interests of the party complaining had been thereby affected: That a delinquency might be prosecuted to various effects: That the mere investment of the Lord Advocate and four freeholders with the power to prosecute, even if the act 20 Geo. II. c. 43, did apply to the Substitute at all, did not take away any former power to prosecute at common law-indeed, that many situations could be conceived in which the above parties could not, or would not prosecute, or might not all exist: That the Sheriff-depute might still be sisted, but that his responsibility was not criminal, and was a responsibility not to individuals but to the State; and that it might with equal justice be objected to any statutory ipso facto loss of office on the part of a Substitute that the Depute had not been called.

The Lord Justice-Clerk thought the prayer of the complaint nambiguous, and wholly without any private conclusion. "To do otherwise in the premises" could not be held as embracing any private conclusion. And the Court could only look to the prayer. There could be no dismissal for malversation without concourse. As the prayer could not be mended by bringing the Sheriff-depute, there was no occasion to decide on the necessity of calling him. It was by no means clear, that the form of process made applicable to the Depute was imperative as to the Substitute. In a late case from Lerwick, in reference to a brevi man order, the Court had decided merely the civil question. Before the jurisdiction acts there were no substitutes.

Lord Glenlee agreed. It would have been a different thing had the complainer pointed out an individual act of oppression, and prayed for its remedy. In that case, the Court might have easured er nobili officio. But such was not the case. It might be doubted whether it could be a universal rule that the Depute Should be called to all complaints against the Substitute. Yet in this case, the violation of the Act of Sederunt seemed to be a charge to which the Depute should be called, especially as the Substitute pleaded the orders of the Depute in defence. Many of the grievances complained of were very considerable, hat seemed more proper for an action of damages than for a petition and complaint, which strictly applied rather to existing than to past evils.

Lord Cringletic concurred. Although a complaint at common law was competent, yet it ought not to be presented to the Court of Session, who had no power to take away the commis sion of a public officer, except under Act of Parliament. The concourse was a necessary form.

Lord Meadowbank concurred. The prayer was quite incompetent without concourse. The reason for the necessity of the encourse was, that the Lord Advocate was thereby authentieilly informed of all delinquencies. This objection saved the Curt from having to express their opinions on various difficult tatters, particularly as to the power of the Court on a private complaint. It was not clear that the Court of Session had not ever to remove all inferior judges at common law. The charge of not having complied with the Act of Sederunt was one to which, at all events, the Depute should have been made a party.

Additional Authorities for Complainer.-20 Geo. II. c. 43. Sevewright, 4th February 1786, p. 618. M'Intosh, 1819; Py, L. 272. Creditors of Dickson, 13th June 1735; Elch. Sip & Vassal. No. I. Notes. Angus, 1751; M. 14,976. Dafe. Sutherland, 7th December 1793; M. 14,981. Additional Authorities for Respondent.-20 Geo. II. c. 43. Sane. Murray, House of Lords, 1810. M'Intosh v. M'Kenir, 1819; Bly, I. 272.

Second Division.--Lord Ordinary, Moncreiff.-Act. CockSkene, Cuninghame -Alt. Dean of Faculty (Jeffrey), WB. Bell.-Adam & Brown, W. S., and John M'Kenzie, W.S., Agents.-Mr Ferguson, Clerk.

24th November 1830.

No. 36. ARCHIBALD YOUNG, Advocator, v. WILLIAM ROBERTSON & OTHERS, Respondents.

Warrandice-Assignation-Circumstances in which, held, that a purchaser of the delts due to a bankrupt Company at a fixed price, under no more than a docquet, certifying that none had been recovered by the seller (being the person who had undertaken to wind up the affairs), and warrandice from his fact and deed, was not entitled to demand afterwards an assignation to the debts. In 1819, the advocator entered, as a writer, into partnership with Andrew and Thomas Ballingall, writers in Glasgow, and advanced a premium of £1000. In 1820, the Ballingalls became bankrupt, and were sequestrated as individual traders, in transactions which did not appear on the face of their books as writers. The advocator lodged a claim on the estate of the Ballingalls; and being the only solvent partner after the bankruptcy, endeavoured to wind up their affairs. A list of the outstanding debts due to Ballingalls and Young was made up, and offered for sale. To this list Young added the following note, in his own handwriting :

"None of the above sums have been collected by me. (Signed) "ARCHIBALD YOUNG."

After some correspondence between the partners, Thomas Ballingall offered £420 for the outstanding debts, and named as sureties the respondents, to one of whom the advocator addressed a missive, on 20th February 1821, concluding the bargain (with the exception of claims against several clients), and warranting the outstanding debts, from 1st February 1821, from his own personal fact and deed only." The advocator having received the £420 next day, withdrew all claim against the Ballingalls, and they were discharged. The respondents proceeded to collect the outstanding debts, and recovered several which were not specified in the list. In 1822, the respondents sent the draft of an assignation to the said list of debts to the advocator, which he refused to sign, as disconform to his missive of sale. On this the respondents presented, to the Magistrates of Glasgow, a summary petition, praying them to ordain the advocator to execute an assignation in terms of his missive. The advocator refused to grant the assignation in the terms pointed out by the respondents, and the Magistrates reserved to them to bring an ordinary action for repetition of the sum paid for the said outstanding debts. Thereafter, the respondents raised an ordinary action, concluding, that as the advocator had refused, on frivolous pretexts, to grant an assignation to these debts sold to them, and had also recovered several of the debts which he had warranted as not collected by him, the sale should be reduced, and the £420 repaid. In this action the Magistrates decerned against the advocator, who brought both the cases before the Court of Session by advocation.

The advocator pleaded,-That he had only warranted against his own fact and deed: That, by the contract founded on, he did not sell the respondents' outstanding debts to any specified amount, nor did he warrant the debts in any list to be unaffected by the prior transactions of his partners: That the grounds set forth in the Inferior Court, even if correct, which they were not, were insufficient to set aside an onerous contract, acted on for years. The respondents plead

ed, That the list of outstanding debts was furnished by the advocator, and formed part of the contract: That the advocator was thereby bound to give the respondents a good title to recover the said debts due to Ballingalls and Young, and was not entitled to take payment of of the said debts. any

The Lord Ordinary pronounced this interlocutor:

1st June 1830.-" Having heard parties' procurators, and thereafter considered the closed record, and whole process; In respect to the second action raised by the respondents against the complainer, and mentioned in the letters of advocation, advocates the said action: Finds, that supposing it competent for the Magistrates of Glasgow to rescind a written contract of the nature referred to in that action, yet, that there do not appear to be proved, or competently offered to be proved, any sufficient grounds for such rescission, in the circumstances of the case, appearing from the record,-therefore, in the said action, assoilzies the defender, and decerns: Finds him entitled to expenses, of which appoints an account to be given in, and when lodged, remits to the auditor to tax the same, and report. But, in respect to the first action raised by the respondents, by summary petition against the complainer, and mentioned in the said letters, before further answer, appoints the cause to be enrolled in the roll of motions."

The respondents reclaimed.-At advising,

The Lord Justice-Clerk thought the first demand incompetent, and the second without foundation.

The Court adhered.

Second Division.-Lord Ordinary, Mackenzie.-Act. Cockburn, Cuninghame.-Ait. Dean of Faculty (Jeffrey), Neaves. -W. Young, and Campbell and M'Dowall, Agents.-Mr Ferguson, Clerk.

25th November 1830.

No. 37.-JOHN CAMPBELL, Common Agent in Locality of Strathblane, Complainer, v. DR W. HAMILTON, Respondent. Expenses-A minister stating objections, ex facie reasonable, in a process of valuation, and afterwards abandoning them as untenable-Held not liable to the Common Agent in the expense of opposing them.

The present question related to certain expenses incurred by the Common Agent in this process of valuation, in opposing certain objections brought forward by the minister, the res gesta being explained in the following interlocutor:

"Edinburgh, 29th May 1830.-Hamilton, for the Common Agent, claimed the expense incurred by him in opposing certain objections brought forward by the Minister, and afterwards abandoned by him, &c. Jameson, for the Minister, opposed this motion, and claimed the expense of this appearance.

"The Lord Ordinary having heard parties' procurators, finds no expenses due by the Minister to the Common Agent: But finds the Common Agent liable to the Minister in the expense of this appearance; modifies the same to three pounds three shillings Sterling, and decerns."

The Common Agent having reclaimed from this interlocutor, maintained,-That the objections thus brought forward, and abandoned by the Minister, were frivolous and vexatious. Answered for the Minister, They were considered proponable and sound by the then Dean of Faculty (Moncreiff), and were neither frivolous nor vexatious.

Lord President observed, that when ministers brought forward absurd and obviously untenable objections, they were liable to the same rules as other litigants, and would be subjected in expenses; but where they had, as appeared to be the case here, a

probabilis causa litigandi, the Court were not in the practice of awarding expenses against them.

The Court then adhered.

First Division.-Lord Ordinary, Moncreiff.-Act. Jameson. -Alt. Hope, Hamilton.-Party, Petitioner's Agent.-Andrew Clason, W. S., Respondent's Agent.

25th November 1830.

No. 38. WILLIAM CARRUTHERS, Suspender, v. JEAN HALL & OTHERS, Chargers.

Process-Submission-Award-Ultra Vires Compromissi Executor-A co-executor, appointed under a deed of settlement (which declared him liable for his own intromissions only), to lend out the executry on security, for payment of the interest to a liferentrix, and the principal to her children, having failed to lend out the fund, and paid it, according to verbal instructions of the testatrix, both principal and interest, to the liferentrix, for behoef of herself and children; and being pursued in a count and reckoning by the liferentrix and children; and having entered into a submission of the whole points in dispute in the action ; and the arbiter having decerned against him for the alleged balance on the whole intromissions with the fund, jointly and severally, with his co-executor; and having brought a suspension of this decree, on the ground that that award was ultra vires, in respect the plea of his liability, in solidum, was not maintained in the count and reckoning, nor included in the award : The award held to be ultra vires, and suspended.

By a deed of settlement, executed 3d June 1806, Mrs Janet Bell conveyed her whole moveable estate to Andrew Jameson, minister of the parish of St Mungo, and his successors in office, and to William Carruthers (suspender), as her sole executors, with directions to pay death-bed, funeral expenses, legacies, &c. The deed then bore,

"And, with regard to the remainder and residue of my property, I appoint my said executors to convert the same into money, as speedily as possible, after my death; and, after deduction of the expenses attending the discharge of the duties of their office, to lend out the same upon such security as they shall judge proper— the interest whereof to be made payable to the said Elizabeth Bell, spouse of the said John Hall, during all the days of her life, exclusive of the jus mariti of the said John Hall, her husband; and it is declared, that the same shall not be affected by his debts, or attachable by the diligence of his creditors; and, after the decease of the said Elizabeth Bell, the said interest to be payable to the said Jean Hall, spouse of the said William Roddick, during all the days of her life, exclusive of the jus mariti of her husband; and how soon the principal sum and interest due thereon can be recovered, after the death of the said Jean Hall, the same is to be equally divided amongst her lawful children, then in life, share and share alike." The deed likewise contained this clause: "And it is hereby declared, that my said executors shall not be liable for omissions, but each for his own actual intromissions, and not in solidum of one another."

At a subsequent period, the testatrix gave verbal directions to her executors, notwithstanding the terms of the deed, to pay to Mrs Elizabeth Bell, the first liferentrix, not only the interest of the residue, but such sums of the residue itself as her exigencies might require. After the testatrix's death, the executors accepted and realised the funds, amounting to about £222, which they did not lend out in terms of the settlement, but, in virtue of the verbal directions given by the testatrix, continued to advance to Mrs Elizabeth Bell, sums both of the interest and principal of the residue. On her death, in consequence of the great poverty and exigencies of the next liferentrix, Jean Hall and her family, the executors also continued

to pay to them sums, both in extinction of interest and principal of the fund till November 1827, when an action of count and reckoning was brought against them in the Sheriff Court of Dumfries, at the instance of Jean Hall and her family, in which, narrating the deed of settlement, and the administration of the executors, the summons concluded:

"Therefore, the said Rev. Andrew Jameson and William Carruthers ought and should be decerned and ordained, by our decree and sentence, to exhibit and produce to the complaine's an account of their intromissions with the property of the said deceased Janet Bell, showing the balance remaining in their hands, after deduction of the debts, legacies, and other payments made by them, and to produce the whole vouchers and instructions of the same, all to be seen and considered by the complainers; and the said Rev. Andrew Jameson and William Carruthers ought and should be decerned and ordained to invest the sum which shall be ascertained to be in their hands upon good security, in terms of the above deed of settlement, or to consign the same in the Bank of Scotland, or any other Bank which we may direct; failing which, to decern and ordain them to make payment to the pursuers of the sum of £200, less or more, to be by them invested as aforesaid, and to find them liable to the said Jean Hall in the interest of the said balance, in so far as the same has not been already paid to her."

After the action had proceeded some length, the parties entered into a judicial reference, in these

terms:

"The parties in this process have agreed to refer the whole matters in dispute to the determination of Mr James Wright, writer in Dumfries, with power to him to hear parties, to call for vouchers, examine witnesses, or, if necessary, to examine the parties on oath, and to do every thing necessary to enable him to decide the whole cause; and whatever he shall determine, the parties agree to abide by."

On 10th November 1829, the arbiter pronounced a judgment, containing these findings :

"Finds the defenders entitled to no remuneration for their trouble as trustees; and in respect they were, by the deed of settlement, appointed to convert the whole property of the testator into money as speedily as possible, and lend out the same upon such security as they should judge proper, and that they have failed to comply with this part of their instructions for a period of upwards of nineteen years, Finds them liable, jointly, and severally, in the whole intromissions had by each with the said estate and effects: And appoints the pursuers, upon these principles, to make up and lodge in process, a state of the sum alleged to be due by the defenders, and that within six days; and when lodged, allows them to see the same for six days thereafter."

He afterwards found the balance in their hands to amount to £90, 9. 9. Sterling, which he ordained them to consign in a chartered Bank, or lend out the same on such security as they may judge proper, the interest to be paid to Jean Hall, &c. The chargers having charged Mr Carruthers to consign this sum, or lend it out in terms of the award, the present suspension of the charge was brought, on the grounds-I. That the judicial award was ultra vires compromissi, in respect the chargers had never insisted, previous to the date of the submission, on the liability of the suspender and his co-executor, singuli in solidum, but each for their intromissions: That the summons of count and reckoning, on which this award proceeded, and which must be taken as the measure of the matters submit. ted, contained no conclusion against the executors singuli in solidum, nor was that question mooted at all before the Judge Ordinary: That in deciding it against

the suspender, the arbiter had both gone ultra vires compromissi, and upon wrong grounds, as there was nothing in the conduct of the suspender and his colleague to justify so penal an award: That they had delayed to lend out the principal of the residue, from a desire to comply with the verbal instructions of the testatrix; and it was not disputed that the payments they had been enabled to make to the first liferentrix, and the present chargers, in consequence of this delay, were fairly approved of by the parties at the time, and were not now denied.-H. That the arbiter had not debited the chargers with payments admitted to have been made to them, amounting to £7, 10s. Answered -I. That although the summons of count and reckoning did not expressly conclude against the suspender and his co-executor, singuli in solidum, and although the subject-matter of the reference was the points in dispute in the count and reckoning, still the arbiter was entitled, on a view of the whole cause, and in reference to the improper conduct of the suspender in delaying to lend out the money, to decide against them jointly and severally, in modum pænæ.-II. The payments, amounting to £7, 108., were admitted.

The Lord Ordinary (16th September 1830), pronounced this interlocutor:

"Having considered this bill, with the answers thereto, and whole productions-In respect the respondents do not deny that they, or some of their number, have, since the period embraced by the state of accounts on which the referee's award is founded, received from the suspender sums to the amount of £7, 10s., passes the bill to the extent of this sum, but refuses it quoad ultra."

The suspender having reclaimed; at advising,

Lord Balgray observed, that there was some difficulty in the case, but, on the whole, he considered the suspender right in law. In a judicial reference of this nature, the arbiter was bound to consider himself as in the same situation as the Judge Ordinary, and to judge in reference to the summons on which the reference was founded. But, even upon the merits, he could not agree with the arbiter. The exccutor here appeared to have acted with bona fides, in not lending out the money. It was admitted that he had been verbally instructed by the testatrix to disburse it in a manner inconsistent with a permanent investment. But the more important point here was, to consider the original deed of settlement, in which the suspender was expressly exempted from liability, in solidum, and the terms of the summons, which contained no conclusion for that degree of liability.

Lord Craigie differed, and thought that, under the reference, this point was embraced, and that the arbiter had power to award this penalty for the violation of their duty by the executors. In every such case, where trustees or executors neglected or violated so important a part of their duty, they forfeited any immunity which the truster might have promised them; and it was pars judicis to award the penalty.

Lord Gillies agreed with Lord Balgray, but thought the question not free from difficulty. He farther thought it was incompetent for the arbiter to award more than was concluded for in the summons of count and reckoning. If it was the intention of the chargers to maintain the plea of singuli in solidum, they should have distinctly inserted it in their summons. The suspender had no grounds to believe that it was sub judice. The Court then altered the Lord Ordinary's interlocutor, and remitted to pass the bill.

First Division.-Lord Ordinary, Newton.- -Act. Greenshields, J. I. Henderson.-Alt. G. G. Bell.-William Martin, S.S. C., and W. Stewart, W. S., Agents.-M. Hamilton, Clerk.

25th November 1830.

No. 39.-CATHERINE SMITH, Advocator, v. JOHN SMITH,

Respondent.

Marriage-Promise-Subsequente Copula-Circumstances in which the Commissaries and the Court held an alleged marriage by mutual acceptance, and promise subsequente copula, not established.

In October 1826, the advocator, daughter of a merchant in Dundee, brought an action of declarator of marriage, or for damages, against the respondent, a cabinet-maker there, before the Commissaries of Edinburgh, setting forth-That the respondent had courted the advocator for marriage, and had continued his attentions and assiduities for upwards of four years: That his courtship during that time was remarked by the friends and neighbours of the advocator, and was approved by her parents, &c. That his conduct was such as to impress a general understanding and belief that he intended marriage: That in consequence of his courtship, his repeated promises and engagements to marry her, and of their mutual acceptance of each other as husband and wife, and of his repeated declarations that she was his wife, the respondent was prevailed on, in February 1826, to admit him to the privileges of a husband. The summons concluded to have the parties declared married persons, &c., or otherwise the respondent found liable in damages for seduction. The respondent denied the libel entirely. A proof having been allowed, the advocator adduced five witnesses, who deponed to having observed the respondent's attentions and assiduities, and apparent courtship, for some time before the alleged copula; and three witnesses, all in the lowest rank of life, and intimate with the advocator's family, who spoke to repeated declarations, made either by the respondent to them, or in their presence, of the advocator being his wife; two of these witnesses also deponed to the subsequent copula, which was alleged to have taken place in the respondent's work-shop: They deponed, that, on that occasion, the advocator went into the shop where the respondent was: That the respondent then bolted the door: That the deponents, about a quarter of an hour thereafter, saw, through a hole at the top of the door, the respondent with his arms about the advocator's waist, and heard her complaining, and him say that he had now got the privileges of a husband, and that she was his wife. These witnesses were, however, contradicted in material parts of their testimony; and it was proved by several witnesses for the respondent, that, from the height of the work-shop door and aper ture, it was impossible for the deponents to have seen so much of the respondent's and advocator's persons as they deponed to; and it was further established, that after the alleged declarations and mutual acceptance of the parties, they continued to live separately, and to be spoken to, and treated by their friends and the witnesses as unmarried persons. The Commissaries (June 25, 1830,) pronounced an interlocutor, finding that the pursuer had failed to prove her condescendence, and therefore assoilzieing the defender from the whole conlusions of the libel, and finding the pursuer liable to him in expenses. Of this judgment the pursuer brought the present bill of advoca

tion; and the Lord Ordinary having reported the cause to the Court, the Court adhered.

First Division.-Act. Dean of Faculty (Jeffrey), Russel.Alt. Hope, M'Neill.-Geo. Ritchie, W.S., and Scott & Rymer, Solicitors, Agents.-Mr Hamilton, Clerk.

25th November 1830.

No. 40.-ALEXANDER CRICHTON, Suspender, v. ALEXANDER WATT, Charger.

Process Extract protest-Erasure in date of-Suspension—An extract registered protest, containing a part of the date written on an erasure-Held to be a valid instrument.

This was a suspension by Alexander Crichton, of a charge at the instance of Alexander Watt, for payment of a bill for £60, accepted by the suspender, as the price of some horses furnished by the charger. The first ground of suspension was, That the date of the extract registered protest, produced as the warrant of the charge, was written on an erasure, and that the charge was therefore null and void. Answered for the charger-The date of the extract is not written on an erasure. An extract is merely an authentic copy of the record; and the word which is written on an erasure (of the words "twenty-third," the word "third was written on an erasure), is a

сору of the date of registration in the record, which is quite correct. The case cannot be assimilated to that of a summons, which is an original writ, and as to the date of which there is no check; whereas an extract may be checked by the record, of which it is a transcript. But, at all events, the suspender must, ante omnia, pay the previous expenses.

The Lord Ordinary (20th May 1830,) pronounced this interlocutor:

"Having heard counsel for the parties, in respect of the erasure in the registered protest, No. 10 of process, which was the warrant of the charge-Sustains the reasons of suspension : Suspends the letters and charge simpliciter, and decerns: Finds the suspender entitled to expenses, appoints an account thereof to be given in, and when lodged, remits to the auditor to tax and to report."

The charger having reclaimed,

If

Lord Gillics did not think the error here in essentialibus. the word superinduced were to be held pro non scripto, the instrument would still be good. It would shew that the protest had been registered on some day betwixt the twentieth and thirtieth, and unless the suspender could shew that one of these days was beyond the period of registration, he proved nothing. The other Judges concurred, and the Court then found as follows:

cause,

They repel the objection stated to the protest, and therefore alter the interlocutor of the Lord Ordinary, complained of; and further remit to the Lord Ordinary to proceed in the and do therein as to his Lordship shall seem proper.". Suspender's Authorities.-Taylor v. Malcolm, 5th March 1829. Act. of Sed. 6th March 1829.

First Division.-Lord Ordinary, Newton.-Act. Cuninghame, Macfarlane.-Alt. Shaw.-Greig & Morton, W.S., and James Wilson, W.S., Agents.-Sir W. Scott, Clerk.

of a business, immediately conveyed to him by the other; and the annuitant having become bankrupt—Held, that it was incompetent to suspend a charge for payment of this annuity, on the grounds— I. That the annuitant, from his bankruptcy, would be unable to fulfil certain contingent and distant counter-obligations contained in the agreement; and, II. That the deed of agreement appointed all disputes arising from it to be settled by arbitration—Opinion expressed, that it was incompetent to pass a bill upon caution, offered without caution.

On 29th March 1828, the firm of Gordon, Nisbet and Company, was dissolved by the mutual consent of the partners, Gordon and Nisbet, who, of the same date, executed a deed of agreement, containing the following provisions :-I. The Company was declared to be dissolved as at 1st January 1828.-II. Gordon assigned and made over to Nisbet the good will of the business, also his whole right and interest in the Company as at 1st January 1828, the whole stock of goods, furniture, &c. belonging to the Company, and valued at £3419, 9. 8.; also the whole debts due to the Company, amounting to £5171, 3s.; also the lease of the shop and warehouse in Bristo Street, belonging to the Company; and further, he (Gordon) bound himself, under the penalty of £500, neither by himself, nor by others in his behalf, to carry on the same line of business, until the expiry of two years and a half at least, from and after January 1828.-III. In consideration of the foresaid conveyance of the stock and funds of the Company, Nisbet became bound to discharge obligations due by the Company and by Gordon, amounting to £7209, 16. 7.-IV. In consideration of the conveyance of the good will of the business, Nisbet bound himself to pay to Gordon £250 annually for five years, from and after January 1828, by monthly or weekly payments, as Gordon should incline.-V. In the event of the goods, furniture and debts, conveyed to Nisbet, not being sufficient, at the end of three years, to meet the obligations undertaken by him for Gordon, amounting, as aforesaid, to £7209, 16s. 74d., then, and in that event, Gordon bound himself to pay up the deficiency, upon receiving from Nisbet an assignation to all the debts unrealised by him; the amount of the said deficiency to be fixed and ascertained by Archibald Smith, accountant, whom failing, William Paul, accountant, as arbiters, and to be decerned for by them.-VI. To enable Nisbet to carry the agreement into effect, Gordon bound himself to interpone his security for a cash credit in Nisbet's favour for £2600, for five years; and as Gordon already was debtor to the Commercial Bank in a balance of £500, due on a cash-credit, that balance was to be included in the £2600; and as Gordon would thus be debtor to Nisbet in this £500 balance, he (Gordon) bound himself to pay this sum within five years, and for further security of this and other obligations, granted Nisbet a policy of insurance on the life of Mitchell Patison, S.S.C., for £1000, the annual premium on which Gordon agreed to pay, or authorised Nisbet to pay out of his (Gordon's) yearly allowance.-VII. In case of any questions arising between the parties touching the premises, the same to be referred to the determination of the said Archibald Smith, whom failing, William Paul, whose decreet-arbitral was to be final: And lastly, The parties bound themselves to implement the agreement, under

a penalty of £500. In terms of this agreement, Nisbet received the good will of the business, and the stock, funds, and debts of the previous Company; and shortly thereafter Gordon failed, and was sequestrated, and Mr Gibson elected trustee on his estate. The trustee then charged Nisbet to implement the said agreement, and in particular, to pay £645, 16s. Sd. of arrears, due on 1st August 1830, on the annuity of £250 stipulated to Gordon. Of this charge the present bill of suspension was brought, in which it was stated, inter alia, That, since the date of the deed, the suspender had paid the balance on Gordon's cash-credit, and the premiums of insurance on Patison's life, amounting in all to £651, 5. 5., and made other payments on his account, amounting to £287, 3s. That out of the debts due to the former Company, amounting to £5171, 3s. the suspender had only recovered £2000, and had paid away more than that sum in liquidating the Company debts: That the deficiency thus arising must fall to be paid by Gordon at the expiry of three years from January 1828. The suspender pleaded-I. That there being a clause in the agreement expressly binding the parties to submit all matters in dispute, the present charge was incompetent. II. That unless Gordon, or the charger on his behalf, shall find caution to implement all the counter-obligations incumbent on Gordon, the suspender must be entitled to refuse implement of hisAuld v. Baird, 31st January 1827.-III. The suspender, having already made advances to Gordon, amounting to more than the sum claimed, is entitled to retention. Answered for the charger-I. That the submission contemplated by the parties, only referred to disputes arising betwixt them on the accounting at the expiry of three years.-II. That the whole of the counter-obligations immediately prestable by Gordon, have been fulfilled;-the good will of the business has been assigned;-the stock and debts of the former' Company given over-and Gordon bound from entering into any rival trade for a period of time; therefore, the suspender must be bound to perform the stipulations in the deed incumbent on him.-III. Neither the charger nor Gordon are bound to find caution for implement of Gordon's part of the agreement, in respect the suspender possesses, in the policy of insurance on Patison's life, security for more deficiency than can possibly arise.-IV. Sufficient vouchers of the suspender's payments on Gordon's account have not been produced.

The Lord Ordinary pronounced this interlocutor:"30th October, 1830.-The Lord Ordinary having again considered this bill, with the answers thereto, and charge and writings produced, refuses the bill; Finds expenses due; Allows an account thereof to be given in, and, when lodged, remits to the auditor to tax the same, and to report."

On a reclaiming note by the suspender,

Lord Balgray observed, that the suspender had got the good will of the business, the consideration for which the annuity charged for was to be payable. The full value of the annuity, had been paid down ;-the provision was alimentary. Mr Nisbet had not shewn that he had not the means of realising within three years what would keep him indemnis.

Lord Craigie doubted whether the agreement did not compre. hend such disputes as the present as fit matters of reference. The suspender then offered caution.