THE STAMP LAWS.

To the Editor of the Journal of Jurisprudence.

SIR,-I wish you would direct public attention to some of the inconsistencies of the stamp laws. None of those can be greater than the provision regarding the discharge of a heritable debt. In order to the subject of the security being purified at the Record Office, the discharge of the debt must be recorded, and, for that purpose, must contain a registration clause, which requires a deed stamp of the value of 35s. A debt, of whatever amount, can be discharged for one penny, and yet, whatever the value of the property or the amount of the debt-L.50 or L.50,000-to the purging of the records a deed stamp is necessary, and in both It is to be hoped that future legislation on this branch of instances is the same. the revenue will sweep off so absurd and oppressive an inconsistency, and authorise the recording in the Register of Sasines of a discharge executed in terms of the statute, on a stamp of the value of one penny.-I am,

QUERIES ON POINTS OF PRACTICE.

PUBLICUS.

[This department, it should be understood, is necessarily confined to points of practice. Questions of law should be made the subject of a memorial for the opinion of counsel.]

SIR,-I beg to refer you to the first section of 17 and 18 Vict., c. 62, and to the seventh section of the latter Act 19 and 29, c. 91, in regard to cash accounts, and to request the opinion of any of my brethren, in a future number of the Journal, whether it would be safe to trust to the recording of a bond and disposition in security for a cash credit, as equivalent to a sasine; or if such bond should not contain a precept of sasine, and be followed by an instrument of sasine duly recorded.-I am, Sir, your most obedt. servant,

A COUNTRY PRACTITIONER,

Digest of Decisions.

COURT OF SESSION.

FIRST DIVISION.

BALFOUR AND OTHERS v. C. KERR AND OTHERS-Dec. 6.

Sale and Purchase by an Agent.

The late Mr Gourlay, represented by the pursuers, was a partner of the Dundee Foundry Company, which became bankrupt, and whose assets consisted partly of railway shares. Christopher and John Kerr were the agents for the company, and in 1845 advised a sale of the railway shares, which were then of little value. They conducted the sale; and it was now alleged that these sales were fictitious, inasmuch as the purchasers in reality held the shares in trust for the Kerrs; also that, at the time of advising the sales, the Kerrs, as agents for various railway companies, knew of proposed proceedings which were expected greatly to raise the value of the shares, and which actually did have that effect. The pursuers, having purchased the whole effects of the company, now raised a reduction of these sales. Their title was objected to, but sustained; and issues were adjusted to try the question whether the Kerrs were employed by the company to sell the shares, and whether, in violation of their duty as agents, they became the purchasers of the shares as a company, or jointly as individuals.

Petitioners, JAMES GILMOUR AND OTHERS-(Gilmour's Trustees).-Dec. 6. Entail-Objection to recording.

A petition for authority to record an entail. Objected by the institute that he could not conscientiously take benefit under the entail, it being executed under such circumstances as, in his opinion, to deprive it of all authority. Objection repelled, there being no alleged injury from recording.

RITCHIE . RITCHIE.-Dec. 6.

Cessio-Sheriff Court Process.

An objection was taken before the sheriff, in a process of cessio, to the competency of examining the pursuer, in respect he had not been examined at the original diet or an adjourned diet, whereby, it was said, the process had fallen. The sheriff repelled the objection, and an appeal was presented against his judgment. Objection, that the judgment appealed was not a judgment disposing of the process, and, therefore, incompetent to reclaim against it. Sustained.

MILLER . SMALL.-Dec. 11.

Examination of Ilavers-Confidentiality.

The Dundee Union Whale Fishing Company entered into a contract of groundannual with Small in 1835. To this contract Miller obtained right, by conveyance from the company, in 1836. He charged Small for the ground-annual from 1842 to 1853. Small suspended on the ground that he had sold the subjects. That reason was repelled. The question remained, whether Miller had a title till 1853, when he acquired it from the Crown, and certain averments of collusion were made, as to all which investigation was allowed. Ogilvie. law agent in Dundee for the company, examined as a haver, refused to produce excerpts from the minutes of the company, and also a correspondence between him and the company's agent in Edinburgh, on the ground of confidentiality, and also because he thought they had a bearing upon a pending return of declarator and reduction by Small's disponee against the company. Objection repelled, but the productions appointed to be made to the commissioner, in order to see whether any portion of them was confidential, and not bearing on the present inquiry.

DUNDAS HAMILTON (Miller & Co's Trustee) v. THE WESTERN BANK.-Dec. 13.

Retention-Pledge-Sale.

On the 28th Dec. 1853, the Western Bank discounted, for Miller & Co., a bill for L.630 on Sichel of Manchester. It fell due 1st May 1854. On 16th March they discounted another bill, by the same parties, for L.380; but for this last they got, as collateral security, a delivery order for 300 cases of brandy in bond, "to be held by them until the retirement of the bill due 1st May for L.630." And on the 28th April the Bank discounted a part renewal of this L.630 bill to the extent of L.500, with reference to which Miller & Co. authorised the bank to hold the brandy, "as collateral security, until Mr Sichel's next acceptance to us matures and is retired." The acceptance was duly retired on 31st August 1854; but in the meantime, on 21st July 1854, Miller & Co. received accommodation from the bank to the extent of L.400. They did not demand redelivery of the brandy when Sichel's bill was retired. They were sequestrated on 9th Sept. 1854. Their trustee then demanded the brandy, as it was given in pledge for the one advance; but the bank refused on the ground that they possessed it on a title ex facie absolute, and were entitled to retain it for subsequent advances. The Court held, that it was not a case of pledge, as there was no custody by the defenders: that the transference was absolute: and that, under the law of retention, the debtor could not insist on the performance of the personal obligation to re-deliver, without himself performing all those personal obligations under which he lay; therefore the bank assoilzied with modified expenses.

FAIRHOLME v. FAIRHOLME'S TRUSTEES.-Dec. 16.

Codicil-Reduction ex Lecto.

Reduction of an unattested holograph codicil. The writer, in his trust-deed, directed his trustees to give effect to any deed executed by him, although on death-bed, and however informal, if clearly indicative of intention. The heir-atlaw challenged a codicil as having been executed on death-bed, and therefore reducible quoad the heritage. The trustees maintained that it was executed of the date it bore, or anterior to the period at which the law of death-bed applied. The Court allowed evidence of its date to be taken by commission-the pursuer to begin.

DOBIE v. ABERDEEN RAILWAY COMPANY.-Dec. 18. A. S. 1841.

Jury Trial.

Application made for a commission to examine a medical witness in an action of damages for injury sustained by a collision on the defenders' railway; the cause assigned being that his wife was dangerously ill, and that it would be unfit for him to attend at the trial. Objected, that the case did not fall within the Act of Sederunt of 16th Feb. 1841. Motion refused.

CHRISTIE v. SCOTT.-Dec. 18.

Jury Trial-Reason for Postponement.

In this case, the day of trial was fixed. The defender was in jail. The agent who had hitherto conducted the case had given up his agency; and the new agent now applied for a postponement, on the ground that the materials for the defence put into his hands were so meagre, that, in the short time that now intervened till the day fixed for the trial, he could not undertake to do justice to the case. Trial postponed.

BURT 2. BURT or HENDERSON and OTHERS.-Dec. 18.

Count and Reckoning-Parties called.

Count and reckoning against the representatives of the deceased Mrs Burt, as sole executrix of her husband, under his settlement, in 1807. Preliminarg Defences (1) Other two executors accepted. (2) Action against their representatives is cut off by the negative prescription, and, therefore, the present action against the representatives of the third executor cannot be insisted in--all parties are not called. Repelled-the action being laid on the sole liability of the defenders.

Pursuer's authorities-Geils v. Geils, M'Queen, 36; Ross v Baird, July 18, 1848; Munro v. Lyon, Feb. 26, 1829.

HAY v. SIMPSON.-Dec. 19.

Poor Law Act-Statutory Notice of Chargeability.

Action of relief by the Parish of Edinburgh against the Parish of South Leith, for the maintenance of a pauper from 1846 till 1853. Defence-no statutory notice; also mora and settlement of mutual claims. In 1846, the Inspector of South Leith wrote to the Inspector of Edinburgh, giving the history of the pauper, and adding, "You should either send her to the House of Refuge, or offer to take her into your workhouse, of course, at our expense. The Court held, that though there was no proper statutory notice, there was here a sufficient acknowledgment of liability-that the mora told as much against the one party as the other, inasmuch as the Inspector of South Leith ought to have inquired what was done under his letter; and that there was practically a contract between the parties, which was not embraced in any settlement. Defence repelled. DAVIDSON v. MONYPENNY and MACKENZIE.-Dec. 19. Diligence-Incorrect Recording-Defence of Prior Nullity.

An error in the recording of an inhibition proved fatal to it in a competition with the creditors of the party inhibited. The inhibiting creditor raised an

VOL. I.-NO. II. FEBRUARY 1857.

N

action against the keeper of the register, who pleaded, that, from errors in the preparation and execution of the letters, the inhibition was null before being presented for registration. Supplementary actions were brought against the agent and messenger. The informalities founded on were chiefly, that the bill on which the letters proceeded, contained no correct address and prayer for letters of inhibition, at the instance of the creditor; and that the bill contained no prayer for warrant to execute the letters as against a debtor furth of Scotland. Also, it being admitted that the debtor was furth of Scotland, and not disputed that the proceedings were applicable to edictal citation, it was objected that the execution did not bear that the messenger proceeded as against a debtor furth of Scotland; also, that it did not certify that the debtor was inhibited by leaving a copy at the Record Office. The Court held (Lord Deas diss.) that these objections were too critical to be sustained.

REID. LAMOND and OTHERS.-Jan. 13, 1857.

Heritable and Moveable-Personal Obligation.

Reid held a bond and disposition in security for L. 450, from Tait, over certain subjects. These were purchased from Tait by the defenders at the nominal price in the disposition of L.615; but only L.165 were paid the difference of L.450 being the sum in the heritable bond to Reid, and under burden of which the purchase was made. By assignation Tait granted to the pursuer all right of relief competent against the defenders as regards the L.450. Reid brought the subjects to sale, when they realized only L.326. He brought this action for the balance and interest. Defence-The acceptance of a disposition under a real burden does not impose a personal liability therefor, far less a conjunct and several liability against the purchasers. Repelled.

Defenders' authorities-Erskine, II., 3, 47; Creditors of Smith, Dict., 10,246; Creditors of Broughton, Dict., 10,247; Gardine . The Royal Bank, 1 Macqueen, 358; Kippen, February 24, 1852, 14 Session cases, 533.

LOSH, WILSON, and BELL v. MARTIN.-Jan. 14.

Process-Appeal.-See supra, p. 46.

Petition for leave to appeal. Objection-The delay thus created may cause much of the evidence, chiefly by seafaring persons, to be lost. Repelled; but

before granting petition, issues to be adjusted.

Petitioner, WOOD.-Jan. 16.
Process-Judicial Factor.

It is not an imperative rule that a petition for discharge of a judicial factor, or for recall, must be in name of the factor.

WALKER v. WALKER.-Jan. 16.

Proof-Legitimation per Sub. Mat.

Question of legitimacy. David Walker was admittedly born before his mother's marriage in 1803. On the death of his reputed father, David Walker, he succeeded to property which other members of the family now claimed, on the allegation that he was the son, not of his mother's husband, but of another man, David Gray. The evidence was conflicting. It was established, that, from his birth down till 1853, there had been acknowledgments of his status as legitimate by both his mother and reputed father; and that, on his reputed father's death in 1831, he had succeeded to a lease of a farm, and thereafter executed a renunciation as eldest son. On the other hand, his mother, at an advanced age, emitted a declaration, in which she stated that he was illegitimate. At that time, however, there were disputes in the family, and she sided with those members who were adverse to his interest. A medical man, clergyman, and law agent, all of them in her confidence, stated that they then heard her statements of her son's illegitimacy for the first time. It was not proved that his reputed father was not or could not be his father. In the circumstances, the status of legitimacy held to be established.

1

1857.]

THE COURT OF SESSION.

Pet. Sir JAMES RIDDELL.-Jan. 17.'

Entail.

Application of part of the price of lands sold under 11 and 12 Vict., c. 36, § 25, for payment of debt, in payment of arrears of interest arising subsequently to the interlocutor finding the estate validly charged with debt, approved of, there having been a deficiency to more than that extent of rents arising from the lands authorised to be sold.

RITCHIE v. RITCHIE, Jan. 20.

Process-Proof-Action of Divorce.

In the course of a conjunct probation, the defender entered certain appeals. The process was concluded on 19th December; and on 20th December, the Lord Ordinary, in respect the counsel for the defender declined to be heard on his appeals, circumduced the term for proving against him. Held—that certain witnesses having been here altogether excluded, circumduction ought not to have been granted till the issue of the appeals.

ROUGH'S TRUSTEES v. MILLER.-Jan. 23.

His daughBankrupt Act, 2 and 3 Vict., c. 41, § 83. Within Baxter died on 25th April 1853, indebted to the pursuers L.500. ters confirmed as executors. In April 1855, the pursuers raised an action against the executors for the debt, and on the dependence used arrestments. sixty days of the arrestments, the estate of the deceased was sequestrated, and The first deliverance on the application for Miller was appointed trustee. sequestration was not made till after seven months from Mr Baxter's death. The pursuers, in respect of their arrestments, claimed a preference. The trustee rejected the claim under section 83, which provides, that no arrestment, on or after the sixtieth day prior to sequestration "of the funds or effects of a Pleaded-the word bankrupt means a living bankrupt," shall be effectual. debtor, therefore, section 83 does not apply. Held, that there was nothing in the other clauses of the statute to support such limitation-therefore, deliverance confirmed.

RUSSELL v. HUTCHISON.-Jan. 28.

Landlord and Tenant-Assessment.

Action by a landed proprietor to reduce the proceedings of a parochial board in imposing poor's assessment, on the allegation that the board had overrated him, and underrated two other persons. The first ground of action was abandoned. The second was rested on the statement, that the board refused to appoint a land-surveyor to value a farm let by a proprietor to his brother, but assessed both landlord and tenant on the rent contained in the lease, the pursuer having reason to believe that the rent was under the real value. The lease was dated 1841, and provided for the expenditure of L.500 in drainage during its No special circumstances here to overrule currency. Defence-The lease is the proper criterion of the value of a farm.Ainslie v. Turnbull, July 12, 1854. that decision, the present being an ordinary, and not an improving lease. Sustained, there being no allegation that the rent was lower than would have been demanded from a third party.

PATERSON. HAY.-Jan. 29.
Poor-Law-Settlement of Lunatic.

A lunatic child, a minor, was admittedly an object of parochial relief. His father, though able-bodied, was imprisoned, and retained his birth settlement in the parish of Laurencekirk. He had never acquired any other settlement by residence or otherwise. The lunatic was born in Dalkeith. In a question between these two parishes as to the liability-Pleaded for Dalkeith, a child must follow its father's settlement, however constituted.-Barbour and Adamson, House of Lords, May 30, 1853. Pleaded for Laurencekirk-the principle of