of the Bankruptcy Act, simply requested the resolution to be recalled on the ground that it had been carried by fictitious votes. The Court remitted to the Sheriff to dismiss the appeal as incompetent. All that the prayer asked was to recal a negative, which could end in nothing, and do no good to the bankrupt. The proper course would have been to protest at the meeting that the resolution was not carried, and then in the appeal to ask this to be found. Lord Benholme dissented. He thought no particular form of prayer was necessary, and that sufficient materials were before the Court to enable it to do substantial justice in the case.

Act. Millar, W. M. Thomson. Agent J. Ross, S.S.C.-Alt.— Decanus & Rhind. Agent-R. P. Stevenson, S.S.C.

DUKE OF BUCCLEUCH v. COWAN BROTHERS.-Nov. 28.

Jury Trial-Special Jury-Motion to quash verdict-Competency. A motion was made in this case to have the whole proceedings at the jury trial, which took place in August last before a special jury, quashed and set aside, as having taken place before an illegal tribunal; the allegation being that the jury had not been properly struck. The Sol.-Gen., for the pursuers, opposed the motion (1) as incompetent; (2) on its merits. The Court on the former ground refused the motion. After a verdict was returned, there was no way of setting it aside except by the means prescribed by statute and regulated by Act of Sederunt; these were (1) by a bill of exceptions; (2) by a motion for a new trial. The present application was unauthorised by statute, and unknown in practice. Being, therefore, quite irregular, the Court could pronounce no deliverance upon it.

BURNET V. HENRY.-Nov. 30.

8 Vic. c. 19, § 32-Arbiter's Clerk-Expenses.

The dispute was whether the pursuer, or defender as representing the Glasgow Corporation Water-works Commissioners, who had constructed certain works through lands the minerals in which belonged to the pursuer -was bound to pay the one-half of an account due to Traquair, as clerk to arbiters under the Lands Clauses Consolidation (Scotland) Act, 1845. Sec. 32 of that Act enacts that "all the expenses of any such arbitration and incident thereto, to be settled by the arbiters or oversman, as the case may be, shall be borne by the promoters of the undertaking, unless the arbiters or oversman shall award the same sum as, or a less sum than, shall have been offered by the promoters of the undertaking, in which case each party shall bear his own expenses incident to the arbitration; and in all cases the expenses of the arbiters or oversman, as the case may be, shall be borne by the promoters of the undertaking."

In this case the arbiters, after investigating the claim, had awarded the pursuer nothing. The Court (reversing the interlocutor of Lord Ormidale) assoilzied the defender. The section of the Act divided the expenses into three classes (1) those of the promoters (2) those of the claimant, and (3) those of the arbiters. The statute did not contemplate that there should be a clerk to a submission under it, but if a clerk was employed his account

fell under the third class, which in all cases full to be paid by the pro

moters.

Act.-Young & Burnet. Agent J. Thomson, S.S.C.-Alt.--Clark & Johnstone. Agent—J. Padon, S.S.C.

GIBSON V MACQUEEN.-Dec. 5.

Reparation-Process-Action by several Pursuers—Competency.

This was an action of damages against a law agent on the ground inter alia that he, acting for the debtor, had delivered two bonds to the creditors in them, knowing that certain signatures to these bonds were forged. There were four pursuers, two of whom were creditors in one bond for L.1200, and the other two in a bond for L.300. The security was over the same subjects, and the creditors in each bond were to rank pari passu. The summons concluded for a slump sum of L.840. The Court dismissed the action as incompetently laid. There were here two sets of pursuers with no community of interest-nay, whose interests might at any time become adverse. Their respective claims might come to depend upon quite different grounds; the one might succeed and the other fail; and yet they had no mode, nor any clue to a mode, of ascertaining what amount of interest each set of pursuers had in the sum concluded for.

Act.-Fraser & Scott. Agents-Murray, Beith, & Murray, W.S.— Alt.-Advocatus, & W. N. M'Laren. Agent J. M. Macqueen, S.S.C.

MORRIS V. BICKETT.

Appeal-Application of Judgment.

A judgment of the Court of Session was affirmed simpliciter by the House of Lords. The pursuer (respondent in the appeal) petitioned the Court (1) to apply the judgment of the House of Lords; (2.) for warrant to deliver up the bond of caution which had been deposited on payment of the expenses under an interim execution granted by the Court of Session pending the appeal. The Court refused the petition as unnecessary and incompetent. The first prayer was, in the case of a simple affirmance, unnecessary; and the bond of caution was an obligation to repeat the expenses in the event of a reversal, which had not and could not now occur. Alt.-Orr Paterson. Agents-Duncan & Dewar, W.S.-Alt.-A. Blair. Agents-Hunter Blair & Cowan, W.S.

RHIND'S TRUSTEES v. GUNN AND OTHERS.-Dcc. 7.

Trust Deed-Legacy-Vesting-Conditio si sine liberis.

Alexander Rhind died on 3d July 1863. Under his trust disposition and settlement (dated 1st January 1861) he bequeathed a legacy of L.2000 to his aunt, Mrs Gunn, and failing her by death, and in the event of her leaving lawful children, he directed his trustees to divide the legacy equally among these children. Mrs Gunn died in February 1862. One of her daughters, Mrs Leith, died in 1855, leaving children. They, in right of their mother, and as grandchildren of Mrs Gunn, claim a proportional share of the L.2000 with the other children of Mrs Gunn who still survive. The Court, adhering to the judgment of the Lord Ordinary (Ormidale) repelled their claim.

The legacy could not have vested in the mother of the claimants, and therefore no part of it devolved on them jure representationis. Further, the maxim si sine liberis did not apply. The claimants' mother having died long before the truster made his settlement, there was no ground for holding that he included or intended to include her among the children of his aunt. There was no averment that the truster, when he made his settlement, was ignorant of the fact that the claimants' mother was dead. Act.-Young & Lee. Agent-H. W. Cornillon, S.S.C.--Alt.-Sol.Gen. and Hunter. Agents-Morton, Whitehead, & Greig, W.S.

Petitioner-WILLIAMS.-Nov. 23.

Petition Judicial Factor.-19 and 20 Vict. c. 79 § 164.

A petition for a judicial factor was brought under section 161 of the Bankruptcy Act, by an heritable creditor of a deceased person. There were no representatives with an active title. No information was given as to the indebtedness of the estate or the parties interested. The moveable estate was ex facie sufficient to satisfy the petitioner's claim. The petition was reported verbally by Lord Mure, and the Court in the exercise of their discretion refused the application.

LORD ADVOCATE v. EARL OF FIFE.-Dec. 11.

Exchequer Succession Duty-Deductions-16 and 17 Vict. c. 51, § 34— Date of Succession.

In 1864, an information was laid by the Lord Advocate against the fifth Earl of Fife-the question then raised being whether he was liable to succession-duty under section 2 of the Act. The Lord Ordinary (Ormidale) held that he was, and that judgment was acquiesced in. The question now before the Court is as to the amount of the duty. The rental of the estate amounted to L.29,767, 18s. 7d. On the part of the Crown, it is admitted that deduction must be made of L.6983, 14s., the amount of the annual interest at the rate of five per cent. on a debt of L.139,674, 0s. 2d., due by the trust-estate when the succession opened to the Earl. Over and above this sum, the Earl claims a deduction of L.4441, 1s. 5d. of premiums of insurance payable by him on policies which he obtained on his life to enable him to relieve the trust-estate of the above sum of L.139,674, Os. 2d., leaving it a burden upon his life-interest in the estates. The Lord Ordinary (Ormidale) held that he was not entitled to such deduction. A further question was raised as to what was to be taken as the Earl's age at the date of his succession-whether forty-two or forty-three. This turned upon whether the date when the succession opened to the Earl, or the date when he actually obtained possession under a title—viz., the date when the deed of denuding was executed by the trustees in his favour-was to be held to be the regulating date. The Lord Ordinary held the former, and that the Earl's age was therefore forty-two. The Earl reclaimed, but the Court adhered.

Act.-Advocatus, Rutherfurd. Agent-Solicitor of Inland Revenue. Alt.-Young, Clark. Agents-H. and A. Inglis, W.S.

MRS HARTLEY OR NOLAN v. HARTLEY'S TRUSTEES-Dec. 12.

Trust-Deed-Codicil-Construction-Vesting.

By trust-deed of 26th December 1833, the deceased Mrs Hartley directed her trustees "immediately after my death, or so soon thereafter as the same can be advantageously effected, to sell and dispose of, and realise my whole heritable and movable property;" and she proceeded to declare, "I hereby direct and appoint my said trustees and their foresaids to apportion and divide my trust-estate when so realised (after deduction of the provisions under the first condition of this trust) equally among my five grandsons," whose names and designations then follow; and the truster then goes on to say that they are to receive the property "share and share alike, upon their respectively attaining majority, or twenty-one years complete; declaring that, in the event of any of my said grandsons dying without leaving lawful issue of their own bodies, such deceaser's share shall be equally divided among the survivors; but if the deceaser shall leave lawful issue of his body, such issue shall be entitled to their parents' share of my said trust-estate; declaring farther, that in the event of any of my said grandchildren, or their issue, being under age at the period of my said trustees realising and finally winding up my said trust-estate, then, and in that event, my said trustees shall set apart the share of such child or children under age until he or they shall have attained majority, my said trustees having full power either to advance or accumulate the interest during such minority as they may see expedient and proper." By an after-clause she instructed her trustees "to let my dwelling-house at such rent as they may think proper, until it can be advantageously sold, dividing the free rent obtained therefor among my said grandsons and their foresaids equally, share and share alike;" and by her codicil of 18th April 1834, Mrs Hartley recalled and altered her settlement to the following effect:"I do hereby give, grant, and dispone to my daughter all and whole my dwelling-house and pertinents ... in liferent, for her liferent use allenarly, and to my within-written trustees, for the special ends, uses, and purposes within mentioned, in fee; it being my wish and intention that my said daughter shall have the liferent use of my said dwelling-house and furniture, &c., if she survives me, and that at her death the whole shall be realised, along with the remainder of my trust effects, and divided among my five grandsons within named, in manner particularly within directed; and in so far as not expressly and effectually altered by this codicil, or these presents, I do hereby ratify, approve, and confirm the within-written trust-disposition and deed of settlement."

The Lord Ordinary found that, according to the sound construction of the trust-disposition and codicil, the right thereby given to the grandchildren of the testatrix and their issue did not vest till the death of her daughter, the pursuer, and that all the said grandchildren and their issue being dead, the right to the whole property, heritable and movable, belonging to the said testatrix, was now vested in the pursuer, her only child and heir-at-law.

To-day the Court by a majority adhered. They thought that the effect of the codicil was to remove the punctum temporis at which vesting took place in the grandsons to the death of the liferentrix. The settlement was

framed from the first on the footing that a realisation and division indicated the time of vesting. No doubt the testatrix did not contemplate that her grandsons would all die in the interval, but this could not affect the meaning of the terms employed.

Lord Neaves differed. He thought the Court were giving an effect and importance to the codicil as overruling the principal deed, which was never contemplated by the testatrix, and was not fairly deducible from its own

terms.

Counsel for Reclaimer-Monro, Gibson. Agents-William Mitchell, S.S.C.--Counsel for Hartley's Trustees-Skelton. Agents-Tods, Murray, and Jamieson, W.S -Counsel for Pursuer-Young, Duncan. Agent—

Walker, W.S.

M'EWAN V. MIDDLETON-Dec. 14.

Retention Partnership Creditor—Partner's Debtor-Liquid
Counter-Claims.

The parties in this case were calenderers in Glasgow. Under their contract of copartnery, all disputes were to be referred to an arbiter. After the business had gone on for about three years, M'Ewan had recourse to the arbiter, and the latter found that Middleton was insolvent, in the sense of the contract. M Ewan thereupon elected to take over the whole business and estate of the company, having power to do so under a clause in the contract. Middleton's share in the concern was estimated by the arbiter at L.406, 1s. 1d., and this sum M'Ewan was ordained to pay him. On the other hand, it appeared that Middleton was proprietor of the tenement in part of which the business was carried on. The company acted as factors for this property, and kept a separate account for it called the property account. Middleton's debit on that account amounted to L.968, 6s. The arbiter had no power under the submission to deal with this accountMiddleton having charged M'Ewan for the sum awarded to him. M'Ewan brought a suspension of the charge, and pleaded that he was entitled to set off the sum at Middleton's debit on the property account against the sum awarded to Middleton.

Lord Kinloch refused the suspension; but the Court unanimously recalled that interlocutor. They held the case to be one not of compensation but of retention. The arbiter had rightly not set off the debt due by the charger to the company against the sum to which he was found entitled under the decree-arbitral; but in the suspension, M'Ewan was quite entitled to retain the sum ascertained to be due to him on the property account as against the sum awarded against him. His plea to that effect was, accordingly, sustained.

Act.-Shand, Maclean. Agent-J. Ross, S.S.C.-Alt.-Clark, Asher. Agents-Maconochie & Hare, W.S.

QUEEN v. BEATTIE-Dec. 18.

Exchequer--Quarter Sessions-Special Case-6 Geo. IV., c. 81, § 26. This was a case stated by the Quarter-Sessions of Perthshire for the opinion of the Court. It was presented in terms of the 84th section of the General Excise Act (7 and 8 Geo. IV., c. 53). The import of the facts