Scots Law Times, June 23, 1917.]

Muirhead

June 8, 1917.

2ND DIV. case of Tennent v. Crawford (5 R. 433). It is true that the interlocutor there, so far as it allowed v. Meikle. the claimant to produce the stamped document in process within eight days, was recalled; but the Court remitted to the Sheriff to allow the claimant, if so advised, to pay into the hands of the clerk of Court the stamp duty and penalties, and thereafter to receive the said document in evidence. I see no reason why the

Sheriff-Substitute here should not have followed
the same course.
It was one of the alternative
motions that he refused; and where it is plain
that the learned Judge erred in procedure, I
think that we are entitled to review his decision,
even although it forms no part of the interlocutor
submitted to review where, as here, the error
appears on the face of the proceedings. I confess
I do not follow the Sheriff-Substitute's view that,
in Tennent's case, the Court proceeded not under
in Tennent's case, the Court proceeded not under
the Bankruptcy Act, but under the Stamp Act,
or his view, expressed at a later part of his note,
that the Stamp Act does not apply to the
scrutiny of votes in a bankruptcy. The sole
question is -Whether a voucher, which is
defective because it has not been stamped,
although it required to be so, can be stamped if
the claimant so demands before the Sheriff
Substitute proceeds to deal with the claim on
its merits? I think the claimant was entitled to
make this demand in the present case; and that,
following the decision in Tennent v. Crawford,
the Sheriff-Substitute was bound to accept con-
signation, which could be instantly made, and
then proceed to deal with the voucher on the
footing that it had the appropriate stamp. The
of the Stamp Act is to protect the revenue
of the Crown, and whenever this has been done
the validity of the document, as a ground of
claim for voting purposes, can then be dealt
with. I agree with the Sheriff-Substitute that
he had no alternative but to refuse the motion
subsequently made, substantially on the grounds
he states. The error in procedure which I
attribute to him was that of not allowing the
claimant to consign the amount of the stamp
duty and penalties, if any, appropriate to the
document founded on. It becomes, accordingly,
necessary for us to correct this error; and to
remit to the Sheriff-Substitute to proceed with
the scrutiny of votes on the footing that the
objection to the vouchers as being defective
from want of stamping had been cured by con-

purpose

signation of the stamp duty, if the appellant still adheres to his original motion. As he has already considered and decided all other questions on the merits, the task should be a simple one, whatever its bearing may be on the ultimate result.

to the competency of appealing, in a sequestraLord Guthrie.-The case, in so far as it relates tion, a Sheriff-Substitute's deliverance dealing with procedure before the deliverance declaring the election of a trustee has been pronounced is ruled in the appellant's favour by Tennent v. Crawford (5 R. 433). The subsequent case of Reid v. Strathie (14 R. 847), when the grounds maintained for the proposed appeal are examined, does not conflict with Tennent. Applied to the present case, it appears to decide that the SheriffSubstitute's opinions on the merits for voting purposes of the first, third, and fourth of the four claims dealt with by him cannot be made the subject of an appeal. But it does not affect the appellant's complaint against the SheriffSubstitute's refusal of his motion contained in the minute (No. 35 of process), so far as that motion relates to the procedure to be followed in connection with the second claim dealt with, namely, the claim for £1518, 6s. 8d. founded Insurance Corporation and Guarantee Fund Ltd., on the assignation in favour of the Licenses and rejected by the Sheriff-Substitute as stamped. The motion is not in proper form,

because it should have contained an offer to

consign the stamp duty appropriate to the deed; but it appears from the Sheriff-Substitute's note that this, the proper offer, was timeously made by the appellant in the course of the scrutiny, and that the offer was refused by the SheriffSubstitute. In these circumstances I think we ought to treat the appellant as if he had repeated this offer in his minute. Treating the case on that footing, I think that the offer should have been accepted; and I concur in the course proposed by your Lordship.

Murray v. Bruce, O 20

Myles, Nimmo & Co. Ltd. v., 306

357

Secretary for Scotland, Dundee Combination
Parish Council v., 30

Shaw's Trs. v. Bruce, 21

v., L 318

Nimmo & Co. Ltd. v. Myles, 306

North British Railway Co. v. Birrell, 249

North British Railway Co., Mandleston v., 224

OCEAN STEAMSHIP CO. LTD., Hay & Sons v.,

171

Officer v. Davidson & Co., 232

O'Keefe v. Grieve's Trs., O 305

PARSONS & SON LTD., Dunn v., O 314

Paterson v. Scottish Insurance Commissioners,
161

Paton Ltd., Graham v., 66

Pender-Small v. Kinloch's Trs., 135
Perth School Board v. Henderson, 92

Sinclair . Simpson, L 211

Smart, Edinburgh and Leith Corporations Gas
Commissioners v., O 44

Stirling's Judicial Factor, Petr., O 165
Strathdee v. Crowe, S 53
Stubbs Ltd., Mazure v., O 325

TAIT v. Trotter & Sons, 172
Tillie, Whyte & Co., Johnson v., 57
Todd v. M'Carroll, O 263

"Torm & Botnia" v. Buntine, O 338
Tough & Sons, Beattie v., 27
Trench, Petr., 15

Trotter & Sons, Tait v., 172

UMPHRAY v. Ganson Brothers, 178

RACKSTRAW v. Douglas, 128

Union Bank of Scotland Ltd., Robertson & Co's.
Tr. v., 333

Rankine, Low v., J 292

v. Lewis & Sons Ltd., 153

Rowley v. Rowley, 16

ST ANDREWS SCHOOL BOARD, Morrison v., O 72
Schulze, Petr., 176

Scottish Insurance Commissioners, Paterson v.,
161

Scottish Steam Herring Fishing Co. Ltd.,
Buchan v., 343

Scottish Temperance Life Assurance Co. Ltd. v.
Law Union and Rock Insurance Co. Ltd. 4

Wilson, Baillie v., 96

Wilson, Wilson's Trs. v., 328
Wilson's Trs. v. Wilson, 328
Wingate, Wingate's Trs. v., 75
Wingate's Trs. v. Wingate, 75
Woodburn v. Motherwell Ltd., 345
Woodilee Coal and Coke Co., Lyons v., L 274
Woodilee Coal and Coke Co. Ltd. v. M'Neill, 80

ZARIFI, Montgomery v., 321

Zetland, Marquis of, Lord Advocate v., O 275

ACTS OF SEDERUNT-C.A.S. 1913, D, iii.
and L, xiii. (17) (f). See WORK-
MEN'S COMPENSATION ACT 1906
C.A.S. 1913, L, xiii. 11 (2). See WORK-
MEN'S COMPENSATION ACT 1906
ALIEN ENEMY-Alien enemy; Executor-
dative. See SUCCESSION
ARBITRATION—Award; Validity; Arbi-
tration under the Agricultural Hold-
ings (Scotland) Act 1908, c. 64;
Decree-arbitral bearing to award com-
pensation to tenant in respect of con-
tinuous good farming; Held that it
was incompetent for the tenant to
prove that the award had been made
in respect of the increased fertility.
of the farm due to unexhausted
manures applied by the tenant to
the farm prior to a specified date.
Brodie Innes v. Brown
Partnership; Association of boatmen ;

One partner withdrawing from part-
nership at termination of original
agreement; Remaining partners form-
ing new partnership; Dispute between
retiring partner and new partnership
as to whether retiring partner was
entitled to carry on business in com-
petition with partnership in view of
restrictive clause in original agree-
ment; Clause in original agreement
referring disputes to arbitration; Held
that the partnership or association
originally formed had been dissolved,
that the new partnership agreement

was not a continuation of the original
agreement, and that the arbitration
clause did not apply to a dispute
between the retiring partner and the
new partnership. Macgregor v. Leith
and Granton Boatmen's Association
ARMY War; Voluntary enlistment;
Breach of contract. See MASTER AND
SERVANT-S

BANK-Deposit-receipt; Payment; Con-

signation receipt in favour of
executors payable on signature of a
firm of law agents; Firm of law
agents dissolved; Sum in receipt paid
by bank on signatures of dissolved
firm and another firm; Both signa-
tures adhibited by partner of dissolved
firm; Payment made more than
thirteen years after date of receipt;
Sum in receipt not paid to executors
but misappropriated; Partnership
Act 1890, s. 38; Held that the pay-
ment by the bank was a good pay-
ment, and that the bank was not
liable to the executors for the amount
of the sum in the receipt. Dickson v.
National Bank of Scotland Ltd.-L
BANKRUPTCY-Bankruptcy (Scotland) Act
1913, ss. 67 and 166; Election of
trustee; Competency of appeal; Error
in procedure; Votes of creditors;
Leave to consign amount of stamp
duty refused; Interlocutor making
findings as to scrutiny of votes but