JUSTICE-CLERK said that in this, which was one of the first cases Nov. 13. and under the new act that had come before the Court, he observed 14. 1851. that the revised Condescendence was an exact transcript of the Chalmers v. Condescendence annexed to the Summons, with no other addition Chalmers, &c. than a statement to the effect that the trust-deed was read in presence of the relations. This, he was sure, was not according to the spirit of the new act, and might with propriety affect the question of expenses.

FIRST DIVISION.

No. 15.

November 15. 1851.

ROBERT and JOHN BROWN v. JOSEPH DOCTOR.

Proof-Commission-Competency-Where the Court had remitted to an Advocate "to inquire into and report on the true state of the facts" in the case, his report is not conclusive, but the Court must itself consider and decide on the proof as led.

In this case, which was a competition between assignees and an Nov. 13. 1851. arrester in a multiplepoinding originally brought in the Sheriff- Brown v Court of Forfarshire, the Sheriff preferred the claim of the assig- Doctor. nees. The arrester advocated, and the Lord Ordinary (Robertson), after a debate, ordered the assignees "to lodge a minute, specifying distinctly whether they entered upon the execution of the contract" for paving a street, called Trade's Lane, Dundee, "and performed any part of the work at their own expense," on which facts the validity of their claim depended. The assignees lodged a minute to that effect, to which the arrester put in answers denying the statements in the minute. On this the Lord Ordinary, without farther investigation, altered the Sheriff's interlocutor, and preferred the claim of the arrester.

The assignees reclaimed, and on 29th May 1850, the Court recalled the interlocutor of the Lord Ordinary in hoc statu, and, before answer, "remit to Mr W. H. Murray, advocate, to inquire into and report the true state of the facts, which he may consider material for the decision of the case, with power to call for production of such documents, and to examine such witnesses as he may think requisite."

A report was accordingly prepared by Mr Murray, containing a full statement of the evidence on both sides, and the conclusions at which he had arrived.

Nov. 13. 1851.

Brown v.
Doctor.

The case was put out to-day for advising.

Shand and Inglis for the Reclaimers (the assignees), now submitted that as the report was in favour of the assignees, they ought to be preferred to the fund in medio.

LORD FULLERTON. Did the other party consent to this remit to Mr Murray?

Solicitor-General (with whom Macknight). Certainly not, and we will contend on the whole proof that the reporter's views are

erroneous.

LORD PRESIdent. When the case was formerly before us, we thought that a trial by jury was quite unsuitable in the circumstances, and therefore remitted to a member of the Bar to investigate the facts, without ascertaining which we felt we were not in a situation to decide the case.

LORD FULLERTON. I fear we cannot delegate our authority as judges, but must have the whole evidence before us, and make up our own minds upon it as we best may.

The Respondents were accordingly ordered to print the proof which had been led in the case.

L. M. Macara, W.S., Agent for Reclaimers.
James Macknight, W.S., Agent for Respondent.

No. 16.

FIRST DIVISION.

November 15. 1851.

HOOK v. HOOK.

Hook v. Hook.

Proof-Circumduction.-Where in a proof on commission, appeals had been taken, held incompetent to circumduce the term till the objections were disposed of.

Nov. 15. 1851. IN the course of a proof on commission, a great many appeals were taken on both sides, all of which were reserved for after consideration. Before these were discussed, the Lord Ordinary (Robertson,) at the pursuer's instance, pronounced an interlocutor of circumduction, against which the defender now reclaimed.

Hook. Hook.

Neaves, with whom Monro for reclaimer. This is an irregula- Nov. 15. 1851. rity. We are ready to discuss these appeals, and see how far they are good or bad. He may not need any further allowance of proof; but in the present stage of the proceedings, it is premature to grant circumduction.

Crawfurd, with whom P. Fraser for respondent. The effect of the interlocutor is merely to prevent the defender protracting farther a very lengthened litigation. We are ready to discuss the appeals. The proof may afterwards be reopened.

THE COURT held that it was not competent to pronounce interlocutor of circumduction before the appeals were discussed. They therefore recalled the interlocutor in hoc statu; and remitted to the Lord Ordinary to dispose of the objections.

Murray and Beith, W.S., Agents for Pursuer.
William Alexander, W.S., Agent for Defender.

No. 17.

FIRST DIVISION.

November 15, 1851.

JOHNSON and COMPANY v. LEES.

Interlocutor-Commission to take Oath-Bill Chamber Practice.

LEES charged JOHNSON and Company for payment of a bill. Nov. 15. 185 They suspended the charge on the ground of non-onerosity, and Johnson, &c, referred to the charger's oath. The Lord Ordinary (Rutherfurd,) v. Lees. on 7th October 1851, pronounced an interlocutor, in which he "sustains the reference made to the charger's oath, ordains him to depone, and grants commission to

to take his deposition and to report quam primum," &c., the interlocutor being thus blank as to the name of the commissioner. The charger's agent received from the Bill Chamber what was called an "attested copy" of the above interlocutor, in which attested copy, the blank left in the original for the name of the commissioners, filled up with the words, "the Judge Ordinary of the bounds;" the blank in the original interlocutor still remaining unfilled up. Acting in this warrant, a diet was fixed, and th charger's oath taken by the Sheriff-substitute of Fife. On th

Nov. 15. 1851. commission being reported, the Lord Ordinary (Medwyn,) in respect the oath was negative, refused the note; and a certificate of refusal having been obtained by the charger, he proceeded to enforce the diligence.

Johnson, &c., v. Lees.

Against this last interlocutor, the suspender reclaimed, on the ground that there was no warrant from the Lord Ordinary to the Sheriff-substitute of Fife to take the deposition of the charger, and that the deposition was, therefore, void and inept.

At the calling to day, Pattison, appeared for the reclaimer, and W. Peddie for the respondent.

THE COURT were unanimously of opinion, that the irregularity was fatal to the subsequent procedure. They therefore recalled the interlocutor, refusing the note of suspension.

James Bell, S.S.C., Reclaimer's Agent.
Andrew Fyfe, S.S.C., Respondent's Agent.

No. 18.

FIRST DIVISION.

November 18. 1851.

Blaikie, &c. v. Aberdeen Railway Co.

BLAIKIE BROTHERS v. ABERDEEN RAILWAY COMPANY.

Contract-Railway Furnishings-Issue-Companies' Clauses Act-Held in construction of this act, that although it is declared that a director shall not enter into a contract with the railway company, such a contract is not therefore void, but may be enforced, and the issue to try the action may be general as to the time of entering into the contract-e. g. “in the course of the year 1846."

Nov. 18. 1851. This was an action for enforcing implement of a contract, entered into on 6th February 1846, between the Aberdeen Railway Company and the Messrs Blaikie, Brothers, merchants in Aberdeen. The contract libelled on was for the delivery by the Messrs Blaikie of a certain number of chairs for the permanent road of the railway. Before any of the chairs had been furnished, on 4th June 1846 the Messrs Blaikie were requested by Mr Gibb, the Company's engineer, in executing the contract, to adopt Ransome and May's patent mode of casting the chairs, to which the Messrs

Blaikie consented. The pursuers allege that they have imple- Nov. 18. 1851. mented the contract, to the extent of about two-thirds, but that

the railway company refuse to receive delivery of the remaining. Aberdeen Railway Co. quantity contracted for, or to pay the price, being at the rate of £8, 10s. per ton. This action has therefore been raised by the Messrs Blaikie to enforce full implement of the contract.

When the contract was first entered into on 6th February, Provost Blaikie, one of the partners of Blaikie, Brothers, was also one of the railway directors and chairman of the company. He resigned office as director, and consequently of chairman, on the 25th of same month. The contract was entered into on behalf of the railway company by Mr Gibb, their engineer.

The railway company pleaded in defence, that Mr Gibb had no power or authority to enter into the contract on their behalf, and that even if he had, any such contract was, by the Companies' Clauses Act, §§ 88 and 89, illegal, and could not be enforced, and that, therefore, the present action is groundless.

The record having been closed, the Lord Ordinary (Ivory) appointed the parties to prepare and lodge issues in terms of the statute, which they did, the pursuers simply putting in issue the contract as having been entered into, " in the course of the year 1846." The counter issue, for the defender, proceeded on the view "whether, in the month of January and thereafter, till on or about the 25th February 1846," &c., and put in issue the alleged fact as to Thomas Blaikie, one of the Blaikie, Brothers, being at that date a director of the Aberdeen Railway Company, thereby directly raising the question as to the validity of the contract.

The issues being lodged in process, the Lord Ordinary, in respect the parties had not agreed to settle said issues, of consent, in terms of the statute, and that it seemed to him premature to dispose of the legal question specially raised by the defenders in their plea in law on the Companies' Clauses Act, so long as the ultimate form in which the issues might be cast was uncertain, made avizandum with the cause to the First Division of the Court.

In this state of the case the question came to be, was it sufficiently precise to put in issue, as the pursuer proposed, that the contract was entered into "in the course of the year 1846"? or was it necessary to go into the legal question under the Companies Clauses Act as proposed to be raised by the defenders' counter issue.