railway, it should be shut in on both sides the rails; and 2d. To appoint a gatekeeper to have charge of the gate. In defence-The company (1st) did not admit that the petitioners were householders; (2d) It was denied that the road was public; (3d) It was maintained that a gate to shut out the rail from the fields was all which could be demanded, and which already existed; and, lastly, that the statute did not authorise the Sheriff to order the appointment of a gatekeeper, and that the Sheriff had no power at common law to enforce such. After a remit to a Surveyor and proofs, the following judgments were pronounced:

Having heard parties' procurators and made avizandum with the cause, Finds, first, That it is now admitted that the pursuers are two householders within the parish or district where the crossing in question is situated; second, Finds that it is proved that the defenders' railway at said place crosses a public carriage road or highway; third, That the defenders have failed, in compliance with the 40th and 54th sections of the Railway Clauses Act, to erect sufficient gates across such road on each side of the railway, of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway, nor have the defenders employed persons to open and shut such gates: Therefore, decerns against the defenders in terms of the prayer of the petition; the said clauses and this decree to be implimented within one month from the date of this judgment becoming final, reserving the question of expenses.

NOTE. That the road which crosses the defenders' line of rail is a public highway or carriage road is beyond all controversy. It appears as a road in the accurate and ancient county map of Stobbie. It is so admitted in the defenders' deposited plan and book of reference, and in the proceedings in the deed of submission to settle the compensation for ground taken. The decreet arbitral dividing the Muir of Blairgowrie does not identify this road as a peat or private road. But apart from all written evidence, and the absence of all averment of private interest in the road, the proof of use is beyond cavil. The defenders' solicitor argued that there was only one witness whose evidence went back the full prescriptive period of forty years, and therefore the proof was not sufficient. But the issue is not the property in the solum of the road, but its existence. The defenders do not claim the solum of the road, and have no title to call for a prescriptive title. Sufficient that it was a public highway and carriage road at the time the defenders interfered with it. At all events, and in any view, seven years' actual use would be sufficient to preserve the road intact, and to give the public its benefit until regularly evicted by declarator at the instance of some persons having title to dispute its legal existence.

be

The chief point raised by the defenders, and argued with great ingenuity, is that on a critical reading of the 40th clause they have complied with the statute. They maintained that all that was necessary was that the gates be sufficient to shut in the adjacent fields on each side, and that there exists no provision for their wings being stretched across the railway. If so, it is quite impossible to discover the distinction in the statute between a level crossing connecting fields or private roads, where the use of such crossings are of rare occurrence, and that of a public carriage road where the passages may expected to be more or less frequent. There would be no pos sibility, without such extension of the gates across the railway, of protecting the railway from the inroad of cattle and horses in crossing the line of rails to the right or left, and the use of a gatekeeper would in no case be essential, because the gates opening outward from the railway might easily be left to the care of the person in charge of the animals passing. The minute criticism of the clause resolves it into absolute nonsense. It confounds "shut" and "open," "railway" and "the fields," and makes the cattle alike to pass through with gates shut as well as open. It is perfectly obvious in a fair reading of the clause (rather on the canon of common sense, however, than of grammatical construction), that the meaning of the clause is to require gates which, when there is no call for a passage over the railway, encloses the fields on each side, but

during the passage across the railway, for the time opens the road and shuts and fences the railway.

As to the remedy, there is no doubt that whilst the 40th section expressly provides for a gatekeeper, the 54th section does not expressly mention that personage. But it is clear that the latter section has reference to a number of preceding sections, and repeats them under some general and leading term. A gate implies a gatekeeper, just as much as a mill would be very profitless without a miller, or, still more applicable, a tollgate would be of no service to the revenue of the road without a tollkeeper to levy tolls. If the defenders erect the sta tutory gate, they will find it necessary for their own interest and safety to have a gatekeeper.

A long and learned argument was raised on the power of the Court to supplement any omission as to the gatekeeper in the 54th section by its common law jurisdiction, and thus enforce the 40th section, and several decisions were quoted on each side. In the view the Sheriff-Substitute takes, this question does not arise, as he holds the whole requirements of the 40th section to be included in the executorials of the 54th. But if it were otherwise, he is of opinion that where the law has willed the end, it must be held to will the means, and that the jurisdiction of the judge ordinary is ample enough to give the remedy. Where an offence is created by statute, it does

not follow that the law cannot be vindicated because of an omission in the machinery for its enforcement.

The defenders' procurator insisted that the penalty as to gatekeepers is to be found in the 40th and not the 54th section. But it is clear that the former applies to the personal offence of the gatekeeper when appointed, and must of necessity be suspended until such functionary has been appointed. It may be that the penalty, and especially its application in the 54th section, refers more to the construction of the gate than its keeper. Nevertheless, the opening and shutting the gates is work done, and so important, that there would be little benefit, but rather detriment, by the erection of gates without guardianship; and the mulct of five pounds each day would be amply sufficient to pay a host of gatekeepers where one would be sufficient.

On an appeal, the Sheriff pronounced the following Interlocutor:

The Sheriff having heard parties' procurators on the defenders' appeal, and made avizandum with and considered the process before finally disposing of said appeal, appoints parties' procurators to attend him at the next sittings, in order to discuss the points noted below.

NOTE.-The Sheriff concurs in the first and second findings of the Interlocutor appealed from, but he is at present unable to concur in the first part of the third finding, relating to the construction of the gate as opening out from the railway, and not in and towards the line of the railway. The SheriffSubstitute has, however, signified so strong an opinion on the point that the Sheriff fears that he misapprehends the proper reading of the 40th section of the Railway Clauses Act and the arguments of the petitioners, and he therefore wishes the point to be argued. The Sheriff takes this course, more particularly as it appears to him that his judgment in this matter, under the 150th section, will be final, and not subject to correction. The Sheriff also wishes the parties to direct their attention to the question, whether the application, in so far as regards the gatekeeper, is statutory or at common law.

After a farther hearing, the Sheriff pronounced the following Interlocutor:

The Sheriff having heard parties' procurators on the defenders' appeal, in terms of the last appointment, and made avizandum with and considered the proof and whole process, affirms the first and second findings of the Interlocutor appealed from: Recals the third finding, and the decerniture following the same, and to that extent sustains said appeal: Finds that the defenders have not failed to comply with the 40th section of the Railway Clauses (Scotland) 1845 Act, in so far as regards the erection of sufficient gates, in terms of said section, across the said public road, on each side of the railway, where the said road communicates therewith: But finds that the defen ders have failed to employ a proper person or persons to open and shut said gate, and cause the same to be closed as soon as carts, horses, etc., shall have passed through the same;

Therefore decerns, in terms of the prayer of the petition, to the extent and effect of ordering, decerning, and ordaining the defenders to employ a proper person to open and shut said gates, and to keep the same continually closed against said road, on both sides of the railway, except during the time when horses, cattle, carts, or carriages passing along the same shall have to cross such railway, and decerns, quoad ultra: Refuses the prayer of the petition, reserving to the petitioners and all others interested all claims competent to them against the defenders or others for penalties, etc., and to the defenders their objections thereto, and appoints parties' procurators to be heard on the question of expenses.

NOTE.-The Sheriff sees no ground for doubting that the road in question, although not a turnpike or statute labour road, is a public road for carts, etc., and that therefore the 40th section of the Railway Clauses Act applies to it, in so far as it relates to gates at level crossings. It is not easy to understand how the defenders can raise any question as to the road being public after the manner in which they dealt with the road in their book of reference, and in the submission with Baroness Keith. The defenders do not even yet allege that the road is a private road, the property of any individual. They have settled with the Baroness Keith, through whose property the road runs upon the footing, that she had no right to the road other than belongs to all the public, and there is clear proof that the road has been used by the public.

The Sheriff cannot read the 40th section as giving any direc tions in regard to the construction of such gates across public roads, other than that they shall be good and sufficient gates across such road on each side of the railway where the same shall communicate therewith, and that the gates shall be of such dimensions, and so constructed, as when closed to fence

in the railway, and prevent cattle when passing along the road from entering upon the said railway. None of these provisions require that the gate shall open to or across the railway; the only other provision is, that the gates shall be kept carefully closed across such roads on both sides of the railway, except during the time when horses, cattle, carts, or carriages, passing along the same shall have to cross such railway. The gates during the above exceptional period must be opened, but there is no provision for the gates opening to or across the railway, instead of from the railway and to the road. There is indeed a provision that the Board of Trade, if they deem it to be for the public safety, may direct that the gates shall be kept closed across the railway, but no such direction has been given in the present case.

It is really a matter of little importance in itself whether the gates shall open to or from the railway, if the Railway Companies are obliged to appoint a gatekeeper to attend to the opening and closing of the gates.

The Sheriff concurs with the Sheriff-Substitute, that under the 40th section the defenders are bound to employ proper persons to open and shut the gates; a gatekeeper is a necessary and statutory adjunct of the gate, and it cannot be held that the provisions of the 40th section have been complied with until a gatekeeper has been employed by the Railway Company; if a gatekeeper was appointed, then he would be liable in the penalty of 40s for any default in his duty. It is thought that the Sheriff has jurisdiction to enforce the observance of the provisions of the 40th section. Even apart from the 54th section, the Sheriff appears to be entrusted especially with the duty of enforcing the penalty of the provisions of the statute generally. The 54th section gives the Sheriff right to compel the Company (on their failure to make such gates as "they are herein before required to make,") on the application of certain parties specified in this section, to order the Company to make such gates, and, as it appears to the Sheriff, to order them in terms of the 40th section to employ a gatekeeper. The 54th section, it is thought, was framed more for the purpose of pointing out who are the proper parties to raise a prosecution against the Railway Company on this ground, than for the purpose of giving the Sheriff jurisdiction, which it is thought he had apart from the 54th section. The Sheriff therefore thinks, that in pronouncing the present Interlocutor, he does so in the exercise of his statutory jurisdiction; but even if he had no exclusive statutory jurisdiction, he considers that he has jurisdiction

at common law.

The road is one which is probably not often used, and it

may appear hard to the Railway Company to appoint a gatekeeper at such a place; but if there must be a gate at the level crossing there must be a gatekeeper to take charge of it. Some arrangement may perhaps be made with the consent of the Justices, by which the road may be diverted in a convenient manner so as to avoid the expense of a gatekeeper, if such diversion of the road will be a saving to the Railway Company.

After a hearing before the Substitute, the Railway Company were found liable in expenses, subject to modification.

NOTE. It is understood that the opinion and practice of civil engineers have been hitherto in favour of the view taken by the Sheriff-Substitute, otherwise there is no distinction between ordinary fencing of the field and the exceptional fencing of the railway during passages on level crossings of public roads. Alt. GLASSFord.

Act. FINDLAY.

ALEXANDER M'GILL and ELIZA AGNES CUNNINGHAM V. FERGUSON, MILLER & Co.

Carrier-Freight.-Goods were shipped at Glasgow for Singapore. On arrival there, and no consignee appearing, an advertisement was inserted in a newspaper announcing that, unless he appeared within seven days, the cargo would be sold to pay freight and expenses. That period having expired and no one appearing, the cargo was sold through the ship's agent, without judicial authority that being alleged to be the custom at Singapore. The price obtained for the cargo having been less than the freight and expenses, the shipowners raised an action against the shippers for the deficiency.-Held by the Sheriff-Substitute, and acquiesced in-(1) That the pursuers had failed to prove that it was the custom at the port of Singapore to sell cargo without judicial authority, for freight and expenses, failing the appearance of a consignee; (2) At common law, a shipmaster has no authority, after arrival at his port of destination, to sell at his own hands any part of his cargo for which he has granted bills of lading; and (3) The master had acted ultra vires in disposing of the cargo. The defences were therefore sustained, and the defenders assoilzied.

THE action was raised for payment of £235 2s 6d, the amount of freight alleged to be due by the defenders upon thirty barrels of Roman cement, and 1400 fire clay pipes, shipped by the defenders, through their agent at Glasgow, on board the ship "Borneo" of Greenock, of which the pursuers were owners, and conveyed in safety by the pursuers to Singapore under bills of lading, dated 14th October, 1859, under deduction of £157 Os 9d, being the realised proceeds of the foresaid shipment, which, upon the consignee at Singapore not being discovered or disclosing himself, the pursuers, through their agents at Singapore, after public advertisement, and according to the practice in such cases observed at Singapore, sold for behoof of whom it might concern, and applied to the liquidation, pro tanto, of the freight

The defence was as follows:

(1) That the summons was irrelevant; (2) A denial of the averments in the summons, and of liability for the sum sued for, and explained that the goods mentioned in the summons were at and prior to the date on which they were put on board the "Borneo," and so continued till the date of the sale mentioned in the summons, the property of the consignee named in the bills of lading, viz., H. Somerset Mackenzie, residing at 36 Eastbourne Terrace, London, who, at the date of the shipments, was domiciled there, or, at all events, in Great Britain; that the ownership of the goods was, at the date of the said shipment, known to the owners of the vessel or their agents; that the said H. Somerset Mackenzie is still resident in this country; that the pursuers never intimated to the defenders that they held them liable for the freight; that if it was the intention of the shipowners to look to the defenders for payment of the said freight, they should have given, prior to selling the goods, timeous notice to that effect to the defenders, that they might protect their own interests; and that the goods were sold unlawfully and recklessly, and without judicial authority, and at prices much below what they cost in this country.

The record was then closed.

Thereafter, parties' procurators having been heard, the Sheriff-Substitute pronounced the following Inter

locutor:

Having heard parties' procurators, and reviewed the process, repels the preliminary defence that the summons is ir relevant, in so far as prejudicial, reserving it in as far as it affects the merits, and, before further answer, allows the pursuers a proof pro ut de jure of their averments regarding the circumstances under which the goods in question were sold at Singapore, and, in particular, of the averment that they were so sold "according to the practice in such cases observed at Singapore," and allows the defenders a conjunct probation; and in respect that the pursuers state that they will require a commission to Singapore for the above proof, before granting said commission, appoints the pursuers to lodge a list of interrogations within six days, and the defenders a list of cross-interrogations within six days thereafter.

The proof allowed by the preceding Interlocutor having been led, a farther proof was allowed by the following judgment:

Having heard parties' procurators, and reviewed the whole process, Finds that it is necessary, before disposing of the case on the proof formerly allowed to the pursuers, to allow the defenders a proof of their averments that at, and prior to the date on which the goods were put on board the "Borneo," they were the property of the consignee H. Somerset Mackenzie, then domiciled at Singapore, who was liable, under the bills of lading, to pay the freight; that the ownership continued unchanged up to the date of the sale at Singapore; and that said ownership was known at the date of the shipment to the owners of the vessel or their agents: Allows said defenders a proof accordingly, and to the pursuers a conjunct probation: Grants diligence against witnesses and havers, and appoints the cause to be enrolled in the diet roll of the 8th proximo to fix a diet of proof.

NOTE.-The Sheriff-Substitute has given this case a great deal of consideration, as it involves some very important questions in Mercantile Law; and he is satisfied that an exhaustive judgment cannot be pronounced in it till the above matters of fact be ascertained. Their importance, without in any way prejudging the case in other respects, will be seen from the following passage from Chilly's Law of Carriers:-"As a

goods shipped under a bill of lading, by which the goods are deliverable to the order of the consigner, or to a named consignee or assigns, he or they paying the freight, the consigner is liable to the carrier for the freight, either by virtue of an express promise to that effect, or from his legal liability as the known owner of the goods; but if the goods be shipped for and on account of the consignee, who is the owner of the goods, then the consigner would not be liable for the freight,"

After a hearing, the Sheriff-Substitute pronounced the following Interlocutor, which has been acquiesced in:

66

tion of the proof, productions, and whole process, Finds that Having heard parties' procurators, and resumed considerathe bills of lading instruct that the clay water pipes, mentioned in the summons, were shipped at Glasgow in October, 1859, Menam, by "Alexander on board the pursuers' ship Murray, agent for Ferguson, Miller & Co. of Glasgow" (the defenders): Finds that the condition of the said shipment was that the goods should be delivered at the port of Singapore, to H. Somerset Mackenzie, Bengal Civil Service, or to his for: Finds that, on the arrival of the said ship at Singapore, assigns, the said consignee paying the stipulated freight thereit was discovered that the said consignee was no longer there, and no holder of bills of lading appeared to receive the said the master of the "Menam" caused to be inserted in the Singa goods and pay the freight: Finds that, in these circumstances, pore Daily Times newspaper the advertisement, of which No. 5/12 is a copy, announcing that unless the holder of the bill of lading took delivery of the goods within seven days, they would be sold to meet freight and expenses, and no holder having appeared, they were sold accordingly by public auction, and the net proceeds of sale, as instructed by the copy ac count sales 5/1 and 5/2, were £89 10s less than the freight due the "Menam," now sue the defenders as the shippers: Finds on said goods, for which balance the pursuers, as owners of that the pursuers having averred that the master, in selling the goods, acted "according to the practice in such cases observed at Singapore," a proof of said averment was, before farther answer, allowed them by the Interlocutor of 25th January, 1861, and a commission was afterwards granted to take said proof at Singapore: Finds that four witnesses were examined by the pursuers, each of whom has deponed that he considered the course followed by the master of the Menam to be in

conformity with the practice observed at Singapore in such cases; but the said witnesses have only been able to refer to two, or, at the most, three instances of a similar character in which such course was followed prior to the date of the sale in question: Finds, therefore, that the proof is not sufficient to establish a continuous and invariable custom of trade at the port of Singapore: Finds that the pursuers have neither averred nor attempted to prove that the defenders were aware of the alleged practice of Singapore, or that they transacted, on the footing of such practice, entering into the contract in shipping the goods: Finds that the said goods were sold without any previous intimation being made to the defenders of rity or warrant, and it is no part of the pursuers' allegation an intention to sell, and without obtaining any judicial authothat the master was at the time short of funds for ships' purhas arrived at the port of destination, has no authority to sell poses: Finds that, at common law, a shipmaster, after his ship at his own hands, and without judicial sanction, any part of his cargo for which he has granted bills of lading; and although this may have been occasionally done at Singapore, no shown to exist at that port as to take it out of the general such established and acknowledged custom of trade has been rule, or to entitle a shipmaster to do there what he would not be entitled to do elsewhere, the more especially if failing delivery being taken by the consignee or his assign, the owners have recourse against the shippers: Finds that, in the present case, it was averred by the defenders that the pursuers knew before the goods were shipped that they were the property of the consignee Mackenzie, and also that they were shipped for and on his account, and the defenders therefore maintained, in point of law, that the pursuers had no recourse for arrears of freight against them, the defenders, both in respect of the manner in which the master had dealt with the goods, and of its being known to the pursuers that they (the defenders) had no interest in the goods from the moment they

3. The bills produced are all, or the greater part of them, void, in respect that they are granted at unusually and extravagantly long dates.

4. The pretended submission and award produced are erased, interlined, altered, and otherwise vitiated in essentialibus, and are not duly tested.

5. The said pretended submission and award are not duly stamped.

6. The said pretended submission and award, and all following thereon, were merely a simulate and collusive transaction betwixt the claimant and his son, the bankrupt, for the purpose of favouring the claimant and the bankrupt's family, at the expense of the creditors of the bankrupt, and the firm of James Cairns & Son, which at the date of the pretended transaction was utterly and hopelessly insolvent, or, at least, was rendered insolvent to the extent of four thousand pounds and upwards by the claimant's withdrawal on the terms stated. One of the pretended arbiters (in whose handwriting the pretended submission and award are written out) is, and was, the son-in-law of the claimant, and brother-in-law of the bankrupt; the other was a pawnbroker-not a merchant—as he is designed in the writ.

7. The dissolution of the concern of James Cairns & Son was not duly notified to the parties with whom that firm had dealings, and in consequence the appellant is still liable as a partner, and is not entitled to rank and vote on the estate in competition with, or along with the creditors of that firm who have ranked, or may rank on the estate, especially those creditors, of whom there are many, who received no notice of the dissolution.

8. By the said collusive proceedings the claimant rendered himself liable for the whole debts of the bankrupt, or at least continues so liable, no change of firm having taken place.

9. No debt is, or was, due by the bankrupt to the claimant.

10. The books of the concern show no balance due to the claimant at the date of the pretended dissolution after paying the debts of the company.

11. The list of goods, called a stock-book by the claimant, is not a book kept from day to day, is not an authentic or bona fide book, and is at the utmost a mere list of goods showing no debt due.

Thereafter, the Sheriff (Bell) having heard parties, pronounced the following Interlocutor:

Having heard parties' procurators, Finds that one of the vouchers mainly relied on by the creditor and claimant James Cairns, sen., who has voted for the competitor M'Cowan, and whose votes have been objected to, is the decree arbitral annexed to the deed of submission produced with the affidavits: Finds that the said decree arbitral is unstamped, and, as such, can bear no faith in judgment; but Finds that where a voucher requiring a stamp is unstamped at the time of the vote being given, an objection founded on such defect is obviated by procuring the said voucher duly stamped, pending a competition for the office of trustee (Morics, November 24, 1843): Therefore sists process for six days, to give the competitor M'Cowan an opportunity of procuring the said decree arbitral stamped accordingly.

NOTE.-In the case of Mories, the deed which required to be stamped as a voucher was unstamped when the competition pended both before the Sheriff and the Lord Ordinary. It was stamped, however, after the Lord Ordinary had sustained the objection to the vote on the ground of want of stamp, and the Second Division of the Court held that they were not bound to judge of the case as it stood when before the Lord Ordinary;

who states in his Note that "though the respondent suggested that a stamp might still be affixed to the instrument, he (the Lord Ordinary) did not think himself entitled to sist process in a case of this description till that remedy was attempted." But his Lordship added that his judgment was subject to renewal, and that if the respondent chose to get the deed stamped before presenting his reclaiming note, the Court would give such effect to the operation as the case admitted of or required. Now, however, there is no appeal from the judgment of a Sheriff declaring a trustee, so that the remedy suggested by the Lord Ordinary could not be obtained; whilst, on the other hand, by the Act 16th and 17th Vict., cap. 53, sec. 7, express power is given to the Sheriff in certain cases to sist process or delay proceeding in the competition until certain things be done to amend oaths and claims. Neither does there seem any sufficient reason for pursuing a different course with regard to unstamped documents in a competition from what is adopted in other processes. In Tilsley's Treatise on the Stamp Laws, second edition, page 294, the author explains the prac tice of Courts to be for "the Judge to allow an agreement to be stamped pending the hearing, or to direct the cause to stand over for the purpose of getting a stamp impressed." And he adds: "Judges in the Courts of Equity have even gone so far as to proceed in the hearing of a cause, and to pronounce a decree therein, founded upon an agreement not stamped, directing such decree not to be drawn up until the instrument be produced to the registrar duly stamped." On the whole, considering that the fate of the election is likely to turn on the stamping of the decree arbitral in question, the Sheriff-Substi tute thinks it reasonable to give the competitor founding on it an opportunity of validating the vote by stamping the document. This opportunity might have been afforded by simply allowing the case to lie over for a few days, but as the point is Interlocutor on the subject, which he may take to appeal if so somewhat new, the opposing competitor seems entitled to an advised.

The deed was then stamped, and the competitor Craig con sented to its being received.

Thereafter the following judgment was pronounced:

Having resumed consideration of this process and of the notes of objections for Robert M'Cowan, accountant, Glasgow, whom failing, William Brown, accountant there, and for Robert Craig, accountant, Glasgow, whom failing, James Thomson, accountant there, competitors for the office of trustee on the sequestrated estates of James Cairns & Son, tailors and clothiers, London Street, Glasgow, as a company, and as an individual; and having heard parties in terms of and of John Cairns, the sole partner of that company, as such, the provisions of the Bankruptcy Act, Finds and declares, for the reasons stated in the annexed Note, the said Robert M'Cowan to have been duly elected trustee on said sequestrated estates: Finds the unsuccessful competitors, Craig and Thomson, liable in the expenses of the competition, allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-At the meeting for the election, the votes for M'Cowan, whom failing, Brown, amounted to the sum of £7386 10s 10d, and those for Mr Craig, whom failing, Thomson, to the sum of £4411 14s 10d, giving the former an apparent majority of £2974 16s. It was addmitted at the scrutiny that unless the claim of James Cairns, senior, father of the bankrupt John Cairns, for £4193 108 8d was bad, the majority in favour of Mr M'Cowan could not be overturned. The said claim is supported by an affidavit and account or list of accep tances, the acceptances themselves, a deed of submission between the claimant and bankrupt, and a decreet arbitral following thereon, which has now been duly stamped, and in which decree is given for the said sum, in implement of which the acceptances were granted. The bills alone, as between father and son, would not have been sufficient vouchers, but the deed of submission, followed by the decree arbitral, cannot be thrown out of view or rejected, seeing that they are both ex facie formal and duly executed. It was said for Mr Craig that the submission and award were a simulate and collusive transaction between the claimant and his son; but if so, the two arbiters, who appear to be neutral parties, must have lent themselves to the fraud, which is not to be presumed. There may be ground for reducing the decree, or getting it set aside,