usual and prestable, and engage to contribute to the funds of the Dec. 20. 1851. Faculty along with the other members." Faculty of It was farther set forth that the narrative of the charter was Procurators in Glasgow v. correct in point of fact, and various minutes, articles, regulations, Douglas, Hill, and bye-laws contained in the Faculty's books, were pleaded, as &c. shewing the legal status and exclusive rights of the body. The complainers therefore maintained, inter alia, that they were entitled to be protected against the acts and proceedings of the respondents, as illegally invading and infringing their exclusive rights and privileges; and that the Sheriff of Lanarkshire had exceeded his powers, in disregarding the same. The respondents, by their answers, admitted the charter, but they denied the alleged usage and practice before or under it, and that the complainers had any exclusive rights and privileges in reference thereto. They therefore pleaded, inter alia, that the complainers had no title to challenge their admission by the Sheriff; that in so admitting them the Sheriff acted in the due and competent exercise of his powers; and that the charter, so far as it might be construed to import a deprivation or limitation of the Sheriff's right to admit persons otherwise duly qualified to practise in his court, is invalid and inoperative. They farther maintained that the Crown in 1796 had no power to admit practitioners in the Sheriff-Court of Glasgow, and that the charter can receive effect only in so far as it is consistent with, and does not prejudice or interfere with pre-existing rights and powers. The Lord Ordinary, (Cowan,) in respect of its peculiar nature, reported the cause to the Lords of the First Division of the Court for their decision. Neaves and the Dean of Faculty for suspenders. The charter did nothing but confirm and establish what was in existence before. This is the first time that the Sheriff of Lanarkshire has exercised the power of admitting practitioners of his own authority. The charter was given effect to in the case of Dinning, Hume's Cases, p. 156; see also Macandrew, 11 Shaw, 806. G. Young and Inglis for the respondents. Neither in the case of Dinning, nor in Macandrew, was the Sheriff involved at all. But he is so here. Had the Sheriff the power under the Act of Sederunt to admit the respondents? Previous to the charter the Sheriff had the right to admit any body he liked. When did he lose this power? The suspenders, in fact, ask to interdict the Sheriff from exercising his office of Sheriff. All the Sheriffs in Scotland NO. VIII. VOL. I. Dec. 20. 1851. have the right in question, but it is said the Sheriff of Lanarkshire Faculty of Douglas, Hill, &c. has it not. This day the case was advised. The LORD PRESIDENT did not concur with the Sheriff in the propriety of the course he had adopted. Dinning's case was followed out by an action of reduction and declarator, from the conclusions of which the Court assoilzied the defender; and the whole train of judicial procedure, from 1817 down to the present case, has been such as recognised the rights and interests of the procurators of Glasgow in the way and manner that they contend for. It must have been evident to the Sheriff that there is a status which this Society of Procurators are in the enjoyment of, and which cannot be disposed of, or inverted, in such a summary manner. He was not satisfied that this sort of process by suspension is the best way of settling a question of this nature. It is quite clear, on the contrary, that before the long course of judicial procedure that he had alluded to can be inverted, and before the Sheriff can, by his own fiat, deprive the Faculty of Procurators of their exclusive privileges, and establish a new code of regulations, a process of declarator is the proper course. Let them in such an action, if they would, establish the point that, independently altogether of the Faculty of Procurators, the Sheriff is entitled to admit them. If, in such an action, that be declared, then let obedience be given to it; but he had no conception of the propriety of any court whatever proceeding at once to invert every thing, and to admit A, B, and C, irrespective altogether of the rights of other parties. He was, therefore, of opinion that the interdict must be rendered perpetual. LORD FULLERTON concurred. The Sheriff remarked that he had adopted the course he had pursued in this case simply to put the matter in shape; but he would have put it into quite as good a shape for decision, if he had decided against the claim of these gentlemen for admission as he has decided in favour of it. He expected in this case a repetition of the arguments that had been advanced in the case of Dinning; namely, that the charter was an undue exercise of the power of the Crown; but in the present case the argument has been directed not to the illegality, but to the legality of the charter,-but with this proviso, that it confers no exclusive privileges on the body of procurators. The words of the charter are perfectly explicit, and the right of practising is identified exclusively with that of being a member of the Faculty of Procurators. He was of opinion that, to try the case, it would Dec 20. 1851. have been distinctly necessary for the respondents to have brought an action of declarator. Faculty of Procurators in LORD CUNINGHAME. There can be no doubt of the general Glasgow v. Douglas, Hill, powers of the judges of local courts to take cognizance of, and to &c. ascertain, the qualifications and fitness of the agents proposing to practise in their courts; but the right of preparing instructions for candidates for admission has been given to other bodies. This is clearly established by the Acts of Sederunt relative to the admission of members of inferior courts. The Act of Sederunt, 12th November 1825, in the regulations which it enacts for the admission of procurators before the Inferior Court, contains the following most important qualification, "without prejudice of the legal rights of chartered bodies." Under these words, all the rights and privileges of chartered bodies are reserved entire, and cannot be disregarded by any judge ordinary without special cause shewn. None is offered to be proved in the present instance. There can be little doubt that the Faculty of Procurators of Glasgow is one of the chartered bodies referred to in the Act of Sederunt. Therefore, as the case stood, the regulations of the Sheriff must be suspended in hoc statu. The parties, if they choose, may bring an action of declarator and reduction, as was done in the case of Macandrew, but, as the case at present stands, the interdict must be sustained. LORD IVORY was of the same opinion as the Lord President. It seemed to him, from the outset, that the question fell to be considered as one of possessory interdict. There is no question of declarator no question as to whether the regulations are ill or well enacted. The charter continued to be recognised, uninterruptedly, till the case of Dinning occurred, when the Court sustained the exclusive privileges of this Faculty, and the original ground of possession remained intact. Then comes the Act of Sederunt of 1825. He did not say that this Act conferred, or could confer, rights that did not previously exist; but it is to be regarded as a solemn recognition, by that Court, that the rights of the chartered bodies were not to be interfered with. While there is a case, on the one hand, of a continued and uninterrupted course of the possession of exclusive privileges, and of a status, for nearly half a century under a charter so old, what is there on the other hand? Has the Sheriff asserted any right in himself, because the assertion of a right in himself was implied in what had now been done? On the contrary, he has hitherto given obedience Douglas, Hill, &c. Dec. 20. 1851. to the usual practice until this case arose, when he took leave, all at once, by an act of most extraordinary authority, to infringe Faculty of Procurators in the existing state of possession, and to admit, in a way that had Glasgow v. never before been attempted, a procurator to practise in his court to the infringement of the exclusive privileges hitherto possessed by the Faculty of Procurators in Glasgow. When the case comes before the Court in a new shape. when it comes before them not as to the legality of the exercise of the right, but as to the charter not giving exclusive privileges at all, it would be considered in a manner different from what they had heretofore considered it. He was not satisfied that this is a sound construction of the charter. It was a construction, no doubt, not negatived in the case of Dinning, but which derived no support from the case of Macandrew; it was a novelty, and he was jealous of all novel readings of things that had been so long familiar to them. No. 108. Dec. 20. 1851. Cuthbertson Young. The COURT pronounced an interlocutor, by which they suspended the letters simpliciter, and declared the interdict perpetual. Campbell and Smith, S.S.C., Agents for Suspenders. SECOND DIVISION. CUTHBERTSON AND OTHERS v. YOUNG. Right of way-Public terminus-Issue-Record.-In a trial of a public right of way, it is sufficient to prove that the public, for 40 years prior to the period when the exercise of the right was temporarily stopped, asserted and enjoyed the right; and it is not necessary to shew that the land beyond the defender's estate, through which the way claimed goes, is other than private property, and that the point to which it extends is a public terminus. Observed that the issue is alone to be looked to, and it is incompetent to go into the record or previous interlocutors in the cause, in order to explain the issue. This was a declarator of a public right of way through the defender's property of Colinswell; in which the following issue was and Others v. sent to trial" Whether, 'for forty years and upwards, prior to the year 1827, or for time immemorial, there existed a public right of way for foot-passengers, from the Kirktown of Burntisland, and harbour and royal burgh of Burntisland, or one or more of them, leading westwards, along, or upon the margin of the sea-beach, through the defender's lands, to the western extremity thereof, and thence proceeding to Starleyburn port and har bour, and to the port and harbour, and old and new villages of Dec. 20. 1851. Aberdour, or to one or more of them?" Cuthbertson The following sketch will shew the path along which the right and Others v. of way was claimed, and its relation in point of position to the Young. localities alluded to: The line from A to B indicates the pathway through the lands of Colinswell, the defender's property. B to C shews the continuation of it passing through the adjoining lands of the Carron Company; and from C it passes westwards to Starleyburn harbour; and thence, through the lands belonging to Lord Morton, towards Aberdour. The trial took place at Edinburgh on the 6th and 7th days of November 1851, before the Lord Justice-Clerk and a Jury, when a verdict was returned in favour of the pursuers. In charging the Jury his Lordship gave certain directions in point of law, to which the counsel for the defender excepted, in so far as his Lordship directed the Jury: 1. That the pursuers' case, under the words of the issue, did not render it necessary for them to prove a right of foot-path through the grounds or policies of Lord Morton, to the port and harbour, or the old or new villages of Aberdour. 2. That it was sufficient if a public right of way should be established to Starleyburn. 3. That to support such public right of way, it was not necessary that Starleyburn port and harbour should have existed for forty years prior to 1847; and that the fact of that port and harbour being the private property of Lord Morton, would be no answer to the pursuers' claim of a right of way, if proved in point of fact. 4. That the right of way claimed would be completely esta |