to be for money expended in the purchase of shares of the stock of the said Company; and that your petitioner in the following month of June, requested the said C. D. to obtain for him other fifty shares of the stock of the said Company, which the said C. D. accordingly accomplished in the same manner and at the same rate as in the former transaction; and that on the occasion of this last purchase also, the said C. D. gave your petitioner a letter, to the effect that he had sold him fifty shares of the said Glass Company, which he was ready formally to transfer when required; and that your petitioner also afterwards reimbursed the said C. D. for his advances on this second occasion, and that the sum paid to him by your petitioner for both purchases amounted in the whole to the sum of three hundred and fifty pounds; and further setting forth, that sometime thereafter, the said Stirling Banking Company, and the individual partners thereof, were discharged, and the sequestration of their estates wound up; and that on this being done, the said C. D. became anxious to withdraw his name as a shareholder of the said Glass Company, and to have the shares ostensibly standing in his name, and purchased for your petitioner's behoof in the manner above detailed, formally transferred to your petitioner; and that as in terms of the contract of co-partnership of said Company, no transference of stock could be effected without the concurrence of both parties; and as the said C. D. was in the interim personally liable for any calls that might be made on the stock, he repeatedly applied in the course of the years eighteen hundred and thirty and eighteen hundred and thirty-one, to your petitioner, both verbally and in writing, to implement the original agreement between them; but that as the Company had in the mean time become a losing concern, your petitioner had refused to take a transference of the shares from the said C. D. to your petitioner's name; and that the said C. D. was compelled to pay up certain additional proportions, or instalments, of the said one hundred shares, to the extent and at the periods following: viz., on the 7th day of January, 1830, the sum of one hundred pounds, being a call on the partners at the rate of one pound per share; and on the 7th of March, 1830, the further sum of one hundred pounds sterling, being a second call on the partners at the rate of one pound per share; the said two calls, or payments, together amounting to the sum of two hundred pounds sterling; and that two other instalments had been demanded by the said. Company, for which the said C. D. was liable; viz., on the 8th day of March, 1831, the sum of two hundred pounds sterling, and on the 30th of July, 1831, one hundred pounds; the said two calls amounting together to the sum of three hundred pounds sterling; and that the said C. D. having made the foresaid payment of two hundred pounds, for behoof and on account of your petitioner, was entitled to reimbursement of the same from him; and that the said C. D. being liable also for the foresaid sum of three hundred pounds, and to be called on for further payments, so long as his

name stood as a partner of the said Company, for the foresaid shares on account of the same; that your petitioner was bound to relieve him of all such payments, with interest; and also to relieve him from every risk or responsibility connected with said one hundred shares of the stock of the said Company, by immediately getting the said shares standing as aforesaid in the name of the said C. D., regularly and effectually transferred to your petitioner's own name and risk; and the summons of which action concludes, that it should be found that the foresaid one hundred shares of the stock of the said Company were purchased for behoof of and belonged to your petitioner; and that your petitioner should be decerned and ordained, at his own expense, to have the said shares regularly transferred from the said C. D. to himself, according to the forms and in terms of the contract and regulations of the said Company, and to make payment to the said C. D. of the foresaid sum of two hundred pounds, advanced and paid by him as aforesaid, and interest thereof from the respective periods of advance above mentioned; and in the event of the said C. D. being obliged to advance the other foresaid sum of three hundred pounds, or any part of it, or to make any farther advances or payments on account of the foresaid shares, that your petitioner should be decerned and ordained to pay the amount of the same to him, with interest thereof, from the periods of advance till payment; as also generally to free and relieve the said C. D. of all calls or payments exigible, or to become exigible, by or to the said Company, on account of the said stock, together with the expenses of process; as the said summons in itself more fully bears.

That to this action defences were lodged by your petitioner, in which he pleaded that, having been induced by fraudulent concealment and misrepresentation on the part of the said C. D., who was the managing director of the said Edinburgh, Glasgow, and Alloa Glass Company, to enter into the transaction, he was not bound thereby, or liable for any part of the sums concluded for; and that, in consequence of such misrepresentations, he was not bound to take a transfer of the shares to his own name, and ought to be assoilzed at once from the conclusions of declarator, payment, and relief.

That the said action having come to depend before Lord Medwin, Ordinary, his Lordship ordered the said C. D. to put in a condescendence of his averments in support of the action, and your petitioner to answer the same.

Thereafter the record having been closed, the cause was remitted to the Jury roll, and an issue taken by the said C. D. while your petitioner craved an alternative issue, to the terms of which the said C. D. having objected, the Lord Ordinary gave out a note, and afterwards appointed the issues, condescendence and answers, and note, to be printed and lodged, with the view of being reported to the court.

That the court thereafter approved of the issues as then altered, and remitted to the Lord Ordinary to proceed accordingly.

That the said issues were accordingly subscribed by the Lord Ordinary, and ordered to be the issues to try the several questions in dispute betwixt the parties.

That, at a sitting of the second division of the Court of Session, holden at Edinburgh on the 10th March, 1833, before the Right Honourable the Lord President of the same division, the said issues came on for trial, when certain witnesses were adduced for the said C. D., to whom an objection was taken for your petitioner, but the said Lord President did overrule the said objection; whereupon the counsel for your petitioner did except to the opinion and deliverance of the said Lord President, and did tender exception accordingly.

That a bill of exceptions was accordingly lodged for your petitioner, and counsel were heard thereon, and the court allowed the bill to be amended; and counsel having been again heard, the following interlocutor was pronounced :—" 12 May, 1833.—The Lords disallow the bill of exceptions, and find the defendant liable in expenses. Appoint an account thereof to be lodged; and remit to the auditor to tax the same, and to report."

That your petitioner is advised, and humbly conceives that the foresaid interlocutor of the Court of Session, disallowing the said exceptions, is erroneous and contrary to law and equity; and your petitioner being thereby aggrieved, humbly appeals from the same to your Lordships, and prays, &c.

The prayer may be as in the form given, ante p. 309, adding the certificate of reasonable cause, and the certificate of notice; and then annexing the bill of exceptions, as required by the 55 Geo. III. c. 42, s. 7.

The statute requires that the cause be appointed for hearing on or before the fourth cause day after the time limited for laying the printed cases on the table of the House. This time, in Scotch cases, is usually eight weeks from the day on which the appeal has been presented so that in less than three months the final judgment of the House may ordinarily be obtained.

There is no other peculiarity in appeals of this nature; the rules and regulations established upon ordinary appeals from the court of Session being alike applicable to appeals upon bills of exceptions.

Where an appeal is brought under the 9th section of

the 55 Geo. III. c. 42, against judgments in points of law, applicable to, or arising out of, the finding of the jury, the cause is not entitled to priority; nor are the proceedings in any respect different from those on an ordinary appeal from the court of Session.

A party contemplating an appeal under the Jury Statutes, will keep in view the two following points (decided by the Court of Session, in Robertson v. Ainslie, 29th July 1838;—and again, in the Second Division, as these sheets are going to press, in Roger v. M‘Lellan) ;— namely, 1st, That to be enabled to raise a point of law, so as to go to the Court of Session and House of Lords, the matter of law must be objected to at the trial; though a bill of exceptions is not the only mode of doing it. 2nd, That an appeal against the interlocutor, refusing a motion for new trial is irregular; though disposed of, not on its merits, but on the ground that the matter of law was not objected to at the trial. And such party will also remember, that in Jury cases, an appeal will lie against the mere decree pronounced, conformably to, and in execution of the verdict; as in arrest of judgment (').

(1) Campbell v. Campbell, McL. and Rob. 387.

PRACTICE

ON

SCOTCH APPEALS.

CHAPTER THE FOURTH.

Of Proceedings below, pending Appeal.

Provisions for Interim Execution under 48 Geo. III. c. 151, 322.—Application for Interim Execution not considered a proceeding in the original cause, ib.-Record supposed to be removed by the Appeal, 324.-Doubts on this head, ib.-Cases in which the Statutory provision fails, 325. -Suggestion of a remedy, ib.

THE provisions of the 48 Geo. III. c. 151, respecting interim execution pending the appeal, are as follow:

Sect. xvii. And be it enacted, that when any appeal is lodged in the House of Lords a copy of the petition of appeal shall be laid by the respondent or respondents before the Judges of the division to which the cause belongs; and the said division, or any four of the Judges thereof, shall have power to regulate all matters relative to interim possession or execution, and payment of costs and expenses already incurred, according to their sound discretion, having a just regard to the interests of the parties, as they may be affected by the affirmance or reversal of the judgment or decree appealed from.

Sect. xviii. And be it enacted, that it shall not be competent by appeal to the House of Lords, touching the regulations so made as to such interim possession, execution, and payment of expenses or costs, to stop the execution of such regulations as shall have been so made, as aforesaid respecting the same: Provided, that when the appeal touching the interlocutor, appeal, or judgment appealed from shall be heard, it shall be competent for the House of Lords to make such order and give such judgment respecting

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