XV.

NOTES TAKEN AT ADVISING THE ACTION OF DEFAMATION AND DAMAGES, ALEXANDER CUNNINGHAM, JEWELLER, EDINBURGH, AGAINST MR. JAMES RUSSELL, SURGEON THERE.

This jeu d'esprit is generally understood,—indeed we believe there can be no doubt on the subject,-to have been written by George Cranstoun, Esquire, afterwards Lord Corehouse, whose recent retirement from the seat of justice has been deeply regretted by the legal profession,-in truth it is a loss that cannot easily be repaired. It was printed in the Scots Magazine several years since, from whence it was transferred to the "Literary Gems," and subsequently to Kay's Edinburgh Portraits, vol. ii, p. 384, as a very appropriate illustration of the last sitting of "the old Court of Session." It is there very properly described as a satire replete with "humour without rancour," and as happily imitating "the overlaid phraseology of Lord Bannatyne,—the predeliction for Latin quotation of Lord Meadowbank,—the brisk manner of Lord Hermand, -the anti-gallic prejudices of Lord Craig, the broad dialects of Lords Polkemmet and Balmuto, and the inveterate hesitation of Lord Methven."

LORD PRESIDENT.

Your Lordships have the petition of Alexander Cunningham against Lord Bannatyne's interlocutor.* It is a case of defamation and damages, for calling the petitioner's Diamond Beetle an Egyptian Louse. You have the Lord Ordinary's interlocutor on page 29 and 30 of the petition. Having "considered the correspondence of the pursuer, answers for

66

defender," and so on, "Finds, in respect that it is not alledged "that the diamonds on the back of the Beetle are real dia"monds, or any thing but shining spots, such as are found "on other diamond beetles, and which likewise occur, al"though in a smaller number, on a greater number of other "beetles somewhat different from the beetle libelled, similar "to which there may be beetles in Egypt with shining spots "on their backs, which may be termed lice there, and may "be different, not only from the common louse, but from "the louse mentioned by Moses as one of the plagues of

*The interlocutors of Lord Bannatyne were remarkable for being involved and complicated; he was, however, a good lawyer, and very excellent man.

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Egypt, and which is admitted to be a filthy troublesome “louse, even worse than the said louse, which is clearly "different from the louse libelled; but the other louse is "the same with, or similar to the said beetle, which is also "the same with the other beetle; and although different "from the said beetle libelled, yet, as the said beetle is simi"lar to the other beetle, and the said louse to the said beetle, "and the said beetle to the other louse libelled, and the said "louse to the other beetle, which is the same with, or simi"lar to the beetle, which somewhat resembles the beetle "libelled; assoilzies the defender, and finds expences due." Say away my Lords.

LORD MEADOWBANK.

This is a very difficult and puzzling question, my Lords. I have formed no decided opinion, but, at present, I am rather inclined to think the interlocutor is right, though not upon the ratio assigned in it. It appears to me there are two points for consideration :-First, Whether the words libelled amount to a convicium against the Beetle. Secondly, Admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a convicium at all, it consists of the comparatio, or comparison of the scarabæus or beetle with the Egyptian pediculus or louse. My first doubt regards this point; but it is not at all founded on what the defender alleges, that there is no such animal as the Egyptian pediculus in rerum naturâ; for though it does not actually exist, it may possibly exist : and whether its existence is in esse or posse, is the same thing for this question, provided there be termini habiles for ascertaining what it would be if it did exist. But my doubt is here. How am I to discover what is the essentia of any louse, whether Egyptian or not? It would be very easy to describe its accidents as a Naturalist would do, (it is a mistake to say that it belongs to the asteria, for that is a little, yellow, greedy, filthy despicable reptile ;) but we do not learn from this

where you will be perfectly safe from any irruption of the Mahrattas.

One word more, and I have done. If a letter is left in the office for your master, observe if you think it is from a woman. If you do, endeavour to pry into it, and follow the same rule with all letters going from your master to any lady, and which may pass thro' your hands. It has been both said and sung, that "'Tis woman that seduces all "mankind ;" and as you are bound by your indenture to defend your master's good name, and to prevent as much as in your power, any injury to his character or fortune, you cannot render him a more essential service, than by preventing him from forming improper intimacies with the sex, for such connections often lead a man to ruin.

MARTINUS SCRIBLERUS, junior.

X.

EPIGRAM ON THE LATE HUGO ARNOT, ESQ. ADVOCATE.

Written by the Honourable Henry Erskine.

The Scriptures assure us much may be forgiven
To flesh and to blood, by the mercy of heaven;
But I've searched all the books, and texts I find none
That extend such forgiveness to skin and to bone.*

* Hugo was so attenuated as to be almost a walking skeleton,—had he lived till the year 1825, he might have proved a formidable rival to the living skeleton of that period. One day he was eating a split dried haddock, commonly called a spelding, when the reputed author of these lines came in,-" You see," says Hugo, "I am not starving," "I must own," observed Henry Erskine," that you are very like your meat.'

XI.

SONG,

INTENDED TO HAVE BEEN SUNG BETWEEN THE ACTS OF A PLAY, (ACTED BY PARTICULAR DESIRE OF THE DEAN AND FACULTY OF ADVOCATES), IN THE CHARACTER OF A LAWYER, -January 1770.

From a Volume of MS. in the Library of the Faculty of Advocates, written by the Hon. Henry Erskine, and said to have been corrected by himself.

1

The Bards of all ages have made it their theme
To sing of the merits, and blazon the fame
Of other professions, and praise them at random
Of lawyers I sing, and make you avizandum.
Derry down, &c.

2

Tho' partial, I'll give you a representation
Of the good and the ill, we bestow on the nation.
Our use is so certain, there is no denying'nt,
If any one doubts it, he ne'er was a client.

3

Extraordinary actions belong to the great,-
The soldier, the patriot, or premier of state;
But we, unconnected with party or faction,

Spend our time and our breath on an ordinary action.

4

Altho' with our virtues, some faults may conjoin,

The process is short that can make us repine ;

For whoe'er be the Judge that decides on our blame,

If he gives it against us, we're sure to reclaim.

5

Tho' peaceable folks, yet we often petition,
Tho' not like our neighbours stirred up by sedition,
So just are both houses, that when we're refused,
We petition again, nor think justice abus'd.

6

To the fair, the delight and the joy of creation,
We're tender and faithful without affectation;
And while to investigate, truth is our duty,

Can find nought in them, but love, honour, and beauty.

7

To other professions, old age is a ruin,

Unfits them for action, is a certain undoing;

We scorn to conceal it, like old maids and beaux,

A lawyer's the better the older he grows.

8

All mankind beside live in terror for death,

And with fear and unwillingness yield their last breath;

But a lawyer is happy, by labour hard toil❜d,

When his suit's at an end, and he's fairly assoil d.

9

On the whole, we submit to your righteous decision, Having stated the law and the fact with precision ; And we crave, that in ranking professions you'll find, If not pari passu, we're not far behind.

XII.

ODE OF SAPPHO PARODIED.

Addressed to the Earl of [Kelly], the celebrated bon vivant and Musical Composer, by the Hon. H. Erskine, from the MS. previously noticed.

Drunk as a Dragon, sure is he

The youth that dines, or sups with thee