the county of Forfar, against the defender, setting forth that he, the petitioner (pursuer), on Monday, the 17th of April 1848, had signed ship articles, at the desire and request of the said James Bruce, shipowner in Dundee, to go a voyage in a vessel called the Shakespeare, belonging to the said James Bruce : That the voyage was to be from Dundee to any port or ports of the Baltic, and from there to any port in the united kingdom: That the petitioner (pursuer) had delivered his registered ticket to the said James Bruce, who had received and taken possession of the same: That, for some unexplained reason, the said James Bruce had departed from, and refused to implement his agree ment with the petitioner (pursuer), and also retained, and refused to give him back his registered ticket: That, to amend and consolidate the laws relating to merchant seamen, and for keeping a register of seamen, the said act of parliament 7 and 8 Vict. c. 112, was passed: That section 2d of the aforesaid act of parliament inter alia enacts, that it shall not be lawful for the master of any ship to carry to sea any seaman, being a subject of her Majesty, until he shall also have first obtained from every such seaman, or other person, his register ticket, (to be procured as hereinafter mentioned), which ticket the said master is hereby required to retain (except in the cases hereinafter provided) until the service of such seaman shall have terminated; and, at the termination of such service, the said master shall return the register ticket to him: That section 29 of the aforesaid statute enacts-And be it enacted, that all indentures, counterparts, assignments, lists, accounts, returns, papers, register tickets, and documents, by this act required to be delivered to the collectors or comptrollers as aforesaid, shall be by them transmitted to the said registerer, for the purposes of this act, at the end of every week, unless otherwise specified in this act; and every owner or master who shall refuse or neglect, to transmit, deliver, or cause to be delivered, any list, account, register ticket, or other document, as required by this act, shall, for every such refusal or neglect, forfeit and pay the sum of £10: That section 62d enacts And be it enacted, that all penalties and forfeitures imposed by this act, and for the recovery whereof no specific mode is hereinbefore provided, shall and may be recovered, with costs, either in any of her Majesty's courts of record at Westminster, Edinburgh, or Dublin, or in the colonies: . . . . That the defender, the said James Bruce, having refused to deliver, or cause to be delivered up, the petitioner's (pursuer's) registered ticket, he was liable in the foresaid penalty of £10 sterling; and the said petition therefore prayed the said justices to grant warrant for summoning the said James Bruce before them, to answer the said complaint, and to decern against him for £10 of penalty, for refusing to defiver, or causing to be delivered up, to the petitioner (pursuer) his register ticket, and otherwise to proceed in terms of, and in conformity with, the said statute; to find the said James Bruce liable in costs; or to do otherwise and further in the premises as they might deem just: That the pursuer's agent having prepared a petition to the effect as before narrated," the defender caused the register ticket to be delivered to the pursuer's agent : That, nevertheless, the petition was presented; and having been served on the defender, the said justice saw reason to pronounce judgment in the following terms:-The justice having considered the complaint and the evidence adduced, in respect it appears from the evidence in this case that the register ticket of the complainer was, in consequence of a demand made on the master by the complainer, through his agent, delivered up to Mr. Flowerdew, the complainer's agent, at his office, before the present complaint was presented at the office of the clerk of the peace, the justice assoilzies the defender, and finds the complainer liable to the defender in 10s. 6d. of modified expenses; and decerns."E

The reasons of reduction were stated as follows:"Secundo, The defender having illegally retained the pursuer's register ticket, at least from the time of his dismissal on the 19th day of April last, until its re-delivery on the evening of the 25th day of same month, a' period of at least six days, he thereby rendered himself liable in the penalty imposed by the 4th section of the said statute, which is in the following terms: If any master or owner shall neglect or omit to deliver, or cause to be delivered, to such collector or comptroller, any such agreement or such copy thereof, as aforesaid, or shall not deliver up any register ticket to the person entitled to it, at the expiration of his service or otherwise, as required by this act, he shall, for every such neglect, omission, or offence, forfeit and pay the

sum of £10;' and the said justice, in terms of this provision, was bound to have subjected the said defender in the penalty thus imposed accordingly. Tertio, The delivery of the pursuer's register ticket to his agent by the defender having been made after his having causelessly and illegally retained the same for a period of at least six lawful days, and after he had thereby incurred the penalty imposed by the said statute, even although such delivery was made before the actual presentation of the pursuer's petition, was not de facto a sufficient authority for the said justice to assoilzie the defender from the pursuer's claim, and to subject him in expenses; the ratio decidendi set forth in said judgment was unauthorized by the provisions in the said statute; and, on the whole, the judgment was incompetently pronounced, and is, therefore, subject to the review and reversal of our said Lords."

The conclusions were, that

"the said decreet of absolvitor, and whole grounds and warrants, thereof, should be reduced, with all that has followed thereupon, in judgment or outwith the same; and the said James Ramsay should be restored thereagainst in integrum: And the said decreet of absolvitor being so reduced, the pursuer's said claim against the defender, for the penalty incurred as aforesaid, and expenses, should be reserved entire and unaffected, as if said decreet of absolvitor had never been pronounced."

The defender pleaded in limine-1. The reasons of reduction being, on the showing of the summons, irrelevant and inadmissible, the defender cannot be called upon to satisfy the production, and the action ought to be dismissed de plano with expenses. 2. The action is incompetent, as not containing any substantive conclu-, sion in favour of the pursuer.

The Lord Ordinary pronounced the following interlocutor:

"15th July 1849.-The Lord Ordinary having heard counsel on the summons and preliminary defences, and having specially considered the summons in the present stage of the cause, as directed by the 5th and 6th sections of the Judicature Act, Finds, without inquiring into all the pleas otherwise competent in the case, that, even on the assumption of the whole statements of the pursuer in his summons being admitted, it is manifest, on his own showing, that he has no legal or maintainable interest to pursue the present action: Therefore, sustains the preliminary defences, dismisses the action as laid, and finds the defender entitled to expenses, as the same may be taxed by the auditor; and decerns.

"Note.-On perusing the present summons, the Lord Ordinary has a strong impression that the proceedings of the party in whose name the action is raised are not a little unreasonable and vexatious.

"The pursuer seeks to reduce a decree of the justices of peace at Dundee, whereby they assoilzied the defender from a summary complaint for a penalty presented under the late Seamen's Act, (7 and 8 Vict. c. 112.)

"When a fit case occurs, it may admit of argument how far such a case is reviewable on the merits by the Supreme Court, on such grounds as are now stated here. It is thought that appeals in such a case, against judgments bona fide pronounced, if the reduction is laid on the ground of error only, are very questionable. It may also be doubted if the civil court be the right tribunal for reviewing the proceedings in suits for penalties which are commutable by imprisonment for six months. But it is not thought necessary to discuss these points in the present instance.

**“ Although the summons of reduction has no petitory conclusions, (a circumstance which of itself suggests a strong plea against the competency), the present action is, and can only be, brought with the view of setting aside the judgment of the justices absolving the defender from the penalty of £10, insufficiently set forth as the object of the prosecution. If that be not the object of the pursuer, he has no interest; and there is no foundation or rational ground for the action. But the pursuer's application, as fully quoted in the summons, shows that the complaint was not so laid as to carry the penalty. The clause of the act enacting the penalty (§ 4) was entirely omitted in the original complaint. Hence it is manifest, on the pursuer's own showing, that the defender was rightly assoilzied from that suit.

For the recital of the sections of the act, on which the pursuer's claim was maintained in his complaint, was essential to its validity and operation against the defender, as found in a variety of cases, now quite unquestionable.-See, in particular, the case of Megget, 1st March 1823, 2 Shaw, 261, where a petition and complaint against a trustee under the sequestration statute was dismissed, because the complaint did not found on the sections of the statute entitling him to complain.' And a similar decision was repeated in 1825, in the case of Parlane v. Templeton, 4 Shaw, 121.

"On these grounds, the pursuer, even if the decree complained of were reduced, could never obtain the penalty, which alone was his object under the original suit. And he cannot present a new application for the penalty, as every demand for it in a new action is excluded by the limitation contained in the 62d clause of the statute.

"The Lord Ordinary has the less regret in dismissing this summons, as it appears, from its narrative, that the pursuer has instituted an crdinary action of damages against the defender before the Sheriff, under which he may obtain all the reparation in the premises to which he is in justice entitled, although this additional action for penalty is dismissed."

The pursuer reclaimed.

Deas, for pursuer-There is no question here as to the merits of the justice's judgment. The Lord Ordinary's decision proceeds altogether on this, that the summons states no legal grounds for reduction.

Lord Jeffrey.-That is, that your original complaint was founded on the wrong section of the act. It did not mention section 4.]

It is not necessary to libel on particular sections if the complaint is founded on the act generally.-Frame, 9th June 1836. Black and Baird v. Marshall, 8th July 1843; Justiciary Rep. But, here, the complaint is libelled on particular, and those the proper, sections. For § 2 contains an obligation on the master to return the seaman's ticket; and § 29 imposes a penalty of £10 on all persons failing to do so. There is no reason to suppose that the penalty in § 29 is limited to the neglect of masters to deliver papers to collectors and comptrollers. On the contrary, from the general terms used, it appears that the penalty was intended to cover every failure to deliver, "as required by this act." If there had been no other clause imposing a penalty for non-delivery, would not this have been sufficient to cover the present case? But if this section does apply, what does it matter that the act contains another section also applicable? As to the objection, that this Court has no power of review, that is obviated by § 69, which provides, that a complaint of this nature may originate here. And if it can originate, it can surely be reviewed here.

Neaves, for defender-In a penal application such as the pursuer's original complaint, it is necessary to libel the particular clauses of the act on which the complaint is founded; at any rate, it must be fatal to such a complaint if it libel on the wrong clauses. Now, it is clear that § 29 does not apply to the case in hand. The act, in § 9, begins a perfectly new subject from all that precedes, instituting certain machinery for registration and other purposes; and it is to this part of the act only that § 29 refers. The only section in the act applicable to the statement in the complaint is § 4; and so the reasons of reduction set forth, that the defender "rendered himself liable in the penalty imposed by the 4th section." But the original petition does not libel this section at all.

[Lord Fullerton.-I think the question turns very much on the terms of the summons. Now, in the reasons of reduction, nothing is said as to § 29.]

Deas. That section is narrated in the summons ; and the third reason of reduction refers to that narrativé. That the second reason libels on another section, is no ground for holding that the third libels on it also. The second reason may be struck out altogether, without injuring the relevancy of the summons. Nor is it any objection that these reasons are contradictory to each other. That is frequently the case, especially in reductions on the ground of facility. It is farther to be observed, that the preliminary defence, that the defender cannot be called on to satisfy the production, is (act of sederunt 1825, §§ 61, 62) competent only when the title of the pursuer is objected to. Νο such objection is made here; hence, whatever may be the value of the defender's pleas hereafter, they cannot be stated in this form.

Lord Jeffrey.-You cannot say that you libel on the statute generally; for you recite three different clauses, the 2d, 29th and 69th, and then conclude for "the foresaid penalty." What can that mean but the penalty contained in § 29, which is the only one of those recited which imposes a penalty?

Lord Justice-General.-On looking to the summons, you will find that all you call founding on the statute in the summons is just a recital of the original complaint.

66

Lord Jeffrey.-It is a literal transcript. And the sunimons itself states, the petitioner's agent having prepared a petition to the effect as before narrated."

Lord Justice-General.-We have given this case a very full hearing, on the principle that it is right to give statutes of this nature the most favourable interpretation. But, in the particular case before us, it is evident that the original complaint does not found on § 4. The pursuer omits that clause in his complaint; and then, when he comes to the reduction, he soon finds that it was necessary to found on it. Now, let us look to § 29, and see whether the provisions of it do not relate to the not giving up of these documents to the collectors and comptrollers alone. First, I shall read § 4-(reads § 4). Then we come to $ 29, the words of which are quite different-(reads § 29). The effect of this is just, that, if any impediment is thrown in the way of any collector, as to the delivery of these documents, any master therein concerned shall be liable in this penalty. This is quite a different matter from the one now before us, though the amount of the penalty is the same. If the complainer, then, has founded on a wrong clause of the act, he is not entitled now to go back upon another, which he now finds to be the right one. Lord Mackenzie.-I really have very little to say. I give no opinion as to what may be the law with regard to the general case of citing statutes generally. Whether, where the statute is referred to, and the correct words applicable to the case are quoted, but the sections are not referred to by numerals, that objection would be fatal, is another matter, and offers other questions, which we do not need to enter into now. This is a special case; and, in the circumstances of the case, I agree with your Lordship. As to the argument on the third reason of reduction, I think there is nothing in that. I have some doubt, however, as to what should be the precise words of our interlocutor. As to the competency of our review in this matter, I am quite satisfied, looking to the words of the statute. Then, as to the competency of the plea objecting to satisfy the production, I see no doubt. For this, in point of fact, is an objection to the title; the objection is, that the summons is altogether inconsistent and inadmissible. On the whole, I do not think the summons relevant, and think we should sustain the defences.

Lord Fullerton.-The question, I think, regards not so much the merits of the case originally, as the nature of this summons. It would be strange to throw out this summons because the person who drew up the original complaint had peculiar views of the law, and did not libel it properly. The point on which I should dismiss this summons is, that it is itself inconsistent. This is an action for reducing the judgment of the justices; the summons narrates the petition, and the clauses libelled on therein, and that the complaint was for the recovery of a certain penalty, and that it was refused. Then the summons states the reasons of reduction. Now, I think these reasons most important, because it is in these that the pursuer must state why he

thinks the judgment to be reduced, wrong; and if these reasons are contradictory of the narrative, the summons cannot be good. Now, here, the second reason quotes § 4 of the act, and concludes, "and the said justice, in terms of this provision, was bound to have subjected the said defender in the penalty thus imposed accordingly." Then the third reason goes on-(reads it). This reason is not founded on any other clause of the act; it is evidently merely accessory to the second reason. Now, we have heard a great deal as to the proper effect of § 29, and I am not going to give any opinion as to what the effect of that clause might be. But if the party here had intended to found on that clause, he should have stated that clause in his summons, and then, though the reasons of reduction might have been bad in point of law, I should have thought it a consistent summons. Bat, instead of this, the pursuer gives up that clause, and betakes himself to § 4. Now, this summons I think inadmissible, inconsistent, and contradictory. He seeks to get this judgment set aside, not on § 29, but on another section of the act, which was not before the justices at all. It is not an irrelevant summons, in the ordinary sense of the term, but it is contradictory on the face of it. The decree is to be reduced, not because the judge below has done wrong, but because the pursuer himself has done wrong in not libelling on the right clause of the statute. I agree with Lord Mackenzie in thinking, that the interlocutor submitted to review is perhaps not quite correct in expression; but, in principle, I think the Lord Ordinary quite right.

Lord Jeffrey-I concur, considering that the grounds of our decision are, that the summons is, in respect of its own inaccuracy and inconsistency, inadmissible, without any necessity for our going into the merits of the case-and, therefore, that the defender is not bound to satisfy the production. It is in vain for the pursuer to argue that he has libelled this statute generally. All the complaint does is, to quote three sections, of which only one contains a penalty, which is § 29; and on these he asks a judgment from the justices. Then he comes into this Court with these reasons of reduction. The first is the ordinary style; the second is that which fixes on the summons the charge of inconsistency, irrelevancy, and self-contradiction; for it says, that, in certain circumstances, the defender rendered himself liable in the penalty imposed by § 4," and that the justice," in terms of this provision, was bound to have subjected the said defender in the penalty thus imposed accordingly." Now, how can there be a more complete non sequitur than that the justices have gone wrong, because, when they were expressly required to impose a penalty in terms of § 29, they did not impose that enacted by § 4? As to the third reason, it is, as Lord Fullerton says, a mere accessory of the second. It is, in fact, just a statement on the merits; and it is impossible to read it unico contextu with the other, except as relating to the former ground of reduction. Take, for instance, the words. "after he had thereby incurred the penalty imposed by the said statute,"--what is that but the penalty spoken of before in the second reason? Here, therefore, we have a summons which, had it been otherwise, I might not have thought it right to reject at this stage, but might have entered into consideration of the effect of § 29, and whether it would bear the construction put on it by the pursuer; but, as the summons is laid, I think we must throw it out. The whole is altogether inconsistent. We have heard a great deal as to the law with regard to libelling on statutes generally, as to which, no doubt, much might be said were the point before us; but I agree with your Lordships that it is not here. As to the want of petitory conclusions in this summons, I must observe, that it does seem to me very questionable whether a reduction of a decree of absolritor is competent without petitory conclusions. It is quite different where the decree charges a party to pay or perform something. But I merely throw this out by the way.

Lord Mackenzie.-I think it depends on the nature of the decree to be reduced.

The Court pronounced the following interlocutor:"Refuse the prayer of the reclaiming note, and adhere to the interlocutor in so far as it sustains the first preliminary defence; dismisses the action as laid; finds the defender entitled to his expenses; and decerns: Finds the defender entitled to additional expenses; appoint an account," &c.

Lord Ordinary, Cuninghame.-Act. Deas; Wotherspoon and Mack, W.S. Agents.-Alt. Neaves, Pattison; John Rodgers, S.S.C. Agent.-W. Clerk.-W.G.T.]

SCOTTISH JURIST.

4th December 1849. FIRST DIVISION.

No. 32.-JOHN M'LENNAN, Pursuer and Respondent, v. SIMON FRASER and WILLIAM M'RAE, Defenders and Advocators.

Bill of Exchange-Novation-Delegation-Sequestration-Statute 2 and 3 Vict. c. 41, § 119-A and B granted an acceptance to C for £200, which was retired by payment of £40, and the granting of a promissory-note for £160. A having been sequestrated, entered C in his state of affairs as a creditor for £200, and was thereafter discharged on a composition. Meantime, the promissory-note having become due, C drew another bill on B for £150, which he subsequently retired himself. B having afterwards been sequestrated, Clodged a claim on his estate, founding on the £150 bill, in which he deponed that he held no other person bound for the debt, and no security for the same. Thereafter, having raised an action against A and his cautioner for the amount of composition on £160, as a debt due and owing by him at the date of his sequestration; and they having pleaded, that A's acceptance to the £160 bill was a forgery; that the substitution of the £150 bill for the former bills extinguished the debt by novation and delegation, and that the pursuer's claim was excluded by the terms of his deposition in claiming on B's estate, and by his having transacted separately with, and given time to, the debtor: Circumstances in which-Held, that whether the last promissory-note was forged or not, A was hable under his former acceptance, and in virtue of the entry in his state of affairs.

In September 1843, the defender Simon Fraser, and the late Andrew Fraser, granted a bill in favour of the pursuer for £200. The bill, on becoming due, was renewed by another for the same amount by the same parties. This second acceptance, as the pursuer averred, was retired on 8th July 1844, when due, by payment of £40, and the granting of a promissory-note for £160 by Simon and Andrew Fraser, payable four months after date. In September 1844, Simon Fraser was sequestrated; and, in the state of affairs made up by him under his sequestration, the pursuer was entered as a creditor to the amount of £200. He was ultimately discharged on a composition of 4s. per pound, for the payment of which he and the other defender William M'Rae became bound. In the meantime, the promissory-note for £160 becoming due in November 1844, the pursuer drew another bill upon Andrew Fraser for £150, which was duly accepted. The difference of £10 was paid at the time by the pursuer himself, and ultimately the bill was retired by him from his own funds. None of these bills were giver up by the pursuer on the granting of the new ones. Shortly after accepting the last bill, Andrew Fraser was sequestrated, and the pursuer lodged a claim on his estate. In this claim he founded on the bill for £150, and deponed, that "he held no other person than the said Andrew Fraser bound for the debt, and no security for the same."

Thereafter, the defenders having refused to pay the composition on the debt due to the pursuer by Simon Fraser's sequestrated estate, he raised the present action in the Sheriff-court of Dingwall for payment thereof. The summons narrated the sequestration of the defender, and his discharge on composition: That, at the date of his sequestration, the defender was resting-owing the pursuer the sum of £160, which debt arose out of certain bill transactions, as narrated above: That the pursuer was entered in the defender's state of affairs as a creditor for £200. And the summons concluded for payment of £32, as the composition due on £138:15:9, as the amount of the debt due by Simon Fraser at the date of his sequestration.

VOL. XXII.—No. IV.

In defence it was maintained, that the promissorynote for £160 libelled on was, in regard at least to Simon Fraser's name, a forgery, and that the debt had been extinguished by payments and furnishings made by Andrew Fraser to the pursuer.

The Sheriff-substitute, (Cameron), on 29th March 1817, pronounced as follows:

"Finds that, whether Simon Fraser subscribed the subsequent bill or promissory-note or not, he is liable, under the second of the two former bills, and in virtue of the entry of the pursuer in the said state of his affairs, as a creditor for the amount of that second bill, in payment to the pursuer of 4s. in the pound of whatever balance thereof may remain unpaid; and that the other defender is bound, jointly and severally with him, to this extent, under the composition-contract and bond of caution in the said process of sequestration, without the benefit of discussion: Finds it admitted that the said debt of £200 has been reduced, by partial payments from the said Andrew Fraser, the original debtor, to £138:15:1; and that the conclusion of the libel is restricted to £27: 15:1, as the amount of the composition upon this balance; but finds it averred by the defenders that the said sum of £138:15:1 has been extinguished by payments and furnishings to the pursuer by the said Andrew Fraser, or by others on his behalf, or from his estate after his death; and in respect the defenders offer to prove this averment, allows to them a proof accordingly."

A proof was accordingly led, and thereafter the Sheriff-substitute pronounced the following interlocutor:— "Finds, with reference to the interlocutor of the 29th day of March last, that the original debt of £200, due to the pursuer. stood reduced, at the date of the sequestration of the estate of the defender Simon Fraser, by payments from the estate of Andrew Fraser, to £128: 19:44: Finds that, although it was subsequently reduced still further by additional payments from the same source, yet the pursuer is entitled to be ranked, and to draw a composition or dividend from the estate of the defender for the amount of the balance remaining due at the date of the defender's sequestration-such composition or dividend not exceeding full payment of the pursuer's claim: Recals, therefore, the interlocutor of the 21st day of October, and finds the defenders, jointly and severally, liable to the pursuer, agreeably to the said interlocutor of the 29th day of March, in a composition of 4s. in the pound on the sum of £128: 19:43, amounting to £25:15:10, with interest as libelled."

The defenders advocated, and pleaded-1. The pursuer having libelled on the promissory-note for £160, it was incompetent to go back on the prior retired bills; and the defenders ought to have been allowed a proof of their averment of forgery, in respect that, if they had succeeded in this proof, there would have been no relevant libel. 2. In consequence of the respondents transacting separately with, and giving time to, the debtor, whereby he tied up the hands of the advocator Simon Fraser, all claim at the instance of the respondent against the advocator was extinguished. 3. The substitution of the bill for £150 for the promissory-note for £160, extinguished the debt against Simon Fraser both by novation and delegation. 4. The pursuer having, in making his claim on Andrew Fraser's estate, deponed that he held no other person bound for the debt, and no security for the same, he had, by so doing, admitted that he had no claim against Simon Fraser.

The pursuer pleaded-1. The action is not libelled on the £160 bill exclusively, but on a debt due by the defender. The averment of forgery is not relevant; for, even admitting that the defender did not sign the £160 bill, the only effect of this would be to render him liable under the former one. 2. Irrespective of the bills altogether, the debt is proved by the entry

made by the defender in the state of his affairs, which the bankrupt act (2 and 3 Vict. c. 41, § 119) declares to be conclusive against both defenders. 3. The taking of the bill from Andrew Fraser was only in security of the debt. Simon Fraser being bankrupt, could not join in this bill; the debt quoad him was secured by his sequestration; and the bill for £160 was not given up by the pursuer on receiving Andrew Fraser's acceptance. The whole circumstances show that the bill for £150 was not a substitution for the former one, but was only intended to keep up the debt against Andrew Fraser on the same footing as before. 4. The affidavit which the pursuer made in Andrew Fraser's sequestration was correct. He had, in point of fact, no other debtor in the bill than Andrew Fraser; and, besides, all that the bankrupt act requires is, that the creditor, when he "holds any security from an obligant liable in relief to the bankrupt," is, in such case, bound to deduct the value.

The Lord Ordinary pronounced the following interlocutor:

:

:

"20th July 1848.-The Lord Ordinary having heard counsel for the parties, and considered the closed record, proof, productions, and whole process, finds, primo, That in respect of the bill transactions libelled (for £200), and whether the subscription purporting to be the subscription of the advocator Simon Fraser, on the promissory-note for £160, be a forgery or not, the said Simon Fraser was, at the date of his sequestration, on 26th September 1844, along with Andrew Fraser, the other party to the said bills, indebted to the respondent in the sum of £128: 19:44 Secundo, That the said advocator, accordingly, in the state of affairs submitted by him to his creditors under said sequestration, gave up the respondent, in the list of his creditors, as creditor for said debt, though not being then aware at that time of certain payments made in reduction thereof by the said Andrew Fraser, he erroneously estimated its amount as being still £200: Tertio, That while the existence of the debt was thus distinctly recognized, the said advocator thereafter settled with his whole creditors under said sequestration by a composition-contract, duly carried through in terms of the bankrupt statute, and afterwards obtained his discharge with reference thereto-the cautioners for said composition being himself, and the other advocator William M.Rae; and it is not alleged that the said debt was either objected to in the offer of composition, or notice in writing of any such objection given to the respondent, as the creditor in right thereof: Quarto, That it has not been proved that the said debt was to any extent (so as to be available in the present question) reduced, by payment or otherwise, subsequent to the date of the said sequestrationany payments or dividends thereafter received from the estate of the other co-obligant not being sufficient, along with the foresaid composition, to operate payment and satisfaction thereof in full, as the same stood at the date of the sequestration in the respondent's person: Quinto, That as regards the additional pleas (2d and 3d) now founded on the promissory-note for £150, obtained by the respondent, subsequent to Simon Fraser's sequestration, from Andrew Fraser, the other co-obligant in the original debt, there is neither any statement of fact upon the record sufficient to support the said pleas, nor are the said pleas otherwise in themselves well-founded; inasmuch as (1.) the respondent having retained the prior bills, with all his rights, qua creditor, in respect of the same, and having afterwards to retire the said promissory-note with his own means, the taking of said promissory-note (being but the taking of an additional security for the original debt) in nowise operated as a discharge or extinction thereof; and, (2.) the taking of such additional security did not, in any right legal sense, amount, in the circumstances, to a giving of time, and so did not operate, on that ground, any liberation from liability in favour either of the advocator Simon Fraser, or his sequestrated estate: And, sexto, That, on the whole matter, both the advocators are, as the Sheriff has found, liable to the respondent, jointly and severally, in pay ment of the sum of £25: 15: 104, as the stipulated composition due on the foresaid debt of £128: 19: 4, with interest as li-4

belled: Therefore, repels the reasons of advocation, and remits the cause simpliciter to the Sheriff: Finds the respondent entitled to expenses; allows an account," &c.

The defenders reclaimed.

Lord Justice-General.—There is a little ambiguity in the Inferior Court record as to the libelling of the action. But I am satisfied that the substance of it is, that it is the debt, and not the bill for £160, on which the summons is libelled. Then the debt is entered by the defender himself in the state of his affairs as one due by him. That is enough of itself. I agree with the Lord Ordinary that it is of no consequence in this case whether the bill was forged or not. I also concur with him in bolding, that there was no giving of time here, in the proper sense. The bill of Andrew Fraser was only an additional security, which the pursuer was entitled to take.

Lord Mackenzie.-I am of the same opinion, and I really don't think it necessary to go into the reasons of my opinion, as I agree with the Lord Ordinary, who has stated the grounds sufficiently. It cannot be said that there was any giving of time here. Lord Fullerton.-I am of the same opinion. There is a little puzzle at first sight from the fact of the bill for £160, alleged to be forged, being founded on by the pursuer in his affidavit in making his claim on the defender's estate. But this is explained by the circumstance, that it was not till after the raising of this action that the bill was challenged. Looking to all the circumstances, I don't think it at all matters whether this bill was signed by the defender or not.

Lord Jeffrey.-I have the same opinion. There is some awkwardness in the record on both sides. On the one hand, the summons is libelled loosely; and, on the other, there is no statement of fact by the defenders in support of the plea of novation. I think it is impossible to hold that the second bill for £200 was retired by the bill for £160, unless this last is admitted to be a genuine one. So that the only effect of proving it forged would be to rear up the former one as a ground of debt. But it is quite clear that, if it was forged, the pursuer could have had nothing to do with the forgery; for it is not to be imagined that he would have taken pains to provide himself with a bad and worthless document of debt, when he was already provided with a good one. He must therefore have taken it in bona fide. The allegation of forgery, as made on record, is very suspicious. As to the plea of novation, there is no room for it here. The pursuer, no doubt, took the bill from Andrew Fraser, but this was only an additional security. He did not give up, on the contrary he retained in his own possession, all the old bills. Neither do I think it necessary that he should have made any deduction in his claim on Andrew Fraser's estate; the defender's own allegation on record being, that Andrew, so far from having a claim of relief against him, was the principal debtor himself. I am satisfied, in short, that both justice and law are on one side here.

The Court adhered.

Lord Ordinary, Ivory.-Act. Neaves, E. Fraser; Martin and Ross, W.S.Agents.—Alt. Anderson, Wood; L. Mackintosh, S.S.C. Agent.-L. Clerk.—{W.G.T.]

4th December 1849. FIRST DIVISION.

No. 33.-JAMES STEVENSON, Claimant, v. ANDREW GEDDES, Claimant.

Competition-Multiplepoinding — Riding Interest - Title to Pursue Process-A party died in Jamaica, leaving a will by which he appointed two executors, one of whom was resident there. The other having made up titles in Scotland, he raised a multiplepoinding with regard to certain funds of the deceased, in which process a party appeared and claimed as on a riding interest, in respect that he was heir as nearest of kin to a party with whose effects the deceased, in name of executor, had unlawfully intromitted. The executor, not admitting the claimant's statement— Objected, That as the claim was not constituted, it could not be admitted in the competition as a riding interest. Objection sustained, and claim repelled.

The fund in medio in the present action of multiplepoinding was the sum of £1116:4:1, lodged on 28th

October 1843, on deposit-receipt with the branch of the Royal Bank at Glasgow, by the deceased James Stevenson, of Jamaica. The deceased died in May 1844, leaving a will by which he appointed the claimant Stevenson his executor, along with another person, who was resident in Jamaica. Stevenson made up titles as executor both in England and in this country; and the Royal Bank, though admitting his title, having declined to pay him the sum in their hands except on production of the deposit-receipt, he raised the present action in their name. The only other claimant was Geddes, who stated that he was

"the only brother and next of kin of John Geddes, who died unmarried, and without lawful issue, in Jamaica, in the year 1832. John Geddes was possessed of property in Jamaica, which he settled by will, dated the 13th of January 1832, wherein he appointed the late James Stevenson his executor. That will, however, was good only as regarded Geddes' property in Jamaica, and was null as to his funds in England, in respect to which he died intestate. The late James Stevenson undertook the management of, and intromitted with, the estate of Jolin Geddes. He was aware of the existence of the claimant, and of his relationship to the testator; and, on the 29th of July 1837, he was advised that the beneficiaries under Mr. Geddes' will were not entitled to any portion of his funds in England, but that the same were the property of the claimant. Notwithstanding this knowledge and advice, Mr. Stevenson uplifted and intromitted with these funds, and concealed the facts of their existence, and of his right thereto, from the claimant, who was only apprised of these facts about two years ago."

On this statement Geddes claimed the fund in medio as having a riding interest, in respect of his claim on the deceased Stevenson for his intromissions with the estate of the late Geddes.

None of Geddes' statements were admitted by Stevenson.

The Lord Ordinary pronounced the following interlocutor:

"Finds that the nominal raisers, the Royal Bank, will be in perfect safety to pay the said sum to the party preferred in this process, in respect that the holder of the said receipt has failed to appear and establish any claim under the said receipt retained by him, which is not a negotiable document: Prefers the said James Stevenson, the claimant, to the said fund, and interest due thereon, subject to such claim as the other claimant, Andrew Geddes, as a creditor of the defunct, may be able to instruct; and appoints these parties to be farther heard on any question inter se."

Thereafter his Lordship pronounced as follows: -"3d July 1849.-The Lord Ordinary having heard counsel on the claim of Andrew Geddes, in this multiplepoinding, as a rider on the claim of James Stevenson, the executor confirmed in Scotland of the deceased James Stevenson, of Jamaica, preferred to the fund in medio by interlocutor of 21st June last, sustains the competency of the claim of the said Andrew Geddes, setting forth that he is the representative, or one of the representatives, of the deceased John Geddes, of Jamaica, and an alleged creditor of the said deceased James Stevenson, of Jamaica; repels all objections to the competency of the claimant's establishing in this Court, and against the executor resident in Scotland, who holds a large fund in his hand, his right to payment of such part thereof as may afterwards be satisfactorily instructed as due to the claimant; and, therefore, before answer, remits the process and whole productions to Mr. William Moncrieff, accountant, to examine the claim of Geddes, and the vouchers produced, or that may be produced, in reference thereto, with power to the accountant, if necessary, to call for such further documents as he may think necessary to instruct the claim of the deceased John Geddes, and the claimant's right thereto, in whole or in part; requesting the accountant, as soon as convenient, to communicate to the parties, by note or otherwise, if any farther accounts or documents are required from Jamaica, to enable him to make a report to the Court; all to be reported on or before the 12th day of November next.”