of the rents, to the same effect as if they had been called as defenders according to the present practice. This would be a most satisfactory and salutary improvement.

It is then provided (sec. 4) that any bondholder in possession under decree of maills and duties may lease the security subjects for five years or under, or (sec. 5) may apply to the Sheriff for warrant to lease for a period exceeding five, but not exceeding nineteen, years. No doubt, leases are granted at present by bondholders, but they are of more than questionable validity. A mortgagee in England can grant valid agricultural and occupation leases for any period not exceeding twenty-one years, and can grant valid building leases for any period not exceeding ninetynine years.

The next sections are the most important in the Bill, and may be quoted in full :

:

6. Any bondholder who has exposed for sale under his bond the subjects comprised in his bond, at a price not exceeding the amount due under the said bond and under any prior bond (exclusive of the expenses attending the exposure or prior exposures), or at any lower price, and has failed to find a purchaser, may apply to the sheriff for an order, in the terms of schedule (C.) hereto annexed; and the sheriff may, after such intimation and inquiry as he may see fit, grant such application and issue an order in said terms, or otherwise he may appoint the said subjects to be re-exposed for sale at a price fixed by him, and in that event the said bondholder shall have right to bid for and purchase said subjects at such sale; and if the said bondholder does so purchase, then the sheriff shall issue an order in the form aforesaid finding the bondholder has right to and is vested in the said subjects as absolute proprietor thereof, and such order shall have the same effect as a disposition by a bondholder to a purchaser according to the present law and practice, and may be recorded in the appropriate register of sasines, with a warrant thereon in favour of the said bondholder.

7. Upon such order being issued and upon consignation of the surplus of the price, if any be, in terms of the Titles to Lands Consolidation (Scotland) Act, 1868, or upon the execution and recording of a certificate of no surplus, in terms of the Conveyancing (Scotland), Act, 1874, the title of the bondholder to the subjects shall be absolute and irredeemable, and the subjects shall be completely disencumbered of all securities and diligences posterior to the security of such bondholder as well as of the security and diligence of such bondholder himself. Provided always that the personal obligation of the debtor shall be reserved in full force and effect so far as not extinguished by the price at which the subjects have been acquired.

We cannot say we entirely like the alternative procedure open to the Sheriff; in nine cases out of ten the Sheriff would prefer to order a re-exposure. Mr. Ferguson's paper proposed a procedure more analogous to that of England, viz., that the Court

should fix a reasonable time within which the debtor might pay up his debt, and if he failed to do so, the Court should at once pronounce a decree of foreclosure whereby the bondholder should become absolutely proprietor of the security subjects. This is more simple. Mr. Ferguson also proposed that the bondholder, by taking decree of foreclosure, should give up all right of action against the debtor on the personal obligations: the Bill retains the personal obligation, so that apparently the foreclosing creditor is both to eat his cake and have it. We do not like this. Presumably the creditor forecloses because he thinks he can make more of the property than the debtor can; he is (it may be not always, but certainly sometimes) getting subjects of considerable value, and we would incline towards the restoration of the original proposal. The matter is one, however, on which the various Faculties might express their opinions.

The remaining clauses deal with the indefeasible title of the bondholder who forecloses; the power of the Sheriff to grant power to a pari passu bondholder to sell pari passu security subjects; confer powers on security holders under the Registration of Leases Act identical with those of ordinary bondholders, and reserve all rights and remedies of bondholders which at present exist. By some oversight the word "Sheriff" is not declared to include "Sheriff-Substitute."

The above brief sketch of Mr. Cross's Bill will show that the Incorporated Law Society is not idle, and that practical legislation for lawyers is actually before the profession in Scotland, andinfluential as it is-it will be the profession's own fault if it does not induce the Scottish members, irrespective of party, to make an effort to get this useful measure through Parliament at an early date.

SUMMARY DILIGENCE ON BILLS AND NOTES. THE privilege of summary diligence on bills is of such manifest utility that it behoves all who deal with, or give credit upon, documents of this class to see that these, if possible, fulfil the conditions entitling such diligence to proceed.

The privilege is of statutory creation. It was introduced into the law of Scotland by the Act 1681, c. 50, which, on the preamble that it was "necessary for the flourishing of trade that "bills or letters of exchange be duly payed and have ready "execution, conforme to the custome of other parts," enacted that a protest for the non-acceptance or non-payment thereof should be registrable within six months after the date of the bill in the case of non-acceptance, and six months after its falling due in the case of non-payment, and a warrant be obtainable for

diligence "sicklike and in the same manner as upon registrat "bonds or decreets of registration proceeding upon consent of "parties." The enactment applied only to "forraign" bills, but by subsequent statutes the benefits of the Act of 1681 were extended to "inland bills and precepts" and promissory notes. The Bills of Exchange Act of 1882, while codifying the law, expressly provided (sec. 98) that nothing in the Act or in any repeal effected thereby should extend or restrict or in any way alter or affect the law and practice in Scotland in regard to summary diligence.

As the law has thus, "for the flourishing of trade," conferred upon bills such peremptory efficiency, so it is very stringent and exact in requiring a precise compliance with the rules which it has prescribed. A bill, though good in every other respect, may be bad for purposes of summary diligence. The following are some of the points which the decisions on this branch of the law illustrate :

I. To entitle a bill to the privilege of summary diligence it must be duly subscribed.—Signature by mark, whether in presence of witnesses or not, will not authorise summary diligence. (Stewart v. Russell, 1815, 18 F.C. 496, and Cockburn v. Gibson, 1815, 19 F.C. 47.) If the granter cannot write, the bill may be subscribed for him by a notary or justice of the peace before two witnesses in the usual way. Such subscription is probative, and will warrant summary diligence.

Signature by initials is also insufficient for summary diligence, as extrinsic proof of their authenticity is required. "Wherever there is need of other evidence to support the bill," said Lord Balgray, "summary diligence cannot apply" (Munro, 1820, Hume, 81).

An acceptance or endorsation by procuration will not warrant summary diligence except when the procuration is notorious (Lowson v. Mathew, 1823, 2 S. 443). Where the question regards the drawing of a bill per procuration the case is so far different, inasmuch as the act of acceptance infers a recognition and adoption of the principal's right; and so (as in Mackintosh v. Macdonald, 1828, 7 S. 155) the acceptor is held barred from objecting to diligence raised in the principal's name.

The signing of the firm name by a partner authorises diligence against any member of the firm, although the name of such member does not appear on the bill (Wallace v. Plock, 1841, 3 D. 1047).

II. The bill must be without alteration or vitiation in essential parts. Thus, it has been decided that an obvious change in the date from 1 to 8 October; and the superinduc

tion or re-touching of a 5 in the date 25th December, it being uncertain whether there had been erasure, made summary diligence incompetent. Where Thomas Watson, the holder of a bill endorsed by mistake to William Watson, "gently obli"terated" William and wrote above, to correct the mistake, Thomas, it was held that summary diligence at the instance of the holder of the bill was incompetent. In another case, where the day of the month was written upon an erasure without the knowledge or consent of parties, the bill was reduced (Armstrong, 1842, 4 D. 1347).

The rule that erasure nullifies is not absolute. Where the bill on the face of it shows that the alteration has been made or assented to by the parties, summary diligence may proceed. Thus, in Sutherland v. Morrison, 1823, 2 S. 394, an objection to a bill that it was vitiated by the date being altered was held irrelevant the alteration having been made by the acceptor before acceptance.

Where an inaccuracy exists in a part not material it may be corrected. Thus, where designations (some of them incorrect) were added to the names of several prior endorsers after the bill had been handed by the last indorser to the holder, it was held that this last endorser could not object to summary diligence at the instance of the holder. The addition was considered a mere memorandum, not affecting the features of the bill, or altering anything contained in it, or the parties signing it (King v. Creighton, 1841, 4 D. 62; 1843, 2 Bell's Ap. 81).

In Thomson v. Bell, 1850, 12 D. 1184, it was held that a bill torn in three pieces and pasted together again was not a document entitled to the privilege of summary diligence. As connected with this head, it may be noted that care should be taken to preserve the bill, as, although diligence issues on the protest, production of the bill may be required to support the charge. Thus, in Muir Wood v. Sibbald, 1820, Hume, 80, where the bill had been lost after the recording of the protest, the charge was suspended.

III. Blanks.-A skeleton bill when completed may be the foundation of summary diligence; but it has to be observed that the repeal of section 10 of the Mercantile Law Amendment Act of 1856 by the Bills of Exchange Act of 1882 does not affect the provision that summary diligence shall not be competent on any bill issued without a date. "Issue" has now been defined by the lastmentioned Act to mean "the first delivery of a bill or note "complete in form to a person who takes it as a holder." The definition of the term was fully discussed in the case of Cameron v. Morrison, 1869, 7 M. 382, where a bill, blank in date, was

handed by an acceptor to the drawer, taken by the latter to a bank, where a date was filled in by a bank official, the bill subscribed by the drawer, and thereafter discounted. It was argued for the acceptor that the bill was "issued" when it came in its accepted form into the hands of the creditor, and that having then been without a date, summary diligence was incompetent; but the majority of the Court held that the bill could not be considered as "issued" before it was drawn, and having been dated before it was drawn that it did not fall within the provision of the Mercantile Law Amendment Act above referred to. The Lord President (Inglis) was of opinion that the bill was not "issued" until it had been filled up and discounted.

It has been decided that where one gives value for an accepted bill not signed by the drawer, he may insert his own name as drawer and use summary diligence (Disher v. Kidd, 1810, Hume, 64; Smith v. Taylor, 1824, 2 S. 627.)

In the case of Fair v. Cranstoun, 1801, Hume, 46, an executor after the death of the drawer had signed a blank bill, not containing the drawer's name, found in his repositories, and Lord Eskgrove "thought the bill a sufficient document of debt and ground of action, but inclined to doubt whether it could support a charge and summary diligence as a bill." In the subsequent case of M'Bean v. M'Pherson, 1806, Hume, 57, a bill had not been signed by the drawer, but bore his name in gremio written with his own hand. It was observed from the bench that the drawer's name so written was as good as his signature at the bottom. Reference, however, to the cases of A. v. B., 1750, M. 1442, and Gillespie, 1831, 10 S. 174, shows that though a name so inserted holograph has been held "equal to a subscription," yet summary diligence cannot proceed, as proof of holograph is necessary, and the writ is not ex facie complete.

IV. Title.—A bill can be protested only at the instance of the true creditor at the time, and his title must be ex facie clear. Wherever the bill and relative documents presented as the ground for decree of registration are not sufficient of themselves to support such decree, but require something that is extraneous and beyond to entitle them to that effect, summary diligence is by the very nature of things incompetent. Every link of the chain connecting the debtor and creditor must be complete.

In the case of Smith v. Selby, 1829, 7 S. 885, a bill had been granted to a woman who afterwards married. The bill passed to the husband jure mariti, but was not endorsed by the wife. The husband attempted to do summary diligence upon it in his own name, but this was held incompetent. In disposing of the case Lord Gillies said, "By recording a protest a fictitious