1848, 10 D., 1035; and Hamilton v. Monkland Iron Co., 1 Macpherson, 676.

The principle on which these cases were decided was well stated and illustrated by the Lord Justice-Clerk in Henderson v. Richardson, and there is nothing in the Sheriff Court Act above adverted to, to take the present case out of that principle. In all the above cases a new or amended execution was allowed to be put in after the defence of no process was stated; and in all of them the new or amended execution was sustained. It is to be observed too, that the original executions in most of these cases, contained positive errors, which required alteration and correction; whereas in the present case there was a mere omission of a signature, or rather the the delay of a witness to sign the execution for a short time after it was produced in Court. The argument, therefore, from these cases is a fortiori to the present case.

Landlord and Tenant-Extra Rent-Right to Sequestrate-Hypothec.—With consent of his landlord, a farm-tenant sub-let his farm for an increased rent, one half of which was, by the sub-lease, payable to him, the other half to the landlord. The principal tenant applied for and obtained warrant of sequestration for his moiety of the additional rent, and the warrant was executed. The sequestration was recalled on consignation, and thereafter held that the addition to the rent was not in the legal sense rent, and did not confer on the principal tenant a right of hypothec, under which sequestration was competent.

THE pursuer was tenant of the farm of Hillbarns, near Blairgowrie, on a lease for nineteen years from the term of Martinmas, 1856. With consent of the proprietrix (Miss Blair Oliphant), he assigned the lease, for the thirteen years to run thereof, from Martinmas, 1862, to the defender, who then entered into possession. The assignation contained a declaration, that the defender, besides the original rent, should pay an additional rent of £77 11s yearly during the remaining years of the lease—the half of the additional rent to go to the proprietrix, and the other half to the pursuer. In the early part of December, the pursuer, in virtue of a warrant obtained by him from the Sheriff, placed the whole effects on the defender's farm under sequestration for payment of £19 78 9d, as the half of the pursuer's moiety of the additional rent payable at Martinmas last, and in security of the like sum of £19 78 9d falling due at Whitsunday next; whereupon the defender consigned the amount in the Sheriff-Clerk's hands, and obtained a recall of the sequestration. The only question then remaining was, whether a party in the pursuer's position had a right of hypothec for his share of the additional payment?

After a debate on the closed record, the Sheriff-Substitute pronounced this Interlocutor:—

Having heard parties' procurators, and made avizandum with the process, Sustains the defence; assolzies the defender from the process of sequestration: Finds him entitled to expenses; remits the account thereof to the auditor to tax, and decerns.

NOTE. It is impossible to view the pursuer as "heritor" or "master of the ground," or to hold that there exists between him and the defender the comer tion of landlord and tenant, or tenant and sub-teman. The pursuer was sole tenant under the proprietor, with an express exclusion of assignees and sub-tenants. W the landlord's consent, the pursuer was allowed to assign the lease to the defender, who came under all the obl gations previously incumbent on the pursuer, and who was relieved therefrom. A surplus rent was stipulated for-one-half payable to the proprietor, and the other to the original tenant. The surplus is, in point of fact, a bonus or grassum, and the calling it rent does not create the relative connection of landlord or tenan between the original tenant and his assignee, so as to give the right of sequestration. Such a double state of tenancy would lead to many anomalies. There might be two sequestrations in conflict over the same subject; and the pursuer might, on his showing, sue an irritancy of the lease on the arrears of a year's rent, so far as payable to him, though the original rent might have been wholly paid to the proprietor.

On appeal, the Sheriff pronounced the following judgment:

The Sheriff having considered the pursuer's appeal with reclaiming petition in support thereof, and answe for the defender, dismisses the appeal; affirms the Interlocutor appealed from, and decerns.

NOTE. The case is not free from difficulty; but, after full consideration, the Sheriff is of opinion that the application has been properly dismissed. The right of hypothec over the produce of the ground is a right positivi juris, which has been recognised as competent to

the maister of the ground," or landlord, in order to secure and recover payment of the rent stipulated, the return to him for allowing his tenant to cultivate a farm or to possess a house. The spirit of our law is opposed to the recognition of such a right of preference over effects not in the possession of the creditor; and there can be, therefore, no recognition of such rights of preference or equitable extension of it, under circastances which have not previously been held sufficient to support such a right of preference. Keeping in view these general considerations, it appears that there is no precedent which can be cited in support of the right of hypothec being competent to any party except to the landlord, or to his assignee having right to the re originally stipulated to be paid to the landlord. In the present case, the lease granted by Miss Blair to the pur defender, and she has a right of hypothee for the suer is still to be kept up, although assigned to the original rent. But the defender, as the condition acquiring right to the possession of the farm by assig tion from the pursuer, agreed to pay the sum of £771 yearly during the currency of the lease-one-half t and original tenant. It is not necessary here to deter Miss Blair, and the other half to the pursuer, the cedent mine whether Miss Blair has a right of hypothec for the half of this yearly rent payable to her. It is sufficie to determine that the pursuer has no such right for the half of the £77 11s payable to him. He is not the landlord, nor did the sum now payable to him ever for part of the rent payable to the landlord. The character of the right conferred on the pursuer, in virtue of the obligation to pay him one half of the £77 118, cannel be changed by that sum being called "additional rent

ause, if not truly rent in the legal sense of the term, cannot be made the foundation of a process of sequesion or support a right of hypothec, for no such right preference can be conferred or established by mere cement of parties, even of the most express character. = payment seems rather to be of the nature of a s, in the shape of an annual sum payable to the inal tenant, as a consideration for the assignation of lease, which never was paid to the landlord, to m alone a right of hypothec could be competent in rity of such payment. The case has been very argued in the written pleadings on both sides, but defender appears to have the best of the argument. Act. A. & R. ROBERTSON, Blairgowrie. Alt. JOHN KIPPEN, Perth.

30TH MAY, 1865.

ERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND H. G. BELL).

HARVIE v. MACKIE.

ages-Injury-Common Carrier-Master and Servant. A lorry and horse was hired from a common carrier to rvey some machinery. The loading was performed partly the hirers' men, and partly by the carter sent by the rriers, but the latter directed the position of the machinery the lorry. A portion of the goods fell upon a passenger A caused injury. In an action of damages by the party ured against the carrier-Held that he, and not the hirers, e responsible for the injury.

was an action of damages for real injury at the ace of Harvie for his own and his daughter's behoof, nsequence of a box of iron castings falling off a upon and injuring her. Three boxes had been 1 upon each other-the heaviest uppermost; and it red that the placing of the boxes on the lorry was > the carter sent by the defender Mackie, although were hoisted by the crane of the hirers, ed by their men. Mackie's defence was, that his Main was for the time the servant of the hirers, hat for his mistakes they, and not he, were responThe other facts are narrated in the Sheriffs'

xoxes

ving heard parties' procurators, and resumed consideraof the proof, productions, and whole process, Finds that arties Galbraith & M'Parlane, referred to in the closed 1, having purchased, in February, 1864, a quantity of astings lying at the Hayfield Foundry, hired from the ders a horse and lorry and driver, with the view of getting astings conveyed from said foundry to a store in Main Gorbals: Finds that the work of removal proceeded o days without accident, but about the middle of the day, being the 25th February, when three iron mouldoxes, weighing about half a ton each, had been placed on rry, two of said boxes fell off after the lorry had been n about a hundred yards from the foundry, and when it n the act of passing from Mathieson Street into Mathie ane: Finds that, the lorry being at that time close to the

pavement of the lane, the boxes fell upon the pursuer's daughter, Barbara, a girl of about seven years of age, then on the pavement, and so seriously crushed and injured her, particularly on the right hip, that she was confined to bed for four or five months, that her life was for sometime in danger, that she suffered much pain, and that she has only recently recovered from the effects of said injury—of which, however, marks stilĮ remain, which will be permanent: Finds it proved that the said moulding boxes were negligently and improperly loaded on said lorry; that they were placed on the top of each other; that so many as three should not have been so placed, or that, at all events, when so loaded, they should have been securely fastened with ropes or chains, to prevent the possibility of their falling off; and that no such precaution was taken, even though the boxes were seen after the lorry began to move to be "all shaking," and looked as if they were "likely to fall off:" Finds that the owners of the iron, Galbraith & M'Parlane, did not take any charge of the actual loading of the lorry, they having only pointed out the iron which was to be carted away: Finds that they employed four men to assist in lifting the iron by means of a crane on to the lorry, but the defenders' carter, James Main, took charge of arranging the iron when raised to, and deposited on the lorry, and he has himself deponed-"It is my duty, as driver of the lorry, to see that it is safely loaded:" Finds that he also depones-"I am in the habit of taking ropes and chains with me for fastening goods on to the lorry when necessary; I had chains with me on the day in question, but did not use them:" Finds that, in these circumstances, the injury sustained by the pursuer's daughter is attributable to the negligence of a person who was in the defenders' service at the time, and for whom they are responsible: Therefore, and under reference to the annexed Note, Repels the defences, and finds the defenders liable to the pursuer, for himself and for behoof of his said daughter, in the sum of fifty pounds sterling, in name of damages and solatium: Finds the defenders also liable in costs: Allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-The defence mainly relied on is, that the lorry, on the occasion in question, was not loaded by any one then in the defenders' employment, but by men specially employed by Galbraith & M'Parlane, and that if they were assisted by the carter Main, he was at the time the servant of the hirers of the lorry. As regards Galbraith & M'Parlane themselves, it is distinctly proved that they did nothing more than point actual loading of the lorry. Respecting the loading, M'Parout the iron that was to be carted, and took no part in the lane depones_"The driver of the lorry drove the horses and also took charge of putting on the goods. Our men raised the goods by the crane to the lorry, and the driver guided them on to the lorry and placed them on it. It was he who put the three boxes on the top of each other. The driver always regulated the quantity to be put on the lorry." This is entirely corroborated by other witnesses, including the driver himself. Hugh Broadly says, "The defenders' carter guided the boxes on to the lorry when we were at the crane. It was he who put the boxes on the top of each other." And further, "I asked him for a rope to tie on the boxes. He had none to give me. I warned him that one of them would fall off. He said, 'What was our business with that?" George Dalziel depones-"The witness Broadley and I and other two men worked at the crane, and lifted by its means three moulding boxes, which were put on the lorry by the carter. In working the crane, Broadley and I and the other men took our instructions from the carter." Main himself, as has been seen, admits that he considered it his duty to look after the safe loading of his lorry. He, as carter,

was thus not only responsible for the proper loading, but he was also bound to observe when he drove off with his load whether it was then secure, and if not, to apply some remedy. But the witness, Joseph Marshall, remarked when he saw the lorry passing, before the accident happened, that the boxes were all shaking, that they were not strapped, and that they were likely to fall off; and Main admits that he has "tied boxes with chains or ropes when they were 'cogly' and not lying right;" and yet, though he had chains with him at the time that Marshall speaks to, he made no use of them. It has been authoritatively settled in England, that the mere fact of a party being the hirer of horses and a coachman, by whose negligent driving injury is inflicted, does not make such party liable in damages, unless he assented to, and took part in, the act from which the injury accrued. See, in particular, Langher, 5 Barn. and Cress., page 547, and Quarman, 6 Mess. and Wels., page 499. In the subsequent case of M'Laughlin, 26th April, 1842, 4 Marr. and Grang, C.P., page 56, ChiefJustice Tindal explained the principle on which the previous cases went. He said, "In these cases the party hiring had no power of selection as to the person employed in driving, and, therefore, it was held that he was not responsible for the want of skill of the driver, who could not be considered as his servant, and that the person who was really the master of the driver was bound to select a proper person to be employed as driver." In the present instance, Main was the defenders' servant, was paid his wages by them, and put up his horse in their stables. Had the right which he claimed of superintending the loading of the lorry been taken out of his hands by Galbraith & M'Parlane or their servants, the defenders might have escaped responsibility; but as the proof instructs that Main was the dominus of the loading, the defenders remain liable for his negligence or want of skill. A secondary defence appeared to be set up, that the lorry was, in point of fact, sufficiently well loaded, and that, had it not been for a hole, into which one of the wheels went, at the corner of Mathieson Street and Mathison Lane, and the jolt thereby occasioned, the moulding boxes would not have fallen off. But the answer to this is twofold -First, that the boxes should have been so loaded as to run no risk of being thrown off by any accidental jolt, which is more or less to be always calculated on in passing over thoroughfares that are much used; and, second, that it is not proved that, at the date of the accident, there was any hole at the place where it happened, There is a hole now; but the pursuer seems distinctly to have established in his conjunct probation that it was not in existence for some months after the accident, and that it was the simple turning of the lorry into Mathieson Lane that threw down the boxes. The sum of damages concluded for is £300; but the medical and sick-bed expenses have been somewhat over estimated, and it is thought, on the whole, that the modified sum awarded is adequate to meet the circumstances of the case.

by him: Finds that the parties who hired the lorry did not take any charge of the loading the iron boxes on the lorry; and that the four men whom they employed to assist in lifting the boxes on the lorry were under the direction of Main, the carter, and took their orders from him, who had the charge of arranging the iron when raised to, and placed upon, the lorry, and who has himself deponed that it was his duty as driver to see that it was properly loaded: Finds it proved that Main was warned before the lorry set off that the boxes we "cogly," and would fall off, but that he paid no attention to this, and that, although he had chains in his possession fr fastening the boxes on the lorry, he made no use of them Finds it clearly proved that the iron boxes, which were of great weight, were negligently and improperly loaded on the lorry; that they were placed on the top of each other without being fastened with ropes and chains to prevent their falling off, but a metal rod merely put through the three boxes, which did no good: Finds that the box which fell on the pursuer's child was of the weight of eleven cwt., and, though the heaviest of the three, was put on the top instead of at the bottom: Finds that the two boxes fell off the lorry when it was in the act of passing from Mathieson Street into Mathieson Lane, which is a public lane much frequented and used by the tenants there, and that the box which fell upon and so severely injured the pursuer's child, a girl seven years of age, who was upon the pavement at the time, fell partly upon the foot pavement and partly on the causeway: Finds, in these circumstances, that it is proved, in point of fact, that the catastrophe which happened to the pursuer's child was occasioned by the inproper loading of the iron boxes on the lorry, the at of ropes or chains to keep the boxes properly fastened and prevent them falling off, and putting the box that fell on the child, weighing eleven cwt., on the top of two others, and sending the lorry, without the boxes being fastened, through a publ street: Finds that these were the acts of the driver Main, who was in the defender's employment, and was paid his wages by him, and that, in law, the defender is responsible for his acts: Therefore adheres to the Interlocutor finding the defender liable, and dismisses the appeal for the defender but upon the appeal for the pursuer, in regard to the amount of damages awarded, in respect of the serious nature of the injury sustained by the pursuer's child, and the extreme pain she must have suffered; in respect her life was for some time in danger, and she was confined for above five months to bed, and has been rendered to some degree a cripple for life, from the contraction of the muscles by the healing up of the wound in her hip, which it has now done; and in respect the child was visited every day by the doctor, who attended her for a period of six months, and was paid 146 visits in all, and the charge by the doctor is twenty guineas in all; and the pursuer was besides put to considerable expense for wine and stimulants for the child, by the doctor's orders, and the child required constant nursing and attendance-assesses the damages at sixty pounds sterling, for which, with interest as

alters the Interlocutor complained of, and sustains the appeal for the pursuer, but quoad ultra, and as regards expense, adheres and decerns.

Act. J. L. LANG.

Alt. DAVID HANNAY.

23D MAY, 1865.

HERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND GLASSFORD BELL.)

M. C. FLEMING v. WILLIAM TOLMIE (Pearston's
Trustee).

-Mercantile Law Amendment Act, sect. I.-Suble of goods to arrive-Bankruptcy.-A sold to B a antity of sperm oil “to arrive," the price of which as partly paid. Before the oil was delivered, A was questrated. In an action by B against A's trustee for livery of the oil-Held, that the Mercantile Law mendment Act did not apply, and that there was no ansfer of the oil.

30th March, 1864, Fleming purchased from eton two casks of rape oil, "to arrive," and granted cceptance for the price, amounting to £45 10s, which duly retired. The rape oil did not come to hand, Fleming eventually agreed to take sperm oil in lieu rape oil. Pearston accordingly ordered his correslents abroad to send some casks of sperm oil for ing, and three or four casks arrived at Leith, d with Fleming's initials. Pearston, however, g to some misunderstanding about cash matters, cted that the casks should be sent to his own store in gow, which was done. Shortly after this Pearston the bankrupt, and was sequestrated; and the present on was raised by Fleming against the trustee, praying lelivery of the sperm oil sold to and forwarded for petitioner, if of less value than £45 10s, or if of

er value to the extent in value of £45 10s.

e defence was that the statements and averments orth in the petition were not relevant and sufficient pport the prayer, and a general denial of the whole ments and averments contained in the petition. ter hearing parties on the defence of non-relevancy, Sheriff-Substitute pronounced the following Inter

would be at Port -Dundas next day; that after he had signed said draft, the pursuer repeatedly called upon Pearston to deliver the oil, but that he having stated that the oil had not come forward, and a difference having arisen regarding it, offered to give the petitioner sperm oil in lieu of said rape oil to an equivalent value, and to get the casks forwarded direct to him by the parties by whom he, Pearston, was supplied; which offer was agreed to by the petitioner, the understanding of the parties being, that the oil to be thus forwarded was at least to the extent of £45 10s, sold to the petitioner in lieu of the rape oil; that three or four casks of sperm oil marked as the petitioner's, and certain others marked for the said James Pearston, arrived in Glasgow, and were taken to Pearston's store, but he having in the interim action has been brought against the trustee on his estate, to become bankrupt, delivery was refused, and the present compel delivery of the sperm oil to an equivalent in value of the rape oil for which the acceptance of £45 10s was granted, and paid by the petitioner: Finds that it is pleaded by the defender, that though the Mercantile Law Amendment Act allows a sub-sale of goods still in the custody of the seller without delivery, it does not authorise a sale of goods not yet in the custody of the seller "to arrive:" Finds that this is a new and important question under the Mercantile Law Amendment Act, and the facts of the case, and the practice of such cases ascerthat to determine it properly, it is expedient to have all tained by proof, before pronouncing a final decision: Therefore adheres to the Interlocutor reserving the preliminary defence as a defence on the merits, but without expressing any opinion thereon, and, allowing the pursuer a proof of his averments, and the defender a conjoint probation, dismisses the appeal.

NOTE. Before the case comes to be advised upon the proof, some decision will probably have been pronounced in England, bearing on the point involved here, and as large sales have recently been made both in Liverpool and 66 arrived," or 66 Manchester of cotton to arrive "" at Liverpool. It is specially averred by the petitioner, that oil specially marked as for him, were forwarded from as arranged and agreed to, three or four casks of sperm France by the parties who supplied the oil, amd arrived in Glasgow, and were put into Pearston the bankrupt's store. This will raise the question, whether such marking with the petitioner's name was not actual or constructive delivery to him, and this of itself renders a proof necessary. It will also come out as a question in the will not thereby virtually acquire a preference over the case, whether if the pursuer succeeds in the action he other creditors of the bankrupt: See sec. 10 of the Bankrupt Act.

The case was then returned to the Sheriff-Substitute, and a proof was taken. Thereafter parties were heard, and the Sheriff-Substitute pronounced the following In

of

G

granted the pursuer an accommodation bill for £103, and the said bill fell due after the purchase of the spermaceti oil, but before it had reached its destination: Finds that the pursuer being short of money to retire said bill, the bankrupt agreed to take his acceptance for £68, to discount it with his own bank, and to give the pursuer the proceeds, to enable him to retire the £103, all of which was done accordingly, but under the arrangement that the bankrupt was to grant an acceptance to the pursuer for £65, which the pursuer was to discount and hand back the proceeds to the bankrupt, so as to relieve him: Finds that the pursuer has deponed that he never discounted said bill, but that he never gave it back to the bankrupt, and still holds it: Finds that in this state of matters the pursuer stood indebted to the bankrupt in the said £68, being the amount he had received from him | to retire the accommodation bill for £103, and he also held the bankrupt's acceptance for £60, which he had no right to retain; and on the other hand, the bankrupt was indebted to the pursuer in the amount of £45 10s, being the contents of the bill No. 5/2 for which the expected value in rape oil had not been given, there being thus a balance at that date of £22 10s against the pursuer, besides the claim for the said £60 acceptance: Finds that the bankrupt, seeing that the pursuer did not hand him the proceeds of said acceptance, nor return the acceptance, and knowing that the spermaceti oil had been shipped to Leith, sent word there not to forward it, on its arrival, to the pursuer, but direct to the bankrupt's own store in Glasgow, and this was done accordingly: Finds that the pursuer, hearing of the arrival of the oil at said store, applied for delivery of the four casks which bore his initials a day or two before the bankrupt's stoppage, but at the request of the bankrupt and his agent he agreed to postpone the demand for delivery till a trustee should be appointed under the sequestration; and as the defender then declined to give delivery, the present action was raised: Finds that the spermaceti oil not being "in the custody of the seller" when it was purchased by the pursuer, but in that of the bankrupt's correspondent abroad, the provisions of sec. 1 of the Mercantile Law Amendment Act are not applicable to the transaction: Finds that no delivery of the oil ever having taken place to the pursuer, and the oil not having been paid for, and the bankrupt having resolved to withhold delivery in respect of the pursuer's breach of contract regarding the £60 acceptance, and the oil being in consequence brought to the bankrupt's store, and found there at his bankruptcy along with his other goods, the defender was not bound to give it up to the pursuer, in respect there never was a complete transfer of said oil to him: Therefore, sustains the defences, and assoilzies the defender, reserving to the pursuer to rank as an ordinary creditor on the bankrupt's estate for whatever sum he can show as resting-owing to him: Finds, in respect of the nicety of the question arising from the complicated nature of the pursuer's transactions with the bankrupt, no expenses due, and decerns.

Both parties appealed; and after a hearing the Sheriff pronounced the following judgment:

Glasgow, 23d May, 1865.-Having heard parties' procurators, under their mutual appeals, upon the Interlocutor appealed against, and made avizandum, and considered the proof adduced, closed record, and whole process, for the reason stated by the Sheriff-Substitute, as also those in the following Note, adheres to the Interlocutor, both upon the merits and the question of expenses, and dismisses both appeals.

NOTE.-Now that the proof has been taken, this case, as the Sheriff anticipated, has substantially resolved itself into the point-Whether the pursuer is entitled to get delivery of the spermaceti oil in question, and thereby obtain a preference over the other creditors of the

bankrupt Pearston; and there appears to the Sheriff to be no sufficient grounds for giving him such a prefer ence. At the time the pursuer gave the order to Pearston for the four casks of sperm oil, on the 28th of April, which he was to get in lieu of the rape oil formerly parchased, and for which he had granted the acceptance for £45 10s, the sperm oil was admittedly not in possession of Pearston the bankrupt, but in the hands of his onepondents in Paris, the manufacturers, and was there bought as "to arrive"--Pearston having written then t send the oil direct to the pursuer, but the invoice to hi self. This being so, and the oil not being in the bank rupt's possession at the date of the sale, but only to arrive, the provision of sec. 1 of the Mercantile Law Amendment Act does not seem applicable to the present case. In consequence of a misunderstanding having taken place between the bankrupt Pearston and the pursuer in regard to the bills that had passed between them, the former, knowing that the oil had been shipped by his Paris correspondents to Leith, seut word there not to forward it to the pursuer, but direct to the bankrupt's own store in Glasgow, which was done accordingly, the oil having arrived at his store about the end of May, and the invoice and bill of lading having also been forwarded to him. Pearston shortly after this became bankrupt, and the pursuer hearing of the arrival of the oil at the store, applied for delivery of the four casks which bore his initials a day or two before the sogge but it was agreed that the demand for delivery she be postponed till the trustee was appointed under the sequestration; and after that took place, the prot action was accordingly brought against the trustee t delivery of the oil in specie. Seeing, however, th there never was a completed transfer of the oil to the pursuer, and that the casks in question were in the barkrupt's store, along with his other goods at the time of his bankruptcy, the Sheriff is of opinion that the trustee is not bound to deliver up this oil to the pursuer, which would virtually be granting him a preference over th other creditors, if, as the pursuer says, he had granted an acceptance for £45 10s as for the rape oil, for which the sperm oil was to be given him to that extent instal The mere fact of the four casks being marked by the parsuer's initials, when still in transitu, and they had not arrived at their destination, or come into his possession, cannot be regarded as either real or constructive delivery to the pursuer, so as to entitle him to demand delivery d the oil from the trustee on the estate. And, besides, ti sperm oil had not been paid for, at least to the extent of the difference between its price and the cost of the rape oil, for which the pursuer had granted the bankrupt Es acceptance for £45 10s, irrespective of the disputes between them in regard to the £103 bill, and the other bills granted in connection with it. In these circurestances, there are not sufficient grounds to confer upon the pursuer the preference over the other creditors of 11 bankrupt for which he contends in demanding delivery of the oil; and the only right that remains to him is to

rank as a creditor on the bankrupt estate for any suna ..

can show to be due to him, which is reserved to him to 3 by the Interlocutor under review. Having regard, Lowever, to the nicety and novelty of the question aris out of the transactions between the bankrupt and pursuer, the Sheriff agrees with the Sheriff-Substitute L thinking that no expenses should be found due to or by either party.

Act. P. S. HONEYMAN. Alt. J. FISHER M'LAREN.