house in which the furniture was placed. He did not, however, obtain possession of the furniture, nor delivery of the assignment, being kept in ignorance that the latter had been executed. Some days after he made a further payment of £28 to account. These two sums exhausted the price of the furniture except the sum of £13, which he retained in order to meet a claim of rent for which the furniture was liable.

Shortly after the defender Major was elected and confirmed trustee on the bankrupt estate.

On the 7th December the pursuer paid the £13 to the landlord. The defender then threatened to sell the furniture de plano, by public roup, without offering any relief to the pursuer.

The pursuer applied to the Sheriff of Lanarkshire for interdict to prevent the defender from proceeding with the sale.

The Sheriff-substitute pronounced an interlocutor, finding the facts as above stated, and pronouncing the following finding in law, and decerniture:

"That there having been no other terms expressed in the original agreement for the purchase of the furniture, the same was not legally deliverable, nor had the purchaser any valid right or title thereto, except unico contextu with payment of the price to a party legally qualified and authorized to receive the same: Finds that, notwithstanding the pursuer's bona fides in the transactions, he was bound to see that he did at the time, and from time to time, transact with a party legally so qualified, the more especially as the creditors appear to have prosecuted, with all due diligence, the measures for the removal of the trustee and the election of his successor, and not to have been aware of the late trustee's intention to up. lift the money from the pursuer: Finds, for that reason, and also because the pursuer never attained the natural possession of the furniture, that he is not entitled in law to vindicate his alleged title to possess under the assignment obtained by him a non habente potestatem, to the effect of either absolutely preventing the present trustee from now taking possession thereof, or even of requiring him, before taking such possession, to refund the two payments made to his predecessor after he was deprived of his office: Finds, however, in regard to the rent paid by the pursuer, after the present defender had been appointed, and the demand for which formed a nexus upon the furniture available against all concerned, that the defender ought, in any view, to have offered to indemnify the pursuer against that payment, which was evidently in rem versam of the bankrupt estate: Therefore, to that extent, and until the defender shall repay to the pursuer the foresaid sum of £13 and interest, interdicts, prohibits, and discharges, in terms of the prayer of the petition; and quoad ultra assoilzies the defender from the conclusions for interdict: Finds the defender liable in expenses, in respect of his having refused all indemnification, but subject to modification in respect of the pursuer's having failed upon certain of the main conclusions of his action; allows an account of said expenses to be given in, and remits the same to the auditor to tax and report: Reserves to the pursuer all competent action against William Dodds and his cautioners, against the pursuer, and against the sequestrated estate and funds, for count and reckoning, or for breach of bargain or otherwise, and to them their defences as accords; and decerns."

The Sheriff, on appeals by both parties, adhered.
Both parties advocated. At advising-

Lord Ivory. This is a question between a seller and purchaser. We have nothing to do here with the real right of property. The sale took place under powers and directions given by the creditors, and the assignment of the 15th and 16th June carried out that sale. It is true, delivery did not then take place, but the assignment was evidence of the sale, and of the right of the purchaser to have delivery on payment of the price; at all events, there was such a relation formed as to prevent the parties taking the law into their own hands. The question then comes-has the price been paid? Had there been no change of trustee, there would have been no doubt that

the receipts by Dodds would have been sufficient evidence of payment. But I think, that notwithstanding the intervening gazette notice, and the removal of Dodds, the payments were made to him in bona fide, and must be sustained If the creditors had wished to prevent the completion of the sale, they should have got the deed out of the hands of the old trustee, for its possession accredited him as entitled to receive payments under it. As to the £13 retained and paid as rents, that was clearly a proper application of the balance of the purchasemoney. It is needless to inquire whether the furniture was delivered. The obligation to sell is enough, supported by the payments made in bona fide. I think, therefore, that the interdict must be granted.

Lord Curriehill.-I concur. The assignment, as being in implement of a prior contract, fell under the class of writs which, according to Mr Erskine, do not require delivery.

Lord Deas.-This is a somewhat suspicious transaction; but suspicion is not proof. The creditors allege that Mitchell knew the meeting was called for Dodds' removal before he paid any part of the price; but they lead no proof except by adducing Mitchell himself, who denies all such knowledge. I take the transaction, therefore, as a bona fide one; and the whole question then comes to be-which party was most to blame for the payment being made to the wrong person? 1 think the creditors were most to blame. They had authorized the trustee, Dodds, and the commissioners to sell by private bargain, and the commissioners, as representing the creditors, sign the assignation, and entrust it to Dodds,-thus giving him the power to deliver the assignation, and get payment of the price, which he does. The creditors empower the commissioners to act for them, and for any rashness on the part of the commissioners, whereby Mitchell, the purchaser, was misled, the creditors must be responsible. Actual delivery of the furniture, by getting it into his own possession, might have been material or conclusive for Dodds, but it does not follow that his jus ad rem is not sufficient without such delivery in a question with the creditors, the sellers, acting through those they had empowered to represent them. The Lord President concurred.

The following interlocutor was pronounced:

"The Lords having heard counsel for the parties in this advocation, and in the counter [advocation Major v. Mitchell, conjoin the said two advocations, advocate the cause, and recall the interlocutors submitted to review: Find it proved, in point of fact-1st, That early in June 1855 there was a concluded agreement between John Mitchell, petitioner in the Court below, and William Dodds, the trustee on the sequestrated estates of J. B. Gibb and Co., and as having full authority to that effect from the creditors and commissioners, for the purchase and sale of the household furniture belonging to, and then in the possession of, William Gibb, one of the bankrupts, at the price of £61:18:6, which agreement was subsequently embodied and set forth in a deed of assignation executed by the said William Dodds, as trustee foresaid, and by the said commissioners, of dates the 15th and 16th June 1855; 2d, That under and in respect of this agree ment, two payments to account of the price were made by the said John Mitchell to the said William Dodds, viz., one of £20, on the 5th July 1855, and the other of £28, a few days thereafter, while a third sum of £13, which was at first retained by the said John Mitchell in respect of the half-year's rent due for the bankrupt's house for the Martinmas following, and for which the said furniture stood subject to the landlord's hypothec, was afterwards (7th December 1855) paid by the said John Mitchell to the landlord in satisfaction and extinction of the said half-year's rent; 3d, That although at the respective dates of the said two payments to William Dodds, it now appears that the said William Dodds had been removed by the creditors from his office of trustee, yet as no notice nor interpellation to that effect was, either at or prior to said payments, made by the creditors to the said John Mitchell; and, on the contrary, the said William Dodds was still ostensibly accredited as trustee in the matter of the said sale, having been left by the creditors in possession of the documents connected with the sale, and especially of the foresaid deed of assignation, executed by authority of the creditors, and with concurrence of the commissioners, in favour of the said John Mitchell, and the said assignation was accordingly, upon occasion of the

foresaid second payment, delivered by the said William Dodds, still holding the ostensible character of trustee to the said John Mitchell, as in implement and execution of the sale; 4th, That the payments of £20 and £28, made to the said William Dodds by the said John Mitchell as aforesaid, were made by the said John Mitchell in the bona fide belief that the said William Dodds did still actually hold the office of trustee, and, as such, was entitled to represent and act for the creditors, and that the said John Mitchell was in utter ignorance either that the said William Dodds had been removed from the said office, or even that any steps had been taken by the creditors with that view Find, in these circumstances, in point of law, that, in respect of the bona fides of the said John Mitchell, induced as it was by the proceedings of the creditors themselves, the two payments made by him to the said William Dodds are to be held as having been made to one duly entitled to represent the creditors and bankrupt estate, and consequently are in this question to be imputed pro tanto in satisfaction and extinction of the price of the furniture: That, as to the remaining £13, being within a few shillings of the balance of said price, the said John Mitchell was entitled at first to retain the same in security and relief as against the landlord's claims, and afterwards to pay the same to the landlord in satisfaction of his hypothec, and in discharge of the rent, for which the creditors would otherwise have been liable; and generally, that, in the whole circumstances, the creditors and their new trustee, the advocator John William Major, respondent in the Court below, were not entitled to dispose, by a second sale or otherwise, of the household furniture in dispute, and that the said John Mitchell was entitled to seek protection by interdict against any such threatened or attempted proceedings: Therefore, interdict, prohibit, and discharge as craved, and decern: Find the said John Mitchell entitled to expenses of process, both in this Court and the Court below; allow an account," &c.

Act. Penney, Pattison; A. K. Morison, S.S.C. Agent.-Alt. Dean of Faculty (Inglis) Monro; Ferguson and Stuart, W.S. Agents.-C. Clerk.-(W.H.T.)

13th November 1856. FIRST DIVISION.

WILLIAM PATERSON, Pursuer, v. JANET GOVAN or BAXTER and HUSBAND, Defenders. Process-Proof-Diligence against Havers-Bill of Exchange -In an action for payment of a bill of exchange, the defence was non-onerosity. After the record was closed, but before the mode of proof had been determined, the defender applied for a diligence to recover writings, many of which were not the writ of the pursuer― Diligence refused hoc statu.

This was an action for payment of the contents of a bill of exchange for £190, bearing to be accepted by the female defender prior to her marriage. The pursuer, in the record, made various averments stating how the debt had been contracted, and the circumstances in which the bill had been granted. In particular, he averred that he had from his own funds paid certain business accounts for the defender, one of them being an account due by her to his father. The defence consisted in a denial of a part of the alleged debt, and a statement, that though the signature on the bill was really the defender's, she had signed a blank stamp, intending it for a smaller sum, and that the pursuer 66 have filled it up " for a greater one. The record being closed, the case appeared in the Lord Ordinary's debate roll. At this stage of the case the defender applied for a diligence to recover the books of the pursuer, and those of his late father; all letters addressed to them by the defender; the testament of the pursuer's father; and all bills, receipts or vouchers of sums paid by the pursuer or his father by or on behalf of the defender.

seems to

The Lord Ordinary having granted the diligence, the

pursuer reclaimed, and contended, that, in respect the defence amounted to a plea of non-onerosity, it was a case in which the defender could only overcome the presumption of onerosity attaching to the bill by the writ or oath of the pursuer; that the mode of proof being thus limited, it was incompetent for the defenders to call for production of any documents not falling under the category of the pursuer's writ, a description which applied to only a very small number of the writings called for in the specification. Moreover, the mode of proof not having been yet judicially determined, but being about to form the subject of debate, it was premature at this stage of the proceedings to grant a diligence against havers at all.

The defenders contended, that this was the natural and proper stage to apply for a diligence to recover writings in modum probationis. Some of the documents called for were the pursuer's writ. As to the others, they had an obvious bearing upon the averments of the pursuer in regard to the manner in which the alleged debt had been incurred; and should it come to be determined by his oath of reference, they could be made use of by being shown to him while emitting his oath, to refresh his recollection, or as the ground of a line of examination on the details of the transaction.

Lord President. This is not an application for a diligence prior to the closing of the record, and so far it is in a more favourable position than many such applications. It occurs, however, in a case belonging to a particular class, in which the mode of proof is peculiar and limited. The action is upon a bill, and the defence is non-onerosity. In this state of things, the defender applies for a diligence comprehending a great variety of documents, some of which are said to be the pursuer's writ, but a large portion of which evidently do not fall under that designation. The first thing to be considered is the mode of proof. I propose, therefore, to recall the interlocutor refusing the diligence hoc statu, and remit to the Lord Ordinary. Lord Ivory.-I am not quite satisfied with this in the case of a party who stands upon the privileges of his bill, and yet makes such detailed statements as almost resolve this case into an accounting. It may have been an error, however, that the Lord Ordinary has granted this before hearing parties on the cause generally.

Lord Curriehill.-I entirely agree with your Lordship in the chair.

Lord Deas. This is an action on a bill. If the pursuer had stood upon his bill and said nothing as to how the value was made up, he would have been entitled to the benefit of the rule of law that non-onerosity could only be proved by his writ or oath. Does he forfeit that benefit by entering into details about the value which were unnecessary? I am not prepared to assume that. And, if this be not assumed, then we can only grant the diligence, as the Lord Ordinary has virtually done, before answer. The propriety of that course comes thus to be the question. I think the more correct course would be to limit the diligence to the pursuer's writ, which would include his books; and to allow the question as to a farther diligence to stand over till the competency of a proof at large should be determined. But, as your Lordships seem to think the specification is not properly framed for the limited purpose I have referred to, I do not object to the total recall of the interlocutor in hoc statu.

The following interlocutor was pronounced:"Recall in hoc statu the Lord Ordinary's interlocutor of 28th June last, and remit to the Lord Ordinary to proceed with the cause, without prejudice to his Lordship's granting diligence to recover writ of the pursuer to instruct his non-onerosity as holder of the bill sued for, or to his Lordship afterwards grant. ing more general diligence, if, upon hearing parties on the merits of the cause, he sees cause to do so; and reserve all questions of expenses."

Lord Ordinary, Ardmillan.-Act. Penney, W. H. Thomson; J. and J. Macandrew, S.S.C. Agents.-Alt. Macfarlane; J. Leishman, W.S. Agent.-C. Clerk.—(W.H.T.)

13th November 1856.

SECOND DIVISION.

JOHN ANDERSON and Others (Blaikie's Trustees), Pursuers, v. M. WILSON and SONS, and Individual Partners, Defenders.

Contract-Sale-A dispute having occurred between a vendor's representatives and a vendee, as to the price of wool sold, the vendee, in respect that his views as to the meaning of the contract had not been adopted, refused to implement the contract. The pursuers raised an action for the price, in which they eventually admitted that the vendee was right in his views-Held, that they could not enforce implement, and that the vendee was entitled to repudiate the whole transaction.

The pursuers are the trustees of the late Mr Blaikie, farmer at Stow. The action was originally raised in the Sheriff-Court of Roxburghshire against the defenders, wool merchants in Hawick, for the sum of £152: 17s. Sd., being the price of 94 stones 2 lbs. of wool sold by Mr Blaikie to them in August 1853.

The defenders having been unsuccessful in the SheriffCourt, advocated the cause, and the facts are sufficiently stated in the Lord Ordinary's interlocutor, in which he "Advocates the cause: Finds that a purchase of a clip of wool was made by the defender John Fiddes Wilson from the late Mr Blaikie, of whom the pursuers are the testamentary trustees: Finds that the terms of the bargain were not reduced to writing, and that the defenders and the pursuers differed as to the terms on which the purchase was made: Finds that the pursuers obtained possession of the wool, offering delivery only on payment by the defenders of the price, according to an invoice sent by them, and the defenders refusing to take delivery, excepting on the terms on which they represented they had made the purchase: Finds that the pursuers not having acceded to the defenders' terms, they declined to take, and rejected the wool: Finds that the pursuers thereupon brought the process under advocation, in which they concluded for a certain sum as the alleged price of the wool stated to be deposited in the warehouse ready to be delivered up to the defenders on payment of the said price, interest due thereon, warehouse rent, and expenses of process: Finds that the Sheriff-substitute pronounced an interlocutor which was acquiesced in by the pursuers, and became final, 'finding it admitted by the letter produced in process, and also by the statements in the record, that the defenders purchased the clip of wool in question from the late Mr Blaikie, and that there was thus a concluded bargain betwixt the parties to that effect; but finds that this admission, being the only evidence of the contract, must be received with its qualifications, viz., that if the wool should fall in value, the price was to be 31s. 6d. per stone, and that the cotted fleeces were to be at half price, or half weight; and in respect parties were at issue as to the alleged fall in price, and alleged weights, before answer, allows them a proof of their respective averments, and to both parties a conjunct probation: Finds that the pursuers did not lead any proof, but lodged a minute restricting their claim against the defenders to the price of 31s. 6d. per stone, and agreeing to accept half price for the cotted or padded fleeces: Finds that, in abandoning the leading of any proof, and so restricting their claim, the pursuers accepted the terms of the bargain which were asserted by the defenders, and which they offered to implement: Finds that, under these circumstances, the pursuers failed to establish the terms of the bargain as averred by them upon record: Finds, that having so failed, they were not warranted in having withheld delivery from the defenders, and that the defenders were entitled to refuse taking delivery on the terms required, and to reject the wool and void the purchase: Therefore recalls the interlocutor complained of; assoilzies the defenders from the conclusions of the action, and decerns: Finds them entitled to expenses of process in the Sheriff-Court, and in this Court; allows accounts thereof to be given in, and remits to the auditor to tax the same, when lodged, and to report.

"Note.-The Lord Ordinary regrets that he is unable to adopt the judgment of the Sheriff, for the result is unfortunate to the trustees of Mr Blaikie, whose proceedings were quite natural

under the circumstances. But he conceives that the previous interlocutor of the Sheriff-substitute proceeds on a sounder view of the legal position of the parties. The short view of the case is, that the respondents found themselves unable to establish, by the necessary evidence, the terms of the bargain as represented by them, both when they withheld delivery, and subsequently under the summons raised by them. It appears to follow, that the advocators must be held to have been in the right as to the terms of the bargain, and, on the refusal of the respondents to give delivery except on their own terms, became entitled to throw up the bargain The expenses of the action must, in the usual course, be allowed to the ad. vocators."

The pursuers reclaimed, arguing, that, in the circumstances, the conduct of the pursuers did not entitle the defenders to annul the completed contract of sale.

Counsel for the defenders was not called upon.

Lord Justice-Clerk.-The pursuers have here admitted the statement of the defenders to be right, but they would not acquiesce in it, but insisted on bringing an action. They knew the view taken by the defenders, and that they had repudiated the contract altogether. Had they acquiesced in the defenders' view at first, when it was made known to them, they might have been entitled to insist upon implement, but they did not do this. We must adhere. The other Judges concurred.

Adhere, with expenses.

Lord Ordinary, Handyside.-Act. G. Graham Bell, Lee; W. Horsburgh, W.S. Agent.-Alt. Penney, Watson; J. Somerville, S.S.C. Agent.-I. Clerk.-(G.R.O.)

14th November 1856. FIRST DIVISION.

Process-Bankrupt-Act 19 and 20 Vict., c. 79-In all sequestrations awarded on or after the 1st Nov. 1856, the award and other proceedings must be under the Act 19 and 20 Vict., c. 79, even where the petition has been presented under the former act; and no interlocutor stating that the procedure is now to be under the new act is, in any case, required.

Lord Mackenzie verbally reported the following difficulties which had occurred under the new Bankrupt Act, 19 and 20 Vict., c. 79, particularly in the petition. for the sequestration of the estate of the deceased W. M. Mackenzie.

By the 1st section of the said act it is enacted, that it "shall come into operation on and after the 1st day of November 1856."

By the 2d section, the Acts 54 Geo. III., c. 137, 2 and 3 Vict., c. 41, and 16 and 17 Vict., c. 53, are repealed, "saving always their effect in regard to any act or deed done or granted prior to the date of this act coming into operation."

The 3d section is as follows:

"All sequestrations awarded on and after the said date, or proceedings occurring on or after the said date in sequestrations which have been awarded before it under former acts, unless it be otherwise herein after provided, shall, if and so soon as an interlocutor to that effect pronounced by the Lord Ordinary shall become final, or if and so soon as an interlocutor to that effect shall be pronounced by the Court, be regulated by this act: Provided always, that until such interlocutor by the Lord Ordinary shall become final, or until such interlocutor shall be pronounced by the Court, proceedings in sequestrations awarded before the said date shall be conducted as if the acts hereby repealed were still in force, and such proceedings shall thereon be as valid as if the said acts were unrepealed."

By the 17th section it is made competent for sequestrations to be awarded either by the Court of Session

or by the Sheriff of the county where the bankrupt has resided or carried on business.

Under the 3d section two questions had been raised -(First,) Where sequestrations were applied for and awarded after the 1st November 1856, whether it was necessary that there should be an interlocutor by the Lord Ordinary or the Court declaring that the proceedings should be regulated by the new act? and, (Second,) Where proceedings had commenced under the old act by orders for intimation, but no sequestration had been awarded prior to the 1st November 1856, whether it was competent to award sequestration under the new act; and, if it was so, whether it was necessary to pronounce an interlocutor declaring that the proceedings should be regulated by the new act?

The Court was unanimously of opinion, that in all sequestrations applied for and awarded after the 1st November 1856, the proceedings must necessarily be under the new act, and no interlocutor declaring this was required; and further, that where proceedings had commenced under the old act, but sequestration had not been awarded prior to 1st November 1856, it was competent to award sequestration under the new act, and that, in that case also, no interlocutor was necessary declaring that the proceedings should be regulated by the new act.

Lord President.-The 3d section contemplates only two classes of cases-1st, where sequestration is awarded on or after the 1st November; 2d, where there are "proceedings occurring on or after the said date in sequestrations which have been awarded before it under former acts." In one of the cases now stated, sequestration is to be awarded after that date, but the proceedings were begun before it. I think it is competent, in these circumstances, to award sequestration; and the only question is-whether any special interlocutor is required to bring it under the new act. Though this might be done, I rather think it is not required.

Lord Ivory.-The difficulty results from being overscrupulous. The 3d section includes all sequestrations-those awarded under the new act, and those awarded before it. As to those which have been applied for before it came into operation, there is a saving clause, saving the former procedure, and then the new act comes in to regulate the award.

Lord Curriehill.-The reasoning of Lord Ivory appears to me to be unanswerable. Whatever has been done before the operation of the new act is to be valid under the saving clause, then under the 3d section the award comes in. All is clear and safe.

Lord Deas concurred.

It was suggested from the bar that the interlocutor awarding the sequestration in the case of Mackenzie would be disconform to the prayer of the petition.

Lord Mackenzie.-The prayer is blank as to the meetings, &c., and the clerk will see that the interlocutor is right.

Act. G. G. Bell; James Steuart, W.S., Agent.-W.H.T.)

14th November 1856.

FIRST DIVISION.

KEDDIE AND Co., Pursuers, v. J. AND J. GRAY, Defenders. Process-Partibus-A pursuer having designed the defender incorrectly in the partibus of his summons, the defender objected to it in the form of a preliminary defence. At the first enrolment of the case, the Lord Ordinary reported the matter to the Court. Decree of absolvitor pronounced, and the pursuer subjected in the expenses of the discussion. Observed, that this was not strictly a preliminary defence.

This case was verbally reported by the Lord Ordinary

on the following objection by the defenders, which they had stated as a preliminary defence.

66

It appeared that in the body of the summons the defenders were correctly described as J. and J. Gray of the North British Advertiser, Melbourne Place,” but in the partibus they were designated "J. and J. Gray of the Edinburgh Advertiser," which was not their proper designation. After some discussion, the pursuers agreed to abandon the case under the present summons.

Lord President.-The proper course is for the pursuer to call the case anew, with amended partibus. Of course the defenders will be entitled to the expense of stating this objection, and, in the meantime, we can pronounce decree of absolvitor.

Lord Deas.-I think the parties ought to adjust this matter. I am not satisfied that this objection by the defenders to a defect in their own designation, if pushed to a judgment before the Lord Ordinary, ought to go any deeper than to induce the Lord Ordinary to continue the cause, so as to give opportunity for applying to the Court for authority to correct the error. But if the matter be arranged it is unnecessary to go into this question. The party committing the error must of course be responsible for expenses caused by it.

Lord Ivory.-Strictly speaking, the case has never been properly enrolled, and is therefore non coram judice. Lord President.-I understand the parties to be satisfied with the interlocutor we propose to pronounce.

Defenders assoilzied, with £2: 2s. of expenses.

Lord Ordinary, Benholme.-Act. Maidment; William Wallace, W.S. Agent.-Alt. Moir; Murdoch and Boyd, S.S.C. Agents. Clerk.-(W.H.T.)

15th November 1856.

SECOND DIVISION.

JAMES MURRAY, Appellant, v. THOMAS HUGH DONNELLY, Respondent.

Sequestration-Bankrupt-Personal Protection-Title to Sue -Held, that a bankrupt has sufficient locus standi to insist in an appeal on the question whether personal protection has been duly granted or not.

Sequestration-Creditor-Right to Vote-Voucher-An insurance broker claimed to vote in a sequestration for premiums paid by him for the bankrupt on a policy of insurance-the only voucher produced was an excerpt from his books-Held insufficient, and vote rejected.

Sequestration-Creditor-Right to Vote-Vitiation of Signature-Objected to a creditor's right to vote, that his signature to the affidavit was vitiated by an erasure, and was ex facie different from his signature on a bill produced along therewith as the voucher of debt.-Objection sustained.

This

Thomas Hugh Donnelly, surgeon, and lately shipowner in Greenock, was sequestrated on 16th June 1856. At the meeting held after the bankrupt's examination on 26th July, four creditors being present, a motion was made by James Donnelly, the bankrupt's brother, and largest creditor, that the personal protection should be renewed for two years. was opposed by James Murray, the appellant, and upon a division the other creditors, Messrs Sellar and Robertson and Thomas M'Alindon, voted for Donnelly's motion, Mr Murray alone supporting the amendment. Reciprocal protests were taken against the validity of the votes on either side, and Mr Murray appealed to the Sheriff. The trustee, at the sametime, as there was an apparent majority in number and value of the creditors in favour of the renewal of the protection, applied to the Sheriff to grant the renewal.

The Sheriff pronounced the following interlocutor:

"In respect that at the meeting of creditors of T. H. Donnelly, held on 26th July last, no specific objections of the sort now proponed were stated to the claims and votes of any of the creditors who then attended and who voted for the bankrupt's continued protection; and in respect that the creditors who so voted were a majority in number and value of the creditors present at the meeting-Finds that it is incompetent at this stage, under the form of an appeal against the resolution of the meeting, to advance objections to the votes of the creditors by whom the resolution was supported and carried, and therefore repels the objections; and, in terms of the resolution, grants protection as craved: Finds no expenses due, and decerns."

Two appeals were brought against this interlocutor, one by Mr Murray, on the merits, and a second by the bankrupt, for expenses. The facts will be found sufficiently stated in the note appended to the Lord Ordinary's interlocutor, by which he

"Recalls the interlocutor of the Sheriff-substitute complained of, dated 26th August 1856: Finds that the resolution that the bankrupt's personal protection should be renewed, was not carried by a legal majority in number of the creditors present and entitled to vote at the meeting held on 26th July 1856: Therefore sustains the appeal at the instance of James Murray against the said resolution, and refuses the prayer of the petition for renewal of the personal protection to the bankrupt: Dismisses the counter appeal for James Donnelly and the bankrupt: Finds them liable in expenses to the ap pellant James Murray, both in this Court and before the Sheriff; allows an account thereof to be given in, and remits, &c.

"Note.-At the general meeting held 26th July 1856, three creditors voted that the personal protection to the bankrupt should be renewed for two years from that date. These creditors were James Donnelly, the bankrupt's brother, who claims to be ranked, under three separate affidavits, for £683: 7s.; Hugh Dempster, as mandatory for Sellar and Robertson, claiming to be ranked for £63: 3s.; and the said Hugh Dempster, as mandatory for Thomas M'Alindon, claiming to be ranked for £28:9:8. On the other hand, James Murray, whose claim amounts to £114: 0:3, moved and voted that the bankrupt's personal protection should not be renewed. There was thus an apparent majority of the creditors, both in number and value, in favour of the resolution that the personal protection should be renewed for two years.

"It appears from the minutes of the meeting that James Murray protested against the validity of the votes tendered for the motion of the said James Donnelly,' and this was followed by an appeal to the Sheriff against the resolution. At the same time, the trustee presented a petition to the Sheriff to grant a renewal of the personal protection, in terms of the resolution at the meeting of creditors.

"By the interlocutor of 26th August 1856 the Sheriff-substitute found, that as no specific objections were stated at the meeting to the votes of the creditors who supported the resolution, it was incompetent, under an appeal against the resolution, to advance any such objections, and therefore he granted the protection as craved. There is reason to believe that this interlocutor was intended to dispose both of the appeal at Murray's instance, and of the petition for renewal of the protection. But in order to obviate any difficulty in point of form, the parties consented that both applications should be conjoined, and disposed of by one judgment in this Court.

"The Lord Ordinary is of opinion, that it is competent, under an appeal against a resolution of the creditors, to object that it has not been carried by a legal majority in number and value of the creditors present and entitled to vote, although no special objections to the votes have been stated at the meeting, especially where the minutes bear, as they do here, that the dissentient creditor protested against the validity of the votes tendered in favour of the resolutions.

"By the 58th section of the Bankrupt Act of 1839, which regulates this matter, the majority in number and value of the creditors present at the meeting, may resolve that the personal protection of the bankrupt ought to be renewed for such time as they may think fit, and in such case the trustee shall apply to the Sheriff, who shall renew the protection.' According to

the construction put upon this clause, it is imperative on the Sheriff to grant personal protection to a bankrupt, when the application is duly made, and no objection is taken to the legality or regularity of the votes of the creditors who resolve to grant it. But, in the present case, James Murray, the objecting creditor, has appealed against the resolution, on the ground that it was not carried by a legal majority in number and value, or, at least, in number of the creditors present and entitled to vote; and the Lord Ordinary is humbly of opinion that the appeal is well-founded, and must be sustained.

"Some formidable objections were stated to the claims of James Donnelly, the bankrupt's brother, which greatly exceed in value the debts of all the other creditors. But, supposing his vote should be sustained to the full extent claimed, so as to give a preponderance in value in favour of the resolution, this will not be sufficient unless there is also a majority in number. Now, the only other creditors who voted for the resolution were Sellar and Robertson, and Thomas M'Alindon. But it is objected by the appellant Murray that both their votes are bad.

"As to Sellar and Robertson's claim, it appears to be founded on an account for premiums of insurance on a vessel called the 'Druid,' and incidents connected therewith, amounting to £63: 3s. To this it is objected, that no documents are produced to instruct that Sellar and Robertson are creditors for the amount claimed. Along with the affidavit they produced merely an account, which gives no information of the character in which they acted, and it might have been supposed that they had acted as brokers or agents for the bankrupt, and had paid the premiums to the underwriters on his account. But if this had been their true position, they would have required to instruct their claim by a receipt or voucher showing that they had paid the premiums. It appears, however, from an unaccepted bill now produced, that Sellar and Robertson claim payment of this account, not in their own right, as having paid the premiums, but merely as agents of the underwriters who signed the policy. But there is no assignation from the underwriters, and no authority of any kind from them to show that Sellar and Robertson are entitled to sue, or to claim to be ranked in the sequestration for this debt. For this reason, it is thought this claim must be rejected as not duly vouched.

"With regard to M'Alindon's claim, the Lord Ordinary thinks it must be rejected, because, apart from other objections, the signature of the claimant to the affidavit, and the signature to the mandate, are both palpably vitiated and erased. These signatures are different in the spelling, and different in appearance from the signature on the back of the bill; and it is thought that documents which have been so tampered with can make no faith in judgment.

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If both these votes are bad, it follows that the resolution for renewal of the personal protection was not carried by a majority in number of the creditors present and entitled to vote at the meeting."

The bankrupt reclaimed.

Objected for Mr Murray, on the presentation of the note, that the bankrupt has no title to insist. The right to personal protection is entirely statutory, and its decision is placed in the hands of the creditors only. The Statute 2 and 3 Vict., c. 41, sect. 58, gives no authority or title to the bankrupt to appear in the matter.

Lord Cowan.-The bankrupt is the only party interested in the resolution of the creditors; and I think he was entitled to appear before the Lord Ordinary in the appeal at Murray's instance: But if so, he can come here to reclaim against a bad decision.

The other Judges concurred in repelling the objection. Upon the merits it was argued for the bankrupt, that the vote given for Messrs Sellar and Robertson must be sustained. These parties were brokers, and claimed for the premium paid by them on account of the bankrupt for a marine insurance policy. According to the usage of trade, parties in the position of brokers are viewed as middlemen, and it is held unnecessary for them to produce vouchers to instruct payment.-Arnold on Insurances, p. 109; Power . Butcher, Barn. and Cress.,