had no voucher. He says he paid another sister £119 also for lent money and interest, for which also she he voucher.

The first inquiry is whether the insolvent is actually i possession of, or has the power over funds; or, granting the tive, whether he has not fraudulently applied the same prejudice of the landlord, his only creditor?

decision in cases of this sort as would exclude a fixed rule of charge, and introduce instead a universal plea of usage, vary; ing in every case from another, and founded on no general principle of decision. It is a different question whether the Faculty of Procurators in Glasgow, or any other body, can render as valid and binding upon the public, the charges for any particular piece of business, how extravagant soever they may be, by simply getting such charges sanctioned by a The insolvent has fixed on himself the large sum of majority of their body, the parties interested in support of the proceeds of a fund over which the landlord was such extravagant charges. In such a case, it is clear that the preferable. He says he has paid the greater part of the Court would not be bound to adopt any such rule; and it is to his sister Jane, and she has applied a portion thereof sufficient to say that that is not the case that here occurs. chase a cottage, with additional sums contributed by It is just the reverse, for it is the case of one member of a two sisters: That Jane and the other sisters had money is Corporation asserting that he is not bound to take the fees is proved, and without doubt the dates and the amounts fixed and adopted by the Corporation for a particular piece of coincide with the alleged advances to the insolven business, and refusing to deliver up a deed to a third party, there was no voucher of debt granted for these advane not connected with the Corporation, even on payment of these no discharge on their repayment. In any view, in the fees, but who insists on having a rate of charge which is not of bankruptcy the sisters could not have made goo sanctioned by the table fixed and adopted by the Corporation claims for the cash advances, so that the opposing of which he is a member. It is a material circumstance, that would have got full payment of his rent. Jane con the defender admits that at the time he became a member of have been ranked for her wages within the years of the Faculty of Procurators there was a table of fees in exist- tion, on sufficient evidence that they were due. T ence, passed and sanctioned by the Faculty, as the rule of therefore at this moment no proof but that the insolve charge for its members, the first part of which contained a possession of the proceeds of the sales, or that his sist rate of charge for conveyancing business. By becoming a them for his behoof. This position is much strength member of the Faculty, with these rules and regulations the transaction as to the purchase of the cottage. He staring him in the face, the defender clearly homologated and sole purchaser at the vendue, and after his imprison waived all objections to them, and by the terms of his com- title, with his express consent, was taken to the sisters mission bound himself to abide and conform to them, or to exists no small presumption that the price was paid such alteration or amendments thereon as may from time to funds, or, more truthfully, from the property of the time be enacted. In the particular circumstances, too, of the creditor, his landlord. This is still farther strengthen present case, where the writ or deed, the charge for which is very unusual fact of his abstaining from applying now in question, is only a page-and-a-half long, and is in great benefit of the act of grace, under which he would hav part composed of words of style merely, and a description of swear that he had no means to aliment himself in pri the deed to be confirmed, furnished to the defender, the would have been obliged to execute a disposition omai superior's agent, it may well be doubted whether, if, as stated rum in favour of his creditors. Under this the landlo by Mr Wright, the pursuer's agent, the rate of charge fixed have sued the sisters for repetition of the money ad by the Faculty table were thrown aside, and that of quantum received by them, and it is very doubtful how they co meruit taken in its stead, the charge would not be greatly less retained it without evidence of debt to which it c than that allowed by the table, and offered by the pursuer, been applied. Indeed, it is even open to raise that which is £6 98 6d, whereof only 5s is outlay for the stamp of under arrestment and forthcoming, so that it may b the writ. their consideration whether even, if their version of are correct, they ought not to aid their brother in ob reasonable compromise of the landlord's claim.

Act. SMITH & WRIGHT.

Alt. MONCRIEFF, PATERSON, FORBES & BARR.

11TH SEPTEMBER, 1863. SHERIFF COURT, PERTH.

(DR BARCLAY.)

JOHN LOGIE-Petitioner.

Cessio Bonorum.-Cessio refused indefinitely. THE insolvent had only one creditor, the landlord, who opposed the cessio. The facts of the case are set forth in the notes annexed:

Having heard parties' procurators, and made avizandum with, and considered the whole process, for the reasons set forth in the annexed notes, refuses the petition for cessio in

hoc statu.

NOTE. The circumstances of this cessio are very peculiar, and not anywise favourable for the insolvent.

But even according to the insolvent's statement of saction, he has committed a deliberate fraud b his sisters in full of their alleged claims from the pr the farm, and leaving the landlord's claim wholly the rent of the ground, the parent of the crop. If did not warrant an indefinite refusal of the cessio, at it demanded a very long period of imprisonment to The authorities strongly support the former rule of ju such cases in preference to the latter, and the Subs felt bound to adopt that rule. If he granted the a suspended extract for a definite time, it might h a matter of money calculation-What was the price to be sooner obtained? In the meantime, the in prison might be comfortably supported from his ow the hands of his sisters, and who are provided with tion with the remainder, all virtually at the exp landlord.

The Sheriff-Substitute has not relied in the least

the idle boasting of the insolvent as to his means an expectant of the farm, or his after-dinner exhi wealth. But his statements, after the landlord sough good his claim, are not entirely to be disregarded rating his intention to set his claim at defiance, then The insolvent renounced his lease, and so far from reserving the means within his power of satisfying the sam any claim of damages or freedom from rent, he expressly was neither law nor sense in his setting forth hi bound himself to pay the rent of the current year. The land- damage as against the rent, because, in the first lord used no sequestration, but permitted his tenant to sell off admits in the record in his action of damages th both crop and stock, which realised £466 11s 1d. This sum sound advice at an early period of his tenancy tha he applied or misapplied to the last farthing without even in not do so, and if his claim was made good, he had the least recognising the landlord's rent, which is wholly un-curity for its being fully satisfied. paid. The landlord is therefore now sole creditor, and the tenant's assets are said to be nil.

He states that he paid his sister Jane no less than £323 3s 4d from the proceeds of the sale. This is made up of £70 for seven years' wages at £10 per annum, for which (except it may have been the last) she had no preference, and the remainder is said to be repayment of lent cash, for which she

The above judgment was carried no farther.
Act. SKEETE.

Alt. F

NOTE. We understand that the debtor has chased his liberty by a payment of £100 to his c

that a prisoner applying any time within thirty days is entitled to draw upon the consigned fund for bygone aliment to the extent of the fund, but no more; and if he delays beyond the thirty days, the consignation has been set free, and he can only have aliment from the date of his application. Any contrary rule would lead to the absurdity that a debtor might indefinitely, even for years, sustain himself in prison with his own funds or those of his friends, and then when applying for aliment the amount would-reckoning from the date of incar

Grace. The limit of the debtor's claim for bygone ceration-be equivalent to the debt for which he was incar

heard, the Sheriff-Substitute pronounced the following might not have been inclined so to do; and on the objec Interlocutor:

Having heard parties' procurators on the closed record, Finds that the document founded on is not in its nature a promissory note, but purports to be, and is an agreement by the defender to pay on behalf of the party Love therein named 10s in the pound, on the amount of debt of £35 due to the pursuer by Love, and containing a reserved right on the pursuer's favour to rank against the debtor's estate for what it might show: Finds that, viewed in this light, it falls to be stamped; therefore sustains the preliminary defence, and sists process for three weeks, to enable the pursuer to get the document stamped, and reserves the pleas of parties quoad ultra, as also all questions of expenses.

that the document libelled on is neither holograph nor te in respect it is admitted that the bankrupt, Love, w trader and provision merchant, and the document in que was granted, with the view of relieving him from his barrassments and carrying through a sequestration, t pursuer, also a provision merchant, and in respect the gation has been acted on by the party holding it, re intert has followed thereon, and it is substantially admitted in defender's subsequent holograph letter produced in pr Repels the objection founded on the document not tested or holograph, and, upon the whole, dismisse appeal, and adheres to the Interlocutor appealed from.

Act.

Alt. JOHN STRACH

16TH SEPTEMBER, 1863.

SHERIFF COURT, PAISLEY. (SHERIFFS FRASER AND CAMPBELL.)

NOTE. The substance of the writing on which the pursuer rests his demand is engrossed in the Interlocutor. With respect to the defence, that it is ineffectual as a ground of action, being unstamped, the law of the subject, as deduced from the authorities, is thus stated by Professor Bell: "A stamp is required in all agreements which admit of pecuniary estimation, not being for the hire of a labourer, or servant, nor a memorandum letter, or agreement for or relative to the sale of goods." Principles, 5th Ed., s. 22. The writing is not a bill or bond, but an agreement to pay on behalf of another a sum in amount JAMES FERGUSON'S Trustee and Executor v. less than £20. Such a document requires a sixpence stamp, as provided by the statute 23 Vict., c. 15, Schedule Agreement, and the penalty payable on stamping now will be 10s. The writing falls under no other denomination. There may be the same doubt whether, as it is manifestly not holograph, and is

not tested, it constitutes a legally binding obligation at all, having regard to the decision respecting such writs in Hamilton's Executors v. Struthers, 2d December, 1858, 21 Sess. Cases, 51; see also Alexander v. Alexander, 26th February, 1830, and Shaw, 602, but no defence of that description has been stated, and the Sheriff-Substitute does not feel bound to enter on the plea ex proprio motu.

The document having meantime been got stamped, the Sheriff-Substitute pronounced the following Interlocutor: Having resumed consideration of this process, in respect the document founded on has now been validly stamped, repels the preliminary defence. On the Merits-Finds that there is no illegality in a creditor, before his debtor's estates have been sequestrated, accepting a cautionary security for payment of his debt either wholly or partially, and such security is not challengeable at the instance of the obligant himself; there. fore repels the defences, and finds the defender liable in ment of £17 18s 9d, being the sum sued for and covered by said document, with interest thereon, as libelled: Finds the

pay

defender liable in expenses, allows an account thereof to be lodged, and remits the same to the auditor to tax and report,

and decerns.

NOTE.-Mr Burton, in his Treatise on the Law of Bankruptcy, p. 259, s. 301, lays it down, on the authority of Low v. Bell, 12th June, 1827, 2 W., s. 579; Low v. Duncan, 12th June, 1827, 2 W., s. 584, that a claim which the creditor may justly have acquired against a third party in connection with the transaction (preference), is not affected by the Act 1696, where it takes nothing from the estate. The present appears to be a case within the scope of this rule.

The same learned commentator states that the persons entitled to challenge transactions struck at by the statute, are those who were the bankrupt's creditors at the time when the security or preference was granted.

The defender appealed, and thereafter the Sheriff pronounced the following judgment:

Having considered the Interlocutor appealed against, and heard parties thereon under the defender's appeal, and whole process, repels the objection founded upon the obligation libelled on being a fraud alleged to have been committed on the creditors of the bankrupt, Love, in respect the document libelled on is an obligatory one signed by the defender, a third party, who was neither sequestrated nor bankrupt, and was entitled to come under any obligation he pleased; and in respect his paying the sum contained in his obligation will noways prejudice Love's bankrupt estate, but rather the reverse, by inducing a party to agree to the composition who otherwise

BUNTEN.

Triennial prescription-Oath, construction of.-0
stances in which oath held affirmative of the refer
THE pursuer, as sole accepting trustee and exe
her deceased husband, James Ferguson, grocer an
merchant in Glasgow, sued the defender for £28
for goods sold and delivered per account, comm
12th August, 1851, and ending 15th November
The defence was prescription. In his depositi
defender said: I see the account appended to th
mons. A copy of the same account was handed
in the year eighteen hundred and fifty-three by t
Mr Ferguson, the pursuer's husband. I stated
jection to the account at that time, nor, to my kno
did I do so afterwards.
I know the pursuer.
Vincent Street, Glasgow, where I am employed.
seen her two or three times in my father's of
she first called there, she did not hand to me, no
see her in possession of any account. I do not re
who was present, although some third party, a
the office, must have been there, nor do I re
what pursuer said to me. I swear that I don
what her object was in calling, although I have
within the last two years.
repeatedly in said office. I think said calls we
I left Scotland in 1
went to Australia, and I did not return unt
Interrogated-Did you say, on one of these
Tut, tut, that account (meaning an
similar to the present) my father should have p
ago," or words to that effect?

pursuer,

Depones-I do not recollect. I never said to that I had been at Partick trying to get money said account, but had not got it. I used no lan lead pursuer to understand that such had been t I don't recollect on any occasion when my fat present in the office, and when I took my hat on the pursuer's entrance. My father never spo about said account since my return to Scotlan owing said account when it was handed to me in 1853. When I left Scotland for Adelaide on that year, I left a note of all the accounts then me, the account in question being one of them,

were all paid. Said note or list I left with my mother. My mother died during my absence from this country, and prior to 1857. My reason for saying the accounts were paid was, that I never was asked for payment of any of them afterwards, although I had dealings with the parties subsequent to my return home. I saw no discharged accounts which had been got by my mother relative to said affairs. Among parties to whom the bove accounts were due, and with whom I resumed dealings after my return, I specify Burgess, tailor, Queen Street, Glasgow, now retired from trade, and Campbell, boot maker, Queen Street there, but I cannot rry the particulars as to others in my memory. I not specify the amount of the accounts in said list, but I am sure they exceeded £100. I did not hand my other the money to pay them, but she had sufficient funds to do so, i.e., funds of her own, or my father's. Per cariam, I was born in August, 1829. My mother had been in the habit of paying debts of the description the account sued for down to the date at which I left Setiand. Thereafter the Sheriff-Substitute pronounced the fol- where such agent had funds of the debtor sufficient for the bring Interlocutor:

accounts included in the said note afterwards, "although he 2d, that his "mother was in the habit of paying debts of the had dealings with the parties subsequent to his return;" and, description sued for down to the date" when he left Scotland. It will be remarked not only that the defender gave his mother no money to pay the account in question, but that he admits he never saw any discharge or receipt among his mother's papers after her death, and he does not pretend that he was ever informed, either directly or indirectly, that she had paid the account. Besides, she had no funds of the defender's to pay the account although she had sufficient funds note of accounts to have been as the defender states someof her own for the purpose. Assuming the amount of the where about £100 altogether, then the pursuer's account, which comes to £28 10s id, would form more than a fourth of the whole, and the mere fact that after his return home in 1857 he had dealings with other parties who were included in this note of his creditors, without their making any claim on him for his old accounts, is a very slender circumstance from which to conclude that the pursuer's large account was paid, especially as the defender can only specify two tradesmen to whom the remark is applicable.

Having considered the deposition emitted by the defender,
of process, or reference by the pursuer to the defender's
and whole process, and heard parties' procurators
ren, Finds that the account libelled was incurred by the
ader to the late James Ferguson, whose sole accepting
tee and executrix is the pursuer: Finds that a copy of
account was handed to the defender by the said James
son in the year 1853, at which date the defender was
reting-owing the amount thereof: Finds that the defender
to Australia in the course of the same year, and did not
to this country until the year 1857: Finds that the
der has not paid the said account, nor furnished money
any other person to pay the same for him: Finds that the
stances deponed to by the defender as to his belief that
id account was paid by his now deceased mother are
cient to warrant the conclusion that the said account
paid: Therefore, Finds the oath affirmative of the refer-
and decerns against the defender in terms of the con-
s of the libels: Finds the pursuer entitled to expenses;
an account thereof to be given, and remits the same
en lodged to the auditor of Court to tax and report.
NOTE.-The statements by the defender in his oath, that he
not resting-owing the sum sued for, is a mere opinion,
ch, however honestly entertained on his part, is immaterial
the facts to which he depones import in law a different con-
on. In this case the defender swears that he is not
ting owing the account in question, but the Sheriff-Substi-
has come to a different conclusion.

The principle and practical effect of the triennial prescrip-
are now understood. When open accounts of the nature
that here sued for have incurred the triennial prescription,
presumed that such accounts have been paid, and the
umption can only be disproved by the writ or oath of the
der. Here the pursuer is compelled to have recourse to
defender's oath. Now the defender admits the constitu-
of the debt.
He admits that the account was rendered
him in 1853, and that it was resting-owing by him at that
He admits, farther, that he has never paid it, nor
Pany one else money to pay it for him. Had the case
ded there it could not be disputed that the pursuer had
ed her case by the oath.

at a question of considerable difficulty arises on the lications or additions made to these admissions by the er. He explains that after the account was rendered him as above, and in the course of the same year, 1853, he this country for Australia, where he remained till 1857, that before his departure he left "a note of all the ants then due by" him, “the account in question being with his "mother." He adds, that these accounts were paid; but he admits that his only reasons for saying so re, lat, That he never was asked for payment of any of the

The Sheriff-Substitute knows no case where such circum

stances as those adverted to have been held to warrant the
He is
opinion that an admitted debt had been discharged.
well aware that where a debtor swears that he gave funds to
his ordinary agent, or factor, or servant to pay a debt, or

purpose, and was told so to apply them, the debtor will have
the benefit of the triennial prescription if he swears that he
was informed by his agent that the debt was actually paid.
But the present case is far different from that just supposed.
He never paid the debt, he did not give his mother money to
pay it, she was not his representative in any proper sense,
and she never even said she had paid the debt. It is thought,
therefore, that the defender has not got rid of his admissions
that he owed the debt and has never paid it.

As to the long delay, nearly ten years, between the incurring of the account and the raising of this action, it may be remarked that from 1853 to 1857 the defender was abroad, and that the defender is suspiciously forgetful as to the period when the pursuer first began asking him for payment after his return home; and it is not easy to tell the time at which the pursuer first began to press for payment. The pursuer has, however, exercised a wise descretion in not asking for interest

on the account.

This Interlocutor was appealed, and after debate the Sheriff pronounced the following judgment:

The Sheriff having made avizandum with the debate, and considered the deposition of the defender and whole process, dismisses the appeal, adheres to the Interlocutor appealed against, and decerns: Finds the defender liable in additional expenses; allows the account thereof to be added to the account of expenses found due by the Interlocutor appealed against, and remits the same, with said other account, to the auditor to tax and report.

NOTE. After the expiry of the three years, there is no presumption that such accounts as that now sued for have been paid; there is simply a change in the mode of proof. During the currency of the three years, the pursuer might prove his case by parole evidence, but after the expiry of that period he is restricted to the oath or writ of the defender.

In this case he has resorted to the defender's oath, who then is the pursuer's witness. The constitution of the debt is clearly proved by the oath, and the only question is as to its subsistence. Upon this point the deposition of the defender is that he left a note of the accounts due by him, when he went to Australia in 1853, with his mother. He does not state for what purpose he left this note with her, but it may be inferred that he did so for the purpose of her paying the account. He says that he gave her no money to pay it, but that she had money of her own or of her husband's. He does not say that she undertook and agreed to pay the account, nor that she did pay it, but he draws an inference to the effect that the account must have been paid because he "never was asked for payment" of any of the accounts of which he gave her a note. Now this deposition is not sufficient to discharge the defender; nay, farther (and it is necessary that it should go this length), it is sufficient to prove the subsistence of the