Crowe, &c. v.

Nov. 20. 1851. said charter-party. The pursuers claimed £24 of demurrage, as for six days, at the rate of £4 per day, as stipulated, which the Hutchinson, charterer refused to pay. Proof on both sides was led, and the Sheriff found for the pursuers.

&c.

The defenders advocated, and the Lord Ordinary (Wood) having adhered to the Sheriff's judgment, the defenders now reclaimed.

"

Hector, for defenders and reclaimers. The delay is imputable to the pursuers themselves, or those responsible for them By the practice of the port of Grangemouth, timber-ships are unloaded by gangs of workmen called "lumpers." Had "lumpers been employed, no unnecessary delay would have occurred. No protest for demurrage was taken, nor any written intimation made that it was to be demanded, as was necessary if the claim was to be made. Counsel also referred to the proof, where vessels of equal burden with the "Hexham" were said to have been discharged with more despatch.

Pattison, for pursuers. The cases referred to occurred in summer, when the working hours are much longer than in December. It has not been proved that the pursuers were under any obligation to employ "lumpers," nor has anything unusual or culpable in the conduct of the master been established, so as to emancipate the defender. Protest is not necessary to found a claim for demurrage.

The LORD PRESIDENT. The onus of proving that there was improper delay in discharging falls on the defenders, but there is no insinuation in the proof that any one ever remarked how slowly the delivery was going on. There is no evidence that the pursuers were bound to employ lumpers, and therefore there is no reason for altering the interlocutors reclaimed against.

LORD FULLERTON was of the same opinion. It might not be indispensable to make a formal protest in order to preserve the right to object, yet it might have been of importance had the defenders complained of delay at the time, which they did not. The defenders have failed to prove improper or culpable delay on the part of the owners of the vessel.

LORDS CUNINGHAME and IVORY concurred.

THE COURT refused the reclaiming note, with expenses.

Pillans Scarth, W.S., Reclaimer's Agent.
Charles Spence, S.S.C., Respondent's Agent,

No. 23.

SECOND DIVISION.

November 20. 1851.

FINLAY V. OUTRAM.

SINCE this case was reported (p. 13.), it was put to the roll for Nov 20. 1851. adjustment of the interlocutor of the Court, and the following interlocutor, as adjusted, was this day signed.

Edinburgh, 15th November 1851.-The Lords, on the report of Lord Robertson, and having advised the Record and whole Process, and heard counsel for the parties thereon,-In respect that the pursuer undertook to supply a ventilating apparatus for four rooms in the defender's house, and that the apparatus so furnished by him has proved, as matter of fact, utterly useless for the purpose, repel the reasons of advocation, and remit the cause simpliciter, and decern: Find the advocator liable in the expenses incurred in this Court, allow an account to be given in, and remit to the auditor to tax the same, and to report.

Finlay v.
Outram.

No 24.

FIRST DIVISION.

November 21. 1851.

SHANKS v. Callon and Anderson.

Bankruptcy-Composition.-A creditor on a bankrupt estate had acceded Nov. 21. 1851.

Callon, &c,

to a composition arrangement, and admitted that he had received payment of a sum about equal to the composition effeiring to his debt;-Shanks v. Question, whether the sum so received was to be held as a payment under the composition contract.

Nov. 21. 1851.

Shanks, v.
Callon, &c.

Advocation from the Sheriff of Lanarkshire.

On 8th December 1843, George Callon and William Anderson, brewers in Airdrie, granted a bill for £43, 7s. to Henry Shanks, farmer, payable three months after date, for barley sold to them by Shanks. Immediately after the granting of the said bill, Calion and Anderson became insolvent, and offered a composition of 8s. per pound on their debts. On 6th January 1844, Shanks accepted the offer of composition, which was qualified with the condition that it was to be paid within two months after that date. On 11th March the bill fell due, and soon thereafter Shanks caused a charge to be given to Callon for payment, under deduction of £17, as having been paid to account. He thereafter proceeded with poinding for the balance, which gave rise to a summary application by Callon to the Sheriff for interdict against Shank's diligence, which was the foundation of the present proceedings.

This sum of £17 corresponded almost exactly with the amount of composition agreed to be taken by Shanks. On the one hand, Callon contended that the £17 credited in the charge must be held as payment of the composition on the said bill, and extinguished all further claim for the same. On the other hand, Shanks maintained that he got back barley to the value of £17 at the time of granting the bill, and denied that he had got payment of the composition. In his account-book he credits Callon and Anderson with £17, on the same date that he enters their bill, but the same is not marked as composition. The question therefore came to be, whether he had got payment of the composition.

The LORD ORDINARY (Cuninghame) decided that he must be held to have got payment; for if he got back £17 worth of barley, why did he take a bill for £43, 7s. instead of £26 odds, being the balance after deducting the £17; and if the £17 was the value of barley returned, he thus obtained a fraudulent preference, to the amount of £17, over the other creditors. He had not shewn, therefore, that the £17 was paid for any legitimate purpose other than the composition.

Shanks reclaimed.

Pattison and Solicitor-General for reclaimer. It is denied that payment of the composition was made, and no written evidence of

the payment is produced. The only competent mode of proof is Nov. 21. 1851. by writ or reference to oath.

Shanks .

Macfarlane for respondents, argued that the amount and other Callon, &c. circumstances imported a deduction given in respect of the accepted composition.

The LORD PRESIDENT. The question is not whether Shanks has obtained an illegal preference to the £17, but whether there is sufficient legal evidence to shew that he has obtained payment of the composition effeiring to the bill on which he charged. I do not feel warranted in holding that there is such evidence, but I would at same time reserve right to the parties to challenge this transaction as an illegal preference.

LORDS FULLERTON and IVORY concurred with the LORD PRE

SIDENT.

LORD CUNINGHAME.-I must own that notwithstanding what I have heard, I retain very clearly the opinion expressed in my interlocutor and note. The facts here established-in part by the judicial statements of the reclaimer-in part by the extracts from his books and by the fact of the delivery after bankruptcy of a commodity corresponding within a shilling with the composition on the amount of the defender's debt-are, to my mind, conclusive of the fact that the debt was extinguished. I cannot resist such an accumulation of evidence, and am not at all moved by the remark that the £17 worth of barley given back to the defender, is not entered in his loose memorandum book specially as composition. The figures themselves amount to proof; and no other feasible explanation of that irregular transaction is given by the defender.

The COURT, by a majority, held that there was no proof of the composition having been paid, which could only be done by writ or oath of party; and there having been much litigation and various advocations, gave expenses to both parties of the advocations in which they had respectively been successful.

Campbell & Traill, W.S., Agents for Reclaimer.
William Muir, S.S.C., Agent for Respondents.

SECOND DIVISION.

No. 25.

November 21. 1851.

Nov. 21. 1851.

Anderson v.
Burness.

ANDERSON V. BURNESS.

Delivery of Goods-Double Receipt-Relief.-Circumstances in which a party whose employers retained, in an accounting with him, a sum overpaid by him to a third party, was entitled to relief from that third party.

This was an advocation from the Sheriff of Kincardineshire. The pursuer was in the service of Alexander and Robert Smart and Company, grain-merchants, Montrose; his employment being to receive and weigh, and grant receipts for the grain delivered to that Company at Gourdon, for which receipts the holders were afterwards paid. On the 25th November 1846, Hugh Burness, the defender, delivered to the pursuer a large quantity of oats, amounting in whole to L.28, 17s. 2d. sterling in value, and received a receipt for the same as the price of the oats. Some time afterwards, the defender obtained, by some means, a new or second receipt, in respect of which he received payment of another £28, 17s. 2d. Subsequently in looking over the receipts, Smart & Company observed and checked what they believed to be the error of the twice payment, and having failed to obtain repayment from the defender, they retained the sum paid in excess in settling accounts between them and the pursuer, whose neglect they held had occasioned the loss. The pursuer, therefore, raised his action for relief in the Sheriff-Court against the defender.

A Record having been made up in the Inferior Court, in which the pursuer averred and pleaded that although two receipts had been granted to the defender, only one delivery of grain had been made, while the defender alleged that he had given value in grain for both the receipts; and a Proof having been led, the SheriffSubstitute assoilzied the defender from the conclusions of the action, and found him entitled to expenses, which interlocutor was, on appeal, adhered to by the Sheriff.