the said sum to the pursuer's credit in account, yet they refuse, at least postpone and delay so to do: Therefore the said North of Scotland Banking Company, and James Westland as manager of said company, and Alexander Davidson and Son, and Alexander Davidson and James Davidson, the individual partners of said firm, the agents for the said company at Inverury, defenders, ought and should be decerned and ordained, by decree of the Lords of our Council and Session, conjunctly and severally, to make payment to the pursuer of the said sum of £280 sterling, with the legal interest," &c.

The North of Scotland Banking Company lodged defences on the merits. The other defenders pleaded— That as they had been called solely as agents at Inverury for the North of Scotland Banking Company, no special or separate ground of action having been laid against them—and it not being alleged that they had incurred any personal or individual liability whateverwhile the principal defenders were ready and able to answer the pursuer's demands, the action as against them, the secondary defenders, was incompetent and untenable, and they were entitled to immediate absolvitor.

The Lord Ordinary reported the case.

The defenders pleaded-The statement of the summons is, that the agent received this money on account of the bank. If it be true that the agent got it, the bank is clearly the party liable to the pursuer. But, if so, the summons, as against the defenders, is altogether irrelevant.-King v. Shirra, 23d Jan. 1827.

Lord Medwyn.-Whatever may be done hereafter, I do not see that, at the present stage, we can give effect to this plea.

Lord Cockburn.-I am of the same opinion. The Lord Ordinary has sent nothing to us but the defences, and there is nothing there about relevancy. The words there are, that the action is "incompetent and untenable." But we surely cannot decide whether such an action is untenable until we have heard something more about the matter.

Lord Justice-Clerk.-I concur. There may be grounds on which this plea may subsequently be urged, but we cannot entertain them at present. This is not a plea by the bank, but by the Davidsons, that they are not responsible for receiving this money which they have not entered in their books. It is impossible to say that this action is incompetent against them, though, on the merits, it may turn out that they ought to be assoilzied.

Lord Moncreiff concurred.

The Court remitted to the Lord Ordinary to repel
the objection to the competency.

Lord Ordinary, Wood.-Act. Inglis, J. A. Wood; Douglas and Johnston, W.S. Agents.-Alt. Lord Advocate (Rutherfurd), Macfarlane; Lockhart, Morton, Whitehead and Greig, W.S. Agents. R. Clerk.-W.G.T.|

24th November 1849. ・・

SECOND DIVISION.

No. 23.-JOHN CAMPBELL, Complainer, v. Mrs. AMELIA M'LACHLAN TURNER or CASSILS, and ROBERT FINLAYSON, S.S.C., Respondents.

Diligence-Charge-Suspension and Liberation ProcessA decision having been pronounced in favour of the pursuer of an action in the Sheriff-Court, and the defender having consigned the principal sum sued for, decree was given for the expenses, to be extracted in name of the agent, and thereafter an interlocutor was pronounced authorizing payment to the pursuer out of the sum consigned. This payment was made, and a charge, at the instance of the pursuer and her agent, was given for the expenses. A suspension was brought on the ground that the charge ought to have been in the agent's name alone; that while the charge bore that

the decree was at the instance of the pursuer, the charge itself was likewise in the agent's name; and that the date of the decree in favour of the agent was omitted in the charge. Note refused.

The respondent, Mrs. Cassils, as executrix-dative qua relict of the late Charles Cassils, writer in Glasgow, brought an action before the Sheriff-Court there against the complainer, for payment of a professional account due by him to the deceased. The defender consigned £14:6:1, being the principal sum sued for; and his defences having been sustained by the Sheriff, the respondent advocated. The Lord Ordinary, on 2d March 1849, recalled the Sheriff's interlocutor, and decerned in favour of the respondent for £14: 5: 7, with expenses. This decision was acquiesced in ; and the expenses, under an agreement to that effect, having been taxed by the agents for the parties, decree was, on 22d June, pronounced for £53:4s., as the taxed amount of expenses, and extract was allowed to be issued in name of the respondent Finlayson, as agent disburser. On 4th July, an interlocutor was pronounced authorizing the Sheriff-clerk to make payment to Mrs. Cassils of the sum consigned by the complainer; and the sum decerned for in the interlocutor of 2d March 1849 having been deducted therefrom, there remained a balance of 6d. of the consigned money.

Decree proceeding on the above interlocutors was extracted as follows:

"At Edinburgh, the 2d day of March and the 4th day of July 1849 years, in the process of advocation instituted before the Lords of our Council and Session at the instance of Mrs. Amelia M'Lachlan Turner or Cassils the said Lords

of Council and Session, of the first date hereof . . . . decerned and ordained, and hereby decern and ordain, the said John Campbell, respondent, to make payment to the said Mrs. Amelia M'Lachlan Turner or Cassils, as executrix-dative qua relict foresaid, of the sum of £14:5:7. . . . . Farther, on 22d June 1849, the Lords decerned and ordained, and hereby decern and ordain, the said John Campbell, respondent, to make payment to Robert Finlayson, solicitor before the supreme courts, agent disburser, of the sum of £53: 48. sterling, being the amount, as taxed by the agents for the parties, of the expenses of process incurred by the advocator in this Court, and in the Inferior Court, together with the sum of 19s. 8d., being the dues of extracting this decree: And of the second date hereof, the said Lords, of consent, granted warrant to and authorized, and hereby grant warrant to and authorize, the sheriff clerk of Lanarkshire to make payment to the advocator of the sum of £14:6:1 sterling, consigned on the 25th August 1845: And the said Lords grant warrant. . . . to make payment of the foresaid sum or sums of money;-all in terms and to the effect contained in the decree and extract above written, and here referred to, and held as repeated brevitatis causa: And that to the said Mrs. Amelia M'Lachlan Turner or Cassils, advocator, and Robert Finlayson, agent disburser foresaid, respectively."

On 16th August, the complainer was charged as follows:

:

"I, Peter Peterson, messenger-at-arms, by virtue of an extract-decree advocating the cause, and for expenses, and warrant thereon of the Lords of Council and Session, dated at Edinburgh the 2d day of March and 4th day of July, both last, at the instance of Mrs. Amelia M'Lachlan Turner or Cassils charge you, the said John Campbell, respondent, to make payment of the sum of £53: 48. sterling, being the amount, as taxed by the agents for the parties, of the expenses of process incurred by the advocator in the Court of Session, and in the Inferior Court, together with the sum of 19s. 8d., being the dues of extracting the said decree; but under deduction always of the sum of 6d. sterling, being the balance of the consigned amount of £14:6:1 sterling, in the hands of the Sheriff-clerk of Lanarkshire, after payment being made or retained therefrom of the sum of £14:57 sterling, contained in and due by said decree, which is here referred to, and held as repeated brevitatis causa:

And that to the said Mrs. Amelia M'Lachlan Turner or Cassils, advocator, and Robert Finlayson, solicitor before the supreme courts, agent disburser of said sums of £53: 4s. sterling, and 198. 8d. respectively."

The complainer having been incarcerated on this charge, presented the present note of suspension and liberation, in which he pleaded-The decree, in so far as it is in favour of Mrs. Cassils, having been implemented by payment before the date of the charge, her interest under it thereupon ceased; and as the decree for expenses was taken in name of Finlayson, any charge proceeding on it ought to have been at his instance alone. The charge bears, that the decree was at the instance of Mrs. Cassils, whilst the charge itself is both at her instance and at that of Finlayson. The charge did not bear the date of the decree in name of Finlayson for the expenses, which was the only sum charged for.

The Lord Ordinary on the Bills refused the note.
The complainer reclaimed.

Lord Medwyn.-I have not the least difficulty in agreeing with the Lord Ordinary. The extract-decree is quite correct, and gives the dates of all three interlocutors accurately. It so happened that the agent took decree for expenses in his own name, and the charge now complained of is for these expenses, the principal sum having been paid. But, when the charge was given, could the messenger have described the decree in any other way than he has done? I do not see that he could. Nor do I see that the complainer has suffered in the slightest degree. Lord Cockburn.—I agree.

Lord Justice-Clerk.-I am also for adhering. The probable reason why both names are inserted in the decree was, that Mr. Finlayson requested it should be in this form. But no objection is taken to the extract-decree; all the objections on the record are to the charge. It is said that, as the decree had been implemented in so far as Mrs. Cassils was concerned, there could be no extract-decree as regards her; and the charge ought to have been in Finlayson's name alone. No doubt execution could have gone on such a decree. But, here, both names are inserted; and payment to either would, of course, have been a good receipt for any claim by the other. If this decree had by any chance got into the hands of a party, other than Finlayson, acting for Mrs. Cassils, Finlayson might have lost the benefit of it. But all this is jus tertii as regards this party; he has no right to make any such objection. The only person here who has any interest to object is Finlayson, and he supports the charge. Therefore, in conformity with the decision in the case of Thomson, I think the charge quite correct, and concur with the Lord Ordinary.

The Court adhered.

Authority for Complainer. - Freebairn v. Dalrymple, 26th Feb. 1829.

Authorities for Respondents.-Thomson v. Macdonell, 6th July 1841. Dutch v. Greig and Morton, 26th June 1835.

Lord Ordinary, Jeffrey.- Act. Maidment; Richard Arthur, S.S.C. Agent.-Alt. Gordon; Robert Finlayson, S.S.C. Agent.— T. Clerk.-W.G.T.]

27th November 1849. SECOND DIVISION.

No. 24.-CHARLES A. WEDDERBURN, Suspender, v. JOSEPH JOEL, Charger.

Bill of Exchange-Onerosity-Suspension-In a suspension of a bill of exchange, on the ground that it was the renewal of a £70 bill, granted in consideration of a loan of £35, and that £10 was charged for the renewal, by the borrower, who was of full age when the transaction was entered into the suspender prayed the Court to pass the note, for the purpose of making inquiry. Note refused.

This was a suspension of a bill granted by a lieuten

ant in the army to a money lender. The bill was for £70; but it was averred by the suspender that the loan given him as the consideration for it did not exceed £35, and that £10 was charged for the renewal. It was also averred that the charger, to whom the bill had been indorsed, was not an onerous indorsee, but was conjunct and confident with the original lender, who was his nephew.

The Lord Ordinary pronounced the following interlocutor:

"18th August 1849.-The Lord Ordinary having considered this note of suspension, with the answers and productions, and conferred with the agents-passes the note on caution.

"Note.-The correspondence in this case is of a most suspicious character, betraying great weakness, if not legal facility, on the part of the suspender, viewing him as a person now some years past minority. No doubt could have been entertained as to the propriety of passing the note, to subject such transactions to the most minute expiscation, had the question been only between the suspender and the drawer of the bill; but the charge is by an alleged indorsee. It was explained, however, that the indorser and indorsee are near relatives, the latter being the uncle of the indorser; and, in such a case, the Lord Ordinary thinks it right to pass the note on caution, to give full opportunity for the most searching investigation."

The charger reclaimed.

Macfarlane, for reclaimer-There is no ground stated to have this note passed. The charger is entitled to plead the usual presumption of onerosity until taken off by writ or oath. There is nothing illegal in the transaction, on the suspender's own showing. The charger, it is true, is the uncle of the original creditor; but he has a separate business, in the course of which the bill came into his hands.

Craufurd, for suspender-All we pray for is for an investigation. The suspicious character of the transaction, and the manner in which we have been treated, as shown in the correspondence, justifies that request.

Lord Cockburn-Do you admit the facility mentioned in the Lord Ordinary's interlocutor?]

We do not. But we submit there are sufficient grounds for an investigation. The renewal was not transacted by the indorsee, but by the indorser.

[Lord Justice-Clerk.—That is just the common practice.] The correspondence shows that this bill was continually going backwards and forwards between the indorser and indorsee--and that there was collusion.

Macfarlane, in reply.

Lord Justice-Clerk.—With all deference for the Lord Ordinary, I see no ground for passing this bill. There is nothing in this correspondence to indicate facility and weakness on the suspender's part. He applies for leave, and explains his reasons for delay in a very businesslike manner. He then comes forward with this suspension, on the ground that the whole transaction is suspicious. In what respect suspicious? The usury laws are abolished. It was thought expedient for the interests of society to abolish them, both because a money-lender may now charge interest proportionable to the risk he runs, and also as a restraint on extravagance. The only object of the statute is to enable one to lend money at a high rate. There may have been a good deal of folly on this suspender's part, but folly is not what we understand by legal facility. The idea that a note of suspension is to be passed because an officer in the army, admittedly some years beyond his attainment of majority, has had the folly to borrow money at an extravagent rate of interest, is out of the question.

Lords Medwyn and Cockburn concurred.

Lord Moncreiff-I am of the same opinion. The only suspicious circumstances spoken of are, that the rate of interest is

extravagant. But that is no ground of suspension. A reference to oath is still competent to the suspender. Craufurd-We shall refer to the charger's oath.

Remit to refuse, and to receive reference to oath.

Lord Ordinary, Cuninghame.-Act. Craufurd; Murray and Beith, W.S. Agents.-Alt. Macfarlane; John Leishman, W.S. Agent.-T. Clerk.—|F.H. |

28th November 1849.

FIRST DIVISION.

No. 25.-PAUL DOIG, Petitioner. Process-Tutorial Inventories-Next of Kin, Citation of-In the making up curatorial inventories, a petition to dispense with the citation of the nearest of kin should (correcting De Maria, ante, i. p. 536) be printed.

This was a petition by a minor for dispensation from citation of the next of kin on his mother's side.

The petitioner stated, that he had raised a summons of choosing curators, and for making up inventories, which had been duly executed against his two nearest of kin on the father's side, but that, on the mother's side, "as there is none existing, or, at all events, none reside within Scotland, a conclusion has been introduced into said summons for dispensing with their citation; therefore, in conformity with the procedure adopted by the Court in the case of Lamont and De Maria, 29th June 1831, (ante, vol. iii. p. 536), the present application is necessary."

The petition was written.

Lord Justice-General. Why was this petition in manuscript? We must throw it aside, as not being printed.

Clark, for petitioner, quoted the case referred to above.

Lord Justice-General.-You do not mean to say that any general rule was laid down in that case, that petitions of this nature must be written; if that is the purport of the report, it is wrong. Because, in a particular case, we dispensed with printing, is no reason for supposing that, in other cases, printing is improper, or will be dispensed with.

The Lords ordered the petition to be printed. Act. Clark.-James Graham, S.S.C.Agent.-L. Clerk.─[W.G.T.]

28th November 1849.

FIRST DIVISION.

No. 26. JANET HAMILTON or COUPER, Pursuer, v. CATHERINE HAMILTON M'DONALD or YOUNG and Husband, Defenders.

Proof-Presumption-Indefinite Payment-Admission-In a question as to how far the interest on a bond had been extinguished, and where the defender averred that payments to a certain amount had been made, the pursuer produced a pass-book containing jottings of payments to that amount; but these, on a judicial examination, the pursuer declared to have been made to account of interest due, not on the bond, but on certain bills, in which, likewise, the defender was her debtor. The bills were all prescribed before the date of the first jotting. Circumstances in which-Held, that the payments credited in the pass-book were to be imputed to the interest of the bond, and not to the bills.

two bills drawn on him by Couper for £170 and £65 respectively; also, on 15th May 1825, a bill for £90, or £98, (the precise amount being disputed), in favour of the pursuer. Couper died in 1822.

On 30th June 1829, Robertson granted a bond and disposition in security over the same property, in favour of the Rev. Dr. M'Lean, who was infeft.

On 14th June 1830 Robertson died, leaving a settlement by which his wife was appointed liferentrix of his whole property, with the power of disposal. This power she exercised by executing, on 6th September 1838, a disposition, assignation, and deed of appointment, under which she nominated James and Robert Couper, her nephews, (the pursuer's sons), as the parties entitled to the fee, and conveyed the property to them in due form. In 1839, Mrs. Robertson paid the £700 bond, and, on 8th October following, obtained from Dr. M'Lean a disposition and assignation, in virtue of which she was infeft on 5th February 1842. In 1840, Mrs. Robertson lent the pursuer's sons £500, on a bond and disposition in security by Robert Couper, over certain property belonging to him, of which the pursuer was liferentrix.

In June 1842, the pursuer's agent wrote to Mrs. Robertson's agent forwarding a state of the claim by the pursuer against her, and requesting to know whether Mrs. Robertson would take up the £800 bond, or acquiesce in a sale.

The state accompanying this letter brought out a claim of £1721 : 19:10 due to the pursuer by Robertson's representatives. The claim was made up, in the first instance, of the heritable debt for £800, and interest from Whitsunday 1829; and, secondly, of the sums contained in Robertson's acceptances above mentioned, with interest from their respective dates. The deductions allowed were £25: 10s. as three years' interest on the £175 bill; and £162, afterwards corrected to £222, as payments made at different times to account of interest on the bills generally.

In answer, Mrs. Robertson's agent wrote

"The bills referred to are long ago prescribed, and Mrs. Robertson assures me that no part of any of them is due; and the whole sums paid to account of interest on the bond have not been accounted for."

Shortly after this the property in Gorbals was exposed to sale, and, on 29th June 1843, was bought by Mrs. Young for £1200. Mrs. Young, in virtue of the settlement of Mrs. Robertson, who died immediately before the sale, had acquired right to the bond for £700, formerly held by Dr. M'Lean, on which she was infeft on 14th June preceding the sale.

The sum of £500 was paid to account of the price, and the pursuer then claimed payment from the defenders of the balance of the price. This demand was resisted, on the ground that, as postponed heritable creditor, Mrs. Young was entitled to retain the balance after paying off the preferable debt. The pursuer then raised the present action.

The defenders stated, that they were quite willing to settle with the pursuer for the balance of the price, under deduction of £222, alleged by them to have been paid to account of interest on the £800 bond.

After lengthened procedure, the Lord Ordinary reported the case to the Court with the following note,

which explains the previous proceedings, and the point now at issue :

"Note.-Although the proceedings in this case are somewhat complicated, the point at issue is abundantly simple. The late James Robertson granted an heritable bond in favour of the late James Couper for the sum of £800, dated 16th January 1817. The pursuer, as in right of her husband, brought the heritable property to sale, and, on the 29th of June 1843, the subjects were purchased at the price of £1200 by the defender, who held a postponed security. The pursuer brought this action for implement of the sale; and the question raised between the parties was, to what extent the debt in the bond and interest had been extinguished. The pursuer was specially appointed, by interlocutor of 13th December 1844, to lodge a state of the exact balance due; and such state was accordingly lodged, being No. 77, bringing out a balance of £1367:3:2. In this balance was included a sum of £1060, as interest from Martinmas 1816 to Martinmas 1843. It afterwards appeared, by the terms of the instrument of requisition, that the interest on the bond had been paid up to Whitsunday 1829; and this having been admitted, on the 6th March 1845, the Lord Ordinary made a remit to Mr. Lindsay, accountant. That gentleman reported two points. The first of these regarded the receipt No. 29, which was objected to as not being sufficiently stamped; and the second the sum of £222, being the amount of several receipts contained in a book described as a pass-book, No. 27.

"When the case came before the Lord Ordinary on the accountant's report, he considered it proper to take the pursuer's oath of calumny. She accordingly was examined, and denied the subscription both to the receipt No. 26, and the pass-book No. 27, and she stated that payments to the amount specified in the pass-book had been made, but that these payments were not to account of the interest on the bond, but were to account of certain bills which, it afterwards appeared, were prescribed. She further deponed, that 'she has a pass-book of her own, which was kept by her daughter, and which she now produces.' The Lord Ordinary, by his judgment of 8th December 1846, gave effect to the objection to the receipt No. 26, and held that document as insufficient to vouch the alleged payment of £23: 0:3, and that point is now at rest. But he found that credit ought to be given for the sum of £222, entered in Mrs. Couper's own pass-book, No. 83.

"This interlocutor having been brought under review, the Court, on 4th June 1847, appointed the pursuer to be judicially examined, and her declaration was accordingly taken before the Lord Ordinary, and reported to the Court. In that declaration, the pursuer being interrogated, 'Did you get any money from Mrs. Robertson-Declares, I got the money from her entered in my pass-book; and being shown the pass-book No. 83, declares that is the pass-book to which I now refer. I did not mark the money I received from Mrs. Robertson in any other book or account, and kept no other book or account in which any such entries were made. The payments were entered in the passbook at the time they were made, in presence of Mrs. Robertson.' She afterwards adds, that the payments were made to account of the bills..

"The case having again come before the Court, the interlocutor of the Lord Ordinary was recalled, of consent, in hoc statu, and a remit made to allow a record to be made up. This was accordingly done, and the Lord Ordinary, on the 9th of February, inter alia allowed a proof with respect to the handwriting and subscription in the pass-book No. 27. That interlocutor was recalled on the 10th March 1849, in respect of the document being unstamped, and this-book, No. 27, must now be entirely thrown out of view.

"The case comes, therefore, to be determined on the effect of the book No. 83, produced by the pursuer. The Lord Ordinary's interlocutor of 8th December 1846 proceeded on that book; and, after again hearing parties, and considering the case, he sees no ground for altering that judgment, or rejecting the evidence arising from the book so produced and admitted. As the Court may, however, have entertained doubts of the soundness of that judgment, the Lord Ordinary thinks it more respectful to take the matter to report, than merely to repeat, in terminis, the interlocutor formerly pronounced by him.

"Throwing entirely out of view the pass-book No. 27, and supposing that no such book ever existed, the question is, whether the book No. 83 is evidence? Now this book is not objected to on the ground of want of stamp; and it is not pretended

that a party's own book, such as this, kept by himself, or by another in his behoof, may not be recovered and adduced in evidence against him. It seems immaterial whether the book be produced voluntarily, or recovered under a diligence. But if the book be looked at as the writ of the pursuer, it proves that she received the sums there mentioned from Mrs. Robertson. This is evidence arising from the book itself, and independent of any admission. As explained in the Lord Ordinary's prior note of 8th December 1846, the payments in a great measure correspond with the dates and amount of the interest on the bond; and it humbly appears to him now, as it did then, that these payments, so proved by the pass-book, must be ascribed in extinction of the interest on the bond which was due, and not to the bills, already in law extinguished by prescription, and of the existence of which there is no evidence that the party making the pay

ments was aware.

"The Lord Ordinary fully acknowledges the doctrine maintained by the pursuer, that where an admission is founded on, it must be taken with all its qualities. If the defender had nothing to show but the pursuer's admission, then, as that admission of the receipt of the money was accompanied by the statement that this money was not paid to account of the interest, but towards bills, which, although prescribed, and, therefore, not a debt resting-owing, might still conscientiously have been paid, if the debtor knew that the debt still subsisted; such admission, so qualified, might not avail. The Lord Ordinary does not think that, in such a case, the defender, as in a reference to oath, would be entitled to have the quality of having received and applied the money to payment of the debt in the bill rejected as extrinsic. An admission must be taken tantum et tale. But if the receipt of the money be proved by the creditors' writ, independent of admission, then, surely, the payments are to be ascribed to a debt due, and not to a debt extinguished. If the book No. 83, however, be not considered as admissible in evidence, then the Lord Ordinary admits that there is no foundation for his judgment."

The pursuer's oath of calumny bore :

"That payments of the amount specified in this pass-book were made, but that the said payments were to account of certain bills, as agreed on with Mrs. Robertson, and were not payments to account of the interest on the heritable bond in question; and depones, That, in her conscience, she believes the interest on the heritable bond claimed by her in this process is still due. Depones, That she had a pass-book of her own which was kept by her daughter, and which she now produces." Her judicial declaration was as follows:"Interrogated, Did you get any money from Mrs. Robertson? Declares, I got the money from her entered in my pass-book; and being shown the pass-book No. 83, declares, That is the pass-book to which I now refer. I did not mark the money I received from Mrs. Robertson in any other book or account, and kept no other book or account in which any such entries were made. The payments were entered in the pass-book at the time they were made, in presence of Mrs. Robertson. Mrs. Robertson was in occupation of the property over which the bond extended. And the declarant's attention being called to the payments of £20 each on 25th November 1837, 18th May 1838, 18th November 1838, 27th November 1839, and 26th May 1840, entered in the said pass-book, and interrogated how these payments came to be of the amount of £20 each ?-Declares, That these payments were made at the terms when Mrs. Robertson had money in hand. It was agreed between us that the payment should be entered in the pass-book; and the declarant adds they were payments to account of the interest on the bills. There was no payment made to account of the interest on the bills before the first payment entered in the said pass-book-that is to say, no payment by Mrs. Robertson. Interrogated, What was the date of the last payment to account of the bills, or interest, prior to that marked in the pass-book? Declares, That before this there was never any payment to account of the bills or interest, excepting a sum marked on the back of one of them. When Mrs. Robertson made the first payment to the declarant, there was no state made out either of the principal or interest due on the bills. There was no state of the sum due on the bills made out before Mrs. Robertson died. The bills were three in number. The bills were in possession of my husband before his death, and he indorsed them to me in presence of the trustees. My husband died in January 1822. My husband handed over two

of the bills to me on the occasion when he indorsed them, and the remaining bill is granted to myself by Mr. Robertson in May 1825. Interrogated, Whether she ever asked Mr. Robertson for the interest on the two bills granted to her husband? Declares and answers, I frequently did, but I never could get it: That these demands were made soon after my husband's death, and frequently: That I made such demands frequently betwixt the date of my husband's death and that of the bill granted to myself. I also sought the interest of the bond for £800 many a time from Mr. Robertson, but I never could get any money from him. I made such demands every term, but I never could get any money from the year 1829, up to which time the interest on the bond was cleared. Interrogated, Whether, after Mr. Robertson's death, she made any demand for the interest on the bond? Declares and answers, No; I was rather particular as to the interest on the bills. I did not demand the interest on the bond when I began to understand that my bills were in greater danger. Again interrogated, Whether she made any demand for the interest on the bond on Mrs. Robertson? Declares, I was asking her for the interest on the bond every term, but I never could get any payment on that account. Mrs. Robertson knew quite well, when the payments of £20 above mentioned were made, that the interest on the bond was due. I continued to make the demand for interest on the bond at each term down to the period of Mrs. Robertson's death; and the declarant adds, I also demanded the interest and the bulk of the bills. Interrogated, What was included in Robertson's acceptance to the declarant for £98? Answers, There was two years three months interest on the bond, and £8 of borrowed money, but no interest on the prior bills. Interrogated, What she meant by saying that she thought the bills in danger? Declares, I thought they might be prescribed, and I wanted payment of the interest on them. Interrogated, declares, I made no demand for new bills instead of the old, or any written acknowledgment that they were subsisting. Interrogated, How she came to understand the bills were in danger? Declares and answers, I think it was Mrs. Robertson's law-agent who told me-old Mr. M Gregor. I had some business with him myself, and I took his advice with regard to the bills. Interrogated by the Lord Ordinary, What advice was given to you by Mr. M'Gregor? Declares and answers, Mrs. Robertson and I were there together. I showed him the bills, and she allowed on this occasion, in his presence and my daughter's, that she would pay the bills, interest and stock, and that this was the time she began to make the payments, and to have them entered in the pass-book; it was on this occasion that the little pass-book was got, and she acknowledged the debt verbally, and said she would pay it as soon as she could, and no more was said by Mr. M.Gregor, nor any further advice given by him: That after the meeting with Mr. M'Gregor, Mrs. Robertson came to the declarant's house with the pass-book: That Mr. M'Gregor saw nothing but the bills, but I told him that the bond and interest were behind. I never told M'Gregor anything about the pass-book. The passbook began the first term after the meeting with Mr. M'Gregor. That nothing was said on the occasion of the meeting with Mr. McGregor, or when the bond was transferred to Mrs. Robertson, about my share of the debt due on the bond against the bills and interest. Mr. Murray was son-in-law of Mr. M'Gregor, and I have no doubt Mr. M'Gregor was aware of the bond in Mr. Murray's favour, which was afterwards transferred to Mrs. Robertson. Declares, My sons are paper makers. I know that Mrs. Robertson lent them £500 on a bond over their property. I was present when some conversation passed between my sons and Mrs. Robertson on the subject of the loan. She said she had not the money, but would get it for them. The money was put on the property in her name, and it was paid sixteen months afterwards, I having then advanced the money, and taken the security in my own name. I think it was after Mrs. Robertson's death that I made this advance for my sons. I have the liferent of the property belonging to my sons, over which the last mentioned security extends. Interrogated, In making out the passbook, how it happened that no entry was made on what account the sums there acknowledged were paid? Declares and answers, That the entries in the pass-book were made by my daughter in the presence of Mrs. Robertson, and by her directions, and that they might be evidence of the sums which were paid; and the declarant adds, that the payments were made so that Mrs. Robertson might know the sums paid on account of the interest and bulk of the bills. Declares, These were the words that passed between Mrs. Robertson and me in presence of my daughter; but there was no writing to that effect; and I

can give no more reason why nothing was said in these entries about the bills. I had the bills in my possession during all the time the payments were made. Interrogated, How it happened that she did not mark the payments on the bills? Declares and answers, Mrs. Robertson did not mention this, and for my part I had 'nae sense to ken' that they should have been on the back of the bills. I had no idea that this should have been done. Interrogated, declares, I saw the former payment marked on the back of one of the bills, but it did not cross my mind to mark these payments in the same manner. The payments in the passbook were all made by Mrs. Robertson in presence of my daughter and myself, not by Mrs. Young."

The entries in the pass-book produced by the pursuer were as follows:

There was no marking on the bills of any payment whatever, except on that for £170, on the back of which there was a marking, dated 28th May 1821, to the effect that £25: 10s. had been paid, which was initialed J. C., being the initials of the pursuer's late husband.

The pursuer pleaded-Here is a debt as to which the defenders are undoubtedly in arrear of interest. Up to 1829, indeed, regular receipts for the interest have been produced, and to that date, accordingly, payment is admitted; but after that date there is no proof of payment, and it is for the defenders to prove the contrary. But they had no means of proving until the defender produced her pass-book. That production, however, was made voluntarily-it was purely an admission on her part; and it is trite law, that, where there is no other proof, an admission must be taken with its qualification. Here, the defenders can found only on the pursuer's admission; but, if so, they must take therewith the qualification adjected in her judicial declaration.

The defenders answered-Though the payment here is indefinite, the position of the two debts is very different, since, though no doubt one of the bills was not prescribed when Robertson died, all of them had run the full period before the first of the jottings. But it is not the case that the pursuer has nothing but admission to rest on. Though the pursuer has produced this book voluntarily, she could have been forced to do so under a diligence, and could not then have qualified her own jottings by a declaration. The true view is, that the whole circumstances of the case must be looked to as constituting the evidence on the point.

Lord Mackenzie.-This is a case of great nicety; but, on full consideration, I think that the view which the Lord Ordinary takes is the right one. It is said that this document is not good for anything as evidence; that it cannot be taken except as the pursuer's own admission. But it is found in her own possession. Now, if it had borne the words, that these sums were paid to interest on the bond, would that not have been sufficient evidence that the payments were truly on the bond, and not on anything else? Could she have contradicted that by her declaration, and said that the payments were on the bills, and not on the bond, and that you must take my qualification of the document? She could not have done that if there had been such an explicit statement, in whatever way the document had come into process. That it was produced by the pursuer voluntarily, is of no consequence. If diligence had been granted