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Notes of Cases.


(Reported by William Guthrie and Donald Crawford, Esquires, Advocates.)


SHEPHERD & Co. v. BARTHOLOMEW & Co.-Jan. 23.


Shepherd & Co., Manchester, sued Bartholomew & Co., Glasgow, for £4085, "being the price of cotton bought by the defenders from the pursuers, and for which two bills were drawn by the pursuers upon, and accepted by, the defenders," dated respectively 22nd Dec. 1864 and 2nd Jan. 1865. The pursuers set forth that they had for some years past had transactions in cotton with the defenders, and also with the firm of John and Robert Cogan of that city; that Mr Robert and Mr John Cogan were, till 10th April 1865, partners of both firms; that Robert was in the habit of buying cotton for both firms from pursuers; and that the pursuers were in the habit of drawing on either firm at discretion, according to the respective liabilities of the firms. In Nov. and Dec. 1864, Cogan ordered a quantity of cotton from the pursuers, who invoiced it to J. & R. Cogan, and the pursuers drew three bills, dated 19th and 22nd Dec. 1864, and 2nd Jan. 1865, on John Bartholomew & Co., for £4177, £1706, and £2378; and two on J. & R. Cogan for £3865 and £1980. These were accepted and fell due in March and April 1865, but were not retired. Fresh bills were drawn by the suers, one on Bartholomew & Co. for £4173, and two on J. & R. Cogan for the rest of the sum; and were accepted. Thus, the larger amount of the debt was transferred to the Cogans; it did not appear by what arrangement, or whether by any arrangement. The original bills remained in the pursuers' possession. In April 1865 both Bartholomew & Co. and the Cogans stopped payment, and the pursuers ranked for the second bills on both estates and received dividends of 6s. 8d. on the Cogans', and 13s. per pound on Bartholomew & Co's estate, under reservation, as they say, of all their rights under the old bills. The pursuers maintained that the fresh bills were merely an additional security for the original debt. The defenders pleaded that the bills libelled on had been renewed and superseded by the second set of acceptances, on which, moreover, the pursuers had accepted composition, ranking for the full debt. They averred that there had been a uniform practice between the parties that, when bills were renewed, the old bills were not given up till the account or transaction was finally closed. The Lord Ordinary (Jerviswoode), before answer, allowed both parties a proof of their averments. The pursuer reclaimed, maintaining that the extinguishment of the bills could be proved only by writ or oath.

The Lord President said that the conclusions showed that this was not purely an action on the bills, but for the price of the cotton; and that the statement of the pursuers themselves showed that part of the price of the cotton had been extinguished by payment of the dividends. Practically the

aim of the action was to recover the dividend on the earlier bills now sued on also. That itself implied some inquiry. His lordship thought it competent to allow a proof before answer as to the transactions between these parties, as to the footing on which the bills remained in the hands of the pursuers, and as to the way in which some of the amount was extinguished. It would still be possible to hold, after the proof had been taken, that the rule of law contended for by the pursuers was applicable in the circum


Lord Curriehill said that if this were a suspension of a charge, or if the action had libelled on the bills alone, or if the pursuers had made no admission as to payment of the dividends, the rule of law as to writ or oath would admit of no exception; and his lordship would enforce that rule, however suspicious he might be of the truth of defender's statement. But that rule did not always apply. In Burns v. Burns, 3 D. 1273, Lord Fullerton correctly stated the principle of law. Here the pursuers began by stating what the value consisted of. Indeed the action was not laid on the bills, but was an action for the price of goods sold and delivered. But this was only important as a judicial statement of the value for which the bills were granted. But they state, further, that the goods were ordered by and delivered to another party, and not to the defenders. This alone brought the case into an unusual position, and one calling for inquiry. There was no question as to the constitution of the debt, but only as to its subsistence. The question was, this party not having enforced his bill when it fell due, and having received other bills, and received a dividend on these, on what footing were such bills received? In conformity with Burns v. Burns, there should be inquiry. The onus was on the defenders, and the rule of law might still come into operation if they should fail to establish their averments. His lordship remarked that the action was brought for payment of the full sum, not giving credit for the dividends, and that alone was a reason for inquiry. Lord Deas had no doubt as to one thing-viz., that although the summons was for payment of certain sums as the price of goods for which bills were granted, that did not exclude the pursuer from standing on the law of evidence applicable to bills of exchange. That was quite a correct, and indeed the only safe way of libelling, on the bills. It was a different matter whether, on the detailed statement of facts, the pursuer might not exclude himself from the benefit of that law. His lordship saw no incompetency in allowing a proof before answer.

Lord Ardmillan concurred.

The Court adhered.

Act.-Sol.-Gen. & Lancaster. Agents-H. & A. Inglis, W.S.--Alt.— Young & Gifford. Agents-Maconochie & Hare, W.S.


In 1829 Duff's predecessor conveyed the fishings of Orton in the Spey to the Duke of Gordon's trustees, in whose right the pursuer now is, "reserving always to me the said Richard Wharton Duff, and my successors in the said lands and estates of Orton, the privilege of fishing with the rod for our amusement only." The fishings were conveyed as then possessed by tenants conform to a tack, which reserved to Mr Duff and his successors, and to his friends, the right of angling, subject to the condition of paying for all salmon

taken. The Duke of Richmond brought this action for declarator that the right reserved was personal to Mr Duff himself individually, and that he had no right to delegate or communicate it to members of his family or to friends staying in his house, and for interdict. The Lord Ordinary (Barcaple) decerned in terms of the conclusions of the summons. The defender reclaimed.

The Lord President-The terms of the disposition are ample, and the reservation bears in itself to be a mere reservation in favour of the disponer and his successors individually. Looking to these words alone, I see no ground sufficient in law to enable me to extend the application of the words beyond Mr Duff and his individual successors in the lands, to whom in their own plain meaning they are limited. There was some speculation in the argument as to whether the reserved right might not come to be exercised by various persons, such as heirs portioners, or in the case of a subdivision of the lands of Orton. That may at some time raise a question, but in the meantime the question is whether it is a privilege that can be communicated by Mr Wharton Duff. I see nothing that can support that inference. It is a limited privilege on the face of the deed. I then look to see whether any circumstances are disclosed which could give to the limited reservation a more extensive application; but nothing is alleged that implies anything like a mutual construction of the clause. There was such matter in the case of Lord Aboyne v. Innes (6 Pat. 444), which was decided on the footing of subsequent usage. There is a reference to a lease which contains the usual clause descriptive of property let, as held by a particular tenant at the time. The question is raised whether certain conditions in it are imported or implied in the conveyance; but Mr Duff did not much found on the lease, and it may be said that it is a two-edged weapon, and that the sharper edge is against him. This clause, in its present terms, may have been an oversight on part of Duff, but we have no positive ground for saying so. It was a money transaction for a full price, and I see no ground to suppose that it was without full consideration that the proprietor of Orton limited the right reserved to himself individually and his successors. At all events, it is not in our power to alter what the parties have fixed for themselves by the terms of the deed.

Lord Curriehill concurred.

Lord Deas never found more difficulty in forming a satisfactory opinion the one way or the other. While it was certainly a question of intention, the parties had not expressed their deed so as to let it be seen what they meant. If they had intended to prevent the Court having any satisfactory opinion at all on that point, they could hardly have succeeded better. It was necessary to look to the nature of the right reserved, and Mr Duff's position as heritable proprietor of the fishings conveyed, and of the estate of Orton. The right reserved was an heritable right attached to the estate, not a personal privilege to Mr Duff, his heirs, or his singular successors. It was a right reserved for all time to the estate itself. If not that, it was, according to our law, nothing at all. If we stop in the reservation at the words "fishing with the rod," that would have been a right of angling, and it might have been an unlimited and exclusive right, and it is a heritable right which may be separately enjoyed. But there was a limit put on that by the words, "for our amusement only." Suppose

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the "our to be omitted, it would be impossible to say that that was a limitation to Duff and his individual successors. That limitation would only limit the purpose of the fishing. That brought it to the narrow question whether the "our" makes all the difference contended for. His lordship found it difficult to suppose that could be the meaning. If so Mr Duff must have been a more selfish man than his lordship could easily imagine him to have been. It manifested a desire for personal and solitary pleasure, which he could not believe to have been according to his nature. The reservation of right to keep a boat was certainly with a view to the fishing, and supported this view. It was the supposition, on the other side, that the right of angling in every way was given to the purchaser, subject only to the right of Mr Duff to angle also. His lordship thought that the right of angling was reserved to the estate, subject only to the limitation that it should be exercised only for amusement. Either view was attended with difficulty; but, on the other view, if Mr Duff died leaving six daughters, each would have a right to angle for amusement; or if he disponed his estate to seven sons, all the sons could angle; or if he divided his estate into portions as for villas, it would follow, as was fixed in the case of Loch Rannoch, that the privilege also would be divided. All that led to great embarrassment; and if their lordships had not thought differently, he would have thought the view he had suggested led to less difficulty. If the lease affected the question at all, it rather tended the opposite way from that in which the Lord President viewed the case.

Lord Ardmillan concurred with the majority, and the Court adhered. Act.-Clark and Rutherfurd. Agents-Gibson-Craig, Dalziel, & Brodies, W.S.-Alt. Sol.-Gen. and Adam. Agents-Tods, Murray, & Jamieson, W.S. INGLIS & BOW v. SMITH & AIKMAN.-Jan. 26.

Arrestment-Breach-Petition and Complaint.

The peti

This was a petition and complaint for breach of arrestment. tioners had raised an action against Maclean, St John's, New Brunswick, and had arrested on the dependence the ship Julia Langley, lying at Glasgow, of which Maclean was part owner. Upon this arrestment being intimated to the other owners and Thomson Aikman & Co., the agents of the charterers, some correspondence passed as to loosing the arrestments on caution; but before any arrangement was completed, the law-agents of Thomson Aikman & Co. proposed that the vessel should in the meantime be allowed to proceed to the Tail of the Bank at Greenock to load gunpowder. This proposal was declined by a letter delivered on the same day; but, notwithstanding the ship proceeded next morning to the Tail of the Bank, whither she had to be followed and dismantled by a messenger sent after her by the arresters. The present petition and complaint was brought against the captain and the agent of the charterers in Glasgow, praying for reimbursement of expenses and such penalty as should be thought fit.

The defence was (1) That there was no attempt to remove the vessel beyond the jurisdiction of the Court, without which there could be no breach of arrestment; and (2), That even what was done was done innocently, and because the letter refusing permission to remove the vessel was not received till she had sailed down the river.

In the course of the discussion, the question was started whether, in a petition and complaint, the Court could award any sum for expenses, or any sum demanded as civil redress. It was maintained by the respondents that such a petition was for punishment and nothing else, for a penalty to be paid, not to the party, but to the Crown. If the application was found to be unjustifiable the petitioners themselves would be liable in damages instead of recovering them. Authority referred to-Bell v. Jamieson, 24th June 1848, 10 D. 1413.

The LORD PRESIDENT This application is not of a usual kind. I don't recollect of any application praying for the punishment of a breach of arrestment as a contempt of Court. In cases of breach of interdict, that is common enough. I don't mean that a party is entitled to violate an arrestment, or that it is not an offence to be punished; but it is not made by the Statute, and has not hitherto been treated as contempt of Court. It is not quite parallel with breach of interdict. Arrestment is obtained as a matter of course, while an interdict is an ordinary sentence of the Court. The respondents' contention that, notwithstanding the arrestment, the master and owners were entitled to take the ship away provided they did not take it beyond the jurisdiction of the Court, or more than three miles from the coast, appears quite extravagant. But arrestment is also distinguishable from interdict, because it is every day made a matter of arrangement how it is to be observed. We must, therefore, consider the arrangement between the parties. Here there was clearly a communing as to consenting that this vessel should have a certain license as to loading and preparing for sea; and if it does appear that there was a misunderstanding as to this arrangement, it is difficult to hold that the kind of criminality pointed at in the petition and complaint has been incurred. Here there seems really to be some reason to suppose that there was to be an arrangement, and a party became security for its fulfilment. I don't think this is the kind of criminality that calls for punishment, though there was some rashness and a violation of the strict letter of the law. On the other hand, an incompetent demand is made-viz., the demand for expenses. It may be that the vessel going down the river caused additional expense, but that is part of the expense of the proceedings which, if they succeed, the petitioners may recover in the cause in which the arrestment

is used.

The petition was dismissed, and neither party found entitled to expenses.

Act-Young and M Lennan. Agents-Morton, Whitehead, and Greig, W.S.-Alt. Sol.-Gen. and Gifford. Agent-John Ross, S.S.C.


Burgh Managers.

The Burgh of Kilrenny was disfranchised in consequence of an error in the election of magistrates by a judgment of the Court in 1829, when interim managers were appointed. This was a petition by managers appointed in 1847, who desired to resign, for the appointment of successors with certain powers. The Court granted the prayer with the exception of the powers to discharge the duties of bailies of the said burgh, to conduct the judicial business of the said burgh, to appoint one of their number to

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