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No. 21. LORD JUSTICE-CLERK.—The facts of this case are simple enough. We have Nov. 23, 1872. this contract for work to be performed between the defender, on the one hand, Field & Allan and certain tradesmen on the other, under which the former, in case of bank-v. Gordon. ruptcy, insolvency, or failure to implement the agreement on the part of the latter, is authorised to enter into possession of the works and complete the contract. On the other hand, the contractors are to be paid by instalments, and these are to be fixed by William Dickison, the architect superintending the works. Further, any disputes arising with regard to the completion of the work are to be referred to the amicable decision of Dickison, who therefore held an independent position, so far as this contract was concerned. This case refers to one of the instalments. A certain amount of work had been done by Aimers, for which Dickison gave his certificate. The employer recognised it, and the money which it certified to be due was paid to Dickison in the form of a cheque, for the purpose of being paid to Aimers. It turns out that Dickison had had some communications with the pursuers, who were creditors of Aimers, and not only had they been authorised by their debtor to receive the next instalment, but Dickison had undertaken they should receive it, and had encouraged them to make further supplies of slates on the faith of it. What took place afterwards has filled me with the greatest surprise. While the cheque was still in Dickison's hands the pursuers used an arrestment in his hands on the dependence of an action at their instance against Aimers. Dickison, instead of paying over the money to the pursuers, sent the cheque back to the employer's agents, with a request that the money might be sent direct to Aimers. The agents very properly wrote back that the money must remain with them, subject to any right Messrs Field and Allan might have to make it furthcoming. I think it clear that Dickison was bound, by his own undertaking, to pay the money to the pursuers, and also that Mr Gordon's agents received the cheque back on the same footing as that on which Dickison had received and held it. A second arrestment has been used by Field and Allan in Mr Gordon's hands, and this process of furthcoming has been brought. In defence there is no attempt to say that the instalment was not due. In these circumstances the defence is twofold, or rather is inconsistent. The defender, Gordon, says, in the first place, “that he never got back the money, for Skene and Peacock did not in that matter act for him ;" and, in the second place, “that he did get it back, and that he is entitled to retain it in extinction of a claim against the common debtor for nonfulfilment of his contract,” which is preferable to the arrestment in his hands which is now founded upon. The defender was, however, bound to take one or other of these views, and in fact now takes the latter. And the only question is, whether he has any claim of retention. I think he has not, for he put the money out of his hands when the cheque was sent to Dickison, and never received it back excepting on a footing which bound him, or his agents, to hold it subject to the pursuers' claims. It is not necessary for us to decide any abstract question in regard to the effect of arrestment in a contract like this, in which the price is payable by instalments. This contract differs, as regards the rights of the employer, from an ordinary mutual contract in which the price is payable when the work is completed; on the other hand, an obligation to pay by instalments does not constitute a series of separate contracts; and I am not satisfied that if, before an instalment, already due, has been paid, the contractors became bankrupt, the employer could not retain the sum, to indemnify himself for any loss arising from the non-completion of the work. It may be that in such a case the arresting creditor of the contractor could only use his debtor's rights, and would only attach them subject to the employer's plea of retention. Whether the debtor's continuing obligation to complete the contract in such a case would have that effect we need not decide. These questions do not arise here. In this case the money was beyond the defender's control. Skene and Peacock received it back as the defender's agents, but held it subject to the pursuers' rights against Dickison. The second arrestment therefore validly attached it in their hands, on the special footing on which they held it, and the defence of retention must be repelled. The pursuers are entitled to decree.

No. 21. LORD COWAN.—It seems to me that the circumstances of this case exclude the

plea of retention altogether. The position of Dickison in the contract admits of Nov. 23, 1872. no doubt. He is selected as the person at whose sight the work is to be perField & Allan formed, and by whom the instalments coming due are to be fixed. I apprehend v. Gordon.

that it is quite clear that the certificate or order for payment fixed and settled that Aimers was entitled to have a certain sum paid for work already performed. It makes no matter in my mind whether Dickison was servant of Mr Gordon of servant of Mr Aimers. As regards the matter in question he was sole judge under the contract. Thus, as regards his attempt to gain some advantage to himself in disregard of the previous agreement with Field and Allan, that their bill should lie over, on the understanding that he should intimate to them the issue of the next certificate: When he tried to repudiate this, and to get the money into his own hands, and to pay himself in the first place, he did that which no Court can sanction.

Your Lordship has explained the position of the money in the hands of Messrs Skene and Peacock, who acted for Mr Gordon. The money was in truth in their hands earmarked as belonging to Aimers. It is said that the arrestment of the 10th November was inept for the purpose of attaching the fund. But what room is there to plead retention when the arrestee himself acknowledges that he holds for the arrester, to whom the money had been in fact paid over? That arrestment was a very proper step to guard against diligence by other creditors, but cannot be permitted to give a right of retention which could not otherwise have been pleaded.

LORD BEN HOLME.—I confess I have felt in this case somewhat more difficulty than has been expressed by your Lordships. There is a large class of contracts entered into between proprietors and tradesmen the basis of which is payment by instalments. They are often considerable in amount, and embrace a tract of time. In such cases it is of the last importance to the tradesmen that they should be supplied from time to time with the means of enabling them to go on with their part of the undertaking. There can be no doubt that as the work progresses the landlord gets something added to his estate. It was so in this case with Colonel Gordon, and as he got value added to his estate he became bound to make payment of certain instalments. It appears to me that whenever the architect had given his certificate that so much work was done, Colonel Gordon, on the one hand, had had his estate increased by so much, and on the other was under the distinct obligation to pay over to the contractor the sum certified to enable him to go on with the work. If he withheld the money he might thereby embarrass his contractor, and be himself the cause of his ultimate bankruptcy during the progress of the contract undertaken.

That is the principle which distinguishes all such contracts from ordinary mutual contracts when there are no such stipulations as to instalments. A mutual is an indivisible contract-a unum quidnot divisible into parts. That is the general principle which underlies the judgment in the case of Johnston quoted to us. But I think that the Lord Ordinary's interlocutor plainly bears on the face of it an indication of the point where he has gone wrong. It is in the matter of fact. He says that Mr Aimers failed to complete his part of the contract, and that therefore Mr Gordon had to employ other parties to complete the work, and consequently that the pursuers have failed to establish that any sum was at the date of the arrestment founded on due by Mr Gordon to Aimers. That, I take it, is a finding that at the date of the action there was no sum due by Mr Gordon. If that is right, then the Lord Ordinary's interlocutor is justified. But it was not so in my opinion. The third finding is not well founded, for I think the pursuers have not failed to prove that any sum was due, but on the contract I think they have proved it very clearly. If the Lord Ordinary is mistaken, his whole judgment falls to the ground. For it will not do to say that in consequence of the contractor's subsequent difficulties the contract could not be gone on with, and that therefore damages are due to the defender. That has nothing to do with the performance of their obligation by the parties up to the date of the arrestments. If Mr Gordon had paid in virtue of the architects

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certificate, then Field and Allan would in all probability have supplied just No. 21. what was wanted to complete the work, namely, more material.

It appears to me that this case is in itself very clear, and that it has been over- Nov. 23, 1872. laid with extraneous matter which has caused us all the difficulty. Gordon had Fiel in his hand money due to Aimers, which must be held to have been either paid to him at the time, or to have been held by Gordon or his agents for his behoof, and must now be made furthcoming to his arresting creditors.

Gordon.

LORD VEAVES.—I think there can be no doubt as to the decision of the case, and I concur generally in the remarks of your Lordship and Lord Benholme on the subject of contracts, with, however, a certain reservation. I am not prepared to say that a sum may not be due as an instalment under a contract of this kind, and yet be retainable.

In the present case there is no doubt that the sum was prima facie due, and ought to have been paid. But in certain circumstances an employer might be entitled to say, “I see that there is something wrong, and I am not bound to pey." An arrester or assignee is, I conceive, in the same position as the original contractors, and the employer might be entitled to say, “I foresee the bankruptcy of the principal coming, and I must protect myself.” But I think the nature of the present case" renders it unnecessary to define the circumstances in which such plea of retention could be sustained. The money here was appropriated to the contractor. The employer had set aside the sum and sent it to his agent to be paid to Aimers. There was nothing at the time to justify retention, and the employer had no intention of retaining it. But then comes the very questionable conduct of Dickison, the bearing of which Messrs Skene and Peacock saw very well from the beginning. It can in nowise raise up again a right of retention in Mr Gordon. The money was clearly appropriated to Aimers, and his arresting creditors must now get it.

THE COURT accordingly recalled “ the interlocutor complained of, and decerned in terms of the conclusions of the summons.”

DAVID HUNTER, S.S.C.-W. F. SKENE & PEACOCK, W.S.-Agents.

V. Sinclair

THE LORD ADVOCATE, Petitioner and Respondent.Sol.-Gen. Clark, No. 22. Ivory.

Nov. 26, 1872. JAMES SINCLAIR, Respondent and Appellant.—Millar-Marshall. Lord Advocate Property-Straightening Marches-Act 1669, c. 17.—The procedure laid " down in Act 1669, c. 17 (anent enclosing of ground), whereby the Sheriff may be required to visit the marches, is imperative, and cannot be supplied by a remit to a man of skill, even of consent.

Property-Straightening Marches--Act 1669, c. 17.—The Act does not apply, (1) where there is in existence a natural boundary of steep cliffs, involving little danger of trespass ; nor (2) where the expense of erecting the fence would be disproportionate to the value of the pieces of ground to be benefited.

The lands of Holbornhead, in Caithness, belonging to James Sinclair, 2n Division. Esq. of Forss, are at one part separated from the sea by the lands of sh

Caithness, Scrabster, belonging to the Crown, which there consist of a long narrow Orkney, and strip of land lying between Scrabster Bay and a line of cliffs about 120 Shetland. feet high, and at some places very steep. The present boundary line between the two properties runs along the face of these cliffs, and is very irregular in form.

The Lord Advocate, as acting on Her Majesty's behalf, and on behalf of the Commissioners of Woods, Forests, and Land Revenues, brought this petition before the Sheriff-substitute of Caithness against Mr Sinclair, proceeding on the narrative of the two Scotch Acts 1661, c. 41, and 1669,

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No. 22. c. 17, as ratified by 1685, c. 39,* praying the Sheriff to remit “to Mr

- George Brown, tacksman of Watten, or such other person or persons as

28, 1872. your Lordship may appoint, to report upon the proper line of march beLord Advocate v. Sinclair.

tween the lands of Scrabster and Holbornhead respectively, where not already fenced, and upon an estimate of the just value of the parts to be adjudged respectively from the one heritor to the other, and to decern in favour of the party from whom shall be taken land of more value than the other, for any excess of value which may be found to be taken from such party; and thereafter to find that the most suitable fence to be erected on the whole line is a strong wire fence, or such other fence as may be reported by the said George Brown or the other person or persons to be named by your Lordship, and to ordain the same, or such other fence as your Lordship may find to be most suitable, to be erected at the mutual expense of the parties, and for that purpose to authorise contracts to be entered into under your Lordship’s sanction, and thereafter to decern against the respondent for one-half of the whole expense of such erection, and incidental thereto, and to find the respondent liable in the expenses of process,” &c.

The remit was granted by the Sheriff-substitute, and Mr Brown visited the ground and prepared a report to the effect that as the present line was very crooked, and passed over ground so steep and broken that no fence thereon could be durable and satisfactory, he would recommend an excambion of pieces of ground of equal value to be made, and a straighter line to be drawn on which should be placed at one part a stone dyke and at the rest a wire fence.

To this form of procedure the respondent made no exception, but to the report he objected, inter alia, (3) that the extent of march proposed to be fenced inferred a cost totally out of proportion to the value of the land to be fenced; and (4) that the report proposed to leave with the respondent, at least at one point, a piece of ground so narrow and so surrounded by the proposed new fence and by an existing old one as to be useless.

The Sheriff-substitute issued the following interlocutor :-“19th Feb

* Act 1661, c. 41, inter alia, “Statuts and ordaines that wher inclosours fall to be upon the border of any person's inheritance, the next adjacent heritor sball be at equall paines and charges in building, ditching, and planting that dyk which parteth their inheritance, and recommends to all lords, shirreffs, and bailies of regalities, stewarts of stewartries, and justices of peace, bailies of burroughs, and other judges whatsoever, to see this Act put in execution, and to grant processe at the instance of the partie damnified and prejudged, and to see them repaired after the form and tenor of this Act above written in all points."

Act 1669, c. 17, provides,“ That whenever any person intends to enclose by a dyke or ditch upon the march betwixt his lands and the lands belonging to other heritors contiguous thereunto, it shall be leisome to him to require the next sheriffs or bailies of regalities, stewarts of stewartries, justices of peace, or other judges ordinary, to visit the marches alongst which the said dyke or ditch is to be drawn, who are hereby authorised when the said marches are uneven or otherwise incapable of ditch or dyke, to adjudge such parts of the one or other heritor's grounds as occasion the inconveniency betwixt them from the one heritor in favours of the other, so as may be least to the prejudice of either party, and the dyke or ditch to be made to be in all time thereafter the common march betwixt them, and the parts so adjudged, respective from the one to the other, being estimat to the just avail and compensed pro tanto, to decern what remains uncompensed of the price to the party to whom the same is wanting ; and it is hereby declared that the parts thus adjudged hinc inde shall remain and abide with the lands or tenandries to which they are respective adjudged, as parts and pendicles thereof in all time coming."

certificaarther, alins there the reg the

ruary 1872.—Repels the objections stated by the respondent to the report No. 22. No. 9: Approves of the line of boundary laid down in the report, and relative plan and certificate, and of the proposed interchange of portions Nov. 26, 1872.

Lord Advocate of ground, as specified in said certificate and report, and of the estimate Sin resulting in equalisation of value : Farther, approves of the description and character of fence to be erected, and ordains the same to be erected forthwith: Appoints the petitioner to lodge draft of the requisite contracts for the execution thereof, after being approved of by the Court, preparatory to the completion of the work: Reserves all questions of expenses," &c.

Mr Sinclair appealed to the Sheriff, who, on 22d February 1872, pronounced the following interlocutor :-“ 22d February 1872.-Dismisses said appeal, and adheres to the interlocutor submitted to review: And in virtue of the Act 1669, c. 17, the Sheriff hereby adjudicates such parts of the ground of Her Majesty, being 3 roods and 121 poles, as occasion the inconveniency betwixt the Crown lands and those of the respondent, to belong to the respondent, and such parts of the ground of the respondent, being 1 acre 1 rood and 22 poles, as occasion the inconveniency betwixt his lands and the Crown's lands to belong to Her Majesty, and the dyke and fence to be made to be in all times thereafter the common march betwixt them, and decerns; reserving all questions of expenses.” *

On the case returning to the Sheriff-substitute he pronounced this interlocutor :-“ 31st May 1872.-Approves of the advertisements of the offers of John Orrock and Donald Mackay mentioned in said minute, and of the drafts of the contracts with them : Authorises the said contracts to be extended and executed, and the necessary works to be completed in terrns thereof: Quoad ultra reserves consideration of the cause," &c.

The respondent appealed.

Argued for him ;-Looking to the nature of the ground the Act of 1669 does not apply. The expense of the fence, being about £70 or £80, is too great, in comparison with the value of the patches of ground which it is to separate, the said value being about two guineas a-year. The petition was incompetent (1) as not being for the mutual advantage of the parties ;' and (2) as craving a remit to a man of skill instead of a visitation by the Sheriff, as appointed by the Act.

Argued for petitioner ;-—The objection of the respondent all along has not been to the competency of the petition, nor to any fence being erected at all, but to the particular fence. The visitation of the Sheriff was dispensed with by consent of parties, and was not of the essence of the Act.

* "NOTE. . . . . The 3d objection is vague, and in one view is an answer or defence to the application, which should have been stated long ere now. But it was explained that it had reference to the value of the braes along which the fence is to be constructed, to the exclusion of the valuable arable land on the top. The land deriving the benefit of the new fence the Sheriff considers to be the arable land, and hence this objection fails.

“As regards the last (4th) objection, the road shewn on the plan (which the Crown says is public, and the respondent says is of another character), explains why the reporter did not feel warranted in doing anything to interfere with rights not in question in this process.

"It is proper to mention, with reference to the requirements of the Act 1669, that it was stated at the debate that in respect of the Sheriff-substitute's knowledge of the locality his visiting the proposed march had been dispensed with by both parties. The Sheriff happens also to know the ground.”

* Earl of Cassilis v. Paterson, Feb. 28, 1809, F. C. ; Earl of Peterborough v. Carioch, 1784, M. 10,497 ; Penman v. Douglas, 1739, M. 10,481.

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