Council agreed to grant a tack of the ground, with the right to a fall, and a supply of water from the Town's mill dam, for twenty years, at a rent (or as it is termed in the minute, a feuduty) of 2s. 6d., under condition, that, at the end of the lease, the town should either pay the value of the mill to be erected, or should grant the tacksman a new tack: Finds, that as nothing is stated in these minutes, as to the length of the new tack, which was to be given as an equivalent for the value of the mill, it must be held to be one of the same endurance as that of the original one: Finds, that as the Magistrates did not, in 1788, resume possession, paying the value of the mill, the tacksman acquired right to an additional term of twenty years, which, supposing the original to have commenced at Martinmas, the first term after the date of the minutes, was current till Martinmas 1808; at which term accordingly (supposing no other right to have been granted), it must have been competent to the Magistrates to have entered to possession, without paying any thing for the buildings: Finds, that the only subsequent Act of Couneil which appears connected with the mill, is that of 23d April 1791, by which the tacksman obtained liberty to add six feet in length to the waulk-mill, he paying 6d. of yearly feu for the same:' Finds, that there is nothing in the terms of this minute, which could have the effect to change the right to the mill from a tack to a feu; the stipulation as to the additional sixpence being in the same terms with those used in the original minute, where feu-duty is plainly synonymous with rent: Finds, that it was not competent to the Magistrates, even with the authority of the Council, to alienate the property of the burgh, without a fair and reasonable equivalent; and that, considering the value of the subject, and the trifling or elusory rent paid under the tack, the gratuitous conversion of this right into a feu would have been ultra vires: Finds no competent evidence of any Act or resolution of the Council conferring a right of feu, whether gratuitously or for value, no minute to this effect having either been produced by the defenders, or being to be found in the Council books, while the evidence founded on by the defenders, supposing it to afford some presumption of the existence of such an Act, has no tendency, however slight, to shew that any equivalent was given in return: Finds, that, in these circumstances, it was not competent to the Magistrates to grant the charter under reduction; and therefore, reduces, decerns, and declares, in terms of the first conclusion of the libel, and decerns and ordains the defenders to flit and remove from the subject at the term of Martinmas next, reserving consideration of the claim made by the defenders for meliorations; as to which, before answer, appoints them to give in a condescendence specifying the particular meliorations for which value is claimed, and the precise times when each of them was made."

"11th June 1828.-The Lords having considered this note, with the closed record, cases for the parties, and whole process, and heard counsel thereon, adhere to the interlocutor of the Lord Ordinary reclaimed against, and refuse the desire of the note: It being understood by the Lords, that, notwithstanding any special findings in that interlocutor, there shall be reserved to the defenders the consideration of all their claims for meliorations, whether under the original tack, or any subsequent rights in the defenders or their anthors; and to the pursuers their objections to all such claims: As also, the claims of expenses hinc inde; and remit back the cause to the Lord Ordinary to proceed accordingly."

But, before the reduction of the charter was raised, viz. on the 12th of February 1822, the defenders had applied, by petition to the Town, for leave to alter their machinery, when, inter alia, the Council passed the following resolutions :

"1st, That the new cut proposed would be injurious to the Town's mills; and, 2d, that it appears by the charter granted by the Magistrates to Adam Clapperton, and by the various minutes of Council referred to in it, that the only machinery to which Robert Clapperton or his heirs ever obtained any grant from the Town was a waulk-mill: That it appears, therefore, to the Council, that Robert Clapperton and his heirs, and Messrs Thomsons, as their successors, have no right to any other machinery than a waulk-mill; That if they have erected any other

additional machinery, they have done so without any grant or authority from the Council, and the Council reserves full power and authority, at this or at any other time, to insist for the removal of such unauthorised machinery, and to the proprietors and occupiers of the premises which belonged to Robert Clapperton, confining themselves to that machinery, to which alone they had a grant, viz. a waulk-mill; and it is therefore resolved, that it is proper, both for the sake of the Town's interest, and in fairness and justice to Messrs Thomsons, to intimate to them the opinion entertained of the rights of the parties, and the resolutions now come to by the Council."

In obedience to the interlocutor, 11th June 1828, the question of meliorations proceeded. And in November 1829, the defenders brought an action against the Magistrates, to have their right to meliorations, as at Martinmas 1828, declared; and to obtain payment of £1290, 15. 6, as the computed value of the same. The two actions were conjoined. The pursuers pleadedThat they had been liable under contract only for the value of the waulk-mill, and that on a certain condition, which had never occurred: That there could exist no claim for recompence, except as to two-thirds of the waulk-mill, the only subject claimed; nor, even as to that, any farther back than 1817, or farther down than May 1822, when opposition was first intimated, nor as to any expenses which altered the terms of possession, or did not benefit the Town, nor where the Town were willing to allow the removal of the improvements; and that the claim for meliorations was compensated by that for rents. The defenders pleaded-That they were entitled to the entire value of the whole buildings, &c., as being stipulated for in 1768,-as being purchased by them at a full price,-as erected and improved under the eye, and with the acquiescence of the Magistrates, as benefiting the property to the full value, -and as incapable of removal without destruction.

"The Lord Ordinary (11th March 1830), having considered this process and productions, with the closed record, and heard parties' procurators, finds, that all questions as to the construction or effect of the original contract of lease, in regard to this claim for meliorations, are kept open by the interlocutor of Court of the 11th June 1828: Finds, that though the most probable construction of the contract seems to be, that if the Magistrates adopted the alternative of giving a new lease to the tenant, after the expiry of the first twenty years, no claim for the value of the mill and appurtenances then erected could be made, this construction cannot be applied in the actual circumstances of the present case, in respect that no new lease for a definite term was in fact granted, and that the tenants were, at a later period, led to continue their possession, and their operations on the premises, in the bona fide belief that they had obtained a permanent title to the property by feu-right: Therefore finds, that the pursuers are entitled to the value of the erections and improvements of a permanent nature, made on the subjects held by the lease, or other ostensible title, according to the actual state of them at the term of their removal: But finds, that this claim cannot extend to any thing done on ground not comprehended within the ground which was evicted from the pursuers by the decree of reduction : Finds, further, that the claim does not extend to any of the furniture or machinery, which is properly of a moveable nature; but that it does comprehend every thing which is legally to be considered as fixture, forming a part of the heritable subject. And with these findings, remits the case to the Jury Court, in order that the sum due for meliorations may be ascertained.— Note. It does not appear to the Lord Ordinary, that the mere continuance of the tenant in possession after the twenty years, was the same thing, as to the present question, with the actual granting of a new lease for twenty years. For, 1st, He is not satisfied that the Magistrates might not in any year have removed the tenant, on paying the value of the mill; and 2d, If a new

lease had been executed, it must have shewn precisely the footing on which the tenant stood as to his meliorations then made, or to be made."

The Magistrates reclaimed in toto; the defenders, in so far as regarded operations performed on ground not evicted, and machinery, &c. of a moveable nature.

Lord Cringletie observed, that there never was a regular tack. At the end of 20 years there was no offer to renounce, or claim for the value of the mill. Then, 29 years' possession ensued, so advantageous, that it ought to obliterate the claim for that value, even if (what was doubtful) a claim for meliorations could be made by a tenant, without any agreement. The question under the lease, and that under the permanent title of 1817, were quite distinct. After 1817, the defenders were entitled to hold themselves possessors of a real right until their bona fides was destroyed, not by the raising of an action, but by a judgment. After that judgment, the defenders could only revert to the lease.

Lord Glenlee thought that the Lord Ordinary truly meant meliorations by erections, &c. There must be benefit as well as expense, in order to found a claim. The original mill could not be included.

The Lord Justice-Clerk could see no claim to the value of the original mill under the lease.

The Court

"Alter the interlocutor complained of: Find the pursuers entitled to the value of permanent meliorations on the subjects contained in the feu-right, now reduced; the same having been made subsequently to the date of that feu-right, and prior to the judgment of this Court reducing the same: Remit the case to the Lord Ordinary to proceed accordingly, and reserve all questions as to expenses."

Authorities for Defenders.-Stair, I. 8. 6. Ersk. III. 1. 11. 2. 4. Note. Macnair, May 18, 1802. Arkwright v. Billinge, Dec. 3, 1819.

Second Division.-Lords Ordinary, Newton, Moncreiff.Act. Solicitor-General (Hope), Gr. Bell.-Alt. Dean of Faculty (Jeffrey), Watson.-Walter Horsburgh, W.S., R. Mercer, and J. S. Darling, W. S., Agents.-Mr Thomson, Clerk.

13th November 1830.

No. 4.-ALEXANDER M'DOUGALL, Pursuer, v. WILLIAM WIGHTON, Defender.

Cautionary Obligation-Testing Clause-Witness-Held that a cautioner, to whom a bond of caution had been sent for signature by the agent for the creditors in a sequestration, (although on behalf of the trustee elected and intromitting), signed by the trustee and the two other cautioners in the bond, is not entitled to be liberated from liability under the bond, and to have the bond reduced, on the ground that the two other cautioners neither adhibited nor acknowledged their subscriptions before the subscribing witnesses.

Martinsons and Sommerville became insolvent. The defender was appointed their extrajudicial trustee, and Thomas Duncan their law-agent. But a creditor obtained a sequestration. The defender was made interim-factor, and Thomas Duncan, agent. James Cameron, merchant in Dunkeld, and agent for the Perth Bank, was afterwards elected trustee, and agreed to give, as cautioners for £1000, James Stevenson, John Duff and Hugh M'Dougall, brother of, and represented by the pursuer. Duncan prepared the bond of caution. Cameron was confirmed trus

tee.

Two years afterwards he left the country, in debt to the estate. The defender was elected in his room. Stevenson died. Duff became bankrupt. The defender claimed from the pursuer what Cameron owed. The pursuer brought a reduction of the bond -in which action,

"The Lord Ordinary (Nov. 14, 1826), having considered the revised cases for the parties, and whole cause, Finds that no objection lies to the bond under reduction, in so far as the pursuer is a party therein, on the alleged ground that the instrumentary witnesses did not see the principal party, James Cameron, adhibit his subscription, nor heard him acknowledge it, in respect that such an objection would not have been competent to the said James Cameron, in consequence of the letter from him of 17th February 1820, and of his having acted as trustee on the sequestrated estate of Martinsons and Sommerville; finds the allegation on the part of the pursuer, that the signature of James Stevenson at the said bond is forged, is not a relevant ground of reduction, so as to liberate the pursuer from the consequence of having subscribed the bond as one of the cautioners for Cameron, in respect it is not alleged that the creditors for whose behoof the bond was granted, were parties to the said alleged forgery, or, knowing it to be a forgery, induced the pursuer to subscribe under the belief that it was the genuine subscription of Stevenson; and if the pursuer intended to subscribe as a cautioner, and to be bound only in the event of Stevenson being to be a joint obligant with him, it was his duty to have satisfied himself as to the validity of Stevenson's subscription, before adhibiting his own subscription to the bond; therefore, upon the whole, repels the reasons of reduction, assoilzies the defender, and decerns; but finds no expenses due."

On a reclaiming note, a remit was made to the Jury Clerks to prepare an issue. And the subsequent procedure appears in the following special case, under authority of the Jury Court:

"It was admitted, that James Cameron, banker in Dunkeld, was elected trustee on the sequestrated estates of Martinsons and Sommerville, and that he offered, as his cautioners, James Stevenson and John Duff, merchants in Dunkeld, and the late pursuer, Hugh M'Dougall: It was also admitted, that the bond of caution, No. 1-3 of process, bears to be subscribed by the said James Stevenson, John Duff, and the late pursuer, Hugh M'Dougall, and the issue sent was,

"Whether the said bond is not the deed of the late pursuer, Hugh M'Dougall?

"Afterwards, to wit, at Edinburgh, the 5th day of January 1830, before the Right Honourable William Adam, Lord Chief Commissioner of the Jury Court in civil causes, and the Honourable David Monypenny of Pitmilly, and Joshua Henry Mackenzie of Mackenzie, Lords Commissioners of the said Court, compeared the said pursuer and the said defenders by their respective counsel and agents, and a jury having been impannelled and sworn to try the said issue between the said parties, did, by the agreement of the said parties, find a verdict for the pursuer, subject to the opinion of the Court of Session upon the following case, viz. That the estates of the said Martinsons and Sommerville were sequestrated in December 1819: That Thomas Duncan, writer in Perth, acted as agent for William Wighton, the interim-factor on said estate, and for the creditors, and as agent in the said sequestration: That James Cameron, late banker in Dunkeld, was appointed trustee under the said sequestration, and intromitted with the funds of the said estates under said trust: That the said James Cameron did propose James Stevenson and John Duff, merchants in Dunkeld, and Hugh M'Dougall, deceased, grocer in Perth, to be his cautioners as trustee on the said sequestrated estates: That the said James Cameron wrote to the said Thomas Duncan on the 5th February 1820, as follows, viz. :— I have your's of yesterday's date, and now return you the bond signed by Mr Stevenson, Mr Duff, and myself. Please send one of your clerks to Mr M'Dougall, and he will sign it also.' The witnesses to the signature in the bond are Peter Connacher, my clerk, and Peter Hall, my apprentice; signed here this date:' That the said James Cameron wrote to the said Thomas Duncan, on the 17th of the said month of February, as follows, viz.—‘I received your's, and now hand the bond, signed this date, before same witnesses as in the former one. Explain to Mr M'Dougall the reason for signing the bond a second time :' That the said bond of caution referred to in the said last-mentioned letter is to the tenor and effect following, viz. (testing clause), these presents,

written upon this sheet of stamped paper, by William Anderson, apprentice to Thomas Duncan, writer in Perth, are subscribed by us as follows, viz.-By us, the said James Cameron, James Stevenson, and John Duff, at Dunkeld, the 17th day of February 1820, before these witnesses, Peter Connacher, clerk, and Peter Hall, apprentice, both to me, the said James Cameron, and by me, the said Hugh M'Dougall, at Perth, the 18th day of the said month of February and year foresaid, before these witnesses, Duncan Robertson, clerk to the said Thomas Duncan, and the said William Anderson. (Signed) James Cameron, James Stevenson, Jn. Duff, Hugh M'Dougall.Peter Hall, witness; Peter Connacher, witness; Dun. Robertson, witness; William Anderson, witness:' That the said bond was presented to the said Hugh M'Dougall by Duncan Robertson, clerk to the said Thomas Duncan, to be executed by him, the said Hugh M'Dougall, as a cautioner for the said James Cameron, as trustee as aforesaid, and that at the time it was so presented to the said Hugh M'Dougall, the names of James Stevenson and John Duff were subscribed thereto, as appearing to have regularly executed the said bord: That the signatures of James Stevenson and John Duff adhibited thereto are genuine; and that the names James Stevenson and John Duff, were not signed in the presence of Peter Connacher and Peter Hall, the instrumentary witnesses thereto, and that James Stevenson and John Duff did not acknowledge their subscriptions to the said Peter Connacher and Peter Hall as instrumentary witnesses to the said bond: That the said Hugh M'Dougall did execute the said bond, and that his execution thereof was regularly attested according to law. The question for the opinion of the Court is, Whether the said Hugh M'Dougall was legally bound as cautioner for the said James Cameron by his subscription to the said bond of caution, or whether he was freed from the said obligation, in consequence of this bond not having been executed according to law by the said James Stevenson and John Duff, the said bond having been presented to the said Hugh M'Dougall, as appearing to be duly executed by the said James Stevenson and John Duff? If the Court is of opinion, on the facts stated, that the said Hugh M'Dougall did not become bound by the said bond as cautioner aforesaid, then judgment to be given for the pursuer; but if the Court is of opinion that the said Hugh M'Dougall did become bound by said bond as cautioner aforesaid, then judgment to be given for the defender." On this special case the Court, 2d July 1830, ordered short cases. The pursuer pleaded-That the bond was not a probative writ: That as his brother signed it under the misrepresentation of the agent, whose constituents were attempting to enforce the bond, these constituents could not avail themselves of his signature: That if the other co-cautioners signed, the pursuer was not bound to ascertain the regularity of their signatures, especially when the creditors themselves superintended the execution of the bond. The defender pleaded-That the pursuer was bound by the bond, in fulfilment of his previous promisethat with its furnishing the trustee alone had any thing to do in the eye of law; and that the pursuer's claim of relief against the trustee and other cautioners remained effectual.

At advising,

The Lord Justice-Clerk had felt some difficulty when the case was formerly before the Court, who were unwilling to decide the case upon any hypothetical view, when the parties were not at one as to the facts. But now that the facts were ascertained there was no difficulty at all. It was proved that Duncan was the agent for the interim-factor-that he was agent in the sequestration-that the bond was prepared in his office, and that he corresponded with Cameron, who was elected trustee, as to sufficient security. The bond was transmitted by the agent in the sequestration to Cameron. There was nothing improper in that. Then, Cameron sent the bond to Duncan, signed by two cautioners; and the question of law was, Whether, in such cir

cumstances, it having been afterwards discovered that, while the signatures were genuine, still the witnesses subscribing had not seen them affixed, or heard them acknowledged, the pursuer was, upon such a ground, liberated? He could not be regarded as relieved,-1st, Because nothing in the special case shewed any obligation on the creditors to see this bond properly subscribed by all the cautioners.-2d, Because nothing establishes that M'Dougall was only to be bound, in the event of the other cautioners being also bound. There was no such limited undertaking on his part.-3d, Looking to the cases of Smith and of Lord Fife, it could not be held that cautioners, who acknowledged their signatures to be genuine, and who were in the knowledge of the bond being handed over by the party who intromits with the funds, and for whose intromissions the bond was granted, were entitled to be heard when they came forward and said, We put our names to this bond, no doubt; but it was done behind the backs of the witnesses to the subscriptions, and we are not bound. No case had been pointed out where such a doctrine had been held, and therefore parties were not entitled so to play fast and loose.

The Lord Chief Commissioner would have given a direction to the same effect.

The Court held

"That the deceased Hugh M'Dougall did become bound by the bond as cautioner for James Cameron; sustain the defences, and assoilzie the defender from the conclusions of the libel, and decern: Find the pursuers, the representatives of the deceased H. and A. M'Dougall, liable in the defender's expenses incurred since the date of the Lord Ordinary's last interlocutor."

Authority for Pursuer.-Earl of Fife v. Duff, December 22, 1825, affirmed May 22, 1826.

Authorities for Defender.-Ersk. III. 3, 64, and Cases there cited. M'Donald v. Stewart, 5th July 1810. Smith v. Bank of Scotland, 25th January 1821.

Second Division.-Lord Ordinary, Medwyn.-Act. Forsyth. -Alt. Walker, Baird, Cockburn.-Daniel Fisher, and Robert Cargill, W.S., Agents.-Mr Rolland, Clerk.

16th November 1830.

No. 5.-JAMES M'GAVIN v. JAMES STEWART. Appeal-House of Lords-Nobile officium—It is ex nobili officio of the Court of Session to delay the application of a judgment of the House of Lords, when deemed by them either contrary to law, or incapable of application.

In this case (already reported, antea Vol. II. p. 536), the House of Lords pronounced the following judgment :

"It is ordered and adjudged, by the Lords Spiritual and Temporal in Parliament assembled, that the interlocutors complained of in the said appeal be, and the same are hereby reversed; and it is further ordered, that the cause be remitted back to the Court of Session in Scotland, with directions to submit the question of facts to a Special Jury, and that it be an instruction to the Jury Court to examine the parties viva voce before them."

At advising the petition of the appellant to apply this judgment,

The Lord President observed, that this was a most extraordinary judgment, and one which the Court would not, in hoc statu, apply. It was subversive of the most established principles in the law of Scotland. The first part of the judgment might be quite correct, where the interlocutors of this Court were reversed, but the instruction to the Jury Court to examine the parties viva voce before them, was a proceeding quite anomalous and unknown to Scots law or practice, and one which he would not adopt until he should communicate with the Lord Chancellor. He had seen Lord Wyndford's speech, in which it was stated, that this cause was fitter for a jury of merchants than for an accountant. But his Lordship must have known, that this Court had no power to summon a jury of merchants, nor to examine the parties viva voce before them.

The Dean of Faculty (Jeffrey), for the appellant, submitted, that he appeared before this Court with power and authority from the Lords Spiritual and Temporal in Parliament assembled, respectfully to require this Court to apply the judgment, without reservation or qualification; and he would deem it derogatory to that High Court of Appeal, and to their mandate, which he held, to enter into any argument or vindication of the merits of that judgment. It might be attended with difficulty and embarrassment; but, in so far as was practicable, it must be enforced.

Lord President then observed, that he would take an early opportunity of submitting it to the consideration of his brethren. (16th November.)

The Lord President said, that he had now consulted with his brethren on this judgment, and received their authority to submit it to the re-consideration of the Lord Chancellor. Since the case was last in the roll, two circumstances had come to his knowledge, which excused the Court of Appeal in the direction they had given,-1st, It occasionally happened in the Court of Equity in England, that where there was a penuria testium, and the Judge conceived that light would be thrown on the case by the deposition of parties, he examined them on oath, to instruct his own conscience.-2d, The House of Lords did not appear to be aware, when they pronounced this judgment, that one of the parties was dead, who, although he night leave representatives, had left none who could represent him in his experience or knowledge of facts, and that it was thus impossible to apply their judgment.

Lord Gillies.-Besides, there was no Jury Court in existence. The Dean of Faculty (Jeffrey), for the petitioner, felt no inclination to embarrass the Court, and therefore now fully acquiesced in the propriety of the measure proposed, as the remit was certainly rather ambiguous. At the same time, his client (the appellant), was entitled to repayment of the expenses found due by this Court to the opposite party, and paid to them on the condition of repayment in case of reversal. To this extent the remit could, and ought to be applied. The Court concurred in allowing this, but, quoad ultra, superseded.

First Division.-Act. Dean of Faculty (Jeffrey), Greenshields. ---Alt. Solicitor-General (Hope).-Charles J. F. Orr, W.S., and W. Patrick, W S., Agents.-Sir W. Scott, Clerk.

16th November 1830.

No. 6.-JOHN REID MILES v. JAMES FINLAY & Co., &c. Process-Petition and Complaint-Delict-Designation-Partnership-Act, 5 Geo. III. c. 49.-A petition and complaint, for recovery of penalties under a penal statute, directed against a company of merchants under their social name, but not against them, or any of them individually, and nominatimHeld to be incompetent.

This was a petition and complaint at the instance of John Reid Miles, setting forth

"That the petitioner has been for some years settled as a teacher at Balfron. The Ballindalloch cotton works are situated in that village, of which the respondents, James Finlay & Co., merchants in Glasgow, are proprietors-the respondent, Matthew Finlayson, manager-and the respondent, Peter Marshall, cashier or clerk. These parties have been in the habit, for some time, of issuing, or causing to be issued, certain unstamped checks or notes for money, of the nature of Banknotes, to be circulated as specie, some of them for seven, and others for five shillings, contrary to law, and to the special enactments of the statute, the 5th of Geo. III. chap 49. These notes are of the following form and tenor:

The petition further set forth-That the petitioner, in the ordinary course of his transactions with the merchants of Balfron, had received no less than 36 of these notes; and on applying to the respondents, by whom they were either issued or caused to be issued, for payment of them, in terms of 5 Geo. III. c. 49, § 8, payment had been refused: That the petitioner had, in consequence, taken measures to have them protested, and payment enforced, in terms of sects. 4 and 6 of the said statute. The petition then proceeded in these terms:

"In the mean time, the object of the present application is to require your Lordships to enforce against the respondents the penalties attached by the statute the 5th of Geo. III. chap. 49, to a violation of its provisions. The preamble of this statute enacts, that from and after the 15th of May 1766, no notes shall be issued in Scotland and circulated as specie, but such as shall be payable on demand in lawful money of Great Britain, and without reserving any power or option of delaying payment thereof, for any time or term whatsoever.' It is then enacted by the 3d section of the statute, that any party who shall issue, or cause to be issued, or circulate, or cause to be circulated, any note or check for money, of the nature of a Bank-note, 'contrary to the directions of this act before mentioned, and to the true meaning and intent thereof, shall, for every such offence, forfeit and pay to the person or persons who shall inform and prosecute for the same, five hundred pounds Sterling, with full costs of suit, to be sued for and recovered by way of complaint before the Court of Session, upon fifteen days notice to the person or persons, bodies politic or corporate, complained of; which complaint the said Court of Session is hereby authorised and required summarily to determine without abiding the course of any roll.' The statute farther declares and enacts, And whereas a practice has of late prevailed, in that part of the united kingdom called Scotland, of issuing and circulating notes, as specie, of the nature of Bank-notes, for small sums less than twenty shillings, lawful money of Great Britain, whereby great inconveniences have arisen, for remedy whereof be it farther enacted, by the authority aforesaid, that from and after the 1st day of June 1764, no note, accepted bill, post bill, ticket, token, or other writing circulated, or which may be circulated as specie, in the manner of a Bank or banker's note, shall be issued, reissued, or given out as specie, by any person or persons, bodies politic or corporate, their servants or agents, in that part of the united kingdom, for any sum or sums of money less than twenty. shillings lawful money of Great Britain, any law, usage, or custom to the contrary notwithstanding; and that the person or persons, bodies politic or corporate, their servants or agents, who shall, after the first day of June, issue, re-issue, or give out any note, accepted bill, post bill, ticket, token, or other writing aforesaid, for any sum less than twenty shillings, shall, for every such offence, forfeit and pay the sum of five hundred pounds Sterling, with full costs of suit, to the person or persons who shall inform or prosecute for the same, to be sued for and recovered by way of summary complaint before the Court of Session, to be proceeded in, in manner before directed.' It is quite indisputable that the respondents have incurred the penalties imposed by these clauses of the statute; in so far as, (1.) The notes or checks issued and circulated by them as specie, and now produced by the petitioner, are not properly payable on demand, but contain a reservation and condition, that the parties by whom they are issued shall not be liable to pay them, unless they are presented at the Ballindalloch works within three months of their respective dates; and, (2.) The notes or checks in question are all for sums of money less than twenty shillings lawful money of Great Britain."

The petition concluded for intimation to James Finlay & Co., merchants in Glasgow, and the individual partners thereof, proprietors of the Ballindalloch cotton works, and to Matthew Finlayson, the manager, and to Peter Marshall, the cashier or clerk of the said

company, in terms of the 3d and 7th sections of 5 Geo. III. chap. 49; and thereafter, upon advising, &c. to find that the said parties have incurred the penalties imposed by the 3d and 7th sections of the said statute, and to decern and ordain them to make payment to the petitioner of the sum of £500 for each of the notes or checks issued, or caused to be issued by them, and herewith produced, &c. with full costs of suit,—all in terms of the aforesaid statute. As a preliminary defence to this complaint it was maintained, that it was incompetently laid-I. In respect that the delict, or charge alleged in the complaint, could not be laid against a company in their social name or capacity, but must be laid against the special member or members, nominatim, who committed the delict: That the acting partner or manager can only have power to bind copartners in the ordinary acts of management, and not in delicts or quasi delicts: That James Finlay, from whom the firm took its name, was dead.II. In respect the complaint is without specification of the offence charged, or the persons by, or against whom it was committed, or the circumstances of time and place, &c. under which it was committed. It does not say whether James Finlay & Company, or Matthew Finlayson, or Peter Marshall, are all and each the delinquents. Being a highly penal complaint, it was incumbent to set forth the time, place, and circumstances of the offence as specifically as in an indictment, as also the way and manner in which it was committed. In answer, it was maintained that the first objection was obviated by the individual partners having been cited, and appearing the leading partner, Kirkman Finlay, by name ; and, at all events, the complainer was still entitled to bring a supplementary complaint against the individual partners; and as to the specification of time, place, &c., it was as particular as required by the statute, or by justice or expediency. Cases were ordered; at advising which (13th November 1830,)

Lord Craigie was inclined to consider the complaint competently laid;-action and diligence could proceed against the members of a Company, although not appearing by name in the firm. At the same time, if the complaint was not competent as against James Finlay & Co., it rather seemed to him that the complaint must also fall in regard to the two others named in the complaint, who were the mere servants or hands of the Company. As to the want of specification, he feared it was as complete as the similar cases of revenue complaints, &c.

Lord Gillies thought the question one of great importance. The objections to the complaint were two-fold-I. As laid against the Company, instead of the specific partner or partners, who committed the offence; and II. As regarded the want of due specification as to time, place, &c. The first objection seemed a sound one. All the members of a Company could never be liable for the debts of each. The present offence was not an act which the Company could commit in their social capacity. If they did it at all, it must have been done by them as individuals. But as to the other two persons named in the complaint, their case was different. The Statute embraced the case of servants, clerks, &c.; and as to them, the want of designation could hardly be pleaded. But then, as to the second objection, in regard to the want of specification of time, place, manner, &c., there was considerable difficulty. A habit of uttering was scarcely a relevant charge, and the only other part of the complaint, containing any thing approaching to an averment of the offence (on the third page of the complaint, and beginning, "It is quite indisputable"), was rather an assumption than a charge. It did not seem to him necessary to libel or prove the

precise day or place of uttering. Revenue cases were less specific than the present complaint in that respect. Lord President thought that more accuracy and specification were necessary. In the analogous cases of charges of usury, the facts and circumstances were set forth with the precision of indictments.

Lord Craigie was moved by the argument stated, and thought the complaint should be dismissed in toto, leaving to the pursuer to bring a more competent one.

(16th November 1830),

Lord Balgray considered the complaint incompetently laid against the Company, and from the first thought the want of specification of time and place a material defect. It might be that these notes were issued in England, in which event the question of jurisdiction must arise, and upon that point the criminal case of Elliot, for uttering forged notes, would apply. This complaint, moreover, did not state that the complainer got the notes from Finlayson or Marshall, but from another.

Lord President was afraid that the terms of the Act were general, and did not require a specification of the persons to whom the notes were first issued. If they were put in circulation, and received while in circulation, that was sufficient. No doubt it must be distinctly averred, that they were originally put into circulation by the respondents, and not stolen or improperly removed from them.

The Court then found as follows:

"They dismiss the petition and complaint, as incompetent against James Finlay & Co.; and before farther answer, allow the other respondents, Matthew Finlayson and Peter Marshall, to give in, within three weeks from this date, a minute, stating the practice and procedure in cases of usury, and other cases of a similar nature, either upon a summons, or upon a petition and complaint, as authorised by particular Statutes."

First Division-Act. Solicitor-General (Hope), Maitland.Alt. Dean of Faculty (Jeffrey), Cockburn, Ivory.----John Cullen, W.S., Complainer's Agent.-Gibson-Craigs, Wardlaw and Dalziel, W.S., Respondents' Agents.-Sir W. Scott, Clerk.

17th November 1830.

No. 7.-ALEXANDER BLACK, Pursuer, v. JOHN MALCOLM, Defender. Mandate-The agent of a pursuer (gone abroad during the dependence) allowed a reasonable time to produce a mandate.

The present was an action of count and reckoning and removing, at the instance of Black, in which the record was closed, and an interlocutor pronounced (13th November 1829), appointing the cause to be enrolled, and the defenders to state, at the next calling, how they meant to prove certain facts. On 26th November 1829, it was stated that the pursuer was then furth of Scotland, upon which the Lord Ordinary appointed a mandate to be produced from him within ten days. On 10th December 1829, a motion being made for absolvitor,

"A. M'Neill stated, that no mandate had been left by the pursuer when he went to America, where his residence was only to be temporary; but he was perfectly ready to sist a mandatory within a reasonable time. He stated that the pursuer had gone to Upper Canada, and he only required such time as is necessary to correspond with a person in that country, and he had no objection that an order should be pronounced, under certification, that if a mandatory is not sisted, the action should be dismissed."

Upon which the Lord Ordinary pronounced this interlocutor :—

"The Lord Ordinary (10th December 1829,) having heard parties' procurators-In respect that no mandate has been lodged within the period specified in the former interlocutor, sustains the defences; assoilzies the defender from the conclusions of the action, and decerns: Einds expenses due; allows an account