John Fullarton, jun., for payment of the account No. 6-1 of process, which account includes the whole of the goods specified in the account appended to the summons, and additional items of dates subsequent to 12th January, 1861, which first items amount to the sum of £11 14s 8d, and John Fullarton paid Mr Gunn, on behalf of the pursuers, the sum of £23 to account, and a few days afterwards he granted the pursuers, a promissory note dated 27th March, 1861, payable two months after date, for £40, being the balance of this account, No. 6-1 of process: Finds that shortly after the said John Fullarton, jun., granted this promissory note to the pursuers he became bankrupt, and his estate was sequestrated under the Bankrupt Statute, and the pursuers were not paid the contents of said promissory note: In law, Finds that the pursuers did not innovate or delegate their claim against the defenders by accepting a partial payment to account, and a promissory note for the balance from John Fullarton, jun., as by the advertisement intimating the transference of their business, the defenders intimated that John Fullarton, jun., would receive payment of all the debts due to, and discharge the obligations of, the late concern, and thereby constituted him their trustee to discharge their obligations: Finds that as the promissory note for £40 has not been paid by John Fullarton, jun., the defenders cannot credit themselves with that sum: Finds the payment of £23 by John Fullarton, jun., to the pursuers on 18th March having been made as a payment to account of the account No. 6-1 of process, the pursuers are entitled to apply £11 14s 8d of this sum in payment of the five last items of said account, for which they hold John Fullarton alone as their debtor, but they are bound to credit the defenders with the balance, being £11 58 4d, which sum falls to be deducted from the sum sued for; therefore, decerns against the defenders for the sum of £40 18 54d with interest, in terms of the conclusions of the summons: Finds the pursuers entitled to expenses, subject, for the reasons stated in the following note, to modification; modifies the same to threefourths of their taxed amount, allows an account thereof to be given in, and remits the same to the auditor of Court to tax and report, and decerns. findings in point of fact are concerned; and also in so far as it finds upon the evidence that the transference of the business from the defenders to John Fullarton, jun., on 14th January, 1861, was sufficiently intimated and known to the pursuers and their traveller, Gunn, and that the same was afterwards homologated and acted upon by them; but upon the question of law arising upon these facts-whether the pursuers had agreed to an innovation or delegation of their debt, and taken the party, John Fullarton, as their debtor, instead of the defenders-alters the Interlocutor complained of; and, Finds that the debt has been innovated, and that the pursuers have, by their own acts, lost their recourse against the present defenders, the original debtors: Therefore, sustains the defences, and assoilzies the defenders from the conclusions of the action: Finds the defenders entitled to expenses. NOTE. There are two questions involved in this case-one of fact, and one of law-the first being, whether the transfer by the defenders of the business carried on by them to John Fullarton, jun., on 14th January, 1861, was made known to the pursuers, and acted on by them; and, secondly, the question of law, whether the pursuers by their acts, and the course which they followed, have lost their recourse upon the defenders, the original debtors, and accepted John Fullarton as their debtor in their stead. Upon the first point, it is thought that no doubt whatever can be entertained, because, admitting that the mere advertising of the transfer in the Glasgow Herald newspaper was not sufficient, without proof of special intimation to, or knowledge of the fact on the part of, the pursuers, to infer knowledge against the pursuers, the creditors of the old firm, yet the acts of the pursuers themselves afford decisive evidence that they were perfectly aware of the transfer having been made. Their traveller, Gunn, on 18th March, 1861, accepted £23 in cash, in payment so far of the debt, and took a bill for £40 for the balance, not from the defenders, but from Fullarton. When they raised the present action the pursuers concluded for their account, ending as at 5th January, 1861, although four items remained, amounting above £11, which are set down in the account No. 6-1, to which the partial payment of £23 was applied. Further, when Fullarton became bankrupt, and after the £40 bill had been granted by him to the pursuers, they claimed on his sequestrated estate for an account whereof the first part embraces the account now sued for, and allowed him credit for the bill of £40 granted to them, and £23 paid in cash credited in the account No. 6-1. Not a doubt can remain, therefore, that the transfer of the business to Fullarton was not only well known to the pursuers, but that they dealt with Fullarton as their proper debtor, not only for the old account incurred prior to the date of the transfer, but for the subsequent furnishings made to Fullarton himself. The question remains, however, whether, by so doing, the pursuers accepted Fullarton as their sole debtor and liberated the defenders? and upon that point the judgment of the Sheriff-Substitute now appealed from is in favour of the pursuers. On the other hand, the view which the Sheriff takes of that point of law is this-Novation, or delegation of a debt, is not to be presumed, and, in dubio, the new obligant is presumed to be additional security to the old. Stair, book i., t. 1, sec. 18, and Erskine, b. iii., 4, 22, are clear upon this point, and the civil lawyers are also unanimous upon it. But this presumption is a presumptio juris et hominis, and is not a presumptio juris et de jure, not to be traversed by any evidence to the contrary. The question, in short, is entirely one of intention; the presumption of the intention not to dis charge the debtor is a strong one, but it will yield to clear evidence that such was the intention of the creditor. Now, on that point, the Sheriff cannot but think that there is great weight in the observation of Vinnius on this title, De Novationibus, "that it is hard to conceive any other intention of parties, if they take an obligation from a new debtor, but that of innovating the debt and taking him as their debtor instead of the old one." This doctrine was accordingly applied by the Court in the case of Buchanan & Co. v. Somerville in 1780, Mor. 3402, which was pleaded by the first counsel at the bar, and received great consideration. It was there decided that novation was to be inferred from the substitution in toto of one debtor for another debtor with the creditor's consent. This decision, which is a leading one in our practice, and is obvi Both parties appealed, and Sir Archibald Alison pro- ously founded on an inference unavoidable from the conduct nounced the following judgment: NOTE. From the proof led the Sheriff-Substitute has no doubt that the pursuers and their traveller, Donald Gunu, knew that the defenders' business was transferred to John Fullarton, jun., before they received from him the £23 to account and the promissory note for £40, although both Gunn and Mr Pollock say they never heard of the transference till shortly before Fullarton's bankruptcy. As to Gunn's know- | ledge of it, the Sheriff-Substitute believes the evidence of Fullarton himself, which is corroborated by all the real evidence on this point. The invoices were all made out in Fullarton's name, which were also entered in defenders' day-book, and it is hardly credible that Gunn could have taken, or the pursuers received, a promissory note signed by a person whom they believed to be a mere servant of their debtor; but assuming that the pursuers did know that the defenders' business was transferred to Fullarton when they got the £23 and the note for £40, the legal question remains-Did this constitute any innovation or delegation of the debt? The Sheriff-Substitute thinks it did not. It is not denied that all the goods sued for were furnished by the pursuers to the defenders before the transference of the business to Fullarton, and the notice in the newspapers intimated to the defenders' creditors that Fullarton was authorised to discharge their obligations, and he was thus constituted their mandatory to this effect; and the pursuers were quite justified in applying to him for payment, and in doing so cannot be held to have relieved the defenders from their obligation to pay if Fullarton did not do The pursuers admit that the £23 which they did receive in cash from Fullarton was given in payment of account No. 6-1; and as this account embraces the whole of the account sued for, they are bound to apply the whole balance remaining, after discharging the five last items, to the extinction of the account sued for. As they have neglected to do this in the summons, and also as they have led a proof to attempt to show that they were ignorant of the transference of the business to Fullarton, their expenses are modified to three-fourths of their taxed amount. of parties, appears to be still unshaken by any subsequent authorities. For although there are several cases since that Adheres to the Interlocutor under review, iù so far as the time in the books, in which it was held that novation was not to be inferred or presumed from taking another obligation from a new debtor in addition to the former one, yet these are all cases in which the conduct of parties proved that the new obligant was intended to be an additional or corroborative security to the creditor, and that he had not discharged the former one. It is this circumstance of both obligants being still held to be bound, and not the additional obligant merely, which is wholly awanting in the present case, that, in the Sheriff's opinion, distinguishes it in the series of rerum judicatarum to the effect above mentioned. Thus, in the case of Wilson & Corse v. Gardner, (Hume 247,) it was held that novation was not to be inferred by the creditor taking a bill from his debtor, drawn by that debtor upon a third party who did not pay it. The intention to keep up the obligation against the old debtor was there evident, from making him the drawer and indorser of the bill on the third party, and, of course, liable to him in recourse if that third party did not pay the bill. So also in the case of Buchanan v. Adam, 20th June, 1833, it was held that a bill taken by a creditor signed by one of two parties, both of whom stood bound for the debt, was not a novation, and did not free the other obligant. Of course it could not be pleaded as such, for one of the original debtors was still kept bound. Moreover, there was this specialty in that case, that the bill was taken on condition of being given up when certain consignments made to the creditor were sold off; so that the new bill was in effect a corroborative security only. In like manner, in the case of Campbell v. Cruickshank, 27th February, 1849, it was held that a bill taken by a creditor, signed by one partner of a firm previously bound in its social character, on condition that till the new bill was paid the original bill signed by both correi debendi was to be retained, was no novation. Neither could it be pleaded as such, for there the intention to retain the original debtors as still bound was quite manifest. So also in the case of Fraser v. M'Lean, 28th November, 1849, it was held that where one of two obligants, both of whom were liable, in solidum, became security to the creditor in his own name only, there was no novation. Neither could there be, for one of the original debtors was still bound. Lastly, in the case of Patters v. Thomson, 23d December, 1843, it was held that a bill drawn by one trustee for a trust debt, accepted by the others in his name, without adding "trustee," was held to be no novation of the debt due to a third party. This case also contained the peculiarity which runs through all the others, of both the debtors or obligants being still bound, though in a different form, for the old debt. Whereas here the new obligation was taken by the pursuers from an entirely new party in no ways bound for the debt, and without either of the original obligants or debtors being made parties to the new one. Upon these grounds the Sheriff thinks that the defenders are entitled to be assoilzied in toto from the present action. But even if he had thought otherwise, and the Interlocutor of the Sheriff-Substitute should be reverted to in another Court, on the point of novation, one thing seems quite clear, that in any event the payment of £23 must be deducted from the sum sued for. That payment, proved by the receipt annexed to the account No. 6-1, of course applies to the oldest articles in point of date in the account to which it is attached; and these articles are, one and all of them, the very ones that are concluded for against the defenders in the present action. The Sheriff' cannot conclude without expressing the great satisfaction and aid he has derived from the very able manner in which this difficult case was pleaded before him by Mr Dixon, on the part of the defenders; and also by Mr Faulds for the pursuers. THIS was an action brought by the pursuer, chief engineer of the s.s. Emily, against Messrs Tennant & Co., -The Emily, owned by Mr H. L. Seligmann, merchant, Glasgow, was, in September last, chartered from him by Mr John Mather, the defender's shipping agent in Glasgow. Under that charter there was a demise of the ship and crew by the charterer, to the affreighter, and the master and crew thereby entered Mr Mather's service. In December the Emily sailed from Sunderland to Grangemouth, with a cargo inter alia of 206 tons of coal, shipped to Messrs Tennant & Co. On the arrival of the vessel at Grangemouth, the affreighter was insolvent, and this action was raised by the pursuer for wages due to him at the date of arrival at Grangemouth. For the defenders, it was contended-(1.) That the pursuer had no lien such as that claimed; (2.) That if it existed it had been defeated by payment of the freight in advance. To this it was answered for the pursuer(1.) That besides personal action against his employer, the seaman's wages are secured by a lien over both ship and freight, and where he had three remedies he might elect either; (2.) That while payment of freight in advance was legal-it was legal only when that mode of payment was stipulated in the shipping contract, whether charter party or bill of lading, which the seamen might examine for their own protection. In the present case, there was no such stipulation in the contract. The freight was at 6s 6d per ton, and the coals were entered in the manifest as goods, the freight on which was payable at Grangemouth. The Merchant Shipping Act secured to the seaman his remedies for his wages, even against his own articles, or agreement with his employers. A fortiori, the lien which the law had provided for his security, could not be defeated by any arrangement to which he was not a consenting party and which had not even been intimated to him. The Sheriff-Substitute having heard par procurators at two preceding diets, gave judgment. He observed that the question raised was a very important one, and not free from difficulties on both sides, and wished it had come up in the Ordinary, rather than in the Small Debt Court. Upon the whole, however, he felt inclined to sustain the second defence, and gave judgment accordingly, adding the following note:- The pursuer, as chief engineer of the steamship Emily, sucs the defenders for £4 6s 6d of wages earned by him on the voyage of said ship from Sunderland to Grangemouth. The defenders were consignees of, and liable in, freight for a portion of the cargo, consisting of a quantity of coals; and the affreighter, Mather, by whom the pursuer was engaged, having become bankrupt, the pursuer, in virtue of his lien, seeks to recover the wages out of the larger sum of freight payable by the defenders. The defence is that the defenders are not resting-owing any freight, having paid it in advance. The pursuer, while admitting the advance, denies that the defenders were entitled to make it, or that such payment bars his right to recover freight from them to the extent of his wages. But it is settled that freight may be lawfully paid in advance, and that for such freight there is no lien, or in other words, that the payment determines the lien: M'Lachlan, p. 433 and 441, and Maude & Pollock, p. 237. No doubt, the seaman may thus lose the additional security for his wages afforded by his lien over the freight; but as there is nothing to prevent the shipper or consigner on the one hand, and the affreighter or shipowner on the other, entering into a bona fide arrangement for payment of freight in advance, without mak ing the seaman a consenting party thereto, the latter, on the failure of the affreighter or owner, must fall back on his un, CHARLES ROBERTSON v. MRS DRUMMOND Nairne. Landlord and Tenant-Removing-Old and New Terms.-A Tenant granted a letter of removing, engaging to remove at the term of Martinmas. The Landlord wished to remove the Tenant at the new term, but as he maintained that, by the usage of the estate and district, the old term was understood, he applied for Interdict against his ejection at the new term. IIeld, that the Tenant was entitled to a proof as to what was understood to be the proper term of removal, and proof allowed. that the defender was about unwarrantably to eject him from his possession. Repels the second and third defences. Allows the pursuer a proof of his averments with reference to the proper term of removal, and to the defender a conjunct proof, and grants diligence against witnesses to enforce their atten dance at such diet as may forthwith be appointed, and reserves consideration of the fourth defence until the case comes to be advised upon the proof. NOTE. There can be little doubt as to the untenable nature of the first defence. The action is of the nature of a real suit, and, like a sequestration, has no primary personal conclusions, and therefore the proper Court to restrain an Act to be done within its jurisdiction is this Court; nevertheless, as it is to restrain, personally, the defender from doing what is said to be an illegal act, it might have been, perhaps, competent also in the Court of the domicile. The warrant was endorsed in terms of the Statute, to enable execution to be made at the domicile, and service being accepted, removes all objection to the form of execution. The third and fourth defences raise far more important and difficult matters. Under the old law a decree in absence in a formal action of removing could have been reponed against before execution, and that even although the defender had ac cepted of service. But a decree of removing in foro could of course only have been reviewed by the Supreme Court as in this review could only be by suspension, and on caution for all other cases, with the peculiarity that in cases of removing violent profits. The question therefore arises whether or not a letter granted under the recent Sheriff Court Act is to be held as equivalent to a decree in foro, or merely one in absence. THE pursuer and his brother had been tenants of the The Sheriff-Substitute is inclined to think that such letter is farm of Southtown, of Bandirran, since the to be held as equivalent to a decree in foro, and that, too, proyear 1804. The last tack expired at Martinmas, 1861, and the tenant holds that such letter is in the same category as a bond or bill ceeding upon a consent to or confession of judgment. He believing that, as in the case of other two farms on the whereon a charge has been given for more than twenty-five same property which he had recently left, the old term pounds. The suspension can alone be in the Supreme Court, was the term of his removal from this farm also, he ad- but even there are circumstances in which the Sheriff might interfere to prevent the oppressive use of the diligence. Sup. vertised the sale of his furniture midway between the old pose that the creditor threatened to execute his diligence and new terms of Martinmas last. But in the month of against the personal property not of his actual debtor, or to August last, at the factor's request, and in order to save execute his diligence before the expiry of the charge, or for a the landlord the expense of an action of removing, he had larger sum than in the diligence, in such and similar circumstances, where was challenge of the legal execution of the subscribed a letter, in the form prescribed by the late diligence, and which required instant protection, it would be Sheriff Court Act, engaging to remove as at Martinmas inexpedient as well as unjust to shut the door of the local last. Finding that he was to be ejected at the new term Court. So in a removing even under a judicial decree in foro, under this letter, he applied to the Sheriff for an interdict before the date actually mentioned, the Sheriff might interfere or a letter of removal under the Act where ejection was sought against the proprietor, on the ground that his brother en- to keep the party within his decree or letter, or from premises tered originally at the old term, that the old term was not within the decree or letter; suppose that the present action the term observed by himself in his entry to and removal eject the pursuer on the first of November, or any other date had been on the statement that the defender was seeking to from the other two farms, that the usage of the estate before the eleventh of that month, or from premises which and district was in favour of the old term, and that, in formed no part of the possession, the Sheriff would have had these circumstances, the words "Martinmas next" in the power to interfere. In like manner it seems to follow that letter must be held to mean Martinmas, old style, or the stated the term of removal as the twenty-second of November, had the letter of removal (or even a decree in foro) expressly 22d of November, and he craved to be allowed a proof as the Sheriff might have restrained the landlord ejecting before to these points. The proprietor, on the other hand, pled the day mentioned. This is very much the case in hand. The that as her residence was in Forfarshire the Sheriff of of removal, when interpreted by the practice of the district, pursuer maintains that the word "Martinmas" used in the letter Perthshire had no jurisdiction, that by the Act the letter and the actings of the parties themselves, is as clearly fixed of removal is equivalent to a decreet in a contested cause, for the twenty-second of November as if that date had been and that such decreet could be opened up or stayed by apend or dispute the legal effect of his letter of removal, but specially stated. The pursuer therefore is not seeking to susprocess in the Court of Session only, and that the tenant seeks to be protected from its unwarrantable execution before was not entitled to any proof as to the old or new terms, the term of removal has actually arrived. as the words in the letter could only mean the new or legal term. The record having been closed, and parties heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the closed record and made avizandum therewith, in respect that the subject-matter of dispute is one directly connected with an heritable subject within the jurisdiction of this Court, repels the first defence stated for the defender, in respect that the petitioner does not object or seek to set aside his letter of removal, but complains uniformity of terms, the absence of which is a fruitful source The present case is another illustration of the necessity for of inconvenience, strife, and litigation. This Interlocutor was appealed; but on considering a reclaiming petition for the defender, the Sheriff adhered by the following judgment: The Sheriff having considered the defender's appeal with reclaiming petition in support thereof and answers for the pursuer, dismisses the appeal and affirms the Interlocutor appealed from. NOTE. The question in dispute involves merely a question mas. of expenses, as the old term of Martinmas has passed, and the pursuer has therefore removed from the farm, and the only interest now involved is one of expenses. In order to determine that matter, however, it is necessary to dispose of the question whether the word Martinmas, as occurring in the letter signed by the pursuer, obliging himself to remove at that term, must be read as meaning the 11th November, however strong may be the allegations of the pursuer, that according to local usage when occurring in a document relating to entry to or removal of a tenant from lands it must be understood as meaning the 22d November, or old term of Martinmas. There is no doubt there are two terms of Whitsunday and Martinmas, the old and the new; and that in some parts of the country there prevails a local usage in accordance with which the term of entry to and removal from lands and houses is the old term of Whitsunday or MartinFor instance, in Edinburgh the old term of Whitsunday is the term of removal and entry to houses; and it would certainly lead to some confusion if under an obligation to remove from a house at Whitsunday it could be held that a tenant in Edinburgh must remove on 15th May; while taking a house in Edinburgh as at the same term of Whitsunday he could not get entry to it till the old term of Whitsunday. The Sheriff, therefore, thinks that evidence of the nature permitted by the Interlocutor may be allowed to show that the term of Martinmas, mentioned in the letter of obligation to remove, must be construed as 22d and not 11th November. To allow such proof is not to detract from the legal effect to be given to the written obligation; but only to ascertain what is the meaning of the words used to indicate the term of removal. Local custom or usage is admitted to regulate the rights of landlords and tenants, and although it is not allowed to do so if there be an express written obligation regulating their rights; still, if the words of that obligation admit of two meanings, it appears reasonable to allow a proof to ascertain in accordance with which of the two meanings the words have been used, just as custom or usage of trade may be admitted to explain the sense in which a word apparently admitting of no question has been used. The following cases may be referred to as supporting the competency of such proof for the purpose of ascertaining the meaning of words used, which may be construed by custom or usage of trade, or of a district.-Myers, 8 Jurist, 2d February, 1861.-Smith v. Wilson, 3, B. and ad.; 728, where "a thousand" rabbits was, owing to the usage in the district, held to mean twelve hundred. See also Gibson & Clark v. Stevens, 19th March, 1862-not yet reported. The case of Stewart, 21st December, 1851, referred to by Mr Hunter in support of the observations made by him (quoted in the reclaiming petition) as to the old term of Whitsunday and Martinmas, rather supports the view now acted upon. In that case, while the Court held that the old terms of Whitsunday and Martinmas could not be allowed to regulate the date from which interest on the price of lands should be payable (in regard to which there could be no proper local usage) it is added although by the custom of the country the tenants were not bound to remove till the 26th May and 22d of November." Act. JOHN KIPPEN, Perth. Alt. CLARK & BOYD, Coupar Angus. 22D MAY, 1862. SHERIFF COURT, GREENOCK. (MR SHERIFF TENNENT.) The TRUSTEES OF ST. THOMAS'S FREE CHURCH v. The GREENOCK SUGAR REFINING COMPANY and the DEACONS' COURT OF SAID CHURCH. Title to Church Property-Clerical error in designation -Interdict.-Held that trustees vested in church property could not of themselves dispose of the subjects for any other than religions purposes, and can interdict the Deacons Court and all others: That the firm Greenock Sugar Refinery Company, instead of Greenock Sugar Refining Company, was a mere clerical error. THE petitioners are proprietors of, and feudally vested in, St. Thomas's Free Church, Greenock, and ground connected therewith. They hold the subjects as trustees for the congregation of the Free Church of Scotland worshipping in that church, in trust, for the purpose of the place of worship; and appurtenances thereof being used as and for a place of religious worship, and under the other powers and conditions mentioned in the trust deed to St. George's Free Church, Edinburgh, dated 9th, 11th, and 12th November, 1844. On 5th March, 1862, the Deacons' Court of St. Thomas's Church, by Mr Andrew Carmichael a member thereof, let, by missive of agreement, to the defenders, the Greenock Sugar Refining Co., for 21 years, a piece of vacant ground opposite the Church, forming part of the subjects belonging to the petitioners, as trustees foresaid, and giving the refining company liberty to erect a dry store thereon, 13 feet high, at a yearly rent of £7 10s. The defenders, the refining company, immediately thereupon commenced operations, laid down bricks, lime, stones, and other building materials, cut the foundations, and proceeded with the erection contemplated. The Trustees raised an action of interdict, craving interim interdict, which was granted, and removal against the refining company and the Deacons' Court, founding upon their title and the condition thereof, and alleging that the lease had been granted without their consent, and was in violation of the conditions and terms under which the petitioners possessed the subjects. The Deacons' Court entered appearance and admitted the petitioners' title and allegation. The refining company also entered appearance, and stated in defence (1) That the petitioners had no title to sue; (2) That the defenders had not been duly cited, and that the action was directed against the Greenock Sugar Refinery Co., instead of the Greenock Sugar Refining Co.; (3) That they held a lease, as before mentioned; (4) That Mr Carmichael and the Deacons' Court were duly authorised to enter into the lease. After debate the Sheriff-Substitute pronounced the following Interlocutor, which has been acquiesced in: The Sheriff-Substitute having heard parties' procurators on the closed record and whole process, repels the dilatory defences stated for the respondents, the Greenock Sugar Refining Company: Finds that the petitioners are feudally vested in the subjects in regard to which interdict is sought, as trustees, under the declaration that the place of worship erected thereon, with appurtenances, shall, in all time coming, be used and occupied as a place of religious worship by a congregation of the body of Christians called the Free Church of Scotland: Finds that the said respondents do not produce or found on a title by any one vested in the said subjects, or legally entitled to grant one: Finds, separatim, that the petitioners, under the restricted title on which they hold the subjects-for religious uses-do not possess power to lease the subjects in question for the purposes contemplated in the missive of agreement founded upon by the respondents: Therefore, declares the interdict formerly granted perpetual, and decerns in terms of the prayer of the petition: Finds the respondents, the Greenock Sugar Refining Company, and Lachlan M'Kirdy and David Steele the partners of said com. pany, liable in expenses, allows an account thereof to be lodged, and remits the same when lodged to the auditor of Court to tax and report; and in respect that no expenses are craved against the other respondents, the Rev. William Lachlan and others, finds no expenses due, and decerns. NOTE--The only dilatory plea attended with difficulty is the one that in the copy petition served upon David Steele the company of which he is a partner is described as the Greenock Sugar Refinery Company, instead of Refining Company, in narrating the title of the petitioners. The name of the Company occurs in several other places in the copy petition, and also in the warrant for citation, and in all these places it is correctly given as the Greenock Sugar Refining Company. The two words appear to be nearly identical in meaning, and as the Sheriff Substitute is not aware of any case in which the Court have gone so far as to throw out a petition on so narrow an objection, he has thought himself warranted in repelling it as a inere clerical error. As to the merits, the respondents have not produced any title to support their possession of the ground which is vested in the petitioners. With regard to their offer to prove that the petitioners assented to their arrangement with Carmichael, the Sheriff Substitute is of opinion that they cannot be allowed such a proof, as the right of the petitioners, which is based on a limited trust title, would seem clearly to exclude any such use of the ground as was proposed in the missive of agreement, and to debar them from granting to the respondents any such right. Agent for the Petitioners and the Deacons' Court ROBERT BLAIR, jun. ALEXANDER CAMPBELL v. JOHN IRELAND. is no longer the bill which was originally issued or intended. Such bill is incapable of founding summary diligence. But in an ordinary action it is open to the pursuer to prove that the alteration was made by or with consent of the party sought to be made liable. In the present case the first question is, whether the bill is essentially vitiated. It has very obviously been cut at the lower edge. This, of itself, though creative of suspicion, would not be sufficient, as there is no law stipulating for a standard of size or shape in the paper. But it appears quite obvious that there has been a signature attached, the upper Then extremities of two letters of which are distinctly seen. the stamp which carried £100 instead of £40, (though in law valid,) ought to have called attention and aroused suspicion. Finally, the address is not in the handwriting of the person who filled up the body of the bill, but in that of the pursuer. Suppose it had originally been addressed to another party whose name did not now appear as acceptor with an entire bill, such might have afforded no valid objection, yet, where as here there was a subscription taken off, there could have been no question but that such bill would not have been held a good voucher of debt. The distinction between the case supposed and the present is not great. The bill, when it passed into the hands of the pursuer, was addressed to no persons, and it appeared that a name which had once stood as a party to the bill was no longer so, and therefore the bill was changed from its original purpose to one more limited, to the prejudice of the defender. There appears no doubt but that the pursuer is an onerous holder, and advanced his money in good faith. His receiving such a bill only proves his simplicity; nevertheless, though he certainly is the object of much sympathy, the law cannot bend its requirements to gratify such at the expense of its integrity as a general rule of mercantile dealing. This Interlocutor was appealed, and after a reclaiming petition and answers, the Sheriff pronounced the following judgment: The Sheriff having considered the pursuer's appeal with reclaiming petition in support thereof, and answers for tho defender, and whole process, Sustains said appeal: Recalls the Bill-Vitiation.-1 Bill Stamp was signed by a party who Interlocutor appealed from: Finds that the bill is not ex facic alleged that, when he signed it, the name of another party vitiated to any effect, and that it was given to the pursuer, was there also. An action was raised to recover the who must be presumed to be an onerous and bona fide holder contents of the Bill against the party whose name ap-which it now is, with the exception of the address, which has by the joint acceptor, William Laing, in the same state in peared at the Bill. An averment that the Bill was vitiated, the other name alleged to have been to the Bill having been cut away, repelled, and held that, ex facie, the Bill was not vitiated in essentialibus. This was an action by the alleged drawer of a bill against an acceptor. Defence-The bill, when signed by the defender, was blank, and he signed along with another party, whose signature had been since cut off, as was apparent from the bill. After a proof, the following Interlocutor was pronounced by the Sheriff-Substitute: Having heard parties' procurators, and made avizandum with the cause, Finds that the bill libelled on is a facie vitiated by a signature being cut off from the foot thereof, and that the pursuer has not proved that the same was done with the knowledge and consent of the defender to correct an error: Therefore, finds that the said bill does not form a good voucher of debt against the defender: Assoilzies him from the conclusions of the summons: Finds him entitled to expenses: Remits the account thereof to the auditor to tax, and decerns. NOTE.-Bills are highly-privileged documents, and there fore require to be dealt with great care. It is quite true that a person who subscribes a blank stamp or skeleton bill thereby gives a mandate to any person to fill it up as against him to the extent of the stamp, and to that extent he will be liable to any one holding it in good faith and for value. But such person is entitled to the same privileges as if the bill had been written out when he so adhibited his name. Where there is such a vitiation of a bill as essentially changes its terms, cither as to parties, currency, or amount, it since been added by the pursuer: Therefore repels the defences, and decerns in favour of the pursuer against the defender, in terms of the conclusions of the summons: Finds the defender liable in expenses, and appoints the account thereof, when lodged, to be laid before the auditor for taxation and report, and decerns. NOTE.--The presumption is, that the pursuer is an onerous and bona fide holder of the bill sued for, and, as yet, there appears to be no reason for doubting that such presumption is consistent with truth. Onerosity could only be disposed of by a reference to the pursuer's oath. Indeed, the defender does not appear to have raised any such plea. The Sheriff thinks that the bill does not ex facie show that it is vitiated in essentialibus. The date, the sum, and the names of the parties to the bill are all free from erasure or alteration. The Sheriff' holds that there is nothing apparent on the face of the bill sufficient to have excited the suspicion of any person to whom it might be given that it had been subjected to any vitiation or alteration. There is nothing peculiar in the size of the paper; and the fact of the stamp being sufficient to cover more than double the sum for which it bears to have been granted was not calculated to raise any presumption against its genuineness. The only matter which can be founded upon by the defender in support of his allegation of ex facic vitia. tion are the slight indications of what are said to be the tops of two letters under the defender's signature. But it occurs to the Sheriff that if the bill is looked at without previous knowledge of the explanations of the defender as to the signature of James Laing, which, he says, was at one time there, these appearances now founded upon are not calculated to excite the suspicion of any party advancing money on the bill. Indeed, in the defender's answer to the reclaiming petition, it is stated for him (page 4), that it was upon "closer examina |