Argument for defender. Not necessary to be stated.

The Court were quite clear that the British Linen Company were not only entitled, but bound to plead compensation for the benefit of their agent, who could not be regarded as discounting for his own behoof, though he was liable by the conditions of his office for the loss on the bills he discounted.

The Court, therefore, "Adhered to the interlocutor of the Lord Or"dinary."

SERVICE. Decision that a general service as heir of line and heir-male is equivalent to a service as heir of provision, where it appears from the service that the party serving had both characters in him-reversed.

This case is already reported, 16th November 1802, which see.

ON

N appeal to the House of Lords, that Honourable House pronounced this judgment: "It is ordered, &c. that all the interlocutors complained of in the said appeal, so far as the same relate to "the lands and subjects contained in the charter of 1774, or in any "similar titles, be, and the same are hereby affirmed: And it is further "ordered, that the cause be remitted back to the Court of Session, to << review all the interlocutors as far as they respect the effect of the ser"vice of Earl David in 1776, with regard to the lands of Enoch and "Little Enoch, the lands of Portmark and Polmeadow, the tenements "of Maybole, and teinds conveyed by Crawford of Ardmillan, or any "other lands or subjects, the title to which is in dispute in this cause, "if any such there be, not ruled by the foresaid affirmance; and to "hear the parties again as to the effect of the said service as to the said "lands and teinds, and as to the right to the said lands and subjects, and "to do thereupon as to the Court shall seem meet.”

When

When the cause came back to the Court of Session, on a petition by Lord Cassillis, to have the judgment of the House of Lords carried into effect, memorials were ordered on the points remitted. The The argument in these, so far as it was different from that already stated, run chiefly on the extent of the remit. On advising these memorials, the interlocutor of Court was, (10th Feb. 1807,) "They find that Earl David's "general service in 1776 was not a service as heir of provision, to connect him with the settlement in 1748, or with any similar deed of provision or settlement, and consequently was not sufficient to carry "the subjects which were specially provided by any such deeds, and "were not contained in the charter 1774, or in any other title-deed or " charter of a similar nature: Find that this description applies to the "lands of Enoch and Little Enoch, the lands of Polmark and Polmeadow, the tenements of Maybole, and the teinds conveyed by Craw"ford of Ardmillan, and that they were not carried by the general ser"vice: Therefore sustains the reasons of reduction as to these subjects, "and, so far, alter their interlocutor of 16th November 1802, repel "the defences, and reduce, decern, and declare in terms of the sum66 mons. And to this interlocutor, on a reclaiming petition and answers, 24th Nov. 1807, the Court adhered.

PUBLIC ROUP.-Circumstances which constitute an irregularity in the manner of conducting a public roup.

THE

HE superiority of certain lands in the parish of Linlithgow, belonging to the poor of that parish, were exposed to public sale, in the town-house of Linlithgow, by the minister and kirk-session.

The articles of roup bore, that the said superiority, which amounted to L.175 of valued rent, "Should be exposed to public roup at the upset price of L.180 Sterling, during the running of a half hour sand-glass, "and the person offering the said sum, if no other shall appear, or the highest offerer at the outrunning of the glass, shall be preferred to the purchase. 2do, In the event of several offers being made, every offer after the first shall exceed the offer immediately preceding by twenty "shillings at least, and become bound for the sums offered in terms, and upon the conditions of these articles."

The clerk of the roup having read the articles, stated that although the articles bore that the subjects were to be exposed during the running of a half hour sand glass, yet as a sand glass was not at hand, and as a watch

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would

would measure the time with equal precision, the latter would be substituted, if the company had no objection. No objection was stated by those present, among whom was Mr Alexander Monypenny writer to the signet, and a watch was used.

The subjects were exposed, and the biddings continued till the price amounted to L.250 Sterling. At this time Burns was the highest offerer; but about three or four minutes before the half hour expired, Mr Alexander Monypenny entered the lists of competition. The bidding continued between these two parties, while the judge incessantly admonished them that the half hour was at the moment of expiry, and the offers succeeded each other with rapidity. Before Mr. Monypenny had finished bidding, and abandoned the competition, the half hour elapsed; and the petitioner, who was the highest offerer at the instant of its expiry, was declared by the judge to be the successful competitor, at the price of L.275 Sterling.

Thus no means were taken, by stopping the watch, to prolong the period, although competition had not ceased. Mr Monypenny protested against this procedure, and presented a bill of suspension and interdict, and the kirk-session raised a multiplepoinding, in which the two competitors were called. On the part of the kirk session, no objection to the regularity of the sale was stated.

The Lord Ordinary pronounced the following interlocutor (13th February 1807.): "Finds it to have been provided by the articles of roup, "that the superiority should be exposed at the upset price therein men❝tioned, during the running of a half hour sand glass, and the highest "offerer at the outrunning thereof should be preferred to the purchase: "Finds, that if such sand-glass had been used, it was competent for, and "indeed the duty of the judge of the roup, by laying the sand-glass on "its side, or making it run backwards to prevent it from running out so long as there appeared offerers bidding against each other: Finds that "in this case, as the judge of the roup, for want of a sand-glass, made use of his watch, he ought to have managed it in some such way as "the sand-glass might have been; but finds, as he did manage it, he "made the time to expire, while the two competitors Mr Burns and Mr ແ Monypenny were keenly bidding against each other, and the judge "declared Mr Burns to be the last and highest bidder, and so preferred "him to the purchase: Finds that this was occasioned by the judge's "misapprehension of what was his duty in such a case; therefore finds "that the proceedings at the roup were irregular, and cannot have "effect."

And the Lords (27th November 1807.) refused a reclaiming petition, without answers.

Lord Ordinary, Polkemmet. Act. Monypenny. Alt. John Fullerton.

J. W.

No.

No. XI.

November 27. 1807.

JOHN M'KAY, ALEXANDER MUNRO, and Others,

AGAINST

The JUSTICES OF PEACE in the County of Ross.

PUBLIC POLICE.---APPRENTICE.---Apprentices to artificers in a town are liable in the performance of statute labour upon the high roads.

ACKAY, Munro, and others, were apprentices to masons, shoe

Makers, and other artificers in the town of Tain, in the county

of Ross. In the month of February 1802, their names were reported as defaulters in performance of the statute labour of the preceding year; and a quorum of the Justices gave the following deliverance, (10th Feb. 1802.) "Having considered the written certificate and report, we do "hereby grant warrant to constables to poind, in terms of law, the "readiest goods and gear of the within named and designed persons "deficient in the statute labour, for payment of the sums annexed to "their respective names.

Of this threatened diligence the apprentices pursued a suspension, wherein the Lord Ordinary (Polkemmet) pronounced the following interlocutor, (21st May 1805.) " In respect that by our acts of Parliament "the Justices have a discretionary power as to the description of parties "to be called to perform statute work upon the roads, that no particu"lar exemption is by the said act given to apprentices, and that it has "been customary with other neighbouring counties, in similar circumstances as to roads with Ross-shire, for apprentices to be called out to "that work; therefore repels the reasons of suspension, finds the letters orderly proceeded, and decerns."

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The cause came by petition and answers before the Inner-house.

Argument for the suspenders.

The regulations which the Justices of this county may have been in the custom of observing, with regard to the imposition of the statute labour, must be disregarded, excepting in so far as they coincide with the acts of Parliament on the subject. Neither can the varying usage of neighbouring counties be of any authority in abrogating or modifying the public law. From the acts of Parliament alone, and the decisions of the Court, must the rule be derived. But the acts of Parliament introducing this public burden were not intended to apply to artificers and

mechanics.

Among the improvements in public police, which James VI. transferred from England to Scotland, was the institution of Justices of Peace; and with this institution came the first rude attempts towards a

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plan

plan for making and repairing the high-ways, by the general contribution of the labour of the district.

In the 1609, Justices of Peace were introduced; and by act 1617, c. 8. a set of instructions was issued to the Justices for repairing all high-ways to market-towns and seaports. From the existence and powers of heritable Sheriffs, from there being no accurate definition of the persons who were to be liable in this public burden, and no direction as to the mode in which the power of the Justices was to be exercised, these acts were attended with little success; neither does it appear that this measure was at that time enforced in a systematic manner.

By act 1669, c. 38. a set of instructions, substantially the same with the former, was again issued; but it would appear with no better

success.

For, in the act 1661, c. 16. the subject of repairing the high-ways and bridges appears, for the first time, to have received the deliberate attention of the legislature; and this may be regarded as the leading statute on this important matter. The statute, in its preamble, proceeds on the inefficacy of the former orders and instructions; and, after describing the persons to whom the enforcing of this branch of police shall be cominitted, enacts,---" Which persons, or any one of them, to whom "the particular portions of the saids high-ways shall be committed, are hereby authorised and strictly required, to call and convene all tenants "and cottars, and their servants, within the bounds," &c.

By this statute a precise description of persons is pointed out on whom this burden is imposed, viz. Tenants, cottars, and their servants. The act 1670, c. 9. neither extends nor limits this description, and its object is merely to enable the Justices to receive a pecuniary commutation from those who were liable by the previous act.

In interpreting these successive statutes, the more precise and accurate provisions of 1669, c. 16. must explain and modify the more vague and indefinite terms of its predecessors; and it is clear that the bona fide apprentices of tradesmen cannot be included under tenants, coltars, or their servants.

The only general statute on this subject is the 5th Geo. I. c. 30. by which the Justices are authorised to convene "the tenants, cottars, and other labouring men, within their respective bounds," &c. In fair and rational construction, however, the addition of "other labouring men,' when considered with relation to what precedes these words, must be understood to apply only to that class of country labourers who, without being strictly the servants of tenants, are habitually employed in the same sort of labour. The phrase " labouring men," is no doubt not nomen juris, or susceptible of exact legal definition, but it never has been held to apply to that class to which the suspenders belong.

The decisions of the Court do not throw much light on the subject, for they relate chiefly to disputes for exemption with the inhabitants of royal burghs.

Thus, in the case of Hamilton against Inhabitants of Kirkcaldy, 24th July 1750,---Kilk. p. 253.--Falc. No. 153. vol. ii.---the only question of importance was, Whether those who claimed exemptions were of characters that would exeem them if they lived in the country and it

was