Courts,' used in the Crown charter 1780, appear only to apply to the Courts then existing and held in Edinburgh; and that at the dates of the act of Court, 16th May 1765, and of the Crown charter of 1780, the Sheriff Court held in Edinburgh was the only Sheriff Court for the County; finds that the right conferred on the Society of Solicitors-at-law by the act of the Sheriff Court, 16th May 1765, and the Crown charter 1780, must be held restricted to the Sheriff Court then constituted and held in Edinburgh, and cannot be extended to the right of practising in a Court not then in existence, or held in any other place of the county of Edinburgh: Therefore repels the defences founded by the Society of Solicitors-at-law on the act of Court 1765, and the charter 1780 : Finds that the petitioners are not qualified, in terms of the Act of Sederunt, November 1825, to be admitted to practise in a Sheriff Court; and supersedes, for six weeks, consideration of the expediency of the Sheriff, in terms of the last section of the Act of Sederunt, submitting for consideration of the Court of Session any suggestion in favour of the petitioners, in order that the respondents may, in the meantime, have an opportunity of taking such legal steps as they may think necessary for having the legal rights for which they contend established in competent form."-At the same time, the Sheriff issued the following note:-" I am of opinion, that the expressions, ، Commissary, Sheriff, and City Courts of Edinburgh,' only apply to the courts held in Edinburgh. No other construction is applicable to the City Court. It is unresaonable to suppose that the same word, Edinburgh, can have a broader construction, in reference to the Sheriff Court, so as to comprehend the whole county of Edinburgh, and the construction of the word, as applying either to the city or to the county of Edinburgh, is inapplicable to the Court of the Commissaries of Edinburgh, the jurisdiction of which extends over the whole of Scotland. If the Commissaries were to hold a court in Glasgow, pro re nata, could the respondents plead that they are the only procurators entitled to practise before the court thus held in Glasgow? Every legal practitioner must reside, or have chambers, within the bounds of the jurisdiction within which he practises, so that he may easily be made amenable to the orders of the court. On this ground, no person ean be admitted a procurator in the Leith Court, unless he be either residing, or his chambers be within the jurisdiction of that court. With regard to what is stated in page 51, and subsequent pages of the duplies, I have to observe, that any appeals from the interlocutors of Mr Matheson, in Leith district cases, must be entered in the Leith Court, and the process then sent to me; and that my interlocutor will be entered in the books of the Leith Court, and not in the books of the Edinburgh Court; and the whole proceedings, even after appeal, will be carried on by the Leith practitioners." The appellants advocated against this judgment. The Lord Ordinary having ordered cases for the Court, their Lordships, on 4th December 1828, repelled the reasons of advocation, and remitted the cause simpliciter to the Sheriff. The appellants then. brought the case up by appeal to the House of Lords. In support of their appeal they argued,-I. That the charter gave them an exclusive right, saving always the privileges of the Faculty of Advocates, of pleading and practising before the Commissary Courts, the Sheriff Courts, and the city Courts of Edinburgh; and they had enjoyed that privilege long beyond the years of prescription.-II. That the charter must be favourably interpreted for the grantees; and the words employed do not mean that the appellants' exclusive right was to be confined to the Commissary, Sheriff, and city Courts, held within the city of Edinburgh, The respondents maintained-I. That the writs, founded on by the appellants, conferred on them no exclusive privilege to practise in a Court which was not in existence at their date.-II. That the charter, referred to by the appellants, could not be founded on, to the effect of constituting a monopoly in their fa your; and, at all events, that the monopoly could not be extended beyond the words constituting it, which confined it to Courts held within the city of Edinburgh.III. That the appellants had no right whatever, by original grant, possession, or otherwise, to the monopoly or exclusive privileges which they claimed, and under which they sought to prevent the respondents, and all other persons, however well qualified in the opinion of the Sheriff and of the Court of Session, from being admitted practitioners in the Court recently established at Leith. Lord Chancellor.-My Lords, in this cause, if I had entertained any thing like a reasonable doubt of the soundness of the judgment of the Sheriff, and of the Court of Session, I should not have advised your Lordships to decide, without hearing the counsel of the respondents; but, after having given my individual attention to the cause-to the powerful arguments of the appellants' counsel-after having carefully considered the facts which are not disputed, and referred to the several instruments, viz. the regulations of the Commissaries -the Seal of Cause of the City of Edinburgh, of 6th March 1765-the Act of Court of the Sheriff-depute of the county of Edinburgh, of the 16th May 1765-the Royal Charter of 1780, and the Act of Parliament of 7th and 8th Geo. IV.— I entertain no doubt whatever, that the Court have come to a right decision, in repelling the reasons of advocation, and remitting to the Sheriff. Your Lordships, sitting in the highest judicature, will always be anxious to set the salutary example of avoiding, in any particular case, to deal with questions which do not present themselves as necessary for the decision of that case. This judicial measure is the more needful, in proportion to the importance of the questions which are thus unnecessarily offered to the Court; but if there be any question to which this rule ought to be with peculiar strictness applied, it is where matters of great gene ral and constitutional import, such as the rights and prerogatives of the Crown, are involved. If, indeed, the interests of the subjects of the Crown would not be well adjudged without going into the discussion of those high questions, your Lordships must, no doubt, of necessity, go into the inquiry; but it must always be inexpedient to do so, where the necessity does not exist. It is extremely satisfactory to me, that, in affirming the interlocutors complained of, I do not find it necessary here, any more than the learned Judges below deemed it requisite, to raise the point, how far the Crown would, by law, grant the exclusive right in question. To enable the appellants to prevail, they would require to satisfy your Lordships of the truth of both the propositions maintained by them, first, That by the Act of the Commissaries, the Seal of Cause of the Magistrates of Edinburgh (which would, indeed, only give them the right to sue and be sued), the Act of Sederunt of the Sheriff-depute, or the Crown Charter of 1780-that by all of these instruments together, or by long usage, with or without those authorities, there is something, I will not call it monopoly (though the case cited from Viner would plainly authorise the appella. tion), but some kind of exclusive right conferred on them to practise in the Courts to which the instruments refer, and an exclusive right of a large, and indeed peculiar nature; for it is not only, to be applied to Courts existing at that time, which it ought to be, but to new Courts to be created in future times. But, secondly, after the appellants shall have satisfied your Lordships of the legal existence of this exclusive right, they must go a step farther, and shew your Lordships that the right extends to the Court of the Sheriffsubstitute at Leith; unless they can take this step (and it is the one in which your Lordships will find most difficulty in following them), they will in vain have demonstrated the legality of the general claim. My Lords, it is contended on the one side, that the power given under the words of the Charter," Et ulterius nos volumus et declaramus quod nemo jus habebit aut instructus erit causas agere et exercere coram Commissarii vicecomitatis et Civitatis curiis Edinburgi,"-mean an exclusive power to practise before the Commissary Courts, City Courts, and Sheriff Courts of Edinburgh. On the other hand, it is contended, that it gives exclusive power to practise in those Courts at Edinburgh, in Courts at or in Edinburgh; and this translation is borne out by the Act of the Sheriff-depute of Edinburgh in 1765, in which the words are-" before the Sheriff Court of Edinburgh." I am satisfied that the right construction is the Commissary Courts, City Courts, and Sheriff Courts of, or at Edinburgh, and not the Courts of the Commissary, City and Sheriff of Edinburgh; but, even without this, there are sufficient grounds to satisfy my mind, that the power, whether legally or not given by charter, does not extend beyond this limit. A remark has been made at the Bar upon the Latin construction of the genitive case" Edinburgi," and you have been told, that the analogies of classical style are not to govern such instruments as the charter of 1780. No doubt, Your Lordships are not to expect pure latin in composition of this s to be observed, that when "of Edinburgh" is plainly meant to be expressed by the charter, the words "de Edinburgh" are used, not "Edinburgi ;"-but this question is not necessarily involved in the grounds upon which I am about to advise your Lordships to give judgment. Nothing is more clear in law, than that grants from the Crown are to be interpreted altogether differently from private grants, the latter being always taken most favourably to the grantee Crown grants being always interpreted most favourably to the granter; and if any Crown grant is to be taken most unfavourably to the grantee, it is when the King is granting in favour of one individual, or body of individuals, some right or practice, to the exclusion and injury of all others. This would be true, were the disputed words applied to existing rights and existing institutions, but, in the present case, they must be interpreted according to the appellants' arguments, as if they went forward to future time, covered future rights, excluded future generations from their share in future institutions,—and it is upon this ground that I will strictly interpret the present charter. In affirming, it might not be necessary to go into much argument. I shall, however, add a few words, to satisfy your Lordships that this is not an old Court, existing at the time these different instruments were made, but a new Court. The Sheriff takes this view, as appears from the terms of his commission. He first sets forth, that, by the Act of Parliament, he is "specially authorised and required to nominate a fit person to be Sheriff-substitute," but when he comes to vest in the substitute his power over the whole county, he does not do it under the authority of the Act of Parliament-he conveys it as having power by his commission as Sheriff-depute: and at common law, he says-I, by my general power, make him my general substitute, after having created him the Leith substitute, by the power given in the Act of Parliament. It is clear, that, according to his view of his own powers, he granted the commission partly under the Act of Parliament, and partly under his general powers. Then comes the Act of Parliament, the terms of which I consider to be of considerable importance: "And be it further enacted, that within six weeks from and after the passing of this Act, it shall and may be lawful for the Sheriff-depute of the county of Edinburgh, and he is hereby specially autho rised and required to nominate and appoint, and from time to time thereafter, as any vacancy may occur, or pro tempore, if necessary, a fit person qualified according to law, to be the Sheriff-substitute in and for the said town of Leith, and such districts adjoining thereto, as to the said Sheriff-depute shall seem proper, for the due administration of justice within the same; and that no appointment of any such person as Sheriff-substitute shall be valid, or enable any such person to do any act by virtue thereof, unless and until there shall as be annexed a certificate under the hands of the Lord Presi dent of the Court of Session, and the Lord Justice-Clerk, bearing that such person is duly qualified and capable to discharge the duties of the said office, which certificate, after due inquiry made, the Lord President and Lord JusticeClerk are hereby required either to grant or refuse, observing that the act describes the particular persons, and provides that "no appointment of any person as Sheriff-substi tute" shall be valid, unless qualified as there directed-which qualification does not appear to be required of an ordinary Sheriff-depute. The powers being granted, the constitution of the Court is set forth as follows: "And be it further enacted, that the said Sheriff-substitute shall be resident within the said town of Leith, and shall keep or hold such daily or regular Courts therein, in the Court room, to be provided for that purpose, in manner after mentioned, as shall be necessary for the full and due administration of justice, both civil and criminal, as fully as it is competent to any Sheriff-substitute elsewhere in Scotland; and the sentences or judgments of the said Sheriff-substitute, as Sheriff-substithe like review-Admiral, shall be subject to such and as sentences or judgments of any Sheriff-substitute or Depute-Admiral are severally and respectively subject and liable to by the law and practice of Scotland." Where was the reason for these regulations? Money might be wanted, but was the power of regulation wanted? If the Sheriff had the power before, where was the necessity for saying that the substitute should have an appeal from this Court to himself? He had that at common law, according to the argument for the appellants. It is nevertheless enacted, that he shall have jurisdiction and appeal, as in the case of ordinary substitutes. Your Lordships will observe how differently the deputation by the Admiral is mentioned. The expression is, "If the Judge Admiral of Scotland shall grant," it is only if he think fit to exercise his anterior powers that the substitute is to do certain things, when empowered. The Sheriff-depute was to appoint a Substitute to the Court when created. Had the appointment been upon the old common law footing, and in execution of the Sheriff's common law power, it would have been in different terms; it would have been in termis similar to those of the clause applicable to the Admiral deputation," If the Sheriff-depute shall think fit to appoint a substitute"-and as the act requires him to do so. “When the Sheriff shall appoint, be it enacted, that the substitute appointed shall do and enjoy certain things." These are the grounds on which (independent of the construction of the charter, though I think the construction aids my propo sition, and purposely leaving out of view altogether the power of the Crown to grant such charters,) I am led to the construction, that the judgment must be affirmed, upon the ground that the Court is a new one, not in existence at the date of the former grants; on the same construction of the charter of 1780, and on principle, I take leave to advise your Lordships, that the appellants cannot have an exclusive right of practice, and that the several interlocutors of the Court below, repelling the reasons of advocation, were well founded My Lords, I would therefore move your Lordships that the appeal be dismissed, and the interlocutors affirmed, After some conversation with the Bar, in the course of which his Lordship said, he should always be most unwilling to adopt, in the Court of last resort, any new ideas of a case, being satisfied that they were more likely to have been rejected than omitted by the very learned Judges and Counsel in Scotland. His Lordship gave £100 costs. lingua ada ad, op be Ordered accordingly.y of spalivizą svie First Division.-Spottiswoode and Robertson, Appellants' Solicitors. Richardson and Connell, Respondents' Solicitors. Printed by M. ANDERSON, Law-Printer. No. 84.-FRANCIS GRAHAM, Pursuer, v. COLIN ALISON'S REPRESENTATIVES, JOHN ALISON, W.S., & JOHN BROWN, Defenders. Principal and Client - Liability - Expenses - Adjudication Liferent and Fee-A country agent (employed by a creditor to recover a debt) having instructed a town agent to lead an adjudication against the entailed estate of the debtor; and the town agent haring ineptly adjudged the debtor's liferent only, and having then employed another agent to complete a feudal title on the decree of adjudication; and the charter and sasine (which were conform to the decree of adjudication), being found insufficient to convey a feudal title-Held, I. That the town agent first employed was liable in repetition (to the creditor) of the expense of the charter and sasine, but not in consequential damages; and, II. That the country agent and the other town agent were not liable in repetition or damoges. Mr Graham, of Morphie, instructed the defenders, Colin Alison, his country agent, and John Alison, Writer to the Signet, to recover payment of a debt, owing to him by Mr Gray, proprietor of the entailed estate of Carse. The defenders, accordingly, led an adjudication against the estate of Carse, for the purpose of attaching Mr Gray's interest therein; and, in the summons, concluded for adjudication "of the liferent right of the said Charles Gray, or whatever more extensive or valuable right stands vested in his person, or in the person of any trustee, for his use or behoof, so far as not inconsistent with the conditions of the entail of the said estate." When the summons was executed, under the defender, Colin Alison's directions, it was transmitted by him to the other defender, John Alison, to be proceeded with in common form, and decreet was duly pronounced, conform to the conclusions of the summons. John Alison having soon after retired into the country in bad health, committed the charge of his business to the other defender, John Brown, who prepared the requisite deeds for completing a feudal title on the decreet of adjudication, the dispositive clause of the charter of adjudication running in terms conformable to the summons and decreet of adjudication. After this title was made up, the pursuer raised an action of reduction of a decreet in favour of certain parties, for the purpose of preventing the estate of Carse from being burdened with certain other securities. He was met by an objection to his title to insist, in respect his decreet of adjudication, and all that had followed on it, were insufficient to attach the lands of Carse, seeing that it did not adjudge the lands themselves, but merely Mr Gray's liferent right in them: That the adjudication was ineffectual to constitute any real right, and incapable of any higher effect than an assignation to maills and duties, Mr Gray not being a liferenter, but a limited fiar: That the pursuer was thus only a personal creditor, and not entitled to interfere with Mr Gray's heritable creditors. The Lord Ordinary (Newton), 29th January 1828, pronounced this interlocutor: tive clause of the pursuer's charter of adjudication, (which is precisely conform to the decreet of adjudication on which it proceeds,) in so far as it respects the entailed estate of Carse, does not convey the lands themselves; but usum vitalem reditum dicti Caroli Gray et quodcumque alius jus vel interesse magis extensiorum vel pretiosum vestitum stans in ejus persona vel in persona alicujus amici fiduciam ut fidei commissarii in fiducia pro ejus usu et beneficio quantum non repugnan_conditionibus tallice, &c. : Finds that the conveyance of Mr Gray's liferent was inept, he being no liferenter, but fiar of the lands, though a limited fiar; and that the addition of the indefinite, more extensive, and valuable rights which he might happen to be vested with, either in his own person, or in that of a trustee for his behoof, is not such as could constitute a proper feudal estate in the pursuer, or to warrant his infeftment in the lands: Finds that the precept which authorises, in general terms, Sasinam totarum et integrarum prefat. terrarum decimarum et secundam formam et tenorem antedict cartæ nostræ,' although a sufficient warrant for infeftment in the other lands and subjects directly conveyed, was not such in regard to the entailed estate, as to which all that is granted is a right of liferent which did not exist, or some more extensive right, the nature of which is left altogether undefined: Therefore, sustains the objections to the pursuer's title, that he has no valid infeftment, or feudal estate in the tailzied lands; assoilzies the defenders, and decerns; but finds no expenses due.” The Court having adhered to this interlocutor (14th November 1828), Mr Graham brought the present action of damages against the defenders, as having, by the inept manner in which they prepared his title, occasioned his postponement to the heritable creditors of Mr Gray, and involved him in ineffectual litigation upon the faith of these titles. The defenders stated, various grounds of defence; but the most important are contained in the following note, issued by the Lord Ordinary, with this interlocutor (11th June 1830), "The Lord Ordinary having considered the closed record, and heard counsel for the parties, Finds the defenders liable to, the pursuer in repetition of the expense of expeding the charter and sasine on the decreet of adjudication mentioned in the pleadings, in so far as it has been paid to them, or to Mr Colin Alison, for behoof of them, or any of them; assoilzies them from all the other conclusions of the action; finds no expenses due, and decerns.-Note.-If the law laid down in Lord Newton's interlocutor of the 29th of January 1828, had been perfectly settled previous to that interlocutor, there might, perhaps, have been some ground for the claim of damages raised by the pursuer. But that is not the case, as appears from the judgment of the First Division, where his Lordship's interlocutor was reviewed, and still more from the deliberations of the Court on that occasion. It seems to have been held then, that the adjudication itself, independently of the charter and infeftment which followed upon it, was a sufficient title to insist in the reduction brought by the pursuer, in which view the charter and infeftment, at the worst, were only superfluous. But farther, till that time, the law, with regard to a feudal title of the nature in question, was by no means clear. It is certain that a liferent, meaning thereby a usufruct, for example, the courtesy, terce, or a liferent, granted in liferent use allenarly, cannot pass to the effect of being feudalized in the person of the disponee or adjudger. In law language, inhæret ossibus of the liferenter. But it is equally certain, that the right of an heir in possession under a strict entail, (which, though often termed a liferent, is not a usufruct,) may be adjudged to that effect; and the question is, what is the proper mode of doing so? Previous to the decision in Sir William Nairne's case in 1810, the practice generally, if not universally followed, was to adjudge, not the lands themselves, but the interest of the heir in the lands, exactly as the defenders did in the present case. This appears from the form prescribed in the Juridical Styles, and the fact is well known to No. VII. every person who practised at that period. Lawyers seem to have been apprehensive, that if an adjudication of the lands themselves were made real, though limited in endurance and extent, in the same manner as the heir's fee, it would infer an irritancy, and consequently, defeat the whole proceedings. In Sir William Nairne's case, the point raised was, not whether the disposition granted by the heir of entail, and followed by infeftment, was an irritancy, but whether, under the limitations introduced, it was or was not a real right in competition with personal creditors? Since that case, indeed, there has been an understanding, that the fee of an entailed estate may be disponed or adjudged, and the right of the disponce or adjudger feudal. ized without risk, the restrictions of the entail being inserted in his investiture. But it is thought that this has not yet been the subject of express decision; nor, until the judgment of the Court in 1828, has it been found that the heir's right, which is not of the nature of the usufruct, might not be adjudged, and a feudal title so completed, according to the old practice, without including the lands themselves in the adjudication. For, accord. ing to feudal principles, there is no right connected with land, except a usufruct, that may not be made real by infeftment, and in that form conveyed to a third party. Taking into view, therefore, the circumstances of this case, namely, the danger of an irritancy on the one hand, and the admitted practice on the other, it can hardly be maintained that Mr John Alison was to blame in following the course he did, in a matter in apicibus juris; but if he was, there was no such culpa lata, or gross professional ignorance, as ought to subject him in damages to the pursuer." The pursuer and defenders having reclaimed against this interlocutor, Lord Gillies assented to the principles laid down in the Lord Ordinary's note, but was inclined to discriminate betwixt the defenders. The duty to be performed was a difficult one. The agent was placed between the danger of incurring the irritancy under the Act 1685, and the risk of committing the error here founded on. If the claim of the pursuer was recognised in its full extent, the consequence might be sufficiently serious; for in every one of the cases where entails had been found defective, directions had no doubt been given by the entailers to the agents to make them complete; and if the substitutes in these entails could come against the agents and their representatives who framed them, there would be many liable at this moment to the most sweeping and ruinous claims. It was impossible to hold Mr Brown liable for the defective signature and charter. He could take out no other charter but one, in terms of the signature and decree of adjudication. Lord Craigie differed, and considered the adjudication right. The error was in the signature and charter. Neither Alison (the father) nor Brown could be liable. The error was committed by Alison (the son). Lord President concurred, but thought too much stress had been laid on Lord Dunsinnan's ease. There was no rule established by that case as to the form of the adjudication. As to Alison, senior, it would be monstrous to hold every country agent liable for the errors of a town agent. The Court (4th December 1830,) pronounced the following judgments : On the RECLAIMING NOTE for JOHN ALISON. "Find the defender, John Alison, liable in repetition of the expense of the charter and sasine, mentioned in the pleadings; Refuse this note, so far as regards the said John Alison, and adhere to the interlocutor reclaimed against; In so far as relates to the other complainers, Mrs Jane Alison or Laing, and the other defenders, children of the deceased Colin Alison, alter the interlocutor of the Lord Ordinary, complained of; assoilzie these defenders from the conclusions of the summons, and decern: Find no expenses due." On the NOTE for FRANCIS GRAHAM. "Find that the defender, John Alison, is liable in repetition of the expense of the charter and sasine, mentioned in the pleadings; quoad ultra adhere: Find no expenses duc." On the NOTE for JOHN BROWN. "Alter the interlocutor reclaimed against; assoilzie the defender, John Brown, from the conclusions of the summons, and decern: Find no expenses due to either party." First Division.-Lord Ordinary, Corehouse.-Act. Buchanan. Alt. Walker, Baird, Small Keir.-J. J. Fraser, W. S., and John Brown, W. S., Agents.-Mr Hamilton, Clerk. 8th December 1830. No. 85.-JAMES CAMERON, Suspender, v. W. FRASER & Process-Bill-Suspension-Forgery-Comparatio Literarum tion. any This was a suspension of a charge, for payment of a bill for £45, 15s., dated 30th April 1830, bearing to have been accepted by John M'Donald, distiller in Keith, and to have been drawn by the suspender, and indorsed by him to William Fraser & Company. The grounds of suspension were, That the bill was a forgery: That the suspender had never had dealings with the chargers; and that the acceptor (M'Donald) was now in jail on another charge of forgery. In evidence of the forgery, the suspender produced a specimen of his hand-writing and signature, written on 30th September 1830. The suspender offered caution. The Lord Ordinary (20th November 1830,) pronounced this interlocutor and note: "The Lord Ordinary having considered this bill, with the answers and productions, and heard parties' procurators thereon, refuses the bill, finds expenses due, and remits the account, when lodged, to the auditor to be taxed: But prohibits the Clerk from issuing the certificate of refusal for ten days from this date, in order that the complainer may have an opportunity of applying to the Court.-Note.-The suspender avers forgery; and as caution is found, the Lord Ordinary at first thought it would be his duty to pass the bill, though his impression is strong that the subscriptions are genuine. But, on reflection, he thinks that it would be unjust to involve the respondent in the proceedings necessarily following on a passed bill, without some better and more probable grounds laid for the allegation of forgery. The writing produced by the complainer as his genuine writing, is a paper made for the purpose of comparison, not a previously existing writ; and yet, so far as the Lord Ordinary can judge, after carefully examining all the subscriptions with strong glasses, the subscriptions appear to him (allowing for difference of ink) to be the work of the same hand. The complainer offers no other proof in his bill, but at the Bar, he proposed a remit to engravers. This has been frequently done by the Court before passing a bill. But in the present case, besides a doubt he feels as to the powers of a Lord Ordinary, he thinks that the writ exhibited by the complainer is not such a writing as could fairly be sent to engravers, except of consent of the respondent. He, therefore, saw no option but to pass or refuse the bill; and the respondent insisting for a refusal, he has found himself bound to decide, according to the opinion he entertains of the grounds shewn, in support of the reason of suspension; but as the Court may see cause to deal otherwise with the cause, he has allowed ten days for reclaiming. The objection of form stated in the bill was not insisted in." The suspender having reclaimed, produced, in farther evidence of the forgery, documents written by him previous to the date of the bill alleged to have been forged. Some of the Judges, on comparing the documents, seemed inclined to acquiesce in the Lord Ordinary's interlocutor. The Lord President observed, that as undoubted caution had been found, the chargers would be no losers by the bill being passed. The only question here was, if there was sufficient prima facie evidence of forgery to induce the Court to take the usual method of remitting to engravers? In those cases where the Court had remitted, and engravers had reported that the document was a forgery, the Court always passed the bill without caution, but he could not perceive that prima facie evidence here. The chargers then consented to the bill being passed on caution, which the Court (4th December 1830,) accordingly did, of consent. Hamilton, S. and D. Vol. IV. p. 102. Hart, S. and D. Vol. IV. p. 404. First Division.-Lord Ordinary, Moncreiff.-Act. Thomson. -Alt. Stoddart.-Carnegy and Shepherd, W.S., and Macmillan and Grant, W. S., Agents.-Mr Hamilton, Clerk. 8th December 1830. No. 86. HOPKIRK, Petitioner. Process-Reclaiming Note-Record-Appendix-Held incom petent to receive a Reclaiming Note without the Record appended, even of consent. In this case, the Lord Ordinary had issued an interlocutor on a branch of the cause. The unsuccessful party reclaimed, without printing any appendix, on the mutual understanding, that when the Lord Ordinary should decide the other branches, a reclaiming note, with the proper appendix, should be presented. Accordingly, the reclaimer lodged a note, with consent of the opposite party, praying the Court to supersede consideration of his reclaiming note. But the Court held that they could not write upon it. Second Division.—Lord Ordinary, Medwyn.—For Reclaimer, Forsyth.-For Respondent, L'Amy. 8th December 1830. No. 87.-DAVID KINNIBURGH, Advocator, v. ADAM DICKSON, Respondent. Deposit-Held, that where a subject possessed by one individual is deposited by another with a third, for behoof of the first, the person in whose hands it is deposited is bound to restore it when demanded, to the original possessor, where no legal ground of retention exists, and cannot effectually plead that he has given the property, on some ground of expediency, to another person, the employer of both. master. The respondent went, in the end of August 1826, on board the Canal boat, between Lock 16 and PortHopetoun, of which the advocator was Being intoxicated, he fell into the Canal, was taken out, carried into Mrs Brookman's Inn, stripped, and put to bed. Mrs Brookman took out of his pocket, in drying his clothes, a pocket-book, containing £13, some silver, and an account of expenditure by him for Strachan, a general-agent at Port-Hopetoun, in whose employment both parties were. She delivered the whole to the advocator for the respondent. The former made an application to the Sheriff for their delivery. In answer, the advocator admitted, that he had received the articles, but stated that he had received them for the purpose of lodging them with Strachan, and that he had, (as he was, for his own exoneration, bound to do,) given them all up to the latter, who thereafter had the sole charge of them, and to whom the money truly belonged. The advocator underwent a judicial examination. On the 15th of January 1827, the Sheriff-substitute ordained him to give up the articles within eight days, reserving his relief, as advised. And on the 12th of February, he found him liable in damages, to be condescended on, for not obtempering. Thereafter, on the 29th of August 1827, the Sheriff-substitute, "In respect that the defender denies his obligation to restore the sum of £13, 14. 5. to the pursuer, and states, that he intends to advocate the cause upon the merits, refuses the desire of the said minute, No. 10, in so far as it craves interim decree for payment of that sum, with interest; and in so far as regards the sum of 1s. 6d. claimed as the value of the pocket-book, ordains the defender, within fourteen days, to produce it in process, in order that the value of it may be proved, and for that purpose grants diligence at the defender's instance against all persons in whose possession it may be believed to be, and commission to the clerk of Court, or Mr Mack, or Mr Wilson, solicitors-at-law, to take the oaths of these persons, and to receive the exhibit, under certification that if the defender shall fail to produce the pocket-book, the pursuer will be allowed to give his oath in litem, to the extent of 1s. 6d. as the value of itone word delete." And on the 17th of March 1828, "The Sheriff-substitute, having considered the pursuer's oath, and whole process, Finds the defender liable to the pursuer in the sum of £13, 14. 5., being the amount of cash in the pocketbook, with interest thereof, from 31st August 1826, and until paid: Finds him also liable to the pursuer in the sum of 1s. 6d. as the value of the pocket-book: Decerns against the defender for payment to the pursuer of the said sums and interest," &c. Kinniburgh advocated, repeating his former pleas. The respondent answered, That he was bound by the deposit to restore on demand: That he had not instructed a preferable claim; and that he was liable in damages, direct and consequential. "The Lord Ordinary (19th May 1830,) having heard parties' procurators, Finds that the case appears to rest upon the allegations and admissions of the parties, no proof being offered on either side: Finds, that it appears on these allegations and admissions, that the advocator, at the time when he took the pocket-book and money in question, did so with intent to deliver the same to Mr Strachan, which it was legal for him to do in the circumstances, and finds that he did deliver the same accordingly Finds that, in these circumstances, it is not competent for the respondent, instead of demanding the said articles from Mr Strachan, who, so far as appears, would not have refused to deliver them, if he had been asked to do so by the respondent, to come against the advocator; therefore advocates the cause, assoilzies the advocator, and decerns; Finds the advocator entitled to expenses, and remits the account thereof, when lodged, to the auditor of the Court to tax the same, and to report." : The respondent reclaimed, pleading,-That he had satisfactorily instructed what he had right to claim: That there was no evidence of the articles having been ever delivered to Strachan; and that although there were, the advocator was bound to restore, and recover from Strachan as he might. Lord Cringletie drew quite an opposite conclusion from the Lord Ordinary. There was no reason to believe that Kinniburgh had got the articles to deliver them to Strachan. He was liable as having got them. He had no right to give them to Strachan, and would be liable were Strachan bankrupt. The allegation of such delivery was hardly relevant, and was not proved. Lord Glenlee held it contrary to the deposit to give the articles to Strachan; and the advocator was bound to bring him forward. The Lord Justice-Clerk thought that the interlocutor must be altered. The transaction was almost like a spulzie. There was no evidence that the advocator wished Strachan to be sisted. The Court altered, and remitted simpliciter to the Sheriff. |