy or importance as to require more than two counsel. Having disposed of this point, the next question is, to what the account should be modified. Its total amount is £143, 2. 7., and I would propose to modify it to £100.

Lord President. If the trustee had employed three counsel, I could have understood the charge, as he must naturally have

felt an anxiety as to a case where his character was to be affected; and on his part such employment would have been right. But I do not see how the complainers should have been so anxious; and I think, in the circumstances of this case, the fees are properly disallowed.

Lord Gillies agreed. There can be no general rule that the fees of three counsel are not to be allowed, as it may often happen that four counsel are required, while there may be other cases that scarcely require two.

Lord Craigie concurred. There is no general rule on the subject. All that is required is, that the party be able to shew cause why three or four counsel were employed. The trustee in this case might have employed several counsel, as the case was of importance to his private character; but there was no call on the other party to do so.

The Court repelled the objection; modified the account to £100, and decerned.

First Division.-Act. Dean of Faculty (Hope); John Cullen, W.S., Agent.—Alt. Keay; Charles Fisher, Agent.—S. Clerk.

14th May 1831.

No. 348.-JOHN MILLER & OTHERS, Pursuers, v. MRS
AMELIA MOODIE or ANDERSON, Defender.

Expenses-Circumstances in which a successful party found entitled to the expense of printing a long correspondence as an Appendir to a Reclaiming Note, although the Court thought the correspondence not material to the determination of the cause.

In this case, which is reported ante, Vol. III. p. 346, the Court, on 4th March 1831, found the defender entitled to expenses, subject to modification. The pursuers objected to the Auditor's report, that a sum of £34, as the expense of printing a long corre spondence between the agents, which the Court thought had no bearing on the case, had been allowed to form part of the account. Answered,-Part of the corre spondence was produced by the pursuers, and referred to in the 9th article of their condescendence. This led to the whole being produced; and as the Lord Ordinary appeared to found his opinion partly on the correspondence, it was thought proper that it should be printed.

Lord Balgray.-I certainly thought there was a great deal of correspondence in the appendix which had no relation to the

cause.

Lord Craigie.-I understand that all productions referred to in the argument must be printed, and it would lead to very diffcult discussions to say what is or is not relevant. Had it not been for the dilatoriness of the men of business on both sides, the disputes between the parties might have been settled at very little expense. The correspondence was between the agents, to throw the blame on each other. But, if it was to be printed at all, it could not be garbled.

Lord President.-If the condescendence refers to correspondence, as proving certain averments, the correspondence must be printed to enable us to judge. We so often find fault with parties for not printing productions, that I do not see well how we can object to it here.

Jameson, for Pursuers.-The Court at one time were inclined to give expenses to neither party. I submit that that ought to weigh in the question of modification of the account, which, if this charge be allowed, amounts to £110, 7. 4.

The Court repelled the objection to the Auditor's report; modified the account of expenses to £90,

and decerned.

First Division.-Act, Jameson; Robt. Wilson, S.S.C., Agent.-Alt. J. S. More; MacRitchie, Bayley and Henderson, W.S., Agents.-D. Clerk.

17th May 1831.

No. 349.-DUKE OF ATHOLL'S CURATORS, Petitioners. Curator-A curator cannot be named by a father to his son, who is insane, but of full age.

An action, to which the late Duke of Atholl was a party, depended before Lord Moncreiff, in which an interlocutor was pronounced, against which a reclaiming note was presented. In the meantime, the Duke of Atholl died, leaving a deed, nominating curators to his son, the present Duke, who was of full age, but insane. These curators now appeared, and craved leave to sist themselves as parties to the action, in place of the late Duke, but the Court, being of opinion that a father had no power to nominate curators to his son, who was of full age, although insane, superseded the cause till a curator dative should be appointed.

First Division.-Act. Keay.

17th May 1831.

No. 350.-JOHN ANDREW, Suspender, v. KENNETH FRASER, Charger. Assignation-Cautioner-The cautioner for a messenger having been found liable for the contents of a bill which the messenger had neglected duly to recover—Held, that the cautioner is bound to pay, only on receiving an assignation to the debt and diligence. Fraser charged Andrew, as one of the cautioners of Alexander Barnetson, messenger-at-arms, to make payment of £18, 13. 6., being the balance of a bill drawn by the charger on Messrs J. Reid and D. Sutherland, with interest since 14th June 1823, for which debt, Andrew, as Barnetson's cautioner, was found liable, by decree of the Court, on 28th January 1831. The circumstances of the case are fully detailed ante, Vol. III. p. 219. Mr Clyne, S.S.C., as agent for Fraser, and having a written authority to discharge the debt, applied to Mr Andrew's agent for payment of the bill, and of certain expenses found due by the Court. The expenses were paid, but the agent for Mr Andrew insisted, that, before paying the bill, he should be put in possession of an assignation, at Mr Andrew's expense, to the debt and diligence, and that Mr Clyne should discharge certain arrestments which he had used at his own instance, as a creditor of Fraser's, in the hands of Mr Andrew, as Fraser's debtor. Mr Clyne stated, that he conceived his receipt was enough, together with delivery of the bill and diligence, to enable Mr Andrew to operate his relief, but that he would give an obligation to grant such an assignation as might be required; and as to the arrestments, he could not consent to discharge them while Mr Fraser's large debt to him remained unpaid, but that his receipt would operate as a loosing to the extent of the sum paid. After some farther correspondence, a charge of horning was exe. cuted at Fraser's instance against Andrew, for the contents of the bill and interest. Andrew suspended, and pleaded-That he was entitled to an assignation to the bill and diligence, and to have the arrestments used by Mr Clyne in the suspender's hands, loosed, or to have Mr Clyne's name as a party to the assignation. Answered,-The charger holds a decree in foro against the suspender, decerning him to pay the

debt in question, without any qualification as to the granting of an assignation. The present bill is therefore incompetent. Farther, the charger's agent, who was authorised to discharge the debt, offered to subscribe an obligation that an assignation should be granted. The Lord Ordinary (Craigie,) on 12th April 1831,

"Having considered this bill, with the answers and productions, upon the charger subscribing the assignation required, and prepared in the ordinary form, which last is to be done within four days, and it being understood that the charger's agent, who subscribes the answers, is to pass from the arrestments used by him in the suspender's hands,-refuses the bill."

On the day after this interlocutor was pronounced, the suspender's agent sent a draft assignation to Mr Clyne, stating, that unless the assignation was granted within the time allowed, he would present a note to have the bill passed. Mr Clyne returned the draft, stating, that he had revised it, under protest that he did not acquiesce in the Lord Ordinary's interlocutor, unless the debt and expenses were immediately paid, and stating, that as to the arrestments, he had no objections to grant a letter, loosing them to the extent of the debt paid, although he conceived such letter to be superfluous. The suspender's agent declined to extend the assignation on this footing, but stated— "On hearing from you that Mr Fraser is ready to sign the assignation, on receiving the amount of the debt assigned, and that you are ready to loose the arrestments in terms of your letter, I shall immediately extend the deed and send it for signature.” Mr Clyne replied,

"That Mr Fraser is ready to sign the assignation is more than I can affirm. Presuming he may, I will endeavour to get it signed, on your sending me the extended deed for that purpose. But that you are entitled to withhold from me payment of the debt until Mr Fraser executes an assignation, is a proposition that, with all due submission, I cannot admit."

A reclaiming note was then presented for Mr Andrew, against the Lord Ordinary's interlocutor, in so far as it did not refuse the bill unconditionally, and find the suspender liable in expenses. At the advising,

Lord Balgray said, This case is as clear as sunshine. Andrew was cautioner for the messenger, and a decree was obtained against him for the bill of £18 odds. The bill is therefore fortified by a decree. Mr Clyne may have full power to discharge the debt, had the question been with the principal party. But the moment it comes to be the case of a cautioner, the latter is entitled to demand an assignation to the debt and diligence, including the decree, which can only be transferred by an assignation. Therefore it is clear that Fraser must sign the assignation before receiving payment. There has been an extent of correspondence here which it is distressing to see; but the case admits of no doubt.

The other Judges concurred, and the Court adhered, and found the charger liable in expenses.

First Division.-Lord Ordinary, Craigie.-Act. Keay; G. I.. Sinclair, W. S., Agent.-Alt. Boswell; D. Clyne, S. S. C., Agent.-W. Clerk.

18th May 1831.

No. 351.-ALEXANDER THOMSON, Pursuer, v. George
IZAT, Defender.

Master and Servant-Ship- Carpenter—Circumstances in which a ship owner found justifiable in dismissing (on the ground of unskilfulness,) a carpenter who had not subscribed any written articles of agreement, and who failed to prove an unconditional verbal engagement.