triennial prescription is not in force, that law could be founded on when the debt was sought to be recovered here. But all doubt upon that subject was removed by the decision of the House of Lords in the case of Dom, 26th May, 1837, Shaw and Maclean's Reports, vol. ii., p. 682, in which it was held, reversing the judgment of the Court of Session, that in all suits to compel performance of an obligation, whilst the nature of the contract founded on is to be judged of by the lee loci, or law of the country where it was made, the remedy to be given is to be governed by the lex fori, or law of the country to whose courts the application for performance of the contract is made. It is not, accordingly, denied by the pursuers here, that if the facts were such as to admit of the plea of triennial prescription, effect would fall to be given to such plea. In numerous cases, most of which will be found referred to in Mr Dickson's Work on Evidence, vol. i., p. 295, Note I., where debtors, after contracting a debt in England or abroad, came and resided three full years in Scotland, the defence founded on triennial prescription has been sustained. But the difference between all those cases and the present is, that the defender had not resided three years in Scotland when the action was raised. Both he and his creditors are English; and during the whole period that the debt was being contracted, namely, from the 15th December, 187, to the 18th March, 1858, they were both domiciled in England, which country the defender left eight months after the date of the last item of charge. Prescription is a penalty upon the creditors' negligence, and the negligence consists in a failure to pursue for three years, such pursuit having been competent during that period. In the present instance the pursuers have not allowed three years to elapse since they could have sued their debtor in a Scotch court; and the defender, to get him self within the benefit of his plea, proposes to add eight months of a residence in England to a residence of two years and ten months in Scotland. The pursuers, however, were guilty of no negligence in not suing him in England, and the obligation which the Scotch statute imposes to sue within three years, under the prescribed penalty, infers that there was a power of suing all that time in a Scotch court. As was remarked by Lord Eshgrove, in the case of Devalle, 9th March, 1786, F C., "It is not the debt which prescribes, but the action." Now, the action cannot prescribe until the three years have run during which it might have been insisted on in this country. Although the point now raised does not appear to have been adjudicated upon in terminis, very analagous de cisions have been given in favour of the principle contended for by the pursuers. Whilst it was held in the case of Lord Lovat, December 2, 1742, Mor. p. 4512, that a promissory note payable on demand, granted by a Scotchman, who resided and continued to reside there for six years after grant ing the note, fell under the English Statute of Limitations, and could not afterwards form the ground of action against the debtor or his representatives in Scotland; it was, on the other hand, held, in the two subsequent cases of Renton and M'Neil. Mor. pp 4516 and 4517, that the Statute of Limita tions did not run in favour of persons who removed during the currency of the six years from England or Ireland to Scot land; or, in other words, that the period of residence in Scotland, to which the Statute of Limitations does not extend, could not be founded on as making up the period, the lapse of which, under that statute, cuts off the claim. It is plainly just the converse of this which the pursuers here maintain. Finally, the authority of Erskine is altogether in favour of the pursuers, and contains what appears to the Sheriff-Substitute to be the sound doctrine, and to which he has given effect Erskine says, Book iii., Pit 7, Sec. 48: "Though the debtor should return to Scotland after the expiration of three years, (which is stronger than the present case), but before the English limitation of six years has taken place, the creditor ought not to be cut off from his claim upon our triennial prescription, unless he shall have delayed to commence a suit for three years after the debtor's return home; first, because our statute establishing that prescription, though expressed in general terms, cannot, by a just interpretation, be extended to foreign contracts, (for England is in this question a foreign country to us), unless the debtor has afterwards resided in Scotland for that whole term of three years; and, second, because it is inconsistent with equity that a debtor's fraudulent device to disappoint his creditors by changing domicile, should have the same effect as a discharge of his obligation, without any negligence that can reasonably be imputed to the creditor." This Interlocutor was appealed, and Sir Archibald

Alison, having heard parties' procurators, pronounced the following judgment:

Having heard parties' procurators at great length under the defender's appeal upon the Interlocutor appealed against, and made avizandum, and considered the closed record and whole process, affirms the said Interlocutor, in so far as the findings in fact are concerned: Finds that it is established by these findings, that more than three years had elapsed from the date of the last article in the account sued for before the date of the execution of the summons, but that the defender had only been for a period of two years and ten months resident in Scotland; and the question now is, whether the want of the two months to complete a three years' residence is sufficient to exclude the operation of the statutory prescrip tion of three years: Finds, in point of law, that the Statute 1579, introducing the triennial prescription, declares that action on open accounts shall be commenced within three years without distinguishing between the case whether the defender to such action shall have been three years resident in Scotland, or only part of that time: Finds, that in dealing with a Statute, which prescribes one general rule for all cases, the courts of law are not entitled to introduce exceptions into the operation of the Statute, not recognised by the Statute itself: Finds that it is a general principle of law, that whenever a debt contracted in one country is sought to be recovered in another, the lex loci contractus is to be regarded in considering or interpreting the contract, but the lex fori is to be applied in judging of the remedies by which it is to be enforced: Finds that the lex fori here, is the Act 1579, introducing the short triennial prescription, and that as that Act declares that the action for the debt must be intented "within three years, otherwise the creditor shall have no action, except he either prove by writ or by oath of his party," that is, the lex fori applicable to the present case: Therefore alters the Interlocutor complained of, sustains the plea of prescription, and allows the pursuers a proof of the resting owing of the account libelled, but that only by the writ or oath of the defender, and remits to the Sheriff-Substitute to fix a diet for taking said proof, and do farther in the premises as to him may seem just. NOTE. This is a very nice question, which has been ably treated by the Sheriff-Substitute, and was also ably and anxiously debated on both sides under the appeal; and the Sheriff is aware that the judgment now pronounced by him is at variance with the authority of Erskine referred to in the Note of the Sheriff-Substitute. The law, however, since Erskine's time, has undergone a great change in this particular by the decision of Lord Chancellor Brougham, in the case of Don v. Lipman, decided in 1837. His Lordship there observed: "Whatever relates to the nature of the obligations ad valorum contractus is to be governed by the law of the country where it was made the lex loci; whatever relates to the remedy, by suits to compel performance, or by action for a breach ad decisionem lites is to be governed by the lex fori the law of the country to whose Courts the application is made for performance or for damages. This principle was the ground of decision in the British Linen Co. v. Drummond and it has been since followed in other cases. So far wa this rule carried in the English Courts, that in the case o Drummond above mentioned, which was an action upon formal Scotch bond which would prescribe only in forty years the English Courts held that under an action against th debtor in England, the debt was cut off by the English Statute of Limitations of six years. This shows how strictly they go to work in applying the lex fori to a foreign contract however formal or binding in another country. This rul allows of no exception in the case of a debtor who ha been only part of the three years resident in Scotland and, accordingly, Mr Dickson, in his work on Evidenc vol. i., p. 367, says: "Upon these authorities it may no be laid down, as settled law, that a foreign contract obligation, when sought to be enforced in this country, subject to such Scotch prescriptions as merely limit the mod of proof or the right of action. Moreover, the applicatio of this rule does not depend on whether the debtor resided in t country during the prescriptive period." If any other ru were followed in the Scotch Courts, it might happen that debtor who had contracted a debt in England, and want only a few days to complete a three years' residence in Sc laud, might have the debt kept alive against him, at least Scotland, for thirty or forty years, contrary to the express wor of the statute introducing the triennial prescription, enacti that all actions for debt "be pursued within three years." Act. ALLARDICE. Alt. A. WATT,

Having heard parties' procurators on a motion for the respondent, that the remit from the First Division of the Court of Session, a certified copy of which has been produced in process, be applied, that a new diet of proof be fixed, and that the appellant be ordained to produce the party George Sim for examination: Refuses the latter part of said motion, in respect that a more than usual indulgence of time has been already allowed the respondent for concluding his proof, and that no evidence has been adduced that the party George Sim is under the control of the appellant, and is wilfully kept back by him; but grants the first part of said motion, and in terms of the certified copy Interlocutor of the First Division of the Court of Session, recalls the Interlocutor of the 4th June last, and appoints the case to be put to the debate roll of the 30th

instant.

Having heard parties' procurators on a motion for the respondent, allows him to lodge a condescendence of res noviter within two days.

NOTE.-Although it is not the practice to close the record by a formal Interlocutor in processes of appeal under the Bankrupt Act, the revised minutes of parties are nevertheless held as a closed record in terms of the statute, and after proof has been allowed and led of the averments therein contained, and new matter relevant to the question at issue subsequently comes to the knowledge of one of the parties, there is no reason why he should be excluded from getting it stated in such appeal processes, any more than in any other; and the most regular mode of doing so appears to be by a condescendence of res noviter prepared in terms of the provisions of the Act of Sederunt, with this modification-that the res noviter will be stated to have emerged, not since the record was

closed, but since the revised minutes were lodged and parties

heard on them.

In the first part of the condescendence lodged in terms of this Interlocutor, it was averred that Sim and the appellant were full cousins-that he had been a flesher, and at one time in the employment of one Gilmour, whose widow he afterwards married-that he had lost his business, left his wife, and had not resided with her for years, nor had since contributed anything to her support-that Sim had not since had any fixed residence, but had principally frequented the appellant's place of business, and a place in Trongate, kept by a woman named Hall, from whom, and the appellant, he had ever since received his support. Some years ago Sim had kept a public-house on account of the appellant, and had ever since been more or less connected with the appellant-that he was under the control of the appellant, and had been wilfully kept back by him from giving evidence—that there was collusion between them, and that they had been frequently seen together since the appeal had been raised -that Sim had never been in a position to advance a sum of £100, and was not known to have been engaged in any lawful business for the last eight years -that the claim had been concocted by Sim and the appellant with the intention of defrauding the bankrupt estate. The circumstances under which the bill was obtained were alleged to be the following:-The bankrupt's wife was in jail sometime after the estates were sequestrated, and the appellant was asked and agreed to become caution for her liberation, and, as a security, he took the promissory note. Afterwards, doubting the value of his security, he represented to the bankrupt and his wife that the note was of no use; they were induced to grant an assignation of the reversion of the bankrupt estate in his favour, in the belief that the promissory note had been destroyed, and that they had actually seen it, or a paper closely resembling

it, destroyed by the appellant. It was farther averred that the bill, though dated in May, 1860, had been written in August, 1860, by a William Gardner, in presence of the appellant, who provided the stamp and paid a share of Gardner's charges for writing it-that the bill was signed in Gardner's presence, and that of the appellant-that it was given as a security in relief of his bail bond for £50 for Mrs Croll, and that Sim was not present when the note was signed, and that no money was paid to the bankrupt or his wife at the time. In answer, the appellant denied his relationship to Sim-that Sim had principally frequented his house that he ever supported him--and, on the contrary, the appellant knew that Sim had had money in two different banks at the time referred to. It was denied that Sim had been under the appellant's control, or kept back by him, or that there was collusion between them, and generally a denial of the allegations of the condescendence. The averments in the first part of the condescendence, and the answers to the second part, were added to the record, and a proof of them was allowed to the respondent, and to the appellant a conjunct probation.

Proof was then led at considerable length, and thereafter the Sheriff-Substitute pronounced the following judgment:

Having heard parties' procurators, and resumed consideration of the proof, productions, and whole process, Finds it proved that the promissory note produced with the appellant's affidavit is a pretended and fraudulent voucher, which does not represent any real debt, and does not support said appellant's claim: Therefore, and for the reasons stated in the annexed note, adheres to the deliverance appealed against, and dismisses the appeal: Finds the appellant liable in expenses, allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-The story told by the appellant when examined as a witness for the respondent on the 13th of March last is, that

he bought the promissory note (which is for £100) from the payee, George Sim, about the end of August, 1860, for the sum of £80, and that the reason why it was indorsed "without recourse" was because £20 less than the sum in the note was paid to Sim, and because the appellant had previously got an assignation from the bankrupts to the reversion of their estate, which was expected to be something considerable after paying off all debts. The appellant says no one was present when he bought the note, and that he does not know whether Sim had given value for it or not, or whether it was granted on the date it bears, viz., 28th May, 1860, as he was no party to the granting of it. He also depones: "I do not know in whose handwriting the promissory note is. I did not see it written." He states, however, that he got it noted about the time it became due, which, as it has a three months currency would be at the end of August, 1860. But the witness Angu M Lachlan swears that when the appellant spoke to him at the end of December, 1860, about making out his affidavit he showed him the note, and that neither the indorsation 'George Sim without recourse," nor the noting which it now bears, was then on it; that he, M'Lachlan, advised the indor sation to be put on, and the appellant took it away an without the noting; that M'Lachlan then suggested that brought it back next morning with the indorsation, but stil should be noted, and the appellant again took it back notes The witness Wilson, the notary public, by whom the noti noting; but as Wilson admits that he may not have noted was made, so far contradicts this testimony as to the time of the date his noting bears, little weight is due to his ex dence. Corroborative of M'Lachlan, but still more fatal the appellant, there is next the testimony of William Gardne he did so not on the 28th May, the date it bears, but at th He swears that it was he who wrote out the note, and the end of August, at which time the appellant was desirous

use of the furniture, which is the only rent, interest, and produce of which furniture is capable, and that the petitioner, as trustee, is not entitled to take the same from her: Therefore sustains the defences, assoilzies the respondent, finds the petitioner liable to her in expenses, of which allows an account to be given in, and remits the same to the auditor of Court to tax and report, and decerns.

NOTE.-For the petitioner, it was pled at the bar, that, although the contract of marriage excludes his jus mariti, it did not take away his right of administration; but he forgets that he sues not as husband, but as trustee, and that the contract of marriage itself takes away the right of administration from him qua husband, conferring this right on him, along with others, as trustees; but, as trustee, he is bound by the directions in the deed conferring that office upon him, one of which is to pay over the rents, interest, and produce to the respondent during her life, and the only produce or rents that furniture is capable of, is its use. Taking this view of the case, the Sheriff-Substitute does not think it necessary to allude in the Interlocutor to the other pleas of the respondent, as to two-thirds of the furniture being the property of her children by her former husband.

This Interlocutor was appealed, and after parties' procurators had been heard, the Sheriff, Sir Archibald Alison, pronounced the following judgment:

Having heard parties' procurators under the pursuer's appeal upon the Interlocutor appealed from, and whole process; in respect it is admitted that the furniture in question, or part thereof, was the property of the wife before her marriage to the pursuer; and in respect, on that event, it was under an antenuptial-contract, along with all the wife's other property, conveyed to trustees, to be held by them for her exclusive behoof during the subsistence of the marriage, without distinguishing whether the spouses were living together or separate; dismisses the appeal, and adheres to the Interlocutor appealed against.

dressed to "Mr John Maccallum, bookseller, Rothesay," and not to the bankrupt, John Duncan Maccallum. There is no evidence produced with the claim that the said "James Barrie" is authorised by the claimant to draw and accept bills on his behalf.

2. Oath by Duncan Cameron, for Cameron & Co., wholesale stationers, etc., Glasgow, claiming to be ranked and vote for the sum of £4 0s 113d.

This claim is bad, in respect that the claimant does not depone that the debt is due by the bankrupt, but depones that the debt is due by "John D. Maccallum, stationer, Rothesay." The bankrupt is not a stationer in Rothesay, and the claim must therefore be held to apply to some other party. The requirements of the

statute have not been complied with in these and other respects.

3. Oath by William Collins, wholesale stationer, Glasgow, claiming to be ranked and vote for a debt of £10 11s 10 d.

This deponent does not take oath that the debt is du by the bankrupt, as required by the statute.

The claim and vote are worthless, and cannot be re cognised or admitted under this sequestration.

4. Oath by Francis Orr & Sons, wholesale stationers Glasgow, claiming to be ranked and vote for £6 19s 730 Same objections as stated to claims Nos. 2 and 3. 5. Mandate by Porteous & Hislop, Glasgow, date 25th January, 1862, cancelling all former mandate granted by them under this sequestration.

From the terms of the mandate in favour of the sai John Miller, it would appear that Porteous & Hisle granted various mandates to several parties for the sam purpose. There is no oath produced, and the mandat can therefore have no effect.

For Miller

1. Oath by James R. Macnair, bookseller and st tioner, Glasgow, claiming to be ranked and to vote f the sum of £3 16s 11d.

The account produced is not sufficient to vouch t debt claimed, and farther, it has been altered or amend after the relative oath and docquet were made.

2. Oath by John M'Kendrick, bookbinder, Glasgo claiming to rank and vote for the sum of £1 9s 1d. The account produced is not sufficiently identifi with the oath, of which it does not form a part. 3. Oath by Malcolm Maccallum, Jun., residing Ardbeg, Rothesay, claiming to rank and vote for t sum of £40 6s.

1st, No vouchers have been produced to establish t debt, and the account, or state of debt founded on, d not comply with the statutory requirements for proof debt.

2d, It is believed that the bankrupt is not indebted the claimant in any sum whatever-that if the claim: acted as assistant to the bankrupt during the per claimed for-of which, however, there is no evidenc his services were given gratuitously, so far as the ba rupt was concerned, and, in terms of a family arran ment between the parties, or that any remunerat stipulated for, has been duly received by the claimant will be ascertained by count and reckoning between and the bankrupt.