letter was shown to the pursuers or that the defender's credit was relied on in the transaction, which is evidently contradicted by the written contract itself, which immediately after was entered into between the parties; upon the whole, the present case seems to be one in which the defender bought the ale from a party, whom he had sometimes employed as his agent, as a principal, and which was paid for by him to that party, and an attempt is now made to compel him to pay the price a second time to a third party, the original seller of the goods, but with whom he never contracted. Act. JOHN NAISMITH. Alt. WM. Burns. or through Finlayson, except that the ale was to be shipped, on Steel's account, in a vessel for Antigua, or to be to his order, as Finlayson's place of delivery: Finds that the defender alleges that he bought the ale, which was sold by the pursuers to Finlayson, from him, on the condition that it should be shipped, to his order, for Antigua: Finds that on the same date the entry in the pursuers' day book is in exactly the same terms as the writing No. 8/1, but with the words "Thomas Steel, per," written immediately above the name "A. V. Finlayson," which words, "Thomas Steel, per," are above the score or line forming the space or frame for the entry: Finds that the blotting that is opposite shows that these last words, "Thomas Steel, per," were written at a different time from the rest of the entry, as they alone are blotted out, while the rest of the entry is not so: Finds that a few pages on in the book there is an entry to the effect that Finlayson wished the entry of the sale to be made to Thomas Steel, to enter the same to him, which proves that Steel's name in the original entry, as it now appears, was a superinduction: Finds that no evidence that this alleged change in the contract was made with the defender Steel's cognizance, or his approval: Finds it proved that a bill for £101, which included the £39, the price of the ale in question, was granted by the defender to Finlayson: Finds it admitted that Finlayson has, since he Bill-Renewal-Novation.-A bill was granted and dis received this payment, become bankrupt: Finds it proved by the pursuers themselves that the invoice was sent to Finlayson and not to the defender, and that no copy of it was sent to the defender before 5th May, when Finlayson was insolvent: Finds that the invoices said to have been sent to Finlayson in the defender's name are not produced: Finds that the defender's name appears in the shipping note, per "Isabella," for Antigua: Finds that the defender in his deposition in causa depones that he always dealt with Finlayson as a principal and not as an agent: Finds it proved that the invoice which accompanied the letter by Finlayson, asking the bill for £101, enclosed, included the £39, the price of the ale in question, and that the bill of £101 was accordingly granted and paid: Finds that the correspondence between the parties produced, instructs that on some occasions the defender dealt with Finlayson as principal when Finlayson had the articles wanted, and on others when he had them not, he got the goods from the pursuers: Finds, however, that in the present case, as the contract for the sale of the ale in question was in writing, and was exclusively between the pursuers and Finlayson, without any mention of the defender, and a subsequent purchase of the ale by the defender from Finlayson, and payment of the price having been made to him, that in these circumstances it is proved upon the whole that the pursuer's contract was with Finlayson, and that their claim lies against him and not the defender, and that Finlayson's subsequent sale of the same ale to the defender has been paid for and satisfied: Therefore, alters the Interlocutor appealed against, sustains the defences and assoilzies the defender from the conclusions of the action: Finds the defender entitled to expenses, of which appoints an account to be given in, and remits to the auditor to tax the same and report, and decerns. NOTE. The accounts of the transaction in question, given by Finlayson after his bankruptcy in his examination-in-chief, and in his cross-examination, are directly contradictory to each other, and the Sheriff is driven to determine to which of the two credit is to be given, by considering which is most supported by other evidence, and especially the written contract and invoices in process. These appear distinctly to prove that the original contract, to which alone the pursuers were a party, was with Finlayson alone, and that the subsequent verbal sale of the ale to the defender by Finlayson, was by him as principal. Finlayson says he was responsible for the price to the pursuers, and so he undoubtedly was, as the original buyer from them, and he adds that his whole interest in the subsequent sale to the defender was a commission of 2 per cent. as the defender's agent. The document No. 6/5, which Finlayson says was shown to the pursuers when they hesitated about letting Finlayson have the ale except for cash, does not prove that it was the defender's credit which was relied on in the original sale by the pursuers, because if that had been the case the original entry of the sale in the pursuers' books would have been in the defender's name, or in Finlayson as his agent, whereas it is in Finlayson's alone. It only proves that the defender had given Finlayson private instructions to buy the ale, as a private matter between them, but it is inconceivable that Finlayson was speaking truly when he said that this 4TH FEBRUARY, 1864. SHERIFF COURT, KINCARDINE. (SHERIFFS SHAND AND J. DOVE WILSON.) WILLIAM MELVIN v. JAMES ROSS. counted by a bank; at maturity another bill was granted and also discounted by the bank. On the back of the first bill was written, "paid by renewal," and signed by the bank agent. The acceptor's (defender's) name on this second bill was a forgery-it was endorsed by the pursuer. When due, the pursuer had retired it, and raised this action for payment, founding on the original bill. The defender pleaded (1) That the bill was finally discharged when the renewal bill was granted; and (2) That the bank and the pursuer (without his knowledge) had made an arrangement with the acceptor, by which they agreed to give time (during the currency of the bill), whereby his right of recourse on the original bill was lost or injured—Held, (1) That the first plea was bad, and repelled; (2) That the second plea was good-the same sustained, and action dismissed. THE summons concluded for payment of £31 contained in a bill drawn by the defender upon, and accepted by, James Molyson, and blank endorsed by the defender to the pursuer, dated the 22d February, 1861, and payable two months after date, with the interest thereof, at the rate of £5 per centum per annum, from the 25th April, 1861, when the said bill became due and payable, till payment, with expenses. The bill on which the pursuer sued was found, when produced, to have been blank endorsed by him, and to bear on the back of it a receipt by the Bank of Scotland's agent at Stonehaven, stating that on 8th July, 1861, (some time after the bill fell due) it had been "paid by renewal of £30 15s." The pursuer stated that the renewal bill (which had been accepted by the acceptor of the original bill) having been dishonoured, he was ultimately obliged to pay the amount of the original bill to the bank. This statement was denied. The Sheriff-Substitute pronounced the following Interlocutor: The Sheriff-Substitute having heard parties' procurators on the closed record, before farther answer, allows to both parties a proof of their respective averments on record, so far as denied or not admitted: Grants diligence, etc. NOTE. At the debate, the pursuer mentioned that he was entitled, as holder of the bill libelled, either to have decrce at once for the sum sued for, or to have the defender limited to proving his defence by writ or oath. On examining the bill, however, it bears to have been "paid by renewal" to the endorsee of the pursuer, and on looking to the record it will be found that the pursuer's explanations of the terms on which that was done, and of the way in which the bill was returned to his hands, are all denied. The pursuer is therefore not in the position of a person who stands simply as holder of an unblemished bill, and it seems accordingly competent to allow a proof at large of all the circumstances, in so far at least as they are connected with the alleged renewal of the bill, and its alleged retirement. It is possible that in taking the proof some evidence may be led, to which it may afterwards be found impossible to give effect; but it would be ultimately attended with greater inconvenience to endeavour now to restrict the extent of the proof, instead of taking all the evidence at once, and using it afterwards for what it may be worth. Till the proof shall have been led, the Sheriff-Substitute abstains from farther observations on the case. a renewal of the bill libelled on, and thereupon a marking in the following terms was made on the bill libelled on, namely, "paid by renewal of £30 15s on 8th July, 1861, (signed) James S. Read, p. agent." And at the same time an entry was made in the local bill book of the bank, in terms of the excerpt, No. 10 of process, to the effect that the bill libelled on had been paid on 8th July, 1861. (7) Farther, that the bill libelled on was left in the bank's hands, not as a collateral security, or under any arrangement to the effect that the bank or the pursuer should be entitled to make the same available by action or diligence, but per incurium on the part of Molyson. (8) That on the renewal bill falling due, it was dishonoured by the acceptor, and was ultimately retired by the pursuer on or about 10th March, 1862, when it was given up to the pursuer, who also about the same time got up from the bank agent the bill libelled on, which had till then Both parties appealed, and the Sheriff thereafter pro- remained in his hands. (9) That thereafter, on 8th February, nounced the following Interlocutor: Having considered the Interlocutor appealed from and whole process, with the appeals of parties, dismisses the appeals, and adheres to the said Interlocutor. NOTE.-The Sheriff concurs with the Sheriff-Substitute for the reasons stated by him in thinking that the pursuer is not entitled to decree de plano, and that he must prove the facts alleged as an explanation in reference to the marking on the back of the bill, to the effect that it was "paid by renewal." On the other hand, it does not appear to the Sheriff, looking to the peculiar nature of the defender's averments, that the case falls under the rule which received effect in the case of Martin v. Smith, 8th December, 1854, 17 D. 113, and is noticed in Menzies on Conveyancing, page 316, as to the legal presumption from a general marking of payment on a bill. (1) Because the marking in this case paid by renewal" is special, and requires explanation, and (2) because the defender not only does not say that he paid the bill, but does not directly aver that it was retired, either by Molyson, the acceptor, or with his funds. As found in point of fact by the Sheriff, the proof established (1) That the defender signed the bill libelled on, dated 22d February, 1861, for the sum of £31, and payable two months after date, as drawer, for the accommodation of the acceptor, James Molyson, and that the pursuer thereafter endorsed the bill at the request of the acceptor, and without value, in order to enable the acceptor more readily to get the same discounted at the bank. (2) That thereafter, and on or about the said 22d February, 1861, the bill was discounted at the branch of the Bank of Scotland at Stonehaven by the acceptor, who obtained the amount of the bill less the discount, and applied the same to his own purposes. (3) That when the bill fell due on 25th April, 1861, it was dishonoured, and notice of the dishonour was duly given by the bank to the pursuer and the defender respectively. (4) That after the bill fell due, and while it was lying dishonoured at the bank, the acceptor, Molyson, procured the signature of the pursuer, as endorser to the bill No. 15 of process, which having been signed by Molyson, and endorsed by the pursuer while blank, was afterwards filled up as an acceptance for £30 15s, payable two months after date, and dated 8th July, 1861. (5) That the pursuer signed the bill or blank stamp last mentioned as endorser, in order that the same should be used by Molyson, the acceptor, to retire and supersede the bill libelled on, and he did so in the belief that the defender had previously signed the same as drawer, but the defender had not done so, his name having been forged. (6) That on or about 8th July, 1861, the acceptor, Molyson, in terms of his arrangement with the pursuer, but to which the defender was no party, presented the last mentioned acceptance to the agent of the Bank of Scotland at Stonehaven, and the same was taken as 1862, the pursuer for the first time demanded payment from the defender of the contents of the bill libelled. The Sheriff-Substitute pronounced the following Interlocutor: The Sheriff-Substitute having heard parties' procurators on the closed record, and proof adduced, assoilzies the defender from the conclusion of the action, and decerns: Finds him entitled to expenses, etc. NOTE. The facts of this case, which did not appear distinctly on the record, are now sufficiently clear from the proof. The original bill, when the renewal bill was granted, was endorsed by the bank-"Paid by renewal," and the endorsation was signed by the bank agent's clerk. Before the proof was taken there was some doubt what the meaning of this endorsation was, but it is now clear that, in so far as the bank at least was concerned, it was intended as a final discharge of the bill. The bill was still retained by the bank, but it was retained accidentally-Molygon being careless, and not choos ing to ask for it. The agent is distinct in saying that it was not held as what is sometimes called a collateral security. If the acceptor had asked for it he would have got it, and he might have destroyed it if he had pleased. He forgot to ask for it, and it thus lay in the bank's premises. When the pursuer retired the renewal bill, search was made for the original bill, and he got it from the bauk for the purpose of enforcing it against the defender. The Sheriff-Substitute is of opinion that the pursuer is not entitled to recover in this action. The defender objects to the pursuer recovering, upon two grounds: (1.) That the bill was finally discharged when the renewal bill was granted; and (2.) That the bank and the pursuer (without his knowledge) made an arrangement with the acceptor, by which they agreed to give time (during the currency of the renewal bill), whereby his right of recourse on the original bill was lost or injured. The plea that the bill was finally discharged seems to be under essential error as to the genuineness of the defender's disposed of by the consideration that the discharge was given signature, and by a reference to the well-known principle that when an account or other debt is discharged as having been paid by bill, the debt revives if the bill is invalid. Now, it seems clear to the Sheriff-Substitute, that if the renewal bill had not been paid, or if the forgery had been discovered during its currency, the bank would have been entitled (if they had chosen) to have thrown it aside, and to have recovered as against Molyson and the pursuer, at least on the original bill. The circumstance that the bank had retained the original bill by an accidental piece of good fortune, rather than by design, does not seem to have any weight in this question. The Sheriff Substitute being of opinion that the original bill was not finally discharged, it is necessary for him to examine the second objection. He has come to the conclusion that it is well founded. The question is whether the defender was freed by the arrangement by which the acceptor obtained time. Had there been any transaction by which the holder was conclusively bound to have given the acceptor credit during the currency of the second bill, it would have been beyond doubt that the defender would have been relieved. If, for example, the bank had taken a bill containing only the acceptor and the pursuer's names when the discharge on the original bill was granted, the defender would clearly have been discharged; because during the currency of the renewal bill the bank could not have assigned the original bill, so as to allow the defender, if he wished, to pay it, and operate, under it, his relief from the acceptor, and so end the obligation. In the present case the difficulty is that there was no binding agreement to give the acceptor time. The bank had been deceived into granting time, but it had not bound itself beyond recall. On the contrary, the arrangement could have been put an end to at any moment. The defender knew, from the notice of the dishonour, that the bill was with the bank, and if he had gone then to ask for it, the forgery would have been discovered at once-the forged bill might have been thrown aside, and the original bill might have been put in operation. The only loss that the defender would in that case have suffered would have been that he might have required to sue by ordinary action in place of using summary diligence-a disadvantage of course not always equivalent to the loss of remedy. It is these considerations which render the question difficult. The Sheriff Substitute, however, thinks that the difficulties which the arrangement between the holder and the acceptor, with the concurrence of the pursuer, made in the way of the defender freeing himself from his original obligation, by payment, were such as to entitle him to be free at once. They did not, it is true, absolutely cut off his right of action for recourse, but they almost rendered it worthless. Had the defender gone to the bank, they would doubtless have taken payment and assigned both bills; but before the defender could recover from the acceptor on the original bill, it would be necessary for him to raise an ordinary action and assume the burden of explaining away the endorsement, "paid by renewal," and of showing that the renewal bill was a forgery. This would have so impeded his right of recourse, that he would most likely have found it worthless. The arrangement made involved delay and expense to the cautioner in operating his relief; and it seems just to hold, that where the creditor makes such an arrangement with his debtor, without the cautioner's concurrence, the latter is free. Not to hold the defender free in this case might lead to curious results. Had the acceptor gone one step farther and got up the original bill from the bank, and destroyed or perhaps given it to the defender, it could not have been contended that the defender would not have been free, and yet it is difficult to see that the mere circunstance of the acceptor neglecting to do what it was intended he should have done should make any difference in the right of other parties. Or suppose that, in place of a renewal bill at two months, the bank had taken one at two years, or had taken a bond to last a much longer time, with the defender's name forged to it, could he have been kept bound all that time without his knowledge? This would make it more advantageous for the holder to have taken a bill with a forged signature to it than to have taken a bill signed by the acceptor and the pursuer without any forged additions. Now the defender's name was forged because he declined to be longer bound, and to hold him bound in spite of that, would be to attribute the same force to his forged as to his genuine signature. The acceptor was unable to persuade the defender to remain longer security for him. For the fraud by which the acceptor prevailed on the pursuer to continue his security the defender was not responsible, and the results of his permitting himself to be defrauded must be borne by the pursuer himself. It is, however, by no meaus without difficulty that the Sheriff-Substitute has reached this conclusion. The pursuer appealed. The Sheriff pronounced an Interlocutor finding in point of fact, in the terms above narrated, and then proceeding- Finds, in these circumstances, in point of law, that the pursuer is not entitled to recover the contents of that bill, but that the defender was freed from his liability therefor by the arrangement made with the bank, as above set forth, or at least by that arrangement and the lapse of time which subsequently took place before any demand for payment was made against the defender: Therefore, and with these findings, adheres to the Interlocutor complained of, assoilzing the defender from the conclusions of the action, with expenses, and dismisses the pursuer's appeal. NOTE. The preceding findings embody the grounds on which the Sheriff has arrived at the conclusion that the defender is entitled to be assoilzied from the conclusions of the action. It is not disputed that the bank could have compelled the defender to pay the bill libelled after it was dishonoured on 25th April, 1861, or that if the pursuer had then retired it under any arrangement by which he had stipulated that he should get it up to be used for action or diligence, he in like manner could have enforced payment from the defender. But, unfortunately for the pursuer, he was deceived, and became a party to a different arrangement. Believing that the defender had signed a renewal of the bill in question (or at least a blauk stamp to be filled up as a renewal), to be used in retiring and superseding it, he signed his name as endorser on the back of the proposed renewal bill, leaving it with Molyson, the acceptor, that he might use it in the ordinary way by discounting it at the bank, and taking the first bill up. Molyson accordingly used the renewal bill as it was intended he should do. He retired the bill libelled with it. It was expressly marked as paid in the terms above noticed, and the Sheriff is satisfiel from the evidence that it was merely by accident that it was not taken up by Molyson and destroyed, but was left with the bank. The probable explanation of its being left is, that Molyson had come to the bank after ordinary business hours-had left the new stamp, and paid the interest and discount, and had not got up the bill in question only because the bank's repositories were closed for the day. The question raised is, what was the effect of this arrange ment in reference to the defender, and the Sheriff has come to the conclusion that its effect was to relieve the defender of liability. The pursuer and the bank were misled, no doubt, in supposing that the renewal, as well as the original bill, bore the defender's signature, but for this the defender is in no way responsible. The result was, that being so misled, they agreed to supersede the first document entirely, and to substitute another for it, by which the defender was not bound. The arrangement concluded was, that the first bill should be retired as being paid by the renewal. The bank did not stipulate that they should retain the first bill as a collateral security, with power, notwithstanding the existence of the second, to enforce the first against all the parties to it if they thought fit; nor did the pursuer stipulate that the first bill should be given to him, or made available to him in any way; indeed, his belief was that the renewal gave him the same security as the first. The Sheriff thinks that the effect of the arrangement entered into was to supersede and extinguish the first bill; it was held as paid, and could not thereafter be used as a ground of pursuit against the defender. That the bank, on discovering the forgery, could at once have taken measures against Molyson, who had deceived them, to compel immediate payment of the advance they had originally made to him on the first bill, is clear, but the Sheriff does not see that, after the arrangement they entered into, they could have proceeded against the defender, or that they could have made any claim against the pursuer except for payment of the renewal bill when it fell due. The ground of judgment above stated is, if well founded, sufficient for the disposal of the case. But, farther, the cir cumstances which occurred in addition to the arrangement between the bank and Molyson are such as, in the opinion of the Sheriff, should free the defender from responsibility, even if the arrangement of itself did not do so. It appears that after the bill fell due, and notice of dishonour had been received by the defender, the defender went to Molyson on the subject, who told him it was settled, and to give himself no more trouble on the subject. This was shortly after 25th April, 1861, and the defender heard no more of the bill in question till he received the pursuer's agent's letter of 8th February, 1862, having, however, in September, 1861, received notice of the dishonour of the renewal bill, to which he replied, denying all liability, on the ground that he was no party to it. The Sheriff thinks that if the arrangement entered into with the bank, and to which the pursuer must be held to have been a party, combined with the fact that in consequence of that arrangement no claim against the defender was made on the bill in question till February, 1862, did not relieve the defender from liability, he would suffer manifest injustice. Having received the original notice of dishonour from the bank, it may be that he was not entitled, by the mere lapse of time, without further demand for payment, to assume that the bill was retired. But when the delay was caused by a positive arrangement between the parties, which prevented the bank or the pursuer from applying to him, and so led to his taking no steps against the acceptor till it would have been useless to do so, the case is altered, and the Sheriff thinks the defender is entitled to be free from his original liability. The case is one not without difficulty, and there is hardship in a decision either way. But the pursuer was the party who, relying on Molyson, was deceived in entering into the renewal transaction, and it does not appear to the Sheriff that, either in law or in equity, he can succeed Alt. J. CROCKATT. in the claim which he makes in this action. Act. G. S. Caird. 8TH FEBRUARY, 1864. SHERIFF COURT, KINCARDINE. (SHERIFFS W. A. BROWN AND J. DOVE WILSON.) In Petition-JAMES WESTLAND for Sequestration of the Estates of WILLIAM MURRAY. The Sheriff Substitute having heard parties' procurators on the objections lodged for the respondent, and considered the closed record, whole process and productions, for the reasons stated in the annexed Note, repels the 1st, 2d, 4th, 5th, and 6th objections: Finds it is alleged by the respondent, that he has not resided within the county of Kincardine for the year preceding the date of the present petition for sequestration: Finds that the assignation produced in process is prima facie evidence that the respondent has not had a place of business within said county since the month of January last: Finds that the present petition for sequestration is dated 20th August, 1863: Finds in law, that sequestration of the estate of a debtor cannot be awarded in the Sheriff Court on the petition of a creditor, unless said debtor shall have resided or had a place of business for the year preceding the date of the petition for sequestration, within the Sheriff's jurisdiction: Finds, therefore, as to the third objection, that it cannot be disposed of without an inquiry into the fact: Allows the respondent a proof of the facts stated in said objection, and appoints him to proceed with his proof within the Court House at Stonehaven, on Tuesday, the 15th day of Sept. current, at 11 o'clock a.m.: Allows the petitioner a conjunct probation, and decerns. NOTE. The Sheriff-Substitute has felt no difficulty in repelling these objections to the extent that he has done. At the debate they were forcibly argued by the respondent's agent, and they have in themselves a certain look of plausibility; but after a careful consideration, the Sheriff-Substitute ap-founded. The Sheriff-Substitute readily gives assent to the is satisfied that, with one exception, they are not well Bankruptcy-Sequestration Bankruptcy (Scotland) Act, 19 and 20 Vict., cap. 72 (1856)-Domicil-Residence. A creditor presented a petition for the sequestration of an insolvent debtor. The debtor entered appearance, and objected, inter alia, that he had not resided in the county for the year preceding the dute of the application. Circumstances in which held that the debtor had not resided within the county when the plication had been made, and sequestration refused. IN August last, this petition was presented for the sequestration of the respondent, when he was described as farmer at Mill of Barus, Kincardineshire, and as having, for the year preceding, resided or carried on business within the county. The respondent gave in the following minute of defence: The respondent's procurator stated that the defence was-(1) That the respondent was not, and had not, since 3d January, 1863, been farmer at Mill of Barns, and was not, therefore, properly designed in the petition; (2) That the respondent had not resided at Mill of Barns since the month of April last, and had no dwelling house or domicile there, and that the citation left at that place was consequently inept; (3) That the respondent had not resided in the county of Kincardine for the year preceding the date of the present application, and that the Sheriff of that county had therefore no jurisdiction; (4) That the bill which alone was founded on as the voucher of debt claimed in the affidavit, produced with the petition, had not been lodged when the application had been made, and was not even yet lodged; (5) That no intimation of the diet of compearance on the petition had been made in the Gazette, as directed by the statute, and by the warrant pronounced on the petition; (6) That the warrant itself had not been properly advertised, the advertisement not being authenticated by the petitioner or his agent. Along with the minute, the respondent produced an assignation of his lease of the farm of Mill of Barns in favour of his son, dated 3d January, 1863, duly intimated to the landlord two days afterwards, and (as argument that was submitted to him, that the provisions of the Bankrupt Statutes are to be applied strictly. Such a consideration would probably be more convincing if urged by a person with a smaller interest in raising difficulties than the has been careful not to construe this circumstance unfavourrespondent has in the present case; but the Sheriff-Substitute ably to him-in law, he is not entitled to do so. The SheriffSubstitute repels the first objection for two reasons-(1) because, excepting the respondent's averment that he has not been farmer at Mill of Barns since the 3d of January, 1863, there is nothing to show that he has been put to a disadvan tage, or that any person having an interest could be misled by the designation in the petition, and designation is not intended to serve any other purpose but clearly to establish the identity of the person named; (2) because, as will afterwards be more particularly referred to in considering the second objection, citation, under the Bankruptcy Act, is held to be sufficient if made at the last dwelling-house or place of business occupied by a debtor sought to be sequestrated; and it is not maintained that the respondent has had any other place of business since he was farmer at Mill of Barns, though both these alternatives are not exhausted by the respondent's it is alleged that he has had another dwelling-house. As case, the Sheriff Substitute conceives that the designation given in the petition is sufficient. The second objection is repelled because the Sheriff-Substitute is of opinion that the citation of the respondent was validly made at Mill of Barns. Sect. 16 of the Bankruptcy Act provides that citation on a petition for sequestration may be made at the dwelling house or place of business of the debtor, or the dwelling house or place of business last occupied by him. It is alleged in the present case that the respondent has not had his dwelling house at Mill of Barns since April last, and it is admitted that he is now a prisoner in Perth. It is not, however, pretended that Mill of Barns was not the might be competently cited there for the purpose of the last place of business of the respondent-that being so, he Bankrupt Act, even though his domicile were elsewhere at the date of the petition. Further, the Sheriff-Substitute is disposed to hold, although he does not expressly decide, that is validated by consent. by the appearance of the respondent, the citation, if defective, Such a principle is familiar to the civil as opposed to the criminal law, and its application would voucher prima facie good, and it has been repeatedly decided that no objection not capable of being instantly verified ought to be admitted. No doubt the respondent says, with some plausibility, that he is excluded from such objections by failure to produce the bill. But the extract registered protest, is prima facie evidence at least that no objections could be taken. Further, the terms of the bill are in gremio of the extract registered protest. The fifth objection is one which the Sheriff-Substitute cannot give effect to in the mouth of the debtor himself, who was personally cited to appear, and has through his agent obeyed the citation. The object of the Gazette notice is to give publicity to the proceedings contemplated in the sequestration, and it will be time enough for the Sheriff-Substitute to entertain such a purely technical objection when it is suggested that any person possessing a substantial interest has, by any deviation from the statutory form, been placed at a disadvantage. Some conversation passed at the debate as to the existing practice in the terms of the Gazette notice, and the SheriffSubstitute finds, upon inquiry, that it is very unequal, the diet of compearance being mentioned in some and not in others, with a growing tendency, as is very desirable, to satisfy the strict letter of the statute. The Sheriff-Substitute finds nothing in the statute authoris ing the conclusion that the intimation in the Gazette is to be made by any person in particular. He has already disposed of the question of the substance of the intimation. He is satisfied that no reasonable objection lies in regard to the manner of it, and he therefore repels the sixth objection. The respondent appealed to the Sheriff against this Interlocutor, and craved to be heard orally. When the case came in for hearing, the Sheriff expressed doubts of the competency of the appeal. Upon this it was abandoned. seem to be particularly in harmony with the policy of the bankrupt laws. The third objection strikes at the jurisdiction of the Court, and is the most serious of the whole. It is raised under sect. 18 of the Bankrupt Act, which provides that sequestration may be awarded either by the Court of Session, or by the Sheriff of any county in which the debtor, for the year preceding the date of the petition, has resided or carried on business. The application of this clause made by the respondent is, that having resided out of the county of Kincardine since the month of April last, and having had, since the month of January last, no interest in the farm at Mill of Barns, he does not fall within the limits of the statutory jurisdiction. Now, the section of the Act founded on does seem at first sight to favour the respondent's objection, and after a careful consideration, the Sheriff-Substitute does not see how, if the facts are as stated, it can be avoided. The 13th section, where the words, "within a year before the date of the presentation of the petition, resided or had a dwelling house or place of business in Scotland," occur, does not seem to the Sheriff-Substitute to raise any difficulty in the construction of the 18th, as is implied by Mr Kinnear in his Treatise on Bankruptcy. The two are quite reconcilable, if attention is paid to the fact that in the previous section the Act is dealing with the jurisdiction of the Supreme Court, while in the latter it is dealing with the jurisdiction of both combined. Certainly nothing in the 13th section is any authority for holding that a debtor may be sequestrated in the Sheriff Court, who has at any time within a year-that of course includes a single occasion-resided, or had a place of business within the Sheriff's jurisdiction. But while the 13th section of the Act seems to throw but little light on the subject, some assistance may be obtained from a perusal of the 19th. That clause makes provision for the case, where sequestration has been awarded against the same debtor in two counties, and appoints that the later sequestration is to be remitted to the Sheriff of the first. Now, one thing at least is clear, that a person cannot reside continually for a year in two counties at the same time, and that circumstance is sufficient to eliminate at least one construction of the statute as an impossible one, namely that continuous residence for a year within the county is rendered as an indispensable condition of sequestration. If that were so, a person could not be sequestrated in two counties at the same time, and by section 19 that is possible. Section 19 is important, therefore, in this way, that it introduces the possession of a place of business, apart from residence, as a ground of seques-proof further disclosed that, in the month of April, the tration. But still section 19 does not decide the difficulty, respondent had left the county, and had since been residbecause it does not define the extent of either of the two alter- ing first in one and then in another small village in natives. Must the residence be continuous? Must the place Perthshire. The petitioner contended that the responof business be continually possessed? The Sheriff-Substitute is of opinion that a fair construction of the statute leads to the dent could have had no other object in doing this than conclusion that continuity in both of these respects is contem- avoid the diligence which was then threatened:plated for a year preceding the petition. But there is no continuity to that extent in the present case, if it be true that the respondent has not resided at Mill of Barns since April, and since the month of January has had no interest in the farm at Mill of Barns. What continuous residence or continuous possession for a year is, might come to be a nice question in some circumstances, but no such question of construction can arise in the present case, when five months in the year are deducted as to the one, and eight as to the other. The residence of the respondent without the jurisdiction is distinctly alleged. His having ceased to have a place of business is not made matter of distinct averment, as it strictly ought to have been, but the Sheriff-Substitute accepts the production of the assignation as constituting that a part of the respondent's case. Whatever the ultimate fate of the assignation may be, the Sheriff-Substitute is constrained at present to give it such effect. Prima fronte-it is a valid deed; it purports to proceed upon onerous causes; it is a divestiture by the respondent of all his effects, and, prima facie, there is no evidence of assignation retenta possessione, because it is made a part of the respondent's case that soon after the assignation was completed he acquired another residence. As the Sheriff-Substitute, therefore, is of opinion that the facts stated by the respondent exclude his jurisdiction, he cannot proceed without an inquiry. But jurisdiction is to be presumed, and the burden of disproving it must be borne by the respondent. The Sheriff-Substitute repels the fourth objection without any difficulty. All that is necessary to support a petition is a The proof disclosed that the respondent had at the time alleged (3d January, 1863) assigned the lease and given up the management of his farm to his son. The witnesses who spoke to this transaction were cross-examined by the petitioner with the view of showing that it had been fraudulently entered into for the purpose of defeating the rights of the respondent's creditors. The The Sheriff-Substitute (J. Dove Wilson) pronounced the following Interlocutor: The Sheriff-Substitute having heard parties' procurators on the closed record, and proof adduced, Finds that the respondent has not resided or carried on business for a year preceding the date of this petition, within the county of Kincardine: Therefore Finds that this Court has no jurisdiction, and refuses the petition as incompetent: Finds the respondent entitled to expenses, of which allows an account to be given in, and when lodged, remits the same to the auditor to tax and report, and decerns. NOTE.-The respondent has succeeded in proving that he neither resided nor carried on business in this county for the year preceding this petition, in the manner necessary to give jurisdiction under sect. 18 of the Bankruptcy Act. It is proved beyond doubt that for some five months before the petition was presented, the respondent was out of the county, residing in Perthshire. It was contended by the petitioner, that (notwithstanding this) the respondent's domicile was within the county, and that this Court had jurisdiction on that ground. The Sheriff-Substitute is satisfied that the legislature did not intend in the Bankruptcy Act to make the jurisdiction to award sequestration depend in any case upon the determination of such a delicate question of circumstances as the question of domicile frequently is. Had the legislature intended to make the matter depend on domicile, it is enough to observe that it would have used that word |