OF CASES BEFORE THE HIGH COURT AND CIRCUIT COURTS OF JUSTICIARY IN SCOTLAND, FROM 3 JANUARY 1838 TO 23 DECEMBER 1841. BY ARCHIBALD SWINTON, ESQ. ADVOCATE. VOL. II. EDINBURGH: THOMAS CLARK, LAW-BOOKSELLER. MDCCCXLII. PREFACE. THE present volume, taken in connexion with that previously published, extends these Reports over a period of upwards of six years, namely, from November 1835 to the close of 1841. No exertion has been spared to render the work a complete and accurate record of all important legal questions which have occurred during that period, in the Justiciary Court, either in Edinburgh, or on the Circuits. In consequence of the unavoidable absence of the Reporter from Scotland, during a portion of the time embraced in the present volume, namely, from July 1840 to November 1841, it is possible that some cases which ought to have been reported, may have been omitted. Should this be the case, it is hoped that the circumstances under which this part of the publication has been compiled will afford a sufficient apology. For the materials comprising this portion of the work, he is indebted, principally, to the talents and industry of his friend Mr. Archibald Broun, Advocate. The present Reporter's connexion with the work is not to extend beyond the close of this volume. He cannot dismiss the task in which he has been engaged, without expressing his warmest acknowledgments, for the valuable encouragement and assistance which he has received in its performance, from the Lord Justice General, and the other Judges of the Court of Justiciary, from the various Gentle men who have filled the offices of Crown Counsel, and from many others of his friends at the Bar. The views with which the publication was undertaken, have been amply realized by the opinion of those best qualified to judge of the utility of such a work. And, in retiring from an employment in which he has experienced much satisfaction, the Reporter has the fullest confidence that his place will be ably filled by Mr. Broun, by whom these Reports will be regularly continued. 9. GLOUCESTER PLACE, Edinburgh, 1st March 1842. OF THE COURT OF JUSTICIARY DURING THE PERIOD OF THESE REPORTS. LORD JUSTICE GENERAL, 1837. THE RIGHT HONOURABLE CHARLES HOPE, (Resigned in October 1841.) 1841. THE RIGHT HONOURABLE DAVID BOYLE. LORD JUSTICE CLERK, 1811. THE RIGHT HONOURABLE DAVID BOYLE, (Appointed Lord JusticeGeneral and Lord President of the Court of Session, in October 1841.) 1841. JOHN HOPE. LORDS COMMISSIONERS OF JUSTICIARY, 1819. ALEXANDER MACONOCHIE, LORD MEADOWBANK. 1824. JOSHUA HENRY MACKENZIE, LORD MACKENZIE. 1829. SIR JAMES WELLWOOD MONCREIFF, BART., LORD MON. CREIFF. 1830. JOHN HAY FORBES, LORD MEDWYN. 1837. HENRY COCKBURN, LORD COCKBURN. LORD ADVOCATE, 1835. JOHN ARCHIBALD MURRAY, (Appointed a Lord of Session in April 1839.) 1839. ANDREW RUTHERFURD,-Succeeded in September 1841, by THE RIGHT HONOURABLE SIR WILLIAM RAE, BARONET. SOLICITOR GENERAL, 1837. ANDREW RUTHERFURD, (Appointed Lord Advocate in April 1839.) 1839. JAMES IVORY, (Appointed a Lord of Session in May 1840.) 1840. THOMAS MAITLAND,-Succeeded in September 1841, by DUNCAN M'NEILL |