account is never once mentioned in the bill of advocation, nor even in the petition to the Admiral, the words John White being only there inferted along with a number of other names from whom he produces accounts. We have been the more particular with regard to the proceedings before the Admiral, because, upon thefe, in a great meafure, we apprehend, the cause was determined. When this account of John White's was firft produced before the Lord Ordinary, the purfuer entertained great fufpicions of its being falfe and fabricated. He therefore fet about inquiries concerning the fuppofed writer of it; and received information, that he was drown ed the latter end of harveft 1770. To this feveral witneffes deponed. The defender, on the other hand, in order to fupport this account, produced at different times many writings, fome faid to be holograph of John White, others to have his fubfcription adhibited to them, and all of them bearing to be wrote in the 1771. To the truth of this, likewife, a vaft number of witneffes deponed. In this contrariety of evidence, it became difficult to determine the fact. Proofs upon proofs were allowed upon different branches of the caufe, in the Highlands, in the Iflands, in different parts of Scotland, and oftener than once on commiffion in Ireland. Witneffes were examined and re-examined before the sheriff of Edinburgh, the Lord Ordinary, and in prefence of the whole court. A caufe, in fhort, which, at its original institution, was for fo trifling a fum, and feemed of fuch eafy difcuffion, became at once expenfive almoft beyond example, involved one of the parties in the deepest of crimes, and, but for providential circumstances, might have been rendered altogether inextricable.

It would be endless to mention all the proceedings before the court of feffion in this extraordinary caufe. Suffice it to fay, that in the month of September 1777, very long memorials for both parties, upon the whole proofs, were printed, and given in to the Lords; and, in the beginning of the fubfequent fefiion, a hearing was appointed. This continued for many days. The counfel were, for the purfuer, Meff. Andrew Crofbie, John Maclaurin, and Alexander Abercrombie; and for the defender, Meff. David Rae, George Buchan-Hepburn, and Robert Blair.

VOL. XL.

On the 18th of December 1777, the Lords proceeded to deliver their opinions; which they did in the following order; Lords Braxfield, Kennet, Auchinleck, and Gardenfton, fpoke that day; and the day following, Lords Elliock, Kames, Juftice-Clerk, Hailes, Monboddo, Wefthall, and the Lord Prefident. All their Lordships, except Lord Monboddo, expressed themselves perfectly convinced from the proof, that John White was not alive in the 1771; confequently, that the account founded upon by the defender, and all the other exhibits produced by him in fupport of it, were falfe and fabricated. Several of their Lordships expreffed the highest deteftation at the conduct of the defender during the courfe of the procefs, particularly with regard to the falfehoods he emitted when judicially examined before them; the procuring of falfe certificates, and ufing them knowing they were fuch; and the procuring of letters to afcertain a false date, as to the death of John White, as to which the people who granted them, upon recollection, and being put upon oath, acknowledged they were impofed upon by the defender. The conduct of the purfuer, ou the other hand, was declared, in every ftep of the caufe, to be perfectly fair and unexceptionable.-The court, Dec. 19. 1777, pronounced the following interlocutor.

"The Lords having advised this procefs, teftimonies of the witneffes adduced, writs produced, memorials hinc inde, with the whole papers and proceedings in the caufe; and having heard par ties procurators thereon; find the ac count produced by the defender, as due by him to John White, mafter of the Happy Return wherry of Tarbert, bearing date the 4th day of January 1771, with the faid John White his receipt or difcharge of the payment thereof, annexed thereto, not probative; therefore repel the defence founded on faid acaccount and receipt or difcharge; and repel alfo the defender's whole other defences; and find the defender liable to the purfuer in payment of the fum of forty pounds five fhillings and one halfpenny Sterling, contained in the three accounts libelled on; and of the intereft thereof, from the expiration of twelve months after the refpective dates of the furnishings, until payment thereof; and decern: Find the defender liable alfo in

full expences of procefs, of which ordain an account to be given in by the purfuer, to be in the boxes on the first day of January next, and the defender to give in his objections thereto, alfo to be in the boxes, on the 13th of faid month. Further, in regard that, in the course of this procefs, circumftances have appeared in the conduct of the defender, and in the behaviour of certain of the witneffes, highly improper and unjuftifiable, the Lords declare they will refume confideration thereof, when the account of expences shall come to be advised. And the Lords continue the order on the defender, to fist himself perfonally at the bar of this court at advifing faid account of expences, and at all other diets of this caufe, with certification; and discharge the order formerly made on the purfuer for his personal appear

ance.

Lords Alva and Covington were not prefent upon this occafion, owing to indifpofition; Lords Stonefield and Ankerville did not deliver any opinion, but voted on the fide of the purfuer: fo that there was a majority of their Lordships of twelve to one.

An account of the purfuer's expences was accordingly given in, amounting to L.1762: 14:42 12ths Sterling. But an appeal was taken for the defender: this notwithstanding, the purfuer's account of expences was determined by arbitration; fo that nothing remained for the court to determine, but the confideration of the conduct of the defender, and fome of the witneffes.

As the account of expences had been given in, but no objections offered, a motion was made from the chair, June 27. to call the cause, in order to know the reafon of the delay. The counfel for the defender told that an appeal had been taken; and none of the purfuer's counsel happening to be prefent, the caufe was delayed.- -It was refumed on the 8th of July. Lord Covington faid, that had be been prefent when the caufe was advifed, he would have opposed the judge ment given totis viribus: but fince judgement had been pronounced, finding, in effect, that a multitude of forgeries and perjuries had been committed, he thought they fhould proceed to inflict punishment: That an appeal, indeed, had been taken; but that he was inform ed Maclean had entered into a fubmiffion, virtually admitting the juftice of the judgement against him, and referring to

an arbiter only how much he fhould pay in name of expences. This his Lordship confidered to be paffing from the appeal, fo that it could not prevent the court from proceeding.-The Lords JufticeClerk, Alva, Hailes, and Braxfield, oppofed this opinion, and maintained, that the court could not proceed until the ap peal was either difmiffed by the Houfe of Lords, or allowed by that Moft Honourable Houfe to be withdrawn. Lord Hailes obferved, that it was very delicate ground, and that he did not with their Lordships to be called up to London. None of the Lords being of Lord Covington's opinion, the court declined taking any cognifance of the cause while the appeal pended.

A writer in a late news-paper says, that his curiofity was raised last summer, on being informed, that the judges were to take under confideration the ftigma proper to be inflicted on a person, who, by his moft unwarrantable conduct in defending a very tedious and expensive fuit, had made it neceffary for the public good, that he should be held forth as an example to deter others from committing the like crimes. "How much then (faid he) was my indignation roufed, when, upon calling the cause, I found the juftice due to the public, evaded, and the court, in a manner, laughed at by a perfect quibble; for in no other light could the intimation of a writ of appeal be viewed, which was never meant to be called, or a fingle step intended to be taken to discuss it. The judges law, indeed, very clearly, that this was the cafe: but how were they to help themfelves? I muft fay, I was of opinion, with the worthy senator, who faid, that he thought the appeal paffed from, by the defender's having entered into a fubmiffion, on which a decreet-arbitral paffed, afcertaining the expences, and in which the parties had acquiefced."

He then tranfcribes from Lord Kames's Statute Law of Scotland abridged, App. p. 450. an order of the House of Peers, of April 5. 1720, intitled, Appeals not anfwered, to stand dismissed, viz. “ Ordered, That fuch appeals as have been prefented during this feffion, to which no anfwers have been, or fhall be, put in during this feffion; and all fuch appeals as fhall be prefented in any fubfequent feffion, to which no anfwers fhall be put in during the fame feffion; if neither the appellant, within

eight

eight days, to be accounted from and after the first day of the next feffion, or meeting of parliament, fhall apply to this Houfe to appoint a peremptory day to answer, nor the refpondent put in an anfwer within the faid eight days, fuch appeals shall stand difmiffed; but without prejudice to the appellant's prefenting any new appeals thereafter, as they fhall be advised.'

The writer thinks, that this order may not have occurred to those who feemed to wish the appeal out of the way; and as the defender's writ of appeal ftands difmiffed, he prefumes the court are now at liberty to refume the confideration of the ftigma referved in their interlocutor of Dec. 20. 1777, against the defender and certain witneffes.

EDINBURGH CAUSE.

attempt made to alter the fet of the city.

The papers for the council were in the name of The Right Honourable John Dalrymple, Lord Provost of the city of Edinburgh, and others; and those for the trades were in the name of James Stodart, Efq; Old Provost of Edinburgh, James Stirling, Efq; one of the prefent Bailies of Edinburgh, and others.

From these papers we learn, that the town-council of Edinburgh confifted originally of the magiftrates and merchants of the guildry; that the firft time the trades, or crafts, claimed a reprefentation in the council, was in 1508; in which year they petitioned the council, that fix or eight of their number might be admitted to hit at the board, and be declared capable of being elected bailies and other officers; and received for anfwer, that the council" would

--

motion was made in the town-council of Edinburgh, Feb. 19. 1777, by Provoft Stodart, "That an application be made to the Convention of Royal Boroughs, to alter that part of the fet of the borough, refpecting the election of deacons, which gives the council a power to shorten the leets; and to declare, that each incorporation fhall be at liberty to elect a deacon yearly, in time coming, without being subjected to any restraint by having their leets fhortened by the council;" that this motion was carried in the council, ten of the ordinary council and the eight extraordinary deacons voting for it, and thirteen of the ordinary council voting againft it; that a protest was taken against admitting the votes of the extraordinary deacons ; and that a bill of fufpenfion was applied for, and paffed [39. 563,4]. The fufpenfion having come to be difcuffed before the Lord Alva Ordinary, his Lordship, Aug. 8. 1777, ordered in formations; which were accordingly lodged; that for the council having been drawn by Mr Maclaurin, and that for the trades by the Lord Advocate: and the court, Jan. 29. 1778, “ fuftained the reafons of fufpenfion, fufpended the letters fimpliciter, and decerned.A reclaiming petition for the trades, drawn by Mr Crosbie, and dated Feb. 12. 1778, and answers for the council, drawn by Mr Maclaurin, and dated March 3. were given in; and the court, Aug. 7. unanimously refused the defire of the petition, adhered to their former judgement, and condemned in severe terms the

thairupon but advyce of the King's Heeness and his Parliment ;"- that though it do not appear at what time the trades firft obtained a representation in council, it is certain, that they were reprefented there before 1582; for in that year difputes having come to a great height between the merchants and trades, they agreed to have their differences determined by arbitration, and a submisfion was entered into to certain arbiters, and K. James VI. as overfman; who pronounced a decreet arbitral, of date April 22. 1583, which was afterwards ratified in parliament, and is denominated the fet [25. 378.];-that this decreet directed, that the council fhould, before the election of deacons, call in before them the deacons of crafts, each feverally, and inquire their opinion of the belt and worthiest of their crafts; and then leet three perfons the beft qualified of each craft, of whom the old deacon to be one, and deliver their names to the deacons respectively; that each craft should convene next morning, chufe one of the three to be their deacon, and next council-day present him to the council; who fhould authorise them in their offices; and from the fourteen deacons the council fhould chufe fix, to be adjoined with the ordinary council; that the old manner of giving in tickets by the deacons, out of whom two craftsmen fhould be chofen, fhould be abrogated, and that the two crafts, men should be chosen yearly by the coun cil, indifferently, of the worthieft of the 4 Y 2

crafts;

nor (they fuppofe) ever will be given. If the trades (say they) thought themfelves aggrieved, they ought, as parties, to have applied for an alteration in a proper manner, by laying the fuppofed inconvenience before the different bodies having intereft, with the reafons for the alteration if these were fatisfied, the proposed alteration might be accomplished by arbitration, as was done in 1583 and 1729; if they opposed the alteration, the trades might apply to parliament, or otherwife. If the towncouncil can alter the let, there is an end at once of the conftitution: for the council is composed of two sets of men, the merchants and crafts, whofe interefts are oppofite; and if fuch petitions were competent, the conftitution would be conftantly expofed to a fundamental fubverfion, as the one or the other of thefe bodies had the greatest sway in council.

On the third reason of suspension, the queftion's having been carried by the votes of the extraordinary deacons, the fufpenders, besides the legal exclufion of thofe votes, argued, That the trades had too great weight in the council: for that the guildry pay four fifths, and the trades but one fifth, of the public burdens. In answer to this, the trades ftate what follows from the cefs-roll.

The whole cefs impofed by the stent-mafters, from March 25. 1777 to March 25.

To this the council reply, That as far back as 1583, the merchants paid four fifths of the ftent, or public burdens; for fo it is expreffed in James VI.'s decree; and that the diftinction attempted to be made between the merchants and the guildry is without foundation; for every guild-brother who is not a member of an incorporation, is capable of being elected a magistrate or counsellor.

The argument on the fourth reafon of fufpenfion, the powers of the convention of Royal Boroughs, is very long. The eldeft records of the convention that are extant, bear date April 4. 1552; in which the convention lays down a general rule for electing magiftrates in alt boroughs. The trades give feveral inftances of the convention's exercifing the powers of giving fets to boroughs, and making alterations in fets. But the council contend, that it is only upon a fubmiffion that the convention alter fets; that an established fet cannot be altered without the confent of all concerned; and that the power of altering fets is competent only to the parliament: adding, that the proceedings of the convention are reviewable by the court of feffion; fo that the new-modelling or altering fets, if competent to the convention, would ultimately be lodged with that court.

CAMPBELL against SCOTLAND.

is paid,

By the fourteen incorporated trades, as heritors of lands within the city, exclufive of heirs and reprefentatives of deceased members, about L.. By the members of the merchant-company, including the reprefentatives of thofe that are deceased, and thofe who have long fince given up all concern in trade By thofe who are denominated merchants, or members of the guildry, but are not members of the merchantcompany, in which are included vintners, ftablers, cadies, chairmen, porters, &c. By the other inhabitants, who come under none of these denominations, fuch as members of the college of juftice, &c.

402

216

о

418 3 11 2

1750 15

52

An action has fince been brought by the trustees of Col. Campbell, who is himself in America, againft Mr Scotland, to account for no less a fum than 2872 1. Sterling, which it was alledged had been put into his hands as political agent for the Colonel. Mr Scotland defended himself by averring, That his employment was illicit: That their Lordships mutt