wards likewise blank endorsed by the claimant; but the knowledge that the furniture belonged to the pursuer: Finds that said articles were thereupon conveyed by Cunningham's porter to the auction rooms of the defender, in Argyle Street, where Kinloch shortly afterwards followed, and presenting the invoice to the defender, the latter, on Kinloch's request, made him an advance thereupon of £11, taking the receipt containing the power of unrestricted sale therein written, No. 6/1; and the defender received into his possession, and he still keeps the effects: Finds that Kinloch, on obtaining the money, returned with it to Cunningham, and handed him part thereof, and in the course of that evening Cunningham disappeared from Glasgow, and has not since been heard of, and his place of business was closed next day: Finds that while there is some evidence that Cunningham was, at the time of said transaction, indebted to Kinloch for the price of a Carron grate, which had been sold at 23, the price of a fly-wheel, which had been sold at 33 6d, and the price of an old engine, which had been sold at 50s, and for certain services alleged to have been rendered as a clerk, yet the true extent of the claim has not been established, and no account of it had been rendered to Cunningham before his flight, and except by Kinloch's own testimony, there has been no evidence adduced to show that the latter did purchase the pursuer's said effects: Finds, therefore, that the pledging thereof for an advance was an act of conversion thereof, done by Cunningham through the instrumentality of Kinloch: Finds that the pursuer has not proved that the defender was aware that said effects were her property, and it has been shown that he made the advance in perfect good faith, and in the ordinary course of his business: and, in these circumstances, Finds, in point of law, that as the pursuer had voluntarily delivered the furniture in question to Cunningham, with powers of sale, and as he thus acquired the lawful possession thereof, the defender, in dealing with him through Kinloch, and advancing said sum on the security thereof, is not bound to make restitution without recovering payment of his advance and interest; therefore recalls the interim interdict, refuses the prayer of the petition, and Finds that the pursuer is only entitled to delivery on payment of the advance and interest: Finds the pursuer liable in expenses, allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns. CUNNINGHAM & Co. were auctioneers, of which firm David Cunningham was the sole partner. Kinloch, a clerk in the employment of Cunningham & Co., was in arrears with his salary. To pay these, and obtain some money for himself, Cunningham made a sale of certain oods which had been consigned to him for sale, and ese goods Kinloch resold or pledged for £11. Cun-ston v. Scott, 14th Nov., 1818, F.C. Cunningham, it has ingham, immediately after the sale, left the country; nd thereafter the owner of the goods, finding out here they were, raised this action against Hamilton, whom Kinloch had sold and pledged them, for resti tion. After the record had been closed, the Sheriff-Sub- NOTE. The owner of goods of which he has been deprived by theft is entitled to reclaim them even in the hands of an innocent third party, who may have purchased them in bona fides; Bell's Principles, sec. 527-" but if one in lawful possession of a thing sell it to another without notice, the sale is good," Ib., sec. 529. And that lawful possession protects also a party who makes advances on them, which the true owner must repay before being entitled to restitution. See Colquhoun v. Finlay & Co., 15th Nov., 1816, F.C.; Ecle & Bond v. Finlay, 15th May, 1818, F.C.; Johnbeen seen, was the pursuer's agent, to whom she entrusted the lawful custody of her goods; and as he committed a fraud, it is more reasonable that she should suffer the loss which was thereby occasioned than the defender, who knew nothing of their relation, nor of the circumstances. At the same time, as it is sufficiently plain that the sham transaction between Kinloch and Cunningham was only a scheme concerted to procure the advance, the pursuer will be entitled, on satisfying the defender's demand, to recover from him her property; and he will be to blame if, after this litigation, he does not afford her a reasonable opportunity of doing so. The pursuer appealed, and after a hearing, the Sheriff pronounced the following judgment: Having heard parties' procurators under the pursuer's ap peal upon the Interlocutor appealed against, proof adduced, Note, Adheres to the Interlocutor appealed against, and disand whole process, for the reasons stated in the subjoined misses the appeal. NOTE. The facts of this case are extremely simple, and so far as they bear upon it are shortly these:-The pursuer having some articles of furniture to dispose of, took them to one Cunningham, an auctioneer, and left the furniture with him in his auction rooms, with power to sell the same either by public sale or by private bargain on her account. stead, however, of carrying out the trust thus reposed in him, In NOTE.-This is an application for aliment under the Act of Grace, 1696, c. 32. It is opposed by the incarcerater The applicant is incarcerated for £2 of modified penalties, with £2 of expenses, under a conviction obtained before the Sheriff at the instance of "William Blair, writer in Perth, authorised to prosecute in virtue of the Act of Parliament." These penalties are for contravention of the "Salmon Fisheries (Scotland) Act, 1862," sections 9 and 11, and "The The offence is "fishing Tay Fisheries Act, 1858," sect. 4. in close time." The question is one of public importance, and is attended with considerable difficulty. Hitherto such convictions have been treated as civil, to the effect of the convicted parties, when imprisoned, receiving aliment from the incarcerators. In Perth, the statutory consignation of 10s, required by Act 6, Geo. IV., c. 52, was usually made, and for several years the prisoners applied and obtained the benefit of aliment under the Act of Grace without opposition. Latterly Mr Blair, the clerk of the board, made an arrangement with the keeper of the prison to refund the expense of aliment at the usual rate without putting prisoners to the trouble and er pense of making separate applications. In the present case he has not made the statutory consignation, and be no insists that the prisoner is not entitled to aliment as a ciril debtor, but that he falls to be alimented from the prison of public funds as a criminal. As the case was one which obviously interested the prison board, the Sheriff-Substitute ordered notice to be made to them that they might appear for their interest, but which, after a meeting, they have declined to do. As the prisoner had also separate interests, an agent was assigned him, and the case has been very ably argued on both sides. An im portant question is also involved, whether the keeper of the prison can receive such prisoners without the statutory ce signation of the alimentary fund? Whether he refuses to receive them unless with such consignation, or receives them without the alimentary fund, he is exposed to responsibility. And the question therefore is important in that view, so as to regulate future procedure. In support of the application, there stands the unanimous and unreversed decision of the Supreme Court, 16th February 1837-Robinson v. Colins, Court of Session Cases, Vol. XV. p. 572. That case was very maturely considered upon printed informations, and although the judges did express difficulty, yet following upon a long tract of decisions to the effect that where a fine was awarded to a private party although for a criminal offence, they unanimously found was a mere civil debt, and the person imprisoned for paymen at the private instance was entitled to aliment under the Ad of Grace. Accordingly, in the case of Robinson the Court affirmed the judgment of the magistrates of Aberdeen, allow ing aliment to a prisoner under the conviction for taking salmon in close time-the identical offence for which Malloch the petitioner, is now suffering imprisonment. It will b observed that Robinson, the prosecutor, was under-baili pointed “under section 10 of the Statute by the proprietors salmon fisheries in the river Doveron' -a title quite logous to that of Mr Blair in this case. o far from the decision in Robinson's case having been st, it receives confirmation by the more recent unanimous sion by the Judges in Exchequer, 1856, The Advocatetral v. The Magistrates of Inverness, 28 Jurist, p. 303. hat case a man was imprisoned for killing game without rtificate, whereon he incurred the penalty of double assesst, for non-payment of which he was imprisoned at the ince of the Crown. The Court unanimously affirmed the ment of the Magistrates of Inverness, allowing the man ent as a civil debtor. No doubt this man was not imned expressly on a conviction for the penalty for shooting out the license. Yet the assessment of double duty was ly of a penal nature, founded on the contravention of the te, and yet it was held to be a civil debt. le argument of the incarcerator for immunity from the ation to aliment was founded on a recent decision of the t of Justiciary in a case which went from this county. as there decided that a party prosecuted under the SalFishing Statutes was not entitled to offer himself as a ass. The case is that of Blair v. Mitchell & Malloch, 9th 1864. As reported in the Jurist, Vol. xxxvi., p. 714,it be observed that the case of Robinson was not mentioned ty of the Judges, or any observation made by any of that it had been ill decided, and was no longer to be an authority, and therefore it cannot be said that Mits case upset the authority of the well-considered decision binson. The question arose under the Evidence Act, ict., c. 20. Previous to that Act no party in any cause, or criminal, could be a witness for or against himself. Act removed this objection with the exception "of any n who in any criminal proceeding is charged with the mission of any indictable offence, or any offence punishable ummary conviction." The question, therefore, was simply of admission of evidence, and to decide which it had to scertained whether the action was one purely of a civil re or fell within the exception of a prosecution for offence. Sheriff Substitute held that the case was of a mixed char , but partaking much more of the civil than of the nal element. He was led to this conclusion, Firstly, By act that the offence was one merely malum prohibitum not malum in se, although he was quite aware that this >ction, perhaps unwisely, has not of late been allowed so as formerly to prevail. Secondly, The complaint was einstance of a private party, and the penalty did not go * public funds but to a proprietary body. Thirdly, That onvicted party did not require to be present when the nent was given, and he had fourteen days within which aight satisfy the award. Fourthly, That the penalty ded could be recovered by poinding of the defender's ables-a mode of punishment unknown in strictly criminal and, Lastly, That when imprisoned, it had been solemnly ed that he was entitled to the benefit of the Act of e, clearly applicable only to civil prisoners. The Sube is now aware that in the hurry of the trial he placed ase on the record under the somewhat unmeaning title e quasi civil, but his meaning he fully expressed orally. neant that the case was not strictly criminal, but only a suit for a civil penalty founded on a quasi delict. The Subte of course respectfully bows to the judgment of the rity of the Court finding that in such a case a defender canffer himself as a witness, but he refrains from carrying that ion one degree farther, so as to set aside the unanimous solemn decision of the Supreme Court finding a party, r the same circumstances as the applicant here, entitled liment under the Act of Grace. The Substitute has ys felt the danger of local magistrates extending the e of decisions so as to include other extraneous matters pparent analogy. In this case it is obvious, if he was to mine inferentially on the recent case given by a majority e Judges, and to refuse the applicant aliment, it would irectly to reverse the unanimous decision in the case of nson. e incarceration of Malloch is both for penalty and costs. it was unanimously proved that a party found liable in , in addition to a fine, for the perpetration of a criminal ce, charged at the instance of the Fiscal for the public eat, could not be summarily imprisoned to enforce pay ment of costs (15th July, 1843, Graham, 1 Brown, 570; see, to same effect, 30th June, 1862, Spence, 4 Jurist, 200). Mr Blair very ingeniously argued that there were a variety of matters in the recent statutes which virtually upset the grounds on which the Judges proceeded in the case of Robinson. There can be no question but such exist, and perhaps, when brought under the notice of the same Court as gave the decision in Robinson's case, they may see their way to introduce another rule. But the Substitute repeats that such procedure on the part of a local Judge would be rash and unconstitutional. It might lead to the result that in one county a salmon poacher would be held a civil debtor, entitled to aliment from his incarcerator, and, in the next county, be classified as a criminal, supported on the same fund that sustains the thief. The Substitute may shortly notice the pleas urged by the incarcerator. 1st. It was pled that Collins (in Robinson's case) was incarcerated on a conviction under the Act of George IV., whereas Malloch is in prison on a conviction under the Act, 1862, and the Tay Act, 1858. The answer is, that the Act of George IV. is not repealed by any subsequent Act which merely make farther provisions for the regulation of fisheries, and the removal of obstructions, and the prevention of illegal fishings. 2d. It was pled that, under the Act of George IV., any person may prosecute as informer, and who might apply the penalty for his own benefit. But under the subsequent statutes the clerk of the district board is first mentioned as the prosecutor, but with the addition of " any other person;" and where the clerk prosecutes the penalties are to be paid over to the district board towards defraying the expenses incurred in carrying into execution the provisions of the statute, and where an informer recovers, then the Sheriff or Justice may direct the application. But in that case the sum may be given to reward the diligence of the private vindicator of the statute. The answer to this is obvious. The character of the offence is nowise changed by that of the prosecutor, nor the final application of the penalties. It never can be supposed that the same offence is criminal when prosecuted by one party, and civil when the prosecution is at the instance of a different party. One thing is apparent, that the Fiscal is not once mentioned in any of the statutes, nor can the penalty be applied to the public funds which go to aliment criminal prisoners. 3d. It was pled that, whilst under the Act of George IV. fourteen days was imperatively given to the convicted party to satisfy the conviction before execution could proceed either against his person or property, by the recent Act, 1862, offenders under one section (27), for the special offence of night salmon poaching, who are convicted in the penalty, must make instant payment, failing which, immediate execution by imprisonment is permitted. It is also argued that, whilst under the prior Act, the case might be tried before the Court of the county of the offence, or that of the domicile of the offender, in the latter Act the former is only stated, which, it is said, recognises the locus delicti. But the general answer applies to all these observations, that the character of the offence remains undisturbed; and specially, that both statutes are still in observance, and the Act, 1862, gives still more a civil aspect to the nature of the penalties, by enacting that they may be recovered by ordinary action, or in the Small Debt Court of the Sheriff (section 31). One exceedingly strong argument will be found in the 27th section of the Act above noticed. Night poaching is thereby expressly declared to be "a criminal offence," and the offender is deprived of the privilege of fourteen days to pay the fine, but is subject to immediate imprisonment: this exception clearly implies that the other offences under the Acts are to be still dealt with as civil debts. To hold that all offenders under the Salmon Fishing Acts are now to be held criminal, would lead to extraordinary results. Taking an unclean salmon-nay, even presenting it on the table of hospitality— leaving a fishing boat or net on the beach-using salmon roe for bait-throwing sawdust into a river, and many other offences the most trivial, must henceforth be held as criminal, and the unfortunate offender dealt with in prison in the same class as the most abandoned criminal. In addition to these pleas set up by the incarcerator, the Substitute may mention two other points worthy of con sideration. First, In the Prison Act, 1860, there is a definition of civil and criminal prisoners. The former is specially enumerated, the latter is made to comprehend all other descriptions of prisoners. Civil prisoners are declared to in clude "all those imprisoned for non-payment of civil debts due to subjects." In the present case the penalty is due to a subject. The question remains, Is it a civil debt? A criminal debt is a solecism. The next clause specifies as civil debtors, "prisoners for debts and taxes due to the crown, not being fines or penalties inflicted on conviction of offences." This latter part of the clause no doubt covers this case as being a fine or penalty "inflicted on conviction of an offence.' But it is impossible to disjoin this part of the clause from the leading words which imports that the fine or penalty must be to the Crown and not to a subject. The Substitute may lastly refer to the recent Summary Criminal Prosecution Statute, 1864, for a definition of criminal and civil cases; but so far only as the same is to regulate the Court of Appeal. Under that decision any appeal from the conviction under consideration would clearly be to the Justiciary. But the Prison and the Procedure Acts only regulate the economy of the prison and the appellate jurisdiction, eaving the question of aliment of prisoners quite open. Indeed the Prisoners' Act expressly excepts the aliment of prisoners from the enactments (sect. 76). The incarcerator pressed the seeming contradiction of offenders against the game laws on land being dealt with as criminals, whilst the offenders against the protecting laws of fish are to be dealt with in a more dignified style. The answer is, that a judge has only to administer and not to attempt to reconcile the law. The question as to the right of offenders imprisoned under the Day Trespass Act to be alimented at the cost of proprietors has never yet been tried, and therefore is an open question. Under the Night Poaching Act the conviction is at the instance of the Fiscal, and expressly declared a criminal offence, so there can be no question of the proper denial of aliment. Besides, the pursuit of game generally involves a trespass on land being private property. Game itself forms no distinct estate, but salmon fishings are actual heritable estate, though the fish that pass through the localities are not property until caught. Thus a distinction, however shadowy, may be found to exist between the principles of the two codes of laws regulating game and fish. On the whole, the Substitute, with much consideration, and not a little hesitation, has come to the conclusion that he is bound to follow the authority of the case of Robinson until it is set aside by the same authority as gave it sanction. Notwithstanding all the alterations of form in subsequent statutes, the offence for which Malloch is now in prison is identical in every particular with that for which Collins stood committed. If Collins was held entitled to aliment so should Malloch. The salmon proprietors were quite aware of the right to aliment as recognised in the case of Robinson. If they desired a change of the law, it was easy in subsequent statutes expressly to have declared that offenders against the fishing laws were henceforth to be dealt with as criminals, and not to be entitled to the privileges of civil debtors. Providing for so many alterations of the law, and never once touching this clearly established right to aliment, it must be held that it was not inadvertently allowed to stand as it did. The incarcerator in this case views the recent decision by a majority of the Justiciary Court as a legislative act amending the Fishery Statutes. He argues that the Court, having held that the offence is criminal to the effect of excluding the accused from being a witness, so he in all other points must be strictly dealt with as a criminal. The incarcerator therefore maintained that the offender must now be personally present at the giving of judgment, and therefore he insists that when an accused party pleads not guilty, and an adjournment becomes necessary, he must be committed to prison, unless he finds bail to appear at all future diets. The statutes have no such provision, and the practice has hitherto not been as is now sought to be introduced. Having the Act 1701 in view, and the principles of constitutional liberty and justice, he will be a bold magistrate who will for the first time thus tamper with the liberty of the subject. (See the case of Linton as in this, 30th Nov., 1860, 33 Jurist, p. 37.) It is worthy of remark that the Prison Board has now less interest to contend the matter than formerly. Under a recent rule in Exchequer, all prisoners who stand convicted by the Sheriff are alimented in prison by Exchequer. This, how ever, will lead to this farther anomaly, should the incarcerator in this case prevail, that those convicted of salmon poaching by the Sheriff will have their maintenance in prison defrayed by the national exchequer, but when convicted by Justices, the burden will fall on the prison funds. If the decision in Robinson's case be still held to rule, then it will fall on neither, but on the proprietary, whose property is sought thus specially to be protected. If such prisoners are to be held as not titled to aliment from their individual incarcerators, im equally so should all who are imprisoned for the numer penalties for offences under general and local statutes, ma sued for by private parties for their own individual benefi and not for vindication of public justice and safety. The solicitor assigned to the applicant seems to have a just claim for costs, and should the contention be carried further, after the above clear indication of opinion, his claim ought to be recognised. On an appeal and reclaiming petition, followed with answers (drawn by counsel), the following judgment was pronounced by the Sheriff: The Sheriff, having considered the defender's appeal, with reclaiming petition in support thereof, and answers for the pursuer or applicant, sustains the appeal, recalls the Inter locutor appealed from, dismisses the petition, Finds no erpenses due to either party, and decerns. NOTE. The applicant was incarcerated in virtue of a sentence of the Sheriff-Substitute, pronounced under a complaint at the instance of Mr Blair, writer, founded upon a breach of the Salmon Fisheries (Scotland) Act, 1862, 5 and 26 Vict. The present application was made for an order en Mr Blair, as incarcerator, to pay aliment to the applicant, and the Sheriff-Substitute ordered Mr Blair to pay almas to the applicant at the rate of 6d per day. Against t judgment Mr Blair appealed, and lodged a reclaiming petition in support of his appeal. Before the answers were lolga the period of imprisonment had expired, but the appliant (even if the judgment should have been adhered to) sustained no injury by this delay, as he was alimented by the priso authorities on fully as good fare as he could procure with the 6d. The Sheriff considered the point raised of importance, as involving the question whether the proceedings under the Salmon Fisheries Act are civil or criminal. In the former case, the party sentenced to imprisonment would be enticed to aliment; in the latter case he would not, and the prison authorities would require to aliment him as a criminal prisoner. The Sheriff intimated his opinion to be adverse te the applicant's claim for aliment-first, in respect of the decision in the case of Blair v. Mitchell and Mall, July, 1864, where it was held that a party accused of sa offence under the Salmon Fisheries Act could not give evidence in his own favour, as the Evidence Act excludes from the privilege of giving evidence "any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on sum conviction;" and second, in respect of the 28th sect of the Summary Procedure (Scotland) Act, 27 & 28 Vict., cap which, according to the Sheriff's opinion, includes within definition of criminal the procedure under the 25 and 26 Vict Able answers to the reclaiming petition have been lodg in which every argument which could be submitted in supp of the Interlocutor has been urged; but these arguments not remove the doubts expressed by the Sheriff as to t soundness of the Interlocutor. He, however, delayed nouncing judgment, as he understood there was an appeal the Circuit Court of Justiciary, which to some extent invol this question, and he was averse to pronounce a judg which might have the effect of changing the course of proce ure which has been hitherto followed in this Court in s cases as the present, while there might be different r taken by the Supreme Court. The appeal has now, howes been disposed of, and in the direction of the views express by the Sheriff. He, therefore, does not hesitate to recall 1. Interlocutor which ordered the incarcerator to give alimes: the applicant. The Sheriff will only further remark, tha: thinks the case of Blair cannot be explained upon any ground than that convictions under the Salmon Fisheries A are pronounced in a "criminal proceeding," while the decisi 4 Robinson v. Collins (which perhaps would not now be ported even with reference to the proceedings under that 4) was pronounced with reference to a sentence obtained der a provision in a different statute. The latter case is refore not an authority directly applicable to the case under - 25th and 26th Vict., while the case of Blair rules that ceedings under the latter Act are of a criminal nature. rther, the 28th section of 27 and 28 Vict., cap. 53, appears ettle conclusively (if anything further were necessary) that onviction under the 25th and 26th Vict. is a proceeding of riminal nature, and, if so, aliment cannot be demanded n the incarcerator. 27TH MAY, 1865. SHERIFF COURT, AYRSHIRE-AYR. (SHERIFFS CAMPBELL AND ROBISON.) BRUCE v. SMITH. cution-Witness-Act of Sederunt, 10th July, 1839, c. 15—16 and 17 Vict., cap. 80, sec. 9-1 and 2 ict., cap. 119, sec. 23.-The execution of service of a ordinary summons was not signed by the witness. The execution was objected to as informal. The puruer, by motion, offered to supply the omission, and id, ex proprio motu, get the witness to sign. The heriff-Substitute dismissed the action. On appeal, the heriff-Deputy sustained the execution and repelled the eliminary defences. record was closed on a minute of defence, in which as inter alia stated that the execution was not in terms e Sheriff Court Act, the execution annexed to the nons not being signed by the witness-otherwise the ation was correct. Thereafter a discussion took place motion for the pursuer, at which he stated that he d supply the omission, and the case was continued. rwards the execution was signed by the witness, and De closed record and preliminary pleas, the Sherifftitute pronounced the following Interlocutor: e Sheriff-Substitute having heard parties' procurators on reliminary defence, sustains the same: Finds that the deTs have not been lawfully cited, and therefore dismisses ction: Finds the defenders entitled to expenses and de TE.-Objection is taken to the validity of the officer's tion of citation in this case. When returned by the rit had the signature of himself alone. There was no ribing witness to it. And so it remained at the date of rst calling of the cause on 14th Feb. last, of the minute fences, and of certain further procedure intervening bethe said 14th of February and the 1st current. These dings led to discussion on the merits of the preliminary ce which has been stated to the action. This defence eds upon the ground, which was then true in point of that the officers's execution was without the signature of itness said to be present at the serving of the summons. defect is taken in point of law to invalidate the execution. the last discussion but one the Sheriff Substitute was , in terms of a motion lodged for the pursuer, to authore witness, who was stated to be in attendance for the se, to sign the execution, but this he declined to do, ing it better that the pursuer himself ought to be left to He has accordingly now done so by his his own course, agent obtaining, on the 1st current, the witness' signature to the officer's execution. So standing, the facts and the officer's execution being now assumed to be complete, the Court was asked, in terms of the pursuer's last motion in the case, in effect to sustain it. This the Sheriff Substitute was unable to do, being of opinion that the execution was ab origine null for want of the witness' signature, and that the attempted mode of remedying this defect, after contention taken on the question of its invalidity, was inadmissible. Two things are, by the positive requirement of law, made necessary to constitute a formal and valid execution of citation -the signature of the officer-executor, and the signature of an attesting witness to the fact of service. The signature of each of these parties is enjoined equally imperatively by statute and by Act of Sederunt. The Act 1 and 2 Vict., c. 119, sec. 23, declares that "both shall attest the execution by their subscriptions in common form;" and by section 15 of the Act of Sederunt, July 10, 1839, it is declared that "all executions and returns shall be signed by the officer and the witness who was present at the execution. These are among the conditions, compliance with which, in terms of the said statute, is essential in order to any summons being "deemed to be duly served and executed." Such being the peremptory rule of law on the matter in hand, it was thought that the original informality amounting to nullity, attaching to the officer's execution in this case, admitted not of cure, by the obtaining in the manner before explained of the witness' signature thereto ex intervallo and after actual contention in foro. The pursuer appealed, thereafter the Sheriff pronounced the following judgment: The Sheriff having heard parties' procurators upon the appeal for the pursuer from the Interlocutor of 3rd March last, and considered the proceedings, sustains the appeal: Recalls the said Interlocutor, and in respect that the execution objected to is now signed by the witness therein named and designed in terms of the Act 16 and 17 Vict., cap. 8, sec. 9, Repels the preliminary defence and remits the cause to the Sheriff-Substitute to proceed therein as to him shall seem just. NOTE. It is nowhere stated that the summons was not duly served, or that anything contained in the execution is untrue. The objection is simply this, that the execution is not in terms of the statute 16 and 17 Vict., cap. 80, sec. 9. When this defence was stated, it appears that the execution was in every respect in terms of that act, except that the witness therein-named had not signed it as witness. He signed it, however, after the defence was stated, and as the execution now stands, it is precisely in terms of the statute. The sole question, therefore, is this-does the process fall unless a completed execution is produced before the defence is minuted? The Sheriff thinks not. Service may be accepted by the defender without the intervention of an officer at all, and therefore without an execution. It may likewise be dispensed with or waived. There is no doubt about this, and it seems clear that in any of these cases, viz., the acceptance of, or dispensing with, or waiving of service, the evidence thereof need not be produced before the minuting of the defence. Is there anything then to make it absolutely essential where service is neither waived, dispensed with, nor accepted of, that a completed execution must be produced before the stating of the defence. In answering this question it is to be observed in the first place, that there seems to be nothing in the statute referred to, or in any statute, specifying a time within which the exe cution must be completed or produced, and secondly, the Sheriff is not aware of any absolute rule at common law, or in prac tice. That the summons must be duly served before the defender is bound to compear, unless service be dispensed with or waived, is certainly necessary; but the service and the execution, which is the evidence of the service, are different things, and are regulated by different rules. There are numerous cases in which faulty executions have been withdrawn, and correct ones substituted for them after the defence of no process had been proponed: Begg v. Morton, 7th July, 1744, (Dict. 8345); Maxwell v. Thomson, 10th Nov. 1683, (D. 8341); Cullen's Trustees v. Watson, 2d July, 1825, 4 S. & D., (N. E.), 135; Cameron v. M'Ewan, 4th Feb., 1830, 8 S. & D., 440; Henderson v. Richardson, 23d May, |