LORD CHANCELLOR (HALSBURY)-In this case the question is susceptible of a very short solution. Had the English rule of law prevailed, I am not quite certain that we should not have been involved in this case in a good many difficulties; what the ultimate decision might have been it is immaterial to inquire. The English law, of course, is now established, as Lord Wensleydale said in Kippen v. Darley (18 D. 1137, 1186; 3 Macq. 203)-"The rule is now by a long course of decisions firmly and fully established and cannot be disputed." He adds, what I entirely concur with, "and any comment upon it would now be worse than useless." But after the decision of Kippen v. Darley it is no longer competent to your Lordships to assume that the rule of law-the presumption arising from what are called double portions-is applicable to the law of Scotland. That was a decision upon that very question in this House, and we are, therefore, remitted to the simple question as it arises under Scottish jurisprudence.

Now, although the two sets of provisions are very different, both in their application and in the decisions upon them, there is one observation which was made by Sir John Leach with reference to the English rule which is, to my mind, applicable to the Scottish rule. Sir John Leach said in Weall v. Rice (2 Russ. & My. 268)—"It is not possible to define what are to be considered as slight differences between two provisions."

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Slight differences," he adds- and one cannot help observing that after the learned Judge had said it is not possible to define, he begins with something like a definition "are such as, in the opinion of the judge, leave the two provisions substantially of the same nature; and every judge must decide that question"-of what are slight differences-"for himself." My Lords, I believe that to be perfectly true as applicable to the construction of the instrument now under your Lordships' consideration, and although I propose to mention one or two differences between the two provisions, I protest against anybody hereafter arguing from the particular provisions to which I refer that I am laying down, or affecting to lay down, any general proposition which governs other instruments. am speaking of this instrument with all its circumstances, with all its conditions, and the language which I find therein. There is no greater source of error than, where you have been dealing with one instrument, and dealing with it upon what are general principles of construction, and pointing to the particular provisions of it as exhibiting the necessity of applying those general principles of construction, to apply any observations made with regard to the particular language used or the particular circumstances in which the fanguage is used as amounting to a general canon of construction which is applicable to all other instruments whatsoever, though the language may be different, though the collocation may be different, and though the circumstances with which the instrument is dealing may be entirely

different. I am, therefore, only endeavouring to construe this particular instrument; and when I look at the two instruments in this case, it appears to me that they differ in very material particulars. There is in the one instrument the language of gift. There is in the other instrument the language of obligation. And I find that where the two things are dealt with they are dealt with differently. In the first deed the obligation is an obligation to the trustees; whereas in the second deed the gift is a gift to the lady herself. And although it may be perfectly true that the gift to the trustees was for the benefit of the lady herself, I am endeavouring to find out from the language of the instrument itself what was in the mind of the testator at the time when he wrote those words; and I cannot doubt that the person who writes these words has in his mind the fact that the provision he has already made for the trustees is a different thing from giving to the lady herself. And although it will indeed, by a circuitous process, perhaps, come round to the trustees, yet it is not the same thing. Therefore, when I am asked to say whether these two are to be read as one, and the one is to be in substitution for the other, I cannot entertain the smallest doubt that the person who wrote these words was under the impression that he was doing what he said he was doingmaking a gift, and not implementing the obligation into which he had already en

tered.

For these reasons- and they are very short and simple ones-it appears to me that we must affirm the judgment of the Court below; and I confess it seems to me that it would be very difficult, getting rid as I say of the confusion that has arisen in some of the English cases from a different rule of law, to suggest that anybody can read these two documents and suppose that the one was intended to be in substitution for the other. That seems to me to be enough to say on the principal argument addressed to us, long as that argument lasted.

With regard to the question of interest, I entirely decline to deal with that. I neither understand that any such question was properly raised in the Court below, nor that there are any materials upon which your Lordships could properly entertain the question again. The fact that interest of some sort or other was admitted to be due, or was not contested to be due, is conclusive against the point as to there being any right to recover it; and if it comes to be a mere question of the amount of interest which ought to be allowed, I have neither the materials nor does there appear to be any ground for altering what the Court has already done.

For these reasons I submit to your Lordships that the proper judgment is, that the interlocutor should be affirmed and the appeal dismissed with costs.

LORD WATSON-I agree with the Lord Chancellor in thinking that there is according to the law of Scotland no presumption

Feb. 17, 1896.

which necessarily governs the decision of the present case. The Court have to consider together the obligatory provision made in favour of Mrs Strachey by her marriage-contract, and the voluntary provision which is made in her favour by the will of the late Mr Johnstone; and to determine whether the testator meant to substitute the second of these provisions for the first of them. I think the only materials to which we can legitimately refer in deciding that question are, first, the terms of the marriage-contract, and in the second place, the terms of the settlement, which must be read in the light of a known maxim of Scottish lawDebitor non presumitur donare. But that maxim will only prevail in cases where, according to the opinion of the Court upon the terms of the documents, the construction of the will favours the substitution of a new and substantially similar provision for the onerous provision which had been previously made in the marriage-contract.

My Lords, with regard to this case, having indicated the view which ought to be taken in considering it, I have only to add that I agree in the conclusion which has been expressed by the Lord Chancellor. Prima facie there is the gift as a legacy. I do not say that is sufficient by itself, but in this case it is coupled with such differences in the character of the two provisions that the one cannot, in my estimation be held to be in substitution for the other.

With regard to the tender of evidence made by the pursuer at the bar, whatever authority there may be for the admission of such evidence in the law of England, it is contrary to the rules of the law of Scotland. The other points pleaded by the learned counsel were very technical, and are open to this objection, that they are not pleaded on the record, and were not considered by the Court below.

LORD HERSCHELL-I am of the same opinion. I think the maxim which has been so often referred to is a maxim which embodies common sense; it is only thisthat a debtor is not presumed to make a gift. That is, of course, very far from implying that he may not perfectly well make a gift. I take it to mean this and this only -that where a debtor makes a disposition of his property in favour of his creditor under circumstances such that a gift would be presumed in the case of a person who was not his creditor, it will not be presumed in the case of a person who is; it will then be regarded as a discharge of his obligation. But if there are circumstances which indicate that he did not intend it to be a mere discharge of his obligation, but intended to benefit the creditor and So make that person an object of his bounty, then it is just as effectual as though no such relationship existed between them. It comes then to be a question of fact to be determined in each case whether there is enough to show that he did not intend the disposition to be in satisfaction of his obligation, but did intend it to be a gift.

VOL. XXXIII.

I agree with my noble and learned friends who have preceded me that there is ample to show this in the present case. I am not going over the circumstances again beyond stating that my mind is influenced not by one thing alone, but by a combination of things-by the fact that it is described as a "legacy,' by the circumstance that it is given to the lady, and not to the trustees to whom the obligation was; and if it be said in answer that the testator would know that giving it to her was the same thing as giving it to the trustees because of the covenant she had come under, then I say, in reply to that, you must again take into account the fact that he gives it coupled with a benefit or privilege which she could not enjoy if those trusts were carried out. Taking all those considerations together, I am satisfied that it was intended to be a gift and not in satisfaction of an obligation.

LORD MACNAGHTEN-I am of the same opinion. I do not think effect could be given to the argument on behalf of the appellants without overruling directly or indirectly the judgment of this House in Kippen v. Darley. Once it has been established that the rule against double portions does not obtain in Scotland, it appears to me there is no substantial ground on which it can be contended that the obligation of the marriage settlement has been extinguished by the will.

LORD MORRIS-I concur.

LORD SHAND I am also of the same opinion. I think there can be no doubt that according to the law of Scotland in a case of this class the maxim Debitor non presumitur donare has a direct application in the first instance. The testator had three years before he made his will come under an obligation to pay a sum of £4000 to marriage-contract trustees for behoof of Mrs Strachey and any children of the marriage. When we find that three years afterwards when he made his will he gives the lady the same sum, I think the presumption is against donation. Accordingly, if there had been here a mere direction to the trustees to pay the money to the marriage-contract trustees or even to herself, and nothing beyond that, or if the words used were not to be held by implication to go further, the maxim would have received effect. But, my Lords, the language of the will, I think, shews that he did not intend merely to discharge a debt but to confer an additional benefit. Your Lordships have referred to most of the circumstances which lead to this inference, and I shall not enlarge upon them, but they are mainly these: In the first place, there is the use of the word "legacy." to that I agree with what was said by Lord Moncreiff in the Balfour Case (4 D. 1044), which has been referred to, that though that is not necessarily conclusive, it must be held to be of great weight in a case of this kind. It rather implies gift than payment of debt. But in addition to this we have, as has

NO. XXXIII.

As

been pointed out, the circumstance that the two sums are payable to different persons, namely, the provision to the trustees of the marriage-contract, and the legacy to Mrs Strachey herself. Then what seems to me to be much more material is the further fact, that in giving this legacy there are two benefits or advantages given to Mrs Strachey which she never could have had under the marriage-contract. The first of these is that the legacy when given by her to the marriage-contract trustees under her obligation to transfer acquirenda to them is to be held on a different destination from that of the marriage-contract provision. The ultimate destination under the marriage-contract in case of the failure of issue is that the sum provided is to revert to Mr Johnstone's heirs; while the destination under the will would, failing children, leave the legacy at the disposal of Mrs Strachey herself. In addition to that, as has been pointed out, the testator has expressly altered the rate of interest in the two cases. Under the marriage-contract 4 per cent. is fixed as the limit; while under the will Mrs Strachey has right to have 5 per cent. by leaving the money bequeathed to her in the indigo business. Under these circumstances I am of opinion that it is a matter of direct inference that the testator intended to confer and has given an additional benefit by his will.

It has been said that there are other provisions in the same clause which tend to show that the testator was only providing for the fulfilment of his obligation under the marriage-contract. In the same clause which provides for the legacy to Mrs Strachey, there is a direction to pay an annuity of £300 to a lady to whom he was under an obligation by a bond of annuity for that amount. The appellants' counsel maintains that in the case of this annuity there is clearly no duplication, but a provision only for fulfilment of the testator's obligation, and for the purpose of the argument this may be assumed to be So. There are obviously considerations which support the view that the legacy to Mrs Strachey is an additional benefit which do not apply in the case of the annuity, in the use of the word "legacy" and the other circumstances to which I have specially referred. But whatever may be said of the direction as to the annuity, there is in the same clause also a provision in favour of the testator's widow, which, like the legacy to Mrs Strachey, gives her additional benefits beyond those which he was under obligation to grant. I have only to add that I think there has been no sufficient ground shown for disturbing the judgment of the Court with regard to the rate of interest.

I entirely concur with what has been said by my noble and learned friend Lord Watson, that such evidence as was proposed to be led could not be admitted under the law of evidence in Scotland. It is said that the evidence is not proposed for the purpose of showing the intention of the testator-we are to gather that from the

(Before the Lord Chancellor (Halsbury), Lord Herschell, Lord Macnaghten, and Lord Morris.)

LITTLE v. STEVENSON & COMPANY. (Ante, vol. xxxii. p. 575, and 22 R. p. 796.) Ship- Demurrage Lay-Days-Duty of Shipper to have Cargo Ready.

A charter-party provided that the "River Ettrick' should proceed to Bo'ness and there receive a full cargo of coals.

On 17th October the shipowners intimated in writing to the charterers that the vessel had left for Bo'ness, and requested them to have the cargo for ward on the 19th. The "River Ettrick" arrived in Bo'ness roads on the 19th, but was not allowed to enter the dock owing to its crowded state. The fact of her arrival was known to the charterers' agent, who was also agent for the ship.

On 21st October a berth became unexpectedly vacant in the dock, and would have been given to the "River Ettrick" if her cargo had been forward. As her cargo was not forward the "River Ettrick" failed to obtain this berth, and no other berth became available for her until the 26th, on which date she was docked.

Held (aff. judgment of the Second Division, but on different grounds) that the charterers were not liable to the shipowners for demurrage, in respect that there was no obligation upon a charterer, apart from special circumstances, to have his cargo forward before the ship would in the ordinary course, and according to the custom of the port, obtain a berth for loading.

Appeal Cause Originating in Sheriff "Court - Findings in Fact-Competency of Remit for Further Findings-Judicature Act 1825 (6 Geo. IV. cap. 120), sec. 40.

Stevenson &

19, 1896

Question, whether in the case of appeals falling within the scope of sec. 40 of the Judicature Act 1825, a remit to the Court of Session for further findings is competent where the facts relied on in argument, and as to which the remit is asked, appear from the opinions to have been established, but are inconsistent with the formal findings of fact in the interlocutor.

The case is reported ante, vol. xxxii., p. 575, and 22 R. p. 796.

The pursuer appealed to the House of Lords.

At delivering judgment

LORD CHANCELLOR-My Lords, I confess that I myself am under a very strong impression that it is not open to the appellant here to raise the argument which has principally occupied your Lordships' attention. I think the language of the 6th Geo. IV., chap. 120, sec. 40, is very material indeed, which is - "That when in causes commenced in any of the Courts of the Sheriffs, or of the Magistrates of Burghs, or other inferior courts, matter of fact shall be disputed, and a proof shall be allowed and taken according to the present practice, the Court of Session shall, in reviewing the judgment proceeding on such proof, distinctly specify in their interlocutor the several facts material to the case which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide, and the judgment on the cause thus pronounced shall be subject to appeal to the House of Lords in so far only as the same depends on or is affected by matter of law, but shall, in so far as relates to the facts, be held to have the force and effect of a special verdict of a jury, finally and conclusively fixing the several facts specified in the interlocutor."

I confess I cannot read those words as allowing the possibility of placing in the interlocutor as found a new set of facts which may make the language ambiguous. As they stand they are supposed to be exhaustively disposing of the facts. It appears to me that the interlocutor is absolutely inconsistent with the argument as presented to your Lordships on behalf of the appellant. It may not, however, be necessary to determine that question, because I am not certain that we are all agreed upon this subject; but on the argument presented before us I cannot understand there being any doubt at all.

This action is not raised upon any specific provision in the charter-party at all. The contract relations between the persons who entered into that contract do not specifically apply to the case now suggested to be open to the appellant to argue. What is suggested is this-not that the provision in respect of demurrage ever in fact arose, because it certainly did not arise, but that inasmuch as there was a default on the part of the shippers to provide coal, which default by a series of causes prevented the

vessel obtaining her berth, therefore the default was in the shippers, and accordingly the shipowners have made good this claim.

Now, when one comes to examine the series of propositions which establish that cause of action, it comes to this. It is true that the provision for demurrage in the charter-party itself never arose. The ship got to Bo'ness on the 19th in the roads. As a matter of fact she never got into the dock, and never got into a berth ready for loading until the 26th of October. But the harbour-master gave evidence that if there had been a cargo ready there she might have got in sooner. A vessel, the "Ecossaise," had forfeited her right to continue at her berth, according to the harbourmaster's views, because she had not completed her loading, and therefore he sent her away from the berth at which she was lying. If all this had been known to the parties, and if the harbour-master had in his discretion allowed the "River Ettrick' to come, as I understand he says he would have allowed her to come in, then this vessel might have got in on the 21st.

That is the proposition of fact. The proposition of law is that a merchant must be always ready with his cargo at all times and in all places and under all circumstances to take advantage of any such contingency if it should arise. My Lords, there is not a fragment of authority for any such proposition, and I can imagine it would be a most serious thing if such a proposition were supposed to be laid down to regulate the mercantile community, because it might very seriously imperil the conduct of merchants in their business if it were to be supposed that the charterers of all these twenty or thirty ships (for it is said there were twenty or thirty ships there) were guilty of a breach of implied duty (the charter-party being in the ordinary form) in not having all their cargoes ready. I think I am entitled to say that no such case has ever been suggested in the Courts.

I therefore move your Lordships that this appeal be dismissed with costs.

LORD HERSCHELL-My Lords, I am of the same opinion. The question which the appellant seeks to raise at the bar is not raised by any finding of fact in the interlocutor. The utmost that could be done under any circumstances would be to remit the case with the view of having the facts which raised the point, if they were facts that had been really found in the appellant's favour in the Court below, inserted in the interlocutor. If the findings in the interlocutor are at variance with and contradict the facts which it is sought to have found, then of course there would be no ground for sending the case back. This House would be bound by the findings in the interlocutor. I cannot help saying this, that being very desirous of not in any way departing from the spirit of the statute which prevents appeals to this House except upon facts found in the interlocutor, I think it would be extremely desirable that in the case of these appeals from the Sheriff Court the facts should be found in the interlocutor.

Now, in this case the facts raising one point of law which was discussed and debated, and upon which the decision was pronounced in the Court of Session, are not found in the interlocutor at all. Whatever may be the true construction of the later words, and even if, looking at them alone, they are inconsistent with such a finding, it is obvious, and no one can read the judgment without seeing, that they were not intended to be inconsistent with it, and that in truth the facts relating to this point are not found at all. It is true that the Court below decided the question against the appellant on another and a different ground altogether; but it seems to me that that was no reason for abstaining from finding in the interlocutor those facts upon which not only a point of law depended, but a point of law which was decided in favour of the appellant. I think they should have been stated, because although, for reasons which I will give in a moment, I do not think they would have been sufficient, differing as I do from what was said by Lord Trayner, to entitle the appellant to judgment, yet at the same time it was a matter for discussion here, and a different view might have been taken of it on appeal.

My Lords, it is not necessary to say whether the finding as worded in the latter part of the interlocutor is inconsistent with those facts or not, because I am of opinion that, even supposing all the facts upon which the learned counsel for the appellant rely were stated, there would be no case made out for disturbing the judgment of the Court below. The case suggested on behalf of the appellant is this-by the charter-party the ship was to proceed to Bo'ness, and she was to load at a berth to be selected by the charterer, and the lay-days were to count from the time when she was berthed, and notice was given to the charterer. Undoubtedly that would impose by implication upon the charterer the duty of doing any act that was necessary on his part according to the custom of the port to enable her to get a berth. He could not defend himself from a complaint of the shipowner that his vessel had been delayed by saying that she was not in a berth, when she was not in a berth because the charterer himself had failed in his duty to do some act on his part to enable her to get there. The appellant's case therefore is put in this way. It is said, although she did not get into a berth until the 26th of October, she might have got into a berth on the 21st if the appellant had done an act which he failed to do, namely, had a cargo ready there. That arises in this way. In ordinary turn she could not have been berthed until the 26th, but owing to a vessel which was in the berth not having her cargo there, the harbour-master would have put the "River Ettrick" in berth if her cargo had been ready to be immediately put on board. The question is whether on these mere facts there was an obligation on the part of the charterer to have the cargo on the quay so that the vessel might have been berthed on the 21st.

It is alleged that the obligation existed in point of law, that at all ports, under all circumstances, however unreasonable it might be to anticipate such a contingency, however deficient the quay might be in the means necessary for storing or protecting or preserving cargo, whatever difficulties there might be in short, that was an obligation always resting upon the shipper.

My Lords, no authority has been cited for that at all, and I am of opinion that such a construction of the shipper's obligations would be altogether unreasonable. 'I do not for a moment deny that he is bound to do whatever is reasonable on his part with a view of getting the ship berthed at the earliest period that is reasonably possible; and it may be that there are circumstances in which owing to the custom of the port, owing to contingencies of this kind being very common, owing to the provision that is made to facilitate cargo remaining there for a few days, and a variety of other circumstances, it would be the duty of the shipper to be prepared by having his cargo there, to do that which would have enabled the vessel to obtain an earlier berthing than would otherwise have been obtained. All that. I say, may be the case, but no such facts are found in the present case, and the appeal can only be decided in favour of the appellant by holding that at all ports, and under all circumstances, however remote and improbable might be the contingency, the duty lay upon the charterer to have cargo there. That is a proposition to which I am unable to give my assent. For these reasons I agree in thinking that the appeal must be dismissed.

LORD MACNAGHTEN and LORD MORRIS concurred.

Ordered that the appeal be dismissed with costs.

Counsel for the Pursuer and AppellantJoseph Walton, Q.C.- Leck. AgentsLowless & Co., for J. & J. Galletly, S.S.C.

Counsel for the Defenders and Respondents - Bighan, Q.C.-H. T. Boyd-J. J. Cook. Agents-Wilson & Son, for Boyd, Jameson, & Kelly, W.S.

Thursday, March 26.

(Before the Lord Chancellor (Halsbury), Lord Watson, Lord Macnaghten, and Lord Davey.)

OGSTON v. STEWART'S TRUSTEES. (Ante, vol. xxxi. p. 153, and 21 R. p. 282.) Fishings-Boundaries of Salmon Fishings -Salmon Fishings ex adverso of Adjacent Lands-Possession-Prescription.

A glebe bounded on the north by a river for a distance of 350 yards, marched