this state of matters, and within sixty days of the date when said acceptance was granted, viz., on the 26th October 1869, William Marshall & Co. became bankrupt, and their estates were sequestrated in terms of the Bankruptcy Acts; (7) And that the pursuer is trustee confirmed on the sequestrated estates of William Marshall & Co., and as such represents parties who were creditors of that Company prior to the 3d of September 1869, when the acceptance above mentioned was granted by them to the defenders as aforesaid: Finds in these circumstances, that in law the said acceptance, and the transaction whereby the same was granted to the defenders, and afterwards retired as aforesaid by the bankrupts William Marshall & Co. are null and void, or at least reducible under the Act 1696, c. 5, as having been voluntarily made and entered into by the said William Marshall & Co. within sixty days of their bankruptcy for the satisfaction or security of the defenders in preference to other creditors: Therefore, Reduces, Decerns, and Declares in terms of the reductive and declaratory conclusions of the summons; and also decerns against the defenders for payment to the pursuer of the foresaid sum of £975, with interest at the rate of 5 per cent. per annum from the 27th of September 1869 till paid: Finds the pursuer entitled to expenses, allows an account thereof to be lodged, and remits it, when lodged, to the auditor to tax and report.

Note.-Upon a full and careful consideration of the circumstances of this case, the Lord Ordinary has been unable to arrive at any other conclusion than that the transaction challenged is of the nature of an illegal preference under the Act 1696, c. 5, against which the pursuer, as representing Marshall and Company's creditors, is entitled to be restored.

Not

"At the date when the bill or acceptance in question was granted to the defenders they were creditors of the bankrupts Marshall and Company, under the charter-party libelled, to a large amount, no part of which, however, was then due, and that the granting of the acceptance was a voluntary act on the part of the bankrupts, in the sense of the statute 1696, c. 5, cannot well be disputed, for they were under no antecedent obligation to grant such an acceptance. That the acceptance was granted for the satisfaction or security of the defenders seems clear enough, and, indeed, is so expressly acknowledged in the letters which passed between the parties at the time, and which are set out in article 3 of the pursuer's condescendence. only so, but Mr Somerville, the partner of the defender's firm who managed the transaction for them, after stating in the course of his examination as a witness for the defenders that the bankrupt William Marshall, after failing to find such a security as was at first contemplated, goes on to say, 'On 3d September he (Marshall) granted a bill for £1000 at fourteen days' date. He himself proposed that as a substitute for the security.' That the transaction was and must also be held to have been of the nature of a preference in favour of the defenders over others of their creditors appears also to the Lord Ordinary to be sufficiently established, for, by and in consequence of the transaction the defenders succeeded in obtaining payment to the extent of £975 of their claims, in place of being left to their ranking in the bankrupts' sequestration along with the other creditors. And that this preference was conferred within sixty days of the bankrupts' sequestration, and therefore

within the period of Marshall and Company's constructive bankruptcy, is plain enough. It has been proved that, at the date when the acceptance was granted Marshall and Company had creditors who continued to be their creditors at the date of their sequestration. It was moreover in consequence of the fears entertained of Marshall and Company's solvency, or ability to meet their engagements, which fears turned out to be well-founded, that the transaction was entered into and completed.

"There thus appears to be in this case all the elements necessary to make out such a preference as is struck at by the Act 1696, c. 5. Nor does it bring the case from under the operation of the statute that the transaction took the shape of a bill or acceptance by the bankrupts in favour of the defenders, which was retired and paid at maturity, for it has been repeatedly held that such a mode of effecting a preference may be equally a contravention of the statute as any other, where, as in the present instance, the bill and payment were not granted aud made in the ordinary course of trade, but resorted to expressly for the purpose of securing to the defenders payment or security pro tanto of a debt not then due to them, and payment of which they could not then have demanded and enforced.

"But, on the part of the defenders it was contended, as the Lord Ordinary understood the argument of their counsel, that the transaction in question was of the nature of novum debitum, and so is not struck at by the Act 1696, c. 5. In support of this view, it was explained, with reference to the proof, that the defenders, unless they had obtained the acceptance of Marshall & Co. for £1000, would have refused to implement their part of the charter-party, and brought it to a termination; that they were entitled to have taken this course, and would have done so if the acceptance had not been granted to them; and that, as it was in consideration of their having received the acceptance, they for the time allowed the contract of charter-party to stand, there was thus a new contract, of which the acceptance, and payment of its contents, were merely fulfilment by Marshall & Co., and not a preference struck at by the statute. The Lord Ordinary does not think that this is a sound or maintainable view of the transaction. It appears to him that in substance and reality the prior contract of charter-party, after the bill was granted to the defenders, remained just as it had ever been, and therefore that the transaction challenged cannot be said to have constituted a new contract, or altered the relative positions of the bankrupts and the defenders. According, indeed, to the defenders' theory, the granting of a security by a bankrupt in favour of a prior creditor might, in many cases to which the Act 1696, c. 5, has been held clearly to have applied, be said to displace the original by a new debt. And it is a somewhat singular, and, as the Lord Ordinary ventures to think, fallacious, plea for avoiding the operation of the statute, to maintain that the transaction challenged was gone into by the bankrupts in order to prevent the defenders violating or breaking their engagements under the charter-party.

"Disposing of the case as the Lord Ordinary has done, any consideration of the defenders' plea of retention, or set-off in respect of alleged damages sustained by them, was unnecessary, or rather has been excluded. The defenders may or may not have such a claim of damages which they may or may not be entitled to make effectual by a ranking

in the sequestration or otherwise, and, in regard to that matter, the Lord Ordinary determines nothing. Neither has the Lord Ordinary determined anything in regard to the I O U for £25, as it has not been brought under challenge in the present action, and does not appear to have been paid."

Robb & Co. reclaimed.

HORN and HARPER for them.

WATSON and LANCASTER in answer.
At advising-

LORD NEAVES-The question in this case is one of some importance and novelty, and I have therefore considered it with care and anxiety. The decision depends on facts, as to which the parties are not much at variance. The summons, though somewhat peculiarly framed, is quite intelligible. The trustee on the sequestrated estate of Marshall & Co. demands back a sum of £1000, which was paid by one of the bankrupts a few days before insolvency, and a month or so prior to sequestration. He also concludes, in the event of that being necessary, for reduction of the transaction under which the £1000 was paid by the bankrupts.

The Lord Ordinary has sustained the pursuer's claim, and has decerned in terms of the reductive conclusions of the summons, finding that the transaction was null and void, or at least reducible under the Act 1696, c. 5, as having been voluntarily made and entered into by Marshall & Co. within sixty days of their bankruptcy, for satisfaction or in security of a prior debt due to the defenders in preference to other creditors. I am of opinion that we should adhere to the Lord Ordinary's judgment.

The material circumstances of the case are these-Robb & Co. entered into a somewhat complicated arrangement with the bankrupts to furnish them with a ship which was to be sent to Melbourne, Marshall & Co. undertaking to find the cargo, in the expectation of making what profit they could out of the difference between what they received as freight and what they paid to Robb & Co. Certain other stipulations were contained in the charter-party, and it was agreed that a payment should be made to account of freight on the vessel leaving the Tail of the Bank, and the rest of the freight on its arrival at Melbourne. Before this contract had been implemented at all, circumstances occurred which tended to throw discredit on the business character of Marshall & Co. It is not necessary to enter into any detail upon this matter; it is sufficient to say that, from some cause or other, there certainly was excited some suspicion in the minds of Robb & Co., who seem to have thought that they were entitled to demand security as a condition of their proceeding with the contract. Marshall & Co. seem also, to some extent, to have admitted that such a demand was reasonable, and this led to the transaction now sought to be reduced. It appears that Marshall & Co. at first offered to obtain for Robb & Co. the personal guarantee of a third party for their implement of the contract, but having failed to do so they agreed, in place of finding personal security, to grant their own acceptance within fourteen days for £1000 in anticipation of the sum of £1250, that being the first instalment of the general freight due to Robb & Co. under the charter party. The nature of the transaction is made plain by a letter of Marshall & Co., sending their acceptance. In that letter, which is dated 3d September 1869, they

say "Dear Sirs,—As you have requested, in consequence of letters sent by Messrs Allan C. Gow & Co. to the shippers per "River Jamaica," that some security should be given you for fulfillment of the charter per 66 Asia," 23d August 1869, we now tender you our acceptance of this date in your favour for £1000 at fourteen days' date, which, when retired by us, shall be imputed pro tanto in payment of chartered freight by said vessel." Marshall & Co. therefore placed their acceptance for £1000, at fourteen days' date, in the hands of Robb & Co. on the footing that the contents of the bill when retired should be imputed pro tanto in extinction of the first instalment of the frieght due under the charter party, amounting to £1250, although that sum did not fall due until some time afterwards. The advantage thus secured to Robb & Co. was to afford them parata executio for so much of their debt, and the question is, whether, that advantage having been obtained within sixty days of the bankruptcy of Marshall & Co., it was of the nature of a preference, struck at by the Act 1696.

Now, I shall assume that the difficulties of Marshall & Co. were such as justified the defenders in withdrawing altogether from their contract with Marshall & Co.; and that being so, the question comes to be whether they were, in these circumstances, likewise justified in taking a security from their debtors, and going on with the transaction. Now, I cannot doubt that a party to a contract, who threatens proceedings to secure implement, must, if he obtains security for its due performance, be held to have taken that security in respect of a prior debt. But that is really the whole case, the determination of which seems to me to depend upon these two points-viz., (1) Whether Robb & Co. were prior creditors at the time the advance was made? and (2), Whether the advance so made was given in security or in satisfaction of a prior debt? In the first place, I think it is quite plain that at the date of the transaction Robb & Co. were creditors. Marshall & Co. were creditors for fulfillment of the contract. Robb & Co. were creditors for the £1250, which was to become due in a certain event, the fulfillment of which was in their own power. A man is a creditor who holds a bill at three months, although he cannot enforce the obligation till the three months expire. It does not alter the case that a condition is added to the obligation. He is still a creditor, and if he gets his position improved by means of a security he is taking away from the funds available to the general body of creditors, and where this has been done on the eve of bankruptcy the law presumes that it has been done fraudulently.

In the next place, was this a security for a pure debt? I cannot doubt that it was. Payments of cash are privileged under the statute, but only in so far as made in the ordinary course of business. Now, it is not the ordinary course of business for a man to grant a bill at fourteen days for a sum which does not become due for some time afterwards. Cash paid down in implement of a totally new transaction would be quite different. There is then a novum debitum, payment of which is not struck at by the Act. But it is clear that this payment was not intended to be imputed to any new debt from the words in the letter of Marshall & Co. to which I have referred-viz., that the contents of the bill "shall be imputed in payment of the chartered freight," &c. I am of opinion therefore that this being a payment or security

given in satisfaction pro tanto of the obligation prestable under the prior contract between the parties, is of the nature of a preference liable to be set aside under the the Act 1696. The case of Speir v. Dunlop goes far to support this view, for there the indorsee of a bill, having within sixty days of the acceptors' bankruptcy obtained from him a sum of money as a provision for payment of the bill when it fell due, the House of Lords, notwithstanding the verdict of a jury, which negatived an issue of direct fraud, remitted the case to the Court of Session, to consider whether, independently of that, the transaction was not struck at by the Act 1696.

Now, here the bill was accepted in security of the freight to become due. It is not the case of a sum of money paid down by Marshall & Co. as a price for not completing the contract simpliciter, but as a prepayment-a payment by anticipationto make Robb & Co. safe in going on with the transaction. It was not, therefore, in any sense a novum debitum. The money was truly deposited in the hands of Robb & Co. till the period of payment under the contract arrived, and if they broke their contract, they would have had to repay the money. The object of the statute, no doubt, was to protect all transactions in the ordinary course of business. But the demand for security was just a means of concussing the debtor, and, whether justifiable or not, I cannot regard it as a transaction in the ordinary course of business. On these grounds, I think we should adhere to the Lord Ordinary's interlocutor.

If I could take any other view of the case, it would be that the £1000 was paid for a debt not due. It was plainly not given as a present or as a bribe. It was given to be imputed towards the payment which was to become due on the vessel leaving the Tail of the Bank. On that event not occurring, a claim for repetition would have arisen.

In conclusion, I may add that I have not said anything in regard to the defender's alleged claim of damage, because, if they have such claim, I am of opinion that it must be vindicated in some other process.

The other Judges concurred.

Agent for Pursuer-Alexander Morison, S.S.S. Agents for Respondents-J. W. & S. Mackenzie, W.S.

Saturday, December 24.

STEWART, PETITIONER.

Circum

Parent and Child-Custody of Child. stances in which held that a delicate child of five years of age, whose parents lived separately under a voluntary deed of separation, should be allowed to remain under its mother's care.

This was a petition by a father for the custody of a male child, who was born in August 1865, brought in the following circumstances-By a voluntary deed the petitioner and his wife had agreed in 1867 to live apart, and that the wife should have custody of the child of the marriage, and receive a certain sum as aliment, "under reservation of the petitioner's claim at any time to the custody of his child in terms of law." The wife alleged that her husband had come to her home, and in the most violent and abusive manner demanded that his child should be given up to

him. She further alleged that the child was in delicate health, and should be allowed to remain in her custody. She produced a certificate stating "I hereby certify, on soul and conscience, that John Paxton Stewart, presently residing at 50 King Street, Tradeston, now aged five years, had, when six months old, an attack of bronchitis with severe ophthalmia (inflamation of eyes), which weakened and reduced him very much. From the protracted character of the bronchial affection, and its frequent recurrence since that time upon slight exposure to cold, he has never regained strength. Besides, when about three years of age, he suffered long and severely from hooping-cough with bronchitis, which so shattered his slender and tender constitution that until he was three and a-half years old he was unable to walk alone. In addition, he has always been liable to stomach derangements, frequently accompanied with cerebral (brain) irritation, often followed by convergent strebismus (squint), as well as inability to speak, which even now he cannot distinctly, plainly and too strongly indicating his delicate, sensitive, and easily irritated brain. Having been in attendance at his birth, and having watched him in his numerous ailments, I have no hesitation in giving my decided opinion that to remove him from his mother, who has nursed him so carefully and tenderly, and place him under the care of a stranger, totally unacquainted with his upbringing and his delicate frame, would prove very prejudicial, and might even be dangerous to his lifeA. L. KELLY, M.D., F.F.P.S., Glasgow."

She also produced a medical certificate from Professor Gairdner, to the effect-"There are sure signs that he is well taken care of at present by his most natural nurse and protector, and I think it would be a manifest injury to remove him from that protection. These things I certify on soul and conscience" W. G. GAIRDNER, M.D., F.R.C.P., Edinburgh."

The petitioner, on the other hand, produced a certificate from S. J. Moore, M.D., F.R.P.S., Glasgow, medico-legal examiner for Glasgow, to the effect "The boy is apparently about five years of age, and very well developed for his years. After a most careful examination, I am of opinion that he is of good constitution, and at present in the enjoyment of excellent health; and I cannot see any reason why his health should be affected by his removal from the custody of his mother to that of his father."

The Court remitted to Professor Lister to visit the child, and report to the Court whether in his opinion the child would be injured by removal from the care of his mother. Professor Lister's report was that he found the child of delicate constitution, and much in need of careful tending. SOLICITOR-GENERAL (CLARK) and MACLEAN for

Saturday, December 24.

HAGART V. THE LORD ADVOCATE. Succession-Inventory Duty-Jus Crediti-Debt of Deceased-5 and 6 Vict., cap. 79, sec. 23. Held that a sum left by a father to his son in virtue of the power of apportionment among his children given to him by ante-nuptial marriage contract, was a debt due by the deceased for which his son was a creditor in the sense of the 23d section of 5 and 6 Vict., cap. 79. Succession-23 and 24 Vict., cap. 80, sec. 3Heritable Bonds. Held that, under the above section, money heritably secured was properly 2-inventoried along with the other personal estate of deceased, from which debts due by the deceased were to be deducted under 5 and 6 Vict., cap. 79.

This was an action brought by the trustees of the late Thomas C. Hagart, Esq., of Bantaskine, for the purpose of recovering from the Crown the sum of £300, being the amount of inventory duty paid upon the sum of £14,999 by the pursuers, and which they demanded in respect that the said sum was a debt due by the deceased payable out of his personal estate. The question arose in the following circumstances:-The ante-nuptial marriage contract, dated 20th August 1813, between the deceased Mr Hagart and his wife contained the following clauses-"For which causes, and on the other part, the said Thomas Campbell Hagart and the said Charles Hagart bind and oblige themselves, their heirs, executors, and successors whomsoever, to make payment to the said Elizabeth Stewart, during all the days of her lifetime, in case she shall survive the said Thomas Campbell Hagart, of a free liferent annuity of £800, payable at two terms in the year. And the said Thomas Campbell Hagart and the said Charles Hagart hereby bind and oblige themselves and their foresaids to lay out such a capital sum, on good and sufficient security, or in the purchase of lands, as will secure to the said Elizabeth Stewart the foresaid free liferent annuity of £800, which shall be paid to her as aforesaid free of all taxes or deductions whatever, and to take the rights and titles thereof to the said Thomas Campbell Hagart and the said Elizabeth Stewart in conjunct fee and liferent, for her liferent use allenarly, in case she shall happen to survive him, and to the children to be procreated betwixt them; whom failing, to the said Thomas Campbell Hagart, his heirs and assignees whomsoever, in fee. And further, it is hereby expressly provided and declared that it shall be in the power of the said Thomas Campbell Hagart to divide and apportion as he shall think proper the fee of the said capital sum amongst the children to be procreated of the said marriage."

Mr Hagart died in 1868, survived by his wife, two sons and a daughter, and he had never invested any capital sum to meet the annuity of £800, but he left ample personal estate for the purpose.

By his trust-disposition and settlement Mr Hagart, on the narrative that he had the power under the marriage contract to divide and apportion the fee of the capital sum which was to be invested to afford the annuity of £800 in any way in which he pleased among the children of the marriage, apportioned a sum of £10,000 as payable to his son James M'Caul Hagart. Upon the death of Mr Thomas Hagart his executors gave up an inventory of his personal estate and of money be

longing to him secured on heritage in Scotland under 23 and 24 Vict., cap. 80, amounting to £73,143. The said sum of £73,142, 5s. 8d. of personal estate included-(1) A sum of £9000 due under a promissory-note by the late Sir John M'Donald of Dalchosnie to the Central Bank of Scotland, dated 25th September 1863; and (2) a sum of £7922, 3s. due under a personal bond by the trustees of the late Archibald Speirs, Esq. of Elderslie, in favour of the Honourable Mrs Speirs. The inventory duty paid by the trustees amounted to £1050.

They alleged in this action that they were entitled to rebate of £300, in respect that the £10,000 payable to James M'Caul Hagart was a debt due by the deceased, and payable out of his personal

estate.

The Crown maintained-(1) That the two sums of £9000 and £7922, 3s. had been improperly inserted in the inventory as personal property being heritably secured; and (2) that the sum of £10,000 was a claim of succession, and not a debt due by the deceased.

The Lord Ordinary (ORMIDALE) pronounced this interlocutor and note:

Edinburgh, 24th November 1870.-The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, Finds that the pursuers are entitled to a return or repayment of the inventory duty which has been paid by them to the extent of £150: Therefore finds the defender liable in repayment to the pursuers of the said sum of £150, with interest thereof at the rate of five per cent. per annum, from the 1st day of November 1869 until payment; and quoad ultra assoilzies the defender, and decerns: Finds the pursuers entitled to one-half of the expenses of process incurred by them, excluding the expenses connected with the making up the record as it was first closed, and the debate which took place thereon; allows them to lodge an account of these expenses as now found due; and remits it when lodged to the auditor to tax and report.

"Note. In the present action the contention of the pursuers is, that they were due of inventory duty £750 only, in place of £1050, which was actually paid by them, and that therefore they are entitled to a return or repayment of £300.

"1. The pursuers contend, in the first place, that the £10,000 referred to in the record is of the nature of a debt due by the deceased, and so falls to be deducted from the inventory of his personal estate; but this the defender disputes, and contends that the £10,000 referred to is not of the nature of a debt due by the deceased, but merely a part of succession devolving on them, and therefore does not fall to be deducted from his personal estate. The question thus raised depends in a great measure upon the view that is to be entertained of the legal effect of the ante-nuptial contract of marriage which was entered into by the pursuer General Hagart's father and mother, taken in connection with the father's trust-disposition and settlement. Having regard to these deeds, the Lord Ordinary, although not without difficulty, has come to the conclusion that the £10,000 in question must be dealt with as a debt due and owing from the deceased, and due and payable by law out of his personal or moveable estate,' and therefore that the pursuers are entitled to a return of the inventory duty corresponding to that sum, as provided for by the Act 5 and 6 Vict., cap. 79, sec. 23.

"The Act referred to is quite general as to the description of debts entitling a party to a return of inventory duty. It does not limit the right to debts of any particular class, or to debts of a preferable nature. The only condition imposed is, that the debts must be due and owing from the deceased, and payable by law out of his personal or moveable estate.' The Lord Ordinary thinks the £10,000 in question is a debt of that description. It is due and owing from the deceased,' for by his ante-nuptial contract of marriage—a deed of a highly onerous character-he, in respect of a large tocher brought to him by his wife, and other stipulations come under by her, and in respect of the contemplated marriage, bound and obliged himself, his heirs and representatives, to lay out and secure a much larger sum than £10,000, the fee or capital of which was to be taken payable, and-in the circumstances which occurred-became payable, to the younger children of the marriage. By the marriage contract, of which No. 6 of process is an extract, certain individuals are named and appointed, at whose instance it was agreed that all action and execution for implement of the provisions in favour of the said Elizabeth Stewart, or of the children of the marriage, shall pass.' It is thought, therefore, that even during the lifetime of the deceased he could have been compelled to lay out and secure a sum adequate to satisfy the provisions of his children.Bell's Prin., sec. 1971; and Hay and Carruthers v. Hay, 28th June 1709, Mor. 12,967. But that not having been done is no reason why the provision, which in terms of the power to that effect in the marriage contract the deceased apportioned at £10,000 to the pursuer, James M'Caul Hagart, should not now be payable by law out of his personal or moveable estate:' and if so payable, the Lord Ordinary thinks it must be considered and dealt with as a debt entitling the pursuers to a corresponding return of inventory duty in terms of the Act which has been referred to.

"It may be that such a provision as that in question, in favour of children nascituri, is not a debt in the sense of its being entitled to be ranked in competition with ordinary creditors of the father; but still it is of the nature of a debt due by him, which it was beyond his power directly and by any gratuitous or voluntary deed to extinguish, except by payment to the creditor therein. Nor is it of any consequence that the general provision as it existed in the marriage contract was converted into a £10,000 provision in favour of the pursuer James M'Caul Hagart by virtue of the power of apportionment reserved to his father; for this, and indeed nearly all of the points which here arise in relation to the question, were fully considered, and disposed of favourably for the contention of the pursuers, in the case of The Advocate-General v. Trotter, 12th November 1847, 10 D. 56. It is true that in that case the dispute related to legacy and not inventory duty, and arose under a different statute from that which applies to the present case. But still, and although the discussion in that case turned in part upon the terms of the particular statue there under consideration, and on the question whether the sum there in dispute was not a debt but a legacy, which by the statute was defined to be a gift by any will or writing,' the general reasoning and principles of law in reference to which it was held to be a debt, apply equally, as it appears to the Lord Ordinary, to the present case, and lead to the conclusion that

the £10,000 here in dispute must be considered and dealt with as a debt. The Lord Ordinary refers especially to that passage of Lord Fullerton's judgment-and it was the judgment of the Court -in which he sums up a very full exposition of his views and examination of the authorities in these terms-'Here, then, it is found that the pecuniary provisions in favour of children by antenuptial marriage contract are truly rights of credit, by onerous deed inter vivos, and that is quite sufficient for the decision of the present question. It is true that these rights suffer a modification as to be postponed in competition with ordinary onerous creditors, and in that one particular they bear a resemblance to gifts by testamentary instrument; but that is not enough to identify the two rights. To effect that it would be necessary to show that the two rights resemble each other, not in one, but in every essential particular. Instead of that, it is clear that they differ in every essential particular except that one. Accordingly, the only legitimate inference is, that provisions to children by marriage contract are rights of credit created by deed inter vivos, of a peculiar and modified kindan inference of which every one must admit the justice. But, on the other hand, it is equally clear that they are, neither in form or in substance, gifts by testamentary instruments, being the character which is indispensable to subject them to the liability for legacy duty.'

"In support of the same view, reference may also be made to the authority of Mr Erskine, by whom it is stated (3, 8, 38) that a child can enforce implement of marriage contract provisions against his father, and that he may do so without serving heir to his father; for it is not only unnecessary but improper for a creditor to serve heir to his debtor in order to make his payment effectual.' Nor does the Lord Ordinary think that the cases of Pagan v. Wilson's Trs., 18 D. 1096, and M'Leod v. Leslie, 6 Macph. 445, and 2 Law Rep., Scotch Appeals, p. 44, cited for the defenders, are adverse authorities.

"The result is, assuming the Lord Ordinary to be right in holding the £10,000 in question to be of the nature of a debt due and payable by law out of the personal estate of the deceased, that the pursuers are entitled to a return to the extent of £150 of the inventory duty, which has been paid by them.

"2. The pursuers further contended that they were not only entitled to repayment of £150 in respect of the £10,000 debt, but also to repayment of another £150, making in all £300, as concluded for in the summons. The Lord Ordinary, however, has been unable to see any good ground on which this contention can be given effect to.

"The way in which the pursuers endeavour to show that a further sum of £150 ought to be returned is by including in the proper personal estate, before deducting debts, the two sums of £9000 and £7922, 3s., as if they also had been in their own nature proper personal estate belonging to the deceased. The result, in this view, would entitle them to the full return of £300 concluded for by them, as set out in the first branch of article 20 of their condescendence. But the Lord Ordinary has been unable to see how these two sums of £9000 and £7922, 3s. are anything else but money secured on heritable estate; and if so, it follows, as shown in the second branch of condescendence 20, that the pursuers are only entitled to a return of £150, and not of £300, as concluded for