presents some particulars which call for a larger sum of damages than the Sheriff has now awarded, and others which point to a lesser sum, or rather no damages at all. If the circumstances under which the promise of marriage was made are considered, it seems to be clearly made out that, although the promise itself on the 17th of May was not made when the defender was in a state of intoxication, yet it was made in a lucid interval, preceded by almost five days' constant intoxication, in which he had been kept in a great measure by the pursuer's father, and followed on the same night by a most outrageous outbreak in the defender's own house, in which dancing and singing, in which the defender bore a part, went on till six o'clock in the Sunday morning. It is impossible to hold a promise of marriage made in such circumstances, if they had stood alone, as either constituting a binding obligation, or affording any relevant ground for awarding more than merely nominal damages. It is quite apparent that the defender was inveigled into a promise of marriage by the arts of the pursuer's father, who was a clerk in his employment, in which the pursuer herself bore, if not a leading, at least a considerable part. If the case, therefore, had rested there, and the defender had only endeavoured to get out of the engagement after such an entry into it, the Sheriff would either have assoilzied him in toto, or found only nominal damages due. But there is more in the case than this. For five weeks after the 17th of May, the defender continued a certain degree of intimacy with the pursuer and her friends, calling upon them, and walking with her, although always, except on one occasion, under the guardianship of her father; that the pursuer gave proof that she understood the marriage was really to go on, by resigning her situation as a nurse in the Infirmary, by giving it up and losing ten months' wages, besides her board. It is proved, too, that the defender was looking about for some employment to which he could put the pursuer after her marriage, and he spoke of a very humble one certainly that of keeping a fish stall in the Candleriggs. To this her father would not agree, and the defender then said he would put the pursuer into partnership with his daughter, and give them £100 to begin with. The fault of the defender, therefore, supposing him to have been inveigled in the first instance, when in a state of excitement arising from intemperance, consisted in this, that after getting the bout over, and after, it is said, having even taken the temperance pledge, he did not repudiate or resile altogether from his former promise, but rather, from his conduct and occasional words, gave the pursuer ground to believe that he was inclined to go on with the marriage in good earnest. For his imprudence, or, it may be, culpability in doing this, the Sheriff thinks he should pay damages. But, adverting to the mode in which the promise was originally obtained, they must be greatly modified, and therefore they are reduced to £10 10s, being the pursuer's wages as a nurse in the Infirmary for ten months. It is not a case, besides, in which it can be supposed the feelings of the pursuer can be much hurt or affected. A servant in the Infirmary, having wages at one guinea a month, and twenty-five years of age, proposing to marry a widower at the mature age of between fifty and sixty, cannot be supposed to have had her feelings very deeply engaged; the more especially as it appears that the defender's conduct, in thinking of the pursuer as a wife, is another proof of the truth of Lord Bacon's aphorism, that " Young men marry for mistresses, middle-aged men for companions, and old men for nurses.” Act. GEORGE PATERSON. 28TH MAY, 1864. All. J. L. LANG. COMMISSARY COURT, LANARKSHIREGLASGOW. (COMMISSARIES SIR A. ALISON AND GLASSFORD BELL.) Оп notary before two witnesses. On the executor applying for confirmation, the Commissary Clerk refused, and the Commissary Depute confirmed his refusal. appeal, the Commissary altered, holding that the deed was good, quoad the moveables, and granted confirmution, reserving the rights of all parties under the deed. A. B., residing in Glasgow, died, leaving a general disposition and settlement, executed shortly before his death, signed by one notary and two witnesses, containing a general conveyance of lands and heritages, as well as of his moveable means and estate, in favour of his wife. Under this deed he nominated and appointed his wife to be his sole executrix, granting to her full power to give up inventories of his estate, and to distribute the same, in terms of the settlement. After his death the widow applied to the Commissary of Lanarkshire for confirmation, as sole executrix appointed under the deed. Upon this petition the following note was written by the Commissary Clerk: "The deed referred to in the foregoing petition is a It ought, settlement of both heritage and moveables. therefore, to have been subscribed by two notaries, but as it is only subscribed by one, the Commissary Clerk is of opinion that it is null even quoad the moveable estate, in accordance with the case of Ferrie, 23d January, 1863. For that reason he has refused confirmation of the deceased's estate in favour of the petitioner. In a simi petition (Elizabeth Wilson's executors) presented to Mr Commissary Bell on 8th April last, to have the above objection overruled, he pronounced the following Interlocutor:-Glasgow, 13th April, 1864. — Having considered this petition and heard petitioner's procurator thereon, for the reasons set forth in the note annexed to the petition by the Commissary Clerk, refuses the prayer of the petition, and dismisses the same.-(Signed) Henry Glassford Bell.' This petition and note having been presented to Commissary Bell, the following Interlocutor was pronounced: - Having considered this petition, and heard the petitioner's agent thereon, Finds that it was decided in the case of Ferrie, Jan. 23, 1863, that a trust disposition of heritage and moveables, not duly executed by two notaries, could not be sus. tained, even in so far as it was a settlement of moveables. Therefore, and in respect the deed referred to in the petition is a settlement of both heritage and moveables, and is admittedly signed by only one notary, refuses to grant the prayer of said petition, dismisses the same, and decerns. This Interlocutor was appealed, when the following Interlocutor was pronounced: Having considered the foregoing petition, along with the deed of settlement founded on, and the above Interlocutor of the Commissary-Depute, and heard the agent for the petitioner thereon, in respect the settlement of the deceased produced and founded on, which is signed by one notary and two witnesses, although invalid as a conveyance of heritage, is sufficient to settle the succession of the deceased's moveable estate, and is in all respects formal quoad that estate, and contains a regular nomination of the petitioner as executrix, and may truly be regarded as the testament of the deceased, alters the Interlocutor complained of, and grants the prayer of the petitioner-reserving the rights of all concerned under the deed, and the right of any party interested to challenge it Notary. A general disposition and settlement, convey-quoad the heritage, if any left by the deceased, ing generally lands and heritages, was signed by one NOTE. The testament or deed of settlement here founded A. B., Petitioner. Testament-Confirmation-Heritable and moveable on, which is quite formal, and regular, and signed by one notary, and two witnesses, though insufficient to convey heritage, appears to be perfectly good and valid as a testa ment to convey moveable property, and as it contains the appointment of the petitioner as sole executrix, it is quite sufficient to warrant confirmation being issued in her favour. Erskine says (Book iii., lit. 2, sec. 23), "Let the subject of a testament be ever so valuable, one notary signing for the testator, with two witnesses, is sufficient." The deed of settlement referred to, in so far as it settles the succession to the moveable estate, and nominates an executrix, is unquestionably a testament. No doubt it also contains a conveyance of heritage; but it is well known that a deed though ineffectual as a disposition of heritage, may still be quite good as a conveyance of moveables, as, for example, in reductions ex capite lecti. The case of Ferrie, referred to by the Commissary Clerk and Depute, is not a parallel one to the present. In that case, a deed, which conveyed heritage, and related to matters of importance, and which had been signed by two notaries and four witnesses, was challenged by the heir at law, and set aside by the Court, on the ground of one of the notaries having been appointed a trustee, and there fore, as being in effect signed only by one, the Lord President having stated that the deed was "one requiring the signature of two notaries, both from the fact that it was a conveyance of heritage and from the importance of the deed." That decision proceeded from the fact of the deed being challenged, and that, besides relating to matters of importance, it did, de facto, convey heritage. In the present case, the value of the estate is below £500, and it is said that there is in reality no heritage whatever left by the deceased, and no one is objecting to the deed. It seems, therefore, erroneous to apply the decision in Ferrie's case to the present, and to cast aside the testament in toto, and to hold it as insufficient even to convey and regulate the distribution of the moreable estate of the deceased. Besides, the present proceeding of issuing con firmation to the petitioner as sole executrix, cannot prejudice the right of any one entitled, or who may hereafter come forward to challenge the deed in so far as the heritage, if there be any, is concerned, or on any ground whatever. Messrs SMITH & WRIGHT, Agents for Petitioner. The rubric in Ferrie's case, 35 Jurist, 196, 23d Jan, 1863, is as follows:- move. Deed--Notarial execution of Reduction-Public officer-Disqualification.-Held, that a notary is disqualified from exercising his office in the execution of a deed in which he has an interest; and that a deed conveying heritable and able property, signed by two notaries in presence of four witnesses, the trustee being at the time incapable of subscribing, was not duly executed, and was invalid, in respect one of the two notaries was one of the disponees in trust, and an executor having interests and benefits conferred on him by the deed. rate of exchange for the necessary disbursements of the ship abroad-not exceeding £650 sterling;" one-third of gross estimated freight in cash on arrival at port of discharge, and the balance on unloading and right delivery of the cargo by approved bills on London at three months date from final delivery, or cash less discount for three months at the rate of five per centum per annum at charterer's option. A subsequent clause of the charter party stipulated that the owners of the ship were to have an absolute lien on the cargo for freight, dead freight, and demurrage. The necessary sums were paid to meet the ship's disbursements abroad, and when the vessel arrived at Aberdeen, the port of discharge, one-third of the gross estimated freight was paid in cash. The respondent, who held a bill of lading for the cargo, which stipulated that the freight was to be paid as per charter party, refused to deliver approved bills for the remainder of the freight till the cargo was actually delivered to him. The petitioners then brought the present action to have the cargo landed under judicial authority, subject to their lien for the freight. The defender opposed the proceedings, pleading that by the terms of the charter party he was entitled to delivery of the whole cargo before he was called upon to pay the balance of the freight in cash or in bills. ment he founded on the case of Foster v. page 440 of M'Lachlan on Shipping. The Sheriff-Substitute pronounced the following Interlocutor: In his arguColby, cited at Having heard parties' procurators on the closed record, Finds that the balance of freight due to the petitioner is by the charter party stipulated to be paid either by cash or approved bill on unloading and right delivery of the cargo: Finds that the petitioners have also by said charter party an Finds, therefore, that the respondent is not entitled to deabsolute lien for all freight, dead freight, and demurrage: livery of the balance of the cargo without at the same time paying the balance of freight either in cash or approved bill in terms of said charter party: Therefore grants warrant for removing from the ship mentioned in the petition the portion of the cargo still therein to the links of Aberdeen, and that at the sight of James Aiken, jun., merchant in Aberdeen, subject to the lien of the petitioners for the balance of freight unpaid, quoad ultra, continues the cause, and decerns. This Interlocutor was affirmed on appeal. Act. JAMES and George COLLIE. Alt. MORICE. 28TH MAY, 1864. SHERIFF COURT, ABERDEENSHIRE-ABERDEEN. (SHERIFFS WATSON AND DAVIDSON.) J. & A. MACKINLAY v. JOHNSTON. Charter party-Construction.-Terms of a charter party which held not to import a discharge of the shipowner's lien on the cargo for the freight. In April, 1863, Mr Hamilton Hay of Glasgow chartered from the petitioners the vessel "Chevalier" of that port. The vessel was to proceed to Maulmain or Rangoon, and load from the freighters a full cargo of timber, and to proceed forthwith to this country. By the charter party it was stipulated that the freight was to be paid as follows, videlicet:-"Sufficient cash at current 31ST MAY, 1864. SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFFS E. S. GORDON AND Barclay.) LEE AND WALLACE v. SMITTERBERG. Process-Proof-Witness-Deposition to lie in retentis. -A witness about to leave the country was examined, and his evidence was ordered to lie in retentis. It was never formally made part of the process, but was laid up with it, but was never sealed. After the record had been closed, and at the debate on the merits, the agent for the party who had adduced the witness, referred to the deposition; but this being objected to, it was moved that the deposition should at that stage be made part of the process. Motion refused, and deposition ordered to be withdrawn from process. Damages-Collision-Pilot.-Pilotage not being compulsory on the river Tay at Perth, the fact that a pilot was on board a vessel charged with injury to another vessel by collision, would not be a good defence.-Circumstances in which held in an action of damages for injury to a vessel by collision with another, that the collision did not take place "through recklessness, culpable negligence, or gross carelessness," and defender assoilzed, with costs. THIS was an action of damages occasioned by collision of a foreign vessel entering the harbour of Perth, running into a steamer moored to the pier, on the allegation of negligence. A mariner about to leave was examined, to remain in retentis, but was afterwards offered in evidence. The details are fully given in the annexed In terlocutors and Notes: In the course of the debate on the merits, the solicitor for the defender referred to the deposition of a witness, contained in No. 23 of process, but was stopped by the solicitor for the pursuers on the plea that the said deposition was taken before the record was made up and closed, to remain in retentis, and had never been thereafter offered and received in evidence, whereon the former moved that said deposition should now be admitted as evidence, but this being objected to, and parties heard thereon, the Sheriff-Substitute refused the defender's motion, and now orders said deposition to be withdrawn from process. liability. Nevertheless, it forms an important fact in evidence. If the defender-a stranger had attempted to thread his way into the harbour of Perth, and thus fell foul of the pursuer's vessel, this certainly would have been evidence of recklessness. The position of the defender's vessel was very peculiar at the time she attempted to enter the harbour. The pilot was aware of the rule and practice of attaching a rope to the buoy so soon as the tug slipt her cable of connection. But unfortunately at that moment another vessel had got hold of the buoy, whilst a third was evidence as to the track which the pilot adopted in this anchored on the other side. There is contradictory dilemma with reference to the buoy-a contradiction so far explained by the stand-points of the witnesses, whether on shore or on board of some of the vessels in the river. have taken the outside of either vessel in the stream It appears to the Substitute that the pilot could not without either missing the harbour for a tide or running the vessel aground. He passed between the two vessels, one of which had canted to the side, and so narrowed the fair way all the more; but he passed in safety between them. He gave the signal to send out the boat with the rope to be attached to the buoy. There appears no evidence that there was any want of prepåration for this work, or that the signal could have been given sooner; but it is clear that from the position of the vessels at the place it became impracticable. The next order was to attach a rope to the "John and Jean," one of the blockading vessels. The question is not raised whether that vessel was bound to receive the proper act of navigation to throw a rope on her deck. But it is important that it was received, and for a time attached, and had it remained so for a short period longer, and been paid out, there would have been no collision. But unfortunately from some order given, or rather from some cry misunderstood, the rope was cut or loosed, and the defender's vessel then passed into the arbour with her speed somewhat but not greatly diminished. NOTE.-The Substitute takes this step with consider-rope of the foreign vessel, and whether, therefore, it was able reluctance, it being always painful to exclude evidence on mere technical grounds; but the objection is valid. Depositions taken to remain in retentis do not supersede the production of the witness at the proper stage, if he can be got, so as to be examined more maturely. If he is not forthcoming, the deposition must be duly tendered, and if so, is open to contradiction by other evidence. Accordingly, it was said that a witness in like manner examined for the pursuer was afterwards called and re-examined in the proof. The solicitor for the defender has somewhat of apology, seeing that the deposition appears never to have been placed under seal, but, on the contrary, was allowed apparently to form part of the process. It is perhaps matter of satisfaction that, on the merits, the Substitute has been able to reach a conclusion in favour of the defender without reference to the rejected evidence. Having heard parties' procurators on the merits, and made avizandum with the process, Finds that the pursuers have failed to prove the averment on which they founded their action and joined issue, that the damage sustained by their steamer, "The Lass of Gowrie," was "through the recklessness, culpable negligence, and gross carelessness of the defender, or of those acting under him, or for whom he is responsible:" Therefore assoilzies the defender from the conclusions of the summons: Finds him entitled to expenses, and remits the account thereof to the auditor to tax, and decerns. NOTE.-The first point in favour of the defender is that he, being a foreigner and stranger to the navigation of the Tay, had on board at the time of the collision a licensed pilot, whose orders were implicitly obeyed. Such pilotage, if compulsory, might liberate the owners and captain; but in a recent case in this Court it appeared that pilotage was not compulsory in the Tay in the case of a steam-tug, and therefore the fact of having a pilot on board might not exempt the owners from legal The pursuers' next point is, that failing to attach his vessel to the buoy, or to the "John and Jean," her anchor ought to have been dropt. The evidence here is also contradictory; but it does not appear that there was time effectually to have done so to prevent the collision, and it could not be done without risk of danger to the defender's vessel much greater in extent than was infficted on that of the pursuers'. Though the pursuers' steamer was lying outside another vessel in the harbour, whilst there was breastroom enough, this appears to have been her usual berth, and not inconsistent with the rules of the harbour. Nevertheless, in a question of culpability or accident, it cannot be overlooked that this position had the obvious effect of farther narrowing the harbour room, and so adding to the risk of accidents. However free from positive blame in taking up so exposed a berth for the sake of convenience, there must be the corresponding greater exposure to accidents. Upon the whole, after very attentively weighing the evidence, with the aid of the very able debate, the Sheriff-Substitute has been unable to reach any other conclusion but that the collision was the result of pure accident, which must be more or less one of the risks to which navigation is daily exposed. It may be proper to mention that, though the SheriffSubstitute had reached another result, and found culpability on the part of the defender's vessel, after minute calculation both of the actual damage and the necessary cessation of profit during the brief time necessary to repair, he could not have found materials to assess the damage at a higher figure than £10. If, therefore, the pursuers' tender of £15 was to be held as judicially repeated, the defender would have had his costs from the date of the tender, and therefore, pecuniarly speaking, the result would only have been to the extent of £10 different from that reached by the above Interlocutor. On appeal, the Sheriff pronounced the following judgment: The Sheriff having heard parties' procurators on the appeals taken by the parties respectively, and made avizandum with and considered the proof and whole process, dismisses said appeal, and affirms the Interlocutor appealed from, and decerns. The There must be some peculiarity as regards the rules for the navigation of the Tay, as the exemption from liability in respect of the vessel having been under charge of a licensed pilot, was not pleaded at the debate -a plea which, in cases of compulsory pilotage, receives effect, and would have afforded a defence, even if the facts were not so strong in favour of the defender. Act. PINKERTON. Alt. SKEETE. the 31st day of December, 1860. Morrison claimed, sideration of the proof, productions, and whole process, Having heard parties' procurators, and resumed conincluding the motion No. 18, Finds that under the said NOTE.-The Sheriff, after careful consideration of the motion the claimant Morrison craves leave to lodge an proof, sees no reason to differ from the conclusion ar- additional claim and productions; and his procurator rived at by the Sheriff-Substitute on the merits, and the explained at the debate that in respect the bankrupt reasons assigned in the Note, in support of that judg- Leckie had been authorised, subsequent to his seques. ment, are so satisfactory that it is quite unnecessary to tration, to finish the slater work referred to in the sumadvert at any length to the facts of the case. mons, and for which he had contracted prior to his Sheriff will only add that the witnesses of the pursuer insolvency, a farther sum of £16 58 9d had become appear not to have clearly observed the position of the payable under said contract, to which said claimant, as vessel while passing the buoy, and this must weaken the the bankrupt's trustee, wished to be preferred: but effect which might otherwise be given to their evidence. Finds that it is not hujus loci to dispose of this additional In regard to the admission of the evidence of the claim, nor could the said sum be competently added to witnesses whose depositions were taken to lie in retentis, the fund in medio, which is fixed by the summons, which the Sheriff might possibly have admitted them, subjest was the only fund existing at the institution of the to some conditions; but he does not consider that the action, and in regard to which alone the present claims defender can require the aid of those depositions, and he are applicable, there being no evidence of double distress thinks that the Sheriff-Substitute has not erred in re-in regard to the £16 5s 9d, which has subsequently fusing to admit them when proposed to be admitted as a accrued: Therefore refuses the said motion: Finds upon matter of course. the merits that the claimants J. & J. Lightbody claim to be preferred to the fund in medio in virtue of their being holders of the order or assignation No. 15, addressed to the pursuers by the bankrupt, dated 20th October, 1860, and desiring them to pay the said claimants the sum of £76 10s, "for value received by me" (the bankrupt) "from them" (J. & J. Lightbody) "in slates:" Finds that this order was not intimated to the pursuers' factor, William M'Creath, till the 29th October, 1860, and could not therefore in any view have operated as a transference in said claimants' favour till said date: but Finds it admitted by J. & J. Lightbody, and instructed by the production No. 8/1, that Leckie, the granter of the order, was sequestrated within sixty days of its date, or at all events within sixty days of the date of intimation: Finds that under the Act 1696, cap. 5, all "voluntary dispositions, assignations, or other deeds" granted by a bankrupt within sixty days of his M.P.-MUIRHEAD and Curators, Nominal Raisers, v. bankruptcy in favour of a creditor, "either for his satisfaction or farther security," are illegal preferences, J. & J. LIGHTBODY, and HENRY MORRISON (Leckie's and as such "void and null:" Finds that to take the Trustee), Real Raisers. said order out of the category of such voluntary deeds, Bankrupt-Preference-1621, c. 18-1696, c. 5.-An the claimants J. & J. Lightbody averred that it was order granted, in absence of evidence of a prior agree-granted in implement of an agreement which had been ment, within sixty days of bankruptcy, held to be "null under which they consented to supply Leckie with slates entered into some time before between them and Leckie, and void" under the Acts 1621, c. 10, and 1696, c. 5. and other goods, only on condition of his giving the said THE fund in medio in this case was the amount of an order: Finds, however, that said claimants have failed to prove the existence of any such prior agreement, for account due by the pursuers for slater work done by although they have both deponed to it, Leckie himself Leckie, now bankrupt. Claims were ordered and given has deponed to the contrary, and in that state of matters in. J. & J. Lightbody claimed to be preferred prima the claimants' own oaths cannot be held as conclusive in loco, founding on the following document, which they their own favour: Finds that it was admitted for said averred had been granted by the bankrupt in terms of a claimants at the debate, that they had furnished the previous verbal agreement:-" Glasgow, 20th October, before the said alleged agreement was entered into, the items under date 6th August in the account No. 11/1, 1860. Messrs Muirhead and Curators, please pay Messrs amount of said items fell to be deducted from their J. & J. Lightbody, slate merchants, 24 James Watt claim on the fund in medio; seeing that as regards these Street, Glasgow, on my account, the sum of seventy- items the order must be held to have been a voluntary six pounds ten shillings sterling, for value received by admission, that if J. & J. Lightbody have failed to prove deed: Finds that it follows, upon the principle of this me from them in slates. (Signed) James Leckie, slater. the agreement upon which they found, the whole order Bellshill, 20th Oct., 1860." This was intimated of its is liable to the same objection, and in consequence of the date to the pursuers' factor. Leckie was sequestered on intervening bankruptcy is struck at, and rendered void 31ST MAY, 1864. SHERIFF COURT, LANARKSHIRE-GLASGOW., (SHERIFFS SIR A. ALISON AND GLASSFORD BELL.) | and null by the Act 1696: Finds that the claimant Morrison claims to be preferred as trustee for the general body of creditors under Leckie's sequestration, the fund in medio being undoubtedly a part of the bankrupt estate, if it was not carried away by said order to the claimants J. & J. Lightbody: Finds, for the reasons already stated, that said order was rendered inoperative by sequestration having ensued within sixty days: Finds it therefore unnecessary to give any deliverance on the objections which have been stated by the claimant Morrison to said order, on the ground that it is neither holograph nor tested, and that it is not duly stamped, and that the intimation to the factor M'Creath was inept, he not being the party with whom Leckie had contracted, or to whom the order is addressed: Dismisses the claim for J. & J. Lightbody, and prefers the claimant Morrison to the fund in medio, and authorises the Clerk of Court to pay over to him the consigned fund of £73: Finds the claimants J. & J. Lightbody liable in expenses to the claimant Morrison; allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns. NOTE.-The Sheriff-Substitute is of opinion that the proof establishes nothing more than that, after the whole slates and other materials required for the job which Leckie had contracted for to the pursuers had been supplied to him by J. & J. Lightbody, they refused to give him farther goods on credit, unless on condition of getting the order from him, No. 15. The granting of that order, therefore, was not obligatory on Leckie, and if it was not, he could not by its means put J. & J. Lightbody, within sixty days of his bankruptcy, in a better position than his other creditors. Had a different view been taken on this part of the case, some questions of nicety would have remained behind-touching the validity of the order-seeing that no sum was actually payable to Leckie at the time the order was granted, and that it is nevertheless impressed only with the penny stamp, applicable to drafts or orders "payable on demand;" and also, seeing that, although addressed to "Miss Muirhead and curators," in whose name this multiplepoinding has been raised, it was admittedly never intimated to them, but only to their factor, who is not proved to have been in possession of the fund. This Interlocutor was appealed, and after a hearing, the Sheriff pronounced the following judgment: Having heard parties' procurators under the appeal for the claimants Lightbodys, upon the Interlocutor appealed against, and made avizandum, and considered the record, proof adduced, productions, and whole process, for the reasons stated by the Sheriff-Substitute, adheres to the Interlocutor appealed against, and dismisses the appeal. NOTE.-The point brought up here is, whether the agreement said to have been entered into between the claimants Lightbodys and Leckie, the bankrupt, has been validly proved by the oaths of the two Lightbodys, who say that the order or assignation No. 15 was granted for a new debt, and not as a security for a prior one, contradicted as they are by the oath of Leckie, who granted the order. The Evidence Act unquestionably allows parties to a suit to be examined as witnesses in the cause; but that of course is under reservation of all questions as to their credibility: and it is universally known how much the oaths of parties, even the most respectable, are liable to be influenced by their unavoidable prepossession in their own favour. Leckie says the order was written by Lightbody-Lightbody says the order was not written by him, but by Hamilton, his clerk, and this is corroborated by Hamilton, who says he wrote it. In these circumstances, it seems impossible that the oaths of the Lightbodys are to prevail. On the merits, the order in question was here granted confessedly within the sixty days of Leckie's bankruptcy, or, at all events, the sequestration was awarded within sixty days after the intimation of the order, and of course it can only be sustained if it is proved to have been granted in implement of a novum debitum, not in security of a prior debt. No value had been received at the time the security was granted: it was to be given after. Burton (p. 242) says, in such circumstances, the security is struck at by the Act 1696; and Mr Bell in his Commentaries (Vol. ii., p. 226, 5th edition) gives the same opinion. At pp. 249, 250, Burton adds that the same was settled by the opinions of the Judges in the case of Mansfield v. Walker's Trustees, 28th June, 1833, affirmed on appeal. The rule seems to be, that if the bankrupt has done omne quoad in se erat to complete the transaction before the sixty days, it is not struck at; but if a necessary step to complete the deed has to be taken within the sixty days, it is liable to reduction. Bankruptcy, actual or constructive, stops or ties up, in Mr Bell's words, the hands of the bankrupt, from the beginning of the sixty days, from doing any act in furtherance of a security of a prior creditor, though under a contract anterior to the statutory period. The case being decided on this ground, it is unnecessary to enter into the pleas of parties either as regards the stamp affixed to the order, or as to the order, although addressed to Miss Muirhead and curators, in whose name the multiplepoinding has been raised, having been intimated only to their factor, in regard to which much might be urged on both sides. SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND GLASSFORD BELL.) Poor-WILLIAM KERR v. George GLENNIE & Co. Reparation-Personal injury-Mutual fault.-An ironmoulder was injured by the overturning of certain moulds filled with liquid metal.-Held, that as both pursuer and defender had contributed to the injury, no damages were due, and defenders assoilzied, but no expenses given. THIS was an action of damages for personal injuries sustained by the pursuer, a contractor iron-moulder, in consequence of the falling of some moulding boxes filled with molten iron, from the alleged defective state of the pit in which the boxes were placed. The Sheriff-Substitute's Note explains the circumstances: Glasgow, 21st March, 1864.-Having heard parties' procurators, and resumed consideration of the proof, productions, and whole process, Finds, first, that the pursuer has failed to prove that the moulding boxes which fell in the moulding pit on the 19th December, 1862, and injured the pursuer, so fell in consequence of the insufficient or defec tive state either of the said pit or of the moulding boxes themselves: Finds, second, that even if the theory maintained by the pursuer had been established, that the boxes were upset in consequence of a vibration of the beam against which they rested, this would not warrant any claim for damages against the defenders, in respect that the vibration was caused by the pursuer himself having unnecessarily placed the barrels which supported the plank on which the pursuer stood, on the wooden casing that surrounded the pit, to which casing the said beam was attached, and from which the vibratory motion was received, whereas if the pursuer had placed the barrels on the solid ground outside the G * |