Digest of Decisions. COURT OF SESSION. FIRST DIVISION. MUNRO v. EASTER ROSS UNION, ETC.-May 28. Contract-Liquidate Damages. The pursuer, Donald Munro, builder and contractor, Tain, sues the defenders for certain sums alleged to be due to him under a building contract between him and the board of management of the Easter Ross Union, dated 17th August 1848. By the contract, the pursuer undertook to erect, by the 1st September 1849, a common poorhouse for the nine parishes comprised within the Union. The contract price was L.2475, payable by fixed instalments, on certain stages of the work being completed, and the balance being payable on the completion of the work to the satisfaction of the inspector. The contract contained a clause in these terms, viz.: And the said Donald Munro engages to complete the work within the period aforesaid, under a penalty which it is hereby agreed shall be considered stipulated damages, not subject to modification, of L.5 sterling for each week after the said date (9th September 1849) until the completion of the work.' On completion of the works, on 15th May 1850, the balance due to the pursuer was L.744, 18s. 11d., payment of which was offered under reduction of L.175, as liquidate damages due by the pursuer for thirty-five weeks' delay in completing his contract, being at the rate of L.5 per week. The pursuer, although he at first declined, ultimately accepted payment in September following, under deduction of the penalty, but with a reservation of his legal claim to full payment, the Board having refused to adopt the recommendation of the Parochial Boards of six of the nine parishes within the union, that the penalty should be remitted, or at least mitigated. The present action was therefore brought against the Board of Management and their constituents, the Parochial Boards of the several parishes, to recover payment of the L.175 deducted as damages, and interest thereon, besides interest on the third instalment for the period between 26th November 1849, when due, to 18th January 1850, when paid. The pursuer's averments on record were in substance as follows:-The contract restricted him to quarry in Caithness for the flagstones required in connection with the foundations, and that in consequence of the difficulty and delay in procuring these flags, he at first declined to sign the contract, but was induced to do so by the assurance of the Board that he had nothing to fear, as he was dealing with gentlemen,' which was meant as an engagement not to exact the penalty for delay not arising from the pursuer's fault. In the winter 1848-49 the building was delayed in consequence of a vessel having been lost when carrying stones for the purposes of the building. The pursuer then commenced and carried on the works without delay until 15th May 1850, when they were delivered over to the Board's inVOL. VI. NO. LXVII. JULY 1862. 3 A spector of works. The poorhouse was not occupied until October 1850, five months after its completion (a fact admitted by the defenders), and no loss or damage had been sustained by them in consequence of the works not being completed until May 1850. The pursuer maintained in point of law (1) That having been prevented by inevitable accident, and other causes over which he had no control, he was not liable in penalty; (2) That no loss or damage having been sustained by the defenders, no penalty was exigible; (3) That in any view the penalty was excessive, and should be restricted to the actual loss sustained; (4) That the defenders were not entitled to exact the contract penalty in consequence of the verbal agreement not to do so if the delay was not imputable to the pursuer's fault. The Lord Ordinary allowed issues; but the Court recalled the interlocutor, holding that the pursuer was bound by his agreement, and that proof of a verbal agreement not to enforce was inadmissible. Pet.-ANDREW SHEILLS, FOR DISCHARGE-May 30. Bankruptcy-Discharge. This was a petition for the discharge of a sequestrated bankrupt. He was sequestrated on his own petition, with concurrence of John Sheills, farmer, Myles, near Tranent, his father, on 18th March 1859. After the lapse of three years, he applied for his discharge. This was opposed by five of his creditors out of twenty-one. The gross amount of the debts was stated to be L.1150. They opposed on the grounds that the bankrupt had not made a fair surrender and discovery of his estate. From his examination, it appeared he had been a potato merchant, buying in Haddington and selling at Newcastle, and he stated that his bankruptcy was caused by his brother, who sold for him in Newcastle, refusing to pay him a debt of L.1010, due to him upon the whole business transactions down to his sequestration. From another part of his examination, it appeared that he ceased to have business transactions with his brother in February 1858, and at that time a state was made up showing that L.426 was divisible between him and his brother. The examination did not disclose how the difference between the half of the last sum and the larger sum of L.1010 was to be accounted for. It was stated that the trustee had been unable to make anything of this debt, and that his brother denied that it was due. Another ground of objection was that the only asset on the estate was L.3, 16s., and the expense to which the trustee had been put was L.4, 5s. There had been no dividend, and no composition offered; but the trustee upon his estate had given a favourable report to the bankrupt. In these circumstances, Lord Ormidale had found the bankrupt entitled to his discharge, stating that nothing sufficiently tangible to support these objections could be found by him in the examination of the bankrupt and in the sequestration proceedings. To-day, the Court unanimously recalled this judgment, the LordPresident stating that the grounds of the application were not satisfactory, while those of the opposition were; that the bankrupt's motive for setting up the large debt alleged to be due by his brother was that he had to balance the claims against him and to account for the loss of his creditors' money. DINGWALL'S TRUSTEES v. EDMOND-June 4. The defender is Francis Edmond, advocate in Aberdeen, and trustee for behoof of Lord Kintore's creditors, and the pursuer is the trustee on the sequestrated estate of Walter Dingwall, sometime factor to Lord Kintore, and tenant of the farms of Dumforbes and Honeyhive, on Lord Kintore's estate of Haulkerton. The object of the action is to reduce or give redress, by way of damages, for a renunciation by Dingwall of the lease of these farms in favour of Lord Kintore and his creditors. The grounds of action are very indistinct and obscure, owing to the unsatisfactory state of the record, which was remarked on by the Court both during the debate and at the advising, Lord Deas observing that neither party at the writing of the record seemed to have had any idea of the case they were to maintain before the Court. Two issues were proposed; the first alleging that the defender, Francis Edmond, fraudulently procured the renunciation from Dingwall when he was insolvent, and the second alleging that the said defender purchased the renunciation by Dingwall within sixty days of bankruptcy, in violation of the Act 1696, cap. 5, to the injury of Dingwall's creditors. These were the grounds of action mainly insisted on. The Court unanimously disallowed the issue, under the Act 1696, cap. 5, as there was no averment that the renunciation was for a prior debt, but, on the contrary, that it was gratuitously; and they allowed the pursuer to give in another issue as to fraud. Lord Deas indicated an opinion that the pursuer's only remedy was not damages, but the reduction of the renunciation, and of the new lease, so as to reinstate him in Dingwall's place; also that the allegation that Edmond had, in the position of trustee for Dingwall's creditors and Lord Kintore's creditors, sacrificed the former to the latter in regard to this lease, was a ground of action against him personally, but not as trustee for Lord Kintore and his creditors. WALLS v. CONNELL AND BELL-June 5. Arbitration-Reduction of Decree. This was an action of reduction of an interim decree-arbitral on the ground of corruption. The pursuer, William Walls, merchant in Glasgow, in February 1858, bought from the defender, Mr Connell, accountant in Glasgow, a house in Glasgow then in course of erection. The price was to be paid by instalments of not less than L.100 as the work proceeds to the satisfaction of Mr William Wylie, builder, Glasgow, and as the same shall be authorised by Mr George Bell, architect in Glasgow (the other defender), but under deduction always of such sums of penalty as shall be awarded by the said George Bell under the reference hereinafter expressed.' By the contract, it is declared, any difference that may occur between the parties as to the finishing, or generally under these presents, is hereby referred to the amicable decision and final sentence of the said George Bell as arbiter, mutually chosen between the parties.' After the work had proceeded a certain way, and various payments to account had been made, the pursuer judged it necessary to resort to the submission clause of the contract. On 29th June 1858, he lodged a minute, praying the arbiter to award him certain penalties for the delay in completing the house. Afterwards the arbiter ordained the pursuer to 6 make certain payments to Connell; and by interlocutor, dated 24th August 1858, ordained him forthwith to pay Connell L.120. This action of reduction was thereafter brought of this interim award, and of the submission itself, but the pursuer restricted his conclusions to reduction of the interim award. He proposed two issues, one raising the question of ultra vires, the other of corruption. His grounds for the first were, that the award was pronounced without the arbiter inquiring whether the work was proceeding to the satisfaction of Mr Wylie, and without considering the pursuer's claim for penalties, and therefore was ultra vires. The alleged corruption consisted of the arbiter having transacted with Connell without the pursuer's knowledge, and having become guarantee for the price of the marble chimney-pieces, amounting to L.17, 10s., whereby, it was alleged, the arbiter acquired an interest to award money to Connell to pay the marbles, and thus discharge his own guarantee. The defenders consented to a proof on commission before answer, but the pursuer refused to consent, and craved approval of his issues. The Lord Ordinary reported the case, intimating an opinion that the pursuer was not entitled to an issue of ultra vires, and expressing doubts how far he was entitled to one on the ground of corruption. To-day, the Court unanimously dismissed the action as irrelevant. It was a very peculiar action. It sought to cut out and reduce an interim award from a submission, while leaving the submission itself subsisting. This was not actually incompetent; but it would require very precise averments to support such an action. All the averments here were vague and indefinite. It would never do to expose submissions to challenge on such grounds. The alleged guarantee of the arbiter was only to accelerate the execution of the contract, and the amount was such a trifle as to make the whole affair ridiculous as a ground on which to establish a case of corruption. LEITH V. LIEUTENANT-COLONEL R. W. D. LEITH AND OTHERS.—June 5. Entail-Aberdeen Act-Shootings. The questions here arise as to bonds of provision under the Aberdeen Act 5 Geo. IV., cap. 87, burdening the entailed estates of Freefield and Glenkindie to the extent of L.7000, or at least three years' rent; and the following points for opinion were sent by the First Division to the whole Court: 'Whether, in calculating the amount of the provisions in favour of the younger children, the yearly rents or values of the following subjects, or any, and which of them, are to be taken into computation, viz. :— 1st, The mansion-house, offices, garden, and policies situated on Freefield, and the mansion-house, offices, garden, and policies, situated on Glenkindie, or either of them? 2d, The right of shooting on the estate of Glenkindie? 4th, The fishing on the river Don?' All the Judges were of opinion that the mansion-houses, etc., ought not to be taken into computation, and that the salmon-fishing ought to be. As to the shootings, which were unlet but valuable, there was a difference of opinion. The Lord Justice-Clerk, Lord Benholme, and Lord Neaves, with whom agreed the Lord President and Lord Curriehill, thought they could not be included in the yearly rents or values; but the majority, consisting of Lords Cowan, Ardmillan, Mackenzie, Kinloch, Jerviswoode, and Ormidale, with whom Lord Deas concurred, held that they ought to be included. The substantial ground of the majority was the large money value of rights of shooting when let. The ground of the minority was that the right of shooting is not a right of property. Pet.-CAMPBELL v. BECK.-June 11. Sequestration-Competition-Trust. This was a petition by creditors of Alexander M'Farlane, sometime of the Caledonian Hotel, Glasgow, for sequestration of his estates. M'Farlane opposed the application on the ground that so far back as October 1860, he had executed a trust-deed conveying his whole estates to James Torreus and others, as trustees for behoof of his creditors, and that these trustees had entered into possession of the estate and carried on the business of the hotel, and that the petitioners were acceding creditors to this trust, as well as all the other creditors, with the exception of two heritable creditors. The reason given by the petitioners for now craving sequestration was that these heritable creditors had executed a poinding of the ground, and would carry off the moveable effects on it if they were not stopped by a sequestration. The Lord Ordinary (Ormidale) held that by acceding to the trust-deed the creditors had barred themselves from demanding sequestration, and that it seemed most inequitable that the petitioners and other creditors who acceded to the trust who had taken and kept possession of the respondent's whole means and effects since October 1860, during which they speculated and traded with the same for their own advantage and according to their own views, without any control or interference whatever on the part of the respondent, should now be allowed, when they find that the heritable creditors are not to delay longer in taking the ordinary and necessary measures available to them to make their claims effectual, to throw the trust arrangement entirely aside, and thereby destroy the rights acquired by the respondent under that arrangement just as if it had never been entered into.' The Lord President said that the petition for sequestration was one in itself competent, and that the Lord Ordinary was bound to grant it except it was opposed on cause shown. M'Farlane had appeared to show cause why it should not be granted. The reason was that a trust-deed had been granted; but this trust-deed did not bind those who acceded to it, unless the other creditors agreed. It would be unjust to allow the heritable creditors who had not acceded, to carry off the moveables, by preventing sequestration; besides the trust deed itself contemplated the possibility of sequestration being necessary to carry out its object. The other Judges concurred.-Interlocutor altered. TURNER v. M'LELLANDS AND OTHERS.-June 12. Arrestment-Landlord and Tenant. The petitioners for recall of arrestments are trustees for the Monkland Iron and Steel Company, and the creditors of that company. They were appointed in 1861, after this company had suspended payment, to wind up its affairs. The respondent is the proprietor of Barbauchlaw, of which estate the minerals were leased by the Monkland Iron and Steel Company in 1854, before the respondent became proprietor. By the lease, assignees |