thus in Mrs Simmie or Wishart, and the petitioner prayed the Court, in these circumstances, to remit his accounts to the junior Lord Ordinary, and, on report upon the same, thereafter to pronounce decree exonering and discharging him of his intromissions, and to ordain the petitioner and Mrs Brodie Simmie or Wishart to execute such deed as may be necessary to have the shares transferred to her. The preliminary inquiry into the factor's accounts having been gone into, and report made thereon, the Court this day pronounced this interlocutor authorizing the transfer of the shares:

"The Lords, on report of Lord Mackenzie, Ordinary, authorize the petitioner to grant the necessary deed of transference in favour of the said Mrs Brodie Gordon Simmie or Wishart to the shares mentioned in the petition; and remit to the Lord Ordinary to see this done, and to report."

For the Petitioner, Hamilton Pyper; Gillespie and Chalmers, W.S. Agents.-L. Clerk.-(T.S.P.)

10th July 1857. FIRST DIVISION.

Sir HEW DALRYMPLE, Bart., Petitioner. Entail Act-Charging with Debt-Powers granted to an heir of entail in possession, to charge the entailed estate with £10,000, and to grant a disposition in security for that sum under the provisions of the Entail Amendment Act, sect. 5.

This was a petition presented by the petitioner, heir of entail in possession of the entailed lands and estate of North Berwick, in virtue of the entail executed by the deceased Sir Robert Dalrymple, eldest lawful son of Sir Hew Dalrymple of North Berwick, Lord President of the Court of Session, for authority to charge the entailed estate with debt, in virtue of the Entail Amendment Act, 11 and 12 Vict., cap. 36, sect. 4, which authorizes the heir of entail in possession, "with such and the like consents as by this act would enable him to disentail such estate, to sell, alienate, dispone, charge with debts or incumbrances, lease and feu such estate in whole or in part," &c., "the authority of the Court of Session being always obtained thereto," &c., the provisions of which Act are further extended by the 16 and 17 Vict., cap. 94, sects. 4 and 5.

The petitioner stated that he was desirous of availing himself of the provisions of the foresaid act, to the effect of charging the entailed estates with debt to the amount of £10,000; and he proposed to grant a bond and disposition in security, or bonds and dispositions in security, over the same, for payment of the said sum, to any person or persons he may think fit, and to the effect of creating a real and valid incumbrance over the lands. His only brother was the next heir-substitute, and was of full age, but the next two heirs-substitutes were his sons, who were in pupillarity. The deed of consent was signed by his brother John Warrender Dalrymple on his own account, and it was also signed by him as the tutor and legal guardian of his sons.

A tutor ad litem was appointed by the Court to the pupils; and the necessary steps of service and advertisement having been regularly gone through, the Court authorized the disposition in security to be granted over the entailed estate for the sum mentioned in the petition.

Lord Ordinary, Mackenzie.-Act. Ross, John Murray, S.S.C. Agent.-L. Clerk.-(T.S.P.)

10th July 1857.

FIRST DIVISION.

JOHN FOTHERINGHAM, Petitioner.

Factor Loco Tutoris-Special Powers-Here special powers were granted to grant leases for 13 years, and to make up titles in the person of the pupil.

This was an application by the petitioner, factor loco tutoris for John Mitchell Mowbray, a pupil 16 months old, for special powers to grant leases of the pupil's lands and subjects. The factor had made a report to the Accountant of Court on certain matters connected with the management of the pupil's estate, who reportel that the proposed powers would be advantageous to the pupil's estate. The powers sought were- -(1.) To authorize to accept of an offer of lease for 13 years of certain lands, at a rent of £152:10s. (2.) To accept of an offer of lease of a distillery and malt barns for 12 years, at a rent of £370 per annum. Of both these subjects the pupil was only pro indiviso proprietor. (3.) To make up titles in the person of the pupil. After remit to the Lord Ordinary, and the usual procedure, his Lordship reported that the prayer ought to be granted. The powers granted, as prayed for, accordingly. Lord Ordinary, Mackenzie.-Act. E. S. Gordon; Keegan and Wallace, S.S.C. Agents.-L. Clerk.-(T.S.P.)

10th July 1857.

FIRST DIVISION.

Mrs AGNES CHIENE OF THOMSON, Petitioner. Judicial Factor-Special Powers-A petition for the appointment of judicial factor prayed the Court also to grant special powers to make up titles, and to discharge heritable securities at same time; but the Court only appointed the judicial factor with the usual powers.

On the death of all the trustees acting under a trust, the only fund undisposed of was two sums of money, one of £1266: 13: 4, and one of £333:6:8, which the truster directed his trustees to invest for behoof of the petitioner Mrs Thomson in liferent, and her children in fee. The trustees had invested £600 of these sums on heritable security, taking the bonds and dispositions in security in their own names, for the purposes of the trust. The remaining part of the funds was due to the trustees by the representatives of Dr Melville. The borrower under the £600 bonds had died, and his representatives had sold the subjects, and were ready to pay the principal sum.

The trustees had power to assume new trustees in room of those deceasing, but had not done so.

In these circumstances the petitioner prayed the Court for the appointment of a judicial factor in so far as the funds provided to the petitioner were concerned, and at same time for special powers to the factor to make up titles, in order to assign and discharge the two heritable securities above mentioned.

After the usual intimation the appointment was made, with the usual powers.

Lord Ordinary, Mackenzie.-Act. Munro; Jas. Moore, S.S.C. Agent.-C. Clerk.--(T.S.P.)

10th July 1857.

FIRST DIVISION.

JOHN CULLEN, W.S., Pursuer, v. ARCHIBALD KERR, Defender.

Sale-Shares-Relief from Bargain A purchaser of shares through the medium of a broker (the defender), sought relief from the transaction and repayment of the price, on the ground that they were not the shares he purchased, and that he had acted illegally and contrary to his instructions in making the purchase; but in this action he did not seek to reduce or set aside the sale, nor offer to return the shares or transfers-Held, that he was not entitled to relief in these circumstances, and defender assoilzied from the conclusions of the action as laid.

An action of reduction and relief was raised by Mr Cullen against the defender, arising out of a former action raised by Black against Cullen (vide supra, xxv. 387,) in regard to certain railway shares bought by Mr. Cullen through the medium of Kerr, a stockbroker in Glasgow. In the former action Cullen was successful, after taking the case to the House of Lords, but without obtaining his expenses. He now brought the present action of relief for repetition, first, of £446 paid as the price of 180 shares in the Great Northern Railway Company; and, second, of £1500, or such other sum as shall be found to be the amount of costs incurred by him in the previous action.

The pursuer stated in his summons that he had given instructions to Kerr, in October 1847, to purchase for him 180 shares in the Northern Railway Company

In terms of these instructions Kerr purchased for him the shares, and transmitted the usual purchase-note representing the number of shares, and stating-" I have bought for you 180 shares of the Great Northern Railway Company." Some further correspondence took place as to the payment of the price. At last payment of the price, amounting to £446: 18: 6, was made, by Mr Cullen sending his clerk to Glasgow, for that purpose, on the 6th November following, and a receipt was granted, and the transfer for the shares then delivered.

It was further narrated that Mr Black, the person from whom Mr Kerr purchased 50 of these shares, raised an action against Cullen to register himself as the owner of these shares, and to relieve him of a call then due, and of all future calls, but from this action Mr Cullen was successful in obtaining absolvitor. He had, after being called in that action, raised an action of relief against Kerr, which was allowed to lie over until the issue of that case; and the present case, therefore, consists of two actions, the former having been conjoined with the action of relief now raised.

The record further narrated, that—

"This was the transfer which the pursuer's clerk received from the defender in exchange for the price of the 180 shares said to have been bought by the defender for the pursuer on the 15th October 1847. The instrument includes a double transfer, one by Lindsay, and the other by Black, the former professing to assign 130, and the latter the remaining 50 shares necessary to make up the 180. The pursuer had no knowledge of, nor any previous communication with, either of these persons; and, in particular, he had no contract, agreement, or connection of any kind with Mr Black, who was an entire stranger to the pursuer, and, as far as he was aware, made his first appearance in the transaction as a subscriber of the above transfer. But, as the pursuer believed, and had no reason to doubt, that the instrument truly and bona fide related to, and was meant to be in fulfilment of, the purchases previously made for him by the defender on

the 15th October, which was the representation necessarily made to the pursuer by the very tender of such a document under the circumstances, professing, as it does, to transfer the exact number of shares reported to the pursuer by the defender as having been purchased for him on that occasion, he, without hesitation, put his name to it.

"But the pursuer afterwards discovered that the shares referred to in this deed as belonging to Lindsay and Black formed no part of the shares purchased by him, or by the defender on his account, on the 15th October; that, in fact, the defender had made no such purchase at that time, and had never at any time purchased any shares whatever, either from Lindsay or Black, on the pursuer's account; but that the attempt to palm off these shares upon him originated in some stockjobbing device or manoeuvre between the defender and Black, or other sharebrokers or interposed parties, with whom the pursuer had no concern whatever.

66

Accordingly, in an action at the instance of the said Alexander Black against the present pursuer, to be afterwards rcferred to, it was admitted by Black, and was a fixed point in that case, that the sale alleged to have been made by him, and in implement of which he granted the above transfer, did not take place till the 6th of November 1847, and could not, therefore, by possibility, include or apply to shares confessedly purchased for the pursuer by the defender on the 15th October preceding. It hence appeared that the shares thus attempted to be fastened on the pursuer had never been purchased by him on his account at any time, as the defender was never authorized to purchase, and never did, in fact, purchase, shares of any kind for the pursuer on the 6th of No. vember, or at any later date than the 15th October. Again, it appeared, and is the fact, that the price of the shares said to have been sold on the 6th November did not correspond with any of the prices at which the defender reported the various purchases to have been made for the pursuer on the 15th of October; and, in short, the whole matter turned out, upon full investigation, to be a mere colourable pretence for inveigling the pursuer into a liability for shares which he had never purchased, and which Black had never even sold to him.

"That from the terms of the deed of transfer, it appears, that while the numbers of the shares are carefully specified in both transfers, the price or consideration money is in both left blank. The numbers must of course have been taken from the stock certificates, which, being in possession of the respective pretended sellers, enabled them to do this without difficulty. But as they must have been equally well aware of the sums which each of them stipulated for, or was to receive as the price of the shares, and as the defender was equally well aware of the sums he was paying, there could be no good reason for not filling up these prices at the same time, as is expressly required by the statutes in that behalf. If there was any reality in the transaction, or any price at all, either stipulated for, or paid to, the parties appearing as alleged venders in the transfer, so vitally material a circumstance as the amount of the price or consideration money must of necessity have been set forth in the instrument; but while the parties concerned were at the pains to specify minutely the numbers of the shares, they left the price or consideration money an entire blank.

That it soon afterwards appeared that the railway company had made a call of £2:10s. per share on the 3d of November, three days before the date of the alleged sale on the 6th, which neither Lindsay nor Black had paid. By that neglect or failure they were disqualified from executing any transfer.

"The transfer, as sent by the defender to the pursuer, was incapable of registration, and was truly inoperative and unavailing."

To this action the defender stated the defence, that the pursuer had received and accepted the transfers without objection, and by this he had adopted the sale; and that the defender had acted in all respects in regard to it in conformity with his instructions, and the usage and rules of the Glasgow Stock Exchange.

said to have been made on the 6th November, as one of those which had been previously made on 15th October, in virtue of the pursuer's instructions, had thereby deceived and misled the pursuer into that belief, on the faith of which he induced the pursuer to pay to him the sum of £446 as the price of said shares last mentioned, he is now in law and justice liable to repeat and pay back to the pursuer the said sum, with interest thereof, as libelled.

"2. As the defender, by his misconduct as aforesaid, involved the pursuer, or was the cause of his being involved in a long litigation with Black both here and in the House of Lords, the result of which, as now finally adjusted, is, that there was no such transaction between Black and the pursuer as the defender falsely represented, he is now liable to relieve the pursuer of the whole expense of that litigation, as the same shall be ascertained in this process."

For the defender:

"1. The pursuer has no relevant or sufficient case to subject the defender, as concluded for.

"2. The defender having, in the matters in question, acted in conformity with the employment and instructions given by the pursuer, and according to the usage and rules of the Glasgow Stock Exchange, he is entitled to absolvitor.

"3. The pursuer having adopted and acquiesced in the transaction as completed for him by the defender, and having taken the shares and accepted of the transfers thereto, retained the same as his own property for so long a period, is debarred from now maintaining such an action as the present."

The Lord Ordinary (Handyside), on 16th June 1855, pronounced this interlocutor:

"Finds that the consideration of the conclusions of the summons of relief has been superseded by the judgment assoilzieing the pursuer, pronounced in the action brought against him by Alexander Black, and by the pursuer's now insisting in the second conclusion of the other summons raised by him since his absolvitor from Black's action: Finds that the pursuer has stated relevant grounds to entitle him to insist in the first conclusion of his last raised summons, that the defender should repeat and pay back to him the sum of £446 sterling, therein concluded for; and allows him to lodge a draft issue applicable to that conclusion of his summons, and the defender to lodge such counter issue as he may be advised: And with regard to the second conclusion of the same summons, for payment to the pursuer of such sum as shall be found to be the amount of the costs incurred by the pursuer in defending himself against the action at the instance of Alexander Black-finds that the pursuer has not set forth sufficient grounds to subject the defender to make payment as concluded for, and in so far dismisses the summons; and assoilzies the defender, and decerns," &c.

The defender reclaimed to the Inner House against the above interlocutor, in so far as it found that

"the pursuer has stated relevant grounds to entitle him to insist in the first conclusion of his last raised summons, that the defender should repeat and pay back to him the sum of £446 sterling, therein concluded for."

The draft issue proposed by the pursuer was at sametime given in.

At advising

Lord President.-I do not think that this case comes before us in a satisfactory shape, so as to raise the question the pursuer intends to raise by these actions. Mr Cullen says he employed Mr Kerr to purchase the shares in question in October 1847; that, in short, he purchased these on the 15th of October of that year; but some delay occurred, and Mr Cullen wrote Kerr to say that he would send his clerk with the price, stipulating, that unless the usual transfer was delivered he would declare himself free from the transaction.. The clerk went to Glasgow, he pays the shares, and the shares and transfer are handed over, and the transfer thus completed. Matters remained in that position for sometime, and no objections were stated on his part to the transfer. Had Mr Cullen looked into the transfer and had found it blank, he could not have been heard to complain. At least he would have found that he had not purchased the shares from Mr

Black at all. But the 50 shares sold by Black to Howie Munro of the Stock Exchange were the shares upon which litigation afterwards arose at Black's instance against Cullen. After judgment in this Court and the House of Lords, and a remit made, we pronounced judgment upon the facts admit. ted by Mr Black. I was in the majority in pronouncing that judgment. At sametime I felt great difficulty in some aspects of the case then; and now, Mr Cullen is prosecuting for relief against those liabilities which Black sought to attach to him. The first of these actions it was unnecessary to proceed with, because Mr Cullen was ultimately successful in the action raised by Black against him. And he thereafter raised the present action of relief against Mr Kerr, to make payment and repetition of the price of the whole shares, and for the expenses of the former suit. This action rests on inference rather than on averment. But, besides, the record does not cover the whole case, it only refers to averments in regard to 50 shares, and not to the whole 180 shares; and it does not therefore embrace the whole case, to enable us to deal with the whole parties, and with the whole shares, the price of which, repetition is sought. This is an action, besides, to have back the sum of £446, the price thereof; but this record says nothing about the shares, whether they are to be returned or not. While, to sustain a demand of this kind, it is clear an action of reduction was necessary to set aside the whole transaction. I do not wish to say what would be the result of such an action, whether there be intervening circumstances which may prevent repetition, or giving him the sum he claims without seeing and ascertaining what he intends to do with the shares. His averment is, that he never got the precise shares. 1 do not go into the fact whether he got No. 20 instead of No. 200, or whether he was entitled to the one more than the other: for shares, properly speaking, have no earmark; but it is clear that circumstances occurred that ought to have suggested to him the propriety of looking into the transfer. I am therefore for sustaining the reclaiming note for Mr Kerr, and refusing that for Mr Cullen.

Lord Ivory absent.

Lord Curriehill.-I come to the same result, and nearly on the same grounds. The summons contains two conclusions -1st, for repetition; 2d, for the expense of the former suit with Black. When we come to examine the statement of facts in the record, it appears that the pursuer Mr Cullen accepts and signs the transfer. He never objected to the shares or transfers, and on the record he does not now offer to return them. When a party seeks relief from a transaction, he must make offer to restore what he has received on his part. When he seeks a remedy on the ground that the transaction was sine causa, it is impossible he can succeed unless he reduce the whole transaction upon the principle of condictio indebiti. Assuming, therefore, that there was fraud, the remedy taken and sought here is not the proper one. The proper course was to set aside the transaction upon the ground of fraudulent concealment, if he could establish such averments.

Lord Deas.-I concur in the result arrived at by your Lordships. The new summons, which was raised in May 1853, comprehends both branches of the pursuer's claim. It concludes, 1st, for repetition of the £446 paid in November 1847 as the price of the shares purchased on 15th October; 2d, for relief of the expenses incurred by the pursuer in the action at Black's instance, in which the pursuer was assoilzied, but no expenses were found due to him.

As regards the sum of £445, the case stated by the pursuer is this. He says that, in conformity with instructions, the defender bought for him, on 15th October 1847, 180 shares of the stock of the Great Northern Railway, at prices which amounted to the above sum: -that, on 6th November 1847, the pursuer received from the defender a transfer, by Messrs Lindsay and Black, of 180 shares of said stock with relative certificates, and paid in exchange therefor the price of £446:-that the pursuer afterwards discovered that other parties, and not Messrs Lindsay and Black, had been the sellers of the shares bought for him on 15th October; and upon these bare facts,— which alone the pursuer proposes to put in issue,—and retaining in his possession the certificates and transfer, and without proposing to reduce either the transfer or the actual transaction which he alleges to have taken place on 15th October, he concludes for repetition of the £446. The whole case, when so put, appears to me a non sequitur. The pleas in law and

the issues, proposed by the pursuer as the issues on which he stands, are, alike, insufficient to warrant the proposed result. Suppose all the facts embodied in the issues to be admitted, would it necessarily follow that, under the last of them, in which the gist of the whole lies, the defender was indebted and resting-owing to the pursuer in the £446? I think not. The pursuer, in article 4 of his condescendence (after having stated the prices in the previous article), says,-"In this manner the purchase of 180 shares of the stock of the Great Northern Railway on the pursuer's account, was made and completed by the defender, on the 15th October 1847, in conformity to his instructions." And, in article 24, he says, that, on 6th November, "he discovered from the defender's books, which the defender reluctantly showed, the names of the different parties from whom the defender had purchased the 180 shares, as communicated on the 15th October 1847." Well then, if this be so, let him demand to be furnished with a transfer from these other parties on giving up the transfer and certificates in his possession, and this will raise the question, alluded to by your Lordship in the chair, whether shares of stock are claimable as earmarked, or whether one set of 180 shares is as good a tender as another. But to hold the original purchase of 180 shares as well made and binding,-to retain the transfer and certificates applicable to the subsequent purchase of the same number of shares,-and, at the same time, per saltum, to demand back the whole price of £446, appears to me to be totally out of the question.

Then, as regards the expenses of the action at Black's instance, it has been decided that Black could not enforce against the pursuer a sale of shares made to the defender on 6th November 1847, for the plain reason that the pursuer had given no mandate for that purchase. But, for the reasons stated by your Lordships, it does not follow that the defender is liable to the pursuer for the expenses incurred in that litigation. As yet it has not even been decided that the pursuer can refuse the same shares if tendered to him by the defender; and the pursuer has brought no action to try that question. The defender was no party to the action at Black's instance; and I think it a most material fact that, in that action, for reasons which we must here assume to have been sufficient, the pursuer was found not entitled to his expenses against the very party who, of all others, was most clearly liable for them, if the pursuer had been fairly entitled to indemnity.

The Court pronounced this interlocutor:—

"The Lords having advised the mutual reclaiming notes, Nos. 168 and 169 of process, and heard counsel for the partiesRecall the interlocutor submitted to review: Find that it is set forth by the pursuer on record, that on 15th October 1847, 180 shares of the stock of the Great Northern Railway Company were purchased for him by the defender as broker, and that on 6th November 1847 he paid to the defender £446, being the stipulated amount of the price of said shares, and that at the same time transfers in his favour to 180 shares of the stock of the said company, and relative certificates, were delivered to him, as in implement of said purchase, which transfers and certificates have been retained by him: Find that the pursuer now seeks repetition of the said sum of £446, on the ground that the shares mentioned in the said transfers were not the shares purchased for him on 15th October, but were other shares purchased on or about 6th November without his authority, and that he was induced to pay the said sum, and to receive the said transfers and certificates, in the belief that they had reference to the shares purchased for him on 15th October: Find that while, in this action, the pursuer demands repetition of the said sum of £446, he does not seek to rescind or offer to relinquish the purchase made for him on 15th October, and does not seek to rescind or offer to relinquish or restore the transfers in his favour, delivered to him, of 6th November, and relative certificates; therefore assoilzie the defender from the conclusions of both of the conjoined actions as laid, and decern: Find the defender entitled to the expenses incurred by him in each of these actions, as well as in the conjoined processes; appoint an account," &c.

Lord Ordinary, Handyside.-Act. R. Buchanan, Penney; Party, Agent.-Alt. Macfarlane, Young; Morton, Whitehead, and Greig, W.S. Agents.-L. Clerk.-(T.S.P.)

Omitted of its proper date.

23d June 1857.

FIRST DIVISION.

JOAN M'LEAN, Advocator, v. RALSTON, GOODWIN and Co., Respondents and Pursuers.

Process-Plea in Law-Proof-Copartnery-Resting-Owing(1.) An action was brought against the individual partners of a dissolved company for furnishings ordered by one of them before the dissolution-Held it to be established by the proof, that these were furnished to the firm and not to the individual partner. (2.) Doubted if it be competent under the 16 and 17 Vict., c. 80, to plead on grounds not entered on the record below. (3.) Also doubted if it be competent so to plead by inserting a plea in law in the advocation so as to raise it.

An action was raised by the respondents, iron merchants in Glasgow, against Wilson and M'Lean, sometime calenderers in Glasgow, now dissolved, as a company, and Robert Wilson, calenderer there, and John M'Lean, spirit dealer in Glasgow, the only known individual partners of the said company, for payment of £46:18:1, being the amount of an account for goods supplied, and inter alia for pitch chain. The defence was as follows:

"The defender John M'Lean's procurator stated, that the defence was-Preliminary: That the defender Wilson's trustee has not been made a party to the action.-On the merits: A denial of the present defender's liability to the pursuer for the sum sued for."

In some correspondence with M'Lean, he stated that his impression was, that the account was paid, as he held a receipt for £16:11:1, which was all that was due them at the date of the dissolution on 30th September 1852, but there was no defence of payment on the record.

The Sheriff allowed a proof of the furnishings, and the Sheriff-substitute, upon the import of that proof, pronounced the following interlocutor:

Glasgow, 12th January 1855.—Having resumed consideration of this process, and heard parties' procurators thereon, finds sufficient evidence that the goods charged for in the account libelled on were furnished by the pursuers to the defenders: Finds, with regard to the pitch chain in particular, that it was ordered by Mr Wilson, one of the partners of the defender's firm; that it was erected in the defender's premises, and intended to be used in the defender's business: Finds no sufficient evidence that Mr Wilson ordered it for himself individually, and not for his firm: Finds, therefore, that the pursuers are entitled to charge the chain against the defenders, and that the price charged therefor is moderate and reasonable: Finds no evidence that any part of the account libelled on has been paid: Therefore, decerns against the defender, in terms of the conclusions of the libel; and finds the defenders liable to the pursuers in expenses, of which allows an account to be lodged, and remits the same to the auditor to tax and report."

Against this interlocutor M'Lean appealed to the Sheriff, and after hearing parties on that appeal, the Sheriff pronounced the following interlocutor:

"Glasgow, 6th March 1855.-Having heard parties' procurators under the appeal for the defender upon the interlocutor appealed from, and whole process, in respect the evidence adduced tends to show that the articles sued for, and in particular the pitch chain, were ordered by Mr Wilson for the company, and suitable for the business of the company as 'finishers,' or 'starchers' and 'driers,' not for him as an individual; and in respect the pitch chain was delivered at the premises of the defenders, adheres to the interlocutor appealed from, and dismisses the appeal."

M'Lean then brought the present advocation, pleading the following additional pleas:

"1. The pitch chain machine in dispute not having been

ordered by Wilson and M'Lean, nor for them, the advocator is entitled to absolvitor.

"2. The account rendered against the firm at its dissolution not including the said machine, and no demand being made for the price thereof against the firm or the advocator, until after the bankruptcy of Wilson, the advocator is entitled to be assoilzied.

"3. The said machine being ordered by Wilson for experiments of his own, and being used by him as his own property, and taken away by him at the dissolution of the firm, the advocator is entitled to be assoilzied.

"4. The first part of the said machine being included in an account rendered against Wilson himself, and settled by his bill, which was afterwards paid by him, and the rest of the machine being also charged against Wilson, and not included in the account rendered against the firm, and no claim being made against the firm or the advocator until after Wilson's bankruptcy, the advocator is entitled to be assoilzied.

"5. In the circumstances, the documentary evidence cannot be contradicted by parole evidence."

"Additional Plea for Pursuers.-The whole goods specified in the account libelled on having been furnished to the company of Wilson and M'Lean, by their order, and for their be hoof, and the charges therefor being reasonable, the interlocutors complained of are well-founded, and the present advocation falls to be dismissed, with expenses."

The Lord Ordinary pronounced this interlocutor:"The Lord Ordinary, upon the motion of the advocator, and this being the first calling of the cause, appoints the record made up, and proof led and concluded before the Inferior Court, with any other papers which may be deemed necessary, to be printed and boxed for the Judges of the First Division of the Inner House, to whom, in terms of the statute, reports the cause."

At advising

Lord President.-I do not think a sufficient case has been made out here for altering the Sheriff's judgment. The question is, to whom were the pieces of chain in dispute furnished? Whether to Wilson as an individual, and for himself, or to the firm of Wilson and M'Lean? In my opinion, the evidence led instructs, that it was furnished to the firm, and delivered at their place of business; and therefore the defence of nonliability falls to the ground.

With reference to the item of £16:11:10, in regard to which payment is now pleaded, I observe that this was not pleaded in the Inferior Court, nor is it even founded on in the additional plea in law. And there is an excerpt purporting to be an excerpt from the books of the pursuer, but how this excerpt came there does not clearly appear. In these circumstances, I cannot hold that this excerpt proves the payment of this sum. A party's books may be proof against himself, when adduced in regular form; but in this case, where no defence of payment has been entered on record, I cannot look to it as evidence of such payment.

Lord Ivory.-I am of the same opinion.

Lord Curriehill.-I also concur with your Lordships. Lord Deas.-I am of the same opinion. Two defences have been pleaded at the bar-1st, Payment; and, 2d, Non-liability. But the latter alone is stated in the record. Non-payment is a matter of fact, and ought to have been stated in the record. I doubt if introducing it into the pleas in law in this Court would have been sufficient. But, at all events, this is not done. The Statute (16 and 17 Vict., c. 80, sect. 3) requires that the minute shall state concisely the grounds of defence, and the schedule appended to the act gives instances of how this should be done-showing clearly that, although short, the defences are intended to be intelligible and specific. Were it otherwise, indeed, the record could only be calculated to mis. lead. In the present case the full account was appended to the summons, and letters had passed about it previously, so that the advocator, if he meant to plead payment, could have no excuse for merely pleading non-liability, which was, in truth, inconsistent with the supposition of payment. If the advocator suffers hardship from the state of the record it is a hardship for which he has himself to blame. But I do not see that he suffers any. For it is plain enough that when the excerpt, so much dwelt upon, from the respondents' books was made, the object in view was to obtain entries bearing on the question of non-liability, and not upon the question of pay

ment, which had not then been raised. Upon the 2d point, viz., whether the chain was ordered for and delivered to the advocator, the proof is not, perhaps, in all respects, so satisfactory as it might have been; but, on the whole, I agree with your Lordships that the result of it is in favour of the respon dents.

The Court pronounced this interlocutor:

"Advocate the cause, and recall the interlocutors complained of: Find that it is sufficiently established, as matter of fact, that the pieces of pitch chain, the charges for which, and the carriage thereof, in the account sued for, and amounting to £30: 7s., are the only items in that account, liability for which has been denied by the defender M'Lean, were furnished to the company of Wilson and M'Lean, of which the defender M'Lean was a partner: Find, as to the remainder of the account libelled on, amounting to £16:11: 10, payment of which, though not pleaded in the record, was the only defence urged at the bar, that such payment has not been instructed: Find, in point of law, that the advocator M'Lean, as a partner of the said company of Wilson and M'Lean, is liable for the account sued for, and that payment of any part thereof has not been instructed: Therefore decern against the defender and advocator M'Lean, in terms of the conclusions of the libel in the Inferior Court: Find the defender and advocator liable to the pursuers in expenses of process both in the Inferior Court and in this Court; allow an account," &c.

Lord Ordinary, Handyside.-Act. Dean of Faculty (Inglis), Scott; John Galletly, S.S.C. Agent.-Alt. Penney, A. B. Shand; John Walls, S.S.C. Agent.-C. Clerk.—(T.S.P.)

11th July 1857. FIRST DIVISION.

JAMES MURRAY GRANT, Pursuer, v. ROBERT GENTLE, Defender.

Issues, Adjustment of-In an action of damages for muir burning, which involved the question, whether the tenant could be held liatk for the act of his shepherds and servants, issues were adjusted to try that question.

An action of damages was raised by the pursuer, proprietor of the farms of Knocky and Foirbeg, situated in the parish of Bolleskine, and county of Inverness, against his tenant, for burning the muir on these farms, contrary to the stipulations of the lease.

These farms, he stated, were valuable both as sheep walks and shooting grounds, and had been possessed as such for a period of many years; and this action was brought against Robert Gentle, the defender, as the grazing tenant of these farms, under a lease for 14 years from Whitsunday 1845, at a rent of £306. There were conditions in the rules and regulations of letting the whole farms on the estate, and the missives of lease between them bore special reference to these rules and conditions. The eighth article of these conditions set forth,

"That no tenant, or other person on the estate, shall be at liberty to burn muir or heath on any part thereof, without first intimating his intention to the proprietor, who shall cause his forester to examine the ground, and to determine whether the thing is to be done or not. Each tenant will be answerable for any wood or muir burning on any part of his farm."

The eighteenth article of these rules had reference also to the same subject, and was to the effect, that "the heather is to be burned on the farms of Knocky and Foirbeg in the same manner as you (defender) are bound to burn it on the estate of Lord Lovat-that is to say, one-tenth part to be burnt in each year, so as to go over the farm in ten years."

Disputes arose about the extent to which the defender was entitled to burn the muir or heather on his farm each season, under the agreement of parties. This led