dbund reafon, that the forger, when pxcuted, thould avail himself of the oron, if it was evident, as in this cafe, But he meant to take a benefit from the pery to the hurt of another. Pas. The defects here fuppofed, do confit in the forger's omitting to unterfeit what is neceffary for the creaon of an obligation, but only what is eceflary to prove that fuch obligation really exift. But it is by no means ing only to the want of the folemniBe required by law to render writs proative, that the notes of the British LiBen company cannot be confidered as obligatory, but alio to this material circumLance, that they have no power to issue uch notes; and that although they had power of iffuing them, they are not excuted in such a manner as to bind the mpany, even fuppofing the folemnities required by law were adhibited to them. -Which leads to the fecond branch. On the second branch: Pau. The notes iffued by the British Linen company are not conceived in a form obligatory by the law of Scotland. Thus, in the cafe, Arbuthnot against Scot, Jan. 29. 1708, a promiflory note not bolograph, was found null, and not probative, because of the want of the names and defignations of the writer and witpees. And the notes faid to be forged by the pannel are of the fame nature, and equally im probative, on account of their anting the ftatutory folemnities required in writings: they are therefore no better than an ufelefs or infignificant writing, the copying or forging of which could be no crime. Pan. It is believed, and the country feverely feels the truth of it, that too much money has of late years been given for notes of this kind: but because people are fometimes weak enough to advance money upon the faith of a single person, or of a company, without demanding legal fecurity, it will not from thence follow, that any fecurity which they are fatisfied with will be binding in law. The acts of parliament requiring witnesses to deeds that are not holograph, can only be repealed by exprefs ftatute, or by an inveterata confuetudo arifing, and establish ed by a variety of decifions: and it is fubmitted, if it would not be of much greater advantage to this country, to confirm the doctrine now pleaded by the pannel; by which the most effectual ftop would be put to that multiplicity of banks, and immensity of paper credit, which have no other tendency than to drain the country of fpecie, and, of confequence, muft in time be abfolutely deftructive of our commerce and manufactures. Prof. The act 80. parl. 1579, which introduced the inferting of witnesses in writings, for the better preventing of forgery, only refpects writings of importance. The words are, "That all contracts, obligations, reverfions, affignations and difcharges of reverfions, or eiks thereto, and generally all rights importing heritable title, or other bonds and obligations of great importance, fhall be," &c. The act 179. parl. 1592, requiring the writer to infert his name and defignation, and the act 5. parl. 1681, requiring the fubfcription and defigna tion of witneffes in the body of writs, Prof. It cannot be admitted, that pro- do, in the fame manner, only relate to mitory notes not holograph, are not ob-writs of importance, intended to be exeigatory by the law of Scotland. To nd them not obligatory, might bring rain upon many, as large fums ftand out this country upon no better fecurity. When trade was in its infancy, and the mercantile law little understood in the courts of this country, it is not furprifing that a fingle judgment of the court of fefion fhould have paffed, finding fuch a note not binding: but the extenfive fe of fuch notes fince the date of that decifion, and the continued use of holding them as obligatory in all civil courts, of which hundreds of inftances might be collected from the records, clearly in Brut the univerfal fenfe of the nation to be disapprobatory of the decision, and for the holding them as obligatory wriJags, cuted in a formal manner; but were never intended for the destroying or reftraining the use of more fimple writings, introduced out of favour to commerce, and the easier execution of other business, and which are called privileged writings. Thus, notwithstanding these statutes, bills were held to be obligatory; and by fubfequent acts, even the privilege of fummary diligence was given to them: and thus fubfcriptions to merchants accounts, letters in mercantile affairs, receipts for goods, difcharges to tenants by their matters, and other writings, in the execution of which the following out the ftatutory folemnities would have been troublefome, and an imbargo upon mer cantile tranfactions and other bufinefs, have have all been judged to be probative and obligatory, as may at once be discovered from the Dictionary of Decifions, tit. Privileged Writs. And it is notorious, that all fuch kind of writings are, by univerfal confent, held to be probative, though not holograph. Pan. None of thefe examples will a vail the prosecutors. Bills of exchange pafs from kingdom to kingdom; they cannot therefore admit of the folemnities required by the law of any particular ftate, and must be governed by the law and custom of nations. The fame obler vation will apply to other writings among merchants, which truly relate to mer cantile affairs; and the validity of difcharges by heritors to tenants though not holograph, seems to have been introduced by custom, in refpect of the ignorance of that class of people. But furely the notes of the British Linen company are of a different nature: they are not writings in re mercatoria; they have no currency out of this kingdom; they have no right to currency in any one corner within it: they are fecurities given for borrowed money, and require the neceffary folemnities of the law, as well as bonds, or other contracts of that kind. And it is exprefsly laid down by all our writers on the law of Scotland, that tickets, promissory notes, or mislive letters, except among merchants in re mercatoria, have no privilege, and therefore are null, unless holograph, wrote by the figner, or in terms of the ftatute 1681. Prof. Notes, and particularly thofe of trading companies, are not altogether o verlooked in our ftatute law. In the act 25. parl. 1696, declaring all deeds blank in the pertons names in whose fa Your they are conceived to be void, the notes of trading companies are put upon the fame footing with bills, and are excepted from the ftatute. The words are, "Declaring, that this act fhall not extend to the indorfation of bills of exchange, or the notes of any trading company." Pan. This ftatute does by no means allow trading companies to flue notes without obferving the folemnities of law; it only allows them to be indorfed in the fame manner with bills of exchange. Prof. The British Linen company was conftituted by a charter from the crown in 1746 [viii. 621.]. By the charter the company is to have perpetual fucceffion; a governor, deputy-governor, and direc tors are appointed, and a privilege of a nual election given to the members; th may fue or be fued by the name of t British Linen Company; they are i powered to appoint all officers and f vants neceffary for carrying on the affa of the company; to take up money up bills, bonds, or obligations, under the common feal; to make all reasonable b laws, conftitutions, and orders, neceffa for the better government and directi of the company; and, in fhort," to every thing that may conduce to the pr moting and carrying on the linen man facture." Now, independent of the general pl for promiflory notes, the notes iffued the British Linen company are bindi upon the company, because they are fued by the authority of the company virtue of an order entered in the comp ny-books, which makes them equally o ligatory, as if a formal writing had be executed by the company, for the spec purpofe of obliging the company to p all notes iffued by them of that form. After the company had appointed m nagers and other officers, the trade w carried on with great fpirit. But up due confideration had of the great ou lays which the company was expofed in this infant state of the manufacture, t long credit upon sales, and the great ri which neceffarily attended the introdu tion of a trade hitherto almost unknow a general court of the proprietors ca to the resolution of iffuing promi notes for fmall fums payable on demar which, whilft kept in circulation amon the manufacturers, might prove a favi to the company in the article of intere and enable them to bring the manuf tures of the country at a price to vye w the foreign at market: and the exe tion of this meafure was committed to directors. In confequence of this, the direct made trial of different forms of notes, fcribed in their federunts, to be done copperplate, with blanks for filling up writing what was judged neceflary to wrote; and they appointed the perfons whom the notes were to be subscribed. In 1751 the last form of notes was pointed; and they are of the tenor of th charged to have been forged by the panı viz. “Edinburgh, Να The tish Linen company promife to pay to W liam Hill, or bearer, on demand, ten E Lg Sterling, value received in goods. reder of the court of directors, Ebene MCulloh Manager. James Gordon mptant." When these notes were ready to be if and, the directors did, prior to the iffu g. caufe publish the following advertifeant in the news-papers. "Edinburgh, th Linen office, 22d October 1751. The court of directors of the British Licompany give notice, That they are fee new ten-fhillings, twenty-fhillings, nd five pound. notes, for value of goods be purchased by the company, having figure reprefenting Pallas, &c. and a ev cheque; which new notes are figned Ebenezer M'Culloh, or William Tod, Managers, and James Gordon the compaAccomptant; and are to have the fame mency with the notes formerly iflued the company." If it was even doubtful, whether the ifory notes of a trading company are ligatory in law, yet it is impoilible to stain, that the notes iffued by the BriLinen company in the manner before ed, are not valid obligations against company; and if fo, the pannel can no benefit from his defence founded un these notes not being obligatory wri P. In anfwer to this, it is to be obed, 1. That this order inserted in the pany-books can be of no avail to rentheir notes obligatory if they are not afsa natura; because it is in their er to destroy this order whenever they proper. The pannel does not, how mean to infinuate, that fuch a step 2 per be taken by fo honourable and table a company; but it is fufficient im, that it may be done. The advert fement in the news-pacan have no greater effect. Such adelements are a very new and extraory kind of obligation, unknown in of this, or, it is believed, of any country. If the validity of the Britenen company notes depends upon dvertisement, then every perfon who infert fuch an advertisement in their would be guilty of the crime of , and would be liable to the pucent of death; which is altogether sd and ridiculous! The British Linen company have no to grant fuch obligations. As a corporate they can do nothing but Tr as they are authorifed by their 3. Now, by their charter they are , only impowered to borrow money, to the extent of 100,000 l. upon bills, bonds, and obligations, which are dedared to be allignable; confequently all obligations which by their nature are not affignable, are excluded: but the notes in question, inftead of being allignable, are payable to the bearer on demand. It may perhaps be urged, that they are impowered to iffue notes by that particular claufe in the charter, by which they are allowed to do every thing that may conduce to the promoting and carrying on the linen manufacture. But whatever advantage this company may have over other manufacturers by ifluing notes, whereby they are enabled to carry on their trade without paying intereft for the money neceffary for that purpose, the pannel will be forgiven for thinking it a problematical quetion, Whether this privilege be in general ufeful to the linen manufactures of this kingdom? Trade never can be greatly extended when it cannot be profecuted with equal advantage by every person who inclines to follow it. Laftly, Even fuppofing that the British Linen company could grant obligations in the form of promiffory notes; yet the notes in question are not executed in fuch a manner as to bind the company: for they are not fubfcribed by the governor and directors, but by two persons under the defignations of Manager and Accompt ant; officers whofe names are not fo mucia as mentioned in the charter. A bodycorporate derives, not only its powers, but its form, from the charter by which it is erected; and it must act in the manner thereby prefcribed, or cannot act at all. The moment it tranfgrefles the bounds of its charter, it becomes a collegium illcitum; and its deeds are not only invalid, but even partake of the nature of crimes. Now, by the charter of the British Linen company it is declared, that a governor and directors fhall be chofen for the management of the company; and it is all along fuppofed, that the whole actings in the name of the company are to be carried on by thofe perfons only. It is they who alone are impowered to borrow money under the company's common feal; and in the whole of the charter there is not one claule mentioned by which they can delegate their powers, this only excepted, that they may authorise perfons to receive the fubfcription-money of the proprietors, and grant receipts therefor. Matters ftanding thus, neither the gene ral ral court of proprietors, nor the governor and directors, could delegate the power of binding the company to a manager and an accomptant. The order entered into their books is therefore null; and the notes ifsued in confequence of that order cannot be rendered effectual or obligatory. Prof. The notes of both the banks, which are executed of the fame form, are not more obligatory in law than the notes of the British Linen company; and yet feveral perfons have fuffered death by the fentences of this court for forging them, notwithstanding the defence now pleaded being stated in fome of thofe cafes; particularly in that of John Campbell, who was tried and convicted in 1731, upon a remit from the court of feffion. The notes of the banks and of the British Linen company are all equally the notes of trading companies, erected by royal authority; and there is nothing particular in the conftitution of the banks, which can make their notes obligatory in law, if the notes of the British Linen company are not obligatory. It has indeed been said in behalf of the pannel, That the bank of Scotland was conflituted by act of parliament; and that the Royal bank, by their charter, are impowered to iffue notes, to be executed in fuch form and manner as unto the company should seem proper. The clause of the charter founded on is in these words: "And may borrow, owe, or take up, in Scotland, on their bills or notes payable on demand, to be signed in such manner, and by fuch perfons, as the court of directors fhall direct and appoint, or in fuch other manner as the faid court of directors fhall think fit, any fum or fums of money whatsoever." It is true, that the bank of Scotland was conflituted in the way of ftatute; but there is no clause of the aft which authorises the iffuing of bills or notes, or of granting obligations, of any form different from what was authorised by the common law, founded upon usage and custom. As, at the pafiing of the act, the privilege of fummary diligence had only been given to bills of exchange by the ftatute 1681, it was judged proper to give the fame privilege to the bills or tickets of the bank to be erected: but still this did not impower the bank to deviate from the known form of a bill; nor is the privilege any thing more than what was given by ftatute in the year following, by act 36. parl. 1696, to all inland bills and receipts. With regard to the claufe in the cha ter of the Royal Bank, it is fuffi ient obferve, that if the mode followe! by th company was not obligatory at coinm law, the fovereign could not, by his cha ter, difpenfe with the law: therefore t just construction is, that it was understoo at the time of granting the charter, th notes might be lawfully iffued or grant by trading companies, without having t requifites neceifary to more folemn w tings; and in this view the claufe feems be declaratory of what was understood be the law when the charter was grante in 1727. Further, this charter introduces a for of transferring the stock of the compar abfolutely void, and difagreeable to la if our ftatutory folemnities of formal w tings fhall be understood to take place fuch mercantile transactions. No name designation of the writer, nor no fubfcri tion or defignation of witneffes are requ red; and, in fhort, fuch a writing, by t ftatutory law, is abfolutely void; but, common law, is valid as a mercantile tran fer. It seemed to be infinuated for the pa nel, that the charter of the Royal Ba had a legislative authority. But that w a mistake. [xxi. 327.] T Pan. A curfory view of the act for recting the bank of Scotland [xxiv. 128. will afford a sufficient answer to what t profecutors fay with respect to it. preamble sets forth the usefulness of a p blic bank; the corporation was theref erected with that view: and there i claufe in thefe words: "And it is here declared, that summary execution by hot ing fhall proceed upon bills or tick drawn upon, or granted by, or to and favour of this bank, and the manag and administrators thereof for the tin and protests thereon, in the same mant as is appointed to pass upon protests foreign bills by act 20. parl. 1681, Ch. I The word ticket here mentioned, fee formerly to have had a precise meani in the law of Scotland; yet it is now most entirely in defuetude. Howev what was thereby understood, appears be afcertained by the decifion above me tioned, Arbuthnot against Scot, Jan. : 1708, collected by Forbes, in these word "Walter Scot having, by his note, ob ged himself to pay, to Meff. Burgh a Arnold, or order, 15 l. Sterling, at L don, or at Edinburgh, with the curr exchange; and the note being indorfed Nr Arbuthnot, who purfued Scot for pay , the Lords found, That it was not of the nature of a bill of exchange, nor partake of the privileges thereof, but was a fimple ticket. in respect there was pot a drawer and accepter; and therefore und the fame noll, and not probative, fr want of the names and defignations of writer and witneffes." From this decifion it would appear, that the word ticket conNevs pretty much the fame idea as that the notes ifùed by the banks; confequently the above clause of the act erect ing the old bank, gave authority to their ifting fuch notes; which therefore be came obligatory writings; although ineffectual in law when issued by private perforis. With regard to the Royal Bank, the annel will readily admit, that his MajeI cannot, by a charter, difpenfe with the law; but it is equally certain, that he is intitled to the lawful exercife of his prerogative; one confpicuous part of which , the liberty of erecting bodies-corpoate; which derive not only their powers, but even their form and manner of acting, from the royal grant by which they are Ritablithed. Be the common law, no person can difpole of another's property without his confent: vet if a number of perfons are erected into a body-corporate, and the admidration is by the charter lodged in the bands of one individual member, that invidual may difpofe of the funds, not ony without the confent, but even contrary the opinion of the whole other membert. In the fame manner, if certain offres are appointed to act, they will have delle direction of the affairs of the company; and if the fe officers are appointed zame others who fhall bind the compa, the deeds and actings of the perions named are alone obligatory. Nor is it only the perions that can bind the company that may be pointed out by charter; the efl nce and form of the gation it felf may be thereby eftablithThus the charter may appoint an obration to be executed under the feal of the company. Now, though the appenon of a feal be not obligatory on private perfons; yet, in fuch a cafe, it would contute the very eflence of the obligation against the company: no deed would be ld without it. And though, no doubt, the fubfcription of the whole individuals fthe body corporate might fo far fupply e want of the feal, as to found an action VOL. XXVII. against them in their private capacities; yet a creditor, by a deed properly fealed, would carry off the whole of the company's effects, in a competition with another creditor, who was poff ff d of a deed subfcribed by each individual member. The fovereign therefore exercises no difpenfing power when he declares in what manner bodies-corporate are to act, and by what form or mode of obligation they are to be bound. The common law has prefcribed no rules for thefe matters, but has left the whole to the difcretion of the fovereign; who, as he has undoubted authority to prefcribe the mode of government, and admin ftration, in bodies-corporate, is likewife impowered to prefcribe the mode of obligation. Nor can the lieges fuffer by this: for, in contracting with a public company, they must do it from the knowledge of their being erected into a corporation by their charter; and, of confequence, they must be in the knowledge of the manner in which their obligations were to be conflituted; otherwife they will be guilty of verv lu›ine negligence -The cafe is otherwife with individuals. The common law directs the way and manner in which they hall bind them elves; and it is undoubted, that the fovereign cannot dispense with that law, or bind them down by an informal obligation. The application of this doctrine is obvious. The Royal Bank, in terms of their charter, are bound by every note pavable on demand, which is figned in the manner and by the perfons appointed by the court of directors. How far they are bound by notes bearing an optional daufe, is another question, with which the pannel has no concern. On the other hand, the Britifh Linen company have no power, by their charter, to illue any notes whatever; they are only impowered to borrow money upon bills, bonds, or obligations, which are affignable: therefore the promiflory notes payable on demand, iffued by their manager and accomptant, are void and null, and can afford no obligation. Pan. Another defence was ftated upon the part of the pannel, which proceeded upon the fuppofition that the notes ifùed by the company fhould be confidered as obligatory, vis. That the libel is irrelevant, in refpest it has not charged him with forging the feal of the company. Prof. It is true, that the company, by their charter, are impowered to take up money |