up, except about £3400; that the respondents had paid to the Wishaw proprietors the half-yearly dividend due on the guaranteed shares on 2d August 1849, but had failed to pay that due on 2d February 1850, amounting on the whole guaranteed stock to £12,600; that the individual petitioners were, at the date of the purchase act, proprietors of above 2500 shares in the capital stock of the Wishaw and Coltness Railway Company, and became entitled, on the passing of that act, to a corresponding number of Caledonian Railway (Wishaw and Coltness) guaranteed shares of equal amount, and the petitioners were still owners and holders of the said shares, the calls on which had been wholly paid up. The dividend on these shares, amounting to above £3500, had been in arrear for upwards of three months.

The respondents pleaded-The statutory conveyance had never been executed. Under the statute, the only parties entitled to make such an application as the present, were the holders of Caledonian (Wishaw and Coltness) guaranteed shares. The individual petitioners designed themselves as such, but the cther party petitioning was a corporation, the Wishaw and Coltness Company. Now, so long as that corporation existed, there could be no guaranteed Caledonian shareholders; and, on the other hand, when the guaranteed shareholders were created, the corporation must be at an end, so that the title was in itself inconsistent. It could not be said that the respondents had anticipated their title under the statute-and, as being in fact in possession under it, were barred from objecting to the petitioner's title. The respondents originally entered into possession under the working contract, which was perfectly legal and competent, and their present was merely a continuation of that original possession. No doubt the case might have been different had the delay in the execution of the conveyance been attributable to the fault of the respondents, but here all the fault was on the other side. When the draft was sent to them in October 1849, the Wishaw Company refused to execute it-and that for their own interest, as the execution of it would have destroyed their corporate existence, and so precluded their application to parliament. On the other hand, the correspondence produced shewed that the respondents were most pressing for the execution of the contract. No doubt, when their new bill was lost, the Wishaw Company expressed their desire for an immediate execution of the conveyance. But, before executing it, the respondents were entitled to know what was the state of the affairs of the Wishaw Company. The respondents were only bound to take their estate as it existed at the date of the purchase act, not as it might have been since diminished. No account had been given of the moneys ntromitted with by the Wishaw Company since the purchase act, or of the state of their affairs as at that late. Nor had the title-deeds been exhibited, nor the lebenture or mortgage registers, nor any other documents necessary to instruct what property, funds, or unexecuted powers, were to vest in the respondents, or the debts and liabilities to which they were to be subject when the conveyance should have been executed. The respondents had not been furnished with any statement of the Wishaw Company's affairs down to a later date

than 30th December 1848; and, according to the balance-sheet of the company as at that date, there was then unpaid of the capital stock, on which the dividends under the purchase act were payable, the sum of £11,725. The Wishaw Company had, since the purchase act, issued a circular to their shareholders, calling up this arrear, and had not accounted to the respondents for the sums received. Lastly, the respondents, in fact, were not in arrear at all to the petitioners. For the debentures, which were to be made over to the respondents after paying the Wishaw debt, amounted to a much larger sum than the half-year's dividend; and, until these debentures were delivered, and the accounts between the parties settled, this money was not due.

The petitioners answered―That if—and there was no doubt of the fact-the dividends had remained unpaid for the statutory period, the petitioners were not to be barred, in seeking their remedy, by any objection in point of form.-Glasgow, Garnkirk, and Coatbridge Railway Co. v. Caledonian Railway Co. 11th June 1850, ante, p. 437. In the first instance, no doubt, the petitioners had declined to sign the conveyance; but that was only that they might retain their status to appear in parliament, and no patrimonial injury had accrued to the respondents therefrom, since they already had full possession of the Wishaw line. But, at any rate, since 1st June 1850, the respondents alone had been to blame for the delay in the execution of the conveyance, and there was no reason why they should now object to execute it at once. The debentures, the balance of which were claimed by the respondents, were put into Mr. Moncrieff's hands, in order, first, to pay the Wishaw debt, and to make over whatever remained, to the respondents; but it now appeared that the whole would be required for the Wishaw debt, so that the respondents could not found on the non-delivery of the debentures as a set-off against the arrears due to the petitioners.

Lord Justice-General.-As at present advised, I cannot think that the judgment in the case of the Garnkirk railway can be held to rule the present case out and out, for I think there is a difference in the circumstances, and in the acts on which the petition proceeds. In the Garnkirk case, there was an agreement, on which an actual transfer of the railway had taken place; the Caledonian Company had entered into possession, and regulated matters as if from the beginning they had been actual proprietors. There was a provision in the statute, that if the annuity, under burden of which the Garnkirk railway was held, should remain unpaid for a certain time, they might apply for a judicial factor. Accordingly, that was the shape in which the case was brought here; and it was said that the petitioners were not in a situation to apply for a judicial factor, inasmuch as no conveyance had been executed, but it was not denied that a real transfer had taken place. In these circumstances, we said, Though this matter of form has not been completed, you shall proceed to execute the conveyance at once, and we shall appoint a judicial factor. But this is not the same case, for, in the first place, it is quite clear that the Wishaw and Coltness is no longer a company in existence, if the act has been car ried into execution. Then, as to the agreements, we have here a minute of agreement and a working contract; but these are transactions which might have been good and binding transactions if no act bad ever been passed at all. Then they did afterwards apply for a statute, and get it. But if we look at that act, the clause is quite clear, that the Wishaw Company shall execute a deed of conveyance, and thereupon that company shall cease to exist. That is expressly provided, so that, if we are to look to the act, and pay any attention to its provisions, that the company, from the making of that conveyance, is to cease and determine, what right can these parties have to come here as they do? This is an application at the instance of certain private persons, and of the company also. But, as a company, no

conveyance has not been granted-and, therefore, we shall delay the case for a day or two in order that the conveyance may be executed. Now, that is just the case here, barring the question of accounting. No doubt the statute provides that the company shall be extinguished; but, in regard to the rights of these individual shareholders, the effect remains the same. The obligation to register was on the Caledonian Company, so that they cannot object to the want of registration It was argued in the previous case, that the possession was merely a continuation of the previous possession; and we held that the possession subsequent to the passing of the statute must be held to be under the statute. I have the greatest doubt whether, after the statute has once passed, we could hold the possession to be under the agreement at all; and 1 see, in the act, it is specially provided, that, after the date of the statute, the agreement shall cease and determine. It is par fectly clear, then, that the amalgamation of the companies takes place from the date of the statute. Thus any question that can arise must be under the statute. No doubt the statute says that certain things must be done; but the only question to be, what is to be the kind of conveyance to be executed. I must hold that the respondents have possession under the sta tute. They have dealt with it under the statute, just as in the other case; and so the question just comes to be, how shall the terms of this conveyance be settled. The failure to regis ter undoubtedly lies with the respondents. As I said before, I see no great difference between this and the Garnkirk case Both parties, however, seem now to be ready, and are just waiting for the accounts to settle the terms of the conveyance If the accounts were once cleared up, I do not think there would be any difficulty in the matter.

Lord Cuninghame. Such cases as these must always be spe cial ones, and the present differs essentially from the Garnkirk case. At all events, it is quite clear, from what has taken place, that this application should not be granted hoc tata The agreement was to regulate the rights of parties until the statute passed, and when that passed, the agreement was s perseded to a considerable extent; and if it had been the cass that the parties had waited from the passing of the act u July next, without taking any steps under the statute, I shoul not have objected to appoint a factor as craved. But if clear, as regards nine-tenths of this delay, the petitiones themselves are in fault. The draft conveyance is sent to the but they refuse to execute it, because they want to go to par liament to get a new act. Every case must go on its ope cialties, but I think the circumstances here are not sh to lead us to take this case out of the legal and statutory o The first proposal on the part of the petitioners to execute the conveyance is made on 1st June last; from that time the re cord is entirely closed. Can it be said that, in a matter of s much importance, a delay of five or six weeks is so indelen sible? I do not go so far as to hold that the petitioners an altogether foreclosed under § 3, and that, till they are reg tered as guaranteed shareholders, they cannot get over a quibbles or frivolous objections on the part of the responden The Court will see to that; but, in the present circumstanc I think we should allow time.

Lord Advocate-We are quite ready to explain a the objections stated by the respondents, if the Cour will allow us to give in replies.

Lord Justice-General.-I think we should refuse the petiti hoc statu.

Inglis I understand the case is out of Court your Lordships' decision. This is a question of title. Lord Justice General.-No. I am not for overturning t application altogether.

Lord Fullerton.-The view I take would lead me to superse in the meantime.

The Court pronounced the following interlocutor: "Supersede the further consideration of the cause till Session."

Act. Lord Advocate (Rutherfurd), Cowan, Mackenzie: mahoy and Wood, W.S. Agents.-Alt. Patton, Inglis; Ho Oliphant and Mackay, W.S. Agents.-L. Clerk-(W.G.T.)

Jury

FIRST DIVISION.

(Omitted of its proper date)-28th June 1850. No. 237.-WILLIAM Edwards, Pursuer, v. WILLIAM BEGBIE and others, Defenders. Cause-Reparation-Summons-Relevancy-PrivilegeIssue-In an action of damages against the vestry of an Episcopal Chapel, for having expelled the pursuer from the office of vestryman, and against them and the minister for publication of the sentence of expulsion-Terms of a summons which found relevant to go to trial; but held that the case was one of privilege; and terms of issues approved of accordingly.

The pursuer was, in 1846, elected a member of the vestry of St. Paul's Episcopal Chapel, Carrubber's Close, Edinburgh, in connection with the Scottish Episcopal Church. The affairs of this chapel had been, since 1822, regulated by a formal deed of constitution, to which the congregation, the then Bishop of the dioeese, and the trustees of the Scots Episcopal Fund (the proprietors of the chapel), were parties. Under the deed of constitution, the rights and duties of the vestry were, inter alia, as follows:

(1st.) They had the right to appoint the clergyman, and to name an assistant. (2d.) The sole power of fixing the salary to be paid to the clergyman, as well as those of the clerk, beadles, and other servants of the chapel. (3d.) They "have the power of letting the seats, of fixing the seat-rents, uplifting the same, letting the vaults or houses under the chapel, and receiving the rents thereof, and also the offerings and collections." (4th.) They had the sole right of appointment and dismissal of the clerk, beadles, and all the other servants of the chapel.

By article 3 of the deed of constitution it was provided, that the office of vestryman should be held for life, or good behaviour, but might be vacated by resignation, &c. By article 4 it was provided

"A vacancy in the place of vestryman may be declared in case of scandalous immorality or delinquency of any member, such vacancy to supervene upon a vote of the majority of the memers, proceeding according to equity and conscience. But from heir vote, should such vestryman think himself aggrieved, there hall be an appeal to the Bishop of the diocese."

By article 19 it was declared, that all meetings of the estry should be called by the treasurer, or by two nembers, "the purpose of the meeting to be menioned at calling the same;" and by article 23, that 'three members shall be a quorum of the vestry."

In March 1847, the vestry consisted of the pursuer, Mr. Muir the treasurer, and the defenders, Begbie, Wilson, and Houlden. Houlden had, on 22d Decemer preceding, sent in a letter of resignation, which, lowever, had not been accepted.

At a meeting of vestry held on 26th March 1847, he pursuer was expelled from the office of vestryman, nd the sentence was, on the following Sunday, intinated from the pulpit by the defender, the Rev. Dr. West, interim minister of the chapel. The pursuer ppealed to the Bishop against the sentence of the estry, and, pending the appeal, presented an applicaion for suspension of the sentence, on the ground, inter lia, that there was not a quorum at the alleged meeting f vestry, at which the sentence was pronounced, in repect the meeting consisted only of three persons, one of whom, Houlden, had resigned.

The Lord Ordinary pronounced the following inter

ocutor:

"In respect that, by the constitution and title of the chapel, unded on by the complainer, an appeal is competent to the Bishop of the ecclesiastical diocese, to which the Episcopal Chapel Carrubber's Close is attached, and that such appeal has been "tually taken, refuses this note of suspension."

SCOTTISH JURIST.

To this interlocutor the Court adhered-See ante, vol. xix. p. 608.

The Bishop subsequently pronounced as follows:--"That the notice or notices served on the appellant (pursuer) were not specific nor timely; and, consequently, that the note for expulsion was not, as required by the constitution of the chapel, according to equity; therefore, sustains the appeal, and reverses the sentence of expulsion appealed against."

The present action of damages was brought by the pursuer against Begbie, Houlden, Wilson, Boyd, Stevenson, and Dr. West, the summons in which set forth, that the pursuer

"had found it to be his duty to bring under the notice of the Bishop of the diocese and vestry, circumstances connected with the conduct of the Rev. G. M. West, and it would appear that, by doing so, he had given dissatisfaction to some of the other members of the vestry: That, in particular, Messrs. Wilson and Begbie having conceived groundless ill-will and malice against the pursuer, issued and circulated, or caused to be issued and circulated, to the members of the vestry, a notice dated 22d March, containing a false, calumnious, and malicious statement in the following terms-Business-To demand the expulsion of William Edwards from the office of a vestryman, on the charges of gross lying and falsehood, to be preferred and substantiated by Mr. Wilson against him the said William Edwards,' &c.—which notice is holograph of J. Stevenson, 1 Salisbury Square, Edinburgh, a person acting in the capacity of what was called 'vestryclerk' but which office is not recognized in the deed of constitution, and from which he had therefore been previously dismissed. The said last meeting did not take place, on account of the indisposition of the said John Muir, treasurer: But Messrs. Begbie and Wilson, and the said J. Stevenson, next called a pretended meeting of vestry, to be held 26th March, the notice written by Stevenson, and signed by Begbie and Wilson, being dated 25th March, and stating-Business-To increase the members of the vestry, and to require the expulsion of William Edwards therefrom.' The notice was received by the pursuer on 26th March, at 10 o'clock forenoon-the meeting itself being to take place at 11 o'clock; and the pursuer waited on the said John Muir, treasurer, and having ascertained that he was unable to attend, he stated to the Rev. G. M. West, then present, that he could not attend, in consequence of a previous engagement at the Commercial Bank, and Mr. Muir desired the said G. M. West to deliver a message to Messrs. Begbie and Wilson, the other two vestrymen, which he agreed to do, that as there were only other two vestrymen, in absence of the pursuer and himself, no legal meeting of vestry could take place: That although thus warned that there could be no legal meeting of the vestry, Messrs, Begbie and Wilson did, in furtherance of their malicious feelings towards the pursuer, aided and abetted by Mr. Houlden, who had previously resigned, illegally and irregularly hold a pretended meeting of the vestry, at which, in the absence of the pursuer, they pronounced, and caused to be engrossed in a minute, a resolution or sentence containing false, calumnious, and malicious statements, deeply affecting the character of the pursuer, which is in the following terms:

"MINUTES of a meeting of the vestry of St. Paul's Episcopal Chapel, Carrubber's Close, Edinburgh, held this 26th March 1847, called by Messrs. Begbie and Wilson-Present-Messrs. Begbie, Wilson, and Houlden, and the Rev. Dr. West-John Stevenson, clerk. Mr. Begbie was elected chairman. The meeting then proceeded to the election of a vestryman, when Mr. Wilson proposed Mr. John Boyd to the office, and agreed to by the meeting-and who being present, accepted office, and took his seat at the board. Mr. Wilson then preferred the following charges against William Edwards, one of the vestry, and presently residing in Prospect Buildings, Abbey, viz.-(Here follow four charges of falsehood against the pursuer, and the proof adduced)— And all which charges being fully proved to the satisfaction of the meeting, Mr. Wilson moved the expulsion of the said William Edwards from the office of a vestryman, as being unworthy to take any part in the business and councils of God's house-and which being seconded by Mr. Boyd, was unanimously carried. And the vestry accordingly expelled the said William Edwards, and directed that notice thereof should be sent to him, and that Dr. West be requested to intimate the same to the congregation on Sunday.

'W. BEGBIE. THOMAS HOULDEN. A. L. WILSON. J. BOYD.' VOL. XXII.-No. XXXV.