TENNANT r.

he knew of any damage, to get him to say that which he conceived would be the next best evidence, but which, in fact, HAMILTON, would be no evidence at all. If the witness had answered in the affirmative, that he had known of money being paid for alleged damage, it would be no evidence; because money paid upon a complaint made, paid merely to purchase peace, is no proof that the demand is well founded; it is not, therefore, to be given in evidence in support of the fact of damage being sustained.

Upon general principles, the rule of law in this country and in Scotland must be the same: if a pursuer calls a witness, and asks him as to money being paid for alleged damage, his answer in the affirmative is not evidence of actual damage. If the pursuer had made a claim upon the owners of the manufactory for damage done to his field from the smoke and vapour emitted, and the owners had given money to quiet his complaint, that would be no evidence of the damage; it is money paid to buy peace and to stop complaint; it is very often a wise thing, however unfounded a complaint may be, for parties to pay a sum of money in order to quiet the party making the complaint. But this does not rest merely upon general principles. The rule of law in this country has been cited by the appellants; and from the authorities cited by them, it appears there is no distinction between the two countries in this respect.

The question clearly could not be put in order to elicit evidence for the party making the complaint; but it is said it was admissible. in order to test the credit of the witness. Now the witness had said nothing in his examination by the party for whom he was called, touching this matter. He had spoken of other properties, but he had said nothing which could lead to this cross-examination, and therefore it was not for the purpose of testing the accuracy or truth of anything he had said. The question cannot be supported upon that ground, nor was that the ground, as I understood the argument, upon which it was attempted to be supported, but that it might be put as a matter of inquiry, with a view to test the witness's credit. But if it be not evidence, it is an inquiry perfectly collateral; an inquiry into a matter which was not relevant to the subject-matter in dispute. It does not relate to the subject-matter; and it is an acknowledged law of evidence that you cannot go into an irrelevant inquiry for the purpose of raising a collateral issue to discredit a witness produced on the other side.

On these grounds the learned Judge who tried the cause was of opinion that the question was not admissible under the

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TENNANT circumstances of this examination; and to that ruling of the learned HAMILTON. Judge,--unfortunately for all parties, because leading to great and unnecessary expense, -a bill of exceptions was tendered, and the Court of Session was of opinion that the question was admissible. The party against whom that decision was made necessarily came here in order to have that judgment considered; because the Court of Session, being of opinion that the ruling of the learned Judge before whom the issue had been tried was erroneous, and that the bill of exceptions was well founded, *had no alternative but to direct a venire de novo. It was necessary that the case should be tried again in consequence of the Court of Session coming to that opinion, however unimportant the point might be; so that there was to be a fresh inquiry upon a point which could not affect the question one way or the other, whether the jury had or had not come to a right conclusion upon the evidence produced before them; but assuming that they had,-(if they had not there would be ground for a motion for a new trial, and in that way, if there had been a failure in the jury trial, the parties might have had an opportunity of trying the case over again ;)—but assuming that the jury had come to a right conclusion upon the matter before them, there is to be a new trial upon a point of evidence which, in whatever way the witness answered, could not, in my opinion at least, affect the result.

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It is very unfortunate when cases take that turn, and protracted litigation ensues upon points which have not the slightest bearing upon the result of the case. In this country much depends, in reference to tendering bills of exceptions, upon those who have the conduct of the cause; and though it is competent for counsel to tender bills of exceptions, it is, in practice, reserved only for cases of great importance, where the real question between the parties is conceived to turn upon the point, and where it requires the adjudication of the Court to set them right. It is a matter to be regretted that the rule which prevails so beneficially in this country, of reserving that course of proceeding only for cases that really deserve it, is not followed in Scotland. This case is an example of the evil which must flow from the too liberal use by the suitor of the right of tendering a bill of exceptions, and calling in question the ruling of a court of justice.

I have no doubt that this was a question which, under the circumstances, it was not competent for the pursuer to put, and that the learned Judge who tried the cause came to a right

conclusion upon the evidence, and the bill of exceptions upon that point ought to be disallowed. Under these circumstances I move your Lordships to reverse the interlocutor appealed from, which decided that the learned Judge who tried the issue had not properly ruled.

It was accordingly ordered that the interlocutor complained of in the appeal be reversed, and that the cause be remitted to the Court of Session, with directions to disallow the bill of exceptions, to determine all questions of expenses between the parties in the said Court, and to proceed otherwise in the said causes as shall be just, &c.

TENNANT

v.

HAMILTON.

GIBSON v. ROSS.

(7 Clark & Finnelly, 241-260.)

Corporation school.

The rules of law applicable to the managers of a public establishment, do not apply to one formed and maintained from private funds, though it may be formed and maintained under a royal charter of incorporation.

The appointment to an office in a private establishment is not, therefore, necessarily an appointment ad vitam aut culpam, but depends in each instance on the particular circumstances under which it was made.

THE respondents were the managers or directors of the academy of Tain, in Ross-shire, an institution established and supported by private contribution; and the question at issue regarded the right or power of the respondents, as directors, to remove one of the teachers of the name of Gibson (the appellant).

The want of any preparatory institution for purposes of education, had formerly occasioned much inconvenience in the north of Scotland. Hence, the plan of an academy at Tain was projected, and at once met with the highest encouragement. A leading part, in originating and carrying through the measure, was taken by Lord Seaforth and Lord Reay; and these noblemen were cordially supported by the most opulent and influential classes of the community. Subscriptions, to a considerable amount, were speedily obtained; a large plot of ground was gratuitously presented to the promoters of the scheme; *and in May, 1809, a royal charter was obtained, embodying the managers or directors into a corporation, with a right of perpetuity and succession, and all the customary legal privileges incident to a society so constituted.

Throughout the district of country which was expected to be benefited by this institution, there were regular parochial schools,

1840. March 2.

Lord

COTTENHAM,

L.C.

[241]

[ *242 ]

GIBSON

ሀ.

Ross.

[ *243 ]

and in the towns burghal schools, or, as they are called, grammar schools; being all public institutions of ancient standing, subject to special rules, and governed, in their whole economy, by the statute and common law of the land.

The charter declares the object and purposes of the society to be the foundation and endowment of an academy for the instruction of youth within the burgh of Tain; and it proceeds to constitute and incorporate certain individuals and heads of public bodies, to the number of 21, with 13 persons to be elected, besides every subscriber to the amount of 50l., and the heir-male of subscribers to the amount of 100l., into one body, politic or corporate, by the name and title of the "Managers and Directors of the Tain Academy," who are empowered to conduct the whole business and affairs of the institution.

By this name and title, those persons are empowered to buy, take, hold and enjoy lands, tenements and hereditaments, goods, chattels, donations and legacies, to sue, plead and defend, and to be sued, impleaded and defended in any courts of justice; and farther, "to appoint treasurers, stewards, factors, cashiers, and other necessary officers, for them to act, and to have and use a common seal, and the same to change from time to time, as shall seem expedient to the said incorporation; and otherwise, and in all other things, to act and do as is permitted by law, and as is usual in the case of persons incorporated, and with all the privileges incident to such incorporations."

There is a power of making bye-laws, given by a clause which confers on the subscribers, being members of the corporation, and their successors, "full power to make such other and so many byelaws, regulations, rules and orders, as they, or the majority of them present at such meetings, shall judge proper and think necessary for the better government and direction of the said academy. And the said regulations herein above recited, as well as the bye-laws, regulations, rules and orders to be made in future, or any of them, to alter and annul, as they the members of the said incorporation so assembled, or the major part of them present, shall deem proper and requisite provided always, that when any new bye-law, or any alteration in any of the then existing bye-laws, shall be intended to be made at any such annual meeting as aforesaid, notice of such intention shall be inserted in one or more of the London evening newspapers, and in one or more of the Edinburgh newspapers, one month at the least previous to the day of such meeting. And we

:

will and direct that all bye-laws, regulations, rules and orders, made as aforesaid, shall, until altered, be duly observed and kept, provided that the same are noways contrary to the laws of the realm, and the general purport and meaning of our said charter and letters patent."

The charter bears date in 1809, and the first advertisement for teachers was published in the newspapers in August, 1812. The advertisement set forth, generally, the nature of the new establishment, as having been erected by private contributions. "A royal charter (it was stated) was obtained, constituting the directors of the academy a body corporate, *with power to appoint all the teachers, and to enact bye-laws, for the internal regulation of the academy. Various persons came forward and offered themselves as candidates for the different situations of teachers in the academy. But, in the meantime, some alterations were judged necessary by the directors to be made upon the rules introduced by the charter, and some additional provisions as to the hours of attendance, school fees, and periodical examinations, and other such matters not referred to in the charter. Accordingly a draft of these bye-laws and regulations was produced to a meeting of the directors, held on the 13th of October, 1812, and considered by them. The directors approved of them as they stood, and adopted them as interim regulations, but referred the question as to their final adoption to a general meeting to be held in April.

The first of these proposed bye-laws declared that “in the election of teachers, the directors are to be guided by a regard to the character and abilities of the candidates, as certified by the testimonials of competent and respectable judges; and for this purpose, the directors shall, if they think it necessary, request some of the professors of any of the Scottish Universities to examine the candidates, and report their judgment of their respective qualifications."

In conducting the election, the directors determined, in the first place, merely to designate by ballot such persons as should be approved of, but to make their election dependent on the result of an examination or trial to be undergone by them, in presence of Principal Baird and two professors of the University of Edinburgh, and also on their express agreement to be bound by the charter and bye-laws.

Accordingly, the teachers being balloted for at the general meeting of the directors, which was held on the 16th December, 1812,

*

GIBSON

v.

Ross.

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[ *245]