Retention-Landlord and Tenant-Sequestration-A lessee of minerals sold his lease. The landlord, who acted as law-agent for the seller, was a consenting party to the transaction. He received the price of the assignation for behoof of the seller, but failed to pay it over to him. In a question with a judicial factor appointed to manage the heritable estate for the behoof of the real creditors of the landlord, who had been sequestrated-Held, that until a valid discharge was given him for the price, the purchaser of the lease was entitled to retain arrears of rent falling due prior to the sequestration. This was an action to recover arrears of rent from the defender, who was lessee of the minerals contained in the lands of Longfaulds and Bannaghton. The arrears sued for were due at and prior to Whitsunday 1848, when the defender ceased to possess under the lease. The defender had bought the lease of the minerals, at a public roup, from Paterson and others, the former lessees. Henry Glassford, the owner of the estate, acted as law-agent for the sellers. He received for their behoof the sum of £600, as the price paid by the defender for the lease in question, and granted an acknowledgment for that sum. He failed, however, to pay over the sum to the sellers, to obtain a valid discharge for that sum in the defender's favour, and to hand over to him a renunciation or assignation of the lease.

Glassford having been sequestrated on 30th November 1847, and the trustee for the personal creditors having renounced all claim to the heritable property, this last was placed under the management of the pursuer, as judicial factor, in July 1848.

The defence was, that, until a valid discharge for the £600 was handed to him, the defender was entitled to retain the rents.

The Lord Ordinary pronounced the following interlocutor:

"Finds that the defender is entitled to retain the rents in question aye and until he shall receive a valid discharge for the sum of £600 sterling, admitted to have been deposited by him in the hands of Mr. Henry Gordon, now Glassford, of Dougalston, the constituent of the pursuer, on the 16th of February 1842, for behoof of the former lessees, from whom the defender purchased right to the lease libelled: Quoad ultra, appoints the case to be enrolled.

"Note. There is no room for dispute as to the nature of the original transaction in this case. On the 9th of February 1842, the defender purchased from the original lessees, by public roup, right to lease of certain subjects on the estate of Dougalston, for £600 sterling. Mr. Henry Gordon, now Glassford, the proprietor of the estate, acted as agent for the sellers; and, on the 16th of February, the defender placed the purchase-money in his hands, taking from him an acknowledgment in these terms:You have this day paid me £600, which is deposited in my hands for behoof of John Paterson, John M'Aulay, and Robert Martin, son and heir of the deceased James Martin, who had right to the lease of Longfauld coal and lime-works, which was purchased by you at the roup thereof on the 9th current, and which is to be paid over by me to the said John M'Aulay, John Paterson, and Robert Martin.'

"It now appears that Mr. Glassford has neither paid nor accounted for this money to the original lessees, and these parties have accordingly raised an action of payment against him in this Court, which is now in dependence. In their summons they set forth, that 'John Marshall (the defender in the present action), without any authority from the exposers, paid over and consigned in the hands of the said Henry Gordon, defender, the said price of £600, including therein the £50 deposited with the clerk, which had been previously handed over to the said Henry

Gordon; that the said Henry Gordon has failed to pay or account for the said id sum--and that, therefore, the pursuers are entitled to decree against him for the same, with interest from the 16th of February, when the money was consigned in his hands for their behoof. The summons concludes in these terms: And the said John Marshall should be called as a party hereto for his interest, under reservation of the right of the pursuers to proceed against him for recovering payment of said price, and interest due thereon, should they be so advised.' In short, in the event of not recovering the money from Mr. Glassford, the pursuers reserve their right of action against the defender. In these circumstances, the obligation on the part of Mr. Glass ford to procure a valid discharge in favour of the defender, seems indisputable, while the tenor of the action at the instance of the original lessees against Mr. Glassford, shews that the defender has a substantial interest to insist for performance of this obligation. So long, therefore, as it is not implemented, the Lord Ordinary is of opinion that the defender is entitled to retain the rents for recovery of which the present action has been brought by the judicial factor on Mr. Glassford's estates, It was explained on the part of the defender, at the debate, that in the event of his receiving a valid discharge for the price of the lease, it was no longer necessary for him to insist for an assignation to the lease in terms of the original a articles of roup."

The pursuer reclaimed. Anderson for reclaimer, (July 2)-As the defender has possessed the subjects let, there is no question that the rents are legally due. Why should these rents not be paid? The defender says that he is entitled to retain them until a discharge of the £600 is produced. He does not now insist for an assignation of the lease: But he says we are bound to protect him against à second claim for the price at the instance of the ori ginal lessees. These lessees have not yet constituted their claim against the defender, and may never constitute it. The letter of acknowledgment would be a good defence. In any view, the present defence cannot be maintained against a judicial factor.-Turner Nicolson, 6th March 1835. Stewart v. M'Ra, 12th Nov. 1834.

Inglis for respondent-There is not throughout the record either a statement or a plea to the effect that the pursuer is here in a different position from the landlord. We are, therefore, in a position to exclude that argument, and to hold that the pursuer sues as the representative of the landlord. But we are not afraid of following the pursuer into the line of argument which he now adopts for the first time. We are not within the rule laid down in Turner and Nicolson's case; but, on the contrary, we are within the exception there pointed out. From the beginning, the landlord was a party to the transaction. This was necessary, as there was an exclusion of assignees in the original lease. We are not insisting for a title of possession; we would be entitled to it, but it is not necessary for the protec tion of our right. But our not insisting in that right does not alter the position of parties. Our complaint is, that we have not got the benefit of the contract we made. We have entered into possession of the subject on the faith of that transaction, from which we have derived no benefit through the fault of the landlord. Therefore, this case is within that category of cases in which the tenant is entitled to retain his rent, just as much as if he had not got all the subject let.

Lord Justice-General.-I am for adhering. I think it is demonstrable that Mr. Glassford was the effectual means of giving the defender a lease of these premises. Indeed, it appears that his concurrence was necessary, as there was an exclusion of assignees. Then he receives the £600, and lays himself under

the obligation of paying it to the former tenants. He took that position as proprietor of the estate, as dominus of the transaction. Then he was sequestrated, and a judicial factor was appointed. But the judicial factor is just in the shoes of the landlord. Mr. Glassford ought to have paid over the money to the old tenants, so as to secure the defender; but, instead of doing so, he put the money into his own pocket, because he happened to act as law-agent for the sellers. This proceeding was contrary to plain and manifest justice. I hold this obligation to procure a valid discharge in the defender's favour to be very clearly a part of the contract of parties. It would be most unjust to expose him to this risk; and I think the Lord Ordinary has taken the right course, in compelling this security to be given. Lord Mackenzie.-I have some difficulty in this case. It is not disputed that the rents sued for are due; and the ground assigned for refusing payment is, that the obligation to pay the £600 to the original lessees was made real as a burden on the transaction. I think it a strong thing to hold that. Suppose that the lease, being sold to one person, and this obligation being entered into by the landlord, he sells to a singular successor : Would this obligation transmit as a real burden, effectual as such against the purchaser? No doubt the obligation to pay over the £600 is part of the contract; but I could not hold it to transmit against a singular successor. I can as little hold it to transmit against an heritable creditor who is a singular successor. Suppose there was here no trustee or judicial factor at all; but that we had the creditor himself seeking to recover these rents: I don't see how he could be held as barred from recovering them in respect of anything which the landlord undertook as part of a bargain between the former and the actual lessees. The landlord did not discharge the rent, and could not discharge the rent. If the heritable creditors had come forward themselves, could they not have made good their right? This obligation to pay over the £600 to Paterson and others is no part of the lease; it is part of a transaction for assigning the lease. Now, the lease itself does not contain any obligation as to the payment of this £600. There may be some doubt whether the heritable creditors have properly come forward. Should they not have been made parties to this suit, and should not the judicial factor have distinctly come forward for them? I therefore doubt whether we should order payment to the judicial factor. I think there ought to be consignation by the defender, or that we should ordain him to find security.

Lord Fullerton.-I agree with your Lordship and the Lord Ordinary. It appears from this record that the Lord Ordinary never heard a word of this argument as to the right of the heritable creditors, whom the judicial factor represents. Their right not being properly before us on this record, I don't see how we can take it into consideration. At any rate, I think the payment of the sum was an inherent condition of the transaction. Besides, all the rents sued for fell due before the judicial factor's appointment. There is no question here as to the anticipation of rents. The defender put into the landlord's hands more than enough to cover those rents which were due, and it is only for those rents that the action is raised. He has already put into the landlord's hands more than the rents due. Glassford, at Whitsunday 1848, at which time the judicial factor was not yet appointed, was in possession of the rents then due. This is just the case of a tenant who has placed in the hands of a landlord sufficient to pay the rents due at a particular term. Therefore, he is clearly entitled to retain the rents sued for. For if he should be found liable to pay this sum to the outgoing tenant, then he is just in the position of a tenant who has put in the landlord's hands more than sufficient to pay his rent. He is therefore entitled to retain until his title is cleared up. If he choose to consign or find caution, that is another matter.

Lord Cuninghame.-I rather participate in the doubts of Lord Mackenzie. Looking at the interests of the heritable creditors, it is not deniable that anticipation of rents is not to be permitted in a question with them.

Lord Fullerton.-But the rents fell due prior to the appointment of the judicial factor.

Lord Cuninghame.-At any rate, that principle enters very deeply into the present question. It is very much a case of that description. It is said that Mr. Glassford failed to pay the sum of £600 to the former tenants, and that this party is entitled to be indemnified. It is said that this plea is not raised. I confess I came prepared for nothing else, from the statements in the record that Glassford was sequestrated, and that the judicial factor represented heritable creditors. What was the judi

cial factor appointed for, except for heritable creditors? The factor has a right to discharge these rents. They are not paid, and could not be paid, so as to disappoint the heritable creditors. I doubt much if these rents could be discharged by a claim of compensation of this sort. It is said that the judicial factor was appointed after the rents fell due. But there are undischarged claims which fairly fall under the administration of the judicial factor. I think it would be desirable to take more time, that the facts may be cleared up.

Case delayed.

The case having been again called this day

Lord Mackenzie.-I now concur with the views of the majority. Lord Cuninghame.-I rather think we should draw a distinction between the rents which fell due before, and those which fell due after the sequestration. As to the latter, the sequestration is an interpellation for behoof of the creditors.

The Court pronounced the following interlocutor:"Alter the interlocutor of the Lord Ordinary in so far as it relates to the half-year's rent falling due at Whitsunday 1848; and find that the defender is not entitled to retain the said half-year's rent: Quoad ultra, refuse the prayer of the reclaiming note, and adhere to the said interlocutor; and remit the cause to the Lord Ordinary to proceed farther as shall be just; reserving all questions as to expenses of process."

Lord Ordinary, Dundrennan.-Act. Anderson, Cook; James Newton, W.S. Agent.-Alt. Inglis, Macfarlane; Lockhart, Morton, Whitehead and Greig, W.S. Agents.-W. Clerk.-(F.H.)

3d July 1850. SECOND DIVISION.

No. 224.-DAVID M'CUBBIN, Appellant, v. JAMES TURNBULL, Respondent-Et è contra.

Bankrupt Trustee, Competition for-Affidavit-In a competition for the trusteeship on a sequestrated estate, a party intending to object to the vote of Colin B. and Co., merchants in Huddersfield, lodged an objection to the vote of John B. and Co., and the sheriff repelled the objection simpliciter. Held that the objector was not entitled to object, on appeal, to the vote of Colin B. and Co., more especially as, among the claimants, was a firm of J. B. and Co., merchants in Manchester.

Bankrupt Trustee-Affidavit-In a competition for the trusteeship on the sequestrated estate of a firm, the name of which was also the names of the individual partners thereof, the objection to an affidavit, that it was contradictory, inasmuch as it bore that the company and the partners by name, "as such partners and as individuals," were indebted to the deponent, and that, notwithstanding, it proceeded to set forth that the deponent held "no other person, company or obligant, than the said" company, bound for the debt-Repelled, in respect that the oath, in the circumstances, sufficiently set forth that the individuals were bound for the debt. Bankrupt Affidavit-Voucher-Bill of Exchange-Vitiation -In a competition for the trusteeship on a bankrupt estate-1. a vote founded on a bill, the place of payment in which had been altered by scoring out the words "in London," without mention thereof in græmio; and, 2. a vote founded on a bill, in which the syllable "teen" was added, by interpolation, so as to read nineteen shillings, instead of nine shillings-Held bad.

Sequel of case reported ante, p. 469.

The decisions reported above having turned the balance in favour of M'Cubbin, Turnbull objected to the vote, for M'Cubbin, of Colin Brown and Company, designated, in their affidavit, as merchants in Huddersfield.

M'Cubbin objected to the competency of making the objection, in respect that the vote of Colin Brown and Company was not objected to before the sheriff No doubt an objection was lodged to the following effect"The vote of John Brown and Company: The affidavit is vitiated in essentialibus," but that was no objection to the vote for Colin Brown and Company The sheriff repelled the same, without any note stating the ground of his decision.

having been present at the calling, the justices pronounced as follows:

"Dismissed, and hereby dismiss, the present complaint, in respect of the absence of the pursuer."

The defender then raised a third action, in which, after hearing witnesses, decree was given against the pursuer, who raised the present action of reduction of the same, on the ground-1. That the third action was incompetent, in respect that the only course open to the defender, after the deliverance in the second action, was to have applied for a rehearing, on consignation. 2. On the ground of malice and oppression.

The Justice of Peace Small-Debt Act, 6 Geo. IV. c. 48, provides, § 8, that

"where absolvitor has passed in absence of the pursuer, it shall be competent for him, at any time within one calendar month thereafter, upon consigning 2s. 6d. in the hands of the clerk, to obtain a warrant, signed by the clerk, for citing the defender and witnesses for both parties; which warrant being served by a constable, or other police-officer, upon the defender, shall be an authority for having the matter re-heard at the next court day, or court day following, as hereby provided in the case of a rehearing at the instance of the defender-the 2s. 6d. so deposited being, in every case, previously paid over to the defender."

The defender replied-1. That the mode of procedure provided in § 8 was applicable only where decree of absolvitor was pronounced, and not in the case of dismissal of an action. 2. The second ground of reduction was denied.

The Lord Ordinary pronounced the following interlocutor:

"

"In respect the judgment of the justices of 8th October 1849 is not an absolvitor, but a mere dismissal of the complaint then before them, finds that the judgment of 22d October 1849, procreding upon a new complaint, was not incompetent under the statute 6 Geo. IV. c. 48: Finds that the said decree cannot be challenged on the merits, nor be brought under reduction in any form, without a relevant allegation of malice and oppression on the part of the justices: Finds that there are no facts and circumstances alleged sufficient to infer malice and oppression; and, therefore, sustains the defences, assoilzies the defender, and decerns: Finds the pursuer liable in expenses, and remits the account," &c.

With a note on the first point as follows:

"1. The first question is, whether the judgment of 22d October 1849 be within the statute. The pursuer says it is not; because, in consequence of the judgment of 8th October 1849, the only remedy was to obtain a warrant for a new citation, upon consigning 2s. 6d. Now, this is applicable to the case where absolvitor has passed in absence of the pursuer.' The judgment of 8th October 1849, however, is not an absolvitor, but merely a dismissal of the present complaint. Whether the pursuer of this action was entitled to have asked absolvitor from the justices, is a different matter. He did not obtain it; and, therefore, when the new application was made, there was no absolvitor from the demand, which, until reduced, might have rendered the new application incompetent.”

The pursuer reclaimed. At hearing on 29th JuneThe

pursuer pleaded-To dismiss an action, was quite different from granting absolvitor. A dismissal of the action shewed that the merits of the case were not considered, and were not intended to be considered. Under that deliverance, Bathie had not even power to obtain a rehearing, since no decree of absolvitor was pronounced; and it was only in case of such a decree that the statute made an application for a rehearing competent.

Lord Justice-Clerk-What are the justices entitled to do? Were they entitled to do anything else than to grant absolvitor? That is the question.

The defender replied-The justices might have been wrong. But it was not said that Flowerdew ever applied for decree of absolvitor instead of dismissal. The statute did not say, that, in case of a dismissal of the action, it should be necessary to apply for a rehearing, but merely allowed an application for a rehearing when there was an absolvitor.

Lord Moncreiff-It was intended by the statute to exclude all review, but it provides for a rehearing in certain cases. The argument of the defender is, that, because the action was dismissed, the whole matter remained open in a new action. That is not consistent with the view I take of the statute. The justices had not power to dismiss, reserving power to bring a new action.

Lord Medwyn. That will follow if your Lordship holds that the justices were, in the circumstances, bound to grant absolvitor. But I see nothing in the statute that says so. There is a great difference between absolvitor and dismissal. In the case of a decree of absolvitor, the process can be opened up; but I see no power to revive it when dismissed; and, therefore, if the action be dismissed, I think a new action is competent.

Lord Justice-Clerk.—I think the justices had no power to dismiss that they only had power to pronounce absolvitor. "At advising this day,

Lord Justice-Clerk..-The first point noticed in the Ordinary's note was the only question argued before us; because, if the objection therein mentioned is good, it supersedes the other point. That question relates to the competency and regularity of the procedure followed under the justices of peace smalldebt act.

I think it of great importance to keep in view, that the whole of their jurisdiction in civil debts is entirely statutory, and that the form and course of procedure are also exclusively of statutory origin. Common law jurisdiction they have none. Common law forms of process they have none. The two smalldebt justices of peace acts are not statutes which merely declare and provide a summary course of procedure for a court possessing large general jurisdiction, and ordinary forms and rules of process, many of which may still more or less be appealed to and applied. They create the jurisdiction. Every thing is statutory under the justice of peace small-debt acts; and there is nothing to appeal to in support of any procedure not marked out by the statute. Further, I apprehend that it is our duty very strictly to keep this jurisdiction to the objects for which alone such summary off-hand decision of civil causes is sanctioned--viz. clear summary decisive procedure in the way pointed out for bringing the matter to decree one way or other. This is the great benefit intended; and, with the remedy for rehearing in the event of absence, is what alone recommends such a tribunal, even for small debts. Accordingly, the 2d section gives the justices power to hear, try, and determine, all causes concerning the recovery of debts under £5, in a summary way, as more particularly hereinafter mentioned. Thus, they can only act in the way and course of procedure allowed by the statute.

Then the form of the complaints is very specially prescribed, and the Court has always very strictly enforced this comparatively unimportant, but distinct, part of the statute-for by following this form alone is the cause competent. Then, if the party defender does not appear, it is said he is to be cited again, with certification that he will be held as confessing the debt. Then the justices are to hear viva voce. Again, it is said, that if the defender does not appear, he shall be held as confessing the debt, unless proper excuse for absence is made. Then follows the 8th section-(reads.)

I think it is very plain, 1. that two courses of procedure, in the event of the absence of parties, are here contemplatedand only two-each adapted to the absence of pursuer and defender respectively; and, 2. that one and the same remedy is permitted and held appropriate in each case-viz. rehearing under conditions. In the event of the absence of the defender without excuse, decree against him must, I apprehend, be given. No other form is contemplated-none other is appropriate. This is a decree exhausting the cause-terminating the whole matter in the only proper way for a summary jurisdictionpreventing delay-preventing vexatious and protracted procedure and rehearing, under the condition of consignation,

is allowed, to prevent injustice on the one hand, but in such form as to exclude other process, and to insure recovery at once if the decree is adhered to. We cannot reason as to this from our ordinary process; for, though the charge has been given, and the time for reclaiming at common law past, yet rehearing is allowed without any other revival of the suit than the application for rehearing with consignation. So also in the case of the absence of the pursuer. Decree of absolvitor is spoken of as the necessary procedure-the decree which, as a matter of course, the statute assumes must have passed as the only thing to be done. That terminates the cause, unless an application within one month, for rehearing, be made, on consignation of a small sum for the expense thereof; and that also revives the case at once, provided that sum is paid over to the defender. I am clearly of opinion that, in these two cases, decrees against the defender, or of absolvitor, are the only courses which it is open to pursue; and that the only remedy, in the event of such decree being given, is rehearing, under the conditions specified. Looking to the 10th section, which speaks of final judgment or decree, I much doubt whether, on the merits, an interlocutor dismissing the process would be competent. But such a course, in the absence of the pursuer, who has failed to appear, is, in my opinion, clearly out of the statute, and might lead to a defender being subjected, without redress, to endless and vexatious actions as to the same matter. Here, there were two actions dismissed merely, without even expenses being given though the pursuer failed without excuse to appear. I am satisfied that this is not in conformity with the spirit or terms of the statute.

I am confirmed in this view by the 14th section, which, in excluding review, speaks of decrees, and decrees alone. Is an interlocutor dismissing an action, because the pursuer is absent, but not finding expenses due, a decree or not? If not, it is not protected from review-which would be a reductio ad absurdum. The Dean of Faculty was very chary of calling such an interlocutor a decree under this statute-and, I think, very wisely, for nothing could follow on it such as would follow on every decree contemplated by the act. The junior counsel, who, in his absence, replied, very boldly maintained, that while there was an essential distinction, he said, between a decree of absolvitor and a judgment dismissing the action, yet this was a proper decree under the 14th section. I think the first part of his proposition was sound, and the second untenable.

Again, the 16th section affords a very striking illustration. One justice of the peace, if more do not attend, may yet act to a certain extent may hold a court for the purpose of calling the roll-pronouncing decrees in absence-receiving returns of executions-granting warrants for citation de novo, but for no other purpose-which decrees in absence shall be as good as if issued by two or more. Now, an interlocutor dismissing a process is something less than a decree of absolvitor: Yet that, clearly, one justice of the peace could not do. But the clause enabling one justice of the peace to act, clearly holds that decree in absence is the only way of terminating a cause not insisted in, or not defended-such being a course which necessarily brings the dispute wholly and conclusively to an end, unless rehearing is applied for under conditions and so follows out, in the only proper and consistent way, the end of summary jurisdictionviz. a speedy, final, and conclusive decision, which puts an end to the demand or to the refusal to pay conclusively. This is the proper termination, under the statute, of such a process once sued out. Hence, I think the second process incompetent. Whether the pursuer in the small-debt court might have taken this interlocutor dismissing the action to have been an absolvitor, and applied for a rehearing at least on the ground, inter alia, that it was not the correct form, and so, a fortiori, that he ought to have a rehearing-I need not consider.. This series of actions, when I think one must be brought, under the statute, to a termination in the way I have mentioned, is, I think, incompetent.

Lord Moncreiff-The judgment pronounced by the justices on the first complaint by Bathie against Flowerdew, appears to be foreign to the present question. It is necessary to observe this, to prevent confusion. It related to a quantity of hay alleged to have been delivered to Flowerdew. But it having been explained, or supposed, that there was a mistake in this hay being mentioned, when straw was intendedthe justices dismissed that complaint, reserving to the pursuer to bring a new action. That might be competent or notthough I doubt whether even that was a correct judgment

under the statute. Another action, on account of a different article alleged to have been furnished, must, at any rate, have been competent. Such an action was brought for the price of straw; and it is with what followed upon that only, that we have to deal.

When that case was called, the pursuer failed to appear. The only regular course then was, that the justices should pronounce decree of absolvitor in absence. But the justices expressed their deliverance thus-"Dismissed, and hereby dis miss, the present complaint, in respect of the absence of the pursuer." The single reason for this judgment was the absence of the pursueT. Consequently, in its substance, it could be nothing, in my apprehension, but a decree of absolvitor in absence, if it was at all a competent judgment. For I apprehend that the justices had no power to dismiss an action, with a view to another action being raised on the very same matter. This was quite different from the previous deliverance on the action for the price of hay, whether that deliverance was exactly competent or not. Perhaps it was this which led the clerk to write the judgment in the new action in such terms. But, however this may be, I think it clear that the justices were bound to pronounce B judgment substantially of absolvitor in that second case; and that it must be held that they intended to do so, and actually ⚫ did it, as it was the only competent judgment, whatever form of words may have been employed.

Beyond all doubt, there was a judgment for the defender on that second action-a judgment in respect of the absence of the pursuer-but still a judgment, and, in some sense, a decree. Now, the question is, in what manner was it competent to bring that sentence under review? We must remember that it was a case under the small-debt statute 6 Geo. IV. c. 48, § 14, whereby all review of any decree of the justices, by advocation, suspension, or reduction, is excluded-or by appeal, except in the case of consignation for rehearing, as before provided. Then, can it be said that this judgment dismissing the action, which was necessarily final between the parties as to the matter of the action, unless opened by the proviso for rehearing under the 8th section, was not a decree to which the privilege of that proviso must extend? Are we, on the one hand, to say that a pursuer, who has had his action so put an end to, shall be deprived altogether of his opportunity of rehearing, because of the form of words employed? Or shall we, on the other hand, hold and promulgate to all litigants in the small-debt courts, that whenever a clerk shall write the judgment for a defender as a dismissal of the action, instead of an absolvitor or assolieing of the defender, the whole spirit and purpose of the statute for speedy justice shall be defeated, and a pursuer may harrass a defender by as many actions to the same effect as he chooses! There is no limit to it. But the fatal answer is, that the statute has not permitted any such thing as successive actions for the same thing; but has, on the contrary, provided a special mode of review, which alone is declared to be competent, as well to the pursuer as to the defender.

If that has not been taken, the judgment is final. And if the pursuer will treat this as not a decree of absolvitor, of which he could have obtained a rehearing under the 8th section of the statute, the only consequence must be, that he has shut himself out from that remedy, and that the new action, and the judgment in it, are equally incompetent.

I am therefore of opinion, that the interlocutor ought to be altered in the first part of it, and that it ought to be found that the new complaint, and the judgment upon it of the 22d October 1849, were incompetent, and that the defender was entitled to be assoilzied therefrom.

Lord Medwyn. I was anxious to hear the opinion of your Lordships, and I do not differ from it in holding the form of dismissing the action was incompetent. But Mr. Flowerdew was in court, and might have had his absolvitor if he had thought it necessary. If he allowed the action to be dismissed, I think it is hard to hold the pursuer of the complaint bound to look on two things as one and the same. At the same time, I think it will be advantageous to the country to see the result at which your Lordships have arrived.

Lord Cockburn.-I agree with the majority. What is it that takes place? The defender raised his first action, which is called, but he chooses not to go on with it. Then the action is dismissed, under reservation to him to bring a new action, That is a style of interlocutor which I never heard of before and I would advise the justices to avoid it in future. The defender raises a fresh action, and, as he is absent when it is