that only the question as to the true meaning and execution of the contract referred to, shall be submitted to the arbiter named in the contract; and remit to the Lord Ordinary to proceed accordingly, with this farther instruction, that process shall be sisted as to the further points in dispute, until such submission shall be disposed of; and reserve all questions as to expenses, hinc inde : Quoad ultra, refuse the desire of the note," &c.

Second Division.-Lord Ordinary, Mackenzie.-Act. Skene and Thomson.-All. More and C. Dick.-R. & A. Kennedy, W.S., and W. A. G. and R. Ellis, W. S., Agents.-P. Clerk.

1st March 1831.

No. 293.-MRS ELIZABETH MACK or CLELAND & HUSBAND, Pursuers, v. JoHN H. MACK, &c., Defenders. Expenses-Inventory-Documents-A party having desired that a mass of documents should be inventoried and conveyed to another house for her inspection-Circumstances in which, held, that she was bound to pay the expenses thereby incurred.

The late William Mack, writer in Airdrie, by a settlement, dated the 2d May 1825, conveyed his whole heritable and moveable estate to his children, the pursuers and defenders, equally, share and share alike. The pursuer, a daughter of the deceased, with concurrence of her husband, brought an action of exhibition, and count and reckoning against the defenders, concluding, inter alia, for exhibition and production of the whole books, vouchers, letters, &c. which belonged to her late father. Lord Mackenzie pronounced this interlocutor, (9th December 1829):

"The Lord Ordinary having heard parties' procurators in the question of exhibition, of consent of all parties, appoints the books, vouchers of debt, letters, and papers of the deceased William Mack, now at Fruitfield, or in the custody of all or any of the defenders, to be deposited by inventory, in hoc statu, at Glasgow, under the charge of James M'Hardy, sheriff-clerkdepute at Glasgow, and that within a month from this date, there to remain open and patent for the inspection of the pursuers, and all concerned, subject to the further orders of the Court, without prejudice to any of the documents being borrowed up from him upon receipt, when necessary, for the recovery of the funds, or due administration of the affairs of the deceased: Finds the defenders bound to depone, as in an exhibition; and for this purpose, and for the examination of hav. ers, grants warrant for letters of incident diligence, at both or either parties' instance, for recovering the documents above referred to, and grants commission to Walter Moir, sheriff-substitute of Lanarkshire, residing at Glasgow, to take the defenders' and havers' oaths, and receive their exhibits, for the purpose of being deposited as above-mentioned, and that any lawful day betwixt and the day of

to be then reported to the Lord Ordinary, and dispenses with the Minute-book."

Thereafter, his Lordship, on the 12th January 1831, pronounced the following interlocutor:

"The Lord Ordinary, in respect of the offer of Mr J. Hamilton Mack to give exhibition to the pursuer, or his agents, of all the documents referred to in his deposition, at the house of Fruitfield, finds, that if the pursuer insists that these documents shall be inventoried or removed to another house, that the expense of said inventory must be borne by the pursuer in the first place; and in terms of said order, appoints the said J. H. Mack to give such inspection accordingly to the pursuers, or their agents, and that any time betwixt and the 5th day of February next: Finds the pursuers liable in the expense of the discussion relative to the report of last commission; allows an account thereof to be given in, and when lodged, remits the same to the Auditor to tax, and report."

The pursuers reclaimed, and pleaded-That as she

was an executor of her father, and as much a proprietor of the documents in question as the defenders, that they, and particularly J. H. Mack, were bound to produce the whole books, vouchers of debt, letters and papers, belonging to the deceased William Mack, to Mr James M'Hardy, in terms of the Lord Ordinary's interlocutor of 9th December 1829, and that without the pursuer now paying the expense of inventorying said papers; or that the defenders, and more particularly the defender, J. H. Mack, are bound to produce the said papers and others to the pursuers, in a house at Airdrie, to be agreed on between the parties for that purpose, so that they may be there inspected by the pursuers or their agents, in terms of the offers contained in the defenders' depositions: That the pursuer was not bound to go to Fruitfield, nor yet to send an agent there to examine the said papers. Without hearing counsel on the other side,

Lord Justice-Clerk observed, that the Lord Ordinary's interlocutor had in view a rational production, and not every scrap of paper for a number of years: That if the pursuer's brother should use her ill, she would have the protection of the law: That she should go to Fruitfield, and if she did not choose to do that, let her pay the expenses of the inventory. Lords Glenlee and Meadowbank concurred.

The Court unanimously refused the note:

Second Division.-Lord Ordinary, Mackenzie.-Act. Skene and Bell.-Alt. Dean of Faculty (Hope) and Jameson.- Wm. Douglas, W.S., Wm. Wotherspoon, S.S.C., Andrew Hill, W.S., and W. A. G. and R. Ellis, W. S., Agents.-Mr Thomson, Clerk.

OUTER HOUSE.

23d February 1831.

No. 294.-THE CHAMBERLAIN OF THE BURGH OF STIRLING, Pursuer, v. HENRY GOW & WILLIAM BOWDEN, Defenders. Process-Chamberlain of Burgh-Title to Pursue-CautionerPrincipal, Discussion of-A Summons having been executed in the name of a Chamberlain of a Burgh, and he having been removed from office-I. Held competent to call the said summons in name of the party appointed his successor.-II. That the pursuers were not bound to discuss the principal, before calling on the cautioner to fulfil his part of the engagement.—III. Opinion expressed, but question not decided, that where a contract had been entered into with the Magistrates of a burgh themselves, that the Chamberlain of said burgh being, from his office, merely a factor, had no power to institute actions for behoof of the community.

The defender, Gow, with Bowden as his cautioner, contracted, by missive letter, of date the 28th January 1830, for the produce of the town of Stirling's salmon fisheries during the season then ensuing. The said missive letter was addressed to the Magistrates and Town Council of Stirling, and was accepted by William Galbraith, one of the town-clerks, on behalf of said Town Council and Magistrates. Gow failed, it was alleged, to implement the said contract, when the present action was raised for payment of a certain quantity of the fish furnished. In limine, the defenders pleaded-I. The Chamberlain of the burgh of Stirling has no title to prosecute the present action for behoof of the Magistrates and Town Council of

the said burgh, and the community thereof. The defender's offer was made to the Town Council, and accepted by the town-clerk.-II. The summons was raised and executed in the name of Mr James Kerr, as chamberlain of the burgh; but that gentleman was removed from office, as instructed by the town records, as well as by a minute lodged in process. The office of town chamberlain is now filled by Mr James Mathie, and has been so since 9th October. It was, therefore, altogether irregular to call the summons, in the month of December, in the name of Mr Kerr. It might, with equal propriety, have been called in the name of a deceased pursuer.-III. In so far as regards the defender, Mr Bowden, this action is likewise irregular, and cannot be proceeded in, as he was merely cautioner for Mr Gow; and the Magistrates of Stirling are bound to discuss the principal, before they can call upon the cautioner to fulfil his part of the engagement. The Lord Ordinary remitted

"to the Clerk of process, to report upon the calling of the summons, and the regularity of the proceedings referred to in the second preliminary defence."

The clerk reported, that the summons was executed on the 22d September 1830, at the instance of

"James Kerr, present chamberlain of the burgh of Stirling, for behoof the Magistrates and Town Council of the said burgh, and the community of the same."

That, on the 16th December, it was called in name of Mr Kerr, for behoof of his said constituents, at whose instance it may be said the defender was bound to appear That at the time the summons was so called, a minute was lodged, stating, that Kerr had ceased to be chamberlain, and that Mr Mathie had been elected, who was then sisted accordingly. Perhaps there might have been authority, from practice, for maintaining, that the summons might have been called, both in the names of Mr Kerr and Mr Mathie: That the mode adopted by the pursuers appeared the more correct, as, until the calling, it might be doubted whether there was any judicial step taken, to entitle appearance to be entered for Mr Mathie, the successor of Mr Kerr. It would be dangerous to hold, that, because the pursuers chose to change their chamberlain, the action thereby fell. Unless such a consequence followed, it would have been competent to call the summons in name of some one; and no prejudice arose to the defender from its being called in Mr Kerr's name, at whose instance he had been cited, while, at the same time, Mr Kerr's successor sisted himself in his place, so that the person holding the office of chamberlain was all along in the field. Had the summons been called in name of Mr Mathie, it might have been objected, that, by being cited at the instance of one party, whilst the summons was called in the name of another, the defender suffered prejudice. In the present case, no such consequence could be alleged That the objection stated in the second preliminary defence did not seem to be well founded.

:

His Lordship then pronounced this interlocutor:

"In respect of the report, Repels the second preliminary defence; Repels, also, the third preliminary defence; but, before answer as to the first, appoints the cause to be put to the roll.-Note.-The Lord Ordinary has ordered the cause to the

roll, with the view of inquiring, Whether there is any such practice or authority relative to the powers of the chamberlain of the burgh of Stirling, to institute actions for his constituents, as may be sufficient to take the case out of the general rule. For it appears to him that a chamberlain, being, from his office, a mere factor, has not naturally a power to sue for behoof of the community, more especially where, as in the present case, the contract was entered into, not with him, but with the Magistrates themselves."

As to the first preliminary defence mentioned in the Lord Ordinary's note, his Lordship ordered a minute and answers to be given in.

Lord Ordinary, Newton.-Act. Marshall.-Alt. Boswell.. John Forman, W.S., and John Young, S. S. C., Agents.-Mr Bruce, Clerk.

COURT OF JUSTICIARY.

28th February 1831.

No. 295. THE CROWN v. JOHN MEWAN. Contempt of Court-Witness-Summary Conviction-A witness having broken forcibly out of the witness's room, the Court proceeded immediately to try him for contempt of Court; and being convicted, he was sentenced to imprisonment for a month.

Elizabeth M'Alpine and Isabella Polson were accused of robbing a Mr Moffat of a sum of money. The prisoners had a verdict in their favour. During the trial, John M'Ewan, the reputed husband of one of the pannels, and who had been cited as a witness for the Crown, escaped from the witness's room. After the trial, the Solicitor-General represented to the Court that the said John M'Ewan had been cited as a witness on behalf of the prosecutor: That he had obeyed the citation so far, as to appear in the Outer-House, and had been locked up with the other witnesses by the macer of Court, who kept the key: That, during the trial, he had broken out by forcing the locks in the inside, but that he had been instantly apprehended. The Solicitor-General then moved the Court to proceed against him immediately, as guilty of a contempt of Court.

Their Lordships pronounced this interlocutor: "Find, that it is essentially necessary, for the ends of justice, that the investigation proposed by the Solicitor-General should be immediately proceeded with."

McEwan having been placed at the Bar, the Court appointed counsel and agent to conduct his case.

The macer of the Justiciary Court, the keepers of the Parliament House, and various other witnesses, were examined on oath; and the delinquency having been clearly established, the Court pronounced this interlocutor:

"Find that the said John M'Ewan made his escape from the place in which he was duly enclosed, by violently forcing off the padlock from the door, and has thereby been guilty of a gross contempt of Court: Therefore, decern and adjudge the said John M'Ewan to be imprisoned in the Tolbooth of Edinburgh for the period of one calendar month from this date, and then to be set at liberty."

Act. Solicitor-General, Cockburn.-Alt, Geo. Skene.-Justiciary Clerk.

Printed by M. ANDERSON, Law-Printer,

No. 296.-JOHN M'FARLANE, Advocator, v. MRS JANET WHITTET or GREIG, Spouse of ALEXANDER GREIG, W.S., & HER HUSBAND, Respondents. Poinding Statute 54 Geo. III. c. 137-Expenses—Circumstances in which a poinding creditor having obtained recal of sequestration used by the landlord, by paying the hypothec rents, and thereupon obtained a warrant of sale under the poinding; and having afterwards acted as auctioneer to a roup, at which the tenant's whole effects were sold-Held, in an action at the landlord's instance (claiming, as a creditor for arrears, to participate in the benefit of the poinding, on the ground that the tenant had been rendered bankrupt within sixty days), that the sale was a voluntary sale, not under the poinding, and, therefore, that the action was inept.—II. It is irrelevant, in such an action, to allege that the sale and whole proceedings were a fraudulent device to deceive the landlord; but, in the circumstances, no expenses were found due.

George Gowans was tenant to the respondents in the lands of Hoole, at the yearly rent of £130 Sterling. At Candlemas 1827, Gowans was owing arrears of rent to the respondents, amounting to £263, 3s. In November of that year, the respondents used sequestration against Gowans for the rent of crop 1827, payable at Martinmas 1827, and Candlemas 1828, and they shortly thereafter took out a decree against him for the amount of arrears due, on which they raised horning, and rendered him bankrupt, by an execution of search, on 16th January 1828. The advocator, as indorsee of a bill for £89, 3. 6., dated 4th August 1827, and payable two months after date, drawn by Julia Bone, the aunt of Gowans, who resided in family with him, upon, and accepted by Gowans, executed a poinding, on 16th November 1827, of Gowans' crop and effects, to the extent, conform to the schedules, of £117, 14s., on which he, on 19th of same month, obtained a warrant of sale from the Sheriff, by which the roup was appointed to be "advertised at the three next adjacent parish churches, and to take place within twenty, and not sooner than eight free days from the date of the publication thereof, and the roup-roll to be reported."

Previous to applying for, and obtaining this warrant of sale, the advocator had presented a petition to the Sheriff, setting forth-That he was prevented from making his poinding effectual, in consequence of the crop and stocking being under sequestration at the instance of the respondents, and praying that the sequestration might be recalled, in so far as it affected his diligence, on his consigning the half-year's rent due at Martinmas 1827, and finding caution for the half year's rent which would fall due at Candlemas 1828, and that the respondents might be thereupon ordained to assign their right of hypothec to him. This petition was served on the respondents, and the prayer thereof granted, on consignation and caution, as above mentioned. The whole crop was sold on 4th December 1827, and on 21st January 1828, the respondents raised a summons before the Sheriff of Perthshire, against the advocator, setting forth-That Vol. III. Conducted by

SJ. W. DICKSON, W. H. DUNBAR, Advocates, JOHN
RYMER, W.S., and others, Members of the Bar,

Gowans had been rendered bankrupt within 60 days of the advocator's poinding, when he was debtor to the respondents in the sum of £263, 3s. (besides their hypothec rents), and concluding for payment of a proportion of the proceeds of the sale, corresponding to their debt, in terms of 54 Geo. III. c. 137. In de fence, the advocator stated-That the roup did not take place under the poinding, nor at the advocator's instance, but by the voluntary act of the tenant himself; and that the advocator merely acted professionally, as auctioneer to the sale, and, therefore, that the case did not fall under 54 Geo. III. c. 137. The respondents, however, maintained-That the whole proceedings were a device between Gowans, who had since absconded, and the advocator, to defeat the respondents' just claims: That the debt said to be due to the advocator was fictitious, but that the sale did, and could only have taken place under the poinding, so that the act applied. Julia Bone, the drawer of the bill, was examined, and deponed

"That she did not herself sign the bill, bearing date 4th Au gust 1827, for £89, 3s., on which the diligence at the defender's instance against George Gowans, farmer at Hoole, proceeds: That she cannot sign her name. Depones, That she desired either the defender or George Gowans, but she cannot say which, to put her name to the said bill; but as she was at the time unwell and confined to bed, she did not see her name put to the said bill. Depones, She sent this bill to the defender: That she does not recollect by whom the bill was sent to the defender: That she gave instructions to the defender to get payment of the bill, as she was not able to want it all. Depones, That she advanced to George Gowans, at different times, money, amounting to the sum contained in the bill before deponed to: That she allowed the defender to carry on the proceedings a certain length, after which she allowed George Gowans to do in the matter as he thought proper: That she received no letter or obligation from the defender, either at the time she sent the bill or afterwards, and except one pound, she got no cash from him. Depones, That she is the aunt of George Gowans. Interrogated for the defender, depones, That she recollects of some cattle that were taken away from the farm at Hoole, and afterwards brought back to it; but she does not remember who took them away, nor when they were brought back : That after the cattle were so brought back, she allowed George Gowans to do any thing he liked with them, as they were his own, and she had nothing to do with the said cattle: That the deponent, after the cattle were brought back, agreed to allow the said George Gowans to sell off every thing on the farm belonging to him, which he afterwards did. Depones, That she knows before this every thing was sequestrated on the farm, at the instance of the pursuers, but it was afterwards taken off; and being asked by the commissioner by whom, depones, That there were other officers there; and she was told by others that it was taken off."

The advocator himself was likewise examined; and he declared

"That the whole effects on the farm of Hoole were sold off on the 4th of December last, as he thinks, by Gowans, the tenant, and the declarant acted in the capacity of auctioneer: That the declarant, as auctioneer, paid the Excise-duty on such articles as were sold, which were liable for duty: That the declarant uplifted part of the roup-roll of the effects sold, to the extent of the obligation come under by him to the landlord, servant's wages, and his own expenses: That he did not uplift the roup-roll to the effect of receiving payment of his debt of £89, 3s. 6d. Declares, That he believes George Gowans and his agent, Mr D. Anderson, uplifted the remainder of the roup roll; the money uplifted by Mr Anderson being paid to Gowans that night, with a small exception."

No. XXII.

The advertisement of the sale, which had been inserted in the Perth and Dundee newspapers, was in the following terms:

"Advertisement-Sale of crop, farm-stocking, &c. To be sold by public roup, on the farm of Hoole, parish of Kinnaird, on Tuesday the 4th day of December next, the whole crop and stocking on said farm, consisting of two stacks of wheat; 15 of oats; three of barley; three of pease and beans; a quantity of hay; 70 bolls of potatoes; and four acres of turnips. Also horses, cattle, and sheep; together with carts, ploughs, harrows, and other implements of husbandry, barn-utensils, and whole other effects on the farm, including a quantity of dung. The roup will begin at 10 o'clock forenoon; and credit given until Whitsunday next. "J. M'FARLANE, Auctioneer." "Burreltown, 23d November 1827."

Hand bills of the above tenor were also distributed, one of which was sent to the respondents previous to the sale, but they were not affixed upon the three adjoining church doors, in terms of the warrant of the Sheriff, nor was the sale reported to him. The return made to the Excise was not regular, but the duty was paid on 31st January 1828. One of the witnesses examined (Andrew Dewar, farmer,) deponed as fol

lows:

6

"That he was present at the roup at Hoole, and heard the articles read, which were in the name and at the instance of George Gowans, the tenant of that farm: That the deponent saw the articles after they were read over, which were held up by the clerk, who read them; and the deponent being standing beside him, he observed the name of George Gowans adhibited to the articles; and the clerk said, Gentlemen, you need have no hesitation in bidding, as it is all at the instance of George Gowans :' That the deponent recollects of Gowans standing in the granary loft, and handing out the different lots to the defender, who was the auctioneer: That, in the deponent's opinion, he acted all along as the exposer, and recommended the stock to the purchasers: That the deponent and others partook of a refreshment which was given by Gowans, and served by him and his sister during the sale."

This account of the proceedings was corroborated by other witnesses, who farther deponed

"That some of those present at the roup, when the defender (advocator) was proceeding to sell the dung, said he had better stop till he saw his authority for selling the same, upon which the defender drew out from his pocket a paper, which he gave to the person who made the inquiry, and who, after looking at the same, again returned it to the defender, and the dung was thereafter sold. Interrogated for the defender, depones, That the individual before alluded to, said that the defender should state to those assembled at the roup, that there should be a clause, bearing, that if the dung was claimed within fourteen days by the pursuer, he was to get it; and this was mentioned by the defender."

One or two witnesses deponed, that, for their purchases at the roup, they granted bill to the advocator, and afterwards paid him the amount. The Sheriffsubstitute, on 18th March 1829,

"Finds that a poinding of the effects of George Gowans, the common debtor, was executed at the defender's instance, upon 16th November 1827; and he obtained a warrant to roup the poinded effects from this Court, on the 17th of that month: Finds that a roup of the common debtor's effects, including those which were poinded, took place on 4th December thereafter, and was conducted by the defender: Finds that the common debtor's effects being under sequestration at the pursuers' instance for rent at the time when the poinding at the defender's instance was executed, he presented an application to this Court, offering payment of the rent already due, in so far as the right of hypothee extended, and caution for payment of the remainder of the hypothee rent on its falling due, and craving that the sequestration should be recalled, in so far as it affected his poinding,

and he consigned the said rent already due in the clerk's hands, and found the caution offered by him: Finds it admitted by the defender, that he uplifted of the proceeds of roup to the extent of the obligation come under by him to the pursuers, the servant's wages and his own expenses; and he believes that the remainder was uplifted by the common debtor or his agent: Finds that the roup-roll has been recovered from the defender by incident diligence in this process against havers, but the articles of roup have not been produced; and a bill granted by one of the purchasers has been recovered, being for £25, 5s., and of which bill the defender is drawer: Finds that the common debtor was rendered legally bankrupt, on diligence at the pursuers' instance against him, upon 16th January 1828: Finds the pursuers entitled to participate in the benefit of the said poinding for the debt owing to them by the common debtor, contained in the diligence produced, and that the proceeds of sale must be held applicable to the poinding, in so far as the defender's debt and the expense of poinding extended; and remits to Mr Archibald Reid, writer, to make out a state and scheme of division ac

cordingly, betwixt and the day of

To this interlocutor the Sheriff-depute adhered. Thereafter, the Sheriff-substitute approved of Mr Reid's report

"Finds that the pursuers' share of the poinded effects amounts to £66, 17. 103, for which, decerns, with interest since the 30th day of January 1828, when the action was first called in Court, and in time coming till payment; and for £16, 12s. of expenses, and the expense of extract."

In an advocation, the advocator pleaded-I. The advocator was entitled to abandon, and did abandon his diligence of poinding before the sale, which is proved to have been voluntary, and not under the Sheriff's warrant.-II. The action being directed against the advocator solely as a poinding creditor, it is not relevant to allege that the advocator was instrumental in deceiving the respondents as to the nature of the sale, nor is such an allegation true.-III. The advocator not having intromitted farther with the proceeds of the sale, than to cover his security for the respondents' hypothec rents and expenses, is not liable to pay the sums concluded for. The respondents pleaded-I. It being proved that the advocator, in prosecution of his diligence, sold the poinded effects and received the proceeds, and that the sale was not reported 60 days before the debtor's bankruptcy, the advocator is liable to the respondents as libelled.-II. The advocator can only shew that the sale did not take place under the poinding, by representing himself as a party to a gross fraud, on which it is incompetent for him to found.-III. The advocator having in the outset of this action, represented himself as the proper creditor in the bill, he cannot now pretend that he was only trustee or agent for the drawer, on whose authority the poinding is said to have been abandoned, The Lord Ordinary (Newton),

"Advocates the cause, Finds, that the sale of the tenant's effects, on the 4th of December 1827, did not take place under the warrant of sale obtained by the advocator in following out bis poinding, but was a voluntary sale by the tenant, though conducted by the advocator as auctioneer: Finds, that the provision as to poindings, contained in the fifth section of the act of the 54th Geo. III. c. 137, is not applicable to the case; therefore sustains the defences, assoilzies the advocator, and decerns. But, in the particular circumstances of the case, finds no expenses duc-Note.-The Lord Ordinary thinks there is great reason to suppose that the bill to Julia Bone, if really granted originally for value, was indorsed to the advocator, not for the purpose of enforcing payment, but as a device for obtaining a recal of the sequestration, and so enabling the tenant

to dispose of his whole effects; and that the proceedings which followed were all part of the same plan. This is put almost beyond doubt by the evidence in process, and particularly by the facts, that the advocator had advertised a sale of the whole effects, which could only have proceeded at the tenant's instance; while he was continuing to take steps for getting the sequestration recalled, on the grounds of its being an obstacle to his following out his poinding, and that he retained, according to his own account, no part of the proceeds of the sale, towards payment of the very debt for which he was doing diligence. Still the Lord Ordinary cannot see how, holding the advocator to have acted in concert with the tenant in such a way as to mislead the respondents, or even to have subjected himself to a claim of damages, the Sheriff could give redress by finding the sale to have proceeded on the poinding, when it did not so proceed. The terms of the advertisement are inconsistent with such a supposition, and there is abundant evidence in the depositions of the witnesses called by both parties, that the sale was distinctly stated at the time to be made in the name of, and at the instance of, the tenant. Nor do the circumstances sworn to as having occurred when the dung was set up to sale at all prove that the advocator held out that he was selling as poinding creditor."

The respondents reclaimed on the merits, and the advocator on the point of expenses.

Lord Balgray.The bill, as indorsed, was a forged document, on which no diligence could go out. It should be cut up by the roots; and I am surprised Mr Greig did not bring a reduction of it. It was granted just before the bankruptcy, and without value. The advocator and the drawer of the bill expressly contradict each other. The advocator says, he gave her an obligation to pay the contents of the bill on recovering the same from Gowans; but she says she got no such obligation, but merely received £1, as a sort of bribe to indorse the bill. All the most material effects were contained in the advocator's schedule of poinding, which carried the whole. The sale should no doubt have been advertised at the adjoining church doors; but generally, in the country, the creditor and the debtor agree that the sale shall be advertised as a sale by the debtor, because in that case the bidders come forward and offer full value, whereas otherwise they do not. The advocator had the warrant of the Sheriff to sell, and evidently came prepared to do so. He pulled out of his pocket some paper, which he appears to have passed off for his warrant. But the granting to him of a bill for £25 by one of the purchasers, ties him beyond any thing. What right had he, in his character of auctioneer, to take any bills payable to him? He was not qua auctioneer dominus of the sale. No one can be allowed in this country to take advantage of his own fraud. But the only question here is, whether the advocator be bound to account under the bankrupt law? and I think he is. I am for altering the interlocutor, on the grounds of substantial justice.

Lord Gillies.-The drawer declares she authorised a person to sign the bill for her. That was not a regular indorsation; but I see nothing in it in the shape of a fraud. She declares that the money was advanced by her to Gowans, from time to time. It is irrelevant to say the poinding was inept; for how can the respondents repudiate the poinding, which is the very thing on which they found? If there was no good bill, and no poinding, the grounds of the present action are taken away. The moment the poinding is set aside the respondents lose their claim to a share of the effects. The advocator executed a poinding, and, in the meantime, the landlord very properly sequestrated. The advocator saw that the sequestration was preferable to the poinding, and therefore he paid the hypothec rents. It is said that, having done so, he was bound to go on with his poinding. But what interest had the landlord to insist that the advocator should go on with his poinding? The moment the landlord got his rent he had nothing farther to do with the advocator's proceedings. Although the landlord was a creditor aliunde, he had no better right to say, proceed with your poinding, than any other creditor had. If the landlord meant to poind himself, he might have done so. His debt was above £250, and the previous poinding was only for £89, 3s. I think it is perfectly clear

that the advocator did not go on with the poinding; and I am not for altering the interlocutor. It appears to me, the sale did not proceed on the Sheriff's warrant. The advocator was bound to pay the landlord's preferable claims, but not to go on with his poinding; and if he did not go on with it, he cannot be called on to account under the statute.

Lord Craigie.-If the respondents are well founded in their allegation of fraud, they have mistaken their ground of action. Instead of claiming a share of the poinded effects, they should have brought an action of damages, setting forth that the whole proceedings were a collusive and fraudulent scheme to defeat their rights as creditors.

Lord President.-The case has certainly not a very good complexion; but, on the whole, I am of the same opinion with Lord Gillies. It is impossible to hold that the sale took place under the poinding. The debt was only £89, 3s. The proceeds of the sale were about £400. The moment the poinding creditor found that he had sold to the amount of his debt, he would have had no right to go farther. If the sale had been under the poinding, the advocator would have been guilty of a monstrous oppression and wrong. No man is bound to go on with a sale under a poinding, The advocator, to get quit of the sequestration, paid the rent. The landlord might, in the same way, have got quit of the poinding, if he had thought proper to do so, by paying the advocator's debt. I am for adhering, but without allowing any expenses.

The Court adhered.

Respondents' Authorities.-54 Geo. III. c. 137, sects. 4, 5. Act of Sederunt, 14th December 1805, sec. 3. Tullis v. Whyte, 18th June 1817; Fac. Coll. Lawson and Others v. M'Cubbin, 15th May 1822; Shaw, Vol. I. p. 445. Lyle v. Greig and Others, 27th June 1827; Shaw, Vol. V. p. 845.

First Division.-Lord Ordinary, Newton.-Act. Cuninghame and Patton; Alexander Shepherd, Agent.-All. Dean of Faculty (Hope) and Andrew Gillies; Alexander Greig, W.S., Agent.-D. Clerk.

2d March 1831.

No. 297.-JAMES BLAIR HUNTER, Suspender, v. MARGARET PEARSON, Charger.

Bill of Exchange-Oath of Reference-Circumstances in which the domestic servant of the drawer of a bill was held to be an onerous indorsee, in a question with the acceptor, she having deponed that her master had transferred the bill to her in payment of wages, although she had allowed it to remain in his possession. Hunter presented a suspension of a charge to make payment to Margaret Pearson, of a bill for £10 Ster ling, drawn by Robert Dunlop, W.., upon, and accepted by the suspender, dated 21st January 1830, and said to have been indorsed by Mr Dunlop to the charger. The following were the reasons of suspension:-First, He never received any charge of payment for the said bill, and therefore the execution which has been returned is false, and will be immediately brought under reduction. Second, The complainer denies being owing any part of the bill charged on. Lastly, The charger is not an onerous indorsee, but has merely allowed her name to be made use of in the diligence, with the view of serving the drawer, which, if denied, the complainer hereby offers to instruct by her oath. As a proof of the collusion between the parties, it is only necessary to state, that the drawer is disburser of the expense, and acts as agent in the diligence against the complainer. The Lord Ordinary (Moncreiff) sustained the reference. to oath. The charger being examined,

"Depones, That she saw the bill charged on, on the 15th of May last, the amount of which she does not exactly recollect, but she thinks it was £12 or £14. Depones, That she got a