was observed, that a country man could not be exeemed though he sold trifles, and called himself a merchant. Their plea was overruled.

In the case of the town of Perth, (1st Feb. 1757, Dict. vol. iv. voce Public Police,) the question was, whether householders were exeemed, and their plea was overruled likewise, but it was not pretended that those who were not householders were liable.

In a similar question with the town of Paisley (11th January 1758, Trustees of Glasgow Turnpike, Fac. Col. and Dict. supra) the Court pronounced an interlocutor, finding the whole inhabitants of the town of Paisley liable, reserving to any class of them who should think themselves aggrieved to apply for redress. It was thus determined, that although the mere residence in a royal burgh afforded no positive exemption, yet these were descriptions of persons on whom the burden could not be imposed.

This decision does not, any more than the former, affect the suspenders. The term inhabitants, like that of labouring men, is not a nomen juris to which a technical meaning is affixed. It is clear, however, that under it all the inhabitants of every rank and sex were not included. It was obviously intended to apply only to householders. This limitation indeed is necessarily connected with the institution of statute labour. For although, in those public burdens which are meant to have a general operation over the whole kingdom, the circumstance of living within the realm is sufficient to infer liability, yet in those which are of a local nature, it is only as an occupant of real property that an individual can be subjected. But none of the suspenders are householders, nor of that description which the Court had in view in using the term inhabitants.

But, farther, their peculiar legal character as apprentices, exempts the suspenders from such a public burden as that of statute labour. During the period of their indenture apprentices cease to be sui juris, and their time and industry are the property of their master, without whose direction they cannot be disposed of. Neither are apprentices considered as possessing any property arising from the application of that time and industry, which could be seized as a commutation for any public burden. Even the great duty of public defence, not to mention the obligation of enlistment, is suspended by apprenticeship, a fortiori, the duties connected with a local police must be incompatible with that character.

From England the system was borrowed, and the practice of that country ought to have authority. By 13th Geo. III. c. 78. § 35. apprentices are exempted from statute labour.

Argument of the chargers.

To ascertain the doubtful import of a public statute, the general practice which has ensued on it, and the interpretation which the general consent of the people has attached to it, cannot be disregarded. On this the observance of all law depends; by this they are silently abrogated and modified. It is therefore important to state, that by the uniform and immemorial practice of the county of Ross, and of the neighbouring counties, persons in the class of the suspenders have been subjected.

That the Justices have a discretionary power is clear from the statute 1617, c. 8. whereby " the Justices must give orders as they shall think "most convenient, and with least grief to the subjects for mending," &c.

and the statutes subsequently passed arose out of this, and must be taken in connection with it. The Stat. 1661, c. 38. confers the same powers; and under this, as well as the former, the Justices act under a high responsibility.

That the class of persons designated by the immediately subsequent statute 1669, c. 38. as the subjects of this tax, was not confined to that of those engaged in predial labour, is established both by the practice of counties and the decisions of Court. An exemption in favour of the inhabitants of towns, and of manufacturers and artificers, is not contained in that or any other act. Accordingly, in the first case which occurred, (21st July 1750, Kilk. p. 253.) weavers, masons, wrights, coopers, &c. in the town of Kirkcaldy, were found liable, and the same argument was maintained as in this case.-Falc. No. 153. p. 179. vol. ii.

A few years afterwards a resistance on the part of the inhabitants of the town of Perth to submit to this burden, met with the like fate.(1st Feb. 1757. supra.)

The same was decided in a question with the town of Paisley, 11th January 1758, Trustees of Glasgow Turnpike.-Supra.

From this consistent train of decisions, it is beyond controversy settled, that these statutes are not restricted to persons employed in predial labour, but equally include the inhabitants of royal burghs, artificers and tradesmen, as well as householders, who may be called out at the discretion of the Justices.

With as little justice can an exemption on the ground of apprenticeship be demanded. The statute makes no exception of apprentices. In every contract the parties are understood to have been aware of the public law, and of its relation to the obligations which they respectively incurred. The public statute now under consideration had an existence previous to the indentures of the suspenders, and had inferred an obligation paramount to any which they could incur. The master with whom they contracted must be understood to have stipulated for their labour, under a deduction of what might be demanded by this or any other public law.

That the obligation of enlistment is suspended by apprenticeship depends on different principles, and has no relevant application to the present question. The principle of decision there is, that no man after having undertaken one obligation, can voluntarily enter into a second, by which the first may be destroyed or dissolved. On the same principle, a hired servant cannot dissolve his obligation of service by enlistment, 29th June 1742, Wright against Lumsdens.-19th January 1799, Clark against Murchieson.-But a hired servant is undoubtedly liable to performance of statute labour.

The law of England differs from that of Scotland on this subject, and cannot afford any ground for analogical reasoning. By the act of Parliament quoted by the suspenders, both apprentices and servants are exempted, whereas in Scotland servants are notoriously liable. But these exemptions arise from special enactments. The argument of the chargers, therefore, that in the silence of enactment, exemption cannot be presumed, is strengthened.

The interlocutor of the Court was, "Adhere to the interlocutors re"claimed against."

Lord Ordinary, Polkemmet.

Act. Tho. Thomson. Alt. David Monypenny. Agents, Joseph Gordon, W. S. and Wm. Mackenzie, W. S.

2

Walker, Clerk.

J. W.

No.

NO. XII.

28th November 1807.

ADAM GRIEVE,

AGAINST

LIEUTENANT-COLONEL CUNNINGHAM.

PROCESS. Part of a decrce giving expences to a pursuer may be carried to execution by him, while the rest of the decree is under appeal at his

instance.

V

ARIOUS actions depended both in the Court of Session and Housc of Lords, relative to the farm of Barlaugh, in which Colonel Cunningham, and William and Adam Grieve were parties. The procedure in these actions terminated in several interlocutors. By these the assignation of a tack was sustained in favour of William Grieve, Colonel Cunningham was assoilzied from an action of declarator at the instance of Adam Grieve, and at the sametime the Colonel and William Grieve, the successful parties, (a thing rather unusual) were found liable jointly and severally to Adam Grieve, the unsuccessful party, in the sum of L.216. 16s. 51d. as expences of process and dues of extract. For this sum Adam Grieve charged Colonel Cunningham, who presented a bill of suspension on this ground, that he was not bound to pay this sum in implement of one part of the decree, unless the party receiving it would promise to submit to the other part of it, and not carry it to appeal. This bill was refused. Colonel Cunningham reclaimed.

Argument for the petitioner.

There is no principle more universally admitted in all systems of law, than this, "Approbans non reprobat;" see vol. vii. Bacon, p. 445.

"No

66 man, says Lord Stair," can approve and disprove the same indivi"dual thing." But this applies with full and even peculiar force to a decree, which, as it is drawn up with more pains than a private deed, must have its different parts more nicely adjusted to, and more fully dependant upon each other. It is impossible, therefore, that he who has enforced one part of a decree which was in his favour, can be allowed to challenge it quoad ultra, because the part he is attempting to overturn, may have been the inseparable condition of that which he has carried into execution. If this were allowed (not to mention less general instances) in every case of decree on a mutual contract, one party might obtain implement of it, in so far as he was creditor, and then appeal against it in so far as he was debtor, though this last was the necessary counterpart of the other. The suspensive effect of an appeal is of itself an evil of sufficient magnitude, but this would be encreased tenfold, if it were left entirely to the appellant's discretion what part was to be suspended, and what executed. A cross appeal is no sufficient cure

for

for this evil. It is too late to enter a cross appeal when the appeal comes to be made, for the part that was liable to cross appeal is executed before the appeal is made. It would be necessary, therefore, in all cases where part of a decree is in favour of an individual, and part against him, that he should enter a cross appeal merely as a precautionary measure, however well satisfied he was with the decree on the whole. But our law never can require a party to appeal against a judgment with which he is well satisfied, merely because his adversary chuses to appeal. This absurdity is prevented by the maxim of approbans non reprobat.

This maxim is just another expression of the rule of our law, that taking implement of one part of a decree is homologation of the rest, which is established by a train of decisions; 31st July 1560, Laird of Ruthven, which holds even taking instruments to be homologation ;— 23d February 1566, Montgomery against Ninian Semple, Balfour, p. 416;-Duke and Duchess of Monmouth against Earl of Tweedale, Dict. vol. i. p. 377. from which the same rule may be inferred. The decrees to which these cases relate are decrees-arbitral, but that can make no difference; and the following cases are exactly in point even in this particular, Brisbane against Harvey, 26th February 1724, Edgar ;— Hepburn against Hepburn, 1st December 1736, Clerk Home; and, Wauchope against Hamilton, 1st December 1711, Forbes; where the rule was recognized though the decision went on a specialty. Primrose against Duie, 21st February 1662, Stair; is to the same effect, though incorrectly abridged in the Dictionary.

But if the receiving implement of a part of a decree, binds the party to acquiesce in the rest, there is no reason why he should not do it in proper form by a regular written deed at the time when he receives implement? And this is necessary, for he cannot otherwise be with certainty-prevented from entering the appeal; and if he should enter it, the other party could have no advantage from that part of the judgment which was favourable to him, till the appeal was decided, even supposing the objection of homologation to be sustained in the House of Lords. The ordinary form of the discharge of a decree is to be found in the Juridical Styles. The pursuer granting that form of a discharge, it is evident, acquiesces in the decree in so far as it is against himself. He discharges the action in toto, not merely grants a receipt to account, and never could afterwards ask more in that action by appeal. Why then should not the charger here grant a similar discharge of this action?

Some of the Judges were moved by the arguments of the petitioner, and observed that if the respondent was successful in the House of Lords, the award of expences would not stand, so that it would be unjust to allow it to be executed now, unless that appeal was to be relinquished. That this was not a usual case of expences, being almost the only one where expences had been given to the unsuccessful party, and that the award of expences formed an inseparable part of the decree.

On the other side it was observed, that this award of expences was just in the situation of an interim decree, which is given every day. That, particularly, it is quite common to give a party his expences, and at the same time find that he is entitled to go on with his process. That this award of expences was no condition or inseparable part of the decree,

but

but might justly be enforced, though the rest should be appealed or even

reversed.

The Court "Refused the petition."

Lord Ordinary, Glenlee. Act. Geo. Cranstoun. J. Smith, jun. W. S. Agent.

No. XIII.

M. Clerk.

HUTCHISON DUNBAR.

BILL OF EXCHANGE.-Noting a bill on the day of payment is good negotiation, though the protest be not extended till some days afterwards.

R

OBERT OGLE of London drew a bill for L.125 on Sinclair Wright of that city. It was indorsed by the drawer to Hutchison Dunbar of Edinburgh, who indorsed it to Brown and Company of Leeds. Brown and Company indorsed it to their bankers in London, Messrs Foster, Lubbocks, and Company. It became payable on the 3d of July 1807, that being the last day of grace; on that day it was presented for payment; and payment being refused, it was noted by William Armstead a notary in the usual way, ❝ 2, 6 W. A. 3d July 1805."

Thus noted, but without any regular instrument of protest, it was returned to Brown and Company who wrote immediately to Dunbar in these terms:

"The bill we received from you the 9th of May (say R. Ogle upon "Sinclair Wright, NO. 21. Whitehorse Lane, London, from the 30th "April 1805, at two months, amount L.125.) is returned to us for nonpayment, but, not being protested, bave returned it to our bankers to "have the needful done. When we receive it, shall send it to our friend "in Edinburgh, who will call upon you for payment."

Dunbar refused to pay the bill. Brown and Company gave him a charge for payment, which he suspended.

The suspender stated various defences, in particular that the bill had not been protested in due time, and that due notice of the dishonour was not given to him, since the letter of the chargers mentioned the bill not being protested, which authorised him to think that it was not negotiated, nor any recourse against him intended.

The Lord Ordinary "Sustained the reasons of suspension."

But on a reclaiming petition and answers, the Court were clear that the noting was sufficient negotiation, and that the letter, signifying only that

K

the