NOTE.-The Substitute has listened to a very able argu. ment on both sides, and though very much ingenuity was shown in attacking the by-law of 1865, the Substitute, in the first place, feels that he cannot exercise the power of setting aside an ex facie Act by legislative functionaries, and endorsed by the Secretary of State, because of mere alleged latent defects against their Act. It was not disputed by the defender that the by-law of 1865 is in all respects regular under the statutes. But the plea set up for him is that the Commissioners having, under the Acts 1862 and 1863, exercised their powers, and the Secretary of State his authority, both have exhausted their powers, and are functi officiis. The bylaw of 1863-64 must either be a good Act or a bad one. If it is good, then it rules; if bad, it is a nonenity, and has no legal existence. It was admitted on both sides to be funditus bad, and therefore the Commissioners had exercised no vital power, and that power which was originally inherent in them was revived, or rather continued, by the Act 1863, but especially and more comprehensively by the Act 1864. Powers cannot be held exhausted until legitimately exercised. This has been well illustrated by many decisions as to precepts of sasine, which are held to exist until authoritatively exhausted, and that which is conceded to a private party and his precept surely cannot be withheld from legislative func

tionaries.

The defender's solicitor mentioned his intention to appeal to the Sheriff. It is not for the Substitute to decide on the competency of such appeal. But he may be allowed to doubt its competency, and if his doubt be realised, the defender will run great peril for breach of the order of Court enforcing the by-law. It may also be of some consequence to state that, from a communication he had with the Sheriff, he understands his views to coincide with his own as to the validity of the by-law of 1865; and that he is further confirmed in the same opinion by a conversation he had with the SheriffPrincipal of one of the counties which have jurisdiction to enforce the same by law on the Tay.

(Initialed) H. B.

Note by ReporTER.-The defender's agent marked an appeal to the Sheriff-Depute, but on the second day after he withdrew the same, under reservation of his right to appeal to the Circuit Court of Justiciary, or to adopt other competent legal proceedings; he thereafter entered an appeal to the Circuit Court of Justiciary, but the same was intimated to the pursuers a day too late to be heard at the present Circuit, and it must now stand over till the Court meets in spring. Act. WM. BLAIR.

SEPTEMBER, 1865.

Alt. J. M. HONEY.

SHERIFF SMALL DEBT COURT, PERTHSHIRE

PERTH.

(SHERRIFS E. S. GORDON AND BARCLAY.)

ALEXANDER MURRAY V. GEORGE BRUCE. Process-Title to sue-Sale-Bankruptcy.-One of the parties to a bilateral contract of sale became bankrupt, and was discharged without a composition. He subsequently acquired from the trustee on his estate all his right in the contract, and raised an action against the other party to enforce implement of it-Held that the bankruptcy had put an end to the contract, and that he had no title to sue.

case:

Bruce subscribed to Murray for a certain print for which £5 was to be paid when delivered.

Murray became bankrupt, and his estates were sequestrated. Bruce ranked for, and drew, a dividend on a debt of £11.

Murray got his discharge, but not on a composition, so he has not been re-invested in the estate, which is so far still in the person of the trustee. But Murray had been discharged of all debts due by him previous to the date of the sequestration.

Murray had, by a transaction with the trustee, bought the stock or assets of the estate, including the subseription lists for prints.

Murray now sued Bruce for £5, offering the prints in return.

The bank

Bruce denied the title of Murray to sue. rupt, under his transaction with and transfer from the trustee, had no further right than was previously in the person of the trustee. The trustee could not have prosecuted the defender for the £5 on offering the print in return. The contract was bilateral. Murray bound himself to deliver the print. Bruce thereon engaged to pay the sum subscribed. But the sequestration put an end to the obligation on the bankrupt. Had the trustee been sued by any of the subscribers to deliver the print, his defence would have prevailed that the sequestration had superseded the obligation on the bankrupt, and the subscribers could only rank for damage for non-delivery, just as the bankrupt could have ranked on the estate of any insolvent subscriber for the price on delivery of the print, or for damage for not taking delivery. A contract must be binding on both parties, or neither. There was also the specialty in this case, that had the trustee sued Bruce, he could have pled compensation on his claim in amount greater than the price of the print.

The pursuer pled that the sale was a postponed or contingent one, and pended until delivery of the print; that the delivery of the print, and payment of the price, behoved to be unico contextu, and only emerged after the discharge of the bankrupt, and his acquiring from the trustee a right to the subscription lists, whilst the debts due by the bankrupt to Bruce were discharged under the sequestration.

From the importance of the case, as involving several similar claims, the Substitute adjourned the case to be heard before the Sheriff and himself. After a full hearing, the Court sustained the pleas urged for the defender, and discharged him from the claim.

SEPTEMBER, 1865.

SHERIFF COURT, RENFREWSHIRE-GREENOCK. (SHERIFFS FRASER AND TENNENT.)

ROYAL BANK OF SCOTLAND v. ADAMS and Others. Poinding of the Ground-Heritable Creditor-Competition.-Two heritable creditors raised separate actions of poinding of the ground under their securities. In a

competition, the first bondholder was preferred, although the second bondholder had executed the first completed poinding of the ground.

THIS was an action of multiplepoinding at the instance of the Royal Bank, holders of the fund in medio, against Miss Nancy Adams and others, claimants. The fund consisted of the rents of subjects belonging to Anstruther, over which the deceased Robert Dixon held a first bond, and Adams a postponed bond. On 11th February, 1862, Dixon served a summons of poinding of the ground, but before the poinding was executed, Adams, between the 18th and 22d February, raised and executed a completed poinding of the ground. The rents were amassed in the Royal Bank, and the Union Bank being a creditor of Adams arrested in the hands of the Company. Dixon died, but his heir, Robert Dixon, appeared by his tutors, Mrs Alice Simpson or Dixon and others, and lodged a claim, as did also the Union Bank by their manager, James Robertson. A joint-minute of admission by the parties was lodged, and thereafter the Sheriff-Substitute pronounced the following Interlocutor:

Greenock, June 7, 1865.-The Sheriff-Substitute having heard parties' procurators on the whole cause, and considered the joint minute of admission for the parties, Finds it admitted that the claimants, Mrs Alice Simpson or Dixon, and others, tutors of Robert Dixon, hold on heritable security over the lands mentioned in said minute prior in date, and therefore preferable to that held over the same lands by Miss Nancy Adams, the first mentioned security being dated the sixteenth and ratified the twenty-second November, 1859, and recorded on the fourteenth December of the same year, while the second security is dated the nineteenth and recorded the twentieth September, 1860: Finds that the first completed poinding of the grounds was executed by Miss Nancy Adams upon the eighteenth and twenty-second and intervening days of February, 1862, being prior in date to the poindings of the grounds executed by the deceased Robert Dixon, and the claimants, Mrs Alice Simpson or Dixon, and others: But finds that, before Miss Adams had executed a completed poinding of the ground, which she did on the above mentioned dates-from the eighteenth to the twenty-second February, 1862-the said deceased Robert Dixon being the prior and preferable landholder, had, prior to the eleventh of February, 1862, the date when his summons was served on the tenants, judicially asserted his preferable right by raising a summons of poinding of the ground, and that the same was followed forth without any undue mora on his part: Therefore, finds in point of law that the poinding of the ground executed by the said deceased Robert Dixon is preferable to that of Miss Adams, through whom the claimant, James Robertson, claims, ranks, and prefers the said Mrs Alice Simpson or Dixon, and others, primo loco, on the fund in medio, and ranks and prefers the said James Robertson secundo loco in said fund: Finds the said Mrs Alice Simpson or Dixon and others entitled to expenses as against the said James Robertson; allows an account thereof to be given in, and remits the same to the auditor of Court to tax and report, and decerns.

13 S. and W., p. 237), the latest and ruling decision on this point, that the heritable creditor possesses a real right in the moveables, as accessories of the land, and that the rights of heritable creditors competing with each other are not to be determined by the priority of their diligence, but that a preferable creditor is entitled to make the real right available as in a question with a postponed creditor, if he only does so debito tempore, and without undue mora. As the prior creditor had here raised his summons of poinding of the ground before the second creditor had executed a completed poinding, there does not seem to have been any undue delay on his part in using his diligence. (Initd.)

H. L. T.

Robertson appealed, and the Sheriff, after hearing parties, pronounced the following Interlocutor, adhering:

Edinburgh, 1st September.-The Sheriff, having considered the whole process, and heard parties' procurators on the appeal for the claimant, James Robertson, dismisses said appeal, and adheres to the Interlocutor of the Sheriff-Substitute appealed against: Finds Mrs Alice Simpson or Dixon and others, entitled to additional expenses, and allows the same to be added to the account of expenses already ordered to be lodged, and decerns. Two words delete. (Signed) PATRICK FRASER.

NOTE. The competition here is between the Union Bank, a creditor of Nancy Adams, who was a creditor of Anstrather's, and Dixon, also a creditor of Anstruther's. Both Dixon and Adams executed a poinding of the ground as against Anstruther, and the Union Bank found upon Nancy Adams' poinding. Now, what right have the Union Bank to found upon this poinding? They have no assignation to the decree; but they found upon an arrestment in the hands of the Royal Bank, as transferring to them Nancy Adams' interest under the decree. Has it this effect in law? This is a question which the parties did not argue, and which (looking at the opinion formed by the Sheriff on the other point) it is unnecessary to decide. The arrestment might be held to have this effect, if the legal effect of a poinding of the ground be to transfer to the poinding creditor the rents in the hands of the tenants in the same way as a decree of forthcoming would do. But, on the other point, the Sheriff concurs with the Sheriff-Substitute in holding that the claim of Dixon, founded upon the real right first in date, must be preferred. This point has never been decided by the Court of

Session.

In the case of Smith v. Thomson, 26th January, 1838, 10 Jurist, 229, Lord Corehouse stated that the question was so grave and difficult that it should be argued before the whole Court. It was not decided in the case of Campbell v. Paul, because the trustee in the sequestration in that case did not hold the place of a creditor in a real right, having a decree of poinding of the ground. Lord M'Kenzie in Campbell's case, and again in Smith's, gave his opinion that the first real creditor, though with the last summons of poinding, must be preferred.

Professor Bell was of the same opinion (2 Bell Com., p. 39), and so was Professor More (Notes, p. 211). So far as authority goes it is in favour of this view, and the reasons for it are to be found in Lord M'Kenzie's opinion in Campbell's (Initd.) P. F.

case.

Agents for Union Bank-LADE & COWAN, Agent for Dixon-CRAWFORD MUIR,

24TH AUGUST, 1865.

SHERIFF COURT, AYRSHIRE-KILMARNOCK. (SHERIFFS N. C. CAMPBELL AND THOMAS ANDERSON.) EGLIN BROTHERS & COMPANY v. JAMES DICKIE. Sale-Proof-Onus-Delivery.-In an action for payment of the price of goods supplied to the defender, the latter averred that one bale of the goods was disconform to sample furnished by him to the pursuer-Held that the onus of proving said disconformity rested with the defender. Opinion, that even had one parcel been objectionable, the defender was not entitled to refuse delivery of the rest of the goods.

THIS was an action raised by the pursuers, leather merchants in Glasgow, against the defender, a shoemaker in Kilmarnock, for the sum of £34 98 10d sterling, for various articles of leather sold by them to him. The defender admitted that he gave the pursuers an order for certain goods of the nature of those specified in the account libelled, and that the goods libelled on were duly sent to him, but that he refused to take delivery thereof in respect that the principal item in the account, viz., one bale of butts, was not in conformity with the sample which he had exhibited to the pursuers-pursuers having specially agreed that the bale of butts was to be in conformity with said sample; and he stated that, in consequence of the difference of quality, he had returned the whole of the articles. A proof pro ut de jure and conjunct proofs having been taken, the Sheriff-Substitute pronounced the following Interlocutor and Note:

Kilmarnock, 26th July, 1865.-The Sheriff-Substitute having heard parties' procurators, and considered the closed record, proof, on both sides, with the productions in process, Finds the action concludes for the price of a quantity of leather of various sorts, as per account appended to the summons: Finds the defender admits he ordered said goods from the pursuers, and received delivery on the 27th January, 1865: Finds the defender immediately returned the whole of said goods, on the ground that those comprised in the first item of account, one bale of butts, "were of inferior quality and disconform to order:" Finds that the defender admits that the butts he so ordered were to be Draper's butts, of the best quality: Finds it proved that the said bale of butts was Draper's best quality of foreign butts: Finds that native butts could not have been sold in January last at anything like the price charged in the account sued for, and that though foreign butts were not specially mentioned when the contract was between the parties to the present action, the one a leather made, it must be held that this was understood in a question

merchant and the other a shoemaker: Therefore decerns against the defender in terms of the conclusions of the sumnons; allows the pursuers to give in an account of their expenses, and remits the same, when lodged, to the auditor to tax and report, and decerns.

(Signed) THOMAS ANDERSON. NOTE.-In his defences the defender avers that the bale of outts he ordered was to be of the same quality as a sample of eather which he exhibited to the pursuer William Eglin. He also says the same in his evidence, and in this he is corroborated by his brother, the shop-boy, and by his wife. But no sample has been produced, and no attempt made, to rove that the bale returned was different from it. One ould have understood the pursuer carrying a sample, and the lefender keeping it, to make sure the goods on arrival were qual to the sample; but it would be an unusual proceeding or the buyer to produce the sample and say to the seller, inless you furnish me with goods of the same quality, I shall eturn them. If the defender made such a contract, he was ound to produce and identify the sample, and prove that the

In argu

goods sent were inferior, which he has not done. ment, he went the length of maintaining that there truly was no contract of sale; that the goods were merely sent on approval; and that he was entitled to return them if not satisfied with them on inspection. The Sheriff-Substitute holds this is quite inconsistent with the pleas on record, and with the defender's own admission in evidence, that he must have Draper's butts of the best quality. Even if it could be held that the defender was entitled to return the first item of account, the Sheriff-Substitute does not think he was justified in sending the whole back, especially after breaking bulk by cutting up one of the hides in the way he did, particularly when he says he was dissatisfied with the external appearance of the (Initd.) hide before cutting it.

T. A.

The defender having appealed, the Sheriff adhered to the Sheriff-Substitute's Interlocutor, and dismissed the appeal. The following is the Interlocutor and Note of the Sheriff:

Edinburgh, 24th August, 1865.-The Sheriff having, upon the defender's appeal, supported by his reclaiming petition, considered the closed record, proof, and whole process, adheres to the Interlocutor appealed from, and dismisses the appeal. (Signed) N. C. CAMPBELL.

NOTE.-The defender admits that he ordered from the pursuers Draper's butts of the first class," and that he did not specify "native butts," for he had "no objection to the butts being foreign." This is his own statement in deposition. There was therefore no contract for native butts as distinguished from foreign ones. Accordingly the defence against payment of the contract price is not that the defender was not supplied with Draper's butts of the first class. It is this, that the order was coupled with these conditions-1st, that the butts should be according to a sample exhibited to the pursuers when the order was given; and 2d, that unless entitled to return them; and the plea founded thereon is, that the goods were satisfactory to the defender he should be the butts being neither according to sample, nor suitable to the defender's trade, he was entitled to return them as he did, and is not liable for the contract price.

Now, 1st. In regard to the alleged sample, it does not ordered-viz., Draper's butts. appear from the evidence that it was a sample of the thing Neither does it appear that the goods were rejected because they were not conform to sample, for they were never compared with the alleged sample, and there is no reasonable evidence of inferiority to it. In short, there is no sufficient evidence to support the defence that the goods were purchased on sample, and were disconform to the sample, and the defender himself seems to admit in his reclaiming petition that he has failed to prove inferiority to sample.

2d. With respect to the defence that the butts were "un. suitable for the defender's trade," and that he was therefore entitled to reject them, there are various and sufficient

answers.

(1) There is no proper averment that the pursuers agreed to supply butts "suitable to the defender's trade."

what the defender himself has sworn to have been the agree (2) Such a condition would appear to be inconsistent with ment. He says he ordered "Draper's butts of the first class," and that they were to be "equal to sample, and returnable if not equal to sample." Can it be reasonably supposed that the parties agreed that the defender should be entitled to return the butts, although they were both "Draper's butts of the first class," and "equal to sample," if the party ordering them should think, on receiving them, that they were not "suitable for his trade?" The Sheriff thinks not.

And accordingly, in the third place, the defender himself, though twice in the witness box, did not venture to say on oath that this was a condition of the agreement; and there can be no doubt that he would have said so if it had been true.

And lastly, on this point the Sheriff can find nothing in the proof or correspondence to show that it was either agreed that the butts should be to the defender's satisfaction, or suitable to his trade.

On the whole, and without going into further detail, it is thought that the defence has wholly failed. N. C. C. L*

(Initd.)