20th November 1832. No. 36.-ROBERT DOWNIE, Suspender, v. JAMES RAE, Respondent.

Process-Competency-Suspension-Competent and Omitted —A party having appeared as nominal raiser in a multiplepoinding, and lodged a condescendence, and stated his willingness to pay the fund in medio.-Held, I. That a plea of compensation, omitted in the multiplepoinding, could not be pleaded in a suspension.-II. That, in the circumstances, the decree in the multiplepoinding was not in absence.-III. That it was too late to urge the plea of retention.

In 1825, the suspender purchased from David Storm, builder in Edinburgh, certain unfinished tenements in Downie Place. Storm agreed to complete the houses within a specified time, and became indebted for plumber-work to Brodie and Hume, in the sum of £123, 16. 4. At this time, Storm was indebted to Messrs Dawson and Co., Port Hopeton, in £160 and upwards, for which he gave them a draft on Mr Charles, the suspender's factor, who agreed to honour it, as all the purchase-money had not then been paid. Before payment, Storm was sequestrated in May 1826, and Messrs Brodie and Hume objected to the suspender, or his factor, honouring the draft. Messrs Dawson and Company, having failed in an extrajudicial negotiation with Brodie and Hume, then raised a multiplepoinding, in name of the suspender, to try with Brodie and Hume the question of right to the said £123. The summons was duly served against the suspender, and stated, that the suspender was willing to make once and single payment of the said sum to the party who had best right thereto. No objections were stated to the competency of the summons; and on 6th December 1827, eighteen months after Storm's bankruptcy, the suspender lodged a condescendence of the fund in medio, which he stated to be the said £123, 16.4., and declared his readiness to pay the same. In Storm's sequestration, the Commercial Bank lodged, on the 21st October, a claim for £2695, being the balance due under a cash-credit, for which the suspender was one of the cautioners. The claim of preference between Dawson and Company and Brodie and Hume was then settled by a reference to Thomas Walker Baird, advocate, who preferred Dawson and Company to the said sum of £123, 16. 4., and the process of multiplepoinding, which had in the meantime fallen asleep, was wakened, and decree pronounced in terms of the award. In the meantime, Messrs Dawson and Company had made over the claim to the respondent, who extracted the decreet, and charged Mr Downie-who suspended, and pleaded-I. That quoad him the decree in the multiplepoinding was in absence: That he or his agent had got no notice of the matter, and were no parties to the judicial reference.-II. That at the time the multiplepoinding was raised, he was Storm's creditor to a large amount, from his cautionary obligations for him to the Banks,-a fact of which, however, he was then ignorant: That he was entitled to plead compensation of the £123 in partial liquidation of his claim: That it was not too late to plead the right of retention after decreet. Answered-I. The suspender appeared in the multiplepoinding, and pleaded to it, by lodging a condescendence, and stating his readiness to pay the fund in medio. Due no

tice of all the proceedings were given to the suspender's agent, who took an active part in them.—II. Mere ignorance of a fact which ought to have been within the suspender's knowledge, is not a good ground of suspension. Relief, on the plea of competent and omitted, can only be pleaded in a reduction. Lord Medwyn, on 19th October 1832, pronounced this interlocutor:

"Having considered this bill, with the answers thereto, and productions, refuses the bill; finds expenses due, &c.—Note.The decree in this case was not a decree in absence, for the suspender had made appearance in the process. He states that he was ignorant that he was under any obligation for Storm to the Commercial Bank, when he lodged the condescendence of the fund, and made no claim of retention, but admitted that the fund in medio was due by him. There can be little doubt that he was ignorant of this obligation, but he ought not to have been so, and cannot now get the better of his own judicial statements and actings, because they would have been different if he had more carefully inquired into the state of his transactions with and for Storm. Besides, it is stated that, about 18 months ago, the suspender was informed of the claim which the Bank had upon him, under his bonds for Storm; and after this the award is given in, the process awakened of consent, decree obtained and extracted, and much correspondence about payment of it, before the present ground of suspension is stated. Whatever might have been done, if the ground of retention had been stated immediately when the process was awakened, it cannot be listened to now in a suspension. Compensation, even, is not pleadable in a suspension."-Ersk. III. 4. sec. 19.

The suspender having presented a second suspension, which Lord Corehouse refused on 3d November 1832, he reclaimed,-and at advising,

Lord Balgray said, that he was clearly of opinion that the interlocutors were right. The suspender allowed all the proceedings in the multiplepoinding to go on, without challenge, and it was now too late.

The Court unanimously adhered.

Suspenders' Authorities.-Bell's Com. II. p. 133. Barclay v. Clerk, January 1683; Mor. 2641. M'Laren v. Bisset, 18th February 1736; Mor. 2646. Corbet v. Hamilton, 21st March 1707; Mor. 2642. A. v. B., 25th February 1747; Mor. 2648, and 16th January 1747; Brown's Sup. Vol. V. p. 747. Respondents' Authorities.-1672. c. 16. sec. 19. Ersk. IV. 3, 3. Dundas, 9th March 1810. Magistrates of Dumbarton, 18th November 1813. Graham, 29th May 1821.

First Division.-Lords Ordinary, Medwyn and Corehouse.Act. Skene and Christison.-Alt. Keay and G. G. Bell.—William Renny, W. S., and Alexander Johnstone, W. S., Agents. -Sir R. Dundas, Clerk.-J. W. H.]

20th November 1832.

No. 37. THOMAS BOOKLESS, Suspender, v. JOSEPH NORMAND, Respondent.

Apprentice-Master- - Indenture - Incarceration

- Questions raised, though not decided,-I. Is it legal for a master, where there is a regular indenture, with cautioners, penalty, and a clause of registration, to proceed against his apprentice by summary ap plication to the Sheriff for imprisonment, in order to compel him to return to, continue in, and implement the terms of the indenture?-II. Is it legal to ordain him, in the warrant of imprisonment, to find higher caution than what is stipulated in the indenture?

On the 12th November 1827, the suspender was bound an apprentice with the respondent, a wright in Edinburgh. The indenture contained the usual clauses and mutual obligations on the parties, under the penalty of £100 Scots; and provided, inter alia, that the suspender

"shall not absent himself from his said service, without leave obtained from his master; and that, if he fails in punctual attendance, he shall make two days' service, after the expiration of the term of his apprenticeship, in the same station in which he serves while it lasts, for each day's absence during that time."

The indenture contained a clause of registration in the usual form, consenting to letters of horning, &c. on six days' charge. On 13th October 1832, the respondent presented a summary application to the Sheriff, stating the terms of the indenture, and setting forth, That the suspender had for some time past been irregular in his attendance, and in particular, had absconded for three days, and was then in hiding. The prayer of the application was in these terms:

"May it therefore please your Lordship to grant warrant and authority to officers of Court to search for, seize, take, and apprehend the person of the foresaid Thomas Bookless, and to bring him before your Lordship for examination; thereafter, on his admitting the facts before set forth, or their being proved, to grant warrant to officers of Court, to incarcerate and imprison the person of the said Thomas Bookless within the tolbooth of Edinburgh, or other sure warding place, therein to remain under sure ward, firmance, and captivity, on his own charges and expenses, aye and until he find good and undoubted caution, acted in your Lordship's Court-books, to the amount of thirty pounds Sterling, to return to the service of the petitioner, and to continue therein, in terms of the foresaid articles of indenture, until the expiry of the time stipulated therein: Lastly, To find the said Thomas Bookless liable in the expense of this application, warrants, and haill subsequent procedure; and to decern for said expenses, in common form."

The suspender having been apprehended on 17th October, and taken before the Sheriff, admitted his guilt, and expressed his readiness to return to his service. On the same day, the Sheriff granted warrant for his incarceration, in terms of the prayer of the application. Bookless suspended; and answers having been lodged, Lord Fullerton ordered them, and the bill, to be printed, in order to report the case to the First Division. The suspender pleaded-I. It is incompetent for the respondent to travel out of the indenture. Caution to the amount of £100 Scots is therein found, and the respondent has no right to demand more; neither was the Sheriff entitled to ordain him to find caution for £30 Sterling, thus laying him under additional security, and making a totally new contract for the parties, never contemplated in the indenture. If the respondent had charged the suspender to return, and he had refused, he might have punished him with imprisonment, by proceeding under the Statute, 4th Geo. IV. c. 34, sec. 1.-II. The warrant of incarceration, as expressed, might, at the instance of an oppressive and vindictive master, operate a perpetual imprisonment, in cases where the suspender was unable to find caution to return to and continue in his service, and perform all the provisions in his indenture. Answered-I. The practice, confirmed by decided cases, has all along been, that Sheriffs are entitled to grant summary warrants of imprisonment against servants and apprentices, in order to compel them to return to the service which they had deserted. Recurrence to the cautioners for the penalty and damages is nothing. The respondent wishes service. He does not wish to punish the suspender criminally under the Statute 4 Geo. IV.-II. The caution for £30 is not too high. The master has had the labour of teaching

the apprentice, who is now commencing his last year, and his services during it would amount to upwards of double £30. When the case came on for advising,

Lord Craigie said he was satisfied that the Sheriff's interlocutor was correct. The master was bound to do all he could to protect the cautioners, otherwise, who would be security for all the damage that might be done by an apprentice to his master. If the master was not entitled to do so, and had followed any other course than the present, the cautioners might have been involved in expenses, and no good done.

Lord Balgray had considerable practice in such matters when he was a Sheriff, and had been exceedingly cautious to evade damages, whether on the side of the master or the servant. The master was bound to use means to prevent damages against the cautioners. If he knew the apprentice was going to run away, he was bound to lay hold of him and bring him back to his service. Were the terms of the warrant illegal? He thought not. They were only to compel performance of an act within the apprentice's power. He had the means of doing it. There was no hardship in this. The words of the petition may seem broad, but on a fair construction they were not too broad. He was sure the practice throughout Scotland was the same as what had been pursued in this case. The only difficulty he had, was on the extent of the caution demanded. It was exhorbitant. £10 was enough.

Lord Gillies remembered the case of Reid, and was then of opinion, that a criminal process could not be used to compel fulfilment of a civil contract. It was now settled law, that a master could force his servant to perform his contract by imprisonment. The present case originated, not between master and servant, but between master and apprentice, on a contract containing a clause of registration, involving a decree in it. The master should have proceeded on the indenture. If such be the practice of Sheriffs, as stated by Lord Balgray, it is not universal-and it should be altered. Where there are mutual stipulations, cautioners, and the means of giving a charge in a contract reduced to writing, he held any other mode of proceeding than upon it, illegal and incompetent. What more does the master wish than fulfilment of the contract? If he does wish more, it is illegal. If he wants no more, let him register the indenture, and proceed on it. The case was different from that between a master and a servant, where there was no indenture. The master might have proceeded criminally against the suspender, under the 4th Geo. IV. Here the summary procedure adopted was incompetent. Suppose a party bound apprentice to a writer to the Signet, or an apothecary, and that he succeeds to £10,000 a-year, is he to be taken by the neck, and, nolens volens, compelled to serve, when he says he is willing to pay all the penalty? He thought not. Is the Court to alter the bargain, which the master is endeavouring to force implement of, and make the penalty-the caution higher? sibi imputet, if be has not made the indenture better than it is. He thought the bill should be passed, and that there should be a consultation with the other Judges, in order that a general rule might be laid down.

Lord President.-What would you do in other contracts?—say in the case of a lease. Surely proceed on the lease. He did not think the penalty was all that could be recovered under the indenture, it was broader than that. He recollected the case of Reid, which, he thought, was well decided. In that case, there was neither cautioner nor penalty; there was only a verbal agreement,-so that there was no other way of proceeding than by imprisonment. The master should have charged the apprentice on the indenture. The penalty was mutual. He should have left the cautioners to demand relief from the apprentice. How could Bookless, the apprentice, have proceeded against the master, on the allegation that he was not teaching him his trade? Could he have put the master in jail? He must have proceeded on the indenture.

The Court, therefore, of consent of parties, passed the bill, and liberated the suspender.

Suspender's Authorities.—Wright v. M'Gregor, 9th February 1826; S. and D. Stewart v. Stewart, 21st June 1832; Scot. Jur. and S. and D. Reid v. Raeburn, 4th June 1824,

Gentle v. M'Lellan, 9th July 1825; S. and D. 4 Geo. IV. c. 34.

Respondent's Authorities ut supra. Campbell v. Anderson, 15th February 1826; S. and D.

First Division.-Lord Ordinary, Fullerton.-Act. Bell.Alt. Cuninghame.-T. M. Moffat, and M. & J. Lothian, Solicitors, Agents.-Bill-Chamber Clerk.~[J. W. H.]

20th November 1832.

No. 38. JOHN BOYD, Suspender, v. GEORGE CUNINGHAM, Charger.

Process-Bill of Suspension — Expenses — Circumstances in which the Provost of a burgh was made personally liable in the expenses incurred by the Town-clerk, in recovering the burgh records, which had been improperly withdrawn from his custody. On the 11th June 1830, the charger presented a petition and complaint against the suspender, who was then Provost of the burgh of Linlithgow, and all the other members of the Town Council, setting forth,— That he was Town-clerk of said burgh, and that in consequence of the ensuing election for a member of Parliament, repeated applications were made to him, as the legal custodier of the burgh records, for extracts of certain minutes, which he was unable to furnish, in respect that the suspender, and others, had taken the same out of his custody, kept the keys of the press in which they were deposited, and refused to give him access to them: That, for not furnishing said extracts, petitions and complaints were instituted against him by Bailie Spence, &c. for malversation. The prayer of the charger's petition, inter alia, concluded:

"And to ordain the said John Boyd, and all the other persons above complained on, to deliver over to the petitioner the records of the burgh, in order that he may be enabled to furnish extracts of such minutes as may be required by persons having right to demand them: And further, to find the said John Boyd, and all the other persons above complained on, liable to the petitioner in the expenses of this petition, as well as all other expense and damage to which he may be put in consequence of their illegal conduct."

When answers were given in to this petition, a meeting of the Council was called, and 14 members thereof, being an absolute majority, lodged in process a minute, disclaiming the answers, and stating that they were unauthorised by the Council. On the 6th July 1830, (antea, Vol. II. p. 520,) the Court pronounced this interlocutor:

"The Lords having considered this petition and complaint at the instance of George Cuningham, with the answers thereto, and other proceedings, and heard counsel for the parties, Sustain the complaint: Find that the complainer, as Clerk of the royal burgh of Linlithgow, is the legal and proper custodier of the records of the Council of the burgh; that he is entitled to demand and take possession of those records, and to give forth extracts thereof according to law: Ordain the respondents, in whose possession or custody the records may now be, to deliver up the same to the complainer, and decern: Find him entitled to his expenses in this process, of which allow an account to be given in, and taxed and reported on by the auditor: Further, find him entitled to be relieved by the respondents in this complaint, of the expenses to which he has been subjected in the connected petition and complaint at the instance of Robert Spence, as well as of the expenses duly incurred by him in that petition and complaint, the amount of which, as taxed by the auditor, to whom power for that purpose is hereby given, shall form an item in the account of his expenses for which decree is to be given in this process, reserving to the respondents inter se, all questions as

to the effect of a disclamation by certain of their number in relieving them from the expenses thus found due to the complainer."

The account was taxed at £83, 6. 5., for payment of which, together with £2, 15. 1., as dues of extract, Cuningham charged Boyd, who suspended, and pleaded-I. That the petition and complaint, at the instance of the Town-clerk, was not directed against the suspender personally, but against him as Provost of the burgh, and also against the other members of the Council. It would have required a special finding in the interlocutor of the Court to have rendered the suspender personally liable.-II. A great proportion of the expenses charged for, was incurred in the process at the instance of Spence, &c., with which the suspender had no connection. Answered-I. The suspension is ex facie incompetent, being a suspension of a decree of the Court of Session in foro contentioso. -II. Appearance was made in the petition and complaint by the suspender, in name of the Magistrates and Council, without authority from the corporation, which disclaimed all appearance in the matter. In terms of the interlocutor, the suspender is jointly and severally liable in the expenses to the charger.-Lord Craigie refused the bill, with expenses; and the suspender having reclaimed, the Court adhered.

First Division.-Lord Ordinary, Craigie.-Act. Adam Anderson.-Alt. .-Horne & Rose, W. S., and Cuningham & Bell, W.S., Agents.-Sir Robert Dundas, Clerk.-J. W. H.]

20th November 1832.

No. 39.-DAVID CHALMERS, Suspender, v. PATRICK TAYLOR, Charger.

Bill-Diligence-Assignation-The suspender having put his name to an accommodation-bill which was dishonoured; and the charger having drawn another bill for the same sum, in order to pay the first bill, which the suspender indorsed and discounted for that purpose; and the second bill having also been dishonoured, and retired by the charger, who received assignation to the first bill, and diligence thereon-Held, I. That the charger was entitled to take an assignation to the first bill, and diligence thereon. -II. That the suspender was not relieved from his obligation to repay the charger.-III. That it was jus tertii to the suspender to plead that the charger had not given up said bill, in his list of debts in his sequestration.

In March 1815, the suspender, and others, put their names to a bill for £125, at three months, for the accommodation of George Tod, merchant in Auchtermuchty. The bill was drawn by Tod, and accepted by his father-in-law, John Clunie. After having gone through several hands by indorsation, it was discounted by Archibald Walker, agent for the Perth Bank, and being dishonoured, he raised diligence against the parties whose names appeared on it. Tod being at this time abroad, another bill for the same amount was drawn by the charger, Taylor, in July 1815, and accepted by the said John Clunie, and indorsed to the suspender, who discounted it with said Archibald Walker, and retired the first bill. This second bill, when it fell due, was also dishonoured, and the charger was obliged to pay it: upon which he received an assignation from the bank agent to the first bill, and the diligence thereon. In virtue of this assignation, the charger, in 1829, raised letters of horning in his own name, and charged Chalmers for

"Having resumed consideration of the debate, and advised the process, Finds it admitted by the suspender, that he became party to the bill, dated 14th March 1815, for behoof of the drawer, Tod, and that the charger's name was not on said bill : Finds, that this bill being dishonoured, diligence was raised upon it, and a charge given, and letters of caption raised: Finds it averred by the charger, but not admitted by the suspender, that the suspender, and Clunie the acceptor, were in the hands of a messenger, in virtue of this diligence; but finds it admitted, that another bill for the same sum, dated 25th July 1815, was granted by the parties to the former bill, with the exception of Tod, who was then in London, with the addition of the charger, for the purpose of retiring the first bill; and the proceeds of the said bill were applied accordingly: Finds it averred by the suspender, that the charger was made drawer of this bill, and the suspender an indorser, for the express purpose of relieving the latter from the previous bill,' and to the effect that the suspender might stand as creditor in that bill, with relation to him ;' but finds this expressly denied, and no reason assigned why the charger should take upon himself this debt, and relieve the suspender; and that no proof is offered to instruct said averment, which is contradicted by the fact, that the suspender was a party to the bill, which, according to his own account, he ought not to have been; and also by the narrative of the transaction contained in the assignation by the bank agent, which is not objected to as giving an incorrect account of the transaction: Finds it stated by the charger, that the second bill was dishonoured, and that he was obliged to retire it; and although the statements in the article which contains this averment are denied, without any detail of particulars, the fact, as stated by the charger, is so far proved by the statement in the assignation, and the absence of any allegation that the suspender, or any other of the parties, paid it: Finds, that as the charger retired from the Bank this second bill, and as the proceeds of said bill had been applied to retire the first bill, he was entitled to obtain an assignation to the first bill, which thus came to be retired by his money, and to operate payment thereof from the parties thereto,-unless it could be shown that, by the second bill, the obligation of any of the parties in the first bill was altered, which, however, has not been done: Therefore repels the reasons of suspension; finds the letters and charge orderly proceeded, and decerns; finds expenses due, allows an account thereof to be given in, and remits to the auditor to tax the same, and to report.-Note.If the statement of the suspender had been correct, that he was to be relieved, and the charger substituted in his place in these bill transactions, since he was also an obligant in the second bill, the Lord Ordinary is inclined to think, that the suspender, who in the assignation is designed writer in Auchtermuchty, would have taken some letter from the charger as evidence of that important fact. The circumstance, that this debt was not given up by the charger in the state of his affairs to his creditors, is probably accounted for by its having been then in the hands of a creditor, in security for advances. This, no doubt, is denied. But it seems unnecessary to investigate this point, as the charger is entitled to plead that it is jus tertii to the suspender, who is not a creditor of his. The sequestration is at an end by a composition-contract, and the charger is again invested with his means and effects, and production of the debt and diligence is his title to insist for payment. The plea of prescription was not insisted in at the Bar."

The suspender reclaimed, and pleaded-I. The charger having given up, under his sequestration, a list of debts due to him, in which the bill in question was not included, and his composition-contract having been ratified by his creditors, and by the Court, on the assumption that this list included all the debts due to him, he is barred, personali exceptione, from now charging for payment of that debt, inasmuch as

he cannot do so without founding on his own fraud; and, moreover, he has now no title to the debt, seeing his title depends on his reinvestment in his estate and effects, as implied in, or arising from the approval of, his composition-contract, which reinvestment could not include the bill in question, as it was not given up by him under the sequestration.-II. The bill in question is prescribed.-III. The diligence now in question is inept, as it was raised long after the lapse of the years of prescription, at the charger's instance,— no such diligence having been raised by him within. the years of prescription.-IV. The assignation in question having been taken by the charger to a bill which was past due, and was not only dishonoured and protested, but had previously been the subject of diligence at the instance of Mr Walker, the granter of the assignation,-of all which facts the charger was or ought to have been perfectly aware,-his right is subject to all the exceptions pleadable against Mr Walker, his cedent.-V. Moreover, the said assignation is objectionable and invalid, as having been granted and taken for the purpose of rearing up a claim against the suspender on account of the bill in question, upon which, as already mentioned, all claim. against him had been extinguished.-VI. As all claim against the suspender on the bill in question had been extinguished in the manner already mentioned, with the exception of a small balance of £2, 5. 5.; so that Mr Walker could have no claim against him, except for that balance, neither could the charger, his assignee, have any greater claim. Answered-I. The bill in question not having been in the possession of the charger, nor forming part of his property at the date of his sequestration, could not have been given up by him to his creditors. It had been previously bona fide impledged for advances of money. The objection, even if it were well founded in point of fact, is not one which can be competently pleaded by the suspender.— II. The title of the charger to the bill in question, and his right to recover its contents from the suspender, are unquestionable, being founded on an assignation from the last indorsee, granted in consequence of the charger's having made payment of its contents to that individual for the relief of the suspender and the other indorsers.-III. The obligation to which the charger subjected himself, by consenting to become a party to the second bill of the 27th July, and in consequence of which he was forced to pay its contents, having been undertaken on the credit and for behoof of the suspender, he is bound to relieve the charger from the consequences.-IV. The bill in question having been regularly negotiated by the charger's authors, in all of whose rights he now stands vested, in consequence of the assignation in his favour, the objection which has been stated as arising out of the sexennial prescription is without foundation.

The Court adhered.

JURY CAUSES.

12th July 1832.

*

No. 40.-JAMES HUNTER, Pursuer, v. THOMAS DODDS, Defender.

Proof-Competency-Commonty-Prescription-In a process of division of commonly-Held, I. That it was competent to interrogate a herd on the common, what instructions he had received from his master as to the boundaries of it, though the master was not proved to be dead, and had not been adduced as a witness.—II. That a deposition of a feuar, though taken without objection, under a commission of perambulatim, was inad. missible, in respect of interest in the division of the commonly. -III. That an ex parte riding of the marches of said commonty was not evidence.

In 1818, Mr Hunter, proprietor of Oldhamstocks, raised a summons of division of the commonty of Oldhamstocks; and after a commission, and perambulation, and a proof, the defender, Mr Dodds of Stotencleuch, a conterminous heritor, objected, that part of the land claimed by the pursuer was not comonty, but belonged to the estate of Stottencleuch. The case having been prepared for trial by jury, an issue was framed, the essence of which was, whether the portion of land in dispute had, for 40 years and upwards, prior to May 1818, been possessed by the parties as common property? ? To prove the boundaries, the pursuer called a herd of Mr Denholm, a former tenant of Stottencleuch, and asked him whether Denholm had given him any instructions regarding the boundaries of the common? Objected-It is not proved that Denholm is dead,-if still alive, he ought to have been adduced as the best evidence. The Court were of opinion, that the question was competent. The pursuer then proceeded to put in evidence the deposition of a witness, designed feuar in Oldhamstocks, who had been examined in the proof led before the Commissioners in the perambulation. Objected-The evidence of this party is inadmissible. He is a feuar, and has an interest in the division of the commonty. Answered.-The defender was a party to the proof taken in the perambulation years ago, and did not object to the deposition of the witness. It is now too late to object.. Replied-Because the proof might be irregularly taken, does not make the deposition of a witness, who had an interest, competent to go to a jury. The Court was of opinion that the deposition was inadmissible. Had the witness himself been now adduced, and the same objection stated, his evidence would not have been received. The same objection applied to his deposition. The

Note. At the July sittings, there were 21 cases set down for trial by jury,-viz. seven before the First Division, and 14 before the Second Division of the Court. Of the seven cases before the First Division, four were delayed and three tried. Of the 14 cases before the Second Division, five were compromised, one delayed, and eight went to trial. Most of the cases involved only matter of fact, and gave rise to no points of law at the trial. In several of them, exceptions were taken at the trial; and as the time for moving for new trials, and tendering bills of exception did not expire till six days after the meeting of the Court (20th November), in terms of the 434 and 54th sections of the Jury Court Act of Sederunt. it was thought proper not to report any of them till they became final.

pursuer then tendered a minute of riding the marches by Hunter and others, at a former period, which had also been put in evidence before the Commissioners. Objected-This is merely an averment of the party, for the riding the marches was an ex parte proceeding. The Court sustained the objection. The defender adduced no evidence, and the Lord President charged the jury to find for the defender, in respect that possession for 40 years had not been proved, and that therefore the question resolved into one of prescription, which was purely matter of law.-The defender had a verdict.

First Division.-Lords President and Cringletie.-Act. Solicitor-General (Cockburn), and Spiers.-Alt. Dean of Faculty (Hope), and G. G. Bell. Hunter, Campbell & Cathcart, W. S., and Brodies & Kennedy, W.S., Agents.-Jury Clerk. —J. W. H.]

16th July 1832.

No. 41.-ANN BUCHAN, Pursuer, v. JAMES HARPER, Defender.

Proof-Witness - Interest Admissibility-New Trial-A party having waived his objection to the admissibility of a wilness, beneficially interested in the issue of a cause as a legatee, and stated judicially his intention to pay her legacy; and a second trial having taken place-Held, I. That he was not barred from insisting in the objection of interest, by what happened at the first trial.-II. That the declaration of intention to pay legacy, did not remove the objection of inadmissibility on the head of interest.

the

This case is fully reported antea, Vol. IV. p. 155 & 403. The object of the trial was to determine, whether a certain letter, containing legacies to several individuals, formed part of the will of a deceased Mrs Matheson, in favour of the defender. The jury having found for the pursuer, one of the legatees, a new trial was moved for, and granted on 10th March 1832, on the ground that the verdict was contrary to evidence. At the second trial, the pursuer adduced several new witnesses, who swore positively to the genuiness of Mrs Matheson's signature. Having called Agnes Finnie, servant to the deceased, one of the legatees, and who had been examined on the former trial,-It was objected, that she was inadmissible, in respect that she was beneficially interested in the issue of the cause. Answered-At the former trial, the defender waived this objection, and stated that he intended to pay her legacy. This assurance removed all objection to her inadmissibility, as she had now no interest in the case, as she would get her legacy, whatever way it was decided. Replied-The former trial must be held as never to have taken place;-what was done then cannot influence the proceedings of the present one. Besides, a declaration of intention does not bind the defender to fulfil it. He may refuse payment of the legacy if he thinks proper. The witness has no claim in law for it, until a verdict be returned against the defender, so that she has a beneficial interest in the case, and is therefore inadmissible. The Court sustained the objection. The pursuer had a verdict.

Second Division.-Lords Justice-Clerk and Cringletie.-Act. Solicitor-General (Cockburn) & Cuninghame.-Alt. Dean of Faculty (Hope) & Buchanan.-G. J. Ure, W. S., and Gordon & Barron, W.S., Agents.-Jury Clerk.—[J. W. H.]