that he never took delivery, he has failed effectually to accomplish the purpose which seems to have been contemplated. In fact, it is forced on the Sheriff-Substitute's attention, from the present and previous cases, that Mr Hamilton has, in the course of his business, attempted the legally impossible act of advancing money on the security of moveables without assuming possession.

This Interlocutor was appealed, and parties' procurators having been heard, the Sheriff, (Sir Archibald Alison), pronounced the following judgment:—

Having heard parties' procurators at great length under the appeal for the claimant Hamilton upon the Interlocutor appealed against, and having made avizandum with the debate, and thereafter considered the proof adduced, productions, and whole process, adheres to the Interlocutor appealed against, and dismisses the appeal.

NOTE-This case was ably and anxiously debated by Mr Lang on behalf of the appellant Mr Hamilton, but notwithstanding all that was urged by him, and after maturely conEdering the proof and productions in process, the Sheriff sees Do grounds for disturbing the judgment of the Sheriff-Substitate, who appears to have bestowed great attention on the case The Sheriff has arrived at the conclusion that the Interlocator must be adhered to, without reference in any way to the decisions pronounced in the other two cases referred to in Sheriff Substitute's Note, in which Mr Hamilton is stated to have been a party, as these cases are not now before the Court, and are not produced or founded on in any way in this process, which falls to be decided on its own merits. With at entering minutely into the reasons assigned by the SheriffSubstitute for the judgment pronounced or adapting them entirely, it seems sufficient to remark that the documents and of clearly lead to the conclusion that the transaction entered by Mr Hamilton with the Freelands, the tenants of the arm, in 1858, was one simply for an advance of money on the ecurity of the crop and stock on the farm; and not a pur, and the terms of the assignation executed in Hamilton's ar on 13th July, 1859, show that what was then conveyed thin was really understood still to belong to and to be the property of the bankrupts, in consideration of a sum then said to be paid to them, but which in reality was not advanced at that time, contrary to, and contradictory of the alleged prior e to Mr Hamilton. And as the Freelands, the tenants of the farm, even after the date of this assignation were allowed remain in possession of the farm crop and stock, down to the estration of their estates, without delivery ever having een taken by Mr Hamilton, it appears to the Sheriff that the am of the trustee to the fund in medio, which is the surroam for the crop and stock, is preferable to that of Mr Hamilton under the writings founded on by him.

For M'Cubbin, real raiser-J. L. LANG.
For Hamilton-JOHN CLARK.

5TH JULY, 1862.

SHERIFF COURT, FIFE. (MR SHERIFF TAYLOR.)

HUTT, or WATT, v. WATT.

The Deeds-Pledge.-Circumstances in which held that Title Deeds had been pledged in security of a loan. Traction was brought by the petitioner for the purse of recovering from her son, the respondent, a disrelating to a house in St Monance which bed to her. The petition concluded also for delivery certain other titles which, it afterwards appeared, were not in the respondent's possession, and, so far as y were concerned, its prayer was not insisted in.

The petitioner's statement was that, in the year 1859, she sent these titles by the respondent and her daughter to Mr Oliphant, writer, Anstruther, to enable him to prepare a settlement for her; that sometime after the settlement was executed, the respondent called on Mr Oliphant and obtained delivery of the titles, but although frequently called upon to give them back to the petitioner, he had failed to do so.

The respondent admitted that he originally obtained the deed in question for the purpose stated; that he subsequently, as mandatory of the petitioner, got it up from Mr Oliphant and had not returned it. He averred, however, that, after the deed had been granted, the petitioner was anxious to have the lower flat of her house-which was then only a cellar-repaired and fitted up as a dwelling-house, and that he (the respondent) advanced the money and paid the contractor £21, and that he also paid the cost of her settlement, being £3. He farther averred that the petitioner, having been pressed for payment of a considerable sum to a Mr Rogers, and with the view of securing the respondent preferably for his whole advances, she gave him an authority to get possession of the titles, which had been in his hands ever since as security for the above sums.

The mandate founded on by the respondent was in these terms:

"St Monance, 2d March, 1861. "SIR,-Please deliver my titles and deed of settlement to my son, Allan Watt, whose receipt will be binding on, "Your most obedient servant,

"JANET HUTT."

"Mr Philip Oliphant, writer, Anstruther."

In reply, the petitioner denied having had any wish for the alteration on her house, and averred that she The respondent, opposed it, but ultimately consented. who had been fortunate in Australia, having stated his object to be to provide a residence for a widowed sister; that she was never consulted as to the nature of the alterations, nor did she employ the tradesmen, or see their plans, or know the amount paid to them. She admitted her readiness, for the sake of peace, to pay the account for the settlement, although she denied that she was liable for it, and averred that she offered to pay the respondent a larger sum than that before the action was raised if he would give up the papers. She farther expressly denied that she authorised the respondent to get up or hold the titles in security of a debt, averring that her only object in authorising the respondent to get them was that she might hold possession of them herself. She farther stated that the respondent had never made any claim against her for these sums.

The record having been closed, the Sheriff-Substitute pronounced the following Interlocutor:

and whole process, allows to the defender a proof of his averThe Sheriff-Substitute having considered the closed record, ment in article 4 of his statement of facts, to the effect that the disposition (No. 3 of titles) described in the petition was put into his possession by the petitioner as a security for his claim of £24, with the view of securing the respondent preferably for his advances, and to the petitioner a conjunct probation, and assigns the 11th proximo, at 10 o'clock A.M.,

within the Court room, for leading the proofs, reserving consideration, quoad ultra.

The petitioner did not appeal against this Interlocutor at the time, but allowed a proof to be led. The only witnesses adduced by the respondent were himself and his wife, and, to meet their evidence, the petitioner gave her own testimony.

After hearing parties' procurators on the proof and whole cause, the Sheriff-Substitute pronounced this Interlocutor:

The Sheriff-Substitute having heard parties' procurators, and having considered the closed record, productions, proof, and whole process, Finds that the respondent is not in possession of the precept of clare constat and instrument of sasine thereon, specified and concluded for in the petition; but that he is in possession of the disposition described in the petition, being No. 3 of the title deeds therein set forth, and with reference to the defence that the said disposition was received from the petitioner, and is now retained by the respondent as a pledge in security of a debt of £24 due to him by the petitioner, Finds, as admitted by the petitioner, that the respondent advanced for her a sum of £3 sterling on 11th June, 1859, in payment of an account due by her to Mr Philip Oliphant, and that he also made advances for repairs admittedly executed on the petitioner's house in December, 1859, for which he has produced in process a receipt to the amount of £21, which two sums are still unpaid by the petitioner: Finds that, under a mandate granted on 2d March, 1861, by the petitioner in the respondent's favour, the respondent received delivery from her agent, Mr Philip Oliphant, of the said disposition: and Finds it sufficiently established that the said disposition was so delivered to the respondent for the purpose of being held by him in security of the debt due to him by the petitioner: Therefore assoilzies the respondent in so far as regards the conclusions for delivery of the said precept of clare constat and instrument of sasine thereon: Finds the respondent entitled to retain possession of the said disposition as a pledge in security of his debt against the petitioner, and so far sustains his defence, and decerns: Finds the petitioner liable in expenses, of which allows an account,

etc.

NOTE. The preponderance of the evidence is in favour of the defence that the deed in question was placed in the respondent's hands as a pledge in security of what the petitioner was owing him. The force of the petitioner's denial of that is weakened by the evident indistinctness of her memory, as shown in the occasional inconsistency of her statements; while the evidence of the respondent and his wife is not only distinct and consistent, but is corroborated, 1st, as to the existence of a ground of debt, by the petitioner's admissions and the vouchers in process; and, 2d, as to the special act of pledge, by the strong fact that the mandate, No. 4, to get up the papers was granted in the respondent's favour without any other cause being alleged by the petitioner for removing them from the custody of her agent.

The Sheriff-Substitute at one time thought of sisting process till the respondent should raise an action to constitute his debt against the petitioner, but, on reconsideration, he thinks that not necessary, for the decision of the point here at issue, which is confined to the question whether there was or was not a specific contract of pledge between the parties, and does not depend on the doctrine of implied lien.

The Sheriff having, on the petitioner's appeal against the Interlocutors of 31st March and 24th May, 1862, considered the reclaiming petition for the petitioner, closed record, proof, and whole process, recalls the finding in the Interlocutor of that the respondent advanced for her a sum of £3 sterling on 24th May, 1862, which finds, "as admitted by the petitioner, 11th June, 1859, in payment of an account due by her to Mr Philip Oliphant:" Finds it proved that the respondent advanced said sum for the petitioner on said 11th June, 1859, made for her the advance of £21 for the repairs on the in payment of said account due by her, and that he also petitioner's house, for which the receipt, No. 7 of process, dated 31st December, 1859, was granted to him, quoad ultra: Adheres to the said Interlocutor, dismisses the appeal and decerns, and remits the cause to the Sheriff-Substitute to proceed therein as shall be just.

NOTE. The petitioner maintains that the respondent has not set forth his alleged debt on record in a relevant and sufficient manner. statements in the defences ought to have been more distinct, The Sheriff, while thinking that the of the relative pleas, is that the respondent made the advances is of opinion that the true meaning of these statements, and of £3 and £21 for behoof of the petitioner, and that the peti tioner delivered the disposition, which is one of the titles of the property, to the respondent as a security for the said deb due by her to him. necessary, as maintained by the petitioner, for the respondent He is also of opinion that it is not to constitute his said debt by an ordinary action, and tha the proof allowed by the Interlocutor of 31st March, 1862 raised the whole points necessary to dispose of the petitioner application and the respondent's defence thereto.

Under that Interlocutor the respondent required to prov that the petitioner was indebted to him in the allowances £24 which he claims, and that the petitioner delivered to hir the said disposition, No. 3 of the titles, in security of the advances. The Sheriff is of opinion that he has done so b satisfactory evidence, which is corroborated by the vouche and mandate produced, and by the fact that he is in posse sion of the disposition. No doubt the petitioner denies th she gave him the disposition as a security, but the distin evidence both of the respondent and his wife disproves h testimony; and although the petitioner denies having giv the disposition as a security, she does not attempt to deny t resting owing of the debt claimed by the respondent as the constitution and subsistence of which the respondent a his wife both distinctly spoke when examined in proof.

By the delivery of the said disposition, as a security to respondent, there was constituted a lien in favour of the spondent over that deed-the effect of which is to enable respondent to keep that deed until he is repaid his de (See Bell's Com., 11, 24.)

The Sheriff regrets exceedingly to see so much litigati about such a matter, between parties so nearly related. Act. T. DAVIDSON, Cupar. Alt. J. MORTON, Cupar

7TH JULY, 1862.

SHERIFF COURT, GLASGOW. (Mr SHERIFF BELL.)

M.P., J. R. ALLAN'S TRUSTEES v. AGNES SHIEL and Others.

money was left by A to B, at whose death the princ was to be equally divided among her children nom tim. The testator predeceased the liferentrix and legatees, but only one of the legatees survived the rentrix. Held (1), that the legacies vested in the dren of B a morte testatoris; (2), That the husband legatee, who had died during the life of the lifere was entitled to be preferred, as in her right, to her

annuitants. But in both of these cases there were special circumstances clearly indicating that this was the testator's intention. It was pointed out by the bench in Johnston's case that no specific fund was set apart for the annuity, "so that the rule as to destination in liferent and fee did not apply;" and farther, that the principal sum was to be divided among children as a class, and was not bequeathed to them nominatim. These, and other things in the deeds, which were considered to indicate a positive declaration of the testator's intention, were held to distinguish the cases from a number of others previously decided, with the judgments in which there was no wish to interfere. One of these cases, to which express reference was made, was that of Marchbanks, February 18, 1836, in which a party having conveyed by a trust settlement the sum of £1000 to trustees, with directions that they should set it apart and apply the yearly interest as an annuity to A during his life, and on his death that they should divide and apply it in a certain manner, paying £400 to B, and the remainder to other parties named, it was held that the right to the £400 had vested in B on the testator's death, and was not suspended till the death of A. Lord Jeffrey, whose judgment as Lord Ordinary was affirmed, laid it clearly down that the mere constitution of a trust did not raise any presumption of its being the testator's intention that the vesting should be suspended; and he adds, "The practical rule rather appears to the Lord Ordinary to be this: That wherever the fee is finally destined, on the expiration of the liferent, to a certain individual, or to a single definite class or description of persons, without any ulterior provision or destination whatever, the right will vest, from the death of the testator, exactly as if there had been no trust.'

As regards the claim of Gunn, the surviving husband of the legatee Helen Shields, it is true, as pleaded by him, that it is settled by the case of Strachan, February 1, 1843, that in a competition between the surviving husband, whose jus mariti | had not been excluded, of a party who died intestate and with out issue and her executors, the whole moveable estate which had come to the deceased wife during her marriage, or was claimable in her right at her death, belonged to the surviving husband, the next-of-kin having no persona standi in competition with him in reference to such property. But it will be observed that in that case the wife's rights had emerged during the marriage, and were therefore vested in the husband at the time of her death. But here, the legacy, though it was vested in, was not payable to or claimable by Helen Shields before her death; and now that it has become payable, it is to be viewed as a succession which has opened, and is to be dealt with as such, according to the laws of succession, and not as a fund that ever formed a portion of the goods in communion. The point may not be without nicety and doubt, but the Sheriff Substitute has the more willingly come to the opinion that he has given effect to, from its having been admitted at the debate for Gunn, that if he had been preferred to the whole of his late wife's share, he would have been bound to account for the half of it to her next-of-kin or her representatives, so that he has not been kept out by the judg. ment here of anything more than he would have been obliged to surrender afterwards.

This Interlocutor was appealed, and, after a hearing, the Sheriff (Sir Archibald Alison) pronounced the following judgment:

Having again heard parties' procurators upon the point referred to in the last Interlocutor, and made avizandum, and considered the Interlocutor appealed against, and whole process, Finds that the judgment of the House of Peers in the case referred to in the last Interlocutor, Young or Robertson v. Robertson and others, is not applicable to the matter involved under the appeal for the party appealing against the Interlocutor, whatever effect it might have had upon the claim for the claimant, Mary Shields or Walker and her husband, who, as the only surviving legatee, claimed the whole £300, upon the ground that the legacies bequeathed to the legatees were not vested in them, a morte testatoris, and therefore belonged to her as sole surviving legatee: and Finds, as the said claimant, Mary Shields or Walker and her husband, acquiesced in the Interlocutor of the Sheriff-Substitute, finding that the legacies did vest a morte testatoris, that they are not entitled to be preferred to the whole of the fund in medio, but only to a fourth

share thereof, and did not appeal against that Interlocutor, the same is now final upon that point in this Court, and cannot be reviewed by the Sheriff under the appeal for the claimant, Gunn, upon a different matter with the other claimants: Finds, upon the merits of the claim for the claimant, Gunn, as the surviv ing husband of the deceased Helen Shields, one of the legatees, and the appeal lodged for him against the Interlocutor under review, that it is now maintained for him that the admission which he made at the debate before the Sheriff-Substitute was that if preferred to a fourth share of the fund in medio as in right of his deceased wife, he would be liable to account to his wife's next of kin for a half share of the whole goods in communion to the extent of what they could legally demand and not as stated in the Sheriff-Substitute's Note, that he was bound to account for the half of his wife's share of the fund in medio to her next-of-kin, as her representatives: Finds i pleaded in support of Gunn's claim for a fourth share of the fund in medio, as in right of his wife, Helen Shields, one of the legatees, that as the legacy had vested a morte testatoris as found by the Interlocutor under review, although it wa not payable at or payable to Helen Shields before her death seeing she did not survive the liferentrix, it could competentl have been assigned by her during her life, and was conveyed by the marriage of the legatee to Gunn, her husband, withou a special conveyance jure mariti along with, and forme part of the goods in communion between the spouses: Find it pleaded by the children of John Shields, and the claimant Kirkwood, that if Gunn gets the whole fourth share of th fund in medio, under an obligation to account for the good in communion, there is no likelihood of the accounting bein successful, and that, in point of law, as the legacy was n claimable by his wife during her life, and the jus exigendi ne having emerged stante matrimonio, the surviving husban cannot claim the whole legacy in virtue of his jus mariti a right of administration of the goods in communion, but on the one-half thereof as his wife's representative to that exter and that the other half belongs to the deceased wife's nextkin, or their representatives: Finds, in point of law, that as has been found that the legacies in question, vested in t several legatees, a morte testatoris, Helen Shield's one-four share of the fund in medio was vested in her during marriag and could have validly been assigned by her and her husba during her life as a portion of the goods in communion, & the wife's rights were therefore vested in the surviving h band at the time of her death: Finds that it has been decid by the case of Strachan, 1st February, 1843, that in a com tition between the surviving husband, whose jus mariti k not been excluded, of a party who died intestate, and with issue, and her executors, the whole moveable estate wh had come to the deceased wife during her marriage, or claimable in her right at her death, belonged to the surviv husband, the next-of-kin having no persona standi in com tition with him in reference to such property: Finds that decision is applicable to the present case, and that, as claimant, Gunn, was jure mariti at the death of his w Helen Shields, vested with her rights, he is entitled to preferred, as in her right, to her fourth share of the fund medio, and not merely to the one-half of that fourth sh under the obligation, incumbent on him by law, to accoun his deceased wife's next-of-kin, or their representatives, the half share of the goods in communion: Therefore pre the claimant, Gunn, as in right of his wife, the late H Shields, to one-fourth share of the fund in medio, which vested in her at her death, and so far alters the Interloc appealed against, but quoad ultra; and, as regards exper adheres to the said Interlocutor, and Finds that the claims Mary Shields or Walker, and husband, are liable to the o claimants in the expenses occasioned to them by the said M Shields or Walker, and husband, claiming the whole fun medio, only down to the date of the Sheriff-Substitute's I locutor, but in no subsequent expenses, seeing they did appeal against that Interlocutor: and Finds no expenses as between the claimant Gunn and the children of Shields and the claimant Kirkwood, in regard to E Shields' share of the fund in medio; and upon the minu compearance, and condescendence, and claim, now ten for Agnes Sweeney or Shields, as the widow of John Shi claiming to be preferred to one-third of the fourth share fund in medio belonging to the said deceased John Sh her husband, in his own right, allows said compearance received, but under reservation of all questions of exp

JARVIE AND SMITH v. J. AND J. JARDINE.

Bankruptcy-Sequestration-Deed of Arrangement. Objections to Sheriff interponing authority to Deed of Arrangement on a bankrupt estate, repelled.

THE estates of J. & J. Jardine, builders in Glasgow, having been sequestrated under the Bankruptcy Acts, it was resolved, at the meeting called for the election of trustee, to wind-up the estate under a deed of arrangement; and an application having been made to the Sheriff, the sequestration was sisted for a period of two months, within which a deed of arrangement was produced for approval. Certain creditors then appeared to cppose the deed of arrangement, and, after objections and answers had been lodged, and parties heard thereon, the Sheriff-Substitute pronounced the following Interlocutor:

Having resumed consideration of the deed of arrangement No. 32, the note of objections No. 40, the answers No. 41, and the minute for Jarvie & Smith, No. 42, Finds, that if it be competent for the said Jarvie & Smith, as creditors of the bankrupts to withdraw at this stage, as proposed in their said minute, their consent to the deed of arrangement produced and signed by them as consenters, then the requisite majority of four fifths in value does not remain, seeing that the gross valce entitled to be reckoned is as stated by the bankrupts themselves; and in the lists No. 33-5, £2031, four-fifths of which is £1624, whilst the value actually represented by the signatures to the deed is £1723, being an excess of £99 on the False required, but the value effeiring to the signature of Jarvie & Smith is £180 9s 3d-the withdrawal of which would leave a deficiency in value of £81: but Finds that such withdrawal is incompetent, and cannot be entertained, except pon the emergency of some extraordinary alteration of cirnstances since the subscription was adhibited, which, in the present instance, is not even averred, and therefore the mpleted contract, as between the bankrupts and the said Jarvie & Smith, and the other creditors, as set forth in the deed of arrangement, cannot now be resiled from, or, at all events, the validity of the deed of arrangement falls to be judged of as it stood when lodged (see Shaw's Bell's Com., vol. 1. D. 1272; also the Lord Chancellor in Robertson, 4th Feb., 31; 5th, W. and S., p. 10; also Sheriff, 23d November, , F. C., in which the Lord Justice-Clerk said: "He was arly of opinion that the creditors were not entitled, after the ordinary steps had been taken, and the case was in a curiae, to alter the situation of matters, nor to drive the debtor of that consent which was fairly and regularly given, and in which he had acquired a jus que Finds, as regards the objections to said deed, that hgh the objectors, the Crowhill, Milton, and Kenmure Carry Company, have a very trifling pecuniary interest at take, and are the sole objectors, they are nevertheless entitled to have the said objections, some of which raise questions of derable nicety, disposed of on their merits: Finds that the first objection, that the bankrupts have not made a full

and fair surrender of their estates, is denied, and is too vague to be remitted to probation, no particular concealment being condescended on; therefore repels said objection: Finds that the second objection, that the creditors resolved only that the estate," and not the "estates," should be wound up by a deed of arrangement, is too technical, it being evidently the meaning of the creditors, when they adopted the resolution, that the whole estates embraced in the sequestration should be included, and accordingly, in the deed of arrangement itself, the word "estate" and "estates" is used indifferently as signifying the same thing, and as meaning the whole estates both of the firm and of the individual partners, as such and as individuals, all of which are comprehended in the deed; therefore repels the said objection: Finds that the third and fourth objections, which are founded on the omission of the bankrupts to lodge a duly subscribed state or states of their affairs, in terms of the provisions of section 81 of the Bankruptcy Act, would not, although otherwise valid, have been fatal to the deed of arrangement, seeing that there is no provision that such failure shall render the procedure thereanent null: but Finds that it is only at the "meeting for election of a trustee" that signed states of affairs require to be lodged; and as the carrying of the resolution for winding up the estate by a deed of arrangement superseded the necessity for the election of a trustee, which was accordingly not proceeded with, there was no direct contravention of the statute; therefore repels the said objection: Finds that the fifth and sixth objections that the deed of arrangement cannot be sustained, because the creditors subscribing it have not entered appearance to crave its approval, is not valid, seeing that the Act does not require the appearance of the creditors, but only provides, by section 38, that after the deed is lodged the Sheriff shall hear parties interested, and the bankrupts who have appeared to support the deed are equally interested therein with the objectors; therefore repels said objections: Finds that the seventh objection is based upon certain discrepancies which are not material, and any error which may exist in the documents Nos. 7 and 8 of the sequestration process cannot affect the validity of the deed of ar rangement; therefore repels the said objection: Finds that the eighth objection is that no evidence has been produced to show that the creditors subscribing the deed of arrangement do, in point of fact, constitute four-fifths in number and value of the whole creditors of the bankrupt: but Finds that the Act does not make the voluntary production of any such evidence imperative, and where there is only a general denial that the statutory majority has been obtained, there seems no better way of ascertaining the fact than by calling on the bankrupt to produce a list of his whole creditors, and to make a solemn declaration in support of it before interponing the authority of the Sheriff to the deed of arrangement, and this course is always followed in this Court; there fore repels the said objections: Finds that the ninth objection, that the deed of arrangement has not been subscribed by any creditors of the bankrupts as individuals, is not valid, seeing that the deed bears in gremio to have been subscribed by the creditors both of the firm and of the individual bankrupts; therefore repels the said objection: Finds that the tenth objection, that the statutory majority has not been obtained because the deed is not subscribed by certain creditors whose debts are heritably secured, is not valid, because creditors whose whole debt is heritably secured cannot rank or vote in a sequestration, and have no interest in and cannot be parties to a deed of arrangement which does not in any way affect their securities; therefore repels the said objection: Finds that the eleventh objection, in as far as it relates to a claim for £16, of which no notice is taken in the list of liabilities, is of no weight, as the counting of that claim would not change the majority: Finds that, in as far as it relates to a claim for £126 not appearing in the list of liabilities, that no such claim has been made by the party named in the objection; and that, although it has been made by another party, it was shown at the discussion to be bad, being cut down by vouchers of payments held and exhibited by the bankrupts for which no credits are given in the claim itself; therefore repels the said objections: Finds that the twelfth and last objection is too vague, and in as far as founded on the averment that the bankrupt estates would yield a larger dividend, that the composition accepted of by the deed of arrangement is open to the answer that in the absence of any proot of the averment the creditors themselves must be held to be the best