and authenticated, the latter, hough held part of oath, This was a summary action to have the defender not being signed. 8. John Miller, flesher and ham curer, Busby-in respect that the deponent is conjunct and confident with the bankrupt; that no proper or effectual voucher of debt has been produced; that the pretended bill produced was granted without value, and never acted upon or discounted; that it is not payable to the deponent, but to his order; that the bt claimed is not due by the bankrupt, but concocted between him and deponent, and that the mandate produced is not dated or completed. 9. Joshua Buchanan, Junior, a partner of Joshua Buchanan & Son, ham curers and provision merchants, Candleriggs Street, Glasgow-in respect the account produced is vitiated in the date thereof or the docquet thereof, and the oath, mandate, and account are not duly executed, completed, and authenticated. 10. Robert Jamieson, a partner of William Jamieson & Son, soap makers, Paisley-in respect the account produced is not duly signed or authenticated. ordained to repair certain buildings which had been The record was then closed, and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the closed record, Finds that the pursuer in his petition narrates the fall of the defender's chimney stalk on his wooden stable and hay and Parties' procurators having been heard, the Sheriff-victual house, whereby the walls of the building and the parSubstitute pronounced the following Interlocutor: titions and fittings were damaged, one horse was killed, three Having considered the Notes of Objections for Robert Galt, others injured, and a quantity of hay, victual, and several Jun., accountant in Glasgow, and John Houstoun, accountant sets of horses' harness damaged: Finds it alleged that the fall there, competitors for the office of trustee on the sequestrated of the chimney was attributable to the foundation thereof estates of James Rennie, grocer and provision merchant, Nos. being too narrow in proportion to the height, and that it was 107 and 109 Stock well Street, Glasgow, and having heard for some time previously in an unsafe and dangerous condition; parties, Finds and declares, for the reasons stated in the and, upon this narrative, warrant is craved; (1) For a remit annexed Note, the said Robert Galt, Jun., to have been duly to a skilled person to inspect the stable and other premises in elected trustee on said sequestrated estates: Finds the un-question, and to report on the condition thereof, and to state successful competitor, Houstoun, liable in the expenses of the what repairs require to be done to put the same in the condi competition; allows an account of said expenses to be given tion they were in previous to the fall, and the expense; (2) in, and remits the same to the auditor to tax and report, and To ordain the defender to execute the necessary repairs; or, (3) To grant warrant for the execution of these repairs at sight of an inspector, and at the defender's expense, and to decern therefor: Finds that the action, as thus laid, is relevant, and the remedy sought is competent; therefore, repels the first article in defence, which is of a preliminary description, reserving all questions of expenses; and on the merits, and under reservation of the whole rights and pleas of parties, remits as craved to Mr William T. Edmiston, wright and builder, Crown Street, Hutchesontown, Glasgow, to inspect the premises in presence of parties or their procurators, and to report as in the craving first above written, said report to be lodged within ten days, and reserves to pronounce farther on said report being lodged. decerns. NOTE. At the meeting for the election, the votes for Galt amounted in value to the sum of £350 13s 7d, and those for Houstoun to the sum of £323 4s 5d, giving the former an apparent majority of £27 9s 2d. The only objection insisted in at the scrutiny to certain of the votes for Galt was, that the affidavits on which they were founded were emitted by the respective creditors before Robert Galt, Sen., J. P., who is the competitor Galt's father, and his partner in business, and it was said that Robert Galt, Sen., waited personally on creditors and canvassed for their votes for himself or his son. This could not be held fatal to the votes of bona fide creditors; neither does there seem to be any incom. petency in the father administering the oath, whilst the mandate is granted to the son. No personal canvassing is alleged against Robert Galt, Jun; and even though it had been, it would be difficult to hold that such canvassing disqualified, however undignified, or even unprofessional, the proceeding may be. For Galt, Jun.-JAMES ALEXANDER. "Repara. NOTE. The competency of the remedy sought was disputed by the defender at the debate, and his contention was that if the pursuer's averments were well founded, he was entitled to claim damages, and that that was his appropriate and only legal remedy, but the pursuer's answer in the language of Lord Stair is sufficient to justify the course taken. tion," says his lordship, is either by restitution of the same thing in the same case that it would have been in if it had remained with the owner, and this is most exact, or, where that cannot be, by giving the like value or that which may come nearest to make up the dainage, according to the desire of the damnified." Stair, i., 9, 4. Proof was then led and concluded, and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the concluded proof, and whole cause, and made avizandum, Finds, in point of fact, that shortly before seven o'clock on the evening of 18th property, attached to and used in connection with his nail December, 1862, a square brick chimney stalk, the defender's inanufactory, in St James' Road, Glasgow, fell, and part of the materials of which the stalk had been composed was thereby precipitated upon stables and a hay and victual house said stalk on the west, in consequence whereof the roof, belonging to the pursuer, and which immediately adjoined wooden walls, partitions, and fittings of these premises were broken down and injured: Finds that, in the view to early restoration, the parties, by minute No. 5 of process-amount under reservation of their rights and pleas-consented and agreed that the pursuer's said premises should be surveyed by Mr William Thomson Edmiston, wright and builder, Glasgow, and that he should execute what repairs required to be done to put the same in the state they were previous to said fall, and to report as to the condition of the premises, and what it had taken to repair them: Fiuds that, in terms of this minute, remit was made, and the report (No. 7) was obtained, from which the extent of injury was ascertained, and the expense of restoring the premises was found to be £37 10s 6d, conform to account No. 10, which sum the pursuer has paid, and to be relieved of which, and of the expenses of this process, are now the limits of his craving: Finds that the defender has failed to prove that said chimney stalk fell through a damnum fatale, as has been pled in defence; but, on the contrary, it has been instructed that the fall was attributable to its faulty construction, in consequence of which it was unable to resist the pressure of wind which other chimney stalks in the same locality properly built, but even more exposed than the defender's, did resist: Finds, therefore, in point of law, that the defender was bound to have restored the pursuer's said premises to a condition equal to that in which they stood before being so injured; and restoration having now been made under said minute and remit, the defender is bound to pay the expenses concluded for; therefore repels the defences, and finds the defender liable in pay. ment to the pursuer of the charges for so restoring said premises, which amount to £37 10s 6d, reserving as in the petition: Finds the defender also liable in expenses of process; allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns. NOTE.-The fact of the fall of the defender's stalk was not disputed; and the extent of injury done to the pursuer's premises, and the sum necessary for reinstating them, have not been matter of contention since Mr Edmiston's report was lodged; but if these points had been still debateable, the proof led has established them. The real discussion turned on the cause of the occurrence. At the outset, the presumption in law favoured the pursuer; for, prima facie, a chimney stalk which falls and damages neighbouring property, on an evening, when, subject to the same atmospheric influence, every other stalk in the vicinity stands unaffected, must be deemed faulty and insecure. This has been repeatedly held in instances of injuries from machinery, mechanical appliances, or carriages giving way; illustrations of which will be found in Lyon v. Lawly, 1838, 16th Sess. Cases 1188; Macaulay v. Burst, 1846, 9th Sess. Cases 245, and other cases collected in Dickson on Evidence (2d ed.), sect. 12, pp. 11, 12, then such a presumption falls, and the onus of relieving himself must rest on the party defending. But here the defender has not assumed the burden; he sought merely to combat the pursuer's proof that his stalk was not of the imperfect description to which that proof pointed; and although a damnum fatale was pled by him, he all but avoided the point in probation. When that defence was forced upon him, the way the defender deals with it was to adduce such evidence as would leave it to be inferred that probably the stalk was struck by lightning, and fell, or that it was caught broadside by a fierce gust of wind, and went over. He has not maintained that the casualty resulted from a combination of these elemental agencies. As little could he successfully contend that it was produced by either, because he has not supplied proof sufficient to warrant the one view or the other. A principal witness examined by him sagaciously enough depones, that as on the night of the occurrence the wind blew from the south-west, and the stalk fell on the east side, that if it had been the wind which struck the stalk and caused the fall, "I think," he adds, "the stalk would have fallen to the north-east, or exactly opposite side from which the wind was blowing." Deposition of James White-proof, p. 351-The opinion of this witness was, that in the fall the stalk had twisted, "and, therefore, he thought it was struck by lightning." The lightning theory is not well supported; the same witness states that there had been both thunder and lightning; but then that was the state of the weather the night before-proof, p. 34. Malcolm M'Intyre saw lightning as he was going home about seven o'clock, just about the time the stalk fell-proof, p. 46. John Donald, the defender's brother, however, who was within the works at the time of the catastrophe, depones, that there had been lightning that afternoon, but he saw no lightning at the time the stalk fell proof, p. 41. On the other hand, the two policemen, M'Gregor and M'Fadyen, who were examined by the defender, and who were both traversing the streets at the very moment, and heard the noise of the fall, saw no lightning. Professor Grant, whose valuable meteoric registers were exhibited, and showed what kind of weather there was, mentioned no lightning. Thomas Kirk, who, of all the witnesses examined, was the only person who actually saw and described the fall, was not asked, and he certainly never suggested that he had either seen lightning, or that it had any thing to do with the occurrence. In fact, it was a violent gust of wind, rather than an electric stroke, which appeared to be the tendency of the defender's proof. No doubt the suggestion that the wind was the agent, if that should have been relied on, was somewhat damaged, as has been seen, by the reasoning of the witness White; still it must be considered. Generally speaking, the witnesses on both sides agree that the 18th December, 1862, was a stormy night; some of them make the wind rage with great severity, and others give it a milder aspect than perhaps it deserved. Thus the police sergeant Stewart thought it as stormy a night as the gale in 1856, which did a great deal of damage-proof, p. 48; while the witness Thomas Kirk describes the wind as blowing smartly, but nothing extra-proof, p. 14. Luckily, such conflicting opinions have found a reconciliation in the more exact and certain records of the Observatory, from which on a meteorologic question like this, an end is put to specula. tion, and the precise condition of the night, and the force of the wind at the very hour when the stalk fell, have been sup. plied. It has been shown by the productions No. 12/1 and 12/2 that, from noon till midnight, the wind blew steadily from the west; that from 5 o'clock P.M. the gale increased in intensity; and at half-past 6 o'clock the pressure of the wind was equal to thirty-seven lbs. on the square foot; but which, by a quarter to 9 o'clock, had increased to forty-six lbs., and it rained from 7 till 8 o'clock that evening. It appears, how. ever, from Professor Grant's records that this was by no means a gale of unusual severity; because in February, March, and November, 1861, and in January and October, 1862, with the wind from the same quarter, its force was much greater, and the defender's stalk resisted and stood during them all. From the condition of the chimney, as will presently be shown, these gales might probably have had a seriously trying effect, and, perhaps, indirectly and eventually conduced to its fall; but in a city like this, where, as the records referred to prove, the prevailing winds blow from the west and south-west, it is incumbent on the owners of public works so to have their chimneys constructed as to resist a considerable pressure from that point; and all other chimney stalks, except the defender's, on the night in question did stand the utmost force of the wind as it resisted at the time his stalk fell; they also resisted its greater violence at a quarter to 9 o'clock. Such was the case; although it is a fact deponed to by the witness White, that "there were several chimney stalks in the neighbourhood of the defender's, and the defender's was not so much exposed as these "-proof, p. 34. Could it be, therefore, that because of excessive violence of wind the defender's chimney fell? That chimney stood severe gales before, and others on said night in the same locality, and more exposed than the defender's, remained secure even under severe pressure. To a different cause, then, the inquiry must turn than either lightning or force of wind. It does not, of course, follow that the wind did not overthrow the stalk; but if it did, it remains to be seen whether or not that happened because the stalk was improperly and insecurely built. The defender has stated that when he acquired his works there was then a chimney attached to them, standing on the same site, and formed part of that which fell. The chimney, according to the witness Goldie, was 70 feet high, and has a base and foundation corresponding with that height; the base at the surface of the ground was 6 feet square; the found was 20 inches deep, and consisted of four courses of brick, each projecting beyond the other till the lower of the four extended 9 inches beyond the plane of the stalk. These dimensions have not been found fault with as insufficient; but in July, 1861, the defender resolved to increase its height, and for that indicating that the furnace fires had produced them. Forgie and Croal saw these rents about a fortnight or three weeks before the fall, and Porter saw a crack, though slight, on the same side two days after the fall. It is not much to the purpose that the defender's witnesses say they saw no cracks, and that they never heard complaints about the stalk, and felt no alarm, because superficial observers, and an absence of dread, cannot militate against the positive testimony of those who did see the rents, and of those who were alarmed, and were able to assign satisfactory reasons for being so. A chimney, then, of the kind described by the witnesses, and which had struggled to maintain its perpendicular throughout the preceding fierce gales of 1861 and 1862, must have been well prepared to succumb to that milder gale which happened on 18th December in the last-mentioned year. But it was contended that narrowness of base and objec tionable work had nothing to do with the fall; that the mass of building went over eastward from the top-the upper part, as it gave way, having kicked, in an opposite direction westward, another mass which caused injury to the pursuer's premises; and this argument seemed supported by the fact that large portions of the stalk were found lying, funnel like, still cohering. With respect to this argument, it may be remarked, that it is quite true part of the stalk went over to the east, and another part went westward, and some witnesses say, that in falling the upper may have pushed back an under part of the building, making the two parts fall in opposite directions; but it seems more probable that the stalk yielded first, not at the apex, but nearer the base-the upper parts having toppled from want of under support. And this is confirmed by the evidence of the only person who witnessed the occurrence. Thomas Kirk depones-"I was going home about half-past six o'clock on the evening of 18th December last, and when opposite the gate of Blackie & Co, publishers, St James's Road, I heard the noise of bricks falling rapidly one after another, and looking across the road to the defender's stalk from where I was, I saw that the bricks were rapidly falling out of the stalk from the side, near the bottom; then, after a number of feet had so fallen, the chimney gave a kind of swing round, the upper part falling eastward over on Mr Wylie's property, and the lower part westward on the stable in question." The witness explains that Messrs Blackie's gate was about ten feet high-he heard the sound of the bricks falling out of the stalk lower down, and they continued falling till they came above the height of the gate, and so upward about ten feet, when the stalk swung and came down. The witness, Mrs Murphy's, evidence in some measure confirms this testimony, and oposes the defender's theory that the stalk fell in masses. She lived in an end building of a property next the defender's works-a court divided tenements which fronted St James's Road from the buildings in the rear-and when the chimney fell, bricks from it were hurled across the court against the back windows of the front tenements, and broke them. It may be farther observed, that Kirk having actually seen the stalk twist as it was falling, may account for White's notion that the twist was caused by lightning. purpose to take down a considerable part of the stalk and rebuild on the part he left. No plan of this alteration was made, nor was there any specification prepared, and the contract for execution of the work appears to have been of a very loose kind. A tradesman named Grant, now abroad, undertook the job; he delegated his authority to the witness David son, to employ men and direct the taper which should be given to the building. Davidson depones that he fulfilled these directions, mentioning the extent of taper to the defen der's brother, that he might instruct the builders, and there upon left the work unattended. A bricklayer (Ebon Smellie) and Grant's foreman, Whyte, with two labourers, constituted the operative staff. The original stalk was taken down till about 25 feet remained above the ground; from this height the addition was begun. Davidson gave the taper suited for a chimney of from 85 to 90 feet high, beyond which he says he warned the defender's brother not to carry it. The defender provided the bricks himself, which were partly taken from the old stalk. White and Smellie continued the building till it had attained a height rather exceeding 40 feet, the walls having been kept of the same thickness as at starting, which was 18 inches; when 40 feet up, White was succeeded by the witness Wilson, who depones that when he began he found the stalk off the plumb on the north corner; it had been twisted at commencing the new work; that White, whom he described not as a bricklayer but as a mason, had built the wall outward, instead of giving it an inward taper, and that he had attempted to remedy that fault by latterly building it plumb. From this point Wilson wrought at the stalk till its completion at an elevation of about 105 feet, giving it a taper of half an inch to the yard. Davidson states that when he returned, after some interval, to the work, he discovered that the defenders had determined to carry up the stalk over 100 feet, and he saw that the taper he had given was not attended to. Wilson mentioned that nearly all the good brick had been used in the wall before he began, and, except for an outside facing of four inches, the material he used for the inner part of the wall was rubbish composed of broken bricks sent up in a creel or basket entire bricks having been slung. The witness also complained of the poverty of the lime. When finished, the square of the top was about four feet eight inches, but one of the sides was discovered to be longer than the others, which rendered an alteration on the cope stone necessary. When the workmen ceased their labour, the stalk perceptibly lay over to the east. The experiment of sawing was resorted to soon afterwards, and then, according to some of the witnesses, it stood perfectly plumb, while others depone that it still leant eastward until the very night of the gale; and so much had it been off the plumb, that it had been subject of much apprehension among the neighbours. The evidence of Davidson and Wilson conflicts with White's and the defender's brother; these latter are contradicted again by other witnesses, and the preponderance of proof supports the former. On the found and base formed to suit the original stalk of seventy feet the defender raised his addition to the increased height of 105 feet; and several of the most experienced master brickbuilders in Glasgow, who examined it after it fell, have denounced the erection as having been of insecure construction from insufficiency of scarcements for the found, and because of a too narrow base; they are agreed that for the height attained, instead of four courses of scarcements, each stepping back 2 inches, there should have been twelve, and instead of six feet of base altogether, there should have been one foot of base to every ten feet of height; that the taper should have This Interlocutor was appealed, and parties' procurabeen seven-eighths of an inch in every yard of upward tors having been heard, the Sheriff pronounced the building from ground to summit, whereas there had been but been but following judgment:half-an-inch to the yard beginning at a height of forty feet. The defender examined some witnesses to justify the dimen sions which had been given the stalk, and among these was the mason White, who had preceded Wilson at the building. Breckeridge, a journeyman bricklayer, who contracted for the re-erection of the stalk after it had fallen, and the witness Goldie, a civil engineer, were also adduced; but the position, experience, and practical skill of the witnesses Steven, Porter, Shannon, Croal, and Johnstone, entitle them to greater weight on a point of this description, and on whose evidence the Sheriff-Substitute is inclined to depend. Besides the imperfections already noticed, it has been stated by the witnesses Forgie, Croal, and Porter that they saw considerable rents in the west side of the stalk, extending from the base, and which had a begrimed, smoked look, On the whole, as the defender has failed to prove that the occurrence libelled was damnum fatale, and as the facts which have been established lead to a different conclusion, the Inter locutor pronounced is that only which can meet the justice of this case. Having heard parties' procurators under the defender's appeal, upon the Interlocutor appealed against, and made avizandum, and considered the proof adduced, and whole process, Finds that this is an action for the cost of certain repairs upon a wooden stable, hay, and victual house, belonging to the pursuer, which had been damaged by the fall of a chimney stalk of the defenders, on the evening of the 18th December, 1862: Finds that the fall of the chimney stalk on the pursuer's property is admitted, but it is alleged in defence that it fell damnum fatale, and through no fault of the defender or of those for whom he is responsible; that the fall was owing to a gale of unparalleled force, from which no building could resist, while the pursuer alleges that the chimney was defective in structure, and too weak in proportion to its height to resist an ordinary storm: Finds that a remit was made to Mr Edmiston, builder, and two others, to examine the premises and report as to the repairs that were necessary, and the report No. 7 was given in, which bears that the stalk had fallen obliquely on the pursuer's property, and a proof was thereafter allowed and taken as to the specics facti in the case: Finds it proved that, before the storm on the occasion in question, the stalk was rent to the height of several feet at the bottom, and was off the perpendicular, and had holes in the upper part of it: Finds that that stalk touched the roof of the pursuer's stable, and the upper end of it fell away from the stable, but its lower part tilted up the roof of the stable and destroyed it: Finds' that the base of the stalk containing the rent was not blown down when the upper part of it fell: Finds it proved that the stalk was 102 feet high, and seven feet six inches square at the bottom, and that it is usual when such a stalk is broken across by wind, that one part of it falls in one direction, and the other the opposite: Finds that 12 feet of the stalk was left standing when it fell, and that the wind was blowing smartly, but nothing extraordinary, and not nearly so high as it was two hours after the stalk fell: Finds that the stalk was 6 feet square, and the walls 18 inches thick at the point where it broke over and fell, and that it is proved that for seven months before it fell it was bearing off the perpendicular: Finds that the chimney was too narrow at the bottom, considering its height and the surface it exposed to the wind, and that in the course of the building of the stalk the defender was warned that it was too narrow for its height, and would be liable to be blown down by a high wind: Finds that the bricks in the outside of the stalk were good and first-class, and the lime excellent, but the inside was more defective, and little better than rubbish: Finds that when the stalk was finished it was plumb, but that before long it began to sway over to a side, and it was far too heavy at the top from the beginning: Finds that the stalk, soon after it was put up, leant so over to one side that the smoke inspector brought it under the defender's notice, and he in consequence adopted some means to bring it back to the perpendicular, which was done, and the chimney was plumb for some time after the operation of sawing was finished, but before it fell it began to lean over again: Finds that the anemometer, on the evening in question, showed a pressure for twenty minutes or so of 37 lbs. on the square foot, while a brisk gale gives only 15 lbs. on it; and at 8.45 P.M. that evening the pressure was 46 lbs. to the square foot, when the anemometer broke from the violence of the gale, but the stalk in question had fallen two hours before that, or a quarter before 7 o'clock: Finds it proved that repeatedly during the year before it fell the stalk in question had stood a gale, or a pressure of from 35 to 45 lbs. the square foot, and that storms of that violence are of very frequent occurrence in Glasgow, and occurred five times in the year 1862: Finds that the amount of damage sustained by the pursuer is not disputed; but it is contended only that the fall of the stalk was occasioned ex damno fatale: Finds, upon the whole, that though there is considerable diversity in the evidence, it is upon the whole proved that the stalk in question was not properly constructed, being too narrow at the base for its height, and was originally constructed for 70 feet in height, but afterwards altered to 102 feet, and that the fall was owing to that cause, and not any damnum fatale for which no one is responsible; therefore adheres to the Interlocutor under review, and dismisses the appeal. NOTE.-The fall of the chimney stalk here which caused the damage was obviously owing to the extending its height from 70 to 102 feet without making any addition to the dimensions of strength of the lower part of it, and not to any damnum fatale for which the defender would not have been responsible. the signature of one of his creditors to an offer of composition, but twelve months elapsed, and no composition was paid. The creditor then raised an action for his full debt, but held that he was only entitled to the composition, notwithstanding the delay. Stamp.-The ac-ceptance of an offer of composition is an agreement, and requires a corresponding stamp before it can be founded on in an action. THIS was an action for recovery of £74 13s 2d, for goods sold and delivered between June, 1861, and January, 1862, under deduction of £3 paid to account and £20, the price of a brown mare, leaving a balance of £51 13s 2d. The record was made up by summons and minute. The defences were Preliminary―The action should be dismissed, in respect the account is disconform to the summons, otherwise the summons and account are not conform to the Sheriff Court Act and relative schedule. On the Merits-The whole averments of the summons are denied, under the following qualifications:It is admitted that an agreement was entered into between the defender and pursuer on or about 11th February, 1862, whereby, inter alia, the pursuer agreed to accept of 7s 6d per pound on the sum of £51 13s (while, to effect a settlement and an understanding, that sum was agreed to be held as the amount due) as in full of all debt or claim the pursuer had against the defender, and discharged him accordingly; and that the defender has always been willing, and now judicially repeats his offer, to make payment to the pursuer of said agreed modified sum-namely, £19 4s-agreed to be accepted in full as aforesaid; quoad ultra, claimed absolvitor. Separatim-In the event of the said agreement not being held to be binding on the pursuer, the defender denies the averments in the libel and his liability for the sum sued for; and explained that the account was concocted and overcharged in every respect, both in quantities and prices, and many items were not received by the defender at all, and craved absolvitor, with costs. The summons in this action was dated 21st February, 1863. The defender meantime became insolvent, and was sequestrated. His trustee was, on 21st January, 1864, called by supplementary action, and he entered appearance. The record having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor:- Finds that it was stated at the debate for the defender that Having heard parties' procurators and reviewed the process, repels the same: Finds that the pursuer admits that he adhe did not now insist in the preliminary defence, therefore hibited his signature to the production No. 7, and that the words annexed to said signature, in my claim, being the sum of fifty-one pounds thirteen shillings," were also written by him: Finds that the said production, being a writing in re mercatoria, is valid, though not being holograph nor tested, but finds that it seems to be of the nature of an agreement requiring a stamp before effect can be given to it judicially, and appoints the defender either to procure the same stamped accordingly, or at all events impressed with the stamp provided by the 13th section of the 16 and 17 Vict., cap. 59, in the event of the Commissioners of Inland Revenue being of opinion that the writing is not chargeable with stamp duty, and sists process fourteen days to permit of this Interlocutor being obtempered with certification. This Interlocutor was appealed, and thereafter the Sheriff pronounced the following judgment: Having heard parties' procurators under the defender's appeal against the Interlocutor appealed against and whole process, in respect the document No. 7 is founded on by the defender, and seems to be of the nature of an agreement, and as such requires a stamp: Adheres to the Interlocutor in so far as it throws the onus on the defender of getting the document stamped, but reserves all questions of expenses as to the expense of stamping and the penalty, and allows the defender fourteen days from this date for producing the document stamped under certification, and quoad ultra dismisses the appeal. The Sheriff-Substitute pronounced this Interlocutor: Having heard parties' procurators, and resumed consideration of the whole process, Finds that the primary defence stated is, that the defender is not bound to pay more than a composition of 7s 6d per pound on the sum sued for, in respect of the agreement contained in the document No. 7, which has now been duly stamped, and the defender tenders the amount of said composition accordingly: but Finds that the pursuer states that he signed said document on the understanding that it was a composition contract to be acceded to by all the defender's creditors, and that the composition so acceded to was to be paid very soon after the date of the document, which is 11th February, 1862, and, failing this, was not to be binding: Finds that these averments, in the face of said written agreement, which contains no limitations, can be proved only by the writ or oath of reference of the defender; and before farther answer, allows the pursuer a proof accordingly, and to the defender a conjunct probation, in as far as said proof may be by writ; grants diligence against havers, and appoints the cause to be enrolled in the Diet Roll of the 29th instant. On appeal, this Interlocutor was pronounced:Having heard parties' procurators upon the Interlocutor appealed against and whole process, in respect the defender has not yet paid or consigned the composition on the pursuer's debt, though the Interlocutor under review bears that the defender tenders the amount of said composition, and in respect the pursuer avers that after he had signed the agree ment No. 7, which has now been stamped, he frequently applied for payment of said composition, allows the pursuer a proof pro ut de jure of his said averment, and of the debts he applied for payment of the composition, so as to let the pursuer have the benefit of any plea in law, competent to him at common law, through the defender's failure or delay to pay the composition agreed to, and allows the defender a conjunct probation thereanent, and to this extent alters the Interlocutor complained of, but quoad altra adheres thereto, and dismisses the appeal. stamping the document No. 7 falls upon the defender, M'Shane, by whom it was defrayed, and for whose benefit the document was granted, and by whom it was founded on, and he is not entitled to relief thereof from the pursner, but finds the pursuer liable to the defender in the ordinary expenses of process, in respect of the pluris petitio in the summons, and that the pursuer refused to restrict its conclusion to payment of the composition: Allows an account of said expenses to be given in, and remits the same to the auditor to tax and report. On appeal, the Sheriff pronounced the following judg ment: Having heard parties' procurators under the pursuer's ap peal, upon the Interlocutor appealed against, proof adduced, and whole process, Finds that a tender of the composition of 78 6d in the pound on the original debt was here put on record, but no consignation of the same was ever made: Finds that under the written agreement sigued by three of the creditors, of whom the pursuer is one, produced in process, and now stamped, no time was fixed for payment of the composition: Finds that the agreement to take the compo sition was signed in February, 1862, and the action for payment of the full debt was raised on 25th February, 1863, and during the year before the action was raised the pursuer offered frequently to give a discharge of the debt on getting immediate payment of the composition, which was never paid, in consequence of which the present action was brought, concluding for payment of the original debt: Finds, in these circumstances, that although the pursuer is not entitled to decree for the entire original debt, yet he is not liable in expenses of process: and in respect of the long delay on the defender's part in paying the composition which is proved to have been at least once demanded scripto before the action was raised; and in respect the defender has not even yet paid the composition, and did not consign the same in this action; and the defender has again become bankrupt, so that a composition only on the former composition all that the pursuer will get, Finds that the pursuer is entitled to the expense to which he has been put in constituting and ob taining decree for the composition on his debt; therefore adheres to the Interlocutor appealed against on the merits: but Finds the pursuer entitled to expenses of process, of which appoints an account to be given in, and remits the same to the auditor to tax and report, and so far alters the Interlocutor complained of, and decerns. defender, that, as the action was laid for the whole original NOTE. It was strongly contended for on behalf of the debt, and decree has been pronounced for the composition only of 78 6d in the pound, and as the composition was tendered during the course of the process, the defender, so far from being liable in any of the expenses, is entitled to his against the pursuer; but though this argument sounds well when first stated, it appears to the Sheriff that it will not After proof and hearing, the Sheriff-Substitute pro- stand the test of investigation when the circumstances of the nounced this Interlocutor: Having heard parties' procurators, and resumed consideration of the proof, productions, and whole process, Finds that it was finally fixed by the Interlocutor of 9th December last, adhered to quoad hoc on appeal, that the pursuer's averments that he signed the agreement No. 7, on the understanding that it was a composition contract, to be acceded to by all the original defender's creditors, and that if the composition was not paid very soon after the date of the document (11th Feb., 1862) it was not to be binding, could be proved only by the writ or oath of reference of the said defender: Finds that the pursuer has failed to adduce any such proof of his said averments: Finds, therefore, that the pursuer has failed to show any grounds for concluding in this action for the whole of his original debt, instead of for a composition of 7/6 per pound thereon, which said defender stated, in his minute of defence, he has been all along willing to pay; decerns against the original defender as in an action of constitution, and against the defender, David Young, who has sisted himself as a defender and trustee on the original defender's sequestrated estate, as such trustee, for a ranking in the sum of £19 4s, with legal interest thereon, from the said 11th Feb., 1862, but quoad ultra sustains the defences and assoilzies the defender: Finds, as regards the question of expenses, that the expense of demand are taken into consideration. The composition of 78 6d a pound on the debt, though more than two years have elapsed since it was agreed to by the pursuer, has not been paid to this day, and was never consigned, and in the interim the defender has become bankrupt a second time, and nothing will be got but a dividend upon the amount of the former composition. No time was fixed by the letter agreeing to the composition within which it was to be paid; but it is an im plied condition in all such contracts that it shall be paid within a reasonable time, and certainly within a year after the con tract was signed the pursuer repeatedly demanded payment of the composition verbally, and one letter to the same effect was written. It was not paid, however, within that time, and consequently this action was brought for the entire original debt, upon the principle that, from failure to pay the composition, the original debt revived. Still during the dependence of the action no part of the debt was either paid or consigned, and although the defender, through his agent, professed his willingness to pay the composition, yet no Court-a tender of a certain sum, pendente lite, by a solvent money was actually shown, or tendered, or consigned in party is a very important matter in determining the matter of expenses; but the case is very different in the case of an offer or teuder merely by an undischarged bankrupt, such as the defender, who began with offering a composition of 7s d |