an exclusion of its jurisdiction was not to be presumed. The provision that no judgement or conviction should be removeable by certiorari into any court whatsoever, had an exclusive relation to English law and practice. The forms of the English process, the Court were not called on to enquire into, nor supposed to know. These forms were at any rate so dissimilar in the two kingdoms, that from the practice of the one no rule could be drawn for the guidance of the other.

The Court" Advocated, altered, and found expences due."

BURGH-ROYAL *.-EXCLUSIVE PRIVILEGE.—A coachmaker may make iron-work for carriages within burgh, though not a member of the Incorporation of Hammermen.

JOHN CARFRAE was a coachmaker in the Canongate of Edinburgh.

In order to execute the iron work of the carriages which he sold, he kept a smithy, and employed a number of men in it working on iron. Neither himself nor his men were members of the Corporation of Hammermen of Canongate. Robert Douglas deacon, and John Ross boxmaster of the corporation, presented a petition against him to the sheriff of Edinburghshire, in name of the corporation, praying to have him compelled to enter into it. The sheriff's interlocutor was, "In respect that "it is not alleged that Mr Carfrae carries on the smith work for any "other purpose than coachmaking, Finds that the petitioners cannot "compel him to enter."

The pursuers presented a bill of abvocation. Lord Ordinary on the bills was, on the bills was, "Repels the

The interlocutor of the reasons of advocation :

"Remits

* Lord Kaimes's title Burgh-Royal does not apply well here, for the Canongate is a burgh of barony; but there is no other in the Dictionary for cases of this sort.

"Remits the cause simpliciter to the sheriff, and decerns. then came before the Inner-house by petition and answers.

Argument for the pursuers.

99

The cause

The Corporation of Hammermen has beyond doubt the exclusive right of exercising the trade of a smith within the Canongate, and of compelling all who exercise that trade to enter into that corporation. The respondent has exercised that trade, for he has set up a smithy, and employed a number of men to work in iron after the manner of smiths in the strictest sense of the word by fire, hammer, &c.; and to manufacture nails, bolts, screws, locks, keys, &c. the most ordinary and undoubted produce of the smith trade; therefore he is bound to enter this Incorporation by the constitution of their privilege.

The circumstance that the respondent does not sell this smithy-work in a separate state, but only when incorporated with other materials into a complete article, is no ground of exemption from this obligation. If it were, the privilege of the pursuers would be of little avail, for very few articles of smith-work are sold in a separate state, and still fewer sold in that state from any necessity.

Nor is it any ground of exemption, that the respondent is only a carriage smith. The inevitable progress of the division of labour has separated the general trade of a smith into various branches, gunsmiths, locksmiths, tinsmiths, &c. ; but all of these have uniformly been included in the Corporation of Hammermen as smiths. The trade of a carriage smith is one branch of the general trade of a smith just as much as any other, and it includes a larger portion of the whole operations included under that name than most of these other branches. Those who exercise this branch, must therefore enter the Incorporation of Hammermen, just as much as those exercising any other. This is not the only trade that has thus been divided. All ancient trades have undergone the same change; and if the division had been allowed to exempt the branches from the obligation of entering into the several incorporations, there would have long ago been an end of all such incorporations.

But this has never been held a legal ground of exemption; on the contrary, in the case of the Wrights of Haddington, 1771, (Dict. 3d vol. p. 106. Burgh Royal) it was found that wheel-wrights must enter into the Incorporation of Wrights, which is a similar case to the present.

This part of the trade is said to be new, because coaches have been newly introduced; but it is only a new application of the old trade of a smith, which has taken the place in all probability of some former application of it. Almost all productions of this trade have changed their nature since it was incorporated, but that has never been supposed to extinguish the incorporation privileges. Watches and plated work are new inventions, yet the makers of these enter into the Incorporation of Hammermen*. Farther, though the respondent may profess his intention to confine

The case of Goodfellow, 4th July 1766, is an instance of the contrary being found lawful..

confine his smith-shop to the production of iron-work for carriages, yet the pursuers can have no security that he will do so. The same forge and workmen may produce all kinds of smith work, or he may sell separately the articles he professes to make for carriages, without the possibility of controul *.

Argument for the defender.

Corporations have no right, upon mere similitude, to bring a trade within their charter. In the progression of improvements, new arts must be discovered, and manufactures, never in contemplation of the creators of their privileges, brought into common use. The exercise of these new arts, if bona fide out of the ordinary range of the old incorporation, is not to be held within its privileges merely because in some part of the operation the aid is required of that kind of labour and skill, or of those materials which are described in the old charter of the craft.

Such arts are quite distinct from mere parts or ramifications of the old incorporated trade; and accordingly it has been often found that they do not fall under the privilege of any incorporation. This was found as to mantuamaking, claimed as a branch of their art by the Corporation of Tailors.-Tailors of Perth against Mantuamakers, 4th August 1756; as to the making of hose claimed by the same incorporation in the case of White against the Tailors of Glasgow, 23d November 1762; as to the weaving of cotton claimed by the Incorporation of Weavers, 6th March 1804, Weavers of Lanark against Porteous.

In the present case, the art of making iron-work for coaches is a new art. It was no part of the old trade of the Hammermen. For this sort of iron-work is of no use but for coaches; and was therefore unknown when this corporation was created. As the defender, therefore, confines himself to this new art, he is not bound to enter with the Incorporation of Hammermen.

2dly, This manufacture of iron is merely accessory to the manufacture of coaches, which it will not be pretended is within the privilege of the Hammermen, and such accessory operations cannot subject the manufacturers of complex articles to enter into corporations, though they do form part of an incorporated trade. If they did, such complex articles could not be made at all, for they often include in the manufacture operations forming part of a great variety of trades that are incorporated. But it was decided they did not in the cases of the Maltmen of Glasgow, 22d February 1750, Falconer; the Coopers of Perth, 8th July 1752; the Cordiners of Glasgow, 3d December 1756, Kaimes; Wrights of Glasgow against Crosie, 8th March 1765.

3dly, The defender is a member of guild; and therefore he may import springs and other articles of iron-work for the use of his manufacture of coaches,

M

* See 29th January 1788, Ireland against Weavers of Glasgow, in which silk weaving, a new branch of weaving, was found to be included in the incorporated weaver craft. But the authority of this decision was doubted by the Bench in the case of the Weavers of Lanark, 6th March 1804.

coaches, and if he may import them, it follows that he may manufacture them by his own servants for this purpose. See cases of the Coopers of Perth, supra, and Cordiners of Glasgow, supra, reported by Lord

Kaimes.

The Court unanimously " Adhered to the interlocutor of the Lord Ordinary."

JURISDICTION.-An action of scandal may competently originate before the Sheriff.

DAV

AVID CRICHTON raised an action against Michael Forrest before the Sheriff of Forfarshire, concluding for damages on account of scandal and defamation.

Forrest objected to the jurisdiction of the Sheriff in such an action. But the Sheriff-depute repelled the objection, and sustained the process.

Whereupon Forrest advocated, and pleaded, that in actions for scandal, the Commissaries possessed an exclusive jurisdiction. Ersk. lib. 1. tit. 5. $30.-Kilk. No. 7. voce Reparation.

Crichton answered.—An action for verbal injury or scandal may originate either before the Supreme Court, the Sheriff, the Justices of the Peace, or the Magistrates of a burgh; and if there are any questions of slander, wherein the jurisdiction of the Consistorial Court is exclusive, it is restricted to those in which a palenode or ecclesiastical censure is required. But that actions for verbal injury, by which fame is attacked, may commence before the Judge Ordinary, is now beyond controversy. Bank.. lib. 1. tit. 10. § 24.

Accordingly

Accordingly an action for a verbal injury was sustained before the Supreme Court in the first instance, 4th March 1755, Affleck against Gordon, Select Dec. No. 230.

Such action has also been sustained before the Justices of Peace, 4th Feb. 1752, Bell against Dundas;-and likewise before the Bailies of Edinburgh, 19th June 1750, Hamilton, No. 7. Kilk. voce Reparation. The Lord Ordinary reported the case to the Court.

And the Court unanimously "Remitted to the Sheriff simpliciter."

WRIT.-Proof by the testimony of the instrumentary witnesses to a deed, that they did not see the granter subscribe, nor hear him acknowledge his subscription, is competent to be allowed before answer.

PET

ETER and CATHERINE SWANY, representatives of Patrick Swany merchant in Thurso, brought a reduction of a bond of caution, granted to the Bank of Scotland for Alexander Paterson bank agent at Thurso, and subscribed by the said Patrick Swany. The averment on which the pursuers founded was, that neither of the two instrumentary witnesses in the bond saw Patrick Swany subscribe, or heard him acknowledge his subscription; and of this they craved a proof by the testimony of these witnesses. The Lord Ordinary allowed the proof before answer; and, on a reclaiming petition and answers, the Court " ad"hered to this interlocutor."

The case of Franks against Franks, 9th July 1793, was considered by the Court as fixing the law, that such evidence was competent, whether it might or might not be sufficient to establish the fact averred.