Having heard parties' procurators, under their mutual appeal, upon the Interlocutor appealed against, and whole process, Finds that the preference claimed by the pursuers in the summons for the principal sum of £600 contained in their bond, and interest thereon, has been abandoned so far as the principal sum in the deed is concerned, but they still claim a preference, under the 118th section of the Bankrupt Act, to the extent of the current term's interest, there being no arrears of interest due: Finds it pleaded by the defender, the trustee on the estate, in opposition to the claim that it obtains only when the heritable creditor has raised his summons of poinding the ground before the act and warrant of confirmation in favour of the trustee, which has not taken place here, the act and warrant in favour of the trustee being prior to the raising of the present summons of poinding the ground-the act and warrant being dated 29th November, 1861, and the summons being dated 7th February, 1862: Finds that, by the 118th section of the Bankrupt Act, it is provided-"That no creditor who holds a security over the heritable estate, preferable to the right of the trustee, shall be prevented from executing a poinding of the ground after the sequestration, but such poinding shall, in competition with the trustee, be available only for the interest on the debt for the current half-yearly term, and for the arrears of interest for one year immediately before the commencement of such term:" Finds that it has been decided by the Court of Session on this clause, that the heritable creditor is in time to secure the preference conferred upon him by the Act, if he raises his action of poinding the ground after the date of the first deliverance in the sequestration, but before the date of the act and warrant in favour of the trustee-Barston v. Mowbray, 11th March, 1856: Finds that there are no words in the statute, or in the statutory act and warrant in favour of the trustee, which limits the term within which the heritable creditor's right of preference is to be made effectual to the interval between the date of the first deliverance and that of the trustee's act and warrant: Finds that, in these circumstances, as the legislature has not seen cause to limit the period within which the heritable creditor is to bring his action of poinding the ground to secure the preferences provided by the Act, the Court is not entitled, at its own hand, to impose such a limitation; but the matter must be regulated by the common law on the subject of mora; and finds that there has not been such a delay in the present case as to cut off the pursuer's preference: Finds further, that, under the words of the statute, the heritable creditor is entitled, under an action of poinding the ground executed "after the sequestration," to poind the effects that may be on the ground, if still there, to secure the preference to the extent provided by the Act, at any time, as long as the goods are on the premises; but that, if he is supine, and neglects to adopt that course, and the trustee, in the interim, under his act and warrant, sells off the effects and gives de. livery to the purchaser of the latter, the trustee or purchaser will be preferred, seeing the Act contains no interdict against the trustee selling; and after he has got his act and warrant, he may sell and deliver to any one until a poinding of the ground has been executed, which will interpel him: therefore, as well as for the reasons stated by the Sheriff-Substitute, adheres to the Interlocutor, both upon the merits and on the question of expenses, and dismisses both appeals. Act. DAVID HANNAY. 22D JULY, 1862. Alt. J. M. TAYLOR. SHERIFF COURT, PERTH. (DR BARCLAY.) JOHN DOCTER'S CESSIO. Bankrupt Cessio.-Circumstances in which decree of Cessio granted, but extract superseded for six calender months. At the diet for examination of the petitioner, the agents for the opposing creditors objected as preliminary 1. That the "designations and places of abode of the creditors" are not set forth in the petition as required by section third of the statute. 2. That the certificate of notices does not set forth that they were addressed as in the petition, and could not be so. 3. That no books or papers are lodged as required by the statute, and no reason given why they are not. Answered 1. The Act of Sederunt (first section) requires the third section to be complied with "as near as circumstances permit," and the schedule only requires the names to be given. There are only some of the creditors who are without designations in the petition. The certificate gives the designations of all the creditors, and also in the state of affairs. 2. The certificate does set forth the designations. 3. There are no books or papers within the insolvent's power, as all these are in the hands of the trustee, under the sequestration. The Sheriff pronounced the following Interlocutor, repelling the first, second, and third pleas, in so far as pleas in bar of the action: The Sheriff, in respect of the 23d section of the Act of Sederunt, and the completeness of the certificate of intimation, and on the insolvent now amending his petition, making the same conform to the certificate in all points, repels the first and second pleas in bar of the proceeding. With reference to the third plea, in respect that it appears that the books and papers are in the hands of the insolvent's trustee, under the sequestration of his estate, and so without his power, repels that plea as one in bar of the action, and the trustee being present, agrees to put in the clerk's hands all books and papers which may be required, which allows the objecting creditors to see. The opposing creditors objectedFirst. That all parties are not called, namely, the Scottish Union Insurance Co. Second. That the insolvent is designed in the petition as auctioneer, under which vocation no debts have arisen, whereas he now appears to have been carrying on the business of potato merchant, wood merchant, tile and brick merchant, coach proprietor, banker, manure agent, and lawyer. Third. That the state of affairs is incomplete, as it gives no statement of losses, so that the creditors cannot discover how his bankruptcy has occurred. Fourth. The insolvent has carried on an extensive and varied business, and, though only a few years engaged therein, has kept no books or accounts of business and cash transactions, and gives no satisfactory account of his affairs nor materials for making up a statement thereof, so as to account for the large deficiency, amount- tion are thus concealed or withheld, no length of imprisonment ing to nearly £500 per annum. Fifth. The insolvent has carried on a deceptive system towards his creditors and the public in carrying on such an extensive business without capital, and in a state of insolvency. Sixth. The insolvent has been guilty of reckless trading by entering into so many trades and speculations confessedly without knowledge and experience, and obviously with the view of getting credit in one quarter to be employed in another. Lastly. He is guilty of a species of fraud, if not actual fraud, by appropriating money belonging to others. Answered First. The objection is now too late. entitles the debtor to cessio and consequent liberation. But wherever there exists misconduct on the part of the insolvent, the law provides, that although cessio may be granted, yet its benefits should be delayed, either indefinitely, or suspended for some precise period. Cessio is never refused absolutely, but only in hoc statu, leaving the insolvent to renew his applithe primary object of imprisonment has no longer place, and cation from time to time, and the court grants the cessio where when the length of imprisonment appears, so far, to have expiated the offence. The Substitute is of opinion, and has always acted thereon, that in the latter case it is decidedly the better way, both for debtor and creditor, that the term of imprisonment be at once fixed. The debtor is humanely removed from the pain, more bitter than imprisonment, of "hope deferred," and the creditors holding him in durance know the exact limit both of their power and their cost. The only doubt entertained under this head by the Sheriff-Substitute is, whether public policy requires that such cases be dealt with by criminal law rather than devolving the prosecution on private culprit to pass with impunity, and the minor offender to be individuals, which may, and often does, allow the greater punished with more or less severity according to the temper or caprice of some one or more of his creditors. In the present case, the very absence of all books is of itself a formidable objection. In a trifling business, conducted chiefly by dealings in cash, the Court have humanely relaxed the rule. But in Under his examination the insolvent has given a full a business of the extent of this insolvent, who passed from £400 and particular account of his transactions since he com- to £2,000 annually through his hands, such omission of all menced business, so far as inquired into and accounted they ought at least to have the melancholy satisfaction of record is unpardonable. If creditors cannot get their money, for his losses, which have been the cause of his bank-learning how and where it has disappeared. If their riches ruptcy. All his books and papers, in consequence of the order of Court, have been lodged with the clerk, and have not been once referred to in the course of examination. These will furnish sufficient information with regard to the details of his business. The charges of fraud and deception are denied. Second. The insolvent is designed in terms of the diligence on which he is incarcerated, and the objection is too late. Third. The objection is too late, and it is not necessary that a state accounting for losses should be given. To the remaining objections, answered have taken wings, they may at least be told whether they have flown and where nestled, so that they may clip the wings best safeguard for caution in trade. of future speculation. The very keeping of such records is the The Substitute has, during his long experience, often met with the instructive fact in cases of bankruptcy, that cash books are kept with most praiseworthy regularity so long as the balance is on the sunny side, but are thrown aside as soon as a shade comes over the prosParties' procurators having been heard on these objec-pect the very time when such an index becomes the more tions and answers, the Sheriff-Substitute pronounced the necessary. This is very much like a voyager who made accufollowing Interlocutor: rate daily observations when within sight of a well-known coast, but trusted to chance whenever he passed into unknown seas. It may also be argued that it is only by the regular Having heard parties' procurators, and made avizandum keeping of such books that creditors can be satisfied that a full with the whole cause, repels the first objection, being now removed by the calling of the insurance company. Repels the surrender of the debtor's estate has been made, or trace where second objection, in respect that the insolvent is designed as its scattered fragments may be found. In short, it is sound in the diligence on which he is held prisoner, and that his law and good sense, that no person should embark in trade identity is beyond all doubt. On the merits-Finds no facts does not actually and regularly keep them. He is not entitled who is incapable of keeping proper mercantile books, and who and circumstances proved sufficient to infer that the insolvent is in possession of funds, or that he is refusing to give informa-lected all the co-relative obligations of trade, by keeping a to seek the privilege of an unfortunate trader who has negtion which might lead to the discovery and recovery of funds, record of his daily transactions. This omission in one who and therefore that there exists no valid objection against the held the responsible and honourable position of agent for two insolvent receiving the benefit of cessio; and to that effect repels all the remaining objections, reserving their effect other principal banks, is beyond all excuse. The solicitor for the wise, as postponing the period of his liberation from prison if insolvent desires it to be noted that his client did keep certain the incarcerator so please: Finds that the facts disclosed on jotting books of transactions, which has enabled the trustee to the face of the depositions of the insolvent establish that his evidence. But granting the fact to be so, it does not remove make up a full statement of affairs. Of this there is no misfortunes have not arisen from innocent causes, but from reckless trading without adequate capital, and without keeping mercantile dealing. There is the reckless dealing to so great the necessity of keeping the regular set of books required in any record whereby his course of trading might be traced: Therefore, on the whole, finds the insolvent entitled to the an extent, and in so many varied and incongruous branches benefit of cessio, and decerns accordingly, but supersedes exof business, without anything save the shadow of capital. tract thereof, and of liberation, for six calendar months, reck- This ground of objection, however, the Substitute does not oning from the date of the incarceration of the insolvent; and such matters, he is inclined to the opinion, that those who much entertain, seeing that, perhaps from his ignorance in in respect that he has already taken the statutory oath under the sequestration statutes, and that a trustee is acting under give such persons unlimited credit are not entirely free from the same, finds it unnecessary in this cessio that he take the blame, and are not entitled to cast the first stone. But this similar oath, or that another appointment of trustee be made. ground of objection adds much additional strength to the want Finds no expenses due, and decerns. of regular mercantile records. There is the admitted fact as creditors, whereby he was charged in his bank account with a to the bank transaction with Mr Bennet, one of the opposing large sum which he did not actually receive. If this did not amount to actual fraud, assuredly it approached the nearest possible to such. It cannot be explained, and of itself justifies the extension of the imprisonment. It was done in the charand therefore renders the offence all the more aggravated. acter of bank agent, who have much in their power in this way, There is also the very strange dealing with one of the banks, who, although not opposing the transaction, is yet quite open NOTE.-There is an existing sequestration and an active trustee who reports that the insolvent "has made a full and fair surrender of his means and estate." There is nothing brought out in the insolvent's lengthened examination to throw doubt on this statement by the trustee; therefore, the primary, if not the sole object of civil imprisonment has no longer place. That object is to compel a debtor to disgorge his creditors' funds, or to give information which may enable them to obtain possession of assets. Where funds or informa to any creditor to take it up. When the insolvent overdrew his bank account, instead of honestly showing the fact, he granted so many I O U's by himself as an individual to him self as bank-agent, and reported these worthless slips as so much cash. This was a system much more ingenious than ingenuous, and is deserving of severe censure. There are other matters of more than doubtful propriety, but it is painful to dwell on them, the more especially that they of necessity introduce other persons who may be without blame. But more than enough has been stated to warrant the decision above given. The Substitute has found himself bound by proper regard to a long series of decisions, whilst granting the cessio, to suspend its benefit for a limited time; and he feels assured, if his decision be open to objection, it is greatly on the side of leniency. But he cannot omit to notice, that it was urged on the Court that the insolvent has a wife and four children, and is himself in impaired health. These circumstances can have no effect on the judge, who must apply the stern rules of law; but perhaps they may receive consideration from the opposing creditors, seeing that they are certainly not likely to enrich themselves by a lengthened detention of their debtor. Agent for Graham & Co.-ROBERT MARTIN. 22D JULY, 1862. SHERIFF COURT, DUMBARTON. (MR SHERIFF W. C. STEELE.) PROCURATOR-Fiscal of Court v. James Gardiner, Coal Master at Kirkintilloch. Coal Mines Act, 23 and 24 Vict., cap. 150-Contravention-Personal Injury-Penalty.-Penalty imposed in consequence of contravention of the Coal Mines Act, whereby a person was killed. THE Procurator-Fiscal presented a petition against the defender, under the statute 23 and 24 Vict., cap. 150, entitled "An Act for the Regulation and Inspection of Mines," dated 28th August, 1860, by which it is, inter alia, provided, that in all coal pits and ironstone mines "the fly-wheel of every engine employed shall be securely fenced." The application set forth that the defender, as tenant of Solsgirth coal pit, in the parish of Kirkintilloch, had neglected to fence the fly-wheel of the pumping or other engine employed at that pit, and in consequence Thomas Clark, the engineman, had, on the 16th March, 1862, been so seriously injured by coming into contact with the fly-wheel, that he had died in the course of ten days thereafter. The petition concluded for a penalty not exceeding £20, in terms of the statute. The charge was admitted, and after hearing parties' procurators, the Sheriff-Substitute pronounced the following judgment, which has been acquiesced in: The Sheriff-Substitute having heard parties' procurators, viva voce, and resumed consideration of the process, Finds it admitted by the defender that he is the lessee and occupier of the coal pit referred to in the record; that the fly-wheel of the engine employed at said coal pit was not fenced, and that in consequence thereof Thomas Clark, the engineman of the pit, came into contact with said fly-wheel, and thus received bodily injuries of which he subsequently died: Finds, in these circumstances, that the defender has contravened the statute founded on in the petition by neglecting to have the said fly-wheel securely fenced, and that he has thus incurred a penalty not exceeding twenty pounds sterling in terms of the Act: Finds that the circumstance alleged by the defender, assuming it to be established, that Clark was in a state of intoxication at the time the accident occurred, is not relevant as a defence, seeing that the defender neglected to use the precautions which by the statute he was bound to use, and which, so far as appears, would have had the effect of preventing the accident: Therefore decerns, and adjudges the defender to pay to the pursuer, to be accounted for by him to the Queen's and Lord Treasurer's Remembrancer of Exchequer in Scotland, the sum of ten pounds sterling, and to that sum modifies the penalty incurred by the defender under the statute, and decerns. Act. R. G. MITCHELL, Procurator-Fiscal. Alt. JOHN Denney. 31ST JULY, 1862. SHERIFF COURT, GLASGOW. (MR SHERIFF STRATHERN.) M.P., Rev. JOHN WILLIAMS and Others, Nominal Raisers, Pursuers, v. W. L. M'PHUN (Douglas's Trustee), Real Raiser, and ROBERT M'KIRDY. Bill-Draft or Order-Stamps.-Held, that a document in these terms-"Please pay to A B the sum of £230 sterling, to account of the carpenter and joiner work of the Baptist Chapel presently in course of erection in North Frederick Street, this sum being payable, per Mr Gow's plans and specifications, when the Chapel roof is on and ready to receive the slates," to which a penny stamp was affixed, was not a bill within the meaning of the Stamp Acts, and so null for want of 3 stamp, the period of payment being future and contingent, but that the document was admissible as evidence valeat quantum. In this action of multiplepoinding the nominal raisers averred that the bankrupt Douglas, a carpenter and joiner, had made offer to execute the carpenter and ironmongery work of a chapel in North Frederick Street, Glasgow, belonging to them, for the sum of £639 13s, which had been accepted. In the course of the work Douglas's affairs had become involved; he was unable to proceed, and his estates were subsequently sequestrated. The nominal raisers had thereupon made application to the Sheriff for warrant to have the work done by the bankrupt measured, which application had been intimated to the then judicial factor. Meantime M'Phun had been elected trustee on Douglas's sequestrated Estate, and, at the request of the creditors, the nomiual raisers had delayed proceeding with their application. Subsequently they had entered into an arrangement with the trustee and the creditors for the measurement and pricing of the work executed, and this was done accordingly; and the amount brought out was £119 2s 10d, deducting from which £60 paid to account, and £20 in name of loss and damage sustained and expenses incurred through the contractor's delay and stoppage and breach of contract, left a balance of £39 2s 10d, the amount of the fund in medio condescended on in the summons. claimant M'Kirdy objected to the amount of the fund in medio as condescended on by the nominal raisers, and, on the contrary, averred that in a question with him the proper amount of the fund in medio was the whole contract price, amounting to £639 13s. He also objected to the £20 in name of damages claimed by the nominal The raisers. M'Kirdy stated that when Douglas had accepted the contract for the chapel, he had applied to him for wood, which he had refused until he had given an order on the nominal raisers for £230, which he did, and which was intimated to them, and on the faith of this order he had supplied Douglas; and in homologation of this intimated order, the nominal raisers had paid him £49 to account. He had also agreed to give his guarantee for certain cast iron pillars, at the request of the nominal raisers. On The record was closed on 2d December, 1859. 10th February, 1860, an Interlocutor was pronounced, granting diligence to recover documents with the view of disposing of M'Kirdy's objections to the extent of the fund in medio, and for fixing its true amount. The diligence was executed accordingly, and productions made, thereafter the Sheriff-Substitute pronounced the following Interlocutor: Having resumed consideration of this process, with the documents recovered, under the diligence granted to the parties, and made avizandum, Finds that the nominal raiser M'Phun, has stated the fund in medio at £39 2s 10d, whereas the claimant M'Kirdy maintains that the amount should be £639 13s, being the contract price of the whole carpenter, joiner, and ironmongery work which the common debtor, Douglas, undertook to execute for the nominal raisers, the Committee of the North Frederick Street Baptist Chapel: Finds that the nominal raisers, although cited to this action, have not entered appearance, and they therefore neither admit nor dispute the amount of the fund stated to be in their hands; and, in these circumstances, they are held as confessed that they are custodiers of whatever sum may be ascertained in this process to be the fund in medio, irrespective of the amount at which the real raiser had chosen to state it in the summons: Finds that, in the month of June, 1858, the common debtor made offer to execute, for the nominal raisers, the carpenter, joiner, and ironmongery work of their chapel for £639 13s, which offer was accepted, and he proceeded with and continued the execution of the work until the month of September following, when his affairs having become embarassed, he was unable to go on, and stopped. On 29th October his estates were sequestrated, and the real raiser M'Phun was elected trustee in the sequestration: Finds that, by arrangement with the nominal raisers, Mr M'Phun, for behoof of the bankrupt's estate, took up the common debtor's contract and completed it: Finds that, when the common debtor stopped the contract in September, 1858, the extent of the work done by him, as ascertained by Mr Howat's measurement (the accuracy of which is not disputed,) amounted to £119 28 10d, but to account of which had been paid, on 5th October, £60, leaving a balance of £59 28 10d unpaid: Finds it stated by the real raiser M'Phun, that, under the arrangement between the nominal raisers and him, it was agreed that they shall be allowed a sum of £20 to indemnify them against any loss and damage which they may have suffered in and through the common debtor's breach of contract, which, being deducted, the amount in their hands came to be only £39 2s 10d, the sum stated as the fund in medio in the summons and condescendence: Finds that, as in a question with the claimant M'Kirdy, who was no party to this alleged arrangement, and as the nominal raisers have made no appearance to claim retention of any part of said balance as damages, either in respect of the arrangement or otherwise, the real raiser M Phun is not entitled to award them £20, or any sum whatever, and to deduct it, and to call what remains the fund in medio: and that therefore, in these circumstances, the fund amounts to the unpaid sum of £59 28 10d, instead of that stated in the summons and condescendence: Finds that in no view can said fund be held to be the contract price of said work, as contended for by the claimant M'Kirdy, because the common debtor failed in its execution before the contract was completed even to the extent of one-third: and, in the competition, Finds that the real raiser M'Phun claims the entire fund as vested in him qua trustee under the common debtor's sequestration; while the claimant M'Kirdy seeks to be preferred in virtue of the order, No. 16, in his favour, dated 14th August, 1858, drawn by the common debtor on delivered to them; and that the order, which had affixed to it the nominal raisers, and which the claimant allows he duly a penny draft stamp, effectually transferred the common debtor's money into their hands to the extent of the sum contained in it: Finds it instructed by the writings in process (No. 10) that at the time the common debtor granted said order, he was owing the claimant M'Kirdy £120, and that thereafter, and on the faith of it, the claimant supplied him with timber to the amount of £230, at least part of which timber was used in the erection of the said chapel: Finds that the said order is conceived in these terms: "Glasgow, 14th August, 1858. "Gentlemen,-Please pay to Mr Robert M'Kirdy, woodmerchant, 14 Macfarlane Street, the sum of £230 sterling, to account of the carpenter and joiner work of the Baptist Chapel presently in course of erection in North Frederick Street, this sum being payable, per Mr A. M. Gow's plans and specifications, when the chapel roof is on and ready to receive the slates. "(Signed) JOHN DOUGLAS." "To the Committee of the Baptist Chapel, North Frederick Street." Finds that the claimant M'Phun challenges the validity of this order (1) Because it was not intimated to the drawees, the nominal raisers; (2) Because it is null under the Stamp Laws; and (3) Because it was passed from: Finds it averred that the order was delivered to the nominal raisers immediately after being granted, and that it was retained by them, as the best mode of intimation which could be given, and it has been lately recovered in this action from Mr Stewart, the procurator for the claimant M'Phun, and partner of Mr Hodge, the agent of the nominal raisers: Finds that the claimant M'Kirdy denies that he passed from said order, and it is not to be presumed that he did so, and there are no statements made on record showing how or when this happened: Therefore repels the first and third objection to the order: but Finds that the writing is a draft or bill within the meaning of the Stamp Acts, and not being payable on demand, has affixed to it an improper stamp, and consequently it is ineffectual to transfer to the claimant M'Kirdy the fund in medio, or any part thereof: Finds the nominal raisers liable in once and single payment of the said fund, being £59 28 10d; and on the same being consigned by them in the hands of the Clerk of Court, or on payment to the claimant preferred thereto under the decree; in either event exoners and discharges them as concluded in the summons; and in the competition ranks and prefers the claimant M'Phun as trustee in the sequestrated estates of the common debtor on the whole of said fund, and repels the claim of the party M'Kirdy: Finds M'Kirdy liable to M'Phun in expenses, including those incurred by the latter as real raiser of this action; allows an account of said expenses to be lodged, and remits the same to the auditor to tax and report, and decerns. NOTE.-There are two views which may be taken of the claimant M'Kirdy's order; either to regard it as a mandate in his favour to receive payment of the contents from the drawees, or as a bill. If it be a mandate it requires na stamp; but then a writ of that character does not operate as a transference of the sum from the common debtor to the claimant who was to receive it. Accordingly, except by reference to the case M'Intosh v. Brierly, 19th February, 1846, House of Lords, 18 Jur., 380, it was not seriously contended by M'Kirdy that the writing was a mandate. In the case cited, an unstamped order on another to pay a creditor of the granters came to be subject of discussion; but the specialty there was, that the party on whom the order was given did not, at its date, hold any money belonging to the granters. The granters had drawn a bill on debtors of their own in favour of this party, and, by the order, they instructed him, on receiving the proceeds, to pay their said creditors. The proceeds were received by him; but before being paid over, as directed, the granters became bankrupt, and then he refused to pay the creditor, alleging that the granters' sequestration carried the proceeds of the bill as part of the general assets; but the Lords held that he received the proceeds of the bill on behalf of the particular creditor referred to, and to whom he was ordered and bound to make payment, just as if the granters had themselves received and paid the money. The validity of the order was not therefore the point of the case; but whether the party on whom it was given, and who promised to obey it, did not act as agent of the creditor in receiving the proceeds of the bill, and out of which he undertook to pay that creditor's debt. The Court held that he was. Is the order now in question a draft or bill, as the claimant is bound to maintain if he ascribes to it the quality of transfering to him the sum which it contains? That it is a bill or draft within the meaning of the Stamp Act, 17 and 18 Vict., c. 83, the Sheriff-Substitute thinks clear. It is conceived in similar terms to that forming the subject in dispute in the case of Isles, 23d June, 1836, 14 Shaw, 996. Moreover, it contains a request to pay a sum certain to a payee named, and to whom it was delivered; it is dated, and there is an occurrence mentioned when the sum becomes payable; these compose the essentials of a bill or draft. Being a bill or draft, it was necessary, for its validity, that it should be stamped; and one has been affixed to it, but it is a penny stamp, which is inappropriate. That description of stamp is, by the statute referred to, limited exclusively to an "inland bill of exchange, draft or order, for the payment of any sum of money to the bearer, or to order, on demand," and the stamp itself which has been used bears this limitation on its face. An order of that kind entitles the payee to exact payment whenever he pleases, but the order in question is made payable "when the chapel roof is on, and ready to receive the slates," implying an interval of time, and therefore bringing it within that class of bills, drafts, or orders payable "at any time otherwise than on demand," and requiring an ad valorem stamp of 38. In holding the order to be a draft or bill, the only doubt which the Sheriff-Substitute has experienced, relates to the term of payment. The payment is made contingent on the roofing of the chapel; so that, if never roofed, the order would never have been payable; and it is fit to be observed that the granter of the order did not roof the chapel. That was done by his trustee since sequestration. Now, it is quite fixed that the privileges of a bill are refused where the term of payment is not absolute; and, at all events, Thomson on Bills, 2d Edit., p. 9; or, as another writer expresses it: "The introduction of any words which make the payment contingent will render the bill invalid" (Menzies on Conveyancing, p. 329). But as it has been ruled that a document which makes the payment certain, though the date be contingent on the occurence of an event about to happen, as where the acceptor shall receive a sum of prize money due to him, Evans v. Underwood, 1 Wits., 262; or when the payee, an infant, comes of age, Goss v. Nelson, 1 Burr., 226; or on the payee's marriage, Mungal v. Calder, 11th January, 1750, Mor., 5771. The Sheriff-Substitute thinks the illustrations support the character which he attaches to the claimant's order. Even, however, if it were otherwise, and that the contingency in payment removed the order out of the category of negotiable instruments, that circumstance would not place it in any other: taken out of that category, the order would be utterly useless to the claimant. (Thomson on Bills, p. 12). The fund in medio, therefore, belongs to the common debtor's estate, on the assets of which the claimant M'Kirdy can only have a ranking with other creditors. This Interlocutor was appealed by M'Kirdy, and, on a hearing, Sir Archibald Alison pronounced the following judgment: Having heard parties' procurators under the appeal for the claimant M'Kirdy upon the Interlocutor appealed from, and whole process, Finds it admitted by the parties that the fund in medio amounts to £59 2s 10d, the sum stated in the Sheriff-Substitute's Interlocutor: Finds that the draft or bill for £230 founded on by the claimant M'Kirdy is not to be regarded as a bill under the stamp laws, in respect the period of payment is not fixed, but is future and contingent, which might or might not come to pass, seeing it was only when the roof is on and ready to receive the slates, which, in point of fact, it is said was never done in the lifetime of the payee: Finds, in these circumstances, that the draft or order is not within the Stamp Act, and null for want of the 3s stamp: Finds, therefore, that the said draft or order may be looked to by the Court as a voucher or writing forming part of a pecuniary description, though a penny stamp only is affixed to it: Finds, separatim, that as the said draft was in payment of wood to be furnished, not which had been furnished, which condition might or might not be purified, it has another ground of uncertainty in it which also takes it out of the statute: Finds that the said order cannot be considered as a bill, in the sense of the Act regarding the stamp laws, seeing it was not an order at the time it was granted upon a party indebted to the party signing the order, but a contingent order to hand over certain funds when coming into the hands of the party on whom the order was given in consequence of that very order: Therefore, Finds it is admissible as evidence, valeat quantum, and alters the Interlocutor complained of accordingly, and allows the claimant M'Kirdy a proof of his averments, and to the claimant M'Phun a conjunct probation under reservation of the whole pleas of parties other than the one decided by this Interlocutor, both as to the admissibility of evidence under the allowance of proof, and on the import and bearing of the proof when led, and remits to the Sheriff-Substitute to fix a diet for taking the proof allowed, and do further in the cause as to him may seem just, and grants diligence against witnesses and havers at the instance of both parties. Proof having been taken, and parties heard, the Sheriff-Substitute pronounced the following Interlocu tor: and whole cause, for the reasons expressed in the following Having heard parties' procurators on the concluded proof Note, ranks and prefers the claimant M'Phun to the fund in medio, and reverts to and repeats the Interlocutor of 24th April, 1860: Finds the claimant M'Kirdy liable in additional expenses, and, de novo, allows an account of the whole expenses incurred by the claimant M'Phun to be lodged, and remits the same to the auditor to tax and report, and decerns. NOTE. The Sheriff, by his Interlocutor of 4th September last, held that the writing founded on by the claimant M'Kirdy, was not a bill or note requiring an ad valorem stamp for its validity, and that the penny stamp affixed to it rendered the writing effectual. The Sheriff-Substitute's Interlocutor of 29th April preceding was therefore altered and a proof allowed. But while the Sheriff found that the writing was not a bill or note, and held that it was admissible as evidence, valeat quantum, yet his Lordship did not define its character, nor to what legal effect the writing was admissible, neither at the debate would the claimant M'Kirdy venture to describe the nature of the writing nor its legal tendency. The Sheriff-Substitute was of opinion, on careful consideration of the Stamp Acts and of the decisions interpreting their provisions, that the writing, from its terms and nature, did require a bill or note stamp; and with every respect for the opposite view of the Sheriff, he retains that opinion. Had the writing been a bill, and stamped as such, then there cannot be a doubt that, on due presentation to the nominal raisers, the fund in their hands belonging to the common debtor Douglas, would have been effectually transferred to Mr M'Kirdy, in whose favour the writing was conceived, and for that proposition there is authority. (Bell's Principles, sections 311, 315, and 1460). There would have been, besides, prudence in exacting and using a document which had that effect; but then it has been found in this case, and the Sheriff-Substitute feels bound by the finding, that the writing is not of the nature of a bill; some other description, therefore, must be discovered and applied to it as well as its bearing in point of law. It has been called an order, and the claimant M'Kirdy pleads that being intimated and delivered to, and held by the "nominal raisers, it operated as a completed transfer of the contract price to the claimant, debarring them from accounting to any other not in his right." But the SheriffSubstitute is unacquainted with any authority for holding that a mere unimplemented money order has any such effect; an order, on the other hand, while it may be a good ground of action against the person granting it, has never been held operative as an assignation of a fund in the hands of a third party. In any view, however, the claimant himself, in his plea, notices intimation as necessary to give the writing the virtue which he attaches to it; if that be necessary, the claimant has been unfortunate in its completion, because he did not inti |